[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-12281 July 15, 2003
____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 99-02707-CV-T-25-C
PEEK-A-BOO LOUNGE OF BRADENTON, INC.,
a Florida corporation,
M. S. ENTERTAINMENT, INC.,
a Florida corporation,
Plaintiffs-Appellants,
versus
MANATEE COUNTY, FLORIDA,
a political subdivision of the State of Florida,
Defendant-Appellee.
____________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(July 15, 2003)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
BARKETT, Circuit Judge:
Peek-A-Boo Lounge of Bradenton, Inc. and M.S. Entertainment, Inc. d/b/a
Temptations II (“the Adult Lounges”), two adult dancing establishments, appeal
the District Court’s grant of summary judgment to Manatee County, Florida (“the
County”), upholding the constitutionality of two County ordinances that regulate
adult dancing establishments and public nudity. The Adult Lounges argue that
Ordinance 98-46, which imposes requirements on the physical layout of adult
dancing establishments and allows the County Sheriff to search such premises
without a warrant, and Ordinance 99-18, a general public nudity statute, violate
their First, Fourth, Fifth, and Fourteenth Amendment rights. In addition, the Adult
Lounges contend that both ordinances impair their previously approved settlement
agreement with the County and thus violate the Contract Clause, U.S. Const. Art.
I, §10, cl. 1. Finally, the Adult Lounges maintain that Ordinance 99-18 is both
preempted by, and inconsistent with, Florida state law.
I. BACKGROUND
In 1987, Manatee County adopted Ordinance 87-07, an “Adult
Entertainment Code,” which made the locations of Appellants’ existing
businesses, the County’s only two licensed adult dancing facilities,
nonconforming. Appellants filed suit in federal court challenging the
2
constitutionality of the ordinance. The parties settled the lawsuit on April 11,
1989, with an agreement that allowed the Adult Lounges to continue to provide
adult entertainment. The settlement effectuated a permanent injunction that
enjoined the County from enforcing Ordinance 87-07 against the Adult Lounges
for the current use of their properties.
Almost ten years later, on November 24, 1998, the Manatee County Board
of County Commissioners (“the Board”) enacted a similar ordinance, Ordinance
98-46, which amended the County’s Adult Entertainment Code, Chapter 2-2.5-59
of the Manatee County Code of Laws, by providing specific physical requirements
for premises used as adult dancing establishments, and which again made
Appellants’ businesses nonconforming.1
1
Ordinance 98-46 amended § 2-2.5-59 of the Manatee Code by adding the following provisions
(g) through (o).
(g) All adult dancing establishment premises shall have an entrance room or lobby, i.e.,
the room which is entered from the outside, and sanitary facilities as set forth in
subsection 2-2.5-56(f). The entrance room or lobby may be as large or small as the
licensee chooses.
(h) All other rooms in adult dance establishment premises must either:
(1) be not less than one thousand square feet in area; or
(2) be clearly marked in letters not less than two inches in height “No Customers
or Patrons Allowed.”
(i) Except for sanitary facilities, no doorway or entranceway within any premises shall be
locked at any time a customer is anywhere within the premises or at anytime the premises
are open to the public unless customers or patrons are prohibited at all times from going
into the rooms or areas behind such doorways or entranceways and provided such doors
are marked as set forth in paragraph (h)(2) above.
(j) At least one doorway into or out of the adult dancing establishment premises shall be
unlocked at anytime a customer is anywhere within an adult dancing establishment
3
Four months later, Manatee County adopted “Public Nudity Ordinance” 99-
18, which made it unlawful “to knowingly, intentionally, or recklessly appear, or
cause another Person to appear, Nude in a Public Place.” Although Ordinance 99-
18 was not exclusively directed toward adult entertainment establishments, its
stated aim was, inter alia, to prevent “incidents of prostitution, sexual assaults and
batteries, [and] other criminal activity” that the County found to be associated with
“the mere appearance of nude persons in public places.” The ordinance identified
“public places” to include “streets, sidewalks, parks, beaches, [and] business and
commercial establishments.” Ordinance 99-18 also defined “nudity” broadly, to
include the wearing of any opaque swimsuit or lingerie covering less than one-
premises or at anytime the premises are open to the public.
(k) All rooms open to the public in any adult dancing establishment premises shall be
lighted such that the light intensity at every point thirty inches above the floor is not less
than one-half footcandle.
(l) The Sheriff shall have access to all rooms at all times any adult dancing establishment
premises are open to the public. Premises are irrebuttably presumed to be open at any
time a customer is on the premises. This access shall be for inspection purposes only.
(m) No room other than a sanitary facility or room marked as set forth in (h)(2) shall have
any dividers or partitions or any other thing in excess of three feet in height which blocks
the view of any portion of the room.
(n) Private rooms are prohibited within the adult dancing establishment premises.
(o) No room within the premises shall have its doorway or threshold blocked or obscured
by doors, curtains, drapes or any other obstruction unless the room is (1) a sanitary
facility, (2) the room is an adult motion picture theater in which movies are shown on a
screen, or (3) a room marked as set forth in paragraph (h)(2), hereinabove.
4
third of the buttocks or one-fourth of the female breast.2 Further, the ordinance
2
Ordinance 99-18 defined “Nude” to refer to any person “five years of age or older” who is:
“insufficiently clothed in any manner so that any of the following body parts are not
entirely covered with a fully opaque covering: (1) The male or female genitals, . . . (2)
The male or female pubic area, . . . (3) The female Breast . . . or (4) The Buttocks.”
The ordinance also contained unusually elaborate definitions of “Breast” and “Buttocks.”
Ordinance 99-18 defined “Breast” as:
“A portion of the human female mammary gland (commonly referred to as the female
breast) including the nipple and the areola (the darker colored area of the breast
surrounding the nipple) and an outside area of such gland wherein such outside area is (i)
reasonably compact and contiguous to the areola and (ii) contains at least the nipple and
the areola and 1/4 of the outside surface area of such gland.”
The ordinance allowed that “[e]ach female Person may determine which 1/4 or her Breast surface
area . . . contiguous and containing the nipple and areola is to be covered.” Ordinance 99-18
defined “Buttocks” as:
“The area at the rear of the human body (sometimes referred to as the gluteus maximus)
which lies between two imaginary straight lines running parallel to the ground when a
person is standing, the first or top such line being 1/2 inch below the top of the vertical
cleavage of the nates (i.e., the prominence formed by the muscles running from the back
of the hip to the back of the leg) and the second or bottom such line being 1/2 inch above
the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the
gluteal fold), and between two imaginary straight lines, one on each side of the body (the
‘outside lines’), which outside lines are perpendicular to the ground and to the horizontal
lines described about and which perpendicular outside lines pass through the outermost
point(s) at which each nate meets the outer side of each leg. Notwithstanding the above,
Buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor
fasciae latae muscle or any of the above-described portion of the human body that is
between either (i) the left inside perpendicular line and the left outside perpendicular line
or (ii) the right inside perpendicular line and right outside perpendicular line. For the
purpose of the previous sentence, the left inside perpendicular line shall be an imaginary
straight line on the left side of the anus (i) that is perpendicular to the ground and to the
horizontal lines described about and (ii) that is 1/3 of the distance from the anus to the left
outside line, and the right inside perpendicular line shall be an imaginary straight line on
the right side of the anus (i) that is perpendicular to the ground and to the horizontal lines
described above and (ii) that is 1/3 of the distance from the anus to the right outside line.”
The ordinance summarized this definition by stating: “The above description can generally be
described as covering 1/3 of the buttocks centered over the cleavage for the length of the
cleavage.”
5
specifically prohibited erotic dancers and others from appearing in public wearing
“G-strings, T-backs, dental floss, and thongs.”
In passing Ordinance 99-18, the Board rejected the recommendation by the
Manatee County Public Planning Commission that the ordinance “shall not apply
to duly licensed adult entertainment establishments” like the Adult Lounges.
However, in order to address possible overbreadth and other constitutional
problems, the Board acknowledged in the ordinance’s preamble that “there may be
instances where appearing Nude in a Public Place may be expressive conduct
incidental to and a necessary part of the freedom of expression that is protected by
United States or Florida constitutional provisions.” The ordinance also exempted
from its coverage any “bona fide live communication, demonstration, or
performance . . . [that] is not a guise or pretense utilized to exploit nudity for profit
or commercial gain.”
One month before the two ordinances were to take effect, the Adult Lounges
filed a complaint in the United States District Court, Middle District of Florida,
pursuant to 42 U.S.C. § 1983,3 alleging that the ordinances were unconstitutional.
3
42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .”
6
Specifically, the Adult Lounges argued that both ordinances were overbroad, were
adopted on the basis of an improper predicate, failed to advance any legitimate
governmental interest, constituted an invalid taking, and impaired the County’s
contractual obligations under the 1989 settlement; that Ordinance 99-18 was
unconstitutionally vague; and that Ordinance 98-46 violated both the Fourth
Amendment’s prohibition of warrantless searches and the Fourteenth
Amendment’s guarantee of equal protection. The Adult Lounges also included
claims for several alleged violations of Florida law.
