Rd. Space Media, LLC v. Miami Dade Cnty.

Road Space Media, LLC, Plaintiff, v. Miami Dade County, Defendant.

Civil Action No. 19-21971-Civ-Scola

United States District Court for the Southern District of Florida

January 28, 2020

Order on Defendant's Motion to Dismiss

This matter is before the Court on Defendant's motion to dismiss the Plaintiff's Second Amended Complaint. (ECF No. 34.) The Plaintiff filed a response (ECF No. 35) and the Defendant replied (ECF No. 39). Upon review of the record, the parties' briefs, and the relevant legal authority, the Court grants in part and denies in part the Defendant's motion. (ECF No. 34.)

I. Background

Plaintiff Road Space Media, LLC ("Road Space") is a company that specializes in developing and operating signs that are used by businesses for commercial and noncommercial messages. (Second Amended Complaint at ¶ 1, ECF No. 31.) Road Space reached agreements with property owners to post new signs on several parcels in Miami Dade County. (Id. at ¶ 6.) Pursuant to these agreements, Road Space submitted 18 sign permit applications to the County on August 9, 2018. (Id. at ¶ 9.)

According to the Plaintiff's complaint, all 18 applications were approved by the structural and building department but denied by the sign department. (Id at ¶¶ 12-14.) The County denied the applications based solely on the content of the proposed signs. (Id. at ¶ 15.) Road Space then contacted the County to ask about the denials and inquire about the proper procedure to appeal the denials. (Id. at ¶ 20.) On September 11, 2018, Road Space sent a letter to the County requesting an appeal because its diligent research of the Sign Code and other County documents provided no guidance on the proper appeal procedure. (Id. at ¶¶ 22-24.)

After finally communicating with the County and being pointed in the right direction, Road Space delivered 18 appeal packets to the County on February 4, 2019. (Id. at ¶ 39.) Road Space submitted the appeal fee of $1,100.81 but was later informed that this only covered one appeal. (Id. at ¶¶ 39-40.) The total fee for 18 appeals was $23,107.32. (Id. at ¶ 43.) The County informed Road Space that the appeals could not be accepted for failure to pay the required fee and various other shortcomings outlined in a letter dated October 19, 2019. (Id. at ¶¶ 42-45.) According to the Plaintiff, the reasons outlined by the County in its letter are not based on the Sign Code. (Id. at ¶ 44.)

Road Space now sues the County challenging the constitutionality of the sign permitting scheme, the County's Sign Code, the appeals process, and the appellate fee. The County moves to dismiss Road Space's complaint in its entirety.

II. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil Procedure 12(b)(6), must accept all allegations in the complaint as true, construing them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a short and plain statement of the claim showing that the pleader is entitled to relief, a plaintiff must nevertheless articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Faced with a motion to dismiss, a court should therefore "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, 'assume their accuracy and then determine whether they plausibly give rise to an entitlement to relief.'" Am. Dental Ass'n. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009)). "Regardless of the alleged facts, a court may dismiss a complaint on a dispositive issue of law." Surgery Center of Viera, LLC v. Southeastern Surveying and Mapping Corp., No. 17-cv-754-orl-40TBS, 2018 WL 922202, at *3 (M.D. Fla. Jan. 31, 2018) (citations and quotations omitted).

III. Analysis

Each of Plaintiff's counts includes facial and as applied challenges to the County's Sign Code. "When a statute is challenged as facially invalid, a court may entertain such a challenge where every application of the challenged provision may create an impermissible risk of suppression of ideas." Café Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1275, 1281 (11th Cir. 2004). "It is the most difficult challenge to mount successfully because it requires a defendant to show that no set of circumstances exists under which the law would be valid." United States v. Ruggiero, 291 F.3d 1281, 1285 (11th Cir. 2015) (quotations and citations omitted). "As applied claims attack statutes that are legal as enacted, but have been applied in an arbitrary and capricious manner." Jackson v. Okaloosa Cty., 21 F.3d 1531, 1541 n.16 (11th Cir. 1994). "In order for an as applied claim to be ripe, the plaintiff usually must demonstrate that the regulation has been applied to him." Id. Although the Plaintiff does notdistinguish between its as applied and facial challenges, the Court will address each in turn.

