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5th DCA - Dec Actions Provide Sufficient Guarantee of "Prompt Judicial Decisions" in 1st Amendment cases [updated]

I don't think I wrote about the US Supreme Court's decision in the Littleton case last year - here's the link - which involved a challenge to the sufficiency of the judicial review available to a first amendment-implicated licensing decision. Earlier cases had indicated the need for prompt judicial review and decision (in different opinions); Littleton argued that there was no need to guarantee a prompt judicial decision and that Colorado law was adequate to provide it anyway.

The court rejected the first position, holding that a prompt judicial decision is a critical element in a valid regulatory scheme that implicates First Amendment values. It then went on to hold that Colorodo's would meet that - laying out a bunch of language, but basically saying that you can expedite and hear these cases quickly under the rules, and judges know these need to be expedited, so we're not going to disturb this on a facial challenge, but deal with it on a "case by case" basis.

MOREOVER, the Littleton ordinance provided an administrative procedure for the issuance of a license that allowed appeal to the appellate court - rather than a de novo action. So the review here was appellate - failure to provide sufficiently prompt judicial review would be evaluated on a case-by-case basis.

What they were REALLY saying (and its in one of the lines) is that states (or local governments, who can't in Florida) don't need to adopt special statutes for guaranteeing prompt judicial review in order to have valid local zoning regulations that implicate First Amendment values. They were leaving it open to what would happen if the system failed. Presumably, because we're talking about appellate review, the failure of the courts to respond appropriately would be subject to its own decision rule - the court, rather than the local government, would be violating the 1st Amendment/due process by failing to act expeditiously on a petition.

In the process, the Supremes over-ruled our own 11th Circuit, which had held (in yet another Cassleberry case) that the First Amendment only required prompt access to courts, not a prompt decision. The Court clearly rejected that line - so if a 1st amendment licensing case arrives before a judge, there is a FUNDAMENTAL right to a rapid decision so that a license that has been inappropriately denied (or where the ordinance is invalid), there is rapid remedy.

WHICH leads us to this opinion issued March 24 by the 5th DCA (I've got to start reading more of the criminal appeal cases -tx to Matt Conigliario at Abstract Appeal for seeing this one). It upholds a challenge to Orange County's adult bookstore licensing ordinance based on vagueness and inadequacy of review.

First, the Court held that the provisions defining an adult bookstore regulated under the Ordinance were not unconstitutionally vague. So the Appellant could be prosecuted for selling adult material without the proper license if the rest of the ordinance were valid.

Here's the kicker: the Orange County Code has the Tax Collector make the decision with no avenue for a full administrative hearing or de novo administrative appeal (whether the Commission has authority over the constitutionally independant Tax Collector is another interesting issue that wasn't raised). Instead, another provision "allows" (remember, local governments have NO authority to grant or modify judicial jurisdiction) an applicant who is denied a permit "to immediately file appropriate pleadings." Hence - the majority and dissent find correctly (yeah, we're getting somewhere) that certiorari review is NOT available to speed a denial into the courts.

The 5th then held (over a lucid dissent) that the availability of a declaratory action under Chapter 86 is good enough to provide "prompt judicial review." It cites all the parts of the Littleton opinion that talk about how judges will be good and discusses none of the issues associated with having to try a denial denovo. The problems with getting effective declaratory review in a prompt manner was simply glossed over by the majority - though laid out well by the dissent.

The majority doesn't deal with the problem that a $30,000 license fee would be unconstitutional, but forcing an applicant to pay that much to try a de novo action against the County to get the same license appears OK. Nor does it deal with the issue that nothing in the Rules today compels a circuit judge to grant motions to expedite, etc. And given the clear distinction (appellate review vs de novo attack) between the Littleton ordinance and the Orange County ordinance, I'm not sure that the 5th isn't asking for reversal.

But here's another interesting issue: the court did not address whether mandamus would be available and under what circumstances.

Here's the section on denial of permits:

1) The tax collector shall review the findings reported by the departments and deny the application for any of the following reasons:
a. The application is incomplete or contains incorrect or false information;
b. The applicant has failed to comply with the filing requirements of F.S. ch. 607, regarding corporations, the filing requirements of F.S. ch. 620, regarding partnerships, or the requirements of F.S. ยง 865.09, regarding doing business under a fictitious name;
c. A license issued under this chapter for the location of the proposed establishment is the subject of a pending suspension proceeding or is under suspension;
d. A license issued under this chapter for the location of the proposed establishment is the subject of a pending revocation proceeding;
e. The granting of the application would violate a statute, ordinance, or an order from a court of law that prohibits the applicant from obtaining an adult entertainment establishment license or operating an adult entertainment establishment
(2) If the tax collector denies the application, the tax collector shall, within seven (7) days, notify the applicant of the denial by certified mail, return receipt requested, and state the reason(s) for the denial.
It looks to me like the Tax Collector has to grant the permit unless one of these reasons to deny it exists. It also looks to me like these are pretty clear cut, non-discretionary types of determinations, and if a denied applicant could show through affadavits and collateral information that none of these bases for denial were present, the Collector would be required to issue the permit. OTOH, if the Collector disputed one of the facts, there's a line of cases that provides that mandamus would not be available - back to a dec action / injunction instead.

So here's another case where the appellate courts are essentially kowtowing to possible constitutional defective and abusive local ordinances.

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