* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 For ease of reference, the Defendants-Appellees will be referred to simply as “the

City.”

REVISED January 11, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-51041

JSLG, INCORPORATED,

Plaintiff-Appellant

v.

CITY OF WACO; RANDY CHILDERS, Building Official

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:11-CV-131

Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

The Plaintiff-Appellant JSLG, Inc. (“JSLG”) brought suit against the

Defendants-Appellees, the City of Waco (“the City”) and Randy Childers,1

Building Official for the City, raising constitutional challenges to an ordinance

governing sexually oriented businesses. The district court granted summary

United States Court of Appeals

Fifth Circuit

F I L E D

December 26, 2012

Lyle W. Cayce

Clerk
No. 11-51041

2

judgment for the City and denied JSLG’s request for a preliminary injunction.

Finding no reversible error, we affirm the district court’s judgment.

I. FACTUAL AND PROCEDURAL HISTORY

JSLG was a Texas corporation, and it owned a nightclub called Sonny’s

BYOB (“Sonny’s”) that featured nude dancing in Waco, Texas. The City’s

ordinance allowed nude dancing only if a corporation held a sexually oriented

business (“SOB”) license. JSLG obtained this license in 2007, and the ordinance

requires the license to be renewed annually. John Skruck ran the nightclub;

however, the paperwork filed with the City lists his daughter Mary Skruck, who

resides outside of Texas, as the owner. 

In 2010,the Waco police received complaints stating that prostitution was

occurring at Sonny’s. The Waco police thereafter conducted several undercover

investigations at the nightclub. As a result, three of the dancers were arrested

for prostitution. After each arrest, the City sent a nuisance notification letter

to JSLG. Two of the dancers were convicted of the offense of prostitution. John

Skruck provided bail and legal fees for at least one of the dancers. 

Additionally,the City Fire Marshall (“Marshall”) conducted an inspection

of the nightclub. During this inspection, the Marshall discovered a room with

a door that locked from the inside. It was known as the “High Roller Room.”

The Marshall asked that the door be unlocked. The manager on duty that night

claimed he could not find the right key, making a fair amount of noise

attempting to open the door with various keys. After some delay, a dancer and

a male patron exited this room. The Marshall told the manager that the door

should not have a lock and that a camera should be installed in the room.

During a routine follow up inspection, the Marshall again found the High Roller

Room door locked. After gaining entry to the room, the Marshall observed a

nude dancer and a male patron, who was not wearing pants and whose genitals

were exposed. 
No. 11-51041

2 The violations were of the following sections: 

(1) A licensee gave false or misleading information in the material submitted

during the application or license renewal process; . . . (3) A licensee or an

employee has knowingly allowed prostitution on the premises; . . . (6) On two

or more occasions within a 12-month period, a person or persons committed an

offense, occurring in or on the licensed premises, of a crime listed in section

20-36(a)(8)a, for which a conviction has been obtained; and the person or

persons were employees of the sexually oriented business at the time the

offenses were committed; (7) A licensee or an employee has knowingly allowed

any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual

contact to occur in or on the licensed premises[.]

§ 20-40(b)(1), (3), (6),(7) ofWaco’s Code ofOrdinances (“Sexually Oriented Businesses”).

3 Subsequent to the filing of the instant appeal, the Secretary of State forfeited JSLG’s

corporate privileges based on JSLG’s failure to pay taxes. 

3

In December 2010, JSLG submitted its annual application for renewal of

its SOB license. On April 18, 2011, the City sent notice to JSLG that the license

was revoked upon receipt of the notice. The City cited four sections of the Code

of Ordinances as grounds for the one-year revocation.2 JSLG appealed to the city

council. After hearing from both sides, the council voted to uphold the

revocation.

Thereafter, JSLG filed suit in Texas state court and obtained a temporary

restraining order (“TRO”). The City removed the case to federal district court,

and JSLG moved again for a TRO and a preliminary injunction. The district

court denied the TRO and held a hearing on the motion for the preliminary

injunction. Thereafter, the City filed a motion for summary judgment. On

September 26, 2011, the district court denied JSLG’s motion for preliminary

injunction and granted the City’s motion for summary judgment. JSLG now

appeals.3

II. ANALYSIS

A. Standard of Review
No. 11-51041

4

JSLG argues thatthe district court erred in granting the City’s motion for

summary judgment. This Court reviews a district court’s ruling on summary

judgment de novo, applying the same standards as the district court. See, e.g.,

Hirras v. Nat’l R.R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary

judgment is proper if the record reflects “that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). 

