Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 1 of 23

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1 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION FUNTANA VILLAGE, Inc., a Florida Corporation; SPINNAKER III OF PANAMA CITY BEACH, Inc., a Florida Corporation d/b/a Spinnaker; SEA WATCH OF PANAMA CITY, Inc., a Florida Corporation; NORTHSTAR PANAMA CITY BEACH, Inc., a Florida Corporation d/b/a Club LaVela; HARPOON HARRY S PC PROPERTIES, LLC, a Florida Limited Liability Company; and JOHN DOES I - IV and JANE DOES I - IV, Plaintiffs, Case No. 5:15-cv MW/GRJ THE CITY OF PANAMA CITY BEACH, a Florida Municipal Corporation, Defendant. / PLAINTIFF S RESPONSE IN OPPOSITION To Defendant s Motion for Judgment on the Pleadings As to Count III Plaintiffs, Funtana Village, etc., et.al., by and through their undersigned attorney respectfully respond to Defendant s Motion for Judgment on the Pleadings as to Count III (Doc. 26). RESPONSE TO MOTION 1. Defendant accurately describes the intent of Count III, challenging the limitation on the hours of operation of Plaintiffs businesses during the month of March, but mis-characterizes the substance of the challenged regulation, with Defendant arguing that the 1

2 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 2 of 23 Twenty-First Amendment gives it carte blanche to adopt and enforce this type of regulation (Doc. 26, p. 1). 2. Prior to the contrived controversies that began with Spring Break, 2014, the hours of operation in which Plaintiffs could present live entertainment accompanied by the inextricably intertwined component of the business model: the sale of alcoholic beverages were from 7.00 a.m. to 4.00 a.m., the following day. 3. Ordinance 1320, (Doc. 3-11), reduced the number of hours during which alcoholic beverages could be sold for the month of March, 2015, from 7.00 a.m. to 2.00 a.m., the following day. 4. Ordinance 1345-E, (Doc. 4-1), adopted on an emergency basis on April 1, 2015, extended indefinitely the shorter hours of operation established by Ordinance Ordinance 1346, (Doc. 4-3), adopted April 23, 2015, restored the hours of operation to 7.00 a.m. to 4.00 a.m. the next day, effective April 19, Ordinance 1347, (Doc. 4-4), the ordinance challenged in Count III of the First Amended Complaint, reduces the hours of operation during which alcoholic beverages can be sold, and thus the associated First Amendment protected expression presented, from 7.00 a.m. to 4.00 a.m. the following day to 7.00 a.m. to 2.00 a.m. the following day. These shorter hours represent a 9.5% diminution of speech. 7. Therefore, the City s Motion for Judgment on the Pleadings is factually incorrect when it asserts that there has been an extension of the hours of operation from a.m. to 2.00 a.m.: there has been a reduction in the hours during which alcoholic beverages can be sold, and 1 The import of this apparent retroactivity is not clear. 2

3 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 3 of 23 the supporting First Amendment speech presented from 7.00 a.m. to 4.00 a.m. the following day to 7.00 a.m. to 2.00 a.m. the following day. 8. These changes are summarized in the following table: Ordinance Period Affected Open Close Pre-controversy All year 7.00 a.m a.m. 2 Ordinance 1320 March, a.m a.m. Ordinance 1345-E April 1, 2015 indefinitely 7.00 a.m a.m. Ordinance 1346 April 19, indefinitely 7.00 a.m a.m. Ordinance 1347 Each calendar March 7.00 a.m a.m. 9. The City is also incorrect that the Twenty-First Amendment and the jurisprudence applying the Amendment authorize Ordinance 1347 as a lawful time, place and manner regulation. As will be set forth in the following Memorandum of Law, the Twenty-First Amendment jurisprudence has changed substantially in the last 20 years and Defendant s argument is hopelessly out of date. 10. Based on the foregoing, the Plaintiffs respectfully request that the Court deny Defendant s Motion for Judgment on the Pleadings as to Count III. MEMORANDUM OF LAW I. INTRODUCTORY STATEMENT THE STATUS OF THE CITY S MULTIPLE SUBMITTALS IN THIS CASE Two introductory notes are in order. First, this Motion for Judgment on the Pleadings (Doc. 26) is the third of four documents filed in response to Plaintiffs admittedly comprehensive 2 All closing times are the following day. 3 See footnote 1 and accompanying text. 3

