242 F.3d 976 (11th Cir. 2001)
FLANIGAN'S ENTERPRISES, INC. OF GEORGIA,  d.b.a. Mardi Gras, Plaintiff-Appellant,v.FULTON COUNTY, GEORGIA THE BOARD OF COMMISSIONERS OF FULTON COUNTY, GEORGIA,  et al.., Defendants-Appellees.6420 ROSWELL ROAD, INC. , a Georgia Corporation, d.b.a. Flashers, HARRY  FREESE, individually and as Licensee for Flashers, et al., Plaintiffs-Appellants,v.FULTON COUNTY, THE BOARD OF COMMISSIONERS OF FULTON COUNTY, GEORGIA, et al., Defendants-Appellees.CEEDA ENTERPRISES, INC. d.b.a. Riley's Restaurant and Lounge,  Plaintiff-Appellant,v.FULTON COUNTY, GEORGIA, THE BOARD OF COMMISSIONERS OF FULTON COUNTY, GEORGIA,  et al., Defendants-Appellees.
No. 00-11152D. C. Docket No. 98-02441-CV-GET-1
UNITED STATES COURT OF APPEALSELEVENTH CIRCUIT
Feb. 20, 2001

[Copyrighted Material Omitted]
Appeals from the United States District Court for the Northern District of Georgia
Before DUBINA, FAY and COX, Circuit Judges.
PER CURIAM:


1
Plaintiffs, four adult entertainment businesses ("Plaintiffs") operating in  unincorporated Fulton County, Georgia appeal from the grant of summary judgment  in favor of defendants Fulton County and its Board of Commissioners. The  district court held that a 1997 amendment to Section 18-76 of the Fulton County  Code ("Section 18-76" or "1997 amendment") which prohibited the sale and  consumption of alcoholic beverages in adult entertainment establishments was  constitutional as a matter of law. The district court found that the 1997  amendment operated as a content-neutral restriction that furthered the  government's interest in preventing negative secondary effects associated with  adult entertainment businesses, and denied Plaintiffs' claims based on due  process, prior restraint, and contract impairment. On appeal, Plaintiffs contend  that the amendment to Section 18-76 fails to further the government's purported  concern because local studies show no evidence of negative secondary effects  connected with Plaintiffs' clubs. Plaintiffs also contend that Defendants'  conduct in passing the 1997 amendment violated due process, that the amendment  impairs their contractual obligations, and that the district court erred in  declining to reach the merits of their prior restraint claim. We hold that the  1997 amendment fails to further Defendants' purported concern with negative  secondary effects, and accordingly REVERSE IN PART and AFFIRM IN PART the  district court's grant of summary judgment.

I.Background Facts

2
In considering whether to amend Section 18-76, the Fulton County Board of  Commissioners ("Board") passed a resolution directing the Fulton County Police  Department, the County Attorney, and the Department of Planning and Economic  Development (collectively "Fulton County staff") to conduct a study on the  secondary effects of alcohol consumption in adult entertainment establishments  located in Fulton County. See Fulton County, Ga., Resolution Relating to  Regulation of Alcohol Consumption in Adult Entertainment Establishments (Apr.  16, 1997). The Board also directed Fulton County staff to assemble similar  studies from foreign jurisdictions ("foreign studies"). The resolution stated  that the Board had reason to believe that consumption of alcoholic beverages in  adult entertainment establishments contributed to increased crime and decreased  real property values. The resolution further stated the Board's intent "to  enact, if warranted by said studies, a carefully tailored regulation to minimize  the negative secondary effects of the serving and consumption of alcoholic  beverages at adult entertainment establishments...."


3
On June 13, 1997, the Fulton County Police Department completed a study  concerning the number of calls for police assistance and the number and types of  crimes occurring in the vicinity of twelve drinking establishments: six that  featured adult entertainment and six that did not. See Study of Calls for  Service to Adult Entertainment Establishments Which Serve Alcoholic Beverages  (June 13, 1997). The study concluded that, for the time period January 1, 1995  through May 31, 1997, there was no statistical correlation showing an increase  in crime at adult entertainment establishments that served alcoholic beverages.  Rather, the statistics indicated greater instances of calls for service and  reported crime at non-adult entertainment establishments that served alcoholic  beverages.


4
In or about June 1997, the six Fulton County adult entertainment establishments  ("the Clubs"), four of which are owned by Plaintiffs, commissioned Land  Development Analysts, Inc. ("LDA, Inc.") to conduct a study of the Clubs'  economic impact on their surrounding environs. Specifically, LDA, Inc. sought to  identify negative impacts, if any, on the business volumes, rental rates and  property values of surrounding properties. The study revealed high occupancies  and rental rates in existing buildings, expensive improvements, business  expansions, turn- away business volume and proposed development in the Clubs'  vicinities. See Economic Impact Study, Six Locations in Three Neighborhoods,  Fulton County, Georgia (June 1997). LDA, Inc. could not identify any detrimental  impacts as caused by the Clubs.


