William G. Ward v. County of Orange

217 F.3d 1350

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 13, 2000
• Docket: 99-11283
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JULY 13 2000 THOMAS K. KAHN No. 99-11283 CLERK ________________________

D. C. Docket No. 98-00428-CIV-ORL-19

WILLIAM G. WARD, d.b.a. Bourbon Street South,

Plaintiff-Appellant,

versus

COUNTY OF ORANGE,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________ (July 13, 2000)

Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.

BLACK, Circuit Judge:

* Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. Appellant William G. Ward appeals the district court’s grant of summary

judgment on Appellant’s constitutional challenges. On appeal, Appellant claims the

district court erred in finding in favor of Appellee County of Orange on its facial

challenges and erred in dismissing its as-applied challenges. We conclude the district

was correct in granting summary judgment with respect to the facial challenges but

remand with instructions the as-applied challenges.

I. BACKGROUND

Appellant William G. Ward is the owner of a “swimsuit club” operating under

the name Bourbon Street South (BSS). At BSS, customers can purchase “Sweetheart

Party Packages,” ranging in price from $20 to $200. These packages give customers

access to, among other things, nonalcoholic beverages and slow dances with BSS

performers. While Appellant claims BSS is no different than other dance studios,

Appellee presented extensive evidence showing that BSS differed significantly from

traditional dance studios.

For example, one affidavit explained that BSS performers “simulated or

actually engaged in masturbation of themselves or displayed their buttocks, genitals,

or breasts.” The affidavit further noted BSS performers “would rub their bodies

against their male customers, press their genitals against those of the customers . . .

allow the customers to fondle their buttocks and exposed back . . . and often times

2 would place their hands underneath the customers’ shirt or fondle the customer’s

buttocks.” Further evidence showed BSS performers often revealed their body parts

to customers.

As a result of such conduct, several performers and a manager at BSS, but not

Appellant, were arrested for violations of Orange County’s Adult Entertainment Code

(the code).2 The code reads, in pertinent part, as follows:

Adult performance establishment shall mean as follows:

(1) An establishment where any worker:

a. Engages in a private performance, acts as a private model, or displays or exposes any specified anatomical areas to a customer;

b. Wears and displays to a customer any covering, tape, pastie, or other device which simulates or otherwise gives the appearance of the display or exposure of any specified anatomical areas;

c. Offers, solicits or contracts to dance or perform with a customer in consideration for or accepts any tip, remuneration or compensation from or on behalf of that customer; or

d. Dances or performs with or within three (3) feet of a customer in consideration for or accepts any tip, remuneration, compensation from or on behalf of that customer.

Orange County Adult Entertainment Code, § 3-6. Operations deemed to be adult

performance establishments, as defined in the code, must obtain an adult

2 The performers and manager were arrested for, among other things, operating without an adult entertainment license.

3 entertainment license and must conform to the zoning requirements contained in

sections 3-76 through 3-78 of the code.

Appellant has never applied for an Orange County adult entertainment license.

Furthermore, Appellee has never cited Appellant or BSS for a violation of the code

and has never held a code enforcement proceeding against Appellant or BSS. Finally,

Appellee has never filed a lawsuit seeking to enjoin actions by Appellant or BSS in

violation of the code.

Appellant brought suit against Appellee claiming the code is unconstitutional

on its face and as-applied. Among other things, Appellant claimed the code was

overbroad, content-based, vague, unrelated to a legitimate state interest, and

unconstitutionally shifted the burden of proof. Appellant also argued the code was

unconstitutionally applied to BSS. The district court granted summary judgment for

Appellee on the facial challenges and determined Appellant’s as-applied challenges

were not ripe. We affirm the district court with respect to the facial challenges but

II. ANALYSIS

We review de novo the district court’s entry of summary judgment. See AT&T

Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1324 (11th Cir. 2000). In

assessing a motion for summary judgment, “we must examine the evidence in the light

4 most favorable to the non-moving party.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365

(11th Cir. 2000). Summary judgment is appropriate if there are no genuine issues of

material fact. See id.

