Opposition Brief — Del Percio, Inc. v. City of Daytona Beach

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| 88-1580.

Supreme Court, U.S,

OS G2 ae ae a

1989

NIOL, JR,

APR 19

4

In The —

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Supreme Court of the Unifed States

October Term, 1988

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7:

DEL PERCIO, INC., et al.,

Petitioners,

CITY OF DAYTONA BEACH,

Respondent.

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.

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

.

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RESPONDENT'S BRIEF IN OPPOSITION

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OFFICE OF THE CITY ATTORNEY

THE CITY OF DAYTONA BEACH

301 South Ridgewood Avenue

P.O. Box 551

Daytona Beach, Florida 32015

FRANK B. GuMmMEy, III

City Attorney

Counsel of Record

MARIE HARTMAN

Assistant City Attorney

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review by Petitioners

contain factual statements unsupported by the record and

contrary to the trial court’s findings of fact. Respondent

would state the questions as follows:

1. Is a city’s adult entertainment zoning ordinance,

which provides a limited number of potential sites for the

location of sexually oriented businesses, an unconstitu-

tional restriction of First Amendment activities where the

ordinance is part of a bona fide redevelopment program

in a blighted urban area which was enacted to minimize

the secondary effects of such businesses and there has

been no showing that the sites are inadequate to meet the

demand for such uses in the community?

2. Absent evidence that the wording of an adult

business zoning ordinance has actually resulted in any

deprivation of First Amendment rights, does the lan-

guage of the ordinance meet constitutional requirements

where it has a commonly accepted meaning although not

defined with mathematical precision within the ordi-

nance itself?

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW........... i

TABLE OF CONTENTS. 05:4 scces9 3 ccs eee eee ii

TABLE OF AUTHORITIES: is. ics5 50500 0 eneee ees iii

SITAIBMENT OF THE CASE. cin ssssssss cue eeeeees 1

SUMMARY OF THE ARGUMENT ................. 9

ARGUMENT SUPPORTING DENIAL OF THE WRIT — 10

CONCLUBION ooo 5.0 65:5 snc opp etre ie ace eee 20

APPENDIX . ... 6 5s 0:3s0000kee ee ee App. 1

iii

TABLE OF AUTHORITIES

CaAsES

Bose Corp. v. Consumers Union of U.S., Inc. 466 U.S.

485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).......... 8

Christy v. City of Ann Arbor 824 F.2d 489 (6th Cir.

1987) cert. denied, U.S. __, 108 S.Ct. 1013, 98

ive ei esi shecb see saesceccacds

City of Daytona Beach v. Del Percio 476 So.2d 197

CEC eres Uw sts cevebedéoseevseevrenve 3

City of Renton v. Playtime Theatres, Inc. 475 U.S. 41,

106 S. Ct. 925, 89 L.Ed.2d 29 (1986)...........

Davison v. State 288 So.2d 483 (Fla. 1973), appeal

denied, 415 U.S. 943, 94 S.Ct. 1463, 39 L.Ed.2d

PU TCEG Th weg bees hotest 6 cecccontssesuss

FW/PBS, Inc. v. City of Dallas 837 F.2d 1298 (5th

Cir. 1988), cert. granted, __ U.S. __, 109 S.Ct.

te iG Séaveeceescees

International Food & Beverage Systems v. Fort

Lauderdale 794 F.2d 1520 (11th Cir. 1986), on

remand, 664 F.Supp. 482 (S.D.Fla. 1987)........

SDJ, Inc. v. City of Houston 837 F.2d 1268 (5th Cir.

1988), cert. denied, sub. nom. M.E.F. Enterprises,

Inc. v. City of Houston, __ US. __, 109 S.Ct.

eT CE UNE Ss aks cnse esse ¥senc aes’

Walnut Properties, Inc. v. Whittier 808 F.2d 1331

(9th Cir. 1986); 861 F.2d 1102 (9th Cir. 1988),

cert. denied, _ U.S. __, 57 USLW 3653 (1989) ....

Young v. American Mini Theatres, Inc. 427 U.S. 50,

15

12

15

12

96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)........ 10, 11, 17

iv

TABLE OF AUTHORITIES-—Continued

Page

STATUTES AND RULES

Pas Abas. CP Ps RAP aa oe Cen kee eehewn a eeueens 7, 15

ee nr koe. ics Sew tee te 6 Le ee 66-0 Seeee 8

OTHER AUTHORITIES

Annotation, Zoning — Delegation of Authority, 58

PcbaDeh UE C56 tsb sec cecesKed ees eehesseeterees 18

§§301.1(1), 302.1, BOCA National Building Code

1987, 10th Edition, Building Officials & Code

Administrators International, Inc. ................. 16

§8-1.3, Life Safety Code, 1988 Edition, National Fire

Protection Association, Inc. .............0.0000005. 16

§404.1.2, Standard Building Code, 1988 Edition,

Southern Building Code Congress International,

MR cactceecrcoct eves ne taseusaessneeeerestess ean e 16

§402, Uniform Building Code, 1988 Edition, Interna-

tional Conference of Building Officials............ 16

No. 88-1530

sé.

oe

In The

Supreme Court of the United States

October Term, 1988

sa.

bd

DEL PERCIO, INC., et al.,

Petitioners,

CITY OF DAYTONA BEACH,

Respondent.

