3299 N. Federal Highway, Inc. v. Board of County Com'rs of Broward County

• Decision Date: 09 September 1994
• Docket Number: Nos. 93-2888,93-2898,s. 93-2888
• Citation: 646 So.2d 215
• Parties: 19 Fla. L. Weekly D1881 3299 N. FEDERAL HIGHWAY, INC. d/b/a Crazy Horse Too, et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, Florida; Broward County, Florida, a political subdivision; Ron Cochran, Sheriff; B. Jack Osterholt, Administrator, Broward County; and Michael Satz, Broward County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 215

646 So.2d 215

19 Fla. L. Weekly D1881

3299 N. FEDERAL HIGHWAY, INC. d/b/a Crazy Horse Too, et al Appellants, v. BOARD OF COUNTY COMMISSIONERS OF BROWARD COUNTY, Florida Broward County, Florida, a political subdivision; Ron Cochran, Sheriff; B. Jack Osterholt, Administrator, Broward County; and Michael Satz, Broward County, Florida, Appellees.

Nos. 93-2888, 93-2898.

District Court of Appeal of Florida,

Fourth District.

Sept. 9, 1994.

Opinion Denying Rehearing

and Certifying Question Nov. 9, 1994.

Opinion Clarifying Decision Nov. 29, 1994.

Charles L. Curtis of Doumar, Curtis, Cross, Laystrom & Perloff, Fort Lauderdale, for appellant-3299 N. Federal Highway, Inc.

Luke Charles Lirot, Clearwater, for appellant-Intern. Eateries of America, Inc.

John J. Copelan, Jr., County Atty., Anthony C. Musto, and Christine M. Duigan, Asst. County Attys., Fort Lauderdale, for appellee-Broward County.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Marc E. Brandes, Asst. Atty. Gen., Hollywood, for appellee-Michael Satz.

PER CURIAM.

This is an appeal from the denial of a motion for temporary injunction. It was sought by two night clubs which feature nude dancing and three dancers from one of the clubs in an action against Broward County to enjoin it from enforcing its newly adopted "Broward County Adult Entertainment Code." We affirm the denial and vacate the stay of enforcement of the ordinance which we had previously entered, pending our disposition of the matter.

The initial brief of one club, 3299, raises two issues, one of which is whether consolidation An appellant who challenges the denial of a temporary injunction has a heavy burden. Reinhold Constr., Inc. v. City Council, Vero Beach, 429 So.2d 699 (Fla. 4th DCA 1983). The trial court's ruling on a motion for temporary injunction is presumed to be correct and will not be overturned absent a clear abuse of discretion. South Florida Limousines, Inc. v. Broward County Aviation Dep't, 512 So.2d 1059, 1062 (Fla. 4th DCA 1987).

would adversely affect the time to be given the merits. It did not. The other issue it raises is whether the hearing in question denied appellant due process. We conclude it did not. The initial brief of the other club, International, and its three dancers, contrary to Florida Rule of Appellate Procedure 9.210(b)(5), contains a laundry list of eleven separate words, phrases or sentences which are shorthand references to doctrines of constitutional law, instead of stating the issues. Notwithstanding this omission, we understood appellants' arguments and have rejected them all.

In order to have been entitled to relief, appellants must have demonstrated in the proceedings below that they met the following requirements for issuance of a temporary injunction:

1. The movant will suffer irreparable harm unless the status quo is maintained;

2. There is no adequate remedy at law;

3. The movant has a clear legal right to the relief requested; and

4. A temporary injunction will serve the public interest.

South Florida Limousines, 512 So.2d at 1061. In our view, appellants have not made their case on any of the above criteria. We opt to discuss only two.

I

Appellants' claims of economic losses, even if proven, do not constitute irreparable harm because the amounts lost or expended can be calculated after the fact and be fully compensated by money damages. South Florida Limousines, 512 So.2d at 1062; Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365, 366 (Fla. 4th DCA 1968).

3299 argues in its initial brief that it offered evidence that the value of these business losses could not be determined, seeking application of the principle discussed in Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735, 738-39 (Fla. 3d DCA 1982), that where it is difficult or impossible to measure the dollar amount of the potential loss, money damages are inadequate and the harm is deemed irreparable. The only evidence to which it points in support of this theory are the affidavits of two of its dancers who allege that they intend to quit if customers are not permitted to have physical contact with the garters that they wear on their thighs for the purpose of collecting tips, along with similar allegations contained in its verified complaint that the dancers will not be able to earn a living if they cannot accept tips.

