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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2589%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2589%3A1. Public record. Not legal advice.