Opposition Brief — International Eateries of America, Inc. v. Broward County

Sugreme Court, U.S.

FILED

No. 91-1168 3 24 82

Gece oF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

— 4

INTERNATIONAL EATERIES OF AMERICA, INC.,

Petitioner,

VS.

BROWARD COUNTY, FLORIDA,

Respondent.

>

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

*

RESPONDENT'S BRIEF IN OPPOSITION

=

JOHN J. COPELAN, JR.*

County Attomey for Broward County

TRACY H. LAUTENSCHLAGER

Assistant County Attomey

Suite 423, Governmental Center

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Telephone: (305) 357-7600

Telecopier: (305) 357-7641

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

Whether the court of appeals correctly applied City of Renton

v. Playtime Theaters, Inc., 435 U.S. 41 (1986), to uphold county

zoning ordinances that set minimum separation requirements be-

tween adult-oriented business and residential areas, churches, schools

and day care centers?

Z

TABLE OF CONTENTS

Question Presemted for REVICW .......2.020ccccscccccscscscsccccccssccocscoeeees ii

TORS OE CONE osisssiisseniissecsnsiscscriicdainaempaenaiia ili

FS OE AID nensisnnccnisscicccnnnneeneaanananies iV

Additional Ordinance Provisions .................::ccccceseseesssececeeeseeenees l

SSOCTINCIE GE TEND COG ii ccccaveccceieciincinesisctaeabeavoraneammuanamaianians 2

SSUNRATY GCE Cae AMINE oosssisnsissssissscstiinermiacienteeiananaaen 4

PEE oscvceisssinisricomensantiniiiemaamaaaaia 6

The court of appeals’ application of City of Renton v. Play-

time Theaters, Inc., to uphold the Broward County distance

ordinances was correct and consistent with the holdings of

DU COI. sncncsiecsrensnvisclaetiigee ected meena 6

I. Considering the facts of Barnes v. Glen Theatre, Inc., and

the differing bases for the Court’s holding in that case, City

of Renton v. Playtime Theaters still controls the question of

whether Broward County’s zoning ordinances regulating

adult-oriented businesses were valid as applied to Peti-

SE ENED PI en ES Se BONE 6

II. The court of appeals correctly applied the test established

in Renton to hold the Broward County adult use distance

ordinances to be content neutral and narrowly tailored as

applied to Petitioner. ....... possnisohdediataticteGaaeaaaaemette 9

Commarea sn iccsincescesescesenctoaneeeeiiocetagels acini 15

POI GT, onic s.aressicecnnmnnshieninunsnnennientinansaiianimiaaaaiaamsaaian A-1

il

i

TABLE OF AUTHORITIES

Cases Page

Barnes v. Glen Theatre, Inc.

501 U.S. __, 111 S.Ct. 2456, 115 L.Ed.

Ei 4,5, 6, 7, 8,9

Basiardanes v. City of Galveston

SE AE EE OIE, NOPE) cn snersserescnscasnccsnssnncsensinies 11, 12

City of Renton v. Playtime Theaters, Inc.

475 U.S. 41 (1986) ................. 5, 6, 7, 8,9, 10, 11, 12, 13, 14

Federated Department Stores, Inc. v. Moitie

a iarinctieisaninsnsnnninnanssninkesnanaitn 11

International Eateries of America, Inc. v.

Broward County

Fae ee. 1500 C.D. FIR. 1967) ............02...0..s0erscs000s 2, 10

International Eateries of America, Inc. v.

Broward County

Fane eee. 1300 GD. Pia. 1969) .................000000ss00000 9,11

International Eateries of America, Inc. v.

Broward County

941 F.2d 1157, 1162 (11th Cir. 1991).......................... 1,7,8

Krueger v. City of Pensacola’

Pe RE CE BEIAAT. BDGD)......n.....-ncncrseseneneesenencesnes 11,12

United States v. O’ Brien

ica anand indardannngemanennuborenueeeesaunancen 7,8,9

Ward v. Rock Against Racism

I PE icicenstsinkepnanissnnvennnanuennencarannsssessuacnens 5, 13

Young v. American Mini Theatres, Inc.

iis ciadaininsintnnnemvannnhsancne’s 6, 10, 12, 14

Constituti

i I I oo oa cscraaeh A aNOneNDale’ 14

Other Authoriti

Broward County Ordinance 77-48 .000.........ccccesesseeeeeseeeeeeneeees Oe

Broward County Ofdinance 78-33 .0.............:ccseeeeeeeteeeeeeeeeeeees is

Section 39-225, Broward County Code of Ordinances ............

Section 39-229, Broward County Code of Ordinances ................. 2

2 Zeigler, Rathkopf s The Law of Zoning

Ce BE RE CEE cetictirecinmmnn 12

No. 91-1168

In The

Supreme Court of the United States

October Term, 1991

—o

INTERNATIONAL EATERIES OF AMERICA, INC.,

Petitioner,

VS.

BROWARD COUNTY, FLORIDA,

Respondent.

>

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

eo

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Broward County, a political subdivision of the

State of Florida, respectfully requests that this Court deny the Petition

for Writ of Certiorari, seeking review of the decision of the Eleventh

Circuit Court of Appeals in this case, reported at 941 F.2d 1157.

ADDITIONAL ORDINANCE PROVISIONS

BROWARD COUNTY ORDINANCES

The text of Broward County Ordinances 77-48 and 78-33,

adopted on September 16, 1977, and June 27, 1978, respectively, are

set out verbatim in the Respondent’s Appendix. These ordinances

l

include the legislative findings of the Board of County Commission-

ers, which were omitted when the ordinances were codified as

Sections 39-225 through 39-229, Broward County Code of Ordi-

nances.

STATEMENT OF THE CASE

Petitioner’s Statement of the Case improperly includes argu-

ment and facts that are not material to the questions presented,

therefore Broward County here provides a complete Statement of the

Case. Material printed in Petitioner’s Appendix is referred to by

appendix letter and page as follows: “Pet. App. A-1.” Material

printed in Broward County’s Appendix is referred to as follows:

“B.C. App. 1.”

