                                                                   [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               -----------------------     01/18/2000
                                   No. 98-4211          THOMAS K. KAHN
                               -----------------------      CLERK
                       D. C. Docket No. 97-7164-CIV-FAM

DAVID VINCENT, INC.,
d.b.a. Omni Adult Bookstore,
JOHN DOE, on behalf of himself
and all others similarly situated,

                                               Plaintiffs-Appellants,

                                versus

BROWARD COUNTY, FLORIDA,

                                            Defendant-Appellee.
             __________________________________________

                               -----------------------
                                   No. 98-4308
                               -----------------------
                       D. C. Docket No. 97-7164-CIV-FAM

DAVID VINCENT, INC.,
d.b.a. Omni Adult Bookstore,
JOHN DOE, on behalf of himself
and all others similarly situated,
DMH, INC., a Florida corporation,
d.b.a. Broward Adult Bookstore

                                               Plaintiffs-Appellants-
                                                              Cross-Appellees,


                                       versus

BROWARD COUNTY, FLORIDA,

                                                              Defendant-Appellee-
                                                              Cross-Appellant.

                                   ------------------------
                       Appeals from the United States District Court
                           for the Southern District of Florida
                                   -------------------------
                                    (January 18, 2000)



Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and PROPST*,
Senior District Judge.

KRAVITCH, Senior Circuit Judge:

       Plaintiffs-appellants are adult bookstores in unincorporated Broward

County, Florida, challenging the constitutionality of Broward County’s licensing

and zoning ordinances for adult businesses.1 The district court concluded that

       *
      Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.
       1
         John Doe, described in the Second Amended Complaint paragraph 7 as a representative
of all members of the adult public “who receive and enjoy . . . expressive materials” from the
bookstores, is also a plaintiff and appellant. The district court orders resolving the claims in this
case describe the plaintiffs simply as three adult bookstores, however, and appellants’ brief does
not mention John Doe. Because the bookstores figure more prominently in the materials before
this court, and because Broward County’s licensing and zoning ordinances operate directly on
the bookstores, for the sake of convenience this opinion will refer to the appellants as the adult

                                                  2
plaintiffs’ previous bid for a preliminary injunction of the licensing ordinance in

state court barred them from seeking both preliminary and permanent injunctions

in federal court. After a bench trial, the district court ruled that Broward County’s

zoning ordinance for adult businesses was constitutional both facially and as

applied to plaintiffs.

       The adult bookstores raise three issues on appeal. First, they argue that

neither preclusion nor the Rooker-Feldman doctrine bar their challenge to Broward

County’s licensing ordinance. Second, they question the district court’s ruling that

Broward County’s zoning ordinance is facially constitutional. Finally, appellants

argue that, as applied, the zoning ordinance violates the First Amendment because

it denies adequate opportunities for adult expression.

       We agree with appellants that their prior efforts to obtain a temporary

injunction of Broward County’s licensing ordinance does not bar a subsequent

claim for a permanent injunction. This circuit’s precedent does, however, support

the district court’s ruling that the zoning ordinance is facially constitutional.

Furthermore, we cannot say that the district court’s findings as to the number of

sites available for adult businesses under the zoning ordinance are clearly

erroneous, and we agree that those sites provide an adequate opportunity for the


bookstores without reference to John Doe.

                                            3
appellants’ protected expression. We reverse the order precluding appellants’

challenge to Broward County’s licensing ordinance and remand for further

proceedings. We affirm the district court ruling that Broward County’s zoning

ordinance is constitutional both facially and as applied.



                                 I. BACKGROUND



      In 1993, Broward County adopted both a licensing and a zoning ordinance

for adult businesses. See Broward County, Fla., Ordinance 93-18 (July 13, 1993)

(licensing); Broward County, Fla., Ordinance 93-3 (January 26, 1993) (zoning).

The licensing ordinance (93-18) establishes detailed requirements for the physical

structures of adult businesses, restricts the activities that can take place on the

premises, and provides a licensing regime with application procedures and

inspections. The zoning ordinance (93-3) merely modified Broward’s existing

zoning regime for adult businesses, which this court found constitutional in

International Eateries of Am. v. Broward County, 941 F.2d 1157, 1165 (11th Cir.

