Rameses, Inc. v. County of Orange

• Citation: 481 F.Supp.2d 1305
• Decision Date: 03 April 2007
• Docket Number: No. 6:04CV1824ORL28KRS.,6:04CV1824ORL28KRS.
• Parties: RAMESES, INC., Plaintiff, v. COUNTY OF ORANGE, Defendant.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

481 F.Supp.2d 1305

RAMESES, INC., Plaintiff, v. COUNTY OF ORANGE, Defendant.

No. 6:04CV1824ORL28KRS.

United States District Court, M.D. Florida. Orlando Division.

April 3, 2007.

Order Denying Clarification April 6, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steven Gerald. Mason, Law Office of Steven G. Mason, Orlando, FL, for Plaintiff.

Linda Brehmer Lanosa, Orlando, FL, Gary M. Glassman, City of Tampa, Legal Department, Tampa, FL, for Defendant.

AMENDED ORDER

ANTOON, District Judge.

Plaintiff Rameses, Inc., d/b/a Cleo's, operates an erotic dancing establishment in Orlando, Florida, licensed by Defendant, Orange County ("the County"). Plaintiff brought this action seeking declarative and injunctive relief to prevent the County from enforcing certain provisions of its Adult Entertainment Code ("AEC").

This cause is before the Court on Defendant's Dispositive Motion for Final Summary Judgment (Doc. 53) and Memorandum of Law in support thereof (Doc. 66). Plaintiff has filed a Response in Opposition to Orange County's Motion for Summary Judgment. (Doc. 95.) In addition to asking that Defendant's motion be denied, Plaintiff asks that "relief [be] grafted to the plaintiff." (Id. at 1.) The Court construes Plaintiffs Memorandum in Opposition as a cross-motion for summary judgment. See United States v. M/V Jacquelyn L., 100 F.3d 1520, 1521-22 & n. 2 (11th Cir.1996); Centerfolds v. Town of Berlin, 352 F.Supp.2d 183, 186 (D.Conn. 2004). For the following reasons, Defendant's Motion for Summary Judgment is granted in part and denied in part; Plaintiff's Cross-Motion for Summary Judgment is also granted in part and denied in part.

I. Background

In 2004, members of the County's Metropolitan Bureau of Investigation ("MBI") arrested patrons and employees of Cleo's for criminal violations following an extensive undercover investigation called "Operation Overexposed." (First Am. Compl. ¶¶ 14, 21.) As a result of those arrests, Plaintiff anticipates that the County will suspend or revoke its adult entertainment license pursuant to the AEC's suspension and revocation provisions. (Id. ¶¶ 9, 14.) The County initiated suspension proceedings against Plaintiff in 2002 after a similar raid that resulted in the arrests of dancers. (Id. at 3-4.) As of yet, however, the County has neither taken action against Plaintiff's license nor expressed any intention of doing so.

II. Summary Judgment Standard

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548.

In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. In this case, neither party alleges that there are any material facts in dispute and each claims that it is entitled to judgment as a matter of law.

III. Claims

Plaintiff has raised facial and as-applied challenges¹ to certain criminal provisions of the AEC. Plaintiff challenges: (1) the third definition of "specified sexual activity," ("SSA"),² as prohibited by section 3-129(3); (2) section 3-129(6), which prohibits the simulation of SSA; and (3) section 3-129(9), which prohibits certain intentional contact between an adult entertainment establishment worker and a customer.

