[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 02-14434 ELEVENTH CIRCUIT
Argument Calendar November 28, 2003
________________________ THOMAS K. KAHN
D. C. Docket No. 01-01663-CV-T-30-MSS CLERK
GRA NITE STA TE O UTD OOR ADV ERT ISIN G, IN C.,
Plaintiff- Appe llant,
versus
CITY OF C LEA RWA TER , FLO RIDA ,
BRIA N AU NGS T, SR ., as an ind ividual
and in h is capacity a s Mayo r of the city ,
WILLIAM H ORNE, as an individual and
in his cap acity as city m anager,
Defen dants-A ppellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 28, 2003)
Before ANDE RSON and BIRCH, Circuit Judges, and PROPS T*, District Judge.
___________________________
*Honorable Robert B. Propst, United States District Judge for the Northern District of
Alabama, sitting by designation.
BIRCH, Circuit Judge:
In this appeal, we must determine whether the district court properly denied
plaintiff-appellant’s, Granite State Outdoor Advertising, Inc. (“Granite State”),
request for injunctive relief against defendant-appellee, the City of Clearwater,
Florida (“the City” or “Clearwater”), after several permit applications to construct
billboards in the City were d enied unde r Article 3, D ivision 18 of the City’s
Comm unity D evelopm ent Cod e (“the Co de”). Th e district co urt ruled that Gra nite
State had standing to challenge the entirety of Article 3, Division 18, but not any
part of A rticle 4, the p art of the C ode that g overns the perm it denial ap peals
process. The district court denied injunctive relief based on its ruling that, after
unconstitutional provisions of Division 18 were severed from the remainder of the
ordinance, the remaining provisions were constitutional. Upon consideration, we
AFF IRM in part, R EVE RSE in part, an d REM AND .
I. BACKGROUND1
Granite State is a Georgia corporation in the business of buying or leasing
land upon which to construct signs and billboards to be used for both commercial
and non-commercial purposes. Granite State has never erected or operated a
billboard , nor has it held a pe rmit in its o wn na me to ere ct a billboa rd. Gra nite
State receives its profits from the sale of billboard permits it obtains from various
1
The facts in this case that we relate are undisputed.
cities and municipalities, some of which have been obtained through litigation
similar to th e case bef ore us.
Clearwater is a political subdivision of the state of Florida and describes
itself as a “resort community on the west coast of the state with more than five
miles of b eaches o n the G ulf of M exico” an d with a tourism -based e conom y.
Clearwater Cmty. Dev . Code § 3-1801 (1999). Clearwater, like many other cities,
has codified various sign regulations to create a comprehensive scheme for
regulatin g, inter alia, the permitting, placement, number, size, height, design,
operatio n, and m aintenan ce of sign s within the City’s b ounda ries. Id. §§ 3-1801 -
1807 ( 2003) . The m any pur poses o f these sig n regula tions inclu de traffic s afety
and aesth etics of the community. Id. § 3-18 02 (19 99).
Granite State entered into lease agreements for a total of eight parcels of real
property located in comme rcial or industrial areas of Clearw ater. Granite S tate’s
goal was to construct and operate one freestanding billboard sign on each parcel of
property. The City denied each of G ranite State’s permit applications because
Granite State app lied to con struct billb oards m ore than four tim es the allow able
height and ten times the allowable area under Clearwater regulations. Rather than
appeal the denial of its permits, Granite State initiated the current litigation in the
Middle District of Florida challenging the constitutionality of Article 3, Division
3
18 and Article 4 of Clearw ater’s Community Dev elopment Code on First
Amendment grounds and requesting injunctive relief.2
Article 3, Division 18 regulates both commercial and non-commercial signs
and dictates when permits are required before certain signs may be erected. In
particular, § 3-1806 regulates “[p]ermitted signs requiring development review.”
Part B.1. of this section deals with non-residential, freestanding signs, and it was
under this part of § 3-1806 that Granite State’s permits were denied. Spe cifically,
subpar ts (c) and (e) of § 3 -1806 .B.1. dicta te the allow able area a nd heig ht,
respectively, of a freestanding sign. Article 4 sets forth the process for obtaining
various levels of permit approval and also d etails the appeals process to contest
denial of a permit.
