### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 05/27/99 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 98-2088 D. C. Docket No. 95-181-CIV-J-20A

LADY J. LINGERIE, INC., a Florida corporation; BUFORD B. BRELAND, et al., Plaintiffs-Appellants,

versus CITY OF JACKSONVILLE, a Florida municipal corporation, Defendant-Appellee.

________________________________________________________________2 _________________ No. 98-2207

_________________ D.C. Docket No. 95-1005-CIV-J-20A

MILTON R. HOWARD, EMRO CORPORATION, d.b.a. J. R.’s Lounge, Plaintiffs-Appellants,

versus CITY OF JACKSONVILLE, a Florida municipal corporation, Defendant-Appellee.

Appeals from the United States District Court for the Middle District of Florida

(May 27, 1999) Before DUBINA and BARKETT Circuit Judges, and JONES*, Senior Circuit Judge. DUBINA, Circuit Judge:

______________________ *Honorable Nathaniel R. Jones, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation.3 These consolidated cases require us to determine de novo the constitutionality of several provisions of a Jacksonville, Florida (the “City”) ordinance that subjects adult businesses to various licensing, health and safety, and zoning regulations. The plaintiffs/appellants are “lingerie shops” that showcase nude dancing. The City classifies them as “adult entertainment establishments.” Jacksonville, Fla. Adult Ent. & Serv. C ode § 150.103(c) (reprinted in appendix). The district court initially agreed with so me of the plaintiffs’ objections to the ordinance and preliminarily enjoined enforcement of the licensing and zoning provisions. In response, the City amended its ordinance. The district court then lifted its injunction and upheld most of th e provisions of the new ordinance. See Lady J. Lingerie, Inc. v. City of Jacksonville , 973 F.Supp. 1428 (M.D. Fla. 1997). The plaintiffs then perfected this appeal.
I. First we decide whether regulati ons requiring adult entertainment establishments to apply for zoning exceptions comply with the First Amendment. The City permits adult entertainment establishmen ts to operate as of right in only one area, the CCBD (Commercial/Central Business District) zone. They may also operate in the CCG-2 (Commercial Community/General-2) zone, but only if the zoning board grants them a zoning exception. See Jacksonville, Fla. Land Use Code §4 656.313(IV)(c)(7) (reprinted in a ppendix). In addition, the ordinance forbids adult businesses in either zone from locating w ithin specified distances of residences, schools, churches, bars or other adult businesses. See Jacksonville, Fla. Land Use Code § 656.1103(a) (reprinted in appendix). The main objection the plaintiffs have to the ordinance is that there are only two sites in the CCBD zone that comply with the distance requi rements. This means that practically all adult entertainment estab lishments must apply for a zoning exception to operate in the CCG-2 zone. The City concedes this, but argues that there are 93- plus available sites in the CCG-2 zone, and that we should include those sites in the calculation. The combined 95 sites, it maintains, are enough. We usually review zoning regulations in this area under the deferential “time, place, or manner” standards which the Supr eme Court delineated in City of Renton v. Playtime, Theatres, Inc. , 475 U.S. 41, 50-54 (1986); see also Int’l Eateries of America, Inc. v. Broward Co., Fla. , 941 F.2d 1157, 1161-65 (11th Cir. 1991). A zoning ordinance is valid if it is narrowl y tailored to serve a substantial government interest, and it allows for reasonable a lternative avenues of expression. See Int’l Eateries , 941 F.2d at 1161-65. Combating the harmful secondary effects of adult businesses, such as incr eased crime and neighborhood blight, is a substantial5 government interest. See City of Renton , 475 U.S. at 50-52; Barnes v. Glen Theatre,
Inc. , 501 U.S. 560, 583-84 (1991) (Souter, J., concurring in the judgment). Most zoning ordinances easily meet thes e standards, but this ordinance does not. Even if the ordinance is narrowly tailored to serve a substantial government interest, it only allows for reasonable altern ative avenues of expression if the 93-plus sites in the CCG-2 zone count. But to operate in the CCG-2 zone, an adult entertainment establishment must apply fo r an exception. This makes an exception the equivalent of a license. The City doe s have a separate li censing procedure for adult entertainment establishments (for wh ich, incidentally, a zoning exception is a prerequisite), but the indispensability of the zoning exception persuades us to treat it like a license as well. As a form of prior restraint, licensi ng schemes commonly contain two defects: discretion and the opportunity for delay. Anordinance that gives public officials the power to decide whether to permit expre ssive activity must contain precise and objective criteria on which they must make th eir decisions; an ordinance that gives too much discretion to public officials is invalid. See Shuttlesworth v. City of Birmingham , 394 U.S. 147 (1969). Licensing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an6 application by sitting on it indefinitely is also invalid. See Freedman v. Maryland , 380 U.S. 51 (1965). Jacksonville's zoning ex ceptions process contains both defects. A. Discretion Section 656.131 of the Jacksonville Land Us e Code specifies the procedures for obtaining a zoning exception. See Jacksonville, Fla. Land Use Code § 656.131 (reprinted in appendix). The procedures apply to applicants