County adopted an “Adult Entertainment Code” but later amended it to include a zoning ordinance setting forth the physical requirements for adult dancing establishment premises. The County also adopted a public nudity ordinance. Peek-A-Boo brought suit against the County alleging the ordinances were unconstitutional on First Amendment grounds. The case initially went up to the Court of Appeals and it decided that the ordinances violated First Amendment and emphasis was placed on whether or not the ordinance furthered the asserted purpose by the County. The case was remanded to determine whether credible evidence upon which the County relied could support its stated rationale for the ordinance.
Instead, the County enacted a new ordinance establishing a set of regulations aimed at addressing the operation of sexually oriented businesses. The zoning portion restricted the hours of operation, imposed a prohibition on serving alcoholic beverages and included physical requirements for the premises. The nudity portion of the ordinance banned the “state of nudity” but semi-nudity was permitted with several conditions.
The County relied on an abundance of information in support of its ordinance. The County also conducted a public hearing where experts had the opportunity to testify regarding the ordinance. The Zoning Board agreed with the County and concluded that sexually oriented businesses were correlated with negative secondary effects including property crimes, prostitution, sexual assault and other negative impacts on surrounding properties.
Peek-A-Book again brought a claim alleging the ordinance violated First Amendment protections. The lower court found in favor of the County and Peek-A-Boo appealed. The Court determined that the County produced a substantial body of evidence to support the rationale used for adopting the ordinance and that Peek-A-Boo failed to address much of the evidence. The Court agreed with the district court that the County’s ordinance was reasonably designed to serve a substantial government interest-reducing the negative secondary effects associated with sexually oriented businesses
Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 2011 WL 182819 (C.A. 11th Cir. 1/21/2011)
The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/200916438.pdf
