Opposition Brief — Sammy's of Mobile, Ltd. v. City of Mobile

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No. 98-994

Supreme Court

In The

Supreme Court of the United States

October Term, 1998

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SAMMY’S OF MOBILE, ET AL.,

Petitioners,

V.

CITY OF MOBILE, ALABAMA,

Respondent.

S

On Petition For Writ Of Certoriari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

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Roperick P. Stout, Esquire

Stout & RossLer

1 South Royal Street

3rd Floor

Mobile, Alabama 36602

(334) 432-2300

Counsel for Respondent

February 15, 1999

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

FEB 16 1999

COUNTER-QUESTION PRESENTED FOR REVIEW

Respondent disagrees with Petitioners’ Questions

Presented for Review. The sole question presented for

review is whether this Court should exercise its discre-

tion to grant the Petition, when the Petitioner has not

shown that the Court of Appeals has decided an impor-

tant question of law in conflict with relevant decisions of

this Court or other Courts of Appeal.

il

TABLE OF CONTENTS

Page

COUNTER-QUESTION PRESENTED FOR REVIEW... i

TABLE OF AU TIRORET ES . occ cc vcteeswenweesers xen iii

SAT ERERING GP T9068 CADE. ess sackovcibeseecens 1

A. STATEMENT OF PAC TDi. cicccccucessccnenbess 1

B. COURSE OF PROCEEDINGS AND DISPOSI-

TIONS IN THE COURTS BELOW.............. 3

L PELEESONER SARGRET OS i.e ce cienvevccvuans 3

II PETITIONER THE CANDY STORE ........ 4

Hl CONSOLIDATED CASES ccc cccensceesees 4

C. THE DISTRICT COURPS OPINIONS .......... 5

D. THE ELEVENTH CIRCUIT’S OPINIONS....... 7

REASONS FOR DENYING THE PETITION FOR

Weer. CF DBRS US, «6 ssc dwircnsweneeneeeeen 9

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE ELEVENTH

CIRCUIT’S DECISION IS CORRECT AND NOT IN

CONFLICT WITH DECISIONS OF THIS COURT

OR CrErsem CUR US CORRES 5 savas ciciaccneans 9

COREE % 5.05.5 be so kes Oe eee eee eee 23

ili

TABLE OF AUTHORITIES

Page

CASES

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

ES Tea OLS bm kT Ky ph o0v.ds os 00 5 ay 3 ey 11,

Acorn Invs. v. City of Seattle, 887 F.2d 219 (9th Cir.

ESS EEE ORE en ee a ee eS eee eee 21

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

Buzzetti v. City of New York, 140 F.3d 134 (2d Cir.),

cert. denied, an. ane out. 54° (1996) ....... 19

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

City of Newport v. Iacobucci, 479 U.S. 1047 (1987)

BD EY IES A or er ess eee ere eee eee 7; 9, 17,38

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

Ue Mey CE h eh CLP EE Ook b A Kec ds car esces passim

Clark v. Community for Creative Non-Violence, 468

RE A ee eee 11

D.G. Restaurant Corp. v. City of Myrtle Beach, 953

MR 6 ice hs gh oh edb ox ecenserccss 19

DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th

SE Se ee 16, 19

Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998)......... 19

Iacobucci v. City of Newport, 785 F.2d 1354 (6th Cir.

ES OTe On ee eee 18

] & B Entertainment, Inc. v. City of Jackson, vt F.3d

Ee eee er Sree 22

] & B Social Club, #1, Inc. v. City of Mobile, 920

a FE, | Breer 4

iV

TABLE OF AUTHORITIES - Continued

Page

] & B Social Club #1, Inc. v. City of Mobile, 966

PSempe. TAFE GAARA. TOFS) ooo cece is eewesenwene's 4,7

Marks v. United States, 430 U.S. 188 (1977)........... 16

Maryland v. Baltimore Radio Show, 388 U.S. 912

ER er ree ee re ee ee re ere rey Tee 9

New York State Liquor Auth. v. Bellanca, 452 U.S. 714

CURR cca hr eu cave Ye uR gas Veecne aeawene 7, ae Me ate OO

Perry v. Sindermann, 408 U.S. 593 (1972)............. 10

Phillips v. Borough of Keyport, 107 F.3d 164 (3rd Cir.

gs Ee eee ty ene er er ot are nner 22

Par he Ge, See Sh er Ce bat dsc ee cccasasbees 3

Postscript Enters. v. City of Bridgeton, 905 F.2d 223

ee ee Ser ers Ger eT er eee 21

Reno v. Am. Civil Liberties Union, ___ U.S. __, 117

DA See APONTE vas chins (aaa eka ueaeee See ee dae 13

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)...... 1]