Lp.

4

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

,

. 4

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioners’ statement of the case is riddled with

gross omissions and inaccuracies which have the effect of

misinforming this Court as to the true basis of the rulings

below.

Respondent, The City of Daytona Beach, is a Florida

municipal corporation established in 1925 by the consol-

idation of three existing small cities. At the time peti-

tioners filed their complaint, the City had an approximate

population of 59,000 and a land area of approximately

31.5 square miles.

Contrary to petitioners’ statement of fact, the record

does not provide any evidence as to whether “an average

mix of residential, commercial and industrial uses

[exists], and entertainment plays a large role in the City’s

economy.” The record does contain evidence, which is

summarized in the trial court’s Order under the heading

“Findings of Fact,” that the City is far from average. The

court found that Daytona Beach is “an unusual Florida

city” because it is an older community suffering from

many of the problems found in much larger northern

cities such as old housing stock, an inability to attract

new development, and a blighted core area. In 1981 the

City did a study which resulted in the designation of two

central areas of blight and a comprehensive program of

redevelopment was undertaken.

This redevelopment program, which is the bedrock

upon which the challenged zoning ordinance was

enacted, tried, and upheld, is not even mentioned by

petitioners before this Court.

The numerous steps taken by the City toward the

goal of redevelopment are discussed in detail in the

record, including such measures as local and state desig-

nations of blighted areas, creation of new zoning districts

and regulatory boards, extensive financial investments by

the City in infrastructure renovation, and institution of

mandatory property maintenance requirements. The chal-

lenged Ordinance No. 81-292, adopted in September

1981, was part of this effort. It provides that adult thea-

ters and bookstores shall be permitted as a matter of right

in BA zoning districts provided certain objective spacing

limitations are met. No special approval is required in BA

districts. The ordinance additionally provides for location

in other zoning districts by special exception granted by

the City Commission based upon specific findings. A ten

year amortization period is provided for the abatement of

existing nonconforming uses. The definition of adult the-

ater encompasses the presentation of topless and nude

dancers.

In October 1981, the City enacted Ordinance No.

81-334 which prohibited nude or semi-nude activity in

establishments serving alcoholic beverages.

For some years prior to the enactment of the ordi-

nances, petitioners owned and operated nightclubs in the

City which served alcoholic beverages and featured top-

less dancers. None of their establishments was in a BA

zoning district. Except for a six month period in 1983

when the Red Garter Club (one of petitioners’ businesses)

was involuntarily closed due to drug law violations, peti-

tioners elected to continue serving alcohol in their estab-

lishments. Consequently, they voluntarily abandoned

their nonconforming uses as adult theaters.

In late 1985 and early 1986, after the Florida Supreme

Court had upheld Ordinance No. 81-334 against constitu-

tional challenges, City of Daytona Beach v. Del Percio, 476

So.2d 197 (Fla. 1985), petitioners made some inquiries to

the City concerning a desire to cease serving alcohol at

their businesses and begin the presentation of nude

entertainment. The City replied that the businesses were

not in the proper zoning district for that use. None of the

petitioners requested a special exception under the

waiver provisions of Crdinance No. 81-292.

In February 1986, petitioners filed a Complaint in the

United States District Court for the Middle District of

Florida seeking preliminary and permanent injunctions

against the enforcement of Ordinance No. 81-292, and a

declaration that the ordinance is unconstitutional. The

court denied pre’iminary injunction in March 1986, in

part on grounds that petitioners had failed to exhaust the

administrative remedy of applying for an exception.

A bench trial was held in June 1987. At trial peti-

tioners acknowledged they still had made no effort to

apply for an exception. They did not present any evi-

dence that they had attempted to locate anywhere in the

City other than on the sites currently occupied by their

bars. The only competent evidence! before the court as to

opportunities for adult theaters to locate or relocate after

amortization was that the ordinance, when applied by the

City’s zoning official to existing zoning and uses, pro-

vided twelve new sites within the City and that eight of

these could be used concurrently.

