Appendix — Boss Capital, Inc. v. City of Casselberry

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APPENDIX A

Opinion of the United States Court of Appeals

for the Eleventh Circuit, dated September 3, 1999

BOSS CAPITAL, INC., a Florida corporation,

Plaintiff-Appellant,

v.

CITY OF CASSELBERRY, a Florida municipal

corporation, Defendant-Appellee.

No. 98-2802.

Before DUBINA and HULL, Circuit Judges, and

O'KELLEY, Senior District Judge. '

DUBINA, Circuit Judge:

Boss Capital, Inc. owns strip clubs. It wants to open a

club in a building it leases in Casselberry, Florida, but

Casselberry's zoning ordinance prohibits it from operating at

that location. In this appeal, Boss Capital challenges the

constitutionality of Casselberry's zoning ordinance. It also

challenges the constitutionality of the licensing provisions of

Casselberry's adult entertainment ordinance. The district court

granted summary judgment for Casselberry on both of these

claims. We conclude that the licensing provisions are valid but

that the validity of the zoning provision turns on a factual

question the district court left unresolved. We therefore affirm

in part and remand this case to the district court with

1. Honorable William C. O'Kelley, Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation.

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instructions to reconsider the validity of the zoning provisions

in light of this opinion.

i.

We address the zoning ordinance first. An adult

entertainment establishment in Casselberry may operate only in

the C-G (Commercial-General) zoning district, but even within

that zone, it may not operate within 1000 feet of a church, a

school, a public park or recreation area, another adult

entertainment establishment, or an area zoned for residential

use. See Casselberry Code art. II], s 14-75(a) (reprinted in

appendix). The ordinance grandfathers establishments in

existence in Casselberry as of the ordinance's effective date.

See Casselberry Code art. Ill, s 14-76(a) (reprinted in

appendix). All the parties agree that if one of the existing

establishments closes, a new adult entertainment establisnment

may operate in the same location as a "nonconforming use"

until the use “is removed or abandoned, or ceases for a

continuous period of more than 90 days." Casselberry Code

part III, s 2-8.9 (reprinted in appendix).

Boss Capital leased a building in Casselberry with plans

to open a stnp club there. The building is almost 1000 feet

from residentially zoned property, but almost wasn't good

enough. Casselberry refused to permit Boss Capital to use the

site for adult entertainment.

Appropriately, the district court turned to City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89

L.Ed.2d 29 (1986), to decide whether Casselberry's zoning

ordinance is constitutional. That case holds that municipalities

may constitutionally apply zoning regulations to nude dancing

establishments as long as the regulations are narrowly tailored

to serve a substantial government interest and leave open

reasonable alternative avenues of expression. See id. at 50-54,

Si te oats

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106 S.Ct. 925. The dispute in this case is whether Casselberry's

zoning ordinance leaves open reasonable alternative avenues of

expression.

Whether a zoning ordinance leaves open reasonable

alternative avenues of expression depends on how many sites

are available. See Lady J. Lingerie, Inc. v. City of Jacksonville,

176 F.3d 1358, 1361 (11th Cir.1999). Availability, in turn, is a

matter of economics. A site is available for our purposes as

long as adult entertainment establishments may vie for it in the

real estate market "on an equal footing with other prospective

purchasers and lessees." City of Renton, 475 US. at 54, 106

S.Ct. 925.

The district court counted six available sites. Two other

sites might be available, but factual questions kept the court

from deciding on summary judgment whether they are actually

available. The district court left those questions unresolved

because it held that six sites are enough for a city of

Casselberry's population (24,100).

Boss Capital does not appear to dispute that six are

enough. Rather, it argues that the six sites the district court

included should not count. Three of the sites are outside the

city limits. Casselberry insists that these sites should count

because they are close to town (978 feet, 121 feet and 1.25

miles). The other three sites the district court counted are in

Casselberry, but they are grandfathered sites that do not comply

with the ordinance's distance requirements.

Whether a site is available is generally a factual

question, but whether the sites outside Casselberry's borders

and the grandfathered sites count are legal questions which the

district court resolved on summary judgment and we review de

novo. See Parks v. City of Warner Robins, 43 F.3d 609, 612-13

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(11th Cir.1995).

A.

We turn first to the grandfathered sites. The ordinance

permits the current occupanis to remain where they are for as

long as they want, but a new occupant may only operate an

adult entertainment establishment at one of the grandfathered

sites if no more than 90 days has passed since the last adult

entertainment establishment operated there. See Casselberry

Code art. 3, s 14- 76(a); id. part III, s 2-8.9. The likelihood that

a shoe store or a grocery will move into one of the sites, or that

one of the sites will sit vacant for more than 90 days, is, if not

great, at least significant. If any of those things happen, the site

is no longer available.

Still, for now at least, the three (defeasibly)

grandfathered sites are available. Boss Capital has every nght

to outbid its competitors and buy or lease one of the

grandfathered sites out from under one of the current occupants.

This convinces us to include the grandfathered sites in the

“reasonable alternative avenues of expression” equation.

B.

That leaves the three sites outside the city limits.

Whether Casselberry may rely on those sites is an issue this

court has not yet faced, although the Supreme Court has faced

it and left the question open. See Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 76-77, 101 S.Ct. 2176, 68 L.Ed.2d 671

(1981); id. at 78, 101 S.Ct. 2176 (Blackmun, J., concurring).

We opt to leave it open as well because it is our custom not to

decide difficult constitutional questions unless we must. See

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct.

466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The

district court noted that one or two other sites might be

available inside the city limits. If they are, we probably will not

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have to decide whether the sites outside the city limits should

count because four or five sites are most likely adequate for

Casselberry.

We do not hold, however, that three sites alone are

inadequate for Casselberry. That question too is a difficult one

we might not need to decide. Instead, we remand this case to

the district court for it to resolve whether the sites inside the

city limits are actually available. Then, if it must, it should

consider whether the available sites constitute reasonable

alternative avenues of expression.

In deciding whether three or four or five sites constitute

reasonable alternative avenues of expression, the district court

should consider more than just Casselberry's population. It

should also consider Casselberry's geographical size, the

number of acres available to adult entertainment establishments

as a percentage of that size, where the sites are located, the

number of adult entertainment establishments currently in

existence in Casselberry, and the number of adult entertainment

establishments wanting to operate in Casselberry. In short,

whether a given number of sites constitutes reasonable

alternative avenues of expression is an issue to be resolved on

a case-by-case basis, taking into account any factors that may

affect whether adult entertainment establishments are on "equal

footing with other prospective purchasers and lessees." City of

Renton, 475 U.S. at 54, 106 S.Ct. 925; see also Int'l Food &

Beverage Sys. v. City of Ft. Lauderdale, 794 F.2d 1520, 1526

(11th Cir.1986)(referring to "community needs, the incidence

of nude bars in other comparable communities, the goals of the

city plan, and the kind of city the plans works towards").

In light of this, we affirm the district court's judgment

insofar as it held that the grandfathered sites may be considered

in the "reasonable alternative avenues of expression" equation.

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In light of this, we affirm the district court's judgment

insofar as it held that the grandfathered sites may be considered

in the "reasonable alternative avenues of expression" equation.

In accordance with our custom of only deciding difficult

constitutional questions when necessary, however, we remand

this case to the district court for it to determine whether one or

two more sites are available inside the city limits. If need be,

the district court should then decide whether the total number

of sites constitutes reasonable alternative avenues of expression.

We now tum to Casselberry's adult entertainment

licensing ordinance, to which Boss Capital has two objections.

Its first objection is that the ordinance does not provide for

prompt judicial review in compliance with Freedman v.

Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965),

because it does not guarantee that courts will promptly resolve

appeals from administrative license denials. Second, it

contends that the ordinance gives licensing officials too much

discretion in violation of Shuttlesworth v. City of Birmingham,

394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).

A.

