# B& G Opa Holdings, Inc. v. Daughtrey

> District Court, S.D. Florida · September 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10118073

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** September 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-23269-CIV-GAYLES/MCALILEY

B&G OPA HOLDINGS, INC., et al.,

Plaintiffs,

vs.

CITY OF OPA-LOCKA, FLORIDA, et al.,

Defendants.
____________________________________/

REPORT AND RECOMMENDATIONS
ON MOTIONS FOR SUMMARY JUDGMENT
Plaintiffs and Defendant City of Opa-locka, Florida1 each filed a motion for
summary judgment,2 which the Honorable Darrin P. Gayles referred to me for a report and
recommendation. (ECF Nos. 34, 68, 80). Both Motions are fully briefed. (ECF Nos. 85,
87, 93, 94). I noticed a hearing on the Motions to discuss with counsel questions I have
about the remedies Plaintiffs seek. Defense counsel was experiencing a family health
emergency and for that reason, I cancelled the hearing. (ECF No. 106). I chose to proceed

1 A second defendant was named in the lawsuit, but dismissed with prejudice pursuant to a
stipulation of the parties. (ECF Nos. 54, 62).
2 Plaintiffs’ motion is titled a motion for partial summary judgment. However, two claims for
which Plaintiffs do not seek summary judgment, Counts X and XI, have been dismissed by the
Court, (ECF Nos. 67, 98), and Plaintiffs previously dismissed Count IV, (ECF No. 54). Plaintiffs
seek summary judgment on all remaining claims in their Second Amended Complaint, thereby
making Plaintiffs’ motion one for full summary judgment on all remaining counts.
with this Report and Recommendation that is limited to issues of liability.3 After carefully
considering the parties’ memoranda of law, the pertinent portions of the record and the

applicable law, for the reasons set forth below, I recommend that the Court grant both
Motions in part.
I. BACKGROUND4
Plaintiff B&G Opa Holdings, LLC owns and previously operated “Klub 24,” a
restaurant and lounge that served alcohol and featured nude dancing 24-hours a day; it also
owns the associated business licenses. (ECF No. 69 at ¶¶ 1-2). Klub 24 is located in the

City of Opa-locka’s I-2 industrial district. (ECF No. 69 at ¶ 5). Plaintiff B&G Opa Land
Holdings, LLC owns the building and real property where Klub 24 is located. (Id. at ¶ 1).5
Beginning in 2015, before leasing, and later purchasing, the property for Klub 24, B&G’s
representatives met with City officials to discuss applicable zoning restrictions and the
necessary applications to open its business. (Id. at 6; ECF No. 81 at ¶ 10; ECF No. 86 at ¶

10).
A. The Code
Section 22-81 of the City’s Land Development Code (the “Code”) permits adult
businesses in the City’s I-2 zoning area, so long as the City grants a special exception. It

3 If the Court adopts this Report and Recommendation, I believe the parties will be well-positioned
to engage in mediation and resolve the remaining disputes between them. If this is not possible, I
will direct further briefing on the issues of remedies. I intend to address these subjects with counsel
at a status conference, once the Court rules on this Report and Recommendation.
4 Unless otherwise noted, the facts set forth herein are taken from the parties’ respective Statements
of Undisputed Material Facts.
5 The Court refers to both Plaintiffs as “B&G” and will refer to B&G in the singular.
also permits adult businesses in the City’s I-3 zoning area, subject to requirements that they
be located at prescribed distances from places of worship, schools, parks etc. (ECF No. 81

at ¶¶ 12-13; SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART.
III at § 22-81, Permitted Uses Table – Industrial Districts).
The special exception process is set out in Section 22-60 of the Code. A special
exception will be granted if recommended by the City’s Planning Council and approved
by the City Commission. Both the Council and the Commission must make their decision
guided by these criteria:

1. Compliance with the City’s Comprehensive Plan.
2. Consistent with the “character and purpose” of the zoning district.
3. The size, shape and character of the property are suited for the proposed use.
4. Compatibility with the existing uses near the property.
5. Will not adversely affect the development of the general neighborhood or district.
6. Will not generate vehicular traffic or create vehicular circulation or ingress/egress
problems or parking demands that have an unfavorable impact on surrounding
properties when compared with uses permitted by right in the same district.
7. Potential for fire and/or other equally or greater dangerous hazards.
8. Create an unfavorable environment impacts [sic] on surrounding uses (e.g. noise,
glare, smoke, dust, odor, fumes, water pollution, or general nuisance).
9. Consistent with existing and planned pedestrian and vehicular circulation
adjacent to and near the property.
10. Site is adequately served by essential public services and facilities not requiring
additional public expense in infrastructure improvements.
11. Will not adversely affect any site or feature of historical, cultural, natural or
scenic importance.
12. Will not be contrary to the public health, safety, and welfare, provided that a
denial based exclusively on this language shall include explicitly findings regarding
the way in which granting the special exception would be contrary to the public
health, safety and welfare.
(ECF No. 82-16 at 2-3, SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT
REGULATIONS, ART. III at § 22-60 B.).
The City’s Planning Department must determine whether a special exception

application is complete within 45 days of its submission. (ECF No. 82-14 at 2, Code at Art.
IIII, § 22-49 D.). Once complete, the Planning Council then provides its recommendation
to the City Commission, and the application is placed on the next available regular City
Commission meeting agenda. (ECF No. 82-16, Code at Art. III, § 22-60 D.; ECF No. 82-
14, Code, § 22-49 G.). The City Commission must then hold a public hearing to either deny
or approve the special exception application, or approve it subject to conditions. (ECF No.

82-16, Code at Art. III, § 22-60 E.). The Code does not provide a deadline for the Planning
Council to issue its recommendation, nor for the City Commission to make its decision.
In addition to limiting adult businesses to the I-2 or I-3 zoning areas, at the time of
the events that gave rise to this lawsuit, Section 22-136 of the Code provided that “adult
entertainment uses” are considered “regulated uses,”6 which “shall be permitted only

within the Transit Corridor zoning district.” (ECF No. 82-27 at 3-4, Code at Art. V, § 22-
136(C), (E)). The City, however, did not then, and does not now, have a Transit Corridor
Zoning District, and thus no land in Opa-locka was located in a transit corridor. (ECF No.
86 at ¶ 78; ECF No. 68-18 at 7:22-8:3, 9:1-15). After B&G filed suit – in fact, just a week
before B&G filed its Motion – on February 12, 2020, the City revised Section 22-136 to

6 Section 22-136 excludes from the definition of regulated uses a variety of institutions, such as
“art galleries”, “arts and cultural performance theaters and playhouses” and “professional
photography and portrait studios which may use nude subject for their photographs or portraits”.
(ECF No. 82-27 at 3-4, Code at Art. V, § 22-136 (D)).
remove the Transit Corridor requirement, declaring that this was a scrivener’s error. (ECF
No. 82-28).

B. B&G’s Applications and Licenses
Beginning in late 2015, City officials knew that B&G’s proposed business included
adult entertainment. (ECF No. 69 at ¶ 8). By early 2017, B&G met with the City Attorney
and the planning and zoning staff, and discussed that B&G, in its applications, would use
the term “playhouse”, that featured a restaurant and bar, to describe B&G’s proposed
business. (Id. at ¶¶ 9-10).

On January 4, 2017, B&G submitted a zoning verification form and application for
certification of use which identified the proposed use of its property as “tavern, bar,
playhouse.” (ECF No. 69 at ¶ 10; ECF No. 81 at ¶ 20). City staff completed portions of
these applications to reflect that Planning Council and City Commission approval was
required for adult entertainment in the I-2 zoning district. (ECF Nos. 82-18, 82-19). Also

on January 4, 2017, B&G submitted an application for an occupational license which
identified the business as “tavern, bar, playhouse,” but also included the phrase “other” and
had the words “adult entertainment” crossed out.7 (ECF No. 82-17). That same day, the
City issued B&G a certificate of use and an occupational license to engage in the business
of “other clubs.” (ECF No. 82-21; ECF No. 82-6 at ¶ 14).

