RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Brandywine, Inc., et al. No. 02-5507
ELECTRONIC CITATION: 2004 FED App. 0066P (6th Cir.) v. City of Richmond
File Name: 04a0066p.06
L. McSwain, STURGILL, TURNER, BARKER &
MALONEY, Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN,
FOR THE SIXTH CIRCUIT PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for
_________________ Appellants. Douglas L. McSwain, Bryan H. Beauman,
STURGILL, TURNER, BARKER & MALONEY,
Lexington, Kentucky, for Appellee.
BRANDYWINE , INC. d/b/a X
EXPRESSWAY VIDEO and - NORRIS, J., delivered the opinion of the court, in which
GARY R. SEWELL , - BATCHELDER, J., joined. COLE, J. (pp. 11-15), delivered
- No. 02-5507 a separate dissenting opinion.
Plaintiffs-Appellants, -
> _________________
,
v. - OPINION
-
_________________
CITY OF RICHMOND, -
KENTUCKY , - ALAN E. NORRIS, Circuit Judge. Plaintiffs Brandywine,
Defendant-Appellee. - Inc. and Gary R. Sewell appeal from the district court’s
- dismissal of their constitutional challenge to the city of
N Richmond’s zoning scheme. They maintain that the district
Appeal from the United States District Court court erred when it upheld Richmond’s revocation of the
for the Eastern District of Kentucky at Lexington. business license to their adult bookstore. For the reasons
No. 01-00283—Karl S. Forester, Chief District Judge. given below, the order of the district court is affirmed.
Argued: October 29, 2003 I.
Decided and Filed: March 3, 2004 On June 25, 2001, plaintiff Gary R. Sewell, owner and
president of Brandywine, Inc., applied for a business license
Before: NORRIS, BATCHELDER, and COLE, Circuit in the city of Richmond, Kentucky. Sewell stated on his
Judges. application that his business would engage in the “Rental,
Sales & Exhibition of Video, Books, Magazines, e[tc.]” He
_________________ signed a statement promising that “No Movies, Books,
Magazines, Novelty item or any other item of an adult nature
COUNSEL will not [sic] be sold, distributed or given away or traded at
this location.” City officials issued him a license. Despite his
ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV disclaimer, Sewell proceeded to open a retail store selling
& SCHWARTZ, Cincinnati, Ohio, for Appellants. Douglas sexually explicit books and other materials.
1
No. 02-5507 Brandywine, Inc., et al. 3 4 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
On July 18, 2001, city officials notified plaintiffs by letter the appropriate use category as determined by the planning
that their store was operating improperly under Richmond’s commission.”
zoning rules. The letter stated that the store was located in a
B-3 business zoning district, and that businesses engaged in At the time that plaintiffs applied for their license, the
selling adult materials were only permitted to locate in I-2 Development Ordinance included an April 2001 amendment
industrial zones. The city revoked plaintiffs’ business license that categorized “Adult Bookstores” as conditional uses in I-2
and ordered that the store be closed. zones. It was this amendment that city officials relied upon
when they revoked plaintiffs’ license.
Since the time that their business was closed, plaintiffs have
expressed no interest in relocating. Nor have they attempted Upon the revocation of their business license, plaintiffs
to appeal their license revocation through the process brought this action for declaratory, injunctive and monetary
provided by Richmond’s zoning rules. relief. They alleged that Richmond’s zoning scheme
unconstitutionally restricted their ability to exercise their First
II. Amendment rights. They claimed that the April amendment
forced adult businesses to locate in I-2 zones, where, as
Zoning in Richmond is governed by a Development conditional uses, the determination of whether they obtained
Ordinance. The Ordinance divides Richmond into five licenses was subject to the unbridled discretion of the board
zoning districts: agricultural, residential, business, industrial, of adjustments. They also alleged that the language of the
and public/semi-public. Within each zoning district, the April amendment was unconstitutionally vague and
Ordinance establishes three categories of permitted land use: overbroad, and that Richmond’s enforcement of the zoning
principal/prim ar y, conditional, and accessory. scheme resulted in the unconstitutional taking of their
Principal/primary uses are defined as uses “that are deemed property.
