Opinion
CIVIL ACTION NO. 2:05-CV-32-WCO.
September 22, 2006
ORDER
The captioned case is before the court for consideration of defendant's motion for summary judgment [27-1], defendant's supplemental motion for summary judgment [49-1], plaintiffs' motion to strike or in the alternative to file a surreply [50-1], and plaintiffs' renewed motion for preliminary injunction or temporary restraining order [55-1]. The case involves a constitutional challenge to the Pickens County Sign Ordinance of 1999.
I. Background
A. The 1999 Ordinance
In 1999, Pickens County adopted a sign ordinance ("1999 Ordinance") that prohibits "billboards," defined by the ordinance as advertising signs that advertise a "commodity, product, service, activity or other person, place or thing, which is not located, found or sold on the premise upon which the sign is located." Ord. §§ 4-31, 4-32(4) (1999). An "advertising sign" is defined as "any letter, figure, character, mark, . . . picture, . . . reading matter . . . constructed, placed, attached, erected . . . used for the attraction of the public to any place, subject, person, firm, corporation, public performance, article, machine or merchandise whatsoever." Ord. § 4-31 (1999). Although "billboards" are prohibited, the sign ordinance does allow "freestanding signs," defined as "advertising sign[s] which advertise a commodity, product, service or activity or any other person, place, or thing, which is located, found or sold on the premises upon which sign is located." Id. Such advertising signs erected along major thoroughfares may not exceed twenty-two (22) feet in height. Ord. § 4-35(a) (1999). Certain types of signs are restricted, such as those "of an obscene nature," those advertising illegal activities or products, or those displaying "untrue, false or misleading statements." Ord. §§ 4-38(b), 4-38(c), 4-46 (1999).
Signs not provided for in the ordinance may not be lawfully posted, and many signs posted in the county must be pre-approved by county officials, but the 1999 Ordinance does not set time limits on the county officials' decision-making. Ord. § 4-48 (1999); Ord. § 4-49 (2000). "For sale" signs, official government signs, historical markers, no trespassing signs, Red Cross emergency station signs, highway markers, political signs, and several other categories of signs are exempted from the permit requirements. Ord. § 4-47 (1999). It is disputed whether these signs are subject to the 1999 Ordinance's size and height restrictions. Political campaign signs are limited to sixty-three (63) days of display, unlike many other noncommercial and commercial signs. Ord. § 4-47(11) (1999). The 1999 Ordinance provides for penalties for violations thereof, including imprisonment for up to ninety (90) days or a fine of $250.00. Ord. § 4-48 (1999).
B. Procedural History
Plaintiffs Garry Prather, a resident of Pickens County, Steve Wagner, a property owner and business owner in Pickens County, and Signature Ponds, a local business in Pickens County, brought suit against defendant Pickens County, a political subdivision of the state of Georgia. Plaintiffs allege that they seek to post signs on property that they own or occupy in the county, but that the 1999 Ordinance prohibits or prescribes the types of messages and signs they may use. Plaintiffs claim that the 1999 Ordinance violates their right to free speech under both the United States and Georgia Constitutions. Plaintiffs are seeking monetary damages as well as injunctive relief.
The original complaint [1-1], filed March 7, 2005, named as plaintiffs Steve Anderson, Donald Kolberg, Claudine Prather, Garry G. Prather, Steve Wagner, J.D.S. Properties, Carns Mill General Store, and Signature Ponds, Inc. The amended complaint [3-1], filed two days later, named all of the above as plaintiffs, with the exception of Steve Anderson and J.D.S. Properties. On September 28, 2005, Claudine Prather, Donald Kolberg, and Carns Mill General Store were dismissed with prejudice [26-1].
