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Ord 38-98ORDINANCE NO. 38-98 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, BY AMENDING CHAPTER 113, "ALCOHOLIC BEVERAGES", SECTION 113.20, "PROHIBITION OF NUDITY, PARTIAL NUDITY, SEXUAL CONDUCT AT ALCOHOLIC BEVERAGE ESTABLISHMENTS", SUBSECTION 113.20 (A), "DEFINITIONS", BY AMENDING SUBSECTION 113.20(A)(1), "ALCOHOLIC BEVERAGE ESTABLISHMENT", TO PROVIDE AN AMENDED DEFINITION THEREOF THAT IS DIRECTED TO COMMERCIAL AND BUSINESS ESTABLISHMENTS WHERE ALCOHOLIC BEVERAGES, BEER OR WINE IS AVAILABLE TO BE, OR IS ACTUALLY SOLD, DISPENSED, SERVED, CONSUMED, PROVIDED, POSSESSED OR OFFERED FOR SALE OR CONSUMPTION ON THE PREMISES; PROVIDING A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, the City Commission enacts this ordinance in the interest of the public health, peace, safety morals and general welfare of the citizens of Delray Beach, Florida, pursuant to Article vm, Sections 2(b) and (5), of the Florida Constitution, and Chapter 166, Section 166.021 of the Florida Statutes; and, WHEREAS, the City has determined that the restrictions contained herein are necessary to avoid disturbances associated with mixing alcohol and nude or partially nude dancing and exhibitions; and, WHEREAS, the City Commission determines that mixing alcohol and nude or partially nude dancing and exhibitions encourages undesirable behavior; and, WHEREAS, the City relies on the materials referenced in Ordinance No. 30-98, and the experience in other cities as to the secondary effects of the combination of alcohol and nudity or partial nudity; and, WHEREAS, the City also relies on the cases of City_ of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985); Fillingim v. Boone, 835 F.2d 1389 (llth Cir. 1988); Geaneas v. Willets, 911 F.2d 579 (llth Cir. 1990); Sammy's of Mobile. Ltd. v. City. of Mobile, 140 F.3d 993 (llth Cir. 1998); New York State Liquor Authority_ v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599 (1981); City. of Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383 (1986) reversed; 479 U.S. 1047, 107 S.Ct. 913 (1986); and, WHEREAS, the City Commission finds that the City has a substantial government interest in regulating liquor under the Twenty-first Amendment of the United States Constitution; Staie Constitution and under State law and that the incidental restrictions on First Amendment activity are no greater than necessary to further that interest. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH AS FOLLOWS: ~. That Chapter 113, "Alcoholic Beverages, Section 113.20, "Prohibition of Nudity, Partial Nudity, Sexual Conduct at Alcoholic Beverage Establishments", subsection (A), "Definitions", subsection 113.20(A)(1) is hereby amended to read as follows: Section 113.20 PROHIBITION OF NUDITY. PARTIAL NUDITY. SEXUAL CONDUCT AT ALCOHOLIC BEVERAGE ESTABLISHMENTS. (A) Definitions. (1) "ALCOHOLIC BEVERAGE ESTABLISHMENT" means any business or ~ establishment whether open to the public at large or entrance iS limited by cover charge or membership requirements, including those licensed by the state for sale and/or service of alcoholic beverages, which include but are not limited to. any bottle club. hotel, motel. restaurant, night club. country, club. cabaret, and meeting facility located in the City of Delray Beach, in which alcoholic beverages, beer or wine are. or are available to be sold. dispensed. served, consumed, provided, possessed or offered for sale fc.r or consumption on the premises. ~. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. ~. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. ~. That this ordinance shall become effective immediately upon its passage on second and final reading. 2 OP, D. NO. 38-98 6th day of PASSED AND ADOPTED in regular session on second and f'mal reading on this the October , 1998. First Reading September 22, 1998 Second Reading October 6, 1998 ch113bev.oral 3 ORD. NO. 38-98 MEMORANDUM TO: FROM: SUBJECT: DATE: MAYOR AND CITY COMMISSIONERS CITY MANAGER ~ AGENDA ITEM [0~- REGULAR MEETING OF OCTOBER 6, 1998 ORDINANCE NO. 38-98 (DEFINITION OF ALCOHOLIC BEVERAGE ESTABLISHMENT) SEPTEMBER 30, 1998 This is second reading and a public hearing for Ordinance No. 38-98 which amends Section 113.20 of the City Code by expanding the definition of 'Alcoholic Beverage Establishment' to include business and commercial establishments where alcoholic beverages are not only sold for consumption on the premises, but also where alcoholic beverages are available to be, or are actually dispensed, served, consumed, provided or sold for consumption on the premises. The commercial or business establishments affected include those that do not charge or do charge for entrance or mandate a cover charge as well as those that charge a membership fee. While bottle clubs are not allowed in the City at this time, the term "bottle club" is also included to make it clear that this regulation applies to bottle clubs (if any are allowed in the future or if any are illegally established). The background materials previously submitted to the City Clerk and the cases cited therein for Ordinance No. 30-98 and the background materials cited in the cases referenced in the preamble to this ordinance provide the rationale for the enactment of this regulatory ordinance pursuant to the 21st Amendment of the United States. At first reading on September 22, 1998, the Commission passed the ordinance by unanimous vote. Recommend approval of Ordinance No. 38-98 on second and final reading. ref:agmemoll £1T¥ OF DELRFI¥ BEFI£11 CITY ATTORNEY'S OFFICE DELRAY BEACH Ali.America City TO: ~993 September 18, 1998 City Commission David T. Harden, City Manager Writer's Direct Line: 561/243-7091 FROM: Susan A. Ruby, City Attorney SUBJECT: Ordinance Amending the Definition of Alcoholic Beverage Establishment Contained in Section 113.20 of the Code of Ordinances The attached ordinance amends the City's Code of Ordinances by expanding the definition of Alcoholic Beverage Establishment to include business and commercial establishments where alcoholic beverages are not only sold for consumption on the premises, but also where alcoholic beverages are available to be, or are actually dispensed, served, consumed, provided or sold for consumption on the premises. The commercial or business establishments affected includes those that do not charge or do charge for entrance or mandate a coverage charge and includes those that charge a membership fee. While bottle clubs are not allowed in the City to my knowledge at this time, I have also included the term "bottle club" to make clear that this regulation applies to bottle clubs (if any are allowed in the future, or if any are illegally established). The background materials previously submitted to the City Clerk and the cases cited therein for Ordinance No. 30-98 and the background materials cited in the cases referenced in the preamble to this ordinance provide the rationale for the enactment of this regulatory ordinance pursuant to the 21st Amendment of the United States. Please call if you have any questions. Attachment cc: Alison MacGregor Harty, City Clerk Diane Dominguez, Planning & Zoning Director Lula Butler, Director of Community Improvement adult, sar .,4. Prlnted on Recycled Paper Section 113.20 Section 113.20 PROHIBITION OF ~UD!TY~ ~ARTIAL NUDITYt SEXUAL CONDUCT AT ALCOHOLIC BEVERAGE ESTABLISHMENTS. ' " (A) Definitions. (1) "ALCOHOLIc BEVERAGE ESTABLISHMENT* means any establis4ment located ,in' the City of Delray Beach in which alcoholic beverages, beer or wine are offs=eS for sale for consumption on the premises. (2) "NUDITY" means the exposing tO public view of the human male or female genitalS, pubic area, cleavage of the human buttocks, or that. Portion of the Human female breast encompassed Within an area falling below the horizontal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the nipple), (3) "PARTIAL NUDITY" means the exposing to public view of the. human male or female cleavage of the human buttocks or that portion of the human female breast encompassed within an area falling below the horiz0ntal line one would have to draw to intersect a point immediately above the top of the areola (the colored ring around the. nipple) with less than a full opaque covering; or the depiction of Covered human ~ale genitals in a discernibly turgid state. (B) Nudity, Partial Nudity and Sexual Conduct Prohibited. (1) No person shall engage in nudity in any alcoholic beverage establishment. (2) No employee of, or person having an independent contractual relationship with, the owner or. Operator of an alcoholio'beverage establishment shall engage in partial nudity in any alcohOliC beverage' establishment. (3) ~o person .maintaining, OWning Or. operating an alcoholic beverage establishment shall Suffe~ Or permit any employee or person ha%lng an'independen~' 0OntraotOr status as to the owner or.operator of the alcoholic bev%rage establishment to engage in nudity or partiA~ nudity within any al0Oholio beverage establishment. (4) No person shall engage in and no person maintaining, owning or operating an alcoholic beverage establishment shall suffer or permit any sexual intercourse, masturbation, sodomy, heastiality, oral copulation, flagellation, any sexual act WhiCh is prohibited h¥ law, touching, caressing or fondling of th~ breasts, buttocks, or any portion thereof, anus or genitals or the simulation thereof, within any alcoholic beverage establishment. XI.