Café Erotica of Florida v. St. Johns County
| Decision Date | 23 February 2004 |
| Docket Number | No. 02-16718.,No. 03-11385.,02-16718.,03-11385. |
| Parties | CAFÉ EROTICA OF FLORIDA, INC., a Florida Corporation, Café Erotica / We Dare To Bare / Adult Toys / Great Food / Exit 94, Inc., a Florida Corporation, Plaintiffs-Counter-Defendant-Appellees, v. ST. JOHNS COUNTY, a political subdivision of the State of Florida, Defendant-Counter-Claimant-Appellant. Cafe Erotica/We Dare To Bare/Adult Toys/Great Food/Exit 94, Inc., a Florida Corporation, Plaintiff-Appellee, v. St. Johns County, a political subdivision of the State of Florida, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Susan Smith Erdelyi, Sonya Harrell Hoener, Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, FL, for St. Johns County.
Gary S. Edinger, Gainesville, FL, for Café Erotica of Florida, Inc.
William David Brinton, Allen, Brinton & Simmons, P.A., Jacksonville, FL, for Scenic America, Inc. and Citizens for a Scenic Florida, Inc., Amici Curiae.
Appeals from the United States District Court for the Middle District of Florida.
Before DUBINA, WILSON and KRAVITCH, Circuit Judges.
I. BACKGROUND
This appeal consolidates two cases involving facial and as-applied challenges to the St. Johns County, Florida, sign ordinance ("Ordinance" or "Ordinance 99-51"), codified as Article VII of the St. Johns County Land Development Code ("LDC"). Each case presents identical legal issues. We review the grant of summary judgment in favor of appellees, Café Erotica of Florida, Inc. ("Café" or "Café Erotica"), and Café Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. ("We Dare to Bare").
The first case involves Café Erotica, an adult entertainment establishment in St. Johns County ("County"), Florida. Café has advertised its business on billboards located along Interstate 95. County officials issued several citations to Café for constructing signs on its business premises, advertising on the side of a truck, and erecting "political message" banners1 without following the County's required permitting procedures. On June 19, 1998, Café challenged the then-current St. Johns County sign ordinance, Ordinance 90-9. The district court issued a preliminary injunction against its enforcement. The County subsequently passed four new versions of its sign ordinance, finally enacting Ordinance 99-51.
In the other case, We Dare to Bare brought a facial challenge against Ordinance 99-51, and also alleged that the County applied Ordinance 99-51 against it in an unconstitutional manner with respect to a billboard it erected along Interstate 95. We Dare to Bare argued that the County took an impermissibly long time to render its licensing decision and imposed additional requirements upon it not imposed on similarly situated businesses.2
Both district courts permanently enjoined the County from enforcing Ordinance 99-51 and granted summary judgment to the plaintiffs. Each district court declared Sections 7.00.01,3 7.00.08,4 and 7.03.015 of Ordinance 99-51 unconstitutional, and determined that these sections could not be severed from the rest of Article VII of the LDC.6
The district courts confined their analyses to Ordinance 99-51. However, after enacting Ordinance 99-51, the County amended its sign regulation, enacting Ordinance 01-34 on May 15, 2001. We Dare to Bare attempted to challenge Ordinance 01-34, arguing that it is substantively the same as the predecessor law and contains the same constitutional flaws. Rather than having the parties amend their pleadings, the district court ruled only on the constitutionality of Ordinance 99-51, as the challenged provisions of Ordinance 99-51 were substantially the same under the new ordinance. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000) ( ") (quoting Naturist Soc'y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir.1992)). Thus, we consider only the constitutionality of Ordinance 99-51 in this appeal. Specifically, we consider appellees' facial challenges to sections 7.00.01, 7.00.08, and 7.03.01 of Ordinance 99-51, taking into account other provisions that may affect the constitutionality of those provisions.
Appellees assert two facial challenges. First, they argue that Ordinance 99-51 is a content-based restriction on speech because certain provisions favor commercial speech over political speech. Specifically, appellees argue that because the Ordinance limits "political message signs" to thirty-two square feet while allowing commercial billboards to be as large as 560 square feet, the County impermissibly discriminates against political speech. Second, appellees argue that the permitting requirements of Ordinance 99-51 act as an unconstitutional prior restraint because the Ordinance does not contain the required procedural protections for licensing schemes pursuant to FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
The County responds that Ordinance 99-51 is a constitutional content-neutral ordinance. Under the County's reading of the Ordinance, both on-premise and off-premise signs can contain commercial and noncommercial content. Thus, according to the County, political messages can be placed on billboards. The County admits that it regulates various types of signs differently, but contends that any differences in treatment are due solely to content-neutral factors related to safety and aesthetics. The County believes that nothing in the Ordinance "allows" it to deny a permit based on a sign's content. The County, however, admits that because the Ordinance treats different types of signs differently, the content of a sign must be "considered for determining the location and duration of a sign."
