Opinion
Case No. 6:04-cv-1824-JA-KRS.
September 12, 2005
ORDER
Plaintiff Rameses, Inc. ("Plaintiff") operates "Cleo's," an erotic dancing establishment in Orlando, Florida, which is licensed by Orange County ("the County") to engage in the business of adult entertainment. Plaintiff brought the instant action seeking declarative and injunctive relief to prevent the County from enforcing certain provisions of its Adult Entertainment Code. (Orange County, Adult Entertainment Code ("AEC") (2005)). This cause is before the Court on the County's Motion to Dismiss (Doc. 6). For the foregoing reasons, the County's motion must be granted.
I. BACKGROUND
During this past year, members of the County's Metropolitan Bureau of Investigation "arrested numerous patrons and employees" of Cleo's for committing criminal violations. (Doc. 1 ¶ 14). As a result of these arrests, Plaintiff anticipates that the County will suspend or revoke its adult entertainment license pursuant to the AEC's suspension and revocation provisions. (Doc. 1 ¶¶ 9, 14). As of yet, however, the County has neither taken action against Plaintiff nor expressed any intention of doing so.
II. MOTION TO DISMISS STANDARD
To warrant dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, it must be "clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). In determining whether to grant a motion to dismiss, a court must accept all the factual allegations in the complaint as true and consider all reasonable inferences derived therefrom in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1534 (11th Cir. 1994); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994).
III. ANALYSIS
Plaintiff's complaint raises challenges to both the AEC's revocation and suspension provisions as well as two of the AEC's "(substantive) criminal provisions." (Doc. 12 at 3). For slightly different reasons, both "sets of challenges" must be dismissed.
A. THE AEC's SUSPENSION AND REVOCATION PROVISIONS
Plaintiff contends that the AEC's suspension and revocation provisions violate the First, Fifth, and Fourteenth Amendments by: (1) allowing the County "to suspend an adult license based upon an alleged violation of the law (without conviction or any court review)"; (2) allowing the County "to suspend or revoke an adult entertainment license based upon the unilateral actions of an individual defendant who enters a plea of no contest . . . as a matter of convenience in lieu of contesting the criminal charges," thereby imposing "a form of strict or vicarious liability upon the owner or holder of the adult entertainment license"; (3) failing to "provide any time table by which the [C]ounty . . . must initiate and notify the holder of an adult entertainment license that it is seeking to suspend or revoke the license"; (4) allowing the County "to revoke a license based upon so-called `violations' . . . by workers — without conviction or court process"; (5) allowing the County "to revoke an adult entertainment license based upon the conduct of an `operator' . . . without any specific showing of wrongdoing or culpable conduct on the part of the license holder" and without providing the license holder "reasonable notice or an opportunity . . . to remedy the purported criminal conduct"; (6) allowing the County "to unilaterally select (without any independent objective or neutral guidelines) a hearing officer who will determine if a suspension or revocation shall be imposed"; and (7) shifting "the burden of proof to the owner of the establishment to establish that the conduct or acts which form the basis of the suspension or revocation contain a significant expressive element." (Doc. 1 ¶¶ 16-20).
The County contends that these claims must be dismissed for want of ripeness, because it has not yet brought suspension or revocation proceedings against Plaintiff. In response, Plaintiff asserts that, though the County has not yet initiated suspension or revocation proceedings, "Cleo's . . . has a legitimate fear that it is in [the County's] cross hairs and it is this threat which is the cornerstone of ripeness." (Doc. 12, at 9).
The constitutional limitation on the jurisdiction of federal courts "to actual cases or controversies" requires dismissal of claims that not are not "ripe for judicial review." Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir. 2005). "In deciding the ripeness of a claim, [courts must] inquire into 1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration. This inquiry into ripeness ensures that the plaintiff has suffered a sufficient injury to meet Article III's case or controversy requirement[,] . . . [that] the claim is sufficiently mature, and [that] the issues [are] sufficiently defined and concrete, to permit effective decisionmaking by the court." Id. (internal quotations and citations omitted).
Under this standard, Plaintiff's challenges to the AEC's revocation and suspension provisions, standing alone, are not sufficiently ripe for review. Not only has the County not brought suspension or revocation proceedings against Plaintiff, but Plaintiff has failed to provide any basis for its contention that "it is in [the County's] cross hairs." And, although the Plaintiff correctly asserts that the ripeness standard is somewhat relaxed for First Amendment "chilled speech" claims, Plaintiff has failed to indicate how the AEC's suspension and revocation provisions, in and of themselves, have any potential to chill the speech or expression of Cleo's or any other adult entertainment establishments.
