[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11497 June 7, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-07951 CV-WJZ
CORAL SPRINGS STREET SYSTEMS, INC.,
a Florida corporation,
Plaintiff-Appellee,
versus
CITY OF SUNRISE,
a Florida municipality,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 7, 2004)
Before HULL, MARCUS and STAHL*, Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
In this sign ordinance case, the City of Sunrise (the “City”) appeals the
district court’s grant of final summary judgment in favor of the plaintiff, Coral
Springs Street Systems, Inc. (“Coral Springs”). Coral Springs petitioned for
equitable relief in the United States District Court for the Southern District of
Florida, claiming that Article XIV of the City’s Land Development Code (the
“Sign Code”) was unconstitutional in its entirety at the time that Coral Springs
applied for and was denied a sign permit. After thorough review, we are
convinced the case is moot and therefore nonjusticiable.
Before suit was even brought in this case, the old Sign Code was replaced
by the City with an “Amended Sign Code” that eliminated most of the
constitutionally infirm provisions; but the new Code unquestionably prohibited the
sign that Coral Springs wants to erect. Moreover, there is no hint the City of
Sunrise has any intention of reenacting the old Sign Code. And, as we read the
law of Florida, Coral Springs acquired no vested right in a permit to build the sign,
both because it has not relied detrimentally on the law as it existed under the old
Sign Code and because the City has at no point acted in bad faith. Finally,
portions of the Amended Sign Code that may be unconstitutional are fully
severable from those that actually caused the permit to be denied. Accordingly,
2
we reverse the district court’s grant of summary judgment and remand with
instructions to dismiss for lack of subject matter jurisdiction.
I
The facts of this case are not in dispute. Coral Springs Street Systems is
engaged in the business of constructing billboards on real estate that it buys or
leases. On March 17, 1999, Street Information Systems, Inc., another billboard
company not involved in this case, entered into a lease agreement with Sawgrass
Ford, Inc., a car dealer located in the City of Sunrise. Under the terms of the
agreement, Sawgrass Ford agreed to lease land on its property to Street
Information Systems for twenty years, so that Street Information Systems could
erect a billboard overlooking a busy thoroughfare, the Sawgrass Expressway.
Several provisions of the agreement violated the Sign Code. Among other
things, the agreement provided for the construction of a “pole sign,” which was
prohibited under the Sign Code. Moreover, the Sign Code allowed only one sign
to be erected on each piece of property, and Sawgrass Ford already had a sign, so
the construction of another one plainly violated the Sign Code.
3
On August 1, 2000, Street Information Systems assigned its rights, title, and
interest in the lease to the plaintiff Coral Springs. On September 6, 2001, Coral
Springs applied for a permit to erect an “off-premises” outdoor advertising sign on
a pole. At the top of the pole Coral Springs intended to place a two-sided,
illuminated, 672-square-foot sign face. On September 18, the City verbally denied
the application and, on November 13, the City confirmed the denial in writing,
observing that the proposed sign would violate the Sign Code in no less than six
different ways:
1. § 16-252 of the Sign Code allowed no sign to exceed 8.5 feet in
height.1 The sign Coral Springs applied for would have been 65 feet
tall.
2. § 16-252 flatly prohibited any sign that exceeded eighty-five
square feet in total surface area.2 The proposed sign would have had
an area of 672 square feet.
1
Section 16-252 prescribed that the normal “Height Maximum” for signs was “6 ft.” and
that “[i]f a sign is to be located behind an existing required hedge or if visibility of an existing
sign is blocked by an existing required hedge and the hedge has a minimum required height of
thirty (30) inches or more, then the ground sign may have a maximum height of eight and one-
half (8 ½) feet.”
2
Specifically, under § 16-252, the “Area maximum” for signs with “200 ft. or
more of frontage” was “60 sq. ft.,” and the maximum for signs with “less than 200
ft. of frontage” was “36 sq. ft.” But for signs blocked by existing required hedges
as described above, “the sign area shall not exceed fifty-one (51) square feet and
frontage less than two hundred (200) feet, or eighty-five (85) square feet for
frontage two hundred (200) feet or greater.”
4
3. § 16-252 said that the “Number maximum” for “Nonresidential
district permanent signs” was “1 per parcel with main street
frontage.” The proposed sign would in fact have been the second
sign on the parcel.
4. § 16-248(a)(7) included “pole signs” on the list of “prohibited
signs.”3 The proposed sign would have been mounted on a pole.
5. § 16-255 mandated specific landscaping designs for signs.4 Coral
Springs’ proposed sign included no landscaping whatsoever.
6. § 16-248(a)(6) prohibited “[o]ff-premise commercial signs or
billboards except bus shelter or bench signs, and temporary project
sign [sic.].” Coral Springs’ proposed sign was an off-premise
commercial sign not falling within any of the exceptions.5
The Code also contained a number of other noteworthy provisions, not cited
as reasons for the rejection of Coral Springs’ application, but otherwise attacked
3
“The following signs are prohibited anywhere in the city:
....
(7) Pole signs.”
Sign Code § 16-248(a).
4
“Landscaping of ground sign. If a ground sign is not placed in an area of required
landscaping as contained in article VIII, then a planting bed at least two (2) feet in depth shall
surround the sign. This bed shall contain shrubs and supplemental ground cover, and shall be
shown on the site plan. If the base of the sign is less than thirty (30) inches, the landscaping must
be equal to the height of the base, subject to approval by the planning and development
department. In no case shall the planting be less than eighteen (18) inches in height.” Sign
Code § 16-255.
5
The Code defined an “off-premise sign” as “[a]ny sign advertising a commercial
establishment, activity, product, service or entertainment, which is sold, produced, manufactured,
available or furnished at a place other than on the property on which the sign is located.” Id. §
16-247(b)(24).
5
by Coral Springs as being unconstitutional.6 In response to the City’s list of
purported transgressions, Coral Springs’ attorney wrote the City on November 25,
2001, claiming that the City’s Sign Code violated the First Amendment. Just
sixteen days later, on December 11, the City amended the Sign Code, adopting
Ordinance No. 402-01-K, § 1 (the “Amended Sign Code”), eliminating many of
the allegedly unconstitutional provisions of the old Sign Code. The Amended
Sign Code substantively retained all the provisions of the Sign Code that were
6
For example, § 16-248(a) of the Sign Code said that “[t]he following signs are prohibited
anywhere in the city: . . . Animated or flashing signs . . . Banner signs . . . Buntings and flags . . .
temporary and permanent signs, other than public interest signs, place[d] on any public property .
. . [and] [a]ny sign not prescribed as a permitted sign by this article. Id. § 16-248(a). But §
16-248(a) also excepted certain signs from its prohibitions, including animated or flashing signs
that display the time or temperature; temporary grand opening or special event banner signs; the
United States flag; bus shelter or bench signs, and temporary project signs; and temporary and
permanent public interest signs. Id. § 16-248(a)(2), (3), (4), (6) & (12).
Section 16-250 permitted certain “Public interest signs,” including “signs placed on bus
benches[,] . . . [d]irectional signs for churches, schools or other like institutions[, and] [s]uch
similar signs as the city commission deems appropriate.” Id. § 16-250(a). Section 16-250 also
permitted “[s]treet signs, traffic signs, directional and locational signs and roadside memorial
signs placed by government agencies or with governmental approval”; “[i]nterior sign[s] within a
lobby or courtyard not visible from public right of way”; and “[n]o-trespassing or no-dumping
signs.” Id. § 16-250(b). Section 16-253(a) permitted certain “[t]emporary signs,” including
“[g]rand opening banner sign[s],” “[m]odel signs,” “[p]olitical sign[s]” (for 60 days before an
election and 14 days after), “[r]eal estate sign[s],” “[c]ontractor sign[s],” “[g]arage sale sign[s],”
“[p]roject sign[s],” “[s]pecial events sign[s],” and “[r]oadside memorial sign[s].” With certain
exceptions inapplicable to Coral Springs, the Sign Code also provided that “it shall be unlawful
for any person to erect, construct, enlarge, move or convert any sign in the city, or cause the same
to be done, without first obtaining a sign permit for each such sign from the Department as
required by the Code.” § 16-261(b)(1).
Notably, the Sign Code never laid out the specific grounds on which the City could reject
sign permit applications, nor did it contain any provision requiring the City to make decisions on
permit applications within a specific time limit.
6
cited in the rejection of Coral Springs’ sign application. Thus, § 16-252 of the
Amended Sign Code prohibited signs over 8.5 feet high, or over 85 square feet in
area, or more than one sign per parcel. Section 16-248(6) prohibited “pole signs.”
Section 16-255 set forth the exact same landscaping requirements contained in the
Sign Code. Section 16-247(b)(26) defined an “[o]ff-premise sign” as “[a]ny sign
advertising a commercial establishment, activity, product, service or
entertainment, which is sold, produced, manufactured, available or furnished at a
place other than on the property on which the sign is located” -- exactly the same
definition given to an “off-premise commercial sign” in the Sign Code. And §
16-248 prohibited such “[o]ff-premises signs except temporary project signs.”
The Amended Sign Code did make some significant changes. The new
Code said that “[n]otwithstanding any provisions of this article to the contrary, to
the extent that this article contains a sign containing commercial copy, it shall
permit a non-commercial sign to the same extent.” Amended Sign Code § 16-
247(a). The provision allowing temporary political signs imposed time limits on
political signs only “[i]f the copy is related to an election.” Id. § 16-253. The
Amended Sign Code also specifically provided that the City “shall approve or
deny the sign permit based on whether it complied with the requirements of this
article,” Id. § 16-261, and it required approval or denial of permit applications
7
within 30 days after receipt of an application. Id. Finally, the new Code expressly
provided for prompt appellate review of application denials by the city
commission and by the Circuit Court of Broward County.7
Notably, Coral Springs never reapplied for a permit under the Amended
Sign Code. Instead, it filed suit in federal district court on December 31, 2001. Its
argument essentially was that the Sign Code was unconstitutional on its face when
Coral Springs applied for the permit on September 6, 2001; that the
unconstitutional provisions of the Sign Code could not be severed from the
constitutional parts, meaning the entire statute was unlawful and therefore void;
and consequently, that there was no enforceable Sign Code in place at the time of
the application. In short, the plaintiff said, the application satisfied all state laws
and the City had no valid basis for rejecting it, and, under Florida law, its right to
the building permit vested at the moment it submitted an application. Finally,
7
The applicant may file a written notice of appeal to the city commission within
fifteen (15) days after the receipt of the department’s written notice. The city
commission shall hear the appeal and render a decision within thirty (30) days
after the date of receiving the written notice of appeal. If the city commission
does not grant the appeal, then the applicant may seek relief in the Circuit Court
for Broward County, as provided by law.
Amended Sign Code § 16-261.
8
Coral Springs claimed, parts of the Amended Sign Code remained
unconstitutional.
The City responded that the lawsuit was moot because the City had
amended the challenged Sign Code and Coral Springs had never reapplied for a
permit under the new law. Furthermore, the City argued, the old Sign Code was
constitutional anyway, and to the extent that parts of it may not have been, they
were nonetheless severable from the remaining valid parts, which included all of
the provisions cited by the City in denying Coral Springs’ application. Finally, the
City said, Coral Springs had no vested right to the approval of its permit.
