WACKO'S TOO, INC. v. City of Jacksonville

658 F.Supp.3d 1086

WACKO'S TOO, INC., et al., Plaintiffs, v. CITY OF JACKSONVILLE, et al., Defendants.

Wacko's Too, Inc., et al., Plaintiffs, v. City of Jacksonville, Defendant.

Case No. 3:20-cv-303-TJC-MCR

Case No. 3:22-cv-798-TJC-MCR

United States District Court, M.D. Florida, Jacksonville Division

Signed February 27, 2023

Daniel R. Aaronson, James S. Benjamin, Benjamin, Aaronson, Edinger & Patanzo, PA, Ft. Lauderdale, FL, Gary S. Edinger, Benjamin, Aaronson, Edinger & Patanzo, P.A., Gainesville, FL, for Plaintiff.

Craig D. Feiser, Jason R. Teal, City of Jacksonville Office of General Counsel, Jacksonville, FL, Gabriella Young, Mary Margaret Giannini, Office of General Council, City of Jacksonville, Jacksonville, FL, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TIMOTHY J. CORRIGAN, United States District Judge

In the long standing and never-ending battle of wills between the City of Jacksonville and adult entertainment establishments, the Court is once again required to determine whether the City's latest efforts at regulation meet constitutional requirements. Both cases involve challenges to Chapters 150 and 151 of the Jacksonville Code. Plaintiffs in the earlier-filed case, No. 3:20-cv-303 ("Wacko's I"), allege constitutional violations stemming from Jacksonville Ordinance 2020-74-E ("2020 Ordinance"). After a bench trial covering eleven of the twenty-eight counts, the Court issued an Order ruling on seven counts and deferring four. The parties then briefed additional counts and settled others, leaving some remaining for the Court's adjudication. But before the Court ruled on the final issues in Wacko's I, the City Council passed Ordinance 2022-172-E ("2022 Ordinance"). Some amendments in the 2022 Ordinance attempted to address portions of Chapters 150 and 151 that the Court found unconstitutional in Wacko's I. This prompted the filing of the second case, No. 3:22-cv-798 ("Wacko's II"). The City has agreed to abate enforcement of the ordinances until the Court issues a final ruling on all issues in both cases.

Now, both cases are before the Court for resolution. In Wacko's I, the parties advised the Court of the remaining counts requiring determination, briefed them, and requested the Court determine them without argument. (See Docs. 40, 41, 90, 92, 95 in 3:20-cv-303). In Wacko's II, with the parties' agreement, the Court treated Plaintiffs' Motion for Preliminary Injunction as a merits brief. (Docs. 2, 19 in 3:22-cv-798). The City responded and Plaintiffs replied. (Docs. 24, 25 in 3:22-cv-798). The Court held a non-jury trial under Federal Rule of Civil Procedure 52 on December 15, 2022, the record of which is incorporated by reference. The Court now addresses all issues remaining in both cases.

While the Court will give a full explanation of its rulings below, the Court provides a brief summary up front. The Court is upholding as constitutional the age restriction requiring performers to be at least twenty-one-years-old (though the current version will need to be revised). The Court also upholds several procedural aspects of the 2022 Ordinance but invalidates others, particularly some parts of the licensing scheme and certain penalty provisions in Chapters 150 and 151.

I. BACKGROUND

The Court reiterates facts from its post-trial Order in Wacko's I relevant to both cases. (See Doc. 39 in 3:20-cv-303); Wacko's Too, Inc. v. City of Jacksonville, 522 F. Supp. 3d 1132 (M.D. Fla. 2021) (Corrigan, J.). On February 25, 2020, the City of Jacksonville passed the 2020 Ordinance, which became effective March 5, 2020. (Doc. 1 ¶ 44 in 3:20-cv-303). The 2020 Ordinance amended Chapters 150 and 151 of the Jacksonville Code by instituting new licensing requirements for performers at adult entertainment establishments, among other changes. (See Doc. 1-1 in 3:20-cv-303). Chapter 150 regulates adult entertainment establishments that do not sell alcoholic beverages and have nude dancing. Chapter 151 regulates establishments that sell alcoholic beverages, but performers must wear some covering.

Under the 2020 Ordinance, any performer at an adult entertainment establishment in Jacksonville must obtain a Work Identification Card, and no one under age twenty-one is eligible for the required card. See id. at 9, 16. The 2020 Ordinance states that the licensing requirements and other restrictions are designed to combat human trafficking and contains several "whereas" clauses regarding sex and human trafficking in the context of adult entertainment establishments. Id. at 1-5. After the Council passed the 2020 Ordinance, Plaintiffs in Wacko's I sued, attacking it as unconstitutional, largely under the First Amendment. (See Doc. 1 in 3:20-cv-303).

