[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 29, 2007
No. 06-11070 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00214-CV-J-32MCR
KH OUTDOOR, L.L.C.,
DALE P. EGGERS,
MOOREA, INC.,
Plaintiffs-Appellants,
versus
CLAY COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 29, 2007)
Before BIRCH and BLACK, Circuit Judges, and MILLS,* District Judge.
*
Honorable Richard Mills, United States District Judge for the Central District of
Illinois, sitting by designation.
BIRCH, Circuit Judge:
In this appeal, we must determine whether the district court properly denied
a request for injunctive relief and damages brought by plaintiffs-appellants, KH
Outdoor, L.L.C., MooreA, Inc., and Dale P. Eggers against defendant-appellee,
Clay County, Florida, after the Board of County Commissioners Zoning
Department denied several permit applications to construct billboards in Clay
County. The district court dismissed the case, finding that it was moot. We
conclude that, although the complaint of KH Outdoor is not moot because KH
Outdoor requested damages for the alleged violation, KH Outdoor lacks standing.
As a result, we AFFIRM the district court’s dismissal of the case.
I. BACKGROUND
On 1 March 2004, KH Outdoor submitted seven building permit application
packets to Cheryl Miller, defendant Clay County’s Zoning and Code Enforcement
Director. The applications sought permits to erect seven 672 square foot “off-
premise signs” on seven different parcels of property within the County. Under
“Contractor Name,” the building permit application packages listed “Selective
Structures.” R74, App. 42-48. The accompanying construction-engineering
drawings indicated that they were made for structures to be erected in Jacksonville,
Florida. Miller did not accept the permits, explaining to KH Outdoor’s
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representative that the Clay County Ordinance 98-7 (“Old Sign Ordinance”)
prohibited the erection of new billboards. Miller then sent KH Outdoor a letter
formally denying the sign permit applications.
KH Outdoor did not administratively appeal the County’s rejection of its
permit applications. Instead, it filed suit in federal district court on 24 March 2004,
pursuant to 42 U.S.C. § 1983, alleging that Clay County’s Old Sign Ordinance was
an unconstitutional content-based regulation of commercial and non-commercial
speech that violated the First and Fourteenth Amendments to the United States
Constitution, as well as Florida law. In connection with that action, KH Outdoor
also filed a motion for preliminary injunction seeking to enjoin Clay County from
enforcing the Old Sign Ordinance and, in effect, to require Clay County to issue
the seven billboard sign permits KH Outdoor applied for in March 2004. After a
hearing, the district court entered an order denying the motion finding that KH
Outdoor had failed to show that it was substantially likely to prevail on the merits
of its complaint.
On 25 June 2004, Clay County enacted Ordinance No. 2004-34 (“New Sign
Ordinance”), which repealed and replaced the Old Sign Ordinance. KH Outdoor
did not apply for a Clay County sign permit following the enactment of the New
Sign Ordinance in June 2004.
3
On 4 February 2005, with leave of the district court, KH Outdoor filed a
fifteen count Second Amended Complaint. The Second Amended Complaint
added two additional party plaintiffs, MooreA, the owner of one of the parcels of
land upon which KH Outdoor had sought a permit to erect a billboard–and with
whom KH Outdoor had entered into a lease agreement to do so–and Eggers,
MooreA’s president.1 The Second Amended Complaint alleged the same as-
applied and facial constitutional challenges to the Old Sign Ordinance that had
been alleged in the original complaint.
KH Outdoor filed a motion for partial summary judgment and Clay County
filed a motion for summary judgment. The district court dismissed the case for
lack of subject matter jurisdiction, and ruled that the motions for summary
judgment were moot. The district court found that there was no substantial
likelihood of Clay County reenacting the Old Sign Ordinance and no bad faith on
the part of Clay County.
The district court found that, even though KH Outdoor challenged numerous
Old Sign Ordinance provisions, the provisions that actually caused the denial of the
permits were: § 20.7-21(1) and (20) (prohibiting new billboards and off-premise
signs); § 20.7-3 (defining off-premise signs); and § 20.7-8 (requiring that an
1
For simplicity, henceforth we refer to the three plaintiff-appellants collectively as “KH
Outdoor.”
4
Administrator review a properly completed and submitted permit application
within a reasonable time). Section 20.7-21(1) was preserved in the New Sign
Ordinance, but the district court found that it was constitutionally firm. Sections
20.7-21(20) and 20.7-3 of the Old Sign Ordinance defined and prohibited off-
premise signs, but the New Sign Ordinance did not contain an outright prohibition
of off-premise signs and the definition did not on its face prohibit noncommercial
speech. As a result, the court found no constitutional infirmity in the New Sign
Ordinance’s provision that merely defines off-premise signs. Section 20.7-8 of the
Old Sign Ordinance, requiring an Administrator to review a sign permit application
“within a reasonable time,” was replaced in the New Sign Ordinance with a
provision requiring an Administrator to review and grant or deny the sign permit
application within fifteen calendar days of receipt. As a result, the district court
found that the provisions of the Old Sign Ordinance that actually caused the denial
of the permit applications either did not survive or “are now (and perhaps always
were) constitutionally sound.” R97 at 14-17.
