Green Cedar, LLC v. Clay Cnty.

• Decision Date: 07 February 2012
• Docket Number: Case No. 3:11-cv- 526-J-37TEM
• Parties: GREEN CEDAR, LLC, d/b/a , Crazy Horse Complex, FOUAD GHANTOUS, an individual, PHREDCO, INC., d/b/a, Club Christophers, CHRISTOPHER WHITE, an individual, and JAMES SPOONER, an individual, Plaintiffs, v. CLAY COUNTY, FLORIDA, a subdivision of the State of Florida, Defendant.
• Court: U.S. District Court — Middle District of Florida

GREEN CEDAR, LLC, d/b/a , Crazy Horse Complex, FOUAD GHANTOUS, an individual, PHREDCO, INC., d/b/a, Club Christophers,CHRISTOPHER WHITE, an individual, and JAMES SPOONER, an individual, Plaintiffs,

v.CLAY COUNTY, FLORIDA, a subdivision of the State of Florida, Defendant.

Case No. 3:11-cv- 526-J-37TEM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Dated: February 7, 2012

ORDER

This cause is before the Court on the following:

1) Defendant Clay County, Florida's ("Clay County" or "Defendant") Motion for Summary Final Judgment and Incorporated Memorandum of Law (Doc. No. 47), filed on November 3, 2011;

2) Plaintiffs' Response to Defendant's Motion for Summary Judgment (Doc. No. 55), filed on December 8, 2011;

3) Defendant's Reply to Plaintiffs' Response to Defendant's Motion for Summary Final Judgment (Doc. No. 64), filed on December 26, 2011;

4) Plaintiffs' Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. No. 49), filed on November 3, 2011;

5) Defendant's Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment (Doc. No. 54), filed on December 8, 2011; and6) Plaintiffs' Reply to Defendant's Response to Plaintiffs' Motion for Summary Judgment (Doc. No. 65), filed on December 27, 2011.

BACKGROUND

In this 42 U.S.C. § 1983 action, Plaintiffs challenge the constitutionality of two Clay County ordinances, Ordinance No. 2011-14 (the "Zoning Ordinance") and Ordinance No. 2011-13 (the "Hours Ordinance") (collectively, the "Ordinances"), enacted by the Board of County Commissioners, Clay County (the "Board") in May 2011. As described in greater detail below, the Ordinances prohibit the sale of alcohol past 11:00 p.m. in all "large lounges" located in a 1.9 mile segment where Wells Road runs through Clay County.

A. The Ordinances

1. The Hours Ordinance

On May 10, 2011, the Board adopted Clay County Ordinance No. 2011-10, amending Clay County Ordinance Section 3-2. (Doc. No. 19, ¶ 46.) On May 24, 2011, the Board passed Ordinance No. 2011-13, which is identical to Ordinance No. 2011-10, but for the addition of one additional "Finding," set forth as Section 4(x) to the Hours Ordinance. (Doc. No. 47, p. 2.) This ordinance limits the hours during which a "large lounge"¹ operating under a 4COP quota license within the "Wells Road Corridor"² may sell alcoholicbeverages. (See Doc. No. 19-2, p. 14.) In short, the Hours Ordinance requires large lounges to stop selling alcohol at 11:00 p.m., approximately three hours earlier than the other entertainment venues, such as restaurants and liquor stores, selling liquor in the Wells Road Corridor, or located outside of the Wells Road Corridor.

2. The Zoning Ordinance

On May 24, 2011, the Board also adopted Ordinance No. 2011-14, amending the county's existing zoning code. The Zoning Ordinance serves as a companion to the Hours Ordinance. It prohibits the establishment of new large lounges within the Wells Road Corridor and requires the large lounges currently operating in the Wells Road Corridor to cease operations within five years.³ (See Doc. 19-2, pp. 25-36.)

3. Justification for the Ordinances

The justifications for the Ordinances are set out in the "Findings" section of each. (Doc. No. 19-2, pp. 14-20 (Hours Ordinance); pp. 26-32 (Zoning Ordinance).) The findings are nearly identical in both Ordinances. The first seven findings describe the "character of the Corridor and its significance to the County." (Doc. No. 47, p. 4 (citing Doc. No. 19-2,pp. 15-16 (Hours Ordinance); pp. 27-28 (Zoning Ordinance)).) Next, findings (a) through (g) describe the "negative impact of the three large lounges on the corridor: crime and disturbances of the peace; actual crime statistics relating to the Corridor; and information provided by the Sheriff's Office regarding the 'extraordinary monitoring and interdiction activities' [required] to control the impact of the large lounges, . . . which [are] not required for smaller lounges also located within the corridor." (Id. (citing Doc. No. 19-2, pp. 18-20 (Hours Ordinance); pp. 29-31 (Zoning Ordinance).) The Ordinances include tables with data provided by the Clay County Sheriff's Office, exhibiting the number of "criminal arrests" between the hours of 10:00 p.m. and 2:00 a.m. within the Wells Road Corridor from 2007 to 2010.⁴ (Doc. No. 19-2, pp. 18-19 (Hours Ordinance); pp. 30-31 (Zoning Ordinance).) Additionally, they provide tables that show the number of arrests specifically for "driving under the influence," "uniform traffic citations," and "calls for service," within the Wells Road Corridor. (Id.) Further, the Ordinances contain general information from the "National Gang Intelligence Center," which relates to the County's concern that "large lounges" attract gang members from various parts of Jacksonville into the Wells Road Corridor. (Id. at p. 17 (Hours Ordinance); p. 29 (Zoning Ordinance).) In total, the Ordinances include approximately twenty-four findings the County considered before it enacted theOrdinances.⁵