We have twice pretermitted the question whether

Freedman's requirement of prompt judicial review, as reflected

in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110S.Ct. 596,

107 L.Ed.2d 603 (1990) (plurality opinion), requires licensing

ordinances to explicitly provide for prompt judicial review. See

Lady J. Lingerie, 176 F.3d at 1363; Redner v. Dean, 29 F.3d

1495, 1501-02 & n. 9 (11th Cir.1994) (discussing Cent. Fla.

Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th

Cir.1985): Miami Herald Publ'g Co. v. City of Hallandale, 734

F.2d 666, 675-76 (11th Cir.1984)). As we have observed, a

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general right to judicial review of administrative decisions may

be enough. Casselberry's ordinance contains an explicit judicial

review provision, see Casselberry Code art. III, s 14- 99(c)

i (reprinted in appendix), so the question in this case is slightly

different: whether Freedman and FW/PBS require a guarantee

of prompt judicial resolution of license denials.

This is an issue on which there has been some

disagreement since the Supreme Court decided FW/PBS.

i Justice O'Connor's plurality opinion in that case says that "there

must be the possibility of prompt judicial review in the event

that [a] license is erroneously denied." F W/PBS, 493 U.S. at

228, 110 S.Ct. 596 (emphasis added). Later she says that the

Dallas ordinance violates the First Amendment because "[iJt

also fails to provide an avenue for prompt judicial review .. ."

Id. at 229, 110 S.Ct. 596 (emphasis added). In concurrence,

Justice Brennan does not explicitly disagree with the plurality

opinion on this issue, but he characterizes the night to prompt

judicial review differently, referring to it as the right to "a

prompt judicial determination." /d. at 239, 110 S.Ct. 596

(Brennan, J., concurring) (citing Freedman, 380 U.S. at 58-59,

85 S.Ct. 734).

This difference between Justice O'Connor's and Justice

Brennan's characterizations of the right to prompt judicial

review has spawned a split in the circuits. The F irst, Fifth and

Seventh Circuits hold that for licensing ordinances, prompt

judicial review only means access to prompt judicial review.

See TK's Video, Inc. v. Denton County, 24 F.3d 705, 709 (Sth

Cir.1994), followed in Grand Brittain, Inc. v. City of Amarillo,

27 F.3d 1068, 1070-71 (Sth Cir.1994) (per cunam); Graff v.

City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir.1993) (en

banc); Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984

F.2d 1319, 1327 (1st Cir.1993). On the other side are the

Fourth and Ninth Circuits and arguably the Sixth, which hold

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that Freedman and FW’/PBS require a guarantee of prompt

judicial resolution. See Baby Tam & Co. v. City of Las Vegas,

154 F.3d 1097, 1101-02 (9th Cir.1998), followed in 4805

Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th

Cir.1999); 11126 Baltimore Boulevard, Inc. v. Prince George's

County, 58 F.3d 988, 998- 1001 (4th Cir.1995) (en banc); cf

East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220,

224-25 (6th Cir.1995) (state certiorari procedures an

insufficient guarantee of prompt judicial review).

We have not yet decided whether Freedman and

FW’/PBS require municipalities to guarantee prompt judicial

resolution of appeals from license denials. In Redner, the

Citrus County ordinance did not even provide access to prompt

judicial review. See 29 F.3d at 1501-02. We did not hold that

mere access is insufficient. But see 4805 Convoy, 183 F.3d at

1108 n.7 (reading Redner as saying that access to judicial

review is insufficient). We address that issue for the first time

today.

Boss Capital makes a good argument that Freedman

requires prompt judicial resolution of censorship decisions, but

in the end we conclude that access to prompt judicial review is

sufficient for licensing decisions. Freedman itself unmistakably

requires "a prompt final judicial decision." 380 U.S. at 59, 85

S.Ct. 734; see also id. ("final judicial determination on the

merits"; “judicial resolution"). Moreover, Freedman ' s

progeny also require an assurance of a prompt judicial decision.

See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 560,

95 S.Ct. 1239 ("a prompt final judicial determination must be

assured") (1975); United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 371-74, 91 S.Ct. 1400, 28 L.Ed.2d

822 (1971) (plurality opinion) (in Part I of the plurality opinion,

joined by six Justices, imposing time limits for completion of

judicial proceedings in obscenity forfeiture cases); Blount v.

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Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 27 L.Fd.2d 498 (1971)

(“a final judicial determination on the merits within a specified,

brief period").

Still, none of these pre-FW/PBS cases involved a

licensing ordinance for adult entertainment establishments.

Instead they involved censorship. In Freedman, for instance,

State law authorized public officials to ban movies it found to

be obscene. 380 U.S. at 52-53 n. 2, 85 S.Ct. 734. For good

reason, Freedman ascribes great importance to prompt judicial

resolution of the validity of these sorts of decisions; courts’

relative institutional insulation from political pressures makes

them less apt to erroneously suppress unpopular expression.

See Henry P. Monaghan, First Amendment "Due Process", 83

Harv. L.Rev. 518, 520-24 (1970).

The dangers of censorship are less threatening when it

comes to licensing schemes. Unlike censors, who pass

judgment on the content of expression, licensing officials look

at more mundane and ministerial factors in deciding whether to

issue a license. See ///26 Baltimore Boulevard, 58 F.3d at

1003 (Niemeyer, J., concurring in part and dissenting in part)

(no need for a guarantee of a prompt judicial decision in the

absence of a direct prior restraint on speech); see also FW/PBS,

493 U.S. at 229, 110 S.Ct. 596 (Licensing officials do not pass

judgment "on the content of any protected speech"; rather, they

look at "the general qualifications of each license applicant, a

ministerial action that is not presumptively invalid."). Indeed,

Shuttlesworth limits licensing officials to the mundane and the

ministerial. See Lady J. Lingerie, 176 F.3d at 1362 (holding

that Shuttlesworth requires licensing standards to be "precise

and objective"). Furthermore, applicants for adult entertainment

licenses, unlike movie distributors who might show a given

film in hundreds of theaters around the country, have every

incentive to stick it out and see litigation through to its end. Cf

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FW’/PBS, 493 US. at 229-30, 110 S.Ct. 596 (plurality opinion)

(no need to put burden of going to court and burden of proof on

licensing officials because license applicants have the incentive

to go to court). The need for a prompt judicial decision is

therefore less compelling for licensing ordinances than for

censorship schemes.

In sum, although Freedman appears to require prompt

judicial resolution of censorship decisions, licensing decisions

are different. We believe this is a situation for "treating unlike

things differently according to their differences." Lyes v. City

of Riviera Beach, 166 F.3d 1332, 1342 (11th Cir.1999) (en

banc). Accordingly, we agree with the First, Fifth and Seventh

Circuits and hold that access to prompt judicial review 1s

sufficient for adult entertainment licensing ordinances.

Casselberry's ordinance provides that access: "Any decision of

the Community Development Department pursuant to Division

2 (License) may be immediately reviewed as a matter of nght

by the Circuit Court upon the filing of an appropriate pleading

by an aggrieved party." Casselberry Code art. III, s 14-99(c)

(emphasis added). We therefore conclude that Casselberry's

ordinance does not run afoul of Freedman.

Boss Capital alsc contends that Casselberry's adult

entertainment licensing ordinance is invalid because it gives

licensing officials too much discretion in violation of

Shuttlesworth. Whatever the ments of this argument, we

conclude that Boss Capital has not preserved this issue for

appeal. Boss Capital's first complaint raised the issue, but

Casselberry has since repealed one of the provisions to which

Boss Capital initially objected. After that, Boss Capital scarcely

mentioned the issue before filing its bnef with us. The district

court did not address the issue. This is not enough to preserve

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an issue for appeal, so we decline to address it. See Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)

(en banc).

j Ill.

=

In conclusion, we hold that Casselberry's licensing

ordinance is valid and that its zoning ordinance might be,

depending on the district court's determination on remand

whether any additional sites are available for adult

entertainment establishments.

AFFIRMED in part and REMANDED.

APPENDIX

Casselberry Code of Ordinances

ARTICLE Ill. ADULT ENTERTAINMENT

ESTABLISHMENTS

DIVISION 1. GENERALLY

Sec. 14-66. Definitions.

