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Burritt v. New York State Dep't of Transportation

December 18, 2008


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief. He contends that New York State Highway Law Sections 86 and 88, and their enforcement regulations, 17 NYCRR Part 150 (collectively "Sign Laws"), violate his right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. He moves for a preliminary injunction preventing the State of New York from enforcing the Sign Laws relative to a sign on his property until the Court resolves his application for a permanent injunction.*fn1 Defendants have cross-moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6). See Def. Mot. Dismiss [dkt. 9].


a. 12(b)(6)

A motion brought under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims pleaded in a case. On a motion to dismiss, all factual allegations in the complaint are accepted as true, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), and the Court must determine whether Plaintiff has pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). As such, the Court must determine whether the "[f]actual allegations . . . raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id., at 1965; see Barkley v. Olympia Mortgage Co., 2007 WL 2437810, at * 9 (E.D.N.Y. Aug. 22, 2007). An action that could not survive a Fed. R. Civ. P. 12(b)(6) motion could not, a fortiori, satisfy the preliminary injunction standard (discussed infra). Conversely, an action in which it is determined that the plaintiff is entitled to a preliminary injunction could not be dismissed en toto pursuant to Fed. R. Civ. P. 12(b)(6).

b. Preliminary Injunction

A preliminary injunction may be issued provided that the moving party demonstrates (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d Cir. 2007) (quotation marks and citations omitted)

The Supreme Court has declared that "the loss of First Amendment freedoms, for even minimal periods of time, constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). "[W]hen an alleged deprivation of a constitutional right is involved, . . . no further showing of irreparable injury is necessary." Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Thus, the dispute on the preliminary injunction motion is whether Plaintiff can satisfy the second prong on the preliminary injunction standard. While a factual hearing is generally required on an application for a preliminary injunction, no hearing is required where material issues are not in dispute. Maryland Casualty Co. v. Realty Advisory Board on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997).


Plaintiff Daniel W. Burritt owns property at 658 U.S. Highway 11, Gouverneur, New York, on which he owns and operates a bridge building business named "Acts II Construction, Inc.: Building Bridges for Jesus." Burritt is a devout Christian who "believes he has a religious duty to communicate the truth about Jesus Christ through all aspects of his life, including his work. He regularly shares the Gospel of Jesus Christ to persons he encounters through work, at his office and in the field, and in his personal life." Compl. ¶ 8. Burritt submitted an affidavit and exhibits that demonstrate that he uses his business, and the advertising and community presence from that business, to engage in extensive evangelization of his Christian beliefs. Burrit Aff. & Ex. A [dkt. # 14].

Burritt owns a trailer (from a tractor-trailer combination) that he uses for storage for his business at the 658 U.S. Highway 11 location. He painted several messages on the trailer that covered almost the entirety of three sides of the trailer. Looking at the tractor trailer from the front, the left side reads: "Your Way or God's Way? Jesus Said 'I Am the Way the Truth and the Life, No Man Comes to the Father Except by Me.' Will You Spend Eternity with Jesus?". Compl. ¶ 11. The right side reads: "Sin Has Separated You From God. All Have Sinned and Fall Short of the Glory of God. The Blood of Jesus Cleanses Us from All Sin. Are You Washed in the Blood?". Id. On the front side, Burritt painted a picture of a cross with the words underneath the cross: "It Is Finished." Id.

In August of 2007, Burritt placed the trailer on his property on the edge of Route 11 perpendicular to the road with the front facing the road. Id. ¶ 12. On May 19, 2008, Burritt received a letter from the Real Estate Division of the New York State Department of Transportation ( "NYSDOT"), Region Seven in Watertown, New York. Id. ¶ 13. The letter was from Defendant Robin Disbro. Disbro is a Real Estate Specialist for the New York State Department of Transportation in its Region Seven office in Watertown, New York. Id.*fn3

The letter informed Burritt that the trailer encroached 12 feet into the public right of way (which extends 60 feet from the center line of this two-lane road) and had to be moved back 12 feet within 30 days. Compl. Ex. A. Second, it informed Burritt that N.Y.S. Route 11 is a "controlled route" for outdoor advertising controlled under the Sign Laws and declared that "if you elect to move this sign out of the State highway right of way on to your own property in this location, you will need to obtain an outdoor advertising permit from the New York State Department of Transportation." Id. Third, it noted that, pursuant to 17 NYCRR Part 150.6(d), only one sign that exceeds 325 square feet can be visible from a given direction. Id.

According to the letter, the trailer was classified in Defendant's records as an "illegal sign" because it was an "off-premises" sign that had not been registered, and advised that illegal signs are considered public nuisances and "subject to removal in 30 days." Id. The letter further indicated that the NYSDOT would forward the matter to the Attorney General's Office "if the sign is not removed or brought into compliance with the outdoor advertising regulations." Id. Finally, the letter included an outdoor advertising permit application and provided some information on completing the application, including the requirement to submit "a copy of the local municipal approval to erect this sign." Id.

After receipt of this letter, Burritt moved his trailer back the requisite 12 feet out of the State highway right-of-way and removed one of the sides of the trailer sign so that multiple sides were no longer visible from any one direction. Compl. ¶ 31.*fn4 A series of correspondence between Burritt's counsel and the NYSDOT followed with Burritt's counsel seeking clarification regarding the sign laws implicated in this matter. See Compl. Exhibits B-E.

In a letter dated June 4, 2008, the NYSDOT specified the following regarding the registration/permit requirements:

[C]ertain signs along these controlled routes [including Route 11] are allowed without a permit (such as official signs, on-premise signs and for sale signs) while other signs are permitted subject to the controlling criteria set forth in the laws and regulations and while other signs are prohibited. An on-premise sign for purposes of the regulations is described in 17 NYCRR Part 150.1(dd) as "On-premises sign means . . . a sign advertising activities conducted on the property on which it is located, and which conforms to the provisions of section 150.13 of this Part."

The sign located on Mr. Burritt's property does not meet the criteria of an on-premise sign . . . . The sign on Mr. Burritt's property is therefore subject to . . . the registration provisions of 17 NYCRR Part 150.15. . . . In the event that the sign is not removed or brought into compliance, the Department will forward this matter to the New York State Attorney ...

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