Curves, LLC v. Spalding Cnty., Ga.

• Decision Date: 06 July 2012
• Docket Number: No. 10–13871.,10–13871.
• Citation: 82 Fed.R.Serv.3d 1138,23 Fla. L. Weekly Fed. C 1281,685 F.3d 1284
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: CURVES, LLC, d.b.a. Curves Bar & Grill, James D. Gann, Plaintiffs–Appellants, v. SPALDING COUNTY, GEORGIA, Captain Tony Ranieri, Defendants–Appellees.

685 F.3d 1284

82 Fed.R.Serv.3d 1138

23 Fla. L. Weekly Fed. C 1281

CURVES, LLC, d.b.a. Curves Bar & Grill, James D. Gann, Plaintiffs–Appellants,

v.SPALDING COUNTY, GEORGIA, Captain Tony Ranieri, Defendants–Appellees.

No. 10–13871.

United States Court of Appeals, Eleventh Circuit.

July 6, 2012.

Cary Stephen Wiggins, WigginsLaw Group, Irma I. Espino, Cook Youngelson & Wiggins, Atlanta, GA, for Plaintiffs–Appellants.

Mary Katz, Frances L. Clay, Chambless, Higdon, Richardson, Katz & Griggs, LLP, Charles E. Cox, Jr., Charles E. Cox, Jr., LLC, Macon, GA, James R. Fortune, Jr., Janice M. Wallace, Beck, Owen & Murray, Griffin, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and WILSON, Circuit Judges, and VINSON,^* District Judge.

PER CURIAM:

Plaintiffs operated an alcohol-selling nightclub in Spalding County, Georgia. Defendant Spalding County's ordinances prohibit nude dancing where alcohol is sold. Plaintiffs sued, challenging the constitutionality of the ordinances and asserting claims for malicious arrest and malicious prosecution. The District Court granted summary judgment in favor of Defendants on Plaintiffs' constitutional claims. The District Court also granted summary judgment in favor of Defendants on Plaintiffs' malicious arrest and malicious prosecution claims.

Plaintiffs appeal the District Court's summary judgment ruling on the merits. In addition, Plaintiffs also question the impartiality of the District Judge—former Judge Jack Camp—and seek retroactive recusal and vacatur of summary judgment.

We affirm the District Court's decision granting summary judgment in favor of Defendants.

Background

Curves opened for business in 2006. It was licensed to sell alcohol and operated as a sports bar in Spalding County (“the County”). Curves began offering fully nude dance entertainment in April 2007; before then, sometimes waitresses would merely “flash” their bare breasts at patrons.

After undercover operations and investigation by the authorities, Curves filed suit to challenge the constitutionality of the County's alcohol and adult ordinances (the “Original Alcohol Ordinance” and the “Original Adult Ordinance”). In February 2007, Curves sought to enjoin Defendants from enforcing the ordinances.

After an evidentiary hearing the District Court granted a preliminary injunction, which enjoined Defendants from enforcing parts—but not all—of the ordinances.¹ The District Court denied Curves's motion to enjoin section 6–3013, the provision of the Original Adult Ordinance that prohibited nude dancing in places that serve alcohol. So, section 6–3013 continued to prohibit Curves from offering nude dancing while it also sold alcohol. Curves appealed to this Court.

Despite the continued operation of section 6–3013, Curves offered nude dancing together with alcohol. Spalding County, in turn, enforced section 6–3013. Defendant Tony Ranieri, a law enforcement officer, would enter Curves and determine whetherCurves was serving alcohol while simultaneously offering live nude entertainment. Witnessing both live nudity and the serving of alcohol, Ranieri would cite Curves's manager, Plaintiff James Gann, for a violation of section 6–3013. Ranieri issued these citations about once per week between 17 May 2007 and 24 August 2007.

On 23 August 2007, Spalding County repealed both the Original Adult Ordinance and the Original Alcohol Ordinance and replaced them with two new ordinances:

• Ordinance No. 2007–17, Spalding County Code §§ 6–3001 through 6–3016 (“Amended Adult Ordinance”); and

• Ordinance No. 2007–18, Spalding County Code § 6–1071 (“Amended Alcohol Ordinance”).

The amended ordinances took effect on 28 August 2007. After the County repealed the original ordinances, this Court dismissed Plaintiffs' then-pending appeal as moot. Curves LLC v. Spalding Cty., No. 07–12577 (11th Cir. Dec. 28, 2007) (order dismissing appeal as moot).

Curves determined that it could not operate successfully without the ability both to sell alcohol and to offer nude dancing. So, Curves went out of business.

Plaintiffs then filed an amended complaint in the District Court, alleging that parts of the original and amended ordinances violated the First Amendment, that is, prevented the club from offering nude dancing. Plaintiffs also asserted a state-law-based malicious arrest claim and a federal-law-based malicious prosecution claim. Plaintiffs sought damages and fees only, abandoning all claims for declaratory and injunctive relief.

