Petition for Writ of Certiorari — Manatee County v. Peek-A-Boo Lounge of Bradenton, Inc.

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031011 JAN 1 2 2004

No. 03- —-—

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In the

Supreme Court of the Anited States

MANATEE COUNTY,

Petitioner,

PEEK-A-Boo LOUNGE OF BRADENTON, INC., ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

TeEppD N. WILLIAMS Scott D. BERGTHOLD

County ATTORNEY Law Orrice oF Scott D.

James A. MINIX BERGTHOLD, P.L.L.C.

SENIOR Asst. COUNTY 6830 McCutTcHEON Roap

ATTORNEY CHATTANOOGA, TN 37421

Counsel of Record (423) 899-3025

P.O. Box 1000 (423) 899-3029 FAX

BRADENTON, FL 34206

(941) 745-3750

(941) 749-3089

JaNuARY 12, 2004

Counsel for Petitioner

Becker Gallagher Legal Publishing, Inc.

800.890.5001

QUESTIONS PRESENTED

This Petition involves a challenge by two sexually-oriented

“adult dancing establishments,” as defined in Chapter 2-2.5 of

the Manatee County Code (the “Adult Entertainment Code”),

to Manatee County Ordinances No. 98-46 and No. 99-18.

Ordinance 98-46, an amendment to the County’s preexisting

Adult Entertainment Code, provides interior layout

requirements for adult dancing establishments. The district

court, concluding that Ordinance 98-46 had “no conceivable

impact on the expressive element of nude dancing,” Pet. App. —

64a, upheld the bulk of its provisions. The Eleventh Circuit,

viewing Ordinance 98-46 in isolation from the legislative

findings stated in the Adult Entertainment Code (§ 2-2.5-2),

invalidated the Ordinance for lack of pre-enactment secondary

effects evidence. Ordinance 99-18, modeled after the law

upheld in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991),

prohibits public nudity. Based on the Ordinance’s legislative

record, the district court concluded that the County had “more

than met its burden,” Pet. App. 62a, of providing secondary

effects evidence and granted the County summary judgment.

The Eleventh Circuit reversed and remanded for trial.

The Questions Presented are:

1. Did the Court of Appeals err in holding Ordinance 98-46

unconstitutional for an alleged lack of a pre-enactment

secondary effects record specific to that Ordinance?

2. Did the Court of Appeals err in reversing summary

judgment in favor of the County on Ordinance No. 99-18, and

in holding that now “summary judgment is inappropriate” on

the grounds that plaintiffs’ evidence, pertaining largely to their

particular businesses, supposedly negated the legislative record

upon which the Ordinance was based?

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceeding below include Manatee

County, a political subdivision of the State of Florida,

Peek-A-Boo Lounge of Bradenton, Inc., a Florida

corporation, and M.S. Entertainment, Inc., a Florida

corporation.

ill

TABLE OF CONTENTS

ESS rr eee eee i

Parties to the Proceedings Below ............... ii

EE ee ili

BE ESS ne Vv

Petition for a Writ of Certiorari ................ 1

es a yb Sek Mack eae oe 1

Constitutional, Statutory, and Regulatory Provisions... 1

I OG aS re ae naar ]

I 5 aR ars cy ne ae l

Reasons for Granting the Writ ................. 11

I. The Eleventh Circuit’s “Pre-enactment”

Secondary Effects Requirement Conflicts with the

Law of Several Circuits and of This Court .... 12

II. The Eleventh Circuit’s Holding that Legislative

Justification for a Public Nudity Ordinance is a

Question of Fact that Must Be Resolved at Trial,

Based on “Local Conditions,” Under a

“Preponderance of Evidence” Standard, Conflicts

with Decisions of the Seventh and Eighth Circuits

ee wkcaseeuwe 16 —

RS gS 24

TABLE OF CONTENTS—Continued

Appendix

Appendix A - Eleventh Circuit Order Denying

Rehearing - 10/16/03 ...........-+2 eee eees la

Appendix B - Eleventh Circuit Opinion -

GUD nh ko eo Eo ke ees Cee Oe 3a

Appendix C - District Court Final Summary

Judgment Order - 04/29/02 .........--+5+-. 50a

Appendix D - District Court Order on Defendant’s

Motion for Summary Judgment - 03/28/02 ...... 52a

Appendix E - Ordinance No. 98-18 ..........- 75a

Appendix F - Ordinance No. 98-14 .......... 86a

Appendix G - U.S. Const. First Amendment .... 9la

Appendix H - Manatee County Code

ee aS Oe > ra eer ers ewe 92a

TABLE OF AUTHORITIES

Cases Page

Barnes v. Glen Theatre, Inc..,

S04 0.5, Fa Cees ks 6 4a 2 See eee, passim

Ben Rich Trading Co. v. City of Vineland,

136 F.3d 855 GOA. TRPT) nce ce seo e wes 13

BGHA, LLC v. City of Universal City,

340 U.S. 295 (Sth Cir. 2003) ........... 13,-14

California v. LaRue, 409 U.S. 109 (1972) ..... 20

Center for Fair Public Policy v. Maricopa

County, 336 F.3d 1153 (9th Cir. 2003) ... 13, 14

Chesapeake B & M v. Harford County,

58 F.3d 3005 CO Cor. TGS) «wc cece eens 13

Christy v. City of Ann Arbor,

S24 F.2d 469 (Gt Cir. 1967) . . 5 2c ec nes 12

City of Erie v. Pap’s A.M.,

SIPEG) S. TTI «cc ec we ee utwsen passim

City of Los Angeles v. Alameda Books, Inc.,

S35 U.S. 425 GD ow ki ee ee ee eS passim

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 4 GR ck eve ae seen ees passim

Clark v. Community for Creative Non-Violence,

466 U.S. BOB (TGS . cw. vk ce ee nes Coenen 22

D.H.L. Assocs. v. O’Gorman,

199 F.3d 50 (1st Cir. 1999) ..........--6-- 13

DiMa Corp. v. Town of Hallie, _

185 F.3d 823 (7th Cir. 1999) ........... 13, 14

DLS, Inc. v. City of Chattanooga,

107 F.3d 403 (6th Cir. 1997) ........... 12, 14

Flanigan’s Enterprises, Inc., v. Fulton County,

Ga., 242 F.3d 976 (11th Cir. 2001)....... 10, 11

G.M. Enterprises v. Town of St. Joseph,

2003 U.S. App. LEXIS 23936 (7th Cir. 2003)

ne are ees ee ee eee 3, 16, 17

Heideman v. South Salt Lake City,

348 F.3d 1182 (10th Cir. 2003) ...........-- 14

J & B Entertainment, Inc. v. City of Jackson,

152 F.3d 362 (Sth Cir. 1998) ... 0.2... 2 eee 13

Lady J. Lingerie, Inc. v. City of Jacksonville,

176 F.3d 1358 (11th Cir. 1999) ........ 2,9, 15

Lady J. Lingerie v. City of Jacksonville, *

973 F.Supp.2d 1428 (M.D. Fla. 1997) ...... 4,15

United States v. O’Brien, :

Dee US. B67 (IGG) .. 2 6 i cs ees 8, 9, 14, 16, 20

Phillips v. Borough of Keyport,

107 F.3d 164 (3d Cir. 1997) .......-- 6, 12, 14

Vii

SOB, Inc. v. County of Benton,

317 F.3d 856 (8th Cir. 2003) ....... 3, 13, 16, 18

Turner Broadcasting System, Inc. v. F.C.C.,

$20 U.S. 180 C1997)... cece eees 3, 16, 20, 21

United States v. Albertini, 472 U.S. 675 (1985) . . 22

Ward v. Rock Against Racism,

401 GUS. TE1 CIFGD) ow ce ces cn nenes 14

Young v. American Mini Theatres, Inc.,

S27 US. FOC cc ee csc neee wrens 20

Constitutional Statutory and Regulatory Provisions

cf ge SS err er ee ee passim

y Be Meme Sef) rrr re er rere ss 1

S'S Lae fer ee ee er ee 5

Manatee County Ordinance No. 98-18 ...... passim

Manatee County Ordinance No. 98-46 ...... passim

Other Authority

Bryant Paul, Daniel Linz, and Bradley Shafer,

Government Regulation of “Adult” Businesses

Through Zoning and Anti-Nudity Ordinances:

Debunking the Legal Myth of Negative Secondary

Effects, 6 COMM. L. & POL. 355 (2001) .......- 18

PETITION FOR A WRIT OF CERTIORARI

Manatee County respectfully petitions for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The Eleventh Circuit’s opinion is published at 337 F.3d

1251, and is included herein at Pet. App. 3a-49a. The

Eleventh Circuit’s Order denying rehearing appears at Pet.

App. la-2a. The district court’s summary judgment opinion,

Pet. App. 52a-74a, and final summary judgment order, Pet.

App. 50a-51a, are unpublished.

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS

The appendix, at Pet. App. 75a-91a, reproduces Manatee

County Ordinance No. 99-18, Ordinance No. 98-46, and the

First Amendment to the United States Constitution.

