Boss Capital, Inc. v. City of Casselberry , 187 F.3d 1251 ( 1999 )

BOSS CAPITAL, INC., a Florida Corporation, Plaintiff-Appellant,
v.
CITY OF CASSELBERRY, a Florida Municipal Corporation, Defendant-Appellee.
No. 98-2802.
United States Court of Appeals,
Eleventh Circuit.
Sept. 3, 1999.
Appeal from the United States District Court for the Middle District of Florida.(No. 96-CV-463-ORL-22B),
Anne C. Conway, Judge.
Before DUBINA and HULL, Circuit Judges, and O'KELLEY*, Senior District Judge.
DUBINA, Circuit Judge:
Boss Capital, Inc. owns strip clubs. It wants to open a club in a building it leases in Casselberry,
Florida, but Casselberry's zoning ordinance prohibits it from operating at that location. In this appeal, Boss
Capital challenges the constitutionality of Casselberry's zoning ordinance. It also challenges the
constitutionality of the licensing provisions of Casselberry's adult entertainment ordinance. The district court
granted summary judgment for Casselberry on both of these claims. We conclude that the licensing
provisions are valid but that the validity of the zoning provision turns on a factual question the district court
left unresolved. We therefore affirm in part and remand this case to the district court with instructions to
reconsider the validity of the zoning provisions in light of this opinion.
I.
We address the zoning ordinance first. An adult entertainment establishment in Casselberry may
operate only in the C-G (Commercial-General) zoning district, but even within that zone, it may not operate
within 1000 feet of a church, a school, a public park or recreation area, another adult entertainment
establishment, or an area zoned for residential use. See Casselberry Code art. III, § 14-75(a) (reprinted in
*
Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of Georgia, sitting
by designation.
appendix). The ordinance grandfathers establishments in existence in Casselberry as of the ordinance's
effective date. See Casselberry Code art. III, § 14-76(a) (reprinted in appendix). All the parties agree that
if one of the existing establishments closes, a new adult entertainment establishment may operate in the same
location as a "nonconforming use" until the use "is removed or abandoned, or ceases for a continuous period
of more than 90 days." Casselberry Code part III, § 2-8.9 (reprinted in appendix).
Boss Capital leased a building in Casselberry with plans to open a strip club there. The building is
almost 1000 feet from residentially zoned property, but almost wasn't good enough. Casselberry refused to
permit Boss Capital to use the site for adult entertainment.
Appropriately, the district court turned to City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106
S.Ct. 925, 89 L.Ed.2d 29 (1986), to decide whether Casselberry's zoning ordinance is constitutional. That
case holds that municipalities may constitutionally apply zoning regulations to nude dancing establishments
as long as the regulations are narrowly tailored to serve a substantial government interest and leave open
reasonable alternative avenues of expression. See id. at 50-54, 106 S.Ct. 925. The dispute in this case is
whether Casselberry's zoning ordinance leaves open reasonable alternative avenues of expression.
Whether a zoning ordinance leaves open reasonable alternative avenues of expression depends on
how many sites are available. See Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th
Cir.1999). Availability, in turn, is a matter of economics. A site is available for our purposes as long as adult
entertainment establishments may vie for it in the real estate market "on an equal footing with other
prospective purchasers and lessees." City of Renton, 475 U.S. at 54, 106 S.Ct. 925.
The district court counted six available sites. Two other sites might be available, but factual
questions kept the court from deciding on summary judgment whether they are actually available. The district
court left those questions unresolved because it held that six sites are enough for a city of Casselberry's
population (24,100).
Boss Capital does not appear to dispute that six are enough. Rather, it argues that the six sites the
2
district court included should not count. Three of the sites are outside the city limits. Casselberry insists that
these sites should count because they are close to town (978 feet, 121 feet and 1.25 miles). The other three
sites the district court counted are in Casselberry, but they are grandfathered sites that do not comply with
the ordinance's distance requirements.
Whether a site is available is generally a factual question, but whether the sites outside Casselberry's
borders and the grandfathered sites count are legal questions which the district court resolved on summary
judgment and we review de novo. See Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th Cir.1995).
A.
We turn first to the grandfathered sites. The ordinance permits the current occupants to remain where
they are for as long as they want, but a new occupant may only operate an adult entertainment establishment
at one of the grandfathered sites if no more than 90 days has passed since the last adult entertainment
establishment operated there. See Casselberry Code art. 3, § 14-76(a); id. part III, § 2-8.9. The likelihood
that a shoe store or a grocery will move into one of the sites, or that one of the sites will sit vacant for more
than 90 days, is, if not great, at least significant. If any of those things happen, the site is no longer available.
