Petition for Writ of Certiorari — Seminole Entertainment, Inc. v. City of Casselberry

No.______0 2145 4 MAR 31 2068

In The

Supreme Court of the Anited States

; |

SEMINOLE ENTERTAINMENT, INC.

d/b/a RACHEL'S,

Petitioner,

VS.

CITY OF CASSELBERRY,

Respondent.

y

al

On Petition For Writ Of Certiorari

To The Florida Fifth District

Court Of Appeal

&

v

PETITION FOR A WRIT OF CERTIORARI

2

Vv

R. STEVEN RuTA, ESQ. STEVEN G. MASON, Esq.

VICTOR CHAPMAN, Esq. Counsel of Record

BARRETT, CHAPMAN & RUTA STEVEN G. MASON, P.A.

Post Office Box 3826 1643 Hillcrest Street

Orlando, FL 32802-3826 Orlando, FL 32803

(407) 239-6227 (407) 895-6767

(407) 648-1190 Facsimile (407) 895-2090 Facsimile

Attorneys for Petitioner

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the procedural safeguard of “prompt

judicial review” for prior restraints of First Amendment

freedom of speech mandated by this Court in Freedman v.

Maryland, 380 U.S. 51 (1965) and FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215 (1990) requires the City of Cassel-

berrys Adult Entertainment Code provide for a prompt

judicial determination of license revocation challenges, as

ruled by the Fourth, Sixth, Ninth and Tenth Circuit

Courts of Appeal, or only prompt judicial access, as ruled

by the court below and the First, Fifth and Eleventh

Circuit Courts of Appeal?

2. Whether Rachel’s due process rights were violated

when the Casselberry City Commission refused to disqual- |

ify itself from presiding over Rachel’s revocation hearing

where the record was replete with evidence establishing

bias against the nightclub?

cari

ii

PARTIES TO THE PROCEEDING

- The parties listed in the caption are the only parties to

the proceeding, specifically the City of Casselberry, Florida

and Seminole Entertainment, Inc. Pursuant to Sup.Ct.R.

29.6, Seminole Entertainment, Inc. has no parent corpora-

tion. No publicly held company owns any of the stock of

Seminole Entertainment, Inc.

ils sh ATE RAAT ane

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. .......:::::secereceeeersssssrereees® i

PARTIES TO THE PROCEEDING .........:::eceeeeeeeeeeees il

TABLE OF CONTENTS .....-.:-:ssessseererretsestteteese ee iil

TABLE OF AUTHORITIES ..........::seceeceressssreeeesssrsees iv

OPINION BELOW. .......::::sscesesseeesersete rete 1

STATEMENT OF JU RISDICTION ..........:ceeeeeeeeeeeeees 1

CONSTITUTIONAL PROVISIONS AND ORDINANCES

STATEMENT OF THE CASE.....csesserserssrsnssessessoeres 3

A. FACTUAL AND PROCEDURAL BACK-

PETIT cs. scecsanosnesviernnnnenenenvennecsnaresnsereseneess 3

B. PRESENTATION OF FEDERAL ISSUES ..... 8

REASONS FOR GRANTING THE WRIT .........-++++++ 10

I. Rachel’s petition should be granted to resolve

the conflict among both the federal circuit

courts of appeal and the state courts as to

whether a prompt judicial determination is

required to satisfy the “prompt judicial review”

safeguard mandated by this court in Freedman

v. Maryland, 380 U.S. 51 (1965) and FW/PBS,

Inc. v. City of Dallas, 493 U.S. 215 (1990) .........-. 10

Il. Rachel's petition should be granted because the

lower court’s decision conflicts with several

opinions from this court finding due process

violations where the record was replete with

evidence establishing bias against Rachel's, but

the City Commission refused to disqualify itself

from presiding over the revocation hearing......... 14

CONCLUSION ........20:.0sesrensesesssovssnesnernenorvensenonsrensers 20

—_—_— . —

iV

TABLE OF AUTHORITIES

Page

CASES:

4805 Convoy, Inc. v. City of San Diego, 183 F.3d

Se ee yeh siewiiitese acacninrntccaneneceiaieiainlienininds 11

11126 Baltimore v. Prince George’s County, MD, 58

ee ae arise ccndcasvenenianintansancostencisionberiane 11

Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d

Ie ee ee i ieeicshttaceeircenhcciatistcanmoceanicsionnncinn 11

Bell v. Bureon, 402 US. GBB (IGT) ...ccceccvveccvscosessseceseseneess 15

Boss Capital, Inc. v. City of Casselberry, 187 F.3d

BE Ce Ge Bi rttinctiincenntetiiemicnimnnnns 12

City News & Novelty, Inc. v. City of Waukesha, 531

re ee IE viinsicnns ancnidcinaenertenceenmadevsiebciiedaenennsicavins 12

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) ...............44. 3

Doran v. Salem Inn, Inc., 422 U.S. 922 (1974)................088 3

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

ee NE, SIE sitio ceienisnneicaantnestnanacniautiidinomnes 11

FW/PBS, Inc. v. Dallas, 493 U.S. 215

Re aicisinssicnndcoudocieuidanielbsaienssceaecanoiaarsaaslanteriiie 8, 10, 12, 13, 14

