International Outdoor, Inc. v. Troy, City of
ORDER granting in part and denying in part 6 defendant's Motion to Dismiss. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
INTERNATIONAL OUTDOOR, INC.,
Case No. 17-10335
HON. GEORGE CARAM STEEH
CITY OF TROY,
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS (DOC. 6)
Plaintiff International Outdoor, Inc. alleges that defendant City of
Troy’s Sign Ordinance, (Doc. 1-2), violates the First Amendment. Count I
alleges that the Ordinance constitutes an unconstitutional prior restraint.
Count II alleges that the Ordinance contains content based restrictions
imposed without a compelling government interest, and therefore, is
unconstitutional. The matter is presently before the Court on defendant’s
motion to dismiss. (Doc. 6). Oral argument was held on June 26, 2017.
For the reasons stated below, defendant’s motion is granted in part and
denied in part.
Plaintiff, an outdoor advertising company, erects billboards
throughout Southeast Michigan. (Doc. 1 at PageID 3-4). The billboards
display “truthful commercial messages” and non-commercial messages
including political speech. (Doc. 1 at PageID 4). Plaintiff “earns revenue
by charging advertisers to display” these messages. (Id.).
Defendant, a Michigan municipal corporation, regulates billboards
and other signs through the Sign Ordinance in Chapter 85 of defendant’s
Code of Ordinances. (Doc. 1 at PageID 2, 4). Section 85.01.04(A)
requires a permit for each sign, unless it meets one of several enumerated
exceptions. (Doc. 1-2 at PageID 18). Billboards are considered “ground
signs,” which are defined as “[a] freestanding sign supported by one or
more uprights, braces, or pylons located in or upon the ground and not
attached to any building.” (Doc. 1-2 at PageID 17). Ground signs are
subject to specific zoning district regulations outlined in section
85.02.05(C). (Doc. 1-2 at PageID 26-28). These regulations set limits on a
sign’s size, height, and location. (Id.). Pursuant to section 85.01.08(B)(1),
defendant’s Building Code Board of Appeals may grant a variance to signs
that do not comply with the requirements of the Ordinance. (Doc. 1-2 at
Plaintiff sought to erect two digital billboards in a M-1 district. (Doc. 1
at PageID 5, 7). Plaintiff applied for a variance because the billboards did
not meet the zoning district regulations of section 85.02.05(C)(5). (Doc. 1
The Building Code Board of Directors held a public hearing
that spanned two meeting dates, and thereafter denied the variance. (Doc.
1 at PageID 8).
II. Legal Standard
A. Federal Rule of Civil Procedure 12(b)(1)
Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),
arguing that plaintiff lacks standing. Defendant moves under the wrong
rule. The Court, therefore, shall consider the argument under Fed. R. Civ.
P. 12(b)(1). The Court is “bound to consider the 12(b)(1) motion first, since
the Rule 12(b)(6) challenge becomes moot if this court lacks subject matter
jurisdiction.” Moir v. Greater Cleveland Regional Transit Authority, 895
F.2d 266, 269 (6th Cir. 1990). It is the plaintiffs’ burden to demonstrate that
the court has subject matter jurisdiction. RMI Titanium Co v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).
Motions to dismiss for lack of subject matter jurisdiction fall into two
general categories: facial attacks and factual attacks.” United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir.1994). “A facial attack is a challenge to
the sufficiency of the pleading itself. On such a motion, the court must take
the material allegations of the petition as true and construed in the light
most favorable to the non-moving party.” Id. (emphasis in original). “A
factual attack, on the other hand, is not a challenge to the sufficiency of the
pleading's allegations, but a challenge to the factual existence of subject
matter jurisdiction. On such a motion, no presumptive truthfulness applies
to the factual allegations” and “the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Id.
(emphasis in original). Defendant’s challenge to plaintiff’s standing is a
factual attack. Thus, no presumptive truthfulness applies to the factual
allegations in the complaint. Id.