1991). Both the former and the new zoning ordinances require adult businesses to

locate more than 500 feet from residentially zoned districts, and 1,000 feet from

each other and from churches, schools, and child care facilities. The new


                                            4
ordinance eliminates a “waiver” provision that had allowed adult businesses to

locate at a non-conforming site if the surrounding community approved. The

former zoning ordinance also allowed existing businesses to remain on non-

conforming sites, while the new 93-3 requires adult businesses to move to a

conforming location within a five-year amortization period.

      Broward County’s adult bookstores (the plaintiffs-appellants in this case)

and adult dance establishments challenged the constitutionality of the licensing

ordinance in state court in separate lawsuits, seeking both a preliminary injunction

and permanent relief. Broward County removed the bookstores’ case to federal

court, but the plaintiffs successfully sought a remand. After a hearing, the Florida

trial court denied the request for temporary injunctive relief. See Bordo, Inc. et al.

v. Board of County Comm’rs of Broward County, No. 93-21553-08 (Fla. 17th Cir.

Ct. Sep. 28, 1993) (Order on Plaintiffs’ Motion for Temporary Injunction). The

Florida Court of Appeals affirmed the denial of a preliminary injunction in the case

brought by the adult dance venues. See 3229 North Federal Highway, Inc. v. Board

of County Comm’rs, 646 S.2d 415 (Fla. 4th Dist. Ct. App. 1994). It then affirmed

the denial of the bookstores’ preliminary injunction on that authority. See Bordo,

Inc. v. Board of County Comm’rs, 647 So. 2d 215 (Fla. 4th Dist. Ct. App. 1994).

The Court of Appeals did certify a question to the Florida Supreme Court, but after


                                           5
a two-year delay the state Supreme Court declined to consider the matter.2 See

Bordo, Inc. v. Board of County Comm’rs Broward County, 699 So. 2d 689 (Fla.

Sep. 28, 1997) (unpublished decision denying petition for review).

        The bookstores then dismissed their state court claim for a permanent

injunction of the licensing ordinance and filed this case in federal court seeking

preliminary and permanent injunctions of the licensing ordinance and also

challenging the new zoning ordinance.3 The district court granted the County’s

motions to dismiss and for summary judgment on the licensing ordinance claims,4

concluding that the entire challenge to 93-18 was precluded by the prior state court

litigation. The district court also decided that International Eateries controlled the

facial challenge to the zoning ordinance, 93-3. Because the prior zoning ordinance

had been upheld, the new (and very similar) ordinance must be constitutional as

well.


        2
          The question certified to the Florida Supreme Court was whether an ordinance requiring
modifications inside a building “affects the use of land.” See 3229 N. Federal Hwy., 646 So. 2d
at 227-28 (on motions for rehearing). Florida law sets out special procedures for adopting land
use ordinances. Apparently Broward County did not file its briefs in the Supreme Court for two
years, creating the lengthy gap between the Fourth District Court of Appeals’ certification and
the denial of rehearing. See Brief of Respondent at 75, Bordo Inc., et al. v. Board of County
Comm’rs. of Broward County, Fla., 699 So. 2d 689 (Fla. Sep. 28, 1997) (certifying that service
of the brief occurred on April 3, 1997).
        3
            The voluntary dismissal was without prejudice.
        4
       For simplicity’s sake, we will treat the district court’s order as having granted summary
judgment on the licensing ordinance claims.

                                                  6
      The court held a bench trial for the as-applied challenge to the zoning

ordinance, and ruled in favor of Broward County. The focus of the trial was

whether Broward County’s zoning regime left a sufficient number of sites for adult

businesses to satisfy the First Amendment’s requirement that time, place, and

manner restrictions leave adequate avenues for protected expression. Each side

presented an expert witness. Bruce McLaughlin, testifying on behalf of the adult

bookstores, opined that only one site was truly available for an adult business

under Broward’s zoning regime. Leigh Kerr, testifying for Broward County,

claimed that nine sites were available for adult businesses.

      Establishing an adult business at many of the sites would be complicated,

requiring the purchase of multiple plots of land, redivision of parcels, construction

and landscaping, and so on. Even with that work, small lots would constrain the

size of some adult businesses. Plaintiffs argued that because of permit and spot

rezoning requirements, the government would have too many opportunities to

stymie an adult business trying to locate at a particular site. The bookstores also

claimed that a number of the sites posed unreasonable obstacles. For example, a

covenant against immoral uses burdened one site, a state agency occupies part of

another, and hazardous waste from a car repair facility may contaminate a third

site. McLaughlin’s testimony did not sway the district court, which found that


                                          7
seven to nine sites were available for adult businesses in unincorporated Broward

County. The district court also concluded that the number of sites available for

adult businesses provided an adequate opportunity for adult expression.

