Posted by: Patricia Salkin | November 8, 2019

Eleventh Circuit Holds Law of the Case Doctrine Did Not Bar Owner’s Claim for Retrospective Relief Regarding Adoption and Enforcement of Adult Entertainment and Business Licensing Ordinances

This post was authored by Matthew Loeser, Esq.

Tokyo Gwinnett, LLC filed a §1983 action alleging that Gwinnett County’s adoption and enforcement of its adult entertainment and business licensing ordinances to deny it permission to sell erotic media and sexual devices violated its constitutional rights. The United States District Court dismissed complaint as moot, and the owner appealed. The Court of Appeals then vacated and remanded. On remand, the District Court again dismissed the complaint, and the owner appealed.

On appeal, Tokyo first argued the District Court erred in finding that it lacked standing to bring claims challenging the County’s now-repealed adult entertainment ordinances. The court noted, however, that Tokyo Valentino’s perception that the County acted in bad faith was not a cognizable Article III injury, but rather a mere an allegation regarding the County’s motives. Tokyo’s second purported injury related to its fears that in the future the business would suffer harm if the County’s efforts continued. The court found this alleged injury related to future or prospective harm, and not imminent or actual harm. As such, the court affirmed the District Court’s dismissal of Tokyo’s claims seeking damages for enforcement of the now-repealed ordinances.

Tokyo sought a declaration that its sale of sexual devices constituted a lawful prior nonconforming use that was authorized under the now-repealed adult entertainment ordinances, and that the new ordinances’ failure to include provisions grandfathering in lawful prior nonconforming uses violated Tokyo’s rights under federal and state law. The District Court dismissed Tokyo’s contention that it was a “Novelty Shop,” and thereby dismissed the complaint’s allegation that Tokyo’s planned land use was a lawful prior nonconforming use. On appeal, the court noted that this ruling was not based on any definition featured in the Ordinance, any record evidence showing how these terms were defined, any affidavit showing how the Zoning Director had interpreted them, or any explanation for why a common or ordinary definition of “Novelty Shop” excluded sexual devices. Accordingly, the court reversed the District Court’s dismissal of this claim.

Tokyo lastly argued the District Court erred in its decision to abstain under the doctrine established in Younger v. Harris from considering claims challenging the County’s current adult entertainment ordinances. The record reflected that Tokyo filed its federal suit almost a full year before the County initiated its state action. Additionally, at the time the County initiated the state-court enforcement action, Tokyo’s appeal concerning its motion to amend was still pending before the court. The court found that there was no precedent allowing Younger to apply to a plaintiff, months after the case being filed, amending its complaint to bring additional claims related to the same controversy. Moreover, the court noted that it had been the County’s actions, rather than Tokyo’s, that interfered with Tokyo’s opportunity be heard in federal court. For the aforementioned reasons, the court held that the District Court erred in concluding that the state court enforcement action preceded Tokyo’s federal court action against the new ordinances.

Tokyo Gwinnett, LLC v. Gwinnett County, Georgia, 940 F.3d 1254 (2019)

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