The District Court granted summary judgment in favor of Defendants. Plaintiffs appeal.

Discussion

I. Retroactive Recusal and Vacatur

Plaintiffs contend that former Judge Jack Camp—who presided over and ruled on summary judgment—should be retroactively recused pursuant to 28 U.S.C. § 455(a) and (b)(1) and that Judge Camp's summary judgment order should be vacated pursuant to Federal Rule of Civil Procedure 60(b)(6). ² After Judge Camp's rulings in this case, federal law officers arrested Judge Camp and charged him with crimes. That Judge Camp—around the time he was deciding this case—frequented Atlanta-area, nude-dancing clubs has become known. Judge Camp's conduct was, in fact, unrelated to this case. No one contends that Judge Camp had visited the Curves club. Judge Camp ultimately pleaded guilty to criminal charges and resigned his office.

About retroactive recusal, section 455(a) requires recusal where “an objective, fully informed lay observer would entertain significant doubt about the judge's impartiality.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000). The pertinent facts in the present case were not disputed. Judge Camp, therefore, decided no disputes of operative fact that were essential to the outcome of this case.³ And we review de novo Judge Camp's legal conclusions: that is, we give his legal conclusions no deference. On this record, no fully informed and objectively reasonable lay observer would seriously doubt Judge Camp's impartiality because of conduct in his private life which was unrelated, in fact, to this case or to these parties. Section 455(a) does not mandate retroactive recusal.

Recusal pursuant to section 455(b)(1) requires that the judge “ actually has a personal bias or prejudice concerning a party[.]” United States v. Amedeo, 487 F.3d 823, 828 (11th Cir.2007) (internal quotations omitted) (emphasis in original). Section 455(b)(1) is therefore narrower than section 455(a). Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 1156, 127 L.Ed.2d 474 (1994). No record evidence shows that Judge Camp actually had personal bias or prejudice concerning a party. Section 455(b)(1) does not require retroactive recusal.

Rule 60(b) vacatur for a potential section 455 violation involves consideration of these factors: the risk of injustice to the parties; the risk that denial of relief will produce injustice in other cases; and the risk of undermining the public's confidence in the judicial process. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988).

In this appeal from summary judgment, we review the record de novo: we give no deference to the District Court. So, injustice—if any—to these parties will be cured by our fresh review. Furthermore, because of our de novo review and because Judge Camp has resigned, the risk of injustice to other parties is non-existent. And because no fully informed objectively reasonable person would entertain significant doubt about Judge Camp's impartiality about this case, the public's confidence in the judicial process cannot be said to be undermined, especially in the light of our de novo review. The law does not require us to vacate Judge Camp's summary judgment decision.

II. Plaintiffs' Constitutional Challenges to the Amended Alcohol Ordinance and the Amended Adult Ordinance

At the outset, we note that Plaintiffs' briefs chiefly challenge the constitutionality of the Amended Adult Ordinance. For reasons discussed below, however, our review focuses on the Amended Alcohol Ordinance.

We first conclude that the Amended Alcohol Ordinance is constitutional. Because this conclusion is dispositive of this case, we do not reach the constitutionality of the Amended Adult Ordinance. But because the Amended Alcohol Ordinance incorporates by reference certain parts of the Amended Adult Ordinance, we do discuss those directly incorporated parts of the Amended Adult Ordinance that Plaintiffs challenge.

To be clear, in reviewing the constitutionality of the two amended ordinances, we will only address these arguments: (1) Plaintiffs' arguments that “ plainly and prominently ” challenge the constitutionality of the Amended Alcohol Ordinance⁴; and (2) Plaintiffs' arguments about the parts of the Amended Adult Ordinance that the text of the Amended Alcohol Ordinance explicitly incorporates by reference. We will address no other arguments because a full adjudication of this appeal requires us to address no other arguments.

A. Constitutionality of the Amended Alcohol Ordinance

Plaintiffs contend that the Amended Alcohol Ordinance violates the First Amendment. We reject Plaintiffs' contention.

On appeal from a grant of summary judgment, we review the District Court's legal conclusions de novo and view all evidenced facts in the light most favorable to the non-moving party. E.g., Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.2008). We review the constitutionality of statutes de novo. Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1277 (11th Cir.2001).

i. Constitutionality under O'Brien

“[A] city ordinance prohibiting nude dancing in establishments licensed to sell liquor is content-neutral and therefore, subject to review under the O'Brien test.” Flanigan's Enterprises, Inc. v. Fulton Cty., 596 F.3d 1265, 1276 (11th Cir.2010) (quotation marks omitted). Because the Amended Alcohol Ordinance targets the undesirable secondary effects of...