Peek-a-Boo Lounge of Bradenton v. Manatee County, 02-12281.

• Decision Date: 15 July 2003
• Docket Number: No. 02-12281.,02-12281.
• Parties: PEEK-A-BOO LOUNGE OF BRADENTON, INC., a Florida corporation, M.S. Entertainment, Inc., a Florida corporation, Plaintiffs-Appellants, v. MANATEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

337 F.3d 1251

PEEK-A-BOO LOUNGE OF BRADENTON, INC., a Florida corporation, M.S. Entertainment, Inc., a Florida corporation, Plaintiffs-Appellants, v. MANATEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Defendant-Appellee.

No. 02-12281.

United States Court of Appeals, Eleventh Circuit.

July 15, 2003.

Luke Charles Lirot, Luke Charles Lirot, P.A., Tampa, FL, for Plaintiffs-Appellants.

James A. Minix, Bradenton, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, and BARKETT and COX, Circuit Judges.

BARKETT, Circuit Judge:

Peek-A-Boo Lounge of Bradenton, Inc. and M.S. Entertainment, Inc. d/b/a Temptations II ("the Adult Lounges"), two adult dancing establishments, appeal the District Court's grant of summary judgment to Manatee County, Florida ("the County"), upholding the constitutionality of two County ordinances that regulate adult dancing establishments and public nudity. The Adult Lounges argue that Ordinance 98-46, which imposes requirements on the physical layout of adult dancing establishments and allows the County Sheriff to search such premises without a warrant, and Ordinance 99-18, a general public nudity statute, violate their First, Fourth, Fifth, and Fourteenth Amendment rights. In addition, the Adult Lounges contend that both ordinances impair their previously approved settlement agreement with the County and thus violate the Contract Clause, U.S. Const. Art. I, § 10, cl. 1. Finally, the Adult Lounges maintain that Ordinance 99-18 is both preempted by, and inconsistent with, Florida state law.

I. BACKGROUND

In 1987, Manatee County adopted Ordinance 87-07, an "Adult Entertainment Code," which made the locations of Appellants' existing businesses, the County's only two licensed adult dancing facilities, nonconforming. Appellants filed suit in federal court challenging the constitutionality of the ordinance. The parties settled the lawsuit on April 11, 1989, with an agreement that allowed the Adult Lounges to continue to provide adult entertainment. The settlement effectuated a permanent injunction that enjoined the County from enforcing Ordinance 87-07 against the Adult Lounges for the current use of their properties.

Almost ten years later, on November 24, 1998, the Manatee County Board of County Commissioners ("the Board") enacted a similar ordinance, Ordinance 98-46, which amended the County's Adult Entertainment Code, Chapter 2-2.5-59 of the Manatee County Code of Laws, by providing specific physical requirements for premises used as adult dancing establishments, and which again made Appellants' businesses nonconforming.¹

Four months later, Manatee County adopted "Public Nudity Ordinance" 99-18, which made it unlawful "to knowingly, intentionally, or recklessly appear, or cause another Person to appear, Nude in a Public Place." Although Ordinance 99-18 was not exclusively directed toward adult entertainment establishments, its stated aim was, inter alia, to prevent "incidents of prostitution, sexual assaults and batteries, [and] other criminal activity" that the County found to be associated with "the mere appearance of nude persons in public places." The ordinance identified "public places" to include "streets, sidewalks, parks, beaches, [and] business and commercial establishments." Ordinance 99-18 also 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.² Further, the ordinance specifically prohibited erotic dancers and others from appearing in public wearing "G-strings, T-backs, dental floss, and thongs."

In passing Ordinance 99-18, the Board rejected the recommendation by the Manatee County Public Planning Commission that the ordinance "shall not apply to duly licensed adult entertainment establishments" like the Adult Lounges. However, in order to address possible overbreadth and other constitutional problems, the Board acknowledged in the ordinance's preamble that "there may be instances where appearing Nude in a Public Place may be expressive conduct incidental to and a necessary part of the freedom of expression that is protected by United States or Florida constitutional provisions." The ordinance also exempted from its coverage any "bona fide live communication, demonstration, or performance ... [that] is not a guise or pretense utilized to exploit nudity for profit or commercial gain."

