NATIONAL ADVERTISING CO.

v.

CITY OF MIAMI

JAMES LAWRENCE KING, District Judge.

I. Factual Background

Plaintiff National Advertising Company is a Delaware corporation and a wholly owned subsidiary of Viacom Outdoor Inc., a corporation formerly known as Infinity Outdoor, Inc. National is in the business of erecting and maintaining billboard signs on property it leases. National maintains both commercial and noncommercial messages on billboards that are located throughout the City of Miami.

The City of Miami adopted, thirteen years ago on March⁸, 1990, a comprehensive Zoning Ordinance that is the subject matter of Plaintiffs First Amendment challenge to the constitutionality of the Ordinance. Ordinance No. 11,000

1

divided the City of Miami into²⁴ geographical areas and specified regulations applicable to property located within each area. The Ordinance precisely enumerated the specific public purposes and objectives the City intended and hoped to achieve through the enactment of Ordinance No. 11,000.

2

A grace period of five

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years was provided to Plaintiff, and any other nonconforming billboard or commercial advertising permit holders, with existing structures already erected within which to remove such billboards.

3

National alleges that the Zoning Ordinance changed the City’s zoning classifications, and these reclassified zones had the effect of making “some or all of the offsite signs in the effected zones

4

nonconforming with the Zoning Ordinance.”

5

With the five-year grace period protecting National’s existing billboard structures, things remained relatively quiescent for the next ten years.

In April 2001, the City commenced to enforce the Zoning Ordinance by issuing notices to property owners on whose property National had erected billboard signs. The City notices advised the property owners that they were in violation of “ ‘Article (11) Sections 1107.2.2(a) [sic] Failure

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to Completely Remove a Sign, Billboard, or a Commercial Advertisement from the Subject Property.”’

6

The property owners were told to correct the violations by various deadlines established throughout the month of May 2001, and that failure to do so could result in $500 per day fines, arrest, and closing their businesses, by the City’s Code Enforcement Board.

The Miami City Commission, on July¹⁰, 2001, authorized the City Manager to notice a meeting for July¹⁹, 2001, at which the City Commission could make a finding that companies engaged in outdoor advertising in the City of Miami are notorious outstanding lawbreakers in order to justify its decision to authorize the removal of the billboards without notice, to hold outdoor advertising companies “in contempt of the City Commission, ...”

7

The City served over 100 property owners with summonses to appear before its Code Enforcement Board to respond to charges that the owners had failed to completely remove signs, billboards, or commercial advertisements from their property.

At the hearings

8

, ten of the properties upon which Plaintiff’s billboards were located were found to be in violation of the Ordinance and the signs were ordered removed.

9

Exercising the appellate rights provided by the Zoning Ordinance, all ten property owners appealed the decisions of the City’s Hearing Officers to the County Court in and for Dade County and thereafter, to the Eleventh Judicial Circuit Court of Florida.

10

That court, after the posting of an original appeal bond of $450,000 by Plaintiff granted a stay of the final orders requiring removal of the billboards until such time as the appeal in state court is decided by that court.

II. Procedural Posture

A. National

1

11

On July¹¹, 2001, in response to the

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City’s enforcement proceedings against property owners with whom National had leases to erect and maintain billboards, National filed its three-count Complaint against the City in this Court

12

alleging that the Zoning Ordinance (1) discriminated in violation of the First Amendment and Equal Protection Clause, (2) lacked procedural safeguards in violation of the First Amendment, and (3) the City’s decision to begin immediate removal of the signs without further notice or proceedings violated Due Process and the First Amendment.

13

Three weeks later, National moved for injunctive relief to prevent “the City of Miami (1) from removing any signs owned, leased, or operated by National Advertising ..., (2) from enforcing the City’s sign regulations against any persons or business entities during the pendency of this litigation, and (3) from imposing any fines or filing any hens in conjunction with enforcement of the City’s sign regulations against owners of any property owned by or leased to National Advertising, its parents, affiliates, or subsidiaries.”

14

On August 23rd, 24th and September 20th, the Court held evidentiary hearings on National’s motion. Plaintiffs Motion for Preliminary Injunction was denied pending exhaustion of National’s administrative and appellate remedies guaranteed Plaintiff in the Zoning Ordinance.

15

National appealed and the Eleventh Circuit issued its Mandate on National’s appeal on November²⁶, 2002, vacating and remanding this Court’s Order Denying Motion for Preliminary Injunction and stating that “[bjecause the City summoned the property owners who lease the property to National, rather than National itself, National had no administrative remedies to exhaust.”

16

National filed an Amended Complaint against the City and Miami Dade County (“the County”) on January³⁰, 2003, alleging new claims in addition to the three originally set forth in the Complaint: (1) the City’s refusal to stay the accrual of code enforcement fines discriminates against National on the basis of its exercise of its First and Fourteenth Amendment rights to pursue litigation against the City, (2) the City and the County’s discriminatory acts violate the First Amendment and the Equal Protection Clause, and (3) the City and the County’s lack of procedural safeguards violate the First Amendment. Plaintiff sought another injunction on March 3rd of this year. B.

National II

On February²¹, 2002, National filed the ease referred to as National II

17

in response to the City’s rejection of the seven permit applications for commercial speech advertising billboards National submitted in December, 2001 and January, 2002.

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One of the applications, subsequently resubmitted was granted by the City. On March³, 2003, the parties filed Cross-Motions for Summary Judgment

18

relating to the factual allegations underlying National II. In an attempt to avoid confusion, those Cross-Motions for Summary Judgment are addressed and ruled upon by separate order. III. Overview of Arguments

In the Cross-Motions for Summary Judgment, both National and the City set forth various arguments as to why each is entitled to judgment as a matter of law. In its Motion, the City argues that this Court should enter summary judgment in its favor on the following grounds: (1) National’s claims are not ripe because National has failed to show injury to its First Amendment rights or its advertisers’ First Amendment rights; (2) National has no standing because National has no injury-in-fact, any injury National may have was not caused by the City, and National’s claims are not redressable by this Court; and (3) National’s claims are moot because the ordinance it is challenging has been amended and replaced in its entirety. In its Response, National argues that: (1) National’s claims are ripe; (2) National has First Amendment injury; (3) this Court can redress National’s claims; and (4) National’s claims are not moot as a result of the City’s amendment to the Ordinance.

On the other hand, in its Motion for Summary Judgment, National argues that it is entitled to summary judgment because: (1) the Ordinance abridges the First Amendment by a) discriminating on the basis of content against noncommercial speech, b) discriminating against different types of noncommercial speech, and c) favoring onsite commercial speech over off-site commercial speech; (2) the Ordinance lacks procedural safeguards required for a speech licensing scheme; and (3) the unconstitutional provisions cannot be severed. In its Response, the City argues that National’s Motion should be denied because (1) there are material facts in dispute, (2) the Court lacks subject matter jurisdiction, and (3) the Ordinance does not violate the First Amendment.

IV. Legal Standard

Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c);

See also Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). If the record as a whole could not lead a rational fact-finder to find for the non-moving party, there is no genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). There is no requirement that the trial court make any findings of fact.

Id.

at 251, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact.

