Artistic Entertainment v. City of Warner Robins , 223 F.3d 1306 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 23, 2000
No. 00-10173
THOMAS K. KAHN
Non-Argument Calendar CLERK
_______________________
D. C. Docket No. 97-00195-CV-3-HL-5
ARTISTIC ENTERTAINMENT, INC.,
a Georgia Corporation d.b.a. Teasers,
STEPHEN R. DEWBERRY,
Plaintiffs-Appellants,
versus
CITY OF WARNER ROBINS,
DONALD WALKER, Individually and in his
capacity as Mayor of the City of Warner Robins, et al.,
Defendants-Appellees.
_______________________
Appeal from the United States District Court
for the Middle District of Georgia
_______________________
(August 23, 2000)
Before BIRCH, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
I. BACKGROUND AND PROCEDURAL HISTORY
In 1997, the City of Warner Robins enacted an ordinance regulating and
requiring licenses for adult businesses (“the adult business ordinance”).1 Among
other things, the ordinance established a licensing procedure for adult business and
prohibited the sale and consumption of alcohol on the premises. The city amended
its alcoholic beverage ordinance at the same time, bolstering the adult business
ordinance by preventing adult businesses from obtaining liquor licenses.2 The City
Council approved these measures after an evidentiary hearing, and council
members had an opportunity to review studies of the secondary effects of adult
businesses in other cities as well as transcripts of testimony from numerous
Georgia officials.
Artistic Entertainment, Inc., and Stephen Dewberry brought suit in state
court against the City of Warner Robins and numerous officials in which they
challenged the ordinances’ constitutionality. Artistic Entertainment, Inc., is an
establishment known as “Teasers” that features nude dancing; Stephen Dewberry
holds the liquor license for Teasers. Defendants removed the case to case to
federal court, which enjoined the implementation of the adult business measures.
1
See Ordinance Regulating Adult Businesses (Mar. 3, 1997), in R1, Tab 1, Ex. A.
2
See An Ordinance to Amend the Warner Robins Alcoholic Beverage Ordinance (Mar. 3,
1997), in R1, Tab 10, Ex. C.
2
Defendants appealed, and this court vacated the district court order, holding that it
did not give adequate weight to the evidentiary basis offered by Warner Robins in
support of its ordinances. The district court granted Defendants’ motion for
summary judgment and denied Plaintiffs’ motion for reconsideration. Plaintiffs
now appeal.
II. DISCUSSION
Plaintiffs raise a number of First Amendment challenges to the Warner
Robins ordinances on appeal. First, Plaintiffs argue the ordinances are content-
based restrictions and should be subject to strict scrutiny rather than the
intermediate standard of review applicable to content-neutral time, place, and
manner restrictions. Second, Plaintiffs object to the district court’s application of
the test established in United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673(1968). We will consider these first two arguments together. Third, Plaintiffs
contend that the adult business ordinance is unconstitutionally vague. Finally,
Plaintiffs claim that the adult business ordinance’s licensing provisions are an
unconstitutional prior restraint on expression.
A. Establishing and Applying the Proper Standard of Review
3
Regulations that restrict protected expression based on its content are subject
to strict scrutiny. See City of Erie v. Pap’s A.M., – U.S. –, –, 120 S. Ct. 1382,
1389 (2000) (plurality). On the other hand, regulations that target undesirable
secondary effects of protected expression are deemed content-neutral, and courts
review them with an intermediate level of scrutiny known as the O’Brien test. See
id. Courts have long applied the O’Brien test to the regulation of adult
entertainment. See, e.g., Renton v. Playtime Theatres, Inc, 475 U.S. 41, 47-49, 106
S. Ct. 925, 929-30 (1986); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d
993, 996 (11th Cir. 1998). This circuit specifically has held that a prohibition on
the sale of alcohol at adult entertainment venues, much like the ordinances at issue
in this case, was content-neutral and subject to the O’Brien test. See Sammy’s, 140
F.3d at 996.
