Filed: Jul. 13, 2000
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JULY 13 2000 THOMAS K. KAHN No. 99-11283 CLERK _ D. C. Docket No. 98-00428-CIV-ORL-19 WILLIAM G. WARD, d.b.a. Bourbon Street South, Plaintiff-Appellant, versus COUNTY OF ORANGE, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (July 13, 2000) Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges. BLACK, Circuit Judg
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT JULY 13 2000 THOMAS K. KAHN No. 99-11283 CLERK _ D. C. Docket No. 98-00428-CIV-ORL-19 WILLIAM G. WARD, d.b.a. Bourbon Street South, Plaintiff-Appellant, versus COUNTY OF ORANGE, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (July 13, 2000) Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges. BLACK, Circuit Judge..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 13 2000
THOMAS K. KAHN
No. 99-11283 CLERK
________________________
D. C. Docket No. 98-00428-CIV-ORL-19
WILLIAM G. WARD,
d.b.a. Bourbon Street South,
Plaintiff-Appellant,
versus
COUNTY OF ORANGE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 13, 2000)
Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
Appellant William G. Ward appeals the district court’s grant of summary
judgment on Appellant’s constitutional challenges. On appeal, Appellant claims the
district court erred in finding in favor of Appellee County of Orange on its facial
challenges and erred in dismissing its as-applied challenges. We conclude the district
was correct in granting summary judgment with respect to the facial challenges but
remand with instructions the as-applied challenges.
I. BACKGROUND
Appellant William G. Ward is the owner of a “swimsuit club” operating under
the name Bourbon Street South (BSS). At BSS, customers can purchase “Sweetheart
Party Packages,” ranging in price from $20 to $200. These packages give customers
access to, among other things, nonalcoholic beverages and slow dances with BSS
performers. While Appellant claims BSS is no different than other dance studios,
Appellee presented extensive evidence showing that BSS differed significantly from
traditional dance studios.
For example, one affidavit explained that BSS performers “simulated or
actually engaged in masturbation of themselves or displayed their buttocks, genitals,
or breasts.” The affidavit further noted BSS performers “would rub their bodies
against their male customers, press their genitals against those of the customers . . .
allow the customers to fondle their buttocks and exposed back . . . and often times
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would place their hands underneath the customers’ shirt or fondle the customer’s
buttocks.” Further evidence showed BSS performers often revealed their body parts
to customers.
As a result of such conduct, several performers and a manager at BSS, but not
Appellant, were arrested for violations of Orange County’s Adult Entertainment Code
(the code).2 The code reads, in pertinent part, as follows:
Adult performance establishment shall mean as follows:
(1) An establishment where any worker:
a. Engages in a private performance, acts as a private model, or
displays or exposes any specified anatomical areas to a customer;
b. Wears and displays to a customer any covering, tape, pastie, or
other device which simulates or otherwise gives the appearance of the
display or exposure of any specified anatomical areas;
c. Offers, solicits or contracts to dance or perform with a customer
in consideration for or accepts any tip, remuneration or compensation
from or on behalf of that customer; or
d. Dances or performs with or within three (3) feet of a customer
in consideration for or accepts any tip, remuneration, compensation from
or on behalf of that customer.
Orange County Adult Entertainment Code, § 3-6. Operations deemed to be adult
performance establishments, as defined in the code, must obtain an adult
2
The performers and manager were arrested for, among other things, operating without an
adult entertainment license.
3
entertainment license and must conform to the zoning requirements contained in
sections 3-76 through 3-78 of the code.
Appellant has never applied for an Orange County adult entertainment license.
Furthermore, Appellee has never cited Appellant or BSS for a violation of the code
and has never held a code enforcement proceeding against Appellant or BSS. Finally,
Appellee has never filed a lawsuit seeking to enjoin actions by Appellant or BSS in
violation of the code.
Appellant brought suit against Appellee claiming the code is unconstitutional
on its face and as-applied. Among other things, Appellant claimed the code was
overbroad, content-based, vague, unrelated to a legitimate state interest, and
unconstitutionally shifted the burden of proof. Appellant also argued the code was
unconstitutionally applied to BSS. The district court granted summary judgment for
Appellee on the facial challenges and determined Appellant’s as-applied challenges
were not ripe. We affirm the district court with respect to the facial challenges but
remand with instructions the as-applied challenges.