Freedman v. Maryland, 380 U.S. 51 (1965) ...... 8, 10, 13, 14

Goldberg v. Kelly, 397 U.S. 254 (1970)................ccceseeeeeeees 15

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir. 1993)......... 12

Harkins v. Greenville County, 553 S.E. 2d 886 (S.C.

ia piitscceiencealeibaierabcaescclipuidiancnautibiasaiiaaeindleigaalpnisabitiakanets 11

Holden Avenue Inter-Neighborhood Council, Inc. v.

County of Orange, 719 So.2d 1002 (Fla. 5th DCA

+t ko a eal

Vv

TABLE OF AUTHORITIES - Continued

Page

Hortonville Joint School District No. 1 v. Horton-

ville Educ. Ass’n, 426 U.S. 482 SFT ns ecsanoviease 17, 18, 19

Jews for Jesus, Inc. v. MBTA, 984 F2d 1319 (1st

Te: SUNN Sie sstonineronnmiaciasiinihedgsidliaec nag eae ae cat 12

JIR, Inc. v. City of Seattle, 891 P2d 720 (Wash.

SE vivni vac enaniniieeon aceon elenaiaetsidblebbinds psisoaubieeitcc is es 11

McDonald v. City of Chicago, 243 F.3d 1021 (7th

a a ere ES 12

Nightclub Management, Ltd. v. City of Canon Falls,

95 F.Supp.2d 1027 (D. Minn. 2000) ......eeccseccsecces--..... 11

Nightclubs, Inc. v. City of Paducah, 202 F3d 884

li Ein a TL 11

Seminole Entertainment, Inc. v. Casselberry, 8

Fla.L.Weekly Supp. 613a (Fla. 18th Jud. Cir.

SIPS \a:ias-vivrcounthaviensinecentstiiinebushesielaaiaaieden a ise aoe 1,18

Seminole Entertainment, Inc. v. Casselberry, 811

So.2d 693 (Fla. 5th DCA PD ciistietacieeoe 1, 7, 8, 19

Seminole Entertainment, Inc. v. Casselberry, 813

So.2d 186 (Fla. 5th DCA Be atin 1,9

Seminole Entertainment, Inc. v. Casselberry, 835

So.2d 269 (Fla. 2002).......ccccsssssesssecssesssssseeceesessecscccc., 1,9

Spokane Arcade, Inc. v. City of Spokane, 1998

Wash. App. Lexis 1237 (Ct. App. Wash. 1998)............... 11

Thomas v. Chicago Park District, 5384 U.S. 316

Rip tinicvesi nonstunnagonvubcpivaninmige aici ates a i 12

TEs Video, Inc. v. Denton County, Tex., 24 F.3d 705

Se SIs ssichitneniccislaniihnaias oped are ers 12

vi

TABLE OF AUTHORITIES — Continued

Page

Withrow v. Larkin, 421 U.S. 35 (1975) ............ccccssssceseeeees 15

Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d

SE CE Gh Be irinissisiicerecsiccsivicterntinilncentiniion 11

STATUTES:

By Ur en RE TEIN tictiteseetiinimicannciemrenen 2

UNITED STATES CONSTITUTION:

First Amendment, United States Constitution....2, 18, 14, 20

Fifth Amendment, United States Constitution............... 2,3

Fourteenth Amendment, United States Constitu-

I cvincv'assinssnvesinrkicsiacinssencttesaiasssevaniannemeeaaaban 2

OTHER AUTHORITIES:

Article V, Section 2, Florida Constitution ........................ 14

Section 14-92, Casselberry Adult Code ..................cccceeeeeeee 4

Section 14-93, Casselberry Adult Code ....................000 4,13

1

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Seminole Entertainment, Inc., respect-

fully requests this Court to issue a writ of certiorari to

review the judgment of the Florida Fifth District Court of

Appeal in this case. !

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WwW

OPINIONS BELOW

The state circuit (trial) court denied Rachel’s petition

for writ of certiorari on July 17, 2001. This opinion is

reported as Seminole Entertainment, Inc. v. Casselberry, 8

Fla.L.Weekly Supp. 613a (Fla. 18th Jud. Cir. 2001) (App.