of all sorts — not just adult businesses. Subsection (c)(1) cont ains the criteria the zoning board must consider in deciding whether to grant exceptions. These are run-of-the-mill zoning considerations: compatibility with contiguous uses, environmental impact, effect of pedestrian traffic, and so on. But they are just a floor; subsection (c)(2) permits the board to impose more restrictiv e requirements on adult businesses. The district court held that subsecti on (c)(2) is unconstituti onal, and severed that provision from the rest of the ordinance. The City does not appeal that part of the judgment. Instead, the plaintiffs appeal the part of the judgment that upheld all of the (c)(1) criteria. The district court found that these factors (in the absence of subsection (c)(2)) sufficiently limit the board’s discretion. We disagree. The standard incantation of the Shuttlesworth principle is that statutes may not give public officials “unbridled” disc retion to deny permission to engage in constitutionally protected expression. E.g. , City of Lakewood v. Plain Dealer Publ’g7 Co. , 486 U.S. 750, 757 (1988) (citing Shuttlesworth , 394 U.S. at 151). This implies that some measure of discretion is acceptabl e, but the cases show that virtually any amount of discretion beyond the merely mini sterial is suspect. Standards must be precise and objective . See, e.g. , Shuttlesworth , 394 U.S. at 150-51 (“narrow, objective, and definite”); Church of Scie ntology Flag Serv. Org., Inc. v. City of Clearwater , 2 F.3d 1514, 1547-48 (11th Cir. 1993) (“definite and precise”); see also Heffron v. Int’l Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 649 (1981) (upholding “first-come, first-served” method of allocating booths at the state fair); Church of Scientology , 2 F.3d at 1548 (labeling city clerk’s duty to obtain information from applicants for solicitation licenses “purely ministerial”). Such is not the case with subsection (c)(1). None of the nine criteria is precise and objective. All of them — individua lly and collectively — empower the zoning board to covertly discriminate against a dult entertainment establishments under the guise of general “compatibility” or “environmental” considerations. Jacksonville, Fla. Land Use Code § 656.131(c)(1)(ii) & (iii). Even the seemingly-innocuous fire safety provision is too broad. It does not say “there mu st be x number of doors per square foot”; it says that buildings must be “sufficiently accessible to permit entry onto the property by fire, police, rescue and other services.” Id. § 656.131(c)(1)(viii) (emphasis added). This is neither precise nor objective.8 To be clear, the City may still use the (c )(1) criteria (and (c)(2), for that matter) for applicants who are not entitled to First Amendment protection. We only find troublesome the application of the otherwis e-valid zoning criteria to adult businesses like the plaintiffs’. B. Delay The opportunity for public officials to delay is another form of discretion. Recognizing this, the Supreme Court held in Freedmanthat a Maryland movie censorship law violated the First Ame ndment because it did not require prompt decisions. In a later case, FW/PBS, Inc. v. City of Dallas , 493 U.S. 215 (1990) (plurality opinion), a majority of the Cour t (the plurality pl us three concurring Justices) applied Freedmanto an adult business li censing scheme. See also id. at 238 (Brennan, J., concurring). Specifically, the C ourt agreed that ordinances must contain two procedural safeguards to ensure prompt decision-making: (1) licensing officials must be required to make prompt decisions ; and (2) prompt judicial review must be available to correct erroneous denials. See id. at 228-30; Redner v. Dean , 29 F.3d 1495, 1500 (11th Cir. 1994). The same safeguards are required here. First, the ordinance fails to put any real time limits on the zoning board. The board must hold a public hearing within 63 days after a business applies for an exception. See Jacksonville, Fla. Land Use C ode § 656.131(c)(4). But nothing9 requires a decisionwithin 63 days, or any other tim e period. The ordinance’s failure to require a deadline for decisi on renders it unconstitutional. See Redner , 29 F.3d at
1501. The City concedes that the ordinance does not give the zoning board a deadline for decision, but it points out that the or dinance permits an applicant to begin operating its business 45 days after applying. See Jacksonville, Fla. Land Use Code § 656.1109 (reprinted in appendi x). Once the board deni es an application, the applicant must shut down. See id. The City argues that this ensures that a delay in the decision-making process will not keep the plaintiffs from opening. The defendant county in Redner made a similar defense of its ordinance. But that ordinance said that an applicant “m ay be permitted” to open; it didn’t give applicants an absolute right to open. 29 F.3d at 1500-01. The Jacksonville ordinance, in contrast, says that an applicant “maybegin operating [his] facility” 45 days after applying. Jacksonville, Fla. Land Use Code § 656.1109. This leaves no discretion in the City’s hands to keep an adult busine ss closed before denying its request for an exception. Does it matter that an applicant may begin operating while the board is still considering its application? We think not . The ordinance only permits applicants to operate conditionally. Once th e board denies an application for an exception, the10 applicant must close its doors. A conditi onal exception is no exception at all. A