D.H.L. Associates v. O'Gorman

• Court: Court of Appeals for the First Circuit
• Decided: December 17, 1999
• Docket: 98-1688
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1688



                     D.H.L. ASSOCIATES, INC.,



                      Plaintiff, Appellant,



                                v.



                 JOHN O'GORMAN, ROBERT WALLACE, 

            WARREN ALLGROVE, JR, AND EILEEN FARRELL,

INDIVIDUALLY AND IN THEIR CAPACITY AS THE TYNGSBOROUGH BOARD OF

     SELECTMEN, AND AS THE LICENSING BOARD FOR THE TOWN OF

          TYNGSBOROUGH, AND THE TOWN OF TYNGSBOROUGH,

                                

                     Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

          [Hon. Robert E. Keeton, U.S. District Judge]


Before

                                

                      Selya, Circuit Judge,

                 Coffin, Senior Circuit Judge,

                   and Lipez, Circuit Judge.


Thomas Lesser with whom William C. Newman was on brief for

appellant.

     Richard Bowen with whom Jonathan M. Silverstein and

Christopher J. Pollart were on brief for appellees.


December 17, 1999


COFFIN, Senior Circuit Judge.  Plaintiff-appellant D.H.L.

Associates, Inc., has sought annually since 1994 to persuade

defendants-appellees, the town of Tyngsborough, Massachusetts, and

its board of selectmen to license it to provide nude dancing at its

restaurant, "Matthew's."  D.H.L. has never been successful in this

endeavor because Matthew's is not located within the area of

Tyngsborough zoned to allow adult entertainment.  In this case,

D.H.L. challenges the constitutionality of Tyngsborough's zoning

ordinance, alleging that even as revised since 1994, it does not

meet the standards set forth in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), and thus violates D.H.L.'s

constitutionally protected freedom of speech.  The district court

held the ordinance to be constitutional, and from that judgment

D.H.L. appeals.  Finding no constitutional infirmity in

Tyngsborough's zoning ordinance, we affirm.

                      I. Factual Background

     Tyngsborough, a rural town of approximately 9500 inhabitants,

is located about 40 miles from Boston near the Massachusetts/New

Hampshire border.  The Tyngsborough board of selectmen acts as the

town's executive branch and is authorized to act as the licensing

authority for alcoholic beverage and entertainment licenses.  Town

residents voting at meetings constitute the legislative branch of

the town's government and as such are responsible for enacting the

zoning ordinances at issue here.

     The Town has altered its zoning ordinance multiple times in

the past decade.  In 1987, the Town, by a vote of the majority of

residents at a town meeting, established the "B-4 zone," in which

adult entertainment, as well as other commercial uses, was

authorized.  The B-4 zone, although existing in theory, did not

actually contain any parcels of land and was, in fact, a "phantom

zone."  In 1992, D.H.L. applied for and was issued both an all-

alcoholic beverage license and a live entertainment license for its

restaurant called "Bogie's," later called "Matthew's," located in

a general commercial use zone.

     In January 1994, D.H.L. advertised that it would present nude

dancing beginning in February.  The following month, an open town

meeting was held in Tyngsborough to discuss adult entertainment and

on February 24, the Town notified D.H.L. that adult entertainment

was not encompassed within its entertainment license.  On March 7,

D.H.L. applied to amend its entertainment license to include adult

entertainment, under protest based on its belief that its

entertainment license inherently authorized adult entertainment. 

On March 28, the board of selectmen held a hearing to consider

D.H.L.'s request, but delayed a decision.  The next evening, as a

result of a petition signed by more than 650 registered voters,  a

special town meeting was held to consider adopting an ordinance

that would prohibit establishments holding liquor licenses from

offering any form of nude entertainment.

     Although the Town did not adopt such an ordinance, town

residents at the meeting unanimously adopted an amended version of

the zoning ordinance to establish a B-4 zone of two lots of land. 

