COMMONWEALTH OF KENTUCKY V. EDWARD GREEN JAMESON
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2004-SC-000983-DG
COMMONWEALTH OF KENTUCKY
V.
D
D
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2003-CA-000967-DG
MCCRACKEN CIRCUIT COURT, NOS. 00-M-01796, 00-M-01797
AND 02-XX-00004
APPELLEE
EDWARD GREEN JAMESON
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
On April 24, 2000, the McCracken County Fiscal Court adopted and published
Ordinance No. 2000-4, "An Ordinance Providing Regulation of Sexually Oriented
Businesses and Their Employees." The ordinance provides, in pertinent part, that
employees (i.e. nude dancers) of sexually oriented businesses wear the de minimis
covering of "pasties" and a "G-string,"' and that no sexually oriented businesses remain
open at any time between 1 a.m . and 6 a . m.2 The ordinance also prohibits entertainers
and employees of such a business from having any physical contact with a patron
during any performance . 3 Any person who violates the provisions of the ordinance
would be guilty of a misdemeanor and subject to a fine of not less than one hundred
' McCracken County Ordinance, No. 2000-4, Section VII(b).
2 Id. at Section IV(e) .
3 Id. at Section VII(d).
dollars nor more than five hundred dollars, or be imprisoned in the county jail for not
more than twelve months or both .
The Preamble to the ordinance states that its purpose is "to promote health,
safety, and general welfare of the citizens of [McCracken] County, and to establish
reasonable and uniform regulations relating to sexually oriented businesses ." By its
terms, the ordinance seeks to prevent any negative secondary effects generally
associated with sexually oriented businesses, viz., increased crime, lowered property
values, and a deleterious effect on surrounding businesses . The ordinance adopts the
findings of such adverse secondary effects presented in reports made available to the
Fiscal Court, and on findings incorporated in the cases of City of Renton v. Playtime
Theatres . Inc. , 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed .2d 29 (1986), Young v. American
Mini Theatres. Inc. , 427 U .S. 50, 96 S .Ct. 2440, 49 L.Ed.2d 310 (1976), and Barnes v.
Glen Theatre. Inc . , 501 U .S. 560, 111 S.Ct. 2456, 115 L.Ed .2d 504 (1991), as well as
on studies from other communities .
Shortly after the passage of the ordinance, Appellee Jameson was cited for
operating his adult cabarets (Regina's II) in violation of several of the provisions of the
ordinance . Specifically, Jameson was cited for violating the hours of operation
4 Id. at Section XI .
s As the
Court of Appeals notes, there is no dispute that Regina's II is an "adult cabaret"
as that term is defined in Section II(3) of McCracken County Ordinance No. 2000-4 :
"'Adult Cabaret' means a night club, bar, restaurant, or similar commercial
establishment which regularly features : (a) Persons who appear in a state of nudity or
semi-nude ; or (b) Live performance which are [sic] characterized by the exposure of
`specified anatomical areas' or by `specified sexual activities' ; or (c) Films, motion
pictures, video cassettes, slides or other photographic reproductions which are
characterized by the depiction or description of `specified anatomical areas' or `specified
anatomical areas."'
requirement, allowing total nudity by dancers, and allowing physical contact between
nude dancers and patrons .
Jameson filed a motion in McCracken District Court to declare the ordinance
unconstitutional . On October 18, 2001, an evidentiary hearing was held during which
several witnesses testified on his behalf . The first witness, Brent Stringer, a dispatcher
with the Paducah/McCracken E-911 Communication Services, testified that E-911 had
received numerous calls from Regina's II, amounting to approximately two and one-half
pages from that location alone, during the 2001 calendar year up to the date of the
hearing . Stringer acknowledged, however, that he had received more calls from two
nearby non-sexually oriented businesses, i.e. nightclubs, during that same period .6
Stringer also testified that not all criminal investigations are reported on the E-911 call
sheets, such as undercover investigations . However, as the Commonwealth points out,
Stringer did not testify concerning the number of patrons that visit any of the
establishments in a given time period, nor did he testify concerning the total revenues of
any of the businesses. Significantly, Stringer did not testify as to whom, if anyone,
would typically call 911 to report illicit sexual behavior occurring on the premises of this
adult business . It does seem unlikely that one participating in illicit sexual behavior at
such a business would call 911 and complain about it. Likewise, Jameson did not
attempt to establish that Stringer was an expert in criminology .
6 Jameson's counsel subpoenaed the call logs relating to the non-sexually oriented
businesses in an attempt to discredit the findings of the fiscal court upon which the
ordinance was founded .
Other witnesses, including Melissa Meyer, a day shift manager at The
Playhouse, and Joanne Warner, owner of The Playhouse, also testified .' Specifically,
the women testified about the "rules" in place at The Playhouse, which, as they testified,
were in place to keep the patrons and employees safe . Among these were rules
against drugs, acts "of any sexual nature," prostitution, and the requirement that
"everything is sanitized ." Warner also emphasized that her establishment had a rule
prohibiting patron-dancer touching . Although Warner testified that such rules were in
place at The Playhouse, she acknowledged she had recently called the police to report
a man engaging in indecent exposure on the premises.
Warner also testified that although she had heard of incidents of sexual acts
between patrons and dancers at other clubs, she insisted the rules at The Playhouse
specifically prohibited such acts. At no point, though, did Warner or Meyer testify that
requiring dancers to wear pasties and a G-string would not further the local
government's interest in preventing illicit sexual conduct between patrons and dancers.
Moreover, Jameson did not offer similar evidence of "self-regulation" at Regina's II .
Finally, a local realtor, George Wiley, testified via deposition as to several
commercial real estate transactions that he had been involved with on the "south side of
Paducah"$ over the previous several years . Wiley opined that the value of "south side"
real estate had "increased tremendously" over the past ten to fifteen years based on
Joanne Warner was also cited for misdemeanor violations of the ordinance for
activities occurring at The Playhouse, another sexually oriented business located in
McCracken County.
8 The "south side of Paducah" is an undefined geographical area in which Regina's II,
as well as several other non-sexually oriented businesses, i .e. nightclubs, and other
businesses and residences are located .
"what it's selling for now" and "the fact that it wasn't selling" in the time period prior to
the previous fifteen years . However, he also admitted that much of this increase in
general was due to the recent presence of a Wal-Mart in the area .
On May 31, 2002, the McCracken District Court, having conducted several
evidentiary hearings and having heard the arguments of counsel, denied Jameson's
motion to declare the ordinance unconstitutional . Applying the United States Supreme
Court's holding in Renton , su ra, as well as Kentucky Court of Appeals' holding in
Restaurant Ventures, LLC v. Lexington-Fayette Urban County Government, 60 S.W.3d
572 (Ky. 2001), the court found that McCracken County was entitled to rely upon the
studies it compiled and cited concerning the negative secondary effects of sexually
oriented businesses. The court also concluded that Jameson supplied no authority
demonstrating that the Kentucky Constitution affords greater protection for the nude
dancing activities at Regina's II, and therefore rejected the state constitutional claims.9
On April 9, 2003, the McCracken Circuit Court affirmed the district court, noting
that McCracken County did not need to "conduct new studies or produce evidence
independent of that already generated by other municipalities to demonstrate the
problem of secondary effects" stemming from activities at sexually oriented businesses.
Additionally, the circuit court concluded that whatever evidence the municipality relies
upon, that evidence is reasonably believed to be relevant to the problem that the
municipality addresses. The court further found that the ordinance was not vague or
overbroad in its application, that it was not arbitrary or discriminatory in light of federal or
9 Those who have read and are familiar with the Debates of the 1890 Kentucky
Constitutional Convention could only imagine the humorous confrontation which would
have occurred had these rights been asserted at the convention .
Kentucky constitutional standards, and that the administrative inspection provision
imposed on Regina's II fell under the warrantless search exception to the Fourth
Amendment of the United States Constitution in relation to "closely regulated"
businesses.
Jameson then appealed to the Kentucky Court of Appeals, and on August 6,
2004, that court affirmed in part, vacated in part, and remanded the case for further
proceedings . In its opinion, the Court of Appeals noted that "as between totally nude
exotic dancing and exotic dancing that is accompanied by pasties and G-strings, we
hold that any muting of the erotic message that occurs by prohibiting the totally nude
exotic dancing is de minimis . Slip Op. at 18. It also acknowledged that "when enacting
ordinances aimed at combating the negative, secondary effects associated with
sexually-oriented businesses, cities are entitled to rely on studies from other
municipalities and even prior court precedents which tend to establish the link between
sexually-oriented businesses and those negative, secondary effects ." Slip Op. at 21
(citing City of Erie v. Pap's A.M., 529 U.S . 277, 296-97,120 S .Ct. 1382, 1395, 146
L. Ed.2d 265 (2000)).
However, the Court of Appeals found that Jameson's "unrebutted" evidence
before the district court tended to "cast doubt" on the fiscal court's pre-enactment
justification for Section VII(b)1° of the ordinance . In vacating the ruling of the circuit
court, the Court of Appeals, citing City of Los Angeles v. Alameda Books. Inc., 535 U.S .
425, 122 S.Ct. 1728, 152 L .Ed .2d 670 (2002) held that "as Alameda Books makes clear,
'° Section VII(b) provides : "No person shall appear nude or in a state of nudity while
engaged in any live performance on the premises of any sexually oriented business ."
if a party challenging the regulation casts doubt on the city's pre-enactment rationale,
the burden shifts back to the city to proffer supplemental evidence justifying the
regulation ." Slip Op. at 22. The court also relied on Peek-A-Boo Lounge of Bradenton,
Inc. v. Manatee County, Florida , 337 F.3d 1251, 1264-65 (11 th Cir. 2003), wherein the
Eleventh Circuit noted that "[t]he significance of Alameda Books is that it clarifies how
the court is to interpret the third step of the Renton analysis as well as the second prong
of the O'Brien test."" The Court of Appeals thus remanded the case back to the
McCracken District Court for an evidentiary hearing "to determine whether the fiscal
court can proffer supplementary evidence indicating that Section VII(b)'s ban on totally
nude dancing furthers a substantial governmental interest in McCracken County without
unreasonably limiting alternative avenues of communication." Slip Op. at 24 (citing
Peek-A-Boo Lounge, 337 F.3d at 1273) (emphasis in original) .