5
In response, the Board of Commissioners retained its own appraiser, Dabney &  Associates ("Dabney"), to inspect the subject properties and to review the  economic impact study prepared by LDA, Inc. The Dabney report claimed several  weaknesses with the aforementioned study, but determined that the report's  weaknesses did not invalidate it's conclusions.1 The Dabney report found that  LDA, Inc. gathered appropriate data and arrived at reasonable conclusions. Based  on the market data provided by LDA, Inc., Dabney found that the Clubs had caused  no diminution of property values or rents. See An Administrative Review of An  Economic Impact Study of Six Locations In Three Neighborhoods, Fulton County,  Georgia dated August 7, 1997. Dabney personally observed that none of the  subject properties or those around them showed a lack of maintenance.2 The Clubs  bore restrained identification signs, and Dabney found it difficult even to  identify two of the Clubs as adult entertainment establishments. Thus, the  Dabney report drew similar to identical conclusions to that of LDA, Inc., i.e.,  that the Clubs had caused no quantifiable "blight" upon their environs.


6
The Board held two public meetings, on November 19, 1997, and on December 17,  1997, to consider the amendment. At the first public meeting, the Board  considered the following: (1) foreign studies collected by Fulton County staff;3  (2) the LDA, Inc. study; (3) the Fulton County Police study; (4) and the Dabney  report. The Board also received public comments and permitted counsel for  Plaintiffs fifteen minutes each to present their position regarding the proposed  amendment and the relevant studies.


7
On December 17, 1997, at the second public hearing, the Board met and approved  the amendment to Section 18-76. The 1997 amendment prohibits the serving,  offering or consuming of any alcoholic beverages on the premises of an adult  entertainment licensee.4 The preamble to the ordinance provides the Board's  justification for the amendment:


8
...WHEREAS, in a public hearing held November 19, 1997, the Board of  Commissioners heard testimony and received studies from its staff, the public,  and from representatives of the adult entertainment industry concerning  negative secondary effects connected with adult entertainment facilities where  alcoholic beverages are consumed, and live nude, or partially nude,  performances are presented;


9
WHEREAS, based upon the experience of other urban counties and municipalities,  which experiences the Board of Commissioners finds are relevant to the  problems faced by Fulton County, Georgia, and which do not vary greatly among  generally comparable communities within this country, the Board of  Commissioners finds that public nudity, under certain circumstances,  particularly circumstances related to the sale and consumption of alcoholic  beverages in adult entertainment facilities offering live entertainment,  begets criminal behavior and tends to create undesirable community conditions;


10
WHEREAS, among the undesirable community conditions identified with live nude  entertainment and alcohol are depression of property values in the surrounding  neighborhood, increased expenditure for the allocation of law enforcement  personnel to preserve law and order, increased burden on the judicial system  as a consequence of the criminal behavior herein above described, and  acceleration of community blight by the concentration of such establishments  in particular areas;


11
WHEREAS, the limitation of nude conduct in establishments licensed to sell  alcohol for consumption on the premises is in the public welfare, and it is a  matter of government interest and concern to prevent the occurrence of  criminal behavior and undesirable community conditions normally associated  with establishments which serve alcohol and also allow or encourage  nudity;....


12
Ordinance Amending Fulton County, Ga., Code  18-76 (Dec. 17, 1997).

II. Procedural History

13
On August 25, 1998, plaintiff Flanigan's Enterprises, Inc. of Georgia, d/b/a  Mardi Gras ("Mardi Gras") filed a civil action in the District Court for the  Northern District of Georgia seeking declaratory and injunctive relief and  monetary damages. The civil action names Fulton County, a political subdivision  of the State of Georgia, and the Fulton County Board of Commissioners,  individually and in their official capacities, as defendants (collectively  "Defendants"). On October 5, 1998, plaintiff CEEDA Enterprises, d/b/a Riley's  Restaurant and Lounge ("Riley's") and plaintiff 6420 Roswell Road, Inc. d/b/a  Flashers, Harry Freese, Fannies, Inc., and William H. Parks, Jr. ("Flashers and  Fannies") filed suit against the same Defendants. The complaints, filed pursuant  to 42 U.S.C.  1983, seek a declaration that Section 18-76, as amended, operates  as an impermissible prior restraint and violates the free speech clause of the  First Amendment, the takings clause of the Fifth Amendment, the equal protection  clause, and both the substantive and procedural guarantees of the due process  clause of the Fourteenth Amendment. The complaints further seek a permanent  injunction prohibiting the enforcement of this provision against the Plaintiffs,  and damages for condemnation, intentional interference with business relations,  and breach of contract.


