CURVES, LLC, d.b.a. Curves Bar & Grill, James D. Gann, Plaintiffs-Appellants, v. SPALDING COUNTY, GEORGIA, Captain Tony Ranieri, Defendants-Appellees.
No. 10-13871.
United States Court of Appeals, Eleventh Circuit.
July 6, 2012.
a lapse in the naming of an arbitrator or arbitrators or umpire.”
Mary Katz, Frances L. Clay, Chambless, Higdon, Richardson, Katz & Griggs, LLP, Charles E. Cox, Jr., Charles E. Cox, Jr., LLC, Macon, GA, James R. Fortune, Jr., Janice M. Wallace, Beck, Owen & Murray, Griffin, GA, for Defendants-Appellees.
Before EDMONDSON and WILSON, Circuit Judges, and VINSON,* District Judge.
PER CURIAM:
Plaintiffs operated an alcohol-selling nightclub in Spalding County, Georgia. Defendant Spalding County‘s ordinances prohibit nude dancing where alcohol is sold. Plaintiffs sued, challenging the constitutionality of the ordinances and asserting claims for malicious arrest and malicious prosecution. The District Court granted summary judgment in favor of Defendants on Plaintiffs’ constitutional claims. The District Court also granted summary judgment in favor of Defendants on Plaintiffs’ malicious arrest and malicious prosecution claims.
Plaintiffs appeal the District Court‘s summary judgment ruling on the merits. In addition, Plaintiffs also question the impartiality of the District Judge-former Judge Jack Camp-and seek retroactive recusal and vacatur of summary judgment.
We affirm the District Court‘s decision granting summary judgment in favor of Defendants.
BACKGROUND
Curves opened for business in 2006. It was licensed to sell alcohol and operated as a sports bar in Spalding County (“the County“). Curves began offering fully nude dance entertainment in April 2007; before then, sometimes waitresses would merely “flash” their bare breasts at patrons.
After undercover operations and investigation by the authorities, Curves filed suit to challenge the constitutionality of the County‘s alcohol and adult ordinances (the “Original Alcohol Ordinance” and the “Original Adult Ordinance“). In February 2007, Curves sought to enjoin Defendants from enforcing the ordinances.
After an evidentiary hearing the District Court granted a preliminary injunction, which enjoined Defendants from enforcing parts-but not all-of the ordinances.1 The District Court denied Curves‘s motion to enjoin section 6-3013, the provision of the Original Adult Ordinance that prohibited nude dancing in places that serve alcohol. So, section 6-3013 continued to prohibit Curves from offering nude dancing while it also sold alcohol. Curves appealed to this Court.
Despite the continued operation of section 6-3013, Curves offered nude dancing together with alcohol. Spalding County, in turn, enforced section 6-3013. Defendant Tony Ranieri, a law enforcement officer, would enter Curves and determine wheth
On 23 August 2007, Spalding County repealed both the Original Adult Ordinance and the Original Alcohol Ordinance and replaced them with two new ordinances:
- Ordinance No. 2007-17, Spalding County Code §§ 6-3001 through 6-3016 (“Amended Adult Ordinance“); and
- Ordinance No. 2007-18, Spalding County Code § 6-1071 (“Amended Alcohol Ordinance“).
The amended ordinances took effect on 28 August 2007. After the County repealed the original ordinances, this Court dismissed Plaintiffs’ then-pending appeal as moot. Curves LLC v. Spalding Cty., No. 07-12577 (11th Cir. Dec. 28, 2007) (order dismissing appeal as moot).
Curves determined that it could not operate successfully without the ability both to sell alcohol and to offer nude dancing. So, Curves went out of business.
Plaintiffs then filed an amended complaint in the District Court, alleging that parts of the original and amended ordinances violated the First Amendment, that is, prevented the club from offering nude dancing. Plaintiffs also asserted a state-law-based malicious arrest claim and a federal-law-based malicious prosecution claim. Plaintiffs sought damages and fees only, abandoning all claims for declaratory and injunctive relief.
The District Court granted summary judgment in favor of Defendants. Plaintiffs appeal.
