May 1, 2010 - 12:00pm
Eleventh Circuit Finds Ordinance Banning Alcohol in Adult Establishments Constitutional Posted by:

In Flanigan’s Enterprises, Inc. v. Fulton County, Georgia, ___ F.3d ___, 08-17035, the Eleventh Circuit upheld an ordinance proscribing the sale of alcohol at clubs featuring exotic dancing. The case exemplifies the tension between expressive rights and the power of government to restrict expressive speech it deems immoral or tasteless. 

De gustibus non est disputandem; but irrespective of one’s taste or distaste for exotic dance, the Supreme Court has found, albeit via pluralities in the nude dancing cases, City of Erie v. Pap’s A.M. and Barnes v. Glen Theatre, Inc., that exotic dance is expressive conduct. And, by extension, onerous restrictions of its performance implicate broader threats to artistic freedom. [For a compendious history of exotic dance see Judge Posner’s concurrence in Miller v. Civil City of South Bend (“Public performances of erotic dances debuted in Western culture in the satyr plays of the ancient Greeks, were suppressed by Christianity, and, with Christianity’s grip loosening, reappeared in the late nineteenth and early twentieth centuries.”] To be sure, this does not mean that localities no longer retain a sphere of discretion to regulate the activity. Thus, where “the governmental purpose in enacting the regulation is unrelated to the suppression of expression” it is subject to intermediate scrutiny. In Flanigan’s, the court held that a county ordinance banning the sale of alcohol in strip clubs met this standard.

At issue in Flanigan’s was an ordinance “prohibiting the sale, possession, and consumption of alcohol in adult entertainment establishments.” Several bar owners who operated clubs serving and selling alcohol that also featured live nude dancing brought suit challenging this regulation. In fact, this was the second case brought by these bar owners. The first case resulted in the Eleventh Circuit striking down a substantially similar regulation. See Flanigan’s Enters., Inc. v. Fulton County, 242 F.3d 976 (11th Cir. 2001) (Flanigan’s I). Why the change of heart?

According to the court, in Flanigan’s I the County had ignored empirical evidence based on local conditions showing no relationship between the clubs, crime, or reduced property values. Instead, the County relied on studies from other cities that concluded, “strip clubs were indeed a blight on the surrounding communities.” According to the court, the County could not simply ignore the local studies in favor of studies from substantially different communities to demonstrate a substantial government interest.

By contrast, in Flanigan II, the court noted that the County had commissioned two additional local studies in the wake of Flanigan I to determine the secondary effects of alcohol and live nude dancing. According to these studies, the areas where the clubs engaging in this conduct were located were replete with dilapidated buildings, hourly hotels catering to prostitutes, and “general unsafe conditions.” The County also considered reports from around the country showing the negative secondary-effects of sexually oriented businesses. This factual basis, according to the court, demonstrated that the County had a substantial interest in curbing these deleterious effects; and because the ordinance only targeted adult establishments where alcohol was served, it was unrelated to the suppression of free expression.

This case provides municipalities guidance in how to regulate adult businesses and prevent the secondary effects often associated with them. The key, it would seem, is to marshal sufficient evidence to show more than a speculative fear of crime and property devaluation. This empirical foundation will serve to demonstrate that the regulation is at its core a “social and economic regulation aimed at improving communities and promoting health, safety, and welfare.” This factual basis may also be necessary because in the wake of Lawrence v. Texas courts will likely exact a greater level of scrutiny on regulations founded wholly on governmental concern for public decency and morality. See Lawrence v. Texas, 539 U.S. 558 (2003) (Scalia, J., dissenting). In fact, in Reliable Consultants, Inc. v. Earle, 517 F.3d 746–47 (5th Cir. 2008), the Fifth Circuit found public morality an insufficient state interest to sustain laws regarding sexual privacy, which the Supreme Court—unlike exotic dance—has not endowed with fundamental constitutional status.