ALACHUA RETAIL 51 LLC v. CITY OF ALACHUA

Filing 42

ORDER DENYING 5 MOTION FOR PRELIMINARY INJUNCTION; DENYING 7 Motion for Oral Argument and Evidentiary hearing. Signed by SENIOR JUDGE STEPHAN P MICKLE on 4/17/2012. (jws)

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

ALACHUA RETAIL 51, L.L.C.
Plaintiff,
vs.

Case No. 1:11-CV-00187-SPM-GRJ

THE CITY OF ALACHUA, A Florida
Municipal Corporation,
Defendant.
____________________________________/
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
A. BACKGROUND
Alachua Retail 51, L.L.C., (Plaintiff) is an adult bookstore that sells non-obscene
adult books, DVDs, magazines, and other adult materials to adult customers. (Doc. 38 ¶ 2)
In 2010 Plaintiff leased a retail building located at 15947 N.W. U.S. Highway 441 Alachua,
Florida, for the purpose of selling adult products. (Doc. 38 ¶ 7) Plaintiff applied for an adult
business license, which was ultimately denied by the City of Alachua (Defendant) because of
city Ordinance 11-06. (Doc. 38 ¶ 35) Plaintiff brings a suit against Defendant alleging
Ordinance 11-06 violates Plaintiff’s First Amendment right to free speech.
In 1995 Defendant adopted a number of zoning regulations that imposed location and
operation restrictions on adult bookstores and adult entertainment establishments, and

Page 2 of 11

required owners of these establishments to acquire the proper licenses before they could open
for operation. (Doc. 38 ¶ 9) In July of 2003, this ordinance was challenged on First
Amendment grounds and Defendant amended its land development regulations. (Doc. 38 ¶¶
10-11) To properly amend its regulations Defendant held public hearings, gathered and
studied data on adverse secondary impacts related to adult businesses, and hired the expert
report group Duncan & Associates. (Doc. 38 ¶ 11) On November 17, 2003, Defendant
adopted the new regulations under Ordinance Number 0-04-01 for the purpose of “regulating
the secondary effects of sexually oriented businesses.” (Doc. 38 ¶ 12) This ordinance
allowed sexually oriented businesses to locate “within the same land use and zoning districts
as their non-sexually oriented counterparts” so long as the location was the required
minimum distance from schools, parks, playgrounds, day care centers, religious institutions,
and residential districts. (Doc. 38 ¶ 15, 18)
In October 2010, Plaintiff leased a vacant building within an appropriate commercial
zone near the intersection of Interstate 75 and U.S. Highway 441. (Doc. 38 ¶¶ 19-20)
Plaintiff then submitted a site plan to Defendant so Plaintiff could receive a Certificate of
Land Development Regulations Compliance, and open its business. (Doc. 38 ¶ 21)
Plaintiff’s original plan did not contain a sufficient number of parking requirements for the
size of the store and so Plaintiff’s plan was denied. (Doc. 38 ¶ 23) After a failed first
attempt to amend the plan Plaintiff submitted a revised plan, which Defendant found
constituted a sufficient reduction in the building’s square footage to comply with
Defendant’s regulations. (Doc. 38 ¶¶ 26-27) However, Defendant notified Plaintiff that this
Case No. 1:11-CV-00187-SPM-GRJ

