Case: 16-17176 Date Filed: 08/10/2018 Page: 1 of 27
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-17176 ________________________
D.C. Docket No. 1:14-cv-03534-ELR
STARDUST, 3007 LLC, d.b.a. Stardust, MICHAEL MORRISON,
Plaintiffs - Counter Defendants - Appellants,
versus
CITY OF BROOKHAVEN, GEORGIA, SUSAN CANON, individually and in her official capacity as Director of Community Development,
Defendants - Counter Claimants - Appellees.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________ (August 10, 2018) Case: 16-17176 Date Filed: 08/10/2018 Page: 2 of 27
Before WILLIAM PRYOR, JILL PRYOR and CLEVENGER, ∗ Circuit Judges.
JILL PRYOR, Circuit Judge:
The City of Brookhaven passed an ordinance regulating adult businesses for
the stated purpose of preventing the negative secondary effects of such businesses.
Stardust, 3007 LLC—a purveyor of products subject to the City’s ordinance—and
Stardust’s manager, Michael Morrison (collectively “Stardust”), brought suit in
federal district court, claiming that the ordinance and the City’s implementation of
it violates the United States Constitution. The district court granted summary
judgment to the City. 1 On appeal, Stardust argues: (1) the ordinance
impermissibly restricts Stardust’s constitutionally protected speech; (2) the
ordinance is unconstitutionally vague, in violation of due process; (3) the City’s
enforcement of the ordinance violates Stardust’s equal protection rights; and (4)
the ordinance impermissibly infringes on individuals’ substantive due process right
to intimate sexual activity. After careful review, and with the benefit of oral
argument, we affirm.
∗ Honorable Raymond C. Clevenger III, United States Circuit Judge for the Federal Circuit Court of Appeals, sitting by designation. 1 The district court also granted summary judgment to Susan Canon, individually and in her official capacity as the Director of Community Development. For purposes of this opinion, however, we will refer to the City only. 2 Case: 16-17176 Date Filed: 08/10/2018 Page: 3 of 27
I. BACKGROUND
A. The City’s Sexually Oriented Business Code
The City of Brookhaven was incorporated in December 2012. In January
2013, it enacted a code to “regulate sexually oriented businesses in order to
promote the health, safety, and general welfare of the citizens of the City, and to
establish reasonable and uniform regulations to prevent the deleterious secondary
effects of sexually oriented businesses within the City.” Doc. 5-2 at 3. 2 The Code
regulates various types of adult businesses, which it refers to as “[s]exually
[o]riented [b]usiness[es],” including, as relevant to this appeal, “sexual device
shop[s].” Id. at 9. The Code, as amended in May 2013, defines a “[s]exual
[d]evice shop” as “a commercial establishment that regularly features sexual
devices. This definition shall not be construed to include any pharmacy, drug
store, medical clinic, or any establishment primarily dedicated to providing
medical or healthcare products or services.” Doc. 5-3 at 2-3. A “[s]exual
[d]evice” is defined in part as “any three (3) dimensional object designed for
stimulation of the male or female human genitals, anus, buttocks, female breast, or
for sadomasochistic use or abuse of oneself or others.” Doc. 5-2 at 9. The Code
defines “[r]egularly” to mean “the consistent and repeated doing of an act on an
2 All citations to “Doc #” refer to the numbered district court docket entries.
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ongoing basis,” id. at 8, and “[f]eature” to mean “to give special prominence to,”
doc. 5-3 at 2.
The Code does not ban sexually oriented businesses; rather, it sets up a
licensing system for these businesses and their employees, requires sexually
oriented businesses to submit to inspections, and sets requirements for, among
other things, lighting, signs, and hours of operation. Under its “Spacing
Requirements” provision, added in May 2013, the Code makes it unlawful to
operate a sexually oriented business “within 100 feet of another sexually oriented
business” or “within 300 feet of a residential district, place of worship, park, or
public library.” Id. at 3. There are 73 locations in the City where a licensed
sexually oriented business could operate in compliance with these spacing
requirements.
B. Stardust’s Operation
Shortly after the City’s incorporation and enactment of the Code, Stardust
opened a retail store in the City. In February 2013, Stardust applied for an
occupation tax certificate, as required by Article II of Chapter 15 of the Code of
the City of Brookhaven. On the application form, Stardust described its business
as “Retail—Smoke Shop, Tobacco; related accessories; gifts.” Doc. 5-8 at 2.
