FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14474

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D. C. Docket No. 04-00207-CV-ORL-19-DAB

DAVKEN, INC.,

a corporation organized under the

laws of the State of Indiana,

Plaintiff-Appellant,

versus

CITY OF DAYTONA BEACH SHORES, FL,

a municipal corporation organized under

the laws of the State of Florida,

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(February 16, 2010)

Before BARKETT, PRYOR and HILL, Circuit Judges.

PER CURIAM:
Davken appeals the summary judgment in favor of the City of Daytona

Beach Shores, Florida. Davken, Inc. owns Krazy Dave’s Fireworks, a fireworks

retailer in Daytona Beach Shores, Florida, and argues that Daytona Beach Shores

City Ordinance No. 2003-24, as written and implemented, effectively bans the

retail sale of fireworks in the City and violates the constitutional rights of Davken

under the Contract Clause, U.S. Const. Art. I, § 10, and the Due Process Clause of

the Fourteenth Amendment, id. Amend. XIV. We affirm.

Ordinance No. 2003-24 requires both sellers and prospective purchasers of

fireworks to obtain a permit from the City Building/Fire Safety Division. In July

2003, City officials informed Davken that, under the Ordinance, all customers

would be required to obtain permits at the police department during normal

business hours. Most customers, upon learning of the requirement, left Krazy

Dave’s and never returned. Instead, they drove several blocks north and purchased

fireworks in Daytona Beach. Krazy Dave’s ceased doing business on August 31,

2003.

Davken filed a verified complaint that the City failed to implement the

permitting process required by the Ordinance and created a “sham” permitting

scheme that rendered worthless the building lease for Krazy Dave’s. Davken

argues that this “sham” substantially impaired its property rights protected by the

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Contract Clause and the Due Process Clause of the Fourteenth Amendment. We

disagree.

The claim of Davken under the Contract Clause fails. A regulation does not

violate the Contract Clause so long as it serves a “significant and legitimate public

purpose,” and is “[based] upon reasonable conditions and [is] of a character

appropriate to the public purpose justifying [the legislation’s] adoption.” Energy

Reserves Group v. Kan. Power & Light, 459 U.S. 400, 411–12, 103 S. Ct. 697, 705

(1983) (alternations in original) (internal quotation marks omitted). The City, by

enacting and implementing the Ordinance, was entitled to exercise its police

power, even if the Ordinance effected a total restraint on the existing lease for

Krazy Dave’s. See Flanigan’s Enters., Inc. of Ga. v. Fulton County, 242 F.3d 976,

989 (11th Cir. 2001); see also Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470, 504 n.31, 107 S. Ct. 1232, 1252 n.31 (1987).

The claim of a violation of procedural due process also fails. Even if

Davken’s lease is a property interest protected by the right of procedural due

process, the City did not deprive Davken of its lease. The City instead allegedly

failed to implement a permitting process required for Davken’s customers to

purchase fireworks. Davken fails to explain how the inability of its customers to

obtain permits to purchase fireworks violates the right of procedural due process of

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Davken.

We have carefully reviewed the record and considered the written and oral

arguments of the parties. We find no reversible error. The summary judgment is

AFFIRMED.

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