University Books & Videos, Inc. v. Metropolitan Dade County

930 F. Supp. 1534, 1996 U.S. Dist. LEXIS 10749, 1996 WL 413574
CourtDistrict Court, S.D. Florida
DecidedJuly 3, 1996
DocketNos. 96-0952-CIV, 96-0962-CIV, 96-0995-CIV, 96-0996-CIV, 96-1139-CIV, 96-1141-CIV, 96-1143-CIV, 96-1339-CIV, 96-1140-CIV, 96-1338-CIV and 96-1337-CIV
StatusPublished
Cited by1 cases

This text of 930 F. Supp. 1534 (University Books & Videos, Inc. v. Metropolitan Dade County) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
University Books & Videos, Inc. v. Metropolitan Dade County, 930 F. Supp. 1534, 1996 U.S. Dist. LEXIS 10749, 1996 WL 413574 (S.D. Fla. 1996).

Opinion

ORDER DENYING PLAINTIFFS’ MOTION TO REMAND

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon the Motions to Remand filed by Plaintiffs in these consolidated cases. Defendants filed an omnibus response on June 24, 1996. Oral argument was held on June 27, 1996.

I. Factual and Procedural Background

Plaintiffs, various “adult” bookstores and their individual patrons, challenge the constitutionality of Dade County Ordinance 96-13 (“Ordinance”), which regulates establishments that disseminate sexually-oriented materials. Among other things, the Ordinance requires open entranceways and video booths, establishes minimum lighting requirements, and imposes civil and criminal penalties for violations of the Ordinance.

Plaintiffs filed complaints for injunctive and declaratory relief in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Five of the cases were assigned to the Honorable Murray Goldman. (Pl.Mot.Par. 3.) On April 15, 1996, Judge Goldman entered an agreed Order whereby Defendants were enjoined from enforcing the Ordinance until Judge Goldman could conduct a plenary hearing on Plaintiffs’ Motions for Temporary Injunction. (Pl.Mot.Par. 3.) In the interim, Defendants removed the cases. The cases were eventually transferred to this division of Court, where they were consolidated with the lead case, University Books and Videos, Inc. d/b/a University Books v. Metropolitan Dade County, Case No. 96-0952-CIV-KING.

Plaintiffs argue that the presence of complex and significant issues of state constitutional law militates in favor of remand. Specifically, they contend that their claims are grounded in the right to privacy explicitly afforded by the Florida Constitution, and being expanded by Florida courts. Fla. Const. Art. I Sec. 23; see BB v. State, 659 So.2d 256, 258-59 (Fla.1995) (relying on Section 23 to invalidate statute that criminalized consensual sexual intercourse between minors); Singletary v. Costello, 665 So.2d 1099, 1103 (Fla.Dist.Ct.App.1996) (holding that state prisoner is entitled to refuse medical treatment). Defendants dispute this characterization of Plaintiffs’ Complaints, arguing that adjudication in the federal forum is appropriate because the majority of the claims pose challenges based on the First Amendment to the United States Constitution.

II. Analysis

At oral argument, Plaintiffs correctly noted that the remand and abstention doctrines require different analysis. So, too, does the standard of review differ. A court’s decision to remand a ease is insulated from review, while a court’s application of the abstention doctrine is reviewable for abuse of discretion. However, a federal court’s improper retention of a removed case is reviewable. See Hill v. Marston, 13 F.3d 1548, 1551 (11th Cir.1994). Without regard to re-viewability, the Court concludes that the abstention doctrine, in any of its formulations, is inapplicable here.

Plaintiffs first rely on Pullman abstention, which allows a federal court to ab[1536]*1536stain if faced with adjudication of an unsettled issue of state law, which issue would be dispositive of the case or would avoid or substantially modify the constitutional question. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 497-99, 61 S.Ct. 643, 644, 86 L.Ed. 971 (1941); Duke v. James, 713 F.2d 1506, 1510 (11th Cir.1983).

The crux of Plaintiffs’ argument is that Pullman abstention is warranted “[i]n light of the broad expansion of state right to privacy concepts ..., the recurring percolation of this claim in Florida courts, and its potential pending resolution by the State Supreme Court in [Bordo, Inc. v. Board of County Comm’rs, Broward County ]. Plaintiffs’ reliance on the pendency of Bordo is misplaced. The question certified therein is as follows:

Is an ordinance that requires modifications to only the interior structure of a btdlding an ordinance that “affects the use of land” within the meaning of Section 125.66, Florida Statutes?

The object of local government regulation— “adult” establishments — is the samé in Bordo and in the instant cases. The legal issue is not. In summarizing their argument before the Florida Supreme Court, the Bordo petitioners begin by challenging the procedural validity of the Broward County ordinance, alleging that it was not enacted in compliance with the notice and public hearing requirements of the Florida Statutes. (Def.Ex. B. at 7.) The petitioners also claim that the ordinance constitutes an unconstitutional infringement on their First Amendment rights by granting the government unfettered discretion in the licensing of adult entertainment businesses. (Def.Ex. B. at 7.)

Plaintiffs urge the Court to follow the lead of Judge Nesbitt, who relied on Pullman and Bordo to abstain from exercising jurisdiction over Bordo, then captioned Int’l Eateries of America v. Bd. of County Comm’rs, Broward County, 838 F.Supp. 580 (S.D.Fla.1993). Judge Nesbitt succinctly summarized the issue: “[This] ease involves the construction of a local ordinance in connection with multiple provisions of the state’s statutory code governing land use and zoning and with multiple provisions of the State Constitution governing matters such as notice of public meetings and privacy.” Int’l Eateries, 838 F.Supp. at 586. Although Judge Nesbitt recognized that the state right to privacy might be one factor in adjudication of the claims, her characterization of the issues before her belies Plaintiffs’ claims that a ruling in Bordo would extinguish the instant cases.

Moreover, Plaintiffs appear to have belatedly appreciated the importance of their state law privacy claim. Having reviewed the Complaints in light of the parties’ arguments, the Court concludes that the state law privacy claim would not substantially modify or moot the First Amendment issues with which the Complaints abound. For example, Plaintiffs begin by asserting that their “activities and operations ... are forms of speech and expression protected under the First Amendment.” (Compl.Par. 14.) Plaintiffs term the Ordinance a “Prior Restraint/Unreasonable Time, Place and Manner Restriction” (Count I). Multiple definitions contained in the Ordinance are said to be “arbitrary and overbroad” or “arbitrary, vague and overbroad.” (Counts II-VTII). The Court is satisfied that the application of Pullman abstention is unwarranted here.

Plaintiffs further argue that these cases are amenable to disposition under the Bur-ford doctrine, which sets forth certain circumstances in which a federal court must decline to interfere with the proceedings or orders of state administrative agencies. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct.

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Related

University Books v. Miami-Dade Cty
163 F.3d 1359 (Eleventh Circuit, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
930 F. Supp. 1534, 1996 U.S. Dist. LEXIS 10749, 1996 WL 413574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-books-videos-inc-v-metropolitan-dade-county-flsd-1996.