Stardust denied in its application that it would operate a sexually oriented business
as defined by the Code.
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In April 2013, Stardust sent a letter notifying the City that Stardust planned
to include, “as a non-principle [sic] business activity,” merchandise covered by the
Code. Doc. 63-22 at 1. According to the letter, the part of the store containing
these items would “occupy less than 500 sq. ft. of floor space, and constitute less
than 35% of . . . displayed merchandise.” Id. Stardust inquired whether it was
required to amend its business license to “list these goods” or whether its current
business license was sufficient. Id. The City apparently did not respond to the
letter, and Stardust began selling sexual devices in late April 2013.
Located across the street from the Stardust store was a residential area, and
located next to Stardust was Pink Pony, an adult entertainment club that qualified
as a sexually oriented business under the Code. 3 Pink Pony had been operating at
that location since 1990. Following the City’s incorporation and the passing of the
Code, Pink Pony sued the City over the Code and alcohol licensing issues. See
Trop, Inc. v. City of Brookhaven, 764 S.E.2d 398, 400-02 (Ga. 2014) (concluding
that the Code did not violate Pink Pony’s right to free speech by “separating
alcohol from adult entertainment” (internal quotation marks omitted)). As a result
of the litigation, Pink Pony entered into an exit agreement with the City that
required Pink Pony to relocate within a certain number of years. In addition, Pink
Pony agreed to pay for additional law enforcement to patrol the area around its
3 Pink Pony was an “[a]dult [c]abaret” under the Code. Doc. 5-2 at 7. 5 Case: 16-17176 Date Filed: 08/10/2018 Page: 6 of 27
building to combat any negative secondary effects of its business and to ensure that
its permits and licensing were up to date.
In June 2013, the City began ticketing Stardust for (1) operating a sexually
oriented business without a license, (2) operating a sexually oriented business
within 100 feet of another sexually oriented business, (3) operating a sexually
oriented business within 300 feet of a residential zone, and (4) failing to identify its
line of business on its occupation tax certificate.
On multiple occasions, the City’s code enforcement officers visited the
Stardust store and identified merchandise that qualified as sexual devices. For
example, the Brookhaven Code Enforcement Manager visited Stardust “dozens” of
times between November 2013 and August 2014. Doc. 5-11 at 1. During two of
those visits, she photographed products she believed to be sexual devices, and she
testified that those products were the “same sort of items [she] saw on display
every time” she went inside the store. Id.
In May 2015, another code enforcement officer counted over 1,500 alleged
sexual devices in the Stardust store. The store contained three rooms, one in the
front, and two—one large, one small—in the back. The officer counted well over
1,000 items in the larger back room, which she identified as the sexual device
room. The smaller back room, according to the officer, contained 29 sexual
devices, and the front room contained 88 such devices. Although Stardust
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admitted that it “stock[ed] and display[ed] a number of sexual devices,” it disputed
that all of the items documented by the City qualified as sexual devices under the
Code. Doc. 77-1 at 22.
C. Litigation Between the Parties
The City brought a 255-count accusation against Stardust in Brookhaven
Municipal Court in early 2014, alleging Code violations. Stardust raised
constitutional defenses to the charges, and in July 2014 it filed a civil suit in the
Superior Court of DeKalb County, Georgia, seeking to enjoin enforcement of the
Code on the grounds that it violated provisions of the United States and Georgia
Constitutions.
Several months after filing suit in state court, in November 2014 Stardust
filed suit against the City in federal district court, challenging the City’s denial of
Stardust’s application for a sign permit as violating Stardust’s rights under the
United States and Georgia Constitutions. The City counterclaimed, seeking
injunctive relief requiring Stardust to cease operating a sexual device shop.4 In
response, Stardust filed an amended complaint raising the claims at issue in this
appeal. The district court granted the City’s motion for summary judgment on
September 29, 2016, and Stardust appealed.
4 The City’s asserted reason for denying Stardust’s sign application was that Stardust was operating unlawfully as an unlicensed sexually oriented business. 7 Case: 16-17176 Date Filed: 08/10/2018 Page: 8 of 27
While this appeal was pending, on May 22, 2017, the superior court entered
a permanent injunction against Stardust in the state court action, ordering it to
cease operating a sexual device shop in violation of the Code. The Supreme Court
of Georgia affirmed without opinion.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment,
construing the facts and all reasonable inferences from the facts in favor of the
nonmoving party. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir.