      Evaluating whether the county provides a constitutionally sufficient number

of sites for adult businesses is complicated by the fact that the unincorporated area

of Broward County is shrinking. The county encourages municipalities to annex

unincorporated land, and hopes to one day control no territory at all. The size of

the unincorporated territory is significantly smaller than when this court considered

International Eateries, and smaller than in 1993, when the county adopted the

challenged ordinances. The population also has been dropping, but at a slower rate

than the land loss.



                                  II. DISCUSSION



      We discuss three issues in turn. First, does claim preclusion, issue

preclusion, or the Rooker-Feldman doctrine bar appellants’ challenge to Broward

County’s licensing ordinance? Second, does this circuit’s International Eateries

decision support the district court’s ruling that Broward County’s zoning ordinance

is facially constitutional? Finally, does Broward County’s zoning ordinance, as


                                          8
applied, provide the appellants with adequate opportunities for protected adult

expression, as required by the First Amendment?5



A. The Licensing Ordinance



       The district court granted summary judgment on the licensing claim on

preclusion grounds. The court noted that plaintiffs’ claim for a permanent

injunction was virtually identical to the claim they had voluntarily dismissed from

their state court action after losing the bid for a temporary injunction.6 The court

also observed that it was plaintiffs who originally filed their case in state court and

fought removal to federal court. The district court suspected that plaintiffs had

“test[ed] the waters” in state court, and were now searching for a more sympathetic

forum. Vincent v. Broward County, No. 97-7164 at 8 (S.D. Fla. 1998) (Order

Granting In Part Defendant’s Motion for Summary Judgment and Motion to

Dismiss).

       5
          On appeal, Broward County also raises two alternative grounds for affirming the grant
of summary judgment on plaintiffs’ challenge to the zoning ordinance (93-3). Broward County
argues that the 93-3 claim is barred under the Rooker-Feldman doctrine because of the prior state
court litigation involving the county’s licensing ordinance. Broward County also argues that the
challenge to 93-3 as applied is not ripe because the plaintiffs did not exhaust all administrative
remedies. We do not need to address these arguments, however, because we affirm the district
court’s findings and legal conclusions as to 93-3.
       6
           The voluntary dismissal of the state court action was granted without prejudice.

                                                  9
       The district court’s order makes reference to claim preclusion, issue

preclusion, and notions of federalism embodied in the Rooker-Feldman doctrine,

but none provides an adequate justification for barring plaintiffs’ claim for a

permanent injunction of Broward County’s licensing ordinance.7

       The district court found support for the preclusion in Gorin v. Osborne, 756

F.2d 834 (11th Cir. 1985), but the case is inapposite. Gorin held that a fired state

employee could not raise a section 1983 claim stemming from her discharge in

federal court when a state court had already affirmed a State Personnel Board


       7
         Claim and issue preclusion are often lumped together under the rubric of res judicata.
See Gjellum v. City of Birmingham, 829 F.2d 1056, 1059 n.3 (11th Cir. 1987). The Gjellum
decision described the two types of preclusion as follows:

       Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a
       matter that has been litigated and decided. This effect is also referred to as direct
       or collateral estoppel. Claim preclusion refers to the effect of a judgment in
       foreclosing litigation of a matter that never has been litigated, because of a
       determination that it should have been advanced in an earlier suit.

Id. For additional definitions of issue preclusion, see Kremer v. Chemical Construction Corp.,
456 U.S. 461, 466 n.6 , 102 S. Ct. 1883, 1889 n.6 (1982); and Restatement (Second) of
Judgments § 27 (1982).
        The district court’s order had the effect of totally precluding the adult bookstores’
permanent injunction claim, and the language in the order suggests that claim preclusion was
what the court had in mind. The district court wrote that “Plaintiffs’ 93-18 claims are barred.”
Vincent v. Broward County, No. 97-7164 at 7 (S.D. Fla. 1998) (Order Granting In Part
Defendant’s Motion for Summary Judgment and Motion to Dismiss) (emphasis added.)
Throughout the order, the court refers to plaintiffs’ claim as a whole without identifying discrete
issues more specifically. On the other hand, the district court also mentions issue preclusion.
The court could have reasoned that, because the Florida state courts considered all of the issues
significant to the adult bookstores’ permanent injunction claim during the preliminary injunction
proceedings, issue preclusion would effectively undermine plaintiffs’ ability to make a case for a
permanent injunction.

