Petition for Writ of Certiorari — Redner v. Citrus County, Florida (No. 91-316)

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

ovina rj NY 0

JOE REDNER, et al.,

Petitioners,

V.

CITRUS COUNTY, FLORIDA, et al.,

Respondents.

<isnnesae Ch.ccacntaaiee

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

nana Oni

Luke C. Lirot, Esquire

THOMAS C. LITTLE, P.A.

2123 N.E. Coachman Road

Suite A

Clearwater, Florida 34625

Attorney for Petitioners

‘alas

IT.

III.

QUESTIONS PRESENTED FOR REVIEW

Is an ordinance enacted one day before the

anticipated opening of an adult entertainment

establishment, which ordinance was clearly designed

to prevent the establishment from opening, a

sufficient showing of bad faith to comprise an

exception to the abstention doctrine as set forth in

Younger v. Harris, 401 U.S. 37 (1971)?

Do the presence of both irreparable harm and the

facial invalidity of an ordinance justify exceptions to

the absiention doctrine as set forth in Younger v.

Harris, 401 U.S. 37 (1971)?

Does a diligent inquiry into existing municipal

legislation, inquiry of municipal employees, a

substantial investment made in good faith reliance

on these inquiries, procurement of appropriate

licenses and permits, and the subsequent imposition

of an ordinance negating a party’s ability to engage

in a business for which all this activity was

designed, justify a basis to equitably estop the

municipality from taking such action, as historically

recognized by the Supreme Court?

LIST OF PARTIES

PETITIONERS

Appellants in the Eleventh Circuit Court of Appeals

JOE REDNER

THOMAS GEORGE SECCHIARI

PHYLLIS PATRICK

TAMMY BENARD

AMANDA BENARD OLIVER

RESPONDENTS

Appeilees 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

*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

ill

TABLE OF CONTENTS

Questions Presented for Review i

List of Parties Below il

Table of Contents iv

Table of Authorities vi

Opinions Below l

Constitutional and Statutory Provisions 2

Statement of the Case 4

Reasons for Granting the Writ 1]

THE DECISION OF THE COURT OF APPEALS

IN AFFIRMING YOUNGER ABSTENTION

WITH RESPECT TO CITRUS COUNTY

ORDINANCE 88-05 CONFLICTS WITH PRIOR

DECISIONS OF THIS COURT AND LOWER

FEDERAL COURTS. 11

I.

A.

THE BAD FAITH EXCEPTION TO THE

YOUNGER ABSTENTION DOCTRINE

APPLIES TO THIS CASE AND

ABSTENTION WAS IMPROPER WITH

RESPECT TO CITRUS COUNTY

ORDINANCE 88-05. 11

THE PRESENCE OF IRREPARABLE

HARM AND THE FACIAL INVALIDITY

OF ORDINANCE 88-05 JUSTIFY

EXCEPTIONS TO THE YOUNGER

DOCTRINE. 20

I.

THE COURT OF APPEALS MISCONSTRUED

THE APPLICATION OF EQUITABLE ESTOPPEL

TO THE INSTANT FACTS RESULTING IN

CONFLICT WITH THE RATIONALE BEHIND

THE DECISIONS OF UNITED STATES _V.

HETH, HACKETT V. CITY OF OTTAWA, AND

THEIR PROGENY. : 27

V

TABLE OF AUTHORITIES

Authority Page

A.A. Profiles v. City of Ft. Lauderdale, 29

850 F.2d 1483 (11th Cir. 1988)

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

659 (8th Cir. 1981) {modified as to 14, 15

Attorney’s Fees, 689 F.2d 187 (8th Cir. 1982)} 19

Bantam Books v. Sullivan, 372 U.S. 58 (1963) = 21

Barnes v. Glen Theater, U.S.

59 L.W. 4746 (1991) 13

Bateson v. Geisse, 857 F.2d 1300 (9th Cir.

1988) 30

Blount v. Rizzi, 400 U.S. 410 (1971) 26

California v. LaRue, 409 U.S. 109 (1972) 13

City of Ft. Pierce v. Davis, 400 So.2d

1242 (Fla. 4th DCA 1981) 28

City of Miami Beach v. 8701 Collins Ave.