14
The district court, Hon. G. Ernest Tidwell, consolidated the three cases by  agreement of the parties. On February 4, 2000, the district court entered  summary judgment in favor of the Defendants on all claims.5 Relying on Sammy's6,  the district court determined that an ordinance prohibiting nude dancing in  establishments licensed to sell liquor constitutes a content-neutral law subject  to intermediate scrutiny under O'Brien.7 The district court concluded that  Section 18-76 was constitutional as a matter of law because, like the ordinance  in Sammy's, Section 18-76 was amended to prevent negative secondary effects  related to nude dancing, and therefore, furthered a substantial government  interest unrelated to free expression. The court reasoned that the experience of  other urban areas provided the requisite factual basis for the Board's stated  justification that nude dancing begets criminal behavior and tends to create  undesirable community conditions. Moreover, the district court rejected  Plaintiffs' arguments that the Board, in the face of contradictory local  studies, unreasonably relied on outdated and foreign studies that focused on the  location of adult entertainment businesses rather than the relationship between  alcohol and live nude entertainment.


15
With respect to the Plaintiffs' due process challenge, the district court found  that the Defendants' actions in amending Section 18-76 constituted legislative  action because the amendment applies generally to all adult entertainment  establishments existing now or created in the future. However, even if the 1997  amendment could be characterized as adjudicative in nature, the Clubs did not  have a vested right in the renewal of their adult entertainment and liquor  licenses because section 18-42 of Article II of the Fulton County Code requires  annual registration in accordance with Article II, and the Clubs did not have a  vested right in the law never changing.8 Moreover, the district court found that  Plaintiffs were given sufficient due process, i.e., notice of the proposed  legislation, time to state their concerns and to submit their own studies at the  first public hearing.


16
The district court did not address the merits of the Plaintiffs' claim that  Section 18-76 operates as an invalid prior restraint. The district court found  that such a claim was not adequately set forth in the pleadings, and therefore,  was untimely raised for the first time in response to the Defendants' motion for  summary judgment. Finally, the district court determined that even if the  amendment to Section 18-76 impaired the Clubs' contractual leases, the amendment  constituted a necessary exercise of the county's police power in order to  prevent the negative secondary effects related to the sale and consumption of  alcohol in adult entertainment establishments.


17
On February 22, 1997, Plaintiffs filed a motion for reconsideration, and on  March 3, 1997, the Plaintiffs timely filed a Notice of Appeal. On March 27,  1997, the district court entered an order denying the Plaintiffs' motion to  reconsider the order granting summary judgment to the Defendants on all counts.  Plaintiffs thereafter proceeded with the present appeal.

III DISCUSSION

18
We review a district court's grant of summary judgment de novo, applying the  same standards as the district court. See Harris v. H&W Contracting Co., 102  F.3d 516, 518 (11th Cir.1996). We will affirm the district court if the record  demonstrates there is no genuine issue as to any material fact and the moving  party is entitled to judgment as a matter of law. See Fernandez v. Bankers Nat'l  Life Ins. Co., 906 F.2d 559, 564 (11th Cir.1990).

A. Freedom of Expression

19
The Supreme Court has recently reaffirmed that nude dancing of the type at issue  here is expressive conduct that falls within the outer ambit of the First  Amendment's protection. City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct.  1382, 1391 (2000) (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566,  111 S.Ct. 2456 (1991) (plurality opinion); see also Schad v. Mount Ephraim, 452  U.S. 61, 66, 101 S.Ct. 2176 (1981). Thus, municipal ordinances like the one at  issue that regulate nude dancing are subject to constitutional scrutiny.


20
1.Establishing the Proper Standard of Review


21
To determine what level of scrutiny applies, we must decide "whether the State's  regulation is related to the suppression of expression." Pap's, 120 S.Ct. at  1391 (quoting Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533 (1989)). If  the governmental purpose in enacting the regulation is unrelated to the  suppression of expression, then the regulation need only satisfy intermediate  scrutiny under O'Brien. Pap's, 120 S.Ct. at 1391 (citing cases). If the  government interest is related to the content of the expression, however, then  the regulation falls outside the scope of the O'Brien test and must be subjected  to strict scrutiny. Id. Thus, the principal inquiry in determining content  neutrality is whether the government has adopted a regulation of speech because  of disagreement with the message it conveys or if it is justified without  reference to the content of regulated speech. Ward v. Rock Against Racism, 491  U.S. 781, 791, 109 S.Ct. 2746, 2754 (1989).


22
In Pap's, the Supreme Court held that a municipal ordinance banning all public  nudity, as applied to establishments that offered nude dancing, was  content-neutral. Pap's, 529 U.S. 277, 120 S.Ct. 1382. The Court reasoned that  the city of Erie's asserted interest in combating negative secondary effects  associated with adult entertainment establishments was unrelated to the  suppression of the erotic message conveyed by nude dancing. See id. As in Pap's,  the preamble to Section 18-76 expressly states that the 1997 amendment was  intended to target the negative secondary effects associated with adult  entertainment establishments. Therefore, the Defendants' purpose in prohibiting  nude dancing in establishments licensed to sell liquor is not related to the  suppression of any erotic message conveyed by nude dancing.


