BILL SALTER ADVERTISING INC v. SANTA ROSA COUNTY FLORIDA et al

Filing 45

ORDER entered re 28 & 29 Motions to Dismiss: Defendants' Motions to Dismiss are granted for Counts Two and Six. Defendants' Motions to Dismiss are denied as to the remaining counts. Signed by JUDGE RICHARD SMOAK on 10/25/2011. (jem)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
BILL SALTER ADVERTISING, INC.,
Plaintiff,
v.

CASE NO. 3:11-cv-297-RS-EMT

SANTA ROSA COUNTY, FLORIDA;
SANTA ROSA COUNTY BOARD OF
COMMISSIONERS; and
SOUTHEAST-SD, LLC,
Defendants.
_________________________________________/
ORDER
Before me are Defendants‟ motions to dismiss (Docs. 28 & 29) and
Plaintiff‟s response to the motions (Doc. 37).
I. Standard of Review
In order to overcome a motion to dismiss, a plaintiff must allege enough
facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching

1

Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000)(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
II. Background
Plaintiff, Bill Salter Advertising, Inc. (“Salter”), is a Florida corporation in
the business of erecting and operating advertising signs. At issue here are permits
under Santa Rosa County, Florida, Code of Ordinances § 8.07.00—Permanent offpremises signs. Section 8.07.01(C)(1) states that along Highway 90 “[n]o offpremises sign shall be placed within two thousand (2,000) feet of any other offpremises sign on the same side of the street right-of-way [or] within a three
hundred (300) food radius of another off-premises sign.”
On March 2, 2009, Mark Locklin obtained zoning approval from Defendant,
Santa Rosa County (“County”), to erect an off-premise sign at the northeast corner
of Highway 90 and Woodbine Road. When the permit was awarded, Plaintiff had
a State of Florida outdoor advertising permit located within 2,000 feet of Locklin‟s
sign permit, which violates § 8.07.01(C)(1).
The Locklin permit expired on March 2, 2010, and Locklin was notified by
the County of its expiration. On March 4, 2010, Defendant Southeast informed the
County‟s zoning officials that it had taken the location over from Locklin and

2

asked the permit to be extended two months. County granted the extension until
May 3, 2010.
On May 3, 2010, when the permit was set to expire, Plaintiff submitted an
application to erect an off-premises sign on a parcel adjacent to Southeast‟s
location. Also on May 3rd, Ellis Crane Works, Inc. (“Ellis”), the licensed
contractor of Southeast, applied for a building permit at the site. On May 13, 2010,
the County informed Plaintiff that its application was being denied because it was
“spaced out” by Southeast‟s permit. Southeast obtained a building permit via Ellis,
which was extended by the County to expire on May 20, 2011. Due to
nonpayment, Ellis cancelled the Southeast building permit, which became official
on February 21, 2011.
On March 2, 2011, Plaintiff submitted another application to erect an offpremises sign on the parcel adjacent to the Southeast site. Recognizing that the
Southeast project was over, the County approved Plaintiff‟s application to erect the
proposed sign on March 4, 2011.
Southeast, not yet ready to give up on the project, contacted County staffers
and the County Attorney requesting that the County reverse its decision. On
March 25, 2011, three weeks after approving Plaintiff‟s application, the County
reversed itself and determined that Ellis‟ cancellation of the Southeast building

3

permit was invalid. The County also revoked Plaintiff‟s permit stating once again
that it was “spaced out” because of Southeast‟s project.
Plaintiff timely appealed the revocation to the County Board of Adjustments,
which affirmed the County‟s decision, and the Board of Commissioners, which
reversed the County‟s decision. However, the Board of Commissioners did not
revoke Southeast‟s permit, so although Plaintiff received permission for a permit,
he could not build the sign because of the state‟s spacing requirement. In addition,
when Plaintiff asked the County to comply with the Board‟s decision, the County
refused to issue Plaintiff‟s permit until he removed another off-premise sign east of
the proposed location, which was never a condition mentioned by the Board.
Plaintiff has filed an eight-count complaint for declaratory judgments;
violations of substantive due process, procedural due process, and the equal
protection clause of the Fourteenth Amendment; violations of the First
Amendment; and a state-law claim of inverse condemnation. Defendants Santa
Rosa County and Santa Rosa County Board of Commissioners filed a motion to
dismiss (Doc. 28) all counts, and Defendant Southeast-SD, LLC filed a motion to
dismiss (Doc. 29) Counts One, Two, Three, Six, and Seven.