It is from this ruling that the Commonwealth appeals to this Court. Accordingly,
the only issue before this Court is whether the Court of Appeals erred as a matter of law
in concluding that Appellee Jameson provided evidence sufficient to cast "direct doubt"
on the rationale proffered by the McCracken Fiscal Court for Ordinance No. 2000-4 in
order to shift the burden to the municipality to supplement the record with evidence
renewing support for its rationale in enacting the ordinance. For the reasons set forth
" The Court of Appeals is referring to the second prong of the four-prong test set forth
in United States v. O'Brien , 391 U.S. 367, 88 S .Ct. 1673, 20 L.Ed.2d 672 (1968), which
provides that "a government regulation is sufficiently justified (1) if it is within the
constitutional power of the Government; (2) if it furthers an important or substantial
governmental interest; (3) if the governmental interest is unrelated to the suppression of
free expression ; and (4) if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest." Id. at 377;
88 S .Ct. at 1679. A detailed discussion of O'Brien follows in the Analysis portion of this
opinion .
herein, we find that the Court of Appeals erred as a matter of law, and thus we reverse
the Court of Appeals and reinstate the judgment of the district court.
ANALYSIS
A. Standard of Review.
Our review of this matter requires this Court to interpret an ordinance adopted by
the McCracken County Fiscal Court as it regulates sexually oriented businesses in that
county. Since this review involves the construction and application of Ordinance No.
2000-4, it is thus a matter of law, and "may be reviewed de novo ." Bob Hook Chevrolet
Isuzu. Inc. v. Com. Transp . Cabinet , 983 S.W.2d 488, 490 (Ky. 1998).
B. History and development of First Amendment jurisprudence as it relates to
sexually oriented businesses .
The case at bar involves an ordinance directed at preventing the negative
secondary effects generally associated with sexually oriented businesses. Specifically,
McCracken County Fiscal Court adopted Ordinance No. 2000-4 in an effort to protect
the health, safety and welfare of the citizens of McCracken County and to establish
"reasonable and uniform regulations relating to sexually oriented businesses ." Based in
part on United States Supreme Court precedent, rationales offered by various other
jurisdictions, and studies conducted in other communities, the ordinance purports to
target negative secondary effects without the intent or effect of restricting or denying
access by adults to sexually oriented materials or of imposing a limitation or restriction
on the content of any communicative materials .
Prior to determining whether or not the Court of Appeals correctly determined
that Jameson was successful in casting direct doubt on the rationale or findings of fact
proffered by the fiscal court, a thorough analysis of the secondary effects doctrine and
First Amendment jurisprudence as it relates to sexually oriented businesses and as
developed by the United States Supreme Court is necessary. This task is complicated
by the fact that, to date, there have been no clear majority standards formulated for
evaluating nudity ordinances given that almost all of the decisions in this area were
decided by plurality opinions .
Furthermore, the Supreme Court "has occasionally borrowed specific doctrines
developed in one category of case[s] to apply to the other." Peek-A-Boo Lounge, 337
F.3d at 1255-56. As will become apparent, the standards that have developed provide
only a framework for courts to apply in determining whether a regulation, aimed at
preventing identified negative secondary effects, impermissibly encroaches on the
expressive message purportedly inherent in erotic dancing. Subsequently, the
Supreme Court has found that this manner of "speech" is only marginally protected by
the First Amendment to the United States Constitution ., See, g. f_., California v. LaRue,
409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) (Rehnquist, J. majority) (finding
that "at least some of the performances to which these regulations address themselves
are within the limits of the constitutional protection of freedom of expression"), overruled
on other grounds by 44 Liauormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495,
134 L.Ed .2d 711 (1996); Doran v. Salem Inn , 422 U.S . 922, 932, 95 S.Ct. 2561, 45
L.Ed.2d 648 (1975) (declaring that "although the customary `barroom' type of nude
dancing may involve only the barest minimum of protected expression, we recognized
[in LaRue that this form of entertainment might be entitled to First and Fourteenth
Amendment protection in some circumstances") ; Young v. American Mini Theatres , 427
U.S . 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (Stevens, J ., plurality) (recognizing
that "the First Amendment will not tolerate the total suppression of erotic materials that
have some arguably artistic value, [yet] it is manifest that society's interest in protecting
this type of expression is of a wholly different, and lesser, magnitude than that interest
in untrammeled political debate") ; Barnes v. Glen Theatre, Inc., 501 U .S . 560, 566, 111
S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Rehnquist, C .J ., plurality) (stating that "nude
dancing of the kind sought to be performed here is expressive conduct within the outer
perimeters of the First Amendment, though we view it as only marginally so") ; City of
Erie v. Pap's A.M . , 529 U.S. 277, 289,120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)
(O'Connor, J ., plurality) (holding that "[b]eing in a `state of nudity' is not an inherently
expressive condition. . . . [H]owever, nude dancing of the type at issue here is
expressive conduct, although we think that it falls only within the outer ambit of the First
Amendment's protection .").
1 . United States v. O'Brien 12
In 1966, David Paul O'Brien and several companions burned their Selective
Service Registration cards on the steps of the South Boston Courthouse . Upon his
13
arrest, O'Brien acknowledged that he knew he was violating federal law by burning his
card, but told the FBI agents that he did so because of his anti-war beliefs. O'Brien did
12
391 U.S. 367, 88 S .Ct. 1673, 20 L .Ed.2d 672 (1968). Although this case does not
involve a municipal ordinance regulating public nudity or providing for zoning of specific
adult oriented businesses, it is nonetheless the most logical starting point for this
discussion as the four-part test developed therein has been utilized in numerous cases
involving ordinances regulating sexually oriented businesses .
1350 U .S.C . App. § 462(b),
amended by Act of 1965, 79 Stat. 586. When Congress
amended the statute in 1965, it added language so that at the time O'Brien burned his
certificate, an offense was committed by any person "who forges, alters, knowingly
destroys, knowingly mutilates, or in any manner changes any such certificate."
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not contest the fact that he destroyed the card and argued to the jury that he did it as a
protest and in an attempt to influence others to adopt his anti-war beliefs. He was
subsequently tried, convicted and sentenced .
On appeal, the Court of Appeals for the First Circuit held that the law was
unconstitutional as they found the law was directed at public rather than private
destruction of the certificates and thus "singl[ed] out persons engaged in protests for
special treatment." O'Brien , 391 U.S. at 370, 88 S.Ct. at 1676. Consequently, the
issue was presented to the United States Supreme Court to ultimately decide the
constitutionality of the law.
In evaluating O'Brien's claims, the Supreme Court held that "when `speech' and
`nonspeech' elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms." Id. at 376, 88 S.Ct. at 1678-79 .
The Court then articulated what has now become the four-part test for evaluating, inter
alia, regulations affecting sexually oriented businesses:
[A] government regulation is sufficiently justified if it is within the
constitutional power. of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated
to the suppression of free expression ; and if the incidental restriction on
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.
Id. at 377, 88 S.Ct. 1679.
2. California v. LaRue
The existence of First Amendment freedom of expression rights in the context of
sexually oriented businesses was first recognized in California v. LaRue , 409 U .S . 109,
93 S.Ct. 390, 34 L.Ed.2d 342 (1972), overruled on other grounds by 44 Liguormart, Inc.
v. Rhode Island , 517 U.S . 484, 116 S .Ct . 1495, 134 L.Ed .2d 711 (1996). At issue was
the constitutionality of several regulations promulgated by the California Department of
Alcoholic Beverage Control to prohibit live explicitly sexual entertainment and films in
bars and other establishments licensed to dispense liquor by the drink. In upholding the
regulations as a valid exercise of the state's power under the Twenty-first Amendment
to the United States Constitution, the Court discussed the regulation of differing modes
of expression in the context of adult entertainment:
In O'Brien . . . the Court suggested that the extent to which "conduct" was
protected by the First Amendment depended on the presence of a
"communicative element," and stated : "We cannot accept the view that an
apparently limitless variety of conduct can be labeled `speech' whenever
the person engaging in the conduct intends thereby to express in idea."
LaRue, 409 U .S . at 117, 93 S .Ct. at 396-97 (quoting O'Brien, 391 U .S . at 376, 88 S.Ct.
at 1678). While the Court agreed that "at least some of the performances to which
these regulations address themselves [were] within the limits of the constitutional
protection of freedom of expression," they also noted that California did not prohibit
these performances across the board . Id . at 118, 93 S.Ct. at 397.
Although the determination of constitutionality turned on the Twenty-first
Amendment, this case is important for what it says about incidental restrictions on public
acts . Significantly, the Court opined that "as the mode of expression moves from the
printed page to the commission of public acts that may themselves violate valid penal
statutes, the-scope of permissible state regulations significantly increases." Id. at 117,
93 S .Ct. at 396. Because the state was found to have broad latitude to control the
manner in which alcohol was dispensed, any prohibition against performances of a
sexual or adult nature in those establishments that were licensed to sell liquor by the
drink was constitutional . As mentioned, it was the critical fact that the state did not
prohibit such performances "across the board," and only prohibited them in such a way
that any prohibition was merely incidental to its ability to regulate the dispensing of
alcohol..
3 . Young v. American Mini-Theatres . Inc
In Young v. American Mini Theatres, Inc. , 427 U.S . 50, 96 S.Ct. 2440, 49 L.Ed .2d
310 (1976), the Supreme Court upheld the constitutionality of a Detroit zoning
ordinance, which prohibited the exhibition of "adult" films in theaters not licensed as
"adult motion picture theaters ." In the plurality opinion, written by Justice Stevens, the
Court concluded that "[t]he mere fact that the commercial exploitation of material
protected by the First Amendment is subject to zoning and other licensing requirements
is not a sufficient reason for invalidating these ordinances ." Id. a t 62, 96 S.Ct. at 2448.
Significantly, the plurality opinion did not rest its decision to uphold the ordinance
on the basis of the four-part test of O'Brien , supra. However, in a concurring opinion,
Justice Powell found that the ordinance had an impact on the communication involved,
i .e. the movies themselves, and thus analyzed the constitutionality of the ordinance
utilizing the four-part test. Justice Powell thus found that the ordinance was justified
.because the city clearly had the power to enact the zoning ordinance and the ordinance
would further the city's substantial and important interest in having stable residential and
commercial neighborhoods free from the deteriorating effects associated with "adult"
14
In 44 Liguormart, Inc. v. Rhode Island, 517 U .S. 484, 516 116 S.Ct. 1495, 134
L.Ed.2d 711 (1996), which overruled LaRue insofar as it relied on the Twenty-first
Amendment, the Court concluded that "LaRue would have [had] precisely the same
result if it had placed no reliance on the Twenty-first Amendment . . . [as] the State has
ample power to prohibit the sale of alcoholic beverages in inappropriate locations ."
