Florida Video Xpress, Inc. v. Orange County, Fl.

• Decision Date: 24 October 1997
• Docket Number: No. 97-616-CIV-ORL-22.,97-616-CIV-ORL-22.
• Parties: FLORIDA VIDEO XPRESS, INC., etc., et al., Plaintiffs, v. ORANGE COUNTY, FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

983 F.Supp. 1091

FLORIDA VIDEO XPRESS, INC., etc., et al., Plaintiffs, v. ORANGE COUNTY, FLORIDA, Defendant.

No. 97-616-CIV-ORL-22.

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

October 24, 1997.

David A. Wasserman, Winter Park, FL, for plaintiffs.

Joel D. Prinsell, Linda Sue Brehmer Lanosa, Orange County Attorney's Office, Orlando, FL, for defendant.

ORDER

CONWAY, District Judge.

Upon the Court's review of this case, it is ORDERED as follows:

1. Magistrate Judge James G. Glazebrook's well-reasoned Report and Recommendation (Dkt.40), filed August 29, 1997, is APPROVED AND ADOPTED. Plaintiffs have not demonstrated a substantial likelihood of success on the merits, and they have not met the other requirements for issuance of a preliminary injunction.

2. Plaintiffs' Objections (Dkt.47) to the Report and Recommendation, filed September 12, 1997, are OVERRULED.

3. Plaintiffs' Application for Preliminary Injunction (Dkt.2), filed May 16, 1997, is DENIED.

4. The Defendant's Response to Plaintiffs' Objection to Magistrate's Report and Recommendation (Dkt 51), filed September 29, 1997, is 31 pages in length. Local Rule 3.01(c) provides that, absent Court permission, legal memoranda shall not exceed 20 pages. In the future, defense counsel shall comply with that Rule.

REPORT AND RECOMMENDATION

GLAZEBROOK, United States Magistrate Judge.

This cause came on for hearing on August 7, 1997 and August 18, 1997 on the following motion:

MOTION: PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION [Docket No. 2]

FILED: May 16, 1997

RECOMMENDATION: DENIED. This cause came on for hearing on August 7, 1997 and August 18, 1997. For the reasons set forth below, it is RECOMMENDED that the motion be DENIED.

I. Introduction

In 1983, Orange County promulgated an Adult Entertainment Code which regulates, inter alia, adult entertainment and bookstores. See Docket No. 30 at 1. The Adult Entertainment Code has been amended in 1984, 1985, 1987, 1990, 1992, 1993, 1994, and twice in 1996.¹ See Docket No. 30 at 1.

Video Xpress, which opened in June of 1992, sells and rents adult and non-adult materials. See Docket No. 1 at 4. Masquerade, which opened in March of 1995, sells various merchandise, including adult materials. Id. Neither Video Xpress nor Masquerade applied for an adult entertainment license. See Docket Nos. 1, 30 at 4. Because Video Xpress and Masquerade had not applied for and acquired an adult entertainment license, the Orange County Adult Entertainment Code prohibited them from operating as adult bookstores. See Docket No. 3 at 2. Accordingly, both Video Xpress and Masquerade attack the Adult Entertainment Code as facially unconstitutional. See Docket No.1.² On May 16, 1997, Video Xpress and Masquerade filed this motion seeking a preliminary injunction, pursuant to Fed.R.Civ.P. 65 and Local Rules 4.05, 4.06, prohibiting enforcement of the Adult Entertainment Code. See Docket No. 2. On July 18, 1997, Orange County filed its opposition to the motion. See Docket No. 30.³

II. The Adult Entertainment Code

Section 3-26 of the Adult Entertainment Code prohibits an adult entertainment establishment from operating absent an adult entertainment license. See ORANGE COUNTY, FLORIDA, CODE [hereinafter "Code"] § 3-36(a). An "adult entertainment establishment" includes, inter alia, an "adult bookstore." See Code § 3-6. Code § 3-6 also defines "adult bookstore" as:

an establishment which advertises, sells or rents, or offers for sale or rent, adult material.