4 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 4 of 23 complaint: Motion to Dismiss Portions of First Amended Complaint (Doc. 19), answered (Doc. 32); Answer and Affirmative Defenses to First Amended Complaint, (Doc. 20), Affirmative Defenses will be responded to forthwith; The instant Motion for Judgment on the Pleadings (Count III) by the City of Panama City Beach, Florida, (Doc. 26), answered herein; and Motion to Strike Scandalous, Impertinent, and Immaterial Portions of Plaintiffs First Amended Complaint and Alternative Motion in Limine, (Doc. 29), answer pending. Defendant thus seems to be engaging in a series of duplicative, overlapping, and procedurally impermissible attacks on the Complaint herein, which cavalierly seem to be overburdening a meaningful use of judicial resources and the resources of the Plaintiffs, all while steering the process away from an adjudication of the case on its merits. Defendant effectively admits to this course of conduct when it states that a Motion for Judgment on the Pleadings is adjudicated under the same standards as a Motion to Dismiss (Doc. 26, p. 2). Since it is Defendant s apparent understanding that a Motion to Dismiss and a Motion for Judgment on the Pleadings are subject to the same scrutiny, why were the issues raised in the instant motion not raised in the Motion to Dismiss? The most likely answer is that Defendant is attempting to exploit the resources of the Court and of Plaintiffs. It is also worth noting that this Motion for Judgment on the Pleadings is substantially, similar to, and predicated on the same outdated arguments, as Defendant s discussion of the 4

5 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 5 of 23 Twenty-First Amendment issues in its Motion to Dismiss (Doc. 19, pp ). In fact, the following cases are cited in both the Motion to Dismiss and the Motion for Judgment on the Pleadings: Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Granholm v. Heald, 544 U.S. 460 (2005); City of Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985); Fillingim v. Boone, 835 F.2d 1389 (11 th Cir. 1988); Adolph Coors Co. v. Brady, 944 F.2d 1543 (10 th Cir. 1991); E. Brooks Books, Inc. v. Shelby County, Tenn., 588 F.3d 360 (6 th Cir. 2009); Pine v. City of W. Palm Beach, FL, 762 F.3d 1262 (11 th Cir. 2014); United States v. Salerno, 481 U.S. 739 (1987). The piling on of these multiple motions appears to have been done in an effort to circumvent the word limits of the local rules. Defendant, throughout the Motion to Dismiss, includes passages that were literally copied and pasted (apparently using scissors and tape), from sources such as the ordinances at issue (e.g., Doc. 19, pp. 6, 8, 9, 17, etc.); and from the Complaint herein (e.g., Doc. 19, pp. 14, 16, 20). Defendant certifies (Doc. 19, p. 30) that the Motion and Memo comprise 7,627 words. However, Plaintiffs converted the document from PDF to Word Perfect and to MS Word and conducted word counts in those formats. The Word Perfect word count was 9,511 words and the Microsoft Word word count was 9,469. Even taking into account words excluded from the word count pursuant to Local Rule 7.1(F), (and perhaps that the word counts picking up the court stamp at the top of each page), the Motion to Dismiss still exceeded the permitted word 5

6 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 6 of 23 account by approximately 800 words or 10%. To return to the analogy of piling on, an appropriate penalty would be the denial of both of these burdensome motions. II. THE DEFENDANT S MOTION FOR JUDGMENT ON THE PLEADINGS IS PROCEDURALLY IMPERMISSIBLE AND SHOULD BE DENIED ON THAT BASIS ALONE The subject motion is either an impermissible successive motion to dismiss or a motion for summary judgment. Defendant, to its detriment, likens its Motion for Judgment on the Pleadings to a Motion to Dismiss and suggests applying the motion to dismiss standard to this motion. (Doc. 16, p. 2.) The City s position essentially concedes Plaintiffs arguments in the above section. To the extent Defendant may be correct that this Motion for Judgment on the Pleadings is akin to a Motion to Dismiss, then the issues raised in the instant Motion should have been raised in the original Motion to Dismiss (Doc. 19). Successive motions to dismiss are prohibited by the Federal Rules of Civil Procedure:... because the Federal Rules of Civil Procedure do not permit successive Rule 12(b)(6) motions to dismiss Under the circumstances in this case, we find that Thornton and Griffis' third motion to dismiss was improper and should have been dismissed by the district court. 13 For the foregoing reasons, the district court's denial of the motion for summary judgement and motion to dismiss is AFFIRMED. 13 We note that such a motion may be construed as a request for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and as such not subject to the consolidation requirements of Rule 12(g). Fed.R.Civ.P. 12(h)(2); English, [v. Dyke, 23 F.3d 1086 (6 th Cir.1994)] 23 F.3d at

