Vincent v. Broward Cty. Florida
| Decision Date | 18 January 2000 |
| Docket Number | Nos. 98-4211,98-4308,s. 98-4211 |
| Parties | (11th Cir. 2000) DAVID VINCENT, INC., d.b.a. Omni Adult Bookstore, JOHN DOE, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. BROWARD COUNTY, FLORIDA, Defendant-Appellee. DAVID VINCENT, INC., d.b.a. Omni Adult Bookstore, JOHN DOE, on behalf of himself and all others similarly situated, DMH, INC., a Florida corporation, d.b.a. Broward Adult Bookstore Plaintiffs-Appellants-Cross-Appellees v. BROWARD COUNTY, FLORIDA, Defendant-Appellee-Cross-Appellant |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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v.
BROWARD COUNTY, FLORIDA, Defendant-Appellee.
d.b.a. Broward Adult Bookstore Plaintiffs-Appellants-Cross-Appellees
v.
BROWARD COUNTY, FLORIDA, Defendant-Appellee-Cross-Appellant.
FOR THE ELEVENTH CIRCUIT
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Appeals from the United States District Court for the Southern District of Florida, D. C. Docket No. 97-7164-CIV-FAM
Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*, Senior District Judge.
KRAVITCH, Senior Circuit Judge:
Plaintiffs-appellants are adult bookstores in unincorporated Broward County, Florida, challenging the constitutionality of Broward County's licensing and zoning ordinances for adult businesses.1 The district court concluded that plaintiffs' previous
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bid for a preliminary injunction of the licensing ordinance in state court barred them from seeking both preliminary and permanent injunctions in federal court. After a bench trial, the district court ruled that Broward County's zoning ordinance for adult businesses was constitutional both facially and as applied to plaintiffs.
The adult bookstores raise three issues on appeal. First, they argue that neither preclusion nor the Rooker-Feldman doctrine bar their challenge to Broward County's licensing ordinance. Second, they question the district court's ruling that Broward County's zoning ordinance is facially constitutional. Finally, appellants argue that, as applied, the zoning ordinance violates the First Amendment because it denies adequate opportunities for adult expression.
We agree with appellants that their prior efforts to obtain a temporary injunction of Broward County's licensing ordinance does not bar a subsequent claim for a permanent injunction. This circuit's precedent does, however, support the district court's ruling that the zoning ordinance is facially constitutional. Furthermore, we cannot say that the district court's findings as to the number of sites available for adult businesses under the zoning ordinance are clearly erroneous, and we agree that those sites provide an adequate opportunity for the appellants' protected expression. We reverse the order precluding appellants' challenge to Broward County's licensing ordinance and remand for further proceedings. We affirm the district court ruling that Broward County's zoning ordinance is constitutional both facially and as applied.
I. BACKGROUND
In 1993, Broward County adopted both a licensing and a zoning ordinance for adult businesses. See Broward County, Fla., Ordinance 93-18 (July 13, 1993) (licensing); Broward County, Fla., Ordinance 93-3 (January 26, 1993) (zoning). The licensing ordinance (93-18) establishes detailed requirements for the physical structures of adult businesses, restricts the activities that can take place on the premises, and provides a licensing regime with application procedures and inspections. The zoning ordinance (93-3) merely modified Broward's existing zoning regime for adult businesses, which this court found constitutional in International Eateries of Am. v. Broward County, 941 F.2d 1157, 1165 (11th Cir. 1991). Both the former and the new zoning ordinances require adult businesses to locate more than 500 feet from residentially zoned districts, and 1,000 feet from each other and from churches, schools, and child care facilities. The new ordinance eliminates a "waiver" provision that had allowed adult businesses to locate at a non-conforming site if the surrounding community approved. The former zoning ordinance also allowed existing businesses to remain on non-conforming sites, while the new 93-3 requires adult businesses to move to a conforming location within a five-year amortization period.