                                                10
finding that the employee had been negligent and that the discharge was warranted.

The Gorin case arose in Georgia, and the circuit panel found it dispositive that the

state court’s resolution of the case had preclusive effect under Georgia law. See id.

at 837. “[F]ederal courts give preclusive effect to a state-court judgment whenever

the courts of the state from which the judgment emerged would do the same.”

Richardson v. Miller, 101 F.3d 665, 668 (11th Cir. 1996); see also Gjellum v. City

of Birmingham, 829 F.2d 1056, 1060 (11th Cir. 1987).

       Under Florida law rulings on an action for a preliminary injunction are

generally not considered final or conclusive; the denial of a preliminary injunction

does not preclude the subsequent grant of permanent equitable relief. See Silver

Rose Entertainment v. Clay County, 646 S.2d 246, 248 (Fla. 1st Dist. Ct. App.

1994); Ladner v. Plaza del Prado Condo Ass’n., 423 So. 2d 927, 929 (Fla. 1st Dist.

Ct. App. 1987).8 Although these Florida cases do not consider whether a ruling on

a preliminary injunction could be binding on a subsequent, distinct case, the

underlying logic is that temporary injunction rulings are generally not conclusive

determinations on the merits; they should not bar a more thorough consideration of

a claim when the evidence and legal arguments are better developed.

       8
         It should be pointed out that Florida’s view of the preclusive effect of preliminary
injunction decisions is the general view. See, e.g., University of Texas v. Camenisch, 451 U.S.
390, 395, 101 S. Ct. 1830, 1834 (1981) (findings of fact and conclusions of law by a court in a
preliminary injunction proceeding are not binding at a subsequent trial on the merits).

                                               11
       The Florida decisions dealing with the preclusive effect of preliminary

injunction rulings generally do not limit their holdings to either claim or issue

preclusion. All of the cases actually involve issue preclusion, however, and for

good reason. Claim preclusion only bars claims that were actually litigated, or that

could and should have been litigated, in a prior proceeding that reached final

judgment. See Gjellum, 829 F.2d at 1059-60 (11th Cir. 1987); Restatement

(Second) of Judgments §§ 17 & 24 (1982). By definition, preliminary injunction

proceedings do not provide an opportunity to litigate permanent injunction claims.

After losing their bid for a preliminary injunction, plaintiffs could have continued

in state court and sought a permanent injunction, but they could not have litigated

their permanent injunction claim in any proceeding that has already occurred.9

Thus, claim preclusion is inapplicable in this case.

       Florida case law does set out a narrow range of circumstances under which

the findings in a preliminary injunction proceeding would be deemed conclusive.

The requisite conditions were not satisfied in this case, however, and issue



       9
          Gorin does not provide an apt example of claim preclusion, even ignoring the reliance
on state law, because the procedural posture was quite different from this case. The State
Personnel Board held a full, adversarial proceeding before ruling on the merits of the plaintiff’s
wrongful discharge claim. Although the state court reviewed the administrative proceeding on
an “any evidence” standard, the court’s decision was final. Whereas the plaintiffs in this case
could have pursued the merits of their claim in the Florida trial court by seeking a permanent
injunction, the plaintiff in Gorin could only have taken an appeal.

                                                12
preclusion therefore does not apply either.10 The grant or denial of a temporary

injunction is considered binding in Florida if the hearing for the injunction is

“specially set” for the purpose of deciding the merits of a case, and the parties have

a full opportunity to present their case. See Silver Rose Entertainment, 646 So. 2d

at 248; Ladner, 423 So. 2d at 929. The Florida District Court of Appeals made

clear that the question before it was simply whether the plaintiffs had made the

standard showing to obtain a preliminary injunction, not whether Broward

County’s ordinance was in fact constitutional. See 3229 N. Federal Highway, Inc.

v. Board of County Comm’rs. of Broward County, 646 So. 2d 215, 222 (Fla. 4th

Dist. Ct. App. 1994). Although the briefs filed in the Florida courts and the Fourth

District Court of Appeals’ decision are thorough, nothing indicates that the trial

court’s two hour hearing on the preliminary injunction was intended to decide the

merits of the plaintiffs’ permanent injunction claim.