to be most appropriate, and are permitted outright in a district
without further review by the planning commission or the Less than one month later, in August 2001, Richmond
board of adjustment.” Conditional uses are defined as “uses modified the Development Ordinance, reclassifying adult
that may or may not be appropriate, dependent upon the bookstores as principal/primary uses in I-2 zones. With this
situation. These uses may call for restrictions on location, change, adult bookstores would no longer have to seek
size, extent, and character of performance in addition to those approval from the board of adjustments before locating in I-2
already imposed by the ordinance, and require review and zones.
permitting by [sic] the conditional use requiring review by the
board of adjustments.” The Ordinance gives the board of Despite the August amendment, plaintiffs continued to
adjustments the power to “approve, modify or deny any pursue their lawsuit. On March 29, 2002, the district court
application for a conditional use permit.” held that the Development Ordinance did not
unconstitutionally restrict adult expression, and that the
The Development Ordinance lists “bookstores” as language of the April amendment was neither vague nor
principal/primary uses in B-3 zones, and provides that “[i]f a overbroad. It further held that plaintiffs lacked standing to
specific use is not listed, the closest related use will serve as challenge the conditional use procedure applied to adult
bookstores in I-2 zones, and alternatively, that the August
No. 02-5507 Brandywine, Inc., et al. 5 6 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
amendment that classified adult bookstores as 2. Standing
principal/primary uses in I-2 zones rendered plaintiffs’
complaint about the conditional use procedure moot. Plaintiffs appeal from the district court’s determination that
Accordingly, the district court dismissed plaintiffs’ action. they lacked standing to challenge provisions of the zoning
This appeal followed. scheme that applied outside of B-3 zones because they had
not demonstrated an intent to relocate. Plaintiffs argue that
III. standing requirements are relaxed in challenges premised on
First Amendment violations, and accordingly, that they
1. Failure to Assert a Ripe Takings Claim should have been permitted to assert third party standing to
challenge the conditional use procedure applied to adult
Plaintiffs argue that at the time that their license was bookstores in I-2 zones. They do not appeal the denial of
revoked, Richmond’s zoning scheme was unconstitutional their claim that that part of the Development Ordinance was
because the April amendment only permitted adult businesses vague or overbroad.
to locate in I-2 zones subject to the unbridled discretion of
city officials. They contend that Richmond should have This court reviews de novo the district court’s conclusions
subjected them to the Development Ordinance as it existed of law with regard to standing. United States v. Miami
prior to the April amendment, when no mention was made in University, 294 F.3d 797, 806 (6th Cir. 2002). Where the
the Development Ordinance of adult bookstores, and district court has dismissed for lack of standing, we “accept
“bookstores” were categorized as principal/primary uses in B- as true all material allegations in the complaint, and construe
3 zones. the complaint in favor of the complaining party.” Warth v.
Seldin, 422 U.S. 490, 501 (1975).
Though plaintiffs have asserted a takings claim, that claim
is premature. We ascertain whether a takings claim is ripe or Under traditional requirements for standing, plaintiffs must
not de novo. Bannum, Inc. v. City of Louisville, 958 F.2d establish (1) injury in fact, meaning an invasion of a legally
1354, 1362 (6th Cir. 1992). A takings claim is not ripe until protected interest; (2) a causal relationship between the injury
“the government entity charged with implementing the and the challenged conduct; and (3) a likelihood that the
regulations has reached a final decision regarding the injury will be redressed by a favorable decision. G & V
application of the regulations to the property at issue.” Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d
Williamson County Regional Planning Comm’n v. Hamilton 1071, 1074 (6th Cir. 1994). The district court correctly held
Bank of Johnson City, 473 U.S. 172, 186 (1985). Because that under these requirements, plaintiffs have standing to
plaintiffs never appealed the revocation of their license, the challenge the zoning scheme’s ban on adult bookstores in B-3
city never reached a final, definitive position regarding the zones, since they were injured in fact when they were forced
application of the Development Ordinance to plaintiffs’ to close their business, a causal relationship existed between
business. the enforcement of the zoning scheme and the harm, and the
injury was redressable by an award of monetary damages for
lost business.
