Florida Beach Advertising, LLC et al v. City of Treasure Island, Florida

Filing 63

ORDER: Defendant City of Treasure Island, Florida's Motion for Summary Judgment (Doc. # 45) is granted in part and denied in part as set forth herein. Plaintiffs' Amended Motion for Summary Judgment (Doc. # 55) is granted as to Count I and denied as to Counts II and III. Section 73-34(10) of the City's Sign Code is an unconstitutional prior restraint on speech and the City is hereby enjoined from enforcing it. The Court will enter a permanent injunction order at the close of the case. Signed by Judge Virginia M. Hernandez Covington on 1/6/2021. (AR)

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 1 of 44 PageID 888

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FLORIDA BEACH ADVERTISING,
LLC, and DAVID M. DUVERNAY,
Plaintiffs,
v.

Case No. 8:19-cv-3113-T-33TGW

CITY OF TREASURE ISLAND,
FLORIDA,
Defendant.
/
ORDER
This matter comes before the Court upon consideration of
Defendant

City

of

Treasure

Island,

Florida’s

Motion

for

Summary Judgment (Doc. # 45), filed on November 6, 2020, and
Plaintiffs

Florida

Beach

Advertising,

LLC,

and

David

M.

Duvernay’s Amended Motion for Summary Judgment, filed on
November 25, 2020. (Doc. # 55). The parties have responded to
each Motion. (Doc. ## 57; 61). For the reasons set forth
below, both Motions are granted in part and denied in part.
I.

Background
Duvernay is the owner and operator of Florida Beach

Advertising, a business that sells advertising space on a
“30-foot-wide,

14-foot-tall

digital

advertising

screen”

attached to a boat named the “Get Lit.” (Doc. # 48 at 16:45, 18:15-22). Although it is disputed precisely where Florida
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Beach Advertising operates the Get Lit, the parties agree
that it advertises around the coast of Pinellas County and
within certain waterways. (Doc. # 48 at 23:21-24:4).
On October 5, 2019, Duvernay received a citation for an
alleged violation of Section 58-44 of the City’s Code of
Ordinances, which provides: “No person shall post or display
any sign, banner or advertisement unless licensed so to do by
the city commission as a concessionaire or a licensee under
a written concession or license agreement or lease.” (Doc. ##
49-1;

58-1).

According

to

the

citation,

Duvernay

was

“observed operating a commercial vessel within the waterways
of

Treasure

Island

advertisement

with

billboard,”

an

attached

without

the

electronic/changing
City’s

permission.

(Doc. # 49-1) (emphasis omitted).
Before receiving this citation, Duvernay was planning on
participating

in

the

American

Legion

of

Madeira

Beach’s

Twenty-Third Annual Veteran’s Day Boat Parade. (Doc. # 48 at
43:23-44:7).

In

his

deposition,

Duvernay

stated

that

Plaintiffs intended to sponsor the Parade. (Id. at 45:2446:6). The Parade begins at the American Legion in Madeira
Beach

and

travels

through

some

of

Treasure

Island’s

waterways. (Doc. # 47 at 12:4-12). Because it was set to pass
through the City’s waterways, Duvernay contacted the City
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about displaying a sign during the Parade. (Doc. # 48 at 49:25). The parties dispute precisely what that request entailed.
In his deposition, Duvernay states that he asked a City
employee for permission to display a sign that stated, “Thank
you, veterans,” in the Parade, and told the employee that he
“had no intention of doing any advertising whatsoever.” (Id.
at 51:5-23). The City counters that Duvernay only told the
City that he would be participating in the Parade. (Id. at
48:25-49:5). The parties agree, however, that whatever the
conversation included, no permit to participate in the Parade
was issued. (Doc. # 49 at 30:22-31:4).
Thereafter, on October 16, 2019, Duvernay posted an
apology to the social media website Facebook, stating that
Plaintiffs would no longer be able to participate in the part
of the Parade that passed through the City’s waterways:
For everyone who will be present and supporting our
#Veterans at the 2019 23rd Annual Veterans Boat
Parade. Unfortunately Florida Beach Advertising
will have to stop half through the parade because
Treasure Island, Florida and Treasure Island City
Hall won’t allow us to display a “Thank You
Veterans” sign on our boat. We apologize to
American Legion Post 273 Madeira Beach, Fl 33708
and American Legion, Post 158, Treasure Island, FL
for any inconvenience this may cause.
(Doc. # 48 at 50:18-24, 57:25-58:2; Doc. # 49-3). The Facebook
post garnered over 500 comments and included an image of the

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boat and sign. (Doc. # 49-3). Plaintiffs characterize these
comments as critical of the City. (Doc. # 48 at 55:19-21).
The next day, on October 17, 2019, City Commissioner J.
Tyler Payne e-mailed Duvernay apologizing for the ordeal and
providing him with steps he would have to take to get the
City’s approval of his sign for the Parade. (Doc. # 48 at
57:5-20; Doc. # 49-4 at 1). Payne followed up, stating: “I
just spoke with the City Manager and I am hopeful that we can
get the necessary license and authorization on the Agenda for
the November 5th Commission Meeting.” (Doc. # 49-4 at 1-2).
Duvernay then applied through email to the City Commission
for a permit to display his sign during the portion of the
Parade that travelled through Treasure Island waters. (Doc.
# 48 at 57:14-18; Doc. # 49 at 20:19-21:9; Doc. # 49-6).
Specifically, Duvernay requested a license under Section 5844 and a waiver under Section 73-34(10) of the City’s Code of
Ordinances.1 (Doc. # 49-6). The City Manager, Garry Brumback
responded that he would put the requests before the City
Commission at the November 5, 2019, meeting. (Doc. # 49 at
1. Section 58-44 of the Code of Ordinances is contained in
Chapter 58 of the Code, which regulates waterways. (Doc. #
58-1 at 1). Section 73-34(10) is contained in Chapter 73 (the
“Sign Code”), which regulates signs. (Doc. # 49-10). In their
complaint, Plaintiffs challenge only the constitutionality of
the Sign Code. (Doc. # 1 at ¶¶ 9 n.1, 40, 46, 48-49).
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21:10-19; Doc. # 49-6).
At the meeting, Brumback introduced the item by noting
that he originally intended to allow Plaintiffs to display
the sign during the Parade. (Doc. # 49 at 31:15-21, 32:3-5).
However, in Brumback’s words, he could no longer recommend
doing so “in good conscience” because “at that point it got
really ugly and it became a series of bullying and threatening
posts on Facebook that even named a couple of members of [the]
Commission. And it outwardly stated that [the] Commission was
anti-veteran, as was I.” (Id. at 31:19-32:5). Following some
contentious exchanges, the City Commission voted unanimously
to reject Duvernay’s request, with Payne absent. (Id. at
45:13-46:8). The City admits that it has no written criteria
by which such a request should be evaluated, although other
sections of the Code of Ordinances do include certain criteria
for the City to grant zoning variances. (Id. at 22:12-15;
Doc. # 61 at ¶ 20; Doc. # 60-1). The parties present no
evidence that any individual has ever applied for or received
an exemption to Section 73-34(10). (Doc. # 49 at ¶ 58:14-18).
Despite the City’s denial of his application, Duvernay
participated in the Parade as originally planned. (Doc. # 48
at 61:19-62:13). During the length of the Parade, Duvernay
displayed

a

sign

stating “Thank
5

You

Veterans! God

Bless

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America,” and featuring a bald eagle and American flag:

