BZAPS, INC., Doing Business as Buster‘s Bar v. CITY OF MANKATO
No. 00-3214
United States Court of Appeals, Eighth Circuit
October 12, 2001
Rehearing and Rehearing En Banc Denied: Dec. 5, 2001
268 F.3d 603
Submitted: May 17, 2001.
A trial court has broad discretion in deciding a motion to dismiss based on forum non conveniens and that decision will be overturned only for abuse of discretion. Reid-Walen v. Hansen, 933 F.2d 1390, 1394 (8th Cir.1991). Abuse of discretion occurs when the district court does not hold the defendants to their burden of persuasion on all the elements of the forum non conveniens analysis, fails to consider the relevant public and private interest factors established in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), or clearly errs in weighing the Piper Aircraft factors. Reid-Walen, 933 F.2d at 1394.
We affirm on the basis of the district court‘s published opinion, EFCO Corp. v. Aluma Systems USA, Inc., 145 F.Supp.2d 1040 (S.D.Iowa 2000), with these comments.
In its briefs and at oral argument, Aluma emphasized that on October 20, 2000, EFCO formally substituted EFCO Canada Company, a Nova Scotia corporation, as one of the two plaintiffs. Judge Pratt‘s opinion does not reflect this change in the identity of the plaintiffs. This change in plaintiffs does not affect Judge Pratt‘s ruling.
We note Judge Pratt‘s discussion that a court can discount the deference owed to plaintiff‘s choice of forum when the plaintiff does extensive business abroad. See EFCO Corp., 145 F.Supp.2d at 1045-47. Whether or not an American corporation which chooses an American forum for its lawsuit will have its choice of forum preference discounted because it does extensive business abroad, will often depend on the particular facts and circumstances of the case.
Finally, we highlight a number of factors significant in our decision to affirm the district court. EFCO initially filed this case in Canada. As Judge Pratt observed, “[B]y suing Aluma in Canada first EFCO indicates that Canada would not be completely inconvenient for it.” EFCO Corp., 145 F.Supp.2d at 1047. Furthermore, Aluma has agreed to accept service of process in Canada; the discovery conducted in the United States can be fully utilized in the Canadian litigation; and the Canadian action can be refiled without prejudice to EFCO.
For the foregoing reasons, we affirm the district court‘s dismissal on the grounds of forum non conveniens.
Randall D.B. Tigue, argued, Minneapolis, MN, for appellant.
James J. Thomson, argued, Minneapolis, MN, for appellee.
Before MORRIS SHEPPARD ARNOLD and BYE, Circuit Judges, and GAITAN,1 District Judge.
BZAPS, Inc., contracted with a group known as “Fatal Attraction,” a male dance revue that performs in various states of nudity, to perform for one night at Buster‘s Bar, owned by BZAPS in Mankato, Minnesota. When a BZAPS representative contacted the city planning director regarding the permissibility of this performance, the planning director stated that such a performance would violate
I.
Under
The ordinance, see
The Supreme Court has frequently recognized that nude dancing is protected by the first amendment, see, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion), see also id. at 581, 111 S.Ct. 2456 (opinion of Souter, J.) and id. at 593, 111 S.Ct. 2456 (opinion of White, J.), but the Court has nevertheless allowed local governments to use their zoning powers to limit the location of adult establishments. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54-55, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and Young v. American Mini Theatres, Inc., 427 U.S. 50, 63, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). In upholding the zoning ordinance in Renton, the Court concluded that an ordinance limiting the location of adult establishments is proper so long as it is constructed without reference to content, see Renton, 475 U.S. at 48, 106 S.Ct. 925, and is designed to promote a substantial governmental interest and allows reasonable alternative avenues for communication, see id. at 50, 106 S.Ct. 925. See also ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994), cert. denied, 513 U.S. 1017, 115 S.Ct. 578, 130 L.Ed.2d 493 (1994).
On its face,
BZAPS contends, however, that the city has failed to show that
It is now beyond question that a city may regulate the location of adult entertainment when motivated by the secondary effects of that entertainment. See Renton, 475 U.S. at 50-51, 106 S.Ct. 925. A city need not conduct its own study regarding these effects, moreover, but may rely on evidence “already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses,” id. at 51-52, 106 S.Ct. 925; see also ILQ, 25 F.3d at 1417-18. The city‘s reliance on the studies of other cities was a sufficient basis to enact
II.
BZAPS maintains that even if the evidence relied upon by the city is sufficient to justify
Once a city has decided to regulate adult entertainment to prevent its secondary effects, however, the city is not required to prove that a particular adult use creates secondary effects before regulating that use, so long as the city reasonably believes that the use is related to other uses that have been shown to cause secondary effects. See Holmberg v. City of Ramsey, 12 F.3d 140, 143 (8th Cir.1993), cert. denied, 513 U.S. 810, 115 S.Ct. 59, 130 L.Ed.2d 17 (1994). BZAPS‘s proposed use differs little from many other adult performances. The fact that this performance is to last for only one night as opposed to what occurs in a so-called “strip club” that features an identical performance on a nightly basis does not preclude the city
We believe that Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir.2000), cert. granted, 532 U.S. 902, 121 S.Ct. 1223, 149 L.Ed.2d 134 (2001), and Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir.1987), cases on which BZAPS relies heavily, are not helpful to it. In Alameda Books, 222 F.3d at 721, the city of Los Angeles attempted to regulate a combination adult bookstore/arcade under an ordinance that would permit either an adult bookstore or an adult arcade, but not both, at one location. The Ninth Circuit invalidated the ordinance, finding that the city had no evidence from which it could reasonably conclude that a combination bookstore/arcade would precipitate greater secondary effects than an individual bookstore or arcade would. See id. at 728. In the present case, however, the city relied upon evidence directly relating to the adverse effects of nude dancing, and could thus reasonably conclude that a one-night performance of nude dancing might have some similar effects.