Plaintiff has also raised facial challenges³ to certain suspension and revocation provisions of the AEC. Specifically, Plaintiff contends that the AEC's suspension and revocation provisions violate the First, Fifth, and Fourteenth Amendments by: (1) allowing the County "to suspend an adult license based upon an alleged violation of the law (without conviction or any court review)"; (2) allowing the County "to suspend or revoke an adult entertainment license based upon the unilateral actions of an individual defendant who enters a plea of no contest," thereby imposing "a form of strict or vicarious liability upon the owner or holder of the adult entertainment license"; (3) failing to "provide any time table by which the [C]ounty ... must initiate and notify the holder of an adult entertainment license that it is seeking to suspend or revoke the license" following a violation; (4) allowing the County "to revoke an adult entertainment license based upon the conduct of an `operator' ... without any specific showing of wrongdoing or culpable conduct on the part of the license holder" and without providing the license holder "reasonable notice or an opportunity ... to remedy the purported criminal conduct"; (5) allowing the County "to unilaterally select []without any independent objective or neutral guidelines[] a hearing officer who will determine if a suspension or revocation shall be imposed"; and (6) shifting "the burden of proof to the owner of the establishment to establish that the conduct or acts which form the basis of the suspension or revocation contain a significant expressive element." (First Am. Compl. ¶¶ 30-38.)⁴

IV. Ripeness

The County argues that Plaintiffs claims are not ripe because no action has been taken against Plaintiffs license for violations stemming from the 2004 raid. Any threat of suspension is purely speculative, according to the County, in part because William Lutz, director of the MBI, has stated that the MBI lacks sufficient evidence to recommend suspension to the County. (Def.'s Mem. at 2; Lutz Dep. 8-9, Feb. 1, 2006.) Alternatively, the County claims that if even if there were a threat of suspension, Plaintiff is permitted to remain open for business pending administrative and judicial review of the decision. See AEC §§ 3-35(e) & 3-36(f). Thus, the County contends, no hardship will befall Plaintiff for currently withholding judicial consideration of these claims.

Arguing that the present controversy is ripe for consideration, Plaintiff relies on the fact that the challenged substantive criminal provisions chill the constitutionally protected expression of the Cleo's dancers. (First Am. Compl. ¶¶ 5, 24.) In addition, Plaintiff points out that a similar raid and accompanying arrests occurred in 2002, resulting in an unsuccessful attempt by the County to suspend. Plaintiffs, license. (Id. ¶¶ 8, 10, 11, 13.) Plaintiff expects the County to initiate similar suspension proceedings following the more recent arrests but believes that this suit has caused the delay. (Id. ¶ 22.) Plaintiff relies on two pieces of information to support its contention that the County intends to suspend its license. First, attorneys for the MBI have indicated that no decision has been made as to whether the MBI will refer the Cleo's matter to the County. (Id. ¶¶ 15-17, 21.) Second, a "case progress sheet" reveals that a Cleo's dancer was offered a plea and a possible probation reduction if she serves as a witness in the "CLEO case" or if her statement about the "management activities" of Cleo's is helpful. (Id. ¶¶ 19-20.)

Ripeness determinations present two relevant inquiries: "1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration." Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir. 2005) (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)). Under this standard, Plaintiffs challenges to the substantive criminal provisions of the AEC and its facial challenges to the suspension provisions are ripe. "[P]rospective enforcement of an ordinance has been found sufficient to generate a live case." D.H.L. Assocs. v. O'Gorman, 199 F.3d 50, 54 (1st Cir.1999). This is particularly so when constitutional claims are at issue. Id.; Sable Commc'ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) ("A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.").

The criminal provisions challenged here regulate the very movements an erotic dancer can make during a performance. Dancers at Cleo's have been arrested for violating these provisions. Because the ordinances criminalize the protected expression conveyed through erotic dance, the ordinances chill the dancers' exercise of free expression. See Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville, 274 F.3d 377, 399-400 (6th Cir.2001). Thus, those claims are ripe for review even though the County has not yet sought to suspend or revoke Plaintiffs license based on the 2004 arrests. Plaintiffs facial challenges to the AEC's license suspension and revocation provisions are also ripe. See id. at 399 (holding that plaintiffs had standing to pursue facial challenges to a licensing scheme even though the government had "not yet sought to suspend or revoke plaintiffs licenses" and that those purely legal claims were ripe). The claims are justiciable and, if Plaintiff must comply with an unconstitutional ordinance, Plaintiff will be prejudiced by the withholding of judicial review.

V. Res Judicata

The County contends that some of Plaintiffs...