McDoogal's East, Inc. v. County Commissioners of Caroline County , 341 F. App'x 918 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
___________
No. 07-1665
___________
MCDOOGAL’S EAST, INCORPORATED; WILLIAM J. STEINER,
Plaintiffs - Appellants,
v.
THE COUNTY COMMISSIONERS OF CAROLINE COUNTY, John W. Cole,
President, Roger L. Layton, Vice President, Mario J.
Gangemi, Commissioner, Roads Board Chairman, In their
official capacity,
Defendant - Appellee.
____________
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:05-cv-01517-WDQ)
____________
Argued: May 12, 2009 Decided: August 28, 2009
____________
Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Malcolm J.
HOWARD, Senior United States District Judge for the Eastern
District of North Carolina, sitting by designation.
____________
Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Chief Judge Traxler and Senior Judge Howard joined.
____________
ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellants. Kevin Bock Karpinski, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellee. ON
BRIEF: Daniel P. Doty, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellants. Victoria M. Shearer, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellee.
____________
Unpublished opinions are not binding precedent in this circuit.
2
AGEE, Circuit Judge:
William J. Steiner (“Steiner”) appeals the grant of summary
judgment by the United States District Court for the District of
Maryland in favor of the County Commissioners of Caroline
County, Maryland (“the County Commissioners”), holding that
certain zoning enactments (“the Moratorium” and “the Ordinance”
which are hereinafter defined, collectively “the Enactments”)
did not improperly infringe on Steiner’s rights under the First
Amendment of the United States Constitution. Steiner argues
that the Enactments are unconstitutional because the predominant
intent was to limit his protected First Amendment right of
expression and that the evidence of negative secondary effects
of adult-oriented businesses (“AOBs”) does not reasonably
support the zoning scheme adopted by the County Commissioners.
For the following reasons, we affirm the judgment of the
district court.
I.
A.
Caroline County, Maryland (“the County”) is a rural county
in eastern Maryland with a population of about 30,000 residents. 1
1
For convenience, unless an action by the County
Commissioners is at issue, we will simply refer to the County as
the relevant entity.
3
In 2005, the County began the process of revising its
comprehensive plan, as its land-use plan had not been updated
for over a decade and its zoning ordinance had not been revised
for over two decades. Elizabeth Krempasky (“Krempasky”), the
Director of Planning and Codes Administration for the County
from 1985 to 2006, oversaw the revision process.
As early as 2001, the County’s attorney suggested that the
County should address the zoning of AOBs. Krempasky testified
that in 2001 she realized that the County had no AOB
regulations, and that the County should “have some adult
business regulations, even though at that time [they] didn’t
have adult business [sic] that was actually proposing to operate
in Caroline County.” J.A. 99. Prior to 2005, there had never
been an AOB in the County.
In 2004 Steiner became interested in purchasing a property
in the County, which was then being operated as a sports bar
under the name of The 19th Hole. Intending to convert The 19th
Hole to an AOB, Steiner entered into a contract to purchase it
on March 8, 2005.
To operate as an AOB, Steiner determined that he needed to
obtain a Special Use Exception from the County Board of Zoning
Appeals. According to Steiner, when County officials learned of
his interest in operating The 19th Hole as an AOB, they began to
prepare the Moratorium, an ordinance that would prevent the
4
approval of the site as an AOB during the period the Moratorium
was in effect. Steiner asserts that the specific purpose of the
Moratorium was to prevent him from opening an AOB, and that the
County Commissioners and County employees, including Krempasky,
intentionally did not tell him about the plans for the
Moratorium. The County contends that the Moratorium was enacted
solely to give the County more time to consider proper permanent
zoning regulations for AOBs.
On March 9, 2005, Steiner obtained an Occupancy Permit, an
application for a Special Use Exception, submitted a site plan,
and obtained an application for Water Supply and/or Sewage
Verification. On March 10, Krempasky sent an e-mail to the
County’s attorney, informing him of these activities and urging
the completion of the Moratorium documents. On April 4, Steiner
received approval for the site plan and submitted the Special
Use Exception application.
The Caroline County Planning Commission (“Planning
Commission”) held a public hearing for consideration of the
Moratorium on April 13, 2005. At the hearing, “maps of the
locations in the County where adult businesses could locate
under the temporary Moratorium Ordinance were provided to the
Planning Commission members.” Br. of Appellee 4. The Moratorium
imposed a ban on approval of applications, site plans, or
permits for AOBs for six months, restricted the available
5
locations for AOBs, and required particular setback requirements
and advertising restrictions. Under the terms of the
Moratorium, The 19th Hole property was in a zoning district
where AOBs were not permitted to locate.
