Opposition Brief — Citrus County v. Redner

NO \

LeRK

In |

SUPREME COURT OF THE UNITED STATES

() lern YQ

()

oat COUN ORIDA

I O

IC] REDNER LHOMAS GEORGI SECCHIARI.

PHYLLIS PATRICK. TAMMY BENARD. and AMANDA

OLIVER

()

Petition for Writ of Certiorari to

(he United States Court of Appeals

for the Eleventh Circuit

()

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

()

l uke ( / ror, Esquire

PHOMAS C. LITTLE, P.A.

+ N.I Coachman Road

Ss C \

: ¢ I () { +46

/ 4s) + \ }

\I () ¢ ) t Tt 1deE

QUESTIONS PRESENTED

[. Whether the Full Faith and Credit Act, 28

U.S.C. § 1738, requires the federal courts (below), where

Respondents challenged two adult-entertainment licensing

ordinances on the same constitutional grounds to accord to

the identical provisions of a successor, permanent licensing

ordinance, containing a severability clause, the same

preclusive effect, under Florida law, from a final judgment

of the Florida courts, which upheld the constitutionality of

the earlier, temporary, licensing ordinance, even in light of

the clear facial unconstitutionality of the ordinance.

[1. Whether under the Rooker-Feldman doctrine, the

federal courts (below) lack jurisdiction to consider

Respondents’ challenges to the constitutionality

provisions in a successor, permanent adult-entertainment

licensing ordinance, when the ordinance presented to the

State courts was a different ordinance and was never

considered by the highest state court

LIST OF PARTIES

PETITIONERS

Appellees in the Eleventh Circuit Court of Appeals

CITRUS COUNTY, FLORIDA, a municipal corporation

CHARLES S. DEAN, individually and as Sheriff of Citrus

County, Florida

SKIP HUDSON, acting Citrus County Commissioner sued

individually *

ALEX GRIFFIN, acting Citrus County Commissioner sued

individually *

WILLIAM F. BROSKA, acting Citrus County

Commissioner sued individually*

JOHN BARNES, acting Citrus County Commissioner sued

individually *

NICK BRYANT, acting Citrus County Commissioner sued

individually

WAYNE WEAVER, current Citrus County Commissioner

CHESTER WHITE, SR., current Citrus County

Commissioner

WILBUR LANGLEY, SR., current Citrus County

Commissioner

GARY BARTELL, current Citrus County Commissioner

itl

RESPONDENTS

Appellants in the Eleventh Circuit Court of Appeals

JOE REDNER

THOMAS GEORGE SECCHIARI

PHYLLIS PATRICK

TAMMY BENARD

AMANDA BENARD OLIVER

*Pursuant to Supreme Court Rule 40.3, Commissioners Hudson, Griffin, Broska. and

Barnes will be replaced in their official capacity in this case by their successors in office

Wayne Weaver, Chester White, Sr.; Wilbur Langley, Sr.; and Gary Bartell. acting

Commissioners. Petitioners did not list these individuals as parties

—

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

LIST OF PARTIES i

| TABLE OF AUTHORITIES Vi

OPINIONS BELOW 2

JURISDICTION 2

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES INVOLVED 3

STATEMENT OF THE CASE 5

WHY THE WRIT SHOULD BE DENIED 14

I. THE FULL FAITH AND CREDIT

ACT, 28 U.S.C. § 1738, IS

MISAPPLIED BY PETITIONER

AND DID NOT REQUIRE THE

COURT OF APPEALS TO

AFFIRM THE LOWER COURT'S

INVOCATION OF ABSTENTION. 14

A. The District Court’s Abstention

From The Merits Of Respondents’

Challenges To 88-05 And 88-06

Was Improper. 14

B. The State Court Judgment On

Respondents’ Constitutional

Challenges To 88-05 Does Not

Preclude Challenges To The

Provisions Of 88-06. aa

Il. THE COURT OF APPEALS

PROPERLY REJECTED THE

PETITIONER’S ARGUMENT THAT

THE ROOKER-FELDMAN DOCTRINE

REQUIRES ABSTENTION OF

RESPONDENTS’ CONSTITUTIONAI

CHALLENGES TO THE

PROVISIONS OF 88-06. 22

CONCLUSION 30)

V1

TABLE OF AUTHORITIES

Authority Page

Allen v. Allegheny Co., 196 U.S. 458, 25 S.Ct.

311, 49 L.Ed. 551 (1905) 29 ~

ASARCO, Inc. v. Kadish, 490 U.S. 605. 109

S.Ct. 2037, 104 L.Ed.2d 696 (1989) 29

Avalon Cinema Corp. v. Thompson, 677 F.2d

659 (8th Cir. 1981) 17, 18

Barnes v. Glen Theater, 59 U.S.L.W. 4745,

111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) 17

Ballard v. Wilson, 857 F.2d 1568

(Sth Cir. 1988) 24

Bantam Books, Inc. v. Sullivan, 372 U.S. 58,

83 S.Ct. 631, 9 L.Ed.2d 584 (1963) 25

| Blount v. Rizzi, 400 U.S. 410 (1971) 27

California v. LaRue, 409 U.S. 109, 93 S.Ct.

390, 34 L.Ed.2d 3342 (1972) 17

Cotton States Mutual Ins. Co. v. Anderson,

749 F.2d 663 (11th Cir. 1984) 23

District of Columbia Court of Appeals v.

Feldman, 460°U.S. 462, 103 S.Ct. 1303,

75 L.Ed.2d 206 (1983) 29

Authority Page

Dombrowski v. Pfister. 380 U.S. 479. 85

EG & B 1116 (1965) 2

Doran v. Salem Inn, Inc., 42 U.S. 922.

95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) 15

Ielrod v. Burns. 427 5». 347, 96 S.Ct.

2673 (1976) 2)

l'reedman \ Maryland, 380 U.S. 51 (1965) Pa Se

'reehling v. MGIC Financial Corp., 437

$0.2d 191 (Fla. 4th DCA 1983) 23

I! W/PBS v. City of Dallas, 493 U.S. 215 (1990) 12. 19

5 | Ss

é

Hicks v. Miranda, 42 U.S. at 349. 95 S.@

2281, 45 L.Ed.2d 2223 (1975) %

Huffman v. Pursue, 420 U.S. 592. 95 S$ (1

1200, 43 L.Ed.2d 482 (1975)

1.A. Durbin, Inc. v. Jefferson National

Bank, 793 F.2d 1541] (11th Cir. 1986)

Johnson v. New York Life Ins. Co.. 187 U.S

491, 23 S.Ct. 194, 47 L.Ed. 273 (1903) }

Kremer v. Chemical Construction ¢ Orp., 45¢

U.S. at 483, 102 S.Ct. at 1898 22, 24

Vill

Authority Page

Kugler v. Helfant, 421 U.S. 117, 95 S.Ct.