The selectmen subsequently denied D.H.L.'s application to amend its

entertainment license to include live nude dancing on the basis

that the restaurant was not located within the B-4 zone.  Each year

since then, the Town has reissued D.H.L.'s entertainment license

but refused to extend it to include nude dancing.  Aside from a

two-day license suspension in March 1994, the Town has never

attempted to enforce the limitations of D.H.L.'s license or

otherwise sanction it for its violation of zoning and licensing

regulations, despite the fact that D.H.L. has continued to offer

nude dancing on a daily basis.  The Town has, however, represented

to D.H.L. and to this court that it is delaying enforcement only

until this litigation concludes.

     In 1994, D.H.L. filed a claim against the Town and its board

of selectmen in state court, alleging, inter alia, that its state

and federal constitutional rights had been violated and seeking

declaratory and injunctive relief as well as damages.  Defendants

successfully sought removal of the case to federal court.  

     Prior to trial, at a town meeting in May 1996, the Town

established an entirely different B-4 zone comprised of 10.4 acres

and consisting of 5 of the 24 lots in Applewood Commercial Park

subdivision.  It was the constitutionality of this zone that the

district court upheld following a bench trial in April 1998.  The

district court ruled in favor of Tyngsborough on D.H.L.'s federal

constitutional claims, on the grounds that the constitutionality of

the 1987 and 1994 zones were moot issues and the 1996 zone was

constitutional, and remanded D.H.L.'s remaining state claims to

state court for adjudication.  D.H.L. appeals, arguing that the

issue of whether its rights were violated under the prior

ordinances was not moot and that even if the 1996 ordinance were

the appropriate benchmark for consideration, it was not

constitutional.

                      II. Preliminary Issues

          A.  Ripeness

     Initially, we were concerned that D.H.L.'s claims were not

ripe for review because D.H.L. has continued to provide adult

entertainment despite its lack of a license without sanction.  We

have resolved this concern, however, because the Town has

represented to the court, consistent with a selectman's testimony

at trial, that it is delaying enforcement of the ordinance against

D.H.L. only until this litigation concludes.  Our jurisdiction as

a federal court extends only to "cases" and "controversies," as

authorized by Article III, Section 2, of the United States

Constitution.  This means that issues before us must reflect a live

dispute between adverse parties.

     The Supreme Court has explained that the determination of

ripeness depends on "the fitness of the issues for judicial

decision" and "the hardship to the parties of withholding court

consideration."  Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

     In situations similar to the present one, prospective

enforcement of an ordinance has been found sufficient to generate

a live case.  See, e.g., Sable Communications of California, Inc.

v. Pacific Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir. 1989) ("A

threat that emanates from a regulation, compulsory in nature, to

which the plaintiff is currently subject, is real and immediate if

the possibility of enforcement is more than hypothetical.").  When

a constitutional claim is at issue, a plaintiff need not "await the

consummation of the threatened injury to obtain preventive relief." 

Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923).  

     In this case, it is clear that D.H.L. is subject to a real and

immediate threat of enforcement of Tyngsborough's zoning ordinance

and therefore its claims are ripe for our consideration.  See

Pustell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st Cir. 1994);

Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir.

1988).

     B. Mootness

     Next, we address D.H.L.'s argument that the district court

erred by holding that the constitutionality of the 1987 and 1994

zones were moot issues.  D.H.L. contends that these issues are, in

fact, dispositive of the case.  We review the court's determination

of mootness de novo.  See Verhoeven v. Brunswick Sch. Comm., 1999

WL 721698, *4 (lst Cir., Sept. 21, 1999).

     "Simply stated, a case is moot when the issues presented are

no longer 'live' or the parties lack a legally cognizable interest

in the outcome."  Powell v. McCormack, 395 U.S. 486, 496 (1969). 

The Supreme Court has described mootness as "'the doctrine of

standing set in a time frame: The requisite personal interest that

must exist at the commencement of the litigation (standing) must

continue through its existence (mootness).'" United States Parole

Comm'n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry P.