B. Federal Rule of Civil Procedure 12(b)(6)
When a party attacks a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court must decide whether the complaint states a
claim upon which relief may be granted. Generally speaking, the court
must construe the complaint in favor of the plaintiff, accept the allegations
of the complaint as true, and determine whether the plaintiff's factual
allegations present plausible claims. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 554-56 (2007). Even though a complaint need not contain
“detailed” factual allegations, its “factual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all
of the allegations in the complaint are true.” Ass'n of Cleveland Fire
Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).
The “constitutional minimum of standing contains three elements;” (1)
an “injury in fact,” (2) “a causal connection between the injury and the
conduct complained of,” and (3) “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
quotations and citations omitted).
Defendant construes the complaint to challenge only the provisions
relating to permit requirement exceptions. Defendant asserts that plaintiff
failed to satisfy redressability because, even if the exception provisions
were struck down, the permit provision and specific zoning district
requirements would bar plaintiff’s billboards. Defendant’s argument mirrors
Midwest Media Property L.L.C. v. Symmes Tp., Ohio, 503 F.3d 456 (6th
Cir. 2007). But Midwest Media differs from this case, because the plaintiff
there challenged specific provisions of the township’s sign regulations.
Here, however, plaintiff challenges the entire Ordinance. Plaintiff’s focus
on the exception provisions merely relates to their argument that the
Ordinance is content based. Plaintiff’s injury would be redressed if the
Ordinance was struck down, and therefore, defendant’s argument fails.
B. Count II: Content Based Restriction
1. Applicable Standard
The parties disagree on which standard governs Count II. Plaintiff
argues that the Ordinance is a content-based restriction, and therefore,
under Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015), strict scrutiny
applies. Defendant argues that plaintiff’s claims relate to commercial
speech, and therefore, the applicable standard is that set forth in Central
Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557
(1980). Neither case, however, provides a perfect parallel nor cleanly
dictates which standard applies here. The Court, therefore, conducts an
analysis of both lines of cases and, for the reasons stated below, finds that
Central Hudson applies.
a. Content-Based Restriction
“[A] government, including a municipal government vested with state
authority, ‘has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.’” Reed 135 S. Ct. at 2226 (quoting
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). Content based
laws are those that “target speech based on its communicative content”
including “the topic discussed or the idea or message expressed.” Id. at
2226-27 (internal citations omitted). Courts must “consider whether a
regulation of speech ‘on its face’ draws distinctions based on the message
a speaker conveys.” Id. at 2227 (internal citations omitted). Examples of
facial distinctions include “defining regulated speech by particular subject
matter” or “its function or purpose.” Id. Laws that are facially content
neutral, but “cannot be ‘justified without reference to the content of the
regulated speech’ or that were adopted by the government ‘because of
disagreement with the message [the speech] conveys’,” are also
considered content-based regulations. Id. (citing Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). Content-based laws “are presumptively
unconstitutional and may be justified only if the government proves that
they are narrowly tailored to serve compelling state interests.” Id. at 2226
(citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster, Inc.
v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)).
In Reed, a city code prohibited the display of outdoor signs without a
permit, but excepted 23 categories of signs, 135 S.Ct. at 2224, including;
(1) temporary directional signs, defined “on the basis of whether a sign
conveys the message of directing the public to church or some other
qualifying event;” (2) political signs, defined “on the basis of whether a
sign’s message is designed to influence the outcome of an election;” and
(3) ideological signs, defined “on the basis of whether a sign
communicat[es] a message or ideas that do not fit within the Code’s other
categories. Id. at 2227. The Supreme Court found that the city code “is
content based on its face” because “[t]he restrictions in the [ ] Code that
apply to any given sign [ ] depend entirely on the communicative content of
the sign.” Id.
Plaintiff states that, pursuant to the Ordinance, ground signs require a
permit or variance, but there are numerous exceptions to this requirement.
Plaintiff specifically addresses exceptions for temporary signs, flags,
special event signs, and civic event signs.
Temporary signs are excepted under section 85.01.04(A)(5). The
Ordinance does not specifically define temporary signs. It does, however,
note that temporary signs “include, but are not limited to;”
1. For a single dwelling or building or vacant
land: an on-site real estate sign, advertising
the premise for sale, rent or lease.
