Fly Fish, Inc. v. City of Cocoa Beach

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 18, 2003
No. 02-14156 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 99-01426-CV-ORL-22A

FLY FISH, INC., a Florida corporation,
d.b.a. Sassy Merlot’s 2,

Plaintiff-Appellant-
Cross-Appellee,

versus

CITY OF COCOA BEACH, a Florida
municipal corporation,

Defendant-Appellee-
Cross-Appellant.

________________________

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

(July 18, 2003)
Before DUBINA, HILL and COX, Circuit Judges.

HILL, Circuit Judge:

Fly Fish, Inc. appeals the entry of summary judgment against it on its First

Amendment challenge to various provisions of the adult entertainment ordinance

of the City of Cocoa Beach, Florida. The City of Cocoa Beach, Florida appeals

the entry of summary judgment against it as to one of the licensing provisions of

that ordinance. For the following reasons, we affirm in part and reverse in part.

I.

The City of Cocoa Beach, Florida (the “City” or “Cocoa”) consists of 4.17

square miles running along the east coast of central Florida in a narrow strip. It is

approximately six miles long. Most of the City is only one mile wide.1 The City

has a population of 13,263 permanent residents and a peak tourist population of

10,000-11,000. It is comprised of a total of 2,672 acres. Of that, 154 acres are

designated and zoned for general commercial use, 954 acres are allotted for single

and multi-family residential use, and approximately one third (900 acres) is

designated for conservation. Currently, there are 1.71 acres on which adult

businesses may legally operate.

1
Although at one point the city is two miles wide, over one-third of the City’s land mass
is less than two thousand feet wide.

2
 The City first enacted an adult entertainment ordinance in 1986. At that

time, there were three adult entertainment establishments in existence. In 1997,

Fly Fish, Inc. (“Fly Fish”) established a club named “Sassy Merlot’s 2" (“Sassy’s”)

at the location of a former dance club that was not an adult entertainment business.

Sassy’s was issued the former club’s license to operate a dance club, but, soon

after it opened, it instituted an “adult entertainment” format, although it did not

fall within the definition of such an establishment as set out in the City’s code.2

In 1999, the City passed a revised adult entertainment ordinance, Ordinance

1204 (the “ordinance” or “1204"), that redefined an adult entertainment

establishment to include one in which the dancers dance for tips or in close

proximity to the patrons. Under Ordinance 1204, Sassy’s effectively became an

adult entertainment establishment, and it applied for an adult entertainment

license.

Ordinance 1204, however, makes only three sites available for adult

businesses. These sites are defined by the legal descriptions of the lots at which

the other three adult entertainment establishments were then operating. Therefore,

2
At the time it instituted this format, the City’s ordinance defined adult entertainment by
the anatomical areas exposed.

3
there was no site available to which Sassy’s could relocate.3 Presumably for this

reason, no license issued. We do not know for sure since the City never formally

denied the application. Instead, the City followed the provisions of Ordinance

1204, which provide that if no action is taken on an application within thirty days,

a license must issue and the applicant is entitled to operate under that “temporary”

license until such time as the City formally acts on the application. Sassy’s has

operated in this fashion until the present time.4

Ordinance 1204 is a three-pronged regulation of adult-entertainment

establishments. First, it regulates conduct, proscribing total nudity on the part of

the employees of such establishments.5 Second, it is a zoning statute, limiting the

location of adult entertainment establishments. Finally, it is a licensing statute,

establishing criteria for the issuance of a business license and imposing a licensing

fee.

3
The only provisions in the City Code that specify the locations of adult businesses are
those contained in Ordinance 1204.
4
The ordinance also requires all non-conforming use of city property to close by
September of 2002. Sassy’s has been granted various extensions, but must close by September 2,
2004, if it remains non-conforming, which, by definition, it must.
5
As is common in adult entertainment ordinances, 1204 defines “nudity” as the exposure
of “specified anatomical areas,” specified as genitalia, buttocks and female breasts. G-strings
and pasties are sufficient to avoid application of the statute.

4
 Fly Fish attacks each prong of Ordinance 1204. First, it argues that as a

regulation of conduct, 1204 unconstitutionally suppresses conduct protected by

the First Amendment. If so, the ordinance is subject to strict scrutiny, and the

district court erred in applying a lesser standard of review. 6

Second, Fly Fish claims that, as a zoning statute, Ordinance 1204 fails to

pass constitutional muster because it provides too few opportunities for adult

entertainment establishments.

Third, Fly Fish contends that the licensing provisions of the ordinance are

unconstitutional because they vest unbridled discretion over the licensing decision

in city officials and impose a licensing fee that constitutes a tax on expressive

conduct.

The district court entered summary judgment for the City on the first two of

Fly Fish’s attacks on the ordinance, as well as the claim that the licensing fee is

unconstitutional. The court entered summary judgment for Fly Fish, however, on

its claim that the ordinance’s licensing provisions grant the City unconstitutional

discretion over the licensing decision. Both parties appealed. We review these

6
Actually, we do not know what level of scrutiny the district court applied to Ordinance
1204 because it summarily dismissed the claim that it was content-based. We assume, however,
that it did not strictly scrutinize the statute without comment.

