McDoogal's East, Inc. v. County Commissioners of Caroline County

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________

No. 07-1665
___________

MCDOOGAL’S EAST, INCORPORATED; WILLIAM J. STEINER,

Plaintiffs - Appellants,

v.

THE COUNTY COMMISSIONERS OF CAROLINE COUNTY, John W. Cole,
President, Roger L. Layton, Vice President, Mario J.
Gangemi, Commissioner, Roads Board Chairman, In their
official capacity,

Defendant - Appellee.

____________

Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:05-cv-01517-WDQ)
____________

Argued: May 12, 2009 Decided: August 28, 2009
____________

Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Malcolm J.
HOWARD, Senior United States District Judge for the Eastern
District of North Carolina, sitting by designation.
____________

Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Chief Judge Traxler and Senior Judge Howard joined.
____________

ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellants. Kevin Bock Karpinski, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellee. ON
BRIEF: Daniel P. Doty, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellants. Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellee.
____________

Unpublished opinions are not binding precedent in this circuit.

2
AGEE, Circuit Judge:

William J. Steiner (“Steiner”) appeals the grant of summary

judgment by the United States District Court for the District of

Maryland in favor of the County Commissioners of Caroline

County, Maryland (“the County Commissioners”), holding that

certain zoning enactments (“the Moratorium” and “the Ordinance”

which are hereinafter defined, collectively “the Enactments”)

did not improperly infringe on Steiner’s rights under the First

Amendment of the United States Constitution. Steiner argues

that the Enactments are unconstitutional because the predominant

intent was to limit his protected First Amendment right of

expression and that the evidence of negative secondary effects

of adult-oriented businesses (“AOBs”) does not reasonably

support the zoning scheme adopted by the County Commissioners.

For the following reasons, we affirm the judgment of the

district court.

I.

A.

Caroline County, Maryland (“the County”) is a rural county

in eastern Maryland with a population of about 30,000 residents. 1

1
For convenience, unless an action by the County
Commissioners is at issue, we will simply refer to the County as
the relevant entity.

3
In 2005, the County began the process of revising its

comprehensive plan, as its land-use plan had not been updated

for over a decade and its zoning ordinance had not been revised

for over two decades. Elizabeth Krempasky (“Krempasky”), the

Director of Planning and Codes Administration for the County

from 1985 to 2006, oversaw the revision process.

As early as 2001, the County’s attorney suggested that the

County should address the zoning of AOBs. Krempasky testified

that in 2001 she realized that the County had no AOB

regulations, and that the County should “have some adult

business regulations, even though at that time [they] didn’t

have adult business [sic] that was actually proposing to operate

in Caroline County.” J.A. 99. Prior to 2005, there had never

been an AOB in the County.

In 2004 Steiner became interested in purchasing a property

in the County, which was then being operated as a sports bar

under the name of The 19th Hole. Intending to convert The 19th

Hole to an AOB, Steiner entered into a contract to purchase it

on March 8, 2005.

To operate as an AOB, Steiner determined that he needed to

obtain a Special Use Exception from the County Board of Zoning

Appeals. According to Steiner, when County officials learned of

his interest in operating The 19th Hole as an AOB, they began to

prepare the Moratorium, an ordinance that would prevent the

4
approval of the site as an AOB during the period the Moratorium

was in effect. Steiner asserts that the specific purpose of the

Moratorium was to prevent him from opening an AOB, and that the

County Commissioners and County employees, including Krempasky,

intentionally did not tell him about the plans for the

Moratorium. The County contends that the Moratorium was enacted

solely to give the County more time to consider proper permanent

zoning regulations for AOBs.

On March 9, 2005, Steiner obtained an Occupancy Permit, an

application for a Special Use Exception, submitted a site plan,

and obtained an application for Water Supply and/or Sewage

Verification. On March 10, Krempasky sent an e-mail to the

County’s attorney, informing him of these activities and urging

the completion of the Moratorium documents. On April 4, Steiner

received approval for the site plan and submitted the Special

Use Exception application.

The Caroline County Planning Commission (“Planning

Commission”) held a public hearing for consideration of the

Moratorium on April 13, 2005. At the hearing, “maps of the

locations in the County where adult businesses could locate

under the temporary Moratorium Ordinance were provided to the

Planning Commission members.” Br. of Appellee 4. The Moratorium

imposed a ban on approval of applications, site plans, or

permits for AOBs for six months, restricted the available

5
locations for AOBs, and required particular setback requirements

and advertising restrictions. Under the terms of the

Moratorium, The 19th Hole property was in a zoning district

where AOBs were not permitted to locate.