Petitioners state there was “no dispute” at trial as to

the vagueness of the ordinance. In support of this factual

statement, petitioners quote extensively from the trial

testimony of Fred Holmes, a City zoning official. Several

' Petitioners presented the testimony of a private investi-

gator that, in his opinion, the twelve sites designated by the

zoning official did not meet the criteria of the ordinance. The

court rejected his opinion based on the witness’s lack of exper-

tise or knowledge in the apyication of the City’s zoning

ordinance.

pages are devoted to Mr. Holmes’ testimony regarding

the interpretation of “public or semi-public place off]

assembly where large numbers of minors travel or con-

gregate”. In sum, he testified that he utilized a definition

of this term contained in the Life Safety Code also

adopted by the City, and that provision was included in

the record.

With respect to the term adult theater, petitioners set

forth the following excerpt from Mr. Holmes’ testimony

under cross-examination:

Q. Would it matter to your office if the totally nude

entertainment was not harmful to minors?

A. I don’t know what harmful to minors would be.

I'm not an expert in that field.

Q. In fact, Mr. Holmes, is it not your opinion that

any exposure of the female breast is activity which is

harmful to minors?

A. No.

Q. Is any exposure of the human female breast in

connection with a stage performance adult

entertainment?

A. Yes.

Petitioners did not provide the Court with the remainder

of that exchange, which continues:

Q. And that in and of itself requires the business to

be in a BA zone?

A. Yes.

Q. Regardless of how short a duration the exposure

takes? Say five seconds?

A. If it’s billed primarily as adult entertainment, it

would be considered - (emphasis supplied)

| . : . . 4 L] lew _

In order to fairly understand Mr. Holmes’ testin

following should also be considered

(Still under cross-examination)

Q. When you made determinations in the past as t

whether a business was or was not an adult theater

for purposes of this ordinance, did you do so bas

on that language [definition of adult theater

tained in the ordinance]?

A. You implied that I made them in the past

haven't because no one has ever requested

what they intended to do

QO. Are you saying you have never had a

application submitted ?

A. Never had a formal application submitted

Sir.

Counsel then questioned Mr. Holmes about his writ

ten response to a letter from the attorney for the Shingle

Shack, one of petitioners’ businesses. The letter requested

licensing information for a business described as present

ing “nonobscene constitutionally protected striptease and

nude female dancers”. Mr. Holmes had indicated that

“adult theater zoning” was required

Q. And where did you get the - How did you make

the decision that they weren’t [permitted to operate

in the zoning district]?

A. Nude female dancers.

Q. Okay. And tl at’s all it took in your mind, is that

correct?

A. That’s correct.

Q. And it didn’t make any difference to you if the

nudity was harmful to minors, correct?

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The ordinance defines adult theater as a use exhibit

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nudity, sexual conduct, sexual excitement, or sado

;

istic abuse and is harmful to minors, all as defined

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In their petition to this Court, petitioners make other

claims which are entirely outside the trial record, flagrant

distortions of fact, or outright lies. These claims are an

undisguised effort to attack evidence as to the City’s

goals and commitment to redevelopment, which peti-

tioners did not even attempt to refute at trial. After

thoroughly examining the record, the City advises this

Court that there is absolutely no record evidence or infer-

ence of any sort about the number of alcoholic beverage

licenses in the City, about the Daytona International

Speedway, Spring Break, or Bike Week. In particular,

petitioners’ claim that the City opens its arms to an

annual gathering of “thousands of ‘Hell’s Angels’ motor-

cyclists” is patently untrue.

There is a report in the record, which pre-dates the

adoption of the ordinance, identifying twenty “sexually

oriented” businesses existing in 1981. There is no evi-

dence regarding how many of these actually were regu-

lated by the ordinance, or exactly how many have closed.

The evidence was that several of them closed after RICO

charges were filed by the State, and that none of them

closed by operation of the ordinance. Numerous bars, includ-

ing those of petitioners, which offer “exotic dancers” as

entertainment and were among the twenty businesses

listed, continue to operate within the City under the

regulation of Ordinance No. 81-334 prohibiting nudity in

bars.

After hearing the evidence, the District Court issued

an unreported opinion finding the ordinance constitu-

tional in all respects. The vagueness challenges were

dismissed without comment, except in regard to peti-

tioners’ failure to exhaust administrative remedies. The

decision was affirmed per curiam without opinion by the

Court of Appeals for the Eleventh Circuit, citing’ 11th

Circuit Rule 36-1 that an opinion would have no prece-

dential value. See, Appendix A.

The ordinance was properly analyzed by the District

Court as a time, place, and manner restriction under City

of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct.

925, 89 L.Ed.2d 29 (1986). Such an ordinance is permis-

sible where it serves a substantial governmental interest

and does not unreasonably limit alternative avenues of

communication. The trial court found that the ordinance

currently provided twelve available sites for the location

of adult businesses in the City. The trial court’s findings

of fact should not be disturbed unless clearly erroneous.