Still, for now at least, the three (defeasibly) grandfathered sites are available. Boss Capital has every
right to outbid its competitors and buy or lease one of the grandfathered sites out from under one of the
current occupants. This convinces us to include the grandfathered sites in the "reasonable alternative avenues
of expression" equation.
B.
That leaves the three sites outside the city limits. Whether Casselberry may rely on those sites is an
issue this court has not yet faced, although the Supreme Court has faced it and left the question open. See
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76-77, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); id. at 78,
101 S.Ct. 2176 (Blackmun, J., concurring). We opt to leave it open as well because it is our custom not to
decide difficult constitutional questions unless we must. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
3
347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The district court noted that one or two
other sites might be available inside the city limits. If they are, we probably will not have to decide whether
the sites outside the city limits should count because four or five sites are most likely adequate for
Casselberry.
We do not hold, however, that three sites alone are inadequate for Casselberry. That question too
is a difficult one we might not need to decide. Instead, we remand this case to the district court for it to
resolve whether the sites inside the city limits are actually available. Then, if it must, it should consider
whether the available sites constitute reasonable alternative avenues of expression.
In deciding whether three or four or five sites constitute reasonable alternative avenues of expression,
the district court should consider more than just Casselberry's population. It should also consider
Casselberry's geographical size, the number of acres available to adult entertainment establishments as a
percentage of that size, where the sites are located, the number of adult entertainment establishments currently
in existence in Casselberry, and the number of adult entertainment establishments wanting to operate in
Casselberry. In short, whether a given number of sites constitutes reasonable alternative avenues of
expression is an issue to be resolved on a case-by-case basis, taking into account any factors that may affect
whether adult entertainment establishments are on "equal footing with other prospective purchasers and
lessees." City of Renton, 475 U.S. at 54, 106 S.Ct. 925; see also Int'l Food & Beverage Sys. v. City of Ft.
Lauderdale, 794 F.2d 1520, 1526 (11th Cir.1986)(referring to "community needs, the incidence of nude bars
in other comparable communities, the goals of the city plan, and the kind of city the plans works towards").
In light of this, we affirm the district court's judgment insofar as it held that the grandfathered sites
may be considered in the "reasonable alternative avenues of expression" equation. In accordance with our
custom of only deciding difficult constitutional questions when necessary, however, we remand this case to
the district court for it to determine whether one or two more sites are available inside the city limits. If need
be, the district court should then decide whether the total number of sites constitutes reasonable alternative
4
avenues of expression.
II.
We now turn to Casselberry's adult entertainment licensing ordinance, to which Boss Capital has two
objections. Its first objection is that the ordinance does not provide for prompt judicial review in compliance
with Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), because it does not guarantee
that courts will promptly resolve appeals from administrative license denials. Second, it contends that the
ordinance gives licensing officials too much discretion in violation of Shuttlesworth v. City of Birmingham,
394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
A.
We have twice pretermitted the question whether Freedman 's requirement of prompt judicial review,
as reflected in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality
opinion), requires licensing ordinances to explicitly provide for prompt judicial review. See Lady J. Lingerie,
176 F.3d at 1363; Redner v. Dean, 29 F.3d 1495, 1501-02 & n. 9 (11th Cir.1994) (discussing Cent. Fla.
Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir.1985); Miami Herald Publ'g Co. v. City of
Hallandale, 734 F.2d 666, 675-76 (11th Cir.1984)). As we have observed, a general right to judicial review
of administrative decisions may be enough. Casselberry's ordinance contains an explicit judicial review
provision, see Casselberry Code art. III, § 14-99(c) (reprinted in appendix), so the question in this case is
slightly different: whether Freedman and FW/PBS require a guarantee of prompt judicial resolution of
license denials.
This is an issue on which there has been some disagreement since the Supreme Court decided
FW/PBS. Justice O'Connor's plurality opinion in that case says that "there must be the possibility of prompt
judicial review in the event that [a] license is erroneously denied." FW/PBS, 493 U.S. at 228, 110 S.Ct. 596(emphasis added). Later she says that the Dallas ordinance violates the First Amendment because "[i]t also
fails to provide an avenue for prompt judicial review...." Id. at 229, 110 S.Ct. 596 (emphasis added). In
5
concurrence, Justice Brennan does not explicitly disagree with the plurality opinion on this issue, but he
characterizes the right to prompt judicial review differently, referring to it as the right to "a prompt judicial
determination." Id. at 239, 110 S.Ct. 596 (Brennan, J., concurring) (citing Freedman, 380 U.S. at 58-59, 85
S.Ct. 734).