_C). Rachel’s sought review of the trial court’s decision by

filing a petition for writ of certiorari in the District Court

of Appeal of Florida, Fifth District. The opinion of the Fifth

District Court of Appeal is reported as Seminole Enter-

tainment, Inc. v. Casselberry, 813 So.2d 186 (Fla. 5th DCA

2002) (App. A). On December 30, 2002, the Florida Su-

preme Court declined review of the Fifth District Court of

Appeal. (App. D). The declination is reported as Seminole

Entertainment, Inc. v. Casselberry, 835 So.2d 269 (Fla.

2002). A related case is reported as Seminole Entertain-

ment, Inc. v. Casselberry, 811 So.2d 693 (Fla. 5th DCA

2001) (App. B).

ry

v

STATEMENT OF JURISDICTION

The opinion of the Fifth District Court of Appeal was

entered on March 22, 2002 (App. A). On December 30,

2002, the Florida Supreme Court declined review (App. D).

2

The jurisdiction of this Court is invoked under 28 U.S.C.

Section 1257.

4

v

CONSTITUTIONAL PROVISIONS

AND ORDINANCES INVOLVED

Amendment I of the United States Constitution:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Government

for a redress of grievances.

Amendment V of the United States Constitution:

No person shall be held to answer for capital, or

otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any crimi-

nal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be

taken for public use, without just compensation.

Section 1, Amendment XIV of the United States Constitu-

tion:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

AON, ORO NRE ii el

3.

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty or property, without due process of

law, nor deny to any person within its jurisdic-

tion the equal protection of the lars.

City of Casselberry Adult Entertainment Code:

The relevant portions of the City of Casselberry Adult

Entertainment Code are set forth in the Appendix (App. E-

F).

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v

STATEMENT OF THE CASE

A. FACTUAL AND PROCEDURAL BACK-

GROUND

This case presents two constitutionally significant

issues. First, courts across this country (both federal and

state) are divided as to whether the “prompt judicial

review” provisions of adult entertainment/licensing codes

must provide for the prompt judicial determination or only

prompt judicial access. Here, Rachel’s was entitled to

prompt judicial review or, at a minimum, an automatic

stay from Casselberry’s order revoking Rachel’s license.’

Second, a legislative body (while acting in a quasi-judicial

capacity) should be required to disqualify itself when

strong evidence exists establishing bias against a party —

in this case, the adult entertainment nightclub.

' Businesses which offer erotic dancing are afforded protection

under the First Amendment. City of Erie v. Pap’s A.M., 529 U.S. 277

(2000); Doran v. Salem Inn, Inc., 422 U.S. 922 (1974).

———__

4

Rachel’s has been a licensed adult entertainment

establishment in the City of Casselberry, Florida for over

ten years offering erotic dancing for the enjoyment of its

patrons. In June of 1999, Casselberry passed an ordinance

regulating adult entertainment in Casselberry and provid-

ing for suspension and/or revocation of adult entertain-

ment licenses (hereinafter referred to as “the Code” or the

“Casselberry Code”). Up until January 31, 2001, Rachel’s

held and maintained an adult entertainment license under

the Casselberry Code. Its license was never previously

suspended.

An undercover police investigation occurred at Ra-

chel’s in the summer of 2000. A number of people were

arrested and prosecuted. On November 10, 2000, Cassel-

berry issued Rachel’s a Notice of Revocation of Adult

Entertainment License as the result of alleged criminal

conduct discovered pursuant to the undercover investiga-

tion. The Notice was amended by Casselberry on Novem-

ber 14, 2000. Rachel’s filed a challenge to the revocation

and requested a hearing on or about November 21, 2000.

Casselberry’s code is unique in that the city manager (who

works for the city commission) acts as the prosecutor, and

the city commission acts as the jury. The mayor acted as

both the judge and a member of the jury.’

On December 4, 2000, Rachel’s moved to disqualify

the City Commission and Mayor. In support of its motion,

. Rachel’s submitted substantial evidence of the bias and

prejudice of the mayor and other Commissioners, especially

* The Casselberry Code’s revocation and suspension provisions are

contained in §§14-92 and 14-93, set forth in App. E and F respectfully.

5

Commissioner Henson.* On December 14, 2000, Cassel-

berry denied Rachel’s Motion. Hearings on the revocation

were held by the City Commission on December 14, 27,

and 28, 2000. During the hearings, the Mayor acted as the

judge and participated in the revocation decision. The City

Manager prosecuted the revocation case. On January 16,

2001, the City Commission began its deliberations. On

January 31, 2001, the City Commission entered its find-

ings of fact and conclusions of law finding purportedly by

clear and convincing evidence that the ordinance had been

violated; that the owners of Rachel’s were negligent and

failed to adequately supervise the business; and inferred

that the owners fostered, condoned or negligently over-

looked the violations. The City Commission further found

that the “operators” and “workers”, as defined in the

Casselberry Code, knowingly allowed the violations and

therefore the licensee violated the Casselberry Code.

