Redner v. Dean

• Decision Date: 26 August 1994
• Docket Number: No. 92-3033,92-3033
• Citation: 29 F.3d 1495
• Parties: Joseph Richard REDNER, Petitioner-Appellee, v. Charles S. DEAN, Sheriff of Citrus County, Florida, Respondent-Appellant, Robert A. Butterworth, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1495

29 F.3d 1495

Joseph Richard REDNER, Petitioner-Appellee, v. Charles S. DEAN, Sheriff of Citrus County, Florida Respondent-Appellant Robert A. Butterworth, Respondent-Appellee.

No. 92-3033.

United States Court of Appeals Eleventh Circuit.

Aug. 26, 1994.

Russell W. LaPeer, Robert R. Wheeler, Landt, Trow, & LaPeer, Ocala, FL, for appellant.

Luke Charles Lirot, Clearwater, FL, Belle B. Turner, Daytona Beach, FL, for appellee.

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

Before ANDERSON and BIRCH, Circuit Judges, and ALBRITTON ^*, District Judge.

BIRCH, Circuit Judge:

In this habeas corpus appeal, we must decide the constitutionality of a Citrus County, Florida licensing ordinance (the "Ordinance") regulating adult entertainment establishments. The district court found the Ordinance facially unconstitutional because it lacked the procedural safeguards required for a system of prior restraint. The court therefore granted the writ of habeas corpus to the petitioner, who had been convicted of violating the Ordinance. The district court also granted the motion of the Florida Attorney General, releasing him from costs and from the responsibility for setting aside the petitioner's conviction. We affirm both of the district court's rulings.

I. BACKGROUND

In March 1988, the petitioner-appellee, Joseph Redner, began preparations to open an adult entertainment facility in Citrus County, Florida. Redner planned to open the facility on March 25, and by March 24, he had acquired all necessary permits and licenses. At the time, Citrus County had no ordinance specifically governing adult entertainment facilities. On March 25, however, the Citrus County Board of County Commissioners (the "Board") held an emergency session and adopted temporary Citrus County Ordinance No. 88-05, entitled the "Citrus County Adult Entertainment Ordinance." ¹

The stated purpose of the Ordinance is "to establish reasonable and uniform regulations that will protect the health, safety, morals and general welfare of the people of Citrus County, Florida." Citrus County Ordinance No. 88-05, Sec. 1-5. The Ordinance attempts to regulate adult entertainment establishments ² within Citrus County by requiring operators of such facilities to obtain a license from the County Administrator (the "Administrator"). ³ Id. Sec. 2-2(a).

In order to obtain a license, an operator must submit to the Administrator an application containing, among other things, the applicant's name, business designation, and criminal history; whether the applicant has had a previous license revoked or suspended; whether the applicant has any other licenses; and other information about the facility, including location, site plan, and a list of employees. Id. Sec. 2-3(b). The Administrator must then send copies of the application to the Sheriff, the Department of Development Services, Fire Prevention, and the Health Department, whereupon each agency conducts an investigation. Id. Sec. 2-4(a). If any of these investigations reveals that the proposed establishment will be in violation of any building, fire, health, or zoning statute, code, ordinance, or regulation, the agency must notify the Administrator. Id. Sec. 2-4(b).

Section 2-5(c) provides the reasons for which the Administrator may deny a license. ⁴ The Administrator must make its decision to grant or deny a license within forty-five days of the filing of the application. ⁵ Id. Sec. 2-5(a)(1). At the expiration of the forty-five-day time period, "the applicant may be permitted to begin operating the establishment for which a license is sought, unless and until the County Administrator notifies the applicant of a denial of the application and states the reason(s) for the denial." Id.

An applicant who is denied a license has fifteen days to appeal to the Board. Id. Sec. 6-1(1). Upon receipt of the notice of appeal, the Clerk of the Board "shall schedule a hearing for as soon as the Board's calendar will allow." Id. Sec. 6-1(2). "If, at the conclusion of the hearing, the Board finds that the license or permit should not have been denied ..., it shall so notify the County Administrator, who shall immediately grant ... the license...." Id. Sec. 6-1(3). ⁶

In the present case, Redner refused to comply with the Ordinance and opened his adult entertainment establishment without applying to the Administrator for a license. Within four days, Redner had been charged three times with violating the Ordinance by operating an adult entertainment establishment without a license. Seeking declaratory, injunctive, and compensatory remedies, Redner immediately brought an action under 42 U.S.C. Sec. 1983 in the United States District Court for the Middle District of Florida challenging the constitutionality of the Ordinance.