On January 11, 2001, having submitted to the District Court a record of the
evidence it relied on when enacting the ordinances, the County moved for
summary judgment. The Adult Lounges opposed this motion and submitted
affidavits and expert studies contesting the County’s findings concerning the
negative effects caused by its businesses on the surrounding community. The
District Court granted the County’s motion for summary judgment, and this appeal
followed.
II. STANDARD OF REVIEW
We review the District Court’s grant of final summary judgment de novo,
viewing the record and drawing all reasonable inferences in the light most
favorable to the non-moving party. See Patton v. Triad Guar. Ins. Corp., 277 F.3d
7
1294, 1296 (11th Cir. 2002). The constitutionality of a statute is a question of law
subject to de novo review. See, e.g., Williams v. Pryor, 229 F.3d 1331, 1334 (11th
Cir. 2000); United States v. Harden, 37 F.3d 595, 602 (11th Cir. 1994).
III. DISCUSSION
A. Summary of Supreme Court’s “Secondary Effects” Jurisprudence
This case involves two ordinances, a zoning ordinance and a general public
nudity ordinance, both of which are alleged to violate Appellants’ First
Amendment rights to freedom of expression. To guide our analysis, we begin with
a comprehensive summary of the Supreme Court’s jurisprudence in this area. The
discussion is extensive, in part because of the large number of no-clear-majority
decisions of the Court in cases of this type. Moreover, our task is complicated
because although the Court has formulated distinct standards for evaluating the two
kinds of regulation enacted by the County in this case–zoning ordinances and
public nudity ordinances–the Court also has sometimes collapsed the two
categories into a single, overarching category of regulatory action targeting the
negative “secondary effects” of non-obscene adult entertainment and drawn
conclusions about this single category. See generally City of Los Angeles v.
Alameda Books, 122 S.Ct. 1728 (2002); City of Erie v. Pap’s A.M., 529 U.S. 277
8
(2000); Barnes v. Glen Theatre, 501 U.S. 560 (1991); City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986). Additionally, the Court has occasionally
borrowed specific doctrines developed in one category of case to apply to the other.
See, e.g., Alameda Books, 122 S.Ct. at 1736 (plurality opinion) (relying on the
Court’s holding in Pap’s A.M., a case involving a public nudity ordinance, to
explicate the evidentiary showing necessary to sustain an adult entertainment
zoning ordinance); Barnes, 501 U.S. at 583-84 (Souter, J., concurring) (relying on
the evidentiary standard described in Renton, a zoning case, to explicate the
evidentiary showing necessary to sustain a public nudity ordinance). After
identifying the applicable standards, we apply them to each of the ordinances at
issue in this case.
1. California v. LaRue and Doran v. Salem Inn
The Supreme Court first recognized the existence of First Amendment
freedom of expression rights in the adult entertainment context in California v.
LaRue, 409 U.S. 109 (1972). In that case, the Court upheld the constitutionality of
state-wide licensing regulations enacted by the California Department of Alcoholic
Beverage Control that prohibited sexually explicit live entertainment in
establishments licensed to sell liquor. The Court held that California had broad
9
latitude under the Twenty-first Amendment to control the manner and
circumstances under which liquor may be sold.4 The Court acknowledged that “at
least some of the performances to which these regulations address themselves are
within the limits of the constitutional protection of freedom of expression.” LaRue,
409 U.S. at 118. However, the Court emphasized that “the critical fact is that
California has not forbidden these performances across the board” but “merely
proscribed such performances in establishments that it licenses to sell liquor by the
drink.” Id.
However, in Doran v. Salem Inn, 422 U.S. 922 (1974), the Court affirmed
the grant of a preliminary injunction against the enforcement of a town ordinance
which proscribed topless dancing in bars as well as prohibiting “any female from
appearing in ‘any public place’ with uncovered breasts.” Doran, 422 U.S. at 933.5
The Court declared that “although the customary ‘barroom’ type of nude dancing
may involve only the barest minimum of protected expression, we recognized [in
4
The Twenty-first Amendment provides in pertinent part that “[t]he transportation or
importation into any State, Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const.
amend. XXI, § 2.
5
Doran does not clearly state whether the town ordinance was a zoning ordinance or a nudity
ordinance. The ordinance is described as “Local Law No. 1-1973, an ordinance making it
unlawful for bar owners and others to permit waitresses, barmaids, and entertainers to appear in
their establishments with breasts uncovered or so thinly draped as to appear unconvered.” 422
U.S. at 924.
10
LaRue] that this form of entertainment might be entitled to First and Fourteenth
Amendment protection in some circumstances.” Id. at 932. The Court held that,
unlike the regulations at issue in LaRue, the ordinance in Doran was overbroad
because it applied to all commercial establishments, not only those selling liquor by
the drink, and thus was not justifiable under the Twenty-first Amendment.6
2. Young v. American Mini-Theatres
In Young v. American Mini Theatres, 427 U.S. 50 (1976), the Court
recognized for the first time that regulations of adult entertainment could be
justified with reference to its negative effects on the surrounding community. The
Court upheld portions of a Detroit “Anti-Skid Row” zoning ordinance that required
adult movie theaters and bookstores to be dispersed throughout limited portions of
the city but did not ban them entirely. 7 However, although a majority of the Court
6
In 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484 (1996), which invalidated Rhode Island’s
ban on advertisements of retail liquor prices, the Court reaffirmed the holding of LaRue but
disavowed its reasoning insofar as it relied on the Twenty-first Amendment. The Court
concluded that “LaRue would have [had] precisely the same result if it had placed no reliance on
the Twenty-First Amendment” because “[e]ntirely apart from the Twenty-First Amendment, the
State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations.” Id.
at 516. The Court did not, however, explain the effect of its holding in 44 Liquormart on Doran.
7
The ordinance prohibited the operation of any adult entertainment movie theater within 1000
feet of any two other “regulated” uses (such as adult bookstores, bars, hotels, and cabarets), or
within 500 feet of a residential area. Young, 427 U.S. at 52.
11
agreed that the zoning ordinance was constitutional, no single rationale for the
decision enjoyed the assent of five Justices.
The plurality opinion, written by Justice Stevens, held that the sexually
explicit expression being regulated by the ordinance, though not altogether
unprotected, was of lower value than core, political speech. See Young, 427 U.S.
at 70 (plurality opinion) (characterizing “society’s interest in protecting this type of
expression” as “of a wholly different, and lesser, magnitude than the interest in
untrammeled political debate.”). The plurality concluded that the zoning ordinance
constituted “nothing more than a limitation on the place where adult films may be
exhibited” that was justified by the city’s interest in “preserving the character of its
neighborhoods.” Id. at 71.
Justice Powell, who provided the fifth vote necessary to sustain the
ordinance, rejected the plurality’s view “that nonobscene, erotic materials may be
treated differently under [the] First Amendment.” Id. at 73 n. 1 (Powell, J.,
concurring). Unlike the plurality, Justice Powell analyzed the constitutionality of
the zoning ordinance under the four-part test outlined in United States v. O’Brien,
391 U.S. 367 (1968). O’Brien was not an adult entertainment case but involved a
Vietnam-era war protester who claimed that the act of burning a draft card was
constitutionally protected expression. Rejecting his claim, the O’Brien Court held
12
that government regulation of expressive conduct is sufficiently justified if (1) it is
“within the constitutional power of the Government”; (2) “it furthers an important
or substantial governmental interest”; (3) “the governmental interest is unrelated to
the suppression of free expression”; and (4) “the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that
interest.” O’Brien, 391 U.S. at 376-377. Applying this test to the Detroit zoning
ordinance, Justice Powell found that the ordinance was justified because (1) “the
ordinance was within the power of the Detroit Common Council to enact”; (2) “the
interests furthered by this ordinance are both important and substantial,” since
“[w]ithout stable neighborhoods . . . large sections of a modern city quickly can
deteriorate into an urban jungle with tragic consequences to social, environmental,
and economic values”; (3) “Detroit has not embarked on an effort to suppress free
expression”; and (4) based on the evidence presented to the council, “the degree of
incidental encroachment upon such expression was the minimum necessary to
further the purpose of the ordinance.” Young, 427 U.S. at 80-82.
Unlike the four dissenters, who found the Detroit zoning ordinance to be
content-based, and thus discerned in the Court’s holding a “drastic departure from
established principles of First Amendment law,” id. at 84 (Stewart, J., dissenting),
Justice Stevens and Justice Powell agreed that the ordinance was unrelated to the
13
suppression of expression. Although they evaluated the ordinance under different
standards, Justices Stevens and Powell also agreed that the ordinance was justified
in part by the city’s interest in protecting its neighborhoods against certain negative
effects associated with adult entertainment. See 427 U.S. at 71, n. 34 (plurality
opinion) (noting that the city enacted the ordinance because “a concentration of
‘adult’ movie theaters causes the area to deteriorate and become a focus of crime,”
adding “it is this secondary effect which these zoning ordinances attempt to avoid,
not the dissemination of ‘offensive’ speech.”); id. at 83, n. 6 (Powell, J.,
concurring) (“We have here merely a decision by the city to treat certain movie
theaters differently because they have markedly different effects upon their
surroundings.”). In Young, therefore, a majority of Justices endorsed, for the first
time, the notion that zoning ordinances impacting sexually explicit adult
entertainment could be justified with reference to its unwanted “secondary effects.”