Rachel’s license was revoked for two years, beginning

February 1, 2001.

In response, Rachel’s filed two legal actions. Initially,

Rachel’s filed an original action in Florida state circuit

court against Casselberry seeking a declaratory judgment

and injunction. Rachel’s then filed the instant action with

* Commissioner Henson eventually disqualified himself in January

of 2001, but not until after he actively participated in the revocation

proceeding, voted to deny the motion to disqualify, and extensively

questioned witnesses in support of the city manager’s case. The

remaining commission members, including the mayor, voted to revoke

Rachel’s license.

en ie

the state circuit court seeking certiorari review of Cassel-

berry’s revocation of Rachel’s license.‘

In the declaratory judgment action Rachel’s moved for

a temporary injunction to stay the revocation of its license.

The motion was denied and an interlocutory appeal was

filed with the Florida Fifth District Court of Appeal. In a

unanimous decision, the court found that Rachel’s due

process rights had been violated because the Casselberry

proceedings were so infected with bias. (This opinion is

hereinafter referred to as “Rachel’s I”). In reaching its

decision, the court noted:

The evidence supporting the motion to disqualify

showed that the Casselberry mayor (Pronovost),

who subsequently presided over the proceedings

and ruled upon legal objections to proffered evi-

dence and testimony, had run for office on a plat-

form directed against alleged “illegal activities”

at “strip bars” in Casselberry, such as Rachel’s.

The mayor had publicly charged that Rachel’s

was a hot spot of drug proliferation, under-aged

drinking, and prostitution. Prior to the hearing,

the Casselberry city manager, acting as the

prosecutor of the case against Rachel’s, had con-

sulted with various commission members about

the illegal activities at Rachel’s. The motion to

disqualify also asserted that one commissioner

(Henson) actually participated in an undercover

* Two actions were filed by Rachel’s due to the procedural dichot-

omy established by Florida Courts. Under Florida law, review of a city

or administrative quasi-judicial action is generally made through

certiorari review in a Florida circuit (trial) court. In contrast, facial

challenges to an ordinance may be made in an original declaratory

judgment action.

7

investigation by the Casselberry police against

Rachel’s. (note omitted).°

Seminole Entertainment, Inc. v. Casselberry, 811 So.2d

693, 695 (Fla. 5th DCA 2001) (App. B). The court further

observed that:

Virtually all objections raised by Rachel’s were

overruled by Pronovost; those by the city man-

ager were inevitably sustained. Considerable tes-

timony was presented about illegal activity at a

different nightclub located in Orange County.

Significantly, the principal witness for the City,

one Laney, refused to answer an inquiry by coun-

sel for Rachel’s in regard to any information

showing that the owners of Rachel’s had knowl-

edge of any illegal activities on the premises. The

basis for this refusal was that any such informa-

tion was part of an ongoing investigation. The

mayor then improperly sustained the City’s ob-

jection to further cross examination by Rachel’s

in this regard.

Seminole Entertainment, Inc. v. Casselberry, 811 So.2d

693, 695 (Fla. 5th DCA 2001) (App. B). Based upon the

record, the Court concluded:

In this case, Rachel’s has established more than

mere political bias or an unfriendly political at-

mosphere. In effect, it was denied the right to chal-

lenge, through cross examination, the testimony of

the principal witness against it. The evidentiary

rulings by May Pronovost were not merely errone-

ous but rather reflect a bias so pervasive as to

* Extensive evidence was contained in the record supporting this

quote from the Rachel’s I court.

8

have rendered the proceedings violative of the

basic fairness component of due process.

Id. at 696-97. The court accordingly reversed the denial of

the motion for temporary injunction. (App. B).

While the appeal in Rachel’s I was pending but before

the opinion was entered, the trial court in this action

denied Rachel's petition for writ of certiorari finding that

no due process violations occurred and rejecting Rachel’s

argument under Freedman v. Maryland, 380 U.S. 51

(1965). (App. C). Rachel’s sought review of the denial of the

writ by filing a petition for certiorari with the Florida

Fifth District Court of Appeal. (Hereinafter referred to as

“Rachel’s II”). A different panel of the Fifth District Court

of Appeal denied relief. (App. A). The majority of the

Rachel’s II panel found, among other things, that its scope

of review was limited in a “second-tier” certiorari review

and that effectively, the trial court review was the sole

relief available to Rachel’s for its due process arguments

related to the Casselberry proceedings. In denying Ra-

chel’s relief, the Rachel’s II panel ignored the opinion of

the Rachel’s I panel claiming the Rachel’s I opinion should

not have been rendered on procedural grounds. Judge

Cobb, a member of both panels, dissented in Rachel’s II

(App. A). The Supreme Court of Florida declined review of

the case. (App. D).