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movie theaters . As for the third and fourth prongs of the test, Justice Powell concluded
that because this ordinance was already in existence "for a full decade before adult
establishments were brought under it[,]" there was no serious argument that
governmental interest in including adult establishments in the ordinance "was wholly
unrelated to any suppression of free expression ." Id. at 80-81, 96 S.Ct. at 2457. "Nor
[was] there reason to question that the degree of incidental encroachment upon such
expression was the minimum necessary to further the purpose of the ordinance ." Id. at
81-82, 96 S.Ct. at 2458 .
Although Justice Powell and Justice Stevens disagreed on the ultimate reasoning
to uphold the constitutionality of the ordinance, both justices agreed that the ordinance
was not an attempt to suppress'expression . Similarly, Justices Powell and Stevens
found that the ordinance was justified "by the city's interest in preserving the character
of its neighborhoods ." Id. at 71, 96 S.Ct. at 2452 (Stevens, J., plurality) . Justice Powell,
quoting portions of the plurality opinion, found that "the Council was motivated by its
perception that the `regulated uses,' when concentrated, worked a `deleterious effect
upon the adjacent areas' and could `contribute to the blighting or downgrading of the
surrounding neighborhood ."' Id. at 74-75, 96 S.Ct. at 2454 (Powell, J ., concurring) .
"The record disclosed a factual basis for the Common Council's conclusion that
this kind of restriction will have the desired effect." Id. at 71, 96 S.Ct. at 2452-53 . The
factual basis referred to involved the council's determination "that a concentration of
`adult' movie theaters causes the area to deteriorate and become a focus of crime,
effects which are not attributable to theaters showing other types of films. It is this
secondary effect which these zoning ordinances attempt to avoid, not the dissemination
of `offensive speech ."' Id. at 71, n .34, 96 S.Ct. at 2453 (Stevens, J. plurality) . A plurality
of the Court thus concluded that "the city's interest in attempting to preserve the quality
of urban life is one that must be accorded high respect. Moreover, the city must be
allowed a reasonable opportunity to experiment with solutions to admittedly serious
problems ." Id. at 71, 96 S.Ct. at 2453 (Stevens, J., plurality) ; see also id. at 82, n .6, 96
S.Ct. at 2458 (Powell, J., concurring) ('We have here merely a decision by the city to
treat certain movie theaters differently because they have markedly different effects
upon their surroundings .") .
Thus, for the first time the Court announced that zoning ordinances regulating
sexually oriented businesses could be justified on the basis of preventing the negative
secondary effects associated with those types of businesses. In his concurring opinion,
Justice Powell also suggested that a party seeking to invalidate an ordinance for
violating the First Amendment could do so by showing that the ordinance encompassed
movie theaters which posed no deleterious effect . Id. a t 82, 96 S .Ct. at 2458 (Powell,
J ., concurring) ("The case would present a different situation had Detroit brought within
the ordinance types of theaters that had not been shown to contribute to the
deterioration of surrounding areas.").
4 . Schad v. Mount Ephraim
In Schad v. Borough of Mount Ephraim , 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d
671 (1981), the Supreme Court applied a heightened level of scrutiny to a zoning
ordinance enacted by the Borough of Mount Ephraim, which prohibited all live
entertainment, including non-obscene, nude dancing. The Court found the ordinance
unconstitutional in that it "prohibit[ed] a wide range of expression long been held to be
within the protection of the First and Fourteenth Amendments ." Id. at 65, 101 S .Ct. at
2181 . Furthermore, no justification was provided "for the exclusion of a broad category
of protected expression as one of the permitted commercial uses in the Borough ." Id. at
67, 101 S .Ct. at 2181-82 .
Although at first blush Young, supra, would appear to be the controlling case for
resolution of the issue in Schad, the Court found otherwise .
Youn emphasized that the challenged restriction on the location of adult
movie theaters imposed a minimal burden on protected speech. The
restriction did not affect the number of adult movie theaters that could
operate in the city; it merely dispersed them. The Court did not imply that
a municipality could ban all adult theaters-much less all live entertainment
or all nude dancing-from its commercial districts citywide . Moreover, it
was emphasized in that case that the evidence presented to the Detroit
Common Council indicated that the concentration of adult movie theaters
in limited areas led to deterioration of surrounding neighborhoods, and it
was concluded that the city had justified the incidental burden on First
Amendment interests resulting from merely dispersing, but not excluding,
adult theaters .
Schad, 452 U.S . at 71-72, 101 S.Ct. at 2184 (citations omitted) .
In contrast, however, the Court found that "Mount Ephraim [had] not adequately
justified its substantial restriction of protected activity." Id. (citation omitted) . Although
Mount Ephraim offered several justifications, it is interesting to note that none of those
justifications concerned the possibility of negative secondary effects from allowing all
live entertainment. Mount Ephraim did offer as justification that banning commercial live
entertainment would "avoid the problems that may be associated with live
entertainment, such as parking, trash, police protection, and medical facilities ." Id . at
73, 101 S .Ct. at 2185. However, the Court found the distinction inapposite.
The Borough has presented no evidence, and it is not immediately
apparent as a matter of experience, that live entertainment poses
problems of this nature more significant than those associated with
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various permitted uses; nor does it appear that the Borough's zoning
authority has arrived at a defensible conclusion that unusual problems are
presented by live entertainment .
Id. (citation omitted) .
Thus, it became clear that the Court was prepared to analyze ordinances
regulating adult entertainment under a heightened level of scrutiny "when a zoning law
[broadly] infringes on a protected liberty." Id. at 68, 101 S.Ct. at 2182. In Schad, the
ordinance was overly broad in its restrictions, i.e. it was not narrowly drawn, and the
justifications offered were inadequate to support a "substantial government interest."
5 . City of Renton v. Playtime Theatres, Inc.
In Citv of Renton v. Playtime Theatres, Inc., 475 U .S. 41, 106 S.Ct. 925, 89
L.Ed .2d 29 (1986), the Supreme Court again dealt with a zoning ordinance, although
unlike the zoning ordinance at issue in Young , supra, the ordinance enacted by Renton
sought to concentrate adult movie theaters rather than disperse them. The Court
upheld the regulation as a valid governmental response to the "admittedly serious
problems" associated with adult movie theaters . Id. at 52, 106 S.Ct. at 931 .
Although the majority relied heavily upon the analysis and reasoning supplied by
Young , the Court in Renton offered a slightly different framework within which to
analyze zoning ordinances . First, the Court determined that the ordinance did not ban
adult theaters altogether, but rather provided that those theaters may not be located
within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park
or school . As such, it was characterized as a time, place and manner regulation .
In the next step of the analysis, the Court had to determine whether the
ordinance was "content-neutral," subjecting it to intermediate scrutiny, or "content-
based," subjecting it to a heightened level of scrutiny. The Renton Court found the
ordinance at issue did not necessarily "fit neatly' into either category, but nonetheless
concluded that the Renton ordinance was aimed "not at the content of the films shown
at `adult motion picture theatres,' but rather at the secondary effects of such theaters on
the surrounding community," id. at 47, 106 S.Ct. at 929 (emphasis in original), and as
such it was consistent with the Court's definition of "content-neutral" speech regulations.
Important to this step of the analysis was the Court's reliance on the District Court's
finding that "the City Council's `predominate concerns' were with the secondary effects
of adult theaters, and not with the content of adult films themselves ." Id . (emphasis in
original) . The Court further noted that "[t]he ordinance by its terms is designed to
prevent crime, protect the city's retail trade, maintain property values, and generally
`protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts,
and the quality of urban life,' not to suppress the expression of unpopular views." Id. a t
49, 106 S.Ct. at 929 (citation omitted) .
In the third and final step of the analysis, the Court had to determine whether, as
a "content-neutral" regulation, the ordinance was designed "to serve a substantial
governmental interest and allow[ed] for reasonable alternative avenues of
communication ." Renton , 475 U.S. at 50,106 S.Ct. at 930 (citing Clark v. Community
for Creative Non-Violence, 468 U .S . 288, 293, 104 S .Ct. 3065, 3069, 82 L.Ed.2d 221
(1984) ; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S . 640,
649, 654, 101 S.Ct. 2559, 2564, 2567, 69 L.Ed.2d 298 (1981)) . In finding the ordinance
met this standard, the Court opined that "a city's `interest in attempting to preserve the
quality of urban life is one that must be accorded high respect ."' Id. (quoting Young,
427 U.S . at 71, 96 S.Ct. at 2453 (plurality opinion)) .
Renton is significant in terms of providing an analytical framework that is not
altogether different from the analysis provided in O'Brien , at least with respect to
Renton 's third prong and O'Brien's second prong. However, perhaps more important is
the Court's criticism of the "unnecessarily rigid burden of proof" the Court of Appeals for
the Ninth Circuit placed on the city of Renton . Id. The Court of Appeals had ruled that
the city's justifications for the ordinance were "conclusory and speculative," mainly
because the ordinance was enacted "without the benefit of studies specifically relating
to `the particular problems or needs of Renton."' Id. (quoting Playtime Theatres, Inc. v.
City of Renton , 748 F.2d 527, 537 (9th Cir. 1984)). The Supreme Court, however,
found that Renton "relied heavily on the experience of, and studies produced by, the city
of Seattle . . . [where] the adult theater zoning ordinance was aimed at preventing the
secondary effects caused by the presence of even one such theater in a given
neighborhood ." Id. (citing Northend Cinema. Inc . v. Seattle , 90 Wash.2d 709, 585 P.2d
1153 (Wash. 1978)) .
As a result, the Court held "that Renton was entitled to rely on the experiences of
. . . other cities, and in particular on the `detailed findings' summarized in the
Washington Supreme Court's Northend Cinema opinion, in enacting its adult theater
zoning ordinance." Id . at 51, 106 S.Ct. at 931 . The Court further stated :
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 .
