Appendix C — City of Tampa v. Voyeur Dorm, L. C.

App. 29

IN THE UNITED STATES OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-16346-FF

VOYEUR DORM, L.C., a Florida Limited liability com-

pany, ENTERTAINMENT NETWORK, INC., a Florida

corporation, AUTUMN DAWN MARENGER, 2 D&K,

INC.,

Plaintiffs-Appellants,

DAN MARSHLACK,

SHARON GOLD MARSHLACK,

Plaintiffs,

versus

CITY OF TAMPA, FL, a Florida municipal corporation,

Defendant-Appellee.

On Appeal from the

United States District Court for the

Middle District of Florida

ao

(Filed Nov. 15, 2001)

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

App. 30

(Opinion » Se Oe, Fes as OO

Before: TJOFLAT, DUBINA and DUHE*, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Joel F. Dubina

UNITED STATES CIRCUIT JUDGE

* Honorable John-M. Duhe, Jr., U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

APPENDIX D

App. 31

AGREEMENT

THIS AGREEMENT is made in Tampa, Florida, on

the 1st day of June, 1999, between Voyeur Dorm, L.C. a

Florida limited liability company having its principal

office at 6965 1st avenue North, St. Petersburg,

Florida 33710 (“VDORM”), and Autumn Marenger.

(“EMPLOYEE”).

WITNESSETH:

WHEREAS, VDORM is engaged in the business of,

among other business lines, providing Internet based

entertainment services to customers throughout the

world and has invested substantially in the development

of computer techniques, marketing programs, software,

services, systems, and other confidential property, infor-

mation, and trade secrets, and inventions, discoveries,

improvements or developments (herein designated

“inventions”); and

WHEREAS, VDORM enters into contracts with its

customers and must ensure that customer programs,

data, and information remain confidential; and

WHEREAS, the EMPLOYEE in the course of his or

her employment has access to inventions, and to such

techniques, programs, software, services, systems, and

other confidential property, information, and trade

secrets of VDORM and the customers of VDORM; and,

WHEREAS, the EMPLOYEE acknowledges that it is

essential to the conduct of VDORM’s business and to the

protection of the investment of its members that such

‘aici

App. 32

information be kept confidential and treated as secret and

that its customer relationships must be protected; and,

WHEREAS, VDORM desires to protect and preserve

its trade secrets and confidential business information

and to protect its customer relationships; and

WHEREAS, the EMPLOYEE desires to enter the

employment of, or to maintain his or her employment

with, VDORM;

WHEREAS, EMPLOYEE desires and intends to allow

VDORM or its assigns, to commercially photograph and

broadcast the images and likeness of EMPLOYEE, live,

over the internet 24 hours a day 7 days a week, as

hereinafter provided; and,

WHEREAS, in consideration of EMPLOYEE allowing

VDORM or its assigns, to commercially photograph and

broadcast the images and likeness of EMPLOYEE, live

over the internet 24 hours a day 7 days a week, as

hereinafter provided, VDORM agrees to allow

EMPLOYEE to occupy and use a furnished bedroom and

all common areas at the furnished dwelling located at

2312 Farwell Drive, Tampa, Florida, 33603, and other

benefits as set out below, on the following terms and

conditions;

NOW THEREFORE, IT IS AGREED:

1. TERM: This Agreement commences on June 1, 1999

and may be terminated at will by either party.

a

a. Notwithstanding any provisions to the contrary

contained in this Agreement, VDORM may

deliver a written notice of cancellation of this

Agreement to EMPLOYEE, at will.

neler eeeateirletemeeeeieennentteintnt ce i

ea

App. 33

b. Upon delivery of the termination notice

EMPLOYEE'S employment by VDORM shall

immediately terminate and the EMPLOYEE shall

immediately remove her personal property, leave

and surrender the premises to VDORM.

2. MUTUAL CONSIDERATION: In return for the bene-

fits set out herein to be provided by VDORM to

EMPLOYEE during the term of this Agreement,

EMPLOYEE, during the term of this Agreement,

shall allow VDORM to commercially photograph

and broadcast the likeness of EMPLOYEE, live, over

the internet 24 hours a day 7 days a week, as here-

inafter provided.

3. OCCUPANCY: The premises shall be occupied only ~

by EMPLOYEE and other EMPLOYEEs approved by

VDORM and no others as a private residence and for

no other use or purpose.

_ 4. ASSIGNMENT: Without the prior written consent of

VDORM, EMPLOYEE shall not assign this Agree-

ment.

