For the past two years we have periodically written to you about the two adult bookstores
within the City of Lauderhill, that the City classified as adult establishments and tried to close
down. The first establishment, University Video Enterprises, Inc. was only shut down for a
matter of hours by the City, while Thee Fantasy Shoppe II was permanently closed.
Both entities filed suit against the City of Lauderhill. In the case of University Video
Enterprises, Inc., their suit involved an injunction to keep them open and not have the city’s adult
entertainment code applied to them, while challenging the constitutionality of that code. As to
Thee Fantasy Shoppe II, since they had been permanently closed by the City, their suit involves
damages along with a declaration that the City’s Adult Entertainment Code, licensing
requirements, licensing suspension revocation hearing and zoning were unconstitutional.
In the case involving University Video Enterprises, a settlement was reached with the
City approximately 8 months ago where University Video Enterprises was not going to be
classified as adult entertainment and was going to be allowed to continue to operate in the
manner that it had been. Further, University Video Enterprises, Inc. received attorneys’ fees for
their troubles from the City.
Since Thee Fantasy Shoppe II was suing for damages, this case has not been settled.
However, on June 27, 2008, the Honorable Joan A. Lenard, United States District Court Judge
granted most of Thee Fantasy Shoppe II”s Motion for Summary Judgment. In her ruling, Judge
Lenard found for Thee Fantasy Shoppe II on numerous grounds.
Judge Lenard found that the City’s adult entertainment licensing scheme was
unconstitutional as it vested too much discretion in the City officials and allowed for
unacceptable delay by the City in granting a license. Further, the City requiring that adult
entertainment be located in an I-1 zone was also unconstitutional as a special exception was
needed to located in the I-1 zone. Judge Lenard found that the requirements of the special
exception also gave the City too much discretion and also allowed for unacceptable delay.
The Court also ruled on the City’s requirement that the proposed establishment not be in
violation of any provision of the City’s Code, or any building, fire or zoning code, statute,
ordinance or regulation. The ruling as to this matter was that this was also unconstitutional
because it would allow the City to decide which statutes or ordinances it wanted to apply to adult
entertainment and allow the city to make the unilateral determination whether those codes or
statutes had been violated. In addition, other provisions of the licensing scheme were also
declared unconstitutional.
Judge Lenard also found that the defects in the licensing scheme for adult entertainment
were so pervasive, that she was unable to sever the unconstitutional parts and leave remaining
those parts that were constitutional. Rather, because of how pervasive the unconstitutional parts
were, she declared the entire licensing scheme unconstitutional.
Although Judge Lenard ruled on behalf of Thee Fantasy Shoppe II, on almost all grounds,
she still has set the issue of damages to be determined through mediation. If mediation does not
come to a resolution of the matter, then a trial will be held on the issue of the proper damages.
Regardless of the amount of damages, Thee Fantasy Shoppe II should also be awarded attorneys’
fees.
Lastly, on due process grounds, other than First Amendment grounds, the Court ruled that
the City’s suspension revocation of business licenses prior to a hearing being held was also
unconstitutional. The Court noted, that the City’s interest in closing businesses that did not have
licenses or valid licenses according to the City, was overshadowed by the business’s rights to
have a due process hearing before their businesses were taken away.
We will keep you informed of what transpires as to the damages part of this case in the
upcoming months. However, in early September, Club Eden is scheduled to go to trial on its
challenges to the Town of Davie’s zoning, licensing and adult entertainment scheme. Many of
the arguments ruled on by Judge Lenard in Thee Fantasy Shoppe II are similar to those presented
in the Eden litigation. We will keep you informed of what transpires in that litigation as that
comes to past.
For those of you who follow the intricacies of First Amendment law and adult
entertainment juris prudence, you might remember the case of Alameda Books v. City of Los
Angeles. This case made it all the way up to the United States Supreme Court, where the Court
ruled for the first time that the adult entertainment establishment had the right to contest the
city’s factual finding as to whether or not adult entertainment establishments caused adverse
secondary effects. The Supreme Court ruling in Alameda Books led to the wonderful decision in
Daytona Grand v. City of Daytona Beach, at the District Court level which unfortunately was
overturned by the Eleventh Circuit Court of Appeals. Other good decisions for adult
entertainment from around the country also were based upon the dictates of the Alameda Books
case at the United States Supreme Court.
The Alameda Books case was remanded by the United States Supreme Court back to the
Federal District Court for the District Court to have a trial based upon the Supreme Court’s
decision. However, prior to trial Judge Pregerson granted Alameda Books Motion for Summary
Judgment, relying upon Justice Kennedy’s ruling at the United States Supreme Court.
Justice Kennedy’s decision pointed out that there must be proportionality. In essence,
what Justice Kennedy was saying was you can easily do away with all adverse secondary effects
of adult entertainment, by closing down all adult entertainment. However, there would be no
First Amendment expression left and therefore the remedies of clearing up adverse secondary
effects would not be in proportion to the harm to the First Amendment.
Judge Pregerson who found in Alameda at the trial level, that the city’s regulation for
preventing two types of adult uses even if owned by the same business or if a part of the same
business could not be in the same structure was unconstitutional. The Judge found that adult
arcades based upon the city’s ordinances would not survive and the city would have no adult
arcades. Therefore, since adult arcades and this form of First Amendment expression would not
survive, the ordinances lacked proportionality.
In the next month Daniel Aaronson and James Benjamin will travel to San Francisco to
the First Amendment Lawyers Association Summer Meeting. We will have the opportunity to
speak with the lawyer responsible for this victory in Alameda Books and learn the intricacies of
the decision and how it came to pass. In addition, James Benjamin will be attending the
Gentlemen’s Club Exposition in Las Vegas, Nevada at the end of August.
In the upcoming editions, we will certainly inform you of what transpired at these two
events.