BRANDYWINE, INC. d/b/a EXPRESSWAY VIDEO and GARY R. SEWELL v. City of Richmond, Kentucky

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0066P (6th Cir.)
File Name: 04a0066p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BRANDYWINE, INC. d/b/a
EXPRESSWAY VIDEO and
GARY R. SEWELL,
Plaintiffs-Appellants,
v.
CITY OF RICHMOND,
KENTUCKY,
Defendant-Appellee.
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No. 02-5507
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 01-00283—Karl S. Forester, Chief District Judge.
Argued: October 29, 2003
Decided and Filed: March 3, 2004
Before: NORRIS, BATCHELDER, and COLE, Circuit
Judges.
_________________
COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV
& SCHWARTZ, Cincinnati, Ohio, for Appellants. Douglas
2 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
L. McSwain, STURGILL, TURNER, BARKER &
MALONEY, Lexington, Kentucky, for Appellee.
ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN,
PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for
Appellants. Douglas L. McSwain, Bryan H. Beauman,
STURGILL, TURNER, BARKER & MALONEY,
Lexington, Kentucky, for Appellee.
NORRIS, J., delivered the opinion of the court, in which
BATCHELDER, J., joined. COLE, J. (pp. 11-15), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
ALAN E. NORRIS, Circuit Judge. Plaintiffs Brandywine,
Inc. and Gary R. Sewell appeal from the district court’s
dismissal of their constitutional challenge to the city of
Richmond’s zoning scheme. They maintain that the district
court erred when it upheld Richmond’s revocation of the
business license to their adult bookstore. For the reasons
given below, the order of the district court is affirmed.
I.
On June 25, 2001, plaintiff Gary R. Sewell, owner and
president of Brandywine, Inc., applied for a business license
in the city of Richmond, Kentucky. Sewell stated on his
application that his business would engage in the “Rental,
Sales & Exhibition of Video, Books, Magazines, e[tc.]” He
signed a statement promising that “No Movies, Books,
Magazines, Novelty item or any other item of an adult nature
will not [sic] be sold, distributed or given away or traded at
this location.” City officials issued him a license. Despite his
disclaimer, Sewell proceeded to open a retail store selling
sexually explicit books and other materials.

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
3
On July 18, 2001, city officials notified plaintiffs by letter
that their store was operating improperly under Richmond’s
zoning rules. The letter stated that the store was located in a
B-3 business zoning district, and that businesses engaged in
selling adult materials were only permitted to locate in I-2
industrial zones. The city revoked plaintiffs’ business license
and ordered that the store be closed.
Since the time that their business was closed, plaintiffs have
expressed no interest in relocating. Nor have they attempted
to appeal their license revocation through the process
provided by Richmond’s zoning rules.
II.
Zoning in Richmond is governed by a Development
Ordinance. The Ordinance divides Richmond into five
zoning districts: agricultural, residential, business, industrial,
and public/semi-public. Within each zoning district, the
Ordinance establishes three categories of permitted land use:
principal/prim ar y, conditional, and accessory.
Principal/primary uses are defined as uses “that are deemed
to be most appropriate, and are permitted outright in a district
without further review by the planning commission or the
board of adjustment.” Conditional uses are defined as “uses
that may or may not be appropriate, dependent upon the
situation. These uses may call for restrictions on location,
size, extent, and character of performance in addition to those
already imposed by the ordinance, and require review and
permitting by [sic] the conditional use requiring review by the
board of adjustments.” The Ordinance gives the board of
adjustments the power to “approve, modify or deny any
application for a conditional use permit.”
The Development Ordinance lists “bookstores” as
principal/primary uses in B-3 zones, and provides that “[i]f a
specific use is not listed, the closest related use will serve as
4 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
the appropriate use category as determined by the planning
commission.”
At the time that plaintiffs applied for their license, the
Development Ordinance included an April 2001 amendment
that categorized “Adult Bookstores” as conditional uses in I-2
zones. It was this amendment that city officials relied upon
when they revoked plaintiffs’ license.
Upon the revocation of their business license, plaintiffs
brought this action for declaratory, injunctive and monetary
relief. They alleged that Richmond’s zoning scheme
unconstitutionally restricted their ability to exercise their First
Amendment rights. They claimed that the April amendment
forced adult businesses to locate in I-2 zones, where, as
conditional uses, the determination of whether they obtained
licenses was subject to the unbridled discretion of the board
of adjustments. They also alleged that the language of the
April amendment was unconstitutionally vague and
overbroad, and that Richmond’s enforcement of the zoning
scheme resulted in the unconstitutional taking of their
property.
Less than one month later, in August 2001, Richmond
modified the Development Ordinance, reclassifying adult
bookstores as principal/primary uses in I-2 zones. With this
change, adult bookstores would no longer have to seek
approval from the board of adjustments before locating in I-2
zones.
Despite the August amendment, plaintiffs continued to
pursue their lawsuit. On March 29, 2002, the district court
held that the Development Ordinance did not
unconstitutionally restrict adult expression, and that the
language of the April amendment was neither vague nor
overbroad. It further held that plaintiffs lacked standing to
challenge the conditional use procedure applied to adult
bookstores in I-2 zones, and alternatively, that the August