23
Plaintiffs Fannies and Flashers argue that the amendment to Section 18-76 is  distinguishable from the ordinance at issue in Pap's because Fulton County is  not attempting to ban all public nudity. See Pap's, 120 S.Ct. at 1391 (reasoning  that the ordinance "does not target nudity that contains an erotic message;  rather, it bans all public nudity, regardless of whether that nudity is  accompanied by expressive activity"). Fannies and Flashers contend that Section  18-76 is content-based because it only bans nude dancing in establishments  licensed to sell alcoholic beverages. Similarly, they claim that Section 18- 76  treats live nude dancing differently from non-live nude dancing and, therefore,  is content-based because it favors one message over another. If the combustible  nature of nudity and alcohol were truly the problem Defendants sought to  correct, Fannies and Flashers assert that the Board would have enacted a general  ban on nudity. See Pap's, 529 U.S. 277, 120 S.Ct. 1382; Barnes, 501 U.S. 560,  111 S.Ct. 2456.


24
First, this circuit has specifically held that a city ordinance prohibiting nude  dancing in establishments licensed to sell liquor is content-neutral and  therefore, subject to review under the O'Brien test. See Sammy's of Mobile, Ltd,  v. City of Mobile, 140 F.3d 993, 996 (11th Cir. 1998), cert. denied, -- U.S. -,  120 S.Ct. 1553 (2000).9 We have subsequently reaffirmed this holding, guided by Pap's, reasoning that regulations targeting undesirable secondary effects of  adult entertainment establishments that serve alcoholic beverages are unrelated  to the suppression of the erotic message conveyed by nude dancing. Artistic  Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306, 1309 (11th Cir.  2000) (explaining that ordinance's express purpose was to reduce criminal  activity and "other undesirable community conditions"); Wise Enterprises, Inc.,  v. Unified Government of Athens-Clarke County, 217 F.3d 1360, 1363-64 (11th Cir.  2000) (reproducing ordinance providing that combination of public nudity in  combination with the sale and consumption of alcoholic beverages "begets  criminal behavior and tends to create undesirable community conditions").


25
Second, the Supreme Court has recognized that a regulation is not necessarily  content-based simply because on its face it distinguishes among types of speech  based on their content. See Renton v. Playtime Theatres, 475 U.S. 41, 46-48, 106  S.Ct. 925. In Renton, the plaintiff argued that the ordinance was content- based  because it treated theaters that specialized in adult films differently from  other kinds of theaters. However, the Court applied intermediate scrutiny  reasoning that the ordinance was aimed not at the content of the films shown at  the adult motion picture theaters, but rather at the secondary effects of such  theaters on the surrounding community. Here, as in Renton, the Board's  predominate concern, as manifested in the preamble of Section 18-76, was the  secondary effects of nude dancing combined with the consumption of alcoholic  beverages, not at the message conveyed by nude dancing. Accordingly, we find  that amended Section 18-76 is content-neutral and review the Fulton County  ordinance pursuant to the test set forth in O'Brien.

2.Applying the O'Brien test

26
Under O'Brien, an ordinance is valid if: (1) it serves a substantial interest  within the power of the government; (2) the ordinance furthers that interest;  (3) the interest served is unrelated to the suppression of free expression; and  (4) there is no less restrictive alternative. See O'Brien, 391 U.S. at 377, 88  S.Ct. at 1679. Defendants assert that Section 18-76 was amended to prevent the  occurrence of criminal behavior and undesirable community conditions,  specifically identified in the preamble as depression of property values,  increased crime, and acceleration of community blight. Such interests are  substantial government interests that satisfy the first part of the O'Brien  test. See, e.g., Pap's (applying O'Brien test to city of Erie's prohibition on  public nudity and finding that stated interest in combating secondary effects  related to nude dancing is clearly within city's police powers to protect public  health and welfare).


27
Section 18-76 also satisfies the third and fourth prongs of the O'Brien test.  See O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Both our court and the Supreme  Court have expressly held that an ordinance focusing on the secondary effects  associated with the combination of nude dancing and alcohol consumption is  unrelated to the suppression of free expression. See Pap's, 120 S.Ct. at 1393  (stating that the government's interest in combating harmful secondary effects  is not related to the suppression of expression); accord Wise Enterprises, Inc.,  217 F.3d 1360, 1364.10 Moreover, such a restriction on First Amendment rights is  no greater than necessary to further the government's interest, as required  under the fourth prong of the O'Brien test. See Pap's, 120 S.Ct. at 1397  (concluding that, in order to comply with ordinance, requirement that dancers  wear pasties and G-strings leaves ample capacity to convey the dancer's erotic  message); Wise Enterprises, Inc., 217 F.3d at 1365 (reasoning that ordinance  does not prohibit all nude dancing, but only in those locations where the  unwanted secondary effects arise).


