Wacko's Too, Inc. v. City of Jacksonville

• Decision Date: 01 March 2021
• Docket Number: Case No. 3:20-cv-303-TJC-MCR
• Parties: WACKO'S TOO, INC., etc., et al., Plaintiffs, v. CITY OF JACKSONVILLE, etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

522 F.Supp.3d 1132

WACKO'S TOO, INC., etc., et al., Plaintiffs,

v.CITY OF JACKSONVILLE, etc., et al., Defendants.

Case No. 3:20-cv-303-TJC-MCR

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

Signed March 1, 2021

James S. Benjamin, Benjamin, Aaronson, Edinger & Patanzo, PA, Ft. Lauderdale, FL, Gary S. Edinger, Benjamin, Aaronson, Edinger & Patanzo, P.A., Gainesville, FL, for Plaintiffs.

Craig D. Feiser, Jason R. Teal, Mary Margaret Giannini, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendants City of Jacksonville, Mike Williams.

Gabriella Young, Office of General Counsel, Jacksonville, FL, for Defendant N. O. Archbold.

ORDER

TIMOTHY J. CORRIGAN, United States District Judge

This case is about whether the City of Jacksonville may impose certain restrictions on adult entertainment businesses and their performers without running afoul of the Constitution. A group of thirteen adult entertainment establishments and four performers filed this lawsuit¹ against the City of Jacksonville and Sheriff Mike Williams in his official capacity as Sheriff of Duval County.² (Doc. 1). The Complaint alleges violations of the First, Fourth, and Fourteenth Amendments stemming mostly from Ordinance 2020-74-E, enacted by the Jacksonville City Council in February 2020 to amend Chapters 150 and 151 of the Jacksonville Code. Immediately after filing the Complaint, Plaintiffs filed a Motion for Preliminary Injunction as to certain counts. (Doc. 2). The Court elected to consolidate the preliminary injunction hearing with a non-jury trial on the merits. See Fed. R. Civ. P. 65(a)(2). The City agreed to abate enforcement of the Ordinance until the Court rules on the issues. (Doc. 21 at 3).

The parties agreed to a list of eleven selected counts to be tried on an expedited basis, all of which the parties view as purely legal issues involving facial constitutional challenges or preemption. (Doc. 21).³ Plaintiffs then submitted a Trial Brief on Agreed Legal Issues (Doc. 23). The City filed a response in opposition (Doc. 25), Plaintiffs filed a reply (Doc. 28), and the City filed a sur-reply (Doc. 29). The City also filed over six hundred pages of documents in support of its response. (Docs. 30, 30-1, 30-2, 30-3, 30-4, 30-5, 30-6, 30-7, 30-8). On the eve of the bench trial, the City filed two additional affidavits. (Docs. 33, 33-1, 34, 34-1). Plaintiffs recently filed a Notice of Supplemental Authority in Support of Count I of their Complaint (Prior Restraint). (Docs. 38, 38-1). The Court conducted a non-jury trial on the selected counts on September 18, 2020, the record of which is incorporated by reference. (Doc. 36). The remaining issues are preserved for trial at a later date. (Doc. 21 at 2).

I. BACKGROUND

The City passed Ordinance 2020-74-E on February 25, 2020, effective March 5, 2020. (Doc. 1 ¶ 44). The Ordinance amended Chapters 150 and 151 of the Jacksonville Code by instituting new licensing requirements for performers at adult entertainment establishments in Jacksonville, in addition to other changes. (See Doc. 1-1). Plaintiffs fall into three categories: (1) "Dancing entertainment establishments," called "bikini bars," regulated primarily by Chapter 151 that "provide live exotic dance performances in a nightclub format where alcoholic beverages are sold," and where performers wear coverings over their breasts, buttocks, and pubic regions; (2) Sinsations, an "adult entertainment establishment" regulated primarily under Chapter 150, that operates a "juice bar" with no alcoholic beverages and has nude dancing in a nightclub setting; and (3) individual performers and independent contractors Natalie Sanchez, Neva Clinkscale, Chelsea Gallagher, and Rebecca Anderson, who have worked at one or more of the establishments.⁴ Sanchez and Clinkscale are over eighteen but under twenty-one. (Doc. 23 at 5). Sanchez has worked at Sinsations. Id. at 5. The other performers have worked exclusively at bikini bars. Id. Under the Ordinance, all four are required to obtain a Work Identification Card to continue dancing at the establishments, but the Ordinance also prohibits anyone under age twenty-one from obtaining a card.