5, UTILITIES: VDORM agrees to pay for all utilities,

including electricity and local telephone, used by

EMPLOYEE at the Farwell location, during the term

of this Agreement. VDORM shall pay water and

sewer charges and the cost of garbage and trash

collection.

6. REPAIRS: EMPLOYEE shall take good care of the

premises and the appliances and fixtures in them.

VDORM shall, at VDORM’s expense, perform all

ordinary repairs and maintenance to the premises.

However, VDORM may repair, at the expense of

EMPLOYEE, all damage or injury to the premises,

or to the building, done by EMPLOYEE or

EMPLOYEE’s agents, visitors, or licensees, caused

App. 34

by installation or removal of furniture or other prop-

erty, or resulting from the overflow of water, or any

other cause, due to the carelessness, negligence, or

improper conduct of EMPLOYEE or EMPLOYEE’s,

agents, visitors, or licensees. There shall be no lia-

bility on the part of VDORM for the making of any

repairs, alterations, additions, or improvements in,

or to any portion of, the building or premises, and

no liability on VDORM for failure to make any

repairs, alterations, additions, or improvements in,

or to any portion of, the building or premises.

7. ANIMALS: EMPLOYEE shall keep no domestic or

other animals in, about, or on the premises without

the prior written consent of VDORM.

8. GUESTS: EMPLOYEE shall NOT permit or allow any

guests on the premises without the prior written

consent of VDORM.

9. ENTRY: EMPLOYEE acknowledges that the premises

are, in addition to being the residence of

EMPLOYEE, a stage and filming location for com-

mercial internet broadcasting of the day to day activ-

ities of EMPLOYEE and other fellow EMPLOYEES,

24 hours per day, 7 days a week. VDORM’s agents

shall have the right to enter the premises at all hours

for any purpose whatsoever related to the business

of VDOEM and whenever necessary to make repairs

and alterations. EMPLOYEE shall make no alter-

ations, changes, or improvements to the house and

outside premises.

10. EMPLOYEE’S OBLIGATIONS.

A. EMPLOYEE shall not touch, alter, move or in

any way interfere with the location or operation

of the “LIVE HIDDEN VOYEUR CAMERAS”

that are located in and on the premises, or that

App. 35

) may from time to time be located on the prem-

ises.

EMPLOYEE agrees to defend, indemnify, save

and hold VDORM, its assigns, employees, offi-

cers and directors harmless from and against all

claims, damages, losses and expenses including

attorney’s fees arising out of EMPLOYEE’s

activities while on the premises, which are for

bodily injury, illness or death, criminal charges

or for property damage, including loss of use,

and caused in whole or in part by the

EMPLOYEE’s act of omission.

EMPLOYEE shall be responsible for all condi-

tions created or caused by the negligent or

wrongful act or omission of the EMPLOYEE, or

other person on the premises with EMPLOYEE’s

consent.

-

At all times during the term of this Agreement,

the EMPLOYEE shall:

i. Keep the premises clean and sanitary.

ii. Remove all garbage in a clean and sanitary

manner.

iii. Keep all plumbing fixtures clean and sani-

tary.

iv. Not destroy, deface, damage, impair, or

remove any part of the premises or prop-

erty in them belonging to VDORM, or per-

mit any person to do so.

v. Conduct herself, and require other persons

on the premises with EMPLOYEE'S con-

sent to conduct themselves, in a manner

that does not unreasonably disturb other

employees, the neighbors or constitute a

breach of the peace.

11.

12.

13.

App. 36

vi. Use and operate in a reasonable manner all

electrical plumbing, sanitary, heating, ven-

tilating, air-conditioning, and other facili-

ties and appliances.

vii. Comply with all rules and regulations pro-

mulgated by VDORM and VDORM’s des-

ignated Agents, (housemothers) as they

may be appointed from time to time.

EMPLOYEE ACKNOWLEDGEMENT. EMPLOYEE

acknowledges and consents that at all times that she

is present on the premises, she will be monitored

and photographed by “LIVE HIDDEN VOYEUR

CAMERAS” and that same will be commercially

broadcast, live and unedited over the internet, 24

hours a day, 7 days a week. EMPLOYEE acknowl-

edges that she has received, understood and for

value received, signed a “RELEASE” of even date

herewith.

WASTE AND NUISANCE: EMPLOYEE agrees that

EMPLOYEE will not commit waste on the premises,

will not maintain or permit to be maintained a nui-

sance on the premises, nor will use the premises, or

permit their use, in an unlawful manner.

REQUIREMENTS OF LAW: EMPLOYEE shall com-

ply with all laws, orders, and regulations of federal,

state, county, and municipal authorities that impose

any duty on VDORM or EMPLOYEE with respect to

the premises or the use or occupation of them.

