Ranch House, Inc. v. Amerson

• Decision Date: 29 June 2001
• Docket Number: No. CV98-PT-1638-E.,CV98-PT-1638-E.
• Citation: 146 F.Supp.2d 1180
• Parties: THE RANCH HOUSE, INC., Plaintiff, v. Larry AMERSON, et. al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

146 F.Supp.2d 1180

THE RANCH HOUSE, INC., Plaintiff, v. Larry AMERSON, et. al., Defendants.

No. CV98-PT-1638-E.

United States District Court, N.D. Alabama, Eastern Division.

June 29, 2001.

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George A. Monk, Brooks Harmon & Monk LLC, Anniston, AL, Steven H. Swander, Fort Worth, TX, for Ranch House Inc., dba The Platinum Club, dba The Platinum Entertainment Center dba The Platinum Sports Bar.

Margaret L. Fleming, Charles B. Campbell, William P. Clifford, Office of the Attorney General, Montgomery, AL, George D. Robinson, Rogers Young Wollstein Jackson & Whittington LLC, Thomas M. Sowa, State of Alabama-Calhoun County, Anniston, AL, for Larry Amerson and Calhoun County Commission.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PROPST, Senior District Judge.

This cause came to be heard at a second trial on June 4, 2001, upon the remand from the United States Court of Appeals for the Eleventh Circuit.

BACKGROUND

On April 29, 1998, the Governor of Alabama approved Act No. 98-467 of the Alabama Legislature, which amended Division 5 of Chapter 12 of the Alabama Criminal Code, § 13A-12-200.1 et seq., Code of Alabama 1975, also known as the "Alabama Anti-Obscenity Enforcement Act." The plaintiff filed this action on June 25, 1998, challenging Ala.Code §§ 13A-12-200.11 and 13-A-200.5(4), new additions to Division 5. The parties totally stipulated the pertinent facts during the first trial, which was conducted on August 24, 1998. This court issued its first decision on September 30, 1998, found at Ranch House, Inc. v. Amerson, 22 F.Supp.2d 1296 (N.D.Ala. 1998). The pertinent stipulated facts include¹:

4. Since 1993, the plaintiff has owned and operated an establishment known as the Platinum Club which, as its main attraction, provides entertainment consisting of topless and nude female dancing. The Platinum Club is not licensed to sell, serve, or otherwise provide for the distribution or consumption of alcoholic beverages in connection with the nude or topless dance performances conducted on its premises.

5. Neither the plaintiff's shareholder, Harvey Bowman, nor any manager, employee or entertainer, has been arrested or charged with an obscenity violation for activities at the Platinum Club.

6. The plaintiff further owns an adjacent facility known as the Platinum Sports Bar which is licensed to serve beer and wine.

7. The plaintiff's business is located in an unincorporated area of Calhoun County lying within the police jurisdiction of a municipality. The plaintiff has paid taxes to the City of Anniston, Alabama.

8. An occupied, single-family residential structure is located within 1,000 feet of the plaintiff's establishment.

13. Act No. 98-467 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.

14. There is, at present, land in Calhoun County, Alabama and elsewhere in the State of Alabama that is not within 1000 feet of one of the protected uses set forth in Section 13A-12-200.5(4).

15. The defendant Sheriff has, through his counsel, advised the plaintiff, through its counsel, of his intent to enforce the statute according to its terms should it be deemed constitutional, if the District Attorney agrees to prosecute such action.

The plaintiff claimed that § 200.11 is an unconstitutional content-based restriction of free expression, and that § 200.5(4) is an unconstitutional denial of access to protected expression.² The defendants contend that both sections are constitutional because they target, not the content of nude dancing, but the negative secondary effects of nude dancing on the surrounding community. The defendants further contend that neither section is unconstitutionally vague or substantially overbroad. This court's ruling of September 30, 1998 upheld both statutes, concluding that, under the negative secondary effects doctrine, both statutes were not content-based restrictions on free expression, and that § 200.5(4) was a reasonable time, place, and manner restriction that was not overbroad. Ranch House, 22 F.Supp.2d at 1305-1306, 1309-1310.

THE ELEVENTH CIRCUIT OPINION

The plaintiff filed an appeal from this court's ruling on October 28, 1998. The plaintiff also moved for an injunction pending appeal to avoid enforcement of the statutes at issue. This court's stay was dissolved by its own language on December 2, 1998. On the same day, the Eleventh Circuit granted an injunction pending resolution of the appeal. The injunction is still in place.

