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EROTICA / WE DARE TO BARE / ADULT TOYS/ GREAT. FOOD / EXIT 94, INC. ON PETITION INVOKING DISCRETIONARY JURISDICTION. TO REVIEW THE ...

IN THE SUPREME COURT OF FLORIDA CAFÉ EROTICA / WE DARE TO BARE / ADULT TOYS / GREAT FOOD / EXIT 94, INC., Petitioner,

CASE NO.: SC03DCA CASE NO.:

vs.

1D02-1267

FLORIDA DEPARTMENT OF TRANSPORTATION, Respondent. /

BRIEF ON JURISDICTION OF PETITIONER CAFÉ EROTICA / WE DARE TO BARE / ADULT TOYS/ GREAT FOOD / EXIT 94, INC.

ON PETITION INVOKING DISCRETIONARY JURISDICTION TO REVIEW THE DECISION OF THE FIRST DISTRICT COURT OF APPEAL

GARY S. EDINGER, Esquire Florida Bar No.: 0606812 305 N.E. 1st Street Gainesville, Florida 32601 (352) 338-4440 337-0696 (Fax) Attorney for Petitioner

TABLE OF CONTENTS Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..i TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiv PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . . . . 1-2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-9 I. THIS COURT HAS JURISDICTION UNDER RULE 9.030(a)(2)(A)(i), FLA.R.APP.P. BECAUSE THE DISTRICT COURT EXPRESSLY (AND INCORRECTLY) UPHELD A STATE STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 II. THIS COURT HAS JURISDICTION UNDER RULE 9.030(a)(2)(A)(iv), FLA.R.APP.P. BECAUSE THE OPINION BELOW CONFLICTS WITH THE SUPREME COURT DECISION OF FW/PBS, INC. V. CITY OF DALLAS, 493 U.S. 215, 110 S.Ct. 596 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-8 THIS COURT HAS JURISDICTION UNDER RULE III. 9.030(a)(2)(A)(ii), FLA.R.APP.P. BECAUSE THE OPINION BELOW DIRECTLY CONSTRUED THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF CITATIONS Page

CASES Café Erotica, Inc. v. St. Johns County, Case No.: 98-597-CIV-J-21HTS (M.D. Fla. Dec. 4, 2002)

(Memorandum Opinion and Final Judgment) . . . . . . 5, 5 n. 2, 7 n. 3, 9

Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. Department of Transportation So.2d

, 2002 WL 31887720 (Fla. 1st DCA 2002) . . . . . . . . . 1, 8

Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. Department of Transportation Case No.: SC02-2515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n. 1

Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. Department of Transportation Case No.: SC02-2547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n. 1

Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. St. Johns County, iii

143 F.Supp.2d 1331 (M.D. Fla. 2001) . . . . . . . . . . . . . 3, 5, 7 n. 3, 8, 9

Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734 (1965) . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 7

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990) . . . . . . . . . . . . . . . . . i, 3, 5, 6, 7, 9

Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Sugarman v. Village of Chester, 192 F.Supp.2d 282 (S.D. N.Y. 2002) . . . . . . . . . . . . . . . . . . . 5, 6, 7, 9

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CONSTITUTIONS, STATUTES AND RULES Page U.S. CONST. AMEND. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

FLA. CONST., Art. V, §3(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

§316.2045, Fla.Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..5

§479.07, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4

§479.08, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4

Rule 14-10.004, F.A.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4

Rule 14-10.006, F.A.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4

Rule 9.030(a)(2)(A)(i), Fla.R.App.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, v

4

Rule 9.030(a)(2)(A)(ii), Fla.R.App.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 8

Rule 9.030(a)(2)(A)(iv), Fla.R.App.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 6

Rule 9.210(a)(2), Fla.R.App.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PREFACE The Petitioner Café Erotica is the Appellant below and the owner of the sign in question. The Respondent Agency, Department of Transportation, is the Appellee below.

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STATEMENT OF THE CASE AND FACTS Petitioner erected a billboard on property it leases in St. Johns County, Florida to advertise its hunting and fishing camp. The Department of Transportation cited the Petitioner for failing to obtain an outdoor advertising permit. Petitioner maintained that the sign was exempt from state permitting requirements because it advertised an on-premises business. Petitioner sought a formal administrative hearing. The Administrative Law Judge entered a Recommended Order in favor of Café Erotica. The Department of Transportation rejected the ALJ’s Recommended Order and entered a Final Order finding Café Erotica to be in violation of the statutes for failing to obtain an outdoor advertising permit. Cafe Erotica filed a timely appeal to the First District Court of Appeal. In addition to challenging the Agency Order, Cafe Erotica argued on appeal that §§479.07 and 479.08, Fla.Stat. and Rules 14-10.004 and 14-10.006, F.A.C. were facially unconstitutional prior restraints on free speech. The First District of Court Appeal affirmed the Agency Order and held that the challenged statues and rules were not unconstitutional under the First Amendment. See, Cafe Erotica/We Dare to Bare/Adult Toys, etc. v. Dep't of Transp.,

