*

Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by

designation. 

 1In fact, Digital made the contract contingent upon the rezoning of the property from "B-7Q"

to B-3P. B-3P zones contain fewer restrictions than other commercially zoned areas. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-4056.

DIGITAL PROPERTIES, INC., a Florida Corporation, Plaintiff-Appellant,

v.

CITY OF PLANTATION, a Florida Municipal Corporation, Defendant-Appellee.

Sept. 5, 1997.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL*, Senior Circuit Judge.

HATCHETT, Chief Judge:

In this appeal, we affirm the judgment of the district court dismissing this First Amendment

action based on appellant's failure to present an actual case or controversy.

BACKGROUND

Appellant Digital Properties, Inc. (Digital) sought to establish an adult book and video store

in the City of Plantation, Florida (Plantation or the City). The business would include the rental or

sale of sexually oriented video tapes, books, magazines and novelties, as well as the on-premises

viewing of sexually explicit video materials using currency-operated viewing devices. Digital

entered into a contract to purchase a commercial building, which had formerly housed a restaurant,

located on State Road 7 in Plantation. Digital subsequently hired an architect, Robert Ishman, to

design and plan the remodeling necessary to convert the property to conform to Digital's intended

use.

Prior to Digital's contractual agreement to purchase the property, the City reclassified the

property as a "B-3P" zone.1 Pursuant to the City's master list of business and commercial uses, a B3P zone is a general business district permitting such business uses as book stores, newsstands, and
theater and motion picture houses. See Plantation Code of Ordinances (Code of Ordinances or

P.C.O.) § 27-720. Pursuant to the Code of Ordinances,

[w]here a commercial or business use is not expressly permitted or prohibited on [the] master

list of business and commercial uses, it shall be deemed permissive and shall require an

ordinance defining such permissive use, placing such restrictions thereon as are deemed

appropriate, and otherwise identifying the commercial or business zoning use districts

wherein such permissive use will be permitted; it being the expressed intent of the city

council that all such permissive (nonidentified) uses on the master list of business and

commercial uses are prohibited until so defined and included.

P.C.O. § 27-716(g).

The master list of business uses did not expressly identify adult book or video stores as either

permitted or prohibited in the B-3P zone. Based upon prior advice of counsel, Digital believed that

any zoning scheme which did not expressly permit adult businesses in at least one zoning area was

unconstitutional pursuant to the Supreme Court's decision in Schad v. Borough of Mount Ephraim,

452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Assuming, therefore, that Plantation's zoning

scheme was unconstitutional, Digital nonetheless proceeded to determine whether the City permitted

such non-listed uses in B-3P zones.

On September 22, 1995, Ishman and Digital's attorney, Joseph Lopez, attempted to file the

remodeling plans at Plantation City Hall. Plantation required that an owner file such plans and obtain

zoning approval prior to the issuance of a building permit. See P.C.O. § 27-416. A clerk in the

building department first directed Ishman and Lopez to seek "environmental approval" before

submitting the plans. The clerk also suggested that the men meet with her supervisor, the Chief

Building Inspector. Following the clerk's advice, Ishman and Lopez discussed their plans with the

supervisor, who instructed them to visit the zoning department.

Upon reaching the zoning department, Lopez and Ishman spoke with Assistant Zoning

Technician Kris Sorrentino. They introduced themselves as representatives of the State Road 7

property's owner and informed Sorrentino of Digital's intent to change the use of the building from

a restaurant to an adult book and video store. The men handed Sorrentino the following description

of the proposed enterprise:

A retail business which rents and sells pre-recorded videotapes, sells books, magazines,

periodicals, novelties and paraphernalia, as well as allowing on-premise, individual viewing
of videotapes by way of currency-operated viewing devices. Most of the products and

videotapes in an Adult Video Store are of the sexually oriented, adult variety, for which

reason minors are excluded from the premises.

The parties contest the exact nature of Sorrentino's response. Digital contends that

Sorrentino told Ishman and Lopez that "the City of Plantation does not allow such use" and refused

to accept the plans. The City asserts that Sorrentino informed them that the Code of Ordinances did

not expressly permit such a use in a B-3P zone. Digital does not appear to contest, however, that

Sorrentino then advised Ishman and Lopez to speak with Manny MacLain, Plantation's Director of

Building and Zoning, in part because the scope of her job did not encompass accepting building

plans over the counter. Following this exchange with Sorrentino, the men immediately left without

consulting with MacLain.