Sammy's of Mobile, Ltd. v. City of Mobile, 928

ce ee ee en ee ee eee 3

Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d

993 (11th Cir.), reh’g denied, 156 F.3d 188 (11th

CO DOOR Ach sah aneeast uke rok no bees cae ues 4,5, 7, 8

Steakhouse, Inc. v. City of Raleigh, 1999 WL 22978,

No. 97-2341 (4th Cir. Jan. 21, 1999) ............... 15

U.S. v. O'Brien, 391 UST 367 (1968) 2... ceccccas passim

Village of Hoffman Estates v. Flipside, Hoffman

Estates, int., 0 Ud. GP CaP ks 0000s cknveseccuns 3

TABLE OF AUTHORITIES .- Continued

Page

Wall Distrib., Inc. v. City of Newport News, 782 F.2d

per ge. Be Re ee ee ee er Te 20, 21

Young v. American Mini Theatres, Inc., 427 U.S. 50

PRR vieistioekcckhaneeu kod eaucees SEE, Boy Boe 80s

Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683

(10th Cir.), cert. denied, __ U.S. __, 119 S.Ct.

ee eT seared ener Mere verre rae ns" 19

FEDERAL CONSTITUTION AND STATUTE

UB: Geek, TOR BM a ois Svein Nine beaver passim

ah aw" Bes errr rae

Ak toe Serre rrr rrr rrr core rer. rr 5

ORDINANCE

City of Mobile, Ala. Ordinance 03-003 ......... 2, 3, 10

STATEMENT OF THE CASE

Respondent disagrees with Petitioners’ Statement of

the Case to the extent that it is argumentative and con-

tains facts immaterial to the question presented for

review.

A. Statement of Facts.

On February 6, 1996, the Mobile City Council

adopted Ordinance 03-003, which bans adult entertain-

ment, including nude or topless female dancing, in estab-

lishments licensed to sell alcoholic beverages. The

Ordinance provides:

It shall be unlawful for any manager, officer,

agent, servant, employee, or person in charge of

any establishment within the City of Mobile or

the police jurisdiction thereof, licensed to sell

spiritous or vinous liquors or malt or brewed

beverages under the law of the State of Ala-

bama, knowingly to exhibit, suffer, allow, per-

mit, engage in, participate in, or be connected

with, any motion picture, show, performance, or

other presentation upon the licensed premises,

which, in whole or in part, depicts nudity or

sexual conduct or any simulation thereof.’

1 The Ordinance defines “nudity” as:

[T]he showing of the human male or female genitals,

pubic area, or buttocks with less than a fully opaque

covering, or the showing of the female breast with

less than a fully opaque covering of any por-

tion thereof below the top of the darkened area

surrounding the nipple, or the depiction of covered

male genitals in a discernably turgid state.

The preamble to the Ordinance provides:

WHEREAS, the City Council of the City of

Mobile, Alabama, finds and declares that nudity

and sexual conduct and depiction thereof, cou- |

pled with alcohol in public places, encourages

undesirable behavior and is not in the interest of

the public health, safety, and welfare.

WHEREAS, the Council has chosen to avoid the

disturbances associated with mixing alcohol and

nude dancing by means of a reasonable restric-

tion upon establishments which sell spiritous or

vinous liquor or malt or brewed beverages.

NOW, THEREFORE, the Council adopts this

Ordinance pursuant to the powers under the

Twenty-first Amendment to the Constitution of

the United States delegated to it by the State of

Alabama.

City of Mobile, Ala. Ord. 03-003.

At the time the Ordinance was adopted, the Peti-

tioners were licensed to sell alcoholic beverages and

offered topless female dancing on their premises. The

Petitioners Sammy’s of Mobile, Ltd., and Sammy’s Man-

agement Company, Inc. (collectively referenced as

“Sammy’s”) thereafter surrendered their liquor license

and continued to offer female topless, as well as totally

nude, dancing. The Petitioners J & B Social Club #1,

doing business as “The Candy Store” and its owner Jen-

nifer Bodiford (collectively referenced as “The Candy

Store”) did not surrender their license and continues to

provide topless dancing. City officials have expressed an

intent to enforce the ordinance against bars offering

topless female dancing, nothing more. (Pet’rs Appendix

to Pet. for Writ of Cert. (“App.”) 39a and 63a).?

B. Course of Proceedings and Dispositions in the

Courts Below.

The Petitioners filed two separate actions against the

City of Mobile (“City”) arising out of the February 6, 1996

enactment of City Ordinance 03-003 (“Ordinance”).

I. Petitioner Sammy’s.

On February 22, 1996, Sammy’s filed a complaint and

a motion for a temporary restraining order against the

City in state court. Sammy’s alleged, inter alia, that the

Ordinance violated its protections under First Amend-

ment to the United States Constitution.

On February 26, 1996, the case was removed to the

United States District Court for the Southern District of

Alabama pursuant to 28 U.S.C. § 1441. The District Court

heard Sammy’s motion on February 29, 1996. (App. 66a).

On March 6, 1996, the District Court denied Sammy’s

motion. Sammy’s of Mobile, Ltd. v. City of Mobile, 928

F.Supp. 1116 (S.D.Ala. 1996) (App. pp. 65a-76a).

