University Books and Videos v. Metropolitan Dade
| Decision Date | 27 August 1999 |
| Docket Number | No. 96-1337-CIV.,No. 96-0952-CIV.,No. 96-1339-CIV.,No. 96-0995-CIV.,No. 96-1338-CIV.,No. 96-1143-CIV.,No. 96-0996-CIV.,No. 96-0962-CIV.,No. 96-1141-CIV.,96-0952-CIV.,96-0962-CIV.,96-0995-CIV.,96-0996-CIV.,96-1141-CIV.,96-1143-CIV.,96-1337-CIV.,96-1338-CIV.,96-1339-CIV. |
| Citation | 78 F.Supp.2d 1327 |
| Parties | UNIVERSITY BOOKS AND VIDEOS, INC., d/b/a University Books, et al. Plaintiffs, v. METROPOLITAN DADE COUNTY, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Nathaniel L. Barron, Coral Gables, FL, for University Books and Videos, Inc., DBJ Enterprises, Inc., 11711 Book and Video Corp., 2316 Corp., Miami Factor, Inc., Plaintiffs.
Roger J. Schindler, Simon Schindler & Sandberg, Miami, FL, for Perrine Adult Book and Video, Inc., Sun Beach Videos, Inc., John Doe, GoldCoast Book and Video, Inc., 167th Street Corp., James T. Robinson, Angel T. Enterprises, Inc., Plaintiffs.
Stephen Michael Cody, Miami, FL, Perrine Book and Video, Inc., Plaintiff.
Clyde DeWitt, Weston Garrou & DeWitt, Los Angeles, CA, for 14907 SN Corp., Prime Time Book and Video, Inc., Home of the Brave Lane of the Free, Inc., John Doe, Plaintiffs.
Barry Leonard Halpern, Coral Gables, FL, for Bird Road Book and Video, Inc., 7351 XZ, Inc., Mr. Oliver, Inc., Plaintiffs.
Yale Taitz Freeman, Naples, FL, for Home of the Brave Land of the Free, Inc., Plaintiff.
John Darrel McInnis, David Stephen Hope, Dade County Atty's Office, Miami, FL, for Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Plaintiffs' Joint Motion For Summary Judgment Concerning Part II of the Complaint, filed May 26, 1999. Defendant filed its response — along with a Cross-Motion For Summary Judgment — on June 11, 1999, to which Plaintiffs replied on June 18, 1999. The Court heard Oral Argument on the Parties' Motions on June 29, 1999.
On January 16, 1996, the Board of County Commissioners ("Board") of Defendant Metropolitan Dade County ("County") sought to curb the spread of the human immunodeficiency virus ("HIV"), acquired immune deficiency syndrome ("AIDS"), and other sexually-transmitted diseases by enacting Ordinance 96-13.1 See Metropolitan Dade County Ordinance No. 96-13, preamble (Jan. 16, 1996). The primary goal of Ordinance 96-13 was to prohibit sexual activity2 in adult bookstores and adult video stores.3 See id. at § 2(3). In order to ensure that sexual activity does not occur in adult bookstores and adult video stores, Ordinance 96-13 strictly regulates viewing rooms,4 holes in interior walls,5 and lighting within these establishments. See id. at § 2(4). Presumably to ease in monitoring and enforcement, Ordinance 96-13 further requires the prominent posting of the names and addresses of such stores' owners and operators. See id. at § 2(5).
Under Ordinance 96-13, each incident of sexual activity may be the basis for a separate violation. See id. at § 2(6)(a). Civil monetary penalties are to be imposed according to the following schedule: (a) $100 for a person who engages in sexual activity at an adult minimovie arcade, (b) $1000 for an owner/operator who allows sexual activity at an adult minimovie arcade, (e) $500 for an owner/operator who fails to provide only single-seat chairs in viewing rooms, (d) $500 for an owners/operator who fails to provide minimum lighting, (e) $500 for an owner/operator who fails to provide permanently open entranceways into viewing rooms, and (f) $500 for an owner/operator who fails to post the names and addresses of the store's owners/operators. See id. at § 2(6)(c). In addition, Ordinance 96-13 imposes a criminal penalty of not more than $1000 or not more than 60 days in jail, or both, on owners/operators of adult bookstores and adult video stores who provide or knowingly allow holes in interior walls that are used for sexual activity between persons in adjoining rooms. See id. at § 2(6)(b). Any adult bookstore or adult video store that is found to have violated Ordinance 96-13 three or more times in any six-month period is declared a public nuisance that endangers the health, safety, and welfare of the County's residents. See id. at § 2(7). Once declared a public nuisance, the store is subject to an injunction closing it. See id.
