Reply Brief — Koziara v. Seminole County

Supreme Court. U S_

(2) | OCT 292004 |

OFFICE Ot THE CLERK |

In The

Supreme Court of the Anited States

¢

PAULINE KOZIARA, and

KATHLEEN DeRIENZO,

Petitioners,

vs.

SEMINOLE COUNTY, FLORIDA,

Respondent.

+.

vy

On Petition For A Writ Of Certiorari

To The Florida Fifth District Court Of Appeal

a

vv

PETITIONERS’ REPLY TO RESPONSE

IN OPPOSITION TO A WRIT OF CERTIORARI

e

vv

STEVEN G. MASON, Esq.

Counsel of Record

STEVEN G. MASON, P.A.

1643 Hillcrest Street

Orlando, FL 32803

(407) 895-6767

Fax (407) 895-2090

Attorney for Petitioners

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee ee I aire dicknecscrasdnchiinicensnecnererenmincsenbinnins i

et itis estncsantrcracaneaacabcniiiaitnesenteccemnies il

It is illogical to argue that a legislative record exists

which can be used to uphold this ordinance when

the ordinance was rejected by the legislature........ 1

The Alameda Books’ Standard ..................cccccceceeeeeees 7

The county fails to address the bathing suit re-

quirement under Pap’s, Alameda Books, and

I i caiitsaccanriciiecancasntaleomeretantns 8

The Fifth District affirmed the trial judge’s order.

That decision is within this court’s jurisdiction..... 9

EO TOC LAA Ee Aa 10

il

TABLE OF AUTHORITIES

Page

CASES CITED:

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)................... 9

City of Los Angeles v. Alameda Books, 535 U.S. 425

CHET vcinnssesiucaresricnssiiaeaaatinseuiaiidaaaanaaanemaes 7,8

Corona v. Florida, 124 S.Ct. 1658 (2004)... ee. 10

J.L. Spoons, Inc. v. Morckel, 314 F Supp.2d 746 (ND

FUE Se Dx <nessscnsicsansicennssuceneonenetieammaiamanmneeiimemiaiiodiean 10

Jenkins v. State, 385 So.2d 1356 (Fla. 1980)............00.... .. 10

Peek-A-Boo Lounge v. Manatee County, 337 F.3d

BE CERI: CI ee ea disnnssencsacgtistnsarac cu cadennaanmndincincia 9

R.A.V. v. City of Rockford, 361 F.3d 402 (7th Cir.

BE wikia ceeximnneniaila setdaidsa athe titi ald align accsceat nek ds 9

United States v. O’Brien, 391 U.S. 367 (1968)........0....00.0... 9

IT IS ILLOGICAL TO ARGUE THAT A

' LEGISLATIVE RECORD EXISTS WHICH

CAN BE USED TO UPHOLD THIS ORDINANCE

WHEN THE ORDINANCE WAS REJECTED

BY THE LEGISLATURE

In their brief, the petitioners explained in great detail

that Seminole County’s “public decency” ordinance was

repeatedly rejected by the Seminole County Commission.

In response, Mr. Nelson claims that the petitioners are

“misrepresenting the record” by making misstatements of

fact. However, the fact remains, the county commission’s

decision to reject the ordinance was trumped and over-

ruled by a political action committee called Seminole

County Citizens for Public Decency which gathered the

required signatures to create a binding political referen-

dum.

The cavalier statements by the county can be quickly

rebutted by reviewing the ordinance attached to the

petitioners’ brief (Appendix E). There, at the top of the

first page, next to the heading “Editor’s Note,” the

ordinance reflects that it was initiated by the Seminole

County electorate, pursuant to the Seminole County Home

Rule Charter (signatures and binding referendum), and

ultimately passed after a majority of the electorate voted

in favor of the ordinance. Thereafter, the Seminole County

Commission was required to declare the ordinance passed.

What is equally disturbing is that these same inflam-

matory tactics were employed by the county’s attorney

during the trial. Mr. Nelson’ argued that the ordinance

* Mr. Nelson, who spearheads an entity known as the American

Liberties Institute, agreed to represent the county without fees or costs.