The minutes from the Planning Commission meeting show a
discussion of the “adverse secondary effects associated with
adult oriented businesses,” and that “[t]he County, through
zoning, cannot totally ban all adult oriented business from its
jurisdiction.” J.A. 1944-45. An e-mail from the County’s
attorney reflects that in drafting the Moratorium, First
Amendment factors were a consideration: “[a] moratorium on an
adult oriented business . . . is particularly difficult to
fashion because it could be construed as a prior restraint on
free speech . . . which is clearly unconstitutional . . . .”
J.A. 2359-60. The text of the Moratorium as adopted states that
there are “secondary effects issues” associated with AOBs and
that the “County requires time to ensure that the desired public
input can be obtained before establishing more enduring textual
amendments to the Zoning Ordinance . . . .” J.A. 65.
The Moratorium was unanimously adopted by the Planning
Commission on April 13, 2005, and then enacted by the County
Commissioners on April 19, 2005. Steiner’s application for a
Special Use Exception had not been approved as of the effective
date of the Moratorium, April 30, 2005.
6
Steiner argues that he did not know about the Moratorium
until after its enactment, and that Krempasky specifically was
directed by the County’s attorney not to tell him about it
unless asked. Instead, the County’s attorney advised Krempasky
that she should send Steiner a letter informing him of the
Moratorium.
Krempasky wrote Steiner a letter, dated April 22, 2005,
which notified him that the Moratorium had been adopted and
provided him a copy. However, Steiner had learned the day
before from his realtor that the Moratorium had been enacted.
Krempasky’s letter also notified Steiner that the Special Use
Exception application could not be processed because it was
incomplete in many respects, but that the Moratorium “prohibits
the location of an adult oriented business at the site you have
proposed” but “there are a number of locations in Caroline
County where an adult oriented business may be located.” J.A.
2139-40.
The Ordinance, the permanent amendment to the County’s
zoning ordinance, was enacted by the County Commissioners on
September 17, 2005, and provides that an AOB can only be located
in the I-2 (light industrial) zoning district. 2 The Ordinance
2
The Ordinance and Moratorium differed in the designated
zoning districts where AOBs could locate. The Moratorium did
not permit locating in an I-2 district, but permitted AOBs in a
(Continued)
7
also contains setback requirements for AOBs which must be at
least 1200 feet from “the closest boundary of a parcel
containing a school, place of worship, park or recreation
facility, day care center, family or day care center, [or]
group,” 600 feet from “the boundary of any parcel in a
residential zoning district,” 1200 feet from “the closest
portion of any other building or structure containing an adult
oriented business,” and 1200 feet from “the closest portion of
any building or structure where alcoholic beverages are sold for
on-premises consumption.” J.A. 79.
The preamble to the Ordinance states the County’s goals and
intent in enacting the Ordinance, particularly that the County
is “concerned with the potential adverse secondary effects of
adult oriented businesses” and noting the numerous “studies
prepared by or for other local governments and in reported
opinions in the various jurisdictions of the United States
[that] provide pertinent information about the adverse secondary
effects . . . .” J.A. 70. The preamble further states that the
“[i]ntent and [p]urpose” of the County was to draft the
ordinance “as a content neutral time, place and manner
restriction[] designed to minimize the harmful secondary effects
C-1 (neighborhood commercial) or C-2 (general commercial)
district.
8
associated with Adult Oriented Businesses while providing and
preserving reasonable alternative channels of communication for
those interested in engaging in adult oriented communication
protected by the federal and State constitutions.” J.A. 75.
B.
On October 24, 2005, Steiner filed a complaint against the
County Commissioners in the United States District Court for the
District of Maryland, alleging that the Enactments violated his
First Amendment rights, and seeking damages and injunctive and
declaratory relief. The district court granted summary judgment
to the County Commissioners, holding that the Enactments were
content-neutral time, place, and manner regulations, served a
substantial government interest, and allowed for reasonable
alternative avenues of communication.
