University Books and Videos v. Miami-Dade County
| Decision Date | 25 January 2001 |
| Docket Number | No. 00-3567-CIV.,No. 00-3568-CIV.,No. 00-3562-CIV.,No. 00-3722-CIV.,No. 00-3566-CIV.,No. 00-3012-CIV.,No. 00-1229-CIV.,No. 00-3563-CIV.,No. 00-3882-CIV.,00-3012-CIV.,00-1229-CIV.,00-3562-CIV.,00-3563-CIV.,00-3566-CIV.,00-3567-CIV.,00-3568-CIV.,00-3722-CIV.,00-3882-CIV. |
| Citation | 132 F.Supp.2d 1008 |
| Parties | UNIVERSITY BOOKS AND VIDEOS, INC., and related cases, Plaintiffs, v. MIAMI-DADE COUNTY, FLORIDA, a Body Politic, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Roger J. Schindler, Simon Schindler & Sandberg, Miami, FL, for Perrine Books, Inc., Sun Beach Video, Inc., Kendall Book & Video, Inc., Angel T. Enterprises, Inc., 167th Street Corp., Gold Coast Book & Video, Inc., James T. Robinson, Prime Time Book and Video, Inc., 114 Biscayne, Inc., KW Liquors, Lil Abner's Corp., 3797 Liquors, Inc.
Barry Leonard Halpern, Barry L. Halpern, Law Office, Coral Gables, FL, for Always Hot, Adult Media Corp. Miami Factor, Inc., 7351 XZ, Inc.
Teddy Lee Montoto, Sutton & Montoto, Miami, FL, for M.P.B., Inc., Gastorkicks, Inc., Clearwater Factor, Inc.
Luke Lirot, Tampa, FL, for Miami Factor, Inc. and Clearwater Factor, Inc.
John Darrell McInnis, David Stephen Hope, Dade County Attorney's Office, Miami, FL, for Miami-Dade County.
The Defendant, Miami-Dade County (the "County"), like many other municipalities across the Country, has stated its interest in stemming the unwanted secondary effects of adult night clubs and adult book and video stores. To effectuate this interest, the County enacted various ordinances — including Miami-Dade County Code ("MDCC" or the "Code") § 33-255.1, a zoning ordinance which restricts the locations where adult night clubs and adult book and video stores may operate (the "Zoning Ordinance").
The County's real and compelling interest in limiting the secondary effects associated with adult businesses is now in conflict with another equally compelling and constitutionally protected interest, the First Amendment interest in free speech. These competing interests are now before this Court in the form of a facial challenge to the Zoning Ordinance. The Court does not, however, have to decide whether each interest is important or deserving of protection. The answer to this question has been decided in the affirmative by many other courts.1 By agreement of the parties, the only issue before this Court is whether the County's interest in limiting the secondary effect of adult businesses, as effectuated by the Zoning Ordinance, leaves open reasonably adequate alternatives to communication such that the interest of free speech is protected.
The Court finds that the Zoning Ordinance does not leave open reasonably adequate alternatives to communication. The available sites in the BU-3 zone — the only area available for adult businesses to locate as of right — are inadequate to allow for free expression. The sites which are located in the Industrial (IU) zone are also inadequate because they are not available as a matter of right, but only with a public hearing. Therefore, the Zoning Ordinance is unconstitutional.
On October 1, 1991, the County enacted Ordinance 91-112, which added § 33-255.1 to the Code. Ordinance 91-112 was entitled: "Zoning Regulation of Adult Theaters, Adult Night Clubs, Adult Video Stores and Massage Establishments." This ordinance was the first County ordinance to impose special zoning restrictions on bookstores, video stores and entertainment facilities which offered "adult" materials and entertainment. It provided that adult bookstores and video stores,2 adult theaters, adult night clubs3 and massage establishments (collectively "adult businesses") could locate only in a BU-3 zone,4 and further required them to be at least 1,000 feet from any private or public school, church, and any other adult uses, and at least 500 feet from any residentially zoned district. Each of the twenty four (24) Plaintiffs operate adult businesses in unincorporated Miami-Dade County, except Plaintiff Always Hot which is presently seeking to open such an establishment.
Each of Plaintiffs' businesses failed to meet the requirements of Ordinance 91-112 because they were not located in a BU-3 zone and were not at least 1,000 feet from any private or public school, church and any other adult uses, and at least 500 feet from any residentially zoned district. However, the County allowed Plaintiffs to continue operating their adult businesses as lawful nonconforming uses.