(Doc. # 48 at 61:22-62:1; Doc. # 49-8 at 8; Doc. # 49-13).
Duvernay did not exit the Parade before entering Treasure
Island waters. (Doc. # 48 at 62:2-7).
At the conclusion of the Parade, Duvernay received a
citation from the Treasure Island police marine unit for
violating Section 73-34(10) of the Sign Code, which prohibits
“[s]igns in or upon any river, bay, lake, or other body of
water within the limits of the city, unless authorized by the
city commission.” (Doc. # 48 at 63:24-64:2; Doc. # 49-9; Doc.
# 49-10 at 9-10). The November 9, 2019, citation stated that
Duvernay “was observed in the intracoastal waterway between
Isle of Capri and Isle of Palm” and that “city permission was
denied for the billboard on [November 5, 2019,] to operate
within city limits.” (Doc. # 49-9) (emphasis omitted). No

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other boat captain participating in the Parade received a
citation for violating the Sign Code, despite other boats
also displaying signs. (Doc. # 46 at 27:24-28:16, 29:16-19;
Doc. # 47 at 27:13-19; Doc. # 48 at 93:9-94:13).
Duvernay was again cited on December 21, 2019, for a
purportedly separate violation of Section 73-34(10) of the
Sign Code. (Doc. # 49-12). The citation provides that Duvernay
was observed advertising with a large electric sign within
the City’s boundaries. (Id.). The prosecution of all three
citations issued by the City against Duvernay is currently
pending in state court. (Doc. # 50-1 at 2).
Plaintiffs initiated this action on December 19, 2019.
(Doc. # 1). The complaint includes claims against the City
for a facial First Amendment challenge (Count I), an asapplied First Amendment challenge (Count II), and preemption
of Section 73-34(10) (Count III). (Id.). The City filed an
answer on February 27, 2020. (Doc. # 27). The parties now
both seek entry of summary judgment in their favor. (Doc. ##
45; 55). Each party has responded, and the Motions are now
ripe for review. (Doc. ## 57; 61).
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
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the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the Court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
burden,

the

non-moving

party

must

then

‘go

beyond

the

pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
8

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for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the Court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
response consists of nothing “more than a repetition of his
[conclusory]

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,

the

filing

of

cross-motions

for

summary

judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 5389

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39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary
judgment

will

not,

granting

summary

in

themselves,

judgment

unless

warrant
one

of

the

the

court

in

parties

is

entitled to judgment as a matter of law on facts that are not
genuinely disputed[.]” (citation omitted)).
III. Analysis
Both parties have filed Motions for Summary Judgment.
(Doc. ## 45; 55). The Court will address each Motion in turn.
A. City of Treasure Island’s Motion
The City argues that it is entitled to an entry of
judgment in its favor because Florida Beach Advertising and
Duvernay lack standing to assert their claims. (Doc. # 45 at
2-3). Specifically, the City posits that “Plaintiffs cannot
establish standing as to Counts I and II of their Complaint
if governance of the waterway that is the subject of the
ordinance and citation at issue . . . is preempted by Florida
law.” (Id. at 3). Further, the City argues that Florida Beach
Advertising “lacks standing because there are no facts which
demonstrate that there was any enforcement action against
it.” (Id. at 4).
Standing “is the threshold question in every federal
case.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Under
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Article

III

of

the

Constitution,

standing

“requires

a

plaintiff to provide evidence of an injury in fact, causation,
and redressability.” Dermer v. Miami-Dade Cnty., 599 F.3d
1217,

1220

(11th

Cir.

2010)

(citing

Lujan

v.

Defs.

of

Wildlife, 504 U.S. 555, 560-61 (1992)). The burden is on
Plaintiffs,
[Court’s]

“as

the

[parties]

jurisdiction,

to

seeking

produce

to

facts

invoke

this

sufficient

to

support Article III standing.” Keister v. Bell, 461 F. Supp.
3d 1152, 1164 (N.D. Ala. 2020). “[W]hen standing is raised at
the summary judgment stage, . . . the plaintiff must set forth
by affidavit or other evidence specific facts, which for
purposes of the summary judgment motion must be taken to be
true.” Bischoff v. Osceola Cnty., 222 F.3d 874, 878 (11th
Cir. 2000) (citations omitted).
1. Injury in Fact
First, the Court must address whether Plaintiffs have
suffered an injury in fact. “An injury in fact requires the
plaintiff to show that he personally suffered some actual or
threatened injury.” CAMP Legal Def. Fund, Inc. v. City of
Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006) (citations
omitted). The injury must be “concrete and particularized,
not conjectural or hypothetical.” Am. Civ. Liberties Union of
Fla., Inc. v. Dixie Cnty., 690 F.3d 1244, 1249 (11th Cir.
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2012) (citations omitted).
However,

“the

injury-in-fact

requirement

is

applied

‘most loosely where First Amendment rights are involved, lest
free speech be chilled even before the law or regulation is
enforced.’” Rubenstein v. Fla. Bar, 69 F. Supp. 3d 1331, 1338
(S.D. Fla. 2014) (quoting Harrell v. Fla. Bar, 608 F.3d 1241,
1254 (11th Cir. 2010)). Accordingly, “an actual injury can
exist when the plaintiff is chilled from exercising [his]
right to free expression or forgoes expression in order to
avoid enforcement consequences. In such an instance[,] . . .
the injury is self-censorship.” Pittman v. Cole, 267 F.3d
1269, 1283 (11th Cir. 2001) (citation omitted).
“Thus, the justiciability of a First Amendment claim
does not require the plaintiff to already have been subjected
to prosecution; rather, the plaintiff must show that ‘(1) he
was threatened with prosecution; (2) prosecution is likely;
or

(3)

there

is

a

credible

threat

of

prosecution.’”

Rubenstein, 69 F. Supp. 3d at 1339 (quoting Am. Civ. Liberties
Union v. Fla. Bar, 999 F.2d 1486, 1492 (11th Cir. 1993)). To
demonstrate a “credible threat of prosecution,” the plaintiff
must

show:

expression

(1)
that

“that
is

at

he

seriously

least

wishes

arguably

to

engage

forbidden

by

in
the

pertinent law”; and (2) “that there is at least some minimal
12

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probability that the challenged rules will be enforced if
violated.”

