522 F.Supp.3d 1132
M.D. Fla.2021Background
- Plaintiffs (13 adult-entertainment businesses and 4 performers) challenged Jacksonville Ordinance 2020-74-E, which added performer Work Identification Card licensing, age restrictions, application requirements, inspection rules, fee increases, and amended license suspension procedures.
- Ordinance enacted to combat human trafficking; Council relied on studies, workshops, and "whereas" findings linking strip clubs to trafficking and noting average ages of entry into commercial sex.
- Plaintiffs sued under the First, Fourth, and Fourteenth Amendments and sought a preliminary injunction; the Court consolidated the injunction hearing with a non-jury trial on agreed legal issues and the City abated enforcement pending the ruling.
- Core contested provisions: performer licensing scheme (procedures, time limits, discretion), applicant requirements (fingerprints, photo, training, work-eligibility), performer age floor (21+), fees, record inspections, simulated-sex prohibitions, and business license suspension/revocation procedures.
- The Court decided several counts on the merits, permanently enjoining portions of the Ordinance, deferring others for further development, and severing invalid provisions from the remainder of the Code.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Licensing scheme as prior restraint (Count I) | Scheme vests unbridled discretion in Sheriff, lacks time limits and prompt review, creating an impermissible prior restraint | Licensing intended to fight trafficking; cards are administrative, not content regulation | Licensing provisions (§§150.224,151.214) are facially unconstitutional and permanently enjoined (discretion + delay defects) |
| Application requirements (fingerprints, photo, training, work-eligibility) (Count II) | Fingerprinting and proof of work-eligibility burden speech and are not narrowly tailored; training/course cost/burden unknown | Requirements necessary to identify performers, verify age/work status, and educate to prevent trafficking | Photo requirement and club rosters may stand; fingerprints and proof of work-eligibility invalid; training requirement deferred for further fact development |
| License suspension/revocation procedure (Count III) | City created judicial procedures that intrude on Florida courts' rulemaking/separation of powers | Procedure ensures prompt determination and protects public safety | §§150.212(b) and 151.208(e) invalid under Fla. Const. Art. V §2(a); permanently enjoined |
| Performer age restriction (21+) (Counts IV & VI) | Ban on under-21 performers not narrowly tailored or is underinclusive; affects expressive conduct of 18–20 year olds | Age floor protects against trafficking and alcohol-related harms; points to Doe I support | Court deferred ruling; invited briefing and further evidence before reconvened trial |
| Licensing and club fees (Count V) | Fees are an unconstitutional tax on speech if not revenue-neutral or not reasonably related to administrative costs | Fees are reasonable to cover enforcement and anti-trafficking measures | Deferred for evidentiary development; parties may present cost evidence at reconvened trial |
| Performer record inspections / warrantless access (Count VII) | Mandated production of performer files is a Fourth Amendment intrusion | Inspections are administrative, necessary to enforce anti-trafficking rules; adult-entertainment is closely regulated | Deferred: Court declined to rule without evidence tying inspections to objectives; applied Burger/Patel framework pending further factual development |
| Prohibition on simulated sexual activity (Count VIII) | Phrase is vague/overbroad and chills protected erotic expression—especially performer-on-performer conduct | Ban prevents prostitution/solicitation and reduces secondary effects; still leaves solo erotic expression | §§150.606(e),(f) are constitutional as to simulated acts with patrons/spectators/employees, but overbroad and not narrowly tailored as applied to performers simulating sexual activity with other performers; partially enjoined |
| Vagueness of "owner/operator/manager" (Count XI) | Terms are undefined and chill speech by creating uncertain vicarious liability | Terms have common meanings and are used consistent with Code's context and other provisions | Denied relief; terms not unconstitutionally vague |
| Federal preemption (IRCA) of work-status verification (Count XIII) | Ordinance's verification/penalty scheme conflicts with IRCA and is preempted | Ordinance is a licensing law and falls within IRCA's savings clause | §§150.224(c),(f),151.214(c),(f) preempted by IRCA; permanently enjoined |
| State preemption re: age (Count XIV) | Florida statute governing employment at alcohol-selling establishments preempts local age restrictions | Florida statute does not speak to 18–20 performing at adult clubs; ordinance addresses distinct regulatory interest | Denied relief on preemption theory; §562.13 does not preempt the City's age regulation (issue nonetheless deferred on merits) |
Key Cases Cited
- City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (erotic dancing is protected, but falls within "outer ambit" of First Amendment; secondary-effects analysis)
- Barnes v. Glen Theater, 501 U.S. 560 (1991) (erotic/nude dancing is expressive conduct entitled to some First Amendment protection)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (licensing regimes lacking procedural safeguards may be invalid prior restraints)
- Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (licensing that vests unbridled discretion is unconstitutional)
- Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (prior restraints carry heavy presumption against validity)
- Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999) (striking licensing provisions for discretion/delay)
- Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301 (11th Cir. 2003) (upholding regulation of adult entertainment as secondary-effects regulation; fee and prior-restraint principles)
- Doe I v. Landry, 909 F.3d 99 (5th Cir. 2018) (upholding age restriction in limited context tied to curbing trafficking)
- Lozano v. City of Hazelton, 724 F.3d 297 (3d Cir. 2013) (local immigration/work-status laws can be preempted by IRCA)
- New York v. Burger, 482 U.S. 691 (1987) (standards for administrative searches of closely regulated businesses)
- City of Los Angeles v. Patel, 576 U.S. 409 (2015) (warrantless administrative-inspection statutes must meet Fourth Amendment standards)
- City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004) (judicial review requirement to prevent undue delay in adult-business licensing schemes)