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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999

## Text

Gunrem$ USUI, Usk |
(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1978%3A2. Public record. Not legal advice.