United States Court of Appeals,

Fifth Circuit.

No. 92–7291.

LAKELAND LOUNGE OF JACKSON, INC., Plaintiff–Appellee,

v.

CITY OF JACKSON, MISSISSIPPI, Defendant–Appellant.

Oct. 5, 1992.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The City of Jackson, Mississippi ("Jackson") amended its zoning ordinance to restrict adult

businesses to areas zoned for light industrial use and, with a use permit, some of the central business

district. The Lakeland Lounge of Jackson ("Lakeland"), which is such an establishment, challenged

the ordinance, and the district court declared it unconstitutional because t he members of the city

co uncil had not properly considered the secondary effects of sexually oriented businesses, so the

ordinance was not content-neutral. Alternatively, the court found that the ordinance did not provide

reasonable alternative avenues of communication. Finding no constitutional infirmity in what the city

did, we reverse.

I.

In September 1991, a nightclub o ffering t opless dancing opened in Jackson. The city

acknowledges that it t ried t o close the club down for technical code violations, because of great

public uproar, but failed. A few weeks later, another club opened.

In September, the mayor had directed the zoning administrator to begin the process for the

adopti on of some measure to address the public concern. The city attorney's office and the planning

department began to assemble materials concerning adult entertainment and to draft a new regulation.They received examples of other communities' zoning ordinances regulating adult businesses, studies

about the effects of such establishments upon their communities, and legal opinions. Several public

hearings were held to discuss the matter, including an open meeting of the planning board on January

21, 1992, to which five of the seven members of the city council were in vit ed and five attended.

Immediately following that meeting, and also on January 21, the city council met, and the ordinance

was presented but held for final adoption a week later.

In January 1992, Lakeland Lounge of Jackson was incorporated, for the purpose of operating

a restaurant/lounge with topless dancing. It received beer licenses from the city and state and

executed a lease for a property in an area zoned "general commercial."

On January 28, 1992, the city council adopted an amendment to Jackson's zoning ordinance,

seeking to disperse adult entertainment establishments. Such establishments were relegated to "light

industrial" zoned areas, and also could be located in the central business district if they obtained use

permits. Additionally, adult establishments could not be within 250 feet from each other or within

1,000 feet of any residentially zoned property, church, school, park, or playground. The provision

also gave pre-existing establishments three years to comply.

Lakeland filed a complaint in February 1992, seeking to have the ordinance declared

unco nst it utional and its enforcement enjoined. The trial court denied Lakeland's motion for a

temporary restraining order. After a bench trial, the court declared the ordinance unconstitutional

and permanently enjoined its enforcement. ––– F.Supp. ––––. Lakeland Lounge opened for business

soon afterward.

II.

The Jackson ordinance does not ban adult businesses outright but merely limit s the areas of

the city in which they may operate. It is thus properly analyzed as a form of time, place, and mannerregulation. City of Renton v. Playtime Theatres, 475 U.S. 41, 46, 106 S.Ct. 925, 928, 89 L.Ed.2d

29 (1986) (citing Young v. American Mini Theatres, 427 U.S. 50, 63 & n. 18, 96 S.Ct. 2440, 2449

& n. 18, 49 L.Ed. 2d 310 (1976)). As such a regulation, it presumptively violates the First

Amendment if it was "enacted for the purpose of restraining speech on the basis of its content," and

it must be "designed to serve a substantial government interest" and may "no t unreaso nably limit

alternative avenues of communication." I d. 475 U.S. at 47, 106 S.Ct. at 928. Cities may not regulate

sexually oriented establishments out of mere distaste for the message they communicate—that would

be content-based infringement upon expression entitled to at least some protection under the First

Amendment. S ee, e.g., Barnes v. Glen Theatre, ––– U.S. ––––, ––––, 111 S.Ct. 2456, 2460, 115

L.Ed.2d 504 (1991) (recognizing that nude dancing is "expressive conduct within the outer perimeter

of the First Amendment") (plurality opinion); s ee Renton, 475 U.S. at 46–49, 106 S.Ct. at 928–30

(discussing requirement of content-neutrality). Local governments, however, can restrict adult

businesses in order to control the bad "secondary effects"—such as crime, deterioration of their retail

trade, and a decrease in property values—that the establishments bring. See id. at 46, 106 S.Ct. at

928.

