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Reagan National Advertising of Austin, Inc. v. City of Cedar Park

United States District Court, W.D. Texas, Austin Division

May 23, 2019

REAGAN NATIONAL ADVERTISING OF AUSTIN, INC., Plaintiff,
v.
CITY OF CEDAR PARK, Defendant.

          ORDER AMENDED ORDER [1]

          SAM SPARKS SENIOR UNITED STATES DISTRICT JUDGE.

         BE IT 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.[2] Having reviewed the documents, the relevant law, and the file as a whole, the Court now enters the following opinion and orders.

         Background

         This is 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.

         To receive approval, permit applications must demonstrate proposed signs meet the requirements of the City's Sign Code.[3] 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.

         Both 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.

         On 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 Code].").

         After 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.

         Analysis

         The 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.

         I. Standing

         A. Legal Standard

         Article 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, 561 (1992).

         B. Application

         Reagan argues the City's denialof 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.

         1. New Sign Applications

         The 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.

         Reagan 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[4] 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.

         In most 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);[5]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 statute.").

         Here, 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 ยง 13.01.002 (defining "sign" as "[a]ny surface, display, design, or device visible from a public ...


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