2015). Summary judgment is appropriate when there is “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “Speculation does not create a genuine issue of fact; instead, it
creates a false issue, the demolition of which is a primary goal of summary
judgment.” Cordoba v. Dillards, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)
(internal quotation marks omitted).
III. PRECLUSION
Before discussing the merits of Stardust’s appeal, we address the impact of
the state court litigation on our analysis. Specifically, we consider whether the
doctrine of res judicata precludes any of Stardust’s claims. “The general principle
of res judicata prevents the relitigation of issues and claims already decided by a
competent court. Once a party has fought out a matter in litigation with the other
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party, he cannot later renew that duel.” Comm. State Bank v. Strong, 651 F.3d
1241, 1263 (11th Cir. 2011) (internal quotation marks omitted). The enforcement
of res judicata principles “is essential to the maintenance of social order; for the aid
of judicial tribunals would not be invoked for the vindication of rights of person
and property if, as between parties and their privies, conclusiveness did not attend
the judgment of such tribunals in respect of all matters properly put in issue, and
actually determined by them.” S. Pac. Ry. Co. v. United States, 168 U.S. 1, 49
(1897). “Res judicata comes in two forms: claim preclusion . . . and issue
preclusion . . . .” Comm. State Bank, 651 F.3d at 1263. Because the distinction
between claim preclusion and issue preclusion makes no difference for our
purposes, we refer to both or either simply as “res judicata.”
At first blush, it might appear that res judicata bars this action because in the
state court action the Georgia courts adjudicated Stardust’s claims regarding the
constitutionality of the Code and the City’s enforcement of it and decided the
identical issues before us today. Before deciding whether we should apply the
principles of res judicata, however, we must consider the nature of the Superior
Court of DeKalb County’s order and the Supreme Court of Georgia’s summary
affirmance. The superior court rejected Stardust’s claims that the City had violated
its rights under the United States and Georgia Constitutions. On Stardust’s federal
constitutional claims, the superior court held, based on the federal district court’s
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September 29, 2016 order granting summary judgment to the City, that those
claims were barred by the doctrine of res judicata. As to Stardust’s claims based
on Georgia’s Constitution, the superior court issued alternative rulings. First, the
superior court held that because the federal district court had found no violation of
the United States Constitution—and because the Georgia constitutional provisions
at issue were identical to the federal constitutional provisions—it was bound to
rule in the City’s favor based on doctrine of res judicata. Second, the superior
court held, in the alternative, that Stardust’s claims failed on the merits.5 The
Supreme Court of Georgia affirmed the superior court’s order without an opinion.
The Supreme Court of Georgia’s summary affirmance was issued pursuant
to Georgia Supreme Court Rule 59. Although a Rule 59 affirmance may be
afforded preclusive effect, see Rolleston Living Tr. v. Kennedy, 591 S.E.2d 834,
835 (Ga. 2004), we cannot know the grounds on which the Supreme Court
affirmed the superior court’s decision, see Ga. Sup. Ct. R. 59 (“An affirmance
without opinion may be rendered in any civil case when the Court determines . . .
[there was] [n]o harmful error of law, properly raised and requiring reversal.”).
Given the superior court’s alternative rulings, the Supreme Court may have
affirmed the superior court’s holding that Stardust’s claims failed on the merits.
5 In reaching the merits, the superior court relied heavily on the federal district court’s reasoning regarding the federal constitutional claims. 10 Case: 16-17176 Date Filed: 08/10/2018 Page: 11 of 27
Alternatively, it may have rejected that holding, affirming only on the ground that
the doctrine of res judicata barred Stardust’s claims.
The possibility that the Supreme Court of Georgia affirmed on the ground
that it was bound by the federal district court’s decision in the instant litigation
rather than on the merits prevents us from now holding that we, in turn, are bound
by the Supreme Court’s decision. The fact that the district court’s judgment was
pending appeal in this court does not mean the superior court erred in applying res
judicata to Stardust’s claims in state court based on that judgment. See Jaffree v.