4

III. Analysis
Count One
Count One of the First Amended Complaint (Doc. 20) seeks appellate
review of the Board‟s May 26, 2011, decision to grant Southeast‟s zoning and
building permits. This Court has supplemental jurisdiction over this state law
claim pursuant to 28 U.S.C. § 1367, which states that “in any civil action of which
the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or
controversy . . . .” Counts two, three, four, five, and six are all claims within this
Court‟s original jurisdiction and are part of the same case or controversy; therefore,
supplemental jurisdiction is proper. See generally Flava Works, Inc. v. City of
Miami, Fla., 609 F.3d 1233, 1237-38 (11th Cir. 2010).
Defendants assert that supplemental jurisdiction is improper because under
Florida law, a petition for writ of certiorari must be filed within thirty days of the
order to be reviewed. Fla. R. App. P. 9.030(c)(2) & 9.100(c)(2). When a district
court exercises supplemental jurisdiction over a state claim, state law applies.
Flava Works, Inc., 609 F.3d at 1327. In Florida, the timing of an appeal is
jurisdictional. Medley Hardwoods, Inc. v. Rojas, 4 So.3d 1270 (Fla. 1st Dist. Ct.
App. 2010).

5

Defendants argue that the petition for writ of certiorari was not pled in the
original Complaint, and because the First Amended Complaint was filed more than
thirty days after the Board‟s decision, it is untimely and supplement jurisdiction no
longer applies. Defendants‟ argument hinges on whether the petition for writ of
certiorari was properly pled in Plaintiff‟s original complaint. In the original
complaint, Plaintiff states that he was seeking a “Declaratory Judgment—The
Board‟s Decision to Allow Southeast to Move Forward with Its Signs Is
Erroneous” and that “[t]he Board‟s decision is subject to de novo review by this
Court.” (Doc. 1, p. 8). The original complaint was filed on June 23, 2011, which
is within thirty days of the Board‟s decision on May 26, 2011. Plaintiff filed a
First Amended Complaint on August 23, 2011, again seeking a declaratory
judgment and stating that “[t]he Board‟s decision is subject to appellate review by
this Court.” (Doc. 20, p. 10). The First Amended Complaint, however, was not
filed within thirty days of the Board‟s decision.
Although both Complaints state that Plaintiff is seeking a declaratory
judgment, it is clear from the descriptions that Plaintiff is, in fact, seeking appellate
review of the Board‟s decision. The original Complaint asked for “de novo
review” of the Board‟s decision. Plaintiff‟s original Complaint was sufficient
enough to put Defendants on notice of the claim and the grounds upon which it
rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore,

6

Plaintiff timely filed its petition for appellate review, and the motions to dismiss as
to Count One are denied.
Count Two
Count Two alleges that Defendants violated Plaintiff‟s substantive due
process rights under the Fourteenth Amendment by issuing permits to Southeast in
violation of the County Code. The Due Process Clause of the Fourteenth
Amendment states “nor shall any State deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. The
Supreme Court concluded that this clause implicates two different kinds of
procedure rights: substantive due process and procedural due process.
The substantive component of the Due Process Clause protects those rights
that are “fundamental,” that is, rights that are “implicit in the concept of
ordered liberty.” The Supreme Court has deemed that most—but not all—of
the rights enumerated in the Bill of Rights are fundamental; certain
unenumerated rights . . . also merit protection.
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994).
McKinney goes on to state that “areas in which substantive rights are
created only by state law . . . are not subject to substantive due process protection
under the Due Process Clause because „substantive due process rights are created
only by the Constitution.‟ ” Id. In addition, “[a]ccording to McKinney, nonlegislative deprivations of state-created rights, which would include land-use
rights, cannot support a substantive due process claim, not even if the plaintiff

