Granite State Outdoor Advertising, Inc. v. City of Clearwater
351 F.3d 1112
11th Cir.
2003
Check Treatment
Docket

*2 BIRCH, Before ANDERSON and PROPST*, Judges, and District Circuit Judge.

BIRCH, Judge: Circuit In appeal, we must determine properly whether the district court denied plaintiff-appellant’s, Granite State Outdoor (“Granite State”), Advertising, request Inc. injunctive for relief against defendant-ap- Clearwater, pellee, of Florida (“the “Clearwater”), City” or after several permit applications to construct billboards in were denied under Article City’s Community Division 18 of the De- (“the Code”). velopment Code The dis- trict court ruled that Granite State had entirety of Arti- cle Division but not part part gov- Article of the Code that permit appeals erns the denial process. The district court denied relief that, ruling based on its after unconstitu- tional of Division 18 were sev- ordinance, ered from the remainder of the remaining provisions were constitu- consideration, Upon tional. we AFFIRM in part, RE- part, REVERSE and MAND.

I. BACKGROUND1 a Georgia corporation Granite State is Webb, Dow, Edward Adam Lohnes & the business buying leasing land Albertson, Atlanta, GA, for Plaintiff-Ap- upon signs which to construct and bill- pellant. boards be used both commercial and purposes. non-commercial Brinton, Towers, D. Rogers William billboard, has never operated erected or P.A., FL, Russell, Rogers, Christine M. nor it held a has its own name to Towers, Jacksonville, Bailey, Gay, Jones & erect a billboard. Granite State receives FL, Defendants-Appellees. profits per- its from the sale of billboard mits it from obtains various cities and mu- nicipalities, some which have been ob- * Propst, Honorable Robert B. United States 1. The facts in this case that we relate are Judge District for the District Northern undisputed. Alabama, sitting by designation. grounds requesting Amendment in- litigation similar to the case through

tained junctive relief.2 us. before political is a subdivision Clearwater regulates Article Division 18 both itself as of Florida and describes