5
judgments de novo. Calhoun v. Lillenas Publishing, 298 F.3d 1228 (11th Cir.

2002).

II.

1. Ordinance 1204 As a Regulation of Expressive Conduct

Fly Fish claims that Ordinance 1204's prohibition on nudity in adult

entertainment establishments must be strictly scrutinized because it is a content-

based regulation of expressive conduct. If so, the district court erred in not doing

so.

1. Regulations of Expressive Conduct

The Supreme Court has identified three categories of laws that regulate

conduct with an expressive component. In order to determine what level of

scrutiny is due Ordinance 1204, we must first decide into which category it fits.

a) Content-neutral Regulations

First, there are laws of general application that serve purposes unrelated to

the content of expression. These content-neutral laws prohibit an entire class of

conduct, and do not define the regulated conduct with reference to any expressive

content it may have. Such a law is entitled to a deferential, or intermediate, level

of constitutional scrutiny. United States v. O’Brien, 391 U.S. 367, 382 (1968).

6
 A general prohibition of public nudity is a law of general application.

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion). It

prohibits an entire class of conduct, and does not define the regulated conduct with

reference to any expressive component. Id. at 570-571. Therefore, it is content-

neutral on its face. Id.

Nor does the application of the statute to expressive conduct – nude dancing

– render the statute content-based. Id.7 So long as the purpose of the statute is

unrelated to the suppression of the expressive conduct, the statute is content-

neutral. Id. (“The perceived end that [the statute] seeks to address is not erotic

dancing, but public nudity”); see also Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989) (“[I]n determining content neutrality, . . . [t]he government’s purpose

is the controlling consideration”) (emphasis added). A general prohibition of

public nudity, even as applied to nude dancing, therefore, is content-neutral and

reviewed under intermediate level of scrutiny. Barnes, 501 U.S. at 568.8

7
The Supreme Court has recently reaffirmed that nude dancing of the type at issue here is
expressive conduct that falls within the outer ambit of the First Amendment. City of Erie v.
Pap’s A.M., 529 U.S. 277, 289 (2000) (citing Barnes v. Glen Theater, Inc., 501 U.S. 560, 565-
566 (1991) (plurality opinion).
8
Under United States v. O”Brien, 391 U.S. 367, 376-377 (1991) an ordinance satisfies the
First Amendment if it is within the constitutional power of the government to enact; furthers a
substantial government interest that is unrelated to the suppression of free expression; and is no
more restrictive than necessary to further the governmental interest.

7
 Recently, the Court reaffirmed that a ban on public nudity is a content-

neutral law of general application due intermediate scrutiny. City of Erie v. Pap’s

A.M., 529 U.S. 277, 289-290 (2000). In Erie, the Court upheld an ordinance

prohibiting public nudity as applied to nude dancing because the ordinance was a

law of general application, prohibiting the entire class of nude conduct. Id. The

Court rejected the charge that the ordinance was content-based, observing that it

was “a general prohibition on public nudity,” which:

[b]y its terms, . . . regulates conduct alone. It does not target nudity
that contains an erotic message; rather, it bans all public nudity,
regardless of whether that nudity is accompanied by expressive
activity.

Id. at 290.9

b) Content-based Regulations

On the other hand, a law that proscribes or limits conduct precisely because

of its expressive component is content-based. Texas v. Johnson, 491 U.S. 397,

403 (1989). These regulations draw strict scrutiny because they are aimed at the

suppression of free expression. Johnson, 491 U.S. at 403. Under this test, such an

ordinance is presumptively invalid, and, if it suppresses protected speech “because

9
The Court repeatedly referred to the “general” application of Eries’ ordinance, noting
that “Erie’s ordinance is on its face a content-neutral restriction on conduct,” id. at 296, and “it is
worth repeating that Eire’s ordinance is on its face a content-neutral restriction that regulates
conduct, not First Amendment expression,” id. at 298.

8
of disagreement with the message it conveys,” it violates the First Amendment,

absent some compelling state interest in its enforcement. Ward, 491 U.S. at 791.

A law that prohibits nude dancing because of disapproval of its expressive content

is unconstitutional. Barnes, 501 U.S. at 570-571.

c) Content-Based Regulations Treated as Content-Neutral

The Supreme Court has identified a third category of regulation of

expressive conduct. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). These

regulations define the regulated conduct by its expressive content, and, to this

extent, they are “content-based.” Id. at 47. Their purpose, however, is not to ban

the expressive conduct, but merely to establish restrictions on the time, place, and

manner of its presentation. Id. at 46. Although content-based, such a regulation

will be treated as if it were content-neutral if it serves a substantial government

purpose that is unrelated to the suppression of the expressive conduct. Id. at 47-

49.

