JSLG, Incorporated v. City of Waco , 504 F. App'x 312 ( 2012 )

Case: 11-51041 Document: 00512094022 Page: 1 Date Filed: 12/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 26, 2012
No. 11-51041 Lyle W. Cayce
Clerk
JSLG, INCORPORATED,
Plaintiff-Appellant
v.
CITY OF WACO; RANDY CHILDERS, Building Official
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:11-CV-131
Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The Plaintiff-Appellant JSLG, Inc. (“JSLG”) brought suit against the
Defendants-Appellees, the City of Waco (“the City”) and Randy Childers,1
Building Official for the City, raising constitutional challenges to an ordinance
governing sexually oriented businesses. The district court granted summary
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
For ease of reference, the Defendants-Appellees will be referred to simply as “the
City.”
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judgment for the City and denied JSLG’s request for a preliminary injunction.
Finding no reversible error, we affirm the district court’s judgment.
I. FACTUAL AND PROCEDURAL HISTORY
JSLG was a Texas corporation, and it owned a nightclub called Sonny’s
BYOB (“Sonny’s”) that featured nude dancing in Waco, Texas. The City’s
ordinance allowed nude dancing only if a corporation held a sexually oriented
business (“SOB”) license. JSLG obtained this license in 2007, and the ordinance
requires the license to be renewed annually. John Skruck ran the nightclub;
however, the paperwork filed with the City lists his daughter Mary Skruck, who
resides outside of Texas, as the owner.
In 2010, the Waco police received complaints stating that prostitution was
occurring at Sonny’s. The Waco police thereafter conducted several undercover
investigations at the nightclub. As a result, three of the dancers were arrested
for prostitution. After each arrest, the City sent a nuisance notification letter
to JSLG. Two of the dancers were convicted of the offense of prostitution. John
Skruck provided bail and legal fees for at least one of the dancers.
Additionally, the City Fire Marshall (“Marshall”) conducted an inspection
of the nightclub. During this inspection, the Marshall discovered a room with
a door that locked from the inside. It was known as the “High Roller Room.”
The Marshall asked that the door be unlocked. The manager on duty that night
claimed he could not find the right key, making a fair amount of noise
attempting to open the door with various keys. After some delay, a dancer and
a male patron exited this room. The Marshall told the manager that the door
should not have a lock and that a camera should be installed in the room.
During a routine follow up inspection, the Marshall again found the High Roller
Room door locked. After gaining entry to the room, the Marshall observed a
nude dancer and a male patron, who was not wearing pants and whose genitals
were exposed.
2
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In December 2010, JSLG submitted its annual application for renewal of
its SOB license. On April 18, 2011, the City sent notice to JSLG that the license
was revoked upon receipt of the notice. The City cited four sections of the Code
of Ordinances as grounds for the one-year revocation.2 JSLG appealed to the city
council. After hearing from both sides, the council voted to uphold the
revocation.
Thereafter, JSLG filed suit in Texas state court and obtained a temporary
restraining order (“TRO”). The City removed the case to federal district court,
and JSLG moved again for a TRO and a preliminary injunction. The district
court denied the TRO and held a hearing on the motion for the preliminary
injunction. Thereafter, the City filed a motion for summary judgment. On
September 26, 2011, the district court denied JSLG’s motion for preliminary
injunction and granted the City’s motion for summary judgment. JSLG now
appeals.3
II. ANALYSIS
A. Standard of Review
2
The violations were of the following sections:
(1) A licensee gave false or misleading information in the material submitted
during the application or license renewal process; . . . (3) A licensee or an
employee has knowingly allowed prostitution on the premises; . . . (6) On two
or more occasions within a 12-month period, a person or persons committed an
offense, occurring in or on the licensed premises, of a crime listed in section
20-36(a)(8)a, for which a conviction has been obtained; and the person or
persons were employees of the sexually oriented business at the time the
offenses were committed; (7) A licensee or an employee has knowingly allowed
any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual
contact to occur in or on the licensed premises[.]
§ 20-40(b)(1), (3), (6), (7) of Waco’s Code of Ordinances (“Sexually Oriented
Businesses”).
3
Subsequent to the filing of the instant appeal, the Secretary of State forfeited JSLG’s
corporate privileges based on JSLG’s failure to pay taxes.
