Jorgenson v. County Of Volusia

846 F.2d 1350 (1988)

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Nature of the Case

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Facts

Attorneys filed an application in the district court for a temporary restraining order and a preliminary injunction on behalf of their clients, who own and operate a lounge known as 'Porky's.' They also filed a memorandum of law which challenged the validity of a Volusia County ordinance prohibiting nude or semi-nude entertainment in commercial establishments at which alcoholic beverages are offered for sale or consumption. The memorandum failed to discuss or cite two clearly relevant cases: City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla.1985) and New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L. Ed. 2d 357 (1981). Latinsky had participated in the Del Percio case where the Supreme Court of Florida held that the powers under the Twenty-First Amendment had been delegated. Less than one year later, Latinsky brought this current suit seeking a declaration that a similar ordinance was unconstitutional and requesting a temporary restraining order and a preliminary injunction. The attorneys cited a number of cases describing the limits on the exercise of the general police power but they did not advise the court in any way that Del Percio had been decided, despite the fact that Del Percio required that the validity of the ordinance be judged in light of powers retained under the Twenty-First Amendment rather than the general police power. The court levied Rule 11 sanctions against the attorneys and they appealed.