Hairston v. Gainesville Sun Publ’g Co.,

Id.

To meet this burden, the non-moving party must go beyond the pleadings and “come forward with significant, probative evidence demonstrating the existence of a triable issue of fact.”

Chanel, Inc. v. Italian Activewear of Florida, Inc.,

931 F. 2d

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1472, 1477 (11th Cir.1991). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the non-moving party, then the Court should refuse to grant summary judgment.

Hairston,

9 F. 3d at 919. A mere scintilla of evidence in support of the nonmoving party’s position, however, is insufficient to defeat a motion for summary judgment.

Anderson,

477 U.S. at 252, 106 S.Ct. 2505. If the evidence is merely colorable or is not significantly probative, summary judgment is proper. Id.

at 249-50, 106 S.Ct. 2505.

V. Analysis

The spirit of the First Amendment is to “protect speech from the dangers of government censorship and to stop the government from suppressing the expression of ideas and public debate through the guise of regulation.”

Granite State Outdoor Adver. v. City of Clearwater, Florida,

213 F. Supp. 2d 1312, 1333 (M.D.Fla.2002) (citing

Ward v. Rock Against Racism,

491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). In its protection of free speech, press and religion, the First Amendment embodies the ideals this country holds dearest to its national consciousness. Since its infancy, these principles have provided the bedrock of our democratic society. Being able to freely express ideas and opinions constitutes the heart of the American character. As such, courts fiercely protect these freedoms from even the slightest of erosion resulting from government intervention and legislation.

However, with every right comes a corresponding responsibility. A recurring issue in jurisprudential history concerns the Supreme Court’s struggle to balance individual rights with the rights of society as a whole. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 300-01 (Kermit L. Hall ed., 1992). Therefore, the courts play an essential role in drawing viable constitutional lines between government regulations and an individual’s right to exercise his First Amendment freedoms. Nonetheless, plaintiffs must not be allowed to manipulate courts’ visceral need to protect the First Amendment. Instead, courts must vigilantly reject arguments intended to pervert that Amendment’s primary purpose.

This case presents a facial challenge on First Amendment grounds to a municipal zoning ordinance by a commercial billboard advertising company. The instant action represents yet another case in what seems to be an ever-increasing trend through which outdoor advertising companies facially challenge municipal ordinances seeking to strike down such ordinances as entirely void.

19

There have been

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a series of cases by billboard companies across the Eleventh Circuit against municipal zoning ordinances raising the. same facial challenges here asserted.

20

Through these actions, advertising companies transform the proverbial First Amendment shield, intended to protect noncommercial speech, into a sword that assures their commercial well-being. The following analysis presents an in-depth examination of the provisions challenged in this case to&#x²⁷; determine whether the City’s Zoning Ordinance “create[s] an unacceptable threat to the ‘profound national commitment .. that debate on public issues should be uninhibited, robust, and wide-open.’ ”

Members of the City Council v. Taxpayers for Vincent, et al.,

466 U.S. 789, 817, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (quoting

New York Times Co. v. Sullivan,

376 U.S. 254, 84 S.Ct. 710, 720-21, 11 L.Ed.2d 686 (1964)).

A. National’s Standing to Assert First Amendment Challenge

In the instant action, National alleges that Ordinance No. 11,000

21

is facially unconstitutional because it impermissibly infringes on the free speech rights of National and its advertisers as guaranteed by the First and Fourteenth Amendments. Specifically, National argues that the City’s threat to remove some of National’s billboards pursuant to its facially unconstitutional sign code constitutes First Amendment injury.

22

National further argues that this Court can redress its injury “[o]nly by striking the City’s Sign Code in its entirety and enjoining its further enforcement.”

23

In its cross-motion, the City argues that National lacks standing because:¹) National has no First Amendment injury because this case is about National’s right to erect billboards wherev-&#x²⁷; er it wants, not speech;²) any alleged injury was caused by National’s refusal to relocate its billboards to areas of the City where they are allowed, not by the City; arid³) National’s alleged injury is not re-dressable by the Court because even if the Court struck the provisions of the City’s Ordinance as facially unconstitutional, National’s billboards would still be illegal under the City’s amended Ordinance and would have to be removed.

24

Article III of the U.S. Constitution limits federal court jurisdiction to the consideration of actual cases and controversies.

Lujan v. Defenders of Wildlife,

504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Part of this case or controversy requirement includes the doctrine of standing, which determines whether a plaintiff is the proper party to bring its claim before the court for adjudication.

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Id.

at 560, 112 S.Ct. 2130;

see also

Erwin Chemerinsky,

Federal Jurisdiction

56 (3rd ed.1999). In

Baker v. Carr,

the Supreme Court cautioned that a plaintiff who is challenging the constitutionality of a state or federal law must have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Thus, in order to have standing, a plaintiff must prove that:¹) it has sustained an injury “of a legally protected interest;”²) a “causal connection [exists] between the injury and the conduct complained of;” and³) the injury is capable of being redressed by the court.

Lujan,

504 U.S. at 560-61, 112 S.Ct. 2130 (citations omitted). Moreover, the plaintiffs injury must be “concrete and particularized, and actual or imminent, not conjectural or hypothetical.”

Id.

at 560, 112 S.Ct. 2130.

However, under the overbreadth doctrine, the Supreme Court has created a limited exception to traditional Article III standing requirements to allow a plaintiff to challenge the “facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others” not before the court.

Metromedia, Inc. v. San Diego,

453 U.S. 490, 505 n. 11, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981);

see also Taxpayers for Vincent,

466 U.S. at 799, 104 S.Ct. 2118. This exception is based on the determination that “First Amendment interests are fragile interests, and. the possible harm to society from allowing unprotected speech to go unpunished is outweighed by the possibility that protected speech will be muted.”

Bates v. State Bar of Arizona,

433 U.S. 350, 381, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). Yet there is always a risk that this exception to the otherwise stringent traditional standing requirements will swallow the general rule.

Taxpayers for Vincent,

466 U.S. at 799, 104 S.Ct. 2118. Accordingly, the Supreme Court has cautioned that the over-breadth doctrine is “manifestly[ ] strong medicine, employed by the Court sparingly and only as a last resort.”

Broadrick v. Oklahoma,

413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Therefore, to allow a plaintiff to attack an otherwise legitimate statute on facial overbreadth grounds, particularly where the statute’s purpose is to regulate conduct and not speech, the overbreadth must be “not only real but

substantial

as well,” such that there is “a

realistic danger

that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.”

Taxpayers for Vincent,

466 U.S. at 799-801, 104 S.Ct. 2118 (emphasis added). The overbreadth doctrine did not, however, “create any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court.”

Id.

at 798, 104 S.Ct. 2118. Thus, the Supreme Court has permitted a commercial billboard company to assert a facial overbreadth challenge to an ordinance only where the company also engaged in a

“substantial amount

of noncommercial advertising.”

Metromedia,

453 U.S. at 504, 101 S.Ct. 2882 (emphasis added).

National Advertising, in this case has, by its own estimate a

de minimis

noncommercial interest. It is an outdoor billboard company publishing commercial advertising on 98% of its structures.

25

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1.