3. Schad v. Mount Ephraim
This concept was not without limits, however, as the Court’s next encounter
with adult entertainment, Schad v. Mount Ephraim, 452 U.S. 61 (1981), made
clear. Schad involved a challenge to a zoning ordinance brought by the operators
of a store selling adult materials who added a coin-operated mechanism enabling
14
customers to watch a live, nude dancer performing behind a glass panel. The
ordinance, Mount Ephraim, N.J., Code § 99-15B (1), (2) (1979), described
“permitted uses” in the community’s small commercial zone and prohibited all
other uses. The Supreme Court struck down the ordinance, which had been
construed by the state courts to forbid nude dancing, because it “prohibit[ed] a
wide range of expression long been held to be within the protection of the First and
Fourteenth Amendments” and the municipality’s alleged justifications for its
blanket prohibition were inadequate. Schad, 452 U.S. at 65. Writing for the
majority, Justice White held that “when a zoning law infringes on a protected
liberty, it must be narrowly drawn and must further a sufficiently substantial
government interest.” Id. at 68. In this case, none of Mount Ephraim’s asserted
justifications for its ordinance could withstand this heightened scrutiny, since it had
“presented no evidence” to defend its claims that problems “associated with live
entertainment, such as parking, trash, police protection, and medical facilities”
were “more significant than those associated with various permitted uses,” that
“live entertainment [was] incompatible” with the permitted uses, or that “the kind
of entertainment appellants wish to provide [was] available in reasonably nearby
areas.” Id. at 73-76.
15
4. Renton v. Playtime Theatres, Inc.
In Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the Court upheld a
city’s zoning ordinance that unlike the ordinance in Young attempted to regulate
the location of adult movie theaters by concentrating them rather than by dispersing
them. 8 Writing for the majority, Justice Rehnquist relied on Young but outlined a
new analytical framework for evaluating this type of regulation.
The Court’s analysis involved three steps. First, the Court found that since
the Renton ordinance did not ban adult theaters altogether but merely regulated
where they could be located, the ordinance was properly analyzed as a time, place
and manner regulation. Id. at 46. Second, the Court considered whether the
ordinance was content-based or content-neutral. The Court noted that content-
based ordinances are presumptively invalid and subject to strict scrutiny, but found
that the Renton ordinance did not fall into that category, since it “aimed not at the
content of the films shown at adult motion picture theaters but rather at the
secondary effects of such theaters on the surrounding community.” Id. at 47
(emphasis added). Third, the Court considered whether, as a content-neutral time,
place and manner regulation, the ordinance was “designed to serve a substantial
8
The ordinance prohibited any adult movie theater “from locating within 1,000 feet of any
residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any
school,” 475 U.S. at 44, a prohibition which effectively left only “520 acres, or [approximately]
five percent of the entire land area of Renton, open to use as adult theater sites.” Id. at 53.
16
governmental interest and allows for reasonable alternative avenues of
communication,” id. at 50, and found that these conditions were met. The Court
rejected the Ninth Circuit’s contention that the city’s justifications for the
ordinance were “conclusory and speculative” because “the Renton ordinance was
enacted without the benefit of studies relating to ‘the particular problems or needs
of Renton.’” Id. Instead, the Court held that “the 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.
5. Barnes v. Glen Theatre, Inc.
The Court examined the constitutionality of restrictions on adult
entertainment again in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456
(1991). Unlike Young, Schad, and Renton, Barnes involved a public indecency
statute rather than a zoning ordinance. Confronting this issue for the first time, the
Court upheld an Indiana indecency statute that had the effect of requiring dancers
in adult establishments to wear pasties and G-strings. Barnes, 501 U.S. at 572.
17
However, although five justices agreed that the statute should be upheld, they were
again unable to agree on a single rationale.
Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy,
recognized that the Court’s previous decisions in LaRue, Doran, and Schad implied
that nude dancing was “expressive conduct protected by the First Amendment.” Id.
at 565. Accordingly, Chief Justice Rehnquist analyzed the Indiana statute in light
of the four-part test for expressive conduct established in O’Brien. Applying this
test, he found that the statute was justified “despite its incidental limitations on
some expressive activity.” Id. at 567.9
Justice Scalia and Justice Souter each wrote separately, concurring in the
judgment of the Court but upholding the Indiana statute on different grounds from
each other and from the plurality. Justice Scalia found that the statute withstood
9
The Rehnquist plurality found each of O’Brien’s four conditions was satisfied. First, the public
nudity statute was clearly in the State’s constitutional power to enact. Barnes, 501 U.S. at 567.
Second, the statute furthered the State’s substantial interest in “protecting societal order and
morality.” Id. Third, this interest was unrelated to the suppression of free expression, since
Indiana proscribed nudity across the board and did not specifically target the erotic message
conveyed by nude dancing. Id. at 571 (“[T]he requirement that the dancers don pasties and
G-strings does not deprive the dance of whatever erotic message it conveys; it simply makes the
message slightly less graphic . . . . [p]ublic nudity is the evil the State seeks to prevent, whether
or not it is combined with expressive activity.”). Finally, Indiana’s statute satisfied the fourth
requirement of O’Brien that any incidental restriction on First Amendment freedoms be no
greater than essential to further the government’s interests. “It is without cavil that the public
indecency statute is ‘narrowly tailored’; Indiana’s requirement that the dancers wear at least
pasties and G-strings is modest, and the bare minimum necessary to achieve the State’s purpose.”
Id. at 572.
18
constitutional challenge, not because it survived the O’Brien test, but because “as a
general law regulating conduct and not specifically directed at expression, it is not
subject to First Amendment scrutiny at all.” Id. By contrast, Justice Souter agreed
with the plurality that nude dancing was expressive conduct protected by the First
Amendment and appropriately analyzed under O’Brien. However, he parted
company with them over how to understand and apply O’Brien’s second
requirement that government regulation of expressive conduct further important or
substantial government interests. According to Justice Souter, these interests need
not be limited to “protecting societal order and morality,” as the plurality argued.
Instead, like the zoning cases, they should be interpreted to include “the State's
substantial interest in combating the secondary effects of adult entertainment
establishments . . . [such as] prostitution, sexual assault, and other criminal
activity.” Id. at 582-83.
Because Justice Souter provided the narrowest grounds for the judgment of
the Court in Barnes, his concurrence constitutes the holding of that case under the
rule of Marks v. United States for interpreting fragmented Supreme Court
decisions.10 Hence his opinion demands close scrutiny. In identifying secondary
10
In Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977), the Supreme Court
held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest grounds.” Justice Souter’s
19
effects as an appropriate basis for upholding the Indiana statute, Justice Souter
relied heavily on the Supreme Court’s decisions in Renton and Young. Though
neither of these cases involved nude dancing, Justice Souter reasoned that because
nude dancing and the forms of adult entertainment at issue in Young and Renton
were “plainly of the same character,” they were “likely to produce the same
pernicious effects.” Barnes, 501 U.S. at 584. He thus concluded that the Renton
Court’s “recognition that legislation seeking to combat the secondary effects of
adult entertainment need not await localized proof of those effects,” id., could be
applied to the specific case of nude dancing. Indiana could reasonably rely on the
findings and experiences of other similar localities in order to conclude that
forbidding nude dancing furthered its interest in preventing secondary effects, and,
in that case, the state need not justify those restrictions by its own local studies. Id.
at 584. Hence O’Brien’s second prong was satisfied. So too was O’Brien’s third
condition, since the State’s interest in banning nude dancing was not related to the
suppression of free expression but resulted from a simple correlation of nude
dancing with secondary effects. Id. at 585. Finally, Justice Souter found that
concurrence in Barnes constitutes the holding of that case, since he concurred in the Court’s
judgment on the narrowest ground. See, e.g., Ben’s Bar, Inc., v. Village of Somerset, 316 F.3d
702, 718, n. 4 (7th Cir. 2003) (“Under Marks, Justice Souter’s concurrence is the controlling
opinion in Barnes, as the most narrow opinion joining the judgment of the Court”); Farkas v.
Miller, 151 F.3d 900, 904 (8th Cir. 1998) (“Justice Souter presented the narrowest resolution of
the issues in Barnes”).
20
O’Brien’s fourth requirement was also met, since the restrictions at issue in Barnes
were minor. “Pasties and a G-string moderate the expression to some degree, to be
sure, but only to a degree. Dropping the final stitch is prohibited, but the
limitation is minor when measured against the dancer's remaining capacity and
opportunity to express the erotic message.” Id. at 587.
