Alexis, Inc. v. Pinellas County, Florida

• Citation: 194 F.Supp.2d 1336
• Decision Date: 29 March 2002
• Docket Number: No. 8:98-CV-672-T-TBM.,8:98-CV-672-T-TBM.
• Parties: ALEXIS, INC.; Blue Diamond Dolls, Inc.; M & L South Enterprises, Inc.; Restaurant Concepts of Clearwater, Inc.; Silk Stockings Enterprises, Inc.; Theresa Lynn Kammer; and John Doe, Plaintiffs, v. PINELLAS COUNTY, FLORIDA; Everett Rice as Sheriff of Pinellas County, Florida; and Pinellas County Department of Consumer Protection, Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1336

194 F.Supp.2d 1336

ALEXIS, INC.; Blue Diamond Dolls, Inc.; M & L South Enterprises, Inc.; Restaurant Concepts of Clearwater, Inc.; Silk Stockings Enterprises, Inc.; Theresa Lynn Kammer; and John Doe, Plaintiffs, v. PINELLAS COUNTY, FLORIDA; Everett Rice as Sheriff of Pinellas County, Florida; and Pinellas County Department of Consumer Protection, Defendants.

No. 8:98-CV-672-T-TBM.

United States District Court, M.D. Florida, Tampa Division.

March 29, 2002.

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David Scott Boardman, Frank de la Grana, P.A., Tampa, FL, John William MacKay, P.A., Tampa, Fl, Luke Charles Lirot, P.A., Tampa, FL, H. Louis Sirkin, P.A., Tampa, FL, for Plaintiffs.

Carl E. Brody, Jr., Pinellas County Atty's Office, Clearwater, FL, for Defendants.

ORDER

McCOUN, United States Magistrate Judge.

THIS MATTER is before the court on Defendant Everett S. Rice's Dispositive Motion for Summary Judgment (Doc. 84), Plaintiffs' response in opposition (Doc. 88), Plaintiffs' Dispositive Motion for Summary Judgment (Doc. 85), and Defendant Rice's response in opposition (Doc. 93). Defendant Pinellas County has failed to respond to either motion.¹ Oral arguments on the motions were heard on June 19, 2001. Plaintiffs' motion is supplemented by affidavits and incorporates by reference factual matters previously asserted in support of their efforts to obtain injunctive relief. See (Docs.10-13, 27, 40).

I.

Plaintiffs Alexis, Inc. (d/b/a "Showgirls"), Blue Diamond Dolls, Inc. (d/b/a "Diamond Dolls"), M & L South Enterprises, Inc. (d/b/a "Gaslight Lounge"), Restaurant Concepts of Clearwater, Inc. (d/b/a "Dancers Show Bar" and "Christine's Cabaret"), and Silk Stockings Enterprises, Inc. (d/b/a "Silk Stockings"), operate adult entertainment establishments in Pinellas County, Florida. By the allegations, Plaintiff Theresa Lynn Kammer was a dancer who performed at one of these establishments, and she purports to represents all dancers similarly situated. Plaintiff "John Doe" purports to represent patrons who attend the performances at such establishments.

Defendants are Pinellas County, Florida, the Pinellas County Department of Consumer

Protection (hereinafter collectively "Pinellas County"), and Everett Rice, in his official capacity as Sheriff of Pinellas County, Florida (hereinafter "Sheriff's Department").

The undisputed facts establish that between 1990 and 1998, the Pinellas County commission enacted several ordinances intended to govern the zoning, licensing, and regulation of adult uses within its boundaries. The principal ordinances at issue in this suit are codified in the Pinellas County Comprehensive Adult Use Regulation Ordinance, Pinellas County Code §§ 42-51, et seq., and the Pinellas County Alcohol and Nudity Ordinance, Pinellas County Code § 6-2 (hereinafter, collectively, "ordinances"). In 1998 and 1999, the Sheriff's Department conducted undercover investigations of Plaintiffs' establishments which resulted in a number of mass arrests of dancers and some male employees and an occasional patron for alleged violations of provisions of the ordinances.² Some of the arrests occurred during specially promoted events. All the arrests were full custodial arrests under Florida law and resulted in the removal of the arrested individuals from the premises. The arrests which resulted in formal criminal charges and convictions were tracked by Pinellas County. By these ordinances, each arrest resulting in a conviction had implications to the licenses of the Plaintiff establishments.