Harrell,

608

F.3d

at

1260

(citation

omitted)

(emphasis omitted).
Here, both Duvernay and Florida Beach Advertising have
sufficiently demonstrated that they have suffered an injury
in fact. Duvernay has been personally cited for purported
violations of Section 73-34(10) on at least two occasions,
and prosecution of those citations is currently pending.
(Doc. # 48 at 88:3-90:4). Additionally, Duvernay has suffered
a concrete injury simply by virtue of the fact that his
application for an exemption to Section 73-34(10) was denied.
(Doc. # 49 at 45:13-46:8); see Tinsley Media, LLC v. Pickens
Cnty., 203 F. App’x 268, 272 (11th Cir. 2006) (“Tinsley Media
has shown ‘injury in fact’ because it was denied a permit to
erect the billboards.”); Raptis v. Coweta Cnty., No. 3:07CV-22-JTC, 2009 WL 10666060, at *4 (N.D. Ga. July 16, 2009)
(“The denial of an application to erect a sign is a legally
cognizable injury.”).
As to Florida Beach Advertising, the City is correct
that it has neither been specifically named in a citation,
nor has it filed an application for an exemption that was
later

denied.

(Doc.

##

49-1;

49-9;

49-12).

However,

Plaintiffs allege that Florida Beach Advertising was “forced
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to turn the sign off and [was] prevented from advertising in
certain areas” “for fear of receiving additional citations.”
(Doc. # 57 at ¶ 16; Doc. # 48 at 36:24-37:23). Indeed, in his
deposition, Duvernay averred that Treasure Island police told
one of his customers that he was not “allowed to advertise in
Treasure Island,” and so the customer “quit paying.” (Doc. #
48 at 55:2-7, 75:17-76:5, 78:15-79:21). These are concrete
injuries to Florida Beach Advertising’s business. See ATM
Exp., Inc. v. City of Montgomery, 376 F. Supp. 2d 1310, 1321
(M.D. Ala. 2005) (finding standing where the plaintiff was
forced

to

“terminat[e]

its

sales”

due

to

the

City’s

enforcement of an ordinance).
Furthermore, the simple fact that Duvernay was the one
cited,

rather than his company, does not mean that the threat

of prosecution is any less potent, considering that Florida
Beach Advertising is in the business of operating the Get
Lit,

and

appears

to

have

been

the

entity

planning

on

sponsoring the Parade. (Doc. # 48 at 15:2-19:15, 45:24-46:6;
Doc. # 49-3). Duvernay testified that he purposely does not
display signs or advertise in or around Treasure Island waters
because of the Sign Code. (Id. at 37:7-13; 39:2-6); see
Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1375 (S.D.
Fla. Sept. 14, 2011) (“The law personally affects Plaintiffs
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because they are currently engaging in self-censorship to
avoid

potential

disciplinary

action.

This

injury

is

actual.”). Accordingly, Plaintiffs have sufficiently shown
that

both

Florida

Beach

Advertising

and

Duvernay

have

suffered an injury in fact because of the City’s enforcement
of Section 73-34(10) of the Sign Code.
Although Plaintiffs challenge the entire ordinance, the
only injury it actually claims to have suffered results from
the enforcement of Section 73-34(10) and the denial of an
exemption thereunder.2 (Doc. # 1 at ¶¶ 40, 46). The Sign Code
contains numerous other provisions, such as prohibitions on
signs that “emit sound, vapor, smoke, odor, particles, or
gaseous matter,” and others that describe the types of signs
that may be used to designate subdivisions in single-family
residential areas. (Doc. # 49-10 at 10-11). Plaintiffs have
proffered

no

evidence

that

they

have

ever

applied

for

exemptions under any of these other provisions or intend to
display any signs other than those subject to Section 73-

2. Although Duvernay’s first citation, dated October 5, 2019,
includes a violation of Section 58-44 of the City’s Code of
Ordinances, that provision is contained in Chapter 58, the
Code’s chapter regulating waterways. (Doc. # 49-1; Doc. # 581). Because this section is not contained in the Sign Code,
and Plaintiffs are only challenging the Sign Code, it is
inapplicable here. (Doc. # 1 at ¶¶ 40, 46, 48; Doc. # 58-1).
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34(10) of the Code. See CAMP, 451 F.3d at 1273-74 (holding
that the plaintiff only had standing to challenge provisions
of an ordinance that actually affected it or under which it
suffered a demonstrable injury).
Although Plaintiffs contend that they have standing to
challenge

the

entire

doctrine,

this

is

Sign

Code

incorrect.

under

(Doc.

#

55

the
at

overbreadth
11-12).

The

overbreadth doctrine allows a plaintiff to mount a facial
challenge – as opposed to an as-applied challenge – to a
statute under certain circumstances, but it “does not relieve
a plaintiff of the burden to prove constitutional standing.”
Id. at 1270. In CAMP, the Eleventh Circuit faced a similar
issue of whether a plaintiff could challenge all provisions
of a municipal ordinance when it only proved an injury under
one of its provisions, and found that the plaintiff lacked
standing to do so:
The overbreadth doctrine allows CAMP to mount a
facial challenge to provisions of the Festivals
Ordinance that harm its ability to hold a festival.
CAMP “may challenge a statute by showing that it
substantially abridges the First Amendment rights
of the parties not before the court” although its
own activities are not constitutionally protected.
Nothing in the overbreadth doctrine allows CAMP to
challenge provisions wholly unrelated to its
activities. CAMP “must show that [it] has sustained
or is immediately in danger of sustaining a direct
injury as the result of” each provision in the
Festivals Ordinance.
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Id. at 1273-74 (quoting Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 505 n.11 (1981); Laird v. Tatum, 408 U.S. 1, 13
(1972)) (alteration in original).
Therefore, Plaintiffs do not have standing to challenge
the entire Sign Code, but rather, only Section 73-34(10)
thereof. See Fla. Fam. Ass’n, Inc. v. Sch. Bd. of Hillsborough
Cnty., 494 F. Supp. 2d 1311, 1328 (M.D. Fla. 2007) (“Thus,
even with respect to a First Amendment overbreadth challenge,
plaintiffs must establish that they have suffered some injury
as a result of the defendant’s actions. Moreover, an injury
under one provision of a statute or regulation does not confer
standing on a plaintiff to challenge all provisions of that
statute or regulation.” (citations omitted)).
Accordingly, the City’s Motion is granted as to Count I
and

II

to

the

extent

Plaintiffs

challenge

the

constitutionality of provisions of the Sign Code other than
Section 73-34(10). See Advantage Advert., LLC v. City of
Hoover, 200 F. App’x 831, 833, 836 (11th Cir. 2006) (affirming
the district court’s grant of summary judgment in favor of
the defendant with regard to an entire ordinance when the
plaintiff’s only injury was “the denial of its requests for
permits to erect billboards based on [Section] 7.0(D) of the

17

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ordinance.”).
2. Causation
Next, the Court must determine whether Plaintiffs have
sufficiently demonstrated a causal connection between their
injury

and

the

City’s

conduct.

People

First

of

Ala.

v.

Merrill, 467 F. Supp. 3d 1179, 1199 (N.D. Ala. 2020). Because
the Court has already entered judgment in favor of the City
as to provisions of the Sign Code other than Section 7334(10), the Court will only address injuries resulting from
Section 73-34(10) of the Code.
“A

party

has

standing

to

challenge

only

those

provisions of a law that caused the complained-of injury.”
Roma Outdoor Creations, Inc. v. City of Cumming, 599 F. Supp.
2d 1332, 1339 (N.D. Ga. Mar. 2, 2009) (citing Granite State
Outdoor Advert., Inc. v. City of Clearwater, 351 F.3d 1112,
1114

(11th

Cir.