7 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 7 of 23 Skrtich v. Thornton, 280 F.3d 1295, 1305, 1307 (11 th Cir., 2002). The governing rule provides: (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Rule 12(g), Fed.R.Civ.P. Thus, if the Motion for Judgment on the Pleadings is, as Defendant states, a Motion to Dismiss, it is an impermissible successive motion to dismiss. Otherwise, the motion should be treated as a Motion for Summary Judgment:... Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Id. [Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11 th Cir.2001).] In determining whether a party is entitled to judgment on the pleadings, we accept as true all material facts alleged in the non-moving party's pleading, and we view those facts in the light most favorable to the non-moving party. See Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11 th Cir.1998). If a comparison of the averments in the competing pleadings reveals a material dispute of fact, judgment on the pleadings must be denied. See Stanton v. Larsh, 239 F.2d 104, 106 (5 th Cir.1956). Perez v. Wells Fargo, 774 F.3d 1329, 1335 (11 th Cir. 2014).... Judgment on the pleadings is appropriate where no issue of material fact remains unresolved and the moving party is entitled to judgment as a matter of law. Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11 th Cir. 1999). We must accept all facts in the complaint as true and "view them in the light most favorable to the nonmoving party" here, the plaintiffs. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11 th Cir. 1998). Medsker v. Feingold, 307 Fed.Appx. 262 (11 th Cir. 11/5/08). Thus, the instant Motion for Judgment on the Pleadings is either, as Defendant suggests 7

8 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 8 of 23 with its Standard or Review argument, (Doc. 26, p 2), an impermissible successive motion to dismiss, or it is akin to a motion for summary judgment and subject to the standard of review for a motion for summary judgment. The standards for summary judgment are set forth in Rule 56, Fed.R.Civ.P.: Rule 56. Summary Judgment (a) MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT. A party may move for summary judgment, identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.... (c) PROCEDURES. (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. Rule 56, Fed.R.Civ.P. This Court s Local Rule 56.1 sets forth standards for motions for summary judgment, e.g., a statement of facts, (56.1(B)); and Pinpoint Record Citations, (56.1(F)), with which standards the motion does not comport. 8

9 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 9 of 23 Three key decisions of the Supreme Court of the United States: Matsushita Electric v. Zenith, 475 U.S. 574 (1986), Anderson v. Liberty Lobby, 477 U.S. 242 (1986) and Celotex v. Catrett, 477 U.S. 317 (1986). These standards are summarized as follows:... In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.... Celotex at 322, 323. Celotex is the case most cited in summary judgment proceedings and has been applied in the Eleventh Circuit holding that, as in summary judgment proceedings: For purposes of the Motion for judgment on the pleadings, the Court continues to accept as true the facts as alleged in Plaintiff's Amended Complaint,... Medicomp, Inc. v. United Healthcare Ins. Co. 562 Fed.Appx. 754 (11 th Cir., 2014). Thus, if the instant Motion for Judgment on the Pleadings is adjudicated as a motion for summary judgment, it fails as a matter of law, both because of its noncompliance with the rules and because genuine issues of material fact are unaddressed, particularly when the allegations of the Complaint are taken as true. The alternative, embracing Defendant s suggestion stated in its Standard or Review argument, (Doc. 26, p 2), is an impermissible successive motion to dismiss. In either case, the Motion must be denied on these procedural grounds. Assuming, arguendo, the City s motion is not procedurally impermissible, the outdated authorities relied up by the City do not support the relief requested. III. THE TWENTY-FIRST AMENDMENT JURISPRUDENCE 9

