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Bruce & Tanya & Associates, Inc. v. Board of Supervisors of Fairfax County

United States District Court, E.D. Virginia, Alexandria Division

November 16, 2018

BRUCE & TANYA & ASSOCIATES, INC., Plaintiff,
v.
BOARD OF SUPERVISORS OF FAIRFAX COUNTY, VIRGINIA, et al. Defendants.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Bruce & Tanya & Associates, Inc. ("BTA" or "plaintiff') has filed a complaint alleging that Virginia's statutory scheme governing signs placed "within the limits of highways-on its face and as enforced by Fairfax County ("County"), the County's Board of Supervisors ("Board") (collectively, the "County Defendants"), and Virginia's Commissioner of Highways ("Commissioner")-violates the First and Fourteenth Amendments to the U.S. Constitution. Before the Court are the County Defendants' motion to dismiss [Dkt. No. 49], the Commissioner's motion to dismiss [Dkt. No. 52], and BTA's motion for summary judgment and injunctive relief [Dkt. No. 55]. The Court has heard oral argument and received supplemental briefing. For the reasons stated below, defendants' motions to dismiss will be granted, BTA's motion will be denied, and judgment will be entered in favor of defendants.

         I. BACKGROUND

         A. Factual Background

         BTA is a real estate company operating across Burke, Springfield, and Fairfax Station, Virginia. Pl.'s Br. in Supp. of Its Mot. for Partial Summ. J. and for a Prelim. Inj. [Dkt. No. 56] ("BTA's SJ Br.") 4; id. Ex. A [Dkt. No. 56-1] ("Tyburski Decl.") ¶¶ 2-3. "[A]s a service to BTA's clients," BTA often posts real estate sales signs immediately adjacent to highways. Am. Compl. [Dkt. No. 46] ¶¶ 9-10; Pl.'s Reply in Supp. of Its Mot. for Partial Summ. J. [Dkt. No. 65] 2. For most of BTA's 30-year history, its posting of real estate sales signs met with little resistance. Although the Virginia Department of Transportation ("VDOT")[1] would remove signs "once or twice a year," BTA never received any fines. Tyburski Deck ¶¶ 4-5.

         Beginning in April 2012, VDOT notified BTA that its signs were violating section 33.2-1224 of the Virginia Code, which prohibits posting signs or advertisements "within the limits of any highway." BTA's SJ Br. 4. VDOT's enforcement efforts were soon joined by those of the Board, which in March 2013 signed a cooperative agreement with the Commissioner to enforce section 33.2-1224.[2] Tyburski Deck ¶ 13; see Am. Compl. Ex. B [Dkt. No. 46-2] ("Enforcement Agreement"). VDOT and the Board enjoy concurrent authority: VDOT is responsible for all roads in the County, see Commissioner of Highway's Memo, in Opp'n to Pl.'s Mot. for Summ. J. [Dkt. No. 63] ("Comm'r's SJ Opp'n") 2-3, and the Board enforces section 33.2-1224 on designated roads in Fairfax County through its Illegal Sign Removal Program, BTA's SJ Br. 5; id Ex. C [Dkt. No. 56-3].

         In the first three years of the Illegal Sign Removal Program, the County collected signs believed to be in violation of the statute but issued no fines. Memo, in Supp. of Defs. Board of Supervisors and Fairfax County's Mot. to Dismiss Am. Compl. [Dkt. No. 50] ("Cty. Defs.' MTD Memo.") 2; BTA's SJ Br. 5. The enforcement strategy changed when the Department of Code Compliance ("DCC") began assisting with enforcement efforts.[3] From March to October 2016, the Board fined BTA at least 89 times. BTA's SJ Br. 5. BTA, considered to be an "egregious violator[]" of section 33.2-1224, see Cty. Defs.' MTD Memo. 2, accounted for a sizable portion of the Board's efforts. For example, from May until October 2016, approximately 21% of all fines issued by the Board went to BTA. BTA's SJ Br. 5; id Ex. F [Dkt. No. 56-6].

         In December 2016, the Board sued BTA in Fairfax County Circuit Court for payment of outstanding fines and to enjoin BTA from placing more signs along County highways.[4] BTA's SJ Br. 5. BTA filed a counterclaim in the state court proceeding, raising First and Fourteenth Amendment claims against the Board under 42 U.S.C. § 1983. It also attempted to add the Commissioner through a third-party complaint but was unsuccessful. Memo, in Supp. of Defs.' Mot. to Dismiss [Dkt. No. 53] ("Comm'r's MTD Memo.") 2. BTA took a nonsuit on its counterclaim before trial in September 2017.[5] Id. After BTA initiated this civil action, the parties agreed to ask the state court to stay that proceeding, and that request was granted. See Pl.'s Consolidated Opp'n to the Defs.' Mots, to Dismiss [Dkt. No. 25] 7-8.

