              Case: 18-11736   Date Filed: 04/24/2019   Page: 1 of 9


                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 18-11736
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:15-cv-01521-MMH-PDB

LAVERANUES COLES,
an Individual,
TROUBLE LIVIN LIFE LLC,
a Florida Limited Liability Company,
                                                         Plaintiffs-Appellants,

                                       versus

CITY OF JACKSONVILLE,
a Florida Municipal corporation,

                                                         Defendant-Appellee.
                          ________________________

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

                                   (April 24, 2019)
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Before ED CARNES, Chief Judge, and JILL PRYOR, and ANDERSON, Circuit
Judges.

PER CURIAM:

       Laveranues Coles filed suit against the City of Jacksonville under 42 U.S.C.

§ 1983 claiming that the City’s zoning decisions regarding his business violated his

First and Fourteenth Amendment rights. The district court granted the City’s

motion for summary judgment and dismissed Coles’ claims without prejudice for

lack of subject matter jurisdiction because it found that Coles’ failure to complete

the City’s zoning appeals process rendered his complaint unripe. 1 Coles now

appeals.

                                               I.

       Coles leased a property in Jacksonville in 2013 with the intent of opening a

“bikini bar” that would feature non-nude dancing and sell alcohol. Coles spent

hundreds of thousands of dollars renovating the property and purchasing liquor

licenses in preparation for opening the bikini bar. In early 2014 he opened the

property as a restaurant while he attempted to obtain three zoning exceptions. At

the time he rented the property, Coles was permitted to operate a dancing

entertainment establishment as of right without selling alcohol, but he needed a


       1
         The district court’s order simultaneously granted the City’s motion for summary
judgment and dismissed the case without prejudice. Because the ground for summary judgment
was identical to the basis for dismissal — the lack of subject matter jurisdiction — the two are
not inconsistent.
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zoning exception in order to sell alcohol. He also needed an exception to use the

entire square footage of the property without providing additional parking. Finally

he needed a waiver of local minimum distance requirements because of the

location’s proximity to two nearby churches.

      To obtain a zoning exception, city law requires applicants to submit an

application to the City Planning and Development Department. The Department

then issues an advisory report to the City Planning Commission. The Commission

must then hold a public hearing and render a decision. An applicant can appeal an

adverse decision to the City Council through its Land Use Zoning Committee

(LUZ Committee).

      Coles filed applications for these three exceptions in December 2013 and

January 2014. The Development Department issued a favorable report, but the

Planning Commission rejected Coles’ applications after hearing from two

community members who expressed concern about parking and the effect the

bikini bar would have on development in the neighborhood. Coles did not appeal

this decision to the LUZ Committee, but instead filed new applications the

following year.

      In August 2015 the Planning Commission held another hearing. The

Development Department again spoke favorably about the applications while

community members voiced the same concerns. The Commission voted to defer

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the matter until their next meeting two weeks later and instructed Coles to work

with the Development Department to address parking concerns in the interim.

      At the next Planning Commission meeting Coles presented parking

agreements he had made with neighboring businesses. But the Commission

continued to have concerns about parking and the increased number of adult

businesses in the area and rejected Coles’ applications. This time Coles appealed

the decision to the LUZ Committee. The Committee found that Coles needed to

apply for an additional exception because the City had recently enacted new

distance requirements between bikini bars and other adult entertainment

establishments. The Committee remanded the matter back to the Planning

Commission and gave Coles sixty days to file an application for an additional

exception.

      Coles took no further local action, but instead filed a complaint in federal

court. Coles brought an as-applied challenge to the Zoning Code, contending that

the denial of his requested exceptions violated his substantive due process rights

because it was based on discrimination against his planned speech. The district

court dismissed the case without prejudice for lack of subject-matter jurisdiction

after determining the complaint was unripe because Coles had not obtained a final

decision from the City. Coles filed a motion for reconsideration, which the district

court denied. He now appeals.

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                                                 II.

       We review de novo a district court’s decision to grant summary judgment,

drawing “all reasonable inferences in the light most favorable to the non-moving

party.” Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary

judgment may be granted only if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986)

(quotation marks omitted). A genuine issue of material fact exists when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248, 106 S. Ct. at 2510. “The ripeness of a claim is a legal question

that we review de novo.” Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach,

727 F.3d 1349, 1356 (11th Cir. 2013).

                                                III.