The following words, terms and phrases, when used in

this Article, shall have the meanings ascribed to them in this

Section, except where the context clearly indicates a different

meaning:

-_ * *

Adult Performance Establishment

(a) shall mean an establishment where any employee:

(1) engages in a private performance or

displays or exposes any specified

anatomical areas to a patron, regardless

of whether the employee actuaily

engages in dancing:

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SS

(b)

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(2) wears any covering, tape, pastie, or

other device which simulates or

otherwise gives the appearance of the

display or exposure of any specified

anatomical areas, regardless of whether

the employee actually engages in

dancing:

(3) offers, solicits, or contracts to dance or

perform with a patron and accepts any

consideration, tip, remuneration or

compensation from or on behalf of that

person: or

(4) dances or performs with or within three

(3) feet of a patron and accepts any

consideration, tip, remuneration, or

compensation from or on behalf of that

person.

It is an affirmative defense that an establishment

is not an adult performance establishment if the

establishment is a bona fide private club whose

membership as a whole engages in social

nudism or naturalism as in a nudist resort or

camp, or such other establishment in which the

predominant business or attraction of the

establishment is not the offering to customers of

a product, service, or entertainment which is

intended to provide sexual stimulation or sexuai

gratification to such customers, and the

establishment is not distinguished by an

emphasis on or the advertising or promotion of

materials relating to or employees depicting,

describing, displaying, exposing, or simulating

sexual activities or specified anatomical areas.

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ts

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(c) An adult entertainment establishment shall not

be deemed a place provided or set apart for the

purpose of exposing or exhibiting a person's

sexual organs in a manner contrary to the first

sentence of Section 800.03, Florida Statutes, the

State's indecent exposure statute as set forth in

the decision of the Supreme Court of Florida in

the case of Hoffman v. Carson, 250 So.2d 891

(Fla.1971), appeal dismissed 404 U.S. 981, 92

S.Ct. 453, 30 L.Ed.2d 365 (1971).

Adult entertainment establishment means an adult arcade, adult

bookstore, adult motel, adult performance establishment, or

adult theater.

“* *

Residential zoning district means any area legally zoned or

designated by an adopted comprehensive plan in a manner

primarily intended for dwellings.

“_* *

Sec. 14-74. Location generally.

All adult entertainment establishments within the City

of Casselberry, Florida shall be limited to the C-G

(Commercial-General) zoning district and shall be subject to

all restrictions enumerated in this Code.

Sec. 14-75. Prohibited locations.

(a) No person shall cause or permit the

establishment, substantial enlargement or

transfer of ownership or control of an adult

entertainment establishment within 1,000 feet of

any other adult entertainment establishment or

any church, school, public park or public

recreation area, or within 1,000 feet of an area

(b)

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zoned for residential use or designated by an

adopted comprehensive plan in a manner

primarily intended for dwellings. For purposes

of this Section, the term "substantial

enlargement” shall mean increasing the size of

the permitted or licensed premises by more than

ten percent of the original licensed premises.

For the purposes of this Section, distance

measurements shall be made in a straight line,

without regard to intervening structures or

objects, from the nearest property line of the

property used as an adult entertainment

establishment to the nearest property line of the

premises of a church, school, public park or

public recreation area, or to the nearest

boundary of any area legally zoned or

designated by acomprehensive plan in amanner

primarily intended for dwellings, without regard

to municipal boundaries. Measurement of

distances between adult entertainment

establishments shall be from lot line to lot line

at their nearest points.

Sec. 14-76. Nonconforming uses.

(a)

(b)

Generally. An adult entertainment establishment

which, on the effective date of the ordinance

from which this Article is derived, does not

comply with the distance requirements of

Section 14-75, shall be subject to the

nonconforming use provisions contained in the

zoning code of the City.

Residential rezoning. If an area is zoned

residential or designated by a comprehensive

plan in a manner pnmarily intended for

dwellings for the first time, or if an area is

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rezoned for residential use or redesignated by a

comprehensive plan in a manner primarily

intended for dwellings and lies within 1,000 feet

of an existing adult entertainment establishment,

the adult entertainment establishment shall be

considered an existing nonconforming use, as

defined in Subsection (a) of this Section, from

the effective date of the rezoning ordinance.

DIVISION 2. LICENSE

Sec. 14-96. Required; business classifications.

(a)

(b)

It shall be unlawful for any person to operate an

adult entertainment establishment without

having first obtained an adult entertainment

license issued by the Community Development

Department which is applicable for such

establishment, or to continue to operate an

establishment where that person knows or has

reason to know that the license of the

establishment is under suspension, has been

revoked or has lapsed. The operation of an

adult entertainment establishment without a

valid license, where required, shail be grounds

for the closing of the establishment upon a

finding of fact by a court or other body with

proper jurisdiction that the establishment has

no valid license.

Adult entertainment licenses referred to in this

Article shall be classified as follows:

(1) Adult bookstore

(2) Adult theater

(3) Adult performance establishment

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(c) An adult entertainment license for a particular

adult entertainment establishment shall be

limited to one (1) classification of license.

Sec. 14-99. Issuance or denial.

(a) Generally.

(1) Upon the completion of _ the

investigation and review of an

application as required in this Division,

upon determination that the applicant

meets the requirements of this Division,

and upon payment of the appropnate

license fee by the applicant, the

| Community Development Department

shall issue the license.

(2) If, after review and investigation as

provided in this Division, the

Community Development Department

determines that one or more of the

reasons for denial stated in Subsection

(b) of this Section exist, the application

shall be denied, and the Community

Development Department shall make a

written report of the denial and the

reasons therefor. A copy of the report

shall be sent by certified mail to the

designated return address of the

applicant on the application.

(b) | Grounds for denial. The application for a

license shall be denied if one or more of the

following conditions are found to exist:

(1) The application does not comply with

the requirements of this Article.

(2) The application contains material false

information.

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(3) The applicant or any of the individuals

listed in Section 14-97(b)(1) has a

license under this Division which has

been suspended or revoked as a result of

the implementation of Sec 14-77.

(4) The granting of the application would

violate a statute or ordinance or an order

from a court of law which effectively

prohibits the applicant from obtaining

an adult entertainment license.

(c) Judicial review. Any decision of the

Community Development Department pursuant

to Division 2 ("License") may be immediately

reviewed as a matter of ri ght by the circuit court

upon the filing of an appropriate pleading by an

aggrieved party.

Sec. 14-101. Time limit for action on application. The

Community Development Department shall grant or deny all

applications submitted hereunder within forty-five (45) days

from the date that a completed application with application fee

was submitted. Upon expiration of the 45th day, the applicant

shall be permitted to begin operating the establishment for

which a license is sought, unless and until the Community

Development Department notifies the applicant of a denial of

the application and states the reason(s) for that denial.

PART III. UNIFIED LAND DEVELOPMENT

REGULATIONS

Chapter II

DISTRICT AND GENERAL REGULATIONS

ARTICLE VIII. NONCONFORMING USES AND

NONCOMPLIANT STRUCTURES

18a

Section 2-8.9. Abandonment or discontinuance of a

nonconforming use. If a nonconforming use is removed or

abandoned, or ceases for a continuous period of more than 90

consecutive days, any and every future use of the premises shall

be in conformity with the use provisions of the land

development regulations. All material and equipment

associated with the abandoned or discontinued nonconforming

use shall be completely removed from the premises by its

owner within six months after the expiration of the 90-day

period. No additional structure which does not conform to the

requirements of this Article shall be erected in connection with

such nonconforming use of land.

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APPENDIX B

Order of the United States Court of Appeals

for the Eleventh Circuit, denying Boss Capital’s Petition

for Rehearing, dated October 18, 1999

BOSS CAPITAL, INC.,

Plaintiff-Appellant,

v.

CITY OF CASSELBERRY

Defendant-Appellee.

No. 98-2802.

Before DUBINA and HULL, Circuit Judges, and O'KELLEY,

Senior District Judge.

