FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 17, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-11100

Non-Argument Calendar

________________________

D. C. Docket No. 01-01376-CV-WBH-1

GRANITE STATE OUTDOOR ADVERTISING, INC., 

Plaintiff-Appellant, 

versus 

COBB COUNTY, GA, a political 

subdivision of the State of 

Georgia, 

BILL BYRNE, an individual and 

in his capacity as Chairman 

of the County Commission, 

ROB HOSACK, as an individual 

and in his capacity as 

Director of Community Development, 

SHERLINE ADAMS, as an individual and 

in her capacity as Code Enforcement 

Officer, 

MARGIE VAZQUEZ, as an individual and 

in her capacity as Code Enforcement 

Officer, 

Defendants-Appellees. 
2

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 17, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Granite State Outdoor Advertising, Inc., appeals the summary judgment

against its complaint that the Cobb County Sign Ordinance violates the free speech

guarantees of both the First Amendment of the United States Constitution and the

the Georgia Constitution. See Cobb County, Ga., Official Code of County of Cobb,

Art. VI §§ 134-311 to -375 [hereinafter Sign Ordinance]. Granite State applied for

permits to erect several off-premises outdoor advertising signs, which are categorically

banned under the Sign Ordinance. See id. §§ 134-311, -313(p)(17). Granite State

argues that the district court erred when it (1) concluded that the ban of offpremises outdoor advertising signs does not violate the First Amendment; (2)

concluded that Granite State lacked standing to challenge several other provisions

of the Sign Ordinance that do not pertain to off-premises outdoor advertising signs;

and (3) failed to consider whether the Sign Ordinance violated the Georgia

Constitution. We affirm the summary judgment regarding the first two
3

conclusions, but we vacate and remand in part because the district court failed to

provide a rationale for its dismissal of the claims under state law. 

I. BACKGROUND

The Sign Ordinance regulates the permitting, location, number, methods of

construction, size, height, and maintenance of signs within Cobb County. Sign

Ordinance §§ 134-311 to -375. Cobb County enacted the Sign Ordinance to

“protect[] the health, safety and welfare of residents, visitors and businesses in the

county” because signs could creat[e] traffic hazards” and “negatively impact[] the

general appearance of an area.” Id. § 134-312. The Sign Ordinance states that it

“shall not regulate the specific content of signs. Any sign, display or device

allowed under this article may contain commercial or noncommercial copy, except

that such copy shall not contain” materials that are obscene or advertise illegal

activity. Id. § 134-313(q). 

All signs in Cobb County “require a permit unless specifically exempted by”

the Sign Ordinance. Id. §§ 134-313(b), -371. To receive a sign permit, an

applicant must submit an application, id. § 134-373(c), and pay a permit fee “as

established by the board of commissioners from time to time,” id. § 134-375. The

Sign Ordinance provides that “the county . . . shall examine and process the

application within a reasonable amount of time. Though a longer period of time
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may be reasonable . . . , five business days shall be considered a reasonable amount

of time in most cases.” Id. § 134-373(d). If the County denies the permit, “the

applicant shall be given written notice stating the reason for the denial within 15

days” and the applicant may appeal the decision. Id. § 134-373(e). 

The County considers the type of sign the applicant proposes to construct to

determine whether to issue a permit. “On-premise signs,” which are defined as a

“sign which identifies” something “sold, offered or conducted on the premises

where the sign is located,” must comply with the restrictions in section 134-314. 

Id. § 134-314. “Off-premises signs,” which is a “sign with a noncommercial

message,” id. § 134-311, also require a permit and must comply with section 134-

315. Id. § 134-315. “Temporary signs” are restricted based on location, size, and

length of time. Id. § 134-316. “Electronic signs may only be used to advertise

activities actually conducted on the property . . . or to present public service

information.” Id. § 134-313(o). “Any activity or business which offers as its

primary business purpose tourism or public recreational activity” may apply for a

“directional sign” with the County Board of Commissioners. Id. § 134-317. 

Some signs do not require a permit. E.g., id. § 134-373(b)(1)–(21).

