Opposition Brief — Jacksonville, Florida v. Lady J. Lingerie, (1999) (No. 356)

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(I BED

No. 99-356 I .

eee THE CLERK

| BO OE

IN THE

Supreme Court of the United States

CITY OF JACKSONVILLE,

Petitioner,

v.

LADY J. LINGERIE, INC., et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Gary S. EDINGER*

305 N.E. Ist Street

Gainesville, Florida 32601

(352) 338-4440

RICHARD L. WILSON

3610 Dubsdread Circle

Orlando, Florida 32804-3052

(407) 649-9225

Attorneys for Respondents

* Counsel of Record

155268 @) Counse’ Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

i

PARTIES TO THE PROCEEDING

The Petitioner/Defendant is the consolidated City of

Jacksonville, a municipal corporation located in Duval

County, Florida.

The Respondents/Plaintiffs are the following individuals

and corporations:

Lady J. Lingerie, Inc. Jerome Bonnett

Buford B. Breland Brian A. Cleland

Gregory A. King Milt Howard

The 14003 Corporation, a Florida corporation

The 850 Corporation, a Florida corporation

Emro Corporation, a Fiorida corporation

ii

STATEMENT PURSUANT TO RULE 29.6

There are no parent corporations or publicly held

companies owning 10% or more of the stock of the corporate

Respondents.

ili

TABLE OF CONTENTS

Parties 0 the Proceeding. .........0 cece ees

Statement Pursuant to Rule 29.6 ...............

a ea ees

ee

ee es

Reasons for Denying the Writ .................

I.

The Decision Below Does Not Conflict With

Any Decision Of The Second Circuit, Or Any

Other Circuit, As The Courts Unanimously

Agree That Zoning Exceptions May

Constitute A Prior Restraint When Adult

Uses Are Not Allowed As A Matter Of

I REM AG oy Sak k Gialy'b bias. 5 05. oko 49 6

A. The City’s Position That Prior Restraint

Analysis Is Limited To Business

Licensing Schemes Is Not Supported By

Any Precedent In This Court Or Any

Other Court In This Country. ........

B. Use Of More Stringent Prior Restraint

Analysis Will Have No Practical Effect

On The City’s Ability To Zone Or To

Protect The Welfare Of Its Citizens.

.. 6.6. 0 @. S858 Oo 8-46.48. 6,816 8.0 66:0 0 6:09 8 8 2 8 8 O

iv

Contents

Page

Il. The Decision In Steakhouse v. City Of Raleigh

Is From An Interlocutory Appeal, Based On

A Unique Set Of Facts, And Does Not Present

A Conflict With The Decision Below. ..... 11

LI Ss 5 40 bub a Pow iak eee 16

TABLE OF CITED AUTHORITIES

Page

Cases:

Amico v. New Castle County, 571 F. Supp. 160 (D.

EG, SEE coh hace Re rnk ae NAC eae ciao eee xo 2,8

Barnes v. Glen Theatre, Inc., 502 U.S. 560, 111 S.

Ce, EE TG ial saa ce cabesetbaabackaes 9

Bukaka, Inc. v. County of Benton, 852 F. Supp. 807

i SE alae Neds kioe eka ty tenn ein he By

Carson v. American Brands, Inc., 450 U.S. 79, 101

Dh Soy SU NEE 9c Ov 0h 0644 banat bea e ae 12

City of Renton v. Playtime, Theatres, Inc., 475 U.S.

Si, 10GB. CA. Sas Cie) sce cnensnces 3, 4, 5, 6, 8, 9

Crown Street Enterprises, Inc. v. City of New Haven,

989 F. Supp. 420 (D. Conn. 1997) .......... 2, 3, 4,5

Dease v. City of Anaheim, 826 F. Supp. 336 (C.D.

eR | Re ee Pere ener e eae eee 7,8

D.G. Restaurant Corporation v. City of Myrtle

Beach, 953 F.2d 140 (4th Cir. 1991) .......... 8

Dia v. City of Toledo, 937 F. Supp. 673 (N.D. Ohio

SUE rca Users Abe Greed ied Fea beter 2, 8, 15

11126 Baltimore Boulevard, Inc. v. Prince George's

County, Md., 58 F.3d 988 (4th Cir. 1995) ...... 7, 15

vi

Cited Authorities

Page

15192 Thirteen Mile Road, City of Warren, 593

F. Supp. 147 (E.D. Mich. 1984) .............. 8

Franken Equities, L.L.C. v. City of Evanston, 967

P. Sep. 1253 (DD. Wye ESRI e Ace cccensavces 2, 8, 15

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

GOWUED bh sch ibs 6CEKceRAN WES TONRERN bee beads 1,10

FW/PBS vy. City of Dallas, 493 U.S. 215, 110 S. Ct.