10 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 10 of 23 RELIED ON THE CITY DOES NOT SUPPORT ITS MOTION FOR JUDGMENT ON THE PLEADINGS As Plaintiffs established in their Response in Opposition to Defendant s Motion to Dismiss (Doc. 32), Twenty-First Amendment jurisprudence changed dramatically in 1995 and 1996 with the Supreme Court s decisions in Rubin v. Coors Brewing Co., 514 U.S. 476, 115 S.Ct (1995) and 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, (1996). Defendant claims to be somewhat unclear (Doc. 26, p. 6) as to the interplay between the Twenty-First and First Amendments to the Constitution of the United States. That interplay is fully set forth in the First Amended Complaint: 31. Spring Break visitors, including John Does I - IV and Jane Does I - IV, are provided public accommodations by numerous entertainment venues, including those of Plaintiffs, which offer to their patrons various forms of entertainment, all of which are protected by the First Amendment to the Constitution of the United States and by Article I, 4 of the Constitution of the State of Florida. 32. This entertainment includes live bands and solo performers offering a wide spectrum of music including rock, country, alternative, pop, electronic and hip hop genres, disk jockeys playing recorded music, karaoke, and entertainment by television personalities, all of which constitute speech protected by the First Amendment to the Constitution of the United States and by Article I, 4 of the Constitution of the State of Florida. 33. The Plaintiffs business model is comprised of an inextricably intertwined combination of the presentation of either recorded or live music performances, coupled with the responsible sale and consumption of alcoholic beverages. Plaintiffs historic and business reputation, extensive advertising efforts, investment backed expectations and business goodwill are all entirely predicated on this irreplaceable and immutable business model. Doc. 16, pp

11 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 11 of 23 The following chronology will assist the Court in tracking the dramatic changes in alcoholic beverage jurisprudence over the last 20 years, including the cases cited by Defendant in its Motion: Early regulation of alcoholic beverages, primarily allowing consumption and taxation 12/18/17 Congress passes Eighteenth Amendment 11/18/18 Volstead Act adopted, implementing Eighteenth Amendment, if ratified 1/16/19 Thirty-sixth state ratifies Eighteenth Amendment 1/17/20 Country becomes dry precluding manufacture, sale and consumption of alcoholic beverages 12/5/33 Twenty-First Amendment ratified, leaving alcoholic beverage decisions to the states Judicial Deference to state and local government regulation of alcoholic beverages 1936 Floyd (Doc. 26, p. 3) 1947 Hoffman (Doc. 26, p. 12) 1966 S. Daytona Restaurants (Doc. 26, p. 5) 1972 Wednesday Nights (Doc. 26 p. 5) 1979 Pompano Beach, (Doc. 26, pp. 3-4) 1981 New York State Liquor Authority (Doc. 26, pp.2, 3, 5) 1981 Playpen South (Doc. 26 p, 5) 1984 Capital Cities Cable (Doc. 26, p. 2) 11

12 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 12 of Daytona Beach v. Del Percio (Doc. 26, p. 3) 1987 Salerno (Doc. 26, p. 11) 1988 Fillingim (Doc. 26, p. 10) 1988 Lanier (Doc. 26, p. 10) 1988 Frisby (Doc. 26, p. 12) 1989 Ward (Doc. 26, pp. 7, 9) 1995 Judicial Deference Questioned: Rubin v. Coors 1996 Judicial Deference Rejected: 44 Liquormart (Doc. 26, pp. 6-7) 1996 Sammy s (Doc. 26, p. 11) 1997 Schenck (Doc. 26, p. 11) 1999 One World Family (Doc. 26, pp. 9, 13) 1999 Smith (Doc. 26, p. 12) South Atlantic (Doc. 26, pp. 7-8) 2004 Burk (Doc. 26, p. 8) 2004 Café Erotica (Doc. 26, p. 7) 2005 Granholm (Doc. 26, p. 2) 2005 Solantic (Doc. 26, p. 8) Newsstand (Doc. 26, p. 13) 2011 Masciandaro (Doc. 26, p. 11) 2012 Village of North Palm Beach (Doc. 26, p. 5) 2014 Pine (Doc. 26, p. 7) 2014 Wright (Doc. 6, p. 9). 12