In determining whether the amended ordinance was actually content-neutral, the district court

followed the analysis laid out i n United States v. O'Brien, 391 U.S. 367, 376–77, 88 S.Ct. 1673,

1678–79, 20 L.Ed. 2d 672 (1968). The court stated that i t needed to determ i ne the predominant

factor motivating the city council in passing the ordinance; it concluded that the city had not shown

that that factor was concern over secondary effects.

The court first obse rved that the ordinance obviously, in its preamble, took note of the

secondary effects. Second, it stated that the city had attempted to regulate, rather than prohibit, the

adult business. Third, though, the court stated that the city did not show whether the existence of

secondary effects had a basis in fact or, more importantly here, "whether that factual basis was

considered by the [c]ity in passing the ordinance." The court held t hat t he cit y

council had aninsufficient factual predicate by which to base its ordinance upon secondary effects; therefore, the

city had not shown that the ordinance was content-neutral.

The district court based its analysis of the bases for the ordinance upon Renton, in which the

Court stated that a city may establish its interest in a regulation by relying upon evidence "reasonably

believed to be relevant to the problem that the city addresses." 475 U.S. at 51–52, 106 S.Ct. at 931.

The Renton Court held that in enacting an adult business regulation, a city's justifications were not

necessarily "conclusory and speculative" where the municipality based its opinion that such businesses

had bad secondary effects upon studies of other communities. Id. at 50, 106 S.Ct. at 930.

In the instant case, the district court held that the city had to show that it properly adopted

the zoning ordinance. It stated that there is no testimony that the members of the city council ever

looked at the studies about secondary effects or that they received any summary of those studies from

their staff. Although one council member testified that she had received materials about such studies,

they came from constituents; she did not testify that she had received copies of the material that the

city staffs used or that she had provided her materials to her colleagues.

Noting that it was a close question, the court ruled that the city council should have allowed

at least some presentation summarizing the secondary effects, upon which the council purported to

rely, and that the council had not produced any evidence that "it relied upon any formal studies to

reach the conclusion that there would exist secondary effects if these businesses would be allowed

to continue to operate." Concluding that t he cit y had not shown that the amendment was

content-neutral, the court held it was unconstitutional.

III.

We believe that the district court clearly erred and that the record shows that the city council

had sufficient information before it to enact a permissible ordinance. First, the office of planning, city1 In light of Renton's holding that a municipality may rely upon other cities' studies of

secondary effect, 475 U.S. at 50, 106 S.Ct. at 930, and discussion in Barnes of the possibility that

ordinances may be justified by their secondary effects, without any actual legislative finding, –––

U.S. at ––––, 111 S.Ct. at 2470 (opinion of Souter, J.), one might argue that legislative findings

are no longer be necessary, as the record as to secondary effects has already been made. We need

not reach such a conclusion to decide this case, however. attorney's office, and the ordinance review committee (a subcommittee of the planning board) drafted

the ordinance, and they unquestionably considered, and relied upon, the studies as to the secondary

effects of sexually oriented business while they were drafting the amendment. Further, the council

could properly place some reliance upon others to do research as state law requires that the planning

boar d make recommendations to the council regarding zoning amendments. We perceive no

co nst itutional requirement that the council members personally physically review the studies o f

secondary effects; such a holding would fly in the face of legislative reality. 1

Second, although the city council never received a written report or summary of the studies,

the city planning board held a public meeting at which the planning director and other city staff

members and citizens discussed secondary effects and the work that had gone into the preparation

of the proposed ordinance. As testimony and the official minutes of the meeting show, five of the

seven members of the city council were present at that meeting; as the ordinance passed by a

six-to-one vote, a majority of the council must have both voted for the ordinance and attended the

meeting.

Third, the language of the amendment indicates the council's concern wi th the secondary

effects. The preamble states as follows:

[T]he Planning Board and City Council of the City of Jackson, Mississippi, find that there is

substant ial evidence, including numerous studies, reports, and findings on the potential

harmful effect of adult entertainment uses made by other cities, experts, city planners, etc.,

which document that such uses adversely affect property values, cause an increase in crime,

encourage businesses to move elsewhere, and contribute to neighborhood blight.