3
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JSLG argues that the district court erred in granting the City’s motion for
summary judgment. This Court reviews a district court’s ruling on summary
judgment de novo, applying the same standards as the district court. See, e.g.,
Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary
judgment is proper if the record reflects “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
B. Mootness
1. Injunctive Relief
The City contends that the appeal is moot and should be dismissed for lack
of appellate jurisdiction. The City points out that JSLG brought suit to enjoin
the revocation of its SOB license. However, the City has since revoked the
license, and the one-year revocation period has expired. On April 18, 2011, the
City sent a letter notifying JSLG that its SOB license would be revoked for one
year from the date of receipt of the letter. Additionally, the letter provided that
upon appeal the revocation shall be automatically stayed pending the city
council’s final decision. JSLG took an appeal, which stayed the revocation. The
City denied JSLG’s appeal. On May 12, in state court, JSLG obtained a TRO
against the City. On May 23, the City removed the case to federal district court.
On May 26, JSLG moved for a continuing TRO and preliminary injunction. On
May 27, the court held a hearing on the request for a TRO and denied it that
day. On June 3, the district court held a hearing on the motion for a preliminary
injunction. On September 26, the court denied JSLG’s motion for preliminary
injunction. Thus, the revocation began at the latest on May 27, 2011, and was
set to last for a period of one year. This Court heard oral argument on
September 5, 2012. Clearly, the one-year revocation period has expired. A
“request for injunctive relief generally becomes moot upon the happening of the
event sought to be enjoined.” Harris v. City of Houston, 151 F.3d 186, 189 (5th
4
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Cir. 1998). “An appeal from a denial of a motion for preliminary injunction is
rendered moot when the act sought to be enjoined has occurred.” Seafarers
Intern. Union of N. Am. v. Nat’l Marine Servs., 820 F.2d 148, 151 (5th Cir. 1987),
abrogated on other grounds by Litton Fin. Printing Div. v. Nat’l Labor Relations
Bd., 501 U.S. 190, 198 (1991). This Court has explained that “once the action
that the plaintiff sought to have enjoined has occurred, the case is mooted
because no order of this court could affect the parties’ rights with respect to the
injunction we are called upon to review.” Id. (internal quotation marks and
citation omitted). Accordingly, because the one-year revocation period has
expired, the request to enjoin is moot.
Nonetheless, JSLG states that the revocation leaves an unfavorable mark
if it were to apply for an SOB license in the future. We note that, based on
JSLG’s failure to pay taxes, the Secretary of State forfeited JSLG’s corporate
privileges. JSLG is now a defunct corporation and cannot file a renewal
application for an SOB license unless it pays the taxes it owes. Meanwhile,
another corporation has since filed an application for an SOB license and now
operates the business at the same location. At the time of oral argument, JSLG
had not paid its back taxes to revive its corporate privileges so that it could file
another application for an SOB license. Moreover, since the argument the Court
has received no indication that JSLG has taken any steps to revive its privileges.
Accordingly, JSLG has failed to prove “continuing collateral consequences”
stemming from the expired revocation period that would constitute a “concrete
and continuing injury” under Article III. Spencer v. Kemna, 523 U.S. 1, 7-8
(1998) (internal quotation marks omitted). Indeed, it is “purely a matter of
speculation” whether JSLG will apply for an SOB license in the future. Id. at
16. Thus, because there is no injunctive relief we can grant JSLG, any claim for
injunctive relief is moot. We therefore DISMISS as MOOT JSLG’s claim for
injunctive relief.
5
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2. Declaratory Relief
a. § 20-40(b)(3), (6), and (7)
JSLG mounts a facial challenge against the City’s SOB ordinance, seeking
to have it declared unconstitutional. JSLG contends that the district court erred
in holding that the ordinance passes constitutional muster under O’Brien4
because three of the ordinance’s provisions allow revocation of a license based
solely on the knowledge of an employee without requiring knowledge on the part
of the licensee.5 The three provisions state that the building official shall revoke
an SOB license if it is determined that:
(3) A licensee or an employee has knowingly allowed prostitution on
the premises; . . . (6) On two or more occasions within a 12-month
period, a person or persons committed an offense, occurring in or on
the licensed premises, of a crime listed in section 20-36(a)(8)a, for
which a conviction has been obtained; and the person or persons
were employees of the sexually oriented business at the time the
offenses were committed; or (7) A licensee or an employee has
knowingly allowed any act of sexual intercourse, sodomy, oral
copulation, masturbation or sexual contact to occur in or on the
licensed premises[.]
§ 20-40(b)(3), (6), (7).