business can scarcely afford to operate inlimbo, not knowing whether the City will shut it down the next day or not. Further, Freedman ’s requirement that the status quo be maintained while public officials are deciding does not eliminate the requirement that the decision itself must be prompt. (And anyway, the status quo here is no zoning exception.) As for the second procedural safeguard, we note that this ordinance does not specifically provide for prompt judicial re view of the zoning board’s decisions. This may not be fatal. We have never squarely held whether an explicit judicial review provision is essential. It may be enough that state law provides a general right to judicial review of administrative decisions. See Redner , 29 F.3d at 1501-02 & n.9 (discussing Cent. Florida Nuclear Freeze Campaign v. Walsh , 774 F.2d 1515 (11th Cir. 1985), and Miami Herald Publ ’g Co. v. Cityof Hallandale , 734 F.2d 666, 676 (11th Cir. 1984)). Still, the plaintiffs have not argued this issue on appeal, so we leave it undecided. To conclude, we want to emphasize that it is not difficult to draft an ordinance that addresses the harmful secondary eff ects of adult businesses without running afoul of the First Amendment. This ordina nce, however, is unconstitutional because it channels nearly all adult entertainment es tablishments through the exceptions process.11 That process in turn gives the zoning board discretion to delay a decision indefinitely or to covertly deny applications for cont ent-sensitive reasons. The plaintiffs may operate as of right in the CCBD and CCG-2 zones, as long as they comply with the distance limitations. We leave it to the district court on remand to decide whether they may also operate in other parts of the City.
II. Next, the plaintiffs challenge two cont ent-neutral provisions: first, an hours of operation rule that requires a dult entertainment establishments to close from 2:00 a.m. until noon every day, and second, a rule requiring that rooms in adult entertainment establishments be at least 1000 square feet in area. These rules are content-neutral because the City enacted them not to suppr ess the expressive c ontent of nude dancing, but to alleviate the harmfu l secondary effects with which adult businesses are commonly associated. First we must choose which test applies to these regulations. There are two possibilities. The first is the “time, place, or manner” test the Supreme Court used to evaluate the zoning regulations in City of Renton . The Court initially developed this test to review restrictions on expression taking place in public fora, but in City of
Renton , it used this test to evaluate th e validity of zoning regulations. See Barnes , 501 U.S. at 566 (plurality opinion) (citing Ward v. Rock Against Racism , 491 U.S. 781,12 791 (1989), and City of Renton , 475 U.S. 41). City of Rentonsays that a “time, place, or manner” regulation must be narrowly tailored to serve a substantial government interest, and it must allow for reasonable alternative avenues of expression. See 475 U.S. at 50-54; Int’l Eateries , 941 F.2d at 1161-65. The alternative is the four-part test the Court laid out in United States v. O’Brien , 391 U.S. 367 (1968). This test has beenused to evaluate regulations of expressive conduct — conduct that contains both “sp eech” and “nonspeech” elements. Id. at 376. In Barnes v. Glen Theatre, Inc. , 501 U.S. 560 (plurality opinion), both the plurality and Justice Souter, see id. at 581 (Souter, J., concurring in the judgment), used this test to resolve a challenge by nude dancing establishments to a state law that banned public nudity. The testpermits government regula tion of expressive conduct “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” O’Brien , 391 U.S. at 377. The Supreme Court has observed that th e expressive conduct test of O’Brien and Barnes and the “time, place, or manne r” test of City of Renton“embody much the same standards.” Barnes , 501 U.S. at 566 (plurality opinion) (discussing Clark v.13 Community for Creative Non-Violence , 468 U.S. 288, 298 & n.8 (1984)). Still, which test we choose at least determines how we approach these questions, even if it doesn’t affect the outcome. And for that matte r, our choice of which test to use may occasionally be outcome de terminative. In Ward , for instance, a “time, place, or manner” case, the Court said that the m eans chosen are narrowly tailored as long as they are “not substantially broader th an necessary to achieve the government’s interest.” 491 U.S. at 800. Contrast this with O’Brien , in which the Court said that regulation of expressive c onduct may be “no greater than is essential to the furtherance of [the government’s] interest.” 391 U.S. at 377. The Court is surely right to suggest that these tests are generally the same. See Clark , 468 U.S. at 298 (O’Brien ’s four-part test, “in the last analysis, is little, if any, different from the standard applied to time, pl ace, or manner restrictions”). But in the occasional case, there may be a difference between “not subs tantially broader” and “no greater than is essential.” We need not decide whethe r this is that occasional case. We decide only one case at a time, and in th is case, City of Rentonguides our inquiry. The City of Renton test is appropriate because the rules we consider today — the hours of operation and 1000 square foot provisions — regulate “time” and “place” in the “time, place, or manner” sense. They affect, but do not di rectly regulate, the expressive conduct that14 is the basis of the plaintiffs’ First Ame ndment challenges: nude dancing. This is different from the draft card burning statute in O’Brien and the indecency law in