B. PRESENTATION OF FEDERAL ISSUES

The issue of whether the procedural safeguard of

“prompt judicial review” for prior restraints of First

Amendment freedom of speech mandated in Freedman

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

requires a prompt judicial determination was originally

——————————eE

9

presented to the Florida trial court in Rachel’s Petition for

Writ of Certiorari. (App. G, 99-111). The trial court ren-

dered its opinion in this issue in its July 17, 2001 Order.

(App. C). Rachel’s presented this issue to the Florida Fifth

District Court of Appeal who addressed the issue in its

opinion at Seminole Entertainment, Inc. v. City of Cassel-

berry, 813 So.2d 186, 189 (Fla. 5th DCA 2002). (App. A).

The issue of whether Rachel’s due process rights were

violated when the Casselberry City Commission refused to

disqualify itself from presiding over Rachel’s revocation

hearing where the record was replete with evidence

establishing bias against Rachel’s was originally presented

to the Florida trial court in Rachel’s Petition for Writ of

Certiorari. (App. G, 82 through 85). The trial court ren-

dered its opinion on this issue in its July 17, 2001 Order.

(App. C). Rachel’s presented this issue to the Florida Fifth

District Court of Appeal. That Court declined to address

the issue finding that review of such issue lay only with

the trial court given the procedural posture of the case.

Seminole Entertainment, Inc. v. City of Casselberry, 813

So.2d 186, 188 (Fla. 5th DCA 2002). (App. A).

The Florida Supreme Court denied review of the case.

Seminole Entertainment, Inc. v. City of Casselberry, 835

So.2d 269 (Fla. 2002). (App. D).

¢

10

REASONS FOR GRANTING THE WRIT

I. Rachel’s petition should be granted to resolve

the conflict among both the federal circuit

courts of appeal and the state courts as to

whether a prompt judicial determination is

required to satisfy the “prompt judicial re-

view” safeguard mandated by this court in

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

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

(1990). |

In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734,

13 L.Ed.2d 649 (1965), this Court established procedural

safeguards required for statutory schemes necessary to

prevent unconstitutional prior restraint of expression.

Among these safeguards is “a prompt final judicial deci-

sion, to minimize the deterrent effect of an interim and

possibly erroneous denial of a license.” Freedman, 380 U.S.

at 59. This Court reaffirmed the requirement of “prompt

judicial review” in FW/PBS, Inc. v. Dallas, 493 U.S. 215,

110 S.Ct. 596, 107 L.Ed.2d 603 (1990). In FW/PBS, Inc.,

six justices of the Court agreed that the “prompt judicial

review” safeguard was necessary to protect against uncon-

stitutional prior restraints. FW/PBS, Inc., 493 U.S. at 230

(Opinion of Justice O’Connor, joined by Justices Stevens

and Kennedy), and at 239 (Concurring opinion of Justice

Brennan, joined by Justices Marshall and Blackmun).

Since this Court’s decision in FW/PBS, Inc., both the

federal circuit courts of appeal and several state courts are

divided over the meaning of the “prompt judicial review”

requirement. The Fourth, Sixth, Ninth and Tenth Circuits

have rejected any modification by FW/PBS of the tradi-

tional meaning of prompt judicial review and have main-

tained that a prompt judicial decision is necessary to

Pe Ge Le PE Te ee ae en ee

Ieicieneeeennenieiiiiasiiiissiaa iia sail

11

satisfy the requirement. See East Brooks Books, Inc. v.

City of Memphis, 48 F.3d 220 (6th Cir. 1995); Nightclubs,

Inc. v. City of Paducah, 202 F.3d 884 (6th Cir. 2000); 11126

Baltimore v. Prince George’s County, MD, 58 F.3d 988 (4th

Cir. 1995); Baby Tam & Co., Inc. v. City of Las Vegas, 154

F.3d 1097 (9th Cir. 1998); Z.J. Gifts D-4, L.L.C. v. City of

Littleton, 311 F.3d 1220 (10th Cir. 2002). Additionally, the

South Carolina Supreme Court also held that prompt

judicial review means a prompt decision — not access.

Harkins v. Greenville County, 553 S.E. 2d 886 (S.C. 2000).

Further, several courts, including the Ninth Circuit,

have held that a business which has had its license sus-

pended or revoked is entitled to an automatic stay pending

judicial review. 4805 Convoy, Inc. v. City of San Diego, 183

F.3d 1108 (9th Cir. 1999) (city’s scheme for suspending and

revoking license unconstitutional in that it did not provide

for an automatic stay pending judicial review); Nightclub

Management, Ltd. v. City of Canon Falls, 95 FSupp.2d

1027 (D. Minn. 2000) (although automatic stay went into

effect pending city review of suspension/revocation, same

was dissolved once city council rendered decision, thus law

rendered unconstitutional); Spokane Arcade, Inc. v. City of

Spokane, 1998 Wash. App. Lexis 1237 (Ct. App. Wash.