JURISDICTION

The Eleventh Circuit denied petitioner’s timely Petition

for Rehearing and for Rehearing En Banc on October 16,

2003. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATEMENT

This case presents two important and recurring questions

concerning local regulation of sexually oriented businesses.

The first is whether a regulation of the manner in which adult

businesses are operated is rendered invalid in toto because the

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government relies upon secondary effects evidence in

defending the regulation, but does not build a specific

legislative record concerning secondary effects prior to

enactment of the legislation. The Eleventh Circuit held that

this Court’s decision in Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986), required it to invalidate the County’s

interior configuration requirements for strip clubs,

notwithstanding the fact that another panel of the Eleventh

Circuit, in a reported decision, had previously upheld nearly

identical regulations. See Lady J. Lingerie, Inc. v. City of

Jacksonville, 176 F.3d 1358, 1369 (11th Cir. 1999). Because

the Eleventh Circuit’s “pre-enactment” evidentiary

requirement is in conflict with this Court’s decisions in

Renton, supra, and Barnes v. Glen Theatre, Inc., 501 U.S.

560 (1991), as well as decisions of the Third, Fourth, Fifth,

and Sixth Circuits, this Court should grant certiorari.

The second question, which involves a public nudity

regulation similar to those upheld in Barnes and City of Erie

v. Pap’s A.M., 529 U.S. 277 (2000), is also important. The

question asks whether a local government, even when it relies

on pre-enactment evidence “reasonably believed to be relevant

to the problem that the [government] addresses,” Renton, 475

U.S. at 51-52, is nevertheless required to go to trial over its

legislative justification if the plaintiffs’ experts claim that the

government’s legislative record is not “scientific” or that the

plaintiffs’ particular businesses do not cause the harms

targeted by the regulation. The Eleventh Circuit held: that

such testimony suffices to “cast direct doubt” on the County’s

legislative justification under City of Los Angeles v. Alameda

Books, 525 U.S. 435, 438 (2002), that now “summary

judgment is inappropriate” for the question of legislative

justification, and that at trial, the district court must decide

“by a preponderance of the available evidence” whether

“there remains credible evidence upon which the County

could reasonably rely.” Pet. App. 45a-46a (emphasis

supplied). |

In holding that the constitutionality of an ordinance will

depend upon “local conditions,” id., the appeals court

imposed an empirical proof requirement rejected in each of

this Court’s previous adult business cases, see, e.g., City of

Los Angeles, 525 U.S. at 439. In doing so, the panel

transformed the question of legislative justification for a local

ordinance from an issue of law into an issue of adjudicative

fact that must be determined at trial instead of summary

judgment. But see Turner Broadcasting System, Inc. v.

F.C.C., 520 U.S. 180, 211 (1997) (holding that summary

judgment is appropriate in First Amendment case, even when

evidence concerning legislative justification is in conflict).

The Eleventh Circuit’s conclusions are not only contrary to

this Court’s precedents, but also create a conflict with

decisions of the Seventh and Eighth Circuits. G.M.

Enterprises v. Town of St. Joseph, 2003 U.S. App. LEXIS

23936, *21-23 (7th Cir. 2003) (holding that summary

judgment was appropriate, notwithstanding _ plaintiffs’

allegedly conflicting evidence); SOB, Inc. v. County of

Benton, 317 F.3d 856 (8th Cir. 2003) (same).

This Petition presents the Court with an opportunity to

address both of these issues and resolve the confusion in the

lower courts concerning judicial superintendence of legislative

judgments in this area.

* * * *

On July 20, 1984, the Manatee County Board of County

Commissioners passed Ordinance 84-11, known as the Adult

Entertainment Code, to regulate the conduct within and the

operation of sexually oriented businesses in the County. That

Ordinance, codified as Chapter 2-2.5 of the Manatee County

Code, identifies several legislative findings pertinent to the

County’s purpose for adopting the Adult Entertainment Code,

as well as the secondary effects evidence upon which those

findings are based. Pet. App. 92a-95a.

1. OnNovember 24, 1998, the Manatee County Board of

County Commissioners conducted a public hearing on

Ordinance 98-46, an ordinance to amend Chapter 2-2.5 to

establish interior configuration requirements for adult dancing

establishments. Pet. App. 34an.15. The Ordinance tracked,

almost verbatim, an ordinance from the City of Jacksonville,

Florida, which had previously been upheld against

constitutional attack. Lady J. Lingerie v. City of Jacksonville,

973 F.Supp.2d 1428, 1444-1445 (M.D. Fla. 1997) (upholding

requirement of minimum room size for adult dancing

establishments and noting that “Plaintiffs’ own witnesses

testified that masturbation took place in the modeling rooms,

and was in fact anticipated by the owners that it would occur,

as evidenced by their providing tissues and lotion for that

purpose”). During the hearing, the Board of Commissioners

discussed the Ordinance, including the fact that the Ordinance

was patterned after Jacksonville’s ordinance, which had

recently been validated in federal court. Pet. App. 64a. At

the conclusion of the hearing, the Board adopted Ordinance

98-46 as part of Chapter 2-2.5, the Adult Entertainment Code.

Id.

Approximately four months later, on March 23, 1999, the

Board of County Commissioners held a public hearing on

Ordinance 99-18 - a separate regulation, not part of the Adult

Entertainment Code - which prohibits nudity in public places,

unless such nudity is “otherwise protected by the United

States or Florida Constitution[s].” The preamble to the

Ordinance expresses specific reliance upon Barnes v. Glen

Theatre, Inc., 501 U.S. 560 (1991), which upheld a similar

regulation against constitutional attack. Pet. App. 78a.

The Board also considered a wealth of relevant evidence

concerning the secondary effects of nude dancing, including

a 1991 document from neighboring Pinellas County

describing the illicit activities occurring in erotic dancing

facilities. That document describes prostitution, sexual

contact, and lewd acts occurring in adult dancing

establishments just to the north of Manatee County. Pet.

App. 60a. Additionally, the Board considered the secondary

effects of adult businesses experienced by several other

municipalities, including Phoenix, Arizona, Indianapolis,

Indiana, Seattle, Washington, and four cities in Texas -

Amarillo, Austin, Beaumont, and Houston. /d.

Respondents also submitted information to the Board at

the public hearing on Ordinance 99-18. Their packet included

documents which they claimed us proof that their individual

businesses did not cause the secondary effects associated with

nude dancing as demonstrated in the cases and reports before

the Board. Pet. App. 60a-61a. The parties presented

numerous letters in support of the Ordinance and in

opposition to the Ordinance. Pet. App. 61a. At the

conclusion of the hearing, the Board voted to adopt Ordinance

99-18. Id.

2. One month prior to the effective date of the

Ordinances, Respondents filed suit in the district court

pursuant to 42 U.S.C. § 1983. On the County’s motion for

summary judgment, the district court upheld both Ordinances.

In upholding Ordinance 98-46, the district court found that the

physical layout requirements have “no conceivable impact on

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the expressive element of nude dancing.” Pet. App. 64a."

The court also relied upon the Eleventh Circuit’s prior

determination that the interior configuration requirements

serve substantial governmental interests in preventing the

negative secondary effects associated with sexually explicit -

entertainment businesses.” Jd. Inreviewing Ordinance 99-18,

the public nudity ordinance, the district court surveyed the

extensive secondary effects reports compiled during the

Board’s proposal and deliberations. Pet. App. 60a. The

court noted that the secondary effects information includes not

only a number of reports from communities around the

country, but also “a transcript of testimony by a sergeant from

the Pinellas County Sheriff's Office concerning his first-hand

observations of the proliferation of prostitution, sexual

contact, and lewd acts that take place in nude dancing

establishments in Pinellas County.” Jd.

The district court also considered Respondents’

pre-enactment “counter-evidence.” Pet. App. 60-6la. The

court explained that:

| The district court did strike a provision in Ordinance 98-46

that prohibits adult dancing establishments from having “private

rooms” because the term was not defined in the Ordinance. The

County did not appeal that ruling.

2 In discussing the requirement of a substantial government

interest, the district court noted that in defending a secondary

effects ordinance, it is sufficient that the government presents a

“factual basis for [its] legislative judgment ... in court when that

judgment is challenged.’” Pet. App. 59a n.3 (d.c. 6) (quoting

Phillips v. Borough of Keyport, 107 F.3d 164, 178 (3d Cir. 1997)

(en banc) (rejecting pre-enactment evidentiary requirement and

concluding that there is “no such rule in Renton, Mitchell, or any

other governing precedent.”)).

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Those documents included charts that purportedly

reflect an increase in property values for property

located near the Plaintiffs’ businesses. The charts

provide no information concerning the identity of the

sample properties or their proximity to Plaintiffs’

businesses. The documents also include crime

incident lists from the Plaintiffs’ businesses and

surrounding areas. The incident reports show that

crimes including criminal mischief, robbery, battery

and assault have taken place at the Plaintiffs’

businesses and in the purportedly surrounding areas

throughout 1997 and 1998.

Pet. App. 61a (citations omitted; emphasis supplied).’

