Opposition Brief — Seminole Entertainment, Inc. v. City of Casselberry

No. 02-1454

In the

Supreme Court of the United ite" msec

SEMINOLE ENTERTAINMENT, INC., dba RACHEL'S,

Petitioner,

CITY OF CASSELBERRY, FLORIDA,

Respondent.

ON PETITION FOR Writ OF CERTIORARI TO THE

District Court oF APPEAL OF FLoripA, Firru District

RESPONDENT'S BRIEF IN OPPOSITION

ANTHONY A. GARGANESE

Florida Bar Number 988294

Counsel of Record

USHER L. BROWN

Florida Bar Number 321461

ERIN J. O’-LEARY

Florida Bar Number 0001510

BROWN, SALZMAN, WEISS

& GARGANESE, P.A.

225 East Robinson Street

Suite 660

- Orlando, Florida 32802-2873

Telephone: (407) 425-9566

Facsimile: (407) 425-9596

Attorneys for Respondent

City of Casselberry

Curry & Tayv.cor @ (202) 393-4141 @ TTP: USSCINFO.COMm

TABLE OF CONTENTS

TELE E MEET ER SIE BEEN GAIED sivcesersorenssessuccrvssnssncsssinenvnasies 3

ARGUMENTS FOR DENYING THE PETITION............... 4

CIPO NIDY cbbncniuscvccnsniiensebisnintensuncscesiietenecinipcntaien 15

ii

TABLE OF AUTHORITIES

ARCARA V. CLOUD BOOKS, INC., 478 U.S. 697 (1986)....... 12

Boss CAPITAL V. CITY OF CASSELBERRY, 187 F.3D 1251

(11TH CIR. 1999), CERT. DENIED, 529 U.S. 1020 (2000) 7,

11

CITY OF ERIE V. PAP'S A.M., 529 U.S. 277, 287 (2000)13, 14

DEERFIELD BEACH V. VALLIANT, 419 So. 2D 624, 626 (FLA.

BIIIE ) x-ssncneirsiessnsecsnkosennsinihiantiespitanrasanddngiaaalavaimpieaasmamaaae 6

DUSSEAU V. METROPOLITAN DADE COUNTY BD. OF COUNTY

Comm'rs, 794 So. 2D 1270, 1273-74 (FLA. 2001)........... 6

FLORIDA POWER & LIGHT, 761 SO. 2D AT 1092-93 .............. 6

FREEDMAN V. MARYLAND, 380 U.S. 51 (1965).............. 4,11

FW/PBS, INC. Vv. CiTy OF DALLAS, 493 U.S. 215 (1990)4, 11

HORTONVILLE JOINT SCHOOL DISTRICT #1 V. HORTONVILLE

EDUCATION Ass'N, 426 U.S. 482 (1976)...........csesseeeseees 8

KOZIARA V. CITY OF CASSELBERRY, 239 F. SUPP. 2D 1245

CRED FEM GOED scrviiantosscicnnteineaniaieadleianigaaniidaiad 3

SEMINOLE ENTERTAINMENT, INC. V. CITY OF CASSELBERRY,

811 So. 2D 693 (FLA. 5TH DCA 2001).............. ce ceeeessreeees 2

SEMINOLE ENTERTAINMENT, INC. V. CITY OF CASSELBERRY,

813 So. 2D 186 (FLA. 5TH DCA 2002)................... 2, 5, 10

SEMINOLE ENTERTAINMENT, INC. Vv. CITY OF CASSELBERRY,

SO OO, ZAP LE, BD iicsesnissitsmuitcnispesisisnnsiastospalinensintagialiin 3

STATUTES

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$URC. 6 TAA ...ncee he Rarrat Seve 5

1

STATEMENT OF THE CASE

Seminole Entertainment, Inc., d/b/a Rachel’s

(“Rachel's”) was licensed to operate in the City of

Casselberry, Florida (“Casselberry”) as an adult

entertainment establishment, featuring striptease/erotic

dancing. Following a lengthy undercover investigation

by the Seminole County Sheriffs Office and the

City/County Investigative Bureau, law enforcement

agents obtained evidence that the management of

Rachel’s was. permitting prostitution and _ other

prohibited sexual activity, lewd activity, and drug sales

and use to occur on its premises. As a result of this

evidence, several arrests were made. Additionally,

Casselberry served Rachel’s with a notice of intent to

revoke its adult entertainment license. A revocation

hearing was subsequently held. Based upon the

evidence of illegal and prohibited activity that had been

occurring on the Rachel’s premises that was established

at the revocation hearing, Casselberry revoked Rachel’s

adult entertainment license for a period of two years,

effective February 1, 2001.