1524, 44 L.Ed.2d 15 (1975) 16

McDonald v. City of West Branch, Mich., 466 U.S.

284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) 2

Migra v. Warren City School District, 465

U.S. 75, 104 S.Ct. 892, 70 L.Ed.2d 56 (1984) 22

Mobile Oil Corp. v. Shevin, 354 So.2d 372

(Fla. 1977) 3

Morgan v. City of Rawlins, 792 F.2d 975

(10th Cir. 1986) 28

National Socialist Party v. Skokie, 432 U.S.

43 (1977) 27

New_York Times Co. v. United States, 402 U.S.

713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (194]) 25

11126 Baltimore Blvd. v. Prince George’s

County, Maryland, 110 S.Ct. 2580 (1990) 19

Parsons Steel, Inc. v. First Alabama Bank,

474 U.S. at £ ©, 106 S.Ct. at 772 22

Pennzoil Company v. Texaco, Inc., 481 U.S. 1,

107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) 15

Provau v. State Farm Mutual Automobile Ins.

Co., 772 F.2d 817 (11th Cir. 1985) 23

Authority Page

R&S Partnership v. Martin Schaffel Enterprises,

Inc., 529 So.2d 794 (Fla. 3d DCA 1988) 23

Redner v. Citrus County, 919 F.2d 646

(11th Cir. 1990) | 2, 16

Rooker v. Fidelity Trust Company, 263 U.S. 413

44 S.Ct. 149, 68 L.Ed. 362 (1923) 29

Samuels v. Mackell, 401 U.S. 66. 91 S.Ct.

764, 27 L.Ed.2d 688 (1971) 1S

Schad v. Mt. Ephraim, 452 U.S. 61, 101

S.Ct. 2176, 68 L.Ed.2d 671 (1981)

seaboard Coastline R.R. Company v. Cox,

338 So.2d 190 (Fla. 1976) 23

S.b.L. Maduro (Fla.), Inc. v. M/V_ Antonio

de Gastaneta, 83 F.2d 1477 (11th 1987) 23

Sendak v. Nihiser, 431 U.£. 961. 97 S.Ct

2914, 53 L.Ed.2d 1057 (1977) pa

Shuttlesworth v. City of Birmingham, 394 U.S.

147, 89 S.Ct. 935 (1971)

754 Orange Ave. v. City of West Haven, Conn..

761 F.2d 105 (1985) 19. 20)

United Books v. Conte. 739 F.2d 30

(Ist Cir. 1984) 24

Authority Page

United States v. O’Brien, 391 U.S. 367, 88

S.Ct. 1673, 20 L.Ed.2d 672 (1968) 18

Western Life Indem. Co. v. Rupp, 235 U.S.

261, 35 S.Ct. 37, 59 L.Ed. 220 (1914) 29

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746,

27 L.Ed.2d 669 (1971) 14, 15

16, 17

21, 23

Constitutional Provisions:

United States Constitution

Amendment | 3

United States Constitution

Amendment 14

re

Federal Statutes:

28 U.S.C. § 1254 2

28 U.S.C. § 1257 29

28 U.S.C. § 1738 3, 14

22, 24

42 U.S.C. § 1983 4,10

24

42 U.S.C. § 1985(3) 4,11

No. 91-307

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

CITRUS COUNTY, FLORIDA,

Petitioner,

V.

JOE REDNER, THOMAS GEORGE SECCHIARI,

PHYLLIS PATRICK, TAMMY BENARD, and AMANDA

OLIVER,

Respondents.

Petition for Writ of Certiorari to

The United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents, Joe Redner, Thomas George Secchiari,

Phyllis Patrick, Tammy Benard and Amanda Benard Oliver

urge this Court to deny the Petition for Writ of Certiorari

to review the judgments and opinion of the United States

Court of Appeals for the Eleventh Circuit, entered in this

proceeding on December 18, 1990, and May 20, 1991.

OPINIONS BELOW

lhe Opinions of the United States Court of Appeals for

1 Circuit are a December 18, 1990 affirmance

In part and reversal in part with remand (of the ruling by

the district court), 919 F.2d 646 (1 Ith Cir. 1990). set out

as Appendix A of the Petition: and a May 20. 1991 order

QO t

denying a motion for rehearing, set out a Appendix B of

the Petition

JURISDICTION

3

CONSTITUTIONAL, STATUTORY, AND

ORDINANCE PROVISIONS

UNITED STATES CONSTITUTION

Amendment 1

Congress shall make no law ... abridging the freedom

of speech ...

Amendment 14, Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law, nor deny to any

person within its jurisdiction the equal protections of the

laws.

UNITED STATES CODE

28 U.S.C. Section 1738

The Full Faith and Credit Act, 28 U.S.C. § 1738, is set

forth as Appendix "C" of the Petition.

4

42 U.S.C. Section 1983

Every person who, under color of any Statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding

for redress. ...

42 U.S.C. Section 1985(3)

If two or more persons in any State or Territory

conspire ... for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws ... whereby another is injured in

his person or property, or deprived of having and

exercising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an action

for the recovery of damages, occasioned by such injury or

deprivation, against one or more of the conspirators.

ORDINANCES ENACTED BY

CITRUS COUNTY, FLORIDA

Ordinance 88-OS5 and Ordinance 88-06 of Citrus

5

County, Florida are reprinted and included in their entirety

in the Appendix to the Petition in Appendices "D" and "E".

STATEMENT OF THE CASE

The Petitioner sets out a Statement of the Case which

fails to include a substantial amount of historical factual

material which is critical for this Court to adequately

consider the questions presented for review. This material

is respectfully submitted herein.

Tt is important to note that the same decision of the

Court of Appeals, which is at issue herein, is also the basis

for another Petition for Writ of Certiorari filed with this

Court (Case No. 91-316). The questions presented for

review bear some similarity, but are not identical, and the

Petitions focus on different aspects of the Court of Appeals’

decision. A proper recitation of all pertinent facts 1s still

critical for any consideration.

In early March of 1988, Respondent Redner became

interested in opening and operating an adult entertainment

establishment in Homosassa Springs, an unincorporated

community located in Citrus County, Florida. In this

endeavor, Redner investigated all applicable Citrus County

ordinances, rules, regulations and permitting requirements.

