Hugh Johnson Enterprises, Inc. v. City of Winter Park

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 9, 2007
No. 06-15817 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01402-CV-ORL-31-JGG
HUGH JOHNSON ENTERPRISES, INC.,
doing business as Club Harem,
Plaintiff-Appellant,
versus
CITY OF WINTER PARK, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 9, 2007)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Hugh Johnson Enterprises, Inc., d/b/a Club Harem, appeals the dismissal of
its complaint as not being ripe for adjudication and lacking subject-matter
jurisdiction. We AFFIRM.
I. BACKGROUND
Club Harem, owned and operated by Hugh Johnson Enterprises, Inc., is the
only licensed adult-entertainment establishment in Winter Park, Florida. The
property on which the club is located has been used for adult entertainment, non-
obscene erotic dancing, for approximately thirty years. Previously, Club Harem
was licensed by Orange County and operated under its adult-entertainment code.
In 2003, the City of Winter Park annexed the property on which Club Harem is
located and other properties on Lee Road west to Interstate 4.
On March 17, 2006, Club Harem was raided by Winter Park police. Various
arrests of patrons and employees occurred. Thereafter, Club Harem’s attorney
contacted the attorney for the City of Winter Park to ascertain whether the city was
contemplating or intending to initiate licensing penalties against the nightclub.
Following requests for documents, counsel for Club Harem learned that (1) at a
meeting at Winter Park police headquarters on December 22, 2005, a detective had
stated that the city would like to prevent Club Harem from doing future business
by having its license revoked, (2) a document instructed that a determination of
whether Club Harem’s city occupational license could be revoked be made, and (3)
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a response letter dated September 5, 2006, from the assistant city attorney to Club
Harem’s counsel’s letter asking if the city intended to pursue a licensing action
against the nightclub, states in pertinent part:
Please be advised that there is no pending proceeding to revoke Club
Harem’s license. However, the City of Winter Park will continue to
seek to enforce all of its laws, ordinances, or regulations against any
party who appears to be in violation of them.
As such, if Club Harem is in violation of any of the City of
Winter Park’s laws, ordinances, or regulations, the City of Winter
Park reserves all of its rights to take the appropriate enforcement
action.
R1-1 at Tab C (emphasis added). Rather than face the loss of its license under an
allegedly unconstitutional ordinance, Club Harem sought a declaratory judgment
and injunction, which would decide that the Winter Park Adult Entertainment
Code, sections 14-50 (Suspension) and 14-51 (Revocation), are unconstitutional
and unenforceable. The district judge granted Winter Park’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) and concluded that Club Harem’s
action was not ripe for adjudication and that the court lacked subject-matter
jurisdiction. This appeal ensued.
II. DISCUSSION
We review the granting of a motion to dismiss under Rule 12(b)(6) de novo
and apply the same legal standard used by the district court. Hoffman-Pugh v.
Ramsey, 312 F.3d 1222, 1225 (11 th Cir. 2002). “‘When considering a motion to
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dismiss, all facts set forth in the plaintiff’s complaint are to be accepted as true and
the court limits its consideration to the pleadings and exhibits attached thereto.’”
Thaeter v. Palm Beach County Sheriff ’s Office, 449 F.3d 1342, 1352 (11 th Cir.
2006) (citation omitted). Based on the facts as stated in the complaint and attached
exhibits, the threshold decision is ripeness.
The United States Constitution limits the jurisdiction of federal courts by
permitting them to consider only disputes that rise to the level of being “Cases” or
“Controversies.” U.S. Const. art. III, § 2; National Adver. Co. v. City of Miami,
402 F.3d 1335, 1338 (11 th Cir. 2005) (per curiam) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130, 2136 (1992)), cert. denied, __
U.S.__, 126 S. Ct. 1318 (2006). “The ripeness doctrine protects federal courts from
engaging in speculation or wasting their resources through the review of potential
or abstract disputes.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586,
589 (11 th Cir. 1997). The two-step “ripeness inquiry requires a determination of
(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties
of withholding court consideration. Id. The court must determine “‘whether there
is sufficient injury to meet Article III’s requirement of a case or controversy and, if
so, whether the claim is sufficiently mature, and the issues sufficiently defined and
concrete, to permit effective decisionmaking by the court.’” Id. (citation omitted).
