FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 January 14, 2005 

 THOMAS K. KAHN 

 CLERK

 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________

No. 03-15517

______________________________

D.C. Docket No. 02-00012CV-3- LAC/MCR

SEAY OUTDOOR ADVERTISING, INC.,

Plaintiff-Appellant,

versus

CITY OF MARY ESTHER, FLORIDA, 

JOHN LULUE, as an individual and in his

capacity as City Manager, et al.,

Defendants-Appellees.

_______________________

Appeal from the United States District Court for the 

Northern District of Florida

_______________________

(January 14, 2005)

Before EDMONDSON, Chief Judge, PRYOR and FAY, Circuit Judges.

FAY, Circuit Judge:
2

In this sign ordinance case, Plaintiff-Appellant Seay Outdoor Advertising, Inc.

(“Seay”) filed a complaint challenging as unconstitutional the repealed version of an

revised local ordinance governing the erection and maintenance of signs in the City

of Mary Esther, Florida (“Mary Esther”). Seay’s Complaint sought to permanently

enjoin enforcement of the repealed ordinance, to compel Mary Esther to grant permits

which would allow Seay to erect seven billboards within the city limits, and requested

damages, costs, and attorneys’ fees. Despite the fact that Mary Esther had repealed

the complained of ordinance two months prior to the institution of the suit, Seay’s

Complaint did not challenge the new version of the sign ordinance. On cross-motions

for summary judgment, the district court found certain portions of the challenged

ordinance unconstitutional but held those portions severable from the remainder of

the ordinance. In so doing, the district court further upheld Mary Esther’s ban on

billboards. The court also denied Seay’s request for damages and motion for

attorneys’ fees and costs. Seay now appeals. After thorough review, we believe the

case is moot and, therefore, nonjusticiable. Accordingly, we reverse the district

court’s grant of summary judgment and remand with instructions to dismiss for lack

of subject matter jurisdiction. 

BACKGROUND

The facts in this case are not in dispute. Seay is an outdoor advertising
3

corporation that buys or leases land to construct signs for commercial and

noncommercial speech. Mary Esther is a small municipality, approximately two

square miles in area with a population of approximately 4,055. Seay contracted with

property owners in Mary Esther to construct seven billboards throughout the city. To

that end, on June 7, 2001, Seay submitted seven applications for permits to post the

signs. The erection of signs in Mary Esther was governed by Article 16 of Mary

Esther’s Land Development Code (the “Repealed Sign Ordinance”). On that very

day, all seven applications were denied solely on the basis of Section 16.00.01(G) of

the Repealed Sign Ordinance, which explicitly disallowed billboards. Seay did not

appeal these rejections. Instead, Seay engaged the Mary Esther City Attorney in

communications in an effort to resolve the matter. In the interim, on November 5,

2001, Mary Esther adopted Ordinance 2001-12 (the “New Sign Ordinance”), which

repealed and replaced the Repealed Sign Ordinance, however, the ban on billboards

remained intact. Because the ban on billboards remained, Seay did not resubmit its

applications.

Seay filed suit against Mary Esther on January 17, 2002, two months following

the enactment of the New Sign Ordinance. Interestingly, the Complaint claims only

that the Repealed Sign Ordinance is unconstitutional, and does not reference or

challenge the New Sign Ordinance. Moreover, although Seay’s permits were denied
4

because of the particular provision banning billboards, Seay does not claim that that

particular provision is unconstitutional. Rather, Seay claims that the Repealed Sign

Ordinance is unconstitutional in its entirety because it violates the First Amendment

to, and the Equal Protection Clause of, the United States Constitution and has resulted

in an unconstitutional taking. Seay sought a permanent injunction precluding

enforcement of the Repealed Sign Ordinance, as well as damages pursuant to 42

U.S.C. § 1983, and costs and attorneys’ fees pursuant to 42 U.S.C. § 1988.

Mary Esther moved to dismissthe complaint on, among other things, mootness

grounds. The district court denied Mary Esther’s motion, finding that the case had

not been rendered moot by the New Sign Ordinance. In so holding, the district court

applied the voluntary cessation doctrine and stated as its reasoning that Mary Esther

had not established that the likelihood of further violations was sufficiently remote

to dismiss Seay’s complaint as moot. In addition, the Court stated that Seay’s

potential vested right to the permits may have also been sufficient to defeat Mary

Esther’s mootness argument.

The parties later filed cross-motions for summary judgment, and although the

district court found several provisions of the Repealed Sign Ordinance

unconstitutional, it determined that these invalid provisions were severable from the

remainder of the Repealed Sign Ordinance. Accordingly, the court denied Seay’s
5

motion and granted summary judgment in favor of Mary Esther. The district court

further concluded that Seay was not entitled to any damages, costs, or attorneys’ fees.

Seay now appeals.

