Lady J. Lingerie, Inc. v. City of Jacksonville

BARKETT, Before DUBINA and *, Judges, Circuit and JONES Senior Judge. Circuit DUBINA, Judge: Circuit require consolidated cases us to These determine de novo constitutionality Jacksonville, provisions of a several Flori- (the “City”) subjects da ordinance that licensing, businesses to various safety, health and zoning regulations. plaintiffs/appellants “lingerie The shops” dancing. that showcase nude City classifies them as “adult entertain- ment establishments.” Fla. 150.103(c) (re- Adult Ent. & Serv.Code printed appendix). court district * Jones, designation. Honorable R. Nathaniel Senior Circuit, Judge sitting by Circuit for the Sixth Co., Fla., ica, Broward Inc. v. plaintiffs’ some of the initially agreed with Cir.1991). (11th A preliminar 1161-65 the ordinance objections to licensing narrowly if it is tailored is valid enjoined enforcement ily response, interest, zoning provisions. government to serve a substantial The district its ordinance. City amended alternative it allows for reasonable upheld most injunction Eateries, lifted its court Int’l expression. See avenues the new ordinance. provisions Combating 1161-65. 941 F.2d at Inc. v. Jack Lingerie, Lady J. See secondary effects of adult busi harmful (M.D.Fla.1997). sonville, F.Supp. 1428 nesses, neigh as increased crime and such appeal. perfected then govern is a substantial blight, borhood Renton, 475 ment interest. I. 50-52, 925; Barnes v. 106 S.Ct. U.S. re- regulations whether we decide Theatre, Inc., First 501 U.S. Glen establish- entertainment quiring 2456, 115 L.Ed.2d 504 111 S.Ct. exceptions com- zoning for apply to ments (Souter, J., judgment). in the concurring City Amendment. First ply with the easily meet zoning ordinances Most establish- adult entertainment permits standards, does but this ordinance these only right in one as of operate to ments narrowly Even if the ordinance not. (Commercial/Central area, CCBD the government tailored to serve substantial District) They may also zone. Business interest, alter- only allows for reasonable it (Commercial Com- in operate the CCG-2 if expression 93-plus the native avenues of zone, if the but munity/General-2) But to zone count. in the CCG-2 sites excep- zoning them a grants zoning board zone, in an adult enter- operate the CCG-2 Jacksonville, Land Use Fla. tion. See for an apply must tainment establishment 656.813(IV)(e)(7) in (reprinted ap- § Code exception makes an exception. This addition, ordinance forbids pendix). a license. The does equivalent of in zone from locat- either adult businesses for licensing procedure separate have a of resi- distances ing specified within (for adult entertainment schools, churches, dences, bars or other which, exception is a incidentally, zoning Jacksonville, Fla. See adult businesses. indispensability but prerequisite), 656.1103(a) in (reprinted § Code Land Use us to treat exception persuades zoning appendix). as well. it like a license have to objection The main restraint, li prior As a form of only two there are is that the ordinance two de commonly contain censing with schemes comply zone that in the CCBD sites opportunity This means requirements. fects: discretion the distance es- offi gives public all adult entertainment practically delay. An ordinance zoning ex- for a apply per must to tablishments decide whether power cials the City. in anywhere operate ception activity pre must contain mit expressive this, argues but City concedes they on which objective criteria cise and sites 93-plus available there are decisions; an ordinance make their must zone, include and that we should CCG-2 discretion gives too much The com- calculation. sites in the those v. invalid. See Shuttlesworth officials is maintains, sites, enough. it bined 95 147, 89 Birmingham, City of (1969). Licens 935, 22 L.Ed.2d zoning regula usually review We prompt require also must ing ordinances the deferential area under tions permits pub An ordinance decisions. which “time, manner” standards place, or deny applica effectively lic officials delineated Supreme Court is also indefinitely it sitting on tion Inc., Theatres, Playtime, v. Renton Maryland, 380 Freedman invalid. See 41, 50-54, 89 L.Ed.2d (1986); Eateries Amer U.S. also Int’l see (1965). “first-come, zoning exceptions ing first-served” method of al- Jacksonville’s fair); contains both defects. process locating booths at the state Church Scientology, (labeling city F.3d A. Discretion duty clerk’s to obtain information from applicants “purely Section 656.131 Jacksonville for solicitation licenses- ministerial”). specifies procedures Land Use Code zoning exception. obtaining is not the Such case subsection d Jacksonville, Fla. Lan Use Code (c)(1). precise None of the nine criteria is § appendix). (reprinted objective. individually All of them— procedures apply applicants all and collectively empower zoning — just sorts —not adult businesses. Subsec covertly board to against discriminate (c)(1) contains the criteria adult entertainment establishments under in deciding board must consider whether guise general “compatibility” or “en- grant exceptions. These are run-of-the- vironmental” considerations. mill zoning compatibility considerations: 656.131(c)(1)(h) Fla. Land Use Code & uses, with contiguous environmental im (hi). Even seemingly-innocuous fire traffic, pact, pedestrian effect of and so on. safety provision is too broad. It does not floor; (c)(2) just But they are a subsection say per “there must be x number of doors permits impose the to board more restric foot”; square says it that buildings must requirements tive applicants. on “sufficiently permit entry be accessible to The district court held that subsection fire, onto property by police, the rescue (c)(2) unconstitutional, and severed that and other . services.” Id. provision from the rest of the ordinance. 