T-Marc, Inc. v. Pinellas County

• Citation: 804 F. Supp. 1500
• Decision Date: 07 October 1992
• Docket Number: No. 91-600-CIV-T-17A.,91-600-CIV-T-17A.
• Parties: T-MARC, INC., a Florida corporation, d/b/a "Fantasy"; 8804, Inc., a Florida corporation, d/b/a "The Palace"; Plaza Suite, Inc., a Florida corporation, d/b/a "The Plaza Suite"; J. Marlin Corporation, a Florida corporation, d/b/a "Heavenly Bodies"; and Gemstone Entertainment, Inc., a Florida corporation, d/b/a "Diamond Dolls", Plaintiffs, v. PINELLAS COUNTY, a political subdivision of the State of Florida, and Everett Rice as Sheriff of Pinellas County, Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

804 F. Supp. 1500

T-MARC, INC., a Florida corporation, d/b/a "Fantasy"; 8804, Inc., a Florida corporation, d/b/a "The Palace"; Plaza Suite, Inc., a Florida corporation, d/b/a "The Plaza Suite"; J. Marlin Corporation, a Florida corporation, d/b/a "Heavenly Bodies"; and Gemstone Entertainment, Inc., a Florida corporation, d/b/a "Diamond Dolls", Plaintiffs, v. PINELLAS COUNTY, a political subdivision of the State of Florida, and Everett Rice as Sheriff of Pinellas County, Florida, Defendants.

No. 91-600-CIV-T-17A.

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

October 7, 1992.

COPYRIGHT MATERIAL OMITTED

Luke Charles Lirot, Law Office of Luke C. Lirot, Clearwater, Fla., for plaintiffs.

Howard Mark Bernstein, Susan Hamilton Churuti, Pinellas County Attys. Office, Clearwater, Fla., for defendants.

ORDER REGARDING REPORT AND RECOMMENDATION

KOVACHEVICH, District Judge.

THIS CAUSE is before the Court on a report and recommendation issued by Magistrate/Judge Charles R. Wilson on June 19, 1992. This Court specifically referred the Plaintiffs' motion for preliminary injunction to the assigned magistrate/judge. After conducting an evidentiary hearing, the Magistrate/Judge recommended that the motion for preliminary injunction be granted in part and otherwise denied. Plaintiffs and Defendants ("the County") filed written objections to the report and recommendation on July 2, 1992 and June 30, 1992 respectively.

FACTS

Plaintiffs concur in all factual findings. The County also concurs in the factual findings, except to inform the Court that the ordinance referenced in paragraph 10(d) of the findings of facts was amended, effective March 1992. The Court will address the effect of this amendment below. With the exception of the amendment pertaining to paragraph 10(b), this Court adopts the findings of facts contained in paragraphs 1-14 of the report and recommendation and incorporates them by reference.

STANDARD OF REVIEW

Pursuant to Rule 6.02, Rules of the United States District Court for the Middle District of Florida, the parties had ten (10) days after service to file written objections to the proposed findings and recommendations, or be barred from attacking the factual findings on appeal. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc). After objection, the findings of the Magistrate/Judge are entitled to be adopted unless they are found to be clearly erroneous.

DISCUSSION

The Magistrate/Judge properly stated that Plaintiffs must prove the following four elements, as delineated in Canal Auth. of Fla. v. Callaway, 489 F.2d 567 (5th Cir.1974) to prevail on their motion for preliminary injunction:

a) a substantial likelihood that plaintiffs will prevail on the merits of the claim;

b) irreparable injury unless an injunction is entered;

c) the threatened injury to plaintiffs outweighs the threatened harm that an injunction may cause to the County; and

d) the granting of a preliminary injunction will not be adverse to public interest.

In determining whether Plaintiffs have a substantial likelihood of prevailing on the merits, the report analyzed four main topics:

a) actual evidence of adverse secondary effects;

b) amortization deadlines and adequacy of acceptable alternative sites c) licensing and recordkeeping requirements; and

d) the "three-foot" rule.

Plaintiffs have raised several objections as to each of the four topics. The County has raised objection only regarding the third topic. The Court will address these objections in turn.