7 As discussed infra, the parties dispute whether B&G’s representative or a City official crossed
out the phrase “adult entertainment,” and dispute whether B&G’s representative wrote the term
“playhouse” in the description of intended use based upon the advice of City officials. s
The next day, a City license clerk wrote to B&G that the license category “other”
includes “the description as written in the approval application for certificate of use,

playhouse, bar, tavern approved adult entertainment [sic].” (ECF No. 82-22) (emphasis
added). The City maintains that the license clerk did not have the authority to issue this
letter. The license clerk, however, states that she did so at the direction of the former City
Manager. (ECF No. 86 at ¶ 63). On January 6, 2017, the Director of the City’s Planning &
Community Development Department advised B&G that its “proposal to operate a
playhouse/cabaret…has been determine[d] to be interpreted as an adult business. A special

exception process is required for properties zoned I-2 to determine if the adult business
proposal would be allowed under certain conditions.” (ECF No. 82-23). The Director
repeated this information in correspondence to B&G in July 2017. (ECF No. 82-25). B&G
did not apply for nor receive a special exception. (ECF No. 81 at ¶¶ 28, 46).
C. B&G’s Short-Lived Operation of Klub 24

After purchasing and completing renovations to the property, on January 17, 2018
B&G applied for and received a Temporary Certificate of Occupancy, which identified the
use and occupancy as “[r]emodeling for existing restaurant lounge/cabaret.” (ECF No. 69
at ¶ 18; ECF No. 82-33). The next day, Klub 24 opened for business. (ECF No. 69 at ¶ 23).
The Temporary Certificate of Occupancy gave B&G until April 20, 2018 to “comply

with…all ordinances or building codes of the City of Opa-locka, the Florida Building Code,
and all other ordinances and laws applicable pertaining to the erection, construction,
alteration, remodeling [sic] or use of buildings or structures.” (ECF No. 82-33).
In addition to the building that housed Klub 24, the property also had a sign
structure. (ECF No. 81 at ¶ 35; ECF No. 88 at ¶¶ 35-37). Article X of the Code regulates

signs and requires sign permits. (SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT
REGULATIONS, ART. X). B&G displayed a digital sign at the property, but did not obtain a
permit. ECF No. 81 at ¶ 35; ECF No. 88 at ¶¶ 35-37).
On January 24, 2018 and March 28, 2018, the City Commission held public
hearings to discuss B&G’s operation of Klub 24. (ECF No. 81 at ¶ 42; ECF Nos. 82-34,
82-35). At the second hearing, the Commission passed a resolution “authoriz[ing] the

closure of Klub 24 and direct[ing] the City Manager to do all that is necessary to ensure
the closure of Klub 24 until it is in full compliance with all State, County and Municipal
laws and ordinances.” (the “Resolution”). (ECF No. 82-35 at 10, 12). Shortly thereafter,
on April 3, 2018, City officials met with B&G’s representatives including its attorneys.
The parties dispute what took place at that meeting, and its purpose. (ECF No. 81 at ¶ 42;

ECF No. 88 at ¶ 42).
Ten days later, on April 13, 2018, the City Manager issued a cease and desist letter
that ordered B&G to “cease and desist all operations until a business license is properly
obtained.” (ECF No. 82-37). The City Manager provided two justifications: (1) B&G’s
license “was obtained by misrepresentation of material facts and therefore, by operation of

law, [B&G] is operating in the City of Opa-locka (“City”) without a license” and (2) B&G’s
“Adult Entertainment Business, known as Klub 24, is in violation of Section 22-81 of the
City’s Land Development Regulations for failing to obtain a special exception to operate
in the I-2 Zone.” (Id.). That same day, law enforcement officers served the cease and desist
order on B&G and directed them to close Klub 24. (ECF No. 69 at ¶ 28). B&G complied,
and Klub 24 has remained closed. (Id. at ¶ 30). Three days after closure of Klub 24, B&G

filed a lawsuit against the City for declaratory and injunctive relief, in the Circuit Court for
Miami-Dade County (Case No. 2018-011909-CA-01). (ECF No. 81 at ¶ 44). That lawsuit
was dismissed for lack of prosecution on September 3, 2020.
D. This Action
The operative pleading is the Second Amended Complaint (“SAC”). (ECF No. 46).
B&G seeks declaratory and injunctive relief, and damages, for the City’s alleged violations

of B&G’s rights under the First Amendment and Due Process Clause of the United States
Constitution. B&G later dismissed Count IV, (ECF No. 54), and the City filed a Motion to
Dismiss the remaining claims. (ECF No. 55). The Court granted the Motion to Dismiss in
part, and dismissed Count X without prejudice and XI with prejudice. (ECF Nos. 67, 98).
B&G did not thereafter amend its complaint. Thus, Counts I, II, III, V, VI, VII and VIII of

the SAC are at issue.8 They allege the following:
Count I: Sections 22-81 and 22-136 of the Code fail to provide sufficient
locations where adult businesses may operate as a matter of right, in violation
of the First Amendment. (ECF No. 46 at ¶¶ 66-81).

Count II: Section 22-60 of the Code, which requires certain businesses
located in the I-2 zone to obtain a special exception, is an unconstitutional
prior restraint in violation of the First Amendment. (Id. at ¶¶ 82-96).

Count III: the City violated B&G’s due process rights by closing Klub 24
and revoking B&G’s licenses and permits without advance notice and an
opportunity to be heard. (Id. at ¶¶ 97-122).

8 The City filed an Answer and Affirmative Defenses, (ECF No. 101), which, because of
scheduling deadlines that were set well before, took place after the Motions for Summary
Judgment were fully briefed.
Count V: the Resolution is an impermissible content-based law that imposed
an unlawful prior restraint on B&G’s First Amendment right to freedom of
expression. (Id. at ¶¶ 138-178).

Count VI: the term “adult business” in the Code is unconstitutionally vague
and overbroad. (Id. at ¶¶ 147-153).

Count VII: the terms “sexual conduct,” “caressing or fondling” and
“simulation thereof,” in section 4-16 of the City’s Code of Ordinances, are
unconstitutionally vague or overbroad. (Id. at ¶¶ at 154-162).

Count VIII: the City’s Sign Code violates the First Amendment because it
regulates on the basis of content and imposes an unconstitutional prior
restraint. (Id. at ¶¶ at 163-197).