On September 27, 1995, Digital filed this action in the United States District Court for the

Southern District of Florida pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. Digital

averred that Plantation's zoning scheme was unconstitutional, both facially and as applied. Digital

contended that Sorrentino's alleged statement impaired its constitutional rights and constituted

injury-in-fact. On September 28, 1995, Digital also sought a preliminary injunction prohibiting

Plantation from enforcing the Code of Ordinances to prevent Digital from opening its business.

Plantation responded to Digital's preliminary injunction motion and filed a motion on October 30,

1995, pursuant to Federal Rule of Civil Procedure 12(b), to dismiss the complaint.

On November 13, 1995, the district court dismissed Digital's complaint without prejudice

for lack of subject matter jurisdiction. The court held that Digital's complaint failed to present an

actual case or controversy ripe for adjudication as required by Article III of the United States

Constitution. In support of its holding, the court found that Digital's "rush to the courthouse was

premature." The court also referred to Digital's failure to exhaust its administrative remedies,

pursuant to Plantation's procedures for obtaining zoning variances, as a basis for its dismissal of the

complaint. Digital filed this appeal.

ISSUE

We address whether the district court properly dismissed Digital's complaint for lack of
subject matter jurisdiction based on Digital's failure to present a case or controversy ripe for judicial

review.

DISCUSSION

 We review a district court's dismissal of a complaint for lack of subject matter jurisdiction

under the de novo standard. Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 954

n. 4, 104 S.Ct. 2839, 2846 n. 4, 81 L.Ed.2d 786 (1984); GTE Directories Publ'g Corp. v. Trimen

Am., Inc., 67 F.3d 1563, 1567 (11th Cir.1995). After a careful review of the record, we find that

Digital failed to present a case or controversy ripe for judicial review, and we affirm the district

court's judgment.

 The ripeness doctrine involves consideration of both jurisdictional and prudential concerns.

Johnson v. Sikes, 730 F.2d 644, 648 (11th Cir.1984). Article III of the United States Constitution

limits the jurisdiction of the federal courts to cases and controversies of sufficient concreteness to

evidence a ripeness for review. See U.S. Const. art. III, § 2, cl. 1; see also Hallandale Prof'l Fire

Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 759 (llth Cir.1991). "Even when the

constitutional minimum has been met, however, prudential considerations may still counsel judicial

restraint." Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 n. 12 (D.C.Cir.1986);

see also Johnson, 730 F.2d at 648.

 The ripeness doctrine protects federal courts from engaging in speculation or wasting their

resources through the review of potential or abstract disputes. "The doctrine seeks to avoid

entangling courts in the hazards of premature adjudication." Felmeister v. Office of Attorney Ethics,

856 F.2d 529, 535 (3d Cir.1988); see also Abbott Lab. v. Gardner, 387 U.S. 136, 148, 87 S.Ct.

1507, 1515, 18 L.Ed.2d 681 (1967). The ripeness inquiry requires a determination of (l ) the fitness

of the issues for judicial decision, and (2) the hardship to the parties of withholding court

consideration. Abbott, 387 U.S. at 149, 87 S.Ct. at 1515-16; see also Cheffer v. Reno, 55 F.3d 1517,

1524 (11th Cir.1995). Courts must resolve "whether there is sufficient injury to meet Article III's

requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the

issues sufficiently defined and concrete, to permit effective decisionmaking by the court." Cheffer,
 2

This assumption derived from Digital's interpretation of the Schad decision. Although we do

not decide this issue, we note that, in footnote 18, Justice White specifically stated that the

Court's decision "does not establish that every unit of local government entrusted with zoning

responsibilities must provide a commercial zone in which [protected activity] is permitted." 

Schad, 452 U.S. at 75 n. 18, 101 S.Ct. at 2186 n. 18. 

 3

As she asserted in her Declaration in Opposition to Motion for Preliminary Injunction,

Sorrentino did not even have the authority to accept the plans at the counter. 

55 F.3d at 1524.

 Under the facts at issue, Digital, in its haste to preserve its perceived First Amendment

rights, failed to present a mature claim for review. Digital argues correctly that the injury

requirement is most loosely applied when a plaintiff asserts a violation of First Amendment rights

based on the enforcement of a law, regulation or policy. See Cheffer, 55 F.3d at 1523 n. 12;

Hallandale, 922 F.2d at 760. Even assuming, however, that Plantation's zoning scheme could

potentially hamper Digital's First Amendment rights, Digital did not pursue its claim with the

requisite diligence to show that a mature case or controversy exists. See Restigouche, Inc. v. Town

of Jupiter, 59 F.3d 1208, 1212 (11th Cir.1995); Johnson, 730 F.2d at 648.