B. Mootness

1. Injunctive Relief

The City contends thatthe appeal is moot and should be dismissed for lack

of appellate jurisdiction. The City points out that JSLG brought suit to enjoin

the revocation of its SOB license. However, the City has since revoked the

license, and the one-year revocation period has expired. On April 18, 2011, the

City sent a letter notifying JSLG that its SOB license would be revoked for one

year from the date of receipt of the letter. Additionally, the letter provided that

upon appeal the revocation shall be automatically stayed pending the city

council’s final decision. JSLG took an appeal, which stayed the revocation. The

City denied JSLG’s appeal. On May 12, in state court, JSLG obtained a TRO

against the City. On May 23, the City removed the case to federal district court.

On May 26, JSLG moved for a continuing TRO and preliminary injunction. On

May 27, the court held a hearing on the request for a TRO and denied it that

day. On June 3, the district court held a hearing on the motion for a preliminary

injunction. On September 26, the court denied JSLG’s motion for preliminary

injunction. Thus, the revocation began at the latest on May 27, 2011, and was

set to last for a period of one year. This Court heard oral argument on

September 5, 2012. Clearly, the one-year revocation period has expired. A

“request for injunctive relief generally becomes moot upon the happening of the

event sought to be enjoined.” Harris v. City of Houston, 151 F.3d 186, 189 (5th
No. 11-51041

5

Cir. 1998). “An appeal from a denial of a motion for preliminary injunction is

rendered moot when the act sought to be enjoined has occurred.” Seafarers

Intern. Union of N. Am. v. Nat’l Marine Servs., 820 F.2d 148, 151 (5th Cir. 1987),

abrogated on other grounds by Litton Fin. Printing Div. v. Nat’l Labor Relations

Bd., 501 U.S. 190, 198 (1991). This Court has explained that “once the action

that the plaintiff sought to have enjoined has occurred, the case is mooted

because no order of this court could affect the parties’ rights with respect to the

injunction we are called upon to review.” Id. (internal quotation marks and

citation omitted). Accordingly, because the one-year revocation period has

expired, the request to enjoin is moot.

Nonetheless, JSLG states thatthe revocation leaves an unfavorable mark

if it were to apply for an SOB license in the future. We note that, based on

JSLG’s failure to pay taxes, the Secretary of State forfeited JSLG’s corporate

privileges. JSLG is now a defunct corporation and cannot file a renewal

application for an SOB license unless it pays the taxes it owes. Meanwhile,

another corporation has since filed an application for an SOB license and now

operates the business at the same location. At the time of oral argument, JSLG

had not paid its back taxes to revive its corporate privileges so that it could file

another application for an SOB license. Moreover, since the argument the Court

has received no indication that JSLG has taken any steps to revive its privileges.

Accordingly, JSLG has failed to prove “continuing collateral consequences”

stemming from the expired revocation period that would constitute a “concrete

and continuing injury” under Article III. Spencer v. Kemna, 523 U.S. 1, 7-8

(1998) (internal quotation marks omitted). Indeed, it is “purely a matter of

speculation” whether JSLG will apply for an SOB license in the future. Id. at

16. Thus, because there is no injunctive relief we can grant JSLG, any claim for

injunctive relief is moot. We therefore DISMISS as MOOT JSLG’s claim for

injunctive relief.
No. 11-51041

4 United States v. O’Brien, 391 U.S. 367 (1968).

5 Cf. Chulchian v. City of Indianapolis, 633 F.2d 27, 32 (7th Cir. 1980) (rejecting a

constitutional challenge because the ordinance, as construed by the City and the Court,

“requires that a licensee knowingly permit illegal conduct,” and therefore. “the ordinance does

not penalize a licensee for an isolated incident over which he has no control”).

6

2. Declaratory Relief

a. § 20-40(b)(3), (6), and (7)

JSLG mounts a facial challenge againstthe City’s SOB ordinance, seeking

to have it declared unconstitutional. JSLG contends that the district court erred

in holding that the ordinance passes constitutional muster under O’Brien4

because three of the ordinance’s provisions allow revocation of a license based

solely on the knowledge of an employee without requiring knowledge on the part

ofthe licensee.5 The three provisions state that the building official shall revoke

an SOB license if it is determined that: 

(3) A licensee or an employee has knowingly allowed prostitution on

the premises; . . . (6) On two or more occasions within a 12-month

period, a person or persons committed an offense, occurring in or on

the licensed premises, of a crime listed in section 20-36(a)(8)a, for

which a conviction has been obtained; and the person or persons

were employees of the sexually oriented business at the time the

offenses were committed; or (7) A licensee or an employee has

knowingly allowed any act of sexual intercourse, sodomy, oral

copulation, masturbation or sexual contact to occur in or on the

licensed premises[.]

