Agenda - Planning Commission - 08/08/2005

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July 25, 2005 -- Page 7 Adult Entertainment -- Business owner claims ordinance enacted for ulterior motive Argues ordinance cannot be upheM Citation: Zibtluda LLC v. Gwinnet County, 1Jth U.S. Circuit Court of Appeals, No. 03-15685 (2005) The llth Circuit has jurisdiction over Alabama, Florida, and Georgia. GEORGIA (06/09/05) -- Zibtluda LLC operated an adult bookstore. In 2001, Zibtluda applied to develop two more adult bookstore locations in Gwinnet County. Later that day, the countY adopted a new ordinance. The new ordinance placed different restrictions on adult businesses, and stated its purpose was to curb the negative secondary effects of those businesses. Under the new ordi- nance, Zibtluda was denied the necessary licenses. Zibtluda sued, and the court ruled in favor of the county. Zibtluda ap- pealed, arguing the ordinance was illegal, because it was enacted for ulterior motives, namely not granting Zibtluda more licenses to open additional adult bookstores. DECISION: Affirmed. Whatever the county's motive, Z}btluda failed to' prove the ordinance was not legal and content-neutral. The first section of the 2001 ordinance clearly stated its purpose was to combat the well-documented secondary effects of adult entertainment businesses, and it relied upon the findings of other cities as to the ~avity of those effects. Zibtluda did not attempt to establish that any regulations contained'in the 2001 ordinance suppressed or limited speech. Zibtluda did not endeavor to prove, for example, that any adult businesses were forced to close or to scale back their operations as a result of the ordinance. Zibtluda did not clarify why it was denied two of the four additional licenses for which it applied, and did not establish that the reason for denial Was based on a speech-suppressing ele- ment in the new ordinance. The record did not show the county attempted to regulate the secondary effects of speech by suppressing the speech itself. Ag~m'ieved parties could challenge the secondary-effects rationale either by demonstrating the municipality's evidence did not support its motive, or by furnishing evidence disputing the-municipality's factual findings. Zibtluda did not establish improper motive through this kind of circumstantial evidence. While there could have been an ulterior motive, this was not enough to strike down an otherwise constitUtional statute. see also: City of Littleton v. Z.J. Gifts D-4 LLC, 541 U.S. 774, J24 S. Ct. 22J9, 159 L. Ed. 2d 84 (2004). see also: Dream Palace v. County of Maricopa, 384 E3d 990 (2004). © 2005 Ouinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 225