Renton , 475 U.S at 51-52, 106 S.Ct. at 931 . In recognizing that Renton could properly
rely on evidence generated by other cities, the Court found the method employed in
Renton furthered its substantial interests . The Court further noted that Renton must be
given the opportunity to experiment with solutions to prevent the serious problems
associated with sexually oriented businesses. To that end, the Court found the
ordinance narrowly drawn to affect only that category of theaters shown to produce the
unwanted secondary effects ." Id. at 52, 106 S .Ct. at 931 .
Finally, the Court held that the zoning ordinance allowed for reasonable
alternative avenues of communication in that it left "some 520 acres, or more than five
percent of the entire land area in Renton, open to use as adult theater sites ." Id . at 53,
106 S.Ct. at 932. Significantly, the Court found that Renton had not used "'the power to
zone as a pretext for suppressing expression ."' Id. at 54, 106 S.Ct. at 932 (quoting
Young , 427 U.S . at 84, 96 S.Ct. at 2459 (Powell, J., concurring)) .
6. Barnes v. Glen Theatre, Inc.
In Barnes v. Glen Theatre . Inc. , 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504
(1991), the Supreme Court had to determine, for the first time, whether an indecency
statute, not unlike that at issue in the case at bar, violated the First Amendment's
guarantee of freedom of expression . Indiana's public indecency statute, in effect,
required exotic dancers to wear pasties and G-strings . Although a majority of the Court
agreed that the statute was constitutional, the Court was unable to agree on a single
rationale supporting this conclusion.
In the plurality opinion, written by Chief Justice Rehnquist, in which Justices
O'Connor and Kennedy joined, the Court noted that Indiana had not banned nude
dancing across the board, but it did prohibit public nudity across the board. In
addressing Barnes' contention that the restriction on nude dancing was a valid "time,
place or manner" restriction under cases such as Clark v. Community for Creative NonViolence , 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed .2d 221 (1984), the Court recognized
that the "time, place or manner" test is significantly similar to the four-part test of
O'Brien , supra . Moreover, the plurality reiterated that `°nude dancing is not without its
First Amendment protections from official regulation ."' Barnes , 501 U .S . at 566, 111
S .Ct. at 2460 (quoting Schad, 452 U.S. at 66, 101 S .Ct. at 2181). Thus, the Court
applied the rule set forth in O'Brien, supra.
In applying O'Brien , Chief Justice Rehnquist, writing for the plurality, found that
Indiana's statute was justified "despite its incidental limitations on some expressive
activity." Id. at 567, 111 S .Ct. at 2461 . The Court found the statute was within Indiana's
constitutional power and furthered the state's substantial governmental interest in
"protecting order and morality ." Id. at 569, 111 S.Ct. at 2462. Furthermore, the Court
found Indiana's interests were "unrelated to the suppression of free expression ." Id .
Finally, the Court found that the fourth part of the O'Brien test was satisfied as
"Indiana's requirements that the dancers wear at least pasties and G-strings [was]
modest, and the bare minimum necessary to achieve the State's purpose ." Id. at 572,
111 S.Ct. at 2463 .
Although instructive, the plurality opinion does not constitute the holding of
Barnes . Here, Justice Souter's concurring opinion provided the narrowest grounds for
the .judgment of the Court, and thus, his concurrence constitutes the holding according
to the rule of Marks v. United States , 430 U .S. 188, 193, 97 S .Ct. 990, 993, 51 L. Ed.2d
260 (1977) ("When a fragmented Court decides a case and no single rationale
explaining the results enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments on the
narrowest grounds .") .
Justice Souter agreed with the plurality that the case was properly analyzed
under O'Brien. However, Justice Souter disagreed with the plurality's determination that
the second prong of O'Brien was satisfied by the state's substantial interest in protecting
order and morality . In contrast, Justice Souter considered the limitations on nude
dancing justified by the "State's substantial interest in combating the secondary effects
of adult entertainment establishments ." Barnes, 501 U.S. at 582, 111 S.Ct. at 2468-69 .
Justice Souter further opined that although the motivation in enacting the statute was
not entirely clear, as Indiana has no legislative history, the Court's "appropriate focus is
not an empirical enquiry into the actual intent of the enacting legislature, but rather the
existence or not of a current governmental interest in the service of which the
challenged application of the statute may be constitutional ." Id . at 582, 111 S.Ct. at
2469. Thus, in Justice Souter's view, "the interest asserted by [the State] in preventing
prostitution, sexual assault, and other criminal activity . . . is sufficient under O'Brien to
justify the State's enforcement of the statute against the type of adult entertainment at
issue here." Id . at 583, 111 S.Ct . at 2469.
Thus, Justice Souter found Renton , Young , and LaRue , supra, controlling .
Although Renton and Young involved zoning ordinances, the Court in each of those
cases found the states' interest in preventing negative secondary effects associated
with sexually oriented businesses to be a substantial interest, justifying the incidental
limitations on the freedom of expression found to exist in those cases. Justice Souter
found the type of entertainment provided by the Glen Theatre to be of the same
character as that at issue in the aforementioned cases. He thus concluded :
It therefore is no leap to say that live nude dancing of the sort at issue
here is likely to produce the same pernicious secondary effects as the
adult films displaying `specified anatomical areas' at issue in Renton . . . .
In light of Renton 's recognition that legislation seeking to combat the
secondary effects of adult entertainment need not await localized proof of
those effects, the State of Indiana could reasonably conclude that
forbidding nude entertainment . . . furthers its interest in preventing
prostitution, sexual assault, and associated crimes.
Id. at 584, 111 S.Ct. at 2470.
As for the third prong of O'Brien , Justice Souter found that Indiana's interest in
combating the secondary effects associated with sexually oriented businesses was "not
at all inherently related to expression[,]" but rather the secondary effects "are correlated
with the existence of establishments offering such dancing, without deciding what the
precise causes of the correlation actually are ." Id. at 585-86, 111 S.Ct. 2470. Thus,
"[b]ecause the State's interest in banning nude dancing results from a simple correlation
of such dancing with other evils, rather than from a relationship between the other evils
and the expressive component of the dancing, the interest is unrelated to the
suppression of free expression ." Id. at 586, 111 S .Ct. at 2471 .
As to the fourth prong of O'Brien , that the restriction is no greater than is
essential to further the governmental interest, Justice Souter succinctly stated that
limitation requiring pasties and a G-string "is minor when measured against the dancer's
remaining capacity and opportunity to express the erotic message." Id. at 587, 111
S.Ct. at 2471 . Although pasties and a G-string "moderate the expression to some
degree . . . dropping the final stitch is prohibited." Id. However, the dancer and her
-23-
employer were otherwise not limited, short of obscenity laws, in the ways in which the
erotic message could be conveyed.
By contrast, Justice Scalia, concurring only in the judgment, found that the
statute should be upheld not because it could survive First Amendment scrutiny under
any level of evaluation, but because the statute was a "general law regulating conduct
and not specifically directed at expression, [and thus] it [was] not subject to First
Amendment scrutiny at all ." Id . at 572, 111 S .Ct. at 2463. Justice Scalia suggested that
the performances at issue in this case were not expressive activities because it is not
"conduct that is normally engaged in for the purpose of communicating an idea ." Id. at
578, 111 S.Ct. at 2466, n .4. Additionally, Justice Scalia disagreed with the plurality's
conclusion insofar as it supported an analysis that "requires judicial assessment of the
`importance' of government interests - and especially of government interests in various
aspects of morality." Id. a t 580, 111 S.Ct. at 2467. Thus, Justice Scalia would have
held Indiana's indecency statute constitutional, finding Indiana's moral opposition to the
prohibition against nude dancing sufficient under a rational basis review. Id. at 580, 111
S.Ct. at 2468.
Although decided by a plurality of the Court, Barnes is important for what it says
about the second prong of the O'Brien test. Justice Souter's distinction with regard to
the justification necessary to satisfy O'Brien, as well as the Court's appropriate function
in evaluating the justification offered for the regulation, suggests that evidence proffered
by a party contesting the constitutionality of a regulation should be geared toward
disproving the governmental interest at the time the regulation is enacted as opposed to
uncovering an illegitimate governmental motive. This notion can be more adequately
developed, however, following a discussion of the burden-shifting involved in contesting
such a regulation, an issue covered in the cases that follow .
7. City of Erie v. Pap's A.M.
In City of Erie v. Pap's A.M . , 529 U.S. 277,120 S .Ct. 1382, 146 L.Ed.2d 265
(2000), the Supreme Court upheld an ordinance enacted by the City of Erie
(Pennsylvania), which made it an offense to knowingly or intentionally appear in public
in a state of nudity . Similar to the indecency statute at issue in Barnes , supra . as well
as in the case at bar, Erie's statute required that exotic dancers wear, at a minimum,
pasties and a G-string .
The plurality opinion, written by Justice O'Connor, in which Chief Justice
Rehnquist, Justice Kennedy, and Justice Breyer joined, "clarify[ied] that government
restrictions on public nudity such as the ordinance at issue here should be evaluated
under the framework set forth in O'Brien for content-neutral restrictions on symbolic
speech." Id. at 289, 120 S.Ct. at 1391 . With that, the plurality found that the Erie
ordinance generally prohibited all public nudity, "regardless of whether that nudity [was]
accompanied by expressive activity." Id. at 290, 120 S.Ct. at 1391 . The plurality also
noted that Erie's ordinance contained a preamble, which stated that the ordinance was
adopted `°for the purpose of limiting a recent increase in nude live entertainment within
the City, which activity adversely impacts and threatens to impact on public health,
safety and welfare by providing an atmosphere conducive to violence, sexual
harassment, public intoxication, prostitution, the spread of sexually transmitted diseases
and other deleterious effects ."' Id. at 290, 120 S.Ct. at 1391-92 (citation omitted) . The
plurality, in recognizing the findings by the Pennsylvania Supreme Court, noted that one
purpose of the ordinance was to combat negative secondary effects .
As in the Court's previous opinions, the plurality here found that Erie's ordinance
does not attempt to regulate the primary effects of the expression, i.e., the
effect on the audience of watching nude erotic dancing, but rather the
secondary effects, such as the impacts on public health, safety, and
welfare, which we have previously recognized are "caused by the
presence of even one such" establishment.
