Boss Capital v. City of Casselberry

• Citation: 187 F.3d 1251
• Decision Date: 03 September 1999
• Docket Number: No. 98-2802,98-2802
• Parties: (11th Cir. 1999) BOSS CAPITAL, INC., a Florida Corporation, Plaintiff-Appellant, v. CITY OF CASSELBERRY, a Florida Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1251

187 F.3d 1251 (11th Cir. 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 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 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, 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 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...