         B. Statutory Scheme

         Virginia has long regulated signs near highways "to promote the safety, convenience and enjoyment of travel..., to attract tourists and promote the prosperity, economic well-being and general welfare of the State, and to preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas." Act of Apr. 1, 1970, ch. 322, § 33.1-351, 1970 Va. Acts 459, 555 (codified as amended at Va. Code Ann. § 33.2-1200(A)). Chapter 12, Article 1 of Title 33.2 of the Virginia Code ("Article 1") governs "the erection and maintenance of outdoor advertising in areas adjacent to the rights-of-way of the highways within the Commonwealth." Va. Code Ann. § 33.2-1200(A). Most of Article 1 addresses signs "visible from" highways. See, e.g., id. § 33.2-1205 (establishing a licensing system for advertisements "visible from the main traveled way" of any highway); id § 33.2-1208 (establishing a similar permitting system). One provision of Article 1 is narrower: Section 33.2-1224 ("Highway Signs Statute") generally prohibits placing any signs "within the limits of a highway:

Any person who in any manner (i) paints, prints, places, puts, or affixes any sign or advertisement upon or to any rock, stone, tree, fence, stump, pole, mile-board, milestone, danger-sign, guide-sign, guidepost, highway sign, historical marker, building, or other object lawfully within the limits of any highway or (ii) erects, paints, prints, places, puts, or affixes any sign or advertisement within the limits of any highway is subject to a civil penalty .... Signs or advertisements placed within the limits of the highway are hereby declared a public and private nuisance and may be forthwith removed, obliterated, or abated by the Commissioner of Highways or his representatives without notice.... In addition, the Commissioner of Highways or his representative may seek to enjoin any recurring violator of this section. The Commissioner of Highways may enter into agreements with any local governing body authorizing local law-enforcement agencies or other local governmental entities to act as agents of the Commissioner of Highways for the purpose of (i) enforcing the provisions of this section and (ii) collecting the penalties and costs provided for in this section....

Va. Code Ann. § 33.2-1224.

         At issue in this litigation is the interaction between the Highway Signs Statute and section 33.2-1204 ("Exceptions Statute"). The Exceptions Statute exempts certain categories of signs from some of the provisions in Article 1. The exempt signs range from those "relating solely to farm produce, merchandise, service, or entertainment" to those "warning the public against hunting, fishing, or trespassing" to those "advertising only the name, time, and place of bona fide agricultural, county, district, or state fairs." Va. Code Ann. § 33.2-1204(2), (14), (17).

         In April 2018, the Virginia General Assembly amended the Exceptions Statute. See Act of Apr. 6, 2018, 2018 Va. Laws ch. 794. The amendment changed the statute in two ways. It first made explicit that the types of signs described in the Exceptions Statute were not exempt from the broad prohibition in the Highway Signs Statute unless specifically noted. It then identified six types of signs that are exempt from the Highway Signs Statute (identified as "§ 33.2-1224").

         As amended, the Exceptions Statute provides:

The following signs and advertisements, if securely attached to real property or advertising structures, and the advertising structures or parts thereof upon which they are posted or displayed are excepted from all the provisions of [Article 1 ] except those enumerated in ... [§] 33.2-1224 ...:
5. Notwithstanding the provisions of § 33.2-1224, danger or precautionary signs relating to the premises or signs warning of the condition of or dangers of travel on a highway erected or authorized by the Commissioner of Highways; forest fire warning signs erected under authority of the State Forester; and signs, notices, or symbols erected by the United States government under the direction of the U.S. Forest Service;
6. Notwithstanding the provisions of § 33.2-1224, notices of any telephone company, telegraph company, railroad, bridges, ferries, or other transportation company necessary in the discretion of the Commissioner of Highways for the safety of the public or for the direction of the public to such utility or to any place to be reached by it;
12. Notwithstanding the provisions of § 33.2-1224, historical markers erected by duly constituted and authorized public authorities;
13. Notwithstanding the provisions of § 33.2-1224, highway markers and signs erected or caused to be erected by the Commissioner of Highways or the Board or other authorities in accordance with law;
15. Notwithstanding the provisions of § 33.2-1224, signs erected by Red Cross authorities relating to Red Cross Emergency Stations, with authority hereby expressly given for the erection and maintenance of such signs upon the right-of-way of all highways in the Commonwealth at such locations as may be approved by the Commissioner of Highways;
19. Notwithstanding the provisions of § 33.2-1224, signs containing advertisements or notices that have been authorized by a county and that are securely affixed to a public transit passenger shelter that is owned by that county, provided that no advertisement shall be placed within the right-of-way of the Interstate System, National Highway System, or federal-aid primary system of highways in violation of federal law....

Va. Code Ann. §33.2-1204.

         C. Procedural History

         BTA filed its initial complaint in October 2017 and filed an Amended Complaint on February 9, 2018 [Dkt. No. 46]. The Amended Complaint alleges multiple violations of BTA's constitutional rights, including that the Commonwealth's statutory scheme for regulating signs near highways violates the First Amendment, is unconstitutionally vague, and has been selectively enforced against BTA. Count I of the Amended Complaint seeks declaratory relief; Count II seeks damages, injunctive relief, attorney's fees, and costs under 42 U.S.C. §§ 1983 and 1988.

