11th Circuit: County studies documenting negative secondary effects are sufficient for prohibition of alcohol at sexually oriented businesses
Flanigan’s Enterprises, Inc. v. Fulton County, Ga., No. 08-17035 (11th Cir., Feb. 16, 2010)
11th Circuit: County studies documenting negative secondary effects are sufficient for prohibition of alcohol at sexually oriented businesses.
The 11th Circuit upheld a Fulton County ordinance “prohibiting the sale, possession and consumption of alcoholic beverages on the premises of an adult entertainment establishment.” The court held that “it was reasonable for the County to rely on the voluminous evidence before it–including the many findings of [its] July 2001 report, the numerous foreign studies appended to it, and the live testimony of the chief of police and the chief judge of the juvenile court–and that the ordinance therefore survives intermediate scrutiny.” This evidence was gathered in one of two studies conducted by the county after the 11th Circuit struck down a similar ordinance in 2001. The first, the March 2001 study, which focuses exclusively on calls to the police, found that “adult entertainment establishments which served alcoholic beverages did not have a significant impact on the police department as it relates to an increase in calls for police service, nor an increase in crime as a secondary [e]ffect.” The second, the June 2001 study, which contained police reports, photographic evidence, anecdotal operations, and appended foreign studies, found that “various criminal activities occurring both inside and in the outer vicinity of the adult entertainment establishments located within unincorporated Fulton County.”
Flanigan’s objected that the June 2001 study’s “principal thesis–that the mixture of alcohol and nude dancing leads to crime” was “undercut” by the March 2001 study. According to the 11th Circuit, however:
[T]he clubs — and the district court — misapprehend the nature of our inquiry. We cannot simply survey the vast field of literature and declare unconstitutional any ordinance which fails to conform with our own sense of that course which is most prudent . . . Rather, we consider the evidence the municipality relied on in passing the ordinance, and determine whether such reliance was reasonable. Because the July 2001 report established negative secondary effects both criminal and urban, we hold that it was reasonable for the County to rely on it . . . We are called upon today only to consider the constitutionality of an ordinance targeting the incidental effects of expressive activity protected by the Constitution. The foundation upon which the County relied need not be perfect; it need only be reasonable. We emphasize that, in this context, the County need not offer advanced statistical evidence, nor refute every conceivable interpretation of the data, even if those interpretations may be more compelling than the one reached by the municipality. It need only show that it acted reasonably, and here, Fulton County has met this burden.