1998) (until city enacts a mandatory stay, ordinance is

unconstitutional in its entirety); JJR, Inc. v. City of

Seattle, 891 P.2d 720, 724 (Wash. 1995). This abatement or

stay issue is simply an extension of the principle that a

protected right cannot be eviscerated absent prompt

judicial review on merits. In contrast, the Court of Appeals

of Florida in this case and the First, Fifth and Eleventh

12

Circuits interpreted FW/PBS, Inc. v. Dallas, 493 U.S. 215

(1990) to require that a statute need only provide access

to judicial review to pass constitutional muster.* See Jews

for Jesus, Inc. v. MBTA, 984 F.2d 1319 (1st Cir. 1993); TK’s

Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir.

1994); and Boss Capital, Inc. v. City of Casselberry, 187

F.3d 1251 (11th Cir. 1999). Additionally, the Court of

Appeals of Wisconsin held that prompt access to judicial

review is sufficient. City News & Novelty, Inc. v. City of

Waukesha, 604 N.W.2d 870 (Wis. Ct. App. 1999).

This conflict among the state and federal courts across

the country over how to define a core protection of First

Amendment rights requires resolution by this Court. The

Court recognized the importance of the need to resolve this

issue when it granted certiorari review on the question

twice: once in the Court’s 1999-2000 term and once in the

2000-2001 term. See City News & Novelty, Inc. v. City of

Waukesha, 531 U.S. 278 (2001); Thomas v. Chicago Park

District, 534 U.S. 316 (2002). Unfortunately, in each case

the Court did not reach the merits of the issue because the

* A Seventh Circuit case, Graff v. City of Chicago, 9 F.3d 1309 (7th

Cir. 1993), has also been cited to support the argument that mere

“access” satisfies the prompt judicial review requirement, but it is not a

proper citation. Graff was a plurality, en banc decision rendered by

twelve sharply divided judges. Judge Manion and four others concluded

that common law certiorari satisfied the prompt judicial review

requirement, although “access” vis a vis “decision” was never discussed.

The principal opinion was not a majority opinion of the court. The seven

judges who either concurred or dissented all indicated their disagree-

ment with Judge Manion’s conclusion that availability of judicial review

satisfied the prompt judicial review requirement. Accordingly, the Graff

decision may not be properly cited as holding that the prompt judicial

review requirement is satisfied by judicial availability. But see McDon-

ald v. City of Chicago, 243 F.3d 1021 (7th Cir. 2001).

Dat PRePes ox

|

E

'

13

Court found that the first case was not ripe for review and

the second was decided on another issue.

In the case at bar, the issue is ripe for review and was

directly addressed by the lower courts. The issue was

raised by Rachel’s in both the lower trial court and the

Florida appellate court. The issue was directly addressed

and decided by both courts. The City of Casselberry’s Adult

Entertainment Code at issue falls directly into the prior

restraint schemes requiring the procedural safeguards

mandated by Freedman and FW/PBS, Inc.’

The City of Casselberry Code contains a review

provision that provides:

Judicial Review. Any person who participated in

a suspension or revocation hearing before the

city commission and who is aggrieved by the de-

cision of the city commission may immediately

challenge the decision in any court of competent

jurisdiction pursuant to the rules of procedure of

that court. The record of the hearing shall consist

of the complete records of the proceedings before

the city commission. The city commission’s deci-

sion shall be promptly reviewed by the court.

Section 14-93(d), Casselberry Code. (App. F). However,

there is no requirement under Florida law, the Florida

Rules of Appellate Procedure or the Casselberry City Code

guaranteeing that such a review be promptly decided or

" As previously stated, Rachel’s is an adult business which provides

erotic dancing for the enjoyment of its patrons — entertainment which

this Court has repeatedly held is entitled to a certain level of First

Amendment protection.

14

providing a stay pending final judicial determination of

Casselberry’s revocation order.

Under the Florida Constitution only the Supreme

Court of Florida can enact rules of procedure. Holden

Avenue Inter-Neighborhood Council, Inc. v. County of

Orange, 719 So.2d 1002, 1003 (Fla. 5th DCA 1998); Article

V, Section 2.(a), Florida Constitution. A Florida municipal-

ity does not have the power to provide or guarantee

prompt judicial decision — this is a Florida legislative or

judicial function. Casselberry’s code is in effect a powerless

provision that has no legal effect.

