                                                                  PUBLISH


               IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                       FOR THE ELEVENTH CIRCUIT
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               09/03/99
                                                           THOMAS K. KAHN
                                  No. 98-2802                   CLERK


                    D. C. Docket No. 96-CV-463-ORL-22B


BOSS CAPITAL, INC., a Florida
Corporation,
                                                             Plaintiff-Appellant,

                                     versus

CITY OF CASSELBERRY, a Florida Municipal
Corporation,
                                                            Defendant-Appellee.



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

                              (September 3, 1999)

Before DUBINA and HULL, Circuit Judges, and O’KELLEY*, Senior District
Judge.

DUBINA, Circuit Judge:
____________________
*Honorable William C. O’Kelley, Senior U.S. District Judge for the Northern
District of Georgia, sitting by designation.
      Boss Capital, Inc. owns strip clubs. It wants to open a club in a building it

leases in Casselberry, Florida, but Casselberry’s zoning ordinance prohibits it from

operating at that location. In this appeal, Boss Capital challenges the

constitutionality of Casselberry’s zoning ordinance. It also challenges the

constitutionality of the licensing provisions of Casselberry’s adult entertainment

ordinance. The district court granted summary judgment for Casselberry on both

of these claims. We conclude that the licensing provisions are valid but that the

validity of the zoning provision turns on a factual question the district court left

unresolved. We therefore affirm in part and remand this case to the district court

with instructions to reconsider the validity of the zoning provisions in light of this

opinion.

                                           I.

      We address the zoning ordinance first. An adult entertainment establishment

in Casselberry may operate only in the C-G (Commercial-General) zoning district,

but even within that zone, it may not operate within 1000 feet of a church, a

school, a public park or recreation area, another adult entertainment establishment,

or an area zoned for residential use. See Casselberry Code art. III, § 14-75(a)

(reprinted in appendix). The ordinance grandfathers establishments in existence in

Casselberry as of the ordinance’s effective date. See Casselberry Code art. III, §


                                           2
14-76(a) (reprinted in appendix). All the parties agree that if one of the existing

establishments closes, a new adult entertainment establishment may operate in the

same location as a “nonconforming use” until the use “is removed or abandoned, or

ceases for a continuous period of more than 90 days.” Casselberry Code part III, §

2-8.9 (reprinted in appendix).

      Boss Capital leased a building in Casselberry with plans to open a strip club

there. The building is almost 1000 feet from residentially zoned property, but

almost wasn’t good enough. Casselberry refused to permit Boss Capital to use the

site for adult entertainment.

      Appropriately, the district court turned to City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), to decide whether Casselberry’s zoning

ordinance is constitutional. That case holds that municipalities may

constitutionally apply zoning regulations to nude dancing establishments as long as

the regulations are narrowly tailored to serve a substantial government interest and

leave open reasonable alternative avenues of expression. See id. at 50-54. The

dispute in this case is whether Casselberry’s zoning ordinance leaves open

reasonable alternative avenues of expression.

      Whether a zoning ordinance leaves open reasonable alternative avenues of

expression depends on how many sites are available. See Lady J. Lingerie, Inc. v.


                                          3
City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999). Availability, in turn, is

a matter of economics. A site is available for our purposes as long as adult

entertainment establishments may vie for it in the real estate market “on an equal

footing with other prospective purchasers and lessees.” City of Renton, 475 U.S. at

54.

      The district court counted six available sites. Two other sites might be

available, but factual questions kept the court from deciding on summary judgment

whether they are actually available. The district court left those questions

unresolved because it held that six sites are enough for a city of Casselberry’s

population (24,100).

      Boss Capital does not appear to dispute that six are enough. Rather, it

argues that the six sites the district court included should not count. Three of the

sites are outside the city limits. Casselberry insists that these sites should count

because they are close to town (978 feet, 121 feet and 1.25 miles). The other three

sites the district court counted are in Casselberry, but they are grandfathered sites

that do not comply with the ordinance’s distance requirements.

