FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 8, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07–11418

D.C. Docket No. 04-10097-CV-JLK

.

ISLAND SILVER & SPICE, INC., 

GLENN S. SAIGER, 

VIRGINIA SAIGER, 

husband and wife, 

Plaintiffs–Appellees, 

versus

ISLAMORADA, 

a Florida municipality,

VILLAGE OF ISLANDS,

a Florida municipality, 

Defendants–Appellants. 

Appeal from the United States District Court

for the Southern District of Florida

(September 8, 2008)
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,

*

sitting by designation. 

2

Before TJOFLAT and BLACK, Circuit Judges, and RESTANI, Judge. *

RESTANI, Judge: 

Defendant-Appellant Islamorada, Village of Islands (“Islamorada”) appeals

from a judgment of the United States District Court for the Southern District of

Florida granting injunctive and monetary relief in favor of Plaintiffs-Appellees

Island Silver & Spice, Inc., Glenn S. Saiger, and Virginia Saiger (collectively

“Island Silver”) and invalidating an Islamorada zoning ordinance’s “formula

retail” restrictions as violations of the Dormant Commerce Clause. We affirm the

judgment of the district court. 

BACKGROUND

In January 2002, Islamorada enacted Ordinance 02-02, which prohibited

“formula restaurant[s]” and restricted “formula retail” establishments to limited

street level frontage and total square footage. (See Ordinance 02-02

§§ 6.4.3–4(a–b), available at R.E. Tab 2 at 22 (“Ordinance 02-02” or “the

ordinance”).) The ordinance defines formula retail as: 

[a] type of retail sales activity of retail sales establishment . . . that is

required by contractual or other arrangement to maintain any of the

following: standardized array of services or merchandise, trademark,

logo, service mark, symbol, decor, architecture, layout, uniform, or
3

similar standardized feature. 

(Id. at § 6.4.1(e).) 

Island Silver owns and operates an independent retail store in Islamorada. 

See Island Silver & Spice, Inc. v. Islamorada, 475 F. Supp. 2d 1281, 1282 (S.D.

Fla. 2007) (“Island Silver”). In June 2002, Island Silver entered into a contract to

sell its property to a developer seeking to establish a Walgreens drug store in the

same footprint of Island Silver’s existing mixed-retail store. Id. at 1284. After

unsuccessfully protesting the ordinance’s restrictions on formula retail stores

through the local administrative process, the developer withdrew from the

purchase. Id. at 1284–85. Island Silver brought a complaint against Islamorada in

district court, seeking damages, injunctive relief, and a writ of mandamus on the

grounds that the ordinance’s formula retail provisions violated its rights to Due

Process, Commercial Speech, Equal Protection, Privileges and Immunities, the

Commerce Clause, and the terms of the Florida Constitution. Id. at 1282. 

On February 28, 2007, the district court granted injunctive and monetary

relief in favor of Island Silver and invalidated the ordinance’s formula retail

provisions. Id. at 1294. The district court found that the provisions violated the

Dormant Commerce Clause because they had a discriminatory impact on interstate

commerce unsupported by a legitimate state purpose and the putative local
This appeal was consolidated for oral argument with Cachia v. Islamorada, No. 1

06-16606, which is disposed of in a separate opinion, filed concurrently with this opinion. 

4

benefits were outweighed by the burden imposed on interstate commerce. Id. at

1292–93. Islamorada appeals.1

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the appeals of final judgments of the district court

pursuant to 28 U.S.C. § 1291. We review the district court’s factual findings for

clear error and its legal conclusions de novo. Ruiz v. Tenorio, 392 F.3d 1247,

1251 (11th Cir. 2004). 

DISCUSSION

The Dormant Commerce Clause prohibits “regulatory measures designed to

benefit in-state economic interests by burdening out-of-state competitors.” New

Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988). To determine whether a

regulation violates the Dormant Commerce Clause, we apply one of two levels of

analysis. See Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S.

573, 578–79 (1986). If a regulation “directly regulates or discriminates against

interstate commerce,” or has the effect of favoring “in-state economic interests,”

the regulation must be shown to “advance[ ] a legitimate local purpose that cannot

be adequately served by reasonable nondiscriminatory alternatives.” Bainbridge
5

v. Turner, 311 F.3d 1104, 1109 (11th Cir. 2002) (quotations and citations

omitted). If a regulation has “only indirect effects on interstate commerce,” we

“examine[ ] whether the State’s interest is legitimate and whether the burden on

interstate commerce clearly exceeds the local benefits.” Brown-Forman, 476 U.S.

at 579 (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). 

The district court correctly determined that the formula retail provision does

not facially discriminate against interstate commerce. See Island Silver, 475

F. Supp. 2d at 1290 (stating that “the ordinance is facially neutral”). With respect

to the provision’s effects, however, the parties stipulated that the ordinance

“effectively prevents the establishment of new formula retail stores,” and “[a]

facility limited to no more than 2,000 square feet or 50’ of frontage [as required by

the ordinance] can not accommodate the minimum requirements of nationally and

regionally branded formula retail stores.” (Evidentiary Stipulation, available at

Island Silver, No. 04-10097-CV-JLK, Doc. 77-2 at 7 (“Evidentiary Stipulation”).) 

