Albanese Enters., Inc. v. City of Jacksonville, Case No. 3:13-cv-1471-J-34MCR

• Decision Date: 14 February 2014
• Docket Number: Case No. 3:13-cv-1471-J-34MCR
• Parties: ALBANESE ENTERPRISES, INC., Plaintiff, v. CITY OF JACKSONVILLE, Defendant.
• Court: U.S. District Court — Middle District of Florida

ALBANESE ENTERPRISES, INC., Plaintiff, v. CITY OF JACKSONVILLE, Defendant.

Case No. 3:13-cv-1471-J-34MCR

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

DONE AND ORDERED: February 14, 2014

ORDER

THIS CAUSE is before the Court on Plaintiff's Verified Motion for Preliminary Injunction and Incorporated Memorandum of Law (Doc. 2; Motion) filed on December 2, 2013. Plaintiff also filed a request for oral argument on the Motion. See Plaintiff's Request for Oral Argument on Verified Motion for Preliminary Injunction (Doc. 3; Request for Oral Argument). On December 18, 2013, Defendant City of Jacksonville (the City), filed Defendant City of Jacksonville's Response in Opposition to Plaintiff's Motion for Preliminary Injunction (Doc. 14; Response). In accordance with the Court's briefing schedule, see Order (Doc. 9), on January 3, 2014, Plaintiff Albanese Enterprises, Inc. (Albanese) filed Plaintiff's Reply to Defendant's Response in Opposition to Motion for Preliminary Injunction (Doc. 17; Reply). The parties then filed a motion requesting that the Court consolidate the preliminary injunction hearing with the trial on the merits because "this case presents pure questions of law and is ripe for this Court's consideration on the merits, without the need for any discovery." See Joint Motion to Consolidate Hearing on Preliminary Injunction with Trial on Merits Pursuant to Rule 65(A)(2), Fed.R.Civ.P. (Doc. 21; Joint Motion to Consolidate), filedJanuary 13, 2014. The Court granted the Joint Motion to Consolidate on January 14, 2014. See Order (Doc. 22).¹ On January 22, 2014, the Court held the consolidated motion hearing and trial. See Minute Entry (Doc. 23; Hearing).² At the Hearing, the parties agreed that the Court should render final judgment in this case based on the current record. Accordingly, this matter is ripe for review.

I. Factual Background³

Albanese seeks to open a "bikini bar" at a property located at 8669 Baymeadows Road, Jacksonville, Florida (the Subject Property). See Complaint for Declaratory Judgment and Injunctive Relief (Doc. 1; Complaint) ¶¶ 8, 10. This establishment "will, inter alia, feature non-nude entertainment by dancers performing choreographed routines to music." Id. ¶ 10. Albanese also intends to "sell and serve both food and alcoholic beverages to its customers." Id. According to Albanese, the dancers will engage in expressive activity "performed before a consensual audience, all over the age of 18 years, desirous of receiving and enjoying the message conveyed by the entertainer of normal human sexual interest and sensual subtleties." Id. ¶ 13. However, "the dancing will not feature nude or semi-nude entertainment" as regulated by Chapter 150 of the Jacksonville, Florida Ordinance Code (the Code). Id. ¶ 16. Instead, the "bikini bar" will be a "dancing entertainment" business definedand regulated in Chapter 151 of the Code. Id. ¶¶ 8, 15, 19. Specifically, section 151.103 provides that:

Dancing entertainment establishment means any establishment where any worker dances and accepts any consideration, tip, remuneration or compensation from or on behalf of a customer. A dancing entertainment establishment shall not include any theater, concert hall, art center, museum or similar establishment that is primarily devoted to the arts or theatrical performances as defined in Section 150.103.

See Code § 151.103(a); Complaint, Ex. A at 2. To operate such an establishment, an entity must first obtain a license from the Sheriff. See Code § 151.202(a); Complaint, Ex. A at 4. Albanese has obtained the required license, and does not challenge the licensing requirements set forth in Chapter 151. See Complaint ¶¶ 18-19, Ex. B; Motion at 1-2.

The property at issue here is located in a Commercial Community/General-1 (CCG-1) zoning district as defined in Code Chapter 656 (the Zoning Code). See Complaint ¶ 11, Ex. D. Pursuant to the City's Zoning Code, the operation of "[d]ancing entertainment establishments not serving alcohol" is a permitted use by right for property zoned CCG-1. See Code § 656.313(A)(IV)(a)(23); Complaint, Ex. D at 11. Accordingly, having obtained a license to do so, Albanese can lawfully open an establishment at the Subject Property which serves food and provides dancing entertainment. See Complaint ¶ 33 ("[T]he subject property . . . is properly zoned for a dancing entertainment establishment (by right), but a special exception would be required to serve alcohol at such an establishment."); id., Ex. J.