       The district court also suggested that the Rooker-Feldman doctrine barred it

from entertaining plaintiffs’ challenge to the Broward County licensing ordinance.

According to the Rooker-Feldman doctrine, federal district courts cannot review


       10
           Broward County cites one case in which a party was precluded from relitigating a
factual issue determined in a prior preliminary injunction proceeding. See Miller Brewing Co. v.
Jos. Schlitz Brewing Co., 605 F.2d 990, 995-96 (7th Cir. 1979). This case is not directly on
point, however, because the earlier preliminary injunction proceeding at issue in Miller Brewing
was also in federal court. There was no state law of issue preclusion to apply.

                                              13
final state court judgments, and cannot consider claims inextricably intertwined

with a state court judgment. See District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 1311 (1983); Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-16, 44 S. Ct. 149, 150 (1923); Powell v. Powell, 80

F.3d 464, 466-67 (11th Cir. 1996). Regardless of how intertwined plaintiffs’

claims for temporary and permanent injunctions may be, however, the Florida

courts’ denial of the temporary injunction is not a final or conclusive judgment on

the merits of the adult bookstores’ First Amendment case. Therefore, Florida’s

denial of the temporary injunction does not preclude plaintiffs from pressing a

claim for a permanent injunction or from litigating the factual and legal issues

necessary for making out that claim, and it does not bar a federal court from

considering that claim.



B. The Facial Challenge to the Zoning Ordinance



      In its findings of fact and conclusions of law after the bench trial, the district

court determined that International Eateries of America v. Broward County, 941

F.2d 1157 (11th Cir. 1991), which found Broward County’s previous adult

business zoning ordinance constitutional, controlled the facial challenge to 93-3.


                                          14
Appellants point out differences between the two ordinances and the litigation of

the respective cases, as well as changed circumstances in Broward County. None

of these differences alter the applicability of International Eateries. Accordingly,

our circuit’s precedent leads us to conclude that 93-3 is constitutional on its face.

       There are two differences between 93-3 and the zoning ordinance upheld in

International Eateries. First, 93-3 eliminates the waiver provision allowing adult

businesses with community approval to locate outside of the areas zoned for their

use. Second, instead of allowing non-conforming adult businesses to remain at

their existing sites, 93-3 gave businesses covered by the ordinance five years to

move to an appropriate location. The Constitution, however, does not require

either the waiver provision or the “grandfathering” clause for existing non-

conforming businesses.11

       Changes to the geography and demographics of Broward County, and

differences in the litigation posture of International Eateries and this case, also are

insignificant.12 For determining whether a previous case provides controlling

       11
          The International Eateries decision itself strongly suggested that restrictive zoning
schemes do not need waiver provisions to pass constitutional muster. See International Eateries,
941 F.2d at 1164. Courts have frequently upheld the application of new zoning regulations to
existing adult businesses with an amortization period. See, e.g., Ambassador Books & Video,
Inc. v. City of Little Rock, Ark., 20 F.3d 858, 865 (8th Cir. 1994); SDJ v. City of Houston, 636
F. Supp. 1359, 1370 (S.D. Tex. 1986), aff’d, 837 F.2d 1268, 1278 (5th Cir. 1988).
       12
         Since 1991 municipalities have annexed large portions of the unincorporated county,
taking many of the sites available for adult businesses in 1991 with them. The population also

                                               15
precedent in a case before the court, the legal strategies and underlying

circumstances of the earlier case are less important than the language and holding

of the previous decision, and its applicability to the facts of the case before the

court.



C. The As-Applied Challenge to the Zoning Ordinance



         For First Amendment purposes, courts treat zoning ordinances regulating

adult businesses as time, place, or manner restrictions. See City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S. Ct. 925, 928 (1986). Zoning

ordinances that target the social ills associated with adult entertainment are

constitutional if they are narrowly tailored to further a substantial government

interest and “allow for reasonable alterative avenues of communication.” Id. at 50,



has decreased. In addition, appellants note that International Eateries involved a different type
of plaintiff–adult dancing establishments instead of bookstores. Appellants indicate that nude
dancing is only marginally protected by the First Amendment, and suggest that their own
activities, more securely covered by the First Amendment, might warrant more robust protection
by the courts. International Eateries did not use a diluted test to evaluate the dance clubs’
claims, however, but applied the standard time, place, and manner scrutiny that is applicable in
this case as well. 942 F.2d at 1161-62. Finally, the appellants in this case point out that the
plaintiffs in International Eateries did not question the adequacy of the sites left available for
adult businesses under the old zoning ordinance, while that is the central challenge to 93-3. This
may be a correct assessment of the plaintiffs’ strategies in the two cases, but the court in
International Eateries did in fact hold that Broward’s zoning ordinance provided “reasonable
alternative avenues of communication.” Id. at 1164.