National has standing to challenge the provisions of the Ordinance relating to commercial speech

Because National’s interests in this case are overwhelmingly commercial

26

, National’s standing to challenge provisions of the Ordinance that affect commercial as opposed to noncommercial speech will be examined separately. With regard to commercial speech, National has demonstrated particularized, imminent injury, traceable to the City’s conduct, which can be redressed by the Court. National is a commercial, for-profit billboard advertising company, and a wholly owned subsidiary of the largest advertising company in the United States, Canada, and Mexico.

27

National currently has billboards standing in the City of Miami that, but for the City’s Zoning Ordinance, are presumably there legally.

28

The City has threatened removal of National’s billboards under the Ordinance and has begun enforcement proceedings against property owners to have some of National’s billboards removed. Moreover, this Court has the power to strike and enjoin enforcement of any provisions of the Ordinance found to be unconstitutional. Therefore, this Court finds that National has Article III standing to challenge those provisions of the City’s Zoning Ordinance that restrict commercial speech.

2.

National does not have standing to challenge the provisions of the Ordinance that do not relate to noncommercial speech

National’s standing, under the overbreadth exception to challenge those provisions of the Zoning Ordinance that allegedly unconstitutionally restrict noncommercial speech is a more difficult question.

29

After careful consideration, this Court concludes that National does not have the required substantial interest in noncommercial speech to have any standing to assert challenges on behalf of noncommercial advertisers (if any there be) to the noncommercial provisions of the Zoning Ordinance.

First, the purpose of the City’s Zoning Ordinance, like most municipal zoning ordinances, is to regulate land use within the City of Miami to avoid “unplanned and unregulated urban development.”

30

More specifically, the approximately 800-page

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Zoning Ordinance divides the city into different districts and regulates everything from the height of buildings, to the construction and location of billboards, signs, and other structures, the construction and location of parking lots, the use of water, and the occupancy rates of dwelling units.

31

Since the purpose of the City’s Ordinance is to regulate conduct, not speech, it is unlikely that the overbreadth challenge has any relevancy at all to this case.

Second, National has failed to demonstrate the kind of “substantial over-breadth” contemplated by the Supreme Court that would justify application of the exception in this case. In

Taxpayers for Vincent,

the Supreme Court reiterated that “ ‘the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ ” 466 U.S. at 800, 104 S.Ct. 2118 (quoting

Broadrick v. Oklahoma,

413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). In

Bates,

the Supreme Court further stated that “justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context...&#x²⁷;. Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation.” 433 U.S. at 380-81, 97 S.Ct. 2691. Finally, in

Broad-rick,

eight justices agreed that an over-breadth challenge should not be entertained in every First Amendment case,

32

and the Court concluded that the over-breadth exception, “a limited one at the outset,” becomes less justified as the behavior sought to be regulated “moves from ‘pure speech’ toward conduct.” 413 U.S. at 615, 93 S.Ct. 2908.

Here, National has been engaged in billboard advertising in the City of Miami for approximately forty years,

33

yet Plaintiff has not presented this Court with a single instance where the City has ever infringed on anyone’s noncommercial free speech rights.

34

Thus, National has sustained no injury with regard to its noncommercial speech rights, nor has it demonstrated any “realistic danger” that the Ordinance’s very existence threatens the First Amendment rights of others not before the Court. In fact, the Ordinance National is challenging has been amended and is no longer in effect.

35

While this Court recognizes that a city cannot escape overbreadth review simply by amending its Ordinance,

36

the Court finds it illogical to extend the limited overbreadth doctrine to an Ordinance that cannot chill any speech in the future, and, by all accounts, has not chilled any in the past. There is simply no reason to think that National’s interests in any way parallel those of noncommercial speakers,

37

and this Court hesitates to facially invalidate a zoning ordinance, enacted by the elected officials of the City of Miami to regulate

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the use of land in that city, based on mere prediction and speculation.

38

“[U]nder our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws,”

39

and this Court will not presume to do so here.

Finally, this Court does not read

Me-tromedia

to stand for the proposition that a plaintiff with a

de minimis

interest in noncommercial speech may facially challenge an ordinance raising the noncommercial speech interests of third parties who have not shown any injury and who are not before the Court. Interestingly, however, four out of five of National’s First Amendment challenges to the City’s Zoning Ordinance are on behalf of noncommercial speech interests. Specifically, National’s Complaint alleges that the Ordinance discriminates:

a. Against

noncommercial speech

on the basis of content by allowing on-site commercial outdoor advertising signs while prohibiting non-commercial outdoor advertising signs at the same sites.

b. Against

noncommercial speech

on the basis of content by prohibiting noncommercial signs generally, but allowing some noncommercial signs.

c. Against

noncommercial speech

on the-basis of content by exempting some noncommercial signs from licensing altogether. d. Against

noncommercial speech

on-the basis of content by imposing more restrictive size, height, and spacing requirements on some noncommercial signs than on others on the basis of content.

e. Against-

commercial offsite signs

by banning most such signs.

f. Against all signs on the basis of the zone in which they are located.

40

In the instant case, National’s Vice President, Joseph H. Little, testified that National’s billboard displays are “largely commercial,” and noncommercial advertising constitutes only “[pjerhaps two percent” of National’s total advertising budget.

41

Even if two percent of National’s billboards in the City of Miami contain noncommercial messages, this Court concludes that two percent does not constitute a “substantial amount,” as mandated as an absolute prerequisite to invoking the over-breadth exception.

42

National’s counsel relies, heavily upon the little. understood footnote from the plurality opinion in

Me-

*1362

tromedia

holding: “we have never held that one with a ‘commercial interest’ in speech also cannot challenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interest of others.” 458 U.S. at 505 n. 11, 101 S.Ct. 2882. The doctrine of standing in First Amendment billboard cases is unclear at best.

See Lamar Adver. Co. v. City of Douglasville,

254 F. Supp. 2d 1321, 1327 n. 3 (N.D.Ga.2003) (citing numerous eases that note the uncertain state of the law in this area). Counsel’s reading of this quoted footnote from

Metromedia

is a basis for his interpretation that even a

de minimis

two percent noncommercial speech publication by a commercial billboard advertising company gives National herein an almost absolute right to raise all the noncommercial First Amendment challenges to a city ordinance that would be otherwise available to noncommercial speakers. This is the authority, counsel urges, giving National the right to the overbreadth exception and the consequent noncommercial challenges National has raised.

It defies logic and all reasonable interpretation of the language of

Metromedia

referred to above (relied upon by National) where the Supreme Court has simply said that it has not yet determined that an entity with a commercial interest can

never

raise a First Amendment challenge to the facial validity of a statute, into a legal principal that even a slight

{de minimis)

interest in noncommercial speech by a overwhelmingly proportionate commercial speech billboard company thus giving it the right to take up the sword on behalf of noncommercial advertisers (if any) in the battles they fight to protect their commercial interests. Therefore, this Court finds that National cannot raise a facial over-breadth challenge to the City’s Zoning Ordinance.

B.

