Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin DECISION: Affirmed. February 25, 2011 I Volume 5 I No. 4 T 1 The Background/Facts: Manatee County (the "County") enacted Or- / dinance 05 -21 (the "Ordinance "), which regulated the manner in which sexually oriented businesses operated in the County. The Ordinance con- tained both zoning and public nudity provisions. The zoning provisions included: physical requirements for the premises of sexually oriented businesses; restrictions on the hours of operations of such businesses; and a prohibition on serving of alcoholic beverages at such businesses. In September 2005, three adult dancing establishments, which op- erated in the County, including Peek -a -Boo Lounge of Bradenton, Inc. ( "Peek -a- Boo "), filed a lawsuit challenging the Ordinance. They main- tained that the Ordinance was unconstitutional on its face as applied to them. More specifically, they argued that the Ordinance violated the First Amendment because it restricted their freedom of expression and was not designed to serve a substantial government interest. The County defended the Ordinance. It said it had a "substantial in- terest in preventing and abating [negative] secondary effects [associated with sexually oriented 'businesses]." It rationalized adoption of the Or- dinance as necessary to prevent those negative secondary effects and "to promote the health, safety, and general welfare of the citizens of the County ...." The County supported the adoption of the Ordinance with a "voluminous record that included judicial opinions; multiple secondary- effects reports, including land use studies and crime reports; ( ! affidavits from [local law enforcement]; newspaper articles; and other materials." Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court issued final summary judg- ment in favor of the County. The district court held that the County's Ordinance "was reasonably designed to serve a substantial government interest— reducing the negative secondary effects associated with sexu- ally oriented businesses." Peek -a -Boo appealed. On appeal, Peek -a -Book argued that the Ordi- nance was not "designed to serve a substantial government interest." The United States Court of Appeals, Eleventh Circuit, agreed with the County and the district court. It concluded that the County's Ordinance was reasonably designed to serve a substantial government interest. The court found the County's rationale for adopting the Ordinance (i.e., to prevent and abate negative secondary effects associated with sexually oriented businesses) was supported by a substantial body of evidence. The court explained that "[z]oning ordinances that regulate the condi- tions under which sexually oriented businesses may operate are evalu- ated as time, place, and manner regulations, following a three -part test set forth by the Supreme Court." Under that test, a court must: (1) first determine whether the ordinance amounts to a total ban (which is © 2011 Thomson Reuters 3