DISCUSSION
I. Retroactive Recusal and Vacatur
Plaintiffs contend that former Judge Jack Camp-who presided over and ruled on summary judgment-should be retroactively recused pursuant to
About retroactive recusal, section 455(a) requires recusal where “an objective, fully informed lay observer would entertain significant doubt about the judge‘s impartiality.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir.2000). The pertinent facts
Recusal pursuant to section 455(b)(1) requires that the judge “actually has a personal bias or prejudice concerning a party[.]” United States v. Amedeo, 487 F.3d 823, 828 (11th Cir.2007) (internal quotations omitted) (emphasis in original). Section 455(b)(1) is therefore narrower than section 455(a). Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 1156, 127 L.Ed.2d 474 (1994). No record evidence shows that Judge Camp actually had personal bias or prejudice concerning a party. Section 455(b)(1) does not require retroactive recusal.
Rule 60(b) vacatur for a potential section 455 violation involves consideration of these factors: the risk of injustice to the parties; the risk that denial of relief will produce injustice in other cases; and the risk of undermining the public‘s confidence in the judicial process. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988).
In this appeal from summary judgment, we review the record de novo: we give no deference to the District Court. So, injustice-if any-to these parties will be cured by our fresh review. Furthermore, because of our de novo review and because Judge Camp has resigned, the risk of injustice to other parties is non-existent. And because no fully informed objectively reasonable person would entertain significant doubt about Judge Camp‘s impartiality about this case, the public‘s confidence in the judicial process cannot be said to be undermined, especially in the light of our de novo review. The law does not require us to vacate Judge Camp‘s summary judgment decision.
II. Plaintiffs’ Constitutional Challenges to the Amended Alcohol Ordinance and the Amended Adult Ordinance
At the outset, we note that Plaintiffs’ briefs chiefly challenge the constitutionality of the Amended Adult Ordinance.4 For reasons discussed below, however, our review focuses on the Amended Alcohol Ordinance.
We first conclude that the Amended Alcohol Ordinance is constitutional. Because this conclusion is dispositive of this case, we do not reach the constitutionality of the Amended Adult Ordinance. But because the Amended Alcohol Ordinance incorporates by reference certain parts of the Amended Adult Ordinance, we do discuss those directly incorporated parts of the Amended Adult Ordinance that Plaintiffs challenge.
To be clear, in reviewing the constitutionality of the two amended ordinances, we will only address these arguments: (1) Plaintiffs’ arguments that “plainly and prominently” challenge the constitutionality of the Amended Alcohol Ordinance;
A. Constitutionality of the Amended Alcohol Ordinance
Plaintiffs contend that the Amended Alcohol Ordinance violates the First Amendment. We reject Plaintiffs’ contention.
On appeal from a grant of summary judgment, we review the District Court‘s legal conclusions de novo and view all evidenced facts in the light most favor-able to the non-moving party. E.g., Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.2008). We review the constitutionality of statutes de novo. Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1277 (11th Cir.2001).
i. Constitutionality under O‘Brien
“[A] city ordinance prohibiting nude dancing in establishments licensed to sell liquor is content-neutral and therefore, subject to review under the O‘Brien test.” Flanigan‘s Enterprises, Inc. v. Fulton Cty., 596 F.3d 1265, 1276 (11th Cir.2010) (quotation marks omitted). Because the Amended Alcohol Ordinance targets the undesirable secondary effects of nude dancing and alcohol sales, the Ordinance in this case is “independent of expressive or communicative elements of conduct, and thus [is] content-neutral.” Wise Enterprises, Inc. v. Unified Gov‘t of Athens-Clarke Cty., 217 F.3d 1360, 1363 (11th Cir.2000) (quotation marks omitted). Therefore, we review the Amended Alcohol Ordinance under the O‘Brien test.
The O‘Brien test requires these things: (1) the ordinance is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the government interest is unrelated to the suppression of free expression; and (4) the incidental restriction on the alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. United States v. O‘Brien, 391 U.S. 367, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).
Here, the Amended Alcohol Ordinance satisfies the four-part O‘Brien test. About the first part, we have “approved, as a valid exercise of the general police power, an ordinance prohibiting nude dancing where liquor was sold.” Sammy‘s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 995-96 (11th Cir.1998); see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 1514, 134 L.Ed.2d 711 (1996).
