with judge joel pryor and judge julie carnes we welcome you this morning and this is the last day of our oral argument this week and probably everybody's ready to finish up this begin holiday thinking about the holidays i am assuming you all are familiar with our traffic light system and so i won't go through that but i'm going to try to enforce that and with that  we will get underway with the first case of tokyo l l c versus going to county court on a dismissal from a twenty six who are in all parties and the court the district court everyone agrees there are still federal claims to be explored the first dismissal was based on primarily although there was a suggestion in the order of the three cents order that the case might not be right that was based on representations by going to county that it was not forcing or planning to enforce the new adult entertainment ordinances  but interestingly a day after when i county made that representation before this court on the first appeal it filed the state court lawsuit and a couple weeks later notified this court that the ripeness argument was no longer on the table and that the case or scuse me the appeal before this court should be dismissed on younger abstention graham so that brings us to this case we filed a motion for leave to amend the complaint  we did our very best to lay out the facts with all particularities did our best to lay out the claims and spirit and lit really the letter of the complaint is that the trilogy of ordinances u operation which included selling over one hundred sexual devices so the and i feel like she should tell the court these are not the only cases i do i feel like i'm always here on the sexual  so the district court this time around said hey there's no standing our position is that that exalts form over substance we did everything that we think you could do to make it with three with regard to the damages claim on the old ordinances and i can't find in your second amended complaint where you say that you didn't do anything do something you know you didn't sell devices you lost profits where is that in the complaint  just prior paragraphs sixty six sixty seven sixty nine through seventy and of course in the advantage clause where we play pray for nominal damages we have laid out what we believe  license suspended you're forced to go hire an attorney they don't want to take this but but what did you do as a result of those threats or that those concerns you know what did you not do that you otherwise would have done well they are that there are two grounds let me answer your question first they were timid and they had to hire a law firm to push their case so yes the damage is the money spent on attorneys that of course directly impacts profits and there is an allegation that it's goodwill has been damaged although that's not played with particularly there is that allegation that goodwill has been damaged it's some people say there's no such thing as bad p r but when you're in the paper and you're being told that you're an illegal operation some people don't want to go to your store anymore that's that's the weaker admittedly when it comes to  it's always been an illegal business it can never be a lawful non conforming business here go it can never meet section two sixty dash ten which is the general non conforming grandfather provision in the queen a county where as you can ever meet to sixty d s criteria to be a lawful non conforming use so as i didn't really judge her ashes or to make the distinction in his standing analysis between the damages climb and the declar only damages and by that i mean money damages your alleging are nominal damages you're pretty much going to lose in terms of standing there are some exceptions i think there's a side to judge mcconnell's decision where there when there's a real legal dispute and there are real legal ramifications and there's a legal principle to be vindicated such as land title the speech libel reputation but when you get down to all of it and take all the boards out now you're talking about county takes the position that tokyo was illegal from its inception it doesn't qualify as being a lawful non conforming use is this considered to be an unlawful non conforming use and therefore can't get the grandfather rights that it otherwise would be would be available to it under the general ordinances it going to county so that that's not a money issue necessarily but it's certainly it's the crux of the case  so we have this standing question and the district court came up with the theory that because the unified development ordinance did not list sexual device store at the use was always prohibited we have brief that thoroughly if the court has any questions i would just say this it you know rule eight says what it says  to make it stop operating in this war matt and we asked the district court for if we clarified our position in the response to the motion to dismiss we asked if it was a hypertechnical requirement we asked for permission to amend the complaint to make that clarification it would have just required eliminating maybe a word or two hyper hyper technical i remind the court that the u s supreme court and johnson versus city  shelby twenty fourteen a summary reversal of the fifth circuit i believe said look having the civil rights case of course having informed the city of the factual basis for their complaint they were required to do no more than to stave off threshold dismissal for want of an adequate statement of their claim and in that case the u s supreme court let the plaintiff add section one thousand nine hundred eighty three as a as a claim here we're being told that we just we didn't  add the one hundred point one section in our complying if that makes sense younger i think the younger issue melts away if you do reach and agree with us on the standing far as the new ordinance assuming that's what we're talking about what we're dealing with the district court had done nothing on the matter whereas the state court had had actually has some substantive work out here and they were getting going on that district court had done nothing and given the case law on younger and the fact it is an abuse of discretion discretion standard what's your best argument why judge thresh abused