Content-Based v. Content-Neutral

At the heart of this case lies the debate over whether the Zoning Ordinance at issue constitutes an impermissible content-based regulation, or a constitutionally sound content-neutral zoning regulation. National argues that the Zoning Ordinance is a facially unconstitutional content-based ordinance that cannot survive strict scrutiny as a result of provisions that favor (1) commercial over noncommercial speech;

43

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(2) some noncommercial over other noncommercial speech;

44

and (3) onsite commercial over offsite commercial speech.

45

On the other hand, the City asserts that the Ordinance is simply a content-neutral zoning regulation intended to prevent the

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construction of billboards in certain areas throughout the City; namely, restricted commercial and residential zoning districts.

46

With regard to whether an ordinance is content-based or content-neutral, the Supreme Court has stated as follows:

The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is “justified without reference to the content of the regulated speech.”

Ward v. Rock Against Racism,

491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting

Clark v. Community for Creative Non-Violence,

468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (internal citations omitted)). Furthermore, the Eleventh Circuit has noted that in evaluating facial challenges to an ordinance, courts must attempt to construe any ambiguities “in a manner which avoids constitutional problems.”

Southlake Prop. Assoc., Ltd. v. Morrow, Georgia,

112 F. 3d 1114, 1119 (11th Cir.1997) (citing

American Booksellers v. Webb,

919 F. 2d 1493, 1500 (11th Cir.1990)). In the following analysis, the Court evaluates each of National’s arguments and finds that the City’s Zoning Ordinance constitutes a constitutionally permissible content-neutral regulation intended to regulate structures rather than to suppress speech.

1.

Commercial Speech

— Constitution

ality

In addition, National argues that this Court should strike down the Zoning Ordinance as an unconstitutional content-based regulation because of its different treatment of offsite and onsite commercial speech.

47

As the basis for this argument, National cites to provisions in the Ordinance that allow onsite commercial signs but prohibit offsite commercial signs.

48

See supra

note⁴⁵ Specifically, National argues that because of the way the Ordinance defines “onsite” and “offsite” signs, this distinction results in greater protection being offered to onsite commercial signs, e.g., a drugstore advertising “Bayer Aspirin,” as opposed to offsite commercial signs, e.g., a billboard above a drugstore advertising “Goodyear Tires.”

A casual review of First Amendment precedent reveals the judicial consensus that commercial speech is not accorded the same level of protection as noncommercial speech. In

Ohralik v. Ohio State Bar Assn.,

the Supreme Court stated:

To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the [First] Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate

*1365

with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.

436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Subsequently, the Court set forth the following four-part test for analyzing the validity of a governmental regulation of commercial speech: (1) the only commercial speech subject to protection is that which concerns lawful activity and is not misleading; (2) a valid regulation must assert a substantial governmental interest; (3) the regulation must directly advance the governmental interest asserted; and (4) the regulation is no more extensive than necessary to achieve that interest.

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n,

447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

A year later in

Metromedia,

the Supreme Court specifically addressed one of the questions National brings before this Court; namely, whether a city can constitutionally regulate commercial speech through an onsite-offsite distinction. 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800. The ordinance in

Metromedia

permitted onsite commercial advertising,

49

“but other commercial advertising and noncommercial communications using fixed-structure signs [were] everywhere forbidden unless permitted by one of the specified exceptions.”

50

Id.

at 496, 101 S.Ct. 2882. The city’s purpose in passing such an ordinance was to further “traffic safety and the appearance of the city.”

Id.

at 507, 101 S.Ct. 2882.1 The plaintiff, a billboard company, challenged the ordinance on the grounds that it would eliminate the outdoor advertising business in San Diego and that this violated the First and Fourteenth Amendments.

Id.

at 503-04, 101 S.Ct. 2882

In addressing plaintiffs claims, the Court applied the four-prong

Central Hudson

test and stated that “[t]here can be little controversy over the application of the first, second, and fourth criteria.”

Id.

at 507, 101 S.Ct. 2882. First, the Court indicated that there was no evidence that the commercial speech at issue was either misleading or involved unlawful activity

Id.

Next, the Court stated that there could not be “substantial doubt that the twin goals that the ordinance seeks to further — traffic safety

51

and the appearance of the

*1366

city

52

— are substantial governmental goals.”

Id.

at 507-08, 101 S.Ct. 2882. As to the fourth prong, the Court explicitly rejected the plaintiffs argument that the ordinance was overly broad, stating:

If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its end: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs.

Id.

at 508, 101 S.Ct. 2882.

Finally, the Court turned its analysis to the third prong, what is considered the “more serious question,” and reasoned as follows:

In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the state objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is under-inclusive because it permits onsite advertising. Second, the city may believe that offsite advertising, with [its] periodically changing content, presents a more acute problem than does onsite advertising. Third, San Diego has obviously chosen to value one kind of commercial speech — onsite advertising more than another kind of commercial speech — off-site advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city’s interest in traffic safety and esthetics. The city has decided that in a limited instance — onsite commercial advertising — its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise — as well as the interested public — has a stronger interest in identifying its place of business and advertising the product or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere.

It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising.

*1367

Id.

at 511-12, 101 S.Ct. 2882 (emphasis added). Therefore, the Court held that “[i]n light of the above analysis, we cannot conclude that the city has drawn an ordinance broader than is necessary to meet its interest, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of

Central Hudson

....”

Id.

at 511-12, 101 S.Ct. 2882.

Here, National seeks to divert this Court’s attention from binding Supreme Court precedent laid out in

Metromedia

by arguing that the City’s Zoning Ordinance fails to pass muster under the

Central Hudson

test in light of two recent Supreme Court opinions:

Edenfield v. Fane,

507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) and

Greater New Orleans Broad. Ass’n v. United States,

527 U.S. 173, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999).

53

First, National argues that pursuant to Edenfield,

54

the city’s asserted interests in traffic safety and esthetics are not directly advanced by the Ordinance and therefore, do not meet the third prong of

Central Hudson

because the City “cannot justify [its] ban on offsite signs.”

55

Next, National argues that pursuant to

Greater New

Orleans,

56

the City has not carefully calculated the costs and benefits associated with implementation of the Ordinance and, as such, the Ordinance does not satisfy the fourth prong of the

Central Hudson

test.

(Id.)

However, after carefully analyzing

Edenfield

and

Greater New Orleans

in light of the facts of the instant case, this Court finds that National’s reliance on those opinions is misplaced. The Supreme

*1368

Court struck down the legislation in those cases because either (1) the interests set forth were not directly advanced by the statute in question,

57

or (2) the statute was overly broad.

58

However, both cases are factually distinguishable from the instant case in that the government’s asserted interests in those cases are unrelated to the interests the City of Miami asserts as justification for the Zoning Ordinance.

See swpra

note⁵⁴;

See supra

note 56. Therefore, this Court finds that its application of the

Central Hudson

test must be guided by

Metromedia,

rather than

Edenfield

and

Greater New Orleans,

because the facts in

Metromedia

are parallel to the facts in this case.

Here, like in

Metromedia,

the City is enforcing an Ordinance that effectively bans offsite commercial speech while allowing onsite commercial speech in order to promote traffic safety and esthetics. National is arguing, like the plaintiff in

Metromedia,

that this disparity results in some commercial speech — onsite commercial — being favored over other commercial speech — offsite commercial. However,

Metromedia

explicitly held that this disparity is allowed. Yet, National reasserts the arguments set forth by the plaintiff and rejected by the Court in

Metromedia

that the Ordinance must be struck down as unconstitutional because it fails to pass muster under the third and fourth prongs of

Central Hudson.