In the context of adult entertainment, the Court held that this purpose can be

located in combating the harmful secondary effects of that conduct on the

surrounding community. Id. at 49. In Renton, the Court upheld an ordinance that

targeted adult theaters. Id. at 47. The Court rejected the argument that such an

ordinance is necessarily aimed at the content of the films shown there, holding that

9
“[t]he ordinance by its terms is designed to prevent crime, protect the city’s retail

trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality

of [the city’s] neighborhoods, commercial districts, and the quality of urban life,’

not to suppress the expression of unpopular views.” Id. at 48 (quoting

unpublished district court’s opinion in Renton). Thus, although discriminatory,

the ordinance was entitled to be treated as a content-neutral regulation because it

was justified without reference to the content of the regulated conduct. Id.

Under Renton, such a content-based, but treated as content-neutral,

regulation of expressive conduct is entitled to an intermediate level of scrutiny.

Id. at 49. It survives this scrutiny so long as it is designed to serve a substantial

government interest and leaves available ample alternative avenues of

communication. Id. at 50.

2. Ordinance 1204: A Constitutional Orphan?

Ordinance 1204 does not fit neatly into any of these three categories.

Unlike the laws upheld in Barnes and Erie, Ordinance 1204 is not a law of general

application. It prohibits nudity only in adult entertainment establishments. It does

not prohibit public nudity anywhere else in Cocoa Beach.10 Although no worker

in an adult entertainment establishment in Cocoa Beach may appear totally nude,

10
Nor, apparently, does any other City ordinance do so.

10
apparently one may do so at the local Jiffy Mart or in the public library. As a

result, the ordinance bans nudity with reference to the expressive content of that

nudity, and is content-based. See Schultz v. City of Cumberland, 228 F.3d 831,

843 (7th Cir. 2000) (holding a similar ordinance content-based because “the

Ordinance by its plain terms specifically targets erotic expression”).11

Nor does 1204 appear to be a Renton-type of regulation of adult

entertainment. Although it purports to be a mere regulation on the time, place, or

manner of adult entertainment aimed at reducing its secondary effects, as

permitted by Renton, it does not place restrictions on nude dancing in adult

entertainment establishments. It bans it.12

Ordinance 1204 appears to be a discriminatory regulation that expressly

targets and prohibits nude dancing. Neither Barnes nor Erie applied a secondary-

effects rationale to permit a statute to target expressive conduct. In each, a

content-neutral law of general application was upheld because it was justified

without reference to nude dancing.

11
Although Ordinance 1204 bans nudity of any type in an adult entertainment
establishment, this includes the nude dancing that the ordinance by which the ordinance defines
“adult entertainment.” Section 2.5-5 (e).
12
Nor do we think that the fact that one may apparently dance nude elsewhere in the City
transform 1204 into a time, place, or manner regulation. 1204 effectively bans commercial nude
dancing in the City. See Schultz, 228 F.3d at 846.

11
 Nor does Renton permit a statute that targets nude dancing to completely

ban it. 475 U.S. at 46 (The Renton ordinance, like the one in American Mini

Theaters, does not ban adult theaters altogether, but merely provides that such

theaters may not be located within 1,000 feet of any residential zone, single- or

multiple-family dwelling, church, park, or school. The ordinance is therefore

properly analyzed as a form of time, place and manner regulation”); see also City

of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 443 (2002) (“ordinance

warrants intermediate scrutiny only it if it is time, place, and manner regulation

and not a ban”).

Thus, Ordinance 1204 appears to be without constitutional underpinnings.13

At least two courts have invalidated similar ordinances on the grounds that, by

targeting and banning nude dancing, they unconstitutionally suppress protected

speech. Nakatomi Investments, Inc. v. City of Schenectady, 949 F. Supp. 988, 998-

999 (N.D. N.Y. 1997); Books, Inc. v. Pottawattamie County, Iowa, 978 F. Supp.

1247, 1257 (S.D. Iowa 1997); see also Schultz, 228 F.3d at 847-48 (invalidating

13
The Supreme Court recently avoided deciding whether an ordinance that effectively
bans a form of adult entertainment can be constitutional under some other theory. Alameda, 535
U.S. at 443 (Court of Appeals held that city’s prohibition on combination of adult bookstores and
arcades is not effectively a ban and respondents did not petition for review).

12
portion of city ordinance targeting adult entertainment that banned certain

movements and gestures). Fly Fish argues that 1204 is similarly unconstitutional.

We disagree. Although not directly controlling,14 we believe that the

Court’s analysis in Erie effectively forecloses this argument. In rejecting the

dissent’s claim that, as applied to nude dancing, the public nudity ordinance

amounted to an unconstitutional complete ban on expression, the Court reiterated

the distinction it made in Barnes between the means of expression – nudity – and

the message – eroticism. 529 U.S. at 292-293. See also Barnes, 501 U.S. at 571

(“The appearance of people of all shapes, sizes and ages in the nude at a beach, for

example, would convey little if any erotic message”). Rejecting the dissent’s

characterization of the ordinance as a complete ban on the message of nude

dancing, the Court said:

The public nudity ban certainly has the effect of limiting one
particular means of expressing the kind of erotic message being
disseminated at Kandyland. But simply to define what is being
banned as the “message” is to assume the conclusion.

