VFW JOHN O'CONNOR POST 4833

v.

SANTA ROSA COUNTY

RODGERS, District Judge.

This cause is before the court on the cross motions for partial summary judgment filed by plaintiff VFW John O’Con-nor Post #4833 (“the Post”) and defendant Santa Rosa County, Florida (“the County”), to which motions the parties have filed responses.

1

For the reasons and to the extent set forth below, the court GRANTS the County’s motion.

BACKGROUND

The following facts are recited in the light most favorable to plaintiff or, except as noted, are undisputed.

2

The Post is a non-profit corporation located in Milton, Santa Rosa County, Florida. It currently holds a retail alcoholic beverage license issued by the State of Florida for the on-premises sale and consumption of beer and wine containing no more than 6.243% alcohol, or 5% by weight (“beer and wine”). The Post held this license at the time the voters of Santa Rosa County approved by referendum the sale of liquor, i.e., beverages containing more than 6.243% alcohol, or 5% by weight. The Post now wishes to apply to the State of Florida for an enlargement of its alcoholic beverage license that would permit it to sell liquor in addition to beer and wine. As part of its application to the State the Post is required to submit proof of compliance with the County’s zoning requirements, specifically in this case a certificate of zoning compliance or waiver.³

Section 7.01.13 of the Santa Rosa County Land Development Code (“LDC”), provides for the regulation of vendors selling liquor, beer, or wine for on-premises consumption in Santa Rosa County.

4

Section 7.01.13(A)(1) sets forth

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a distance requirement of 2500 feet between vendors who sell liquor, beer, or wine and established churches or schools. Subsection (E), Waiver of Distance Requirements, in part provides that the Santa Rosa Board of County Commissioners (“the Board”) may waive the distance requirements “upon a proper showing by the applicant that the Board should waive such requirement.” § 7.01.13(E), Santa Rosa County LDC. Pursuant to subsection (D), in addition to a fee of $25.00 which must accompany the application for certificate of zoning compliance, applicants seeking a waiver of the distance requirements must also submit an extra fee of $25.00 “for the purpose of offsetting the cost of confirming whether any affected churches or schools have consented to the waiver .... ” § 7.01.13(D), Santa Rosa County LDC.

The Post’s place of business is located within 2500 feet of two churches. It submitted an application to the County for

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zoning approval and/or a waiver of the zoning requirements that would permit it to sell liquor. In January 2006 the application was discussed at a meeting of the Santa Rosa County Public Services Committee as well as a meeting of the Board. Relying upon the distance requirements contained in § 7.01.13, the Board denied the Post’s application.

5

In its complaint filed pursuant to 42 U.S.C. § 1983,

6

the Post seeks a judicial determination that § 7.01.13 of the Santa Rosa LDC is unconstitutional because it violates rights protected by the First, Fifth, and Fourteenth Amendments. Count I of the complaint alleges the violation of the Establishment Clause due to the unconstitutional delegation of legislative power to churches. Count II alleges the violation of the Equal Protection Clause, based on § 7.01.13’s lack of an ascertainable standard for obtaining a waiver to the distance requirements and its grant of authority to churches to withhold their consent to such waiver. Counts III, IV, and V are claims for the violation of the Due Process Clause; they assert that § 7.01.13 is facially invalid (Count III), is invalid as applied (Count IV), and offends substantive due process (Count V). These counts, which contain virtually identical assertions, allege that § 7.01.13 fails to provide standards for assessing the denial of waivers by the Board and the refusal to consent by churches and that it vests unbridled discretion in decisionmaking by the Board and/or churches. As relief for the alleged violations of its rights, the Post seeks a preliminary and permanent injunction, a declaratory judgment, damages, and attorneys’ fees.

The Post has moved for summary judgment as to Counts¹, 3, and⁴ only of its complaint. The County has also moved for partial summary judgment. It does not seek judgment as to specific counts of the Post’s complaint but rather requests a declaratory judgment that upholds the validity of § 7.01.13’s distance requirements and severs any unconstitutional portions of the ordinance, leaving the distance requirements intact.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; see

also Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is “ ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under

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the governing [substantive] law.”