As to the third prong, National argues that the Ordinance does not directly advances its stated interests because the City has not provided evidence showing that billboards are connected to traffic safety and esthetics, or that offsite signs are harmful at all. However, National fails to recognize that the reasoning in

Metrome-dia

explicitly rejects this argument. Here, among the¹⁴ specified purposes of the Ordinance,

59

the City asserts a desire to ensure traffic safety and “provide a wholesome, serviceable, and attractive community.” Miami, Fla., Zoning ORDINANCE § 120 (1991). Contrary to National’s argument, this Court does not find that the City must conduct expensive research to conclude that offsite commercials signs pose a threat to traffic safety and esthetics. On the contrary, this Court hesitates, as the Supreme Court in

Metromedia

hesitated, to question or challenge the reasonable conclusion of the City’s local legislators that offsite signs pose a threat to traffic safety.

See Metromedia,

453 U.S. at 509, 101 S.Ct. 2882. Moreover, similar to the

Metromedia

Court, this Court finds that it is not unreasonable for those lawmakers to conclude that offsite signs in themselves constitute an esthetic harm wherever they are located or placed.

60

See id.

at 510, 101 S.Ct. 2882. Therefore, this Court concludes that the Zoning Ordinance at issue directly advances the City’s interests in maintaining traffic safety and esthetics by prohibiting offsite signs.

Finally, as to the fourth prong, this Court disagrees with National’s argument that the Ordinance must indicate that the City carefully calculated the costs and benefits associated with prohibiting offsite signs.

See

discussion

supra.

The fourth prong of

Central Hudson

requires that the ordinance be no more extensive than necessary to achieve its interests. 447 U.S. at 566, 100 S.Ct. 2343. Here, the City of

*1369

Miami has concluded that offsite signs pose a threat, and it has directly banned those signs. Following the Supreme Court’s reasoning in

Metromedia,

this Court finds that the City’s failure to also ban onsite commercial signs does not cause the Ordinance to be overly broad. On the contrary, the City of Miami, just like the city in

Metromedia,

has “gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs.”

Metromedia,

453 U.S. at 508, 101 S.Ct. 2882. Thus, this Court concludes that the Ordinance is no more extensive than necessary to achieve the City’s stated purposes.

Accordingly, this Court finds that the Zoning Ordinance, as it relates to onsite-offsite commercial signs, is constitutional pursuant to the

Central Hudson

test because: (1) there is no evidence indicating that the commercial speech at issue concerns unlawful activity or is misleading; (2) the Ordinance asserts the substantial governmental interests of maintaining traffic safety and esthetics; (3) the Ordinance directly advances these governmental interests by banning offsite signs; and (4) the Ordinance is no more extensive than necessary to achieve the states interests even though it allows onsite signs.

2.

The Zoning Ordinance does not unconstitutionally discriminate against noncommercial speech

This Court has clearly and unequivocally held that National does not have standing to assert a facial challenge to the provisions of the Ordinance that affect noncommercial speech, because it lacks a “substantial interest” in such speech.

See

discussion

supra

Part V.A.2. However, because of the lack of clarity in First Amendment case law, this Court has carefully analyzed the provisions of the Zoning Ordinance that affect noncommercial speech. After careful consideration, the Court concludes that those provisions of the Ordinance affecting noncommercial speech do not constitute an unconstitutional content-based restriction, rather the Ordinance is a content-neutral regulation that governs structures rather than restricts speech.

a.

Noncommercial Speech v. Commercial Speech

National claims that the City’s Zoning Ordinance is an unconstitutional content-based regulation that favors commercial speech over noncommercial speech. In support of this argument, National cites to provisions in the Ordinance that allow on-site signs and prohibit offsite signs.

See supra

note 43. One of the provisions National is challenging regulates signs in the C-l Restricted Commercial zoning district, and contains similar language as some of the other challenged provisions:

Onsite signs only shall be permitted in these districts, subject to the following requirements and limitations. Except as otherwise provided, such signs may be illuminated but shall not be animated or flashing. At retail or service establishments, in addition to identifying the principal business, commodity or service, such signs may devote not more than half of their actual aggregate to the advertising of subsidiary products sold or services rendered on the premises.

Miami, Fla. Zoning Ordinance § 401 at 128. The Ordinance defines onsite signs as “[a] sign relating in its subject matter to the premises on which it is located,

or

to products, accommodations, services, or activities on the premises. Onsite signs shall not be construed to include signs erected by the outdoor advertising industry in the conduct of the outdoor advertising business.”

Id. § 2502 at 713 (emphasis added). Relatedly, the Ordinance defines off-

*1370

site signs as “[a] sign other than an onsite sign. The term includes,

but is not limited to,

signs erected by the outdoor, advertising industry in the conduct of the outdoor advertising business.”

Id. § 2502 at 712 (emphasis added).

The Eleventh Circuit has specifically considered whether an ordinance that prohibits offsite signs and allows onsite signs unconstitutionally discriminates against noncommercial speech.

Southlake,

112 F. 3d 1114. In

Southlake,

the plaintiff sought to erect four offsite outdoor advertising billboards in the City of Morrow.

Id.

at 1115. Morrow’s sign ordinance prohibited billboards, defined as any “sign which advertises a commodity, product, service, activity or any other person, place, or thing, which is not located, found or sold on the premises upon which the sign is located.”

Id.

at 1115, 1117. The plaintiff claimed that the ordinance was facially unconstitutional because (1) it impermissi-bly regulated commercial speech, and (2) it unconstitutionally burdened noncommercial speech through its onsite-offsite distinction.

Id.

at 1115.

In analyzing the plaintiffs claim, the Eleventh Circuit asserted that the onsite-offsite distinction in the commercial speech context is straightforward, readily ascertainable, and constitutional.

Id.

(citing

Metromedia,

453 U.S. at 512, 101 S.Ct. 2882). On the other hand, the court noted that “[l]ocating the site of noncommercial speech ... is fraught with ambiguity” because “[njoncommercial speech usually expresses an idea, an aim, an aspiration, a purpose, or a viewpoint. Where is such an idea located? What is the site upon which the aspiration is found?”

Id.

at 1119. In wrestling with this ambiguity, the court considered and unambiguously rejected the First Circuit’s reasoning in

Ackerley

that “ ‘[t]he only signs containing noncommercial messages that are [onsite] are those relating to the premises on which they stand, which inevitably will mean signs identifying nonprofit institutions.’ ”

Id.

(quoting

Ackerley Communications of Mass., Inc. v. City of Cambridge,

88 F. 3d 33, 37 (1st Cir.1996)). The Eleventh Circuit noted that the

Ackerley

view unduly restricts onsite noncommercial speech to places where “some organized activity associated with the idea espoused is located or found.”

61

Id.

In fact, the court reasoned that application of the view espoused in

Ackerley

would mean that any ordinance prohibiting offsite signs would ban, with few exceptions, all noncommercial messages, and must then be declared void.