Broward County's adult bookstores (the plaintiffs-appellants in this case) and adult dance establishments challenged the constitutionality of the licensing ordinance in state court in separate lawsuits, seeking both a preliminary injunction and permanent relief. Broward County removed the bookstores' case to federal court, but the plaintiffs successfully sought a remand. After a hearing, the Florida trial court denied the request for temporary injunctive relief. See Bordo, Inc. et al. v. Board of County Comm'rs of Broward County, No. 93-21553-08 (Fla. 17th Cir. Ct. Sep. 28, 1993) (Order on Plaintiffs' Motion for Temporary Injunction). The Florida Court of Appeals affirmed the denial of a preliminary injunction in the case brought by the adult dance venues. See 3229 North Federal Highway, Inc. v. Board of County Comm'rs, 646 S.2d 415 (Fla. 4th Dist. Ct. App. 1994). It then affirmed the denial of the bookstores' preliminary injunction on that authority. See Bordo, Inc. v. Board of County Comm'rs, 647 So. 2d 215 (Fla. 4th Dist. Ct. App. 1994). The Court of Appeals did certify a question to the Florida Supreme Court, but after a two-year delay the state Supreme
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Court declined to consider the matter.2 See Bordo, Inc. v. Board of County Comm'rs Broward County, 699 So. 2d 689 (Fla. Sep. 28, 1997) (unpublished decision denying petition for review).
The bookstores then dismissed their state court claim for a permanent injunction of the licensing ordinance and filed this case in federal court seeking preliminary and permanent injunctions of the licensing ordinance and also challenging the new zoning ordinance.3 The district court granted the County's motions to dismiss and for summary judgment on the licensing ordinance claims,4 concluding that the entire challenge to 93-18 was precluded by the prior state court litigation. The district court also decided that International Eateries controlled the facial challenge to the zoning ordinance, 93-3. Because the prior zoning ordinance had been upheld, the new (and very similar) ordinance must be constitutional as well.
The court held a bench trial for the as-applied challenge to the zoning ordinance, and ruled in favor of Broward County. The focus of the trial was whether Broward County's zoning regime left a sufficient number of sites for adult businesses to satisfy the First Amendment's requirement that time, place, and manner restrictions leave adequate avenues for protected expression. Each side presented an expert witness. Bruce McLaughlin, testifying on behalf of the adult bookstores, opined that only one site was truly available for an adult business under Broward's zoning regime. Leigh Kerr, testifying for Broward County, claimed that nine sites were available for adult businesses.
Establishing an adult business at many of the sites would be complicated, requiring the purchase of multiple plots of land, redivision of parcels, construction and landscaping, and so on. Even with that work, small lots would constrain the size of some adult businesses. Plaintiffs argued that because of permit and spot rezoning requirements, the government would have too many opportunities to stymie an adult business trying to locate at a particular site. The bookstores also claimed that a number of the sites posed unreasonable obstacles. For example, a covenant against immoral uses burdened one site, a state agency occupies part of another, and hazardous waste from a car repair facility may contaminate a third site. McLaughlin's testimony did not sway the district court, which found that seven to nine sites were available for adult businesses in unincorporated Broward County. The district court also concluded that the number of sites available for adult businesses provided an adequate opportunity for adult expression.
Evaluating whether the county provides a constitutionally sufficient number of sites for adult businesses is complicated by the fact that the unincorporated area of Broward County is shrinking. The county encourages municipalities to annex unincorporated land, and hopes to one day control no territory at all. The size of the unincorporated territory is significantly smaller than when this court considered International Eateries, and smaller than in 1993, when the county adopted the challenged ordinances. The population also has been dropping, but at a slower rate than the land loss.
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II. DISCUSSION
We discuss three issues in turn. First, does claim preclusion, issue preclusion, or the Rooker-Feldman doctrine bar appellants' challenge to Broward County's licensing ordinance? Second, does this circuit's International Eateries decision support the district court's ruling that Broward County's zoning ordinance is facially constitutional? Finally, does Broward County's zoning ordinance, as applied, provide the appellants with adequate opportunities for protected adult expression, as required by the First Amendment?5
A. The Licensing Ordinance
The district court granted summary judgment on the licensing claim on preclusion grounds. The court noted that plaintiffs' claim for a permanent injunction was virtually identical to the claim they had voluntarily dismissed from their state court action after losing the bid for a temporary injunction.6 The court also observed that it was plaintiffs who originally filed their case in state court and fought removal to federal court. The district court suspected that plaintiffs had "test[ed] the waters" in state court, and were now searching for a more sympathetic forum. Vincent v. Broward County, No. 97-7164 at 8 (S.D. Fla. 1998) (Order Granting In Part Defendant's Motion for Summary Judgment and Motion to Dismiss).
The district court's order makes reference to claim preclusion, issue preclusion, and notions of federalism embodied in the Rooker-Feldman...
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