                            UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                             12
507, 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.




                                              28
                                                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