The district court concluded that the County had “more

than met its burden” of providing a secondary effects

justification and, noting this Court’s decisions in Barnes and

Erie, upheld Ordinance 99-18 on its face and as applied to the

Respondents’ sexually oriented businesses. Pet. App.

61a-62a, 67a.

3. The Eleventh Circuit reversed. The court began by

surveying this Court’s secondary effects cases, noting at

several places in its discussion that the relevant precedents

involved both time, place, and manner regulations and

regulations of expressive conduct designed to further

content-neutral interests. See, e.g., Pet. App. 10a-11a.

Demonstrating the interchangeable nature of the two tests, the

3 The district court did not specifically address the post-

enactment reports from witnesses hired by Respondents. Thus,

judicial findings concerning these reports were made, in the first

instance, by the court of appeals.

court held that “[i]n deciding whether a given ordinance “is

designed to serve’ (Renton) or ‘furthers’ (O’Brien) 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.” Pet. App. 29a.

At the conclusion of its survey of the relevant cases,

however, the court of appeals inexplicably failed to follow

this Court’s precedents and applied different tests to the

County’s two Ordinances regulating nude conduct. Pet. App.

30a. Turning first to Ordinance 98-46, the panel

characterized this amendment to the County’s Adult

Entertainment Code (a licensing law) as a “zoning ordinance”

and held that, as such, the Ordinance was subject to the

analysis set forth “in Renton and Alameda Books.” Pet. App.

31a. Noting that Renton requires only that “whatever

evidence the [local government] relies upon is reasonably

believed to be relevant to the problem the [government]

addresses,” the panel nevertheless concluded that such

reliance, if made only when a regulation is challenged, is

4 Specifically, the panel’s analysis of Ordinance 98-46, which

imposed manner regulations on nude dancing facilities, completely

ignored Barnes and Erie - the seminal nude dancing cases. These

cases are Critical to the “pre-enactment evidence” issue, because in

Barnes, this Court upheld a nude conduct regulation, as applied to

adult businesses, in the absence of any legislative record at all. 501

U.S. at 568 (1991) (Souter, J., concurring in judgment) (noting that

“Indiana does not record legislative history, and the State’s highest

court has not shed additional light on the statute’s purpose”).

Similarly, in Erie, this Court upheld a prohibition on public nudity

based on the city’s legislative findings (without extrinsic evidence)

and then noted that the city’s reliance on prior judicial decisions

describing secondary effects was also sound. 529 U.S. at 296-297.

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constitutionally insufficient. Pet. App. 32a. Further, the

panel rejected the County’s pre-enactment reliance on the

district court decision in Lady J. Lingerie. Pet. App. 34a.

Finally, the lower court recognized contrary circuit

authority, but concluded that upholding a regulation based

solely upon post-enactment secondary effects evidence “is

difficult to square with Renton.” Pet. App. 35a-36a.

Noticeably absent from the lower court’s analysis, however,

is any discussion of Barnes, where - in the absence of any

legislative record - the Court applied Renton and upheld a

content-neutral regulation as applied to nude dancing

establishments. 501 U.S. 568 (Souter, J., concurring in

judgment).

In addressing Ordinance 99-18, the panel began by

invoking this Court’s decision in City of Erie, which applied

the analysis first enunciated in O’Brien and later developed in

| Renton and Barnes. The court concluded that “Ordinance

99-18 easily satisfies the first and third prongs of O’Brien”

because the regulation is within the County’s police powers

and because “[t]he Supreme Court has repeatedly held this

type of general ban to be unrelated to the suppression of free

expression.” Pet. App. 38a.

The court of appeals then discussed the evidence from the

Pinellas County Sheriff’s Department and the Pinellas County

Health Department documenting “the proliferation of

prostitution, sexual contact and lewd acts that take place in

nude dancing establishments” as well as the communicable

diseases that are transmitted by the unprotected sexual activity

taking place in those establishments. Pet. App. 39a. Based

on these documents - without reference to the myriad of other

studies in the County’s legislative record - the panel held that

the County’s legislative justifications “satisfy the County’s

pre-enactment burden as set forth in Renton.” Pet. App. 40a.

Next, the Eleventh Circuit held that Respondents had “cast

direct doubt” on the County’s secondary effects rationale - a

rationale upheld by this Court in both Barnes and Erie - by

introducing: (a) affidavits from their witnesses that the

reports in the County’s legislative record lacked “appropriate

research methodology,” id.; see also Pet. App. 42a n.20, and

(b) reports claiming that Respondents’ individual businesses

did not cause secondary effects. Pet. App. 40a-42a.

Interestingly, the panel did not disagree with the district

court’s conclusion that the Manatee County Sheriff's Office

incident reports “show that crimes including criminal

mischief, robbery, battery and assault have taken place at the

Plaintiffs’ businesses and in the purportedly surrounding areas

throughout 1997 and 1998.” Pet. App. 6la (emphasis

supplied).

Rather, the panel apparently accepted Respondents’

comparative-analysis theory of secondary effects, which holds

that secondary effects can be said to exist only when the

problems of adult businesses are worse, by comparison, than

the problems associated with non-adult businesses. In this

vein, the panel required empirical proof of secondary effects,

reiterating that “the constitutionality of an ordinance will

depend on local conditions.” Pet. App. 45a (quoting

Flanigan’s Enterprises, Inc., v. Fulton County, Ga. , 242 F.3d

976, 987 (11th Cir. 2001)). Because of this, the panel

considered it “significant” that the County had not conducted

“local studies of its own” or hired “competing experts” to

defend the legislative justification for its Barnes-type nudity

regulation. Pet. App. 44a. The court of appeals concluded

that it could not “credit the County with complying with

Renton’s narrow tailoring requirement, which requires that a

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secondary effects ordinance be drawn to affect only that

category of business ‘shown to produce the unwanted

secondary effects,’” Pet. App. 44a-45a, suggesting that the

relevant “category” for purposes of Renton, is not the class of

“adult businesses” or even the sub-class of “adult dancing

establishments,” but rather the two adult dancing

establishments in Manatee County. Pet. App. 45a (citing

Flanigan’s, supra, for the proposition that “local conditions”

control the constitutionality of adult business ordinances)

(clarification supplied).

In sum, the court of appeals removed the secondary effects

question from the realm of law and placed it into the realm of

triable fact. Pet. App. 45a. Although noting that the

County’s ordinance might still survive intermediate scrutiny,

the Court reasoned that “under Alameda Books, at this point

summary judgment is inappropriate” and the legislative

justification for the County’s Ordinance must be adjudicated

as a question of fact at a trial. Jd. (citations omitted).

4. After the Eleventh Circuit denied rehearing and

rehearing en banc, Pet. App. 1a-2a, this Petition followed.

REASONS FOR GRANTING THE WRIT

The important grounds for granting certiorari to review

the Eleventh Circuit’s judgment in this case are

straightforward. The circuits are split over each of the

questions presented: (1) whether pre-enactment evidence of

secondary effects is required to sustain a secondary effects

ordinance, and (2) whether a challenge to a local

government’s secondary effects evidence transforms the

question of legislative justification from a matter of law into

an issue of triable fact.

I. The Eleventh Circuit’s “Pre-enactment” Secondary

Effects Requirement Conflicts With the Law of Several

Circuits and of This Court.

The panel below recognized that requiring a

“pre-enactment” secondary effects record - and precluding the

County from defending its ordinance in court without one - is

at odds with the Third Circuit’s en banc decision in Phillips

v. Borough of Keyport, 107 F.3d 164, 178 (3d Cir. 1997) (en

banc) (holding that it is sufficient that the government

demonstrate a “factual basis for [its] legislative judgment ..-

in court when that judgment is challenged”).

The panel, however, failed to recognize that requiring

pre-enactment legislative evidence is also completely contrary

to Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), where

the controlling opinion stated that the “appropriate focus is

not an empirical enquiry into the actual intent of the enacting

legislature, but rather the existence or not of a current

governmental interest in the service of which the challenged

application of the statute may be constitutional.” /d. at 582

(Souter, J., concurring in judgment). Thus, in footnote 16 of

its opinion, the panel relied upon several pre-Barnes circuit

decisions that imposed pre-enactment legislative evidence

requirements for adult business regulations.

In doing so, the panel ignored several post-Barnes

decisions in those same circuits that supersede the earlier

decisions. For example, the panel cites Christy v. City of Ann

Arbor, 824 F.2d 489, 493 (6th Cir. 1987) for support of its

pre-enactment evidence requirement, but this portion of

Christy was expressly overruled when the Sixth Circuit

followed Barnes in DLS, Inc. v. City of Chattanooga. 107

F.3d 403, 411 (6th Cir. 1997) (“[The plaintiffs] cite Sixth

Circuit authority to the effect that the government must show

that the legislature actually relied on evidence of secondary

effects. This argument, however, is foreclosed by Justice

Souter’s concurrence in Barnes”) (citations omitted). The

Fourth, Fifth, Seventh, and Ninth Circuits have also followed

Barnes on this point in subsequent cases. See, e.g.,

Chesapeake B & M v. Harford County, 58 F.3d 1005, 1012

n. 8 (4th Cir. 1995); J & B Entertainment, Inc. v. City of

Jackson, 152 F.3d 362, 371 (Sth Cir. 1998); BGHA, LLC v.

