Bayside Enterprises, Inc. v. Carson

• Decision Date: 18 May 1978
• Docket Number: 77-653-Civ-J-M.,No. 77-633-Civ-J-M,77-633-Civ-J-M
• Citation: 450 F. Supp. 696
• Parties: BAYSIDE ENTERPRISES, INC., et al. v. Dale CARSON et al. ELLWEST STEREO THEATRES, INC., a Florida Corporation, v. CONSOLIDATED CITY OF JACKSONVILLE et al.
• Court: U.S. District Court — Middle District of Florida

450 F. Supp. 696

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

ELLWEST STEREO THEATRES, INC., a Florida Corporation, v. CONSOLIDATED CITY OF JACKSONVILLE et al.

Nos. 77-633-Civ-J-M, 77-653-Civ-J-M.

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

May 18, 1978.

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Norman J. Abood, Jacksonville, Fla., for plaintiff Bayside Enterprises, et al., in case no. 77-633-Civ-J-M.

William J. Sheppard, Jacksonville, Fla., for plaintiff Ellwest Stereo Theatres, Inc., in case no. 77-653-Civ-J-M.

Eve Peck, Asst. Gen. Counsel, City of Jacksonville, Jacksonville, Fla., for defendants Consolidated City of Jacksonville and Dale Carson.

Frank Tassone, Jr., Asst. State Atty., Jacksonville, Fla., for defendant T. Edward Austin.

OPINION AND ORDER DECLARING CERTAIN PROVISIONS OF THE JACKSONVILLE ADULT ENTERTAINMENT CODE CONSTITUTIONAL, CERTAIN OTHER PROVISIONS UNCONSTITUTIONAL, AND PARTIALLY GRANTING REQUESTED INJUNCTIVE RELIEF

MELTON, District Judge.

These cases are before the Court for final judgment on a complaint alleging the unconstitutionality of a recently-enacted Jacksonville ordinance that seeks to regulate a wide range of businesses designated by the ordinance as "Adult Entertainment and Services." The plaintiffs are four corporations and one individual who operate businesses that would be subject to regulation under the ordinance.¹ The defendants are the City of Jacksonville and various Jacksonville officials, sued in their official capacities, who are charged with enforcement responsibilities under the ordinance. As a basis for this Court's jurisdiction, the plaintiffs invoke the substantive provisions of 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343 (1976); the plaintiffs also request declaratory relief under 28 U.S.C. § 2201 (1976).

The ordinance in question is a comprehensive enactment that makes two basic changes in the Jacksonville Municipal Code. First, the ordinance adds to the Municipal Code a new chapter, Chapter 410, styled the "Adult Entertainment and Services Code," that imposes a broad regulatory scheme (in the form of a licensing system) upon various businesses that operate in the adult entertainment field, including adult bookstores and motion picture theaters. Second, the ordinance amends certain provisions of the Jacksonville Zoning Code purportedly to provide for the geographic dispersal of adult entertainment establishments. Hereinafter the Court will refer to both parts of the ordinance as the "Adult Entertainment Code", or more simply as "the Code."

ABSTENTION

Initially, the defendants (hereinafter the City) assert that this Court should dismiss this suit under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny.² Although admitting that no criminal prosecutions under the Code are now pending in the state courts, the City nonetheless asserts that Younger principles of "comity and federalism" dictate that the Court dismiss this case.

At least insofar as the City's Younger argument pertains to adult bookstores and movie houses, it is unpersuasive. As previously noted, the City has not called to the Court's attention any prosecution, civil or criminal, presently pending in state court that would adjudicate the constitutional rights of adult bookstore and motion picture proprietors under the Code. To the extent that the plaintiffs seek an adjudication of their rights as operators of adult bookstores and movie houses, then, the absence of pending state proceedings renders Younger-type dismissal inappropriate. See Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646 (5th Cir. 1978).

