Lamar Outdoor Advertising v. The City of Weston

Filing 51

ORDER DENYING DEFENDANT CITY OF WESTONS 41 MOTION TO DISMISSAND RENEWED MOTION FOR SUMMARY JUDGMENT. This Court grants leave for defendant to renew its Motion for Summary Judgment. Signed by District Judge John Preston Bailey on 6/18/18. (njz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

LAMAR OUTDOOR ADVERTISING,
a West Virginia Corporation, and
LAMAR TEXAS LIMITED PARTNERSHIP,
a Texas Limited Partnership,
Plaintiffs,
Civil Action No. 2:17-CV-82
(BAILEY)

v.
THE CITY OF WESTON,
Defendant.

ORDER DENYING DEFENDANT CITY OF WESTON’S MOTION TO DISMISS
AND RENEWED MOTION FOR SUMMARY JUDGMENT
I.

Introduction
Pending before this Court is Defendant City of Weston’s Motion to Dismiss and

Renewed Motion for Summary Judgment [Doc. 41], filed on May 11, 2018. Specifically, the
defendant moves pursuant to Rule 12(b)(1) for an order dismissing the new allegations set
forth in the plaintiff’s Second Amended Complaint for lack of subject matter jurisdiction.
The Motion has been fully briefed and is ripe for decision. For the reasons that follow, this
Court denies defendant’s Motion [Doc. 41].
II.

Factual and Procedural History
In August 2016, plaintiff approached the Lewis County Board of Education (“BOE”)

about constructing a billboard on the corner of Court Avenue and Third Street. By August
17, 2016, plaintiff and the BOE had agreed to enter into a 10-year lease agreement [Doc.
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37 at ¶ 4]. On the same date, the City of Weston (“Weston”), sent a letter to the BOE
requesting the BOE “reconsider [its] recent decision to allow the placement of a billboard”
at the agreed-upon location [Id. at ¶ 5]. Plaintiff and the BOE formally executed the Sign
Location Agreement on October 10 and October 17, respectively [Doc. 37 at 7-8].
Plaintiff’s building permit was presented to defendant and subsequently denied on January
18, 2017 [Doc. 37 at ¶ 8].
On December 5, 2016, the defendant enacted an ordinance for its municipality
regulating the location of billboards within its city limits [Doc. 37 at ¶ 7]. Section 1 provides
the ordinance’s purpose and findings [Doc. 37 Section 1(a)]. It states, among other things,
“[t]hat outdoor advertising is a legitimate, commercial use of private property adjacent to
roads and highways” and “[t]hat outdoor advertising is “an integral part of the business and
marketing function of an establishment segment of the national economy which serves to
promote and protect private investments in commerce and industry.” [Id. at Section 1(b)].
Section 2 contains definitions of “sign”, “display”, and “device.” Section 41 provides twelve
general restrictions to outdoor advertising. Provisions include, among others, a restriction
on attempting or purporting to direct traffic (Section 4.4); size, height, and location
restrictions (Sections 4.8-4.11); and restrictions on content regarding direct and indirect
references to “obscene, abusive, or offensive language, act, or depiction deemed not
appropriate for display within the City of Weston” and a limitation on the number of
advertisements of certain subjects such as alcohol, gambling, tobacco, or nudity (Section
4.12). Section 5 provides exceptions to the restrictions outlined in Section 4. These

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The Ordinance does not appear to contain a Section 3.
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exceptions include “directional or other official sign and notices required or otherwise
authorized by law…”, on-premises signs for sale/lease, advertising for activities conducted
on-premises, and “signs, displays, and devices giving specific information in the interest
of the traveling public, which may be erected and maintained pursuant to authorization of
the Mayor, within the rights-of-way of roadways and highways.” [Id. at Section 5(a)-(d)].
Section 6 outlines the territory over which the ordinance governs and Section 7 outlines the
penalties for violations of the ordinance [Id.].
Plaintiff filed its Complaint2 in this Court on June 23, 2017 [Doc. 1]. Therein, plaintiff
asserted three claims: Count I – Unconstitutional Restriction on Freedom of Speech; Count
II – Taking of Private Property for Government Use; and Count III – Tortious Contractual
Interference.
In its Second Amended Complaint [Doc. 37], filed April 27, 2018, plaintiffs challenge
the constitutionality of the City of Weston’s Outdoor Advertising Ordinance in its entirety,
both facially and as applied to it and third parties.
Plaintiff alleges:
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That Section 4.12 is a content based restriction because it “overly
restricts advertising of certain products (alcohol, tobacco) and
activities (gambling, activities referring to nudity or of a ‘lewd,
indecent, lascivious or obscure nature)’”;

2.

“Section 5 of the Ordinance exempts certain categories of speech
from all general prohibitions in Section 4 based upon the content of

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On September 18, 2017, plaintiff amended its Complaint pursuant to F.R.Civ.P. 15(a)(2)
to include its parent corporation, Lamar Texas Limited Partnership [Doc. 16].
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the message”;
3.