On appeal, Steiner first argues that the district court
used the incorrect standard of scrutiny to review the
Enactments. 3 While facially neutral ordinances are typically
3
The County Commissioners initially argue that Steiner’s
challenge to the Moratorium is moot because it is “no longer in
effect and has not been in effect since 2005.” Br. of Appellee
14. The district court rejected this argument, ruling that
“[a]s Steiner has alleged a continuing injury caused by the
Moratorium, his challenge is not moot.” J.A. 44. We agree with
the district court. If Steiner were to succeed on appeal, he
could have a claim for damages resulting from the enactment of
the Moratorium, which prevented him from establishing a lawful
(Continued)
9
evaluated under the intermediate scrutiny standard, Steiner
contends the Enactments should have been evaluated under the
standard of strict scrutiny because the predominant intent of
the Enactments was to limit expression, and not to limit the
negative secondary effects of AOBs. Alternatively, Steiner
contends that even if the intermediate standard of scrutiny is
applied, the County’s evidence does not fairly and reasonably
support its rationale of prohibiting AOBs in rural and
agricultural areas, and thus does not pass constitutional
muster. Lastly, Steiner argues that a fact finder could decide
that the Enactments do not leave reasonable alternative means of
expression for AOBs available in the County.
On appeal, this Court reviews a district court’s grant of
summary judgment de novo. Nguyen v. CNA Corp., 44 F.3d 234, 236
(4th Cir. 1995). Steiner filed a timely notice of appeal and we
have jurisdiction pursuant to 28 U.S.C. § 1291.
non-conforming use prior to the enactment of the Ordinance. See
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
438 n. 7 (1985) (holding that, because Plaintiff requested
damages, the claim in that case was not moot even though the
relevant regulation had been subsequently changed); Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381, 387 (6th Cir. 2005)
(“[T]he existence of a damages claim ensures that this dispute
is a live one and one over which Article III gives us continuing
authority.”); Jersey Cent. Power & Light Co. v. State of NJ, 772
F.2d 35, 41 (3d Cir. 1985) (“[T]he availability of damages or
other monetary relief almost always avoids mootness.”).
10
II.
A.
The level of scrutiny a court applies to a legislative
enactment in a First Amendment analysis depends on whether the
statute is deemed content-based or content-neutral. A content-
based statute “would be considered presumptively invalid and
subject to strict scrutiny.” City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425, 434 (2002). However, a content-
neutral statute is “properly analyzed . . . as a time, place,
and manner regulation” and receives intermediate scrutiny. Id.Steiner argues that the district court erred in evaluating
the Enactments under an intermediate scrutiny standard. Even
though Steiner acknowledges the Enactments are content-neutral
on their face, he claims that is a pretext, see Reply Br. of
Appellant 13, and the predominant intent of the County
Commissioners was to limit expression and not the limitation of
the harmful secondary effects of AOBs. As evidence to support
this contention, Steiner points to e-mails and communications
that he claims show that his applications to facilitate the use
of The 19th Hole as an AOB were intentionally delayed so the
Moratorium could be passed, and that the County Commissioners
sought to effectively ban AOBs through the Enactments. The
County Commissioners respond that they intended to “enact a
content neutral ordinance” and that “[i]t is not the intent of
11
the County Commissioners to suppress any speech protected by the
First Amendment to the United States Constitution . . . .” J.A.
75.
The district court held that, because the Enactments
restricted AOBs to specific areas, similar to the regulatory
method in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41(1986), the Enactments “are properly analyzed as [] form[s] of
time, place, and manner regulation[s].” J.A. 45. The district
court also disagreed with Steiner’s predominant intent argument,
determining that “[n]o reasonable fact finder could find that
the predominate [sic] concern of the Commissioners was to
restrain the form of expression to be shown at AOBs on the basis
of its content. Accordingly, the Zoning Enactments will be
subjected to intermediate scrutiny . . . .” J.A. 50. We find
no error in the district court’s application of intermediate
scrutiny.
A statute or other regulatory enactment, such as the
Enactments at issue in this case, may treat AOBs differently
from other entities so long as the ordinance is not aimed at the
content of the AOBs but instead enacted to limit their harmful
secondary effects. Renton, 475 U.S. at 47. “Such measures . . .
regulate expression only incidentally, because the expression
‘happen[s] to be associated’ with the adverse effects the state
seeks to address.” Giovani Carandola, Ltd. v. Bason, 303 F.3d
12507, 513 (4th Cir. 2002) (quoting Boos v. Barry, 485 U.S. 312,
320 (1988)). Moreover, the Supreme Court has further held that
a facially neutral ordinance that does “not ban adult theaters
altogether” is “properly analyzed . . . as a time, place, and
manner regulation.” Alameda Books, 535 U.S. at 434. Such
“content-neutral” regulations are not subject to strict scrutiny
and “are acceptable so long as they are designed to serve a
substantial governmental interest and do not unreasonably limit
alternative avenues of communication.” Renton, 475 U.S. at 47.
Nonetheless, an ordinance may still be subject to strict
scrutiny if, regardless of its facial neutrality, the
predominant intent of law-makers in enacting the regulation was
to limit expression and not to limit harmful secondary effects.
