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Eleventh Circuit Approves of County’s Evidentiary Support for Adult Entertainment Ordinance

2/17/10

By Dana Maine and William J. Linkous, III
Yesterday, a panel of the Eleventh Circuit Court of Appeals issued a decision providing guidance on the evidentiary support necessary for enacting an adult entertainment ordinance.  The decision supports a government’s reliance on studies and empirical evidence of negative secondary effects when adopting these ordinances, and makes it more difficult for adult entertainment establishments to attack such ordinances with competing evidence.
In RLV Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, No. 08-17035, 2010 WL 520542 (11th Cir. 2010), the panel upheld the constitutionality of Fulton County’s Adult Entertainment Ordinance banning the sale, possession, or consumption of alcohol in adult entertainment establishments in the county.  The opinion reversed the decision of the district court, which found the ordinance unconstitutional.  Moreover, the Court came to a different conclusion than a prior Eleventh Circuit panel which found the evidence the county produced to support a previous ordinance insufficient.
The Eleventh Circuit in Flanigan’s held that the county now had sufficiently supported its ordinance with evidence in the form of studies from foreign (non-Fulton County) jurisdictions, its own study, and live witness testimony from citizens, including the chief of police and the chief judge of the juvenile court.  The Eleventh Circuit noted deficiencies with the adult entertainment club plaintiffs’ evidence that allegedly challenged the negative secondary effects findings.  In particular, it determined that data relating to the low number of 911 calls at various businesses was not convincing because it undercounted “victimless” crimes such as prostitution that are rarely reported.
The Eleventh Circuit emphasized that the evidentiary foundation upon which a local government relies in enacting an adult entertainment ordinance need not be perfect; it need only be reasonable.  The Court also held that it was not the role of courts to second guess the legislative prerogative of local governments, as long as the government has some reasonable justification for legislation which incidentally suppresses protected speech.
This opinion is critical to defense of adult entertainment ordinances in jurisdictions that have had clubs operating for some period of time.  In these locations, if the government attempts to pass a more restrictive ordinance, plaintiffs often rely on data showing a history of average call volumes to these locations to counteract the negative secondary effects evidence.  The Eleventh Circuit effectively extinguished this route of attack.
Please contact Dana Maine at Direct Dial: 770.818.1408 or[email protected] or Bill Linkous at Direct Dial: 770.818.1282 or[email protected] for more information on this decision.