656.131(c)(l)(viii) added). § (emphasis City The appeal part does not of the precise objective. This is neither nor Instead, judgment. plaintiffs appeal part judgment upheld of the all of clear, City To be may still use the (c)(1) criteria. The district court found (c)(1) (and matter) (c)(2), criteria for that (in that these factors the absence of sub- applicants for who are not to entitled First (c)(2)) sufficiently section limit the board’s protection. Amendment We find disagree. discretion. We application troublesome the of the other- criteria, The standard incantation of the Shut- zoning wise-valid to adult busi- tlesworth principle may is that statutes not plaintiffs’. nesses like the give public officials “unbridled” discretion deny permission engage Delay constitu- B. tionally protected expression. E.g., City of opportunity public for officials Co., Publ’g Lakewood v. Plain Dealer 486 delay is another form of discretion. 750, 757, 2138, U.S. 108 S.Ct. 100 L.Ed.2d this, Recognizing Supreme Court held (1988) Shuttlesworth, 771 (citing 394 U.S. in Freedman that a Maryland movie cen 151, 935). at 89 implies S.Ct. This sorship law violated the First Amendment some measure of discretion is acceptable, because it require prompt did not deci but virtually any cases show that case, FW/PBS, sions. a later Inc. v. beyond amount of discretion merely Dallas, City suspect. ministerial is Standards must be (1990) 107 (plurality opinion), L.Ed.2d 603 See, precise objective. e.g., Shuttles- (the majority plurality of the Court plus worth, 150-51, 394 U.S. at 89 S.Ct. 935 Justices) concurring applied three Freed (“narrow, objective, definite”); Church man to an licensing adult business scheme. Scientology Flag Org., City Serv. Inc. v. (Brennan, See also id. at 110 S.Ct. 596 Clearwater, (11th 2 F.3d 1547-48 J., concurring). Specifically, the Cir.1993) (“definite Court precise”); see also agreed that ordinances must contain two v. Soc’y Int’l Krishna Con- Heffron sciousness, Inc., 640, 649, procedural safeguards prompt 452 to ensure 101 (1981) (uphold- decision-making: licensing officials limbo, knowing whether the will prompt deci- to make required be must Further, must sions; judicial day review shut it down the next or not. prompt erroneous denials. requirement available to correct Freedman’s status be 596; v. Redner at public id. while officials are quo be maintained Cir.1994). (11th Dean, 29 F.3d require- not eliminate the deciding does here. required safeguards The same must ment the decision itself be (And anyway, quo the status prompt. First, any real put fails to the ordinance zoning exception.) no here is zoning board. limits on time hearing within 63 must hold board safeguard, procedural for the second As excep- an applies for days after a business spe does not we note that this ordinance Jacksonville, Fla. Land Use tion. See cifically prompt judicial review provide for 656.131(c)(4). nothing re- § But Code board’s, may This zoning decisions. days, a decision within quires squarely not be fatal. We have never held failure The ordinance’s period. other time judicial provision review explicit that an renders require a deadline for decision enough that state law may essential. It Redner, 29 F.3d it unconstitutional. See judicial review provides general right 1501. Redner, of administrative decisions. See ordinance City concedes that (discussing & n. 9 Cent. 1501-02 board a deadline give does not Campaign Freeze Florida Nuclear v. decision, out that points but it (11th Cir.1985), Walsh, F.2d 1515 begin permits Publishing Miami Herald Co. days apply- after operating its business 45 (11th Hallandale, F.2d Cir. Jacksonville, Fla. Land Use Code ing. See 1984)). Still, argued have not appendix). Once (reprinted it appeal, on so we leave unde this issue appli- application, an the board denies cided. City The down. See id. cant must shut conclude, emphasize to To we want in delay that a argues that this ensures to draft an ordinance it is not difficult decision-making process keep will secondary effects of addresses the harmful opening. from plaintiffs running without afoul adult businesses county in Redner made The defendant ordinance, This First Amendment. its ordinance. But similar defense of however, it unconstitutional because is “may applicant an ordinance said that es- nearly all adult entertainment channels appli- open; give to it didn’t permitted” exceptions pro- through tablishments open. right cants an absolute to in turn the zon- gives That process cess. ordinance, in The at 1500-01. Jacksonville delay a decision discretion ing board contrast, “may applicant that an be- says applica- indefinitely covertly deny toor facility” days 45 after operating gin [his] reasons. tions for content-sensitive Jacksonville, Fla. Land Use applying. in right as of may operate plaintiffs no discretion 656.1109. This leaves Code zones, they long as as CCBD and CCG-2 keep an adult busi- City’s in the hands to limitations. We with the distance comply request for denying its ness closed before on remand to the district court leave it to exception. in may operate also they decide whether may applicant that an Does it matter City. parts of the other the board is still begin operating while We think not. considering application? its H. only permits applicants The ordinance Next, challenge two con- the board de- operate conditionally. Once first, an hours of provisions: tent-neutral exception, the for an application nies an enter- requires operation rule A condi- must close its doors. from 2:00 to close establishments tainment A exception no at all. exception tional second, a day, and every a.m. until noon scarcely operate can afford business 1364 requiring