§ 20-40(b)(3), (6), (7).

However, prior to reaching the merits of the constitutional challenge, we

must first address the City’s contention that JSLG’s claim for declaratory relief

has become moot. As previously noted, the Secretary of State forfeited JSLG’s

corporate privileges based on JSLG’s failure to pay taxes, rendering JSLG a

defunct corporation, which cannot apply for an SOB license. Applying Supreme

Court precedent, we conclude that the claim for declaratory relief is also moot.
No. 11-51041

6 The Court also recognized that Erie had an “ongoing injury because it [was] barred

from enforcing the public nudity provisions of its ordinance.” Id. If the Court held that the

ordinance was constitutional, Erie could “enforce it, and the availability of such relief is

sufficient to prevent the case from being moot.” Id.

7

In City of Erie v. Pap’s A.M., the city council for the City of Erie (“Erie”)

enacted an ordinance making it a summary offense to appear nude in public.

529 U.S. 277, 283 (2000). Pap’s, a Pennsylvania corporation, operated a

business that featured nude dancing. Id. at 284. Pap’s filed suit, requesting

declaratory relief and an injunction against the enforcement of the ordinance.

Id. Subsequently, the Pennsylvania Supreme Court held that the ordinance

unconstitutionally burdened the expressive conduct of nude dancing. Id. at 286.

The Supreme Court granted Erie’s petition for certiorari, and Pap’s moved to

dismiss the case as moot because it was no longer operating a nude dancing

business. Id. at 287. Pap’s argued that the case was moot because the Court’s

ruling would have no effect upon Pap’s as it was no longer operating a nude

dancing establishment. Id. The Supreme Court explained that merely closing

the business was “not sufficient to render this case moot” because “Pap’s is still

incorporated under Pennsylvania law, and it could again decide to operate a

nude dancing establishment.” Id. Additionally, the Court opined that the case

was not an ordinary “voluntary cessation case” because it was the prevailing

party that voluntarily ceased its conduct and then sought to have the case

dismissed as moot. Id. at 288. Further, “Pap’s still has a concrete stake in the

outcome of this case because, to the extent Pap’s has an interest in resuming

operations, it has an interest in preserving the judgment.” Id.6 Finally, the

Court recognized that its “interest in preventing litigants from attempting to

manipulate the Court’s jurisdiction to insulate a favorable decision from review

further counsels against a finding of mootness.” Id. Thus, it rejected Pap’s

argument and held that the case was not moot.
No. 11-51041

8

Unlike the business in Erie, in the instant case, JSLG is no longer

incorporated under state law due to its failure to pay taxes. Further, here,

unlike Erie, it is not the party that closed the business now seeking to have the

case declared moot. 

In City News & Novelty, Inc. v. City of Waukesha, the Supreme Court once

again addressed the question of mootness when an adult bookstore closed its

business. 531 U.S. 278 (2001). In that case, City News & Novelty, Inc. (“City

News”) operated an adult bookstore that sold sexually explicit material. Id. at

281. The City of Waukesha (“Waukesha”) required sellers of such material to

maintain an adult business license. Id. Based on its finding that City News had

violated an ordinance, the city council denied City News’s application for a

renewal of the license. Id. at 281-82. City News brought suit, and the state

courts rejected the claim that the denial of the license was unconstitutional. Id.

at 282. After filing its petition for certiorari with the Supreme Court, City News

provided notice that it planned to withdraw its renewal application and close its

business if Waukesha granted a license to its competitor. Id. at 282-83.

Waukesha granted an adult business license to the competitor of City News, and

thereafter City News ceased its operations and “no longer [sought] to renew its

license.” Id. at 283. 

Based on City News’s announcement that it did not intend to renew its

license, Waukesha argued that the case was moot. Id. In response, City News

stated that “it ‘has never promised not to apply for a license’ in the future,” and

that the Supreme Court’s analysis in Erie demonstrated that this case was not

moot. Id. The Supreme Court rejected City News’s argument that the claim

was not moot and distinguished Erie as follows:

In our view, Erie differs critically from this case. In Erie, we

similarly granted a petition to review a state-court judgment

addressing an adult business’ First Amendment challenge to a city

ordinance. We concluded that the controversy persisted, even
No. 11-51041

9

though the adult business had shut down. We reached that

conclusion, it is true, in part because the business “could again

decide to operate.” That speculation standing alone, however, did

not shield the case from a mootness determination. Another factor

figured prominently. The nude dancing entrepreneur in Erie sought

“to have the case declared moot” after the business had “prevailed

below,” obtaining a judgment that invalidated Erie’s ordinance.