2003)).

“To

satisfy

the

causation

requirement, a plaintiff must demonstrate that the injury
complained of is fairly traceable to the action complained
of.” ATM Exp., 376 F. Supp. 2d at 1321.
Here, a causal connection exists between Plaintiffs’
injuries and Section 73-34(10) of the Sign Code. But for the
Code, and the City’s enforcement thereof, Plaintiffs would
have been able to display their Veteran’s Day sign at the
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Parade without receiving a citation. (Doc. # 49 at 45:1346:8; Doc. # 49-6;
Plaintiffs

would

not

Doc. # 49-9).

And, absent the Code,

fear prosecution

from

the City

for

displaying signs in the waters belonging to or near Treasure
Island. (Doc. # 48 at 36:24-37:23). Therefore, Plaintiffs
have satisfied the causation requirement.
3. Redressability
Lastly,

redressability

requires

that

Plaintiffs

“demonstrate a ‘substantial likelihood’ that a victory would
redress [their] injury.” ATM Exp., 376 F. Supp. 2d at 1323
(citations
other

omitted).

things,

an

Here,

Plaintiffs

injunction

are

seeking,

prohibiting

the

among
City’s

enforcement of Section 73-34(10) of the Sign Code. (Doc. # 1
at ¶¶ 40, 46). Such an injunction would redress Plaintiffs’
injuries. See McDonough v. Fernandez-Rundle, 862 F.3d 1314,
1318

n.2

(11th

sufficiently

Cir.

alleged

2017)

because

(“Redressability
an

injunction

is

also

barring

such

prosecution would redress McDonough’s injury.”).
Therefore, Plaintiffs have sufficiently demonstrated an
injury

in

fact,

causation, and

redressability

as to

the

enforcement of Section 73-34(10) of the Sign Code. Although
the City argues in its Motion that Plaintiffs lack standing
because the ordinance might be preempted, the Court will not
19

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 20 of 44 PageID 907

address this argument because, as later discussed, it cannot
conclude

as

a

matter

of

law

that

Section

73-34(10)

is

preempted. (Doc. # 45 at 3-4); infra Part III.B.1. It is true
that

federal

courts

have

developed

certain

prudential

considerations with regard to standing, but the erroneous
position

that

a

municipal

ordinance

is

preempted

under

Florida law does not divest a party of standing. See, e.g.,
Ruslan Shipping Corp. v. Coscol Petroleum Corp., 635 F.2d
648, 650 (7th Cir. 1980) (explaining that district courts
should attempt to decide cases on non-constitutional bases).
Accordingly, Plaintiffs have standing to assert their
claims as to Section 73-34(10) of the Sign Code, and the
City’s Motion is denied to that extent. See Tinsley, 203 F.
App’x at 272 (“Tinsley Media has satisfied the three standing
requirements.

Tinsley

Media

has

shown

‘injury

in

fact’

because it was denied a permit to erect the billboards. The
injury is causally related to the alleged constitutional
violation because the permit application was denied under the
provision that prohibits billboards. A favorable decision –
invalidation of the provision – would mean Tinsley Media
should have received approval of its application and may be
entitled

to

standing

to

damages.

We conclude

challenge

the

that

prohibition
20

Tinsley Media
on

has

billboards.”

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 21 of 44 PageID 908

(citation omitted)).
B. Plaintiffs’ Motion
In their Motion, Plaintiffs argue that they are entitled
to an entry of judgment in their favor on all three counts of
the complaint. (Doc. # 55). Because the Court has already
found

that

Plaintiffs

lack

standing

to

challenge

the

constitutionality of provisions of the Sign Code other than
Section 73-34(10), the Court will address only allegations as
to that provision of the Code.
The Court will first address Count III, Plaintiffs’
state preemption claim, as the “fundamental and longstanding
principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity
of deciding them.” Lyng v. Nw. Indian Cemetery Protective
Ass’n, 485 U.S. 439, 445-46 (1988) (citations omitted); see
also Bolbol v. Ringling Brothers, No. C-04-0082-JW, 2004 WL
7338786, at *2 (N.D. Cal. Aug. 24, 2004) (“The Supreme Court
has indicated that federal constitutional issues should be
avoided even when the alternative ground is one of state
constitutional law.” (citing Carreras v. City of Anaheim, 768
F.2d 1039, 1042 (9th Cir. 1985)) (emphasis omitted). The Court
will address the other claims in turn.

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1. Preemption of Section 73-34(10)
In Count III, Plaintiffs argue that Section 73-34(10) of
the Sign Code is expressly preempted under the Florida State
Constitution. (Doc. # 1 at ¶ 48-49). Specifically, Plaintiffs
posit that Section 73-34(10) is preempted by the Florida
Vessel Safety Law, which regulates “the operation, equipment,
and all other matters relating thereto whenever a vessel shall
be operated upon the waters of this state or when any activity
regulated hereby shall take place thereon.” Fla. Stat. §
327.60(1) (2018). The City does not address this argument in
its response to the instant Motion. (Doc. # 61).
“[T]he Court cannot base the entry of summary judgment
on the mere fact that the motion [is] unopposed.” State Farm
Mut. Auto. Ins. Co. v. First Care Sol., Inc., 232 F. Supp. 3d
1257, 1262 (S.D. Fla. 2017) (citation omitted). Rather, the
Court “must consider the merits of the motion.” United States
v. One Piece of Real Prop’y Located at 5800 SW 74th Ave.,
Mia., 363 F.3d 1099, 1101 (11th Cir. 2004). Although the Court
“need not sua sponte review all of the evidentiary materials
on file at the time the motion is granted, [it] must ensure
that

the

motion

itself

is

supported

by

evidentiary

materials.” Id. “Accordingly, the [Court] must review the
evidentiary materials submitted in support of the motion and
22

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determine whether they establish the absence of a genuine
issue of material fact.” Phila. Indem. Ins. Co. v. Manitou
Constr. Inc., 115 F. Supp. 3d 1378, 1382-83 (N.D. Ga. 2015)
(citation omitted). Thus, the Court turns to the merits of
Count III.
“In Florida, a municipality is given broad authority to
enact ordinances under its municipal home rule powers.” City
of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006).
“But municipal ordinances must yield to state statutes.”
Masone v. City of Aventura, 147 So.3d 492, 495 (Fla. 2014).
The Florida Constitution “specifically recognizes the power
of municipalities to conduct municipal government, perform
municipal functions and render municipal services, and it
specifically recognizes that municipalities may exercise any
power for municipal purposes except as otherwise provided by
law.” Id. (citation omitted) (emphasis in original). The
phrase

“‘except

as

otherwise

provided

by

law’

.

.

