Cricket Store 17, L.L.C. v. City of Columbia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1065
CRICKET STORE 17, L.L.C., d/b/a Taboo,
Plaintiff - Appellant,
v.
CITY OF COLUMBIA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Chief District
Judge. (3:13-cv-03557-TLW)
Argued: December 6, 2016 Decided: January 25, 2017
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas R. Goldstein, BELK, COBB, INFINGER & GOLDSTEIN, P.A.,
Charleston, South Carolina, for Appellant. Scott Dean
Bergthold, LAW OFFICE OF SCOTT D. BERGTHOLD, P.L.L.C.,
Chattanooga, Tennessee, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case presents a First Amendment challenge to an
ordinance regulating adult businesses in Columbia, South
Carolina. Appellant Cricket Store 17, LLC, conducts business as
Taboo, a retail shop selling sexually oriented merchandise in
the city of Columbia (“City”). Shortly after Taboo opened, the
City enacted an ordinance comprehensively regulating the
operations and locations of adult businesses. Taboo, which no
longer would be able to conduct business at its present
location, filed suit, challenging the ordinance as an
impermissible restriction on free speech.
The district court granted summary judgment to the City,
relying on City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425 (2002) and City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986), two cases in which the Supreme Court upheld
similar ordinances. Under Alameda Books and City of Renton, the
district court concluded, the ordinance is consistent with the
First Amendment, because it is a content-neutral regulation
designed to serve a substantial government interest in
ameliorating the secondary effects of adult businesses and
because it leaves adult businesses with a reasonable opportunity
to operate in alternative locations. We agree with the district
court and affirm its decision.
2
Taboo opened for business on December 5, 2011, and thanks
in part to an amortization period for existing businesses in the
City’s ordinance, has been operating continuously since then.
The store sells various products including clothing, novelties,
DVDs, and magazines, all of which are geared toward an adult
audience. As a retail-only establishment, Taboo provides take-
home merchandise but offers no on-site entertainment, such as
live performances or movies. Located on a major highway, Taboo
is the City’s only sexually oriented business.
Less than a month after Taboo opened, the City, for the
first time in over a decade, undertook a review of its
regulation of adult businesses. On December 22, 2011, the
Columbia City Council held a public meeting, at which a City
consultant made a presentation about the harmful secondary
effects of adult businesses. Those effects included, the City
Council learned, negative impacts on surrounding properties;
increased criminal behavior; lewd conduct and illicit sexual
activity; drug use and trafficking; and litter, noise and other
forms of urban blight. The presentation emphasized that these
negative secondary effects are associated with all types of
adult businesses, including retail-only stores like Taboo.
The presentation also included information about how to
address these secondary effects – and, importantly, how to do so
consistent with the First Amendment. The City Council was
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provided with land studies, crime impact reports, journal
articles and judicial decisions detailing constitutional means
of regulating adult businesses in order to prevent their
documented harmful secondary effects. In total, the legislative
record spanned almost 2,200 pages and included forty-six
judicial decisions, twenty-seven studies on the impact of
sexually-oriented businesses in various cities, and nineteen
summaries of reports concerning negative secondary effects.
A week later, on December 29, 2011, the City enacted
Ordinance Number 2011-105 (the “Ordinance”). According to the
Ordinance, its purpose is to “prevent the deleterious secondary
effects of sexually oriented businesses within the City.” J.A.
25. The Ordinance includes extensive findings, based on the
legislative record, identifying a “wide variety of adverse
secondary effects” of sexually oriented businesses “as a
category,” including but not limited to “personal and property
crimes, prostitution, potential spread of disease, lewdness,
public indecency, obscenity, illicit drug use and drug
trafficking, negative impacts on surrounding properties, urban
blight, litter, and sexual assault and exploitation.” J.A. 26.
Those effects, the Ordinance goes on to find, are minimized if
sexually oriented businesses are separated from sensitive land
uses and also from each other, so as to avoid a concentration of
adult businesses.
