United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on the Plaintiffs'
Motion for Partial Summary Judgment (Doc. 53, Coles'
Motion), filed by Laveranues Coles and his associated
business entity, Trouble Livin Life LLC (collectively
“Coles”) on May 1, 2017, and Defendant's
Motion for Summary Judgment (Doc. 50, City's Motion),
also filed on May 1, 2017. This action arises from the City
of Jacksonville's (City) denials of various zoning
exception applications submitted by Coles in his effort to
open a dancing entertainment establishment (DEE) which serves
alcohol (otherwise known as a “bikini bar”).
Coles asserts that the City's denials of his applications
violated the First Amendment protections of free speech and
expression. See generally Complaint for Injunctive and Other
Relief and Demand for Jury Trial, Doc. 1; Complaint.
Coles' Motion, Coles, on behalf of himself and Trouble
Livin Life, LLC, seeks entry of an order granting partial
summary judgment against the City finding that the City's
“denial of Plaintiffs' zoning applications lacked
competent substantial evidence and deprived Plaintiffs[']
of their due process rights . . . .” See
Coles' Motion at 1. The City opposes Coles' Motion.
See Defendant's Response to Coles' Motion
for Partial Summary Judgment (Doc. 58, City's Response),
filed May 22, 2017. Additionally, in the City's Motion,
the City seeks entry of judgment as a matter of law on all
claims raised in Coles' Complaint. See
City's Motion at 1. Coles opposes the City's Motion.
See Coles' Response to Defendant's Motion
for Summary Judgment (Doc. 57, Coles' Response), filed
May 18, 2017. As such, both Coles' Motion and the
City's Motion are ripe for review.
STANDARD OF REVIEW
Rule 56, Federal Rules of Civil Procedure (Rule(s)),
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a). The record to be considered on a
motion for summary judgment may include “depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Rule 56(c)(1)(A). An issue is
genuine when the evidence is such that a reasonable jury
could return a verdict in favor of the nonmovant. See
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (quoting Hairston v. Gainesville Sun
Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)).
“[A] mere scintilla of evidence in support of the
non-moving party's position is insufficient to defeat a
motion for summary judgment.” Kesinger ex rel.
Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247
(11th Cir. 2004) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202
party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined
at trial. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “When a moving party
has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White
Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)
(citations and quotation marks omitted). Substantive law
determines the materiality of facts, and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248,
106 S.Ct. at 2510. In determining whether summary judgment is
appropriate, a court “must view all evidence and make
all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52
F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros.
Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d
1571, 1578 (11th Cir. 1994)). Notably, the instant action is
before the Court on cross-motions seeking summary judgment.
“The principles governing summary judgment do not
change when the parties file cross-motions for summary
judgment.” T-Mobile S. LLC v. City of Jacksonville,
Fla., 564 F.Supp.2d 1337, 1340 (M.D.Fla.2008). Instead,
applying the same principles, “the Court must determine
whether either of the parties deserves judgment as a matter
of law on the undisputed facts.” Id.
controversy arises out of the City's failure to grant
several requests for zoning exceptions, waivers, and
deviations (collectively the Zoning Exceptions) that would
allow Coles, and his associated company, Trouble Livin Life,
LLC, to open and maintain an establishment that provides
patrons with non-nude dancing entertainment along with
alcohol in Jacksonville, Florida. Coles asserts that the
City's failure to grant the requested Zoning Exceptions
violates his First Amendment Rights and constituted an
unlawful restraint on free speech and expression.
course of seeking to open his entertainment establishment,
Coles entered into a lease with HI LLC, the owner of property
located at 5800 Phillips Highway, Jacksonville, Florida
(“the Property”). Complaint at ¶ 11. The
structure on the Property was developed in 1967 as a night
club and restaurant and has been used in that manner over the
years. See Doc. 53-9 at 2 (Department
Report on Application for DEE Serving Alcohol); Doc. 53-10 at
1-2 (Department Report on Application for Distance Waiver for
Liquor License Locations); Doc. 53-11 at 1 (Department Report
on Application for Reduced Parking Deviation). In preparing to
open a bikini bar on the Property, Coles “spent over
$500, 000 to redevelop the property, renovate the building
and eliminate the [building] code violations and in addition,
spent over $300, 000 purchasing . . . liquor licenses as
required by law.” Complaint at ¶ 24. He also
applied for and obtained a license from the Jacksonville
Sherriff's Office to operate a DEE. Doc. 53-18 (License
Application for Adult Entertaining/Dancing Entertaining
Establishment); Doc. 53-5 (DEE premises
license).Coles opened his venue in early 2014,
Complaint at ¶ 25, allegedly operating as a restaurant.
