# Bunny's Cabaret, LLC v. Pinellas County

> District Court, M.D. Florida · July 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10642332

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10642332

## How later opinions describe it (automated extraction)

- holding that the onus is upon the parties to formulate arguments and “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it”
- holding “First Amendment is not implicated by the enforcement of a public health regulation of general application”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BUNNY’S CABARET, LLC,

Plaintiff,

v. Case No: 8:23-cv-2534-CEH-NHA

PINELLAS COUNTY,

Defendant.
___________________________________/
ORDER
This matter comes before the Court on Plaintiff Bunny’s Cabaret, LLC’s
Motion for Preliminary Injunction (Doc. 16). In the motion, Bunny’s Cabaret seeks a
preliminary injunction enjoining enforcement of Sec. 6-29 of the Pinellas County
Code. Defendant Pinellas County has responded in opposition. Doc. 21. The Court
heard argument on the motion on February 13, 2024, and conducted an evidentiary
hearing on April 2, 2024. Having carefully considered the motion and response, the
parties’ exhibits, the witnesses’ testimony, heard argument of counsel, and being
otherwise fully advised in the premises, the Court will deny Plaintiff’s Motion for
Preliminary Injunction.
I. BACKGROUND
A. Factual Background
Plaintiff, Bunny’s Cabaret, LLC (Plaintiff or “Bunny’s”) opened in March 2020
originally as a “Gentlemen’s Club” with a beer and wine license. Doc. 1-1 ¶¶ 13, 14.
At some point later, Bunny’s obtained a full liquor license, which it used in compliance
with restrictions pertaining to “adult uses.” Id. ¶ 15. On November 15, 2021, Bunny’s
gave up its liquor license and obtained a bottle club license to facilitate its goal of

presenting late-night entertainment. Id. ¶¶ 16–19; see Doc. 1-1 at 25–26. A “Bottle
Club” is a commercial establishment that operates for profit where patrons can
consume alcohol brought on the premises but not purchased there. Doc. 21 at 3; Doc.
1-1 at 25–26. Bunny’s has a policy in place that during the hours from 3:00 a.m. to
8:00 a.m., possession or consumption of alcohol on the premises is prohibited. Doc.

1-1 ¶ 18. This policy is posted throughout the building. Id.; Doc. 16-1 at 2.
Currently, Bunny’s operates as an entertainment venue in Pinellas Park where
local musical and R&B artists come together to perform on stage before a live
audience. Doc. 1-1 ¶ 19. Bunny’s describes the late-night characteristics of its

entertainment to convey not just the music but also as an expression and
communication of non-conformity, energy, rebelliousness, and stamina. Doc. 16-1 at
2; Doc. 16-2 at 2.
Throughout 2023 from February through September, Bunny’s received citations
from the Pinellas County Sheriff’s Office (“PCSO”) for violations of Section 6-29 of

the Pinellas County Code. Doc. 1-1 ¶¶ 20–29. Section 6-29 mandates, in relevant part,
the closing of all business establishments “dealing in alcoholic beverages” from the
hours of 3:00 a.m. to 8:00 a.m. on each day of the week. Bunny’s was ordered to close
by the PCSO, and Bunny’s acting manager was cited for violations of the Pinellas
2
County Code Sec. 6-29 on February 19, 2023; March 4, 2023; May 6, 2023; June 4,
2023; June 10, 2023; August 19, 2023; August 25, 2023; August 26, 2023; August 31,
2023; and September 2, 2023. See Doc. 1-1 ¶¶ 19–29; see also Doc. 1-1 at 27–35.

Bunny’s seeks injunctive relief, arguing Sec. 6-29 is unconstitutional because it
prohibits free exercise of speech, freedom of association of “like-minded” individuals,
and free presentation of artistic expression, which includes being able to present artistic
performances between the hours of 3:00 a.m. and 8:00 a.m., which is an essential
component of the “late night” entertainment. Doc. 16.