Both parties ask the Court to enter summary judgment on their behalf on all claims.
II. ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, depositions, and affidavits
submitted by the parties show that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “An issue is
‘genuine’ when a reasonable trier of fact, viewing all of the record evidence, could
rationally find in favor of the nonmoving party in light of his burden of proof.” See Picardat
v. City of Miami, No. 15-cv-24305-GAYLES, 2017 WL 1251897 at * 1 (S.D. Fla. April 5,
2017) (citing Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)). A material fact
is one that, under the applicable law, might affect the outcome of the case. See Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986) (emphasis in original). A genuine dispute of material fact exists “when there is

sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict
in its favor.” Jessup v. Miami-Dade County, 440 Fed. App’x. 689, 691 (11th Cir. 2011)
(quotation marks and citation omitted).
The moving party bears the initial burden of showing the absence of a genuine issue
of material fact. United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys.
in State of Ala., 941 F.2d 1428, 1437 (11th Cir. 1991) (citation omitted). The moving party

must show that, “on all the essential elements of its case on which it bears the burden of
proof at trial, no reasonable jury could find for the nonmoving party.” Id. at 1438. “If the
moving party makes such an affirmative showing, it is entitled to summary judgment unless
the nonmoving party, in response, comes forward with significant, probative evidence
demonstrating the existence of a triable issue of fact.” Id. (quotation marks and citations

omitted); see also Ray v. Equifax Info. Servs., L.L.C., 327 Fed. App’x 819, 825 (11th Cir.
2009) (once the moving party satisfies its burden, “the non-moving party must make a
sufficient showing on each essential element of the case for which he has the burden of
proof.”) (quotation marks and citation omitted).
When the nonmoving party bears the burden of proof at trial, the moving party can

show either “that there is an absence of evidence to support the nonmoving party’s case”
or support its motion “with affirmative evidence demonstrating that the nonmoving party
will be unable to prove its case at trial.” Four Parcels of Real Prop. in Greene &
Tuscaloosa Ctys. in State of Ala., 941 F.2d at 1438 (citation omitted). “If the moving party
shows the absence of a triable issue by either method, the burden on summary judgment
shifts to the nonmoving party, who must show that a genuine issue remains for trial.” Id.

at 1438 (citations omitted). “If the nonmoving party fails to make a sufficient showing on
an essential element of [its] case with respect to which [it] has the burden of proof, the
moving party is entitled to summary judgment.” Id. (quotation marks and citation omitted).
The Court must view the evidence and all reasonable factual inferences therefrom
in the light most favorable to the nonmoving party. Ray, 327 Fed. App’x at 825. In order
to defeat summary judgment, “the nonmoving party must do more than simply show that

there is some metaphysical doubt as to the material facts,” id. at 825, and “must offer more
than a mere scintilla of evidence for its position....” Picardat, 2017 WL 1251897 at *1
(citation omitted). “If no reasonable jury could return a verdict in favor of the nonmoving
party, there is no genuine issue of material fact and summary judgment will be granted.”
Sada v. City of Altamonte Springs, 434 Fed. App’x 845, 847 (11th Cir. 2011) (citation

omitted).
With these requirements in mind, I turn to each disputed claim.
B. B&G is Entitled to Summary Judgment on Count I
B&G argues that the Code’s provisions regarding adult businesses violated the First
Amendment because the Code failed to provide adequate sites where those businesses can

operate. (ECF No. 68 at 3-7).
Section 22-81 of the Code provides that adult businesses can locate in the City’s I-
3 zone as a matter of right, or in the City’s I-2 zone if a special exception is obtained. See
SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART. III at § 22-81.
That Section of the Code must be read in conjunction with Section 22-136, which is titled
“Regulations of Adult Entertainment Establishments”, Id. at Art. V, § 22-136, and refers

to adult entertainment as “regulated uses.” Id. at § 22-136 (C). Section 22-136 (E) mandates
that regulated uses be located no closer than prescribed distances from certain places, such
as schools, public parks and places of worship and, at the time of the events that gave rise
to this lawsuit, further required that regulated uses be located in the Transit Corridor zoning
district. Id. at § 22-136 (E) (“Regulated uses shall be permitted only within the Transit
Corridor zoning district.”). As noted, well after this lawsuit was filed, the City revised

Section 22-136 (E) to remove the Transit Corridor requirement. (ECF No. 82-28).
In City of Renton v. Playtime Theatres, Inc., the Supreme Court held that a zoning
ordinance that restricts the location of adult entertainment establishments must be
“designed to serve a substantial governmental interest and allow for reasonable alternative
avenues of communication.” 475 U.S. 41, 50 (1986). Here, the parties do not dispute that

the challenged sections of the Code serve a substantial governmental interest. They do
dispute, however, whether there were sufficient available sites in the City where adult
businesses could locate – which is what the Court meant by “reasonable alternative avenues
of communication”. This is a question of law.9 “The [City] bears the burden of proffering
the number of sites which are legal for adult businesses under the challenged regulations;

the burden then shifts to Plaintiffs to establish that any of them are disqualified.” University

9 “Whether the sites available for adult businesses under a zoning ordinance provide reasonable
avenues for communicating these businesses’ erotic message is a question of law.” Fly Fish, Inc.
v. City of Cocoa Beach, 337 F.3d 1301, 1309 (11th Cir. 2003) (citation omitted).
Books and Videos, Inc. v. Miami-Dade County, 132 F.Supp.2d 1008, 1013-14 (S.D. Fla.
2001) (citations omitted).

The City contends that “there are at least 27 parcels in the City’s I-3 zoning area
where adult businesses may locate as a matter of right.” (ECF No. 80 at 7). The problem
with the City’s argument is that none of those parcels were in the Transit Corridor because,
as the City acknowledges, it “has no Transit Corridor Zoning District.” (ECF No. 86 at ¶
78).10
Faced with these undisputed facts, the City asks the Court to disregard the Transit

Corridor requirement because (1) it was “a scrivener’s error” and (2) the City did not rely
upon the Transit Corridor requirement in any communications with B&G. (ECF No. 92 at
2). I cannot agree. First, the City offers no evidence that the Transit Corridor requirement
was a “scrivener’s error”, other than the conclusory resolution that that says so. (ECF No.
82-28). This self-serving statement, alone, would not support a reasonable jury concluding

that the Transit Corridor requirement was indeed a scrivener’s error.
Second, even if the City did not rely upon the Transit Corridor requirement, it was
a provision of the Code when B&G sought to open Klub 24. The City’s argument that the
recent revision of Section 22-136 (E) renders Count I moot is without merit. (ECF No. 92
at 2). The fact that the Code today does not contain the Transit Corridor requirement does

10 The City’s expert conceded that he found no parcels within the City that were in a transit
corridor. (ECF No. 68-18 at 8:1-3, 9:1-15).
not absolve the City of liability, as the parties were bound by the Code as it was written at
the time.

Given the complete absence of land in the Transit Corridor Zoning District, it is an
undisputed material fact that, at the time B&G opened Klub 24, the City had no sites where
an adult business was entitled to operate. A zoning ordinance that “effectively zone[s]” an
adult business “out of existence” is unconstitutional under the First Amendment. Fly Fish,
337 F.3d at 1312.
For the foregoing reasons, I conclude that section 22-136 of the City’s Land

Development Regulations, as written prior to its February 2020 revision, was
unconstitutional because it failed to provide sufficient alternative avenues of
communication for adult businesses. Accordingly, B&G is entitled to summary judgment
as to liability on Count I.
C. B&G is Entitled to Summary Judgment on Count II

Section 22-81 of the Code requires that certain businesses, including adult
businesses, obtain a special exception in order to locate in the City’s I-2 zone, and Section
22-60 of the Code sets out that process. B&G contends that the special exception
requirement is an unconstitutional prior restraint on First Amendment protected activity.
(ECF No. 68 at 7-11). “[A] law subjecting the exercise of First Amendment freedoms to the

prior restraint of a license, without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional.” Shuttlesworth v. City of Birmingham, Ala., 394
U.S. 147, 150-51 (1969). The special exception requirement here is the equivalent of a
license, something the parties do not dispute. See Lady J. Lingerie, Inc. v. City of
Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999) (“…to operate in the CCG-2 zone, an
adult entertainment establishment must apply for an exception. This makes an exception

the equivalent of a license.”).
Although a prior restraint is “not unconstitutional per se,” it “comes to this Court
bearing a heavy presumption against its constitutional validity.” FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 225 (1990) (citations omitted). The Court identified “two evils” that
will not be tolerated in a licensing scheme. Id. at 225. The first is a scheme that gives
government officials “unbridled discretion.” Id. at 225-26 (citations omitted). Second is a

scheme that “fails to place limits on the time within which the decisionmaker must issue
the license….” FW/PBS, Inc., 4937 U.S. at 226. The special exception provisions found in
Section 22-60 of the Opa-locka Code fail on both counts.
Regarding the “evil” of unbridled discretion, the Supreme Court explained, “[i]t is
settled by a long line of recent decisions of this Court that an ordinance which … makes

the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the
uncontrolled will of an official—as by requiring a permit or license which may be granted
or withheld in the discretion of such official—is an unconstitutional censorship or prior
restraint upon the enjoyment of those freedoms.” Shuttlesworth, 394 U.S. at 151.
“[V]irtually any amount of discretion beyond the merely ministerial is suspect.” Lady J.

