Very Intimate Pleasures Loses Another Round in Berlin, CT
Posted by NPNAdmin at 5/23/2008 6:47 PM 
Categories: Legal Strategies,The Berlin CT Experience,First Amendment,Ordinances and Regulations,What You Can Do,Secondary Effects
Categories: Legal Strategies,The Berlin CT Experience,First Amendment,Ordinances and Regulations,What You Can Do,Secondary Effects
Congratulations to NO V.I.P. in Berlin, CT. The Connecticut Supreme Court just upheld Berlin's ordinance that requires adult-themed businesses to keep at least 250 feet away from residential zones. Very Intimate Pleasures, an adult toy and video shop, had tried to argue that this ordinance was invalid because it had been passed by the town council rather than the town's planning and zoning commission. The Hartford Courant reports:
Silver has his work cut out for him. American courts have generally indicated they are comfortable with today's body of secondary effects studies and how municipalities rely on them. For example:
Connecticut Attorney General Files Amicus Brief to Support Town of Berlin; "Off-Site" Sexually Oriented Businesses are Fair Game for Zoning
[From the amicus brief:] Although most of these studies considered the secondary effects of all types of [sexually oriented businesses], it should be noted that the Indianapolis Study [PDF link] and the Oklahoma City study [PDF link 1, PDF link 2] focused specifically on “adult bookstores.” In the Indianapolis study, approximately 75% of real estate appraisers surveyed responded that an adult bookstore would have a significant negative effect on the value of both residential and commercial properties within a one block radius of the store. See Indianapolis Study, pp. 34 and 51. Most of these appraisers estimated that the decrease in residential property values would be between 1 and 20%, but 21% of the appraisers predicted that the loss would exceed 20%. Id., p. 34. Similarly, in the Oklahoma City Study, 74% of responding real estate appraisers indicated that an adult bookstore within one block of a residential neighborhood would decrease property values. Thirty two (32) percent of these appraisers believed that the decline would exceed 20%, while forty two (42) percent believed that the decline would be between one and twenty percent. City of Oklahoma City, Community Development Department, Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers (March 3, 1986). As the Fifth Circuit recently concluded, “[t]he Indianapolis and Oklahoma City studies support the belief that off-site sexually-oriented businesses cause harmful secondary effects to the surrounding area in the form of decreased property value.” H and A Land Corp. v. Reliable Consultants, Inc., No. 05-11474, 2007 U.S. App. Lexis 3941 at *12 (5th Cir. Feb. 22, 2007).
US Fifth Circuit Appeals Court Affirms that Evidence of Secondary Effects of "Off-Site Consumption" Adult Enterprises Is Sufficient To Justify Zoning
Kennedale’s ordinances purport to protect against harmful secondary effects. The Indianapolis and Oklahoma City studies support the belief that off-site sexually oriented businesses cause harmful secondary effects to the surrounding area in the form of decreased property value. So long as they are not relying on shoddy data or reasoning, we afford substantial deference to cities with regards to the ordinances they enact. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring) (noting that “a city must have latitude to experiment” and “courts should not be in the business of second-guessing fact-bound empirical assessments of city planners”). The Indianapolis survey, in particular, was drafted by experts, pretested, and administered to a large, national pool of respondents. It is not “shoddy.” We therefore find that Kennedale has produced evidence that it could have reasonably believed was relevant, and thus could have properly relied upon. The ordinances are narrowly tailored to advance a substantial governmental interest...
[We'd also like to pass along an insight from a lawyer experienced in adult enterprise litigation. Adult bookstore customers like to pay in cash. A lot of cash piles up in the store. The store becomes an attractive target for robbers. To this we add that adult enterprises often locate near highways, further increasing the attraction for criminals looking to make a quick getaway.]
US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002) (emphasis added)
...Speech can produce tangible consequences. It can change minds. It can prompt actions. These primary effects signify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by speech.
Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing speech...
A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.