The court then ruled that any other constitutionally suspect provisions were
severable, and thus KH Outdoor’s challenges to the Old Sign Ordinance were
moot. The court concluded that its mootness holding precluded KH Outdoor’s
claim for damages. Finally, the court found no evidence of bad faith or entitlement
5
to equitable estoppel and, concluded that, therefore, KH Outdoor had no vested
rights under Florida law with respect to the permits for which it applied under the
Old Sign Ordinance. KH Outdoor appealed the district court’s order.
II. STANDARD OF REVIEW
“We review the question of mootness de novo. Tanner Adver. Group,
L.L.C. v. Fayette County, Ga., 451 F.3d 777, 784 (11th Cir. 2006) (en banc)
(citation omitted). “We review standing determinations de novo.” Id. (citation
omitted).
III. DISCUSSION
A. Mootness
“We exercise our discretion to review the issue of mootness first, followed
by the issue of standing.” Id. at 785 (citation omitted). “Article III of the
Constitution requires that there be a live case or controversy at the time that a
federal court decides the case; it is not enough that there may have been a live case
or controversy when the case was filed.” Id. (citation and internal quotations
omitted). “The doctrine of mootness provides that the requisite personal interest
that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” Id. (citations, alterations, and internal
quotations omitted). We have noted that “[o]rdinarily, a challenge to the
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constitutionality of a statute is mooted by repeal of the statute.” Id. (citation and
internal quotations omitted).
KH Outdoors argues that its challenge to the Old Sign Ordinance was not
rendered moot by the adoption of the New Sign Ordinance because its second
amended complaint included a request for damages. “[W]hen a plaintiff requests
damages, as opposed to only declaratory or injunctive relief, changes to or repeal
of the challenged ordinance may not necessarily moot the plaintiff’s constitutional
challenge to that ordinance.” Crown Media, LLC v. Gwinnett County, Ga., 380
F.3d 1317, 1325 (11th Cir. 2004) (citation omitted). Here, because KH Outdoor
requested damages, the changes made to the ordinance do not moot KH Outdoor’s
challenge to the Old Sign Ordinance. See Granite State Outdoor Adver., Inc. v.
City of Clearwater, Fla., 351 F.3d 1112, 1119 (11th Cir. 2003) (“Clearwater”)
(“[T]he City 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 requested damages, however, the changes made to the ordinance
do not make this case moot.”). The district court erred in finding that KH
Outdoor’s case was moot.
B. Standing
The Constitution of the United States limits the subject matter jurisdiction of
7
federal courts to “Cases” and “Controversies.” U.S. Const., Art. III § 2. “[T]he
core component of standing is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). A plaintiff who invokes the
jurisdiction of a federal court bears the burden of showing “(1) an injury in fact,
meaning an injury that is concrete and particularized, and actual or imminent, (2) a
causal connection between the injury and the causal conduct, and (3) a likelihood
that the injury will be redressed by a favorable decision.” Clearwater, 351 F.3d at
1116 (citation and emphasis omitted). Each element is “an indispensable part of
the plaintiff’s case” and “must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at
561, 112 S. Ct. at 2136 (citation omitted). Also, the plaintiff must satisfy certain
prudential principles established by courts. Bennett v. Spear, 520 U.S. 154, 162,
117 S. Ct. 1154, 1161 (1997). These immutable requirements of the Constitution
govern KH Outdoor’s Second Amended Complaint.
KH Outdoor’s “injury” is that it cannot erect its proposed billboards.
Clearwater, 351 F.3d at 1117 (finding Granite State suffered injury under the
provision of the Clearwater code that denied Granite State’s billboard permits).
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Moreover, this injury is causally related to the alleged constitutional violations
challenged.
Clay County argues that KH Outdoor lacks standing to advance its claims
because its injury from the billboard and off-site sign prohibition is not redressible.
In order for an injury to be redressible, “it must be ‘likely,’ as opposed to merely
‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan,
504 U.S. at 561 (citation omitted).
We find that KH Outdoor has not satisfied the redressability requirement.
Any injury KH Outdoor actually suffered from the billboard and offsite sign
prohibition is not redressible because the applications failed to meet the
requirements of other statutes and regulations not challenged. See Advantage
Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 801 (8th Cir. 2006) (“[A]
favorable decision for [outdoor advertising company] even with respect to those
sign code provisions which were factors in the denial of its permit applications
would not allow it to build its proposed signs, for these would still violate other
unchallenged provisions of the sign code like the restrictions on size, height,
location, and setback.” (citation omitted)); Harp v. Adver. Ill., Inc., v. Village of
Chicago Ride, Ill., 9 F.3d 1290, 1292 (7th Cir. 1993) (“Harp suffers an injury (it
can’t erect the proposed billboard), but winning the case will not alter that
9
situation.”).