The district court granted Granite State standing to challenge the entirety of
Article 3, Division 18 on First Amendment grounds, both as applied and under the
overbreadth doctrine, and denied it standing to challenge any part of Article 4 on
either gro und. B ecause w e find the district cou rt misapp lied the ov erbread th
2
Initially, Granite State also requested injunctive relief from Clearwater Mayor, Brian
Aungst, Sr., and its City Manager, William Horne. The district court dismissed Granite State’s
claims against these defendants both in their individual and official capacities. This dismissal
was not challenged on appeal; therefore, the only remaining defendant before us is the City of
Clearwater. Additionally, Granite State has not appealed the district court’s rulings regarding its
claims that the Clearwater ordinance violates the Fourteenth Amendment guarantee of equal
protection and the Fifth Amendment’s Takings Clause. Accordingly, these issues are not before
us: “Issues not clearly raised in the briefs are considered abandoned.” Hardwick v. Crosby, 320
F.3d 1127, 1158 n.140 (11th Cir. 2003) (citations omitted).
4
doctrine , we rev erse the d istrict cour t’s grant o f standin g to Gr anite State to
challenge provisions of the City’s sign ordinance that did not give rise to an injury
in fact (i.e., provisions other than § 3-1806.B.1.), and we remand this case for
further proc eedings con sistent with this op inion. We a ffirm the district cou rt’s
denials of (1) standing to challenge any part of Article 4, (2) injunctive relief, and
(3) attorn ey’s fees.
II. DISCUSSION
A. Standing
Article III, § 2 of the United States Constitution requires that there be a
“case” or “c ontrov ersy” bef ore a fed eral cour t may dec ide a case. U .S. C ONST. art.
III, § 2. See, e.g., Lujan v. Defenders of Wildlife, 504 U .S. 555 , 559-6 0, 112 S . Ct.
2130, 2 136 (1 992). T he cons titutional re quirem ents for a federal co urt to
adjudica te a case are accomp anied by pruden tial require ments. See, e.g., Benne tt
v. Spear, 520 U .S. 154 , 162, 11 7 S. Ct. 1 154, 11 61 (19 97); Lujan, 504 U.S. at 560,
112 S . Ct. at 213 6. Tog ether, thes e constitu tional and pruden tial require ments
form th e doctrin e of stand ing. See, e.g., Benne tt, 520 U.S. at 162, 117 S. Ct. at
1161; Lujan, 504 U .S. at 560 , 112 S . Ct. at 213 6.
The Supreme Court has identified three constitutional requirements for
standing, all of which must be satisfied: (1) an injury in fact, meaning an injury
5
that is concrete and particularized, and actual or imminent, (2) a causal connection
betwee n the inju ry and th e causal co nduct, an d (3) a likelihood that the inju ry will
be redressed by a favorable decision.3 See, e.g., Benne tt, 520 US. at 167, 117 S.
Ct. at 116 3. The C ourt also has iden tified three pruden tial standin g princip les.
See, e.g., Allen v. Wright, 468 U .S. 737 , 751, 10 4 S. Ct. 3 315, 33 24 (19 84).
Relevant here is the principle that a party generally may assert only his or her own
rights an d canno t raise the cla ims of th ird parties not befo re the cou rt. See, e.g., id.
Certain exceptions to the prudential standing requirements have developed
in Sup reme C ourt juris pruden ce. Sign ificant to th is case is the “overbr eadth
doctrine,” an exception that applies in First Amendment cases involving non-
comm ercial spee ch and th at permits third-pa rty standin g whe n a statute is
constitutio nally applied to the litigant but might be uncon stitutiona lly applied to
third par ties not be fore the c ourt. See, e.g., Village of Schaumburg v. Citizens for
a Better Env ’t, 444 U .S. 620 , 634, 10 0 S. Ct. 8 26, 834 -35 (19 80). Th e overb readth
doctrine, however, is not an exception to the constitutional standing requirem ents.
Bischoff v. Osceola County, Fla., 222 F.3d 874, 884 (11th Cir. 2000). A plaintiff
3
Because these requirements are jurisdictional, we must consider them as a threshold
matter, regardless of whether the parties or the court below has done so. Focus on the Family v.
Pinellas Suncoast Transit Auth., __ F.3d __, __ (11th Cir. 2003). Once we determine that the
standing requirements have been met, we review the district court’s denial of injunctive relief
under the abuse of discretion standard, but “we review de novo determinations of law made by
the district court en route.” Kidder, Peabody & Co., Inc. v. Brandt, 131 F.3d 1001, 1003 (11th
Cir. 1997).
6
seeking to make an overbreadth challenge must first show that he has suffered an
injury in f act, as requ ired und er Article III. See, e.g., Virginia v. Am. Booksellers
Ass’n Inc., 484 U .S. 383 , 392-9 3, 108 S . Ct. 636 , 642-4 3 (198 8); Village of
Schaumburg, 444 U .S. at 634 , 100 S . Ct. at 834 ; Bischoff, 222 F.3d at 884.
