1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BILL SALTER ADVERTISING, INC.,

Plaintiff,

v. CASE NO. 3:11-cv-297-RS-EMT

SANTA ROSA COUNTY, FLORIDA;

SANTA ROSA COUNTY BOARD OF

COMMISSIONERS; and

SOUTHEAST-SD, LLC,

Defendants.

_________________________________________/

ORDER

Before me are Defendants‟ motions to dismiss (Docs. 28 & 29) and 

Plaintiff‟s response to the motions (Doc. 37).

I. Standard of Review

In order to overcome a motion to dismiss, a plaintiff must allege enough 

facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is 

clear that no relief could be granted under any set of facts that could be proven 

consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 

U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the 

complaint as true and in the light most favorable to the plaintiff. Shands Teaching 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 1 of 15
2

Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir. 

2000)(citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir. 

1999)). 

II. Background

Plaintiff, Bill Salter Advertising, Inc. (“Salter”), is a Florida corporation in 

the business of erecting and operating advertising signs. At issue here are permits 

under Santa Rosa County, Florida, Code of Ordinances § 8.07.00—Permanent offpremises signs. Section 8.07.01(C)(1) states that along Highway 90 “[n]o offpremises sign shall be placed within two thousand (2,000) feet of any other offpremises sign on the same side of the street right-of-way [or] within a three 

hundred (300) food radius of another off-premises sign.”

On March 2, 2009, Mark Locklin obtained zoning approval from Defendant, 

Santa Rosa County (“County”), to erect an off-premise sign at the northeast corner 

of Highway 90 and Woodbine Road. When the permit was awarded, Plaintiff had 

a State of Florida outdoor advertising permit located within 2,000 feet of Locklin‟s 

sign permit, which violates § 8.07.01(C)(1).

The Locklin permit expired on March 2, 2010, and Locklin was notified by 

the County of its expiration. On March 4, 2010, Defendant Southeast informed the 

County‟s zoning officials that it had taken the location over from Locklin and 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 2 of 15
3

asked the permit to be extended two months. County granted the extension until 

May 3, 2010. 

On May 3, 2010, when the permit was set to expire, Plaintiff submitted an 

application to erect an off-premises sign on a parcel adjacent to Southeast‟s 

location. Also on May 3rd, Ellis Crane Works, Inc. (“Ellis”), the licensed 

contractor of Southeast, applied for a building permit at the site. On May 13, 2010, 

the County informed Plaintiff that its application was being denied because it was 

“spaced out” by Southeast‟s permit. Southeast obtained a building permit via Ellis, 

which was extended by the County to expire on May 20, 2011. Due to 

nonpayment, Ellis cancelled the Southeast building permit, which became official 

on February 21, 2011.

On March 2, 2011, Plaintiff submitted another application to erect an offpremises sign on the parcel adjacent to the Southeast site. Recognizing that the 

Southeast project was over, the County approved Plaintiff‟s application to erect the 

proposed sign on March 4, 2011.

Southeast, not yet ready to give up on the project, contacted County staffers 

and the County Attorney requesting that the County reverse its decision. On 

March 25, 2011, three weeks after approving Plaintiff‟s application, the County 

reversed itself and determined that Ellis‟ cancellation of the Southeast building 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 3 of 15
4

permit was invalid. The County also revoked Plaintiff‟s permit stating once again 

that it was “spaced out” because of Southeast‟s project.

Plaintiff timely appealed the revocation to the County Board of Adjustments, 

which affirmed the County‟s decision, and the Board of Commissioners, which 

reversed the County‟s decision. However, the Board of Commissioners did not 

revoke Southeast‟s permit, so although Plaintiff received permission for a permit, 

he could not build the sign because of the state‟s spacing requirement. In addition, 

when Plaintiff asked the County to comply with the Board‟s decision, the County 

refused to issue Plaintiff‟s permit until he removed another off-premise sign east of 

the proposed location, which was never a condition mentioned by the Board.

Plaintiff has filed an eight-count complaint for declaratory judgments; 

violations of substantive due process, procedural due process, and the equal 

protection clause of the Fourteenth Amendment; violations of the First 

Amendment; and a state-law claim of inverse condemnation. Defendants Santa 

Rosa County and Santa Rosa County Board of Commissioners filed a motion to 

dismiss (Doc. 28) all counts, and Defendant Southeast-SD, LLC filed a motion to 

dismiss (Doc. 29) Counts One, Two, Three, Six, and Seven.