Id.

The court warned that this result is contrary to the well-established notion that when evaluating facial challenges to an ordinance, any ambiguities must be construed “in a manner which avoids any constitutional problems.”

Id.

(citing

American Booksellers v. Webb,

919 F. 2d 1493, 1500 (11th Cir.1990) and

EEOC v. Southwestern Baptist Theological Seminary,

651 F. 2d 277, 285 (5th Cir.1981)).

In evaluating the

Ackerley

view, the Eleventh Circuit concluded that “[t]here is ... no logical reason to interpret the ordinance as locating the expression of ideas, aspirations, and beliefs in this way.”

Id.

at 1117. Instead, the Eleventh Circuit espoused its own alternative view and stated that “[a]n idea, unlike a product, may be viewed as located wherever the idea is expressed, i.e., wherever the speaker is located. Under this alternative view,

all noncommercial speech is onsite. A sign bearing a noncommercial message is on-site wherever the speaker places it.” Id.

at

*1371

1117-18 (emphasis added). The Eleventh Circuit then applied this alternative view to the Morrow ordinance and stated as follows:

Although Morrow’s definition of billboard does not explicitly exclude noncommercial speech it defines billboards as a sign containing an offsite message. Under the [Eleventh Circuit’s] alternative view of the onsite-offsite distinction, a ‘billboard’ would not include a sign carrying a noncommercial message. Offsite noncommercial signs, therefore, would not be prohibited. This result is consistent with Morrow’s enforcement of its ordinance.

Id.

at 1119. Thus, the Eleventh Circuit upheld the Morrow ordinance, and reasoned that the onsite-offsite distinction does not impermissibly restrain noncommercial speech because “[t]he definition of billboard as an offsite advertising sign does not include noncommercial speech as such speech is onsite.”

Id.

National would like this Court to disregard the binding precedent set forth by the Eleventh Circuit in

Southlake,

and instead enter judgment as a matter of law for National pursuant to the First Circuit’s rationale in

Ackerley

and three decisions

62

rendered by other judges in this district.

63

However, National fails to recognize that its reliance on

Ackerley

and the three district cases is misplaced. As explained above, the Eleventh Circuit has explicitly rejected the First Circuit’s reasoning in

Ackerley

that noncommercial speech is almost always offsite, and instead unambiguously adopted the

opposite view

that all noncommercial speech is onsite.

Southlake,

112 F. 3d at 1118-19.

Moreover, National’s reliance on Judge Middlebrooks’s opinion, in

Florida Outdoor Adver., LLC v. Boynton Beach,

182 F. Supp. 2d 1201 (S.D.Fla.2001), Judge Ungaro-Benages’s Omnibus Order in

Wilton Manors Street Sys. v. Wilton Manors,

No. 00-6186-CIV-UNGARO, 2000 WL 33912332 (S.D.Fla. Dec.⁵, 2000), and Judge Zloeh’s Omnibus Order in

Coral Springs Street Sys. v. Sunrise, Florida,

No. 01-7951-CIV-ZLOCH, 2003 WL 22351111, — F. Supp. 2d - (S.D.Fla. Feb.²¹, 2003), is also misplaced. In its current Motion, National argues that this Court should strike down the City’s Zoning Ordinance as unconstitutional on the basis that Judges Middlebrooks, Ungaro-Benages, and Zloch, in cases dealing with sign codes “which contained very similar provisions to the City’s Sign Code provisions at issue,” found such codes to be facially unconstitutional.

64

After reviewing of these opinions, this Court notes that not one of them references

Southlake,

perhaps because the parties failed to bring it to the courts’ attention. Nonetheless, this Court concludes that clear and concrete parallels cannot be drawn between the sign codes in each of these cases and the Zoning Ordinance in the instant case.

65

Each sign code and

*1372

zoning ordinance contains specific and precise language. In considering facial challenges to an ordinance, a court’s interpretation of the ordinance’s constitutionality, or lack thereof, turns on that language. When evaluating such challenges on First Amendment grounds, each court must render decisions on a case-by-case basis, after careful consideration of the specific provisions of the ordinance in question. As a result, this Court is not dissuaded from applying its own interpretation of

South-lake

to the facts of the instant case merely because Judges Middlebrooks, Ungaro-Benages, and Zloch (whose opinions in those cases make no reference to

South-lake

) found that the language of the individual sign codes in their cases violated the First Amendment.

Thus, contrary to National’s contention, this Court must rely upon and apply the reasoning espoused in

Southlake

because the case is binding and directly on point in the instant case. Here, like the plaintiff in

Southlake,

National argues that the Zoning Ordinance is unconstitutional because its ban of offsite signs prohibits noncommercial messages from being displayed.

66

The Ordinance defines an offsite sign as “a sign other than on onsite sign.” Miami, Fla., Zoning ORDINANCE § 2502 at 712. The definitions of onsite and offsite signs are ambiguous in that the signs are not qualified by their commercial or noncommercial nature.

See Id.

at 712, 713. However, according to the Eleventh Circuit’s reasoning in

Southlake,

“all noncommercial speech is onsite.” 112 F. 3d at 1117-18.

Therefore, this Court finds that: (1) the Ordinance’s ban against offsite signs cannot be read to mean that noncommercial messages are prohibited because noncommercial speech is always onsite; and (2) the definition of onsite signs can be read to include noncommercial messages, so that the provisions providing for “onsite signs only” specifically allow noncommercial messages. This construction interprets all ambiguities in a manner that avoids constitutional infirmities and as such is in accordance with the Eleventh Circuit’s holding in

Southlake.

Accordingly, this Court upholds the Zoning Ordinance’s prohibition of offsite signs because its onsite-offsite distinction does not unconstitutionally favor commercial speech over noncommercial speech.

b.

The Zoning Ordinance does not unconstitutionally discriminate between different types of noncommercial speech

In addition, National argues that the Zoning Ordinance is void because⁵⁷ different provisions throughout the Ordinance unconstitutionally favor some forms of noncommercial speech over others.

See swpra

note 44. These provisions can be divided into two separate groups: (1) provisions regulating signs in the various zoning and special districts (“the regulations”), and (2) provisions exempting certain signs from the permitting process (“the exemptions”).

67

See infra

note 71.

*1373

(i)

The regulations do not unconstitutionally favor different types of noncommercial speech

National cites

Metromedia

in support of its challenge to the regulations. However, the facts and holding of

Metromedia

are easily distinguishable from the instant ease. As discussed above, the ordinance in

Metromedia

prohibited all offsite noncommercial messages, but delineated¹² specific exceptions.

68

453 U.S. at 494-96, 514, 101 S.Ct. 2882. The Supreme Court found the exceptions unconstitutional.

Id.

at 514, 101 S.Ct. 2882. In so doing, the Court noted that except for the¹² types of signs specifically allowed, “[n]o other noncommercial or ideological signs meeting the structural definition [were] permitted, regardless of their effect on traffic safety or esthetics.”

Id.

Thus, the Court held that the ordinance violated the First Amendment because “[although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests.”

Id.

at 514, 101 S.Ct. 2882.

