JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Plaintiff's Motion for Summary Judgment (Dkt. 19), Defendant's Motion for Summary Judgment (Dkt. 20), and the parties' respective Responses thereto (Dkts. 24, 25). The Court, upon review of the motions, responses, record evidence, and being otherwise advised in the premises, concludes that Plaintiff's motion should be granted and Defendant's motion should be denied. Accordingly, final judgment will be entered in Plaintiff's favor.
Defendant Town of North Redington Beach, Florida (the "Town"), has a comprehensive sign ordinance that prohibits the display of non-commercial and commercial outdoor signs without a permit, but exempts more than 17 categories of signs. Plaintiff Sweet Sage Café, LLC is a casual beach-themed restaurant located in North Redington Beach, FL. Plaintiff was cited for violating Defendant's sign ordinance. Plaintiff argues that Defendant's sign ordinance violates the First Amendment. The Court agrees with Plaintiff, and concludes that Defendant's sign ordinance is a content-based regulation of speech that does not survive strict scrutiny. As such, the sign ordinance is facially unconstitutional and Defendant will be permanently enjoined from enforcing it.
Plaintiff operates a restaurant that offers breakfast and lunch in a casual beach-themed setting located at 16725 Gulf Boulevard, North Redington Beach, FL, and known as Sweet Sage Café. (Messmore Depo. at 4, 12, 16). The restaurant also contains a clothing boutique that sells resort-styled clothing, novelty items, and artwork. Id. at 12-15; 19. The restaurant itself is decorated with funky and eclectic motif items that include pictures depicting the history of the area as well as images of marine life, tropical birds and plants, beach items, and whimsical textual messages. Id. at 17-18. The exterior of the building is decorated to create a "Key West" style atmosphere and to showcase the owners' sense of humor. Id. at 20; 43. Plaintiff is managed by its members, John and Barbara Messmore, who acquired the business in approximately 2005. Id. at 9. The restaurant itself has been in operation in its current location in the Town since approximately 1994. Id.
In June of 2015, the Town adopted Ordinance 2015-759 (the "sign ordinance") to regulate signs in the Town and replace its pre-existing sign ordinance. (Lewis Depo. at 14; Exhibit 1). In relevant part, section 86-1 of the sign ordinance describes the sign ordinance's purpose and intent as follows:
Section 86-3 of the sign ordinance further defines a "sign" as:
Section 86-4 titled "Permit Required" instructs as follows:
Section 86-10 of the sign ordinance exempts from the permit requirement certain "signs" as follows:
(Lewis Depo. at Exhibit 1).
In August of 2015, the Town issued a Notice of Violation to Plaintiff that identified numerous violations of the sign ordinance. (Lewis Depo. at Exhibit 5). Specifically, the violations related to the following items decorated on or near the exterior of the restaurant:
(Complaint, Exhibits A-E).
Plaintiff was also cited for having an additional parking sign. Specifically, Plaintiff affixed a white plaque with black lettering to the white vinyl fence surrounding the parking lot, which contained the words "additional parking," along with an arrow pointing to the next through street (the "Additional Parking Sign"). (Complaint at Exhibit A). The Notice of Violation identified the Additional Parking Sign as a sign that was subject to removal under the sign ordinance. In addition, it was identified as being in excess of a two-sign limit for directional signs. (Lewis Depo. at Exhibit 3).
Plaintiff removed each item identified in the Notice of Violation in order to avoid further code enforcement proceedings. Subsequently, Plaintiff filed the instant action, challenging the constitutionality of the sign ordinance under the First Amendment. Now, both parties move for summary judgment.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
I. Defendant's Motion for Summary Judgment
Defendant's motion for summary judgment argues that Plaintiff failed to exhaust its administrative remedies because Plaintiff filed this action before it pursued any remedies under the Town's Code Enforcement process. Defendant also appears to briefly argue that the claims in this case are not ripe. These arguments are unconvincing and largely ignore well-established law on the issues of exhaustion and ripeness in the context of a civil rights proceeding under 42 U.S.C. § 1983.