US Appeals Court Upholds Daytona Zoning and Public Nudity Ordinances; No Grandfathering for Lollipop's Gentlemen's Club; Rebutting Daniel Linz (7/07, emphasis added)
Under O’Brien’s second prong, a city must establish that the challenged ordinance furthers a substantial government interest. Pap’s A.M., 529 U.S. at 296 (plurality opinion).[19] It has been by now clearly established that reducing the secondary effects associated with adult businesses is a substantial government interest “that must be accorded high respect.” City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring in the judgment) (quotation marks omitted);[20] see also Pap’s A.M., 529 U.S. at 296 (plurality opinion) (“[C]ombating the harmful secondary effects associated with nude dancing [is] undeniably important.”); Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir. 2003) (“It is beyond peradventure at this point in the development of the doctrine that a state’s interest in curbing the secondary effects associated with adult entertainment establishments is substantial.”)...
Our opinion in Peek-A-Boo Lounge is consistent with Justice Kennedy’s concurrence in Alameda Books and with Renton. There, a panel of this Court held that “[t]o satisfy Renton, any evidence ‘reasonably believed to be relevant’ -- including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion -- may form an adequate predicate to the adoption of a secondary effects ordinance,” Peek-A-Boo Lounge, 337 F.3d at 1268, and we remanded that case with specific instructions to uphold the ordinance “provided that the County[’s] . . . judgment is still supported by credible evidence, upon which [it] reasonably relies,” id. at 1273 (emphasis added).
Here, Lollipop’s argument that the City’s evidence is flawed because it consists of “anecdotal” accounts rather than “empirical” studies essentially asks this Court to hold today that the City’s reliance on anything but empirical studies based on scientific methods is unreasonable. This was not the law before Alameda Books, and it is not the law now. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (reiterating that a city need not “conduct new studies or produce evidence independent of that already generated by other cities” (quoting Renton, 475 U.S. at 51-52)); Pap’s A.M., 529 U.S. at 300 (plurality opinion) (criticizing the dissent for “ignor[ing] Erie’s actual experience and instead requir[ing] . . . an empirical analysis”). Rather, the City of Daytona Beach could reasonably rely upon “[c]ommon sense,” see Bellanca, 452 U.S. at 718, “its own experiences,” see Pap’s A.M., 529 U.S. at 300 (plurality opinion), “the experiences of . . . other cities,” Renton, 475 U.S. at 51, or city officials’ local knowledge, see Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring in the judgment) (“The Los Angeles City Council knows the streets of Los Angeles better than we do. It is entitled to rely on that knowledge . . . .” (citations omitted)); see also Pap’s A.M., 529 U.S. at 297-98 (plurality opinion).
To be sure, as the Alameda Books plurality admonished, the City cannot “get away with shoddy data or reasoning,” and its evidence must “fairly support” its rationale. See 535 U.S. at 438 (plurality opinion). But this is simply another way of saying that the City’s reliance on evidence supporting its rationale must be reasonable. Anecdotal evidence is not “shoddy” per se. At most, Lollipop’s experts’ studies suggest that the City could have reached a different conclusion during its legislative process about the relationship between adult theaters and negative secondary effects. But demonstrating the possibility of such an alternative does not necessarily mean that the City was barred from reaching other reasonable and different conclusions. See G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 639 (7th Cir. 2003) (“Although this evidence shows that the [town] might have reached a different and equally reasonable conclusion regarding the relationship between adverse secondary effects and sexually oriented businesses, it is not sufficient to vitiate the result reached in the [town’s] legislative process.”); see also Alameda Books, 535 U.S. at 437 (plurality opinion) (noting that a city “does not bear the burden of providing evidence that rules out every theory . . . that is inconsistent with its own”).
Our review is designed to determine whether the City’s rationale was a reasonable one, and even if Lollipop’s demonstrates that another conclusion was also reasonable, we cannot simply substitute our own judgment for the City’s. See Peek-A-Boo Lounge, 337 F.3d at 1273; see also Barnes, 501 U.S. at 583 (Souter, J., concurring in the judgment) (“At least as to the regulation of expressive conduct, ‘[w]e decline to void [a statute] essentially on the ground that it is unwise legislation . . . .’” (quoting O’Brien, 391 U.S. at 384 (alterations in original))); Renton, 475 U.S. at 52 (“It is not our function to appraise the wisdom of [the city’s] decision to [regulate] adult theaters . . . .” (second alteration added and quotation marks omitted)); cf. Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (“[C]ourts should not be in the business of second-guessing fact-bound empirical assessments of city planners.”).