Barnes . Those laws regulated the how of expressive conduct, as opposed to the where or the when, and they did so in a way that made the me ssages less potent. The hours of operation and 1000 square foot rules are different. City of Rentonrequires that these rules be narrowly tailored to serve a substantial government interest, and that th ey allow for reasonable alternative avenues of expression. See 475 U.S. at 50-54; Int’l Eateries , 941 F.2d at 1161-65. A rule is narrowly tailored as long as it is “not subs tantially broader thannecessary to achieve the government’s interest.” Ward , 491 U.S. at 800. Whether the hours of operation rule is valid is a close question. See Jacksonville, Fla. Adult Ent. & Serv. C ode § 150.422(a) (repr inted in appendix). When we asked counsel for the City at oral argument why the City requires adult entertainment establishments to close fro m 10:00 a.m. until noon (the plaintiffs limit their argument to these hours), he could not come up with a reason. Nor can we. The question is whether we need a reason. The plaintiffs concede that ample evid ence exists to justify requiring them to close during the late evening hours, so the hours of operation rule as a whole indisputably serves a substantial governmentinterest. But the plaintiffs would have15 us look at the City’s reasons for this ru le on an hour by hour basis. There is no evidence, they submit, of a substantial gove rnment interest to justify requiring adult businesses to close from 10:00 a.m. until noon. This is a clever argument, but it confuses the requirement that a regulation serve a substantial government interest with the requirement that it be narrowly tailored to that end. We look at the provision as a whole to decide whether it serves a substantial government interest. Since it does, we ask whether it is narrowly tailored. We can imagine an hours of operation rule drawn so broadly as to not be narrowly tailored, but we decline to scrutin ize the City’s reasons for this rule as closely as the plaintiffs would have us do. If we were to side withthe plaintiffs here, the next litigants would argue whether evidence of secondary effects at 6:15 in the morning justifies requiring adu lt businesses to close at 9:30, or whether evidence from 9:30 justifies requiring them to close at 10:45. That sort of line-drawing is inconsistent with a narrow tailoring require ment that only prohibits regulations that are “substantially broader than necessary.” Ward , 491 U.S. at 800; but cf. O’Brien , 391 U.S. at 377 (regulation may be no greater than is essential to the government interest). The issue we f ace today is, of course, a clos er question, but we conclude that the hours of operation rule is “not subs tantially broader than necessary.” It is therefore narrowly tailored. Since the rule also leaves open reasonable alternative16 avenues of expression — adu lt businesses may stay open f ourteen hours a day, seven days a week — it is valid. We also conclude that the 1000 s quare foot rule is valid. See Jacksonville, Fla. Adult Ent. & Serv. Code § 150.301(g) & (h) (reprinted in appendix). Ample evidence, from Jacksonville and elsewhere, supports th e district court’s finding that illegal and unhealthy activities take place insmall rooms at adult entertainment establishments. One thousand square feet is not that large, so we can’t say that this rule is substantially broader than necessary. Still, the plaintiffs argue that the 1000 square foot rule will force them to move. At least two of the plaintiffs can’t comply in their pres ent locations. One plaintiff’s total floorspace is only 850 s quare feet, and another can’t remodel because of structural constraints. As we see it, though, this doesn’t matter. The test is whether the regulation leaves open reasonable alternative avenues of expression; it does not guarantee that the plaintiffs will be able to operate in their present locations. Without the zoning ordinance confining them, there are plenty of places the plaintiffs can move to comply with this ru le. The plaintiffs’ ow n expert testified that at least 40% of the available sites inJacksonville are large enough to accommodate 1000 square foot rooms. There is no evidence to indicate that this figure is not also representative of the CCG-2 zone. Forty percent of 93-plus sites is enough.17 III. The plaintiffs next challenge the validity of a provision that makes an applicant ineligible for an adult entertainment li cense if the Sheriff has recently revoked a license for the same premises. See Jacksonville, Fla. Adult Ent. & Serv. Code § 150.214 (reprinted in appendix). A site is ineligible un til the second October 1 after the Sheriff revokes the license. Id. This site disability provision applies even to an applicant with a clean record who happens to buy or lease an aff ected site for use as an adult entertainment establishment. We conclude that none of the plaintiffs has standing to cha llenge this provision because none is injured. Not only has none of the plaintiffs applied for a license for an affected site, but there is no eviden ce that there are any affected sites in Jacksonville. If there were, the plaintiffs could at least say th at the site disability provision limits their choice of where to move . But without evidence of affected sites, the plaintiffs can’t even say th at. So we dismiss this claim.