Wallace, 837 F.2d 1461, 1467 (11th Cir. 1998) (explaining that under federal
common law, “a final judgment retains all of its res judicata consequences pending
decision of the appeal” (internal quotation marks omitted)). Here, though, we are
presented with a unique circumstance in which we as an appeals court are being
asked to forgo direct review of a district court’s judgment because another court
decided it was bound to give that judgment preclusive effect. We conclude that, in
this particular circumstance, res judicata does not bar the claims on appeal. To
hold otherwise, as the First Circuit has said, would be “obviously circular and
unfair.” In re Kane, 254 F.3d 325, 329 (1st Cir. 2001).
Our court has never addressed this circumstance, but the Ninth Circuit has
concluded that “the doctrine of res judicata does not operate to bar direct review of
a district court judgment, even if that judgment has been accorded res judicata
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effect by other courts since it was entered.” Orion Tire Corp. v. Goodyear Tire &
Rubber Co., 268 F.3d 1133, 1136 (9th Cir. 2001). A contrary rule would “turn[]
res judicata on its head” because the “[t]he doctrine is founded on the principle that
‘[a] judgment merely voidable because based upon an erroneous view of the law is
not open to collateral attack, but can be corrected only by a direct review.’” Id.
(alteration in original) (quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S.
394, 399 (1981)).
Direct review of the district court’s judgment is what Stardust now seeks;
therefore, res judicata does not bar us from considering Stardust’s appeal. See In
re Kane, 254 F.3d at 330 (“Direct review of the erroneous original decision cannot
be precluded because, in the meantime, the original court has repeated the error in
the same case or other courts have adopted it by cross reference.”); Alpha Epsilon
Phi Tau Chapter Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 843 n.3 (9th Cir.
1997) (explaining, in an opinion authored by Supreme Court Justice Byron R.
White, that when a state court ruling was based on the res judicata effect of the
district court’s decision, the federal appeals court nonetheless could review the
district court’s judgment); McLaughlin v. Alban, 775 F.2d 389, 391 (D.C. Cir.
1985) (declining to afford preclusive effect to judgments that “relied wholly on the
preclusive effect of decisions by the trial court in the instant case”). We agree with
our sister circuits that it would make no sense for an appeal from a district court
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order or judgment to be precluded simply because another court treated the order
or judgment as having preclusive effect. We conclude that res judicata does not
preclude Stardust from litigating its claims in this appeal, and thus we turn to the
merits of those claims.
IV. DISCUSSION
On appeal, Stardust challenges the district court’s grant of summary
judgment to the City, arguing that its constitutional rights have been violated
because: (1) the Code impermissibly restricts Stardust’s right to free speech;
(2) the Code’s definition of “sexual device shop” is void for vagueness; (3) the
City’s enforcement of the Code violates Stardust’s right to equal protection; and
(4) the Code impermissibly infringes on an individual substantive due process right
to intimate sexual activity. We will address each argument in turn.
A. The Code Imposes No Impermissible Restriction on Stardust’s Freedom of Speech.
Stardust argues that the Code is unconstitutional under the Constitution’s
First Amendment because it operates as an impermissible restriction on Stardust’s
constitutionally protected commercial speech. Specifically, Stardust challenges the
definition of sexual device shop as a commercial establishment that “regularly
features” sexual devices. Doc. 5-3 at 2. We conclude, however, that the Code’s
definition of sexual device shop does not unconstitutionally restrict Stardust’s
freedom of speech. 13 Case: 16-17176 Date Filed: 08/10/2018 Page: 14 of 27
Before we consider whether the Code’s definition of sexual device shop
offends the First Amendment, we first must decide what it means to “regularly
feature[]” sexual devices. According to Stardust, because the Code defines
“regularly featur[ing]” sexual devices as regularly “giv[ing] special prominence to”
those devices, whether a store falls within the Code’s definition of sexual device
shop depends on the manner in which the store displays its merchandise. The City
disputes that the Code regulates “how one may display sexual devices in a
commercial establishment.” Appellee’s Br. at 11 (internal quotation marks
omitted). Although the question is a close one, we agree with Stardust.
Stardust’s interpretation of the meaning of “regularly features” finds support
in the Code’s text. The Code defines another type of sexually oriented business, an
“[a]dult [b]ookstore or [a]dult [v]ideo [s]tore,” as an establishment that, as one of
its “principal business activities,” offers for sale or rental certain listed items. Doc.