The City of Daytona Beach relied on, among other things, the Supreme Court’s decisions in Bellanca, LaRue, Barnes, and Pap’s A.M.; numerous police reports of criminal activity -- including prostitution and assaults on police officers -- in and around adult theaters; undercover police investigations that revealed numerous violations of City ordinances by adult theaters; the City’s police chief’s documentation of criminal activity in and around adult theaters; CAD data showing calls-for-service to police dispatchers from areas near adult theaters; extensive testimony taken in Function Junction, 705 F. Supp. at 547-48; studies conducted by Boston and Detroit showing that adult businesses tend to increase urban blight; studies of urban blight and decay in Daytona Beach; controlled laboratory studies showing a correlation between alcohol and sexual conduct; anecdotal accounts from local business owners about increased crime in and around adult theaters; and newspaper articles describing increases in problems related to nudity and alcohol surrounding events such as Spring Break and Black College Reunion. Because Lollipop’s has failed to cast direct doubt on the aggregation of evidence that the City reasonably relied upon when enacting the challenged ordinances, we hold that the ordinances further a substantial government interest under O’Brien.
Moreover, a close examination of Lollipop’s experts’ studies calls into question their stated conclusion that they “cast grave doubt” on the City’s evidence that adult theaters increase crime, and, equally important, the studies do not even purport to address the City’s evidence that adult theaters tend more generally to perpetuate urban blight and decay. First, one underlying methodological problem with both studies suggests that they cast little or no doubt on the City’s evidence that nudity in establishments that serve alcohol encourages “prostitution, . . . undesirable behavior . . ., [and] sexual, lewd, lascivious, and salacious conduct among patrons and employees . . . in violation of law and [en]dangers . . . the health, safety and welfare of the public.” See Ordinance 81-334 § 2. The experts’ studies are based solely on CAD data, which, in lay terms, is essentially 911 emergency call data. Relying on such data to study crime rates is problematic, however, because many crimes do not result in calls to 911, and, therefore, do not have corresponding records in the City’s CAD data.[31] This is especially true for crimes, such as lewdness[32] and prostitution, that the City sought to reduce by enacting the challenged ordinances. See Ordinance 02-496 § 5 (seeking to reduce “lewd and lascivious behavior, prostitution, sexual assaults and batteries, . . . other criminal activity, [and the] degradation of women”); Ordinance 81-334 § 2 (seeking to reduce “prostitution, . . . undesirable behavior, . . . [and illegal] sexual, lewd, lascivious, and salacious conduct among patrons and employees” of adult theaters); see also Ordinance 03-375 § 4 (relying on legislative record for Ordinances 81-334 and 02-496).
Such crimes are often “victimless,” in the sense that all of those involved are willing participants, and, therefore, they rarely result in calls to 911. College students on Spring Break are unlikely to call 911 after a wild night out on the town despite having participated in exactly the sort of activity that the City’s nudity ordinances were enacted to reduce. Likewise, an encounter between a prostitute and a “john” rarely leads to a 911 call. By contrast, the City’s “anecdotal” evidence may be a more accurate assessment of such crimes because it is not based on a data set that undercounts the incidents of such “victimless” crimes. Cf. World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1195-96 (9th Cir. 2004) (“Anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects.” (citation and alteration omitted)).[33]
A second problem with Lollipop’s experts’ studies is that, even if the underlying CAD data fully reflected all of the conduct that Daytona Beach sought to reduce, the experts appear to draw conclusions that overstate the underlying data. For example, the study that focuses on Ordinance 81-334 concludes that “crimes against persons, crimes against property, and sex crimes, including both rape and prostitution[,] are not more common in areas with adult businesses than they are in similar control areas.” (Experts’ Report 2.) But the experts’ own underlying data suggests otherwise -- for three of the six pairs of study and control areas that the experts examined, “the study areas [i.e., areas with adult theaters,] do show significantly higher rates of crime than the control areas.” (Id. at 29-30 (emphasis added).)
