three of feels that we have consolidated i think which since we can solve it it's it is important to remember that there are two very different types of decisions that have been appealed here he had to san diego case which was eighty percent about standing and you course you had  favor commercial over noncommercial speech on your sign regulations and you're not going to discriminate among noncommercial messages in your sign regulations turns out that this studio of saying diego defied the supreme court which had sent it back to the california supreme court supreme court which had thrown out the city's entire sign ordinance back in one thousand nine hundred two and they had left in place regulations that were violent of the exact same legal principle they had an on site regulation that clearly favored business messages over non commercial messages and they had many examples categories for favored types of content now in walks get outdoors applies for its time and it is denied if you look at page forty five of the record excerpt please review the denial letter that came out from the city quote permanent for shell contained on premise this message only unquote and the city cited two section one for two point one two one zero of the code if you look at that section of the code it is obviously violent to of metro media it sets up on premise messages in a way that discriminates against of premise and noncommercial content and it sets up numerous flavored categories and there is a new mobile noncommercial messages that would not benefit in the same way now in many cases that have come before this court proceedings have had noncommercial savings clauses like in the case and others that actually crow callus a case others that have allowed this court to find that this ordinance is in effect content neutral but that was an implied here that was not in existence here so metromedia as it pertains to this ordinance is alive and well and the saving clause sort of out that many cities have adopted san diego had not adopted i would recommend to you two decisions that have come out since just this kind of provision that favored commercial over noncommercial signs it was unanimous decision and it found that metromedia with there's not a savings god is alive and well and must be adhered to of attorneys fees in that case i would note based of course in part on upholding the nominal damages award so the eleventh circuit which is where all this aberrant standing case law comes from is still very much on board  two thousand and six decision that what happened in this case should be looked at by the federal courts are not shoved under the rug on a standing argument now in bolu versus the city of alabaster also in our recent letter and previously submitted to us a letter of authority the eleventh circuit held that if you're going to allow political signs but only with a permit and only with procedures that you have to follow but some of the go out and put up a construction sign or real estate time without a permit and it could be bigger if you favor the commercial content in any way that's still a problem and they discarded the ordinance in that case as well so we see that when there wasn't a city well how do you have that after metromedia how do you have that right well what metromedia said is if you prohibit such signs in the right way it can be upheld but you can't do it the wrong way you can't sweep within that prohibition in a noncommercial content that's exactly what san diego persisted in doing for twenty five more years so there's a right way and the wrong way when people do it the wrong way like trussville or in this case the ordinance should be invalidated when they do it the right way which is to say all noncommercial speech shall always be benefited wherever a sign is allowed it can be allowed as a savings provision or substitution clause that gets them out or you can just say from the get that far off premise this probe the bishan does not apply to noncommercial content ok here they didn't do that in fact if you go through their on premises definition this is that page one thirty five one of your record is the section cited in denial by the city you'll see that they define on premises content to very much benefit on premises activities and business activities you couldn't put the same noncommercial content on th now you go for and they allow public interest messages and this to anyone who's read case law the last thirty years knows it's just micromanagement of content by the government read what you see on one thirty two of the record excerpt you know service clubs and religious signs are allowed but they have to relate to meetings locations fundraising you can't say jesus saves on religious sign you have to say what the city tells you you can say they allow political messages about elections and it illogical or political views but not artistic messages you can't say dance recital at the park you can't you can't do that so there's all manner of noncommercial messages that are  against that is what metromedia said you cannot see if this is the provision that was cited against my client and therefore this whole notion that there is no sustaining is patently  there was no article three standing course article three requires an injury in fact that is traceable to the conduct complained of and that's redress of all he found there is no problem with injury and fact based on the denied applications there were other injuries here being forced into a discretionary process without proper procedural safeguards the courts have held that these are injuries in fact indeed just a few days ago the a panel of the course here what the most narrow decision that ever came out in this area which was clearwater in the eleventh circuit grant paper says clear water it held you can always challenge the basis of denial here the basis of denial is unconstitutional just like in trussville and of course if you're forced against you is an