4
Accordingly, among the restrictions placed on adult
businesses by the 2011 Ordinance are the locational constraints
directly at issue here: Under § 11-620 of the Ordinance, no
sexually oriented business may operate within 700 feet of a
sensitive use – a religious institution, educational facility,
outdoor recreational space, or residential property – nor within
1000 feet of another sexually oriented business. Any non-
conforming adult business was given a two-year amortization
period within which to recoup its initial investment and then
relocate to a new site. 1
Taboo took advantage of this amortization period and
continued operating for two years, despite the fact that its
location did not meet § 11-620’s requirements. Instead of
relocating at the end of the two-year period, Taboo filed suit
in district court to set aside the Ordinance on First Amendment
free speech grounds. Both parties moved for summary judgment.
In a thorough and careful opinion, the district court
granted summary judgment to the City. See Cricket Store 17, LLC
v. City of Columbia, 97 F. Supp. 3d 737, 742 (D.S.C. 2015). The
1
A second ordinance, adopted by the City in 2012, updated
zoning requirements for sexually oriented businesses to reflect
the locational restrictions of the 2011 Ordinance, and made
minor changes to those locational restrictions not relevant
here. Because the two ordinances set out substantially the same
purpose and findings, relying on substantially the same evidence
of negative secondary effects, we need not differentiate between
them for purposes of our analysis.
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court began by laying out the three-step standard under which
the Supreme Court upheld adult-business ordinances in City of
Renton and Alameda Books: A regulation of sexually oriented
businesses is consistent with the First Amendment if it (a) is a
time, place and manner restriction rather than an outright ban;
(b) is treated as content-neutral because it is aimed at the
secondary effects of adult businesses rather than their message;
and (c) is designed to serve the substantial government interest
in ameliorating secondary effects and does not unreasonably
limit alternative avenues of communication. Cricket, 97 F.
Supp. 3d at 745. The court then meticulously applied that
framework to uphold the City’s Ordinance. See id. at 745–64.
We summarize the district corut’s lengthy and detailed opinion
only briefly here.
The first step of the analysis was straightforward. The
City’s Ordinance does not ban adult businesses outright, the
court reasoned, but instead primarily restricts when and where
they may operate, much like the ordinance approved by the
Supreme Court in City of Renton. Accordingly, the court
concluded, the Ordinance is “properly analyzed as [a] time,
place and manner regulation[],” id. at 745, – a determination
that Taboo does not appear to contest.
Second, the court concluded that because the Ordinance
explicitly targets the secondary effects of adult businesses
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rather than their speech itself, it is properly treated as
“content-neutral” under City of Renton and Alameda Books. Id.
at 746; see City of Renton, 475 U.S. at 929-30 (“[Z]oning
ordinances designed to combat the undesirable secondary effects
of [adult] businesses are to be reviewed under the standards
applicable to ‘content-neutral’ time, place and manner
regulations.”); Alameda Books, 535 U.S. at 434 (plurality
opinion) (same); id. at 448-50 (Kennedy, J., concurring)
(discussing treatment as content-neutral of regulations aimed at
secondary effects).
Taboo argued that the Ordinance should be treated as
content-based, and thus presumptively invalid, because its
timing – coming immediately after Taboo opened for business –
and certain statements by City Council members showed that it
was aimed at Taboo. The district court rejected that argument,
reasoning that even if Taboo’s opening “spurred the City into
action,” that would not demonstrate that the City’s action was
directed at Taboo’s message rather than the secondary effects of
its operations. Cricket, 97 F. Supp. 3d at 746-47. As the
district court noted, id., that conclusion is compelled by our
decision in D.G. Restaurant Corp. v. City of Myrtle Beach, 953
F.2d 140 (4th Cir. 1991), in which we upheld a restriction on
adult businesses despite the fact that it was enacted in direct
response to the planned opening of a topless dancing
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establishment. The mere fact that an adult business has
prompted a regulation, we explained, does not mean that the
regulation is targeted at the “eradication of any erotic
message” the business may convey. Id. at 146.
Next, the district court considered whether the Ordinance
is “designed to serve a substantial governmental interest” as
required by City of Renton, 475 U.S. at 50, and Alameda Books,
535 U.S. at 434 (plurality opinion). As the court recognized,
Cricket, 97 F. Supp. 3d at 751, it is well established that a
municipality has a substantial interest in preventing the
negative secondary effects of adult businesses. And in showing
that an ordinance is “designed to serve” that interest, the
district court explained, a municipality need not meet an
“arduous” standard. Id. at 745, 746. Instead, it may rely on
“whatever evidence” it “reasonably believe[s] to be relevant to
the problem” before it. Id. at 746 (quoting City of Renton, 475
U.S. at 51–52).