The experts attempt to explain away this result by pointing to the other three pairs -- two show no “significant” difference between study and control areas, and one shows a significantly higher crime rate in the control area than the study area. The experts assert, without much discussion, that “[t]his mixed pattern” shows that “factors other than the presence of a nude cabaret are affecting rates of crime.” (Id. at 30.) The experts are no doubt correct that factors other than the presence of adult theaters affect crime rates in Daytona Beach; crime is plainly caused by many factors. But that does little to undermine the City’s conclusion that adult theaters also affect crime rates, especially when the experts’ own analysis shows a statistically significant correlation between adult theaters and increased crime in half of the areas in the study.[34]
Finally, both studies focus only on criminal activity and do not even purport to address the connection between adult theaters and urban blight. Ordinance 03-375, which amended Ordinance 02-496, was supported by testimony from Function Junction that adult theaters promote and perpetuate urban blight, which in Daytona Beach was characterized by “a significant percentage of deteriorating structures; a large number of small . . . lots, which did not allow cars; a notable parking problem; a high incidence of crime, particularly, on the beachside; and a large percentage of antiquated, underground utility systems, such as drainage, water and sewer systems.” 705 F. Supp. at 547. Lollipop’s experts’ studies examine only one of these conditions -- high crime rates -- and, notably, do not address at all the City’s evidence that adult theaters tend to perpetuate these other features of urban blight. Although Lollipop’s experts argue that the testimony provided in Function Junction was based on unreliable data and methodologically unsound analysis, we repeat that the City’s reliance on such evidence need only have been reasonable, and it was.
In short, the CAD data relied on by both studies may substantially undercount incidents of many of the types of crime that the City sought to reduce; the data that the studies did analyze show some statistically significant correlations between adult theaters and increased criminal activity; and the studies completely fail to address evidence of increased urban blight and decay that the City reasonably relied on when enacting Ordinance 03-375. Thus, Lollipop’s has failed to cast direct doubt on all of the evidence that the City reasonably relied on when enacting the challenged ordinances. See Peek-A-Boo Lounge, 337 F.3d at 1268 (noting that “the government must rely on at least some pre-enactment evidence” (emphasis in original)); Wise Enters., Inc. v. Unified Gov’t of Athens-Clarke County, 217 F.3d 1360, 1364 (11th Cir. 2000) (noting that a municipality “must have some factual basis” for its rationale (emphasis in original) (quotation marks omitted)); see also World Wide Video, 368 F.3d at 1195 (explaining that a city needs only “some” evidence to support its ordinances); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 481 (5th Cir. 2002) (“Renton teaches us that the government must produce some evidence of adverse secondary effects . . . .” (emphasis in original) (citation omitted)). Accordingly, we hold that Ordinances 81-334, 02-496, and 03-375 further a substantial government interest under O’Brien.[35]
See also:
Porn Merchant Implies: Host Community Put at Risk So Outsiders Might Enjoy Themselves
"We'll be helping the community, maybe not Berlin, but surrounding communities," [VIP general manager Gary] Porter said jokingly, "community service is what we're all about."
Notorious Pornographer: Giant Porno Stores Not Appropriate for Residential Neighborhoods (explicit language)
Victory in Berlin, CT: Court Rules Town Council Has Authority to Enact Zoning (7/13/08)
Citizens, Officials Use Zoning to Protect Quality of Life in Berlin, Connecticut (11/2/06)
Journal of Planning Literature: Adult Bookstores Often Increase Fear of Crime, Discourage Walking
The land uses that line up a street or surround a public space are crucial for their safety. Abandoned buildings, liquor stores, seedy motels, bars, check-cashing establishments, pawnshops, and adult bookstores and movie theaters can generate crime because they can encourage antisocial behavior, concentrate lucrative targets, and attract potential criminals (Spelman 1993; Block and Block 1995). Such uses often give a neighborhood a bad reputation and increase the fear of crime.
NoPornNorthampton Reaches Out to Springfield Neighborhood with Advice on Adult Enterprises (4/30/07)
Springfield police dispatch reports from December 1998 through April 2007 paint a picture of burglaries, panic alarms, ambulance calls and altercations in and around the Amazing.net store at Apremont Triangle...