On February 21, 2003, the district court granted summary judgment in favor
of Coral Springs on all counts. See Coral Springs St. Sys., Inc. v. City of Sunrise,
287 F. Supp. 2d 1313 (S.D. Fla. 2003). Before deciding whether it had
jurisdiction, the district court first ruled that the old Sign Code was
unconstitutional. The court reasoned that the original Code favored commercial
speech over non-commercial speech by prohibiting certain kinds of
non-commercial signs, but not prohibiting any kind of commercial sign. Id. at
1319. In addition, the court found that the Code impermissibly restricted signs on
the basis of content, because some noncommercial messages were permitted while
others were not. Id.
9
As for mootness, the district court held that the case was justiciable. It
wrote:
The City argues that Coral Springs’ claims are mooted by the
enactment of the Amended Sign Code. The Eleventh Circuit has held
that “when an application for a permit satisfies all existing and
pending laws, the permit must then issue: a new law passed after the
application was filed has no effect on the matter of issuance,” Nat’l
Adver. Co. v. City of Fort Lauderdale, 8 F. 3d 36 (11th Cir., Oct. 26,
1993) (per curiam) (unpublished table decision No. 92-4750). Here,
Coral Springs applied for a permit prior to the enactment of the
Amended Sign Code. The enactment of the Amended Sign Code,
therefore, does not [a]ffect the issue of whether Coral Springs has a
vested right in the permit for which it applied. Thus, the city’s
argument that Coral Springs’ claims are moot fails.
Id. at 1319-20.
The district court concluded that because the unconstitutional portions of
the Sign Code could not be severed from its constitutional parts and because Coral
Springs’ right to the permit categorically vested at the time it submitted its
application, Coral Springs had a right to the permit. Id. at 1320-21. Accordingly,
it granted summary judgment in favor of Coral Springs, ordering the City to issue
the permit. Id. at 1321. The City then took this appeal.
II
10
Mootness is the threshold question in this case. Article III of the
Constitution limits the jurisdiction of federal courts to “cases” and
“controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S. Ct.
2130, 2136, 119 L. Ed. 2d 351 (1992). “Because the judiciary is unelected and
unrepresentative, the Article III case-or-controversy limitation, as embodied in
justiciability doctrine, presents an important restriction on the power of the federal
courts.” Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998).
As the Supreme Court has put it, “the ‘case or controversy’ requirement defines
with respect to the Judicial Branch the idea of separation of powers on which the
Federal Government is founded. The several doctrines that have grown up to
elaborate that requirement are ‘founded in concern about the proper -- and
properly limited -- role of the courts in a democratic society.’” Allen v. Wright,
468 U.S. 737, 750, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556 (1984) (quoting Warth
v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975)). The
powerful limitations that Article III places on the federal judiciary -- including the
mootness doctrine -- relate to a centuries-old “idea . . . about the constitutional and
prudential limits to the powers of an unelected, unrepresentative judiciary in our
kind of government.” Vander Jagt v. O'Neill, 699 F.2d 1166, 1179 (D.C. Cir.
1983) (Bork, J., concurring).
11
Plainly, if a suit is moot, it cannot present an Article III case or controversy
and the federal courts lack subject matter jurisdiction to entertain it. See Al Najjar
v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001) (per curiam) (“[M]ootness is
jurisdictional. Any decision on the merits of a moot case or issue would be an
impermissible advisory opinion.” (internal quotation marks and citations
omitted)); Socialist Workers Party, 145 F.3d at 1244. Mootness can occur due to a
change in circumstances, or, as here, a change in the law. As we have said,
“[w]hen a subsequent law brings the existing controversy to an end the case
becomes moot and should be treated accordingly.” Coalition for the Abolition of
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000)
(citing Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d
598, 605 (11th Cir. 1985)) (internal quotation marks omitted). Therefore, we are
required to address the jurisdictional question before we may consider the merits
of the case.
We review the question of mootness de novo. Christian Coalition of
Alabama v. Cole, 355 F.3d 1288, 1290 (11th Cir. 2004) (citing United States v.
Fla. Azalea Specialists, 19 F.3d 620, 621 (11th Cir. 1994)). As we have noted, the
City of Sunrise argues that this case is moot because it amended the Sign Code
soon after the plaintiff complained about its constitutionality, and, notably, before
12
any lawsuit was filed. Coral Springs responds with two basic arguments: first, it
says that a defendant’s voluntary cessation of an illegal activity cannot moot a
lawsuit because the activity can be resumed as soon as the case is dismissed; and
second, it claims that, under Florida law, its right to a permit vested upon
submitting its original application, and that we must therefore determine whether
the old Sign Code was constitutionally valid in order to decide whether Coral
Springs was entitled to a permit. We are persuaded by neither argument and,
accordingly, hold that this case is moot.
A. Voluntary Cessation
As for voluntary cessation, “[i]t has long been the rule that ‘voluntary
cessation of allegedly illegal conduct does not deprive the tribunal of power to
hear and determine the case, i.e., does not make the case moot.’” Sec’y of Labor v.
Burger King Corp., 955 F.2d 681, 684 (11th Cir. 1992) (quoting United States v.
W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 897, 97 L. Ed. 1303 (1953)).
“Because of the possibility that the defendant could merely return to his old ways,
[t]he test for mootness in cases such as this is a stringent one. . . . A case might
become moot if subsequent events made it absolutely clear that the allegedly
13
wrongful behavior could not reasonably be expected to recur.” Id. (alteration in
original) (internal quotation marks and citation omitted). However, governmental
entities and officials have been given considerably more leeway than private
parties in the presumption that they are unlikely to resume illegal activities. See
Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988) (“[C]essation of the
allegedly illegal conduct by government officials has been treated with more
solicitude by the courts than similar action by private parties.”).
Generally, a challenge to the constitutionality of a statute is mooted by
repeal of the statute. In Coalition for the Abolition of Marijuana Prohibition, for
example, a panel of this Court said that “when an ordinance is repealed by the
enactment of a superseding statute, then the ‘superseding statute or regulation
moots a case only to the extent that it removes challenged features of the prior
law.’” 219 F.3d at 1310 (quoting Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515,
1520 (11th Cir. 1992)). Moreover, on numerous occasions, the Supreme Court has
held that the repeal of or amendment to challenged legislation rendered moot a
plaintiff’s request for injunctive relief. See, e.g., Lewis v. Cont’l Bank Corp., 494
U.S. 472, 474, 110 S. Ct. 1249, 1252, 108 L. Ed. 2d 400 (1990) (holding that a
Commerce Clause-based challenge to Florida banking statutes was rendered moot
by amendments to the law); Massachusetts v. Oakes, 491 U.S. 576, 582-83, 109 S.
14
Ct. 2633, 2637-38, 105 L. Ed. 2d 493 (1989) (holding that an overbreadth
challenge to a child pornography law was rendered moot by amendment to the
statute); Princeton Univ. v. Schmid, 455 U.S. 100, 103, 102 S. Ct. 867, 869, 70 L.
Ed. 2d 855 (1982) (per curiam) (holding that the challenge to a university
regulation was moot because the regulation had been substantially amended);
Kremens v. Bartley, 431 U.S. 119, 128-29, 97 S. Ct. 1709, 1715, 52 L. Ed. 2d 184
(1977) (holding moot a constitutional challenge to a state statute governing the
involuntary commitment of mentally ill minors, because the law had been replaced
with a different statute); Diffenderfer v. Cent. Baptist Church, Inc., 404 U.S. 412,
415, 92 S. Ct. 574, 576, 30 L. Ed. 2d 567 (1972) (holding moot a challenge to a
Florida tax exemption for church property when the law had been repealed).
An important exception to this general rule applies if there is a substantial
likelihood that the challenged statutory language will be reenacted. Thus, in City
of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 102 S. Ct. 1070, 71 L. Ed. 2d 152
(1982), the Supreme Court denied a mootness claim even though the challenged
law was no longer in effect. In that case -- a void-for-vagueness challenge to a
city statute -- the ordinance had been amended and the challenged language
repealed by the time the case was decided by the Court of Appeals. Id. at 288.
The Supreme Court nonetheless concluded that the case was not moot, because
15
“the city’s repeal of the objectionable language would not preclude it from
reenacting precisely the same provision.” Id. at 289. The Court observed that
“[t]here is no certainty” that this reenactment would not occur. Id. Indeed, in
contrast to the cases cited above, in Mesquite, the Court noted that the City had
expressly announced an intention to reenact the old language if the Court vacated
the district court’s holding that the language of the statute was unconstitutionally
vague. Id. at 289 & n.11. Plainly, Mesquite differed from Lewis, Oakes, and the
others because the Court found that if it held there was no jurisdiction to evaluate
the case on the merits, then the challenged law would be reenacted.
Similarly, in Northeastern Florida Chapter of Associated General
Contractors of America v. City of Jacksonville, Fla., 508 U.S. 656, 113 S. Ct.
2297, 124 L. Ed. 2d 586 (1993), the Supreme Court declined to find moot a
challenge to a minority set-aside program even though the challenged law had
been repealed, because it had been replaced with a law that, although somewhat
narrower, still had the potential to disadvantage the plaintiff: “There is no mere
risk that Jacksonville will repeat its allegedly wrongful conduct; it has already
done so.” Id. at 662, 113 S. Ct. at 2301.
In general, then, the Supreme Court has declined to hold moot a challenge
to a repealed law only when the law is reasonably likely to be reenacted or when it
16
is replaced by another constitutionally suspect law. See also 13A Wright et al.,
Federal Practice and Procedure § 3533.7 (2d ed. 2004) (“The determination
whether discontinuance moots a case is apt to be affected by the distinction
between public and private defendants. Courts are more apt to trust public officials
than private defendants to desist from future violations.”). Likewise, this Court
has repeatedly held that the doctrine of voluntary cessation does not apply in cases
where challenged laws have been repealed unless there is some reason to believe
that the law may be reenacted after dismissal of the suit. Thus, for example, in
Jews for Jesus v. Hillsborough County Aviation Authority, 162 F.3d 627 (11th
Cir. 1998), we held that where a public airport had lifted a prohibition on
distributing literature after a complaint had been filed, the issue of whether the
prior policy was constitutional was “a purely academic point” and was accordingly
moot, precisely because there was “no reasonable expectation that the challenge
[would] resume after the lawsuit [was] dismissed.” Id. at 629 (citation and
quotation marks omitted). In reaching this conclusion, we considered the fact that
the changed policy was the result of “substantial and conscientious deliberation,”
and had been “consistently applied” since its enactment. Id.
We recently came to the same result in Christian Coalition of Alabama v.
Cole, 355 F.3d 1288 (11th Cir. 2004). The Christian Coalition of Alabama
17
challenged an advisory opinion from the Alabama Judicial Inquiry Commission
(“JIC”) regarding public statements by candidates for judicial office. In response
to the Supreme Court’s decision in Republican Party of Minnesota v. White, 536
U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002), the JIC withdrew its advisory
opinion. The district court in Christian Coalition granted the defendant’s motion
to dismiss because the case was moot, and the Eleventh Circuit affirmed.