This court has previously addressed the constitutionality of the 1999 Ordinance in Tinsley Media, LLC v. Pickens County, No. 2:03-CV-131-WCO (N.D. Ga. March 25, 2005). In that case, the court held that the plaintiff, Tinsley Media, lacked standing to challenge the entire ordinance but had standing to challenge the portion of the ordinance under which its permit applications were denied, § 4-32(4), the ban on billboards. Id., at 11. The court, however, found that this provision was constitutional. Id., at 13. Tinsley Media has appealed this court's ruling to the United States Court of Appeals for the Eleventh Circuit.
The individual plaintiffs in the case at hand, Prather and Wagner, have each reached an agreement with Tinsley Media to allow the company to erect an advertising sign on property they control within Pickens County. Plaintiffs assert that they have used signs to convey messages in the past, intend to use signs to convey noncommercial messages in the future, and desire to receive similar noncommercial messages via signs from other willing speakers.
Plaintiffs filed two motions, on March 7, 2005 [2-1] and June 29, 2005 [10-1] respectively, for preliminary and permanent injunctive relief, requesting that the court enjoin defendant from enforcing the 1999 Ordinance. On October 20, 2005, defendant filed a motion for summary judgment [27-1], raising the issue of standing.
On February 8, 2006, the court, by written order [43-1], denied plaintiffs' motions for injunctive relief without prejudice. The court noted that other cases which were likely to have a material bearing upon the court's decision in this case were, at the time, pending before the Eleventh Circuit. Since that time, the Eleventh Circuit has issued several opinions addressing the issue of standing in First Amendment cases.
On September 5, 2006, defendant filed a motion for leave to file a supplemental motion for summary judgment [48-1] and a supplemental motion for summary judgment [49-1]. The following day, plaintiffs filed a motion to strike defendants' motions or, in the alternative, a motion for leave to file a surreply [50-1]. On September 7, 2006, both parties appeared before the court for a hearing on all pending motions. The court verbally granted defendant's motion for leave to file a supplemental motion for summary judgment and directed plaintiffs to respond to this supplemental motion within ten (10) days of the filing date. On September 18, 2006, plaintiffs filed their response in opposition to defendant's supplemental motion for summary judgment and a renewed motion for preliminary injunction or temporary restraining order [55-1].
C. 2006 Ordinance
On March 24, 2006, defendant repealed the 1999 Ordinance and adopted a comprehensive new ordinance ("2006 Ordinance"). Defendant now argues that the county's adoption of the 2006 Ordinance rendered plaintiffs' claims moot. Plaintiffs, however, claim that the 2006 Ordinance is null and void.
The 2006 Ordinance contains a statement of findings and a statement of purpose. Ord. §§ 4-31, 4-32 (2006). This new ordinance requires a permit "for the erection, alteration or reconstruction of any sign unless otherwise noted." Ord. § 4-45(A) (2006). A general permit is granted for traffic control signs, official notices, temporary event signs, flags, and individual signs of up to ten (10) square feet in sign area. Ord. § 4-47 (2006). The 2006 Ordinance contains procedures governing the application for and issuance of all sign permits. See Ord. § 4-49(E) (2006). These procedures require review of all applications for sign permits within ten (10) working days, compel the reviewer to provide a rejected applicant with written notification explaining the specific ways in which an application is deficient, allow the applicant to resubmit the application, and permit an applicant to appeal the denial of a permit application and/or to apply for a variance. Id.
The 2006 Ordinance does not specifically prohibit billboards, nor does it prohibit signs displaying messages unrelated to activities conducted at the signs' location. This new ordinance does not contain the prohibitions on signs of an obscene nature, those advertising illegal activities or products, or those displaying false statements. Under the 2006 Ordinance, however, freestanding signs are limited to a maximum height of thirty (30) feet, and all signs are limited to a maximum sign area of one hundred (100) square feet. Ord. §§ 4-45(C), 4-45(D) (2006).
