Hugh Johnson Enterprises, Inc. v. City of Winter Park

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 9, 2007
No. 06-15817 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 06-01402-CV-ORL-31-JGG

HUGH JOHNSON ENTERPRISES, INC.,
doing business as Club Harem,

Plaintiff-Appellant,

versus

CITY OF WINTER PARK, FLORIDA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(April 9, 2007)

Before TJOFLAT, BIRCH and HULL, Circuit Judges.

PER CURIAM:

Hugh Johnson Enterprises, Inc., d/b/a Club Harem, appeals the dismissal of
its complaint as not being ripe for adjudication and lacking subject-matter

jurisdiction. We AFFIRM.

I. BACKGROUND

Club Harem, owned and operated by Hugh Johnson Enterprises, Inc., is the

only licensed adult-entertainment establishment in Winter Park, Florida. The

property on which the club is located has been used for adult entertainment, non-

obscene erotic dancing, for approximately thirty years. Previously, Club Harem

was licensed by Orange County and operated under its adult-entertainment code.

In 2003, the City of Winter Park annexed the property on which Club Harem is

located and other properties on Lee Road west to Interstate 4.

On March 17, 2006, Club Harem was raided by Winter Park police. Various

arrests of patrons and employees occurred. Thereafter, Club Harem’s attorney

contacted the attorney for the City of Winter Park to ascertain whether the city was

contemplating or intending to initiate licensing penalties against the nightclub.

Following requests for documents, counsel for Club Harem learned that (1) at a

meeting at Winter Park police headquarters on December 22, 2005, a detective had

stated that the city would like to prevent Club Harem from doing future business

by having its license revoked, (2) a document instructed that a determination of

whether Club Harem’s city occupational license could be revoked be made, and (3)

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a response letter dated September 5, 2006, from the assistant city attorney to Club

Harem’s counsel’s letter asking if the city intended to pursue a licensing action

against the nightclub, states in pertinent part:

Please be advised that there is no pending proceeding to revoke Club
Harem’s license. However, the City of Winter Park will continue to
seek to enforce all of its laws, ordinances, or regulations against any
party who appears to be in violation of them.
As such, if Club Harem is in violation of any of the City of
Winter Park’s laws, ordinances, or regulations, the City of Winter
Park reserves all of its rights to take the appropriate enforcement
action.

R1-1 at Tab C (emphasis added). Rather than face the loss of its license under an

allegedly unconstitutional ordinance, Club Harem sought a declaratory judgment

and injunction, which would decide that the Winter Park Adult Entertainment

Code, sections 14-50 (Suspension) and 14-51 (Revocation), are unconstitutional

and unenforceable. The district judge granted Winter Park’s motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6) and concluded that Club Harem’s

action was not ripe for adjudication and that the court lacked subject-matter

jurisdiction. This appeal ensued.

II. DISCUSSION

We review the granting of a motion to dismiss under Rule 12(b)(6) de novo

and apply the same legal standard used by the district court. Hoffman-Pugh v.

Ramsey, 312 F.3d 1222, 1225 (11 th Cir. 2002). “‘When considering a motion to

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dismiss, all facts set forth in the plaintiff’s complaint are to be accepted as true and

the court limits its consideration to the pleadings and exhibits attached thereto.’”

Thaeter v. Palm Beach County Sheriff ’s Office, 449 F.3d 1342, 1352 (11 th Cir.

2006) (citation omitted). Based on the facts as stated in the complaint and attached

exhibits, the threshold decision is ripeness.

The United States Constitution limits the jurisdiction of federal courts by

permitting them to consider only disputes that rise to the level of being “Cases” or

“Controversies.” U.S. Const. art. III, § 2; National Adver. Co. v. City of Miami,

402 F.3d 1335, 1338 (11 th Cir. 2005) (per curiam) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2136 (1992)), cert. denied, __

U.S.__, 126 S.Ct. 1318 (2006). “The ripeness doctrine protects federal courts from

engaging in speculation or wasting their resources through the review of potential

or abstract disputes.” Digital Properties, Inc. v. City of Plantation, 121 F.3d 586,

589 (11 th Cir. 1997). The two-step “ripeness inquiry requires a determination of

(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties

of withholding court consideration. Id. The court must determine “‘whether there

is sufficient injury to meet Article III’s requirement of a case or controversy and, if

so, whether the claim is sufficiently mature, and the issues sufficiently defined and

concrete, to permit effective decisionmaking by the court.’” Id. (citation omitted).