Lingerie, 176 F.3d at 1362.
Section 22-60 provides that “[S]pecial Exceptions may be approved by the City
Commission after recommendation from the Planning Council.” SUSTAINABLE 2015 OPA-
LOCKA LAND DEVELOPMENT REGULATIONS, ART. III at § 22-60. Section 22-60 B.
prescribes twelve criteria the Planning Council and City Commission must use “in making
their decision regarding approval or disapproval of a … Special Exception application.”

Id. at § 22-60 B. 1-12. To survive a First Amendment challenge, these criteria “must be
precise and objective”. Lady J. Lingerie, 176 F.3d at 1362 (emphasis in original) (citations
omitted).
The Eleventh Circuit, in Lady J. Lingerie, examined a provision of the Jacksonville
Land Use Code that set out nine criteria the zoning board had to consider in deciding
whether to grant special exceptions. Id. at 1362, 1369. The Court found that “none of the

nine criteria is precise and objective.” Id. at 1362. It stated that “individually and
collectively [they] empower the zoning board to covertly discriminate against adult
entertainment establishments under the guise of general ‘compatibility’ or ‘environmental’
considerations.” Id. Many of the criteria found impermissible in Lady J. Lingerie are
strikingly similar to the criteria in Section 22-60 B. of the Opa-locka Code, as the following

table demonstrates:
Impermissible Criteria in Lady J. Section 22-60 B. of the Opa-locka Code
Will be compatible with the existing Compatibility with the existing uses near
contiguous uses or zoning and compatible the property. (§22-60.B 4.)
with the general character of the area,
considering population density, design, Consistent with the character and purpose
scale and orientation of structures to the of the zoning district. (§22-60 B 2.)
area, property values, and existing similar
uses or zoning. (Jacksonville Land Use
Code at § 656.131(c)(1)(ii)); Lady J.
Lingerie, 176 F.3d at 1369.
Will not have an environmental impact Create an unfavorable environment
inconsistent with the health, safety and impacts [sic] on surrounding uses (e.g.
welfare of the community. (Jacksonville noise, glare, smoke, dust, odor, fumes,
Land Use Code at § 656.131(c)(1)(iii)); water pollution, or general nuisance). (§22-
Lady J. Lingerie, 176 F.3d at 1369 60 B 8.)

Will not result in the creation of
objectionable or excessive noise, lights,
vibrations, fumes, odors, dust or physical
activities, taking into account existing uses
or zoning in the vicinity. (Jacksonville
Land Use Code at § 656.131(c)(1)(vi));
Lady J. Lingerie, 176 F.3d at 1370.
Will be consistent with the Comprehensive Compliance with the City’s
Plan, including any subsequent plan Comprehensive Plan. (§22-60 B 1.)
adopted by the Council pursuant thereto.
(Jacksonville Land Use Code at §
656.131(c)(1)(i)); Lady J. Lingerie, 176
F.3d at 1369.
Will not have a detrimental effect on the Will not adversely affect the development
future development of contiguous of the general neighborhood or district.
properties or the general area, according to (§22-60 B 5.)
the Comprehensive Plan, including any
subsequent amendment to the plan adopted
by the Council. (Jacksonville Land Use
Code at § 656.131(c)(1)(v)); Lady J.
Lingerie, 176 F.3d at 1370.
Will not have a detrimental effect on Will not generate vehicular traffic or create
vehicular or pedestrian traffic, or parking vehicular circulation or ingress/egress
conditions, and will not result in the problems or parking demands that have an
generation or creation of traffic unfavorable impact on surrounding
inconsistent with the health, safety and properties when compared with uses
welfare of the community. (Jacksonville permitted by right in the same district.
Land Use Code at § 656.131(c)(1)(iv)); (§22-60 B 6.)
Lady J. Lingerie, 176 F.3d at 1370.
The Court need not analyze the remaining criteria listed in Section 22-60 B. because the
above-referenced criteria are plainly impermissible under Lady J. Lingerie, and this is
sufficient to render the special exception scheme an unconstitutional prior restraint.
Section 22-60 also suffers from the second “evil” – it “fails to place limits on the
time within which the decisionmaker must issue the license….” FW/PBS, Inc., 4937 U.S.

at 226. The City correctly points out that there is a 45-day deadline to determine if a special
exception application is complete, see Art. III at § 22-49 D., and “[a]ll recommendations
and findings of fact by the Planning Council [must] be placed on the next available regular
City Commission meeting agenda….” Id. at § 22-49 G. There are, however, no deadlines
within which the Planning Council must issue its recommendation, or the City Commission
must make a decision. The City’s “failure to require a deadline for decision renders

[Section 22-60] unconstitutional.” Lady J. Lingerie, 176 F.3d at 1363 (Jacksonville
ordinance an unconstitutional prior restraint because it required zoning board to “hold a
public hearing within 63 days after a business applies for an exception…[b]ut nothing
require[d] a decision within 63 days, or any other time period”) (emphasis in original).
For these reasons, I conclude that, with respect to businesses entitled to First

Amendment protection, the special exception requirement set forth in Sections 22-60 of
the City’s Land Development Regulations is an unconstitutional prior restraint.
Accordingly, B&G is entitled to summary judgment on liability on Count II.
D. Neither Party is Entitled to Summary Judgment on Count III
B&G argues that the City violated its procedural due process rights by directing the

closure of Klub 24 and revoking its license without notice or an opportunity to be heard.
(ECF No. 68 at 11-15). In order to prove a procedural due process violation, B&G must
establish three elements: (1) “deprivation of a constitutionally protected liberty or property
interest;” (2) “state action;” and (3) a “constitutionally inadequate process.” Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994).

Regarding the first element, the City argues that B&G does not have a
constitutionally protected property interest in the occupational license because B&G
procured it through misrepresentations. (ECF No. 85 at 7; ECF No. 80 at 9-10).
Specifically, the City contends that B&G misrepresented the intended use of the property
on its applications as a “tavern, bar playhouse,” and submitted an application for an
occupational license that had the phrase “adult entertainment” crossed out. (ECF No. 85 at

7; ECF No. 80 at 9; ECF No. 86 at ¶¶ 59-60). B&G disputes this and contends that the City
knew that B&G intended to operate a nude dancing facility, and that the City Attorney
agreed that B&G classify itself as a playhouse, which eliminated the need to obtain a
special exception. (ECF No. 88 at ¶¶ 15-18). The City denies B&G’s version of events.
(ECF No. 86 at ¶¶ 57-58). B&G also disputes that its representative crossed out the phrase