unconstitutional pope at the very least we have to vindicate that interest and a nominal damage or real damages if you please nominal damag every going to repeatedly affirm that such a vindication is a worthwhile pursuit and is redress you maybe one dollar in your attorney's fees but that is redress because you have indicated a constitutional right that the eleventh circuit no great friend of billboards and they just in the trust they'll case a firm and that if this kind of provision is in place and we strike it even though the sign company doesn't get it signed in trussville the billboard company was not awarded permit it just got vindicated that the point that had been forced against it was unconstitutional they awarded nominal damages of one hundred dollars and of course attorneys fees flow there from so we see that even very conservative court far to the right on this issue they and the ninth circuit has has found very recently that in the case just like this vindication should move forward and does perform redress now in the second element the traceability i just want to read from the order of judge hayes on page ten eleven where he said well get outdoors argue that the city denied the permits based on content based restrictions the court is persuaded otherwise the city issued a letter stating its reason for denying applications and as discussed below the court finds the proffered reason is constitutional thus the court finds that the plaintiffs cannot sho causal connection between the injury and the conduct complained of and thus cannot show the requisite causal nexus because it just unquote in other words the court looked at the merits ruled against the plaintiff and then went back and said there was no standing because i think it was constitutional this is the cart before the horse in the worst way every case is looked at putting the merits in what the standing determination has said you can't do that no case that unsuccessful would ever have been found to have standing under this test which is i find you going to lose in the end so i'm going to find you don't have article three standing it's crazy it defies everything that standing is about which is an initial investigation of whether the case should move forward it is not a merit based determination now section three redress ability here the court went to the seventh circuit and found a case called part advertising where there were two separate ordinances there was a sign code there was a zoning co sign company challenge one but constitutional they're appropriate they're not discretionary and they asked throughout their complaint that these things be rectified not that the permits just be issued that wasn't the folk that might have been the focus of five percent of this complaint constitutional vindication was also very important damages were also important as we've mentioned many times so the idea that the only way you can get redress is to have a billboard permit issue is just overly simplistic it is not keeping with the law which allows all manner of vindication in a constitutional case not just the ultimate victory on the side on one issue now i will say this also by the court looking and part of the ordinance supreme court the same problems that are in place now that were in place when get out the words came the california supreme court determined it could not save any portion of the ordinance at that time restrictions like  so called size provision would have to go as well so you can't reverse the severability analysis you have to start from square one what are the challenges they can bring are they unconstitutional if they are can i stagger them and leave left behind and in this case that was knocked out of all the court looked at one part of the ordinance found a little section of it thought would somehow magically transform itself into its own ordinance and  were being sought in this case there was a lot more than that being sought and so we dress in the form of novel damages real damages obviously injunctive relief equitable relief all those things are very much available and sure indeed be awarded at the end of this case and then the reverse severability analysis violates ask one question in ordered you can't just come into court and challenge that you do is unconstitutional unless in some way it's been applied to  you to deny you right that you otherwise claim that your dad that is usually correct your honor why isn't that true here if you can't get the sign then how can you go ahead and start challenging other provisions of the that desert out the way you got look at the order and see what the sign company can challenge and of course it does are up to where this court and unanimously held that they could challenge all the deficiencies in the site ordinance somebody has got to have a commercial interest they should be encouraged to challenge these things because no one else is going to that's what this bring to the abstract well they had been denied the permission to keep their signs out and get out the works in this case has been denied permission to put up signs so there's no abstract your view is we have denied application on the basis  content based denial you don't have on premise contents so you're denied page forty five the record excerpts says it all so it is not like your honor had gleaned from the briefing of the city which is all about a billboard van and these other things content neutral time place and manner that is a fiction created by the cities and i will also go forward and say that in the us the cases well i think like lemon grove a jewel of estate your applications were rejected i believe because they were incomplete correct and so how does that give you standing to challenge other provisions of the city signed ordinance and you say other provisions why not be able to challenge the provision that allowed them to say it was incomplete which was complete fabrication your honor they had so much discretion on