121 F.3d 586 (11th Cir. 1997), 96-4056, Digital Properties, Inc. v. City of Plantation

Docket Nº:96-4056.
Citation:121 F.3d 586
Party Name:DIGITAL PROPERTIES, INC., a Florida Corporation, Plaintiff-Appellant, v. CITY OF PLANTATION, a Florida Municipal Corporation, Defendant-Appellee.
Case Date:September 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 586

121 F.3d 586 (11th Cir. 1997)

DIGITAL PROPERTIES, INC., a Florida Corporation, Plaintiff-Appellant,


CITY OF PLANTATION, a Florida Municipal Corporation,


No. 96-4056.

United States Court of Appeals, Eleventh Circuit

September 5, 1997

Page 587

Clyde DeWitt, Weston, Garrou and DeWitt, Los Angeles, CA, for Plaintiff-Appellant.

Harris K. Solomon, Keneth E. Keechl, Ft. Lauderdale, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL [*], Senior Circuit Judge.

HATCHETT, Chief Judge:

In this appeal, we affirm the judgment of the district court dismissing this First Amendment action based on appellant's failure to present an actual case or controversy.


Appellant Digital Properties, Inc. (Digital) sought to establish an adult book and video store in the City of Plantation, Florida (Plantation

Page 588

or the City). The business would include the rental or sale of sexually oriented video tapes, books, magazines and novelties, as well as the on-premises viewing of sexually explicit video materials using currency-operated viewing devices. Digital entered into a contract to purchase a commercial building, which had formerly housed a restaurant, located on State Road 7 in Plantation. Digital subsequently hired an architect, Robert Ishman, to design and plan the remodeling necessary to convert the property to conform to Digital's intended use.

Prior to Digital's contractual agreement to purchase the property, the City reclassified the property as a "B-3P" zone. 1 Pursuant to the City's master list of business and commercial uses, a B-3P zone is a general business district permitting such business uses as book stores, newsstands, and theater and motion picture houses. See Plantation Code of Ordinances (Code of Ordinances or P.C.O.) § 27-720. Pursuant to the Code of Ordinances,

[w]here a commercial or business use is not expressly permitted or prohibited on [the] master list of business and commercial uses, it shall be deemed permissive and shall require an ordinance defining such permissive use, placing such restrictions thereon as are deemed appropriate, and otherwise identifying the commercial or business zoning use districts wherein such permissive use will be permitted; it being the expressed intent of the city council that all such permissive (nonidentified) uses on the master list of business and commercial uses are prohibited until so defined and included.

P.C.O. § 27-716(g).

The master list of business uses did not expressly identify adult book or video stores as either permitted or prohibited in the B-3P zone. Based upon prior advice of counsel, Digital believed that any zoning scheme which did not expressly permit adult businesses in at least one zoning area was unconstitutional pursuant to the Supreme Court's decision in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Assuming, therefore, that Plantation's zoning scheme was unconstitutional, Digital nonetheless proceeded to determine whether the City permitted such non-listed uses in B-3P zones.

On September 22, 1995, Ishman and Digital's attorney, Joseph Lopez, attempted to file the remodeling plans at Plantation City Hall. Plantation required that an owner file such plans and obtain zoning approval prior to the issuance of a building permit. See P.C.O. § 27-416. A clerk in the building department first directed Ishman and Lopez to seek "environmental approval" before submitting the plans. The clerk also suggested that the men meet with her supervisor, the Chief Building Inspector. Following the clerk's advice, Ishman and Lopez discussed their plans with the supervisor, who instructed them to visit the zoning department.

Upon reaching the zoning department, Lopez and Ishman spoke with Assistant Zoning Technician Kris Sorrentino. They introduced themselves as representatives of the State Road 7 property's owner and informed Sorrentino of Digital's intent to change the use of the building from a restaurant to an adult book and video store. The men handed Sorrentino the following description of the proposed enterprise:

A retail business which rents and sells pre-recorded videotapes, sells books, magazines, periodicals, novelties and paraphernalia, as well as allowing on-premise, individual viewing of videotapes by way of currency-operated viewing devices. Most of the products and videotapes in an Adult Video Store are of the sexually oriented, adult variety, for which reason minors are excluded from the premises.

The parties contest the exact nature of Sorrentino's response. Digital contends that Sorrentino told Ishman and Lopez that "the City of Plantation does not allow such use" and refused to accept the plans. The City asserts that Sorrentino informed them that the Code of Ordinances did not expressly permit such a use in a B-3P zone. Digital does not appear to contest, however, that

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Sorrentino then advised Ishman and Lopez to speak with Manny MacLain, Plantation's Director of Building and Zoning, in part because the scope of her job did not encompass accepting building plans over the counter. Following this exchange with Sorrentino, the men immediately left without consulting with MacLain.

On September 27, 1995, Digital filed this action in the United States District Court for the Southern District of Florida pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. Digital averred that Plantation's zoning scheme was unconstitutional, both facially and as applied. Digital contended that Sorrentino's alleged statement impaired its constitutional rights and constituted injury-in-fact. On September 28, 1995, Digital also sought a preliminary injunction prohibiting Plantation from enforcing the Code of Ordinances to prevent Digital from opening its business. Plantation responded to Digital's preliminary injunction motion and filed a motion on October 30, 1995, pursuant to Federal Rule of Civil Procedure 12(b), to dismiss the complaint.

On November 13, 1995, the district court dismissed Digital's complaint without prejudice for lack of subject matter jurisdiction. The court held that Digital's complaint failed to present an actual case or controversy ripe for adjudication as required by Article III of the United States Constitution. In support of its holding, the court found that Digital's "rush to the courthouse was premature." The court also referred to Digital's failure to exhaust its administrative remedies, pursuant to Plantation's procedures for obtaining zoning variances, as a basis for its dismissal of the complaint. Digital filed this appeal.


We address whether the district court properly dismissed Digital's complaint for lack of subject matter jurisdiction based on Digital's...

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