the state signs commercial and non-commercial community on the west coast a “resort required dictates when are before miles of with more than five the state signs may particu- certain be erected. In and with a on the Gulf of Mexico” beaches lar, § regulates “[p]ermitted signs 3-1806 economy. tourism-based Clearwater requiring development review.” Part B.l. Clear- Cmty.Dev.Code non-residential, of this section with deals *4 cities, water, many other has codified like freestanding signs, and it was under this a com- sign regulations to create various § per- of 3-1806 that part Granite State’s regulating, inter scheme for prehensive Specifically, subparts mits were denied. number, alia, permitting, placement, the (c) (e) § and of 3-1806.B.1. dictate the size, and mainte- height, design, operation, of height, respectively, allowable area and City’s the bound- signs nance of within freestanding sign. a Article sets forth (2003). The §§ aries. Id. 3-1801-1807 process obtaining various levels of sign regulations of many purposes these permit approval ap- and also details the safety and aesthetics of the include traffic of peals process permit. to contest denial a (1999). § community. Id. granted The district court Granite State entered into lease entirety of Arti- standing to of eight parcels a total of agreements for cle Division 18 on First Amendment in located in commercial or property real applied both as and under the grounds, of Granite dustrial areas Clearwater. doctrine, overbreadth and denied stand- operate was to construct and goal State’s challenge any part of Article on ing freestanding sign on each one billboard find the ground. either Because we dis- The denied each parcel property. doc- misapplied trict court overbreadth applications be of Granite State’s trine, grant we reverse the district court’s to construct applied cause Granite standing State to Granite more than four times the allow billboards City’s ordinance that sign height and ten times the allowable able (i.e., in give injury to an fact did not rise Rath regulations. area under Clearwater 3-1806.B.L), than and provisions other permits, of its appeal er than denial proceed- ease for further we remand this litiga the current State initiated af- this We ings consistent with chal in the Middle District of Florida tion (1) the district court’s denials firm constitutionality of Article lenging the challenge any part of Article and Article 4 of Clearwater’s Division 18 relief, attorney’s and fees. on First Community Development Code regarding rulings claims that the Initially, requested court’s its 2. Granite State also in- Mayor, Brian junctive relief from Clearwater the Fourteenth Clearwater ordinance violates Sr., City Manager, Aungst, its William guarantee equal protection Amendment district court dismissed Granite Horne. The Takings Clause. the Fifth Amendment's against both State's claims defendants these Accordingly, not before us: these issues are capacities. individual and official in their clearly raised the briefs are “Issues not challenged appeal; was not This dismissal Crosby, v. Hardwick considered abandoned.” therefore, only remaining be- defendant (11th Cir.2003) n. 140 Additional- fore us is the of Clearwater. omitted). (citations appealed ly, Granite State has not exceptions pru II. Certain DISCUSSION standing requirements have devel dential Standing A. Supreme jurisprudence. Court oped case is the “overbreadth Significant III, § 2 Article United doctrine,” exception applies requires that there be States Constitution involving non First Amendment cases “controversy” a a “case” or before federal speech commercial and that third- Const, may court decide a case. U.S. art. a party when statute is constitu Ill, e.g., Lujan v. Defenders of tionally applied litigant might to the but 555, 559-60, 112 Wildlife, 504 U.S. S.Ct. unconstitutionally applied par to third be (1992). 2130, 2136, 119 L.Ed.2d 351 See, e.g., Village ties not before the court. for a federal requirements constitutional Schaumburg v. Citizens Better adjudicate accompanied court to a case are Env’t, by prudential requirements. The over- Spear, Bennett doctrine, however, excep is not an breadth L.Ed.2d 281 standing requirements. tion to the constitutional *5 560, 112 Lujan, 504 U.S. at S.Ct. at 2136. Fla., County, Bis v. Osceola choff Together, pruden these constitutional and (11th Cir.2000). 