TJOFLAT, Circuit Judge:
In this case, we consider whether a business may sue a municipality under 42 U.S.C. § 1983 to recover damages it sustained by cautiously complying with an ordinance that the business claims is unconstitutionally vague under the Fourteenth Amendment. The business does not engage in any constitutionally protected activities under the First Amendment or any other provision of the United States Constitution. It therefore does not claim that the unclear ordinance chilled protected conduct. Rather, it simply claims that the municipality violated its right to operate under clear laws. The district court denied the business's request for damages, but granted it a permanent injunction and declared the ordinance "unconstitutionally vague on its face."
Both the business and the municipality have appealed to this court. The business seeks § 1983 damages; the municipality asks us to vacate the injunction. Part I of this opinion sets out the facts and the procedural history of the case. Part II addresses whether the business sustained a constitutional injury and is thus owed damages under § 1983. Part III addresses the municipality's argument that the injunction is now moot because the municipality repealed the ordinance after the district court entered judgment. Part IV concludes.
Bankshot Billiards, Inc. ("Bankshot") owns and operates an establishment by the same name in Ocala, Florida. Bankshot opened in 1995 as a billiard hall and operated exclusively as a billiard hall until 2004; the first floor of its two-story premises housed sixteen regulation pool tables, provided recreational billiard activities, and hosted pool tournaments. In 2004, Bankshot expanded its range of business, opening the second floor of its property as a night club. The night club offered a dance floor and music for its patrons, but was only open a few nights a week. The downstairs billiard portion was, and remains, open every day. Bankshot serves alcohol on its premises pursuant to a liquor license from the State of Florida, and also serves limited food items and non-alcoholic beverages. Until the present dispute arose, it permitted entry to persons under the age of twenty-one in both the upstairs night club and the downstairs billiard hall.
Starting in 2005, the City of Ocala (the "City") began to express its concern that people under twenty-one were frequenting establishments serving alcohol. To that end, the City passed a series of zoning ordinances. In January 2005, the City passed an ordinance creating an age-restriction provision making it unlawful for anyone under twenty-one to enter an establishment selling alcohol. Bankshot and another establishment complained about this measure, filing suit in Florida state court. The City relaxed its rules and, in March 2005, amended the age-restriction ordinance to create an exemption to the under twenty-one prohibition for several categories of businesses, including billiard halls. The exemption would apply when, for billiard halls, the operation of billiards was the "primary attraction held out to the public." Even with the upstairs night club, the record suggests that the City believed that Bankshot qualified for this exemption; Bankshot continued to permit persons under twenty-one to enter its premises without incident.
Bankshot sought further clarification from several sources, meeting with Ocala police and the City Council. While Bankshot pursued these clarifications, the City passed two ordinances that amended the age-restriction provision to narrow and further define the billiard hall exemption.
Bankshot engaged in some of these activities during portions of its operating hours. Believing that this categorically barred it from claiming the billiard hall exemption, Bankshot stopped admitting persons under twenty-one during all hours. After it stopped admitting patrons under twenty-one, Bankshot's gross revenues dropped from an average of $62,023.75 per month to an average of $33,566.64 per month.
In March 2007, Bankshot sued the City in the Circuit Court of Marion County, Florida.
In response, the City repealed these amendments and, in April 2007, passed Ordinance 5650 (the "Ordinance"). The Ordinance re-wrote the City's age-restriction scheme using a complex web of definitions and exemptions. Because the Ordinance is the ordinance at issue in these appeals, it is useful here to lay out the Ordinance's relevant components.
The Ordinance's core provision bars persons under twenty-one "to enter or remain in any alcohol beverage establishment ... except as hereinafter provided." Ordinance § 6-9(b). An "alcohol beverage establishment" is a "bottle club, cocktail bar or nightclub." Id. § 6-9(a)(1). A "nightclub" is defined as an
Id. § 6-9(a)(10). Bankshot was a "nightclub" under this definition and would, without
Billiard halls were, as in the prior ordinances, exempted from the age-restriction provision under the Ordinance. Id. § 6-9(c)(7). The Ordinance in turn defined "billiard hall" as:
Id. § 6-9(a)(2).