IV. We now turn our attention to a provision that requires corporate applicants for adult business licenses to disclose the names of “principal stockholders.” Jacksonville, Fla. Adult Ent. & Serv . Code § 150.205(a)(1)(iii) (reprinted in appendix). A “principal stockholder” is one who owns at least 10% of the stock of a18 corporation. Id. § 150.103(k) (reprinted in appendi x). If no stockholder owns more than 10%, then all stockholders ar e “principal stockholders.” Id. The plaintiffs argue that this unconstitutionally chills their right to free expression. The City responds that the plaintiffs do not have standing to challenge this provision, but that even if they do, the disclosure provision is valid. We are satisfied that at least one of th e plaintiffs has standing to challenge this rule. The ordinance requires corporations to disclose principal stockholders’ names, and Lady J. Lingerie is a corporation. Compelled disclosure of the sort the J acksonville ordinance entails threatens to stymie the exercise of First Amendment freedoms — the so-called “chilling effect” — so it must survive “exacting scrutiny.” Buckley v. Valeo , 424 U.S. 1, 64 (1976) (per curiam). Specifically, there must be a “relevant correlation” or a “substantial relation” between requiring disclosure of principal stockhol ders’ names and a substantial government interest. Id. (citations omitted); see also NAACP v. Alabama , 357 U.S. 449, 363-64 (1958) (government interest must be substantial). Here the government interest is substantial, but we do not see a “relevant correlation” or a “substantial relation” be tween the names of principal stockholders and the harmful secondary eff ects of adult entertainment establishments. The City’s best argument is that principal stockholders tend to have a discernable influence on19 management, and that the City needs to keep an eye on who is running adult businesses in town. But stockholders, quastockholders, do not run corporations; officers and directors do. The City can enforce its rules through them. See Acorn Inv., Inc. v. City of Seattle , 887 F.2d 219, 226 (9th Cir. 1989); cf. East Brooks Books, Inc. v. City of Memphis , 48 F.3d 220, 226 (6th Cir. 1995) (invalidating an ordinance requiring disclosure of all stockholders ’ names); Genusa v. City of Peoria , 619 F.2d 1203, 1216-17 (7th Cir. 1980) (invalidating an ordinance requiring all stockholders owning more than 10% of the stock of anapplicant to submit various personal data to licensing officials). Accordingly, we conclude that this provision is unconstitutional.
V. The final provision the plai ntiffs challenge makes owne rs of adult entertainment establishments criminally liable for act s committed by their servants, agents and employees. See Jacksonville, Fla. A dult Ent. & Serv. Code § 150.510 (reprinted in appendix). Not all acts are imputable, only those acts done within a servant, agent or employee’s scope of author ity under the owner. See id. § 150.510(b). For their first five convictions, owners are punished by either a fine or 10 days in jail; for the sixth and subsequent offenses, th e penalty is a fine andup to 90 days in jail. See id. § 150.510(c).20 Respondeat superior is now a familiar concept in the context of “public welfare” crimes. These offens es are not crimes in the tr aditional sense; instead, they are a means of regulating activities that pos e a special risk to the public health or safety. In United States v. Park , 421 U.S. 658 (1975), for example, the defendant was the president of a national retail food corpor ation that got into trouble with the Food and Drug Administration for having rodent -infested warehouses. The Court upheld his conviction because, as president, he was in a “responsible relation” to the unlawful failure to maintain sanitary warehouses. Id. at 673-76; see also United States v. Dotterweich , 320 U.S. 277, 285 (1943). But significantly, Park’s only punishment was a fine; incarceration is a different matter. Commentators distinguish public we lfare offenses from offenses for which the penalty involves imprisonment, and argue that respondeat superior is inappropriate for these “true crimes.” Francis Bowes Sayre, Criminal Responsibility for the Acts of Another , 43 Harv. L. Rev. 689, 717 (1930); see also Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law255 (2d ed. 1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law , 913-14 (3d ed. 1982). We agree and hold that due process prohibits the state from imprisoning a person without proof of some form of personal blameworthiness more than a “responsible relation.”21 The upshot is this: criminal liability based on respondeat superior is acceptable if the defendant is in a “responsible rela tion” to the unlawful conduct or omission, but only if the penalty does not involve impris onment. A defendant is in a “responsible relation” if he has the power to pr event violations from occurring. See Park , 421 U.S. at 670-73. The owner liability provision makes imprisonment a possibility — indeed it is a certainty for the sixth and subsequent offenses. It is therefore unconstitutional at least to that extent. We can salvage the fine, however, if the ordinance requires proof of a “responsible relation.” Proof of a defe ndant’s position alone is not enough, see id. at 658, but this provision requires more. Only acts “done within the scope of [a] servant, agent or employee’s scope of authority unde r the owner” are imputable. Jacksonville, Fla. Adult Ent. & Serv. Code § 150.510(b) . We understand this to mean that an owner-defendant is only responsible for act s or omissions that he has the power to prevent. For this reason, we leave intact the City’s authority to fine owners for violations committed by their employees. Personal blameworthiness can take two fo rms: unlawful act and unlawful intent. It is common to convict and imprison defe ndants for the acts of others — witness conspiracy law. But conspiracy still require s individualized proof of unlawful intent. The converse is strict liability , which requires proof of act but not intent. We decline22 to consider whether mens rea is an indispensable constitutional requirement for sending someone to prison. Cf. Staples v. United States , 511 U.S. 600, 616 (1994) (penalty of imprisonment suggests that statute should not be construed as dispensing with mens rea ). Instead, we hold that due process at least requires individualized proof of intent or act. The owner liability provision requires neither, so the City may not use it to incarcerate owners.