his discretion when he did  younger is it that when you're talking about civil law enforcement civil prosecutions that there's some notion that the state has a right to do that it's just like we don't step in on a criminal case in the middle no matter how we get to that point and interfere and so the state has a right to enforce its laws and certainly if you've got a scenario on the case law where the federal case has been going on there lot has happened or they've done more but here the only substantive action on the case had been in the state and there even if it was a mistake by judge threshed as it turns out he really had done nothing on this new that's correct and well judge carnes i would say that the again i think that the the amount of work done on the  of this case has been understated we didn't have we didn't have an evidentiary plenary injunction hearing but that's only because we bridged thoroughly briefed the initial issues and we agreed by consent to a multi month injunction that's what happened and i would say that the the scene running out of time the second round of borden says that were adopted back when i county were plainly a reaction to my client opening the store asking to operate in this format it's part of a continuum is part of an effort to quell or stop the store from operating and format complaint should have been amended and you know just like we'll fifteen you look back to the original filing da it's a little artificial to separate midstream based on what we did allege bad faith exception to younger but you know you can see what happened they saw an opportunity to try to derail tokyo thing get it out of this court that was the chosen judge prior's question is directly on point there's no allegation of damages in his argument mr wiggins just pointed to a paragraph sixty six sixty seven sixty eight the second amended complaint i have those in front of me there's no allegation that they stop sexual selling section of isis in fact the contrary is true record entry forty four which is the second in many complaint paragraphs seventy eight says that tokyo expended a great deal of time and money to open and begin operating a retail theme retailer a robotic theme retail store that displays and sells well over one hundred sexual devices so they've been doing that from day one they never stopped doing that and there's no allegation that they did and it's their burden under f w p b s versus city of dallas from the u s supreme court to affirmatively plead facts that show the jurisdictional element of the damages claim which of course was the only claim left against the old adult codes after this court's previous ruling p b s or city of dallas happens to be another adult entertainment case but that case stands for the proposition that the facts that are necessary to establish standing cannot be inferred argumentatively from the pleadings you actually have to say what judge prize question was about which is in response to this letter from the zoning administrator we stop selling sexual s and therefore separate damages in the form of lost profits and it's not about the declaratory judgment standing with regard to that climb but well i mean the amended complaint does  now here's the important part about that in this court's original ruling in two thousand and sixteen from the first dismissal this court ruled that it was proper for the district court to dismiss the declaratory and  e relief claims against the old adult codes which is what he's talking about so that was not even on the table when it came back down all that was left pertaining to the old adult entertainment codes was the claim for damages and judge rational didn't distinguish between the two at page ten of his order which is record entry sixty two at the bottom of the pace nine of the order he explains that the most important part about the injury fact in standing is that the complaint nothing in the complaint shows that tokyo valentino actually suffered an injury as a result of the old regulations that on the next page bottom of that full page paragraph almost he says while the threat of future harm is enough to show standing when for example a plaintiff is seeking an injunction or when damages may continue into the future it is not enough when only seeking comp compensation for past damages because tokyo valentino was never actually prevented from selling adult sexual devices under the old regulations it never suffered any actual harm and so that's all that was left when the case came back to judge the rash with regard to the old adult codes there's another reason give me the  t number and i'm sorry i was speaking from documentary sixty two at page ten pages nine in ten and the other problem is that judge trash had in addition to the fact that there was no evidence that they ever stop selling sexual devices in fact they're making their claim that they've had a continuous lawful non conforming use by continuously selling well over one hundred sexual devices so there's no allegation of damages that would prefer preserve standing as to the old ordinances but there's another reason that they lack state and that's redress ability and they never challenge you to zero to thirty dash one hundred and that is a rule that's preexisting it's generally a political in the county zoning code that if the is not listed in the table of uses it is presumptively prohibited they never challenge that and judge trash pointed out with very strong clarity that they try to challenge a two thousand and fifteen ordinance that amended a couple definitions in the uniform development ordinance but they never challenged the preexisting longstanding rule that a use that's not listed has never been used is not listed in the table of uses therefore it's prohibited and that's cage outdoor versus clay county that's this court's decision from two thousand and seven and which a billboard company tried to erect a billboard and it was denied a permit by the clay county authorities when it got to summary judgment it turned out that there was another provision of law a state law the florida building code in construction in plan review requirements that they didn't me and even though that arose much later this corps affirmed a dismissal for lack of standing because even if they