The minutes from the Planning Commission meeting show a

discussion of the “adverse secondary effects associated with

adult oriented businesses,” and that “[t]he County, through

zoning, cannot totally ban all adult oriented business from its

jurisdiction.” J.A. 1944-45. An e-mail from the County’s

attorney reflects that in drafting the Moratorium, First

Amendment factors were a consideration: “[a] moratorium on an

adult oriented business . . . is particularly difficult to

fashion because it could be construed as a prior restraint on

free speech . . . which is clearly unconstitutional . . . .”

J.A. 2359-60. The text of the Moratorium as adopted states that

there are “secondary effects issues” associated with AOBs and

that the “County requires time to ensure that the desired public

input can be obtained before establishing more enduring textual

amendments to the Zoning Ordinance . . . .” J.A. 65.

The Moratorium was unanimously adopted by the Planning

Commission on April 13, 2005, and then enacted by the County

Commissioners on April 19, 2005. Steiner’s application for a

Special Use Exception had not been approved as of the effective

date of the Moratorium, April 30, 2005.

6
 Steiner argues that he did not know about the Moratorium

until after its enactment, and that Krempasky specifically was

directed by the County’s attorney not to tell him about it

unless asked. Instead, the County’s attorney advised Krempasky

that she should send Steiner a letter informing him of the

Moratorium.

Krempasky wrote Steiner a letter, dated April 22, 2005,

which notified him that the Moratorium had been adopted and

provided him a copy. However, Steiner had learned the day

before from his realtor that the Moratorium had been enacted.

Krempasky’s letter also notified Steiner that the Special Use

Exception application could not be processed because it was

incomplete in many respects, but that the Moratorium “prohibits

the location of an adult oriented business at the site you have

proposed” but “there are a number of locations in Caroline

County where an adult oriented business may be located.” J.A.

2139-40.

The Ordinance, the permanent amendment to the County’s

zoning ordinance, was enacted by the County Commissioners on

September 17, 2005, and provides that an AOB can only be located

in the I-2 (light industrial) zoning district. 2 The Ordinance

2
The Ordinance and Moratorium differed in the designated
zoning districts where AOBs could locate. The Moratorium did
not permit locating in an I-2 district, but permitted AOBs in a
(Continued)
7
also contains setback requirements for AOBs which must be at

least 1200 feet from “the closest boundary of a parcel

containing a school, place of worship, park or recreation

facility, day care center, family or day care center, [or]

group,” 600 feet from “the boundary of any parcel in a

residential zoning district,” 1200 feet from “the closest

portion of any other building or structure containing an adult

oriented business,” and 1200 feet from “the closest portion of

any building or structure where alcoholic beverages are sold for

on-premises consumption.” J.A. 79.

The preamble to the Ordinance states the County’s goals and

intent in enacting the Ordinance, particularly that the County

is “concerned with the potential adverse secondary effects of

adult oriented businesses” and noting the numerous “studies

prepared by or for other local governments and in reported

opinions in the various jurisdictions of the United States

[that] provide pertinent information about the adverse secondary

effects . . . .” J.A. 70. The preamble further states that the

“[i]ntent and [p]urpose” of the County was to draft the

ordinance “as a content neutral time, place and manner

restriction[] designed to minimize the harmful secondary effects

C-1 (neighborhood commercial) or C-2 (general commercial)
district.

8
associated with Adult Oriented Businesses while providing and

preserving reasonable alternative channels of communication for

those interested in engaging in adult oriented communication

protected by the federal and State constitutions.” J.A. 75.

B.

On October 24, 2005, Steiner filed a complaint against the

County Commissioners in the United States District Court for the

District of Maryland, alleging that the Enactments violated his

First Amendment rights, and seeking damages and injunctive and

declaratory relief. The district court granted summary judgment

to the County Commissioners, holding that the Enactments were

content-neutral time, place, and manner regulations, served a

substantial government interest, and allowed for reasonable

alternative avenues of communication.

On appeal, Steiner first argues that the district court

used the incorrect standard of scrutiny to review the

Enactments. 3 While facially neutral ordinances are typically

3
The County Commissioners initially argue that Steiner’s
challenge to the Moratorium is moot because it is “no longer in
effect and has not been in effect since 2005.” Br. of Appellee
14. The district court rejected this argument, ruling that
“[a]s Steiner has alleged a continuing injury caused by the
Moratorium, his challenge is not moot.” J.A. 44. We agree with
the district court. If Steiner were to succeed on appeal, he
could have a claim for damages resulting from the enactment of
the Moratorium, which prevented him from establishing a lawful
(Continued)
9
evaluated under the intermediate scrutiny standard, Steiner

contends the Enactments should have been evaluated under the

standard of strict scrutiny because the predominant intent of

the Enactments was to limit expression, and not to limit the

negative secondary effects of AOBs. Alternatively, Steiner

contends that even if the intermediate standard of scrutiny is

applied, the County’s evidence does not fairly and reasonably

support its rationale of prohibiting AOBs in rural and

agricultural areas, and thus does not pass constitutional

muster. Lastly, Steiner argues that a fact finder could decide

that the Enactments do not leave reasonable alternative means of

expression for AOBs available in the County.