This case presents a salient example°’of why an auto-

matic stay and prompt judicial determination on the

merits must be an absolute requirement under the First

Amendment. This Court should grant certiorari review of

the Florida court’s opinion below to resolve the conflict

among both the federal and state courts as to whether a

prompt judicial determination is required to satisfy the

“prompt judicial review” safeguard mandated by this

Court in Freedman v. Maryland, 380 U.S. 51 (1965) and

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

II. Rachel’s petition should be granted because

the lower court’s decision conflicts with sev-

eral opinions from this court finding due

process violations where the record was re-

plete with evidence establishing bias against

Rachel’s, but the City Commission refused to

disqualify itself from presiding over the revo-

cation hearing.

A basic and fundamental component of due process is

a party’s entitlement to a neutral and unbiased fact finder.

,

en ee ee

15

This Court has repeated this refrain many times. This

entitlement equally applies to judges and bodies which

serve a quasi-judicial function. As explained by this Court

in Withrow v. Larkin, 421 U.S. 35 (1975):

Concedingly, a “fair trial in a fair tribunal is a

basic requirement of due process.” In re: Murchi-

son, 349 U.S. 133, 136, 99 L.Ed. 942, 75 S.Ct. 623

(1955). This applies to administrative agencies

which adjudicate as well as to courts. Gibson v.

Berryhill, 411 U.S. 564, 579, 36 L.Ed. 2d 488, 93

S.Ct. 1689 (1973). Not only is a biased decision

maker constitutionally unacceptable but “our

system of law has always endeavored to prevent

even the probability of unfairness.” In re: Mur-

chison, supra at 136, 99 L.Ed. 942, 75 S.Ct. 623;

cf. Tumey v. Ohio, 273 U.S. 510, 532, 71 L.Ed.

749, 47 S.Ct. 437, 50 ALR 1243 (1927). In pursuit

of this end, various situations have been identi-

fied in which experience teaches that the prob-

ability of actual bias on the part of a judge or

decision maker is too high to be constitutionally

tolerable. Among these cases are those in which

the adjudicator has a pecuniary interest in the

outcome and in which he has been the target of

personal abuse or criticism from the party before

him.

Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). Other

opinions from this Court reinforce this proposition. See

Ward v. Monroeville, 409 U.S. 57 (1972); Goldberg v. Kelly,

397 U.S. 254, 271 (1970) (impartial decision maker essen-

tial to due process); Bell v. Burson, 402 U.S. 535 (1971).

In this case, the bias displayed by the Casselberry

City Commission was so pervasive that the refusal to

disqualify itself constituted a due process violation. The

16

Casselberry mayor was embroiled in a contested election

prior to the initiation of revocation proceedings against

Rachel’s. During the election, the mayor ran on a platform

involving “strict enforcement of the illegal activities going

on inside strip bars.” He also referred to these businesses

as “(t]he strip bars with all their money and corrupting

influence, continued to negatively impact our community.

We should focus on improving our standards. ... ” In fact

the antagonism between the mayor, city officials and the

owners of Rachel’s was deep and long-lasting. Prior Cas-

selberry City Commission hearings revealed the mayor’s .

hostility toward the owners of Rachel’s and his belief that

illegal activity was occurring at the club. During an April

7, 1997 City Commission hearing, the mayor stated:

In that investigation® that started out at Puzzles

and spilled over into Rachel’s’, there are ar-

rests made and there are signed affidavits that

talk about a number of different things. The pro-

liferation of drugs. High level staff at the estab-

lishments getting involved. Talking about under-

aged, forced under-aged drinking, talking about

forced prostitution, and the question I always

have to keep coming back is how is this good pub-

lic policy te establish a precedent and a monopoly

for two former all-night clubs?

* * *

* This “investigation” was a subject of discussion during the

revocation proceedings.

* All emphasis in this petition has been added unless otherwise

noted.

NEA AMBRE E TAL IO Cn OR ct

17

I’ve said it before, the strategy has been to con-

fuse, to intimidate, to divide and to conquer. I’m

not confused. I will not be intimidated. I do be-

lieve that the city of Casselberry will come to-

gether and not be divided, and the city of

Casselberry will not be conquered.

The mayor also approached a Florida legislator hoping to

close down the adult clubs in Casselberry. The mayor had

also previously read affidavits regarding allegations of

under-aged drinking and illegal activity at Rachel’s. This

is the same mayor that presided over Rachel’s hearing,

ruled on all of the evidentiary issues and participated in

the ultimate fact finding decision.

Additionally, Rachel’s alleged that the city manager

had discussions with the city commission regarding the

criminal investigation of Rachel’s prior to the evidentiary

hearing. The animus with this business was so pervasive

and scarred that one of the commissioners was previously

employed as an undercover operative and wore a “wire” in

an attempt to have one of Rachel’s owners arrested.