II. Preliminary Matters
Plaintiffs have moved to strike defendant's supplemental motion for summary judgment as untimely filed. In the alternative, plaintiffs have requested leave to file a surreply. Although defendant's untimely filing fails to comply with the rules of this court or the Federal Rules of Civil Procedure, these supplemental materials go to the issue of mootness. As the court will discuss in further detail below, this issue affects the court's jurisdiction over the case and these supplemental materials ought to be considered at this time. At the direction of the court, plaintiffs have filed a response to defendant's supplemental motion. Accordingly, plaintiffs' motion to strike is DENIED, and plaintiffs' alternative motion for leave to file a surreply is GRANTED nunc pro tunc [50-1].
III. Motion for Summary Judgment and Supplemental Motion for Summary Judgment
A. Summary Judgment Standard
Summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Only those claims for which there is no need for a factual determination and for which there is a clear legal basis are properly disposed of through summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
It is well-settled that a court evaluating a summary judgment motion must view the evidence in the light most favorable to the non-movant. See, e.g., Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). It is important to recognize, however, that this principle does not require the parties to concur on every factual point. Rule 56 "[b]y its very terms . . . provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Consideration of a summary judgment motion does not lessen the burden on the nonmoving party. The nonmoving party still bears the burden of coming forth with sufficient evidence. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). However, it is important to note the difference "between direct evidence and inferences that may permissibly be drawn from that evidence. Where a nonmovant presents direct evidence that creates a genuine issue of material fact, the only issue is one of credibility; thus, there is no legal issue for the court to decide." Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). On the other hand, "[a] court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are `implausible.'" Id. at 743. Adopting language from one of its sister circuits, the Eleventh Circuit stated:
If the nonmoving party produces direct evidence of a material fact, the court may not assess the credibility of this evidence nor weigh against it any conflicting evidence presented by the moving party. The nonmoving party's evidence must be taken as true. Inferences from the nonmoving party's "specific facts" as to other material facts, however, may be drawn only if they are reasonable in view of other undisputed background or contextual facts and only if such inferences are otherwise permissible under the governing substantive law. This inquiry ensures that a "genuine" issue of material fact exists for the factfinder to resolve at trial.Id. (citation omitted). "Where the evidence is circumstantial, a court may grant summary judgment when it concludes that no reasonable jury may infer from the assumed facts the conclusion upon which the nonmovant's claim rests." Id.
B. Analysis
Defendant has raised the issues of mootness and standing. As these matters affect the court's jurisdiction under Article III of the United States Constitution, the court must address them before reaching the merits of plaintiffs' claims. The court will first review the issue of mootness.
1. Mootness
The doctrine of mootness is a "threshold issue" because "if a suit is moot, it cannot present an Article III case or controversy and federal courts lack subject matter jurisdiction to entertain it." Seay Outdoor Adver., Inc. v. City of Mary Esther, 397 F.3d 943, 946 (11th Cir. 2005). The court lacks jurisdiction because of mootness "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). Subsequent developments can render a case moot such that any decision a federal court might render on the merits of the case would constitute an advisory opinion. Nat'l Adver. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005). A case may become moot when a subsequent change in the law brings the existing controversy to an end. Id.
Defendant claims that the county's adoption of the 2006 Ordinance, which completely replaced the 1999 Ordinance, renders plaintiffs' constitutional challenge to the 1999 Ordinance moot. Plaintiffs have raised two arguments against defendant's claim that the 2006 Ordinance renders the entire case moot. First, plaintiffs assert that the 2006 Ordinance is null and void because the county failed to comply with Georgia's Zoning Procedures Law ("ZPL"). Defendants, however, maintain that the 2006 Ordinance is not subject to the requirements of the ZPL and is not invalid for any failure to comply with this law.
Under O.C.G.A. § 36-66-4(a),
A local government taking action resulting in a zoning decision shall provide for a hearing on the proposed action. At least 15 but not more than 45 days prior to the date of the hearing, the local government shall cause to be published within a newspaper of general circulation within the territorial boundaries of the local government a notice of the hearing. The notice shall state the time, place, and purpose of the hearing.