      Whether a site is available is generally a factual question, but whether the

sites outside Casselberry’s borders and the grandfathered sites count are legal




                                           4
questions which the district court resolved on summary judgment and we review de

novo. See Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th Cir. 1995).

                                            A.

       We turn first to the grandfathered sites. The ordinance permits the current

occupants to remain where they are for as long as they want, but a new occupant

may only operate an adult entertainment establishment at one of the grandfathered

sites if no more than 90 days has passed since the last adult entertainment

establishment operated there. See Casselberry Code art. 3, § 14-76(a); id. part III,

§ 2-8.9. The likelihood that a shoe store or a grocery will move into one of the

sites, or that one of the sites will sit vacant for more than 90 days, is, if not great, at

least significant. If any of those things happen, the site is no longer available.

       Still, for now at least, the three (defeasibly) grandfathered sites are

available. Boss Capital has every right to outbid its competitors and buy or lease

one of the grandfathered sites out from under one of the current occupants. This

convinces us to include the grandfathered sites in the “reasonable alternative

avenues of expression” equation.

                                            B.

       That leaves the three sites outside the city limits. Whether Casselberry may

rely on those sites is an issue this court has not yet faced, although the Supreme


                                             5
Court has faced it and left the question open. See Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 76-77 (1981); id. at 78 (Blackmun, J., concurring). We opt

to leave it open as well because it is our custom not to decide difficult

constitutional questions unless we must. See Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 347 (1936) (Brandeis, J., concurring). The district court noted that one

or two other sites might be available inside the city limits. If they are, we probably

will not have to decide whether the sites outside the city limits should count

because four or five sites are most likely adequate for Casselberry.

      We do not hold, however, that three sites alone are inadequate for

Casselberry. That question too is a difficult one we might not need to decide.

Instead, we remand this case to the district court for it to resolve whether the sites

inside the city limits are actually available. Then, if it must, it should consider

whether the available sites constitute reasonable alternative avenues of expression.

      In deciding whether three or four or five sites constitute reasonable

alternative avenues of expression, the district court should consider more than just

Casselberry’s population. It should also consider Casselberry’s geographical size,

the number of acres available to adult entertainment establishments as a percentage

of that size, where the sites are located, the number of adult entertainment

establishments currently in existence in Casselberry, and the number of adult


                                           6
entertainment establishments wanting to operate in Casselberry. In short, whether

a given number of sites constitutes reasonable alternative avenues of expression is

an issue to be resolved on a case-by-case basis, taking into account any factors that

may affect whether adult entertainment establishments are on “equal footing with

other prospective purchasers and lessees.” City of Renton, 475 U.S. at 54; see also

Int’l Food & Beverage Sys. v. City of Ft. Lauderdale, 794 F.2d 1520, 1526 (11th

Cir. 1986)(referring to “community needs, the incidence of nude bars in other

comparable communities, the goals of the city plan, and the kind of city the plans

works towards”).

      In light of this, we affirm the district court’s judgment insofar as it held that

the grandfathered sites may be considered in the “reasonable alternative avenues of

expression” equation. In accordance with our custom of only deciding difficult

constitutional questions when necessary, however, we remand this case to the

district court for it to determine whether one or two more sites are available inside

the city limits. If need be, the district court should then decide whether the total

number of sites constitutes reasonable alternative avenues of expression.

                                          II.

      We now turn to Casselberry’s adult entertainment licensing ordinance, to

which Boss Capital has two objections. Its first objection is that the ordinance


                                           7
does not provide for prompt judicial review in compliance with Freedman v.

Maryland, 380 U.S. 51 (1965), because it does not guarantee that courts will

promptly resolve appeals from administrative license denials. Second, it contends

that the ordinance gives licensing officials too much discretion in violation of

Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969).

                                         A.

      We have twice pretermitted the question whether Freedman’s requirement

of prompt judicial review, as reflected in FW/PBS, Inc. v. City of Dallas, 493 U.S.