PER CURIAM

The petition(s) for rehearing filed by Boss Capital, Inc.

is DENIED

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APPENDIX C

Unreported Opinion of the United States District for the

Middle District of Florida, dated September 3, 1999

BOSS CAPITAL, INC.,

Plaintiff,

v.

CITY OF CASSELBERRY,

Defendant.

No. 96-463-CIV-ORL-22B

ANNE C. CONWAY, District Judge

ORDER

This cause comes before the Court for consideration

of Defendant City of Casselberry’s (“City”) Motion for

Summary Judgment (Doc. 59) and Plaintiff Boss Capital

Inc.'s Motion for Summary Judgment (Doc. 61). Plaintiff

challenges the constitutional validity and application of

Sections 14-66, et. seg., of the City’s Code as onginally

adopied by Ordinance 717, as readopted by Ordinance 774,

and as amended by Ordinance 96-864 (hereinafter collectively

referred to as “Ordinance’”’).

| § Standard for Summary Judgment

Summary judgment is appropriate only when the

Court is satisfied “that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). In making this

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determination, the Court must view all of the evidence in a

light most favorable to the non-moving party. Samples on

Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir.

1988) The moving party has the initial burden of establishing

the absence of a genuine issue of fact. Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). Next, the “non-moving party

. . . bears the burden of coming forward with sufficient

evidence of every element that he or she must prove.” Rollins

v. Techsouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). To

that end, the nonmoving party must “go beyond the pleadings

and by her own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file’, designate ‘specific

facts showing that there is a genuine issue for trial.’” Celotex,

477 US. at 324.

Il. Background Information

Plaintiff seeks to operate an adult entertainment

business in the City of Casselberry. Prior to April 1996,

Plaintiff initiated research in the area to locate an appropriate

location for the business. In April 1996, Plaintiff entered into

a lease for a building, which was previously operated as a bar.

The land is located on commercially zoned property almost

1000 feet from residentially zoned property within the City.

The City refused to permit Plaintiff to use the property for

adult entertainment.

On May 1, 1996, Plaintiff filed suit in this Court

against the City claiming that adult entertainment Ordinances

717 and 774 infringed its First Amendment rights. (Doc. 1).

On June 17, 1996, the City adopted Ordinance 96-864, which

amended the prior two ordinances. Thereafter, on November

20, 1996, Plaintiff filed an amended, eleven count complaint.

(Doc. 21) The Court dismissed three counts in an order dated

June 10, 1997. (Doc. 25) The remaining allegations are as

22a

follows: (1) the Ordinance does not allow for the legitimate

establishment of alternative avenues of communication

(Count I); (2) there is improper predicate for the adoption of

the Ordinance (Count II); (3) the Ordinance lacks adequate

procedural safeguards and does not provide the necessary

constitutionally prompt review and thus results in an

unconstitutional prior restraint (Count III); (4) the Ordinance

is unconstitutionally overbroad (Count VII); (5) Ordinance

717 was improperly enacted (Count VIII); (6) Ordinance 774

was improperly enacted (Count IX); and (7) Ordinance 96-

864 was improperly enacted (Count X).

The parties have filed cross motions for summary

judgment. Defendant seeks summary judgment on Counts I,

I], I, Vil, VII, IX, X, and on lost profit damages. Plaintiff

seeks summary judgment on Counts I, VIII, LX, and X.

Ill. Alternative Avenues of Communication (Count I)

Plaintiff alleges in Count I of the Amended Complaint

that the zoning requirements in the Ordinance preclude adult

entertainment clubs from engaging in business within the City

of Casselberry. The Ordinance limits all adult entertainment

establishments within the City to a C-G (Commercial-

General) zoning district. Ordinance 96-864, Section II. In

addition, the Ordinance provides in relevant part that:

No. person. shall cause or permit the

establishment, substantial enlargement, or

transfer of ownership or control of an adult

entertainment establishment within one thousand

(1,000) feet of any other adult entertainment

establishment, any church, school, public park, or

public recreation area, or within one thousand

(1000) feet of an area zoned for residential use

rere sate prea reniash tS an ms era tereormmresar commons weaie

23a

and/or designated by an adopted Comprehensive

Plan in a manner primarily intended for

dwellings.

For the purpose of this Ordinance, distance

measurements shall be made in a Straight line,

without regard to intervening structures or

objects, from the nearest property line of the

Property used as an adult entertainment

establishment to the nearest property line of the

premises of a church, school, public park, or

public recreation areas, or to the nearest boundary

of any area legally zoned and/or designated by

Comprehensive Plan in a manner primarily

intended for dwellings without regard to

municipal boundaries. Measurement of distances

between adult entertainment establishments shall

be from lot line to lot line at their nearest points.

Ordinance No. 717, Sections VIII and IX.

In its Motion for Summary Judgment, the City argues

ample alternative avenues for communication exist because

three licensed adult businesses are located within the City and

two other potential sites are available. Defendant’s Motion

for Summary Judgment (Doc. GO) at 2-3. Additionally, the

City contends that three adult clubs exist immediately outside

the City’s boundaries. /d. at 3-4. In its Motion, Plaintiff

argues that the City has precluded all adult entertainment

establishments within the City due to the zoning

requirements, set back requirements of 1000 feet from every

residentially zoned area, and unavailability of potential sites.

Plaintiff's Motion for Summary Judgment (Doc. 61) at 6-7.

24a

Content-neutral time, place, and manner regulations

survive constitutional scrutiny as long as they do not

unreasonably limit alternative avenues of communication.

City of Renton v. Playtime Theaters, Inc., 47S U.S. 41, 47

(1986). Courts have not established a bright line rule for

determining the reasonableness of an ordinance. However, it

is clear from the case law that a site need not be actually

available. As the Supreme Court stated in Renton, adult

entertainment establishments

must fend for themselves in the real estate

market, on an equal footing with other

prospective purchasers and lessees .. .

[A]lthough we have cautioned against the

enactment of zoning regulations that have ‘the

effect of suppressing, or greatly restricting access

to, lawful speech,’ we have never suggested that

the First Amendment compels the Government to

ensure that adult theaters, or any other kinds of

speech-related businesses for that matter, will be

able to obtain sites at bargain prices... . In our

view the First Amendment requires only that (the

government) refrain from effectively denying

respondents a reasonable opportunity to open and

operate an adult theater within the city... .

Renton, 475 U.S. at 54.

The Court in Centerfold Club, Inc. v. City of St.

Petersburg, 969 F. Supp. 1288, 1302 (M.D. Fla. 1997),

discussed the issue of determining the relevant real estate

market. In that case, the Court explained that “[wJhether a

relocation site is available and part of the relevant real estate

market is measured in terms of ‘genuine possibility.’” Jd. The

Court then noted several factors to consider when determining

25a

whether a potential site is available. First, physical

considerations may render a site unavailable. Jd. In particular,

“[a] site is not a genuine possibility when it is ‘under the

ocean, airstrips of international airports, sports stadiums,

areas not readily accessible to the public, areas developed in a

manner unsuitable for any generic commercial business, areas

lacking in proper infrastructure, and so on.’” Jd. (quoting

Woodall v. City of El Paso, 49 F.3d 1120, 1124 (Sth Cir.

1995), cert. denied, 516 U.S. 988 (1995)). Second, economic

considerations may render a site unavailable. Jd. As the Court

explained, this occurs when it is “‘unreasonable to believe

that it would ever become available to any commercial

enterprise."” /d. (quoting Topanga Press, Inc. v. City of Los

Angeles, 989 F.2d 1524, 1531 (9th Cir. 1993), cert. denied,

511 U.S. 1030 (1994)). However, “when a site is part of the

relevant market and available to any commercial enterprise, it

is irrelevant whether or not the owner will lease the land to

the adult establishment.” /d. (citations omitted) . Third, leases

or restrictive covenants between third parties do not render a

site unavailable. Jd. Fourth, “hazardous waste or other factors

which render the land more expensive to purchase or lease are

also irrelevant.” Jd.