Plaintiffs have introduced evidence of a notice of public hearing to be conducted on March 13, 2006 regarding the county's sign ordinance. (Pl.'s Resp. to Def.'s Supp. Mot. for Summ. J., Ex. A.) This notice was published in the March 9, 2006 edition of thePickens County Progress. (Id.) As this notice was published four days prior to the public hearing, plaintiffs contend that it was insufficient. Plaintiffs have also introduced the minutes of the March 24, 2006 Pickens County Commissioner's meeting, at which the 2006 Ordinance was adopted. (Id., Ex. B.) Plaintiffs contend that, as the minutes do not indicate that a public hearing was held on this action, there is no evidence that such meeting was held.
Defendant argues that because the 2006 Ordinance does not classify property into separate districts, it does not fall under the definition of a zoning ordinance under Georgia law.
Plaintiffs also argue that because their complaint included a request for damages, their claims have not been rendered moot by the adoption of the 2006 Ordinance. With regard to this second argument, the court notes that "when a plaintiff requests damages, as opposed to only declaratory or injunctive relief, changes to or repeal of the challenged ordinance may not necessarily moot the plaintiff's constitutional challenge to that ordinance." Crown Media, LLC v. Gwinnett County, 380 F.3d 1317, 1325 (11th Cir. 2004). Thus, even if the 2006 Ordinance is found to be valid, plaintiffs' claims for monetary damages based on their challenge to the 1999 Ordinance are not moot. Therefore, the court will first address whether plaintiffs have standing to challenge the 1999 Ordinance.
2. Standing
a. Plaintiffs have standing to challenge only the portion of the 1999 Ordinance banning billboards
Defendant claims that plaintiffs lack standing to challenge the sign ordinance. As standing is an essential part of Article III's case-or-controversy requirement, the court must address this issue before considering the merits of the case. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992); Flast v. Cohen, 392 U.S. 83 (1968).
To have standing, a plaintiff must meet three constitutional requirements: (1) an injury in fact, which is concrete and particularized and actual or imminent; (2) a causal connection between the injury and the causal conduct; and (3) a substantial likelihood that a favorable decision will redress the injury.Granite State Outdoor Adver. Co. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003) (citing Bennett v. Spear, 520 U.S. 154, 167 (1997); Allen v. Wright, 468 U.S. 737, 751 (1984)). With respect to the "injury in fact" requirement, the plaintiff must show that he personally suffered harm, an actual or threatened injury. Granite State, 351 F.3d at 1116-17.
There is also a prudential component to standing doctrine.Allen, 468 U.S. at 751. Relevant to the case at hand is the prudential standing principle that "a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court." Granite State, 351 F.3d at 1116. The overbreadth doctrine, however, is an exception to this principle. Id. The overbreadth doctrine permits a plaintiff to challenge a statute on the ground that it violates the First Amendment rights of a third party not before the court, even when the law is constitutional as applied to the plaintiff.See Virginia v. Am. Booksellers Assoc., 484 U.S. 383, 392 (1988);Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634 (1980).
It would be a misapplication of the overbreadth doctrine, however, to use it to give a party standing where none existed.Granite State, 351 F.3d at 1116-18. The overbreadth doctrine is not an exception to the constitutional standing requirements. Id. at 1116. A plaintiff seeking to make an overbreadth challenge must still show that he or she has suffered an injury in fact.Id. A plaintiff may bring an overbreadth challenge only to the provisions of the law that actually caused his or her injury. Id. Once a plaintiff has established that the challenged provision caused him or her to personally suffer harm, the plaintiff may bring a facial challenge regardless of whether the provision's regulation of the plaintiff's conduct in particular was constitutional. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir. 2006).