                                                16
106 S. Ct. at 930; see also International Eateries of America, Inc. v. Broward

County, Fla., 941 F.2d 1157, 1162 (11th Cir. 1991) (noting that the Supreme Court

did not intend “to eliminate narrow-tailoring requirement from time, place, and

manner analysis,” even though the Renton decision did not explicitly mention the

need for narrow tailoring).

       The appellants claim that Broward’s zoning ordinance, 93-3, does not leave

“reasonable alternative avenues of communication.” This claim has two

components. First, appellants argue that the trial court incorrectly calculated the

number of sites available for adult entertainment establishments. Second,

appellants argue that the trial court erred in concluding that even this exaggerated

number of sites provides adequate opportunities for their First Amendment

activities.13



       1. The Number of Sites Available for Adult Businesses

       13
          In a final, unrelated argument, appellants challenge the narrow tailoring of the zoning
ordinance required under First Amendment time, place, and manner analysis. Appellants claim
that the purpose of the ordinance’s distance requirements was to avoid a concentration of adult
businesses. They also note that five sites proferred by the county as available for adult
businesses are within a mile of each other, and three are “on virtually the same street corner.”
Brief for Appellants at 55. The district court did not address this argument, and neither will we
because we find that it is without merit. This court previously found the distance requirements
constitutional in International Eateries, 941 F.2d at 1163. Although 93-3 may force many adult
businesses into one part of the unincorporated county, requiring the adult venues to locate more
than 1,000 feet from each other still effectively limits their density in that part of the county.
This in turn may limit the negative secondary effects of the adult businesses.

                                                17
      The district court’s calculation of the number of sites available for adult

businesses under a zoning law is a factual finding, reviewed only for clear error.

See Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251, 1253 (11th Cir.

1999). On the other hand, the court’s methodology in making that

calculation–whether the consideration or exclusion of particular factors is

appropriate–is a question of law that we consider de novo. See id. at 1253-54.

      The Supreme Court has not thoroughly explained what factors to consider

when determining whether particular sites are reasonable for adult business

relocation. Renton suggests that adult businesses should be “on an equal footing

with other prospective purchasers and lessees,” and it cautions against zoning

regulations that have the effect of suppressing or severely restricting access to any

sort of protected speech. Renton, 475 U.S. at 54, 106 S. Ct. at 932. Renton also

makes clear, however, that commercial viability is not an appropriate

consideration. Id. Moreover, the land deemed available for adult businesses in

Renton included “‘acreage in all stages of development from raw land to

developed, industrial, warehouse, office, and shopping space.’” Id. at 53, 106 S. Ct.

at 932 (quoting App. to Juris. Statement 28a).

      Other circuits have given more definition to the rough outline provided by

Renton. In Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33


                                          18
(9th Cir. 1993), the Ninth Circuit outlined five rules of thumb for determining

whether land is part of the relevant real estate market, and thus considered

available for adult uses: First, there must be a genuine possibility that a site will

become available for new commercial use within a reasonable time. Second, a site

is available if it is reasonably accessible to the public. Third, a site is available if it

is in a manufacturing zone with infrastructure such as roads, sidewalks, and lights.

Fourth, a relocation site must be appropriate for some commercial business,

although it does not have to suit the particular needs of adult businesses. Fifth and

finally, commercially zoned plots are considered available.

       The Fifth Circuit focused on physical obstacles to development of a site in

Woodall v. City of El Paso, 49 F.3d 1120, 1124 (5th Cir. 1995). “[A]n obstacle

that can be overcome without incurring unreasonable expense does not make a site

unavailable, but an obstacle that cannot reasonably be overcome renders the site

unavailable.” Id. The court gave the following examples: “[T]he finder of fact

may exclude land under the ocean, airstrips of international airports, sports

stadiums, areas not readily accessible to the public, areas developed in a manner

unsuitable for any generic commercial business, areas lacking in proper

infrastructure, and so on.” Id. The Woodall court also decided that an owner’s




                                            19
unwillingness to rent or sell to an adult business,14 and the fact that land is

currently not available for sale or lease, are irrelevant under Renton. Id. at 1125-

26. The Eighth Circuit not only agrees that an owner’s willingness to sell or lease

to an adult business is irrelevant, but has indicated that the prohibitive cost of

developing a site does not factor into the Renton analysis either. See Alexander v.