Anderson,

477 U.S. at 248, 106 S.Ct. 2505;

Tipton v. Bergrohr GMBH-Siegen,

965 F. 2d 994, 998 (11th Cir.1992).

The movant carries the initial burden and must show that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex Corp.,

477 U.S. at 325, 106 S.Ct. 2548. “Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.”

Clark v. Coats & Clark, Inc.,

929 F. 2d 604, 608 (11th Cir.1991). The nonmovant is then required “to go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions, and the like, designating “specific facts showing that there is a genuine issue for trial.”

Celotex Corp.,

477 U.S. at 324, 106 S.Ct. 2548. Although evidence presented in opposition to the motion for summary judgment, and all factual inferences arising from it, must be viewed in the light most favorable to the nonmoving party,

Adickes,

398 U.S. at 157, 90 S.Ct. 1598;

Jones v. Cannon,

174 F. 3d 1271, 1281 (11th Cir.1999), a general denial unaccompanied by any evidentiary support will not suffice.

See, e.g., Courson v. McMillian,

939 F. 2d 1479 (11th Cir.1991);

Hutton v. Strickland,

919 F. 2d 1531 (11th Cir.1990). Moreover, the existence of a scintilla of evidence in support of the nonmovant’s position is insufficient; the test is “whether there is [evidence] upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”

Anderson,

477 U.S. at 252, 106 S.Ct. 2505.

DISCUSSION

As an initial matter, although the parties’ summary judgment papers do not address this issue, the court shall briefly discuss its jurisdiction to consider the Post’s claims. Article III of the United States Constitution requires federal courts to consider only actual cases and controversies. U.S. Const., Art. III;

Lujan v. Defenders of Wildlife,

504 U.S. 555, 559, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Part of the cases or controversies limitation includes the doctrine of standing, which consists of constitutional as well as prudential requirements.

See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta,

219 F. 3d 1301, 1309 (11th Cir.2000). The party invoking federal jurisdiction bears the burden of proving constitutional standing.

See Lujan,

504 U.S. at 561, 112 S.Ct. 2130. To meet his constitutional burden, the party must show injury-in-fact, causation, and redressability.

See Northeastern Florida Contractors v. Jacksonville,

508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Three prudential principles also bear on standing. The party’s claim must fall “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”; the claim must be for injury to the party’s own legal rights and interests, rather than the legal rights or interests of third parties; and the injury must be individualized or confined to a discrete group.

See, e.g., Allen v. Wright,

468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

In this case, the Post has shown that it has suffered an actual or threatened injury in the form of the denial of the distance requirements waiver, that this injury is fairly traceable to the challenged conduct of the County, and that such injury is likely to be redressed by a favorable ruling.

Lujan,

504 U.S. at 560-61, 112 S.Ct. 2130. Furthermore, the Post’s claims fall within the zone of interests protected by the relevant provisions of § 7.01.13 and implicate individualized injuries to the Post’s own legal rights and interests. Thus the court concludes that the Post has satisfactorily established its

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standing to challenge § 7.01.13 of the Santa Rosa County LDC.

Count I: Establishment Clause

The Post primarily relies on

Lemon v. Kurtzman,

403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and

Larkin v. Grendel’s Den, Inc.,

459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), for its argument that § 7.01.13 fails to achieve neutrality toward religion and thus violates the Establishment Clause. More specifically, the Post contends that the ordinance unconstitutionally delegates to churches the County’s exercise of legislative discretion to deny zoning approval.

7

The County responds that the waiver provision in § 7.01.13 is factually distinguishable from the waiver provision at issue in

Larkin

and is not constitutionally deficient.

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.”

