[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
January 14, 2005
No. 03-15517 THOMAS K. KAHN
______________________________ CLERK
D.C. Docket No. 02-00012CV-3- LAC/MCR
SEAY OUTDOOR ADVERTISING, INC.,
Plaintiff-Appellant,
versus
CITY OF MARY ESTHER, FLORIDA,
JOHN LULUE, as an individual and in his
capacity as City Manager, et al.,
Defendants-Appellees.
_______________________
Appeal from the United States District Court for the
Northern District of Florida
_______________________
(January 14, 2005)
Before EDMONDSON, Chief Judge, PRYOR and FAY, Circuit Judges.
FAY, Circuit Judge:
In this sign ordinance case, Plaintiff-Appellant Seay Outdoor Advertising, Inc.
(“Seay”) filed a complaint challenging as unconstitutional the repealed version of an
revised local ordinance governing the erection and maintenance of signs in the City
of Mary Esther, Florida (“Mary Esther”). Seay’s Complaint sought to permanently
enjoin enforcement of the repealed ordinance, to compel Mary Esther to grant permits
which would allow Seay to erect seven billboards within the city limits, and requested
damages, costs, and attorneys’ fees. Despite the fact that Mary Esther had repealed
the complained of ordinance two months prior to the institution of the suit, Seay’s
Complaint did not challenge the new version of the sign ordinance. On cross-motions
for summary judgment, the district court found certain portions of the challenged
ordinance unconstitutional but held those portions severable from the remainder of
the ordinance. In so doing, the district court further upheld Mary Esther’s ban on
billboards. The court also denied Seay’s request for damages and motion for
attorneys’ fees and costs. Seay now appeals. After thorough review, we believe the
case is moot and, therefore, nonjusticiable. Accordingly, we reverse the district
court’s grant of summary judgment and remand with instructions to dismiss for lack
of subject matter jurisdiction.
BACKGROUND
The facts in this case are not in dispute. Seay is an outdoor advertising
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corporation that buys or leases land to construct signs for commercial and
noncommercial speech. Mary Esther is a small municipality, approximately two
square miles in area with a population of approximately 4,055. Seay contracted with
property owners in Mary Esther to construct seven billboards throughout the city. To
that end, on June 7, 2001, Seay submitted seven applications for permits to post the
signs. The erection of signs in Mary Esther was governed by Article 16 of Mary
Esther’s Land Development Code (the “Repealed Sign Ordinance”). On that very
day, all seven applications were denied solely on the basis of Section 16.00.01(G) of
the Repealed Sign Ordinance, which explicitly disallowed billboards. Seay did not
appeal these rejections. Instead, Seay engaged the Mary Esther City Attorney in
communications in an effort to resolve the matter. In the interim, on November 5,
2001, Mary Esther adopted Ordinance 2001-12 (the “New Sign Ordinance”), which
repealed and replaced the Repealed Sign Ordinance, however, the ban on billboards
remained intact. Because the ban on billboards remained, Seay did not resubmit its
applications.
Seay filed suit against Mary Esther on January 17, 2002, two months following
the enactment of the New Sign Ordinance. Interestingly, the Complaint claims only
that the Repealed Sign Ordinance is unconstitutional, and does not reference or
challenge the New Sign Ordinance. Moreover, although Seay’s permits were denied
3
because of the particular provision banning billboards, Seay does not claim that that
particular provision is unconstitutional. Rather, Seay claims that the Repealed Sign
Ordinance is unconstitutional in its entirety because it violates the First Amendment
to, and the Equal Protection Clause of, the United States Constitution and has resulted
in an unconstitutional taking. Seay sought a permanent injunction precluding
enforcement of the Repealed Sign Ordinance, as well as damages pursuant to 42
U.S.C. § 1983, and costs and attorneys’ fees pursuant to 42 U.S.C. § 1988.
Mary Esther moved to dismiss the complaint on, among other things, mootness
grounds. The district court denied Mary Esther’s motion, finding that the case had
not been rendered moot by the New Sign Ordinance. In so holding, the district court
applied the voluntary cessation doctrine and stated as its reasoning that Mary Esther
had not established that the likelihood of further violations was sufficiently remote
to dismiss Seay’s complaint as moot. In addition, the Court stated that Seay’s
potential vested right to the permits may have also been sufficient to defeat Mary
Esther’s mootness argument.