However, prior to reaching the merits of the constitutional challenge, we
must first address the City’s contention that JSLG’s claim for declaratory relief
has become moot. As previously noted, the Secretary of State forfeited JSLG’s
corporate privileges based on JSLG’s failure to pay taxes, rendering JSLG a
defunct corporation, which cannot apply for an SOB license. Applying Supreme
Court precedent, we conclude that the claim for declaratory relief is also moot.
4
United States v. O’Brien, 391 U.S. 367 (1968).
5
Cf. Chulchian v. City of Indianapolis, 633 F.2d 27, 32 (7th Cir. 1980) (rejecting a
constitutional challenge because the ordinance, as construed by the City and the Court,
“requires that a licensee knowingly permit illegal conduct,” and therefore. “the ordinance does
not penalize a licensee for an isolated incident over which he has no control”).
6
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In City of Erie v. Pap’s A.M., the city council for the City of Erie (“Erie”)
enacted an ordinance making it a summary offense to appear nude in public.
529 U.S. 277, 283 (2000). Pap’s, a Pennsylvania corporation, operated a
business that featured nude dancing. Id. at 284. Pap’s filed suit, requesting
declaratory relief and an injunction against the enforcement of the ordinance.
Id. Subsequently, the Pennsylvania Supreme Court held that the ordinance
unconstitutionally burdened the expressive conduct of nude dancing. Id. at 286.
The Supreme Court granted Erie’s petition for certiorari, and Pap’s moved to
dismiss the case as moot because it was no longer operating a nude dancing
business. Id. at 287. Pap’s argued that the case was moot because the Court’s
ruling would have no effect upon Pap’s as it was no longer operating a nude
dancing establishment. Id. The Supreme Court explained that merely closing
the business was “not sufficient to render this case moot” because “Pap’s is still
incorporated under Pennsylvania law, and it could again decide to operate a
nude dancing establishment.” Id. Additionally, the Court opined that the case
was not an ordinary “voluntary cessation case” because it was the prevailing
party that voluntarily ceased its conduct and then sought to have the case
dismissed as moot. Id. at 288. Further, “Pap’s still has a concrete stake in the
outcome of this case because, to the extent Pap’s has an interest in resuming
operations, it has an interest in preserving the judgment.” Id.6 Finally, the
Court recognized that its “interest in preventing litigants from attempting to
manipulate the Court’s jurisdiction to insulate a favorable decision from review
further counsels against a finding of mootness.” Id. Thus, it rejected Pap’s
argument and held that the case was not moot.
6
The Court also recognized that Erie had an “ongoing injury because it [was] barred
from enforcing the public nudity provisions of its ordinance.” Id. If the Court held that the
ordinance was constitutional, Erie could “enforce it, and the availability of such relief is
sufficient to prevent the case from being moot.” Id.7
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Unlike the business in Erie, in the instant case, JSLG is no longer
incorporated under state law due to its failure to pay taxes. Further, here,
unlike Erie, it is not the party that closed the business now seeking to have the
case declared moot.
In City News & Novelty, Inc. v. City of Waukesha, the Supreme Court once
again addressed the question of mootness when an adult bookstore closed its
business. 531 U.S. 278 (2001). In that case, City News & Novelty, Inc. (“City
News”) operated an adult bookstore that sold sexually explicit material. Id. at
281. The City of Waukesha (“Waukesha”) required sellers of such material to
maintain an adult business license. Id. Based on its finding that City News had
violated an ordinance, the city council denied City News’s application for a
renewal of the license. Id. at 281-82. City News brought suit, and the state
courts rejected the claim that the denial of the license was unconstitutional. Id.
at 282. After filing its petition for certiorari with the Supreme Court, City News
provided notice that it planned to withdraw its renewal application and close its
business if Waukesha granted a license to its competitor. Id. at 282-83.
Waukesha granted an adult business license to the competitor of City News, and
thereafter City News ceased its operations and “no longer [sought] to renew its
license.” Id. at 283.
Based on City News’s announcement that it did not intend to renew its
license, Waukesha argued that the case was moot. Id. In response, City News
stated that “it ‘has never promised not to apply for a license’ in the future,” and
that the Supreme Court’s analysis in Erie demonstrated that this case was not
moot. Id. The Supreme Court rejected City News’s argument that the claim
was not moot and distinguished Erie as follows:
In our view, Erie differs critically from this case. In Erie, we
similarly granted a petition to review a state-court judgment
addressing an adult business’ First Amendment challenge to a city
ordinance. We concluded that the controversy persisted, even
8
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though the adult business had shut down. We reached that
conclusion, it is true, in part because the business “could again
decide to operate.” That speculation standing alone, however, did
not shield the case from a mootness determination. Another factor
figured prominently. The nude dancing entrepreneur in Erie sought
“to have the case declared moot” after the business had “prevailed
below,” obtaining a judgment that invalidated Erie’s ordinance.
