WISE ENTERPRISES, INC., Crase, Inc. d.b.a. Chelsea's, Mardi Gras, Inc. d.b.a. Toppers International
Showbar, et al., Plaintiffs-Appellants,
v.
UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY, GEORGIA, John S. Culpepper, III,
Director of Finance for the Unified Government of Athens-Clarke County, Defendants-Appellees.
No. 99-8265.
United States Court of Appeals,
Eleventh Circuit.
July 13, 2000.
Appeal from the United States District Court for the Middle District of Georgia. (No. 97-00129-3-CV-DF),
Duross Fitzpatrick, Judge.
Before ANDERSON, Chief Judge, and BLACK and HALL*, Circuit Judges.
BLACK, Circuit Judge:
Appellants Wise Enterprises, Inc., Crase, Inc., Mardi Gras, Inc., and Sandra Gardner appeal the
district court's order granting summary judgment to Appellees Unified Government of Athens-Clarke County
("the County") and John S. Culpepper III, the Director of Finance for the County. Appellants claim the
district court erred in concluding the County's Adult Entertainment Ordinance did not violate Appellants' First
Amendment rights. We affirm.
I. BACKGROUND
Appellants have operated adult entertainment establishments in Athens-Clarke County since 1992.
Appellants' establishments feature nude barroom dancing contemporaneous with the serving of alcoholic
beverages. On November 4, 1997, the County amended Title 6 of its code by adopting an Adult
Entertainment Ordinance ("the ordinance"). The ordinance provides that a license is required for the
operation of an adult entertainment establishment, and that no such license shall be issued to businesses
operating in the Central Business District, a zoning district set out in the zoning ordinances of the County.
See Athens-Clarke County Code § 6-11-9(d) (1997). The ordinance further prohibits the holder of an adult
*
Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
entertainment establishment license from serving, selling, distributing, or permitting the consumption or
possession of alcohol or controlled substances on its premises. See id. § 6-11-21 (1997).
Approximately one month after the enactment of the ordinance, Appellant Crase simultaneously
submitted to the County's finance department a renewal application for its alcoholic beverage license and an
application for an adult entertainment establishment license. In response, Appellee Culpepper sent Crase a
letter stating it could not legally be licensed both to sell alcoholic beverages and to offer adult entertainment
at the same location. The letter advised Crase that if it wanted to obtain an adult entertainment establishment
license, it would have to withdraw its renewal application for an alcoholic beverage license.
Appellant Mardi Gras also was rejected in its attempt to obtain an adult entertainment establishment
license. The letter Mardi Gras received from Appellee Culpepper indicated that Mardi Gras did not qualify
for an adult entertainment establishment license because its establishment was located in the Central Business
District. Appellants consequently filed an action challenging the validity of the County's ordinance. The
County moved for summary judgment, and the district court granted its motion. This appeal followed.
II. DISCUSSION
Appellants contend the district court erred in granting summary judgment to Appellees. They argue
the section of the ordinance prohibiting them from serving alcohol and providing adult entertainment at the
same location violates their rights under the First Amendment of the United States Constitution. Appellant
Mardi Gras also challenges the portion of the ordinance that precludes adult entertainment establishments
from being located in the Central Business District.
We review a district court's grant of summary judgment de novo, applying the same standards as the
district court. See Harris v. H&W Contracting Co., 102 F.3d 516, 518 (11th Cir.1996). We will affirm the
district court if the record demonstrates there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. See Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564
(11th Cir.1990).
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A. Restriction On Establishments That Serve Alcohol
Relying heavily on the dissenting opinion in Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993
(11th Cir.1998), cert. denied, --- U.S. ----, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000), Appellants contend the
section of the County's ordinance that prohibits them from serving alcohol and providing adult entertainment
at the same location is a regulation of protected expression. Appellants argue heightened scrutiny should be
applied to the County's ordinance rather than the intermediate scrutiny test articulated by the Supreme Court
in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Appellants' argument fails
in light of established precedent of this Court and the Supreme Court's recent decision in City of Erie v. Pap's
A.M., --- U.S. ----, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).
In Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir.1998), cert. denied, --- U.S.
----, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000), and Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th
Cir.1982), we upheld against constitutional attack ordinances similar to the one challenged by Appellants.
The ordinances were content-neutral and thus properly analyzed under the O'Brien intermediate level of
scrutiny. See Sammy's, 140 F.3d at 996; Grand Faloon, 670 F.2d at 947. The O'Brien standard applies
"when a governmental entity seeks to regulate non-communicative elements of an activity and thereby
imposes incidental burdens on protected expression." Grand Faloon, 670 F.2d at 947 (citing O'Brien, 391
U.S. at 376, 88 S.Ct. at 1678-79). Ordinances that prohibit nude dancing where alcohol is served or
consumed are "independent of expressive or communicative elements of conduct," and thus are
content-neutral. Grand Faloon, 670 F.2d at 947. Like the ordinances discussed in Sammy's and Grand
Faloon, the County's ordinance is a content-neutral ordinance. It "restricts only the place or manner of nude
dancing without regulating any particular message it might convey." Sammy's, 140 F.3d at 998. The
ordinance does not attempt to regulate any potential communicative elements of nude dancing, nor does it
limit the number of establishments where nude dancing can occur.
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The Supreme Court's recent decision in City of Erie v. Pap's A.M., --- U.S. ----, 120 S.Ct. 1382, 146
L.Ed.2d 265 (2000), further mandates that we conclude the County's ordinance to be content-neutral. In
Pap's, the Supreme Court held that the city's ordinance prohibiting public nudity, as applied to nude dancing,
should be analyzed under the O'Brien test because the ordinance was aimed not at suppressing the message
conveyed by nude dancing, but rather at the secondary effects caused by public nudity in general and by adult
entertainment establishments in particular. See Pap's, 120 S.Ct. at 1391-1394. The Court reasoned that a
regulation which furthers legitimate government interests unrelated to the message conveyed by nude dancing
should be deemed content-neutral, even if the regulation has an incidental impact on protected expression.
See id. at 1394-95.
In this case, the preamble to the County's ordinance provides:
[I]t is the finding of the Mayor and Chair and Commission that public nudity ... under certain
circumstances, particularly circumstances related to the sale and consumption of alcoholic beverages
... begets criminal behavior and tends to create undesirable community conditions. Among the
undesirable conditions identified with nudity and alcohol are depression of property values in the
surrounding neighborhood, increased expenditure for the allocation of law enforcement personnel
to preserve law and order, increased burden on the judicial system as a consequence of the criminal
behavior ... and acceleration of community blight by the concentration of such establishments in
particular areas. Therefore, the limitation of nude conduct in establishments licensed to sell alcohol
for consumption on the premises is in the public welfare and it is a matter of governmental interest
and concern to prevent the occurrence of criminal behavior and undesirable community conditions
normally associated with establishments which serve alcohol and also allow and/or encourage nudity.
Athens-Clarke County Code § 6-11 (1997). The ordinance also states that its purpose is to protect the public's
health, safety and welfare. See id. It is clear from these statements the County's ordinance is aimed at the
secondary effects of nude dancing combined with the consumption of alcoholic beverages, not at the message
conveyed by nude dancing. We therefore hold the district court was correct in using the intermediate scrutiny
test set forth in O'Brien.
Under O'Brien, an ordinance is valid if: (1) it serves a substantial interest within the power of the
government; (2) the ordinance furthers that interest; (3) the interest served is unrelated to the suppression
of free expression; and (4) there is no less restrictive alternative. See O'Brien, 391 U.S. at 377, 88 S.Ct. at
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1679. The County's stated interests in this ordinance are protecting the public welfare, preventing undesirable
community conditions including the depression of property values, and reducing criminal behavior. Such
interests are substantial government interests that satisfy the first part of the O'Brien test. See, e.g., Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) (concluding the
government has a substantial government interest in "protecting order and morality,"); Grand Faloon, 670
F.2d at 949 (noting "[t]he regulation of activity which has demonstrated a capacity to induce breaches of the
peace is a traditional and legitimate subject for the exercise of a municipality's police power.").
