                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-2083



COVENANT MEDIA OF SOUTH CAROLINA, LLC,

                Plaintiff - Appellant,

           v.

TOWN OF SURFSIDE BEACH,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:05-cv-02029-TLW)


Argued:   January 27, 2009                 Decided:    April 2, 2009


Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edward Adam Webb, WEBB LAW GROUP, L.L.C., Atlanta, Georgia, for
Appellant.    Andrew Lindemann, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Covenant    Media,        Inc.,   appeals   from    the        district    court’s

rejection of its action challenging the constitutionality of the

Town of Surfside Beach’s sign ordinance.                 Finding no error that

warrants reversal, we affirm the district court’s order granting

summary judgment in favor of the Town.



                                         I.

     Prior to October 2006, 1 the Town had in force an ordinance

that required the issuance of permits before most on- or off-

premises    signs    could     be   constructed.        Broadly       speaking,       the

ordinance     treated         all   off-premises        signs        as     billboards.

Billboards    could      be     placed   only    on     vacant       lots    within     a

designated area (in a “C-1 highway commercial” zoning district).

There could be only one billboard per vacant lot, and no more

than 12 billboards could be located within the Town limits.                           The

ordinance     also       established         various         size     and      set-back

restrictions.

     According      to   the    allegations      of    its    complaint,       Covenant

submitted a complete sign application package to the Town on

     1
        The Town enacted a new                  sign ordinance that became
effective on October 24, 2006.                  No issue regarding the new
ordinance is before this court.




                                         2
December    2,    2004,       but   the   Town     never      responded        to   the

application.     Although the Town contends that it never actually

received the 2004 application, we will assume, in light of the

procedural posture of this case, that Covenant did in fact file

the permit application with the Town and that the Town failed to

act on the application.

      Covenant did not contact the Town to check on the status of

its application, but instead commenced this action in July 2005.

Covenant claimed that the ordinance was unconstitutional because

it   impermissibly     favored      commercial    speech      over     noncommercial

speech,    did   not   provide      a   time    limit   for     acting    on    permit

applications, and did not set forth its purpose, as required by

the Supreme Court in Central Hudson Gas & Electric Corp. v.

Public Service Commission, 447 U.S. 557 (1980).

      In   October     2005    (after     the    filing    of    its     complaint),

Covenant submitted nine more applications for billboards.                           The

2005 sign applications did not comply with the requirements of

the sign ordinance – for example, the proposed signs would have

violated the setback requirements, would have been located on

lots that already contained a permitted sign, and would have

exceeded the limit of 12 billboards inside Town limits.                             The

Town therefore denied all of the 2005 applications.                      During the

course of this litigation, Covenant provided the Town with a

copy of the 2004 application.             The Town submitted an affidavit

                                          3
stating    that   it   would     have   denied       the    2004   application     for

largely the same reasons that it denied the 2005 applications.

      The district court granted summary judgment in favor of the

Town, concluding that the 2004 sign application would have been

denied     because     it   did     not       comply       with    constitutionally

unobjectionable portions of the ordinance and that Covenant thus

lacked     standing    to      challenge       the     handling      of    the     2004

application. 2     This appeal followed.



                                        II.

      On appeal, Covenant first contends that the district court

erred by concluding that it lacked standing.                  We agree.

      The jurisdiction of federal courts extends only to actual

cases and controversies.          See U.S. Const., art. III, § 2, cl. 1.

“A justiciable case or controversy requires a plaintiff who has

alleged such a personal stake in the outcome of the controversy

as to warrant his invocation of federal court jurisdiction and

to   justify     exercise   of    the     court’s      remedial     powers    on   his

behalf.”     White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458

(4th Cir. 2005) (internal quotation marks omitted).                       A plaintiff

      2
       Covenant did not amend its complaint to include claims
challenging the denial of the 2005 applications, and the
district court’s order considered Covenant’s claims with regard
to the 2004 application only. We likewise limit our analysis to
the 2004 application.



                                          4
has   standing   –    that    is,    a    sufficient     personal      stake    in    the

controversy – if the plaintiff can show an “injury in fact,” a

“causal connection between the injury and the conduct complained

of,” and “a likelihood that the injury will be redressed by a

favorable decision.”          Covenant Media of South Carolina, LLC v.

City of North Charleston, 493 F.3d 421, 428 (4th Cir. 2007)

(internal quotation marks omitted).

      Our    decision    in    Covenant          Media   controls      the     standing

question.     As in Covenant Media, Covenant here was injured by a

delay in the processing of its permit application, an injury

that Covenant contends was caused by a constitutional defect in

the Town’s ordinance.          If we were to accept Covenant’s argument

in that regard, the injury would at least be redressable by an

award of nominal damages.                Covenant therefore has standing to

pursue its claim.       See id. at 428-29.