On appeal, this Court reviews a district court’s grant of

summary judgment de novo. Nguyen v. CNA Corp., 44 F.3d 234, 236

(4th Cir. 1995). Steiner filed a timely notice of appeal and we

have jurisdiction pursuant to 28 U.S.C. § 1291.

non-conforming use prior to the enactment of the Ordinance. See
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
438 n. 7 (1985) (holding that, because Plaintiff requested
damages, the claim in that case was not moot even though the
relevant regulation had been subsequently changed); Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005)
(“[T]he existence of a damages claim ensures that this dispute
is a live one and one over which Article III gives us continuing
authority.”); Jersey Cent. Power & Light Co. v. State of NJ, 772
F.2d 35, 41 (3d Cir. 1985) (“[T]he availability of damages or
other monetary relief almost always avoids mootness.”).

10
 II.

A.

The level of scrutiny a court applies to a legislative

enactment in a First Amendment analysis depends on whether the

statute is deemed content-based or content-neutral. A content-

based statute “would be considered presumptively invalid and

subject to strict scrutiny.” City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425, 434 (2002). However, a content-

neutral statute is “properly analyzed . . . as a time, place,

and manner regulation” and receives intermediate scrutiny. Id.

Steiner argues that the district court erred in evaluating

the Enactments under an intermediate scrutiny standard. Even

though Steiner acknowledges the Enactments are content-neutral

on their face, he claims that is a pretext, see Reply Br. of

Appellant 13, and the predominant intent of the County

Commissioners was to limit expression and not the limitation of

the harmful secondary effects of AOBs. As evidence to support

this contention, Steiner points to e-mails and communications

that he claims show that his applications to facilitate the use

of The 19th Hole as an AOB were intentionally delayed so the

Moratorium could be passed, and that the County Commissioners

sought to effectively ban AOBs through the Enactments. The

County Commissioners respond that they intended to “enact a

content neutral ordinance” and that “[i]t is not the intent of

11
the County Commissioners to suppress any speech protected by the

First Amendment to the United States Constitution . . . .” J.A.

75.

The district court held that, because the Enactments

restricted AOBs to specific areas, similar to the regulatory

method in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986), the Enactments “are properly analyzed as [] form[s] of

time, place, and manner regulation[s].” J.A. 45. The district

court also disagreed with Steiner’s predominant intent argument,

determining that “[n]o reasonable fact finder could find that

the predominate [sic] concern of the Commissioners was to

restrain the form of expression to be shown at AOBs on the basis

of its content. Accordingly, the Zoning Enactments will be

subjected to intermediate scrutiny . . . .” J.A. 50. We find

no error in the district court’s application of intermediate

scrutiny.

A statute or other regulatory enactment, such as the

Enactments at issue in this case, may treat AOBs differently

from other entities so long as the ordinance is not aimed at the

content of the AOBs but instead enacted to limit their harmful

secondary effects. Renton, 475 U.S. at 47. “Such measures . . .

regulate expression only incidentally, because the expression

‘happen[s] to be associated’ with the adverse effects the state

seeks to address.” Giovani Carandola, Ltd. v. Bason, 303 F.3d

12
507, 513 (4th Cir. 2002) (quoting Boos v. Barry, 485 U.S. 312,

320 (1988)). Moreover, the Supreme Court has further held that

a facially neutral ordinance that does “not ban adult theaters

altogether” is “properly analyzed . . . as a time, place, and

manner regulation.” Alameda Books, 535 U.S. at 434. Such

“content-neutral” regulations are not subject to strict scrutiny

and “are acceptable so long as they are designed to serve a

substantial governmental interest and do not unreasonably limit

alternative avenues of communication.” Renton, 475 U.S. at 47.

Nonetheless, an ordinance may still be subject to strict

scrutiny if, regardless of its facial neutrality, the

predominant intent of law-makers in enacting the regulation was

to limit expression and not to limit harmful secondary effects.

See id. at 48. It would be erroneous, however, to read

“predominant intent” as merely a motivating factor in a

legislative enactment. See id. at 47.

