TOKYO GWINNETT, LLC, d.b.a. Tokyo Valentino Plaintiff - Appellant,
GWINNETT COUNTY, GEORGIA Defendant-Appellee.
from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:15-cv-02606-TWT
MARTIN, JILL PRYOR and JULIE CARNES, Circuit Judges.
MARTIN, Circuit Judge.
2015, Tokyo Gwinnett, LLC (doing business as "Tokyo
Valentino") sued Gwinnett County, Georgia ("the
County"), challenging certain business licensing and
adult entertainment ordinances. Tokyo Valentino sought
damages under 42 U.S.C. § 1983 and declaratory and
injunctive relief. Unfortunately for these parties, they have
been litigating ever since.
District Court first dismissed Tokyo Valentino's amended
complaint on mootness grounds after the County repealed and
replaced the challenged ordinances. This Court vacated the
District Court's order and remanded. On remand, Tokyo
Valentino filed a second amended complaint, challenging both
the repealed ordinances and the County's new, replacement
ordinances. Again the District Court dismissed Tokyo
Valentino's claims. It is this second dismissal that is
the subject of the present appeal.
Valentino appeals the District Court's finding that it
lacks standing to bring claims related to the repealed
ordinances. Tokyo Valentino also appeals the District
Court's decision to abstain under the doctrine
established in Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746 (1971). Citing Younger, the District Court
abstained from hearing claims as to the replacement
ordinances because of a pending state court enforcement
proceeding initiated by the County against Tokyo Valentino
while the earlier appeal was pending before this Court.
careful consideration, and with the benefit of oral argument,
we affirm the District Court's dismissal of Tokyo
Valentino's claim for compensatory damages relating to
the repealed ordinances. However, we reverse the dismissal of
Tokyo Valentino's request for a declaratory judgment
regarding whether its sale of sexual devices constitutes a
lawful prior nonconforming use authorized under the repealed
ordinances and whether the new ordinances' failure to
include provisions grandfathering in prior lawful uses
violates federal and state law. It is also our judgment that
the District Court abused its discretion by abstaining under
Younger from hearing Tokyo Valentino's claims
stemming from the County's new ordinances. We therefore
affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
2015, Tokyo Valentino applied for an initial
business/occupation tax certificate. The application defined
the business's line of work as "Retail" and
appended a copy of Tokyo Valentino's license to sell
tobacco products. The County approved the application,
describing Tokyo Valentino as a "Tobacco Store"
on the certificate it issued.
next month, Tokyo Valentino wrote to the County stating it
intended to stock sexually explicit materials. It specified
it would be adding a small number of DVDs and magazines, and
sexual devices "including dildos, vibrators, and other
devices commonly used to stimulate human genitalia"-to
its inventory. The letter indicated Tokyo Valentino believed
its plans comported with the County's ordinances and
maintained Tokyo Valentino did not need any additional
licenses to lawfully operate.
later, the County took two actions. First, on June 23, 2015,
it adopted a resolution beginning a study into the effects of
adult entertainment on its community. The resolution included
a moratorium on accepting any new applications or issuing any
new licenses for adult entertainment establishments until
August 27, 2015, when the study was due to be completed.
Second, the County responded to Tokyo Valentino in a letter
dated June 24, 2015. In this letter, the County asserted that
Tokyo Valentino's new description of its product lines
was not consistent with the description it offered in its
initial application. The County insisted Tokyo Valentino
update its application and threatened to revoke its business
license if it failed to do so.
Tokyo Valentino submitted revised application materials, the
County informed the business that, although it was authorized
to sell most of the items it planned to stock, it would need
an adult entertainment establishment license to sell sexual
devices. Nevertheless, because of the County's moratorium
on issuing such licenses, the County advised Tokyo Valentino
of two options: it could eliminate sexual devices from its
planned inventory or it could wait until the County lifted
its moratorium and apply for a license then. The County also
advised it would "have no choice but to enforce its
ordinances" if Tokyo Valentino did not take one of the
courses the County had outlined. Instead of taking either
outlined option, Tokyo Valentino filed suit on July 22, 2015.