Had we accepted the entrepreneur’s plea, then consistent with our
practice when a case becomes moot on review from a state court, we
would have dismissed the petition, leaving intact the judgment
below. Thus, had we declared Erie moot, the defendant
municipality would have been saddled with an “ongoing injury,” i.e.,
the judgment striking its law. And the plaintiff arguably would have
prevailed in an “attemp[t] to manipulate the Court’s jurisdiction to
insulate a favorable decision from review.”
Id. at 283-84 (internal citations and quotation marks omitted). Unlike the adult
business in Erie, City News “left the fray as a loser, not a winner.” Id. at 284.
Thus, dismissing the case as moot “does not keep Waukesha under the weight
of an adverse judgment, or deprive Waukesha of its victory in state court.” Id.Further, dismissing the case as moot does not “reward an arguable
manipulation of our jurisdiction” because City News “opposes a declaration of
mootness.” Id.Nonetheless, City News argued that it was suffering an ongoing injury
because the ordinance barred it from operating as an adult business for several
more years. Id. The Supreme Court was not persuaded that City News had
shown an ongoing injury because “a live controversy is not maintained by
speculation that City News might be temporarily disabled from reentering a
business that City News has left and currently asserts no plan to reenter.” Id.
at 285. Thus, the Supreme Court dismissed the case as moot.
Relying on the above-quoted language from the Supreme Court’s opinion
in Waukesha, the D.C. Circuit interpreted the opinion as “strongly support[ing]
the principle that a case on appeal normally is rendered moot when the
9
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appellant closes its business and, as a result, no longer has a cognizable interest
in the outcome of the dispute.” Munsell v. Dep’t of Agric., 509 F.3d 572, 582
(D.C. Cir. 2007). The D.C. Circuit further opined that the exception in Erie
“applies only when the party who prevailed below attempts to ‘manipulate the
Court’s jurisdiction’ to avoid having its favorable judgment overturned on
appeal.” (quoting Waukesha, 531 U.S. at 284).
We find persuasive the D.C. Circuit’s interpretation of Erie and Waukesha
and apply the principle to the case at bar. Here, because JSLG closed its
business and became a defunct corporation unable to apply for an SOB license,
it no longer has a cognizable interest in declaring the City of Waco’s SOB
ordinance facially unconstitutional.7 In other words, JSLG is not currently
subject to regulation under the SOB ordinance. Accordingly, JSLG’s claim—that
the ordinance is facially unconstitutional because § 20-40(b)(3), (6) and (7) allow
for revocation of a license based solely on the knowledge of an employee—has
become moot during the pendency of this appeal. We therefore lack appellate
jurisdiction and DISMISS this claim for declaratory relief as moot.
b. § 20-40)(b)(1)
JSLG next contends that § 20-40(b)(1) is unconstitutionally vague or
overbroad on its face because it does not define how information that is “false
or misleading” is material to the application process. As set forth in detail
above, JSLG is not currently subject to regulation under the challenged
ordinance and thus no longer has a cognizable interest in declaring the
ordinance facially unconstitutional. Thus, this claim for declaratory relief
7
Clearly, the exception in Erie does not apply because the party who prevailed below,
the City, did not cause the case to become moot. Although the City revoked the SOB license,
it was JSLG that closed the business, rendering this claim moot.