SOU EEROOE si censccnneuss Gokbanee By doy Oa Boe Oe

Marty's Adult World v. Town of Enfield, 20 F.3d 512

CDT SOE 5 ohne oes nine wens Asab eee >

Santa Fe Springs Realty Corp. v. City of

Westminster, 906 F. Supp. 1341 (C.D. Cal. 1995)

che kakeben beet kone shat ehbkehanehe Mace 7

Schad v. Mount Ephraim, 452 U.S. 61, 101 S. Ct.

BE PR OEE 6 5.0505 d Vas An aka baa an Oe ae 9

754 Orange Ave., Inc. v. City of West Haven, Conn.,

761 B26 TGS COCR. UGG ee vita ned cannes ss y ee

Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.

CR SES CGR nk kdAatk soaks eke eas 5

Steakhouse, Inc. v. City of Raleigh, 166 F.3d 634

CO Cor. TRE) ice iv tg ens 1, 13,42, 13, 14, 83 46

vii

Cited Authorities

Page

3570 East Foothill Blvd., Inc. v. City of Pasadena,

912 F. Supp. 1268 (C.D. Cal. 1996) .......... 1 Ab

TJ's South, Inc. v. Town of Lowell, 895 F. Supp. 1124

eB eee 7

University Of Texas v. Camenisch, 451 U.S. 390,

COR Ws ls SERED bs UU os Fac dew ciwiedie 11

Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d

a kA Ri ne a nn 8

United States Constitution:

BRAS oa eae 1, 7, 9, 16

l

STATEMENT OF THE CASE

The decision below properly determined that the

Jacksonville zoning exception ordinance was an unlawful

prior restraint under the authority of FW/PBS v. City of

Dallas, 493 U.S. 215, 110 S. Ct. 596 (1990) and Freedman

v. Maryland, 380 U.S. 51, 85 S. Ct. 734 (1965). The lower

courts are completely unified on this issue and there is no

split among the circuits. The case of Steakhouse, Inc. v. City

of Raleigh, 166 F.3d 634 (4th Cir. 1999) is an isolated

opinion, decided on unusual facts, and does not represent a

shift in the legal position of the Fourth Circuit. Neither is it

in meaningful conflict with this Eleventh Circuit case. Given

the established nature of the legal issues, there is no question

of overriding public importance presented by this case.

REASONS FOR DENYING THE WRIT

I. THE DECISION BELOW DOES NOT CONFLICT

WITH ANY DECISION OF THE SECOND CIRCUIT,

OR ANY OTHER CIRCUIT, AS THE COURTS

UNANIMOUSLY AGREE THAT ZONING EXCEP-

TIONS MAY CONSTITUTE A PRIOR RESTRAINT

WHEN ADULT USES ARE NOT ALLOWED AS A

MATTER OF RIGHT.

The City claims that there is a conflict among the Circuits

concerning the proper analysis of zoning exceptions as prior

restraints. The City acknowledges that the case decided

below by the Eleventh Circuit is in accord with cases decided

in the Fourth, Seventh and Ninth Circuits. (Petition at 14).

That is, each of these courts would analyze a zoning

exception or conditional use permit requirement as a prior

restraint when applied against a First Amendment activity.

2

Respondents would add cases from the Third, Sixth, Eighth

and Tenth Circuits to this list. See Amico v. New Castle

County, 571 F. Supp. 160 (D. Del. 1983); Dia v. City of

Toledo, 937 F. Supp. 673 (N.D. Ohio 1996); Bukaka, Inc. v.

County of Benton, 852 F. Supp. 807 (D. Minn. 1993);

Franken Equities, L.L.C. v. City of Evanston, 967 F. Supp.

1233 (D. Wyo. 1997).

In an attempt to demonstrate conflict between the

Circuits, the City nominates two cases from the Second

Circuit as its standard bearers: Crown Street Enterprises,

Inc. v. City of New Haven, 989 F. Supp. 420 (D. Conn. 1997)

and Marty's Adult World v. Town of Enfield, 20 F.3d 512

(2d Cir. 1994). However, a careful review of those two cases,

and the history of the law in the Second Circuit, shows that

there is only harmony between the Circuits. Indeed, the

Second Circuit was one of the early leaders in applying the

law of prior restraint to zoning situations.