Petitioner operates an adult nightclub in unincorporated

Broward County, Florida, which presents live nude dancing as the

primary form of entertainment for its patrons. In 1986, Broward

County issued notices of violation citing the Petitioner’s business for

operating within 500 feet of a residentially zoned district and within

1,000 feet of achurch, in violation of Sections 39-225 through 39-229,

Broward County Code of Ordinances. (Pet. App. B-5). Petitioner’s

nightclub, “Thee Dollhouse III,” is located within 500 feet of a

residentially zoned district and within 1,000 feet of the Kingdom Hall

of Jehovah’s Witnesses. (Pet. App. B-7).

The cited sections of the Broward County Code were adopted

by the Board of County Commissioners of Broward County by

Ordinance No. 77-48 on September 16, 1977, and by Ordinance No.

78-33 on June 27, 1978, and are referred to herein as the “distance or-

dinances.” (B.C. App.)

Broward County also cited Petitioner for operating in a B-3

zoning district in violation of the “special use ordinances,” which

limited adult businesses to a three-fourths acre parcel zoned “B-2-B.”

These notices were collectively the subject of the previous case

between these parties, /nternational Eateries of America, Inc. v.

Broward County, 726 F.Supp. 1556 (S.D. Fla. 1987), referred to

hereafter as “Dollhouse 1.” (Pet. App. C). In that case, the district

court held that the special use ordinances were invalid, both facially

2

and as applied, but held that the distance ordinances were facially

valid. (Pet. App. B-11; C-16). The court reserved ruling only on

Broward County’s treatment of the Petitioner with respect to the

distance ordinances. (Pet. App. C-15). The 1987 decision of the

district court in Dollhouse 1 was not appealed.

After the final judgment was issued in Dollhouse | in 1987,

Broward County again issued to Petitioner a notice of violation of the

distance ordinances. The action which is the subject of the holding of

the court of appeals below and this Petition arose from the 1987

notices of violation.

It is undisputed that Petitioner’s adult nightclub is located

within 500 feet of a residential area and within 1,000 feet of a

Kingdom Hall of the Jehovah’s Witnesses. The Petitioner opened its

nightclub in violation of both the residential and church distance

provisions. An officer of Petitioner corporation submitted an affida-

vit stating that adult entertainment would not be presented at the club.

(Pet. App. C-7). ‘

On December 15, 1987, Petitioner submitted a petition to the

Broward County Building and Zoning Enforcement Division, pursu-

ant to Section 39-225(b), Broward County Code of Ordinances,

seeking a waiver of the residential distance requirement. (Pet. App.

B-7). Section 39-225(b) provides:

This prohibition shall be waived upon the presentment to the

building and zoning enforcement division of a written peti-

tion requesting such a waiver, signed by 51 percent of all

those persons owning real property, residing or operating or

managing a business within 500 feet of the proposed location

of the designated use.

The section goes on to set guidelines for circuiation of the

petition and to require verification of the petition by the enforcement

division. (Pet. App. E).

In an attempt to satisfy the residential waiver section, a

principal in Petitioner corporation purchased a duplex that was within

the 500 foot radius of the nightclub and placed employees of “Thee

3

Dollhouse III’ there as residents. The owners and residents of the

duplex then signed the petition. (Pet. App. B-8).

The eight signatures on the petition represented more than 51

percent of those persons residing or owning residential property

within 500 feet of Petitioner’s nightclub. (Pet. App. B-8). However,

the petition did not contain any signatures of persons owning com-

mercial property or operating businesses within the 500 foot radius.

Since there were many more than 15 persons within the group of

potential signatories, the petition did not contain the required number

of signatures. Broward County rejected the petition on or about

December 22, 1987, for that reason. (Pet. App. B-9).

The waiver provision has been consistently interpreted by the

Broward County Building and Zoning Enforcement Division to

require signatures of 51 percent of a group of persons which includes

owners Of real property, residents, and owners or operators or manag-

ers of businesses within 500 feet of the proposed adult use. (Pet. App.

B-9). Broward County has granted waivers to other petitioners

pursuant to this interpretation of the provision. (Pet. App. B-10).

There was no evidence introduced at the 1989 trial regarding

Broward County’s treatment of Petitioner with respect to the 1,000

foot church distance provision. (Pet. App. B-11). The only testimony

offered by Petitioner at the trial of this case that was admitted in

evidence was conceming the circulation and: submission of the waiver

petition and the purchase and sale prices of the duplex residence

within the 500 foot radius. (Pet. App. B-10, 11).

The district court held the Broward County distance ordi-

nances to be valid as applied, which decision was upheld by the

United States Court of Appeals for the Eleventh Circuit.

SUMMARY OF ARGUMENT

The court of appeals below properly upheld the validity of

Broward County’s adult use distance ordinances as applied to Peti-

tioner’s nightclub. After discussing the various opinions expressed in

the Court’s recent decision, Barnes v. Glen Theatre, Inc., 501 U.S.

4

__, 111 S.Ct. 2456; 115 L.Ed.2d 504 (1991), the court of appeals

correctly determined that the case at bar is controlled by City of

Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). The court of

appeals then carefully applied the standards established in Renton and

concluded that the Broward County distance ordinances are valid,

content neutral, “time, place and manner’ regulations.

Contrary to Petitioner’s claim, the court of appeals did not

relax the standard set in Renton regarding what evidence must be

presented to show that a local government adopted an ordinance for

the substantial purpose of preventing the negative secondary effects

of adult businesses. The Broward County distance ordinances ex-

pressly state that they were adopted to combat the “deleterious effect”

of adult businesses. Further, the evidence presented at trial estab-

lished that Broward County had relied on the experiences of the City

of Detroit in enacting its regulations, which is clearly permitted by the

Renton test.