Rachel’s then began its series of attacks on the

revocation of its adult entertainment license in both

state and federal court. In state court, Rachel’s

instituted an action to enjoin enforcement of the

revocation order, as well as a separate action for

certiorari review of the revocation order. Specifically,

on February 1, 2001, Rachel’s instituted an action in the

Circuit Court for the Eighteenth Judicial Circuit, in and

for Seminole County, Florida (“circuit court”), for

declaratory judgment and _ permanent injunction

(“injunction action”). See Seminole Entertainment,

Inc. v. City of Casselberry, No. 01-CA-248-16P (Fla. 18"

Cir. Ct.). One month later on March 2, 2001, Rachel’s

2

instituted its action in the circuit court seeking

certiorari review of the revocation of its adult

entertainment license (“certiorari action”). See

Seminole Entertainment, Inc. v. City of Casselberry,

No. 01-23-AP (Fla. 18” Cir. Ct.).

In the injunction action, Rachel’s filed a request

for a temporary injunction enjoining the enforcement of

the revocation order. That request was denied, which

resulted in Rachel’s appealing that decision to the

Florida Fifth District Court of Appeal. The Fifth District

Court reversed the denial of the motion for temporary

injunction with directions to the circuit court to enter

the temporary injunction. See Seminole Entertainment,

Inc. v. City of Casselberry, 811 So. 2d 693 (Fla. 5" DCA

2001) (“Rachel’s I”).

With the temporary injunction in place enjoining

the enforcement of the revocation order, the certiorari

action was resolved with the circuit court issuing an

order denying Rachel’s petition for writ of certiorari.

Rachel’s then sought certiorari review of that decision in

the Fifth District Court of Appeal. The Fifth District

Court denied Rachel’s petition for writ of certiorari, and

in its opinion, also ordered that the temporary

injunction entered pursuant to the Rachel’s I decision

expired automatically with issuance of the opinion

denying certiorari relief. See Seminole Entertainment,

Inc. v. City of Casselberry, 813 So. 2d 186 (Fla. 5" DCA

2002) (“Rachel’s IT”).

The circuit court thereafter -esolved the

injunction action by entering summary judgment in

favor of Casselberry. Rachel’s appealed that decision to

the Fifth District Court of Appeal, and that appeal

remains pending. See Seminole Entertainment, Inc. v.

City of Casselberry, No. 5D02-3605 (Fla. 5" DCA).

Rachel’s also sought certiorari review in the

Florida Supreme Court of the Fifth District Court’s

Rachel’s II decision; that petition for writ of certiorari

was denied. See Seminole Entertainment, Inc. v. City

of Casselberry, 835 So. 2d 269 (Fla. 2002). Rachel’s now

seeks certiorari review of the Rachel’s IT decision in this

Court.

While all of this activity was ongoing in state

court, Rachel’s was also prosecuting an action for

declaratory judgment and injunction in the District

Court of the United States for the Middle District of

Florida. Rachel's efforts in that arena failed, too, with

the district court granting Casselberry’s motion for

summary judgment on Rachel’s claims. See Koziara v.

City of Casselberry, 239 F. Supp. 2d 1245 (M.D. Fila.

2002).

4

ARGUMENTS FOR DENYING THE PETITION

This case is the latest of Seminole Entertainment,

Inc.’s (hereinafter referred to as “Rachel’s”) many efforts

to challenge Casselberry’s revocation of Rachel’s adult

entertainment license. Like Rachel’s previous efforts to

have the decision revoking its adult entertainment

license quashed, this effort must fail too.

Rachel’s contends this Court should accept

jurisdiction over this matter in order to resolve the

conflict among the federal circuit courts of appeals and

the state courts on the issue of whether a prompt

judicial determination is required in adult entertainment

licensing decisions in order to satisfy the “prompt

judicial review” standard mandated by Freedman uv.

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

of Dallas, 493 U.S. 215 (1990). Additionally, Rachel’s

requests that this Court accept jurisdiction over this

matter because the lower court’s decision conflicts with

opinions of this Court pertaining to due process

violations since the Casselberry City Commission did

not disqualify itself from presiding over the revocation

hearing. This case does not present a valid basis upon

which this Court should exercise certiorari jurisdiction, -

and accordingly, Rachel’s Petition for a Writ of

Certiorari should be denied.

I. The Fifth District Court of Appeal did not

address either of the issues raised by

Rachel’s in its Petition for a Writ of

Certiorari, and therefore, this case does not

adequately present these matters to this

Court for review.

