Bayside Enterprises, Inc. v. Carson

• Decision Date: 17 May 1979
• Docket Number: 78-898-Civ-J-M.,No. 78-889-Civ-J-M,78-889-Civ-J-M
• Citation: 470 F. Supp. 1140
• Parties: BAYSIDE ENTERPRISES, INC., et al. v. Dale CARSON, etc. Charles Grady KELLER and Daytona International, Inc., a Florida Corporation v. CONSOLIDATED CITY OF JACKSONVILLE, etc., et al.
• Court: U.S. District Court — Middle District of Florida

470 F. Supp. 1140

BAYSIDE ENTERPRISES, INC., et al. v. Dale CARSON, etc.

Charles Grady KELLER and Daytona International, Inc., a Florida Corporation v. CONSOLIDATED CITY OF JACKSONVILLE, etc., et al.

Nos. 78-889-Civ-J-M, 78-898-Civ-J-M.

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

May 17, 1979.

Norman J. Abood, Jacksonville, Fla., for plaintiffs in No. 78-889-Civ-J-M.

William L. Allen and Grady W. Martin, Asst. Counsels, Jacksonville, Fla., for defendant in No. 78-889-Civ-J-M.

Barry L. Zisser, Jacksonville, Fla., for plaintiffs in No. 78-898-Civ-J-M.

Dawson A. McQuaig, General Counsel and Grady W. Martin, Asst. Counsel, Jacksonville, Fla., for defendants Consolidated City and Dale Carson.

Laurence C. Pritchard, Jacksonville, Fla., for defendant T. Edward Austin.

OPINION

MELTON, District Judge.

These consolidated cases¹ are before the Court for final judgment on the plaintiffs' petitions for declaratory relief and a permanent injunction against enforcement of recently-enacted amendments to the Jacksonville Municipal Code. Specifically, the case involves a new chapter to be added to the municipal code, Chapter 410, styled the "Adult Entertainment and Services Code" (hereinafter referred to as "the Adult Entertainment Code", or more simply as "the Code"). This municipal legislation attempts to impose a broad regulatory system upon local businesses that operate in the adult entertainment field; these particular plaintiffs offer for public consumption adult-oriented, sexually explicit books, magazines and films.² Jurisdiction is grounded upon the substantive provisions of 42 U.S.C. § 1983 (1976) and its jurisdictional counterpart, 28 U.S.C. § 1343 (1976), and declaratory relief is requested under 28 U.S.C. § 2201 (1976).

A prior version of this legislation was before this Court a year ago in Bayside Enterprises, Inc. v. Carson, 450 F.Supp. 696 (M.D.Fla.1978) (hereinafter "Bayside I"). In Bayside I, this Court concluded that numerous provisions of the Code could not withstand constitutional scrutiny, and entered relief accordingly. Id. In the wake of that decision, the defendants (hereafter collectively referred to as "the City") passed amendments to the Code in an attempt to align its provisions with the Constitution. This litigation was initiated prior to the occurrence of any enforcement measures by the City, and the parties immediately stipulated to a continuation of the status quo pending resolution of this case. Thus, the doctrines of abstention and equitable restraint are inapplicable, see Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), and the City in fact does not contend otherwise.

Generally, the Code imposes a regulatory scheme on the local adult entertainment industry through a licensing mechanism.³ Adult entertainment businesses are required to have a license to operate, and license violations (including failure to obtain a license in the first place) can result in both civil and criminal sanctions. The plaintiffs allege numerous constitutional defects in this system. They contend that the provisions governing the granting of an adult entertainment license constitute an impermissible prior restraint due to certain license prerequisites and sanctions; that the disclosure provisions of the license application system infringe upon constitutionally protected areas; that the license fees called for by the Code are impermissibly high; and that the procedures for judicial review of licensing decisions are constitutionally inadequate. In support of these contentions, the plaintiffs variously assert the terms of the first, fourth, fifth, and fourteenth amendments to the United States Constitution.

On February 9, 1979, the Court held a one-day bench trial to develop the factual issues in this case. Following post-trial briefing by the parties, the case is now ripe for adjudication. The plaintiffs' contentions will be treated in the order delineated in the preceding paragraph.

