455 F. App'x 541
6th Cir.2011Background
- Ohio SB 16 enacted § 2907.40 regulating sexually oriented businesses with a no-open-hours rule and a no-touching provision targeting secondary effects.
- § 2907.40(B) prohibits operation between midnight and 6:00 a.m. unless liquor-permitted and nude-entertainment rules allow exceptions.
- § 2907.40(C) prohibits patrons and employees from touching each other or clothing while nude/semi-nude; penalties are misdemeanor levels.
- Definitions: § 2907.40(A)(15) broadly defines “sexually oriented business,” while (A)(1) defines “adult bookstore/video store” by substantial focus on sexually oriented materials.
- Plaintiffs—adult bookstores, cabarets, and BACE—challenged the law as overbroad and sought TRO, injunction, and declaratory relief; district court granted summary judgment for Defendants.
- This Sixth Circuit review applied O’Brien and Alameda Books proportionality framework to assess the regulation’s constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2907.40 survives intermediate scrutiny | Linz evidence undermines secondary-effects basis. | Legislature reasonably relied on diverse evidence; burden light. | Survives under O’Brien/Alameda Books framework |
| Whether Linz's testimony creates a genuine issue of material fact | Linz undermines legislature's findings; remand required. | McCleary corroborates secondary-effects; record supports law. | No genuine issue; record supports § 2907.40 |
| Whether § 2907.40(B) hours restriction is supported by evidence | Late-night effects not shown; restriction too speech-diminishing. | Evidence and prior decisions support targeted late-night regulation. | Hours restriction upheld under proportionality analysis |
| Whether the definitions of ‘adult bookstore/video store’ and ‘adult cabaret’ are overbroad | Broad categories sweep in ordinary retailers without secondary effects. | Significant/substantial focus limits reach; other venues fall outside. | Not facially overbroad; narrowing construction valid |
| Whether no-touch provisions are overbroad | Covers expressive touch; restricts protected speech. | No-touch rules regulate conduct, not expression; upheld in similar cases. | Overbreadth challenge fails; provision sustained |
Key Cases Cited
- United States v. O'Brien, 391 U.S. 367 (1968) (establishes intermediate scrutiny for content-neutral regulations balancing government interests)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (secondary effects framework for regulating sexually oriented speech)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality on silencing effects; promotes Alameda Books approach in secondary effects cases)
- Richland Bookmart II, 555 F.3d 512 (6th Cir. 2009) (upholds regulations addressing secondary effects; discusses evidentiary standards)
- 729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485 (6th Cir. 2008) (confirms Kennedy proportionality in secondary effects cases)
- Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008) (upholds hours-of-operation restrictions; discusses proportionality)
- Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777 (6th Cir. 2005) (upholds hours restriction; supports late-night regulation)
- Entertainment Productions, Inc. v. Shelby County, 588 F.3d 372 (6th Cir. 2009) (upholds no-touch/space restrictions; overbreadth analysis)
- Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003) (addresses evidentiary basis for secondary-effects regulation)
- DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997) (upholds buffer/contact restrictions; relevance to no-touch provisions)