In Tollis, 827 F.2d at 1333, the Ninth Circuit invalidated a zoning ordinance defining an adult theater as any theater showing a single adult film. The court determined, see id., that the county had no evidence to indicate that a single showing of an adult film would have any secondary effects. The court opined further, id., that it did not “see how the County could make such a showing, since it is difficult to imagine that only a single showing ever, or only one in a year, would have any meaningful secondary effects.” The court therefore held, see id., that the ordinance failed to meet the requirement of Renton, 475 U.S. at 52, 106 S.Ct. 925, that such an ordinance must be ” ‘narrowly tailored’ to affect only that category of theaters shown to produce the unwanted secondary effects.”
We think that the Ninth Circuit has overstated the requirements of Renton. We believe, instead, that once a city has validly forbidden adult uses within a particular area, it may enforce that ordinance against all adult uses in that area without showing that a particular use will produce secondary effects. Renton, 475 U.S. at 52-53, 106 S.Ct. 925, does not require cities to discriminate among adult uses; it merely requires that laws of this type not sweep so broadly as to regulate establishments that never present adult entertainment, such as the ordinance banning all live entertainment struck down in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). The Mankato ordinance is narrowly tailored to apply solely to a “category of [establishments] shown to produce the unwanted secondary effects,” Renton, 475 U.S. at 52, 106 S.Ct. 925, namely, establishments that present adult entertainment. If we were to accept BZAPS‘s argument, a city would have the burden of showing precisely how many adult performances were capable of producing an unacceptable level of antisocial activity before the city could regulate those performances. We are satisfied that neither the first amendment nor Supreme Court precedent requires a city to do the impossible.
III.
BZAPS also challenges the constitutionality of
BZAPS contends, however, that 44 Liquormart undoes the precedential effect of LaRue. We disagree. While the Court in 44 Liquormart rejected LaRue‘s reliance on the twenty-first amendment as a basis for its decision, see 44 Liquormart, 517 U.S. at 516, 116 S.Ct. 1495, it specifically declined to disturb LaRue‘s holding. See id. The Court declared that the outcome in LaRue would have been the same without reliance on the twenty-first amendment, and that “[e]ntirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations,” id. at 515, 116 S.Ct. 1495.
Because the Supreme Court has refused to reject the holding of LaRue, the case remains precedent that we are obliged to apply to similar cases. See Groninger v. Davison, 364 F.2d 638, 642 (8th Cir.1966). As noted earlier, LaRue and the present case are virtually indistinguishable. The city‘s concern about the combination of alcohol and adult entertainment is not irrational, and the city is thus entitled under its police power to prohibit the sale of alcohol in a location that features adult entertainment. We therefore hold that
IV.
For the foregoing reasons, we affirm the judgment of the district court.
BYE, Circuit Judge, concurring in part and dissenting in part.
I agree with the majority‘s conclusion about the constitutionality of
Unlike
Mankato contends, however, that its ordinance applies on a per-day basis. By applying the ordinance in that manner, Mankato targets the content of a single
In Tollis Inc. v. San Bernardino County, the Ninth Circuit struck down an ordinance that San Bernardino County construed in such a way that a single showing of adult entertainment rendered a business “adult oriented” as defined by the ordinance. 827 F.2d 1329, 1333 (9th Cir.1987). The court held that the County failed to show the ordinance was “sufficiently ‘narrowly tailored’ to affect only that category of businesses shown to produce the harmful secondary effects” because the County had “presented no evidence that a single showing of an adult movie would have any harmful secondary effects on the community.” Id.
I fully agree with Tollis, and believe it to be entirely consistent with the Supreme Court‘s decision in Renton. Mankato presented no evidence that a single showing of an adult performance puts a business in that category of businesses shown to produce harmful secondary effects. As a result, the city failed to show that the ordinance, as applied on a per-day basis, was narrowly tailored under Renton.
I read the majority as rejecting Tollis because, if we require evidence that a single performance causes adverse secondary effects, then we will impose the impossible burden on cities of showing the precise number of performances that will produce harmful secondary effects before it can regulate any adult performances. If the majority is rejecting Tollis on the ground that its analysis would inevitably require courts to determine how many adult performances are too many, I respectfully disagree.
Under Renton, Mankato absolutely has the burden of narrowly tailoring its ordinance. An ordinance that allows the city to regulate the content of a single performance, without presenting evidence that a single performance causes adverse secondary effects, is not narrowly tailored. A per-day application of
Clearly, ordinances can be drafted in such a way that courts will not be required to determine when the number of adult performances — presented by an otherwise “non-adult oriented” business — crosses the constitutional line. For example,