“Noncommercial signs” that are “32 square feet or less” are allowed without a

permit. Id. § 134-372(b)(6). The County exempts signs “traditionally associated
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with a holiday” as long as they contain a noncommercial message. Id. § 134-

372(b)(7). The County also exempts warning or regulatory signs, id. § 134-

372(b)(17), and political signs that comply with certain restrictions on location and

size, id. § 134-372(b)(21). 

Some signs are completely banned by the Sign Ordinance. “Off-premise

outdoor advertising signs,” defined as “off-premise sign[s] with a commercial

message,” are prohibited. Id. §§ 134-311, -313(p)(17). No signs may “contain

nudity, sexual conduct, obscene or pornographic material or advertise an illegal

activity.” Id. § 134-313(q); see id. §§ 134-313(p)(12), -313(p)(8). 

Granite State buys or leases property to construct commercial and

noncommercial signs. By 2001, Granite State had signed leases with different

property owners to post twelve signs in Cobb County and submitted twelve

applications to Cobb County seeking permits. The County denied the applications

the same day because the Sign Ordinance prohibited billboards as “off-premises

outdoor advertising signs.” See §§ 134-311, -317(p)(17). 

On May 29, 2001, Granite State filed a complaint against Cobb County and

individual Cobb County officials that alleged the Sign Ordinance violated the First

Amendment of the United States Constitution and the free speech provisions of the

Georgia Constitution. Granite State requested an injunction against the
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enforcement of the Sign Ordinance and damages. See 42 U.S.C. § 1983. On July

6, Cobb County moved to dismiss, and the district court converted the motion to

dismiss into a motion for summary judgment. Granite State cross-moved for

summary judgment. 

In support of its motion, Granite State submitted a certified copy of the Sign

Ordinance; an affidavit of Wayne Charles, the President of Granite State; and

several court decisions regarding sign ordinances. Charles testified that Granite

State had entered into leases with owners of real properties in Cobb County to

construct signs. His affidavit did not contain any information about the messages

on the proposed signs.

On March 26, 2002, the district court dismissed the claims against the

individual defendants and granted the motion for summary judgment in favor of

Granite State. The district court concluded that the Sign Ordinance granted

unbridled discretion to County officials because it “fail[ed] to impose reasonable

time limits on the decision maker.” See Sign Ordinance § 134-373(d); see

Freedman v. Maryland, 380 U.S. 51, 57, 85 S. Ct. 734, (1964). 

After the district court issued its opinion, but before it issued a final

judgment, we decided Granite State Outdoor Advertising, Inc. v. City of

Clearwater, 351 F.2d 1112 (11th Cir. 2003). Because of this decision, on October
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15, 2004, the district court vacated the grant of summary judgment and granted

summary judgment in favor of Cobb County. The district court relied on Granite

Clearwater to conclude that Granite State had standing to challenge provisions of

the Sign Ordinance that caused personal harm to the Granite State. See Sign

Ordinance §§ 134-313(p)(17), 134-311. The district court concluded that sections

134-313(p)(17) and 134-311 were constitutional. The district court reasoned that

because the ordinance “allows for noncommercial signs anywhere a commercial

sign could be located,” the ordinance did not favor commercial speech over

noncommercial speech. The district court also concluded that the restrictions on

commercial speech in the Sign Ordinance met the requirements in Central Hudson

Gas, 447 U.S. 557, 100 S. Ct. 2343, because Cobb County’s asserted purposes of

aesthetics and traffic safety were “substantial government interests” that were “no

more extensive than necessary.” 

Granite State appealed the decision of the district court. After the parties

filed their initial briefs, we requested supplemental briefs that addressed the

intervening decisions issued by our Court in Tanner Advertising Group LLC v.

Fayette County, 451 F.3d 777 (11th Cir. 2006) (en banc), and CAMP Legal

Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257 (11th Cir. 2006). 
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II. STANDARD OF REVIEW

We review standing determinations de novo. Bochese v. Town of Ponce

Inlet, 405 F.3d 964, 975 (11th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 377

(2005). We review grants of summary judgment de novo. State Farm Fire & Cas.

