Fly Fish, Inc. v. City of Cocoa Beach

• Decision Date: 18 July 2003
• Docket Number: No. 02-14156.,02-14156.
• Citation: 337 F.3d 1301
• Parties: FLY FISH, INC., a Florida corporation, d.b.a. Sassy Merlot's 2, Plaintiff-Appellant-Cross-Appellee, v. CITY OF COCOA BEACH, a Florida municipal corporation, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

337 F.3d 1301

FLY FISH, INC., a Florida corporation, d.b.a. Sassy Merlot's 2, Plaintiff-Appellant-Cross-Appellee, v. CITY OF COCOA BEACH, a Florida municipal corporation, Defendant-Appellee-Cross-Appellant.

No. 02-14156.

United States Court of Appeals, Eleventh Circuit.

July 18, 2003.

COPYRIGHT MATERIAL OMITTED

Gary S. Edinger, Gainesville, FL, for Fly Fish.

James J. Flood, Jr., Flood & Ward, Washington, DC, Lamar D. Oxford, Dean, Ringers, Morgan & Lawton, P.A., Orlando, FL, for City of Cocoa Beach.

Appeals from the United States District Court for the Middle District of Florida.

Before DUBINA, HILL and COX, Circuit Judges.

HILL, Circuit Judge:

Fly Fish, Inc. appeals the entry of summary judgment against it on its First Amendment challenge to various provisions of the adult entertainment ordinance of the City of Cocoa Beach, Florida. The City of Cocoa Beach, Florida appeals the entry of summary judgment against it as to one of the licensing provisions of that ordinance. For the following reasons, we affirm in part and reverse in part.

I.

The City of Cocoa Beach, Florida (the "City" or "Cocoa") consists of 4.17 square miles running along the east coast of central Florida in a narrow strip. It is approximately six miles long. Most of the City is only one mile wide.¹ The City has a population of 13,263 permanent residents and a peak tourist population of 10,000-11,000. It is comprised of a total of 2,672 acres. Of that, 154 acres are designated and zoned for general commercial use, 954 acres are allotted for single and multi-family residential use, and approximately one third (900 acres) is designated for conservation. Currently, there are 1.71 acres on which adult businesses may legally operate.

The City first enacted an adult entertainment ordinance in 1986. At that time, there were three adult entertainment establishments in existence. In 1997, Fly Fish, Inc. ("Fly Fish") established a club named "Sassy Merlot's 2" ("Sassy's") at the location of a former dance club that was not an adult entertainment business. Sassy's was issued the former club's license to operate a dance club, but, soon after it opened, it instituted an "adult entertainment" format, although it did not fall within the definition of such an establishment as set out in the City's code.²

In 1999, the City passed a revised adult entertainment ordinance, Ordinance 1204 (the "ordinance" or "1204"), that redefined an adult entertainment establishment to include one in which the dancers dance for tips or in close proximity to the patrons. Under Ordinance 1204, Sassy's effectively became an adult entertainment establishment, and it applied for an adult entertainment license.

Ordinance 1204, however, makes only three sites available for adult businesses. These sites are defined by the legal descriptions of the lots at which the other three adult entertainment establishments were then operating. Therefore, there was no site available to which Sassy's could relocate.³ Presumably for this reason no license issued. We do not know for sure since the City never formally denied the application. Instead, the City followed the provisions of Ordinance 1204, which provide that if no action is taken on an application within thirty days, a license must issue and the applicant is entitled to operate under that "temporary" license until such time as the City formally acts on the application. Sassy's has operated in this fashion until the present time.⁴

Ordinance 1204 is a three-pronged regulation of adult-entertainment establishments. First, it regulates conduct, proscribing total nudity on the part of the employees of such establishments.⁵ Second, it is a zoning statute, limiting the location of adult entertainment establishments. Finally, it is a licensing statute, establishing criteria for the issuance of a business license and imposing a licensing fee.

Fly Fish attacks each prong of Ordinance 1204. First, it argues that as a regulation of conduct, 1204 unconstitutionally suppresses conduct protected by the First Amendment. If so, the ordinance is subject to strict scrutiny, and the district court erred in applying a lesser standard of review.⁶

Second, Fly Fish claims that, as a zoning statute, Ordinance 1204 fails to pass constitutional muster because it provides too few opportunities for adult entertainment establishments.