About the second part, an ordinance focusing on the deleterious secondary effects associated with adult entertainment undoubtedly represents a “substantial government interest.” E.g., Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860, 873-74 (11th Cir.2007).
The County provided factual evidence to support the substantialness of the government interest in reducing the secondary effects. For example, the County‘s Board of Commissioners considered live testimony, a compilation of studies, and various judicial decisions. And the Ordinance includes a preamble that describes the public purpose and reasons supporting the Ordinance‘s enactment. The County demonstrated that it had the required reason-
To satisfy the third part of the O‘Brien test, the ordinance must be unrelated to the suppression of free expression. We have made clear that “[o]rdinances that prohibit nude dancing where alcohol is served or consumed are independent of expressive or communicative elements of conduct, and thus are content-neutral.” Wise Enterprises, 217 F.3d at 1363 (internal quotations omitted). The Amended Alcohol Ordinance here represents precisely such a content-neutral ordinance that this Court has found to be “unrelated to the suppression of free expression.” Id. at 1364.6
About the test‘s fourth part, we have upheld similar nude-dancing-while-selling-alcohol bans. The Amended Alcohol Ordinance does not prohibit all nude dancing. To the contrary, the Amended Alcohol Ordinance “is narrowly tailored to the problem targeted by the County-the undesirable community conditions associated with establishments that combine alcohol and nude dancing.” Id. at 1365. The Amended Alcohol Ordinance complies with the O‘Brien test‘s fourth and final part: the restrictions are narrowly tailored and no greater than is essential to the furtherance of the government‘s substantial interest.7 The Amended Alcohol Ordinance satisfies O‘Brien‘s four-part test.
ii. Overbreadth
Plaintiffs also challenge the Amended Alcohol Ordinance on overbreadth grounds. To adjudicate this portion of Plaintiffs’ appeal requires us to address certain parts of the Amended Adult Ordinance: Plaintiffs contend that parts of the Amended Alcohol Ordinance are unconstitutional because section 6-1071(f) incorporates allegedly overbroad definitions from the Amended Adult Ordinance.
On First Amendment overbreadth grounds, a law is facially invalid if it “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute‘s plainly legitimate sweep.‘” Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973)). The Supreme Court cautions that overbreadth is “strong medicine” to be used “sparingly and only as a last resort.” Broadrick, 93 S.Ct. at 2916.
Plaintiffs contend that portions of the Amended Alcohol Ordinance are unconstitutional because section 6-1071(f) incorporates allegedly overbroad definitions from the Amended Adult Ordinance. Plaintiffs
Plaintiffs say the definition of “specified sexual activity” is too broad because, among other reasons, it bans “simulated” conduct and “erotic touching.” Plaintiffs cite, for example, to a (distinguishable) Seventh Circuit case to argue that the ordinance prohibits “the performance of a strikingly wide array of sexually explicit dance movements.” Schultz v. City of Cumberland, 228 F.3d 831, 847 (7th Cir. 2000). But the Amended Alcohol Ordinance does not inherently ban nude dancing at all, even nude dancing that includes “simulated” conduct and “erotic touching.” The Amended Alcohol Ordinance just disallows such acts in a commercial venue where alcohol is sold. The statute is not overbroad on this basis.
Plaintiffs also say “adult entertainment establishment” and other similar statutory definitions are too broad because the definitions could cover an impermissibly broad range of commercial establishments where some artistic kinds of nudity or other sexual expression might occur, and might even cover non-commercial places. We cannot agree.