As a threshold issue, the law is clear that parties raising federal claims under § 1983 are generally exempt from any requirement that they first exhaust administrative remedies. See Patsy v. Bd. of Regents of the State of Florida, 457 U.S. 496, 500 (1982); Wilson v. Florida Bd. of Regents, 694 F.2d 239, 239 (11th Cir. 1982) (reversing dismissal for failure to allege exhaustion of administrative remedies); see also Beaulieu v. City of Alabaster, 454 F.3d 1219, 1226 (11th Cir. 2006) (noting that the plaintiff was not required to exhaust administrative remedies before challenging the defendant's sign ordinance under § 1983).
Although the crux of Defendant's argument is that Plaintiff failed to exhaust its administrative remedies, Defendant also asserts that this failure renders Plaintiff's claims unripe because there was never any final determination by a code enforcement board or magistrate as to whether Plaintiff actually violated Defendant's sign ordinance.
Second, and as Plaintiff discusses in more detail in its response to Defendant's motion, Plaintiff asserts a facial challenge to Defendant's sign ordinance. When such a challenge is made in the first amendment context, a plaintiff need not suffer direct harm under the "overbreadth" doctrine, which enables persons "who are themselves unharmed by the defect in a statute nevertheless to challenge that statute on the basis that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484 (1989) (internal quotations and citations omitted); see also Dimmitt v. City of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993) (discussing same); Nat'l Advert. Co. v. City of Fort Lauderdale, 934 F.2d 283, 285 (11th Cir. 1991).
Accordingly, Defendant's motion for summary judgment is denied.
II. Plaintiff's Motion for Summary Judgment
Plaintiff's motion argues, in relevant part, that Defendant's sign ordinance is facially unconstitutional because it regulates based upon the content of the speech and cannot survive strict scrutiny. The Court agrees, based on binding precedent from the recent United States Supreme Court opinion in Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2226 (2015) and the Eleventh Circuit opinion in Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (2005) (applying the same test articulated in Reed to a city sign code).
"The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws `abridging the freedom of speech.'" Reed, 135 S. Ct. at 2226 (quoting U.S. Const., Amdt. 1). A government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Id. (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). A law that targets speech based on its "communicative content" is presumptively unconstitutional and may be justified "only if the government proves that [the law is] narrowly tailored to serve compelling state interests." Id. (citations omitted).
In Reed, the Supreme Court considered whether the defendant town's sign code was content based on its face. The defendant town's "comprehensive code" prohibited the display of outdoor signs without a permit, but, like Defendant's sign ordinance here, exempted 23 categories of signs. Id. at 2224. Included among the exemptions were directional signs, political signs, and ideological signs. Id. at 2224-25. The plaintiff, a pastor of a small church, had been cited multiple times under the town's sign code for posting temporary signs that directed church members to services. The church was cited for exceeding time limits for the display of temporary directional signs and for failing to include the date of the event on the signs. Id.
The Court concluded that the defendant's sign code was content based on its face because, whether the sign code restrictions applied to a particular sign, depended "entirely on the communicative content of the sign." Id. at 2227. The Court noted that the sign code defined "Temporary Directional Signs" on the basis of whether a sign conveyed the message of directing the public to church or some other "qualifying event," "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election," and "Ideological Signs" on the basis of whether a sign "communicates a message or ideas" that do not fit within the code's other categories. The sign code then subjected each of these categories to different restrictions. Id. at 2227-31. The Court stated:
Similarly, Defendant's sign ordinance is, on its face, a content-based regulation of speech. The sign ordinance purports to govern all signs within the Town but then exempts numerous categories of signs from the permit requirement, like government signs, holiday and seasonal signs, political campaign signs, and warning signs. These exemptions necessarily depend upon the content of the signs and require the Town's enforcement officer to evaluate the content of the sign to determine whether an exemption applies.