Valentino's first amended complaint challenged the
constitutionality of several local ordinances, asserting they
violated its First and Fourteenth Amendment rights. The
complaint sought an injunction barring the County from
interfering with Tokyo Valentino's business operations, a
"declar[ation] that [Tokyo Valentino] is a lawful use
under the County's existing ordinances," nominal and
compensatory damages, and attorney's fees and costs. On
September 1, 2015, the parties agreed to a consent temporary
restraining order. Under this agreement, the County would
refrain from requiring Tokyo Valentino to seek an adult
entertainment establishment license for ninety days so long
as it operated its business according to representations made
in its amended business/occupation tax certificate
application. In October 2015, the County answered Tokyo
Valentino's amended complaint.
the agreed upon ninety-day period elapsed, the County adopted
new adult entertainment ordinances and rescinded its former
ordinances. The new ordinances specifically defined
"sexual device" and identified "sex
paraphernalia stores" as a regulated "adult
establishment" for which an operator must receive a
special permit. Gwinnett County, Ga., Ordinance § 18-292
after the new ordinances were enacted, the County moved to
dismiss Tokyo Valentino's suit as moot. Insisting
dismissal was not warranted, Tokyo Valentino sought leave to
amend its complaint for a second time to add claims
challenging the newly enacted ordinances. In a one paragraph
order issued in January 2016, the District Court denied Tokyo
Valentino's motion for leave to amend because "there
may be a ripeness issue" and granted the County's
motion to dismiss the action as moot. Tokyo Valentino
appealed to this Court.
this Court decided Tokyo Valentino's appeal, the County
filed a separate action against Tokyo Valentino in the
Superior Court of Gwinnett County. Gwinnett County v.
Tokyo Gwinnett, LLC, Civ. No. 16-A-06816-2 (Gwinnett
Cty. Super. Ct., filed July 8, 2016). In that action, the
County sought an injunction prohibiting Tokyo Valentino from
operating in violation of the replacement adult entertainment
ordinances. On September 26, 2016, the Superior Court denied
the County's motion for an interlocutory injunction and
stayed the action pending the outcome of the federal
two days later, a panel of this Court decided Tokyo
Valentino's appeal. The panel partly vacated the order
dismissing Tokyo Valentino's action and remanded the
case, explaining the District Court erred in dismissing the
entire action as moot. Tokyo Valentino's damages claim
was not mooted when the County's ordinances were
repealed, even though its claims for prospective declaratory
and injunctive relief were mooted and were rightly dismissed.
But the panel clarified that its opinion did not address
whether there might be some other valid ground for dismissing
Tokyo Valentino's action. The panel also held that the
District Court abused its discretion when it denied Tokyo
Valentino's motion for leave to amend on the "mere
possibility" its proposed claims might be unripe.
November 2016, Tokyo Valentino filed its second amended
complaint. In the new complaint, Tokyo Valentino sought
"an order (1) granting preliminary and permanent
injunctive relief preventing the County from enforcing
certain adult entertainment laws against it, and from
threatening to revoke its business license based on perceived
violations of those adult [entertainment] laws, (2) declaring
that it is a lawful prior nonconforming use under the
County's existing ordinances, (3) awarding damages for
infringing on its rights, and (4) awarding reasonable
attorney's fees and costs."
again, the County moved to dismiss. This time, the County
argued Tokyo Valentino lacked standing to bring claims
challenging the original ordinances. The County's
standing argument centered on a previously unmentioned
provision of the Gwinnett County zoning code that identifies
permitted activities within each zoning district. That
provision contains a table of permitted uses that features
more than 100 commercial and retail land uses- including
"Convenience Store (with or without fuel pumps),"
"Department Store," "Discount Department
Store, Big-Box Specialty Store or Supercenter,"
"Dollar or Variety Store," "Recreation and
Entertainment Facility (indoor)," "Smoke Shop or
Novelty Shop." Gwinnett Cty., Ga., Unified Dev.