       Coles first challenges the district court’s determination that it did not have

subject-matter jurisdiction over his complaint because his claims were unripe. 2 We



       2
          In its reply brief the City asserts that we do not have appellate jurisdiction to consider
this issue because the district court’s dismissal without prejudice was not a final order. It was.
The City argues that there was no final judgment because the district court dismissed Coles’
complaint without prejudice and he is free to file another complaint after exhausting his
administrative remedies. That a dismissal is without prejudice does not render it non-final and
unappealable. See Hertz Corp. v. Alamo Rent-A-Car, 16 F.3d 1126, 1133 n.14 (11th Cir. 1994)
(quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2376
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have held that when a plaintiff brings an as-applied due process challenge to a

municipality’s zoning decision, the claim “is not ripe until the decision denying

commercial zoning has been finally made and applied to the property.” Eide v.

Sarasota County., 908 F.2d 716, 726 (11th Cir. 1990). A final zoning decision by

the municipality is a prerequisite for a federal suit because “zoning is a delicate

area where a [municipality]’s power should not be usurped without giving the

[municipality] an opportunity to consider concrete facts on the merits prior to a

court suit.” Id. at 726 n.17. When a municipality’s “variance process explicitly

provides for an ‘appeal’ to the authoritative local decisionmaker . . . the appeal

must be fully pursued before any definitive ‘final’ decision occurs.” Reahard v.

Lee County., 30 F.3d 1412, 1416 n.10 (11th Cir. 1994).

       Here it is plain that a final decision was never reached because Coles

abandoned the process in favor of this federal suit after the LUZ Committee

remanded his applications back to the Planning Commission. City law is clear that

Coles had other avenues for seeking relief, and it is undisputed that he did not

pursue them. See id.

       Coles’ argues that his claims are ripe because the City’s non-final decisions

denying his applications were not supported by substantial evidence and were




(1971)) (“A dismissal is a final order, and appealable as such, whether it is with or without
prejudice.”).
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instead motivated solely by bias toward the type of speech his bikini bar would

feature. Even if these claims were supported by the record, they are beside the

point. We cannot determine whether the City’s treatment of Coles’ applications

violated his constitutional rights because the City never had an opportunity to

make a final decision. Regardless of Coles’ perception that the local zoning

process was biased and dilatory, he was obligated to complete that process before

bringing a federal suit.

                                          IV.

      Coles next argues that even if his complaint is unripe he is entitled to an

exception under the futility doctrine. “An exception to the final decision

requirement exists where it would be futile for the plaintiff to pursue a final

decision.” Strickland v. Alderman, 74 F.3d 260, 265 (11th Cir. 1996). When

discussing futility in other contexts we have noted that “[t]he burden of

demonstrating futility is on the party seeking [an] exemption.” M.T.V. v. Dekalb

Cty. Sch. Dist., 446 F.3d 1153, 1159 (11th Cir. 2006) (discussing futility in the

context of a federal disability suit when the plaintiffs had failed to exhaust

administrative remedies).

      We are not convinced that it would have been futile for Coles to complete all

necessary exemption applications and obtain a final decision from the City. Coles’

primary argument seems to be that the LUZ Committee was certain to ultimately

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reject his applications because the Planning Commission had rejected his

applications in the past. But the LUZ Committee never had an opportunity to

consider a complete application from Coles and the intermediate decisions of the

Planning Commission do not show with certainty that the LUZ Committee would

have rendered a final decision against Coles.

      The only evidence Coles presents that his application would have ultimately

been rejected other than the prior decisions of the Planning Commission is the

report of an expert witness, Paul Harden. Harden is an attorney and zoning

lobbyist who claims to have extensive experience before the City’s zoning

authorities. In his report Harden wrote that:

      Based on my experience and the Planning Commissions prior
      decisions, any attempt to seek additional exceptions or waivers from
      the Planning Commission after the matter was remanded by the LUZ
      Appeal Board would have been futile. And given the history any
      further appeal after remand would not likely have resulted in a
      favorable decision for the Plaintiffs.

As the district court noted, this testimony is highly speculative and does not

address “the undisputed fact that Coles had to address the distance requirement

imposed by the Code in order to submit a complete application.” The City’s final

decisionmaker never had a single opportunity to review such a complete




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application, and the adverse non-final decisions of an intermediate body are

insufficient to establish that it would have been futile to provide one. 3

       AFFIRMED.




       3
          Coles also challenges the district court’s order denying his motion for reconsideration,
which we review only for abuse of discretion. Corwin v. Walt Disney World Co., 475 F.3d
1239, 1254 (11th Cir. 2007). In doing so he raises the same issues regarding the ripeness of his
claims that we have rejected under de novo review, and also seeks to inappropriately relitigate
old matters disposed of in the district court’s order granting summary judgment. See Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007) (noting that a motion for reconsideration cannot be
used “to relitigate old matters, raise argument or present evidence that could have been raised
prior to the entry of judgment”) (quotation marks omitted). The only new issue Coles presents is
whether the district court abused its discretion in determining that he improperly raised
procedural due process claims for the first time in his reply to the City’s motion for summary
judgment. It did not.
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