6th Circuit validates “secondary effects” evidence, upholds Knox County SOB ordinance
Richland Bookmart, Inc. v. Knox County, Tennessee, Nos. 07-6469, 08-5036 (6th Cir. Feb. 12, 2009)
6th Circuit validates “secondary effects” evidence, upholds Knox County SOB ordinance.
A Sixth Circuit panel upheld Knox County’s comprehensive (licensing, midnight closure, no alcohol, no nudity, 6-ft, no-touch, etc.) sexually oriented business (SOB) ordinance against a four-part challenge:
Three sexually oriented businesses, Richland Bookmart, Inc., Adult Video Superstore, Inc., and Raymond’s Place filed suit to challenge the constitutionality of a Knox County Ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. Plaintiffs attacked several provisions of the Ordinance, on the theory that the Ordinance is unconstitutional as applied to them and on its face. . . . Plaintiffs’ appeal raises four main issues. First, Plaintiffs claim that the Ordinance is an unconstitutional infringement on First Amendment freedoms that is not justified by adequate evidence that local sexually oriented businesses produce adverse “secondary effects” or that the Ordinance is designed to remedy such effects. Second, Plaintiffs claim that the definitions of “nudity,” “semi-nudity,” and “adult motel,” as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad. Third, they claim that the Ordinance enacts an unconstitutional prior restraint. Fourth, they claim that the Ordinance’s regulation of business hours is preempted by Tennessee law. Knox County cross-appeals, arguing that the district court erroneously ordered the severance of “racketeering” and “dealing in controlled substances” from the Ordinance’s civil disability provision. With regard to the issues presented by Plaintiffs’ appeal, we affirm the district court’s decision; with regard to the cross-appeal, we reverse the order to sever.
Bookmart’s attempt to cast doubt of Knox County’s “secondary effects” evidence focused on the allegedly arbitrary determination of an SOB-defining “sales threshold” of 35% (the ordinance defines a sexually oriented business which has for its “principle business purpose”—35%–the sale of sexually explicit material)—as a subset of the larger question of whether the “now-standard list of studies and judicial Opinions” regarding secondary effects should apply equally across the different SOB categories:
Plaintiffs submit that the County failed to carry its initial evidentiary burden, “however slight,” because the evidence cited in the Ordinance is not “germane” to at least two categories of adult businesses in Knox County – namely, “off-site consumption” bookstores or video stores such as Richland and Adult Video, and “combination” adult-mainstream stores that barely meet the Ordinance’s 35% threshold.
Rejecting this argument, the court held that “[r]equiring local governments to produce evidence of secondary effects for all categories created by every articulable distinction is a misapprehension of the Supreme Court’s holding that governments may rely on any evidence “reasonably believed to be relevant.” In other words, according to the 6th Circuit, courts should not be in the business—in SOB zoning cases—of burdening local government with technical modifications to its remedial use of secondary effects evidence, especially since Bookmart offered no expert testimony of its own capable of casting doubt on the county’s rationale.
With regard to Bookmart’s second challenge that “the definitions of “nudity,” “semi-nudity,” and “adult motel,” as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad,” the 6th Circuit determined that the ordinance was “narrowly tailored” and served the “government’s legitimate, content-neutral interests.” According to the court, the “narrowly tailored” language is not to be interpreted as demanding the “least restrictive means,” but rather is meant to be dependent on the satisfaction of a substantial government interest: “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”
On the overbreadth challenge:
Plaintiffs offer no arguments or evidence in support of their overbreadth claims beyond those proffered in support of their as-applied challenges. Since we find that Plaintiffs failed to show that protected speech is impermissibly burdened by any of the provisions challenged as applied, these same provisions cannot form the basis for a successful overbreadth attack.