Despite the record evidence regarding the City

Commission’s bias, the trial court below relied on this

Court’s opinion in Hortonville Joint School District No. 1 v.

Hortonville Educ. Ass’n, 426 U.S. 482 (1976) for the

proposition that a legislative body, even while acting in a

quasi-judicial capacity, is not subject to disqualification

based upon claims of political bias. The trial court

reasoned:

This Court is also guided by the United States

Supreme Court’s opinion in Hortonville Joint

School District #1 v. Hortonville Education Asso-

ciation, et al., 426 U.S. 482 (1976). In Horton-

ville, the court ruled that political opposition or

18

political bias of school board members against

the teachers’ union was not sufficient to disqual-

ify elected officials. Jd. As such, the court would

not interfere with the exercise of the local gov-

ernment’s discretion notwithstanding evidence

that the elected officials had, in the context of po-

litical speech, made statements from which one

could infer an anti-union bias. Jd. The fact that

the elected officials may have expressed political

and policy views as a legislator or politician on

an issue that may potentially come before them

in a quasi-judicial proceeding does not prevent

them from deciding a particular case fairly. Jd. In

the instant case, none of the alleged prejudicial

statements made by the City Commissioners re-

lated specifically to the license revocation pro-

ceedings. Therefore, there was no basis for the

City Commissioners to disqualify themselves.

Seminole Entertainment, Inc. v. Casselberry, 8

Fla.L.Weekly Supp. 613a‘(Fla. 18th Jud. Cir. 2001) (App.

C).

However, the trial court’s reasoning misconstrues the

Hortonville case. Hortonville actually reinforced Ward uv.

Monroeville, 409 U.S. 57 (1972) that disqualification is

appropriate if supported by the record. As this Court in

Hortonville explained:

Respondents have failed to demonstrate that the

decision to terminate their employment was in-

fected by the sort of bias that we have held to

disqualify other decision makers as a matter of

federal due process.

Hortonville, 426 U.S. at 496. In fact, this Court categorized

the school board’s decision as one more in line with policy-

making rather than the imposition of discipline:

19

The board’s decision was only incidentally a dis-

ciplinary decision; it had significant governmen-

tal and public policy dimensions as well.

Id. at 495.

In fact, the obvious bias demonstrated by Rachel’s led

the Rachel’s I appellate panel to conclude that Hortonville

was inapplicable. The unanimous court in Rachel’s I

concluded that:

In this case, Rachel’s has established more than

mere political bias or an unfriendly political at-

mosphere. It was denied the right to challenge,

through cross-examination, the testimony of the

principal witness against it. The evidentiary rul-

ings by Mayor Pronovost were not merely erro-

neous but rather reflect a bias so persuasive as to

have rendered the proceedings violative of the

basic fairness component of due process.

Seminole Entertainment, Inc. v. City of Casselberry, 811

So.2d 693, 696-97 (Fla. 5th DCA 2001). (App. B). Unfor-

tunately, the majority of the Rachel’s II panel ignored the

holding of the Rachel’s I panel because of the unique

procedural posture of the cases. The Rachel's II panel

affirmed the trial court without addressing this due

process issue. Judge Cobb, the only judge who sat on both

panels, dissented in the Rachel’s II decision. This left

The Rachel’s I opinion was an appeal from the denial of a

temporary injunction filed in a companion declaratory judgment action.

Due to the unique procedural posture, the Rachel’s I opinion was

handed down after the trial court rendered its July 17, 2001 decision in

this action, but before the Rachel’s II opinion was rendered by another

panel of the Fifth District Court of Appeals of Florida.

20

Rachel’s in the unique position of having a majority of the

appellate judge’s who considered the matter finding a due

process violation, yet the trial court’s opinion was af-

firmed.

4

Vv

CONCLUSION

This Court should grant this petition to resolve the

deep and important conflict among both state and federal

courts as to the meaning of the “prompt judicial review”

safeguard in First Amendment prior restraint cases. The

lower court’s opinion, if it is allowed to stand, will sow

further confusion as to the proper meaning of “prompt

judicial review”.

Additionally, this Court should accept this case to

remedy what most assuredly is a strange series of rulings

below and which utterly conflict with this Court’s opinions

— which mandate that a defendant in a quasi-judicial

proceeding is guaranteed both a fair hearing and a neutral

fact finder.

Respectfully submitted,

VICTOR CHAPMAN STEVEN G. MASON, Esq.

BARRETT, CHAPMAN & RUTA Counsel of Record

Post Office Box 3826 STEVEN G. MASON, P.A.

Orlando, FL 32802-3826 1643 Hillcrest Street

(407) 839-6227 Orlando, FL 32803

(407) 648-1190 Facsimile (407) 895-6767

(407) 895-2090 Facsimile

Attorneys for Petitioner

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