Rachel’s seeks to invoke the jurisdiction of this

Court under 28 U.S.C. § 1257, which vests this Court

with certiorari jurisdiction to review certain “[flinal

judgments or decrees rendered by the highest court of a

State in which a decision could be had.” 28 U.S.C. §

1257(a). The District Court of Appeal for the Fifth

District of Florida is an intermediate appellate court.

However, since the Florida Supreme Court, which is

Florida’s highest appellate court, declined to grant

certiorari review of the Fifth District Court’s decision,

the Fifth District Court is the “highest court” of this

State on this matter for the jurisdictional purposes of 28

U.S.C. § 1257(a). Accordingly, the “final judgment or

decree” that is before this Court for review is the

opinion on this matter that was issued by the Fifth

District Court of Appeal, which is reported at Seminole

Entertainment, Inc. v. City of Casselberry, Florida, 813 -

So. 2d 186 (Fla. 5" DCA 2002); the circuit court’s rulings

and written opinion are not matters with which this

Court should be concerned.

In order to understand the basis for the Fifth

District Court’s decision, one must understand the

process by which a party may seek review of quasi-

judicial decisions of administrative bodies in Florida.

Under Florida law, review of quasi-judicial decisions of

administrative bodies, including city commissions, may

be had under a two-tiered certiorari review system.

Under this system, once a city commission renders its

6

decision, the parties may seek certiorari review in the

state circuit court (trial court). Dusseau v.

Metropolitan Dade County Bd. of County Comm'rs, 794

So. 2d 1270, 1273-74 (Fla. 2001) (quoting Florida Power

& Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla.

2000)). This “first-tier” certiorari review is not

discretionary, but rather is a matter of right, and

therefore is more akin to plenary appeal. Jd. The scope

of the circuit court’s first-tier certiorari review is limited

to whether (1) procedural due process was accorded,

(2) the essential requirements of law were observed, and

(3) the administrative findings and judgment are

supported by competent substantial evidence. Deerfield

Beach v. Valliant, 419 So. 2d 624, 626 (Fla. 1982). After

the circuit court renders its decision on the petition for

writ of certiorari, a party may seek “second-tier” review

by seeking certiorari review of the circuit court decision

in the district court of appeal. Dusseau, 794 So. 2d at

1274 (quoting Florida Power & Light, 761 So. 2d at

1092). The district court, upon review of the circuit

court’s judgment, determines whether the circuit court

(1) afforded procedural due process and (2) applied the

correct law. Valliant, 419 So. 2d at 626. The district

court, on second-tier certiorari review, may not review

the record to determine whether the city commission’s

decision is supported by competent, substantial

evidence. Florida Power & Light, 761 So. 2d at 1092-93.

In this case, the circuit court addressed the

merits of the two arguments that Rachel's raised in the

Petition for a Writ of Certiorari that it filed with this

Court and rejected them; the circuit court determined

that Rachei’s was afforded procedural due process, the

essential requirements of law were observed, and the

Casselberry City Commission's findings and judgment to

revoke Rachel’s adult entertainment license were

7

supported by competent substantial evidence. See

Seminole Entertainment, Inc. v. Casselberry, 8 Fila. L.

Weekly Supp. 613a (Fla. 18" Jud. Cir. July 17, 2001).’

Specifically, the circuit court rejected Rachel’s “prompt

judicial review” argument on the basis that this case

does not involve a prior restraint on expression; rather,

the revocation of Rachel’s adult entertainment license

was punishment for Rachel’s knowingly allowing

unlawful and prohibited activity to occur on its

premises. See id. Additionally, the circuit court decided

that in licensing cases such as this, “prompt judicial

review only means access to prompt judicial review, not

prompt judicial decision and certainly not the right of

the executive branch to mandate how quickly the

judicial branch does its business.” See id. at

Further, the circuit court adopted the reasoning of the

Eleventh Circuit Court of Appeals in Boss Capital v.

City of Casselberry, 187 F.3d 1251 (11" Cir. 1999), cert.

denied, 529 U.S. 1020 (2000), which specifically declared

Casselberry’s adult entertainment licensing scheme

constitutional. Seminole Entertainment, Inc., 8 Fla. L.

Weekly Supp. 613a.

Rachel’s second argument, which asserts a due

process violation because the Casselberry City

Commission did not disqualify itself from presiding over

the revocation hearing, was rejected by the circuit court

on the basis that under the facts of this case, the City

Commission was precluded by Florida Statutes and the

' Seminole Entertainment, Inc. v. Casselberry, 8 Fla. L.