215 (1990) (plurality opinion), requires licensing ordinances to explicitly provide

for prompt judicial review. See Lady J. Lingerie, 176 F.3d at 1363; Redner v.

Dean, 29 F.3d 1495, 1501-02 & n.9 (11th Cir. 1994) (discussing Cent. Fla.

Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985); Miami

Herald Publ’g Co. v. City of Hallandale, 734 F.2d 666, 675-76 (11th Cir. 1984)).

As we have observed, a general right to judicial review of administrative decisions

may be enough. Casselberry’s ordinance contains an explicit judicial review

provision, see Casselberry Code art. III, § 14-99(c) (reprinted in appendix), so the

question in this case is slightly different: whether Freedman and FW/PBS require a

guarantee of prompt judicial resolution of license denials.




                                          8
      This is an issue on which there has been some disagreement since the

Supreme Court decided FW/PBS. Justice O’Connor’s plurality opinion in that case

says that “there must be the possibility of prompt judicial review in the event that

[a] license is erroneously denied.” FW/PBS, 493 U.S. at 228 (emphasis added).

Later she says that the Dallas ordinance violates the First Amendment because “[i]t

also fails to provide an avenue for prompt judicial review . . . .” Id. at 229

(emphasis added). In concurrence, Justice Brennan does not explicitly disagree

with the plurality opinion on this issue, but he characterizes the right to prompt

judicial review differently, referring to it as the right to “a prompt judicial

determination.” Id. at 239 (Brennan, J., concurring) (citing Freedman, 380 U.S. at

58-59).

      This difference between Justice O’Connor’s and Justice Brennan’s

characterizations of the right to prompt judicial review has spawned a split in the

circuits. The First, Fifth and Seventh Circuits hold that for licensing ordinances,

prompt judicial review only means access to prompt judicial review. See TK’s

Video, Inc. v. Denton County, 24 F.3d 705, 709 (5th Cir. 1994), followed in Grand

Brittain, Inc. v. City of Amarillo, 27 F.3d 1068, 1070-71 (5th Cir. 1994) (per

curiam); Graff v. City of Chicago, 9 F.3d 1309, 1324-25 (7th Cir. 1993) (en banc);

Jews for Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir.


                                            9
1993). On the other side are the Fourth and Ninth Circuits and arguably the Sixth,

which hold that Freedman and FW/PBS require a guarantee of prompt judicial

resolution. See Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1101-02

(9th Cir. 1998), followed in 4805 Convoy, Inc. v. City of San Diego, — F.3d —

(9th Cir. 1999); 11126 Baltimore Boulevard, Inc. v. Prince George’s County, 58

F.3d 988, 998-1001 (4th Cir. 1995) (en banc); cf. East Brooks Books, Inc. v. City of

Memphis, 48 F.3d 220, 224-25 (6th Cir. 1995) (state certiorari procedures an

insufficient guarantee of prompt judicial review).

      We have not yet decided whether Freedman and FW/PBS require

municipalities to guarantee prompt judicial resolution of appeals from license

denials. In Redner, the Citrus County ordinance did not even provide access to

prompt judicial review. See 29 F.3d at 1501-02. We did not hold that mere access

is insufficient. But see 4805 Convoy, — F.3d at — n.7 (reading Redner as saying

that access to judicial review is insufficient). We address that issue for the first

time today.

      Boss Capital makes a good argument that Freedman requires prompt judicial

resolution of censorship decisions, but in the end we conclude that access to

prompt judicial review is sufficient for licensing decisions. Freedman itself

unmistakably requires “a prompt final judicial decision.” 380 U.S. at 59; see also


                                           10
id. (“final judicial determination on the merits”; “judicial resolution”). Moreover,

Freedman’s progeny also require an assurance of a prompt judicial decision. See

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 560 (“a prompt final judicial

determination must be assured”) (1975); United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 371-74 (1971) (plurality opinion) (in Part I of the

plurality opinion, joined by six Justices, imposing time limits for completion of

judicial proceedings in obscenity forfeiture cases); Blount v. Rizzi, 400 U.S. 410,

417 (1971) (“a final judicial determination on the merits within a specified, brief

period”).