rule that rooms adult enter- striction alleged on First Amendment free- tainment be at least 1000 greater doms is no than is essential to the in area. These are square feet rules con- O’Brien, furtherance of that interest.” City because the tent-neutral enacted 377, at U.S. 88 S.Ct. 1673. suppress expressive them not con- Supreme Court has observed that dancing, but to tent of nude alleviate the expressive conduct test of O’Brien secondary harmful effects which adult “time, place, Barnes and the or manner” commonly businesses are associated. City test of Renton “embody much the First we must choose which test applies Barnes, 566, same standards.” at U.S. regulations. possi to these There two (discuss- (plurality opinion) S.Ct. 2456 “time, bilities. The first place, is the ing v. Community Clark Creative Supreme manner” test the Court used to Non-Violence, 288, 8, 468 U.S. 298 & n. zoning regulations evaluate the in City of (1984)). 104 S.Ct. 82 L.Ed.2d 221 initially developed Renton. The Court Still, which test we choose at least deter- expression test to review restrictions on approach questions, mines how we these fora, taking place but in City of even if it doesn’t affect the outcome. And Renton, it used this test evaluate the matter, for that our choice which test to validity Barnes, zoning regulations. may use occasionally be outcome determi- at (plurality U.S. S.Ct. 2456 Ward, instance, “time, native. opinion) (citing Against Ward Rock Rac case, place, or manner” said that Court ism, 781, 791, 491 U.S. 109 S.Ct. the means are narrowly chosen tailored as (1989), Renton, long 29). they substantially are “not broader 89 L.Ed.2d says “time, Renton place, necessary that a to achieve govern- regulation manner” narrowly must be tai ment’s interest.” 491 U.S. at lored to serve a substantial government O’Brien, S.Ct. 2746. Contrast this with interest, it and must allow for reasonable which the Court said regulation alternative expression. avenues of See 475 expressive may conduct greater be “no 925; U.S. at Eater Int'l than is essential to the furtherance of [the ies, 941 F.2d 1161-65. government’s] interest.” 391 four-part alternative is the test the 88 S.Ct. 1673. The Court surely right O’Brien, Court laid out United States v. suggest that these tests are generally the 367, 1673, 391 U.S. 88 S.Ct. 20 L.Ed.2d Clark, 298, same. See 468 U.S. at 104 (1968). 672 This test has been used to (O’Brien’s, test, S.Ct. 3065 four-part “in evaluate regulations expressive of con- analysis, little, the last any, is if different duct—conduct that “speech” contains both time, applied from the standard place, “nonspeech” elements. Id. at 88 restrictions”). or manner But in the occa- Theatre, S.Ct. 1673. In Barnes v. Glen case, may sional there be a difference be- Inc., 111 S.Ct. 115 tween “not substantially broader” and “no (plurality opinion), both the greater than is essential.” plurality Souter, and Justice see id. at We need not decide whether this is that (Souter, J., 111 S.Ct. 2456 concurring in occasional case. only We decide one case judgment), used this test to resolve a time, case, at a City and in this Renton of challenge by dancing nude establishments guides our inquiry. The Renton to a state law of that banned nudity. appropriate test is because the rules we permits The test government regulation of today consider operation hours of expressive “if conduct it is within the con- —the square foot provisions regulate power Government; stitutional if it — “time, “place” “time” and in the place, or furthers an important or gov- substantial interest; affect, manner” They ernmental sense. if but do not governmental directly interest regulate, is unrelated to the suppression expressive conduct expression; free and if the incidental re- plaintiffs’ is the basis of the First tailored, we decline to scrutinize dancing. ly but nude challenges: Amendment closely in O’Brien as burning City’s statute reasons for this rule as card The draft regulated indecency law Barnes we would have us do. If plaintiffs conduct,' opposed as expressive here, the hoiv of plaintiffs with the were side when, they did so or the to the where argue whether evi- litigants next would less messages that made way in a secondary effects at 6:15 in dence and 1000 operation The hours potent. justifies requiring adult busi- morning rules are different. square foot 9:30, evi- at or whether nesses to close justifies requiring them dence from 9:30 requires that these Renton City of line-drawing That sort of is close at 10:45. a sub narrowly tailored serve rules be re- a narrow interest, they tailoring inconsistent and that government stantial regulations prohibits alternative avenues quirement allow for reasonable at 475 U.S. See than neces- expression. “substantially broader that are Eateries, F.2d at 1161-6 925; Int’l S.Ct. Ward, at sary.” 491 U.S. long as narrowly tailored A 5. rule O’Brien, 2746; at but 391 U.S. cf. than neces substantially broader it is “not may greater be no (regulation interest.” government’s sary to achieve government inter- to the essential 2746. Ward, course, est). is, today we face issue question, but we conclude that a closer operation the hours of Whether substantial- operation rule is “not hours Jack question. a close is valid is rule necessary.” It is there- sonville, ly broader than Ent. & Serv.Code Fla. Adult 150.422(a) appendix). also narrowly tailored. Since rule (reprinted § fore oral counsel for open When we reasonable alternative avenues asked leaves en City requires adult why the argument may stay expression&emdash;adult businesses to close from tertainment days a day, seven fourteen hours open (the plaintiffs limit week&emdash;it until noon 10:00 a.m. is valid. hours), could these he argument their Nor can we. with a reason. up not come the 1000 conclude alsoWe we need reason. is whether question is valid. See foot rule square 150.301(g) Adult & Serv.Code Fla. Ent. ample evi- concede plaintiffs (h) Ample evi appendix). them to justify requiring (reprinted dence & exists hours, elsewhere, so the evening dence, late during the close from Jacksonville whole indis- rule as a operation finding hours of court’s the district supports government a substantial putably place serves unhealthy activities take illegal would have us interest. But es at adult entertainment in small rooms for this rule on City’s reasons look at the square feet is thousand One tablishments. is no evi- There hour hour basis. say this so we can’t large, not submit, gov- dence, a they substantial substantially broader neces rule is justify requiring adult to ernment interest sary. until from 10:00 a.m. to close businesses the 1000 Still, argue that plaintiffs it argument, but is a clever noon. This will force them move. foot square rule regulation requirement that confuses the comply can’t plaintiffs two of the At least interest government a substantial serve plaintiffs One narrowly present locations. that it be in their requirement with the feet, provi- only square floorspace that end. We look is tailored to total serves whether it as a to decide remodel because sion whole another can’t it, Since government interest. a substantial As we see structural constraints. narrowly does, it is ask whether it we The is matter. test though, this doesn’t tailored. open leaves reason- regulation whether the it expression; avenues able alternative operation hours of imagine can an