2 The case at bar arose in the context of a pre-enforcement

challenge. Mobile has repeatedly stated it only intends to

enforce the ordinance against topless bars. Accordingly, the

District Court declined to consider an overbreadth challenge

because it is not yet ripe, citing Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 n.1 (1982) and Poe

v. Ullman, 367 U.S. 497 (1961).

II. Petitioner The Candy Store.

On March 12, 1996, The Candy Store filed a com-

plaint and a motion for injunctive relief in the District

Court. This complaint likewise alleged, inter alia, that the

Ordinance violates the First Amendment.

The District Court held a hearing on The Candy

Store’s injunctive motion on March 19 and 20, 1996. (App.

p. 54a). On March 26, 1996, the District Court denied The

Candy Store’s motion for injunctive relief. J] & B Social

Club, #1, Inc. v. City of Mobile, 920 F.Supp. 1241 (S.D.Ala.

1996) (App. 53a-64a).

III. Consolidated Cases.

The District Court consolidated the two cases with-

out objection on April 23, 1996.

On August 12, 1996, the Petitioners and Respondent

informed the District Court that only questions of law

were at issue, that no material fact disputes existed, and

the cases were amenable to summary judgment. (App.

37a). Motions for summary judgment and responses were

filed by all parties, and following oral argument the

District Court granted the City’s motion for summary

judgment and entered a final judgment thereon uphold-

ing the Ordinance. J & B Social Club #1, Inc. v. City of

Mobile, 966 F.Supp. 1131 (S.D.Ala. 1996) (App. 35a-52a).

The Petitioners filed a timely notice of appeal to the

United States Court of Appeals for the Eleventh Circuit.

On May 8, 1998, the Court of Appeals affirmed the judg-

ment of the District Court. Sammy’s of Mobile, Ltd. v. City

of Mobile, 140 F.3d 993 (11th Cir. 1998) (App. 1a-34a).

RES TPS

On May 20, 1998, the Petitioners petitioned for

rehearing en banc by the Court of Appeals. The Court of

Appeals denied Petitioners’ request for rehearing. 156

F.3d 188 (App. 77a).

C. The District Court’s Opinions.

In denying the Petitioners injunctive relief, the Dis-

trict Court followed California v. LaRue, 409 U.S. 109

(1972) and its progeny. (App. pp. 65a-76a). Within that

line of cases, the Court stated that the Twenty-first

Amendment provided any such regulation an added pre-

sumption in favor of its validity. LaRue, at 118-119.

Prior to the District Court’s consideration of sum-

mary judgment motions, the Court rendered its decision

in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

In light of the 44 Liquormart opinion, the District Court

concluded the Twenty-first Amendment no longer pro-

vides an “added presumption” in favor of the validity of

state liquor regulations. The District Court observed that,

while the Court in 44 Liguormart rejected the idea that the

Twenty-first Amendment “trumps” the First amendment

in the area of liquor regulation, the Court in 44 Liquormart

upheld LaRue and its progeny and provided a “roadmap”

for upholding state regulations of adult entertainment in

bars. Specifically, the Court cited two cases which vali-

dated state regulation of adult entertainment without the

presence of alcohol being an issue. 44 Liquormart, 517 U.S.

484, 515 (citing Young v. American Mini Theatres, Inc., 427

U.S. 50 (1976) (upholding a zoning ordinance separating

“adult” theaters from residential neighborhoods and

churches) and Barnes v. Glen Theatre, Inc., 501 U.S. 560

(1991) (upholding an Indiana public indecency statute

which applied in the context of barroom topless female

dancing)).

The District Court applied the Barnes analysis, first

developed in U.S. v. O'Brien, 391 U.S. 367 (1968). This

four-part test provides that expressive conduct can be

validly regulated if (1) the regulation is a legitimate exer-

cise of authority, (2) furthers an important or substantial

governmental interest, (3) the governmental interest is

unrelated to the suppression of free speech, and (4) the

restriction of First Amendment rights is no greater than

necessary to further the government's interest. Id.

The petitioners primarily take issue with the District

Court rulings that the Mobile ordinance satisfies the sec-

ond and third prongs of the Barnes analysis. The peti-

tioners argue that Mobile must come forth with empirical

evidence of “adverse secondary effects” prior to regulat-

ing adult entertainment in a barroom atmosphere; other-

wise, petitioners contend the regulation is related to the

suppression of free speech, or content-based.

Both the District Court and the Eleventh Circuit

rejected this argument. The District Court, citing Justice

Souter’s Barnes concurrence, held there is no constitu-

tional requirement that the City make particularized find-

ings regarding adverse secondary effects. The District

Court found the City had a “reasonable basis” for believ-

ing the ordinance will serve its substantial governmental

interest grounded in the experience of other cities,

studies done in other cities, caselaw reciting findings on

the issue, as well as the city’s own wisdom and common

sense. J] & B Social Club #1, Inc. v. City of Mobile, 966

F.Supp. at 1138. (App. 47a).

