### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT February 23, 2004 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-16718

________________________ D. C. Docket No. 98-00597 CV-J -21-HTS CAFÉ EROTICA OF FLORIDA, INC., a Florida Corporat

ion, CAFÉ EROTI

CA / WE DAR

E TO BARE / ADULT TOY S / GREAT FO OD / EXIT 94, INC., a Flori

da Corporation, PlaintiffsCounter-Defenda

ntAppellees.

versus ST. JOHNS COUNTY, a political subdivision o f the State of Flor ida DefendantCounter-Claim

antAppellant.

________________________ No. 03-11385

________________________ D.C. Docket No. 01-00342 CV-3 -J-21-HTS2

CAFE EROTICA/WE DA RE TO BARE /ADULT TO

YS/GREAT F OOD/EXIT 9 4, INC., a Florida Corporatio n, PlaintiffAppellee,

versus ST. JOHNS COUNTY, a political subdivision of the State of Florida , DefendantAppellant.

________________________ Appeals from the United States District Court for the Middle Dist

rict of Florida

_________________________ (February 23, 20 04) Before DUBIN

A, WILSON

and KRAVITCH, Circuit Judges. WILSON, Circuit Judge: I. BACKGROUND This appeal consolidates two cases involving facial and as-applied challenges to the St.

Johns County, Flo

rida, sign ordinanc e (“Ordinance” or “Ordinance 99 -51"), codified a s Article VII of

the St. Johns County

Land Development Code (“LDC”). Each case presen ts identi cal legal i ssues. We1 One banner rea d, “Karen Brun

er is An Incom

petent County

Official.” Kar

en Bruner is the public official who issued citations to Café. Another read, “James Acosta is a fat ass Barney Fife. He has cost the county thousands of $ in lost lawsuits for using selective [e]nforcements.” Mr. Acosta is the Supervisor of Code Enforcement for St. Johns County. 3 review the grant o f summary judgment in fa

vor of appellees, Café Erotica of Florida, Inc. (“Café” or “Ca fé Erotica”), and Café Erotica / We Dare to Ba re / Adult Toys / Great Food / Exit 94, Inc. (“We Dare to Bare”). The first case in

volves Café Eroti

ca, an adult enter

tainment establ

ishment in St. Johns County (

“County”) , Florida. Caf

é has advertised its business on billboards located a

long Interstate 95. County officia ls issued several ci

tations to Café for constructing signs on its business premises, advertising on the side of a truck, and erecting “political message” banners 1 without fo llowing t he County’s required perm

itting procedures. On June 19, 1998, Ca fé challenged the th

encurrent St. Johns County sign ordinance, Ordinance 90-9. The district court issued a preliminary injunction against its enforcement. The County subsequently passed four new versions of

its sign ordinance, f

inally enacting Ordinance 99-51. In the other case,

We Dare to Ba

re brought a facia

l challenge against Ordinance 99-51, and also alleged that the County applie

d Ordinance 99-51 against it in an unconst

itutional manner

with respect to a bi

llboard it erected

along Interstate 95. W

e Dare to Bare a

rgued that the County

took an imperm

issibly long2 The billboard at issue was erected by Jerry Sullivan, incorporator and president of approximately thirty-five Florida corpora tions, including We Dare to Bare and Café Erotica. The billboard contains the words “Café Erotica,” “We Dare to Bare,” “Grea t Food,” “Adult Toys,” and “Exit 94, Inc..” The paint colors call the viewer’s attention to the phrases “Café Erotica” and “We Dare to Bare.” A small sign is affixed below the billboard facing and reads, “ Fish Camp,” and includes a telephone number. Mr. Sullivan did not obtain a permit for the structure. Further, the structure wa

s erected on pro

perty owne

d by neither

We Dare to Bare

nor Café Erotica

, with no business activities of either corporation conducted there. The County issued a notice of violation on January 30, 2001. The sign has since been removed.

3 Section 7.00.01 sets forth the time limits in which St. Johns County must approve or deny a sig n permit.

4 Section 7. 00.08 descr ibes the app eals proces s and sets t ime limit s for challe nging a permit denial.

5 Section 7.03.01 set

s forth the requir

ements for “spec

ial use signs,” a

nd specifically limits “political message signs” to thirty-two square feet, or six square feet if locate d in a residential distr

ict.

6 The district court in We Dare to Bar e granted We Dare to Bare’s Summary Judgment Motion “for the reasons and to the extent set forth in the [Café] Court’s December 4, 2002 Order.” 4 time to render

its licensing decision

and imposed addit

ional requirem

ents upon it not imposed on sim

ilarly situated

businesses. 2 Both district courts p ermanently enjoined the County

from enforci

ng Ordinance 99-51 and granted summary judgm ent to the plaintiffs. Each district court declared Se

ctions 7.00.01, 3 7.00.08, 4 and 7.03.01 5 of Ordinance 99-51 unconstitutional, and determined tha t these sections could

not be severed from

the rest of Article VII of the LDC. 6 The district courts confined their analyses to Ordinance 99-51. However, after enacting O

rdinance 99-51, the

County ame

nded its sign regulation

, enacting5

Ordinance 01-34 on M

ay 15, 2001. W

e Dare to Bare a

ttempted to cha

llenge Ordinance 01-34, arguing that it is substantively the same as the predecessor law and contains the sam

e constitutional flaw

s. Rather than hav

ing the parties am

end their pleadings, the district court ruled only on the constitutionality of Ordinance 99-51, as the challe

nged provisions of Ord

inance 99-51 were

substantially the same under the new ordinan ce. See Coalition for the A bolition of Marijuana Prohibition v. City

of Atlanta , 219 F.3d 1301, 1310 ( 11th Cir. 2000) (“[W]hen an ordinance is repea

led by the enact

ment of a super

seding statute, then

the ‘superseding statute or regulation moots a case only to the extent that it removes challenged featur

es of the prior law . To the extent tha t those features re

main in place, and changes in the law have not so fundamentally altered the statutory framework a

s to render the origi

nal controversy

a mere abstr

action, the case i s not moot.’”) (

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

consider only the

constitutionality

of Ordinance 99-51 in this appeal. Specifically

, we consider appe

llees’ facial challenges to sectio ns 7.00.01, 7.00.08, and 7.03.01 of Ordinance 99-51, taking into account other provisions that may affect the constitutiona lity of those provisi ons. Appellees assert two facial challe nges. First, they

argue that Ordina

nce 99- 51 is a content-based

restriction on speec

h because certain provisions favor6

commercial speech over political speech. Specifically, appellees argue that because the Ordinance limits “political message signs” to thirty-two square feet while allowing com

mercial billbo ards to be as large a s 560 square feet, the County impermissibly discriminates against political speech. Second, appellees a rgue that the permitting r

equirements of

Ordinance 99-51 ac

t as an unconstitutional

prior restraint because the Ordinance does not contain the required procedural protections for lice

nsing schemes pur

suant to FW/PBS, Inc. v. City of Da llas , 493 U.S. 215 (1990). The County res

ponds that Ordinance

99-51 is a constitutiona

l contentneutral ordinance.Under the County ’s reading of the Ordinance, both on- premise and off-prem

ise signs can contain c

ommercia l and noncomm

ercial content. T

hus, according to the Count

y, political m

essages can be plac ed on billboards. Th e County admits that it regulates various types of signs differently, but contends that any differences in treatmen t are due solely

to content-neutral f

actors related to safety and aes

thetics. The Count

y believes that n

othing in the Ordinance “allows” it to deny a permit based on a sign’s content. The County, however, admits that because the Ordinance treats different types of signs differently, the content of a sign must be “considered for determining the location and duration of a sign.” II. APPLICABLE ORDINANCE PROVISIONS7 “Outdoor advertising display” is defined in the LDC a s “any letter, figure, character

. . . marquee sign, design, poster [etc.] which shall be so constructed, placed, attached . . . so that the same shall be used for the attraction of the public to any place, subject, person, f irm, corporation . . . whatsoever, which is displayed in any manne r whatsoever outdoors.” LDC § 12.01.00.

