INDEPENDENCE NEWS, INCORPORATED, a North Carolina Corporation; Polo South, Incorporated, Plaintiffs-Appellants, v. CITY OF CHARLOTTE, a North Carolina Municipal Corporation, Defendant-Appellee.
Nos. 08-1654, 08-1655
United States Court of Appeals, Fourth Circuit
June 3, 2009
Argued: March 27, 2009. Decided: June 3, 2009.
568 F.3d 148
The Sentencing Commission has specified seven factors that a sentencing court should consider in deciding whether an adjustment under section 3B1.1(b) is warranted. Those factors are [1] the exercise of decision making authority, [2] the nature of participation in the commission of the offense, [3] the recruitment of accomplices, [4] the claimed right to a larger share of the fruits of the crime, [5] the degree of participation in planning or organizing the offense, [6] the nature and scope of the illegal activity, and [7] the degree of control and authority exercised over others. See USSG § 3B1.1 cmt. n. 4. In United States v. Bartley, 230 F.3d 667, 673-74 (4th Cir.2000), we concluded that such an adjustment was justified where the defendant controlled the activities of other participants in a drug conspiracy, gave advice to street dealers, fixed prices and terms of payment, and directed others to receive payments on his behalf. See 230 F.3d 667, 673-74 (4th Cir.2000); cf. United States v. Sayles, 296 F.3d 219, 225 (4th Cir.2002) (vacating section 3B1.1(b) adjustment because “sole justification offered ... is that [defendants] bought and sold crack“).
As in Bartley, the evidence in this case reveals that Michel exercised substantial management responsibilities over the activities of the conspiracy, controlling the drug buys of other conspirators. For example, Lusca and Jackson had engaged in crack cocaine fronting transactions with Michel, receiving crack from Michel on credit and paying him later after they sold the drugs. For eight or nine months, Michel directed Turner to sell crack for him and receive the payments on his behalf, and Michel would tell Turner “what to bring him back, like $200 or 250.” J.A. 851. Thus, although Michel asserts that “there was no hierarchy of individuals involved in [the] drug dealing operation or organization,” Br. of Appellants 61, the evidence belies this contention. Several witnesses testified concerning Michel‘s substantial role in the crack conspiracy in and around Winchester, and the authorities made at least six controlled buys of crack directly from him. On this record, the court did not clearly err in imposing the section 3B1.1(b) sentencing adjustment for Michel‘s managerial or supervisory role in the conspiracy. We thus also reject his final appellate challenge.
IV.
Pursuant to the foregoing, we affirm Kellam‘s and Michel‘s convictions and Michel‘s sentence. We vacate Kellam‘s sentence, however, and remand for such further proceedings as may be appropriate.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Nos. 08-1654, 08-1655.
United States Court of Appeals, Fourth Circuit.
Argued: March 27, 2009.
Decided: June 3, 2009.
Before WILLIAMS, Chief Judge, and SHEDD and AGEE, Circuit Judges.
Affirmed by published opinion. Chief Judge Williams wrote the opinion, in which Judge Agee concurred. Judge Shedd wrote a separate concurring opinion.
OPINION
WILLIAMS, Chief Judge:
In 1994, the City of Charlotte (“City“) enacted an Adult Zoning Ordinance (“AZO“) to protect certain sensitive uses from the “secondary effects” associated with adult establishments. The ordinance contains an amortization provision that required covered adult establishments to close or relocate to a conforming location by January 18, 2002. Independence News, Inc. (“Independence News“) and Polo South, Inc. (“Polo South“) (collectively, “Appellants“), which own and operate sexually oriented adult establishments subject to the AZO, filed this lawsuit in the Dis-
The district court dismissed the Appellants’ as-applied challenge to the secondary effects rationale of the AZO, and it also granted summary judgment in favor of the City on Appellants’ facial challenge to the AZO‘s variance provision, which does not require the Charlotte Zoning Board of Adjustment (“ZBA“) to consider the absence of “secondary effects” when deciding whether to grant a variance.
On appeal, Appellants challenge both of these rulings. For the following reasons, we affirm.
I.
A.