The matter was first argued before a panel of the Eleventh Circuit in February of 1999. That panel deferred its decision in the case until after the Supreme Court issued its opinion in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). After the Pap's decision was rendered, however, the first Eleventh Circuit panel found that it could not reach a majority decision and reassigned this case to a different panel.

In an opinion dated January 17, 2001, the Eleventh Circuit vacated this court's September 30, 1998 ruling and remanded the case, by a mandate dated February 22, 2001, for further evidentiary development and findings of fact beyond the facts as stipulated by the parties. Ranch House v. Amerson, 238 F.3d 1273, 1288 (11th Cir. 2001). In short, the court decided that the parties had not presented sufficient facts, albeit fully stipulated, to allow this court to conclude that, when the Alabama legislature passed § 200.11, it actually had considered the negative secondary effects of nude dancing establishments and had drafted the statute to combat those negative secondary effects. Id. at 1283. Additionally, the circuit court remanded the case so that this court could further consider the potential overbreadth of the scope of § 200.11. Id. at 1285-1286. The court also gave the State of Alabama the opportunity to participate in the proceedings and to help the defendants develop an evidentiary foundation for their negative secondary effects defense.³ Finally, the plaintiff was given the opportunity to mount "as applied" challenges, even if not previously asserted, to both §§ 200.11 and 200.5(4). Id. at 1284, 1288. In so doing, the Eleventh Circuit highlighted several issues for this court to consider and, concerning which, to make specific findings. This court will enumerate them here and then discuss them separately later in this opinion. The issues specifically to be addressed are:

1) The availability of the negative secondary effects doctrine as to § 200.11. Id. at 1284.

2) Whether, regardless of its success under the negative secondary effects doctrine, § 200.11 would fail the intermediate scrutiny test set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), because it proscribes too much protected expression. Ranch House, 238 F.3d at 1285.

3) If the plaintiff mounts an "as applied" challenge to § 200.11, whether the statute is unconstitutional as applied to the plaintiff. Id. at 1284.⁴

4) If § 200.5(4) were to be found to be a reasonable time, place, and manner restriction, whether § 200.5(4) is nevertheless unconstitutional as applied to the plaintiff because it does not contain an express, or sufficient, amortization clause for existing businesses. Id. at 1287.

5) If § 200.5(4) were to be found to be a reasonable time, place, and manner restriction, whether enforcing the § 200.5(4) zoning regime would immediately substantially suppress all such protected speech, and, if so, whether the statute would cut off public access to such speech and, therefore, be unconstitutional. Id. at 1287-1288.

6) If § 200.5(4) were to be found to be a reasonable time, place, and manner restriction, whether the statute is nevertheless unconstitutional because of the lack of safeguards, within the statute, to protect adult entertainment businesses from the "purposeful encroachment" of uses protected by the statute that would operate to drive adult entertainment businesses out of Calhoun County. Id. at 1288, 1288 n. 10.⁵

This court initially set this matter for trial on May 17, 2001. The parties jointly requested a continuance for various reasons relating to the availability of witnesses, etc. The court conducted the trial on June 4, 2001.

CONTENTIONS OF THE PARTIES

The plaintiff first argues that "[t]he legislative history [of § 13A-12-200.11] in no manner reveals a `secondary effects' concern or purpose with the enactment of [§ 200.11]...." The plaintiff further argues that the defendants should not be permitted to present evidence, outside the official legislative record, that the legislature intended to combat secondary effects when passing the statute. It claims that the Supreme Court of Alabama refuses to consider such evidence when attempting to determine legislative intent, citing James v. Todd, 267 Ala. 495, 103 So.2d 19, 28-29 (1957), and Eagerton v. Terra Resources, Inc., 426 So.2d 807, 809 (Ala.1982). The plaintiff contends that, pursuant to Erie Railroad Company v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)("Except in matters governed by the U.S. Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern.") and Kirby v. Tennessee Valley Authority, 877 F.Supp. 589, 591 (N.D.Ala. 1994)("The purported evidence therein proffered by individual members of the legislature is inadmissible to prove legislative intent for the reason that it is well settled that the intent of the legislature is expressed in the Statute, and the motives of individual members of the legislature or the intentions of draftsmen, or of any other person, will not be looked into by the court if their motives or intentions are...