[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 12-11738

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D. C. Docket No. 2:12-cv-00039-UA-SPC

THE INDIGO ROOM, INC.,

RAIMOND AULEN,

DYLAN JONES,

Plaintiffs-Appellants,

versus

CITY OF FORT MYERS,

DOUGLAS BAKER,

FMPD Chief, in his individual capacity,

ALAN GAGNON,

FMPD Officer, Badge No. 299, in his 

individual capacity,

 Defendants-Appellees.

______________

Appeal from the United States District Court

for the Middle District of Florida

______________

 (March 1, 2013)

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Before DUBINA, Chief Judge, MARTIN and ALARCÓN,* Circuit Judges.

DUBINA, Chief Judge:

Plaintiffs/Appellants The Indigo Room, Inc. (“the Indigo Room”), Raimond 

Aulen, and Dylan Jones (collectively “Appellants”), appeal the district court’s 

denial of their motion for a preliminary injunction against Defendants/Appellees 

City of Fort Myers (“the City”), Fort Myers Police Chief Douglas Baker, and Fort 

Myers Police Officer Alan Gagnon (collectively “Appellees”). The district court 

found that Appellants failed to show a substantial likelihood of success on the 

merits as to any of their claims. After reviewing the record, reading the parties’ 

briefs, and having the benefit of oral argument, we affirm the district court’s order

denying preliminary injunctive relief. 

I.

The Indigo Room is a commercial establishment that serves alcoholic 

beverages. Periodically, the Indigo Room hosts political events and activities, such 

as functions supporting the “Occupy Fort Myers” movement. On November 17, 

2011, the Indigo Room hosted a petition drive requesting an ethics investigation of 

the Fort Myers mayor. During the petition drive, Jones, who was 19 years old at 

the time, entered the Indigo Room to sign the petition. After Jones exited the 

 

*

Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting 

by designation.

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Indigo Room, Gagnon issued Jones a citation for violating FORT MYERS, FLA.,

CODE § 6-83 (the “Ordinance”), which prohibits persons under the age of 21 from 

entering or remaining in certain alcoholic beverage establishments while alcohol is 

being served or sold to the public. The Ordinance exempts: (1) persons employed 

at the alcoholic beverage establishment; (2) persons accompanied by a parent; (3) 

persons in a bona fide restaurant;1 (4) persons in an establishment with an “SRX” 

or special restaurant license issued by the state; or (5) persons in an alcoholic 

beverage establishment during any time period in which the establishment is not 

serving or selling alcoholic beverages to the public. Id.

Appellants filed the instant 42 U.S.C. § 1983 action in the Middle District of 

Florida claiming that the Ordinance violates their rights under the First and 

Fourteenth Amendments. Appellants seek declaratory relief, injunctive relief, and 

compensatory damages. Less than one month after initiating suit, Appellants 

moved for a preliminary injunction. Although Appellants’ complaint lists ten 

causes of action, Appellants moved for a preliminary injunction with respect to

Counts One through Four only: Count One: violation of First Amendment—

licensing scheme lacking procedural safeguards (all Appellants v. the City); Count 

 

1 Among other requirements, a bona fide restaurant must derive at least 51 percent of its 

gross revenue from the sale of food and nonalcoholic beverages. FORT MYERS, FLA., CODE § 6-

81. The Indigo Room does not allege that it ever sought exemption under this exception or that 

it meets the various requirements. 

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Two: violation of First Amendment—overbreadth (all Appellants v. the City); 

Count Three: violation of the Fourteenth Amendment—vagueness (Jones v. the 

City); and Count Four: violation of the Fourteenth Amendment—vagueness (Aulen 

and the Indigo Room v. the City).2 Each count is a facial challenge. 

In support of their motion, Appellants argue (1) the Ordinance has a chilling 

effect on the exercise of political speech by the affected person and the 

establishment because the Ordinance purportedly offers no exception to permit 

persons under the age of 21 to enter a regulated establishment to engage in political 

activity; and (2) the Ordinance is unconstitutionally vague. The district court 

found Appellants’ contentions without merit and denied their preliminary 

injunction motion in full. 

In addressing Appellants’ First Amendment challenges, the district court 

reasoned that the Ordinance did “not restrict [Appellants’] right to engage in 

speech, association and assembly.” [R. 28 at 5.] Rather, the Ordinance simply 

made it so that underage persons cannot exercise their rights “in alcoholic beverage 

establishments, as defined by the [O]rdinance, while alcohol is being served” and 

that persons 21 years and older “cannot do so in association with persons under the 

age of 21 in alcoholic beverage establishments while alcohol is available.” [Id.] 