8 The “Standard Building Code” is the “latest edition of the technical regulations for Structures as promulgated by the Southern Building Code Congress [I nternational], Inc. and adopted by St. Johns County.” LDC § 12.00.01. 7 Ordinance 99-51 requires anyone wishing to erect a sign larger than fifteen square feet in area to ob tain a sign permit. See LDC § 7.00.01 & § 3.09.08. Further, the LD C requires a perm it for all outdoor adve

rtising displays. 7 Café’s banner is a “sign” within the above definition, as are the billboards that Café wishes to construct.Thus, Café woul d have to obtain a perm

it before erectin

g these structures. The County Adm inistrator of St. Johns County (“ County Administrator”) makes all permitting decisions in accordance with the Standard Building Code. 8 See LDC § 7.00.01. Appel lees c halle nge v ariou s sect ions of the Ordin ance s ettin g fort h the t ime in which the County

must perform

its obligations. Or

dinance 99-51 states: Applications for Si

gn Permits shal

l be approved or denie

d, by the County Administrator, within fourteen (14) days of submittal of a fully compl

eted application. I

f more inform

ation is required fr

om the applicant . . .,

the fourteen (14) d

ay period shall r

un from recei

pt of that additional information. If the applicant certifies in writing that the application is com

plete, the fourteen (14) day per iod shall run from the date o f the County’s receipt of that w

riting.9 Notably, Or dinance 01-34 am

ends this section of

the LDC, and a

llows the County Adm ini str ato r th irt y days to d eny o r app rov e a fu lly c omp let ed s ign a ppl ica tio n an d tw ent y days to notify the applicant of any deficienc ies. If the application is not approved or denied within the thirty-day period, the new Ordina nce deems the sign permit to be denied.

8 LDC § 7.00.01(C). 9 Any permi

tting decision ma

y be appealed to the Board of County Commissione

rs within thirty

days of the deci sion. The Board of County Commissioners has fifteen days to render a written decisi on. See LDC § 7.00.08. This decision ma

y be appealed to the Circuit Court w ithin thirty day

s. The Ordinance states, “ [i]n any case where the message or content of the proposed Sign affected the denial of the permit , the County shal

l bear the cost of ini

tiating the case with the C

ircuit Court and shal

l also bear the burde

n of justifying t

he denial.” Id. (emphasis added). Ordinance 99-51 con

tains a general seve

rance provision stat

ing, “[i]f any section, phrase,

sentence, or port

ion of this Ordinance

or the Code is for a

ny reason held invalid or

unconstitutional . . . such portion shall be deemed a separate, distinc

t, and independent pr

ovision, and such holding shall not affect the validity of the r

emaining portions

thereof.” Ordi

nance 99-51 Recita

ls, ¶ 7. Ordinance 99-51 re

gulates different types of signs diff erently, incl

uding the following sign categories: (1) billboards; (2) on-premise signs; and (3) “special9

use signs,” which in clude “political message sig ns.” 1. BILLBOARDS Part 7.01 regulate s billboards. Billboa rds are limite

d to thirty-five

feet in height, and can be a

s large as 378 square

feet – or 560 square

feet if located a

long the interstate. See LDC § 7.01.03(A)-(B). Billboards are defined as signs “over thirty-two (32) square feet in size that [are] used for off-premise outdoor advertising and display,” and they also include on-prem ise signs that exceed

300 square feet. LDC § 12.01.00 (emphasis added). The Ordinance defines “advertising m

essage” as including not only comm ercial messa

ges, but also “political copy intended to directly or indirectly promote a candidate or issue.” LDC § 12.01.00. Billboards are subj ect to greater re strictions than on-pr emise signs wit

h regard to the number of bil lboards and their l ocation. Compare LDC § 7.01.01(A) (restricting new

billboards to designate

d locations, and stat

ing that no increase i

n the total number

of billboards shall be

permitted “

unless fully com

pliant with this Code”) with LDC § 7.02.01(A) (limiting on-premise ground signs to four per location, but placing no limits on the number of building signs such as marquee and canopy signs). Section 7.01.01(C) concerns severability of the billboard provisions. It10

states, “[i] f any of the prov isions of this Code, in

cluding [provisions] pertaining to permitting new

Billboards is found unconstitutional . . . all provisions pertai ning to allowing and perm

itting new Billboard

s shall be deeme

d voided in totality

and no new Billboards sh all be allowed.” 2. ON-PREMISE SIGNS Part 7.02 regulate s on-premise si gns. On-prem

ise signs are genera

lly limited to 150 square fe et. See LDC § 7.02.01(B ). Those within 50 0 feet of the interstate are allowed up to 300 square feet of advertising spa ce. See LDC § 7.02.02(B). On

-premise signs include advertisem ents for a business,

person, or service located on t

he sign’s prem

ises. Off-pre

mise signs, by

contrast, contain similar adver

tisements for a

product or business tha

t is not located or fur

nished on the property where the sig n is erected. See LDC § 12.01.00.

3. POLITICAL MESSAGE SIGNS “Political m

essage signs” are r

egulated under a thir

d category of si

gns called “special use signs.” LDC § 7.03.00. A political message sign is defined as

“ [a]ny Sign containing a non-commercial opi nion or endorsement

message and not containing a commercial message.” LDC § 12.01.00 (emphasis added). Under this definition, the s eparate require ments for “

political messa

ge signs” appear to govern all non -commercia l signs . Polit ical mess age sig ns are l imited b y §11

7.03.01(L) to bet

ween six and thirty

-two square feet . Commer cial signs and billboards, on th e other hand, can be as l arge as 560 square feet

. See LDC §§ 7.01.03(A), 7.05.01(A).

III. JURISDICTION AND STANDING Both appellees have standing to challenge O rdinance 99-51. In

order to have standing, a pla

intiff must prov

e that (1) it has susta

ined an injury “

of a legally protected interest;” (2) a “cau sal connection [exis

ts] between the injury and the conduct complain

ed of;” and (3) the i

njury is capable of being redresse d by the

court. See Lujan v. Defe

nders of Wildlife , 504 U.S. 555, 560-61 (1992) (citati ons omitted); Granite State Outdoor Adver. , 351 F.3d 1112, 111 6 (11th Cir. 2003). Moreover, the pla

intiff’s injury

must be “concrete and partic ularized, and act

ual or imminent, not conjectural or hypothetical.” Lujan , 504 U.S. at 560 (citations omitted). Pursuant to various provisions of St. John’s County’s sign Ordinance, both Café Erotica

and We Dare to

Bare have been or

dered to remove

certain signs, some of which di splay political m essages. In additio

n, both parties ret

ain substantial interest

s in the outcome of

this litigation, as bot

h parties stand to gain by a favorable ruling. As such, both parties may challenge Ordinance 99-51 as applied. We also have ju

risdiction to consider

whether Ordinance 99-51 is facially10 A party is en titled to summary

judgment “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue a

s to any mate

rial fact and tha

t the moving party

is entitled to a judg

ment as a 12 invalid. When a s

tatute is challenged

as facially in

valid, a court m

ay entertain such a challenge wh

ere every app

lication of the chal

lenged provision m

ay create an impermissible risk of sup pression of ideas. See Freedman v. Mar yland , 380 U.S. 51, 56-7 ( 1965). As determ ined below, with r

espect to the decisio

n of whether to issue or deny a sign permit, Ordinance 99-51 places “unbridled discretion” in the ha

nds of the County A

dministrator.Thus, Ordinance 99-51 creates “a r

ealistic danger tha

t the statute itself will significantly compromis e recognized First Amendment protections,” and we ma y therefore entertain a facial challenge. See City Council of L os Angeles v. Tax

payers for Vincent

, 466 U.S. 789, 801 (1984); City of Lakewood v. Plain Dealer P ubl’g Co. , 486 U.S. 750, 757 (1988). Further,

the fact that Caf

é Erotica and W

e Dare to Bare p

rimarily engage in commercial advertising does not prevent us from considering their facial challenges. See Metromedia, Inc . v. City of San Di

ego , 453 U.S. 490, 505 n.11 (1981). IV. STANDARD OF REVIEW We review orders granting summary judgment de novo. See Joel v. City of Orlando , 232 F.3d 1353, 1357 (11th Cir. 2000). 10 We also review decisions ofmatter of law.” F ED . R. C IV . P. 56(c); see also Focus on th e Family v. Pinell

as Suncoast Transit Auth. , 344 F.3d 1263, 127 1 (11th Cir. 2003). T he burden rests o

n the moving party

to demonstrate the absence of a genuine issue of material fact, and we will construe the r ecord and all inferences from it in the light most favorable to the non-moving party. See id. at 1271-72.

