                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 July 24, 2006
                               No. 05-13419                  THOMAS K. KAHN
                         ________________________                  CLERK

                 D. C. Docket No. 03-01422-CV-ORL-31DAB

YOUR DREAMS, INC.,
d.b.a. Club Goddess,

                                                        Plaintiff-Appellant,

                                    versus

CITY OF PALM BAY,

                                                        Defendant-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 24, 2006)

Before EDMONDSON, ANDERSON and FAY, Circuit Judges.

ANDERSON, Circuit Judge:

     This case involves a unique factual situation, which is further complicated
by the failure of the parties to articulate clear positions and arguments. We

acknowledge considerable difficulty deciphering the precise rationale of the

district court, which is entirely understandable in light of the often changing (even

inconsistent) and poorly articulated positions adopted by the parties as the

litigation developed. The district court noted that plaintiff did not clearly

articulate a prior restraint claim until its post-trial closing brief.1 Although the

district court may have been entitled to decline to entertain the argument at all, the

district court apparently did entertain a very limited version of the argument. We

likewise restrict our review to that very limited claim. The district court seemed to

address a claim that the City’s conduct constituted a prior restraint in that the

City’s officers on October 2, 2003, precluded more dance activity than the officers

were legally entitled to prohibit. The district court rejected that claim on the facts.

The district court found that “the City’s warning was fairly straightforward; in

essence: if you engage in (or allow) dancing in the Club which in any way fits

within the scope of adult entertainment under the Code, then the 1995 settlement

notwithstanding, you will be arrested.” Order at 10. The district court found that


       1
                 The plaintiff failed to prove a breach of contract claim, and indeed expressly
disavowed making any breach of contract claim (e.g., based on the theory that the City was not
justified under Florida law in declaring the 1995 agreement breached and no longer binding on
the City). The contract issue is apparently the subject of a pending state court lawsuit. The
plaintiff also disavowed any challenge to the constitutionality of the Code itself.

                                                2
the City’s “conduct was merely enforcement within the legitimate scope of the

Code.” Order at 11. In other words, the district court found that the City’s action

constituted legitimate enforcement of its Adult Entertainment Code.

        The record reveals a stark contrast between the version of the events on

October 2, 2003, as reported by plaintiff’s witnesses and that reported by the

City’s witnesses. The plaintiff’s witnesses insisted that the officers prohibited any

dancing at all, while the officers testified that they communicated only that adult

entertainment as defined in the Code (which they handed out) was prohibited.

After carefully reviewing the entire trial record, we cannot conclude that the

district court erroneously resolved that credibility choice. We note that the

officers’ version is supported by the City’s September 30, 2003, letter and by the

handout given to management and the dancers on October 2, 2003.

       Although earlier in the litigation below, the plaintiff seemed to assert a

claim that the manner of the City’s conduct converted the communication of its

legitimate message into a prior restraint,2 the plaintiff’s case at trial focused on the

more limited issue discussed above – i.e., that the officers precluded more dance



       2
                “Before trial, it appeared possible the Club could prove that, at the Grand
Reopening Event, City agents entered the Club in an overwhelmingly disruptive manner and
issued a threat, which effectively and unreasonably restrained a large swath of First Amendment
protected expression.” Order at 9.

                                               3
activity than they were entitled to prohibit. The plaintiff’s post-trial closing

argument brief had a similar focus. Significantly, at the subsequent oral argument,

the district court restated the plaintiff’s position as follows: “But to accept your

position on that, I have to find as a matter of fact that the City’s conduct indeed

had the effect, at least, of prohibiting all forms of dancing.” Docket 117 at 8. The

plaintiff did not dispute the district court’s understanding of its claim. Finally, the

district court’s final order resolved only that very limited issue, finding that the

City’s “conduct was merely enforcement within the legitimate scope of the Code.”

Order at 11. Our careful review of the record and the plaintiff’s arguments in the

district court persuades us that the district court was warranted in thus limiting the

issues. Accordingly, we too decline to address a broader claim that the City’s

conduct on October 2, 2003, converted the communication of its legitimate

message into a prior restraint.3

       Because we cannot disagree with the district court’s resolution of the

limited issue which was ultimately litigated, the judgment of the district court is

       AFFIRMED.


       3
                Although we expressly decline to address that broader claim, we do note that the
officers (four plain-clothes officers and one in uniform) testified that they conversed briefly with
the Club management at the front door, and then repaired immediately to a back room where they
communicated their message (i.e., that adult entertainment was not permissible at that location
and that the 1995 agreement was no longer valid). They also testified that the communications
were cordial and out of view of the public areas of the Club. We also note that the district court
seemed to credit the testimony of the officers.

                                                 4
