Peek–a–boo Lounge of Bradenton Inc. v. Manatee County

• Decision Date: 21 January 2011
• Docket Number: No. 09–16438.,09–16438.
• Citation: 630 F.3d 1346
• Parties: PEEK–A–BOO LOUNGE OF BRADENTON, INC., a Florida Corporation d.b.a. Peek–A–Boo Lounge, Plaintiff–Appellant,v.MANATEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

630 F.3d 1346

22 Fla. L. Weekly Fed. C 1703

PEEK–A–BOO LOUNGE OF BRADENTON, INC., a Florida Corporation d.b.a. Peek–A–Boo Lounge, Plaintiff–Appellant,

v.MANATEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant–Appellee.

No. 09–16438.

United States Court of Appeals, Eleventh Circuit.

Jan. 21, 2011.

Luke Charles Lirot, Luke Lirot, P.A., Clearwater, FL, for Plaintiff–Appellant.Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN, James A. Minix, Bradenton, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before HULL and MARCUS, Circuit Judges, and COOKE,^* District Judge.MARCUS, Circuit Judge:

At issue today is the constitutionality of an ordinance that the Manatee County, Florida Board of County Commissioners (“the Board”) adopted to regulate sexually oriented businesses in Manatee County (“the County”). Peek–a–Boo Lounge of Bradenton, Inc. (“Peek–a–Boo”), an adult dancing establishment in Manatee County, along with two similar establishments,¹ sued the County claiming that the ordinance violated the First Amendment. Peek–a–Boo appeals the district court's grant of summary judgment in favor of the County. After thorough review of the ordinance and the extensive record surrounding its codification, we agree with the district court that the County's ordinance was reasonably designed to serve a substantial government interest—reducing the negative secondary effects associated with sexually oriented businesses. Accordingly, we affirm.

I.

The story begins in 1987, when Manatee County adopted an “Adult Entertainment Code,” Ordinance 87–07 (not at issue today), which rendered then-existing adult dancing establishments Peek–a–Boo and M.S. Entertainment, Inc. (“M.S.”) nonconforming. Peek–a–Boo and M.S. filed suit in the United States District Court for the Middle District of Florida challenging the ordinance's constitutionality under the First Amendment. But in 1989, the parties settled their dispute, allowing the two establishments to continue running and enjoining the County from enforcing the ordinance against them for the way they then operated.

In November 1998, the County amended the Adult Entertainment Code, this time enacting a zoning ordinance, Ordinance 98–46 (also not at issue today), which set forth specific physical requirements for the premises of adult dancing establishments. Peek–a–Boo and M.S. again found themselves in violation of the Adult Entertainment Code. Four months later, the County also adopted a generally applicable public nudity ordinance, Ordinance 99–18. This ordinance defined “nudity” broadly, to include the wearing of any opaque swimsuit or lingerie covering less than one-third of the buttocks or one-fourth of the female breast. The ordinance also specifically prohibited erotic dancers and others from appearing in public in “G-strings, T-backs, dental floss, and thongs.”

Peek–a–Boo and M.S. again sued the County, challenging the constitutionality of both ordinances on First Amendment grounds. The district court concluded that the ordinances were constitutional and granted summary judgment in favor of the County. A panel of this Court, however, reversed, holding that the zoning ordinance violated the First Amendment and that there were genuine issues of material fact concerning whether the public nudity ordinance furthered the County's interest in curbing the negative secondary effects associated with adult entertainment. Peek–a–Boo Lounge of Bradenton, Inc. v. Manatee Cnty., 337 F.3d 1251, 1268–69, 1274 (11th Cir.2003) (“ Peek–a–Boo I”). Essential to our finding that the ordinance was unconstitutional, we observed that the Board “failed to rely on any evidence whatsoever that might support the conclusion that the ordinance was narrowly tailored to serve the County's interest in combating secondary effects.” Id. at 1266. We also found that, while the County relied on some evidence to meet its initial burden in adopting Ordinance 99–18, the public nudity ordinance, the plaintiffs had then met their burden of submitting evidence sufficient to “cast direct doubt” on the County's rationale. Id. at 1271–72. Accordingly, we remanded the case to the district court for a determination of whether there remained credible evidence upon which the County could reasonably rely to support its stated rationale for the public nudity ordinance. Id. at 1274–75.