11 The County a

rgues that a pe

rmit is only re

quired for constr

uction of a new sig

n and is not needed to change the message of an existing sign, thereby circumventing prior restraint concerns. However, the prevention of new sign construction goes hand-in-hand w ith the resulting suppression of speech. Not all speakers have access to existing billboards, and other forms of communicating can be “insufficient, inappropriate and prohibitively e xpensive.” See Metromedia , 453 U.S. at 525. Thus, some speakers, like Café Erotica, could effectively be silenced by the County’s permitting require ments. See, e.g., Eu v. S

an Francisco County Democratic Cent. Comm ., 489 U.S. 214, 226 n.16 (1989) (“[s]uch a [potentially] blanket prohibition cannot

coexist with the cons

titutional protect

ion of political spe

ech”); see also City of Erie v. Pap’s A.M. , 529 U.S. 277, 293 (2000) (noting that “there may be cases in which banning 13 lower courts address ing the constitu tionality of ordinan ces de novo. Id

.

V. PRIOR RESTRAINT A NALYSIS We analyze

certain challenge

d portions of Ordinance 99-51 under prior restraint analy

sis and others under content-based analy sis. We start w

ith prior restraint analy

sis because our holding

in this section highlights the potential for content-based decisionmaking under Ordinance 99-51. When analyzing a facial challenge, we must analyze the st atute as written. See Redner v. D ean , 29 F.3d 1495, 1501 (11th Cir. 1994). A prior restraint

on speech exists “

when the governm

ent can deny access to a forum for expression before the expression occurs.” United States v. Frandsen , 212 F.3d 1231, 1236-37 ( 11th Cir. 2000). O rdinance 99-51 requi

res a permit p

rior to erecting any

new billboard, 11 thereby making it a restraint on speech in advancethe means of expression so interferes with the message that it essentially bans the messag e”). 14 of its occurrence. See Ward v. Rock Against Racism , 491 U.S. 781, 795 n.5 (1989) (for prior restraint analysis, “[t]he relevant question is whether the challenged regulation authorizes suppression of sp eech in advance of its expression”). Although “prior

restraints are not

unconstitutional per se [,] any sy stem of prior restraint . . . bear[s] a heavy presumpti on against its con stitutional val idity.” Southeastern Promoti

ons, Ltd. v. Conra

d , 420 U.S . 546, 5 58 (197 5). Acco rdingl y, we must consider whether Ordi nance 99-51 is an impermissi ble prior restraint. Prior restraints must (1) ensure that permitting

decisions are m

ade within a specified time

period, see FW/PBS, Inc. v. City of D allas , 493 U.S. 215, 226-27 (1990) (plurality

opinion) (citing Freedman , 380 U.S. at 59) ; and must (2) av oid “unbridled discretio n” in the hands of a g overnment official. See id . at 225-26 (quotingLakewood

, 486 U.S. at 757); see also Lady J. Li ngerie, Inc. v. City of Jacksonville , 176 F.3d 1358, 1361 ( 11th Cir. 1999) (“ licensing schem

es commonly contain two defects: discretion and the opportunity for delay”). The Café district court found that Ord

inance 99-51 lacked both of these require ments. Afte

r careful analysis, we find that the first requirement above is satisfied; however, as discussed below, we also find that Ordinance 99-51 unconstitutionally grants unbridled discretion in the hands

of just one governm

ent official.15

A. FW/PBS REQUIREMENT #1: SUFFICIENT TIME LIMITS FOR ISSUING PERMITTING DECISIONS “A scheme that fails to set reasonable time lim its on the decisionmaker creates the risk of

indefinitely supp

ressing permiss

ible speech,” and t

herefore will not be tolerated. FW/PBS , 493 U.S. at 227 (plurali ty opinion) . To satisfy this requirement,

an ordinance should co

ntain two procedura

l safeguards: (1) l

icensing officials must be required to make prompt decisions; and (2) prompt j udicial review must be available to corre ct erroneous denial s. Lady J. Lingerie , 176 F.3d at 1362- 63 (citation omit

ted). Ordinance

99-51 satisfies the f

irst FW/PBS requirement because it contains both procedural safeguards set forth above. With respect to th

e first safeguard

– that licensing offi

cials be required t

o make prom

pt decisions – Ordina

nce 99-51 states, Applications for Si

gn Permits shal

l be approved or denie

d, by the County Admi

nistrator, within fourteen (14) day s of submittal of

a fully completed appli

cation. If m

ore informati

on is required from

the applicant in order to complete review of the application, the fourteen (14) day period shall ru n from receipt of that addit ional information. If the applicant ce

rtifies in writing that the application i s complete, th e fourteen (14) day period shall run from the [certification] date. LDC § 7.00.01(C). The Café distric

t court was concer

ned that, under thes e requiremen ts, the County Admi

nistrator could unduly

delay the perm

itting process. However,16

Ordinance 01-34 amends th is section. See Coalition for the A bolition of Marijuana Prohibition , 219 F.3d at 1310 (noting that a superseding ordinance moots a case to the extent that it removes challenged features of the prior law). The Ordinance a

s amended now gi

ves the County Ad

ministrator thi

rty days to deny or approve a

fully compl

eted sign application and twenty day s to notify the applicant of any

deficiencies. S ignificantly, if the application is not approved or denied within the t hirty-day period, the sign p ermit is deemed denied. See Ordinance 01-34 § 7. 00.01(C). Thus, the County Adm

inistrator cannot de

lay the permitting process indefinitely , and an applicant sh

ould receive a fina

l denial well within ninety days of its in itial submission. See Redner , 29 F.3d at 1500 (hol ding that a forty-five day restraint is reasonable, and expressing agreement w ith other federal courts tha

t have found time

periods as long as nine

ty days to be reasonable); but see Fly Fish, Inc. v. City of Cocoa Beach , 337 F.3d 1301, 1314 (11th Cir. 2003) (ordinance setting forth no real time limits deemed unconstitutional). Ordinance 99-51 also satisfies the second safeguard – that “prompt judicial review” be available. With respect to li censing scheme s, this requirem ent means that the ordinance m

ust provide for prom

pt judicial reviewof a permit de nial, rather than prom

pt judicial resolution

. See Boss Capital, I nc. v. City of17

Casselberry , 187 F.3d 1251, 1256 ( 11th Cir. 1999). O rdinance 99-51 satisf

ies this requirement be

cause LDC § 7.00. 08 provides that an adve rse decision ma

y be appealed to the Circu it Court within thi rty days. See id. (finding “prompt judicial review” requirement met where ordinance specified that licensing decisions “ may be immediately reviewed as a matter of right by the Circui t Court”).

