Redner v. City of Tampa

• Decision Date: 07 July 1989
• Docket Number: No. 89-556-CIV-T-17.,89-556-CIV-T-17.
• Citation: 723 F. Supp. 1448
• Parties: Joe REDNER et al., Plaintiffs, v. CITY OF TAMPA, Defendant.
• Court: U.S. District Court — Middle District of Florida

723 F. Supp. 1448

Joe REDNER et al., Plaintiffs, v. CITY OF TAMPA, Defendant.

No. 89-556-CIV-T-17.

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

July 7, 1989.

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

Mike Fogarty, Tampa, Fla., for defendant.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on the report and recommendation of the Honorable Elizabeth A. Jenkins, filed on April 25, 1989, Plaintiffs' amended response and objection, filed on June 16, 1989, and Defendant's response thereto, filed on June 23, 1989.

The report and recommendation addresses whether this Court should abstain from exercising its jurisdiction. The Court has independently examined the record, and considered the objections and response of the parties.

Plaintiffs chose to litigate in state court, and substantial resources have been consumed by the progress of that case to date. Plaintiffs have necessarily litigated the same issues, and that forum is adequate to determine the rights of the parties. Any issue not raised in state court could have been raised there. The Court adopts the report and recommendation in its entirety, and denies the objections of Plaintiffs. Accordingly, it is

ORDERED that this case be remanded for further proceedings in the Hillsborough County Circuit Court.

DONE and ORDERED.

REPORT AND RECOMMENDATION

ELIZABETH A. JENKINS, United States Magistrate.

THIS CAUSE comes on for consideration of an eleven count verified complaint seeking declaratory and injunctive relief, including a temporary restraining order, filed on April 18, 1989. This matter has been referred to the undersigned magistrate by the district court judge for a report and recommendation.¹ A hearing attended by counsel for plaintiffs and defendant was held on April 19, 1989.

Plaintiffs Joe Redner and Edith Ann Burns seek to restrain defendant City of Tampa (the City) from enforcing its adult use ordinance against property owned by Mr. Redner and businesses operated by Ms. Burns. Plaintiffs also seek a declaration that the enactment and enforcement of the ordinance violates plaintiffs' constitutional rights under the First, Fifth and Fourteenth Amendments to and Article 1, Section 10 of the Constitution of the United States as well as certain provisions of Florida law and is also barred by principles of equitable estoppel. Jurisdiction is asserted on the basis of the Declaratory Judgment Act, 28 U.S.C. § 2201 as well as 42 U.S.C. § 1983 and § 1985.

I

On September 30, 1982, the Tampa City Council passed Ordinance 8068-A. Ordinance 8068-A restricts location of adult businesses as defined in the ordinance to no more than 500 feet of a residentially-zoned district and prohibits concentration of any adult business to no more than one per 1,000 feet. Ordinance 8068-A, was superceded and reenacted, on February 16, 1984 as a zoning regulation as part of the adoption of Chapter 43A of the City of Tampa Code. Both Ordinance 8068-A and Chapter 43A Section 219 of the Code contain virtually identical provisions regulating the location of adult use businesses. Violation of the adult use ordinance is punishable by up to six months imprisonment and/or a maximum $500 fine.²

Plaintiff Redner's challenges to the adult use ordinance have been the subject of considerable litigation in the state courts, both civil and criminal.

Plaintiffs contend that due to the lifting of a stay in state court on April 18, 1989 that defendant is now free to enforce the ordinance against them, thereby exposing plaintiffs to irreparable harm by lodging of criminal charges, repeated arrests, loss of business and the unlawful suppression of nude dancing which plaintiffs assert is a protected form of expression under the First Amendment.

Defendant contends that this court should refuse to exercise jurisdiction over this action pursuant to the abstention doctrine due to pending state court proceedings involving the same issues. Defendant also contends that plaintiffs are collaterally estopped from litigating certain challenges to the adoption and enforcement of the adult use ordinance which had been rejected by a county court judge in a criminal prosecution brought against plaintiff Redner for ordinance violations.

The following chronology of state court proceedings is taken from the record and exhibits submitted by the parties.

1. On or about September 30, 1987, the City brought criminal charges in state court against plaintiff Redner and others for non-compliance with Ordinance 8068-A. A motion to dismiss the charges attacking the constitutionality of the ordinance was filed by all defendants. Hillsborough County Judge James D. Arnold was assigned the consolidated cases.