6. City of Erie v. Pap’s A.M.
The Court revisited the issue of nude dancing in City of Erie v. Pap’s A.M.,
529 U.S. 277, 120 S.Ct. 1382 (2000). In another splintered opinion, the Court
upheld a public indecency ordinance similar to the statute at issue in Barnes. Pap’s
A.M., 529 U.S. at 283. Writing for a four-justice plurality, in an opinion stating the
holding of the Court under Marks, Justice O’Connor began by “clarify[ing] that
government restrictions on public nudity . . . should be evaluated under the
framework set forth in O’Brien for content-neutral restrictions on symbolic
speech.” Id. at 289. Justice O’Connor then concluded that Erie’s ordinance was
justified under the four requirements of O’Brien. The first and third of those
requirements–that the regulation was within the government’s power to enact and
that the government’s interest was unrelated to the suppression of expression–were
easily satisfied. Id. at 296, 301. In connection with the second O’Brien
21
requirement that the government’s regulation further an important or substantial
interest, Justice O’Connor reasoned that the evidentiary standard described in
Renton and in Justice Souter’s concurrence in Barnes was the appropriate measure
of whether Erie’s ordinance furthered the city’s interest in combating the harmful
secondary effects associated with nude dancing. As she emphasized, that
evidentiary requirement was a weak one:
In terms of demonstrating that such secondary effects pose a threat, the city
need not “conduct new studies or produce evidence independent of that
already generated by other cities” to demonstrate the problem of secondary
effects, “so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses.” [Renton]
Because the nude dancing at Kandyland is of the same character as the adult
entertainment at issue in Renton, Young . . . [and] LaRue, it was reasonable
for Erie to conclude that such nude dancing was likely to produce the same
secondary effects. And Erie could reasonably rely on the evidentiary
foundation set forth in Renton and [Young] to the effect that secondary
effects are caused by the presence of even one adult entertainment
establishment in a given neighborhood. In fact, Erie expressly relied on
Barnes and its discussion of secondary effects, including its reference to
Renton and [Young]. . . . [T]he evidentiary standard described in Renton
controls here, and Erie meets that standard.
Id. at 296-97 (internal citations omitted). Finally, Justice O’Conner found that
O’Brien’s fourth condition that any incidental limitation on protected expression be
no greater than necessary was satisfied, since “[t]he requirement that dancers wear
pasties and G-strings is a minimal restriction in furtherance of the asserted
22
government interests . . . [that] leaves ample capacity to convey the dancer's erotic
message.” Id. at 301.
Justice Scalia, joined by Justice Thomas, agreed that Erie’s ordinance was
constitutional, but did so on an entirely different basis. Reiterating the view he
expressed in Barnes, Justice Scalia deemed the ordinance to be a total ban on
public nudity, which was aimed at conduct, not expression, and thus was not
subject to First Amendment scrutiny at all. Id. at 307-08. Meanwhile, Justice
Souter filed a concurring and dissenting opinion, agreeing with the plurality that
the O'Brien test governed, but dissenting from the Court’s judgment in the case
because he disagreed with how the plurality applied the second prong of O’Brien.
On Justice Souter's view, the record failed to reveal “any evidence on which Erie
may have relied, either for the seriousness of the threatened harm or for the efficacy
of its chosen remedy.” 529 U.S. 277 at 314. As such, the record did not permit the
conclusion “that Erie's ordinance is reasonably designed to mitigate real harms.”
Id. at 317. Since, on his view, O’Brien’s second condition was not satisfied,
Justice Souter would have remanded the case to permit Erie to attempt to make that
factual showing.11
11
Justice Souter acknowledged that his partial dissent “rests on a demand for an evidentiary basis
that I failed to make when I concurred in Barnes. I should have demanded the evidence then, too
. . . after many subsequent occasions to think further about the needs of the First Amendment, I
have come to believe that a government must toe the mark more carefully than I first insisted.”
23
7. City of Los Angeles v. Alameda Books, Inc.
The Court’s most recent case involving adult entertainment was City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728 (2002), a case in
which adult businesses challenged the constitutionality of a city zoning ordinance
forbidding two or more such businesses from operating in the same building. The
Supreme Court reversed a lower court judgment granting summary judgment to the
adult businesses, holding that Los Angeles could reasonably rely, at this stage of
the litigation, on a police department study of the effect of adult businesses on
crime patterns to overcome summary judgment. Once again, however, no single
rationale justifying the result enjoyed the assent of five Justices.
The narrow question presented in Alameda Books was the appropriate
standard “for determining whether an ordinance serves a substantial government
interest under Renton.” 121 S.Ct. at 1733. The plurality opinion, written by
Justice O’Connor, found that by relying on a 1977 study showing that
concentrations of adult establishments are associated with higher rates of
prostitution, assaults, and other secondary effects, Los Angeles had complied with
Renton’s evidentiary requirement, at least for the purpose of surviving summary
Pap’s A.M., 529 U.S. at 316-317. Justice Stevens, joined by Justice Ginsburg, dissented,
concluding that the ordinance was a “patently invalid” content-based ban on nude dancing that
effectively censored protected speech. Id. at 332.
24
judgment motion. Id. Hence the plurality held that summary judgment for the
adult businesses should be reversed and the case remanded for further proceedings.
Id. at 1738. The plurality explained, however, that Renton’s requirement that a
municipality act on evidence “reasonably believed to be relevant” to the problem of
secondary effects does not mean
. . . that a municipality can get away with shoddy data or reasoning. The
municipality's evidence must fairly support the municipality's rationale for its
ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by
demonstrating that the municipality's evidence does not support its rationale
or by furnishing evidence that disputes the municipality's factual findings,
the municipality meets the standard set forth in Renton. If plaintiffs succeed
in casting doubt on a municipality's rationale in either manner, the burden
shifts back to the municipality to supplement the record with evidence
renewing support for a theory that justifies its ordinance.
Id. at 1736.12
Justice Kennedy concurred in the judgment of the Court but wrote separately
because he agreed with the dissent that the Los Angeles ordinance was not content-
neutral, and because he feared that the plurality opinion “might constitute a subtle
expansion” of Renton. Id. at 1739. On the issue of content-neutrality, the
O’Connor plurality took the position that the Court should not decide whether the
Los Angeles ordinance was content-neutral since the Ninth Circuit had not yet
12
In addition to joining the plurality opinion, Justice Scalia wrote separately to emphasize his
view that the plurality’s secondary effects analysis was unnecessary because the First
Amendment “does not prevent those communities that wish to do so from regulating, or indeed
entirely suppressing, the business of pandering sex.” Id. at 1738-39.
25
passed on the matter. Id. at 1737. Justice Kennedy disagreed, joining the four
dissenters in characterizing the application of the content-neutral label to secondary
effects ordinances like Los Angeles’ as a “fiction,” because “whether a statute is
content neutral or content based is something that can be determined on the face of
it; if the statute describes speech by content then it is content based. . . . These
ordinances are content based and we should call them so.” Id. at 1741.
Nevertheless, unlike the dissent, Justice Kennedy held that secondary effects
zoning ordinances were subject to intermediate scrutiny even though they were
content-based. Accordingly, he concluded that “the central holding of Renton is
sound: A zoning restriction that is designed to decrease secondary effects and not
speech should be subject to intermediate rather than strict scrutiny.” Id.
With respect to Renton, Justice Kennedy distinguished two questions
entering into whether an ordinance serves a substantial government interest under
Renton: (1) “what proposition does a city need to advance in order to sustain a
secondary effects ordinance?”, id. at 1741; and (2) “how much evidence is required
to support the proposition?” Id. As Justice Kennedy saw it, the plurality gave the
correct answer to the second question, but skipped the first, to which more
attention must be paid. To justify a content-based zoning ordinance, he argued, “a
city must advance some basis to show that its regulation has the purpose and effect
26
of suppressing secondary effects, while leaving the quantity and accessibility of
speech substantially intact.” Id. at 1742. The key issue, in other words, is “how
speech will fare” under the ordinance:
“[T]he necessary rationale for applying intermediate scrutiny is the promise
that zoning ordinances like this one may reduce the costs of secondary
effects without substantially reducing speech. For this reason, it does not
suffice to say that inconvenience will reduce demand and fewer patrons will
lead to fewer secondary effects. . . . It is no trick to reduce secondary effects
by reducing speech or its audience; but a city may not attack secondary
effects indirectly by attacking speech.”
Id.
Turning to the second question, Justice Kennedy agreed with the plurality
that “very little evidence” was required of a municipality to support the claim that
its ordinance serves to reduce secondary effects without substantially reducing
speech. Id. at 1743. In this case, Los Angeles could reasonably conclude based on
its 1977 study that preventing multiple adult businesses from operating under one
roof was “reasonably likely to cause a substantial reduction in secondary effects
while reducing speech very little.” Id. Justice Kennedy acknowledged that “[i]f
these assumptions can be proved unsound at trial, then the [Los Angeles] ordinance
might not withstand intermediate scrutiny.” Id. Nonetheless, he concluded that
these considerations were sufficient to determine that the ordinance was not
facially invalid and should survive a motion for summary judgment. Id. Because
27
he concurred in the judgment of the Court on the narrowest grounds, Justice
Kennedy’s concurrence represents the Court’s holding in Alameda Books under
Marks. See, e.g., Ben’s Bar, Inc., 316 F.3d 702, 722 (7th Cir. 2003) (identifying
Justice Kennedy’s opinion as controlling); SOB, Inc., v. County of Benton, 317
F.3d 856, 862 n.1 (8th Cir. 2003) (same).