In 754 Orange Ave., Inc. v. City of West Haven, Conn.,

761 F.2d 105 (2d Cir. 1985), the Second Circuit held that a

zoning ordinance targeting adult businesses was an

unconstitutional prior restraint because it left unfettered

discretion in the hands of decisionmakers. (“[T]he City’s

threat to enforce its zoning and licensing ordinances against

754 Orange operates as a prior restraint”). Jd. at 111. This is

precisely the holding in the instant case as well as all of the

other cases which have addressed the issue. Furthermore,

this decision is in accord with this Court’s ruling in

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S. Ct. 596

(1990).

The Second Circuit has never overturned, questioned or

limited its holding in 754 Orange Ave. Nevertheless, the City

3

claims that Marty’s Adult World and Crown Street

Enterprises (which relies on Marty’s Adult World) have

reached the opposite conclusion. However, a review of both

cases shows that the City’s assertion is patently incorrect.

Both of these cases applied the time, place and manner

restriction adopted by this Court in City of Renton v.

Playtime, Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925 (1986)

because there were sufficient sites available elsewhere where

adult businesses could open as of right. The fact that a

particular applicant was in a location which required a special

exception did not create a prior restraint because there were

alternate avenues of communication available elsewhere in

the jurisdiction. Viewed another way, the sites which required

a special exception were surplus locations since abundant

sites were available in other zones as a matter of right.

This is not simply a matter of interpretation, but comes

directly from the language of the two decisions. In Marty’s

Adult World, the Second Circuit writes:

The special use permit requirement also is a time,

place and manner regulation, since Marty’s could

operate elsewhere in Enfield without obtaining a

special use permit.

20 F.3d at 515.

The complaint in Crown Street Enterprises was that a

special exception was required for the particular use

contemplated by the adult business. However, other adult

businesses, with a slightly different format, were allowed as

of right in multiple zoning districts. As in the case of Marty's

Adult World, there were sufficient sites before one considered

the special exception. Again relying on the Court’s own

words we learn the following:

4

Similarly, in the present case, while plaintiffs may

not open an adult cabaret anywhere in the city

without approval, the city may not preclude the

operation of plaintiffs business in zones BD, BD-

1, BE, IL or IH “simply because” plaintiffs wish

to offer topless dancing. Rather, the ordinance

restricts dancing in those zones only in the

particular context of a dining or drinking

establishment.

989 F. Supp. at 423-24.

In the case at Bar, prior restraint analysis was util ed

precisely because there were not enough sites available as

of right. The district court found that there were only two

sites in Jacksonville where an adult business of any kind

could operate as a matter of right, without a zoning exception.

The district court concluded that those two sites would be

inadequate as a matter of law under the Renton standards.

(“There is no question that if only two sites were available

for adult use in a city the size of Jacksonville, it would be

insufficient to meet the requirements of Renton”). Lady J.

Lingerie, Inc. v. City of Jacksonville, 973 F. Supp. 1428,

1438 (M.D. Fla. 1997). However, the trial court erroneously

counted additional sites that required governmental approval

under an arbitrary ordinance which lacked procedural and

substantive safeguards. Jd. at 1438-40. The Eleventh Circuit

reversed the decision because it concluded that those sites

subject to the zoning exception requirement could not be

counted as available for adult uses. Lady J. Lingerie, Inc. v.

City of Jacksonville, 176 F.3d 1358, 1361-63 (11th Cir.

1999). Because Jacksonville did not have sufficient alternate

avenues of communication (i.e. sufficient sites for adult

uses), the special exception ordinance was properly

considered to be a prior restraint.

a ee a

5

When analyzed properly, it is evident that there is no

conflict between the opinion below and the decisions of the

Second Circuit. The Second Circuit case of 754 Orange

Avenue adopted precisely the same prior restraint analysis

in a zoning context not unlike this Eleventh Circuit case.

Marty's Adult World and Crown Street Enterprises do not

change the law in the Second Circuit one iota. Indeed, both

cases are readily harmonized with Lady J. Lingerie and 754

Orange Avenue. There is no conflict between the Eleventh

Circuit and any other Circuit and no reason for this Court to

exercise certiorari jurisdiction in this case.