The decision of the court of appeals in this case did not

conflict with other Eleventh Circuit decisions or the decisions of other

circuits. The cases Petitioner cites as being in conflict with the instant

case regarding the necessary type and amount of evidence of “‘nega-

tive secondary effects” predate Renton and should no longer be raised

in support of Petitioner’s argument. The cases also can be factually

distinguished from the case at bar. Any language in those cases that

imposes a greater burden on local governments than what the Court

accepted in Renton, is no longer valid. There is no conflict, therefore,

which requires this Court to accept jurisdiction of the instant case.

Petitioner, finally, suggests that the Court should apply a

more stringent test than the ‘narrowly tailored” test in cases like the

one at bar. The Court recently addressed and rejected this suggestion

in Ward v. Rock Against Racism, 491 U.S. 781 (1989). The “narrowly

tailored” standard requires a sufficiently close fit between the govern-

mental interest furthered by such regulations and the effect on

protected expression, while still permitting local governments the

necessary flexibility to address local problems. Since there is no

conflict between the court of appeals decision in this case and the

holdings of this Court or the circuit courts, and since there is no need

to alter the well-established tests applied below, there is no reason for

the Court to accept junsdiction of this case.

ARGUMENT

The court of appeals’ application of City of Renton v.

Playtime Theaters, Inc., to uphold the Broward County

distance ordinances was correct and consistent with the

holdings of this Court.

This case is controlled by this Court’s previous holdings in

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), and

Young v. American Mini Theatres, 1nc.,427 U.S. 50 (1976), and is not

inconsistent with the Court’s recent holding in Barnes v. Glen

Theatre, Inc., 501 U.S. __, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991).

Those cases provide clear guidelines to the lower federal courts and

local governments regarding the proper method of regulation of adult-

Oriented businesses through the zoning power. The controlling law is

well-settled and was correctly applied by the court of appeals. The

conflict alleged by Petitioner does not exist because the cited deci-

sions of the Fifth and Eleventh Circuits were decided before this Court

ruled clearly in City of Renton v. Playtime Theaters, Inc. There is,

therefore, no reason for the Court to exercise its discretion and accept

jurisdiction in this case.

I. Considering the facts of Barnes v. Glen Theatre, Inc.,

and the differing bases for the Court’s holding in that

case, City of Renton v. Playtime Theaters still controls

the question of whether Broward County’s zoning

ordinances regulating adult-oriented businesses were

valid as applied to Petitioner.

Petitioner extensively discusses the Court’s opinions in Barnes

v. Glen Theatre, Inc., but does not really suggest that the court of

appeals should have applied Barnes rather than City of Renton v.

Playtime Theaters, Inc., to this case. Nor does Petitioner suggest that

the instant case would have a different outcome under any of the

6

SRDS SS SO i soci

analyses used in Barnes. Barnes will be discussed herein because it

is the most recent treatment by the Court of a nude dancing regulation.

The Renton case, however, more directly addresses the case at bar,

and any difference between the analysis ultimately used by the court

of appeals in this case and the Court in Barnes is insignificant.

Barnes v. Glen Theatre, Inc.,501 U.S.__, 111 S.Ct. 2456,

115 L.Ed.2d 504 (1991), concerned the enforcement of a public

indecency statute to prohibit nude dancing in adult nightclubs. The

Indiana public indecency statute prohibited nudity in places of public

accommodation. /d. at___, 115 L.Ed.2d at 513. Chief Justice

Rehnquist announced the judgment of the Court and wrote an cpinion

in which Justice O’Connor and Justice Kennedy joined. ‘The justices

joining in this plurality opinion found the statute was valid as applied

because it was supperted by a substantial governmental interest in the

protection of the public morals, and the statute satisfied the other tests

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

Justice Scalia concurred separately to explain that statutes

regulating conduct, which incidentally affect expression, should not

be analyzed under first amendment precedents at all unless they were

adopted for the purpose of prohibiting expression. Barnes at __,

115 L.Ed.2d at 518. Justice Souter also wrote separately, concurring

in the judgment, because the Indiana statute was supportable as a

regulation intended to prevent the negative secondary effects of adult-

oriented businesses. /d. at___, 115 L.Ed.2d at 521.

The court of appeals reviewed these opinions and determined

that Barnes did not directly control the Broward County case. Since

the Court was divided in Barnes, the court of appeals viewed the case

as resting on its narrowest basis, which was Justice Souter’s concur-

ring opinion. /nternational Eateries of America, Inc. v. Broward

County, 941 F.2d 1157, 1160(11th Cir. 1991). Justice Souter upheld

the Indiana statute on the basis of the Renton decision, whichis amore

stringent test than the tests used in the plurality opinion or Justice

Scalia’s concurrence. The court of appeals tested the Broward

County ordinances against the most exacting of the standards used by

members of this Court to uphold the statute in Barnes and found them

valid.

It would seem that the Broward County regulations at issue

here may be upheld under any of the three rationales used to sustain

the statute in Barnes. The Indiana statute was a general prohibition

that was scrutinized as applied to nude dancing establishments. All

five justices that upheld the statute determined that it either did not

implicate protected expression at all, or was adopted for a purpose

unrelated to the suppression of speech, and was, therefore, “content

neutral.” The Broward County distance ordinances, likewise, are

explicitly directed at the negative secondary effects that accompany

certain adult-oriented uses and are, therefore, “content neutral.”

This Court clearly established in Renton a three-part test for

measuring the validity of local zoning ordinances that impact pro-

tected expression:

The appropriate inquiry in this case, then, is whether the

Renton ordinance is designed to serve a_ substantial

governmental interest and allows for reasonable alternative

avenues of communication.

City of Renton v. Playtime Theaters, Inc., 475 U.S. 41,50(1986). The

third part of the test was explained later in the opinion where the Court

said, ““[m]Joreover, the Renton ordinance is ‘narrowly tailored’ to

affect only that category of theaters shown to produce the unwanted

secondary effects...” /d. at 52.