II. ANALYSIS
We review de novo the district court’s entry of summary judgment. See AT&T
Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1324 (11th Cir. 2000). In
assessing a motion for summary judgment, “we must examine the evidence in the light
4
most favorable to the non-moving party.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365
(11th Cir. 2000). Summary judgment is appropriate if there are no genuine issues of
material fact. See
id.
A. Facial Challenges
1. City of Renton Test
We review Appellee’s zoning ordinance in this case under the “time, place, or
manner” standard set forth by the Supreme Court in City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41,
106 S. Ct. 925 (1986). See Lady J. Lingerie, Inc. v. City
of Jacksonville,
176 F.3d 1358, 1361 (11th Cir. 1999), cert. denied,
120 S. Ct. 1554
(2000). Under this standard, a “zoning ordinance is valid if it is narrowly tailored to
serve a substantial government interest, and it allows for reasonable alternative
avenues of expression.”
Id.
Appellant’s main contention is that the zoning ordinance does not serve a
substantial governmental interest. Appellant argues the zoning ordinance regulates
pure speech and other expressive forms of conduct and therefore violates the First
Amendment. We disagree.
The Supreme Court consistently has held that combating the harmful secondary
effects of adult businesses, such as increased “crime and other public health and safety
problems,” is a substantial interest. City of Erie v. Pap's A.M., 120 S. Ct. 1382, 1397
5
(2000); see City of Renton, 475 U.S. at 50, 106 S. Ct. at 930 (stating that “a city’s
interest in attempting to preserve the quality of urban life is one that must be accorded
high respect”) (internal quotation omitted). Significantly, the Court stated that
although the “regulation may have some incidental effect on the expressive element
of the conduct. . . [t]he State's interest in preventing harmful secondary effects is not
related to the suppression of expression.”
Pap’s, 120 S. Ct. at 1393. The Court added
that it “will not strike down an otherwise constitutional statute on the basis of an
alleged illicit motive.”
Id. at 1392-93. Finally, we have noted “it is not difficult to
draft an ordinance that addresses the harmful secondary effects of adult businesses
without running afoul of the First Amendment.” Lady J.
Lingerie, 176 F.3d at 1363.
In this case, the zoning ordinance was intended, at least in part, to combat the
negative secondary effects of adult establishments. Appellee relied on numerous
studies and hearings to show that the presence of adult entertainment establishments
is associated with negative secondary effects. Although several of these studies were
conducted by different cities, the Supreme Court has made it clear that “the city need
not conduct new studies or produce evidence independent of that already generated
by other cities to demonstrate the problem of secondary effects, so long as whatever
evidence the city relies upon is reasonably believed to be relevant to the problem that
6
the city addresses.” Pap’s, 120 S. Ct. at 1395 (internal quotations omitted).
Furthermore, Appellee conducted at least one public hearing that specifically
examined the secondary effects of Appellant's establishment. Therefore, even
assuming, as Appellant alleges, this ordinance incidentally reaches some forms of
protected expression, the ordinance is a valid time, place, or manner regulation under
City of Renton because it is aimed at combating the harmful secondary effects
associated with adult entertainment establishments.3
2. Burden-Shifting
Appellant also contends the ordinance unconstitutionally places on the applicant
the burden of proving that the “predominant business or attraction of the
establishment” is not “intended to provide sexual stimulation or sexual gratification.”4
3
Appellant does not dispute that the ordinance is narrowly tailored and leaves open
reasonable alternative avenues of expression.
4
Section 3-6(2) of the code provides as follows:
This definition is not intended to apply, and it is an affirmative
defense to an alleged violation of this chapter regarding operating an
adult performance establishment without a license, if the alleged
violator demonstrates either (a) that the establishment is a bona fide
private club whose membership as a whole engages social nudism or
naturalism as in a nudist resort or camp, or (b) that the predominant
business or attraction of the establishment is not the offering to
customers of a product, service, or entertainment which is intended
to provide sexual stimulation or sexual gratification to such
customers, and the establishment and its advertising is not
distinguished by an emphasis on, or the promotion of, matters or
persons depicting, describing, displaying, exposing, stimulating or
relating to specified sexual activities or specified anatomical areas.
“Sexual stimulation” is defined as
7
The starting point for the burden-shifting analysis is the Supreme Court’s
decision in Freedman v. Maryland, 380 U.S. 51,
85 S. Ct. 734 (1965). In Freedman,
the Court discussed the procedural safeguards required for the administration of a
motion picture censorship system. See
Freedman, 380 U.S. at 56-61, 85 S. Ct. at 737-
40. The Court noted censorship is “always fraught with danger and viewed with
suspicion,” and therefore mandated the following safeguards: (1) the burden of
proving the film is unprotected by the First Amendment must be placed on the censor;
(2) any restraint prior to judicial review may only be imposed for a specified brief
period of time during which the status quo must be maintained; and (3) the final
judicial decision must be prompt.
