Lead Opinion
GIBBONS, J., delivered the opinion of the court in which NORRIS, J., joined, and ROGERS, J., joined in the result. ROGERS, J. (pp. 507-08), delivered a separate concurring opinion.
OPINION
Plaintiffs-appellants Dan Miller, Joseph Cirino, Julious Mosley, and their respective businesses — Suede Nights, Spot 82, and the Mosley Motel — appeal the district court’s summary-judgment orders in favor of defendant Wickliffe, Ohio. Appellants allege that the city violated their constitutional rights by passing an ordinance that required a “nightclub” permit for certain establishments. The district court determined that appellants lacked standing and dismissed the case on those grounds but also reached the merits of* appellants’ claims and held that the Wiekliffe’s conduct did not offend the Constitution.
Plaintiffs here lack standing to challenge, as-applied or facially, the nightclub ordinance. Because they cannot demonstrate that Wickliffe had reached a final decision under the ordinance, or that they faced a credible threat of prosecution under it, plaintiffs cannot show a particularized and concrete injury sufficient to confer jurisdiction. Accordingly, we affirm the district court’s dismissal of plaintiffs’ claims.
I.
Julious Mosley owned the Mosley Motel in Wickliffe, Ohio (“Wickliffe” or “City”). In 2009, the motel’s lounge area was in need of a tenant. Around this same time, Dan Miller was seeking a new location for his nightclub. Miller’s original nightclub was in neighboring Willoughby, Ohio, and, during its brief time there, had drawn the ire of law enforcement due to allegations of illegal activity by some of its patrons.
Miller found a new home for his nightclub at the Mosley Motel. In May 2009, Miller and Mosley executed a five-year lease for the motel’s lounge, located at 28500 Euclid Avenue in Wickliffe. Miller
In addition to receiving the proper permits from ,the City, Miller also needed a liquor license from the State of Ohio. In June 2009, he applied for a D5A-6 liquor permit from the Ohio Division of Liquor Control. The City did not oppose Miller’s application, but several Wickliffe religious organizations did. Specifically, Telshe Yeshiva Rabbinical College, All Saints Elementary School, Sacred Heart Chapel, Borromeo Seminary, and the Center for Pastoral Leadership — all of which are located very near or adjacent to the Mosley Motel — asked for a hearing so that they could oppose Miller’s application. After hearing from these organizations, the City, while still not formally opposing the liquor permit, passed Resolution 2009-14, which expressed support for the organizations’ opposition to Miller’s application. The City believed that the sale of alcohol at 28500 Euclid Avenue would be “detrimental to and [would] substantially interfere with the morals, safety and welfare of the residents of Wickliffe” and that the location of the Mosley Motel was so situated that the issuance of a permit would create “substantial interference with the public decency, sobriety, peace, or good order” of the neighborhood. (DE 32-3, Ord. 2009-14, Page ID 195-96.)
The Ohio Division of Liquor Control conducted a hearing on Miller’s application in September 2009. Miller claims that, despite having previously waived any objection to his application, “numerous officials” appeared at the hearing, including “the Mayor, the Chief of Police, and members of the Wickliffe City Counsel [sic].” (DE 37-1, Miller Aff., Page ID 253.) Representatives from the religious organizations were also in attendance. The Liquor Control Division ultimately denied Miller’s application, citing the objections of the religious organizations and noting that it agreed that granting the application would offend the peace and good order of the neighborhood and would interfere with the operation of the religious organizations and their schools. Despite having the right to do so, Miller did not appeal this decision nor does he allege that it was reached in error.
Resolutipn 2009-14 was not the City’s only action that September. It also unanimously passed Ordinance 2009-49 (“Ordinance”), which required “nightclubs” to obtain a permit before operating. Ordinance 2009-49 defined “nightclub” as:
a place operated for a profit, which is open to the public and provides the opportunity to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages, all of which are provided for a consideration that may be included in a cover charge or included in the price of the food or beverage.