Insofar as the City requests that this Court abstain from ruling on the constitutionality of the Code's application to "topless" cabarets, however, a different question is presented. One of the plaintiffs in case number 77-633-Civ-J-M, Bobbie Paul Miles, is presently litigating in the state courts the constitutionality of the Code's provisions governing topless dancing establishments. The state court has, in fact, granted plaintiff Miles an injunction pendente lite against the enforcement of the Code's topless dancing restrictions, and as far as this Court's records indicate, the state case is still under active consideration at the trial stage. Although the state case will not involve any other Code provisions, its existence does mitigate against this Court's exercise of its jurisdiction to adjudicate the claims, raised by Mr. Miles, against the Code's regulation of topless cabarets. Under the circumstances, the posture of plaintiff Miles' claims before this Court is indistinguishable from that of the plaintiff in Cornwell v. Ferguson, 545 F.2d 1022 (5th Cir. 1977), wherein the federal plaintiff "freely and voluntarily chose to first seek relief from the state court." Id. at 1024. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Accordingly, this Court's adjudication on the merits of this case will exclude any consideration of the Code's provisions governing topless dancing establishments. In all other respects, Younger abstention is inappropriate. With this preliminary matter disposed of, then, the Court now turns to the merits of the plaintiff's claims.

RESIDENCY REQUIREMENTS

In section 410.204(a), the Code requires that in order to be eligible for a license, an applicant must be (inter alia) a resident of the city. When the applicant is a partnership, a majority of the general partners must reside in the city; similarly, for corporate applicants a majority of the "officers, directors and principal stockholders" must reside locally. Additionally, section 410.404(a) requires that all employees of a licensed operation be local residents. In its post-trial brief, the City has conceded the unconstitutionality of the Code's residency requirements; accordingly, those provisions are hereby declared unconstitutional, and their enforcement will be enjoined.

ZONING

The City seeks to justify its zoning scheme under the rationale of the Supreme Court's decision in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). In Young, the Court upheld a zoning scheme enacted by the City of Detroit to regulate the geographical placement of "adult" bookstores and motion picture theaters, as well as topless cabarets, within the city. Like Jacksonville's Adult Entertainment Code, the Detroit ordinance prescribed a plan of "inverse zoning": rather than concentrating the particular type of land use (i. e., adult entertainment) within a given geographical area, Detroit opted to disperse this type of establishment throughout the city. Toward this end, Detroit established a category of "regulated uses" that included adult theaters and bookstores.³ The city then prohibited more than two such uses within 1,000 feet of each other. Additionally, Detroit prospectively banned the establishment of any adult theater or bookstore, or of any topless cabaret, within 500 feet of any area zoned for residential use.⁴

Although the Supreme Court upheld the Detroit zoning scheme against constitutional attack, the Court disagreed on the method of analysis by which that result should be reached. Writing for a four-member plurality, Mr. Justice Stevens initially observed that the Detroit ordinance did not impose an invalid prior restraint on protected speech, since access to the adult entertainment market was not foreclosed either for purveyors or for consumers of adult entertainment material.⁵ As he observed, "Viewed as an entity, the market for this commodity is essentially unrestrained." Id. at 62, 96 S.Ct. at 2448. Thus, apart from the fact that adult entertainment establishments received discrete, content-based treatment under the Detroit ordinance, the locational requirements of that ordinance did no more than impose a reasonable "time, place, or manner" restriction on the dissemination of adult entertainment materials. Id. at 63, 96 S.Ct. 2440.

The real problem, as the plurality saw it, was whether the Detroit ordinance could withstand scrutiny under the fourteenth amendment's equal protection clause. Although the plurality did not explicitly articulate the mode of equal protection scrutiny it was applying, it noted that society's interest in protecting sexually explicit material "is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate. . . ." Id. at 70, 96 S.Ct. at 2452. Additionally, it observed that Detroit's zoning scheme was not constitutionally infirm merely by virtue of the fact that it imposed a system of content-based regulation of speech; since the content-based classification obtained regardless of the message communicated through a particular film or book, Detroit had not offended "the Government's paramount obligation of neutrality in its regulation of protected communication." Id. Thus, the plurality held, a government may legitimately use the content of sexually explicit materials as a basis for classifying and regulating those materials as a separate category of expression. From that proposition, the plurality went on to hold that since Detroit had both a valid interest in promoting the quality of urban life and a "factual basis" for concluding that its zoning scheme would further that interest, Detroit could constitutionally regulate the geographical placement of adult entertainment establishments within its jurisdiction. Id. at 71-73, 96 S.Ct. 2440. But as the plurality pointed out, the only real issue presented by Young was whether Detroit could control the location of adult entertainment establishments; in a footnote, the plurality stated that "the situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." Id. at 71 n.35, 96...