City of Universal City, 340 U.S. 295, 299 (Sth Cir. 2003);

DiMa Corp. v. Town of Hallie, 185 F.3d 823, 830 (7th Cir.

1999); Center for Fair Public Policy v. Maricopa County, 336

F.3d 1153, 1166 n.3 (9th Cir. 2003) (following Seventh

Circuit and Third Circuit and noting that “a record could be

established in the court after legislation is passed and

challenged”) (quoting Ben Rich Trading Co. v. City of

Vineland, 126 F.3d 155, 161 (3d Cir. 1997)).

Thus, while the Second, Tenth, and Eleventh Circuits”

hold that a lack of pre-enactment secondary effects evidence

is fatal to an ordinance, the Third, Fourth, Fifth, Sixth,

Seventh, and Ninth Circuits hold that pre-enactment evidence

is not required so long as the local government justifies its

ordinance when it is challenged in court.

There is no logical way to reconcile the split of authority ~

among the circuits. While the Eleventh Circuit attempted to

> The positions of the First Circuit and the Eighth Circuit are

less clear. The cases cited by the panel below do not squarely —

present the pre-enactment record requirement, but rather conclude,

in a descriptive (rather than prescriptive) sense that the

municipalities in question had pre-enactment evidence that satisfied

Renton. D.H.L. Assocs. v. O’Gorman, 199 F.3d 50, 57-58 (ist

Cir. 1999); SOB, Inc. v. County of Benton, 317 F.3d 856, 862 (8th

Cir. 2003).

distinguish Renton’s time, place, and manner standard from

Barnes’ application of the O’Brien test (by characterizing

Ordinance No. 98-46 as a “zoning ordinance” subject to

Renton, without the gloss of Barnes and Erie), such a

distinction is completely insupportable. As this Court has

recognized, O’Brien analysis is essentially indistinguishable

from time, place, or manner analysis. Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). Perhaps nowhere is the

interchangeable nature of the two lines of analysis more

evident than in this Court’s adult business cases, which, as the

panel recognized, employ the substantial government interest

standard “described in Renton and utilized in Barnes, Pap's

A.M., and Alameda Books.” Pet. App. 29a; see Heideman v.

South Salt Lake City, 348 F.3d 1182, *26-30 (10th Cir. 2003)

(explaining the extent of integration of the O’Brien and Ward

lines of cases).

Moreover, the panel’s distinction - between “adult

business” regulations and generally-applicable nudity

regulations (i.e., Barnes and Erie) - does not solve the circuit

split, given that nearly all of the circuit decisions rejecting the

pre-enactment evidence requirement involve, as Ordinance

98-46 does here, time, place, and manner “regulations [that]

apply only to those businesses purveying a form of sexually

explicit speech.” Pet. App. 3la. See, e.g., DLS, Inc. v. City

of Chattanooga, 107 F.3d 403 (6th Cir. 1997) (involving

stage requirements for adult dancing establishments); Phillips

v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997) (en banc)

(zoning ordinance for adult uses); BGHA, LLC v. Universal

City, City of Universal City, 340 U.S. 295 (Sth Cir. 2003)

(same); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th

Cir. 1999) (hours of operation for adult businesses); Center

for Fair Public Policy v. Maricopa County, 336 F.3d 1153

(9th Cir. 2003) (same).

The circuit conflict is also important, as the view espoused

below and in a plurality of circuits precludes local

governments from producing evidence in support of

regulations which protect public health and safety if specific

evidence was not before the legislative body prior to

enactment. One need look no further than the panel’s

decision in this case to observe the perverse results such a rule

would produce. The federal court for the County’s district

had previously upheld interior configuration requirements like

those contained in Ordinance 98-46, finding that the minimum

room size requirement “allow(s] Plaintiffs the opportunity to

express their erotic message - nude dancing - to a potentially

larger audience without the additional risk of promoting the

unwanted effects of public masturbation and prostitution that

individual performances in a private room encourage.” Lady

J. Lingerie v. City of Jacksonville, 973 F.Supp.2d 1428, 1445

(M.D. Fla. 1997), aff'd 176 F.3d 1358, 1369 (11th Cir.

1999).

Manatee County’s identical regulation, however, was

invalidated for an alleged lack of pre-enactment evidence -

even though it undoubtedly serves the same government

interest that the City of Jacksonville’s regulation serves.

Although the County may remain free to reenact the same

regulations with a more complete pre-enactment legislative

record, such a circular exercise would add nothing to the fact

that interior layout requirements serve the County’s

substantial interests in preventing illicit activities in adult

dancing establishments. Instead, requiring such an exercise

would run headlong into this Court’s oft-repeated statement

that “‘we decline to void [a statute] essentially on the ground

that it is unwise legislation which [the legislature] had the

undoubted power to enact and which could be reenacted in its

exact form if the same or another legislator made a ‘wiser’

speech about it.’” Barnes, 501 U.S. at 583 (Souter, J.,

EE:

concurring in result) (quoting United States v. O’Brien, 391

U.S. 367, 384 (1968)).

Il. The Eleventh Circuit’s Holding that Legislative

Justification for a Public Nudity Ordinance is a

Question of Fact that Must Be Resolved at Trial Based

on Local Conditions, Under a “Preponderance of

Evidence” Standard, Conflicts with Decisions of the

Seventh and Eighth Circuits and This Court.

In applying Alameda Books, at least two circuits have

concluded, contrary to the panel’s decision, that evidentiary

challenges on the grounds advanced below do not preclude

summary judgment in favor of a municipality’s secondary

effects record. SOB, Inc. v. County of Benton, 317 F.3d 856

(8th Cir. 2003); G.M. Enterprises, Inc. v. Town of St. Joseph,

2003 U.S. App. LEXIS 23936 (7th Cir. 2003). This

irreconcilable split of authority warrants this Court’s

intervention because the Eleventh Circuit’s position

transforms a question of law - the constitutionality of a

municipal ordinance - into a question of fact that changes

from city to city based on “local conditions.” The Eleventh

Circuit’s level of judicial superintendence over local

decision-making is, as the Court stated in a case involving

more important First Amendment concerns, “as unreasonable

in the legislative context as it is constitutionally

unwarranted.” Turner Broadcasting System, Inc. v. F.C.C.,

520 U.S. 180, 213 (1997).

In contrast to the Eleventh Circuit’s holding in this case,

the other circuits to address the issue at bar have properly

adhered to this Court’s Renton standard in adjudicating

similar ordinances. In SOB, Inc., the “primary issue” was

“whether Benton County, Minnesota, violated the First

Amendment by enacting an ordinance prohibiting live nude

dancing entertainment when there was evidence presented to

the County Commissioners suggesting that existing adult

entertainment establishments had not adversely affected

nearby property values or crime rates.” 317 F.3d at 858-59.

In that case, as in this one, the County Commissioners relied

upon: (1) “studies by other municipalities,” and (2) “other

evidence of the adverse secondary effects associated with

adult entertainment businesses.” Jd. at 862. Similarly, the

plaintiffs in that case - as in this one - challenged the public

nudity ordinance on two grounds: (1) that the “methodologies

of the secondary effects studies” were unscientific, id. (citing

journal article criticizing the studies), and (2) that their

particular business “had neither caused higher crime rates nor

depressed the value of nearby properties in the time they had

been operating.” Jd.

Rejecting the proposition that the plaintiffs had “cast

sufficient doubt” upon the legislative rationale, the Eighth

Circuit pointed to evidence of prostitution and illicit sexual

activity in the County’s legislative record and noted that the

plaintiffs’ countervailing evidence did not address these

secondary effects, which are common-place in adult

businesses. Jd. at 863. “Moreover,” the court noted,

“zoning restrictions typically impact a broad range of adult

entertainment businesses, whereas a ban on live nude dancing

imposes a de minimis restriction on expressive conduct, while

otherwise ‘leaving the quantity and accessibility of speech

substantially intact.’ Alameda Books, 122 S. Ct. at 1742

(Kennedy, J., concurring).” Jd. Thus, in the Eighth Circuit’s

view, such regulations are constitutional under the First

Amendment and are appropriate for summary disposition. /d.

The Seventh Circuit is in accord. In G.M. Enterprises,

Inc. v. Town of St. Joseph, 2003 U.S. App. LEXIS 23936

(7th Cir. 2003), the court examined-a regulation prohibiting

———

nude dancers from performing within 5 feet of customers and

a prohibition on nudity in alcohol-licensed establishments. In

challenging the municipality’s secondary effects record, which

included numerous studies from other jurisdictions, the

plaintiff submitted: (1) the same journal article submitted in

SOB, Inc., challenging “the methodology employed in the

numerous studies,”° (2) “evidence of an increase of property

values near the Club,” and (3) “evidence that the majority of

police calls in regards to the Club originated during periods

of time when no semi-nude dancing occurred.” Jd. at *20.