28
The second prong of the O'Brien test, however, states that the regulation must  further an important government interest. See O'Brien, 391 U.S. at 376. The  avoidance of criminal activity, protection of property values, and avoidance of  community blight are undeniably important. See Pap's, 120 S.Ct. at 1395 (stating  that asserted interest in combating secondary effects associated with nude  dancing are undeniable important). However, it is less clear whether Section  18-76 furthers the Defendants' stated interest in preventing the occurrence of  negative secondary effects associated with the types of businesses operated by  Plaintiffs.


29
In order to meet their burden under this element, the Defendants must have "some  factual basis for the claim that [adult] entertainment in establishments serving  alcoholic beverages results in increased criminal activity" and other  undesirable community conditions. Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d  943 (11th Cir. 1982) (upholding county ordinance prohibiting nude and semi-nude  entertainment in establishments licensed to sell liquor where city commissioners  had evidence that substantial criminal activity took place in topless bars). In  terms of demonstrating that such secondary effects pose a threat, the city need  not "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."  Pap's, 120 S.Ct. at 1395 (quoting Renton, 475 U.S. 41, 51-52, 106 S.Ct. 925  (1986)). In Barnes, for example, the Court determined that Indiana's public  indecency statute reflected moral disapproval of people appearing nude in  public, and found evidence in a long line of public indecency laws, dating from  1831, that the statute furthered the government's interest in protecting order  and morality. See Barnes, 501 U.S. 560, 567-68, 111 S.Ct. 2456, 246. In Pap's,  the Supreme Court held that Erie city council members could reasonably rely on  the experience of other cities, in addition to their own first-hand knowledge,  as evidence that the same kind of nude dancing was likely to produce the same  secondary effects. See Pap's, 120 S.Ct. at 1395. Thus, we find no basis for  Defendants' contention that, pursuant to Pap's and Barnes, we may presume the  evidence needed to meet the second prong of the O'Brien test.11


30
Our own cases demonstrate that we require some reasonable justification for  legislation which suppresses, albeit incidentally, protected expression.12 See  Sammy's, 140 F.3d at 997 (relying upon the experience of other cities, foreign  studies, case law reciting findings, as well as the officials' own wisdom and  common sense); Wise Enterprises, Inc., 217 F.3d at 1364 (experience of other  cities, foreign studies, and a local police report documenting police visits to  adult entertainment establishments). In this case, the Board amended Section  18-76 of the adult entertainment ordinance because it was concerned that adult  entertainment facilities caused (a) depression of property values; (b) increase in crime and expenditures related thereto; and (c) neighborhood blight. See  Preamble to Ordinance Amending Section 18-76. Unlike in Pap's and Sammy's, where  the plaintiffs never challenged the cities' findings, the Fulton County Clubs  challenged and disproved the Board's findings. The evidence in the record  relating to conditions in Fulton County shows unequivocally that property values  in neighborhoods adjoining the Clubs have increased during the time the Clubs  have been in existence, and that surrounding buildings show no signs of blight,  or lack of physical maintenance. Moreover, the Fulton County police study found  greater reported crime connected with establishments that served alcohol but did  not feature adult entertainment. In other words, local studies commissioned both  by the Clubs and the Board found no evidence of the secondary effects with which  the Board was purportedly concerned. The question thus becomes, was it  reasonable for Defendants to ignore relevant local studies and rely instead upon  remote foreign studies in determining whether adverse secondary effects were  attributable to the Fulton County Clubs?


31
We do not think that Defendants had any reasonable justification for amending  Section 18-76 when the county's own studies negated the very interests it  purportedly sought to prevent. See Krueger v. City of Pensacola, 759 F.2d 851  (11th Cir. 1985). In Krueger, we stated that where the right to free speech is  at issue, the government bears the burden of showing that the articulated  concern has more than merely speculative factual grounds, and that it was  actually a motivating factor. See id. at 855. Thus, in that case, we held  unconstitutional a city ordinance which banned nudity in establishments that  served alcoholic beverages because the city failed to produce any evidence of a  crime problem, the city's purported justification in passing the ordinance. Id.;  cf. Grand Faloon Tavern, 670 F.2d 943, 950 (report of police calls and testimony  of police officers concerning crime associated with nude entertainment provided  necessary link between stipulated purpose of the ordinance and the problems  justifying it). We recognize that a governmental entity is not required to  perform empirical studies. See Pap's, 120 S.Ct. at 1395. However, having done  so, the Board cannot ignore the results. Local studies, including those  commissioned by the county itself, revealed that the Clubs had less, up to half,  the incidence of crime than establishments that did not offer nude dancing,  property values had increased in the Clubs' surrounding neighborhoods, and the  physical maintenance of surrounding buildings showed no quantifiable blight. Accordingly, we find that it was unreasonable for Defendants to rely on remote,  foreign studies concerning secondary effects when the county's own current,  empirical data conclusively demonstrated that such studies were not relevant to  local conditions.13