8. Two Types of Regulation: Zoning Ordinances and Public Nudity Ordinances
Based on the foregoing, we conclude that while the Supreme Court has
utilized closely related, and at times overlapping, analytical frameworks to evaluate
adult entertainment zoning ordinances, on the one hand, and public nudity
ordinances, on the other, these two types of regulatory action, both of which may
target the perceived “secondary effects” of adult entertainment, must be
distinguished and evaluated separately. Zoning ordinances regulating the
conditions under which adult entertainment businesses may operate should be
evaluated under the standards for time, place, and manner regulations set forth in
Renton and reaffirmed in Alameda Books. Accordingly, a reviewing court must
perform a three-part analysis to determine whether the zoning ordinance violates
the First Amendment: first, the court must determine whether the ordinance
constitutes an invalid total ban or merely a time, place, and manner regulation;
28
second, if the ordinance is determined to be a time, place, and manner regulation,
the court must decide whether the ordinance should be subject to strict or
intermediate scrutiny; and third, if the ordinance is held to be subject to
intermediate scrutiny, the court must determine whether it is designed to serve a
substantial government interest and allows for reasonable alternative channels of
communication. Renton, 475 U.S. at 46-50; Alameda Books, 122 S.Ct. at 1733-34.
By contrast, public nudity ordinances, insofar as they are content-neutral,
should be evaluated under the four-part test for expressive conduct set forth in
O’Brien and utilized by the Court in Barnes and Pap’s A.M.. According to this test,
public nudity ordinances that incidentally impact protected expression should be
upheld if they (1) are within the constitutional power of the government to enact;
(2) further a substantial governmental interest; (3) are unrelated to the suppression
of free expression; and (4) restrict First Amendment freedoms no greater than
necessary to further the government’s interest. O’Brien, 391 U.S. at 367-77; Pap’s
A.M., 529 U.S. at 289; Barnes, 501 U.S. at 567.
The significance of Alameda Books is that it clarifies how the court is to
interpret the third step of the Renton analysis as well as the second prong of the
O’Brien test, which are, to a certain extent, virtually indistinguishable. In deciding
whether a given ordinance “is designed to serve” (Renton) or “furthers” (O’Brien)
29
the government’s alleged interest in combating the negative secondary effects
associated with adult entertainment, the standard we apply is the one described in
Renton and utilized in Barnes, Pap’s, A.M., and Alameda Books. According to this
standard, the government need not conduct local studies or produce evidence
independent of that already generated by other municipalities to demonstrate the
efficacy of its chosen remedy, “so long as whatever evidence [it] relies upon is
reasonably believed to be relevant to the problem that [it] addresses.’” Pap’s,
A.M., 529 U.S. at 296 (plurality opinion) (quoting Renton, 475 U.S. at 51-52).
However, the government’s evidence “must fairly support [its] rationale.”
Alameda Books, 122 S.Ct. at 1738 (plurality opinion); see also id. at 1743
(Kennedy, J., concurring). Further, plaintiffs challenging the ordinance after
passage must be given opportunity to “cast direct doubt on this rationale, either by
demonstrating that the municipality’s evidence does not support its rationale, or by
furnishing evidence that disputes the municipality’s factual findings.” Id.13
13
On the basis of these Supreme Court decisions, some federal courts have expressed doubt over
whether Renton or O’Brien should be used to evaluate adult entertainment ordinances and others
have decided that the two tests are interchangeable. See, e.g., LLEH, Inc. v. Wichita County,
Texas, 289 F.3d 358, 365 (5th Cir. 2002) (expressing uncertainty as to whether courts should use
“the test for time, place, or manner regulations, described in Renton . . . or the four-part test for
incidental limitations on First Amendment freedoms established in O’Brien”); Ben’s Bar, Inc.,
316 F.3d 702, 704 (7th Cir. 2003) (finding that “the analytical frameworks and standards utilized
by the Court in evaluating adult entertainment regulations, be they zoning ordinances or public
indecency statutes, are virtually indistinguishable”). Cf. Ward v. Rock Against Racism, 491 U.S.
781, 798 (1989) (stating that “in the last analysis” the O’Brien test is “little, if any, different from
the standard applied to time, place, or manner restrictions”). Indeed, the District Court appears to
30
Having summarized these precedents, we turn now to their application to the
two ordinances before us.
B. Ordinance 98-46
Ordinance 98-46 is not an ordinance directly regulating expressive conduct,
but a zoning ordinance that imposes various physical requirements on “all adult
dancing establishments” in Manatee County, including prohibiting private rooms,
setting minimum levels of lighting, and requiring both an entrance room or lobby
and an additional room of at least 1,000 square feet in size. The ordinance also
allows the County Sheriff to search the premises of such businesses without a
warrant. Because these regulations apply only to those businesses purveying a
form of sexually explicit speech, they trigger First Amendment scrutiny under the
line of zoning cases beginning with Young and Schad and culminating in Renton
and Alameda Books. Hence a reviewing court must ask (1) whether Ordinance 98-
46 constitutes a total ban, which would be impermissible, or merely a time, place
and manner regulation; (2) whether, if it is a time, place, and manner regulation,
have drawn a similar conclusion, since it evaluated both of Manatee County’s ordinances under
the four-part test outlined in O’Brien. However, based upon our review of the relevant case law,
we conclude that the two types of ordinances remain distinguishable and should be evaluated
separately.
31
Ordinance 98-46 should be subject to strict or intermediate scrutiny; 14 and (3)
whether, if Ordinance 98-46 is held to be subject to intermediate scrutiny, it is
designed to serve a substantial government interest and allows for reasonable
alternative channels of communication. Alameda Books, 122 S.Ct. at 1733-34;
Renton, 475 U.S. at 46-50.
Under this Court’s precedent, we must apply this third step by asking
whether Ordinance 98-46 is “narrowly tailored” to serve the government interest at
issue and allows for reasonable alternative avenues of expression. See
International Eateries of America, Inc., v. Broward County, Fla., 941 F.2d 1157,
1161-62 (11th Cir. 1991) (interpreting the third step of the Renton analysis to
require narrow tailoring); Lady J. Lingerie, Inc., v. City of Jacksonville, 176 F.3d
1358, 1361 (11th Cir. 1999) (same). Additionally, in deciding whether Ordinance
98-46 is narrowly tailored to serve a substantial government interest, we must
apply the evidentiary requirement described in Renton and clarified by the Court in
14
Although both the Court in Renton and the plurality in Alameda Books used the labels
“content-neutral” and “content-based” to characterize the second step of the Renton analysis,
they did so in order to determine whether the regulations before them should be subject to
intermediate or strict scrutiny. See Renton, 475 U.S. at 47-49; Alameda Books, 122 S.Ct. at
1733-34. In his Alameda Books concurrence, Justice Kennedy joined the four dissenters in
jettisoning the “content-neutral” label as applied to zoning ordinances that “describe speech by
content” on their face, 122 S.Ct. at 1741, but he too continued to characterize the key question in
terms of levels of scrutiny, and concluded that such ordinances were subject to intermediate
scrutiny even though they were content-based. Thus, the substance of Renton’s second step
remains unchanged after Alameda Book and properly involves determining whether an adult
entertainment zoning ordinance is subject to strict or intermediate scrutiny.
32
Alameda Books. According to this requirement, the County, when enacting the
ordinance, must have relied on evidence it “reasonably believed to be relevant” to
the problem of secondary effects. Renton, 475 U.S. at 51-52. Further, the
County’s evidence “must fairly support [its] rationale” and plaintiffs challenging
the ordinance must be given opportunity to “cast direct doubt on this rationale”
with evidence of their own. Alameda Books, 122 S.Ct. at 1738.
In this case, it is unnecessary to perform the first two steps of the Renton
analysis, because even if we were to decide that Ordinance 98-46 is a valid time,
place, and manner regulation that is properly subject to intermediate scrutiny, the
record reveals that the Manatee County Board of County Commissioners, when
enacting Ordinance 98-46, failed to rely on any evidence whatsoever that might
support the conclusion that the ordinance was narrowly tailored to serve the
County’s interest in combating secondary effects. Renton stands in part for the
proposition that a municipality enacting a zoning ordinance targeting secondary
effects must rely upon evidence it reasonably believes to be relevant for this
purpose at the time of enactment. This is the clear implication of the Court’s
holding that “[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
33
is reasonably believed to be relevant to the problem that the city addresses.”
Renton, 475 U.S. at 51-52 (emphasis added). Because the County failed to rely on
any evidence linking the passage of Ordinance 98-46 to the prevention of
secondary effects, it cannot be said that the County has satisfied even Renton’s
weak condition that it rely on evidence “reasonably believed to be relevant” to the
problem of secondary effects or Alameda Books’ condition that its evidence “fairly
supports [its] rationale for enacting its ordinance.” Instead, based on the record
before us, we conclude that the County has not met its burden to show that
Ordinance 98-46 was narrowly tailored to serve the County’s interest in combating
secondary effects.