EMPLOYEE shall not do, or permit to be done, any

act or thing on the premises that shall or might

subject VDORM to any liability or responsibility for

injury to any person or persons or to any property

by reason of any operation occurring on the prem-

ises. EMPLOYEE shall reimburse VDORM for all

expenses incurred as a result of EMPLOYEE,

or EMPLOYEE’S family, EMPLOYEE’S, agents,

{

14.

15.

16.

17.

App. 37

licensees, or visitors, who violate the covenants and

terms of this Agreement.

WAIVERS: A waiver by VDORM of a breach of any

covenant or duty of EMPLOYEE under this Agree-

ment is not a waiver of a breach of any other cove-

nant or duty of EMPLOYEE, or of any subsequent

breach of the same covenant or duty.

END OF TERM: On the termination of this Agree-

ment, EMPLOYEE shall immediately quit and sur-

render the premises to VDORM in as good condition

as they were at the commencement of this Agree-

ment, ordinary wear excepted, and EMPLOYEE shall

immediately remove all of her personal property.

FEES AND EXPENSES: If EMPLOYEE defaults in the

performance of any term or covenant required under

this Agreement, VDORM may immediately or at any

time after the default and without notice to the

EMPLOYEE, perform the obligation. VDORM’s

expenses or obligation for the payment of money,

including attorneys’ fees, in instituting, prosecuting,

or defending any action or proceeding including

interest and costs, are due and payable by

EMPLOYEE to VDORM within three days follow-

ing the presentation of a bill or statement to

EMPLOYEE. If the Agreement term has expired at

the time the VDORM makes these expenditures or

incurs these obligations, the amounts are recoverable

by the VDORM from the EMPLOYEE as damages.

INTERRUPTION OF SERVICE: Interruption or fail-

ure of any service in the building, if due to causes

beyond VDORM’S control, shall not entitle

EMPLOYEE to any claim against VDORM, and shall

not constitute breach unless VDORM shall fail to

take measures as may be reasonable in the circum-

stances to restore the service without undue delay.

18.

19.

20.

21.

App. 38

ABANDONMENT: If at any time during the term of

this Agreement, EMPLOYEE abandons the premises,

VDORM may reenter the premises, by any means,

without being liable for any prosecution, and with-

out becoming liable to EMPLOYEE for damages or

for any payment of any kind whatever. If the

EMPLOYEE surrenders or abandons the premises,

VDORM shall not be liable or responsible for storing

or disposing of any of the EMPLOYEE’s personal

property remaining on the premises. In the absence

of actual knowledge of abandonment, VDORM may

presume that the EMPLOYEE has abandoned the

premises if she is absent from the premises for a

period of three days unless VDORM has agreed to

the absence in writing prior to an intended absence.

USE OF GOODS AND CHATTELS: EMPLOYEE cov-

enants that EMPLOYEE will carefully and economi-

cally use the appliances contained in the house and

further covenants that EMPLOYEE will not transfer

the use or possession of the appliances to any other

person, without the written consent of VDORM.

EMPLOYEE will repair all injury and pay all dam-

ages that may happen or accrue to the appliances

during the term of this Agreement arising out of

EMPLOYEE’s negligence.

VEHICLES: EMPLOYEE shall not keep or permit to

be kept on the premises any junk vehicle, vehicle on

which current registration plates are not displayed

trailer, truck, camper, camp truck, house trailer, boat,

motorcycle, van or the like, nor shall there be any

repair or extraordinary maintenance of automobiles

or other vehicles on the property.

COMPENSATION: EMPLOYEE acknowledges and

consents that VDORM shall commercially broadcast

the likeness and images of EMPLOYEE, live over the

internet 24 hours a day, seven days a week, and

22.

23.

App. 39

covenants and agrees with VDORM that EMPLOYEE

shall receive compensation as set forth in Exhibit B

hereto. EMPLOYEE acknowledges and expressly

agrees and consents to the schedule of deductions

and offsets for rule infractions set forth in Exhibit B.

EXTENT OF SERVICE. As part of EMPLOYEE’S

duties, EMPLOYEE agrees to devote 8 hours per day,

6 days per week, to the following on camera activ-

ities:

E. 3-4 hours of “chat” per dy.

F. 4-5 hours per day of “scheduled activities”.

Included within “scheduled activities” by way

of example and not limitation are; swimming,

tanning, working out, aerobics, theme parties

and special events, studying, arts and crafts,

personal grooming and ablutions, selecting

attire and dressing, and such other activities that

VDORM may from time to time specify.