13 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 13 of 23 In Rubin v. Coors, the Court invalidated a Federal regulation prohibiting breweries from stating the alcohol content of their beer on the beer labels. The Court 4 held: The remaining Central Hudson [Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980)] factors require that a valid restriction on commercial speech directly advance the governmental interest and be no more extensive than necessary to serve that interest. We have said that "[t]he last two steps of the Central Hudson analysis basically involve a consideration of the fit between the legislature's ends and the means chosen to accomplish those ends." Posadas, [de Puerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328, (1986) supra, at 341. The Tenth Circuit found that 205(e)(2) failed to advance the interest in suppressing strength wars sufficiently to justify the ban. We agree. Just two Terms ago, in Edenfield v. Fane, 507 U.S. 761 (1993), we had occasion to explain the Central Hudson factor concerning whether the regulation of commercial speech "directly advances the governmental interest asserted." Central Hudson, 477 U.S., at 566. In Edenfield, we decided that the Government carries the burden of showing that the challenged regulation advances the Government's interest "in a direct and material way." 507 U.S., at 767. That burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Id., at We cautioned that this requirement was critical; otherwise, "a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression." Id., at 771. Rubin v. Coors, at Of course, the entertainment offered by Plaintiffs is entitled to greater protection than the commercial speech at issue in Rubin:... commercial speech can be subject to greater governmental regulation than noncommercial speech. See, e.g., Bolger, 463 U.S., at 81, 103 S.Ct., at 2888 (STEVENS, J., concurring in judgment) ( [T]he commercial aspects of a message may provide a justification for regulation that is not present when the communication has no commercial character ); Ohralik v. Ohio State Bar Assn., 436 U.S., at , 98 S.Ct., at 1918 (commercial speech, unlike other varieties of speech, occurs in an area traditionally subject to government regulation ). 4 Justice Thomas writing for the entire Court except for Justice Stevens who concurred separately. 13

14 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 14 of 23 City of Cincinnati v. Discovery Network, 507 U.S. 410, 425 (1993). Thus, it is beyond dispute, that the entertainment offered by Plaintiffs is subject to greater protection than the commercial speech discussed in the preceding cases: However, the right to play music, including amplified music, in public fora is protected under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, (1989) (noting that regulation of amplified music in public park was protected by the First Amendment); Saia v. New York, 334 U.S. 558, 562 (1948) ( The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights. ). This right, nevertheless, is subject to reasonable limitations on the time, place, and manner of the protected speech. Limitations are reasonable if they are justified without reference to the content of the regulated speech,... narrowly tailored to serve a significant governmental interest, and... leave open ample alternative channels for communication of the information. Ward, 491 U.S. at 791. If the time, place, and manner of the limitations are content based, a strict standard of scrutiny is applied. See, e.g., Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006). State v. Catalano, 104 So.3d 1069, 1078 (Fla. 2012). If the regulations on commercial speech described above are unconstitutional, then clearly so too must be the Panama City Beach regulations challenged herein be found unconstitutional. Building on Rubin, and actually overruling Posadas, the Court in 44 Liquormart considered Rhode Island s ban on including the price of alcoholic beverages in advertising materials. In a plurality opinion, the Court reiterated the need for a reasonable fit between the problem being addressed and the solution adopted. The Court specifically declined to continue the deference formerly accorded to enactments under the Twenty-First Amendment. In the instant case, there is no fit between the Ordinance 1347 and the purported desire of the City to cure the alleged Spring Break ailments. In 44 Liquormart, the Court held: Because the 5-to-4 decision in Posadas [de Puerto rice Associates v. Tourism 14

15 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 15 of 23 Co. of P.R., 478 U.S. 328 (1986)] marked such a sharp break from our prior precedent, and because it concerned a constitutional question about which this Court is the final arbiter, we decline to give force to its highly deferential approach Liquormart at 509, (Justice Stevens for the Plurality, joined by Kennedy, Thomas and Ginsburg). Justice O Connor, joined by Chief Justice Rehnquist and Justices Souter and Breyer, rather than joining the plurality on the legislative deference issue, enunciated an even greater determination not to defer to the legislature in considering the purpose and efficacy of regulations in derogation of the First Amendment: The Court [in Posadas] accepted as reasonable the legislature s belief that the regulation would be effective, and concluded that... the restriction was narrowly tailored to serve Puerto Rico s interest. 478 U.S. at The Court accepted without question Puerto Rico s account of the effectiveness and reasonableness of its speech restriction. Respondent ask us to make a similar presumption here to uphold the validity of Rhode Island s law. It is true that Posadas accepted as reasonable, without further inquiry, Puerto Rico s assertions that the regulations furthered the government s interest and were no more extensive than necessary to serve that interest. Since Posadas, however, this Court has examined more searchingly the State s professed goal, and the speech restriction put into place to further it, before accepting a State s claim that the speech restriction satisfies First Amendment scrutiny. See, e.g., Florida Bar v. Went For It, 515 U.S. [618] 1995; Rubin v. Coors Brewing Co., 514 U.S. [476] (1995); Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. [136] (1994); Edenfield v. Fane, 507 U.S. 761 (1993); Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). In each of these cases we declined to accept at face value the proffered justification for the State s regulation, but examined carefully the relationship between the asserted goal and the speech restriction used to reach that goal. The closer look that we have required since Posadas comports better with the purpose of the analysis set out in Central Hudson [Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 577 (1980)], by requiring the state to show that the speech restriction directly advances its interest and is narrowly tailored.... Id., at