A panel of this Court said that “[o]nly when ‘the defendant can demonstrate
that “there is no reasonable expectation that the wrong will be repeated”’ are
federal courts precluded from deciding the case on mootness grounds.” Id.
(quoting W.T. Grant Co., 345 U.S. at 633, 73 S. Ct. at 897 (quoting United States
v. Aluminum Co. of Am., 148 F.2d 416, 448 (2d Cir. 1945))). In that case, we
found the possibility slim indeed: “[T]he JIC members have stated no intention to
reenact their Advisory Opinion. Instead, the JIC members have professed the
contrary intent, stating in a pleading submitted to the district court that they
‘hereby represent that the JIC will not file charges against any judge in connection
with the CCA questionnaire.’” Id. at 1292. This was especially the case since, in
light of the Supreme Court’s ruling in White, the Alabama Supreme Court’s
Committee on the Canons decided to reevaluate the Canons on which the JIC
based its advisory opinions. Id. For that reason, we were fully satisfied that “the
18
CCA has every reason to believe that the JIC’s representation is genuine, and can
reasonably expect that the JIC will not issue another opinion preventing judges
from answering the questionnaire at issue in this case.” Id. at 1292-93.8
Whether the repeal of a law will lead to a finding that the challenge to the
law is moot depends most significantly on whether the court is sufficiently
convinced that the repealed law will not be brought back.9 In National
8
We reached a similar result on a challenge of a sign ordinance in Revolution Outdoor
Advertising, Inc. v. City of Casselberry, No. 00-10863 (11th Cir. 2000) (unpublished opinion).
The plaintiff challenged the City’s sign code, and four months after the filing of the complaint
the City amended its ordinance, designed to remedy the alleged constitutional problems of the
old sign code. The City then moved for summary judgment, and the district court granted it on
mootness grounds. The district court did not apply the voluntary cessation doctrine, observing
that “Plaintiff offers no evidence showing that Defendant’s course of conduct is actually a
strategic ploy designed to defeat jurisdiction in this case. Instead, the evidence establishes just
the opposite.” Revolution Outdoor Adver., Inc. v. City of Casselberry, No. 98-01344 (M.D. Fla.
2000), at 6-7. The court reached this conclusion because the City had placed a moratorium on
the old sign ordinance prior to the commencement of the litigation, because the new sign code
was the product of “substantial deliberation,” and because the City adopted a formal resolution
that it would not readopt any aspect of the old sign code that might violate the First Amendment.
Id. at 7. The Eleventh Circuit affirmed, saying simply that “[t]here is no indication from the
record that the City has any intention of reenacting the challenged portions” of the repealed
ordinance. Revolution, No. 00-10863 at 2.
9
We add that our view of the law as to voluntary cessation by governmental actors is
altogether consonant with that of every other Federal Circuit to address the issue. The federal
courts of appeal have virtually uniformly held that the repeal of a challenged ordinance will moot
a plaintiff’s request for injunctive relief in the absence of some evidence that the ordinance has
been or is reasonably likely to be reenacted. See, e.g., Fed’n of Adver. Indus. Representatives,
Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (holding that a suit became moot when
the challenged ordinance had been repealed and saying that “we have repeatedly held that the
complete repeal of a challenged law renders a case moot, unless there is evidence creating a
reasonable expectation that the City will reenact the ordinance or one substantially similar”);
Citizens for Responsible Gov’t v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000) (concluding
that a challenge to the constitutionality of certain sections of the Colorado Fair Campaign
Practices Act were moot because those sections had been repealed, and saying that “[i]n general,
19
Advertising Company v. City of Ft. Lauderdale, 934 F.2d 283 (11th Cir. 1991)
[hereinafter “National I”], we evaluated a challenge to a city’s repealed sign code.
National, another outdoor advertising company, filed suit against the City of Fort
Lauderdale, challenging its sign ordinance on First Amendment grounds. Id. at
284. After filing suit, it applied for permits to erect twenty billboards containing
both commercial and non-commercial messages. Id. The City’s sign code
specifically prohibited billboards, and the applications were rejected the same day
they were submitted. Id. National then sought review by the City’s Board of
Adjustment, which characterized the action as a request for a variance under the
the repeal of a challenged statute is one of those events that makes it absolutely clear that the
allegedly wrongful behavior . . . could not reasonably be expected to recur” (internal quotation
marks omitted)); D.H.L. Assoc. v. O’Gorman, 199 F.3d 50, 55 (1st Cir. 1999) (examining the
claim of a property owner who had brought a state court action against town and town officials,
challenging a zoning ordinance that regulated adult entertainment businesses, and holding the
suit moot, because challenges to repealed laws are normally moot, and the court found that “it
would be unreasonable to presume that the Town would return to its prior zoning plans after the
conclusion of this litigation”); Nat’l Black Police Ass’n v. Dist. of Columbia, 108 F.3d 346, 349
(D.C. Cir. 1997) (holding that a challenge to the constitutionality of a voter initiative restricting
campaign contributions for local political candidates was mooted by the passage of legislation
increasing contribution limits, because there was no “evidence indicating that the challenged law
likely will be reenacted”); Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997)
(holding moot a challenge to a campaign finance law because the law had been repealed and the
state had announced no intention to reenact it); Native Village of Noatak v. Blatchford, 38 F.3d
1505, 1510 (9th Cir. 1994) (holding that “[a]s a general rule, if a challenged law is repealed or
expires, the case becomes moot” except where “it is virtually certain that the repealed law will be
reenacted”); Assoc. Gen. Contractors of Conn., Inc. v. City of New Haven, 41 F.3d 62, 66 (2d
Cir. 1994) (holding moot an action challenging the constitutionality of a city ordinance setting
aside a percentage of city contracts for women-owned and disadvantaged business enterprises
because the ordinance had expired and there was no evidence it would be reenacted).
20
City’s zoning regulations. Id. Following several steps in the application process,
National’s requests were rejected by the Board. Id.
About six weeks after it was sued, the City of Fort Lauderdale amended its
sign code to remove the constitutionally objectionable provisions. Id. at 284-85.
The very next day, it filed a suggestion of mootness and a motion to dismiss on the
grounds that the amendments remedied any constitutional infirmities which may
have disabled the original ordinance. Id. The district court granted the motion,
but a panel of this Court reversed and remanded. Addressing whether the
amendment to the sign ordinance rendered the case moot, we stated:
The City presently possesses the power and authority to amend the
sign code. It remains uncertain whether the City would return the sign
code to its original form if it managed to defeat jurisdiction in this
case. Neither the City nor the district court has established that the
likelihood of further violations is sufficiently remote to dismiss
National’s claims.
Id. at 286. We therefore rejected the defendant’s suggestion that the suit was moot
because there was a not-insubstantial chance that the law would be reenacted.
This finding was undoubtedly informed by the timing of the change in the law --
well after suit had already been brought, which reasonably led the Court to doubt
the City’s sincerity.
21
The essential difference between the circumstances we found in the Jews for
Jesus, Christian Coalition, and Revolution cases and those in National I is that in
the first three cases, there was no reasonable chance that the challenged policy
would be reinstated. In Jews for Jesus, we wrote that “voluntary cessation of a
challenged practice renders a case moot only if there is no ‘reasonable
expectation’ that the challenged practice will resume after the lawsuit is
dismissed.” 162 F.3d at 630 (citing County of Los Angeles v. Davis, 440 U.S.
625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979); W.T. Grant Co., 345 U.S.
at 633, 73 S. Ct. at 897). In making this clear finding, we expressly distinguished
the facts in Jews for Jesus from those encountered in National I, characterizing
National I as having held that that case was not moot “because there was a
reasonable expectation that the challenged conduct would recur.” Id.
Just as the circumstances in Jews for Jesus, Christian Coalition, and
Revolution convinced us of the genuineness of the defendant’s representation that
the challenged law or advisory opinion would not be reenacted, we are persuaded
today that the City of Sunrise will not bring back the Sign Code.10 In the first
10
We note in passing that on numerous occasions, appellate courts have made this critical
determination of whether reenactment of the challenged law was likely, without remand or
deference to the district courts. See, e.g., Christian Coalition, 355 F.3d at 1292-93 (“[T]he
[plaintiff] has every reason to believe that the [defendant]’s representation is genuine, and can
reasonably expect that the [defendant] will not issue another opinion preventing judges from
answering the questionnaire at issue in this case.”); Jews for Jesus, 162 F.3d at 630 (“The district
22
place, at oral argument, counsel for the City expressly disavowed any intention of
defending the old Sign Code, and the City’s brief repeatedly represented that there
was “no indication whatsoever that the City would reenact the Sign Code in the
future.” Def. Brief at 19. More significantly, here the City promptly amended the
Sign Code in response to a single letter from the plaintiff, and, notably, before it
had ever been sued. The City’s behavior stands in stark contrast to that of the
defendant in National I, which did not change the offending law until six weeks
after it had been sued, and moved to dismiss the day after the change. Indeed, the
City of Sunrise altered its Sign Code with nary a whimper of protest after Coral
Springs’ counsel sent the City a letter objecting to it. It did so within sixteen days
of receiving the letter. On this record, we can discern absolutely no indication --
and Coral Springs does not even try to argue -- that the City repealed its old Sign
Code in bad faith, intending to reinstate it later, just as soon as the threat of a
lawsuit had abated.
court found that there was no reasonable expectation that the Tampa International Airport would
return to its prior policy. We agree. . . . Because there is no reason to think that the airport will
change its policy at the conclusion of this lawsuit, we affirm the district court’s dismissal of the
suit as moot.”); Revolution, No. 00-10863, at 3 (“There is no indication that the City has any
intention of reenacting the challenged portions of the 1992 Ordinance.”). On the peculiar facts
and circumstances of this case, we can discern no reason not to make a determination of this
kind.
23
Moreover, if the City of Sunrise did somehow nurture the intention of
reinstating the old, purportedly unconstitutional Sign Code, and actually adopted
the Amended Sign Code as a temporary measure whenever another lawsuit
appeared on the horizon, we would plainly forbid it from doing so. In Jews for
Jesus, 162 F.3d at 630, we specifically warned against the possibility of this kind
of “flip-flopping.” Accordingly, the voluntary cessation doctrine is inapplicable,
and will not save this case from a mootness determination.
B. Vested Rights
Coral Springs also says that its lawsuit has not become moot because, under
Florida law, its right to the sign permit vested at the time of application, so that
any subsequent changes to the relevant law would not affect whether it is entitled
to the permit. Not surprisingly, vested rights are not created easily. A “vested
right” has been defined as “[a] right that so completely and definitely belongs to a
person that it cannot be impaired or taken away without the person’s consent.”