D. The Eleventh Circuit’s Opinion.

The Eleventh Circuit affirmed the District Court’s

judgment. Sammy/’s of Mobile v. City of Mobile, 140 F.3d 993

(see App. 1a-34a).

The Eleventh Circuit initially noted the Court’s val-

idation of regulations, such as Mobile’s, in LaRue, New

York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981) and

City of Newport v. Iacobucci, 479 U.S. 1047 (1987), and

observed in 44 Liquormart, the Court reaffirmed the prece-

dential value of LaRue, as well as the Barnes-O’Brien test.

The Eleventh Circuit recognized the Court’s explanation

that “[e]ntirely apart from the Twenty-first Amendment,

the State has ample power to prohibit the sale of alcoholic

beverages in inappropriate locations,” and, even after 44

Liquormart, LaRue “would come out the same way.” 44

Liquormart, 517 US... at 345.

The Eleventh Circuit applied the Barnes-O’Brien test

and agreed with the District Court that the Mobile ordi-

nance was a constitutionally permitted regulation of

expressive conduct.

The Court of Appeals rejected the petitioners’ claim

that the lack of empirical evidence invalidates the ordi-

nance, finding that Mobile had a “reasonable basis” for

believing that its ordinance will serve the substantial gov-

ernmental interest in avoiding the adverse secondary

effects of “nudity and sexually explicit entertainment cou-

pled with alcohol in public places.” 140 F.3d at 997. The

Eleventh Circuit assessed the City’s basis for the regula-

tion as reasonable and sufficient in that Mobile relied upon

the “experience of other cities, studies done in other cities,

caselaw reciting findings on the issue, as well as their own

wisdom and common sense.” Id. Under Barnes there is not

a requirement that a city make particularized findings

regarding adverse effects of the combination of alcohol

and nude entertainment, and the Court of Appeals consid-

ered this Court’s observation in Bellanca that “[c]lommon

sense indicates that any form of nudity coupled with

alcohol in a public place begets undesirable behavior.” 452

U.S. at 718.

The Eleventh Circuit majority dismissed the peti-

tioners’ argument that the Mobile ordinance is “content-

based,” as a conclusion clearly departing from prior cases

holding that regulations such as Mobile’s are not aimed at

the erotic message of nude dancing, but the adverse sec-

ondary effects arising from the combination of alcohol and

nude dancing. The Court of Appeals rejected equating

reference to content with content suppression, and applied

the Barnes-O’Brien intermediate level of scrutiny for regu-

lations which distinguish between nude and clothed enter-

tainment.

The Eleventh Circuit correctly observed that Mobile

defends its ordinance as an attempt to combat the second-

ary effects of nude performance in a barroom atmosphere

and concluded that the Mobile ordinance does not seek to

ban whatever message is conveyed by nude dancing, or

even to ban nude dancing. Indeed, the petitioner Sammy’s

may, and has since the ordinance was adopted, offer com-

pletely nude dancing without the sale of alcohol.

¢

REASON FOR DENYING THE

PETITION FOR WRIT OF CERTIORARI

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE ELEVENTH CIR-

CUIT’S DECISION IS CORRECT AND NOT IN CON-

FLICT WITH DECISIONS OF THIS COURT OR

OTHER CIRCUIT COURTS.

(1)

The instant case is one of first impression among the

circuits. The Eleventh Circuit is the first United States

Court of Appeals to consider a governmental regulation

of adult entertainment in liquor-licensed establishments

since the determination in 44 Liquormart that such regula-

tions no longer have an added presumption of validity.

As such, the Court should not grant the instant petition

for a writ of certiorari.3

The Court has long upheld regulations prohibiting

nude dancers in licensed liquor establishments. LaRue,

409 U.S. 109, Bellanca, 452 U.S. 714, City of Newport, 479

U.S. 92. In 44 Liquormart, the Court stated that LaRue used

the Twenty-first Amendment as merely a “buttress” to

the conclusion that the First Amendment did not invali-

date prohibiting sexual exhibitions in premises licensed

to serve alcoholic beverages. 517 U.S. at 515-16. In mak-

ing those comments, the Court forestalled the view that

3 In denying a petition for writ of certiorari, Justice

Frankfurter issued an opinion, stating:

It may be desirable to have different aspects of an

issue further illumined by the lower courts. Wise

adjudication has its own time for ripening.

Maryland v. Baltimore Radio Show, 388 U.S. 912, 918 (1950).

10

44 Liquormart was the death knell for prohibiting nude

entertainment in bars. By stating that LaRue “would come

out the same way,” in 44 Liquormart, the Supreme Court

also reaffirmed, by citing Barnes-O’Brien, that the inter-

mediate level of scrutiny applies to the prohibition of

nudity in liquor license establishments rather than the

strict scrutiny test advocated by the petitioners.