After a bench trial on some counts, the Court invalidated certain licensing provisions in the 2020 Ordinance as unconstitutional prior restraints because the Ordinance improperly provided the Sheriff unbridled discretion to decide performer license applications, allowed the Sheriff to delay decisions on the applications, and provided no avenue for relief if applications were not acted on. Wacko's Too, 522 F. Supp. 3d at 1145-48. The Court also struck down license application requirements of fingerprinting and proof of work eligibility, while allowing requirements of a photograph, dancer roster, and work card files to stand. Id. at 1149-51. But the Court determined that the performer age restriction issue needed more development. Id. at 1151-52. The parties filed additional briefing on the age restriction and other remaining issues. (Docs. 40, 41, 68 in 3:20-cv-303). The City then passed the 2022 Ordinance on April 26, 2022, amending the licensing provisions in Chapters 150 and 151 again. (Docs. 1 at ¶ 43, 1-1 in 3:22-cv-798).

The 2022 Ordinance altered portions of §§ 150.224 and 151.214 that the Court had determined were unconstitutional. (See Doc. 1-1 in 3:22-cv-798); Wacko's Too, 522 F. Supp. 3d at 1144-55. For example, the City removed from § 150.224(c) the sentence permitting "[t]he Sheriff ... to include whatever information he or she deem[ed] relevant" to issuing the Work Identification Card and added a list of specific information the application required from performers. (Doc. 1-1 at 3, 10-11 in 3:22-cv-798). The City Council kept the age restriction but added that the restriction would "not become effective unless and until the legality of this age restriction is determined to be valid or the City is otherwise not legally prevented from imposing this restriction." Id. at 4, 11-12.

From the 2022 Ordinance, Wacko's II arose. Plaintiffs bring five counts challenging portions of the 2022 Ordinance. (Doc. 1 in 3:22-cv-798). Like the Plaintiffs in Wacko's I, Plaintiffs in Wacko's II fall into three categories: (1) "Dancing entertainment establishments," called "bikini bars," regulated primarily by Chapter 151 that "provide live exotic dance performances in a nightclub format where alcoholic beverages are sold," and where performers wear coverings over their breasts, buttocks, and pubic regions; (2) Sinsations, an "adult entertainment establishment" regulated primarily under Chapter 150, that operates a "juice bar" with no alcoholic beverages and has nude dancing in a nightclub setting; and (3) individual performers who have worked at one or more of the establishments.¹ (See Doc. 1 ¶¶ 9-20 in 3:22-cv-798); Wacko's Too, 522 F. Supp. 3d at 1140. Five adult entertainment establishments are Plaintiffs in both cases. Now the Court must determine the remaining issues regarding the constitutionality of both the 2020 and 2022 Ordinances' regulations of adult entertainment establishments and performers at those establishments.

The Supreme Court has recognized erotic dancing as falling in the First Amendment's "outer ambit." See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) ("As we explained in Barnes,... nude dancing ... is expressive conduct, although we think it falls only within the outer ambit of the First Amendment's protection."); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1305 n.7 (11th Cir. 2003) ("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."). However, within certain constitutional confines, municipalities may regulate adult entertainment due to its negative secondary effects. See generally Redner v. Dean, 29 F.3d 1495, 1499 (11th Cir. 1994) ("While it enjoys some degree of First Amendment protection ... nude dancing is not immune from governmental regulation."). Examples of permissible governmental regulation of adult entertainment establishments include zoning restrictions, limiting or banning alcohol sales, and limiting hours of operation. See, e.g., Doe I v. Landry, 909 F.3d 99, 110 (5th Cir. 2018); Am. Entertainers, LLC v. City of Rocky Mount, 888 F.3d 707, 716, 723 (4th Cir. 2018); Fly Fish, Inc., 337 F.3d at 1315; Schultz v. City of Cumberland, 228 F.3d 831, 845-46, 848 (7th Cir. 2000); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1365 (11th Cir. 1999). These cases thus involve a recognized form of First Amendment expression, but one that the City may regulate within limits.

II. WACKO'S I AND II — CONSTITUTIONALITY OF PERFORMER AGE RESTRICTION

One issue arises in both Wacko's I and II. The 2020 and 2022 Ordinances both forbid anyone under age twenty-one from receiving the requisite Work Identification Card to perform at adult entertainment establishments in Jacksonville. The 2020 Ordinance states:

Each applicant must submit proof of identity and proof that applicant is at least twenty-one (21) years of age. Work identification cards shall not be issued to any person under the age of twenty one [sic].

§§ 150.224(c), 151.214(c); (Doc. 1-1 at 8-9, 16 in 3:20-cv-303). The 2022 Ordinance amended this language, stating that the City intends to enact the age restriction, but that...