4. Hearings on the Ordinances

On April 18, 2011, the Clay County Policy, Rules and Human Services ("PRHS") Committee held a meeting at which they considered what would become the Hours Ordinance and the Zoning Ordinance. (See Doc. No. 48-7.) There were no citizens from the community present at this meeting. It was attended by the County Manager, the County Attorney (who drafted the Ordinances), Vice Chair of the PRHS Committee, Chairman of PRHS Committee, and Development Services General Manager. (Doc. No. 48-7, p. 4.) The PRHS ultimately agreed to send the Ordinances to the Board and to Planning Commission for their respective recommendations. (See Doc. No. 48-7, p. 2; Doc. No. 48-1, Apr. 18, 2011 Hr'g Tr. at 9:9-12.)

On April 26, 2011, the Board held a "regular session," which community members attended and expressed their views (some in favor, some against) the Hours and Zoning Ordinances. (Doc. No. 48-2, Apr. 26, 2011 Hr'g Tr.) At the conclusion of that meeting, the Board recommended both Ordinances move forward towards adoption, and sent the Zoning Ordinance to the Clay County Planning Commission ("Planning Commission") for its review. (Id. at 11:3-22.) On May 3, 2011, the Planning Commission held a meeting at which they discussed the Zoning Ordinance in detail. (Doc. No. 48-3, May 3, 2011 Hr'g Tr.) Some citizens who live or operate businesses in or near the Wells Road Corridor attended and voiced their opinions on the Zoning Ordinance at this meeting as well.

Additionally, before the Ordinances were adopted, the Board held three public hearings. In accordance with "established procedure," the agendas and information gathered by the County in connection with the Board's consideration of the Ordinances was posted on the County's public website more than seventy-two hours prior to the hearings. (Doc. No. 47-2, pp. 2-4, Scruby Declaration, ¶ 4.) The Board held two public hearings on the Zoning Ordinance; one at 5:00 p.m. on May 10, 2011, and one at 2:00 p.m. on May 24, 2011. (Id.) It also held a public hearing on the Hours Ordinance on May 10, 2011 at 2:00 p.m. (Id. at ¶ 2.)

At the May 10, 2011 hearing, the Board heard from a number of citizens from the community who opposed the enactment of the Ordinances, including a number of employees from Crazy Horse and Club Christophers. (Doc. No. 48-4, May 10, 2011 Hr'g Tr.) Mr. Christopher White, the owner of Club Christophers, attended and asked the Board not to adopt the Ordinances. (May 10, 2011 Hr'g Tr. at 21:8 - 23:25.) Employees from both establishments expressed their concerns that enforcement of the Hours Ordinancealone would cause them to close within thirty days. (See id. at 27:14-20.) They described the large lounges as safe places, frequented by "good people," and disputed any "Findings" that suggested otherwise. (See May 10, 2011 Hr'g Tr. 9:24-53:5; 63:12-66:4.) Mr. Yokan, Crazy Horse's counsel attended the hearing as well. He argued that the Ordinances would not pass constitutional muster. (May 10, 2011 Hr'g Tr. at 49:11- 50:13).

Also present at the May 10, 2011 meeting were citizens who spoke in favor of the Ordinances. They affirmed the facts set forth in the "Findings," describing instances of violence, noise disturbances, and an increase in crime the Wells Road Corridor since the large lounges were established. (May 10, 2011 Hr'g Tr. 53:10-62:17; 66:7-69:20.)

Finally, on May 24, 2011, the Board held its second public hearing on the Zoning Ordinance. (See Doc. No. 48-5.) Both opponents and proponents of the Ordinances attended and had the opportunity to be heard. The commissioners and opponents acknowledged the imperfect solution the Ordinances offered, and discussed alternative ways to address the crime and late night crowds within the Corridor. At the end of the hearing, the Board ultimately decided to adopt both.

The Ordinances were drafted to take effect June 1, 2011. (Doc. No. 7-1, ¶ 2.) However, Plaintiffs filed this lawsuit on May 24, 2011, and on May 27, 2011, the parties filed a "Stipulation Regarding Enforcement of Clay County Ordinance No. 2011-10,"⁶ in which Defendant agreed to withhold enforcement of the Ordinances until the entry of final summary judgment or a final judgment following a bench trial or jury verdict on theseissues. (See Doc. No. 7-1, ¶ 3.) ⁷

B. The "Large Lounges"⁸

1. The Crazy Horse Complex

The Crazy Horse Complex is owned and operated by Green Cedar, LLC ("Green Cedar"). (Doc. No. 19, ¶10.) Green Cedar has a 4COP liquor license, issued by the state of Florida to operate Crazy Horse. (Id. at ¶ 19.) The 4COP license authorizes Green Cedar to sell alcohol for on premises consumption at Crazy Horse and to sell packaged alcohol beverages for consumption off premises.⁹ (Id.) Crazy Horse sits within a commercially zoned district that permits nightclubs, and prior to the enactment of the Ordinances there were no restrictions on the size of entertainment venues in that area. (Id. at ¶ 20.)...