 WISE ENTERPRISES, INC., Crase, Inc. d.b.a. Chelsea's, Mardi Gras, Inc. d.b.a. Toppers International
Showbar, et al., Plaintiffs-Appellants,

                                                      v.

  UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY, GEORGIA, John S. Culpepper, III,
Director of Finance for the Unified Government of Athens-Clarke County, Defendants-Appellees.

                                                No. 99-8265.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                                July 13, 2000.

Appeal from the United States District Court for the Middle District of Georgia. (No. 97-00129-3-CV-DF),
Duross Fitzpatrick, Judge.

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

        BLACK, Circuit Judge:

        Appellants Wise Enterprises, Inc., Crase, Inc., Mardi Gras, Inc., and Sandra Gardner appeal the

district court's order granting summary judgment to Appellees Unified Government of Athens-Clarke County

("the County") and John S. Culpepper III, the Director of Finance for the County. Appellants claim the

district court erred in concluding the County's Adult Entertainment Ordinance did not violate Appellants' First

Amendment rights. We affirm.

                                             I. BACKGROUND

        Appellants have operated adult entertainment establishments in Athens-Clarke County since 1992.

Appellants' establishments feature nude barroom dancing contemporaneous with the serving of alcoholic

beverages. On November 4, 1997, the County amended Title 6 of its code by adopting an Adult

Entertainment Ordinance ("the ordinance"). The ordinance provides that a license is required for the

operation of an adult entertainment establishment, and that no such license shall be issued to businesses

operating in the Central Business District, a zoning district set out in the zoning ordinances of the County.

See Athens-Clarke County Code § 6-11-9(d) (1997). The ordinance further prohibits the holder of an adult


   *
    Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
entertainment establishment license from serving, selling, distributing, or permitting the consumption or

possession of alcohol or controlled substances on its premises. See id. § 6-11-21 (1997).

        Approximately one month after the enactment of the ordinance, Appellant Crase simultaneously

submitted to the County's finance department a renewal application for its alcoholic beverage license and an

application for an adult entertainment establishment license. In response, Appellee Culpepper sent Crase a

letter stating it could not legally be licensed both to sell alcoholic beverages and to offer adult entertainment

at the same location. The letter advised Crase that if it wanted to obtain an adult entertainment establishment

license, it would have to withdraw its renewal application for an alcoholic beverage license.

        Appellant Mardi Gras also was rejected in its attempt to obtain an adult entertainment establishment

license. The letter Mardi Gras received from Appellee Culpepper indicated that Mardi Gras did not qualify

for an adult entertainment establishment license because its establishment was located in the Central Business

District. Appellants consequently filed an action challenging the validity of the County's ordinance. The

County moved for summary judgment, and the district court granted its motion. This appeal followed.

                                               II. DISCUSSION

        Appellants contend the district court erred in granting summary judgment to Appellees. They argue

the section of the ordinance prohibiting them from serving alcohol and providing adult entertainment at the

same location violates their rights under the First Amendment of the United States Constitution. Appellant

Mardi Gras also challenges the portion of the ordinance that precludes adult entertainment establishments

from being located in the Central Business District.

        We review a district court's grant of summary judgment de novo, applying the same standards as the

district court. See Harris v. H&W Contracting Co., 102 F.3d 516, 518 (11th Cir.1996). We will affirm the

district court if the record demonstrates there is no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. See Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564

(11th Cir.1990).



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A.      Restriction On Establishments That Serve Alcohol

        Relying heavily on the dissenting opinion in Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993

(11th Cir.1998), cert. denied, --- U.S. ----, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000), Appellants contend the

section of the County's ordinance that prohibits them from serving alcohol and providing adult entertainment

at the same location is a regulation of protected expression. Appellants argue heightened scrutiny should be

applied to the County's ordinance rather than the intermediate scrutiny test articulated by the Supreme Court

in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Appellants' argument fails

in light of established precedent of this Court and the Supreme Court's recent decision in City of Erie v. Pap's

A.M., --- U.S. ----, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).