On the basis of this investigation, which included direct

inquiries to Citrus County employees regarding any such

restrictions which applied to the contemplated business,

6

Redner determined properly that there were no regulatory

obstacles in effect which would prevent him from opening

an adult entertainment establishment at a specific premises.

Redner was clear and candid in his description of the

proposed business.

On or about March 17, 1988, on the basis of this

reliance, Redner entered into a lease for the subject

. premises for eighteen (18) months, thereby incurring an

obligation of $36,000.00 for the term of the lease. At this

point in time, Redner also underiook repairs and alterations

to the premises to facilitate the presentation of performance

dance exhibitions at a cost of approximately $10,000.00.

The leased premises was located in a commercially zoned

area and was formerly a bar which served alcoholic

beverages.

In an effort to comply with all existing local

requirements to open the business, the proper agencies were

contacted in order to secure all appropriate inspections and

permits. On March 23, 1988, the premises was inspected

by the Citrus County Public Health Unit for food service

inspections and permits. <A fire inspection was also

conducted.

The proper permits were issued on March 24, 1988.

Also on that date, occupational licenses for "Dance Hall",

"Entertainment Cafe”, and one for "Merchandise Vending

Machines" were issued by the Citrus County Tax Collector

In preparation for the imminent opening of the

establishment. Redner was forthright in his description of

the business to County officials in his attempt to get all

7

proper licenses and permits. No specific occupational

license designation existed at that time relating to adult

entertainment facilities. No attempt was made to hide the

intended use of the leased premises from a..y Citrus County

employee consulted, or from the public in general.

Presumably, because of Redner’s candor and the nature of

the business, the anticipated opening of the establishment

was an event which was surrounded by extensive media

attention. No other adult entertainment facility existed in

Citrus County prior to Redner’s endeavor.

The Petitioner uses March 25, 1988 as the starting point

in the Statement of the Case contained in the Petition. It

was on this date that Redner announced he would open his

establishment. On the same date, the Citrus County Board

of County Commissioners met in emergency session and

enacted Citrus County Ordinance 88-05, an emergency

ordinance establishing licensing requirements for adult

entertainment establishments and their employees. The

nature of any alleged "emergency" is unknown other than

the anticipated opening of Redner’s use. A copy of the

ordinance is attached as Appendix "D" to the Petition.

Emergency Ordinance 88-05 imposed the requirement

that a license be obtained prior to the presentation of any

constitutionally protected expression by any _ business

deemed to be an adult use. The pertinent licensing

application required the submission of extensive information

and lengthy investigation by several administrative and law

enforcement agencies. While there was a time limit for the

granting or denial of a license, the provisions dealing with

8

the appeal of any such denial contained no time limit. The

fee for any such license was $750.00.

The ordinance also imposed similar requirements that

any employee working at any adult use establishment

similarly obtain an adult use permit to legally be employed

at any such establishment. The application requirements

were again extensive and the time limits for the granting or

denial of any application for such a permit, while limited,

had no such limitation on any appeal process of the denial

of any permit. A fee of $50.00 was required with any

application for permit.

Besides the provisions regarding licensing and

permitting contained in the ordinance, Section 2-8 stated

that, "Each licensee shall keep such records and make such

reports as may be required by the County Administrator

and the departments to implement this ordinance and Carry

Out its purpose." No limitation or definition was included

in the ordinance to clarify this provision.

Section 5 of the ordinance established criminal penalties

for any failure to comply with any provision of Citrus

County Ordinance 88-05. These penalties were

subsequently enforced on the Respondents.

In respect to any denial or revocation of a license, no

provision for judicial review appeared anywhere in

emergency Ordinance 88-05. The only appeal of any state

action occasioned by the ordinance, which resulted in

denial, was to the Board of County Commissioners, the

same body with the ultimate responsibility for the

administration of the ordinance (Section 6-1).

9

On March 29, 1988, Redner opened his establishment,

and was arrested and charged with operating an adult

entertainment establishment without a license. Two

subsequent attempts to open the establishment also resulted

in arrests.

On March 31, 1988, when Redner was arrested the

third time, bond was placed at $250,000.00. Only when

Redner agreed he would not again offer adult

entertainment, unless either a court order or a license issued

pursuant to Citrus County were obtained, was his bond

reduced and his release effected.

On May 24, 1988, the Citrus County Board of

Commissioners met in a regular session and approved

Ordinance 88-06, an adult entertainment licensing ordinance

substantially similar to 88-05, but with provisions providing

additional bases for license denial and other substantive

provisions. Ordinance 88-06 superseded Ordinance 88-05.

Also adopted on May 24, 1988, was Ordinance 88-A51,

an ordinance amending the Citrus County zoning ordinance

by establishing adult entertainment use regulations.

3ecause of Florida statutory law, a Florida political

subdivision is precluded from enacting any preclusive

zoning ordinance validly without complying with the proper

notice and hearing requirements.’ This procedure takes a

' Chapter 125, Florida Statutes, specifies the statutory requirements for the enactment

of zoning ordinances. Section 125.66(5)(b)(1) states that, “The board of county

commissioners shall hold two (2) advertised public hearings on the proposed ordinance

or resolution. Both hearings shall be held after 5:00 P.M. on a weekday, and the first

shall be held approximately seven (7) days after the day that the first advertisement is

published. The second hearing shall be held approximately two (2) weeks after the first

10

substantial amount of time and cannot be done on an

emergency basis.

It was subsequent to the passage of emergency

Ordinance 88-05, that the procedure to adopt a zoning

ordinance was initiated and resulted in the passage of Citrus

County Ordinance 88-A51, a zoning ordinance which by its

provisions made the establishment of an adult use, a non-

conforming and illegal use because of the locational

restrictions contained in the ordinance.

On the basis of the violations of emergency Ordinance

88-05, state criminal prosecutions ensued against

Respondents herein. Charges were leveled against Redner

as owner, Thomas Secchiari as manager, and Ms. Patrick,

Ms. Benard, and Ms. Oliver as performance dancers. The

first arrests occurred prior to any employee disrobing to the

extent that any of the specified anatomical areas prohibited

by the ordinance were displayed.

Redner, et al., after the state criminal prosecutions-had

been initiated, brought action in Federal court against the

County, the County Commissioners individually, and the

Sheriff, individually, to challenge the constitutionality of

Ordinance 88-05 and predicated in part on 42 U.S.C. §

1983. This Federal action was filed March 31, 1988. A

subsequent amendment to the action resulted in combined

challenges to licensing Ordinances 88-05 and 88-06.

