United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendant City of Cedar
Park (the City)'s Amended Motion for Summary Judgment
[#24], Plaintiff Reagan National Advertising of Austin, Inc.
(Reagan)'s Response [#29], Cedar Park's Reply [#30]
in support, Reagan's Sur-Reply [#31] in opposition, and
Cedar Park's Sur-Sur-Reply [#35] in
support. Having reviewed the documents, the
relevant law, and the file as a whole, the Court now enters
the following opinion and orders.
a First Amendment case. Reagan is a commercial billboard
company in the business of outdoor advertising. Am. Compl.
[#18] at 2. On March 8, 2017, Reagan submitted five sign
permit applications to the City. Am. Mot. Summ. J. [#24-2]
(Sign Permit Applications). Three of these applications
requested permission to install digital sign faces on
existing outdoor signs (the Digital Conversion Applications).
Id. at 1, 2-16. The other two applications sought
permits for the construction of two new signs (the New Sign
Applications). Id. at 1, 17-32.
receive approval, permit applications must demonstrate
proposed signs meet the requirements of the City's Sign
Code. These requirements are contained in two
articles. The first article-Article 13.01-is entitled
"On-Premises Sign Standards and Permits." Am. Mot.
Summ. J. [#24-5] Ex. 5 (Sign Code) at 1. The second
article-Article 13.03-is entitled "Off-Premises Sign
Standards and Permits." Id. at 25.
Article 13.01 and Article 13.03 contain provisions which rely
upon a distinction between on-premises and off-premises
signs. An "on-premises sign" is defined as a
"sign identifying or advertising the business, person,
activity, goods, products, or services located on the site
where the sign is installed, or that directs persons to a
location on that site." Sign Code at 4. By contrast, an
"off-premises sign" is defined as a "sign
referring to goods, products or services provided at a
location other than that which the sign occupies."
Id. at 3-4. All five of Reagan's permit
applications relate to off-premises signs.
March 14, 2017, the City denied Reagan's permit
applications. Am. Mot. Summ. J. [#24-4] Ex. 4 (Denial
Letters). Among other reasons, the New Sign Applications were
denied because they proposed using light-emitting diode (LED)
displays in off-premises signs and because they proposed to
erect "pylon signs." Id. at 7-10; see
also Sign Code § 13.01.007(i)(4)
("Electronically controlled changeable messages signs
shall not advertise goods or services not offered on the
premises on which the sign is located."); id.
§ 13.03.006(d) ("No light emitting diode (LED)
displays or signs shall be permitted."). The City also
denied the Digital Conversion Applications because, like the
New Sign Applications, the Digital Conversion Applications
proposed installing LED displays in off-premises signs.
Denial Letters at 1-6; Sign Code §§
13.01.007(i)(4), 13.03.006(d); see also Id.
§§ 13.01.016(a), 13.03.007(a) ("[N]o change or
alteration shall be made [to existing signs] that would
increase the degree of nonconformity [with the Sign
the City denied Reagan's permit applications, Reagan
filed this action in state court arguing that the Sign
Code's differing treatment of on-premises and
off-premises signs constitutes content discrimination and
that this content-based distinction cannot survive
constitutional scrutiny. Notice Removal [#1-1] Ex. 1
(Original Pet.) at 4. On this basis, Reagan seeks to
invalidate the entire Sign Code. Reply [#31] at 3. The City
removed the action to this Court and now moves for summary
judgment. Notice Removal [#1]; Am. Mot. Summ. J. [#24]. This
pending motion is ripe for review.
Court first considers whether Reagan has standing to
challenge the denial of its New Sign and Digital Conversion
Applications. Because the Court concludes Reagan possesses
standing to challenge the denial of its Digital Conversion
Applications, the Court then turns to consider whether the
City is entitled to summary judgment as to the
constitutionality of the Sign Code provisions relied upon to
deny those applications.
III of the Constitution limits the jurisdiction of federal
courts to cases and controversies. U.S. Parole Comm'n
v. Geraghty, 445 U.S. 388, 395 (1980). In order to meet
this case-or-controversy requirement, plaintiffs must
establish they have standing to sue. Raines v. Byrd,
521 U.S. 811, 818 (1997). Plaintiffs have standing to sue if
they have suffered an injury in fact fairly traceable to the
challenged action of the defendant and "likely to be
redressed by the requested relief." Allen v.
