Cricket Store 17, L.L.C. v. City of Columbia

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-03557-TLW. Copies to all parties and the district court. [1000009872]. [16-1065]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1065

CRICKET STORE 17, L.L.C., d/b/a Taboo,
Plaintiff - Appellant,
v.
CITY OF COLUMBIA,
Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:13-cv-03557-TLW)

Argued:

December 6, 2016

Decided:

January 25, 2017

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas R. Goldstein, BELK, COBB, INFINGER & GOLDSTEIN, P.A.,
Charleston,
South
Carolina,
for
Appellant.
Scott
Dean
Bergthold,
LAW
OFFICE
OF
SCOTT
D.
BERGTHOLD,
P.L.L.C.,
Chattanooga, Tennessee, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This

case

presents

a

First

adult

Amendment

businesses

challenge

in

to

Columbia,

an

ordinance

regulating

South

Carolina.

Appellant Cricket Store 17, LLC, conducts business as

Taboo, a retail shop selling sexually oriented merchandise in
the city of Columbia (“City”).
City

enacted

an

ordinance

Shortly after Taboo opened, the
comprehensively

operations and locations of adult businesses.
longer

would

location,

be

able

filed

to

suit,

conduct

business

challenging

the

regulating

the

Taboo, which no
at

its

ordinance

present
as

an

impermissible restriction on free speech.
The district court granted summary judgment to the City,
relying on City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425 (2002) and City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986), two cases in which the Supreme Court upheld
similar ordinances.

Under Alameda Books and City of Renton, the

district court concluded, the ordinance is consistent with the
First

Amendment,

designed

to

ameliorating

because

serve
the

a

it

is

a

substantial

secondary

effects

content-neutral
government
of

adult

regulation

interest

in

businesses

and

because it leaves adult businesses with a reasonable opportunity
to operate in alternative locations.
court and affirm its decision.

2

We agree with the district

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Taboo opened for business on December 5, 2011, and thanks
in part to an amortization period for existing businesses in the
City’s ordinance, has been operating continuously since then.
The store sells various products including clothing, novelties,
DVDs, and magazines, all of which are geared toward an adult
audience.

As a retail-only establishment, Taboo provides take-

home merchandise but offers no on-site entertainment, such as
live performances or movies.

Located on a major highway, Taboo

is the City’s only sexually oriented business.
Less than a month after Taboo opened, the City, for the
first

time

regulation

in
of

over
adult

a

decade,

undertook

businesses.

On

a

review

December

its

2011,

22,

of

the

Columbia City Council held a public meeting, at which a City
consultant

made

a

presentation

effects of adult businesses.
Council

learned,

increased

negative

criminal

about

the

harmful

secondary

Those effects included, the City

impacts

behavior;

lewd

on

surrounding

conduct

and

properties;

illicit

sexual

activity; drug use and trafficking; and litter, noise and other
forms of urban blight.
negative

secondary

The presentation emphasized that these

effects

are

associated

with

all

types

of

adult businesses, including retail-only stores like Taboo.
The

presentation

also

included

information

about

how

to

address these secondary effects – and, importantly, how to do so
consistent

with

the

First

Amendment.
3

The

City

Council

was

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provided

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with

land

studies,

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crime

impact

reports,

journal

articles and judicial decisions detailing constitutional means
of

regulating

adult

businesses

in

order

documented harmful secondary effects.
record

spanned

judicial

almost

decisions,

sexually-oriented

2,200

businesses

in

prevent

their

In total, the legislative

pages

twenty-seven

to

and

included

studies
various

on

forty-six

the

cities,

impact

and

of

nineteen

summaries of reports concerning negative secondary effects.
A

week

later,

on

December

29,

2011,

the

Ordinance Number 2011-105 (the “Ordinance”).

City

enacted

According to the

Ordinance, its purpose is to “prevent the deleterious secondary
effects of sexually oriented businesses within the City.”
25.

J.A.

The Ordinance includes extensive findings, based on the

legislative
secondary

record,
effects”

identifying
of

a

sexually

“wide

variety

oriented

of

adverse

businesses

“as

a

category,” including but not limited to “personal and property
crimes,

prostitution,

public

indecency,

potential

obscenity,

spread
illicit

of

disease,

drug

use

lewdness,
and

drug

trafficking, negative impacts on surrounding properties, urban
blight, litter, and sexual assault and exploitation.”

J.A. 26.

