                                                                        FILED
                          NOT FOR PUBLICATION
                                                                         NOV 09 2015
                   UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JEFFREY R. HERSON,                             No. 12-17102

             Plaintiff - Appellant,            D.C. No. 3:11-cv-00633-LRH-
                                               WGC
 v.

CITY OF RENO,                                  MEMORANDUM*

             Defendant - Appellee,

  And

STATE OF NEVADA,

             Defendant.

BROOKLYN PATRIOTS OF LOS                       No. 13-15420
ANGELES, INC.,
                                               D.C. No. 3:11-cv-00659-LRH-
             Plaintiff - Appellant,            WGC

 v.

CITY OF RENO,

             Defendant - Appellee.




        *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                      Argued and Submitted October 22, 2015
                            San Francisco, California

Before: REINHARDT and HAWKINS, Circuit Judges and MOLLOY,** Senior
District Judge.

      The plaintiffs in these cases, Jeffrey Herson and Brooklyn Patriots of Los

Angeles (“BPLA”), are both in the business of erecting billboards in the City of Reno

(“the City”). Each filed suit to challenge Reno Municipal Code (“RMC”) sections

regulating the placement of signs within the City as unconstitutional under the First

Amendment.      After the district court separately dismissed both actions on

jurisdictional grounds for lack of standing, both plaintiffs appealed. Presenting near-

identical facts and claims, the cases were consolidated for oral argument and are

disposed of together herein. This court has jurisdiction pursuant to 28 U.S.C. § 1291,

and affirms.

      Herson and BPLA allege that each intended to lease out for-profit portions of

space on their billboards to display others’ “off-premises” commercial speech, or

speech “promoting the commercial interests” of an entity whose goods or services are

“not principally sold, available or otherwise provided on the premises on which the


        **
           The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
                                          2
display is located.” RMC § 18.24.203.4560.23. Plaintiffs planned to use the

remaining space to display their own non-commercial messages, or those of others.

The City’s Sign Code requires that all persons who wish to erect signs first obtain sign

permits.   RMC § 18.16.202.       In addition, the City requires that all for-profit

enterprises in the city obtain a general business license. RMC §§ 4.04.007; 4.04.020;

4.04.150. The parties do not dispute that neither Herson nor BPLA at any point

applied for or obtained business licenses or sign permits.

      Rather than apply for business licenses or sign permits, or erect their billboards

without authorization, Herson and BPLA brought facial and as-applied challenges to

the City’s Sign Code. Plaintiffs allege that certain provisions of the Sign Code are

impermissibly content-based; offer greater protection to commercial than to non-

commercial speech; and grant unbridled discretion to City sign permit and variance

decision makers by failing to impose sufficiently specific criteria, time constraints,

and explanation requirements.

      The district court dismissed these claims on the basis that, absent any effort to

apply for business licenses, Herson and BPLA fail to demonstrate the injury,

causation, and redressability necessary for standing in federal court.        Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992); Get Outdoors II, LLC v. City of San

Diego, 506 F.3d 886, 891 (9th Cir. 2007).



                                           3
      We agree, and reject their attempt, raised for the first time on appeal, to mount

a facial challenge to the City’s business license requirement. First, Herson and BPLA

have likely waived any challenge to the City’s business license requirement because

they did not sufficiently include such a challenge in their respective complaints.

Moreover, the plaintiffs did not address the City’s arguments regarding the business

license requirement in their respective oppositions to the City’s motion to dismiss for

lack of standing. See Walsh v. Nevada Dep’t of Human Resources, 471 F.3d 1033,

1037 (9th Cir. 2006) (“Issues not presented to a district court generally cannot be

heard on appeal.”).

      Second, even if, as the plaintiffs argue, their complaints could be read as

challenging both the business license requirement and the Sign Code, and if we were

to overlook their failure to address the argument in their oppositions, they would lack

standing for a facial challenge to the business license requirement. Generally

applicable licensing requirements are not susceptible to a facial challenge absent

demonstration of a clear nexus between the licensing scheme and First Amendment-

protected expressive activity, such that the disputed regulations “pose a real and

substantial threat of the identified censorship risks.” City of Lakewood v. Plain Dealer

Pub. Co., 486 U.S. 750, 759 (1988). The City’s business license requirement—a

requirement that applies to all for-profit businesses operating in the City—has no such

nexus to expressive activity. Because neither plaintiff possesses a business license,

                                           4
each lacks standing to bring a facial challenge to the City’s Sign Code, as any relief

that this court might offer as to the Sign Code would not redress their alleged injury.

See Get Outdoors II, 506 F.3d at 894-95.

      AFFIRMED.




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