Springfield Police Commissioner: "...it is fair to say that 'Amazing' constitutes an attractive nuisance that contributes to blighted conditions there"
Setback for Love Shack in Johns Creek, Georgia (2/22/08)
Since the inception of Johns Creek in 2006, the city has been trying to get John Cornetta, a regional porn shop operator, to comply with the city's adult-use zoning ordinances.
Struggle Over "Love Shack" in Georgia; New City Adopts State-of-the-Art Adult-Use Ordinance
The Johns Creek SOB ordinance ( PDF, 5.9 MB ) was adopted [in December 2006]. In many aspects it appears to be the 'state of the art' in adult-use regulations. It cites the latest relevant court cases and many recent secondary effects studies, and addresses some of the dodges adult businesses have used to try to get around ordinances elsewhere (see "Spanish Popeye").
Adult Products Store Vows Federal Court Fight Against Berlin (5/20/08)
[Laura] Michaud helped to organize residents in her Webster Heights neighborhood against VIP in 2006 when she read about the company's plans to move next door. She blogs about the issue at http://novip.wordpress.com/, and she used to keep her neighbors aware of coming meetings with a large sign on her lawn.
"The whole neighborhood now really knows each other," she said...
Now, [VIP attorney Daniel] Silver will argue in federal court in Bridgeport that the ordinance is unconstitutional because it overrides VIP's First Amendment right to sell items such as books and magazines...
"The studies that have been relied upon by the town ... and other municipalities across the country have not addressed whether or not my client's proposed business actually would create these so-called secondary effects," Silver said. "There have been a number of studies that show it does not."
Silver has his work cut out for him. American courts have generally indicated they are comfortable with today's body of secondary effects studies and how municipalities rely on them. For example:
Connecticut Attorney General Files Amicus Brief to Support Town of Berlin; "Off-Site" Sexually Oriented Businesses are Fair Game for Zoning
[From the amicus brief:] Although most of these studies considered the secondary effects of all types of [sexually oriented businesses], it should be noted that the Indianapolis Study [PDF link] and the Oklahoma City study [PDF link 1, PDF link 2] focused specifically on “adult bookstores.” In the Indianapolis study, approximately 75% of real estate appraisers surveyed responded that an adult bookstore would have a significant negative effect on the value of both residential and commercial properties within a one block radius of the store. See Indianapolis Study, pp. 34 and 51. Most of these appraisers estimated that the decrease in residential property values would be between 1 and 20%, but 21% of the appraisers predicted that the loss would exceed 20%. Id., p. 34. Similarly, in the Oklahoma City Study, 74% of responding real estate appraisers indicated that an adult bookstore within one block of a residential neighborhood would decrease property values. Thirty two (32) percent of these appraisers believed that the decline would exceed 20%, while forty two (42) percent believed that the decline would be between one and twenty percent. City of Oklahoma City, Community Development Department, Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers (March 3, 1986). As the Fifth Circuit recently concluded, “[t]he Indianapolis and Oklahoma City studies support the belief that off-site sexually-oriented businesses cause harmful secondary effects to the surrounding area in the form of decreased property value.” H and A Land Corp. v. Reliable Consultants, Inc., No. 05-11474, 2007 U.S. App. Lexis 3941 at *12 (5th Cir. Feb. 22, 2007).
US Fifth Circuit Appeals Court Affirms that Evidence of Secondary Effects of "Off-Site Consumption" Adult Enterprises Is Sufficient To Justify Zoning
Kennedale’s ordinances purport to protect against harmful secondary effects. The Indianapolis and Oklahoma City studies support the belief that off-site sexually oriented businesses cause harmful secondary effects to the surrounding area in the form of decreased property value. So long as they are not relying on shoddy data or reasoning, we afford substantial deference to cities with regards to the ordinances they enact. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring) (noting that “a city must have latitude to experiment” and “courts should not be in the business of second-guessing fact-bound empirical assessments of city planners”). The Indianapolis survey, in particular, was drafted by experts, pretested, and administered to a large, national pool of respondents. It is not “shoddy.” We therefore find that Kennedale has produced evidence that it could have reasonably believed was relevant, and thus could have properly relied upon. The ordinances are narrowly tailored to advance a substantial governmental interest...