On January 18, 1994, the City adopted the AZO, a text amendment to the Charlotte Zoning Ordinance. Charlotte, N.C., Ordinance 3782 (Jan. 18, 1994), current version codified at Charlotte, N.C., Code, app. A §§ 2.201, 9.8503, 9.903, 9.1103, and 12.518 (2008). The AZO defined the term “adult establishment” and limited the location of adult establishments to several zoning districts: B-2 (Business), UMUD (Uptown Mixed Use District), and I-1 and I-2 (Industrial). Id. It also included a section, Section 12.518, which required, and continues to require, that adult establishments be located at certain distances from any protected use—that is, any residential district, school, church, child care center, park or playground. Id. Specifically, section 12.518(a) provides that adult bookstores and adult mini-motion picture theaters must be at least 1,500 feet from any protected use, and section 12.518(b) requires that adult live entertainment establishments be at least 1,000 feet from any protected use. Id. Also, section 12.518(c) provides that adult bookstores and adult mini-motion picture theaters must be at least 1,000 feet from any other adult establishment, and section 12.518(d) provides that adult live entertainment establishments be at least 500 feet from any other adult establishment. Id. No more than one adult establishment may be located in the same building. Id.
Section 12.518 was added in an effort to “establish reasonable regulations to prevent a concentration of adult establishments within the City of Charlotte and to separate adult establishments from ... sensitive uses” because “[s]tudies show[] that lowered property values and increased crime rates tend to accompany and are brought about by the concentration of adult establishments.” Id. In the City‘s view, such “[r]egulation ... [wa]s necessary to insure that [the effects from adult establishments] do not contribute to the blighting of surrounding neighborhoods and to protect the integrity of the City‘s schools, churches, child care centers, parks and playgrounds which are typically areas in which juveniles congregate.” Id.
Through the amortization provision, the AZO gave preexisting adult establishments not in compliance with the protected use separation requirements of sections 12.518(a) and (b) until January 18, 2002—eight years from the date of the AZO‘s adoption—to either close or relocate to a conforming location. Id.
Initially, section 12.518 did not allow the ZBA to authorize a variance from the protected use separation requirements, but on March 18, 1996, the City granted the ZBA
[B]efore granting a variance from the separation requirements ..., the Board of Adjustment shall find that thoroughfares, traffic circulation patterns, structures or other natural or man-made geographic or topographic features are likely to provide an adequate measure of protection for the protected zoning or use from any secondary effects of the adult establishment.
Charlotte, N.C., Ordinance 489 (Mar. 18, 1996), codified at Charlotte, N.C., Code, app. A § 12.518(g) (2008).
B.
Independence News has operated an adult bookstore at its present location in the City since 1993.1 In October of 2001, the Charlotte-Mecklenburg Zoning Administrator sent Independence News a notice, advising that Independence News‘s adult uses were in violation of the protected use separation requirements of section 12.518(a) and reminding Independence News that the AZO‘s amortization provision required Independence News to close or relocate to a conforming location by January 18, 2002.
Similarly, Polo South has operated a live adult entertainment establishment known as the “Carousel Club” at its present location in the City since 1993. In October of 2001, the Charlotte-Mecklenburg Zoning Administrator likewise sent Polo South a notice, advising that Polo South‘s adult uses were in violation of the protected use separation requirements of section 12.518(b) and reminding Polo South that the AZO‘s amortization provision required Polo South to close or relocate to a conforming location by January 18, 2002.
One week before the amortization deadline, Independence News and another affected business filed this action in federal district court, challenging certain provisions of the City‘s Zoning Ordinance. A few days later, in another case challenging the AZO, the district court entered a preliminary injunction enjoining the City from enforcing the amortization provision against any affected business pending final resolution. See Queen City Video & News, Inc. v. City of Charlotte, No. 3:00CV618, 2002 WL 32952238 (W.D.N.C. Jan. 16, 2002) (order granting motion for preliminary injunction). The district court held this case in abeyance pending the disposition of the Queen City case.
Ultimately, the district court granted summary judgment in favor of the City in Queen City on all claims except one, and the parties in Queen City entered into a Stipulation of Voluntary Dismissal with Prejudice. The district court then activated this case, and the City consented to the intervention of Polo South and two other affected businesses, agreeing that it would not enforce the amortization provision until the matters before the court were resolved.