This difference between Justice O'Connor's and Justice Brennan's characterizations of the right to
prompt judicial review has spawned a split in the circuits. The First, Fifth and Seventh Circuits hold that for
licensing ordinances, prompt judicial review only means access to prompt judicial review. See TK's Video,
Inc. v. Denton County, 24 F.3d 705, 709 (5th Cir.1994), followed in Grand Brittain, Inc. v. City of Amarillo,
27 F.3d 1068, 1070-71 (5th Cir.1994) (per curiam); Graff v. City of Chicago, 9 F.3d 1309, 1324-25 (7th
Cir.1993) (en banc); Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir.1993).
On the other side are the Fourth and Ninth Circuits and arguably the Sixth, which hold that Freedman and
FW/PBS require a guarantee of prompt judicial resolution. See Baby Tam & Co. v. City of Las Vegas, 154
F.3d 1097, 1101-02 (9th Cir.1998), followed in 4805 Convoy, Inc. v. City of San Diego, --- F.3d ---- (9th
Cir.1999); 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988, 998-1001 (4th
Cir.1995) (en banc); cf. East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224-25 (6th Cir.1995)
(state certiorari procedures an insufficient guarantee of prompt judicial review).
We have not yet decided whether Freedman and FW/PBS require municipalities to guarantee prompt
judicial resolution of appeals from license denials. In Redner, the Citrus County ordinance did not even
provide access to prompt judicial review. See 29 F.3d at 1501-02. We did not hold that mere access is
insufficient. But see 4805 Convoy, --- F.3d at ---- n.7 (reading Redner as saying that access to judicial review
is insufficient). We address that issue for the first time today.
Boss Capital makes a good argument that Freedman requires prompt judicial resolution of censorship
decisions, but in the end we conclude that access to prompt judicial review is sufficient for licensing
decisions. Freedman itself unmistakably requires "a prompt final judicial decision." 380 U.S. at 59, 85 S.Ct.
6
734; see also id. ("final judicial determination on the merits"; "judicial resolution"). Moreover, Freedman
's progeny also require an assurance of a prompt judicial decision. See Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. at 560, 95 S.Ct. 1239 ("a prompt final judicial determination must be assured") (1975);
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 371-74, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971)
(plurality opinion) (in Part I of the plurality opinion, joined by six Justices, imposing time limits for
completion of judicial proceedings in obscenity forfeiture cases); Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct.
423, 27 L.Ed.2d 498 (1971) ("a final judicial determination on the merits within a specified, brief period").
Still, none of these pre-FW/PBS cases involved a licensing ordinance for adult entertainment
establishments. Instead they involved censorship. In Freedman, for instance, state law authorized public
officials to ban movies it found to be obscene. 380 U.S. at 52-53 n. 2, 85 S.Ct. 734. For good reason,
Freedman ascribes great importance to prompt judicial resolution of the validity of these sorts of decisions;
courts' relative institutional insulation from political pressures makes them less apt to erroneously suppress
unpopular expression. See Henry P. Monaghan, First Amendment "Due Process", 83 Harv. L.Rev. 518, 520-
24 (1970).
The dangers of censorship are less threatening when it comes to licensing schemes. Unlike censors,
who pass judgment on the content of expression, licensing officials look at more mundane and ministerial
factors in deciding whether to issue a license. See 11126 Baltimore Boulevard, 58 F.3d at 1003 (Niemeyer,
J., concurring in part and dissenting in part) (no need for a guarantee of a prompt judicial decision in the
absence of a direct prior restraint on speech); see also FW/PBS, 493 U.S. at 229, 110 S.Ct. 596 (Licensing
officials do not pass judgment "on the content of any protected speech"; rather, they look at "the general
qualifications of each license applicant, a ministerial action that is not presumptively invalid."). Indeed,
Shuttlesworth limits licensing officials to the mundane and the ministerial. See Lady J. Lingerie, 176 F.3d
at 1362 (holding that Shuttlesworth requires licensing standards to be "precise and objective "). Furthermore,
applicants for adult entertainment licenses, unlike movie distributors who might show a given film in
7
hundreds of theaters around the country, have every incentive to stick it out and see litigation through to its
end. Cf. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. 596 (plurality opinion) (no need to put burden of going to
court and burden of proof on licensing officials because license applicants have the incentive to go to court).
The need for a prompt judicial decision is therefore less compelling for licensing ordinances than for
censorship schemes.