222 plain F.3d 884 A tial requirements form the doctrine seeking tiff to an chal make overbreadth See, Bennett, standing. 520 at e.g., U.S. lenge must first show that he has suffered 1161; Lujan, 117 at 504 at S.Ct. U.S. fact, injury required an as under Article 560, 112 at 2136. S.Ct. See, e.g., Virginia III. v. Am. Booksellers Inc., 383, 392-93, Ass’n 484 108 U.S. S.Ct. Supreme Court has identi 636, 642-43, 98 L.Ed.2d 782 Vil requirements fied three constitutional lage Schaumburg, 444 at 100 U.S. standing, all of which must be satisfied: 834; Bischoff, at 222 at S.Ct. F.3d (1) fact, injury in meaning injury an an particularized, that is concrete and and “injury requires An in fact” the (2) imminent, actual or a causal connection that plaintiff personally “show he has injury conduct, between the and the causal injury.” suffered some actual or threatened injury and a likelihood that the will be Valley Forge College Christian v. Ameri See, by redressed a favorable decision.3 Separation cans United Church and Bennett, e.g., 520 at 117 at US. S.Ct. State, 464, 472, 752, 758, 102 S.Ct. 1163. The Court has identified three added) also (emphasis 70 L.Ed.2d 700 See, prudential standing principles. (internal e.g., omitted). quotations While this Wright, Allen v. U.S. requirement precisely, is hard to define we (1984). S.Ct. plaintiff know that the must at claim least principle party Relevant here is the that a personally e.g., suffer some harm. generally may only assert his or her own Lujan, 504 at at U.S. 2137-38; rights and cannot raise the claims of third United States v. Students Chal parties lenging Regulatory Agency not before the court. id. Procedures met, requirements jurisdic- 3. Because these are have been we review the district court's tional, we must consider them as a threshold denial of relief under the abuse of matter, standard, de novo regardless parties of whether or discretion but "we review the court below has done so. Focus by determinations of law made Auth., Kidder, Co., Family Peabody v. Pinellas Suncoast Transit & Inc. court en route." Brandt, (11th Cir.2003). (11th we F.3d Once Cir. 1997). standing requirements determine 669, 686-87, (SCRAP), proceed- ed to the district court for further ings consistent with this 2. Article the Clearwater Commu- k of 18, § 8-1806.B.1. 1. Division nity Development Code Develop- Community Cleanuater Granite State does not have ment Code Article 4 of the Code case, only harm that Granite In this injury because it has suffered no with re under 3- personally has suffered is gard City’s permitting appeals to the Community of the Clearwater 1806.B.1. process.5 argues Granite State that it did It was under Development Code. allegedly avail itself unconstitu State’s billboard provision process tional appeals because the ordi Granite State has permits were denied. not contain procedur nance does sufficient injury regarding any other suffered no specific al safeguards. The constitutional Thus, in Article Division 18. provision defect, State, according to Granite is the has an fact officials have unlimited constitutionality only 3-1806.B.1. of time to decide grant amount whether to and, under the overbreadth applied as deny application. Such doctrine, to non-commercial applied itself, argument, by not create Article does speech. standing. III Granite State has neither alleged City’s permit nor shown how the provision was constitu This appeals procedure injured ting has *6 sought to State: it tionally applied Granite contrary, Granite State. To the the record sign larger much to construct a billboard shows that Granite were State’s any sign than allowed under the Clear- a time: denied within reasonable the same Moreover, regulations. water because See, they day e.g., were submitted. Unit gives § 3-1806.B.1. is content-neutral and 737, 745, Hays, 115 ed States v. 515 U.S. authority, permitting no discretion to the (1995) 2431, 2436, S.Ct. 132 L.Ed.2d 635 See, e.g., not provision is overbroad.4 only residing voters (holding those 313, 322, Baxley, 355 78 Staub v. U.S. unconstitutionally allegedly an drawn vot 277, 282, (1958); 2 Hor S.Ct. L.Ed.2d 302 ing challenge district have to 1318, district); 272 City Augustine, ton v. St. F.3d unconstitutionality voting of (11th Cir.2001). Thus, Morton, 739, 727, 1331-32 Granite Sierra Club v. 405 U.S. 1361, 1368, challenge constitutional to 3- 92 31 L.Ed.2d 636 State’s S.Ct. party that a (affirming requirement fail. This is remand- “[t]he

