Fannie's, Inc. v. City of South Fulton

24-11915 Opinion of the Court 3 The district court declined to preliminarily enjoin the City from enforcing the alcohol bans at Fannies. With respect to over- breadth, the court found that Fannies had failed to include any "fac- tual allegations regarding the claimed overbreadth," and that its le- gal arguments in the motion for preliminary injunction and the re- sponse in opposition to the City's motion to dismiss came too late. As for the SOB licensing code, the court found that it was likely subject to intermediate scrutiny as secondary-effects legislation, and that Fannies had not shown that the SOB licensing code failed to satisfy intermediate scrutiny. Fannies appeals.

II.

We have jurisdiction to review interlocutory orders denying injunctive relief.¹28 U.S.C. 1292(a)(1). "Because of the extraordi- nary and drastic nature of preliminary injunctive relief, we will dis- turb the denial of a preliminary injunction only if the district court

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4 Opinion of the Court 24-11915 abused its discretion." Haitian Refugee Ctr., Inc. v. Christopher, 43 F.3d 1431, 1432 (11th Cir. 1995) (quotation marks omitted). No deference is owed, however, where the court "misapplies the law."

Id.; see Speer v. Miller, 15 F.3d 1007, 1009 (11th Cir. 1994). We re- view legal conclusions de novo. Mills v. Hamm, 102 F.4th 1245, 1248 (11th Cir. 2024).

III.

We start with Fannies's overbreadth claim. We conclude that the district court erred by failing to consider Fannies's legal arguments on the merits of this claim, but that no injunction should issue for lack of a showing of irreparable harm. The First Amendment overbreadth doctrine allows a party to challenge a law on its face, rather than as applied to the party, because the law also threatens others not before the court who may refrain from engaging in legally protected expression rather than risking prosecution or challenging the law. Cheshire Bridge Holdings, LLC v. City of Atlanta, 15 F.4th 1362, 1370 (11th Cir. 2021). To prevail, plaintiffs must show that the challenged law is "substan- tial[ly] overbroad" relative to its legitimate sweep. Id. Plaintiffs

"bear the burden of demonstrating from the text of the challenged provisions and from actual fact that a substantial number of in- stances exist in which the provisions cannot be applied constitu- tionally." Id. at 1370-71 (cleaned up). But such proof of "actual fact" is "not a requirement in an overbreadth case," meaning the plaintiff can rely on the text alone. Id. at 1377-78.

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24-11915 Opinion of the Court 5 There's no dispute that Fannies's complaint provided fair notice of its First Amendment claim that § 16-5006 of the alcohol ordinance was unconstitutionally overbroad. Instead, the district court faulted Fannies for "failure to support this claim with factual allegations." "But because [Fannies] mounted [a] facial over- breadth challenge[] the underlying facts are largely irrelevant." Id. at 1365. Nor is there "a requirement in an overbreadth case" for plaintiffs to establish instances of overbreadth in "actual fact," even if we assume for the sake of argument that such instances must be specifically alleged in the complaint. Id. at 1377-78. Rather, Fannies can rely on the text of the challenged provi- sions alone to establish overbreadth. See id. And determining the scope of a statute on its face, including hypothetical application sce- narios, presents a question of law. See, e.g., United States v. Daniels,

685 F.3d 1237, 1244 (11th Cir. 2012) ("The interpretation of a stat- ute is a question of law subject to de novo review."). Indeed, "the first step in overbreadth analysis is to construe the provisions being challenged; it is impossible to determine whether a law reaches too far without knowing what it covers." Cheshire Bridge, 15 F.4th at 1367 (cleaned up). Thus, the district court erred by failing to con- sider Fannies's legal arguments about the scope of the challenged provision in its motion for preliminary injunction and its response in opposition to the motion to dismiss.

Because the district court did not fully address Fannies's like- lihood of success on the merits of its overbreadth claim, or any of the other injunctive-relief factors, we would ordinarily vacate and

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6 Opinion of the Court 24-11915 remand for the court to consider these issues in the first instance. Smith v. Casey, 741 F.3d 1236, 1243 n.7 (11th Cir. 2014) ("With re- spect to a decision we would review only for an abuse of discretion, we generally decline to substitute our judgment about the matter when the district court has not yet decided it and leave the decision for the district court to make in the first instance."). We decline that route here, though, because Fannies cannot make a showing of irreparable injury absent an injunction against § 16-5006. See Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) ("[E]ven if Plain- tiffs establish a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper.").