In Renton, the Supreme Court reversed the holding of the

Ninth Circuit that if a “motivating factor” in the adoption of

an ordinance was to restrict speech, that factor alone was

sufficient to invalidate the ordinance. Id. at 47-48. Instead,

as we explained in Carandola, a legislative provision is

constitutionally valid if “one purpose of [an ordinance] is to

address the secondary effects that follow from lewd conduct . .

., and that hostility to erotic expression, if a purpose of the

13
restrictions at all, does not constitute the predominant

purpose.” Carandola, 303 F.3d at 515. This is because “[w]hat

motivates one legislator to make a speech about a statute is not

necessarily what motivates scores of others to enact it, and the

stakes are sufficiently high for us to eschew guesswork.”

Renton, 475 U.S. at 48 (internal citations omitted).

Accordingly, a court “will not strike down an otherwise

constitutional statute on the basis of an alleged illicit

legislative motive.” Id. at 48 (internal citations omitted).

In Renton, as evidence in support of the contention that

the predominant intent of law-makers was not to suppress speech,

the Court noted that the ordinance at issue did not restrict the

number of AOBs, but instead only limited their location to

certain areas. The Court reasoned that if the city’s

predominant intent were to suppress the message conveyed by

AOBs, the city would have sought to restrict their number,

rather than restrict their possible locations. Id. at 48.

Similarly, in the case at bar, the Commissioners did not attempt

to ban all AOBs through the Enactments. Indeed, the County’s

attorney explicitly advised that it “was unwise to completely

ban adult oriented business . . . because such a ban probably

would be construed as an unconstitutional prior restraint of

protected speech.” J.A. 2368. Instead, the County Commissioners

limited AOBs to certain zoning districts and instituted setback

14
rules in relation to other specific uses, such as residences and

schools.

The Enactments state in detail their purpose in limiting

the negative secondary effects of AOBs. This statement of

legislative intent parallels the recognition by the Renton Court

that “[t]he ordinance by its terms is designed to [limit

negative secondary effects].” Renton, 475 U.S. at 48 (emphasis

added). The Moratorium states that it is being enacted in

response to the “significant . . . secondary effects issues

surrounding or arising from the location and operation of

[AOBs].” J.A. 65. The Ordinance states that the County

“developed the textual amendments in this Ordinance as content

neutral time, place and manner restrictions designed to minimize

the harmful secondary effects associated with Adult Oriented

Businesses . . . .” J.A. 75; see Abilene Retail No. 30, Inc. v.

Bd. of Comm’rs of Dickinson County, Kan, 492 F.3d 1164, 1173

(10th Cir. 2007) (citing a similar preamble as evidence that

“the Board’s predominant purpose in enacting [the ordinance] was

to regulate the secondary effects of adult businesses”).

The Ordinance also recites a number of the negative

secondary effects: the risk that AOBs “take advantage of

underage persons,” “increase the spread and the rate of . . .

sexually transmitted diseases,” “lead to the proliferation of”

crime, “devalue surrounding residential and commercial

15
properties,” and drive “away legitimate . . . community

members.” J.A. 74-75. In Carandola, we held that even though

the North Carolina Alcohol Beverage Control Commission did not

proffer “a single study of secondary effects,” and neither “the

statute nor the Rule include[] a preamble or any other language

clearly stating a desire to address secondary effects,”

precedent nonetheless “requires us to evaluate the challenged

restrictions as content-neutral provisions aimed at secondary

effects.” Carandola, 303 F.3d at 514. Here, the Ordinance made

extensive reference to a number of studies from across the

United States that establish the harmful secondary effects of

AOBs.

It is evident from the plain language of the Enactments,

the studies proffered in the Ordinance, and the fact that AOBs

are not banned under the Enactments, that the predominant intent

of the County Commissioners was not primarily to suppress

speech. By focusing on the harmful secondary effects, the

Enactments are “justified without reference to the content of

the regulated speech.” Renton, 475 U.S. at 48 (internal

quotation and citation omitted). We therefore agree with the

district court that the Enactments are properly reviewed as

content-neutral and are to be analyzed under an intermediate

scrutiny standard.

16
 B.

Having determined that the district court correctly decided

that intermediate scrutiny was the proper standard of review, we

next undertake to determine whether the zoning scheme of the

Enactments satisfies that standard. That is to say, we examine

whether the Enactments are “designed to serve a substantial

governmental interest and allow[] for reasonable alternative

avenues of communication.” Renton, 475 U.S. at 50.

With regard to the substantial government interest prong,

Steiner does not contest that preventing the proven harmful

secondary effects of AOBs is a substantial governmental

interest. Id. at 48; see also Carandola, 303 F.3d at 516.