Plaintiffs’ attempts to evade the holding of Sammy’s are unavailing. First,
plaintiffs quote the deposition of one Warner Robins councilperson who
disavowed any concern with crime associated with Teasers and acknowledged that
he did not peruse any of the written materials given to the Council.3 Courts are
hesitant to inquire into legislators’ motives, however, and we will “not strike down
an otherwise constitutional statute on the basis of an alleged legislative illicit
3
See Cambell Dep. at 4-5, in R1, Tab 31.
4
motive.” O’Brien, 391 U.S. at 383, 88 S. Ct. at 1682.
Plaintiffs also claim that the adult business ordinance’s definition of “adult
business” impermissibly “turns on the characterization and the purpose of the
message,” Appellants’ Br. at 15, because it exempts mainstream theaters where
nudity and sexual expression are generally incidental to the purpose of
performances.4 The ordinance itself, however, states that its purpose is to reduce
criminal activity and other “undesirable community conditions” associated with the
combination of adult entertainment and drinking.5 Limiting the ordinance’s reach
to those venues reasonably perceived to pose a risk of creating such side effects
does not turn the ordinance into a content-based restriction.
Next, Plaintiffs argue that Warner Robins did not have sufficient evidentiary
support for its conclusion that banning the sale and consumption of alcohol at adult
businesses would actually curb crime or reduce the other “secondary effects”
targeted by the ordinances. According to Plaintiffs, city council members had no
personal experience or knowledge of crime patterns around Teasers, and the
studies considered by the Council were conducted out-of-state and failed to find an
explicit correlation between alcohol consumption, adult entertainment, and crime.
4
See Ordinance Regulating Adult Businesses § 1.010(a)(4)(b)(1), in R1, Tab 1, Ex. A.
5
See id. § 1.005.
5
The government need only have a “reasonable basis,” however, for believing that
its policy will indeed further a legitimate interest. See Sammy’s, 140 F.3d at 997.
The Sammy’s court concluded that “the experience of other cities, studies done in
other cities, caselaw reciting findings on the issue, as well as [the officials’] own
wisdom and common sense” were sufficient. Id. Given the wealth of documentary
evidence and testimony presented to it, we conclude that the Warner Robins City
Council had an adequate basis for concluding that proscribing the sale and
consumption of alcohol would reduce the crime and other social costs associated
with adult businesses. See Renton, 475 U.S. at 51-52, 106 S. Ct. at 931.
B. Vagueness
Plaintiffs contend that the adult business ordinance’s exemption for
mainstream or traditional theaters renders its scope unconstitutionally vague. The
pertinent provisions of the ordinance are:
The definition of “adult entertainment business” shall not include
traditional or mainstream theater which means a theater, movie theater,
concert hall, museum, educational institution or similar establishment
which regularly features live or other performances or showings which
are not distinguished or characterized by an emphasis on the depiction,
display, or description or the featuring of specified anatomical areas or
specified sexual activities in that the depiction, display, description or
featuring is incidental to the primary purpose of any performance.
Performances and showings are regularly featured when they comprise
6
80% of all performances or showings.6
Plaintiffs fail to mention that the ordinance goes on to define a number of types of
adult venues, such as “adult theater” and “adult entertainment cabaret” that are
specifically included in the definition of adult businesses requiring a license to
operate.7
Plaintiffs complain that the ordinance does not define “performances and
showings,” but they ask for a precision of vocabulary that is both impossible and
unnecessary. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294,
2300 (1972). It is clear what sort of venue the “mainstream theater” exemption
would exclude from the ordinance’s licensing requirements, and if a business
owner is unsure, he may check the ordinance’s description of specific, covered
venues to determine if the ordinance applies.
