11th Circuit upholds Fla. county’s SOB ordinance against evidentiary challenge
5634 East Hillsborough Avenue, Inc. v. Hillsborough County, No. 07-14955, 2008 WL 4276370 (11th Cir. Sept. 10, 2008)
Eleventh Circuit upholds Hillsborough County, Fla. sexually oriented business ordinance against evidentiary challenge.
The Eleventh Circuit upheld a Hillsborough County sexually oriented business ordinance on appeal from the Middle District of Florida. According to the court, the only question at issue is “whether appellants have created a genuine issue of material fact with respect to whether the county met its evidentiary burden to show that its ordinances have the purpose and effect of suppressing secondary effects.”
5634 East Hillsborough (among others) disputed the methodology of secondary effects studies put forward by Hillsborough County and argued that their own businesses did not cause the kind of secondary effects studied therein. In particular, 5634 claimed that “calls for police help from one of appellants’ businesses compared favorably to non-adult businesses,” data which was not included in the county’s studies.
The court found that this testimony had no bearing on the county’s ordinance rationale: “Of course, binding case law has discounted the value of such 911 calls as indicative of the kind of secondary effects which are the focus of the County’s ordinances.”). Accordingly, the 11th Circuit held that 5634 East Hillsborough had not provided any evidence that would “create a genuine issue of fact.”