Black’s Law Dictionary (7th ed. 1999). Whether the right to a permit has vested is
a question of state law. As the Supreme Court has said, “[p]roperty interests, of
course, are not created by the Constitution. Rather they are created and their
24
dimensions are defined by existing rules or understandings that stem from an
independent source such as state law -- rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548
(1972); see also Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1379
(11th Cir. 1994). In ascertaining Florida law, we look to both the state’s Supreme
Court and, where necessary, its District Courts of Appeal. See Veale v. Citibank,
F.S.B., 85 F.3d 577, 580 (11th Cir. 1996) (“In matters of state law, federal courts
are bound by the rulings of the state’s highest court. If the state’s highest court has
not ruled on the issue, a federal court must look to the intermediate state appellate
courts.” (citing Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S. Ct. 1015, 1017-18,
88 L. Ed. 1246 (1944); Fidelity Union Trust Co. v. Field, 311 U.S. 169, 177-78, 61
S. Ct. 176, 177-79, 85 L. Ed. 109 (1940))).
There is no question that an unconstitutional statute is void under state law.
See Bhoola v. City of St. Augustine Beach, 588 So. 2d 666 (Fla. Dist. Ct. App.
1991) (holding that a city ordinance passed in violation of law “is not voidable, --
it is void”); see also Josephson v. Autrey, 96 So. 2d 784, 789 (Fla. 1957) (en banc)
(stating that an unlawful ordinance “can have no effect whatsoever”). It follows
that a city may not withhold an application on the basis of a void ordinance, and
25
under certain circumstances, this can give rise to a vested right in the permit. The
question, then, is when such a right is created under Florida law.
A long line of Florida cases has evaluated the question of when a party
acquires a vested right to such things as sign permits, building (construction)
permits, and liquor licenses.11 The overarching pattern in Florida’s case law is that
vested rights can be created -- thus creating an enforceable entitlement in the face
of subsequent changes in the law -- only in two circumstances. The first and more
common way a vested right is created occurs when a party has reasonably and
detrimentally relied on existing law, creating the conditions of equitable estoppel.
In the second, less common case, a vested right may be created in the absence of a
showing of detrimental reliance when the defendant municipality has acted in a
clear display of bad faith. As best we can tell, absent either a finding of equitable
estoppel or bad faith, no Florida court has ever found a vested right to exist in a
sign permit or similar entitlement. In this case we can find neither equitable
estoppel nor bad faith, and, accordingly, Coral Springs does not have a vested
right to a sign permit.
11
A review of Florida’s case law suggests little distinction among the rights enjoyed by
applicants for construction permits, those enjoyed by applicants for sign permits, and those
enjoyed by applicants for liquor licenses. The cases cite each other as if the relevant entitlements
were more or less interchangeable, which suggests that the same case law as to vested rights
applies equally to all.
26
1. Equitable Estoppel
In the majority of Florida cases finding that a party holds a vested right to a
construction permit or similar entitlement, the conditions of equitable estoppel
were met. The Florida courts have made it abundantly clear that when a property
owner incurs a substantial investment of time or money in reasonable reliance on
existing laws and with no reason to know that the laws are likely to change, he
may acquire a vested right in a building permit. Thus, under Florida law, the
doctrine of equitable estoppel may be invoked against a local government “when a
property owner (1) in good faith (2) upon some act or omission of the government
(3) has made such a substantial change in position or has incurred such extensive
obligations and expenses that it would be highly inequitable and unjust to destroy
the right he acquired.” City of Hollywood v. Hollywood Beach Hotel Co., 283 So.
2d 867, 869 (Fla. Dist. Ct. App. 1973) (citing Sakolsky v. City of Coral Gables,
151 So. 2d 433 (Fla. 1963)), aff’d in part and rev’d in part on other grounds, 329
So. 2d 10 (Fla. 1976). More broadly, the Second District Court of Appeal
described equitable estoppel, quoting the lower court, in these terms:
“Stripped of the legal jargon which lawyers and judges have
obfuscated it with, the theory of estoppel amounts to nothing more
than an application of the rules of fair play. One party will not be
permitted to invite another onto a welcome mat and then be permitted
to snatch the mat away to the detriment of the party induced or
27
permitted to stand thereon. A citizen is entitled to rely on the
assurances or commitments of a zoning authority and if he does, the
zoning authority is bound by its representations, whether they be in
the form of words or deeds . . . .”
Town of Largo v. Imperial Homes Corp., 309 So. 2d 571, 573 (Fla. Dist. Ct. App.
1975) (alteration in original).
Thus, for example, in Hollywood Beach Hotel Co. v. Hollywood Beach
Hotel Co., 329 So. 2d 10 (Fla. 1976) (per curiam), the plaintiffs spent almost
$200,000 and nine or ten months of time in preparation for construction of a large
residence building, in good faith reliance on a rezoning and permit. Id. at 12. But
then the City (after political upheaval that resulted in the electoral defeat of every
Commission member who had voted for the ordinance) reconsidered its rezoning,
and the plaintiffs eventually sued for a permanent injunction to construct the
building. The Florida Supreme Court concluded that the City’s actions in
delaying the plaintiffs’ ability to begin construction constituted “unfair dealing,”
and therefore invoked the principle of equitable estoppel. Id. at 18.
Likewise, in Sakolsky, a plaintiff became interested in constructing a luxury
apartment building in Coral Gables. 151 So. 2d at 434. He met with the City’s
mayor to discuss his plans, and then bought a tract of land. Id. Upon notice and a
public hearing, the City Commission voted to issue a permit for the construction of
28
a 12-story apartment building on the property. Id. According to the Florida
Supreme Court, it was “uncontroverted that petitioner changed his position
materially and incurred very substantial expense in reliance upon the permission
granted and permit issued by the respondent City.” Id. at 434-35. But at a
meeting held several weeks after the permit had been issued, the City Commission,
upon motion by a member whose opposing vote had at the December meeting
been overridden, passed an ordinance rescinding petitioner’s permit. Id. at 435.
After losing in the lower courts, Sakolsky appealed to the Supreme Court of
Florida, which again held that “[t]he law is clearly established that the doctrine of
equitable estoppel may prevent arbitrary rescission of a permit by a municipality.”
Id. The Court concluded that “[Sakolsky] acted in good faith and should not be
denied the benefit of the estoppel doctrine upon which his complaint is founded.”
Id. at 436.
Similar conditions of reliance and estoppel have been found in the vast
majority of the other Florida cases. See, e.g., Texas Co. v. Town of Miami
Springs, 44 So. 2d 808, 809 (Fla. 1950) (holding that because oil company spent
$12,500 to build gas stations, the case was “pregnant with equity,” and “a typical
case of estoppel”); Bregar v. Britton, 75 So. 2d 753, 756 (Fla. 1954) (plaintiff
spent about $28,000 to build drive-in movie theater, thus giving rise to equitable
29
estoppel); Imperial Homes, 309 So. 2d at 572-73 (plaintiff spent over $379,000 in
reliance on existing zoning laws); Equity Resources, Inc. v. County of Leon, 643
So. 2d 1112, 1119 (Fla. Dist Ct. App. 1994) (holding a vested right to exist when
“the county continuously issued permits for the unrestricted construction of the
project over a period of 18 years with knowledge of expenditures for
improvements to be made for the benefit of” the plaintiff’s land).12
12
Federal courts, sitting in equity and evaluating Florida law on vested rights, also have
generally invoked the doctrine of equitable estoppel. See, e.g., Reserve, Ltd. v. Longboat Key,
17 F.3d 1374, 1380-81 (11th Cir. 1994) (finding that under Florida law the plaintiff had a vested
property right to a building permit because it possessed such a permit and expended large sums
of money in reliance on it, and saying that the Florida courts “have consistently held
that a landowner has a property right in a building permit where the landowner
possesses a building permit and where the circumstances that give rise to the
doctrine of equitable estoppel are present” (emphasis added) (internal quotation
marks omitted)); A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d 1483, 1488
(11th Cir. 1988), cert. denied, 490 U.S. 1020, 109 S. Ct. 1743, 104 L. Ed. 2d 180
(1989) (in a takings suit, holding that a landowner had property rights in a
proposed development, in part because of the substantial expense incurred after
the granting of the permits); Henniger v. Pinellas County, 7 F. Supp. 2d 1334
(M.D. Fla. 1998) (holding that equitable estoppel applied, creating a vested right
in a building permit after the plaintiff had reasonably relied on the issuance of a
permit to build a poolhouse and begun construction); Decarion v. Monroe County,
853 F. Supp. 1415, 1418-19 (S.D. Fla. 1994) (finding a vested right when the
plaintiffs had spent and obligated $2 million in reasonable reliance on the county’s
final approval of its development plans); Hy Kom Development Co. v. Manatee
County, 837 F. Supp. 1182, 1187 (M.D. Fla. 1993) (finding equitable estoppel to
be present in a § 1983 suit alleging violations of due process and equal protection
when the county invalidated a developer’s building permit, awarding a developer a
property right in a building permit after it spent $2.5 million in reasonable reliance
on the permit to build a condominium apartment building).
30
The converse is equally true: in the absence of equitable estoppel, Florida’s
courts have consistently denied vested rights. See, e.g., City of Gainesville v.
Cone, 365 So. 2d 737, 739 (Fla. Dist. Ct. App. 1978) (denying claim for vested
rights in existing zoning laws because “[a]n owner of property acquires no vested
rights in the continuation of existing zoning or land use regulations as to such
property unless matters creating an estoppel against the zoning authority have
arisen”); City of Ft. Pierce v. Davis, 400 So. 2d 1242, 1244 (Fla. Dist. Ct. App.
1981) (holding that $4,000 that the plaintiff spent, most of it after the plaintiff had
notice of the City’s intent to change, was not enough to trigger equitable estoppel).
2. Bad Faith
Florida’s courts also have created a vested right in a smaller number of
cases, in the absence of estoppel, where the defendant municipality acted in blatant
and obvious bad faith in denying a permit or license. Bad faith was evinced by the
fact that the municipality did not change the relevant law until after the plaintiff
had both sued and obtained a writ from a state court of general jurisdiction, or
because the county deliberately withheld a permit it otherwise would have
awarded until after a voter-approved moratorium went into effect.
31
In the early days of the automobile, the Florida Supreme Court evaluated the
case of Aiken v. E.B. Davis, Inc., 143 So. 658 (Fla. 1932) (en banc) (per curiam).
The plaintiff applied for a permit to build a “filling station” in an area where there
was no relevant zoning law in effect. But after he applied, the town council of
Boca Raton passed an “emergency ordinance” (later made permanent) placing the
lot of land into a residential zone that prohibited the construction of a filling
station. The plaintiff then obtained a peremptory writ of mandamus to compel the
City to issue a permit, with the lower court saying that “the municipality acted
unreasonably and arbitrarily.” Id. The Supreme Court of Florida affirmed. One
concurrence (speaking for four justices) said that changing the zoning law was “an
attempted judicial decree by the legislative power of the city against the then
existing rights of the relator, and therefore that such ordinance as applied to
relator, is unreasonable and arbitrary.” Id. at 658-59 (Davis, J., concurring)
(emphasis omitted). Another concurrence said that the town’s motivation in trying
to prohibit a filling station was purely aesthetic in nature, with an “obvious lack of
any emergency existing in the interest of public health or convenience” and was
therefore not a proper use of the town’s police power to pass zoning laws. Id. at
659 (Ellis, J., concurring).