A. Facial Challenges

1. City of Renton Test

We review Appellee’s zoning ordinance in this case under the “time, place, or

manner” standard set forth by the Supreme Court in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925 (1986). See Lady J. Lingerie, Inc. v. City

of Jacksonville, 176 F.3d 1358, 1361 (11th Cir. 1999), cert. denied, 120 S. Ct. 1554

(2000). Under this standard, a “zoning ordinance is valid if it is narrowly tailored to

serve a substantial government interest, and it allows for reasonable alternative

avenues of expression.” Id.

Appellant’s main contention is that the zoning ordinance does not serve a

substantial governmental interest. Appellant argues the zoning ordinance regulates

pure speech and other expressive forms of conduct and therefore violates the First

Amendment. We disagree.

The Supreme Court consistently has held that combating the harmful secondary

effects of adult businesses, such as increased “crime and other public health and safety

problems,” is a substantial interest. City of Erie v. Pap's A.M., 120 S. Ct. 1382, 1397

5 (2000); see City of Renton, 475 U.S. at 50, 106 S. Ct. at 930 (stating that “a city’s

interest in attempting to preserve the quality of urban life is one that must be accorded

high respect”) (internal quotation omitted). Significantly, the Court stated that

although the “regulation may have some incidental effect on the expressive element

of the conduct. . . [t]he State's interest in preventing harmful secondary effects is not

related to the suppression of expression.” Pap’s, 120 S. Ct. at 1393. The Court added

that it “will not strike down an otherwise constitutional statute on the basis of an

alleged illicit motive.” Id. at 1392-93. Finally, we have noted “it is not difficult to

draft an ordinance that addresses the harmful secondary effects of adult businesses

without running afoul of the First Amendment.” Lady J. Lingerie, 176 F.3d at 1363.

In this case, the zoning ordinance was intended, at least in part, to combat the

negative secondary effects of adult establishments. Appellee relied on numerous

studies and hearings to show that the presence of adult entertainment establishments

is associated with negative secondary effects. Although several of these studies were

conducted by different cities, the Supreme Court has made it clear that “the city need

not conduct new studies or produce evidence independent of that already generated

by other cities to demonstrate the problem of secondary effects, so long as whatever

evidence the city relies upon is reasonably believed to be relevant to the problem that

6 the city addresses.” Pap’s, 120 S. Ct. at 1395 (internal quotations omitted).

Furthermore, Appellee conducted at least one public hearing that specifically

examined the secondary effects of Appellant's establishment. Therefore, even

assuming, as Appellant alleges, this ordinance incidentally reaches some forms of

protected expression, the ordinance is a valid time, place, or manner regulation under

City of Renton because it is aimed at combating the harmful secondary effects

associated with adult entertainment establishments.3

2. Burden-Shifting

Appellant also contends the ordinance unconstitutionally places on the applicant

the burden of proving that the “predominant business or attraction of the

establishment” is not “intended to provide sexual stimulation or sexual gratification.”4

3 Appellant does not dispute that the ordinance is narrowly tailored and leaves open reasonable alternative avenues of expression. 4 Section 3-6(2) of the code provides as follows: This definition is not intended to apply, and it is an affirmative defense to an alleged violation of this chapter regarding operating an adult performance establishment without a license, if the alleged violator demonstrates either (a) that the establishment is a bona fide private club whose membership as a whole engages social nudism or naturalism as in a nudist resort or camp, or (b) that the predominant business or attraction of the establishment is not the offering to customers of a product, service, or entertainment which is intended to provide sexual stimulation or sexual gratification to such customers, and the establishment and its advertising is not distinguished by an emphasis on, or the promotion of, matters or persons depicting, describing, displaying, exposing, stimulating or relating to specified sexual activities or specified anatomical areas. “Sexual stimulation” is defined as

7 The starting point for the burden-shifting analysis is the Supreme Court’s

decision in Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734 (1965). In Freedman,

the Court discussed the procedural safeguards required for the administration of a

motion picture censorship system. See Freedman, 380 U.S. at 56-61, 85 S. Ct. at 737-

40. The Court noted censorship is “always fraught with danger and viewed with

suspicion,” and therefore mandated the following safeguards: (1) the burden of

proving the film is unprotected by the First Amendment must be placed on the censor;

(2) any restraint prior to judicial review may only be imposed for a specified brief

period of time during which the status quo must be maintained; and (3) the final

judicial decision must be prompt. Id. at 57-59, 85 S. Ct. at 738-39.

