On March 22, WSH obtained a favorable ruling for North Bay Village before the Eleventh Circuit Court of Appeals. The Eleventh Circuit refused to overturn the dismissal of a lawsuit challenging North Bay Village’s adult entertainment use regulations. Partner Edward G. Guedes, Chair of WSH’s Appellate Practice Group, handled the appeal for the City.
Developer Isle of Dreams, LLC wanted to develop an adult-entertainment complex on property that it owned in the City. Under the ordinances then in effect, the City required all adult-entertainment establishments to obtain a conditional-use approval in order to operate. The developer also needed to obtain the City’s approval of a site plan before beginning construction on the project, and submitted an application for both approvals in October 2011. By March 2012, the City had not granted either approval because of incomplete information needed to assess the application. The developer brought a lawsuit in U.S. District Court under 42 USC § 1983, alleging that the City’s requirements for obtaining a conditional-use permit were vague and discretionary, and constituted an unconstitutional prior restraint on free speech. The developer requested that the Court declare the code provisions unconstitutional, permanently enjoin their enforcement, and award attorneys’ fees and costs. The City filed a motion for summary judgment, arguing in part that the developer lacked standing to bring the action against the City because it failed to obtain a site approval from the City, and would therefore be unable to operate the adult-entertainment facility, regardless of the failure to obtain a conditional-use permit. The District Court agreed, and dismissed the complaint for lack of subject matter jurisdiction, and the developer appealed to the Eleventh Circuit.
Prior to oral arguments before the Eleventh Circuit, the City updated its code and changed a number of provisions governing adult entertainment establishments, including most of the provisions challenged in the lawsuit. Because the developer had provided no evidence that they City would reenact the repealed ordinances, the Eleventh Circuit held that the challenges to these repealed code provisions were moot. In addition, the Eleventh Circuit held that the developer failed to establish that it had standing to challenge a provision providing that conditional-use approvals would automatically lapse after 24 months, because it failed to obtain a site approval and could not show a constitutionally cognizable injury.
Attorneys in our Appellate Practice Group have a record of success pursuing and defending appeals of final judgments and verdicts, as well as non-final, interlocutory appeals on behalf of public and private sector clients throughout the State. In addition to handling dozens of appeals generated each year by our Litigation Division, the Group frequently serves as appellate counsel for our peers. The Group successfully advocates regularly before the Florida Supreme Court, all of the Florida district courts of appeal and the appellate divisions of Florida’s twenty judicial circuits, in addition to the United States Circuit Court of Appeals, the United States Supreme Court, and appellate courts in numerous other jurisdictions.
To read a copy of the Eleventh Circuit’s opinion, please click here.
Author(s): Edward G. Guedes & Brooke P. Dolara