No. 02-5507 Brandywine, Inc., et al. 7 8 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
However, “a plaintiff may have standing to challenge some assert third party standing in every First Amendment facial
provisions of a law, but not others.” Clark v. City of challenge; rather plaintiffs may only do so in vagueness and
Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). In the instant overbreadth challenges. Accordingly, plaintiffs lack standing
case, plaintiffs never alleged any intention to locate outside a to challenge any provision of Richmond’s zoning scheme
B-3 zone. Therefore, under the traditional requirements, they inapplicable to B-3 zones.
lack standing to challenge the provisions of the zoning
scheme that do not relate to B-3 zones, including the 3. Mootness
application of the conditional use procedure to adult
bookstores in I-2 zones. Plaintiffs appeal from the district court’s conclusion that
their claims were moot. We agree with the district court that
Plaintiffs argue that they should be permitted to assert third although plaintiffs had standing to challenge those provisions
party standing to challenge the conditional use procedure of the zoning scheme that applied to B-3 zones, their claims
because they are mounting a First Amendment facial for injunctive and declaratory relief were rendered moot by
challenge to Richmond’s zoning scheme. Where plaintiffs Richmond’s enactment of the August amendment, which
challenge a statute or ordinance for vagueness or overbreadth, classified adult bookstores as principal/primary uses in I-2
the Supreme Court has concluded that they have standing to zones. That amendment permitted adult bookstores to locate
assert the rights of third parties whose protected speech may in I-2 zones without having to obtain permission from the
have been impermissibly curtailed by the challenged board of adjustments. Plaintiffs do not challenge the
prohibition, even though as applied to the plaintiffs constitutionality of the August amendment.
themselves, the ordinances only curtailed unprotected
expression. Young v. American Mini Theaters, Inc., 427 U.S. We review the district court’s conclusions of law with
50, 59 n.17 (1976). regard to mootness de novo. Cleveland Branch, N.A.A.C.P.
v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001). Claims
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), the become moot “when the issues presented are no longer ‘live’
Supreme Court concluded that the plaintiffs lacked standing or parties lack a legally cognizable interest in the outcome.”
to challenge “civil disability provisions” that barred County of Los Angeles v. Davis, 440 U.S. 625, 631 (1975)
individuals who had committed certain crimes or people (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
residing with those individuals from obtaining business Plaintiffs ask this court to declare unconstitutional the zoning
licenses, where none of the plaintiffs had committed the listed scheme as it existed when their license was revoked and to
crimes or resided with someone who had. FW/PBS, 493 U.S. enjoin Richmond from enforcing that scheme. We can
at 230-36 (plurality opinion). In East Brooks Books, Inc. v. neither declare unconstitutional nor enjoin the enforcement of
City of Memphis, 48 F.3d 220 (6th Cir. 1995), this court a provision that is no longer in effect.
concluded that the plaintiffs lacked standing to challenge
certain “disabling factors” that prevented them from obtaining Plaintiffs’ reliance on City of Mesquite v. Aladdin’s Castle,
business licenses, such as the failure to pay fees and the Inc., 455 U.S. 283 (1982), is misplaced. Plaintiffs cite
commission of certain crimes, because none of those Aladdin’s Castle for the proposition that the repeal of
“disabling factors” applied to them. East Brooks Books, 48 allegedly unconstitutional legislation does not render moot a
F.3d at 227-28. These cases indicate that plaintiffs may not claim for injunctive relief from its enforcement. Critical to
No. 02-5507 Brandywine, Inc., et al. 9 10 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
the holding in that case, however, was the fact that legislators the effect that the scheme provided them with no reasonable
had publicly expressed an intention to re-enact the offending opportunity to locate anywhere in Richmond.
legislation. No such threat was made in this case, so the
passage of the August amendment to the Development IV.
Ordinance provides sufficient assurance that the April
amendment will not be re-enacted. See Kentucky Right to For the foregoing reasons, the district court’s decision is
Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997). affirmed.
Therefore, plaintiffs’ claims for declaratory and injunctive
relief were properly dismissed as moot.
4. Failure to State a Valid Claim for Monetary Damages
Plaintiffs’ claim for monetary damages, however, was not
properly dismissed as moot, because an award of monetary
damages would compensate plaintiffs for the loss of the
opportunity to engage in protected expression caused by the
enforcement of the zoning scheme.
Though not moot, plaintiffs’ claim for monetary damages
must be dismissed for failure to state a claim upon which
relief can be granted. The Constitution permits a city to
require all sexually-oriented businesses to be located in a
particular area within that city. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 46 (1986). However, a city
cannot legislate adult-oriented businesses out of existence.
The First Amendment requires a city to provide a reasonable
opportunity for adult speech somewhere within its borders.