§9 Section 113.20(C) (C) No establishment permitting nudity or partial nudity may be located within seven hundred fifty (750) feet of any parcel of land upon which an alcoholic beret&ge establishment is located. (D)' For purposes of the above division (C), distance shall be by airline measurement from property line to property line using the closest property lines of the parcels of land involved. The term parcel of land means any quantity of land capable of being described With such definiteness' that its location and boundaries may be established, which is designated by its owner or developer as land to be used or developed as a lot or which has been used or developed as a lot. (Ord. No. 35-90, passed 8/28/90; Am. Ord. No. 56-90, passed Section 113.99 PENALTY. See Section 10.99, "Oeneral Penalty". (Am. Ord. No. 18-95, passed 4/4/95) XI.60 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v. Iacobucci, (U.S.Ky. 1986) *383 107 S.Ct. 383 223k5.1 In general. Page 1 479 U.S. 92, 93 L.Ed.2d 334 Formerly 223k5 CITY OF NEWPORT, KENTUCKY, et al. V. Nicholas A. IACOBUCCI, dba Talk of the Town, et al. No. 86-139. U.S.Ky. 1986. Regulatory authority regarding intoxicating liquors conferred on the states by .the Twenty-First Amendment includes power to ban nude dancing as part of liquor license control program. U.$.C.A. Const. Amend. 21. Supreme Court of the United States Nov. 17, 1986~ Rehearing Denied Jan. 12, 1987. INTOXICATING LIQUORS{g=* 5.1 223 .... 223I Power to Control Traffic 223k5 States 223k5.1 In general. See 479 U.& 1047, 107 & Ct. 913. Formerly 223k5 Action was brought challenging city ordinance prohibiting nude or nearly nude dancing in local establishments · licensed to sell liquor for consumption on the premises. The United States District Court for the Eastern District of Kentucky, William O. Bertelsman, J., upheld the ordinance, and challengers appealed. The Court of Appeals for the Sixth Circuit, 785 F.2d 1354, reversed and remanded to determine city's authority to enact the ordinance under its police power. Certiorari was granted. The Supreme Court held that fact that Commonwealth of Kentucky delegated to city electorate power to decide if liquor could be served in local establishments did not preclude city commission from enacting the ordinance in question. Judgmem of Court of Appeals reversed, and case remanded. Justice Marshall dissented from summary disposition. [See headnote text below] INTOXICATING LIQUORS~S:=, 10(1) 223 .... 223I Power to Control Traffic 223k9 Delegation of Powers 223k10 To Local Authorities in General 223ki0(1) In general. U.S.Ky. 1986. Twenty-First Amendment has given broad power to the states to regulate intoxicating liquors and, generally, states may delegate that power as they see fit. U.S.C.A. Const. Amend. 21. 3. INTOXICATING LIQUORS~=, 11 223 .... 223I Power to Control Traffic 223k9 Delegation of Powers 223kll Concurrent and conflicting regulations by state and municipality. Justice Stevens filed dissenting opinion in which Justice Brennan joined. Justice Scalia would have granted petition for writ of certiorari and set case for oral argument. Order on remand, 812 F.2d 294. 1. INTOXICATING LIQUORS~::~ 5.1 223 2231 Power to Control Traffic 223k5 States U.S.Ky. 1986. Under Twenty-First Amendment fact that Commonwealth of Kentucky delegated to city electorate power to decide if liquor could be served in local establishments did not preclude city commission from enacting ordinance prohibiting nude or nearly nude dancing in local establishments licensed to sell liquor for consumption on the premises, KRS 242.010-242.990; U.S.C.A. Const. Amend. 21. PER CURIAM. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v. In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly *384 nude dancing in local establishments licensed to sell [479 U.S. 93] liquor for consumption on the premises. (FNI) A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiam ), as being within the State's broad power under the Twenty-first Amendment (FN2) to regulate the sale of liquor within its boundaries. Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U.S.C. § 1983 against its enforcement. (FN3) The District Court ruled that the ordinance was constitutional, stating that it "is squarely within the doctrine[479 U.S. 94] of Bellanca ... and must be upheld on that basis." App. to Pet. for Cert. 50a. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. 785 F.2d 1354 (1986). It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth's Constitution, (FN4) Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky.Rev. Stat. §§ 242.010-242.990 (1981 and Supp.1986). Noting this Court's statement in Bellanca that "It]he State's power to ban the 'sale of alcoholic beverages entirely includes the lesser power to ban the sale ,of liquor on premises where topless dancing occurs," 452 U.S., at 717, I01 S.Ct., at 2601, the Court of Appeals' majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca "doctrine" or "rationale~ because the city "cannot exercise in part a power it does not hold in full." 785 F.2d, at 1358. The court remanded the case for a determination, among other things, of the city's authority to enact the ordinance under its Iacobucci, (U.S.Ky. 1986) Page 2 police power. The dissenting judge argued that the majority read Bellanca too narrowly, and *385 he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry. [1] We agree with the dissent's oonclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of [479 U.S. 95] the Twenty- first Amendment is certainly not without limit, (FN5 ) but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States. "While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. ' California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L. Ed.2d 342 (1972). This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. "In LaRue ... we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program." Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975). In Bellanca, the Court upheld a state statute imposing just such a ban. [2] The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the "doctrine" or "rationale~ of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot [479 U.S. 96] regulate nude dancing in bars. In holding that a State "has broad power ... to regulate the times, places, and circumstances under which liquor may be sold,' Bellanca, 452 U.S., at 715, 101 S.Ct., at 2600, this Court has never attached any constitutional significance to a State's division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v. Iacobucci, (U.S.Ky. 1986) Page 3 generally they may delegate this power as they see fit. (FN6) remanded for further proceedings consistent with this opinion. There is certainly no constitutional requirement that the same governmental unit must grant liquor licenses, revoke licenses, and regulate the circumstances under which liquor may be sold. Indeed, while Kentucky provides that the question of local prohibition is to be decided by popular election, the parties are in agreement that the city is vested with the power to revoke a liquor license upon a finding of a violation of state law, a state liquor regulation, or a city ordinance. See Brief in Opposition 7. Yet, the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine *386 the manner of regulation. Thus, if respondents were to prevail in their argument that only voters can ban nudity because only voters have the authority to ban the sale of alcohol, it is possible that nude dancing in bars would be immune from any regulation. [3] The Newport City Commission, in the preamble to the ordinance, determined that nude dancing in establishments serving liquor was "injurious to the citizens" of the city. It found the ordinance necessary to a range of purposes, including "prevent[ing] blight and the deterioration of the City's neighborhoods" [479 U.S. 97] and "decreas[ing] the incidence of crime, disorderly conduct and juveflile delinquency." See 785 F.2d, at 1360. "Given the added presumption in favor of the validity of the ... regulation in this area that the Twenty-first Amendment requires," California v. LaRue, 409 U.S., at 118-119, 93 S.Ct., ,at 397, it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude. The fact that the Commonwealth of Kentucky has delegated one portion of its power under the Twenty-first Amendment to the electorate--the power to decide if liquor may be served in local establishments--does not differentiate this case from Bellanca. The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is Justice SCALIA would grant the petition for a writ of certiorari and set the cause for oral argument. B ~ so ordered. Justice MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e.g., Acosta v. Louisiana Dept. of Health and Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (MARSHALL, J., dissenting). Justice STEVENS, with whom Justice BRENNAN joins, dissenting. As I have previously written, the reasoning in the per curiam summary disposition in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), is "blatantly incorrect." M., at 725, 101 S.Ct., at 2605 (STEVENS, J., dissenting). Neither the plain language nor a fair construction of the purpose of the Twenty-first Amendment lends any support to the Court's holding that the Twenty-first Amendment shields restrictions on speech from full First Amendment review. Without repeating what I said in that opinion, I believe it important [479 U.S. 98] to highlight some of the fundamental defects in the Court's analysis. At one time, not long ago, it was considered elementary that the Twenty-first Amendment merely created an exception to the normal operation of the Commerce Clause. See Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451,461, 50 L. Ed.2d 397 (1976) As the Court explained shortly after the Amendment's passage, the Amendment "sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause.' Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 60 S.Ct. 163, 166, 84 LEd. 128 (1939); see also State Board of Equalization v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38 (1936), In Craig the Court flatly rejected the Twenty-first Amendment as a basis for sustaining a state liquor regulation that otherwise violated the Equal Protection Clause. The Court pointed out that, ~[a]s Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v. lacobucci, (U.S.Ky. 1986) Page 4 one commentator has remarked: 'Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.'" 429 U.S., at 206, 97 S.Ct., at 461 (quoting P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials 258'(1975)); see also Larkin v. Grendel's Den, Inc., 459 U,S. 116, 122, n. 5, 103 S.Ct. *387 505, 509, n. 5, 74 L.Ed.2d 297 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178-179, 92 S.Ct. 1965, 1974, 32 L.Ed.2d 627 (1972); Wisconsin v. Constantineau, 400 U.S. 433, 436, 91 S.Ct. 507,509, 27 L.Ed.2d 515 (1971). premises are equally immune from facial challenges predicated on the First Amendment. (FN2) Unlike its holding in *388 California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Court also concludes that there is no need to consider the substantiality of the evidence supporting the city's justification for its nrdihance; (FN3) the articulation of a legitimate[479 U.S. I01] purpose in the preamble to the ordinance is sufficient. In the words of a student commentator, %ne must inquire why the Court [chooses] to go to such extremes to avoid a first amendment analysis.* Recent Developments--Constitutional Law, 19 VilI.L.Rev. 177, 185 (1973). In recent years, however, the Court has completely distorted the Twenty-first Amendment. It now has a barely discernible effect in Commerce Clause cases, see, e.g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U.S. 573, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263,279, 104 S.Ct. 3049, 3060, 82 .L. Ed.2d 200 (1984), but, under Bellanca and the Court's decision today, it may be dispositive in First Amendment cases. This paradox cannot be overstated: reading Bellanca one would have thought that the Court was prepared to recognize some bite in the Twenty-first Amendment. The intervening decisions in Brown-Forman and Bacchus [479 U.S. 99] demonstrate, however, that it is toothless except when freedom of speech is involved. (FNI) Were this internal inconsistency in interpreting the Twenty-first Amendment the only problem with the Court's analysis, that would still be enough to call these decisions into question. But the problem is far more severe and dangerous than that. The Court has a duty in this case to "assess the substantiality of the governmental interests asserted [and] determine whether those interests could be served by means that would be less intrusive on activity protected by the First Amendment.' Schad v. Mount Ephraim, 452 U.S. 61, 70, 101 S.Ct. 2176, 2183, 68 L.Ed.2d 671 (1981). Shirking this responsibility, the Court instead relies exclusively on the Twenty-first Amendment to sustain a regulation of speech that it assumes, arguendo, would otherwise violate the First Amendment. Through the use of a per curiam summary disposition, the Court concludes that municipal ordinances and state statutes regulating[ 479 U.S. 100] expression in business establishments licensed to sell liquor for consumption on the There are dimensions to this case that the Court's opinion completely ignores. To begin with, the Newport ordinance is not limited to nude dancing, "gross sexuality,~ or barrooms. (FN4) On the contrary, the ordinance applies to every business establishment that requires a liquor license, and, even then, its prohibition is not limited to nudity or to dancing. (FN5) The State's power to regulate the sale of alcoholic beverages extends to a host of business establishments other than ordinary bars. See Ky. Rev. Stat.§ 243.020(3) (1981). For example, a theater cannot sell champagne during an intermission without a liquor license. It is surely strange to suggest that a dramatic production like "Hair" would lose its First Amendment protection because alcoholic beverages might be served [479 U.S. 102] in the lobby during intermission. (FN6) See California *389. v. LaRue, 409 U.S., at 121, 93 S.Ct., at 398 (Douglas, J., dissenting). Perhaps the Court would disavow its rationale if a city sought to apply its ordinance to the performers in a play like ~Halr," or to a production of ~Romeo and Juliet" containing a scene that violates Newport's ordinance. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed,2d 448 (1975). But such a disavowal would, I submit, merely confirm my view that the Twenty- first Amendment really has no bearing whatsoever on the question whether the State's interest in maintaining order in licensed premises outweighs the interest in free expression that is protected by the First Amendment--whether that interest is asserted by a dancer, an actor, or merely an unpopular customer. (FNT) Similarly, I recognize that the Court's attention in this case is focused on the specter of unregulated Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v. Iacobucci, (U.S.Ky. 1986) Page 5 nudity, particularly sexually suggestive dancing. But if there is any integrity to the Court's reasoning on the State's power under the Twenty-first Amendment, it must also embrace other forms of expressive conduct or attire that might be offensive to the majority, or perhaps likely to stimulate violent reactions, but would nevertheless ordinarily be entitled to First Amendment[479 U.S. 103] protection. (FNS) For example, liquor cannot be sold in an athletic stadium, hotel, restaurant, or sidewalk cafe without a liquor license. According to the Court's rationale any restriction on speech--be it content based or neutral-in any of these places enjoys a presumption of validity. It is a strange doctrine indeed that implies that Paul Robert Cohen had a constitutional right to wear his vulgar jacket in a courtroom, but could be sent to jail for wearing it in Yankee Stadium. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L. Ed.2d 284 (1971). Given these concerns, I cannot concur in yet another summary disposition that gives such short shrift to these issues, without even the benefit of briefing on the merits. Bellanca should not be applied, much less extended, (FN9) without taking cognizance of the intervening decisions that have further limited the effect of the Twenty-first Amendment in other areas. Moreover, I continue to believe that the Court is quite wrong in proceeding as if the Twenty-first Amendment repealed not only the Eighteenth Amendment, but some undefined portion of the First Amendment as well. I respectfully dissent. FN1. Newport Ordinance No. 0-82-85, § II, provides: ~It shall be unlawful for and a person is guilty of performing nude or nearly nude activity when that person appears on a business establishment's premises in such a manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or an~~ simulation thereof, or when any female appears on a business establishment's premises in such manner or attire as to expose to view portion of the breast referred to as the areola, nipple, or simulation thereof." Sections IV and V specify criminal and civil penalties for any violation of the ordinance. A proprietor who knowingly permits the proscribed activity on his premises may have his occupational license and liquor license revoked. Ordinance No. 0-82-85 is set forth in its entirety in the appendix to the Court of Appeals' opinion. See 785 F.2d 1354, 1360-1362 (CA6 1986). FN2. The Twenty-first Amendment provides in relevant part: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. ~ FN3. Respondents also challenged a second Newport ordinance, see 785 F.2d, at 1362-1363, requiring employees of establishments that sell liquor by the drink to register with the Police Department and be fingerprinted. The Court of Appeals upheld the constitutionality of this second ordinance as a valid implementation of the city's police power. Id., at 1355-1358. That ordinance is not at issue here. FN4. The Kentucky Constitution, § 61, provides: "The General Assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquors. All elections on this question may be held on a day other than the regular election days." *389 FN5. See, e.g., California v. LaRue, 409 U.S~ 109, 120, n., 93 S.Ct. 390, 398, n., 34 L.Ed.2d 342 (1972) (Stewart, J., concurring): "This is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor within its borders. And it most assuredly is not to say that the Twenty-first Amendment necessarily overrides in its allotted area any other relevant provision of the Constitution. See W~sconsin v. Constantineau, 400 U.S. 433 [91 S.Ct. 507, 27 L.Ed.2d 515 (1971) ]; Hostetter v. ldlewild Bon Voyage Liquor Co~., 377 U.S. 324, 329-334 [84 S.Ct. 1293, 1296-1299, 12 L. Ed.2d Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383, 479 U.S. 92, City of Newport, Ky. v. Iacobucci, (U.S.Ky. 1986) Page 6 350 (1964) ]; Dept. of Revenue v. James Beam Co., 377 U.S. 341 [84 S.Ct. 1247, 12 L.Ed.2d 362 (1964) 1." FN6. Because it found Bellanca inapplicable, the Court of Appeals did not reach the state-law question of delegation of authority by the Commonwealth tO the city of Newport. We express no opinion on this issue. FN 1. The Court fails to explain how its treatment of freedom of speech in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), and this case is consistent with its discussion of the Twenty-first Amendment's lack of effect on the Bill of Rights in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L. Ed.2d 