The Ordinance does not end there. Under one "Limitation" to the Ordinance, even if a business met the definition of a billiard hall, the establishment could lose its billiard hall exemption under another portion of the Ordinance and thus be forced to exclude persons under twenty-one. This Limitation reads:
Id. § 6-9(d)(1) (emphasis added).
Id. § 6-9(e)(1), (3).
The Ordinance provides for criminal and civil penalties, as well as the possible revocation of a location permit by the City Council. The Ocala police are tasked with enforcing the Ordinance only in response to complaints; the police do not proactively enforce the Ordinance.
After the City passed the Ordinance, Bankshot amended its complaint to reflect the Ordinance's provisions.
The Supplemental Complaint laid out the Ordinance's components and alleged that the Ordinance violated Bankshot's rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution because the Ordinance was "vague and ambiguous on its face and as enforced." Supplemental Compl. ¶ 26.
Bankshot fashioned its suit as a facial challenge to the Ordinance. The Supplemental Complaint did not allege facts about Bankshot's business and then describe how Bankshot was unable to understand the Ordinance as applied to its business model.
Id. ¶ 26(D)-(E). In this sense, Bankshot's claim that the Ordinance was "vague and ambiguous ... as enforced" applied only to these hypothetical businesses, not to Bankshot.
To remedy these purported constitutional harms, Bankshot requested a declaratory judgment, temporary and permanent injunctions, and money damages under 42 U.S.C. § 1983. The § 1983 damages claim was a new claim in the Supplemental Complaint. Bankshot alleged that the City was liable under the civil rights statute for violating Bankshot's rights under the Due Process Clause of the Fourteenth Amendment.
Id. ¶ 40(A)-(C).
Noting the addition of the § 1983 claim, the City removed the case on November 9, 2007, to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1441.
After nearly a year of discovery, the City moved for summary judgment on September 11, 2008. See Fed.R.Civ.P. 56. It first argued that Bankshot did not have standing to bring a pre-enforcement challenge to the Ordinance because it had not shown a "realistic danger of sustaining direct injury as a result of the statute's operation or enforcement." It also argued that Bankshot could not challenge portions of the Ordinance that did not apply to Bankshot. This argument was in response to portions of the Supplemental Complaint that referenced ambiguities in the treatment of "bona fide restaurants" and "public lodging establishments," neither of which applied to Bankshot.
Regarding the § 1983 claim, the City first argued that Bankshot had not been deprived of a constitutional right; the City had taken no action against it. Alternatively, if the court found a constitutional violation, the City argued that Bankshot had not shown that the City had any practice or policy that caused the violation. Because demonstrating a practice or policy is a necessary element to hold liable a municipality under § 1983, the city argued that no liability could possibly exist.
The district court ruled on the City's motion on February 12, 2010. It first found that Bankshot had standing to challenge as unduly vague the portions of the Ordinance that applied to it. The fact that it had not been prosecuted was unimportant. The court stated that "there is no assurance that the Ordinance will not be enforced against Bankshot, and the record shows that others have been prosecuted under its predecessor versions."
Bankshot's § 1983 damages claim was also dismissed. The court found that Bankshot lacked standing to bring a damages claim because "it ha[d] not yet suffered any harm by virtue of the enforcement of the Ordinance." While this issue was no bar to a pre-enforcement challenge, the district court found that Bankshot's lost revenue was "solely due to its own election to exclude all persons under age twenty-one at all times. There has been no act, policy, or custom which directly caused Bankshot's losses."
Turning to the merits of Bankshot's vagueness claim, the district court found the Ordinance unconstitutionally vague.
The Ordinance's second failing was that its lack of clarity "raise[d] the likelihood of
The court's discussion demonstrated that Bankshot was mounting—and the court was deciding—a facial challenge. Its analysis discussed only the Ordinance's terms and hypothetical fact scenarios; it never applied the statute to the specific facts of Bankshot's business except to say that, as a billiard hall, Bankshot could not know whether the Ordinance applied to it.