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
5
amendment that classified adult bookstores as
principal/primary uses in I-2 zones rendered plaintiffs’
complaint about the conditional use procedure moot.
Accordingly, the district court dismissed plaintiffs’ action.
This appeal followed.
III.
1. Failure to Assert a Ripe Takings Claim
Plaintiffs argue that at the time that their license was
revoked, Richmond’s zoning scheme was unconstitutional
because the April amendment only permitted adult businesses
to locate in I-2 zones subject to the unbridled discretion of
city officials. They contend that Richmond should have
subjected them to the Development Ordinance as it existed
prior to the April amendment, when no mention was made in
the Development Ordinance of adult bookstores, and
“bookstores” were categorized as principal/primary uses in B-
3 zones.
Though plaintiffs have asserted a takings claim, that claim
is premature. We ascertain whether a takings claim is ripe or
not de novo. Bannum, Inc. v. City of Louisville, 958 F.2d
1354, 1362 (6th Cir. 1992). A takings claim is not ripe until
“the government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue.”
Williamson County Regional Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 186 (1985). Because
plaintiffs never appealed the revocation of their license, the
city never reached a final, definitive position regarding the
application of the Development Ordinance to plaintiffs’
business.
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v. City of Richmond
No. 02-5507
2. Standing
Plaintiffs appeal from the district court’s determination that
they lacked standing to challenge provisions of the zoning
scheme that applied outside of B-3 zones because they had
not demonstrated an intent to relocate. Plaintiffs argue that
standing requirements are relaxed in challenges premised on
First Amendment violations, and accordingly, that they
should have been permitted to assert third party standing to
challenge the conditional use procedure applied to adult
bookstores in I-2 zones. They do not appeal the denial of
their claim that that part of the Development Ordinance was
vague or overbroad.
This court reviews de novo the district court’s conclusions
of law with regard to standing. United States v. Miami
University, 294 F.3d 797, 806 (6th Cir. 2002). Where the
district court has dismissed for lack of standing, we “accept
as true all material allegations in the complaint, and construe
the complaint in favor of the complaining party.” Warth v.
Seldin, 422 U.S. 490, 501 (1975).
Under traditional requirements for standing, plaintiffs must
establish (1) injury in fact, meaning an invasion of a legally
protected interest; (2) a causal relationship between the injury
and the challenged conduct; and (3) a likelihood that the
injury will be redressed by a favorable decision. G & V
Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d
1071, 1074 (6th Cir. 1994). The district court correctly held
that under these requirements, plaintiffs have standing to
challenge the zoning scheme’s ban on adult bookstores in B-3
zones, since they were injured in fact when they were forced
to close their business, a causal relationship existed between
the enforcement of the zoning scheme and the harm, and the
injury was redressable by an award of monetary damages for
lost business.