1806.B.1. must issue claim, § a alleged provision State's 1983 is not substitute 4. Granite State has that this speech per- prior standing requirements. a because a is restraint the constitutional required may a be mit is before billboard plaintiff bring a Section 1983 allows a restraint, prior is not a erected. This section exhausting state ad- claim into court without however, why for the same reasons an over- See, e.g., Patsy appeals. v. Bd. ministrative of challenge breadth will fail: it is content-neu- Fla., Regents 457 U.S. of gives permitting no discretion to the tral and 2557, 2559-60, 73 L.Ed.2d 172 102 S.Ct. authority. e.g., Baxley, U.S. Staub v. 355 not, however, plain- permit a It does 277, 282, 78 S.Ct. appeals process that the tiff (1958); City Augustine, 272 Horton v. St. forego showing plaintiff chose to without Cir.2001). (11th F.3d 1332 by potential harm caused the chal- actual or appeals process. lenged 42 U.S.C. 1983 forms 5. We note that while statutory jurisdictional basis for Granite 1118 noted, however, judicial if re- allege showing review must facts

seeking “[e]ven affected”). relatively speedy, such adversely view were review that he is himself cannot standards to substitute concrete distinguishable is note this case We guide decision-maker’s discretion.” involv Supreme from a line of Court eases Id., Thus, 108 S.Ct. at 2151. time limits (but with) ing beginning City Lake required are when their lack could result Co., Publ’g wood v. Plain Dealer 486 U.S. censorship viewpoints of certain 750, 755-56, 2138, 2140, 100 108 S.Ct. see, ideas, e.g., v. Maryland, Freedman (1988), precedent L.Ed.2d 771 from 51, 58-59, 380 85 U.S. 13 same, relying allowing our circuit on the (1965), categori- 649 but are not L.Ed.2d facially litigants licensing cally required permitting when the scheme vesting scheme the decision-maker with Chicago is content-neutral. Thomas v. FW/PBS, unbridled discretion.6 Dist., 316, 322-24, Park 122 S.Ct. Dallas, City Inc. v. 493 223- 775, 780-81, (2002); 151 L.Ed.2d see 783 596, 603-04, Adver., also State Outdoor Inc. v. Frandsen, v. United States City Petersburg, St. 348 F.3d (11th Cir.2000); F.3d Gold that, (noting “In ... particular, Publ’ns, Inc. Corrigan, Coast v. F.3d per Court never stated time limits were se (11th Cir.1994); 1336, 1343 Dimmitt v. required permitting for a [content-neutral] Clearwater, Rather, to be valid. scheme the Court (11th Cir.1993); Gonzalez, v. Abramson simply required held all that was were (11th Cir.1992); F.2d Senti ‘adequate guide standards to the official’s Watts, nel Communications Co. subject judicial discretion and render (11th Cir.1991). 1189, 1197-98 F.2d ”) (citations omitted). review.’ Lakewood, city mayor In given was Community Develop- The Clearwater unguided pub- discretion to decide which gives ment Code no similar discretion place public lishers could newsracks on permitting authorities existed property they placed. and where could be cases such as Lakewood. can officials *7 at 2142. 486 U.S. 108 S.Ct. at The only process permit application a and de- Court held such unbridled discretion grant deny cide to or the based in permitting the official “constituted a objective specific, (e.g., height, the criteria may in prior restraint and result censor- size, or surface area of a proposed sign). 757, ship.” Id. at 108 S.Ct. at 2144. The Moreover, litigants we note that the granted then plaintiff standing Court the Lakewood, facially who were allowed to facially challenge this defect in the ordi- ground an ordinance on the 755-56, nance. Id. at at 108 S.Ct. 2143. gave it permitting authorities unbridled discretion, injured challenged permit very Similar to the were under the case, Lakewood, ting scheme in this the in provisions they challenged. ordinance 754, Lakewood also did not contain time limits 486 U.S. at 108 S.Ct. at 2142. As we Mayor which explained, within the had to decide have this is not the circum- State, grant deny permit. whether to or to a Id. stance for Granite which suffered no 771, at at majority injury 108 S.Ct. 2151-52. The fact under Article 4.7 all, prior discussing standing 6. To the extent of our decisions at such cases are in- apposite present the case. allowed facial without first deter- mining litigant whether was entitled to as- Moreover, Granite State Outdoor 7. noted in as applied standing mentioning without or Adver., Petersburg, Inc. v. St. possi- it is § deny- damages, court be entitled to 3-1806.B.1. As of the district judgment explained, we have section was State ing Granite facially unconstitutionally applied under to Granite State. applied 4 Article both is, therefore, Accordingly, af- is not entitled doctrine the overbreadth damages resulting from the denial its firmed. permits under this section. The district damages court’s denial of is affirmed. B. Mootness requirement of stand Like Attorney’s C. Fees justiciability a doctrine mootness is ing, may argues it satisfied before we de Granite State that must be States Pa should be entitled to award of attor e.g., cide a case. United 388, 1988(b), ney’s pursuant § 445 fees to 42 U.S.C. Geraghty, v. U.S. role Comm’n 1202, 1208-09, 63 which' the court to award attor 100 S.Ct. (1980). jurisdiction ney’s “prevailing party” fees to the 479 We lack L.Ed.2d pre brought rights the issues actions under various civil because of mootness “when including § longer parties provisions, no ‘live’ or the U.S.C. sented are 1988(b). cognizable argues interest in the U.S.C. legally lack a McCormack, that, while it did not succeed on all of its Powell v. 395 U.S. outcome.” 1951, court, 1944, claims nevertheless 89 S.Ct. case, City argues attorney’s should be entitled to fees be In this it has achieved “excellent results” claims are now moot cause that Granite State’s parties may sought for third who have has revised the Code because Clearwater post sign court’s deci a under the in accordance with the district by the district court. request Granite State has ordinance stricken sion. Because 1988, however, Appellant’s Br. at 40. Under how damages, changes made to ed ever, plaintiff “prevail is do not make this case moot. considered the ordinance if “at some Firefighter’s ing party” Local No. he obtains least Union 571, ... Stotts, 561, of his claim” 104 S.Ct. relief on the merits U.S. (1984); materially legal relation Havens alters “[that] 81 L.Ed.2d 483 363, Coleman, Farrar v. Hob ship parties.” between the Realty Corp. v. 103, 111-12, by, 506 U.S. 113 S.Ct. 102 S.Ct. L.Ed.2d (1992) (citations omit Mesquite see also v. Aladdin’s Helms, Castle, Inc., ted); Hewitt v. 482 U.S. *8 1074, L.Ed.2d 654