In affirming summary judgment for the municipality, the

Seventh Circuit explained that while Alameda Books makes it

clear that deference to the legislative rationale is not

unbounded, it “does not require a court to re-weigh” a

municipality’s legislative evidence. /d. Moreover, even

when contrary evidence “shows that the Board might have

reached a different and equally reasonable conclusion

regarding the relationship between adverse secondary effects

and sexually oriented businesses, it is not sufficient to vitiate

the result reached in the Board’s legislative process.” I/d.

See Bryant Paul, Daniel Linz, and Bradley Shafer,

Government Regulation of “Adult” Businesses Through Zoning and

Anti-Nudity Ordinances: Debunking the Legal Myth of Negative

Secondary Effects, 6 COMM. L. & POL. 355 (2001). The article

is authored by an adult business attorney and two professors who

regularly testify for adult businesses. More important, however, is

the fact that the article is identical in substance to the “study”

submitted by the same authors as an appendix to an amicus brief in

the Erie case. Discussing the report, the plurality opinion stated

that “the study relied on by amicus curiae does not cast any

legitimate doubt” on the Erie city council’s legislative judgment.

See Brief for First Amendment Lawyers Association as Amicus

Curiae 16-23.” 529 U.S. at 298.

Finally, the court rejected the plaintiff's argument that a

municipality cannot establish a reasonable belief in its

secondary effects rationale, as required by Alameda Books

and Renton, unless the studies it relies upon meet a standard

of “methodological rigor.” Jd. at *21-22. This argument, the

Seventh Circuit concluded, “is completely unfounded” under

Renton, especially in light of the fact that Alameda Books

“pluntly rejected” the dissent’s “suggestion that the

municipality be required to present empirical data to support”

its secondary effects rationale. Jd. at *22.

In contrast to these decisions, the Eleventh Circuit both

accepted Respondents’ “methodological rigor” challenge to

the County’s secondary effects evidence and held that the

County’s public nudity regulation must be justified by “local

conditions” (i.e., empirical data from the County). Pet. App.

42a n.20, 44a-45a.

The division of authority among the circuits cannot be

resolved absent this Court’s intervention. Moreover, the

question presented is important, not only because the lower

court’s decision violates established precedents from this

Court, but also because it works a sea change in this area of

law by transforming a question of law into a question of

triable fact for which “summary judgment is inappropriate.”

Pet App. 45a.

Of course, Alameda Books did not hold that conflicting

secondary effects evidence precludes disposition of the issue

on summary judgment. The term “trial” was mentioned only |

once in the case, in dictum contained in the penultimate

sentence of Justice Kennedy’s concurring opinion. 525 U.S.

at 453. This passing mention of the term does not signal a

transformation in this area of law such that the legal

justification for a legislative enactment has now become a

factual issue that must be settled at a trial concerning the

wisdom of the legislature’s judgment.

Indeed, in a case much closer to the core of the First

Amendment, Justice Kennedy’s opinion for the Court held

that summary judgment is proper even when conflicting

evidence challenges a legislative justification under O’Brien.

Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180

(1997) (upholding “must-carry” regulations forcing “cable

television systems to dedicate some of their channels to local

broadcast television stations”). This conclusion follows, a

fortiori, for regulations of public nude conduct “marginally”

protected at the outer ambit of the First Amendment. See City

of Erie, 529 U.S. at 297 (holding that “[bJecause the nude

dancing at Kandyland is of the same character as the adult

entertainment at issue” in Renton, Young v. American Mini

Theatres, Inc., 427 U.S. 50 (1976), and California v. LaRue,

409 U.S. 109 (1972), “it was reasonable for Erie to conclude

that such nude dancing was likely to produce the same

secondary effects”).

Specifically, the Turner court held that in deciding

whether substantial evidence - either anecdotal or empirical -

supports the legislative justification, the role of the judiciary

is limited:

In making that determination, we are not to “re-weigh

the evidence de novo, or to replace Congress’ factual

predictions with our own.” Id. at 666. Rather, we are

simply to determine if the standard is satisfied. If it is,

summary judgment for defendants-appellees is

appropriate regardless of whether the evidence is in

conflict. We have noted in another context, involving

less deferential review than is at issue here, that “‘the

possibility of drawing two inconsistent conclusions

from the evidence does not prevent ... [a] finding from

being supported by substantial evidence.’”

520 U.S. at 211 (citations omitted).

Here, the panel held that the district court must conduct a

trial and determine, “by a preponderance of the available

evidence,” Pet. App. 46a, the reasonableness of the legislative

_ judgment “in light of” the panel’s determination that

Respondents “cast direct doubt” upon the County’s legislative

record with their “methodological rigor” and “local

conditions” arguments. Pet. App. 45a. However,

Respondents did not challenge “in any fundamental way” the

veracity of the facts in the County’s legislative record

documents, but rather “only their significance.” Turner, 520

U.S. at 214. In light of the County’s extensive evidence

concerning the harms of adult businesses in general, and nude

dancing establishments in particular, the court of appeals’

erred in rejecting the reasonable inferences that the Board of

County Commissioners drew from the legislative record. Jd.

at 211.

In Renton, this Court recognized the longstanding

limitations on judicial intervention with legislative judgments

and established a straightforward test for secondary effects

ordinances:

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.

This straightforward statement dispenses with both of the

requirements imposed by the court of appeals. First, as this

Court has repeatedly held, the constitutionality of regulations

concerning the manner in which expression occurs is not

determined by “local conditions,” but that such regulations

“must be evaluated in terms of their general effect.” United

States v. Albertini, 472 U.S. 675, 688-89 (1985) (emphasis

added); id. at 688 (explaining that “the First Amendment does

not bar application of a neutral regulation that incidentally

burdens speech merely because a party contends that allowing

an exception in the particular case will not threaten important

government interests”) (emphasis added) (citing Clark v.

Community for Creative Non-Violence, 468 U.S. 288,

296-297 (1984)).

Second, a local legislative body is not required to

“scientifically” or conclusively prove its legislative

justification through a rigorous, comparative analysis between

adult and non-adult businesses, City of Erie, 529 U.S. at 298,

but rather can rely upon any evidence “reasonably believed to

be relevant to the problem the [local government] addresses.”

Renton, 475 U.S. at 51-52. Here, for example, the panel

below did not question the veracity of either the County’s

evidence pertaining to prostitution and lewd conduct in adult

dancing establishments or the facts underlying the numerous

secondary effects studies in the County’s legislative record.

Nevertheless, the panel accepted Respondents’

broad-stroke arguments that the “only set of empirical studies

relied upon by the County” lacked “appropriate research

methodology” and that Respondents’ particular businesses do

not cause the secondary effects associated with nude

entertainment venues. Pet. App. 42a n.20 (emphasis

supplied). As discussed above, however, nothing in this

Court’s opinions requires empirical proof for the County’s

legislative rationale, let alone empirical proof compiled with

the comparative-analysis “research methodology” proposed

by plaintiffs’ witnesses. Nor is the constitutionality of a time,

place, or manner regulation determined by the current “local

conditions” associated with Respondents’ _ particular

businesses. Indeed, the court of appeals’ reading of Alameda

Books in the context of the County’s public nudity prohibition

not only eviscerates the precedential value of Barnes and Erie,

but also thoroughly undermines the straightforward Renton

standard upon which hundreds of local governments have

relied in enacting ordinances. Moreover, the Eleventh

Circuit’s holding that “summary judgment is inappropriate”

and that a trial is required to test the County’s legislative

justification conflates dicta in Alameda Books with Renton’s

holding that the constitutionality of a local government’s

secondary effects rationale is determined as a matter of law.

475 U.S. at 51-52.

CONCLUSION

Because the court of appeals’ holding is in conflict with

the decisions of other circuits, imposes an improper burden on

local governments, and is constitutionally unwarranted, this

Court should grant the Petition for a Writ of Certiorari.

January 12, 2004

Respectfully submitted,

James A. Minix

Senior Assistant County Attorney

Counsel of Record

Tedd N. Williams

County Attorney

P.O. Box 1000

Bradenton, Florida 34206

(941) 745-3750

(941) 749-3089 Fax

Scott D. Bergthold

Law Office of

Scott D. Bergthold, P.L.L.C.

6830 McCutcheon Road

Chattanooga, TN 37421

(423) 899-3025

(423) 899-3029 Fax

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Case No.: 02-12281-JJ

[Filed Oct. 16, 2003]

PEEK-A-BOO LOUNGE OF BRADENTON, INC.,

a Florida corporation, M.S. ENTERTAINMENT, INC.,

a Florida corporation,

Plaintiffs-Appellants,

MANATEE COUNTY, FLORIDA,

a political subdivision of the State of Florida,

)

versus )

)

Defendant-Appellee. )

)

On Appeal from the United States District Court for the

Middle District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

Before: EDMONDSON, Chief Judge, BARKETT and COX,

Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge in

regular active service on the court having requested that the

court be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure), the Petition(s) for Rehearing En

Banc are DENIED.