B. Procedural Background
In September 2023, Bunny’s brought this action, under 42 U.S.C. § 1983, in
state court against Defendants Pinellas County (Defendant or “Pinellas County”) and
Bob Gualtieri (“Gualtieri”), in his official capacity as Sheriff of PCSO, for alleged

violations of First Amendment, equal protection and due process rights, and the
companion provisions of the Constitution of the State of Florida. Docs. 1-1, 1-2.
Bunny’s filed its Amended Complaint on October 25, 2023 (Doc. 1-1), and Defendant
Gualtieri removed the suit to federal court on November 6, 2023 (Doc. 1). Defendant
Pinellas County consented to the removal. Doc. 9. On November 20, 2023, Bunny’s

voluntarily dismissed Gualtieri from the suit pursuant to Fed. R. Civ P. 41(a)(1)(A)(i).
Doc. 15. According to its filings, Bunny’s dismissed the Sheriff from this action based
on the Sheriff’s confirmation that any ruling from this Court enjoining the challenged
legislation would be honored by the Sheriff. Doc. 16 at 2, n.1.
3
On November 29, 2023, Bunny’s filed the instant Motion for Preliminary
Injunction. Doc. 16. Pinellas County responded in opposition. Doc. 21. The Court
heard argument on the motion initially on February 13, 2024. Doc. 29. At the hearing,

it became apparent that disputed issues of fact existed. Accordingly, the Court
scheduled an evidentiary hearing, which took place April 2, 2024. Docs. 33–37.
C. Testimony and Evidence Presented at Evidentiary Hearing
Plaintiff presented the testimony of three witnesses at the hearing. Defendant

did not offer any witnesses, but presented the body camera footage taken from officers
who had cited Bunny’s for Pinellas County ordinance violations and who directed
Bunny’s to close at 3:00 a.m.
1. Jason Tanner
Bunny’s owner, Jason Tanner, runs the day-to-day operations for the business,

which started in 2020 initially as a Gentleman’s Club. Ultimately, Bunny’s shifted
business models finding a need and interest for late night entertainment for clientele
after 3:00 a.m. who were interested in keeping the celebration going. He testified that
many artists who also work in the service industry are unable to present their music
because venues are not open when they get off work. Bunny’s is currently operating

Thursday through Sundays. It closes at 3:00 a.m., under protest, until this dispute is
resolved.
Tanner stated that there is something liberating to be able to extend your night
past 3:00 a.m. He claims it’s unique because there is a different energy and lack of
4
pressure at that late hour, an element of rebelliousness, stamina, and emotional
celebration. Many of the artists who perform during the late hour are new performers
who are presenting experimental shows. Being able to perform after hours increases

the acceptance of these performances. There is no exact time that makes performances
after 3:00 a.m. better, but the performers during these late hours usually do not have
other opportunities to perform before 3:00 a.m. Tanner is the one who decides who
performs at Bunny’s, and he acknowledged that these artists have been permitted to
perform at Bunny’s both before and after 3:00 a.m.

Tanner further testified that Bunny’s operated without incident under this
format of staying open past 3:00 a.m. up until about a year ago when, in approximately
March 2023, PCSO officers began showing up and demanding that Bunny’s close at
3:00 a.m. per Pinellas County ordinance.
Although it had a bottle club license, Bunny’s had a policy in effect that no

alcohol was permitted after 3:00 a.m. According to Tanner, Bunny’s would diligently
enforce the policy by announcing it and then have floor and security staff walk the
crowd to ensure patrons threw out their alcohol or left the premises. Tanner
acknowledged that there was a way to get alcohol into Bunny’s if a customer really
wanted to, but if any Bunny’s staff saw it, they would request it be thrown out or ask

the patron to leave.

5
Tanner indicated that Bunny’s does not offer adult entertainment, but it does
have dancers. He described the dancers as more of a “Go-Go” atmosphere, nothing
sexually explicit. The performers include DJs, singers, rappers, and comedy acts.