Id. at 293.

14
Erie, of course, directly controls only cases involving general public nudity ordinances.

13
 Although conceding that “there may be cases in which banning the means of

expression so interferes with the message that it essentially bans the message,”

529 U.S. at 293, the Court rejected the contention that Erie was such a case:

[E]ven if Erie’s public nudity ban has some minimal effect on the
erotic message by muting that portion of the expression that occurs
when the last stitch is dropped, the dancers at Kandyland and other
such establishments are free to perform wearing pasties and G-strings.
Any effect on the overall expression is de minimis.

Id. at 294.

If the message of nude dancing is eroticism, then Ordinance 1204 may

properly be characterized as a Renton-type of time, place, or manner regulation. It

does not ban erotic dancing, but rather totally nude dancing in an adult

entertainment establishment. Therefore, it merely regulates the manner of

presentation of the erotic message. It does not ban the message; it only requires

more clothing on the messenger. Therefore, 1204 may be properly characterized

as a time, place, and manner regulation.

This is so even though 1204's prohibition of nudity regulates conduct and is

not a traditional zoning regulation of the type approved by Renton. Erie extends

the secondary effects rationale of Renton beyond its zoning context to the

14
regulation of expressive conduct.15 Under Renton, an ordinance may target adult

entertainment establishments, and the nude dancing that occurs there, if it is aimed

at reducing the negative secondary effects associated with these establishments.16

After Erie, an ordinance may do so by banning totally nude dancing in these

establishments. Thus, Erie makes clear that:

Even if the city thought that nude dancing at clubs like Kandyland
constituted a particularly problematic instance of public nudity, the
regulation is still properly evaluated as a content-neutral restriction
because the interest in combating the secondary effects associated
with those clubs is unrelated to the suppression of the erotic message
conveyed by nude dancing.

Id. at 296.

The City has determined that totally nude dancing in adult entertainment

establishments generates undesirable secondary effects. Under Erie and Renton, it

15
We anticipated this decision in Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993,
th
999 (11 Cir. 1998). In upholding an ordinance that banned nudity in establishments where
alcohol is served, we analogized it to a zoning ordinance. We said, “[j]ust as the cities in Renton,
Young, and International Eateries, [Mobile] seeks, geographically, to separate adult
entertainment establishments from other commercial establishments – in this case, bars – in order
to minimize the secondary effects of that combination.” 140 F.3d at 999 (emphasis added).
16
Although Fly Fish does not claim on appeal that Cocoa failed to make a sufficient
record regarding the secondary effects targeted by Ordinance 1204, the record is replete with
evidence of this legislative purpose. On the contrary, there is no evidence that the City seeks to
suppress the erotic message of nude dancing, except the fact that its ordinance does, minimally,
restrict this message. Erie makes clear that this is not enough. The connection between a
proscription on total nudity in adult-entertainment establishments and suppression of erotic
dancing is not a necessary one. 529 U.S. at 296. It must be established by evidence, which is
lacking in this case.

15
is entitled to combat these effects, so long as it does not ban, but merely regulates

the erotic message. Ordinance 1204 is such an ordinance, and the district court

did not err by not applying a heightened level of scrutiny. 17

2) Ordinance 1204 As A Zoning Statute

Ordinance 1204 also contains zoning provisions regulating the location of

adult entertainment establishments. Under Renton, a zoning ordinance that

restricts the location of adult entertainment establishments must serve a substantial

government interest and “leave open ample alternative avenues of

communication.” 475 U.S. at 50. Fly Fish claims that Ordinance 1204 fails the

second portion of this test because its zoning provisions provide only three sites

for the four existing adult entertainment businesses, and set aside less than 1% of

the City’s acreage for such businesses. Ordinance 1204, § 2-2(a-c). Whether the

sites available for adult businesses under a zoning ordinance provide reasonable

avenues for communicating these businesses’ erotic message is a question of law.

David Vincent, Inc. v. Broward County, Fla., 200 F. 3d 1325, 1335 (11th Cir.

2000).

17
Fly Fish does not contend that the ordinance ban on nudity does not survive
intermediate scrutiny, so we do not reach this issue.

16
 Fly Fish argues for a “bright line test” for this issue. Under this test, a

zoning ordinance that provides fewer that the existing number of sites for adult

businesses would not, as a matter of law, leave open ample alternative channels

for communication of their erotic message.

The Fifth Circuit has explicitly adopted such a test. Lakeland Lounge of

Jackson, Inc. v. City of Jackson, Miss., 973 F.2d 1255 (5th Cir. 1992); Woodall v.

City of El Paso, 959 F.2d 1305 (5th Cir. 1992). Under this test, an ordinance is

constitutional only if “[a]s a matter of arithmetic . . . there are more ‘reasonable’

sites available than businesses with demands for them.” Lakeland, 973 F.2d at

1260.

