FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 23, 2000

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

No. 00-10173

 Non-Argument Calendar

_______________________

D. C. Docket No. 97-00195-CV-3-HL-5

ARTISTIC ENTERTAINMENT, INC., 

a Georgia Corporation d.b.a. Teasers, 

STEPHEN R. DEWBERRY,

Plaintiffs-Appellants,

versus

CITY OF WARNER ROBINS,

DONALD WALKER, Individually and in his 

capacity as Mayor of the City of Warner Robins, et al.,

Defendants-Appellees.

_______________________

Appeal from the United States District Court

for the Middle District of Georgia

_______________________

(August 23, 2000)

Before BIRCH, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
 1

 See Ordinance Regulating Adult Businesses (Mar. 3, 1997), in R1, Tab 1, Ex. A.

 2 See An Ordinance to Amend the Warner Robins Alcoholic Beverage Ordinance (Mar. 3,

1997), in R1, Tab 10, Ex. C.

2

I. BACKGROUND AND PROCEDURAL HISTORY

In 1997, the City of Warner Robins enacted an ordinance regulating and

requiring licenses for adult businesses (“the adult business ordinance”).1

 Among

other things, the ordinance established a licensing procedure for adult business and

prohibited the sale and consumption of alcohol on the premises. The city amended

its alcoholic beverage ordinance at the same time, bolstering the adult business

ordinance by preventing adult businesses from obtaining liquor licenses.2

 The City

Council approved these measures after an evidentiary hearing, and council

members had an opportunity to review studies of the secondary effects of adult

businesses in other cities as well as transcripts of testimony from numerous

Georgia officials.

Artistic Entertainment, Inc., and Stephen Dewberry brought suit in state

court against the City of Warner Robins and numerous officials in which they

challenged the ordinances’ constitutionality. Artistic Entertainment, Inc., is an

establishment known as “Teasers” that features nude dancing; Stephen Dewberry

holds the liquor license for Teasers. Defendants removed the case to case to

federal court, which enjoined the implementation of the adult business measures. 
3

Defendants appealed, and this court vacated the district court order, holding that it

did not give adequate weight to the evidentiary basis offered by Warner Robins in

support of its ordinances. The district court granted Defendants’ motion for

summary judgment and denied Plaintiffs’ motion for reconsideration. Plaintiffs

now appeal.

II. DISCUSSION

Plaintiffs raise a number of First Amendment challenges to the Warner

Robins ordinances on appeal. First, Plaintiffs argue the ordinances are contentbased restrictions and should be subject to strict scrutiny rather than the

intermediate standard of review applicable to content-neutral time, place, and

manner restrictions. Second, Plaintiffs object to the district court’s application of

the test established in United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673

(1968). We will consider these first two arguments together. Third, Plaintiffs

contend that the adult business ordinance is unconstitutionally vague. Finally,

Plaintiffs claim that the adult business ordinance’s licensing provisions are an

unconstitutional prior restraint on expression.

A. Establishing and Applying the Proper Standard of Review
 3

 See Cambell Dep. at 4-5, in R1, Tab 31.

4

Regulations that restrict protected expression based on its content are subject

to strict scrutiny. See City of Erie v. Pap’s A.M., – U.S. –, –, 120 S. Ct. 1382,

1389 (2000) (plurality). On the other hand, regulations that target undesirable

secondary effects of protected expression are deemed content-neutral, and courts

review them with an intermediate level of scrutiny known as the O’Brien test. See

id. Courts have long applied the O’Brien test to the regulation of adult

entertainment. See, e.g., Renton v. Playtime Theatres, Inc, 475 U.S. 41, 47-49, 106

S. Ct. 925, 929-30 (1986); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d

993, 996 (11th Cir. 1998). This circuit specifically has held that a prohibition on

the sale of alcohol at adult entertainment venues, much like the ordinances at issue

in this case, was content-neutral and subject to the O’Brien test. See Sammy’s, 140

F.3d at 996.