See id. at 48. It would be erroneous, however, to read
“predominant intent” as merely a motivating factor in a
legislative enactment. See id. at 47.
In Renton, the Supreme Court reversed the holding of the
Ninth Circuit that if a “motivating factor” in the adoption of
an ordinance was to restrict speech, that factor alone was
sufficient to invalidate the ordinance. Id. at 47-48. Instead,
as we explained in Carandola, a legislative provision is
constitutionally valid if “one purpose of [an ordinance] is to
address the secondary effects that follow from lewd conduct . .
., and that hostility to erotic expression, if a purpose of the
13
restrictions at all, does not constitute the predominant
purpose.” Carandola, 303 F.3d at 515. This is because “[w]hat
motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the
stakes are sufficiently high for us to eschew guesswork.”
Renton, 475 U.S. at 48 (internal citations omitted).
Accordingly, a court “will not strike down an otherwise
constitutional statute on the basis of an alleged illicit
legislative motive.” Id. at 48 (internal citations omitted).
In Renton, as evidence in support of the contention that
the predominant intent of law-makers was not to suppress speech,
the Court noted that the ordinance at issue did not restrict the
number of AOBs, but instead only limited their location to
certain areas. The Court reasoned that if the city’s
predominant intent were to suppress the message conveyed by
AOBs, the city would have sought to restrict their number,
rather than restrict their possible locations. Id. at 48.
Similarly, in the case at bar, the Commissioners did not attempt
to ban all AOBs through the Enactments. Indeed, the County’s
attorney explicitly advised that it “was unwise to completely
ban adult oriented business . . . because such a ban probably
would be construed as an unconstitutional prior restraint of
protected speech.” J.A. 2368. Instead, the County Commissioners
limited AOBs to certain zoning districts and instituted setback
14
rules in relation to other specific uses, such as residences and
schools.
The Enactments state in detail their purpose in limiting
the negative secondary effects of AOBs. This statement of
legislative intent parallels the recognition by the Renton Court
that “[t]he ordinance by its terms is designed to [limit
negative secondary effects].” Renton, 475 U.S. at 48 (emphasis
added). The Moratorium states that it is being enacted in
response to the “significant . . . secondary effects issues
surrounding or arising from the location and operation of
[AOBs].” J.A. 65. The Ordinance states that the County
“developed the textual amendments in this Ordinance as content
neutral time, place and manner restrictions designed to minimize
the harmful secondary effects associated with Adult Oriented
Businesses . . . .” J.A. 75; see Abilene Retail No. 30, Inc. v.
Bd. of Comm’rs of Dickinson County, Kan, 492 F.3d 1164, 1173
(10th Cir. 2007) (citing a similar preamble as evidence that
“the Board’s predominant purpose in enacting [the ordinance] was
to regulate the secondary effects of adult businesses”).
The Ordinance also recites a number of the negative
secondary effects: the risk that AOBs “take advantage of
underage persons,” “increase the spread and the rate of . . .
sexually transmitted diseases,” “lead to the proliferation of”
crime, “devalue surrounding residential and commercial
15
properties,” and drive “away legitimate . . . community
members.” J.A. 74-75. In Carandola, we held that even though
the North Carolina Alcohol Beverage Control Commission did not
proffer “a single study of secondary effects,” and neither “the
statute nor the Rule include[] a preamble or any other language
clearly stating a desire to address secondary effects,”
precedent nonetheless “requires us to evaluate the challenged
restrictions as content-neutral provisions aimed at secondary
effects.” Carandola, 303 F.3d at 514. Here, the Ordinance made
extensive reference to a number of studies from across the
United States that establish the harmful secondary effects of
AOBs.
It is evident from the plain language of the Enactments,
the studies proffered in the Ordinance, and the fact that AOBs
are not banned under the Enactments, that the predominant intent
of the County Commissioners was not primarily to suppress
speech. By focusing on the harmful secondary effects, the
Enactments are “justified without reference to the content of
the regulated speech.” Renton, 475 U.S. at 48 (internal
quotation and citation omitted). We therefore agree with the
district court that the Enactments are properly reviewed as
content-neutral and are to be analyzed under an intermediate
scrutiny standard.
16
B.
Having determined that the district court correctly decided
that intermediate scrutiny was the proper standard of review, we
next undertake to determine whether the zoning scheme of the
Enactments satisfies that standard. That is to say, we examine
whether the Enactments are “designed to serve a substantial
governmental interest and allow[] for reasonable alternative
avenues of communication.” Renton, 475 U.S. at 50.
