By Dana Maine and William J. Linkous, III
In a very recent decision, the Eleventh Circuit Court of Appeals in Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Georgia, No. 08-17035, 2010 WL 520542 (11th Cir. 2010), issued a decision providing guidance on the evidentiary support necessary for enacting an adult entertainment ordinance. The decision confirms the appropriateness of reliance on studies and empirical evidence of negative secondary effects, and makes it more difficult for adult entertainment establishments to attack such ordinances with competing evidence.
In Flanigan’s, the Eleventh Circuit 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 held that Fulton County now had sufficiently supported its ordinance with evidence in the form of studies from other 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.
According to the Eleventh Circuit, 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 the 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 emergency call volumes to these locations to counteract the negative secondary effects evidence. The Eleventh Circuit effectively extinguished this route of attack. As a result of the decision in Flanigan’s, local governments can be confident that their adult entertainment ordinances will withstand challenge, provided that the ordinance is supported by reasonable evidentiary foundations showing unwanted secondary effects of adult entertainment. Those evidentiary foundations can include testimony, affidavits, citizen input, academic studies, studies from other jurisdictions, court opinions, real estate data, investigative reports, photographs, criminal records, transcripts of evidence introduced in meetings from other jurisdictions, and similar materials.
Freeman Mathis & Gary’s attorneys have assimilated a significant number of studies and academic articles that address the issue of the negative secondary effects of adult entertainment establishments. Any local government wishing to reexamine its ordinance should contact the firm’s attorneys.
For more information regarding this article, please contact Ms. Maine at 770.818.1408 or by email at [email protected]
, or Mr. Linkous at 770.818.1282 or by email at[email protected]