[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
August 17, 2006
No. 05-11100 THOMAS K. KAHN
Non-Argument Calendar CLERK
D. C. Docket No. 01-01376-CV-WBH-1
GRANITE STATE OUTDOOR ADVERTISING, INC.,
COBB COUNTY, GA, a political subdivision of the State of
BILL BYRNE, an individual and
in his capacity as Chairman
of the County Commission,
ROB HOSACK, as an individual
and in his capacity as
Director of Community Development,
SHERLINE ADAMS, as an individual and
in her capacity as Code Enforcement
MARGIE VAZQUEZ, as an individual and
in her capacity as Code Enforcement
Appeal from the United States District Court for the Northern District of Georgia
(August 17, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
Granite State Outdoor Advertising, Inc., appeals the summary judgment
against its complaint that the Cobb County Sign Ordinance violates the free speech
guarantees of both the First Amendment of the United States Constitution and the
the Georgia Constitution. See Cobb County, Ga., Official Code of County of Cobb,
Art. VI §§ 134-311 to -375 [hereinafter Sign Ordinance]. Granite State applied for
permits to erect several off-premises outdoor advertising signs, which are categorically
banned under the Sign Ordinance. See id. §§ 134-311, -313(p)(17). Granite State
argues that the district court erred when it (1) concluded that the ban of off-
premises outdoor advertising signs does not violate the First Amendment; (2)
concluded that Granite State lacked standing to challenge several other provisions
of the Sign Ordinance that do not pertain to off-premises outdoor advertising signs;
and (3) failed to consider whether the Sign Ordinance violated the Georgia
Constitution. We affirm the summary judgment regarding the first two
[End Page 2]
conclusions, but we vacate and remand in part because the district court failed to
provide a rationale for its dismissal of the claims under state law.
The Sign Ordinance regulates the permitting, location, number, methods of
construction, size, height, and maintenance of signs within Cobb County. Sign
Ordinance §§ 134-311 to -375. Cobb County enacted the Sign Ordinance to
"protect the health, safety and welfare of residents, visitors and businesses in the
county" because signs could creat[e] traffic hazards" and "negatively impact the
general appearance of an area." Id. § 134-312. The Sign Ordinance states that it
"shall not regulate the specific content of signs. Any sign, display or device
allowed under this article may contain commercial or noncommercial copy, except
that such copy shall not contain" materials that are obscene or advertise illegal
activity. Id. § 134-313(q).
All signs in Cobb County "require a permit unless specifically exempted by"
the Sign Ordinance. Id. §§ 134-313(b), -371. To receive a sign permit, an
applicant must submit an application, id. § 134-373(c), and pay a permit fee "as
established by the board of commissioners from time to time," id. § 134-375. The
Sign Ordinance provides that "the county . . . shall examine and process the
application within a reasonable amount of time. Though a longer period of time
[End Page 3]
may be reasonable . . . , five business days shall be considered a reasonable amount
of time in most cases." Id. § 134-373(d). If the County denies the permit, "the
applicant shall be given written notice stating the reason for the denial within 15
days" and the applicant may appeal the decision. Id. § 134-373(e).
The County considers the type of sign the applicant proposes to construct to
determine whether to issue a permit. "On-premise signs," which are defined as a
"sign which identifies" something "sold, offered or conducted on the premises
where the sign is located," must comply with the restrictions in section 134-314.
Id. § 134-314. "Off-premises signs," which is a "sign with a noncommercial
message," id. § 134-311, also require a permit and must comply with section 134-
315. Id. § 134-315. "Temporary signs" are restricted based on location, size, and
length of time. Id. § 134-316. "Electronic signs may only be used to advertise
activities actually conducted on the property . . . or to present public service
information." Id. § 134-313(o). "Any activity or business which offers as its
primary business purpose tourism or public recreational activity" may apply for a
"directional sign" with the County Board of Commissioners. Id. § 134-317.
Some signs do not require a permit. E.g., id. § 134-373(b)(1)""(21).
