A law written to capture a specific business sticks out like a sore thumb.
Yesterday the Eleventh Circuit Court of Appeals issued an opinion beginning, “In this case, we consider whether a business may sue a municipality under 42 U.S.C. § 1983 to recover damages it sustained by cautiously complying with an ordinance that the business claims is unconstitutionally vague under the Fourteenth Amendment.” That business is an Ocala pool hall and, at times, nightclub.
As the court of appeals observed:
The business does not engage in any constitutionally protected activities under the First Amendment or any other provision of the United States Constitution. It therefore does not claim that the unclear ordinance chilled protected conduct. Rather, it simply claims that the municipality violated its right to operate under clear laws. The district court denied the business’s request for damages, but granted it a permanent injunction and declared the ordinance “unconstitutionally vague on its face.”
You probably can see where this is going. Without a fundamental right at stake, the business will be hard-pressed to pursue a pre-enforcement, facial challenge on vagueness grounds. It seems the court of appeals was sympathetic to the pool hall, somewhat, given that Ocala’s zoning ordinances regulating billiard halls vis-a-vis underage admission to nightclubs is a “complex web of definitions and exemptions.” Had the pool hall pursued an as-applied vagueness challenge, it might have succeeded. Who knows.
The City of Ocala’s ordinance is so confusing (to me, at least) that, rather than risking non-compliance, most pool halls will probably not mess with a “nightclub” format.
Then again, maybe that’s the point.