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 4 of 15
5

III. Analysis

Count One

Count One of the First Amended Complaint (Doc. 20) seeks appellate 

review of the Board‟s May 26, 2011, decision to grant Southeast‟s zoning and 

building permits. This Court has supplemental jurisdiction over this state law 

claim pursuant to 28 U.S.C. § 1367, which states that “in any civil action of which 

the district courts have original jurisdiction, the district courts shall have 

supplemental jurisdiction over all other claims that are so related to claims in the 

action within such original jurisdiction that they form part of the same case or 

controversy . . . .” Counts two, three, four, five, and six are all claims within this 

Court‟s original jurisdiction and are part of the same case or controversy; therefore, 

supplemental jurisdiction is proper. See generally Flava Works, Inc. v. City of 

Miami, Fla., 609 F.3d 1233, 1237-38 (11th Cir. 2010).

Defendants assert that supplemental jurisdiction is improper because under 

Florida law, a petition for writ of certiorari must be filed within thirty days of the 

order to be reviewed. Fla. R. App. P. 9.030(c)(2) & 9.100(c)(2). When a district 

court exercises supplemental jurisdiction over a state claim, state law applies. 

Flava Works, Inc., 609 F.3d at 1327. In Florida, the timing of an appeal is 

jurisdictional. Medley Hardwoods, Inc. v. Rojas, 4 So.3d 1270 (Fla. 1st Dist. Ct. 

App. 2010).

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 5 of 15
6

Defendants argue that the petition for writ of certiorari was not pled in the 

original Complaint, and because the First Amended Complaint was filed more than 

thirty days after the Board‟s decision, it is untimely and supplement jurisdiction no 

longer applies. Defendants‟ argument hinges on whether the petition for writ of 

certiorari was properly pled in Plaintiff‟s original complaint. In the original 

complaint, Plaintiff states that he was seeking a “Declaratory Judgment—The 

Board‟s Decision to Allow Southeast to Move Forward with Its Signs Is

Erroneous” and that “[t]he Board‟s decision is subject to de novo review by this 

Court.” (Doc. 1, p. 8). The original complaint was filed on June 23, 2011, which 

is within thirty days of the Board‟s decision on May 26, 2011. Plaintiff filed a 

First Amended Complaint on August 23, 2011, again seeking a declaratory 

judgment and stating that “[t]he Board‟s decision is subject to appellate review by 

this Court.” (Doc. 20, p. 10). The First Amended Complaint, however, was not 

filed within thirty days of the Board‟s decision.

Although both Complaints state that Plaintiff is seeking a declaratory 

judgment, it is clear from the descriptions that Plaintiff is, in fact, seeking appellate 

review of the Board‟s decision. The original Complaint asked for “de novo

review” of the Board‟s decision. Plaintiff‟s original Complaint was sufficient 

enough to put Defendants on notice of the claim and the grounds upon which it 

rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Therefore, 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 6 of 15
7

Plaintiff timely filed its petition for appellate review, and the motions to dismiss as 

to Count One are denied.

Count Two

Count Two alleges that Defendants violated Plaintiff‟s substantive due 

process rights under the Fourteenth Amendment by issuing permits to Southeast in 

violation of the County Code. The Due Process Clause of the Fourteenth 

Amendment states “nor shall any State deprive any person of life, liberty, or 

property, without due process of law.” U.S. Const. amend. XIV, § 1. The 

Supreme Court concluded that this clause implicates two different kinds of 

procedure rights: substantive due process and procedural due process. 

The substantive component of the Due Process Clause protects those rights 

that are “fundamental,” that is, rights that are “implicit in the concept of 

ordered liberty.” The Supreme Court has deemed that most—but not all—of 

the rights enumerated in the Bill of Rights are fundamental; certain 

unenumerated rights . . . also merit protection.

McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994). 

McKinney goes on to state that “areas in which substantive rights are 

created only by state law . . . are not subject to substantive due process protection 

under the Due Process Clause because „substantive due process rights are created 

only by the Constitution.‟ ” Id. In addition, “[a]ccording to McKinney, nonlegislative deprivations of state-created rights, which would include land-use 

rights, cannot support a substantive due process claim, not even if the plaintiff 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 7 of 15
8

alleges that the government acted arbitrary and irrationally.” Greenbriar Village, 

LLC, v. Mountain Brook, 345 F.3d 1258, 1263 (11th Cir. 2003).

Plaintiff attempts to fall under an exception to this rule: “When the statecreated right is deprived in a manner that implicates a fundamental right, for 

example, when a state employee is fired in violation of the First Amendment for 

expressing his views.” Id. at 1262 n.3 (citing Beckwith v. City of Daytona Beach 

Shores, 58 F.3d 1554 (11th Cir. 1995)). In Plaintiff‟s First Amended Complaint, it

states that “denial of the Salter permit in clear violation of the applicable 

regulations have effectively deprived Salter of its ability to speak.” (Doc. 20, p. 

12). However, when taking all facts alleged in the complaint as true, Plaintiff‟s 

case does not fall within the exception.