Plaintiffs operate adult bookstores and adult video stores in unincorporated areas of the County. See Part II of Compl., at ¶ 25. Plaintiffs allege that enforcement of Ordinance 96-13 would violate the following federal and state laws: (1) 42 U.S.C. § 1983, by infringing upon Plaintiffs' right to free speech and expression, as guaranteed by the First and Fourteenth Amendments to the United States Constitution, (2) Article I, section 4 of the Florida Constitution, which also protects Plaintiffs' right to free speech and expression, and (3) Article I, section 23 of the Florida Constitution, which secures Floridians against unreasonable infringements on the right to privacy. See id. at ¶¶ 30-63. Plaintiffs seek a declaration that Ordinance 96-13 is invalid and unenforceable, a permanent injunction prohibiting the County and its agents, employees, or attorneys from enforcing Ordinance 96-13, and reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 1988. See id. at 49-50.
By its terms, Ordinance 96-13 was to become effective on March 16, 1996. See Ordinance 96-13, § 7. Before these cases were removed to federal court, however, a state court entered a preliminary injunction enjoining the County from enforcing the Ordinance. See Order Vacating Stay, June 17, 1998, at 5. Defendant appealed this Court's decision not to dissolve that injunction. See id. In an unpublished decision entered November 17, 1998, the Eleventh Circuit Court of Appeals held that, because the Parties had stipulated to the state court's entry of the preliminary injunction and had not moved this Court to withdraw that stipulation, the injunction remained in force. See University Books v. Miami-Dade County, No. 97-4101, 1998 WL 819870 (11th Cir. Nov. 17, 1998). As such, since the County has been unable to enforce Ordinance 96-13 in the three years since its enactment, Plaintiffs have yet to suffer any deprivation of their rights of free speech and privacy.
In their Motion For Summary Judgment, Plaintiffs argue that they are entitled to judgment as a matter of law for several reasons. First, Plaintiffs contend that Ordinance 96-13 is unconstitutionally overbroad in that it applies by its terms to any business offering any material that is harmful to minors, rather than to only those establishments whose businesses offer a substantial proportion of such material. See Pls.' Mot., at 3-10. Plaintiffs suggest that this overbreadth transforms the Ordinance from a content-neutral time, place, and manner regulation into a content-based regulation of protected speech, which presumptively violates the First Amendment. See id. Second. Plaintiffs maintain that Ordinance 96-13 violates the First Amendment because it is not narrowly tailored to achieve its stated purpose of curbing the spread of sexually-transmitted diseases. See id. at 11-17. Third, Plaintiffs state that the Ordinance must be declared unconstitutional because the County failed to make any legislative findings that would support its broadly-sweeping action. See id. at 17-20. Finally, Plaintiffs argue that, by imposing penalties — up to and including the potential closure of establishments found to have violated its terms — under a strict liability scheme, Ordinance 96-13 violates due process and unconstitutionally chills speech protected by the First Amendment. See id. at 20-25.
Defendant County does not dispute Plaintiffs' characterization that no genuine issue of material exists such that summary judgment is proper. However, in its Cross-Motion For Summary Judgment, Defendant County maintains that it is entitled to judgment as a matter of law because Ordinance 96-13 passes constitutional muster. First, Defendant County construes Ordinance 96-13 as a content-neutral time, place, and manner regulation that is constitutional under the Supreme Court's First Amendment jurisprudence, given that it serves a substantial government interest, is narrowly tailored to serve that interest, and leaves open ample alternative avenues of communication. See Def.'s Cross-Mot., at 4-8, 14-15. Second, Defendant County reasons that, read as a whole and with common understanding, Ordinance 96-13 applies only to establishments that have the adverse secondary effects sought to be controlled; in other words, Defendant County disputes Plaintiffs' contention that the Ordinance is unconstitutionally overbroad. See id. at 8-14. Third, Defendant County suggests that, prior to enacting Ordinance 96-13, the Board made the requisite legislative findings Plaintiffs suggest are lacking. See id. at 18. Fourth, Defendant County cites various cases in support of its position that the strict liability provisions of Ordinance 96-13 neither violate due process nor create an unconstitutional chilling effect. See id. at 18-20. Finally, Defendant County expounds upon the right to privacy claim, which Plaintiffs fail to address in their Motion For Summary Judgment. After reviewing state law on the right to privacy, Defendant County asserts that Plaintiffs cannot establish a violation of Article 4, section 23 of the Florida Constitution for the public sexual activity proscribed by Ordinance 96-13. See id. at 16-17.
Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56© (West 1998); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
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