8

U.S.C.A. Const. Amend. 1. The Supreme Court recently reiterated that the “touchstone” for Estab-lishment Clause analysis is “that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’ ”

McCreary County, Kentucky, v. ACLU,

545 U.S. 844, 125 S.Ct. 2722, 2733, 162 L.Ed.2d 729 (2005) (internal quotation marks and other citations omitted). When assessing the permissibility of statutes under the Establishment Clause, courts should apply the three-pronged test first articulated by the Supreme Court in

Lemon v. Kurtzman,

403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)

9

;

see also Board of Education of Kiryas Joel Village School District v. Grumet,

512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994). Pursuant to the

Lemon

test, government action survives an Establishment Clause challenge if it (1) has a secular purpose, (2) has a primary effect of neither advancing nor inhibiting religion, and (3) does not foster excessive government entanglement with religion.

See Lemon,

403 U.S. at 612-13, 91 S.Ct. 2105. Only if all three criteria are satisfied may the law be upheld.

See Church of Scientology Flag

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Service Organization, Inc., v. City of Clearwater,²

F. 3d 1514, 1527 (11th Cir.1993).

Judicial review of the first prong of the

Lemon

is deferential. A statute is invalid only if it “does not have a clearly secular purpose.”

Wallace v. Jaffree,

472 U.S. 38, 56, 105 S.Ct. 2479, 2489-90, 86 L.Ed.2d 29 (1985). “A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate.”

Edwards v. Aguillard,

482 U.S. 578, 599, 107 S.Ct. 2573, 2586, 96 L.Ed.2d 510 (1987) (Powell, J„ concurring) (citations omitted). The Supreme Court has explained that a secular purpose need not be hostile or even unrelated to religion:

This does not mean that the law’s purpose must be unrelated to religion— that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never been so interpreted. Rather,

Lemon’s

“purpose” requirement aims at preventing the relevant government decisionmaker ... from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,

483 U.S. 327, 335, 107 S.Ct. 2862, 2868, 97 L.Ed.2d 273 (1987) (internal citations omitted).

In the instant case, religious purpose does not predominate in § 7.01.13. Rather, the ordinance clearly has a valid secular purpose,

i.e.,

“the secular goal of protecting churches and schools from the disruption associated with liquor serving establishments.”

10

Larkin,

459 U.S. at 124 n. 6, 103 S.Ct. 505. Thus the court concludes that § 7.01.13 satisfies

Lemon’s

first element.

The court also concludes that § 7.01.13 satisfies the second and third factors set out in

Lemon.

In

Larkin,

the Supreme Court focused on these two factors in examining the constitutionality of a delegation of power by the Commonwealth of Massachusetts to churches and schools to veto applications for liquor licenses.

See Larkin,

459 U.S. at 117, 103 S.Ct. 505. The Court held that the disputed statute failed the

Lemon

test and violated the Establishment Clause because it both fostered excessive entanglement of government with religion and had the effect of advancing religion. The Court found the statute had the primary effect of advancing religion because “[t]he churches’ power under the statute [was] standardless, calling for no reasons, findings, or reasoned conclusions. That power may therefore be used ... for explicitly religious goals.... ”

Id.

at 125, 103 S.Ct. 505. The Court also stated that “the mere appearance of a joint exercise of legislative authority by Church and State provides significant benefit to religion in the minds of some by reason of the power conferred.”

Id.

at 125-26, 103 S.Ct. 505. In addition, the Court concluded the statute created excessive entanglement of religious and secular affairs by “enmesh[ing] churches in the exercise of

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substantial governmental powers.... ”

Id.

at 126, 103 S.Ct. 505. The Court determined that the statute brought about a “fusion of governmental and religious functions” by delegating “important, discretionary governmental powers” to religious bodies, thus impermissibly entangling government and religion.

Larkin,

459 U.S. at 126, 127, 103 S.Ct. 505. The Court emphasized that “[u]nder our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government.”

