Sammy's of Mobile, Ltd. v. City of Mobile, 96-7073.

• Decision Date: 08 May 1998
• Docket Number: No. 96-7073.,96-7073.
• Citation: 140 F.3d 993
• Parties: SAMMY'S OF MOBILE, LTD., an Alabama Limited Partnership; Sammy's Management Company, Inc., an Alabama Corporation, Plaintiffs-Appellants, v. CITY OF MOBILE, a Body Corporate and Politic, Defendant-Appellee. J & B SOCIAL CLUB, # 1, INC., d.b.a. The Candy Store, Jennifer Q. Bodiford; et al., Plaintiffs-Appellants, v. The CITY OF MOBILE, ALABAMA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

140 F.3d 993

SAMMY'S OF MOBILE, LTD., an Alabama Limited Partnership; Sammy's Management Company, Inc., an Alabama Corporation, Plaintiffs-Appellants, v. CITY OF MOBILE, a Body Corporate and Politic, Defendant-Appellee.

J & B SOCIAL CLUB, # 1, INC., d.b.a. The Candy Store, Jennifer Q. Bodiford; et al., Plaintiffs-Appellants, v. The CITY OF MOBILE, ALABAMA, Defendant-Appellee.

No. 96-7073.

United States Court of Appeals, Eleventh Circuit.

May 8, 1998.

Donald M. Briskman, Mobile, AL, Luke Charles Lirot, Lirot & Dolan, Tampa, FL, for Sammy's of Mobile and Sammy's Management.

Roderick P. Stout, W. Perry Hall, Mobile, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit Judges.

HILL, Senior Circuit Judge:

The City of Mobile prohibits nude dancing in establishments licensed to sell liquor. Two clubs brought suit seeking an injunction prohibiting the City from enforcing its ordinance. The clubs claim the ordinance violates their rights under the First Amendment to the Constitution. The district court granted summary judgment to the City. For the following reasons, we affirm.

I.

Ordinance 03-003¹ of the City of Mobile, Alabama provides:

It shall be unlawful for any manager, officer, agent, servant, employee, or person in charge of any establishment within the City of Mobile or the police jurisdiction thereof, licensed to sell spirituous or vinous liquors or malt or brewed beverages under the laws of the State of Alabama knowingly to exhibit, suffer, allow, permit, engage in, participate in, or be connected with, any motion picture, show, performance, or other presentation upon the licensed premises, which, in whole or in part, depicts nudity or sexual conducts or any simulation thereof.

Any person, firm or corporation convicted for violating this ordinance shall be fined not more than $500.00 and sentenced to imprisonment for a period not exceeding six months, at the discretion of the court trying the case.²

The preamble to the ordinance provides:

WHEREAS, the City Council of the City of Mobile, Alabama, finds and declares that nudity and sexual conduct and depiction thereof, coupled with alcohol in public places, encourages undesirable behavior and is not in the interest of the public health, safety, and welfare.

WHEREAS, the Council has chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell spiritous or vinous liquors or malt or brewed beverages.

NOW, THEREFORE, the Council adopts this Ordinance pursuant to the powers under the Twenty-first Amendment to the Constitution of the United States delegated to it by the State of Alabama.

Id.

Prior to the enactment of the ordinance, Sammy's of Mobile, Ltd., (Sammy's), and The Candy Store were licensed to sell alcoholic beverages for on-premises consumption and offered topless female dancing. Sammy's surrendered its liquor license after the passage of the ordinance, and continues to offer topless, as well as totally nude, dancing. The Candy Store has not surrendered its license and continues to provide topless dancing. Although the City has not yet enforced the ordinance against The Candy Store, the City has expressed an intent to do so.

Sammy's filed suit against the City in Alabama state court seeking declaratory and injunctive relief, and the City removed the action to federal district court. The complaint alleges that the ordinance is unenforceable under the doctrine of equitable estoppel and that it violates the free speech clause of the First Amendment, the takings clause of the Fifth Amendment, the equal protection clause, both the substantive and procedural guarantees of the due process clause of the Fourteenth Amendment, and the ex post facto clause.