After the Peek–a–Boo I decision, the County completely overhauled its Adult Entertainment Code. It enacted Ordinance 05–21²—the ordinance at issue today—renaming the code the “Sexually Oriented Business Code,” and establishing a different set of regulations to govern the manner in which sexually oriented businesses operate in the County. The new ordinance contains both zoning and public nudity provisions.³ The zoning provisions include physical requirements for the premises of sexually oriented businesses, restrictions on their hours of operation, and a prohibition on serving alcoholic beverages. Manatee County, Fla., Code of Ordinances §§ 2–2.5–4—2–2.5–18 (2005). The nudity provisions include an across-the-board ban on appearing in a “state of nudity,” id. § 2–2.5–18(a), defined as “the showing of the human male or female genitals, pubic area, vulva, or anus with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola,” id. § 2–2.5–2. The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2–2.5–18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2–2.5–2. Employees appearing semi-nude, however, must “remain[ ] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.” Id. § 2–2.5–18(b). Employees are prohibited from touching customers or customers' clothing. Id. § 2–2.5–18(c).

Unlike when the County adopted Ordinances 98–46 and 99–18, this time the County relied on a voluminous record that included judicial opinions; multiple secondary-effects reports, including land-use studies and crime reports; affidavits from a local private investigator and from local police; newspaper articles; and other materials. The County conducted a four-hour public hearing at which experts testified both for and against the ordinance. In support of the County's proposal, Richard McCleary, Ph.D., a professor of criminology, and Shawn Wilson, a real estate appraiser, testified about the adverse secondary effects associated with sexually oriented businesses. In opposition, the Plaintiffs offered the testimony of four experts: Randy D. Fisher, Ph.D., an associate professor of psychology; Terry A. Danner, Ph.D., a professor of criminal justice; Judith Lynne Hanna, Ph.D., a scholar of anthropology and dance; and Richard Schauseil, a licensed real estate agent. We detail the evidential foundation at some length because it stands at the heart of whether the County relied on a sufficient record.

Dr. McCleary testified that much of the evidence supported the County's rationale. He explained that the formal criminological literature revealed consistent findings of significant crime-related hazards caused by sexually oriented businesses. These findings led him to conclude that “the relationship between crime and sexually oriented businesses is ... a scientific fact.” One reason, he offered, is that sexually oriented businesses attract “soft targets,” meaning patrons who are easy crime targets because they often come from far away, do not know the neighborhood, try to remain anonymous, and are less likely to report crimes of borderline seriousness because they do not want anyone to know that they are patronizing such businesses. Another reason Dr. McCleary offered is that features of the physical layout of these businesses—including private rooms and narrow corridors—strongly inhibited surveillance and policing.

Dr. McCleary also explained that there were between one and two dozen studies establishing a correlation between sexually oriented businesses and negative secondary effects that were “scientific to some degree.” Dr. McCleary highlighted two such studies that supported the County's findings that sexually oriented businesses cause negative secondary effects. In the first one from Garden Grove, California, Dr. McCleary and a colleague examined locations where new sexually oriented businesses had opened up and compared the crime rates one year before and one year after they opened, using existing sexually oriented businesses as controls. They found a far greater increase in crime during that time period surrounding the new sexually oriented businesses than surrounding the existing similar businesses. In the second study drawn from Greensboro, North Carolina, even though the study's authors concluded that sexually oriented businesses did not cause negative secondary effects, Dr. McCleary said that another look at their data showed significantly higher rates of crime in neighborhoods with sexually oriented businesses.

Shawn Wilson, a real estate appraiser, testified about the negative effects of sexually oriented businesses on property value. Ms. Wilson explained that she had examined studies drawn from other cities on the secondary effects associated with sexually oriented businesses and that all of the studies addressing the value of real estate concluded that there were, in fact, negative secondary effects. Ms. Wilson also looked at the deeds in her own files, spoke with market participants, and met with other real estate appraisers. Although she acknowledged that these...