Brandywine, Inc. D/B/A Expressway Video and Gary R. Sewell v. City of Richmond, Kentucky

359 F.3d 830, 2004 U.S. App. LEXIS 4039, 2004 WL 383349

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 3, 2004
• Docket: 02-5507
• Status: Published

Opinions

NORRIS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. COLE, J. (pp. 836-39), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Plaintiffs Brandywine, Inc. and Gary R. Sewell appeal from the district court’s dismissal of their constitutional challenge to the city of Richmond’s zoning scheme. They maintain that the district court erred when it upheld Richmond’s revocation of the business license to their adult bookstore. For the reasons given below, the order of the district court is affirmed.

I.

On June 25, 2001, plaintiff Gary R. Se-well, owner and president of Brandywine, Inc., applied for a business license in the city of Richmond, Kentucky. Sewell stated on his application that his business would engage in the “Rental, Sales & Exhibition of Video, Books, Magazines, e[tc.]” He signed a statement promising that “No Movies, Books, Magazines, Novelty item or any other item of an adult nature will not [sic] be sold, distributed or given away or traded at this location.” City officials issued him a license. Despite his disclaimer, Sewell proceeded to open a retail store selling sexually explicit books and other materials.

On July 18, 2001, city officials notified plaintiffs by letter that their store was operating improperly under Richmond’s zoning rules. The letter stated that the store was located in a B-3 business zoning-district, and that businesses engaged in selling adult materials were only permitted to locate in 1-2 industrial zones. The city revoked plaintiffs’ business license and ordered that the store be closed.

Since the time that their business was closed, plaintiffs have expressed no interest in relocating. Nor have they attempted to appeal their license revocation through the process provided by Richmond’s zoning rules.

II.

Zoning in Richmond is governed by a Development Ordinance. The Ordinance divides Richmond into five zoning districts: agricultural, residential, business, industrial, and public/semi-public. Within each zoning district, the Ordinance establishes three categories of permitted land use: principal/primary, conditional, and accessory. Prmeipal/primary uses are defined as uses “that are deemed to be most appropriate, and are permitted outright in a district without further review by the planning commission or the board of adjustment.” Conditional uses -are defined as “uses that may or may not be appropriate, dependent upon the situation. These uses may call for restrictions on location, size, extent, and character of performance in addition to those already imposed by the ordinance, and require review and permitting by [sic] the conditional use requiring review by the board of adjustments.” The Ordinance gives the board of adjustments the power to “approve, modify or deny any application for a conditional use permit.”

The Development Ordinance lists “bookstores” as principal/primary uses in B-3 zones, and provides that “[i]f a specific use is not listed, the closest related use will serve as the appropriate use category as determined by the planning commission.”

At the time that plaintiffs applied for their license, the Development Ordinance included an April 2001 amendment that categorized “Adult Bookstores” as conditional uses in 1-2 zones. It was this amendment that city officials relied upon when they revoked plaintiffs’ license.

Upon the revocation of their business license, plaintiffs brought this action for declaratory, injunctive and monetary relief. They alleged that Richmond’s zoning scheme unconstitutionally restricted their ability to exercise their First Amendment rights. They claimed that the April amendment forced adult businesses to locate in 1-2 zones, where, as conditional uses, the determination of whether they obtained licenses was subject to the unbridled discretion of the board of adjustments. They also alleged that the language of the April amendment was unconstitutionally vague and over-broad, and that Richmond’s enforcement of the zoning scheme resulted in the unconstitutional taking of their property.

Less than one month later, in August 2001, Richmond modified the Development Ordinance,- reclassifying adult bookstores as principal/primary uses in 1-2 zones. With this change, adult bookstores would no longer have to seek approval from the board of adjustments before-locating in 1-2 zones.

Despite the August amendment, plaintiffs continued to pursue their lawsuit. On March 29, 2002, the district court held that the Development Ordinance did not unconstitutionally restrict adult expression, and that the language of the April amendment was neither vague nor overbroad. It further held that plaintiffs lacked standing to challenge the conditional use procedure applied to adult bookstores in 1-2 zones, and alternatively, that the August amendment that classified adult bookstores as principal/primary uses in 1-2 zones rendered plaintiffs’ complaint about the conditional use procedure moot. Accordingly, the district court dismissed plaintiffs’ action. This appeal followed.

III.

1. Failure to Assert a Ripe Takings Claim

Plaintiffs argue that at the time that their license was revoked, Richmond’s zoning scheme was unconstitutional because the April amendment only permitted adult businesses to locate in 1-2 zones subject to the unbridled discretion of city officials. They contend that Richmond should have subjected them to the Development Ordinance as it existed prior to the April amendment, when no mention was made in the Development Ordinance of adult bookstores, and “bookstores” were categorized as principal/primary uses in B-3 zones.

Though plaintiffs have asserted a takings claim, that claim is premature. We ascertain whether a takings claim is ripe or not de novo. Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1362 (6th Cir.1992). A takings claim is not ripe until “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Because plaintiffs never appealed the revocation of their license, the city never reached a final, definitive position regarding the application of the Development Ordinance to plaintiffs’ business.

2. Standing

Plaintiffs appeal from the district court’s determination that they lacked standing to challenge provisions of the zoning scheme that applied outside of B-3 zones because they had not demonstrated an intent to relocate. Plaintiffs argue that standing requirements are relaxed in challenges premised on First Amendment violations, and accordingly, that they should have been permitted to assert third party standing to challenge the conditional use procedure applied to adult bookstores in 1-2 zones. They do not appeal the denial of their claim that that part of the Development Ordinance was vague or overbroad.