As both we and the Supreme Court have emphasized – and as
the district court recognized, Cricket, 97 F. Supp. 3d at 746 –
that generous standard, which reflects the significant deference
owed to a locality’s policy expertise and democratically
accountable judgments, may be satisfied with “very little
evidence.” See Alameda Books, 535 U.S. at 451 (Kennedy, J.,
concurring); Imaginary Images, Inc. v. Evans, 612 F.3d 736, 742,
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749 (4th Cir. 2010) (upholding municipal regulation of sexually
oriented entertainment). In particular, a city need not conduct
its own studies, nor produce evidence independent of that
already generated by other localities defending their own
regulations. City of Renton, 475 U.S. at 51. We have allowed
cities to rely on the experience of other localities, findings
expressed in other court cases, and simple appeals to common
sense. Id.; Imaginary Images, 612 F.3d at 742.
After carefully analyzing the extensive record before it,
the district court concluded that the Ordinance was based on
evidence “reasonably believed to be relevant” to the problem of
secondary effects. Cricket, 97 F. Supp. 3d at 746–51. Under
the precedent discussed above, the court determined, the City
was not required to conduct its own research, but could rely on
the record provided to the City Council, including “dozens of
court opinions and orders, reports from various cities around
the country, and several journal articles.” Id. at 748. And
while it was not necessary that the City’s evidence be specific
to retail-only businesses such as Cricket, the district court
reasoned, the City in fact had relied on evidence about the
secondary effects of retail-only stores in enacting the
Ordinance. Id. at 748–49. Finally, while Taboo’s expert
questioned the validity of the City’s studies and fact-finding,
his report established, “at most, that the City could have
9
reached a different conclusion about the link between sexually
oriented businesses and negative secondary effects,” and not
that the conclusion the City did reach was without evidentiary
support sufficient to meet the standard laid out in City of
Renton and Alameda Books. Id. at 749. “The Court is not
required to re-weigh the evidence considered by the City, and
the Court will not substitute its judgment for that of the
Columbia City Council.” Id. (citing, inter alia, Imaginary
Images, 612 F.3d at 747).
Finally, the district court turned to the last step of the
analysis: whether the City’s Ordinance left available
alternative avenues of communication for adult businesses and,
more specifically, alternative sites on which an adult business
could operate. As the district court recognized, City of Renton
defines an “available” alternative site broadly, to include land
that already is occupied and regardless of the economic
feasibility of relocating or the commercial desirability of a
particular site. Cricket, 97 F. Supp. 3d at 753 (citing City of
Renton, 475 U.S. at 53-54). Against that standard, the court
painstakingly analyzed the forty-six alternative sites
identified by the City and individually addressed Taboo’s
objections to each. Id. at 755-63. The court ultimately found
that all forty-six sites were available for use by an adult
business – and that “even if the Court’s conclusion that exactly
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forty-six sites are available is incorrect, there is no question
that numerous sites are available.” Id. at 764. Accordingly,
the court determined that the Ordinance does not unreasonably
limit alternative avenues of communication by adult businesses.
Id. And because the City had satisfied the last of the
conditions of constitutionality established by City of Renton
and Alameda Books, the court held that the Ordinance does not
violate the First Amendment. Id. 2
Taboo timely appealed, raising substantially the same
arguments it advanced in the district court. Having carefully
considered the controlling law and the parties’ briefs and oral
arguments, we affirm on the reasoning of the opinion of the
district court.
AFFIRMED
2The district court also held that the Ordinance does not
constitute an unconstitutional prior restraint on speech.
Cricket, 97 F. Supp. 3d at 764-65. In addition, it denied
various discovery motions filed by Taboo. Id. at 766–67.
Lastly, the court at other points of the proceedings denied
Taboo leave to amend its complaint, and denied a motion by Taboo
to vacate its judgment based on a subsequent amendment to the
City’s Ordinance. We find no error in the district court’s
rulings on these points.
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