         In Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir.1998), cert. denied, --- U.S.

----, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000), and Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th

Cir.1982), we upheld against constitutional attack ordinances similar to the one challenged by Appellants.

The ordinances were content-neutral and thus properly analyzed under the O'Brien intermediate level of

scrutiny. See Sammy's, 140 F.3d at 996; Grand Faloon, 670 F.2d at 947. The O'Brien standard applies

"when a governmental entity seeks to regulate non-communicative elements of an activity and thereby

imposes incidental burdens on protected expression." Grand Faloon, 670 F.2d at 947 (citing O'Brien, 391

U.S. at 376, 88 S.Ct. at 1678-79). Ordinances that prohibit nude dancing where alcohol is served or

consumed are "independent of expressive or communicative elements of conduct," and thus are

content-neutral. Grand Faloon, 670 F.2d at 947. Like the ordinances discussed in Sammy's and Grand

Faloon, the County's ordinance is a content-neutral ordinance. It "restricts only the place or manner of nude

dancing without regulating any particular message it might convey." Sammy's, 140 F.3d at 998. The

ordinance does not attempt to regulate any potential communicative elements of nude dancing, nor does it

limit the number of establishments where nude dancing can occur.




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        The Supreme Court's recent decision in City of Erie v. Pap's A.M., --- U.S. ----, 120 S.Ct. 1382, 146

L.Ed.2d 265 (2000), further mandates that we conclude the County's ordinance to be content-neutral. In

Pap's, the Supreme Court held that the city's ordinance prohibiting public nudity, as applied to nude dancing,

should be analyzed under the O'Brien test because the ordinance was aimed not at suppressing the message

conveyed by nude dancing, but rather at the secondary effects caused by public nudity in general and by adult

entertainment establishments in particular. See Pap's, 120 S.Ct. at 1391-1394. The Court reasoned that a

regulation which furthers legitimate government interests unrelated to the message conveyed by nude dancing

should be deemed content-neutral, even if the regulation has an incidental impact on protected expression.

See id. at 1394-95.

        In this case, the preamble to the County's ordinance provides:

        [I]t is the finding of the Mayor and Chair and Commission that public nudity ... under certain
        circumstances, particularly circumstances related to the sale and consumption of alcoholic beverages
        ... begets criminal behavior and tends to create undesirable community conditions. Among the
        undesirable conditions identified with nudity and alcohol are depression of property values in the
        surrounding neighborhood, increased expenditure for the allocation of law enforcement personnel
        to preserve law and order, increased burden on the judicial system as a consequence of the criminal
        behavior ... and acceleration of community blight by the concentration of such establishments in
        particular areas. Therefore, the limitation of nude conduct in establishments licensed to sell alcohol
        for consumption on the premises is in the public welfare and it is a matter of governmental interest
        and concern to prevent the occurrence of criminal behavior and undesirable community conditions
        normally associated with establishments which serve alcohol and also allow and/or encourage nudity.

Athens-Clarke County Code § 6-11 (1997). The ordinance also states that its purpose is to protect the public's

health, safety and welfare. See id. It is clear from these statements the County's ordinance is aimed at the

secondary effects of nude dancing combined with the consumption of alcoholic beverages, not at the message

conveyed by nude dancing. We therefore hold the district court was correct in using the intermediate scrutiny

test set forth in O'Brien.

         Under O'Brien, an ordinance is valid if: (1) it serves a substantial interest within the power of the

government; (2) the ordinance furthers that interest; (3) the interest served is unrelated to the suppression

of free expression; and (4) there is no less restrictive alternative. See O'Brien, 391 U.S. at 377, 88 S.Ct. at



                                                      4
1679. The County's stated interests in this ordinance are protecting the public welfare, preventing undesirable

community conditions including the depression of property values, and reducing criminal behavior. Such

interests are substantial government interests that satisfy the first part of the O'Brien test. See, e.g., Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) (concluding the

government has a substantial government interest in "protecting order and morality,"); Grand Faloon, 670

F.2d at 949 (noting "[t]he regulation of activity which has demonstrated a capacity to induce breaches of the

peace is a traditional and legitimate subject for the exercise of a municipality's police power.").