Third, Fly Fish contends that the licensing provisions of the ordinance are unconstitutional because they vest unbridled discretion over the licensing decision in city officials and impose a licensing fee that constitutes a tax on expressive conduct.

The district court entered summary judgment for the City on the first two of Fly Fish's attacks on the ordinance, as well as the claim that the licensing fee is unconstitutional. The court entered summary judgment for Fly Fish, however, on its claim that the ordinance's licensing provisions grant the City unconstitutional discretion over the licensing decision. Both parties appealed. We review these judgments de novo. Calhoun v. Lillenas Publishing, 298 F.3d 1228 (11th Cir.2002).

II.

A. Ordinance 1204 As a Regulation of Expressive Conduct

Fly Fish claims that Ordinance 1204's prohibition on nudity in adult entertainment establishments must be strictly scrutinized because it is a content-based regulation of expressive conduct. If so, the district court erred in not doing so.

1. Regulations of Expressive Conduct

The Supreme Court has identified three categories of laws that regulate conduct with an expressive component. In order to determine what level of scrutiny is due Ordinance 1204, we must first decide into which category it fits.

a) Content-neutral Regulations

First, there are laws of general application that serve purposes unrelated to the content of expression. These content-neutral laws prohibit an entire class of conduct, and do not define the regulated conduct with reference to any expressive content it may have. Such a law is entitled to a deferential, or intermediate, level of constitutional scrutiny. United States v. O'Brien, 391 U.S. 367, 382, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

A general prohibition of public nudity is a law of general application. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion). It prohibits an entire class of conduct, and does not define the regulated conduct with reference to any expressive component. Id. at 570-571, 111 S.Ct. 2456. Therefore, it is content-neutral on its face. Id.

Nor does the application of the statute to expressive conduct — nude dancing — render the statute content-based. Id.⁷ So long as the purpose of the statute is unrelated to the suppression of the expressive conduct, the statute is content-neutral. Id. ("The perceived end that [the statute] seeks to address is not erotic dancing, but public nudity"); see also Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ("[I]n determining content neutrality, ... [t]he government's purpose is the controlling consideration") (emphasis added). A general prohibition of public nudity, even as applied to nude dancing, therefore, is content-neutral and reviewed under intermediate level of scrutiny. Barnes, 501 U.S. at 568, 111 S.Ct. 2456.⁸

Recently, the Court reaffirmed that a ban on public nudity is a content-neutral law of general application due intermediate scrutiny. City of Erie v. Pap's A.M., 529 U.S. 277, 289-290, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). In Erie, the Court upheld an ordinance prohibiting public nudity as applied to nude dancing because the ordinance was a law of general application, prohibiting the entire class of nude conduct. Id. The Court rejected the charge that the ordinance was content-based, observing that it was "a general prohibition on public nudity," which:

[b]y its terms, ... regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity.

Id. at 290, 120 S.Ct. 1382.⁹

b) Content-based Regulations

On the other hand, a law that proscribes or limits conduct precisely because of its expressive component is content-based. Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). These regulations draw strict scrutiny because they are aimed at the suppression of free expression. Johnson, 491 U.S. at 403, 109 S.Ct. 2533. Under this test, such an ordinance is presumptively invalid, and, if it suppresses protected speech "because of disagreement with the message it conveys," it violates the First Amendment, absent some compelling state interest in its enforcement. Ward, 491 U.S. at 791, 109 S.Ct. 2746. A law that prohibits nude dancing because of disapproval of its expressive content is unconstitutional. Barnes, 501 U.S. at 570-571, 111 S.Ct. 2456.

c) Content-Based Regulations Treated as Content-Neutral

The Supreme Court has identified a third category of regulation of expressive conduct. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). These regulations define the regulated conduct by its expressive content, and, to this extent, they are "content-based." Id. at 47, 106 S.Ct. 925. Their purpose, however, is not to ban the expressive conduct, but merely to establish restrictions on the time, place, and manner of its presentation. Id. at 46, 106 S.Ct. 925. Although content-based, such a regulation will be treated as if it were content-neutral if it serves a substantial government purpose that is unrelated to the suppression of the expressive conduct. Id. at 47-49, 106 S.Ct. 925.

In the context of adult entertainment, the Court held that this purpose can be located in combating the harmful secondary effects of that conduct on the surrounding community. Id. at 49, 106 S.Ct. 925. In Renton, the Court upheld an ordinance that targeted adult theaters. Id. at 47, 106 S.Ct. 925...