It then asserts that it was "necessary, expedient and in the best interest" of the citizenry2 "[We] do not ask whether the regulator subjectively believed or was motivated by other

concerns, but rather whether an objective lawmaker could have so concluded, supported by an

actual basis for the conclusion. Legitimate purpose may be shown by reasonable inferences from

specific testimony of individuals, local studies, or the experiences of other cities." ( See also

11126 Baltimore Blvd. v. Prince George's County, 886 F.2d 1415, 1420 (4th Cir.1989) (intent as

set out in legislation's preambles relevant to determination of content neutrality), cert. granted,

judgment vacated, and case remanded on other grounds, 496 U.S. 901, 110 S.Ct. 2580, 110

L.Ed.2d 261 (1990). to regulate the operati on and location of adult entertainment establishments for the purpose of stemming a potential increase in the criminal activities and disturbances of the peace and

good order of the community, maint aining property values, preventing injuries to residential

neighborhoods and commercial districts, and pr o tecting and preserving the quality of life

through effective land use planning.

This language might not save a statute that was formulat ed wit hout specific attention to

secondary effects. Nevertheless, in context here, where (1) the drafters of the ordinance did rely upon

studies of secondary effects, (2) a majority of the councilmembers did receive some information about

the secondary effects during an open hearing of the planning board, and (3) nothing in the record

otherw ise suggests impermissible motives on the part of the councilmembers, the language of the

preamble shows the city council's awareness of the studies upon which the planning staff relied when

framing the ordinance and reflects that a reasonable legislature with constitutional motives could have

enacted the ordinance. S ee SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir.1988), cert.

denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). 2

IV.

Having decided that the city council had not properly considered the ordinance, the district

court did not need to determine whether the zoning plan provided sufficient alternative opportunities

for the regulated expression. It did so nevertheless, apparently foreseeing possible reversal on the

first issue or seeking to guide the city council's future deliberations.

The court stated that any regulation must prov ide reasonable alternative avenues of

communication for the protected expression. R enton, 475 U.S. at 54, 106 S.Ct. at 932. Basing its

analysis upon Renton and Woodall v. City of El Paso, 950 F.2d 255 (5th Cir.), modified, 959 F.2d3 See also the modified Woodall opinion, 959 F.2d at 1306.

1305 (5th Cir.1992), petition for cert. filed (July 15, 1992), it asserted that a court must consider

whether the regulation leaves available land that is physically, legally, and economically suited for

adult entertainment businesses. The court found that most of the land zoned for adult businesses was

actually unavailable; it then mentioned that four areas with eight to ten locations were available and

suitable. Noting that Lakeland argued that, under R enton, large available acreage and a substantial

number of sites are required in order reasonably to offer alternative avenues of expression, the court

held that those sites did not provide Lakeland with sufficient alternative sites for the carrying on of

its business; if other current and fut ure adult entertainment establishments were factored into the

calculus, the number of available sites would be reduced proportionately.

We disagree. First, the district court st at ed that an unspecified number of the proposed

location s were inadequate because they were "in remote areas of the city and are not in any area

where other retail or commercial development is located. Clearly this type of area would not be

reasonable from any macroeconomic analysis standpoint for any type of retail business, which would

be the general classification of topless cabarets."

This analysis is based upon an inco rrect view of which legal standard to apply. The initial

panel opinion in Woodall laid out a doctrine of economic impracticality, essentially stating that a site

was impractical if no adult business possibly could expect to profit by opening there. 950 F.2d at 261

n. 5. That section of the opinion, which presumably was the source of the district co urt 's

" macroeconomic" language, has been withdrawn and thus has no precedential value. With that

discussion deleted, Woodall merely states that "land cannot be found to be reasonably available if its

physical or legal characteristics made it impossible for any adult business to locate there." 950 F.2d

at 263. 3 The fact that these locations do not seem particularly desirable for economic reasons does

not matter. As the Supreme Court has noted, "The inquiry for First Amendment purposes is not

concerned with economic impact." Renton, 475 S.Ct. at 54, 106 S.Ct. at 932, ( q uoting Young v.4 See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 71, 101 S.Ct. 2176, 2183, 68 L.Ed.2d

