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

                                                       v.

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

                                                 No. 98-2802.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                                 Sept. 3, 1999.

Appeal from the United States District Court for the Middle District of Florida.(No. 96-CV-463-ORL-22B),
Anne C. Conway, Judge.

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

        DUBINA, Circuit Judge:

        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



   *
   Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of Georgia, sitting
by designation.
appendix). The ordinance grandfathers establishments in existence in Casselberry as of the ordinance's

effective date. See Casselberry Code art. III, § 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, 106

S.Ct. 925, 89 L.Ed.2d 29 (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, 106 S.Ct. 925. 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. 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, 106 S.Ct. 925.

        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



                                                       2
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 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 Court has faced it and left the question open. See

Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76-77, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); id. at 78,

101 S.Ct. 2176 (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,



                                                         3
347, 56 S.Ct. 466, 80 L.Ed. 688 (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 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, 106 S.Ct. 925; 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



                                                        4
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 does not provide for prompt judicial review in compliance

with Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (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, 89 S.Ct. 935, 22 L.Ed.2d 162 (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, 110 S.Ct. 596, 107 L.Ed.2d 603 (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.

        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, 110 S.Ct. 596

(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, 110 S.Ct. 596 (emphasis added). In



                                                      5
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, 110 S.Ct. 596 (Brennan, J., concurring) (citing Freedman, 380 U.S. at 58-59, 85

S.Ct. 734).

        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.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, 85 S.Ct.



                                                       6
734; see also 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, 95 S.Ct. 1239 ("a prompt final judicial determination must be assured") (1975);

United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 371-74, 91 S.Ct. 1400, 28 L.Ed.2d 822 (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, 91 S.Ct.

423, 27 L.Ed.2d 498 (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, 85 S.Ct. 734. 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, 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, 110 S.Ct. 596 (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



                                                      7
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, 110 S.Ct. 596 (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 situation for "treating unlike things differently

according to their differences." Lyes v. City of Riviera 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 Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (en banc).

                                                     III.

        In conclusion, we hold that Casselberry's licensing ordinance is valid and that its zoning ordinance



                                                      8
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.

                                                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

                                        APPENDIX—Continued
                         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.

                 (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


                                                      9
        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 disAPPENDIX—Continued
        missed 404 U.S. 981, 92 S.Ct. 453, 30 L.Ed.2d 365 (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.

        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
APPENDIX—Continued
        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


                                                      10
        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 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 APPENDIX—Continued
          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 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 Depart-

                                        APPENDIX—Continued
                         ment shall make a written report of the denial and the reasons therefor. A copy of


                                                      11
                         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 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 APPENDIX—Continued
         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.

                                         APPENDIX—Continued


                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


                                                     12
nonconforming use of land.




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