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Adams Outdoor Advertising Limited Partnership v. Pennsylvania Department of Transportation

United States Court of Appeals, Third Circuit

July 15, 2019

ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, a Limited Partnership Organized Under the Laws of the State of Minnesota, by its Managing General Partner, Adams Outdoor GP, LLC, Appellant
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; LESLIE RICHARDS, Individually and in her capacity as Secretary of Transportation, Acting as the Chief Executive Officer of the Pennsylvania Department of Transportation

          Argued March 5, 2019

          Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-17-cv-01253) District Judge: Honorable Joseph F. Leeson

          Victor F. Cavacini (Argued) Gross McGinley Counsel for Appellant

          Josh Shapiro Attorney General Claudia M. Tesoro (Argued) Senior Deputy Attorney General J. Bart DeLone Chief Deputy Attorney General Office of Attorney General Counsel for Appellee

          Before: SMITH, Chief Judge, AMBRO, and RESTREPO, Circuit Judges



         Adams Outdoor Advertising, L.P., wants to install a billboard near an interchange on U.S. Route 22 in Hanover Township, Pennsylvania. Adams sought a permit from the Pennsylvania Department of Transportation ("PennDOT"), but it denied the permit under a provision of Pennsylvania law that prohibits "off premise" billboards within 500 feet of a highway interchange. Adams contends that provision-called the "Interchange Prohibition"-violates the First Amendment because it is too vague or, alternatively, because it does not survive First Amendment scrutiny. Adams also claims that PennDOT's permitting requirement for highway billboards separately violates the First Amendment because there is no time limit for its decisions on applications.

         The District Court ruled in Adams' favor on the time-limit claim and entered an injunction barring the enforcement of the permit requirement until PennDOT establishes reasonable time limits on its permit decisions. It dismissed, however, Adams' vagueness challenge on the pleadings and entered summary judgment against Adams on its First Amendment scrutiny challenge.

         We affirm in part and reverse in part. As to the former, we join the District Court in concluding that PennDOT's permit requirement violates the First Amendment because it lacks a reasonable time limit for permit determinations, and thus sustain the injunction. Further, we affirm the Court's dismissal of Adams' vagueness challenge because the Interchange Prohibition communicates clearly what it prohibits. But we cannot sustain its entry of summary judgment in favor of PennDOT Secretary Richards on Adams' challenge to the scrutiny required to assess the Interchange Prohibition. Although we conclude the Prohibition is not subject to strict scrutiny, the record is insufficient to establish the required reasoning for the prohibition. We thus reverse on that claim and remand for further proceedings.

         I. Background

         A. Statutory Background

         The Highway Beautification Act of 1965, 23 U.S.C. § 131, establishes a framework for federal-state agreements governing the size, lighting, and spacing of outdoor advertising signs (colloquially, "billboards") near highways. States that do not enter into and comply with their federal-state agreements under the Beautification Act lose certain funds for highway programs. See 23 U.S.C. § 131(b).

         Pennsylvania meets its obligations under the Beautification Act through the Pennsylvania Outdoor Advertising Control Act of 1971, 36 Pa. Stat. §§ 2718.101- .115. PennDOT administers the Act through its Secretary, defendant-appellee Leslie Richards. 36 Pa. Stat. § 2718.106.

         Two aspects of the Act are relevant in this appeal. First, its Interchange Prohibition bars the installation of any billboard within 500 feet of an "interchange" or "safety rest area" unless the billboard is an "official" or "on premise" sign as defined in 23 U.S.C. § 131(c). See 36 Pa. Stat. § 2718.105(c)(2)(i), (iv). Second, the Act sets up a permitting regime requiring persons to obtain permits from either PennDOT or a PennDOT-authorized entity to install billboards regulated by the former. See 36 Pa. Stat. § 2718.107. The Act does not establish a time limit to decide permit applications.

         B. Facts and Procedural History

         Adams is a company that acquires or leases private land to install and maintain outdoor advertising signs as a medium of communication by the public. It receives the customer's desired message, secures permits, and installs the message on a sign. All the signs Adams installs are "off premise" signs- that is, they communicate a message concerning neither the specific property where the sign is displayed nor the business or activities that occur there. An example of an "off premise" sign would be one advertising a law firm, ...

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