We find three reasons to reject their argument--any of which is sufficient to do so. First, this evidence does not demonstrate that this potential loss cannot be calculated. Second, the loss of tips would be suffered by non-parties, not appellant 3299 (none of the 3299 dancers were parties to the action in the trial court). While the rights of third parties in a proper case may be asserted by a party who alleges a chilling effect on constitutionally protected speech or expression, the rights asserted by 3299 on behalf of its dancers are purely economic. ATS Melbourne, Inc. v. City of Melbourne, 475 So.2d 1257, 1260 (Fla. 5th DCA 1985) (zoning case), citing, Young v. American Mini Theaters, 427 U.S. 50, 60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310, 320 (1976). Finally, the Code does not prohibit tipping, provided that the act of tipping does not involve a customer's either entering the buffer zone around the stage or touching those parts of the dancer's body for which employee-customer contact is prohibited.

3299 argues that the possibility of criminal prosecution under the terms of the ordinance constitutes irreparable harm. This argument was rejected in Palenzuela v. Dade County, 486 So.2d 12 (Fla. 3d DCA 1986). The third district reasoned that the The International dancers assert the loss of their right to artistic expression, while International argues that it will be unable to participate commercially in its dancers' art. The United States Supreme Court has held that while the expressive content of nude dancing is slight, it may be entitled to some degree of first amendment protection under certain circumstances. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504, 511 (1991). See also Lawrence v. Knowles, 533 So.2d 796, 797 (Fla. 4th DCA 1988) (Glickstein, J., concurring specially).

party seeking the injunction would have an adequate remedy at law in the event that criminal charges were brought, since the legal arguments that were raised in the motion for injunction could be argued in defense of the prosecution for the ordinance violation. Id. at 13, citing, Louisville & N.R. Co. v. Railroad Comm'rs, 63 Fla. 491, 58 So. 543 (1912). We agree. ¹

However, when such artistic activity is merely incidental to a commercial endeavor, it may not be entitled to the protection that it would otherwise be guaranteed. City of Miami Springs v. J.J.T., Inc., 437 So.2d 200, 206 (Fla. 3d DCA 1983). International's claim to the right to "engage in the commercial manifestations of freedom of expression" is therefore particularly weak.

It should be remembered that the ordinance does not prohibit nude dancing per se. ² It restricts only the extent of physical contact with and proximity to patrons that occurs in the course of such public or private performances. None of appellants, either the corporations or the dancers, asserted in the proceedings before the trial court that physical contact with patrons is a necessary or even an integral part of their art. ³

Under the principles set forth above, the performers and to a lesser extent the business owners do have a constitutionally protected right to freedom of expression which is implicated in nude or "adult" dancing. The County acknowledged in the ordinance itself that increasing the distance between the performer and the audience may dilute the message of the performance. At least two federal courts have recognized that this type of regulation may impair constitutionally-protected expression, but both courts concluded that they placed only slight burdens upon first amendment rights which were overcome by countervailing public interests. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1061-62 (9th Cir.1986); T-Marc, Inc. v. Pinellas County, 804 F.Supp. 1500, 1506-07 (M.D.Fla.1992) (finding no demonstration of likelihood of prevailing even when first amendment issues were argued).

While it appears that first amendment rights may well be impaired, at least to some extent, by restrictions on a performer's ability to include members of the audience in her act or to maintain a level of physical closeness with her audience, we conclude that appellants have not demonstrated (or even alleged) that their rights to freedom of artistic expression include physical contact with customers, the minimization of the distance from the audience, or are otherwise dependent upon factors that are restricted or regulated While appellants have sufficiently identified first amendment rights which cannot be valued monetarily, they have failed to demonstrate that the Code poses a threat of harm to those rights, therefore they have not met the first prong of the South Florida Limousines test--that they will suffer irreparable harm if the County is allowed to enforce the Code. 512 So.2d at 1061.

by the Code. They have alleged only that the restrictions will have an economic impact (loss of business and tips).

II

In order to meet the "clear legal right" test, the proponent of the injunction must demonstrate that it has a substantial likelihood of success on the merits. Reinhold. Appellants argue that the Code is unenforceable because it is unconstitutional and/or because it was improperly adopted. Because this court is reviewing the denial of a preliminary injunction, not a final order, the question is not whether the ordinance is unconstitutional or otherwise unlawful, but whether appellants established that they were likely to prevail on one or more of their claims that the ordinance is unenforceable. Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d...