10
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likewise became moot. We therefore lack appellate jurisdiction and DISMISS
this claim for declaratory relief as MOOT.8
3. Damages
Nonetheless, in JSLG’s prayer for relief in the complaint, in addition to its
request for equitable relief, JSLG expressly (albeit briefly) requested damages.9
JSLG contends that it incurred damages as a result of the City’s
unconstitutional revocation of its SOB license. Although the revocation of the
license did not close the nightclub’s doors, its effect was to prohibit nude
dancing. Because of the revocation, the City required the dancers to wear “G-
Strings and pasties.” JSLG contends that the prohibition of nude dancing
caused its customers to stop patronizing its business, and thus the loss of its
revenue constitutes monetary damages. This Court has explained that although
time may have rendered moot an appellant’s request for injunctive relief, the
claim for actual monetary damages incurred as a result of an alleged
constitutional violation remains a live claim. Henschen v. City of Houston, Tex.,
959 F.2d 584, 587-88 (5th Cir. 1992); Opulent Life Church v. City of Holly, __
8
We note that, even if the facial challenge to § 20-40(b)(1) had not become moot, JSLG
would not be entitled to relief. Section 20-40(b)(1) provides that an SOB license shall be
revoked if: “[a] licensee gave false or misleading information in the material submitted during
the application or license renewal process.” JSLG argues that whether information is
“misleading” cannot be objectively verified and thus the ordinance allows the city official to
subjectively apply the ordinance. This Court has previously held that an ordinance allowing
a city official to revoke an SOB license if the licensee provided “false or misleading
information” does not give the official impermissibly broad discretion. FW/PBS, Inc. v. City
of Dallas, 837 F.2d 1298, 1305-06 (5th Cir. 1988), reversed on other grounds, 493 U.S. 215(1990). We explained that the ordinance “relies on standards that are susceptible of objective
measurement and thus consistent with the first amendment.” Id. at 1306 (citation and
internal quotation marks omitted). Accordingly, even if this claim had not become moot, our
precedent would preclude JSLG’s claim that § 20-40(b)(1) is unconstitutionally vague or
overbroad on its face.
9
JSLG requested to “recover from Defendants, jointly and severally, all of its actual
damages, additional damages, exemplary damages, pre-judgment and post-judgment interest
as allowed by law, attorney’s fees, costs of court, declaratory judgments, and such other and
further relief to which it may show itself justly entitled.”
11
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F.3d __, 2012 WL 4458234, at *4 (5th Cir. 2012) (explaining that “[a] plaintiff
seeking both injunctive relief and money damages can continue to pursue the
case, even after the request for an equitable remedy is rendered moot”) (quoting
Erwin Chemerinsky, Federal Jurisdiction § 2.5.2. (6th ed. 2012)). Thus,
although JSLG’s claim for equitable relief is now moot, we must address its
claims for damages.
We note that the claim for the amount of damages is rather limited. At
oral argument, counsel explained that JSLG’s claim for damages is based on the
loss of revenue stemming from the reduction in the amount of clients patronizing
Sonny’s because the dancers had to wear G-strings and pasties and were not
allowed to dance completely nude after the license revocation. Accordingly, the
damages, if any, would only consist of the loss of revenue from the dancers not
being allowed to dance completely nude during the revocation period.
C. JSLG’s Capacity to Bring Suit
Subsequent to oral argument before this Court, the panel requested
briefing with respect to whether JSLG, a defunct Texas corporation, had the
legal right to maintain this appeal. We have reviewed the briefing and are
persuaded that our precedent constrains us to hold that JSLG does have the
capacity to maintain this appeal.
It is undisputed that by failing to pay its taxes JSLG forfeited its corporate
privileges under Texas law. However, JSLG had filed the instant lawsuit prior
to forfeiting its privileges. This Court has explained that Texas law “bars
corporations from filing suit only after they have forfeited their right to do
business.” Tex. Clinical Labs, Inc. v. Leavitt, 535 F.3d 397, 403 (5th Cir. 2008)
(emphasis in opinion). In Leavitt, as in the instant case, the corporation filed
suit prior to forfeiting its corporate privileges. Id. at 404. Applying Texas law,
this Court held that because the corporation had capacity to bring suit at the
time the action began, the corporation “retained capacity and will continue to do
12
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so until the suit’s conclusion.” Id.10 Relying on certain language in § 171.252 of
the Texas Tax Code,11 the City contends that JSLG does not have the capacity
to maintain this suit. In Leavitt, however, this Court expressly recognized that
particular language and rejected the claim that it deprived the corporation of the
capacity to maintain its lawsuit. Id. at 403-04. Accordingly, applying the
holding in Leavitt, because JSLG had the capacity at the time it filed suit
against the City, it retains the capacity to maintain this appeal until it is
resolved.12
D. As-Applied Challenge to § 20-40(b)(1)
JSLG also raises an as-applied challenge to the City’s finding that JSLG
violated § 20-40(b)(1), which, as previously set forth, provides that a license
shall be revoked if a “licensee gave false or misleading information in the
material submitted during the application or license renewal process.” In its
letter of revocation, the City quoted from § 20-34(a), which provides that an
application for an SOB license:
must be accompanied by a sketch or diagram showing the
configuration of the premises, including a statement of the total
floor space occupied by the total business and the total floor space
occupied by the sexually oriented business portion of the business.