First, the Amended Alcohol Ordinance in section (f)(5) contains a “mainstream exception.”9 Section (f)(5) clearly excepts different establishments that may-along with serving alcohol-at times feature some nudity or sexually explicit acts (like the traditional theater).10
Second, to establish unconstitutional overbreadth, the danger to the suppression of First Amendment rights must be both “real” and “substantial.” Broadrick, 93 S.Ct. at 2918. Plaintiffs predict that the Amended Alcohol Ordinance will ban an unconstitutionally broad range of expression. For example, Plaintiffs contend that the Ordinance would prohibit an establishment that features live performances only occasionally-as opposed to regularly-from staging a sexually explicit performance. But Plaintiffs’ various predictions of banned expression are too improbable to amount to “real” and “substantial” dangers to the suppression of First Amendment rights. For example, that hotels or museums or other non-sexually oriented places that do not regularly offer live entertainment might at some point offer live (or non-live) nude entertainment plus alcohol represents too remote of a possibility to pose a “real” and “substantial” danger of suppression of rights. The statute is not overbroad on this basis.11
iii. Vagueness
In the summary of the argument section, Plaintiffs’ initial brief mentions in an oblique and conclusory way a challenge to the Amended Alcohol Ordinance on vagueness grounds. Our law requires more elaboration: “[Plaintiff-Appellant] only mentioned his ... claim in the summary of the argument in his initial brief. Because [Plaintiff-Appellant] made no arguments on the merits as to this issue, the issue is deemed waived.” Kelliher v. Veneman, 313 F.3d 1270, 1274 n. 3 (11th Cir.2002); see also Marek v. Singletary, 62 F.3d 1295, 1298 n. 2 (11th Cir.1995) (“Issues not clearly raised in the briefs are considered abandoned.“) (emphasis added). Therefore, Plaintiffs abandon a potential vagueness challenge to the Amended Alcohol Ordinance.12
B. Constitutionality of the Amended Adult Ordinance
Plaintiffs also contend that the Amended Adult Ordinance unconstitutionally violates their free expression rights. We will decide nothing about the Amended Adult Ordinance today.
When a court upholds one statute that prohibits certain conduct, the court should not rule on the constitutionality of a second statute that also prohibits the same conduct: the second ruling would have no effect on the parties’ behavior. S. Fla. Free Beaches, Inc. v. City of Miami, 734 F.2d 608, 612 (11th Cir.1984); see also Cone Corp. v. Fla. Dep‘t of Transp., 921 F.2d 1190, 1210 (11th Cir.1991) (“A fundamental principle of constitutional law dictates that a federal court should refuse to decide a constitutional issue unless a constitutional decision is strictly necessary.“) (emphasis added).
We have upheld the Amended Alcohol Ordinance. The Amended Alcohol Ordinance constitutionally prohibits the same acts Plaintiffs desire to engage in (selling alcohol and providing nude dancing) that the Amended Adult Ordinance would prohibit. So, we decline to reach the constitutionality of the Amended Adult Ordinance.
III. Constitutionality of the Original Adult Ordinance and the Original Alcohol Ordinance
Plaintiffs challenge the constitutionality of the Original Adult Ordinance. The District Court properly found section 6-3013 of the Original Adult Ordinance to be severable from the rest of the statute and to be enforceable. Section 6-3013 clearly proscribed the same acts (serving alcohol together with nude dancing) as does section 6-1071(f) of the Amended Alcohol Ordinance. As discussed above, section 6-1071(f) constitutionally prohibits serving alcohol together with nude dancing. For similar reasons, section 6-3013 of the Original Adult Ordinance also did not violate the First Amendment.
Plaintiffs also challenge the constitutionality of the Original Alcohol Ordinance. Because section 6-3013 of the Original Adult Ordinance-which was in force at the same time as the Original Alcohol Ordinance-constitutionally proscribed the same conduct proscribed by the Original Alcohol Ordinance, we do not address the constitutionality of the Original Alcohol Ordinance. Plaintiffs were not harmed by the allegedly unconstitutional portions of the Original Alcohol Ordinance and therefore we make no ruling about the Original Alcohol Ordinance. See S. Fla. Free Beaches, 734 F.2d at 612; see also supra.
IV. Malicious Arrest and Malicious Prosecution Claims
Plaintiffs contend that the District Court erred in granting summary judgment to Defendants on the state-law-based malicious arrest claim and the federal-law-based malicious prosecution claim.
Malicious arrest under Georgia law requires an arrest without probable cause and with malice.
A federal malicious prosecution claim under
CONCLUSION
The District Court‘s decision granting summary judgment in favor of Defendants is
AFFIRMED.