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
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However, “a plaintiff may have standing to challenge some
provisions of a law, but not others.” Clark v. City of
Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). In the instant
case, plaintiffs never alleged any intention to locate outside a
B-3 zone. Therefore, under the traditional requirements, they
lack standing to challenge the provisions of the zoning
scheme that do not relate to B-3 zones, including the
application of the conditional use procedure to adult
bookstores in I-2 zones.
Plaintiffs argue that they should be permitted to assert third
party standing to challenge the conditional use procedure
because they are mounting a First Amendment facial
challenge to Richmond’s zoning scheme. Where plaintiffs
challenge a statute or ordinance for vagueness or overbreadth,
the Supreme Court has concluded that they have standing to
assert the rights of third parties whose protected speech may
have been impermissibly curtailed by the challenged
prohibition, even though as applied to the plaintiffs
themselves, the ordinances only curtailed unprotected
expression. Young v. American Mini Theaters, Inc., 427 U.S.
50, 59 n.17 (1976).
In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), the
Supreme Court concluded that the plaintiffs lacked standing
to challenge “civil disability provisions” that barred
individuals who had committed certain crimes or people
residing with those individuals from obtaining business
licenses, where none of the plaintiffs had committed the listed
crimes or resided with someone who had. FW/PBS, 493 U.S.
at 230-36 (plurality opinion). In East Brooks Books, Inc. v.
City of Memphis, 48 F.3d 220 (6th Cir. 1995), this court
concluded that the plaintiffs lacked standing to challenge
certain “disabling factors” that prevented them from obtaining
business licenses, such as the failure to pay fees and the
commission of certain crimes, because none of those
“disabling factors” applied to them. East Brooks Books, 48
F.3d at 227-28. These cases indicate that plaintiffs may not
8 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
assert third party standing in every First Amendment facial
challenge; rather plaintiffs may only do so in vagueness and
overbreadth challenges. Accordingly, plaintiffs lack standing
to challenge any provision of Richmond’s zoning scheme
inapplicable to B-3 zones.
3. Mootness
Plaintiffs appeal from the district court’s conclusion that
their claims were moot. We agree with the district court that
although plaintiffs had standing to challenge those provisions
of the zoning scheme that applied to B-3 zones, their claims
for injunctive and declaratory relief were rendered moot by
Richmond’s enactment of the August amendment, which
classified adult bookstores as principal/primary uses in I-2
zones. That amendment permitted adult bookstores to locate
in I-2 zones without having to obtain permission from the
board of adjustments. Plaintiffs do not challenge the
constitutionality of the August amendment.
We review the district court’s conclusions of law with
regard to mootness de novo. Cleveland Branch, N.A.A.C.P.
v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001). Claims
become moot “when the issues presented are no longer ‘live’
or parties lack a legally cognizable interest in the outcome.”
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1975)
(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
Plaintiffs ask this court to declare unconstitutional the zoning
scheme as it existed when their license was revoked and to
enjoin Richmond from enforcing that scheme. We can
neither declare unconstitutional nor enjoin the enforcement of
a provision that is no longer in effect.
Plaintiffs’ reliance on City of Mesquite v. Aladdin’s Castle,
Inc., 455 U.S. 283 (1982), is misplaced. Plaintiffs cite
Aladdin’s Castle for the proposition that the repeal of
allegedly unconstitutional legislation does not render moot a
claim for injunctive relief from its enforcement. Critical to

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
9
the holding in that case, however, was the fact that legislators
had publicly expressed an intention to re-enact the offending
legislation. No such threat was made in this case, so the
passage of the August amendment to the Development
Ordinance provides sufficient assurance that the April
amendment will not be re-enacted. See Kentucky Right to
Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997).
Therefore, plaintiffs’ claims for declaratory and injunctive
relief were properly dismissed as moot.
4. Failure to State a Valid Claim for Monetary Damages
Plaintiffs’ claim for monetary damages, however, was not
properly dismissed as moot, because an award of monetary
damages would compensate plaintiffs for the loss of the
opportunity to engage in protected expression caused by the
enforcement of the zoning scheme.
Though not moot, plaintiffs’ claim for monetary damages
must be dismissed for failure to state a claim upon which
relief can be granted. The Constitution permits a city to
require all sexually-oriented businesses to be located in a
particular area within that city. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 46 (1986). However, a city
cannot legislate adult-oriented businesses out of existence.
The First Amendment requires a city to provide a reasonable
opportunity for adult speech somewhere within its borders.
Id.
A claim alleging that a municipal zoning ordinance
unconstitutionally restricts adult businesses would have to
state that the zoning ordinance provided no reasonable
opportunity for adult businesses to operate anywhere within
the city. Stripped of those claims over which the district court
lacked subject matter jurisdiction, plaintiffs’ complaint only
alleges that Richmond’s zoning scheme, as modified by the
April amendment, unconstitutionally restricted their right to
operate in B-3 zones. Plaintiffs cannot assert a valid claim to
10 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
the effect that the scheme provided them with no reasonable
opportunity to locate anywhere in Richmond.
IV.
For the foregoing reasons, the district court’s decision is
affirmed.

