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Coles v. City of Jacksonville

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

December 7, 2017

LAVERANUES COLES and TROUBLE LIVIN LIFE LLC, Plaintiffs,
v.
CITY OF JACKSONVILLE, Defendant.

          ORDER

          MARCIA MORALES HOWARD, UNITED STATES DISTRICT JUDGE.

         THIS 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.

         In 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.[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.[2] Coles opposes the City's Motion. See Coles' Response to Defendant's Motion for Summary Judgment (Doc. 57, Coles' Response), filed May 18, 2017.[3] As such, both Coles' Motion and the City's Motion are ripe for review.

         I. STANDARD OF REVIEW

         Under 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).[4] 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 (1986)).

         The 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.

         II. BACKGROUND[5]

         This 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.

         In the 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).[6] 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).[7]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.[8]

         At the 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.

         First, 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 Property.

         In 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).

         Coles 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 Deviation.

         The 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).

         The 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.

         The 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.

         The 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.

         The 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.

         The 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.

         At the 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.

         Two 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.

         The 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.

         Coles 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.

         In his 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.[9] 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.

         III. ARGUMENTS OF THE PARTIES

         In the 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.[10]

         In Coles' Motion, [11] 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 ‚Äúsimply ...


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