Had we accepted the entrepreneur’s plea, then consistent with our

practice when a case becomes moot on review from a state court, we

would have dismissed the petition, leaving intact the judgment

below. Thus, had we declared Erie moot, the defendant

municipality would have been saddled with an “ongoing injury,”i.e.,

the judgment striking its law. And the plaintiff arguably would have

prevailed in an “attemp[t] to manipulate the Court’s jurisdiction to

insulate a favorable decision from review.” 

Id. at 283-84 (internal citations and quotation marks omitted). Unlike the adult

business in Erie, City News “left the fray as a loser, not a winner.” Id. at 284.

Thus, dismissing the case as moot “does not keep Waukesha under the weight

of an adverse judgment, or deprive Waukesha of its victory in state court.” Id.

Further, dismissing the case as moot does not“reward an arguable manipulation

of our jurisdiction” because City News “opposes a declaration of mootness.” Id.

Nonetheless, City News argued that it was suffering an ongoing injury

because the ordinance barred it from operating as an adult business for several

more years. Id. The Supreme Court was not persuaded that City News had

shown an ongoing injury because “a live controversy is not maintained by

speculation that City News might be temporarily disabled from reentering a

business that City News has left and currently asserts no plan to reenter.” Id.

at 285. Thus, the Supreme Court dismissed the case as moot.

Relying on the above-quoted language from the Supreme Court’s opinion

in Waukesha, the D.C. Circuit interpreted the opinion as “strongly support[ing]

the principle that a case on appeal normally is rendered moot when the

appellant closes its business and, as a result, no longer has a cognizable interest
No. 11-51041

7 Clearly, the exception in Erie does not apply because the party who prevailed below,

the City, did not cause the case to become moot. Although the City revoked the SOB license,

it was JSLG that closed the business, rendering this claim moot.

10

in the outcome of the dispute.” Munsell v. Dep’t of Agric., 509 F.3d 572, 582

(D.C. Cir. 2007). The D.C. Circuit further opined that the exception in Erie

“applies only when the party who prevailed below attempts to ‘manipulate the

Court’s jurisdiction’ to avoid having its favorable judgment overturned on

appeal.” Id. (quoting Waukesha, 531 U.S. at 284). 

We find persuasive the D.C. Circuit’s interpretation of Erie and Waukesha

and apply the principle to the case at bar. Here, because JSLG closed its

business and became a defunct corporation unable to apply for an SOB license,

it no longer has a cognizable interest in declaring the City of Waco’s SOB

ordinance facially unconstitutional.7In other words, JSLG is not currently

subject to regulation under the SOB ordinance. Accordingly, JSLG’s claim—that

the ordinance is facially unconstitutional because § 20-40(b)(3), (6) and (7) allow

for revocation of a license based solely on the knowledge of an employee—has

become moot during the pendency of this appeal. We therefore lack appellate

jurisdiction and DISMISS this claim for declaratory relief as moot.

b. § 20-40)(b)(1)

JSLG next contends that § 20-40(b)(1) is unconstitutionally vague or

overbroad on its face because it does not define how information that is “false

or misleading” is material to the application process. As set forth in detail

above, JSLG is not currently subject to regulation under the challenged

ordinance and thus no longer has a cognizable interest in declaring the

ordinance facially unconstitutional. Thus, this claim for declaratory relief
No. 11-51041

8 We note that, even if the facial challenge to § 20-40(b)(1) had not become moot, JSLG

would not be entitled to relief. Section 20-40(b)(1) provides that an SOB license shall be

revoked if: “[a] licensee gave false or misleading information in the material submitted during

the application or license renewal process.” JSLG argues that whether information is

“misleading” cannot be objectively verified and thus the ordinance allows the city official to

subjectively apply the ordinance. This Court has previously held that an ordinance allowing

a city officialto revoke an SOB license ifthe licensee provided “false or misleading information”

does not give the official impermissibly broad discretion. FW/PBS, Inc. v. City of Dallas, 837

F.2d 1298, 1305-06 (5th Cir. 1988), reversed on other grounds, 493 U.S. 215 (1990). We

explained that the ordinance “relies on standards that are susceptible of objective

measurement and thus consistent with the first amendment.” Id. at 1306 (citation and

internal quotation marks omitted). Accordingly, even if this claim had not become moot, our

precedent would preclude JSLG’s claim that § 20-40(b)(1) is unconstitutionally vague or

overbroad on its face. 

