Lady J. Lingerie, Inc. v. City of Jacksonville

• Decision Date: 27 May 1999
• Docket Number: 98-2207,Nos. 98-2088,s. 98-2088
• Citation: 176 F.3d 1358
• Parties: 12 Fla. L. Weekly Fed. C 883 LADY J. LINGERIE, INC., a Florida corporation; Buford B. Breland, et al., Plaintiffs-Appellants, v. CITY OF JACKSONVILLE, a Florida municipal corporation, Defendant-Appellee. Milton R. Howard, Emro Corporation, d.b.a. J.R.'s Lounge, Plaintiffs-Appellants, v. City of Jacksonville, a Florida municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1358

176 F.3d 1358

12 Fla. L. Weekly Fed. C 883

LADY J. LINGERIE, INC., a Florida corporation; Buford B.

Breland, et al., Plaintiffs-Appellants, v. CITY OF JACKSONVILLE, a Florida municipal corporation,

Defendant-Appellee.

Milton R. Howard, Emro Corporation, d.b.a. J.R.'s Lounge, Plaintiffs-Appellants, v. City of Jacksonville, a Florida municipal corporation,

Defendant-Appellee.

Nos. 98-2088, 98-2207.

United States Court of Appeals, Eleventh Circuit.

May 27, 1999.

Gary S. Edinger, Gainesville, FL, for Plaintiffs-Appellants.

Bruce Page, Jacksonville, FL, for Defendant-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and JONES ^*, Senior Circuit Judge.

DUBINA, Circuit Judge:

These consolidated cases require us to determine de novo the constitutionality of several provisions of a Jacksonville, Florida (the "City") ordinance that subjects adult businesses to various licensing, health and safety, and zoning regulations. The plaintiffs/appellants are "lingerie shops" that showcase nude dancing. The City classifies them as "adult entertainment establishments." Jacksonville, Fla. Adult Ent. & Serv.Code § 150.103(c) (reprinted in appendix). The district court initially agreed with some of the plaintiffs' objections to the ordinance and preliminarily enjoined enforcement of the licensing and zoning provisions. In response, the City amended its ordinance. The district court lifted its injunction and upheld most of the provisions of the new ordinance. See Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D.Fla.1997). The plaintiffs then perfected this appeal.

I.

First we decide whether regulations requiring adult entertainment establishments to apply for zoning exceptions comply with the First Amendment. The City permits adult entertainment establishments to operate as of right in only one area, the CCBD (Commercial/Central Business District) zone. They may also operate in the CCG-2 (Commercial Community/General-2) zone, but only if the zoning board grants them a zoning exception. See Jacksonville, Fla. Land Use Code § 656.313(IV)(c)(7) (reprinted in appendix). In addition, the ordinance forbids adult businesses in either zone from locating within specified distances of residences, schools, churches, bars or other adult businesses. See Jacksonville, Fla. Land Use Code § 656.1103(a) (reprinted in appendix).

The main objection the plaintiffs have to the ordinance is that there are only two sites in the CCBD zone that comply with the distance requirements. This means that practically all adult entertainment establishments must apply for a zoning exception to operate anywhere in the City. The City concedes this, but argues that there are 93-plus available sites in the CCG-2 zone, and that we should include those sites in the calculation. The combined 95 sites, it maintains, are enough.

We usually review zoning regulations in this area under the deferential "time, place, or manner" standards which the Supreme Court delineated in City of Renton v. Playtime, Theatres, Inc., 475 U.S. 41, 50-54, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Int'l Eateries of America, Inc. v. Broward Co., Fla., 941 F.2d 1157, 1161-65 (11th Cir.1991). A zoning ordinance is valid if it is narrowly tailored to serve a substantial government interest, and it allows for reasonable alternative avenues of expression. See Int'l Eateries, 941 F.2d at 1161-65. Combating the harmful secondary effects of adult businesses, such as increased crime and neighborhood blight, is a substantial government interest. See City of Renton, 475 U.S. at 50-52, 106 S.Ct. 925; Barnes v. Glen Theatre, Inc., 501 U.S. 560, 583-84, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring in the judgment).