Plaintiffs also complain that the ordinance’s percentile standard, under
which businesses must obtain a license if more than twenty percent of their
performances feature specified sexual content that is more than incidentally related
to their purpose, does not state how many performances or what time period will
be factored into the equation. In fact, the “mainstream theater” exemption limits
6
Ordinance Regulating Adult Businesses § 1.010(a)(4)(b)(1), in R1, Tab 1, Ex. A.
7
See id. § 1.010(a)(4)(b)(2).
7
the opportunity for arbitrary and discriminatory enforcement of the adult business
ordinance by establishing an objective standard. See Grayned, 408 U.S. at 113, 82
S. Ct. at 2302 (noting that it previously had found an ordinance overly vague in
large part because enforcement was based on subjective criteria). The ordinance
leaves the City some flexibility in measuring whether a venue falls under the
“mainstream theater” exemption, but we are satisfied that the exemption’s “80/20"
standard provides adequate notice to business operators and an adequate restraint
on arbitrary enforcement. See Mason v. Florida Bar, 208 F.3d 952, 959 (11th Cir.
2000).
Moreover, to the extent that the exemption for mainstream businesses is
“intended to carve out non-obscene and therefore protected displays of nudity in
artistically valuable . . . performances[, it] cannot be condemned for facial
vagueness.” Café 207, Inc. v. St. Johns County, 856 F. Supp. 641, 650 (M.D. Fla.
1994), aff’d, 66 F.3d 272 (11th Cir. 1995). “[B]ecause it is impractical if not
impossible to precisely describe in words all of the types of nude performances
falling within the protection of the First Amendment,” id. at 649, we cannot expect
such attempts to be especially eloquent.
C. Prior Restraint
8
Plaintiffs’ final argument is that the adult business ordinance’s licensing
regime operates as an unconstitutional prior restraint on expression because it does
not provide an adequate time limit on the City’s review of license applications.
See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-30, 110 S. Ct. 596, 604-07
(1990) (discussing application of the prior restraint doctrine to nude dancing). The
adult business ordinance requires the City Council to approve or deny a license
application within forty-five days,8 a time-frame this court held was reasonable in
Redner v. Dean, 29 F.3d 1495, 1500 (11th Cir. 1994). The ordinance also dictates
that the City Council “shall” approve an application if it complies with the
ordinance.
The problem, Plaintiffs argue, arises if the City, because of bad faith or
innocent bureaucratic delays, fails to act on an application before the deadline. In
Redner, this court held that a mandatory time limit was “illusory, in that the
Administrator’s failure to comply with the time limit does not necessarily allow the
applicant to begin engaging in the expressive activity for which the license is
sought.” 29 F.3d at 1500. The ordinance at issue in Redner did state that “the
applicant may be permitted to begin operating . . . unless and until the County
Administrator notifies the applicant of a denial of the application,” id. at 1500-01,
8
See Ordinance Regulating Adult Businesses § 1.060(a), in R1, Tab 1, Ex. A
9
but the court found that provision insufficient (and the ordinance unconstitutional)
because it used the precatory word “may” rather than the mandatory word “shall.”
See id. at 1501. Without such a guaranty, this court held that the ordinance “risks
the suppression of protected expression for an indefinite time period prior to any
action on the part of the decisionmaker or any judicial determination.” Id.
Warner Robins’s ordinance does not include even the language deemed
inadequate in Redner. The adult business ordinance is silent on an applicant’s right
to begin operating his business if the city fails to act on his application. In light of
Redner’s holding, which clearly controls here, we can only conclude that the
Warner Robins adult business ordinance is facially violative of the First
Amendment; although it imposes a deadline on the City to consider an adult
business license application, it does not guaranty the adult business owner the right
to begin expressive activities within a brief, fixed time frame.
III. CONCLUSION
We AFFIRM the district court’s application of the O’Brien intermediate
scrutiny standard to the challenged ordinances, as well as the district court’s
holding that the adult business ordinance was not unconstitutionally vague. In
10
light of our holding in Redner, however, we REVERSE the district court’s holding
that the adult business ordinance did not impose an unconstitutional prior restraint.
11