In sum, although Freedman appears to require prompt judicial resolution of censorship decisions,
licensing decisions are different. We believe this is a situation for "treating unlike things differently
according to their differences." Lyes v. City of Riviera Beach, 166 F.3d 1332, 1342 (11th Cir.1999) (en banc).
Accordingly, we agree with the First, Fifth and Seventh Circuits and hold that access to prompt judicial
review is sufficient for adult entertainment licensing ordinances. Casselberry's ordinance provides that
access: "Any decision of the Community Development Department pursuant to Division 2 (License) may
be immediately reviewed as a matter of right by the Circuit Court upon the filing of an appropriate pleading
by an aggrieved party." Casselberry Code art. III, § 14-99(c) (emphasis added). We therefore conclude that
Casselberry's ordinance does not run afoul of Freedman.
B.
Boss Capital also contends that Casselberry's adult entertainment licensing ordinance is invalid
because it gives licensing officials too much discretion in violation of Shuttlesworth. Whatever the merits
of this argument, we conclude that Boss Capital has not preserved this issue for appeal. Boss Capital's first
complaint raised the issue, but Casselberry has since repealed one of the provisions to which Boss Capital
initially objected. After that, Boss Capital scarcely mentioned the issue before filing its brief with us. The
district court did not address the issue. This is not enough to preserve an issue for appeal, so we decline to
address it. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (en banc).
III.
In conclusion, we hold that Casselberry's licensing ordinance is valid and that its zoning ordinance
8
might be, depending on the district court's determination on remand whether any additional sites are available
for adult entertainment establishments.
AFFIRMED in part and REMANDED.
APPENDIX
Casselberry Code of Ordinances
ARTICLE III. ADULT ENTERTAINMENT ESTABLISHMENTS
DIVISION 1. GENERALLY
Sec. 14-66. Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section, except where the context clearly indicates a different meaning:
***
Adult Performance Establishment
(a) shall mean an establishment where any employee:
(1) engages in a private performance or displays or exposes any specified anatomical areas to a patron,
regardless of whether the employee actually engages in dancing:
(2) wears any covering, tape, pastie, or other device which simulates or otherwise gives the appearance
of the
APPENDIX—Continued
display or exposure of any specified anatomical areas, regardless of whether the
employee actually engages in dancing:
(3) offers, solicits, or contracts to dance or perform with a patron and accepts any consideration, tip,
remuneration or compensation from or on behalf of that person: or
(4) dances or performs with or within three (3) feet of a patron and accepts any consideration, tip,
remuneration, or compensation from or on behalf of that person.
(b) It is an affirmative defense that an establishment is not an adult performance
establishment if the establishment is a bona fide private club whose membership as a whole engages
in social nudism or naturalism as in a nudist resort or camp, or such other establishment in which the
predominant business or attraction of the establishment is not the offering to customers of a product,
service, or entertainment which is intended to provide sexual stimulation or sexual gratification to
such customers, and the establishment is not distinguished by an emphasis on or the advertising or
promotion of materials relating to or employees depicting, describing, displaying, exposing, or
9
simulating sexual activities or specified anatomical areas.
(c) An adult entertainment establishment shall not be deemed a place provided or set apart for the purpose
of exposing or exhibiting a person's sexual organs in a manner contrary to the first sentence of Section 800.03,
Florida Statutes, the State's indecent exposure statute as set forth in the decision of the Supreme Court of
Florida in the case of Hoffman v. Carson, 250 So.2d 891 (Fla.1971), appeal disAPPENDIX—Continued
missed 404 U.S. 981, 92 S.Ct. 453, 30 L.Ed.2d 365 (1971).
Adult entertainment establishment means an adult arcade, adult bookstore, adult motel, adult
performance establishment, or adult theater.
***
Residential zoning district means any area legally zoned or designated by an adopted
comprehensive plan in a manner primarily intended for dwellings.
***
Sec. 14-74. Location generally.
All adult entertainment establishments within the City of Casselberry, Florida shall be limited
to the C-G (Commercial-General) zoning district and shall be subject to all restrictions enumerated
in this Code.
Sec. 14-75. Prohibited locations.
(a) No person shall cause or permit the establishment, substantial enlargement or transfer of
ownership or control of an adult entertainment establishment within 1,000 feet of any other adult
entertainment establishment or any church, school, public park or public recreation area, or within
1,000 feet of an area zoned for residential use or designated by an adopted comprehensive plan in
a manner primarily intended for dwellings. For purposes of this Section, the term "substantial
enlargement" shall mean increasing the size of the permitted or licensed premises by more than ten
percent of the original licensed premises.