VI. The last issue the plaintiffs raise con cerns their entitlement to damages for 10 days they were closed after the City implemented the initial licensing and zoning provisions which the district court struck dow n. This claim is meritless. The district court correctly held that the plaintiffs are not entitled to damages. For the foregoing reasons, we affirm the district court’s judgment in part, reverse in part, dismiss in part, and remand this case for further proceedings consistent with this opinion. AFFIRMED in part, REVERSED inpart, DISMISSED in part, and
REMANDED.23 APPENDIX Jacksonville, Fla. Code, Title VI, Cha pter 150 (Adult Entertainment and Services Code — Businesses, Trades and Occupations)
150.103 Definitions. In this chapter, unless th e context otherwise requires:
* * * (c) Adult entertainment establishment means a commercial establishment where the owner, or an employee or agen t of the owner, suffers, permits, allows, encourages, or pays any pe rson to engage in nude entertainment on the premises. Adult entertainment establishment also in cludes any establishment which contains or operates an adult entertainment booth.
* * * (k) Principal stockholder means an individual, partnership or corporation that owns or controls, legally or beneficially, ten percent or mo re of a corporation's capital stock and includes the officers, directors a nd principal stockholders of a corporation that is a principal stockholder under this ch apter; provided, that if no stockholder of a corporation owns or controls, legally or beneficially, at least ten percent of the capital stock, all stockholders shall be considered princi pal stockholders; and further provided, that if a corporation is regi stered with the Securities and Exchange Commission or pursuant to Chapter 517, Florida Statutes and its stock is for sale to the general public, it shall not be consider ed to have any principal stockholders.
* * * 150.205 License application; application fee. (a) A person desiring to engage in the business of operating an adult bookstore, adult motion picture theater, adult entertainment establishment, or escort service shall file with the Sheriff a sworn application on forms supplied by the Sheriff. The application shall contain at least th e following information and be accompanied by the following documents: (1) If the applicant is:24 (i) An individual, his name. (ii) A partnership, the full name of the partnership and the name of the managing partner and the names of all other partners, whether general or limited, accompanied by the partnership instrument or a certified copy thereof. (iii) A corporation, the exact corporate name and state of incorporation and the name of the chief ex ecutive officer and the names of all other officers, directors and principal stockholders, accompanied by the articles of incorporation and all amendm ents thereto and the certificate of incorporation, or certified copies thereof.
* * * 150.214 Issuance of license for prior revoked license. When a license is revoked by the Sheriff, no license shall be issued for the location formerly covered by the revoked li cense. The period of time that a license shall be prohibited under this section sha ll be one year from the October 1 following revocation. 150.301 General requirements. In addition to the special requirements c ontained in this part, unless otherwise exempted, each adult bookstore, adult motion picture theater and adult entertainment establishment, shall meet each of the requirements of this section.
* * * (g) All premises shall have an entrance room or lobby, i.e., the room which is entered from the outside, and sanitary fac ilities as set forth in subsection (e). The entrance room or lobby may be as large or as small as the licensee chooses. (h) All other rooms in premises must either: (1) be not less than one thousand square feet in area; or (2) be clearly marked in letters not less than two inches in height "No Customers or Patrons Allowed."
* * *25 150.422 Hours of operation. (a) Adult entertainment facilities, adu lt bookstores and adult movie theaters shall not be open between the hours of 2:00 a.m. and noon.