Section 5 contains “an impermissible prior restraint on the exercise of
the First Amendment by exempting from the entire regulatory scheme
certain ‘signs, displays and devices giving specific information in the
interests of the traveling public which may be erected and maintained
pursuant to the authorization of the Mayor, within the rights of way of
roadways and highways’”;

4.

“That a plain reading of the ordinance demonstrates that it is overly
broad and impermissibly favors some commercial and noncommercial speech based upon the content of the message;” and

5.

“That the ordinance is not narrowly tailored enough to pass
constitutional muster because the exemptions found in Section 5
functionally invalidate the general restrictions based on the content of
the message.”

III.

Rule 12(b)(1) Motion to Dismiss Standard
“The standing doctrine is an indispensable expression of the Constitution's limitation

on Article III courts' power to adjudicate ‘cases and controversies.’ Allen v. Wright, 468
U.S. 737, 750-51 (1984). The burden of establishing standing to sue lies squarely on the
party claiming subject-matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992).” Frank Krasner Enterprises, Ltd. v. Montgomery Cty., 401 F.3d 230, 234
(4th Cir. 2005).
“To establish ‘a case or controversy’ within the meaning of Article III, plaintiff must

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show the following as an ‘irreducible minimum’: Injury in fact: An ‘injury in fact’ which is
concrete and not conjectural; Causation: A causal connection between the injury and
defendant's conduct or omissions; and Redressability: A likelihood that the injury will be
redressed by a favorable decision. Lujan v. Defenders of Wildlife (1992) 504 US 555,
560–561; Sprint Communications Co., L.P. v. APCC Services, Inc. (2008) 554 US 269,
274.” Schwarzer, Tashima & Wagstaffe, Fed. Civil Procedure Before Trial [2:4106] (2011).
“[T]he injury-in-fact element requires that the plaintiff ‘suffer an invasion of a legally
protected interest which is concrete and particularized, as well as actual or imminent.’
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th
Cir. 2000) (en banc) (citing Defenders of Wildlife, 504 U.S. at 560). The alleged injury
must not be ‘conjectural or hypothetical.’ [Friends of the Earth, Inc. v.] Laidlaw [Envtl.
Servs. (TOC), Inc.], 528 U.S. at 180; Defenders of Wildlife, 504 U.S. at 560 (internal
quotations omitted). The traceability requirement ensures that it is likely the plaintiff's injury
was caused by the challenged conduct of the defendant, and not by the independent
actions of third parties not before the court. Gaston Copper, 204 F.3d at 154 (citing
Defenders of Wildlife, 504 U.S. at 560). And the redressability prong requires that it be
likely, and not merely speculative, that a favorable decision from the court will remedy the
plaintiff's injury. Id. (citing Defenders of Wildlife, 504 U.S. at 561).” Friends for Ferrell
Parkway, LLC v. Stasko, 282 F.3d 315 (4th Cir. 2002).
Standing generally requires a showing that plaintiff has suffered actual loss, damage
or injury, or is threatened with impairment of his or her own interests. This tends to assure
that plaintiff has a sufficient stake in the outcome of the suit to make it a real “case or

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controversy.” Gladstone Realtors v. Village of Bellwood, 441 US 91, 100 (1979).
The purpose of the standing requirement is clear. “Federal courts are not comprised
of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating
about abstractions in the law or merely giving advice about the potential legal deficiencies
of a law or policy when no ongoing controversy exists with respect to that law or policy.”
Incumaa v. Ozmint, 507 F.3d 281, 289 (4th Cir. 2007). Federal courts must decide live
controversies and must avoid giving advisory opinions on abstract propositions of law. Id.
at 287.
The Supreme Court has provided guidance in this area:
Our analysis must begin with the recognition that, where threatened
action by government is concerned, we do not require a plaintiff to expose
himself to liability before bringing suit to challenge the basis for the
threat—for example, the constitutionality of a law threatened to be enforced.
The plaintiff's own action (or inaction) in failing to violate the law eliminates
the imminent threat of prosecution, but nonetheless does not eliminate Article
III jurisdiction. For example, in Terrace v. Thompson, 263 U.S. 197 (1923),
the State threatened the plaintiff with forfeiture of his farm, fines, and
penalties if he entered into a lease with an alien in violation of the State's
anti-alien land law. Given this genuine threat of enforcement, we did not
require, as a prerequisite to testing the validity of the law in a suit for
injunction, that the plaintiff bet the farm, so to speak, by taking the violative
action. Id., at 216. See also, e.g., Village of Euclid v. Ambler Realty Co.,

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272 U.S. 365 (1926); Ex parte Young, 209 U.S. 123 (1908). Likewise, in
Steffel v. Thompson, 415 U.S. 452 (1974), we did not require the plaintiff
to proceed to distribute handbills and risk actual prosecution before he could
seek a declaratory judgment regarding the constitutionality of a state statute
prohibiting such distribution. Id., at 458-460. As then-Justice Rehnquist put
it in his concurrence, “the declaratory judgment procedure is an alternative
to pursuit of the arguably illegal activity.” Id., at 480. In each of these cases,
the plaintiff had eliminated the imminent threat of harm by simply not doing
what he claimed the right to do (enter into a lease, or distribute handbills at
the shopping center).