A much thornier question is whether Plaintiff might have made out a claim of chilled speech on the basis that the AEC contains unconstitutional criminal provisions, the violation of which could lead to the suspension or revocation of Cleo's adult entertainment license. However, to the extent that Plaintiff intended to raise this type of claim, its viability depends on whether Plaintiff's complaint sufficiently alleged that the AEC's criminal provisions are unconstitutional; as the remainder of this Order explains, Plaintiff's complaint fails in that endeavor.
B. THE AEC'S CRIMINAL PROVISIONS
Plaintiff challenges two criminal provisions in the AEC which make it unlawful to:
Display or expose any specified anatomical area while simulating any specified sexual activity with any other person at the adult entertainment establishment, including with another worker; [or]
* * *
Intentionally touch the clothed or unclothed body of any customer at the adult entertainment establishment, at any point below the waist and above the knee of the person, or to intentionally touch the clothed or unclothed breast of any female person. . . .
AEC §§ 3-129(6) and 3-129(9). Workers who engage in these acts, and operators of adult entertainment establishments who know or have "reason to know, permit, suffer, or allow any worker" to engage in these acts, are subject to "a fine not to exceed five hundred dollars ($500.00) or by imprisonment in the county jail for a term not exceeding sixty (60) days, or by both such fine and imprisonment." AEC §§ 3-129, 3-126 (cross-referencing AEC § 1-9).
Plaintiff raises facial challenges to both of the AEC criminal prohibitions. To make out a cognizable facial challenge, a "plaintiff must demonstrate that the challenged law either `could never be applied in a valid manner' or that, even though it may be validly applied to the plaintiff and others, it nevertheless is so broad that it `may inhibit the constitutionally protected speech of third parties.'" New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984)). "The overbreadth claimant bears the burden of demonstrating, `from the text of [the law] and from actual fact,' that substantial overbreadth exists."Virginia v. Hicks, 539 U.S. 113, 122 (2003) (quoting New York State Club Ass'n, 487 U.S. at 14) (alteration in original). Whether a law suffers from substantial overbreadth is "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).
There is no indication in either Plaintiff's Complaint or in its response in opposition to the County's motion to dismiss that it has brought an as-applied challenge to the AEC criminal provisions. Even assuming that Plaintiff had brought such a claim, Plaintiff's Complaint fails to allege any facts which could form the basis for a reasonable inference that the County has applied the AEC to the workers or operators of Cleo's in an unconstitutional manner.
According to Plaintiff, the AEC criminal provisions are overly broad in that they subject dancers and other workers at Cleo's and other adult establishments to arrest and prosecution for engaging in expression that is protected by the First Amendment. Plaintiff argues, for example, that the AEC's criminal provisions prohibit workers at adult establishments from "intentionally touching a customer between the waist and knee (regardless of whether [the worker] is fully clothed and not performing) even if such touching is incidental, innocuous and non-sexual in nature." (Doc. 1 ¶ 25). Besides subjecting Cleo's workers and operator(s) to arrest and prosecution, Plaintiff asserts that the overbreadth of the AEC's criminal provisions also allows the County to suspend or revoke its adult entertainment license based on arresting or prosecuting individuals for constitutionally protected expression.
Plaintiff's allegations, though perhaps sufficient to show that the AEC criminal provisions suffer from some degree of overbreadth, do not permit a reasonable inference that any such overbreadth is substantial. Indeed, outside of Plaintiff's suggestion that one of the provisions could be used to prosecute an accidental touching of a customer in the area between his or her waist and knee, Plaintiff offers no examples of how the AEC provisions might be applied unconstitutionally. As such, Plaintiff has failed to make out a facial challenge to the provisions.
That said, the Court is not convinced that the Plaintiff is unable to properly raise facial challenges to the AEC criminal provisions. Dismissal of Plaintiff's complaint, therefore, is without prejudice for Plaintiff to refile another complaint.
IV. CONCLUSION
In accordance with the foregoing analysis, it is hereby ORDERED and ADJUDGED that the County's Motion to Dismiss (Doc. 6) is GRANTED, and Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice. Plaintiff may file an amended Complaint on or before Friday, Sept. 30, 2005. DONE and ORDERED.