Lakeland Lounge of Jackson, Inc. v. City of Jackson, Mississippi

POLITZ, Chief Judge,

dissenting:

I must respectfully dissent because I find that the ordinance of the City of Jackson, Mississippi violates the first amendment. The ordinance defines its regulatory scope on the basis of “adult” content and is therefore not content-neutral; it may only be accorded the deferential review given content-neutral regulations if it meets the requirements of a time, place, and manner restriction. 5 In my view, these requirements are not met. The Jackson City Council has not demonstrated that its predominant intent was to control negative secondary effects of sexually oriented businesses. In addition, even assuming the ordinance to be a content-neutral restraint of free speech, it fails because alternative channels of communication of the protected speech at issue here are unavailable.

The ordinance does not qualify for the deferential review accorded content-neutral restraints because it was not “designed to combat the undesirable secondary effects” of the regulated business. 6 Unless the predominant concern of the regulators was to prevent these alleged secondary effects, we should not base our review of the ordinance on the presumption that it is a time, place, and manner restriction unrelated to the suppression of free expression. 7 To assess the regulators' predominant concern, “we intrude into the regulatory decision process to the extent that we insist upon objective evidence of purpose — a study or findings.” 8 Jackson had the burden of establishing that evidence before the city council entitled the council to reach its conclusion. 9 The test does not inquire into the council members’ subjective beliefs but, rather, searches the legislative history of the ordinance for “an actual basis” upon which an objective regulator could assess the purported secondary effects. 10 Although the City need not conduct its own independent study and is certainly entitled to rely upon empirical data from other municipalities, the regulators must have such studies — and not just the ordinance itself— before them. 11

Uncontroverted testimony before the district court reveals that the Jackson Planning Board submitted no written materials to the city council. The ordinance preamble declares that the City of Jackson intended to regulate secondary effects, yet the city council members did not see— much less rely upon — the data which purportedly engendered their alleged “predominant” concerns. According to the record, four of the seven city council members who *1262 voted for the ordinance did attend a public meeting of the Jackson Planning Board, but the minutes of that meeting and the testimony before the trial judge did not reflect that any empirical study data were orally recited or meaningfully discussed. 12 One city council member, Margaret C. Barrett, did receive some materials regarding secondary effects from her constituents, but she did not circulate this data to her colleagues on the council. Because the council did not examine even an extract of the studies upon which its predominant concerns purportedly rested, I find no basis to justify reviewing this ordinance as a content-neutral regulation. The City used the pretext of technical code violations to attempt to close Jackson’s first adult entertainment club. It would appear that the ordinance’s preamble is but another such.

The facts of this case stand in stark contrast to those reviewed by the SDJ, Inc. court, wherein a specially compiled report of community effects was filed with and adopted by the city council. 13 Similarly, the Renton Court quotes the material before the Renton City Council which described secondary effects of adult entertainment and study results. 14 Indeed, the Basiardanes v. City of Galveston 15 court objected that “there [was] no evidence in the record that the Galveston City Council passed [the ordinance] after careful consideration or study of the effects of adult theaters on urban life.” 16

In addition, I am not persuaded that the Jackson ordinance passes constitutional muster even as a time, place, and manner restriction. Even a content-neutral ordinance regulating protected speech must be narrowly tailored to serve a substantial governmental interest and must allow for reasonable alternative avenues of communication. 17 The Jackson ordinance bans “[a]dult arcades, adult bookstores, adult cabarets, adult entertainment establishments, adult motels, and adult motion picture theaters” from all areas except those zoned as light industrial. In the light industrial zones such establishments may not be located within 250 feet of each other or 1,000 feet from any residentially zoned property, church, school, park, or playground. By the City’s own account to the district court, only 879 acres of Jackson’s approximate 70,400 acres are available for adult entertainment uses. 18 This is approximately 1.2 percent of the land mass of the *1263 City, as compared with the more than 5 percent which was available in Renton. 19 In the district court the City argued that 21 general areas were available; it presented testimony regarding 32 specific sites. By contrast, the SDJ, Inc. court, which admittedly analyzed an ordinance in the much larger city of Houston, nonetheless reviewed stronger evidence. One expert responsible for analyzing only 20 percent of the City specified 40 available sites in this portion alone. Other evidence demonstrated that at least 100 and, perhaps, up to tens of thousands of alternative sites existed. 20 Accordingly, accepting Jackson’s argument at full face value, its list of the available sites is less than impressive.

From my review of the record I cannot, however, accept the City’s list of sites. I cannot because I cannot justify dismissing the district court’s factual findings in this case. The district court found only four available areas containing eight to ten prospective sites. This finding is manifestly not clearly erroneous. Although the court makes one reference to macroeconomics, which was discussed in the vacated portion of Woodall v. City of El Paso, 21 the trial court also discounted proposed sites due to physical impossibilities. The district court does not individually apply each reason for unavailability to each site rejected. But the district court’s detailed discussion of the available locales nonetheless reveals that it did not place upon the City a duty of providing “sites at bargain prices.” 22 For example, the trial court considered warehouses as available because they could be converted to lounges. It also considered a lot next to a slaughterhouse an available adult entertainment site. Referencing the Renton economic rule, the trial court specifically discounted Lakeland’s arguments that lack of parking rendered certain business district sites inadequate.