The parties later filed cross-motions for summary judgment, and although the
district court found several provisions of the Repealed Sign Ordinance
unconstitutional, it determined that these invalid provisions were severable from the
remainder of the Repealed Sign Ordinance. Accordingly, the court denied Seay’s
4
motion and granted summary judgment in favor of Mary Esther. The district court
further concluded that Seay was not entitled to any damages, costs, or attorneys’ fees.
Seay now appeals.
DISCUSSION
Mootness is the threshold issue in this case. While neither party raises this
issue on appeal, mootness is a jurisdictional question under Article III, which must
be raised by the court. See, e.g., C & C Prods., Inc. v. Messick, 700 F.2d 635, 636
(11th Cir. 1983). The Article III requirement of a case or controversy is a fundamental
aspect of our jurisdiction. 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.
Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir.
2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001)). Mootness
can occur due to a change in circumstances, or, as here, a change in the law. Id.
“When 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) (citations
omitted). Thus, before we decide the legal questions posed by Seay, we raise sua
sponte the question whether the New Sign Ordinance renders moot Seay’s
constitutional challenge to the Repealed Sign Ordinance. In finding this case
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justiciable, the district court stated that Mary Esther was conceivably free to re-enact
the offending provisions of the Repealed Sign Ordinance at any time and that Seay
may have acquired vested rights under the former version of the New Sign Ordinance.
We disagree.
I.
Because of the possibility that the defendant could simply return to his old
ways, “[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) (internal quotations omitted). A case may nevertheless be moot if the
defendant can demonstrate that (1) "there is no reasonable expectation that the alleged
violation will recur," and (2) "interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation." County of Los Angeles
v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations
and internal quotations 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.” City of Sunrise, 371 F.3d at 1328-29. See
also Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d
Cir. 1992) (“Some deference must be accorded to a [legislative body’s]
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representations that certain conduct has been discontinued.”); 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.”).
Constitutional challenges to statutes are routinely found moot when a statute
is amended or repealed. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582, 109
S.Ct. 2633, 105 L.Ed.2d 493 (1989); City of Sunrise, 371 F.3d at 1329; Harrison &
Burrowes, 981 F.2d at 59. The Supreme Court cautions against holding a challenge
to a repealed law moot if the law is reasonably likely to be reenacted or when it is
replaced by another constitutionally suspect law.1 “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.” City of Sunrise, 371 F.3d at 1329.2
1
See, e.g., City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 102 S.Ct. 1070, 71
L.Ed.2d 152 (1982) (declining to find moot when the City expressly announced an intention to
reenact the old language of a challenged law if the appellate court vacated the district court’s
holding that the language of the statute was unconstitutionally vague); Northeastern Florida
Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113
S.Ct. 2297, 124 L.Ed.2d 586 (1993) (declining to find moot when law that replaced repealed law
still potentially disadvantaged the plaintiff).
2
See, e.g., Christian Coalition of Alabama v. Cole, 355 F.3d 1288 (11th Cir. 2004)
(finding case moot where defendants submitted to the court a representation that the wrongful
conduct would not be repeated); Jews for Jesus v. Hillsborough County Aviation Authority, 162
F.3d 627 (11th Cir.1998) (finding case moot where the changed policy was the result of
7
In City of Sunrise, this Court recently addressed similar issues under nearly
identical circumstances. In that case, as here, an outdoor advertising company sued
a city claiming that the sign code was unconstitutional. Prior to the filing of the suit,
as here, the old sign code was replaced by the city with an amended sign code that
eliminated most of the constitutionally infirm provisions while continuing to prohibit
billboards. The Court held that the doctrine of voluntary cessation did not save the
action from being rendered moot by the city’s amendment of the code. In so holding,
the Court was persuaded that the city would not re-enact the old sign code by counsel
for the city’s express disavowment at oral argument of any intention of defending the
old sign code, and by the city’s prompt amendment of the sign code in response to a
letter from the plaintiff, before the city was ever sued. The Court found absolutely
no indication that the city repealed its old sign code in bad faith.