397 (1976). Nor does the Court mention that in a post-Bellanca decision it unequivocally rejected the notion that a State may "exercise its power under the Twenty-first Amendment in a way which impinges upon the Establishment Clause of the First Amendment." Larkin v. Grendel's Den, Inc., 459 U.S. 116, 122, n. 5, 103 S.Ct. 505, 509, n. 5, 74 L.Ed.2d 297 (1982). There was absolutely no discussion of any added presumption of validity in Larkin. These vastly different effects that the Court has attributed to the Twenty-first Amendment can surely not be explained as reflecting a difference in the value that is placed on free speech, from that which is placed on the Equal Protection Clause, or the Establishment Clause. In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the Court firmly declared that there is no "principled basis on which to create a hierarchy of constitutional values.' Id., at 484, 102 S.Ct., at 765. In so stating, the Court declined to afford the Establishment Clause any special respect. Yet today, the Court not only appears to reject the proposition that all constitutional values are equivalent, but actua!ly concludes that some of the other values protected by the First Amendment are at the low end of the sliding scale. FN2. Bellanca, of course, dealt with the Twenty- first Amendment's effect on a state statute, not on a municipality's ordinance. The distinction between States and their subparts is dispositive in some areas of the law. See, e.g., Community Communications Co. v. Boulder, 455 U.S. 40, 48-52, 102 S.Ct. 835, 839-841, 70 L.Ed.2d 810 (1982) (antitrust immunity for "state action'); Illinois v. City of Milwaukee, 406 U.S. 91, 93-98, 92 S.Ct. 1385, 1387-1390, 31 L.Ed.2d 712 (1972) (Supreme Court's original jurisdiction); Lincoln County v. Luning, 133 U.S. 529; 10 S.Ct. 363, 33 L.Ed. 766 (1890) (Eleventh Amendment). Of course, in some other areas, a municipality is equated with the State. See, e.g., Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (double jeopardy); Avery v. Midland County, 390 U.S. 474, 480, 88 S.Ct. 1114, 1118, 20 L.Ed.2d 45 (1968) (Fourteenth Amendment). These cases demonstrate that the "particular factual and legal context is all important' in determining whether the state-municipality distinction is relevant. Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 430, n. 7, 98 S.Ct. 1123, 1145, n. 7, 55 L.Ed.2d 364 (1978) (Stewart, J., dissenting). Today, however, for the first time in the Twenty-first Amendment's history, the Court holds that it applies equally to municipalities. Until now, the Court had twice been faced with cases involving delegation of a State's Twenty-first Amendment authority, and it reserved passing on the delegation question in both cases. See Grendel's Den, 459 U.S., at 122, 103 S.Ct., at 509; Doran v. Salem Inn, Inc., 422 U.S. 922, 933, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975). I certainly would have thought that this question merits some analysis, even if it does not, in the Court's view, merit more than a per curiam summary reversal. *389_ FN3. In LaRue, California's Department of Alcoholic Beverage Control had held hearings on the problems that had become associated with nude dancing. Witnesses included representatives of law enforcement agencies, counsel, and owners of licensed premises, and Department investigators. 409 U.S., at 111, 93 S.Ct., at 393. The evidence demonstrated that a wide range of illegal conduct, including juvenile prostitution, indecent exposure to young girls, rapes, and assault on police officers, was taking place in and around the nude dancing establishments. Ibid. The Court's decision to uphold the regulation was thus grounded in "the evidence from the hearings that [the Department] cited to the District Court. ~ /d., at 115, 93 S.Ct., at 395. See also Schad v. Mount Ephraim, 452 U.S. 61, 69-73, 101 S.Ct. 2176, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 107 S.Ct. 383,479 U.S. 92, City of Newport, Ky. v, 2183-2185, 68 L.Ed.2d 671 (1981) (refusing to uphold infringement of First Amendment rights where the State did not present actual evidence to support its purported justifications for the statute). This case stands in striking contrast; the Court of Appeals stated that "no substantive evidence concerning the government's justifications for the ordinance was presented" to the District Court. 785 F.2d 1354, 1359 (1986). FN4. This is not to say that an ordinance limited to barrooms would necessarily be valid. As I suggested in Bellanca, 452 U.S., at 723, n. 10, 101 S.Ct., at 2604, n. 10, a barroom might be the most appropriate forum for this type of entertainment since the patrons of such establishments generally know what to expect when they enter and they are free to leave if they disapprove of what they see or hear. Cf. Splawn v. California, 431 U.S. 595, 604, 97 S.Ct. 1987, 1992, 52 L.Ed.2d 606 (1977) (STEVENS, J., dissenting) (bookstore's advertisement that it sold sexually provocative material put uninterested passersby on notice). This case is wholly unlike those in which we have recognized the legitimate interest in keeping pigs out of the parlor. Cf. FCC v. Pacifica Foundation, 438 U.S. 726, 750, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978). As long as people who like pigs keep them in secluded barnyards, they do not offend the sensibilities of the general public. FN5. The ordinance makes it a crime for any female to appear on a licensed business establishment's premises "in such manner or attire as to expose to view any portion of the breast referred to as the areola, nipple, or simulation thereof." FN6. It is of no consolation that the bar owner can retain nude dancing as long as he foregoes his Iacobucci, (U.S.Ky. 1986) Page 7 liquor license, or that a theater may run a production with some nudity as long as it does the same. See California v. LaRue, 409 U.S., at 136-137, 93 S.Ct., at 406 (MARSHALL, J., dissenting). Even 23 years ago it was 'too late in the day to doubt that the liberties of religion and expression may be infringed by' the denial of or placing of conditions upon a benefit or privilege.' Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L,Ed.2d 965 (1963); see generally Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L.Rev. 1439 (1968). FN7. One of the anomalies of the Court's approach is that Newport's ordinance would presumably be subject to vastly different scrutiny were a bar owner to sell only liquor that is produced within the State. Since the Twenty-first Amendment deals only with a State's power to regulate "transportation or importation into' the State, it would have no effect on a Kentucky bar selling Kentucky bourbon. In such a case, the full force of the First Amendment would apply. FNS. Notwithstanding the Court's broad pronouncements on the omnipotence of the Twenty-first Amendment, I would hope that it would still "be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that political discussions in bars often lead to disorderly behavior, assaults and even homicide. # Bellanca v. New York State Liquor Authority, 50 N.Y.2d 524, 531, n. 7, 429 N.Y.S.2d 616, 619, n. 7, 407 N.E.2d 460, 464, n. 7 (1980). *389_ FN9. See n. 2, supra. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 1 *2599 101S.Ct. 2599 452 U.S. 714, 69 L.Ed.2d 357, 7 Media L. Rep. 1500 NEW YORK STATE LIQUOR AUTHORITY V. Dennis BELLANCA, dba The Main Event, et al. No. 80-813. Supreme Court of the United States June 22, 1981. 2. INTOXICATING LIQUORS~=, 6 223 .... 223I Power to Control Traffic 223k5 States 223k6 Legislative regulation. U.S.N.Y. 1981. State has broad power under Twenty-First Amendment to regulate time, places and circumstances under which liquor may be sold. U.S.C.A.Const. Amend. 21. 3. INTOXICATING LIQUORS~=' 15 223 .... 223II Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. Owners of nightclubs, bars and restaurants brought action in which they sought declaratory judgment that New York statute prohibiting topless dancing at licensed premises was unconstitutional and sought injunctive relieL The Supreme Court, Erie County, Special Term, John H. Doerr, J., granted plaintiffs summary judgment declaring statute unconstitutional, and State appealed. The Court of Appeals, 50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460, Wachtler, J., affirmed, and certiorari was granted. The Supreme Court held that statute was constitutional. Reversed and remanded. Justice Marshall concurred in the judgment. Justice Brennan dissented from summary disposition. Justice Stevens dissented and filed opinion. U.S.N.Y. 1981. New York statute prohibiting topless dancing in establishment licensed by state to serve liquor was not unconstitutional. N.Y.Alcoholic Beverage Control Law § 106, subd, 6a; U.S.C.A.Const. Amend. 21. *2600 PER CURIAM. The question presented in this case is the power of a State to prohibit topless dancing in an establishment licensed by the State to serve liquor. In 1977, the State of New York amended its Alcoholic Beverage Control Law to prohibit nude dancing in establishments licensed by the State to sell liquor for on-premises consumption. N.Y.Alco. Bev. Cont. Law, § 106, subd. 6-a (McKinney Supp.1980-1981). (FNI) The statute[ 452 U.S. 715] does not provide for criminal penalties, but its violation may cause an establishment to lose its liquor license. Opinion on remand, 54 N.Y.2d 228, 445 N.Y.S.2d 87,429 N.E.2d 765. 1. INTOXICATING LIQUORS~:=, 6 223 .... 223I Power to Control Traffic 223k5 States 223k6 Legislative regulation. U.S.N.Y. 1981. State has absolute power under Twenty-First Amendment to prohibit totally the sale of liquor within its boundaries. U.S.C.A.Const. Amend. 