                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                       FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                 September 6, 2006
                                No. 05-12531                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                      D. C. Docket No. 03-61404-CV-PAS

GRANITE STATE OUTDOOR ADVERTISING, INC.,


                                                               Plaintiff-Appellant,

                                     versus

CITY OF FORT LAUDERDALE, FLORIDA,

                                                              Defendant-Appellee.


                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                              (September 6, 2006)


Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Granite State Outdoor Advertising, Inc., appeals the dismissal of its
complaint that alleged the sign ordinance of the City of Fort Lauderdale violates

the First Amendment of the United States Constitution. Ft. Lauderdale, Fla., Sign

Requirements §§ 47-22.1 to 47.22-11 [hereinafter “Sign Ordinance]. The district

court dismissed the complaint for lack of standing to challenge any provisions of

the sign ordinance except one. See id. § 47-22.11(E). That provision, section 47-

22.11(E), banned all outdoor advertising billboards, and the district court dismissed

the complaint for failure to allege any facts to establish that section 47-22.11(E)

was unconstitutional. We affirm.

                                 I. BACKGROUND

      On June 30, 2003, Granite State submitted nine sign permit applications to

the City of Fort Lauderdale. The plans examiner of the City denied the

applications the same day because the City does not permit “outdoor advertising

display signs and billboards” under its sign ordinance. See id. § 47-22.11(E). The

sign ordinance defines “outdoor advertising display” as

      [a]n off-premises detached outdoor advertising sign consisting of
      fabricated sign and structure, with posters, pictures, trademark,
      reading matter, illuminated device, panels, etc., thereon intended to
      attract the attention of the public to the matter displayed thereon for
      advertising purposes; such outdoor advertising display sign being
      commonly referred to as a billboard, poster board, display board, or
      outdoor advertising board.

Id. § 47-22.11(A). The sign ordinance prohibits any “[o]utdoor advertising display



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signs and billboards” within the city limits. Id. § 47-22.11(E)(1).

      On July 24, 2003, Granite State filed a thirteen-count complaint to challenge

the constitutionality of the sign ordinance, both facially and as applied. The

district court ruled that Granite State lacked standing to challenge any provision of

the sign ordinance except the provision upon which Granite State was denied a

permit, section 47-22.11(E). The district court then ruled that section 47-22.11(E)

was not unconstitutional and dismissed the complaint.

      To support its argument that it had standing to challenge the entire sign

ordinance, Granite State relied heavily on Tanner Adver. Group, L.L.C. v. Fayette

County, 411 F.3d 1272, vacated 429 F.3d 1012 (11th Cir. 2005). We vacated the

panel decision in Tanner and issued a new opinion en banc. Tanner Adver. Group,

L.L.C. v. Fayette County, 451 F.3d 777 (11th Cir. 2006) (en banc). We then

ordered the parties to submit supplemental briefs regarding the standing issue in

the light of our recent decisions in Tanner and CAMP Legal Def. Fund, Inc. v. City

of Atlanta, 451 F.3d 1257 (11th Cir. 2006).

      In its supplemental brief, Granite State challenges several provisions of the

ordinance as either grants of unbridled discretion to city officials or

unconstitutional prior restraints of speech. Granite State alleges the ordinance

grants city officials unbridled discretion because it lacks procedural safeguards to



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limit the amount of time the City may take to grant or deny a sign permit and to

provide a mechanism for judicial review of a denied sign permit application.

Granite State also alleges that numerous provisions grant unbridled discretion to

City officials to permit the posting of banners at its discretion and determine which

flags are approved by the ordinance, Sign Ordinance § 47-22.3(C); decide which

events it will sponsor or co-sponsor, id. § 47-22.3(C)(1)-(2); determine whether a

flag is the authentic flag of a nation, state, or city, id. § 47-22.3(C)(5); determine

which events are patriotic, memorial, or celebratory in nature, id. § 47-22.3(C)(6);

decide what companies are public service companies and which of their signs aid

service or safety, id. § 47-22.7(A)(3); determine which signs are primarily

decorative and associated with national, local, or religious holidays, id. § 47-

22.7(A)(4); determine which institutions are medical, public, charitable, or

religious, id. § 47-22.7(A)(8); determine which signs are public signs and what

messages constitute public notice, id. § 47-22.7(A)(12) & (13); determine which

organizations are recognized religious orders or historical agencies, id. § 47-

22.7(A)(14); determine which signs are exempt from regulation because they

convey a warning, id. § 47-22.7(A)(16); allow the City to remove non-complying

signs, id. § 47-22.6(H); waive landscaping designs for outdoor signs or approve

any landscaping plans for outdoor signs, id. § 47-22.11(D); determine which signs



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are architecturally compatible with the principle structure, id. § 47-22.3(J)(11);

determine which graphics and words are prohibited on message centers because

they are similar to signage used for traffic direction and control, id. § 47-

22.3(J)(12); subject “supergraphics signs” to additional review and approval

procedures that do not contain time limits or objective standards, id. § 47-22.3(T);

determine which signs are appropriate in relation to other signs and structures on

the premises and surrounding areas and which signs are consistent with the intent

and purpose of the Sign Ordinance, id. § 47-22.3(T)(1); determine what sign

content can be comprehended by the viewer and what constitutes visual clutter, id.

§ 47-22.3(T)(2); determine whether the size, style, and location of the signs are

appropriate to the message and whether the signs complement the building and

adjacent buildings, id. § 47-22.3(T)(3) & (4); review all signs proposed for the H-1

district of the city, id. § 47-22.4(C)(11); and allow government entities to post

public service messages unrelated to the premises on message center signs with

messages that the City determines are of a public service nature or related to

cultural or educational activities, id. § 47-22.3(J)(13). Finally, Granite State

alleges that it has standing to challenge several provisions of the ordinance that are

prior restraints: the exemptions for flags, government signs, holiday decorations,

public signs, and government pennants, id. § 47-22.7(A); and restrictions on the



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duration, size, and content of political signs, id. § 47-22.5.