2. For a single dwelling or building or vacant
land: an off-site real estate sign for the
purpose of providing direction to another
premise that is offered for sale, rent, or lease.
3. An on-site sign advertising an on-going
garage, estate or yard sale.
4. An off-site sign for the purpose of providing
direction to another premise that is having a
garage, estate or yard sale, as long as the
dates of the sale are clearly indicated on the
5. Non-commercial signs, which contain noncommercial informational or directional
6. Political signs.
7. Holiday or other seasonal signs.
8. Construction signs for buildings under
Flags are excepted under section 85.01.04(A)(6). But the Ordinance
does not except all flags. Section 85.03.05 dictates that
(A) The display of the flag of the United States of
America or other political subdivision thereof shall
not be regulated by this Chapter when attached to
a structure or standardized flagpole.
(B) The display of not more than one flag, such as
but not limited to, corporate, civic, social, cultural,
church or club group shall be permitted if flown in
conjunction with an American flag of equal or greater
Special Event signs are excepted under section 85.03.01(A), which
states that “[s]igns advertising a Special Event may be allowed for events
that include, but are not limited to, grand openings, vehicle
shows/displays, craft shows, benefit rummage/bake sales and festivals,
as long as a Special Event Sign permit is issued.” “Banners advertising
civic events” are excepted under section 85.01.05(A)(2).
Plaintiff asserts that, as in Reed, the Ordinance is content-based
because a sign’s content must be evaluated in order to determine what
Defendant argues that the Ordinance is not content-based because it
distinguishes between ground signs and temporary signs based on display
duration as opposed to message content. Defendant asserts that ground
signs are permanent, while temporary signs are posted for a short period of
time. To further this argument, defendant relies on the Ordinance’s failure
to define temporary signs. Without an explicit definition, defendant asserts
that the Court should adopt the ordinary meaning of the word “temporary”
and define temporary signs as those permitted for a limited time period.
Defendant further points to section 85.03.02(B)(3), which imposes a 60 day
time limit on temporary signs.
Defendant’s argument fails. The Ordinance does not distinguish
temporary signs on the basis of their display duration alone. The
Ordinance lists eight examples of temporary signs in section 85.03.02(A),
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enumerated on the basis of their message content, before stating the time
restriction in section 85.03.02(B)(3). Further, defendant ignores the
exceptions for flags, special events, and civic events. Even if temporary
signs were excepted solely on the basis of their display duration, these
three other categories of signs are excepted on the basis of their
communicative content. The language of the Ordinance “requires one to
assess the sign’s content to determine if it is exempt.” Thomas v. Schroer,
__ F. Supp. 3d __ (2017), No. 13-cv-02987-JPM-cgc, 2017 WL 1208672, at
*8 (W.D. Tenn. Mar. 31, 2017). One cannot determine that a sign meets
one of these exceptions without assessing the content of the sign to
confirm that it is a flag or advertises a special or civic event. Thus, the
Ordinance is “content based on its face.” Reed, 135 S.Ct. at 2227.
b. Commercial Speech
“[T]he degree of protection afforded by the First Amendment depends
on whether the activity sought to be regulated constitutes commercial or
non-commercial speech.” Bolger v. Youngs Drug Prod. Corp., 463 US 60,
65 (1983). Commercial speech can be subject to greater government
regulation than non-commercial speech. City of Cincinnati v. Discovery
Network Inc., 507 US 410, 426 (1993). See also Metromedia, Inc. v. City of
San Diego, 453 U.S. 490, 513 (1981); Central Hudson Gas & Electric Corp.
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v. Public Service Comm'n, 447 U.S. 557 (1980). Commercial speech
“encompasses ‘expression related solely to the economic interests of the
speaker and its audience’ and ‘speech proposing a commercial
transaction.’” Marras v. City of Livonia, 575 F. Supp. 2d 807, 817 (E.D.
Mich. 2008) (quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 493
(1995)). “Non-commercial speech, on the other hand, involves ideological,
political, religious, artistic, or scientific speech.” Thomas, 2017 WL
1208672, at *6 (citing National Endowment for the Arts v. Finley, 524 U.S.