Nowhere in the First Amended Complaint does Plaintiff allege that he was 

denied a permit because of the message Salter wished to display on the sign. In 

fact, Plaintiff never states what the message was going to be. (Doc. 20, p. 9). If 

the County had denied Plaintiff‟s permit application in order to prevent Salter from 

exercising his First Amendment rights, then the exception would apply, but that is 

simply not the case here. This is a land-use dispute, and property interests do not 

arise from the Constitution. Therefore, substantive due process does not apply, and 

Count Two is dismissed.

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 8 of 15
9

Count Three

In Count Three, Plaintiff alleges that it “has a protected property interest in 

its lease and sign permit and has a right to sufficient notice and an opportunity to 

be heard with respect to any governmental decision which will harm such 

interests.” (Doc. 20, p. 13). The Eleventh Circuit requires proof of three elements 

for a successful procedure due process claim: “(1) a deprivation of a 

constitutionally-protected liberty or property interest; (2) state action; and (3) 

constitutionally-inadequate process.” Arrington v. Helms, 438 F.3d 1336, 1347 

(11th Cir. 2006). 

Specifically, Plaintiff alleges that because the County has disregarded orders 

by the Board (its governing body) in the past, seeking an appeal would be futile. 

(Doc. 20, p. 14). Plaintiff already appealed the County‟s denial of his permit 

application, the Board ruled in Plaintiff‟s favor, and the County still would not 

grant Plaintiff the permit. According to Plaintiff, “forcing Salter to go through the 

administrative appeal process a second time would be a futile enterprise.” (Id.). If 

state courts do not provide adequate remedies, then procedural due process is 

violated. See Foxy Lady, Inc. v. City of Atlanta, 347 F.3d 1232, 1238-39 (11th Cir. 

2003). Plaintiff sufficiently alleges that repeating the same process that has 

already failed him would not provide an adequate remedy, so this count should not

be dismissed.

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 9 of 15
10

Counts Four and Five

Plaintiff brought a 42 U.S.C. § 1983 action against the County under the 

Fourteenth Amendment‟s Equal Protection Clause in Counts Four and Five. To 

prevail on a selective enforcement equal protection claim, “Plaintiffs must show 

(1) that they were treated differently from other similarly situated individuals, and 

(2) that Defendant unequally applied a facially neutral ordinance for the purpose of 

discriminating against Plaintiffs.” Campbell v. Rainbow City, 434 F.3d 1306, 1314 

(11th Cir. 2006). There must be no rational basis for the difference in treatment. 

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

Plaintiff alleges that it was treated differently than Southeast and Locklin. 

Locklin was granted a permit for a sign that was “spaced out” by Santa Rosa 

County, Florida, Code of Ordinances § 8.07.01(C)(1); however, when Plaintiff 

applied for a permit that was also “spaced out,” its application was denied. 

Additionally, the County issued Locklin a permit with the condition that it remove 

an existing sign. In a similar situation, the County directed Plaintiff to remove an 

existing sign before being issued the permit. Plaintiff states that “[t]here is 

absolutely no rational basis for the foregoing difference in treatment. Indeed, the 

regulations are clear, concise, and should have been strictly adhered to by County 

staff.” (Doc. 20, p. 16). If Plaintiff‟s allegations are true, then Plaintiff sufficiently 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 10 of 15
11

meets the requirements to bring these claims. Defendant‟s motion to dismiss 

counts four and five is denied.

Count Six

Plaintiff asserts a § 1983 claim under the First Amendment in Count Six. 

Permit and licensing schemes are a form of prior restraint. “An ordinance that 

gives public officials the power to decide whether to permit expressive activity 

must contain precise and objective criteria on which they must make their 

decisions; an ordinance that gives too much discretion to public officials is 

invalid.” Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th 

Cir. 1999).

Plaintiff makes several arguments. First, Plaintiff argues that “although the 

Sign Ordinance requires a permit prior to erecting a sign, no provision compels a 

County official to issue a permit if all requirements of the Ordinance are met.” 

(Doc. 20, p. 18). Second, Plaintiff contends that “the Ordinance is permeated with 

discretion for County officials.” (Id.). The use of the word “may” in Ordinance 

§§ 8.09.01(G), 8.10.03(E), 8.10.04, and 8.10.05 is Plaintiff‟s basis for the 

allegation that the officials have too much discretion.

As to Plaintiff‟s first argument, Sign Ordinance § 8.07.01 says, “Permanent 

off-premises signs shall be permitted . . . and shall conform to the requirements 

below.” In addition, to deny a land-use permit application, Florida law requires 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 11 of 15
12

that the “local government agency must show by competent substantial evidence 

that the application does not meet the published criteria.” Broward Cnty v. G.B.V. 