16 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 16 of 23 Thus, four Justices have rejected the legislative deference found in Posadas, and four others would, requir[e] the state to show that the speech restriction directly advances its interest and is narrowly tailored and require the Court to examine[d] more searchingly the State s professed goal, and the speech restriction put into place to further it, before accepting a State s claim that the speech restriction satisfies First Amendment scrutiny. As in 44 Liquormart, in the instant case, there is a co-mingling of First Amendment protected speech and the effort to regulate alcoholic beverages through draconian provisions that vastly exceed the simple sale and consumption of alcoholic beverages. With respect to the post-44 Liquormart cases cited by Defendant, none of them compel the result Defendant seeks, including Granholm v. Heald, 544 U.S. 460 (2005). While Granholm contains the dicta that the City argues, its core holding is what is critical to this Court s evaluation of this case: Our more recent cases, furthermore, confirm that the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that States may not give a discriminatory preference to their own producers.... First, the Court has held that state laws that violate other provisions of the Constitution are not saved by the Twenty-first Amendment. The Court has applied this rule in the context of the First Amendment, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); the Establishment Clause, Larkin v. Grendel s Den, Inc., 459 U.S. 116 (1982); the Equal Protection Clause, Craig, [v, Boren 429 U.S. 190 (19760] supra, at ; the Due Process Clause, Wisconsin v. Constantineau, 400 U.S. 433 (1971); and the Import-Export Clause, Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964). Granholm at [Emphasis Added] In Village of North Palm Beach v. S&H Foster's, Inc., 80 So.3d 433 (Fla. 4 th DCA 2012), 16

17 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 17 of 23 the Court observed, The Pub does not directly challenge the liquor sales ordinance. Instead, the Pub challenges the annexation ordinance.... (at 438.) Thus, any discussion of alcoholic beverages in this case is, at best, dicta. And because North Palm Beach is not an alcoholic beverage case, of course it does not mention 44 Liquormart. With respect to Defendant s alternative avenues of communication cases, i.e., Pine v. City of West Palm Beach, 762 F.3d 1262 (11 th Cir. 2014); and Café Erotica v. St. Johns County, 360 F.3d 1274 (11 th Cir. 2004), the former was a noise issue, regarding picketing at an abortion clinic. The latter was a sign case. Obviously, neither deals with alcoholic beverages or protected speech in the context of entertainment, therefore, these authorities are simply inapplicable to the matter before the Court South Atlantic Blvd., v. City of Fort Lauderdale, 239 F.Supp.2d 1265 (S.D. Fla. 2002), while seemingly on point, does not analyze the regulation challenged therein under 44 Liquormart. Further, and especially at this stage of the proceedings, Plaintiffs have alleged (e.g., Doc. 16, 69, 70, 146, 147, 148, 152, 153, ), that the City s Spring Break controls, including Ordinance 1347, are content-based. In contrast, the ordinances at issue in 219 South Atlantic were acknowledged as being content-neutral, a key distinction from the instant case. Additionally, 219 South Atlantic involved a motion for summary judgment. As is required in considering a motion for summary judgment, accepting the allegations in the complaint as true, Ordinance 1347 is simply not susceptible to review using the vehicle of a Motion for Judgment on the Pleadings. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11 th Cir., 2005); Burk v. Augusta-Richmond County, 365 F.3d 1247 (11 th Cir., 2004); and Wright v. City of St. Petersburg, 17