(DE 32-4, Ord. 2009-49, Page ID 197.) The Ordinance divided nightclubs into “adult” and “teen” varieties, with former being open to only those twenty-one years of age and older. Adult nightclubs could operate any day of the week but had to close no later than 2:30 a.m. The Ordinance contained many other requirements that delineated the responsibilities of the nightclub and its owner, most of which were obligations to operate the nightclub in a
The application process was governed by specific rules that were spelled out in Section 747.09 of the Ordinance. Wiekliffe’s Director of Public Safety had to act on any application within thirty days. Additionally, the Ordinance provided that any application would be denied if “the location of the nightclub is within five hundred feet from the boundaries of a parcel of real estate having situated on it a school, church, library, public park, tavern, bar, adult cabaret, or another nightclub” or “within five hundred feet from the boundaries of any residential district.” (Id. at 200-201.) The Ordinance also prohibited the issuance of a permit if the applicant had been convicted of certain criminal offenses or if the establishment had its liquor permit revoked by the Liquor Control Division. Miller, Mosley, and their businesses never applied for a nightclub permit. .
After nearly two years’ time, Miller entered into an agreement with Joseph Ciri-no. Cirino paid Miller $40,000 for an ownership interest in a proposed billiards hall at 28500 Euclid Avenue. That business— Spot 82, LLC — initially had been granted a temporary-occupancy permit by the City, but, about two weeks after its issuance, that permit was revoked by a cease-and-desist letter. The cease-and-desist letter did not give a reason for the revocation of Spot 82’s temporary-occupancy permit, but, in his affidavit, Miller claims he later learned that the permit was revoked because Spot 82 “looked too much like a night club.” (DE 37-1, Miller Aff., Page ID 254.)
On May 17, 2012, Cirino, Miller, Mosley, and their respective business entities filed a complaint in federal court for the Northern District of Ohio. The complaint, as amended, raised eight claims: (1) a request for declaratory relief under 42 U.S.C. § 1983 due to Ordinance 2009-49’s alleged vagueness, overbreadth, and illegal retro-activity; (2) injunctive relief under § 1983 premised on the same; (3-5) three separate violations of 42 U.S.C. § 2000A for intentional racial discrimination, selective enforcement, and disparate impact; (6) a violation of 42 U.S.C. § 1983 based on equal-protection violations; (7) tortious interference with a contract; and (8) tortious interference with a business relationship. On July 30, 2013, Mosley filed another lawsuit against the City that raised the same claims as the earlier complaint but added two Takings Clause claims as well. The two cases were subsequently consolidated (at Mosley’s request), and then severed (also at his request).
The district court dismissed both cases, relying primarily on standing principles. Specifically, the district court found that plaintiffs lacked an injury in fact because none of them actually applied for a permit under the nightclub ordinance. Additionally, the court found that, if plaintiffs wished to sue the city for the passage of Ordinance 2009-49, they could not show more than a “generalized grievance,” which it claimed was insufficient to confer standing.
The district court also held that plaintiffs had a redressability problem due to the State of Ohio’s independent decision to deny Suede Nights a liquor permit. Making the practical assumption that plaintiffs could not operate their nightclub without a liquor license, the district court found that, even if the ordinance was unconstitutional, plaintiffs would still be foreclosed from opening a nightclub.
The district court also reached the merits of some of plaintiffs’ claims. It found that Ordinance 2009-49 did not implicate the First Amendment because it “regulates permits for businesses, not expres
II.
We review the district court’s grant of summary judgment de novo. Domingo v. Kowalski,
III.
At oral argument, plaintiffs conceded that they were challenging only the facial validity of the Ordinance, but then proceeded to make as-applied arguments. Thus, it is unclear what the precise nature of their challenge is. What is clear, however, is that their appeal is limited to the constitutionality of the Ordinance and that they have waived all other claims.
As an initial matter, plaintiffs need to establish standing for their as-applied and facial challenges. For the reasons explained below, plaintiffs’ claims are non-justiciable and must be dismissed.
A.
The district court dismissed the majority of plaintiffs’ claims because it found that they had not suffered an injury in fact. Plaintiffs claim that challenging the Ordinance would have been futile and allege that this excuses their failure to apply for a permit. The district court was right: the failure to apply for a permit bars any as-applied claims plaintiffs could make regarding the constitutionality of the Ordinance.