2. Cody Hamel
Cody Hamel is the general manager for Bunny’s, and he has been in this
position for three months. He testified that Bunny’s is currently not open past 3:00
a.m. because it is waiting for permission. He did not work at Bunny’s when it was
open past 3:00 a.m.

3. Gamaliel Bosques
Gamaliel Bosques has worked as a DJ at Bunny’s for the past two years. He
also works as a manager and security, as needed. He worked for Bunny’s when it was
an adult entertainment establishment previously, but then the crowd changed and the

patrons were looking for a late-night establishment where they could keep the party
going all night long.
Most clubs only allow DJs to play certain music—“Top 40”-type songs. At
Bunny’s, however, DJs can play whatever they want. Being open past 3:00 a.m. allows
Bosques to get experimental with his music. He described Bunny’s as the spot to get

your music out there if you’re a new artist. Bunny’s gives local talent the opportunity
to perform. At Bunny’s, Bosques has the same discretion to play the experimental
music he wants to play both before and after 3:00 a.m. He testified that the time of day
does not affect the message of the music.
6
The patrons who come to Bunny’s for the late-night entertainment are primarily
hospital and service workers who work until 3:00 a.m., and Bunny’s gives them a place
to go when they get off work. It also gives those people who go out in downtown, who

have the party mentality, a place where they can keep the party going.
Bosques serves many roles for Bunny’s besides DJ, including floor guy, money
manager, and supervisor of alcohol. When Bunny’s was open past 3:00 a.m., Bosques
would announce at 2:45 a.m. that the business was switching to “after hours.” Floor
guys would patrol the establishment at 3:00 a.m., telling patrons to get rid of their

alcoholic drinks or to leave. He acknowledged, however, that the floor guys would not
be smelling cups to make sure there was no alcohol in them.
4. PCSO Body Camera Footage
At the hearing, Defendant submitted body camera footage obtained from the
PCSO. Plaintiff submitted excerpts of the same body camera footage. Although no

witnesses were brought to testify regarding the videos, the parties stipulated to the
admission of the videos.
Defendant submits that the videos clearly shows alcohol consumption in
Bunny’s after 3:00 a.m. It was apparent from the videos that there were cups littered
throughout the business and at least one bottle of alcohol was visible on the video at a

table in Bunny’s after 3:00 a.m. Additionally, a patron commented about how much

7
he was charged for a drink. One of the officers found it curious that Bunny’s security
insisted that no cups leave the building, but supposedly the cups only contained juice.1
D. Motion for Preliminary Injunction (Doc. 16) and Response (Doc. 21)

Bunny’s moves for entry of a preliminary injunction, seeking to enjoin the
County and its agents from enforcing the 3 a.m. to 8 a.m. closure effected by Sec. 6-29
on the basis that the legislation is unconstitutional. Doc. 16. In support of its request
for injunctive relief, Bunny’s submits that it satisfies the four elements necessary to

obtain an injunction. First, Plaintiff argues it has a substantial likelihood of prevailing
on the merits because the challenged legislation (Section 6-29) is unconstitutional
because it: (a) was adopted without evidentiary support; (b) contains terms that are
unconstitutionally vague and overly broad; (c) is not rationally related to a legitimate
government interest, nor does it advance any legitimate government interest; (d)

violates the equal protection and due process clauses of the United States Constitution
and Florida’s Constitution; and (e) violates the First, Fifth,2 and Fourteenth
Amendments of the United States Constitution and the corresponding provisions of
Florida’s Constitution. Doc. 16 at 16–17.

