Federal appeals panel strikes down county ban on alcohol at nude-dancing clubs

Friday, February 23, 2001


In a groundbreaking opinion, a three-judge panel of the 11th U.S. Circuit Court of Appeals this week struck down a Georgia county ordinance banning the serving of alcohol at nude-dancing establishments.

The decision marks one of the first instances where a court has determined that the government cannot rely on a secondary-effects rationale to regulate adult businesses when local studies show that the businesses do not harm the community.

In 1997, Fulton County amended its adult entertainment law to prohibit adult businesses from serving alcohol, arguing that mixing alcohol and nudity would create harmful secondary effects, such as increased crime and decreased property values.

The county passed the amendment even though a study by the county police department earlier in the year had shown no statistical evidence of increased crime at nude-dancing businesses that served alcohol. In fact, the study showed that there were greater incidents of police calls and reported crime at non-adult businesses that served alcohol.

That same year, six adult businesses commissioned a study that found the clubs caused no identifiable economic detriment to the community. In response, the county retained its own appraiser to inspect the area surrounding the clubs and review the clubs' study. The appraiser, however, also concluded the clubs caused no quantifiable “blight” upon their surroundings.

In 1998, four adult businesses challenged the law in federal court, arguing the ordinance infringed on their free-expression rights. In February 2000, U.S. District Judge G. Ernest Tidwell granted summary judgment to the county. He concluded that the ordinance was a content-neutral method of addressing harmful secondary effects associated with adult businesses.

On appeal, an 11th Circuit panel reversed on Feb. 20 in Flanigan's Enterprises, Inc. v. Fulton County.

The appeals court analyzed the ordinance under a test developed by the U.S. Supreme Court in its 1968 decision United States v. O'Brien. Under the O'Brien test, a regulation that impacts on expressive conduct must satisfy four elements:

  • The ordinance must serve a substantial interest.

  • The ordinance must further the government's substantial interest.
  • The governmental interest must be unrelated to the suppression of free expression.
  • The regulation must not be too restrictive.

The appeals court panel determined that the city's ordinance did not further the government's substantial interest in combating secondary effects.

“The evidence in the record relating to conditions in Fulton County shows unequivocally that property values in neighborhoods adjoining the Clubs have increased during the time the Clubs have been in existence, and that surrounding buildings show no signs of blight, or lack of physical maintenance,” the court wrote. “Moreover, the Fulton County police study found greater reported crime connected with establishments that served alcohol but did not feature adult entertainment.”

The county argued that it was entitled to rely on studies from other jurisdictions showing evidence of harmful secondary effects. But the 11th Circuit disagreed. “We do not think that Defendants had any reasonable justification for amending Section 18-76 when the county's own studies negated the very interests it purportedly sought to prevent,” the court wrote.

The judges did say that the defendants could ban all public nudity rather than targeting adult businesses.

“To be sure, Defendants may respond by enacting a ban on all public nudity; the Supreme Court has upheld that,” the panel wrote. “However, Defendants may not ban nude dancing in establishments licensed to sell liquor without any factual basis to support the claim that these establishments are connected with negative secondary effects.”

Cary Wiggins, one of the clubs' attorneys, said he was very pleased with the ruling.

“We view this ruling as a 'fork in the road' in First Amendment litigation,” he said. “In light of this ruling, we think that adult businesses will now see it fit to offer empirical evidence during the legislative process. By submitting empirical evidence before the legislature enacts a law, the justification for the law is diluted. That is, adult businesses now have a legitimate opportunity — indeed a protected right — to dispel the 'adverse secondary effects' myth.”

Larry Ramsey, attorney for the county, said no decision had been made whether to appeal. He declined comment on the 11th Circuit's ruling.

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