Although KH Outdoor alleges in its Second Amended Complaint that it
“submitted seven (7) completed sign application packages,” R57 at 13, the
uncontroverted evidence suggests otherwise. Even assuming that the seven sign
application packages met all the applicable permit application requirements found
in the challenged Old Sign Ordinance, the evidence submitted with the parties’
motions for summary judgment indicates that the application packages failed to
comply with applicable provisions of the Florida Building Code and Florida
statutes, which KH Outdoor did not challenge.
The Florida Building Code applies “to the construction [or] erection . . . of
every public and private building, structure or facility or . . . any appurtenances
connected or attached to such buildings, structures or facilities.” Fl. Bldg. Code §
101.4.2. Florida Building Code § 104.2.1, regarding “[d]rawings and
specifications,” provides, in pertinent part, that “two or more copies of
specifications, and of drawings drawn to scale with sufficient clarity and detail to
indicate the nature and character of the work, shall accompany the application for a
permit.” The sign permit applications were not all accompanied by the requisite
number of copies of construction-engineering drawings from licensed engineers
10
drawn for Clay County.2 Moreover, Florida Building Code § 104.2.4 requires that
drawings “show the location of the proposed building or structure and of every
existing building or structure on the site or lot.” The sign permit applications and
accompanying documents submitted to Clay County plainly lacked the required
drawings showing every existing structure on the subject sites.
Additionally, KH Outdoor’s sign permit applications are not consistent with
Florida statutes regarding contracting. The sign permit applications presented to
Clay County listed Selective Structures as the contractor. Selective Structures was
not a licensed building contractor in the state of Florida. The licensed general
contractor here, Richard Nation, did not have the ability, under Chapter 489 of the
Florida Statutes, to submit the sign permit applications in the name of an
unlicensed contractor. See § 489.127(4)(a) (“A certified or registered contractor,
or contractor authorized by a local construction regulation board to do contracting,
may not enter into an agreement, oral or written, whereby his or her certification
number or registration number is used, or to be used, by a person who is not
certified or registered as provided for in this chapter, or used, or to be used, by a
business organization that is not duly qualified as provided for in this chapter to
2
Additionally, as noted previously, the building permit packages did not have
construction-engineering drawings for structures to be erected in Clay County, Florida, but
rather, had drawings prepared for Jacksonville, Florida.
11
engage in the business, or act in the capacity, of a contractor.”). As a result, a
favorable decision, that is, invalidation of the Old Sign Ordinance provisions KH
Outdoor challenged, does not mean KH Outdoor would then receive approval of its
sign permit applications, because Clay County could block the proposed signs by
enforcing other state statutes and regulations not challenged.3
As a final matter, because we find KH Outdoor lacks constitutional standing,
we cannot reach the merits of its challenges, either as applied or under the
overbreadth doctrine, to Clay County’s sign ordinance. “[T]he overbreadth
doctrine does not relieve a plaintiff of the burden to prove constitutional
standing[;]” it is only an exception to one of the prudential requirements. CAMP
Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270 (11th Cir. 2006); see
also Bischoff v. Osceola County, Fla., 222 F.3d 874, 885 (11th Cir. 2000)
(analyzing the three constitutional prongs of standing before considering plaintiff’s
facial challenge under the overbreadth doctrine); Wis. Right to Life, Inc. v.
Paradise, 138 F.3d 1183, 1186 (7th Cir. 1998) (“A litigant cannot create a case or
controversy just by making an untenable ‘facial’ attack on a statute; actual injury
3
We note that the Fourth Circuit, in an unpublished decision, reached a similar result.
See Trinity Outdoor, L.L.C. v. City of Rockville, Md., 123 Fed. Appx. 101, 104-05 (4th Cir.
2005) (per curiam) (affirming the district court’s holding that the billboard company’s alleged
injuries were not redressable by the remedy it sought, in that the billboard company “was neither
registered to do business in Maryland nor licensed to engage in the outdoor advertising business
in that State”).
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and redressability are essential no matter how the challenge is cast.”).
IV. CONCLUSION
Here, a favorable decision for KH Outdoor with respect to the sign code
provisions challenged would not allow it to build its proposed signs, because the
sign permit applications failed to meet other statutes and regulations that were not
challenged. Because we find the appellants, KH Outdoor, L.L.C., MooreA, Inc.,
and Dale P. Eggers, lack standing, the district court’s order dismissing the Second
Amended Complaint for lack of jurisdiction is AFFIRMED.
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