ENTERED FOR THE COURT:

/s/

UNITED STATES CIRCUIT JUDGE

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 02-12281

[Filed July 15, 2003]

PEEK-A-BOO LOUNGE OF

BRADENTON, INC., a Florida

corporation, M. S. ENTERTAINMENT,

INC., a Florida corporation,

Plaintiffs-Appellants,

MANATEE COUNTY, FLORIDA,

a political subdivision of the State of

Florida,

Defendant-Appellee.

Nee Ne eee ee ie ie ae ae ee Cl

Appeal from the United States District Court

for the Middle District of Florida

D. C. Docket No. 99-02707-CV-T-25-C

James D. Whittmore, Judge

sian eat acum

Before EDMONDSON, Chief Judge, BARKETT and

COX, Circuit Judges.

OPINION |

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 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 a

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.’

' Ordinance 98-46 amended § 2-2.5-59 of the Manatee Code by

adding the following provisions (g) through (0).

(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

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

establishment 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.

(1) 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.

(0) 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.

defined “nudity” broadly, to include the wearing of any

opaque swimsuit or lingerie covering less than one-third of the

buttocks or one-fourth of the female breast.” Further, the

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 “[eJach 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

ordinance 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

aud 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

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.”

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,° alleging that the ordinances were unconstitutional.

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

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. . . .”

10a

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

1294, 1296 (11th Cir. 2002). The constitutionality of a statute

is a question of law subject to de novo review. See, @.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

lla

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, 535 U.S. 425, 122 S.

Ct. 1728, 152 L. Ed. 2d 670 (2002); City of Erie v. Pap’s

A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265,

(2000); Barnes v. Glen Theatre, 501 U.S. 560, 111 5. Ct.

2456 (1991), 115 L. Ed. 2d 504; City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29

(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 3

A.M. , acase 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,

34 L. Ed. 2d 342, 93 S. Ct. 390 (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 latitude under the

Twenty-first Amendment to control the manner and

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circumstances under which liquor may be sold.* 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.” /d.

However, in Doran v. Salem Inn, 422 U.S. 922, 45 L.

Ed. 2d 648, 95 S. Ct. 2561 (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 > The

Court declared that “although the customary ‘barroom’ type

of nude dancing may involve only the barest minimum of

protected expression, we recognized [in LaRue] that this form

of entertainment might be entitled to First and Fourteenth

Amendment protection in some circumstances.” Jd. at 932.

The Court held that, unlike the regulations at issue in LaRue,

‘ 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.

— °° |

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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.°

2. Young v. American Mini-Theatres

In Young v. American Mini Theatres, 427 U.S. 50, 96 S.

Ct. 2440, 49 L. Ed. 2d 310 (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.’

However, although a majority of the Court agreed that the

zoning ordinance was constitutional, no single rationale for

the decision enjoyed the assent of five Justices.

° In 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484, 116

S. Ct. 1495, 134 L. Ed. 2d 711 (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

“feJntirely apart from the Twenty-First Amendment, the State has

ample power to prohibit the sale of alcoholic beverages in

inappropriate locations.” Jd. 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 US.

at 52.

l4a

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.” /d. 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.” /d. 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, 88 S. Ct. 1673, 20 L.

Ed. 2d 672 (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 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

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interests furthered by this ordinance are both important and

substantial,” since “[w]ithout stable neighoorhoods . . . 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 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”

16a

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, 101 S. Ct. 2176, 68 L. Ed. 2d

671 (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 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.” /d. 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.

4. Renton v. Playtime Theatres, Inc.

; 17a

In Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106S.

Ct. 925, 89 L. Ed. 2d 29 (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.* 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. Jd. 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.” Jd. 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 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

® 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.” Jd. at 53.

18a

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.” Jd. 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, 115 L. Ed. 2d 504 (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. 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.” Jd.

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

19a

that the statute was justified “despite its incidental limitations

on some expressive activity.” Id. at 567.’

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

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.” /d. 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

° 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.” Jd. 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. /d. 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 . . . . [pJublic 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.” Jd. at

572.

20a

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.!° Hence his opinion demands close scrutiny. In

identifying secondary 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

10 In Marks v. United States, 430 U.S. 188, 193, 97S. Ct. 990,

993, 51 L. Ed. 2d 260 (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 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., Vv. 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”)

2la

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. Jd. 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 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.” Jd. 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, 146 L.

Ed. 2d 265 (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.” Jd. at 289.

22a

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. /d. at 296, 301. In connection with the second

O’Brien 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

23a

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 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.” Jd. 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."

'! Justice Souter acknowledged that his partial dissent “rests on

a demand for an evidentiary basis that I failed to make when I

24a

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, 152 L. Ed. 2d 670

(2002), a case in which adult businesses challenged the

constitutionality of a city zoning ordinance forbidding two or

more such businesses .°¢.a 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

judgment motion. Jd. Hence the plurality held that summary

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.”

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. Jd. at 332.

25a

judgment for the adult businesses should be reversed and the

case remanded for further proceedings. Jd. 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."

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 Reni. Id. at 1739. On the issue of

content-neutrality, the O’Conme plurality took the position

2 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.

26a

that the Court should not decide whether the Los Angeles

ordinance was content-neutral since the Ninth Circuit had not

yet passed on the matter. /d. 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.” Jd.

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.” Jd.

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?” Jd. 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 of

suppressing secondary effects, while leaving the quantity and

accessibility of speech substantially intact.” Jd. at 1742. The

key issue, in other words, is “how speech will fare” under the

ordinance: 3

27a

[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 ms 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. Jd. 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.” Jd.

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 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, é.8.,

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).

28a

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; 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

29a

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) 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

30a

evidence that disputes the municipality’s factual findings.”

Id."

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

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 (Sth

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, 109 S. Ct. 2746, 105 L.

Ed. 2d 661 (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 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.

3la

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, Ordinance 98-46 should be subject to strict

or intermediate scrutiny; 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.

'4 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.

———&xoo~---r-srt‘(=;Pr””.!.!”!t”tCt~wd

32a

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 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 grdinance 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

33a

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.”

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, ¢.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 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

34a

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."

In rejecting Appellants’ constitutional challenge, the

District Court expressly considered “the evidence presented

'S 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 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).

, 35a

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] 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”).'° Moreover, we find Phillips’ reasoning

‘6 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, é.g., D.H.L. Assocs., v. O’Gorman,

199 F.3d 50, 57-58 (Ist Cir. 1999) (reviewing whether town

considered secondary effects evidence “prior to the ordinance’s

eee

36a

difficult to square with Renton, whose very language refers to

pre-enactment evidence, as well as with the Supreme Court’s

most recent treatment of this issue in Alameda Books."’

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 (Sth 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).

'7 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

37a

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 survives intermediate scrutiny. We therefore

reverse the District Court’s grant of summary judgment to the

County with respect to this ordinance.’® -

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).

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.

38a

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.

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.

39a

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.” 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

40a

municipality’s own findings and “reasonable belief that the

experience of other jurisdictions is relevant to the problem it

is addressing” were a 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

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

4la

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 Bx. 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.'? Dr. Randy D. Fisher,

Associate Professor of Psychology and Director of the Survey

Research Laboratory at the University of Central Florida,

19 The research question posed by the Danner sady 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 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.

| |

42a

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 neighboring properties

which found that there were “absolutely no signs of any

negative effects on adjoining property values or conditions”

resulting from Appellants’ businesses.”

2 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.

21 The Schauseil study examined real estate sales and permit

histories to determine the effects of the Adult Lounges on the

43a

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.

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

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.”

44a

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, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (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, 111 S. Ct. 2419, 115 L. Ed. 2d 447

(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.

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

45a

‘ei

“shown to produce the unwanted secondary effects. ” Renton,

475 U.S. at 52 (emphasis added). See also Flanigan’s, 242

F.3d at 976-97 (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”).

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

| er Sme wr

46a

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 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 than one-third of the buttocks or one-

fourth of the female breast.” The County has also expressly

forbidden the wearing of “G-strings, T-backs, dental floss,

and thongs.” In other words, the County has effectively

2 See supra note 2.

eee

47a

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 that the Supreme Court has emphasized

that local governments “‘must be allowed a reasonable

opportunity to experiment with solutions to admittedly serious

problems.’” Jd. 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

48a

capacity to convey the dancer’s erotic message.” /d. 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 (llth Cir. 2001) (remanding under similar

circumstances with specific guidance to the District Court as

to O’Brien’s fourth prong).”

23 The County argues that Cafe 207, Inc., v. St. Johns 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 Cafe 207, Inc., v. St.

Johns County, 856 F. Supp. 641 (M.D. Fla. 1994). However, Cafe

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.

ail

49a

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.”

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.

4 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. Fo: 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.

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No.: 8:99-CV0-2707-T-27E

[Filed April 29, 2002]

PEEK-A-BOO LOUNGE OF BRADENTON, INC.,

a Florida Corporation, and M.S. Enterprises, Inc.,

a Florida Corporation,

Plaintiffs,

MANATEE COUNTY, FLORIDA,

a Political Subdivision of the State of Florida,

Defendants.