Id. at 291, 120 S.Ct. at 1392 (citing Renton , 475 U .S. at 47-48, 50, 106 S.Ct. at 930)
(additional citation omitted) . The operator of the establishment in Erie argued that the
ordinance was "aimed at" suppressing expression, and noted the comments of an
attorney for the city, who stated that the public nudity ban was not intended to apply to
"legitimate" theater productions . Thus, Pap's A.M. alleged the city council had an illicit
motive in enacting the regulation . However, as the Court had held in O'Brien and
Renton , su ra, it would not strike down "an otherwise constitutional statute on the basis
of an alleged illicit motive." Pap's A.M. , 529 U .S . at 292,120 S .Ct. at 1392-93 .
Much of the reasoning offered in Pap's A .M . was similar to that found in Barnes .
However, the plurality had to contend with Justice Stevens' dissent, in which he argued
that the ordinance enacted a complete ban on expression . While recognizing that the
public nudity ban had the effect of restricting one particular mode of expression, Justice
O'Connor opined that "simply to define what is being banned as the "message" is to
assume the conclusion." Id. at 293, 120 S .Ct. at 1393. Thereafter, Justice O'Connor
compared the regulation in O'Brien against destroying one's draft card, justified by "the
Government's interest in preventing the harmful `secondary effects' of that conduct
(disruption to the Selective Service System)," to the Erie ordinance, and concluded that
"[a]Ithough there may be cases in which banning the means of expression so interferes
with the message that it essentially bans the message, that is not the case here ." Id.
In support of this position, the plurality noted that "[t]he State's interest in
preventing harmful secondary effects is not related to the suppression of expression. . .
. [Rather,] the ordinance seeks to deter crime and the other deleterious effects caused
by the presence of such an establishment in the neighborhood ." Id . (citing Renton , 475
U .S. at 50-51, 106 S.Ct. 925) . Similarly, the plurality found that, although the ban
minimally affected the expression "that occurs when the last stitch is dropped," the
dancers were still free to perform wearing pasties and G-strings, and thus "[a]ny effect
on the overall expression is de minimis ." Id. at 294,120 S.Ct. at 1393. "If States are to
be able to regulate secondary effects, then de minimis intrusions on expression such as
those at issue here cannot be sufficient to render the ordinance content based."
In upholding the validity of the Erie ordinance under the four-part O'Brien test, the
plurality found that the secondary effects associated with nude dancing are "undeniably
important ." Id. at 296, 120 S .Ct. at 1395. More importantly, however, the plurality
reiterated that
in terms of demonstrating that such secondary effects pose a threat, 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 the city addresses ."
Id. (quoting Renton, 475 U.S. at 51-52, 106 S.Ct. 925). Thus, because the nude
dancing at issue in Erie was of the "same character" as the entertainment at issue in
Renton , Young , and LaRue , supra , "it was reasonable for Erie to conclude that such
nude dancing was likely to produce the same secondary effects." Id. at 297, 120 S .Ct.
at 1395.
Here, again, the plurality addresses the evidentiary basis necessary to support a
government's substantial interest in preventing the asserted secondary effects while
minimally intruding on protected expression. In so doing, the plurality cites O'Brien ,
supra , for the fact that there, the Court did not require evidence
that the integrity of the Selective Service System would be jeopardized by
the knowing destruction . . . of draft cards. It simply reviewed the
Government's various administrative interests in issuing the cards, and
then concluded that "Congress has a legitimate and substantial interest in
preventing their wanton and unrestrained destruction . . . ...
Id . at 298-99, 120 S.Ct. at 1396 (quoting O'Brien, 391 U .S. at 378-380, 88 S .Ct. 1673) .
The Court noted that there were no studies documenting the actual effects of card
mutilation on the Government's asserted interests and that the Court permitted
Congress to take "official notice . . . that draft card destruction would jeopardize the
system ." Id. at 299, 120 S .Ct. at 1396. Thus the Court recognized some leeway is
appropriate so long as the regulation is unrelated to the suppression of expression .
Moreover, the Court acknowledged that O'Brien required no evidentiary showing
that the threatened harm was real. 15 Although Justice Souter, in his dissent, suggests
that empirical analysis is required rather than allowing a city to justify a regulation on the
basis of experiences and findings in other cities, the plurality rejects such a contention
15
Appellee Jameson cites to Edenfield v. Fane, 507 U .S. 761, 770-71, 113 S .Ct. 1792,
1800, 123 L.Ed.2d 543 (1993), wherein the United States Supreme Court states that the
government must "demonstrate that the harms it recites are real and that its restriction
will in fact alleviate them to a material degree ." We find, however, that Edenfield is
distinguishable in that it addressed commercial speech under the standard announced
in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N .Y., 447 U .S.
557, 100 S.Ct. 2343, 65 L.Ed .2d 341 (1980), and is thus not applicable to the facts of
this case.
-28-
on the basis of the Court's prior holding in Nixon v. Shrink Missouri Government PAC,
528 U .S. 377, 394, 120 S.Ct. 897, 145 L.Ed .2d 886 (2000) (noting that the "invocation of
academic studies said to indicate" that certain harms are not real is insufficient to cast
doubt on the experience of the local government). Thus, the Court found the city must
be allowed a "'reasonable opportunity to experiment with solutions to admittedly serious
problems,"' id . at 301, 120 S.Ct. at 1397 (q uoting Renton, 475 U.S . at 52, 106 S .Ct.
925), "but the city must balance its efforts to address the problem with the requirement
that the restriction be no greater than necessary to further city's interest ." Id.
Finally, the plurality opinion recognized that the city council members were the
individuals with first-hand knowledge of the particular problems associated with nude
dancing establishments . Thus, the city council members could make "particularized,
expert judgments about the resulting harmful secondary effects." Id. a t 298, 120 S.Ct.
at 1395. Moreover, the Court noted that Pap's A.M. had not succeeded in casting "any
specific doubt on the validity of [the city's] findings . . . . In the absence of any reason to
doubt it, the city's expert judgment should be credited ." Id. at 298, 120 S.Ct. at 1396 .
Although instructive, the Court's emphasis on the burden-shifting inherent in the
analysis was more fully developed in its most recent opinion to date regarding an
ordinance enacted by the City of Los Angeles.
8. City of Los Angeles v. Alameda Books . Inc .
In City of Los Angeles v. Alameda Books, Inc . , 535 U.S . 425, 122 S .Ct. 1728,
152 L.Ed.2d 670 (2002) (O'Connor, J., plurality), the Court, in another plurality opinion,
upheld a zoning ordinance passed by the City of Los Angeles, which prohibited the
operation of multiple adult businesses in a single building . The narrow question before
the Court concerned the appropriate "standard for determining whether an ordinance
serves a substantial government interest under Renton , supra." Alameda Books, 535
U .S. at 433, 122 S .Ct. at 1733.
The city of Los Angeles provided, as support for the ordinance, a 1977 study,
which reported city crime patterns provided by the Los Angeles Police Department.
"That report indicated that, during the period from 1965 to 1975, certain crime rates
grew much faster in Hollywood, which had the largest concentration of adult
establishments in the city, than in the city of Los Angeles as a whole." Id, at 435, 122
S.Ct. at 1734. The Ninth Circuit Court of Appeals found that the 1977 study did not
support "the inference that a concentration of adult operations within a single adult
establishment produced greater levels of criminal activity because the study focused on
the effect that a concentration of establishments - not a concentration of operations
within a single establishment - had on crime rates." Id. at 436, 122 S.Ct. at 1734-35.
The Supreme Court found the distinction inapposite . "The Court of Appeals'
analysis . . . implicitly requires the city to prove that its theory is the only one that can
plausibly explain the data because only in this manner can the city refute the Court of
Appeals' logic ." Id. at 437-38, 122 S.Ct. at 1735. "The assumption behind [the city's]
theory is that having a number of adult operations in one single adult establishment
draws the same dense foot traffic as having a number of distinct adult establishments in
close proximity . . . ... Id. at 436, 122 S .Ct. at 1735. Thus the city's inference that
reducing the concentration of adult operations in a neighborhood would reduce crime
rates was rational.
This is not to say, however, that the city had to disqualify other possible theories
to support its rationale.
While the city certainly bears the burden of providing evidence that
supports a link between concentrations of adult operations and asserted
secondary effects, it does not bear the burden of providing evidence that
rules out every theory for the link between concentrations of adult
establishments that is inconsistent with its own.
Alameda Books, 535 U.S . at 437,122 S.Ct. at 1735.
More importantly, the Court recognized that a municipality cannot offer "shoddy
data" as justification for an ordinance.
The municipality's evidence must fairly support its rationale for its
ordinance . If plaintiffs fail to cast direct doubt on this rationale, either by
demonstrating that the municipality's evidence does not support its
rationale or by furnishing evidence that disputes the municipality's factual
findings, the municipality meets the Renton standard . If plaintiffs succeed
in casting doubt on a municipality's rationale in either manner, the burden
shifts back to the municipality to supplement the record with evidence
renewing support for a theory that justifies its ordinance.
Id. at 439, 122 S.Ct. at 1736 (citations omitted) .
Justice Souter, whose concurring opinion in Barnes, supra, provided the
narrowest grounds to support the Court's decision and thus constituted the holding
therein, dissented in Alameda Books . In his dissent, he suggests that the city
"demonstrate, not merely by appeal to common sense, but also with empirical data, that
its ordinance will successfully lower crime ." Id. at 439, 122 S .Ct. at 1736 (O'Connor, J .,
plurality). The plurality opinion, however, found that "such a requirement would go too
far in undermining our settled position that municipalities must be given a reasonable
opportunity to experiment with solutions to address the secondary effects" associated
with sexually oriented businesses. Id. (internal quotations omitted) (citations omitted) .
Moreover, the Court noted that "[a] municipality considering an innovative
solution may not have data that could demonstrate the efficacy of its proposal because
the solution would, by definition, not have been implemented previously." Id. at 439-40,
122 S.Ct. at 1736. Furthermore, the Court acknowledged that Los Angeles City Council
members were in a better position to gather and evaluate data on local problems than
the judiciary._ And, in any event, " Renton requires that municipal ordinances receive
only intermediate scrutiny if they are content neutral ." Id. at 440, 122 S.Ct. at 1737.
