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Lamar Outdoor Advertising v. City of Weston

United States District Court, N.D. West Virginia, Elkins

June 18, 2018

LAMAR OUTDOOR ADVERTISING, a West Virginia Corporation, and LAMAR TEXAS LIMITED PARTNERSHIP, a Texas Limited Partnership, Plaintiffs,
v.
THE CITY OF WESTON,

          ORDER DENYING DEFENDANT CITY OF WESTON'S MOTION TO DISMISS AND RENEWED MOTION FOR SUMMARY JUDGMENT

          JOHN PRESTON BAILEY UNITED-STATES DISTRICT JUDGE

         I. Introduction

         Pending before this Court is Defendant City of Weston's Motion to Dismiss and Renewed Motion for Summary Judgment [Doc. 41], filed on May 11, 2018. Specifically, the defendant moves pursuant to Rule 12(b)(1) for an order dismissing the new allegations set forth in the plaintiff's Second Amended Complaint for lack of subject matter jurisdiction. The Motion has been fully briefed and is ripe for decision. For the reasons that follow, this Court denies defendant's Motion [Doc. 41].

         II. Factual and Procedural History

         In August 2016, plaintiff approached the Lewis County Board of Education (“BOE”) about constructing a billboard on the corner of Court Avenue and Third Street. By August 17, 2016, plaintiff and the BOE had agreed to enter into a 10-year lease agreement [Doc. 37 at ¶ 4]. On the same date, the City of Weston (“Weston”), sent a letter to the BOE requesting the BOE “reconsider [its] recent decision to allow the placement of a billboard” at the agreed-upon location [Id. at ¶ 5]. Plaintiff and the BOE formally executed the Sign Location Agreement on October 10 and October 17, respectively [Doc. 37 at 7-8]. Plaintiff's building permit was presented to defendant and subsequently denied on January 18, 2017 [Doc. 37 at ¶ 8].

         On December 5, 2016, the defendant enacted an ordinance for its municipality regulating the location of billboards within its city limits [Doc. 37 at ¶ 7]. Section 1 provides the ordinance's purpose and findings [Doc. 37 Section 1(a)]. It states, among other things, “[t]hat outdoor advertising is a legitimate, commercial use of private property adjacent to roads and highways” and “[t]hat outdoor advertising is “an integral part of the business and marketing function of an establishment segment of the national economy which serves to promote and protect private investments in commerce and industry.” [Id. at Section 1(b)]. Section 2 contains definitions of “sign”, “display”, and “device.” Section 4[1] provides twelve general restrictions to outdoor advertising. Provisions include, among others, a restriction on attempting or purporting to direct traffic (Section 4.4); size, height, and location restrictions (Sections 4.8-4.11); and restrictions on content regarding direct and indirect references to “obscene, abusive, or offensive language, act, or depiction deemed not appropriate for display within the City of Weston” and a limitation on the number of advertisements of certain subjects such as alcohol, gambling, tobacco, or nudity (Section 4.12). Section 5 provides exceptions to the restrictions outlined in Section 4. These exceptions include “directional or other official sign and notices required or otherwise authorized by law…”, on-premises signs for sale/lease, advertising for activities conducted on-premises, and “signs, displays, and devices giving specific information in the interest of the traveling public, which may be erected and maintained pursuant to authorization of the Mayor, within the rights-of-way of roadways and highways.” [Id. at Section 5(a)-(d)]. Section 6 outlines the territory over which the ordinance governs and Section 7 outlines the penalties for violations of the ordinance [Id.].

         Plaintiff filed its Complaint[2] in this Court on June 23, 2017 [Doc. 1]. Therein, plaintiff asserted three claims: Count I - Unconstitutional Restriction on Freedom of Speech; Count II - Taking of Private Property for Government Use; and Count III - Tortious Contractual Interference.

         In its Second Amended Complaint [Doc. 37], filed April 27, 2018, plaintiffs challenge the constitutionality of the City of Weston's Outdoor Advertising Ordinance in its entirety, both facially and as applied to it and third parties.

         Plaintiff alleges:

1 That Section 4.12 is a content based restriction because it “overly restricts advertising of certain products (alcohol, tobacco) and activities (gambling, activities referring to nudity or of a ‘lewd, indecent, lascivious or obscure nature)'”;
2. “Section 5 of the Ordinance exempts certain categories of speech from all general prohibitions in Section 4 based upon the content of the message”;
3. Section 5 contains “an impermissible prior restraint on the exercise of the First Amendment by exempting from the entire regulatory scheme certain ‘signs, displays and devices giving specific information in the interests of the traveling public which may be erected and maintained pursuant to the authorization of the Mayor, within the rights of way of roadways and highways'”;
4. “That a plain reading of the ordinance demonstrates that it is overly broad and impermissibly favors some commercial and noncommercial speech based upon the content of the message;” and
5. “That the ordinance is not narrowly tailored enough to pass constitutional muster because the exemptions found in Section 5 functionally invalidate the general restrictions ...

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