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The plaintiff corporation in Digital Properties sought to open an adult book
and video store, although Digital had obtained prior legal advice that the municipal
zoning code did not allow adult book and video stores anywhere in the city. Based
on the rationale that the restriction made the zoning code unconstitutional and
unenforceable, Digital filed in federal court a case challenging the municipal
zoning scheme as unconstitutional. The city filed a motion to dismiss for lack of
subject-matter jurisdiction under the ripeness doctrine, and the district judge
granted the motion in part because Digital’s “rush to the courthouse was
premature.” Id.
On appeal, we concluded that Digital had failed to present a ripe claim for
review, because it did not pursue its claim with the requisite diligence to show that
a mature claim or controversy existed. Id. at 590. We reasoned “that Digital’s
presumption of constitutional infirmity bred impatience and prompted it to file an
unripe claim,” when the ripeness doctrine requires a formalized decision from a
governmental authority, “and its effects [must be] felt in a concrete way by the
challenging parties.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 135, 148-49,
87 S. Ct. 1507, 1515 (1967)). We explained that “Digital’s impatience precluded
the formation of a concrete case or controversy”; because there was no tangible
controversy, the federal courts were without authority to act. Id. (emphasis added).
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Therefore, we concluded that Digital’s “anticipated belief” that the city would
interpret its code in a way that violated Digital’s rights was insufficient to meet the
ripeness standard; consequently, there was no subject-matter jurisdiction over the
dispute. Id. We have recognized that, to challenge the constitutionality of
government action, a proponent has the obligation to obtain a conclusive and
definitive government decision regarding the alleged unconstitutional application
of the legislation questioned.1 National Adver., 402 F.3d at 1340 (citing Digital
Properties, 121 F.3d at 590).
The Winter Park Adult Entertainment Code, attached to Club Harem’s
complaint, states the procedures for suspension and revocation of an adult
entertainment license in sections 14-50 and 14-51. An adult-entertainment license
may be suspended for thirty (30) days for “three or more violations of article VI of
the Orange County Adult Entertainment Code” within a two-year period, if there is
a conviction. Winter Park Adult Entertainment Code § 14-50(c)(1). After a first
suspension, then another conviction can result in a ninety-day suspension. Id. at §
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The city has argued that Club Harem has confused an occupational license for a
business with an adult-entertainment license. Its contention is that the reference to a business
license in Club Harem’s correspondence with the city’s attorneys, attached as exhibits to its
complaint, means an occupational license rather than an adult-entertainment license. Counsel
for Club Harem refutes this assertion in his reply brief. Reply Br. at 5-6. Because Club Harem
is the only licensed adult entertainment business in Winter Park, we conclude that the business
license that Club Harem is challenging in its complaint for declaratory judgment and injunctive
relief is its license for adult entertainment and not its occupational license required for all
businesses.
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14-50(c)(2). Finally, if a license has been suspended for ninety days, and there is
within two years of the conviction leading to that suspension another conviction,
then the license can be suspended for 180 days. Id. at § 14-50(c)(3). Absent false
information in the application process, an adult-entertainment license can be
revoked only if, within two years of the conviction that led to the 180-day
suspension, there is another conviction. Id. at § 14-51(b)(1).
Club Harem has not alleged that there have been any suspensions or
convictions under the Winter Park Adult Entertainment Code. All that Club
Harem’s complaint alleges is that the City of Winter Park has an inchoate desire to
use the city’s Adult Entertainment Code to revoke Club Harem’s license based on
a comment by a detective of the Winter Park Police Department that he would like
to see the revocation process occur. Absent from the complaint is any allegation
that the city has taken identifiable steps to revoke Club Harem’s license.
Moreover, in response to inquiry by Club Harem’s counsel, the assistant city
attorney responded that no revocation proceeding regarding Club Harem was
pending. Consequently, the city has taken no concrete or cognizable action to
suspend or revoke Club Harem’s license. Because it has suffered no action to
suspend or revoke its license whatsoever from Winter Park through its adult
entertainment ordinance, Club Harem’s challenge to the constitutionality of the
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Winter Park Adult Entertainment Code is premature and unripe for adjudication.
Therefore, the district judge properly dismissed Club Harem’s complaint under
Rule 12(b)(6).
III. CONCLUSION
Club Harem has appealed the dismissal of its complaint challenging the
constitutionality of the Winter Park Adult Entertainment Code. Because the city
has taken no steps to suspend or revoke Club Harem’s adult entertainment license,
Club Harem’s request for preliminary constitutional adjudication of the ordinance
is not ripe, and subject-matter jurisdiction is lacking. Accordingly, the district
judge’s dismissal of Club Harem’s complaint is AFFIRMED.
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