City of Minneapolis, 928 F.2d 278, 283 (8th Cir. 1991). See also D.G. Restaurant

Corp. v. City of Myrtle Beach, 953 F.2d 140, 147 (4th Cir. 1991) (commercial

desirability of sites in industrial area is irrelevant).

       This circuit has not yet spoken on how to determine whether land is

available to adult businesses for First Amendment purposes. The case law from

the other circuits is helpful, but we do not need to formally adopt or critique the

reasoning of Woodall or Topanga.

       We can resolve this case with the aid of a few general rules. First, the

economic feasibility of relocating to a site is not a First Amendment concern.

Second, the fact that some development is required before a site can accommodate

an adult business does not mean that the land is, per se, unavailable for First

Amendment purposes. The ideal lot is often not to be found. Examples of



       14
          Woodall suggests but does not decide that easements barring adult uses may render a
site unavailable under Renton. See Woodall, 49 F.3d at 1127.

                                              20
impediments to the relocation of an adult business that may not be of a

constitutional magnitude include having to build a new facility instead of moving

into an existing building; having to clean up waste or landscape a site; bearing the

costs of generally applicable lighting, parking, or green space requirements;

making due with less space than one desired; or having to purchase a larger lot

than one needs. Third, the First Amendment is not concerned with restraints that

are not imposed by the government itself or the physical characteristics of the sites

designated for adult use by the zoning ordinance. It is of no import under Renton

that the real estate market may be tight and sites currently unavailable for sale or

lease, or that property owners may be reluctant to sell to an adult venue.

      The district court concluded in this case that adult businesses could locate at

seven to nine sites in unincorporated Broward County under 93-3. The district

court considered the testimony and reports of experts for both the adult bookstores

and the County. This evidence described the characteristics of nine sites the

County suggested were available for adult businesses. For some sites, one would

have to purchase multiple parcels of land and reconfigure the parcels. At some

sites, buildings would have to be demolished, and new structures built. A few of

the sites lack sidewalks and appropriate lighting. Hazardous waste from a car

repair facility may contaminate one site. There is no evidence that any of the land


                                          21
is for sale, and restrictive covenants may forbid the operation of adult

entertainment establishments on one parcel. One site with a gravel pit would

require substantial landscaping and fill work. Some lots could only accommodate

small enterprises, given the requirements for parking lots, green space, and

distance setbacks for adult businesses. Finally, a marina occupied one site at the

time of trial, and city approval of “flex rezoning” would be necessary before the

site could house an adult business.

      Plaintiffs argue that these obstacles render all but one of the sites unavailable

for adult businesses. Plaintiffs are especially concerned that the county could

thwart the establishment of adult businesses at many of the sites by denying or

delaying the permits necessary to redivide parcels of land and build commercial

buildings.

      Clearly, the physical characteristics of a site or the character of current

development could render relocation by an adult business unreasonable. See

Woodall, 49 F.3d at 1124 (giving land under the ocean, airstrips of international

airports, and sports stadiums as examples); Topanga, 989 F.2d at 1532 (same).

After our review of the record, however, we cannot say that the district court

clearly erred in finding seven to nine sites available for adult uses in

unincorporated Broward County. Some of the obstacles to relocating adult


                                           22
businesses in unincorporated Broward County, such as the current unavailability of

suitable land on the real estate market, are not of constitutional significance. There

is not enough evidence in the record that the physical obstacles to developing sites

(the possibility of contamination from a car repair facility and the presence of a

gravel lot) are prohibitive. Nor does the record evidence conclusively show that it

would be infeasible to fashion lots appropriate for adult businesses through the

purchase and division of multiple parcels of land and development in accordance

with county safety and landscaping requirements. Finally, appellants’ concern

about obtaining the necessary permits to redevelop sites for adult businesses is

entirely speculative at this time.



      2. Adequate Opportunities for Adult Expression



      Whether the sites available for adult businesses provide reasonable avenues

for communicating the businesses’ protected expression is a question of law

concerning the ultimate constitutionality of Broward’s zoning ordinance.