The power of the federal courts is limited to hearing actual cases and controversies. U.S. Const. art. III, § 2, cl. 2; see also Lujan v. Defenders of Wildlife,
Here, Wickliffe argued, and the district court found, that plaintiffs lacked constitutional standing to challenge the Ordinance because they never applied for a permit. The district court held that, because the City never denied, or even reviewed, a nightclub application from any of the plaintiffs, they cannot demonstrate an injury in fact. Additionally, the district court found that plaintiffs had a redressability problem because, even if they were awarded a nightclub permit, the State of Ohio’s independent denial of their liquor permit effectively prohibited them from opening a nightclub at 28500 Euclid Avenue. The district court invoked prudential-standing requirements as well and found that plaintiffs lacked standing because they could not show more than a “generalized grievance regarding Ordinance 2009-49.”
Plaintiffs’ as-applied constitutional claims regarding Ordinance 2009-49 are nonjusticiable. First, as the district court found, they lack an injury in fact because the Ordinance has not yet been applied to them. Their injury is conjectural and hypothetical, rather than concrete and particularized. Lujan,
Plaintiffs invoke the futility doctrine and argue that the City’s decision was sufficiently final to excuse their failure to apply for a nightclub permit. In essence, they argue that it is clear — from the history of the Ordinance’s passage and from the language of the law itself — that Wickliffe would have denied their application to open a nightclub, and thus, it would have been pointless for them to waste the time doing so.
The doctrine of futility does not save plaintiffs’ claims because they have failed to demonstrate that the City’s decision was sufficiently final to constitute an injury in fact. Although there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action, Patsy v. Fla. Bd. of Regents,
There is no final decision here. The district court found that, while “[plaintiffs make some showing that Wickliffe would likely have denied Plaintiffs’ application for a nightclub permit, they do not make a strong showing.” (DE 44, Op. & Order, Page ID 476.) We agree, and our precedent supports the district court’s decision to dismiss this matter. For example, in Bannum v. City of Louisville, we found that, despite not applying for a conditional-use permit from the City of Louisville, the plaintiffs had sufficiently demonstrated the city’s “adamant opposition” to plaintiffs’ proposal, and it was not unreasonable to find that “further proceedings would not have been productive.”
G & V Lounge v. Michigan Liquor Control Commission is also instructive.
The case before us is distinguishable from Bannum and G & V. Here, Wickliffe never indicated that it would not permit plaintiffs to open their nightclub. True, it denied their initial occupancy application because it alleged that the nightclub’s parking was insufficient under the relevant ordinance, but it offered them an alternative route: submit a conditional-use permit with revised parking plans. Plaintiffs never did so. Moreover, as the district court found, it is far from clear that the nightclub ordinance would have necessarily prohibited plaintiffs from opening a nightclub. Had plaintiffs actually applied for such a permit, we and the district court would have a decision, and a record, upon which to make a determination. But, again, plaintiffs never sought the required permit.
Additionally, while the record indicates that some city-council members were opposed to Suede Nights receiving a liquor permit and that the city council passed a resolution indicating its support for those Wickliffe citizens who opposed the issuance of such a permit, the City did not formally object. Wickliffe officials noted that their lack of formal objection was because the City concluded that it did not have legal justification to do so. These statements, far from indicating a local government that will block a company’s request regardless of the law, instead show one that knows and respects the limitations on its authority. And, while the city council created the Ordinance, it was not tasked with rendering decisions on applications; instead, that obligation fell to the Wickliffe Director of Public Safety. Thus, under its very detailed ordinance, the City lacked discretion to deny plaintiffs’ application, and the comments of the city-council members are not probative of the deci-sionmaker’s closed mind. This fact further distinguishes this case from Bannum and
B.
Plaintiffs also lack standing to challenge the facial validity of the ordinance. There may be very little difference to the standing requirements for as-applied and facial challenges, other than the former being the easier of the two. See Winter v. Wolnitzek,
“A plaintiff meets the injury-in-fact requirement — and the case is ripe— when the threat of enforcement of that law is ‘sufficiently imminent.’ ” Platt v. Bd. of Comm’rs on Grievances & Discipline of Ohio Supreme Court,
A threat is credible, in this context, if a person must censor herself to avoid violating the law in question. Id. at 452 (citing Carey v. Wolnitzek,
All plaintiffs here can say is that, had they done this or that, the City might have taken some action against them. This is the exact sort of hypothetical and speculative dispute that Article III proscribes from federal-court dockets. Ultimately, plaintiffs’ standing impediments, whether to their as-applied or to their facial challenges, stem from the same problem: they have failed to demonstrate that the City made a decision sufficiently final, or a threat sufficiently credible, to establish a concrete and particularized injury.
