                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 16-1065


CRICKET STORE 17, L.L.C., d/b/a Taboo,

                Plaintiff - Appellant,

           v.

CITY OF COLUMBIA,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Terry L. Wooten, Chief District
Judge. (3:13-cv-03557-TLW)


Argued:   December 6, 2016                 Decided:   January 25, 2017


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas R. Goldstein, BELK, COBB, INFINGER & GOLDSTEIN, P.A.,
Charleston,   South   Carolina,  for  Appellant.     Scott   Dean
Bergthold,   LAW   OFFICE   OF  SCOTT  D.  BERGTHOLD,   P.L.L.C.,
Chattanooga, Tennessee, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       This   case     presents      a        First       Amendment      challenge   to    an

ordinance     regulating           adult       businesses          in    Columbia,      South

Carolina.     Appellant Cricket Store 17, LLC, conducts business as

Taboo, a retail shop selling sexually oriented merchandise in

the city of Columbia (“City”).                      Shortly after Taboo opened, the

City     enacted     an      ordinance          comprehensively           regulating      the

operations and locations of adult businesses.                             Taboo, which no

longer     would     be   able      to        conduct      business       at   its   present

location,      filed      suit,       challenging            the        ordinance    as    an

impermissible restriction on free speech.

       The district court granted summary judgment to the City,

relying on City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425 (2002) and City of Renton v. Playtime Theatres, Inc., 475

U.S. 41 (1986), two cases in which the Supreme Court upheld

similar ordinances.          Under Alameda Books and City of Renton, the

district court concluded, the ordinance is consistent with the

First    Amendment,       because        it    is     a    content-neutral       regulation

designed      to     serve     a     substantial            government         interest    in

ameliorating       the    secondary           effects      of   adult      businesses     and

because it leaves adult businesses with a reasonable opportunity

to operate in alternative locations.                       We agree with the district

court and affirm its decision.



                                                2
        Taboo opened for business on December 5, 2011, and thanks

in part to an amortization period for existing businesses in the

City’s ordinance, has been operating continuously since then.

The store sells various products including clothing, novelties,

DVDs, and magazines, all of which are geared toward an adult

audience.        As a retail-only establishment, Taboo provides take-

home merchandise but offers no on-site entertainment, such as

live performances or movies.              Located on a major highway, Taboo

is the City’s only sexually oriented business.

     Less than a month after Taboo opened, the City, for the

first     time    in    over     a   decade,      undertook     a      review    of     its

regulation       of    adult    businesses.        On   December       22,    2011,     the

Columbia City Council held a public meeting, at which a City

consultant       made    a     presentation     about    the     harmful        secondary

effects of adult businesses.               Those effects included, the City

Council    learned,       negative      impacts    on   surrounding          properties;

increased    criminal        behavior;    lewd     conduct     and     illicit     sexual

activity; drug use and trafficking; and litter, noise and other

forms of urban blight.               The presentation emphasized that these

negative    secondary        effects    are    associated       with    all     types    of

adult businesses, including retail-only stores like Taboo.

     The    presentation         also   included     information        about     how    to

address these secondary effects – and, importantly, how to do so

consistent       with    the    First   Amendment.        The    City     Council       was

                                           3
provided     with     land    studies,       crime       impact        reports,     journal

articles and judicial decisions detailing constitutional means

of    regulating      adult    businesses          in    order     to     prevent       their

documented harmful secondary effects.                    In total, the legislative

record      spanned    almost        2,200       pages    and     included        forty-six

judicial     decisions,       twenty-seven            studies     on    the   impact         of

sexually-oriented        businesses       in      various       cities,    and     nineteen

summaries of reports concerning negative secondary effects.

      A    week   later,      on    December       29,    2011,    the     City     enacted

Ordinance Number 2011-105 (the “Ordinance”).                           According to the

Ordinance, its purpose is to “prevent the deleterious secondary

effects of sexually oriented businesses within the City.”                                J.A.

25.       The Ordinance includes extensive findings, based on the

legislative       record,     identifying         a     “wide    variety      of    adverse

secondary      effects”       of     sexually         oriented     businesses          “as   a

category,” including but not limited to “personal and property

crimes,     prostitution,          potential      spread    of    disease,        lewdness,

public      indecency,       obscenity,          illicit        drug    use      and     drug

trafficking, negative impacts on surrounding properties, urban

blight, litter, and sexual assault and exploitation.”                              J.A. 26.

Those effects, the Ordinance goes on to find, are minimized if

sexually oriented businesses are separated from sensitive land

uses and also from each other, so as to avoid a concentration of

adult businesses.