That did not preclude subject-matter jurisdiction

because the threat-eliminating behavior was effectively coerced. See
Terrace, supra, at 215-216; Steffel, supra, at 459. The dilemma posed by
that coercion-putting the challenger to the choice between abandoning his
rights or risking prosecution-is “a dilemma that it was the very purpose of the
Declaratory Judgment Act to ameliorate.” Abbott Laboratories v. Gardner,
387 U.S. 136 (1967).
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129 (2007).
IV.

Discussion
Defendant Weston asserts that plaintiff’s injury in fact in this case arose from the

denial of its application for a building permit to erect a billboard on school property pursuant
to Section 4.10 of the City of Weston’s Outdoor Advertising Ordinance [Doc. 41].
Accordingly, defendant asserts plaintiff lacks standing to challenge the constitutionality of

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any provision of the Ordinance other than Section 4.10 because plaintiff cannot establish
the requisite injury in fact to confer standing. (Id.). Weston asserts plaintiff’s overbreadth
challenge is an exception to the usual prudential standing requirement “that a party may
assert only a violation of its own rights,” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
392-93 (1988), which does not apply in this case because the overbreadth doctrine only
creates an exception to the prudential standing inquiry. Specifically, “there is broad ‘latitude
given facial challenges in the First Amendment context,’ a plaintiff must establish that he
has standing to challenge each provision of an ordinance by showing that he was injured
by application of those provisions.” Id. at 429-30 (quoting Gonzales v. Carhart, 550 U.S.
124 (2007). Accordingly, standing to challenge one provision “does not provide it a
passport to explore the constitutionality of every provision of a sign regulation.” Id. at 429.

Plaintiff asserts that it has standing to raise a facial challenge to the Ordinance on
behalf of the noncommercial interests of third parties. Specifically, plaintiff argues its
overbreadth challenge permits it to facially challenge the Ordinance in order to raise the
protected First Amendment rights of others not currently before the Court under the theory
that the Ordinance’s existence may cause such third parties to refrain from otherwise
constitutionally protected speech or expression. See Broaderick v. Oklahoma, 413 U.S.
601, 612 (1973). In Lamar Advertising v. City of Douglasville, Georgia, the Supreme
Court recognized that parties “with a commercial interest in speech may facially challenge
an ordinance, raising the noncommercial speech interests of third parties.” 254 F.Supp.2d
1321 (N.D. Ga. 2003)(citing Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 504

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n.11 (1981).
This Court need look no further than the Fourth Circuit’s opinion in Brown v. Town
of Cary, 706 F.3d 294 (4th Cir. 2013). In that case, the Town contended the plaintiff lacked
standing to challenge exemptions of its sign ordinance, and that only challenges to the
provisions regulating the size and pigment of residential signs could be brought since only
those restrictions caused him actual injury. In affirming the district court’s rejection of this
argument, the Court stated
As the district court correctly noted, [plaitniff’s] complaint alleges an
infringement of his First Amendment rights stemming from the [ordinance’s]
allegedly content based exemptions. Inasmuch as the relevant content
distinction derives from the Town’s conscious choice to exempt certain signs
from regulation, [plaintiff’s] legal injury derives from the exemptions no less
than from the substantive restrictions themselves, and he may therefore
subject those exemptions to constitutional scrutiny. See Ark. Writers’
Project, Inc. v. Ragland, 481 U.S. 221, 227, 107 S.Ct. 1722
(1987)(explaining that standing to challenge exemptions exists where “others
similarly situated were exempt from the operation of a state law adversely
affecting the claimant.”); City of Ladue v. Gilleo, 512 U.S. 43, 50-51, 114
S.Ct. 2038 (1994). That is, after all, the essence of the content neutrality
inquiry – analyzing what speech the Town has chosen to regulate and what
speech it has chosen to exempt. Accordingly, we reject the Town’s standing
challenge and proceed to the merits of the [case].

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706 F.3d 294, 300.
Upon review of the above, this Court finds the plaintiff has established its burden
showing this Court’s subject-matter jurisdiction. This Court will have a chance to review
the merits at such time the defendant renews its Motion for Summary Judgment.
Conclusion
Therefore, for the reasons stated above, Defendant City of Weston’s Motion to
Dismiss and Renewed Motion for Summary Judgment [Doc. 41] is DENIED. This Court
grants leave for defendant to renew its Motion for Summary Judgment.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: June 18, 2018.

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