7

alleges that the government acted arbitrary and irrationally.” Greenbriar Village,
LLC, v. Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003).
Plaintiff attempts to fall under an exception to this rule: “When the statecreated right is deprived in a manner that implicates a fundamental right, for
example, when a state employee is fired in violation of the First Amendment for
expressing his views.” Id. at 1262 n.3 (citing Beckwith v. City of Daytona Beach
Shores, 58 F.3d 1554 (11th Cir. 1995)). In Plaintiff‟s First Amended Complaint, it
states that “denial of the Salter permit in clear violation of the applicable
regulations have effectively deprived Salter of its ability to speak.” (Doc. 20, p.
12). However, when taking all facts alleged in the complaint as true, Plaintiff‟s
case does not fall within the exception.
Nowhere in the First Amended Complaint does Plaintiff allege that he was
denied a permit because of the message Salter wished to display on the sign. In
fact, Plaintiff never states what the message was going to be. (Doc. 20, p. 9). If
the County had denied Plaintiff‟s permit application in order to prevent Salter from
exercising his First Amendment rights, then the exception would apply, but that is
simply not the case here. This is a land-use dispute, and property interests do not
arise from the Constitution. Therefore, substantive due process does not apply, and
Count Two is dismissed.

8

Count Three
In Count Three, Plaintiff alleges that it “has a protected property interest in
its lease and sign permit and has a right to sufficient notice and an opportunity to
be heard with respect to any governmental decision which will harm such
interests.” (Doc. 20, p. 13). The Eleventh Circuit requires proof of three elements
for a successful procedure due process claim: “(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3)
constitutionally-inadequate process.” Arrington v. Helms, 438 F.3d 1336, 1347
(11th Cir. 2006).
Specifically, Plaintiff alleges that because the County has disregarded orders
by the Board (its governing body) in the past, seeking an appeal would be futile.
(Doc. 20, p. 14). Plaintiff already appealed the County‟s denial of his permit
application, the Board ruled in Plaintiff‟s favor, and the County still would not
grant Plaintiff the permit. According to Plaintiff, “forcing Salter to go through the
administrative appeal process a second time would be a futile enterprise.” (Id.). If
state courts do not provide adequate remedies, then procedural due process is
violated. See Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1238-39 (11th Cir.
2003). Plaintiff sufficiently alleges that repeating the same process that has
already failed him would not provide an adequate remedy, so this count should not
be dismissed.

9

Counts Four and Five
Plaintiff brought a 42 U.S.C. § 1983 action against the County under the
Fourteenth Amendment‟s Equal Protection Clause in Counts Four and Five. To
prevail on a selective enforcement equal protection claim, “Plaintiffs must show
(1) that they were treated differently from other similarly situated individuals, and
(2) that Defendant unequally applied a facially neutral ordinance for the purpose of
discriminating against Plaintiffs.” Campbell v. Rainbow City, 434 F.3d 1306, 1314
(11th Cir. 2006). There must be no rational basis for the difference in treatment.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff alleges that it was treated differently than Southeast and Locklin.
Locklin was granted a permit for a sign that was “spaced out” by Santa Rosa
County, Florida, Code of Ordinances § 8.07.01(C)(1); however, when Plaintiff
applied for a permit that was also “spaced out,” its application was denied.
Additionally, the County issued Locklin a permit with the condition that it remove
an existing sign. In a similar situation, the County directed Plaintiff to remove an
existing sign before being issued the permit. Plaintiff states that “[t]here is
absolutely no rational basis for the foregoing difference in treatment. Indeed, the
regulations are clear, concise, and should have been strictly adhered to by County
staff.” (Doc. 20, p. 16). If Plaintiff‟s allegations are true, then Plaintiff sufficiently

10

meets the requirements to bring these claims. Defendant‟s motion to dismiss
counts four and five is denied.
Count Six
Plaintiff asserts a § 1983 claim under the First Amendment in Count Six.
Permit and licensing schemes are a form of prior restraint. “An 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; an ordinance that gives too much discretion to public officials is
invalid.” Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th
Cir. 1999).
Plaintiff makes several arguments. First, Plaintiff argues that “although the
Sign Ordinance requires a permit prior to erecting a sign, no provision compels a
County official to issue a permit if all requirements of the Ordinance are met.”
(Doc. 20, p. 18). Second, Plaintiff contends that “the Ordinance is permeated with
discretion for County officials.” (Id.). The use of the word “may” in Ordinance
§§ 8.09.01(G), 8.10.03(E), 8.10.04, and 8.10.05 is Plaintiff‟s basis for the
allegation that the officials have too much discretion.
As to Plaintiff‟s first argument, Sign Ordinance § 8.07.01 says, “Permanent
off-premises signs shall be permitted . . . and shall conform to the requirements
below.” In addition, to deny a land-use permit application, Florida law requires