Notably, pre-Reed, the Eleventh Circuit subjected content-based sign ordinances, like Defendant's sign ordinance here, to a strict scrutiny analysis. See Solantic, 410 F.3d at 1255 (holding that a sign ordinance with 17 content-based exemptions was a content-based regulation and unconstitutional on its face because it did not survive strict scrutiny). In Solantic, the plaintiff was a business operating emergency medical care facilities in various locations, including the City of Neptune Beach. The plaintiff installed in front of its Neptune Beach facility a large "Electronic Variable Message Center" (EVMC) sign. The EVMC sign sat in the middle of a pole, approximately 10 to 12 feet above the ground, and was situated below a larger blue sign displaying Solantic's business name. The EVMC sign "was used for, and is intended to be used for, commercial messages, i.e. to identify Solantic's business and to convey information about its products and services, and for noncommercial messages, i.e. to promote social and health ideas and causes." The defendant city sent plaintiff a notice of violations of various sections of the city's sign code. See id. at 1252.
Like Defendant's sign ordinance here, the sign code in Solantic regulated all signs located in the city but then contained 17 enumerated exemptions from the regulations, like exemptions for holiday decorations, religious displays, and public warning signs. See id. at 1257. The Eleventh Circuit concluded that: "Because most (though not all) of the exemptions from the sign code are based on the content—rather than the time, place, or manner—of the message, we are constrained to agree with Solantic that the sign code discriminates against certain types of speech based on content." Id. at 1258. In other words, the sign code was not content neutral. See id. The sign code was subjected to strict scrutiny, "meaning that it is constitutional only of it constitutes the least restrict means of advancing a compelling government interest." Id.
Thus, having concluded that the Town's sign ordinance is content-based, the Court must now determine whether the sign ordinance survives strict scrutiny. The Court concludes that it does not. As set forth in section 86-1 of the sign ordinance, the purpose and intent of the code is to protect and promote the health, safety, and welfare of the community by establishing a set of comprehensive standards for the use and placement of signs, symbols, and markings. The code further describes its objectives as including: the enhancement of visual attractiveness, preservation of aesthetic qualities, and promotion of traffic and pedestrian safety. The law is clear, however, that such general and abstract aesthetic, business, and traffic safety interests are generally not considered so compelling as to justify content-based restrictions on signs. See Solantic, 410 F.3d at 1267-68; Dimmitt, 985 F.2d at 1570.
Moreover, even assuming, for the sake of argument, that the Town's stated interests could be considered compelling, the sign ordinance's enumerated exemptions are not narrowly tailored to accomplish the Town's asserted interests. In Solantic, the Eleventh Circuit described how the city's sign code was not narrowly tailored to accomplish the city's interests in promoting aesthetics and traffic safety because the exemptions contained within the code had nothing to do with those government interests:
410 F.3d at 1267-68.
The Town's sign ordinance succumbs to strict scrutiny for the same reasons as the contested regulations in Solantic and Reed: it is "hopelessly underinclusive." For example, in Reed, the Court noted that the town placed "strict limits on temporary directional signs . . . while at the same time allowing unlimited numbers of other types of signs that [diminish aesthetic appeal]." 135 S. Ct. at 2231. Similarly, the Town offers no rationale for why political campaign signs or government signs, as opposed to signs advertising local businesses, increase the Town's aesthetic appeal in such a way as to merit different treatment. Another example is the exemption contained within the Town's sign ordinance for "[n]ational flags": the flag of a private or secular organization is "no greater an eyesore" than a "national" flag. Id. And works of art that reference a product or service do not necessarily detract from the Town's physical appearance any more than other works of art. From a traffic safety standpoint, it is even more unclear how signs advertising local businesses would be more distracting than political or warning signs.
In sum, the Town's sign ordinance fails to survive strict scrutiny because its enumerated exemptions create a content-based scheme of speech regulation that is not narrowly tailored to serve a compelling government purpose. Morever, these exemptions are not severable from the remainder of the sign ordinance because "[i]t is not clear that the legislature would have enacted the [sign ordinance], complete with its permit requirement and restrictions on form, even without the exemptions. The legislature might have preferred not to impose these regulations on any signs if doing so meant that all signs would be subjected to these rules." Solantic, 410 F.3d at 1269. In other words, the sign ordinance's regulations and exemptions are not "so inseparable in substance that it can be said that the Legislature would have passed the one without the other." Id. (citations omitted). Accordingly, the Court concludes that the Town's sign ordinance is facially unconstitutional under the First Amendment.
It is therefore
4. The Clerk is directed to close this case and terminate any pending motions as moot.