Instead, Steiner argues that the secondary effects studies

relied on by the County failed to establish those effects in

rural counties as opposed to more urban areas. Steiner also

argues that “a reasonable jury could conclude that the County’s

evidence does not fairly and reasonably support its rationale of

prohibiting AOBs in rural and agricultural areas and restricting

them to areas immediately next to the County’s population

centers in proximity to clusters of residences, schools,

churches and parks.” Br. of Appellant 42-50. Specifically,

Steiner contends that because the studies cited by the County

generally showed that AOBs should be kept separate from

residential areas, it was irrational for the County to allow

17
them in zoning districts near residential areas, and thus the

County did not actually rely on the cited studies: “[a]

reasonable jury could conclude that the County’s rationale is

based on ‘shoddy . . . reasoning,’ if not a lack of common

sense.” Id. at 47 (quoting Alameda Books, 535 U.S. at 438—39).

Citing Carandola, the district court held

the Commissioners may rely on the evidentiary
foundation established in Renton to conclude that nude
dancing “is likely to produce the same secondary
effects in [Caroline County] unless the plaintiff
produces clear and convincing evidence to the
contrary.” Moreover, the Commissioners were entitled
to rely on the experiences and findings of other
cities. As Steiner has not offered evidence
suggesting that an AOB would not have those effects in
Caroline County, nothing in the record controverts the
evidence upon which the Commissioners relied.
Accordingly, the Commissioners have a substantial
interest in controlling the secondary effects of AOBs.

J.A. 50-51 (quoting Carandola, 303 F.3d at 516) (internal

citations omitted).

The district court thus rejected Steiner’s contention that

the County’s evidence, particularly the secondary effects

studies, failed to establish the necessary foundation of

possible harmful effects by AOBs in the County. The district

court concluded that “it is clear from the evidence that the

Commissioners designed the Zoning Enactments to combat the

secondary effects . . . .” J.A. 51.

The district court also rejected Steiner’s contention that

the zoning choices made in the Enactments by the County

18
Commissioners invalidated the Enactments. The district court

found that “the Commissioners could have chosen to disperse or

concentrate AOBs” and that “‘[i]t is not [the court’s] function

to appraise the wisdom of [the Commissioners’] decision’ as to

the exact methods of regulation.” J.A. 51 (quoting Renton, 475

U.S. at 52). The district court concluded that “no reasonable

fact finder could find that the Zoning Enactments do not serve

the substantial governmental interest in controlling the

secondary effects of AOBs.” J.A. 51.

As to the contention by Steiner that the Enactments did

“not provide for adequate alternative avenues of expression,”

Br. of Appellant 51, the district court noted that “Steiner does

not directly challenge the reasonableness of the overall

quantity of land available; instead Steiner argues that an

unreasonably small amount of land is left for AOBs once setbacks

and other considerations are considered.” J.A. 52. Citing the

example of available locations in Renton and the record evidence

of available AOB locations under the Enactments, the district

court held that “no reasonable fact finder could find that the

Zoning Enactments fail to allow reasonable alternative avenues

of communication.” J.A. 55.

We find no error in the district court’s judgment.

19
 1.

a.

The County introduced into evidence hundreds of pages of

studies conducted in many different localities across the United

States, which were considered by the County Commissioners in the

process of adopting the Ordinance. 4 These studies are cited in

the preamble to the Ordinance, and were before the Commissioners

in formulating the Ordinance. The studies come to essentially

the same conclusions about the negative secondary effects of

AOBs, finding an increase in crime, a decrease in nearby housing

values, and an increase in perceived danger by residents. The

negative secondary effects of AOBs are plain based on these

studies in the record.

To minimize the negative effects of AOBs, the studies

recommend many similar courses of action, including setbacks,

dispersion of AOBs, and requiring that AOBs be located in

certain types of zones. Because nearly every study reaches the

4
The studies included those from Manatee County, Florida,
Minneapolis, St. Paul, Las Vegas, Cattaraugus County, New York,
the Town of Islip, New York, New York, New York, New Hanover
County, North Carolina, the City of Austin, Texas, Hamilton
County, Tennessee, Amarillo, Texas, the City of Beaumont, Texas,
Dallas, Texas, El Paso, Texas, Houston, Texas, Newport News,
Virginia, City of Bellevue, Washington, Des Moines, Iowa,
Seattle, Washington, and St. Croix County, Wisconsin.