1 Jason Tanner testified that the purpose of throwing out the cups before patrons left the
building was to prevent the cups from being discarded in the parking lot and making a mess.
2 According to the Amended Complaint, the Fifth Amendment challenge is predicated on the
Pinellas County Ordinance being an unlawful taking of private property. Bunny’s Fifth
Amendment challenge as a basis for injunctive relief is wholly undeveloped on the instant
motion, and thus the Court need not address it. See, e.g., Resol. Tr. Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995) (holding that the onus is upon the parties to formulate
arguments and “[t]here is no burden upon the district court to distill every potential argument
that could be made based upon the materials before it”).
8
Second, Plaintiff argues that it has been irreparably harmed because a loss of
First Amendment freedoms constitutes an irreparable injury. Id. at 22–23. Third,
Plaintiff argues that a violation of First Amendment freedoms outweighs the

government’s enforcement of an unconstitutional statute. Id. at 23. Fourth, Plaintiff
submits that protecting constitutional rights is always in the public’s interest. Id. In
support of its motion, Bunny’s proffers declarations from performers and its owner to
attest to the need for and importance of the distribution and consumption of late-night

entertainment. See Docs. 16-1, 16-2, 16-3, 16-4.
In response, Pinellas County argues that Bunny’s is unable to meet its burden
of establishing a likelihood of success on the merits of its constitutional challenges, and
thus it is not entitled to the extraordinary and drastic remedy of an injunction. Doc.
21 at 6–7. Pinellas County rebuts Bunny’s argument that there is no legislative

predicate or evidentiary support for the legislation by presenting transcripts of County
Board Meeting notes regarding the applicable ordinances (Doc. 21-9). Pinellas County
next argues the provision is not vague or overbroad as a plain reading of the statute
identifies exactly what is a covered business establishment for purposes of the
legislation and limiting operations only five out of twenty-four hours is not overly

broad. Pinellas County argues the legislation serves a legitimate government interest
in the uniform enforcement of its laws. Next, Pinellas County argues there is no due
process or equal protection violation because there has been no deprivation of a

9
constitutionally protected right as the legislation’s limitations relate to alcohol, not to
expression or association.
Because Bunny’s cannot show a likelihood that it will prevail on the merits,

Pinellas County submits the Court need not consider the remaining three requirements
for injunctive relief. But, even if the Court did find that Bunny’s met its burden of
establishing a likelihood of success on the merits, Pinellas County argues that the
motion still fails because Bunny’s cannot show it will suffer an irreparable injury
because any alleged injury could be compensated via economic means. Further,

Pinellas County contends any threatened injury does not outweigh the harm an
injunction would cause Defendant. Finally, Pinellas County argues that granting an
injunction is adverse to the public who have an interest in uniform enforcement of laws
governing businesses that sell alcohol and insulating communities in the surrounding
area from adult entertainment establishments like Bunny’s.

E. Relevant Ordinances
Sec. 6-26 Definitions
For the purposes of this article, the following definitions of terms shall prevail:
(1) The term "business establishment" shall include any place of business, such as a golf
club, grocery store, drugstore, nightclub, hotel, cafe, bottle club, bar, restaurant,
grill, filling station or location where:
a. One person pays another for an article or product that is mixed with
an alcoholic beverage, or an alcoholic beverage; or
b. A drinking container, drink, water, beverage, or other product or
article, for a consideration of any kind is sold, dispensed, served or
provided, for the purpose of drinking an alcoholic beverage or with
the knowledge, actual or implied, that the same will be, or is intended
to be, mixed, combined with, or drunk in connection or combination
10
with an alcoholic beverage. Any place of business wherein an
alcoholic beverage is carried, stored, dispensed, or consumed by the
owner of the beverage or his guest, or stored or dispensed by the
owner, operator or employee of such place, shall be deemed a
business establishment defined in this paragraph, even if no
consideration is paid directly for the dispensing, serving, or otherwise
providing of such product or article, so long as the establishment
charges any door fee, cover charge, entertainment fee, music fee,
exhibition fee, membership fee, storage fee, or any other indirect
payment device for admission to the premises.
(2) The term "alcoholic beverage" shall include all beverages containing more than one
percent of alcohol by weight.
(3) The term "weekday" shall mean each day of the week except Sunday.

Sec. 6-27 Penalty for violation of article
Any person, firm or corporation, or owner, lessor, partner, operator,
manager, or employee of any business establishment as defined in this article
violating any of the provisions of this article shall be deemed, upon
conviction thereof, guilty of a misdemeanor and shall be punished therefor
as provided by law.

