Opinion
Case No. 8:99-CV-1308-T-27EAJ
August 15, 2001
ORDER ON DEFENDANT'S MOTION TO DISMISS
THIS CAUSE came on to be considered on Defendants Motion to Dismiss the Amended Complaint (Dkt. 18). The Court having reviewed said motion and being otherwise fully advised in the premises, finds as follows:
Plaintiff filed his Amended Complaint ("Complaint") seeking a judgment declaring the Florida Racketeer Influenced and Corrupt Organizations Act, Chapter 895 of the Florida Statutes, unconstitutional when applied in conjunction with the Florida obscenity law, Chapter 847 of the Florida Statutes. (Count I). Plaintiff also seeks a permanent injunction enjoining Defendant Hill from enforcing Chapter 895 against Plaintiff when the prohibitions in Chapter 847 are used as the predicate offense. (Count II). Defendant has moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b) on the grounds that Plaintiff lacks standing to bring this action as this case does not present an actual controversy and this Court lacks jurisdiction.
Standards Applicable to Motion to Dismiss
The appropriate standard for testing the sufficiency of a complaint is whether it appears beyond a reasonable doubt that the plaintiff can prove no set of facts to support his claim. Conley y. Gibson, 355 U.S. 41, 45-46 (1957); South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996); Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In its review, the court is confined to examining the four corners of the complaint, Anderson v. Transglobe Energy Corp., 35 F. Supp.2d 1363, 1366 (M.D. Fla. 1999), and must accept as true all well-pleaded factual allegations in the complaint. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Additionally, the complaint is viewed in the light most favorable to the nonmoving party. Id. at 73. Regardless of the alleged facts, however, a complaint may be dismissed on a dispositive issue of law. See Marshall County Bd. of Educ. v Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
DISCUSSION
To invoke the jurisdiction of the federal court, a plaintiff must satisfy the threshold requirement of Article III of the United States Constitution by asserting an actual case or controversy. City of Los Angles v. Lyons, 461 U.S. 95 (1983); Flast v. Cohen, 392 U.S. 83 (1968). To establish an actual case or controversy, a plaintiff must "show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." Lyons, 461 U.S. at 103. When a plaintiff is challenging the constitutionality of an ordinance on First Amendment grounds, these standards are liberally applied. Steffel v. Thompson, 415 U.S. 452 (1974); Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir. 1985).
In Leverett, for example, the plaintiffs filed a complaint against the defendants alleging that the defendants' ordinance, which prohibited the consumption of food, beverages and alcoholic beverages in nude entertainment establishments, violated their First Amendment rights. 775 F.2d 1536. Plaintiffs were owners of a nude dancing establishment.Id. at 1537. The defendants successfully moved to dismiss the complaint on the grounds that the plaintiffs lacked standing to pursue their claims. Id. at 1538. The Eleventh Circuit reversed the trial court's order of dismissal and concluded that the complaint sufficiently alleged that the threat of prosecution under the ordinance was genuine. Id. at 1539. The allegations there were sufficient despite the fact that the plaintiffs had never been threatened with enforcement of the ordinance as the court reasoned:
Federal courts will not place a plaintiff in the position of choosing between intentionally flouting state law to be eligible for relief and foregoing what he or she believes to be a constitutionally protected activity to avoid criminal prosecution.Id. at 1538 citing Steffel, 415 U.S. at 463).
Here, Plaintiff has alleged in the Complaint that he owns and operates a retail videotape sales and rental business in Polk County, Florida. (Dkt. 17, ¶ 1). He would like to sell and rent sexually explicit, non-obscene adult videotapes. (Dkt. 17, ¶ 6). Plaintiff has not commenced selling the adult videotapes as he fears that Defendant will file criminal charges against him for violating the Florida Racketeer Influenced Criminal Organizations Act, Chapter 895, Fla. Stat. (1999), as it applies to obscenity. (Dkt. 17, ¶ 7). Plaintiff alleges that on numerous occasions, Defendant has investigated and charged business owners that sell adult videotapes with violating the Florida RICO Act and has used obscenity as the predicate offense. (Dkt. 17, ¶¶ 10-16). Plaintiff alleges that such charges and investigations have caused the business owners to close their businesses. Id. Plaintiff further alleges that such conduct by Defendant violates his First and Fourteenth Amendments. (Dkt. 17, ¶¶ 21-24).
These allegations are more than sufficient to establish an actual case or controversy. Viewing the allegations in the Complaint in the light most favorable to Plaintiff, it is clear that Plaintiff has a genuine fear of prosecution by Defendant. According to Plaintiff, business owners who have sold the adult videotapes that Plaintiff would like to sell faced severe penalties, had their business assets seized and ultimately closed their establishments. As such, the threat of injury to Plaintiff is real and immediate as required by Lyons.
Defendant also contends that this Court lacks jurisdiction over this matter under Younger v. Harris, 401 U.S. 37 (1971) as Plaintiff has requested relief based only on imaginary and speculative fears of state prosecution. (Dkt. 13, pgs. 3-4). According to Younger, federal courts are prohibited from staying or enjoining pending state court proceedings except "where a person about to be prosecuted in the state court can show that he will, if the proceeding in the state court is not enjoined, suffer irreparable damages." 401 U.S. at 43. There, the plaintiff, who had been indicted by the state district attorney, filed a lawsuit in federal court to enjoin the prosecution. Id. at 39-40. The Supreme Court held that the "possible unconstitutionality of a statute `on its face' does not in itselfjustify an injunction against good-faith attempts to enforce it" and that the plaintiff there failed to make any showing of bad faith, harassment or any other unusual circumstance that would call for equitable relief. Id. at 54. The Court expressly noted, however, that it expressed no view about the "circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal prosecution is begun." Id. at 41.
Younger is not applicable to this case. No prosecution is currently pending in the state court. Rather, Plaintiff alleges in the Complaint that he fears that he would be prosecuted if he sells the adult videotapes in his store. (Dkt. 17, ¶ 7). Plaintiff's fear of prosecution is not imaginary or speculative as he alleged that numerous other business owners have been investigated and prosecuted when they sold the adult videotapes in their stores. (Dkt. 17, ¶¶ 10-16). See Lyons 461 U.S. at 103. As such, the allegations in the Complaint are sufficient to state claims for declaratory judgment and permanent injunction.
Accordingly, it is
ORDERED AND ADJUDGED that:
1. Defendant's Motion to Dismiss (Dkt. 18) is DENIED.
2. Defendant shall file an answer to the Amended Complaint (Dkt. 17) within twenty days (20) of the date of this Order, on or before September 3, 2001.