Before the federal case went to trial, however, Redner was tried in state court for Citrus County, where he defended on the grounds that the Ordinance was unconstitutional. The court upheld the Ordinance and Redner was convicted of three counts of operating an adult entertainment establishment without a license. Redner's conviction was affirmed by the Florida Fifth Judicial Circuit Court, and the Florida Fifth District Court of Appeal denied discretionary review.

In February 1989, Redner's federal civil rights case went to trial in the Middle District of Florida. Refusing to interfere with the ongoing state criminal proceedings, the district court abstained from ruling on the constitutionality of the Ordinance. We affirmed the district court's abstention, but remanded the case for further proceedings concerning Redner's identical attacks on the constitutionality of the successor, permanent licensing ordinance, Redner v. Citrus County, 919 F.2d 646 (11th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246, and cert. denied, --- U.S. ----, 112 S.Ct. 303, 116 L.Ed.2d 246 (1991). That case is being held in abeyance in the district court pending the outcome of this appeal.

In May 1991, Redner was to begin serving the sentences for his state criminal convictions. He filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. The district court referred the petition to a magistrate judge, and on March 4, 1992, the magistrate judge issued a report and recommendation finding the Ordinance unconstitutional. The magistrate judge found that the Ordinance fails to provide the procedural safeguards necessary for a system of prior restraint because it does not place specific time limits on the decision-maker and does not provide for prompt judicial review. The district court adopted the magistrate judge's report and recommendation and granted Redner's petition for habeas corpus relief. The court directed the two respondents, Florida Attorney General Robert Butterworth and Citrus County Sheriff Charles Dean, to set aside Redner's convictions and discharge him from any restraint. The court also directed Butterworth and Dean to pay Redner's costs.

On May 28, 1992, Butterworth made a motion under Federal Rule of Procedure 59(e) to amend the civil judgment to place the responsibility for costs and for setting aside the conviction on Dean alone. The district court granted this motion. Dean timely appealed both the grant of the habeas petition and the decision to amend the judgment. ⁷ Redner and Butterworth are the appellees.

II. DISCUSSION

A. Constitutionality Of The Ordinance

Dean challenges the district court's grant of Redner's motion for habeas corpus relief. He argues that the Ordinance withstands constitutional scrutiny because it contains adequate procedural safeguards. The district court's ruling that the Ordinance is unconstitutional is a question of law, which we review de novo. United States v. Osburn, 955 F.2d 1500, 1503 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 223, 121 L.Ed.2d 160, and cert. denied, --- U.S. ----, 113 S.Ct. 290, 121 L.Ed.2d 215 (1992).

At the outset, we reject Dean's argument that the activity regulated by the Ordinance is not protected by the First Amendment. We find it well settled that nude dancing is expressive conduct entitled to some degree of First Amendment protection. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion), eight of the nine Justices on the Supreme Court found that non-obscene nude dancing is within the outer perimeter of the First Amendment, albeit minimally so. ⁸ When faced with a fragmented Court, we may distill the various opinions down to their narrowest grounds of concurrence to derive any binding precedent. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); International Eateries of Am., Inc. v. Broward County, 941 F.2d 1157, 1159-61 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). Based on Barnes and other Supreme Court precedent, we find it beyond dispute that the conduct regulated by the Ordinance in the instant case is entitled to some minimal degree of First Amendment protection.

While it enjoys some degree of First Amendment protection, however, nude dancing is not immune from governmental regulation. Even activity protected by the First Amendment can be regulated if the regulation furthers a substantial government interest and constitutes only an incidental limitation on the expressive activity. See United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). In Barnes, for instance, the Supreme Court found that an Indiana statute requiring dancers to wear pasties and G-strings was not an impermissible infringement on the dancers' rights of freedom of expression. 501 U.S. at 567-68, 111 S.Ct. at 2461. The present case differs from Barnes in at least one important respect. While Barnes involved some incidental limitations on the conduct associated with the expressive activity, the instant case presents a complete...