Sec. 6-28 Purpose and Intent
The purpose of this article is to provide uniform regulation of all
establishments and persons in Pinellas County dealing directly or indirectly
with the sale, dispensing or consumption of alcoholic beverages.
Uncertainty and confusion in the applicable laws now exist which have
resulted in evasions of the law and rendered enforcement thereof impossible.
It is the legislative intent that this article apply to all establishments and
persons in any manner dealing with the sale, dispensing or consumption of
alcoholic beverages, that the owners or operators of such establishments
shall be notified hereby that they are not exempted from any zoning and
land use prohibitions and regulations in force in the county unincorporated
area or in the incorporated town or city where such establishments are
located, that owners, operators, employees, patrons and others controlling,
working in, or consuming alcohol on the premises of such establishments
shall be notified hereby of the conduct and activities prohibited by this
article, and the penalties for any violation thereof, and that this article be
liberally construed as to effectuate this purpose.

11
Sec. 6-29 Closing Hours
All business establishments in Pinellas County, licensed or unlicensed,
dealing in alcoholic beverages, public or private, either directly or indirectly,
shall remain closed from the hours of 3:00 a.m. to 8:00 a.m. on each day of
the week unless any municipality in Pinellas County establishes shorter
opening hours as provided in section 6-31 of this article.

II. LEGAL STANDARD
A party seeking entry of a preliminary injunction must establish: (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable
injury if the injunction is not granted; (3) the threatened injury to the moving party
outweighs whatever damage the proposed injunction may cause the opposing party;
and (4) if issued, the injunction would not be adverse to the public interest. Forsyth Cty.
v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (quotations omitted).
“A preliminary injunction is an extraordinary and drastic remedy not to be granted
unless the movant clearly establishes the burden of persuasion as to the four
requisites.” Am. C.L. Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198
(11th Cir. 2009) (citation omitted). The entry of a preliminary injunction is “the
exception rather than the rule, and plaintiff must clearly carry the burden of
persuasion.” Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir. 2000) (quoting Texas v.
Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975)).

III. DISCUSSION
Bunny’s seeks injunctive relief, arguing that Section 6-29 is unconstitutional
because the ordinance violates the First Amendment’s right of freedom of expression.
12
As a starting point, the Court must determine whether the First Amendment protects
the conduct at issue in the challenged statute. Bunny’s submits that it desires to present
a message of artistic expression through experimental music to a different audience

who goes out after 3:00 a.m. and the challenged statute precludes that expression.3
Indeed, the Supreme Court has recognized that the First Amendment protection
extends to music, as a form of speech and expression, from governmental censorship
and control. DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1265 (11th Cir. 2007)
(citing Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989)).

The legislation challenged here, however, does not regulate speech or
expression such that it implicates the First Amendment. Section 6-29 is a classic
closing time ordinance governing alcohol, specifically “business establishments in
Pinellas County, licensed or unlicensed, dealing in alcoholic beverages . . . .” Pinellas

County Ordinance 6-29 uniformly requires Pinellas County business establishments
dealing in alcohol, with a few limited exceptions, to close at 3:00 a.m. Although
Bunny’s does not serve alcohol, it has a bottle club license, which means that its
patrons may bring alcohol onto Bunny’s premises to be consumed there. Thus,
Bunny’s, like other Pinellas County business establishments that allow alcohol to be

3 Pinellas County refutes Bunny’s portrayal of itself as a “music venue,” instead arguing that
Bunny’s is primarily a strip club as evidenced by its own social media posts. Doc. 21 at 3. To
the extent that Bunny’s is determined to be an adult entertainment venue, the Eleventh Circuit
has recognized that “[c]ombating the harmful secondary effects of adult businesses, such as
increased crime and neighborhood blight, is a substantial government interest.” Lady J.
Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999) (citing City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 50–52 (1986)).
13
consumed on premises, is required to close at 3:00 a.m. See Arcara v. Cloud Books, Inc.,
478 U.S. 697, 707 (1986) (holding “First Amendment is not implicated by the
enforcement of a public health regulation of general application”).