So.2d

, 2002 WL

31887720 (Fla. 1st DCA Dec. 30, 2002). While Café Erotica believes that the Agency should not have rejected the Administrative Law Judge’s well-reasoned Recommended Order, that is not the asserted basis for invoking the jurisdiction of this Court. Rather, jurisdiction is appropriate because the First District Court of Appeal erroneously upheld the subject statutes and rules against a constitutional challenge. This Petition for discretionary review is timely filed.1 1

There are two companion case involving the same litigants and the same constitutional issues already pending before this Court. See, Café Erotica / We Dare to Bare, etc v. Florida Department of Transportation, Case No.: SC02-2515; Cafe Erotica / We Dare to Bare, etc. v. Department of 1

SUMMARY OF ARGUMENT Café Erotica challenged sections 479.07 and 479.08 of the Florida Statutes and Rules 14-10.004 and 14-10.006 of the Florida Administrative

Code

on

the

grounds

that

they

imposed

an

unconstitutional prior restraint in violation of the First Amendment to the United States Constitution. The statutes and regulations require that one obtain a permit before engaging in outdoor advertising – a form of commercial speech. The United States Supreme Court ruled in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990) that certain procedural safeguards (the “Freedman requirements”) must accompany licensing decisions affecting commercial free speech interests. In this instance, the Florida statutes fail to provide a specified brief period of time within which the permitting decision must be rendered. Furthermore, the statutes do not guarantee prompt access to the courts because a referral is made in the first instance to a hearing officer with no jurisdiction over constitutional claims.

The District Court of Appeal

failed to follow FW/PBS when it ruled that prior restraint analysis is inapplicable to a content-neutral permitting scheme. Federal courts have ruled otherwise. See, e.g., Cafe Erotica / We Dare to Bare / Adult

Transportation, SC02-2547. 2

Toys / Great Food / Exit 94, Inc. v. St. Johns County, 143 F.Supp.2d 1331 (M.D. Fla. 2001).

3

ARGUMENT I.

THIS COURT HAS JURISDICTION UNDER RULE 9.030(a)(2)(A)(i), FLA.R.APP.P. BECAUSE THE DISTRICT COURT EXPRESSLY (AND INCORRECTLY) UPHELD A STATE STATUTE. This Court has jurisdiction under Art. V, §3(b)(3), FLA. CONST. and Rule

9.030(a)(2)(A)(i), Fla.R.App.P. as the District Court of Appeal expressly declared valid certain Florida statues and administrative rules. In particular, the Court below specifically determined that sections 479.07 and 479.08 of the Florida Statutes and Rules 14-10.004 and 14-10.006 of the Florida Administrative Code survived constitutional attack because those laws did not impose an unconstitutional prior restraint. The courts in this country have no greater purpose than to construe and enforce the individual rights guaranteed to the citizens by the United States Constitution. In this case, the statutes at issue directly infringe upon a citizen’s First Amendment right to communicate a message through outdoor advertising (i.e. the use of billboards). While the federal courts have regularly stricken sign permitting schemes as unconstitutional prior restraints, this is a case of first impression in the Florida courts. At the most basic level, this case presents the question of whether a content-neutral law which requires a permit before one may engage in outdoor advertising must include certain procedural safeguards in order to pass constitutional muster. However, a decision in this case will have a much broader 4

impact on free speech. That is because the permitting procedures utilized for outdoor advertising laws are comparable to those employed in a variety of settings affecting diverse categories of speech at both the state and local level. See, e.g., §316.2045, Fla.Stat.

(permit required for solicitations along

roadways). A decision here will determine how free our speech truly is in many other situations. Cafe Erotica maintains that the decision in this case is controlled by FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990), which governs the interplay between the First Amendment and commercial licensing or permitting systems. Most courts evaluating sign permitting laws have applied FW/PBS with great rigor and struck down ordinances which failed to provide the necessary Freedman protections. See, e.g., Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. St. Johns County, 143 F.Supp.2d 1331 (M.D. Fla. 2001); Café Erotica, Inc. v. St. Johns County, Case No.: 98597-CIV-J-21HTS (M.D. Fla. Dec. 4, 2002);2 Sugarman Chester,

192 F.Supp.2d 282

v.

Village of

(S.D. N.Y. 2002); Desert Outdoor

Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814 (9th Cir. 1996). Cafe Erotica’s briefing in the District Court of Appeal demonstrated exactly why the State’s permitting scheme does not meet constitutional

2

An Order and Final Judgment was entered in the latter Café Erotica case on December 4, 2002. This case has not yet been reported. Copies of the Order and Judgment have been filed separately as supplemental authority. 5

standards. These arguments can be described as a failure to specify time limits and a failure to provide judicial access. The statutes do not guarantee that the speech activity will be allowed if no permitting decision is made within the nominal 30 day period mentioned in the statute. Compare, Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994); Sugarman, supra; Café Erotica / We Dare to Bare, supra. More importantly, the statutes do not guarantee prompt access to the courts to review an adverse permitting decision. Instead, a citizen is compelled to participate in administrative proceedings which might last for months or years before he is allowed contact with a Judge. This Court should assume jurisdiction over this case because important constitutional issues are presented in a context where case law has been conflicting and unprincipled. II.