Manatee County argues that it “was not required to develop a specific
localized evidentiary record supporting” Ordinance 98-46 and could reasonably
“rely on the evidentiary foundation set forth in prior cases” such as Barnes and
Renton. Brief for Appellee, at 20. However, these statements, though accurate, do
not validate the County’s contention that Ordinance 98-46 withstands intermediate
scrutiny. This Court has held that Renton requires at least some pre-enactment
evidence. See, e.g., Ranch House v. Amerson, 238 F.3d 1273, 1283 (11th Cir.
2001) (“[S]tate actors in Defendants’ position must cite to some meaningful
indication–in the language of the code or in the legislative proceedings–that the
34
legislature’s purpose in enacting the challenged statute was a concern over
secondary effects rather than merely opposition to proscribed expression”)
(emphasis original); Flanigan’s Enterprises, Inc., v. Fulton County, Ga., 242 F.3d
976, 986 (11th Cir. 2001) (the court may not simply presume the evidence needed
to sustain a secondary effects ordinance because “where the right to free speech is
at issue, the government bears the burden of showing that the articulated concern
has more than merely speculative factual grounds, and that it actually was a
motivating factor”). To satisfy this burden, the County submitted to the District
Court two large volumes of the evidence the Board relied upon when enacting both
Ordinance 98-46 and Ordinance 99-18. R.1-30. All of this evidence, however, was
directed exclusively toward Ordinance 99-18, the County’s general nudity
ordinance, and was presented to the Board only after Ordinance 98-46 was enacted.
Further, Ordinance 98-46 incorporates no findings of secondary effects or
references to relevant case law. Unlike Ordinance 99-18, therefore, the record
reveals that the County failed to rely on any evidentiary foundation when enacting
Ordinance 98-46.15
15
Despite an extensive search, the only possible evidentiary basis for Ordinance 98-46 we have
been able to locate in the record is a passing reference during the November 24, 1998 public
hearing to a similar ordinance enacted by the City of Jacksonville, Florida, “which held up under
appeal.” R.1-30, Tab 4. We find this oblique, isolated reference to the ordinance at issue in
Lady J. Lingerie, Inc., v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997), insufficient to
satisfy the County’s evidentiary burden under Renton. As the Fifth Circuit has observed, it is not
35
In rejecting Appellants’ constitutional challenge, the District Court expressly
considered “the evidence presented to the Board at the time it enacted” Ordinances
98-46 and 99-18. However, the District Court neglected to treat the two ordinances
as distinct in this regard. Instead, the District Court collapsed the two ordinances
and their accompanying evidence into a single analysis. While we agree with the
District Court that the County has met its initial burden under Renton to rely upon
evidence it “reasonably believed to be relevant” when adopting Ordinance 99-18,
the same cannot be said for Ordinance 98-48, which the record reveals was adopted
without any pre-enactment evidence.
In addition to considering the evidence presented to the Board at the time it
enacted the ordinances, the District Court also implied a different view toward the
issue of pre-enactment evidence. Relying on the Third Circuit’s decision in
Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997), the District Court
suggested in a footnote to its opinion that Manatee County was not required to rely
on pre-enactment evidence, so long as the County was prepared to present a
“factual basis for its legislative judgment . . . in court when that judgment [was]
enough under Renton “simply to tailor one ordinance to another that has survived judicial
review.” SDJ, Inc. v. Houston, 837 F.2d 1268, 1274 (5th Cir. 1988). Instead, the County “must
advance some basis to show that its regulation has the purpose and effect of suppressing
secondary effects, while leaving the quantity and accessibility of speech substantially intact.”
Alameda Books, 122 S.Ct. at 1742 (Kennedy, J., concurring).
36
challenged.” However, this Court has consistently interpreted Renton to require
pre-enactment evidence, as the County’s own statement of issues raised on appeal
recognizes. See, e.g., Ranch House, 238 F.3d at 1282-84; Flanigan’s, 242 F.3d at
985-87. See also Brief of Appellee at 1 (stating issue as “[w]hether the District
Court . . . correctly found that the ordinances were based on an adequate record
before the Board of County Commissioners”).16 Moreover, we find Phillips’
reasoning difficult to square with Renton, whose very language refers to pre-
16
The Third Circuit appears to be an outlier on this issue. Other circuits have also interpreted
Renton to require at least some pre-enactment evidence. See, e.g., D.H.L. Associates, Inc., v.
O’Gorman, 199 F.3d 50, 57-58 (1st Cir. 1999) (reviewing whether town considered secondary
effects evidence “prior to the ordinance’s enactment” to determine whether Renton was
satisfied); Hickerson v. City of New York, 146 F.3d 99, 105 (2d Cir. 1998) (“a barren legislative
record will not suffice under the First Amendment”); 11126 Baltimore Blvd. v. Prince George's
County, Md., 886 F.2d 1415, 1423 (4th Cir. 1989) (“Clearly, trial testimony and ‘supplemental’
materials cannot sustain regulations where there is no evidence in the pre-enactment legislative
record”) (emphasis original); SDJ, Inc., 837 F.2d at 1274 (5th Cir. 1988) (“We are persuaded that
the City met its burden under [Renton] to establish that there was evidence before it from which
the Council was entitled to reach its conclusion”); Christy v. Ann Arbor, 824 F.2d 489, 493 (6th
Cir. 1987) (“Although . . . a city need not conduct new independent studies to justify adult
business zoning ordinances, [we] have required some relevant evidence to demonstrate that the
zoning ordinance was intended to address the secondary effects of adult businesses”); Ben’s Bar,
Inc., 316 F.3d at 725 (7th Cir. 2003) (“In enacting the ordinance, the Village Board relied on
numerous judicial decisions, studies from eleven different cities, and . . . findings . . . to support
its conclusion that adult entertainment produces adverse secondary effects”); SOB, Inc., 317 F.3d
at 862 (8th Cir. 2003) (identifying “the fighting issue in this case” as whether the County “had
sufficient evidence” of secondary effects “before enactment” to justify adopting its ordinance);
Tollis Inc. v. San Bernardino County, 827 F.2d 1329, 1333 (9th Cir. 1987) (“The County must
show that in enacting the particular limitations ... it relied upon evidence permitting the
reasonable inference that, absent such limitations, the adult theaters would have harmful
secondary effects”); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 690 (10th Cir. 1998)
(finding that a “completely barren legislative record” does not satisfy Renton).
37
enactment evidence, as well as with the Supreme Court’s most recent treatment of
this issue in Alameda Books.17
In sum, although Renton’s evidentiary burden for the passage of a secondary
effects zoning ordinance is not a rigorous one and the Supreme Court has made
plain its intention to give municipalities wide latitude to design and implement
solutions to problems caused by adult entertainment without compiling an
extensive evidentiary record, see, e.g., Alameda Books, 122 S.Ct. at 1736-37,
1742-43, this leeway is not without limits. To satisfy Renton, any evidence
“reasonably believed to be relevant”–including a municipality’s own findings,
evidence gathered by other localities, or evidence described in a judicial
opinion–may form an adequate predicate to the adoption of a secondary effects
ordinance, but the government must rely on at least some pre-enactment evidence.
Because Ordinance 98-46 is deficient in this regard, we hold that the District Court
erred in finding that Ordinance 98-46 as it applies to these plaintiffs on this record
17
See Alameda Books, 122 S.Ct. at 1738 (resolving dispute raised by Respondents’ argument
that Los Angeles could not reasonably rely on post-enactment evidence, not by finding
respondents’ argument inapposite, as would be appropriate if Renton did not require pre-
enactment evidence, but by noting that Los Angeles had, in fact, relied on pre-enactment
evidence).
38
survives intermediate scrutiny. We therefore reverse the District Court’s grant of
summary judgment to the County with respect to this ordinance.18
C. Ordinance 99-18
In contrast to Ordinance 98-46, Ordinance 99-18 is a general prohibition on
public nudity, not a zoning ordinance. The ordinance regulates nudity directly,
while impacting the expressive element of nude dancing only incidentally. The
Supreme Court has held that this type of government regulation, which “does not
target nudity that contains an erotic message,” but rather “bans all public nudity,
regardless of whether that nudity is accompanied by expressive activity,” is
content-neutral and thus “should be evaluated under the framework set forth in
O’Brien.” Pap’s A.M., 529 U.S. at 289-90. Accordingly, we must determine the
constitutionality of Ordinance 99-18 as applied to the Adult Lounges by analyzing
it under O’Brien’s four-part test.
18
The Adult Lounges argue that Ordinance 98-46 also violates the Fourth Amendment’s
protection against unreasonable searches, the Fifth Amendment’s protection against invalid
takings, the Fourteenth Amendment’s protection against violations of equal protection, and the
Contract Clause’s protection against laws impairing the obligation of contracts. Because we
sustain the Adult Lounges’ First Amendment challenge to Ordinances 98-46 we decline to
address these additional claims at this time.