On motions to dismiss and motions to abstain from

hearing and shall be advertised approximately five (5) days prior to the pubic hearing

The day, time, and place at which the second public hearing will be held shall be

announced at the first public hearing.” F.S. 125.66(5)(b)(1)

l |

further proceedings, the District Court, Melton J., held

that: (1) pending criminal proceedings in state court against

promoters did not warrant abstention; (2) failure to allege

compliance with notice requirements warranted dismissal

without prejudice of pendent cause of action based on

Florida law; (3) proposed class of practitioners of nude

dance or adult entertainment was not type of class that

would support civil rights conspiracy action; and (4) class

composed of person whose activities conflict with Christian

beliefs is not protected under § 1985(3).

Subsequent to the filing of the first federal action, a

second action challenging Ordinance 88-A5] as a valid,

content-neutral, time, place, and manner regulation and

further challenging the ordinance (by alleging that Citrus

County should be estopped from enforcing the zoning

ordinance against Respondent Redner, because of the

factual scenario of the instant case) was initiated. Both

actions were consolidated for trial.

The District Court, in Case Numbers 88-50-Civ-Oc- 12

and 88-193-Civ-Oc-12, William K. Thomas, J., sitting by

designation, dismissed claims against the Commissioners

and the Sheriff, abstained from deciding the

constitutionality of the licensing ordinances, and upheld the

validity of Ordinance 88-A51.

Redner, et al. appealed to the United States Court of

Appeals, Eleventh Circuit, in Case No. 89-3823. The

Eleventh Circuit affirmed the decision of the district court

to abstain on Ordinance 88-05, to dismiss the individual

Commissioners and Sherif due to their immunity, and to

12

—

deny equitable estoppel against Citrus County’s enforcement

of Ordinance 88-A51. The decision of the District Court

to abstain on Ordinance 88-06 was reversed and remanded

for further proceedings. This reported decision is reprinted

in Appendix "A" of the Petition.

Counsel for both Respondents and the County filed

respective motions for rehearing and suggestions for

rehearing en banc. Rehearing and rehearing en banc was

denied on May 20, 1991.

In the state criminal cases, Redner was convicted on

October 6, 1988 and was sentenced on October 17, 1988.

Redner appealed the county court convictions to the circuit

court for the Fifth Judicial Circuit of Florida, Case No. 88-

499-CF. The state circuit court, in its appellate capacity,

affirmed the convictions of the trial court and issued its

mandate on August 13, 1990. Redner subsequently filed a

petition for writ of certiorari with the appropriate Florida

Fifth District Court of Appeal. The petition was denied on

August 31, 1990. Redner then filed a motion for rehearing

of said denial, which was itself denied on September 28,

1990, thereby exhausting Redner’s state court remedies of

the convictions and sentences at issue herein. All state

court criminal action pertained only to Ordinance 88-05.

Despite the fact that, at each phase of the state court

proceedings it was clearly shown that Ordinance 88-05

plainly lacked the adequate procedural safeguards mandated

by this Court in the case of FW/PBS v. City of Dallas, 493

U.S. 215 (1990), no relief was given nor was any written

opinion issued in any state court forum.

13

While the federal action progressed, no order to report

from the trial court was received by Redner or his Counsel.

It was not until April 16, 1991, that an order, reflecting a

date of August 22, 1990, was received by Redner and his

Counsel. Compliance with the order was physically

impossible since it commanded Redner to report within ten

(10) days of it date.

A Petition for Writ of Habeas Corpus was filed in the

United States District Court for the Middle District of

Florida, Case No. 91-90-Civ-Oc-14 on April 22, 1991.

Filed contemporaneously with the Petition for Writ of

Habeas Corpus was an emergency motion for stay of state

court sentence.

On April 29, 1991, a stay of the state court sentence

pending the administration of the Federal Petition for

Habeas Corpus was sought in the state court. The state

court declared that it had no jurisdiction to entertain such

a stay and the motion was withdrawn. Respondent Redner

surrendered himself to the Citrus County Sheriff instanter.

Redner was immediately incarcerated and served out the

remaining forty-seven (47) days of the sixty (60) day

sentence imposed on him by the state trial court. The

previous thirteen (13) days were served pending a

determination in the State court as to whether to release

Redner on supersedeas bond during the administration of

his state court appellate proceedings. Redner was released

on June 4, 1991 and completed the six (6) months

probation imposed by the state court sentence.

The emergency motion in the district court for stay of

14

state court sentence was denied while Redner was

incarcerated. The Petition for Writ of Habeas Corpus was

still pending at the time this brief in opposition was filed.

WHY THE WRIT SHOULD BE DENIED

I. THE FULL FAITH AND CREDIT ACT, 28 U.S.C.

§ 1738, IS MISAPPLIED BY PETITIONER AND DID

NOT REQUIRE THE COURT OF APPEALS TO

AFFIRM THE LOWER COURT’S INVOCATION OF

ABSTENTION.

A. The District Court’s Abstention From The Merits

of Respondents’ Challenges To 88-05 and 88-06

Was Improper.

The Petitioner suggests that the Court of Appeals

correctly affirmed the District Court’s abstention from

deciding the Respondents’ claims concerning — the

constitutionality of 88-05, as necessarily and inevitably

interfering with the ongoing state court criminal

proceedings against Respondents.

In Younger v. Harris, this Court held that absterition is

appropriate where federal jurisdiction has been invoked for

the purpose of restraining state criminal proceedings; the

Court recognized exceptions for bad faith, harassment, or

a patently invalid state statute. 401 U.S. 37, 91 S.Ct. 746,

15

27 L.Ed.2d 669 (1971). The Court has further extended

Younger to cases in which federal jurisdiction was invoked

for the purposes of obtaining declaratory relief when the

federal plaintiff is a defendant in a pending state criminal

prosecution, if Younger would have barred an injunction in

the circumstances. Samuels v. Mackell, 401 U.S. 66, 91

S.Ct. 764, 27 L.Ed.2d 688 (1971).’

The Court of Appeals, applying Younger and its

progeny to the facts of this case, concluded that the district

court properly abstained from deciding the constitutionality

of Ordinance 88-05. The court recognized that, as long as

a federal challenge to a state statute or local ordinance

"relate[s] to pending state proceedings, proper respect for

the ability of state courts to resolve federal questions

presented in state court litigation mandates that the federal

court stay its hand." Pennzoil Co. v. Texaco, Inc., 481

U.S. 1, 14, 107 S.Ct. 1519, 1527, 95 L.Ed.2d 1 (1987).

~ The Court of Appeals recognized that the state criminal

proceedings were well under way by the time, “any

proceedings of substance on the merits [had] taken place in

federal court." (citing Hicks, 422 U.S. at 349, 95 S.Ct. at

2292). This threshold Younger consideration was deemed

an appropriate basis to invoke the doctrine of abstention.