Co. v. Steinberg, 393 F.3d 1226, 1229 (11th Cir. 2004) (citing Iraola & CIA, S.A.

v. Kimberly-Clark Corp., 325 F.3d 1274, 1283 (11th Cir. 2003)). 

III. DISCUSSION

Granite State presents three arguments. First, Granite State argues that the

district court erroneously concluded that sections 134-311 and 134-313(p)(17),

which ban off-premises outdoor advertising signs, do not violate the First

Amendment. See Sign Ordinance §§ 134-311, -313(p)(17). Second, Granite State

contends that the district court erred when it concluded that Granite State lacked

standing to challenge several other provisions of the Sign Ordinance that do not

pertain to off-premises outdoor advertising signs. See Sign Ordinance §§ 134-

313(a), -313(o), -313(p)(8), -313(p)(12), -314, -315, -318(a), -371, -372(b)(6), -

372(b)(7), -372(b)(21), -372(b)(17). Third, Granite State contends that the district

court erred because it failed to consider whether any provision of the Sign

Ordinance violates the Georgia Constitution. We consider each argument in turn.
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A. Sections 134-311 and 134-313(p)(17) of the Sign Ordinance Do

Not Violate the First Amendment.

Granite State contends that the district court erroneously concluded that

sections 134-311 and 134-313(p)(17), which jointly prohibit “off-premises outdoor

advertising signs,” are constitutional. The district court ruled that the provisions

did not favor commercial over noncommercial speech and satisfied the standards

for restrictions on commercial speech in Central Hudson Gas, 447 U.S. 557, 100 S.

Ct. 2343 (1980). We agree with the district court. 

Sections 134-311 and 134-313(p)(17) do not favor commercial speech over

noncommercial speech. Section 134-313(p)(17) prohibits “off-premises outdoor

advertising signs,” which are defined as signs “with a commercial message.” Sign

Ordinance § 134-311, -313(p)(17). Because this prohibition does not apply to

signs that have a noncommercial message, the expression of commercial speech is

more restricted than noncommercial speech in the Sign Ordinance. 

Granite State contends that the prohibition does not directly advance a

substantial government interest and is more extensive than necessary. Because the

prohibition on “off-premises outdoor advertising signs” extends only to

commercial speech, we review the challenge to these provisions under the four-part

test articulated by the Supreme Court in Central Hudson Gas:
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At the outset, we must determine whether the expression is protected

by the First Amendment. For commercial speech to come within that

provision, it at least must concern lawful activity and not be

misleading. Next, we ask whether the asserted governmental interest

is substantial. If both inquiries yield positive answers, we must

determine whether the regulation directly advances the governmental

interest asserted, and whether it is not more extensive than is

necessary to serve that interest.

 447 U.S. at 566, 100 S. Ct. at 2351. 

Both provisions pass constitutional muster as prior restraints on commercial

speech. First, neither party disputes that the messages of Granite State constitute

protected speech. Second, the Sign Ordinance was enacted “to protect against

traffic hazards and to reduce the adverse impact on the county’s aesthetic

qualities,” see Sign Ordinance § 134-312(a), both of which are substantial

government interests, see Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

407–08, 101 S. Ct. 2882, 2892 (1981). Third, the Supreme Court has stated that

“the prohibition of offsite advertising is directly related to the stated objectives of

traffic safety and esthetics.” Id. at 511, 101 S. Ct. at 2894. Fourth, the Supreme

Court has also stated that a prohibition of off-site advertising goes “no further than

necessary” to fulfill the goals of traffic safety and aesthetics. Id. at 508, 101 S. Ct.

at 2893. The district court correctly concluded that sections 134-311 and 134-

313(p)(17) are constitutional restrictions on commercial speech.
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B. Granite State Has Standing to Challenge Only Provisions That

Govern Its Activity of Erecting Off-Premises Outdoor Advertising

Signs.

