Posted by: Patricia Salkin | November 8, 2018

Eleventh Circuit Court of Appeals Denies Claims Challenging Ordinance Regulating Adult Businesses

This post was authored by Matthew Loeser, Esq.
In January 2013, the City of Brookhaven enacted a code to “regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City.” One month later, Stardust applied for an occupation tax certificate, as required by Article II of Chapter 15 of the Code of the City of Brookhaven, describing its business as “Retail—Smoke Shop, Tobacco; related accessories; gifts.” Stardust denied in its application that it would operate a sexually oriented business as defined by the Code. The City then brought a 255-count accusation against Stardust in Brookhaven Municipal Court, alleging Code violations. Stardust raised constitutional defenses to the charges, and filed a civil suit in the Superior Court of DeKalb County, Georgia, seeking to enjoin enforcement of the Code on the grounds that it violated provisions of the United States and Georgia Constitutions. Several months after filing suit in state court, Stardust filed suit against the City in federal district court, challenging the City’s denial of Stardust’s application for a sign permit. The district court granted the City’s motion for summary judgment, and Stardust appealed.
On appeal, Stardust contended that the Code was unconstitutional under the Constitution’s First Amendment because it operated as an impermissible restriction on Stardust’s constitutionally protected commercial speech. Specifically, Stardust challenged the definition of sexual device shop as a commercial establishment that “regularly features” sexual devices. The court found that the Code represented a time, place, and manner restriction that regulated where and when adult businesses may operate. Additionally, the City had a substantial interest in regulating negative secondary effects of adult businesses. Here, the City identified 73 sites inside its city limits where a licensed sexually oriented business could operate. As such, the Code left open sufficient alternative avenues of communication. The court therefore held that the Code was a zoning measure, and did not impermissibly infringe Stardust’s First Amendment right to display and arrange its products. Moreover, as the Code neither banned the sale or use of sexual devices in the City nor impeded any individual’s ability to engage in private, consensual sexual activity, the court rejected Stardust’s argument that the Code violated a substantive due process right to private sexual intimacy.
Stardust next claimed that its right to equal protection under the Fourteenth Amendment was violated because the City allowed Pink Pony, which was also a sexually oriented business operating within 100 feet of another sexually oriented business, to continue to operate while the City continued to issue citations to Stardust. Stardust further contended that Pink Pony was a similarly situated business because it was a sexually oriented business and both businesses were in existence when the City added the spacing requirements to the Code. The record reflected, however, that Pink Pony had lawfully operated in its location for more than 20 years before the City enacted the Code, whereas Stardust opened its doors after the Code was passed. Accordingly, the court affirmed the district court’s grant of summary judgment to the City.
Stardust, 3007, LLC v City of Brookhaven, 899 F3d 1164 (11th Cir. CA 2018)


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