In addressing the alleged bad faith of Citrus County, (as

“Younger was further extended when the Supreme Court held that federal courts may

not provide declaratory relief if a state prosecution is commenced against the federal

plaintiffs “after the federal complaint is filed but before any proceedings of substance on

the merits have taken place in the federal court ...”. Hicks v. Miranda, 422 U.S. 332,

349, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 2223 (1975); see also Doran v. Salem Inn, Inc.,

422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

16

suggested by the sequence of events) as a possible exception

to the Younger doctrine, the court focused only on a

consideration of the presence of state prosecutions

undertaken in bad faith.

The Court of Appeals stated that Redner presented no

evidence that the prosecution was brought without a

reasonable likelihood of obtaining a valid conviction and (in

Footnote 8 of the reported opinion) suggested that the only

bad faith that Redner assericu was the County’s enactment

of an ordinance directed solely at him one day before he

planned to open his adult entertainment facility.*

The Court of Appeals further stated that, "Nothing

about that act by the County seems to establish, in itself,

bad faith". (Footnote 8 of the Opinion, 919 F.2d at 650).

There is precedent to the contrary which supports the

bad faith argument. In providing this authority to the

various courts which have administered the many legal

actions which grew from the instant facts, the First

Amenument status of the anticipated business has been

Bad faith was defined as “a prosecution (which) has been brought without a

reasonable expectation of obtaining a valid conviction”. Kugler v. Helfant, 421 U.S.

117, 126 n.6, 95 S. Ct. 1824, 1531 n.6, 44 L. Ed. 2d 15 (1975)

* At the emergency hearing conducted for the enactment of Ordinance 88-05, the

acting commissioners made comments like, [help] this board to close that place down”

and “get out, get after the man that owns the property who has leased it to [Respondent]

_ see if maybe you could get him to change his mind and do whatever he has to do ...

see if you can convince him that he’s made a mistake.” and “I think you know what I

mean, but we need to, again, restrict our comments to the thing in front of us to make

sure because this thing may end up in court. We want to make sure that we don’t mess

it up by what we say in public ...” (Commissioners Broska and Bryant).

17

continually stressed.”

In the instant case, the factual scenario and sequence of

events indicate clearly the existence of bad faith and the

imposition of an unconstitutional prior restraint sufficient to

qualify as an exception to the Younger abstention doctrine.

In Avalon Cinema Corporation v. Thompson, 677 F.2d

659 (8th Cir. 1981) {modified as to Attorneys Fees, 689

F.2d 187 (8th Cir. 1982)}, the factual scenario was almost

identical to the situation herein. In Avalon, building

permits to construct a movie theatre and bookstore at a

single location in North Little Rock, Arkansas were

obtained on September 30, 1980. At that point in time, the

location was properly zoned as a commercial area. Also on

that date, the proper occupational license (or privilege

license) to operate a movie theatre was obtained. Avalon

planned to exhibit at the theatre sexually-oriented films to

consenting adults over eighteen (18) years of age. There

were no adult movie theatres in the City at the time, and

none, other than Avalon, was preparing to open. Money

was spent remodelling and preparing the theatre for its

commercial opening.

The City had a separate privilege license for "adult"

bookstores in addition to the license for bookstores

generally. It did not have a separate license for "adult"

SAs this Court has consistently recognized, the instant case involves the attempted

presentation of entertainment held to be expression which is entitled to limited protection

under the First Amendment. California v. LaRue, 409 U.S. 109, 93 S. Ct. 390, 34_L.

Ed. 2d 3342 (1972); Schad v. Mt. Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 68 L. Ed.

2d 67t- (1981); Barnes v. Glen Theater, 59 U.S.L.W. 4745, 111 S.Ct. 2456, 115

L.Ed.2d 504 (1991). This is critical in any consideration of bad faith.

18

movie theatres.

On November 19, 1980, Avalon secured the privilege

license to operate an adult bookstore at the selected site.

That same day, the North Little Rock City Council

convened a special meeting for the purpose of enacting an

emergency zoning ordinance that prohibited, within one

hundred yards of specified structures and areas in the City,

the exhibition or sale of any sexually-oriented film. The

Avalon Theatre was located within one hundred yards of a

residential area. The emergency ordinance effectively

precluded Avalon from legally commencing business.

The Avalon court, in concluding that the ordinance

could not be squared with the relevant precedents under the

First Amendment, found that the action of the City failed

to meet the four part test in United States v. O’Brien, 391

U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), and

called into question not only the applicability of the

evidentiary basis used to support the ordinance, but the

timing of the enactment of the ordinance as well.

The application to the instant case is clear. In both

situations, municipal legislation is arguably being utilized

to preclude specific parties from the presentation of First

Amendment protected expressive entertainment. This Court

has recognized no import in this distinction, clearly

indicating that when either zoning or licensing ordinances

are utilized impermissibly to restrain First Amendment

19

protected activities, they are equally as invalid.°

In 754 Orange Ave v. City of West Haven, Conn., 761

F. 2d 105 (1985), the court affirmed a lower court

injunction against the City of Wést Haven from enforcing

its zoning and licensing ordinances against a company

wishing to present sexually-oriented entertainment within a

leased premises.

In 754 Orange, the factual scenario is again almost

identical to the instant case. On February 24, 1984, 754

Orange applied to the City for a building permit to make

renovations to a leased premises in order to open an adult

booxstore and theater. The City had a zoning ordinance

which placed restrictions on amusement and entertainment

facilities, but its applicability to the use contemplated by

754 Orange was "unclear", save for a provision involving

locational distance restrictions to schools, parks or

playgrounds, which provision was clearly not applicable to

754 Orange because the nearest preclusive use was over

1,000 feet away.

The City also had a licensing and permitting ordinance

that was similarly unclear in addressing the applicability to

the coin operated viewing machines contemplated for the

leased premises. None of these issues were addressed or

resolved when 754 Orange applied to the City for a

building permit, which the City refused to issue.

© See FW/PBS. Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. $96, 107 L.Ed.2d

603 (1990), in which a licensing ordinance was held unconsiitutiona! on First

Amendment issues, and 11126 Baltimore Blvd. v. Prince George's County, Maryland,

110 S.Ct. 2580 (1990) in which the same First Amendment safeguards were applied to

a zoning ordinance.

20

The 754 Orange court addressed several First

Amendment issues, but the most salient application to the

instant case is the following:

"In addition, section 32-2.7 is impermissible as

enacted, because its adoption strongly suggests that

it was aimed solely at 754 Orange. Only after the

City learned that 754 Orange’s leased premisses is

beyond 1,000 feet from any school, park or

playground did the City amend the ordinance so as

to include 754 Orange’s building within its scope.