"Noncommercial signs" that are "32 square feet or less" are allowed without a
permit. Id. § 134-372(b)(6). The County exempts signs "traditionally associated
[End Page 4]
with a holiday" as long as they contain a noncommercial message. Id. § 134-
372(b)(7). The County also exempts warning or regulatory signs, id. § 134-
372(b)(17), and political signs that comply with certain restrictions on location and
size, id. § 134-372(b)(21).
Some signs are completely banned by the Sign Ordinance. "Off-premise
outdoor advertising signs," defined as "off-premise sign[s] with a commercial
message," are prohibited. Id. §§ 134-311, -313(p)(17). No signs may "contain
nudity, sexual conduct, obscene or pornographic material or advertise an illegal
activity." Id. § 134-313(q); see id. §§ 134-313(p)(12), -313(p)(8).
Granite State buys or leases property to construct commercial and
noncommercial signs. By 2001, Granite State had signed leases with different
property owners to post twelve signs in Cobb County and submitted twelve
applications to Cobb County seeking permits. The County denied the applications
the same day because the Sign Ordinance prohibited billboards as "off-premises
outdoor advertising signs." See §§ 134-311, -317(p)(17).
On May 29, 2001, Granite State filed a complaint against Cobb County and
individual Cobb County officials that alleged the Sign Ordinance violated the First
Amendment of the United States Constitution and the free speech provisions of the
Georgia Constitution. Granite State requested an injunction against the
[End Page 5]
enforcement of the Sign Ordinance and damages. See 42 U.S.C. § 1983. On July
6, Cobb County moved to dismiss, and the district court converted the motion to
dismiss into a motion for summary judgment. Granite State cross-moved for
In support of its motion, Granite State submitted a certified copy of the Sign
Ordinance; an affidavit of Wayne Charles, the President of Granite State; and
several court decisions regarding sign ordinances. Charles testified that Granite
State had entered into leases with owners of real properties in Cobb County to
construct signs. His affidavit did not contain any information about the messages
on the proposed signs.
On March 26, 2002, the district court dismissed the claims against the
individual defendants and granted the motion for summary judgment in favor of
Granite State. The district court concluded that the Sign Ordinance granted
unbridled discretion to County officials because it "fail[ed] to impose reasonable
time limits on the decision maker." See Sign Ordinance § 134-373(d); see
Freedman v. Maryland, 380 U.S. 51
, 57, 85 S. Ct. 734
After the district court issued its opinion, but before it issued a final
judgment, we decided Granite State Outdoor Advertising, Inc. v. City of
Clearwater, 351 F.2d 1112
(11th Cir. 2003). Because of this decision, on October
[End Page 6]
15, 2004, the district court vacated the grant of summary judgment and granted
summary judgment in favor of Cobb County. The district court relied on Granite
Clearwater to conclude that Granite State had standing to challenge provisions of
the Sign Ordinance that caused personal harm to the Granite State. See Sign
Ordinance §§ 134-313(p)(17), 134-311. The district court concluded that sections
134-313(p)(17) and 134-311 were constitutional. The district court reasoned that
because the ordinance "allows for noncommercial signs anywhere a commercial
sign could be located," the ordinance did not favor commercial speech over
noncommercial speech. The district court also concluded that the restrictions on
commercial speech in the Sign Ordinance met the requirements in Central Hudson
Gas, 447 U.S. 557
, 100 S. Ct. 2343
, because Cobb County's asserted purposes of
aesthetics and traffic safety were "substantial government interests" that were "no
more extensive than necessary."
Granite State appealed the decision of the district court. After the parties
filed their initial briefs, we requested supplemental briefs that addressed the
intervening decisions issued by our Court in Tanner Advertising Group LLC v.
Fayette County, 451 F.3d 777
(11th Cir. 2006) (en banc), and CAMP Legal
Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257
(11th Cir. 2006).
[End Page 7]
II. STANDARD OF REVIEW
We review standing determinations de novo. Bochese v. Town of Ponce
Inlet, 405 F.3d 964
, 975 (11th Cir.), cert. denied,
, 126 S. Ct. 377
(2005). We review grants of summary judgment de novo. State Farm Fire & Cas.
