Centerfold Club, Inc. v. City of St. Petersburg
| Decision Date | 20 May 1997 |
| Docket Number | No. 94-93-CIV-T-24(B).,No. 94-160-CIV-T-24(B).,No. 94-152-CIV-T-24(B).,94-93-CIV-T-24(B).,94-152-CIV-T-24(B).,94-160-CIV-T-24(B). |
| Citation | 969 F.Supp. 1288 |
| Parties | CENTERFOLD CLUB, INC., Plaintiff, v. The CITY OF ST. PETERSBURG, et al., Defendants. Joseph CIVITH d/b/a Foxy Lady, et al., Plaintiffs, v. CITY COUNCIL OF ST. PETERSBURG, acting in their official capacity, et al., Defendants. 3405, INC., a Florida Corporation d/b/a, The Wharehouse, Plaintiff, v. CITY OF ST. PETERSBURG, a Florida Municipal Corporation, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Nicholas M. Athanason, Athanason & Athanason, St. Petersburg, FL, Mark R. Dolan, Lirot Dolan, P.A., Tampa, FL, for Centerfold Club, Inc.
Luke Charles Lirot, Mark R. Dolan, Lirot Dolan, P.A., Tampa, FL, for Joseph Civith, Dou-Han Inc., Sancharger Inc., John Doe.
Mark R. Dolan, Lirot Dolan, P.A., Tampa, FL, for 3405, Inc.
Daniel J. Santaniello, Luks, Koleos & Santaniello, P.A., Ft. Lauderdale, FL, for Lita Sargent.
Michael S. Davis, City Attorney's Office, City of St. Petersburg, St. Petersburg, FL, Mark Alfred Winn, City of St. Petersburg, St. Petersburg, FL, for City of St. Petersburg, David Fischer, Darrell Stephens.
Michael S. Davis, City Attorney's Office, City of St. Petersburg, St. Petersburg, FL, for City Council for the City of St. Petersburg, FL, Michael Davis, Bernie McCabe.
Mark Alfred Winn, City of St. Petersburg, St. Petersburg, FL, Thomas A. Bustin, Office of City Attorney, St. Petersburg, FL, for Connie Kone, David T. Welch, Paul V. Yingst.
Leonard Selig Englander, Englander & Fischer, PA, St. Petersburg, FL, for Craig Sher.
This Cause is before the Court on the following motions:
(a) Defendants Connie Kone, David T. Welch and Paul V. Yingst's (in their individual capacities) (collectively referred to as the "Council Defendants") Motion for Summary Judgment (Doc. No. 98, filed November 17, 1995);1
(b) Council Defendants' Motion for Permission to File Reply Memorandum (Doc. No. 101, filed December 12, 1995);2
(c) Plaintiffs' Motion for Summary Judgment (Doc. No. 113, filed May 21, 1996);3
(d) Defendant City of St. Petersburg and Defendants Fischer, Stephens and Davis' (in their official capacities) (collectively referred to as the "Defendants") Motion for Summary Judgment (Doc. No. 115, filed May 22, 1996);4 and
(e) Plaintiffs Centerfold Club, Inc., Joseph Civith and 3405, Inc.'s Motion for Summary Judgment (Doc. No. 121, filed May 22, 1996).5
This action consists of three separate cases consolidated for administrative purposes. The original action was commenced by Centerfold Club, Inc. against the City of St. Petersburg, Mayor David Fischer and Chief of Police Darrell Stephens (Doc. No. 1). Generally, the action alleges that the City's adoption and threatened enforcement of the Adult Use Zoning Regulation, adopted by Ordinance 72-G6 and codified as 29-224, et seq., violates the Plaintiff's constitutional rights. See Doc. No. 1, at ¶ 25.7
The second action was filed by Joseph Civith d/b/a "Foxy Lady," Dou-Han, Inc. d/b/a Sancharger, Inc. d/b/a "The Blue Garter," and John Doe against the St. Petersburg City Council, the City of St. Petersburg, Chief of Police Darrell Stephens, City Attorney Michael Davis and State Attorney Bernie McCabe in their official capacities. See Doc. No. 1, filed in 94-152-CIV-T-24(B). The action generally alleges that adoption of Ordinance 72-G violates the Plaintiffs' constitutional rights.8
The final action, as amended, was filed by 3405, Inc. d/b/a "The Wharehouse" against the City of St. Petersburg and City Council Members Connie Kone, David T. Welch and Paul V. Yingst in their individual capacities. This action alleges that the City's Adult Use Zoning Regulation violates the Plaintiff's constitutional rights. In regard to the individual Council Members. Plaintiff alleges that their decision to deny Plaintiff's request for a zoning variance violates Plaintiff's constitutional rights.9
There are four motions for summary judgment before the Court. The first was filed by Defendants Kone, Welch and Yingst in their individual capacities against Plaintiff 3405, Inc. in case number 94-160-CIV-T-24(B). This motion asserts the defense of absolute or qualified immunity. See Doc. No. 98.
Plaintiffs Dou-Han, Inc., 3405, Inc., Centerfold, Inc., and Sancharger, Inc. (i.e. all Plaintiffs except Joseph Civith) filed the second motion in case number 94-152-CIV-T-24(B). This motion contends that the Ordinance is unconstitutional because (1) the Ordinance does not have an adequate predicate for valid adoption and/or (2) the Ordinance is not the least restrictive means possible to accomplish the alleged objectives. See Doc. No. 113.