It is true that, as a matter of general zoning law in

Connecticut, a permit applicant does not have a

vested right in the existing classification of his land;

instead his right to establish a particular use may be

summarily terminated by an amendment that

reclassifies his land and outlaws the use in question.

(Citation omitted.)

"Even as a matter of zoning law, however, a court

will not allow changed building zone regulations to

act as a bar to a building project where it would be

inequitable to do so." (Citation omitted.) Id. at

113.

The notable similarities between the factual scenarios of

Avalon and 754 Orange are clear evidence that Citrus

County acted in an impermissible manner in_ its

"emergency" enactment of Ordinance 88-05. It is

axiomatic that the imposition of municipal legislation which

results in a discriminatory prior restraint should be

21

construed as an act of bad faith.’ On facts that are this

obvious; such bad faith should clearly suffice as an

exception to the Younger abstention doctrine.

The Petitioner urges that the provisions of 88-06 which

are identical to 88-05 are severable and also urges that the

district court’s abstention from the merits of Respondents’

challenges to the identical provisions in 88-06 was equaily

mandatory under Younger v. Harris.

For the reasons specified in support of not exercising

abstention as to 88-05, the Respondents would submit that

the Court of Appeals reached the correct conclusion in

deciding not to abstain in considering Ordinance 88-06."

The Petitioner has not made a convincing argument in

asserting this basis for the issuance of the writ.

"The exception noted in Younger, and based on Dombrowski v. Pfister, 380 U.S

479, 85 S.Ct. 1116, (1965) is appropriately applied to the circumstances of the instant

vase.

“(T]he threats to enforce the statutes against appellants are not made with

any expectation of securing valid convictions, but rather are part of a plan to

employ arrests, seizures, and threats of prosecution under color of the statute

to harass appellants and discourage them and their supporters from asserting

and attempting to vindicate the constitutional mghts of Negro citizens of

Louisiana.” 380 U.S., 482, 85 S.Ct. at 1118-1119, Id. at 752.

“The Court of Appeals held, “The presence in Ordinance 88-06 of substantive

provisions absent from Ordinance 88-05 potentially requires that each of Ordinance 88-

06's provisions be construed in the context of these additional substantive provisions.

Therefore, even if the federal district court had held Ordinance 88-06 might have been

persuasive authority in the state court, but that such a federal court decree would have

inevitably barred a contrary state judgment on the constitutionality of a different

ordinance is doubtful. . . . For example, the federal court might have held - or may still

hold - 88-06 unconstitutional on the basis of provisions in 88-06 but not in 88-05 . .

In addition, the state criminal proceedings would not necessarily determine the

constitutionality of Ordinance 88-06." 919 F.2d at 650, n.9 & n.10.

22

B. The State Court Judgment On Respondents’

Constitutional Challenges To 88-05 Does Not

Preclude Challenges To The Provisions Of 88-06.

_ The Petitioner urges that the Full Faith and Credit Act,

28 U.S.C. § 1738’, which obliges a federal court to give

the same preclusive effect to a state court judgment, as it

would be given under the law of the state in which the

judgment was rendered'’, precludes the Respondent from

relitigating similar constitutional challenges to Ordinance

88-06 which have been decided in the state courts in

reference to Ordinance 88-05. This contention is without

merit.

In the instant case, Ordinances 88-05 and 88-06 were

challenged on several constitutional grounds and

particularly on the basis of clear facial inadequacies. The

facial absence of any of the adequate procedural safeguards,

as mandated by the recent decision of this Court in

EW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990);

gives clear evidence of these inadequacies.

The licensing scheme imposed by Ordinances 88-05 and

88-06 was alleged by Respondents to be an unconstitutional

prior restraint. Any system of prior restraints on

expression comes before the court bearing a heavy

presumption against its constitutional validity. Sendak vy.

*By the Fuil Faith and Credit Act, Congress implemented the Full Faith and Credit

Clause of the Constitution, art. IV, §& 1, extending to the federal courts the same

requirement obligatory to state courts. Migra v. Warren City School Dist., 465 U.S. 75,

8O, TO4 S.Ct. 892, 896, 70 L.Ed.2d 56 (1984); Kremer v. Chemical Construction Corp...

456 U.S. at 483 n.24, 102 S.Ct. at 1898 n.24.

Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. at $25, 106 S.Ct. at 772:

McDonald v. City of West Branch, Mich., 466 U.S. 284, 287, 104 S.Ct. 1799, 1801,

80 L.Ed.2d 302 (1984); Migra v. Warren City School Dist., 465 U.S. at 81, 104 S.Ct.

at 896; Kremer v. Chemical Construction Corp., 456 U.S. at 466, 102 S.Ct. at 1889

23

Nihiser, 97 S.Ct. 2914, 431 U.S. 961, 53 L.Ed.2d 1057

(1977); affirming lower court cited at 405 F.Supp. 482

(ND Ind 1974).

Federal courts are charged uh the primary duty of

vindicating federal rights. The Younger doctrine (discussed

in the previous Section), in either its criminal or civil

applications, allows intervention where the challenged

statute is flagrantiy and patently violative of express

constitutional provisions. Huffman _v. Pursue, 420 U.S.

592, 95 S.Ct. 1200, 43 L.Ed.2d 482; rehearing denied 421

U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975).

In assessing the "Full Faith and Credit" or the impact

of any “interference” from a ruling by the district court or

the Court of Appeals on similar constitutional challenges to

an ordinance which is not the basis for the state court

criminal action, is the result of Petitioners’ own choice to

enact the later ordinance.

Whether the concept of collateral estoppel under Florida

law'' or the federal application of issue preclusion’?

arise as considerations, they do so as the indirect result of

addressing challenges to an ordinance which is not itself the

basis of state court criminal action.

The Petitioner asserts that the preclusive effect of a

federal court ruling, on identical issues presented in earlier

ongoing state criminal proceedings is exactly the

interference barred by the Younger doctrine as well as the

'! Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla. 1977), Seaboard Coast Line

RR. Co. v. Cox, 338 So.2d 190, 19] (Fla. 1976); R_ & S Partnership v. Martin Schaffel

Enterprises. Inc., 529 So.2d 794, 795 (Fla. 3d D.C.A. 1988); Freehling v.§ MGIC

Financial Corp., 437 So.2d 191, 193 (Fla. 4th D.C.A. 1983).