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
11
______________
DISSENT
______________
R. GUY COLE, JR., Circuit Judge, dissenting. When this
lawsuit commenced, adult businesses could be
prohibited—per se or at the whim of local regulators—in the
entire City. As a would-be proprietor of an adult business in
the City, Brandywine is a proper party to challenge this
scheme, and the suit survives the City’s subsequent optional
and reversible amendment of the Ordinance. Because
Article III permits our review of Brandywine’s claims, and
because these claims establish that the challenged Ordinance
violates the First Amendment, I respectfully dissent.
A. Standing
In holding that Brandywine lacks standing, the majority
artificially slices Brandywine’s challenge into component
parts—separating its challenge to the Ordinance as a whole
into discrete challenges to the respective regulations
governing zones B-3 and I-2. But we must evaluate the city’s
regulatory scheme in the aggregate: the First Amendment
requires an adequate opportunity for adult businesses to
operate in a given city, not in any particular zone. A total ban
in either zone would be perfectly legal so long as the other
provided sufficient space for adult businesses. See City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
Moreover, that a total ban in one zone is constitutional in
some circumstances does not mean that it would be
constitutional alongside a total ban or other undue restrictions
in all other zones. See, e.g., Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 75-76 (1981); Christy v. City of Ann
Arbor, 824 F.2d 489, 492 (6th Cir. 1987). Brandywine
argues—consistent with the First Amendment’s approach to
the regulation of adult businesses—that given zone I-2's
restrictions, the restrictions on zone B-3 are unconstitutional.
12 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
We can evaluate one zone without the other no more than we
can measure night without day.
Moreover, the district court’s holding that this suit could
not redress Brandywine’s injury, a conclusion that the
majority implicitly ratifies, rests on a misreading of the
Ordinance. The district court determined, as the City argued,
that were we to determine that the Ordinance provides
insufficient space for adult businesses, we would
automatically nullify the restrictions on adult businesses
operating in zone I-2, allowing adult businesses full access to
that zone and leaving all other zones’ restrictions unscathed.
The Ordinance provides no such directions. It does provide
that “[s]hould any section or provisions of the regulations be,
for any reason, held void or invalid, it shall not affect any
other section or provision thereof which is not itself void or
invalid.” Thus, if Brandywine’s challenge could be separated
into component parts, we could save the Ordinance by
jettisoning only the offending part. But under Kentucky law,
which governs whether we may sever a problem provision
from its neighbors, see City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 772 (1988), a statute cannot simply
shed its lone unconstitutional provision when—as is the case
here—all of the statute’s parts are inseparably connected. See
KRS § 446.090. As I explained above, the First Amendment
doctrine governing this challenge demands that we view the
Ordinance in the aggregate. If the Ordinance provides
inadequate space for adult businesses, we must invalidate the
whole thing.
Brandywine’s challenge, including its requests for both
monetary and injunctive relief, necessarily engulfs the entire
Ordinance. Brandywine’s lack of connection with zone I-
2—the supposed gap in its standing—is a red herring.