The court of appeals recognized that both the Renton “time,

place and manner” test that is used to measure the validity of content-

neutral regulations, and the four-part test established in United States

v. O' Brien, 391 U.S. 367 (1968), have been applied to cases involving

regulations that incidentally affect protected expression. As the court

of appeals noted, this Court has found that the two tests are essentially

the same and lead to the same results when applied. /nternational

Eateries of America, Inc. v. Broward County, 941 F.2d 1157, 1162

(11th Cir. 1991).'

' The four-part test in O'Brien provides that an ordinance regulating symbolic

conduct is valid:

if it is within the constitutional power of the Government; if it furthers an

important or substantial governmental interest; if the governmental interest

8

ae

The court of appeals below determined that the ordinance at

issue in this case was more like the regulation challenged in Renton

than the public indecency statute at issue in Barnes v. Glen Theater,

Inc., 501 U.S. __, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), and,

therefore, applied the “time, place and manner” test. The Broward

County distance ordinances are zoning regulations, like those at issue

in Renton. The distance ordinances at issue here also set similar

minimum distances between the same types of businesses as the

ordinance in Renton, although the cases have been litigated concern-

ing different types of “expressive” activity. Renton, 475 U.S. at 44;

International Eateries of America, Inc. v. Broward County, 726

F.Supp. 1568, 1571 (S.D. Fla. 1989). This decision by the court of

appeals was Clearly appropriate for the reason stated, and also because

zoning regulations are, conceptually, regulations that permit and

direct particular uses of land in the most appropriate place and manner

for the local community.

II. The court of appeals correctly applied the test

established in Renton to hold the Broward County

adult use distance ordinances to be content neutral

and narrowly tailored as applied to Petitioner.

The court of appeals reviewed the trial record and correctly

applied the elements established in Renton to uphold the Broward

County distance ordinances as applied. The court first considered

whether the distance ordinances furthered a substantial governmen-

tal interest. The legislative basis of the distance ordinances is set forth

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.

United Statest v. O'Brien, 391 U.S. 367, 377 (1968). This test is substantially similar

to the test in City of Renton v. Playtime Theaters, Inc. All legislation must be within

the constitutional power of the government. Both tests require that the regulation

further a substantial governmental interest; as Justice Souter noted in Barnes v. Glen

Theatre, Inc., the “content neutral" requirement of Renton equates to the requirement

in O'Brien that the governmental interest be unrelated to the suppression of expression;

the “narrowly tailored” element from Renton is the same as the requirement that the

restriction of First Amendment freedoms be no greater than necessary to further the

governmental interest. See Barnes at, J 1S L.Ed.2d at 524.

—

in the “whereas” clauses in Respondent’s Appendix. (B.C. App. A-

1, A-2, A-9, A-10). The distance ordinances state that they were

adopted to combat the deleterious effects of certain adult-oriented

businesses on residential areas and neighborhood businesses. The

testimony received in Dollhouse | supported this legislative finding.

International Eateries of America, Inc. v. Broward County, 726

F.Supp. 1556, 1564 (S.D. Fla. 1987). The testimony and planning

study admitted in Dollhouse / established that the ordinances were

narrowly tailored and left ample alternative sites for adult nightclubs.

A. The Broward County distance ordinances further a

substantial governmental interest as applied to Peti-

tioner.

The discussions of this Court in Renton and Young clearly

establish that a local government's interest in protecting neighbor-

hoods from downgrading and blight is a substantial governmental

interest. Young,427 U.S. at 71; Renton, 475 U.S. at 50. The Broward

County distance ordinances were adopted expressly for those pur-

poses. The Petitioner does not dispute that the court of appeals was

correct to apply the test established by the Court in City of Renton v.

Playtime Theaters, Inc., to determine the validity of the Broward

County distance ordinances as applied, but claims that the court of

appeals somehow applied the test less stringently than required by the

terms of Renton. (Petition at 17, 18.) In support of this claim,

Petitioner states that the Broward County distance ordinances were

simply “modeled after’ the ordinance at issue in Young v. American

Mini Theatres, Inc., 427 U.S. 50 (1976), and that Renton and other

court of appeals decisions require more. Petitioneris wrong regarding

both the cfiaracternization of the Broward County ordinances and the

requirements of Renton.

The record below established that, just like the City Council

of Renton, the Broward County Board of County Commissioners

received information from its professional planning staff, relied upon

the experiences of the City of Detroit, determined that certain busi-

nesses were causing detrimental secondary effects to the surrounding

neighborhoods, and enacted remedial legislation. The Petitioner

alleges that there was insufficient evidence presented at trial of the

existence of negative secondary effects from adult businesses in

Broward County for the district court to uphold this determination by

10

the Board of County Commissioners. (Petition at 20.)? However,

Broward County appropriately relied on the experiences of Detroit,

which was expressly permitted by this Court in Renton.

The Court in Renton recognized that local governments may

rely on the experiences of other cities in enacting such ordinances.’ In

fact, the “whereas” clauses of the Broward County distance ordi-

nances are very similar to the legislative findings the Court held to be

sufficient in Renton. The finding of the district court in Dollhouse /

that Broward County had relied on the experiences of the City of

Detroit, rather than merely “mimicked” it, is supported by competent

substantial evidence in the form of the ordinances themselves and

testimony given in Dollhouse /.

Petitioner claims that the court of appeals, in finding that the

Broward County distance ordinances had a sufficient basis, ruled

inconsistently with the decision of the Fifth Circuit in Basiardanes v.

City of Galveston, 682 F.2d 1203 (Sth Cir. 1982), and its own decision

in Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985). The

standards applied in those cases regarding the sufficiency of evidence

presented to a local government of negative secondary effects have

been significantly modified by City of Renton v. Playtime Theaters,

Inc.,475 U.S. 41 (1986), and the cases can be factually distinguished.

The Galveston ordinance at issue in Basiardanes had the

effect of virtually banning all adult entertainment from the city and its

distance provisions were struck down on that basis. 682 F.2d at 1213.

2 To the extent that this assertion is an attack on the facial validity of the

ordinances, it was not before the court of appeals and is barred by res judicata.

Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981); International

Eateries of America, Inc. v. Broward County, 726 F.Supp. 1568, 1574 (S.D. Fla.

1989). However, the court of appeals did consider the legislative basis of the

ordinances in deciding their validity as applied to Petitioner.

>We hold that Renton was entitled to rely on the experiences of Seattle and

other cities . . . in enacting its adult theater zoning ordinance. 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.

City of Renton v. Playtime Theaters, Inc., 435 U.S. 41, 51 (1986).

11

The record in the instant case establishes that the Broward County -

distance ordinances leave ample opportunity for adult businesses to

locate. (Pet. App. B-23). To the extent that the court in Basiardanes

spoke disapprovingly of Galveston’s reliance on the Detroit ordi-

nances, that discussion must be evaluated in light of this Court’s

holdings in City of Renton v. Playtime Theaters, Inc. The Basiardanes

case was decided before Renton, in which this Court specifically

authorized local governments to rely on the experiences of other cities

and counties.

Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985), a

which also pre-dated Renton, concermed an attempt to ban topless

dancing under the state’s twenty-first amendment authority, as dele-

gated to the city. The court of appeals found the ordinance invalid

because the evidence below clearly showed that the legitimate gov-

emmental interest asserted by the city was not, in fact, the reason the

city adopted the ordinance. There is no such evidence of an illegiti-

mate, hidden motive behind Broward County’s action.

Again, to the extent that the Eleventh Circuit discussed what

evidence a government may rely upon in adopting such ordinances,

Krueger must now be read in light of Renton. As the court of appeals

below found in this case, Broward County’s reliance on the experi-

ences of Detroit satisfied the standard recognized by the Court in

Renton. Both Krueger and Basiardanes follow a line of court of

appeals decisions rendered between Young v. American Mini-The-

atres and Renton in which courts struck down adult-use zoning

ordinances because the local government had not established by

onginal planning studies a local factual basis to show that the

ordinance would further a substantial purpose. These cases should no

longer be cited for this invalid proposition. As one commentator

recognized:

[T]he above court decisions are now of dubious validity as

precedent in regard to a city’s burden of showing that location

restrictions on adult uses further a substantial public purpose in

view of the Supreme Court’s decision in City of Renton...

2 Zeigler, Rathkopf s The Law of Zoning and Planning §17B.02, 17B-

31 n.118 (1991).

12

There is no conflict between the court of appeals’ holding in

this case and the decisions of other circuits. This Court so clarified the

applicable standards for adult-use distance ordinances in City of

Renton, that the federal legal issues are well-settled.

B. The Broward County distance ordinances are nar-

rowly-tailored as applied to Petitioner.

As discussed briefly above, the record also clearly shows that

the distance ordinances at issue are narrowly tailored and leave ample

opportunity for Petitioner to operate in Broward County.‘ Petitioner

ineffectively attacks the court of appeals’ narrowly-tailored finding

on two bases: this Court should instead use the “least intrusive

means” test, and the distance ordinances do not further a legitimate

governmental interest. (Petition at 25). The sufficiency of the

governmental interest in the ordinances at issue was fully discussed

above. Regarding the appropriate test, Petitioner may certainly sug-

gest that this Court abandon the “narrowly tailored” standard in these

Cases in favor of amore Strict test, but such a change would be unwise.

The “narrowly tailored” standard sufficiently protects private inter-

ests and provides local governments with the flexibility necessary to

address diverse local conditions.

The Court very recently reaffirmed the applicability of the

“narrowly tailored” standard and rejected the “‘least intrusive means”

test in Ward v. Rock Against Racism, 491 U.S. 781 (1989). The

“narrowly tailored” standard recognizes that local governments must

be given flexibility to address unique local problems. Petitioner

asserts that the enforcement of certain Florida statutes would be a

sufficient and less intrusive means of preventing the secondary effects

of adult nightclubs. (Petition at 26). The statutes cited were general

criminal, public health, and nuisance statutes. Statutes applicable

Statewide are not intended to provide specific remedies to address

“The claim in footnote 19 of the Petition that the Broward County distance

ordinances are not narrowly tailored because they include the residential waiver

provision is clearly without basis. The inclusion of a waiver provision was certainly

not constitutionally required, however, it demonstrates that Broward County has

made every attempt to carefully craft the regulations to reach only the intended evil.

As the court of appeals recognized, the Broward County waiver provision precludes

arbitrary enforcement by its very terms.

13

SS

unique local problems. Charter counties in Florida, such as Broward

County, are vested with broad home rule powers to regulate for the

protection of the public health, safety and welfare.* As Petitioner

mentions in footnote 20 of the Petition, local governments have

responded to local needs with a great variety of regulation. The “nar-

rowly tailored”’ test requires a close enough fit between the govern-

mental and private interests.

An examination of the court of appeals’ decision below

reveals that the court first determined that Renton controlled its analy-

sis, and then carefully and correctly applied the test established in that

case to uphold the Broward County distance ordinances as applied.

Considering the clear statements of this Court in City of Renton v.

Playtime Theaters, Inc., and Young v. American Mini Theatres, Inc.,

regarding the regulation of aduit-oriented businesses, there is no

conflict created by the decision below and there are no important

questions of federal law raised by the Petition. There is, therefore, no

reason for this Court to accept jurisdiction of this case.

> Counties operating under county charters shall have all powers of local

self-government not inconsistent with general law, or with special law

approved by vote of the electors. The governing body of a county

operating under a charter may enact county ordinances not inconsistent

with general law. The charter shall provide which shall prevail in the

event of conflict between county and municipal ordinances.

Fla. Const. art. VII, § 1(g).

14

CONCLUSION

For the foregoing reasons, the Petition for Writ of Certioran

should be denied.