Similarly, in the case at hand, enactment of the New Sign Ordinance was
prompted by communications from Plaintiff’s counsel and preceded the filing of this
suit by two months. In addition, counsel for Mary Esther, likewise, expressly
disavowed at oral argument any intention of re-enacting the Repealed Sign
Ordinance. Accordingly, the voluntary cessation doctrine is inapplicable, and will
“substantial and conscientious deliberation,” and had been “consistently applied” since its
enactment).
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not save this case from a mootness determination.3
II.
We must next examine whether Seay possessed a vested right to the sign
permits at the time of application. State law dictates whether a vested right has been
created, and again, we are guided by our recent decision in City of Sunrise, where we
engaged in a thorough and extensive analysis of applicable Florida law. As discussed
in City of Sunrise, in order to claim a vested right, Seay must show one of the
following circumstances: (1) that it has reasonably and detrimentally relied on
existing law (equitable estoppel); or (2) that Mary Esther has acted in a clear display
of bad faith. 371 F.3d at 1334. Neither circumstance is present in this case.
A. Equitable Estoppel
In order to invoke the doctrine of equitable estoppel, Seay must show that “it
has incurred substantial expense in reasonable reliance on existing law.” Id. at 1338.
Similar to the sign company in City of Sunrise, there is no evidence that Seay has
incurred any significant expense in reliance on the Repealed Sign Ordinance. Indeed,
3
In City of Sunrise, the Court contemplated that “if the City of Sunrise did 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,
[the Court] would plainly forbid it from doing so.” 371 F.3d at 1320. We adopt this warning and
caution, here, against such “flip-flopping.”
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the Repealed Sign Ordinance, on its face, precluded the construction of billboards,
the very signs contemplated by Seay. Therefore, there is no basis to find that Seay
“reasonably relied” on the provisions of the Repealed Sign Ordinance.
Moreover, Seay’s standardized written lease agreements provide for no money
to be paid to the landowners until the date of construction of the billboards. The
billboards were never constructed. Seay has not paid any money to the landowners
with whom it entered into contracts. There was no final lease agreement between
Seay and the landowners for at least two of the sign permit applications submitted to
Mary Esther. It does not even appear that Seay incurred any expense in preparing the
permit applications, as the construction plans for the billboards were not site specific.
Given all of this evidence, it is clear that there was no equitable estoppel that could
conceivably rise to a vested right in the sign permits.
B. Bad Faith
In the absence of equitable estoppel, in order to obtain a vested right, Seay
must show that Mary Esther acted in bad faith in denying the sign permits. City of
Sunrise, 371 F.3d at 1336. As explained in City of Sunrise, the Florida cases that
have found bad faith have done so in instances where it was obvious that the
municipality was purposely attempting to avoid granting the permit or license to the
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plaintiff. Id. Examples of such situations include “an ‘emergency ordinance’ passed
while the application was pending,” “selective and erroneous enforcement of an
arguably unconstitutional provision of the law,” and “deliberate delay of the issuance
of a permit until after a building moratorium went into effect.” Id. at 1337-38. None
of these scenarios, or anything akin to them, is present in this case. First, because
there are no off-site billboards in Mary Esther, Seay cannot claim that Mary Esther
selectively enforced its Repealed Sign Ordinance against Seay. Second, the
circumstances surrounding Mary Esther’s amendment to the allegedly
unconstitutional Repealed Sign Ordinance are virtually identical to those in City of
Sunrise, where no evidence of bad faith was found. In City of Sunrise, not only did
the city amend its sign code to eliminate the constitutionally questionable provisions
before the sign company filed suit, but also left intact those provisions under which
the sign company’s permit was denied. Id. at 1339. Similarly, Mary Esther repealed
and replaced its allegedly unconstitutional sign ordinance two months before Seay
initiated litigation, and the New Sign Ordinance retained the provision pursuant to
which Seay’s permits were denied, namely, the provision prohibiting the erection of
billboards. Indeed, as we see it, the allegedly unconstitutional aspects of the
Repealed Sign Ordinance had nothing whatsoever to do with the rejection of Seay’s
permit applications.
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Accordingly, in this case, we can find neither equitable estoppel nor bad faith,
and accordingly, Seay does not possess a vested right to any sign permits.
III.
Having found that Mary Esther has no intention of reenacting the Repealed
Sign Ordinance and that Seay possesses no vested right in a sign permit, the case may
still be justiciable if the New Sign Ordinance contains the same constitutional defects
as its predecessor. “[A] superseding statute or regulation moots a case only to the
extent that it removes the 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.” City of Sunrise, 371 F.3d at 1342-43 (quoting
Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir. 1992)).