Weekly Supp. 613a (Fla. 18" Jud. Cir. July 17, 2001) is included at

Appendix C, which is pages 21 through 29, of the Appendix to

Rachel's Petition for a Writ of Certiorari.

* See pages 22 and 23 to the Appendix to Rachel's Petition

for a Writ of Certiorari.

8

Rules of the Florida Commission on Ethics from

disqualifying itself. See id. at ____ (citing Ch. 112, Fila.

Stat.; § 112.3143(3)(a), Fla. Stat.; § 286.012, Fla. Stat.; Op.

Fla. Comm. Ethics 79-14 (1979)). The circuit court

noted that it was also “guided” by this Court’s opinion in

Hortonville Joint School District #1 v. Hortonville

Education Ass’n, 426 U.S. 482 (1976). See id. However,

the circuit court’s basis for rejecting this argument was

founded on Florida Statutes and the Rules of the Florida

Commission on Ethics, not the Hortonville opinion. See

id.

After failing in the circuit court in its efforts to

have the decision revoking its adult entertainment

license quashed, Rachel’s sought second-tier certiorari

review of the revocation in the Fifth District Court of

Appeal. The Fifth District Court then analyzed the case

within the confines of its limited scope of review, and

concluded in relevant part as follows:

As to whether the circuit court

afforded Rachel’s procedural due process,

in its petition for certiorari Rachel’s does

not even contend to the contrary. Rather,

in asserting a due process argument,

Rachel's improperly argues that it was not

afforded procedural due process in the

hearing before the city commission.

Arguments as to the alleged lack of due

precess before the city commission were

properly presented to the circuit court but

are beyond the scope of the due process

review available here.

As to whether the circuit court

applied the correct law, the certiorari

9

petition filed by Rachel’s once again

primarily and improperly focuses on

alleged legal errors committed during the

city commission proceedings, not the

application of incorrect law by the

circuit court during the certiorari

proceedings. Such arguments are not

properly before us for review. The only

arguments directed toward the circuit

court’s alleged application of incorrect law

were as follows:

(3) The circuit court applied

the incorrect law in finding that the

prompt judicial review

constitutionally mandated in prior

restraint cases simply means

prompt judicial access, not a

prompt judicial decision.

However, in support of each of

these arguments, fRachel’s simply

contends that the circuit court came to an

incorrect legal conclusion based on the

facts before it. As such, its arguments do

not support a reversal in this second tier

certiorari proceeding.

The remaining arguments raised by

Rachel’s relate to whether there was error

in the conduct of the hearing by the city

commission or evidentiary rulings made

during that hearing. Those issues were for

determination by the circuit court in its

10

first tier certiorari review and do not

support a granting of second tier

certiorari by this court....

We deny Rachel’s petition for writ

of certiorari. . .

Rachel’s II, 813 So. 2d at 188 (emphasis added)

(footnote omitted).

As its opinion indicates, the Fifth District Court

of Appeal did not address either of the issues that

Rachel's has raised in the Petition for a Writ of

Certiorari that it has filed with this Court. The Fifth

District Court correctly applied Florida law which limits

the scope of second-tier certiorari review and denied

Rachel’s request for relief because each of the

arguments Rachel's raised before it either were beyond

the scope of its second-tier certiorari review, or did not

“support a reversal” in the second tier certiorari

proceeding. Id. at 189. Accordingly, Rachel’s

contention on page 13 of its Petition for a Writ of

Certiorari that the Fifth District Court of Appeal

addressed and decided the “prompt judicial review”

standard is simply false. Since the Fifth District Court

of Appeal did not address either of the issues that

Rachel's has raised before this Court on the merits, the

“highest court” of Florida has not rendered a decision

on these matters, and therefore, this Court should

decline to exercise jurisdiction to review this case.

11

Il. Assuming arguendo that “prompt judicial

review” under Freedman, 380 U.S. 51 and

FW/PBS, Inc., 493 U.S. 215, mandates

“prompt judicial decision,” and_ that

disqualification of the entire City

Commission was necessary, the facts of this

case are so one-sided that Rachel’s adult

entertainment license still would have been

revoked and Casselberry still would have

prevailed in all court proceedings even if the

City Commission had disqualified itself and

the revocation proceedings had been heard

and decided by another body.

Prior to the revocation of its adult entertainment

license, Rachel’s had been operating as an adult

entertainment establishment featuring striptease/erotic

dancing in Casselberry for approximately ten years.

Such entertainment was a permitted activity under

Casselberry’s adult entertainment code.’