 

2 Baker and Gagnon are not implicated by Counts One through Four.

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Further, the district court found it significant that the Ordinance provided an

exception that would allow Appellants to proceed as they wished, when alcoholic 

beverages are not being served or sold to the public. [Id. (citing FORT MYERS,

FLA., CODE § 6-83(a)(5)).] With regard to Appellants’ Fourteenth Amendment 

vagueness challenges, the district court found that the Appellants had not shown 

that a person of common intelligence would have to guess as to the meaning of the 

terms of the Ordinance. 

II.

“We review the decision to deny a preliminary injunction for abuse of 

discretion.” Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 

(11th Cir. 2011) (internal quotation marks omitted). “In so doing, we review the 

findings of fact of the district court for clear error and legal conclusions de novo.” 

Id. (internal quotation marks omitted)

III.

To obtain a preliminary injunction, the movant must establish that: “(1) it 

has a substantial likelihood of success on the merits; (2) irreparable injury will be 

suffered unless the injunction issues; (3) the threatened injury to the movant 

outweighs whatever damage the proposed injunction may cause the opposing 

party; and (4) if issued, the injunction would not be adverse to the public interest.” 

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Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 

1177, 1198 (11th Cir. 2009) (internal quotation marks omitted). The district court 

did not abuse its discretion in denying Appellants’ motion because it properly 

concluded that Appellants failed to show a substantial likelihood of success on the 

merits of Counts One through Four of their complaint. See Bloedorn v. Grube, 631 

F.3d 1218, 1229 (11th Cir. 2011) (noting that where the movant is unable to show 

a substantial likelihood of success on the merits, the court need not consider the 

other preliminary injunction requirements). 

A. First Amendment 

Appellants are not likely to succeed on the merits of their claims predicated 

on violations of the First Amendment (Counts One and Two). Appellants claim 

that the Ordinance infringes upon their First Amendment rights to engage in 

political speech, association, and assembly. Specifically, Jones, who is under 21 

years old, argues that the Ordinance infringes upon his right to engage in political 

speech, association, and assembly in alcoholic beverage establishments. Similarly, 

Aulen, who is over 21 years old, contends that the Ordinance infringes upon his 

right to engage in political speech, association, and assembly, around individuals 

under the age of 21. Finally, the Indigo Room submits that the Ordinance infringes 

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upon its right to host individuals under 21 years old to engage in political speech, 

association, and assembly. 

Appellants’ respective claims are without merit, because as explained below, 

the Ordinance does not infringe upon their First Amendment rights. Count One is 

likely to fail because, to the extent that the Ordinance can be said to be a licensing 

scheme at all,3 it does not act as a prior restraint on speech—i.e., it does not require 

permission from the City to engage in constitutionally-protected expression. See 

United States v. Frandsen, 212 F.3d 1231, 1236–37 (11th Cir. 2000) (defining 

prior restraint as “the government’s denial of access to a forum for expression 

before the expression occurs”). Count Two is also likely to fail because the 

Ordinance does not reach constitutionally protected conduct. See Bama Tomato 

Co. v. U.S. Dep’t. of Agric., 112 F.3d 1542, 1546 (11th Cir. 1997) (“In a facial 

challenge to the overbreadth . . . of a law, a court’s first task is to determine 

whether the enactment reaches a substantial amount of constitutionally protected 

conduct” and “[i]f it does not, then the overbreadth challenge must fail” (quoting 

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 

S. Ct. 1186, 1191 (1982))).

 

3 The process set forth in § 6-83(e) is optional, and the Ordinance does not require an 

establishment to seek a determination of whether it is as a bona fide restaurant. See FORT 

MYERS, FLA., CODE § 6-83(e) (“No establishment is required to obtain a determination [that it 

qualifies as a bona fide restaurant.])”

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The text of the Ordinance does not regulate speech. Instead, the Ordinance 

regulates, inter alia, the admittance of underage individuals into alcoholic 

beverage establishments while alcohol is being served or sold to the public. Thus, 

if the Ordinance infringes on Appellants’ speech at all, it does so incidentally. 

When legislation incidentally infringes upon protected expression, the court 

applies the Supreme Court’s test set forth in United States v. O’Brien, 391 U.S. 