Plaintiffs’ attempts to evade the holding of Sammy’s are unavailing. First,

plaintiffs quote the deposition of one Warner Robins councilperson who

disavowed any concern with crime associated with Teasers and acknowledged that

he did not peruse any of the written materials given to the Council.3

 Courts are

hesitant to inquire into legislators’ motives, however, and we will “not strike down

an otherwise constitutional statute on the basis of an alleged legislative illicit
 4

 See Ordinance Regulating Adult Businesses § 1.010(a)(4)(b)(1), in R1, Tab 1, Ex. A.

 5

 See id. § 1.005.

5

motive.” O’Brien, 391 U.S. at 383, 88 S. Ct. at 1682.

Plaintiffs also claim that the adult business ordinance’s definition of “adult

business” impermissibly “turns on the characterization and the purpose of the

message,” Appellants’ Br. at 15, because it exempts mainstream theaters where

nudity and sexual expression are generally incidental to the purpose of

performances.4

 The ordinance itself, however, states that its purpose is to reduce

criminal activity and other “undesirable community conditions” associated with the

combination of adult entertainment and drinking.5

 Limiting the ordinance’s reach

to those venues reasonably perceived to pose a risk of creating such side effects

does not turn the ordinance into a content-based restriction.

Next, Plaintiffs argue that Warner Robins did not have sufficient evidentiary

support for its conclusion that banning the sale and consumption of alcohol at adult

businesses would actually curb crime or reduce the other “secondary effects”

targeted by the ordinances. According to Plaintiffs, city council members had no

personal experience or knowledge of crime patterns around Teasers, and the

studies considered by the Council were conducted out-of-state and failed to find an

explicit correlation between alcohol consumption, adult entertainment, and crime. 
6

The government need only have a “reasonable basis,” however, for believing that

its policy will indeed further a legitimate interest. See Sammy’s, 140 F.3d at 997. 

The Sammy’s court concluded that “the experience of other cities, studies done in

other cities, caselaw reciting findings on the issue, as well as [the officials’] own

wisdom and common sense” were sufficient. Id. Given the wealth of documentary

evidence and testimony presented to it, we conclude that the Warner Robins City

Council had an adequate basis for concluding that proscribing the sale and

consumption of alcohol would reduce the crime and other social costs associated

with adult businesses. See Renton, 475 U.S. at 51-52, 106 S. Ct. at 931.

B. Vagueness

Plaintiffs contend that the adult business ordinance’s exemption for

mainstream or traditional theaters renders its scope unconstitutionally vague. The

pertinent provisions of the ordinance are:

The definition of “adult entertainment business” shall not include

traditional or mainstream theater which means a theater, movie theater,

concert hall, museum, educational institution or similar establishment

which regularly features live or other performances or showings which

are not distinguished or characterized by an emphasis on the depiction,

display, or description or the featuring of specified anatomical areas or

specified sexual activities in that the depiction, display, description or

featuring is incidental to the primary purpose of any performance.

Performances and showings are regularly featured when they comprise
 6

 Ordinance Regulating Adult Businesses § 1.010(a)(4)(b)(1), in R1, Tab 1, Ex. A.

 7

 See id. § 1.010(a)(4)(b)(2). 

7

80% of all performances or showings.6

Plaintiffs fail to mention that the ordinance goes on to define a number of types of

adult venues, such as “adult theater” and “adult entertainment cabaret” that are

specifically included in the definition of adult businesses requiring a license to

operate.7

Plaintiffs complain that the ordinance does not define “performances and

showings,” but they ask for a precision of vocabulary that is both impossible and

unnecessary. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294,

2300 (1972). It is clear what sort of venue the “mainstream theater” exemption

would exclude from the ordinance’s licensing requirements, and if a business

owner is unsure, he may check the ordinance’s description of specific, covered

venues to determine if the ordinance applies. 

