University Books & Videos, Inc. v. Metropol. Dade County

• Decision Date: 19 January 1999
• Docket Number: No. 96-0952-Civ.,No. 96-0962-Civ.,No. 96-0995-Civ.,No. 96-1143-Civ.,No. 96-1338-Civ.,No. 96-0996-Civ.,No. 96-1141-Civ.,No. 96-1337-Civ.,No. 96-1339-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: 33 F.Supp.2d 1364
• 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

Page 1364

33 F.Supp.2d 1364

UNIVERSITY BOOKS AND VIDEOS, INC., d/b/a University Books, et al. Plaintiffs, v. METROPOLITAN DADE COUNTY, Defendant.

No. 96-0952-Civ.

No. 96-0962-Civ.

No. 96-0995-Civ.

No. 96-0996-Civ.

No. 96-1141-Civ.

No. 96-1143-Civ.

No. 96-1337-Civ.

No. 96-1338-Civ.

No. 96-1339-Civ.

United States District Court, S.D. Florida.

January 19, 1999.

COPYRIGHT MATERIAL OMITTED

Clyde DeWitt, Los Angeles, CA, Luke Charles Lirot, Tampa, FL, Daniel Aaronson, Ft. Lauderdale, FL, Joseph Lopez, Coral Gables, FL, Barry Halpern, Coral Gables, FL, Stephen Cody, Miami, FL, for plaintiffs.

John McInnis, David Hope, Assistant County Attorney, Dade County Attorney, Miami, FL, for defendant.

ORDER GRANTING PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION

KING, District Judge.

THIS CAUSE comes before the Court on the Motion For Preliminary Injunction and Memorandum Of Law filed by Plaintiffs University Books & Videos, Inc., 14907 SN Corporation, and Bird Street Corporation on November 10, 1998 ("Plaintiffs' Motion/Memorandum A"). Plaintiffs Perrine Books and Videos, Inc., Sun Beach Videos, Inc., Kendall Book and Video, Inc., and John Doe filed a separate Motion For Preliminary Injunction and Memorandum Of Law on November 13, 1998 ("Plaintiffs' Motion/Memorandum B").¹ On December 11, 1998, with the Court's permission, Defendant Metropolitan Dade County submitted a single memorandum in response to Plaintiffs' Motions. The first group of Plaintiffs replied to Defendant's memorandum on December 16, 1998; the second group of Plaintiffs replied on December 18, 1998.²

I. Factual and Procedural Background

On January 16, 1996, the Board of County Commissioners ("Commissioners") of Metropolitan Dade County ("County") enacted two ordinances relating to adult entertainment establishments. Ordinance 96-13 (the "Regulatory Ordinance"), which was to become effective on March 16, 1996, imposes criminal and civil sanctions for sexual activity at adult bookstores and adult video stores, in order to curb the spread of the human immunodeficiency virus ("HIV"), acquired immune deficiency syndrome ("AIDS"), and other sexually transmitted diseases. See Metropolitan Dade County Ordinance No. 96-13 (Jan. 16, 1996). Before this case was removed to federal court, a state court temporarily enjoined the County from enforcing the Regulatory 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 & Videos, Inc. v. Miami-Dade County, No. 97-4101, 1998 WL 819870 (11th Cir. Nov. 17, 1998). Because it is already subject to a preliminary injunction preventing its enforcement, the Regulatory Ordinance is not at issue in Plaintiffs' Motions For Preliminary Injunction.

Ordinance 96-12 (the "Zoning Ordinance"), passed concurrently with the Regulatory Ordinance and codified at Miami-Dade County Code ("Code") § 33-255.1, became effective on January 26, 1996. In order to reduce the adverse secondary effects believed to be caused by certain specified adult entertainment establishments³ in residential areas and public facilities frequented by children,⁴ the Zoning Ordinance limits the unincorporated areas in the County where such businesses legally may operate. See Code § 33-255.1(a), (b). Under the Zoning Ordinance, new adult entertainment establishments are permitted only in the BU-3 zone,⁵ see Code § 33.255.1(c), and must comply with the following distance and spacing restrictions:

Unless approved as a special exception, none of the uses set forth in subsection 33-255.1(c) shall be permitted (i) within one thousand (1,000) feet of a private school as defined in Section 33-151.11, public school, church, public park, public library, day care center or nursery for children; (ii) within one thousand (1,000) feet of any of the uses described in subsection 33-255.1(c); and (iii) within six hundred sixty (660) feet of any RU or EU zoning district. ...