.

establishes the constitutional superiority of the [Florida]
Legislature’s power over [municipalities].” City of Palm Bay
v. Wells Fargo Bank, N.A., 114 So.3d 924, 928 (Fla. 2013).
“Florida law recognizes both express . . . and implied
preemption.” Vazzo v. City of Tampa, 415 F. Supp. 3d 1087,
1094

(M.D.

Fla.

2019). “On

one
23

hand, express

preemption

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 24 of 44 PageID 911

requires a specific legislative statement – it cannot be
implied or inferred –

and the preemption of a field is

accomplished by clear language. On the other hand, implied
preemption

occurs

when

the

state

legislative

scheme

is

pervasive and the local legislation would present a danger of
conflict with that pervasive scheme.” D’Agastino v. City of
Miami, 220 So.3d 410, 421 (Fla. 2017) (citations omitted).
“A

preemption

challenge

is

a

facial

attack

on

the

constitutionality of a legal enactment.” 828 Mgmt., LLC v.
Broward Cnty., No. 20-62166-CIV-SINGHAL, 2020 WL 7635169, at
*5 (S.D. Fla. Dec. 21, 2020). Therefore, the Court should
consider “only the text of the [allegedly preempted] law,
‘not

its

specific

application

to

a

particular

set

of

circumstances.’” Id. (quoting Fraternal Ord. of Police, Mia.
Lodge 20 v. City of Miami, 243 So.3d 894, 897 (Fla. 2018)).
In their Motion, Plaintiffs argue only that Section 7334(10) is expressly preempted. The language of the Florida
statute that purportedly preempts Section 73-34(10) states:
(2) This chapter and chapter 328 do not prevent the
adoption of any ordinance or local regulation
relating to operation of vessels, except that a
county or municipality may not enact, continue in
effect, or enforce any ordinance or local
regulation:
* * *

24

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 25 of 44 PageID 912

(c) Regulating any vessel
Intracoastal Waterway.
Fla.

Stat.

§

327.60(2)(c)

upon

(emphasis

the

added).

Florida
The

statute

further defines the Florida Intracoastal Waterway as:
[T]he Atlantic Intracoastal Waterway, the Georgia
state line north of Fernandina to Miami; the Port
Canaveral
lock
and
canal
to
the
Atlantic
Intracoastal Waterway; the Atlantic Intracoastal
Waterway, Miami to Key West; the Okeechobee
Waterway, Stuart to Fort Myers; the St. Johns
River,
Jacksonville
to
Sanford;
the
Gulf
Intracoastal Waterway, Anclote to Fort Myers; the
Gulf Intracoastal Waterway, Carrabelle to Tampa
Bay; Carrabelle to Anclote open bay section, using
the Gulf of Mexico; the Gulf Intracoastal Waterway,
Carrabelle to the Alabama state line west of
Pensacola; and the Apalachicola, Chattahoochee, and
Flint Rivers in Florida.
Fla. Stat. § 327.02(15).
Nothing in the Florida Vessel Safety Law states that it
regulates municipalities’ waterways. Fla. Stat. § 327.60.
Because Section 73-34(10) expressly restricts its scope to
the City’s limits, the statute and ordinance do not explicitly
overlap. (Doc. # 49-10 at 9-10 (stating that the regulation
applies only “within the limits of the city”)). And, the
Florida statute specifically notes that municipalities may
regulate bodies of water other than the Florida Intracoastal
Waterway. Fla. Stat. § 327.60(2). Accordingly, the Court
cannot conclude as a matter of law that the Florida Vessel
Safety Law expressly preempts Section 73-34(10). See Lowe v.
25

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Broward Cnty., 766 So.2d 1199, 1207 (Fla. 4th DCA 2000) (“For
the legislature to expressly preempt an area, the preemption
language

of

the

statute

must

be

specific[.]”

(emphasis

added)). Therefore, the Motion is denied as to Count III.
2. Facial First Amendment Challenge
In Count I, Plaintiffs allege that Section 73-34(10) is
“facially

unconstitutional

as

it

contains

insufficient

standards for local officials to apply and fails intermediate
scrutiny as it fails to leave ample room for expression and
is not narrowly tailored. The flat prohibition of signs on
the water burdens more speech than is reasonably necessary to
serve any substantial interest of the City.” (Doc. # 1 at ¶
40). “A facial challenge, as distinguished from an as-applied
challenge,

seeks

to

invalidate

a

statute

or

regulation

itself.” Lamar Advert. Co. v. City of Douglasville, 254 F.
Supp. 2d 1321, 1326 (N.D. Ga. 2003) (citing Horton v. City of
St.

Augustine,

272

F.3d

1318,

1329

(11th

Cir.

2001)).

Plaintiffs seek a declaration that Section 73-34(10) “is
facially

unconstitutional

under

the

First

and

Fourteenth

Amendments to the U.S. Constitution,” as well as temporary
and permanent injunctions enjoining the City from enforcing
the ordinance, and fees and costs. (Doc. # 1 at ¶ 40).
In their Motion, Plaintiffs argue that they are entitled
26

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to judgment in their favor on Count I because other portions
of the Sign Code allegedly regulate content, and so the Sign
Code cannot survive strict scrutiny. (Doc. # 55 at 11-17).
The

City

counters

that

Section

73-34(10)

is

subject

to

intermediate scrutiny because it is content-neutral. (Doc. #
61 at 11).
a. Unbridled Discretion
Regardless of the parties’ discussion of the level of
scrutiny

that

should

be

applied,

Section

73-34(10)

is

unconstitutional because it places “unbridled discretion in
the hands of a government official.” Lamar, 254 F. Supp. 2d
at

1327.

Although

discretion”

Plaintiffs

argument

in

the

do not
part

of

make an
their

“unbridledMotion

that

addresses their facial challenge – which relies solely on
their theory of strict scrutiny – they do offer this argument
in their complaint: “Section 73-34(10), in particular, is
facially

unconstitutional

as

it

contains

insufficient

standards for local officials to apply[.]” (Doc. # 1 at ¶
40). Plaintiffs also make this argument in the portion of
their Motion that discusses their as-applied First Amendment
challenge, and so this issue has been adequately briefed.
(Doc. # 55 at 21; Doc. # 61 at 19).
“To comport with the First Amendment, permitting schemes
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affecting

