Agenda - Planning Commission - 08/04/1998

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Page 2 July 25, 1998 Z.B. First Amendment -- City bans nude dancing in places that sell alcohol Citation: Samrny's ofMobile Ltd. v. City of Mobile, Il_th U.S. Circuit Court of Appeals, No. 96-7073 (1998) The llth U.S. Circuit Court of Appeals has jurisdiction over Alabama, Florida, and Georgia. Sammy's of Mobile Ltd. and The Candy Store were licensed to sell alcohol for on-premises consumption in Mobile, Ala. Both featured topless female dancing. In 1996, the city passed an ordinance prohibiting any business licensed to sell alcohol from having performances depicting nudity or "sexual conducts." Violators faced fines of up to $500 and six months in jail. The ordinance re- flected the city's conclusion that the combination of nudity and alcohol in pub- lic places led to undesira~.:ie behavior and wasn't in the interest of the public health, safety, and welfare. Sammy's surrendered its liquor license and continued to offer topless and nude dancing. The Candy Store refused to surrender its license but continued to provide topless dancing. The city didn't enforce the ordinance against The Candy Store, but said it would. Sammy's sued the city in state court. It claimed the ordinance was unenforceable and violated the First Amendment's Free Speech Clause because it regulated the freedom of expression through nude dancing. The Candy Store brought the same claim against the city in federal court; the federal court combined the cases. Under the U.S. Supreme Court's test for ordinances that regulated "expres- sive'' conduct, an ordinance would be constitutional if the regulation furthered an interest that was within the government's power, the interest was unre- lated to free expression, and the government had no less restrictive alterna- tive. The court awarded the city judgment without a trial on ail claims, conclud- ing the ordinance didn't violate the Free Speech Clause. The court found the regulation of the public health, safety, and morals was a valid and substantial state interest; the city's findings on the problems created by the combination of alcohol and nude entertainment showed the regulation furthered this interest; and the ordinance was narrowly tailored to the perceived problem. The businesses appealed. DECISION: Affirmed. The ordinance was valid. The city sought to regulate only the sale of alcohol in inappropriate places. The ordinance was designed to regulate the secondary effects of the combination of alcohol and nude dancing without prohibiting either. Everyone could still buy a drink and watch nude dancing in Mobile; they just couldn't do both in the same place. I I I I I I I I I I I I I I