32
The case might be different were the Clubs a recent addition to Fulton County  neighborhoods. It is undisputed, however, that Plaintiffs have continually  operated these adult entertainment establishments for nearly a decade.14 We  realize that our decision today appears to result in constitutional fact  finding, in which the constitutionality of an ordinance will depend on local  conditions. However, we have no choice; we are bound by the decisions of the  Supreme Court and the law of our circuit. To be sure, Defendants may respond by  enacting a ban on all public nudity; the Supreme Court has upheld that. See  Pap's, 529 U.S. 277, 120 S.Ct. 1382; see also Barnes, 501 U.S. 560, 111 S.Ct.  2456. However, Defendants may not ban nude dancing in establishments licensed to  sell liquor without any factual basis to support the claim that these  establishments are connected with negative secondary effects.


33
We reiterate that, to satisfy the O'Brien test, the county must demonstrate that  it reasonably relied upon evidence relevant to the problem that it addresses.  See Pap's, 120 S.Ct. at 1395. We simply cannot find it reasonable for a  government entity to conduct studies on specific areas and then to reject the  conclusions thereof in favor of studies from different cities and different time  periods. Accordingly, we hold that Section 18-76 is unconstitutional under the  O'Brien test because the ordinance fails to further the professed government  interests.

B. Due Process

34
Plaintiffs Flashers and Fannies contend that Section 18-76, as amended, deprives  the Clubs of a vested property right in their alcoholic beverage and adult  entertainment licenses in violation of due process of law. U.S. Const. Amend.  XIV,  1. They assert that the Clubs have a vested right in these licenses based  on the fact that Defendants have renewed their licenses in the past, as well as  their expectation of renewal due to the wording of the licensing scheme.  Defendants argue that the 1997 amendment effects all existing and future adult  entertainment establishments in Fulton County, and as such, constitutes  legislative action undertaken by the Board in the normal manner prescribed by  law.15 Alternatively, Defendants argue that Plaintiffs had nothing more than a  unilateral expectation in the renewal of their licenses, and as such were not  exempt from a change in the law pursuant to a legitimate exercise of the city's  police power to protect public welfare and safety. Finally, Defendants assert  that the Plaintiffs received due process.16


35
Due process of law requires notice and an opportunity for some kind of hearing  prior to the deprivation of a significant property interest. Halverson v. Skagit  County, 42 F. 3d 1257, 12260 (9th Cir. 1994). Assuming, arguendo, that Section  18-76 operates as an adjudication targeted at the Clubs, and that the Clubs have  a vested property right in their adult entertainment and liquor licenses, we  agree with the district court that Plaintiffs were granted due process.17  Plaintiffs' claim of a lack of procedural due process fails as a matter of law.

C. Prior Restraint

36
Next, Flashers and Fannies argue that the district court erred in failing to  consider their claim that Section 18-76 is part of a licensing scheme that  operates as an invalid prior restraint. See FW/PBS, Inc. v. City of Dallas, 493  U.S. 215, 228 (1990). In declining to address the merits, the district court  held that the Plaintiffs' challenge to the licensing scheme was a new claim  raised for the first time in response to the Defendants' motion for summary  judgment. That response, filed more than fifteen months after commencement of  this suit, was unaccompanied by either a motion to amend the pleadings or any  reason justifying an amendment. Thus, we must decide whether the Plaintiffs'  pleadings were sufficient to give Defendants and the court notice that the  entire licensing scheme, and not just Section 18-76 were subject to challenge as  a prior restraint. See Lyes v. City of Riviera Beach, 126 F.3d 1380, 1387 (11th  Cir. 1997) (deciding whether complaint invoking Fourteenth Amendment gave notice  of equal protection claim where district court only analyzed due process claim).


37
Plaintiffs' complaints, at first blush, expressly challenge the "Liquor  Ordinance" or "Ordinance" as a prior restraint. See Mardi Gras complaint in Civ.  No. 1-98-CV2441,  34, 44; Plaintiffs Flashers' and Fannies' complaint in Civ.  No. 1-98-CV- 2904,   33, 42; Plaintiff Riley's complaint in Civ. No. 1-98-  CV-2910,  8. However, a closer reading reveals that Plaintiffs specifically  limited their constitutional challenge to the 1997 amendment which restricted  the sale and consumption of alcohol at adult entertainment establishments, and  the absence of negative secondary effects connected with the Clubs.18 By  contrast, the licensing scheme which Plaintiffs now attack is contained in  separate sections of the Fulton County Code, sections 18-111 and 18-112 Division  2. Chapter 18 Article III. No part of the licensing regulation was a part of the  1997 amendment to Section 18-76 "Rules for Operation" Division 1. Chapter 18  Article III. We have not even been able to locate sections 18-111 and 18-112 of  the Fulton County Code in the record. Accordingly, we find that the Plaintiffs  failed to plead facts sufficient to notify Defendants or the court that they  challenged the licensing scheme as a whole. We affirm the district court's  decision not to address the merits of this claim.19