Monaghan, "Constitutional Adjudication: The Who and When," 82 Yale

L.J. 1353, 1384 (1973)).  

     We conclude that the validity of the 1987 and 1994 ordinances

are moot issues because even if we were to find the provisions

unconstitutional, D.H.L. would not be entitled to any relief. 

First, D.H.L. cannot allege damages from the application of the

1987 or the 1994 ordinance because neither was ever enforced

against D.H.L.  Although D.H.L. was denied a permit under the

authority of the 1994 ordinance, it continued to engage in the

prohibited conduct on a daily basis without repercussion.  Although

a claim for damages from a no longer effective ordinance might in

other circumstances save the issue of the ordinance's lawfulness

from a determination of mootness, D.H.L. can make no such claim

here.  See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478

n.1 (1989) (plaintiff's claims not moot even though challenged

ordinance repealed because town refused to grant contracts to

plaintiff while ordinance was in effect).

     Second, we are without power to grant injunctive and

declaratory relief because the 1987 and 1994 ordinances no longer

exist.  In Diffenderfer v. Central Baptist Church, Inc., 404 U.S.

412 (1972), the Supreme Court emphasized that it had to "review the

judgment of the district court in light of [state] law as it now

stands, not as it stood when the judgment below was entered."  See

id. at 414-15 (holding that when the only relief sought was a

declaratory judgment that a statute was unconstitutional, but the

statute was repealed pending appeal, the case was moot).  The Court

has also stated that when a challenged federal statute is amended

after review by courts of appeals, the issues presented to the

Supreme Court on appeal are rendered moot.  See United States Dep't

of Justice v. Provenzano, 469 U.S. 14, 15 (1984); see also Burke v.

Barnes, 479 U.S. 361, 363 (1987) (finding that case was moot when

bill at issue expired after the court of appeals entered judgment

and stating that "it is not enough that there may have been a live

case or controversy when the case was decided by the court whose

judgment we are reviewing"); United States Dep't of the Treasury v.

Galioto, 477 U.S. 556, 559-60 (1986) (concluding that when statute

was altered such that issues decided by court below were moot, the

Court must set aside the lower court's decision).

     D.H.L. attempts to bypass this precedent through reliance on

an exception to the mootness doctrine for situations in which the

defendant voluntarily ceases the challenged practice.  See City of

Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)

(holding that when an ordinance's revision became effective while

the case was pending in the court of appeals, the Court retained

jurisdiction over the question of the constitutionality of the

prior ordinance).  This exception applies, however, only when there

is a reasonable expectation that the challenged conduct will be

repeated following dismissal of the case.  See id. at 289 & n.11

(city had announced an intention to return to its original conduct

after the litigation was concluded); Northeastern Florida Chapter

of the Associated General Contractors v. Jacksonville, 508 U.S.

656, 662 & n.3 (1993) (challenged statute had not been sufficiently

altered to allow a conclusion that the conduct would not be

repeated).  In this case, the ordinance has been recast apparently

for the purpose of making it more likely to overcome constitutional

challenge and it has remained unchanged since 1996.  With no

indication of a contrary intent, it would be unreasonable to

presume that the Town would return to its prior zoning plans after

the conclusion of this litigation.  Thus, the voluntary-cessation

exception to the mootness doctrine is inapplicable here.

     D.H.L. makes an additional argument that the issue is not

moot, relying on a stipulation between the parties that if D.H.L.

had been issued an adult entertainment license in 1994, the license

would have been renewed automatically in subsequent years

regardless of alterations to the zoning code.  The critical flaw in

D.H.L.'s analysis is that even if we were to hold that the 1994

zone had been unconstitutional, such a ruling does not necessarily

lead to the conclusion that D.H.L. would have been granted a

license in 1994.  As D.H.L. appeared to acknowledge to the trial

court, the Town would have retained the ability, after a finding of

unconstitutionality, to review D.H.L.'s request and deny it for

another, legitimate reason.  An alternative scenario is that the

Town might have created a constitutional adult entertainment zone

before reviewing D.H.L.'s application for a license and could then

lawfully have refused it the license.  