Inc., 77 So.2d 428 (Fla. 1954) 28

Colorado River Water Conservation District

v. United States, 424 U.S. 800 (1976) 19

Dombrowski v. Pfister, 380 U.S. 479 (1965) 19

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) 12

Vi

Authority Page

Elrod v. Burns, 427 U.S. 347 (1976) al, 22

Ex parte Young, 209 U.S. 123 (1908) 20

Freedman v. Maryland, 380 U.S. 51 (1965) aay ae

26

FW/PBS v. City of Dallas, 493 U.S. 215 (1990) 10, 16

Hackett v. City of Ottawa, 99 U.S. 86 (1878) 27

Hicks v. Miranda, 422 U.S. 332 (1975) 12

Kugler v. Helfant, 421 U.S. 117 (1975) 13, 20

National Socialist Party v. Skokie,

432 U.S. 43 (1977) 25

New_York Times Co. v. United States,

403 U.S. 713 (1971) 21

11126 Baltimore Blvd. v. Prince George’s

County, Maryland, 110 S.Ct. 2580 (1990) 16

Pasco County v. Tampa Development Corp.,

364 So.2d 850 (Fla. 2nd DCA 1978) 28

Pennzoil Company v. Texaco, 481 U.S. 1 (1987) 12

Redner v. Citrus County, Florida,

919 F.2d 1246 (11th Cir. 1990) 1,9

Vii _

Authority Page

Redner v. Citrus County, Florida,

710 F.Supp. 318 (M.D. Fla. 1989) 1,9

Samuels v. Mackell, 401 U.S. 66 (1971) 12

Schad v. Mt. Ephraim, 452 U.S. 61 (1981) 13

754 Orange Ave. v. City of West Haven, 16, 17

Conn., 761 F.2d 105 (1985) 18, 19

Shuttlesworth v. City of Birmingham, 394

U.S. 147 (1971) 25

Southern Cooperative Development Fund

v. Driggers, 696 F.2d 1347 (11th Cir. 1983) 30

United States v. Heth, 7 U.S. 399 (1806) 27

United States v. O’Brien, 391 U.S. 367 (1968) = 15, 16

Wheeler v. City of Pleasant Grove, 664

F.2d 99 (Sth Cir. 1981) 29

Younger v. Harris, 401 U.S. 37 (1971) i, tz

19, 20

21, 22

7

Constitutional Provisions:

United States Constitution '3

Amendment | 15, 16

: 18, 2

Zi. 2a

Vill 23, 30

Authority Page

Amendment 14, Section | SA

Federal Statutes:

28 U.S.C. Sec. 2101(c) 2

42 U.S.C. Sec. 1983 3

42 U.S.C. Sec. 1985(3) 3, 4

Florida Statutes:

Chapter 125 ; i2

Citrus County Ordinances:

Citrus County Ordinance 88-05 4,5, 6

7, 8,9

10, 11

ia, 32

20, 21

22, 23

24, 25

26

Citrus County Ordinance 88-06 4,7, 8

9

Citrus County Ordinance 88-A51 4,7,8

9, 29

iX

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

JOE REDNER, et al.,

Petitioners,

VS.

CITRUS COUNTY, FLORIDA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Eleventh Circuit, reported as Redner_v. Citrus

County, Florida, 919 F.2d 646 (11th Cir. 1990) is

reprinted in Appendix "A". This Opinion reflects an action

which was the consolidation of two cases before the United

States District Court for the Middle District of Florida.

The Opinion of the United States District Court for the

Middle District of Florida, reported as Redner v. Citrus

County, Florida, 710 F. Supp. 318 (M.D. Fla. 1989) is

l

reprinted in Appendix "B". This Opinion was rendered

prior to consolidation. The unreported Memorandum and

Order of the United States District Court for the Middle

District of Florida, rendered subsequent to consolidation is

reprinted in Appendix "C". The Order of the Court of

Appeals denying the petitions for rehearing and suggestions

for rehearing en banc is reprinted in Appendix "D". The

Order of the Court of Appeals granting a stay of the

judgment and mandate is reprinted in Appendix "E". The

Order of the Court of Appeals granting an additional stay

of the judgment and mandate is reprinted in Appendix "F".

JURISDICTION

The United States Court of Appeals for the Eleventh

Circuit entered its Opinion on December 18, 1990.

Petitions for rehearing and suggestion for rehearing en banc

were timely filed. The Order denying rehearing and

rehearing en banc was entered on May 20, 1991. This

petition is filed within ninety (90) days of that date. This

Court has jurisdiction pursuant to 28 U.S.C. Sec. 2101(c).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

Amendment 1

Congress shall make no law ... abridging the

freedom of speech ...