An “injury in fact” requires the plaintiff to “show that he person ally has
suffered some actual or threatened injury.” Valley Forge Christian College v.
Amer icans U nited for Separa tion of C hurch a nd State , 454 U.S. 464, 472, 102 S.
Ct. 752 , 758 (1 982) (e mphas is added ) (interna l quotatio ns omitte d). Wh ile this
requirement is hard to define precisely, we kn ow that the plaintiff must at least
claim to person ally suffer so me harm . See, e.g., Lujan, 504 U.S. at 562-63, 112 S.
Ct. at 213 7-38; United States v. Students Challenging Regulatory Agency
Procedure (SCRAP), 412 U.S. 669, 686-87, 93 S. Ct. 2405, 2415 (1973).
1. Divisio n 18, § 3 -1806 .B.1. of th e Clearw ater Com munity D evelopm ent
Code
In this case, the only harm that Granite State has personally suffered is under
§ 3-18 06.B.1 . of the C learwate r Com munity D evelopm ent Cod e. It was u nder this
provision that Granite State’s billboard permits were denied. Granite State has
suffered no injury regarding an y other provision in Article 3, Division 18 . Thus,
Granite State has standing to challenge the constitutionality of only § 3-1806.B.1.
7
as applied to it and, under the overbreadth doctrine, as applied to non-commercial
speech.
This pr ovision was co nstitution ally applied to Gran ite State: it so ught to
construct a billboard sign much larger than any sign allowed under the Clearwater
regulations. Moreover, because § 3-1806.B.1. is content-neutral and gives no
discretion to the permitting authority, this provision is not overbroad.4 See, e.g.,
Staub v. Baxley, 355 U .S. 313 , 322, 78 S. Ct. 27 7, 282 ( 1958) ; Horton v. City of
St. Augustine, 272 F.3d 1318, 13 31-32 (1 1th Cir. 200 1). Thus, G ranite State’s
constitutional challenge to § 3-1806.B.1. must fail. This issue is remanded to the
district cou rt for fur ther pro ceeding s consiste nt with th is opinio n.
2. Article 4 of the Clearwater Community Development Code
Granite State does not have standing to challenge Article 4 of the Code
because it has suff ered no injury w ith regard to the City ’s permittin g and ap peals
process. 5 Granite State arg ues that it d id not av ail itself of th e allegedly
4
Granite State has alleged that this provision is a prior restraint on speech because a
permit is required before a billboard may be erected. This section is not a prior restraint,
however, for the same reasons why an overbreadth challenge will fail: it is content-neutral and
gives no discretion to the permitting authority. See, e.g., Staub v. Baxley, 355 U.S. 313, 322, 78
S. Ct. 277, 282 (1958); Horton v. City of St. Augustine, 272 F.3d 1318, 1332 (11th Cir. 2001).
5
We note that while 42 U.S.C. § 1983 forms the statutory jurisdictional basis for Granite
State’s claim, § 1983 is not a substitute for the constitutional standing requirements. Section
1983 allows a plaintiff to bring a claim into court without exhausting state administrative
appeals. See, e.g., Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 518, 102 S. Ct. 2557,
2559-60 (1982). It does not, however, permit a plaintiff to challenge an appeals process that the
8
unconstitutional appeals process because the ordinance does not contain sufficient
proced ural safeg uards. T he specif ic constitu tional def ect, accord ing to G ranite
State, is the fact that City officials have an unlimited amount of time to decide
whether to grant or deny a permit application. Such an argument, by itself, does
not create Article III standing. Granite State has neither alleged nor shown how
the City’s permitting and appeals procedure has injured Granite State. To the
contrary, the record shows that Granite State’s permits were denied within a
reasona ble time: th e same d ay they w ere subm itted. See, e.g., United States v.
Hays, 515 U.S. 737, 74 5, 115 S. Ct. 2431, 24 36 (1995) (holding that only those
voters residing in an allegedly unconstitutionally drawn voting district have
standing to challenge the unconstitutionality of the voting district); Sierra Club v.
Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 1368 (1972) (affirming “[t]he
requirem ent that a p arty seekin g review must alleg e facts sho wing th at he is
himself a dversely affected” ).
We note that this case is distinguishable from a line of Supreme Court cases
involving (but not beginning with) City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750, 755-56, 108 S. Ct. 2138, 2140 (1988), and precedent from our
circuit relying on the same, allowing litigants to facially challenge a licensing
plaintiff chose to forego without showing any actual or potential harm caused by the challenged
appeals process.