After a court determines the relevant market, it then

decides whether the number of sites is reasonable. There is no

requirement for how many sites are necessary or what

percentage of land must be available. /d. at 1303 (citing 3570

East Foothill Blvd., Inc. v. City of Pasadena, 912 F. Supp.

1257, 1265 (C.D. Cal. 1995), aff'd, 99 F.3d 1147 (9th Cir.

1996)). Courts have considered various factors, including

““the percentage of land theoretically available to adult

businesses, the number of sites potentially available in

relation to the population of the city, the number of sites

compared with the existing number of adult businesses, or the

number of businesses desiring to offer adult entertainment.’”

26a

Id. (quoting 3570 East Foothill Blvd., Inc., 912 F. Supp. at

1265).

Turning to the instant case, this Court must first

determine the relevant market. As to the three existing adult

entertainment establishments, under the Ordinance, they are

grandfathered as nonconforming uses. The Ordinance

provides that the set back requirements do not apply to “adult

performance establishments formerly defined as adult

cabarets existing and operating in Casselberry on February

17, 1992, the effective date of the ordinance from which this

Article is derived; provided that any new construction shall be

subject to such requirements, regardless of whether the

establishment was in existence and operating on such

effective date.” Ordinance 96-864, Section X. If any of three

nonconforming establishments were to close, 5 2-8.9 of the

Unified Land Development Regulations would govern. This

section provides in pertinent part:

If a nonconforming use is removed or abandoned,

or ceases for a continuous period of more than 90

consecutive days, any and every future use of the

premises shall be in conformity with the use

provisions of the land development regulations.

Unified Land Development Regulations 5 2-8.9. A

nonconforming use is defined as:

A use of a building or structure or a tract of land

which does not, on the effective date of this

ordinance or amendment thereto, conform to any

one of the current permitted uses or the district in

which it is located... .

27a

Id. § 2-8.2. Therefore, the closure of any of these businesses

might reduce the number of adult clubs in the City.' However,

according to the Unified Land Development Regulations,

another adult club could operate a business in the same

location as long as it commences its business within 90 days.

The proper inquiry is whether the zoning Ordinance

leaves current and future adult businesses with sufficient

opportunities to open and operate. 3570 East Foothill Blvd., Inc.

v. City of Pasadena, 980 F. Supp. 329, 343 n.18 (C.D. Cal.

1997) (citing Lakeland Lounge v. City of Jackson, 973 F.2d

1255, 1260 (Sth Cir. 1992) . cert. denied, 507 U.S. 1030

(1993) (determining reasonableness of sites based on existing

adult businesses)). The Ordinance is prospective in nature by

allowing existing businesses to continue their use and by

permitting new businesses to continue the nonconforming use

as long as the use begins within 90 days. Therefore, the Court

will consider the three existing uses as part of the relevant

market. See Young v. American Mini Theaters, Inc., 427 U.S. 50,

71 n.35 (1976) (upholding adult business zoning ordinances

in part because the “Ordinances do not affect the operation of

existing establishments but only the location of new ones”):

International Food & Beverage Systems vy. City of Fort

Lauderdale, 794 F.2d 1520, 1526 (11th Cir. 1986) (including

potential and existing sites when discussing the issue of

alternative avenues); Walnut Properties, Inc. v. City of Whittier,

861 F.2d 1102, 1109-10 (9th Cir. 1988) (finding that the

ordinance violated the First Amendment because it would

force the only existing theater to close with no place to

relocate), cert. denied, 490 U.S. 1006 (1989).

1. However, the property identified by McLaughlin as meeting

the 1000 foot set back requirement but not the 1000 foot

requirement from another adult establishment would be able to

support an adult club should the nonconforming use club close.

28a

As to the clubs existing outside the City limits, the

Court finds that under the facts of this case, they are properly

included as part of the relevant real estate market. The

Supreme Court in Schad v. Borough of Mt. Ephraim, 452 U.S.

61 (1981), considered an ordinance that excluded all live

entertainment, including nonobscene nude dancing. In support

of the exclusion, the borough argued that “live entertainment

in general and nude dancing in particular are amply available

in close-by areas outside the limits of the Borough.” /d. at 76.

The Court rejected this argument reasoning that:

[The Borough's] position suggests the argument

that if there were countywide zoning, it would be

quite legal to allow live entertainment in only

selected areas of the county and to exclude it

from primarily residential communities... . This

may very well be true, but the Borough cannot

avail itself of that argument in this case. There is

no countywide zoning . . . . Furthermore, there is

no evidence in this record to support the

proposition that the kind of entertainment

appellants wish to provide is available in

reasonably nearby areas. The courts below made

no such findings; and at least in their absence, the

ordinance excluding live entertainment from the

commercial zone cannot constitutionally be

applied to appellants... .

Id.

Unlike the situation in Schad where there was no

evidence of adult entertainment clubs in surrounding areas, in

the instant case, there is evidence in the record of three adult

clubs located in the surrounding county. In fact, the clubs are

immediately outside the city limits of Casselberry. One is

located approximately 978 feet south; another is located

29a

approximately 121 feet south; and the third is located

approximately 1.25 miles south. Defendant’s Motion for

Summary Judgment (Doc. 60), Exhibit 1. Based on the

proximity of the clubs to the City, the Court finds that the

clubs are to be considered when determining the relevant

market.

Regarding the two potential sites for adult

entertainment, the parties have submitted affidavits and

depositions of expert witnesses Richard Wells for the City

and Robert McLaughlin for the Plaintiff. Wells states in his

affidavit that the first site is “located approximately in the

center of a large parcel at the eastern terminus of Seminola

Boulevard. The second area is located at the intersection of

Oxford Road and State Road 436.” Defendant’s Motion for

Summary Judgment (Doc. 60), Exhibit 1. McLaughlin in his

affidavit states that there are potentially two sites that meet

the 1000 foot set back requirement from residentially zoned

areas. Plaintiff's Motion for Summary Judgment (Doc. 61),

Exhibit A. One is in the southwest comer of the City.

McLaughlin contends that the site is not available because it

is within 1000 feet of another adult entertainment

establishment. Jd. The other is the northeast part of Seminole

Greyhound Park, the area described by Wells as the eastern

terminus of Seminola Boulevard. Jd McLaughlin states that

this site is not available because it is within 1000 feet of a

residentially zoned district if measured from property line to

property line as required by the Ordinance. Jd In addition, he

argues that the area has no infrastructure, there is no access to

it, and it is occupied by a permanent Occupancy unlikely to

relocate. Jd. Lastly, McLaughlin argues that the area identified

by Wells at Oxford Road and State Road 436 does not meet

the set back requirements and is precluded by legal

impediments, such as master leases Or restrictive easements.

Plaintiff's Opposition (Doc. 65), Exhibit 1, at 7.

30a

Although there is some dispute between the parties as

to the availability of the potential sites, the Court does not

need to address whether these sites are actually available.

Even if only six sites are available (three existing sites and

three sites in the surrounding area), the Court holds that the

Ordinance does not unreasonably limit alternative avenues of

communication. Similar ordinances from other counties and

cities in Florida have been upheld. For example, the Eleventh

Circuit in Jnternational Food held that 22 sites left reasonable

alternatives. Jnternational Food, 794 F.2d at 1520. Fort

Lauderdale, at the time of the case, had a population of

approximately 156,000, creating a ratio of 1 site per 7,990

persons. Similarly, the City of Boynton Beach’s ordinance

was found to be constitutional where it had 11 sites available.

Southern Entertainment Co. of Fla., Inc. v. City of Boynton

Beach, 736 F. Supp. 1094 (S.D. Fla. 1990). Based on a

population of approximately 45,000, the ordinance allowed 1

site per 4,090 persons.

In the instant case, a minimum of 6 available sites

exists for a population of approximately 24,100 in an area of

8 square miles; Therefore, 1 site is available for 4,016

persons. Given the size and population of the City, the

number of available sites in this case is reasonable. See

Centerfold Club, 969 F. Supp. at 1306 (holding that St.