(2)

The preamble to Mobile’s ordinance specifies that the

Mobile City Council found that “nudity and sexual con-

duct... , coupled with alcohol in public places, encour-

ages undesirable behavior and is not in the interest of the

public health, safety, and welfare.” As such, the City

Council enacted the ordinance prohibiting this mixture to

avoid the disturbances associated therewith. The stated

purposes of the ordinance combine elements of combat-

ing adverse secondary effects as well as protecting soci-

etal order and morality, with only an incidental impact on

expressive conduct. Accordingly, the ordinance is con-

tent-neutral. See Barnes, 501 U.S. at 567-68 (plurality opin-

ion) and 501 U.S. at 582 (Souter, J., concurring in the

judgment).

The petitioners misplace reliance on Perry v. Sinder-

mann, 408 U.S. 593, 597 (1972), for the proposition that the

Mobile ordinance unconstitutionally conditions the con-

ferral of a benefit (a liquor license) on the surrender of a

constitutional right (the right to dance nude). The Court

rejected this contention in Barnes, finding that regulations

affecting adult entertainment are constitutional if they

satisfy the O’Brien analysis. 501 U.S. at 566-67 (plurality

11

opinion); 501 U.S. at 582 (Souter, J., concurring). The

Court has not recognized a fundamental right to unre-

strained nude dancing in all settings. Cf. Young v. Ameri-

can Mini Theatres, 427 U.S. 50, 79 n. 2 (1976) (Powell, J.,

concurring) (“The communication involved here [adult

movies] is not a kind in which the content or effective-

ness of the message depends in some measure upon

where or how it is conveyed.”).

Further, the petitioners confuse the Court’s analysis

in commercial speech cases with the content-neutral test

for regulations of adult entertainment which incidently

affect expressive conduct. (Pet. at 27). In 44 Liquormart, the

Court clarified that either the American Mini Theatres

“time, place and manner” analysis or the Barnes-O'Brien

test is utilized in considering prohibitions of topless

dancing in places where alcohol is served. 517 U.S. at 515.

The Court noted, “LaRue did not involve commercial

speech about alcohol, but instead concerned the regula-

tion of nude dancing in places where alcohol was

served.” Id., at 515-16 (quoting Rubin v. Coors Brewing Co.,

514 U.S. 476, 482 n. 2 (1995)).

The Mobile ordinance is a content-neutral prohibition

of adult entertainment in places-where alcohol is served.

The Eleventh Circuit properly subjected the ordinance to

the O’Brien intermediate level of scrutiny set forth in

Barnes.4

4 In Barnes, the Court observed that its analysis of “time,

place, or manner” regulations of adult entertainment, most

recently applied in City of Renton v. Playtime Theatres, Inc., 475

U.S. 41 (1986), embodies much the same standards as those set

forth in O’Brien. Barnes, 501 U.S. at 566 (citing Clark v.

Community for Creative Non-Violence, 468 U.S. 288 (1984).

12

(3)

The petitioners incorrectly argue, based in large part

on their lengthy citation to the Eleventh Circuit’s dissent,

that the third prong of the Barnes-O’Brien test (govern-

mental interest is unrelated to the suppression of free

expression) was not satisfied by Mobile’s ordinance. The

petitioners contend ‘hat Mobile’s ordinance fails to sat-

isfy this element which subjects the ordinance to the

“searching” level of scrutiny applied to content-based

laws. Thus, the petitioners’ argument goes, the Eleventh

Circuit’s opinion conflicts with the decisions of the Court.

The Eleventh Circuit held that the Mobile ordinance

satisfies the third part of the Barnes-O’Brien analysis and

ruled the important or substantial governmental interest

set forth in the preamble to the ordinance is unrelated to

the suppression of free expression. This ruling does not

conflict with the decisions of this Court.

On its face, the ordinance is aimed at combating the

adverse secondary effects of the mixture of adult enter-

tainment and the sale of alcohol by the drink, which is

not at all inherently related to expression. See Barnes, 501

U.S. at 585 (Souter, J., concurring). The City’s “secondary

effects” justification indicates that enforcement of the

ordinance against nude dancing in bars is “justified with-

out reference to the content of the regulated [expres-

sion].” Id., at 586 (quoting Renton, 475 U.S. at 48).

The claim in Barnes, as in the instant case, was that

the proscription was unconstitutional as applied to nude

dancing. The plurality concluded, “[i]t was not the danc-

ing that was prohibited, but simply its being done in the

nude.” Barnes, 501 U.S. at 571. In the instant case, Mobile

13

“has silenced no message, has invoked no censorship,

and has imposed no limitation upon those who wish to

view [topless dancing].” American Mini Theatres, 427 U.S.

at 78 (Powell, J., concurring). The ordinance is addressed

only to the places at which this type of expression may be

presented, specifically not at those places where alcohol

is served, a restriction that does not interfere with con-

tent. If Mobile had been concerned with the message

purveyed by topless dancing establishments, it would

have prohibited them rather than only proscribing topless

dancing in a barroom atmosphere. Yet, no party disputes

that Sammy’s, having surrendered its liquor license, can

present topless or completely nude dancing without vio-

lating the ordinance. The Eleventh Circuit correctly con-

cluded that “Mobile is attempting only to regulate the

sale of alcohol in inappropriate places and it has deter-

mined that it is inappropriately sold in places where nude

dancing is offered.” (App. 10a).