The amended complaints filed by Independence News and Polo South demanded a permanent injunction prohibiting the City from enforcing the amortization provision against the Appellants, a declaratory judgment that section 12.518 of the City‘s Zoning Ordinance violated their First Amendment rights both facially and as-applied, and an order directing the ZBA to consider whether the Appellants’ establish-
Relevant to this appeal, Independence News and Polo South claimed that section 12.518 of the AZO is “unconstitutional as applied against [Appellant]s based upon the evidence ... concerning the history of [Appellant]s’ businesses over a nine year period which clearly shows that no adverse secondary effects to protected zoning and uses can be attributed to [Appellant]s’ constitutionally protected adult business uses.” (J.A. at 30, 64.) In particular, Independence News and Polo South alleged that, during the nine year period following the AZO‘s enactment, property values had held steady or generally increased in the area surrounding their establishments; no sex related crimes had occurred in the area, and crime in general had not increased in the area as of result of their adult establishments; a number of businesses had located within the area surrounding the Appellants’ adult establishments; and residential construction was currently taking place within the area surrounding Appellants’ establishments.
On June 3, 2004, the district court granted the City‘s motion for partial judgment on the pleadings and dismissed the as-applied challenge to the secondary effects rationale of the AZO, concluding that “it is settled that [Appellants] can not maintain an ‘as-applied challenge’ to [the] secondary effects rationale of the AZO‘s time, place, and manner restrictions.” (J.A. at 85.) Then, on September 6, 2006, the district court granted in part and denied in part the City‘s motion for partial summary judgment. As part of that order, the district court granted summary judgment in favor of the City on the Appellants’ allegation that the AZO is unconstitutional because its variance provision does not allow the ZBA to consider factual evidence concerning the secondary effects of a particular adult business.
On May 9, 2008, Appellants filed an amended stipulation of dismissal as to all outstanding claims and preserved those resolved issues for this appeal. After a final judgment in favor of the City on the remaining claims asserted by other affected businesses, Appellants timely noticed an appeal, and we possess jurisdiction under
II.
A.
Before us, Appellants contest only two of the district court‘s rulings. First, they contend that, in granting partial judgment on the pleadings in favor of the City, the district court incorrectly concluded that Appellants did not have the right to maintain an as-applied challenge to the application and enforcement of the AZO‘s protected use separation requirements and amortization provision to Appellants’ adult establishments. Second, Appellants contend that the district court erred in granting summary judgment to the City on Appellants’ facial challenge to section 12.518(g). On this claim, the Appellants take issue with the fact that section 12.518(g) does not require the ZBA to
We review de novo the district court‘s decision to grant partial judgment on the pleadings in favor of the City, applying the same standard for
B.
We first turn to the district court‘s grant of partial judgment on the pleadings in favor of the City on Appellants’ as-applied challenge to the AZO‘s protected use separation requirements and amortization provision.
In Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), a case involving a facial challenge to a content-neutral time, place, and manner restriction, the United States Supreme Court stated that “the validity of [the content-neutral time, place and manner restriction] depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government‘s interests in an individual case.... [The restriction] is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the [restriction] than with it.” 491 U.S. at 801, 109 S.Ct. 2746 (emphasis added). Based on this statement, the district court concluded that Appellants could not maintain an as-applied challenge to the secondary effects rationale of the AZO and granted judgment on the pleadings in favor of the City.
We agree with the district court that judgment in favor of the City was proper on this claim. Like the ordinance in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), which prohibited any adult movie theater from locating within 1,000 feet of any residential zone, single-or multiple-family dwelling, church, park, or school, the AZO is properly analyzed as a time, place, and manner regulation because it does not ban adult establishments altogether but merely requires that such establishments be located certain distances from protected uses. See id. at 46, 106 S.Ct. 925 (analyzing Renton ordinance as a time, place, and manner restriction). And, just as the Renton ordinance was aimed at the secondary effects of the adult theaters—that is, increasing crime rates, decreasing property values, and the decreasing quality of Renton‘s neighborhoods—rather than at the content of the films shown at the theaters, the AZO is aimed at the secondary effects of adult establishments, not the content of regulated speech, and is thus properly deemed “content-neutral.” See id. at 47-49, 106 S.Ct. 925 (analyzing the Renton ordinance as content-neutral).
Under Renton, content-neutral time, place, and manner restrictions such as the AZO are “acceptable as long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Id. at 47, 106 S.Ct. 925. Such regulations must also be “narrowly tailored” to achieve the substantial governmental interest. Ward, 491 U.S. at 798, 109 S.Ct. 2746 (“[W]e reaffirm today that a
Moreover, when enacting an ordinance aimed at secondary effects, a City must rely on “evidence of incidental adverse social effect that provides the important governmental interest justifying reasonable time, place and manner restrictions on speech or expressive conduct.” Mitchell v. Comm‘n on Adult Entm‘t Establishments, 10 F.3d 123, 133 (3d Cir.1993). In enacting adult zoning ordinances, the City, however, is entitled to “rely heavily on the experience of, and studies produced by, other cities and states, as well as on court opinions from other jurisdictions,” id. at 133, and need not, before enacting such ordinances, “conduct new studies or produce evidence independent of that 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.” City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925.
