Land Use and Local Government Law and Litigation

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11th: Whoops, Standing to Challenge any Part of Sign Ordinance Gives Standing to Challenge Overbreadth of All Parts

A panel of the 11th receeded from? over-ruled? the earlier Granite State v. City of Clearwater holding, and confirms that a plaintiff who has standing to challenge one part of a sign ordinance can challenge any other part on overbreadth grounds.

The case is Tanner Advertising Group v. Fayette County, GA, and here's the link. It's important because it allowed Tanner to attack the ordinance as a whole, when the off-site regulation section (that prevented Tanner from getting permits for the billboards it wanted) had been upheld as a valid time/place/manner regulation. By getting to go beyond that section and attack the rest of the ordinance's regulation of signs as a whole (which included significant restrictions on on-premises signs and political and other signs on residential property), Tanner had a claim (albeit untested) for enjoining enforcement of the whole ordinance.

What's interesting is that this panel over-ruled another panel's Clearwater holding, which said that the sign company in that case could attack only those portions of the ordinance that directly affected it. This panel essentially said that the earlier case was non-binding becaue it was inconsistent with earlier decisions. Here's the relevant section:

In light of the strong precedent from the Supreme Court and this Circuit
concerning the doctrine of overbreadth which preceded the Clearwater decision,
we are compelled to follow our “prior precedent” or “earliest case” rule and uphold our decisions preceding Clearwater and disregard the narrow approach to the overbreadth doctrine employed by the Clearwater court. The prior precedent rule dictates that:
A prior panel decision of this Court is binding on subsequent panels and can be overturned only by the Court sitting en banc. . . . When faced with an intra-circuit split we must apply the “earliest case” rule, . . . a panel should look to the line of authority containing the earliest case, because a decision of a prior panel cannot be overturned by a later panel.
Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003) (citations and quotation marks omitted). Because this Court sitting en banc has not overruled St. Petersburg, Dimmitt, National, and Solomon, and because they came before the Clearwater decision, we hold that Tanner has standing to make a facial challenge to the Ordinance as a whole.

Interesting case for 1st amendment and local government lawyers, important case for folks doing lots of appellate work in front of the 11th Circuit.

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