A. Count I - Whether the County's permitting mechanism is unconstitutional on its face and as applied to Road Space based on its lack of procedural safeguards

Count I of the Plaintiff's complaint challenges the constitutionality of the Sign Code based on its failure to set reasonable time limits on a County official's decision-making power. (ECF No. 31 at ¶ 75.) Under the Sign Code, if a County official has not made a decision regarding a sign permit application in 30 days, the application is automatically denied. (Id. at ¶ 72.) The Plaintiff claims that the automatic denial does not ensure prompt resolution of a sign application and is therefore unconstitutional. (Id. at ¶¶ 76-78.) In response, the Defendant argues that the automatic denial provision has been upheld by the Eleventh Circuit and is therefore constitutional. (ECF No. 34 at 8.)

As an initial matter, the automatic denial provision has never been applied to Road Space. Indeed, Road Space asserts that its authorized agent, William Benham, received a series of emails from the County informing him that review of the applications had been completed. (ECF No. 31 at ¶ 11.) Mr. Benham received approvals from the Building and Structural Departments and denials by the Sign Department. (Id. at ¶¶ 12-14.) Therefore, the Plaintiff's as applied challenge to the automatic denial provision is not ripe for the Court's review. See Jackson, 21 F.3d at 1541 n.16 ("In order for an as applied claim to be ripe, the plaintiff usually must demonstrate that he regulation has been applied to him."); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 n.20 (11th Cir. 2012) ("The Amended Complaint does not state an as-applied challenge. . . [because] the [law] has not been applied to them."). Accordingly, Plaintiff's as applied challenge in Count I is dismissed.

The Plaintiff, however, may pursue a facial challenge to the automatic denial provision. "A prior restraint on speech exists when the government can deny access to a forum for expression before the expression occurs." Café Erotica of Fla., 360 F.3d at 1282. The Sign Code requires a permit before erecting a new sign, "thereby making it a restraint on speech in advance of its occurrence." Id. To pass constitutional muster, prior restraints must "(1) ensure that permitting decisions are made within a specified time period and must (2) avoid unbridled discretion in the hands of a government official." Id. (citations and quotations omitted). To satisfy the first prong, "an ordinance should contain two procedural safeguards: (1) licensing officials must be required to make prompt decisions, and (2) prompt judicial review must be available to correct erroneous denials." Id. at 1283.

The Plaintiff's claim in Count I focuses on the "prompt decision" requirement.¹ According to the Plaintiff, the automatic denial of a permit after 30 days does not afford prompt decision making. In Café Erotica, the Eleventh Circuit upheld an ordinance that gave the County Administrator "thirty days to deny or approve a fully completed sign application and twenty days to notify the applicant of any deficiencies. Significantly, if the application is not approved or denied within the thirty-day period, the sign is deemed denied." 360 F.3d at 1283 (emphasis added). The Court reasoned that the automatic denial provision ensured that the County Administrator could not delay the permitting process indefinitely. Id. Following the precedent established in Café Erotica, this Court finds that the automatic denial provision does not run afoul of the constitutional requirement that permitting decisions must be made promptly.

In an effort to distinguish Café Erotica, the Plaintiff argues that the Eleventh Circuit upheld the automatic denial provision only because it was coupled with a prompt appeals process. (ECF No. 35 at 5.) The Plaintiff misreads Café Erotica. The Café Erotica court addressed the appeals process as part of the "prompt judicial review" prong and never held that together this framework was acceptable. See Café Erotica, 360 F.3d at 1283. Accordingly, the Court grants the Defendant's motion to dismiss Count I.

B. Count II - Whether the County's appeal mechanism for signs is unconstitutional on its face and as applied to Road Space because it lacks procedural safeguards and is unduly discretionary

Count II challenges the "prompt judicial review" requirement as well as the "no unbridled discretion" requirement. Café Erotica, 360 F.3d at 1283-84. The Plaintiff asserts that it appealed its sign applications on September 11, 2018 and has yet to be given a hearing date. (ECF No. 31 at ¶ 85.) Moreover, the Plaintiff has found itself subject to "an endless series of changing requirements and delays." (Id. at ¶ 86.) The Sign Code does not contain standards or guidelines that the board hearing the appeal is supposed to apply when considering an appeal. (Id. at ¶ 89.)

In response, the...