of the ordinances are read from you to you from the women grove ordinance for instance it said that the city could require such other m permission as the community development director may require where courts have looked at such infinite discretion provisions for applications for speech they have discarded them for instance the hallandale decision of the eleventh circuit of course  person that is official in government sees someone they don't like or when a teacher if they don't like to apply for a sign and they don't think it's going to be a sign of a like phil just asked for more information that kind of discretion have to be limited by strict criteria you look at the ordinances here they say you've got to have content i mean you have to the permission of the landowner you have to have an application form you have to have designed plans they have criteria and then at the end it says anything else are official thinks maybe he wants and if you look at both through a list and limit growth that's the kind of provisions that they hack then they have a seven day time limit on permitting you understand seven days blew by those ignored it did not get back to our  guys about the applications about thirty days later they get an incompleteness letter so they violated their own code in both instances where seven days per meeting was required now where completeness determinations are infinite in time the courts throw those out ok they used the completeness determination to adopt the new ordinance and to try to preempt this and i would remind the co that just last year this type of fact pattern was just favored in the citizens of valley outdoor versus city of riverside where the court noted the city denied valley's second attempt to submit application materials because according to the city's explanation the papers in precisely stated the shade of gray used on the billboards and the street addresses at which they were located whereas deficiencies of this meager variety were typically remed simple correction letter here the city returned the applicant cation materials and instructed valley to apply a new perhaps not coincidentally the city penned this rejection only one day prior to the amended ordinances effective date instead of granting permit valley concludes the city made sure it kept the ball in the air and tell it to pass a new statute which you could then employ to deny permits to valley and of course in that case the court decided that the standing analysis of the district court  wrong and that the sign company was allowed to challenge what it calls independently enforceable provisions what it held was the district court here in ruling that valley lack standing to  constitutional claims related to the city's conduct in refusing to process the late valve permit applications and it went on to say as such there exists a tenor proclaim that discretionary authority of this nature over expressive activity is facially violative of the first amendment it cites thomas decision from the supreme court young versus any valid decision of this court and the desert outdoor decision of this court given this claim the evidence of the city's allegedly improper rejection of valley's permit applications is indeed relevant quite simply it goes to whether the student's exercise of its statutory authority to grant or denied late power permits for expressive activity arbitrary that's exactly what happened here the applications came in they were for the council they started cranking out an ordinance they were held past the seven day timeframe then they came up with bogus application requirements that had never been applied to anyone else look at the record in both of these cases not one application from any other sign applicant has been submitted that's more complete than what great outdoor submitted these were big thick applications you'll see here in the in the record here these  of design plans and engineering specifications and site plans leases with landowners application forms nothing incomplete at all it is a bogus attempt to escape a reckoning in this case and what city of riverside held last year if you can't you can't get away with that that's certainly not a way to get around standing now just to go back to what you said your honor you said how could you challenge other items i think it's clear  and therefore you have a constitutional violation you notice the ports that have looked at that kind of situation have held that a time limit without teeth without an affirmative entitlement to proceed with the use is unconstitutional once again the eleventh circuit is had two cases on that point artistic entertainment person one robins and red nurses dean they said there has to be an affirmative entitlement to move forward otherwise a seven day time limit means nothing here it does mean nothing know there's a green cover there but we didn't act on that i guess only because we see that we didn't we didn't act on the motion i guess i guess that  isn't appropriate then all right they're filed on behalf of the international municipal lawyers association scenic america california league of cities several other groups in the audience and it goes like this present non conforming applications for new billboards to a city that doesn't want new billboards this part of the scheme intended to create the appearance of injury or standing and then after it's denied as they must be because they all are grossly nonconformance you file a lawsuit against the city and you try to challenge everything and you ignore or downplay the relevant rules in the sign ordinance so i guess on that point you know there is obviously very there is a things in front of the court but you know from the city's perspectives you know what we get in the briefs a lot is well that they deny them as incomplete but then they say you never could have got you know but now they argue when you get here you never could have gotten it anyway that's right and so why if you