C. Court of Appeals erred as a matter of law.
1. Content neutral character of Ordinance No. 2000-4.
A number of federal court decisions have followed in the wake of Alameda
Books, supra, including the Eleventh Circuit Court of Appeals' decision in Peek-A-Boo
Lounge of Bradenton, Inc. v. Manatee County, Florida , 337 F.3d 1251 (11th Cir. 2003),
cert . denied, 541 U .S. 988,124 S .Ct. 2016, 158 L.Ed.2d 491 (2004), which our own
Court of Appeals relied upon in finding that Jameson has successfully cast "direct
doubt" on the rationale and findings offered by the McCracken County Fiscal Court in
support of Ordinance No. 2000-4 .
In Peek-A-Boo Lounge , the Eleventh Circuit held, inter alia, that public nudity
ordinances insofar as they are content neutral should be evaluated under the four-part
O'Brien test and that zoning ordinances "regulating the conditions under which adult
entertainment businesses may operate should be evaluated under the standards for
time, place, and manner regulations set forth in Renton and reaffirmed in Alameda
Books." Peek-A-Boo Lounge , 337 F.3d at 1264. Our Court of Appeals has similarly
recognized this distinction, but like the Supreme Court in Barnes, supra, the Court of
Appeals has recognized that the Renton test "has been interpreted to embody much the
same standards as those set forth in [O'Brien]." Barnes, 501 U .S. at 566, 111 S.Ct. at
2460; see also Clark v. Community for Creative Non-Violence , 468 U.S . 288,104 S.Ct.
3065, 82 L.Ed.2d 221 (1984) .
Thus, the Court of Appeals properly began its deliberation by determining
whether Section VII(b) of the McCracken County ordinance was content neutral or
content based . In concluding that the ordinance was content based, the Court of
.,
.M
Appeals found that, unlike the ordinances at issue in Barnes and Pap's-A su ra,
Section VII(b) "only prohibits nudity in a sexually-oriented business if an individual is
`engaged in any live performance ."' Slip Op. at 16. Despite finding the ordinance was
content based, the Court of Appeals held that the ordinance was aimed at controlling
the negative secondary effects associated with sexually oriented businesses, that the
requirement that dancers wear pasties and G-strings was de minimis, and thus could
nonetheless be analyzed under the four-part test set forth in O'Brien . To date, there is
no Supreme Court case which has held that a "content based" regulation may be
16
analyzed under an intermediate level of scrutiny. However, we find that the ordinance
is content neutral for the reasons set forth below, and thus we will analyze it
accordingly.
In Pap's A.M. , supra , a plurality of the Court found that the Erie ordinance, which,
similar to Section VII(b) of the ordinance at issue here, had the effect of requiring exotic
Jameson has attempted to argue that a heightened level of scrutiny, reserved only for
content based regulations, is the appropriate test in this case for analyzing the
McCracken County ordinance. Yet, Jameson failed to file a cross-appeal on this issue,
and we did not grant review on that basis. Thus the question of whether a heightened
level of scrutiny must be applied is not before this Court.
16
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dancers to wear the de minimis covering of pasties and G-strings, was content neutral .
Justice O'Connor explained that, "[t]o determine what level of scrutiny applies to the
ordinance at issue here, we must decide `whether the State's regulation is related to the
suppression of expression."' Pap's A.M. , 529 U.S . at 289,120 S.Ct. at 1391 (quoting
Texas v. Johnson, 491 U.S . 397, 403, 109 S.Ct . 2533, 105 L.Ed.2d 342 (1989)) . "If the
governmental purpose in enacting the regulation is unrelated to the suppression of
expression, then the regulation need only satisfy the `less stringent' standard from
O'Brien for evaluating restrictions on symbolic speech ." Id. (citing Johnson, 491 U.S . at
403, 109 S.Ct. 2533 ; O'Brien , 391 U .S . at 377, 88 S .Ct. 1673). However, "[i]f the
government interest is related to the content of expression . . . then the regulation . . .
must be justified under a more demanding standard." Id. (citing Johnson, 491 U .S . at
403,109 S .Ct. 2533).
Justice O'Connor, relying on the Barnes decision, held that the government
interest inherent in the Erie ordinance was that of "combating crime and other negative
secondary effects caused by the presence of adult entertainment establishments . . .
and not at suppressing the erotic message conveyed by this type of nude dancing ." Id .
at 291, 120 S.Ct. at 1392 . In other words, the ordinance attempted to regulate the
secondary effects commonly associated with "the presence of even one such"
establishment, rather than "the effect on the audience of watching nude erotic
dancing[ .]" Id . (citing Renton , 475 U .S . at 47-48, 106 S.Ct. 925) . And, to clarify the
point, Justice O'Connor held that "government restrictions on public nudity . . . should
be evaluated under the framework set forth in O'Brien for content-neutral restrictions on
symbolic speech." Id. at 289, 120 S .Ct. at 1391 .
In applying this rationale to Section VII(b) of McCracken Ordinance No. 2000-4,
we find that the ordinance has the primary effect of combating crime, prostitution, the
spread of sexually transmitted diseases and declining property values, otherwise known
as the negative secondary effects generally associated with sexually oriented
businesses. "If States are to be able to regulate secondary effects, then de minimis
intrusions on expression such as those at issue here cannot be sufficient to render the
ordinance content based ." Pap's A.M., 529 U .S. at 294, 120 S.Ct. at 1394; see also
Clark, 468 U .S. at 299, 104 S.Ct. 3065 ; Ward v. Rock Against Racism, 491 U.S. 781,
791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989} (holding that even if the regulation
incidentally effects some speakers or messages but not others, the regulation is content
neutral if it can be justified without reference to the content of the expression) . Thus, we
hold that the ordinance at issue here is content neutral .
Although the Court of Appeals erroneously found the ordinance here to be
content based, it nonetheless found the correct standard to be applied was that set forth
in O'Brien. However, the Court of Appeals stopped short of applying O'Brien , and
instead remanded the case to the district court based on its interpretation of the
Supreme Court's opinion in Alameda Books, supra , wherein the Court clarified how a
court is to interpret the third step of the Renton analysis and the second prong of the
O'Brien test. See Peek-A-Boo Lounge , 337 F.3d at 1264-65. We believe the court
erred in this respect as Jameson must present evidence sufficient to cast "direct doubt"
on the municipality's evidence and rationale, not just present any evidence. Thus this
Court will review the ordinance de novo in light of the plurality opinions in Barnes and
Pap's A.M., su ra, wherein the O'Brien test was applied, as well as the burden-shifting
analysis of Alameda Books, supra.
In applying the first prong of O'Brien, we find that the McCracken County
Ordinance No. 2000-4 is clearly within the constitutional power of the county to enact."
Similarly, the third prong of O'Brien is satisfied as the government's interest in
preventing negative secondary effects associated with sexually oriented businesses,
such as Regina's II, is unrelated to the suppression of expression . See Pap's A.M. , 529
U.S . at 293, 120 S.Ct. at 1393. Finally, O'Brien's fourth prong is likewise satisfied as
the requirement of "pasties and G-strings is a minimal restriction in furtherance of the
asserted government interests, and the restriction leaves ample capacity to convey the
dancer's erotic message ." Id. at 301, 120 S.Ct. at 1397. There is, however, dispute as
to whether the ordinance furthers a substantial government interest, O'Brien 's second
prong, as well as that quantum of evidence necessary to satisfy Alameda Books' burden
shifting analysis .
2. Furthering a Substantial Government Interest & Shifting the Burden.
Thus, the primary issue in this appeal is the Court of Appeals' determination that
the second prong of O'Brien - whether the ordinance furthers the government's
substantial interest - was unsatisfied, based on Jameson's alleged ability to cast "direct
doubt' on the rationale and findings offered by the McCracken County Fiscal Court in
" KRS 67.803(3)(z) provides : "The fiscal court shall have the power to carry out
governmental functions necessary for the operation of the county. Except as otherwise
provided by statute or the Kentucky Constitution, the fiscal court of any county may
enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds, and
employ personnel in performance of the following public functions : Regulation of
establishments or commercial enterprises offering adult entertainment and adult
entertainment activities ."
-36-
support of Ordinance No. 2000-4 . The Court of Appeals thus concluded that the burden
then shifted to the McCracken County Fiscal Court to proffer supplemental evidence in
support of its contention that requiring the dancers at Regina's II to wear pasties and Gstrings would further the government's interest in preventing the negative secondary
effects discussed throughout this opinion . We find the Court of Appeals erred in its
ruling for several reasons .
"The asserted interests of regulating conduct through a public nudity ban and of
combating the harmful secondary effects associated with nude dancing are undeniably
important ." Pap's A.M . , 529 U .S. at 296, 120 S.Ct. at 1395 . Furthermore, this
justification is unrelated to the suppression of expression, despite any incidental
burdens the restriction may place on the erotic message conveyed by nude dancing .
"[R]equiring dancers to wear pasties and G-strings may not greatly reduce these
secondary effects, but O'Brien requires only that the regulation further the interest in
combating such effects." Id. at 301, 120 S .Ct. 1397. Moreover, "O'Brien . . . required
no evidentiary showing at all that the threatened harm was real." Id. at 299, 120 S .Ct. at
1396 . We note, though, that the legislative concern of such harm must be real, not just
a pretext for suppression of protected expression .
Moreover, a city may rely upon any evidence "reasonably believed to be
relevant" for demonstrating that completely nude dancing contributes to the
deterioration of residential and commercial neighborhoods . Alameda Books, 535 U .S.
at 438, 122 S.Ct. at 1736; Renton , 475 U.S . at 51-52, 106 S.Ct. at 931 . This includes,
but is not limited to, the experiences of, and studies produced by, other cities, as well as
"detailed findings" in judicial opinions . Pate's A.M. , 529 U .S. at 297, 120 S.Ct. at 1395 ;
Renton, 475 U.S . at 50-51, 146 S.Ct. at 930-31 . However, "[t]he municipality's evidence
must fairly support the municipality's rationale for its ordinance ." Alameda Books, 535
U.S. at 438, 122 S.Ct. at 1736 (emphasis added) .