Page 3 of 11

amended plan constituted “development” under Florida law and therefore the property owner
must provide written authorization for the proposed development. (Doc. 38 ¶ 28)
Additionally, Defendant notified Plaintiff that “the City’s Comprehensive Plan” to designate
a “Gateway Activity Center” included the property Plaintiff was currently leasing and that
the plan could change the adult use zoning laws. (Doc. 38 ¶ 29)
On February 28, 2011, Defendant enacted a four-month moratorium on applications
for development within the Gateway Activity Center, where the store Plaintiff leased was
located. (Doc. 38 ¶ 30). The moratorium provided for an administrative mechanism that
allowed landowners to seek an exemption. However, when the Plaintiff’s landlord appealed
his request for an exemption was denied. (Doc. 38 ¶ 31) Then, on May 23, 2011, Defendant
adopted a new ordinance, No. 11-06, which encompassed the property leased by Plaintiff and
prohibited sexually oriented businesses from locating within the Gateway Activity Center.
(Doc. 38 ¶ 33) Ordinance 11-06 stated that its purpose was to “establish a Gateway Activity
Center at the interchange of US 441 and Interstate 75. The intent of establishing this activity
center is to welcome existing and future residents and visitors to the City of Alachua, and to
promote Alachua as an attractive, vibrant, and economically prosperous community.” (Doc.
6 exhibit 7) Additionally, the ordinance stated that its purpose was to maintain property
values within the Gateway Activity Center and to protect the public health, safety, and
welfare of the City of Alachua. (Doc. 6 exhibit 7)
To support the Ordinance, Defendant created a report that discussed negative
secondary effects of sexually oriented businesses. (Doc. 6 exhibit 8 part I) This report cited a
Case No. 1:11-CV-00187-SPM-GRJ

Page 4 of 11

number of major studies from research groups, such as the American Planning Association,
as well as summaries from major cities’ research regarding secondary effects. (Doc. 6
exhibit 8 part I) The conclusions these reports came to were that sexually oriented
businesses are associated with an increase in criminal activity, cause a decrease in property
values for residential and commercial areas, and that the negative impacts of sexually
oriented businesses decrease when these businesses are located at least 1,000 feet from the
other businesses or residential areas. (Doc. 6 exhibit 8 part I)
On June 14, 2011, Plaintiff’s request for a Certificate of Land Development was
denied because Ordinance 11-06 prohibited sexually oriented businesses in the Gateway
Activity Center. (Doc. 38 ¶ 35) Plaintiff claims this Ordinance was adopted as a
content-based restriction on adult expression and therefore is unconstitutional under the First
and Fourteenth Amendments. (Doc. 38 ¶ 39) Defendant claims this Ordinance was adopted
to combat the negative secondary effects associated with sexually oriented businesses, as
well as other types of businesses whose secondary effects may negatively impact the
Gateway Activity Center. Plaintiff requests that this Court grant a preliminary injunction
preventing Defendant from enforcing the prohibitions of Ordinance 11-06 until a trial on the
merits is held. (Doc. 38 ¶ 45)
B. STANDARD OF REVIEW
Preliminary injunctive relief is only proper when the moving party establishes: “(1) it
has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered
unless the injunction issues; (3) the threatened injury to the movant outweighs whatever
Case No. 1:11-CV-00187-SPM-GRJ

Page 5 of 11

damage the proposed injunction may cause the opposing party; and (4) if issued, the
injunction would not be adverse to the public interest.” Siegel v. LePore, 234 F.3d 1163,
1176 (11th Cir. 2000). A preliminary injunction is an “extraordinary and drastic remedy”
and will not be granted unless the movant establishes “the ‘burden of persuasion’ as to each
of the four prerequisites.” Id. citing McDonalds Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir. 1998). “Failure to show any of the four factors is fatal, and the most common
failure is not showing a substantial likelihood of success on the merits. “ Am. Civil Liberties
Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009). If
Plaintiff is unable to prove a “substantial likelihood of success on the merits, we need not
consider the other requirements.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
However, “[a] loss of First Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury” and therefore if Plaintiff can show a
substantial likelihood of success on the merits this Court will grant Plaintiff’s request for a
preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373 (1976).
C. DISCUSSION
In general “[r]easonable regulations of the time, place, and manner of protected
speech, where those regulations are necessary to further significant governmental interests,
are permitted by the First Amendment.” Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 63,
n.18 (1976). An ordinance that does not entirely ban sexually oriented businesses but instead
limits where such businesses may be located should be “analyzed as a form of time, place,
and manner regulation.” See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46
Case No. 1:11-CV-00187-SPM-GRJ

