INTERNATIONAL EATERIES OF AMER. v. Broward County
| Decision Date | 13 October 1987 |
| Docket Number | No. 86-6348-Civ.,86-6348-Civ. |
| Citation | 726 F. Supp. 1556 |
| Parties | INTERNATIONAL EATERIES OF AMERICA, INC., a Florida corporation, d/b/a "Thee Doll House III", Plaintiff, v. BROWARD COUNTY, a political subdivision of the State of Florida, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
COPYRIGHT MATERIAL OMITTED
Richard L. Wilson, Dallas, Tex., and Bruce L. Randall, Ft. Lauderdale, Fla., for plaintiff.
Alexander Cocalis, Office of the County Atty., Ft. Lauderdale, Fla., and Richard Doody, Asst. Gen. Counsel, for defendant.
THIS CAUSE was tried non-jury before the Court at which time testimony and evidence were adduced by both parties. Likewise, this Court has, upon plaintiff's motion, viewed the location and the surrounding area of the subject property involved in this litigation, in the company of counsel for both sides. The Court has considered the evidence, oral argument, memoranda of law, the viewing of the location, and being otherwise fully advised in the premises, makes and enters herewith its Findings of Fact and Conclusions of Law.
The nature of this action is a complaint for permanent injunction, declaratory judgment and attorney's fees, brought pursuant to 42 U.S.C. §§ 1983 and 1988. Essentially, plaintiff attacks ordinances affecting the unincorporated areas of Broward County, Florida, prohibiting placement of an adult nightclub in any area zoned other than B-2B and within 1,000 feet of a church, kindergarten, or school, or within 500 feet of a residentially zoned district.
Jurisdiction is based upon 28 U.S.C. §§ 1331 and 1343.
1. Plaintiff, International Eateries of America, Inc., a Florida corporation, operates a restaurant and nightclub at 3561 North Federal Highway in unincorporated Broward County, Florida, known as "Thee Dollhouse III." Thee Dollhouse III presents non-obscene, nude dancing as the primary form of entertainment for its customers.
2. Defendant Broward County has a population in excess of one million persons, and occupies more than 410 square miles on Florida's southeast coast, with the city of Fort Lauderdale being the County seat. Within the unincorporated area of Broward County, which is involved in this litigation, there are approximately 150 square miles.
3. On September 16, 1977, the Board of Commissioners of Broward County adopted Ordinance No. 77-78, which together with Ordinance No. 78-33 adopted on June 27, 1978, prohibits the locating of an adult nightclub within 1,000 feet of a church, kindergarten, nursery, elementary, middle or high school, or day care center. Additionally, Ordinance No. 78-33 prohibits placement of an adult nightclub within 500 feet of a residentially zoned district. Ordinance No. 77-48 and Ordinance No. 78-33 are incorporated into the Broward County Code of Ordinances at Chapter 39, Article XIII, Section 39-225 through 39-229. These Ordinances are collectively referred to within this Opinion as the "distance ordinances."
4. On March 15, 1985, the Board of County Commissioners adopted Ordinance Nos. 85-17, 85-18, and 85-19 which are incorporated into the Broward County Code of Ordinances at Chapter 39, Article VLIII, Section 39-976 entitled "Uses Permitted," at Chapter 39, Article XIII, Section 39-226 entitled "Designated Uses," and at Chapter 39, Article VIII, Section 39-128 entitled "Terms Defined."
5. The aggregate effect of Ordinance Nos. 85-17, 85-18 and 85-19 is to limit certain designated uses, including adult nightclubs, to a Special Business B-2B Zoning District. "Adult nightclub" is defined within Ordinance No. 85-17 as follows:
Ordinance No. 85-17, amending definitional section of Chapter 39, Article VIII, Section 39-128 of the Broward County Code of Ordinances. These Ordinances are collectively referred to within this Opinion as the "designated uses ordinances."
6. Each of the respective designated uses ordinances contains a severability clause, which provides:
If any section, sentence, clause or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this Ordinance.