B. FW/PBS REQUIREMENT #2: NO UNBRIDLED DISCRETION Although Ordinance

99-51 satisfies the f

irst FW/PBS requirement, we find that Ordinance 99- 51 is an unconstitutional prior restraint be

cause the discreti

on it grants to the Coun ty Administrator extends be yond permissible bounda ries. See Shuttlesworth v. Cit

y of Birmingham , 394 U.S. 147, 150-51 (1969) (“a law subjecting the exercise of First Amendment freedom s to the prior restraint of a license, without na

rrow, objectiv

e, and definite sta

ndards to guide the lic ensing authority, is unc

onstitutional”); Saia v. New York , 334 U.S. 558 (1948) (ordinance found facially invalid because discr etion of decision-m

aker was unlim

ited); Fly Fish, Inc. , 337 F.3d at 1313 (or dinance struck down a

s unconstitutional beca

use it “exceed[ed] the limits of pe rmissible ‘m

inisterial discret

ion’”); Lady J. Lingerie , 176 F.3d at 1362 (“

virtually any

amount of discr

etion beyond the m

erely ministerial is suspect” and therefore “[s]tandards must be precise and objective ”).18

The County argu

es that its Ordinance does not give the Count y Administrator

discretion to rej ect a sign based on its content because the sign applicant need not disc

lose the sign’s m

essage. Even if w

e were to accept

this argument, however, the Ordinance still fails to address our primary concern – that there be “reasonably specif ic and objective”

grounds for denyi

ng a permit application that are

“narrowly

drawn, reasonable, and definite” so as to sufficiently reduce the potential for content-based d ecisionmaking. Thomas v. Chicago Park Dist. , 534 U.S. 316, 324 (2002); Redner , 29 F.3d at 1501 (ci tations omitted) (wit hout adeq uate stand ards to gu ide the lic ensing au thority, “[w]e cannot depend on the indi viduals responsible fo

r enforcing the Or

dinance to do so in a manner that cures it of co nstitutional in firmities”). Ordinance 99-51 la

cks specific and def

inite statutory c

hecks on the County Administrator ’s discretion, t hereby imp ermissibly

creating the potenti

al for content-based discrimination. Ordinance 99-51 contains the same constitutional flaws as the ordina

nce struck down in City of Lakewood v. Plain Dealer Publ’g Co. , 486 U.S. 750 (19 88). In Lakewood , the Supreme Court

noted that “the f

ace of the ordinance itself

contains no explicit li

mits on the m

ayor’s discr

etion. Indeed, nothing in the law as w

ritten requires the

mayor to do m

ore than make t

he statement ‘it is not in the public interest’ when denying a permit application.” Id.12 Additionally, “permit applications for on-premise signs shall be in accordance w ith Part 7.02.00,” which sets forth requirements for on-premise signs. LDC §§ 7.00.01, 7.02.01. 19 at 769. Like the Lakewood ordinance, Ordin ance 99-51 contains no

explicit limits on the County Administrator’s discretion. Rather, Ordinance 99-51 simply states that permits sha

ll be reviewed by

the County Adm

inistrator and issued

“in accordance with t

he [Standard Buildi

ng Code].” LD C § 7.00.01. 12 A review of the Standard Buildin

g Code reveals that Ordinance 99-51 doe s not provide specific grounds unde

r which the Adm

inistrator may

deny a billboard permit application. Any

such grant of unrestr

ained discretion to a

n official responsible for regulating First Amendment activities is facial ly unconstitution al. See Atlanta Journal and Constitution v . City of Atlanta D

ept. of Aviation , 322 F.3d 1298, 1311 (11th Cir. 2003) (e

n banc). Thus, a

s the Supreme Court has noted, the Constitution requires that St. Johns County “establish neutral criteria to insure that the licensing decisio

n is not based on the cont ent or viewpoint of t

he speech being considered.” Lakewood

, 486 U.S

. at 760. Such crite ria should be expressly included within the C ounty’s sign Or dinance, and should se

t forth specific content-neutral g rounds under which a sign permit may be denied. See, e.g., Thomas , 534 U.S. at 322

(upholding an ordinance listing thirteen spec

ific grounds under which a perm

it application m

ay be denied, no

ne of which “ha

s anything to13 In Thomas , the Supreme Court upheld a permitting scheme whereby “the object of the

permit syste

m ( as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of . . . facilities, to prevent uses that are dangerous, unlawful, or impermissible . . . and to assure financial accountability for damage ca used by the [applicant].” Thomas , 534 U.S. at 322 (emphasis added). The ordinance set forth eleven numbered grounds under which a permit could be denied, including: “the application for permit contains a material falsehood or misrepresentation,” “the applicant has not tendered the required application fee,” “the applicant . . . has on prior occasions damaged . . . property [for which a permit was granted],” and

“the use or activ

ity intended

by the applic

ant would present

an unreasonable danger to the health or safety of the applicant or . . . the public.” Id. at 319 n.1. In the instant case, the County should adopt similar content-neutral bases for which the County Administrator may deny a permit, so that it is clear that the objec t of the permitting scheme is not to exclude communication of a particular type of content. See also Atlanta Journal and Constitution , 322 F.3d at 1311 (“The official charged with administering the Plan should have clear standa rds by which to accept or reject a [permit] request . . . . Perhaps a first-come, first-served sy stem, a lottery sy stem, or a sy

stem in which each

[applicant] is limited t

o a percentag

e of available [mediums of

expressio

n] would be

appropri ate vehic les for lim

iting the official ’s discre

tion. We leave the intricacies of the safeguards to the Department . . . .”). 20 do with what a speaker might say”). 13

VI. APPLICABLE FIRST AMENDMENT FRAMEWORK FOR CONTENT BASED ANALYSIS We now consider whether § 7.03.01, which limits “

political messa

ge signs” to thirty-two sq

uare feet, im

permissibly

favors comm

ercial messa

ges over noncommerc ial ones. We m

ust first determ

ine the appropriate

analytical fr

amework to apply when consi

dering the constitution

ality of regula

tions restricting noncommercial speech placed on bil lboards. The regu lation of bill boards is cont rolled by Metromedia , as “the law of billboards” is “a law unto itself.” Metromedia , 453 U.S. at 501 ; see Ackerly14 With respect to restrictions on purely commercial speech, the Metromedia plurality applied a four-part test: “(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise pr otected commercial spee

ch is valid only

if it (2) seeks to imp

lement a substantia

l governmental i

nterest, (3) directly advances that interest, and (4) reac hes no further than necessary to accomplish the given objective.” Metromedia , 453 U.S. a t 507 (quot ing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm ’n of New York , 447 U.S. 557, 563-66 (1980)).

21 Communications v. Krochalis , 108 F.3d 1095, 1099 (9th Cir. 1997) (“ Metromedia continues to con trol the regulatio n of billboards”). Metromedia instructs courts to employ one of

two distinct analy

tical frame

works, depending on w

hether the restriction is of co mmercial or noncommercial speech. See Metromedia , 453 U.S. at 504-05. 14 Ordinance 99-51 dis tinguishes between commercia l and

noncommer

cial speech, ther

eby taking this ca

se out of the realm

of regulations of purely commercial speech. With respect to r

estrictions placed o

n noncommer

cial speech, the County argues that our inquiry should be confined to whether its Ordinance discriminates based on viewpoint. In striking down the portion of San Diego’s sign ordinance that favored commercial over noncomm ercial speech, however, the Metromedia plurality explic

itly rejecte

d a strictly vie

wpoint-based analy

sis, holding that the First Amendment not only prevents the government from distinguishing between different viewpoi

nts but also from

distinguishing betwee

n broad categories o

r15 In Consolidat ed Edison C

o. v. Publi

c Service Comm'n , 447 U.S. 530 (1980), the Supreme Court declared, “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a

general matte

r, ‘the First Ame

ndment means that g

overnment has no p

ower to restrict expression because of its message, its ideas, its subject matter, or its content.’” Consol. Edison , 447 U.S. at 537. Based on this language, the County’s reliance on Messer v. City of Douglasville, Ga. , 975 F.2d 1505 (11th Cir. 1992), is misplaced. In that case, the sole issue was “whether a regulation allowing onsite noncommercial signs while denying offsite noncommercial signs would be constitutionally permissible.” Messer , 975 F.2d at 1509 (emphasis added). Because the type of sign at issue w as the same wheth

er onsite or offs

ite (noncommerc

ial vs. noncommercial) , in considering whether the ordi

nance was conte

nt-based, the co

urt only considered whet

her viewpoint disc

rimination existed. T

his case, howeve

r, deals with discrimination bet

ween commercia

l and noncommerci

al messages, ma

king viewpoint an

alysis only part of the content-based inquiry.