In this appeal, Appellants do not argue that the City‘s ordinance was not narrowly tailored to serve a substantial 3 governmental interest, that the City lacked an adequate evidentiary basis for adopting the proposed legislation, or that the ordinance did not provide for reasonable alternative avenues of communication; in fact, Appellants concede that the AZO as adopted was facially valid. Rather, Appellants seek to escape the AZO‘s amortization provision by arguing that, although “a city must have latitude to experiment, at least at the outset,” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring in the judgment), once the data from the “experiment” has been collected, the Appellants must have an opportunity to show that the data does not support the City‘s original hypothesis—that adult establishments generate adverse secondary effects. Thus, according to Appellants, the AZO—a time, place, and manner restriction like the one at issue in Renton—is unconstitutional as-applied to their establishments because empirical data gathered in the years after the passage of the ordinance in 1994 demonstrates that their particular adult establishments have not generated adverse secondary effects and therefore does not support the original theoretical justification for passing the ordinance.
Appellants are quite right that the Supreme Court has indicated that cities “must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” City of Renton, 475 U.S. at 52, 106 S.Ct. 925 (quoting
As discussed above, the applicable standard as it relates to the secondary effects rationale requires only that a city show that, “in enacting its adult [establishment] zoning ordinance,” the city relied on evidence that is “reasonably believed to be relevant to the problem [of secondary effects] that the city addresses.” City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925 (emphasis added). Thus, when cities exer-
What matters here is whether the City had a sufficient evidentiary basis for adopting the ordinance in 1994, see City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925 (looking to evidence of secondary effects available to Renton at the time of enactment), and Appellants concede that it did. Accordingly, the district court‘s grant of partial judgment on the pleadings must be affirmed.
C.
We next turn to the district court‘s grant of summary judgment in favor of the City on Appellants’ claim that the AZO is unconstitutional because its variance provision does not require the ZBA to consider factual evidence concerning the secondary effects of a particular adult business.5 In their complaints, Independence News and Polo South maintain:
The failure on the part of the City Council ... to allow the ... Zoning Board of Adjustment to consider factual evidence negating the presence or existence of adverse secondary effects a particular adult [business] has on protected zoning or uses reflects that the City is not interested in the factual data available
on the issue of the impact of secondary effects on protected uses, and is instead only concerned with the political considerations, moral objections and impermissible objections to constitutionally protected speech and to the content of speech, as opposed to a genuine concern for the prevention and elimination of adverse secondary effects, all in violation of the plaintiff‘s right to the exercise of free speech and the dissemination of constitutionally protected material and the right of free expression, as guaranteed by the First Amendment of the United States Constitution and the Fourteenth Amendment of the United States Constitution.
(J.A. at 30, 65.)
Thus, Appellants request an order directing the ZBA to consider evidence on whether the Appellants’ uses actually generate adverse secondary effects when deciding whether to grant a variance.
Like the as-applied challenge to the AZO‘s secondary effects rationale, this claim seeks an avenue for the Appellants to avoid the consequences of the AZO‘s amortization provision. And, like that challenge, we think this claim too must fail.
In sum, we simply do not see how the Constitution requires a zoning board to consider whether an adult establishment actually generates secondary effects when deciding whether to grant that establishment a variance. Cf. David Vincent, Inc., 200 F.3d 1325 at 1332 n. 11 (noting that the Constitution does not require either a grandfathering clause for existing nonconforming businesses or a waiver provision allowing adult businesses with community approval to locate outside of the areas zoned for their use). This conclusion comports with our conclusion above that the City may enforce the AZO against an adult establishment without regard to whether that particular establishment generates the undesired secondary effects. Thus, we conclude that the district court properly granted summary judgment in favor of the City on this claim.
III.
For the foregoing reasons, the judgments of the district court are hereby
AFFIRMED.
SHEDD, Circuit Judge, concurring:
I concur in the result reached by the majority because I believe appellants’ claims are clearly foreclosed by Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).