[We'd also like to pass along an insight from a lawyer experienced in adult enterprise litigation. Adult bookstore customers like to pay in cash. A lot of cash piles up in the store. The store becomes an attractive target for robbers. To this we add that adult enterprises often locate near highways, further increasing the attraction for criminals looking to make a quick getaway.]
US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002) (emphasis added)
...Speech can produce tangible consequences. It can change minds. It can prompt actions. These primary effects signify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by speech.
Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing speech...
A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.
US Appeals Court Upholds Daytona Zoning and Public Nudity Ordinances; No Grandfathering for Lollipop's Gentlemen's Club; Rebutting Daniel Linz (7/07, emphasis added)
Under O’Brien’s second prong, a city must establish that the challenged ordinance furthers a substantial government interest. Pap’s A.M., 529 U.S. at 296 (plurality opinion).[19] It has been by now clearly established that reducing the secondary effects associated with adult businesses is a substantial government interest “that must be accorded high respect.” City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring in the judgment) (quotation marks omitted);[20] see also Pap’s A.M., 529 U.S. at 296 (plurality opinion) (“[C]ombating the harmful secondary effects associated with nude dancing [is] undeniably important.”); Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir. 2003) (“It is beyond peradventure at this point in the development of the doctrine that a state’s interest in curbing the secondary effects associated with adult entertainment establishments is substantial.”)...
Our opinion in Peek-A-Boo Lounge is consistent with Justice Kennedy’s concurrence in Alameda Books and with Renton. There, a panel of this Court held that “[t]o satisfy Renton, any evidence ‘reasonably believed to be relevant’ -- including a municipality’s own findings, evidence gathered by other localities, or evidence described in a judicial opinion -- may form an adequate predicate to the adoption of a secondary effects ordinance,” Peek-A-Boo Lounge, 337 F.3d at 1268, and we remanded that case with specific instructions to uphold the ordinance “provided that the County[’s] . . . judgment is still supported by credible evidence, upon which [it] reasonably relies,” id. at 1273 (emphasis added).
Here, Lollipop’s argument that the City’s evidence is flawed because it consists of “anecdotal” accounts rather than “empirical” studies essentially asks this Court to hold today that the City’s reliance on anything but empirical studies based on scientific methods is unreasonable. This was not the law before Alameda Books, and it is not the law now. See Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (reiterating that a city need not “conduct new studies or produce evidence independent of that already generated by other cities” (quoting Renton, 475 U.S. at 51-52)); Pap’s A.M., 529 U.S. at 300 (plurality opinion) (criticizing the dissent for “ignor[ing] Erie’s actual experience and instead requir[ing] . . . an empirical analysis”). Rather, the City of Daytona Beach could reasonably rely upon “[c]ommon sense,” see Bellanca, 452 U.S. at 718, “its own experiences,” see Pap’s A.M., 529 U.S. at 300 (plurality opinion), “the experiences of . . . other cities,” Renton, 475 U.S. at 51, or city officials’ local knowledge, see Alameda Books, 535 U.S. at 451-52 (Kennedy, J., concurring in the judgment) (“The Los Angeles City Council knows the streets of Los Angeles better than we do. It is entitled to rely on that knowledge . . . .” (citations omitted)); see also Pap’s A.M., 529 U.S. at 297-98 (plurality opinion).
To be sure, as the Alameda Books plurality admonished, the City cannot “get away with shoddy data or reasoning,” and its evidence must “fairly support” its rationale. See 535 U.S. at 438 (plurality opinion). But this is simply another way of saying that the City’s reliance on evidence supporting its rationale must be reasonable. Anecdotal evidence is not “shoddy” per se. At most, Lollipop’s experts’ studies suggest that the City could have reached a different conclusion during its legislative process about the relationship between adult theaters and negative secondary effects. But demonstrating the possibility of such an alternative does not necessarily mean that the City was barred from reaching other reasonable and different conclusions. See G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 639 (7th Cir. 2003) (“Although this evidence shows that the [town] might have reached a different and equally reasonable conclusion regarding the relationship between adverse secondary effects and sexually oriented businesses, it is not sufficient to vitiate the result reached in the [town’s] legislative process.”); see also Alameda Books, 535 U.S. at 437 (plurality opinion) (noting that a city “does not bear the burden of providing evidence that rules out every theory . . . that is inconsistent with its own”).