We will plaintiffs that the guarantee not does to not be narrow- broadly as rule drawn so operate present their If 10%, able loca- no stockholder owns more than tions. then all are “principal stockholders stock- holders.” Id. plaintiffs argue The confining Without the this unconstitutionally right chills their them, plenty places plain- there are expression. free The responds comply tiffs can move to with this rule. the plaintiffs do standing not have to chal- plaintiffs’ expert own that at testified lenge provision, this but if they that even least 40% of the available sites in Jackson- do, provision the disclosure is valid. large ville are enough to accommodate square foot rooms. There is no evi- We are satisfied that least one of the figure dence to indicate that this is not also plaintiffs has standing to challenge this representative of CCG-2 zone. Forty rule. The ordinance requires corporations percent of 93-plus enough. sites is names, to disclose principal stockholders’ Lady Lingerie J. a corporation. III. Compelled disclosure of the sort plaintiffs next challenge the the Jacksonville ordinance entails threat validity provision of a appli that makes an stymie ens to the exercise of First ineligible cant for an adult entertainment Amendment freedoms —the so-called license if the recently Sheriff has revoked “chilling effect”—-so it must survive “ex premises. license for the same See Jack Valeo, acting scrutiny.” Buckley v. sonville, Fla. Adult & Ent. Serv.Code 1, 64, 46 L.Ed.2d 659 § 150.214 (reprinted in appendix). A site curiam). (per Specifically, there ineligible until the second October 1 must be a “relevant correlation” or a after the Sheriff revokes the license. Id. “substantial relation” between requiring This site disability provision applies even disclosure principal stockholders’ names to an applicant with a clean record who and a government substantial interest. happens buy an lease affected site for (citations omitted); Id. see also NAACP use an adult entertainment establish Alabama, 449, 463-64, ment. 2 L.Ed.2d 1488 (government We conclude that plaintiffs none of the substantial). interest must be standing has challenge provision Here government interest is sub- because injured. none is Not has stantial, but we do not see “relevant none of plaintiffs applied for a license correlation” or a “substantial relation” be- site, for an affected but there is no evi- tween the principal names of dence that stockholders there affected sites in and the harmful secondary effects of were, Jacksonville. If there plaintiffs entertainment say could at establishments. City’s least the site disability argument best provision is that principal limits their choice of stockhold- where to move. ers But without tend to have evidence a discernable on affected influence sites, management, say can’t even that. and that the So needs we dismiss this keep eye claim. on who is running adult busi- stockholders, nesses town. But qua