Plaintiffs are arguing that they have standing to challenge the entire ordinance under the overbreadth doctrine. Defendant, however, is challenging standing on a more basic level, alleging that plaintiffs have not suffered an injury in fact. The court must now determine whether any of the challenged provisions have caused plaintiffs to personally suffer harm. Plaintiffs claim that they have standing to challenge the ordinance based on their past usage of signs. Each plaintiff also claims an intention to use signs to convey noncommercial messages and a desire to receive similar noncommercial messages via signs from others. Additionally, the individual plaintiffs have each reached an agreement with Tinsley Media, L.L.C. ("Tinsley") to allow the company to erect advertising signs on property they control.
Plaintiffs claim that the ordinance has chilled their freedom of speech as their fear of incurring penalties for violating the ordinance has resulted in self-censorship. The Eleventh Circuit has expressed concern over the chilling effect a regulation may have over free speech even before its enforcement. See Hallandale Prof'l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991). Thus, in the context of alleged First Amendment violations, "the injury requirement is most loosely applied — particularly in terms of how directly the injury must result from the challenged governmental action." Id. The court "will not force a plaintiff to choose between intentionally violating a law to gain access to judicial review and foregoing what he or she believes to be constitutionally protected activity in order to avoid criminal prosecution."White's Place, Inc. v. Glover, 222 F.3d 1327, 1329 (11th Cir. 2000).
Nevertheless, "even in a [F]irst [A]mendment context the injury to the plaintiff requirement cannot be ignored." Hallandale, 922 F.2d at 760. The allegation of a "subjective `chill'" to one's freedom of speech with no more injury is insufficient to establish an injury in fact for standing purposes. Laird v. Tatum, 408 U.S. 1, 13 (1972), citing United Pub. Workers v. Mitchell, 330 U.S. 75, 89 (1947). To establish standing, a plaintiff alleging that his speech has been chilled must show "that either (1) he was threatened with prosecution; (2) prosecution is likely; or (3) there is a credible threat of prosecution." ACLU v. Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993). Plaintiff's fear of prosecution must be "objectively reasonable." Id.
Although § 4-48 of the 1999 Ordinance provides for penalties for violations thereof, the court finds that plaintiffs have failed to show injury in fact for all of the challenged portions of the ordinance. Plaintiffs challenge the ordinance's restrictions on their ability to post signs containing political messages and other "noncommercial messages regarding topics unrelated to the activities conducted at the signs' locations." (Am. Compl. ¶¶ 9, 11.) This claim, however, is not credible as plaintiffs have failed to provide evidence of an intention to post noncommercial signs. Plaintiffs generally allege that the 1999 Ordinance has restricted their ability to post commercial and noncommercial signs. In response to a motion for summary judgment, however, plaintiffs can no longer rely on "mere allegations" but must set forth "specific facts" by affidavit or other evidence. Lujan, 504 U.S. at 560 (quoting FED. R. CIV. P. 56(e)).
The depositions of the two individual plaintiffs reveal that they have no genuine interest in posting noncommercial messages. In his deposition, plaintiff Garry Prather denies having any inclination to post political signs. (Prather Dep. at 87-88.) He also admits that he has never had difficulty posting signs, been threatened with removal of any signs, nor even heard of anyone who has been cited or fined by the county for posting signs. (Id. at 87-90.) Although Prather stated that he might be "scolded" for putting signs on his property, he never indicated any true desire to post political or other noncommercial signs. (Id. at 84.) Plaintiff Wagner also denies having any intention of posting any signs other than a commercial billboard. (Wagner Dep. at 31.) Wagner fails to point to any political or other noncommercial speech that has been "chilled" as a result of the sign ordinance. Wagner admits that he has never attempted to post a political sign and states that he is "not political." (Id. at 33.) Plaintiffs have also failed to show that plaintiff Signature Ponds has any interest in displaying noncommercial messages via signs.