Granite State argues that the district court erroneously concluded that it

lacked standing to challenge several provisions of the Sign Ordinance. In its initial

brief, Granite State argues that the Sign Ordinance grants unbridled discretion to

County officials through the lack of procedural safeguards, see Sign Ordinance §

134-373, the prohibition on “nudity, sexual conduct, [o]r obscene” content, see

Sign Ordinance §§ 134-313(q), 134-313(p)(8), and the prohibition on the

advertisement of “illegal activity,” see id. § 134-313(q), -313(p)(12). Granite State

also argues that the district court erroneously dismissed its challenges to provisions

of the Sign Ordinance that allegedly impose unconstitutional prior restraints. See

id. §§ 134-372(b)(1)–(21), -315, -316, -317, -318(a), -371. We consider each

argument in turn.

1. Granite State Lacks Standing to Challenge Provisions That

Allegedly Grant Unbridled Discretion. 

Granite State lacks standing to challenge the provisions that it alleges grant

unbridled discretion to County officials. “The Supreme Court has ‘long held that

when a licensing statute allegedly vests unbridled discretion in a government

official over whether to permit or deny expressive activity, one who is subject to

the law may challenge it facially without the necessity of first applying for . . . a
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license,’” but “[t]he challenged provisions ‘must have a close enough nexus to

expression . . . to pose a real and substantial threat of the identified censorship

risks.’” CAMP, 451 F.3d at 1274 (quoting City of Lakewood v. Plain Dealer

Pub’g Co., 486 U.S. 750, 755–56, 758, 108 S. Ct. 2138, 2143, 2145(1988)). 

Granite State is not subject to the provisions that allegedly grant unbridled

discretion. 

Granite State is not subject to the procedural requirements of the Sign

Ordinance. See Sign Ordinance § 134-373. Granite State does not deny that its

sign applications were for “off-premises outdoor advertising signs,” and the Sign

Ordinance completely bans “off-premises outdoor advertising signs.” Id. § 134-

313(p)(17). Granite State offered no evidence that it is engaged in any form of

expression that is permitted under the Sign Ordinance. Granite State may not

challenge the lack of procedural safeguards in the permit requirements because it is

not subject to them. See CAMP, 444 F.3d at 1274. 

Granite State likewise failed to establish that its signs are subject to the

prohibition on messages that are obscene or advertise illegal activity. See Sign

Ordinance §§ 134-313(p)(8), (12), -313(q). Granite State concedes that the signs it

seeks to construct are categorically banned without regard to whether the messages

are obscene or advertise illegal activity. See id. § 134-313(p)(17). Because
13

Granite State is not subject to these provisions, it lacks standing to challenge these

provisions. 

Granite State argues in its supplemental brief that the Sign Ordinance grants

unbridled discretion to allow signs based on content, see id. §§ 134-317, -

372(b)(1)–(21), but it has waived this argument because it failed to raise them in its

initial brief. “Under the established law of this Circuit, ‘issues that clearly are not

designated in the initial brief ordinarily are considered abandoned.’” Tanner, 451

F.3d at 787 (quoting Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)). In

its initial brief, Granite state argued that these exemptions were content-based prior

restraints of speech, not grants of unbridled discretion. Granite State cannot now

argue that these provisions grant County officials unbridled discretion. 

2. Granite State Lacks Standing to Challenge Allegedly

Unconstitutional Prior Restraints.

Granite State argues that the district court erroneously dismissed its

challenges to several provisions of the Sign Ordinance as unconstitutional prior

restraints on speech. See Sign Ordinance §§ 134-372(b)(1)–(21), -315, -316, -317,

-318(a), -371. We have stated that “[i]n a challenge of a prior restraint on speech

the plaintiff must establish that the challenged provision pertains to its activity, and

not merely that it is ‘subject to the law.’” CAMP, 444 F.3d at 1276 (quoting City

of Lakewood, 486 U.S. at 755–56, 108 S. Ct. at 2143). Because its challenges
14

were dismissed on a motion for summary judgment, Granite State “must ‘set forth’

by affidavit or other evidence ‘specific facts’ to prove standing.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (quoting Fed. R.