IV.
For the reasons stated above, we affirm the district court’s dismissal of plaintiffs’ claims.
Notes
. The district court found that plaintiffs lacked standing on redressability grounds, as well as due to the absence of an injury in fact. The district court relied on the State of Ohio’s independent decision to deny Suede Nights’ liquor permit application in determining that, even if the Ordinance was unconstitutional, Miller still could not have opened his nightclub. This assumes that one must serve liquor in order to run a nightclub, a presupposition that is as reasonable as it is erroneous. The district court’s reliance on the denial of the liquor permit in finding a lack of redressability was in error, but it does not affect the outcome here.
. Although the concurrence recommends disposing of this case on prudential-ripeness grounds, we need not reach that issue here. Given the Supreme Court’s questioning of the continued vitality of the prudential-standing doctrine, Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -,
. In some ways, G & V simply converted the plaintiff's attempt to utilize the futility exception into a facial challenge. Whether we found standing there based on a sufficiently final decision or on a credible threat of enforcement, the case demonstrates the type of government action sufficient to create an injury in fact.
Concurrence Opinion
CONCURRENCE
concurring.
I concur in the result but disagree with the majority’s reasoning. Plaintiffs’ request for pre-enforcement judicial review of Ordinance 2009-49 is not ripe — not in the constitutional sense of the doctrine, but based on the court’s equitable discretion to decline review.
Plaintiffs seek to challenge Wickliffe’s Ordinance 2009-49, which requires a business to obtain a permit before operating a nightclub, without first applying for the required permit. Plaintiffs thus ask the court to construe and judge the law before it has been applied — the classic case of pre-enforcement review. In particular, plaintiffs request declaratory and injunc-tive relief, which are equitable remedies. Federal courts have discretion over whether to grant such equitable remedies and may decline to exercise judicial review if a controversy is not ready to be decided. Abbott Labs. v. Gardner,
We should not anticipate the Supreme Court overruling such a significant line of precedent as the equitable ripeness doctrine without a clear dictate from the Court. It is true that the Court appeared hesitant to reaffirm the doctrine in Susan B. Anthony List v. Driehaus, — U.S. —,
The Supreme Court has summarized the proper inquiry as follows:
In deciding whether an agency’s decision is, or is not, ripe for judicial review, the Court has examined both the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.” [Abbott Labs.,387 U.S. at 149 ,87 S.Ct. 1507 .] To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.
Ohio Forestry Ass’n, Inc. v. Sierra Club,
First, the plaintiffs will suffer minimal hardship when judicial review is denied at this stage. Unlike cases where denying pre-enforcement review would force parties to immediately take action to avoid violating the law, Ordinance 2009-49 has no immediate implications for plaintiffs until they apply for and are denied a permit. Plaintiffs were not operating a nightclub before the City passed the law, so contrary to their assertions, they do not face immediate criminal prosecution without judicial review. Second, the City should not have to defend the content of its ordinance without applying it to a particular applicant. Because plaintiffs never applied for a permit, it is impossible to know whether the City would deny one. Finally, the record is not full enough for effective judicial review; indeed, there is no indication about how the City will apply the Ordinance. Although plaintiffs assert that applying for a permit would be futile, given the Ordinance’s strict location limitations, see Wickliffe, Ohio, Code § 747.09 (2017), there is no record evidence to prove that plaintiffs’ proposed nightclub location violates those restrictions.
Plaintiffs’ claims are accordingly not jus-ticiable because they are not ripe, and there is no need to reach Article III standing. Ruling on Article III standing grounds unnecessarily limits the power of Congress. Where there is no standing, Congress cannot permit judicial review even if Congress would weigh the ripeness factors entirely differently. In this case that means that Congress could not permit judicial review at a pre-enforcement stage like that presented here, even at the behest of the very people that the Ordinance appears to be regulating. We should not so limit the power of Congress, when the Supreme Court has provided a fully formed and nuanced equitable ripeness doctrine for us to employ, a doctrine that balances (subject to congressional correction) the interests of regulated parties in avoiding pre-enforcement harms with the interests of administrative bodies in executing public policy and the interests of courts in avoiding abstract disputes.