The Mobile ordinance is not intended to suppress the

message of nude dancing, or the primary effects of

“offensive speech,” but rather the negative secondary

effects concomitant with the consumption of liquor in

such situations. Cf. Reno v. Am. Civil Liberties Union, __

U.S. __, 117 S.Ct. 2329, 2342 (1997) (purpose of Commu-

- nications Decency Act of 1996 was “to protect children

from the primary effects of ‘indecent’ and ‘patently offen-

sive’ speech, rather than any ‘secondary’ effect of such

speech” thus Act was content-based (emphasis added)).

14

The Eleventh Circuit’s holding that the Mobile ordi-

nance is unrelated to the suppression of free expression

complies with the Court’s jurisprudence.

(4)

The Eleventh Circuit found that the Mobile ordinance

satisfies the second Barnes-O’Brien prong because it fur-

thers an important or substantial governmental interest.

In so holding, the Court of Appeals determined that

Mobile had a “reasonable basis” for believing its ordi-

nance will serve its substantial governmental interest in

avoiding the adverse secondary effects of “nudity and

sexually explicit entertainment coupled with alcohol in

public places.” (App. 7a). The Eleventh Circuit located

this reasonable basis “in the experience of other cities,

studies done in other cities, caselaw reciting findings on

the issue, as well as their own wisdom and common

sense.” (Id.).

Petitioners claim the Eleventh Circuit’s conclusion

conflicts with the decisions of other circuits. The peti-

tioners contend there is a “dramatic” split among the

circuits on the issue of the necessity for governmental

entities to establish and support a “legitimate or substan-

tial governmental objective” when enacting legislation

prohibiting nudity in bars. (Pet. 24).

The petitioners’ contention is unfounded. Quite sim-

ply, the directly controlling precedent in the instant case

is Barnes and LaRue. Further, the decisions from several

circuits, cited by petitioners, do not conflict with the

holding in the instant case and do not contradict the

Court’s holdings in Barnes and LaRue. Accordingly, no

15

conflict exists, either among the circuits or with the

Court.

The Eleventh Circuit correctly assessed that the

Mobile ordinance is aimed at the very type of harm found

to create a substantial government interest in LaRue and

Barnes. (App. 7a). In LaRue, the Court found rational the

state’s conclusion that “certain sexual performances and

the dispensation of liquor by the drink ought not to

occur...” 409 U.S. at 118. In this respect, as the Fourth

Circuit recently noted, the Court considered that

““[pjrostitution occurred in and around [topless bars],

and involved some of the female dancers’ and that

‘[i]Jndecent exposure to young girls, attempted rape, [and]

rape itself’ also were quite common around such estab-

lishments.” Steakhouse, Inc. v. City of Raleigh, 1999 WL

22978 at *3, No. 97-2341 (4th Cir. Jan. 21, 1999) (quoting

LaRue, 409 U.S. at 111) (recognized that “nude and topless

barroom dancing have a long history of spawning delete-

rious effects [by] encourag[ing] prostitution and the crim-

inal abuse and exploitation of young women”).

Likewise, in Barnes, Justice Souter concluded that

Indiana’s public indecency statute, as applied to nude

dancers, served an important governmental interest

because such dancing “encourages prostitution, increases

sexual assaults, and attracts other criminal activity.” 501

U.S. at 582. The plurality determined the statute served

Indiana’s substantial governmental purpose “of protect-

ing societal order and morality.” Id. at 568. Again, indi-

vidualized findings of actual statewide conditions were

not present. Id. at 582 (“this justification has not been

articulated by Indiana’s legislature”). Instead, the Court

relied on Renton, American Mini Theatres and LaRue as

16

citing the adverse secondary effects arising from adult

entertainment, as well as the post hoc assertion of such

adverse effects set forth in Indiana’s brief. Barnes, at

582-584.

The petitioners argue that a conflict among the cir-

cuits exists concerning whether a governmental entity

must affirmatively establish a factual basis, or provide

evidence, to support its conclusion that important gov-

ernment interests are at stake, and the “motivation for

adopting regulations, beyond the mere conclusions stated

in the legislation itself.” (Pet. 23). The Court has clearly

foreclosed this question in Barnes. To the extent circuit

court cases may have imposed a different requirement,

they have been altered by Barnes. See Marks v. United

States, 430 U.S. 188 (1977); see also DLS, Inc. v. City of

Chattanooga, 107 F.3d 403, 410-11 (6th Cir. 1997) (recogniz-

ing pre-Barnes Sixth Circuit cases were altered by Barnes

analysis).

