Posted by: Patricia Salkin | February 14, 2014

Fed. Dist. Ct in FL Finds Plaintiff Lacked Standing to Challenge Constitutionality of Ordinance Defining Adult Entertainment

The plaintiff, 8330 Tokyo Valentino, LLC, leased a property in Miami, Florida, where the property was zoned “T6-8-0” which permits “for retail uses and places of assembly for purposes of entertainment.” The plaintiff sought to use the property as a business to sell non-adult DVDs, clothes, games, memorabilia, and provide “luxury movie theater or booths,” for patrons to view movies rented at the business or pay a fee to watch a movie of their own. The plaintiff made two applications for a certificate of use for a retail store, the first dated September 1, 2011, and the second dated June 27, 2013, the plaintiff made only one application for a business license, dated August 17, 2011.

The plaintiff alleged that the defendant, the City of Miami, would not issue a certificate of use or a business license to the plaintiff, which the plaintiff based off of information contained in an email from a Deputy City Attorney, Aaronson, to one of the plaintiff’s lawyers. In sum, the email stated that the plaintiff was clearly intending to use the property as an “adult entertainment establishment,” which was prohibited under the T-6-80 zoning classification. The plaintiff further argued that the City imposed an enforcement lien against the plaintiff’s landlord, which the plaintiff alleged was also based on the City’s determination that the plaintiff’s property was an adult entertainment establishment.

The court ordered the plaintiff to submit any violations it received from the City and any documentation indicating that a lien was placed on the property. One of the notices served as a warning to the landlord that the property was operating as an adult entertainment establishment, which was a violation of the code, and directed the landlord to rectify the violation and appear before the City for a hearing. The second notice the landlord received, dated December 17, 2012 was a “Final Administrative Enforcement Notice” which stated that the landlord was in violation of a zoning ordinance prohibiting the erection of a sign without a permit, and that landlord had until January 22, 2013 to fix the violation, or a lien would be placed on the property.

In spite of the fact that the City agreed with the plaintiff that the property was not in fact operating as an adult entertainment establishment, the plaintiff alleged that the City’s determination that it was an adult entertainment establishment and that the City placed a lien on the property caused the plaintiff to close the store, and ultimately lose profits. In its complaint, the plaintiff asserted a facial and as-applied challenge to the ordinance that defined adult entertainment establishment. The plaintiff’s claims, generally, were that the definition of adult entertainment was in violation of the First and Fourteenth Amendments because it was overly broad, was not narrowly tailored, and created a content- based restriction on speech. The plaintiff also alleged that the City’s zoning provisions relating to adult entertainment did not apply. The plaintiff sought a preliminary injunction and the City moved to dismiss the complaint.

Prior to ruling on the merits, the court needed to determine if the plaintiff had standing to bring the cause of action. To establish standing, the plaintiff must show an injury in fact, a casual connection between the injury and the alleged causal conduct, and the likelihood the injury could be redressed from a favorable decision. To suffer an injury in fact, the injury must be “an invasion of a legally protected interest,” and not one that is “conjectural or hypothetical.” The plaintiff claimed that the zoning ordinance defining adult entertainment placed a restriction on the speech rights of the citizens of Miami, and therefore, to demonstrate harm form this restriction the plaintiff needed to show that it was prevented in engaging from speech “he considered to be constitutionally protected speech.”

Because the plaintiff vehemently alleged that it was not operating as an adult entertainment establishment, which the defendant agreed, the court found that the plaintiff simply could not allege it suffered an injury in fact. Meaning, that if the plaintiff was not operating as an adult entertainment establishment then the zoning ordinance could not have a negative affect on its First and Fourteenth Amendment rights. Moreover, the plaintiff’s applications for a certificate of use and a business license were not denied because it was operating as an adult entertainment establishment, but because it violated the zoning ordinance with respect to erecting a sign without a permit. The court found the plaintiff placed too much weight in the email from the Deputy City Attorney to its own counsel. And lastly, that the liens did not provide any evidence that the denials were based on the plaintiff’s property possibly operating as an adult entertainment establishment.

Although the court determined that the plaintiff did not suffer an injury in fact, it went on to discuss the factors of redressability and traceability. The court found that the plaintiff could not satisfy the requirement of redressability and that it could not prove a casual connection between the alleged injury and alleged misconduct, for the same reasons it did not suffer an injury in fact.

With respect to the plaintiff’s final claim that the zoning ordinance defining adult entertainment did not apply to it, the court declined to exercise supplemental jurisdiction because the plaintiff lacked standing on the claims the court had jurisdiction over. The court granted the City’s motion for summary judgment and dismissed the plaintiff’s complaint with prejudice.

8330 Tokyo Valentino, LLC, v. City of Miami, Florida, 2013 WL 6869393 (SD FL 12/30/13)

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