'>§ EL. Maduro (Fla.). Inc. v. M/V_ Antonio de Gastaneta, 833 F.2d 1477, 1483

(11th Cir. 1987); LA. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1449-51

(1 Ith Cir. 1986); Provau v. State Farm Mutual Automobile Ins. Co., 772 F.2d 817, $21-

22 (11th Cir. 1985); Cotton States Mutual Ins. Co. v. Anderson, 749 F.2d 663, 665-67

(Lith Cir. 1984).

24

subject of the application of the full faith and credit clause.

In support of this, the cases cited by Petitioner as

persuasive authority [Ballard v. Wilson, 856 F.2d 1568 (Sth

Cir. 1988); United Books, Inc. v. Conte, 739 F.2d 30 (Ist

Cir. 1984)] involved factual situations where the federal

and state actions both involved the same legislation.

It must also be stressed that, in the instant case, the

federal action is predicated on 42 U.S.C. § 1983'°. Any

analysis must be undertaken with a consideration of the

underlying purposes of Section 1983 against the purposes

of the Full Faith and Credit Act. This distinction becomes

critical when the fact that the preclusive effect of 28

U.S.C. § 1738 may not be given in federal court to a

constitutionally infirm judgment. Kremer _v. Chemical

Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72

L.Ed.2d 262 (1982).""

The Respondents provided clear evidence in every state

court forum that Ordinance 88-05 was constitutionally

infirm.'’ Substantial authority questioning the lack of

942 U.S.C. section 1983 was drafted to provide a federal forum for litigants who

Congress feared might not receive substantial justice from a state court. The

implementing statute for the full faith and credit clause, 28 U.S.C. section 173%,

provides that a state's preclusion rules should control matters originally litigated in that

state. When a state court has decided, or could have decided, issues related to a

subsequent 1983 action, the underlying purposes of sections 1983 and 1738 are in direct

conflict. Full Faith and Credit and Section 1983: A Reappraisal, 63 N.C.L.Rev. 59

(1985).

'4See also the discussion of Kremer in Parker v. Danville Metal Stamping Company,

Inc.. 603 F.Supp. 182 at 188 (C.D. Il. 1985).

‘The facial invalidity of Ordinance 88-05 was stressed in every forum. The

Respondents were effectively and entirely precluded from the presentation of First

Amendment protected expressive entertainment through the reactionary enactment of

“emergency” Ordinance 88-05. The combination of this, with the irreparable harm

caused by the Respondents’ loss of their First Amendment mghts, indicates that none of

the state courts involved in this case adequately recognized the unconstitutionality of the

ordinance. The following was stressed to every state court:

25

procedurai safeguards and the possibility of an

unconstitutional prior restraint (which became a reality) was

pointed out in every forum. Cited by Respondents in every

state court forum was the case of EW/PBS v. The City of

Dallas, supra. '°

"The loss of First Amendment freedoms, for even a minimal

period of time, unquestionably constitutes irreparable injury. See

New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct.

2140, 29 L.Ed.2d 822 (1971). Since such injury was both

threatened and occurring at the time of Respondents’ motion and

since Respondents sufficiently demonstrated a probability of

success on the merits, the Court of Appeals might properly have

held that the District Court abused its discretion in denying

preliminary injunctive relief. See Bantam Books, Inc. v.

Sullivan, 372 U.S. 98, 67, 83 S.Ct. 631, 637, 9 L.Ed.2d 584

(1963)." Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673 (1976).

‘In FW/PBS, this Court reviewed a comprehensive ordinance adopted by the City

of Dallas, which regulated sexually oriented businesses. ff

There are several criticai similarities between the Dallas ordinance and Citrus

County Ordinance 88-05.

The Dallas ordinance was struck down as being violative of the First Amendment,

on the grounds that it constituted a prior restraint upon protected expression, and that 1

failed to provide adequate procedural safeguards 2s required by Freedman v. Maryland,

380 U.S. $1 (1965).

This Court used the analogy that, like a censorship system, a licensing scheme

creates the possibility that constitutionally protected speech will be suppressed where

there are inadequate procedural safeguards to ensure prompt issuance of a license. Tuis

Court held that a license for a First Amendment protected business must be issued in a

reasonable period of time and, therefore, the first wo Freedman safeguards are essential.

In the Dallas ordinance, there was a requirement that the Chief of Police approve

the issuance of a license within 30 days after the receipt of an application, and also

conditioned such issuance upon approval by other municipal inspection agencies without

setting forth time limits within which those inspections must occur. Since the ordinance

failed to set forth an effective time limitation on the licensing decision, and since it also

failed to provide an avenue for prompt judicial review so as to minimize suppression of

speech in the event of a license denial, its licensing requirement was unconstitutional,

Citrus County Ordinance 88-05, in § 2-5 (a)(1), “Time Pernod for Granting or

Denying License”, places a forty-five (45) day limit after proper filing to process an

application with the County Administrator. Subsection (c) of the section provides, just

like the Dallas ordinance, that denial can be conditioned on any disapproval of other

local government inspection agencies, namely (as set forth in § 2-4(a)), the Department

of Development Services, Fire Protection, and the Health Department.

Under Florida law, forty-five (45) days is adequate time to pass a zoning

7 2% A

In recognizing the fact that a licensing scheme creates

the possibility that constitutionally protected speech will be

suppressed where there are inadequate procedural

safeguards to insure the prompt issuance of a license, this

Court found that the absence of these procedura! safeguards

would result in legislation which was facially

unconstitutional.’ Id.

ordinance, which in actuality Citrus County did, resulting in zoning non-compliance for

the anticipated premises of Respondent's business.

Section 2-4(a) of Ordinance 88-OS states only that:

”... Each department shall promptly conduct an inspection of the applicant,

application and the proposed establishment in accordance with its

responsibilities ...” Ordinance 88-05, § 2-4(a).

Clearly, just like the Dallas ordinance, Citrus County places no specific time

limitation on the County's inspection agencies other than the vague suggestion that they

be “prompt”. In addition to this infirmity, allowing an applicant to begin operation

pursuant to § 2-S(a)(1) after the expiration of the forty-five (45) day period, “unless and

until the County Administrator notifies the applicant of a denial of the application and

siaies the reasons for the denial” results in inadequate procedural safeguards under this

Court’s prior decisions.

The forty-five (45) day approval period leaves an applicant vulnerable not only to

penal sanctions for any County code or regulatory violations which may occur during the

interim between submission and approval or denial, but is also compounded by other

infirmities in the ordinances.

‘'Section 2-11 provides for the suspension of a license for a variety of alleged local

government regulatory vioiations. This oection states that:

“The Department shall promptly notity the licensee of the violation and shall

allow the licensee a seven (7) day period in which to correct the violation,

If the licensee fails to correct the violation before the expiration of the seven

day period the Department shall notify the County Administrator, who shall

forthwith suspend the license, and shall notify the licensee of the suspension.