367, 377, 88 S. Ct. 1673, 1679 (1968). Wise Enters., Inc. v. Unified Gov’t of 

Athens-Clarke Cnty., 217 F.3d 1360, 1363 (11th Cir. 2000). If the Ordinance does 

not even incidentally infringe upon protected expression, however, the O’Brien test 

is inapplicable. See Gary v. City of Warner Robins, Ga., 311 F.3d 1334, 1340 

(11th Cir. 2002). Here, the district court correctly found that the Ordinance does 

not infringe upon Appellants’ First Amendment rights. 

In Gary, this court considered a challenge to a similar ordinance that 

prohibited persons under the age of 21 from entering or working at any 

establishment that sold alcohol on the premises, subject to various exceptions. Id.

at 1336. The underage plaintiff in Gary made several constitutional challenges to 

the ordinance, including that it infringed upon her First Amendment right to 

engage in the “expressive conduct” of nude dancing. Id. at 1340. In rejecting her 

First Amendment challenge to the ordinance, this court reasoned that “an 

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ordinance that restricts Gary’s right to enter establishments that primarily serve 

alcohol cannot be said to infringe upon her right to engage in nude dancing” 

because “Gary remain[ed] free to observe and engage in nude dancing, but she 

simply [could not] do so in . . . establishments that primarily derive their sales from 

alcoholic beverages consumed on the premises.” Id.

As the Gary court (and the district court) pointed out, nude dancing “falls

only within the outer ambit of the First Amendment’s protection,” id. (internal 

quotation marks omitted), while political speech enjoys a much higher level of 

protection. This differing level of constitutional protection is why Appellants 

argue Gary is not controlling. This distinction is of no moment, however, because 

the Ordinance does not infringe on Appellants’ speech in the first instance. In

other words, the court in Gary did not base its decision on the lesser protection 

afforded to nude dancing, but rather, on the determination that Gary’s right to 

engage in expressive conduct had not been infringed. Just as in Gary, here, 

Appellants’ First Amendment rights have not been infringed by the Ordinance—

irrespective of the level of protection afforded to Appellants’ political speech. 

B. Vagueness 

Appellants are also unlikely to succeed on the merits of their claims 

predicated on violations of the Fourteenth Amendment, namely that the Ordinance 

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is unconstitutionally vague (Counts Three and Four). “The Fourteenth 

Amendment prohibits States and their components from depriving any person of 

life, liberty, or property, without due process of law.” Bankshot Billiards, Inc. v. 

City of Ocala, Fla., 634 F.3d 1340, 1349 (11th Cir. 2011) (internal quotation marks 

omitted). Due process encompasses the concepts of notice and fair warning, and 

at its core is the principle “that no man shall be held criminally responsible for 

conduct which he could not reasonably understand to be proscribed.” Id.

(alterations and internal quotation marks omitted). Thus, “[v]agueness arises 

when a statute is so unclear as to what conduct is applicable that persons of 

common intelligence must necessarily guess at its meaning and differ as to its 

application.” Mason v. Fla. Bar, 208 F.3d 952, 958 (11th Cir. 2000); see also 

Roberts v. U.S. Jaycees, 468 U.S. 609, 629, 104 S. Ct. 3244, 3256 (1984) (“The 

void-for-vagueness doctrine reflects the principle that a statute which either forbids 

or requires the doing of an act in terms so vague that [persons] of common 

intelligence must necessarily guess at its meaning and differ as to its application, 

violates the first essential of due process of law.” (internal quotation marks 

omitted)). 

The court “review[s] statutes for vagueness concerns only when a litigant 

alleges a constitutional harm.” Bankshot Billiards, 634 F.3d at 1349. These harms 

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come in two forms. “In the first form, a person violates the vague law, is indicted, 

and then moves the trial court to dismiss the indictment . . . arguing that he did not 

receive notice that his conduct was proscribed.”4

 Id. The constitutional harm in 

this context is “the deprivation of liberty.” Id. at 1349–50. The second form is 

implicated when a litigant asks the court to review a vague statute before it is 

enforced. Id. at 1350. Such claims are reviewed because “the litigant is chilled 

from engaging in constitutionally protected activity.” Id. Thus, the second type of 

vagueness challenge “provides law-abiding citizens with a middle-road between 

facing prosecution and refraining from otherwise constitutional conduct.” Id. If 

one of the two constitutional harms delineated above is implicated, the court looks 

to whether the ordinance “forbids or requires the doing of an act in terms so vague 

that men of common intelligence must necessarily guess at its meaning and differ 

as to its application.” Ga. Pac. Corp. v. Occupational Safety & Health Review 

Comm’n, 25 F.3d 999, 1005 (11th Cir. 1994) (internal quotation marks omitted).