Plaintiffs also complain that the ordinance’s percentile standard, under

which businesses must obtain a license if more than twenty percent of their

performances feature specified sexual content that is more than incidentally related

to their purpose, does not state how many performances or what time period will

be factored into the equation. In fact, the “mainstream theater” exemption limits
8

the opportunity for arbitrary and discriminatory enforcement of the adult business

ordinance by establishing an objective standard. See Grayned, 408 U.S. at 113, 82

S. Ct. at 2302 (noting that it previously had found an ordinance overly vague in

large part because enforcement was based on subjective criteria). The ordinance

leaves the City some flexibility in measuring whether a venue falls under the

“mainstream theater” exemption, but we are satisfied that the exemption’s “80/20"

standard provides adequate notice to business operators and an adequate restraint

on arbitrary enforcement. See Mason v. Florida Bar, 208 F.3d 952, 959 (11th Cir.

2000).

Moreover, to the extent that the exemption for mainstream businesses is

“intended to carve out non-obscene and therefore protected displays of nudity in

artistically valuable . . . performances[, it] cannot be condemned for facial

vagueness.” Café 207, Inc. v. St. Johns County, 856 F. Supp. 641, 650 (M.D. Fla.

1994), aff’d, 66 F.3d 272 (11th Cir. 1995). “[B]ecause it is impractical if not

impossible to precisely describe in words all of the types of nude performances

falling within the protection of the First Amendment,” id. at 649, we cannot expect

such attempts to be especially eloquent. 

C. Prior Restraint
 8

 See Ordinance Regulating Adult Businesses § 1.060(a), in R1, Tab 1, Ex. A

9

Plaintiffs’ final argument is that the adult business ordinance’s licensing

regime operates as an unconstitutional prior restraint on expression because it does

not provide an adequate time limit on the City’s review of license applications. 

See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-30, 110 S. Ct. 596, 604-07

(1990) (discussing application of the prior restraint doctrine to nude dancing). The

adult business ordinance requires the City Council to approve or deny a license

application within forty-five days,8

 a time-frame this court held was reasonable in

Redner v. Dean, 29 F.3d 1495, 1500 (11th Cir. 1994). The ordinance also dictates

that the City Council “shall” approve an application if it complies with the

ordinance.

The problem, Plaintiffs argue, arises if the City, because of bad faith or

innocent bureaucratic delays, fails to act on an application before the deadline. In

Redner, this court held that a mandatory time limit was “illusory, in that the

Administrator’s failure to comply with the time limit does not necessarily allow the

applicant to begin engaging in the expressive activity for which the license is

sought.” 29 F.3d at 1500. The ordinance at issue in Redner did state that “the

applicant may be permitted to begin operating . . . unless and until the County

Administrator notifies the applicant of a denial of the application,” id. at 1500-01,
10

but the court found that provision insufficient (and the ordinance unconstitutional)

because it used the precatory word “may” rather than the mandatory word “shall.” 

See id. at 1501. Without such a guaranty, this court held that the ordinance “risks

the suppression of protected expression for an indefinite time period prior to any

action on the part of the decisionmaker or any judicial determination.” Id. 

Warner Robins’s ordinance does not include even the language deemed

inadequate in Redner. The adult business ordinance is silent on an applicant’s right

to begin operating his business if the city fails to act on his application. In light of

Redner’s holding, which clearly controls here, we can only conclude that the

Warner Robins adult business ordinance is facially violative of the First

Amendment; although it imposes a deadline on the City to consider an adult

business license application, it does not guaranty the adult business owner the right

to begin expressive activities within a brief, fixed time frame. 

III. CONCLUSION

We AFFIRM the district court’s application of the O’Brien intermediate

scrutiny standard to the challenged ordinances, as well as the district court’s

holding that the adult business ordinance was not unconstitutionally vague. In
11

light of our holding in Redner, however, we REVERSE the district court’s holding

that the adult business ordinance did not impose an unconstitutional prior restraint.