7. Prior to the enactment of the designated uses ordinances, adult nightclubs were not restricted to a particular zoning district, although they were subject to the above-mentioned distance ordinances.
8. According to Al Schmou, the County's Senior Planner, there were approximately eight adult nightclubs operating in Broward County at the time of trial, four of which as a result of the annexation of a large commercial area of Pompano Beach.
9. Shirley Maurer, the County's Land Use Supervisor, testified that two or three of the four adult nightclubs in existence at the time that the designated uses ordinances were enacted were granted a change of a non-conforming business certificate of occupancy.
10. At the time this lawsuit was filed, through the present time, there has been only one plot of land in unincorporated Broward County zoned B-2B, measuring approximately 125' by 250' (¾ of an acre) on Griffin Road near the Fort Lauderdale airport. In other words, there is only a single site in all of the unincorporated area of Broward County which is zoned B-2B. No other area qualifies for the zoning use of adult nightclubs at this time, and the procedures adopted by the Broward County Commission require that for any location to be used for that purpose, there must first be a petition for rezoning to B-2B.
11. The Defendant had conducted a site availability study, the results of which were submitted to the Court both by oral testimony and written documentation. The stated purpose of the study was "to determine sites eligible for B-2B Special Business District Zoning within Unincorporated Broward County." The criteria used by the County in conducting this study was to review all zoning maps within unincorporated Broward County, including commercial and industrial land use categories and determine where B-2B Zoning Districts could theoretically be permitted. When locating eligible sites, the County further applied the distance requirements both as to any "eligible" unincorporated area and as to any unincorporated area that was near a municipality.
12. Based on this criteria, the County concluded that 26 sites, consisting of approximately 2,434 acres of property within unincorporated Broward County were "eligible" for a B-2B zoning classification. None of the 26 proposed sites are, however, currently zoned B-2B and the County freely admitted that as to each of the 26 proposed sites, a prospective adult nightclub owner would be required to first obtain a zoning change to B-2B within the discretion of the Broward County Commission before opening shop.
13. On May 21, 1985, the President of International Eateries, Inc. filed with the Broward County Building and Zoning Enforcement Division an application for Certificate of Occupancy to make certain modifications to the interior of the building. On June 18, 1985, the Secretary-Treasurer of International Eateries, Inc. filed an affidavit with the Broward County Building and Zoning Enforcement Division stating that proposed improvements to the plaintiff's building would not be used as part of an adult nightclub business. On August 12, 1985, Broward County issued a Certificate of Occupancy to the plaintiff to operate a restaurant with alcoholic beverages at 3561 North Federal Highway in the unincorporated area of Broward County. On the face of the Certificate of Occupancy, it expressly stated that the certificate was conditioned upon the understanding that no nude or semi-nude entertainment activities would be permitted at the location.
14. On April 1, 1986, the defendant served the plaintiff with a Notice of Violation for operating an adult nightclub in violation of Chapter 39, Article XIII, Sections 39-225 through 39-226, Broward County Code of Ordinances. The cited provisions of the Broward County Code of Ordinances prohibit the operation of an adult nightclub within 500 feet of a residential district or within 1,000 feet of a church. In the same Notice of Violation, the defendant cited the plaintiff for operating a business without a proper zoning certificate in violation of Chapter 39, Article II, Section 39-10, Broward County Code of Ordinances.
15. On April 10, 1986, the defendant served an additional Notice of Violation on the plaintiff for operation of an adult nightclub in a B-3 General Business Zoning District in violation of Chapter 39, Article LVIII, Section 39-976, Broward County Code of Ordinances, which section provides that an adult nightclub is a permitted use only in the Special Business B-2B Zoning District.
16. The existing zoning on the plaintiff's property is General Business B-3 Zoning District. The existing land use designation for the subject property is commercial. The plaintiff's restaurant and nightclub is located on parcel "A" of Cresthaven No. 9 Replat. The prior use of the plaintiff's property,...
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