know what sort of that or they hold on to something and now and a new part of the ordinance comes out so why if turned down upon presentation and the declaration and other once that was they were incomplete or there was this problem or they have size problems but they didn't address the size problems and now we have to find out you know that we deal with that all later that's to illustrate to cities then if your legal position is that they don't have standing on certain things or you're not entitled to certain things why isn't that you know why isn't that the rejection out the gate because we know what the litigation is going to say  most of the focus on you know relevant provisions those which do not relate to the billboards and the goal of course is to invalidate the entire scheme under the theory that if we can knock out the whole thing then there's no valentine regulations on the book there yes standing has been a leading issue in many of these cases and their whole bunch of them all across the country it has been very thoroughly litigated in the eleventh circuit and they have finally because there were two conflicting decisions in the eleventh circuit the clearwater case and the tanner case one said it clear waters said here you are restricted to the parts of the sign ordinance that actually apply to you and the first decision and turner said no that's not correct you can go after the whole thing so they had on bank hearing in the town or case and then the tender on bank panel didn't really get to the standing stuff it was decided primarily on moving this and they said we'll address standing at a later time well the later time was four days later and that was the camp case and it's very clear it's the magnum opus and i recommended very highly and it says if i can shorten it down to just a sound bite if you can only challenge the par the regulation which actually apply to you other cases that have examined this issue in great detail are the eden prairie cases this was one of those that i noticed the court in a twenty eight j letter yesterday  prime versus brentwood there's a line in there to the fact that if you have standing on one aspect of the sign ordinance that doesn't carry over into the whole thing the underlying theme here is just because you want to put up was only a confrontation of a long existing practice that the planners in all three of these cities know very well they cannot limit or favor any kind of noncommercial speech you will see that in the the public to make sure that the staff understands it and to give comfort to the court that there is no violation of the metromedia rules number two and three which are no favoring of commercial speech and no favoritism within noncommercial speech but we must never forget that all three of these cases are really controlled by metromedia rule number one the only part of the case that has a clear majority seven votes says if the city wants to billboards and the service of says it doesn't matter what matt metromedia says and it doesn't matter what the city council decides we can dig into your sign ordinance and find enough little holes to bring it down that's the whole technique i want to point out to the court that the granite state versus fort lauderdale decision which again was in my twenty eight day letter yesterday in that case mr webb presented to the supreme court all of these arguments about standing an was denied in that case two days ago so if it was a serious problem the case law that's come out of the eleventh circuit presumably the u s supreme would've taken it i want to emphasize also that there is a false premise underlying the billboard position in all of these cases and the false premise is that there is expressive conduct in building a new billboard that is false that is pure conduct it is not speech it is not expression of any kind it's merely the way that these companies go into business so they can sell display space to customers advertisers they're not before the court we don't know who they are we don't know where they are we don't know what their message may be and all of these denials were strictly on the basis of structural and location factors not one of them has any relationship want ever to any kind of message now the distinction between the device which might be used for communication and the message which can be placed upon it if it is properly and legally built you can find that in a case called graph versus always remember that the first amendment exists to protect expression not the building of structures not the pursuit of profit all of these all of these cases in the position of the billboard company confuses the position of the seller of advertising space with the messages from future customers who are not currently known it's very much like the field of dreams movie if we build it they will come san diego has not allowed the construction of a new billboard in over thirty years since the decision in metro media which really only settled the issue of whether the existing operating legally permitted billboards could stay in business they're the very different nature of a billboard from other kinds of signs first of all they are very very large typically six hundred seventy two square feet they're usually made of metal the ones that are coming out of the factories today are estimated to have a useful seventy two hundred years so therefore it is permanent pollution out of the blue scape that's caused by new billboards that's what the cities don't want furthermore billboards caused a new interruption of the public view that's in cart excuse me in contrast to us a big sign or a sign it's put on the side of a building because the new interruption is already caused by the building in the case of a free standing sign at a store or a car dealer whatever you have integration between the sign and the use on that lot and it is that integration where the car lot is the principal use and the si used that makes that