238 F.3d 1273 (11th Cir. 2001), 98-6857, Ranch House Inc. v Amerson

Docket Nº:98-6857.
Citation:238 F.3d 1273
Party Name:RANCH HOUSE, INC., etc., Plaintiff-Appellant, v. Larry AMERSON, Sheriff of Calhoun County, and the Calhoun County Commission, etc., Defendants-Appellees.
Case Date:January 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1273

238 F.3d 1273 (11th Cir. 2001)

RANCH HOUSE, INC., etc., Plaintiff-Appellant,

v.

Larry AMERSON, Sheriff of Calhoun County, and the Calhoun County Commission, etc., Defendants-Appellees.

No. 98-6857.

United States Court of Appeals, Eleventh Circuit

January 17, 2001

Januray 31, 2001.

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Appeal from the United States District Court for the Northern District of Alabama.(No. 98-01638-CV-TMP-E), Robert B. Propst, Judge.

Before ANDERSON, Chief Judge, and MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

Plaintiff Ranch House, Inc. ("Ranch House") appeals the district court's order dismissing its complaint and finding after a bench trial that two recent Alabama statutes regulating nude entertainment pass First Amendment muster. One statute, Alabama Code § 13A-12-200.11, broadly prohibits any business from allowing nudity to be shown for entertainment purposes; the other statute, Alabama Code § 13A-12- 200.5(4), prohibits operation of an adult-oriented business within 1,000 feet of various buildings such as churches or schools. Ranch House contends that these statutes proscribe too much protected expression, and that the Defendants should be prohibited from enforcing them. Although we agree that on this record there may be real questions about the constitutionality of these statutes, we conclude that the wisest course is to remand this case to permit further argument and development of the record on several critical issues, including Defendants' claim that § 200.11 is intended to combat the "secondary effects" of nude entertainment. We therefore vacate the district court's orders and remand for further proceedings consistent with this opinion. We also continue this Court's existing injunction prohibiting enforcement of §§ 200.11 and 200.5(4) with respect to Ranch House's existing businesses.

I.

The parties stipulated to the following facts before the district court. See Ranch House v. Amerson, 22 F.Supp.2d 1296, 1297 (N.D.Ala.1998). Ranch House is an Alabama corporation doing business as the Platinum Club ("Club") and the Platinum Sports Bar ("Bar"). The Club offers topless and nude female dancing, and is not licensed to sell or provide alcohol in connection with the dancing. The Bar is adjacent to the Club and is licensed to sell beer and wine. At no time have Ranch House or its employees been arrested or prosecuted for obscenity. Both businesses are

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located in an unincorporated area of Calhoun County, Alabama. The Defendants, the Calhoun County Commission and Larry Amerson, Sheriff of Calhoun County, will attempt to enforce the statutes at issue with respect to Ranch House's businesses if those provisions are upheld in this case.

The two statutes at issue are recent amendments to the Alabama Anti-Obscenity Enforcement Act, Ala.Code § 13A-12-200.1, et seq. (the "Act"). Both provisions took effect, along with other amendments, on July 1, 1998. See 1998 Ala. Acts 98- 467 (Apr. 29, 1998), § 9. Both provisions are entirely new additions to the Act.

Section 200.11 provides in relevant part:

It shall be unlawful for any business establishment or any private club to show or allow to be shown for entertainment purposes 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 portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. A violation of this section shall be a Class C felony.

Ala.Code § 13A-12-200.11. The term "business establishment" is not defined in § 200.11 or anywhere else in the Act as amended. Nor does § 200.11 or the amended Act define "for entertainment purposes." It seems possible, therefore, that the statute does not target only nude dancing venues, but also on its face extends to non-adult oriented business establishments such as for-profit theaters where works of "serious" artistic expression might be performed as entertainment. Ranch House, for its part, does not dispute that its activities come within the statute's prohibition.

