United States District Judge Ursula Ungaro ruled on Monday that adult-entertainment-developer Isle of Dreams L.L.C. lacked legal standing to challenge North Bay Village’s adult-specific code; the first-amendment lawsuit against NBV that centered around a controversial strip club proposal has been dismissed.
The judge’s opinion centered around Isle of Dreams’ inability to be redressed, or remedied, if it received a favorable ruling. Therefore it’s claim lacks legal standing, and the court could not invoke jurisdiction.
The development company, whose top officer is Scott Greenwald, had argued that the NBV’s adult entertainment ordinances exposed them to “arbitrary denials” and imposed “an unconstitutional prior restraint,” or censorship, on their plans to have nude dancing in their establishment. Nude dancing is generally seen as a protected expression.
According to Ungaro, the plaintiff loses legal standing because his injuries arrive from the denial of both a conditional-use permit required by the adult entertainment ordinance, and the city’s approval of the site application. The developer did not directly challenge the application process in the filed complaint.
Ungaro wrote: “Even if this court grants all of the relief Isle of Dreams requests, Isle of Dreams will still be unable to operate it’s club because it has not received site approval from the City Commission, and it has not challenged, in any way, the City Commission’s denial of it’s application for site approval.”
The application was never heard by the Commission because the administration contends that the developer never submitted a full application. Records show that attorneys for IOD argued that an application packet submitted October 14, 2011 was not given it’s day in front of the commission as code dictates would happen within 60 days of the submission.
As previously reported in the SunPost, communications between the developer and officials from NBV seem to indicate that the city looked at a February 14, 2012 submission as a brand new application submission. The developer’s legal team denies they ever resubmitted the application, and see the October day as the true date of submission.
Even with mentions of these circumstances in the filed documents of the case, it was determined that there was no direct challenge to application process. So without that important caveat, the case’s legs collapsed.
There were three things the judge took into account to see if a plaintiff demonstrated standing: a concrete injury, that it’s traceable to the defendant, and whether a favorable ruling would remedy that injury.
IOD passed the first couple of factors.
“Isle of Dreams’s injury is not conjectural or speculative,” said the ruling of the first factor. “Pursuant to the provisions of the North Bay Village Code governing adult entertainment, Isle of Dreams cannot provide expressive nude dancing without first obtaining a conditional-use permit. “
The second was easy: “Furthermore, the injury is traceable to the actions of Defendant, City of North Bay Village, whose ordinance prohibits Isle of Dreams from dancing nude prior to obtaining a conditional-use permit from the City Commission.”
IOD failed the third.
“The Complaint very specifically challenges § 152.111.04 of the North Bay Village Code and requesting the Court enjoin enforcement thereof,” wrote Ungaro.
As of press time, the SunPost was unable to reach Scott Greenwald to see if his company would seek an appeal.
At the moment this is a victory for a large portion of the residents in NBV who opposed the strip club. It inspired a vocal movement against it. The proposed strip club was planned to be built on the old WIOD plot on 1415 NE 79st, and adjacent to WSVN channel seven.