With regard to the substantial government interest prong,
Steiner does not contest that preventing the proven harmful
secondary effects of AOBs is a substantial governmental
interest. Id. at 48; see also Carandola, 303 F.3d at 516.
Instead, Steiner argues that the secondary effects studies
relied on by the County failed to establish those effects in
rural counties as opposed to more urban areas. Steiner also
argues that “a reasonable jury could conclude that the County’s
evidence does not fairly and reasonably support its rationale of
prohibiting AOBs in rural and agricultural areas and restricting
them to areas immediately next to the County’s population
centers in proximity to clusters of residences, schools,
churches and parks.” Br. of Appellant 42-50. Specifically,
Steiner contends that because the studies cited by the County
generally showed that AOBs should be kept separate from
residential areas, it was irrational for the County to allow
17
them in zoning districts near residential areas, and thus the
County did not actually rely on the cited studies: “[a]
reasonable jury could conclude that the County’s rationale is
based on ‘shoddy . . . reasoning,’ if not a lack of common
sense.” Id. at 47 (quoting Alameda Books, 535 U.S. at 438—39).
Citing Carandola, the district court held
the Commissioners may rely on the evidentiary
foundation established in Renton to conclude that nude
dancing “is likely to produce the same secondary
effects in [Caroline County] unless the plaintiff
produces clear and convincing evidence to the
contrary.” Moreover, the Commissioners were entitled
to rely on the experiences and findings of other
cities. As Steiner has not offered evidence
suggesting that an AOB would not have those effects in
Caroline County, nothing in the record controverts the
evidence upon which the Commissioners relied.
Accordingly, the Commissioners have a substantial
interest in controlling the secondary effects of AOBs.
J.A. 50-51 (quoting Carandola, 303 F.3d at 516) (internal
citations omitted).
The district court thus rejected Steiner’s contention that
the County’s evidence, particularly the secondary effects
studies, failed to establish the necessary foundation of
possible harmful effects by AOBs in the County. The district
court concluded that “it is clear from the evidence that the
Commissioners designed the Zoning Enactments to combat the
secondary effects . . . .” J.A. 51.
The district court also rejected Steiner’s contention that
the zoning choices made in the Enactments by the County
18
Commissioners invalidated the Enactments. The district court
found that “the Commissioners could have chosen to disperse or
concentrate AOBs” and that “‘[i]t is not [the court’s] function
to appraise the wisdom of [the Commissioners’] decision’ as to
the exact methods of regulation.” J.A. 51 (quoting Renton, 475
U.S. at 52). The district court concluded that “no reasonable
fact finder could find that the Zoning Enactments do not serve
the substantial governmental interest in controlling the
secondary effects of AOBs.” J.A. 51.
As to the contention by Steiner that the Enactments did
“not provide for adequate alternative avenues of expression,”
Br. of Appellant 51, the district court noted that “Steiner does
not directly challenge the reasonableness of the overall
quantity of land available; instead Steiner argues that an
unreasonably small amount of land is left for AOBs once setbacks
and other considerations are considered.” J.A. 52. Citing the
example of available locations in Renton and the record evidence
of available AOB locations under the Enactments, the district
court held that “no reasonable fact finder could find that the
Zoning Enactments fail to allow reasonable alternative avenues
of communication.” J.A. 55.
We find no error in the district court’s judgment.
19
1.
a.
The County introduced into evidence hundreds of pages of
studies conducted in many different localities across the United
States, which were considered by the County Commissioners in the
process of adopting the Ordinance. 4 These studies are cited in
the preamble to the Ordinance, and were before the Commissioners
in formulating the Ordinance. The studies come to essentially
the same conclusions about the negative secondary effects of
AOBs, finding an increase in crime, a decrease in nearby housing
values, and an increase in perceived danger by residents. The
negative secondary effects of AOBs are plain based on these
studies in the record.
To minimize the negative effects of AOBs, the studies
recommend many similar courses of action, including setbacks,
dispersion of AOBs, and requiring that AOBs be located in
certain types of zones. Because nearly every study reaches the
4
The studies included those from Manatee County, Florida,
Minneapolis, St. Paul, Las Vegas, Cattaraugus County, New York,
the Town of Islip, New York, New York, New York, New Hanover
County, North Carolina, the City of Austin, Texas, Hamilton
County, Tennessee, Amarillo, Texas, the City of Beaumont, Texas,
Dallas, Texas, El Paso, Texas, Houston, Texas, Newport News,
Virginia, City of Bellevue, Washington, Des Moines, Iowa,
Seattle, Washington, and St. Croix County, Wisconsin.