had fully complied with the old the county signed ordinance they didn't meet the standards under the state law and their billboard could be erected and in this case we have a situation where business came in it's just like the start of this case that judge pryor wrote the opinion on four months ago in august it's the same guy it's mr morris and he got a license to do a tobacco store and then guess what less than two weeks later just as in that case opening paragraph of judge fryers opinion less than two weeks later he says oh i'm going to add all these sexual devices and that's what he did he got a letter from the zoning news traitor and he did nothing but file a federal lawsuit i'm sorry filing a lawsuit hiring lawyers not a claim for damages and otherwise article three standing requirements would be  so there is no basis for that certainly judge carnes is correct that the embarq decision of this court that nominal damages claim certainly doesn't save claims against the old adult codes but so there's two independent standing defects there's the lack of any injury in fact because they've continuously sold sexual devices since day one and they tell us that in paragraph seventy eight of their complaint and they make no affirmative allegation to the contrary that they stop selling sexualizes which is their duty under after b p s to preserve state and on the damages claim and then we have this redress ability defect of a code that they never challenged and that's two thirty dash one hundred so for those two reasons the judge of the district court judge trash was correct to dismiss on standing grounds now if i could turn to younger and state i want to mention one other thing there was some colloquy there at the beginning of my opponent's argument about the sequence of when things happened that was just not true or accurate under the record he said that the city came in december of two thousand and fifteen and said the motion to amend the complaint wasn't right because the county had not yet in force or threatened to enforce its ordinance and that's true but it's not true that the very next day we filed a lawsuit that's that's crazy what happened is in december of two thousand and fifteen there was a like a ninety day grace period in effect in the ordinance that didn't expire until sometime in january and what happened was we didn't know that since the new code allowed them to sell up to one hundred section vices if they would just sell ninety nine sexual devices and run it back a store like they got a license for but they didn't do that and so in two thousand and sixteen what happened is they continued operating illegally in violation of the october two thousand and fifteen adult code amendments and they continued operating without even a general business license because their tobacco license had expired so nine months after continuously violating the ordinance then the five county finally filed suit for an injunction under the new codes that the district court had never done anything with and why is that relevant to younger absten was relevant to younger abstention because in september of two thousand and sixteen the county went to court on its motion to state court on its motion for polygamy injunction to stop the ongoing violations of its law and when he got there and said  were doing something that wasn't specifically prohibited by a zoning ordinance that your grandfathered under state law and that's not true because you were specifically prohibited you are prohibited by a general provision has nothing to do with adult entertainment that says if there's a use that you're trying to do that is not listed in the table is presented lee prohibited and so we argue that the observation about the you know so we're going to decide on twelve b six that what they were running was not a novelty shop which a list of well they would be if that was all they had in the record maybe there would be an argument about it but they didn't challenge to thirty dash one hundred in other words for their making argument you know what you mean they asked to amend their complain and they were denied opportunity to amend their book but but i guess what i'm saying about the sequence of events your honor and i totally understand your question george martin but let me be clear we made that argument in sept on september eighth two thousand and sixteen this is tab fifty nine dash one in the supplemental appendix i included the excerpt of our transcript where we argued to thirty dash one it wasn't until more than two months later on november ninth two thousand and sixteen that the plane has filed their amended complaint they could have challenged what we told them two continue violating the law for nine months but the point is that district court erred in dismissing the case and not allowing them to manned right and seems to be to be made to be calm pounding the abuse by saying well they didn't amend their complain early enough and therefore the state actually got a headache well that's a very understandable concern but here's the critical thing that we're missing and that is they weren't in state court they were on a back end of a state court civil prosecution for  injunction because they were unable to amend their complaint they were there because they were violating the law before they got judicial relief from the federal court and that is that if we're looking at which has proceeded farther which is one of the elements that we look at the only reason they weren't ahead of the state court action is because of the district court there isn't that right no your honor i disagree there would have never been a state court action but for their error in violating the law in two thousand and sixteen the court denied dismissal and then the thing into that in january two thousand and sixteen they were told not eight months later but here's here's the point there have been no proceedings of substance in the federal court on any of these ordinances because their goal has been to this court what's that have been to this court leave to amend in december two thousand and fifteen let's say that they had gone differently let's say the judge thrasher dismissed the claims against the old codes on mootness grounds or what have you and ignore the damages claim for