The other provision challenged by Ranch House, § 200.5(4), provides in relevant part:

It shall be unlawful for any person to operate an adult bookstore, adult movie house, adult video store, or other form of adult-only enterprise within 1,000 feet of a church, place of worship, church bookstore, public park, public housing project, daycare center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence, or any other place frequented by minors. Any person who violates this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than [$10,000] and may be imprisoned in the county jail for not more than one year.

Ala.Code § 13A-12-200.5(4). The applicability of this statute to Ranch House's activities is undisputed. Ranch House concedes that it is an "adult-oriented enterprise" within the meaning of the statute, and the parties have stipulated that an occupied, single-residence structure is located within 1,000 feet of Ranch House's businesses. The parties have also stipulated that this statute, if enforced, would not totally deprive Ranch House of economic uses of its businesses. See Ranch House, 22 F.Supp.2d at 1297 ("[The Act] does not operate as a 'total taking' of the Plaintiff's property, and there are remaining economic uses to which the Plaintiff might subject its property presently housing the Platinum Club.").

II.

Ranch House filed its complaint on June 25, 1998, prior to the amended Act's effective date, alleging that §§ 200.11 and 200.5(4) are unconstitutional under the First Amendment to the United States Constitution.1 That same day it moved for a preliminary injunction against enforcement of the statutes. The district court, with the parties' agreement, consolidated the preliminary injunction hearing with a trial on the merits. After the parties stipulated to certain relevant facts, the district

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court conducted a bench trial that consisted entirely of oral argument by counsel. The court did not engage in any further factfinding on its own.

In an opinion dated September 30, 1998, the district court upheld the constitutionality of both statutes and, in an accompanying order, dismissed Ranch House's complaint. With respect to § 200.11, the court first quoted at length from the United States Supreme Court's plurality opinion in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), a case which involved a ban on public nudity generally. The district court adopted the reasoning of the Barnes plurality, and thereby essentially ruled that § 200.11 is a content-neutral restriction intended not to suppress the message conveyed by nude dancing, but rather to combat the "secondary effects" of that expression. Accordingly, the court applied the four-factor intermediate scrutiny analysis set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), rather than strict scrutiny as Ranch House proposed. The district court expressly addressed only one of the O'Brien factors-whether "the incidental restriction on alleged First Amendment freedoms [was] no greater than is essential to the furtherance of th[e asserted governmental] interest," id. at 376-377, 88 S.Ct. at 1678-79-and analyzed that factor solely with regard to the "extent of the opaque cover of body parts which the statute mandates." 22 F.Supp.2d at 1302. The court ultimately concluded that § 200.11 does not unreasonably diminish the expressive content of nude dancing, and therefore survives intermediate scrutiny. With respect to § 200.5(4), the district court's analysis consisted almost entirely of lengthy selective quotations from City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The court concluded that § 200.5(4) is facially valid and not overbroad.

After the district court ruled, Ranch House moved for an injunction pending appeal to avoid enforcement of these statutes. The district court granted that motion, and this Court subsequently granted Ranch House's motion to continue the injunction pending resolution of this appeal.

This appeal was first argued before a different panel of this Court in February 1999. That panel deferred any decision until after the Supreme Court issued its opinion in a case involving a similar but broader restriction on public nudity. See City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). The parties were then directed to submit supplemental briefs regarding the Supreme Court's opinion. The original panel was unable to reach a majority regarding disposition of the appeal. Accordingly, the matter was re-assigned to the present panel. The injunction entered by this Court to preserve the status quo has remained in place to this day.

III.

The standard of review in this case is undisputed. The constitutionality of a statute is a question of law subject to de novo review. See, e.g., Williams v. Pryor, 229 F.3d 1331, 1334 (11th Cir.2000); United States v. Harden, 37 F.3d 595, 602 (11th Cir.1994).

IV.

We first address the constitutionality of § 200.11's ban on the display of nudity by a "business establishment ... for entertainment purposes."2 Ranch House contends

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that the statute must, but cannot, survive strict scrutiny because it amounts to a content-based regulation of protected expression.3 Ranch House also contends that the statute fails even under intermediate scrutiny because it is plainly overbroad. Defendants respond that the...

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