Our review is designed to determine whether the City’s rationale was a reasonable one, and even if Lollipop’s demonstrates that another conclusion was also reasonable, we cannot simply substitute our own judgment for the City’s. See Peek-A-Boo Lounge, 337 F.3d at 1273; see also Barnes, 501 U.S. at 583 (Souter, J., concurring in the judgment) (“At least as to the regulation of expressive conduct, ‘[w]e decline to void [a statute] essentially on the ground that it is unwise legislation . . . .’” (quoting O’Brien, 391 U.S. at 384 (alterations in original))); Renton, 475 U.S. at 52 (“It is not our function to appraise the wisdom of [the city’s] decision to [regulate] adult theaters . . . .” (second alteration added and quotation marks omitted)); cf. Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (“[C]ourts should not be in the business of second-guessing fact-bound empirical assessments of city planners.”).
The City of Daytona Beach relied on, among other things, the Supreme Court’s decisions in Bellanca, LaRue, Barnes, and Pap’s A.M.; numerous police reports of criminal activity -- including prostitution and assaults on police officers -- in and around adult theaters; undercover police investigations that revealed numerous violations of City ordinances by adult theaters; the City’s police chief’s documentation of criminal activity in and around adult theaters; CAD data showing calls-for-service to police dispatchers from areas near adult theaters; extensive testimony taken in Function Junction, 705 F. Supp. at 547-48; studies conducted by Boston and Detroit showing that adult businesses tend to increase urban blight; studies of urban blight and decay in Daytona Beach; controlled laboratory studies showing a correlation between alcohol and sexual conduct; anecdotal accounts from local business owners about increased crime in and around adult theaters; and newspaper articles describing increases in problems related to nudity and alcohol surrounding events such as Spring Break and Black College Reunion. Because Lollipop’s has failed to cast direct doubt on the aggregation of evidence that the City reasonably relied upon when enacting the challenged ordinances, we hold that the ordinances further a substantial government interest under O’Brien.
Moreover, a close examination of Lollipop’s experts’ studies calls into question their stated conclusion that they “cast grave doubt” on the City’s evidence that adult theaters increase crime, and, equally important, the studies do not even purport to address the City’s evidence that adult theaters tend more generally to perpetuate urban blight and decay. First, one underlying methodological problem with both studies suggests that they cast little or no doubt on the City’s evidence that nudity in establishments that serve alcohol encourages “prostitution, . . . undesirable behavior . . ., [and] sexual, lewd, lascivious, and salacious conduct among patrons and employees . . . in violation of law and [en]dangers . . . the health, safety and welfare of the public.” See Ordinance 81-334 § 2. The experts’ studies are based solely on CAD data, which, in lay terms, is essentially 911 emergency call data. Relying on such data to study crime rates is problematic, however, because many crimes do not result in calls to 911, and, therefore, do not have corresponding records in the City’s CAD data.[31] This is especially true for crimes, such as lewdness[32] and prostitution, that the City sought to reduce by enacting the challenged ordinances. See Ordinance 02-496 § 5 (seeking to reduce “lewd and lascivious behavior, prostitution, sexual assaults and batteries, . . . other criminal activity, [and the] degradation of women”); Ordinance 81-334 § 2 (seeking to reduce “prostitution, . . . undesirable behavior, . . . [and illegal] sexual, lewd, lascivious, and salacious conduct among patrons and employees” of adult theaters); see also Ordinance 03-375 § 4 (relying on legislative record for Ordinances 81-334 and 02-496).