second which we know is not supported by any allegations in the second in the complaint but let's say that he granted them leave to amend no difference in the outcome under duran versus a woman from the supreme court because they continued violating the law and they would have been cited and prosecuted like they were in august two thousand sixteen eight months later and they would have been subject to a younger c they're making an argument let's go back in time to when we first saw to amend our complaint and that would change the outcome of the younger but it wouldn't your honor because well i guess what i'm focusing on is you know  the rule is if you know if there if there has been significant federal litigation you know i mean the cases use the language if the federal aviation is only in an embryonic stage and the up i mean you'd been litigating in front of judge the ration federal court come up on appeal gone back and only after that was you know was the state action filed i mean significantly later on you say it's a different action but in their complaint they say you know we were grandfathered under and there were men to complain when they were finally allowed to amend this they say you know when we fall under the you know we have our grandfather down under the old well your honor two things there was no clue there was no proceedings of substance on the second set of ordinances in the trial court we know that for sure and you're saying there would have been had they been granted leave to i'm not saying i'm just well i'm asking you a question i well i think it's you know that the opportunity for me is to tell you what my concerns are and i totally understand your honor i think it's a dream versus salem and think about that case that was a case where there were people doing adult entertainment in bars in new york and then there was a new ordinance that was adopted they go to federal court so the federal lawsuit against the new ordinance was filed first first in time they file a motion for tomorrow it's denied instant turner and the court the same day sets a preliminary injunction for two weeks out so he's going to have a problem injunction it's coming at the hearings coming and the next day one of the three plaintiffs resumes topless dancing and he cited for it and there's a pending now there's  prosecution the u s supreme court said it was correct to grant a preliminary injunction two weeks later against the two but younger abstention fully applied to that business because instead of waiting for the development of their federal lawsuit in obtain federal judicial rel they went ahead and subjected themselves to a state prosecution by violating the ordinance if you want to invoke younger and stay in federal court or if you want to avoid younger and stay in federal court you have to either get judicial relief from the federal court or abstain from violating the law and that's black letter law from the supreme court so even if they they this second amended complaint was filed two months four months after the state action commenced which is the real date when did the state action commence and but even if it had been filed later because they were ask that the trial court's decision b in the initial complaint here in the second amid a complaint were specifically in paragraphs eighty eight eighty seven eighty eight saying in light of the two thousand and fifteen adoption of the word it says there is uncertainty disorders as apparently bakers applied we don't believe the initial ordinance applied to us i e there's a non conforming use right and play the counties takes the opposite position that is what we were seeking to clear to our belief that it's not moot that is a claim that was approved by this court it excuse me the complaint that was reviewed by the court and we were allowed to file the redress ability issue i just i just feel like as we wrote our brief i feel like we've got sandbagged you know federal rule civil procedure one  efficient fair i don't know the exact phrase we had we were travelling in the opposite direction my my coke or my brother and it's citing a transcript that they attached to a reply brief down below to show that two months within two days as was as the complaint that was reviewed by this court and by just ration that he told me to file it so we file it i think it's incorrect to attach  of uses and use the court has seen the table uses there are many many uses but guess what you can imagine everything under the sun and tell the district court that oh when a county has a strict policy a strict interpretation of that  and that is an absolute improper inference for the district court to take especially at a twenty six stage how about i get some discovery and i ask questions like whoa ok how is spencer's gift store operating they sell plenty of sexual devices you carved out an exception in the ordinance for spencer it will show this in discovery this is obviously not in the pleading but it says a regional shopping mall is not counted as a sex paraphernalia store one why not why do you need about forty acres in order to operate a sex paraphernalia store while going to county has three miles to have a spencer's give store are you is the county's taking the position that spencer gives store has been illegal from its inception because up until twenty fifteen there was no sexual paraphernalia position i would remind the court there's yes my client is very sophisticated they did they don't need me they read the ordinances and they do what they do in yes they're apprehensive that sometimes they have trouble getting a business license and they do make a decision after they obtain it or have trouble not getting it whether they're going to add adult erotic media to their mix that's there's nothing unlawful about that discordant fly fish versus cocoa beach recognized in that case the plaintiff didn't indicate that they would have new dancing when they played for the business license well guess what cocoa beach ordinance didn't require didn't consider new dancing to be  this court recognized that and said that plaintiff has a right to fill out the application truthfully no material misrepresentations that's precisely what my client did and here we are three years later so we would ask for an opportunity to