20
same conclusion about setbacks, 5 there is support in the record

for the principle that setbacks are necessary between AOBs and

other AOBs and between AOBs and certain uses, such as churches,

schools, and parks. Some of the studies concluded that AOBs

should be dispersed throughout a community, 6 while other studies

recommend that AOBs be located in industrial, light-industrial,

5
The St. Paul study provided for setbacks between AOBs and
residential zones and “protected uses” such as schools,
churches, libraries, and the like. The Cattaraugas County study
concluded that there should be a “safe buffer” between AOBs and
the “most sensitive land uses, such as residences, churches,
schools, historic resources and the central business district.”
J.A. 881. The City of Beaumont study found that AOBs should not
be within 500 feet of the boundary line of a residential
district, that they should not be within 300 feet of another
AOB, and that an AOB should not be within 1000 of a church,
school, public park, or other recreational facility. The
proposed Newport News, Virginia, ordinance required that there
be a 500 foot setback between AOBs and schools, churches, parks,
playgrounds, libraries, or other AOBs.
6
The Bellevue study found that multiple approaches could be
used with success, including dispersion approaches,
concentration approaches, modified dispersion/concentration
approaches, and “special” approaches. J.A. 1577-78.

Alternatively, the St. Paul study recommended that there
should be “an increase in the spacing between [AOBs] to minimize
the danger that a cluster of [AOBs] could develop in a single
part of the city.” J.A. 774. The Cattaraugas County study
concluded that the “common regulatory response to mitigate the
possible negative effects” is to ensure that AOBs are dispersed
from one another. J.A. 881. The New Hanover County study found
that the “best zoning approach is dispersal” of AOBs. J.A. 1119.
The Austin study found that AOBs should be “dispersed to avoid
the over concentration of such business.” J.A. 1156. The Des
Moines and St. Croix studies also recommended that AOBs be
dispersed.

21
or commercial zones and that some sort of permit process be

required. 7

b.

The County followed many of the studies’ findings in

crafting the Enactments. The Ordinance limits the location of

AOBs to I-2 zones, which are the County’s “light industrial”

districts. The Moratorium limited AOBs to certain commercial

zoning districts, C-1 and C-2. The Moratorium also imposed a

setback provision, which requires that an AOB be 1000 feet from

a major highway, 2000 feet from a school, 400 feet from a place

of worship, and 400 feet from a residence. The setback

provisions in the Ordinance require that an AOB be 1200 feet

7
The Cattaraugas County study concluded that AOBs should be
located in industrial and light-industrial zones. The
Minneapolis study found that municipalities “should avoid
locating sex businesses in residential areas” and that AOBs
should be “permitted only in locations that are at least 1/10 of
a mile from residential areas (about 500 feet).” J.A. 721-22.
AOBs should be “located in large commercial zones in various
parts of [a municipality]” because it is the commercial area of
a municipality is where assaults and street robberies already
tend to occur. J.A. 724. The New Hanover County study found
that AOBs should be limited to “commercial and/or industrial
zones” or by a Special Use Permit or licensing process. J.A.
1119-20. The Austin study found that AOBs should be “limited
to highway or regionally-oriented zone districts,” and that
conditional use permits should be required. J.A. 1156. The
Amarillo study recommended that a permit and license mechanism
should be developed. The proposed Newport News ordinance
required that AOBs be limited to Commercial and Business
District zones, and that conditional use permits be required.
The St. Croix study recommended that AOBs be located in
commercial zones, and have licensing requirements.

22
from “the closest boundary of a parcel containing a school,

place of worship, park or recreation facility, day care center,

family or day care center, group.” J.A. 79. It also requires

that the an AOB “shall not be within [600] feet of the boundary

of any parcel in a residential zoning district,” and that an AOB

“shall be at least [1200] feet” from another AOB or a building

“where alcoholic beverages are sold for on-premises

consumption.” J.A. 79-80.

The vast majority of the studies institute some sort of

setback scheme, which the County obviously followed. Clearly,

the County had some reliance on the studies for the proposition

that setbacks are necessary between AOBs and other types of

protected uses.

The County also appeared to rely on the studies’

conclusions that AOBs should be located in commercial or

industrial zones, not residential zones, as the plain terms of

the Enactments reflect. With regard to the Ordinance, the

County argues that it “decided that it could best deal with the

problem of adverse secondary effects of adult businesses by

locating the adult businesses in the I-2 zone (where residences

have never been permitted), near the towns, but with setbacks to

keep them reasonably separated from churches, schools, parks,

23
and residences.” Br. of Appellee 43-44. 8 In recommending AOBs be

restricted to the I-2 zone, the Planning Commission specifically

noted the rationale for that zoning choice, which was later

adopted by the County Commission through the Ordinance:

[T]he adverse secondary affects [sic] based on the
studies . . . are most closely related to where there
are existing residences and community facilities, such
as churches, schools, etcetera. And the I-2 Zoning
District does not allow new dwelling units by right.
Any new dwelling unit has to be permitted only by
Special Use Exception there. [T]hat zoning district
was designed to preclude residential developments.
Where as our Commercial Zoning Districts allow
residential dwelling units by right. . . . And
therefore, the . . . negative affect [sic] on property
values . . . is actually . . . greater in Commercial
Districts. So . . . the setbacks that have been
established in the Draft Regulations can be more
easily complied with in the . . . I-2 Zone.