Subsequently, in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S. Ct. 596 (1990),

the Supreme Court addressed whether a licensing scheme regulating adult

entertainment establishments must contain the same procedural safeguards. In a

either to excite or arouse the prurient interest or to offer, propose, solicit, or suggest to provide an act of sexual gratification to a customer, including but not limited to all conversations, statements, advertisements and acts which would lead a reasonable person to conclude that an act of sexual gratification was to be provided. “Sexual gratification” is defined as the engaging in or committing of an act of sexual intercourse, oral- genital contact, masturbation, or the touching of the covered or uncovered sexual organ, pubic region, buttock, breast, chest or inner thigh of a person, any of which is for the purpose of arousing or gratifying the sexual desire of another person.

8 plurality opinion, Justice O’Connor noted “[t]he core policy underlying Freedman is

that the license for a First Amendment-protected business must be issued within a

reasonable period of time, because undue delay results in the unconstitutional

suppression of protected speech.” FW/PBS, 493 U.S. at 228, S. Ct. at 606. As such,

the plurality concluded a licensing scheme must provide the second and third

safeguards required by Freedman. See id.

In discussing the first safeguard, however, the plurality emphasized the

differences between a censorship scheme and a licensing scheme. Specifically, the

plurality noted a censorship scheme is presumptively invalid because it is a direct

suppression of expressive material. See id at 229, S. Ct. at 607. In contrast, under a

licensing scheme, a “city does not exercise discretion by passing judgment on the

content of any protected speech. Rather, the city reviews the general qualifications

of each license applicant, a ministerial action that is not presumptively invalid.” Id.

Furthermore, the plurality reasoned that license applicants have much more at

stake than motion picture distributors: “[b]ecause the license is the key to the

applicant’s obtaining and maintaining a business, there is every incentive for the

applicant to pursue a license denial through court.” Id. at 229-30, 110 S. Ct. at 607.

Motion picture distributors, however, are more likely to be deterred from challenging

a censorship decision and thus a “censor’s decision to suppress [speech] was

9 tantamount to complete suppression of the speech.” Id. at 229, 100 S. Ct. at 607.

Because of these distinctions, the FW/PBS plurality concluded that the first procedural

safeguard from Freedman did not apply in the licensing context. See id. Thus, a city

may require the license applicant to bear the burden of proving that it is engaging in

protected activity.

While a majority of the Supreme Court has failed to join Justice O’Connor in

recognizing these distinctions, we have explicitly noted the significant differences

between censorship schemes and licensing schemes. See Boss Capital, Inc. v.

Casselberry, 187 F.3d 1251 (11th Cir. 1999), cert. denied, 120 S. Ct. 1423 (2000).

In Boss Capital, this Court addressed the related issue of whether Freedman and

FW/PBS require a guarantee of a prompt judicial resolution of license denials or

merely a guarantee of a prompt judicial review.5 See id. at 1255. While recognizing

that Freedman “unmistakably requires a prompt final judicial decision” in a

censorship scheme, this Court emphasized that licensing decisions are inherently

different from censorship decisions. Id. at 1256 (internal quotation omitted). We

therefore concluded licensing schemes need only provide prompt judicial review of

licensing denials. See id. at 1256-57.

5 This question, which has divided the Circuits, arises from Justice O’Connor’s statement that “there must be the possibility of prompt judicial review in the event that [a] license is erroneously denied.” FW/PBS, 493 U.S. at 228, 110 S. Ct. at 606. As noted above, in Freedman, the Supreme Court had required a “prompt final judicial decision.” Freedman, 380 U.S. at 59, 85 S. Ct. at 739.

10 Once again, it is important to stress the differences between censorship schemes

and licensing schemes-- “[t]he dangers of censorship are less threatening when it

comes to licensing schemes.” Id. at 1256. And, again, “[w]e believe this is a

situation for ‘treating unlike things differently according to their differences.’” Id.

(quoting Lyes v. City of Riviera Beach, 166 F.3d 1332, 1342 (11th Cir. 1999) (en

banc)). Accordingly, we conclude a city may place the burden of proving that the

“predominant business or attraction of the establishment” is not “intended to provide

sexual stimulation or sexual gratification ” on the applicant. See Steakhouse, Inc. v.