After finding that the Ordinance provisions Bankshot challenged were not severable from the remaining provisions, the district court declared the whole Ordinance unconstitutionally vague as a matter of law. The court entered judgment declaring the statute "unconstitutionally vague on its face" in violation of the Fourteenth Amendment and permanently enjoined the City from enforcing the Ordinance against Bankshot.
Both parties appealed. Bankshot challenges the denial of § 1983 damages, arguing that the City's unconstitutionally vague ordinance was a municipal policy sufficient to sustain liability. The City's separate appeal raises three issues challenging the declaratory judgment and injunction. First, it notes that the City repealed the Ordinance in June 2010 and no longer places restrictions on admitting persons under twenty-one; it therefore argues that the injunction should be vacated as moot. Second, the City argues that the Ordinance was not unconstitutionally vague on its face. Third, the City argues that the allegedly unconstitutional provisions are severable from the portions challenged by Bankshot.
The district court rejected Bankshot's damages claim. In its February 12 Order, the court ruled that Bankshot did not have standing to bring a claim for damages under § 1983 because the City had never prosecuted it under the allegedly vague ordinance. Any "damages" were therefore of its own doing; Bankshot lost money because it voluntarily complied with the Ordinance, not because of any "act, policy, or custom" attributable to the City.
On appeal, Bankshot argues that the Ordinance's incomprehensible wording violated its constitutional rights and caused it to lose revenue. Bankshot claims that, as a result of this poor draftsmanship, it cautiously complied with the Ordinance and excluded persons under twenty-one, costing it half its revenues.
The Fourteenth Amendment prohibits States and their components from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Due process encompasses the concepts of notice and fair warning. At its core, "the ... principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Lanier, 520 U.S. 259, 265, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997) (quoting Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964)).
Vagueness is a "related manifestation[] of the fair warning requirement." Id. at 266, 117 S.Ct. at 1225. "[T]he touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." Id. at 267, 117 S.Ct. at 1225.
We do not apply these principles in a vacuum, however. Litigants may not comb the statute books for poorly drafted laws and sue to enjoin their enforcement. As Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), instructs us:
Id. at 52, 91 S.Ct. at 754 (emphasis added) (internal citation omitted).
Instead, we review statutes for vagueness concerns only when a litigant alleges a constitutional harm. These harms—or, injury, if you like—come in two forms. In the first form, a person violates the vague law, is indicted, and then moves the trial court to dismiss the indictment— or reverse a conviction—against him, arguing that he did not receive notice that his conduct was proscribed. See, e.g., Skilling v. United States, ___ U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (addressing the defendant's argument that the Court must vacate his conviction for honest-services wire fraud because the statute was unconstitutionally vague); City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (addressing vagueness concerns following a conviction under Chicago's "Gang Congregation Ordinance"). The injury remedied by this process is the
The second form is implicated when a litigant asks the federal court to review a vague statute before the State seeks to enforce its law, known as pre-enforcement review. This review deviates from the first form because the State has not yet enforced the vague law; we do not know if the litigant will ever be deprived of his liberty without due process of law. But we review these claims when the vague law causes a separate injury: the litigant is chilled from engaging in constitutionally protected activity. See Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 301-03, 305-06, 99 S.Ct. 2301, 2310-11, 2312, 60 L.Ed.2d 895 (1979) (permitting review of a state statute limiting a union's publicity rights and providing criminal penalties for violations, but abstaining from review to await a potentially narrowing state court construction); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974) (reviewing a challenge to a trespass statute as applied to a handbill distributor because "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights" to free speech); Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964) (providing pre-enforcement review of a state law requiring teachers to pledge oaths of allegiance to the United States, thereby implicating the First Amendment); see also Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983) (providing pre-enforcement review of a loitering statute that "implicates consideration of the constitutional right to freedom of movement").
Under this second paradigm, pre-enforcement review provides law-abiding citizens with a middle road between facing prosecution and refraining from otherwise constitutional conduct. Without pre-enforcement review, those citizens would be forced to choose between "the Scylla of intentionally flouting state law and the Charybdis of forgoing what [they] believe[] to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding." Steffel, 415 U.S. at 462, 94 S.Ct. at 1217 (citing Dombrowski v. Pfister, 380 U.S. 479, 490, 85 S.Ct. 1116, 1123, 14 L.Ed.2d 22 (1965)). It is thus the plaintiff's desire to engage in constitutionally protected conduct that excepts him from the choice of either violating or complying with the vague law.