The suspension shall remain in effect until the Department notifies the County

Administrator in writing that the violation of the provision in question has

been corrected.”

Clearly, by not limiting the time in which the Department must notify "in writing”

the County Administrator, this infirmity would also invalidate the ordinance under the

FW/PBS Inc. decision. Not only do these subtle “loopholes” allow unbridled

administrative discretion, the entirety of § 3 of the ordinance, which imposes an

27

Another critical flaw brought to the attention of the

state courts involved the second required procedural

safeguard set forth in Freedman, supra: expeditious judicial

review. As stressed in the FW/PBS, Inc. case, the

existence of this prompt judicial review is absolutuy

essential. EW/PBS, Inc. cites not only Freedman, supra,

but also Shuttlesworth v. City of Birmingham, 394 U.S.

147, 89 S.Ct. 935 (1971) (at 155) for the proposition that

a content-neutra! time, place and manner regulation must

provide for "expeditious judicial review". '*

In Blount v. Rizzi, 400 U.S. 410 (1971), this Court

held that administrative hearings similar to those set out in

the Citrus County ordinances came nowhere near the

standards required for "judicial review". The Court found

that an administrative censorship scheme created by the

additional permitting provision on any potential employee, emphasizes even more the

extent to which the ordinance in guestion is unconstitutional,

SSee also, National Socialist Party v. Skokie, 432 U.S. 43 (1977).

Section 6, titled "Miscellaneous Provisions” provides in § 6-1 - Appeals:

"(1) Within fifteen (15) days of the mailing of a notice of denial of an

application for a license or permit or a notice of suspension or revocation of

a license or permit, the aggrieved party may file a notice of appeal with the

Board.

"(2) The notice of appeal shall be filed with the Clerk of the Board. The

notice of appeal shall be accompanied by payment of a filing fee of fifty

dollars ($50.00) to cover administrative costs. Upon receipt of the notice of

appeal and upon payment of the accompanying fifty dollars ($50.00) filing

fee, the Clerk shall schedule a hearing for as soon as the Board's calendar

will allow. The Clerk shall provide the appellant with at least ten (10) days

notice of the time and place for the hearing.” Ordinance 88-05, § 6-1; 6-2.

Not only does this section crumble from the weight of Constitutional scrutiny when

the vague period of time “as soon as the Board's calendar will allow ...” is tested against

the previous points and authorities contained herein, but it also fails the second part of

the Freedman test. The review afforded in § 6 is insufficient.

28

Postal Reorganization Act and allowing the Postmaster

General, following administrative hearings, to effectively

decide which materials be afforded First Amendment

protections, was totally unacceptable.

As a fundamental right, freedom of speech demands due

process to be regulated, and the amount of process "due"

was held to be of the strictest judicial requirement. The

Court held that because only a judicial determination in an

adversary proceeding ensures the necessary sensitivity to

freedom of expression,only a procedure requiring a judicial

determination suffices to impose a valid final restraint. Id.

at 424.

The Citrus County ordinances at issue herein are clearly

unconstitutional. The failure to include adequate procedural

safeguards on the face of these ordinances make them

invalid. The preclusive effect of the full faith and credit

clause may not be given in Federal court to a

constitutionally infirm judgment.'? The Petitioner's

arguments are neither meritorious nor compelling, and this

Court should decline to exercise its discretion in this

matter.

Il. THE COURT OF APPEALS PROPERLY REJECTED

THE PETITIONER’S ARGUMENT THAT THE

ROOKER-FELBMAN DOCTRINE REQUIRES

ABSTENTION OF RESPONDENTS’

CONSTITUTIONAL CHALLENGES TO THE

PROVISIONS OF 88-06.

The Rooker-Feldman doctrine, which stems from the

If there is reason to doubt the quality, extensiveness or fairness of procedures

followed in prior litigation in state court, redetermination of issues in federal court is

warranted. Morgan v. City of Rawlins, 792 F.2d 975 (10th Cir. 1986).

/

29

two Supreme Court decisions Rooker v. Fidelity Trust Co.,

263 U.S. 413, 44 S.Ct. 149, 68 L.Ed 362 (1923) and

District of Columbia Court of Appeals v. Feldman, 460

U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), is

misapplied in the instant case. The Rooker-Feldman

doctrine interprets 28 U.S.C. § 1257 as ordinarily barring

direct review in the lower federal courts of a decision

reached by the highest state court, for such authority is

vested solely in tnis Court.”

It is also clear that a consideration of 28 U.S.C. § 1257

triggers consideration of full faith and credit.“' (See

discussion in previous section). The Petitioner urges that

the court of appeals failed to adhere to the principles of the

Rooker-Feldman doctrine by considering provisions of 88-

06. As the court of appeals properly recognized, there are

several substantive differences between 88-05 and 88-06.~

Because these considerations involve entirely different

ordinances, and also because no decision was ever reached

or presented to the Florida Supreme Court, the Rooker-

Feldman doctrine has no application in the instant case.

Respondents would also urge that cogent considerations of

the facial unconstitutionality of the ordinance (not only as

“PASARCO, Inc. v. Kadish, 490 U.S. 605, 622, 109 S.Ct. 2037, 2048, 104 L.Ed.2d

696 (1989).

*l Allen v. Allegheny Co., 196 U.S. 458, 25 S.Ct. 311, 49 L.Ed. 551 (1905);

Johnson v. New York Life Ins. Co., 187 U.S. 491, 23 S.Ct. 194, 47 L.Ed. 273 (1903);

Western Life Indem. Co. v. Rupp. 235 U.S. 261, 35 S.Ct. 37, 59 L.Ed. 220 (1914).

2Redner v. Citrus County, 919 F.2d at 650, n.9.

30

applied to the concepts of abstention and full faith and

credit) would indicate that a deprivation of the federal

courts to address the clear federal questions involved in this

case would continue the pattern of prejudice which has been

imposed on Respondents.

In light of the points and authorities presented by the

Respondents and the undeniable fact that the bases asserted

by Petitioner to invoke this Court’s discretionary review are

all interrelated. The Petitioner has failed to show adequate

in this context for the granting of the writ.

CONCLUSION

For the reasons discussed herein, this Court should

decline to exercise its discretionary jurisdiction in this

matter.

Respectfully submitted,

/s/ Luke Charles Lirot

LUKE CHARLES LIROT

THOMAS C. LITTLE, P.A.

2123 N.E. Coachman Road

Suite A

Clearwater, Florida 34625

(813) 874-2030

Attorney for Respondents