Civ. P. 56(e)). None of the provisions that Granite State challenges pertains to its

activities. 

Granite State lacks standing to challenge the restrictions on “temporary

signs,” id. § 134-316, directional signs for the purpose of tourism or public

recreation, see id. § 134-317, and “off-premises signs,” see id. § 134-315(a).

Because there is no evidence in the record that the signs Granite State intended to

construct signs governed by any of these regulations, Granite State does not have

standing to challenge them. The record shows that the only intended activity of

Granite State is outdoor advertising, which is categorically banned. Id. §§ 134-

316, -317.

Granite State also lacks standing to challenge the exemptions in the Sign

Ordinance, see Sign Ordinance § 134-372(b)(1)–(21), or the permit requirement,

see id. -371. The injury that Granite State suffered from being denied a permit

under the categorical ban on off-premises outdoor advertising would not be

redressed by a challenge to these provisions. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 561, 112 S. Ct. 2130, 2136 (1992); see also Dimmitt v. City of
15

Clearwater, 985 F.2d 1565, 1568 (11th Cir. 1993). Even if these provisions were

declared unconstitutional, the Sign Ordinance would continue to prohibit offpremises outdoor advertising, which is the only intended activity of Granite State. 

Because Granite State cannot establish that its injury will be redressed by a

favorable decision, “there would be no point in evaluating [Granite State’s]

arguments as to those provisions.” Coral Springs Street Sys., Inc. v. City of Sunrise,

371 F.3d 1320, 1349 (11th Cir. 2004). 

C. We Are Unable Meaningfully to Review the Claims of Granite State

Under the Georgia Constitution. 

Granite State argues that the district court erred when it granted summary

judgment because the district court failed to consider whether any provision of the

Sign Ordinance violates the Georgia Constitution. The district court dismissed

these claims sub silentio, but because the district court “did not discuss the

matter[,] [i]t would be difficult for us to review the issue in this context.” Lucero

v. Trosch, 121 F.3d 591, 598 (11th Cir. 1997). The district court may have

concluded, on the one hand, that the arguments of Granite State under the Georgia

Constitution lacked merit because they failed under the First Amendment. But see

CAMP, 451 F.3d at 1280 (“Georgia courts depart from federal constitutional free

speech analysis for . . . content-neutral speech . . . because Georgia requires the

‘least restrictive means’ to regulate content-neutral speech.” (quoting Statesboro
16

Publ’g Co. v. City of Sylvania, 516 S.E.2d 296, 299 (Ga. 1999))). The district

court may have declined, on the other hand, to exercise supplemental jurisdiction

because it “dismissed all claims over which it ha[d] original jurisdiction.” 28

U.S.C. § 1367(c); see also United Min Workers v. Gibbs, 383 U.S. 715, 86 S. Ct.

1130 (1966). “[I]f the federal claims are dismissed prior to trial, Gibbs strongly

encourages or even requires dismissal of state claims.” Mergens v. Dreyfoos, 166

F.3d 1114, 1119 (11th Cir. 1999) (citations omitted). When a district court

declines to exercise supplemental jurisdiction because only state law claims

remain, the district court should dismiss the state law claims without prejudice “so

that the claims may be refiled in the appropriate state court.” Crosby v. Paulk, 187

F.3d 1339, 1352 (11th Cir. 1999). “As a practical matter, the district court is in the

best position to weigh . . . whether it is appropriate to exercise supplement

jurisdiction.” Lucero, 121 F.3d at 598. Because we cannot meaningfully review

the decision of the district court regarding the claims for relief under the Georgia

Constitution, we vacate the dismissal of those claims and remand for further

proceedings consistent with this opinion. 

IV. CONCLUSION

We affirm the summary judgment by the district court regarding the claims

for relief under the First Amendment of the United States Constitution. We vacate
17

and remand the dismissal of the claims for relief under the Georgia Constitution. 

The summary judgment by the district court is 

AFFIRMED in part and VACATED and REMANDED in part.