Page 6 of 11

(1986). Time, place, and manner regulations are evaluated under a three-part test
established by the Supreme Court in City of Renton. Daytona Grand, Inc. v. City of Daytona
Beach, Fla., 490 F.3d 860, 870 (11th Cir. 2007). The Eleventh Circuit has summarized the
test this way:
[F]irst, the court must determine whether the ordinance constitutes an
invalid total ban or merely a time, place, and manner regulation; second, if
the ordinance is determined to be a time, place, and manner regulation, the
court must decide whether the ordinance should be subject to strict or
intermediate scrutiny; and third, if the ordinance is held to be subject to
intermediate scrutiny, the court must determine whether it is designed to
serve a substantial government interest and allows for reasonable
alternative channels of communication.
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., Fla., 337 F.3d 1251, 1264 (11th
Cir. 2003). In the present case, Ordinance 11-06 does not constitute a total ban on sexually
oriented business but rather is a time, place or manner regulation. Therefore, since the first
prong of the test is satisfied this Court must determine whether Ordinance 11-06 should be
subject to strict or intermediate scrutiny, and if the ordinance is subject to intermediate
scrutiny, whether it serves a substantial government interest and provides for alternative
channels of communication.
I. LEVEL OF SCRUTINY
Regulations enacted with the purpose of restraining speech are reviewed under strict
scrutiny and “presumptively violate the First Amendment.” City of Renton, 475 U.S. at 47.
Regulations that are “‘content neutral’ time, place, and manner regulations are acceptable so
long as they are designed to serve a substantial governmental interest . . . .” Id. The question
Case No. 1:11-CV-00187-SPM-GRJ

Page 7 of 11

is whether Defendant’s “predominate concern” in passing the ordinance was to prevent the
secondary effects of sexually oriented businesses, or to restrict the adult content of the
businesses. Id. The Court may look to objective materials, such as the text of the law, the
preamble, legislative history, legislative findings, and studies and information relied upon, to
determine the legislative concern. Zibtluda, LLC v. Gwinnett County, Ga., 411 F.3d 1278,
1288 (11th Cir. 2008). The subjective motivations of the legislators are not material to the
inquiry since courts should not strike down “the exercise of lawful power on the assumption
that a wrongful purpose or motive has caused the power to be exerted.” United States v.
O’Brien, 391 U.S. 367, 383 (1968).
In City of Renton the defendant city passed an ordinance “designed to prevent crime,
protect the city’s retail trade, maintain property values, and generally ‘protect[t] and
preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and quality of
urban life,’ not to suppress the expression of unpopular views.” Id. at 48. The Court
observed that this was not a content based regulation because “if [the city] had been
concerned with restricting the message purveyed by adult theaters, it would have tried to
close them or restrict their number rather than circumscribe their choice as to location.” Id.
quoting Am. Mini Theatres Inc., 427 U.S. at 82, n.4. The Court found that “zoning
ordinances designed to combat the undesirable secondary effect of [adult] businesses are to
be reviewed under the standards applicable to ‘content neutral’ time, place, and manner
regulations.” Id. Therefore, when an ordinance is adopted to prevent harmful secondary
effects of adult businesses and not to “suppress the expression of unpopular views”
Case No. 1:11-CV-00187-SPM-GRJ

Page 8 of 11

intermediate scrutiny should apply. Id. at 48.
In the present case Ordinance 11-06 was passed, in part, to maintain and enhance the
property values of the area and to protect the public health, safety, and welfare of the city.
(Doc. 6 exhibit 8) The report made in support of the ordinance mainly focused on the
negative secondary effects of sexually oriented businesses and referenced numerous studies
to show the effect these businesses had on the surrounding areas. (Doc. 6 exhibit 9) The
report concluded that sexually oriented businesses can have a negative impact on the value of
surrounding property and can increase crime rates within the area. (Doc. 6 exhibit 9) The
purpose of Ordinance 11-06 was to prevent these secondary effects, to protect the
surrounding area, and to present the city as an “economically prosperous community.” Since
the “predominate concern” of Defendant was to prevent the harmful secondary effects of an
adult business and not to restrict the content of these businesses, this Court will subject
Ordinance 11-06 to intermediate scrutiny.
II. SUBSTANTIAL GOVERNMENTAL INTEREST
A city may rely on “any evidence that is ‘reasonably believed to be relevant’ for
demonstrating a connection between speech and a substantial, independent government
interest.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002). Once that
evidence is introduced, if the plaintiff does not cast doubt on the city’s evidence then the city
has met its burden to show a substantial governmental interest. Id. However, if the plaintiff
does cast doubt on the evidence used to justify the ordinance then the burden shifts back to
the city to provide evidence that supports its rationale for the ordinance. Id. To support its
Case No. 1:11-CV-00187-SPM-GRJ