5-2 at 6. A “principal business activity” exists where one of several factors is met,
including “[a]t least 35% of the establishment’s displayed merchandise consists of
said items,” “[t]he establishment maintains at least 35% of its floor space for the
display, sale, and/or rental of said items,” “[t]he establishment maintains at least
five hundred square feet . . . of its floor space for the display, sale, and/or rental of
said items,” or “[t]he establishment regularly features said items.” Id. By
including “regularly features” as one of these alternatives, the Code’s definition of
14 Case: 16-17176 Date Filed: 08/10/2018 Page: 15 of 27
“principal business activity” suggests that “regularly features” must mean
something other than the number of items, percentage of inventory, or amount of
floor space, because other listed alternatives define “principal business activity”
based on those factors. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A statute
should be constructed so that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant . . . .” (internal quotation marks
omitted)).
We acknowledge that the canon of noscitur a sociis, “which holds that a
word is known by the company it keeps,” Babbit v. Sweet Home Chapter of Cmtys.
for a Great Or., 515 U.S. 687, 694 (1995), may suggest a contrary interpretation.
Specifically, application of this canon may indicate that “regularly features”—like
percentage of inventory or amount of floor space—refers to a quantifiable amount
of stocked merchandise rather than to a restriction on the manner in which the store
displays its merchandise. But the Code states that “there is documented evidence
of sexually oriented businesses, including adult bookstores and adult video stores,
manipulating their inventory and/or business practices to avoid regulation while
retaining their essentially ‘adult’ nature.” Doc. 5-2 at 1. In context, then, applying
the canon of noscitur a sociis would be inconsistent with the expressed intent of
the Code’s drafters to regulate adult businesses that are not captured by
quantifiable caps on inventory and floor space. We therefore conclude that the
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Code’s definition of sexual device shop turns not only on the store’s stocking and
selling of certain products, but also on its display and arrangement of those
products.
Having decided that the Code defines sexual device shop with reference to a
store’s manner of displaying and arranging products, we must decide whether a
restriction based on product display and arrangement offends the First
Amendment. As an initial matter, neither the United States Supreme Court nor this
court has ever held that a business has a free speech interest in the display and
arrangement of commercial products, let alone that regulation of such activity
might violate the First Amendment. The Supreme Court has assumed that such an
interest exists, however, concluding under the facts before it that an ordinance
requiring tobacco products to be placed behind counters nonetheless satisfied the
First Amendment. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569 (2001)
(“Assuming that petitioners have a cognizable speech interest in a particular means
of displaying their products, these regulations withstand First Amendment
scrutiny.” (citation omitted)). We follow the same approach and assume, for our
purposes here, that the Code’s definition of sexual device shop implicates the First
Amendment.
Of course, not all laws implicating the First Amendment are
unconstitutional. A zoning ordinance designed to regulate the negative secondary
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effects of adult businesses, “justified without reference to the content of the
regulated speech,” is considered a content neutral time, place, and manner
restriction. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986)
(internal quotation marks omitted). Despite its incidental impact on free speech,
such an ordinance complies with the First Amendment if it is designed to serve a
substantial government interest and leaves open alternative avenues of
communication. Id. at 50. 6
The Code represents a time, place, and manner restriction that regulates
where and when adult businesses may operate. Further, the City has a substantial
interest, unrelated to the content of the speech at issue, in regulating negative
secondary effects of adult businesses. See id. (“[A] city’s interest in attempting to
preserve the quality of urban life is one that must be accorded high respect.”
(internal quotation marks omitted)).
We thus consider only whether the Code is designed to serve that interest
and whether it leaves open alternative avenues of communication. As to the first
6 In Lorillard Tobacco Co., the Supreme Court analyzed the constitutionality of a restriction on the manner of product display in a commercial establishment under the test the Court has applied “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct” and the government has an interest in “regulating the nonspeech element.” United States v. O’Brien, 391 U.S. 367, 376, 382 (1968); see Lorillard Tobacco Co., 533 U.S. at 569. Neither party argues that O’Brien is applicable here, however. Stardust argues instead that the Supreme Court’s test for commercial speech applies. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980). O’Brien, Central Hudson, and Renton each require intermediate scrutiny and a consideration of similar elements. Thus, under any of these tests, our analysis would be similar and our conclusion would be the same. 17 Case: 16-17176 Date Filed: 08/10/2018 Page: 18 of 27
consideration, the City must point to specific evidence it relied upon when drafting
the Code that supports the conclusion that the Code advances its interest in
preventing negative secondary effects. See Peek-A-Boo Lounge of Bradenton, Inc.
v. Manatee Cty. (Peek-A-Boo II), 630 F.3d 1346, 1355 (11th Cir. 2011). If the City
meets this burden, the “burden shifts to [Stardust] to cast direct doubt on this
rationale.” Id. (internal quotation marks omitted).
