Icon Groupe, LLC v. Wash. Cnty. & Andrew Singelakis, 3:12–cv–01114–AC.

948 F.Supp.2d 1202

ICON GROUPE, LLC, Plaintiff,

v.WASHINGTON COUNTY and Andrew Singelakis, Defendants.

No. 3:12–cv–01114–AC.

United States District Court, D. Oregon.

June 7, 2013.

Stephen F. English, Erick J. Haynie, Misha A.D. Isaak, Perkins Coie, LLP, Portland, OR, for Plaintiff.

Christopher A. Gilmore, Office of Washington County Counsel, Hillsboro, OR, for Defendants.

OPINION AND ORDER

MOSMAN, District Judge.

On May 20, 2013, Magistrate Judge Acosta issued his Findings and Recommendation (“F & R”) [31] in the above-captioned case recommending that defendants' motion to dismiss [13] be granted in part and denied in part. Judge Acosta recommended that defendants' motion to dismiss plaintiff's First Claim for Relief be granted, and that plaintiff be given leave to amend the complaint to add factual allegations identifying similarly situated entities that were treated differently by defendants. Judge Acosta recommended that defendants' motion to dismiss plaintiff's Second Claim for Relief be granted, and that the claim be dismissed with prejudice. Judge Acosta recommended that defendants' motion to dismiss plaintiff's Third Claim for Relief be denied. Finally, Judge Acosta recommended that defendants' alternative motion for abstention and a resulting stay be denied. No objections were filed.

DISCUSSION

The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination regarding those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F & R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). While the level of scrutiny under which I am required to review the F & R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F & R. 28 U.S.C. § 636(b)(1)(C).

Upon review, I agree with Judge Acosta's recommendation, and I ADOPT the F & R [31] as my own opinion. I find that Icon's allegations of a restriction on noncommercial and commercial speech sufficiently state a claim for violation of the First Amendment under Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir.2013) and Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), respectively.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

ACOSTA, United States Magistrate Judge.

Introduction

Plaintiff Icon Groupe, LLC, (“Icon”), filed this action alleging defendants Washington County (“County”) and Andrew Singelakis (“Singelakis”)(collectively “Defendants”), violated Icon's constitutional rights to equal protection, procedural due process, and freedom of speech when they failed to grant Icon's applications for permits to erect and maintain seventeen freestanding signs displaying the message “Celebrate the Holiday Safely—Happy Memorial Day”. (Compl. ¶ 11.) Defendants now move to dismiss or, in the alternative, stay this action pending the resolution of related state appellate proceedings. Defendants assert that Icon has failed to allege viable claims based on equal protection, procedural due processes, and freedom of speech violations, and that Icon's due process claim is not ripe.

The court finds that Icon has failed to allege that similarly-situated entities were treated differently in support of the First Claim for Relief, is unable to allege a deprivation of a property interest in support of the Second Claim for Relief, and has adequately alleged a First Amendment violation in the Third Claim for Relief. Accordingly, Defendants' motion to dismiss should be granted with regard Icon's First and Second Claims for Relief, with leave to Icon to add factual allegations identifying similarly-situated entities that were treated differently by Defendants in support of its equal protection claim, and should be denied with regard to Icon's Third Claim for Relief. Further, the court finds that the state court mandamus proceedings will not dispose of the issues raised in this action and that Defendants' alternative motion for abstention and a resulting stay should be denied.

Background

Icon is a sign company engaged in applying for and maintaining freestanding signs within the State of Oregon. (Compl. ¶ 3.) From March to June, 2010, Icon filed seventeen permit applications with the County seeking the approval of freestanding signs to be located in unincorporated potions of the County (the “Applications”). (Compl. ¶ 11.) Because the signs contained the message “Celebrate the Holiday Safely—Happy Memorial Day”, Icon believed they qualified for an exemption from the otherwise applicable size and height restrictions. (Compl. ¶ 14.) The exemption, found at section 414–5.9 of the County Community Development Code (“CDC”) provided that “safety signs” identified as “[d]anger signs, trespassing signs, warning signs, traffic signs, memorial plaques, signs of historical interest, holiday signs, public and service information signs such as rest rooms, mailbox identification, [and] newspaper container identification” were “exempted from development permit requirement[s] and from the standards set forth above; however, a permit may be required as determined by the Building Official.” (Compl. Ex. 2 at 6–7.)