City of Raleigh, 166 F.3d 634, 640-41 (4th Cir. 1999) (holding a city may place the

burden of “proving no adverse secondary effects on the applicant”); Florida Video

Xpress, Inc. v. Orange County, 983 F. Supp. 1091, 1098 (M.D. Fla. 1997)

(concluding an adult entertainment code may shift the burden to a business to prove

that it is not an adult entertainment establishment).

3. Overbreadth

An ordinance is unconstitutionally overbroad “when lawmakers define the

scope of a statute to reach both unprotected expression as well as, at least potentially,

protected speech.” American Booksellers v. Webb, 919 F.2d 1493, 1502 (11th Cir.

1990). We will consider an ordinance to be facially invalid under the First

Amendment

11 only if it is “substantially overbroad, that is, its application would be unconstitutional

in a substantial proportion of cases.” Agan v. Vaughn, 119 F.3d 1538, 1542 (11th Cir.

1997).

Appellant has failed to show the application of the ordinance would be

unconstitutional in a substantial proportion of cases. Therefore, the district court was

correct in granting summary judgment for Appellee on this claim.6

B. As-Applied Challenges

Appellant contends the district court erred in concluding its as-applied

challenges were not ripe. In order for an as-applied challenge against a county to be

ripe, a county official “with sufficient authority must have rendered a decision

regarding” the party’s proposal. Digital Properties, Inc. v. City of Plantation, 121

F.3d 586, 590 (11th Cir. 1997). Furthermore, “[w]ithout the presentation of a binding

conclusive administrative decision, no tangible controversy exists and, thus, we have

no authority to act.” Id. We simply have “neither the power nor the inclination” to

resolve a potential dispute founded only on a party’s belief that a county would

6 Appellant also argues the terms “sexual gratification” and “sexual stimulation,” as used in the ordinance, are unconstitutionally vague. We, however, have already held that a similar term is not unconstitutionally vague. See Stansberry v. Holmes, 613 F.2d 1285, 1289 (5th Cir. 1980). This case is binding on this Court pursuant to Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), in which this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. The district court therefore did not err in granting summary judgment on this claim.

12 interpret an ordinance in such a way as to violate the party’s First Amendment rights.

Id. at 591. However, a party need not seek a binding conclusive administrative

decision where such an effort would be futile. See Eide v. Sarasota County, 908 F.2d

716, 726 (11th Cir. 1990).

Thus, in the typical case, Appellant’s as-applied challenge would be ripe only

if Appellant had applied for a license or if Appellant demonstrated an application

would have been futile. At first glance, it therefore appears Appellant has not

presented this Court with a ripe controversy, as it has failed to apply for a license and

has failed show it would have been futile to do so. This, however, is not the typical

case. In this case, Appellant is not seeking a license. Rather, Appellant contends it

is not an adult entertainment establishment as defined in the code. Appellant therefore

asserts it is not required to apply for a license.

In their briefs, the parties did not address whether, before bringing the as-

applied challenges, Appellant applied to the zoning board to determine whether it

needed a license to operate BSS. The panel, and we presume the district court,

assumed this procedure was available to Appellant. However, when asked at oral

argument, counsel for Appellee, perhaps unprepared to answer the question, did not

affirmatively state that such a mechanism existed and seemed to suggest the only way

for Appellant to ripen this case was to apply for a license. As it is obviously illogical

13 to force Appellant to apply for a license it repeatedly argues it does not need, the

ripeness of the as-applied claim depends on whether Appellant could have obtained

from the zoning board a determination whether BSS needed a license. If a procedure

exists, the as-applied challenges are not ripe, as Appellant has failed to show that a

county official with sufficient authority rendered a decision regarding BSS. If,

however, a procedure does not exist, we conclude Appellant’s as-applied challenges

are ripe and would need to be considered by the district court. We therefore remand

the as-applied challenges to the district court to determine whether Appellant could

have sought a ruling from the zoning board as to whether Appellant was required to

obtain a license for BSS.

III. CONCLUSION

We affirm the district court’s grant of summary judgment on Appellant’s facial

constitutional challenges but remand with instructions the as-applied challenges.

AFFIRMED IN PART and REMANDED IN PART.