Most zoning ordinances easily meet these standards, but this ordinance does not. Even if the ordinance is narrowly tailored to serve a substantial government interest, it only allows for reasonable alternative avenues of expression if the 93-plus sites in the CCG-2 zone count. But to operate in the CCG-2 zone, an adult entertainment establishment must apply for an exception. This makes an exception the equivalent of a license. The City does have a separate licensing procedure for adult entertainment establishments (for which, incidentally, a zoning exception is a prerequisite), but the indispensability of the zoning exception persuades us to treat it like a license as well.

As a form of prior restraint, licensing schemes commonly contain two defects: discretion and the opportunity for delay. An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Licensing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is also invalid. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Jacksonville's zoning exceptions process contains both defects.

A. Discretion

Section 656.131 of the Jacksonville Land Use Code specifies the procedures for obtaining a zoning exception. See Jacksonville, Fla. Land Use Code § 656.131 (reprinted in appendix). The procedures apply to applicants of all sorts--not just adult businesses. Subsection (c)(1) contains the criteria the zoning board must consider in deciding whether to grant exceptions. These are run-of-the-mill zoning considerations: compatibility with contiguous uses, environmental impact, effect of pedestrian traffic, and so on. But they are just a floor; subsection (c)(2) permits the board to impose more restrictive requirements on applicants.

The district court held that subsection (c)(2) is unconstitutional, and severed that provision from the rest of the ordinance. The City does not appeal that part of the judgment. Instead, the plaintiffs appeal the part of the judgment that upheld all of the (c)(1) criteria. The district court found that these factors (in the absence of subsection (c)(2)) sufficiently limit the board's discretion. We disagree.

The standard incantation of the Shuttlesworth principle is that statutes may not give public officials "unbridled" discretion to deny permission to engage in constitutionally protected expression. E.g., City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (citing Shuttlesworth, 394 U.S. at 151, 89 S.Ct. 935). This implies that some measure of discretion is acceptable, but the cases show that virtually any amount of discretion beyond the merely ministerial is suspect. Standards must be precise and objective. See, e.g., Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. 935 ("narrow, objective, and definite"); Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1547-48 (11th Cir.1993) ("definite and precise"); see also Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (upholding "first-come, first-served" method of allocating booths at the state fair); Church of Scientology, 2 F.3d at 1548 (labeling city clerk's duty to obtain information from applicants for solicitation licenses "purely ministerial").

Such is not the case with subsection (c)(1). None of the nine criteria is precise and objective. All of them--individually and collectively--empower the zoning board to covertly discriminate against adult entertainment establishments under the guise of general "compatibility" or "environmental" considerations. Jacksonville, Fla. Land Use Code § 656.131(c)(1)(ii) & (iii). Even the seemingly-innocuous fire safety provision is too broad. It does not say "there must be x number of doors per square foot"; it says that buildings must be "sufficiently accessible to permit entry onto the property by fire, police, rescue and other services." Id. § 656.131(c)(1)(viii) (emphasis added). This is neither precise nor objective.

To be clear, the City may still use the (c)(1) criteria (and (c)(2), for that matter) for applicants who are not entitled to First Amendment protection. We only find troublesome the application of the otherwise-valid zoning criteria to adult businesses like the plaintiffs'.

B. Delay

The opportunity for public officials to delay is another form of discretion. Recognizing this, the Supreme Court held in Freedman that a Maryland movie censorship law violated the First Amendment because it did not require prompt decisions. In a later case, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion), a majority of the Court (the plurality plus three concurring Justices) applied Freedman to an adult business licensing scheme. See also id. at 238, 110 S.Ct. 596 (Brennan, J., concurring). Specifically, the Court agreed that ordinances must contain two procedural safeguards to ensure prompt decision-making: (1) licensing officials must be required to make prompt decisions; and (2) prompt judicial review must be available to correct erroneous denials. See id. at 228-30, 110 S.Ct. 596; Redner v. Dean, 29 F.3d 1495, 1500 (11th Cir.1994). The same safeguards are required here.

First, the ordinance fails to put any real time limits on the zoning board. The board must hold a public hearing within 63 days after a business applies for an exception. See Jacksonville, Fla. Land Use Code § 656.131(c)(4). But nothing requires a decision within 63 days, or any other time period. The ordinance's failure to require a deadline for decision renders it unconstitutional. See Redner, 29 F.3d at 1501.

The City concedes that the ordinance does not give the zoning board a deadline for decision, but...