However, Albanese seeks to serve alcohol at this property as well. In a CCG-1 zoning district, "[a]n establishment of a facility which includes the retail sale and service of all alcoholic beverages including liquor, beer or wine for on-premises consumption or off-premises consumption or both" is a "permissible use by exception." See Code §656.313(A)(IV)(c)(1); Complaint, Ex. D at 11. The process and criteria for obtaining zoning exceptions is set forth in Part I, Subpart D of the Zoning Code. See Code § 656.131; Complaint, Ex. E. The City's Planning Commission reviews and considers applications for zoning exceptions at public hearings and is vested with the authority to approve or deny the applications. See Complaint ¶ 26. In Application No. E-13-33, Albanese applied for a zoning exception allowing for "retail sale and service of all alcoholic beverages for on-premises consumption at the [S]ubject [P]roperty . . . ." Id. ¶ 27, Ex. F at 1. The Planning and Development Department (Planning Department) recommended approval of the application, noting that "[t]he applicant intends to operate a restaurant on the premises . . . ." Id., Ex. F at 4. On August 15, 2013, the Planning Commission approved the application.⁴ Id., Ex. F at 2.

Although Albanese is licensed and properly zoned to provide dancing entertainment, and authorized via a zoning exception to serve alcohol, it still cannot open the bikini bar. See Complaint ¶¶ 35-37. Pursuant to the Zoning Code, dancing entertainment establishments serving alcohol are enumerated as "permissible uses by exception" in CCG-1 districts. See Code § 656.313(A)(IV)(c)(17). Likewise, Part 8 of the City's Zoning Code, which governs alcoholic beverages, provides that "[a] zoning exception shall be required any time one or more principle uses allowed by right in any zoning district is combined with any use regulated under this Part." See Code § 656.808(e).⁵ Thus, Albanese must obtain anadditional zoning exception to operate as a dancing entertainment establishment which serves alcohol. See Complaint ¶ 33, Ex. J. Albanese applied for the exception and on November 14, 2013, the Planning Commission denied Albanese's application for a "dancing entertainment establishment serving alcohol" zoning exception. See id. ¶ 39, Ex. L. Following this denial, Albanese initiated the instant action on November 27, 2013. See generally Complaint. In the Complaint, Albanese seeks a declaratory judgment that Ordinance 2007-1047-E, which enacted the Zoning Code provisions affecting Albanese, is unconstitutional under the First and Fourteenth Amendments. Id. at 15. Albanese also requests that the Court enter a permanent injunction enjoining the enforcement of this Ordinance. Id. at 15, 18.

On January 22, 2008, the City Council enacted Ordinance 2007-1047-E (the Ordinance) in which it made certain changes to the Code with respect to dancing entertainment establishments. See id. ¶ 32, Ex. I. Specifically, in the Ordinance, the City amended the definition of "dancing entertainment establishment" in Chapter 151. See id., Ex. I: Ordinance, sec. 3. A "dancing entertainment establishment" was previously defined in relevant part as "any establishment at which alcoholic beverages are, or are able to be sold, dispensed, consumed, possessed or offered for sale or consumption on the premises and where any worker dances and accepts any consideration, tip, remuneration or compensation from or on behalf of a customer."⁶ See id. The Ordinance changed the definition of a "dancing entertainment establishment" to its current form by removing therequirement that the establishment sell or offer alcoholic beverages for sale or consumption on the premises. See id. ¶ 31, Ex. I: Ordinance, sec. 3.

In addition, in the Ordinance, the City added "dancing entertainment establishments not serving alcohol" as a permitted use by right and "dancing entertainment establishments serving alcohol" as a permitted use by exception in CCG-1 and CCG-2 zoning districts. See id. ¶ 30, Ex. I: Ordinance, sec. 4. Prior to these changes, dancing entertainment establishments were governed solely through the licensing procedures of Chapter 151, as the City Code did not have "any special zoning regulations for 'dancing entertainment establishments.'" See Complaint ¶ 20. The City also added subsection (e) to section 656.808 of the Code. Subsection (e) requires a zoning exception anytime a principle use allowed by right in the Zoning Code is combined with a use regulated under the Alcoholic Beverages Chapter. See id., Ex. I: Ordinance, sec. 5; see also id., Ex. C. Finally, in section 6 of the Ordinance, the City added definitions for a "dancing entertainment establishment" and "principle use" to the definitions provision of the Zoning Code. See Complaint, Ex. I: Ordinance, sec. 6.⁷

In a November 2007 report and recommendation regarding proposed changes to the Zoning Code, the City's Planning Department offered a justification for various changes. See Complaint, Ex. H. Specifically, the report addresses a prior version of the Ordinance which would have amended only the Alcoholic Beverages portion of the Code to require a zoning exception if "adult entertainment, dance entertainment or pari-mutual use" is added to anypremises with a consumption-on-premises alcohol license. See Complaint, Exs. G-H. In a section titled "The need and justification for the change," the report states that "[t]he service of alcohol...