                            II. STANDARD OF REVIEW

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

Inlet, 405 F.3d 964, 975 (11th Cir. 2005). “We review a district court’s grant of a

motion to dismiss de novo, takings as true the facts as they are alleged in the

complaint.” Owens v. Samkle Automotive Inc., 425 F.3d 1318, 1320 (11th Cir.

2005).

                                   III. DISCUSSION

         The complexion of this appeal has been altered dramatically by the order

that vacated the panel decision in Tanner. 429 F.3d 1012. Before that order was

entered, Granite State framed its appeal based on the erroneous notion that the

denial of its applications for sign permits enabled it to challenge, under the

overbreadth doctrine, any provision of the Sign Ordinance as a violation of the

First Amendment. As the district court concluded, this argument is foreclosed by

our decision in Granite State Outdoor Advertising v. City of Clearwater, 351 F.3d

1112, 1119 (11th Cir. 2003), as we recently explained in CAMP, 451 F.3d at

1270–73. As a result of the final decisions in Tanner and CAMP, the arguments of

Granite State now collapse.

         Granite State argues that it has standing to challenge two kinds of provisions



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of the Sign Ordinance. Granite State argues that it has standing to challenge all

provisions of the Sign Ordinance that grant the City unbridled discretion. Granite

State also argues that it has standing to challenge sections 47-22.5 and 47-22.7(A)

as unconstitutional prior restraints on speech. The problem for Granite State is that

it did not allege in its complaint that it intended to engage in any form of

expression governed by these provisions of the Sign Ordinance. Granite State does

not appeal the conclusion of the district court that section 47.22-11(E), which bans

outdoor advertising, is constitutional, and Granite State does not challenge the

conclusion of the district court thtat all of its permits involved only outdoor

advertising. We address each argument of Granite State in turn.

       A. Granite State Does Not Have Standing to Challenge the Provisions
          of the Sign Ordinance That Allegedly Grant the City Unbridled
                                  Discretion.

      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, and being denied, a license.” CAMP, 451 F.3d

at 1274 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-

56, 108 S. Ct. 2138, 2143 (1988)). The problem for Granite State is that it is not

subject to the permitting requirements of the sign ordinance. Sign Ordinance § 47-



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22.9. Granite State is ineligible for a permit to construct its proposed signs

because the sign ordinance bans categorically all outdoor advertising displays. The

district court upheld that ban, and Granite State does not challenge that decision on

appeal. City officials have no discretion to permit or deny the billboard

applications submitted by Granite State.

      Granite State also does not have standing to challenge the other provisions

of the sign ordinance that it alleges grant unbridled discretion, see Sign Ordinance

§§ 47-22.3(C)(1), (2), (5), (6), -22.7(A)(3), (4), (8), (12), (13), (14), (16), -22.6(H),

-22.11(D), -22.3(J)(11), (12), (13), -22.3(T)(1), (2), (3), (4), -22.4(C)(11), -

22.7(A), -22.5, because Granite State has not established that its outdoor

advertising displays are governed by these provisions. Granite State is not subject

to these provisions because outdoor advertising displays are categorically

prohibited. The district court did not err when it denied Granite State standing to

challenge these provisions.

       B. Granite State Does Not Have Standing to Challenge Alleged Prior
                   Restraints That Do Not Affect Granite State.

      Granite State cannot establish standing for either of the two prior restraints it

challenges on appeal. To establish standing to challenge prior restraints, a party

must establish “that either (1) [it was] threatened with prosecution; (2) prosecution

is likely; or (3) there is a credible threat of prosecution.” Id. at 2651 (quoting Doe

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v. Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003)). “In 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.’” Id. (quoting City of

Lakewood, 486 U.S. at 755-56, 108 S. Ct. at 2143). To survive a motion to

dismiss, Granite State has the burden to allege constitutional “injury resulting from

the defendant’s conduct.” Id. at 2645 (quoting Lujan v. Defenders of Wildlife, 504

U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992)). Granite State does not allege facts

that establish standing to challenge either of the allegedly unconstitutional prior

restraints.

       Granite State challenges the provision that regulates political campaign

signs, Sign Ordinance § 47-22.5, on the ground that “there is a definite danger the

City could apply its deficient political sign restrictions to Granite . . . .” Granite

State fails to explain how the regulation of political campaign signs under section

47-22.5 pertains to its activity of outdoor advertising, which is categorically

prohibited by the Sign Ordinance, without regard to content. Granite State has not

alleged any facts to establish that it would be subject to prosecution under this

provision and does not have standing to challenge the restrictions on political

signs. See CAMP, 451 F.3d at 1276 (denying standing to challenge commercial

fees on the ground that party was not a commercial entity).



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      Granite State also lacks standing to challenge the provision of the sign

ordinance that exempts flags, government signs, holiday decorations, public signs,

and government pennants from the restrictions of the ordinance. Sign Ordinance §

47-22.7(A). The injury that Granite State suffered from being denied a permit

under the categorical ban on billboards would not be redressed by a challenge to

this provision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct.

2130, 2136 (1992). Granite State was injured because it was not permitted to erect

billboards. Sign Ordinance § 47-22.11(E). If the exemptions that it challenges

were struck from the statute as unconstitutional, Granite State still would not be

able to erect a billboard. “[T]here 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). Granite State does not have standing

because it cannot establish that its injury will be redressed by a favorable decision.

                                 IV. CONCLUSION

      The dismissal of the complaint is

      AFFIRMED.




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