acceptable to the city on the other hand the billboard is a separate and principal use which doesn't serve any other activity on the lot those are the principal reasons that cities don't like billboards and typically ban them i want to say also that in all of these cities there was a ban on billboards in the beginning even before the billboard people came around but the revision of the sign ordinance was to clarify the definitions making it more legally you know but beyond winning did you think that the analysis was wrong in any of them and that there's an alternate way to analyze it that you know more stand now my favorite of course is the san diego decision because it's the most thorough  and address was basically all of the issues that are presented in all three cases but at this moment i can't think of any aspect of any of the trial court decisions that i would disagree with what the standard issues that you're making that you're making now yes i mean my argument exactly i don't think there's any damage anywhere all right with him respond to white his you know white how do you perceive his argument i respond to what his argument is on that on damages i didn't hear him talking about damage and i heard him talking about  constitutional parts of the sign ordinance and he was talking about the basis for denying the signed applications when they were permitted or presented the declaration of the clerk who told him no go away give several different sections that's one twenty seven point zero three one zero three five zero three zero five one forty two twelve zero one and of following sequence and if you read all of those you will see that the signs have to have either on premise advertising or public interest messages now as it's interpreted and applied and has been for decades by the standard ministration that means on site commercial and the term public interest w interpreted in the same way the courts talk about noncommercial messages anything that's not selling goods services seeking clients seeking customers you want to put up a happy birthday sign you want to protest the war you want to protest this or that go ahead that was their standard operating procedure for a long long time and there was no change at all and i don't own the issue of damages i don't think there are any damages anywhere in any of these three cases because human judge strong of pointed out they ask for something that's clearly banned and the ban is clearly constitutional when you only propose illegal structures there's no reasonable or just basis for giving damages none no ok later during the litigation i had all of the administrative people go through and analyze the information they had at that time and all these applications and prepare and detail showing for the judge as to why all of these be illegal for purely structural and location reasons even ignoring the factor that they were to be used for off site commercial messages they were all too big every single one  webb mentioned the valley outdoor versus the city of riverside the controlling factor in that case was that the city's code granted an absolute right to have an after the fact council know that a ban on billboards is unquestionably constitutional and they also know that if they can get a new bill morn anyway that they're going to be set up for a very healthy cash flow for many many decades and so they try to figure out some way to get around the supreme court holding and around the city council policy decision so we can put up new billboards anyway and the way they do i by slipping into the shoes of phantom plaintiffs this is called over breath standing well who are they talking about people we don't know people who are not interested in dole boards people who may be out there some on speech the prior restraint jurisdiction talks about censorship schemes are we going to give a parade permit to people of suitable character and that kind of thing we're not regulate none of these cities are regulating message cont any way all of these decisions are on how big is the sign and where is it these are structural decisions it's plain zoning stuff there is no free speech regulation whatever whether the alleged harm can be redressed however the court finds that under plaintiff's theory the exception to the standing requirements was twaddle the constitutional rule i think that's very insightful and it's certainly in harmony you but other people might be harmed in their speech chilled by it then you can you can be granted vicarious standing on their behalf but there are a lot of well warnings about was excuse me was in effect before the lawsuit was filed in the san diego case that was just a few clarification provisions which were enacted after the lawsuit was filed the crucial issue here is whether there is any indication the city intends to revert to the prior law and in all three cases the answer is very clearly no movements is the key criterion insurer vista and in lemon grove and there's a analysis of it also in the san diego case now one of the arguments that often comes up in moving this is well just because you have the right or the power to go back to the old way that means the case is not moot well that only applies in private party disputes or where there's clear evidence that the city or the other governmental body intends to go back to the old way as soon as the litigation is resolved none of those factors are present here in  there's any discretionary approval in any of these things i don't see it but even if there is something there it's all directed to zoning issues not speech there is no regulation of expression one dollar and nominal damages from a court of appeal he's going to go right back to the trial court and present a gigantic bill for the taxpayers to pay well that's improper the only case where something like that has happened is the trust will case he did get a ruling from the court of appeal saying he was intitled to a nominal damages award