Therefore we review the district court’s determination of this issue de novo. See

Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1546 (11th Cir. 1997)

(constitutionality of a statute is a question of law subject to de novo review, while


                                          23
underlying factual findings are reviewed for clear error); Crawford v. Lungren, 96

F.3d 380, 384 (9th Cir. 1996) (review of challenge to constitutionality of statute

regulating sale of adult magazines using the Renton analysis is done de novo).

      The Supreme Court has not established a rigid test for determining whether

zoning laws leave adequate opportunities for expression protected by the First

Amendment, but the Court has noted that, because “the scope of relevant zoning

authority varies widely across our country, as do geographic configurations and

types of commerce among neighboring communities, this issue will doubtless be

resolved on a case-by-case basis.” Schad v. Borough of Mt. Ephraim, 452 U.S. 61,

78-79, 101 S. Ct. 2176, 2188 (1981) (Blackmun, J., concurring).

      In this circuit, we have stated that the analysis should take into account “any

factors that may affect whether adult entertainment establishments are on ‘equal

footing with other prospective purchasers and lessees.’” Boss Capital, Inc. v. City

of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999) (quoting Renton, 475 U.S. at

54). In Boss Capital, we specifically suggested considering the community’s

population and size, the acreage available to adult businesses as a percentage of the

overall size, the location of available sites, the number of adult businesses already

in existence, and the number of adult businesses wanting to operate in the

community in the future. See id. In another decision, we suggested considering


                                          24
the “community needs, the incidence of nude bars in other comparable

communities, the goals of the city plan, and the kind of city the plan works

toward.” International Food & Beverage Systems v. City of Fort Lauderdale, 794

F.2d 1520, 1526 (11th Cir. 1986).

       In this case, the district court took into account a number of factors before

concluding that 93-3 leaves adequate avenues of expression. Most prominently,

the court mentioned that the ratio of available sites to square miles in

unincorporated Broward County is the same as under the County’s former zoning

ordinance when it was approved by this court in International Eateries. The district

court also noted that nine businesses have satisfied Broward County’s demand for

adult entertainment over the last few years.15 More significant to the court,

however, was the fact that unincorporated Broward County is being annexed out of

existence. As the years go by, there will be fewer and fewer sites for any type of

business in the county. The district court refused to rely solely on a rigid formula

of available sites-to-population suggested by the plaintiffs,16 but suggested that in




       15
         Although, as appellants point out, there are actually a number of other, unlicensed adult
venues in Broward County.
       16
         This methodology, relying on the ratio of sites to population, was discussed favorably
in Centerfield v. St. Petersburg, 969 F. Supp. 1288, 1305 (M.D. Fla. 1997), and with skepticism
in Lady J. Lingerie v. City of Jacksonville, 973 F. Supp. 1428, 1438 n.7 (M.D. Fla. 1997).

                                               25
its view seven sites would provide adequate avenues of expression under such a

formula.

       Perhaps, the district court could have been more thorough in setting out the

factors it did and did not find relevant to the adequacy of the available sites for

adult businesses. District courts, however, do not need to provide a checklist of

every conceivable consideration. We find the district court’s reasoning in this case

persuasive. We too find it significant that the ratio of sites to land area in

unincorporated Broward County was found acceptable in International Eateries.

We also consider the correlation of available sites to existing adult businesses

important.17 Finally, the fact that unincorporated Broward County is shrinking

makes this case unique. We conclude that Broward County’s zoning ordinance

does not deprive the appellant adult bookstores of reasonable avenues of

communication.



                                     III. CONCLUSION



       17
          The Ninth and the Fifth Circuits have focused heavily on whether the zoning plan
leaves enough available sites to satisfy the demand for adult business locations, or as the Ninth
Circuit put it, whether the available “acreage provides the Adult Businesses with a reasonable
opportunity to relocate.” See Woodall, 49 F.3d at 1126 (5th Cir. 1995); Topanga Press, 989 F.2d
at 1532-33 (9th Cir 1993) (the number of sites available for adult businesses under the new
zoning regime must be greater than or equal to the number of adult businesses in existence at the
time the new zoning regime takes effect).

                                               26
      We AFFIRM the district court ruling that Broward County’s zoning

ordinance, 93-3, is constitutional both facially and as applied. We REVERSE the

order granting summary judgment on plaintiffs’ challenge to Broward County’s

licensing ordinance, 93-18, and REMAND for further proceedings in accordance

with this opinion.




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