See Department Report on Application for DEE Serving
Alcohol at 2; Department Report on Application for Distance
Waiver for Liquor License Locations at 2; Department Report
on Application for Reduced Parking Deviation at 1; August 20,
2015 Commission Meeting Transcript at 8.
time Coles rented the Property, it was zoned in the
Commercial Community/General-2 (CCG-2) area, where DEEs not
serving alcohol are permitted to operate as a matter of
right. See Jacksonville, Florida Ordinance Code (the
Code), § 656.313(a)(V)(b)(25); Department Report on
Application for DEE Serving Alcohol at 1; Department Report
on Application for Distance Waiver for Liquor License
Locations at 1; Department Report on Application for Reduced
Parking Deviation at 1. Therefore, Coles could have operated
the Property as a DEE. However, in order to lawfully serve
alcohol at his DEE, the Code required Coles to obtain a
zoning exception from the City. Additionally, due to the
location of the Property, and Coles' desire to make the
most of its square footage, he needed to obtain at least two
other exceptions/waivers. Hence, in late 2013 and early 2014,
Coles requested three different zoning exceptions from the
City Planning Commission (Commission), which he believed
collectively would have allowed him to lawfully operate a
bikini bar on the Property.
Coles sought to obtain a zoning exception to operate a DEE
serving alcohol. See Application for Zoning
Exception to Operate DEE Serving Alcohol; see also
Code § 656.313(A)(V)(c)(11) (DEE serving alcohol is a
permissible use by exception). Additionally, because he
wished to use the entire square footage of the structure on
the Property for a DEE, bar, and restaurant, Coles sought an
administrative deviation allowing him to have fewer parking
spaces at the Property than the Code otherwise required.
See Doc. 53-8 (Application for Reduced Parking
Deviation); see also Code § 656.604 (detailing
number of off-street parking spaces required for nightclubs).
Finally, because the Property was located closer to two
nearby churches than otherwise permitted by the zoning code,
Coles sought a waiver of the minimum distance requirements
for a liquor license location. See Doc. 53-7
(Application for Distance Waiver for Liquor License
Location); see also Code § 656.805 (detailing
distance limitations for establishments with liquor
licenses). All told, if Coles obtained these three different
zoning exceptions/waivers/deviations, he believed he would be
able to legally operate the bikini bar as he desired at the
order to obtain a zoning exception or variance, an applicant
must first submit an application to the City Planning and
Development Department (Planning and Development Department).
See Code §§ 656.131(a), 656.132(a),
656.133(a). The Planning and Development Department then
issues an advisory report to the City Planning Commission
(Commission) regarding the application. Id. at
§§ 656.131(b), 656.132(b), 656.133(a). The
Commission is then responsible for “holding a public
hearing with respect to each application for a zoning
exception to the Zoning Code, ” and rendering decision.
Id. An applicant may appeal a Commission decision to
the City Council through its Land Use Zoning Committee (LUZ
Committee). Id. at §§ 656.140, 656.144.
The LUZ Committee, acting on behalf of the City Council, may
“affirm, reverse, or modify each contested decision, or
it may remand the matter back to the Commission . . . with
specific instructions for further action . . . .”
Id. at § 656.145(a). “When the Council
[through the LUZ Committee] acts on a contested decision
pertaining to a final action of the Commission . . ., Council
action shall be deemed the final action of the City of
Jacksonville.” Id. at § 656.145(b).
first filed his applications for the three Zoning Exceptions
with the Planning and Development Department in December of
2013 and January of 2014. See Application for Zoning
Exception to Operate DEE Serving Alcohol; Application for
Distance Waiver for Liquor License Location; Application for
Reduced Parking Deviation. After reviewing his applications,
the department issued reports generally recommending approval
of his applications. See Department Report on
Application for DEE Serving Alcohol; Department Report on
Application for Distance Waiver for Liquor License Locations;
Department Report on Application for Reduced Parking
Commission then reviewed Coles' applications during a
public meeting held on May 22, 2014. See Doc. 53-14
(May 22, 2014 Commission Meeting Transcript). At the start of
the meeting, the Commission chair stated that
“[t]oday's decisions on land use and zoning matters
are only recommendations. These recommendations will be
submitted to our City Council's Land Use and Zoning
Committee. . . . The LUZ Committee is under no obligation to
adhere to our recommendations . . . .” May 22, 2014
Commission Meeting Transcript at 1. In addressing Coles'
applications, the Commission began by hearing from a
representative from the Planning and Development Department
who reported on the department's general approval of the
applications. Id. at 24; Department Report on
Application for DEE Serving Alcohol; Department Report on
Application for Distance Waiver for Liquor License Locations;
Department Report for Reduced Parking Deviation. See
also Code § 656.131(b) (City Department of Planning
and Development shall make an “advisory recommendation
to the Commission with respect to each application for a
zoning exception.”); § 656.132(b) (same for zoning
variances); § 656.133(a) (same for zoning waivers).