Other circuits, while not viewing it as a bright line, have placed heavy

emphasis on this “supply and demand” test. Buzzetti v. City of New York, 140

F3d 134, 141 (2d Cir. 1998) (ordinance unconstitutional unless it permits “all the

City’s existing adult establishments to continue to operate in the City, either at

their current sites or at new locations”); North Ave. Novelties, Inc. v. City of

Chicago, 88 F.3d 441, 445 (7th Cir. 1996) (there must be “no evidence that any

person has attempted to open an adult use, but was prevented from doing so by

[the] ordinance”); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524,

1532-33 (9th Cir. 1993) (invalidating adult business ordinance where the total

17
number of adult businesses that could coexist was fewer than the number of adult

businesses already operating at the time the ordinance was enacted); Alexander v.

City of Minneapolis, 928 F.2d 278, 284 n.5 (8th Cir. 1991) (ordinance must provide

“ample opportunity for relocation”); Walnut Properties, Inc. v. City of Whittier,

861 F.2d 1102, 1104 (9th Cir. 1988) (striking down an ordinance that allowed only

three of thirteen adult businesses to continue operating).18

The rationale of this test is obvious. By guaranteeing that the number of

sites available under a new zoning ordinance is not less than the existing sites, the

ordinance does not suppress speech, but merely relocates it, as allowed by Renton.

475 U.S. at 52 (“Cities may regulate adult theaters by dispersing them, . . . or by

concentrating them, as in Renton”). Nothing in Renton indicates that an ordinance

that purports to reduce the harmful secondary effects of protected conduct may do

so by eliminating the protected conduct. Id. at 54 (“[W]e have cautioned against

the enactment of zoning regulations that have ‘the effect of suppressing, or greatly

restricting access to, lawful speech’”) (quoting Young, 427 U.S. at 71, n. 35)). On

the contrary, Renton requires that an adult entertainment ordinance “refrain from

18
The Ninth Circuit recently declined to adopt as a bright line the rule that a zoning
ordinance is constitutional when the number of locations available for such businesses equals or
exceeds the number of existing adult businesses. It declined to do so, however, because it
thought that this rule might not sufficiently protect prospective adult businesses. Young v. City of
Simi Valley, 216 F.3d 807, 822-823 (9th Cir. 2000) (rule insufficient to account for the chilling
effect that an adult use zoning ordinance may have on prospective business owners).

18
effectively denying [adult businesses] a reasonable opportunity to open and

operate an adult theater within the city.” Id. at 54.

Recently, Justice Kennedy highlighted this aspect of Renton. In his

concurrence in Alameda,19 he cautioned us to remember that “a city may not

regulate the secondary effects of speech by suppressing the speech itself.” 535

U.S. at 445.20 The purpose and effect of a zoning ordinance must be to reduce

secondary effects and not to reduce speech. Id. See also Lakeland, 973 F.2d at

1260 (“this ordinance does not reduce the number of establishments that can open

in Jackson, so it does not limit expression”) (citing Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 71 (1981) (ordinance banning nude dancing in American

Mini Theaters distinguished, because it “did not affect the number of adult movie

theaters that could operate in the city”)).

Although we have repeatedly said that whether a zoning ordinance leaves

open ample alternatives for communication must be resolved on a “case-by-case

basis,” David Vincent, 200 F.3d at 1336; Boss Capital, Inc. v. City of Casselberry,

19
Justice Kennedy’s concurrence represented the fifth vote for the plurality opinion, and
thus forms the narrowest ground upon which it rests. Marks v. United States, 430 U.S. 188
(1977).
20
The plurality agreed with this “unobjectionable proposition,” stating that it viewed it as
a “reformulation of the requirement that an ordinance warrants intermediate scrutiny only it if it
is time, place, and manner regulation and not a ban.” 535 U.S. at 443.

19
187 F.3d 1251, 1254 (11th Cir. 1999),21 we have also consistently recognized the

importance of “the correlation of available sites to existing adult businesses.”

David Vincent, id.; see also International Eateries of America, Inc. v. Broward

County, 941 F.2d 1157, 1165 (11th Cir. 1991) (twenty-six sites available for one

existing adult entertainment business). We have cited with approval opinions of

the Ninth and Fifth Circuits holding that adult businesses must be given a

“reasonable opportunity to relocate” and that “the number of sites available for

adult businesses under the new zoning regime must be greater than or equal to the

number of adult businesses in existence at the time the new zoning regime takes

effect.” David Vincent, 200 F.3d at 1337 n.17 (citing Topanga, 989 F.2d at 1532-

33 and Woodall, 49 F.3d at 1126). In no case have we upheld a zoning ordinance

that provides fewer locations than there are presently operating adult

establishments.

At least two district courts in this circuit have applied the supply and

demand test to invalidate zoning ordinances providing fewer than formerly

21
Factors to be considered include the community’s population and size, the acreage
available to adult businesses as a percentage of the overall size, the location of available sites, the
number of adult businesses already in existence, and the number of adult businesses wanting to
operate in the community in the future.” Boss Capital, 187 F.3d at 1254. On remand in Boss
Capital, the district court upheld the zoning ordinance in part because it provided five sites for
three existing adult businesses and one new applicant. 2002 WL 31475217 (M.D. Fla. January
31, 2002).