Ordinance § 230-100 (2015). The provision provides
"[a]ny use not listed in said table shall be prohibited,
except as contained herein" and indicates the
County's Zoning Director has the authority to approve
unlisted land uses. Id. A different part of the
zoning code establishes that "[w]henever a conflict of
definitions is considered to exist or an interpretation of
these definitions is necessary, the Director shall resolve
the conflict and interpret the definition." Id.
to the County, because Section 230-100 did not list
"sexual device store" as a permitted land use in
the zone in which Tokyo Valentino operated, the land use was
presumptively prohibited. Tokyo Valentino did not challenge
the zoning provision, so the County contended it
independently barred the sale of sexual devices. This being
the case, the County argued that the District Court could not
redress injuries that purportedly stemmed from the original
adult entertainment ordinances.
the replacement ordinances, the County invoked Younger v.
Harris, 401 U.S. 37, 91 S.Ct. 746 (1971), which held
that federal courts should abstain from hearing suits aimed
at restraining pending state criminal prosecutions.
Id. at 41, 95 S.Ct. at 749. The County contended the
District Court should abstain from hearing Tokyo
Valentino's challenges because the pending Superior Court
action concerned the same subject matter.
District Court agreed with the County in all regards and
granted its motion to dismiss. Relying on Unified Development
Ordinance § 230-100, the District Court found Tokyo
Valentino's challenges to the original ordinances were
not redressable. The District Court reasoned that the zoning
provision prohibited the sale of sexual devices and found
Tokyo Valentino had not challenged that provision.
Valentino argued it was not a sexual device store, but
instead a novelty store, which was a permitted land use. The
District Court rejected this argument. According to the
District Court, Section 230-100 "clear[ly]" defined
each land use listed in the table by the "primary type
of good or service being sold or marketed." Because
"there [was] no doubt that Tokyo Valentino is attempting
to, at least in some respect, operate a sexual device
store" and "the sale of adult sexual devices is
fundamentally distinct from the sale of other
novelties," the District Court sided with the County.
After offering its own interpretation of the zoning
ordinance, the District Court observed:
Regardless of what the Court thinks, the authority to discern
and distinguish between different land uses would seem to
rest squarely in the hands of the Zoning Director. In this
case, the Director made the decision that selling sexual
devices was not covered by any land use listed in the table.
the District Court found Tokyo Valentino's complaint did
not show it suffered an injury related to the repealed
ordinances. Specifically, the District Court declared there
was no threat of future harm stemming from the ordinances
because they were already repealed, and Tokyo Valentino's
second amended complaint had not asserted it suffered any
actual harm under the repealed ordinances, dooming its
request for damages.
claims relating to the current ordinances, the District Court
deemed it appropriate to abstain under the Younger
doctrine. The Court explained the state-court enforcement
proceeding was ongoing at the time Tokyo Valentino filed its
second amended complaint, which first asserted claims
concerning the new ordinances. Furthermore, in the District
Court's view, it had only decided procedural issues
regarding the new ordinances while the state court held a
substantive proceeding when it considered the County's
motion for interlocutory injunction.
Valentino now appeals, contesting the District Court's
dismissal of its second amended complaint.
Valentino first contests the District Court's finding
that it lacks standing to bring claims challenging the
County's now-repealed adult entertainment ordinances. To
establish Article III standing, a prerequisite to invoking
federal jurisdiction, a plaintiff must have "(1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision." Spokeo, Inc. v. Robins, 578 U.S.
___, 136 S.Ct. 1540, 1547 (2016). "When the defendant
challenges standing via a motion to dismiss, 'both . . .
trial and reviewing courts must accept as true all material
allegations of the complaint, and must construe the complaint
in favor of the complaining party.'" Region 8
Forest Serv. Timber Purchasers Council v. Alcock, 993
F.2d 800, 806 (11th Cir. 1993) (quoting Warth v.
Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206 (1975)).
But even at the pleading stage, "a plaintiff must
'clearly allege facts demonstrating each element,'
and we evaluate standing on a motion to dismiss based on the
facts alleged in the complaint." Aaron Private
Clinic Mgmt. LLC v. Berry, 912 F.3d 1330, 1336 (11th
Cir. 2019) (internal citation omitted) (quoting
Spokeo, 136 S.Ct. at 1547). This Court reviews a
district court's standing determination de novo.
Hollywood Mobile Estates Ltd. v. Seminole Tribe of
Fla., 641 F.3d 1259, 1264 (11th Cir. 2011).
Valentino requests two primary types of relief as to the
repealed ordinances: (1) an award of "damages for
infringing on its rights," and (2) a "declar[ation]
that it is a lawful prior nonconforming use under the
County's existing ordinances." Because a
plaintiff must establish standing for each type of relief
sought, Summers v. Earth Island Inst., 555 U.S. 488,
493, 129 S.Ct. 1142, 1149 (2009), we must separately assess
these forms of relief. As set out below, we affirm the
District Court's dismissal of Tokyo Valentino's
request for damages but reverse the dismissal of its request
for declaratory relief.
first consider Tokyo Valentino's argument that the
District Court erred in finding it lacks standing to bring
its claim for compensatory damages relating to the
County's original ordinances. We agree with the District
Court's finding that Tokyo Valentino's second amended
complaint does not contain factual allegations that establish
it suffered a cognizable injury in fact for which
compensatory damages might be warranted.
establish injury in fact, a plaintiff must show that he or
she suffered an invasion of a legally protected interest that
is concrete and particularized and actual or imminent, not
conjectural or hypothetical." Spokeo, 136 S.Ct.
at 1548 (quotation marks omitted). Tokyo Valentino contends
it met this requirement, pointing to several injuries alleged
in its second amended complaint. These include: (1) the
County adopted the adult entertainment ordinances in
"bad faith" in a "thinly-veiled effort to
thwart or eliminate a business that purveys erotic media and
sells sexual devices"; (2) "[i]f the County's
efforts continue, Tokyo Valentino will suffer additional
costs, lost profits and increased damage to its
goodwill"; (3) the County applied its original
ordinances in a way that "restrained [Tokyo Valentino]
from enjoying benefits of its contractual relationships"
and "providing to the adult public [s]exual
[d]evices"; and (4) Tokyo Valentino "suffered
damages when the County enforced [the now-repealed
ordinances] against it." However, none of these alleged
injuries suffices to establish Tokyo Valentino's standing
to seek damages.
first alleged injury-the County's past "bad
faith" efforts to thwart Tokyo Valentino's
business-is wholly abstract. To be cognizable, an injury must
be "concrete"; "that is, it must actually
exist." Spokeo, 136 S.Ct. at 1548.
"[C]laims of injury that are purely abstract . . . do
not provide the kind of particular, direct, and concrete
injury that is necessary to confer standing to sue in the
federal courts." ASARCO Inc. v. Kadish, 490
U.S. 605, 616, 109 S.Ct. 2037, 2045 (1989). Tokyo
Valentino's perception that the County acted in bad faith
isn't a cognizable Article III injury; it's simply an
allegation regarding the County's motives.
Valentino's second purported injury concerns its fears
that in the future the business "will suffer" harm
"[i]f the County's efforts continue." But this
alleged injury relates to future or prospective harm, not
imminent or actual harm. See Spokeo, 136 S.Ct. at
1548. Because the old ordinances were repealed and replaced,
these alleged injuries stemming from those ordinances will
never materialize and cannot support Article III standing.
Cf. Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir.
2006) ("If an action for prospective relief is not ripe
because the factual ...