Amendment 14, Section 1

bo

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

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

3

deprivation, against one or more of the conspirators.

ORDINANCES ENACTED BY

CITRUS COUNTY, FLORIDA

Ordinance 88-A51, Ordinance 88-05, and Ordinance

88-06 of Citrus County, Florida are reprinted and included

in their entirety in Appendix "G", "H", and "I"

respectively.

STATEMENT OF THE CASE

In early March of 1988, Petitioner 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,

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.

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 undertook repairs and alterations

to the premises to facilitate the presentation of performance

dance shows at a cost of approximately $10,000.00. The

premises was located in a commercially zoned area and was

formerly a bar. In an effort to comply with all existing

local requirements to open the business, the proper agencies

were contacted in an effort 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 Coilector

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

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 any Citrus County

employee consulted, or from the public in general. 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.

On March 25, 1988, the date Redner had anticipated

opening his establishment, 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.!

Emergency Ordinance 88-05 imposed the

requirement that a license be obtained prior to the

presentation of any constitutional!y protected expression by

Prior to Redner’s attempt to open an adult establishment in Citrus County, no other

such adult use had existed in the County.

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 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

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."

Section 5 of the ordinance established criminal

penalties for any failure to comply with any provision of

Citrus County Ordinance 88-05.

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).

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 affected.

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 68-06 superseded Ordinance 88-05.

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

A5S1, an ordinance amending the Citrus County zoning

ordinance by establishing adult entertainment use

regulations.

Because 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

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

2 Chepter 125, Florida Statutes, specifies the statutory requirements for the enactment

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

commissioners shali 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

hearing and shail be advertised approximately five (5S) 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)(i).

7

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

provisions made the establishment of an adult use, at the

premises Redner had already acquired an interest in, a non-

conforming and illegal use because of the locational

restrictions in the ordinance.

On the basis of violations of emergency Ordinance

88-05, state criminal prosecutions ensued against petitioners

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. 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

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). This reported

decision is reprinted in Appendix "B".

Subsequent to the filing of-the first federal action,

a second action, challenging Ordinance 88-A51 as a valid,

8

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 Petitioner 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-AS51. This unreported

memorandum and order is reprinted in Appendix "C".

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 Sheriff due to their immunity, and to

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".

Counsel for both Petitioners 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

9

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.

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.

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. Petitioner 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

10

Redner on supersedeas bond during the administration of

his state court appellate proceedings. Redner was released

on June 4, 1991 and remains on probation pursuant to the

State court sentence.

The emergency motion for stay of state court

sentence was denied. The Petition for Writ of Habeas

Corpus was still pending at the time the instant action

was filed.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE COURT OF

APPEALS IN AFFIRMING YOUNGER

ABSTENTION WITH RESPECT TO

CITRUS COUNTY ORDINANCE 88-05

CONFLICTS WITH PRIOR DECISIONS

OF THIS COURT AND LOWER

FEDERAL COURTS.

A. THE BAD FAITH EXCEPTION TO

THE YOUNGER ABSTENTION

DOCTRINE APPLIES TO THIS

CASE AND ABSTENTION WAS

IMPROPER WITH RESPECT TO

CITRUS COUNTY ORDINANCE

88-05.

In Younger v. Harris, this Court held that abstention

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

1]

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). 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).

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. Recognizing 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 a possible exception to the Younger doctrine, the Court

focused only on a consideration of the presence of state

12

—

prosecutions undertaken in bad faith. 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, 126n.6, 95 S. Ct. 1524,

1531 n.6, 44 L. Ed. 2d 15 (1975).

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) suggests that the only

bad faith that Redner asserts 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).

There is precedent to the contrary which supports

the bad faith argument.

As 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 671 (1981); Barnes v. Glen Theater, 59 L.W. 4746

(1991).

In the instant case, the factual scenario and sequence

of events indicate clearly the existence of bad faith and the

* 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 kas leased it to

[petitioner] ... 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).

13

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"

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 ai. 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

14

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.

"...In the present case, the North Little

Rock City Council enacted its zoning

ordinance, which prohibited the showing of

certain sexually explicit films within 100

yards of specified areas, only after learning

of the imminent opening of the City’s first

"adult" movie theatre." Avalon, at 661.