                                             4
       Accordingly,            among       the     restrictions         placed      on      adult

businesses by the 2011 Ordinance are the locational constraints

directly at issue here:                    Under § 11-620 of the Ordinance, no

sexually      oriented         business      may       operate      within   700   feet     of   a

sensitive use – a religious institution, educational facility,

outdoor recreational space, or residential property – nor within

1000       feet    of   another       sexually         oriented      business.       Any     non-

conforming          adult     business       was       given    a   two-year     amortization

period within which to recoup its initial investment and then

relocate to a new site. 1

       Taboo        took      advantage      of        this     amortization       period    and

continued operating for two years, despite the fact that its

location          did   not    meet    §    11-620’s          requirements.        Instead       of

relocating at the end of the two-year period, Taboo filed suit

in district court to set aside the Ordinance on First Amendment

free speech grounds.             Both parties moved for summary judgment.

       In     a    thorough      and       careful      opinion,      the    district       court

granted summary judgment to the City.                          See Cricket Store 17, LLC

v. City of Columbia, 97 F. Supp. 3d 737, 742 (D.S.C. 2015).                                   The

       1
       A second ordinance, adopted by the City in 2012, updated
zoning requirements for sexually oriented businesses to reflect
the locational restrictions of the 2011 Ordinance, and made
minor changes to those locational restrictions not relevant
here. Because the two ordinances set out substantially the same
purpose and findings, relying on substantially the same evidence
of negative secondary effects, we need not differentiate between
them for purposes of our analysis.


                                                   5
court began by laying out the three-step standard under which

the Supreme Court upheld adult-business ordinances in City of

Renton and Alameda Books:                   A regulation of sexually oriented

businesses is consistent with the First Amendment if it (a) is a

time, place and manner restriction rather than an outright ban;

(b) is treated as content-neutral because it is aimed at the

secondary effects of adult businesses rather than their message;

and (c) is designed to serve the substantial government interest

in   ameliorating         secondary       effects      and    does   not    unreasonably

limit   alternative          avenues      of    communication.          Cricket,       97    F.

Supp.   3d     at     745.     The    court     then    meticulously       applied         that

framework to uphold the City’s Ordinance.                        See id. at 745–64.

We summarize the district corut’s lengthy and detailed opinion

only briefly here.

       The first step of the analysis was straightforward.                                  The

City’s Ordinance does not ban adult businesses outright, the

court reasoned, but instead primarily restricts when and where

they    may    operate,       much     like     the    ordinance     approved         by    the

Supreme       Court    in     City   of     Renton.          Accordingly,       the    court

concluded,      the     Ordinance      is      “properly     analyzed      as   [a]    time,

place and manner regulation[],” id. at 745, – a determination

that Taboo does not appear to contest.

       Second,      the      court   concluded        that    because    the     Ordinance

explicitly      targets       the    secondary        effects   of   adult      businesses

                                                6
rather   than      their       speech      itself,     it    is    properly          treated   as

“content-neutral” under City of Renton and Alameda Books.                                      Id.

at   746;   see     City       of     Renton,    475      U.S.    at     929-30      (“[Z]oning

ordinances designed to combat the undesirable secondary effects

of [adult] businesses are to be reviewed under the standards

applicable         to     ‘content-neutral’               time,     place           and   manner

regulations.”);          Alameda        Books,      535     U.S.        at    434    (plurality

opinion)      (same);         id.     at     448-50    (Kennedy,             J.,    concurring)

(discussing treatment as content-neutral of regulations aimed at

secondary effects).

      Taboo     argued         that    the    Ordinance          should       be    treated    as

content-based,          and     thus       presumptively          invalid,         because     its

timing – coming immediately after Taboo opened for business –

and certain statements by City Council members showed that it

was aimed at Taboo.              The district court rejected that argument,

reasoning that even if Taboo’s opening “spurred the City into

action,” that would not demonstrate that the City’s action was

directed at Taboo’s message rather than the secondary effects of

its operations.               Cricket, 97 F. Supp. 3d at 746-47.                          As the

district court noted, id., that conclusion is compelled by our

decision in D.G. Restaurant Corp. v. City of Myrtle Beach, 953

F.2d 140 (4th Cir. 1991), in which we upheld a restriction on

adult businesses despite the fact that it was enacted in direct

response      to        the     planned       opening       of      a        topless      dancing

                                                7
establishment.               The    mere    fact      that    an    adult       business       has

prompted     a    regulation,         we    explained,       does    not    mean      that     the

regulation        is     targeted      at       the    “eradication        of     any    erotic

message” the business may convey.                     Id. at 146.