1070, (“repeal objectionable Falanga not see also v. State Bar language of the would (11th Ga., .1333, reenacting from 1347 n. 34 Cir. preclude F.3d [Clearwater] 1998). Furthermore, judi favorable provision “[a] if the District precisely the same vacated”). Thus, litiga cial of law the course judgment were Court’s statement constitutionality judgment against that results in must rule on the tion we him a to render may plaintiff which Granite State does suffice provision under potentially standing challenge Article we find “City lacks ble that the officials could appli- dealt with if and delay processing such "abuse must be of certain ap- pattern thereby arbitrarily suppress of unlawful favoritism disfa- when cations Thomas, (11th pears.” (quoting Id. at 1282 speech.” vored 781). Cir.2003). at we State U.S. at Because find Granite S.Ct ” Hewitt, ANDERSON, Judge, party’ under 1988. Circuit ‘prevailing concurring: 2677. 482 U.S. at 107 S.Ct. at I concur the result. case,

In Granite State is not this relationship and the “prevailing party” parties between the is unaltered.8 We 1306.B.1.was con

have determined and is

stitutionally applied to Granite State deter

facially constitutional. We also in al that the district court erred

mined

lowing standing

any other in Article Division Moreover,

18. we determined correctly ruled that Granite

district court standing did not have Thus,

Article 4. Granite State has not

prevailed regarding of its claims Community Development the Clearwater Holly ANDREWS, P. Claimant- court’s denial of an Code. district Appellant, attorney’s award of fees is affirmed. Anthony PRINCIPI, Secretary J. III. CONCLUSION Affairs, Respondent- Veterans Appellee. The district court erred in its conclusion chal- that Granite State had No. 03-7053. lenge entirety of Article Division 18 Appeals, States Court of United Community Develop- of the Clearwater Federal Circuit. Accordingly, part of ment Code. this Dec. reversed and re- holding district court’s is proceedings manded for consistent with correctly The district court

denied State both to chal-

lenge Article relief be- provision

cause the under which Granite permit requests

State’s were denied is not Moreover,

unconstitutional. the district correctly

court denied Granite State’s re-

quest attorney’s Accordingly, fees.

judgment of court AF- is part, part,

FIRMED in REVERSED proceedings

and REMANDED for further *9 with

consistent this Adver., [State], bearing 8. As in Granite State Outdoor Inc. v. "have no on Granite and thus Petersburg, St. it is true that several pre- their alteration does not serve to confer provisions in the Clearwater ordinance were vailing party upon [State].” status voluntarily by altered as a result of 348 F.3d at n. 8. however, changes, litigation. These