9 JSLG requested to “recover from Defendants, jointly and severally, all of its actual

damages, additional damages, exemplary damages, pre-judgment and post-judgment interest

as allowed by law, attorney’s fees, costs of court, declaratory judgments, and such other and

further relief to which it may show itself justly entitled.”

11

likewise became moot. We therefore lack appellate jurisdiction and DISMISS

this claim for declaratory relief as MOOT.8

3. Damages

Nonetheless, in JSLG’s prayer for relief in the complaint, in addition to its

request for equitable relief, JSLG expressly (albeit briefly) requested damages.9

JSLG contends that it incurred damages as a result of the City’s

unconstitutional revocation of its SOB license. Although the revocation of the

license did not close the nightclub’s doors, its effect was to prohibit nude

dancing. Because of the revocation, the City required the dancers to wear “GStrings and pasties.” JSLG contends that the prohibition of nude dancing

caused its customers to stop patronizing its business, and thus the loss of its

revenue constitutes monetary damages. This Court has explained that although

time may have rendered moot an appellant’s request for injunctive relief, the

claim for actual monetary damages incurred as a result of an alleged

constitutional violation remains a live claim. Henschen v. City of Houston, Tex.,

959 F.2d 584, 587-88 (5th Cir. 1992); Opulent Life Church v. City of Holly, __
No. 11-51041

12

F.3d __, 2012 WL 4458234, at *4 (5th Cir. 2012) (explaining that “[a] plaintiff

seeking both injunctive relief and money damages can continue to pursue the

case, even after the request for an equitable remedy is rendered moot”) (quoting

Erwin Chemerinsky, Federal Jurisdiction § 2.5.2. (6th ed. 2012)). Thus,

although JSLG’s claim for equitable relief is now moot, we must address its

claims for damages. 

We note that the claim for the amount of damages is rather limited. At

oral argument, counsel explained that JSLG’s claim for damages is based on the

loss of revenue stemming from the reduction in the amount of clients patronizing

Sonny’s because the dancers had to wear G-strings and pasties and were not

allowed to dance completely nude after the license revocation. Accordingly, the

damages, if any, would only consist of the loss of revenue from the dancers not

being allowed to dance completely nude during the revocation period. 

C. JSLG’s Capacity to Bring Suit

Subsequent to oral argument before this Court, the panel requested

briefing with respect to whether JSLG, a defunct Texas corporation, had the

legal right to maintain this appeal. We have reviewed the briefing and are

persuaded that our precedent constrains us to hold that JSLG does have the

capacity to maintain this appeal. 

Itis undisputed that by failing to pay its taxes JSLG forfeited its corporate

privileges under Texas law. However, JSLG had filed the instant lawsuit prior

to forfeiting its privileges. This Court has explained that Texas law “bars

corporations from filing suit only after they have forfeited their right to do

business.” Tex. Clinical Labs, Inc. v. Leavitt, 535 F.3d 397, 403 (5th Cir. 2008)

(emphasis in opinion). In Leavitt, as in the instant case, the corporation filed

suit prior to forfeiting its corporate privileges. Id. at 404. Applying Texas law,

this Court held that because the corporation had capacity to bring suit at the

time the action began, the corporation “retained capacity and will continue to do
No. 11-51041

10 At least one intermediate Texas appellate court has expressly agreed with this

Court’s interpretation of Texas law in Leavitt. See Mossler v. Nouri, No. 03-08-00476-CV, 2010

WL 2133940, at *6 (Tex. App.—Austin, May 27, 2010, pet. denied) (unpublished).

11 The City relies on the following language: “If the corporate privileges of a

corporation are forfeited under this subchapter . . . the corporation shall be denied the right

to sue or defend in a court of this state . . . .” Tex. Tax Code Ann. § 171.252(1).

12 The City concedes that if JSLG retains the capacity to maintain this suit, it has the

right to be represented by counsel.