II. APPLICABLE ORDINANCE PROVISIONS
Ordinance 99-51 requires anyone wishing to erect a sign larger than fifteen square feet in area to obtain a sign permit. See LDC § 7.00.01 & § 3.09.08. Further, the LDC requires a permit for all outdoor advertising displays.7 Café's banner is a "sign" within the above definition, as are the billboards that Café wishes to construct. Thus, Café would have to obtain a permit before erecting these structures. The County Administrator of St. Johns County ("County Administrator") makes all permitting decisions in accordance with the Standard Building Code.8 See LDC § 7.00.01.
Appellees challenge various sections of the Ordinance setting forth the time in which the County must perform its obligations. Ordinance 99-51 states:
Applications for Sign Permits shall be approved or denied, by the County Administrator, within fourteen (14) days of submittal of a fully completed application. If more information is required from the applicant ..., the fourteen (14) day period shall run from receipt of that additional information. If the applicant certifies in writing that the application is complete, the fourteen (14) day period shall run from the date of the County's receipt of that writing.
Any permitting decision may be appealed to the Board of County Commissioners within thirty days of the decision. The Board of County Commissioners has fifteen days to render a written decision. See LDC § 7.00.08. This decision may be appealed to the Circuit Court within thirty days. The Ordinance states, "[i]n any case where the message or content of the proposed Sign affected the denial of the permit, the County shall bear the cost of initiating the case with the Circuit Court and shall also bear the burden of justifying the denial." Id. (emphasis added).
Ordinance 99-51 contains a general severance provision stating, "[i]f any section, phrase, sentence, or portion of this Ordinance or the Code is for any reason held invalid or unconstitutional ... such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions thereof." Ordinance 99-51 Recitals, ¶ 7.
Ordinance 99-51 regulates different types of signs differently, including the following sign categories: (1) billboards; (2) on-premise signs; and (3) "special use signs," which include "political message signs."
Part 7.01 regulates billboards. Billboards are limited to thirty-five feet in height, and can be as large as 378 square feet — or 560 square feet if located along the interstate. See LDC § 7.01.03(A)-(B). Billboards are defined as signs "over thirty-two (32) square feet in size that [are] used for off-premise outdoor advertising and display," and they also include on-premise signs that exceed 300 square feet. LDC § 12.01.00 (emphasis added). The Ordinance defines "advertising message" as including not only commercial messages, but also "political copy intended to directly or indirectly promote a candidate or issue." LDC § 12.01.00.
Billboards are subject to greater restrictions than on-premise signs with regard to the number of billboards and their location. Compare LDC § 7.01.01(A) () with LDC § 7.02.01(A) ().
Section 7.01.01(C) concerns severability of the billboard provisions. It states, "[i]f any of the provisions of this Code, including [provisions] pertaining to permitting new...
To continue reading
Request your trial
-
Action Outdoor Advert. v. Town of Shalimar, Fla.
...Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-66, 100 S.Ct. 2343, 2350-51, 65 L.Ed.2d 341 (1980)); Cafe Erotica, 360 F.3d at 1286 n. 14. The Supreme Court has also instructed that the "party seeking to uphold a restriction on commercial speech carries the burden of......
-
Wacko's Too, Inc. v. City of Jacksonville
...Courts have found that procedural safeguards were satisfied in various licensing schemes. Cf., Cafe Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1274, 1282–83 (11th Cir. 2004) (finding that a licensing scheme satisfied time limit and prompt judicial review requirements, though it was u......
-
Solantic, LLC v. City of Neptune Beach, No. 04-12758.
...using flashing lights or moving parts — it constitutes content-based regulation of speech. See Café Erotica of Fla., Inc. v. St. John's County, 360 F.3d 1274, 1289 (11th Cir.2004) (holding that limiting signs displaying political messages to a smaller size than signs displaying other types ......
-
Coral Springs Street Systems v. City of Sunrise, No. 03-11497.
...signs," and "political signs"). 17. Contrary to the Coral Springs' claims, our recent decision in Café Erotica of Florida, Inc. v. St. Johns County, 360 F.3d 1274 (11th Cir.2004), is consistent with this analysis. In that case, we struck down the St. Johns County sign ordinance that we inte......