A. The City’s Position That Prior Restraint Analysis Is

Limited To Business Licensing Schemes Is Not

Supported By Any Precedent In This Court Or Any

Other Court In This Country.

The essence of the prior restraint doctrine is that

government may not prohibit free speech in advance except

under very precisely defined circumstances, all of which are

subject to judicial review. Shuttlesworth v. Birmingham, 394

U.S. 147, 150, 89 S. Ct. 935, 938 (1969). The City would

have the Courts abandon a functional approach to prior

restraints in favor of a deterministic system governed by the

name assigned to a particular form of legislation: if the

ordinance is a “zoning law”, it is analyzed under Renton; if

it is a “license regulation”, FW/PBS would control. The City

would then classify all conditional use permits and zoning

exceptions as “Renton tools” which would be subject to time,

place and manner review. Petitioner prefers to ignore the

fact that a conditional use permit can prohibit free speech

just as effectively as a general licensing ordinance governing

factors other than location.

6

The City is correct in relying on Renton for the

proposition that adult businesses must be given a reasonable

opportunity to open and operate. Renton, 475 U.S. at 54

(Petition at 17). However, nowhere in Renton, or in any other

decision of this Court, can the City find support for the idea

that zoning laws are exempt from the prohibition against

unlawful prior restraints. The Eleventh Circuit correctly

noted that the subject ordinance acted as a prior restraint

because

[I]t channels nearly all adult entertainment

establishments through the exceptions process.

That process in turn gives the zoning board

discretion to delay a decision indefinitely or to

covertly deny applications for content-sensitive

reasons.

Lady J. Lingerie, 176 F.3d at 1363.

The Eleventh Circuit recognized that zoning ordinances

are commonly upheld as constitutional time, place and

manner restrictions. Jd. at 1361. However, in this instance,

the zoning ordinance was utilized in such a manner as to

make it equivalent to a licensing requirement:

[T]o operate in the CCG-2 zone, an adult

entertainment establishment must apply for an

exception. This makes an exception the equivalent

of a license. The City does have a separate

licensing procedure for adult entertainment

establishments (for which, incidentally, a zoning

exception is a prerequisite), but the

indispensability of the zoning exception persuades

us to treat it like a license as well.

Id.

7

This decision simply recognizes that adult businesses

can be excluded from a community by arbitrarily denying

special exceptions in exactly the same manner as the denial

of a commercial license. This Court recognized the same

danger in FW/PBS when it rejected claims that content-

neutral licensing regulations applicable to every other

business could not be treated as prior restraints. FW/PBS v.

City of Dallas, 493 U.S. at 223, 110S. Ct. at 603. The lower

courts have all followed the same analysis when presented

with zoning ordinances that require government approval

before an adult site may open. As one Circuit Court said:

Following the decision in Renton, the Court has

made clear that otherwise valid content-neutral

time, place and manner restrictions that require

government permission prior to engaging in

protected speech must be analyzed as prior

restraints and are unconstitutional if they do not

limit the discretion of the decisionmaker and

provide for the Freedman procedural safeguards.

11126 Baltimore Boulevard, Inc. v. Prince George's County,

Md., 58 F.3d 988, 995 (4th Cir. 1995).

Designation of an ordinance as a zoning measure as

opposed to a licensing regulation has no effect on the legal

analysis to be applied in a First Amendment case. This Court,

and every other Court which has reviewed the issue, refuses

to be fooled by mere nomenclature. See, e.g., 3570 East

Foothill Blvd., Inc. v. City of Pasadena, 912 F. Supp. 1268

(C.D. Cal. 1996); Santa Fe Springs Realty Corp. v. City of

Westminster, 906 F. Supp. 1341 (C.D. Cal. 1995); TJ's South,

Inc. v. Town of Lowell, 895 F. Supp. 1124 (N.D. Indiana,

1995); Dease v. City of Anaheim, 826 F. Supp. 336 (C.D.

8

Cal. 1993); 15192 Thirteen Mile Road, City of Warren, 593

F. Supp. 147 (E.D. Mich. 1984); 754 Orange Avenue, supra;

Bukaka, Inc. v. County of Benton, supra; Franken Equities,

supra; Dia v. City of Toledo, supra; Amico v. New Castle

County, supra. The City’s arguments to the contrary are

merely wishful thinking without any support in the law.