protected

expression

cannot

place

‘unbridled

discretion’ in the hands of a government official.” Lamar,
254 F. Supp. 2d at 1327. “[A] law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide
the licensing authority, is unconstitutional.” Shuttleworth
v. City of Birmingham, 394 U.S. 147, 150-51 (1969). Thus,
“[a]n ordinance that gives public officials the power to
decide whether to permit expressive activity must contain
precise and objective criteria on which they must make their
decisions.” Lady J. Lingerie, Inc. v. City of Jacksonville,
176 F.3d 1358, 1361 (11th Cir. 1999). “Prior restraints bear
a heavy presumption against constitutionality.” Stardust,
3007 LLC v. City of Brookhaven, No. 1:14-CV-03534-ELR, 2016
WL 11544441, at *13 (N.D. Ga. Sept. 29, 2016).
Here, Section 73-34(10) is a permitting scheme, as it
disallows signs in certain waterways, unless allowed by the
City. (Doc. # 49-10). However, Section 73-34(10) provides no
criteria for the City to determine whether to grant such an
exemption. (Doc. # 49 at 22:12-15). Indeed, the City admits
that no such criteria exist. (Id.). This sort of unbridled
discretion is impermissible under the First Amendment. In
Barrett v. Walker County School District, 872 F.3d 1209 (11th
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Cir. 2017), the Eleventh Circuit succinctly laid out why this
is unconstitutional:
Perhaps the plainest example of an unconstitutional
grant of unbridled discretion is a law that gives
a government official power to grant permits but
that provides no standards by which the official’s
decision must be guided. In these circumstances,
the official can grant or deny a permit for any
reason she wishes. Such a grant of unconstrained
power is unconstitutional under the First Amendment
for two reasons: first, it creates an incentive for
speakers to self-censor in hopes of being granted
a permit, and second, it is difficult for courts to
determine whether an official’s standardless permit
decision was impermissibly based on content or
viewpoint.
Id. at 1221 (citations omitted).
Despite the fact that the City admits in its response to
this Motion that it “does not have any written criteria for
how [a request for an exemption to Section 73-34(10)] is to
be evaluated by the City Commission,” it argues it still
passes constitutional muster because there are sufficient
criteria for a variance from any sign prohibition in Section
73-32(e) of the Sign Code. 3 (Doc. # 55 at ¶ 20; Doc. # 61 at
3. The Court is unsure how to construe on the one hand the
City’s admission that it considers no criteria in determining
whether to grant an exemption to Section 73-34(10), and on
the other hand, its argument that it contains sufficient
criteria for a variance in other portions of the Code. Perhaps
the latter argument addresses the constitutionality of the
Code as a whole, given that Plaintiffs do not challenge
Section 73-34(10) alone. (Doc. # 49-10). The Court will still
consider those other provisions for the sake of this Motion.
29

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 30 of 44 PageID 917

¶ 20, Doc. # 61 at 19). Section 73-32(e) states:
Variances from the terms of these regulations may
not be contrary to the public interest. Variances
may be granted where, owing to special conditions,
the literal enforcement of the provisions would
result in unnecessary hardship, not to include
economic hardship. However, no variance shall be
granted unless the criteria of section 70-221 are
met. In addition to these usual criteria for
variances to the provisions of this article, any
additional signage allowed pursuant to variances
shall be conditioned in such a way that, taking
into consideration existing allowable signage in
the area, the additional signage does not
exacerbate visual clutter, driver distraction or
traffic safety in the area.
(Doc. # 49-10 at 6). Section 70-221, which is contained in
the Code’s chapter on planning and zoning, states that “[t]he
planning and zoning board or the city commission, as provided
for by this Code, may authorize a variance from the provisions
of the land development regulations that are not contrary to
the public interest.” (Doc. # 60-1 at 2). It then states that
a variance can be granted if “[t]he board or commission has
considered the following criteria and find that they have
been substantially satisfied and a hardship exists:”
a. The variance is in fact a variance as set forth
within the land development regulations and within
the province of the board or commission based upon
the opinion of the city manager or his designee;
b. Special conditions exist which are peculiar to
the building, structure, or land for which the
variance is sought and do not apply generally to
buildings, structures, or lands in the same zoning
30

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district;
c. Strict application of the provisions of the land
development regulations would not permit the
applicant reasonable use of the building[,]
structure, or land;
d. The peculiar conditions and circumstances
existing are not the result of the actions of the
applicant, the applicant agent’s agents, or the
applicant’s predecessors in title;
e. The variance proposed to be granted is the
minimum variance that will make possible the
reasonable use of the building, structure, or land;
f. Owing to special
conditions, a
literal
enforcement would result in unnecessary hardship.
Special conditions to be considered pursuant to
this section of the land development regulations
shall include, but not be limited to, the following
circumstances:
1. Redevelopment. If the proposed project
involves the redevelopment or utilization of
an existing developed or partially developed
site.
2. Substandard lot(s). If the proposed project
involves the utilization of an existing legal
nonconforming lot(s).
3. Neighborhood character. If the proposed
project promotes the established development
pattern of the block face, including setbacks,
building
height,
and
other
dimensional
requirements.
4. Public facilities. If the proposed project
involves the development of public parks,
public facilities or public utilities.
5.
Architectural
and/or
engineering
considerations. If the proposed project
utilizes architectural and/or engineering
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features that would render the project more
disaster resistant.
g. The granting of the variance will be in harmony
with the general purpose and intent of this
chapter;
h. The granting of the variance will not be
injurious
to
the
neighborhood
or
otherwise
detrimental to the public welfare.
(Doc. # 60-1 at 3) (emphases omitted).
To start, Section 73-32(e) provides an unconstitutional
level of discretion to the City, as whether something is in
the public interest, or would create undue hardship, does not
constitute sufficient criteria. (Doc. # 49-10 at 6); see City
of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770
(1988) (“It is apparent that the face of the ordinance itself
contains

no

explicit

limits

on

the

mayor’s

discretion.

Indeed, nothing in the law as written requires the mayor to
do more than make the statement ‘it is not in the public
interest’ when denying a permit application.”); Epona, LLC v.
Cnty. of Ventura, 876 F.3d 1214, 1222 (9th Cir. 2017) (“In
Moreno Valley, we struck down an ordinance under which, prior
to granting a permit, officials were required to find that a
structure or sign would not ‘have a harmful effect upon the
health or welfare of the general public’ or be ‘detrimental
to the welfare of the general public . . . [or] to the

32

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aesthetic quality of the community or the surrounding land
uses.’” (quoting Desert Outdoor Advert., Inc. v. City of
Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996))).
Regarding Section 70-221, most of its language seems
inapplicable to ordinances involving the regulation of signs.
(Doc. # 60-1). This is unsurprising considering that the City
admits it considers no criteria in deciding whether to grant
an exemption to Section 73-34(10). (Doc. # 49 at 22:12-15;
Doc. # 61 at ¶ 20). Section 70-221 offers no specific verbiage
to allow the Court to determine how the City decides to grant
an exemption to the Sign Code. Section 70-221 states that the
City

may

grant

a

variance

after

considering

the

City’s

“opinion,” certain “special” or “peculiar” conditions and
circumstances, “hardship,” “harmony with [the Code’s] general
purpose,” along with whether the variance would be “injurious
to the neighborhood” or “detrimental to public welfare.”
(Doc. # 60-1 at 3. Again, this is insufficient. See Int’l
Outdoor, Inc. v. City of Troy, 361 F. Supp. 3d 713, 717 (E.D.
Mich. 2019) (“The court agrees that the variance provision
does not contain ‘narrow, objective, and definite standards’
to guide the Building Code Board of Appeals. The ordinance
contains no guidance or limit on the Board’s ability to
determine whether a variance is ‘not contrary to the public
33

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interest or general purpose and intent of this Chapter’;
whether

it

vicinity;

or

sufficient
‘unusual

would

‘adversely

whether

‘hardship

the
or

characteristics’

subjective

standards

affect’

petitioner

practical
of

the

provide

properties
has

the

demonstrated

difficulty’
property.

latitude

in

for

based

.
the

.