32
The overriding principle of Aiken is that a vested right was created because
the town wrongly singled out the plaintiff and hastily passed a new ordinance for
the purpose of preventing the construction of a filling station despite no evident
public benefit in this change. The City had no zoning ordinance in place, and it
decided, only after receiving the application to build a filling station, to suddenly
put a new law into effect that would bar its construction. The Florida Supreme
Court determined that this post-hoc change in the law could not stand.
The Florida Supreme Court reached a similar result fifteen years later, in
Harris v. State ex rel. Webster, 31 So. 2d 264 (Fla. 1947). Webster applied for and
was denied a liquor license. Id. at 265. He then petitioned for a writ of mandamus
challenging the validity of the City’s liquor licensing ordinance under the state
liquor law. Id. The trial court agreed and issued the writ, and in response, the
City changed the ordinance, replacing it with a valid one that would have
disallowed the type of license Webster had initially sought. Id. at 266. The
Florida Supreme Court ordered the City to grant him a liquor license, citing Aiken
as having held:
[T]he rights of a relator in a mandamus suit, claim for which was
asserted by an alternative writ granted and served prior to action
taken by the respondent city and its officials in an effort to avoid
having to comply with its commands, would be affected by any such
subsequent action, and that a peremptory writ would issue in
33
accordance with the alternative writ though the action taken, had it
occurred before the issuance of the alternative writ, would have been
a good defense.
Id. at 266 (emphasis added). The state Supreme Court thus said that a change in
law that took place before a court order compelling the grant of the permit would
have constituted a defense against the claim. See also Broach v. Young, 100 So.
2d 411, 414 (Fla. 1958) (Drew, J., dissenting) (“The Aiken and Harris cases place
this Court with those that hold that if the application is unreasonably refused or
delayed and the subsequent ordinance enacted in bad faith, the law at the time of
the application should be applied.”); City of Margate v. Amoco Oil Co., 546 So.
2d 1091, 1092-94 (Fla. Dist. Ct. App. 1989) (affirming an order for injunctive
relief in which the trial court found that the City acted “‘arbitrarily, capriciously,
discriminatorily and illegally’ in denying the permit” to build a gas station because
“the City illegally denied a permit that should have been issued and then tried to
pass ordinances that would authorize a denial,” thus exhibiting “bad faith and an
avoidance of duty, such that estoppel should apply”); Dade County v. Jason, 278
So. 2d 311, 311-12 (Fla. Dist. Ct. App. 1973) (per curiam) (ordering the County to
grant the plaintiffs a building permit that the County had deliberately withheld
until a building moratorium went into effect, because “the County had acted in
34
Bad faith in delaying the issuance of the permit and, therefore, the applicant
should have been entitled to a permit”).
In each of these cases, the defendant municipality changed the law in a last-
ditch effort to avoid granting a permit or license to a plaintiff. Whether this took
the form of an “emergency ordinance” passed while the application was pending
(Aiken), or a change in the law after a writ had already been issued by a court
(Harris), or selective and erroneous enforcement of an arguably unconstitutional
provision of the law (Margate), or, finally, deliberate delay of the issuance of a
permit until after a building moratorium went into effect (Jason), the government’s
behavior was entirely different from the City of Sunrise’s change in the law, which
was made promptly, after the City received a single letter and before it was sued.
Conversely, in the absence of bad faith or reasonable reliance on existing
law, Florida’s courts have consistently refused to find a vested right. See, e.g.,
Davidson v. City of Coral Gables, 119 So. 2d 704, 708 (Fla. Dist. Ct. App. 1960)
(per curiam) (citing Harris and Aiken as having held that a repealed liquor
licensing law, rather than a new one, can apply to a plaintiff only “when the
officials or governmental body to whom an application for a liquor license has
been made, and against whom suit is filed to enforce its issuance, act arbitrarily to
avoid their duty,” and that “it is a question for the court as to whether the
35
subsequently enacted limitations or regulations were made arbitrarily or in bad
faith”); City of Miami v. State ex rel. Ergene, Inc., 132 So. 2d 474, 476 (Fla. Dist.
Ct. App. 1961) (per curiam) (in a zoning variance case, denying that the plaintiff
had vested rights in a zoning variance allowing it to construct a gas station
because “[w]e do not view the circumstances in this case as constituting arbitrary
or bad faith acts on behalf of the city as was the circumstance in [Aiken, Harris,
and Broach]”); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So. 2d 428,
429-31 (Fla. 1954) (denying equitable estoppel in previous zoning regulations
even though the plaintiff had spent $250,000 in reliance on them, because the City
had no knowledge of these expenditures when it changed the law); City of Miami
Beach v. Jonathon Corp., 238 So. 2d 516, 519-20 (Fla. Dist. Ct. App. 1970)
(rejecting the claim that a vested right in a permit was created at the moment of
application regardless of later acts by the City, in the absence of a showing of bad
faith or arbitrariness); City of Boynton Beach v. Carroll, 272 So. 2d 171, 172-73
(Fla. Dist. Ct. App. 1973) (when the plaintiff tried to rush through a building
permit application before the City’s new zoning ordinance took effect, knowing
that the ordinance would forbid him from building the desired seven-story
retirement home, the court said that “Florida law since 1945 has been clear that
possession of a building permit does not create a vested right, and that a permit
36
may be revoked where the zoning law has been amended subsequent to the
issuance of the permit in the absence of . . . equitable estoppel”); Smith v. City of
Clearwater, 383 So. 2d 681, 688-89 (Fla. Dist. Ct. App. 1980) (noting an interplay
between “those situations in which the city is estopped because the property owner
has spent large sums in reliance on the city’s original position and those in which
the city refuses to issue a permit for a use which is permissible under existing
zoning,” and denying the plaintiffs a right to their development plans because they
previously had notice of the impending changes).
3. Application of Florida Law to This Case
Simply put, an extensive canvass of Florida’s law establishes this: a party
will be found to have a vested right in a permit or in a similar entitlement only if
(1) it has incurred substantial expense in reasonable reliance on existing law; or
(2) the city has passed a subsequent ordinance in a bad faith effort to prevent the
property owner from obtaining a permit. Neither circumstance is present here.
First, there was clearly no equitable estoppel, because Coral Springs
incurred no significant expenses in reliance on the previous law -- indeed, under
its lease, no money is paid to Sawgrass Ford until the billboard gets built. Coral
37
Springs does not even try to argue that equitable estoppel is present, and we see
nothing in the record that would suggest otherwise.
Second, the City has not displayed bad faith. Facing an objection to its Sign
Code, the City did exactly what it should have done: it amended the Code to
eliminate constitutionally questionable provisions. It did so not for the purpose of
resolving pending litigation, because no litigation existed at the time the Amended
Sign Code was passed. And the change in law did not arbitrarily single out Coral
Springs in the way that the defendants in Aiken, Harris, Margate, and Jason did.
In fact, the situation here is nearly the opposite, because in passing the Amended
Sign Code, the City did not make any changes to the provisions of the old Sign
Code that actually caused the denial of Coral Springs’ application. The Amended
Sign Code prohibits signs that are more than 85 square feet, 8.5 feet tall, off-
premise commercial signs, and so forth -- just as the old Sign Code did. Indeed, as
we see it, the allegedly unconstitutional aspects of the old Sign Code had nothing
whatever to do with the rejection of the plaintiff’s application.
Notably, in response to the passage of the Amended Sign Code, Coral
Springs did not reapply for a sign permit -- indeed, it knew it could not (at least for
the sign it wanted to erect), because the provisions of the Sign Code that caused
the denial of its initial application were constitutionally sound, and were retained
38
in the Amended Sign Code. Instead, Coral Springs chose to sue in order to force
the approval of a sign that it knew was impermissible under various provisions of
both versions of the Sign Code. No Florida court has ever held or even hinted that
under circumstances like these a vested right could be created.
The district court, agreeing with Coral Springs’ claim of a vested right,
relied on our unpublished opinion in National Advertising Company v. City of Ft.
Lauderdale, 8 F.3d 36 (11th Cir. Oct. 26, 1993) (per curiam) (table) [hereinafter
“National II”], a later appeal of the case at issue in National I. In that case, a sign
company had filed suit arguing that Fort Lauderdale’s sign code contained
unconstitutional provisions, that those provisions were not severable from the
constitutional provisions, and therefore that the code was unconstitutional as a
whole. Six weeks after the complaint was filed in federal district court, the City
amended its code and eliminated the allegedly unconstitutional provisions in an
effort designed to moot the lawsuit.
We ruled the suit was not moot in light of the voluntary cessation doctrine.
See National I. After returning to district court, the sign company won on the
merits of the case, demonstrating that the old sign code was unconstitutional as a
whole. Nevertheless, the district court ruled that the company had no vested right
to its original permit. On appeal, a panel of this Court reversed, holding that
39
“[w]hen an application for a permit satisfies all existing and pending laws, the
permit must then issue: a new law passed after the application was filed has no
effect on the matter of issuance.” Slip op. at 6. We added that [t]he rule is the
same when the existing law purportedly prohibits the desired use, but the existing
law is later declared unconstitutional. Id. (citing Harris, 31 So. 2d at 266;
Margate, 546 So. 2d at 1094). The Court distinguished between two situations,
one where reliance is required to create a right, and one where it is not required.
“Absent reliance, a landowner generally has no right to existing zoning; the
municipality can apply a new law to deny a use that was legal under an old law,
unless the owner has relied (usually by spending money) on the old law.” Id. at 7
(citing Cone, 365 So. 2d at 739). “But when a municipality denies an application
for a building permit, the applicant is deprived of a fair chance to rely on existing
law. Where the municipality has wrongfully denied an application -- thus
wrongfully denying the applicant the right to rely on the law then existing --
requiring a showing of reliance would allow the municipality to gain an advantage
from its own wrongful act.” Id. at 7-8 (citing Smith, 383 So. 2d at 688). We
therefore granted the sign company a permit.
National II, however, involved a very different set of circumstances. As we
have noted, the City of Fort Lauderdale did not amend its sign ordinance until six
40
weeks after it had been sued. The next day, it moved for dismissal, making plain
its reason for the belated change in the challenged ordinance. This sequence of
actions indicated a lack of good faith, and it thus came as no surprise that we held
the plaintiff possessed a vested right in the sign permit. National II thus fit into
the pattern of state cases such as Harris, where the municipality hastily changed
the law at the last minute to defend itself, well after a legal challenge had been
brought.
Again, by contrast, in this case, the City promptly changed the Sign Code
after receiving a single letter from plaintiff’s counsel, before it had been sued by
Coral Springs or, for that matter, by anyone else. And as we have noted, there is
absolutely no reason to believe that the City has any intention of resurrecting the
old Sign Code. Nor is there any hint that the amendments to the Sign Code were
prompted by a desire to single out Coral Springs unfairly, inasmuch as the sign it
wanted to put up was undoubtedly impermissible under both the old and the
Amended Sign Code, and the reasons the old Sign Code may have been
unconstitutional were wholly unrelated to the reasons the permit application was
41
rejected. In short, unlike in National II, we can discern no bad faith or arbitrary
behavior on the part of the City.13
Our holding is also compelled because we are sitting as a court of equity. It
is a bedrock principle of courts of equity that they may impose the substantive
remedy of injunctive relief only when fundamental fairness and justice demand it.