"...Although the Avalon Cinema had not

officially opened at the time the North Little

Rock ordinance was passed, all preparatory

work had been substantially completed.

Given the fact that no other adult theatre

existed in the City, the ordinance had the

effect of virtually suppressing public access

to sexually-oriented (but non-obscene) adult

entertainment....

"...Here it is clear that the North Little Rock

ordinance fails at least the third part of the

O’Brien test. The City Council enacted the

ordinance only after being informed of the

impending opening of the Avalon Cinema

adult theatre. We cannot ignore the fact that

its passage was an "emergency" measure to

prevent the exhibition and sale of sexually-

oriented films in North Little Rock...

15

"...In sum, the North Little Rock ordinance

is clearly a content based regulation of

protected speech". Id at 662, 663.

While the instant case deals with an "emergency"

licensing ordinance and Avalon dealt with an "emergency"

zoning ordinance, Citrus County was precluded from

enacting any “emergency” zoning ordinance because

provisions of Chapter 125, Florida Statutes, contain specific

notice and hearing requirements, which include minimum

and maximum time limitations for the publication of such

public notices, thus making "emergency" adoption of a

zoning ordinance a legal impossibility.

The analogy 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

impact in this distinction, clearly indicating that when either

zoning or licensing ordinances are utilized impermissibly to

restrain First Amendment 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 West Haven from enforcing

its zoning and licensing ordinances against a company

wishing to present sexually-oriented entertainment on a

leased premises. The court held that:

"(1) To anyone who would contemplate

4 See FW/PBS. Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596, 107 L. Ed.

2d 603 (1990), in which a licensing ordinance was held unconstitutional 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.

16

establishing a bookstore business within the

city’s jurisdiction, the city’s threat to enforce

its zoning and licensing ordinances operated

aS a prior restraint;

(2) The ordinance could not be justified as

a reasonable time, place, and manner

restriction;

(3) The ordinance was impermissible as

enacted, because its adoption strongly

suggested that it was aimed solely at the

company in question; and

(4) The company which proposed to operate

the adult bookstore on the leased premises

was entitled to preliminary injunctive relief

against the operation of ordinance." Id. at

111.

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

bookstore 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.

17

On April 23, 1984, 754 Orange filed in federal

court for injunctive and declaratory relief. On May 4,

1984, the court ordered the City to issue the building

permit. The City did not and more litigation ensued.

On June 15, 1984, the City amended section 32-2.7,

the municipal zoning legislation whose applicability to the

proposed establishment was unclear. This amendment

extended the minimum location distance restrictions and

imposed a requirement that 754 Orange obtain a special

permit from the Planning and Zoning Commission to

conform to the special permitting provisions as well as any

further restrictions set forth by the Planning and Zoning

Commission.

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. !t 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.)

18

"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

construed as an act of bad faith.

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 case.

"we

[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

rights of Negro citizens of Louisiana.’ 380

U.S., 482, 85 S.Ct. at 1118-1119, Id. at

y= 2

Citing Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 813, 817, 96 S.Ct. 1236,

1244, 1246, 47 L.Ed.2d 483 (1976), the Court of Appeals

recognized that:

19

"Abstention from the exercise of federal

jurisdiction is the exception. not the rule.

‘The doctrine of abstention, under which a

District Court may decline to exercise or

postpone the exercise of its jurisdiction, is

an extraordinary and narrow exception to the

duty of a District Court to adjudicate a

controversy properly before it. Id. at 813.

The implications of the Court of Appeals decision

involve issues of nationwide importance. If the actions of

Citrus County are not construed as an exhibition of bad

faith and an exception to the Younger doctrine, the

possibility of using municipal legislation as an improper yet

entirely effective prior restraint, resulting in the erosion of

First Amendment freedoms, clearly exists. Because the

Court of Appeals’ opinion has such wide-ranging

implications and conflicts with the applicable decisions of

this Court, and many other courts, this Court should grant

review.

B. THE PRESENCE OF

IRREPARABLE HARM AND THE

FACIAL INVALIDITY OF

ORDINANCE 88-05 JUSTIFY

EXCEPTIONS TO THE YOUNGER

DOCTRINE.

The Younger doctrine states that in addition to the

existence of a prosecution undertaken in bad faith, the

existence of exceptional circumstances creating a threat of

irreparable injury both great and immediate also qualifies as

an exception to the doctrine. See Kugler v. Helfant, supra.