The second prong of the O'Brien test mandates the challenged regulation further the government's
interests. See O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. For the County to meet its burden under this
element, it must have "some factual basis for the claim that [adult] entertainment in establishments serving
alcoholic beverages results in increased criminal activity." Grand Faloon, 670 F.2d at 949 (emphasis in
original). The statements contained in the preamble and the minutes of the county commission meeting at
which the ordinance was adopted indicate the County's enactment of the ordinance was based upon the
experiences of other urban counties and municipalities, copies of studies from other jurisdictions examining
the problems associated with public nudity in conjunction with the sale of alcohol, and a review of
information received by the Athens-Clarke County Police Department detailing police visits to adult
entertainment establishments in the County. The record thus demonstrates the County had a reasonable basis
for believing the ordinance would sufficiently further its interests. See Sammy's, 140 F.3d at 997.
Under the third prong of the O'Brien test, the government interests must be unrelated to the
suppression of free expression. See O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. There is no evidence in the
record that the County passed the ordinance to discourage nude dancing or to hinder the communicative
aspects of such conduct. Rather, the ordinance focuses on the secondary effects of combining nude dancing
and alcohol consumption. The County was "attempting only to regulate the sale of alcohol in inappropriate
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places and it has determined that it is inappropriately sold in places where nude dancing is offered." Sammy's,
140 F.3d at 998. Such a regulation is unrelated to the suppression of free expression.
The fourth prong of the O'Brien test requires that the incidental restriction on First Amendment rights
be no greater than necessary to the furtherance of the government interests. See O'Brien, 391 U.S. at 377,
88 S.Ct. at 1679. The ordinance satisfies this requirement because it is narrowly tailored to the problem
targeted by the County—the undesirable community conditions associated with establishments that combine
alcohol and nude dancing. There is no less restrictive alternative. The ordinance does not prohibit all nude
dancing, but only restricts nude dancing in those locations where the unwanted secondary effects arise.
The County's ordinance satisfies all four prongs of the O'Brien test. The district court was therefore
correct to grant summary judgment to Appellees on Appellants' First Amendment claims.
B. Restriction On Establishments Located In The Central Business District
Appellant Mardi Gras also challenges the portion of the County's ordinance that prohibits adult
entertainment establishment licenses from being issued to businesses operating in the Central Business
District. We conclude the district court correctly determined Appellant's claim is defeated by the Supreme
Court's decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29
(1986).
In Renton, the Supreme Court held that a content-neutral zoning ordinance is "properly analyzed as
a form of time, place, and manner regulation." Id. at 46, 106 S.Ct. at 928. Thus, like all content-neutral time,
place, and manner regulations, zoning ordinances "are acceptable so long as they are designed to serve a
substantial governmental interest and do not unreasonably limit alternative avenues of communication." Id.
at 47, 106 S.Ct. at 928. The County's ordinance is content-neutral because, as previously noted, it focuses
on the secondary effects of adult entertainment establishments. Cf. id. at 47-48, 106 S.Ct. at 929. We have
determined the County's interests in passing the ordinance were substantial. We further conclude the zoning
provision does not unreasonably limit alternative avenues of communication. The ordinance solely prohibits
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Appellant from obtaining an adult entertainment establishment license for an establishment within the Central
Business District. Appellant may operate an adult entertainment establishment in other locations outside the
Central Business District, subject to other applicable zoning restrictions. The zoning provision of the
ordinance thus satisfies the requirements of the First Amendment.
III. CONCLUSION
The County's ordinance prohibiting nude dancing at establishments that serve alcohol satisfies the
four-part O'Brien test. The zoning provision of the ordinance is constitutional under Renton. Therefore, the
County's Adult Entertainment Ordinance does not violate Appellants' First Amendment rights.
AFFIRMED.
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