Co. v. Steinberg, 393 F.3d 1226
, 1229 (11th Cir. 2004) (citing Iraola & CIA, S.A.
v. Kimberly-Clark Corp., 325 F.3d 1274
, 1283 (11th Cir. 2003)).
Granite State presents three arguments. First, Granite State argues that the
district court erroneously concluded that sections 134-311 and 134-313(p)(17),
which ban off-premises outdoor advertising signs, do not violate the First
Amendment. See Sign Ordinance §§ 134-311, -313(p)(17). Second, Granite State
contends that the district court erred when it concluded that Granite State lacked
standing to challenge several other provisions of the Sign Ordinance that do not
pertain to off-premises outdoor advertising signs. See Sign Ordinance §§ 134-
313(a), -313(o), -313(p)(8), -313(p)(12), -314, -315, -318(a), -371, -372(b)(6), -
372(b)(7), -372(b)(21), -372(b)(17). Third, Granite State contends that the district
court erred because it failed to consider whether any provision of the Sign
Ordinance violates the Georgia Constitution. We consider each argument in turn.
[End Page 8]
A. Sections 134-311 and 134-313(p)(17) of the Sign Ordinance Do
Not Violate the First Amendment.
Granite State contends that the district court erroneously concluded that
sections 134-311 and 134-313(p)(17), which jointly prohibit "off-premises outdoor
advertising signs," are constitutional. The district court ruled that the provisions
did not favor commercial over noncommercial speech and satisfied the standards
for restrictions on commercial speech in Central Hudson Gas, 447 U.S. 557
, 100 S.
Ct. 2343 (1980). We agree with the district court.
Sections 134-311 and 134-313(p)(17) do not favor commercial speech over
noncommercial speech. Section 134-313(p)(17) prohibits "off-premises outdoor
advertising signs," which are defined as signs "with a commercial message." Sign
Ordinance § 134-311, -313(p)(17). Because this prohibition does not apply to
signs that have a noncommercial message, the expression of commercial speech is
more restricted than noncommercial speech in the Sign Ordinance.
Granite State contends that the prohibition does not directly advance a
substantial government interest and is more extensive than necessary. Because the
prohibition on "off-premises outdoor advertising signs" extends only to
commercial speech, we review the challenge to these provisions under the four-part
test articulated by the Supreme Court in Central Hudson Gas:
[End Page 9]
At the outset, we must determine whether the expression is protected
by the First Amendment. For commercial speech to come within that
provision, it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted governmental interest
is substantial. If both inquiries yield positive answers, we must
determine whether the regulation directly advances the governmental
interest asserted, and whether it is not more extensive than is
necessary to serve that interest.
447 U.S. at 566, 100 S. Ct. at 2351.
Both provisions pass constitutional muster as prior restraints on commercial
speech. First, neither party disputes that the messages of Granite State constitute
protected speech. Second, the Sign Ordinance was enacted "to protect against
traffic hazards and to reduce the adverse impact on the county's aesthetic
qualities," see Sign Ordinance § 134-312(a), both of which are substantial
government interests, see Metromedia, Inc. v. City of San Diego, 453 U.S. 490
407""08, 101 S. Ct. 2882
, 2892 (1981). Third, the Supreme Court has stated that
"the prohibition of offsite advertising is directly related to the stated objectives of
traffic safety and esthetics." Id. at 511, 101 S. Ct. at 2894. Fourth, the Supreme
Court has also stated that a prohibition of off-site advertising goes "no further than
necessary" to fulfill the goals of traffic safety and aesthetics. Id. at 508, 101 S. Ct.
at 2893. The district court correctly concluded that sections 134-311 and 134-
313(p)(17) are constitutional restrictions on commercial speech.