9
scheme vesting the decision-maker with unbridled discretion.6 See, e.g., FW/PBS,
Inc. v. City of Dallas, 493 U .S. 215 , 223-2 4, 110 S . Ct. 596 , 603-0 4 (199 0); United
States v. Frandsen, 212 F .3d 123 1, 1235 -36 (11 th Cir. 20 00); Gold Coast Pu bl’ns,
Inc. v. Corrigan, 42 F.3 d 1336 , 1343 ( 11th C ir. 1994 ); Dimmitt v. City of
Clearwater, 985 F .2d 156 5, 1570 (11th C ir. 1993 ); Abramson v. Gonzalez, 949
F.2d 1 567, 15 73 (11 th Cir. 19 92); Sentine l Comm unication s Co. v. W atts, 936
F.2d 1 189, 11 97-98 (11th C ir. 1991 ).
In Lakewood, the city mayor was given unguided discretion to decide which
publishers could place newsracks on public property and where they could be
placed. 486 U.S. at 753-54, 108 S. Ct. at 2142. The Court held that such
unbridled discretion in the permitting official “constituted a prior restraint and may
result in ce nsorsh ip.” Id. at 757, 108 S. Ct. at 2144. The Court then granted the
plaintiff sta nding to facially cha llenge this defect in th e ordina nce. Id. at 755-56,
108 S . Ct. at 214 3.
Similar to the challen ged per mitting sc heme in this case, th e ordina nce in
Lakewood also did not contain time limits within which the Mayor had to decide
wheth er to gran t or to den y a perm it. Id. at 771, 108 S. Ct. at 2151-52. The
6
To the extent any of our prior decisions allowed facial standing (1) without first
determining whether the litigant was entitled to as-applied standing or (2) without mentioning or
discussing standing at all, such cases are inapposite to the present case.
10
majority noted, however, that “[e]ven if judicial review w ere relatively speedy,
such review cannot sub stitute for concrete s tandards to g uide the decision -maker’s
discretion.” Id., 108 S. Ct. at 2151. Thus, time limits are required when their lack
could result in censors hip of certain viewp oints or id eas, see, e.g., Freedman v.
Maryland, 380 U .S. 51, 5 8-59, 8 5 S. Ct. 7 34, 739 (1965 ), but are n ot categoric ally
required when the perm itting sche me is con tent-neu tral. Thomas v. Chicago Park
Dist., 534 U .S. 316 , 322-2 4, 122 S . Ct. 775 , 780-8 1 (200 2). See also Granite State
Outdoor Adver., Inc. v. City of St. Petersburg, ___ F.3d ___, ___ (2003) (noting
that, “In particular, . . . the Court never stated time limits were per se required for a
[conten t-neutral] p ermitting scheme to be valid . Rather, th e Cour t simply h eld all
that was required were ‘adequate standards to guide the official’s discretion and
render it subject to judicial review.’”) (citations omitted)).
The Clearwater Community Development Code gives no similar discretion
to the permitting authorities as existed in cases such as Lakewood. City offic ials
can only process a permit application and decide to grant or deny the permit based
on specific, objective criteria (e.g., the height, size, or surface area of a proposed
sign). Moreover, we note that the litigants in Lakewood, who w ere allow ed to
facially challenge an ordinance on the ground that it gave permitting authorities
unbrid led discre tion, we re injured under th e very pr ovision s they cha llenged.
11
Lakewood, 486 U.S. at 754, 108 S. Ct. at 2142. As we have explained, this is not
the circum stance fo r Gran ite State, w hich suf fered no injury in f act unde r Article
4.7
The jud gment o f the distric t court de nying G ranite Sta te standin g to
challenge Article 4 both as applied and facially under the o verbreadth doctrine is,
therefor e, affirme d.
B. Mootness
Like the requirement of standing, mootness is a justiciability doctrine that
must be satisfied b efore w e may de cide a case . See, e.g., United States P arole
Comm ’n v. Ge raghty, 445 U .S. 388 , 396-9 7, 100 S . Ct. 120 2, 1208 -09 (19 80). W e
lack jurisdiction because of mootness “when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U .S. 486 , 496, 89 S. Ct. 19 44, 195 1 (196 9). In this case, the C ity
argues that Granite State’s claims are now moot because Clearwater has revised the
Code in accordance with the district court’s decision. Because Granite State has
requeste d dama ges, how ever, the c hanges made to the ordin ance do not mak e this
7
Moreover, as noted in Granite State Outdoor Adver., Inc. v. City of St. Petersburg, it is
possible that the “City officials could potentially delay the processing of certain permit
applications and thereby arbitrarily suppress disfavored speech.” ___ F.3d ___, ___ (11th Cir.