When drafting the Code the City relied on—and cited—dozens of studies
and cases linking the operation of adult businesses to negative secondary effects.
This evidence is sufficient to establish that the Code, in general, advances the
City’s legitimate interest in regulating those effects. We next ask a more nuanced
question—whether, on the record before us, the City has met its burden to show
that its particular definition of sexual device shop furthers its interest in avoiding
the secondary effects of adult businesses. In drafting the Code, the City was
entitled to rely on evidence “reasonably believed to be relevant.” Renton, 475 U.S.
at 51-52. Here, as the district court noted, the City relied on specific case
examples of adult businesses “manipulating their inventory . . . to avoid
regulation.” Doc. 5-2 at 1.
For example, the Code cites a case in which the Texas Court of Appeals
upheld a jury’s determination that the defendant operated a “sexually-oriented
enterprise” without a license. Taylor v. State, No. 01-01-00505, 2002 WL
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1722154, at *1-*4 (Tex. Ct. App. July 25, 2002). Although the majority of
merchandise in the store was non-adult, id. at *3, investigating officers testified
that they never saw any customers in the non-adult section of the store, id. at *4.
Additionally, some of the non-adult videos had cobwebs, but the adult videos were
“newly packaged and . . . not covered with cobwebs.” Id. The Code’s definition
of sexual device shop may help prevent the kind of manipulation that occurred in
Taylor and which the Code intends to regulate. 7 See Doc. 5-2 at 1-2 (citing to
Taylor and other cases as justification for the City’s intention to regulate
businesses that “manipulate[] their inventory . . . while retaining their essentially
‘adult’ nature”). Because the City “has produced evidence that it reasonably
believed to be relevant to its rationale,” Peek-a-Boo II, 630 F.3d at 1357, the City
has met its burden of showing that the definition of sexual device shop furthers its
interest in regulating the secondary effects of adult businesses. The burden thus
shifts to Stardust to “cast direct doubt on the [City’s] rationale, either by showing
that the [City’s] evidence does not actually support its rationale or by producing
evidence disputing the [City’s] factual findings.” Id. Stardust has failed to do so.
This case is unlike Peek-A-Boo Lounge of Bradenton, Inc., v. Manatee
County (Peek-A-Boo I), 337 F.3d 1251, 1270 (11th Cir. 2003), for example, where
we concluded that the plaintiffs had produced sufficient evidence to “cast direct
7 We do not suggest that Stardust engaged in such manipulation. 19 Case: 16-17176 Date Filed: 08/10/2018 Page: 20 of 27
doubt” on the challenged ordinance. In that case, the plaintiffs had submitted
satisfactory health and safety reports, incident reports showing that crime rates
were lower near their businesses than in other areas, data revealing an increase in
property values near the plaintiffs’ businesses, an award given to one plaintiff by
the County Sheriff for its contribution to the community, and three expert studies
disputing the County’s evidence and rationale. Id. We held that summary
judgment was inappropriate and “the burden shift[ed] back to the municipality to
supplement the record with evidence renewing support for a theory that justifie[d]
its ordinance.” Id. at 1272 (internal quotation marks omitted).
Unlike the plaintiffs in Peek-A-Boo I, Stardust has presented no evidence
disputing the City’s rationale or factual findings. Instead, Stardust relies on
rhetorical questions, asking, for example, “Who is harmed by a retail store
advertising—inside its premises—sexual devices in a way that ‘gives special
prominence to’ them?” Appellant’s Br. at 17. This kind of speculative reasoning
is insufficient to survive summary judgment. See Cordoba, 419 F.3d at 1181.