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

+

SUMMARY OF THE ARGUMENT

I. The standard which an adult business zoning

ordinance must meet in order to pass constitutional mus-

ter is not whether it leaves the availability of sites “virt-

ually unrestricted” as proposed by petitioners. Renton

made it clear all that is required is that petitioners not be

denied a reasonable opportunity to open and operate an

adult theater.

The inquiry under Renton as to whether a particular

limitation is unreasonable must be made in the context of

the conditions which exist in the particular community.

The challenged ordinance does have the effect of provid-

ing a limited number of sites for the location of adult

theaters and bookstores within the City. However, the

facts presented to and accepted by the court in this case

showed that the City enacted the ordinance as one mea-

sure in a comprehensive redevelopment program calcu-

lated to combat blight prevalent in the community, and

there was no indication that the twelve available new

sites would not meet the demands of the community for

access to such uses. In light of these facts, the twelve sites

available to petitioners are not an unreasonable restric-

tion of their First Amendment rights to present nude

entertainment.

I]. The ordinance is not vague as applied to these

petitioners, and this is not an appropriate case in which

to employ the overbreadth doctrine to allow them to

litigate the rights of persons not before the court. Peti-

tioners have not been affected by any of the terms which

they allege are vague. They propose businesses clearly

10

within the ordinance’s definition of adult theater at loca-

tions which are not in permitted zoning districts. They

have not attempted to obtain a special exception, the

provisions for which are virtually identical to those in the

Detroit ordinance which this Court refused to strike

down in Young v. American Mini Theatres.

Since there is no vagueness in the provisions of the

ordinance as applied to these petitioners, they have no

standing to raise the issue.

,

_

ARGUMENTS SUPPORTING DENIAL

OF THE WRIT

I. THE FINDING THAT ORDINANCE NO. 81-292

DOES NOT UNCONSTITUTIONALLY

RESTRICT PETITIONERS’ FIRST AMEND-

MENT RIGHTS AND PROVIDES ADEQUATE

AND REASONABLE LOCATIONS FOR THE

EXPRESSION OF NUDE DANCING WITHIN

THE CITY DOES NOT CONFLICT WITH ANY

POST-RENTON DECISIONS.

This Court first upheld an adult business zoning

ordinance in Young v. American Mini Theatres, Inc., 427 ,

U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), where it was

determined that zoning ordinances designed to combat

the undesirable secondary effects of sexually oriented

businesses are to be reviewed as content-neutral time,

place, and manner regulations. The test to be applied in

analyzing such an ordinance, however, was clearly set

out in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,

106 S.Ct. 925, 89 L.Ed.2d 29 (1986), ten years later. There

it was held, first, the ordinance must serve a substantial

1]

governmental interest, and second, it must allow for rea-

sonable aiternative avenues of communication. Id., at 50,

S.Ct. at 930. The Court further announced guidelines in

determining the second prong of this test which had not

been discussed in American Mini Theatres. Renton, at

53-54, S.Ct. at 932.

In attempting to establish conflict certiorari, peti-

tioners cite numerous cases decided by the federal courts

after American Mini Theatres, but prior to Renton. These

earlier cases decided without the benefit of Renton are of

no value in determining conflict.

The Fifth, Sixth, Ninth, and Eleventh Circuits have

issued post-Renton opinions dealing with the reasonable-

ness of alternative avenues of communication provided

by adult business zoning ordinances. A review of these

cases does not reveal any clear conflict with the decision

which is the subject of this petition.

The District Court’s Order upholding the City’s ordi-

nance was affirmed without opinion by the appellate

court. The District Judge relied almost exclusively on

Renton and an Eleventh Circuit case, International Food &

Beverage Systems v. Fort Lauderdale, 794 F.2d 1520 (11th Cir.

1986). International Food involved an adult business zon-

ing ordinance in Fort Lauderdale, Florida, a city of

156,000 inhabitants covering 31 square miles. The court

found that the ordinance would allow as many as 22 sites

and stated:

We are at a loss how anyone could determine that as

many as 22 sites for such bars were not enough,

without reference to community needs, the incidence

of nude bars in other comparable communities, the

goals of the city plan, and the kind of city the plan

12

works towards. Justice Rehnquist does not say the

city may not “limit alternative avenues of communi-

cation,” but only that it may not limit them “unreas-

onably.” What is reasonable cannot be ascertained by

reference to nothing except the wishes of the nude

bar proprietors.

Ee eb

The ordinances here challenged should have been

tested by reference to the entire zoning scheme of

which they were meant to be a part, not as an iso-

lated whim of the commissioners, ***

Id., at 1526, 1527. The Eleventh Circuit remanded the case

to the trial court for reconsideration in light of Renton. It

was eventually decided on other grounds. International

Food & Beverage Systems v. Fort Lauderdale, 664 F.Supp. 482

(S.D.Fla. 1987).