18 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 18 of WL (M.D. Fla. 2014) cited for the proposition that Ordinance 1347 is content neutral are cited accurately. The missing component in these decisions is that none of these cases addresses the fit that must be shown between the legislature's ends and the means chosen to accomplish those ends, now required to demonstrate that laws, such as Ordinance 1347, are constitutional. The same is true of One World One Family Now v. City of Miami Beach, 175 F.3d 1282 (11 th Cir. 1999), which was also cited to support the proposition that Ordinance 1347 is content neutral. Defendant s discussion of the case following theses citations of authority illustrates the problem with the procedural posture of Defendant s Motion for Judgment on the Pleadings:... the City passed 1347 to address public safety concerns created by the critical mass of young visitors engaging in sustained and prolonged consumption of alcohol into the early morning hours which occurs during the month of March. [Doc. 4-4]. The City found that the early morning consumption of alcohol (between 2:00 AM and 4:00 AM) creates volatile and potentially dangerous situations in parking lots and other places difficult to police; that the closure of bars at 4:00 AM filled the streets with students under the influence of alcohol who were made venerable [sic] by their condition and their unfamiliarity with their surroundings often creating opportunities for the students to be preyed upon by others; and that minors congregating outside establishments and soliciting strangers in the early morning hours to engage in the illegal purchase of alcohol were at particular risk of harm. [Id.] Doc. 26, p. 10. If the Motion for Judgment on the Pleadings is not an impermissible successive motion to dismiss, then it is akin to a motion for summary judgment. And, if it is akin to a motion for summary judgment, where are the affidavits and depositions to substantiate the City s claims cited above? No supporting affidavits or depositions have been submitted to support the City s Motion. It is, therefore, either an impermissible successive motion to dismiss or an inadequate 18

19 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 19 of 23 motion for summary judgment. Simply stated, the City s Motion for Judgment on the Pleadings must be denied on the basis of both the substantive and procedural grounds explained above. Finally, returning to the post- Rubin and 44 Liquormart cases cited by the City, Schenck v. Pro-Choice Network W. New York, 519 U.S. 357 (1997); and U.S. v. Masciandaro, 638 F.3d 458 (4 th Cir., 2011), (Doc. 26, p. 11), these cases are again generally accurately portrayed. Again, however, they do not address the fit required by Rubin and 44 Liquormart. In addition, it is critical to note that Sammy s of Mobile v. City of Mobile, 928 F.Supp.2d 1116 (S.D. Ala. 1996) has been overtaken by later Eleventh Circuit precedent. The underlying rationale, critical to the Sammy s decision, and the toothless deference embodied in the Sammy s decision was later exposed and discredited in the Peek a Boo [I] Lounge case:... Additionally, in deciding whether Ordinance is narrowly tailored to serve a substantial government interest, we must apply the evidentiary requirement described in Renton [v. Playtime Theaters, Inc., 475 U.S. 41 (1986)] and clarified by the Court in Alameda Books. According to this requirement, the County, when enacting the ordinance, must have relied on evidence it reasonably believed to be relevant to the problem of secondary effects. Renton, 475 U.S. at Further, the County s evidence must fairly support [its] rationale and plaintiffs challenging the ordinance must be given opportunity to cast direct doubt on this rationale with evidence of their own. Alameda Books, 122 S.Ct. at In this case, it is unnecessary to perform the first two steps of the Renton analysis, because even if we were to decide that Ordinance is a valid time, place, and manner regulation that is properly subject to intermediate scrutiny, the record reveals that the Manatee County Board of County Commissioners, when enacting Ordinance 98-46, failed to rely on any evidence whatsoever that might support the conclusion that the ordinance was narrowly tailored to serve the County s interest in combating secondary effects. Renton stands in part for the proposition that a municipality enacting a zoning ordinance targeting secondary effects must rely upon evidence it reasonably believes to be relevant for this purpose at the time of enactment. This is the clear implication of the Court s holding that [t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies 19

20 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 20 of 23 upon is reasonably believed to be relevant to the problem that the city addresses. Renton, 475 U.S. at (emphasis added). Because the County failed to rely on any evidence linking the passage of Ordinance to the prevention of secondary effects, it cannot be said that the County has satisfied even Renton s weak condition that it rely on evidence reasonably believed to be relevant to the problem of secondary effects or Alameda Books condition that its evidence fairly supports [its] rationale for enacting its ordinance. Instead, based on the record before us, we conclude that the County has not met its burden to show that Ordinance was narrowly tailored to serve the County s interest in combating secondary effects. Peek a Boo Lounge [I] v. Manatee County, 337 F.3d 1251, 1266 (11 th Cir. 2003), [Emphasis in Original]. 5 Further, Fifth Circuit precedent: J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, (5 th Cir. 1998) holds that preambulatory clause[s] do not serve as specific legislative findings prior to enactment. So Sammy s does not help the City save Ordinance Again, Defendant s remaining post- Rubin and 44 Liquormart citations on narrow tailoring and alternative avenues of communication: Smith v. City of Fort Lauderdale, Fla., 177 F.3d 954 (11 th Cir. 1999), One World, supra and 84 Video/Newsstand v. Sartini, 455 Fed.Appx. 541 (6 th Cir. 2011), are generally presented in an accurate fashion, but continue to ignore the requirement of Rubin and 44 Liquormart for a fit between the regulation and a legitimate governmental interest. Overlooked by Defendant in its Motion for Judgment on the Pleadings are two recent hours of operation cases in the context of sexually-oriented Adult Uses, including one dealing with nude dance, which is only within the outer perimeter of First Amendment protection, 6 5 Plaintiffs acknowledge that later Eleventh Circuit cases have arguably relaxed the already low standard for evidence in this context, but Peek a Boo I s requirement for pre-enactment evidence remains the law of the circuit. 6 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), nude dancing of the kind sought to be performed here is expressive 20