G. EMPLOYEES shall study class assignments not

less than 1.5 hours per day as part of their

educational obligation.

H. Attend and complete not less that 6 credit hours

of college level courses per term.

BONUS: Provided that EMPLOYEE fully and faith-

fully complies with all terms and conditions of this

Agreement for the term(s) set out below, VDORM

shall pay to EMPLOYEE the monies set out below

adjacent to the respective term(s):

a. Upon completion of four -

months the sum of: $ 400.00

b. Upon completion of eight

months an additional sum of: $ 800.90

c. Upon completion of one year

an additional sum of: $1,200.00

App. 40

24. RESTRICTIVE COVENANT. During her employ-

ment with VDORM and for a period of two (2) years

immediately following termination of such employ-

ment, whether by termination of this Employment

Agreement by VDORM with or without cause,

wrongful discharge, or for any other reason what-

soever, the EMPLOYEE shall not, directly or indi-

rectly, either as an individual on her own account or

as a partner, joint venturer, employee, agent, sales-

man, contractor, officer, director, or stockholder or

otherwise, enter into, engage in, or accept employ-

ment from any business in competition with the

business of VDORM, as such business now exists or

as it may exist at the time of termination, anywhere

in the United States (“the Restrictive Covenant”);

this Restrictive Covenant specifically includes as

prohibited businesses, but it is not limited to, pro-

viding Internet entertainment based on a residential

setting, and the like.

This Restrictive Covenant on the part of the

EMPLOYEE is given and made by the EMPLOYEE to

induce VDORM to employ the EMPLOYEE and to

enter into this Employment Agreement with the

EMPLOYEE, and the EMPLOYEE hereby acknowl-

edges the sufficiency of the consideration for this

Restrictive Covenant.

This Restrictive Covenant shall be construed as an .

agreement independent of any other provision in

this Agreement, and the existence of any claim or

cause of action of the EMPLOYEE against VDORM,

whether predicated upon this Agreement or other-

wise, shail not constitute a defense to the enforce-

ment by VDORM of this Restrictive Covenant.

VDORM has fully performed all obligations entitling

it to this Restrictive Covenant, and this Restrictive

Covenant therefore is not executory or otherwise

subject to rejection under the Bankruptcy Code.

ee te ee Te ae

25.

App. 41

This Restrictive Covenant is a reasonable and neces-

sary restraint of trade and does not violate the Sher-

man Antitrust Act, the Florida Antitrust Act, or the

common law; it is supported by valid business inter-

ests, including the protection of VDORM trade

secrets and confidential business information and

the protection of VDORM’S relationships with its

customers and prospective customers, and the two

(2)-year restriction is essential to the full protection

of those valid business interests.

If any portion of this Restrictive Covenant is held by

a court of competent jurisdiction to be unreasonable,

arbitrary, or against public policy for any reason,

this Restrictive Covenant shall be considered divisi-

ble as to line of business, time, and geographic area;

if a court of competent jurisdiction should determine

the specified lines of business, the specified period,

or the specified geographic area to be unreasonable,

arbitrary, or against public policy for any reason, a

narrower line of business, a lesser period, or a

smaller geographic area that is determined to be

reasonable, non-arbitrary, and not against public

policy for any reason, may be enforced by VDORM

against the EMPLOYEE.

RESTRICTIVE COVENANT-REMEDIES. VDORM

and the EMPLOYEE agree that, in the event of a

breach by the EMPLOYEE of the Restrictive Cove-

nant set forth in Paragraph 24, above, such a breach

would irreparably injure VDORM and would leave

VDORM with no adequate remedy at law, and

VDORM and the EMPLOYEE further agree that, if

legal proceedings (including arbitration proceed-

ings) should have to be brought by VDORM against

the EMPLOYEE to enforce the Restrictive Covenant,

VDORM shall be entitled to all available civil

remedies, including without limitation:

App. 42

A. Preliminary and permanent injunctive relief

restraining the EMPLOYEE from violating,

directly or indirectly, either as an individual on

his or her own account or as a partner, joint

venturer, employee, agent, salesman, contractor,

officer, director, or stockholder or otherwise, the

restrictions of this Agreement;

B. Attorneys’ fees in the trial and appellate courts

and in all arbitration proceedings; and,

C. Costs and expenses of investigation, litigation,

and arbitration, including expert witness fees,

deposition costs (appearance fees and transcript

charges), injunction bond premiums, travel and

lodging expenses, arbitration fees and charges,

and all other reasonable costs and expenses.