Bunny’s cites to the Supreme Court’s opinion in 44 Liquormart, Inc. v. Rhode
Island, 116 S. Ct. 1495 (1996), for the proposition that the Twenty-First Amendment
and the government’s right to regulate alcohol does not allow restrictions on First
Amendment rights. Doc. 16 at 14. The challenged statute in 44 Liquormart specifically

sought to control speech related to alcohol, banning advertising retail alcoholic
beverage prices except at the place of sale. Id. at 489. The plaintiff liquor retailer sought
a declaratory judgment that Rhode Island laws banning such advertisement violated
the First Amendment because it did not directly advance the State’s asserted interest
in the promotion of temperance and was more extensive than necessary to serve that

interest. Ruling in favor of the retailer, the Court held Rhode Island’s statutory
prohibition against advertisements that provide the public with accurate information
about retail prices of alcoholic beverages is invalid. Id.
In contrast, the challenged ordinance here does nothing to regulate speech or
expression. Notwithstanding Bunny’s arguments to the contrary, Section 6-29 does

not censor or control musical or creative expression. Significantly, the performers’
ability to express themselves artistically was not precluded at Bunny’s. As testified by
Tanner and Bosques, the performers at Bunny’s were given discretion to present their
creative expression at any time. Whereas other clubs limit the type of music that can
14
be played, Bunny’s prides itself in allowing new performers to express themselves and
try out their music to Bunny’s audience, and the time of day does not affect that artistic
expression. Thus, because the legislation does not implicate the First Amendment,

Bunny’s challenge on this basis fails.
In evaluating a constitutional challenge, courts must determine what type of
scrutiny should be applied in the analysis. The parties agree that the challenged
ordinance is content-neutral legislation to which intermediate scrutiny applies (Doc.
16 at 19; Doc. 21 at 7). Closing time ordinances have been routinely regarded as being

content neutral. See generally Lexra, Inc. v. City of Deerfield Beach, 593 F. App’x 860 (11th
Cir. 2014). “The principal inquiry in determining content neutrality, in speech cases
generally and in time, place, or manner cases in particular, is whether the government
has adopted a regulation of speech because of disagreement with the message it
conveys.” Rock Against Racism, 491 U.S. at 791 (citation omitted). Pinellas County’s

3:00 a.m. closing ordinance is content-neutral because it “applies equally to all, and
not just to those with a particular message or subject matter in mind.” Burk v. Augusta-
Richmond Cnty., 365 F.3d 1247, 1254 (11th Cir. 2004) (citation omitted). “If the
ordinance is a content-neutral time, place, and manner restriction, it is subject to

intermediate scrutiny—that is, it must not restrict speech substantially more than
necessary to further a legitimate government interest, and it must leave open adequate
alternative channels of communication.” Solantic, LLC v. City of Neptune Beach, 410

15
F.3d 1250, 1258 (11th Cir. 2005).4 Thus, a standard of intermediate scrutiny would
apply to the Pinellas County closing ordinance. See City of L.A. v. Almeda Books, 535
U.S. 425, 430 (2002) (internal citations omitted).

In support of the legitimate governmental interest, Pinellas County points to the
ordinance’s stated purpose and a discussion of the legislative history. Regarding
adequate alternative channels of communication, both Tanner and Bosques made
clear, the performers at Bunny’s were permitted to present their artistic expressions
both before and after 3:00 a.m., and thus closing at 3:00 a.m. did not preclude their

musical expressions. And, significantly, the ordinance does not regulate Bunny’s
ability to engage in protected expression or otherwise dictate the type of musical
performers that can play during normal operating hours before 3:00 a.m. Additionally,
for those performers in the service industry who work late hours on the weekends,
there is nothing preventing them from performing other nights of the week, but