     It is not for this court to speculate as to what might have

happened had the Town's statute been struck down before it was

superseded by the 1996 zoning ordinance now in effect.  Thus, the

stipulation between D.H.L. and the Town, that if D.H.L. had

received a license in 1994 it would have received a license every

year thereafter, does not entitle D.H.L. to a license in the first

instance.

       III.  Constitutionality of the 1996 Zoning Ordinance

     We thus turn to the constitutionality of Tyngsborough's 1996

zoning ordinance, currently in effect.  In reviewing an appeal from

an adverse ruling after a bench trial, we review the district

court's legal determinations de novo, "according a significant

amount of deference to the court's factual determinations and to

most of its resolutions of mixed fact/law issues."  Globe Newspaper

Co. v. Beacon Hill Architectural Comm'n, 100 F.3d 175, 181 (1st Cir.

1996).    Tyngsborough's 1996 zoning ordinance defines "adult

entertainment establishments" as including those providing live

entertainment "which consists of entertainers engaging in 'Sexual

Conduct' or 'Nudity.'" See Tyngsborough Zoning By-Laws  2.11.46. 

The ordinance restricts the location of such businesses to the B-4

zone.  See id.  2.10.00, 2.11.00. It also authorizes the board of

selectmen or the planning board to grant special use permits for

adult entertainment establishments.  See id.  1.16.00.

     Generally, "[t]he power of local governments to zone and

control land use is undoubtedly broad and its proper exercise is an

essential aspect of achieving a satisfactory quality of life in

both urban and rural communities."  Schad v. Mount Ephraim, 452

U.S. 61, 68 (1981).  Nevertheless, a town's zoning power "must be

exercised within constitutional limits."  Moore v. East Cleveland,

431 U.S. 494, 514 (1977) (Stevens, J., concurring).  As we have

articulated: "Freedom of speech is among the most precious of our

constitutional rights.  Thus, courts have long recognized that,

when governmental action places speech in special jeopardy, special

protections must apply."  National Amusements, Inc. v. Town of

Dedham, 43 F.3d 731, 736 (lst Cir. 1995).  

     A. Appropriate Level of Scrutiny

     We begin our analysis by noting that the activity which is

being restricted, nude dancing, is presumably constitutionally

protected speech.  The Supreme Court has described nude dancing as

"expressive conduct within the outer parameters of the First

Amendment, though . . . only marginally so."  Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion).

     We next determine what level of scrutiny we should apply to

the restriction on this constitutionally protected activity, which

correlates directly to whether the ordinance is content-based or

content-neutral.  An ordinance is not content-neutral if the

government has adopted it "'because of disagreement with the

message it conveys.'"  National Amusements, 43 F.3d at 737 (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Further, a

"regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect

on some speakers or messages but not others."  Ward, 491 U.S. at

791; see also Tollis Inc. v. San Bernadino County, 827 F.2d 1329,

1332 (9th Cir. 1987) ("[The content-neutral] requirement is met if

the involved ordinance is 'aimed to control secondary effects

resulting from the protected expression' rather than at inhibiting

the protected expression itself." (quoting International Food &

Beverage Sys. v. City of Fort Lauderdale, 794 F.2d 1520, 1525 (llth

Cir. 1986))).  