2. In mid-1988, plaintiff Redner filed a civil action in state court attacking the validity and enactment of Ordinance 8068-A and Chapter 43A of the Code which involved substantially the same constitutional challenges to the ordinance brought in this federal action.³ Circuit Court Judge Daniel E. Gallagher was assigned the case and on September 12, 1988 granted a motion by the City of Tampa to stay proceedings in the civil case pending resolution of the motions to dismiss in the criminal case.⁴

In both the civil and criminal cases, the City agreed not to prosecute additional violations of Ordinance 8068-A and Chapter 43A of the Code pending the resolution of the criminal charges brought pursuant to Ordinance 8068-A.

3. On January 31, 1989, Judge Arnold entered a written order upholding the constitutionality of Ordinance 8068-A against challenges made by Mr. Redner and others. The court concluded that the ordinance was not overbroad under the First Amendment, did not violate defendants' due process rights and was not an unconstitutional bill of attainder. The court also found that defendants had failed to demonstrate that the City should be equitably estopped from enforcing the ordinance as an exercise of its zoning authority (Pltfs' Exh. 1). In determining the issues presented, the court held a lengthy evidentiary hearing and personally visited seventy-seven (77) site locations to determine whether the ordinance permitted reasonable alternative means of communication in compliance with constitutional standards.

4. The City of Tampa subsequently notified plaintiff Redner and others that it would commence enforcement of the ordinance effective March 1, 1989. Plaintiff Redner thereafter sought and received an order from Judge Gallagher staying enforcement of the ordinance pending resolution of certain issues in the civil case.

5. On or about March 13, 1989 plaintiff Redner was convicted of violating Ordinance 8068-A in the case assigned to Judge Arnold. An appeal is currently pending. Plaintiff Redner was sentenced by Judge Arnold to a period of probation with the special condition that plaintiff's business be in compliance with the ordinance as of 5:00 p.m. that day. According to the verified complaint, plaintiff Redner immediately thereafter transferred ownership of his business to plaintiff Edith Ann Burns, in an effort "to comply with the illegal, unreasonable and arbitrary special condition of probation." (Dkt. 1, para. 66) However, on March 15, 1989, a probation affidavit and warrant for violation of probation was issued alleging plaintiff Redner to be in violation of the special condition of probation by failing to bring certain property into compliance as required in the condition of probation. A probation violation hearing is set for May 4, 1989. The case is now assigned to Hillsborough County Judge Barbara Fleischer as a result of a recusal by Judge Arnold.

6. On or about March 15, 1989, the City filed counter-claims against plaintiff Redner and named plaintiff Edith Ann Burns as an additional "counter-claim defendant" in the civil action instituted by plaintiff Redner and assigned to Judge Gallagher in state court.

7. Judge Gallagher set a hearing for April 13, 1989 on plaintiff Redner's application for a temporary injunction. The hearing was continued for several weeks due to the unavailability of counsel for plaintiff who was involved in a case pending in federal court. On April 14, 1989, Judge Gallagher entered an order dissolving the stay against the City's enforcement of the adult business ordinance as of 12:01 a.m. April 18, 1989 in deference to Judge Arnold's ruling upholding Ordinance 8068-A. On April 18, 1989 Judge Gallagher heard argument on whether the current adult use ordinance (Chapter 43A of the City Code) had been enacted in compliance with state and local law.

On April 18, 1989, plaintiffs Redner and Burns instituted this action in federal court. On April 19, 1989, the City issued citations to plaintiffs for violation of Chapter 43A of the Code. Counsel for the City states that although daily citations are not anticipated, it is the City's intent to enforce violations of Chapter 43A as often as necessary to advise plaintiffs of the need to bring their business and property into compliance with the law. Counsel anticipates that citations will be issued approximately every three weeks or so. Counsel for the City has agreed to defer issuance of additional citations for violations of the adult use ordinance against plaintiffs Redner and Burns until May 1, 1989 to permit this court to fully consider the issues presented.

II

Federal courts have an obligation to adjudicate claims that are properly presented and within their subject matter jurisdiction. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). However, under the abstention doctrine, the court may avoid adjudicating a dispute in certain limited instances. The court may decline to adjudicate a claim in order to (1) avoid interfering with the conduct of ongoing state court proceedings, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); (2) avoid deciding an issue of federal constitutional...