Nothing in this Employment Agreement shall be

construed as prohibiting VDORM from pursuing

any other legal or equitable remedies available to it

for breach or threatened breach of the Restrictive

Covenant.

If the EMPLOYEE violates the Restrictive Covenant,

directly or indirectly, either as an individual on her

own account or as a partner, joint venturer,

employee, agent, salesman, contractor, officer, direc-

tor, or stockholder or otherwise, any and all sales of

services by the EMPLOYEE (or the partnership, joint

venture, corporation, or other entity with which he

or she is associated) in competition with the services

of VDORM shall be conclusively presumed to have

been made by VDORM but for the violation of the

Restrictive Covenant.

Should legal proceedings (including arbitration pro-

ceedings) have to be brought by VDORM against the

EMPLOYEE to enforce the Restrictive Covenant, the

26.

App. 43

period of restriction shall be deemed to begin run-

ning on the date of entry of an order granting

VDORM preliminary injunctive relief and shall con-

tinue uninterrupted for the next succeeding two (2)

years; the EMPLOYEE acknowledges that such pur-

poses and effect would be frustrated by measuring

the period of restriction from the date of termination

of employment where the EMPLOYEE failed to

honor the Restrictive Covenant until directed to do

so by court order. VDORM and the EMPLOYEE

agree that, if VDORM is granted preliminary injunc-

tive relief under this Agreement, an injunction bond

of no more than $5,000 shall be sufficient to indem-

nify the EMPLOYEE for any costs or damages that

she might incur if the Court ultimately determines

that the EMPLOYEE was wrongfully enjoined.

NON-DISCLOSURE - TRADE SECRETS: The

EMPLOYEE during the term of this Agreement will

have access to and become familiar with various

trade secrets, consisting of formulas, patterns,

devices, techniques, equipment, secret inventions,

processes, and compilations of information, records,

and specifications, that are owned by VDORM and

that are regularly used in the operation of VDORM’s

business. The EMPLOYEE shall not disclose any of

these trade secrets, directly or indirectly, or use them

in any way, either during the term of this Agreement

or at any later time. All files, records, documents,

drawings, specifications, equipment, and similar

items relating to the business of VDORM, whether

prepared by the EMPLOYEE or otherwise coming

into the EMPLOYEE’s possession, shall remain the

exclusive property of the VDORM and shall not be

removed from the premises under any circum-

stances whatsoever without the prior written con-

sent of VDORM.

STM en EE

App. 44

27. PRIVACY: PURSUANT TO FLORIDA STATUTES

810.14, et seq, EMPLOYEE HEREBY ACKNOWL-

EDGES THAT SHE HAS NO REASONABLE

EXPECTATION OF PRIVACY WHILE ON THE

PREMISES AND EXPLICITLY AGREES AND

CONSENTS TO HAVING HER IMAGES AND

LIKENESS COMMERCIALLY BROADCAST BY

VDORM, LIVE OVER THE INTERNET 24 HOURS

A DAY, 7 DAYS A WEEK.

28. NON-TENANCY, EMPLOYEE EXPRESSLY -

AGREES AND ACKNOWLEDGES THAT: (i) SHE

IS NOT A TENANT OF VDORM; AND (ii) SHE

WAIVES ANY RIGHTS THAT SHE MAY HAVE AS

A RESIDENTIAL TENANT UNDER FLORIDA

STATUTE § 83, ET SEQ.

IN WITNESS WHEREOF, the parties have executed

this Agreement on the day and year written above.

/s/ Heather Martin

Voyeur Dorm, L.C. Witness

By: /s/ Bruce Hammil

/s/ Autumn Marenger /s/ B-H-

EMPLOYEE Witness

EXHIBIT B

FMPLOYEE: Autumn Marenger

WEEKLY SALARY OF: $425,

BEGINNING 6-1-99.

F

App. 45

AUTHORIZED DEDUCTIONS AND SET OFFS

I, the undersigned Employee do hereby expressly

Unauthorized absence

from house.

Unauthorized absence

from chat.

Failure to participate

in scheduled activities.

Unauthorized contact

with a customer or

any person met or

contacted via Voyeur

Dorm on-line chat.

Covering or moving

of cameras.

/s/ Autumn Marenger

Employee

authorize Voyeur Dorm, L.C., to take the following

actions and to deduct from my weekly salary the follow-

ing sums:

$100.00 each occurrence.

$ 50.00 each occurrence

$ 50.00 each occurrence

Immediate termination and

forfeiture of any accrued

bonus.

Immediate termination and

forfeiture of any accrued

bonus.

6-1-99

Date