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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11736
Non-Argument Calendar
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D.C. Docket No. 3:15-cv-01521-MMH-PDB
LAVERANUES COLES,
an Individual,
TROUBLE LIVIN LIFE LLC,
a Florida Limited Liability Company,
Plaintiffs-Appellants,
versus
CITY OF JACKSONVILLE,
a Florida Municipal corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 24, 2019)
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Before ED CARNES, Chief Judge, and JILL PRYOR, and ANDERSON, Circuit
Judges.
PER CURIAM:
Laveranues Coles filed suit against the City of Jacksonville under 42 U.S.C.
§ 1983 claiming that the City’s zoning decisions regarding his business violated his
First and Fourteenth Amendment rights. The district court granted the City’s
motion for summary judgment and dismissed Coles’ claims without prejudice for
lack of subject matter jurisdiction because it found that Coles’ failure to complete
the City’s zoning appeals process rendered his complaint unripe. 1 Coles now
appeals.
I.
Coles leased a property in Jacksonville in 2013 with the intent of opening a
“bikini bar” that would feature non-nude dancing and sell alcohol. Coles spent
hundreds of thousands of dollars renovating the property and purchasing liquor
licenses in preparation for opening the bikini bar. In early 2014 he opened the
property as a restaurant while he attempted to obtain three zoning exceptions. At
the time he rented the property, Coles was permitted to operate a dancing
entertainment establishment as of right without selling alcohol, but he needed a
1
The district court’s order simultaneously granted the City’s motion for summary
judgment and dismissed the case without prejudice. Because the ground for summary judgment
was identical to the basis for dismissal — the lack of subject matter jurisdiction — the two are
not inconsistent.
2
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zoning exception in order to sell alcohol. He also needed an exception to use the
entire square footage of the property without providing additional parking. Finally
he needed a waiver of local minimum distance requirements because of the
location’s proximity to two nearby churches.
To obtain a zoning exception, city law requires applicants to submit an
application to the City Planning and Development Department. The Department
then issues an advisory report to the City Planning Commission. The Commission
must then hold a public hearing and render a decision. An applicant can appeal an
adverse decision to the City Council through its Land Use Zoning Committee
(LUZ Committee).
Coles filed applications for these three exceptions in December 2013 and
January 2014. The Development Department issued a favorable report, but the
Planning Commission rejected Coles’ applications after hearing from two
community members who expressed concern about parking and the effect the
bikini bar would have on development in the neighborhood. Coles did not appeal
this decision to the LUZ Committee, but instead filed new applications the
following year.
In August 2015 the Planning Commission held another hearing. The
Development Department again spoke favorably about the applications while
community members voiced the same concerns. The Commission voted to defer
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the matter until their next meeting two weeks later and instructed Coles to work
with the Development Department to address parking concerns in the interim.
At the next Planning Commission meeting Coles presented parking
agreements he had made with neighboring businesses. But the Commission
continued to have concerns about parking and the increased number of adult
businesses in the area and rejected Coles’ applications. This time Coles appealed
the decision to the LUZ Committee. The Committee found that Coles needed to
apply for an additional exception because the City had recently enacted new
distance requirements between bikini bars and other adult entertainment
establishments. The Committee remanded the matter back to the Planning
Commission and gave Coles sixty days to file an application for an additional
exception.
Coles took no further local action, but instead filed a complaint in federal
court. Coles brought an as-applied challenge to the Zoning Code, contending that
the denial of his requested exceptions violated his substantive due process rights
because it was based on discrimination against his planned speech. The district
court dismissed the case without prejudice for lack of subject-matter jurisdiction
after determining the complaint was unripe because Coles had not obtained a final
decision from the City. Coles filed a motion for reconsideration, which the district
court denied. He now appeals.
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II.
We review de novo a district court’s decision to grant summary judgment,
drawing “all reasonable inferences in the light most favorable to the non-moving
party.” Owen v. I.C. Sys., Inc.,
629 F.3d 1263, 1270 (11th Cir. 2011). Summary
judgment may be granted only if “there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law.” Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 247,
106 S. Ct. 2505, 2509–10 (1986)
(quotation marks omitted). A genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.”
Id. at 248, 106 S. Ct. at 2510. “The ripeness of a claim is a legal question
that we review de novo.” Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,
727 F.3d 1349, 1356 (11th Cir. 2013).
III.
Coles first challenges the district court’s determination that it did not have
subject-matter jurisdiction over his complaint because his claims were unripe. 2 We
2
In its reply brief the City asserts that we do not have appellate jurisdiction to consider
this issue because the district court’s dismissal without prejudice was not a final order. It was.