        The second prong of the O'Brien test mandates the challenged regulation further the government's

interests. See O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. For the County to meet its burden under this

element, it must have "some factual basis for the claim that [adult] entertainment in establishments serving

alcoholic beverages results in increased criminal activity." Grand Faloon, 670 F.2d at 949 (emphasis in

original). The statements contained in the preamble and the minutes of the county commission meeting at

which the ordinance was adopted indicate the County's enactment of the ordinance was based upon the

experiences of other urban counties and municipalities, copies of studies from other jurisdictions examining

the problems associated with public nudity in conjunction with the sale of alcohol, and a review of

information received by the Athens-Clarke County Police Department detailing police visits to adult

entertainment establishments in the County. The record thus demonstrates the County had a reasonable basis

for believing the ordinance would sufficiently further its interests. See Sammy's, 140 F.3d at 997.

        Under the third prong of the O'Brien test, the government interests must be unrelated to the

suppression of free expression. See O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. There is no evidence in the

record that the County passed the ordinance to discourage nude dancing or to hinder the communicative

aspects of such conduct. Rather, the ordinance focuses on the secondary effects of combining nude dancing

and alcohol consumption. The County was "attempting only to regulate the sale of alcohol in inappropriate




                                                       5
places and it has determined that it is inappropriately sold in places where nude dancing is offered." Sammy's,

140 F.3d at 998. Such a regulation is unrelated to the suppression of free expression.

          The fourth prong of the O'Brien test requires that the incidental restriction on First Amendment rights

be no greater than necessary to the furtherance of the government interests. See O'Brien, 391 U.S. at 377,

88 S.Ct. at 1679. The ordinance satisfies this requirement because it is narrowly tailored to the problem

targeted by the County—the undesirable community conditions associated with establishments that combine

alcohol and nude dancing. There is no less restrictive alternative. The ordinance does not prohibit all nude

dancing, but only restricts nude dancing in those locations where the unwanted secondary effects arise.

          The County's ordinance satisfies all four prongs of the O'Brien test. The district court was therefore

correct to grant summary judgment to Appellees on Appellants' First Amendment claims.

B.        Restriction On Establishments Located In The Central Business District

          Appellant Mardi Gras also challenges the portion of the County's ordinance that prohibits adult

entertainment establishment licenses from being issued to businesses operating in the Central Business

District. We conclude the district court correctly determined Appellant's claim is defeated by the Supreme

Court's decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29

(1986).

          In Renton, the Supreme Court held that a content-neutral zoning ordinance is "properly analyzed as

a form of time, place, and manner regulation." Id. at 46, 106 S.Ct. at 928. Thus, like all content-neutral time,

place, and manner regulations, zoning ordinances "are acceptable so long as they are designed to serve a

substantial governmental interest and do not unreasonably limit alternative avenues of communication." Id.

at 47, 106 S.Ct. at 928. The County's ordinance is content-neutral because, as previously noted, it focuses

on the secondary effects of adult entertainment establishments. Cf. id. at 47-48, 106 S.Ct. at 929. We have

determined the County's interests in passing the ordinance were substantial. We further conclude the zoning

provision does not unreasonably limit alternative avenues of communication. The ordinance solely prohibits



                                                        6
Appellant from obtaining an adult entertainment establishment license for an establishment within the Central

Business District. Appellant may operate an adult entertainment establishment in other locations outside the

Central Business District, subject to other applicable zoning restrictions. The zoning provision of the

ordinance thus satisfies the requirements of the First Amendment.

                                            III. CONCLUSION

        The County's ordinance prohibiting nude dancing at establishments that serve alcohol satisfies the

four-part O'Brien test. The zoning provision of the ordinance is constitutional under Renton. Therefore, the

County's Adult Entertainment Ordinance does not violate Appellants' First Amendment rights.

        AFFIRMED.




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