One month before the two ordinances were to take effect, the Adult Lounges filed a complaint in the United States District Court, Middle District of Florida, pursuant to 42 U.S.C. § 1983,³ alleging that the ordinances were unconstitutional. Specifically, the Adult Lounges argued that both ordinances were overbroad, were adopted on the basis of an improper predicate, failed to advance any legitimate governmental interest, constituted an invalid taking, and impaired the County's contractual obligations under the 1989 settlement; that Ordinance 99-18 was unconstitutionally vague; and that Ordinance 98-46 violated both the Fourth Amendment's prohibition of warrantless searches and the Fourteenth Amendment's guarantee of equal protection. The Adult Lounges also included claims for several alleged violations of Florida law.

On January 11, 2001, having submitted to the District Court a record of the evidence it relied on when enacting the ordinances, the County moved for summary judgment. The Adult Lounges opposed this motion and submitted affidavits and expert studies contesting the County's findings concerning the negative effects caused by its businesses on the surrounding community. The District Court granted the County's motion for summary judgment, and this appeal followed.

II. STANDARD OF REVIEW

We review the District Court's grant of final summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party. See Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir.2002). 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).

III. DISCUSSION

A. Summary of Supreme Court's "Secondary Effects" Jurisprudence

This case involves two ordinances, a zoning ordinance and a general public nudity ordinance, both of which are alleged to violate Appellants' First Amendment rights to freedom of expression. To guide our analysis, we begin with a comprehensive summary of the Supreme Court's jurisprudence in this area. The discussion is extensive, in part because of the large number of no-clear-majority decisions of the Court in cases of this type. Moreover, our task is complicated because although the Court has formulated distinct standards for evaluating the two kinds of regulation enacted by the County in this case—zoning ordinances and public nudity ordinances—the Court also has sometimes collapsed the two categories into a single, overarching category of regulatory action targeting the negative "secondary effects" of non-obscene adult entertainment and drawn conclusions about this single category. See generally City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002); City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Additionally, the Court has occasionally borrowed specific doctrines developed in one category of case to apply to the other. See, e.g. Alameda Books, 122 S.Ct. at 1736 (plurality opinion) (relying on the Court's holding in Pap's A.M., a case involving a public nudity ordinance, to explicate the evidentiary showing necessary to sustain an adult entertainment zoning ordinance); Barnes, 501 U.S. at 583-84, 111 S.Ct. 2456 (Souter, J., concurring) (relying on the evidentiary standard described in Renton, a zoning case, to explicate the evidentiary showing necessary to sustain a public nudity ordinance). After identifying the applicable standards, we apply them to each of the ordinances at issue in this case.

1. California v. LaRue and Doran v. Salem Inn

The Supreme Court first recognized the existence of First Amendment freedom of expression rights in the adult entertainment context in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). In that case, the Court upheld the constitutionality of state-wide licensing regulations enacted by the California Department of Alcoholic Beverage Control that prohibited sexually explicit live entertainment in establishments licensed to sell liquor. The Court held that California had broad latitude under the Twenty-first Amendment to control the manner and circumstances under which liquor may be sold.⁴ The Court acknowledged that "at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression." LaRue, 409 U.S. at 118, 93 S.Ct. 390. However, the Court emphasized that "the critical fact is that California has not forbidden these performances across the board" but "merely proscribed such performances in establishments that it licenses to sell liquor by the drink." Id.

However, in Doran v. Salem Inn, 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), the Court affirmed the grant of a preliminary injunction against the enforcement of a town ordinance which proscribed topless dancing in bars as well as prohibiting "any female from appearing in `any public place' with uncovered breasts." Doran, 422 U.S. at 933, 95 S.Ct. 2561.<sup>5</sup> The Court declared that "although the customary `barroom' type of nude dancing may involve only the barest minimum of protected...