[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10704 OCTOBER 18, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-00965-RWS
JACK GALARDI,
RED EYED INC.,
d.b.a. Crazy Horse Saloon,
WALLEYE, LLC,
MIA LUNA, INC.,
d.b.a. Pink Pony South,
JG & P, LLC,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
versus
CITY OF FOREST PARK,
CORINE DEYTON,
JOHN PARKER,
CHIEF DWAYNE HOBBS,
DEBORAH YOUMANS, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees,
KAREN WILLIAMS, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 18, 2011)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellants owned and operated two former adult entertainment
establishments in the City of Forest Park (“the City”). Both businesses operated as
adult cabarets or nude dance clubs that served alcohol. Appellants appeal the
district court’s order denying them a temporary restraining order and preliminary
injunction that would have prevented the City from enforcing its adult
entertainment ordinance against either club. For the following reasons, we find
that Appellants lack standing to bring this appeal, and accordingly, we dismiss.
Appellants sued the City in April 2009, challenging the City’s 2009 adult
entertainment ordinance as unconstitutional. In March 2010, the City extensively
changed its adult entertainment ordinance and Appellants filed an amended
complaint in October 2010 challenging the revised ordinance (“the Ordinance”).
In November 2010, Appellants filed a motion for a temporary restraining order
and preliminary injunction, seeking to enjoin the City from applying the
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Ordinance to their clubs. In the meantime, on December 22, 2010, the City
refused to renew the Appellants’ adult entertainment licenses for 2011 because the
two clubs were not in conformance with a section of the Ordinance that prohibits
adult entertainment establishments from having private booths and rooms. On
January 13, 2011, the district court denied Appellants’ motion, reasoning that
Appellants were unlikely to prevail on the merits.
The City has filed a motion to dismiss Appellants’ appeal,1 asserting that
Appellants’ buildings still do not conform to the requirements of the Ordinance,
and that Appellants have never challenged the Ordinance’s prohibition on private
booths and rooms. Thus, the City argues that because Appellants no longer have
the right to engage in adult entertainment—for reasons independent of those
challenged on appeal—they have no standing to proceed. We agree.
Standing is a threshold jurisdictional question that we must address before
analyzing the merits of an appellant’s constitutional claims. CAMP Legal Defense
Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006). To establish
standing, Appellants bear the burden of showing: “‘(1) an injury in fact, meaning
an injury that is concrete and particularized, and actual or imminent, (2) a causal
connection between the injury and the causal conduct, and (3) a likelihood that the
1
On May 24, 2011, Appellees filed a similar motion to dismiss before the district court.
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injury will be redressed by a favorable decision.’” Id. (quoting Granite State
Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003)).
Assuming that Appellants have shown that the City’s enactment of the
Ordinance caused them an injury in fact, they cannot establish redressability. To
do so, Appellants must show that it is “likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks omitted). Here, even
if we were to reverse the district court’s order, the Appellants would still be unable
to engage in adult entertainment. The Appellants were denied adult entertainment
licenses based upon a provision in the Ordinance that they have not
challenged—the prohibition on private booths and rooms. A favorable decision
cannot redress Appellants’ alleged injury because the Ordinance required the City
to reject Appellants’ license applications and Appellants have not challenged the
provision of the Ordinance that mandated that rejection. See, e.g., Maverick
Media Grp., Inc. v. Hillsborough Cnty., 528 F.3d 817, 821 (11th Cir. 2008) (per
curiam) (explaining because “the County could have denied [plaintiff’s sign
permit] applications under an alternative, unchallenged provision of its sign
ordinance,” plaintiff’s alleged injury was not redressable by a favorable decision);
KH Outdoor, L.L.C. v. Clay Cnty., 482 F.3d 1299, 1303–04 (11th Cir. 2007)
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(holding that a plaintiff did not have a redressable injury where its sign permit
applications were denied on the basis of one provision in a county’s sign
ordinance but could have been denied on the basis of some alternate, but
unchallenged, regulation).
Moreover, on December 20, 2010, the parties reached an agreement
whereby the City would stay the enforcement of certain provisions of the
Ordinance, not including the ban on private booths and rooms. In exchange,
Appellants stipulated that they would not seek damages incurred during any period
preceding the execution of the stipulation as a result of the City’s adoption or
enforcement of the Ordinance.2 This further strengthens our conclusion that
Appellants’ alleged injury would not be redressed by a favorable decision by the
district court—neither injunctive nor monetary relief would redress Appellants’
alleged injury. And Appellants can not invoke the overbreadth doctrine in an
attempt to get around this limitation. CAMP, 451 F.3d at 1270–71 (explaining that
the overbreadth doctrine is an exception only to the prudential standing
requirement that a plaintiff must assert his own legal rights and interests, rather
than pursuing claims based on the legal rights or interests of others).
2
Appellants also stipulated that they would not seek damages for any acts occurring
between the execution of the stipulation agreement and any time up through and including
January 12, 2011.
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Accordingly, we grant the City’s motion to dismiss, and we vacate and
remand with instructions to dismiss because Appellants lack standing to challenge
the Ordinance.
VACATED and REMANDED WITH INSTRUCTIONS TO DISMISS.
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