The Ninth Circuit, in its first application of Renton,

made a similar observation concerning the context in

which an adult business zoning ordinance should be

judged: “The availability of alternative sites must be con-

sidered in light of the ordinance’s purpose and design”.

Walnut Properties, Inc. v. City of Whittier, 808 F.2d 1331,

1337 (9th Cir. 1986). It, too, ordered remand in light of

Renton. The case made its way back to the appellate court

in 1988, Walnut Properties, Inc. v. Whittier, 861 F.2d 1192

(9th Cir. 1988), cert. denied, __ U.S. __, 57 USLW 3653

(1989), and the Ninth Circuit found that the ordinance

did deny Walnut a reasonable opportunity to operate its

theater within the city.

Walnut invoived an ordinance similar to the City’s.

The ordinance was dealt with in terms of the number of

PE

13

sites available for the location of the regulated busi

nesses. While a definite number of sites was not estab

lished in the case, the court indicated there were

“significantly” less than twelve and probably a range of

two to four. Id., at 1109. A second major concern of the

court was its understanding that the Whittier ordinance

would “force the only existing adult theater in Whittier to

close at its present location with no definite prospect of a

place to relocate.” /d., at 1110. That is not the situation in

this case. First, petitioners do not operate adult theaters

in the City.2 They wish to convert their existing bars into

Petitioners have at all times operated bars featuring

female “exotic dancers” as entertainment. At the time the

zoning ordinance was enacted in September 1981, the dancers

were performing topless. The topless performances brought

their establishments within the definition of adult theater in the

ordinance. As long as they continued to operate as adull

theaters, petitioners’ businesses were entitled to remain at

their nonconforming locations for the ten year amortization

period.

In October 1981 Ordinance No. 81-334 was enacted. This

ordinance prohibited nudity in establishments serving alcohol

After the enactment of this ordinance, petitioners chose to

continue serving alcohol. By this choice, petitioners abandoned

the use of adult theater as defined in the ordinance (or, as

petitioners prefer to call it, “adult nightclub”). The zoning

ordinance provides that a nonconforming use cannot be rees

tablished as a matter of right after abandonment for nine

months.

If petitioners had chosen, either in October 1981 or any

time during the following nine months, to cease serving alco

hol and to present nude or topless dancers, they would have

been entitled to continue under the amortization provision

14

adult theaters. Second, the City’s ordinance provides a 10

year amortization period during which any affected

establishment may arrange for relocation or waiver.

Third, there are currently twelve available sites within

the City which would accomodate the proposed use as

compared to between two and four in Whittier. Peti-

tioners did not establish any impediment to the location

of their proposed businesses on the available sites, only

that they wished to establish them at the sites of their

existing bars. And finally, the Whittier ordinance was not

supported by the kind of evidence offered by the City

here regarding its extensive redevelopment project.

The Sixth Circuit case, Christy v. City of Ann Arbor,

824 F.2d 489 (6th Cir. 1987), cert. denied, _ U.S. __, 108

S.Ct. 1013, 98 L.Ed.2d 978 (1988), was also remanded. The

trial court had relied primarily on the ordinance’s appli-

cation only to businesses with more than 20 percent adult

wares in holding that the ordinance was “not greatly

restrictive of first amendment rights”. Id., at 492. The

Sixth Circuit directed the District Court to determine

whether the ordinance “severely” restricted expression in

terms of the locations available for strictly adult book-

stores. Id.

The Fifth Circuit has heard two cases raising, inter

alia, the issue of whether reasonable alternative avenues

of communication exist: SDJ, Inc. v. City of Houston, 837

F.2d 1268 (5th Cir. 1988); and FW/PBS, Inc. v. City of

Dallas, 837 F.2d 1298 (5th Cir. 1988). In both cases the

court found the available sites sufficient to meet Renton

requirements. The court indicated Houston’s ordinance

at least 100’ and perhaps up to ‘tens of

44a

would allow

15

thousands’ ” of sites in the city. 837 F.2d 1277. The opin-

ion in FW/PBS does not specify the number of locations

available, only that the ordinance “allows reasonable

alternative avenues of communication.” 837 F.2d 1303.

Petitions for certiorari were filed in both cases on this

and other issues. This Court granted jurisdiction in FW/

PBS only in regard to those issues involving licensing

requirements, U.S. , 109 S.Ct. 1309 (1989), and

denied the petition in SDJ, sub. nom. M.E.F. Enterprises,

Inc. v. City of Houston, US. , 109 S.Ct. 1310 (1989).

Upon a review of current reported opinions, it is

evident that the District Court’s unreported Order in this

case, affirmed per curiam without opinion by the Eleventh

Circuit Court of Appeals, is entirely in accordance with

Renton and later rendered opinions of the Circuit Courts.