Int’l., Ltd., 787 So.2d 838, 842 (Fla. 2001). Therefore, unless an application fails 

to meet the requirements in the ordinance, the application must be granted, and 

Plaintiff‟s first argument fails.

Plaintiff‟s second argument rests on the belief that the use of the word 

“may” the ordinances gives public officials too much discretion. Sign Ordinance § 

8.09.01(G) states that it is unlawful to erect or maintain “[s]igns which are not in 

good repair or which may create a hazardous condition or which are abandoned.” 

Sign Ordinance § 8.10.03(E) states that the “Building Inspection Department may 

require that plans submitted be prepared by a registered professional engineer of 

Florida.” Sign Ordinance § 8.10.04 states that the “Building Inspection 

Department may revoke any permit” if the application contained false or 

misleading information or if the permittee has failed to keep the sign in “good 

general condition and in a reasonable state of repair.” This section gives the 

permittee thirty days to rectify any violations of the ordinance. Sign Ordinance §

8.10.05 states that the “Community Planning, Zoning, and Development Division 

may grant an extension to the zoning approval upon demonstration by the applicant 

of ongoing efforts to construct the approved sign.”

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 12 of 15
13

The Supreme Court has previously addressed permit and licensing schemes 

as prior restraints and acceptable limitations: “A licensing standard which gives an 

official authority to censor the content of a speech differs toto coelo from one 

limited by its terms, or by nondiscriminatory practice, to considerations of public 

safety and the like.” Niemotko v. Maryland, 340 U.S. 268, 282 (1951). 

“Regulations ...that ensure the safety and convenience of the people are not 

„inconsistent with civil liberties but ... [are] one of the means of safeguarding the 

good order upon which [civil liberties] ultimately depend.” Cox v. New 

Hampshire, 312 U.S. 569, 574 (1941). Certainly having requirements that 

applications are true and correct and that signs placed on the side of a highway 

remain in good repair and are designed by an engineer are limited to public safety 

issues. See Thomas v. Chicago Park Dist., 534 U.S. 316, 322-24 (2002). These 

ordinances do not give officials unfettered discretion to deny permit applications; 

therefore, Count Six is dismissed.

Count Seven

Plaintiff brings a Florida state-law action for inverse condemnation in Count 

Seven. “The term „inverse condemnation‟ refers to the process by which a 

landowner recovers damages from a governmental taking of his property, even 

though no formal takings or condemnation proceedings have been instituted.” 

Watson Const. Co. v. City of Gainesville, 433 F. Supp. 2d. 1269, 1281 (N.D. Fla. 

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 13 of 15
14

2006). In order to bring this claim, it must be ripe—meaning “the government 

entity charged with implementing the regulations has reached a final decision 

regarding the application of the regulations to the property at issue.” Lost Tree 

Village Corp. v. City of Vero Beach, 838 So.2d 561, 570 (Fla. 4th Dist. Ct. App. 

2002) (quoting Williamson Cnty Regional Planning Comm’n v. Hamilton Bank of 

Johnson City, 473 U.S. 172, 186 (1985)). 

Defendants contend that because Plaintiff never sought appellate review of 

the County‟s refusal to issue him the permit by the Board that this count is not ripe. 

However, Plaintiff has pled that it would be futile to appeal the decision because 

the County has refused to grant the permit after the Board, its governing body, 

ruled in Plaintiff‟s favor on appeal of its first denial. “A limited exception to the 

ripeness requirement might exist where, by virtue of past history, repeated 

submissions would be futile. ...[T]his can negate the requirement of pursuing 

further administrative remedies and the governmental action is effectively treated 

as a final decision.” Id. at 571 (quoting City of Riviera Beach v. Shillingburg, 659 

So.2d 1174, 1181 (Fla. 4th Dist. Ct. App. 1995)).

Additionally, Plaintiff contends that even if it is granted the permit, an

inverse condemnation claim still exists because of the County‟s unlawful granting

of Southeast‟s permit, which “spaces out” Plaintiff‟s permit and extinguishes all

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 14 of 15
15

economically beneficial use of its property interest. (Doc. 20, p. 21). Therefore,

Defendants‟ motions to dismiss Count Seven is denied.

Count Eight

Count Eight seeks a declaratory judgment that Southeast‟s permit is null and 

void. This Court has supplemental jurisdiction under 28 U.S.C. § 1367. The 

motion to dismiss as to Count Eight is denied.

IV. Conclusion

It is ORDERED:

1. Defendants‟ Motions to Dismiss are granted for Counts Two and Six.

2. Defendants‟ Motions to Dismiss are denied as to the remaining counts.

ORDERED on October 25, 2011.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

Case 3:11-cv-00297-RS-EMT Document 45 Filed 10/25/11 Page 15 of 15