2003). Because we find Granite State lacks standing to challenge Article 4, we find that such
“abuse must be dealt with if and when a pattern of unlawful favoritism appears.” Id. at ___
(quoting Thomas, 534 U.S. at 325, 122 S. Ct. at 781).
12
case mo ot. See, e.g., Firefigh ter’s Loc al Unio n No. 1 784 v. S totts, 467 U.S. 561,
571, 10 4 S. Ct. 2 576, 25 84 (19 84); Havens Realty Corp. v. Coleman, 455 U.S.
363, 37 1, 102 S . Ct. 111 4, 1120 (1982 ); see also Mesq uite v. A laddin’s C astle,
Inc., 455 U.S. 2 83, 289 , 102 S . Ct. 107 0, 1074 (1982 ) (“repeal o f the obje ctionable
language would not preclude [Clearwater] from reenacting precisely the same
provision if the District Court’s judgment were vacated”). Thus, we must rule on
the cons titutionality o f the pro vision u nder w hich G ranite Sta te may be entitled to
damages, § 3-1806.B.1. As we have explained, this section was not
unconstitutionally applied to Granite State. Accordingly, Granite State is not
entitled to damages resulting from the denial of its permits under this section. The
district cou rt’s denial o f damag es is affirm ed.
C. Attorney’s Fees
Granite State argues that it should be entitled to an award of attorney’s fees
pursuant to 42 U.S.C. § 1988(b), which permits the court to award attorney’s fees
to the “prevailing party” for actions brought unde r various civil rights provisions,
includin g 42 U .S.C. § 1 983. 42 U.S.C . § 1988 (b). Gr anite State argues th at, while
it did not succeed on all of its claims in the district court, it nevertheless should be
entitled to attorney’s fees because it has achieved “excellent results” for third
parties who may have sought to post a sign under the provisions of the ordinance
13
stricken by the district court. Appellant’s Br. at 40. Under § 1988, however, the
plaintiff is considered a “prevailing party” if he obtains “at least some relief on the
merits of his claim” . . . “[that] materially alters the legal relationship between the
parties.” Farrar v. Hobby, 506 U.S. 103, 111-12, 113 S. Ct. 566, 573 (1992)
(citations o mitted); Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 2675
(1987 ). See also Fangala v. State Bar of Ga., 150 F.3d 1333, 1347 n.34 (11th Cir.
1998). Furthermore, “[a] favorable judicial statement of law in the course of
litigation that results in judgment against the plaintiff does not suffice to render
him a ‘pr evailing p arty’” und er § 198 8. Hew itt, 482 U.S. at 763, 107 S. Ct. At
2677.
In this cas e, Gran ite State is n ot the “pre vailing p arty” and the relation ship
between the parties is unaltered.8 We have determined that § 1306.B.1. was
constitutionally applied to Granite State and is facially constitutional. We also
determin ed that the district cou rt erred in allowin g Gran ite State stan ding to
challenge any other provisions in Article 3, Division 18. Moreover, we determined
that the dis trict court c orrectly ru led that G ranite Sta te did no t have stan ding to
challenge Article 4. Thus, Granite State has not prevailed on any of its claims
8
As in Granite State Outdoor Adver., Inc. v. City of St. Petersburg, it is true that several
provisions in the Clearwater ordinance were voluntarily altered by the City as a result of this
litigation. These changes, however, “have no bearing on Granite [State], and thus their alteration
does not serve to confer prevailing party status upon Granite [State].” ___ F.3d at ___, n.8.
14
regarding th e Clearwater Comm unity Deve lopment C ode. The d istrict court’s
denial of an awa rd of atto rney’s fee s is affirm ed.
III. CONCLUSION
The dis trict court e rred in its c onclusio n that G ranite Sta te had stan ding to
challeng e the entire ty of Ar ticle 3, Div ision 18 of the C learwate r Com munity
Develo pment C ode. A ccordin gly, this pa rt of the d istrict cour t’s holdin g is
reversed and remanded for proceedings consistent with this opinion. The district
court correctly denied Granite State both standing to challenge Article 4 and
injunctiv e relief bec ause the p rovision under w hich G ranite Sta te’s perm it requests
were denied is not unconstitutional. Moreover, the district court correctly denied
Granite State’s request for attorney’s fees. Accordingly, the judgment of the
district court is AFFIRMED in part, REVERSED in part, and REMANDED for
further p roceedin gs cons istent with this opin ion.
15
ANDERS ON, Circuit Judge, concurring.
I concu r in the res ult.
16