Plaintiffs' true interest relating to the sign ordinance seems to be solely commercial. Plaintiffs each stood to earn $6,000 per year under the Tinsley lease agreements. Additionally, both individual plaintiffs complained of their inability to post other commercial signs due to the ordinance's prohibition on billboards. Thus, plaintiffs' true complaint lies with § 4-32(4) of defendant's sign ordinance, the portion which prohibits billboards. Plaintiffs did not indicate any interest in displaying signs that would be regulated or prohibited by other challenged portions of the ordinance, such as § 4-47(11) (campaign signs), § 4-38(b) ("obscene" content), § 4-38(c) (illegal products or services), or § 4-46 (false advertising).
Plaintiffs repeatedly cite to the summary judgment order inKennedy v. Avondale Estates, No. 1:00-CV-1847-JEC (N.D. Ga. Mar. 31, 2005). In Kennedy, Judge Carnes found that the three individual plaintiffs had standing to challenge certain portions of Avondale Estates' sign ordinance. Id., at 32. Judge Carnes noted that these plaintiffs "live and work under the City's ordinance, and clearly have a personal stake in the outcome of the controversy." Id. Plaintiffs in the case at hand claim that, like the plaintiffs in Kennedy, they have a personal stake in the outcome of this controversy based on the fact that they either live in or own property in Pickens County.
The Kennedy plaintiffs, however, established a more convincing case for standing than plaintiffs have in the case at hand. TheKennedy order notes that two of the plaintiffs showed a desire to support political candidates and to express their views by displaying signs. Id., at 18-19, 31-32. The third Kennedy plaintiff was a real estate agent who regularly advertised her business and the availability of her client's property for purchase through posting signs on the client's property. Id., at 19, 32. Furthermore, there was evidence in Kennedy that the city had actually enforced its own sign ordinance by informing residents that they must remove signs and issuing summons for sign violations. Id., at 19. Plaintiffs in the case at hand have specifically denied being politically active and have stated that they do not intend to post political signs. (Prather Dep. at 83-83, 88; Wagner Dep. at 33.) Plaintiffs also fail to identify any specific noncommercial messages they desire to display via signs. The court finds that neither plaintiff Prather's status as a county resident nor plaintiff Wagner's status as a business owner in the county is sufficient on its own to create a personal stake in the controversy such that plaintiffs have standing to bring a facial challenge to these other provisions of the sign ordinance.
Plaintiffs' deposition testimony reveals that they do intend to allow Tinsley Media to erect commercial billboards on their property. (Prather Dep. at 76-66, 98-99; Wagner Dep. at 35-36.) The Tinsley Media lease agreements are evidence that plaintiffs truly have an interest in posting signs that would be proscribed by the ordinance. Plaintiffs' claims of lost revenue demonstrate that they suffered an injury in fact with regard to the portion of the ordinance prohibiting billboards. Plaintiffs, however, have provided no evidence of any particular noncommercial messages that they have been prohibited from posting. Nor have plaintiffs indicated a credible intention of engaging in conduct that would be regulated or proscribed by portions of the ordinance other than the prohibition against billboards. Thus, plaintiffs' claims that these provisions violate the Constitution amount to only generalized grievances. Although plaintiffs do not have to expose themselves to prosecution to challenge a law restricting arguably protected conduct, the court does not find it appropriate to grant standing based on unsubstantiated allegations regarding intent to engage in such conduct. Accordingly, the court finds that plaintiffs have standing only with regard to the portion of the ordinance prohibiting commercial billboards.
b. Prohibition of Billboards is Constitutional
In Tinsley Media, LLC v. Pickens County, No. 2:03-CV-131-WCO (N.D. Ga. March 25, 2005), Tinsley Media challenged the 1999 Ordinance under the overbreadth doctrine. The court found that Tinsley Media had standing to challenge only § 4-32(4), the provision banning commercial billboards. Id. at 11-12. This court ultimately concluded that § 4-32(4) is constitutional. The court found that the ordinance was content-neutral despite the fact that it distinguished between off-premises and on — premises commercial signs. Id. at 15-17. The court also found that the ordinance does not favor commercial speech over noncommercial speech and that the ordinance's time, place, and manner restrictions are reasonable. Id. at 17-19. Finally, the court held that the ordinance complied with the requirements for restricting commercial speech imposed by Central Hudson Gas Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980). Tinsley Media, at 19-21.