Rather than approve the Applications, Singelakis, the director of the County's Land Use & Transportation Department, denied all of the Applications in two, substantially similar, one-page opinions. (Compl. ¶ 15.) The opinions stated that “Article XI [ sic ], section 8 of the Oregon Constitution precludes application of the content based exemptions cited in the application” and that the proposed signs exceeded the size and height provisions in the applicable zones. (Compl. ¶ 15.) Icon timely appealed the denials to the County's hearings officer, who failed take final action within the 120 days required under Or.Rev.Stat. 215.427(1). (Compl. ¶ 16.) Icon then timely petitioned for writs of mandamus under Or.Rev.Stat. 215.429, asking the Washington County Circuit Court for the State of Oregon to compel the County to approve all of the Applications. (Compl. ¶ 20.)

In a letter opinion issued on January 6, 2012, the state court found that under the plain language of the state statutes relied on by Icon in filing the appeal, and in the absence of evidence that the applications violated any substantive provision of the CDC as it existed at the time the applications were filed, the court was obligated to issue a peremptory writ requiring the County to approve the Applications and issue the requested permits to Icon. (Compl. Ex. 3 at 1.) The state court, assuming that his ruling would be appealed, also addressed the issue of whether Defendants' denial of the Application, based on what they perceived as an unconstitutional regulation, was appropriate. (Compl. Ex. 3 at 1–2.) The state court explained that:

[t]his being a Mandamus decision, the County can only rely on the constitutionality (or unconstitutionality) if by following CDC 414–5.9 the county official having to follow CDC 414–5.9 would either violate that [official']s oath of office or cause the official to be personally liable in some way.

(Compl. Ex. 3 at 1.) Initially, the state court found that Singelakis could not be held personally liable for enforcing the questionable exemption. The state court then reasoned that because the questionable exemption was not unconstitutional on its face, but only as applied by Defendants who considered the contents of the proposed sign messages in deciding that the questionable exemption did not apply, Defendants could not rely on the unconstitutionality of the questionable exemption in denying the applications. (Compl. Ex. 3 at 2.) On June 5, 2012, the court entered a final judgment issuing the peremptory writ. (Compl. ¶ 20.) Defendants appealed the state court ruling and sought to stay enforcement of the judgment pending resolution of the appeal. The appellate court denied Defendants' motion for a stay and Defendants have since issued a few permits under the Applications.

Icon filed this action on June 20, 2012, alleging that Defendants' action violated their equal protection, procedural due process, and freedom of speech rights guaranteed by the United States Constitution. Icon alleges that Defendants' denial of, and failure to take final action on, the Applications are based on Defendants' “discriminatory animus toward Icon and/or the class of similarly situated private sign companies” and “distaste for the for-profit messages that Icon might in the future put on the signs.” (Compl. ¶¶ 17–18.) Icon further generally alleges that Defendants' actions “lacked a rational relationship to a legitimate government interest” and that, “[o]n information and belief, had substantially the same applications been filed by another entity (for example, a nonprofit or civic group), the applications would have been approved.” (Compl. ¶ 17.)

Preliminary Procedural Matter

Icon asks the court to disregard arguments raised by Defendants for the first time in their reply brief. The case relied on by Icon in support of this request addressed a summary judgment motion in which the nonmoving party was not afforded the opportunity to respond to the argument and evidence offered for the first time by the moving party in their reply brief. See Weaving v. City of Hillsboro, No. 10–CV–1432–HZ, 2012 WL 526425, at *15 n. 5 (D.Or. Feb. 16, 2012). The motion presently before the court is a ...