Respectfully submitted,

JOHN J. COPELAN, JR.*

County Attomey for Broward County

TRACY H. LAUTENSCHLAGER

Assistant County Attomey

Suite 423, Governmental Center

115 South Andrews Avenue

Fort Lauderdale, Florida 33301

Telephone: (305) 357-7600

Telecopier: (305) 357-7641

*Counsel of Record

DATED: February 17, 1992

15

APPENDIX

ORDINANCE NO. 77-48

AN ORDINANCE AMENDING CHAPTER 39 OF THE

BROWARD COUNTY CODE OF ORDINANCES; PRO-

VIDING FOR THE ESTABLISHMENT OF CERTAIN USES

AND ACCESSORY USES WHICH, WHEN CLUSTERED

TOGETHER OR LOCATED IN CLOSE PROXIMITY TO

EACH OTHER, TENDTO DEVALUATE BUSINESS AND

RESIDENTIAL PROPERTY VALUES; PROVIDING FOR

THE REGULATION AND RESTRICTION OF THE LOCA-

TIONS OF SUCH USES; PROVIDING DISTANCE LIMI-

TATIONS BETWEEN SUCH USES AND CHURCHES

AND SCHOOLS; PROVIDING FOR THE ADMINISTRA-

TION AND ENFORCEMENT OF THIS ORDINANCE;

PROVIDING FOR PENALTIES; PROVIDING FOR RE-

PEAL OF CONFLICTING ORDINANCES; PROVIDING

FOR SEVERABILITY; PROVIDING FOR INCLUSION IN

THE CODE;AND PROVIDING FOR AN EFFECTIVE

DATE.

WHEREAS, it has been demonstrated that the establishment

of certain businesses in business districts has a deleterious effect on

both business and residential segments of the neighborhood causing

blight and a downgrading of the property values; and

WHEREAS, the prohibition against the establishment of two

(2) designated uses within one thousand (1,000) feet of each other

serves to avoid the clustering of certain businesses which, when

located in close proximity to each other, tend to create a downgrading

in both business and residential property values; and

WHEREAS, the concentration of certain uses and accessory

uses in business districts tends to interfere with the operation of other

businesses and tends to discourage patrons from trading with other

business enterprises not included in the list of uses and accessory uses

set forth in this Ordinance; and

WHEREAS, it is deemed that this Ordinance is necessary for

the preservation of the public peace, morals, health, safety and

welfare of the inhabitants of Broward County, Florida, NOW, THERE-

FORE,

BEIT ORDAINED BY THE BOARD OF COUNTY COM-

MISSIONERS OF BROWARD COUNTY, FLORIDA:

Section 1.DEFINITIONS

1.01 Designated use.

For the purpose of this Ordinance, the term “designated use”

shall mean and include such designated uses or accessory uses as shall

be included in this Ordinance and which may from time to time be

added to this Ordinance by amendment as the Board of County

Commissioners of Broward County, Florida, in its continuing study

of the various uses and accessory uses permitted in Chapter 39 of the

Code of Ordinances of Broward County, Florida, may determine.

1.02 Adult Book Store.

For the purpose of this Ordinance, the term “adult book store”

means and includes an establishment having as a substantial or

significant portion of the stock in trade, books, magazines, and other

periodicals which are distinguished or characterized by their empha-

sis On matter depicting, describing or related to “Specified Sexual

Activities” or“Specified Anatomical Areas” (as defined below), or an

establishment with a segment or section devoted to the sale or display

of such material.

1.04 [sic] Adult Motion Picture Theater.

For the purpose of this Ordinance, the term “‘adult motion

picture theater” means and includes an enclosed building with a

capacity of fifty (SO) or more persons used for presenting material

distinguished or characterized by an emphasis on matter depicting,

describing or relating to “specified Sexual Activities” or “Specified

Anatomical Areas” (as defined below), for observation by patrons

therein.

A-2

1.05 Adult Mini Motion Picture Theater.

For the purpose of this Ordinance, the term “adult mini

motion picture theater” means and includes an enclosed building with

a capacity for less than fifty (50) persons used for presenting material

distinguished or characterized by an emphasis on matter depicting,

describing or relating to “Specified Sexual Activities” or “Specified

Anatomical Areas” (as defined below), for observation by patrons

therein.

1.06 Specified Sexual Activities.

For the purpose of this Ordinance, the term “specified sexual

activities” shall mean and include:

(a) Human genitals in a state of sexual stimulation or arousal;

(b) Acts of human masturbation, sexual intercourse or sodomy;

and

(c) Fondling or other erotic touching of human genitals, pubic

region, buttock or female breast.

1.07 Specified anatomical Areas.

For the purpose of this Ordinance, the term “specified ana-

tomical areas”’ shall mean and include:

(a) Less than completely and opaquely covered:

(1) Human genitals, pubic region;

(2) Buttock; and at

(3) Female breast below a point immediately above the top

of the areola; and

(b) Human male genitals in a discernible turgid state, even if

completely and opaquely covered.

A-3

1.08 Group “D” Cabaret.

For the purpose of this Ordinance, the term “group ‘D’

cabaret” shall mean and include cabaret which features naked, topless

or bottomless dancers, entertainers or waitresses, go-go dancers,

exotic dancers, strippers, male or female impersonators, or similar

employees.

1.09 Massage Establishment.

The term “massage establishment’, as used in this Ordi-

nance, shall mean and include any shop, parlor, establishmeat or place

of business wherein all or any one or more of the following named

subjects and methods of treatments, are administered or practiced:

(a) Oil rubs, salt glows, hot or cold packs, all kinds of baths

including steam rooms, cabinet baths, sitz baths, colon ir-

rigations, body massage either by hand or by any mechani-

cal or electrical apparatus or device (excluding fever ther-

apy), applying such movements as stroking, friction, roll-

ing, vibration, kneading, cupping, petrissage, rubbing,

effleurage or tapotement.

(b) Nothing in this Ordinance shall be construed as applying to

State of Florida-licensed barbers, cosmetologists, mani-

curists, pedicurists, physical therapists, physical therapists

assistants, midwives, practical nurses, agents, servants or

employees in licensed hospitals or nursing home or other

licensed medical institutions, licensed physicians, osteo-

paths, chiropractors, podiatrists, naturopathic physicians

or other licensed medical practitioners, or their agents, ser-

vants or employees acting in the course of such agency,

service or employment.