20
available sites for adult entertainment. University Books and Videos, Inc. v.

Miami-Dade County, 132 F. Supp. 2d 1008 (S.D. Fla. 2001); Purple Onion, Inc. v.

Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981). In Purple Onion, the Georgia court

invalidated Atlanta’s adult entertainment zoning ordinance because it “squeezed”

out of business two-thirds of the existing establishments. 511 F. Supp. at 1224.

Although recognizing that “Georgia law permits municipalities to terminate, over

time, pre-existing nonconforming uses,” the district court held that “such

ordinances should be carefully scrutinized where First Amendment interests are

affected.” Id. Similarly, in University Books, the district court rejected a zoning

ordinance that provided no more than a dozen locations for thirty-nine existing

adult entertainment establishments. 132 F. Supp. at 1015.

A third district court in this circuit invalidated a zoning ordinance that

curtailed all future access to the adult entertainment business. Bayside

Enterprises, Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. 1978). The court

characterized the zoning plan as “for all practical purposes, a total ban on the

establishment of new adult bookstores or movie houses.” Id. at 702.

Consequently, according to the court, “the suppressive effects of the zoning

scheme are readily apparent since, aside from those who presently do so, no one

21
will be allowed a forum through which to disseminate sexually explicit . . . forms

of expression.” Id. at 703.22

Though we do not today adopt a bright line rule that a zoning ordinance that

does not provide sufficient sites for the relocation of all existing adult

entertainment establishments is unconstitutional, we conclude that this factor is

dispositive in this case. Three adult entertainment establishments have operated in

Cocoa for over twenty years. Sassy’s has operated for over six years. When it

opened in 1997, it offered nude dancing, but, since its dancers covered the

anatomical parts specified by Cocoa’s prior adult entertainment ordinance as

defining nude dancing, the ordinance did not apply to it and the club was a

conforming use. In 1999, the City amended its Adult Entertainment Ordinance to

broaden the definition of adult business to include dancing for tips. This

amendment effectively made Sassy’s an adult business for licensing and zoning

purposes.

Additionally, prior to 1999, all of Cocoa’s existing adult businesses were

nonconforming uses. They were non-conforming because none of them could

22
Recently, we recognized without deciding that a zoning ordinance that would require
the closure of a previously conforming adult business might raise First Amendment issues about
a statute that otherwise survives time, place, and manner scrutiny. Ranch House, Inc. v.
Amerson, 238 F.3d 1273, 1287 (11th Cir. 2001).

22
meet the City’s separation requirements from “sensitive uses.” Following the

enactment of Ordinance 1204, the City eliminated the protection of

nonconforming use status and instead required all nonconforming businesses to

close after September 2002.

The City also abandoned its use of the conventional zoning provisions

separating adult businesses from other commercial venues, and instead specified

three lots by their metes and bounds legal description as the only lawful sites for

adult entertainment establishments. These three sites were (and are) completely

occupied by the other three adult entertainment establishments in Cocoa. As a

result of these events, the City’s 1999 zoning ordinance provided only three sites

for four lawfully existing adult entertainment establishments.

Instead of leaving open ample alternative means of communication for

Sassy’s erotic message, the actions taken by Cocoa have effectively zoned Sassy’s

out of existence.23 Furthermore, if enforced, the new ordinance would reduce the

23
The City concedes that the “deception” of Fly Fish in not informing it that Sassy’s
would offer nearly nude dancing “ultimately contributed to the City passing the amended adult
entertainment ordinance at issue, in 1999"). Red Brief at 14. Although it is clear that Fly Fish
did not inform the City of its intent, it is equally clear that the nearly nude dancing it offered did
not constitute “adult entertainment” as defined by the City’s then applicable zoning ordinance.
We are mindful of Justice Powell’s caution in Young v. American Mini Theaters, Inc., 427 U.S.
50, 84 (1976), that “courts must be alert to the possibility of direct rather than incidental effect of
zoning on expression, and especially to the possibility of using the power to zone as a pretext to
suppressing expression.”

23
number of adult entertainment establishments by 25% in a town that has supported

four establishments for many years. Neither of these results meets the Renton test.

See D.H.L. Associates, Inc. V. O’Gorman, 199 F.3d 50, 60 (1st Cir. 1999)

(establishment that “lawfully offered adult entertainment in [the city] since before

the enactment of the 1987 zoning ordinance . . . has a right to continue operating

despite the fact that it is not located in the [designated] zone”); Ebel v. City of

Corona, 767 F. 2d 635, 639 (zoning ordinance that did not provide alternate site

for existing business unconstitutional).

Nor does our review of any of the other relevant factors, including the less

than 1% of the city’s total acreage remaining available to adult businesses, militate

in favor of a holding that the ordinance leaves open ample alternative avenues of

communication for the regulated, but protected, message. Accordingly, we hold

the zoning provision of Ordinance 1204 unconstitutional.