LICENSE DISQUALIFICATION

The plaintiffs contest the constitutionality of certain Code provisions that mandatorily disqualify license applicants under certain circumstances. Specifically, section 410.204(b) declares that no license shall be granted to "any person who has been convicted of a specified criminal act within five years of the date of application."⁴ In turn, section 410.103(m) defines "specified criminal act" to include

any violation of the Code; soliciting for prostitution, pandering, prostitution, keeping a house of ill fame, lewd and lascivious behavior, exposing minors to harmful materials, distributing obscene materials, possession of obscene materials, transporting obscene materials or sale or possession of a controlled substance or narcotic; or any felony under the laws of this State, the United States or any other state.

Even after a license has been issued, commission of a "specific criminal act" may be grounds for revoking a license under the Code; section 410.212(a) provides in pertinent part that

the Sheriff is given full power to suspend or revoke any license issued under this chapter, where the Sheriff determines, upon sufficient cause, that:

(1) the licensee, his or its agents, officers, servants or employees, on the licensed premises, or elsewhere while in the scope of employment, committed a specified criminal act.

In fact, an actual conviction of a "specified criminal act" is not required before the Sheriff may revoke a license. As the language quoted above demonstrates, the Sheriff may revoke a license when he determines, "upon sufficient cause", that a "specified criminal act" has been committed. Furthermore section 410.212(a) goes on to state that

whether or not the licensee, his or its agents, officers, servants or employees have been convicted of any such specified criminal act or violation shall not be considered in proceedings before the Sheriff for suspension or revocation of license.

(Emphasis added.) Clearly, then, the Code authorizes the Sheriff to revoke an adult entertainment license, predicating that revocation on "sufficient cause" to believe that the licensee has committed a specified criminal act, regardless of whether the licensee has actually sustained a criminal conviction as a result thereof.

The constitutional problems inherent in such a scheme were highlighted by this Court in Bayside I. 450 F.Supp. at 708-09. In that case, however, the question was inappropriate for adjudication because the plaintiffs lacked standing to raise the issue, since there was no showing that the Code's "specified criminal act" provisions would in any way affect the Bayside I plaintiffs. Id. This case is before the Court in an entirely different posture. The plaintiff Keller has testified, and the City does not deny, that within the last five years he has sustained a criminal conviction under the Florida obscenity statute, Fla.Stat. § 847.011 (1978). Under any imaginable construction of Code section 410.204(b), this conviction will bar Keller from obtaining an adult entertainment license from the City. Undeniably, then, he has standing to challenge this portion of the Code.

Like all forms of speech that have not been judicially found otherwise, the motion pictures and books marketed by these plaintiffs are entitled to a presumption of first amendment protection. In the present context, this means that the materials to be marketed by these plaintiffs are presumptively non-obscene, and thus protected in their dissemination by the first amendment. The effect of Code section 410.204(b), then, is this: any person who has committed a "specified criminal act" within five years of the date of his license application cannot lawfully disseminate sexually explicit, though presumably non-obscene, forms of expression. As previously noted, unlicensed dissemination can lead to both civil and criminal sanctions under the Code.

The starting point for the Court's analysis of these Code provisions is the landmark case of Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Near involved the constitutionality of a Minnesota statute that allowed state authorities to obtain a permanent injunction, on a public nuisance theory, barring the future publication of a periodical that was found to be "obscene, lewd and lascivious" or "malicious, scandalous and defamatory." Id. at 702, 51 S.Ct. 625. On the basis that past issues of the publication in question, The Saturday Press, had been libelous, the Near trial court had permanently enjoined the publishers from "producing, editing, publishing, circulating, having in their possession, selling or giving away any publication whatsoever which is a malicious, scandalous, or defamatory newspaper," and also "from further conducting said nuisance under the name and title of said The Saturday Press or any other name or title." Id. at 706, 51 S.Ct. at 627. After the trial court's injunction had been affirmed in the Minnesota courts, the Supreme Court granted certiorari and reversed. Observing that libelous publications are susceptible of both civil and criminal remedies after their dissemination, the Court distinguished these remedies from the pre-dissemination injunction in Near. As the Court stated, "the statute in question . . . provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction — that is, for restraint upon publication." Id. at 715, 51 S.Ct. at 631. On that basis, the Court held the statute unconstitutional.

Near clearly stands for the proposition that even in those cases in which a publisher can be shown to have disseminated unprotected materials on past occasions, he cannot be prospectively barred from the exercise of his first amendment rights. As the Court observed in distinguishing the Near statute from the New York statute upheld in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957),

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