Commission also heard from two members of the community, Mr.
Wilson and Ms. Jenkins, both of whom spoke against Coles'
applications. May 22, 2014 Commission Meeting Transcript at
25-27. Wilson expressed concerns about parking at the
Property, while Jenkins, a former city council member who had
represented the neighborhood, stated displeasure about having
another adult themed establishment in an area where several
others already existed. Id. Coles'
representative, Mr. Yancy, also addressed the Commission,
arguing in favor of granting the Zoning Exceptions.
Id. at 24, 28.
Commissioners then discussed a variety of concerns they had
with Coles' applications for the Zoning Exceptions
including matters of parking, id. at 28, as well as
whether a bikini bar would enhance or undermine development
in the area. Id. at 29. At the close of their
discussion, the Commissioners unanimously voted to deny
Coles' applications. Id. at 29-30. Upon
recording their vote, the Chairman reminded Yancy of
Coles' right to appeal the Commission's decision.
Id. at 30. However, Coles did not do so. Instead, a
year later, and as permitted by section 656.136(e) of the
Code, Coles resubmitted his applications for the necessary
Zoning Exceptions for additional review.
Commission reviewed Coles' renewed applications at a
public meeting on August 6, 2015. See Doc. 53-15
(August 6, 2015 Commission Meeting Transcript). Again, the
Commission chair reiterated that the decisions of the
Commission were only recommendations and that ultimately, all
matters would be decided by the LUZ Committee. August 6, 2015
Commission Meeting Transcript at 1. Similar to the May 2014
meeting, the Commission heard from the Planning and
Development Department which again recommended approval of
Coles' applications. Id. at 22-23. Additionally,
members of the community, id. at 24, and Coles,
spoke before the Commission. Id. at 23, 24-30, 32.
At this meeting, the community feedback focused on concerns
regarding parking and the overall sanitation and cleanliness
of the Property in relation to neighboring properties.
Id. at 24. Following the community statements, the
Commissioners engaged in a substantive discussion, with
feedback from Coles, regarding their concerns and questions
relating to his applications. Id. at 25-32. During
this discussion, the Commissioners discussed whether there
was a proliferation of bikini bars and other adult
entertainment establishments in the area. Id. at 27,
32. They also questioned Coles' ability to provide
sufficient parking at his establishment given the size and
capacity of the property, and inquired into matters of
security. Id. at 25-32.
structure on the Property had a square footage of 16, 000
feet, but the entire Property did not provide sufficient
parking. Hence Coles requested a parking deviation. Coles
explained that if he was able to use all 16, 000 feet of the
structure, he could utilize the Property as a restaurant,
bar, and dancing establishment. With all three uses present,
he could hire off-duty City police officers to provide
security at the venue. Id. at 26, 27, 29. Notably,
pursuant to City regulations, if the Property's use was
limited to a DEE serving alcohol, officers could not provide
an off-duty security presence. Id. at 26-27. Because
the security issue was important to Coles, he explained that
he wanted to use the entire structure, id. at 30,
but in order to do so, he needed the parking deviation.
Commission considered whether, as a means to alleviate the
parking concerns, but also as a “creative interesting
way of trying to allow security to be on site, ”
id. at 29, Coles could reduce his square footage
occupancy of the building, but still have all three uses.
Id. at 26, 28, 29, 31. However, Coles stated that
because of how the building was configured, reducing the
square footage was not an option. Id. at 28, 33. As
such, if Coles wanted to use all 16, 000 feet of the building
to house a restaurant, bar, and DEE, he could have police
presence, but would need a parking deviation. Alternatively,
he could reduce his square footage use of the Property,
limiting it to being a DEE serving alcohol. Doing so would
alleviate the parking concerns, but would undermine his
ability to have City security presence. Hence, the questions
regarding building size, building usage, parking, and
security were necessarily intertwined.
end of the discussion, the Commissioners appeared to have
more questions than answers as to whether they should grant
Coles' applications for the requested Zoning Exceptions.
They therefore voted to defer their decision on the matter
until the next Commission meeting scheduled to be held two
weeks later. Id. at 34. In the interim, the Planning
and Development Department was to work with Coles to try to
address the Commission's parking and security concerns.
Id. at 33, 34.
weeks later, on August 20, 2015, Coles again appeared before
the Commission for a public hearing on his applications for
the Zoning Exceptions. August 20, 2015 Commission Meeting
Transcript at 4. Following the same format as the May 2014
and the August 6, 2015 meetings, the Commission heard from
the City's Planning and Development Department which
again recommended approval of Coles' applications.
Id. at 4-5. Ms. Jenkins, who had spoken at the May
2014 meeting, returned to reiterate her opposition to the
approval of another DEE serving alcohol in the area.