A. Challenge One: Actual Evidence of Adverse Secondary Effects

Plaintiffs contend that the court improperly applied the analysis as set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). For the following reasons, this Court adopts the Magistrate/Judge's conclusion that Renton is applicable when analyzing Ordinance 90-65. First, the ordinance at issue in Renton was a zoning ordinance, which prohibited any adult motion picture theater from locating within 1,000 feet of any residential zone, single or multi-family dwelling, church, or park, and within one mile of any school. Id. at 44, 106 S.Ct. at 927. Similarly, Ordinance 90-65 prohibits adult use establishments ("AUE's") from locating within 400 feet of any residentially zoned property, church, school, child care facility, public recreation area, or any other AUE. Because both the ordinance at issue in Renton and Ordinance 90-65 are zoning ordinances, which establish restrictions on the location of certain businesses, they are analogous. Thus, the Magistrate/Judge properly applied the Renton decision.

Second, Plaintiffs contend that the County's reliance on studies conducted by other cities, which evaluate the secondary effects of AUE's, was improper because the studies did not include comparisons of AUE's to other types of establishments. The County relied on the experiences of Seattle, Washington as set forth in Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979), and on reports and studies from Amarillo, Texas; Phoenix, Arizona; New York City, New York; Detroit, Michigan; Beaumont, Texas; Houston, Texas; Austin, Texas; Indianapolis, Indiana; and Oklahoma City, Oklahoma. The County is only required, under the First Amendment, to meet the standard imposed under Renton. In Renton, the Supreme Court stated that:

The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem.

Id. at 51-52, 106 S.Ct. at 931. Thus, Renton only requires that the evidence relied upon is reasonably believed to be relevant to the problem. Renton does not require comparisons to other types of establishments. The Magistrate/Judge concluded, after reviewing each source relied upon by the County, that these sources discuss the same secondary effects the County addresses in its ordinances and are therefore relevant to the problems these ordinances address. Thus, under Renton, the County's reliance upon the experiences of other cities as support for its ordinances was proper.

Third, Plaintiffs contend that the County improperly relied on the studies because the County failed to recognize evidence which rebutted the existence of such adverse secondary effects. This argument fails under International Eateries of Am., Inc. v. Broward County, 941 F.2d 1157 (11th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). In International Eateries, the plaintiff failed to invalidate distance ordinances even where uncontradicted evidence existed that the AUE had not in fact caused any adverse effects on surrounding property values and that the property values had actually increased at a higher rate than before the opening of the AUE. Id. at 1163. See also International Food & Beverage Systems v. Fort Lauderdale, 794 F.2d 1520, 1527 (11th Cir.1986) (Renton does not require the city to actually experience deleterious effects before it may regulate nude bars), aff'd, 838 F.2d 1220 (11th Cir.1988). Thus, this Court adopts the finding that the County is not required to actually experience the secondary effects prior to enacting the ordinance. Rather, the County may rely on the secondary effects suffered by other cities.

In sum, this Court adopts the Magistrate/Judge's finding that Plaintiffs have failed to establish a substantial likelihood of prevailing on this challenge to the ordinances.

B. Challenge Two: Amortization Deadlines and Lack of Acceptable Alternative Sites

Plaintiffs contend that the report erred in concluding that amortization periods have been upheld so long as they do not terminate all reasonable avenues of communication. This Court rejects this conclusion in the report and finds that the appropriate question is whether the particular amortization period is reasonable. See SDJ, Inc. v. City of Houston, 636 F.Supp. 1359, 1371 (S.D.Tex.1986) (stating that the ultimate question is whether an amortization period is reasonable), aff'd, 837 F.2d 1268 (5th Cir.1988).

Moreover, Plaintiffs are correct in their assertion that recoupment of investment is a factor to consider when determining whether an amortization period is reasonable. See SDJ, 636 F.Supp. at 1371. Plaintiffs contend that the one-year amortization period is unreasonable because they have made substantial investments in their establishments. However, the court in SDJ upheld a six-month amortization period as reasonable even though the court recognized that the plaintiffs had made substantial investments in their businesses. Id. The court also noted that "preexisting nonconforming uses are not to be perpetual." Id. Thus, this Court concludes that the one-year amortization period contained in Ordinance 90-65 is reasonable. In fact, much shorter amortization periods have been upheld as reasonable. See Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 830 (4th Cir.1979) (six-month amortization period was sufficient), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980); Northend Cinema, Inc. v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153, 1160 (1978) (ninety-day amortization period was reasonable), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 (1979).

Plaintiffs also contend that adequate alternative sites are not available and that the Magistrate/Judge erred in accepting the County's conclusion that 123 acceptable sites were available at the time the ordinance was enacted. Plaintiffs urge that the failure to consider several factors, such as land use designations, access, utilities, etc., render any determination of alternative sites inconclusive. In SDJ, plaintiffs made a similar...