(b) For the purposes of this Section, distance measurements shall be made in a straight line, without
regard to intervening structures or objects, from the nearest property line of the property used as an
APPENDIX—Continued
adult entertainment establishment to the nearest property line of the premises of a church, school,
public park or public recreation area, or to the nearest boundary of any area legally zoned or
designated by a comprehensive plan in a manner primarily intended for dwellings, without regard
to municipal boundaries. Measurement of distances between adult entertainment establishments shall
be from lot line to lot line at their nearest points.
Sec. 14-76. Nonconforming uses.
(a) Generally. An adult entertainment establishment which, on the effective date of the
ordinance from which this Article is derived, does not comply with the distance requirements of
Section 14-75, shall be subject to the nonconforming use provisions contained in the zoning code of
10
the City.
(b) Residential rezoning. If an area is zoned residential or designated by a comprehensive
plan in a manner primarily intended for dwellings for the first time, or if an area is rezoned for
residential use or redesignated by a comprehensive plan in a manner primarily intended for dwellings
and lies within 1,000 feet of an existing adult entertainment establishment, the adult entertainment
establishment shall be considered an existing nonconforming use, as defined in Subsection (a) of this
Section, from the effective date of the rezoning ordinance.
DIVISION 2. LICENSE
Sec. 14-96. Required; business classifications.
(a) It shall be unlawful for any person to operate an adult entertainment establishment without having
first obtained an adult entertainment license issued by the APPENDIX—Continued
Community Development Department which is applicable for such establishment, or to continue to
operate an establishment where that person knows or has reason to know that the license of the
establishment is under suspension, has been revoked or has lapsed. The operation of an adult
entertainment establishment without a valid license, where required, shall be grounds for the closing
of the establishment upon a finding of fact by a court or other body with proper jurisdiction that the
establishment has no valid license.
(b) Adult entertainment licenses referred to in this Article shall be classified as follows:
(1) Adult bookstore
(2) Adult theater
(3) Adult performance establishment
(c) An adult entertainment license for a particular adult entertainment establishment shall be
limited to one (1) classification of license.
Sec. 14-99. Issuance or denial.
(a) Generally.
(1) Upon the completion of the investigation and review of an application as required in this Division,
upon determination that the applicant meets the requirements of this Division, and upon payment of
the appropriate license fee by the applicant, the Community Development Department shall issue the
license.
(2) If, after review and investigation as provided in this Division, the Community Development
Department determines that one or more of the reasons for denial stated in Subsection (b) of this
Section exist, the application shall be denied, and the Community Development Depart-
APPENDIX—Continued
ment shall make a written report of the denial and the reasons therefor. A copy of
11
the report shall be sent by certified mail to the designated return address of the
applicant on the application.
(b) Grounds for denial. The application for a license shall be denied if one or more of the
following conditions are found to exist:
(1) The application does not comply with the requirements of this Article.
(2) The application contains material false information.
(3) The applicant or any of the individuals listed in Section 14-97(b)(1) has a license under this Division
which has been suspended or revoked as a result of the implementation of Section 14-77.
(4) The granting of the application would violate a statute or ordinance or an order from a court of law
which effectively prohibits the applicant from obtaining an adult entertainment license.
(c) Judicial review. Any decision of the Community Development Department pursuant to
Division 2 ("License") may be immediately reviewed as a matter of right by the circuit court upon
the filing of an appropriate pleading by an aggrieved party.
Sec. 14-101. Time limit for action on application.
The Community Development Department shall grant or deny all applications submitted hereunder within
forty-five (45) days from the date that a completed application with application fee was submitted. Upon
expiration of the 45th day, the applicant shall be permitted to begin operating the establishment for which a
license is sought, unless and until the Community APPENDIX—Continued
Development Department notifies the applicant of a denial of the application and states the reason(s)
for that denial.
PART III. UNIFIED LAND DEVELOPMENT REGULATIONS
Chapter II
DISTRICT AND GENERAL REGULATIONS
ARTICLE VIII. NONCONFORMING USES AND NONCOMPLIANT STRUCTURES
Section 2-8.9. Abandonment or discontinuance of a nonconforming use.
APPENDIX—Continued
If a nonconforming use is removed or abandoned, or ceases for a continuous period of more
than 90 consecutive days, any and every future use of the premises shall be in conformity with the
use provisions of the land development regulations. All material and equipment associated with the
abandoned or discontinued nonconforming use shall be completely removed from the premises by
its owner within six months after the expiration of the 90-day period. No additional structure which
does not conform to the requirements of this Article shall be erected in connection with such
12
nonconforming use of land.
13