D. Obligation of Contract

38
Finally, Flashers and Fannies claim that Section 18-76 impairs the Clubs' right  to contract in violation of the Contracts Clause . See U.S. Const. art. I,  10,  cl. 1. Specifically, Flashers and Fannies argue that their leases provide that  the premises shall be used for a topless nudity bar, and require both clubs to  maintain a liquor license.20


39
The United States Constitution provides that "no state shall ... pass any Law  impairing the Obligation of Contracts...." U.S. Const. Art. I,  cl. 1. In  evaluating a Contracts Clause claim, the court must determine whether the state  law operates as a substantial impairment of a contractual relationship and if  so, whether the impairment is necessary to meet an important government  interest. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716  (1978). However, "it is to be accepted as a commonplace that the Contract Clause  does not operate to obliterate the police power of the States. ... [T]he police  power [] is an exercise of the sovereign right of the Government to protect the  lives, health, morals, comfort and general welfare of the people, and is  paramount to any rights under contracts between individuals." Spannaus, 438 U.S.  234, 244, 98 S.Ct. 2716, 2722.


40
We have already determined that the amendment to Section 18-76 constitutes a  valid exercise of the Defendants' police powers. See Pap's (combating secondary  effects related to nude dancing is clearly within city's police powers to  protect public health and welfare). Thus, even if Section 18-76 impairs  Plaintiffs' contractual leases, we agree with the district court that the  ordinance remains a valid exercise of the County's police power to protect the  health, safety, welfare and morals of its citizens.

IV. Conclusion

41
The district court granted summary judgment for Defendants on all grounds. We  REVERSE the grant of summary judgment on the First Amendment freedom of  expression claim and AFFIRM the grant of summary judgment on all other claims.  We REMAND the case to the district court for further proceedings consistent with  this opinion.



NOTES:


1
 The Dabney report posited that: (1) LDA, Inc.'s use of broad neighborhoods may  have eclipsed adverse impacts in the Clubs' immediate areas; (2) the failure to  use control neighborhoods precluded evidence that increasing market values might  have reached even higher levels without the presence of adult entertainment  establishments; and (3) the failure to define key underlying terms, specifically  "blight," resulted in undue focus on market conditions that may not directly  relate to maintenance of surrounding properties, see also, infra, n.2. The  Dabney report also criticized LDA, Inc. for failing to detail the results of  services it claimed to have performed, such as to review demographic and  economic trends, to identify the highest and best use of properties, and to  review existing and proposed zoning changes. Because this data did not relate to  blight, or a lack of maintenance in and around the Clubs, the Dabney report  stated that such omission did not invalidate the conclusions of LDA, Inc.


2
 Noting that The Dictionary of Real Estate Appraisal defines "blight" as a  failure to maintain the quality of real estate, Dabney focused on maintenance as  a key element contributing to blight. The Dabney report criticized LDA, Inc. for  neglecting to directly consider maintenance, but concluded that LDA, Inc.  presented information about the Clubs' surrounding areas that might serve as  proxies for "maintenance" both in an economic sense and general physical sense.


3
 The foreign jurisdictions studies included: (1) City of Austin, Texas Report;  (2) Analysis of Adult Entertainment Businesses in Indianapolis, Indiana; (3)  Analysis of the Relationship Between Adult Entertainment Establishments, Crime,  and Housing Values in Minneapolis; and (4) Study of the Effects of the  Concentration of Adult Entertainment Establishments in the City of Los Angeles.


4
 Section 18-76 "Rules for Operation" now states that:
Any person, firm partnership, or corporation licensed hereunder shall comply  with the following rules and regulations pertaining to the operation of the  adult entertainment establishment:
...
(7) No licensee shall permit any alcoholic beverages to be served, offered, or  consumed on the premises.
Violations of these rules and regulations may result in revocation of the  license.
Fulton County, Ga., Code  18-76 (1997) (effective Jan. 1, 1998, provided that  adult entertainment facilities holding adult entertainment licenses on Dec. 17,  1997, shall not be subject until Dec. 31, 1998).


5
 In all three cases, the Plaintiffs filed separate briefs in response to  Defendants' motion for summary judgment. However, the district court addressed  each argument as it related to the Plaintiffs as a group because each plaintiff  incorporated the briefs and arguments of the other plaintiffs. We employ the  same approach because Plaintiffs have incorporated each others' Briefs on  appeal.


6
 Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998), cert.  denied, 120 S.Ct. 1553 (2000).


7
 United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968).


8
 As the district court found that the Clubs did not have a vested right in the  renewal of their licenses, Plaintiffs' claim for just compensation pursuant to  the Fifth and Fourteenth Amendments also failed as a matter of law. Plaintiffs  do not contest this finding on appeal.