671 (1981) (ordinance banning nude dancing in American Mini Theatres distinguished, because it

"did not affect the number of adult movie theaters that could operate in the city)". American Mini Theatres, 427 U.S. 50, 78, 96 S.Ct. 2440, 2456, 49 L.Ed.2d 310 (1976) (Powell, J.,

concurring)). As we have noted, "alternative sites need not be commercially viable." S DJ, 837 F.2d

at 1276–77 (citing Renton ). S ee also D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140,

147 (4th Cir.1991) (city not obliged to provide commercially desirable land).

Nothing in the instant record indicates that all or even most of the locations are inaccessible,

unsafe, or without utilities or infrastructure or that legal obstacles exist to their use. S ee Woodall I,

950 F.2d at 261–62; B asiardanes v. City of Galveston, 682 F.2d 1203, 1214 (5th Cir.1982). Thus,

although th e reco rd do es not permit us to say with precision how many additional sites exist, a

substantial number of potential sites do.

Moreover, there is no requirement in Renton, Woodall, or elsewhere that a specific proporti on

of a municipality be open for adult businesses or t hat a certain number of sites be available.

According to the record, two adult entertainment clubs and three adult bookstores were operating

in Jackson at the time of the trial; so including Lakeland Lounge, there are six such establishments

in the city. As a matter of arithmetic, even without the sites the district court stated were remote,

there are more "reasonable" sites available than businesses with demands for them, even if the five

previously existing businesses decided to move into the zoned areas (which they need not do for three

years under the amortization provisions of the ordinance). Given the limited demand fo r sit es for

sexually oriented businesses, this ordinance does not reduce the number of establishments that can

open in Jackson, so it does not limit expression. 4 When the "remote" areas of the city are included,

it is plain that Lakeland has many alternative locations for its business.

V.

We thus find that the Jackson City Council properly considered the secondary effects of adult5 See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29

(1986); see also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir.1988) ("The

[Renton] Court submitted the Renton ordinance to the analysis reserved for content-neutral

restraints, although the ordinance marked businesses by the content of their product."); Note, The

Content Distinction in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904, 1907–08

(1989) (explaining that Renton applies a "content-neutral" standard of review to "content-based

time, place, and manner regulations").

The Supreme Court in Barnes v. Glen Theatre, Inc., ––– U.S. ––––, 111 S.Ct.

2456, 115 L.Ed.2d 504 (1991), analyzed a public exposure statute pursuant to the

four-part test enunciated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20

L.Ed.2d 672 (1968). The O'Brien test applies to statutes without content-based

references; it includes an analysis of the extent to which the governmental interest is

related to the suppression of free expression. The Barnes decision did not suggest an

expansion of Renton's looser scrutiny for content-based statutes; the decision even states

that the time, place, and manner test was originally developed for expression taking place

in a "public forum" and that Renton was "at least one occasion" in which the Court

deviated from this application. ––– U.S. ––––, 111 S.Ct. at 2460.

6 City of Renton, 475 U.S. at 49, 106 S.Ct. at 929. business and provided sufficient alternative avenues o f expressio n for them. The judgment of the

district court is REVERSED, and this matter is REMANDED for further proceedings as appropriate.

POLITZ, Chief Judge, dissenting:

I must respectfully dissent because I find that the ordinance of the City of Jackson, Mississippi

violates the first amendment. The ordinance defines its regulatory scope on the basis of "adult"

content and is therefore not content-neutral; it may only be accorded the deferential review given

content-neutral regulations if it meets the requirements of a time, place, and manner restriction. 5 In

my view, these requirements are not met. The Jackson City Council has not demonstrated that its

predominant intent was to control negative secondary effects of sexually oriented bu sinesses. In

addition, even assuming the ordinance to be a content-neutral restraint of free speech, it fails because

alternative channels of communication of the protected speech at issue here are unavailable.