J.A. 1979-80. Preventing AOBs from being adjacent to all

residential uses could not be achieved except in an I-2 zone,

the “only zoning district in which residences have never been

permitted . . . .” Br. of Appellee 42.

Thus, the Enactments reflect the County’s choice of zoning

districts for AOBs to be in line with the vast majority of the

8
It is worth noting that the County’s change of zoning
district from C-1, C-2 under the Moratorium to I-2 under the
Ordinance is a rational choice. If for no other reason, the I-2
selection in the Ordinance could be said to lessen the
likelihood of residential factors affecting AOBs since the I-2
district prohibits residential development, but the C-1 and C-2
districts do not.

24
study recommendations for AOB zoning. Locating AOBs in an

industrial zone, like the County’s I-2, particularly where

residential development is prohibited, appears to be a reasoned

determination. That the locality is rural and not urban would

seem irrelevant as the primary distinguishing factor is the type

of zoning district, which would be the same whether it was I-2

in a rural county or I-2 in an urban area. Further, it is the

activity being regulated, AOBs, that drive the restrictions

regardless of the rural, urban, or suburban nature of the local

government. We noted this general point in Carandola, that it

is the AOB activity which produces the secondary effects,

regardless of where that may be:

where “nude dancing . . . is of the same character as
the adult entertainment at issue in Renton, Young v.
American Mini Theatres, Inc., and California v.
LaRue,” a governmental entity may rely on the
“evidentiary foundation” set forth in those cases to
“conclude that such nude dancing [i]s likely to
produce the same secondary effects” in its
jurisdiction unless the plaintiff produces clear and
convincing evidence to the contrary.

Carandola, 303 F.3d at 516 (quoting City of Erie v. Pap’s A.M.,

529 U.S. 277, 296-97 (2000)).

The Enactments thus adopt many of the standard measures

used by other localities to minimize the adverse secondary

effects of AOBs. See, e.g., Renton, 475 U.S. 43 (affirming

ordinance requiring 1000-foot setbacks); Young v. American Mini

Theatres, Inc., 427 U.S. 50, 62 (1976) (upholding validity of

25
ordinance that utilized 1000-foot setbacks between AOBs, and

500-foot setbacks between an AOB and a residential area);

Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 151

(4th Cir. 2009) (upholding validity of ordinance that limited

AOBs to business, “mixed use,” and industrial zones and

instituted setbacks).

We thus conclude that Steiner’s argument that the County

improperly relied on the studies because they were mostly from

urban, rather than rural, environments is without merit.

Moreover, the Renton Court responded to an analogous argument

from the AOB operator in that case, namely that the Renton

ordinance improperly relied on studies generated by other

municipalities that did not relate to “the particular problems

or needs of Renton.” Renton, 475 U.S. at 50 (internal citations

omitted). The Court held that “Renton was entitled to rely on

the experiences of . . . other cities” because

[t]he First Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated
by other cities, so long as whatever evidence the city
relies upon is reasonably believed to be relevant to
the problem that the city addresses.

Id. at 51-52.

For the foregoing reasons, we find no merit in Steiner’s

arguments that the Enactments do not serve a substantial

government purpose either because the secondary effects studies

26
were primarily from urban areas or the County’s choice of zoning

districts for AOBs raised some type of constitutional

deficiency.

c.

While we find no merit in the substance of Steiner’s

arguments, it is also important to note that court oversight of

the legislative choices by local governments regulating AOBs is

limited. The Supreme Court has held that municipalities should

be given a certain amount of discretion in determining a zoning

scheme regulating AOBs, “specifically refus[ing] to set . . . a

high bar for municipalities that want to address merely the

secondary effects of protected speech.” Alameda Books, 535 U.S.

at 438 (citing Renton, 475 U.S. at 51-52. Although “[t]he

municipality’s evidence must fairly support the municipality’s

rationale for its ordinance,” Alameda Books, 535 U.S. at 438,

the municipality need not demonstrate “with empirical data . . .

that its ordinance will successfully lower crime. . . . Such a

requirement would go too far in undermining our settled position

that municipalities must be given a ‘reasonable opportunity to

experiment with solutions’ to address the secondary effects of

protected speech.” Id. at 439 (quoting Renton, 475 U.S. at 52).