Defendants City of St. Petersburg, Mayor Fischer, Police Chief Stephens and City Manager Davis, in their official capacities, filed the third motion. This motion applies to all three cases. Defendants argue that as a matter of law the Ordinance is valid and constitutional. The motion divides into ten parts. Two of the parts attack the standing and position of the various Plaintiffs. The remaining eight parts undermine the various claims asserted by the Plaintiffs. Specifically, Defendants argue that: (1) the Ordinance has a Proper Motive and Legislative Purpose (i.e. Count I of Civith, et al.'s complaint and Count IX of 3405, Inc.'s amended complaint); (2) the Ordinance has a Proper Predicate (i.e. Count I of Civith, et al.'s complaint and Count VIII of 3405, Inc.'s amended complaint); (3) the Ordinance provides for Adequate Alternative Avenues of Communication (i.e. Count II of Civith, et al.'s complaint and Count IV of 3405, Inc.'s amended complaint); (4) the Ordinance does not constitute a "Taking" Without Compensation or Equitable Estoppel (i.e. Counts IV and V of Civith et al.'s complaint and Count VII of 3405, Inc.'s amended complaint); (5) the Ordinance is not Overbroad or Vague (i.e. Counts VII and VIII of Civith et al.'s complaint and Count VI of 3405, Inc.'s amended complaint); (6) the Ordinance does not violate the Equal Protection Clause (i.e. Count VI of Civith, et al.'s complaint and Count XI of 3405, Inc.'s amended complaint); (7) the Ordinance is not a Prior Restraint and the Ordinance does provide for Procedural Safeguards (i.e. Count III of Civith, et al.'s complaint and presumably Counts I, V, X and XII of 3405, Inc.'s amended complaint10); and (8) the Ordinance is not a Bill of Attainder or Ex Post Facto Law (i.e. Count IV of Civith, et al.'s complaint). See Doc. No. 115.
The final motion was filed by Plaintiffs Centerfold, Civith and 3405 in case numbers 94-93-CIV-T-24(B) and 94-152-CIV-T-24(B). This motion maintains that the Ordinance is unconstitutional because it does not provide for adequate alternative avenues of communication. See Doc. No. 121.
In sum, while there are four motions before the Court raising several issues, the motions are duplicative in part. As a result, there are actually only eight issues before this Court:
(1) Is the Ordinance a valid content-neutral time, place and manner restriction?
(i) Does the Ordinance serve a substantial governmental interest?
(ii) Does the Ordinance allow for reasonable alternative avenues of communication?
(iii) Is the Ordinance narrowly tailored?11
(2) Does the enforcement of the Ordinance constitute a "Taking" in violation of the Constitution?
(3) Is the enforcement of the Ordinance barred by the Doctrine of Equitable Estoppel?
(4) Is the Ordinance Overbroad or Vague?
(5) Does the Ordinance violate the Equal Protection Clause of the Constitution?
(6) Is the Ordinance an Unconstitutional Prior Restraint and does it provide Procedural Safeguards?
(7) Is the Ordinance a Bill of Attainder or Ex Post Facto law?
(8) Do the Council Defendants enjoy Qualified Immunity?
After initially reviewing the motions and responses, the Court set this matter for a hearing. In the notice of hearing, the Court noted those issues which it wanted addressed. The hearing was conducted on September 10, 1996. Mr. Winn (Counsel for all the Defendants), Mr. Dolan (Counsel for Plaintiff 3405) and Mr. Lirot (Counsel for Plaintiffs Dou-Han and Sancharger) were present. Mr. Dolan also stood in for Mr. Athanason (Counsel for Plaintiff Centerfold).
The hearing narrowed this case in two specific ways. First, the issue of standing was addressed and is hereby resolved. At the hearing, Counsel for the Plaintiffs advised the Court that Plaintiffs Civith and Centerfold had voluntarily closed their businesses and that the complaints did not allege any forced closures by the City's Nuisance Abatement Board. See Doc. No. 144 at 6 lines 22-23, 7 lines 17-24 and 8 lines 1-9.
In order for this Court to have jurisdiction there must be a before the Court. It is not enough that a "real controversy existed when the lawsuit was filed, the controversy must be a `live' controversy throughout all stages of the case." Chiles v. Thornburgh, 865 F.2d 1197, 1202 (11th Cir.1989) (citing Burke v. Barnes, 479 U.S. 361, 362-64, 107 S.Ct. 734, 735-37, 93 L.Ed.2d 732 (1987)). In light of the statements made by Counsel for the Plaintiffs at the hearing, this Court finds that Plaintiffs Civith and Centerfold lack standing to bring this action. No "live" controversy exists as to them. Accordingly, the action by Plaintiff Centerfold, Inc. against Defendants City of St. Petersburg, Mayor Fischer and Police Chief Stephens (Case No. 94-93) is dismissed. Additionally, the action filed by Plaintiff Civith (Case No. 94-152) is dismissed. The case still remains as filed by Plaintiffs Dou-Han and Sancharger against Defendants City of St. Petersburg, Police Chief Stephens and City Attorney Davis.
Second, the hearing brought to the forefront the issue of adequate alternative avenues of communication. The parties...
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