      Still, none of these pre-FW/PBS cases involved a licensing ordinance for

adult entertainment establishments. Instead they involved censorship. In

Freedman, for instance, state law authorized public officials to ban movies it found

to be obscene. 380 U.S. at 52-53 n.2. For good reason, Freedman ascribes great

importance to prompt judicial resolution of the validity of these sorts of decisions;

courts’ relative institutional insulation from political pressures makes them less apt

to erroneously suppress unpopular expression. See Henry P. Monaghan, First

Amendment “Due Process”, 83 Harv. L. Rev. 518, 520-24 (1970).

      The dangers of censorship are less threatening when it comes to licensing

schemes. Unlike censors, who pass judgment on the content of expression,


                                          11
licensing officials look at more mundane and ministerial factors in deciding

whether to issue a license. See 11126 Baltimore Boulevard, 58 F.3d at 1003

(Niemeyer, J., concurring in part and dissenting in part) (no need for a guarantee of

a prompt judicial decision in the absence of a direct prior restraint on speech); see

also FW/PBS, 493 U.S. at 229 (Licensing officials do not pass judgment “on the

content of any protected speech”; rather, they look at “the general qualifications of

each license applicant, a ministerial action that is not presumptively invalid.”).

Indeed, Shuttlesworth limits licensing officials to the mundane and the ministerial.

See Lady J. Lingerie, 176 F.3d at 1362 (holding that Shuttlesworth requires

licensing standards to be “precise and objective”). Furthermore, applicants for

adult entertainment licenses, unlike movie distributors who might show a given

film in hundreds of theaters around the country, have every incentive to stick it out

and see litigation through to its end. Cf. FW/PBS, 493 U.S. at 229-30 (plurality

opinion) (no need to put burden of going to court and burden of proof on licensing

officials because license applicants have the incentive to go to court). The need for

a prompt judicial decision is therefore less compelling for licensing ordinances

than for censorship schemes.

      In sum, although Freedman appears to require prompt judicial resolution of

censorship decisions, licensing decisions are different. We believe this is a


                                          12
situation for “treating unlike things differently according to their differences.”

Lyes v. City of Rivera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc).

Accordingly, we agree with the First, Fifth and Seventh Circuits and hold that

access to prompt judicial review is sufficient for adult entertainment licensing

ordinances. Casselberry’s ordinance provides that access: “Any decision of the

Community Development Department pursuant to Division 2 (License) may be

immediately reviewed as a matter of right by the Circuit Court upon the filing of an

appropriate pleading by an aggrieved party.” Casselberry Code art. III, § 14-99(c)

(emphasis added). We therefore conclude that Casselberry’s ordinance does not

run afoul of Freedman.

                                           B.

      Boss Capital also contends that Casselberry’s adult entertainment licensing

ordinance is invalid because it gives licensing officials too much discretion in

violation of Shuttlesworth. Whatever the merits of this argument, we conclude that

Boss Capital has not preserved this issue for appeal. Boss Capital’s first complaint

raised the issue, but Casselberry has since repealed one of the provisions to which

Boss Capital initially objected. After that, Boss Capital scarcely mentioned the

issue before filing its brief with us. The district court did not address the issue.

This is not enough to preserve an issue for appeal, so we decline to address it. See


                                           13
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1999) (en

banc).

                                          III.

         In conclusion, we hold that Casselberry’s licensing ordinance is valid and

that its zoning ordinance might be, depending on the district court’s determination

on remand whether any additional sites are available for adult entertainment

establishments.

         AFFIRMED in part and REMANDED.