Bunny’s chooses to be open only Thursday through Sunday. Lastly, if Bunny’s
operated without a bottle license, it could remain open twenty-four hours and allow
the presentation of musical performances all day and night. Thus, even if the
challenged legislation implicates the First Amendment, the law is narrowly tailored to

4 In contrast, ordinances that are content based are “subject to strict scrutiny, meaning that it
is constitutional only if it constitutes the least restrictive means of advancing a compelling
government interest.” Solantic, 410 F.3d at 1258 (citation omitted).
16
satisfy intermediate scrutiny under the time, place, and manner test. Plaintiff fails to
show a likelihood of success on its First Amendment challenge.
Bunny’s raises several other constitutional challenges to Section 6-29 which the

Court will address in turn below.
A. Adopted without predict or evidentiary support
Bunny’s argues the ordinance is unconstitutional because it was adopted
without legislative predicate. Specifically, Bunny’s submits that Pinellas County failed

to produce relevant evidence that the legislation advances a legitimate government
interest or that Plaintiff’s constitutionally protected expression results in any alleged
adverse or negative secondary effects. Doc. 16 at 17–18. Bunny’s further argues there
has been no showing that the restrictions are reasonable or necessary. The Court
disagrees. As argued by Pinellas County, the ordinance does further a legitimate

government interest in that it supports consistency in the closing times of businesses
dealing in alcoholic beverages. The ordinance’s purpose is set forth in the legislation.
See Pinellas County Ordinance Section 6-28 (“The purpose of this article is to provide
uniform regulation of all establishments and persons in Pinellas County dealing
directly or indirectly with the sale, dispensing or consumption of alcoholic

beverages.”). The need for the uniformity was addressed in County Board Meeting
minutes in which the history behind the uniformity requirement was discussed,
including law enforcement’s concern of preventing inebriated patrons from driving
across County from one bar closure to the next later bar closure. See Doc. 21-9.
17
Although Bunny’s represents that it makes patrons leave or throw out their alcohol at
3:00 a.m., the PCSO body camera footage presented at the evidentiary hearing
revealed the presence of alcohol at Bunny’s after 3:00 a.m. Additionally, Bunny’s

owner acknowledged that if patrons wanted to bring alcohol in, they would find a way.
Bosques also acknowledged the floor guys were not smelling cups to see if they
contained alcohol.5 Thus, despite Bunny’s internal policy that no alcohol was
permitted after 3:00 a.m., the evidence and testimony demonstrate that alcohol was
accessible to Bunny’s patrons after 3:00 a.m. The Court finds that Section 6-29 furthers

a legitimate government interest.
B. Contains terms that are unconstitutionally vague and overly broad
Bunny’s next contends the ordinance is unconstitutionally vague and
overbroad. Bunny’s argues the legislation’s sweeping definition of “Business

Establishment” is unlawful because it subjects businesses to criminal punishment for
selling any item that could be mixed with alcohol between the hour of 3:00 a.m. and
8:00 a.m. Bunny’s argues the ordinance does not further a substantial government
interest and is not narrowly tailored to do so. Doc. 16 at 17–18.

5 The body camera footage captured statements by patrons and the PCSO officers at the scene,
which support the conclusion that alcohol was on the premises after 3:00 a.m. Plaintiff
contends the statements are hearsay. However, the parties stipulated to the admission of the
body camera footage for purposes of the evidentiary hearing. Moreover, in deciding whether
a party has met its burden, “[a] district court may rely on affidavits and hearsay materials
which would not be admissible evidence for a permanent injunction, if the evidence is
appropriate given the character and objectives of the injunctive proceeding.” Levi Strauss & Co.
v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (internal quotations and citation
omitted)
18
Pinellas County responds that the plain language of the legislation is clear that
business establishments dealing in alcohol, with a few exceptions, must close at 3:00
a.m. Regarding the governmental interest, Pinellas County submits that the stated

purpose and intent of the statute is to provide uniformity in enforcement and clear
guidance to law enforcement. As for any claim of overbreadth, Pinellas County argues
that limiting closure to only five hours of a 24-hour day is not overly broad. As noted
by Pinellas County, if Bunny’s ceased allowing alcohol for on-premises consumption,
it could remain open continuously.