Appellants’ vagueness argument fails for multiple reasons. First, as 

discussed supra in the discussion of Appellants’ First Amendment challenge, the 

Ordinance does not chill constitutionally protected conduct. Thus, to the extent the 

Appellants are chilled from engaging in certain activities, e.g., entering or 

 

4 Although Jones was fined under the Ordinance, this is not an action to dismiss an 

indictment or reverse a conviction. 

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remaining in alcoholic beverage establishments or hosting individuals less than 21 

years of age in alcoholic beverage establishments, such activities are not sufficient 

to allege a constitutional harm. See Bankshot Billiards, 634 F.3d at 1350 (finding 

that where the movant “operates a pool hall and wants to admit patrons under 

twenty-one while also serving alcohol[, t]he pre-enforcement review paradigm 

hardly fits [because] even though Bankshot is ‘chilled’ from engaging in an 

activity in which it once engaged, that activity is not constitutionally protected[; 

r]ather, it is normal business activity”). Consequently, Appellants cannot maintain 

the second type of vagueness challenge discussed above.

Second, in examining the Ordinance’s text, it is apparent that it provides 

adequate notice of what conduct is prohibited, and a person of common 

intelligence would not need to guess at its meaning. Individuals under the age of 

21 are prohibited from entering alcoholic beverage establishments—a term defined 

by the Ordinance—subject to various exceptions which are likewise defined by the 

Ordinance. Appellants’ primary argument relates to a perceived difficulty in 

determining which establishments constitute a “bona fide restaurant.” That is, 

Appellants point out that persons under the age of 21 are allowed to enter a “bona 

fide restaurant” but are not allowed to enter an “alcoholic beverage establishment.” 

Thus, they argue it is possible that individuals under 21 may enter an establishment 

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“without having any clue whether they are in fact violating” the Ordinance because 

they are unsure whether the establishment is a bona fide restaurant or an alcoholic 

beverage establishment. [Appellants’ Br. at 38.] 

Absent from Appellants’ contentions, however, are challenges to the actual 

text of the Ordinance. “To state a void-for-vagueness claim, the language of the 

ordinance itself must be vague[.]” Diversified Numismatics, Inc. v. City of 

Orlando, Fla., 949 F.2d 382, 387 (11th Cir. 1991). The language of the Ordinance 

itself is perfectly clear and Appellants offer no tenable arguments to the contrary. 

Indeed, the Ordinance here is similar to the one challenged in Gary, as both 

differentiated between establishments that individuals under 21 years old could 

enter and those which they could not, based on, inter alia, the percentage of gross 

revenue derived from alcohol sales. This court in Gary found the movants’ 

vagueness and overbreadth arguments so devoid of merit it declined to address 

them. See Gary, 311 F.3d at 1335 n.1. 

Finally, Appellants present a facial challenge. “A facial challenge, as 

distinguished from an as-applied challenge, seeks to invalidate a statute or 

regulation itself.” Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th 

Cir. 2001) (internal quotation marks omitted). Generally, for a facial challenge to 

succeed in this context “the challenger must establish that no set of circumstances 

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exists under which the Act would be valid.” Id. (quoting United States v. Salerno, 

481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)). Consequently, “[f]acial 

vagueness occurs when a statute is utterly devoid of a standard of conduct so that it 

simply has no core and cannot be validly applied to any conduct.” High Ol’ Times, 

Inc. v. Busbee, 673 F.2d 1225, 1228 (11th Cir. 1982). Conversely, if persons of 

reasonable intelligence “can derive a core meaning from a statute, then the 

enactment may validly be applied to conduct within that meaning and the 

possibility of a valid application necessarily precludes facial invalidity.” Id. 

(internal quotation marks omitted). A core meaning can be derived from the 

Ordinance at issue—individuals under the age of 21 are not permitted in alcoholic 

beverage establishments in the City of Fort Myers—and for this reason the statute 

is not facially invalid. 

IV.

For the foregoing reasons, we conclude that the district court did not err in 

denying the Appellants’ motion for a preliminary injunction.

AFFIRMED. 

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