Admittedly, the initial burden on the city is not a rigid one . "Even in cases
addressing regulations that strike closer to the core of First Amendment values, [the
Court has] accepted a state or local government's reasonable belief that the experience
of other jurisdictions is relevant to the problem it is addressing ." Pap's A.M., 529 U.S. at
297, 120 S.Ct. at 1395 (emphasis added) . Furthermore, a city must be given "a
reasonable opportunity to experiment with solutions" to the problems posed by the
presence of "adult" establishments, such as Regina's 11 . Young , 427 U.S . at 71, 96
S.Ct. at 2453. A city is not required, "before enacting such an ordinance, to conduct
new studies or produce evidence independent of that already generated by other
cities[.]" Renton , 475 U .S. at 51, 106 S.Ct. at 931 . Finally, municipalities may "rely, in
part, on `appeal to common sense,"' in enacting an ordinance. Heideman v. South Salt
Lake City, 348 F.3d 1182, 1186 (10th Cir. 2003) (quoting Alameda Books, 535 U.S. at
439, 122 S.Ct. at 1736) .
The Court of Appeals recognized these principles when it stated that "cities are
entitled to rely on studies from other municipalities and even prior court precedents
which tend to establish the link between sexually oriented businesses and those
negative secondary effects ." Slip Op. at 21 . Yet, it failed to articulate how Jameson's
evidence successfully cast "direct doubt" on McCracken County's evidentiary findings,
which were based in part on the findings of the various courts in Renton . Young , and
Barnes, supra, as well as the County's findings that illicit sexual behavior occurs in
sexually oriented businesses . Absent its rationale as to how Jameson had presented
"actual and convincing evidence" sufficient to cast "direct doubt" on the rationale and
evidence proffered by McCracken County, we are left to our own review of the record.
Although an exact definition of what may constitute "actual and convincing
evidence" sufficient to cast "direct doubt" on a municipality's pre-enactment rationale
has not yet been provided, we can surmise what it necessarily does not encompass . In
Alameda Books, su ra, the United States Supreme Court rejected the Ninth Circuit
Court of Appeals' conclusion that "the city [of Los Angeles had] to prove that its theory
about a concentration of adult operations attracting crowds of customers . . . is a
necessary consequence of the 1977 study" relied upon by the city in enacting an
ordinance prohibiting the operation of multiple adult businesses in a single building .
Alameda Books, 535 U.S . at 437,122 S.Ct. at 1735 . Although the Supreme Court
recognized that a city bears the burden of showing
a nexus between concentrations of
adult businesses and secondary effects, the Court was unwilling to place upon the city
the onerous burden of requiring it to "rule[ ] out every theory for the link between
concentrations of adult establishments that is inconsistent with its own." Id . Further, the
Court reiterated that it, in Renton, it had refused to set such a high bar and that a city
could rely on any evidence, short of "shoddy data," that the city "reasonably believed to
be relevant" for establishing a link between the regulation and a substantial government
interest. Id . at 438, 122 S .Ct. at 1736 (citing Renton, 475 U .S. at 51-52, 106 S .Ct. 925;
Barnes , 510 U .S. at 584, 111 S.Ct. 2456).
Furthermore, the Supreme Court has explicitly rejected the requirement that a
municipality show, by empirical data, that its ordinance will successfully "cure" the
-39-
secondary effects attributed to the establishments at issue in this case . "Such a
requirement would go too far in undermining our settled position that municipalities must
be given a `reasonable opportunity to experiment with solutions' to address the
secondary effects of protected speech." Alameda Books, 535 U .S. at 439, 122 S.Ct. at
1736 (quoting Young , 427 U.S. at 71, 96 S.Ct. 2440) ; see also Pap's A.M . , 529 U.S . at
300, 120 S.Ct. at 1397 (addressing Justice Souter's dissent, wherein he would require
empirical analysis, and recognizing that this idea has been "flatly rejected") ; Nixon, 528
U.S . at 394, 120 S.Ct. 897 (noting that the "invocation of academic studies said to
indicate" that certain threatened harms were not real was insufficient to cast doubt on
the experience of the local government) .
As for the burden-shifting analysis set forth in Alameda Books, we note that the
procedure therein does not advance the notion that challengers, such as Jameson, can
merely devise their own theories of secondary effects . Instead, the challenger must
present "actual and convincing evidence" that specifically rebuts the municipality's
rationale for the ordinance. To require otherwise would essentially require "the [county
to] provide evidence that not only supports the claim that its ordinance serves an
important government interest, but also does not provide support for any other approach
to serve that interest." Alameda Books , 535 U.S . at 438, 122 S.Ct. at 1736 (emphasis
added) . Moreover, the task of casting "direct doubt" on the legislative judgment has
been described as a "heavy burden," involving the rebuttal of more than just some of the
categories of secondary effects relied upon by the municipality . See, e.,g:,, Fantasvland
Video v. County of San Diego, 373 F.Supp.2d 1094, 1110 (S.D. Cal. 2005) .
Justice Kennedy, in his concurring opinion in Alameda Books, recognized that
local governments are in a much better position to evaluate the conditions that exist in
their cities and that courts should not second-guess their assessments of such.
Alameda Books , 535 U .S . at 451-52, 122 S .Ct. at 1743 (Kennedy, J ., concurring) . If the
regulation furthers the government's interest in preventing at least one of the identified
secondary effects, it meets the substantial government interest requirement. See, e.g_,
World Wide Video, Inc. v. City of Spokane , 368 F.3d 1186, 1196 (9th Cir. 2004) (finding
that the elimination of pornographic litter, by itself, represented a substantial
government interest) ; SOB, Inc. v. County of Benton , 317 F.3d 856, 863 (8th Cir. 2003)
(noting that the adult business's evidence addressed only two adverse secondary
effects, property value and crime in the vicinity of the establishment, both of which were
relevant to zoning, but did not diminish the county's interest in combating other adverse
secondary effects such as prostitution and drug use). To that we add that it is irrelevant
whether the local government is actually wrong regarding the extent of all the secondary
effects that have actually occurred or may occur in the future when considering its
decision to regulate the sexually oriented business . Rather, the emphasis is on whether
the decision to regulate is merely a pre-text to suppress the freedom of expression .
And, of course, evidence of the occurrence, or non-occurrence, of the feared secondary
effects will bear on the reasonableness of the legislative belief for the need of such
regulation . But, such evidence must rise to the level of casting "direct doubt' on the
county's evidence supporting that reasonable belief, including whether the county's
interest is, indeed, substantial .
3. Municipality is not required to prove "local" secondary effects.
In reversing and remanding the case to the district court, the Court of Appeals
held that Jameson had successfully shifted the burden back to the McCracken County
Fiscal Court by demonstrating a lack of secondary effects in McCracken County. In
doing so, the Court required on remand that the fiscal court must "proffer supplementary
evidence indicating that Section VII(b)'s ban on totally nude dancing furthers a
substantial government interest in McCracken County Slip Op. at 24 (emphasis in
."
original) . Not only does Alameda Books not support such a conclusion, but the
requirement of a finding of local secondary effects essentially changes substantive law
regarding the secondary effects evidence necessary to further a substantial government
interest. Thus the Court of Appeals erred in so ruling.
Initially, we note that Alameda Books retained the Court's holding in Renton ,
su ra, wherein a substantial government interest could be furthered by "any evidence
reasonably believed to be relevant." Alameda Books, 535 U .S. at 438, 122 S.Ct. at
1736. However, the Court of Appeals erred by relying on Peek-A-Boo Lounge, supra, in
support of a local secondary effects finding requirement .
Peek-A-Boo Lounge is distinguishable not only because the regulation at issue
there was more restrictive, but also because the adult business, which challenged the
regulation, hired actual expert witnesses and submitted volumes of evidence directly
attacking the studies relied upon by the county. See Peek-A-Boo Lounge, 337 F .3d
1251 (11th Cir. 2003). Furthermore, the ruling in Peek-A-Boo Lounge is against the
weight of cases decided under the Renton standard both pre- and post-Alameda Books,
su ra. See,
ea, BZAPS . Inc. v. City of Mankato , 268 F.3d 603, 606 (8th Cir. 2001);
SOB, Inc. v. County of Benton , 317 F.3d 856, 863 (8th Cir. 2003). We thus decline to
adopt the rationale offered by the eleventh circuit in Peek-A-Boo Lounge wherein the
court concluded that "the constitutionality of an ordinance will depend on local
conditions ." Peek-A-Boo Lounge , 337 F .3d at 1272 (quoting Flanigan's Enterprises,
Inc. v. Fulton County, Ga. , 242 F .3d 97, 987 (11th Cir. 2001)).
In Renton , the Supreme Court addressed the Ninth Circuit's holding that the city
of Renton had improperly relied on the findings of other cities "in lieu of evidence about
the effects of adult theaters on Renton," and thus the city's justifications for the
ordinance were conclusory and speculative . Renton, 475 U .S. at 46, 106 S.Ct. at 928
(internal citations omitted) . In rejecting that holding, the Supreme Court concluded that
this would impose an "unnecessarily rigid burden of proof" and that Renton was entitled
to rely on evidence from other jurisdictions as well as prior judicial decisions . Id. a t 5152, 106 S.Ct. at 930-31 . Our Court of Appeals has similarly held that
[u]nder fCity ofl Erie [v. Pap's A .M .I, the government is not required to
demonstrate actual adverse effects in its particular locality. It is enough to
show that it is aware of the problems in other locales and the ordinance
was passed to prevent or reduce those effects . It need not await localized
proof of those effects.
Restaurant Ventures, LLC v. Lexington-Fayette Urban County Government , 60 S.W.3d
572, 578-79 (Ky. App. 2001) (citation omitted) . Furthermore, "[a]II five Justices in the
Alameda Books majority affirmed Renton's core principle that local governments are not
required to conduct their own studies in order to justify an ordinance designed to
combat the secondary effects of adult businesses ." World Wide Video, 368 F.3d at
1193 .
Indeed, requiring a city to conduct its own studies would require that these
conditions already exist, obviating the need for any form of burden shifting analysis .
See Wall Distributors, Inc. v. City of Newport News , 782 F.2d 1165, 1169-70 n.7 (4th
Cir. 1986) (holding that "[t]o insist that governmental interests justifying [adult] use
legislation could only be found in specific local experiences and conditions would be
unrealistically to require deliberate subjection to those experiences and conditions
before attempting to avoid them"). Furthermore, the principle behind the secondary
effects doctrine leaves open the possibility that a given jurisdiction may be subjected, at
some point in the future, to such deleterious effects should a sexually oriented business
decide to open an adult establishment in that location .