IV. stockholders, do run corporations; offi- cers and directors do. The City We now turn our can en- attention to a provision force its requires through rules corporate them. See applicants Acorn for Inv., Seattle, Inc. v. City business licenses to disclose 887 F.2d the of (9th “principal Cir.1989); names of 226 Books, stockholders.” Jack- East Brooks cf. sonville, Fla. Adult Ent. & Inc. v. Memphis, Serv.Code 226 of 150.205(a)(l)(iii) (6th § Cir.1995) (reprinted in appendix). (invalidating an ordinance A “principal stockholder” is one requiring who owns disclosure of all stockholders’ at least 10% names); of the stock a corporation. of Peoria, Genusa v. 619 150.103(k) § Id. (7th in (reprinted appendix). Cir.1980) (invali- F.2d 1216-17

1367 (1930); L.Rev. also R. Wayne all stock- 717 see requiring dating ordinance Scott, Jr., more than 10% of stock LaFave Austin W. Criminal owning & holders (2d ed.1986); personal to submit various 255 M. of an Law Rollin Perkins & officials). Accordingly, Law, licensing data to Boyce, Ronald Criminal N. 913-14 provision is unconsti- (3d ed.1982). that this we conclude agree hold We that due tutional. from process prohibits imprison- state ing person a without of some proof form

V. personal blameworthiness more than a “re- provision final chal- sponsible relation.” of adult entertain- lenge makes owners upshot is this: criminal liable criminally for ment liability superior based on is respondeat servants, agents by their acts committed if the is a acceptable “respon defendant in Jacksonville, Fla. employees. See to the or sible relation” unlawful conduct (re- § Ent. & Serv.Code Adult omission, if penalty but does acts printed appendix). Not all are imprisonment. involve A defendant is a acts within a imputable, only those done if has “responsible power relation” he servant, scope of au- agent employee’s or prevent occurring. violations from owner. See id. thority under Park, 670-73, at 1903. S.Ct. 150.510(b). § For their first five convic- liability im provision The owner makes tions, a punished by owners are either fine a prisonment possibility—indeed it is days jail; for the sixth and subse- or 10 subsequent for the sixth and of certainty offenses, penalty up is a fine quent at fenses. It is unconstitutional therefore 150.510(c). § days jail. See id. least that extent. is Respondeat superior a familiar con fine, however, salvage if the We can “public in the welfare” cept context proof requires “responsible not crimes in crimes. These offenses are position Proof of a defendant’s relation.” sense; instead, they are a the traditional enough, alone is not see id. pose regulating activities means requires more. provision but this safety. risk health or special scope of Only [a] “done within the acts Park, v. In United States U.S. servant, au- agent employee’s scope (1975), 1903, 44 for ex S.Ct. thority imputable. under the owner” president was ample, the defendant Jacksonville, Fla. Adult Ent. & Serv.Code corporation got food a national retail 150.510(b). this to mean We understand Drug into trouble the Food and Ad only responsi- that an owner-defendant having rodent-infested ministration for he has ble acts omissions his upheld The Court convic warehouses. reason, we For power prevent. because, he was in a president, authority to fine City’s leave intact to the unlawful fail “responsible relation” by their violations committed owners for sanitary warehouses. Id. ure to maintain 1903; employees. see also United S.Ct. Dotterweich, 277, 285, States can two take Personal blameworthiness (1943). 134, 88 L.Ed. 48 act unlawful intent. forms: unlawful imprison de- to convict and It is common only pun But Park’s significantly, the acts of others—witness fendants for fine; is a was a incarceration dif ishment conspiracy re- conspiracy law. But still distinguish matter. Commentators ferent in- proof of unlawful quires individualized offenses from offenses for public welfare liability, strict which tent. The converse is penalty imprisonment, which involves not intent. We requires of act but proof argue respondeat superior in is an whether mens rea decline to consider appropriate these “true crimes.” requirement constitutional indispensable Responsi Sayre, Francis Criminal Bowes Staples Another, prison. sending for someone bility the Acts Harv. Cf. States, 600, 616, United 1793, 128 (penalty percent ten corporation’s or more of a suggests imprisonment statute capital officers, stock and includes the di- dispensing construed as should not be and principal rectors stockholders of cor- rea). Instead, we hold that mens due poration principal is a stockholder requires least process at individualized chapter; under this provided, that if no proof liability intent or act. The owner corporation stockholder of a owns or con- neither, provision requires City may so the trols, legally beneficially, or at least ten it to incarcerate owners. use stock, percent capital of the all stockhold- ers shall be principal considered stockhold- VI. ers; provided, and further if corpo- plaintiffs last issue the raise registered ration is with the Securities and concerns damages their entitlement to Exchange Commission pursuant or days they were closed after the Chapter Florida Statutes and its stock implemented licensing the initial and zon is for sale to general public, it shall not ing provisions which the district court any principal considered to have stock- struck down. This claim is meritless. correctly The district court holders. held that the damages. are not entitled to