DISCUSSION

Mootness is the threshold issue in this case. While neither party raises this

issue on appeal, mootness is a jurisdictional question under Article III, which must

be raised by the court. See, e.g., C & C Prods., Inc. v. Messick, 700 F.2d 635, 636

(11 Cir. 1983). The Article III requirement of a case or controversy is a fundamental th

aspect of our jurisdiction. If a suit is moot, it cannot present an Article III case or

controversy and the federal courts lack subject matter jurisdiction to entertain it.

Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11 Cir. th

2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11 Cir. 2001)). Mootness

th

can occur due to a change in circumstances, or, as here, a change in the law. Id.

“When a subsequent law brings the existing controversy to an end the case becomes

moot and should be treated accordingly.” Coalition for the Abolition of Marijuana

Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11 Cir. 2000) (citations th

omitted). Thus, before we decide the legal questions posed by Seay, we raise sua

sponte the question whether the New Sign Ordinance renders moot Seay’s

constitutional challenge to the Repealed Sign Ordinance. In finding this case
6

justiciable, the district court stated that Mary Esther was conceivably free to re-enact

the offending provisions of the Repealed Sign Ordinance at any time and that Seay

may have acquired vested rights under the former version of the NewSign Ordinance.

We disagree.

I.

Because of the possibility that the defendant could simply return to his old

ways, “[i]t has long been the rule that voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and determine the case, i.e., does not

make the case moot.” Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th

Cir. 1992) (internal quotations omitted). A case may nevertheless be moot if the

defendant can demonstrate that (1) "there is no reasonable expectation that the alleged

violation will recur," and (2) "interim relief or events have completely and

irrevocably eradicated the effects of the alleged violation." County of Los Angeles

v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations

and internal quotations omitted). “However, governmental entities and officials have

been given considerably more leeway than private parties in the presumption that they

are unlikely to resume illegal activities.” City of Sunrise, 371 F.3d at 1328-29. See

also Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d

Cir. 1992) (“Some deference must be accorded to a [legislative body’s]
See, e.g., City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 102 S.Ct. 1070, 71 1

L.Ed.2d 152 (1982) (declining to find moot when the City expressly announced an intention to

reenact the old language of a challenged law if the appellate court vacated the district court’s

holding that the language of the statute was unconstitutionally vague); Northeastern Florida

Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 113

S.Ct. 2297, 124 L.Ed.2d 586 (1993) (declining to find moot when law that replaced repealed law

still potentially disadvantaged the plaintiff). 

See, e.g., Christian Coalition of Alabama v. Cole, 355 F.3d 1288 (11 Cir. 2004) 2 th

(finding case moot where defendants submitted to the court a representation that the wrongful

conduct would not be repeated); Jews for Jesus v. Hillsborough County Aviation Authority, 162

F.3d 627 (11 Cir.1998) (finding case moot where the changed policy was the result of th

7

representations that certain conduct has been discontinued.”); Ragsdale v. Turnock,

841 F.2d 1358, 1365 (7 Cir. 1988) (“[C]essation of the allegedly illegal conduct by th

government officials has been treated with more solicitude by the courts than similar

action by private parties.”).

Constitutional challenges to statutes are routinely found moot when a statute

is amended or repealed. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582, 109

S.Ct. 2633, 105 L.Ed.2d 493 (1989); City of Sunrise, 371 F.3d at 1329; Harrison &

Burrowes, 981 F.2d at 59. The Supreme Court cautions against holding a challenge

to a repealed law moot if the law is reasonably likely to be reenacted or when it is

replaced by another constitutionally suspect law. “Likewise, this Court has 1

repeatedly held that the doctrine of voluntary cessation does not apply in cases where

challenged laws have been repealed unless there is some reason to believe that the

law may be reenacted after dismissal of the suit.” City of Sunrise, 371 F.3d at 1329.2
“substantial and conscientious deliberation,” and had been “consistently applied” since its

enactment). 

8

 In City of Sunrise, this Court recently addressed similar issues under nearly

identical circumstances. In that case, as here, an outdoor advertising company sued

a city claiming that the sign code was unconstitutional. Prior to the filing of the suit,

as here, the old sign code was replaced by the city with an amended sign code that

eliminated most of the constitutionally infirmprovisions while continuing to prohibit

billboards. The Court held that the doctrine of voluntary cessation did not save the

action from being rendered moot by the city’s amendment of the code. In so holding,

the Court was persuaded that the city would not re-enact the old sign code by counsel

for the city’s express disavowment at oral argument of any intention of defending the

old sign code, and by the city’s prompt amendment of the sign code in response to a

letter from the plaintiff, before the city was ever sued. The Court found absolutely

no indication that the city repealed its old sign code in bad faith.

