concurring.
*97Since the panel is unable to join in a unanimous opinion, it may be helpful if I state my own views respecting how I regard the issues involved.
The case at bar is essentially a zoning or land use case. Appellant seeks to change the existing use at the location of his establishment from a bar simpliciter, selling liquor by the glass for consumption on the premises, to an establishment so selling liquor plus providing go-go dancing. This automatically thereupon becomes a case subject to regulation by the city’s zoning authority under its broader powers conferred by the Twenty-first Amendment.
That is true whether counsel talks about the Twenty-first Amendment or not. Naturally he will talk more about the new feature being added (just as a car salesman will stress the new anti-locking brakes rather than the time-tested rugged engine) but, ex necessitate rei the force of the Twenty-first Amendment necessarily comes into the picture.
I am satisfied that, as stated above, the facts of the case automatically invoke application of the Twenty-first Amendment. As the old maxim says, the law arises from the facts — ex facto oritur jus.
The facts of the case show that the setting and environment involve not the abstract issue whether dancing is speech, but whether in a barroom setting the City possesses broadened1 regulatory authority to act against the evils consequent upon such a situation. These are substantial evils, arising from the synergistic impact of nudity and liquor together. They are colorfully described by Chief Judge Rehnquist in his opinion for the Court in Larue.2
This case on its plain facts involves not a ballet in a theatre but in the context of a barroom environment with interaction between the dancers and customers,3 and the City does have adequate regulatory power under Larue and also under New York State Liquor Authority v. Bellanca, 452 U.S. 714, 715, 101 S.Ct. 2599, 2600, 69 L.Ed.2d 357 (1986).4 These authorities are adequate, in my view, to support our decision.
Hence, in the case at bar I think we cannot escape the force of an Amendment to the Constitution. It is a part of the Supreme Law and we must apply it. So I am agreeable to relying on the Twenty-first Amendment as our ratio decidendi.5
Judge Bowman’s opinion, as I interpret it, firmly rests the decision on these authorities. He also in note 13 cites the cases permitting zoning (either by concentration or dispersion) of “adult” entertainment as a proper method of allocating land use. The Supreme Court thus recognized First Amendment concerns as not necessarily controlling but simply one peripheral element to be considered in the balancing decisions regarding the appropriate use of a particular tract.
I therefore concur in Part III of his opinion,6 and in the judgment of reversal in part, and affirmance in part.
. It was pointed out in California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), that "the broad sweep of the Twenty-First Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals [traditionally within the scope of the police power].”
. 409 U.S. at 111, 93 S.Ct. at 393.
. See 409 U.S. at 114, 93 S.Ct. at 395.
. It is well established "that a State has broad powers under the Twenty-first Amendment to regulate the times, places and circumstances under which liquor may be sold." [Italics supplied].
. See also Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976); and FW/PBS, Inc. v. City of Dallas, — U.S. -, 110 S.Ct. 596, 624, 107 L.Ed.2d 603 (Scalia, J).
. With respect, I regard part II as massive obiter dictum, or in his own pithy phrase "gratuitously pedagogic.” To a lesser degree, the same is true of part IV. I view the invocation of due process by appellant as merely a vehicle for making the First Amendment applicable to local governments under the doctrine of "selective incorporation.” No substantial claim is presented of delay amounting to denial of justice in the sense of article 40 of Magna Carta. See J.C. Holt, Magna Carta (1965) 326-27.