39
1. O’Brien’s First and Third Prongs
Ordinance 99-18 easily satisfies the first and third prongs of O’Brien. The
first O’Brien factor is whether the regulation is within the constitutional powers of
the government. O’Brien, 391 U.S. at 376. Here, Ordinance 99-18 is within
Manatee County’s police powers. Pap’s A.M., 529 U.S. at 296; Barnes, 501 U.S. at
567. Likewise, Ordinance 99-18 clearly satisfies the third O’Brien condition,
which requires the government’s interest to be unrelated to the suppression of free
expression, because the ordinance bans all public nudity, not just nudity in adult
dancing establishments. The Supreme Court has repeatedly held this type of
general ban to be unrelated to the suppression of free expression. Pap’s A.M., 529
U.S. at 296; Barnes, 501 U.S. at 567.
2. O’Brien’s Second Prong
Under O’Brien’s second prong, the County must demonstrate that Ordinance
99-18 furthers the County’s substantial interest in preventing secondary effects
associated with adult entertainment. To this end, the County may rely upon any
evidence that is “reasonably believed to be relevant” to its interest in preventing
secondary effects. Renton, 475 U.S. at 51-52. However, the County cannot rely on
“shoddy data or reasoning” and its “evidence must fairly support [its] rationale.”
40
Alameda Books, 122 S. Ct. at 1736. Further, plaintiffs must be given the
opportunity to “cast direct doubt on this rationale” with evidence of their own. Id.
If plaintiffs succeed in doing so, “the burden shifts back to the [County] to
supplement the record with evidence renewing support for a theory that justifies its
evidence.” Id. (citing Pap’s A.M., 529 U.S. at 298).
Here, although Ordinance 99-18 prohibits public nudity across the board and
not just nudity occurring in adult entertainment establishments, Manatee County
expressly relied on its determination that public nudity “increases incidents of
prostitution, sexual assaults and batteries, [and] other criminal activity” when it
adopted Ordinance 99-18. The County also relied on a report prepared by the
Florida Family Association, “Evidence of Secondary Adverse Effects of Sexually
Oriented Businesses,” which included testimony from the sheriff of nearby Pinellas
County concerning “the proliferation of prostitution, sexual contact and lewd acts
that take place in nude dancing establishments in Pinellas County,” and from the
Director of Communicable Diseases of the Pinellas County Health Department
concerning communicable diseases that “are transmitted by unprotected sexual
activity that takes place in [such] establishments.” R.1-30, Tab 9. In Pap’s A.M.,
the Court found that a municipality’s own findings and “reasonable belief that the
experience of other jurisdictions is relevant to the problem it is addressing” were a
41
sufficient evidentiary basis. 529 U.S. at 297. Hence the County’s findings, and the
evidence it submitted to the District Court in conjunction with its motion for
summary judgment, satisfy the County’s pre-enactment burden as set forth in
Renton and reaffirmed in Pap’s, A.M.. Id.; Renton, 475 U.S. at 51-52.
However, since the Adult Lounges have challenged the sufficiency of the
County’s evidence, under Alameda Books and Pap’s A.M. our inquiry does not end
here. We must next determine whether the Adult Lounges have managed to “cast
direct doubt” on the County’s rationale for Ordinance 99-18. Alameda Books, 122
S.Ct. at 1736 (plurality opinion) (citing Pap’s A.M., 529 U.S. at 298); see also id. at
1742-44 (Kennedy, J., concurring). Based on the evidence before us, it appears
that the Adult Lounges have accomplished this task.
In response to the County’s motion for summary judgment, the Adult
Lounges placed into the record a two-volume “Appendix in Support of Peek-A-
Boo Lounge and Temptations II’s Opposition to Proposed Manatee County Public
Nudity Ordinance [No. 99-18],” which it had previously submitted to the Manatee
County Planning Commission during the public hearings the Commission held
prior to the adoption of Ordinance 99-18. R.1-30, Tabs 10-11. These materials
included satisfactory health and safety inspection reports of plaintiffs’ businesses
issued by the Florida Department of Health and the Cedar Hammock Fire
42
Department, R.1-30, Tab 10, at Ex. P, and Tab 11, at Ex. J; incident reports of
criminal activity near the Adult Lounges and elsewhere showing lower crime rates
near Appellants’ businesses than in surrounding areas, R.1-30, Tab 10, at Ex. Q-S;
recent sales and assessment data revealing an increase in property values for
property located near Appellants’ businesses, R.1-30, Tab 10, at Ex. M-N, U, and
Tab 11, at Ex. K-M; and an award given in 1996 to the Peek-A-Boo Lounge by the
Manatee County Sheriff for its “outstanding contribution to the community,” R.1-
30, Tab 11, at Ex. C.
In further response to the summary judgment motion, the Adult Lounges also
submitted three expert studies specifically addressing local conditions in Manatee
County which purported to show that there was no evidence connecting their
businesses with negative secondary effects. Dr. Terry A. Danner, Chair of the
Department of Criminology at St. Leo University, conducted a study utilizing the
County’s own crime statistics that examined the criminogenic effects of the
Appellant’s specific businesses and found that Appellants businesses did not cause
such effects.19 Dr. Randy D. Fisher, Associate Professor of Psychology and
19
The research question posed by the Danner study was “whether or not there existed objective
and quantifiable evidence” that Appellants’ businesses “have been criminogenic businesses in
such a way that their operation has resulted in a significant and sustained increase in crime
volumes within the urban areas of their location.” To address this question, the study utilized
local crime statistics for the period 1992-1999 for seven offense types (murder, rape, robbery,
aggravated assault, burglary, larceny, and motor vehicle theft) that were collected by the Manatee
43
Director of the Survey Research Laboratory at the University of Central Florida,
prepared a study titled “Evidence for the Adverse Secondary Effects of Adult
Entertainment: The Manatee County Record,” which examined the record
submitted by the County in support of Ordinance 99-18 and concluded that because
“the only statistical data provided [in the record] showed lower rates of crime . . .
[and] substantial increases in property values, both in the long run and in the
shorter run, in the areas around the existing adult businesses,” the specific evidence
relating to the Appellants’ businesses contradicted any suggestion that “the two
existing adult businesses in Manatee County have ‘adverse secondary effects.’”20
Finally, Mr. Richard Schauseil, a licensed Florida real estate agent, conducted an
extensive “Market Study and Report” on the effects of Appellants’ businesses on
County Sheriff’s office on a grid-by-grid basis for approximately 400 more-or-less uniformly
sized geographic grids within the county, including those grids containing the Adult Lounges.
Analyzing this data–the only such data available–by a variety of statistical measures, the Danner
study concluded that “there was insufficient evidence . . . to establish a causal connection
between the operation of [the Adult Lounges] and crime volumes” in their respective grids and
adjoining areas.
20
On the basis of this study, which included a comprehensive, document-by-document review of
the County’s pre-enactment evidence, Dr. Fisher also found that of the nineteen foreign studies
contained in the Florida Family Association report–the only set of empirical studies relied upon
by the County when it adopted Ordinance 99-18–only two were conducted with “any modicum of
appropriate research methodology.” The two exceptions were the Austin report and the
Indianapolis report. The former, written in 1986 by the city of Austin’s Office of Land
Development Services, utilized “calls to the Austin Police Department from January 1, 1984
through December 31, 1985” and surveys “of [Austin] real estate professionals” as its database.
The latter, written in 1984 by the Indianapolis Department of Metropolitan Development, also
consisted only of local data that was collected by that Department from 1978 to 1982. R.1-30,
Tab 9, at Ex. N-O.
44
neighboring properties which found that there were “absolutely no signs of any
negative effects on adjoining property values or conditions” resulting from
Appellants’ businesses.21
Taken together, the Adult Lounges argue that this evidence “casts direct
doubt” on the County’s alleged rationale in enacting Ordinance 99-18 “by
demonstrating that [the County’s] evidence does not support its rationale” and “by
furnishing evidence that disputes the [County]’s factual findings.” Alameda
Books, 122 S.Ct. at 1736. Given the record and procedural posture of this case, we
are inclined to agree. Although Manatee County met its minimal initial burden
under Renton to rely on evidence it reasonably believed to be relevant to
addressing the problem of secondary effects, in this case Appellants have
successfully cast doubt on the County’s rationale by placing into the record
substantial and unanswered factual challenges to the County’s findings in the
specific areas of crime, decreased property values, aesthetic blight, and other
secondary effects.
21
The Schauseil study examined real estate sales and permit histories to determine the effects of
the Adult Lounges on the market values and economic viability of adjoining commercial
properties. The author found steadily appreciating market values and active permit histories for
properties adjacent to both of the Adult Lounges, concluding that “the sales record for the two
Subject Commercial Areas has shown appreciation . . . [t]he vacancy rate and lease rate for lease
space and properties offered for sale has shown a stable and viable economic area . . . [and] [t]he
number of open and viable businesses in each Subject Commercial Area demonstrates strong and
stable economic conditions.”