21. Respondents, owners of nightclubs, bars, and restaurants which had for a number of years offered topless dancing, brought a declaratory judgment action in state court, alleging that the statute violates the First Amendment of the United States Constitution insofar as it prohibits all topless dancing in ali licensed premises. The New York Supreme Court, 50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460, declared the statute unconstitutional, and the New York Court of Appeals affirmed by a divided vote. 50 N.Y.2d 524, 429 N.Y.S.2d 616, 407 N.E.2d 460. It reasoned that topless dancing was a form of protected expression under the First Amendment and Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 2 that the State had not demonstrated a need for prohibiting "licensees from presenting nonobscene topless dancing . performances to willing customers .... "Id., at 529, 429 N.Y.S.2d, at 619, 407 N.E.2d, at 463. The dissem contended that the statute was well within the State's power, conferred by the Twenty-first Amendment, to regulate the sale of liquor within its boundaries. (FN2) We agree with the reasoning of the dissent and now reverse the decision of the New York Court of Appeals. [1] [2] This Court has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138,60 S.Ct. 163, 167, 84 L.Ed. 128 (1939). It is eqUally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) , we upheld the facial constitutionality of a statute prohibiting acts of "gross sexuality," including the display of the genitals and live or filmed performances of sexual acts, in establishments licensed by the State to serve [452 U.S. 716] liquor. Although we recognized that not all of the prohibited acts would be found obscene and were therefore entitled to some measure of First Amendment protection, we reasoned that the statute was within the State's broad power under the Twenty-first Amendment to regulate the sale of liquor. '2601 In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), we considered a First Amendment challenge to a local ordinance which prohibited females from appearing topless not just in bars, but "any public place.' Though we concluded that the District Court had not abused its discretion in granting a preliminary injunction against enforcement of the ordinance, that decision does nOt limit our holding in LaRue. First, because Doran arose in the context of a preliminary injunction, we limited our standard of review to whether the District Court abused its discretion in concluding that ~Plaintiffs were likely to prevail on the merits of their claim, not whether the ordinance actually violated the First Amendment. Thus, the decision may not be considered a "final judicial decision based on the actual merits of the controversy." University of Texas v. Camenisch, 451 U.S. 390, 396, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). Second, the ordinance was far broader than the ordinance involved either in LaRue or here, since it proscribed conduct at 'any public place,~ a term that ' 'could include the theater, town hall, opera place, as well as a public market place, street or any place of assembly, indoors or outdoors.'" 422 U.S., at 933,' 95 S.Ct., at 2568 (quoting Salem Inn, Inc. v. Frank, 364 F.Supp. 478, 483 (EDNY 1973)). Here, in contrast, the State has not attempted to ban topless dancing in "any public place": As in LaRue, the statute's prohibition applies only to establishments which are licensed by the State to serve liquor. Indeed, we explicitly recognized in Doran that a more narrowly drawn statute would survive judicial scrutiny: "Although the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 [452 U.S. 717] U.S. 109, 118 [93 S.Ct. 390, 397, 34 L.Ed.2d 342] (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances. In LaRue, however, we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as part of its liquor license control program." 422 U.S., at 932-933, 95 S.Ct., at 2568-2569. [3] Judged by the standards announced in LaRue and Doran, the statute at issue here is not unconstitutional. What the New York Legislature has done in this case is precisely what this Court in Doran has said a State may do. Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs. Respondents nonetheless insist that LaRue is distinguishable from this case, since the statute there prohibited acts of "gross sexuality' and was well supported by legislative findings demonstrating a need for the rule. They argue that the statute here is unconstitutional as applied to topless dancing because there is no legislative finding that topless dancing poses anywhere near the problem posed by Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 3 acts of "gross sexuality." But even if explicit legislative findings were required to uphold the constitutionality of this statute as applied to topless dancing, those findings exist in this case. The purposes of the statute have been set forth in an accompanying legislative memorandum, New York State Legislative Annual 150 (1977). "Nudity is the kind of conduct that is a proper subject for legislative action as well as regulation by the State Liquor Authority as a phase of liquor licensing. It has long been held that sexual acts and performances [452 U.S. 718] may constitute disorderly behavior within the meaning of the Alcoholic Beverage Control Law .... "Common sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will once and for all, outlaw conduct which is now quite out of hand." In short, the elected representatives of the State of New York have chosen to avoid *2602 the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on- premises consumption. Given the "added presumption in favor of the validity of the state regulation' conferred by the Twenty-first Amendment, California v. LaRue, 409 U.S., at 118, 93 S.Ct., at 397, we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts, f Accordingly, the petition for certiorari is granted, the judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. disposition and would set the case for oral argument. Justice STEVENS, dissenting. Although the Court has written several opinions implying that nude or partially nude dancing is a form of expressive [452 U.S. 719] activity protected by the First Amendment, the Court has never directly confronted the question. (FNI) Today the Court construes the Twenty-first Amendment as a source of power permitting the State to prohibit such presumably protected activities in establishments which serve liquor. The Court relies on California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342, for that construction of the Twenty-first Amendment. The rationale of today's decision however, is not the same as the explanation the Court gave for its holding in that case. The syllogism supporting today's conclusion includes the premise that the State's Twenty-first Amendment power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where activity assumed to be protected by the First Amendmem occurs, (FN2) If that reasoning is sound, then a State may ban any protected activity on such premises, no matter how innocuous or, more importantly, how clearly protected. (FN3) In California v. LaRue, instead of relying on the simplistic reasoning employed by the Court today, the majority analyzed the issue by balancing the State's interests in preventing specifically identified social harms against the minimal interest in protected expression implicated by nude dancing. (FN4) [452 U.S. 720] The opinion reflected the view that the degree of protection afforded by the *2603 First Amendment is a variable, and that the slight interest in free expression implicated by naked and lewd dancing was plainly outweighed by the State's interest--supported by explicit legislative findings--in maintaining order and decency. (FN5) The Twenty-first Amendment provided the Court with an 'added presumption,' 409 U.S., at 118, 93 S.Ct., at 397, to tip the scales in the direction of law and order, (FN6) but the opinion's[452 U.S. 721] evaluation of the conflicting interests would surely have led to the same result without that makeweight. (FN7) Justice MARSHALL concurs in the judgment. Justice BRENNAN dissents from the summary The explicit legislative findings on which the Court heavily relied in LaRue have no counterpart in this case. The 1977 amendment to the New York Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599,'452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 4 Alcoholic Beverage Control Law left in place the prohibition against nude dancing that had been in effect for some time. Prior to 1977, topless dancing had been permitted subject to regulation that required the performer to dance on a stage that was inaccessible to patrons. (FNS) The State has not indicated that the New York Legislature was presented with any evidence to the effect that this regulated form of entertainment had produced any undesirable consequences. A memorandum in the New York State Legislative Annual (1977), see ante , at 2601, notes that nudity had "long been held" to constitute disorderly behavior within the meaning of the law as it then existed, but that [452 U.S. 722] memorandum sheds no light whatever on the decision to prohibit topless dancing as well as nudity. (FN9) The New York Court of *2604 Appeals stated that this law "was not prompted by hearings or any legislative awareness of deficiencies in the prior regulation permitting topless dancing subject to restrictions and the continued supervision of the State Liquor Authority." 