“adult entertainment”; it contends that the change must have been done by someone in the
City’s licensing department. (ECF No. 88 at ¶ 19). Plainly, there is a genuine dispute of
material fact regarding whether B&G had a constitutionally protected property interest.
There are also disputed material facts regarding the third element – a
constitutionally inadequate process. “Due process entitles an individual to notice and some

form of hearing before state action may finally deprive him or her of a property interest.”
Cryder, 24 F.3d at 177. The City argues that it provided B&G with a predeprivation hearing
on April 3, 2018, ten days before issuance of the cease and desist letter, when the City
Manager, Building Official and City Attorney met with B&G representatives and its
attorney. (ECF No. 80 at 11, ECF No. 81 at ¶ 42). The City characterizes this as a “due
process hearing” where “the City provided B&G with an opportunity to present any

argument and evidence related to the lawfulness of their operation of the adult
entertainment club.” (ECF No. 81 at ¶ 42).
B&G agrees that the meeting took place, but disputes that it was a due process
hearing. (ECF No. 87 at 11-12; ECF No. 88 at ¶ 42). It states the meeting “was just one of
a long series of conferences between the parties which had occurred over the years,” (ECF
No. 88 at ¶ 42), and that the City did not give it notice “that the meeting would address any

issue in particular.” (ECF No. 87 at 11). B&G points to a draft letter from the then-City
Manager as evidence that the April 3rd meeting was not a predeprivation hearing. The City
Manager wrote the letter after April 3rd to notify B&G that the City “has set a date, time
and place for the License Revocation Hearing on this matter.” (ECF No. 68-25).11 Neither
party submitted evidence about what they discussed at the April 3rd meeting.

Whether B&G received a predeprivation hearing is mired in significant factual
disputes that preclude summary judgment on this claim.
The City also argues, alternatively, that B&G has an adequate post-deprivation
remedy, in the form of a lawsuit, that satisfies procedural due process. (ECF No. 80 at 11-
12; ECF No.85 at 9-10). I rejected this argument in my Report and Recommendation on

the City’s Motion to Dismiss Second Amended Complaint, (ECF No. 67 at 9-14), which
the Court adopted, (ECF No. 98). The City offers nothing new to justify its position.

11 The City Manager who prepared the draft letter was thereafter fired, and the letter was not sent.
(ECF No. 68-33 at 81:4-19).
As I noted in my earlier Report and Recommendation, the Supreme Court instructs
that if the state can feasibly provide a predeprivation hearing, it must generally do so

“regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking.”
Zinermon v. Burch, 494 U.S. 113, 132 (1990). Exceptions to this rule exist where there are
exigent circumstances, see e.g., Reams v. Irvin, 561 F.3d 1258, 1264 (11th Cir. 2009), or
“where the deprivation is the result of either a negligent or an intentional deprivation of
property.” Nat’l Ass’n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of
Georgia, 633 F.3d 1297, 1317 (11th Cir. 2011). There is no evidence – or contention – that

any of those exceptions occurred here.
Importantly, the Eleventh Circuit recently rejected the argument the City makes,
reasoning that to hold otherwise would mean “gutting any notions of predeprivation due
process and blanketly holding that a state can effectuate any and all deprivations under a
‘shoot first, ask questions later’ mentality, so long as it offers ex post facto recourse.” Barr

v. Johnson, 777 F. App’x 298, 303 (11th Cir. 2019) (holding that small business owner
stated a procedural due process claim against city and its officials after they forcibly closed
her business, without warning, for not having the required license.). The City makes no
mention of, or attempt to distinguish, Barr, despite the obvious similarities between both
cases.

In sum, summary judgment on Count III is not warranted, given the genuine disputes
of material fact regarding whether a procedural due process violation occurred.
E. The City is Entitled to Summary Judgment on Count V
In Count V, B&G contends that the Resolution is an impermissible content-based

law that imposed an unlawful prior restraint on B&G’s First Amendment right to freedom
of expression. (ECF No. 40, ¶¶ 138-178). The Resolution found that Klub 24 was not in
compliance with various provisions of the Opa-locka Code of Ordinances and directed its
closure.
Content-based laws target speech based upon its communicative content and are
“presumptively unconstitutional.” Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).

As the Supreme Court explained,
Government regulation of speech is content based if a law
applies to particular speech because of the topic discussed or
the idea or message expressed. This commonsense meaning of
the phrase “content based” requires a court to consider whether
a regulation of speech “on its face” draws distinctions based on
the message a speaker conveys. Some facial distinctions based
on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining
regulated speech by its function or purpose. Both are
distinctions drawn based on the message a speaker conveys,
and, therefore, are subject to strict scrutiny.

Id. at 163-64 (citations omitted).
Laws that are facially content neutral will be considered content-based regulations
if they “cannot be justified without reference to the content of the regulated speech” or
“were adopted by the government because of disagreement with the message the speech
conveys.” Id. at 164. (quotation marks and citation omitted). Content-based laws are
subject to strict scrutiny “regardless of the government’s benign motive, content-neutral
justification, or lack of animus toward the ideas contained in the regulated speech.” Id. at
165.

B&G has not carried its burden, on summary judgment, to establish that the
Resolution is a content-based law. B&G argues, in a conclusory fashion, that because the
Resolution shut down its enterprise - which engages in First Amendment protected activity
- that it is an impermissible content-based law.12 B&G does so by selectively identifing
only one provision of the Resolution, and arguing that this makes the Resolution content-
based:

WHEREAS, the City Commission finds that it is in the best
interest of the City that the City Manager take all necessary
steps to revoke Klub 24’s license to operate an adult
entertainment establishment, until it is in full compliance with
all applicable laws and City ordinances.
(ECF No. 87 at 15-16) quoting the Resolution (ECF No. 82-30 at 2). B&G asserts that the
phrase “to operate an adult entertainment establishment” is all the proof needed that the
Resolution is a content-based enactment. (ECF No. 87 at 15-16).
In fact, the Resolution, read as a whole, directs the closure of Klub 24 because it is
not in compliance with a number of provisions of the Opa-locka Code which, important to
a First Amendment analysis, apply to businesses regardless of the message the business
conveys. The Resolution references Sections 22.81 (special exception requirement),

12 Notably, in its Motion for Summary Judgment, B&G makes no substantive argument why the
Court should grant summary judgment in its favor on this Count. (ECF No. 68). It addresses the
merits of Count V only in response to arguments the City raised, and does so in a superficial
manner. (See ECF No. 87 at 15-16; ECF. No. 94 at 5-6).
Section 4-17 (nudity in premises that serve alcoholic beverages) and Section 4-5 (hours for
nightclubs), and references an opinion of the City Attorney that Klub 24 was not permitted

to operate in the City at that time. On this basis, the Commission authorized the closure of
the enterprise, and instructed the City Manager to ensure closure “until it is in full
compliance with all State, County and Municipal laws and ordinances.” (ECF No. 82-30
at 2).
The special exception requirement is not limited to adult entertainment businesses;
it also applies to businesses in the I-2 zone that concern “cement and clay products” and

“shipping container[s],” which do not implicate any First Amendment concerns. See
SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART. IV at § 22-81.
Similarly, the prohibition on total or partial nudity applies to all “alcoholic beverage
establishments” which is defined as “any establishment located in the City of Opa-locka,
Florida at which alcoholic beverages, beer or wine are offered for sale for consumption on

the premises.” See Code of Ordinances, City of Opa-locka, Florida at §§ 4-16(2), 4-17.
This ordinance is equally applicable to a neighborhood bar and grill restaurant as it is to an
adult entertainment business. And Section 4-5 limits the hours that all “nightclubs” can
offer or sell “alcoholic or intoxicating beverages.” See Code of Ordinances, City of Opa-
locka, Florida at § 4-5.