                                          III.

      Although   the     district        court     erred   in    determining         that

Covenant     lacked     standing,          we     nonetheless       conclude         that

Covenant’s    claims    fail    on       the    merits   and    that   the     district

court therefore properly granted summary judgment to the Town.

See Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“It is well

accepted . . . that without filing a cross-appeal or cross-

petition, an appellee may rely upon any matter appearing in the

                                           5
record in support of the judgment below.”); Covenant Media, 493

F.3d at 430-31.

                                            A.

      As to Covenant’s facial challenges to the ordinance, see

id. at 431 (considering both facial and as-applied challenges

after determining that Covenant had standing), Covenant first

argues that the ordinance violates the First Amendment because

the ordinance itself does not include a clause setting forth the

purposes      the     ordinance    was     intended    to     serve.        See    Central

Hudson,    447        U.S.   at    564     (holding     that     a     restriction        on

commercial          speech    must        directly     advance         a     substantial

governmental interest).            This court, however, has never required

that a challenged ordinance include an explicit declaration of

the underlying governmental purposes, nor do we believe that

such a requirement is implicit in the Central Hudson standard.

Cf.   Bolger     v.    Youngs     Drug    Prods.     Corp.,    463   U.S.     60,    70-71

(1983) (“The Appellants do not purport to rely on justifications

for the statute offered during the 19th Century.                           Instead, they

advance interests that concededly were not asserted when the

prohibition was enacted into law.                  This reliance is permissible

since   the    insufficiency         of    the   original      motivation         does   not

diminish other interests that the restriction may now serve.”

(footnotes omitted)).             The absence of an explicit statement of

purpose in the billboard ordinance therefore does not render the

                                             6
ordinance invalid under Central Hudson.                         Moreover, the purposes

asserted by the Town – promoting traffic safety and aesthetics –

are     substantial       governmental            interests       that        are     directly

advanced by the ordinance.                   See Georgia Outdoor Advertising,

Inc. v. City of Waynesville, 833 F.2d 43, 46 (4th Cir. 1987)

(“It requires neither elaboration nor citation to say that an

ordinance      regulating        billboards         is     likely        to    advance       the

objective of enhancing the beauty of a city, and that no less

intrusive        method        would     adequately             protect        the        city’s

interest.”).

        Covenant        also      contends          that         the      ordinance          is

unconstitutional because it does not require the Town to act on

a permit application within a specified time.                            See Freedman v.

Maryland, 380 U.S. 51, 58-59 (1965).                            In Covenant Media, we

found    North     Charleston’s        ordinance      to    be    content-neutral           and

thus     not     subject        to     the        Freedman        procedural-safeguard

requirements.           See    Covenant      Media,       493     F.3d    at       435.      The

ordinance at issue here is in all relevant respects functionally

identical to the ordinance in Covenant Media, and we likewise

conclude that the ordinance is content-neutral and thus need not

include    the     decision-making           timeframe       required         by     Freedman.

Accordingly,       we    reject      Covenant’s          facial    challenges         to    the

ordinance.



                                              7
                                         B.

      Finally, we consider Covenant’s as-applied challenge, which

is based on the Town’s delay in processing the December 2004

permit     application.       Although          we    have    concluded    that   the

ordinance was not required to contain the procedural safeguards

set out in Freedman, “a decisionmaker cannot use the absence of

such requirements to stifle free expression.”                     Covenant Media,

493 F.3d at 435.          Accordingly, we must determine whether the

Town “applied the absence of time limitations in [the ordinance]

in such a manner to stifle Covenant’s First Amendment rights.”

Id.

      As   we   explained     in    Covenant         Media,   Covenant     must   show

conduct beyond mere negligence in order to establish a violation

of its First Amendment rights.                  See id. at 436.      Despite being

on notice that the Town was seeking summary judgment on the

merits of its claims and having an opportunity to engage in

discovery, Covenant has presented no evidence that the Town’s

actions     were   anything        beyond       negligence.       “Thus,      because

negligent conduct is not enough to support a First Amendment

claim against government officials, the absence of anything but

negligence      proves   fatal     to   Covenant’s       as-applied       challenge.”

Id. at 437.




                                            8
                                   IV.

    Although we disagree with the district court’s conclusion

that Covenant lacked standing to assert its challenges to the

ordinance,   we   nonetheless   conclude   that   Covenant’s   challenges

fail on the merits.     Accordingly, we hereby affirm the district

court’s grant of summary judgment in favor of the Town.



                                                                 AFFIRMED




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