Such crimes are often “victimless,” in the sense that all of those involved are willing participants, and, therefore, they rarely result in calls to 911. College students on Spring Break are unlikely to call 911 after a wild night out on the town despite having participated in exactly the sort of activity that the City’s nudity ordinances were enacted to reduce. Likewise, an encounter between a prostitute and a “john” rarely leads to a 911 call. By contrast, the City’s “anecdotal” evidence may be a more accurate assessment of such crimes because it is not based on a data set that undercounts the incidents of such “victimless” crimes. Cf. World Wide Video of Wash., Inc. v. City of Spokane, 368 F.3d 1186, 1195-96 (9th Cir. 2004) (“Anecdotal evidence and reported experience can be as telling as statistical data and can serve as a legitimate basis for finding negative secondary effects.” (citation and alteration omitted)).[33]
A second problem with Lollipop’s experts’ studies is that, even if the underlying CAD data fully reflected all of the conduct that Daytona Beach sought to reduce, the experts appear to draw conclusions that overstate the underlying data. For example, the study that focuses on Ordinance 81-334 concludes that “crimes against persons, crimes against property, and sex crimes, including both rape and prostitution[,] are not more common in areas with adult businesses than they are in similar control areas.” (Experts’ Report 2.) But the experts’ own underlying data suggests otherwise -- for three of the six pairs of study and control areas that the experts examined, “the study areas [i.e., areas with adult theaters,] do show significantly higher rates of crime than the control areas.” (Id. at 29-30 (emphasis added).)
The experts attempt to explain away this result by pointing to the other three pairs -- two show no “significant” difference between study and control areas, and one shows a significantly higher crime rate in the control area than the study area. The experts assert, without much discussion, that “[t]his mixed pattern” shows that “factors other than the presence of a nude cabaret are affecting rates of crime.” (Id. at 30.) The experts are no doubt correct that factors other than the presence of adult theaters affect crime rates in Daytona Beach; crime is plainly caused by many factors. But that does little to undermine the City’s conclusion that adult theaters also affect crime rates, especially when the experts’ own analysis shows a statistically significant correlation between adult theaters and increased crime in half of the areas in the study.[34]
Finally, both studies focus only on criminal activity and do not even purport to address the connection between adult theaters and urban blight. Ordinance 03-375, which amended Ordinance 02-496, was supported by testimony from Function Junction that adult theaters promote and perpetuate urban blight, which in Daytona Beach was characterized by “a significant percentage of deteriorating structures; a large number of small . . . lots, which did not allow cars; a notable parking problem; a high incidence of crime, particularly, on the beachside; and a large percentage of antiquated, underground utility systems, such as drainage, water and sewer systems.” 705 F. Supp. at 547. Lollipop’s experts’ studies examine only one of these conditions -- high crime rates -- and, notably, do not address at all the City’s evidence that adult theaters tend to perpetuate these other features of urban blight. Although Lollipop’s experts argue that the testimony provided in Function Junction was based on unreliable data and methodologically unsound analysis, we repeat that the City’s reliance on such evidence need only have been reasonable, and it was.
In short, the CAD data relied on by both studies may substantially undercount incidents of many of the types of crime that the City sought to reduce; the data that the studies did analyze show some statistically significant correlations between adult theaters and increased criminal activity; and the studies completely fail to address evidence of increased urban blight and decay that the City reasonably relied on when enacting Ordinance 03-375. Thus, Lollipop’s has failed to cast direct doubt on all of the evidence that the City reasonably relied on when enacting the challenged ordinances. See Peek-A-Boo Lounge, 337 F.3d at 1268 (noting that “the government must rely on at least some pre-enactment evidence” (emphasis in original)); Wise Enters., Inc. v. Unified Gov’t of Athens-Clarke County, 217 F.3d 1360, 1364 (11th Cir. 2000) (noting that a municipality “must have some factual basis” for its rationale (emphasis in original) (quotation marks omitted)); see also World Wide Video, 368 F.3d at 1195 (explaining that a city needs only “some” evidence to support its ordinances); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 481 (5th Cir. 2002) (“Renton teaches us that the government must produce some evidence of adverse secondary effects . . . .” (emphasis in original) (citation omitted)). Accordingly, we hold that Ordinances 81-334, 02-496, and 03-375 further a substantial government interest under O’Brien.[35]
See also:
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