In this case, Jameson failed to present "actual and convincing evidence"
sufficient to cast "direct doubt" on the fiscal court's rationale or findings or that the
secondary effects generally associated with sexually oriented businesses are merely a
pre-textual justification for the suppression of protected expression . Merely presenting
evidence showing a lack of some local secondary effects is insufficient to override the
fiscal court's rationale and findings . In validating this argument, the Court of Appeals
erred.
4. Testimony offered by Jameson's witnesses.
During the hearing before the district court on October 18, 2001, Jameson
presented the testimony of several witnesses in an effort to invalidate the secondary
effects rationale relied upon by the fiscal court. Such evidence did not attack the
county's reliance on the studies, but only some of the county's conclusions as to the
probable validity of those studies . The district court then denied Jameson's motion to
declare the ordinance unconstitutional, and this ruling was affirmed by the McCracken
Circuit Court. The Court of Appeals, however, reversed, and found the testimony given
by these witnesses was sufficient to shift the evidentiary burden back to the fiscal court,
and Jameson would likewise have this Court find that the testimony and evidence
offered was sufficient. We cannot agree, and again we find that the Court of Appeals
erred in concluding that the testimony and evidence offered was sufficient to shift the
evidentiary burden -back to the McCracken County Fiscal Court .
Initially, we note that, at the time of the hearing in the district court, Alameda
Books had not been decided. Thus, the burden-shifting analysis set forth in that case
was not available at that time. However, this does not change our analysis of the Court
of Appeals' decision, nor does it change the outcome of this appeal . With that, we turn
to the witnesses and evidence offered by Jameson in his attempt to invalidate the
rationale offered by the fiscal court in support of Ordinance No. 2000-4.
Mr. Brent Stringer, chief dispatcher for Paducah/McCracken E-911
Communications Services, testified to raw police call data, selected by Jameson's
counsel, and which compared the number of calls for police service at Regina's II and
The Playhouse to the number of calls for police service at several non-sexually oriented
nightclubs in the same area of town. Mr. Stringer also testified that not all criminal
investigations are reported on the E-911 call sheets, specifically in regard to undercover
investigations . Nor did he testify as to whom, if anyone, would typically call 911 to
complain about observing or engaging in illicit sexual behavior or other unwholesome or
unhealthy activity on the premises of an adult business.
While the raw police call evidence may certainly be useful for some other
purpose, it is insufficient to establish that the fiscal court used elevated crime as a pretextual justification for the ordinance, if nothing else because it fails to compare
- 45-
incidents occurring in and around sexually oriented businesses to similarly situated
establishments . Furthermore, even if true, the evidence still does not disprove that
enactment of the ordinance requiring the de minimis coverings of pasties and G-strings
may reduce criminal activity and further an important governmental interest. See
Kentucky Restaurant Concepts, Inc. v. City of Louisville, Jefferson County, Ky. , 209
F.Supp.2d 672,680 (W.D. Ky. 2002) .
Moreover, Jameson did not attempt to qualify Mr. Stringer as an expert in
secondary effects associated with sexually oriented businesses or that he had
experience in analyzing raw police call data as it rationally relates to sexually oriented
businesses. While Mr. Stringer may be an expert in his designated field of employment,
he is not otherwise an expert in this critical area, and thus the Court of Appeals' reliance
upon this evidence in finding that Jameson had met his "heavy burden" was erroneous .
Jameson also offered the testimony of Mr. George Wiley, a local real estate
agent, who testified to his experience as to the prices paid for various properties sold on
the "south side of Paducah" from 1994 to 2001 . Significantly, Mr. Wiley merely testified
to what property on the "south side of Paducah" is selling for now and that the property
was not selling fifteen to twenty years prior to 2001 . This evidence failed, however, to
provide any historical or scientific relevance that prices for real estate on the "south side
of Paducah" had increased or decreased over time, aside from the impact of the
entrance of Wal-Mart into the area.
Even were we to accept the Court of Appeals characterization of the evidence
concerning property values and reported calls for police service, we would still find the
evidence insufficient to shift the evidentiary burden in this case. As we have previously
stated, the ordinance would still serve at least one valid governmental interest to satisfy
the "substantial government interest" requirement of O'Brien . See, g& Fantasvland
.,
Video, 373 F.Supp.2d at 1110; World Wide Video. Inc., 368 F.3d at 1196 . Here, that
could be, at the least, preventing the transmission of sexually transmitted diseases .
This is bolstered by the testimony of Jameson and the owner of another area adult
establishment that they had rules in place to prevent contact between dancers and
patrons. Furthermore, "[a]Ithough this evidence shows that the [fiscal court] might have
reached a different conclusion regarding the relationship between adverse secondary
effects and sexually oriented businesses, it is not sufficient to vitiate the result reached
in the [fiscal court's] legislative process." G .M. Enterprises, Inc. v. Town of St. Joseph,
Wisconsin , 350 F.3d 631, 639 (7th Cir. 2003).
We note that Alameda Books does not require this court to re-weigh the evidence
relied upon by the fiscal court, "nor does it empower a court to substitute its judgment in
regards to whether a regulation will best serve a community, so long as the regulatory
body has satisfied the Renton requirement that it consider evidence `reasonably
believed to be relevant to the problem' addressed ." G .M . Enterprises , 350 F.3d at 63940 (citing Renton , 475 U.S. at 51-52,106 S .Ct. 925; Alameda Books, 535 U.S . at 445,
122 S.Ct. 1728 (Kennedy, J ., concurring)) . The judiciary should not second-guess the
judgment of local government officials. See Alameda Books, 535 U.S . at 451, 122 S.Ct.
at 1743 (Kennedy, J., concurring) . And, substantial deference is afforded local officials
in their assessments and inferences of solutions to problems within their city . See
Heideman , 348 F.3d at 1199. Furthermore,
[t]o cast direct doubt, the challenger must present evidence that is directly
contrary to the municipality's evidence, not simply produce a general study
- 47-
refuting all secondary effects . This is not a new or heightened evidentiary
standard as this interpretation is consistent with the holding in Renton ,
which established the proper evidentiary burden of the parties .
City of Elko v. Abed, 677 NW2d 455, 465 (Minn . App. 2004). Moreover, we find, as
others courts have likewise found, that Alameda Books, su ra, did not create a new
evidentiary standard . See Giovani Carandola . Ltd. v. Bason, 303 F.3d 507, 516 (4th
Cir. 2002) (finding that a city or state carries a minimal burden in establishing a
substantial government interest) ; Baby Dolls Topless Saloons, Inc. v. City of Dallas , 295
F.3d 471, 481 (5th Cir. 20!32) (finding that empirical data is not required to show that the
ordinance will lower crime rates); Ben's Bar, Inc. v. Village of Somerset, 316 F .3d 702,
721-22 (7th Cir. 2003) (citing Justice Kennedy's concurrence in Alameda Books wherein
he opined that a municipality's burden in establishing a substantial government interest
is slight); City of Elko v. Abed, 677 N.W.2d 455, 465 (Minn . App. 2004) (concluding that
Alameda Books did not establish a "new" evidentiary standard) .
Finally, we note that were we to accept the Court of Appeals' reading of Alameda
Books, the burden would shift to the municipality to proffer supplementary evidence as
justification for a regulation whenever a challenger presents evidence which casts any
doubt on the municipality's rationale. "Parties to these cases would [then] be on a
never-ending merry-go-round of burden shifting." Abed, 677 N .W.2d at 464.
For the reasons outlined above, we find that McCracken County Ordinance No.
2000-4 satisfies the second prong of O'Brien in that the ordinance furthers the county's
substantial governmental interest in preventing and combating the negative secondary
effects associated with sexually oriented businesses. Furthermore, Appellee Jameson
has not presented evidence sufficient to shift the evidentiary burden back to the fiscal
court by creating a jury issue that the rationale relied upon by the legislative body during
its enactment was a pretext for suppression . The Court of Appeals erred in concluding
otherwise.
CONCLUSION
For the reasons set forth herein, we reverse the judgment of the Court of Appeals
insofar as it remands this case to the district court for further evidentiary hearings and
requires the McCracken County Fiscal Court to proffer supplementary evidence in
support of Ordinance No. 2000-4, and thus we reinstate the prior holding of the district
court regarding the constitutionality of the ordinance .
All concur .
COUNSEL FOR APPELLANT:
Christopher Shea Nickell
Assistant McCracken County Attorney
301 South Sixth Street
Paducah, Kentucky 42002
David L. Kelly
Jason M. Lacy
Denton & Keuler, LLP
P.O. Box 929
Paducah, Kentucky 42003
Gregory D . Stumbo
Attorney General of Kentucky
700 Capital Avenue, Suite 118
Frankfort, Kentucky 40601-3449
Scott D. Bergthold
8052 Standifer Gap Rd ., Suite C
Chattanooga, Tennessee 37421
COUNSEL FOR APPELLEE:
Mark P. Bryant
Emily Ward Roark
Bryant & Kautz
601 Washington Street
P.O. Box 1876
Paducah, Kentucky 42002-1876
Bradley J. Shafer
Shafer & Associates
3800 Capital City Blvd., Suite 2
Lansing, MI 48906-2110
COUNSEL FOR RECLAIM OUR CULTURE KENTUCKIANA, LLC (AMICUS
CURIAE):
Christopher S. Burnside
Griffin Terry Sumner
Frost, Brown & Todd, LLC
400 West Market Street, 32nd Floor
Louisville, Kentucky 40202-3363
COUNSEL FOR INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION,
KENTUCKY ASSOCIATION OF COUNTIES, KENTUCKY LEAGUE OF CITIES, THE
LOUISVILLEMEFFERSON COUNTY METRO GOVERNMENT, & THE LEXINGTONFAYETTE URBAN COUNTY GOVERNMENT (AMICUS CURIAE) :
Brent L. Caldwell
McBrayer, McGinnis, Leslie & Kirkland, PLLC
201 East Main Street, Suite 1000
Lexington, Kentucky 40507-2003
Winston E. King
N. Scott Lilly
William P. O'Brien
Louisville/Jefferson County Metro Government
Assistant County Attorney
531 Court Place, Suite 1001
Louisville, Kentucky 40202
Leslye M . Bowman
Director of Litigation
Lexington-Fayette Urban County Government
Department of Law
200 East Main St.
Lexington, Kentucky 40507
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