Benjamin, Aaronson, Edinger & Patanzo, P.A.

Daytona Grand reversed by the Eleventh Circuit Court of Appeals

On January 20, 2006, United States District Court Judge Antoon for the Middle District of Florida, gave Daytona Grand d/b/a Lollipops possibly the most significant victory for adult entertainment in this country in a number of years.  Unfortunately, the Eleventh Circuit Court of Appeals reversed that decision at the end of June, 2007.  This reversal, sets a standard that is almost impossible for an adult entertainment establishment to meet as far as whether adult entertainment establishments cause adverse secondary effects.  Further, the Court’s ruling on zoning issues, also means that it will be rather difficult for adult establishments to find places to locate, that are economically and physically viable.

All hope is not lost.  The decision by the Eleventh Circuit Court of Appeals is not final.  In fact, Daytona Grand represented by Daniel Aaronson and Gary Edinger out of Gainesville have filed a Motion for Reheairng En Banc.  What this means, is that instead of allowing a three judge panel to make the decision for the Eleventh Circuit, rather Daytona Grand is asking for all of the judges of the Eleventh Circuit to make the ruling.  The Petition for this Rehearing En Banc in pending in front of the Eleventh Circuit and since many of the rulings within Daytona Grand now conflict with the cases of Peek-A-Boo and Flanagans out of the Eleventh Circuit, there is great hope that in fact the entire Eleventh Circuit panel will take the case.

If the Eleventh Circuit’s entire panel takes the case, the ruling in Daytona Grand at the Eleventh Circuit is subject to being changed by the entire panel including being overturned.  Therefore, all hope is not lost and there is still a chance that Judge Antoon’s decision at the District Court level will be upheld.

Why is there hope?  The three judges that ruled at the Eleventh Circuit on the Daytona Grand case, were not any of the judges that had been party to the rulings in both Peek-A-Boo and Flanagans.  In fact, one of the judges was a visiting judge from an international commerce court.  Therefore, only two of the judges of the entire Eleventh Circuit have actually put their names to the Daytona Grand decision.  It is sincerely hoped, that the judges that put their names on the Peek-A-Boo and Flanagans decisions will be as outraged as we are with this decision, vote to have it heard en banc, and ultimately reaffirm Judge Antoon’s decision.

In essence, the nails are not in the coffin, there is still hope and there is the chance that Daytona Grand will have the chance to fight again in front of the Eleventh Circuit.  If that does not occur, and the Eleventh Circuit does not decide to hear this matter en banc, Daytona Grand is more than willing and able to take this matter up to the Supreme Court of the United States.  In fact, regardless of how the Eleventh Circuit ultimately rules as to whether they want to hear this matter en banc or not, and whether they overturn the previous ruling by the three judge panel, it is anticipated that one of the sides in this litigation will try to take this case up to the United States Supreme Court.

So all in all, the ruling from the three judge panel of the Eleventh Circuit was not good news, yet the fight is not over.  Daytona Grand intends to have its rights vindicated along with the rights of the citizens who live in the Eleventh Circuit of Florida, Georgia and Alabama.

It is hard to forget the day after William Jefferson Clinton was elected to be President of the United States in November of 1992.  While we were driving to work, the next morning, Rush Limbaugh was on the air.  He was going through a mantra of the winners and losers on the previous night elections.  As to who was the biggest winner on that day, he voiced, that it was him.  He explained that with Clinton being in office, he would have between four and eight years of material to work with and that his job would be much easier.

Remembering what Rush Limbaugh said, we can only fee the same way about having George W. Bush as our President.  There never has been a lack of something to write about.  There has always been material, as his presidency has been the most outrageous possibly in U.S. history.  The problem is, it is almost like information overload.  With the war in Iraq; with countless violations of the Constitution; with usurping of people’s rights, with flagrant disregard for international law and treaties, on any given day what do we write about.  The answer is it is hard to write about any of them when you want to write about all of them.

This article is supposed to be about First Amendment issues and First Amendment freedoms.  However, with this Administration there has been an assault on everyone of our rights and all of our freedoms.  We have had our phones and computers wiretapped.  We have had our treaties with other nations broken in the name of security.  We have attacked another country that posed no threat to us and have done it on the basis of lies, conjuncture and theories that did not pan out.  We have had an Administration that has grabbed more power than any Executive Branch in the history of this country.  It flaunts the rule of law and creates its own law.  In fact, Vice President Cheney has now established himself as outside of the Executive Branch of government; outside of the Legislative Branch of government and somehow a fourth branch of government with responsibility over all and answering to none.

We have had to watch an administration out a CIA operative in the name of political vendetta.  We have watched an administration official be convicted of obstruction of justice and perjury only to be pardoned by the President who ultimately he was protecting by his perjury and obstruction of justice. We have watched an Attorney General blatantly lie to Congress.

We even have had a Supreme Court that for the first time has decided not to protect a woman’s health by allowing her to have an abortion, but rather now has mandated that that abortion procedure would be criminal even if it saves her life.  That same Supreme Court on a case by case basis has sided with government over people, corporations over people but never with people.

We have a Senate and Congress that continually expresses its doubt for this war in Iraq and the President’s actions, but never steps up to the plate with binding resolutions or legislation to thwart the administration’s grab for power and zest for endless war.  We have a Congress that seems to flex its muscles, only to be constantly bullied by the President which causes them to slink away in defeat.

The President and this administration believe in the unitary executive.  They would have you believe that that means believing in a strong President as one of the three branches of government.  In actuality what they mean is that they believe in a dictator elected by the people but with all the powers of a king.  That is exactly what they have tried to set up George W. Bush as.  King George.

Since our legislators seem to be too weak to fight the king and the Courts having been stacked by the King, it is now up to us the people to demand our democracy back.  We don’t really know how it is done, because efforts like what we are asking for, just seem to grow on their own.  But somewhere, somehow it is time that the American people at the grassroot level decided to take back this country.  It is time that those of us who read our history books and civics books while going to school actually made this country become what we read about as being.  Those civic and history books were not written for the fun of it but rather to teach us how our government was supposed to behave.  It is time that we remembered our lessons of the sixth grade and forced this country to become a democracy once again and not this republican totalitarian regimen.

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