A judicial exception evidenced by any applicable federal

anti-injunction statute has been made where a person about

20

to be prosecuted in a state court can show that he will, if

the proceeding in the state court is not enjoined, suffer

irreparable damages. See Ex parte Young, 209 U.S. 123,

28 S.Ct. 441, 529 L.Ed. 714 (1908).

In addressing this exception, and most specifically

the existence of irreparable harm, this Court has held that

the loss of First Amendment freedoms, for even a very

short period of time, constitutes such irreparable harm.

The actual loss suffered by Petitioners in this instant action

goes far beyond the mere "chilling effect" referred to in

Younger.

" ..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. 58, 67, 83

S. Ct. 631, 637, 9 L.Ed. 2d 584 (1963)."

Elrod v. Burns, 427 U.S. 347, 96 S. Ct.

2673 (1976).

It is the combination of this "chilling effect" with

the existence of a showing of bad faith and the clear facial

invalidity of Ordinance 88-05, as shown in the factual

scenario herein, which makes Younger abstention

inapplicabie. The cumulative effect of the actions of Citrus

21

County must be recognized.

"...Itis sufficient for purposes of the present

case to hold, as we do, that the possible

unconstitutionality of a statute ’on its face’

does not in its f justify an injunction against

good-faith attempts to enforce it, and that

appellee Harris has failed to make any

showing of bad faith, harassment, or any

other unusual circumstance that would cail

for equitable relief." Id. 91 S. Ct. at 755.

The instant case makes such a showing. Redner was

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 Petitioners’ loss of their

First Amendment rights indicates that the Court of Appeals

incorrectly failed to recognize an exception to Younger

abstention as related to Ordinance 88-05.

The facial invalidity of the ordinance was also

clearly indicated to the Court of Appeals as well as all

lower courts. Substantial authority questioning the iack of

procedural safeguards and the possibility of an

unconstitutional prior restraint (which became a reality) was

pointed out in every forum.

In FW/PBS, supra, this Court reviewed a

comprehensive ordinance adopted by the City of Dallas,

which regulated sexually oriented businesses.

There are several critical 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 it failed to provide adequate procedural safeguards as

required by Freedman v. Maryland, 380 U.S. 51 (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. This Court held that a license for a

First Amendment protected business must be issued in a

reasonable period of time and, therefore, the first two

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 Period 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 ordinance, which in actuality Citrus

County did, resulting in zoning non-compliance for the

anticipated premises of Petitioner’s business.

Section 2-4(a) of Ordinance 88-05 states only that:

23

"

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 § 2-5(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 states 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

violations. This section states that:

"The Department shall promptly notify 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

24

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 unbridied administrative

discretion, the entirety of § 3 of the ordinance, which

imposes an additional permitting provision on any potential

employee, emphasizes even more the extent to which the

ordinance in question is unconstitutional.

The critical consideration at this point involves the

second required procedural safeguard set forth in

Freedman, supra: expeditious judicial review. As stressed

in the EW/PBS Inc. case, the existence of this prompt

judicial review is absolutely essential. FW/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-neutral time, place

and manner regulation must provide for "expeditious

judicial review". See 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

25

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

‘ee, 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.

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

held that similar administrative hearings came nowhere near

the standards required for "judicial review". The Court

found that an administrative censorship scheme created by

the 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

26

to freedom of expression,only a procedure requiring a

judicial determination suffices to impose a valid final

restraint. Id. at 424.

The cumulative effect of the facial invalidity of

Ordinance 88-05, in combination with the actions of Citrus

County indicate that precisely that type of prior restraint

. that both the Framers and this Court find most repugnant is

‘, evident in the instant scenario and justify an exception to

\the Younger abstention doctrine. Because of the potential

Wangers inherent in the instant case, this Court should grant

review.

THE COURT OF APPEALS

MISCONSTRUED THE APPLICATION

OF EQUITABLE ESTOPPEL TO THE

INSTANT FACTS RESULTING _ IN

CONFLICT WITH THE RATIONALE

BEHIND THE DECISIONS OF UNITED

STATES V. HETH, HACKETT V. CITY

OF OTTAWA, AND THEIR PROGENY.

This Court has historically recognized and applied

the doctrine of equitable estoppel. In United States v.