[End Page 10]
B. Granite State Has Standing to Challenge Only Provisions That
Govern Its Activity of Erecting Off-Premises Outdoor Advertising
Granite State argues that the district court erroneously concluded that it
lacked standing to challenge several provisions of the Sign Ordinance. In its initial
brief, Granite State argues that the Sign Ordinance grants unbridled discretion to
County officials through the lack of procedural safeguards, see Sign Ordinance §
134-373, the prohibition on "nudity, sexual conduct, [o]r obscene" content, see
Sign Ordinance §§ 134-313(q), 134-313(p)(8), and the prohibition on the
advertisement of "illegal activity," see id. § 134-313(q), -313(p)(12). Granite State
also argues that the district court erroneously dismissed its challenges to provisions
of the Sign Ordinance that allegedly impose unconstitutional prior restraints. See
id. §§ 134-372(b)(1)""(21), -315, -316, -317, -318(a), -371. We consider each
argument in turn.
[End Page 1. Granite State Lacks Standing to Challenge Provisions That]
Allegedly Grant Unbridled Discretion.
Granite State lacks standing to challenge the provisions that it alleges grant
unbridled discretion to County officials. "The Supreme Court has "˜long held that
when a licensing statute allegedly vests unbridled discretion in a government
official over whether to permit or deny expressive activity, one who is subject to
the law may challenge it facially without the necessity of first applying for . . . a
[End Page 11]
license,'" but "[t]he challenged provisions "˜must have a close enough nexus to
expression . . . to pose a real and substantial threat of the identified censorship
risks.'" CAMP, 451 F.3d at 1274 (quoting City of Lakewood v. Plain Dealer
Pub'g Co., 486 U.S. 750
, 755""56, 758, 108 S. Ct. 2138
, 2143, 2145(1988)).
Granite State is not subject to the provisions that allegedly grant unbridled
Granite State is not subject to the procedural requirements of the Sign
Ordinance. See Sign Ordinance § 134-373. Granite State does not deny that its
sign applications were for "off-premises outdoor advertising signs," and the Sign
Ordinance completely bans "off-premises outdoor advertising signs." Id. § 134-
313(p)(17). Granite State offered no evidence that it is engaged in any form of
expression that is permitted under the Sign Ordinance. Granite State may not
challenge the lack of procedural safeguards in the permit requirements because it is
not subject to them. See CAMP, 444 F.3d at 1274.
Granite State likewise failed to establish that its signs are subject to the
prohibition on messages that are obscene or advertise illegal activity. See Sign
Ordinance §§ 134-313(p)(8), (12), -313(q). Granite State concedes that the signs it
seeks to construct are categorically banned without regard to whether the messages
are obscene or advertise illegal activity. See id. § 134-313(p)(17). Because
[End Page 12]
Granite State is not subject to these provisions, it lacks standing to challenge these
Granite State argues in its supplemental brief that the Sign Ordinance grants
unbridled discretion to allow signs based on content, see id. §§ 134-317, -
372(b)(1)""(21), but it has waived this argument because it failed to raise them in its
initial brief. "Under the established law of this Circuit, "˜issues that clearly are not
designated in the initial brief ordinarily are considered abandoned.'" Tanner, 451
F.3d at 787 (quoting Hartsfield v. Lemacks, 50 F.3d 950
, 953 (11th Cir. 1995)). In
its initial brief, Granite state argued that these exemptions were content-based prior
restraints of speech, not grants of unbridled discretion. Granite State cannot now
argue that these provisions grant County officials unbridled discretion.
[End Page 2. Granite State Lacks Standing to Challenge Allegedly]
Unconstitutional Prior Restraints.
Granite State argues that the district court erroneously dismissed its
challenges to several provisions of the Sign Ordinance as unconstitutional prior
restraints on speech. See Sign Ordinance §§ 134-372(b)(1)""(21), -315, -316, -317,
-318(a), -371. We have stated that "[i]n a challenge of a prior restraint on speech
the plaintiff must establish that the challenged provision pertains to its activity, and
not merely that it is "˜subject to the law.'" CAMP, 444 F.3d at 1276 (quoting City
of Lakewood, 486 U.S. at 755""56, 108 S. Ct. at 2143). Because its challenges
[End Page 13]
were dismissed on a motion for summary judgment, Granite State "must "˜set forth'
by affidavit or other evidence "˜specific facts' to prove standing." Lujan v.
Defenders of Wildlife, 504 U.S. 555
, 561, 112 S. Ct. 2130
, 2137 (quoting Fed. R.