Although the fact that the burden of a regulation falls onto a subset of out-of-state

retailers “does not, by itself, establish a claim of discrimination against interstate

commerce,” Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 126 (1978), the

ordinance’s effective elimination of all new interstate chain retailers has the

“practical effect of . . . discriminating against” interstate commerce, Hunt v.
The district court applied both the elevated scrutiny and balancing tests, finding that

2

“[the] ordinance fails both tests: it is discriminatory in impact . . . without an adequate legislative

purpose, and the burden it imposes is clearly excessive in relation to its putative local benefits.” 

Island Silver, 475 F. Supp. 2d at 1290. We agree that on this record it fails both. 

Regulations that facially discriminate or have a discriminatory effect on interstate 3

commerce rarely pass the elevated scrutiny test. See Brown-Forman, 476 U.S. at 579 (stating

that such regulations are “virtually per se invalid”). 

6

Washington Apple Advertising Commission, 432 U.S. 333, 350 (1977). The

formula retail provision is therefore subject to elevated scrutiny. Id. at 353; see 2

also Bainbridge, 311 F.3d at 1109. 

Under the elevated scrutiny test, a regulation must be supported by “a

legitimate local purpose that cannot be adequately served by reasonable

nondiscriminatory alternatives.” Bainbridge, 311 F.3d at 1109 (quotations and 3

citation omitted). The burden is on Islamorada to justify the ordinance’s

discriminatory effects. Hunt, 432 U.S. at 353 (“When discrimination against

commerce . . . is demonstrated, the burden falls on the State to justify it both in

terms of the local benefits flowing from the statute and the unavailability of

nondiscriminatory alternatives adequate to preserve the local interests at stake.”). 

The ordinance’s stated local purposes include the preservation of “unique

and natural” “small town” community characteristics, encouragement of “small

scale uses, water-oriented uses, [and] a nationally significant natural

environment,” and avoidance of increased “traffic congestion . . . [and] litter,
7

garbage and rubbish offsite.” (Ordinance 02-02 at Preamble.) The parties

stipulated, however, that “Islamorada has a number of [pre-existing] ‘formula

retail’ businesses,” (Evidentiary Stipulation, at 6 n.3), Islamorada “has no Historic

District, and there are no historic buildings in the vicinity of [Island Silver’s]

property,” (id. at 6–7), and “[t]he Ordinance is not necessary for preservation of

the historic characteristics of any buildings in the Village,” (id. at 7). In addition,

because the ordinance “does not address small formula retail stores, which are

permitted under the ordinance, but would presumably affect the Village’s small

town character as well,” or large non-chain businesses, the district court found that

“[r]estricting formula retail stores, while allowing other large [and] non-unique

structures, does not preserve a small town character.” Island Silver, 475 F.

Supp. 2d at 1292. The district court properly determined that, although “[i]n

general, preserving a small town community is a legitimate purpose . . . , in this

instance, [Islamorada] has not demonstrated that it has any small town character to

preserve.” Id. at 1291. 

With respect to the stated purpose of encouraging small-scale and natural

uses, the parties also stipulated that Islamorada’s existing “zoning allows the use

of the property as a retail pharmacy . . . and other retail uses,” (Evidentiary

Stipulation, at 1), and that Island Silver operated as “a street level business
8

comprising over twelve thousand square feet of floor area,” (id. at 2), which

“greatly exceeds the [ordinance’s] dimensional limitations” for formula retail

businesses, (id. at 3). The district court correctly found that Islamorada “[did] not

explain why the ordinance singles out retail stores and restaurants with

standardized features,” Island Silver, 475 F. Supp. 2d at 1292, and that the record

did not indicate that Islamorada is “uniquely relaxed or natural,” or that there is “a

pre-dominance of natural conditions and characteristics over human intrusions,”

id. at 1291. 

Similarly, the stated purposes of reducing traffic and garbage are

undermined by the parties’ stipulations that Islamorada has existing “land

development regulations, other than the Ordinance, that govern and control traffic

generation of retail uses,” and “that limit the dimensions, location, and use of

buildings and signs.” (Evidentiary Stipulation, at 7.) The district court therefore

properly concluded that Islamorada failed to provide a legitimate local purpose to

justify the ordinance’s discriminatory effects, and that even if such purpose had

been shown, “the ordinance does not serve this interest.” Island Silver, 475

F. Supp. 2d at 1292. 

Islamorada’s failure to indicate a legitimate local purpose to justify the

ordinance’s discriminatory effects is sufficient to support the district court’s
9

determination that the formula retail provision is invalid under the Dormant

Commerce Clause. See id. (“Because the ordinance clearly fails the first two

prongs of the [elevated scrutiny] test, the Court does not need to reach the merits

of the third prong of the test. Whether [Islamorada] can show that no adequate,

non-discriminatory methods were available is therefore immaterial.”). It should be

noted, however, that Islamorada does not assert that the stated purposes of the

ordinance cannot be furthered by reasonable nondiscriminatory alternatives, such

as Islamorada’s existing land development regulations. (See, e.g., Evidentiary

Stipulation, at 7.) Even under the balancing approach advocated by Islamorada,

the stipulated facts indicate that the formula retail provision’s disproportionate

burden on interstate commerce, such as the effective exclusion of interstate

formula retailers, clearly outweighs any legitimate local benefits. 

Accordingly, the district court did not err in concluding that the ordinance’s

formula retail provision violated the Dormant Commerce Clause. 

CONCLUSION 

We therefore AFFIRM the judgment of the district court.