16 The County argues that the proper test is that applied in United States v. O’Brien , 391 U.S. 367 (1968). However, this framework cannot be applied to Ordinance 99-51. O’Brien involved a law that “on its face deals with conduct having no conne

ction with speech

,” while Metromedia

dealt with “the law of billboards.” Compare O’Brien , 391 U.S. at 375 (em phasis added) with Metromedia , 453 U.S. at 501. As this Court recently noted, O’Brien has generally been applied only when “evaluat[ing] regulations of expressive conduct – conduc t that contains both ‘speech’ and ‘nonspeech’ elements,” such as nude dancing. See Lady J. Linger ie , 176 F.3d at 1364 (cit ing O’Brien , 391 U.S. at 376).

17 The district court in St. Johns County v. Café Erotica of Florida, Inc. first applied time, place, and manner analysis, but then found that because Ordinanc e 99-51 singled out political speech for different treatment, the County would have to justify this disparate treatment under a strict scrutiny standard. We believe this is the correct analy tical framework. 22 types of speech. See Metromedia , 453 U.S. at 519

. 15 Because the Metromedia decision controls “the law of billboards,” we will apply the analytical fram ework employed by the Metromedia plural ity. 16 Consistent with Metromedia , we first ask w hether Ordinance

99-51 is a valid, content-neut

ral time, pla

ce, and manne

r regulation. Thi s is the test employed by

the Café district court. 17 In order to be constitutional, a time, place,18 In Rock Against Racis m , the regulated concert venue was open to all performers, was regulated to control its noise level, and was deemed a public forum, thereby requiring analysis as a time, place, and manner regulation. Rock Against Racis m , 491 U.S. at 790. 23 and manner re

gulation may

not be based upon the con tent of the regulate

d speech, must be narrow

ly tailored to se

rve a significant gov

ernmental inte

rest, and must leave open ample alternati ve channels for communicatio n of the information. See Rock Against Raci

sm , 491 U.S. at 791

. 18 If the regulation i s deemed contentbased, however, our inquiry becomes more exacting, a s we then apply strict scrutiny. See Consol. Edison , 447 U.S. at 536 ; One World One Family Now v. City of Miami Beach , 175 F.3 d 1282 , 1286 ( 11th Ci r. 1999 ). Under strict scruti ny, the government must show that the regulation is narrowly tailored to serve a compelling state inter est. One World One F amily Now , 175 F.3d at 1286. Thus, we must now determine whether Ord inance 99-51 is con tent-based. Metromedia

held that discrim

inating among polit ical mess ages is not alw ays required for an ordin ance to be deemed content- based. See Metromedia , 453 U.S. at 519. Rather, discriminating in favor of commerc ial messages over political ones, without regard to the actual messages conveyed, is also content-based discrimination. See id . at 513. Our inquiry therefore becomes whether Ordinance 99-51 in fact favors commercial messages over political ones.19 But note that under Ordinance 99-51, “political message signs” can be no larg er than thirty-two square feet, while billboards can be as large as 560 square feet. See LDC §§ 7.03.01(L), 7.01.03(A). 24 VII. DISTINCTION FAVORING COMMERCIAL OVER NONCOMMERCIAL SPEECH IS CONTENT-BASED St. Johns County argues that the Ordinance does not favor commercial speech over politica

l messages bec ause under its readi ng of LDC § 12.01. 00 (defining “bill

boards”), any

speech, including pol

itical message s, can be placed on billboards. 19 Under the County’s argument, the Ordinance sim ply provides an additional, super fluous provisio n regarding “political message signs.” While the County’s interpret ation is entitled to deference, Southlake Prop. Assocs. v. City

of Morrow , 112 F.3d 1114, 1119 ( 11th Cir. 1997), w e need only defer to the County ’s interpretati on when that interpr

etation is “base

d on a permissible construction of the ordinance.” Id. However, the County’s interpretation ef

fectively rew

rites the Ordinance by comple tely disregard

ing certain Ordinance provisions and is fla wed for several a

dditional reasons. First, the County

disregards the plain

fact that the Ord

inance limits “political m

essage signs” to thirt

y-two square f

eet. Significant

ly, Ordinanc e 99-51 defin es “pol itica l messa ge sig ns” as “[ a ] ny Sign containing a non-commercial opinion or endor sement message and not contai ning a commercial message,”20 The Café district court also hesitated to uphold an ordinance containing such internal

inconsistencies,

stating that “the

Code . . . creates

an internal conf

usion in that if the Co

unty Administrator determines that a sign contains ‘political message’ speech, its size must be limited to thirty-two

square feet. On

the other hand, [un

der the County ’s interpretatio n] off-premise bil lbo ards and on- prem ise sign s can app aren tly also include political speech, and could be as large as 560 square feet . . . . The County offer s no explanation for this confusion.” Café Erotica of Florida, Inc. v. St. Johns County , No. 98-005597 CV-J-21-HTS, at 18 (M.D. Fla. Dec. 4, 2002) (order granting summary judgment). 25 which by its ter

ms encapsulate s all signs carry ing a non-comm

ercial messa

ge, and then restricts such signs to sizes far be low that allowed for bi llboards. See In re Gosman , 282 B.R. 45, 49 (Bankr. S.D.Fla. 2002) (“‘A ny’ does not refer to certain things and not others. ‘Any’ m eans ‘every ’ and ‘all.’ It is unlimited. ”); see also LDC § 12.00.00. Further, the def inition of “billboa

rd” makes no m

ention of “noncommerc ial” signs. LDC § 12.00.00. Thus, the County’s in

terpretation disre

gards the plain language of the Ordinance. 20 If the County tr uly intended politi

cal and commercial messages to be on equal footing, the County w ould not have regulated the size of “pol

itical message

signs” separately. The separate size limitation cannot be ignored as s

uperfluous. This conclusion is supported by multiple canons of interpret ation. See, e.g., Co nnecticut Nat’l Ban

k v. Germain , 503 U.S. 249, 253 (1992) (“courts should disfavor interpretations of statutes that render language superfluous”

); United States v. Louw sma , 970 F.2d 797, 799 (11th Cir. 1992) (“a precisely drawn statute dealing with a specific subject controls over a statute covering a more generalized spectrum”).26

Second, the County’s interpretation, which would allow purely political messages to be displayed on billboards, is inc onsistent with LDC § 7 .03.01(L). Section 7.03.01(L

) states in its entir

ety, “poli tical message

signs [are] lim

ited to thirty-two (32) square feet , except those in resid ential districts which

shall not exceed six (6) square feet .” (emphasis added). If the County actually intended for billboards to carry

political messa

ges, the County w

ould have presuma

bly included a second exc eption stating, “ and except those on bill

boards which shall

not ex ceed 3 78 sq uare feet.” This i nfere nce is supp orted by the maxim expressio unius est exclusio alte

rius , “expressing one item of an associated group or series excludes another left unmentioned.” See Chevron U.S.A. Inc. v. E chazabal , 536 U.S. 73, 80 (2002) (quoting United States v. V onn , 535 U.S. 55, 65 (2002)). Third, the County’s interpretation cannot be reconciled with LDC § 7.01.03(G), w

hich states, “ [a]ll billboards . . . within the County shall . . . have displayed on them [] the [o]wner’s nam e information displayed in such a manner as to provide clear readable visibility from the abutti

ng road right-of-w

ay during daylight hours.”