Il. THE PROVISIONS OF THE CHALLENGED

ORDINANCE ARE SUFFICIENTLY CLEAR

AND UNAMBIGUOUS TO MEET CONSTITU-

TIONAL REQUIREMENTS.

Petitioners attack the terms adult theater and any other

public or semi-public place olf] assembly where large numbers

of minors regularly travel or congregate as being so vague

that they render the ordinance unconstitutional.

The definition of adult theater in the ordinance incor-

porates §847.013, Fla. Stat., Appendix B, and provides

that it is a use to which admission of minors is unlawful

under that state statute. All terms used are specifically

defined in §847.013(1). The constitutionality of §847.013

was upheld in Davison v. State, 288 So.2d 483 (Fla. 1973),

16

appeal denied, 415 U.S. 943, 94 S.Ct. 1463, 39 L.Ed.2d 560

(1974).

In support of their contention that adult theater is a

vague term, petitioners rely on the testimony of Fred

Holmes. As set forth in the preceding statement of the

case, Mr. Holmes’ testimony shows that he never had the

opportunity to apply the definition of adult theater except

in response to an informal request concerning “striptease

and nude female dancers”. Clearly that description came

within the definition. If and when Mr. Holmes is required

to make this determination in a less clear case, and not

under the pressure of cross-examination, he would be

able to avail himself of the normal resources of the City,

including legal counsel.

Mr. Holmes testified that he used a definition con-

tained in the City’s Life Safety Code to determine the

application of the term any other public or semi-public place

olf] assembly where large numbers of minors regularly travel

or congregate. In essence, this language is a trade term

with a universally accepted meaning. See, e.g., §§301.1(1),

302.1, The BOCA National Building Code 1987, 10th Edi-

tion, Building Officials & Code Administrators Interna-

tional, Inc.; §8-1.3, Life Safety Code, 1988 Edition, National

Fire Protection Association, Inc.; §404.1.2, Standard Build-

ing Code, 1988 Edition, Southern Building Code Congress

International, Inc.; §402, Uniform Building Code, 1988 Edi-

tion, International Conference of Building Officials;

Appendix C-F. Mr. Holmes’ interpretation is entirely con-

sistent with the nationally accepted standard in regard to

consideration of the building usage and the number of

persons being 50. In any event, petitioners’ complaint is

17

that they have not been permitted to establish adult

theaters in their current business locations. The reason

they cannot do so is that none of these locations is in a

BA zoning district. The distance restriction concerning

travel or congregation of minors has not been applied to

petitioners — they are simply in the wrong districts

[he Supreme Court relegated vagueness challenges

raised in Renton to a footnote

We reject respondents’ “vagueness” argument for the

same reasons that led us to reject a similar challenge

in American Mini Theatres, supra. There, the Detroit

ordinance applied to theaters “used to present mate

rial distinguished or characterized by an emphasis on

[sexually explicit matter].” 427 U.S., at 53, 96 S.Ct., at

2444. We held that “even if there may be some uncer

tainty about the effect of the ordinances on other

litigants, they are unquestionably applicable to these

respondents.” /d., at 58-59, 96 S.Ct., at 2446. We also

held that the Detroit ordinance created no “signifi

cant deterrent effect” that might justify invocation of

the First Amendment “overbreadth” doctrine. Id., at

59-61, 96 S.Ct., at 2446-2448

Renton, 475 U.S. at 55 n.4, 106 S.Ct. at 933

Petitioners also describe the standards for the City

Commission’s granting of a special exception as “blat

antly unconstitutional”, and cite in support cases which

deal with the constitutionality of subjecting first amend

ment activities to a prior restraint This is not a prior

restraint situation

Petitioners need not meet the criteria of the special

exceptiqn in order to exercise their first amendment

rignts to present nude dancing. They may locate their

_ . ' —s eo . vrAt im a . | .

pre posed businesses as a matter of right inan one of tne

18

twelve locations found available by the trial court. There

is no prior restraint on the expression of nude dancing in

the City. It is only if petitioners wish to locate such a

business outside of an appropriately zoned area, or con-

trary to the locational restrictions, that the waiver criteria

come into play. The City Commission authorized itself to

grant special exceptions in the case of adult theaters as a

means of providing additional opportunities for their

establishment. The criteria for granting a special excep-

tion include required findings that the public interest and

the spirit and intent of the ordinance be observed. §§ 51.3

and 51.1, Ordinance No. 81-292, Petitioners’ App. A-3,4,5.

These are the kind of criteria generally held sufficient to

sustain the validity of a special exception provision.

Annotation, Zoning — Delegation of Authority, 58 A.L.R.2d

1083.

Similar vagueness issues were raised in Young v.

