Owners of nude dancing establishments (hereinafter “plaintiffs”) brought suit against the City of Jacksonville (hereinafter “the City”) alleging that the City’s zoning scheme violated their First Amendment right to present nude dancing. The district court granted partial summary judgment and both parties appealed.
Plaintiffs’ businesses opened in 1982 and 1986, predating many Jacksonville zoning restrictions on adult entertainment. As a result, they operated as lawful non-conforming uses until 2005, when the City amended its adult zoning scheme. Prior to the amendments, adult establishments were allowed in Commercial/CommunityGeneral-2 (hereinafter “CCG-2”) districts on land designated for Heavy Industrial (hereinafter “HI”) use. In fact, the HI description at that time said “adult entertainment facilities are allowed by right.” The adult zoning scheme also contained various buffer requirements and mandated that businesses to obtain discretionary exceptions from the local sheriff before opening. The 2005 amendments removed the HI reference to operating adult businesses as of right and placed it in a description of CCG-2 districts, implying that adult entertainment would be allowed in all CCG-2 districts, not just those with HI land use designations. However, an HI reference remained in a general description of commercial uses. The City interpreted the ordinance as permitting adult businesses only in CCG-2 zoned for HI. The second change to the zoning scheme in 2005 was a mandatory amortization provision requiring any non-conforming adult business to cease operation at the non-conforming location; they could only continue operation at a new location that complied with the zoning scheme.
Plaintiffs sued, alleging the zoning scheme was an invalid time, manner and place restriction because it left plaintiffs without alternative locations for their protected activities. They also alleged that the amortization provision was unconstitutional but those issues were not raised on appeal. Plaintiffs pointed to two specific provisions that constituted a violation – first, the requirement that they receive a discretionary exception rendered any available locations effectively unavailable for purposes of counting alternative locations, and second, that the City’s comprehensive plan combined with the buffer requirements eliminated any alternative locations and therefore effectively zoned adult businesses out of existence. They sought a declaratory judgment that the City’s adult zoning scheme was unconstitutional and an injunction barring the City from enforcing the amortization provision. The City, on the other hand, denied that no alternative locations existed, and called the remaining reference to HI in the description of commercial uses “a clerical oversight.” They further stated the discretionary exception requirements were invalid for locations within CCG-2 districts.
The district court agreed that the HI reference was merely a scrivener’s error. They looked at the legislative history, which showed the City’s intent to remove the HI restriction and change the adult land use designation to CCG-2. Regardless, they found the provisions invalid under two separate theories. First, the discretionary exception provision conflicted with the pronouncement that adult businesses were permitted as of right in CCG-2 districts and since the comprehensive zoning plan is akin to a constitution, conflicting ordinance provisions are invalid. Alternatively, if the City’s plan did not invalidate the exception requirements, they were unconstitutional under Lady J. Lingerie, Inc. v. City of Jacksonville, which mandated that adult businesses be permitted in some areas where they could operate as of right. The district court found the amortization provision constitutional however, and plaintiffs would be required to move to a new location, which would not be subject to the exception requirements. Both parties appealed.
While this appeal remained pending, the City passed legislation to remove all references to discretionary exceptions and deleting the remaining suggestion that adult businesses must locate in HI zones. The court did not believe that the City passed the legislation to manipulate the court, nor did it have concerns that the City would re-enact the old legislation. This determination rendered this appeal moot. Plaintiff’s remaining argument that their businesses were lawful conforming uses after the 2005 amendments was discussed briefly. This argument was foreclosed by the advisory opinion and ripeness doctrines, and because it hadn’t been raised in district court. As a result, the court dismissed the appeal and remanded the case with instructions for the district court to dismiss the action.
Jacksonville Prop. Rights Ass’n, Inc. v. City of Jacksonville, FL, 635 F.3d 1266 (11th Cir. 3/25/2011)
The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/200915629.pdf