The minim

um space allow

able between the bi

llboard and the right-of-way

is generally f

ifteen feet, but i

t can be up to six hundre

d feet along certain highways. A review of Café Erotica’ s billboards reveals that this display requirement m

eans that the corpor

ation’s compl

ete legal name

must promin

ently27

appear on the billb oard facing. See LDC §§ 7.01.04(A), 7.01.04(E)6. Such a requirement makes sense for commercial messages , but not for politi cal ones. Under the County ’s interpretati on of Ordinance 99- 51, a sign display ing the message “Vote for John Smith” would also have to include the words “ Café Erotica / We D are to Bare / Adu lt Toys / Grea

t Food / Exit 94, Inc .” in similar bold print. Such an inte

rpretation is inconsi stent with the Supre me Court’s d

irection that “an author ’s decision to rem ain anonymou

s . . . is an aspec

t of the freedom

of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n , 514 U.S. 334, 341-

42 (1995). Howeve

r, we should constr

ue ambiguities in

a manner that avoids cons titutional ques tions. See Southlake Prop. Assocs. , 112 F.3d at 1119. Finally, the County’s interp retation of Ordina

nce 99-51 gives the Administrator unbridled power to discriminate between political messa ges as he sees fit. On the one hand, the County believes that political messages may in fact be displayed on billboards. On the other hand, the County also concedes that “political m

essage signs” carr

y greater siz

e restrictions and a

re defined as “

[a]ny Sign containing a non-com mercial opinion or endorsement message and not containing a com

mercial m

essage.” LDC § 12.01.00 (emp hasis added). W

ith these two provisions i

n place, the County

has created a hand

y tool for21 We note tha t Billboar ds are de fined as s igns “ove r thirty -two (32) square fe et in size that [are] used for

off-premise outd

oor advertising

and display,” and they a

lso include on-pre

mise signs that exceed

300 square feet

. LDC § 12.01.00.

An “Advertising

Message” is de

fined to include not only

commercial messa

ges, but also “po

litical copy

intended to direc

tly or indire

ctly promote a candidate or issue.” LDC § 12.01.00. 28 discriminating b ased on content. Pr esumably,

if the County Ad

ministrator disagrees with the applicant’s likel y message,

then the County ca

n utilize its “political message sign” to ol and thereby restrict t he sign to thirty-two s quare feet. Such a restriction wou ld be entirely permissible u nder the Ordinance as wri tten. See LDC § 12.01.00. If, on the other hand, the County Administrator reviews an application from an organization he agrees with ideologically, then the County can invoke its seemingly inclusive definition of “billboards” and allow that particular polit ical mess age to b e displ ayed much mo re promin ently. 21 In this way, t he County can eff

ectively discr

iminate betwe

en political me ssages based solely upon political conten t, which the County canno t do absent compelling reasons. See Fly Fish , 337 F.3d at 1306 (quo ting Rock Against Rac

ism , 491 U.S. at 791) (a law that “suppre sses pr otecte d speec h becau se of di sagree ment with the mess age it c onveys . . . violates the

First Amendm

ent, absent som

e compelling sta

te interest in its enforcement”). The County conte

nds that the Admi

nistrator is never g

iven the opportunity to determine w

hether a sign contain

s political speech be

cause the perm

it29

application does not re

quire informa

tion regarding the m

essage. Howeve

r, the County needs infor

mation regardi

ng, at a minim

um, the typ e of proposed me ssage in order to determ

ine the appropriate

sign category,

which in turn deter

mines the sign’s allowable

size and location. Further, while it is true that the pe rmit application does not re

quire informa

tion regarding the pr

oposed message,

the County can often infer th e content based on t he nature of the appl icant’s business. In this case, for example, there is a long history of conflict between Café Er otica and St. Johns County . Thus, any permit application submitted by Café Er otica could be denied sim

ply because of t

he perceived danger

of the sign’s possibl

e political messa

ge or because of the

undesirability of

the applicant’s bu

siness – adult entertainment. Without discretion-checking guidelines, there is a distinct possibility that the

County could decl

ine to issue Café E

rotica a perm

it based on

content. See, e.g., La

kewood , 486 U.S. at 759 -60 (a licensing sche me where “

the licensor does not nec essarily view the text of the word

s about to be spoken, but

can measure t

heir probable conte

nt or viewpoint by

speech already

uttered . . . is sufficiently threateni ng to invite judici al concern.”) (internal citations omitted). Having determ

ined that Ordinance

99-51 does in fact dist

inguish based on content – both by allowing commercial messages to be display ed more prominently

than political m

essages and by giv

ing the County Adm

inistrator the22 The district court also found that the provision for bringing appeals underscores the

very real possibility of content-based de cision-making because it states that in any case “where the message or c

ontent of the proposed sign affec ted the denial of t

he permit,” the Cou

nty must bear the burden of justifying the denial. The very enactment of such a provision appears to admit the possibility of content-base d decisionmaking

, which is the rea

l concern of our

First Amendment jurisprudence. See Thornhill v. Alabama , 310 U.S. 88, 97 (1940).

23 The San Diego ordinance gen erally prohibi ted the fol lowing sign s: (1) any sign identifying a use, facility or se rvice which is not located on the premises; (2) any sign identify ing a product which is not produced, sold or manufactured on the premises; and (3) any sign which advertises a pro

duct, service or

activity, e

vent, person, insti

tution or business wh

ich occurs or is conducted, sold, manufactured, produced or offered elsewhere than on the pre mises where such sign is located. Metromedia , 453 U.S. at 494 n.1.

24 Onsite signs are defined under the ordinance as those “designating the na me of the owner or occupant of the premises upon which such signs are placed, or identify ing such premises; or signs advertising goods manufactured or produced or services r endered on the premises upon which such signs are placed.” Metromedia , 453 U.S. at 494.

25 The specific ca

tegories exempte

d from the prohibiti

on included: gove

rnment signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for adverti

sing purposes; c

ommemorative histo

rical plaques; re

ligious symb

ols; signs within 30 unchecked ability

to discriminate

between political messages, w e now turn to Metromedia

in order to determ

ine whether such re strictions are neve rtheless constitutional. 22 VIII. METROMEDIA APPLIED In Metromedia , the United States Sup reme Court str uck down Sa n Diego’s ordinance general

ly banning the ere

ction of off-prem

ise outdoor advertisi

ng displays, 23 including billboards. The ordinance prov ided two exceptions t

o the general prohibition: onsite signs 24 and signs falling within one of twelve specified categories. 25 Thus, onsite com mercial adve

rtisements we

re permitted,

but offsiteshopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs

depicting time, temperature, and news; approved temporary , off-premises, subdivision directional signs; and temporary political campaign signs. See Metromedia, 453 U.S. at 494-95. 31 commerc ial advertising and pol

itical message s on billboards were generally forbidden. The a

ctual restriction o

n outdoor signs was def

ined by refere

nce to the structural characteri stics of the sign, b ut also by reference to the s ign’s content. Specifically

, the regulation only

applied to a “pe

rmanent struc

ture . . . used f

or the display of [] a commerc

ial or other advertisement to the public.” Id. at 503. Companies engaged in the business of outdoor advertising challenged the San Diego ordinance as faci ally invalid. The Metromedia