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
13
B. Mootness
The majority’s alternative basis for affirming the dismissal
of Brandywine’s request for injunctive relief—that the action
is moot—flatly contradicts the Supreme Court and our own
precedent. Because the City amended the Ordinance (less
than a month) after Brandywine filed suit, the City retains the
burden of showing that its amendments moot this challenge.
In Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000), the Supreme Court reaffirmed that “a
defendant claiming that its voluntary compliance moots a case
bears the formidable burden of showing that it is absolutely
clear the allegedly wrongful behavior could not reasonably be
expected to occur.” Id. at 190 (emphasis added). The
possibility looms that the City will reenact the prior version
of the Ordinance once this case is dismissed, and the City has
offered no indication that its most recent amendment is
permanent. And unlike a state or federal legislature, which
must massage the esoteric desires of scores of representatives
in two houses, a city council can enact new measures with
relative ease. Indeed, the record demonstrates how readily
and easily the City can amend the Ordinance: it did so twice
in the five-month period between April 2001 and August
2001.
Yet the majority inverts the burden. According to the
majority, today’s case is moot because City officials have not
vowed to restore the offending provisions following
dismissal. But Brandywine does not have to show that the
challenged conduct will occur again; the City must make it
“absolutely clear” that it will not. Thus, in Akers v.
McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003), we
considered a challenge to certain regulations promulgated by
the Michigan Department of Corrections (MDOC), even
though these regulations had since been repealed. In rejecting
the defendant’s contention that its voluntary repeal mooted
the case, we noted that “as the promulgation of work rules
appears to be solely within the discretion of the MDOC, there
14 Brandywine, Inc., et al.
v. City of Richmond
No. 02-5507
is no guarantee that MDOC will not change back to its older,
stricter Rule as soon as this action terminates.” Id. at 1035.
And in Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir.
2003) (en banc), cert denied, Snyder v. Rosales-Garcia, 123
S.Ct. 2607 (2003), we rejected the government’s assertion
that an immigrant’s challenge to her detention was mooted by
her parole, because the INS had the discretion to return her to
custody and the government had “made no . . . promise [that
her parole would continue uninterrupted].” Id. at 397.
At no point has the City promised that the offending
scheme is gone for good. Short of such an assurance, it
cannot meet its burden under Friends of the Earth. The
majority’s refusal to hold the City to its burden is at odds with
both Supreme Court and Sixth Circuit precedent. And it risks
producing a cycle of amendment, mootness, and
reamendment—the very cycle that mootness doctrine
prohibits.
C. First Amendment
Because Article III allows us to consider Brandywine’s
First Amendment challenges to the Ordinance, as it existed
when Brandywine filed its complaint, we apply the familiar
standards espoused by the Supreme Court. A total ban on
adult business receives strict scrutiny; the restriction of such
businesses to certain areas, however, we analyze as a time,
place, and manner regulation. Renton, 475 U.S. at 46.
Although the City prohibits adult businesses in zone B-3, it
permits them in zone I-2. Moreover, a time, place, and
manner restriction must be justified without reference to the
content of the speech. Here, the ordinance is aimed not at the
content of adult businesses per se, but “rather at the
secondary effects of such theaters on the surrounding
community.” Id. at 47 (emphasis in original).
We therefore reach the case’s crux: “whether the
[Ordinance] is designed to serve a substantial governmental

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No. 02-5507 Brandywine, Inc., et al.
v. City of Richmond
15
interest and allows for reasonable alternative avenues of
communication.” Id. at 50. Assuming, for the sake of
argument, that the City’s interest is substantial, the Ordinance
provides for inadequate alternative spaces for adult businesses
to operate. Even in zone I-2, the one place in which the City
purports to allow adult businesses, they would have to meet
the requirements of a “conditional use.” The Ordinance
defines a conditional use as one:
which is essential to or would promote the public health,
safety, or welfare in one or more zones, but which would
impair the integrity and character of the zone in which it
is located, or in adjoining zones, unless restrictions on
location, size, extent and character of the performance
are imposed in addition to those imposed in the zoning
regulation.
When considered in conjunction with the entire Ordinance,
the amorphous criteria that an adult business must satisfy
hardly provide a guarantee that adequate alternative avenues
exist. Cf. Plain Dealer Publ’g Co., 486 U.S. at 769-70
(invalidating restrictions on adult businesses that vest too
much discretion to the government licensors). The First
Amendment requires that the City “refrain from effectively
denying [its citizens] a reasonable opportunity to open and
operate an adult theater within the city.” Renton, 475 U.S. at
54. Under the Ordinance, any adult business that the City
deems inconsistent with “the integrity and character of the
zone” would find itself without any location in the City in
which to operate—a result that the First Amendment
prohibits.
Because I conclude that Brandywine has standing to
challenge the Ordinance, that its challenge is not moot, and
that the Ordinance violates the First Amendment, I would
reverse the judgment of the district court and remand for the
issuance of an injunction and the computation of
Brandywine’s damages. I respectfully dissent.

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