Under the Court’s opinions in Barnes, Mobile need

not await localized proof of the secondary effects it seeks

to alleviate. Further, the City is not required to come

forward with empirical evidence to support its reason-

able conclusions that a prohibition against nude dancing

in bars serves its substantial governmental interests. As

Justice Souter declared:

Our appropriate focus is not an empirical

inquiry 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.

17

The type of entertainment respondents seek to

provide is plainly of the same character as that

at issue in Renton, American Mini Theatres, and

LaRue. It is therefore no leap to say that live

nude dancing of the sort at issue here is likely to

produce the same pernicious secondary effects

....In light of Renton’s recognition that legisla-

tion seeking to combat the secondary effects of

adult entertainment need not await localized

proof of those effects, the State of Indiana could

reasonably conclude that forbidding nude enter-

tainment of the type offered at the Kitty Kat

Lounge and the Glen Theatre’s ‘bookstore’ fur-

thers its interest in preventing prostitution, sex-

ual assault, and associated crimes. . . . I do not

believe that a State is required affirmatively to

undertake to litigate this issue repeatedly in

every case. The statute as applied to nudity of the

sort at issue here therefore satisfies the second

prong of O’Brien.

Barnes, 501 U.S. at 582-584 (emphasis added).

Just as the State of Indiana could conclude that “the

higher incidence of prostitution and sexual assault in the

vicinity of adult entertainment locations results from the

concentration of men predisposed to such activities, or

from the simple viewing of nude bodies,” Barnes, 501 U.S.

at 586 (Souter, J., concurring), so too could the City of

Mobile reasonably conclude that similar results obtain

from similar concentrations of crowds in the barroom

setting. In fact, Mobile’s conclusion is even more reason-

able in light of the Court’s cases upholding such regula-

tions. LaRue, 409 U.S. 109, Bellanca, 452 U.S. 714, City of

Newport, 479 U.S. 92.

18

In LaRue, the Court catalogued the problems arising

from liquor-licensed adult entertainment establishments.

409 U.S. at 111. From this, the Court concluded California

had a rational basis for its conclusion that a regulation

banning adult entertainment in places serving alcohol

would further its interest in preventing “bacchanalian

revelries.” 409 U.S. at 118.

In Bellanca, the Court cited with approval the state’s

legislative memorandum, which is very similar to

Mobile’s preambulatory clause:

Common sense indicates that any form of

nudity coupled with alcohol in a public place

begets undesirable behavior. This legislation

prohibiting nudity in public will once and for

all, outlaw conduct which is now quite out of

hand.

452 U.S. at 717. The Court noted that, if legislative find-

ings were required to uphold the constitutionality of New

York’s statute banning topless dancing in bars, such find-

ings were satisfied by the purposes set forth in the legis-

lative memorandum. Id.

Finally, in City of Newport, the City, in its preamble,

determined that nude dancing in establishments serving

liquor was “injurious to the citizens” of the City. 479 U.S.

at 96. The City found the ordinance necessary for a range

of purposes, including “prevent[ing] blight and the dete-

rioration of the City’s neighborhoods” and “decreas[ing]

the incidence of crime, disorderly conduct and juvenile

delinquency.” Id. at 96-97. The Court rejected the Sixth

Circuit’s conclusion, Iacobucci v. City of Newport, 785 F.2d

1354, 1359 (6th Cir. 1986), that “the preamble to the

19

ordinance, standing alone, is insufficient evidence of the

motivating factors in its passage.”

Mobile was entitled to rely on the experience and

findings of other legislative bodies as a basis for its

adoption of its ordinance. There is no reason to believe

that the adverse secondary effects of topless dancing in

Mobile bars is likely to be different than the effects of

such topless dancing in California, New York or City of

Newport, Kentucky bars. For that matter, Mobile could

reasonably conclude that the negative secondary effects

arising from the topless dancing bars in the City of

Mobile are similar to the secondary effects arising from

topless dancing establishments in Indiana (Barnes) or

from the adult theaters in Detroit (American Mini Theatres)

and in Renton, Washington. See DLS, Inc. v. City of Chat-

tanooga, 107 F.3d 403, 411 (6th Cir. 1997).

Like the Eleventh Circuit, subsequent to Barnes and

Renton, the Second, Fourth, Sixth, Eighth and Tenth Cir-

cuit Courts of Appeals have agreed that governmental

entities are not required to produce empirical evidence

relating to their interest in ameliorating adverse second-

ary effects arising from adult entertainment. See Buzzetti

v. City of New York, 140 F.3d 134 (2d Cir-), cert. denied, __

U.S. __, 119 S.Ct. 54 (1998); D.G. Restaurant Corp. v. City

of Myrtle Beach, 953 F.2d 140 (4th Cir. 1991); DLS, Inc. v.

City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Farkas v.

Miller, 151 F.3d 900 (8th Cir. 1998); Z.J. Gifts D-2, L.L.C. v.