Court made tw

o distinct rulings. F irst, with respec t to the limits placed on purely com mercial spee

ch, the Court rule

d that off-site commercial billboards may be prohibited while on-site commercial billboards are

not. Id. at 512 (applying f our-part Central Hudson test for restrict ions on commercial speech). Second, the Metromedia Court struck down the

portion of the San Diego ordinan ce that banned bill boards displaying p olitical messages. The Court held: [O]ur recent commercial speec h cases have consistently accorded noncommercial speech a greater degree of protection than comm ercial speech. San Die

go effectively

inverts this judgm

ent, by affor

ding a greater degree of protection to commercial than to noncomm ercial speech. . . . The use of onsite billboards to carry comm ercial messages32

related to the com

mercial use of

the premises is

freely perm

itted, but the use of otherwise identical billboards to carry noncommercial messages is gene

rally prohibite

d. The city doe s not explain how or why noncommercial billboards located in places where com mercial billboards are perm

itted would be m

ore threatening to sa

fe driving or would detract m

ore from the be

auty of the city

. Insofar as the c

ity tolerates billboard

s at all, it cannot c

hoose to limit the

ir content to commercial messages. Metromedia , 453 U.S. at 513. The same im

permissible pr

eferences that th

e Supreme Cou

rt found unconstitutional in Metromedia are also present here, but in a different form. In Metromedia , the provision struc k down allowed all on

site comme

rcial billboards, but almost com

pletely banned si

milar noncom

mercial signs.The instant case involves a similar unconstitutional preference, but in the form of greater size restrictions for noncommercial messages vis-á-vis commerc ial ones. While Ordinance 99-51 does not involve a complete ban on political speec

h, neither did the Metromedia ordinance, as it pr ovided several exem

ptions from the pe

rmitting requirements for certain noncom mercial spee

ch. Just as in Metromedia , “the [County] m

ay not conclude th

at the comm

unication of com

mercial infor

mation concerning goods and se

rvices connected w

ith a particular sit

e is of greater va

lue than the communication of noncommercial m essages.” Id. at 513. By lim iting the size of political m

essages to roughly

1/17 that of comm

ercial ones, that

is26 The Supreme Court in Metromedia ruled that there could not be “substantial doubt that

the twin goals [of] traffic safety and the appearance of the city [] are substantial governmental goals.” Metromedia , 453 U.S. at 507-08. Because we fi

nd that Ordinance

99-51 is not narrow

ly tailored, we need not determine whether the interests of safety a nd aesthetics are “compelling.” 33 precisely what the County has done. Because of its preference for com mercial speech, the Metromedia

Court struck down the San Diego ordinance as unconstitutio nal on its face. See Metromedia , 453 U.S. at 521 . We must do the same, unl ess the County c an sati sfy the re quiremen ts of st rict sc rutiny. Because Ordinance 99-51 discrimi nates against political speech in favor of

commerc ial speech, the Cou

nty must provi

de compelling re

asons for this dispara

te treatment that are narrowly tailo red to further those i nterests. See Metromedia , 453 U.S. at 516-17 ; see also Consol. Edi son , 447 U.S. at 540. The County’s stated goals are to protect

the safety and a

esthetic interests of its citizens. T he County argues that its Ord

inance is of no great

er restraint on speech than is necessar y to protect those intere sts. The goals of sa fety and aesthe

tics are no doubt “substantial.” 26 However, while size limitations may be justified for all signs based on safety and aesthetics, the se interests cannot j ustify allowing billboards to be built up to 560 square feet while allowing a maximum of only thirty -two square feet for political message signs. The Ordinance contains no findings of fact suggesting that political speech distracts motorists more than commercial34

messages or that political signs are more aesthetically displeasing than comm ercial advertisements. In short, “safety” and “ aesthetics” are not truly furthered by an ordinance that allow

s one small, “

safe,” and visuall

y pleasant politic

al sign to be placed adjacent to a large, “unsafe,” and aesthetically displeasing com mercial billboard. We also find the County’s argument unpersuasive for the reasons stated in Metromedia , which declare d, “by all owing comm

ercial establishm

ents to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicativ e interests, e.g. , onsite comm ercial advertisin

g, are stronger than its competing interests in esthetics and traffic safety. It has nevertheless bann ed all noncommercial signs ex cept those specific ally excepted.” Id . at 520. Like the city of San Diego, St. Johns County has conceded that allowing a certai

n number of billbo ards outweighs its int erests in aesthetic s and safety; howeve

r, the County f

avors comm

ercial messa

ges over political one s by allowing comm

ercial messa

ges to be displaye

d more prom

inently. This a

mounts to an unconstitu tional preference for co mmercial speech over political speech. See id. at 513 n.18. The C ounty can achiev e its goals simply

by mandatin

g that all messages, whether politic al or commercial, be limited to the same size. See Consol. Edison , 447 U.S. at 542 n.11.35

Because we find t

hat Ordinance 99-5 1 makes unconstitutional contentbased distinctions, w

e need not consider w

hether alternative

channels are avai

lable for the regulated sp eech. See Consol. Edison , 447 U.S. at 541 n.10.

IX. SEVERANCE: THE DISTRICT COURT PROPERLY REFUSED TO SEVER THE POLITICAL MESSAGE PROVISIONS Ordinance 99-51 contains a severability provision. However, the Café district court rule

d that it could not sever

the unconstitutional pr

ovisions of Ordinance 99-51 and still be left with a workable statute. The district court noted the two competi ng pol icies a t stake , that “th e Court must make e very reasonable construction of the Ordinance to save it from unconstitutionality; at the same time, the Court will not re-write an ordinan ce [because this is ] a function that i s within the province of the County.” Café Erotica of Flo rida, Inc. v. St. Johns County , No. 98-005597 CV-J

-21-HTS, at 26 (

M.D. Fla. De

c. 4, 2002) (order

granting summary judgment). The district court also recognized tha

t Florida law requ

ires it to sever any pro

visions of the Ordina

nce that it finds uncon

stitutional, while allowing valid po rtions to stand, but only if problematic pr

ovisions “can be distinguished and clearly separated” from the remaind er. See Lysaght v. Cit y of New Smyrna Beach , 159 So.2d 869, 870 (Fla. 1964). We also find that s everance is inappr opriate. The inte

rests of federali sm27 Setting for th the tim e limits i n which St. Johns Co unty must appr ove or deny a sign

permit.

28 Describing the appeals process and time limits for challenging a permit denial.

29 Setting forth the requirements for “special use signs,” including limiting “political message signs

” to thirty-t

wo square feet g

enerally a nd six square feet i

n residential distr

icts. 36 and comity d

ictate conservatis

m to federal courts in imposing th eir interpretativ

e views on state statu tes. See National Adver. Co . v. Town of Niagara , 942 F.2d 145, 151 (2d Cir. 1991 ). We agree with the County t hat the provision separ

ately regulating “poli

tical message

signs” is easily s everable. How ever, severance

of just this o ne provis ion will no t address o ur concern s with the Ad ministrato r’s unfettered discre

tion. Therefore , we affirm the district courts’ decision in striking down the entire St.Johns County sign Or dinance, codified

as Article VII

of the St. Johns County LDC. X. CONCLUSION We reverse the

district courts’ ruling that § 7.00.01 27 and § 7.00.08 28 are facially uncons

titutional. We a

ffirm the dist

rict courts’ rul

ing that § 7.03.01 29 of Ordinance 99-51 is f

acially unconsti

tutional and cannot be s evered from t he rest of Article VII of the LDC. We also hold that the lack of specific guidelines needed to limit the discretion of the County Administrator creates an unconstitutional prior restraint on s peech.37

Finding severance i nappropriate unde r these circumstances, we stri ke down Article VII of

the St. Johns County

LDC in its entire

ty. Because w

e find Ordinance 99-51 unconstitutional on its face, we need not determine whether Ordinance 99-51 is u nconstitution al as applied to the appellees. AFFIRMED in part, and REVERSED in part.38

KRAVITCH,

concurring in part,

dissenting in part: The majori

ty holds that the S

t. John’s County

Ordinance runs af

oul of the First Amendment in two separate way s. First, the ordinance creates an unacceptable prior

restraint on speec

h by placing too m

uch discretion in the county admin

istrators in accep

ting or rejecting s

ign licenses. Second, the ordinance favors commercia l over non-comm

ercial speech, t

hereby, disfa

voring core political spee

ch. Although I agre

e with the legal sta

ndards announced in the majority opinion, I disagree , in part, with the application of these

standards to the ordinance at issue here. Specifically, in my view , the ordinance establishes sufficiently e

xplicit and objecti

ve standards for re

viewing sign applicat

ions and thus does not vest adm

inistrators with unbr

idled discretion. I

n addition, the ordinance provides le ss protection for non- commerc ial speech only w

ith regard to on-premise s igns. There fore, I respe ctfully con cur only in p art with th e majority’s holding.