The sketch need not be professionally prepared, but it must show
the interior dimensions of the business to an accuracy of plus or
minus six inches.
10
At least one intermediate Texas appellate court has expressly agreed with this
Court’s interpretation of Texas law in Leavitt. See Mossler v. Nouri, No. 03-08-00476-CV, 2010
WL 2133940, at *6 (Tex. App.—Austin, May 27, 2010, pet. denied) (unpublished).
11
The City relies on the following language: “If the corporate privileges of a
corporation are forfeited under this subchapter . . . the corporation shall be denied the right
to sue or defend in a court of this state . . . .” Tex. Tax Code Ann. § 171.252(1).
12
The City concedes that if JSLG retains the capacity to maintain this suit, it has the
right to be represented by counsel.
13
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The revocation letter further provided that the “sketch or diagram resubmitted
by Sonny’s BYOB during the 2011 application renewal process is false and
misleading because it omits significant changes to the premises. . . . Some of
those changes include the addition of two private ‘High Roller’ rooms, a new DJ
booth, and the elimination of a storage room.”
With respect to the application for renewal that is at issue, JSLG does not
deny that it failed to submit an updated diagram of the club reflecting the
changes to the interior configuration of the building. JSLG does not dispute that
the requirement to maintain an accurate diagram of the building is related to
the City’s legitimate interest in safety, fire and rescue concerns. Instead, JSLG’s
entire argument is that, although § 20-34(a) requires that an initial application
for the SOB license must have a diagram of the building, the Code does not
expressly require the submission of such a diagram during the annual renewal
process. Section 20-37(a) provides that an SOB license expires every year on
December 31st. It further provides that a “license may be renewed by
submission to the building official of an application on the form prescribed by
such official and payment of a nonrefundable renewal processing fee of $25.00
at least 30 days in advance of the expiration date.” § 20-37(a). It also provides
that a “renewal application shall be reviewed in accordance with the same
standards and requirements for an original license application, as set out in
section 20-36.” Id. Thus, although § 20-37(a) does not expressly require the
submission of an updated diagram, it does state that the renewal application will
be reviewed under the same requirements as an original license application
under § 20-36. Section 20-36(a)(3) provides that a license will not issue if an
“applicant has failed to provide information reasonably necessary for issuance
of the license or has falsely answered a question or request for information on
the application form.” Although it is not clear, it is arguably implicit that a
current diagram of the building that houses the SOB is necessary information
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for renewal of the license in that a current diagram was necessary for the initial
issuance of the license. Put another way, by expressly stating that a renewal
application will be reviewed under the same standards and requirements as the
initial application, the renewal provision arguably could be read as
encompassing a requirement that the application for renewal should be
accompanied by a current diagram of the building.
Moreover, even if the written renewal provision does not implicitly require
a current diagram, as a matter of practice, the evidence shows that the parties
treated the renewal process as if there was such a requirement. In 2008, with
its renewal application, JSLG submitted an updated diagram, which displayed
how the building had been remodeled after a fire had occurred. Subsequently,
during the 2009 renewal application process, JSLG submitted a letter
representing that the building had not undergone any remodeling since the SOB
license had been last renewed. Under these circumstances, we reject JSLG’s
contention that the district court erred in ruling that the renewal process
required the submission of a current diagram of the building. More importantly,
JSLG has failed to show that the requirement was unconstitutionally applied to
it. Simply put, JSLG has not shown that the City’s revocation of JSLG’s SOB
license based on its failure to submit a current building diagram was
unconstitutional.
At oral argument, JSLG conceded that if only one provision of the
ordinance survives as a constitutional basis for the revocation of its license, its
claim for damages is foreclosed. Because we conclude that JSLG has not shown
that § 20-40(b)(1) was unconstitutionally applied as a basis for its license
revocation, it is not entitled to damages, and we need not reach any remaining
constitutional challenge.
III. CONCLUSION
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Case: 11-51041 Document: 00512094022 Page: 16 Date Filed: 12/26/2012
No. 11-51041
For the above reasons, we DISMISS for lack of appellate jurisdiction the
claims for injunctive and declaratory relief and AFFIRM the district court’s
judgment as to the claim for damages.
DISMISSED IN PART and AFFIRMED in part.
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