Id. at 57-59, 85 S. Ct. at 738-39.
Subsequently, in FW/PBS, Inc. v. Dallas, 493 U.S. 215,
110 S. Ct. 596 (1990),
the Supreme Court addressed whether a licensing scheme regulating adult
entertainment establishments must contain the same procedural safeguards. In a
either to excite or arouse the prurient interest or to offer, propose,
solicit, or suggest to provide an act of sexual gratification to a
customer, including but not limited to all conversations, statements,
advertisements and acts which would lead a reasonable person to
conclude that an act of sexual gratification was to be provided.
“Sexual gratification” is defined as
the engaging in or committing of an act of sexual intercourse, oral-
genital contact, masturbation, or the touching of the covered or
uncovered sexual organ, pubic region, buttock, breast, chest or inner
thigh of a person, any of which is for the purpose of arousing or
gratifying the sexual desire of another person.
8
plurality opinion, Justice O’Connor noted “[t]he core policy underlying Freedman is
that the license for a First Amendment-protected business must be issued within a
reasonable period of time, because undue delay results in the unconstitutional
suppression of protected speech.” FW/PBS, 493 U.S. at 228, S. Ct. at 606. As such,
the plurality concluded a licensing scheme must provide the second and third
safeguards required by Freedman. See
id.
In discussing the first safeguard, however, the plurality emphasized the
differences between a censorship scheme and a licensing scheme. Specifically, the
plurality noted a censorship scheme is presumptively invalid because it is a direct
suppression of expressive material. See id at 229, S. Ct. at 607. In contrast, under a
licensing scheme, a “city does not exercise discretion by passing judgment on the
content of any protected speech. Rather, the city reviews the general qualifications
of each license applicant, a ministerial action that is not presumptively invalid.”
Id.
Furthermore, the plurality reasoned that license applicants have much more at
stake than motion picture distributors: “[b]ecause the license is the key to the
applicant’s obtaining and maintaining a business, there is every incentive for the
applicant to pursue a license denial through court.”
Id. at 229-30, 110 S. Ct. at 607.
Motion picture distributors, however, are more likely to be deterred from challenging
a censorship decision and thus a “censor’s decision to suppress [speech] was
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tantamount to complete suppression of the speech.” Id. at 229, 100 S. Ct. at 607.
Because of these distinctions, the FW/PBS plurality concluded that the first procedural
safeguard from Freedman did not apply in the licensing context. See
id. Thus, a city
may require the license applicant to bear the burden of proving that it is engaging in
protected activity.
While a majority of the Supreme Court has failed to join Justice O’Connor in
recognizing these distinctions, we have explicitly noted the significant differences
between censorship schemes and licensing schemes. See Boss Capital, Inc. v.
Casselberry, 187 F.3d 1251 (11th Cir. 1999), cert. denied,
120 S. Ct. 1423 (2000).
In Boss Capital, this Court addressed the related issue of whether Freedman and
FW/PBS require a guarantee of a prompt judicial resolution of license denials or
merely a guarantee of a prompt judicial review.5 See
id. at 1255. While recognizing
that Freedman “unmistakably requires a prompt final judicial decision” in a
censorship scheme, this Court emphasized that licensing decisions are inherently
different from censorship decisions.
Id. at 1256 (internal quotation omitted). We
therefore concluded licensing schemes need only provide prompt judicial review of
licensing denials. See
id. at 1256-57.
5
This question, which has divided the Circuits, arises from Justice O’Connor’s statement that
“there must be the possibility of prompt judicial review in the event that [a] license is erroneously
denied.” FW/PBS, 493 U.S. at 228, 110 S. Ct. at 606. As noted above, in Freedman, the Supreme
Court had required a “prompt final judicial decision.”
Freedman, 380 U.S. at 59, 85 S. Ct. at 739.
10
Once again, it is important to stress the differences between censorship schemes
and licensing schemes-- “[t]he dangers of censorship are less threatening when it
comes to licensing schemes.” Id. at 1256. And, again, “[w]e believe this is a
situation for ‘treating unlike things differently according to their differences.’”
Id.