Following a lengthy undercover investigation by

the Seminole County Sheriffs Office and _ the

City/County Investigative Bureau, law enforcement

agents obtained evidence that the management of

Rachel’s was permitting prostitution and other

prohibited sexual activity, lewd activity, and drug sales

and use to occur on its premises. As a result of this

evidence, several arrests were made. Additionally,

Casselberry served Rachel’s with a notice of intent to

revoke its adult entertainment license. A revocation

hearing was subsequently held. Based upon the

' As previously stated, Casselberry’s adult entertainment

licensing scheme was expressly declared to be valid in Boss

Capital, 187 F.3d 1251.

12

evidence of illegal and prohibited activity that had been

occurring on the Rachel’s premises that was established

at the revocation hearing, Casselberry revoked Rachel's

adult entertainment license for a period of two years,

effective February 1, 2001.

It is well established that a governmental agency

may, via enforcement of a penal statute or ordinance,

impose sanctions on unlawful, nonexpressive activity,

even if such unlawful, nonexpressive activity is

occurring in a premises where constitutionally

protected expression is also occurring. See Arcara v.

Cloud Books, Inc., 478 U.S. 697 (1986). Further, one

may not hide behind expressive, constitutionally

protected activity in order to avoid the consequences of

his unlawful, non-expressive conduct. See id.

In this case, there was a plethora of evidence that

unlawful and prohibited activity was occurring on the

Rachel’s premises, and that the management of Rachel's

had full knowledge of the unlawful and prohibited

activity. In the face of these facts, any reasonable body

presiding over the hearing regarding the revocation of

Rachel’s adult entertainment license would have

revoked Rachel's adult entertainment license. Further,

under the facts of this case, the ability to obtain a

prompt, or even immediate, judicial decision regarding

the propriety of the revocation of Rachel’s license would

not have resulted in any decision other than a decision

to uphold the revocation of Rachel's adult entertainment

license. Simply stated, the facts of unlawful and

prohibited activity in this case are so abundant and so

one-sided that Rachel's adult entertainment license still

would have been revoked and Casselberry still would

have prevailed in all court proceedings even if the City

Commission had disqualified itself and even if the

13

revocation proceedings had been heard and decided by

another body. Accordingly, this case does not merit

having this Court exercise certiorari jurisdiction over it.

Ill. This case does not present a justiciable

controversy.

As this Court explained in City of Erie v. Pap’s

A.M., 529 U.S. 277, 287 (2000),

A case is moot when the issues presented

are no longer live or the parties lack a

legally cognizable interest in the outcome.

The underlying concern is that, when the

challenged conduct ceases such that there

is no reasonable expectation that the

wrong will be repeated, then it becomes

impossible for the court to grant any

effectual relief whatever to the prevailing

party. In that case, any opinion as to the

legality of the challenged action would be

advisory.

(internal citations and quotation marks omitted).

Rachel’s adult entertainment license was not

permanently revoked, it was merely revoked for a

period of two years, effective February 1, 2001. The

period of the revocation has been served. In fact,

Rachel’s applied for and was granted a new adult

entertainment license, and is open and operating once

again as an adult entertainment establishment featuring

striptease/erotic dancing in Casselberry. Since the

period of the revocation of Rachel's adult entertainment

license has passed, since the basis upon which Rachel’s

adult entertainment license was revoked (i.e., the illegal

14

and prohibited activity that Rachel’s management was

permitting to occur on the premises) would not

independently form the basis for any new revocation of

Rachel's adult entertainment license, and since there is

no reasonable expectation that Rachel’s management

will permit such unlawful and prohibited activity to

occur on its premises in the future, it is impossible for

this Court to “grant any effectual relief” to Rachel’s in

this matter. See id. Any opinion which this Court could

issue in this case would be merely advisory. Thus, this

matter is moot and no longer presents a justiciable

controversy for this Court to resolve. This Court should

decline to exercise jurisdiction over this case and

should deny Rachel’s Petition for a Writ of Certiorari.

15

CONCLUSION

For the foregoing reasons, the City of Casselberry

respectfully requests that this Honorable Court deny the

Petition for a Writ of Certiorari.

RESPECTFULLY SUBMITTED,

ANTHONY A. GARGANESE

Florida Bar Number 988294

Counsel of Record

USHER L. BROWN

Florida Bar Number 32146]

ERIN J. O’LEARY

Florida Bar Number 0001510

BROWN, SALZMAN, WEISS &

GARGANESE, P.A.

225 East Robinson Street, Suite 660

Orlando, Florida 32802-2873

Telephone: (407) 425-9566

Facsimile: (407) 425-9596

Attorneys for Respondent

City of Casselberry