Petersburg’s ratio is inadequate with one site per 12,56S

persons). Therefore, summary judgment is due to be granted

in favor of Defendant.

IV. Improper Predicate for the Adoption of Ordinance

(Count IT)

In the Amended Complaint, Plaintiff contends that the

Ordinance was adopted without substantial competent

evidence and, therefore, lacks proper predicate. Plaintiffs

3la

First Amended Complaint (Doc. 21) ¥ 46.

A city’s interest in protecting the quality of urban life

from the secondary effects of adult businesses is indeed

substantial. International Eateries of America, Inc. vy.

Broward County, 941 F.2d 1157, 1162 (11th Cir. 1991), cert.

denied, 503 U.S. 920 (1992). The government interest at stake

must be gleaned from the ordinance itself. Jd. at 1162 n.3. In

International Eateries, the Eleventh Circuit held that the

distance restrictions, specific statements that certain

businesses have a “deleterious effect” on businesses around

them, and the defined purpose of the ordinance as “ensuring

that these adverse effects will not contribute to the blighting

and downgrading of the surrounding neighborhood,” created a

substantial government interest. Jd. at 1162.

Similarly, the Ordinance in the instant case contains a

“Findings of Fact” section which establishes a distance

restriction (§ 14-75); addresses the deleterious effect to urban

neighborhoods (§ 14-69(4) of prostitution, pandering,

solicitation, lewd and lascivious behavior, etc.), and foretells

the blighting and adverse effects on neighboring businesses (§

14-69(5)). The Court previously found in its Order dated

June 10, 1997 (Doc. 25), that this Ordinance is aimed at the

same type of harm found to create a substantial government

interest in Renton and International Eateries. (Doc. 25).

However, such findings of fact alone are not

sufficient. “The enacting body must have a reasonable basis

for its belief that the harm to be protected against in fact

exists.” International Eateries, 941 F.2d 1157, 1162 (11th

Cir. 1991) (citing Renton, 475 U..S. at 50). However, a city

does not need to perform its own studies. Jd. According to the

Court in Renton,

32a

The First Amendment does not require a city,

before enacting such an ordinance, to conduct

new studies or produce evidence independent of

that already generated by other cities, so long as

whatever evidence the city relies upon is

reasonably believed to be relevant to the problem

that the city addresses.

Renton, 475 U.S. at 51-52.

In the instant case, within the “Findings of Fact”

section, the City states that it is relying on the findings

incorporated in Orange County, Florida’s adult entertainment

code and the findings and declarations as stated in Seminole

County, Florida’s adult entertainment code. The Court

previously noted that the findings of fact in these codes are

relevant to the City of Casselberry because Casselberry is in

Seminole County and borders Orange County. (Doc. 25). The

Court did not dismiss the claim, however, because the

findings of those codes were not submitted to the Court at the

time of its pnor Order. /d. As a result, the Court could not

determine whether those findings further a_ substantial

governmental interest. Along with its Motion for Summary

Judgment, Defendant attached both codes. (Doc. 60, Exhibits

15, 16)

Pursuant to Section 1A-16 of the Orange County

Ordinance, the findings of facts are based on:

evidence and testimony presented at

public hearings before the Board of

County Commissioners of Orange

County, Florida, and on the findings

incorporated in the United States Attorney

General’s Commission on Pornography

33a

(1986), Jacksonville Municipal Code,

Chapter 410, Ord. 77-257-256, 5 1, the

Los Angeles Municipal Code, § 12.70,

Ord. 156509 (1982), the Detroit Zoning

Ordinance, 66,000, Ord. 742-G, § 1, 10-

24-82, and “A Summary of a National

Survey of Real Estate Appraisers

Regarding the Effect of Adult Bookstores

on Property Values,” conducted by the

Division of Planning, Department of

Metropolitan Development, Indianapolis,

January 1984... .

The Board of County Commissioners stated that it enacted the

Seminole County code based on the following:

in response to the concerns of the Sheriff

of Seminole County and numerous

residents of Seminole County, have,

through public hearing, heard interested

Parties and citizens for and against the

purposes of this Ordinance and have

reviewed the findings incorporated in

“Adult Entertainment Businesses In

Indianapolis, An Analysis” prepared by

the Division of Planning, Department of

Metropolitan Development, Indianapolis,

Indiana, February 1984, which includes a

summary of a national Survey of real

estate appraisers regarding the effects of

adult bookstores on property values:

“Report on Adult Oriented Businesses in

Austin” prepared by the Office of Land

Development Services, City of Austin,

Texas, May 19, 1986: and the Orange

34a

County, Florida Adult Entertainment

Code, 1987.

The findings of fact of these codes outline the various

findings made by the county concerning the adverse

secondary effects which tend to accompany adult

entertainment. For example, the findings state that adult

activities: (1) lead to other activities, which are illegal,

immoral, or unhealthful, such as prostitution, pandering,

solicitation for prostitution, lewd and lascivious behavior,

exposing minors to harmful material, possession, distribution

and transportation of obscene materials, sale or possession of

controlled substances, and violent crimes against persons, and

property; and (2) attract an undesirable number of transients,

blight neighborhoods, lower property values, promote crime,

and lead residents and businesses to move to other locations.

After reviewing the findings of fact of the Orange and

Seminole County's codes, the Court finds that those findings

further a substantial government interest. Therefore, the City

of Casselberry was entitled to rely on these codes and had a

reasonable belief that the secondary effects of adult

businesses exist.

In its response, Plaintiff argues that the record of the

adoption of the Ordinance contains no evidence whatsoever to

support the need for the Ordinances,” and that the City must

present substantial competent evidence of the need for the

Ordinance. Plaintiff's Opposition (Doc. 65) at 11. The Court

rejects these arguments. A city is not required to conduct new

studies or produce evidence independent of that already

generated by other cities, so long as the evidence the city

relies on is reasonably believed to be relevant to the problem.

Ren ton, 475 U.S. at 51-52. Therefore, because the Court

concludes that the evidence relied upon is reasonably believed

a

35a

to be relevant to the problem caused by adult businesses,

summary judgment is due to be granted in Defendant's favor

‘ as to this issue.

V. Prompt Judicial Review (Count ITI)

Plaintiff alleges that the Ordinance’s licensing scheme

is facially invalid because it does not provide for prompt

judicial review. The judicial review section, § 14-99 of the

Ordinance provides:

(c) Judicial Review. Any decision of

the Community Development

Department, pursuant to Division 2

(License) may be immediately reviewed

as a matter of right by the Circuit Court

upon the filing of an appropniate pleading

by an aggrieved party.

In its Motion for Summary Judgment; Defendant

argues that this provision on judicial review is sufficient to

withstand constitutional scrutiny. For support, Defendant

urges the Court to apply its ruling in Florida Video Xpress, Inc.

v. Orange County, Florida, 983 F. Supp. 1091 (M.D. Fla.

1997).

In Florida Video Xpress, this Court considered the

issue of whether Orange County’s adult entertainment code

provided for prompt judicial review. Jd at 1096 (citing

Redner v. Dean, 29 F.3d 1495, 1501 (11th Cir. 1994)). That

code provided that “[aJny decision of the tax collector . .

may be immediately reviewed as a matter of right by the

circuit court upon the filing of an appropriate pleading by an

aggrieved party.” Jd. at 1098. Plaintiffs in that case argued

that the code provided for prompt judicial filing, not prompt

36a

judicial review. Jd. Additionally, they asserted that in order to

survive constitutional scrutiny, the code must provide for

actual review by a court within a period of time. /d. This

Court rejected the plaintiffs’ arguments and found that:

[t]his provision provides for prompt

judicial review within the meaning of

Freedman, FW/PBS, and Redner. The Code

requires no further exhaustion of

administrative remedies after the tax

collector decides. Orange County need

not, and could not mandate the manner or

time within which the judiciary must

review, an adverse decision by the tax

collector.

Id. at 1098.

Like the code in Florida Video Xpress, the Ordinance in

the instant case explicitly provides for judicial review as a

matter of right to the circuit court upon the denial of an

application. Therefore, the Court finds that the Ordinance

provides for prompt judicial review.