Id.

at 126, 103 S.Ct. 505 (quoting

Lemon,

403 U.S. at 625, 91 S.Ct. 2105).

As the Post submits,

Larkin

is the most significant case ever handed down by the Supreme Court to deal with a statute that vests in schools and churches the power effectively to veto applications for liquor licenses within close proximity to them.

11

Contrary to the Post’s assertions, however, the statute in

Larkin

and the ordinance in this case are factually distinct, as § 7.01.13 does not vest such authority in schools and churches. In

Larkin,

the statute specifically provided that “[premises ... located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection thereto.”

Larkin,

459 U.S. at 117, 103 S.Ct. 505. Section 7.01.13, on the other hand, simply provides for the payment of a $25.00 fee to ascertain whether the applicant’s place of business is within 2500 feet of a school or church and, if a distance requirement waiver is sought, a second fee of $25.00 to be used to “off-sett ] the cost of confirming whether any affected churches or schools have consented to the waiver of the provisions of sub-part A above.” Section 7.01.13(D), Santa Rosa County LDC. Accordingly, while the reasoning and discussion in

Larkin

are instructive here, because

Larkin

is factually distinguishable its application of the second and third

Lemon

factors does not control the result in the instant case.

Rather, as to the second prong of the

Lemon

test, the court concludes that § 7.01.13 does not have the primary effect of advancing religion.

12

This ordinance accords churches no authority, much less authority that could “be used ... for explicitly religious goals.... ”

Larkin,

459 U.S. at 125, 103 S.Ct. 505. Nor does the ordinance provide for any exercise of legislative authority by churches in conjunction with the County or give the appearance of such.

See id.

at 125-26, 103 S.Ct. 505. Section 7.01.13 does not vest authority in schools or churches to veto, either expressly or effectively, an application for a liquor license or to make zoning decisions of any sort. Indeed, it vests no power with respect to zoning applications — or any other discretionary authority — in schools or churches. The ordinance, in neutral fashion and through the use of nominal fees used only to offset the County’s costs, provides for determining the distance between liquor-serving businesses and schools and churches and for ascertaining whether they have consented to a waiver.¹³

Nothing in the ordinance, however, conditions approval of a waiver upon such con

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sent. Indeed, as the County submits, nothing in § 7.01.13 would preclude the Board from granting a waiver even if an affected school or church objected or refused its consent.

14

Thus, contrary to the Post’s contention, the ordinance does not give churches veto power over zoning decisions nor does it grant substantial weight to the viewpoint of any affected churches with respect to such zoning decisions. Furthermore, the distance requirements in § 7.01.13 do no more than convey the County’s desire to protect or insulate churches and schools from the disruption associated with liquor-serving establishments. That message reflects a valid secular interest in appropriate zoning laws, not an improper interest in promoting religious points of view.

See Lynch v. Donnelly,

465 U.S. 668, 687-88, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring) (stating that

Lemon’s

second prong effectively asks whether “the practice under review in fact conveys a message of endorsement or disapproval.”). Finally, the ordinance provides churches with a benefit that is also provided to secular institutions,

i.e.,

schools. The Establishment Clause does not bar the extension of general benefits to religious groups.

See Widmar v. Vincent,

454 U.S. 263, 273, 102 S.Ct. 269, 276, 70 L.Ed.2d 440 (1981) (reiterating that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion).

For essentially the same reasons that apply to the “effect” prong of the

Lemon

test, the court further concludes that § 7.01.13 does not foster excessive government entanglement with religion.

15

While the ordinance provides for, and anticipates that the Board may receive, input from churches and schools regarding zoning decisions pertaining to the sale and on-premises consumption of alcoholic beverages near them, it does not improperly “enmesh churches in the exercise of substantial governmental powers.... ”

Larkin,

459 U.S. at 126, 103 S.Ct. 505. Indeed, as previously discussed, the ordinance grants churches no authority whatsoever with regard to zoning decisions.

