International Food & Beverage Systems v. City of Fort Lauderdale

• Decision Date: 25 July 1986
• Docket Number: No. 85-5728,85-5728
• Parties: INTERNATIONAL FOOD & BEVERAGE SYSTEMS, a partnership, Plaintiff-Appellee, v. CITY OF FORT LAUDERDALE, a municipal corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1520

794 F.2d 1520

INTERNATIONAL FOOD & BEVERAGE SYSTEMS, a partnership, Plaintiff-Appellee, v. CITY OF FORT LAUDERDALE, a municipal corporation, Defendant-Appellant.

No. 85-5728.

United States Court of Appeals, Eleventh Circuit.

July 25, 1986.

Gerald L. Knight, Lindsey A. Payne, Asst. City Attys., Fort Lauderdale, Fla., for defendant-appellant.

Richard L. Wilson, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, HENDERSON ^* and NICHOLS ^**, Senior Circuit Judges.

NICHOLS, Senior Circuit Judge:

This appeal asks us to review a judgment of the United States District Court, Southern District of Florida, which permanently enjoins the appellant city from enforcing its ordinances No. C-84-91 and C-84-100. We vacate and remand for further consideration in light of City of Renton v. Playtime Theatres, Inc., --- U.S. ----, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). That case reverses a decision below, 748 F.2d 527 (9th Cir.1984), on which the above district court relied as authority. We invite attention to other matters also that ought to be considered before a municipality is prevented from enforcing ordinances important to it.

Background

This case relates to the right or absence of right of the City of Fort Lauderdale to enforce ordinances which impose location restrictions on what we will call, for brevity, nude bars, i.e., bars which sell liquor under license and which have partly or wholly nude persons on the premises during open hours as waitresses, performers, or customers. Though the record does not make the points as clear as is really needed for non-Floridian judges, we assume that Fort Lauderdale has the usual powers of municipality to enact zoning laws of the nationally familiar type as, e.g., dealt with in the Renton case mentioned above, including laws controlling the business location of liquor licenses, but that the state has a body independent of that and other municipalities, to regulate and control the liquor trade, similar to the New York body which was a litigant in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981). If any such state body has a rule or regulation bearing on the instant controversy, it was not called to our attention. We further assume that the powers of Fort Lauderdale respecting zoning are vested in the persons, consisting of a mayor and commissioners (number not stated), who enacted the ordinances here involved.

Fort Lauderdale is or was a community of 31 square miles and 156,000 inhabitants. Consultation of a road map reveals it is located 10 miles, more or less, north of the vast and growing metropolis of Miami, and on the Atlantic Ocean. Its amenities included an airport, a seaport, churches, colleges, schools, parks, residential areas, and the federal courthouse where this case was tried. They also included in 1984, 10 nude bars. According to testimony, the community was known in certain circles, at least, as "Fort Liquordale." Since the injunction, there have been added additional nude bars according to undisputed statements at oral argument.

Mr. Ritchie, planning director for the city, had been working on the involved ordinances since late summer of 1983, as directed by the city manager. Shortly before enactment of the first, October 1984, it was learned that a well known nude bar, the Centerfold Lounge, was looking for a location in Fort Lauderdale as it was losing the site it then occupied elsewhere, by condemnation for airport expansion. Mr. Ritchie had the office of the city attorney prepare a draft and he laid it before the commissioners. Before they voted, he displayed a zoning map of the city with an overlay he prepared for the purpose, showing 25 sites where he said a nude bar could locate in conformity with the draft ordinance. This was in addition to the 10 nude bars already operating in the city, so 35 nude bars in all would have been permissible if the count of available sites was right.

The draft included the usual provision sparing nonconforming uses existing on the date of adoption, i.e., the 10 existing nude bars were not required to move or close if on nonconforming sites. The other provisions were that a nude bar must not operate within 750 feet of "residentially zoned" land or the same distance from any church, school, public park, playground, or another nude bar. There was a separability clause, i.e., if any part should be rendered invalid by court decisions, the remainder would continue in full force. The ordinance was to take effect on passage.