See 27A Am. Jur. 2d Equity § 110 (2003) (“The court [of equity] will grant relief
only when fairness and good conscience demand it.”). Indeed, courts of equity are
loath to allow loopholes, technicalities, or game-playing to dictate results when
those results would violate basic notions of equity and fair play. “While a court of
equity endeavors to promote and enforce justice, good faith, uprightness, fairness,
and conscientiousness on the part of the parties who occupy a defensive position
13
In our unpublished National II opinion, we cited the District Court of Appeal’s decision
in Smith v. City of Clearwater for the proposition that reliance was not required for a court to
find that an applicant has a right to a permit notwithstanding subsequent changes in the law. As
we read it, however, the Smith court did not say that vested rights are always created in
applications for permits. Rather, Smith said that vested rights may be created in the absence of
reliance only under very specific circumstances. 383 So. 2d at 688. And in fact, the Smith
court’s attempt to delineate the circumstances in which injunctive relief should be granted itself
fell short of fully explicating the state of Florida law, because it did not consider the clear and
extensive pattern of Florida cases that have found vested rights or their equivalent in non-reliance
cases only when there was evidence of bad faith by the municipality, and an arbitrary attempt to
single out the applicant. We therefore reject the suggestion that vested rights may be created
under Florida law in the absence of equitable estoppel, detrimental reliance, or bad faith. To the
extent some district court opinions have found otherwise, see Fla. Outdoor Adver., LLC v.
City of Boynton Beach, 182 F. Supp. 2d 1201, 1209 (S.D. Fla. 2001); Wilton
Manors St. Sys. v. City of Wilton Manors, 2000 WL 33912332, at *5 (S.D. Fla.
2000), we conclude that they have misapprehended Florida law on this subject.
42
in judicial controversies, it no less stringently demands the same from the litigant
parties who come before it as plaintiffs or actors in such controversies.” 2
Pomeroy, Equity Jurisprudence § 398, at 93 (5th ed.).
As the United States Supreme Court explained long ago: “It is a principle in
chancery, that he who asks relief must have acted in good faith. The equitable
powers of this court can never be exerted in behalf of one who has acted
fraudulently or who by deceit or any unfair means has gained an advantage. To aid
a party in such a case would make this court the abetter of iniquity.” Bein v.
Heath, 47 U.S. 228, 247, 6 How. 228, 247, 12 L. Ed. 416 (1848). Or as the
Supreme Court later framed the idea, “[c]ourts of equity frequently decline to
interfere on behalf of a complainant whose attitude is unconscientious in respect
of the matter concerning which it seeks relief.” Nat’l Fire Ins. Co. of Hartford v.
Thompson, 281 U.S. 331, 338, 50 S. Ct. 288, 291 (Mem.), 74 L. Ed. 881 (1930)
(citing Deweese v. Reinhard, 165 U. S. 386, 390, 17 S. Ct. 340, 41 L. Ed. 757
(1897). As one Florida Supreme Court justice put it, “[o]ne of the most
elementary and fundamental concepts of equity jurisprudence and a universal rule
which affects the entire system of equity jurisprudence is the maxim that ‘He who
comes into equity must come with clean hands.’ This principle is founded upon
43
conscience and good faith.” Ryan v. Ryan, 277 So. 2d 266, 276 (Fla. 1973)
(Roberts, J., dissenting).
In this case, we have found that the defendant City proceeded in good faith,
promptly addressing and repealing the offending statute -- before any suit had
been filed, and without having singled out any plaintiff for special treatment. And
the plaintiff Coral Springs never applied for a permit against the backdrop of a
new Sign Code which had essentially eliminated the unconstitutional provisions.
Instead, it apparently saw an opportunity to take advantage of a retroactive
application of the law to secure a right to build a sign that plainly violated the new
ordinance in the same way it did the old one. If fundamental notions of equity
require us to order the City to grant Coral Springs the sign permit it seeks, those
reasons escape us -- and we can divine no sign that the Florida courts would hold
otherwise. Indeed, even the district court, which ruled in favor of Coral Springs,
noted that “other courts have expressed concerns about such lawsuits as this one in
which a plaintiff submits an application for a permit to build a billboard that will
assuredly be denied because it does not comply with the ordinance at issue, only to
challenge the constitutionality of the ordinance as a whole.” Coral Springs, 287 F.
Supp. 2d at 1319; see also Fla. Outdoor Adver. v. City of Boynton Beach, 182 F.
Supp. 2d at 1206 (calling “unsettling” the “strategic” use of the Supreme Court’s
44
commercial speech doctrine in this manner); Granite State Outdoor Adver., Inc. v.
City of Clearwater, Fla., 213 F. Supp. 2d 1312, 1333 (M.D. Fla. 2002), aff’d in
part & rev’d in part on other grounds, 351 F.3d 1112 (11th Cir. 2003) (noting that
“[m]any courts, like this one, and many commentators, are concerned that local
governments have been placed in a tenuous and near impossible position in
drafting a constitutional or content-neutral sign ordinance”); Fla. Outdoor Adver.,
LLC. v. City of Boca Raton, Florida, 266 F. Supp. 2d 1376 (S.D. Fla. 2003).
The argument that a sign company somehow possesses an irrevocable
vested right in a sign permit whenever it applies for one under an illegal
ordinance, even if the law is fixed immediately thereafter, may lead to an
anomalous result if taken to its logical conclusion. Thus, according to this
reasoning, because the original Sign Code was unconstitutional, virtually any
application to build a sign before the passage of the Amended Sign Code would
have created a vested right. This would mean that if the petitioner had applied for
a permit to build a sign that was not just 672 square feet (itself almost eight
times larger than the permitted size of any sign under either the old or the
Amended Sign Codes), but even one that was a thousand or five thousand or ten
thousand square feet, it would be entitled to a permit long after a constitutional
ordinance prohibiting such signs had been duly enacted. An application for
45
literally any sign of any size, shape, or height would have created a vested right in
a permit, and nothing that City did after the application was submitted could have
taken it away. Absolutely nothing in Florida in the case law gives any hint that
vested rights can be created so easily.14
C. Conclusion on Mootness
We see no reasonable possibility that the City will reenact the old Sign
Code. Furthermore, Coral Springs has incurred precious little expense in
detrimental reliance on the City’s Sign Code, and the City has exhibited none of
14
In Florida Outdoor Advertising, LLC. v. City of Boca Raton, Florida, 266 F. Supp. 2d
1376 (S.D. Fla. 2003), the district court reached a similar result. The facts were similar to those
before us: “[t]he now familiar strategy is to apply for a permit for erection of a billboard knowing
full well that the permit will be denied under the city’s existing sign ordinance but also aware
that the ordinance is subject to legal attack.” Id. at 1379. The court went on to explain that “the
case is really about the use of the concept of vested rights to create a window of opportunity to
build a large . . . and valuable billboard which would not be approved under the old or the new
ordinance.” Id. (emphasis added). Believing that the plaintiff was wrongly trying to take
advantage of a technicality in the law, the City fought fire with fire and found a technicality of its
own, pointing out that the plaintiff’s application for a permit had not strictly complied with the
old sign ordinance’s notarizing requirements. See id. The court agreed and ruled in favor of the
City, in large part because the equities of the case weighed strongly in favor of that result: “if
equity is to be invoked, and the Eleventh Circuit’s decision in [National II] is premised on
notions of fairness and equity, these consideration [sic] cut against Florida Outdoor. Particularly
where the city’s denial of the permit was not based upon the deficiencies of the ordinance subject
to challenge and where the anticipated denial was part of a strategy to construct a nonconforming
sign, it does not seem unfair to expect Florida Outdoor to abide by other requirements of law.”
Id. at 1381 (citation omitted).
46
the bad faith or arbitrary behavior present in every Florida case where its courts
have found a vested right in the absence of detrimental reliance. Given their past
rulings -- and the obvious implications of a contrary result -- it seems highly
unlikely that Florida’s courts would find that Coral Springs acquired a vested right
under the circumstances of this case, and we can see no reason to do so.
Accordingly, we do not see how the plaintiff may rely on either the doctrine of
voluntary cessation or the acquisition of a vested right to convert a moot case into
a justiciable one.
III
Having found that the City has no intention of reenacting the Sign Code and
that Coral Springs possesses no vested right in a sign permit, the case still may not
be moot if the Amended Sign Code contains the same constitutional defects as its
predecessor. “[A] superseding statute or regulation moots a case only to the extent
that it removes challenged features of the prior law. To the extent that those
features remain in place, and changes in the law have not so fundamentally altered
the statutory framework as to render the original controversy a mere abstraction,
the case is not moot.” Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th
47
Cir. 1992). Thus, if the Amended Sign Code contains the same unconstitutional
provisions as its predecessor, this case may not be moot.
The Amended Sign Code contains some of the same provisions as the old
Sign Code that Coral Springs has alleged violate the First Amendment by: (1)
favoring commercial speech over noncommercial speech;15 and (2) favoring
certain types of noncommercial speech over other kinds of noncommercial
speech.16 However, after careful review of the Amended Sign Code and the
relevant law, we find that the Code does not, in fact, favor commercial speech over
noncommercial speech. Moreover, some of the provisions that allegedly favor
certain kinds of noncommercial speech over others are not in the Amended Sign
Code and therefore the challenge to them is moot. Other challenged provisions are
in the Amended Sign Code; however, we are satisfied that they are not related to,
and are fully severable from, the provisions of the Code that are actually
responsible for the denial of Coral Springs’ application for a sign permit, and
15
See Amended Sign Code § 16-248 (“The following signs are prohibited anywhere in the
city: . . . . (5) Off-premises signs . . . .”).
16
See Amended Sign Code § 16-248(2)-(5) (exempting time-and-temperature signs,
temporary grand opening signs, special event signs, and temporary project signs from general
prohibitions on signs); Id. § 16-253 (saying that “[o]nly the following temporary signs are
permitted”: grand opening banner signs, model signs, political signs, real estate signs, contractor
signs, garage sale signs, project signs, and roadside memorial signs); Id. § 16-261 (saying that
“[a] permit shall not be required for” certain kinds of signs, including, among others, “real estate
signs,” “warning or notice-type signs,” and “political signs”).
48
therefore need not be reviewed because doing so would have utterly no impact on
the outcome of this case.
A. Favoring Commercial Over Noncommercial Speech
First, Coral Springs argues that the Sign Code unconstitutionally favored
commercial speech over noncommercial speech by prohibiting off-site commercial
signs. Specifically, the old Sign Code prohibited “[o]ff-premises commercial
signs or billboards.” § 16-248(a)(6) (emphasis added). Section 16-248(5) of the
Amended Sign Code likewise prohibits “[o]ff-premises signs,” which are
specifically defined as being “[a]ny sign advertising a commercial establishment,
activity, product, service or entertainment, which is sold, produced, manufactured,
available or furnished at a place other than on the property on which the sign is
located,” § 16-247(b)(26) (emphasis added). Coral Springs suggests that these
provisions somehow discriminate against non-commercial speech, even though the
restrictions apply only to commercial speech. This claim is based on a
mischaracterization of the off-site ban as applying to noncommercial speech, when
it plainly does not.