For foregoing reasons, we affirm ^{[*] [*] [*]} judgment district in part, court’s reverse application; 150.205 License applica- part, part, dismiss in and remand this tion fee. case proceedings for further consistent (a) opinion. with this A person desiring to engage operating bookstore, business of an adult part, AFFIRMED in REVERSED theater, picture adult motion adult enter- part, in part, DISMISSED and RE- establishment, tainment or escort service MANDED. shall file with the applica- Sheriff sworn APPENDIX tion on supplied by forms the Sheriff. The application shall contain at least the follow- Code, VI, Fla. Chapter Title ing accompanied information and be by the (Adult Entertainment and Services following documents: Businesses, Occupa- Trades and Code— tions) (1) If is: chapter, (i) individual, Definitions. An his name. unless the context requires: otherwise (ii) A partnership, the full name the partnership and the name of the * * * managing partner and the names of (c) Adult entertainment establishment partners, all other general whether or means a commercial establishment where limited, accompanied by partner- owner, or an employee agent or ship instrument or a copy certified owner, suffers, permits, allows, encour- thereof. ages, pays any or person to engage in (iii) A corporation, the exact corpo- nude entertainment on the premises. rate incorporation name and state of Adult entertainment establishment also in- and the name of cludes the chief establishment which executive contains or operates an adult officer and the names of all entertainment booth. other offi-

cers, principal directors and stock- holders, accompanied by the articles (k) incorporation Principal stockholder all amendments means an indi- vidual, partnership or thereto corporation of incorpo- certificate controls, owns legally ration, or beneficially, copies certified thereof. be owner and to the imputed

shall be if done of the owner an act be deemed prior license Issuance 150.21k of servant, or agent of such scope within license. revoked authority under the scope of employee’s the Sher- by license revoked aWhen owner. loca- for the be issued iff, shall no license violating this of convicted (c)Any owner li- the revoked by formerly covered tion pur- imposed responsibility due to chapter license that a time period cense. convic- upon be this section shall shall this section suant under prohibited shall be following follows: as punished tion year from October one be offenses, by a fine (1) revocation. first five for the fifty dollars two hundred less than of not requirements. General 150.301 dollars, or five hundred than nor more requirements special to the In addition jail; in days up ten by imprisonment unless otherwise part, in contained of- (2) subsequent and for the sixth bookstore, mo- adult exempted, each three less than fenses, fine of not by a adult entertain- theater and picture five more than nor fifty dollars hundred establishment, meet each shall ment by imprisonment and hundred dollars of this section. requirements nine- more than twenty nor than not less ty days. have an entrance shall premises All (g) (Zon- Code, Section 656 Fla. i.e., room which lobby, or

room Use) ing Code—Land fa- outside, sanitary from entered (e). The in set forth subsection as cilities Zoning exceptions 656.131 or large as may be lobby or room entrance licensee chooses. as small must premises in

(h) rooms applica- All other (c) acting upon respect With either: exceptions: zoning tions one thousand (1) not less than be an or- issue shall The Commission area; or feet

square if it finds exception grant der letters clearly marked of the evidence preponderance from “No Cus- height two inches less use proposed presented record Allowed.” Patrons tomers or fol- meets, applicable, the extent criteria:

lowing standards (i) with the Com- consistent Will be operation. Hours any subse- Plan, including prehensive facilities, adult the Council (a)Adult adopted quent plan entertainment shall theaters thereto; and adult movie pursuant bookstores 2:00 a.m. hours of between open not be ex- with the (ii) compatible beWill noon. or contiguous uses isting general character with the