The ordinance does not qualify for the deferential review accorded content-neutral restraints

because it was not "designed to combat the undesirable secondary effects" of the regulated business. 67 Id. at 47, 48, 106 S.Ct. at 928, 929; SDJ, Inc., 837 F.2d at 1273 (quoting City of Renton's

reference to the legislatures' "predominant concern").

8 SDJ, Inc., 837 F.2d at 1274.

9 City of Renton, 475 U.S. 51–52, 106 S.Ct. at 931; SDJ, Inc., 837 F.2d at 1274.

10 SDJ, Inc., 837 F.2d at 1274.

11 Id. ("[W]e are persuaded that the City Council considered those studies themselves and not

merely the ordinances for which the studies provided support." (emphasis added)).

12 The Minutes of the January 21, 1992 Jackson City Planning Board Public Hearing reflect that

Quintus Greene, Director of the Office of Planning, made the following comments: Unless the predominant concern of the regulators was to prevent these alleged secondary effects, we

should not base our review of the ordinance on the presumption that it is a time, place, and manner

restriction unrelated to the suppression of free expression. 7 To assess the regulators' predominant

concern, "we intrude into the regulatory decision process to the extent that we insist upon objective

evidence of purpose—a study or findings." 8 Jackson had the burden of establishing t hat evidence

before the city council entitled the council to reach its conclusion. 9 The test does not inquire into the

council members' subjective beliefs but, rather, searches the legislative history of the ordinance for

"an actual basis" upon which an objective regulator could assess the purported secondary effects. 10

Although the City need not conduct its own independent study and is certainly entitled to rely upon

empirical data from other municipalities, the regulators must have such studies—and not just the

ordinance itself—before them. 11

Uncontroverted testimony before the district court reveals that the Jackson Planning Board

submitted no written materials to the city council. The ordinance preamble declares that the City of

Jackson intended to regulate secondary effects, yet the city council members did not see—much less

rely upon—the data which purportedly engendered their alleged "predominant" concerns. According

to the record, four of the seven city council members who voted for the ordinance did attend a public

meeting of the Jackson Planning Board, but the minutes of that meeting and the testimony before the

trial judge did not reflect that any empirical study data were orally recited or meaningfully discussed. 12Mr. Greene gave a brief summary of the research and intent that have gone into

drafting the proposed adult entertainment amendments to the Zoning Ordinance.

He mentioned that adult entertainment establishments would be permitted by right

in I–1 (Light) Industrial Districts and would be permitted by Use Permit in the C–4

Central Business District. He noted these regulations would prohibit such uses

within 1000 feet of any residentially zoned property, church, school, park or

playground. Also, no adult entertainment establishment could be located within

250 feet of any other such use. He displayed a map of the City which depicts all of

the I–1 Districts and the C–4 District, where such uses could be allowed.

The district court very accurately described the testimony evidence regarding the hearing:

The only testimony that the Court has concerning what went on at the hearing

came from the testimony of Quintus Greene of the City Planning and Zoning staff,

and Mrs. Barrett, the councilwoman. This testimony showed no consideration of

the materials sent by the American Planners Association nor any other type of

material that either the City Planning and Zoning people had or that Mrs. Barrett

herself had....

There is no testimony w hatsoever that the City Council members themselves ever

looked at the studies relied upon by its staff, or received any w ritten summary of

those studies, or received any oral summary of those studies.

(Emphasis added.) The majority would ignore these factual findings which wear the

buckler and shield of Fed.R.Civ.P. 52(a).

13 See SDJ, Inc., 837 F.2d at 1272.

14 See City of Renton, 475 U.S. at 51, 106 S.Ct. at 931. One city council member, Margaret C. Barrett, did receive some materials regarding secondary effects

from her constituents, but she did not circulate this data to her colleagues on the council. Because

t he council did not examine even an extract of the studies upon which its predominant co ncerns

purportedly rested, I find no basis to justify reviewing this ordinance as a content-neutral regulation.

The City used the pretext of technical code violations to attempt to close Jackson's first adult

entertainment club. It would appear that the ordinance's preamble is but another such.