The City contends that the licensing requirements and restrictions are designed to combat human trafficking. At trial, the City highlighted these excerpts from a six-hundred-page record:

• "The warning signs of human sex trafficking include the presence of strip clubs and ‘streetwalkers.’ The FBI has also reported that certain locations such as truck stops, massage parlors, and strip clubs are often havens for sex trafficking. An FBI task force in Portland, Oregon, a hot spot for human sex trafficking, found a huge overlap between strip clubs and the sex trade. One member of the task force stated, ‘It's no secret that pimps and traffickers will go to strip clubs to try to find girls to traffic and promote or compel into prostitution.’ In another investigation of four strip clubs that was led by agents of the FBI, IRS, and local police, graphic court filings detailed how in the dimly lit ‘VIP’ rooms, dancers and patrons engaged in open sex acts for money." (Doc. 30-7 at 45) (excerpted from Dan O'Bryant, Inextricably Bound: Strip Clubs, Prostitution, and Sex Trafficking, 2 DIGNITY : J. SEXUAL EXPLOITATION & VIOLENCE 3, 3 (2017)).

• "Victims of sex trafficking are frequently recruited to work in strip clubs across the United States. Women, men, and minors may be recruited to work in strip clubs as hostesses, servers or dancers, but then are required to provide commercial sex to customers. Individuals forced to serve as hostess, servers, or dancers but not required to provide commercial sex may still be victims of labor trafficking. Strip clubs are designed to provide the space and environment in which buyers may purchase commercial sex. Victims of sex trafficking in strip clubs must adhere to extensive, pre-determined schedules and are frequently moved between multiple clubs. Commercial sex sometimes takes place in the bathroom, VIP, or lap dance rooms, or offsite in hotels or buyer's [sic] homes." (Doc. 30-7 at 52) (excerpted from NATIONAL HUMAN TRAFFICKING HOTLINE , Hostess/Strip Club-Based ).

• "Victims of sex trafficking may be women, men, or minors, though it is more common for females to be induced into commercial sex in this venue. They may be U.S. citizens, or foreign nationals with valid visas, expired/fraudulent visas or without documentation." (Doc. 30-7 at 53) (excerpted from NATIONAL HUMAN TRAFFICKING HOTLINE , Hostess/Strip Club-Based ).

• "A Scores strip club in Florida hired a ‘severely’ disabled 17-year-old sex trafficking victim with a fake ID and allowed her to be groped and molested by adult men, a scathing lawsuit filed Wednesday alleges." (Doc. 30-8 at 55) (Gabrielle Fonrouge, Scores strip club sued for allowing sex trafficking of disabled teen, N.Y. POST , Jan. 29, 2020)."⁵

• "123 of the 292 survivors whose accounts were analyzed disclosed their age when they first engaged in commercial sex to the NHTRC or BeFree Textline. 44% of those survivors estimated that they were 17 or younger, and the average age of first participation was 19 years old." (Doc. 30-3 at 77) (emphasis in original) (excerpted from POLARIS, Sex Trafficking in the U.S.: A Closer Look at U.S. Citizen Victims). The report also includes a graphic that shows an estimated thirty-eight percent of survivors are fourteen to seventeen years old at the time of their first commercial sex act, while an estimated thirty-percent are eighteen to twenty-one." Id. at 78.

In addition, the Ordinance itself contains several "whereas" clauses:

WHEREAS, Florida is ranked third nationally for reported cases of human trafficking abuses, many of which involved sex trafficking; and

WHEREAS, strip clubs and hotels/motels are widely recognized as being a significant part of the sex trafficking network used by traffickers to coerce and facilitate men, women and children into performing sexual acts, which places the employees of these establishments in direct and frequent contact with the victims of human trafficking; and

WHEREAS, in 2019, the American Hotel & Lodging Association ("AHLA") launched its, "No Room for Trafficking" campaign, which established the goal of training every hotel employee to spot and stop trafficking; and

WHEREAS, on January 9, 2020, the AHLA, the Florida Restaurant & Lodging Association, the Asian American Hotel Owners Association, the National Football League, Florida Attorney General Ashley Moody and various state and federal officials met to develop a prevention and response campaign concerning use of Florida's hotel industry for sex trafficking during and around Super Bowl LIV in Miami; and

WHEREAS, hotels and motels are a crucial piece of the infrastructure necessary to facilitate human trafficking (particularly sex trafficking) in escort services – of the 3,596 cases of human trafficking reported to the National Hotline to be occurring at a hotel, 2,920 or 81 percent of those involved sex trafficking; and

WHEREAS, victims of sex trafficking are frequently recruited to work as performers or employees in strip clubs; and

WHEREAS, researchers have found that sex trafficking victims are more likely to be trafficked by someone from within her or his own community; and

WHEREAS, persons under the age of twenty-one are more likely to still remain within and dependent on the community in which they were raised; and

WHEREAS, research studies have identified the average age at which a person in the United States enters the sex trade for the first time is age seventeen (17); and

WHEREAS, because of the prevalence of human and sex trafficking among Florida's youth population, on September 30, 2019, Florida's State Board of Education voted unanimously to make Florida the first state in the country to require child trafficking prevention education for all public education students in grades K–12; and

WHEREAS, on January 14, 2020, the

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