569, 602-03 (1998).
Defendant argues that plaintiff’s billboards are commercial speech
because they display commercial messages and plaintiff receives money
for displaying these messages. Plaintiff, however, pleads that its billboards
will offer both commercial and non-commercial, specifically political,
Determining whether plaintiff’s speech is commercial or noncommercial is crucial because it impacts which standard must be applied to
analyze Count II. Unfortunately, neither party makes a complete argument
to address this issue.
Plaintiff assumes that, because it pleaded both commercial and noncommercial content-based speech, strict scrutiny applies pursuant to Reed.
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The speech at issue in Reed was not explicitly labeled as commercial or
non-commercial. See Thomas, 2017 WL 1208672, at *7. In subsequent
decisions, however, courts recognized the speech as non-commercial, and
limited Reed’s applicability to non-commercial speech. Thomas, 2017 WL
1208672, at *7; n. 3. See also CTIA-The Wireless Ass’n v. City of
Berkeley, 139 F.Supp.3d 1048, 1061 (N.D. Cal. 2015) (“The Supreme
Court has clearly made a distinction between commercial speech and
noncommercial speech, . . . and nothing in its recent opinions, including
Reed, even comes close to suggesting that that well-established distinction
is no longer valid.”). Commercial speech, therefore, continues to be
analyzed under Central Hudson, even if it is content-based. See id.
Plaintiff fails to consider this limitation, and does not make any assertions
on what the Court should do regarding its commercial speech.1
Defendant, on the other hand, does not acknowledge the allegation
regarding non-commercial speech. Instead, defendant assumes that
Plaintiff repeatedly classifies its speech as non-commercial. The closest it comes to acknowledging that
the Court should apply strict scrutiny to a combination of commercial and non-commercial speech is a
citation to Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005), in a footnote within
their response brief. In Solantic, the plaintiff owned a digital message board that displayed both
commercial and non-commercial speech. Id. at 1252. The court found that the city’s restriction was
content based and applied strict scrutiny without addressing the commercial nature of the speech. Id. at
1267. Any attempt to read Solantic to apply strict scrutiny to all content-based speech is undermined by
subsequent cases, including Reed and its progeny, which specifically limits the application of strict
scrutiny to non-commercial content-based speech.
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plaintiff’s speech is entirely commercial, and therefore, even if it is contentbased speech, it is subject to intermediate scrutiny pursuant to Central
Hudson. Defendant does not provide any argument or precedent to explain
why the pleaded combination of commercial and non-commercial speech
should be considered as commercial speech alone.
The Court, therefore, must determine what standard applies to
content-based speech that is both commercial and non-commercial. When
speech contains “both commercial elements and political or social
commentary, the line between commercial and noncommercial speech can
be difficult to discern.” Adventure Commc'ns, Inc. v. Kentucky Registry of
Election Fin., 191 F.3d 429, 441 (4th Cir. 1999). “When these elements are
intertwined, the commercial or noncommercial character of the speech is
determined by ‘the nature of the speech taken as a whole.’” Id. (citing Riley
v. National Fed'n of the Blind of North Carolina, Inc., 487 U.S. 781, 796
(1988)). “Consideration of the full context of the speech is therefore
critical.” Id. (citing Bolger, 463 U.S. at 67–68). “Thus, if a communication,
at bottom, proposes a commercial transaction, the fact that it contains
some commentary about issues of public interest will not alter its nature.”
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Plaintiff’s application for a variance, (Doc. 1-3), indicates that the
billboards will display ads, but also proposes dedicating one of every 32 ad
slots to defendant for pro bono messaging. (Doc. 1-3 at PageID 38). The
subject matter of plaintiff’s commissioned ads is not clear, but, given that
plaintiff is compensated for providing space on the billboard, the ads clearly
relate to plaintiff’s economic interests. These paid ads constitute the vast
majority of the billboards’ speech. The nature of plaintiff’s billboards as a
whole, therefore, indicates that the speech at issue here is properly
classified as commercial speech. As such, Central Hudson, not Reed,
provides the applicable standard of review.