Here, unlike in

Metromedia,

the Ordinance does not specifically ban noncommercial speech. On the contrary, in light of

Southlake,

the Ordinance’s allowance of onsite signs specifically provides for noncommercial messages.

See supra

Part V.B.2.a. Nevertheless, the City may constitutionally limit the size and placement of sign

structures

so long as the signs are not restricted based on their content or viewpoint. This Court has carefully reviewed the challenged provisions and concludes that the provisions regulating sign structures in the various districts (i.e., section 401 and Article⁹) are content-neutral zoning regulations intended to regulate structures, rather than to suppress speech. The C-l Restricted Commercial district is one of the numerous zoning districts that is regulated by the provisions set forth in section 401.

69

In the C-l district sign

*1374

structures have certain height, square footage and placement requirements.

See swpra

note 54. There is no indication that the challenged portions of section 401 and Article⁹ restrict the content of the sign structures. Therefore, unlike the exceptions in

Metromedia,

the challenged provisions in this case do not exempt certain signs from an otherwise total ban.

In further support of this challenge to the regulations, National targets the provisions of the Ordinance relating to the temporary placement of political and civic campaign signs. National argues that it is unconstitutional for the Ordinance to allow those signs but disallow other noncommercial messages. However, this Court does not interpret the Ordinance to mean that temporary political and civic campaigns signs are the only noncommercial signs allowed in those districts. Instead, the Ordinance merely requires removal of such signs upon the conclusion of the relevant election. Therefore, this Court finds that these provisions restrict rather than empower speech related to political and civic campaigns by requiring their prompt removal at a certain point in time.

Even though this interpretation of the provisions now appears to restrict political speech, at least two courts have held that a city may constitutionally set a reasonable time limit for residents to remove election-related signs after the conclusion of an election.

Granite State Outdoor Adver.,

218 F. Supp. 2d at 1387;

see also Collier v. City of Tacoma,

121 Wash.2d 737, 854 P. 2d 1046, 1057 (1993). This finding is justified by the fact that political and civic campaign signs cease to exist as speech at the conclusion of the election.

70

Therefore, cities may constitutionally enforce such removal requirements in order to advance esthetic interests, which is exactly the case here.

Accordingly, this Court finds that the provisions regulating signs in the various zoning districts (e.g., section 401 and Article⁹) do not unconstitutionally favor commercial over noncommercial speech.

*1375

(ii)

The exemptions do not unconstitutionally express a preference for certain types of noncommercial speech over others

National cites the exemption provisions

71

to support its argument that the Ordinance favors some noncommercial messages over others. However, binding Eleventh Circuit precedent requires the Court to reject this argument.- In

Messer v. City of Douglasville,

the Eleventh Circuit upheld a permit exemption scheme

72

that was very similar to the scheme at issue in this case. 975 F. 2d 1505, 1511 (11th Cir.1992). In that case, the plaintiff argued that, as in

Metromedia,

“the [Douglasville] ordinance distinguished] between different types of noncommercial messages, and

exempted] certain noncommercial messages from permitting requirements

based on their content, resulting in an unconstitutional content-based restriction on the noncommercial messages not so exempted.”

Id.

at 1512 (emphasis added). In analyzing the plaintiffs argument, the court noted that in

Metromedia

the “plurality struck the San Diego ordinance because it had a system of exceptions to the general ban on non-commercial billboards which violated the First Amendment.”

Id.

at 1512. However, the court distinguished the exemptions in

Messer

by stating that “the Douglasville exemptions are not exemptions from a general ban of all off-premise billboards, but from permitting requirements and permits fees.”

Id.

at 1513. Moreover, the court stated that the exemptions do not express a preference between different types of noncommercial messages, and in fact “favor[ ] noncommercial over commercial messages by expressly • deregulating messages by noncommercial speakers.”

Id.

Here, like the ordinance in

Messer,

exemption from the permitting process does not constitute an exception to a general ban of noncommercial messages.

See supra

note 71. Therefore, in accordance with

Messer,

this Court rejects National’s arguments with regard to all but one of the permit exemptions.

The lone permit exemption not explicitly protected by

Messer

is the exemption for temporary political and civic campaign signs.

73

See supra

note 71. Political speech lies at the core of the First Amendment and is afforded its broadest protection.

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 346-47, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (quoting

Roth v. United States,

354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957));

see also Buckley v. Valeo,

424 U.S.¹, 14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). To re

*1376

quire permits&#x²⁷; for campaign related signs would ignore the substantial time pressure that pervades every campaign. Thus, it&#x²⁷;is only by allowing this speech to appear-in an accelerated fashion that the Ordinance is able to give such speech the protection it warrants. Had the City required permits for these temporary signs, citizens would undoubtedly have sued the City for violating their First Amendment rights to political speech. If this Court accepts National’s argument and strikes the permit exemption for temporary, political and civic campaign signs, the Ordinance would accord First Amendment rights less protection, not more.

Accordingly, this Court finds that the permit exemption scheme as set forth in the Ordinance does not unconstitutionally favor some forms of noncommercial speech over other. Rather, the Ordinance as it now stands gives the core of First Amendment speech the protection it deserves.

3.

The Ordinance is a constitutional content-neutral zoning ordinance intended to regulate structures, not speech

National argues that this Ordinance must be struck down as an unconstitutional content-based restriction on speech pursuant to the Supreme Court’s reasoning in

Metromedia,

the seminal case involving First Amendment issues and billboard signs. This Court disagrees. There is no question that First Amendment precedent, including

Metromedia,

clearly establishes the general rule that the government cannot “regulate speech&#x²⁷;in ways that favor some viewpoints or ideas at the expense of others.”

Taxpayers for Vincent,

466 U.S. at 804, 104 S.Ct. 2118. However, this general rule is not applicable in cases where “there is not even a hint of bias or censorship in the [e]ity’s enactment or enforcement of [the] ordinance.”

Id.

This is particularly true where “[t]he text of the ordinance is neutral-indeed it is silent-concerning any speaker’s point of view ....”

Id.

Instead, such viewpoint neutral ordinances must be evaluated pursuant to the framework set forth in

United States v. O’Brien,

891 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and reaffirmed in

Taxpayers for Vincent,

466 U.S. at 804-05, 104 S.Ct. 2118, a

post-Metromedia

opinion. In

O’Brien,

the Court held that a viewpoint-neutral ordinance is constitutional if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) any incidental restriction on First Amendment rights is no greater than what is essential to further that interest. 391 U.S. at 377, 88 S.Ct. 1673.

After carefully considering each of National’s arguments, this Court concludes that the City’s Zoning Ordinance constitutes a content-neutral regulation intended solely to regulate structures, not to suppress speech. Here, the language of the Ordinance sets forth specific objectives the City set out to attain through its implementation. The Ordinance delineates the different zoning regulations applicable in each district and the various zoning procedures and processes governing application of those regulations. Thus, in light of the previous in-depth analysis, this Court finds that none of the provisions express even a hint of viewpoint bias or discrimination, and therefore the Ordinance constitutes a content-neutral regulation.