Neither paradigm applies to Bankshot's claims. Bankshot has not been prosecuted; it has not lost its license; it has not been fined. The first form is therefore inapplicable.
Bankshot similarly cannot avail itself of the pre-enforcement review paradigm. It operates a pool hall and wants to admit patrons under twenty-one while also serving alcohol. The pre-enforcement review paradigm hardly fits our record; even though Bankshot is "chilled" from engaging in an activity in which it once engaged, that activity is not constitutionally protected. Rather, it is normal business activity; Bankshot is simply unsure whether it may simultaneously serve alcohol and permit entry to persons under twenty-one. Cf. Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8 (emphasizing that courts are more tolerant of a vague statute that "`simply regulates business behavior'" (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 1194, 71 L.Ed.2d 362 (1982))).
The district court permanently enjoined the Ordinance and declared its provisions "unconstitutionally vague on its face" in violation of the Fourteenth Amendment. After the court rendered this judgment, the City repealed the Ordinance. On appeal, the City argues that this repeal renders the district court's judgment moot and submits that, without a proper Article III case or controversy, we must vacate the injunction.
Under Article III of the Constitution, federal courts may only hear live "cases" and "controversies." U.S. Const. Art. III, § 2. "If events that occur subsequent to the filing of a lawsuit ... deprive the court of the ability to give the plaintiff... meaningful relief, then the case is moot and must be dismissed." Sheely v. MRI Radiology Network, 505 F.3d 1173, 1183 (11th Cir.2007) (citing Troiano v. Supervisor of Elections, 382 F.3d 1276, 1281-82 (11th Cir.2004)). Here, the City argues that, because it repealed the Ordinance, the district court's injunction currently enjoins nothing and the case is moot.
Bankshot disagrees. It argues that the repeal does not affect our jurisdiction because the City acted solely to deprive this court of jurisdiction and will likely re-impose the purportedly unconstitutional measure.
"The doctrine of voluntary cessation provides an important exception to the general rule" of mootness. Troiano, 382 F.3d at 1282. "It is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708, 145 L.Ed.2d 610 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982)). "Otherwise, a party could moot a challenge to a practice simply by changing the practice during the course of the lawsuit, and then reinstate the practice as soon as the litigation was brought to a close." Jews for Jesus, Inc. v. Hillsborough Cnty. Aviation Auth., 162 F.3d 627, 629 (11th Cir.1998). Accordingly, the voluntary cessation of challenged conduct will only moot a claim when there is no "reasonable expectation" that the accused litigant will resume the conduct after the lawsuit is dismissed. Id.; see also Laidlaw, 528 U.S. at 189, 120 S.Ct. at 708.
Generally, the "party asserting mootness" bears the "heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again." Laidlaw, 528 U.S. at 189, 120 S.Ct. at 708 (internal citations and alteration omitted). We also recognize, however, that "government actor[s enjoy] a rebuttable presumption that the objectionable behavior will not recur." Troiano, 382 F.3d at 1283 (emphasis in original); see also Harrell v. The Fla. Bar, 608 F.3d 1241, 1266 (11th Cir.2010) ("[W]e have applied a `rebuttable presumption' in favor of governmental actors...."); Sheely, 505 F.3d at 1183 ("[G]overnment actors receive the benefit of a rebuttable presumption that the offending behavior will not recur."). Hence, "the Supreme Court has held almost uniformly that voluntary cessation [by a government defendant] moots the claim." Beta Upsilon Chi Upsilon Chapter v. Machen, 586 F.3d 908, 917 (11th Cir.2009) (collecting cases). And
These legal standards are fact-intensive inquiries. Because this issue was raised for the first time on appeal, we have no factual record before us. We therefore remand the injunction and declaratory judgment issues to the district court to evaluate the parties' mootness arguments.
We AFFIRM the district court's judgment regarding Bankshot's request for damages under § 1983, and we REMAND the issue of the injunction and declaratory relief to the district court.
SO ORDERED.
