Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County
2011 U.S. App. LEXIS 1191
| 11th Cir. | 2011Background
- Manatee County enacted Ordinance 05-21 to regulate Sexually Oriented Businesses (SOBs) in the County.
- Peek-a-Boo challenged the ordinance as unconstitutional under the First Amendment.
- The prior ordinances (98-46 and 99-18) were unsettled; Peek-a-Boo I held the zoning ordinance unconstitutional and mooted issues surrounding the nudity ordinance.
- The County adopted a revised SOB code with zoning and nudity provisions, supported by a voluminous evidentiary record and public testimony.
- District court granted summary judgment for the County; on appeal, the Eleventh Circuit affirmed, finding the record reasonably supported the County’s rationale and Peek-a-Boo failed to cast direct doubt.
- The court applied Renton/Alameda Books framework (time/place/m manner) and treated zoning and nudity provisions under the same standard of “substantial government interest.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SOB ordinance is reasonably designed to serve a substantial government interest. | Peek-a-Boo argues the record doesn’t show narrow tailoring. | County shows a thorough record supporting the secondary effects rationale. | Yes; ordinance reasonably designed to serve a substantial government interest. |
| Whether Peek-a-Boo cast direct doubt on the County’s rationale. | Peek-a-Boo contends the evidence undermines the County’s rationale. | Peek-a-Boo failed to undermine the totality of the evidence. | Peek-a-Boo failed to cast direct doubt on the County’s rationale. |
| Whether reliance on non-empirical studies and judicial opinions is permissible. | Peek-a-Boo argues the County relied on questionable sources. | County may rely on judicial opinions and non-empirical studies if reasonable. | Permissible; the record supports reliance and credibility of the evidence. |
Key Cases Cited
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (time/place/manner test for zoning ordinances; substantial government interest)
- Alameda Books, Inc. v. City of Los Angeles, 535 U.S. 425 (2002) (content-neutral nudity/city regulation; evidence of secondary effects must be credible)
- Pap's A.M. v. City of Pottsville, 529 U.S. 277 (2000) (nudity/ordinance standards for sexual conduct)
- Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (public nudity regulation and First Amendment balance)
- Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985) (unconstitutional topless dancing ban where no evidence of crime context)
- Flanigan's Enterprises, Inc. of Georgia v. Fulton County, 242 F.3d 976 (11th Cir. 2001) (empirical record vs. foreign studies; evidentiary sufficiency)
- Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007) (strong evidentiary record supporting ordinance)
- Peek-a-Boo I v. Manatee County, 337 F.3d 1251 (11th Cir. 2003) (scope of evidence and standard for secondary effects ordinances)