Leverett v. City of Pinellas Park

• Decision Date: 15 November 1985
• Docket Number: No. 84-3867,84-3867
• Citation: 775 F.2d 1536
• Parties: Jack LEVERETT, et al., Plaintiffs-Appellants, v. The CITY OF PINELLAS PARK, et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1536

775 F.2d 1536

Jack LEVERETT, et al., Plaintiffs-Appellants, v. The CITY OF PINELLAS PARK, et al., Defendants-Appellees.

No. 84-3867

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Nov. 15, 1985.

Donald E. McLawhorn, Tampa, Fla., for plaintiffs-appellants.

Edward D. Foreman and Thomas E. Reynolds, St. Petersburg, Fla., for defendants-appellees.

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

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

I. FACTS

Appellants in this case are Jack Leverett and Tom Whitaker, officers and sole stockholders of Fresh Start, Inc., a Florida corporation, and Fresh Start, Inc., a Florida corporation d/b/a "Strip Ahoy." Leverett and Whitaker own and operate Strip Ahoy, which offers live entertainment in the form of nude dancing. Strip Ahoy does not have a license to serve alcohol; however, we assume, as did the district court, that patrons of the business are allowed to bring in alcoholic beverages to drink while viewing the dancing.

On September 15, 1984, the City of Pinellas Park enacted two ordinances, Sec. 16-110 and Sec. 16-112, which prohibit nudity in commercial establishments under certain circumstances. Section 16-110 provides that anyone who is "serving food, drink or alcoholic beverages," who is "seating or directing customers to seats" or who is "mingling, coming in contact with, or likely to come in contact with, or in close proximity to customers ... within areas where food, drink or alcoholic beverages are served" may not do so in a nude or semi-nude state. It provides for criminal penalties against "any person maintaining, owning, or operating a business" who "suffer[s], permit[s], require[s] or otherwise direct[s]" these activities to go on as well as against anyone who carries on these activities. It also calls for suspension and/or revocation of the occupational license of any business at which a violation resulting in conviction takes place. Section 16-110 expressly excludes from its coverage any "live act, demonstration, exhibition, performance or entertaining which may be protected by [state and federal] constitutional provisions guaranteeing freedom of expression." Section 16-112 prohibits "nude or semi-nude entertainment in any commercial establishment" and provides for criminal penalties against anyone who engages in such entertainment or who, while maintaining, owning or operating any commercial establishment, suffers, permits, requires or otherwise directs anyone to engage in such entertainment.

These ordinances became effective on or about September 24, 1984, and appellants immediately thereupon ceased offering live entertainment in the form of nude dancing to avoid being arrested and losing the occupational license of the business. At no time have appellants been threatened with prosecution under these ordinances.

On October 11, 1984, appellants Leverett and Whitaker filed a complaint in the United States District Court for the Middle District of Florida against the City of Pinellas Park, Cecil Bradbury as Mayor of Pinellas Park, and David Milchan as Chief of Police of Pinellas Park, challenging the validity of the ordinances and requesting declaratory and injunctive relief under, inter alia, 42 U.S.C. Sec. 1983 and the First, Fifth and Fourteenth Amendments to the Constitution of the United States. On October 26, 1984, the district court, after a hearing on appellees' motions to dismiss for lack of standing and failure to state a cause of action as well as on the merits of the First Amendment claims, dismissed the complaint without prejudice on the ground Leverett and Whitaker lacked standing to challenge injury to the corporation, giving appellants leave to refile. Appellants amended their complaint to include as plaintiff the corporation, Fresh Start, Inc., d/b/a "Strip Ahoy." On November 15, 1984, the district court entered an order dismissing the amended complaint with prejudice against Leverett and Whitaker on the ground they lacked standing to pursue their claims and against the corporation on the ground the statutes are facially valid. Appellants filed notice of appeal on December 12, 1984.

II. LEGAL ISSUES

On appeal, appellants raise the issue whether Leverett and Whitaker, owners of a commercial establishment that provides nude dancing as entertainment, have standing to challenge the two ordinances in question on First Amendment overbreadth grounds and the issue whether the appellees have met the burden of showing the requisite governmental interest in passing the two ordinances to overcome a First Amendment challenge to their validity.