Those effects, the Ordinance goes on to find, are minimized if
sexually oriented businesses are separated from sensitive land
uses and also from each other, so as to avoid a concentration of
adult businesses.
4

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Accordingly,

among

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the

restrictions

placed

on

adult

businesses by the 2011 Ordinance are the locational constraints
directly at issue here:
sexually

oriented

Under § 11-620 of the Ordinance, no

business

may

operate

within

700

feet

of

a

sensitive use – a religious institution, educational facility,
outdoor recreational space, or residential property – nor within
1000

feet

of

conforming

another

adult

sexually

business

was

oriented
given

a

business.
two-year

Any

non-

amortization

period within which to recoup its initial investment and then
relocate to a new site. 1
Taboo

took

advantage

of

this

amortization

period

and

continued operating for two years, despite the fact that its
location

did

not

meet

§

11-620’s

requirements.

Instead

of

relocating at the end of the two-year period, Taboo filed suit
in district court to set aside the Ordinance on First Amendment
free speech grounds.
In

a

thorough

Both parties moved for summary judgment.
and

careful

opinion,

granted summary judgment to the City.

the

district

See Cricket Store 17, LLC

v. City of Columbia, 97 F. Supp. 3d 737, 742 (D.S.C. 2015).
1

court

The

A second ordinance, adopted by the City in 2012, updated
zoning requirements for sexually oriented businesses to reflect
the locational restrictions of the 2011 Ordinance, and made
minor changes to those locational restrictions not relevant
here. Because the two ordinances set out substantially the same
purpose and findings, relying on substantially the same evidence
of negative secondary effects, we need not differentiate between
them for purposes of our analysis.
5

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court began by laying out the three-step standard under which
the Supreme Court upheld adult-business ordinances in City of
Renton and Alameda Books:

A regulation of sexually oriented

businesses is consistent with the First Amendment if it (a) is a
time, place and manner restriction rather than an outright ban;
(b) is treated as content-neutral because it is aimed at the
secondary effects of adult businesses rather than their message;
and (c) is designed to serve the substantial government interest
in

ameliorating

secondary

limit

alternative

Supp.

3d

at

effects

avenues

745.

The

of

and

does

not

communication.

court

then

Cricket,

meticulously

framework to uphold the City’s Ordinance.

unreasonably
97

applied

F.

that

See id. at 745–64.

We summarize the district corut’s lengthy and detailed opinion
only briefly here.
The first step of the analysis was straightforward.

The

City’s Ordinance does not ban adult businesses outright, the
court reasoned, but instead primarily restricts when and where
they

may

Supreme

operate,
Court

concluded,

the

in

much

like

City

of

Ordinance

is

the

ordinance

Renton.
“properly

approved

Accordingly,
analyzed

as

by

the

the

court

[a]

time,

place and manner regulation[],” id. at 745, – a determination
that Taboo does not appear to contest.
Second,
explicitly

the

court

targets

the

concluded
secondary
6

that

because

effects

of

the

adult

Ordinance
businesses

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rather

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than

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their

speech

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itself,

it

is

properly

treated

“content-neutral” under City of Renton and Alameda Books.
at

746;

see

City

of

Renton,

475

U.S.

at

929-30

as
Id.

(“[Z]oning

ordinances designed to combat the undesirable secondary effects
of [adult] businesses are to be reviewed under the standards
applicable

to

‘content-neutral’

regulations.”);
opinion)

Alameda

(same);

id.

Books,
at

time,

535

448-50

place

U.S.

at

(Kennedy,

and

434
J.,

manner

(plurality
concurring)

(discussing treatment as content-neutral of regulations aimed at
secondary effects).
Taboo

argued

content-based,

that

and

thus

the

Ordinance

should

presumptively

be

invalid,

treated
because

as
its

timing – coming immediately after Taboo opened for business –
and certain statements by City Council members showed that it
was aimed at Taboo.

The district court rejected that argument,

reasoning that even if Taboo’s opening “spurred the City into
action,” that would not demonstrate that the City’s action was
directed at Taboo’s message rather than the secondary effects of
its operations.

Cricket, 97 F. Supp. 3d at 746-47.

As the

district court noted, id., that conclusion is compelled by our
decision in D.G. Restaurant Corp. v. City of Myrtle Beach, 953
F.2d 140 (4th Cir. 1991), in which we upheld a restriction on
adult businesses despite the fact that it was enacted in direct
response

to

the

planned

opening
7

of

a

topless

dancing

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establishment.
prompted

a

regulation

The

mere

regulation,
is

we

targeted

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fact

that

explained,

at

the

message” the business may convey.

an

adult

does

not

“eradication

business
mean

of

that

any

has
the

erotic

Id. at 146.

Next, the district court considered whether the Ordinance
is “designed to serve a substantial governmental interest” as
required by City of Renton, 475 U.S. at 50, and Alameda Books,
535 U.S. at 434 (plurality opinion).