The City argues that there was no final judgment because the district court dismissed Coles’
complaint without prejudice and he is free to file another complaint after exhausting his
administrative remedies. That a dismissal is without prejudice does not render it non-final and
unappealable. See Hertz Corp. v. Alamo Rent-A-Car,
16 F.3d 1126, 1133 n.14 (11th Cir. 1994)
(quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2376
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have held that when a plaintiff brings an as-applied due process challenge to a
municipality’s zoning decision, the claim “is not ripe until the decision denying
commercial zoning has been finally made and applied to the property.” Eide v.
Sarasota County.,
908 F.2d 716, 726 (11th Cir. 1990). A final zoning decision by
the municipality is a prerequisite for a federal suit because “zoning is a delicate
area where a [municipality]’s power should not be usurped without giving the
[municipality] an opportunity to consider concrete facts on the merits prior to a
court suit.”
Id. at 726 n.17. When a municipality’s “variance process explicitly
provides for an ‘appeal’ to the authoritative local decisionmaker . . . the appeal
must be fully pursued before any definitive ‘final’ decision occurs.” Reahard v.
Lee County.,
30 F.3d 1412, 1416 n.10 (11th Cir. 1994).
Here it is plain that a final decision was never reached because Coles
abandoned the process in favor of this federal suit after the LUZ Committee
remanded his applications back to the Planning Commission. City law is clear that
Coles had other avenues for seeking relief, and it is undisputed that he did not
pursue them. See
id.
Coles’ argues that his claims are ripe because the City’s non-final decisions
denying his applications were not supported by substantial evidence and were
(1971)) (“A dismissal is a final order, and appealable as such, whether it is with or without
prejudice.”).
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instead motivated solely by bias toward the type of speech his bikini bar would
feature. Even if these claims were supported by the record, they are beside the
point. We cannot determine whether the City’s treatment of Coles’ applications
violated his constitutional rights because the City never had an opportunity to
make a final decision. Regardless of Coles’ perception that the local zoning
process was biased and dilatory, he was obligated to complete that process before
bringing a federal suit.
IV.
Coles next argues that even if his complaint is unripe he is entitled to an
exception under the futility doctrine. “An exception to the final decision
requirement exists where it would be futile for the plaintiff to pursue a final
decision.” Strickland v. Alderman,
74 F.3d 260, 265 (11th Cir. 1996). When
discussing futility in other contexts we have noted that “[t]he burden of
demonstrating futility is on the party seeking [an] exemption.” M.T.V. v. Dekalb
Cty. Sch. Dist.,
446 F.3d 1153, 1159 (11th Cir. 2006) (discussing futility in the
context of a federal disability suit when the plaintiffs had failed to exhaust
administrative remedies).
We are not convinced that it would have been futile for Coles to complete all
necessary exemption applications and obtain a final decision from the City. Coles’
primary argument seems to be that the LUZ Committee was certain to ultimately
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reject his applications because the Planning Commission had rejected his
applications in the past. But the LUZ Committee never had an opportunity to
consider a complete application from Coles and the intermediate decisions of the
Planning Commission do not show with certainty that the LUZ Committee would
have rendered a final decision against Coles.
The only evidence Coles presents that his application would have ultimately
been rejected other than the prior decisions of the Planning Commission is the
report of an expert witness, Paul Harden. Harden is an attorney and zoning
lobbyist who claims to have extensive experience before the City’s zoning
authorities. In his report Harden wrote that:
Based on my experience and the Planning Commissions prior
decisions, any attempt to seek additional exceptions or waivers from
the Planning Commission after the matter was remanded by the LUZ
Appeal Board would have been futile. And given the history any
further appeal after remand would not likely have resulted in a
favorable decision for the Plaintiffs.
As the district court noted, this testimony is highly speculative and does not
address “the undisputed fact that Coles had to address the distance requirement
imposed by the Code in order to submit a complete application.” The City’s final
decisionmaker never had a single opportunity to review such a complete
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application, and the adverse non-final decisions of an intermediate body are
insufficient to establish that it would have been futile to provide one. 3
AFFIRMED.
3
Coles also challenges the district court’s order denying his motion for reconsideration,
which we review only for abuse of discretion. Corwin v. Walt Disney World Co.,
475 F.3d
1239, 1254 (11th Cir. 2007). In doing so he raises the same issues regarding the ripeness of his
claims that we have rejected under de novo review, and also seeks to inappropriately relitigate
old matters disposed of in the district court’s order granting summary judgment. See Arthur v.
King,
500 F.3d 1335, 1343 (11th Cir. 2007) (noting that a motion for reconsideration cannot be
used “to relitigate old matters, raise argument or present evidence that could have been raised
prior to the entry of judgment”) (quotation marks omitted). The only new issue Coles presents is
whether the district court abused its discretion in determining that he improperly raised
procedural due process claims for the first time in his reply to the City’s motion for summary
judgment. It did not.
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