A. Standing.

The district court dismissed the initial complaint on the ground that an individual shareholder is not authorized to sue for injury to the corporation, citing Erlich v. Glasner, 418 F.2d 226 (9th Cir.1969). The complaint was amended to add the corporation, Fresh Start, Inc., as plaintiff, and the amended complaint was dismissed as to the individual plaintiffs, again on the ground they lacked standing. In light of the liberal standing rules applied to persons challenging government action on First Amendment overbreadth grounds, as are appellants in this case, we must reverse the dismissal of the district court as to Leverett and Whitaker.

Erlich, upon which the district court relied, did not involve the First Amendment and so was not relevant to the standing issue before the court. A panel of this circuit, in Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985), applied the liberal standing rules utilized in First Amendment challenges of overbreadth and granted standing to the owner of a business seeking to protect a sign distinguishing his place of business. The court in Solomon noted that the proper application of standing requirements in the context of an overbreadth challenge focuses on what the ordinance seeks to regulate rather than on what the individual seeks to protect and held that the owner had standing, although he had not alleged any personal injury.

In any case, Leverett and Whitaker have alleged more than the threat of mere economic damage due to their positions as stockholders in a business regulated by the ordinances. They have also shown that they are personally subject to arrest and imprisonment or the imposition of fines under the ordinances and so have alleged standing in their own right. That criminal proceedings against appellants were not pending at the time this action commenced does not, as appellees suggest, negate their claim of injury arising from the ordinances. (Appellees apparently contend that appellants have not established the "injury in fact" requirement for standing.) The standing of an individual who is not party to state criminal proceedings under a law challenged on First Amendment grounds has been recognized implicitly in the Supreme Court cases holding that such an individual is not barred by federalism considerations from pursuing the First Amendment claim in federal court. See, e.g., Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (federal court may consider request for preliminary injunctive relief in First Amendment case where no state criminal proceedings pending); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (federal court may consider request for declaratory relief in First Amendment case where no state criminal proceedings pending). ¹ Federal courts will not place a plaintiff in the position of choosing between intentionally flouting state law to be eligible for relief and foregoing what he or she believes to be a constitutionally protected activity to avoid criminal prosecution. Steffel, supra, 415 U.S. at 463, 94 S.Ct. at 1217.

Nonetheless, where a suit presents such an "anticipatory" challenge, the standing of the plaintiffs will depend on whether the threat of prosecution under the ordinance is "genuine" or "imaginary" and "speculative." Steffel, supra, 415 U.S. at 460, 476, 94 S.Ct. 1215, 1223; Hardwick v. Bowers, 760 F.2d 1202, 1205 (11th Cir.1985); High Ol' Times v. Busbee, 621 F.2d 135, 139 (5th Cir.1980). A court may estimate the likelihood of prosecution by examining the interest of the state in enforcing and the interest of the plaintiffs in violating the statute. Hardwick, supra, 760 F.2d at 1205; International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 818 (5th Cir.1979). Past enforcement patterns may shed light on the state's interest in prosecuting, and the interest of the state need not take the form of a specific threat of prosecution. Hardwick, supra, 760 F.2d at 1205. In fact, in some cases, the authentic interest of the plaintiff in engaging in the prohibited conduct can establish standing even though the only threat of enforcement comes from the very existence of the statute. Hardwick, supra, 760 F.2d at 1206. A court can be most certain that a constitutional challenge grows out of a genuine dispute where the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct his or her affairs. Eaves, supra, 601 F.2d at 819.

Applying these principles to the case at hand, there can be no doubt that appellants' interest in challenging the statute is authentic. Appellants ceased offering nude dancing at Strip Ahoy because the ordinances at issue directly prohibit this activity. The ordinances thus interfere, directly and continuously, with the way appellants normally conduct their affairs. Moreover, the very activity appellants have been required to forego is the type of activity alleged to be constitutionally protected and therefore impermissibly infringed by the ordinances. "A plaintiff has a stronger claim for standing if, in addition to authenticity of the interest, he or she is best suited to challenge a law." Hardwick, supra, 760 F.2d at 1206. Finally, although appellants have received no specific threat of prosecution under...