B. Use Of More Stringent Prior Restraint Analysis Will

Have No Practical Effect On The City’s Ability To

Zone Or To Protect The Welfare Of Its Citizens.

The City argues that analyzing zoning laws as a prior

restraint is bad policy because it deprives local government

of the ability to effectively plan for development. That

argument is hogwash. All a City need do is specify a

sufficient number of locations or zones where adult

businesses may operate as a matter of right. If there are

alternate avenues of communication, Renton is satisfied and,

presumably, citizens have sufficient access to adult

communication without interference from censorship bodies

sitting as local planners.

There is nothing in the Lady J. Lingerie decision, or the

dozens of cases like it, which in any way limit government’s

ability ‘~ zone and plan for the benefit of its citizens. Lady

J. Lingerie and its sister decisions function only to protect

society against government attempts to censor objectionable

speech. In return, society does not have to give up any of its

conventional zoning tools. For instance, local governments

commonly restrict adult uses to intensely commercial zones

or industrial districts. See, e.g., Z.J. Gifts D-2, L.L.C. v. City

Aurora, 136 F.3d 683 (10th Cir. 1998); D.G. Restaurant

Corporation v. City of Myrtle Beach, 953 F.2d 140 (4th Cir.

1991). In so doing cities engage in responsible planning by

isolating alleged adverse secondary affects.

9

Government is also free to impose conditional use

permits and other special exception schemes when regulating

adult businesses, so long as sufficient sites are available as

of right. This is the lesson to be learned from cases such as

Marty's Adult World, supra. The fact that adult uses are

prohibited in some zones or require a special exception in

order to locate there does not take away from the fact that

adult communication is readily available as a general matter.

See, generally, Renton, 475 U.S. at 54.

The Court in Lady J Lingerie did not depart from this

principle. The district court found that only two sites were

available as of right in the entire consolidated City of

Jacksonville. The appellate court was correct in concluding

that two sites are not sufficient for a city the size and character

of Jacksonville. To hold otherwise would make a mockery

of the constitutional protections afforded by this Court in

cases such as Barnes v. Glen Theatre, Inc., 502 U.S. 560,

111 S. Ct. 2456 (1991)! and Schad v. Mount Ephraim, 452

U.S. 61, 101 S. Ct. 2176 (1981).

The City overstates the effect of the appellate decision

on its ability to effectively zone both generally and with

respect to adult businesses. The Eleventh Circuit made it

perfectly clear that the City was free to apply its special

exception standards and procedures to any zoning issues

other than those governed by the First Amendment:

To be clear, the City may still use the (c)(1)

criteria (and /c)(2), for that matter) for applicants

who are not entitled to First Amendment

protection. We only find troublesome the

i. In Barnes, eight justices concluded that nude dance is

entitled to at least “minimal” protection under the First Amendment.

10

application of the otherwise-valid zoning criteria

to adult businesses like the plaintiffs’.

Lady J. Lingerie, Inc., 176 F.3d at 1362.

Neither is the City precluded from utilizing its zoning

powers to address the adverse secondary effects thought to

be associated with adult businesses. The Eleventh Circuit

stressed that the full panoply of zoning powers is available

to the City and that proper laws can certainly be enforced

against adult businesses:

Combating the harmful secondary effects of adult

businesses, such as increased crime and

neighborhood blight, is a substantial government

interest. See City of Renton, 475 U.S. at 50-52,

106 S.Ct. 925; Barnes v. Glen Theatre, Inc., 501

U.S. 560, 583-84, 111 S.Ct. 2456, 115 L.£d.2d

504 (1991) (Souter, J., concurring in the

judgment).

Most zoning ordinances easily meet these

standards, but this ordinance does not.

Lady J. Lingerie, Inc., 176 F.3d at 1361.

The class of businesses effected by Lady J. Lingerie is

limited only to those with serious First Amendment

implications. Jd. at 1362. The City is free to apply its existing

laws against car washes, daycare centers and shopping malls;

it simply cannot enforce these standards in a First

Amendment setting. Thus, the City’s concerns about the

additional administrative burden imposed by Freedman and

11

FW/PBS is substantially ameliorated by the simple fact that

the class of potential applicants is quite small. Only ten to

fifteen lingerie businesses operated in the City prior to the

enactment of the ordinance. Lady J. Lingerie, 973 F. Supp.

at 1444. Surely the City has the resources to process these

few applications on an expedited basis.