16

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Id.

at 126, 103 S.Ct. 505. Moreover, as a general matter, “the Establishment Clause was intended to afford protection [against] ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ”

Lemon,

403 U.S. at 612, 91 S.Ct. 2105. The ordinance’s distance requirements implicate no financial support or day-to-day involvement with religious groups and thus in these respects also provide no basis for concluding that it creates an excessive entanglement problem.

For all of the above reasons, the court is persuaded that § 7.01.13 of the Santa Rosa LDC survives an Establishment Clause challenge under the

Lemon

test. In sum, as to Count I of the complaint, the County has shown “an absence of evidence to support the nonmoving party’s case,”

Celotex Corp.,

477 U.S. at 325, 106 S.Ct. 2548, and the Post has failed to “demonstrate that there is indeed a material issue of fact that precludes summary judgment.”

Clark,

929 F. 2d at 608. Accordingly, the County is entitled to summary judgment in its favor with respect to Count I.

Counts III and IV: Due Process Clause

The Post also makes a facial due process challenge to § 7.01.13. It argues that the ordinance permits the Board to waive the distance requirements upon a “proper showing” that a waiver should be granted but fails entirely to define the criteria for that standard. According to the Post, because the decision of whether to grant a distance waiver is left to the unbridled discretion of the Board, § 7.01.13(E) is void for vagueness. Furthermore, the Post argues, the offending provision cannot be severed because it is “inextricably intertwined” with the “remainder of the ordinance” and “the County structured the ordinance so that the waiver provisions were essential to the application for a certificate of zoning.” (Doc. 31-1 at 3). The County argues that the waiver provision of § 7.01.13 is not unconstitutional but, if this court were to conclude otherwise, that the provision is severable.

The typical procedure for constitutional challenges to a regulatory or statutory provision is to first test the provision for constitutionality. If the regulation is found unconstitutional, the court must then determine whether the constitutionally offensive provision can be severed from the rest of the regulation.

See New York v. United States,

505 U.S. 144, 186, 112 S.Ct. 2408, 2434, 120 L.Ed.2d 120 (1992). The court proceeds accordingly in this case.

In contrast to a claim that a statute is unconstitutional “as applied,” in which a party asserts that application of the statute to his particular circumstances would be unconstitutional, a facial challenge seeks to secure a declaration that a statute is utterly inoperative.

See Ada v. Guam Soc’y of Obstetricians and Gynecologists,

506 U.S. 1011, 1012, 113 S.Ct. 633, 634, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting);

see also Horton v. City of St. Augustine,

272 F. 3d 1318, 1329 (11th Cir.2001) (stating that “[a] facial challenge, as distinguished from an as-applied challenge, seeks to invalidate [an ordinance] itself.”). In order to show that an ordinance is facially invalid, “the challenger must establish that no set of circumstances exist under which the [ordinance] would be valid.”

Id.

at 1329 (citation and internal quotation marks omitted);

see also Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455

*1092

U.S. 489, 494-95, 497, 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982) (noting that facial challenge for vagueness will fail unless the statute “is impermissibly vague in all of its applications”). Vague laws present two kinds of problems. The first is that a person of ordinary intelligence may be unable to determine how to conform his conduct to the law; the second is that the lack of explicit standards may result in persons charged with enforcement of the law acting arbitrarily and dis-criminatorily.

See Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972);

United States Civil Service Commission v. National Association of Letter Carriers,

413 U.S. 548, 579, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). A plaintiff must establish that the challenged ordinance is “ ‘so vague and indefinite as really to be no rule or standard at all.’ ”

Seniors Civil Liberties Ass’n, Inc. v. Kemp,

965 F. 2d 1030, 1036 (11th Cir.1992) (quoting

Boutilier v. INS,

387 U.S. 118, 123, 87 S.Ct. 1563, 1566, 18 L.Ed.2d 661 (1967)).

The ordinance at issue in this case may be said to implicate both types of problems discussed above. Under § 7.01.13(E), the Board may waive the distance requirements “upon a proper showing by the applicant that the Board should waive such requirement.” Because this waiver provision lacks any criteria for applying the “proper showing” standard, this subsection is so vague and indefinite as to provide no guidance for persons seeking to comply with its requirements. The waiver provision of the ordinance is not “set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with.... ”

National Association of Letter Carriers,

413 U.S. at 579, 93 S.Ct. 2880. Furthermore, § 7.01.13(E)’s lack of any identifiable criteria for applying the standard could result in its arbitrary or discriminatory application by those charged with its enforcement.