For these reasons, B&G has not shown that the Resolution “cannot be justified
without reference to the content of the regulated speech” or that the Resolution was
“adopted by the government because of disagreement with the message the speech
conveys.” Reed v. Town of Gilbert, Ariz., 576 U.S. at 164. There is nothing on the face of
the Resolution that displays this motive, nor is there any other evidence in the record that
does so. The Resolution authorizes the closure of Klub 24 because it failed to meet

regulatory requirements that apply to businesses irrespective of the message the business
conveys, not because Klub 24 provides adult entertainment.
The City has carried its burden and shown that, based upon the undisputed material
facts, no reasonable jury could conclude that the Resolution was a content-based
enactment. As such, the Resolution did not violate B&G’s First Amendment rights as a
matter of law and the City is entitled to summary judgment on Count V.

F. The City is Entitled to Summary Judgment on Count VI
B&G claims that the definition of “Adult business,” set forth in Section 22-238 of
the Code, is unconstitutionally vague and overbroad. (ECF No. 68 at 17). Section 22-238
defines an “Adult business” as
Any premises within the city where members of the public, or
any person for consideration, are offered any live or recorded
performance, or any visual image tangibly fixed in any
medium, which performance, image, or recording has as its
primary or dominant theme subject matter depicting,
describing, or relating to specified sexual activities or specified
anatomical areas, and which performance, recording, or visual
image requires the exclusion of minors from the premises
pursuant to F.S. ch. 847.”
See SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART. XI at §
22-238 (emphasis added).
To succeed on a claim that an ordinance is void for vagueness, “the complainant
must demonstrate that the law is impermissibly vague in all of its applications.” Stardust,
3007 LLC v. City of Brookhaven, 899 F.3d 1164, 1176 (11th Cir. 2018) (citation omitted)
(emphasis added). “It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). Precision, though, is not required. As the Eleventh Circuit recently
reiterated, “[t]he Constitution does not require perfect clarity in the language of statutes
and ordinances. All due process requires is fair notice sufficient to enable persons of
ordinary intelligence to avoid conduct which the law forbids.” Stardust, 899 F.3d at 1176
(quotation marks and citation omitted); see also Stansberry v. Holmes, 613 F.2d 1285, 1289
(5th Cir. 1980) (“A provision need not, however, be cast in terms that are mathematically

precise; it need only give fair warning of the conduct proscribed, in light of common
understanding and practices.”) (citations omitted).13
B&G argues that the definition of “Adult business” is unconstitutionally vague
because it does not define “specified sexual activities” and “specified anatomical areas.”
(ECF No. 68 at 17). This argument fails to recognize that the definition expressly

references Florida Statutes Chapter 847, which provides the requisite specificity. Florida
Statutes § 847.001 defines the term “specific sexual activities” as follows:
“Specific sexual activities” includes the following sexual
activities and the exhibition of the following anatomical areas:
(a) Human genitals in the state of sexual stimulation or arousal.

13 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit
adopted as binding precedent all decisions handed down by the former Fifth Circuit before October
1, 1981.
(b) Acts of human masturbation, sexual intercourse, sodomy,
cunnilingus, fellatio, or any excretory function, or
representation thereof.
(c) The fondling or erotic touching of human genitals, the pubic
region, the buttocks, or the female breasts
(d) Less than completely and opaquely covered:
1. Human genitals or the pubic region.
2. Buttocks.
3. Female breasts below the top of the areola.
4. Human male genitals in a discernibly turgid state, even if
completely and opaquely covered.
Fla. Stat. § 847.001(20). This definition details the specific “sexual activities” and
“anatomical areas” referenced in the definition of “Adult business” and does so clearly.
Thus, when the definition of “Adult business” is read in conjunction with section
841.007(20), it is “sufficiently specific that a person of ordinary intelligence could
reasonably understand” the conduct to which it applies.14 See Joel v. City of Orlando, 232
F.3d 1353, 1360 (11th Cir. 2000); see also Stansberry, 613 F.2d at 1290 (“The definition,

14 In the SAC, B&G does not seek any relief with respect to the term “playhouses.” (See ECF No.
46 at 37-38). Yet, in its Motion, it briefly argues that the term “playhouses” in Section 22-136(D),
which is an exception to the section regulating “adult entertainment establishments,” is
unconstitutionally vague. (ECF No. 68 at 16). As explained, supra, at Section II (G), B&G cannot
amend its SAC by a summary judgment motion. And even if it had included this claim in the SAC,
it would be without merit. The term is in a phrase that reads “arts and cultural performance theaters
and playhouses” and is in a paragraph that exempts “accredited universities, colleges or other
educational institutions; libraries, art galleries, museums, art exhibits and galleries open to the
public…or commercial professional photography and portrait studios which may use nude subjects
for their photographs or portraits.” See SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT
REGULATIONS, ART. XI at § 22-136(D). When considering the term “playhouses” in this context
and in light of its dictionary meaning as a “theater,” (ECF No. 80 at 15), a reasonable jury would
conclude that it gives “fair warning of the conduct proscribed, in light of common understanding
and practices.” Stansberry, 613 F.2d at 1289.
read as a whole, provides the necessary measure of certainty and is not unconstitutionally
vague.”).

B&G also argues that the definition of “Adult business” is unconstitutionally
overbroad because it “has the potential to apply to a wide variety of conventional or
‘mainstream’ performances….” (ECF No. 68 at 17). An ordinance is “facially invalid under
the First Amendment only if it is “substantially overbroad, that is, its application would be
unconstitutional in a substantial proportion of cases.” Ward v. County of Orange, 217 F.3d
1350, 1355 (11th Cir. 2000) (citation omitted). Overbreadth exists “when lawmakers define

the scope of a statute to reach both unprotected expression as well as, at least potentially,
protected speech.” Id. at1355 (citation omitted). Overbreadth is a “strong medicine” to be
used “sparingly and only as a last resort.” Curves, LLC v. Spalding County, Ga., 685 F.3d
1284, 1290 (11th Cir. 2012) (citation omitted).
Viewed in this context, B&G’s overbreadth argument is without merit. The

definition of “Adult business” is explicitly limited to those performances, images or
recordings that have, as their primary or dominant theme, subject matter depicting,
describing or relating to specified sexual activities or specified anatomical areas. See
SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART. XI at § 22-
238. This limitation contradicts B&G’s assertion that “[t]he definition also would include

fleeting presentations of nudity, no matter how brief.” (ECF No. 68 at 17). The definition
also does not apply to all businesses, but only those that must restrict entrance to patrons
eighteen years of age and older. See SUSTAINABLE 2015 OPA-LOCKA LAND DEVELOPMENT
REGULATIONS, ART. XI at § 22-238.
Moreover, “to establish unconstitutional overbreadth, the danger to the suppression
of First Amendment rights must be both ‘real’ and ‘substantial’.” Curves, 685 F.3d at 1292

(citation omitted). B&G has not shown this. Indeed, the City’s Land Development
Regulations do not ban adult businesses. Section 22-81 only limits their location to the I-2
or I-3 zones.
Based on the foregoing, no reasonable jury could conclude that the definition of
“Adult business” in Section 22-238 of the City’s Land Development Regulations is
unconstitutionally vague or overbroad. The City is therefore entitled to summary judgment

on Count VI.
G. The City is Entitled to Summary Judgment on Count VII
B&G argues that the definitions of “Nudity, partial,” “Nudity, total,” and “sexual
conduct” in section 4-16 of the City’s Code of Ordinances are unconstitutional.15 (ECF No.
46 at ¶¶ 156-160; ECF No. 68 at 16, 18). B&G begins with the argument that the term

15 “Nudity, partial” is defined as “the exhibition by any female person to any other person of any
portion of her breasts falling below the areola, or any simulation thereof (which definition shall
include the entire lower portion of the human female breast, but shall not include any portion of
the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit,
or other wearing apparel, provided the areola is not so exposed). CITY OF OPA-LOCKA, FLA., CODE
OF ORDINANCES CH. 4, ART. II at § 4-16 (3).
“Nudity, total” is defined as “the showing of all or any portion of the cleft of the human male or
female buttocks with less than a full opaque covering; the showing of all or any portion of the
female areola; the depiction of covered male genitals in a discernible turgid state; the exhibition
by any person to any other person, of his or her genitals, public area, vulva, anus, anal cleft or
cleavage, or any portion of the foregoing specified anatomical areas, or any simulation thereof.”
Id. at § 4-16 (4).
“Sexual conduct” is defined as “any sexual intercourse, masturbation, sodomy, bestiality, oral
copulation, flagellation, any sexual act which is prohibited by law, touching, caressing or fondling
of the breasts, buttocks or any portion thereof, anus or genitals or the simulation thereof.” Id. at §
4-16 (6).
“simulation,” which is included in each of the definitions, is overbroad. (ECF No. 46 at ¶
160; ECF No. 68 at 18). This argument is without merit.