         Both the County Defendants and the Commissioner have moved to dismiss the Amended Complaint, and BTA has moved for partial summary judgment and for preliminary or permanent injunctive relief. The Court heard oral argument on the parties' motions and required supplemental briefing on the effect of the April 2018 amendment to the Exceptions Statute in October 2018. That briefing has been provided.

         II. ANALYSIS

         A. Standards of Review

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, an action must be dismissed if the court lacks subject matter jurisdiction. The plaintiff, as the party asserting jurisdiction, bears the ultimate burden of proving such jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If "a complaint simply fails to allege facts upon which subject matter jurisdiction can be based[, ] ... all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id. But in the event of a factual dispute over the jurisdictional allegations in the complaint, the court may consider evidence outside the complaint "without converting the proceeding to one for summary judgment." Id.

         A complaint should be dismissed under Rule 12(b)(6) if it "fail[s] to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 570). The Court must "assume the facts alleged in the complaint are true and draw all reasonable factual inferences in [the plaintiffs] favor," Burbach Broad. Co. of Del, v. Elkins Radio Corp.. 278 F.3d 401, 406 (4th Cir. 2002), but only to the extent those allegations pertain to facts rather than legal conclusions. See Iqbal, 556 U.S. at 678-79.

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material only if it "might affect the outcome of the suit under the governing law," Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (citation omitted), and a dispute is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Although the evidence, and the inferences drawn therefrom, must be viewed in the light most favorable to the nonmovant, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

         A preliminary injunction "is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council Inc.. 555 U.S. 7, 24 (2008). To be entitled to such a remedy, plaintiff must show that it is likely to succeed on the merits, that it will likely suffer irreparable harm absent an injunction, that the balance of hardships weighs in its favor, and that an injunction is in the public interest. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Although plaintiff must "make a 'clear showing' that [it is] likely to succeed at trial, ... [it] need not show a certainty of success." Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013) (citation omitted). And even if this showing is made, "whether to grant the injunction still remains in the 'equitable discretion' of the court." Christopher Phelps & Assoc. LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007). A similar standard governs permanent injunctions, for which the movant must show (i) "that it has suffered an irreparable injury"; (ii) "that remedies available at law, such as monetary damages, are inadequate to compensate for that injury"; (iii) "that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted"; and (iv) "that the public interest would not be disserved by a permanent injunction." Boston Correll v. Herring, 212 F.Supp.3d 584, 615 (E.D. Va. 2016) (quoting eBay Inc. v. MercExchange, L.L.C.. 547 U.S. 388, 391 (2006)).

         The heart of this action is BTA's claim that the Highway Signs Statute and Exceptions Statute (collectively, the "Sign Statutes") violate its First Amendment right to free speech. Before the Court can reach that claim, it must first resolve several antecedent issues raised by defendants in their motions to dismiss.

         B. State Sovereign Immunity

         The Commissioner first moves for dismissal of this action based on a claim of state sovereign immunity. Generally, absent a state's waiver or a valid abrogation by Congress, "federal courts may not entertain a private person's suit against a State." Id. at 253-54. This immunity covers not only the state itself but also "arm[s] of the State." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). Moreover, because a state official sued in his official capacity stands in for the entity he represents, he is equally entitled to assert that entity's sovereign immunity from suit. See Kentucky v. Graham, 473 U.S. 159, 167 (1985).

         State sovereign immunity is not absolute. As relevant here, the doctrine recognized in Ex parte Young, 209 U.S. 123 (1908), provides that "private citizens may sue state officials in their official capacities in federal court to obtain prospective relief from ongoing violations of federal law." Allen v. Cooper, 895 F.3d 337, 354 (4th Cir. 2018). When a state official is sued solely for prospective relief in an official capacity, he "loses 'the cloak' of State immunity." Id. (quoting Bragg v. W.Va. Coal Ass'n. 248 F.3d 275, 292 (4th Cir. 2001)). Regardless of how a claim is styled, courts must ask whether the claim seeks prospective relief that will "govern[] the official's future conduct" or instead seeks "retroactive monetary relief." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984); see Verizon Md.. Inc. v. Pub. Serv. Comm'n of Md.. 535 U.S. 635, 645 (2002) (describing the inquiry as whether a plaintiffs complaint "alleges an ongoing violation of federal law and seeks relief properly characterized as prospective" (citation omitted)).

         BTA has conceded that it is not seeking any monetary relief, retroactive or otherwise, from the Commissioner. Pl.'s Opp'n to Commissioner of Highway's Mot. to Dismiss [Dkt. No. 59] ("BTA's Opp'n to Comm'r's MTD") 5 n.2. Instead, "[i]t seeks to have this Court declare that the Sign Statutes are unconstitutional and to enjoin the Commissioner ... from violating federal constitutional law." Id. at 6. What BTA wants, in essence, is to change how the Commissioner enforces the Sign Statutes going forward. This is the essence of an Ex parte Young action. Accordingly, the Commissioner's immunity argument fails.

         C. Liability Under § 1983

         1. The ...


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