* * * 150.510 Owner responsibility. (a) As used in part, owner shall mean and include the owner, and co-owner, partner, managing partner or chief executive officer. (b) All acts of any servant, agent or em ployee, paid or unpaid, of an owner shall be imputed to the owner and be deemed to be an act of the owner if done within the scope of such servant, agent or employee's scope of authority under the owner. (c) Any owner convicted of violating this chapter due to responsibility imposed pursuant to this section shall be upon conviction punished as follows: (1) for the first five offenses, by a fine of not less than two hundred fifty dollars nor more than five hundred do llars, or by imprisonment up to ten days in jail; (2) for the sixth and subsequent o ffenses, by a fine of not less than three hundred fifty dollars nor more thanfive hundred dollars and by imprisonment of not less than twenty nor more than ninety days. Jacksonville, Fla. Code, Section 656 (Zoning Code — Land Use) 656.131 Zoning exceptions * * * (c) With respect to acting upon applications for zoning exceptions: (1) The Commission shall issue an order to grant the exception only if it finds from a preponderance of the evid ence of record presen ted that the proposed use meets, to the extent applicable , the following standards and criteria: (i) Will be consistent with th e Comprehensive Plan, including any subsequent plan adopted by the Council pursuant thereto; (ii) Will be compatible with the existing contiguous uses or zoning and compatible with the general ch aracter of the area, considering population26 density, design, scale and orie ntation of structures to th e area, property values, and existing similar uses or zoning; (iii) Will not have an environmental impact inconsistent with the health, safety and welfare of the community; (iv) Will not have a detrimental e ffect on vehicular or pedestrian traffic, or parking conditions, and will not result in the gene ration or creation of traffic inconsistent with the health, safe ty and welfare of the community; (v) Will not have a detrimental effect on the future development of contiguous properties or the general area, according to the Comprehensive Plan, including any subsequent amendment to the plan adopted by the Council; (vi) Will not result in the creati on of objectionable or excessive noise, lights, vibrations, fumes, odors, dus t or physical activities, taking into account existing uses or zoning in the vicinity; (vii) Will not overburden existing public services and facilities; (viii) Will be sufficiently accessible to permit entry onto the property by fire, police, resc ue and other services; and (ix) Will be consistent with the definition of a zoning exception, and will meet the standards and criteria of the zoning classification in which such use is proposed to be located, and all other requi rements for such particular use set forth elsewhere in the Zoning Code, or otherwise adopted by the Planning Commission. (2) In issuing its order to grant a zoning exception as provided in the Zoning Code, the Commission may place more restrictive requirements and conditions on applicants than are provided in the Zoning Code. A recommended order to grant a zoning exception shall not be granted unless and until the procedures in this chapter have been complied with. (3) The use for which a zoning exception has been granted by the Commission shall not be commenced by the ow ner, his agent or lessee until such time as the order is deemed to be final or a final order has been issued and all of the improvements stipulated in the grant of ex ception necessary for the orderly use of the property have been accomplished. (4) Unless a longer time is mutuallyagreed upon by the applicant and the Commission in the particular case, a public hearing shall be held by the Commission to consider an application for zoning exception withing not more than sixty-three days from the date of filing of the completed application. Notice of the public hearing shall be made as provided in s. 656.136 and a party shall be heard in person or by agent or attorney.27 (5) The violation of the terms of an exception, including conditions and safeguards which may be a part thereof, shall be deemed a violation of the Zoning Code and punishable as pr ovided in the Zoning Code. 656.313 Community/General Commercial Category. IV. Commercial Community/General-2 (CCG-2) District

. * * * (c) Permissible uses by exception

. * * * (7) Adult entertainment and service activities.
* * *
656.1101 Definitions. For the purposes of Part 11, the following definitions shall apply: (a) Adult entertainment or service facilitymeans an escort service, adult bookstore, nude massage parlor, adult motion picture theater or adult entertainment establishment, as defined in Chapter 150, Ordinance Code.
* * * 656.1103 Distance limitations; exception. (a) No adult entertainment or service f acility shall be located on a site unless the site equals or exceeds all of the di stance limitations required by this subsection; (1) One thousand feet from th e boundary of another adult entertainment or services facility. (2) Five hundred feet from the boundary of a residential district. (3) One thousand feet from an established school or church. (4) Five hundred feet from the boundary of any business which has an on premises consumption beverage license.28 (b) Notwithstanding any ordinance to the contrary, and notwithstanding any prior legal status of any adult entertainmen t or services facility, as of March 1, 1995, no adult entertainment or service facility sha ll be located on a site or parcel or in a structure which, in whole or in part, ha s been granted an on premises consumption beverage license or which is a bottle club. (c) Notwithstanding any ordinance to the contrary, and notwithstanding any prior legal status of any adult entertainmen t or services facility , as of March 1, 1995, no adult entertainment or services facility shall be located on a site or parcel or in a structure which, in whole or in part, is w ithin five hundred feet of the boundary of any business which has an on-premises consumption beverage license. 