     In National Amusements, an ordinance that prohibited the

showing of motion pictures between 1:00 a.m. and 6:00 a.m. was

deemed to be content-neutral because it did not reference the

substance of the speech it regulated and did not appear to have

arisen as a means of suppressing a particular message.  See

National Amusements, 43 F.3d at 737-39.  The Court in Renton

grappled with an ordinance that prohibited adult motion picture

theaters from being located within 1000 feet of any residential

zone, family dwelling, church, park, or school, and concluded that

the ordinance, although it treated theaters that specialized in

adult films differently from other theaters, was content-neutral

because it was aimed not at the content of the films but rather at

the secondary effects of such theaters on the surrounding

community.  See  Renton, 475 U.S. at 47-49 (concluding that "at

least with respect to businesses that purvey sexually explicit

materials, zoning ordinances designed to combat the undesirable

secondary effects of such businesses are to be reviewed under the

standard applicable to 'content-neutral' time, place, and manner

restrictions" (footnotes omitted)).

     Thus, it is clear that an ordinance such as Tyngsborough's, if

aimed at combatting the secondary effects of nude dancing rather

than the content of the message expressed by nude dancing, is

content-neutral.  In determining whether the Tyngsborough ordinance

is aimed at secondary effects, we note that a town is "entitled to

rely on the experiences" of surrounding cities and towns: "The

First Amendment does not require a city, before enacting such an

ordinance, to conduct new studies or produce evidence independent

of that already generated by other cities, so long as whatever

evidence the city relies upon is reasonably believed to be relevant

to the problem that the city addresses."  Id. at 51-52 (holding

that ordinance was validly designed to serve the substantial

government interest of preserving the quality of urban life). 

Moreover, the Supreme Court has noted that a municipality's

interest in protecting and preserving quality of life "must be

accorded high respect."  See Young v. American Mini Theatres, Inc.,

427 U.S. 50, 71 (plurality opinion); see also Barnes, 501 U.S. at

583 (Souter, J., concurring) (stating that the interest of

government in "preventing prostitution, sexual assault, and other

criminal activity" is "plainly a substantial one").

     D.H.L. challenges Tyngsborough's assurance that the ordinance

was enacted to combat secondary effects and alleges that it did not

rely on any "studies" of secondary effects.  The district court,

however, found that the record showed a "reasoned basis for

evaluation of potential secondary effects as sufficiently likely to

occur and to involve significant consequences for community welfare

to justify the challenged zoning ordinance," even though such

evidence did not appear explicitly in town meeting minutes. 

Specifically, the court credited the testimony of John O'Gorman,

chairman of the board of selectmen, regarding his instruction to

the town administrator and the special town counsel, prior to the

enactment of the 1994 zoning ordinance, to gather information about

how other localities addressed adult entertainment and secondary

effects issues.  O'Gorman testified:

          I as the chairman of the Board of Selectmen instructed

     the town administrator along with special counsel to

     research all that they could with regard to adult

     entertainment, how it could be controlled, how it could

     be zoned, what other communities were doing, what other

     jurisdictions were doing with regard to adult

     entertainment. . . . [We did this to] learn as much as we

     could about adult entertainment and how it could be

     controlled, how it could be zoned within our community.



O'Gorman also testified that at the time of the 1994 zoning

changes, the Town was aware that the two clubs in town that

allegedly offered adult entertainment generated more police calls

than other clubs.  He stated that the public reaction to a

proliferation of unlicensed adult entertainment was "tremendous"

and many residents expressed great concern.

     The district court also noted that a document, prepared for

the 1994 special town meeting, evidenced public discussion prior to

the ordinance's enactment and that testimony substantiated the

Town's claim that it relied on its impression, supported to at

least some extent, that adult entertainment establishments placed

greater demands on police because more calls were generated from

those establishments.  See National Amusements, 43 F.3d at 742

(noting that legislatures may rely on evidence of past problems

with a particular activity and need not conduct an investigation to

corroborate each incident).  At the special town meeting, an open

forum was held to educate the public on methods of zoning adult

entertainment businesses and to allow citizens to express their

concerns about the secondary effects of these businesses. We

therefore conclude that the district court did not err in finding

that ordinance was designed to combat secondary effects and is

content-neutral.  We also note that although secondary effects were

more pointedly considered by the Town when enacting its 1994 zoning

ordinance, the discussions that took place at that time can

certainly be considered to pertain to the justifications of the

1996 modification of the zone.