                                           14
                             APPENDIX

                   Casselberry Code of Ordinances

            ARTICLE III. ADULT ENTERTAINMENT
                     ESTABLISHMENTS

                    DIVISION 1. GENERALLY

Sec. 14-66. Definitions.

       The following words, terms and phrases, when used in this
Article, shall have the meanings ascribed to them in this Section,
except where the context clearly indicates a different meaning:

                                * * *

      Adult Performance Establishment

      (a)    shall mean an establishment where any employee:

             (1)   engages in a private performance or displays or
                   exposes any specified anatomical areas to a patron,
                   regardless of whether the employee actually
                   engages in dancing:
             (2)   wears any covering, tape, pastie, or other device
                   which simulates or otherwise gives the appearance
                   of the display or exposure of any specified
                   anatomical areas, regardless of whether the
                   employee actually engages in dancing:
             (3)   offers, solicits, or contracts to dance or perform
                   with a patron and accepts any consideration, tip,
                   remuneration or compensation from or on behalf of
                   that person: or
             (4)   dances or performs with or within three (3) feet of
                   a patron and accepts any consideration, tip,
                   remuneration, or compensation from or on behalf
                   of that person.

                                  15
       (b) It is an affirmative defense that an establishment is not an
adult performance establishment if the establishment is a bona fide
private club whose membership as a whole engages in social nudism
or naturalism as in a nudist resort or camp, or such other establishment
in which the predominant business or attraction of the establishment is
not the offering to customers of a product, service, or entertainment
which is intended to provide sexual stimulation or sexual gratification
to such customers, and the establishment is not distinguished by an
emphasis on or the advertising or promotion of materials relating to or
employees depicting, describing, displaying, exposing, or simulating
sexual activities or specified anatomical areas.

      (c) An adult entertainment establishment shall not be
deemed a place provided or set apart for the purpose of exposing or
exhibiting a person’s sexual organs in a manner contrary to the first
sentence of Section 800.03, Florida Statutes, the State’s indecent
exposure statute as set forth in the decision of the Supreme Court of
Florida in the case of Hoffman v. Carson, 250 So.2d 891 (Fla. 1971),
appeal dismissed 404 U.S. 981 (1971).

       Adult entertainment establishment means an adult arcade, adult
bookstore, adult motel, adult performance establishment, or adult
theater.

                                 * * *

      Residential zoning district means any area legally zoned or
designated by an adopted comprehensive plan in a manner primarily
intended for dwellings.

                                 * * *

Sec. 14-74. Location generally.

      All adult entertainment establishments within the City of
Casselberry, Florida shall be limited to the C-G (Commercial-
General) zoning district and shall be subject to all restrictions
enumerated in this Code.

                                   16
Sec. 14-75. Prohibited locations.

       (a) No person shall cause or permit the establishment,
substantial enlargement or transfer of ownership or control of an adult
entertainment establishment within 1,000 feet of any other adult
entertainment establishment or any church, school, public park or
public recreation area, or within 1,000 feet of an area zoned for
residential use or designated by an adopted comprehensive plan in a
manner primarily intended for dwellings. For purposes of this
Section, the term “substantial enlargement” shall mean increasing the
size of the permitted or licensed premises by more than ten percent of
the original licensed premises.

       (b) For the purposes of this Section, distance measurements
shall be made in a straight line, without regard to intervening
structures or objects, from the nearest property line of the property
used as an adult entertainment establishment to the nearest property
line of the premises of a church, school, public park or public
recreation area, or to the nearest boundary of any area legally zoned or
designated by a comprehensive plan in a manner primarily intended
for dwellings, without regard to municipal boundaries. Measurement
of distances between adult entertainment establishments shall be from
lot line to lot line at their nearest points.

Sec. 14-76. Nonconforming uses.

       (a) Generally. An adult entertainment establishment which,
on the effective date of the ordinance from which this Article is
derived, does not comply with the distance requirements of Section
14-75, shall be subject to the nonconforming use provisions contained
in the zoning code of the City.