49
In Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69
L. Ed. 2d 800 (1981), the Supreme Court struck down certain aspects of a city’s
billboard ordinance favoring commercial over noncommercial speech and certain
kinds of noncommercial speech over others, but also permitted cities to distinguish
reasonably between onsite and offsite commercial advertising:
[W]hether onsite advertising is permitted or not, the prohibition of
offsite advertising is directly related to the stated objectives of traffic
safety and esthetics. This is not altered by the fact that the ordinance
is underinclusive because it permits onsite advertising. Second, the
city may believe that offsite advertising, with its periodically
changing content, presents a more acute problem than does onsite
advertising. Third, San Diego has obviously chosen to value one
kind of commercial speech -- onsite advertising -- more than another
kind of commercial speech -- offsite advertising.
Id. at 511-12, 101 S. Ct. at 2894-95 (citation omitted). These words are exactly on
point in this case, where the City’s suspect provision distinguishes between on-site
commercial and off-site commercial advertising, but makes no reference to
noncommercial speech. Moreover, the Amended Sign Code expressly allows
noncommercial messages at least as much leeway as commercial ones:
“Notwithstanding any provisions of this article to the contrary, to the extent that
this article permits a sign containing commercial copy, it shall permit a non-
commercial sign to the same extent.” Amended Sign Code § 16-247(a).
50
If the explicit wording of this ordinance were not enough to make clear that
the City’s bans on offsite signs do not cover noncommercial speech, this Circuit
has held that noncommercial messages are inherently onsite. Our decision in
Southlake Property Associates, Ltd. v. City of Morrow, Georgia, 112 F.3d 1114
(11th Cir. 1997), is on point. In that case, we evaluated a challenge to a sign
ordinance that prohibited billboards, which it defined as any “sign which
advertises a commodity, product, service, activity or any other person, place, or
thing, which is not located, found or sold on the premises upon which such sign is
located.” Id. at 1117. In determining the extent to which this regulation
prohibited noncommercial messages, it became necessary to know the actual “site”
of noncommercial speech:
The ordinance prohibits signs which seek to attract attention to any
person, place, subject, or thing not located on the premises where the
person, place, subject, or thing is found. Noncommercial speech
usually expresses an idea, an aim, an aspiration, a purpose, or a
viewpoint. Where is such an idea located? What is the site upon
which the aspiration is found?
Id. at 1118. We concluded that a noncommercial message is inherently onsite,
whatever its location. “An idea, unlike a product, may be viewed as located
wherever the idea is expressed, i.e., wherever the speaker is located. Under this
alternative view, all noncommercial speech is onsite. A sign bearing a
51
noncommercial message is onsite wherever the speaker places it.” Id. (footnote
omitted). We thus agreed with the City of Morrow’s own interpretation of its
ordinance and concluded that “[t]he definition of billboard as an offsite
advertising sign does not include noncommercial speech as such speech is always
onsite.” Id. at 1119.
Coral Springs nevertheless insists that the Sign Code treated onsite signs
more favorably than offsite signs, eliding the fact that, according to the law of this
Circuit, noncommercial messages are by definition onsite signs and therefore
certainly not treated unfavorably compared with commercial signs. We thus are
unpersuaded by Coral Springs’ argument that the Sign Code -- in either its
original or Amended form -- impermissibly favors commercial over
noncommercial speech.17
B. Content Discrimination Among Types of Noncommercial Speech
17
Contrary to the Coral Springs’ claims, our recent decision in Café Erotica of Florida,
Inc. v. St. Johns County, 360 F.3d 1274 (11th Cir. 2004), is consistent with this analysis. In that
case, we struck down the St. Johns County sign ordinance that we interpreted as effectively
limiting the maximum size of political messages to roughly one-seventeenth that of commercial
ones. See id. at 1280-81, 1291-92. By contrast, the Amended Sign Code in the City of Sunrise
explicitly allows the same expressive rights for noncommercial signs, including political signs, as
it does for commercial signs. Amended Sign Code § 16-247(a).
52
Coral Springs’ second pertinent argument is that the Sign Code
impermissibly favors some forms of noncommercial speech over others.18 Again,
we are unpersuaded. In Metromedia, the Supreme Court ruled that cities are
limited in their authority to distinguish among various types of noncommercial
speech. 453 U.S. at 515, 101 S. Ct. at 2896 (“With respect to noncommercial
speech, the city may not choose the appropriate subjects for public discourse: ‘To
allow a government the choice of permissible subjects for public debate would be
to allow that government control over the search for political truth.’” (quoting
Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 538, 100 S. Ct. 2326,
2333, 65 L. Ed. 2d 319 (1980))).
Coral Springs argues that the Sign Code violated this prohibition in a
number of ways, including: (1) permitting public interest signs but not other
noncommercial signs on public property; (2) permitting temporary political and
roadside memorial signs but not other temporary noncommercial signs; (3)
permitting temporary “special event” signs but not temporary signs for other
18
See, e.g., Amended Sign Code § 16-248(2)-(5) (exempting time-and-temperature signs,
temporary grand opening signs, special event signs, and temporary project signs from general
prohibitions on signs); Id. § 16-253 (saying that “[o]nly the following temporary signs are
permitted”: grand opening banner signs, model signs, political signs, real estate signs, contractor
signs, garage sale signs, project signs, and roadside memorial signs); Id. § 16-261 (saying that
“[a] permit shall not be required for” certain kinds of signs, including, among others, “real estate
signs,” “warning or notice-type signs,” and “political signs”).
53
noncommercial events; (4) prohibiting animated signs, except for those displaying
the time or temperature; (5) permitting political campaign signs connected to
elections but prohibiting political signs unrelated to elections; and (6) exempting
certain noncommercial signs such as election signs from the permitting process
required of other noncommercial signs.
In addition, Coral Springs says that the old Sign Code violated the First
Amendment by lacking procedural safeguards necessary for a speech licensing
plan. It allegedly did so in two ways. First, Coral Springs claims, the Sign Code
gave “unbridled discretion” to government officials considering permit
applications, by failing to name specific criteria for approving or denying
applications, and by failing to include any mechanism for prompt judicial review
of application denials. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26,
110 S. Ct. 596, 605, 107 L. Ed. 2d 603 (1990); Freedman v. Maryland, 380 U.S.
51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Second, the Sign Code imposed no
specific time period by which the decision maker must approve or deny
applications.
Even if any of these aspects of the old Sign Code were unconstitutional, the
challenge is moot if they were not retained in the Amended Sign Code. Several of
these challenges are, in fact, moot because the Amended Sign Code remedied the
54
alleged defects. First, the parts of the old Sign Code that permitted public interest
signs but no other noncommercial signs have been amended. The relevant
provisions of the old Sign Code were embodied in § 16-248(a)(12), which
prohibited “[t]emporary and permanent signs, other than public interest signs,
places [sic] on public property”; and § 16-250, which defined and delineated the
proper uses of “Public interest signs.” Notably, however, the Amended Sign Code
eliminated the exemption for public interest signs. The provision now simply
prohibits “[t]emporary and permanent signs, placed on any public property.”
Amended Sign Code § 16-248(11). Moreover, § 16-250 of the Sign Code was
repealed in its entirety. Plainly, then, the challenge to these provisions has been
rendered moot by the change in the law.
We add that plaintiff’s claim that election-based political signs are favored
over other political signs is also moot. The old Sign Code said that “Political
Signs” could be displayed “60 days prior to election; up to 14 days after the
election,” and was silent on political signs not connected with an election. Sign
Code § 16-253. But the Amended Sign Code changed the rule, imposing the
aforementioned time limits only “[i]f the copy is related to an election.” Amended
Sign Code § 16-253.
55
Also now moot is the view that the old Sign Code lacked procedural
safeguards. The Amended Sign Code does not grant unbridled discretion to
officials reviewing applications for sign permits. The Amended Code specifically
provides that “[t]he department shall approve or deny the sign permit based on
whether it complies with the requirements of this article.” § 16-261. The decision
makers are thus bound by the specific provisions of the statute’s regulations in
rendering their decisions. In addition, the Amended Sign Code provides for timely
judicial review of denials of permits,19 and it imposes a specific time limit by
which permit applications must be approved or denied.20
Coral Springs’ claim that the City’s sign ordinance still impermissibly
discriminates among certain types of speech by exempting some kinds of
noncommercial signs -- such as political signs -- from the permitting requirements
imposed on most signs, is not moot, because this exemption was retained in the
19
The Amended Sign Code says:
The applicant may file a written notice of appeal to the city commission
within fifteen (15) days after the receipt of the department’s written notice.
The city commission shall hear the appeal and render a decision within
thirty (30) days after the date of receiving the written notice of appeal. If
the city commission does not grant the appeal, then the applicant may seek
relief in the Circuit Court for Broward County, as provided by law.
Amended Sign Code § 16-261.
20
“The department shall approve or deny the sign permit within thirty (30) days after
receipt of the application.” Id.
56
Amended Sign Code. See Amended Sign Code § 16-261. This challenge,
however, fails on the merits. A panel of this Court explicitly rejected a nearly
identical challenge in Messer v. City of Douglasville, Georgia, 975 F.2d 1505
(11th Cir. 1992). Messer attacked a sign ordinance exempting five kinds of signs
from permitting requirements.21 We explicitly distinguished between exemptions
from permitting requirements and exemptions from outright prohibitions such as
those in Metromedia: “[T]he Douglasville exemptions are not exemptions from a
general ban of all off-premise billboards, but from permitting requirements and
permits fees. Messer has not challenged the permit process as an unconstitutional
restriction on speech. Thus, the Douglasville sign ordinance stands on a different
footing from the complete bans on speech in [Metromedia and National
Advertising Co. v. Orange, 861 F.2d 246 (9th Cir. 1988)].” Id. at 1513. The same
distinction applies to the permitting exemptions in the old Sign Code and the
Amended Sign Code. Simply put, a permit requirement is wholly different from a
21
“Section 26-17 of the Douglasville sign code exempts five types of signs from
permitting requirements and/or permit fees: 1) one wall sign per building side announcing the
business and attached to the side of the building, 2) one real estate ‘for sale’ sign per property
frontage, 3) one bulletin board located on religious, public, charitable or educational premises, 4)
one construction identification sign, and 5) directional traffic signs containing no
advertisements.” Id. at 1511.
57
ban, and exemptions from the former are correspondingly different from -- and far
less suspect than -- exemptions from the latter.22
C. Severability
Even though still other parts of the Amended Sign Code may be
unconstitutional,23 we need not -- and do not -- consider the merits of the challenge
to their validity since any decision on the merits can have no bearing on the case
before us. It is by now clear that if challenged parts of the Amended Sign Code
were severable from the parts of the Code that actually caused the denial of the
permit application, there would be no point in evaluating the plaintiff’s arguments
as to those provisions. Indeed, if we were to evaluate the validity of certain
22
The permitting exemption for political signs is particularly important for the protection
of political speech, which enjoys the highest level of First Amendment protection. See, e.g.,
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47, 115 S. Ct. 1511, 1518-19, 131 L.