The facts of this case stand in stark contrast to those reviewed by the SDJ, Inc. court, wherein

a specially compiled report of community effects was filed with and ado pted by the city council. 1 3

Similarly, the Renton Court quot es t he material before the Renton City Council which described

secondary effects of adult entertainment and study results. 14 Indeed, the B asiardan es v. City of15 682 F.2d 1203 (5th Cir.1982).

16 Basiardanes, 682 F.2d at 1215.

17 City of Renton, 475 U.S. at 50, 106 S.Ct. at 930; SDJ, Inc., 837 F.2d at 1273.

18 The City had originally argued that a ceiling of 1,043 acres were available but retreated from

this position when faced with evidence regarding a restrictive covenant on 163 acres.

19 City of Renton, 475 U.S. at 53, 106 S.Ct. at 932.

20 SDJ, Inc., 837 F.2d at 1277. Galveston 15 court objected that "there [was] no evidence in the record t hat the Galveston City

Council passed [the ordinance] after careful consideration or study of the effects of adult theaters on

urban life." 16

In addition, I am not persuaded that the Jackson ordinance passes constitutional muster even

as a time, place, and manner restriction. Even a content-neutral ordinance regulating protected

speech must be narrowly tailored to serve a substantial governmental interest and mu st allow for

reasonable alternative avenues of communication. 17 The Jackson ordinance bans "[a]dult arcades,

adult bookstores, adult cabarets, adult entertainment establishments, adult motels, and adult motion

picture theaters" from all areas except those zoned as light industrial. In the light industrial zones

such establishments may not be located within 250 feet of each other or 1,000 feet from any

residentially zoned property

, church, school, park, or playground. By the City's own account to the

district court, only 879 acres of Jackson's approximate 70,400 acres are available for adult

entertainment uses. 18 This is approximately 1.2 percent of the land mass o f the City, as compared

with the more than 5 percent which was available in Renton. 19 In the district court the City argued

that 21 general areas were available; it presented testimony regarding 32 specific sites. By contrast,

the SDJ, Inc. court, which admittedly analyzed an o rdinance in the much larger city of Houston,

nonetheless reviewed stronger evidence. One expert responsible for analyzing only 20 percent of the

City specified 40 available sites in this porti on alone. Other evidence demonstrated that at least 100

and, perhaps, up to tens of thousands of alternative sites existed. 20 Accordingly, accepting Jackson's21 950 F.2d 255 (5th Cir.), modified, 959 F.2d 1305 (5th Cir.1992).

22 City of Renton, 475 U.S. at 54, 106 S.Ct. at 932. argument at full face value, its list of the available sites is less than impressive.

From my review of the reco rd I cannot, however, accept the City's list of sites. I cannot

because I cannot justify dismissing the district court's factual findings in this case. The district court

found only four available areas containing eight to ten prospective sites. This finding is manifestly

not clearly erroneous. Although the court makes o ne reference to macroeconomics, which was

discussed in the vacated porti on of Woodall v. City of El Paso, 21 the tr ial court also discounted

proposed sites due to physical impos sibilities. The district court does not individually apply each

reason for unavailabil

it y t o each site rejected. But the district court's detailed discussion of the

available locales nonetheless reveals that it did not place upon the City a duty of providing "sites at

bargain prices." 22 For example, the trial court considered warehouses as available because they could

be converted to lounges. It also considered a lot next to a slaughterhouse an available adult

entertainment site. Referencing the Renton economic rule, the trial court specifically discounted

Lakeland's arguments that lack of parking rendered certain business district sites inadequate.

At the very least, I must conclude that this case should be remanded for co nsideration

pursuant to our modifications of Woodall. The record clearly shows that physical impossibility, rather

than the Woodall macroeconomics theo ry, occasioned a discounting of a majority of the City's

proposed 879 acres. The district court described one 300–acre site which lacked physical access as

"swampland." Another large site in the northwest sector of the City was described as a floodplain.

The testimony of Lakeland's expert also revealed that other alleged sites were adjacent to high voltage

power lines or within 1,000 feet of a prohibited use. I therefore must disagree with the majority's

conclusion that "nothing in the instant record indicates that al l or even most of the locations are

inaccessible, unsafe, or without utilities or infrastructure or that legal obstacles exist to their use."I respectfully dissent.