Heth, 7 U.S. 399 (1806) and in Hackett v. City of Ottawa,

99 U.S. 86 (1878) the Court recognized that a +ocal

government is held to careful adherence to truth in its

dealings and cannot by its representations or silence involve

others in onerous engagements and then defeat the claims

their own conduct has superinduced.

In the instant case, Redner diligently researched all

applicable regulations for the establishment of the

anticipated business. This research included direct inquiry

of various Citrus County employees and municipal

27

/

~

agencies. Based on representations and research, he

obtained all licenses and permits then required by Citrus

County.° Thus there were numerous actions imputed to

Citrus County on which Redner reasonably, and in good

faith, relied. This reliance was much to Redner’s

detriment, in that he substantially altered his position in

good faith reliance on the actions of Citrus County.

The Court of Appeals summarized its entire position

on this issue in one (1) footnote (footnote four [4],

Appendix A at 648). Addressing only the zoning issue,

that court found that Redner was unentitled to rely on the

inaction of Citrus County in not earlier adopting a zoning

ordinance regulating the location of adult entertainment

facilities.

Relying entirely on Florida law (City of Miami

Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 [Fla.

1954]; City of Fort Pierce v. Davis, 400 So.2d 1242, 1244

[Fla. App. 4th Dist. 1981]; Pasco County _v. Tampa

Development Corp., 364 So.2d 850, 853 [Fla. App. 2d

Dist. 1978]), the Court of Appeals found that estoppel did

not apply. A closer inspection of the facts would indicate

that this finding is inaccurate.

In denying Redner’s sought for relief, based on the

due process claim of equitable estoppel, the Court of

Appeals failed to recognize that in the Florida cases cited,

the aggrieved property owners made little or no contact

whatsoever with the local governments, and made little or

no efforts to ascertain what regulations might apply to their

situations. In the instant case, Redner made such extensive

contacts with Citrus County prior to his first effort to

5

There was an issue as to whether or not the renovations undertaken on the

premises leased by Redner in reliance on the actions of Citrus County required a building

permit. This issue was not resolved and Redner submitted that the “red tag” issued by

Citrus County was another tactic to impose a prior restraint.

28

provide the subject form of expression, that Citrus County

reacted by enacting an emergency ordinance which

effectively restrained him from presenting any expression.

The same factual setting applies with respect to the zoning

ordinance (88-A51), in that Redner diligently ascertained

that there were no zoning provisions to impede his plans,

and he substantially altered his position to his detriment in

his good faith reliance upon that finding, the representations

of Citrus County employees, and the issuance of

occupational licenses, inspections and permits.

"... In Wheeler [v. City of Pleasant Grove,

664 F.2d 99 (Sth Cir. 1981)] a property

owner obtained a permit from the city to

construct an apartment complex. The permit

was issued pursuant to a city ordinance.

The property owner began construction on

the site in reliance on the permit. Local

residents opposed the development, and after

a referendum, the city passed a new

ordinance prohibiting the plaintiffs from

proceeding with construction.’ Id. at 100.

This Court affirmed the district court's

findings ...

"Wheeler is indistinguishable from this case.

The original resolution granted appellant a

property interest. The rezoning ordinance

denied appellant this property interest

because the new classification did not

accommodate [the proposed use]. The City

Commission’s action was therefore a

confiscatory measure." A.A. Profiles v.

City of Ft. Lauderdale, 850 F.2d 1483 (11th

Cir. 1988).

See also, Bateson v. Geisse, 857 F.2d 1300 (9th

Cir. 1988).

In the instant case, there was no ordinance of any

type pending at the time Redner prepared to start business

and in fact no action was taken by Citrus County until the

day before Redner was to open. See also, Southern

rative Development Fund v. Driggers, 696 F.2d

1347 (11th Cir. 1983), wherein the Court stated that:

"It would therefore indeed be inequitable to

permit the defendants to take advantage of a

new law enacted while an application for

plat approval, valid when filed, has been

unlawfully delayed". Id. at 1354.

The Court of Appeals has misapprehended the law

in its assessment of the factual scenario herein. This

comprises a departure from the historical position of this

Court and poses the danger that a failure to recognize the

doctrine of equitable estoppel can result in an exercise of

state action which results in an impermissible prior

restraint. Because of the fundamental nature and First

Amendment considerations inherent in the issues presented

by the instant case, this Court should grant review.

DATED August 19, 1991

Respectfully submitted,

Luke Charles Lirot

Attorney for Petitioners

30