This deference to a municipality’s proposed zoning plan “is

the product of a careful balance between competing interests.

On the one hand, [a court has] an obligation to exercise

27
independent judgment when First Amendment rights are implicated.

. . . On the other hand, [a court] must acknowledge that [a

municipality] is in a better position than the judiciary to

gather and evaluate data on local problems.” Alameda Books, 535

U.S. at 440 (internal quotations and citations omitted).

The County did adopt commonly approved AOB limitation

measures such as the zoning concentration and setbacks from

protected uses, as described above. That the Commissioners

chose to preserve more rural environments and concentrate AOBs

in industrial zones closer to the towns was a decision within

their legislative discretion. The district court thus also

properly rejected Steiner’s argument for the reasons it cited

from Renton. “It is not our function to appraise the wisdom of

the city’s decision . . . . The city must be allowed a

reasonable opportunity to experiment with solutions to

admittedly serious problems.” Renton, 475 U.S. at 52 (quoting

American Mini Theatres, 427 U.S. at 71).

Because the County is in a better position to determine

solutions to possible negative secondary effects, and because a

certain amount of deference is owed to those solutions, it is

not for this Court to second-guess the County’s rationale. The

district court thus did not err in rejecting Steiner’s argument.

28
 2.

Finally, Steiner contends that the Enactments are

unconstitutional because they do not provide for adequate

alternative avenues of expression. He asserts that “[t]he

evidence showed that the sites proffered by the County were

unavailable because they lacked infrastructure and would require

Steiner to develop and subdivide quantities of land far larger

than a generic commercial user would reasonably be expected to

bear in the real estate market.” Br. of Appellant 55. Steiner’s

expert testified that a developer would have to “expend an

unreasonable amount of money” in order to open an AOB on the

available sites in the County. J.A. 2084.

The district court held that “to demonstrate a genuine

issue of material fact Steiner must present evidence

demonstrating that the land is actually unavailable, not that

the land available is simply economically undesirable.” J.A. 53.

Ultimately, the district court held that “[d]isregarding his

elimination of sites under the Moratorium and the Ordinance for

economic reasons, Steiner’s expert has identified reasonable

alternatives given that Steiner is the only AOB operator seeking

to enter Caroline County.” J.A. 55. Therefore, “no reasonable

fact finder could find that the Zoning Enactments fail to allow

reasonable alternative avenues of communication.” J.A. 55. We

agree.

29
 The First Amendment requires that an ordinance “allow[] for

reasonable alternative avenues of communication.” Renton, 475

U.S. at 50. However, the Renton Court emphasized that “the

First Amendment requires only that [the municipality] refrain

from effectively denying respondents a reasonable opportunity to

open and operate an [AOB].” Id. at 54. “That respondents must

fend for themselves in the real estate market, on an equal

footing with other prospective purchasers . . . does not give

rise to a First Amendment violation.” Id. A plaintiff must show

something greater than mere inconvenience or economic

undesirability. “[W]e have never suggested that the First

Amendment compels the Government to ensure that adult theaters .

. . will be able to obtain sites at bargain prices.” Id.

While the Court in Renton did not prescribe a specific

number or percentage of available sites, it did hold in that

case that five percent of the land of Renton was available to

AOBs, and that this amount was “ample” and constituted a

“reasonable opportunity to open and operate” an AOB. Id. at 53-

54. Although in this case the record does not reflect the exact

percentage of available land open to AOBs, the County

demonstrated multiple sites which met the requirements of the

Moratorium and the Ordinance.

Steiner’s expert argues that twelve of these sites are not

feasible because they are “undeveloped and essentially raw land”

30
or have existing uses. J.A. 2084. However, these arguments

mirror the unsuccessful arguments of the plaintiffs in Renton,

who contended that the land was already occupied by existing

businesses, that “practically none” of the land was currently

for sale or lease, and that the sites were not “commercially

viable.” Renton, 475 U.S. at 53. The record supports the

district court’s finding that there were a number of AOB sites

available to Steiner. The fact that Steiner may not have

desired to pay fair market value or develop the sites is not

proof of a lack of available alternate sites. Steiner’s

preference for siting an AOB at The 19th Hole bears no nexus to

whether there are adequate alternative avenues of expression.

Therefore, the district court did not err in determining

that the Enactments did not eliminate alternate avenues for

expression by AOBs.

III.

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

31