THIS COURT HAS JURISDICTION UNDER RULE 9.030(a)(2)(A)(iv), FLA.R.APP.P. BECAUSE THE OPINION BELOW CONFLICTS WITH THE SUPREME COURT DECISION OF FW/PBS, INC. V. CITY OF DALLAS, 493 U.S. 215, 110 S.Ct. 596 (1990). As noted above, Cafe Erotica maintains that this case is controlled by

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990). While FW/PBS involved permitting of adult entertainment establishments, courts have recognized that the case has far broader application to all licensing laws affecting commercial speech. Indeed, other courts have specifically applied FW/PBS to sign permitting laws of the kind at issue here. See, Sugarman, 6

supra; Café Erotica / We Dare to Bare, supra.3 It should also be noted that the sign in question is located on private property and is not erected in a government forum, public or otherwise. The District Court erred badly in concluding that the Freedman procedural safeguards do not apply where the licensing law is content-neutral. The law at issue in FW/PBS was undoubtedly content-neutral, yet the Supreme Court did not hesitate to strike the ordinance as an unconstitutional prior restraint. The Court specifically stated that: Because we conclude that the city's licensing scheme lacks adequate procedural safeguards, we do not reach the issue decided by the Court of Appeals whether the ordinance is properly viewed as a content-neutral time, place, and manner restriction aimed at secondary effects arising out of the sexually oriented businesses. 493 U.S. at 223. Likewise, the injunction against the St. Johns County sign ordinance did not turn on the content-neutrality of the law. See, Cafe Erotica / We Dare to Bare, 143 F.Supp.2d at 1335. It is appropriate for this Court to assert its jurisdiction to correct the 3

While the case of Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. St. Johns County, 143 F.Supp.2d 1331 (M.D. Fla. 2001) is not controlling authority, it is distressing that the District Court of Appeal made no attempt to distinguish this persuasive opinion. As a consequence, we now face a situation where the very same litigant has challenged very similar sign laws under identical legal theories and has obtained different results in the state and federal systems. The federal court found that this Petitioner was likely to prevail on a prior restraint challenge to a facially content-neutral sign ordinance. The District Court found precisely the opposite in this case. See, also, Café Erotica, Inc. v. St. Johns County, Case No.: 98-597-CIV-J-21HTS (supplemental authority). 7

evident error below and to provide guidance for the lower courts in what is admittedly a difficult area of the law. III.

THIS COURT HAS JURISDICTION UNDER RULE 9.030(a)(2)(A)(ii), FLA.R.APP.P. BECAUSE THE OPINION BELOW DIRECTLY CONSTRUED THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION. The District Court specifically considered whether the First Amendment

rendered the laws in question unconstitutional as impermissible prior restraints. The Court ultimately concluded that the permitting laws do not “impose a facially unconstitutional prior restraint on speech” Café Erotica / We Dare to Bare, 2002 WL 31887720 at *1. This construction is at odds with federal cases which have ruled that sign permitting laws must include the substantive and procedural safeguards applicable to prior restraints. See, e.g., Sugarman, supra; Café Erotica / We Dare to Bare, supra; Café Erotica, Inc., supra. CONCLUSION It is imperative for this Court to assume jurisdiction over this case to provide guidance in a very difficult area of the law. The District Court of Appeal upheld Florida’s outdoor advertising permitting laws against a First Amendment challenge grounded in the United States Supreme Court decision of FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596 (1990). The opinion below leads to a very curious and disturbing result: this same litigant successfully challenged a very similar sign law under an identical 8

legal theory in Cafe Erotica / We Dare to Bare / Adult Toys / Great Food / Exit 94, Inc. v. St. Johns County, 143 F.Supp.2d 1331 (M.D. Fla. 2001), only to fail in the Court below. The Middle District of Florida found that this Petitioner was likely to prevail on a prior restraint challenge to a facially content-neutral sign ordinance. See, also, Café Erotica, Inc. v. St. Johns County, supra. The First District Court of Appeal found precisely the opposite with respect to Florida’s outdoor advertising statute. This is a case of first impression in the Florida court system and one with far reaching implications for a variety of permitting laws on both the state and local levels. Important First Amendment rights are at stake in an area of the law which is in need of development and clarification by this Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Jurisdictional Brief has been forwarded to MARIANNE A. TRUSSELL, Esq., Haydon Burns Building, MS-58, 605 Suwannee Street, Tallahassee, Florida 32399-0458, by U.S. Mail this

day of January, 2003.

GARY S. EDINGER, Esquire Florida Bar No. 0606812 305 N.E. 1st Street 9

Gainesville, Florida 32601 (352) 338-4440 Attorney for Petitioner

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS Undersigned counsel certifies that this brief is typewritten using 14 point Times New Roman font and complies with Rule 9.210(a)(2), Fla.R.App.P.

GARY S. EDINGER, Esquire

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