)

V. : )

)

FINAL SUMMARY JUDGMENT

DEFENDANT MANATEE COUNTY having moved the

court for a summary judgment, and it appearing to the court

that there is no genuine issue as to any material fact and that

the Defendant is entitled to a judgment as a matter of law, it

ORDERED AND ADJUDGED, that judgment is hereby

granted in favor of Defendant Manatee County against

—_

50a

S5la

Plaintiffs Peek-A-Boo Lounge Of Bradenton, Inc., and M.S.

Enterprises, Inc.; that these Plaintiffs take nothing, and that

the complaint is hereby dismissed with prejudice. Defendant

Manatee County recovers from the Plaintiffs Peek-A-Boo

Lounge of Bradenton, Inc., and M.S. Enterprises, Inc., its

costs in this action.

This is the 26" day of April, 2002.

/s/

James D. Whittemore

U.S. District Court Judge

Middle District of Florida

cc: Counsel of Record

RE AAOAD 06 MO abe! FS Lieto wet

li lyase N ind a Wi a ik a Bt 9 88

APPENDIX D

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Case No.: 8:99-CV-2707-T-27EAJ

[Filed March 28, 2002]

PEEK-A BOO LOUNGE OF BRADENTON, INC.,

a Florida Corporation, and M.S. ENTERTAINMENT,

INC., a Florida corporation,

Plaintiffs,

VS.

MANATEE COUNTY, FLORIDA, a

political subdivision of the State of Florida

Defendant.

ee ee ee

ORDER ON DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT

THIS CAUSE came on to be considered on Defendant’s

Motion for Summary Judgment (Dkt. 28). The Court having

reviewed said motion and being otherwise fully advised in the

premises, finds as follows:

Sb, BS ODI SE PRE LOT EES

RAGE p pte oa Tasty ek EN Men i RE I BUA Aes ES

53a

I. Introduction

This case involves Plaintiffs’ challenges to Manatee

County’s (“the County”) enforcement of two county

ordinances dealing with adult dancing establishments and

public nudity. Plaintiffs, two adult entertainment businesses,

filed an eleven count Complaint against the County seeking a

declaration that Manatee County Ordinances No. 98-46 and

99-18, are unconstitutional, requesting that the County be

enjoined from enforcing the ordinances and demanding a trial

by jury. (Dkt. 1). The County has moved for entry of

summary judgment as to each count alleged in the Complaint

(Dkt. 28) and has moved to strike Plaintiffs’ jury trial demand

(Dkt. 53).

II. Factual Background

Ordinance 98-46! is a land use zoning regulation, adopted

' Ordinance 98-46 provides in pertinent part:

Section 3. Addition to Adult Entertainment Code. Section 2-2.5-

59of the Manatee code is hereby amended by adding the following

subsections (g) through (0):

(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 as 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 promises shall be locked at anytime a customer is anywhere

within the premises or at anytime the premises are open to the

54a

as an amendment to Manatee County’s adult entertainment

code. The amendments in Ordinance 98-46 provide for

specific physical requirements for premises used as adult

dancing establishments. (Dkt. 1, Ex. A). Prior to enacting

Ordinance 98-46, the Manatee County Board of County

Commissioners (the “board”) held a public hearing on the

ordinance and evidence in support of and in opposition to the

ordinance was submitted. After hearing comments by the

public, including Plaintiffs’ counsel, the board voted

public unless customers or patrons are prohibited at all times from

going into the rooms or areas behind such doorways or entrance

ways 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 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.

(1) 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.

(0) 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.

55a

unanimously for its approval on November 24, 1998. (Dkt.

30, Ex. 4).

Ordinance 99-18” is known as the Manatee County Public

Nudity Ordinance. (Dkt. 1, Ex. D). Generally, Ordinance 99-

18 prohibits nudity in public places with certain exceptions

and defines nudity in detail. (Dkt. 1, Ex. D). The ordinance

is not directed at a specific individual or business. (Dkt. 30,

Ex. 13). The Manatee County Planning Commission

recommended to the Manatee County Board of County

Commissioners that the ordinance be enacted with the proviso

that it would not apply to duly licensed adult entertainment

establishments. (Dkt. 30, Exs. 4,6). The board held two

public hearings on the ordinance, at which Plaintiffs’ counsel

appeared, spoke on Plaintiffs’ behalf and submitted documents

opposing the enactment of Ordinance 99-18. (Dkt. 30, Exs.

4,5, 6, 10, 11). Evidence was submitted in support of and in

opposition to the ordinance. The board approved Ordinance

99-18 on March 23, 1999, without an exemption for duly

licenced establishments. (Dkt. 1, Ex. E). The effective date

of the ordinance was January 1, 2000. (Dkt. 1, Ex. E):

? Ordinance 99-18 provides in pertinent part:

Section 4. NUDITY PROHIBITED IN PUBLIC PLACES: It shall

be unlawful for any person to knowingly, intentionally, or

recklessly appear, or cause another Person to appear, Nude in a

Public Place or in any other place which is readily visible to the

public, except as provided in Section 5. It shall also be unlawful for

any Person or Entity maintaining, owning, or operating any Public

Place establishment to encourage, suffer, or allow any Person to

appear Nude in such Public Place, except as provided, in Section

56a

Ill. Summary Judgment Standards

Summary judgment is proper if following discovery, the

pleadings, depositions, answers to interrogatories, affidavits

and admissions on file show that there is no genuine issue as

to any material fact and that the moving party is entitled to

judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317 (1986); Fed. R. Civ. P. 56. The Court must view all

evidence and all factual inferences reasonably drawn from the

evidence in the light most favorable to the nonmoving party.

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278,

1285 (11" Cir. 1997). Judgment in favor of a party is proper

where there is no legally sufficient evidentiary basis for a

reasonable jury to find for the nonmoving party on the issue

before the Court. Fed. R. Civ. P. 56.

Once a party properly makes a summary judgment motion

by demonstrating the absence of a genuine issue of material

fact, whether or not accompanied by affidavits, the

nonmoving party must go beyond the pleadings through the

use of affidavits, depositions, answers to interrogatories and

admissions on file, and designate specific facts showing that

there is a genuine issue for trial. Celotex, 477 U.S. at 324.

Plaintiffs’ evidence must be significantly probative to support

their claims. Anderson v. Liberty Lobby. Inc., 477 U.S. 242,

248-49 (1986).

IV. Discussion

A. Counts I and II: Predicate for Defendant’s Adoption of

Ordinances 98-46 and 99-18

In Counts I and Il of the Complaint, Plaintiffs contend that

Ordinances 98-46 and 99-18 violate the First, Fifth and

57a

Fourteenth Amendments to the United States Constitution as

there was an improper predicate for the adoption of the

ordinances. Government regulations that restrict protected

expression based on its content are subject to strict scrutiny.

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); Artistic

Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306

(11" Cir. 2000). If the governmental purpose in enacting the

regulation is unrelated to the suppression of expression,

however, the regulation need only satisfy intermediate

scrutiny. United States v. O’Brien, 391 U.S. 367 (1968).

Regulations that target undesirable secondary effects of

protected expression are deemed content-neutral and are

subject to an intermediate level of scrutiny. Id.

1. Intermediate Scrutiny Analysis

Ordinances No. 98-46 and 99-18 are both content neutral.

Ordinance 98-46 is content neutral as it does not operate to

suppress the expressive content of dancing in adult dance

establishments. Rather, it places restrictions solely on the

premises where adult dance entertainment maybe provided.

See Lady J. Lingerie, Inc, v. City of Jacksonville, 176 F.3d

1358, 1363-1364 (11" Cir. 1999), cert. denied, 529 U.S.

1053 (2000). Ordinance 99-18 is also content neutral as it

bans all public nudity without regard to whether the nudity is

accompanied by an erotic message. Pap’s, 529 U.S. at 290.

As the Supreme Court has observed, “Being in a state of

nudity is not an inherently expressive condition.” Pap’s, 529

U.S. at 289. Accordingly, the two ordinances are subject to

intermediate scrutiny analysis.

58a

2. Application of United States v. O’Brien, 391 U.S. 367

(1968)

Plaintiffs contend that the ordinances were enacted without

a proper predicate as the County did not have substantial

competent evidence to support applying the ordinances to

them and that the ordinances do not bear a reasonable

relationship to the County’s exercise of its police powers. The

parties agree that the question of whether Ordinances 98-46

and 99-18 were enacted without a proper predicate is analyzed

under the four part test set forth by the Supreme Court in

O’Brien. The O’Brien Court held that:

a government regulation is sufficiently justified if it is

within the constitutional power of the Government, if

it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that

interest.

Id. at 377.

a. Manatee County’s Exercise of Police Powers

It is within a county’s police power to protect public

health, safety and morality and to enact legislation proscribing

public indecency. Pap’s, 529 U.S. at 296; Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 567-569 (1991). Ordinances 99-

18 and 98-46 concern matters of public health, safety and

public indecency. As such, the ordinances are within the

county’s proper exercise of its police powers. See Cafe 207

Inc. v. St. Johns County, 856 F.Supp. 641, 644 (M.D. Fla.