compatible area, considering population responsibility. Owner and orientation design, scale density, area, property to the mean of structures shall (a) owner part, As used or uses existing similar co-owner, values, part- owner, and and include zoning; chief or executive ner, partner managing (hi) officer. an environmental not have Will health, inconsistent impact servant, agent (b) All acts community; safety and welfare of an owner unpaid, paid employee, (iv) Will not have a detrimental ef- grant exception necessary for the or- traffic, on pedestrian fect vehicular or derly use of property the have been conditions, parking or will accomplished. generation result the creation or (4) longer mutually Unless time is health, traffic inconsistent with the agreed upon by applicant the safety and welfare of community; the particular case, Commission (v) Will not have a detrimental ef- public hearing by shall be held the Com- fect on the future development con- mission consider an application for tiguous properties area, general or the zoning exception within not more than according Plan, Comprehensive to the sixty-three days from the of filing date including any subsequent amendment of the completed application. Notice of plan Council; adopted by hearing shall pro- be made as (vi) Will not result in the creation vided in s. party 656.136 and a shall be objectionable noise, or excessive person heard in byor agent or attorney. vibrations, fumes, lights, odors, dust (5) The violation of the terms of an activities, physical taking into ac- exception, including conditions and safe- existing count zoning uses or in the guards may thereof, which part be a vicinity; shall be deemed a violation of the Zon- (vii) Will not overburden existing ing punishable Code and provided as facilities; public services and the Zoning Code. (viii) Will be sufficiently accessible 656.SIS Community/General Commer- permit entry onto the property by cial Category. fire, police, services; rescue and other IV. Commercial Community/Generab- (CCG-2) District. (ix) Will be consistent defi- meet the standards and criteria of the nition of a zoning exception, and will ^{[*] [*]} Hs (c) zoning classification in which such Permissible by exception. use uses proposed located, to be and all oth- er requirements for such particular ^{[*] [*] [*]} use set forth elsewhere Zoning in the Adult entertainment and service Code, or otherwise by adopted activities. Planning Commission. (2) In issuing its order to grant a zoning exception provided in the Zon- For the purposes Definitions. Code, ing may place Commission of Part the following shall definitions more requirements restrictive and con- apply: ditions applicants on provided (a) Adult entertainment or service facil- in the Zoning A Code. recommended ity service, means escort adult book- grant order to a zoning exception shall store, massage parlor, nude adult motion granted not be unless and until pro- picture theater or adult entertainment es- cedures in chapter this have been com- tablishment, as defined in Chapter