Stardust also argues that the Code’s definition of sexual device shop is
underinclusive because it exempts pharmacies and establishments primarily
dedicated to healthcare products, and those establishments may cause the same
negative secondary effects the Code intends to regulate. According to Stardust, the
underinclusive nature of the definition undercuts the City’s justification for its
20 Case: 16-17176 Date Filed: 08/10/2018 Page: 21 of 27
definition of sexual device shop. But there is no evidence in the record that any
Brookhaven pharmacies or other establishments primarily dedicated to healthcare
products regularly feature sexual devices or cause negative secondary effects. The
City is entitled to amend the Code if and when it learns that establishments falling
within the healthcare exception are regularly featuring sexual devices and bringing
about negative secondary effects. See Renton, 475 U.S. at 52-53 (rejecting an
argument that an ordinance regulating adult theaters was underinclusive because it
did not regulate other types of adult establishments, where there was no evidence
that other adult businesses were located in the city, and noting that the city could,
in the future, “amend its ordinance to include other kinds of adult businesses that
have been shown to produce the same kinds of secondary effects as adult
theaters”).
We now turn to the final consideration under Renton—whether the Code
leaves open sufficient alternative avenues of communication. “A new zoning
regime must leave adult businesses with a reasonable opportunity to relocate, and
the number of sites available for adult businesses . . . must be greater than or equal
to the number of adult businesses in existence at the time the new zoning regime
takes effect.” Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860, 871
(11th Cir. 2007) (internal quotation marks omitted).
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The record establishes that the City has, at most, two adult businesses,
Stardust and Pink Pony. The City has identified 73 sites inside its city limits where
a licensed sexually oriented business could operate. The number of sites—which
Stardust does not dispute on appeal—is far greater than the number of adult
businesses. And Stardust does not argue that some reason other than the number of
compliant locations prevents it from relocating. The Code therefore leaves opens
sufficient alternative avenues of communication to meet the Renton test. See id. at
871-72 (concluding that the existence of 24 sites in the district was sufficient for
First Amendment purposes and noting that whether the property was in fact
available for sale or development was irrelevant).
“A zoning measure can be consistent with the First Amendment if it is likely
to cause a significant decrease in secondary effects and a trivial decrease in the
quantity of speech.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425,
445 (2002) (Kennedy, J., concurring in the judgment). 8 The Code is such a zoning
measure; it does not impermissibly infringe Stardust’s First Amendment right to
display and arrange its products.
B. The Code Is Not Unconstitutionally Vague.
8 “There was no majority opinion in Alameda Books, but because Justice Kennedy’s concurrence reached the judgment on the narrowest grounds, his opinion represents the Supreme Court’s holding in that case.” Peek-A-Boo II, 630 F.3d at 1354 n.7. 22 Case: 16-17176 Date Filed: 08/10/2018 Page: 23 of 27
Stardust next argues that two phrases in the Code are impermissibly vague,
in violation of the Due Process Clause of the Fourteenth Amendment. First, it
argues that the phrase “establishment primarily dedicated to healthcare products” is
unconstitutionally vague because a reasonable person could not know what it
means to be “primarily dedicated” to such products. Second, it argues that the
term “[f]eature,” which is defined in the Code to mean “to give special prominence
to,” is also impermissibly vague.
The Constitution does not require perfect clarity in the language of statutes
and ordinances. “All . . . due process . . . requires is fair notice . . . sufficient to
enable persons of ordinary intelligence to avoid conduct which the law forbids.”
High Ol’Times, Inc. v. Busbee, 673 F.2d 1225, 1229 (11th Cir. 1982). To succeed
on a claim that an ordinance is void for vagueness, “the complainant must
demonstrate that the law is impermissibly vague in all of its applications.” Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982). A
corollary of this rule is that “[a] plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the
conduct of others.” Id. at 495.
On this record, Stardust lacks a genuine question regarding whether its
business is “primarily dedicated to healthcare products.” Likewise, whether
“special prominence” turns on number, variety, or arrangement and display of
23 Case: 16-17176 Date Filed: 08/10/2018 Page: 24 of 27
sexual devices, “persons of ordinary intelligence,” could recognize that Stardust
gave special prominence to sexual devices in its store. High Ol’ Times, Inc.,
673 F.2d at 1229. Indeed, Stardust displayed hundreds of different types of sexual
devices in its store, devoting to them an entire room plus space in other rooms.
The district court therefore correctly concluded that Stardust’s vagueness challenge
fails because its operation clearly falls within the zone of prohibited conduct. See
Vill. of Hoffman Estates, Inc., 455 U.S. at 495.