As a consequence of the Sheriff Department's enforcement activities and Pinellas County's regulatory actions, Plaintiffs filed suit seeking declaratory and injunctive relief, as well as damages for alleged violations of their constitutional rights. Specifically, Plaintiffs seek an Order declaring the ordinances unconstitutional and enjoining further enforcement activities upon allegations that the ordinances violate their First, Fourth, Fifth, and Fourteenth Amendment rights. They allege that the ordinances are unconstitutional because they lack a proper predicate and thereby deny Plaintiffs substantive due process (Count I); Ordinance 91-8, Sections 2.8.2, 2.1.6, and 7.3 violate their constitutional rights to be free from unreasonable searches and seizures (Count II); the ordinances grant unbridled discretion to the administrative officer in the enforcement provisions (Count III); they provide for liberal construction and unbridled administrative discretion (Count IV); they constitute an unlawful taking (Count V); the special licensing and zoning provisions for adult entertainment establishments violate equal protection (Count VI); various terms used in the ordinance are unconstitutionally vague (Count VII); the ordinances are unconstitutionally overbroad (Count VIII); and the ordinances were enacted improperly and in violation of Florida Statutes section 125.66 (Count IX). Additionally, Plaintiffs allege that the Sheriff Department's policy, custom, and practice in enforcement of the ordinances are actionable on a claim for damages brought pursuant to 42 U.S.C. §§ 1983 and 1985 (Count X). As for all counts, Plaintiffs seek an award of attorney's fees under 42 U.S.C. § 1988 (Count XI).³

II.

By its motion for summary judgment, the Sheriff's Department first seeks summary judgment on the grounds that Plaintiff corporations lack standing under section 1983. Beyond the standing issue, it denies that its enforcement of the ordinances constituted actionable harassment so as to give rise to a claim under section 1983. More specifically, the Sheriff's Department argues that the arrests were based on probable cause, i.e., the personal observations of members of its vice unit for violations of the ordinances. It further contends that the so-called "raids" or "invasion" of Plaintiffs' premises resulting in "full custodial arrests" were actually reasonable under the circumstances and based upon legitimate law enforcement determinations that such mass arrests were an efficient use of resources and caused the least amount of business interruption at the clubs. Finally, it denies that Plaintiffs establish that the alleged violations were the result of any policies, customs, or practices.

In their response and by their cross motion for summary judgment, Plaintiffs urge that as corporate licensees, they do have standing to bring a section 1983 action. They also assert that the ordinances, as enforced, impose a "chilling effect" on Plaintiffs' properly licensed businesses and that the Sheriff's Department's enforcement actions constitute prior restraints in violation of the First Amendment. Plaintiffs dispute the Sheriff's Department's claim that the multiple raids and full custodial arrests were reasonable and served an interest in efficiency. Instead, they assert that such raids, particularly during specially promoted or "premium" events, were conducted in egregious fashion and with the intent to maximize the harassment and disruption of Plaintiffs' businesses and that such entries were warrantless searches in violation of the Fourth Amendment. Attacking the ordinances themselves, Plaintiffs argue that the subjects included within the ordinances' purview are preempted by Florida Statutes section 847.09. Finally, Plaintiffs urge that various provisions of the ordinances are unconstitutionally vague and overbroad. Relying on this court's rationale in Blue Moon Enterprises, Inc. v. Pinellas County Department of Consumer Protection, 97 F.Supp.2d 1134 (M.D.Fla.2000), they urge that sections 42-108, 42-136, 42-144, and 42-145 of the Pinellas County Code are all unconstitutional.

III.

The court shall grant summary judgment for the moving party only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court may look to "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," in determining whether summary judgment is appropriate. Fed.R.Civ.P. 56(c). The movant bears the exacting burden of demonstrating that there is no dispute as to any material fact in the case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993).

Once the moving party satisfies its burden, the burden shifts to the non-moving party to establish the existence of a genuine issue of material fact. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir.1994). The non-movant must designate specific facts showing a genuine issue for trial beyond mere allegations or the party's perception. See Perkins v. School Bd. of Pinellas County, 902 F.Supp. 1503 (M.D.Fla.1995). It must set forth, by affidavit or other appropriate means, specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).

When deciding a motion for summary judgment, "[i]t is not part of the court's function ... to decide issues of material fact, but rather determine whether such issues exist to be tried ..." and "[t]he court must avoid weighing conflicting evidence or making credibility determinations." Hairston, 9 F.3d at 919 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The only determination for the court in a summary judgment proceeding is whether there exists genuine and material issues of fact to be tried. See Hairston, 9 F.3d at 921; see also Little v. United Technologies, Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.1997). All the evidence and inferences from the underlying facts must be viewed in the light most favorable to the nonmoving party. See Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997).

IV.

A.

As a threshold matter, Defendants challenge corporate Plaintiffs' standing to prosecute...