Even if the City elects not to enact new zoning legislation

to meet constitutional standards, it is apparent that this ruling

will have almost no eftect on Jacksonville’s daily practices.

The decision will have even less impact on businesses and

local governments elsewhere in the country. The Petition

for Writ of Certiorari does not raise any issue >f public policy

which would require the attention of this Court.

II. THE DECISION IN STEAKHOUSE v. CITY OF

RALEIGH IS FROM AN INTERLOCUTORY APPEAL,

BASED ON A UNIQUE SET OF FACTS, AND DOES

NOT PRESENT A CONFLICT WITH THE DECISION

BELOW.

The Fourth Circuit decision in Steakhouse, Inc. v. City

of Raleigh, 166 F.3d 634 (4th Cir. 1999) is an isolated case

decided on unusual facts and does not truly conflici with the

decision below. In addition, the Steakhouse appeliate

decision is unlikely to be the final word even within that

case. Steakhouse was determined on the basis of an

interlocutory appeal from the denial of a preliminary

injunction. Accordingly, both the triai court and the appellate

court are free to disregard their earlier decisions if the merits

of the case show that the injunction was improvidently

denied. See, University Of Texas v. Camenisch, 451 U.S.

390, 395, 101 S. Ct. 1830, 1834 (1981) (“[T]he findings of

fact and conclusions of law made by a court granting a

preliminary injunction are not binding at trial on the merits.”).

12

While there is no legal bar to the grant of certiorari from

an interlocutory appeal, history shows that review of such

appeals is rarely advisable. As this Court said in Carson v.

American Brands, Inc., 450 U.S. 79, 84, 101 S. Ct. 993, 996-

97 (1981).

[A]ppeal as of right under § 1292(a)(1) will be

avai!2ole only in circumstances where an appeal

will further the statutory purpose of “permit[ting]

litigants to effectually chatlenge interlocutory

orders of serious, perhaps irreparable,

consequence.” Baltimore Contractors, Inc. v.

Bodinger, supra, at 181, 75 S.Ct., at 252. Unless

a litigant can show that an interlocutory order of

the district court might have a “serious, perhaps

irreparable, consequence,” and that the order can

be “effectually challenged” only by immediate

appeal, the general congressional policy against

piecemeal review will preclude interlocutory

appeal.

The findings of fact in Steakhouse are not even binding

on the Fourth Circuit. Nevertheless, the City relies on those

facts to argue conflict with Lady J. Lingerie. The City focuses

on the list of factors which the Raleigh Board of Adiustment

utilized in evaluating special exception applications. The City

argues that those factors are substantially similar to those

considered under the Jacksonville zoning ordinance.

However, that leap of faith is not warranted by a comparison

of the cases.

The Court in Steakhouse merely lists the factors to be

considered by the Board of Adjustment. Steakhouse, 166 F.3d

at 639-40. The ordinance itseif is not attached to the opinion

13

nor is it quoted at any length. There may well have been a

definitional section or companion ordinance in Steakhouse

which expanded on the simple list of factors found in the

opinion. In contrast, the entire Jacksonville Ordinance is set

forth in the case below and the Eleventh Circuit is justified

in concluding that:

None of the nine criteria is precise and objective.

All of them — individually and collectively —

empower the zoning board to covertly

discriminate against adult entertainment

establishmer:s under the guise of general

“compatibility” or “environmental” consid-

erations.

Lady J. Lingerie, 176 F.3d at 1362.

Given the interlocutory posture of the Steakhouse appeal,

and the sketchy information provided by the Fourth Circuit,

one simply cannot tell whether the Jacksonville ordinance

is similar to the Raleigh ordinance. It would be equally

reasonable to conclude that different Courts reached different

determinations on the basis of different facts. It is unlikely

that Steakhouse and Lady J. Lingerie will have any great

impact beyond the particular facts and the particular litigants.

When the Steakhouse case is examined in more detail, it

is clear that one unique fact made a substantial impression

on the appellate court. The Fourth Circuit was obviously

concerned with the disparity between the appellant’s legal

position and the manner in which it conducted itself below.

The appellant complained that the ordinance was defective

because it did not provide for prompt review of permitting

decisions. Ordinarily, this would prove the death knell for a

14

permitting ordinance under FW/PBS. In this case, however,

the applicant went out of its way to delay the proceedings

and made it known repeatedly that it was in no hurry to reach

a conclusion to the administrative process. The appellate

court put it this way:

... Steakhouse’s casual pursuit of its permit gives

its cries of irreparable injury a tinny pitch.