C. The City’s Enforcement of the Code Does Not Violate Stardust’s Right to Equal Protection.
Stardust also argues that its right to equal protection under the Fourteenth
Amendment was violated because the City has allowed Pink Pony—also a sexually
oriented business operating within 100 feet of another sexually oriented business—
to continue to operate while the City has continued to issue citations to Stardust.
The Supreme Court has recognized this kind of “class of one” equal protection
claim in which a party “alleges that [it] has been intentionally treated differently
from others similarly situated and that there is no rational basis for the difference
in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). This court
has held that the plaintiff and the comparator were not similarly situated where,
although both companies “had received high pollutant readings,” only the
comparator had alerted the Environmental Protection Division to the problem and
24 Case: 16-17176 Date Filed: 08/10/2018 Page: 25 of 27
voluntarily cooperated with remediation efforts. Griffin Indus., Inc. v. Irvin, 496
F.3d 1189, 1206 (11th Cir. 2007).
Stardust has not demonstrated that it is similarly situated to Pink Pony.
Stardust argues that Pink Pony is a similarly situated business because it also is a
sexually oriented business and both businesses were in existence when the City
added the spacing requirements to the Code. But Stardust ignores relevant
differences between the two establishments. Pink Pony had lawfully operated in
its location for more than 20 years before the City enacted the Code, but Stardust
first opened its doors after the Code was passed. And Pink Pony—unlike
Stardust—has cooperated with the City to counteract secondary effects by agreeing
to pay for additional police presence, ensure that its licensing and permits are up to
date, and relocate within a set number of years. As in Griffin, Pink Pony’s
cooperation precludes a determination that it is similarly situated to Stardust.
But, as the district court noted, even if Stardust and Pink Pony were
similarly situated, the City’s unequal treatment of the two businesses passes
rational basis review. See Vill. of Willowbrook, 528 U.S. at 564. The Code
prohibits a sexually oriented business from locating within 100 feet of another
sexually oriented business. Because Stardust and Pink Pony were operating within
100 feet of each other, and both were sexually oriented businesses, “it is beyond
cavil that, to comply with the statute, one may stay and one must go.” Doc. 104 at
25 Case: 16-17176 Date Filed: 08/10/2018 Page: 26 of 27
31. We cannot say that the City’s decision to allow Pink Pony—which cooperated
with the City and which operated lawfully in its location for many years before the
Code was enacted and before Stardust, which opened only after the Code was
passed, established its store—to continue to operate while enforcing the Code
against Stardust was not rational.9 Stardust’s equal protection claim therefore fails.
D. The Code Does Not Impermissibly Infringe on the Substantive Due Process Right to Private Sexual Intimacy.
Stardust argues that the Code infringes on a constitutional right to private
sexual intimacy, but it acknowledges that based on our prior panel precedent, there
is no “substantive due process right of consenting adults to engage in private
intimate sexual conduct.” Williams v. Attorney Gen. of Ala., 378 F.3d 1232, 1236
(11th Cir. 2004) (emphasis omitted). Under our prior panel precedent rule, a
holding by a prior panel is binding unless there is “a clearly contrary opinion of the
Supreme Court or of this court sitting en banc.” Garrett v. Univ. of Ala. at
Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003) (emphasis and
internal quotation marks omitted).
Stardust suggests that we should reconsider Williams in light of the Supreme
Court’s decisions in United States v. Windsor, 570 U.S. 744 (2013), and Obergefell
v. Hodges, 135 S. Ct. 2584 (2015). We need not decide whether these cases have
9 We note that, although the City’s decision to allow Pink Pony to continue to operate in that location passes rational basis review, Pink Pony will not operate in that location indefinitely. Under its exit agreement with the City, it must relocate in a set number of years. 26 Case: 16-17176 Date Filed: 08/10/2018 Page: 27 of 27
abrogated Williams because we cannot agree with Stardust that the Code infringes
on any constitutional right to private sexual intimacy. As we explained in Part
IV.A, the Code—a zoning ordinance—is a valid time, place and manner restriction
that leaves open 73 sites within the City for the operation of adult businesses,
including sexual device stores. It neither bans the sale or use of sexual devices in
the City nor impedes any individual’s ability to engage in private, consensual
sexual activity. We thus reject Stardust’s argument that the Code violates a
substantive due process right to private sexual intimacy.
V. CONCLUSION
We affirm the district court’s grant of summary judgment to the City.
AFFIRMED.