Steakhouse Inc v. City of Raleigh NC

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEAKHOUSE, INCORPORATED, a 
Florida corporation; INVESTMENT
PARTNERS, INCORPORATED, a Florida
corporation,
Plaintiffs-Appellants,
v.  No. 99-1542
THE CITY OF RALEIGH, NORTH
CAROLINA, a North Carolina
municipal corporation; RALEIGH
BOARD OF ADJUSTMENT,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-97-177-5-B0)
Argued: June 5, 2000
Decided: February 5, 2001
Before WILKINSON, Chief Judge, and MICHAEL and MOTZ,
Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David Alan Wasserman, WASSERMAN & WALTERS,
Winter Park, Florida, for Appellants. Dorothy K. Woodward, Asso-
2 STEAKHOUSE, INC. v. THE CITY OF RALEIGH
ciate City Attorney, CITY ATTORNEY’S OFFICE OF THE CITY
OF RALEIGH, Raleigh, North Carolina, for Appellee City; John M.
Silverstein, SATISKY & SILVERSTEIN, Raleigh, North Carolina,
for Appellee Board of Adjustment. ON BRIEF: Thomas A. McCor-
mick, Jr., City Attorney, CITY ATTORNEY’S OFFICE OF THE
CITY OF RALEIGH, Raleigh, North Carolina, for Appellee City.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Steakhouse and Investment Partners challenge the con-
stitutionality of the City of Raleigh’s special use permit procedure for
adult establishments. This appeal is part of Steakhouse’s continuing
effort to erect a topless dancing bar in Raleigh. In 1999, after an
exhaustive review of the parties’ arguments and submissions, we held
that appellants had demonstrated little likelihood of prevailing on the
merits of their challenge. See Steakhouse, Inc. v. City of Raleigh, 166
F.3d 634 (4th Cir. 1999). Appellants have put forth nothing more that
persuades us that their claims have any merit. We therefore affirm the
judgment of the district court for the reasons stated in our earlier deci-
sion.
I.
The relevant facts of this case are set forth in our earlier opinion
affirming the district court’s denial of a preliminary injunction. See
Steakhouse, 166 F.3d 634. At that stage of the case, we found, inter
alia, that the city has a legitimate interest in combating the secondary
effects of topless barroom dancing, see id. at 636-38, that Raleigh’s
special use permit scheme sufficiently cabins the Board of Adjust-
ment’s discretion, see id. at 638-40, and that the city has provided
adequate procedural safeguards for the consideration of a permit
STEAKHOUSE, INC. v. THE CITY OF RALEIGH 3
application, see id. at 640-41, including prompt judicial review on the
merits, see id. at 641-42.
In January 1998, while the earlier appeal was pending, the city
moved for summary judgment. In March 1999, after the motion had
been briefed and the district court had the benefit of our prior opinion,
the city’s motion was granted and the case was dismissed. The district
court observed that it "need not address this question in detail,
because the Fourth Circuit already has." Appellants now ask us to
reverse the district court.
Appellants, however, raise no new fact or point of law that would
lead us to alter our earlier conclusions. Rather, appellants essentially
assert that our earlier decision was incorrect. We respectfully dis-
agree. Our prior opinion has addressed appellants’ arguments and
found them to be without merit. For the same reasons, we reject these
arguments today.
Indeed, the Supreme Court’s recent decision in City of Erie v.
Pap’s A.M., 529 U.S. 277 (2000), reinforces our earlier conclusions.
In that case, the Court entertained a challenge by the operator of a
nude dancing establishment to the constitutionality of a city ordinance
banning public nudity. The Court rejected this challenge, with four
Justices concluding that the ordinance was a valid content-neutral reg-
ulation and two Justices voting to dismiss the case as moot but stating
that they would otherwise reject the challenge on the merits. See City
of Erie, 529 U.S. at 289-302 (plurality opinion of O’Connor, J.); id.
at 302-10 (Scalia, J., concurring in the judgment). The plurality rested
its opinion primarily on the city’s legitimate interest in combating the
well-recognized secondary effects associated with adult entertainment
establishments. See City of Erie, 529 U.S. at 289-302; see also City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); City of Erie,
529 U.S. at 310 (Souter, J., concurring in part and dissenting in part).
We likewise recognize Raleigh’s significant interest in curtailing the
various harmful phenomena that topless bars often produce and hold
that the city has vindicated this interest in a manner consistent with
the Constitution.
We need not address the question of whether our prior opinion con-
stitutes the law of the case in any formal sense. Rather, we simply
adhere to our prior conclusions and find no reason to revisit them.
4 STEAKHOUSE, INC. v. THE CITY OF RALEIGH
II.
The judgment of the district court is accordingly
AFFIRMED.