Life’s a beach sometimes

Two federal, appellate opinions concerning adult entertainment were issued this week.

From the Seventh Circuit Court of Appeals, there is Forty One News, Inc. v. County of Lake. Long story short: 41 News, an adult book and video store, sued the county under 42 U.S.C. Sec. 1983, challenging the county’s adult use ordinance on federal constitutional grounds. The county in turn launched a “quasi-criminal enforcement proceeding” in the state court against 41 News. Holding: the district court properly abstained from hearing 41 News’s challenges under Younger v. Harris, 4o1 U.S. 37 (1971). Recall that “[t]he rule in Younger v. Harris is designed to ‘permit state courts to try state cases free from interference by federal courts.’” Hicks v. Miranda, 422 U.S. 332, 349 (1975) (quoting Younger, 401 U.S. at 43).

Who wins the race to the courthouse does not dictate which court retains jurisdiction. Several years ago, this issue surfaced in a case (For Your Eyes Alone, Inc. v. City of Columbus) that our firm handled. The facts were of course different, but either way, the court of appeals went the other way. I mention that case because I love the thoughtfulness of the court’s opinion:

Our decision that Younger abstention is unwarranted in the present case is colored by the cautious approach we have chosen to take in interpreting the scope of Hicks, given its possible effect on the federal jurisdictional scheme. On the one hand, the requirement enunciated in Hicks — a federal court must abstain if a state action is filed before proceedings of substance on the merits have occurred —ensures that the Younger doctrine neither is trivialized nor made formalistic by permitting a party to obtain federal relief merely by beating the state to the courthouse. Hicks, 422 U.S. at 350, 95 S. Ct. at 2292.

On the other hand, if we define too narrowly what constitutes proceedings of substance on the merits, we risk “vest[ing] the district attorney — not the aggrieved citizen — with the power to choose the forum, and, indeed, the nature of the proceeding in which the federal constitutional claim [will] be litigated.” Owen M. Fiss, Dombrowski, 86 Yale L.J. 1103, 1135 (1977); see also Erwin Chemerinsky, Federal Jurisdiction § 13.3, at 788 (3d ed. 1999). Indeed, we would risk creating an expansive “reverse removal power” in that state prosecutors, in effect, would have broad discretion to remove federal civil rights actions to state criminal court on a routine basis, even after the plaintiff had invested precious time and resources to bringing the federal litigation. Fiss, supra, at 1136. Consequently, while Hicks teaches us to refrain from focusing disproportionately on the respective commencement dates of the state and federal actions in determining whether Younger abstention applies, we must, at the same time, remain circumspect about interpreting Hicks in a manner that gives state officials expansive leeway to override a plaintiff’s choice of whether to litigate in a federal or state forum. Our decision here is an attempt to strike this balance.

From the Eleventh Circuit Court of Appeals, there is Daytona Grand, Inc. v. City of Daytona Beach. Daytona Grand (d/b/a Lollipop’s), an adult theater, challenged several of the city’s zoning and public nudity ordinances. Lollipop’s won (for the most part) in the district court. It lost, however, in the court of appeals. Among the holdings in this case:

  • Undeveloped industrial property (e.g., no buildings, little infrastructure, single private ownership) was properly counted for site availability analysis;
  • No grandfathering rights attached (under Florida law) even though the club opened when the zoning code was evidently unconstitutional;
  • The city could rely on anecdotal data to justify its adult ordinances, so long as that data is/are reasonable; and
  • The city could require more clothing than pasties and G-strings in an adult club.

This case is sure to make waves.

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