2

was passed by the legislature — when it was not. At one

juncture, the trial judge became angry and stated:

The Court: Only this morning I recollected that

this ordinance was passed by refer-

endum. And I wondered rhetori-

cally if anything the county

considered is relevant since they

never passed the ordinance.

(MR11/133).

* * *

The Court: Why do I feel like [’m being

tricked? They either passed the

damn ordinance or they didn’t.

(MR11/139).

* * *

The Court: You are twisting my words. The

County Commission voted to put it

on the ballot.

Mr. Nelson: Yes, your honor.

(MR11/144).

In other words, once the PAC gathered the required

signatures to place the ordinance on the ballot, the county

commissioners could not stand in its way, and, after it was

passed, the county charter required that the commission

declare it passed.”

Obviously, if the legislature wanted to pass the ordi-

nance, there would be no necessity for a signature petition

drive or a binding referendum. The unique interpretation

* All of the minutes from the county commission meetings were

moved into evidence at the trial and it is these documents which are

referenced in the petition addressing the procedural history of the

ordinance.

|

|

|

|

3

of the record employed by respondent’s counsel is also

manifest in his description of the trial court’s assessment

of Dr. George’s testimony. For instance, the county argues

that Dr. George’s testimony was accepted by the court,

rather than rejected as advanced by the petitioners. A

simple review of the judge’s order, attached to the petition

as Appendix B, exemplifies the spin employed here.

It is disappointing to realize that the federal gov-

ernment has wasted the tax payers’ money on

this ridiculous research. If Dr. George truly

takes himself seriously, then perhaps he should,

like the Emperor in the tale by Hans Christian

Anderson, check to see if his science is cloth-

ing or in his imagination.

App. B at n. 2 (Emphasis added).

In addition, during the trial, the judge Guia Dr.

George directly which highlighted the fact that Dr. George

had never heard of the concept of adverse secondary

effects before being hired in this case.

Dr. George: Because the reality is that as Mr.

Mason pointed out I had never

heard the phrase adverse secondary

effects before this case.

The Court: Okay. Well, let me help you just a

second before you answer because I

know about it.

Dr. George: Okay.

(T5/808).

Likewise, the county argues that its concession on

property values is immaterial because the ordinance did

not make reference to that issue. If this were so, why does

the ordinance contain the following language?

Whereas, the citizens of Seminole County desire

to protect and preserve the wholesome character

4

of Seminole County as a family oriented commu-

nity with a high quality of life offered for

families, tourist and businesses;

(R7/1073) (Emphasis added).

[wjorking directly against Seminole County’s

economic development and tourism develop-

ment activities; ...

(R7/1076) (Emphasis added).

The reports tendered by the petitioners’ experts, Dr.

Fisher and Richard Schauseil, address commerce, residen-

tial property values, whether people were deterred from

visiting the areas where the adult clubs are located,

economic development and commercial property values.

Faced with this overwhelming data, the city and county

capitulated and conceded that the ordinance could not

withstand a challenge based upon these economic issues.

Moving past all of this, this court can see from review-

ing the trial court’s order (upheld by the district court of

appeal), that the finder of fact rejected Seminole County

and Casselberry’s evidence. To the contrary, Seminole

County continues to argue that Lieutenant Allen’s testi-

mony regarding the prostitute decoy supports the ordi-

nance. Again, this evidence was rejected by the finder of

fact.

Some of the testimony revealed anecdotal, rather

than scientific studies. A lieutenant from the

Seminole County Sheriff’s Department’ testified

that he was in charge of an exercise in which a

female deputy posed as a prostitute and stood

near the intersection of highway 17-92 and

highway 436 in the city. The intersection of those

* Referring to Lieutenant Allen.

5

two highways is one of the busiest in the state of

Florida and is near the location of the Club

Juana. Not surprisingly, the female deputy was

attracting more than passing attention from

some of the motorists driving by. Then she moved

some distance down highway 17-92 to the en-

trance of a residential subdivision and, after an

hour, she only attracted the city police, who re-

ceived a complaint from one of the neighborhood

residents about her presence.