Steakhouse delayed the permitting process on two

separate occasions. First, Steakhouse ...

requested that the BOA delay its review until

January 13, 1997. Second, on February 3, 1997,

Steakhouse’s counsel heard the BOA’s Sessions

Reporter, Donna Hester, dictating the record from

the January 13 meéting — a prerequisite to any

judicial appeal of the BOA’s permit decision.

Rather than requesting an expedited effort, or even

ensuring that the process was proceeding along

its normal schedule, counsel told Hester “there

was no rush” and instructed her to take her time.

It seems curious to hear Steakhouse now complain

about the loss of its asserted rights for “even [a]

minimal period[ } of time.” Elrod, 427 U.S. at 373,

96 S.Ct. 2673 (plurality opinion).

Steakhouse, 166 F.3d at 637-638. Clearly the Steakhouse

decision reflects disdain for the behavior of the individual

litigant far more than it indicates any intention to establish

new law contrary to that of other circuits.

The intensely factual nature of the inquiry in Steakhouse

is also reflected in the legal analysis of the appellate court

— or rather the iack of that analysis. It is interesting to note

that Steakhouse does not attempt to distinguish any of the

15

score of cases which have declared zoning exceptions to be

unconstitutional prior restraints. See, e.g., 3570 East Foothill

Blvd., supra; 754 Orange Avenue, supra; Bukaka, Inc. v.

County of Benton, supra; Franken Equities, supra; Dia v.

City of Toledo, supra. None of these cases is even cited in

the opinion. The Court also made no real attempt to

distinguish 1/126 Baltimore Boulevard, a recent Fourth

Circuit case which struck a similar special exception

ordinance as a prior restraint against adult speech. 58 F.3d

at 992-993.?

Instead, the Fourth Circuit expressed its reluctance to

allow a preliminary injunction because of the risk that the

Plaintiff would obtain a vested right under North Carolina

law, irrespective of what the Court ultimately ruled on the

merits. Steakhouse, 166 F.3d at 638. Far from being a call

for rebellion against those Circuits which have agreed with

Lady J. Lingerie, the Steakhouse case should be viewed as

an aberration arising from a unique set of facts. Surely

Steakhouse presents little reason for this Court to take up an

issue which has long been settled both by precedent both in

this Court and in numerous lower court decisions across the

land.

2. Interestingly, the Petitioner includes the Fourth Circuit

among those jurisdictions which are agreement with the Lady J.

Lingerie analysis of prior restraints in a zoning context. (Petition at

14 n.9). Thus, in Point I of its Petition, the City argues that there is

no conflict between the Fourth and Eleventh Circuits, while Point

Il argues just the opposite with respect to the Fourth Circuit's

decision in Steakhouse. Compare, Petition at 14 and 22-27.

16

CONCLUSION

The Eleventh Circuit properly determined that the

Jacksonville zoning exception. ordinance was an

unconstitutional prior restraint as applied against adult

businesses because discretionary governmental approval was

required before such businesses could open in nearly every

location in the City. This opinion does not conflict with

decisions of the Second Circuit or any other Circuit. Neither

does the decision below conflict with Steakhouse, Inc. v. City

of Raleigh, 166 F.3d 634 (4th Cir. 1999). Steakhouse was an

interlocutory appeal from a unique set of facts which has

little application within the Fourth Circuit much less to the

nation as a whole.

There are no public policy concerns which would warrant

the attention of this Court. The City is free to apply its

existing zoning code to any business which does not involve

First Amendment concerns and is equally free to zone adult

businesses into appropriate zones as of right. As the Eleventh

Circuit noted below, “[m]ost zoning ordinances easily meet

these standards, but this ordinance does not.” Lady J.

Lingerie, 176 F.3d at 1361. The fact that Jacksonville was

incapable of passing a constitutional zoning ordinance in this

particular instance has no impact beyond the immediate

litigants.

* Counsel of Record

17

Respectfully submitted,

Gary S. EDINGER*

305 N.E. Ist Street

Gainesville, Florida 32601

(352) 338-4440

RICHARD L. WILSON

3610 Dubsdread Circle

Orlando, Florida 32804-3052

(407) 649-9225

Attorneys for Respondents