Id.
A claim alleging that a municipal zoning ordinance
unconstitutionally restricts adult businesses would have to
state that the zoning ordinance provided no reasonable
opportunity for adult businesses to operate anywhere within
the city. Stripped of those claims over which the district court
lacked subject matter jurisdiction, plaintiffs’ complaint only
alleges that Richmond’s zoning scheme, as modified by the
April amendment, unconstitutionally restricted their right to
operate in B-3 zones. Plaintiffs cannot assert a valid claim to
No. 02-5507 Brandywine, Inc., et al. 11 12 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
______________ We can evaluate one zone without the other no more than we
can measure night without day.
DISSENT
______________ Moreover, the district court’s holding that this suit could
not redress Brandywine’s injury, a conclusion that the
R. GUY COLE, JR., Circuit Judge, dissenting. When this majority implicitly ratifies, rests on a misreading of the
lawsuit commenced, adult businesses could be Ordinance. The district court determined, as the City argued,
prohibited—per se or at the whim of local regulators—in the that were we to determine that the Ordinance provides
entire City. As a would-be proprietor of an adult business in insufficient space for adult businesses, we would
the City, Brandywine is a proper party to challenge this automatically nullify the restrictions on adult businesses
scheme, and the suit survives the City’s subsequent optional operating in zone I-2, allowing adult businesses full access to
and reversible amendment of the Ordinance. Because that zone and leaving all other zones’ restrictions unscathed.
Article III permits our review of Brandywine’s claims, and The Ordinance provides no such directions. It does provide
because these claims establish that the challenged Ordinance that “[s]hould any section or provisions of the regulations be,
violates the First Amendment, I respectfully dissent. for any reason, held void or invalid, it shall not affect any
other section or provision thereof which is not itself void or
A. Standing invalid.” Thus, if Brandywine’s challenge could be separated
into component parts, we could save the Ordinance by
In holding that Brandywine lacks standing, the majority jettisoning only the offending part. But under Kentucky law,
artificially slices Brandywine’s challenge into component which governs whether we may sever a problem provision
parts—separating its challenge to the Ordinance as a whole from its neighbors, see City of Lakewood v. Plain Dealer
into discrete challenges to the respective regulations Publ’g Co., 486 U.S. 750, 772 (1988), a statute cannot simply
governing zones B-3 and I-2. But we must evaluate the city’s shed its lone unconstitutional provision when—as is the case
regulatory scheme in the aggregate: the First Amendment here—all of the statute’s parts are inseparably connected. See
requires an adequate opportunity for adult businesses to KRS § 446.090. As I explained above, the First Amendment
operate in a given city, not in any particular zone. A total ban doctrine governing this challenge demands that we view the
in either zone would be perfectly legal so long as the other Ordinance in the aggregate. If the Ordinance provides
provided sufficient space for adult businesses. See City of inadequate space for adult businesses, we must invalidate the
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). whole thing.
Moreover, that a total ban in one zone is constitutional in
some circumstances does not mean that it would be Brandywine’s challenge, including its requests for both
constitutional alongside a total ban or other undue restrictions monetary and injunctive relief, necessarily engulfs the entire
in all other zones. See, e.g., Schad v. Borough of Mount Ordinance. Brandywine’s lack of connection with zone I-
Ephraim, 452 U.S. 61, 75-76 (1981); Christy v. City of Ann 2—the supposed gap in its standing—is a red herring.
Arbor, 824 F.2d 489, 492 (6th Cir. 1987). Brandywine
argues—consistent with the First Amendment’s approach to
the regulation of adult businesses—that given zone I-2's
restrictions, the restrictions on zone B-3 are unconstitutional.
No. 02-5507 Brandywine, Inc., et al. 13 14 Brandywine, Inc., et al. No. 02-5507
v. City of Richmond v. City of Richmond
B. Mootness is no guarantee that MDOC will not change back to its older,
stricter Rule as soon as this action terminates.” Id. at 1035.
The majority’s alternative basis for affirming the dismissal And in Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.
of Brandywine’s request for injunctive relief—that the action 2003) (en banc), cert denied, Snyder v. Rosales-Garcia, 123
is moot—flatly contradicts the Supreme Court and our own S.Ct. 2607 (2003), we rejected the government’s assertion
precedent. Because the City amended the Ordinance (less that an immigrant’s challenge to her detention was mooted by
than a month) after Brandywine filed suit, the City retains the her parole, because the INS had the discretion to return her to
burden of showing that its amendments moot this challenge. custody and the government had “made no . . . promise [that
In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., her parole would continue uninterrupted].” Id. at 397.