2. Hudson Analysis
“‘[T]he proper approach to be taken in determining the validity of [a]
restriction on commercial speech,’ as articulated in Central Hudson
considers (1) whether the commercial speech ‘concerns lawful activity and
is not misleading. A restriction on otherwise protected commercial speech
is valid only if it (2) seeks to implement a substantial governmental interest,
(3) directly advances that interest, and (4) reaches no further than
necessary to accomplish the given objective.’” Metromedia, 453 U.S. at
507 (citing Central Hudson, 447 U.S. at 563-66).
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Neither party addresses the first factor. The Court finds that it is
satisfied based on the above analysis classifying plaintiff’s billboards as
commercial speech as well as the allegation that such speech is “truthful.”
(Doc. 1 at PageID 4).
Defendant compares this case to Metromedia to support its assertion
that the Ordinance is a valid restriction under the remaining three factors.
The Ordinance was created to further traffic safety and aesthetic
appearance. (Doc. 1-2 at PageID 16). Metromedia recognizes these as
“substantial government goals.” 453 U.S. at 508. The court further found
that the ordinance at issue advanced these interests, ruling that “billboards
are real and substantial hazards to traffic safety,” id. at 509, and “by their
very nature, wherever located and however constructed, can be perceived
as an ‘esthetic harm.’” Id. at 510. The same applies here, where
defendant asserts that the permit requirement and limitations on size,
height, and number of signs further these interests. Finally, defendant
asserts that the Ordinance reaches no further than necessary because, as
in Metromedia, it “has not prohibited all billboards.” Id. at 508. It “allows
onsite advertising and some other specifically exempted signs,” and
includes a variance provision. Id. The Court agrees with defendant’s
comparison to Metromedia and finds that the Ordinance is a valid
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restriction on commercial speech. The Court, therefore, grants defendant’s
motion to dismiss as it relates to Count II.
C. Count I: Prior Restraint
“A prior restraint is any law ‘forbidding certain communications when
issued in advance of the time that such communications are to occur.’”
McGlone v. Bell, 681 F.3d 718, 733 (6th Cir. 2012) (quoting Alexander v.
United States, 509 U.S. 544, 550 (1993). “Any system of prior restraints of
expression [bears] a heavy presumption against its constitutional validity,
and a party who seeks to have such a restraint upheld thus carries a heavy
burden of showing justification for the imposition of such a restraint.” Cnty.
Sec. Agency v. Ohio Dep't of Commerce, 296 F.3d at 477, 485 (6th
Cir.2002) (quoting New York Times Co. v. United States, 403 U.S. 713, 714
(1971)). The Supreme Court has recognized “two evils that will not be
tolerated.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990).
“First, a scheme that places ‘unbridled discretion in the hands of a
government official or agency.’” Id. (quoting City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 757 (1988)). Laws “‘subjecting the exercise
of First Amendment freedoms to the prior restraint of a license’ must
contain ‘narrow, objective, and definite standards to guide the licensing
authority.’” Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 131
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(1992) (quoting Shuttlesworth v. City of Birmingham Ala., 394 U.S. 147,
150–151 (1969)). “The reasoning is simple: If the permit scheme involves
appraisal of facts, the exercise of judgment, and the formation of an opinion
by the licensing authority, the danger of censorship and of abridgment of
our precious First Amendment freedoms is too great to be permitted.” Id.
(internal quotations and citations omitted). “Second, a prior restraint that
fails to place limits on the time within which the decisionmaker must issue
the license is impermissible.” FW/PBS, Inc., 493 U.S. at 226 (internal
The Ordinance imposes a prior restraint because the right to display
a sign depends on approval in either the form of a permit from the Troy
Zoning Administrator, or a variance from the Troy Building Code Board of
Appeals. Plaintiff makes two arguments regarding the validity of this prior
restraint. First, it asserts that the Ordinance grants unbridled discretion.