Digital's primary contention posits that Plantation unconstitutionally applied its zoning

regulations to preclude Digital from conducting business as an adult-oriented enterprise in

Plantation. The actions of Digital's representatives show that Digital's presumption of constitutional

infirmity bred impatience and prompted it to file an unripe claim.

Upon advice of counsel, Digital erroneously presumed that Supreme Court precedent

rendered Plantation's Code of Ordinances unconstitutional because the P.C.O. failed to provide at

least one zone wherein adult enterprises were explicitly permitted.2

 Employees of the building

department informed Digital's representatives that they should speak with members of the zoning

department. Upon reaching the zoning department, however, Digital waited only long enough to

have one non-supervisory employee "confirm" its assumption. At a minimum, Digital had the

obligation to obtain a conclusive response from someone with the knowledge and authority to speak

for the City regarding the application of the zoning scheme to Digital's proposal.3

 Sorrentino's

alleged statement to Digital's representatives that "the City of Plantation does not allow such use,"
 4

To the extent that the complaint challenges the facial constitutionality of the Code of

Ordinances, we dismiss the claim for lack of ripeness as a matter of judicial restraint. With

regard to any facial challenge, Digital only contests the district court's reliance on Digital's

simply is not sufficient to create a concrete controversy. We do not find that Sorrentino's conduct

deprived Digital of its purported First Amendment rights.

 A challenge to the application of a city ordinance does not automatically mature at the

zoning counter. In order for the city to have "applied" the ordinance to Digital, a city official with

sufficient authority must have rendered a decision regarding Digital's proposal. Aside from merely

expressing her initial reaction to the proposal, Sorrentino suggested that Ishman and Lopez should

meet with her supervisor to obtain a decision regarding zoning approval; following this suggestion

would have had no more of a "chilling" effect on Digital's First Amendment rights than did their

following the suggestion of the building department clerk that the men meet with the Chief Building

Inspector. As the Supreme Court held in Abbott, a "basic rationale" of the ripeness doctrine is "to

protect the [administrative] agencies from judicial interference until an administrative decision has

been formalized and its effects felt in a concrete way by the challenging parties." 387 U.S. at 148-

49, 87 S.Ct. at 1515.

Digital's impatience precluded the formation of a concrete case or controversy. Without the

presentation of a binding conclusive administrative decision, no tangible controversy exists and,

thus, we have no authority to act. See Hallandale, 922 F.2d at 762-63. The Code of Ordinances,

on its face, permits book stores to conduct business in a B-3P zone. See P.C.O. 27-720. In addition,

although not expressly permitted, the City appears to allow the operation of video stores in a B-3P

zone. Moreover, no explicit delineation between book and video stores and adult book and video

stores exists in the Code of Ordinances. Digital's challenge, therefore, is founded upon its

anticipated belief that Plantation would interpret the P.C.O. in such a way as to violate Digital's First

Amendment rights. Accordingly, this action only constitutes a potential dispute, and this court has

neither the power nor the inclination to resolve it. See Abbott, 387 U.S. at 148, 87 S.Ct. at 1515;

see also Association for Children for Enforcement of Support, Inc. v. Conger, 899 F.2d 1164, 1166

(11th Cir.1990).4
failure to exhaust its administrative remedies. Even if we assume, however, that the Supreme

Court's decision in Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172

(1982), precludes imposing an exhaustion requirement on a First Amendment facial challenge to

an ordinance under 42 U.S.C. § 1983, Digital still faces the ripeness hurdle. Specifically, we

must still consider whether "the conflicting parties present a real, substantial controversy which

is definite and concrete rather than hypothetical or abstract." Hallandale, 922 F.2d at 760. As

noted above, Digital neglected to present a mature claim upon which a federal court could make

a "well-reasoned, constitutional decision." Hallandale, 922 F.2d at 760. 

 5Given its lack of subject matter jurisdiction, the district court also properly denied Digital's

motion for a preliminary injunction. In addition, the court did not abuse its discretion in refusing

to allow Digital to file a second amended complaint. Such a maneuver would have been futile,

as it would not have cured Digital's failure to take sufficient action to create a concrete

controversy. See Rudolph v. Arthur Andersen & Co., 800 F.2d 1040, 1042 (11th Cir.1986), cert.

denied, 480 U.S. 946, 107 S.Ct. 1604, 94 L.Ed.2d 790 (1987); Halliburton & Assocs., Inc. v.

Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir.1985). 

CONCLUSION

 The determination of ripeness "goes to whether the district court had subject matter

jurisdiction to hear the case." Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 7 (11th

Cir.1989). Digital's erroneous presumptions and impatience led it to rush to the courthouse and

present an insufficiently concrete claim. Consequently, the district court properly dismissed this

action.5

AFFIRMED