Similarly, in the case at hand, enactment of the New Sign Ordinance was

prompted by communications from Plaintiff’s counsel and preceded the filing of this

suit by two months. In addition, counsel for Mary Esther, likewise, expressly

disavowed at oral argument any intention of re-enacting the Repealed Sign

Ordinance. Accordingly, the voluntary cessation doctrine is inapplicable, and will
In City of Sunrise, the Court contemplated that “if the City of Sunrise did nurture the 3

intention of reinstating the old, purportedly unconstitutional Sign Code, and actually adopted the

Amended Sign Code as a temporary measure whenever another lawsuit appeared on the horizon,

[the Court] would plainly forbid it from doing so.” 371 F.3d at 1320. We adopt this warning and

caution, here, against such “flip-flopping.”

9

not save this case from a mootness determination. 

3

II.

We must next examine whether Seay possessed a vested right to the sign

permits at the time of application. State law dictates whether a vested right has been

created, and again, we are guided by our recent decision in City of Sunrise, where we

engaged in a thorough and extensive analysis of applicable Florida law. As discussed

in City of Sunrise, in order to claim a vested right, Seay must show one of the

following circumstances: (1) that it has reasonably and detrimentally relied on

existing law (equitable estoppel); or (2) that Mary Esther has acted in a clear display

of bad faith. 371 F.3d at 1334. Neither circumstance is present in this case.

A. Equitable Estoppel

In order to invoke the doctrine of equitable estoppel, Seay must show that “it

has incurred substantial expense in reasonable reliance on existing law.” Id. at 1338.

Similar to the sign company in City of Sunrise, there is no evidence that Seay has

incurred any significant expense in reliance on the Repealed Sign Ordinance. Indeed,
10

the Repealed Sign Ordinance, on its face, precluded the construction of billboards,

the very signs contemplated by Seay. Therefore, there is no basis to find that Seay

“reasonably relied” on the provisions of the Repealed Sign Ordinance. 

Moreover, Seay’s standardized written lease agreements provide for no money

to be paid to the landowners until the date of construction of the billboards. The

billboards were never constructed. Seay has not paid any money to the landowners

with whom it entered into contracts. There was no final lease agreement between

Seay and the landowners for at least two of the sign permit applications submitted to

Mary Esther. It does not even appear that Seay incurred any expense in preparing the

permit applications, as the construction plans for the billboards were not site specific.

Given all of this evidence, it is clear that there was no equitable estoppel that could

conceivably rise to a vested right in the sign permits.

B. Bad Faith

In the absence of equitable estoppel, in order to obtain a vested right, Seay

must show that Mary Esther acted in bad faith in denying the sign permits. City of

Sunrise, 371 F.3d at 1336. As explained in City of Sunrise, the Florida cases that

have found bad faith have done so in instances where it was obvious that the

municipality was purposely attempting to avoid granting the permit or license to the
11

plaintiff. Id. Examples of such situations include “an ‘emergency ordinance’ passed

while the application was pending,” “selective and erroneous enforcement of an

arguably unconstitutional provision of the law,” and “deliberate delay of the issuance

of a permit until after a building moratorium went into effect.” Id. at 1337-38. None

of these scenarios, or anything akin to them, is present in this case. First, because

there are no off-site billboards in Mary Esther, Seay cannot claim that Mary Esther

selectively enforced its Repealed Sign Ordinance against Seay. Second, the

circumstances surrounding Mary Esther’s amendment to the allegedly

unconstitutional Repealed Sign Ordinance are virtually identical to those in City of

Sunrise, where no evidence of bad faith was found. In City of Sunrise, not only did

the city amend itssign code to eliminate the constitutionally questionable provisions

before the sign company filed suit, but also left intact those provisions under which

the sign company’s permit was denied. Id. at 1339. Similarly, Mary Esther repealed

and replaced its allegedly unconstitutional sign ordinance two months before Seay

initiated litigation, and the New Sign Ordinance retained the provision pursuant to

which Seay’s permits were denied, namely, the provision prohibiting the erection of

billboards. Indeed, as we see it, the allegedly unconstitutional aspects of the

Repealed Sign Ordinance had nothing whatsoever to do with the rejection of Seay’s

permit applications. 
Ordinance 2001-12 repealed the original Sign Ordinance in its entirety and enacted a 4

completely revised Sign Ordinance, which seemingly removed all of the language objected to by

Seay and cured any other challenged defects.

12

Accordingly, in this case, we can find neither equitable estoppel nor bad faith,

and accordingly, Seay does not possess a vested right to any sign permits. 

III.