See Grayned,

408 U.S. at 108, 92 S.Ct. 2294. In short, the ordinance’s “proper showing” standard is “really [ ] no rule or standard at all.”

Seniors Civil Liberties Association, Inc. 965 F. 2d at 1036. Accordingly, the court finds that on its face the waiver provision set forth in § 7.01.13(E) is unconstitutional.

“Severability of a local ordinance is a question of state law....”

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); see also

Coral Springs Street Systems, Inc. v. City of Sunrise,

371 F. 3d 1320, 1347 (11th Cir.2004). As explained by the Eleventh Circuit, “Florida law clearly favors (where possible) severance of the invalid portions of a law from the valid ones.”

Coral Springs Street Systems, Inc.,

371 F. 3d at 1347 (quoting

Ray v. Mortham,

742 So. 2d 1276, 1280 (Fla.1999)). Moreover, under Florida law, “[a]lbeit not binding, a legisla tively expressed preference for the sever-ability of voided provisions is persuasive.”

Id.

at 1349 (citing

Moreau v. Lewis,

648 So. 2d 124, 127 (Fla.1995));

see also Seay Outdoor Advertising, Inc. v. City of Mary Esther, Florida,

397 F. 3d 943, 950 (11th Cir.2005) (noting that Florida law directs that deference be paid to a legislatively expressed preference for severance of voided provisions). The Florida Supreme Court has articulated a four-part test for severability. “When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the legislature would have passed the one without the other and, (4)

*1093

an act complete in itself remains after the invalid provisions are stricken.”

Id.

at 1348 (quotation omitted).

The court concludes that § 7.01.13(E) is severable from the rest of § 7.01.13. First, the court notes that both the Santa Rosa County Ordinance Book and Ordinance 89-04, the first iteration of the distance requirements ordinance, contain severability clauses.

{See

doc. 26, exhs.² and³). As to the four-part sever-ability test, the court finds that § 7.01.13(E) is a discrete section of the ordinance and can easily be separated from the remaining valid provisions. In addition, although § 7.01.13 contains no express statement of purpose, its legislative purpose of protecting churches and schools from the disruption associated with liquor serving establishments is implicit in the valid provisions and can be accomplished independently of § 7.01.13(E). Section 7.01.13 also remains an act complete in itself absent the invalid § 7.01.13(E) as, pursuant to

Larkin,

the County is entitled to ban alcoholic beverages entirely within a reasonable distance from schools and churches.

17

See Larkin,

459 U.S. at 128, 103 S.Ct. 505 (indicating that “an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions” would be valid). Moreover, the ordinance continues to require, and to provide an adequate procedure for, vendors who desire to sell liquor, beer, or wine for on-premises consumption to obtain a certificate of zoning compliance from the County for properties that are not within 2500 feet of a school or church.

18

While a closer question, the court also concludes that excising § 7.01.13(E) from the rest of the distance requirements ordinance does not run afoul of the third prong of the Florida severability test. As the Post contends, at present it is permitted to sell beer and wine, which suggests that in enacting § 7.01.13 it was the Board’s intent to provide for waivers of the distance requirements provision. Nevertheless, because § 7.01.13 evinces a clear interest in insulating churches and schools from the disruption associated with the service of alcoholic beverages, the court concludes that the Board would have enacted an ordinance banning such beverages within 2500 feet of schools and churches even had it known that the waiver provision would be declared unconstitutional. The court does not believe that, in light of the basic purpose of § 7.01.13, the Board would have preferred no ordinance at all to an ordinance “standing by itself [which is] capable of functioning on its own [and which] still helps to achieve that basic objective.”

Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission,

518 U.S. 727, 768, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion). Because the general ordinance and the waiver are sufficiently separable in substance, the court concludes that “it can be

*1094

said that the [the Board] would have passed the one without the other.”

Coral Springs Street Systems, Inc.,

371 F. 3d at 1348. The court thus finds that the invalid § 7.01.13(E) is severable from the remainder of § 7.01.13.

19

The court turns next to the Post’s as applied challenge to § 7.01.13. The Post asserts that any decision by the Board that it failed to make a proper showing for waiver is “unilateral, arbitrary, and capricious.” (Doc. 24 at 18). The Post also contends that it has a vested right in the sale of alcoholic beverages and that the County should be estopped from denying it a certificate of zoning or a waiver because it “is only proposing to do what [the] County has already consented for [it] to do: sell alcoholic beverages, albeit in a different form.” (Doc. 24 at 18). According to the Post, there is no rational basis for distinguishing between beer/wine and alcohol “once any alcohol is sold within the prescribed distance.”

(Id.).

The County argues that the Post cannot establish a vested right in the sale of liquor and that, based on the broad grant of authority contained in the Twenty-First Amendment, it may differentiate between beer/wine and liquor in regulating alcoholic beverages.

Because the court has found that the waiver provision of the ordinance contained in § 7.01.13(E) is facially unconstitutional, it follows that § 7.01.13(E) likewise is unconstitutional as applied to the Post.

20

With the excision of the offensive § 7.01.13(E), however, the Post cannot succeed with an as-applied due process claim as to the remainder of the distance requirements ordinance. Section 7.01.13, after the severance of § 7.01.13(E), forbids the sale and on-premises consumption of any type of alcohol within the prohibited zone, with no exceptions. This restriction, as previously discussed, is permissible on its face and as applied to the Post.

See also New York State Liquor Authority v. Bel-lanca,

452 U.S. 714, 715, 101 S.Ct. 2599, 2600, 69 L.Ed.2d 357 (1981) (indicating that state has “absolute power under the Twenty-First amendment to prohibit totally the sale of liquor within its boundaries”)

21

;

City of Daytona Beach v. Del Percio,

476 So. 2d 197, 201 (Fla.1985) (stating that “[t]he Florida Constitution and the statutes ... imbue the [County] with the state’s full police powers, including those under the Twenty-First Amendment.”).

*1095

Under Florida law, to claim a vested right, the plaintiff must show either: “(1) that it has reasonably and detrimentally relied on existing law (equitable estoppel); or (2) that [the government] has acted in a clear display of bad faith.”

Seay,

397 F. 3d at 948 (citing

Coral Springs Street Systems, Inc.,

371 F. 3d at 1334). To successfully invoke the doctrine of equitable estoppel against a local government, a plaintiff must show that he “(1) in good faith (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired.”

Coral Springs Street Systems, Inc.,

371 F. 3d at 1334. As noted in

Coral Springs Street Systems, Inc.,

the doctrine of equitable estoppel is “nothing more than an application of the rules of fair play.”

Id.

(quoting

Town of Largo v. Imperial Homes Corp.,

309 So. 2d 571, 573 (Fla. 2nd DCA 1975)). Canvassing Florida cases in which equitable estoppel had been found, the

Coral Springs Street Systems, Inc.,

court summarized numerous examples of “unfair dealing,” all of which involved plaintiffs who had invested considerable sums of money in good faith reliance on zoning decisions or grants of permits only to have the authorities later rescind or reconsider their previous actions.

Id.

The Florida Supreme Court has stated that an alcoholic beverage license is merely the grant of a privilege and, though the license may possess certain qualities of property in a commercial sense, it is not property in the constitutional sense.