     B.  The Application of the Renton Test

     Because the ordinance does not create an outright ban on adult

entertainment and was enacted to address the secondary effects of

adult entertainment rather than its content, it is a time, place,

and manner restriction.  See, e.g., Tollis, 827 F.2d at 1332 ("Like

the ordinance involved in Renton, the ordinance before us is

obviously a time, place, and manner regulation, as it does not ban

adult theaters altogether.").  As the Supreme Court explained in

Renton, the intermediate scrutiny test for determining the

constitutionality of a content-neutral time, place, and manner

zoning restriction on adult entertainment is whether the ordinance

is narrowly tailored "to serve a substantial government interest

and allows for reasonable alternative avenues of communication." 

See Renton, 475 U.S. at 50 (citing Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 293 (1984)).

          1.  Narrowly Tailored to Serve a Substantial Government 

          Interest



     We have already determined that Tyngsborough considered

secondary effects when it created the B-4 zone.  We have also

explained that a municipality's concern about secondary effects is

a substantial government interest.  Finally, to determine whether

the ordinance fully satisfies the first prong of the Renton test,

we must determine whether Tyngsborough's ordinance is sufficiently

narrowly tailored to meet its interest.

     A content-neutral time, place, and manner restriction is

narrowly tailored if it "'promotes a substantial government

interest that would be achieved less effectively absent the

regulation.'" Ward, 491 U.S. at 799 (quoting United States v.

Albertini, 472 U.S. 675, 689 (1985)).  In Renton, the Court held

that the ordinance was narrowly tailored because it "affect[ed]

only that category of theaters shown to produce the unwanted

secondary effects."  Renton, 475 U.S. at 52.  In the instant case,

Tyngsborough's ordinance, which applies directly to adult

entertainment providers, does not reach other forms of

entertainment.  Further, Tyngsborough's use of a zoning mechanism

to restrict such an activity confines the impact of the restriction

to governance of the location of such activity and does not impact

other aspects of the activity.  Thus, the ordinance is sufficiently

narrowly tailored to address the Town's substantial interest in

combatting the secondary effects of adult entertainment.

          2.  Reasonable Alternative Avenues of Communication

     Moving to the second prong of the Renton test, we evaluate

whether Tyngsborough's ordinance allows reasonable alternative

methods of communication.  The essence of this question is not

"whether a degree of curtailment" of speech exists, but rather

"whether the remaining communicative avenues are adequate." 

National Amusements, 43 F.3d at 745 (holding that the limitations

created by an ordinance were not unconstitutional because the

challenger's evidence "does not call into legitimate question the

adequacy of the alternate route of communication").  D.H.L. alleges

that the Tyngsborough ordinance does not provide it with a

reasonable opportunity to open and operate, relying heavily on the

fact that only .09867% of the land within the town's borders has

been designated as the B-4 zone.  D.H.L. contends that even if the

owner of the B-4 lots were willing to sell the land to an adult

entertainment establishment, which D.H.L. contends the owner is not

willing to do, such a small percentage of land does not constitute

a reasonable opportunity.  

     D.H.L. misses the mark, however, in emphasizing this single

factor.  As the district court recognized, determining whether

Tyngsborough's ordinance provides a reasonable opportunity for

adult business to open and operate requires an evaluation of

multiple factors.  See, e.g., 3570 East Foothill Blvd., Inc. v.