Wright, 468 U.S. 737, 750-52 (1984); see also
Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC),
Inc., 528 U.S. 167, 185 (2000) ("[A] plaintiff must
demonstrate standing separately for each form of relief
sought."). "The party invoking federal jurisdiction
bears the burden of establishing these elements."
Lujan v. Def. 's of Wildlife, 504 U.S. 555,
argues the City's denial of the New Sign and Digital
Conversion Applications relied on Sign Code provisions that
draw unconstitutional, content-based distinctions between
on-premises and off-premises speech. The Court first
considers whether Reagan possesses standing to challenge the
denial of its New Sign Applications. It then considers
whether Reagan possesses standing to challenge the denial of
the Digital Conversion Applications.
New Sign Applications
City suggests Reagan lacks standing to challenge the denial
of its New Sign Applications because Reagan has not shown
this denial is redressable. Am. Mot. Summ. J. [#24] at 5, 17;
Reply [#30] at 1-2. In part, the New Sign Applications were
denied because they sought to erect "pylon signs"
prohibited by Sign Code § 13.01.006(e) (the "Pylon
Provision"). Reply [#30] at 1-2. The City argues the
Pylon Provision does not depend on the challenged distinction
between on- and off-premises signs. Id. If, as the
City suggests, the Pylon Provision does not depend on the
challenged distinction, then Reagan's injury is not
redressable because the Pylon Provision will provide a basis
for denying the New Sign Applications regardless of how the
Court rules in this case.
does not argue the New Sign Applications comply with the
Pylon Provision. See Sur-Reply [#31] at 2-3.
Instead, Reagan argues the City erred in relying on the Pylon
Provision to deny the New Sign Applications because the Pylon
Provision does not apply to off-premises signs.
Id. Reagan believes the Pylon Provision
does not apply to off-premises signs because it is located in
Article 13.01, which is entitled "On-Premises Sign
Standards and Permits." Id. According to
Reagan, this title conclusively demonstrates the provisions
of Article 13.01 apply only to on-premises signs. Sur-Reply
[#31] at 2-3.
circumstances, one would expect the title or heading of a
statutory or regulatory provision to reflect the scope and
purpose of that provision. But in some instances, a statutory
or regulatory provision possesses a heading at odds with the
provision's operative text. Perhaps for this reason,
headings are just one of several considerations taken into
account by Texas courts when interpreting statutory and
regulatory provisions. See TEX. Gov. CODE §
311.023 (listing considerations that may be weighed by courts
when interpreting statutory provisions); cf Fla.
Dep't of Revenue v. Piccadilly Cafeterias, Inc., 554
U.S. 33, 47 (2008) ("[A] heading cannot substitute for
the operative text of the statute[;] . . . [n]onetheless,
statutory titles and section headings are tools available for
the resolution of a doubt about the meaning of a
the heading of Article 13.01 suggests the article applies
only to on-premises signs. But the operative text of Article
13.01 does not contain such a limitation. To the contrary,
Article 13.01 contains a number of provisions that appear to
be of general applicability and do not depend on a
distinction between on- and off-premises signs. For example,
§ 13.01.004 establishes that "[i]t shall be
unlawful for any person to erect, construct, enlarge, move or
convert any sign within the city ... without first
obtaining a sign permit . . . ." Sign Code §
13.01.004(a) (emphasis added). As another example, Sign Code
§ 13.01.019, entitled "Repairs and
Maintenance," provides that "all signs in
the city must be properly maintained at all times" and
then sets out extensive procedural requirements for reporting
and removing signs in violation of the Sign Code.
Id. § 13.01.019 (emphasis added). And as a
third example, Sign Code § 13.01.007(i) regulates the
structural integrity of "[a]ny sign as defined in this
article." None of these provisions contain textual
limitations restricting their application to on-premises
signs. See Sign Code § 13.01.002 (defining
"sign" as "[a]ny surface, display, design, or
device visible from a public ...