3) Ordinance 1204's Licensing Provisions

The district court held the licensing provisions of Ordinance 1204

unconstitutional because they vest unfettered discretion in the City to deny a

license and impose no time restriction on this decision. The district court upheld

the ordinance’s licensing fee. The parties filed cross-appeals on these issues.

1. The Licensing Process

24
 Ordinance 1204 provides that the City may deny an applicant a license if

“the granting of the application would violate either a statue or ordinance or an

order from a Court of law that effectively prohibits the applicant from obtaining an

adult entertainment establishment license,” or if the applicant fails to comply with

Florida law regarding corporations, partnerships, or fictitious names. Ordinance

1204, §§ 2.5-12(c)(1)(E) & (F). Furthermore, the ordinance does not require the

City to act on an application within a prescribed time period, providing only that,

if the City fails to act within thirty days, a license to operate pending that decision

must be issued. Ordinance 1204, § 2.5-12(a).

The district court held that these provisions amounted to an unconstitutional

prior restraint upon protected expression.24 We agree.

“[A] law subjecting the exercise of First Amendment freedoms to the prior

restraint of a license, without narrow, objective, and definite standards to guide the

licensing authority, is unconstitutional.” Shuttlesworth v. County of Birmingham,

394 U.S. 147, 150-51 (1969). See also Lakewood v. Plain Dealer Pub. Co., 486

U.S. 750, 757 (1988). We have previously invalidated such statutes, holding:

24
We note that there is no showing in the record that §§ 2.5-12(c)(1)(E) & (F) were
applied to deny Fly Fish an adult entertainment license. Therefore, the challenge to the ordinance
must be on its face. Although facial challenges to legislation are disfavored, they are permitted
where the claim is that a licensing scheme vests unbridled discretion in the decision maker or that
the regulation is overbroad. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (citing City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, and n. 15 (1984)).

25
 [S]tatutes may not give public officials “unbridled” discretion to deny
permission to engage in constitutionally protected expression. This
implies that some measure of discretion is acceptable, but . . .
virtually any amount of discretion beyond the merely ministerial is
suspect.

Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1362 (11th Cir.

1999) (citations omitted).

Ordinance 1204 exceeds the limits of permissible “ministerial discretion.”

Its provisions permit city officials to decide which statutes or ordinances apply,

whether the applicant has violated those laws, and whether they “effectively”

prohibit the applicant from obtaining a license. In striking down a similar

licensing scheme, we held:

[T]he decision of which ordinances apply, and whether such
ordinances have been violated in any given case are decisions that
[the ordinance] leaves to the judgment of the city clerk and city
commission. City officials thus retain considerable discretion to find
ordinance violations, and consequently to deny licenses.

Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675 (11th Cir. 1984).

As in Hallandale, the judgments authorized by the provisions of Ordinance 1204

cannot be reasonably characterized as simply ministerial.

The ordinance also permits the City unconstitutionally to deny an adult

entertainment license by failing to act on an application. See Freedman v.

Maryland, 380 U.S. 51, 59 (1965) (Constitution requires limitation on the time

26
within which licensing decision is made); FW/PBS, Inc. v. City of Dallas, 493 U.S.

215 (1990) (licensing officials required to make prompt decisions);25 Artistic

Entertainment, Inc. v. City of Warner Robbins, 233 F.3d 1306, 1310-1311 (11th

Cir. 2000). Although the ordinance requires a decision on a adult entertainment

license application within thirty days, it also permits the establishment whose

application is not so resolved to open, conditioned on the ultimate licensing

decision of the City. Effectively, this gives the City an unlimited length of time to

make the application decision. We have previously held such a conditional right

to be an unconstitutional prior restraint. Lady J. Lingerie, 176 F.3d at 1363. We

said there:

Does it matter that an applicant may begin operating while the
[zoning] board is still considering its application? We think not. The
ordinance only permits applicants to operate conditionally. Once the
board denies an application for an exception, the applicant must close
its doors. A conditional exception is no exception at all.

Id.

25
We do not agree with the City that Thomas v. Chicago Park Dist., 534 U.S. 316, 322
(2002), in any way altered the Freedman and FW/PBS requirements for content-based licensing
provisions targeting adult entertainment establishments. See Thomas, 534 U.S. at 322 n.2
(distinguishing licensing schemes that target sexually explicit speech from its public forum
analysis of a content-neutral regulation); Encore Videos, Inc. v. City of San Antonio, F.3d ,
2003 WL 1964188 (5th Cir. April 29, 2003) (relevance of FW/PBS to licensing schemes for adult
entertainment establishments unaffected by Thomas’ public forum analysis).

27
 In so far as Ordinance 1204 permits city officials excessive discretion in

making the licensing decision and an indefinite period of time within which to

make that decision, we hold that these provisions are unconstitutional.26

2. The Licensing Fee

Finally, Fly Fish contends that the City may not charge a licensing fee that

constitutes a tax on the exercise of First Amendment protected expressive conduct.