As the court recognized,

Cricket, 97 F. Supp. 3d at 751, it is well established that a
municipality

has

a

substantial

interest

in

preventing

negative secondary effects of adult businesses.
that

an

ordinance

district

court

is

“designed

explained,

“arduous” standard.

a

to

serve”

that

municipality

need

Id. at 745, 746.

the

And in showing
interest,
not

meet

the
an

Instead, it may rely on

“whatever evidence” it “reasonably believe[s] to be relevant to
the problem” before it.

Id. at 746 (quoting City of Renton, 475

U.S. at 51–52).
As both we and the Supreme Court have emphasized – and as
the district court recognized, Cricket, 97 F. Supp. 3d at 746 –
that generous standard, which reflects the significant deference
owed

to

a

locality’s

policy
may

be

expertise

and

satisfied

with

democratically

accountable

judgments,

“very

little

evidence.”

See Alameda Books, 535 U.S. at 451 (Kennedy, J.,

concurring); Imaginary Images, Inc. v. Evans, 612 F.3d 736, 742,
8

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749 (4th Cir. 2010) (upholding municipal regulation of sexually
oriented entertainment).
its

own

studies,

nor

generated

already

by

In particular, a city need not conduct

regulations.

produce
other

evidence

localities

independent
defending

City of Renton, 475 U.S. at 51.

of

that

their

own

We have allowed

cities to rely on the experience of other localities, findings
expressed in other court cases, and simple appeals to common
sense.

Id.; Imaginary Images, 612 F.3d at 742.

After carefully analyzing the extensive record before it,
the district court concluded that the Ordinance was based on
evidence “reasonably believed to be relevant” to the problem of
secondary effects.

Cricket, 97 F. Supp. 3d at 746–51.

Under

the precedent discussed above, the court determined, the City
was not required to conduct its own research, but could rely on
the record provided to the City Council, including “dozens of
court opinions and orders, reports from various cities around
the country, and several journal articles.”

Id. at 748.

And

while it was not necessary that the City’s evidence be specific
to retail-only businesses such as Cricket, the district court
reasoned, the City in fact had relied on evidence about the
secondary

effects

Ordinance.

Id.

of
at

retail-only

748–49.

stores

Finally,

in

while

enacting
Taboo’s

the

expert

questioned the validity of the City’s studies and fact-finding,
his

report

established,

“at

most,
9

that

the

City

could

have

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reached a different conclusion about the link between sexually
oriented

businesses

and

negative

secondary

effects,”

and

not

that the conclusion the City did reach was without evidentiary
support sufficient to meet the standard laid out in City of
Renton and

Alameda

Books.

Id.

at

749.

“The

Court

is

not

required to re-weigh the evidence considered by the City, and
the

Court

Columbia

will
City

not

substitute

Council.”

Id.

its

judgment

(citing,

for

inter

that

alia,

of

the

Imaginary

Images, 612 F.3d at 747).
Finally, the district court turned to the last step of the
analysis:

whether

the

City’s

Ordinance

left

available

alternative avenues of communication for adult businesses and,
more specifically, alternative sites on which an adult business
could operate.

As the district court recognized, City of Renton

defines an “available” alternative site broadly, to include land
that

already

is

occupied

and

regardless

of

the

economic

feasibility of relocating or the commercial desirability of a
particular site.

Cricket, 97 F. Supp. 3d at 753 (citing City of

Renton, 475 U.S. at 53-54).
painstakingly

analyzed

the

identified

the

and

Against that standard, the court

by

objections to each.

City

forty-six
individually

Id. at 755-63.

alternative
addressed

sites
Taboo’s

The court ultimately found

that all forty-six sites were available for use by an adult
business – and that “even if the Court’s conclusion that exactly
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forty-six sites are available is incorrect, there is no question
that numerous sites are available.”

Id. at 764.

Accordingly,

the court determined that the Ordinance does not unreasonably
limit alternative avenues of communication by adult businesses.
Id.

And

because

the

City

had

satisfied

the

last

of

the

conditions of constitutionality established by City of Renton
and Alameda Books, the court held that the Ordinance does not
violate the First Amendment.
Taboo

timely

appealed,

Id. 2
raising

substantially

arguments it advanced in the district court.

the

same

Having carefully

considered the controlling law and the parties’ briefs and oral
arguments, we affirm on the reasoning of the opinion of the
district court.
AFFIRMED

2

The district court also held that the Ordinance does not
constitute an unconstitutional prior restraint on speech.
Cricket, 97 F. Supp. 3d at 764-65.
In addition, it denied
various discovery motions filed by Taboo.
Id. at 766–67.
Lastly, the court at other points of the proceedings denied
Taboo leave to amend its complaint, and denied a motion by Taboo
to vacate its judgment based on a subsequent amendment to the
City’s Ordinance.
We find no error in the district court’s
rulings on these points.

11