Having found that Mary Esther has no intention of reenacting the Repealed

Sign Ordinance and that Seay possesses no vested right in a sign permit, the case may

still be justiciable if the New Sign Ordinance containsthe same constitutional defects

as its predecessor. “[A] superseding statute or regulation moots a case only to the

extent that it removes the challenged features of the prior law. To the extent that

those features remain in place, and changes in the law have not so fundamentally

altered the statutory framework as to render the original controversy a mere

abstraction, the case is not moot.” City of Sunrise, 371 F.3d at 1342-43 (quoting

Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11 Cir. 1992)). th

Upon review of the New Sign Ordinance, we believe that Seay’s challenges to

the Repealed Sign Ordinance are moot because they seem to have been remedied by

the New Sign Ordinance. However, if the challenged provisions of the New Sign 4

Ordinance are severable from those portions of the Repealed Sign Ordinance that
13

actually caused the denial of the permit application, there is no point in evaluating

Seay’s arguments as to those provisions. City of Sunrise, 371 F.3d at 1347.

“Severability of a local ordinance is a question of state law.” Id. (citing City

of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 2152, 100

L.Ed.2d 771 (1988)). Under Florida law, the test for severability is as follows:

When part of a statute is declared unconstitutional the

remainder of the act will be permitted to stand priovided:

(1) the unconstitutional provisions can be separated from

the remaining valid provisions, (2) the legislative purpose

expressed in the valid provisions can be accomplished

independently ofthose which are void,(3) the good and the

bad features are not so inseparable in substance that it can

be said that the Legislature would have passed the one

without the other and, (4) an act complete in itself remains

after the invalid provisions are stricken.

Id. at 1348 (citing Smith v. Department of Insurance, 507 So.2d 1089 (Fla. 1987)).

“According to Florida law, then, the unconstitutional part of a challenged statute

should be excised, leaving the rest intact and in force, when doing so does not defeat

the purpose of the statute and leaves in place a law that is complete.” Id. 

Further bolstering the severability of the New Sign Ordinance is Mary Esther’s

express, codified legislative desire to keep as much of its Sign Ordinance as possible:

Severability: If any section, subsection, paragraph,

subparagraph, division, subdivision, clause, sentence,

word, or provision of this ordinance shall be adjudged by

a court of competent jurisdiction to be invalid or
For example, City Ordinance 2001-12, enacting the New Sign Ordinance, states that “the 5

City Council of the City of Mary Esther finds and determines that the regulation of billboards as

set forth herein will improve the beauty of the City of Mary Esther, foster overall improvement to

the aesthetic and visual appearance of the city, preserve and open up areas for beautification on

public property adjoining the public roadways, increase the visibility, readability and/or

effectiveness of on-site signs by reducing and/or diminishing the visual clutter of off-site signs,

enhance the City of Mary Esther as an attractive place to live and work, reduce blighting

14

constitutional, such portion shall be deemed a separate,

distant, and independent provision and such judgment shall

not affect, impair, invalidate, or nullify the remainder of

this ordinance. 

New Sign Ordinance, Section Two. Moreover, Florida law states that “[a]lbeit not

binding, a legislatively expressed preference for the severability of voided provisions

is persuasive.” City of Sunrise, 371 F.3d at 1349 (citing Moreau v. Lewis, 648 So.2d

124, 127 (Fla. 1995) (citation omitted)). To rule that the challenged provisions were

not severable from the remainder of the New Sign Ordinance “would seriously

infringe on the notion of legislative autonomy and ignore Florida’s doctrine of

severability.” Id. 

The denial of Seay’s permit applications was based solely on the provision of

the Repealed Sign Ordinance prohibiting billboards. To the extent that any

purportedly unconstitutional provisions of the Repealed Sign Ordinance were retained

in the New Sign Ordinance, we find that the ban on billboards, which is never

challenged by Seay, continues to further the purpose of the New Sign Ordinance in

the absence of the challenged provisions. The regulatory purpose of the undisputed 5
influences, and improve traffic safety by reducing driver distractions.”

15

sections of the Repealed Sign Ordinance – avoiding eyesores and traffic disruption

– would not be destroyed by the elimination of the suspect content regulations.

Therefore, we find that any portions of the Repealed Sign Ordinance retained

by the New Sign Ordinance that arguably may be unconstitutional are fully severable

from the rest of the law, particularly the ban on billboards, which was the provision

that lead to the rejection of Seay’s permit applications. Therefore, we need not – and

do not – evaluate whether other portions of the New Sign Ordinance may be

unconstitutional because any decision on the merits can have no bearing on the case

before us. See id. “Indeed, if we were to evaluate the validity of certain provisions

of the [New Sign Ordinance], knowing that the result of this inquiry could have no

effect on the result in this case, our pronouncements would be essentially advisory in

nature.” Id. 

Accordingly, we hold that the challenge to the Repealed Sign Ordinance is

moot, and this Court, therefore lacks subject matter jurisdiction.

REVERSED and REMANDED, with instructions to DISMISS for lack of

subject matter jurisdiction.

 
16

EDMONDSON, Chief Judge, concurs in the result.