See Murdock v. Pennsylvania, 319 U.S. 105, 113-14 (1943); Cox v. New

Hampshire, 312 U.S. 569, 577 (1941). Under Murdock and Cox, when core First

Amendment freedoms are made subject to a licensing scheme, only revenue-

neutral fees may be imposed so that government is not charging for the privilege

of exercising a constitutional right. Id. See also Sentinel Communications v.

Watts, 936 F.2d 1189, 1205 (11th Cir. 1991) (government may not profit from

imposing revenue-raising fees on exercise of First Amendment rights).

Furthermore, it is the government’s burden to demonstrate that its licensing fee is

reasonably related to recoupment of the costs of administering the licensing

program. Id.

26
Fly Fish does not contest the district court’s holding that these provisions are severable
from the remainder of the ordinance’s licensing provisions.

28
 The City contends that these cases do not apply to the fee at issue here,

because adult entertainment – nude dancing – is not a “core” First Amendment

freedom and does not enjoy more than “marginal” constitutional protection. The

Eighth Circuit has endorsed this view. Jakes, Lt’d., Inc., v. City of Coates, 284

F.3d 884, 890-891 (8th Cir. 2002) (Murdock and Cox restrictions on licensing fee

do not apply to nude dancing).

The district court did not discuss this issue, upholding the fee without

comment. We cannot do the same.

Although we have not previously done so, at least one other circuit court

and many district courts, including one in this circuit, have held that Cox and

Murdock do apply to licensing fees on adult entertainment. Deja Vu of Nashville,

Inc. v. Nashville, 274 F.3d 377, 395 (6th Cir. 2001); Kentucky Restaurant

Concepts, Inc. v. City of Louisville, Jefferson County, Ky., 209 F. Supp. 2d 672,

691-692 (W.D. Ky. 2002); AAK, Inc. v. City of Woonsocket, 830 F. Supp. 99, 105

(D.R.I. 1993); Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1574

(M.D. Tenn. 1989); Bayside Enterprises, Inc. v. Carson, 450 F. Supp. 696, 704-

705 (M.D. Fla. 1978).

We agree. Although nude dancing may be at the “outer perimeter” of the

First Amendment’s protection, the Supreme Court has never suggested that it is

29
not protected by the First Amendment. On the contrary, Erie recently specifically

reaffirmed that it is so protected. 529 U.S. at 289. The Court made clear that a law

aimed at suppressing this protected conduct would violate the First Amendment.

Id.

Thus, we find no support in Erie for the Eighth Circuit’s conclusion that

nude dancing is “‘only marginally’ protected.” Jakes, 284 F.3d at 891. In fact, the

presence of quotation marks around this phrase in Jakes indicates that the court

thought it was quoting Barnes. What the Supreme Court actually said in Barnes

was that “nude dancing of the kind sought to be performed here is expressive

conduct within the outer perimeters of the First Amendment, though we view it as

only marginally so.” Whether at the core or at the margin, a central tenet of

Barnes is that, as expressive conduct protected by the First Amendment,

government may not ban nude dancing.27 If government may not ban nude

dancing, we fail to see how it may tax that activity without constitutional limit.

See Murdock, 319 U.S. at 113-14; Cox, 312 U.S. at 577.

27
It may, however, be restricted as an incident of a lawful ban on public nudity. 501 U.S.
at 571.

30
 Accordingly, we hold today that a licensing fee on adult entertainment

establishments is controlled by Cox and Murdock and must be reasonably related

to recouping the costs of administering the licensing program.

Having so decided, it is the City’s burden to establish that its licensing fee is

justified by the cost of processing the application. Id. See also Bayside

Enterprises, 450 F. Supp. at 704-705. The record made by the City in this case is

wholly inadequate to make such a showing. The City concedes that it has

conducted no real accounting of the costs of administering its licensing program.

Instead, the City argues that the $5000 ($1250 x 4 adult businesses) it collects to

administer and enforce its licensing program is reasonable as a matter of law. We

disagree. In fact, this seems a substantial amount to administer a program that

routinely reapproves the three twenty-year old businesses that the ordinance

allows. Absent a record sufficient to support the City’s claim that its licensing fee

is constitutionally reasonable, we hold that the present fee is unconstitutional.

III.

For the foregoing reasons, we hold that Ordinance 1204's prohibition on

nudity in adult entertainment establishments is a constitutional exercise of the

City’s police power to combat the secondary effects of nude dancing. Section 2-2

(a-c), which permit adult entertainment establishments only at three specified

31
locations, unconstitutionally fails to provide ample alternative means of

communication for the four existing such businesses. Sections 2.5-12(a) (c)(1)(E)

& (F) vest unbridled discretion over the licensing process in city officials and are,

for that reason, unconstitutional. The licensing fee imposed by Section 2.5-14 is

unconstitutional because it must be reasonably related to the costs of administering

the licensing program and the City failed to establish this fact.

The judgment of the district court is AFFIRMED IN PART and

REVERSED IN PART. The case is remanded to the district court for further

proceedings in accordance with this opinion.

32