11

that the “local government agency must show by competent substantial evidence
that the application does not meet the published criteria.” Broward Cnty v. G.B.V.
Int’l., Ltd., 787 So.2d 838, 842 (Fla. 2001). Therefore, unless an application fails
to meet the requirements in the ordinance, the application must be granted, and
Plaintiff‟s first argument fails.
Plaintiff‟s second argument rests on the belief that the use of the word
“may” the ordinances gives public officials too much discretion. Sign Ordinance §
8.09.01(G) states that it is unlawful to erect or maintain “[s]igns which are not in
good repair or which may create a hazardous condition or which are abandoned.”
Sign Ordinance § 8.10.03(E) states that the “Building Inspection Department may
require that plans submitted be prepared by a registered professional engineer of
Florida.” Sign Ordinance § 8.10.04 states that the “Building Inspection
Department may revoke any permit” if the application contained false or
misleading information or if the permittee has failed to keep the sign in “good
general condition and in a reasonable state of repair.” This section gives the
permittee thirty days to rectify any violations of the ordinance. Sign Ordinance §
8.10.05 states that the “Community Planning, Zoning, and Development Division
may grant an extension to the zoning approval upon demonstration by the applicant
of ongoing efforts to construct the approved sign.”

12

The Supreme Court has previously addressed permit and licensing schemes
as prior restraints and acceptable limitations: “A licensing standard which gives an
official authority to censor the content of a speech differs toto coelo from one
limited by its terms, or by nondiscriminatory practice, to considerations of public
safety and the like.” Niemotko v. Maryland, 340 U.S. 268, 282 (1951).
“Regulations …that ensure the safety and convenience of the people are not
„inconsistent with civil liberties but … [are] one of the means of safeguarding the
good order upon which [civil liberties] ultimately depend.” Cox v. New
Hampshire, 312 U.S. 569, 574 (1941). Certainly having requirements that
applications are true and correct and that signs placed on the side of a highway
remain in good repair and are designed by an engineer are limited to public safety
issues. See Thomas v. Chicago Park Dist., 534 U.S. 316, 322-24 (2002). These
ordinances do not give officials unfettered discretion to deny permit applications;
therefore, Count Six is dismissed.
Count Seven
Plaintiff brings a Florida state-law action for inverse condemnation in Count
Seven. “The term „inverse condemnation‟ refers to the process by which a
landowner recovers damages from a governmental taking of his property, even
though no formal takings or condemnation proceedings have been instituted.”
Watson Const. Co. v. City of Gainesville, 433 F. Supp. 2d. 1269, 1281 (N.D. Fla.

13

2006). In order to bring this claim, it must be ripe—meaning “the government
entity charged with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at issue.” Lost Tree
Village Corp. v. City of Vero Beach, 838 So.2d 561, 570 (Fla. 4th Dist. Ct. App.
2002) (quoting Williamson Cnty Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186 (1985)).
Defendants contend that because Plaintiff never sought appellate review of
the County‟s refusal to issue him the permit by the Board that this count is not ripe.
However, Plaintiff has pled that it would be futile to appeal the decision because
the County has refused to grant the permit after the Board, its governing body,
ruled in Plaintiff‟s favor on appeal of its first denial. “A limited exception to the
ripeness requirement might exist where, by virtue of past history, repeated
submissions would be futile. …[T]his can negate the requirement of pursuing
further administrative remedies and the governmental action is effectively treated
as a final decision.” Id. at 571 (quoting City of Riviera Beach v. Shillingburg, 659
So.2d 1174, 1181 (Fla. 4th Dist. Ct. App. 1995)).
Additionally, Plaintiff contends that even if it is granted the permit, an
inverse condemnation claim still exists because of the County‟s unlawful granting
of Southeast‟s permit, which “spaces out” Plaintiff‟s permit and extinguishes all

14

economically beneficial use of its property interest. (Doc. 20, p. 21). Therefore,
Defendants‟ motions to dismiss Count Seven is denied.
Count Eight
Count Eight seeks a declaratory judgment that Southeast‟s permit is null and
void. This Court has supplemental jurisdiction under 28 U.S.C. § 1367. The
motion to dismiss as to Count Eight is denied.
IV. Conclusion
It is ORDERED:
1. Defendants‟ Motions to Dismiss are granted for Counts Two and Six.
2. Defendants‟ Motions to Dismiss are denied as to the remaining counts.

ORDERED on October 25, 2011.

/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

15