20
same conclusion about setbacks, 5 there is support in the record
for the principle that setbacks are necessary between AOBs and
other AOBs and between AOBs and certain uses, such as churches,
schools, and parks. Some of the studies concluded that AOBs
should be dispersed throughout a community, 6 while other studies
recommend that AOBs be located in industrial, light-industrial,
5
The St. Paul study provided for setbacks between AOBs and
residential zones and “protected uses” such as schools,
churches, libraries, and the like. The Cattaraugas County study
concluded that there should be a “safe buffer” between AOBs and
the “most sensitive land uses, such as residences, churches,
schools, historic resources and the central business district.”
J.A. 881. The City of Beaumont study found that AOBs should not
be within 500 feet of the boundary line of a residential
district, that they should not be within 300 feet of another
AOB, and that an AOB should not be within 1000 of a church,
school, public park, or other recreational facility. The
proposed Newport News, Virginia, ordinance required that there
be a 500 foot setback between AOBs and schools, churches, parks,
playgrounds, libraries, or other AOBs.
6
The Bellevue study found that multiple approaches could be
used with success, including dispersion approaches,
concentration approaches, modified dispersion/concentration
approaches, and “special” approaches. J.A. 1577-78.
Alternatively, the St. Paul study recommended that there
should be “an increase in the spacing between [AOBs] to minimize
the danger that a cluster of [AOBs] could develop in a single
part of the city.” J.A. 774. The Cattaraugas County study
concluded that the “common regulatory response to mitigate the
possible negative effects” is to ensure that AOBs are dispersed
from one another. J.A. 881. The New Hanover County study found
that the “best zoning approach is dispersal” of AOBs. J.A. 1119.
The Austin study found that AOBs should be “dispersed to avoid
the over concentration of such business.” J.A. 1156. The Des
Moines and St. Croix studies also recommended that AOBs be
dispersed.
21
or commercial zones and that some sort of permit process be
required. 7
b.
The County followed many of the studies’ findings in
crafting the Enactments. The Ordinance limits the location of
AOBs to I-2 zones, which are the County’s “light industrial”
districts. The Moratorium limited AOBs to certain commercial
zoning districts, C-1 and C-2. The Moratorium also imposed a
setback provision, which requires that an AOB be 1000 feet from
a major highway, 2000 feet from a school, 400 feet from a place
of worship, and 400 feet from a residence. The setback
provisions in the Ordinance require that an AOB be 1200 feet
7
The Cattaraugas County study concluded that AOBs should be
located in industrial and light-industrial zones. The
Minneapolis study found that municipalities “should avoid
locating sex businesses in residential areas” and that AOBs
should be “permitted only in locations that are at least 1/10 of
a mile from residential areas (about 500 feet).” J.A. 721-22.
AOBs should be “located in large commercial zones in various
parts of [a municipality]” because it is the commercial area of
a municipality is where assaults and street robberies already
tend to occur. J.A. 724. The New Hanover County study found
that AOBs should be limited to “commercial and/or industrial
zones” or by a Special Use Permit or licensing process. J.A.
1119-20. The Austin study found that AOBs should be “limited
to highway or regionally-oriented zone districts,” and that
conditional use permits should be required. J.A. 1156. The
Amarillo study recommended that a permit and license mechanism
should be developed. The proposed Newport News ordinance
required that AOBs be limited to Commercial and Business
District zones, and that conditional use permits be required.
The St. Croix study recommended that AOBs be located in
commercial zones, and have licensing requirements.
22
from “the closest boundary of a parcel containing a school,
place of worship, park or recreation facility, day care center,
family or day care center, group.” J.A. 79. It also requires
that the an AOB “shall not be within [600] feet of the boundary
of any parcel in a residential zoning district,” and that an AOB
“shall be at least [1200] feet” from another AOB or a building
“where alcoholic beverages are sold for on-premises
consumption.” J.A. 79-80.
The vast majority of the studies institute some sort of
setback scheme, which the County obviously followed. Clearly,
the County had some reliance on the studies for the proposition
that setbacks are necessary between AOBs and other types of
protected uses.
The County also appeared to rely on the studies’
conclusions that AOBs should be located in commercial or
industrial zones, not residential zones, as the plain terms of
the Enactments reflect. With regard to the Ordinance, the
County argues that it “decided that it could best deal with the
problem of adverse secondary effects of adult businesses by
locating the adult businesses in the I-2 zone (where residences
have never been permitted), near the towns, but with setbacks to
keep them reasonably separated from churches, schools, parks,
23
and residences.” Br. of Appellee 43-44. 8 In recommending AOBs be
restricted to the I-2 zone, the Planning Commission specifically
noted the rationale for that zoning choice, which was later
adopted by the County Commission through the Ordinance:
[T]he adverse secondary affects [sic] based on the
studies . . . are most closely related to where there
are existing residences and community facilities, such
as churches, schools, etcetera. And the I-2 Zoning
District does not allow new dwelling units by right.