59a

1994), aff'd, 66 F.3d 272 (11" Cir. 1995), cert. denied, 517

U.S. 1156 (1996).

b. Substantial Governmental Interests

Prevention of adverse secondary effects caused by adult

entertainment establishments, such as increased crime and

neighborhood blight, constitutes a substantial governmental

interest. Pap’s, 529 U.S. at 294-297; Lady J. Lingerie, Inc.,

176 F.3d at 1361. The government must, however, make a

minimal evidentiary showing that the purpose in enacting the

legislation was a concern over secondary effects.> Ranch

House, Inc. v. Amerson, 238 F.3d 1273 (11" Cir. 2001). In >

“terms of demonstrating that secondary effects pose a threat,

the [Defendant] 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.’” Pap’s, 529 U.S. at 295; Renton v. Playtime

Theaters, Inc., 475 U.S. 41, 51-52 (1986). However, the

government may not rely on remote, foreign studies when

current, empirical data concerning the municipality at issue

exists. Flanigan’s Enterprises, Inc. of Georgia v. Fulton

County, Georgia, 242 F.3d 976, 985 (11" Cir. 2001).

3 The Court notes that the evidence of secondary effects may

have been created after the governmental legisiation was enacted.

The government is not required to “have before it, at the time of

adoption, evidence supporting the constitutionality of the action

taken.” Phillips v. Borough of Keyport, 107 F.3d 164, 178 (3d

Cir.), cert. denied, 522 U.S. 932 (1997). Instead, the government

must present a “factual basis for [its] legislative judgment...in court >—

when that judgment is challenged.” Id.

60a

Here, the County asserts that Ordinances 99-18 and 98-46

were enacted to combat the harmful secondary effects

associated with nude dancing. (Dkt. 28). The County has

submitted two large volumes of documents in support of its

arguments. (Dkt. 30). The documents represent the County’s

records which were compiled during the board’s proposal and

deliberations of Ordinances 98-46 and 99-18. Among the

evidence is a report entitled Evidence of Secondary Adverse

Effects of Sexually Oriented Businesses which was prepared

by The Florida Family Association, Inc. of Tampa, Florida.

(Dkt. 30, Ex. 9). The report includes a transcript of testimony

by a sergeant from the Pinellas County Sheriff's Office

concerning his first-hand observations of the proliferation of

prostitution, sexual contact and lewd acts that take place in

nude dancing establishments in Pinellas County. (Dkt. 30, Ex.

9, Ex. A). Additionally, the report includes testimony from

the Director of Communicable Diseases of the Pinellas

County Health Department that communicable diseases are

transmitted by unprotected sexual activity that takes place in

nude dancing establishments. (Dkt. 30, Ex. 9, Ex. A). Also

included in the report are studies from foreign jurisdictions

including, Oklahoma (Dkt. 30, Ex. 9, Exs. B and H), Texas

(Dkt. 30, Ex. 9, Ex. J, K, M and O), Arizona (DKt. 30, Ex.

9, Ex. L), Ohio (Dkt. 30, Ex. 9, Exs. B and H), Indiana

(Dkt. 30, Ex. 9, Ex. N) and Washington (Dkt. 30, Ex. 9, Ex.

P), which address the secondary effects caused by nude

dancing establishments.

At the public hearings concerning the ordinances,

Plaintiffs’ counsel presented evidence in opposition to the

ordinances including a chapter from a book entitled Handbook

6la

of Human Sexuality* which discusses the effect pornography

has on social behavior. (Dkt. 30, Ex. 5). Therein, the author

wrote that although it is difficult to determine the relationship

between behavior and pornography, studies in Denmark have

shown that exposure to “hard-core” pornography resulted in

a decrease in crimes of a sexual nature. Id. at 257-58.

At the hearings, Plaintiffs also submitted their Appendix

in Support of Peek-A-Boo Lounge and Temptations II’s

Opposition to Proposed Manatee County Public Nudity

Ordinance No. 98-51 (Dkt. 30, Exs. 10, 11). Those

documents include charts that purportedly reflect an increase

in property values for property located near the Plaintiffs’

businesses. The charts provide no information concerning the

identity of the sample properties or their proximity to

Plaintiffs’ businesses. (Dkt. 30, Ex. 10, Tabs M and N; Ex.

11, Tabs K-M). The documents also include crime incident

lists from the Plaintiffs’ businesses and surrounding areas.

(Dkt. 30, Ex. 10, Tabs Q-S). The incident reports show that

crimes including criminal mischief, robbery, battery and

assault have taken place at the Plaintiffs’ businesses and in the

purportedly surrounding areas throughout 1997 and 1998.

Both parties presented as evidence at the hearings

numerous letters in support of the ordinances (Dkt. 30, Ex. 7,

8, 14, 18,19) and in opposition to the ordinances (Dkt. 30,

Ex. 7, 11, 12, 14, 17).

Considering the evidence presented to the Board at the

time it enacted the ordinances, the Court finds that the County

* Robert Athanasiou, Pornography: A Review of Research, in

HANDBOOK OF HUMAN SEXUALITY, (Benjamin B. Wolman

et al. eds., 1993).

62a

has more than met its burden of providing minimal evidence

that its interests in ameliorating the secondary effects of drug

and alcohol abuse, prostitution, illicit and lewd public

behavior, crime and sexually transmitted diseases were a

motivating factor in enacting the ordinances. These interests

are legitimate and substantial governmental interests as

described in Pap’s and Renton. The Court also notes that

ordinances prohibiting public nudity were expressly upheld by

the Supreme Court in Pap’s and Barnes. Further, the County

is permitted to rely on studies from neighboring areas such as

Pinellas County as well as foreign studies. No evidence

showed that these studies were not relevant to Manatee

County. ;

Manatee County must merely produce some evidence

justifying the adoption of the ordinances. The evidence

concerning secondary effects experienced by Pinellas County,

an area in close proximity to Manatee County, was relevant

to Manatee County’s circumstances. Flanigan’s Enterprises,

Inc., 242 F.3d at 985-86 (stating, “In order to meet their

burden under this element, the Defendants must have “some

factual basis for the claim that [adult] entertainment in

establishments serving alcoholic beverages results in increased

criminal activity’ and other undesirable community

conditions” and that “Our own cases demonstrate that we

require some reasonable justification for legislation”).

Accordingly, the record supports a finding that the County’s

purposes in enacting the ordinances was a concern over

secondary effects on conditions in Manatee County which

justified adoption of the ordinances.

The preceding factual analysis by the Court is a

permissible and required exercise. As the Eleventh Circuit has

stated, the analysis of the constitutionality of ordinances

depends on local conditions and may “appear[] to result in

63a

constitutional fact finding. ... However, we have no choice;

we are bound by the decisions of the Supreme Court and the

law of our circuit.” Flanigan’s, 242 F.3d at 987.

c. Relationship of Governmental Interest to the

Suppression of Free Speech

To pass constitutional scrutiny, Manatee County’s asserted

interests in combating the negative secondary effects

associated with adult dancing establishments and public nudity

must be unrelated to the suppression of any erotic message

conveyed by nude dancing and public nudity. See Pap’s, 529

U.S. at 290. Ordinaace 98-46 operates to place restrictions on

the premises in which dancers at adult businesses express

themselves but does not prevent, restrict or suppress the

artistic expression itself. See id. at 292. Accordingly, the

Court concludes that Ordinance 98-46 is unrelated to the

suppression of free speech.

Additionally, Ordinance 99-18 is, on its face, a general

ban on public nudity. As such, it regulates conduct alone, as

did the ordinance upheld by the Supreme Court in Pap’s. See

Pap’s, 529 U.S. at 290. The Court finds that the County’s

interests are unrelated to the suppression of the content of free

speech and the erotic message conveyed by nude dancing and

public nudity. Accordingly, the “government generally has a

freer hand in restricting expressive conduct,” Texas _v.

Johnson, 491 U.S. 397, 406 (1989).

d. The Ordinances Must be Narrowly Tailored

An ordinance is narrowly tailored when it is “not

substantially broader than necessary to achieve the

government’s interest.” Lady J. Lingerie, 176 F.3d at 1365

(quoting Ward v. Rock Against Racism, 491 U.S. 781,800

64a

(1989)). Ordinance 98-46 amended Manatee County’s adult

dancing entertainment code. The amendments in Ordinance

98-46 set forth physical restrictions on premises of adult

establishments in which nude dancing may take place. The

ordinance applies to all adult dancing establishments,

_including lingerie and modeling studios, tanning salons and

businesses that provide private consultative services where

body-parts are displayed. (Dkt. 1, Ex. A). An examination of

the ordinance leads the Court to the conclude that its

provisions are narrowly tailored to achieve the County’s

stated interests. The ordinance regulates only the manner in

which the premises are designed and operated. There is no

conceivable impact on the expressive element of nude

dancing.

The ordinance also provides that the rooms in the adult

dance establishments, other than the entrance, lobby and

sanitary facilities, must either “be not less than one thousand

square feet in area” or be marked in letters two inches in

height or larger “No Customers or Patrons Allowed.” (Dkt.

1, Ex. A, Section 3(h)). An identical provision was upheld by

the Eleventh Circuit as narrowly tailored as the “regulation

leaves open reasonable alternative avenues of expression.”

Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d

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