21 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 21 of 23 compared to the core speech presented by Plaintiffs entertainers. In Northshor Experience v. The City of Duluth, 442 F.Supp.2d 713 (D. Minn. 2006), the Court credited Plaintiffs land use planner, R. Bruce McLaughlin s evidence, that the only Adult Use study which dealt with hours of operation, did not support restrictions on the hours of operation of sexually-oriented Adult Uses and invalidated those regulations: Plaintiffs assert that the Statute's restrictive hours of operations censor adult entertainment speech because the majority of patrons of adult entertainment establishments patronize them between midnight and 3:30 a.m. and an adult entertainment establishment would fail if subject to the Statute's time restrictions. (See Wise Aff. 7 9; Peterson Aff. 9.) The parties have presented no legislative history indicating that the hours of operation restriction is necessary to combat adverse secondary effects. Only one study of the hours of operation of adult entertainment establishments has been cited to the Court, and that Phoenix, Arizona study does not support the time restrictions contained in the Statute. (McLaughlin Aff ) Northshor Experience at 719. In Annex Books III, the Court also invalidated an hours of operation provision that applied to adult bookstores: What is the difference between preventing a newspaper from selling paper copies on Sunday (or before 10 a.m.) and preventing an adult bookstore from selling paper copies on Sunday (or before 10)? Not secondary effects: the harms to third parties caused by a newspaper likely exceed those caused by an adult bookstore. The difference lies in the content of the reading material. Indianapolis likes G-rated newspapers but not sexually oriented books, magazines, and movies. Yet neither Alameda Books nor Playtime Theatres [City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986)] permits units of government to stop the distribution of books because their content is objectionable, unless the material is obscene. See also, e.g., United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ( crush videos cannot be suppressed) American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (7 th Cir.1985), affirmed summarily, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986) (material that is pornographic, but not obscene, cannot be conduct within the outer perimeters of the First Amendment, though we view it as only marginally so. at

22 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 22 of 23 suppressed). Indianapolis does not contend that any of the plaintiffs sells obscene material it follows that objection to the plaintiffs stock in trade cannot justify closure. Annex Books [III] v. City of Indianapolis, 740 F.3d (7 th Cir. 2014). Further, in the Eleventh Circuit, evidence used to support the suppression of First Amendment protected speech must be provided pre-enactment: Peek a Boo, supra:... However, this Court has consistently interpreted Renton to require pre-enactment evidence,....at In the instant case, the only pre-enactment evidence on hours of operation is from the same Mr. McLaughlin whose evidence was persuasive in Northshor Experience: that shortening hours of operation did not achieve the City s stated goal of reducing problems allegedly associated with Spring Break. Again, a legitimate analysis of the merits of this eviscerates the granting of the City s Motion for Judgment on the Pleadings. CONCLUSION Based on the foregoing facts and authorities, defendant s Motion for Judgment on the Pleadings as to Count III should be denied and defendant required to file an answer to the entire complaint. CERTIFICATE OF COMPLIANCE WITH (REVISED) LOCAL RULE 7.1(F) The undersigned certifies that the forgoing Response and Memorandum of Law (combined) comply with Local Rule 7.1(F) because they contains only 6,623 words. Dated December 21, 2015 Respectfully submitted, /s/ Luke Lirot Luke Lirot, Esquire Florida Bar Number Luke Charles Lirot, P.A. 22

23 Case 5:15-cv MW-GRJ Document 37 Filed 12/21/15 Page 23 of 23 CERTIFICATE OF SERVICE 2240 Belleair Road, Suite 190 Clearwater, Florida Telephone: (727) Facsimile: (727) Alternate addresses: Attorney for Plaintiffs I HEREBY CERTIFY that on December 21, 2015, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all parties in this case. /s/ Luke Lirot Luke Lirot, Esquire Florida Bar Number