This court reviews de novo the district court’s conclusions of law with regard to standing! United States v. Miami University, 294 F.3d 797, 806 (6th Cir.2002). Where the district court has dismissed for lack of standing, we “accept as true all material allegations in the complaint, and construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Under traditional requirements for standing, plaintiffs must establish (1) injury in fact, meaning an invasion of a legally protected interest; (2) a causal relationship between the injury and the chai-lenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1074 (6th Cir.1994). The district court correctly held that under these requirements, plaintiffs have standing to challenge the zoning scheme’s ban on adult bookstores in B-3 zones, since they were injured in fact when they were forced to close their business, a causal relationship existed between the enforcement of the zoning scheme and the harm, and the injury was redressable by an award of monetary damages for lost business.

However, “a plaintiff may , have standing to challenge some provisions of a law, but not others.” Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). In the instant case, plaintiffs never alleged any intention to locate outside a B-3 zone. Therefore, under the traditional requirements, they lack standing to challenge the provisions of the zoning scheme that do not relate to B-3 zones, including the application of the conditional use procedure to adult bookstores in 1-2 zones.

Plaintiffs argue that they should be permitted to assert third party standing to challenge the conditional use procedure because they are mounting a First Amendment facial challenge to Richmond’s zoning scheme. Where plaintiffs challenge a statute or ordinance for vagueness or over-breadth, the Supreme Court has concluded that they have standing to assert the rights of third parties whose protected speech may have been impermissibly curtailed by the challenged prohibition, even though as applied to the plaintiffs themselves, the ordinances only curtailed unprotected expression. Young v. American Mini Theatres, Inc., 427 U.S. 50, 59 n. 17, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

■ [-9] In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Supreme Court concluded that the plaintiffs lacked standing to challenge “civil disability provisions” that barred individuals who had committed certain crimes or people residing with those individuals from obtaining business licenses, where none of the plaintiffs had committed the listed crimes or resided with someone who had. FW/PBS, 493 U.S. at 230-36, 110 S.Ct. 596 (plurality opinion). In East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.1995), this court concluded that the plaintiffs lacked standing to challenge certain “disabling factors” that prevented them from obtaining business licenses, such as the failure to pay fees and the commission of certain crimes, because none of those “disabling factors” applied to them, East Brooks Books, 48 F.3d at 227-28. These cases indicaté that plaintiffs may not assert third party standing in every First Amendment facial challenge; rather plaintiffs may only do so in vagueness and overbreadth challenges. Accordingly, plaintiffs lack standing to challénge any provision of Richmond’s zoning scheme inapplicable to B-3 zones.

3. Mootness

Plaintiffs appeal from the district court’s conclusion that their. claims were moot. We agree with the district court that although plaintiffs had standing to challenge those provisions of the zoning scheme that applied to B-3 zones, their claims for in-junctive and declaratory relief were rendered moot by Richmond’s enactment of the August amendment, which classified adult bookstores as principal/primary uses in 1-2 zones. That amendment permitted adult bookstores to locate in' 1-2 zones without having to obtain permission from the board of adjustments. ■ Plaintiffs do not challenge the constitutionality of the August amendment.

We review the district court’s conclusions of law with regard to mootness de novo. Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th Cir.2001). Claims become moot “when the issues presented are no longer ‘live’ or parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1978) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Plaintiffs ask this court to declare unconstitutional the zoning scheme as it existed when their license was revoked and to enjoin Richmond from enforcing that scheme. We can neither declare unconstitutional nor enjoin the enforcement of a provision that is no longer in effect.

Plaintiffs’ reliance on City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982), is misplaced. Plaintiffs cite Aladdin’s Castle for the proposition that the repeal of allegedly unconstitutional legislation does not render moot a claim for injunctive relief from its enforcement. Critical to the holding in that case, however, was the fact that legislators had publicly expressed an intention to re-enact the offending legislation. No such threat was made in this case, so the passage of the August amendment to the Development Ordinance provides sufficient assurance that the April amendment will not be re-enacted. See Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir.1997). Therefore, plaintiffs’ claims for declaratory and injunctive ' relief were properly dismissed as moot.

A Failure to State a Valid Claim for Monetary Damages

Plaintiffs’ claim for monetary damages, however, was not properly dismissed as moot, because an award of monetary damages would compensate plaintiffs for the loss of the opportunity to engage in protected expression caused by the enforcement of the zoning scheme.

Though not moot, plaintiffs’ claim for monetary damages must be dismissed for failure to state a claim upon which relief can be granted. The Constitution permits a city to require all sexually-oriented businesses to be located in a particular area within that city. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). However, a city cannot legislate adult-oriented businesses out of existence. The First Amendment requires a city to provide a reasonable opportunity for adult speech somewhere within its borders. Id.

A claim alleging that a municipal zoning ordinance unconstitutionally restricts adult businesses would have to state that the zoning ordinance provided no reasonable opportunity for adult businesses to operate anywhere within the city. Stripped of those claims over which the district court lacked subject matter jurisdiction, plaintiffs’ complaint only alleges that Richmond’s zoning scheme, as modified by the April amendment, unconstitutionally restricted their right to operate in B-3 zones. Plaintiffs cannot assert a valid claim to the effect that the scheme provided them with no reasonable opportunity to locate anywhere in Richmond.

IV.

For the foregoing reasons, the district court’s decision is affirmed.