Id. at 5-7. Finally, Coles addressed the
Commissioners. Id. at 5, 7, 8. At that time, Coles
reported that he had entered into an informal arrangement
with a property owner across the street (Phillips Highway).
That owner agreed that Coles' patrons could park at that
property. Id. at 5. Likewise, Coles reported that
other neighboring property owners had agreed that Coles'
patrons could park on their neighboring properties.
Id. at 5.
Commissioners then engaged in a discussion regarding
Coles' applications. The Commissioners expressed concerns
that even with the parking agreements with neighbors, there
would still be more cars at Coles' establishment than the
general area could sustain. Id. at 9-10, 11, 12.
Likewise, some Commissioners reiterated their concern
regarding the increased number of adult themed establishments
in the area, and their stated disagreements with the Planning
and Development Department's recommendations.
Id. at 10, 13. Additionally, the Commissioners
disagreed among themselves as to whether Coles had done all
that was necessary to obtain the requested Zoning Exceptions,
some believing that despite their personal disfavor for
bikini bars, Coles should be granted the exceptions,
id. at 11, while others still questioned whether
Coles had indeed satisfied the requirements for his requested
exceptions. Id. at 11-12. Ultimately, the Commission
voted, 5-2, to deny Coles' requested Zoning Exceptions.
Id. at 13.
then filed a timely appeal to the LUZ Committee as was his
right pursuant to Code sections 656.140-141. On or around
December 4, 2015, the LUZ Committee remanded the matter back
to the Commission, noting that Coles needed to apply for an
additional exception relating to distance requirements
applicable to bikini bars and adult entertainment
establishments. See Expert Report of Paul M. Harden
at 2-3; see also Code § 151.202(c) (detailing
interplay of distance requirements for bikini bars and other
adult entertainment and service facilities); § 656.1103
(imposing, among other things, distance limitations between
adult entertainment, service facilities, and DEEs). In doing
so, the LUZ Committee gave Coles 60 days to file his
additional zoning exception applications. City's Motion
at 13. However, Coles took no further action on the LUZ
Committee's remand to the Commission, and instead, at the
end of December 2015, filed this action in federal court.
Complaint at 1.
action before the Court, Coles seeks relief pursuant to 42
U.S.C. § 1983, asserting that the City violated his
rights under the First and Fourteenth Amendments to the
United States Constitution by undermining his ability to open
a DEE that serves alcohol. Specifically, Coles asserts three
claims. First, he alleges that the City's denial of his
requested Zoning Exceptions violated his Constitutional
rights, thereby warranting an injunction, costs and
attorneys' fees, and any other relief granted by the
Court. Complaint at ¶ 74. The Court construes this claim as
an “as applied challenge” to the Code. Second,
Coles asserts a facial challenge against the Code as it
pertains to regulating bikini bars. Id. at ¶
75-79. However, in his response to the City's Motion,
Coles withdrew this claim. See Coles' Response
at 19-20. Therefore, the Court will not address it further.
Third, Coles alleges that because of the City's denial of
his requested Zoning Exceptions, he suffered a variety of
lost business opportunities, and therefore seeks damages from
the City. Complaint at ¶ 80-83. Both parties
subsequently filed motions seeking entry of either full or
partial summary judgement.
ARGUMENTS OF THE PARTIES
City's Motion, the City asserts that the Court lacks
subject matter jurisdiction over this case. Specifically, the
City contends that Coles' claims are not ripe because he
never received a final decision from the City regarding his
2015 requests for the Zoning Exceptions. City's Motion at
11. In the alternative, the City asserts that should the
Court determine that Coles' claims are ripe, Coles cannot
show that the City's denials of his requests for Zoning
Exceptions were driven by discrimination against the form of
expression that was to occur in his establishment.
Id. at 13-16. Therefore, according to the City, the
Court should grant summary judgment in its favor. In
response, Coles asserts that the claims are ripe, and even if
they were not, any attempt on his part to seek a final
decision from the City would have been futile. Coles'
Response at 2. Additionally, Coles asserts that the
City's denials of his zoning exception applications
violated his Due Process rights in that they represented
“an arbitrary and irrational interference” with
his right to use the property in accordance with the First
Amendment. Id. at 16-17.
Coles' Motion,  he contends that the City's denial
of his zoning exception applications was not supported by any
substantial competent evidence and therefore violated his Due
Process rights. Coles' Motion at 9, 12. Hence, Coles
asserts he should be granted summary judgment. In response,
the City contends that having abandoned his facial challenge
to the City ordinance, Coles' claims are reduced to mere
state law challenges to the City's zoning procedures.
City's Response at 2. As such, the City argues that there
are no federal claims before the Court. Id. at 6.
The City also reiterates its ripeness arguments. Id.
at 7-8. Ultimately, the City asserts that Coles “simply