9
 The Clubs argue that the ordinance at bar is distinguishable from that in  Sammy's because Fulton County did not rely on the Twenty-first Amendment in  amending the ordinance. However, the district court correctly found that  "[e]ntirely apart from the Twenty-first Amendment, the State has ample power to  prohibit the sale of alcoholic beverages in inappropriate locations." 44  Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495 (1996). This  power is located in the inherent police power of every state to regulate to  promote public decency. Id.


10
 Although the Plaintiffs contend that Section 18-76 fails to meet this factor,  they present no evidence that Fulton County passed the ordinance to hinder the  communicative aspects of such conduct.


11
 For example, Defendants contend that the Supreme Court in Barnes upheld  Indiana's ban on public nudity without requiring any evidence of how the  government's interest was furthered. In fact, the Court found it difficult to  discern what governmental interest the legislation served because Indiana does  not record legislative history. However, the Court found that the history of  Indiana's public indecency statute, dating from 1831, evinced that the statute  furthered the government's interest in protecting societal order and morality.


12
 Although we might disagree that nude dancing contains any expression protected  by the First Amendment, the test has been given us. We will not merely go  through the motions of applying it.


13
 Given our decision, we need not address the Plaintiffs' argument that the  foreign studies relied upon by Defendants do not examine the connection between  drinking and nude dancing, and secondary effects. Cf. Diva's, Inc. v. City of  Bangor, 21 F.Supp.2d 60 (D.Me.1998) (holding unconstitutional ordinance enacted  in reliance on foreign studies which focused only on efficacy of land use and  zoning schemes in reducing crime).


14
 In their Reply Brief to the Motion For Summary Judgment, Defendants concede that  Mardi Gras has continually operated an adult entertainment establishment in  Fulton County since 1992, Flashers since 1991, Fannies since 1984, and Riley's  since 1983.


15
  Plaintiffs argue that the ordinance constitutes adjudicative action because they  occupy the only sites for adult entertainment; that Fulton County exempted them,  as a prior non-conforming use, from a 1992 zoning ordinance prohibiting adult  entertainment in establishments licensed to sell alcoholic beverages. The  district court found that Section 18-76 applies to all adult entertainment  establishments, whether existing or future, and relied on the averment of the  Deputy Director of Environment and Community Development to the effect that  numerous sites are available in Fulton County for other adult entertainment  establishments. The district court also found that Plaintiffs do not have a  vested property interest in the renewal of their license because, the Clubs were  not exempt from the county's legitimate exercise of its police powers in  furtherance of a substantial government interest. Accord, Goldrush II v. City of  Marietta, 267 Ga. 683, 696 (1997) (rejecting plaintiff's state and federal  constitutional claims).


16
 Although in their Brief Flashers and Fannies allege that the Defendants deprived  the Clubs of their right to substantive and procedural due process, they fail to  elaborate or provide any citation of authority in support of the former  allegation. Therefore, we are left to conclude that Flashers and Fannies have  waived this argument, and address only the claim for procedural due process. See  Fed. R. App. P. 28(a)(9); see also Continental Tech. Servs., Inc., v. Rockwell  Int'l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991).


17
 Plaintiffs had notice of the Defendants' contemplated action at least as early  as April 16, 1997, eight months prior to the amendment of Section 18-76. The  Clubs were represented on a specially formed Adult Entertainment Committee, and  had opportunity to discuss issues relating to the regulation at two public  meetings of this committee. Finally, the Board conducted two public hearings,  and permitted fifteen minutes to each Plaintiff's counsel, present at the first  hearing, in order to present the Clubs' concerns and the Clubs' studies.


18
 For example, Mardi Gras' complaint prays for a preliminary injunction on the  basis that "[t]he ordinance prohibiting the sale or consumption of alcohol on  the premises of adult entertainment facilities (the "Liquor Ordinance") is  facially invalid in that it ... constitutes a prior restraint...." See Mardi  Gras Complaint,  34. In fact, each of the nine legal causes of action asserted  by Mardi Gras relies specifically on the 1997 amendment to Section 18-76.


19
 In its Brief, Flashers and Fannies contend that the district court erred in  severing the prior restraint analysis from the question of the constitutionality  of Section 18-76 because that section is part and parcel of a licensing scheme  which operates as a prior restraint. However, the authority they cite is  inapposite. See 10280 Northfield Road, LLC v. Village of Northfield, 1996 U.S.  App. LEXIS 3662 (6th Cir.). In that case, the Village of Northfield adopted an  ordinance that sought to regulate adult entertainment businesses by enacting a  zoning and licensing scheme. See id.  The district court found that the  licensing scheme operated as an unconstitutional prior restraint, and attempted  to salvage the ordinance by severing the licensing scheme. See id. The  Sixth Circuit held that the district court had impermissibly rewritten the  ordinance because the ordinance was designed to function through the issuance or  rejection of conditional permits. See id. These facts are not presented  here.


20
 The record does not contain evidence of lease provisions involving the other  Plaintiffs.