Page 9 of 11

rationale for an ordinance, a city must be given “a reasonable opportunity to experiment with
solutions” to address the negative secondary effects it believes will come from the protected
speech. Young, 427 U.S. at 71. It only needs to appeal to “common sense” to show the
ordinance will successfully deal with the stated secondary effects and the city does not need
to provide empirical data to show the ordinance will be effective. City of Los Angeles, 535
U.S. at 439. The Supreme Court in City of Los Angeles specifically stated that it “refused to
set . . . a high bar for municipalities that want to address merely the secondary effects of
protected speech.” Id.
In the present case Defendant has met its burden to establish a substantial
governmental interest. Defendant’s report in support of the amendment cited to numerous
studies done by different cities and organizations that pointed to the negative secondary
effects of sexually oriented businesses. Plaintiff challenges the studies Defendant relied upon
as not supporting the rationale for prohibiting adult businesses in the Gateway Activity
Center. However, all that is required of Defendant is to show it relied upon evidence that is
“reasonably believed to be relevant to the secondary effects that [Defendant] seek[s] to
address.” Id. at 442. The reports relied upon by Defendant show increased crime rates, and
depreciation of property values in the areas surrounding sexually oriented businesses.
Plaintiff’s memorandum in favor of a preliminary injunction states that Plaintiff will
attempt to undermine the reports relied upon by Defendant, but Plaintiff does not disclose
what this evidence is. The burden is upon Plaintiff to show that there is a genuine issue of
material fact to justify an evidentiary hearing on this issue. McDonalds Corp. v. Robertson,
Case No. 1:11-CV-00187-SPM-GRJ

Page 10 of 11

147 F.3d 1301, 1311-13 (11th Cir. 1998) (evidentiary hearing for preliminary injunction not
needed where material facts are not in dispute). Plaintiff has not met this burden. Plaintiff has
not demonstrated that it has any evidence that the Court could rely upon to find these reports
are not reasonably relevant to the secondary effects Defendant is addressing. Defendant has
met its burden to show a substantial governmental interest exists. Plaintiff has failed to
demonstrate what evidence it has to cast doubt about this matter so as to require an
evidentiary hearing at this time.1
III. ALTERNATIVE AVENUES
“A new zoning regime must leave adult businesses with a ‘reasonable opportunity to
relocate,’ and ‘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.” Daytona Grand, Inc., 490 F.3d at 870.
In the present case, Ordinance 11-06 does not ban sexually oriented businesses from
the City of Alachua but instead prohibits them from locating in the Gateway Activity Center.
Defendant lists at least 25 locations that are vacant and permissible under local zoning laws
for sexually oriented businesses to locate. (Doc. 17 exhibit 3) These alternative locations do
not have to be “ideal” and “simply because adult businesses ‘must fend for themselves in the
real estate market’” does not mean a violation of the First Amendment has occurred. Id. All

1

The Court is willing to reconsider this matter prior to trial if Plaintiff makes a specific
showing of its evidence and arguments. Of course, Plaintiff may choose to wait and make its
case for injunctive relief at the trial on the merits.
Case No. 1:11-CV-00187-SPM-GRJ

Page 11 of 11

that is required are locations that do not cause significant impediments to adult businesses
attempting to relocate. Id. In the present case, unless Plaintiff can show these alternative
locations are improper, there appears to be a constitutionally sufficient number of alternative
sites and therefore Defendant has met its burden to provide reasonable alternative channels
of communication.
D. CONCLUSION
Plaintiff has failed to show a likelihood of success on the merits. Accordingly, it is
ORDERED and ADJUDGED:
1.

Plaintiff’s motion for a preliminary injunction (doc. 5) is DENIED.

2.

Plaintiff’s motion for oral argument and evidentiary hearing (doc. 7) is

DENIED.
DONE and ORDERED this 17th day of April, 2012.

s/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge

Case No. 1:11-CV-00187-SPM-GRJ