Although Tinsley Media appealed this court's March 25, 2005 order granting summary judgment to the county, the appeal is still pending before the Eleventh Circuit. After reviewing recent Eleventh Circuit opinions, this court is convinced that First Amendment jurisprudence has not developed in such a manner that would require the court to reevaluate its earlier ruling as to the constitutionality of § 4-32(4). As plaintiffs' injury stems from the county's refusal to grant Tinsley Media permits to erect billboards on plaintiffs' land, plaintiffs share the same injury as that claimed by Tinsley Media in the earlier case. Therefore, the court finds that the 1999 Ordinance's § 4-32(4) prohibition of commercial billboards is constitutional.
In KH Outdoor, the Eleventh Circuit upheld the district court's injunction where a sign company challenged the city's sign ordinance after the city denied its applications to construct billboards. 458 F.3d 1261. Under this ordinance, billboards were the largest signs permitted. Id. As billboards were limited by definition to only commercial messages, the appellate court found that the ordinance impermissibly favored commercial speech over noncommercial speech. Id. The Eleventh Circuit's holding in KH Outdoor, however, does not change this court's analysis of the 1999 Sign Ordinance. Unlike the sign ordinance in KH Outdoors which permitted billboards in certain areas, the 1999 Sign Ordinance completely bans billboards, defined as off-site signs. As "noncommercial messages are inherently onsite," Coral Springs St. Sys. v. City of Sunrise, 371 F.3d 1320, 1344 (11th Cir. 2004), the 1999 Sign Ordinance does not favor commercial speech over noncommercial speech.
As discussed above, the court has determined that the only portion of the 1999 Ordinance plaintiffs have standing to challenge, the ban on commercial billboards, is constitutional. Thus, the court declines at this time to address the validity of the 2006 Ordinance. Defendant's motion for summary judgment is hereby GRANTED as to plaintiffs' claim that the 1999 Ordinance violates their First Amendment rights (Count I) and plaintiffs' claim for injunctive relief (Count III) [27-1]. Defendant's supplemental motion for summary judgment is DENIED as moot [49-1].
As the court has found that plaintiffs lack standing to challenge the provisions of the 1999 Ordinance that have not previously been examined by the court, the court finds that it would not be appropriate to address plaintiffs' challenge to the new ordinance.
d. State Law Claims
Defendant also seeks summary judgment on plaintiffs' claim that the 1999 Ordinance violates their rights under the Georgia Constitution. However, by granting defendant's motion for summary judgment with regard to plaintiffs' First Amendment claim, the court has disposed of plaintiffs' only claim under federal law. The remaining claim arises under state law. The court declines to accept supplemental jurisdiction over this claim. See 28 U.S.C. § 1367(c)(3) (court may decline to exercise supplemental jurisdiction when it has dismissed all claims over which it had original jurisdiction). Therefore, the court DISMISSES plaintiffs' remaining state law claim (Count II).
IV. Conclusion
For the reasons set forth above, defendant's motion for summary judgment is hereby GRANTED [27-1] as to Counts I and III. Count II is hereby DISMISSED. Defendant's supplemental motion for summary judgment is DENIED as moot [49-1]. Plaintiffs' motion to strike is hereby DENIED, and plaintiffs' alternative motion for leave to file a surreply is GRANTED nunc pro tunc [50-1]. Plaintiffs' renewed motion for preliminary injunction or temporary restraining order is hereby DENIED as moot [55-1].
IT IS SO ORDERED.