(quoting Lyes v. City of Riviera Beach,
166 F.3d 1332, 1342 (11th Cir. 1999) (en
banc)). Accordingly, we conclude a city may place the burden of proving that the
“predominant business or attraction of the establishment” is not “intended to provide
sexual stimulation or sexual gratification ” on the applicant. See Steakhouse, Inc. v.
City of Raleigh,
166 F.3d 634, 640-41 (4th Cir. 1999) (holding a city may place the
burden of “proving no adverse secondary effects on the applicant”); Florida Video
Xpress, Inc. v. Orange County,
983 F. Supp. 1091, 1098 (M.D. Fla. 1997)
(concluding an adult entertainment code may shift the burden to a business to prove
that it is not an adult entertainment establishment).
3. Overbreadth
An ordinance is unconstitutionally overbroad “when lawmakers define the
scope of a statute to reach both unprotected expression as well as, at least potentially,
protected speech.” American Booksellers v. Webb, 919 F.2d 1493, 1502 (11th Cir.
1990). We will consider an ordinance to be facially invalid under the First
Amendment
11
only if it is “substantially overbroad, that is, its application would be unconstitutional
in a substantial proportion of cases.” Agan v. Vaughn, 119 F.3d 1538, 1542 (11th Cir.
1997).
Appellant has failed to show the application of the ordinance would be
unconstitutional in a substantial proportion of cases. Therefore, the district court was
correct in granting summary judgment for Appellee on this claim.6
B. As-Applied Challenges
Appellant contends the district court erred in concluding its as-applied
challenges were not ripe. In order for an as-applied challenge against a county to be
ripe, a county official “with sufficient authority must have rendered a decision
regarding” the party’s proposal. Digital Properties, Inc. v. City of Plantation, 121
F.3d 586, 590 (11th Cir. 1997). Furthermore, “[w]ithout the presentation of a binding
conclusive administrative decision, no tangible controversy exists and, thus, we have
no authority to act.”
Id. We simply have “neither the power nor the inclination” to
resolve a potential dispute founded only on a party’s belief that a county would
6
Appellant also argues the terms “sexual gratification” and “sexual stimulation,” as used in
the ordinance, are unconstitutionally vague. We, however, have already held that a similar term is
not unconstitutionally vague. See Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980). This
case is binding on this Court pursuant to Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), in which this Court adopted as binding precedent all decisions of the former
Fifth Circuit handed down prior to close of business on September 30, 1981. The district court
therefore did not err in granting summary judgment on this claim.
12
interpret an ordinance in such a way as to violate the party’s First Amendment rights.
Id. at 591. However, a party need not seek a binding conclusive administrative
decision where such an effort would be futile. See Eide v. Sarasota County,
908 F.2d
716, 726 (11th Cir. 1990).
Thus, in the typical case, Appellant’s as-applied challenge would be ripe only
if Appellant had applied for a license or if Appellant demonstrated an application
would have been futile. At first glance, it therefore appears Appellant has not
presented this Court with a ripe controversy, as it has failed to apply for a license and
has failed show it would have been futile to do so. This, however, is not the typical
case. In this case, Appellant is not seeking a license. Rather, Appellant contends it
is not an adult entertainment establishment as defined in the code. Appellant therefore
asserts it is not required to apply for a license.
In their briefs, the parties did not address whether, before bringing the as-
applied challenges, Appellant applied to the zoning board to determine whether it
needed a license to operate BSS. The panel, and we presume the district court,
assumed this procedure was available to Appellant. However, when asked at oral
argument, counsel for Appellee, perhaps unprepared to answer the question, did not
affirmatively state that such a mechanism existed and seemed to suggest the only way
for Appellant to ripen this case was to apply for a license. As it is obviously illogical
13
to force Appellant to apply for a license it repeatedly argues it does not need, the
ripeness of the as-applied claim depends on whether Appellant could have obtained
from the zoning board a determination whether BSS needed a license. If a procedure
exists, the as-applied challenges are not ripe, as Appellant has failed to show that a
county official with sufficient authority rendered a decision regarding BSS. If,
however, a procedure does not exist, we conclude Appellant’s as-applied challenges
are ripe and would need to be considered by the district court. We therefore remand
the as-applied challenges to the district court to determine whether Appellant could
have sought a ruling from the zoning board as to whether Appellant was required to
obtain a license for BSS.
III. CONCLUSION
We affirm the district court’s grant of summary judgment on Appellant’s facial
constitutional challenges but remand with instructions the as-applied challenges.
AFFIRMED IN PART and REMANDED IN PART.
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