Civ. P. 56(e)). None of the provisions that Granite State challenges pertains to its
Granite State lacks standing to challenge the restrictions on "temporary
signs," id. § 134-316, directional signs for the purpose of tourism or public
recreation, see id. § 134-317, and "off-premises signs," see id. § 134-315(a).
Because there is no evidence in the record that the signs Granite State intended to
construct signs governed by any of these regulations, Granite State does not have
standing to challenge them. The record shows that the only intended activity of
Granite State is outdoor advertising, which is categorically banned. Id. §§ 134-
Granite State also lacks standing to challenge the exemptions in the Sign
Ordinance, see Sign Ordinance § 134-372(b)(1)""(21), or the permit requirement,
see id. -371. The injury that Granite State suffered from being denied a permit
under the categorical ban on off-premises outdoor advertising would not be
redressed by a challenge to these provisions. See Lujan v. Defenders of Wildlife,
504 U.S. 555
, 561, 112 S. Ct. 2130
, 2136 (1992); see also Dimmitt v. City of
[End Page 14]
Clearwater, 985 F.2d 1565
, 1568 (11th Cir. 1993). Even if these provisions were
declared unconstitutional, the Sign Ordinance would continue to prohibit off-
premises outdoor advertising, which is the only intended activity of Granite State.
Because Granite State cannot establish that its injury will be redressed by a
favorable decision, "there would be no point in evaluating [Granite State's]
arguments as to those provisions." Coral Springs Street Sys., Inc. v. City of Sunrise,
371 F.3d 1320
, 1349 (11th Cir. 2004).
C. We Are Unable Meaningfully to Review the Claims of Granite State
Under the Georgia Constitution.
Granite State argues that the district court erred when it granted summary
judgment because the district court failed to consider whether any provision of the
Sign Ordinance violates the Georgia Constitution. The district court dismissed
these claims sub silentio, but because the district court "did not discuss the
matter[,] [i]t would be difficult for us to review the issue in this context." Lucero
v. Trosch, 121 F.3d 591
, 598 (11th Cir. 1997). The district court may have
concluded, on the one hand, that the arguments of Granite State under the Georgia
Constitution lacked merit because they failed under the First Amendment. But see
CAMP, 451 F.3d at 1280 ("Georgia courts depart from federal constitutional free
speech analysis for . . . content-neutral speech . . . because Georgia requires the
"˜least restrictive means' to regulate content-neutral speech." (quoting Statesboro
[End Page 15]
Publ'g Co. v. City of Sylvania, 516 S.E.2d 296, 299 (Ga. 1999))). The district
court may have declined, on the other hand, to exercise supplemental jurisdiction
because it "dismissed all claims over which it ha[d] original jurisdiction." 28
U.S.C. § 1367(c); see also United Min Workers v. Gibbs, 383 U.S. 715
, 86 S. Ct. 1130
(1966). "[I]f the federal claims are dismissed prior to trial, Gibbs strongly
encourages or even requires dismissal of state claims." Mergens v. Dreyfoos, 166 F.3d 1114
, 1119 (11th Cir. 1999) (citations omitted). When a district court
declines to exercise supplemental jurisdiction because only state law claims
remain, the district court should dismiss the state law claims without prejudice "so
that the claims may be refiled in the appropriate state court." Crosby v. Paulk, 187 F.3d 1339
, 1352 (11th Cir. 1999). "As a practical matter, the district court is in the
best position to weigh . . . whether it is appropriate to exercise supplement
jurisdiction." Lucero, 121 F.3d at 598. Because we cannot meaningfully review
the decision of the district court regarding the claims for relief under the Georgia
Constitution, we vacate the dismissal of those claims and remand for further
proceedings consistent with this opinion.
We affirm the summary judgment by the district court regarding the claims
for relief under the First Amendment of the United States Constitution. We vacate
[End Page 16]
and remand the dismissal of the claims for relief under the Georgia Constitution.
The summary judgment by the district court is
AFFIRMED in part and VACATED and REMANDED in part.
[End Page 17]