The Candy Store filed suit in federal district court seeking injunctive relief and damages, alleging that the ordinance violates the First Amendment, the Fifth Amendment, and the equal protection clause of the Fourteenth Amendment and that the ordinance is unenforceable under the doctrine of res judicata.³

The two cases were consolidated and all parties moved for summary judgment. The district court granted summary judgment to the City on all claims. The court concluded that the ordinance does not offend the First Amendment under the four-part test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and that plaintiffs' remaining claims lack merit. Sammy's and The Candy Store appeal, contending that the district court erred in holding that the ordinance does not offend the First Amendment or the due process and equal protection clauses of the fourteenth Amendment. We review the district court's grant of summary judgment de novo. Gordan v. Cochran, 116 F.3d 1438, 1439 (11th Cir.1997).

II.

The Supreme Court has long upheld ordinances such as Mobile's. In California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), the Court approved, as a valid exercise of the general police power an ordinance prohibiting nude dancing where liquor was sold. The Court found the "conclusion, embodied in these regulations, that certain sexual performances and the dispensing of liquor by the drink ought not to occur at premises that have licenses was not an irrational one." Id. at 118, 93 S.Ct. at 397. Since then, many similar ordinances have been approved, including several in this circuit. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981); City of Newport v. Iacobucci, 479 U.S. 1047, 107 S.Ct. 913, 93 L.Ed.2d 862 (1987); Lanier v. City of Newton, 842 F.2d 253 (11th Cir.1988); Int'l Eateries of America v. Broward County, 941 F.2d 1157, 1162 (11th Cir.1991); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982); Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641, 645 (M.D.Fla.1994), aff'd per curiam, 66 F.3d 272 (11th Cir.1995).

Although such ordinances regulate expressive conduct,⁴ the Court has determined that they are content-neutral and should be reviewed under the intermediate level of scrutiny articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 2462-63, 115 L.Ed.2d 504 (1991). Under this test, an ordinance is constitutional if: (1) the interest served is within the power of the government; (2) the regulation furthers that interest; (3) the interest served is unrelated to free expression; and (4) there is no less restrictive alternative. O'Brien at 377, 88 S.Ct. at 1679 (quoted in Barnes, 501 U.S. at 567, 111 S.Ct. at 2461). In Barnes, the Court applied this test in upholding Indiana's prohibition on public nudity as applied to nude dancing. 501 U.S. at 570, 111 S.Ct. at 2462-63.

Recently, the Supreme Court has reaffirmed the precedential value of LaRue and the Barnes-O'Brien test. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). Although the Court disavowed the idea expressed in a long line of cases, including LaRue, that the Twenty-first Amendment lends an added presumption in favor of the validity of regulation of otherwise protected speech when it is at the site of the sale of alcoholic beverages, the Court observed that "[e]ntirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations." 517 U.S. at 515, 116 S.Ct. at 1514. This power is located in the inherent police power of every state to regulate to promote public decency. Id.

The Court also reaffirmed that the Barnes-O'Brien intermediate level of review applies to such ordinances. Id. Under this test, the Court concluded, even after 44 Liquormart, LaRue, "would come out the same way." Id. We are informed by this guidance and agree with the district court that the Barnes-O'Brien test is applicable to the Mobile ordinance.⁵

The district court held that the Mobile ordinance passes all these tests for a constitutional regulation of expressive conduct: the regulation of public health, safety, and morals is a valid and substantial state interest; the Mobile ordinance's statement of purpose and findings as to the problems created by the combination of alcohol and nude entertainment are sufficient to support the requirement that the regulation further this interest; this interest is unrelated to the suppression of free expression; and the ordinance is narrowly tailored to the perceived problem.

We agree. The preamble to the ordinance finds that nudity and sexually explicit entertainment coupled with alcohol in public places "encourages undesirable behavior and is not in the interest of public health, safety, and welfare." Thus, the ordinance is aimed at the very type of harm found to create a substantial government interest in LaRue, Barnes, International Eateries and a host of other cases. Furthermore, Mobile has a "reasonable basis" for believing that its ordinance will serve this substantial governmental interest. See Int'l Eateries, 941 F.2d at 1162. The district court located this reasonable basis in the experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well as their own wisdom and common sense. This is sufficient.⁶ The Supreme Court has itself noted that "[c]ommon sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior." Bellanca, 452 U.S. at 718, 101 S.Ct. at 2601. Finally, the requirement that the dancers partially cover their breasts or cease to serve alcohol is certainly the least restriction possible which would still further the city's interest in controlling the combustible mixture of alcohol and nudity.

The dissent believes that the ordinance does not meet the third requirement of this...