Code § 33-255.1(d) (emphasis added); see also Code § 33-255.1(e) (explicating how distance and spacing requirements will be measured). Unless it received a special exception, any existing adult entertainment establishment that did not satisfy the distance and spacing requirements became a nonconforming use as of January 26, 1996. See Code § 33-255.1(h)(1). As such, it had three years either to discontinue operations, or to seek approval from the Zoning Appeals Board ("Board") to transfer to a site in a BU-3 or IU zoning district that satisfies the distance and spacing requirements. See id. Alternatively, the nonconforming adult entertainment establishment could apply for a variance from the Department of Planning, Development, and Regulation ("Department"). See Code § 33-255.1(h)(3).

Plaintiffs operate adult bookstores and adult video stores in unincorporated areas of the County. See Compl., at ¶ 26; see also Decls. of Robert Beck, Maria D. Hernandez, Robert Keeler, and Barbara S. Zcazwinski. If they are not granted a special exception or variance, the Zoning Ordinance allegedly will require Plaintiffs to seek approval to move their businesses to a very limited number of parcels in BU-3 zones that are over 660 feet from the nearest residential neighborhood and over 1000 feet from the nearest school, church, public facility, and other adult entertainment establishment. See id. at ¶ 36. In order to prevent this, Plaintiffs have sued the County,⁶ seeking a declaration that the Zoning Ordinance is unconstitutional, and a permanent injunction prohibiting the County from enforcing it. See id. at ¶ 24A. In their Motions, Plaintiffs are seeking preliminary to enjoin the County from enforcing the Zoning Ordinance on or after its effective date of January 26, 1999 through the time when a final judgment has been reached in this case. See Pls.' Mot. A, at 5; Pls.' Mot. B, at ¶ 21.

II. Legal Standard

To prevail on a motion for preliminary injunction, the plaintiff must establish that: (1) there is a substantial likelihood of success on the merits of its claim(s); (2) it will suffer irreparable harm in the absence of injunctive relief; (3) the threatened injury to the plaintiff outweighs any potential harm to the defendant as a result of the injunction; and (4) granting the injunction would not be adverse to the public interest. See Warren Publ'g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1516-17 (11th Cir.1997). The plaintiff bears the burden clearly to establish each of the four elements. See Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993); see also Anheuser-Busch, Inc. v. A-B Distribs., Inc., 910 F.Supp. 587, 589 (M.D.Fla.1995). Whether or not to issue a preliminary injunction is a decision firmly within the discretion of the trial court. See Virginian Ry. Co. v. System Fed'n, R.E.D., 300 U.S. 515, 551, 57 S.Ct. 592, 81 L.Ed. 789 (1937).

III. Analysis

Plaintiffs allege claims under the First and Fourteenth Amendments of the United States Constitution and Article I, Section 4 of the Florida Constitution. See Fourth Am. Compl., at ¶¶ 41-72. The preliminary injunction will issue if Plaintiffs can satisfy their burden with respect to any one of these claims. In light of the arguments presented to this Court in the Parties' Memoranda, the Court will apply the four-part test for the issuance of a preliminary injunction only to Plaintiffs' First Amendment claim.

A. Plaintiffs' Likelihood of Success on the Merits

The First Amendment protects non-obscene, sexually explicit speech. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Courts subject content-based restrictions on protected speech — those that "suppress, disadvantage, or impose differential burdens upon speech because of its content" — to "the most exacting scrutiny." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In contrast, content-neutral regulations of protected speech, which are less likely to expunge a given category of speech from public dialogue, are subject to intermediate scrutiny. See Clark v Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). To determine whether a given regulation that potentially limits speech is content-based or content-neutral, courts look primarily to the respective government's purpose in enacting the regulation. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

Although they differentiate between uses that are sexually explicit in nature from those that are not, zoning regulations that limit the areas in which adult entertainment establishments may locate are reviewed as content-neutral regulations. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Young v. American Mini Theatres, Inc., 427 U.S. 50, 62-63, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Because they are intended primarily to curb the adverse secondary effects such establishments are believed to have on the surrounding communities, such zoning ordinances have been held to be valid exercises of the municipality's police power, notwithstanding the incidental burden they may have on protected speech. See id.

The Zoning Ordinance does not prohibit adult entertainment establishments from operating, rather it restricts the sites at which they may operate. See Code § 33-255.1(c), (d), (e). The Commissioners passed the Zoning Ordinance on the basis of their belief that adult entertainment establishments have "a deleterious effect upon the adjacent business and residential areas." Code § 33-255.1(a). Given the...