Any new dwelling unit has to be permitted only by
Special Use Exception there. [T]hat zoning district
was designed to preclude residential developments.
Where as our Commercial Zoning Districts allow
residential dwelling units by right. . . . And
therefore, the . . . negative affect [sic] on property
values . . . is actually . . . greater in Commercial
Districts. So . . . the setbacks that have been
established in the Draft Regulations can be more
easily complied with in the . . . I-2 Zone.
J.A. 1979-80. Preventing AOBs from being adjacent to all
residential uses could not be achieved except in an I-2 zone,
the “only zoning district in which residences have never been
permitted . . . .” Br. of Appellee 42.
Thus, the Enactments reflect the County’s choice of zoning
districts for AOBs to be in line with the vast majority of the
8
It is worth noting that the County’s change of zoning
district from C-1, C-2 under the Moratorium to I-2 under the
Ordinance is a rational choice. If for no other reason, the I-2
selection in the Ordinance could be said to lessen the
likelihood of residential factors affecting AOBs since the I-2
district prohibits residential development, but the C-1 and C-2
districts do not.
24
study recommendations for AOB zoning. Locating AOBs in an
industrial zone, like the County’s I-2, particularly where
residential development is prohibited, appears to be a reasoned
determination. That the locality is rural and not urban would
seem irrelevant as the primary distinguishing factor is the type
of zoning district, which would be the same whether it was I-2
in a rural county or I-2 in an urban area. Further, it is the
activity being regulated, AOBs, that drive the restrictions
regardless of the rural, urban, or suburban nature of the local
government. We noted this general point in Carandola, that it
is the AOB activity which produces the secondary effects,
regardless of where that may be:
where “nude dancing . . . is of the same character as
the adult entertainment at issue in Renton, Young v.
American Mini Theatres, Inc., and California v.
LaRue,” a governmental entity may rely on the
“evidentiary foundation” set forth in those cases to
“conclude that such nude dancing [i]s likely to
produce the same secondary effects” in its
jurisdiction unless the plaintiff produces clear and
convincing evidence to the contrary.
Carandola, 303 F.3d at 516 (quoting City of Erie v. Pap’s A.M.,
529 U.S. 277, 296-97 (2000)).
The Enactments thus adopt many of the standard measures
used by other localities to minimize the adverse secondary
effects of AOBs. See, e.g., Renton, 475 U.S. 43 (affirming
ordinance requiring 1000-foot setbacks); Young v. American Mini
Theatres, Inc., 427 U.S. 50, 62 (1976) (upholding validity of
25
ordinance that utilized 1000-foot setbacks between AOBs, and
500-foot setbacks between an AOB and a residential area);
Independence News, Inc. v. City of Charlotte, 568 F.3d 148, 151
(4th Cir. 2009) (upholding validity of ordinance that limited
AOBs to business, “mixed use,” and industrial zones and
instituted setbacks).
We thus conclude that Steiner’s argument that the County
improperly relied on the studies because they were mostly from
urban, rather than rural, environments is without merit.
Moreover, the Renton Court responded to an analogous argument
from the AOB operator in that case, namely that the Renton
ordinance improperly relied on studies generated by other
municipalities that did not relate to “the particular problems
or needs of Renton.” Renton, 475 U.S. at 50 (internal citations
omitted). The Court held that “Renton was entitled to rely on
the experiences of . . . other cities” because
[t]he First Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or
produce evidence independent of that already generated
by other cities, so long as whatever evidence the city
relies upon is reasonably believed to be relevant to
the problem that the city addresses.
Id. at 51-52.
For the foregoing reasons, we find no merit in Steiner’s
arguments that the Enactments do not serve a substantial
government purpose either because the secondary effects studies
26
were primarily from urban areas or the County’s choice of zoning
districts for AOBs raised some type of constitutional
deficiency.
c.
While we find no merit in the substance of Steiner’s
arguments, it is also important to note that court oversight of
the legislative choices by local governments regulating AOBs is
limited. The Supreme Court has held that municipalities should
be given a certain amount of discretion in determining a zoning
scheme regulating AOBs, “specifically refus[ing] to set . . . a
high bar for municipalities that want to address merely the
secondary effects of protected speech.” Alameda Books, 535 U.S.
at 438 (citing Renton, 475 U.S. at 51-52. Although “[t]he
municipality’s evidence must fairly support the municipality’s
rationale for its ordinance,” Alameda Books, 535 U.S. at 438,
the municipality need not demonstrate “with empirical data . . .
that its ordinance will successfully lower crime. . . . 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.” Id. at 439 (quoting Renton, 475 U.S. at 52).