528 U.S. 167 (2000), the Supreme Court reaffirmed that “a
defendant claiming that its voluntary compliance moots a case At no point has the City promised that the offending
bears the formidable burden of showing that it is absolutely scheme is gone for good. Short of such an assurance, it
clear the allegedly wrongful behavior could not reasonably be cannot meet its burden under Friends of the Earth. The
expected to occur.” Id. at 190 (emphasis added). The majority’s refusal to hold the City to its burden is at odds with
possibility looms that the City will reenact the prior version both Supreme Court and Sixth Circuit precedent. And it risks
of the Ordinance once this case is dismissed, and the City has producing a cycle of amendment, mootness, and
offered no indication that its most recent amendment is reamendment—the very cycle that mootness doctrine
permanent. And unlike a state or federal legislature, which prohibits.
must massage the esoteric desires of scores of representatives
in two houses, a city council can enact new measures with C. First Amendment
relative ease. Indeed, the record demonstrates how readily
and easily the City can amend the Ordinance: it did so twice Because Article III allows us to consider Brandywine’s
in the five-month period between April 2001 and August First Amendment challenges to the Ordinance, as it existed
2001. when Brandywine filed its complaint, we apply the familiar
standards espoused by the Supreme Court. A total ban on
Yet the majority inverts the burden. According to the adult business receives strict scrutiny; the restriction of such
majority, today’s case is moot because City officials have not businesses to certain areas, however, we analyze as a time,
vowed to restore the offending provisions following place, and manner regulation. Renton, 475 U.S. at 46.
dismissal. But Brandywine does not have to show that the Although the City prohibits adult businesses in zone B-3, it
challenged conduct will occur again; the City must make it permits them in zone I-2. Moreover, a time, place, and
“absolutely clear” that it will not. Thus, in Akers v. manner restriction must be justified without reference to the
McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003), we content of the speech. Here, the ordinance is aimed not at the
considered a challenge to certain regulations promulgated by content of adult businesses per se, but “rather at the
the Michigan Department of Corrections (MDOC), even secondary effects of such theaters on the surrounding
though these regulations had since been repealed. In rejecting community.” Id. at 47 (emphasis in original).
the defendant’s contention that its voluntary repeal mooted
the case, we noted that “as the promulgation of work rules We therefore reach the case’s crux: “whether the
appears to be solely within the discretion of the MDOC, there [Ordinance] is designed to serve a substantial governmental
No. 02-5507 Brandywine, Inc., et al. 15
v. City of Richmond
interest and allows for reasonable alternative avenues of
communication.” Id. at 50. Assuming, for the sake of
argument, that the City’s interest is substantial, the Ordinance
provides for inadequate alternative spaces for adult businesses
to operate. Even in zone I-2, the one place in which the City
purports to allow adult businesses, they would have to meet
the requirements of a “conditional use.” The Ordinance
defines a conditional use as one:
which is essential to or would promote the public health,
safety, or welfare in one or more zones, but which would
impair the integrity and character of the zone in which it
is located, or in adjoining zones, unless restrictions on
location, size, extent and character of the performance
are imposed in addition to those imposed in the zoning
regulation.
When considered in conjunction with the entire Ordinance,
the amorphous criteria that an adult business must satisfy
hardly provide a guarantee that adequate alternative avenues
exist. Cf. Plain Dealer Publ’g Co., 486 U.S. at 769-70
(invalidating restrictions on adult businesses that vest too
much discretion to the government licensors). The First
Amendment requires that the City “refrain from effectively
denying [its citizens] a reasonable opportunity to open and
operate an adult theater within the city.” Renton, 475 U.S. at
54. Under the Ordinance, any adult business that the City
deems inconsistent with “the integrity and character of the
zone” would find itself without any location in the City in
which to operate—a result that the First Amendment
prohibits.
Because I conclude that Brandywine has standing to
challenge the Ordinance, that its challenge is not moot, and
that the Ordinance violates the First Amendment, I would
reverse the judgment of the district court and remand for the
issuance of an injunction and the computation of
Brandywine’s damages. I respectfully dissent.