A law is impermissibly vague when “it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits” or “it
authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v.
Colorado, 530 U.S. 703, 732 (2000); see also Jordan v. De George, 341 U.S. 223, 231–32

(1951) (procedural due process requires laws give “sufficiently definite warning as to
the proscribed conduct when measured by common understanding and practices.”).
The ordinance at issue here is directed to business establishments dealing in alcohol
and requires that they close at 3:00 a.m. A person of ordinary intelligence can
understand the ordinance. On this motion, Bunny’s fails to demonstrate otherwise.

Further, the Court agrees that the ordinance is not substantially broader than necessary
to achieve the government’s interest because it only requires Bunny’s to be closed for
a five-hour period of time in a 24-hour day. In considering this factor, “judges are not
policymakers, and the Ordinance will not be struck down simply because a court
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concludes that the government’s interest could be adequately served by some less-
speech-restrictive alternative.” Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231,
1247 (11th Cir. 2022). Finding Section 6-29’s closure window of time not substantially

broader than necessary, the Court need not engage in a “line-drawing exercise.” See
id. Plaintiff fails to show a substantial likelihood of success on this challenge.
C. Lacks rational relationship to legitimate government interest
Bunny’s constitutional challenge that the ordinance is not rationally related to

any legitimate government interest similarly fails. As stated above, on its face, the
purpose and intent of the ordinance clearly identifies a legitimate government interest
in the uniform enforcement of the County’s laws and to eliminate uncertainty and
confusion in the application of the law.
D. Violates the equal protection and due process clauses

On its equal protection and due process challenges, Bunny’s argues that
violation of the ordinance inappropriately criminalizes the proscribed behavior. To
show a denial of procedural due process requires proof of three elements: “(1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state action;
and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232

(11th Cir. 2003) (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). Pinellas
County submits that Bunny’s fails on the first element because there is no deprivation
of a constitutionally protected right. As discussed in more detail above, the Court
agrees. This closing time ordinance governs alcohol, not First Amendment speech or
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expression. And, as testified to by the witnesses, performers at Bunny’s were not
precluded from presenting their artistic expressions before 3:00 a.m.
Pinellas County further responds that Bunny’s argument about the legislation

imposing criminal sanctions without due process fails because it ignores
Administrative Order No. 2018-068 PI-CTY, which states that the sole and exclusive
penalty for a violation of a local ordinance is a fine and court costs. See Doc. 21-10. As
noted by Pinellas County, the penalty provision of Section 6-27 making a violation of
the ordinance a misdemeanor is confined to a separate subsection which, if necessary,

could be severed. See Doc. 21 at 14 (citing the severability clause of Section 1-7 of the
Pinellas County Code). Considering the Administrative Order’s limitation of penalties
and the severability of Section 6-27, the Court finds Bunny’s arguments of likelihood
of success on the merits of its due process challenge to be unavailing.

IV. CONCLUSION
Plaintiff fails to carry its burden of demonstrating a substantial likelihood of
success on the merits on its constitutional challenges. The failure to establish an
element, such as a substantial likelihood of success on the merits, warrants denial of
the request for preliminary injunctive relief and obviates the need to discuss the

remaining elements. See Pittman v. Cole, 267 F.3d 1269, 1292 (11th Cir. 2001) (citing
Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994)). Accordingly, it is
ORDERED:

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1. Plaintiff's Motion for Preliminary Injunction (Doc. 16) is DENIED.
DONE AND ORDERED in Tampa, Florida on July 9, 2024.

Chakene Charts Mo TL ol yell
Charlene Edwards Honeywell
United States District Judge

Copies to:
Counsel of Record
Unrepresented Parties, if any

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642332. Public record. Not legal advice.