This deference to a municipality’s proposed zoning plan “is
the product of a careful balance between competing interests.
On the one hand, [a court has] an obligation to exercise
27
independent judgment when First Amendment rights are implicated.
. . . On the other hand, [a court] must acknowledge that [a
municipality] is in a better position than the judiciary to
gather and evaluate data on local problems.” Alameda Books, 535
U.S. at 440 (internal quotations and citations omitted).
The County did adopt commonly approved AOB limitation
measures such as the zoning concentration and setbacks from
protected uses, as described above. That the Commissioners
chose to preserve more rural environments and concentrate AOBs
in industrial zones closer to the towns was a decision within
their legislative discretion. The district court thus also
properly rejected Steiner’s argument for the reasons it cited
from Renton. “It is not our function to appraise the wisdom of
the city’s decision . . . . The city must be allowed a
reasonable opportunity to experiment with solutions to
admittedly serious problems.” Renton, 475 U.S. at 52 (quoting
American Mini Theatres, 427 U.S. at 71).
Because the County is in a better position to determine
solutions to possible negative secondary effects, and because a
certain amount of deference is owed to those solutions, it is
not for this Court to second-guess the County’s rationale. The
district court thus did not err in rejecting Steiner’s argument.
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2.
Finally, Steiner contends that the Enactments are
unconstitutional because they do not provide for adequate
alternative avenues of expression. He asserts that “[t]he
evidence showed that the sites proffered by the County were
unavailable because they lacked infrastructure and would require
Steiner to develop and subdivide quantities of land far larger
than a generic commercial user would reasonably be expected to
bear in the real estate market.” Br. of Appellant 55. Steiner’s
expert testified that a developer would have to “expend an
unreasonable amount of money” in order to open an AOB on the
available sites in the County. J.A. 2084.
The district court held that “to demonstrate a genuine
issue of material fact Steiner must present evidence
demonstrating that the land is actually unavailable, not that
the land available is simply economically undesirable.” J.A. 53.
Ultimately, the district court held that “[d]isregarding his
elimination of sites under the Moratorium and the Ordinance for
economic reasons, Steiner’s expert has identified reasonable
alternatives given that Steiner is the only AOB operator seeking
to enter Caroline County.” J.A. 55. Therefore, “no reasonable
fact finder could find that the Zoning Enactments fail to allow
reasonable alternative avenues of communication.” J.A. 55. We
agree.
29
The First Amendment requires that an ordinance “allow[] for
reasonable alternative avenues of communication.” Renton, 475
U.S. at 50. However, the Renton Court emphasized that “the
First Amendment requires only that [the municipality] refrain
from effectively denying respondents a reasonable opportunity to
open and operate an [AOB].” Id. at 54. “That respondents must
fend for themselves in the real estate market, on an equal
footing with other prospective purchasers . . . does not give
rise to a First Amendment violation.” Id. A plaintiff must show
something greater than mere inconvenience or economic
undesirability. “[W]e have never suggested that the First
Amendment compels the Government to ensure that adult theaters .
. . will be able to obtain sites at bargain prices.” Id.While the Court in Renton did not prescribe a specific
number or percentage of available sites, it did hold in that
case that five percent of the land of Renton was available to
AOBs, and that this amount was “ample” and constituted a
“reasonable opportunity to open and operate” an AOB. Id. at 53-
54. Although in this case the record does not reflect the exact
percentage of available land open to AOBs, the County
demonstrated multiple sites which met the requirements of the
Moratorium and the Ordinance.
Steiner’s expert argues that twelve of these sites are not
feasible because they are “undeveloped and essentially raw land”
30
or have existing uses. J.A. 2084. However, these arguments
mirror the unsuccessful arguments of the plaintiffs in Renton,
who contended that the land was already occupied by existing
businesses, that “practically none” of the land was currently
for sale or lease, and that the sites were not “commercially
viable.” Renton, 475 U.S. at 53. The record supports the
district court’s finding that there were a number of AOB sites
available to Steiner. The fact that Steiner may not have
desired to pay fair market value or develop the sites is not
proof of a lack of available alternate sites. Steiner’s
preference for siting an AOB at The 19th Hole bears no nexus to
whether there are adequate alternative avenues of expression.
Therefore, the district court did not err in determining
that the Enactments did not eliminate alternate avenues for
expression by AOBs.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
31