City of Aurora, 136 F.3d 683 (10th Cir.), cert. denied, __

U.S. __, 119 S.Ct. 162 (1998). Also, prior to Barnes and

shortly before Renton, the Seventh Circuit ruled that a

20

government need not prove the existence of adverse sec-

ondary effects which its legislation is designed to avoid.

Cf. Wall Distrib., Inc. v. City of Newport News, 782 F.2d

1165, 1169-70 (7th Cir. 1986).°

5 In upholding a restriction on adult entertainment

establishments, with no prior evidence of illegal activity arising

therefrom, the Seventh Circuit stated:

In assessing the reasonableness of local [legis-

lation] ..., we may not confine the local legislature to

only what it knows and can foresee from purely local

conditions already experienced. Legislatures can no

more be held bound not to know what the whole

world knows than can courts; legislative notices of

facts must be deemed to run at least as wide as does

judicial notice.

We therefore assess the reasonableness of the [city’s]

determination [to regulate adult-oriented businesses]

not solely on the basis . . . of what had already

demonstrably occurred within its geographical

borders, but of what it might reasonably foresee in

light of a sufficiently documented wider national

experience properly reflected in matters of public

record. It would defy common sense to suppose that

the [city leaders] are not made aware in this day and

time of comparable conditions in other localities, and

of the varied responses being made by other local

governments to conditions already experienced. We

therefore assume that a proper factor in this local

legislative determination of governmental interests

was what was demonstrably being generally

experienced in comparable localities. .. .

To insist that governmental interests justifying such

legislation could only be found in specific local

experiences and conditions would unrealistically

21

The cases cited by petitioners are distinguishable

from the instant case; and, thus do not support peti-

tioners’ proposition that a conflict exists among the cir-

cuits. The Third, Fifth and Ninth Circuits have issued

decisions, subsequent to Renton and Barnes, which impose

a requirement on governmental entities to produce

empirical evidence to justify a regulation of adult enter-

tainment. The cases do not involve the regulation of

topless dancing in establishments licensed to sell alcohol.

The Ninth Circuit, in Acorn Invs. v. City of Seattle, 887

F.2d 219 (9th Cir. 1989), considered the City of Seattle’s

ordinance requiring “peepshows” to pay various license

fees and to disclose the names and addresses of share-

holders. The Ninth Circuit concluded that the City of

Seattle failed to produce evidence that the “peepshows”

produced adverse secondary effects and thus the city

could not show that the licensing scheme furthered a

substantial government interest. 887 F.2d at 222.

Acorn Invs. is distinguishable from the instant case.

The Seattle ordinance was a licensing scheme, not a regu-

lation of conduct. Further, it is important to note that this

Court upheld the City of Renton, Washington’s adult

theater zoning regulation without particularized findings

in the City of Renton, and recognized Renton’s reliance

on the experiences of Seattle with adverse secondary

require deliberate subjection to those experiences and

conditions before attempting to avoid them.

Wall Distrib., 782 F.2d at 1169-70 n. 7. See also Postscript Enters. v.

City of Bridgeton, 905 F.2d 223 (8th Cir. 1990) (adopting Wall

Distrib.’s reasoning in upholding legislation restricting adult

movie arcades).

22

effects of adult entertainment. Renton, 475 U.S. at 51-52.

Apparently, the Ninth Circuit has required a showing of

adverse secondary effects arising from each particular

segment of the adult entertainment industry prior to

combating those effects, demanding a showing that Seat-

tle “peepshows” have negative effects on a community

which has already found that adult theaters have such

effects. The Ninth Circuit’s ruling is contrary to the

Court’s holdings in Barnes and Renton.

The Third and Fifth Circuits found that, while no

showing need be made concerning pre-enactment evi-

dence of adverse secondary effects arising from adult

entertainment, a city must produce post hoc evidence at

trial to justify its regulation of adult entertainment. Phil-

lips v. Borough of Keyport, 107 F.3d 164, 173-74 (3rd Cir.

1997) (involving an adult entertainment zoning ordi-

nance) and J & B Entertainment, Inc. v. City of Jackson, 152

F.3d 362, 371 (5th Cir. 1998) (not cited by petitioners)

(involving a ban on public nudity as applied to nude

dancers).

The Third and Fifth Circuits are clearly in the minor-

ity, as set forth above. Moreover, and more importantly,

the Third and Fifth Circuits did not consider a regulation

of adult entertainment in a barroom atmosphere.

Consequently, no conflict exists among the circuits on

the prerequisites for a municipality to enact a valid prohi-

bition on topless barroom dancing. As stated above, the

instant case is the first time this issue has been decided

by a Court of Appeals since 44 Liquormart. The decision of

the Eleventh Circuit is consistent with the prior decisions

23

of the Court, and based on that precedent, the petitioners’

First Amendment interests are not violated.

+

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

Respectfully submitted,

Roperick P. Stout

W. Perry HaAtt*

Stout & ROsSsLER

Attorney for Respondent

* Admission Application to

be filed