       (b) Residential rezoning. If an area is zoned residential or
designated by a comprehensive plan in a manner primarily intended
for dwellings for the first time, or if an area is rezoned for residential
use or redesignated by a comprehensive plan in a manner primarily
intended for dwellings and lies within 1,000 feet of an existing adult
entertainment establishment, the adult entertainment establishment

                                    17
shall be considered an existing nonconforming use, as defined in
Subsection (a) of this Section, from the effective date of the rezoning
ordinance.

                       DIVISION 2. LICENSE

Sec. 14-96. Required; business classifications.

       (a) It shall be unlawful for any person to operate an adult
entertainment establishment without having first obtained an adult
entertainment license issued by the Community Development
Department which is applicable for such establishment, or to continue
to operate an establishment where that person knows or has reason to
know that the license of the establishment is under suspension, has
been revoked or has lapsed. The operation of an adult entertainment
establishment without a valid license, where required, shall be
grounds for the closing of the establishment upon a finding of fact by
a court or other body with proper jurisdiction that the establishment
has no valid license.

       (b) Adult entertainment licenses referred to in this Article
shall be classified as follows:

             (1)   Adult bookstore
             (2)   Adult theater
             (3)   Adult performance establishment

       (c) An adult entertainment license for a particular adult
entertainment establishment shall be limited to one (1) classification
of license.

Sec. 14-99. Issuance or denial.

      (a)    Generally.

      (1)    Upon the completion of the investigation and review of
             an application as required in this Division, upon
             determination that the applicant meets the requirements

                                   18
            of this Division, and upon payment of the appropriate
            license fee by the applicant, the Community
            Development Department shall issue the license.
      (2)   If, after review and investigation as provided in this
            Division, the Community Development Department
            determines that one or more of the reasons for denial
            stated in Subsection (b) of this Section exist, the
            application shall be denied, and the Community
            Development Department shall make a written report of
            the denial and the reasons therefor. A copy of the report
            shall be sent by certified mail to the designated return
            address of the applicant on the application.

      (b) Grounds for denial. The application for a license shall be
denied if one or more of the following conditions are found to exist:

      (1)   The application does not comply with the requirements
            of this Article.
      (2)   The application contains material false information.
      (3)   The applicant or any of the individuals listed in Section
            14-97(b)(1) has a license under this Division which has
            been suspended or revoked as a result of the
            implementation of Section 14-77.
      (4)   The granting of the application would violate a statute or
            ordinance or an order from a court of law which
            effectively prohibits the applicant from obtaining an adult
            entertainment license.

       (c) Judicial review. Any decision of the Community
Development Department pursuant to Division 2 (“License”) may be
immediately reviewed as a matter of right by the circuit court upon the
filing of an appropriate pleading by an aggrieved party.

Sec. 14-101. Time limit for action on application.

       The Community Development Department shall grant or deny
all applications submitted hereunder within forty-five (45) days from
the date that a completed application with application fee was

                                  19
submitted. Upon expiration of the 45th day, the applicant shall be
permitted to begin operating the establishment for which a license is
sought, unless and until the Community Development Department
notifies the applicant of a denial of the application and states the
reason(s) for that denial.


PART III. UNIFIED LAND DEVELOPMENT REGULATIONS

                              Chapter II

           DISTRICT AND GENERAL REGULATIONS

            ARTICLE VIII. NONCONFORMING USES
             AND NONCOMPLIANT STRUCTURES

Section 2-8.9.     Abandonment or discontinuance of a
                   nonconforming use.

       If a nonconforming use is removed or abandoned, or ceases for
a continuous period of more than 90 consecutive days, any and every
future use of the premises shall be in conformity with the use
provisions of the land development regulations. All material and
equipment associated with the abandoned or discontinued
nonconforming use shall be completely removed from the premises by
its owner within six months after the expiration of the 90-day period.
No additional structure which does not conform to the requirements of
this Article shall be erected in connection with such nonconforming
use of land.




                                  20