Plaintiff argues that Florida Video Xpress was

incorrectly decided and urges the Court to reexamine the issue

of prompt judicial review and find that the law mandates

prompt judicial resolution. Plaintiff contends that the court

system does not provide for prompt judicial resolution

because “‘[ijf, as is the case in Florida Circuit Courts, a court

has the ability and the discretion to create a delay in reaching

a prompt judicial resolution by setting leisurely hearing,

briefing, and argument schedules, such procedural flexibility

provides absolutely no procedural safeguard ....” Plaintiff's

Opposition (Doc. 65) at 15. However, this Court previously

37a

considered and rejected these arguments in Florida Video

Apress. It is unwilling to reconsider its prior ruling.

Accordingly, summary judgment in favor of Defendant is

appropniate as to this matter.

VII. Proper Enactment of Ordinances 717 and 774

(Counts VIII and IX)

Plaintiff alleges in Counts VIII and IX that Ordinances

717 and 774 were improperly enacted and, therefore, are nul]

and void. Specifically, Plaintiff contends that Ordinances 717

and 774 violate §§ 166.041(3)(c) and 163.3194, Florida

Statutes. Amendment Complaint (Doc. 21) at 99 95-96 and

100-101. Plaintiff also argues that Ordinance 774 is an

unconstitutional multi-subject Ordinance, in violation of §

166.041(2), Florida Statutes. Id. at § 102.

Section 166.04] (3) (c), Florida Statutes, sets forth the

notice and public hearing requirements for the adoption of an

ordinance which rezones specific parcels of private real

property or which substantially changes permitted uses in a

particular zoning district. Defendant argues in its Motion for

Summary Judgment, however, that this section does not apply

to Ordinances 717 and 774 due to H.B. No. 2055, Chapter 95-

310, § 6, which mandates that in enacting these Ordinances,

the City had to follow only § 166.041(2), not § 166.041(3) (c)

H.B. No. 2055, Chapter 95-310, § 6 provides in

relevant part:

If any ordinance or resolution was

adopted prior to the effective date of this

act and the appropriate Subsection of 5

166.041, Fla. Stat. was not followed, but

the municipality followed the procedure

38a

of subsection (2) or subsection (3) of §

166.041, Fla. Stat. as they existed at the

time of the adoption of such ordinance or

resolution, the procedures used for such

ordinance or resolution are hereby

validated and ratified.

This chapter went into effect on June 15, 1995.

Ordinances 717 and 774 were adopted on February 17,

1992 and September 13, 1993, respectively. Because the

Ordinances were adopted prior to June 15, 1995, they had to

comply with only § 166.041(2).

Plaintiff argues that Chapter 95-310 denies Plaintiff

due process and is, therefore, unconstitutional under the Fifth

and Fourteenth Amendments. Plaintiff's Motion for Summary

Judgment (Doc. 61) at 18. In particular, Plaintiff contends that

the Chapter imposes a statute of limitations that prevents

challenges to zoning ordinances. Jd. at 16.

To determine whether Plaintiff was denied procedural

due process in the enactment of the Ordinances, the relevant

inquiry is whether Plaintiff has a liberty or property interest

that was interfered with by the state and whether the state

used constitutional sufficient procedures in interfering with

that interest. First Assembly of God of Naples, Florida, Inc. v.

Collier County, 775 F. Supp. 383, 388 (M.D. Fla. 1991)

(citing Kentucky Dept. of Corrections v. Thompson, 490 U.S.

454 (1989)). The initial determination of whether Plaintiff has

a protectable property interest is governed by state law. Jd.

Under Florida law, procedural due process attaches to zoning

actions which alter the manner in which a property owner can

use the land. First Assembly of God of Naples, Florida, Inc. v.

Collier County, 20 F.3d 419, 422 (11th Cir. 1994), cert.

39a

denied, 513 U.S. 1080 ( 1995). Because Plaintiff was denied a

permit to use the land for an adult club, Plaintiff has met the

first prong of the test.

Under the second prong of the test, due process

requires that persons deprived of a right must be afforded

notice and an opportunity to be heard. Jd. (citing Zinermon v.

Burch, 494 U.S. 113 ( 1990)). Plaintiff does not argue that

notice was not provided or that it was not given an

opportunity to be heard, but that there was only one public

hearing, it was not advertised in a newspaper of general

circulation in the City, the advertisement was placed with the

legal and classified advertisements, and it was not proper in

form and context.

Public notification of Ordinance 717 appeared in a

local newspaper cn F ebruary 2, 1992. Defendant’s Opposition

(Doc. 63), Exhibit 9. In addition, Ordinance 717 was read at

two Commission hearings on February 3, 1992 and February

17, 1992. Jd., Exhibit 5. Further, this Ordinance was the

subject of two public hearings also held on those dates. Jd.

Exhibits 7 and 8.

Public notification of Ordinance 774 appeared in the

Orlando Sentinel on August 29, 1993. Id., Exhibit 11. The

Ordinance was read on August 16, 1993 and on September

13, 1993. Jd., Exhibit 6. Finally, the Ordinance was the

subject of two public hearings held on August 16, 1993 and

September 13, 1993. Therefore, because Plaintiff was

afforded notice of the Ordinances and an opportunity to be

heard at the public meetings, the Court finds that Plaintiff s

due process rights were not violated.

In its Motion for Summary Judgment, Plaintiff

contends that the notice and hearing requirerhents of §

40a

166.041(3), Fla. Stat., constitute a fundamental due process

night. The Court disagrees. As the Eleventh Circuit stated in

First Assembly, 20 F.3d at 422:

Even if the notice in this case is

insufficient to satisfy the state statute, the

state statute does not define the process

due under the federal Constitution.

Therefore, even if the state statute has

been violated, that does not prove a

violation of a federal constitutional nght .

... [W]e emphasize that the violation of a

state statute outlining procedure does not

necessarily equate to a due process

violation under the federal Constitution. If

otherwise, federal courts would have the

task of insuring stnct compliance with the

state procedure regulations and statutes.

Id. (quoting Harris v. Birmingham Board of Education, 817

F.2d 1525, 1527-28 (11th Cir. 1987)). Therefore, even if the

City failed to follow the state procedures, no federal

constitutional right has been infringed.

Because Plaintiff cannot establish a procedural due

process claim, the City had to satisfy only § 166.041(2) to

meet the statutory requirements. That subsection provides:

Each ordinance or resolution shall be

introduced in wmniting and shall embrace

but one subject and tnatters properly

connected therewith. The subject shall be

clearly stated in the title. No ordinance

shall be revised or amended by reference

to its title only. Ordinances to revise or

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amend shall set out in full the revised or

amended act or section or subsection or

paragraph of a section or subsection.

§ 166.041(2), Fla. Stat.

Plaintiff attacks Ordinance 774 by arguing that it is an

unconstitutional multi-subject Ordinance? because it

addresses many subjects, such as handbills, alcoholic

2. Ordinance 774 provides in relevant part:

SECTION I: The Code entitled “Code of Ordinances, City

of Casselberry, Florida,” published by Municipal Code

Corporation consisting of Chapters 1 through 94, each

inclusive, is adopted.

SECTION II: All Ordinances ofa general and permanent nature

enacted on or before March 1, 1993, and not included in this

Code or recognized and continued in force by reference therein,

are repealed...

SECTION IV: Unless another penalty is expressly provided,

every person convicted of a violation of any provision of the

Code or any Ordinance, Resolution, order, rule, or regulation

adopted or issued in pursuance thereof, shall be punished by a

fine not exceeding Five Hundred Dollars ($500.00), or

imprisonment for a term not exceeding sixty (60) days, or both

a fine and imprisonment. Each act of violation and each day

upon which any such violation shall occur shall constitute a

separate offense. The penalty provided by this Section, unless

another penalty is expressly provided, shall apply to the

amendment of any Code Section whether or not such penalty is

reenacted in the amendatory Ordinance. In addition, to the

penalty prescribed above, the City may pursue other remedies,

such as abatement of nuisances, injunctive relief, and

revocation of licenses or permits... .