.

a

upon
These

Board

to

potentially reject signs based upon content, under the guise
of acting in the ‘public interest.’” (citations omitted)).
Thus, “[n]othing in the law prevents the City from encouraging
some views and discouraging others through the arbitrary
grant or denial of . . . sign permits.” Lamar, 254 F. Supp.
2d at 1328-29.
Lastly, the Court notes that none of the sections offered
by the City provide any sort of time limit for the City to
make its decision with regard to granting or denying an
application for an exemption to the Sign Code. See Nittany
Outdoor Advert., LLC v. Coll. Twp., 22 F. Supp. 3d 392, 411
(M.D. Pa. 2014) (“One ‘species of unbridled discretion’ that
renders a prior restraint unconstitutional is a lack of time
limits on processing applications: ‘[A] prior restraint that
fails

to

place

decisionmaker

limits

must

issue

on

the

the

time

license

within
is

which

the

impermissible.’”

(quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223,
34

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226 (1990))); see also Lamar Co. v. City of Marietta, 538 F.
Supp. 2d 1366, 1374 (N.D. Ga. 2008) (“[T]he lack of time
limits

allow

the

City

to

require

one

party

to

wait

indefinitely for a permit while another may erect a sign
without applying for a permit. This scheme is irreconcilable
with the First Amendment.”).
Therefore,

Section

73-34(10)

of

the

Sign

Code

is

invalidated as an unconstitutional prior restraint on speech.
See CAMP, 451 F.3d at 1279 (“The lack of objective criteria
in the governmental exemption readily lends itself to harsh
and

discriminatory

enforcement

by

local

prosecuting

officials, against particular groups deemed to merit their
displeasure,

and

results

in

a

continuous

and

pervasive

restraint on all freedom of discussion that might reasonably
be regarded as within its purview.” (citation omitted)); see
also Miami For Peace, Inc. v. Miami-Dade Cnty., No. 07-21088CIV,

2008

WL

3163383,

at

*8

(S.D.

Fla.

June

4,

2008)

(invalidating an ordinance that prohibited parades “except in
accordance with a permit issued by the sheriff,” with no other
specific criteria).
b. Severability
Because the Court has found that a provision of the Sign
Code is unconstitutional, it must determine whether that
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provision is severable from the entire ordinance. See Vigue
v. Shoar, No. 3:19-cv-186-J-32JBT, 2020 WL 6020484, at *18
(M.D. Fla. Oct. 12, 2020) (“Having found portions of both
statutes to be unconstitutional, the Court now turns to the
question of whether those portions are severable from the
rest of the statute.”). “Severability is a question of state
law.” Id. (citing Wollschlaeger v. Governor, 848 F.3d 1293,
1317 (11th Cir 2017)). “Florida law . . . allows severability
absent a severability clause.” Foreman v. City of Port St.
Lucie, 294 F. App’x 554, 557 (11th Cir. 2008).
Here, Section 73-34(10) is not the crux of the entire
Sign Code. Indeed, the Sign Code regulates a number of signs,
wholly unrelated to waterways. (Doc. # 49-10). Severing this
particular section would not affect any other section of the
Code.

And,

the

City’s

Code

of

Ordinance

includes

a

severability clause. City of Treasure Island, Fla., Code of
Ordinances § 1-13 (1997). Therefore, the Court finds that
Section

73-34(10)

may

appropriately

be

severed

from

the

remainder of the Sign Code. See Lamar, 254 F. Supp. 2d at
1340 (finding a provision of a sign ordinance unenforceable
and concluding it “must be severed from the remainder of the
sign ordinance”); see also Coral Springs St. Sys., Inc. v.
City of Sunrise, 371 F.3d 1320, 1348 (11th Cir. 2004) (“We
36

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are fully satisfied that the purpose of the Amended Sign Code
is

not

defeated

by

the

removal

of

the

purportedly

unconstitutional provisions[,] . . . which make up but a small
part of the whole.”).
c. Injunction
In

their

permanent

complaint,

injunctive

Plaintiffs

relief

seek

prohibiting

“temporary

[the

City]

and
from

enforcing the Sign Code.” (Doc. # 1 at ¶ 40). “For a permanent
injunction to be issued, [Plaintiffs] must: (1) show actual
success on the merits of claims asserted in the complaint;
(2) establish that irreparable harm will result from failure
to provide injunctive relief; (3) establish that the balance
of equities tips in [their] favor; and (4) demonstrate that
an injunction is in the public interest.” Vigue, 2020 WL
6020484, at *19 (citing KH Outdoor v. City of Trussville, 458
F.3d 1261, 1268 (11th Cir. 2006)).
Here, Plaintiffs have succeeded in their claim insofar
as Section 73-34(10) is unconstitutional. And, “[t]he loss of
First Amendment freedoms, for even minimal periods of time,
unquestionably

constitutes

irreparable

injury.”

Elrod

v.

Burns, 427 U.S. 347, 373 (1976); see also Univ. Books &
Videos, Inc. v. Metro. Dade Cnty., 33 F. Supp. 2d 1364, 1373
(S.D.

Fla.

1999)

(“Because
37

chilled

speech

cannot

be

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 38 of 44 PageID 925

compensated by monetary damages, an ongoing violation of the
First Amendment constitutes irreparable injury.”). Plaintiffs
have suffered and will continue to suffer denial of their
First Amendment right to speech in the form of displaying
signs in Treasure Island’s waterways.
Further, these injuries to Plaintiffs outweigh any harm
an injunction might cause to the City, which remains free to
enforce the remaining provisions of the Sign Code. See Vigue,
2020 WL 6020484, at *19 (“Injury to Mr. Vigue also outweighs
any

harm

the

injunction might

cause

Sheriff Shoar.

Even

without [the unconstitutional statutes], Sheriff Shoar is
still free to enforce all other state and local laws to
maintain safe roadways[.]”); see also Baumann v. City of
Cumming, No. 2:07-CV-0095-WCO, 2007 WL 9710767, at *7 (N.D.
Ga. Nov. 2, 2007) (“[T]he temporary infringement of First
Amendment

rights

constitutes

a

serious

and

substantial

injury, and the [City] has no legitimate interest in enforcing
an unconstitutional ordinance.”). And, the Court finds that
such

an

injunction

would serve

the

public interest.