1.10 Health spa.

For the purpose of this Ordinance, the term “health spa” shall

mean and include all health studios, exercise salons, relaxation spas,

health salons, health clubs and adult relaxation spas.

A-4

1.11 Encounter studio.

For the purpose of this Ordinance, the term “encounter

studio” shall mean and include all establishments offering nude

encounter sessions, encounter sessions between males and females,

nude dance encounter sessions, and sexual consultations.

Section 2. DISTANCE LIMITATIONS BETWEEN DES-

IGNATED USES

2.01 In the development, enforcement and amendment of

this Ordinance, it is recognized that there are uses and accessory uses

which because of their very nature are recognized as having serious

objectionable characteristics particularly when several of them are

concentrated in any given location, thereby having a deleterious

effect upon the adjacent business and residential areas. Special

regulation of these uses is necessary to ensure that these adverse

effects will not contribute to the blighting and downgrading of the

surrounding neighborhood. None of the designated uses set forth in

this Ordinance, or added from time to time to this Ordinance by

amendment, shall be located nearer to the same or any other desig-

nated use nor nearer to any church or public, private or parochial

elementary, middle or high school than one thousand (1,000) feet

measured along the shortest possible line lying entirely within public

streets, such measurement being between the nearest entrance to the

designated use and the nearest entrance to another designated use, or

the nearest entrance of the designated use and the nearest point on the

plot occupied by the church or school.

Section 3. DESIGNATED USES

3.01 The following uses are declared to be “designated uses”:

(a) Adult Book Store.

(b) Adult Motion Picture Theater.

(c) Adult Mini Motion Picture Theater.

(d) Group “D” Cabaret.

(e) Massage Establishment.

(f) Health Spa.

(g) Encounter Studio.

A-5

se

Section 4. APPLICATION TO NEW CHURCHES AND

SCHOOLS

4.01 Where adesignated use is located in conformity with the

provisions of this Ordinance, the subsequent locating of a church or

school within one thousand (1,000) feet of such existing designated

use shall not be construed to cause such designated use to be in

violation of this Ordinance.

Section 5. ORDINANCE NOT RETROACTIVE

5.01 The provisions of this Ordinance shall not be construed

to be retroactive, and any existing designated use which conformed to

the regulations in effect when such designated use was established

shall not be rendered illegal or in violation through the adoption of this

Ordinance or amendments to this Ordinance, so long as the occupa-

tional license issued for such use remains in full force and effect and

is renewed in a timely manner.

Section 6. PENALTY

6.01 Any person convicted of a violation of this Ordinance

shall be punished as provided by law.

Section 7. REPEAL OF CONFLICTING ORDINAN

7.01 All ordinances or parts of ordinances in conflict here-

with are hereby repealed only to the extent necessary to give this

Ordinance full force and effect.

Section 8. SEVERABILITY

8.01 If any section, sentence, clause or phrase of this

Ordinance is held to be invalid or unconstitutional by any Court of

competent jurisdiction, then said holding shall in no way affect the

validity of the remaining portions of this Ordinance.

A-6

Section 9. INCLUSION IN CODE

9.01 Itis the intention of the Board of County Commissioners

that the provisions of this Ordinance shall become and be made a part

of the Broward County Code; and that the sections of this Ordinance

may be renumbered or relettered and the word “ordinance’ may be

changed to “section,” “article,” or such other appropriate word or

phrase in order to accomplish such intentions.

Section 10. EMERGENCY ENACTMENT

10.01 This Ordinance shall be immediately certified by the

Clerk of the Board to the Department of State and shall take effect

upon receipt of official acknowledgment from that office that it has

been filed, or, if adopted as an emergency enactment, upon its mailing

by Special Delivery and Registered Mail to the Department of State.

ENACTED this 16th day of September, A.D., 1977.

FILED WITH DEPARTMENT OF STATE

September 22, 1977

EFFECTIVE September 26, 1978

AP:ed

9/20/77

1086-358

A-7

ORDINANCE NO. 78-33

AN ORDINANCE RELATING TO THE PROHIBITION

OF CERTAIN DESIGNATED USES WITHIN FIVE

HUNDRED (500) FEET OF THE RESIDENTIALLY

ZONED DISTRICTS LISTED HEREIN EXCEPT WHEN

FIFTY-ONE PERCENT (51%) OF THOSE PERSONS

OWNING REAL PROPERTY, RESIDING OR DOING

BUSINESS WITHIN FIVE HUNDRED (500) FEET OF

THE PROPOSED LOCATION WAIVE SAID PROHIBI-

TION AS HEREIN PROVIDED; AMENDING CHAPTER

39 OF THE BROWARD COUNTY CODE OF ORDI-

NANCES AND ORDINANCE NO. 77-48 ACCORDINGLY;

AMENDING ORDINANCE NO. 77-48 TO CHANGE THE

METHOD OF MEASURING DISTANCES RELATING

TO ALL DESIGNATED USES; PROVIDING FOR PEN-

ALTIES; PROVIDING FOR SEVERABILITY PROVID-

ING FOR INCLUSION IN THE CODE; AND PROVIDING

FOR AN EFFECTIVE DATE.