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 The plaintiff corporation in Digital Properties sought to open an adult book

and video store, although Digital had obtained prior legal advice that the municipal

zoning code did not allow adult book and video stores anywhere in the city. Based

on the rationale that the restriction made the zoning code unconstitutional and

unenforceable, Digital filed in federal court a case challenging the municipal

zoning scheme as unconstitutional. The city filed a motion to dismiss for lack of

subject-matter jurisdiction under the ripeness doctrine, and the district judge

granted the motion in part because Digital’s “rush to the courthouse was

premature.” Id.

On appeal, we concluded that Digital had failed to present a ripe claim for

review, because it did not pursue its claim with the requisite diligence to show that

a mature claim or controversy existed. Id. at 590. We reasoned “that Digital’s

presumption of constitutional infirmity bred impatience and prompted it to file an

unripe claim,” when the ripeness doctrine requires a formalized decision from a

governmental authority, “and its effects [must be] felt in a concrete way by the

challenging parties.” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 135, 148-49,

87 S.Ct. 1507, 1515 (1967)). We explained that “Digital’s impatience precluded

the formation of a concrete case or controversy”; because there was no tangible

controversy, the federal courts were without authority to act. Id. (emphasis added).

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Therefore, we concluded that Digital’s “anticipated belief” that the city would

interpret its code in a way that violated Digital’s rights was insufficient to meet the

ripeness standard; consequently, there was no subject-matter jurisdiction over the

dispute. Id. We have recognized that, to challenge the constitutionality of

government action, a proponent has the obligation to obtain a conclusive and

definitive government decision regarding the alleged unconstitutional application

of the legislation questioned.1 National Adver., 402 F.3d at 1340 (citing Digital

Properties, 121 F.3d at 590).

The Winter Park Adult Entertainment Code, attached to Club Harem’s

complaint, states the procedures for suspension and revocation of an adult

entertainment license in sections 14-50 and 14-51. An adult-entertainment license

may be suspended for thirty (30) days for “three or more violations of article VI of

the Orange County Adult Entertainment Code” within a two-year period, if there is

a conviction. Winter Park Adult Entertainment Code § 14-50(c)(1). After a first

suspension, then another conviction can result in a ninety-day suspension. Id. at §

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The city has argued that Club Harem has confused an occupational license for a
business with an adult-entertainment license. Its contention is that the reference to a business
license in Club Harem’s correspondence with the city’s attorneys, attached as exhibits to its
complaint, means an occupational license rather than an adult-entertainment license. Counsel
for Club Harem refutes this assertion in his reply brief. Reply Br. at 5-6. Because Club Harem
is the only licensed adult entertainment business in Winter Park, we conclude that the business
license that Club Harem is challenging in its complaint for declaratory judgment and injunctive
relief is its license for adult entertainment and not its occupational license required for all
businesses.

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14-50(c)(2). Finally, if a license has been suspended for ninety days, and there is

within two years of the conviction leading to that suspension another conviction,

then the license can be suspended for 180 days. Id. at § 14-50(c)(3). Absent false

information in the application process, an adult-entertainment license can be

revoked only if, within two years of the conviction that led to the 180-day

suspension, there is another conviction. Id. at § 14-51(b)(1).

Club Harem has not alleged that there have been any suspensions or

convictions under the Winter Park Adult Entertainment Code. All that Club

Harem’s complaint alleges is that the City of Winter Park has an inchoate desire to

use the city’s Adult Entertainment Code to revoke Club Harem’s license based on

a comment by a detective of the Winter Park Police Department that he would like

to see the revocation process occur. Absent from the complaint is any allegation

that the city has taken identifiable steps to revoke Club Harem’s license.

Moreover, in response to inquiry by Club Harem’s counsel, the assistant city

attorney responded that no revocation proceeding regarding Club Harem was

pending. Consequently, the city has taken no concrete or cognizable action to

suspend or revoke Club Harem’s license. Because it has suffered no action to

suspend or revoke its license whatsoever from Winter Park through its adult

entertainment ordinance, Club Harem’s challenge to the constitutionality of the

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Winter Park Adult Entertainment Code is premature and unripe for adjudication.

Therefore, the district judge properly dismissed Club Harem’s complaint under

Rule 12(b)(6).

III. CONCLUSION

Club Harem has appealed the dismissal of its complaint challenging the

constitutionality of the Winter Park Adult Entertainment Code. Because the city

has taken no steps to suspend or revoke Club Harem’s adult entertainment license,

Club Harem’s request for preliminary constitutional adjudication of the ordinance

is not ripe, and subject-matter jurisdiction is lacking. Accordingly, the district

judge’s dismissal of Club Harem’s complaint is AFFIRMED.

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