City of Pasadena, 912 F. Supp. 1257, 1265 (C.D. Cal. 1995)

("[C]ourts have looked to a variety of relevant factors, including

the percentage of land theoretically available to adult businesses,

the number of sites potentially available in relation to the

population of the city, the number of sites compared with the

existing number of adult businesses, or the number of businesses

desiring to offer adult entertainment.").  Thus, the fact that

Tyngsborough allocated only 10.4 acres of its 10,540 acres to the

B-4 zone is relevant but not dispositive.  As the Court of Appeals

for the Fifth Circuit has held, "[t]here is no requirement in

Renton . . . or elsewhere that a specific proportion of a

municipality be open for adult businesses or that a certain number

of sites be available."  Lakeland Lounge v. City of Jackson,

Mississippi, 973 F.2d 1255, 1260 (5th Cir. 1992); see also North

Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.

1996) (stating that "acreage, standing alone, is largely

irrelevant").

     Because there is no single dispositive evaluative

consideration, an analysis should encompass a variety of factors,

including the percentage of acreage within the zone compared to the

acreage available to commercial enterprises in general.  As the

district court noted, "Tyngsborough is a rural town in which the

total acreage in the only commercial district that could properly

be identified as the principal business district occupies very

little of Tyngsborough's total acreage."  

     The number of sites available to adult entertainment

businesses is also relevant.  See International Eateries of

America, Inc. v. Broward County, Florida, 941 F.2d 1157, 1165 (11th

Cir. 1991).  Reasonable alternative avenues for communication have

been found to exist when six adult businesses were operating in a

town and more than six sites existed in the zoned area.  See

Lakeland Lounge, 973 F.2d at 1260 ("As a matter of arithmetic, . .

. there are more 'reasonable' sites available than businesses with

demands for them . . . .").

     In this case, the district court held that all of the five

lots in the B-4 zone were potentially available, crediting the

testimony of Walter Eriksen, owner of the land within the B-4 zone,

that although he had delayed placing the lots on the market in

hopes that they would increase in value, they were now available to

any purchaser for the right price.  Despite D.H.L.'s protestations

that the cost of development would be too high, Renton instructs

that D.H.L.'s protection extends only so far as to put adult

entertainment providers on an equal footing with other purchasers

and does not require that they be able to obtain sites "at bargain

prices."  See Renton, 475 U.S. at 54 ("That respondents must fend

for themselves in a real estate market, on an equal footing with

other prospective purchasers and lessees, does not give rise to a

First Amendment violation.").

     Because we agree that all of the lots in the B-4 zone are

potentially available and other relevant factors do not negate the

significance of this availability, we hold that Tyngsborough

ordinance provides the constitutionally mandated "reasonable

opportunity to open and operate."  We note that one other

establishment, the "Blue Moon," has lawfully offered adult

entertainment in Tyngsborough since before the enactment of the

1987 zoning ordinance and thus has a right to continue operating

despite the fact that it is not located in the B-4 zone.  Although

the Blue Moon operates on a grandfather permit, even if it were to

be required to move into the B-4 zone, which it is not, that would

leave five sites for two businesses.  

     Moreover, each of the five lots, as stipulated by the parties,

is suitable for development and has gas, water, and electrical

lines available.  The sites are accessible to the public as they

are located in a commercial park with newly developed roadways. 

Although the parties have not supplied us with data about the

number of businesses that would like to offer adult entertainment,

we have not been shown that any business except D.H.L. has been

denied an adult entertainment permit since the enactment of the

1996 zone.  For these reasons, we hold that Tyngsborough's

ordinance provides D.H.L., and other businesses wishing to offer

adult entertainment, with a reasonable alternative avenue for

communicating their constitutionally protected speech.

                        IV.  Certification

     On a final note, we address very briefly D.H.L.'s argument

that the district court erred by declining to certify state law

questions to state court prior to determining the federal

constitutional issues.  Because we are not convinced that state law

provides an independent and sufficient basis for deciding the case,

we conclude that the district court did not err by remanding the

case to state court for determination of D.H.L.'s remaining state

law claims after its adjudication of the federal issues.

     In conclusion, because we hold that the constitutionality of

the 1987 and 1994 Tyngsborough zoning ordinances is moot and the

existing ordinance is constitutional, the judgment of the district

court is affirmed.