In Curves, the Eleventh Circuit considered whether an ordinance which regulated
the performance or simulation of “any specified sexual activity” was too broad. Curves,
685 F.3d at 1290-91. The plaintiffs in Curves argued that that definition of “specified
sexual activity” was overbroad “because, among other reasons, it bans ‘simulated’
conduct….” Id. at 1291. The Eleventh Circuit disagreed. The Curves Court reasoned that
the ordinance “does not inherently ban nude dancing at all, even nude dancing that includes

‘simulated’ conduct and ‘erotic touching.’ [It] just disallows such acts in a commercial
venue where alcohol is sold.” The statute is not overbroad on this basis.” Id. (emphasis in
original).
Here, the challenged definitions are found in Chapter 4, Article II of the City’s Code
of Ordinances. Chapter 4 is titled “Alcoholic Beverages” and Article II is titled “Total or

Partial Nudity and Sexual Conduct in Alcoholic Beverage Establishments.” CITY OF OPA-
LOCKA, FLA., CODE OF ORDINANCES CH. 4, ART. II. As in Curves, the term “simulation” is
not unconstitutionally overbroad because the ordinance is limited to commercial venues
where alcohol is sold (i.e., alcoholic beverage establishments).
Next, B&G turns to the definition of “sexual conduct” and, in particular, two phrases

included therein: “any sexual act which is prohibited by law” and “caressing or fondling.”
CITY OF OPA-LOCKA, FLA., CODE OF ORDINANCES CH. 4, ART. II. at § 4-16 (6). In the SAC,
B&G alleged that those phrases are unconstitutionally vague. (ECF No. 46 at ¶ 159). In its
Motion for Summary Judgment B&G abandoned that claim, and adopted a new one: that
those terms are overbroad.

According to B&G, its “principal vagueness claim centers on the undefined term
‘playhouse’….” (ECF No. 87 at 17).16 B&G then explained that “[t]he definitions in Chap.
4, Art. II, § 4-16 are certainly vague, but their problem is not that they regulate Plaintiffs’
particular format in an uncertain manner, but rather, that they also regulate the speech of
third parties who are not properly subject to the Ordinance.” (ECF No. 87 at 18) (bold
emphasis added; italicized emphasis in original); see also (ECF No. 68 at 17 n.8)

(acknowledging that “[i]n their Complaint, Plaintiffs identified the portion of the ordinance
addressing ‘caressing or fondling’…as being vulnerable to a vagueness challenge” and
asserting that “[h]owever, that portion of the Code is better analyzed under overbreadth
principles.”).
B&G is bound by its claim as pled in the SAC. “It is well-settled in this circuit that

a plaintiff may not amend the complaint through argument at the summary judgment phase
of proceedings.” GeorgiaCarry.Org., Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th Cir.
2012) (citations omitted); see also Dukes v. Deaton, 852 F.3d 1035, 1046 (11th Cir.
2017) (explaining that in her amended complaint, the plaintiff “alleged one theory of
supervisory liability” and then in her brief in opposition to summary judgment “asserted

an alternative theory of supervisory liability” that was a “distinct ground for supervisory

16 This too, is a claim that B&G first made in its Summary Judgment Motion. See n. 14, infra.
liability” such that the plaintiff could not raise the new theory in a brief in opposition to a
motion for summary judgment without first moving to amend the complaint).

B&G attempts to justify its belated amendment by asserting that the concepts of
vagueness and overbreadth “are very closely connected and are often confused by the
Courts themselves.” (ECF No. 94 at 10). B&G contradicts itself by elsewhere recognizing
that the two concepts are “distinct,” (ECF No. 87 at 18), and, as the Court’s earlier
discussion of these topics makes clear, they are governed by different legal standards.
B&G’s other purported justification also rings hollow. B&G hypothesizes that

“[t]he City clearly understood what was intended as it fully responded to Plaintiffs’
arguments in its summary judgment briefing”- suggesting that the City understood the SAC
to make an overbreadth claim. (ECF No. 94 at 10). The record does not support this at all.
In its response to B&G’s Motion, the City argued first, that B&G should not be allowed to
alter its claim through summary judgment, and then, second, responded to the substantive

arguments B&G raised. (ECF No. 85 at 11-14). This was an entirely reasonable response
to B&G’s change of position. It cannot be used to construe the SAC to plead something
that it did not.
In sum, the term “simulation” is not overbroad as a matter of law, and B&G cannot
seek summary judgment on the basis that the phrases “any sexual act which is prohibited

by law” and “caressing or fondling” are overbroad, because they did not raise this claim in
the SAC. Further, B&G readily admits that those phrases are not unconstitutionally vague.
(See ECF No. 87 at 18). Accordingly, the definitions of “Nudity, partial,” “Nudity, total,”
and “sexual conduct” in section 4-16 of the City’s Code of Ordinances are not
unconstitutional and the City is therefore entitled to summary judgment on Count VII.

H. Neither Party is Entitled to Summary Judgment on Count VIII
B&G claims that the City’s Sign Code, which is set forth in Article X of the Code,
violates the First Amendment because it is comprised of content-based regulations and
constitutes a prior restraint. (ECF No. 46 at ¶¶ 163-197; ECF No. 68 at 19-20). B&G cites
to several provisions of the Sign Code that it contends reflect distinctions based upon the
content of the sign or the identity of the speaker: (i) the provision at X-20-21 which exempts

certain signs, such as political signs and signs for city sponsored or city approved events,
from the permit requirement; (ii) the provision at X-43 which allows theaters, playhouses
and other similar cultural or civic establishments to display multiple signs; (iii) the
provision at X-60 which prohibits various signs, including “signs that exhibit thereon any
lewd, obscene, offensive, or lascivious matter;” and (iv) the provision at X-61 which

prohibits signs advertising real estate to bear the realtor’s picture. (ECF No. 68 at 19-20).
The City’s only argument is that B&G does not have standing to raise a facial
challenge to the Sign Code because “[t]he City’s sign regulations do not grant unbridled
discretion to the City Manager.” (ECF No. 85 at 17). The Supreme Court has “long held
that when a licensing statute allegedly vests unbridled discretion in a government official

over whether to permit or deny expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying for, and being denied, a license.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755–56 (1988) (collecting
cases). The Court previously held that B&G has standing to bring a facial challenge to the
Sign Code. (ECF No. 67 at 18-20; ECF No. 98). As explained below, my conclusion
remains the same.