Upon review of the New Sign Ordinance, we believe that Seay’s challenges to
the Repealed Sign Ordinance are moot because they seem to have been remedied by
the New Sign Ordinance.4 However, if the challenged provisions of the New Sign
Ordinance are severable from those portions of the Repealed Sign Ordinance that
4
Ordinance 2001-12 repealed the original Sign Ordinance in its entirety and enacted a
completely revised Sign Ordinance, which seemingly removed all of the language objected to by
Seay and cured any other challenged defects.
12
actually caused the denial of the permit application, there is no point in evaluating
Seay’s arguments as to those provisions. City of Sunrise, 371 F.3d at 1347.
“Severability of a local ordinance is a question of state law.” Id. (citing City
of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 2152, 100
L.Ed.2d 771 (1988)). Under Florida law, the test for severability is as follows:
When part of a statute is declared unconstitutional the
remainder of the act will be permitted to stand priovided:
(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.
Id. at 1348 (citing Smith v. Department of Insurance, 507 So.2d 1089 (Fla. 1987)).
“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.” Id.
Further bolstering the severability of the New Sign Ordinance is Mary Esther’s
express, codified legislative desire to keep as much of its Sign Ordinance as possible:
Severability: If any section, subsection, paragraph,
subparagraph, division, subdivision, clause, sentence,
word, or provision of this ordinance shall be adjudged by
a court of competent jurisdiction to be invalid or
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constitutional, such portion shall be deemed a separate,
distant, and independent provision and such judgment shall
not affect, impair, invalidate, or nullify the remainder of
this ordinance.
New Sign Ordinance, Section Two. Moreover, Florida law states that “[a]lbeit not
binding, a legislatively expressed preference for the severability of voided provisions
is persuasive.” City of Sunrise, 371 F.3d at 1349 (citing Moreau v. Lewis, 648 So.2d
124, 127 (Fla. 1995) (citation omitted)). To rule that the challenged provisions were
not severable from the remainder of the New Sign Ordinance “would seriously
infringe on the notion of legislative autonomy and ignore Florida’s doctrine of
severability.” Id.
The denial of Seay’s permit applications was based solely on the provision of
the Repealed Sign Ordinance prohibiting billboards. To the extent that any
purportedly unconstitutional provisions of the Repealed Sign Ordinance were retained
in the New Sign Ordinance, we find that the ban on billboards, which is never
challenged by Seay, continues to further the purpose of the New Sign Ordinance in
the absence of the challenged provisions.5 The regulatory purpose of the undisputed
5
For example, City Ordinance 2001-12, enacting the New Sign Ordinance, states that “the
City Council of the City of Mary Esther finds and determines that the regulation of billboards as
set forth herein will improve the beauty of the City of Mary Esther, foster overall improvement to
the aesthetic and visual appearance of the city, preserve and open up areas for beautification on
public property adjoining the public roadways, increase the visibility, readability and/or
effectiveness of on-site signs by reducing and/or diminishing the visual clutter of off-site signs,
enhance the City of Mary Esther as an attractive place to live and work, reduce blighting
14
sections of the Repealed Sign Ordinance – avoiding eyesores and traffic disruption
– would not be destroyed by the elimination of the suspect content regulations.
Therefore, we find that any portions of the Repealed Sign Ordinance retained
by the New Sign Ordinance that arguably may be unconstitutional are fully severable
from the rest of the law, particularly the ban on billboards, which was the provision
that lead to the rejection of Seay’s permit applications. Therefore, we need not – and
do not – evaluate whether other portions of the New Sign Ordinance may be
unconstitutional because any decision on the merits can have no bearing on the case
before us. See id. “Indeed, if we were to evaluate the validity of certain provisions
of the [New Sign Ordinance], 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.” Id.
Accordingly, we hold that the challenge to the Repealed Sign Ordinance is
moot, and this Court, therefore lacks subject matter jurisdiction.
REVERSED and REMANDED, with instructions to DISMISS for lack of
subject matter jurisdiction.
influences, and improve traffic safety by reducing driver distractions.”
15
EDMONDSON, Chief Judge, concurs in the result.
16