Moreover, the Ordinance passes constitutional muster under the

O’Brien

test as a content-neutral regulation. First, there is no question that the City can constitutionally enact and enforce a zoning ordinance intended to regulate land use within its boundaries. Next, the previous analysis clearly establishes that the second and third prongs of the

O’Brien

test are satis

*1377

fied.

See

discussion

supra

Parts V.B.1-2. Specifically, the City has a substantial interest in maintaining traffic safety and promoting aesthetics and these interests are entirely unrelated to the suppression of speech.

74

See Metromedia,

453 U.S. at 507-08, 101 S.Ct. 2882;

see also supra

note. Moreover, by regulating the size, placement, and structural requirements of buildings and sign structures, the City is directly advancing those interests that are entirely unrelated to the suppression of speech. Finally, this Court finds that the effect that the Ordinance does have on speech, particularly offsite commercial speech, is no greater than necessary to accomplish the City’s purposes. The City has determined that offsite billboards constitute a traffic safety hazard and an esthetics problem in specified zoning districts throughout the City of Miami. The Supreme Court in

Metromedia

clearly held that a city has a right to arrive at such conclusion. 458 U.S. at 511-12, 101 S.Ct. 2882. Here, the tangible medium of expression (i.e., billboards), rather than the content of the billboard, is what constitutes the problem. Thus, the provisions in the Ordinance that prohibit such billboards in certain areas aim only to promote the City’s interests in traffic safety and esthetics, and are no broader than necessary to achieve that end.

See supra

Part V.B.3. The City has determined that its interests should yield only to onsite commercial speech and noncommercial speech, and the Supreme Court has condoned such a determination.

See Metromedia, 453

U.S. at 511-12, 101 S.Ct. 2882. Accordingly, this Court finds that the Zoning Ordinance constitutes a constitutional content-neutral zoning regulation.

4.

National’s challenge that the Ordinance lacks procedural safeguards

Lastly, National argues that the Ordinance is a classic speech licensing scheme that must be struck down as unconstitutional because it lacks (1) clarity with regard to the discretion of the City officials, and (2) the necessary procedural safeguards set forth in

Freedman v. Maryland,

380 U.S.⁵¹, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).

75

In

Freedman,

the Supreme Court struck down a state law that required motion pictures to obtain a license prior to release. 380 U.S. at 58, 85 S.Ct. 734. The Board that issued the licenses had the exclusive authority to deny a license on the basis that the film was “obscene” or “ ‘tend[ed], in the judgment of the Board, to debase or corrupt morals or incite to crimes.’ ”

Id.

at 58, n. 2, 85 S.Ct. 734. In that case, the Court explicitly held that for such a speech licensing scheme to be constitutional, it must have the following procedural requirements in place: “(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.”

FW/PBS, Inc. v. Dallas,

493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (citing

Freedman,

380 U.S. at 58-60, 85 S.Ct. 734.) However, in

Thomas v. Chicago Park Dist.,

the Supreme Court clearly stated that the stringent requirements set forth in

Freedman

do not apply when a permit scheme is content-neutral because such schemes are less threatening to the First Amendment. 534 U.S. 316, 122 S.Ct. *1378

775, 779, 151 L.Ed.2d 783 (2002). Instead, the Court held that for such a scheme to be constitutional, it need only (1) limit the discretion of the licensing officer, and (2) render that decision “subject to effective judicial review.”

Id.

at 780 (citing

Niemotko v. Maryland,

340 U.S. 268, 271, 71 S.Ct. 325, 95 L.Ed. 267 (1951)).

Here, the Ordinance at issue is a content-neutral zoning regulation that regulates structures, not speech.

See supra

Part V.B.3. Its permit scheme aims to enforce the various structural requirements (e.g., height, lighting, square footage, etc.) set forth in the Ordinance, but does not regulate the speech that can be displayed on structures on the basis of its content or specific viewpoint. Thus, contrary to National’s assertion, the Ordinance need not satisfy the very stringent

Freedman

requirements.

In light of this distinction, the Ordinance contains sufficient procedural requirements to survive constitutional review. First, City officials cannot exercise unbridled discretion. On the contrary, an official’s decision to either grant or deny a permit is expressly limited by the requirements set forth in the Ordinance. Miami, Fla., Zoning ORDINANCE §§ 2101.2, 2102.2, at 607-08. Specifically, an official may only deny a permit to build a structure if the structure fails to meet the concrete and specific requirements clearly set forth in the Ordinance for that specific zoning district.

Id.

Officials have no discretion to deny a permit if those specific requirements are met.

Id.

Moreover, the Ordinance also provides for effective judicial review of a City official’s decision to either grant or deny a permit.

Id. §§ 1800-1807 at 557-58. Under the Ordinance, if a permit is denied, the affected applicant may appeal to a zoning board that must grant a hearing within⁴⁵ days of the appeal.

Id. § 1804 at 557. Thereafter, the board’s decision itself may be appealed to the city commission, and ultimately, to the Florida courts.

Id. §§ 2001-2005 at 591. Moreover, in order to assure adequate appellate review, the city official must give specific reasons for the permit denials.

Id. § 2102.2 at 608.

For these reasons, the Zoning Ordinance’s content-neutral permit scheme is constitutional pursuant to

Thom

as. Accordingly, the Court rejects National’s argument that the Ordinance constitutes an impermissible speech licensing scheme. Instead, the Court finds that the Zoning Ordinance is a content-neutral permit scheme that adequately protects the First Amendment rights of all permit applicants.

VI. Conclusion

The Supreme Court has clearly stated that while billboards constitute “a well-established medium of communication, used to convey a broad range of different kinds of messages,” the fact remains that “whatever its communicative function, the billboard remains a ‘large, immobile, and permanent structure which like other structures is subject to ... regulation.’ ”

Metromedia,

453 U.S. at 501, 502, 101 S.Ct. 2882 (quoting

Metromedia v. San Diego,

26 Cal.3d 848, 870, 164 Cal.Rptr. 510, 610 P. 2d 407 (Cal.1980)). Once the dust surrounding National’s First Amendment claims settles, it becomes clear that this case concerns one thing: National’s commercial interest. This Court thinks that it would be counterintuitive to adopt National’s position and issue a ruling intended to benefit and protect noncommercial speech, when its effect would actually be to benefit a billboard company whose sole interest and motivation in initiating this litigation is to ensure its commercial well-being.

*1379-1381

Accordingly, after a careful review of the record, and the Court being otherwise fully advised, it is

ORDERED and ADJUDGED that National’s Second Motion for Summary Judgment (DE # 116) be, and the same is hereby, DENIED. It is further

ORDERED and ADJUDGED that the City’s Second Motion for Summary Judgment (DE # 112) be, and the same is hereby, GRANTED.

FINAL JUDGMENT

Pursuant to Fed.R.Civ.P. 58, and the Court’s September²⁵, 2008 Memorandum Opinion Granting Summary Judgment, it is

ORDERED and ADJUDGED that judgment is entered in favor of Defendant City of Miami and against Plaintiff National Advertising Company. This case is DISMISSED with prejudice. It is further

ORDERED and ADJUDGED that any pending motions are hereby DENIED as moot. The Court retains jurisdiction of the above-styled action to determine fees, costs, and expenses, as are appropriate under the law, incurred by Defendant in defending this action.