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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1386%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 915

## Text

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
Be WTA, © RING cnicsssdacsnsesenssdedeabiceiadeuieaiaiaeiecmenanel 5

$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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1386%3A3. Public record. Not legal advice.