The City contends that B&G cannot show that the City Manager was vested with
unbridled discretion because the Sign Code requires the City Manager to grant or deny a
sign permit within 30 days based upon “objective” criteria. (ECF No. 80 at 19). The City
is correct that the Sign Code provides a 30-day deadline in which to grant or deny a sign
permit, but I cannot agree that the criteria used is “precise and objective.” Lady J. Lingerie,
176 F.3d at 1361. The Sign Code states that “[i]n reviewing the sign plan the City Manager

or designee shall determine if the following criteria has been met:
That the signage for the project is in keeping with the
overall architecture and character of the building
development, etc.
That the signage for the project is designed to meet the
directional needs of the project for communication,
identification, way finding, regulatory and
informational messages in keeping with the overall
architectural theme of the development or project.
That the signage proposed is legible, conspicuous and
easily readable.
That the visibility and impact of the type of sign,
number of signs, design, size, method of, construction,
illumination and location of the proposed signs are in
compliance with the minimum standards of this
Ordinance, and does not adversely impact adjoining
properties, or create a hazard of health risk.
That the proposed signage is consistent and not in
conflict with the intent and interests of the City of Opa-
locka, as stated in the policy adopting this code.”
See SUSTAINABLE OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ARt. X at X-14. The
Sign Code further provides that “[t]he City Manager or designee shall have authority to

refuse the issuance of or revoke any license or permit issued under the provisions of this
article if the application submitted shall not comply with the provisions in this article.” Id.
at X-15.
The City glosses over these criteria and does not explain how they meaningfully
limit the City Manager’s discretion. The last criterion is the most obvious example of the
broad discretion given to the City Manager, who can grant or deny a permit depending

upon whether the proposed signage “is consistent and not in conflict with the intent and
interests” of the City. SUSTAINABLE OPA-LOCKA LAND DEVELOPMENT REGULATIONS,
ART. X at X-14. This provision “is neither precise nor objective.” Lady J. Lingerie, 176
F.3d at 1362. The same is true of the first criterion, which empowers the City Manager to
make a permitting decision based upon whether the proposed signage “is in keeping with

the overall architecture and character of the building development, etc..” SUSTAINABLE
OPA-LOCKA LAND DEVELOPMENT REGULATIONS, ART. X, X-14.
For these reasons, I again conclude that B&G has standing to assert a facial
challenge to the Sign Code.
Having established that B&G has standing, I turn to the merits of its claim. As noted

earlier, content-based laws are only permissible if they satisfy strict scrutiny, which
requires the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest. Reed, 576 U.S. at 163 (citations omitted). The
City makes no attempt to demonstrate that the Sign Code is content-neutral. The City’s
tacit concession that the Sign Code is a content-based regulation is unsurprising given that
the provisions referenced above plainly single out specific subject matter and specific

speakers for differential treatment. Id. at 169. Since the City does not dispute that the Sign
Code is a content-based regulation, it must demonstrate that the Sign Code satisfies strict
scrutiny. The City makes no attempt to do so. Given that the undisputed material facts
establish that the Sign Code is a content-based regulation, and the City fails to demonstrate
that the stringent requirements of strict scrutiny have been met, the Sign Code violates the
First Amendment as a matter of law.17

However, that is not the end of the inquiry. The City has invoked the doctrine of
unclean hands. (ECF No. 85 at 18-20; ECF No. 101 at ¶ 54). This doctrine “is a self-
imposed ordinance that closes the doors of a court of equity to one tainted with
inequitableness or bad faith relative to the matter in which he seeks relief, however
improper may have been the behavior of the defendant.” Precision Instrument Mfg. Co. v.

Automotive Maintenance Machinery Co., 324 U.S. 806, 814 (1945). To assert an unclean
hands defense, a defendant must first demonstrate that the plaintiff’s wrongdoing is
“directly related to the claim against which it is asserted” and second, that the defendant
“was personally injured by [the wrongful] conduct.” Calloway v. Partners Nat. Health
Plans, 986 F.2d 446, 450-51 (11th Cir. 1993) (citations omitted).

17 Having reached this conclusion, the Court need not address B&G’s argument that the Sign Code
is also an unconstitutional prior restraint.
Importantly, the unclean hands doctrine “traditionally applies only to equitable
remedies and does not bar a plaintiff from recovering damages.”18 Royal Palm Properties,

LLC v. Premier Estate Properties, Inc., No. 10-80232-CV, 2010 WL 3941745, at *2 (S.D.
Fla. Oct. 6, 2010) (citing Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d
852, 863 (5th Cir. 1979)).
In its reply memorandum,19 B&G cites a Seventh Circuit case that, in dicta,
observed that an unclean hands defense may “have more limited play in free-speech cases
than elsewhere… [although] [o]cassional application of the doctrine in First Amendment

cases may be proper and even necessary….” Shondel v. McDermott, 775 F.2d 859, 869-70
(7th Cir. 1985). B&G, however, has cited no decision that held the defense is inapplicable
to a First Amendment claim, and this Court knows of none. B&G does cite authority for
the proposition that if proven, the defense may “inform the scope and nature of the relief
to be afforded.” (ECF 94 at 8) (citing Scherer Design Grp., LLC v. Ahead Eng’g LLC, 764

Fed. App’x 147, 150 (3d Cir. 2019) and Shondel, 775 F.2d at 868). This is something the
Court can address at trial.
In sum, I find that the unclean hands doctrine is an available defense for the City. I
also find that that defense cannot be resolved on summary judgment. The City argues that
B&G acted with unclean hands because it misrepresented the proposed use of its property

18 For this reason, the City’s unclean hands defense does not defeat entry of summary judgment
for B&G on liability on Counts I and II, because there B&G seeks compensatory damages in
addition to equitable relief. (See ECF No. 46 at 19, 24).
19 See ECF No. 94 at 8.
as “playhouse, bar, tavern” on its applications for an occupational license and certificate of
use, as well as on their zoning verification form. (ECF No. 85 at 19-20). B&G denies doing

so, asserts that City officials knew the proposed use was for an adult business, and claims
that City personnel suggested the “playhouse, bar, tavern” description, which the City
denies. (ECF No. 69 at ¶¶ 7-10; ECF No. 86 at ¶ 11; ECF No. 88 at ¶¶ 15-19; ECF No. 94
at 9). These are genuine disputes of material fact whether B&G engaged in the misconduct
the City alleges amounts to B&G’s unclean hands. Accordingly, summary judgment on
Count VIII is not warranted.

III. RECOMMENDATION
For the foregoing reasons, I RESPECTFULLY RECOMMEND that the Court
GRANT IN PART Plaintiffs’ Motion for Partial Summary Judgment, (ECF No. 68), enter
judgment as a matter of law in Plaintiffs’ favor as to liability on Counts I and II of the
Second Amended Complaint and otherwise deny the Motion. I FURTHER

RECOMMEND that the Court GRANT IN PART Defendant City of Opa-locka’s Motion
for Summary Judgment, (ECF No. 80), enter judgment in the City’s favor on Counts V,
VI and VII of the Second Amended Complaint, and otherwise deny the Motion.
IV. OBJECTIONS
No later than September 25, 2020, both parties may file any written objections to

this Report and Recommendation with the Honorable Darrin P. Gayles, who is obligated
to make a de novo review of only those factual findings and legal conclusions that are the
subject of objections. Only those objected-to factual findings and legal conclusions may be
reviewed on appeal. See Thomas v. Arn, 474 U.S. 140 (1985), Henley v. Johnson, 885 F.2d
790, 794 (11th Cir. 1989), 28 U.S.C. § 636(b)(1), 11th Cir. R. 3-1 (2016). No responses to
any objections shall be filed absent an order of the Court.
RESPECTFULLY SUBMITTED in chambers at Miami, Florida, this 11th day of
September, 2020.

Chas Atilss sec
CHRIS McALILEY
UNITED STATES MAGISTRATE JUDGE

cc: The Honorable Darrin P. Gayles
Counsel of record

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118073. Public record. Not legal advice.