This definition is not intended to apply, and it is an affirmative defense to an alleged violation of this chapter regarding operating an adult bookstore without an adult entertainment license, if the alleged violator demonstrates that at the establishment:

(1) admission to all or any part of the establishment is not restricted to adults only; and (2) all adult material is accessible only by employees ("accessible meaning that the item, material, good or product can be touched, picked up or handled by a patron, or is displayed so that substantially more than its name or title is visible"); and

(3) each month, the gross income from the sale and rental of adult material comprises less than ten (10) percent of the gross income from the sale and rental of all material and goods at the establishment; and

(4) the individual items of adult material offered for sale and rental comprise less than twenty-five (25) percent of the total individual unused items publicly displayed at the establishment as stock in trade in each of the following categories; books, magazines, periodicals, other printed matter, photographs, films, motion pictures, videotapes, slides, computer digital graphic recording, other visual representations, compact discs, audio recordings, other audio matter, and they comprise less than twenty-five (25) percent of the total individual used items publicly displayed as stock in trade in each of the categories described above; and

(5) the floor area used to display adult material comprises less than ten (10) percent of the total floor area used to display all material and goods at the establishment.

Adult materials include:

(1) Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, videotapes, slides, computer digital graphic recordings or other visual representations, or compact discs, audio recording, or other audio matter, which have as their primary or dominant theme matter depicting, illustrating, describing or relating to specified sexual activities or specified anatomical areas; or

(2) Instruments, novelties, devices or paraphernalia which are designed for use in connection with specified sexual activities, excluding bona fide birth control devices.

See Code § 3-6.

In applying for an adult entertainment license, an applicant must include certain specified information. See Code § 3-27. Once an application has been filed, the Orange County tax collector must evaluate and grant or deny the application. See Code §§ 3-28, 3-29. Code § 3-29 sets forth the time period within which the tax collector must grant or deny an application, and sets forth the standards for evaluating an application. Code § 3-29 (bold emphasis supplied) provides:

(a) Time period for granting or denying license. The tax collector shall grant or deny an application for a license under this article within thirty (30) days from the date of its proper filing. Upon the expiration of the thirtieth day, the applicant shall be permitted to begin operating the establishment as an adult entertainment establishment for which a license is sought (provided all other required permits, licenses and certificates have been obtained), unless and until the tax collector notifies the applicant of a denial of the application and states the reasons for that denial.

(b) Granting of application for license. If none of the departments has made a finding that would require that the application be denied, the tax collector shall grant the application, notify the applicant within seven (7) days of the granting, and issue the license to the applicant upon payment of the appropriate annual license fee provided in sections 3-30 and 3-31, with credit as provided in section 3-27(c).

(c) Denying of application for license.

(1) the tax collector shall review the findings reported by all departments and deny the application for any of the following reasons:

a. The application contains material false information or is incomplete;

b. The applicant has failed to comply with a provision of the Florida Statutes, including Chapter 607 regarding corporations, Chapter 620 regarding partnerships, or Florida Statutes 895.09 regarding doing business under fictitious names.

c. The applicant or any of the other individuals listed pursuant to section 3-27(b)(1) has a license under this chapter which has been suspended or revoked;

d. The granting of the application would violate a statute or ordinance or an order from a court of law which effectively prohibits the applicant from obtaining an adult entertainment establishment license.

(2) If the tax collector denies the application, he shall, within seven (7) days notify the applicant of the denial, and state the reason(s) for the denial.

(3) Reapplication. If a person applies for a license at a particular location within a period of nine (9) months from the date of denial of a previous application for a license at the location, and there has not been an intervening change in the circumstances which will probably lead to a different decision regarding the former reason(s) for denial, the application shall be rejected.

Finally, Code § 3-10⁴ governs review of a decision by the tax collector.⁵ Code § 3-10 provides that "[a]ny decision of the tax collector pursuant to article II of this chapter may be immediately reviewed as a matter of right by the circuit court upon the filing of an appropriate pleading by an aggrieved party." See Code § 3-10.

III. The Law

A plaintiff seeking a preliminary injunction must show: 1.) a substantial likelihood of success on the merits; 2.) a substantial threat of irreparable injury; 3.) that the threatened injury outweighs the injury to the nonmovant; and 4.) that the injunction would not disserve the public interest. See State-wide Detective Agency v. Miller, 115 F.3d 904, 905 (11th Cir.1997); accord, Local Rule 4.06. Facial challenges are generally disfavored, yet they are permitted in First Amendment challenges in either of two cases: 1.) where the licensing scheme vests unbridled discretion in the decisionmaker; or 2.) where the regulation is challenged as overbroad. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).

A. Licensing of Adult Activities

Although prior restraints are not unconstitutional per se, any such system bears a "heavy presumption against its constitutional validity." See FW/PBS, 493 U.S. at 225, 110 S.Ct. at 604 (...