None of the commissioners challenged the estimate of 25 sites available under the ordinance, but one pointed out that there was a considerable amount of nonconforming residential use, that is, people dwelling in areas zoned for other purposes. He thought they too should not be required to be close neighbors of nude bars. The original ordinance was enacted as Mr. Ritchie had submitted it, but two months later the commissioners enacted the second ordinance which amended the first to make it provide that a nude bar could not locate within 750 feet of a parcel zoned or used for residential purposes. Mr. Ritchie seems to have thought this did not materially reduce the estimate of 25 sites still available for newcomer nude bars, and so testified, but there was contrary evidence too.

The ordinance, originally and as amended, incorporated a fact finding by the commissioners that nude bars in close proximity to residential areas, schools, churches, etc., have "a detrimental effect on such uses," and that the regulation was necessary "to preserve public peace and good order, the integrity of residential neighborhoods, and other sensitive land uses," the "sensitive use," we presume, being meant as one wilted or blighted by the proximity of an obnoxious use.

Neither the commissioners, nor afterwards, the court, had before them any evidence or recommendation by the police that the ordinance was needed for police purposes, i.e., to control crime, and we must and do assume that such evidence did not exist. The source of recommendation was the city planner, not the chief of police. There was testimony by a couple of residents that the appearance of a nude bar in their neighborhood was followed by the appearance of prostitutes, but the trial court disregarded this, as do we. It was not of compelling probative value. There was no evidence of agitation for the ordinances by any person or persons not connected with the city government. There was no evidence of moral disapproval of nude bars, at least for recourse by others, on the part of anyone connected with the city government. Mr. Ritchie did assert he never entered them himself.

Mr. Moline, a night club operator and president of the Centerfold Lounge which, he testified, "had nude female dancers" and served alcoholic beverages, being displaced from Dania, sought a location in Fort Lauderdale, and being prevented by the above ordinance from selecting his first and second choices, picked one that was too isolated for that kind of business, and it was a disaster financially. His was the only place of its kind to open between the promulgation of the ordinance, and the injunction. He has since tried running a "Country and Western" night club called "San Antonio Rose" at the same location, and that is a disaster too.

There was evidence that the nude bar trade generally regarded the ordinances as total barriers to their entering Fort Lauderdale and that was why, except Mr. Moline, no one else attempted to enter while they were in effect.

The plaintiff, International Food & Beverage Systems, owns and operates seven businesses of the nude bar type in widely separate locations, and desired to open one called Solid Gold in Fort Lauderdale. The Solid Gold would have been of high class with performers flown in from Las Vegas. A site had been selected and a building obtained and decorated. It would have been close to a residential area, but plaintiff never had experienced difficulty from proximity of its other sites to residential areas. It filed this suit for injunction or declaratory judgment without, apparently, seriously considering any of the 25 sites Mr. Ritchie had said were available.

At the trial, testimony on behalf of the plaintiff was focused on the unsuitability of the 25 sites. Some were physically absurd, for example, one in the municipal water works. Some would have been prohibited by their proximity to residences, schools, etc., i.e., by the terms of the ordinance itself, as amended. Others would have been on isolated sites, whereas the necessities of the nude bar business required location on or near a busy through highway, as was the location selected for Solid Gold. Still other of Mr. Ritchie's locations would have been in prohibitive high-rent portions of the city.

The testimony the trial judge heard, besides the above, included a detailed survey of the 25 sites, one by one, but Mr. Ritchie maintained that all, or nearly all, were available despite the difficulty added by the amendment suggested after he had prepared the overlay originally. The trial judge, in the end, made no finding as to just how many sites were available, though he conceded it might be a dozen, which added to the existing nonconforming uses, would have made 22 nude bars permissible. To him it was not a "myriad" of sites, and he apparently considered the first amendment required the city, if it zoned nude bars at all, to make a "myriad" of sites available for them.

There was no testimony by either side expressing opinions as to, e.g., the impact of nude bars on crime, on property value, or on the raising and education of children, and this was by the court's own choice. He believed both sides could hire experts if he listened to them and they would cancel each other out. There was also, however, no testimony as to the city plan...