It was admitted this exercise was not scientific

and the court gives no credibility to it for

proof that the Club Juana or any other adult club

in the area produces adverse secondary effects.

Prostitution, after all, has been around for thou-

sands of years and is not caused by adult clubs

any more than it is caused by hotels or Internet

websites.

App. B (Emphasis added).

Finally, a brief word should be said about Dr. Terry

Danner, one of the plaintiffs’ experts. Dr. Danner analyzed

data from all of the adult nightclubs in Seminole County —

they are all located in Seminole County and the ordinance

applies countywide even within the local municipalities.

His testimony spans hundreds of pages and addresses

both local and state criminal data. It was accepted by the

trial judge. “His testimony cast more doubt ... ™ Regarding

why Seminole County’s ordinance was passed, Dr. Danner

explained, “It’s public opinion, it’s political influence, it’s

not science. It’s just opinion.” (MR14/614-615). In fact,

* Although this quote references the city’s evidence, it should be

remembered that the evidence presented by the city and the county was

presented and adopted jointly by both Casselberry and Seminole

County.

6

there is no way to determine from an objective standpoint

why the community passes a law in an election.

Finally, the city and the county presented evidence

that there was an undercover investigation at one of the

Seminole County nightclubs, Rachel’s, and arrests oc-

curred. That evidence is flawed for a number of reasons.

First, the county made no effort to compare this dava with

any other non-adult venue. Yet, that is exactly what the

petitioners’ expert did. Dr. Danner provided global statis-

tics for the entire county and city, addressing crime both

before and after the ordinance(s) as well as trends in

crime, rape statistics, index crime statistics, et cetera. The

county also fails to point out that the testimony from Mr.

Mulrenin also included his statement that the owners of

the Rachel’s nightclub were adamantly opposed to drugs.

Q. And do I also take it that the people who

own Rachel’s they didn’t want drugs or nar-

cotics? In other words, these people were

opposed to drugs? Do I also understand

that right? Is that what you told me in depo-

sition?

A. Right.

Q. They didn’t like drugs. They didn’t want

anything to do with drugs, and they didn’t

want them in the business?

A. Correct.

(MR16/1121-1122).

The county also fails to tell the court that the lead

investigator in the “Rachel’s investigation” was investi-

gated by his own department for having a sexual relation-

ship with one of the dancers he supposedly was

investigating and prosecuting. In other words, the police

had less than clean hands in this “investigation.”

7

Do you know if ultimately Mr. Laney was inves-

tigated by the Internal Affairs Department by

having a sexual relationship with a dancer that

he investigated and prosecuted?

(R16/1042).

* * *

It’s the same question. That’s not relevant to the

validity of the ordinance.

Mr. Mason: I mean I understand you're probably

right [m just trying to do a little

credibility here to show that a lot of

money spent, a lot of things going on

with the police. That the police don’t

have clean hands in this. That the

reasonable person might conclude

that they have unclean hands.

They’re going in over there for

six months. Pumping the money

to them. Then they’re having sex

with people they’re prosecuting.

I mean, they’re having sex.

The court: You made your point. I got it.

(R16/1043).

¢

THE ALAMEDA BOOKS’ STANDARD’

There are a great many reasons why this court should

accept this case. First, it provides the court a concrete oppor-

tunity to address the Alameda Books’ standard in the context

of a trial on the merits. Second, the lower court evaluated the

strength and credibility of the city and county’s evidence and

* City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002).

8

rejected it. Rather, the court upheld the city’s ordinance based

upon political reasoning that these ordinances could be upheld

based upon political equity (if a neighboring community had

already enacted such an ordinance), and, as an after thought,

stated that Seminole County's ordinance could be upheld

based upon its preamble. However, that statement contradicts

Alameda Books. Once the ordinance was challenged and the

plaintiffs cast doubt upon it, it was Seminole County’s re-

quirement to place credible evidence in the record to uphold it.