because the specific provision under which the bill boards were denied  on constitutional when he went back to the trial court and made if emotion it was denied furthermore to have any kind of nominal damage award there must be a clear violation of s fundamental constitutional right that's the rule it is not satisfied here there's no violation of any constitutional right in any of these three cases there is no constitutional right to put up billboards in the city that says we please read the ordinances this idea of a ban on billboards is a fiction created by the city council it's creative but it's not true the city of san diego didn't define the word billboard the supreme court also didn't say you can ban billboards no matter how they are defined if a billboard isn't signed with off premise commercial and noncommercial messages then you can't ban them that's what metromedia says so there's a right way and there's a wrong way here san diego did it the wrong way so please read the ordinances please recognize that the denial was one hundred percent based on the provision that was invalidated i metromedia all these after the fact affidavits concocted by mr morse in a year and a half into the case have nothing to say about what actually happened when these people went into city hall and applied for their application apply for their side now the ninth circuit has never denied a sign company standing ok so we're talking about an aberrant will strain of case law from the eleventh circuit this court has had a lot of cases sign companies have always been afforded standing which makes sense metromedia had seven justices come down clearly on the side of this sign company being not only allowed but encouraged to bring such cases because no one without a commercial interest is going to is what you say around here we've got ten thousand jurisdictions in the circuit and there's a lot of bad sign wouldn't because they think it's outrageous that five cases are on appeal about bad sign ordinances well i think that's it's the tip of the iceberg unfortunately because stevie's feel safe in violating rights in sign ordinances because a lot of decisions have come down where sign companies and those who are motivated to challenge have not been allowed to get any type of indication that's unfortunate but the ninth circuit has never denied standing i will say this judge fairest of seattle was sitting by designation down in the eleventh circuit does sitting visiting down the eleventh circuit on the town or versus bay panel came out with  first decision and he joined the opinion that said this sign company has full standing show was withdrawn at this ordinance will listen to you that's the only ninth circuit judge who's ever sat on one of these type stations and he came down squarely in favor of what the ninth circuit's always said sign companies should be encouraged to do this now in metro media this sign company was allowed challenge exemptions for you know religious signs or public signs political signs because those exemptions were not something that could benefit from an eleventh circuit it's just recognize that as well in this camp decision that the cities want you to pay so much attention to sometimes different in some cases for instance and women grow there about twelve hundred square foot banners but those were temporary now in san diego there is no time limit on the construction or real estate message signs and they can say anything you want within those was passed you know a year into this case now on the move this issue move this is not even relevant if the same provisions are left in place ok now that's all we're saying here the court should go on if you look at the chula vista ordinance it now says in section one thousand point six two point eight one zero i'm sorry eight hundred subsection e so much other this is the permitting provision such other information as planning director ma y reasonably request so in other words they can still do exactly what they did to get outdoors which is make up the requirements as a preventative legal strategy to prevent us from getting the court until they have a new ordinance passed the this court has looked at that exact scenario last year in the city of riverside case and said no that's that's not going to be acceptable if you look at the lemon grove ordinance  other information as the community development director may require that's exactly what we were saying was the problem in the first place they haven't changed it why would you find a case moved if they haven't changed the crux of the challenge and what the supreme court said in the northeastern florida decision is move this isn't even an issue if they haven't changed the substance of the order of the ordinance and yes they did change some important aspects and i don't court to go back and look at injunctive relief against something that's been changed but to the extent something hasn't been changed and it needs to be dealt with and as it goes to women growing chula vista on the on the permeating discretion completeness review the time limits without any teeth those problems still exist and they should be dealt with now to the extent they don't exist what it implies it is that there was a problem for instance now they have a they blew past the time limit and could have taken six hundred two years to do the completeness to terminate and that was a laugh now they have a twenty one day completeness review so that emphasizes to you that there is damage maybe it's nominal i've shown in the briefs we think there was real hard damages here but there was damage and there was constitutional enforcement of the unconstitutional law against these people that allowed this to lay as a preemptive legal strategy purely based on the discretion which is ordinance that should never have allowed thank you thank you these three cases that have been consolidated for argument will stand submitted the last case on calendar today is outdoor media