See

SisterSong Women of Color Reprod. Just. Collective v. Kemp,
472 F. Supp. 3d 1297, 1328 (N.D. Ga. 2020) (“[A]n injunction
here would protect the public interest by protecting those
rights to which it too is entitled.” (citations omitted)).
38

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 39 of 44 PageID 926

Having
injunction,
Accordingly,

satisfied
the
the

Court
City

all

criteria

finds
is

such

hereby

for

a

relief
enjoined

permanent

proper.
from

Id.

future

enforcement of Section 73-34(10) of the Sign Code. The Court
will enter a final permanent injunction order at the close of
the case.
3. As-Applied First Amendment Challenge
In Count II, Plaintiffs allege that the City’s conduct
in issuing Duvernay a citation under Section 73-34(10) of the
Sign Code “for displaying a message in the [Parade] whilst
ignoring all other participants’ messages on display in the
[Parade] . . . abridged the rights of Plaintiffs to speak on
matters of public concern, imposed unlawful penalties for
Plaintiffs’

speech,

and

created

a

chilling

effect

on

Plaintiffs’ efforts to honor and celebrate military veterans
in the city limits.” (Doc. # 40 at ¶ 44-45).
In their Motion, Plaintiffs argue that they are entitled
to judgment in their favor on Count II because:
The City did not cite another vessel, either in
2019 or anytime in the prior 22 annual boat parades,
for violating its ordinance. When asked, the City
admitted to no prior enforcement against vessels by
the City. For reasons well documented by the City
Commission itself, the City singled Duvernay out
for enforcement not once, but three times, also
depriving him of the equal protection of the laws.

39

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 40 of 44 PageID 927

(Doc. # 55 at 23). Plaintiffs seek a judgment declaring this
conduct unconstitutional and request that the Court “schedule
a trial on damages.” (Id.). The City responds that “[t]he
denial

of

requested

Mr.

Duvernay’s

sign.

The

request

denial

was

was

not

based

based

on

his

in

part

on

the

credibility of his word that any sign he would have in the
City

of

Treasure

Island’s

jurisdiction

would

be

noncommercial” and that “Mr. Duvernay was lawfully cited when
he failed to pursue a variance and was found in violation of
the City’s sign code.” (Doc. # 61 at 18-19).
“[T]he constitutional inquiry in an as-applied challenge
is

limited

to

the

plaintiff’s

particular

situation.”

Rubenstein, 72 F. Supp. 3d at 1309 (citation omitted). Based
on the pleadings and the instant Motion, Plaintiffs appear to
base their allegations on the Equal Protection Clause. Given
that

the

Court

has

already

found

Section

73-34(10)

unconstitutional, it will address this theory alone.4
Plaintiffs

allege

that

the

City

violated

Duvernay’s

equal protection rights by singling him out for enforcement
of Section 73-34(10). (Doc. # 1 at ¶¶ 44, 46; Doc. # 55 at
4. The pleadings are not wholly clear as to the differences
between Plaintiffs’ facial and as-applied challenges, but to
the extent that the Court fails to address their claims,
Plaintiffs have the opportunity to prove them at trial.
40

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 41 of 44 PageID 928

23). The Equal Protection Clause of the Fourteenth Amendment
“requires

the

individuals

government

alike.”

Roma,

to
599

treat
F.

similarly

Supp.

2d

at

situated
1342.

“A

plaintiff asserting an Equal Protection claim must show that
he is either a member of a protected class or that the
defendant

intended

to

treat

him

differently

from

others

similarly situated without a rational basis for the disparate
treatment.” Id. at 1342-43 (citing Vill. of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curiam)). With regard to
the latter claim, which is known as a “class of one” claim,
the plaintiff “must demonstrate an extremely high level of
similarity between the plaintiff and the allegedly similarly
situated comparators.” Id. at 1343. Indeed, with regard to
denied permit applications, both the plaintiff’s and the
other granted applications must “be prima facie identical in
all relevant respects.” Campbell v. Rainbow City, 434 F.3d
1306, 1314 (11th Cir. 2006) (emphasis omitted).
Here, Plaintiffs do not argue, let alone allege that
Duvernay is a member of a protected class. Therefore, the
Court turns to Plaintiffs’ class of one claim. Given that the
parties offer no proof of any other individual that has been
granted an exemption to the Sign Code, this claim fails as to
the denial of an exemption to Section 73-34(10). See Jucha v.
41

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 42 of 44 PageID 929

City of N. Chicago, 63 F. Supp. 3d 820, 830-31 (N.D. Ill.
2014)

(dismissing

the

plaintiff’s

equal

protection

claim

because he had “not plausibly alleged that he is similarly
situated to his comparator”); (Doc. # 49 at ¶ 58:14-18).
Indeed, Plaintiffs provide no other identical application to
compare to Duvernay’s application and the City’s subsequent
denial of that application, as required by Eleventh Circuit
authority. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1204 (11th Cir. 2007) (“[A] ‘showing that two projects were
similarly situated requires some specificity, and . . . ‘must
be prima facie identical in all relevant aspects.’” (quoting
Campbell, 434 F.3d at 1314) (emphasis omitted)).
Similarly, with the citation, there remains a genuine
issue of material fact as to whether Plaintiffs were similarly
situated to other Parade attendees, such that others’ signs
would not already have been exempted from the Sign Code. Any
boat

carrying

flags,

for

example,

might

be

exempt

from

enforcement of the Code. (Doc. # 49-10 at 8). Therefore, the
Court cannot conclude at this juncture that there was a high
degree

of

similarity

between

Duvernay

and

the

other

individuals displaying signs. Furthermore, to the extent that
the City’s basis for issuing Duvernay any of the citations
was because it had not granted Plaintiffs a variance or
42

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 43 of 44 PageID 930

exemption,

and

this

misunderstanding
constitute

a

of

was
the

rational

based
Sign

basis

on

a

Code,

misapplication

this

for the

may

very

or
well

City’s treatment

of

Duvernay. (Doc. # 61 at 19); see Roma, 599 F. Supp. 2d at
1343 (“The mistaken application of a law may constitute a
rational basis.”).
Therefore, Plaintiffs have failed to carry their burden
of proving no genuine issue of material fact that needs to be
determined at trial as to Count II, and the Motion is denied
as to this requested relief.
IV.

Conclusion
The parties’ Motions are granted in part and denied in

part.

The

Plaintiffs

City’s

Motion

challenge

the

is

granted
entire

to

Sign

the

extent

Code.

that

However,

Plaintiffs have standing to challenge Section 73-34(10) of
the Sign Code. Plaintiffs’ Motion is granted as to Count I,
and the City is enjoined from enforcing Section 73-34(10) of
the Sign Code. The Motion is denied as to Count II, as there
remain genuine issues of material fact that need to be decided
at trial. The Motion is denied as to Count III because the
Court cannot conclude as a matter of law that Section 7334(10) is expressly preempted by Florida state law.
Accordingly, it is
43

Case 8:19-cv-03113-VMC-TGW Document 63 Filed 01/06/21 Page 44 of 44 PageID 931

ORDERED, ADJUDGED, and DECREED:
(1)

Defendant City of Treasure Island, Florida’s Motion for
Summary Judgment (Doc. # 45) is GRANTED in part and
DENIED in part as set forth herein.

(2)

Plaintiffs’ Amended Motion for Summary Judgment (Doc. #
55) is GRANTED as to Count I and DENIED as to Counts II
and III.

(4)

Section

73-34(10)

of

the

City’s

Sign

Code

is

an

unconstitutional prior restraint on speech and the City
is hereby enjoined from enforcing it. The Court will
enter a final permanent injunction order at the close of
the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of January, 2020.

44