That did not occur. This flaw in the court’s reasoning is

exacerbated by the fact that the Seminole County ordinance

has no pre-enactment legislative record — because same was

rejected by the commissioners. There was no evidence pre-

sented at the “ballot box,” rather, voters were asked to vote for

or against “public decency.” Aside from this, only a handful of

materials were filed which were presented to the commission-

ers such as the meeting minutes and a package prepared by

the American Family Association.*

+

THE COUNTY FAILS TO ADDRESS THE BATHING

SUIT REQUIREMENT UNDER PAP’S, ALAMEDA

BOOKS, AND PEEK-A-BOO LOUNGE

Seminole County’s ordinance requires exotic dancers

to wear bathing suits. The county has never advanced

* The county provides a string cite at the bottom of page five of its

response. These are citations to the commission meeting minutes,

documents tendered by Lieutenant Allen, a neighboring county

ordinance on public nudity, speaker lists and comments from the

commission meetings, and the American Family Association documents.

This is far from a voluminous legislative record and, from a relevance

standpoint, it must be repeated that when faced with these materials,

the county commission repeatedly voted the ordinance down.

PO

9

any secondary effects justification as to why a bathing suit

requirement was chosen (i.e. compared to a g-string

requirement). Even before this court, Seminole County

does not address the issue head-on. The county ignores it.

A central point in this petition is whether the bathing

suit requirement imposed on exotic dancers violates the

fourth prong of United States v. O’Brien, 391 U.S. 367

(1968) as discussed by Justice O’Connor in City of Erie v.

Pap’s A.M., 529 U.S. 277 (2000) and by the Eleventh

Circuit in Peek-A-Boo Lounge v. Manatee County, 337 F.3d

1251 (11th Cir. 2003). Even before this Court, the city does

not attempt to justify this highly restrictive bathing suit

ordinance. Rather, its response is silent on the subject.

This court has never upheld a bathing suit require-

ment. The Eleventh Circuit all but invalidated one in

Peek-A-Boo, and the Seventh Circuit recently invalidated

an ordinance which also addressed heightened clothing

attire. See R.A.V. v. City of Rockford, 361 F.3d 402 (7th Cir.

2004). Here, the trial judge accepted Dr. Hanna’s statement

that this amount of clothing destroys the erotic message

conveyed in a striptease act. This point was accepted by the

trial court and affirmed by the state Court of Appeal.

Considering this, how could the ordinance be upheld?

¢

THE FIFTH DISTRICT AFFIRMED THE TRIAL

JUDGE’S ORDER. THAT DECISION IS

WITHIN THIS COURT’S JURISDICTION

Ms. Koziara and Ms. DeRienzo could not seek review

with the Florida Supreme Court based upon a per curium

affirmance issued by the state District Court of Appeal. In

1980 the Florida Constitution was amended abolishing

“certiorari review” at the Florida Supreme Court and

10

replacing it with a more narrow form of review called

“discretionary review.” See generally Jenkins v. State, 385

So.2d 1356 (Fla. 1980). As such, the Koziara/DeRienzo

PCA was not reviewable by the Florida Supreme Court

and the Fifth District Court’s decision is a final reviewable

decision in this case.

The county now incorrectly argues that this court is

likewise foreclosed from reviewing a PCA from a state

District Court. The Supreme Court of the United States is a

court of certiorari review not a more narrow form of review

as described in the Florida Constitution. Furthermore, this

Court recently granted a petition for writ of certiorari from

the same Florida Court of Appeal from the issuance of a

PCA. See Corona v. Florida, 124 S.Ct. 1658 (2004).

,

vy

CONCLUSION

Courts and litigants across this country need guidance

and instruction from this Court on the full import of the

Alameda Books’ standard. See generally, J.L. Spoons, Inc.

v. Morckel, 314 FSupp.2d 746, 755-757 (ND OH 2004)

(“clearer guidance in this area would greatly aid the court

...”]. That is one of the reasons it is so important for this

Court to accept and review this case.

Respectfully submitted this 29th day of October,

2004.

Steven G. Mason, Esq.

Counsel of Record

Steven G. Mason, P.A.

1643 Hillcrest Street

Orlando, FL 32803

(407) 895-6767

Fax (407) 895-2090

Attorney for Petitioners