plied with. Code. Ordinance (3) The use for which a zoning excep- time as the order is deemed to be final owner, his agent or sion shall not be has been granted commenced lessee by the Commis- until by such the' tion. 656.11OS Distance Hi H< limitations; ^[*] excep- (a) or a final order has been issued and all No adult entertainment or service improvements stipulated in facility shall be located on a site unless the in a Communi-' [establishment] tainment of the distance all exceeds equals site district, General-2 subsection; ty/Commercial required limitations fa- begin operating may from feet thousand One submitting a after days forty-five cility entertainment another adult boundary of op- conditional application. The completed facility. services or such only until permitted shall be eration the bound- (2) from hundred feet Five or denied granted exception the time as district. a ary of residential by a trial completed review is judicial from an estab- (3) feet thousand One This con- jurisdiction. competent court of or church. school lished permit not shall operate grant ditional bound- from the hundred feet Five any in violation of operate applicant the an on has which any business ary of the particular In or law. ordinance other beverage license. consumption premises of in violation operate not shall (b) ordinance Notwithstanding any in this forth set requirement any distance any pri- notwithstanding contrary, and the chapter. entertainment any of adult status legal or in concurring BARKETT, Judge, Circuit 1995, 1, no March facility, as of services or dissenting part: in part and facility shall or service entertainment adult majority’s much of agree I in a parcel or or on a site located be However, not I do in case. opinion this has part, in which, or in whole structure opera hours of that Jacksonville’s believe consumption premises an on granted been upheld be under can provision club. is a bottle which license or beverage analysis set “time, and manner” place, any (c) Notwithstanding The Playtime v. in Renton forth notwithstanding any pri- contrary, and Inc., 89 atres, 106 S.Ct. U.S. 475 entertainment- adult legal status or (1986).1 29 L.Ed.2d 1, 1995, no as March facility, services or pro- operation the hours agree I facility services or entertainment adult restriction is a vision content-neutral in a or parcel on a site be located shall governmental the substantial it serves which, part, whole structure secondary ef- eliminating interest boundary of feet five hundred within late-night operations produced fects on-premises an which has any business establishments. adult entertainment beverage license. consumption however, vio- Renton, provision this Under commencement Conditional it is because Amendment First lates exception %vithout sub- to serve narrowly tailored not ordi- interest. an ex- government applied has stantial person a Where enter- of adult the closure requires adult enter- nance operate in order ception entertainment, Ren- test, on adult incidental effect ton, not Renton note that I would also 1. Barnes, appropriate provides the not v. in United States analysis forth set rec- previously have We review. standard of 20 O’Brien, U.S. Renton between distinction ognized this plurality by a applied L.Ed.2d America, Eateries Inc., International Theatre, Barnes. v. Glen in Barnes Fla., County, (1991), Inc. Broward is the 115 L.Ed.2d county Cir.1991), ordi- (11th upheld a we at the ordinance applicable standard. Unlike nightclubs within prohibiting adult nance in this one before us in Renton issue 1,000 and within district of a residential feet case, generally-applicable with a dealt Barnes Renton pointed out that We of a church. feet considering nudity, whether public ban on considering involved were we the case constitutionally nudity could ban on enter- only applied ordinances tainment, dancing in an adult entertain- applied to nude on all a ban Barnes involved while we consid- Because establishment. ment Accordingly, we concluded nudity. public that, enter- singles out adult ering regulation that Barnes, controls still "Renton even after regulation, rather tainment establishments analysis.” Id. 1161. our has an statute that generally-applicable tainment during early broader than necessary to effectuate the morning city hours when the concedes city’s interest in nighttime security. The secondary there are no effects. Renton’s court explained that because the sun did tailoring requirement, however, narrow re- in Tupelo set until well after 6 P.M. for quires a to draw city its ordinances “to good part of year, the ordinance affect that category of theaters shown “unnecessarily restricted [individuals] produce to fects_” secondary unwanted ef- the time in which they may parade.” Id. Renton, 106 at 512. Although the recognized court S.Ct. 925. By analogy, it seems to me that “the difficulty Tupelo faces pinpointing closure, to justify city must limit its the exact time at which nighttime secu- regulation to the hours where such second- rity arise,” problems id., it found the city’s ary effects exist. city has, Because use of a P.M. cutoff overbroad since any justification all, without barred nighttime security could not justify ban- adult entertainment establishments from ning parades during the summer when the operating during the late morning hours sun does not set until approximately 8:30 with no any of secondary effects, indication P.M. Id. the ordinance is “substantially broader We face a similar situation here. Al- necessary,” Ward v. Rock Against though city Racism, may 781, unquestionably regulate operation hours (1989), L.Ed.2d adult and must be invali- enter- dated.2 I tainment believe that the establishment majority’s avoid asser- the sec- tion that city ondary needs no reason to effects associated with night- force late hours, entertainment city here, like city in Beck- close during morning eman, the late hours flies has done so in an overbroad man- Renton, the face of which makes clear ner requiring during closure the late city where a regulates to avoid secondary morning hours when no secondary effects effects, regulation its must be drawn “to have been shown to exist. The fact that affect that category of theaters shown the ordinance as a whole here serves to to produce the unwanted secondary ef- address problem of late evening hours ” Renton, fects .... 106 cannot save ordinance more than S.Ct. 925. the fact Beckerman, whole, taken as a

The majority problems offers no addressed authority for its position. nighttime I security. believe that the Fifth Circuit’s opinion in Beckerman v. City Tupelo, Miss., (5th 664 F.2d 502 Cir. Unit A Dec.

1981), although not precedent, binding on

directly point and guide should our

analysis. Beckerman, the court invali- a city

dated ordinance forbidding parades P.M.,

after 6 finding the ban substantially 2. Although city (3d could certainly 1993) mandate Cir. (upholding‘ban operating on closure if it secondary showed during effects adult entertainment establishments before hours, morning these late it does not even 10:00 A.M. and after day 10:00 P.M. and all purport to make a showing such and so this Satellite, Sunday); Biloxi, Star Inc. distinguishable ordinance is from the other (5th Cir.1986) F.2d 1079-80 (up ordinances upheld which have against been holding operating on ban adult entertainment First challenges. Amendment See Ben Rich establishments before 10:00 A.M. and after Vineland, Trading, Inc. v. 126 F.3d midnight day all Sunday); see also Na (3d Cir.1997) 160-63 (upholding ban on Amusements, Dedham, tional Inc. v. Town of operating adult entertainment establishments (1st Cir.1995) 43 F.3d 741-45 (upholding P.M.); before 8:00 A.M. and after 10 Mitchell ban operating on entertainment business be v. Commission on Adult Entertainment Estab- A.M.). tween 1:00 A.M. and 6:00 Delaware, lishments 131-39

Case Details

Case Name: Lady J. Lingerie, Inc. v. City of Jacksonville

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 27, 1999

Citation: 176 F.3d 1358

Docket Number: 98-2088, 98-2207

Court Abbreviation: 11th Cir.