Ed. 2d 426 (1995); Buckley v. Valeo, 424 U.S. 1, 14, 96 S. Ct. 612, 632, 46 L. Ed. 2d 659
(1976); Roth v. United States, 354 U.S. 476, 484, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498 (1957).
Exempting political signs, particularly those whose relevance is subject to the time pressures of
impending election, from permitting requirements is not only constitutionally permissible, but
may well be constitutionally required. See Nat’l Adver. Co. v. City of Miami, 287 F. Supp. 2d
1349, 1375-76 (S.D. Fla. 2003).
23
See, e.g., Amended Sign Code § 16-248(2)-(5) (exempting time-and-temperature signs,
temporary grand opening signs, special event signs, and temporary project signs from general
prohibitions on signs); Id. § 16-253 (saying that “[o]nly the following temporary signs are
permitted”: grand opening banner signs, model signs, political signs, real estate signs, contractor
signs, garage sale signs, project signs, and roadside memorial signs).
58
provisions of the Amended Sign Code, knowing that the result of this inquiry
could have no effect on the result in this case, our pronouncements would be
essentially advisory in nature.
Severability of a local ordinance is a question of state law. City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S. Ct. 2138, 2152, 100
L. Ed. 2d 771 (1988). And Florida law clearly favors (where possible) severance
of the invalid portions of a law from the valid ones. According to the Florida
Supreme Court, “[s]everability is a judicial doctrine recognizing the obligation of
the judiciary to uphold the constitutionality of legislative enactments where it is
possible to strike only the unconstitutional portions.” Ray v. Mortham, 742 So. 2d
1276, 1280 (Fla. 1999) (citing State v. Calhoun County, 126 Fla. 376, 383 (1936)).
The doctrine of severability is “derived from the respect of the judiciary for the
separation of powers, and is ‘designed to show great deference to the legislative
prerogative to enact laws.’” Id. (quoting Schmitt v. State, 590 So. 2d 404, 415
(Fla. 1991)).
Severability is not possible, however, when “the taint of an illegal provision
has infected the entire enactment, requiring the whole unit to fail.” Schmitt, 590
So. 2d at 414. Whether a statute is severable is determined by “its relation to the
overall legislative intent of the statute of which it is a part, and whether the statute,
59
less the invalid provisions, can still accomplish this intent.” Martinez v. Scanlan,
582 So. 2d 1167, 1173 (Fla. 1991) (quoting E. Air Lines, Inc. v. Dep’t of Revenue,
455 So. 2d 311, 317 (Fla. 1984)). The doctrine of severability, thus, “recognizes
that federal courts have an affirmative duty to preserve the validity of legislative
enactments when it is at all possible to do so.” Fla. Outdoor Adver., 182 F. Supp.
2d at 1209 (citing Ray, 742 So. 2d at 1280).
The Florida Supreme Court has suggested this test for discerning
severability in Smith v. Department of Insurance:
When a part of a statute is declared unconstitutional the remainder of
the act will be permitted to stand provided: (1) the unconstitutional
provisions can be separated from the remaining valid provisions, (2)
the legislative purpose expressed in the valid provisions can be
accomplished independently of those which are void, (3) the good
and the bad features are not so inseparable in substance that it can be
said that the Legislature would have passed the one without the other
and, (4) an act complete in itself remains after the invalid provisions
are stricken.
507 So. 2d 1080, 1089 (quoting Cramp v. Bd. of Pub. Instruction, 137 So. 2d 828,
830 (Fla. 1962)). According to Florida law, then, the unconstitutional part of a
challenged statute should be excised, leaving the rest intact and in force, when
doing so does not defeat the purpose of the statute and leaves in place a law that is
complete.
60
We are fully satisfied that the purpose of the Amended Sign Code is not
defeated by the removal of the purportedly unconstitutional provisions (such as the
exemptions in § 16-248(2)-(5) and § 16-253), which make up but a small part of
the whole. The Amended Sign Code still makes perfect sense when stripped of its
suspect provisions -- the argument that the grammar of some of the provisions of
the sign Code became nonsensical when stripped of their offensive aspects is
simply incorrect. The allegedly problematic aspects of the Amended Sign Code
can be easily excised without sacrificing either the grammar or structure of the
ordinance, or its overall stated purpose, which is to “create a comprehensive
system of street graphic controls, thereby facilitating clear communication,
reduced traffic or structural hazards, and an enhanced aesthetic appearance of the
city.” § 16-247(a).
The regulatory purpose of the undisputed sections of the Sign Code --
avoiding public eyesores and traffic disruption -- would not be destroyed by the
elimination of the suspect content regulations. Cutting out the problematic parts
of § 16-248 (which exempted certain types of signs from general prohibitions) and
§ 16-253 (which allowed certain types of temporary signs and banned all others)
still leaves in place a comprehensive and coherent system of sign regulation.
Eliminating them does not defeat the ordinance’s purpose, nor does it render the
61
Amended Sign Code as a whole logically or grammatically nonsensical. Nor does
their elimination affect the portions of the Amended Sign Code that are actually
germane and relevant to the City’s rejection of Coral Springs’ application: the
prohibition of permanent off-premises signs, § 16-248(5); the prohibition of pole
signs, § 16-248(6); the regulations on the size, height, and number of nonresident
district permanent signs, § 16-252; the landscaping requirements for signs, § 16-
255; and the approval process for sign permits, § 16-261.
We find it wholly implausible that the City would have preferred no sign
ordinance at all to one that contains all the current parts of the Amended Sign
Code other than the suspect content regulations. And eliminating those portions
does not in any way affect the other parts, which are indisputably designed to
facilitate clear communication, reduce traffic and structural hazards, and enhance
the City’s aesthetic appearance.
The plaintiff has expressed alarm that questionable provisions were
“scattered throughout the Sign Code.” Coral Springs, 287 F. Supp. 2d at 1320.
But in fact, the Florida Supreme Court has expressly allowed for severance of
individual sentences or even phrases when it was possible to do so without
defeating the purpose of the statute as a whole. See, e.g., State v. Williams, 343
62
So. 2d 35, 38 (Fla. 1977); Cramp, 137 So. 2d at 830-31; see also Jones v. Smith,
474 F. Supp. 1160, 1169 (S.D. Fla. 1979) (noting that “[t]he Florida Supreme
Court has stricken a sentence, and even a single phrase, while preserving the
remainder of the statute” (citations omitted)); Granite State Outdoor Adver., Inc. v.
City of Clearwater, 213 F. Supp. 2d 1312, 1326-27 (M.D. Fla. 2002) (striking
down a number of content-based provisions in a city’s sign ordinance but leaving
in place numerous valid provisions of the law); G.K. Ltd. Travel v. City of Lake
Oswego, 2004 WL 817142, at *9 (D. Or., Mar. 29, 2004) (“The stricken portions
of the Sign Code are minor exemptions or exceptions to major portions of the Sign
Code (e.g., regulations governing temporary signs) [and the] remaining parts of
the Sign Code are not dependent on the stricken portions and can be executed
effectively without them.”). We would have no problem doing the same with the
Amended Sign Code.
If these reasons were not sufficient to make clear that parts of the Amended
Sign Code are readily severable, the City’s Land Development Code expressly
provides for the possibility that parts of it might not pass constitutional muster:
Should any provision of this ordinance be declared by a court of
competent jurisdiction to be invalid, the same shall not affect the
validity of the ordinance as a whole, or any part thereof, other than
the part declared to be invalid.
63
Land Dev. Code Art. XVIII, § 16-291. Clearly, then, the City’s expressed
legislative desire is to keep as much of its ordinances as it can. Moreover, Florida
law says that, “[a]lbeit not binding, a legislatively expressed preference for the
severability of voided provisions is persuasive.” Moreau v. Lewis, 648 So. 2d
124, 127 (Fla. 1995) (citing State v. Champe, 373 So. 2d 874, 880 (Fla. 1978)).
This holding, and more broadly the doctrine of severability, weighs against the
district court’s finding that the challenged provisions were not severable from the
rest of the Sign Code. To rule otherwise would seriously infringe on the notion of
legislative autonomy and ignore Florida’s doctrine of severability.
Finally, even if we were to rule the remaining challenged portions to be
unconstitutional, it would not make a whit of difference to Coral Springs; it would
not have a right to a sign permit whether these provisions of the Amended Sign
Code are valid or not. We thus have no reason to decide on their constitutionality
because doing so would have no impact on the plaintiff’s interests. Cf. Crowell v.
Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296-97, 76 L. Ed. 598 (1932).
We confronted a similar situation in Hershey v. City of Clearwater, 834
F.2d 937 (11th Cir. 1987), a civil rights action in Florida where the plaintiff
challenged a city’s criminal ordinance that made it illegal “to lodge or sleep in” a
64
motor vehicle parked on the street. Id. at 939. Hershey said that the prohibition
on sleeping was unconstitutionally overbroad. But we decided that because (1) the
“or sleep” provision of the law was severable from the rest of it; and (2) there was
still probable cause to arrest Hershey for “lodg[ing]” in his car, we need not and
did not pass on the constitutionality of the “or sleep” clause. Id. at 939-40 & n.5
(“[W]e do not reach the question of whether the ordinance as written -- that is,
including the prohibition against sleeping -- is unconstitutional . . . .”). In this
signage case, there is even less reason to decide on the constitutionality of the
challenged provisions. In Hershey, at least, the challenged part of the law was
among the reasons for the plaintiff’s arrest. Here, by contrast, none of the content-
based provisions whose constitutionality Coral Springs challenged have anything
at all to do with the rejection of its permit application. What we face today is a
statute from which the constitutionally sound wheat can readily be separated from
the constitutionally suspect chaff, and both state and local law express a clear
preference for doing just that. The possibly unconstitutional provisions of the
Amended Sign Code have no bearing on the mootness of this suit, precisely
because they had nothing to do with the provisions of the law that caused the
65
rejection of the sign permit in the first place, and their removal would do nothing
to affect the latter provisions.
Accordingly, we hold that the challenge to the Sign Code is moot, because
the original Sign Code has been repealed, and there is no reasonable likelihood the
City will reenact the old Sign Code. Moreover, as we read Florida law, Coral
Springs holds no vested right in the sign permit. Finally, portions of the Amended
Sign Code that arguably may be unconstitutional are fully severable from the rest
of the law, including the provisions that led to the rejection of Coral Springs’
application for a sign permit. The constitutionality of these provisions is therefore
of no importance to the resolution of this matter, and accordingly we will not
weigh in on this question today.
REVERSED and REMANDED, with instructions to DISMISS for lack of
subject matter jurisdiction.
66
Coral Springs Street Systems, Inc. v. City of Sunrise
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2004-06-07
Citations: 371 F.3d 1320, 371 F.3d 1320, 371 F.3d 1320
Copy CitationsBoost your productivity today
Delegate legal research to Cetient AI. Ask AI to search, read, and cite cases and statutes.