45
In Alameda Books, the District Court granted summary judgment to the adult
businesses challenging the constitutionality of a secondary effects ordinance. The
Supreme Court reversed and held that the city had presented sufficient evidence to
overcome a facial challenge to that ordinance. Alameda Books, 122 S.Ct. at 1738.
By contrast, here summary judgment was granted to the County, and it is the adult
businesses, whose constitutional challenge we understand to be an “as applied”
challenge, who claim they have presented sufficient evidence to withstand that
judgment. Summary judgment is appropriate, of course, only where the evidence
before the court shows “that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. In making this
determination, the court “must draw all justifiable inferences in favor of the
nonmoving party, including questions of credibility and of the weight to be
accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S.
496, 520 (1991). In this case, the District Court failed to draw all justifiable
inferences in favor of the Adult Lounges as to the credibility and weight of their
evidence, which when properly interpreted does appear to create a genuine issue of
material fact under prevailing legal standards as to whether Ordinance 99-18
furthers the County’s asserted interests.
46
Significantly, the County has not attempted to counter the Adult Lounges’
evidence with local studies of its own. We are not dealing, therefore, with a case
involving a battle of competing experts. Rather, as the record now stands, we have
before us an ordinance adopted only on the basis of speculative findings and
outdated, foreign studies whose relevance to local conditions appears questionable
in light of current data Appellants have placed in the record suggesting that
plaintiffs’ businesses, which have operated continuously in Manatee County for
over fifteen years, do not cause secondary effects. Under these circumstances, we
cannot credit the County with complying with Renton’s narrow tailoring
requirement, which requires that a secondary effects ordinance be drawn to affect
only that category of business “shown to produce the unwanted secondary effects.”
Renton, 475 U.S. at 52 (emphasis added). See also Flanigan’s, 242 F.3d at 986-97
(finding it “unreasonable for Defendants to rely on outdated, foreign studies
concerning secondary effects when the county’s own current, empirical data
conclusively demonstrated that such studies were not relevant to local conditions,”
especially where adult businesses were not “a recent addition to Fulton County
neighborhoods” but “have continually operated . . . for nearly a decade”); id at 987
(affirming that “the constitutionality of an ordinance will depend on local
conditions”).
47
We note that the fact that the Adult Lounges have managed, in their “as
applied” challenge, to cast doubt on the County’s basis for enacting Ordinance 99-
18 does not mean the ordinance could not ultimately survive intermediate scrutiny.
Rather, under Alameda Books, at this point summary judgment is inappropriate and
“the burden shifts back to the municipality to supplement the record with evidence
renewing support for a theory that justifies its ordinance.” Alameda Books, 122
S.Ct. at 1736 (plurality opinion) (citing Pap’s A.M., 529 U.S. at 298); see also id. at
1742-44 (Kennedy, J., concurring). Thus, the County must be given the
opportunity to supplement the record in this manner, and the District Court, which
did not have the benefit of Alameda Books when it granted the County’s motion for
summary judgment, should consider any additional evidence in the first instance.
At trial, in keeping with Alameda Books’ burden-shifting analysis, the
District Court must determine whether the County’s additional evidence “renew[s]
support for a theory that justifies its ordinance.” 122 S.Ct. at 1736. Stated
otherwise, in light of our finding that the Adult Lounges have managed to cast
direct doubt on the County’s rationale for adopting Ordinance 99-18, the District
Court must decide by a preponderance of the available evidence (including
whatever additional evidence the County places in the record) whether there
remains credible evidence upon which the County could reasonably rely in
48
concluding that the ordinance would combat the secondary effects of adult
entertainment establishments in Manatee County. The burden lies with the County
in this regard. However, the District Court should be careful not to substitute its
own judgment for that of the County. The County’s legislative judgment should be
upheld provided that the County can show that its judgment is still supported by
credible evidence, upon which the County reasonably relies.
3. O’Brien’s Fourth Prong
O’Brien’s fourth prong requires that any incidental restriction on alleged
First Amendment freedoms be no greater than is essential to further the
government’s interest. O’Brien, 391 U.S. at 376. In Pap’s A.M., the Court upheld
a public nudity statute that permitted erotic dancers to wear at least pasties and a G-
string, holding that it satisfied this part of the O’Brien test. 529 U.S. at 301. The
Court also upheld a similar statute in Barnes. 501 U.S. at 570, 587. Here,
however, Manatee County went beyond the regulations at issue in Pap’s A.M. and
Barnes, according to which pasties and a G-string are sufficient to distinguish a
state of lawful dress from unlawful nudity. Instead, the County has defined
“nudity” more expansively to encompass the wearing of any clothing covering less
49
than one-third of the buttocks or one-fourth of the female breast.22 The County has
also expressly forbidden the wearing of “G-strings, T-backs, dental floss, and
thongs.” In other words, the County has effectively redrawn the boundary between
nudity and non-nudity, thereby prohibiting erotic dancers from wearing the amount
of body covering the Court found to be consistent with the First Amendment in
Pap’s A.M. and Barnes.
The question we face is whether the County’s prohibition, which presumably
impacts the expressive component of erotic dancing, is no greater than essential to
further the County’s interest in preventing secondary effects. In Pap’s A.M., the
Court determined that this issue required the balancing of competing interests, and
it concluded that a pasties and G-string requirement survived intermediate scrutiny
because it “leaves ample capacity to convey the dancer's erotic message.” 529 U.S.
at 301. The Court further emphasized that:
[E]ven if Erie’s public nudity ban has some minimal effect on the erotic
message by muting that portion of the expression that occurs when the last
stitch is dropped, the dancers at Kandyland and other such establishments are
free to perform wearing pasties and G-strings. Any effect on the overall
expression is de minimis.
Id; see also id. at 294.
Applying these considerations to Ordinance 99-18, we think it significant
22
See supra note 2.
50
that the Supreme Court has emphasized that local governments “‘must be allowed a
reasonable opportunity to experiment with solutions to admittedly serious
problems.’” Id. at 301 (quoting Renton, 475 U.S. at 52). Nevertheless, we find it
difficult to conclude on this record that preventing erotic dancers from wearing G-
strings, thongs, pasties and the like has only a “de minimis” effect on the
expressive component of erotic dancing or “leaves ample capacity to convey the
dancer’s erotic message.” Id. On the contrary, because erotic dancers in Manatee
County are not “free to perform wearing pasties and G-strings,” id., arguably, the
County’s prohibition could significantly impact that message.
This concern about the scope of Ordinance 99-18, although raised squarely
by the Adult Lounges, has not yet been adequately addressed either by the
Defendants or by the District Court. Because of the importance of this issue, we
are reluctant to rule without further argument from the parties and findings by the
District Court. On remand, therefore, the parties and the District Court should also
consider whether Ordinance 99-18 would fail under intermediate scrutiny because
it proscribes too much protected expression and fails to preserve “ample capacity to
convey the dancer’s erotic message.” 529 U.S. at 301. Cf. Ranch House, 238 F.3d
at 1285-86 (11th Cir. 2001) (remanding under similar circumstances with specific
51
guidance to the District Court as to O’Brien’s fourth prong).23
In sum, we hold that the District Court erred by granting summary judgment
to the County as to Ordinance 99-18. We therefore reverse the court’s order with
respect to this ordinance as well.24
IV. CONCLUSION
The District Court granted summary judgment to Defendants on all grounds
with respect to both Ordinance 98-46 and Ordinance 99-18. For the foregoing
reasons, we REVERSE the grant of summary judgment on the Plaintiffs’ First
Amendment freedom of expression claims with respect to both ordinances and
REMAND the case to the District Court for further proceedings consistent with this
opinion.
23
The County argues that Café 207, Inc., v. St. John’s County, 66 F.3d 272 (11th Cir. 1995),
which affirmed and adopted the reasoning of a trial court judgment validating a similar
ordinance, requires us to uphold Ordinance 99-18. See Café 207, Inc., v. St. John’s County, 856
F. Supp. 641 (M.D. Fla. 1994). However, Café 207 was decided before Pap’s A.M., where the
Supreme Court clarified for the first time that nudity ordinances must leave ample capacity for
erotic dancers to convey their erotic message, and Alameda Books, in which Justice Kennedy’s
controlling opinion emphasized that secondary effects ordinances must accomplish their goal of
combating secondary effects “while leaving the quantity and accessibility of speech substantially
intact.” 122 S.Ct. at 1742.
24
The Adult Lounges also contend that Ordinance 99-18 is unconstitutionally overbroad, in that
it sweeps within its ambit protected speech of persons not before the Court; and
unconstitutionally vague, in that it fails to adequately define its operative phrases, thus leaving
persons of common intelligence to guess as to the ordinance’s meaning and differ as to its
application. However, since we reverse the District Court’s grant of summary judgment with
respect to Ordinance 99-18 on independent grounds, we need not decide these issues at this time.
For the same reason, we decline to address the Adult Lounges’ additional claims that Ordinance
99-18 violates the Fifth Amendment, the Contract Clause, and various provisions of Florida law.
EDMONDSON, Chief Judge, concurs in the result.
53
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2003-07-15
Citations: 337 F.3d 1251
Copy Citations