As we explain below, the district court properly declined to enjoin the SOB licensing code, which independently prohibits the possession or consumption of alcohol at Fannies. So even if we enjoined § 16-5006 of the alcohol code as substantially overbroad, Fannies is still subject to the SOB licensing code's alcohol ban. See Curves, LLC v. Spalding County, 685 F.3d 1284, 1292 (11th Cir. 2012) (declining to address the constitutionality of an alcohol ordinance where another ordinance "constitutionally prohibits the same acts Plaintiffs desire to engage in (selling alcohol and providing nude dancing)"). Thus, an injunction would have little to no practical effect on Fannies pending final resolution of its claims, making pre- liminary injunctive relief inappropriate. See Univ. of Texas v. Came- nisch, 451 U.S. 390, 395 (1981) ("The purpose of a preliminary in- junction is merely to preserve the relative positions of the parties until a trial on the merits can be held.").

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24-11915 Opinion of the Court 7

IV.

The district court did not abuse its discretion by denying pre- liminary injunctive relief as to the SOB licensing code. For starters, we agree with the court that the SOB licensing code is likely subject to intermediate scrutiny, not strict scrutiny. We recently reaffirmed "that regulations that target undesirable secondary effects of protected expression are deemed content neu- tral, and courts review them with an intermediate level of scru- tiny," Wacko's Too, Inc. v. City of Jacksonville, 134 F.4th 1178, 1187 (11th Cir. 2025) (quotation marks omitted), notwithstanding the Supreme Court's decision in Reed v. Town of Gilbert, 576 U.S. 155

(2015).

On its face, the SOB licensing code is based on a secondary- effects rationale, and we cannot say at this early stage that Fannies is likely to succeed in casting "direct doubt" on that rationale.² Zibtluda, LLC v. Gwinnett County, 411 F.3d 1278, 1287 (11th Cir. 2005); see, e.g., Artistic Entm't, Inc. v. City of Warner Robins, 223 F.3d 1306, 1309 (11th Cir. 2000) ("Given the wealth of documentary ev- idence and testimony presented to it, we conclude that the Warner Robins City Council had an adequate basis for concluding that pro- scribing the sale and consumption of alcohol would reduce the crime and other social costs associated with adult businesses."). Fannies's contention that the City acted with the intent to suppress

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8 Opinion of the Court 24-11915 speech is largely "circumstantial, inferential, and remote," based on the City's knowledge of the experiences of other cities in imposing similar alcohol bans. Zibtluda, 411 F.3d at 1288. But contrary to Fannies's suggestion, the City was permitted to consider "the ex- perience of other cities" and "studies done in other cities." Wacko's Too, 134 F.4th at 1189. And "we will not strike down an otherwise constitutional statute on the basis of an alleged legislative illicit mo- tive." Zibtluda, 411 F.3d at 1289 (quotation marks omitted). The district court also reasonably concluded that the City's SOB licensing code likely satisfied intermediate scrutiny. We have repeatedly upheld "similar nude-dancing-while-selling-alcohol bans." Curves, 685 F.3d at 1287, 1290 & n.7 (upholding an ordinance that prohibited nude dancing or certain "simulated" sexual activity where alcohol was served or consumed); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 995-96 (11th Cir. 1998) (upholding an ordinance that prohibited nude dancing at establishments licensed to serve alcohol); see also Artistic Entm't, Inc. v. City of Warner Robins,

223 F.3d 1306, 1309 (11th Cir. 2000) (upholding a ban on the sale and consumption of alcohol at adult businesses); Wise Enters., Inc.

v. Unified Gov't of Athens-Clarke Cnty., 217 F.3d 1360, 1363 (11th Cir. 2000) (same). While Fannies cites the effects of the SOB licensing code and the alcohol bans on the economic viability of their busi- ness, nothing in the SOB licensing code prohibits Fannies from con- tinuing to offer nude dancing. See Sammy's of Mobile, 140 F.3d at 998 ("In prohibiting nude dancing where liquor is sold, the ordi- nance restricts only the place or manner of nude dancing without regulating any particular message it might convey."). "[N]or does

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24-11915 Opinion of the Court 9 it limit the number of establishments where nude dancing can oc- cur." Wise Enters., 217 F.3d at 1363.

Given our precedent upholding alcohol bans similar to the City's, which Fannies does not attempt to distinguish on appeal, the district court did not abuse its discretion in concluding that Fan- nies was unlikely to succeed on the merits of this challenge to the SOB licensing code.

V.

In sum, we affirm the denial of Fannies's motion for prelim- inary injunctive relief.

AFFIRMED.

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