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beverages, amusements, adult entertainment, animals,

businesses, emergency management, fire protection, floods,

personnel, solid waste, traffic and vehicles, and utilities. In its

Motion, Defendant contends that the Ordinance addresses

only one subject matter — the enactment of a new City Code

for the city of Casselberry. The Court finds Plaintiff's

argument to be without merit. The Ordinance merely adopts

and enacts Chapters 1 through 94 of the City of Casselberry’s

Code. It does not discuss multiple subjects. Thus, Ordinance

774 was properly enacted. Plaintiff does not claim that

Ordinance 717 failed to satisfy this statutory requirement.

In the Amended Complaint, Plaintiff also alleges that

Ordinances 717 and 774 are void ab initio because they were

not referred to a Land Planning Agency for review and a

determination of consistency pursuant to § 163.3194, Fla.

Stat. In its Motion, Defendant submits exhibits demonstrating

that Ordinance 717 was referred to the Land Planning

Agency, but Ordinance 774 did not have to be referred to the

agency because it is not a land development regulation, but

rather an ordinance enacting the City’s Code. Plaintiff does

not contest Defendant’s arguments in its response.

Accordingly, summary judgment is appropriate as to this

issue.

Lastly, Plaintiff asserts that Ordinance 774 is

unconstitutional because it “represents an unlawful delegation

of legislative authority to Municipal Code Corporation.”

Plaintiff's Motion (Doc. 61) at 8-9. Defendant argues that no

unlawful delegation occurred because the Code demonstrates

that the City itself adopted the Code of Ordinances and that

the Code was merely published by Municipal Code

Corporation. Defendant’s Memorandum (Doc. 60) at 9.

Plaintiff does not offer any response to Defendant’s position

and fails to support the argument with legal authority.

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Therefore, the Court rejects Plaintiff's claim. Accordingly,

because the Ordinances were properly enacted, summary

judgment is due to be granted in favor of Defendant.

VIII. Proper Enactment of Ordinance 96-864 (Count X)

In the Amended Complaint, Plaintiff claims that

Ordinance 96-864 should be null and void because it was not

enacted in accordance with § 166.041(3) (c), was not

reviewed by the Land Planning Agency for the City, and is a

multi-subject ordinance.

Subsection (3)(c), as enacted on June 15, 1995

provides in pertinent part:

Ordinances that change the actual list of

permitted, conditional or prohibited uses

within a zoning category, or ordinances

initiated by the municipality that change

the actual zoning map designation of a

parcel or parcels of land shall be enacted

pursuant to the following procedure... .

§ 166.041(3)(c). In its Motion for Summary Judgment,

Defendant initially argues that Ordinance 96-864 did not

change the zoning designation of any parcel of land in the

City and did not change the list of permitted, conditional, or

prohibited uses within any zoning district. Rather, the Unified

Land Development Regulations (“Regulations”), which were

adopted on March 1, 1993, divided the City into zoning

districts and established boundaries. When the Regulations

were adopted, Defendant asserts that the zoning of the

property which is the subject of this lawsuit was changed

from zone C-1. to zone CG. Therefore, Defendant contends

that Ordinance 96-864 merely reflected the change that

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occurred in 1993 and was not a land-use ordinance. As a

result, Defendant claims that the Ordinance did not have to

comply with § 166.041(3)(c)

Ordinance 96-864 amended Ordinance 717. Ordinance

717 specifically permitted adult uses in the C-1 Zoning

District. Ordinance 757, adopted on March 1, 1993, abolished

the C-1 Zoning District and adopted the Unified Land

Development Regulations. Since the adoption of the

Regulations, the City argues that adult uses have been

permitted as an “amusement (enclosed)” in the CG zoning

district. See Affidavit of Wells, Exhibit B, at 2:17. Although

the term “amusement (enclosed)” is not specifically defined

in the Regulations, the chapter in the City’s Code that

addresses adult entertainment establishments is _titied

“Amusements.” From this, it is clear that the reference to

“amusements” in the Regulations includes adult entertainment

establishments. Therefore, because the change in zoning

classifications occurred when the Regulations were adopted,

the Court finds that Ordinance 96-864 merely reflects the

previous change from C-1 to C-G.

Because the Ordinance is not a zoning ordinance, it

must be enacted in accordance with § 166.041(3)(a). That

subsection provides:

Except as provided in paragraph (c), a

proposed ordinance may be read by title,

or in full, on at least two separate days

and shall, at least ten days prior to

adoption, be noticed once in a newspaper

of general circulation in the municipality.

The Notice of Proposed Enactment shall

state the date, time and place of the

meeting; the title or titles of the proposed

-

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ordinance; and the place or places within

the municipality where such proposed

ordinances may be inspected by the

public. The notice shall also advise that

interested parties may appear at the

meeting and be heard with respect to the

proposed ordinance.

Ordinance 96-864 was adopted on June 17, 1996.

Defendant’s Opposition (Doc. 63), Exhibit 14. The title was

read twice on June 3, 1996 and June 17, 1996. /d. at Exhibits

14-16. The Ordinance was advertised May 26, 1996, June 2,

1996, and June 9, 1996 in the Orlando Sentinel, a newspaper

of general circulation. Jd, Exhibit 17. The three

advertisements are identical except that the first two contain

typographical errors. Rather than referencing “CG,” the May

26, 1996 advertisement referenced “‘C-6" and the June 2, 1996

advertisement referenced “C-O.” However, each

advertisement made two references to “Commercial General”

as the zoning classification. The notices also stated the date,

time, place of the meeting, title, and place within the

municipality where the Ordinance can be inspected. /d. at

Exhibit 17.

Plaintiff argues that the typographical errors are

significant and should render the Ordinance void. However,

the Court finds that the errors are minor, especially since the

zoning Classification was spelled out completely in the title

and in the legend of the map attached. Accordingly, the

notices met the requirements of S 166.041(3) (a)

In its Motion for Summary Judgment, Defendant also

argues that Ordinance 96-864 was not required to be reviewed

by the Land Planning Agency since it did not change the

zoning classification. As previously determined, the

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Ordinance did not change the zoning classification, but

merely reflected a change that occurred when the Regulations

were adopted. Therefore, the City did not need to have the

Ordinance reviewed by the Land Planning Agency. Lastly,

Defendant argues that the Ordinance does not violate the

prohibition against multi-subject ordinances. Plaintiff does

not contest this issue. Accordingly, because Ordinance 96-

864 was properly enacted, summary judgment is due to be

granted in favor of Defendant as to this issue.

IX. Overbroad (Count VII)

In the Amended Complaint, Plaintiff alleges that the

provisions of the challenged legislation are substantially

overbroad. Defendant asserts in its Motion for Summary

Judgment that the Ordinance is not overbroad because it is

aimed at combating the adverse secondary effects of adult

entertainment establishments. Plaintiff fails to present facts or

argument in response. Therefore, summary judgment is due to

be granted in favor of Defendant as to this issue.

X. Damages

Finally, Defendant argues that Plaintiff did not

specifically state any special damages in the nature of lost

profits in the Amended Complaint. Because Defendant’s

Motion for Summary Judgment is otherwise due to be

granted, there is no need for the Court to address this issue.

XI. Conclusion

Based on the foregoing, it is ORDERED as follows:

1. Defendant’s Motion for Summary Judgment

(Doc. 59), filed February 9, 1998, is GRANTED.

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Z. Plaintiffs Motion for Summary Judgment

(Doc. 61), filed February 9, 1998 is DENIED.

3. This case is removed from the May 1998 trial

calendar.

4. The clerk shall enter final judgment for

Defendant providing that Plaintiff shall take nothing on its

claims against Defendant and that Defendant shall recover

costs.

3. The clerk shall close this case.

6. All pending motions are DENIED AS MOOT.

DONE AND ORDERED jin Chambers, Orlando.

Florida, this 11" day of May, 1998.

Anne C. Conway

United States District Judge