At the very least, I must conclude that this case should be remanded for consideration pursuant to our modifications of Woo-dall. The record clearly shows that physical impossibility, rather than the Woodall macroeconomics theory, occasioned a discounting of a majority of the City’s proposed 879 acres. The district court described one 300-aere site which lacked physical access as “swampland.” Another large site in the northwest sector of the City was described as a floodplain. The testimony of Lakeland’s expert also revealed that other alleged sites were adjacent to high voltage power lines or within 1,000 feet of a prohibited use. I therefore must disagree with the majority’s conclusion that “nothing in the instant record indicates that all or even most of the locations are inaccessible, unsafe, or without utilities or infrastructure or that legal obstacles exist to their use.”

I respectfully dissent.

.See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986); see also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir.1988) ("The [Renton] Court submitted the Renton ordinance to the analysis reserved for content-neutral restraints, although the ordinance marked businesses by the content of their product.”); Note, The Content Distinction in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904, 1907-08 (1989) (explaining that Renton applies a "content-neutral” standard of review to "content-based time, place, and manner regulations").

The Supreme Court in Barnes v. Glen Theatre, Inc., -U.S.-, 111 S.Ct. 2456 , 115 L.Ed.2d 504 (1991), analyzed a public exposure statute pursuant to the four-part test enunciated in United States v. O'Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968). The O'Brien test applies to statutes without content-based references; it includes an analysis of the extent to which the governmental interest is related to the suppression of free expression. The Barnes decision did not suggest an expansion of Renton’s looser scrutiny for content-based statutes; the decision even states that the time, place, and manner test was originally developed for expression taking place in a "public forum” and that Renton was “at least one occasion” in which the Court deviated from this application. — U.S.-, 111 S.Ct. at 2460 .

. City of Renton, 475 U.S. at 49 , 106 S.Ct. at 929 .

. Id. at 47, 48 , 106 S.Ct. at 928, 929 ; SDJ, Inc., 837 F.2d at 1273 (quoting City of Renton’s reference to the legislatures’ "predominant concern”).

. SDJ, Inc., 837 F.2d at 1274 .

. City of Renton, 475 U.S. at 51-52 , 106 S.Ct. at 931 ; SDJ, Inc., 837 F.2d at 1274 .

. SDJ, Inc., 837 F.2d at 1274 .

. Id. ("[W]e are persuaded that the City Council considered those studies themselves and not merely the ordinances for which the studies provided support.” (emphasis added)).

.The Minutes of the January 21, 1992 Jackson City Planning Board Public Hearing reflect that Quintus Greene, Director of the Office of Planning, made the following comments:

Mr. Greene gave a brief summary of the research and intent that have gone into drafting the proposed adult entertainment amendments to the Zoning Ordinance. He mentioned that adult entertainment establishments would be permitted by right in 1-1 (Light) Industrial Districts and would be permitted by Use Permit in the C-4 Central Business District. He noted these regulations would prohibit such uses within 1000 feet of any residentially zoned property, church, school, park or playground. Also, no adult entertainment establishment could be located within 250 feet of any other such use. He displayed a map of the City which depicts all of the 1-1 Districts and the C-4 District, where such uses could be allowed.

The district court very accurately described the testimony evidence regarding the hearing:

The only testimony that the Court has concerning what went on at the hearing came from the testimony of Quintus Greene of the City Planning and Zoning staff, and Mrs. Barrett, the councilwoman. This testimony showed no consideration of the materials sent by the American Planners Association nor any other type of material that either the City Planning and Zoning people had or that Mrs. Barrett herself had....

There is no testimony whatsoever that the City Council members themselves ever looked at the studies relied upon by its staff, or received any written summary of those studies, or received any oral summary of those studies.

(Emphasis added.) The majority would ignore these factual findings which wear the buckler and shield of Fed.R.Civ.P. 52(a).

. See SDJ, Inc., 837 F.2d at 1272 .

. See City of Renton, 475 U.S. at 51 , 106 S.Ct. at 931 .

. 682 F.2d 1203 (5th Cir.1982).

. Basiardanes, 682 F.2d at 1215 .

. City of Renton, 475 U.S. at 50 , 106 S.Ct. at 930 ; SDJ, Inc., 837 F.2d at 1273 .

. The City had originally argued that a ceiling of 1,043 acres were available but retreated from this position when faced with evidence regarding a restrictive covenant on 163 acres.

. City of Renton, 475 U.S. at 53 , 106 S.Ct. at 932 .

. SDJ, Inc., 837 F.2d at 1277 .

. 950 F.2d 255 (5th Cir.), modified, 959 F.2d 1305 (5th Cir.1992).

. City of Renton, 475 U.S. at 54 , 106 S.Ct. at 932 .