Blue Moon Enterprises v. Pinellas County, 8:96-CV-1492-T-26E.

• Citation: 97 F.Supp.2d 1134
• Decision Date: 10 May 2000
• Docket Number: No. 8:98-CV-1429-T-24A.,No. 8:96-CV-1492-T-26E.,No. 8:97-CV-2149-T-23A.,8:96-CV-1492-T-26E.,8:97-CV-2149-T-23A.,8:98-CV-1429-T-24A.
• Parties: BLUE MOON ENTERPRISES, INC., et al., Plaintiffs, v. PINELLAS COUNTY DEPARTMENT OF CONSUMER PROTECTION, In and For PINELLAS COUNTY, FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

97 F.Supp.2d 1134

BLUE MOON ENTERPRISES, INC., et al., Plaintiffs, v. PINELLAS COUNTY DEPARTMENT OF CONSUMER PROTECTION, In and For PINELLAS COUNTY, FLORIDA, Defendant.

No. 8:96-CV-1492-T-26E.

No. 8:97-CV-2149-T-23A.

No. 8:98-CV-1429-T-24A.

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

May 10, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Scott Boardman, Frank de la Grana, P.A., Luke Charles Lirot, Luke Charles Lirot, P.A., Tampa, FL, for Blue Moon Enterprises, Inc., a Florida corporation, plaintiffs.

Carl E. Brody, Jr., Pinellas County Attorney's Office, Clearwater, FL, Howard Mark Bernstein, Howard M. Bernstein, P.A., St. Petersburg, FL, for Pinellas County Department of Consumer Protection, in and for Pinellas County, Florida, a political subdivision, defendants.

ORDER

McCOUN, United States Magistrate Judge.

THIS MATTER is before the court on Plaintiffs' Dispositive Motion for Summary Judgment (Doc. 54) and Defendant's response in opposition (Doc. 64), and Defendant's Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. 68),¹ supplemental memorandum (Doc. 78), and Plaintiffs' response in opposition (Doc. 63).

I.

The undisputed facts establish that consolidated Plaintiffs are Florida corporations which maintain offices, conduct business, and own or lease land in Pinellas County, Florida. Blue Moon, Inc., operates an adult bookstore called "Secrets of Largo"; 66 Street Video, Inc., operates an adult bookstore called "Pleasures," and Alexis, Inc., operates an adult bookstore and special cabaret called "Showgirls."

From July 24, 1990, through April 14, 1994, Pinellas County enacted ordinances which govern the licensing, operation, and regulation of businesses defined as adult use establishments such as those operated by Plaintiffs. The ordinances are codified at Article III of the Consumer Protection Articles of the Pinellas County Code (hereinafter "Code"). The Code requires such establishments to obtain adult use licenses, which can be suspended or revoked for violations of various prohibited activities enumerated in the Code. Additionally, the enforcement provision of the Code states that such violations may be prosecuted and punished as provided by Florida Statutes section 125.69 (1990).²

Plaintiffs operate their adult entertainment establishments under the appropriate adult use licenses pursuant to the Pinellas County Code (hereinafter "Code"). Between July 1996 and June 1998, Defendant sent notices to Plaintiffs advising that their adult use licenses would be suspended. The notice to Plaintiff Alexis, Inc., indicated that the suspensions were the result of three violations of Part VI of Chapter 42 of the Code. Plaintiffs Blue Moon Enterprises, Inc., and 66 Street Video, Inc., were notified that their license suspensions were the result of two violations of Part VI of Chapter 42 and one violation of a specified criminal act. None of the notices, however, contained specific descriptions of the alleged violations, nor were the Plaintiffs given prior notice of the pendency of any such alleged violations.

Plaintiffs bring their actions seeking declaratory judgment that Article III of the Code is unconstitutional, a preliminary and permanent injunction preventing enforcement of Article III of the Code, and reasonable attorney's fees and costs. Plaintiffs allege violations of the Florida and United States Constitutions, including violations of First Amendment guarantees of free expression, improper use of police power, unlawful taking of private property without just compensation, unbridled administrative discretion, violation of equal protection, and violation of due process. The parties have filed cross motions for summary judgment and their respective responses in opposition.

II.

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).

III.

As a threshold matter, it is well-settled law that erotic nonobscene printed matter, films, and live adult entertainment are expressive conduct under the First Amendment. See City of Erie v. Pap's A.M., ___ U.S. ___, ___, 120 S.Ct. 1382, 1385, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Redner v. Dean, 29 F.3d 1495, 1499 (11th Cir.1994); TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir.1994). While such activity enjoys some degree of First Amendment protection, it can be regulated if the regulation furthers a substantial government interest and constitutes only an incidental limitation on the expressive activity See United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). To the extent that a licensing scheme makes the exercise of protected expression subject to obtaining governmental permission, it is deemed a prior restraint. See Silver Spurs, Inc. v. Town of Palm Shores, No. 96-637CIVORL3ABF(18), 1997 WL 809203, at *3 (M.D.Fla. Dec.30, 1997) (citing Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)). While prior restraints are not unconstitutional per se, a licensing scheme that places a prior restraint on the exercise of protected expression bears "a heavy presumption against its constitutional validity." See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)); Florida Video Xpress, Inc. v. Orange County, Fla., 983 F.Supp. 1091, 1096 (M.D.Fla.1997).

For a licensing scheme to comport with the First Amendment, the ordinance must contain two procedural safeguards to ensure prompt decision-making: (1) licensing officials must be required to make prompt decisions, and (2) prompt judicial review of administrative decisions must be available. See FW/PBS, 493 U.S. at 228-30, 110 S.Ct. 596 (modifying the Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (plurality opinion), standard to an adult business licensing scheme); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1554, 146 L.Ed.2d 459 (2000).

As their first grounds for summary judgment, Plaintiffs argue that Section 42-62 of the Code fails to provide for prompt judicial review as required by Freedman and FW/PBS. Section 42-62 of the Code provides:

Any decision of the department of consumer protection, the board of county commissioners or its departments made pursuant to this article may be immediately reviewed as a matter of right by petition for writ of common law certiorari to the Circuit Court for Pinellas County upon the filing of an appropriate pleading by an aggrieved party.

Pinellas County, Fla., Code § 42-62.

In this circuit, "prompt judicial review" requires only access to prompt judicial review for adult entertainment licensing decisions; it does not require a prompt, final judicial decision. See Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir.1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1423, ___ L.Ed.2d ___ (2000).³ In Boss Capital, the Eleventh Circuit acknowledged that Freedman and its progeny require a prompt, final judicial decision. See id. at 1256. However, the court distinguished Boss Capital, a case involving an adult entertainment licensing scheme, from Freedman, a case involving censorship, and found that "[t]he need for a prompt judicial decision is ... less compelling for licensing ordinances than for censorship schemes." Id.

Section 42-62 of the Code is substantially similar to the provision for judicial review in the ordinance in question in Boss Capital. See id....