       Next, the district court considered whether the Ordinance

is “designed to serve a substantial governmental interest” as

required by City of Renton, 475 U.S. at 50, and Alameda Books,

535 U.S. at 434 (plurality opinion).                         As the court recognized,

Cricket, 97 F. Supp. 3d at 751, it is well established that a

municipality           has    a    substantial         interest     in     preventing          the

negative secondary effects of adult businesses.                             And in showing

that   an    ordinance        is    “designed         to   serve”   that    interest,          the

district     court       explained,         a    municipality       need        not     meet   an

“arduous” standard.                Id. at 745, 746.           Instead, it may rely on

“whatever evidence” it “reasonably believe[s] to be relevant to

the problem” before it.               Id. at 746 (quoting City of Renton, 475

U.S. at 51–52).

       As both we and the Supreme Court have emphasized – and as

the district court recognized, Cricket, 97 F. Supp. 3d at 746 –

that generous standard, which reflects the significant deference

owed    to    a    locality’s          policy         expertise     and     democratically

accountable        judgments,         may       be    satisfied     with        “very     little

evidence.”        See Alameda Books, 535 U.S. at 451 (Kennedy, J.,

concurring); Imaginary Images, Inc. v. Evans, 612 F.3d 736, 742,

                                                 8
749 (4th Cir. 2010) (upholding municipal regulation of sexually

oriented entertainment).            In particular, a city need not conduct

its   own    studies,     nor      produce       evidence   independent       of    that

already     generated     by       other   localities       defending       their     own

regulations.      City of Renton, 475 U.S. at 51.                      We have allowed

cities to rely on the experience of other localities, findings

expressed in other court cases, and simple appeals to common

sense.    Id.; Imaginary Images, 612 F.3d at 742.

      After carefully analyzing the extensive record before it,

the district court concluded that the Ordinance was based on

evidence “reasonably believed to be relevant” to the problem of

secondary effects.            Cricket, 97 F. Supp. 3d at 746–51.                    Under

the precedent discussed above, the court determined, the City

was not required to conduct its own research, but could rely on

the record provided to the City Council, including “dozens of

court opinions and orders, reports from various cities around

the country, and several journal articles.”                       Id. at 748.         And

while it was not necessary that the City’s evidence be specific

to retail-only businesses such as Cricket, the district court

reasoned, the City in fact had relied on evidence about the

secondary      effects        of   retail-only        stores      in    enacting     the

Ordinance.       Id.     at    748–49.           Finally,   while      Taboo’s     expert

questioned the validity of the City’s studies and fact-finding,

his   report    established,        “at    most,     that   the     City   could    have

                                             9
reached a different conclusion about the link between sexually

oriented       businesses      and    negative       secondary      effects,”      and   not

that the conclusion the City did reach was without evidentiary

support sufficient to meet the standard laid out in City of

Renton and       Alameda      Books.      Id.       at   749.     “The     Court    is   not

required to re-weigh the evidence considered by the City, and

the    Court    will    not    substitute       its      judgment    for   that     of   the

Columbia       City    Council.”        Id.    (citing,      inter    alia,      Imaginary

Images, 612 F.3d at 747).

       Finally, the district court turned to the last step of the

analysis:        whether       the      City’s        Ordinance       left       available

alternative avenues of communication for adult businesses and,

more specifically, alternative sites on which an adult business

could operate.         As the district court recognized, City of Renton

defines an “available” alternative site broadly, to include land

that    already        is    occupied    and        regardless      of     the     economic

feasibility of relocating or the commercial desirability of a

particular site.            Cricket, 97 F. Supp. 3d at 753 (citing City of

Renton, 475 U.S. at 53-54).                   Against that standard, the court

painstakingly          analyzed        the         forty-six     alternative          sites

identified       by    the     City    and     individually         addressed       Taboo’s

objections to each.            Id. at 755-63.            The court ultimately found

that all forty-six sites were available for use by an adult

business – and that “even if the Court’s conclusion that exactly

                                              10
forty-six sites are available is incorrect, there is no question

that numerous sites are available.”                Id. at 764.   Accordingly,

the court determined that the Ordinance does not unreasonably

limit alternative avenues of communication by adult businesses.

Id.       And   because   the   City    had    satisfied   the   last    of    the

conditions of constitutionality established by City of Renton

and Alameda Books, the court held that the Ordinance does not

violate the First Amendment.           Id. 2

      Taboo     timely    appealed,      raising    substantially   the       same

arguments it advanced in the district court.                Having carefully

considered the controlling law and the parties’ briefs and oral

arguments, we affirm on the reasoning of the opinion of the

district court.

                                                                        AFFIRMED




      2The district court also held that the Ordinance does not
constitute an unconstitutional prior restraint on speech.
Cricket, 97 F. Supp. 3d at 764-65.      In addition, it denied
various discovery motions filed by Taboo.       Id. at 766–67.
Lastly, the court at other points of the proceedings denied
Taboo leave to amend its complaint, and denied a motion by Taboo
to vacate its judgment based on a subsequent amendment to the
City’s Ordinance.    We find no error in the district court’s
rulings on these points.



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