I. Prior Restra

int Analysis As the major

ity correctly

states, county

administrator

s may not hav

e unbridled discretion t

o determine w

ho can announce their

commercial and noncommercial viewpoints. See City of Lakew ood v. Plain Deale

r Publ’g Co. , 48639

U.S. 750, 108 S. Ct. 2138, 100 L.E d. 2d 771 (1988). For

instance, in City of Lakewood , the Supreme

Court determi

ned that a city pl

an, which allowe

d the mayor to de

termine unilat

erally which n

ewspapers could pla

ce newsracks on ci

ty streets and only required him to provide a reason for any denials, was an impermissible prior restrain t because it vested t oo much discretion with the mayor. Id. at 753-60, 108 S.Ct . at 2142-46. Ther e, the Suprem

e Court required “

that the city establish ne

utral criteria to

insure that the lice

nsing decision is not base d on the content or viewpoint of the speech being considered.” Id. at 760, 108 S.Ct. at 2146. Here, St. John’ s County has established neutral crit eria for mak

ing its licensing decisions. The sign code is extensive and regulates the number, size, and construction of sig

ns. The county

has a legitimat

e state interest in regulating signs for traffic,

safety, and a

esthetic reasons,

and, thus, it can e stablish a licensing procedure that limits th e signs on these ba ses. See Metromedia v. City of San Diego , 453 U.S. 490, 502-03, 10 1 S.Ct. 2882, 2889-90 , 69 L.Ed.2d 800 (1981). In addition, the count

y administr

ator must provide

a written copy

of the his decision, if request ed, and the decision then can be appealed. See § 7.00.07. Both of these factors di stinguish the St. John’ s County’s ordi nance from the

one challenged in Lakewood

.40

The majority determines that there is the potential for content-based discrimination w

ith regard to politic al message signs and on-premise

signs, and that this creates a

prior restraint pr

oblem. Althoug

h I agree that St.John’s County makes an impermissible distinction between comm ercial and non-commercial speech when regula

ting on-premise

signs, I do not agree

that this is a prior restraint issue. T

he process for receiving a sign perm it is explained in deta

il, based on objective factors, and open to judicial review. In fact, the criteria are announced clearly enough for this court to rule on the substance of the code based on the face of the ordi nance. Moreover, this cour

t has held that county

regulations that addr

ess the number, size and construc tion of outdoor s igns are permissible. See Granite State Outdoor Advertising, Inc. v. City of Petersburg , 348 F.3d 1278, 1282 (11th Cir. 2003). There, t

he city also dre

w distinctions betwe

en on-premise and off-prem ise advertising. The distinction in the ordinance required the city examiner to review the conten t of any prop osed sign to determine if it met the o rdinance’s requirements, although the city claimed that the review was not for viewpoint. Id. at 1282, n.3. Nonetheless, the court found that such minimal content based distinctions di d not make the provisio n an impermissible prior rest raint. Id. at 1282. The existenc e of a content revie w, in itself, did not vest administr ators with1 The majority notes that the ordinance’s process is not content-neutral because the appeal’s procedure required the County to make content-ba sed decisions. Section 7.00.08. states that: In any case where the me ssage or content of the proposed Sign affected the denial of the permit, the C

ounty shall be

ar the cost of initi

ating the case w

ith the Circuit Court and shall also bear the burden of justifying the denial. I n all other cases, the applicant shall have the burden to initiate the Circuit Court appeal, as provided by law. Although this prov

ision demands a con

tent-based anal

ysis, it is not a

n impermissible prior restraint. First, there is not a Metromedia violation because commercial speech is not advantaged over non-commercial speech. Rather, the provision establishes a prefer ence for “core” speec

h by making

the county b

ear the burden o

f proof and costs o

f initiating case

s in circuit court if a denial is based on the content of the message. Second, in Freedman v. Maryland , the Supreme Court required municip

alities to “bear t

he burden of go

ing to court to suppress speech and must bear the burden of proof once in court.” FW/PBS v. City of Dallas , 493 U.S. 21 5, 227 (199 0) (citing Freeman , 380 U.S. 51, 58-60, 85 S.Ct. 734, 738-40 (1965)). The county w

as most likely

attempting to wri

te its code to meet t

his Freedman

requirement. 41 unbridled discret ion because the revi ew was based on objectiv e factors. Here, we review a simi

lar sign regulation pr

ocedure. Although t

he ordinance ma

y infringe on first amendment protections by making im permissible distinction between types of speech,

it does not vest adm

inistrators with too much discretion

. 1

II. Content Base

d Distinctions

I agree with the majority that St. John’s County may not favor comm

ercial messages over political messages. See Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. However,

I partly disagr

ee that the ordinance challenged here d oes so. The42

majority determines that the count y’s ordinance favors commercial speech for two reasons: first, pol

itical speech is lim

ited to signs no mor

e than 32 square fee

t but that comme

rcial speech can b e placed on larger billboards; and second

, the ordinance prohib its political spe ech from being posted on an “on-premise” sign. I disagree that the S

t. John’s County

ordinance does the f

ormer, but ag

ree that it does the latter. On the first point,

the plain text of the S

t. John’s ordinance permits both

commerc ial and political m

essages on billboards,

which can be as lar

ge as 560 square feet. Se

ction 7.01.03 regula

tes the size of billbo ards and contains no reference to the conten t. Section 7.03.01, by cont rast, regulates speci al use signs. That section does not

apply to billboard

s and expands the areas where political signs may be

placed. That sec

tion states, in rele

vant part:

The following Signs

shall be allowed in addition to other Signs allowed by this Code and are subject to the provisions contained herein and violation of

these provisions shall result in a violation of this Code.... L. Political Me ssage Signs, lim ited to thirty-tw

o square feet, ex

cept those in residential d

istricts which shal

l not exceed six (6) square feet. (Emphasis added). The majori

ty concludes that

this section limi

ts political mes sage signs to thirty-two squa

re feet, a size

much small

er than the 560 square

feet permitt

ed for43

billboards. The m

ost natural reading o f the ordinance, ho wever, leads to a different interpr

etation. Billboar

ds, as large as 560 square feet, m ay contain political or

commercial messages under § 7.01.03. Other signs bearing political messages are

allowed in addition to billboards, but are limited to 32 square feet under § 7.03.01. In short, the political message signs provision in § 7.03.01 does not limit the size

of political me ssages on billboards, but simply pe

rmits signs other than billboards. If residents of St. John’s County wish to publicize political views, they can do so on a 560 square f oot billboard or on sm

aller signs in residential area

s. On the second point, I agree with the majority that the county’ s ordinance favors commercial speech over po litical speech in reg ulating on-premise sig ns. Here, the county restricts non-commerc ial speech where it permits commerc ial speech, and, ther

eby, provides le ss protection to “ core” speech in viol

ation of the Metromedia

rule. For the abov

e reasons, I conc

ur in part and dissent i

n part with the majority

opinion.