13

so until the suit’s conclusion.” Id.10 Relying on certain language in § 171.252 of

the Texas Tax Code,11 the City contends that JSLG does not have the capacity

to maintain this suit. In Leavitt, however, this Court expressly recognized that

particular language and rejected the claim thatit deprived the corporation ofthe

capacity to maintain its lawsuit. Id. at 403-04. Accordingly, applying the

holding in Leavitt, because JSLG had the capacity at the time it filed suit

against the City, it retains the capacity to maintain this appeal until it is

resolved.12

D. As-Applied Challenge to § 20-40(b)(1)

JSLG also raises an as-applied challenge to the City’s finding that JSLG

violated § 20-40(b)(1), which, as previously set forth, provides that a license

shall be revoked if a “licensee gave false or misleading information in the

material submitted during the application or license renewal process.” In its

letter of revocation, the City quoted from § 20-34(a), which provides that an

application for an SOB license:

must be accompanied by a sketch or diagram showing the

configuration of the premises, including a statement of the total

floor space occupied by the total business and the total floor space

occupied by the sexually oriented business portion of the business.

The sketch need not be professionally prepared, but it must show

the interior dimensions of the business to an accuracy of plus or

minus six inches. 
No. 11-51041

14

The revocation letter further provided that the “sketch or diagram resubmitted

by Sonny’s BYOB during the 2011 application renewal process is false and

misleading because it omits significant changes to the premises. . . . Some of

those changes include the addition of two private ‘High Roller’ rooms, a new DJ

booth, and the elimination of a storage room.” 

With respect to the application for renewal that is at issue, JSLG does not

deny that it failed to submit an updated diagram of the club reflecting the

changes to the interior configuration ofthe building. JSLG does not dispute that

the requirement to maintain an accurate diagram of the building is related to

the City’s legitimate interestin safety, fire and rescue concerns. Instead, JSLG’s

entire argument is that, although § 20-34(a) requires that an initial application

for the SOB license must have a diagram of the building, the Code does not

expressly require the submission of such a diagram during the annual renewal

process. Section 20-37(a) provides that an SOB license expires every year on

December 31st. It further provides that a “license may be renewed by

submission to the building official of an application on the form prescribed by

such official and payment of a nonrefundable renewal processing fee of $25.00

at least 30 days in advance of the expiration date.” § 20-37(a). It also provides

that a “renewal application shall be reviewed in accordance with the same

standards and requirements for an original license application, as set out in

section 20-36.” Id. Thus, although § 20-37(a) does not expressly require the

submission of an updated diagram, it does state that the renewal application will

be reviewed under the same requirements as an original license application

under § 20-36. Section 20-36(a)(3) provides that a license will not issue if an

“applicant has failed to provide information reasonably necessary for issuance

of the license or has falsely answered a question or request for information on

the application form.” Although it is not clear, it is arguably implicit that a

current diagram of the building that houses the SOB is necessary information
No. 11-51041

15

for renewal of the license in that a current diagram was necessary for the initial

issuance of the license. Put another way, by expressly stating that a renewal

application will be reviewed under the same standards and requirements as the

initial application, the renewal provision arguably could be read as

encompassing a requirement that the application for renewal should be

accompanied by a current diagram of the building. 

Moreover, even ifthe written renewal provision does notimplicitly require

a current diagram, as a matter of practice, the evidence shows that the parties

treated the renewal process as if there was such a requirement. In 2008, with

its renewal application, JSLG submitted an updated diagram, which displayed

how the building had been remodeled after a fire had occurred. Subsequently,

during the 2009 renewal application process, JSLG submitted a letter

representing thatthe building had not undergone any remodeling since the SOB

license had been last renewed. Under these circumstances, we reject JSLG’s

contention that the district court erred in ruling that the renewal process

required the submission of a current diagram ofthe building. More importantly,

JSLG has failed to show that the requirement was unconstitutionally applied to

it. Simply put, JSLG has not shown that the City’s revocation of JSLG’s SOB

license based on its failure to submit a current building diagram was

unconstitutional. 

At oral argument, JSLG conceded that if only one provision of the

ordinance survives as a constitutional basis for the revocation of its license, its

claim for damages is foreclosed. Because we conclude that JSLG has not shown

that § 20-40(b)(1) was unconstitutionally applied as a basis for its license

revocation, it is not entitled to damages, and we need not reach any remaining

constitutional challenge.
No. 11-51041

16

III. CONCLUSION

For the above reasons, we DISMISS for lack of appellate jurisdiction the

claims for injunctive and declaratory relief and AFFIRM the district court’s

judgment as to the claim for damages.

DISMISSED IN PART and AFFIRMED in part.