American Mini Theatres, Inc.: (1) that it could not be deter-

mined from the definition how much presentation of

sexual activity or exposure would subject a business to

the zoning restriction, and (2) that the provisions for

obtaining a waiver of the 1,000-foot restriction did not

specify adequate procedures or standards. The findings

required in the Detroit ordinance before a waiver could

be granted were virtually identical to the special excep-

tion criteria in the City’s ordinance. As is the case here,

no attempt had been made to utilize the waiver provi-

sion. The Court held:

We find it unnecessary to consider the validity of

either of these arguments in the abstract. For even if

there may be some uncertainty about the effect of the

ordinances on other litigants, they are unquestion-

ably applicable to these respondents. The record

19

indicates that both theaters propose to offer adult

fare on a regular basis. Neither respondent has

alleged any basis for claiming or anticipating any

waiver of the restriction as applied to its theater. It is

clear, therefore, that any element of vagueness in

these ordinances has not affected these respondents.

To the extent that their challenge is predicated on

inadequate notice resulting in the denial] of pro-

cedural due process under the Fourteenth Amend-

ment, it must be rejected. (footnote ommitted)

Id., at 58-59, S.Ct. at 2446-2447.

In rejecuing the respondents’ argument that they had

standing to raise the vagueness issue under the first

amendment overbreadth doctrine, the Court said:

Id.,

For most films the question [whether they are subject

to the ordinance] will be readily answerable; to the

extent that an area of doubt exists, we see no reason

why the ordinances are not “readily subject to a

narrowing construction by the state courts.” Since

there is surely a less vital interest in the uninhibited

exhibition of material that is on the borderline

between pornography and artistic expression than in

the free dissemination of ideas of social and political

significance, and since the limited amount of uncer-

tainty in the ordinances is easily susceptible of a

narrowing construction, we think this is an inap-

propriate case in which to adjudicate the hypotheti-

cal claims of persons not before the Court.

at 61, S.Ct. at 2448.

The terms contained in the City’s ordinance are suffi-

ciently clear to meet constitutional standards. Further-

more, since petitioners here have not been affected by

any alleged vagueness in the City’s zoning ordinance,

and the alleged vagueness is readily susceptible to a

20

narrowing construction by the state courts, this argument

must be rejected.

,

CONCLUSION

The rulings below are squarely based on Renton, and

do not conflict with any decisions of this Court or the

Circuit Courts of Appeals.

Respectfully submitted,

OFFICE OF THE CITY ATTORNEY

THE CITY OF DAYTONA BEACH

P.C. Box 551

Daytona Beach, Florida 32015

(904) 258-3195

FRANK B. Gumney, III

City Attorney

Counsel of Record

Marie HARTMAN

Assistant City Attorney

A

INDEX TO APPENDIX

Et Circuit Make SG-1 .. . 6 ck ccc ec ev ucce App.

§847.013, Florida Statutes (1987) ........... App.

§§301.1(1), 302.1, BOCA National Building

Code 1987, 10th Edition, Building Officials &

Code Administrators International, Inc. ... App.

§8-1.3, Life Safety Code, 1988 Edition,

National Fire Protection Association, Inc. . App.

§404.1.2, Standard Building Code, 1988 Edi-

tion, Southern Building Code Congress

TROT, SOS. vo cnc ev eec Dame ueeers App.

§402, Uniform Building Code, 1988 Edition,

International Conference of Building Offi-

Ry Fir oe aero NC UALR ROT SEY LTT oat, 024 App.

Nm

6

~

App. 1

APPENDIX A

lith Cir.R. 36-1 Affirmance

Without Opinion

When the court determines that ar

circumstances exist:

ly of the following

(a) judgment of the district court is based «

fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient;

(c) tke order of an administrative agency is supported bi

substantial evidence on the record as a whole;

(d) summary judgment, directed verdict

’

Yrdict, Or judgment On

the pleadings is supported by the record

(e) judgment has been entered without an error of law;

and an opinion would have no precedential value, the judg

ment or order may be affirmed or enforced without opinion.

* + %

[1.0.P—Opinions.

a

Opinions that the panel believes to have no prece

dential value are not published. All non-published opin-

ions and affirmances without opinion under 11th Cir.R.

36-1 are printed in table form in the Federal Reporter

(See for example 791 F.2d 170). Although unpublished

opinions may be cited-as precedent, this is looked upon

with disfavor by the Court. If cited, a copy should be

attached to or incorporated within the motion. brief or

petition in which such citation is made

App. 3

APPENDIX B

§847.013, Florida Statutes (1985)

847.013 Exposing minors to harmful motion pic-

tures, exhibitions, shows, presentations, or representa-

tions.—

(1) DEFINITIONS.-—As used in this section:

(a) “Minor” means any person under the age of 18

years.

(b) “Nudity” means the showing of the human male

or female genitals, pubic area, or buttocks with less than

a full opaque covering; the showing of the female breast

with less than a full opaque covering of any portion

thereof below the top of the nipple; or the depiction of

covered male genitals in a discernibly turgid state.

