Posted by: Patricia Salkin | December 31, 2020

Fed. Dist. Court in FL Holds City’s Special Use Restriction on Strip Clubs is Unconstitutional

This post originally appeared on Otten Johnson’s Rocky Mountain Sign Law Blog and is reposted with permission.

In a victory for plaintiff B&G Opa Holdings’s “Klub 24,” a federal district court recently struck down an ordinance used to shutter a strip club that briefly opened in a suburb north of Miami.  Three months after an Opa-locka, Florida licensing clerk stamped “approve” on B&G’s application for a “playhouse,” the city returned to shut down the operation.  Opa-locka explained that it had failed to run that use through its adult-entertainment special use permitting scheme and that Klub 24 was therefore operating without a license.

Klub 24’s Chained Doors Following City Shut-Down. Source: Miami Times

Litigation followed.  Adopting the magistrate’s recommendation, the district court granted summary judgment on B&G’s claims that the city’s ordinance unconstitutionally prohibited all adult-entertainment uses and also gave the city too much discretion to prohibit such uses.

In what appears to have been some administrative bungling—and perhaps some misdirection from B&G—the city first allowed Klub 24 as an “other club” in January 2018.  When it became clear that Klub 24 was in fact a strip club, consternation followed, and the city put the kibosh on the operation in April 2018.  Per Opa-locka ordinance, adult entertainment uses were required (1) to be located in a “transit corridor” zone district and (2) to hold a special use permit.  Trouble ensued when B&G pointed out that the “transit corridor” zone district did not in fact exist.

B&G’s litigation asserted numerous constitutional claims, among them the ones noted above as well as assertions that Opa-locka’s definitions of adult entertainment were vague and overbroad, and also that its sign code was unconstitutional.  With respect to the vagueness and overbreadth challenges, and in the interest of maintaining at least some degree of decorum, it suffices to say that the city’s definitions of adult entertainment and sexual activities were… adequately detailed.  B&G’s sign code challenge likewise seemed likely to prevail given the code’s many content-based distinctions and the substantial discretion it afforded regarding sign approval.  In an unusual turn, however, the court denied summary judgment on the ground that factual disputes existed about whether B&G had misrepresented its operation and therefore arrived with unclean hands.

On the more substantial claims regarding the core of B&G’s use, the club prevailed.  First, because Opa-locka’s limited adult entertainment uses to a zone district did not exist, the city unconstitutionally failed to provide adequate sites for such businesses under the Supreme Court’s decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).  Second, the court concluded that Opa-locka’s special use criteria gave the city unconstitutionally expansive discretion to prohibit adult entertainment uses.  While those special use criteria would appear unremarkable to any land use practitioner, they were not “precise and objective.”  The city’s code also failed to specify a timeframe for a decision and was therefore unconstitutional in that regard as well.

B&G Opa Holdings, Inc v City of Opa-Locka, 2020 WL 5822312 (S.D. FL 9/11/2020)


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