On January 16, 1996, the County enacted Ordinance 96-12 which amended § 33-255.1. Pursuant to Ordinance 96-12, none of Plaintiffs' adult businesses could have remained at their present locations after January 26, 1999, unless they were granted either a variance from the Department of Planning and Zoning, or a variance or a special exception from the Miami-Dade County Community Zoning Appeals Board. ("CZAB") If they failed to obtain a variance or special exception, Plaintiffs' adult businesses were required to move to either:
I. A location in a BU-3 zone more than 660 feet from the nearest RU and EU zoning districts and more than 1,000 feet from the nearest private school, public school, church, public park, public library, day care center, nursery for children, as well as being more than 1,000 feet away from any other adult bookstore, adult theater, adult night club, adult video store, massage establishment, adult modeling establishment or encounter studio, as those terms are defined in Ordinance 96-12; or
II. With the approval of the CZAB, to an IU5 (industrial) zone location, subject to the same distance requirements as above.
In 1996, most of the Plaintiffs involved in the present lawsuit filed an action against the County in federal court, raising a facial challenge to Ordinance 96-12: University Books and Videos, Inc. v. Metropolitan Dade County, 33 F.Supp.2d 1364 (S.D.Fla.1999) ("University Books I"). On January 19, 1999, the District Court issued a preliminary injunction in University Books I, prohibiting the County from enforcing Ordinance 96-12 against Plaintiffs pending final trial of that case. University Books and Videos, Inc. v. Metropolitan Dade County, 33 F.Supp.2d 1364 (S.D.Fla.1999).
On April 13, 1999, before a trial was scheduled in University Books I, the County enacted Ordinance No. 99-32, further modifying County Code Section 33-255.1. It is this version of § 33-255.1 which is currently in effect. A true and correct copy of Section 33-255.1 is attached hereto as Appendix A.
Ordinance 99-32 extended the amortization deadline and allowed Plaintiffs to continue their adult businesses in their present locations until January 26, 2001. Before January 26, 2001, existing adult businesses could relocate, as of right, to a BU-3 area or an IU area. After January 26, 2001, adult businesses may be located in a BU-3 area as of right or an IU area after public hearing. At the time of trial, 39 adult businesses operate in the unincorporated County, between 33 and 36 of which will be required to close as of January 26, 2001 by the challenged zoning scheme, depending upon the outcomes of pending public hearings.
Unincorporated Miami-Dade County spans 800.6 square miles and is home to 1,114,000 people. The developed area of unincorporated Miami-Dade County is over 432,000 acres. Within these confines, the County has designated and/or zoned different parcels of land for different uses, such as residential (RU), business (BU) and industrial (IU). The total number of unincorporated Miami-Dade County parcels which are subject to the Miami-Dade County zoning regulations and designated for business or industrial use is 12,389. These business and industrial parcels comprise 31,874.12 acres. The total number of unincorporated Miami-Dade County parcels which are subject to the Miami-Dade County zoning regulations and designated for business use is 5,839, and comprise 15,825.46 acres.
Pursuant to discovery requests, the County provided Plaintiffs with a chart identifying 41 BU-3 parcels in unincorporated Miami-Dade County that the County contends are legal for adult businesses to operate. These 41 parcels were identified using the spacing restrictions in the Zoning Ordinance, however, the County acknowledges that the chart does not take into account the restriction that two adult businesses cannot be located within 1000 feet of each other
Plaintiffs were able, through the testimony of their expert Steve Miller, to demonstrate that some of the 41 parcels are not actually available because they do not conform to the spacing restrictions set forth in the Zoning Ordinance. Seven of the parcels were "disqualified" because they were either too close to a park or a school, were actually in a BU-2 zone or were owned by Miami-Dade County Government. The disqualification of these seven parcel leaves 34 parcels in BU-3 zoning areas available for adult uses, comprising 39.83 acres, discounting the separation requirements.
The Plaintiffs were then able to show that the 34 remaining sites are limited by the prospective location of adult businesses which would disqualify other adult businesses by virtue of the ordinance's distance requirements. Therefore, the theoretical maximum number of adult businesses that could simultaneously exist in the BU-3 zoning districts is between 10 and 12, depending upon where adult businesses located in different areas.
After January 26, 2001, an adult business may locate in an industrial zone only after public hearing. Rather than being a permitted use in an industrial area, this public hearing requirement makes adult businesses a "special use."6
For an adult business to locate in an industrial area, the adult business must...
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