(c) “Sexual conduct” means acts of masturbation;

homosexuality; sexual intercourse; physical contact with

a person's clothed or unclothed genitals, pubic area, but-

tocks, or, if such person is a female, breast or any act or

conduct which constitutes the commission of the abomi-

nable and detestable crime against nature or suggests

that such crime is being or will be committed.

(d) “Sexual excitement” means the condition of

human male or female genitals when in a state of sexual

stimulation or arousal.

7,

(e) “Sadomasochistic abuse’

torture by or upon a person clad in undergarments, a

means flagellation or

mask, or bizarre costume or the condition of being fet-

tered, bound, or otherwise physically restrained on the

part of one so clothed.

App. 4

(f) “Harmful to minors” means that quality of any

description, exhibition, presentation, or representation, in

whatever form, of nudity, sexual conduct, sexual excite-

ment, or sadomasochistic abuse when it:

1. Predominantly appeals to the prurient, shameful,

or morbid interest of minors,

2. Is patently offensive to prevailing standards in

the adult community as a whole with respect to what is

suitable for minors, and

3. Is without serious literary, artistic, political, or

scientific value for minors.

a * +

(2) OFFENSES AND PENALTIES.-

(a) It is unlawful for any person knowingly to

exhibit for a monetary consideration to a minor or know-

ingly sell to a minor an admission ticket or pass or

knowingly admit a minor for a monetary consideration to

premises whereon there is exhibited a motion picture,

exhibition, show, representation, or other presentation

which, in whole or in part, depicts nudity, sexual con-

duct, sexual excitement, or sadomasochistic abuse and

which is harmful to minors.

2/ 7 27)9 r/ Ala Dp 1O7

S$5U | 1] WIL l, BOC 1 Vational Bu at? (

? ? ’. Aenteat .

Edition, Building Officials & Code Administrator

International, In«

SECTION 301.0 CLASSIFICATION

301.1 General: All buildings and structures sh;

fied with respect to use in one of the use groups listed

r :

below

Use Group A assembly (see Section 302

5 ? 2 ?

Z [ S¢ Group B Dusiness (see Sec - a )

> y ’ 5 4

? LU Sf (,roup |! educati« nai Ser sé { Nn U4

4 { | - ~ rr rial

} Use Group F factory and industrial (see Sex

tion 305.0)

) | S¢ (,rounp H nign hazard see Section 306

" | , “7

6 Use Group | institutional (see Section

mg [J ) ( } NA nercantil f ee ty 202

/ Se soup M mercantile (see ection 3 U)

»

8. Use Group R_ residential (see Section 309.0)

9. Use Group S storage (see Section 310.0)

10 Use Group [ utility and miscellaneous (see

Section 311.0)

SECTION 302.0 USE GROUP A. ASSEMBLY USES

302.1 General: All buildings and structures, or parts

thereof, shall be classified in Use (¢ sroup A which are used

or designed for the gathering together of persons for

A pp 6

soses such as civic, social or religious functions, rec

reation, food or drink consumption or awaiting transpor

tation. A room or space used for assembly purposes by

+

less than 50 persons and which is accessory to another

} +? son

pe 1M udaded

as a part of that main uss

App

APPENDIX D

$8-1.3, Life Safety Code, 1988 Edition, National Fire

Protection Association, Inc

8-1.3 Special Definitions

Assembly Occupancies. Include, but are not limited

to, all buildings or portions of buildings used for gather

ing together 50 or more persons for such purposes as

deliberation, worship, entertainment, dining, amusement,

Or awalting transportation

App. 8

APPENDIX E°

§404.1.2, Standard Building Code, 1988 Edition, Southern

Building Code Congress International, Inc.

404 ASSEMBLY OCCUPANCY - GROUP A

404.1 Scope

404.1.1 Group A occupancy is the use of a building or

structure, Or any portion

thereof, for the gathering

together of persons for purposes such as civic, social or

religious functions or for recreation, or for food or drink

consumption or awaiting transportation.

404.1.2 Group A occupancy shall include, among others,

the following:

Amusement Park Buildings

Auditoriums

Churches

Dance Halls

Gymnasiums

Restaurants that

accommodate 50 or more

people, or provide

dancing or entertainment

Motion Picture Theaters

Museums

Passenger Depots

Public Assembly Halls

Recreation Halls

Stadiums and Grandstands

Tents for Assembly

Theaters for Stage

Production

$402, Uniform Building Code, 1988 Editio1 rna

Conference of Building Officia

ASSEMBLY BUILDING is a building or portion of a

building used for the gathering together of 50 or mor

persons for such purposes as deliberation, educa

instruction, worship, entertainment, amusement. drink