(Sponsored by Commissioner Kolb)

WHEREAS, it has been demonstrated that the establishment

of certain businesses in business districts has a deleterious effect on

both the business and residential segments of the neighborhood,

Causing blight and a downgrading of the property values; and

WHEREAS, the prohibition in Ordinance No. 77-48 against

the establishment of two (2) designated uses within one thousand

(1,000) feet of each other serves to avoid the clustering of certain

businesses which, when located in close proximity to each other, tend

to create a downgrading in both business and residential property

values, and

WHEREAS, such prohibition fails to avoid the deleterious

effects of blight and devaluation of both business and residential

property values resulting from the establishment of a designated use

(an adult book store, adult motion picture theater, group “D” cabaret,

massage establishment, health spa or encounter studio, as those terms

are defined in Ordinance No. 77-48) in a business district which is

A-8

immediately adjacent to and which serves residential neighborhoods;

and

WHEREAS, concem for a pride in the orderly planning and

development of a neighborhood should be encouraged and fostered in

those persons who comprise the business and residential segments of

that neighborhood; and

WHEREAS, the Board of County Commissioners and the

Building and Zoning Enforcement Division of the Community Serv-

ices Department of Broward County, Florida, should be guided by the

expressed will of those businesses and residents which are immedi-

ately adjacent to the proposed location of, and therefore most affected

by the existence of, any designated use; and

WHEREAS, it is deemed that this Ordinance is necessary for

the preservation of the public peace, morals, health, safety and

welfare of the inhabitants of Broward County, Florida; NOW, THERE-

FORE,

BEIT ORDAINED BY THE BOARD OF COUNTY COM-

MISSIONERS OF BROWARD COUNTY, FLORIDA:

Section 1. That Section 1 of Ordinance No. 77-48 is hereby

amended by amending subsection 1.08 and subdivision (b) of subsec-

tion 1.09 and by adding subsections 1.12, 1.13, 1.14 and 1.15, to read:

1.08 Group “D” Cabaret.

For the purpose of this Ordinance, the term “group ‘D’

cabaret” shall mean and include any place of business or establish-

ment _or cabaret which features the following naked, topless or

bottomless employees: dancers, entertainers or waitresses, g0-g0

dancers, exotic dancers, strippers, male or female impersonators, or

similar employees.

1.09 Massage Establishment

A-9

(a)

(b) Nothing in this Ordinance shall be construed as applying

to State of Florida-licensed barbers, cosmetologists, manicurists,

pedicurists, physical therapists assistants, midwives, practical nurses,

agents, servants or employees in licensed hospitals or nursing home

or other licensed medical institutions, licensed physicians, osteo-

paths, chiropractors, podiatrists, naturopathic physicians or other

licensed medical practitioners, or their agents, servants or employees

acting in the course of such agency, service oremployment- under the

supervision of the licensee.”

1.12 Person

For f thi in word “ "m

and includes any adult individual. firm, association, joint venture,

hi i i fiduci -

tion, or mbination thereof, or r enti

1.13 Residentially zoned district.

For f thi i rm “‘residentiall

Zz istrict” incl istricts R-1A, R-1B,R-1C,R-1P

R-1T, R-2, R-2P, R-2U, R-3, R- R-4, R-4A, R-4B, R-5, R-6, T-1

T-1 -1B, T-1C, PUD, A-1, D-1, E-1 E-2 in uni

Brow n istri n idential in wi

in r lati f municipality withi Ww

n Vi wi i nt or for in

1.15 Alcoholic Beverage.

Section 2. That subsection 1.09 of Ordinance No. 77-48 is

hereby amended by adding a subdivision (c) to read:

Vi howev for f this Ordinance

ke li nt” sh incl any massage

Li WwW in_at | ne (1 f Florida-licensed

masseur Or masseuse is employed and on duty fulltime during the

h n for busi

Section 3. That Section 2 of Ordinance No. 77-48 is hereby

amended by amending subsection 2.01 and by adding subsections

2.02 and 2.03, to read:

2.01 In the development, enforcement and amendment of

this Ordinance, it is recognized that there are uses and accessory uses

which because of their very nature are recognized as having serious

objectionable characteristics particularly when several of them are

concentrated in any given location, thereby having a deleterious

effect upon the adjacent business and residential areas. Special

regulation of these uses is iiecessary to ensure that these adverse

effects will not contribute to the blighting and downgrading of the

surrounding neighborhood. None of the designated uses set forth in

this Ordinance, or added from time to time to this Ordinance by

amendment, shall be located nearer to the same or any other desig-

nated use nor nearer to any church or public, private or parochial,

kindergarten, nursery, elementary, middle or high school,, or day care

center that one thousand (1,000) feet. Measurement of the one

d in a

w wi se r-

waiver from th ildi En-

fo — nt Division of — Coun ts Honda, that shall permit the

ifically whi ig-

cuadiaanis teuahe aie aueiaiaiels within five hundred (500) feet

of my real property, residence or business.” Building and Zoning

Enforcement Division shall carefully-investigate the petition and

Signatures on the petition to verify that the petitioners do in fact own

real property, or reside or do business in a residentially zoned district

within five hundred (SOO) feet of the proposed designated use

Measurement of the five hundred (500) feet shall be made in accor-

dance with subsection 2.03 hereof.

Section 4. That Section 4 of Ordinance No. 77-48 is hereby

amended, to read:

Section 4. APPLICATION TO NEW CHURCHES, AND

R D DIS-

TRICTS

4.01 Where adesignated use is located in conformity with the.

provisions of this Ordinance, the subsequent locating of a church or

school within one thousand (1,000) feet, ora residentially zoned

district within five hundred (500) feet, of such existing designated use

shall not be construed to cause such designated use to be in violation

of this Ordinance.

Section 5. PENALTY

5.01 Any person convicted of violating any portion of this

Ordinance shall be punished as provided by law.

Section 6. SEVERABILITY

6.01 If any section, sentence, clause or phrase of this

Ordinance is held to be invalid or unconstitutional by any Court of

competent jurisdiction, then said holding shall in no way affect the

validity of the remaining portions of this Ordinance.

Section 7. INCLUSION IN CODE

7.01 Itis the intention of the Board of County Commissioners

that the provisions of this Ordinance shall become and be made a part

of the Broward County Code; and that the sections of this Ordinance

may be renumbered or relettered and the word “ordinance” may be

changed to “section,” “article,” or such other appropriate word or

phrase in order to accomplish such intentions.

Section 8.EFFECTIVE DATE

8.01 This Ordinance shall become effective as provided by

law.

ENACTED this 27th day of June, A:D., 1978.

FILED WITH DEPARTMENT OF STATE THIS 6th DAY

OF JULY, A.D., 1978.

EFFECTIVE THIS 11th DAY OF JULY, A.D., 1978.