See Walling Enterprises, Inc. v. Mathias,

636 So. 2d at 1296-97. Nevertheless, assuming,

arguendo,

that a vendor may possess a protected property interest in selling liquor, the court concludes that the Post is unable to establish that it has the vested right it claims or that the County should be equitably estopped from denying it the waiver it seeks. The Post has failed to establish that it changed its position to any degree, much less made such “a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy” any right it may have to sell liquor. See Coral Springs Street Systems, Inc.,

371 F. 3d at 1334. Thus the Post has not shown that it is entitled to relief under the doctrine of equitable estoppel. Nor has the Post alleged, or shown, that the County has acted in a clear display of bad faith.

22

Accordingly, the court finds that the Post has no vested right in the sale of liquor for on-premises consumption.

23

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In summary, the court finds that § 7.01.13(E) of the Santa Rosa County Land Development, Waiver of Distance Requirements, is unconstitutional on its face and, perhaps, as applied to the Post but that § 7.01.13(E) is severable from the remainder of § 7.01.13. The court further finds that § 7.01.13, as severed, survives the Post’s facial and as-applied due process challenges, as presented in Counts III and IV of the complaint. As the Post has failed to “demonstrate that there is indeed a material issue of fact that precludes summary judgment,”

Clark,

929 F. 2d at 608, the County is entitled to judgment in its favor with respect to Counts III and IV.

Counts II and V: Equal Protection Clause and Substantive Due Process

Remaining are the Post’s equal protection and substantive due process claims (set forth in Counts II and V of the complaint), which neither party has addressed in its summary judgment papers.

“A district court possesses the power to enter summary judgment sua

sponte

provided the losing party ‘was on notice that she had to come forward with all of her evidence.’ ”

Burton v. City of Belle Glade,

178 F. 3d 1175, 1203-04 (11th Cir.1999) (citation omitted);

Massey v. Congress Life Insurance Co.,

116 F. 3d 1414, 1417 (11th Cir.1997) (stating that “[district courts unquestionably possess the power to trigger summary judgment on their own initiative,” but must “ensure that the parties receive adequate notice that they must bring forward all of their evidence”). In this case, the court issued an order and notice dated October⁵, 2006, giving the parties a date certain to submit all evidentiary materials authorized to be filed under the Federal Rules of Civil Procedure. The court therefore believes that the parties have previously received adequate notice that they were required to bring forward all of their evidence in this case. The court shall, however, require the parties to brief the issues relevant to the disposition of Counts II and V, with such memoranda to be filed no later than March 26, 2007.

24

Conclusion

As discussed above, the court concludes that the Post has failed to meet its summary judgment burden with respect to Count I of the complaint and that the County therefore is entitled to judgment in its favor. Count I therefore is due to be dismissed with prejudice. In addition, the court finds that § 7.01.13(E) of the Santa Rosa County Land Development, Waiver of Distance Requirements, is unconstitutional on its face and, perhaps, as applied to the Post but that in any event § 7.01.13(E) is severable from the remainder of § 7.01.13. The court further finds that § 7.01.13, as severed, survives the Post’s facial (Count III) and as-applied

*1097

(Count IV) due process challenges and that the County is entitled to judgment in its favor with respect to those counts, which shall also be dismissed with prejudice. Finally, the parties shall brief the issues presented in Counts II and V of the Post’s complaint, filing their memoranda no later than March 26, 2007.

Accordingly, it is the ORDER of this court that:

1. Section 7.01.13(E) of the Santa Rosa County Land Development, Waiver of Distance Requirements, is DECLARED unconstitutional and is SEVERED from the remainder of Section 7.01.13, which otherwise shall remain in place as enacted.

2. The County’s motion for partial summary judgment (doc. 26) is GRANTED, to the extent that Counts I, III, and IV of the Post’s complaint are DISMISSED, with prejudice.

3. The Post’s motion for partial summary judgment (doc. 24) is DENIED.

4. The parties shall file briefs on the issues relevant to the disposition of Counts II and V of the Post’s complaint no later than March 26, 2007.

5. The clerk shall defer entering judgment until the conclusion of the entire case.