Defendant argues that there is no such unbridled discretion because the
variance procedure is guided by three factors provided in section
85.01.08(B)(1), which states:
The Board of Appeals has the power to grant
specific variances from the requirements of this
Chapter, upon a showing of each of the following:
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a. The variance would not be contrary to the public
interest or general purpose and intent of this
b. The variance does not adversely affect
properties in the immediate vicinity of the proposed
c. The petitioner has a hardship or practical difficulty
resulting from the unusual characteristics of the
property that precludes reasonable use of the
Plaintiff responds that the Ordinance gives unbridled discretion, even with
these factors, because they are vague and meaningless and do not meet
the “narrow, objective, and definitive” criteria required. Forsyth, 505 U.S. at
131. Defendant does not articulate why section 85.01.08(B)(1) is narrow,
objective, and definitive. It does not define arguably objective concepts like
public safety or adverse effects. It does it state how the Board of Appeals
determines whether these factors are met. Finally, it does not state that a
variance shall be issued upon a showing of all three factors. The
Ordinance merely states that the Board “has the power” to grant a variance
upon such a showing, suggesting that, even if the factors are met, the
Board may decline a variance.
Second, plaintiff asserts that the Ordinance section on variances is
invalid because it does not impose time limits. Defendant argues that if an
ordinance is content neutral, Freedman’s time limit requirements are not
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applicable. Truckor 283 Mich. App. 154, 169-70 (2009) (citing Solantic,
410 F.3d at 1270; Covenant Media of South Carolina, LLC v. North
Charleston, 493 F.3d 421, 431 (4th Cir. 2007)). But, as described above,
the Ordinance is not content neutral. As such, defendant’s argument fails.
Defendant’s motion to dismiss, therefore, is denied as it pertains to
"Severability of a local ordinance is a question of state law. . . ." City
of Lakewood, 486 U.S. at 772. "The doctrine of severability holds that
statutes should be interpreted to sustain their constitutionality when it is
possible to do so.” Pletz v. Secretary of State, 125 Mich. App. 335, 375
(1983). “Whenever a reviewing court may sustain an enactment by proper
construction, it will uphold the parts which are separable from the
repugnant provisions.” Id. “ To be capable of separate enforcement, the
valid portion of the statute must be independent of the invalid sections,
forming a complete act within itself." Id. Courts must “refrain from
invalidating more of [a] statute than is necessary,” Regan v. Time, Inc.,
468 U.S. 641, 652 (1984), and “must retain those portions of the Act that
are (1) constitutionally valid, (2) capable of functioning independently, and
(3) consistent with Congress’ basic objectives in enacting the statute.”
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United States v. Booker, 543 U.S. 220, 258-59 (2005) (internal citations
and quotations omitted).
Defendant sees the complaint as a challenge to the Ordinance’s
exception provisions, as opposed to a challenge to the entire Ordinance.
As such, if these provisions are found invalid, defendant asks the Court to
sever them, and dismiss plaintiff’s case because the general height and
size restrictions will stand alone to block plaintiff’s billboards. Plaintiff
responds that the valid portions of the Ordinance are not independent of
the invalid sections and cannot form a complete act. Plaintiff concludes,
therefore, that the invalid sections cannot be severed.
As described above, defendant’s motion to dismiss shall be granted
in regards to Count II. As such, the question of severability no longer
pertains to the exception provisions, but instead, solely to the variance
provision challenged in Count I. This provision cannot be severed
because “[i]t is not clear that the legislature would have enacted the
[Ordinance], complete with its permit requirement and restrictions on form,”
without the variance procedure. Solantic, 410 F.3d at 1269. “The
legislature might have preferred not to impose these regulations on any
signs if doing so meant that all signs would be subjected to” the permit
requirement without a variance procedure. Id. It is not clear that the
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Ordinance’s permit requirement and variance procedure are “so
inseparable in substance that it can be said that the legislature would have
passed the one without the other.” Id. As such, defendant’s motion to
dismiss is denied in regards to Count I.
For the reason’s stated above, defendant’s motion to dismiss is
GRANTED IN PART AND DENIED IN PART. Count II is dismissed. Count
IT IS SO ORDERED.
Dated: June 30, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 30, 2017, by electronic and/or ordinary mail.
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