656.1109 Conditional commencement without exception Where a person has applied for an excep tion in order to operate an adult entertainment [establishment] in a Commun ity/Commercial Genera l-2 zoning district, the applicant may begin operating the facility forty-five days after submitting a completed application. The conditional operation shall be pe rmitted only until such time as the exception is grante d or denied and judicial re view is completed by a trial court of competent jurisdiction. This cond itional grant to operate shall not permit the applicant to operate in violation of any other ordinance or law. In particular the applicant shall not operate in violation of any distance requirement set forth in this chapter.1 I would also note that the Rentontest, not the analysis set forth in United States v. O’Brien , 391 U.S. 367 (1968) and applied by a plurality in Barnes v. Glen Theatres, Inc. , 501 U.S. 560 (1991), is the applicable standard. Unlike the ordinance at issue in Rentonand the one before us in this case, Barnes dealt with a generally-applicable ban on public nudity, considering whether the ban on public nudity could be constitutionally applied to nude dancing in an adult entertainment establishment. Because we are considering a regulation that singles out adult entertainment establishments for regulation, rather than a generally-applicable statute that has an incidental effect on adult entertainment, Renton , not Barnes , provides the appropriate standard of review. We have previously recognized this distinction between Rentonand Barnes . In International Eateries, Inc. v. Broward County, Fla. , 941 F.2d 1157 (11th Cir. 1991), we upheld a county ordinance prohibiting adult nightclubs within 500 feet of a residential district and within 1,000 feet of a church. We pointed out that Rentonand the case we were considering involved ordinances that only applied to adult entertainment, while Barnes involved a ban on all public nudity. Accordingly, we concluded that, even after Barnes , “Rentonstill controls our analysis.” Id. at 1161. 29 BARKETT, Circuit Judge, concurring in part and dissenting in part: I agree with much of the majority’s opinion in this case. However, I do not believe that Jacksonville’s hours of operation provision can be upheld under the “time, place, and manner” analysis set forth in City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41 (1986). 1 I agree that the hours of operation provision is a content-neutral restriction and that it serves the substantial governmental interest of eliminating the secondary effects produced by the late-night operations of adult entertainment establishments. Under Renton , however, this provision violates the First Amendment because it is not narrowly tailored to serve this substantial government interest. The ordinance requires the closure of adult entertainment establishments during early morning hours when the city concedes there are no secondary effects. Renton ’s narrow tailoring requirement, however, requires a city to draw its ordinances “to affect only that category of theaters shown to produce the unwanted secondary effects . . . .” Renton , 475 U.S. at 52. By analogy, it seems to me that to justify2 Although the city could certainly mandate closure if it showed secondary effects during these late morning hours, it does not even purport to make such a showing and so this ordinance is distinguishable from the other ordinances which have been upheld against First Amendment challenges. See Ben Rich Trading, Inc v. City of Vineland , 126 F.3d 155, 160-63 (3d Cir. 1997) (upholding ban on operating adult entertainment establishments before 8:00 A.M. and after 10 P.M.); Mitchell v. Commission on Adult Entertainment Establishments of Delaware , 10 F.3d 123, 131-39 (3d Cir. 1993) (upholding ban on operating adult entertainment establishments before 10:00 A.M. and after 10:00 P.M. and all day Sunday); Star Satellite, Inc. v. City of Biloxi , 779 F.2d 1074, 1079-80 (5th Cir. 1986) (upholding ban on operating adult entertainment establishments before 10:00 A.M. and after midnight and all day Sunday); see also National Amusements, Inc v. Town of Dedham , 43 F.3d 731, 741-45 (1st Cir. 1995) (upholding ban on operating entertainment business between 1:00 A.M. and 6:00 A.M.). 30 closure, the city must limit its regulation to the hours where such secondary effects exist. Because the city has, without any justification at all, barred adult entertainment establishments from operating during the late morning hours with no indication of any secondary effects, the ordinance is “substantially broader than necessary,” Ward v. Rock Against Racism , 491 U.S. 781, 800 (1989), and must be invalidated. 2 I believe that the majority’s assertion that the city needs no reason to force adult entertainment establishments to close during the late morning hours flies in the face of Renton , which makes clear that where a city regulates to avoid secondary effects, its regulation must be drawn “to affect only that category of theaters shown to produce the unwanted secondary effects . . . .” Renton , 475 U.S. at 52. The majority offers no authority for its position. I believe that the Fifth Circuit’s opinion in Beckerman v. City of Tupelo, Miss. , 664 F.2d 502 (5th Cir. Unit A Dec. 1981), although not binding precedent, is directly on point and should guide our analysis. In Beckerman , the court invalidated a city ordinance forbidding parades after 6 P.M, finding the31 ban substantially broader than necessary to effectuate the city’s interest in nighttime security. The court explained that because the sun did not set in Tupelo until well after 6 P.M. for a good part of the year, the ordinance “unnecessarily restricted [individuals] in the time in which they may parade.” Id. at 512. Although the court recognized “the difficulty Tupelo faces in pinpointi ng the exact time at which the nighttime security problems arise,” id. , it found the city’s use of a 6 P.M. cutoff overbroad since nighttime security could not justify banning parades during the summer when the sun does not set until approximately 8:30 P.M. Id. We face a similar situation here. Although a city may unquestionably regulate the hours of operation of an adult entertainment establishment to avoid the secondary effects associated with late night-hours, the city here, like the city in Beckerman , has done so in an overbroad manner by requiring closure during the late morning hours when no secondary effects have been shown to exist. The fact that the ordinance as a whole here serves to address the problem of late evening hours cannot save this ordinance any more than the fact that the ordinance in Beckerman , taken as a whole, addressed problems of nighttime security.