50 N.Y.2d 524, 530, 429 N.Y.S.2d 616, 620, 407 N.E.2d 460, 464. I therefore believe that we must assume that the pre-1977 regulation adequately avoided the kind of "gross sexuality" that gave rise to the regulation challenged in LaRue. Although the emphasis on the legislative findings in this Court's opinion in LaRue may have merely disguised the Court's real holding, the Court is quite wrong today when it implies that the factors that §upported the holding in LaRue are also present in this case. This case does not involve "gross sexuality" or any legislative explanation for the 1977 change in the law to prohibit topless dancing. Having said this, I must confess that if the question whether a State may prohibit nude or partially nude dancing [452 U.S. 723] in commercial establishments were squarely confronted on its merits, I might well conclude that this is the sort of question that may be resolved by the elected representatives of a community. Sooner or later that issue will be briefed and argued on its own merits. (FN10) I dissent in this case because I believe the Court should not continue to obscure that issue with irrelevancies such as its mischievous suggestion that the Twenty-first Amendment gives States power to censor free expression in places where liquor is served. (FNII) Neither the language (FNI2) nor the history of that Amendment provides any [452 U.S. 724] support for that suggestion. (FN13) Nor does *2605. LaRue justify it. (FN14) Without any aid from the Twenty-first Amendment, the [452 U.S. 725] State's ordinary police powers are adequate to support the prohibition of nuisances in taverns or elsewhere. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310. ' Although I voted to deny certiorari and allow the decision of the highest court of the State of New York to stand, certiorari having been granted. I dissent from the Court's disposition of the case on the basis of a blatantly incorrect reading of the Twenty-first Amendment. FN1. The statute provides: "No retail licensee for on premises consumption shall suffer or permit any person to appear on licensed premises in such manner or attire as to expose to view any portion of the pubic area, anus, vulva or genitals, or any simulation thereof, nor shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof." FN2. The Twenty-first Amendment provides in relevant part that "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." FN1. See Doran v. Salem, Inn., Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-558, 95 S.Ct. 1239, 1245-1246, 43 L.Ed.2d 448; California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342; Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671. FN2. "The State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Ante, at 2601. FN3. Rejecting this reasoning, the New York Court of Appeals noted that "it would be most difficult to sustain a law prohibiting political discussions in places where alcohol is sold by the drink, even though the record may show, conclusively, that Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 5 political discussions in bars often lead to disorderly behavior, assaults and even homicide." 50 N.Y.2d 524, 531, n. 7, 429 N.Y.S.2d 616, 620, n. 7, 407 N.E.2d 460, 464, n. 7. FN4. The Court's opinion in LaRue recounted in explicit detail the undesirable consequences-- described in evidence adduced at public hearings-- resulting from the performance of lewd or naked dancing and entertainment in bars and cocktail lounges. See 409 U.S., at 111-112, 93 S.Ct., at 393-394. After emphasizing the State's interests in eliminating those consequences the Court turned to a discussion of the First Amendment and stated that "as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases." M., at 117, 93 S.Ct., at 396. FN5. In minimizing the First Amendment interests in nude dancing and recognizing the State's interest in regulating such behavior, the Court stated: "The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances' that partake more of gross sexuality than of communication .... %.. [W]e conceive the State's authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance are without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interest for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater." Id., at 118, 93 S.Ct., at 397. FN6. The cour't recognized that the Twenty-first Amendment Confers "something more than the normal state authority over public health, welfare, and morals." Id., at 114, 93 S.Ct., at 395. In discussing decisions construing the Twenty-first Amendment, however, the Court noted that, "[t]hese decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations." /d., at 115, 93 S.Ct., at 395. *2605_ FN7. In discussing the Twenty-first Amendment, the Court recognized that the States, "vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power .... ~ Id., at 114, 93 S.Ct., at 395. The Court held that the Department of Alcoholic Beverage Control's "conclusion ... that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution." Id., at 118-119, 93 S.Ct., at 397. FN8. The pre-1977 regulation prohibited the licensee from permitting 'any female to appear on licensed premises" so as ~to expose to view any portion of the breast below the top of the areola" but contained an exception for "any female entertainer performing on a stage or platform which is at least 18 inches above the immediate floor level and which is removed by at least six feet from the nearest patron.~ See 50 N.Y.2d, at 526, n. 2, 429 N.Y.S.2d, at 617, n. 2, 407 N.E.2d, at 461-462, n. 2. The 1977 amendment incorporated the general prohibition of topless dancing but did not incorporate the exception. See N.Y.Alco. Bev.Cont. Law, § 106, subd. 6-a (McKinney Supp. 1980-1981). FN9. The New York Court of Appeals recognized the difference between nude and topless dancing and emphasized the limited nature of respondents' challenge: "In the case now before us the plaintiffs do not claim a right to offer performances of explicit sexual acts, live or filmed, real or simulated. Nor are we concerned with nude dancing. There is no contention that the plaintiffs should have a right to present their dancers entirely unclothed, and thus they do not challenge that portion of the statute which prohibits nudity. Nor do they contest the statute insofar as it would prohibit women other than dancers from appearing barebreasted on their Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 6 premises. Similarly the plaintiffs do not contest the State's right to place some restriction on topless dancing performances as the Liquor Authority's regulations have done in the past. Finally, of course, the plaintiffs do not claim that they are exempted from the obscenity laws or that topless dancing should always be allowed no matter how, or where performed. The only question before us is whether the statute is constitutional to the extent that it absolutely prohibits liquor licensees from presenting nonobscene topless dancing performances to willing customers under ali circumstances." 50 N.Y.2d, at 529, 429 N.Y.S.2d, at 619, 407 N.E.2d, at 463. FNI0. If topless dancing is entitled to First Amendment protection, it would seem to me that the places where it should most appropriately be conducted are places where alcoholic beverages are served. A holding that a state liquor board may prohibit its licensees from allowing such dancing on their premises may therefore be the practical equivalent of a holding that the activity is not protected by the First Amendment. FNII. In Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350, the Court recognized the effect of the Twenty-first Amendment on the Commerce Clause but included a reminder that is pertinent here: "Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Id., at 332, 84 S.Ct., at 1298. That admonition is even more important in the context presented by the instant case, inasmuch as the drafters of the Twenty-first Amendment clearly intended the Amendment to have some impact on the Commerce Clause. That conclusion, contrary to the Court's reasoning, is totally unsupported with respect to the First Amendment. that in "determining state powers under the Twenty-first Amendment, the Court has focused primarily on the language of the provision .... " The difference between the Court's interpretation of the Twenty-first Amendment and its plain language is quite dramatic. The pertinent section of that Amendment provides: ' "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' *2605_ FNI3. In Craig v. Boren, 429 U.S. 190, 206, 97 S.Ct. 451,461-462, 50 L. Ed.2d 397, the Court stated that "It]his Court's decisions ... have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause." The Court then unequivocally rejected the Twenty-first Amendment as a basis for sustaining state liquor regulations that otherwise violated the Equal Protection Clause: "Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty- first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: 'Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.' P. Brest, Processes of Constitutional Decisionmaking, Cases and Materials, 258 (1975). Any departures from this historical view have been limited and sporadic. N Ibid. Cf. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515. Surely the First Amendment is entitled to a status equal to the Fourteenth Amendment. FN14. Ironically, today the Court adopts an argument that the appellant expressly disclaimed during the oral argument in LaRue: FN12. In California Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 106-107, 100 S.Ct. 937, 943-944, 63 L. Ed.2d 233, the Court rejected a claim that the Twenty-first Amendment prohibited the application of the Sherman Act to California's system of wine pricing and pointed out "QUESTION: Mr. Porter, in your argument here, is it based at all on the Twenty-First Amendment, dealing with the State authority over regulation of alcoholic beverages? "MR. PORTER: Based to the extent that if we are Copyright (c) West Group 1998 No claim to original U.S. Govt. works I01 S.Ct. 2599, 452 U.S. 714, New York State Liquor Authority v. Bellanca, (U.S.N.Y. 1981) Page 7 in the First Amendment area, then as far as balancing the State's interests, we submit that both the traditional power that a State has had over the conditions surrounding the sale of alcoholic beverages and the power given to the States under the Twenty-First Amendment must be considered in balancing the State interests, that these are substantial and important State interests, where we're talking about the conditions surrounding the sale and consumption of alcoholic beverages. "We have never argued, nor would we ever argue, that the Twenty-First Amendment would automatically override the First Amendment, or any other part of the Constitution. We only urge that-- "QUESTION: And it has been held that the Twenty-First Amendment overrode a good deal of the equal protection clause of the Fourteenth Amendment, hasn't it? It was in the Younger case. "MR. PORTER: Yes, but I would submit that--or I would, myself, attempt to temper that somewhat, to the extent I think it shows an overriding State interest in weighing between the commerce clause and the Twenty-First Amendment, where you get up in equal protection, where you get up into the First Amendment or some so-called, alleged, preferred amendments of the Constitution. "QUESTION: Well, it has been held that the Twenty-First Amendment overrode a great deal of the commerce clause, hasn't it7 "MR. PORTER: WEII,-- "QUESTION: And it does, by its terms. "MR. PORTER: That's correct, but I-- "As I said, we do not argue that it overrides the First Amendment. If we're dealing in a First Amendment area, that great weight should be given to the State's interest and power under the Twenty- First Amendment, in balancing and weighing, the State interest outweighs the State interest to be protected under the First Amendment.~ Tr. of Oral Arg. in California v. LaRue, O.T.1972, No. 71-36, pp. 10-12. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 140 F.3d 993 l 1 Fla. L. Weekly Fed. C 1335 (Cite as: 140 F.3d 993) Page I SAMMY'S OF MOBILE, LTD., an Alabama Limited Partnership; Sammy's Management Company, Inc., an Alabama Corporation, Plaintiffs-Appellants, V. CITY OF MOBILE, a Body Corporate and Politic, Defendant-Appellee. J & B SOCIAL CLUB, tt 1, INC., d.b.a. The Candy Store, Jennifer Q. Bodiford; et al., Plaintiffs-Appellants, V. The CITY OF MOBILE, ALABAMA, Defendant-Appellee, No. 96-7073. United States Court of Appeals, Eleventh Circuit. May 8, 1998. Two clubs that held liquor licenses and offer nude entertainment brought separate actions challenging constitutionality of city ordinance prohibiting nude dancing in establishments licensed to sell liquor. After one action was removed to federal court and actions were consolidated, the United States District Court for the Southern District of Alabama, Nos. 96-0176-BH-M, 96- 0246-BH-SL, W.B. Hand, J., granted summary~ judgment in favor of city, and clubs appealed. 'The Court of Appeals, Hill, Senior Circuit Judge, held that ordinance satisfied First Amendment restrictions on the regulation of expressive conduct. [2l CONSTITUTIONAL LAW ~::=,90.4(5) 92k90.4(5) City ordinance prohibiting nude dancing in establishments licensed to sell liquor satisfied First Amendment restrictions on the regulation of expressive conduct; ordinance furthered city's interest in combating problems created by the combination of alcohol and nude entertainment, that interest was unrelated to suppression of free expression, and ordinance was narrowly tailored to the problem. U.S.C.A. Const. Amend. 1. [2] INTOXICATING LIQUORS 223k15 City ordinance prohibiting nude dancing in establishments licensed to sell liquor satisfied First Amendment restrictions on the regulation of expressive conduct; ordinance furthered city's interest in combating problems created by the combination of alcohol and nude entertainment, that interest was unrelated to suppression of free expression, and ordinance was narrowly tailored to the problem. U.S.C.A. Const. Amend. 1. [31 CONSTITUTIONAL LAW ~g:=,90.4(5) 92k90.4(5) There is no constitutional requirement that a city make particularized findings regarding the adverse effects of the combination of alcohol and nude entertainment for an ordinance prohibiting the sale of alcohol at establishments offering nude entertainment to satisfy First Amendment restrictions on the regulation of expressive conduct. U.S.C.A. Const.Amend. 1. Affirmed. Kravitch, Senior Circuit Judge, filed dissenting opinion. [1] CONSTITUTIONAL LAW ~::~90(3) 92k90(3) Under intermediate scrutiny test, an ordinance regulating expressive conduct does not violate First Amendment free speech protections if: (1) the interest served is within the power of the government; (2) the regulation furthers that interest; (3) the interest served is unrelated to free expression; and (4) there is no less restrictive alternative. U.S.C.A. Const. Amend. 1. [4] CONSTITUTIONAL LAW ¢=,90.4(5) 92k90.4(5) In determining whether city ordinance prohibiting nude dancing in establishments licensed to sell liquor satisfied First Amendment restrictions on the regulation of expressive conduct, ordinance's requirement that dancers partially cover their breasts or cease to serve alcohol was least restriction possible which would still further city's interest in controlling problems created by mixture of alcohol and nudity. U.S.C.A. Const. Amend. 1. [4] INTOXICATING LIQUORS 223k15 In determining whether city ordinance prohibiting nude dancing in establishments licensed to sell liquor Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993) Page 2 satisfied First Amendment restrictions on the regulation of expressive conduct, ordinance's requirement that dancers partially cover their breasts or cease to serve alcohol was least restriction possibl6 which would still further city's interest in controlling problems created by mixture of alcohol and nudity. U.S.C.A. Coast. Amend. 1. [5] CONSTITUTIONAL LAW ~:='90.4(5) 92k90.4(5) Experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well wisdom and common sense satisfied requirement that city have reasonable basis for concluding that ordinance prohibiting nude dancing in establishments licensed to sell liquor addressed problems created by sale of liquor at establishments offering nude entertainment, as required by First Amendment free speech protections. U.S.C.A. Coast. Amend. 1. [5] INTOXICATING LIQUORS ~:='15 223k15 Experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well wisdom and common sense satisfied requirement that city have reasonable basis for concluding that ordinance prohibiting nude dancing in establishments licensed to sell liquor addressed problems created by sale of liquor at establishments offering nude entertainment, as required by First Amendment free speech protections. U.S.C.A. Coast. Amend. I. [6] CONSTITUTIONAL LAW ~:='90.4(5) 92k90.4(5) City ordinance prohibiting nude dancing in establishments licensed to sell liquor was not a %ontent-based" regulation, subject to a "searching~ level of scrutiny when challenged as violating First Amendment free speech protections; ordinance did not seek to ban nude dancing, but restricted only place or manner of nude dancing without regulating any particular message it might convey. U.S.C.A. Coast. Amend. 1. *994 Donald M. Briskman, Mobile, AL, Luke Charles Lirot, Lirot & Dolan, Tampa, FL, for Sammy's of Mobile and Sammy's Management. Roderick P. Stout, W. Perry Hall, Mobile, AL, for Defendant-Appellee. Appeal from the¢ United States District Court for the Southern District of Alabama. Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit Judges. HILL, Senior Circuit Judge: The City of Mobile prohibits nude dancing in establishments licensed to sell liquor. Two clubs brought suit seeking an injunction prohibiting the City from enforcing its ordinance. The clubs claim the ordinance violates their rights under the First Amendment to the Constitution. The district court granted summary judgment to the City. For the following reasons, we affirm. Ordinance 03-003 [FN1] of the City of Mobile, Alabama provides: FNI. The ordinance was enacted on February 6, 1996. It shall be unlawful for any manager, officer, agent, servant, employee, or person in charge of any establishment within the City of Mobile or the police jurisdiction thereof, licensed to sell spirituous or vinous liquors or malt or brewed beverages under the laws of the State of Alabama, *995 knowingly to exhibit, suffer, allow, permit, engage in, participate in, or be couneeted with, any motion picture, show, performance, or other presentation upon the licensed premises, which, in whole or in part, depicts nudity or sexual conducts or any simulation thereof. Any person, firm or corporation convicted for violating this ordinance shall be fined not more than $500.00 and sentenced to imprisonment for a period not exceeding six months, at the discretion of the court trying the case. [FN2] ' FN2. The ordinance defines "nudity' as: [T]he showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the darkened area surrounding the nipple, or the depiction of covered male genitals in a discernibly turgid state. The preamble to the ordinance provides: WHEREAS, the City Council of the City of Mobile, Alabama, finds and declares that nudity and sexual conduct and depiction thereof, coupled Copt. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *995) Page 3 with alcohol in public places, encourages undesirable behavior and is not in the interest of the public health, safety, and welfare. WHEREAS, the Council has chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell spiritous or vinous liquors or malt or brewed beverages. NOW, THEREFORE, the Council adopts this Ordinance pursuant to the powers under the Twenty-first Amendment to the Constitution of the United States delegated to it by the State of Alabama. Id. moved for summary judgment. The district court granted summary judgment to the City on all claims. The court concluded that the ordinance does not offend the First Amendment under the four-part test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L. Ed.2d 672 (1968), and that plaintiffs' remaining claims lack merit. Sammy's and The Candy Store appeal, contending that the district court erred in holding that the ordinance does not offend the First Amendment or the due process and equal protection clauses of the fourteenth Amendment. We review the district court's grant of summary judgment de novo. Gordan v. Cochran, 116 F.3d 1438, 1439 (llth Cir. 1997). Prior to the enactment of the ordinance, Sammy's of Mobile, Ltd., (Sammy's), and The Candy Store were licensed to sell alcoholic beverages for on- premises consumption and offered topless female dancing. Sammy's surrendered its liquor license after the passage of the ordinance, and continues to offer topless, as well as totally nude, dancing. The Candy Store has not surrendered its license and continues to provide topless dancing. Although the City has not yet enforced the ordinance against The Candy Store, the City has expressed an intent to do SO. Sammy's filed suit against the City in Alabama state court seeking declaratory and injunctive relief, and the City removed the action to federal district court. The complaint alleges that the ordinance is unenforceable under the doctrine of equitable estoppel and that it violates the free speech clause of the First Amendment, the takings clause of the Fifth Amendment, the equal protection clause, both the substantive and procedural guarantees of the due process clause of the Fourteenth Amendment, and the ex post facto clause. The Candy Store filed suit in federal district court seeking injunctive relief and damages, alleging that the ordinance violates the First Amendment, the Fifth Amendment, and the equal protection clause of the Fourteenth Amendment and that the ordinance is unenforceable under the doctrine of res judicata. [FN3I FN3. The district court denied both Sammy's and The Candy Store's motions for injunctive relief. The two cases were consolidated and all parties II. The Supreme Court has long upheld ordinances such as Mobile's. In California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), the Court approved, as a valid exercise of the general police power, *996 an ordinance prohibiting nude dancing where liquor was sold. The Court found the "conclusion, embodied in these regulations, that certain sexual performances and the dispensing of liquor by the drink ought not to occur at premises that have licenses was not an irrational one.~ Id. at 118, 93 S.Ct. at 397. Since then, many similar ordinances have been approved, including several in this circuit. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, I01 S.Ct. 2599, 69 L.Ed.2d 357 (1981); City of Newport v. Iacobucci, 479 U.S. 1047, 107 S.Ct. 913, 93 L.Ed.2d 862 (1987); Lanier v. City of Newton, 842 F.2d 253 (llth Cir. 1988); Int'l Eateries of America v. Broward County, 941 F.2d 1157, 1162 (llth Cir.1991); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (llth Cir. 1982); Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641,645 (M.D.FIa. 1994), aff'd per curium, 66 F.3d 272 (1 lth Cir. 1995). [1] Although such ordinances regulate expressive conduct, [FN4] the Court has determined that they are content-neutral and should be reviewed under the intermediate level of scrutiny articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L. Ed.2d 672 (1968). Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 2462-63, 115 L.Ed.2d 504 (1991). Under this test, an ordinance is constitutional if: (1) the interest served is within the power of the government; (2) the regulation Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *996) Page 4 furthers that interest; (3) the interest served is unrelated to free expression; and (4) there is no less restrictive alternative. O'Brien at 377, 88 S.Ct. at 1679 (quoted in Barnes, 501 U.S. at 567, 111 S.Ct. at 2461). In Barnes, the Court applied this test in upholding Indiana's prohibition on public nudity as applied to nude dancing. 501 U.S. at 570, 111 S.Ct. at 2462-63. FN4. The Supreme Court has recognized that nude dancing may have some expressive content. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991). Recently, the Supreme Court has reaffirmed the precedential value of LaRue and the Barnes- O'Brien test. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996). Although the Court disavowed the idea expressed in a long line of cases, including LaRue, that the Twenty-first Amendment lends an added presumption in favor of the validity of regulation of otherwise protected speech when it is at the site of the sale of alcoholic be~;erages, the Court observed that "[e]ntirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations." 517 U.S. at 515, 116 S.Ct. at 1514. This power is located in the inherent police power of every state to regulate to promote public decency. Id. The Court also reaffirmed that the Barnes-O'Brien intermediate level of review applies to such ordinances. Id. Under this test, the Court concluded, even after 44 Liquormart, LaRue, "would come out the same way." Id. We are informed by this guidance and agree with the district court that the Barnes-O'Brien test is applicable to the Mobile ordinance. [FN5] FN5. The dissent rejects the application of LaRue and Barnes to the Mobile ordinance because it believes 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), ~eviscerated* the rationale of LaRue. This conclusion is reached despite the fact that the Supreme Court in 44 Liquormart specifically cautions us against just such a view. By expressing its opinion that LaRue would come out the same way, the Court may have hoped to forestall the view that 44 Liquormart is the death knell for ordinances prohibiting nude entertainment in bars. The Court characterized the Twenty-first Amendment analysis of LaRue as merely a "buttress" to the conclusion that the First Amendment did not invalidate California's prohibition of certain grossly sexual exhibitions in premises licensed to serve alcoholic beverages. 517 U.S. at 514-16, 116 S.Ct. at 1514. Although no longer buttressed by the added presumption of the Twenty-first Amendment, the Court was careful to remind us that such ordinances remain protected by the continued vitality of a long line of approving cases, including LaRue and Barnes. [2] The district court held that the Mobile ordinance passes all these tests for a constitutional regulation of expressive conduct: the regulation of public health, safety, and morals is a valid and substantial state interest; the Mobile ordinance's statement of purpose and findings as to the problems created by the combination of alcohol and nude entertainment are sufficient to support the *997 requirement that the regulation further this interest; this interest is unrelated to the suppression of free expression; and the ordinance is narrowly tailored to the perceived problem. [3][4][5] We agree. The preamble to the ordinance finds that nudity and sexually explicit entertainment coupled with alcohol in public places 'encourages undesirable behavior and is not in the interest of public health, safety, and welfare." Thus, the ordinance is aimed at the very type of harm found to create a substantial government interest in LaRue, Barnes, International Eateries and a host of other cases. Furthermore, Mobile has a "reasonable basis" for believing that its ordinance will serve this substantial governmental interest. See Int'l Eateries, 941 F.2d at 1162. The district court located this reasonable basis in the experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well as their own wisdom and common sense. This is sufficient. [FN6] The Supreme Court has itself noted that '[c]ommon sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior." Bellanca, 452 U.S. at 718, 101 S.Ct. at 2601. Finally, the requirement that the dancers partially cover their breasts or cease to serve alcohol is certainly the least restriction possible which would still further the city's interest in controlling the combustible mixture of ale0ho! and nudity. FN6. It is clear that under Barnes, there is no constitutional requirement that a city make particularized findings regarding the adverse effects Copt. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *997) Page 5 of the combination of alcohol and nude entertainment. The Court noted that there were no findings nor any legislative history attached to the Indiana statute, but found the 'statute's purpose of protecting societal order and morality is clear from its text and history." 501 U.S. at 568, 111 S.Ct. at 2461. See also Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641, 645 (M.D.Fla.1994), aff'd per curiam, 66 F.3d 272 (llth Cir. 1995) ("It is now established as a matter of law by Supreme Court jurisprudence culminating in [Barnes ] that secondary effects of proscribed conduct may be taken into consideration by a court evaluating the governmental interests justifying impingement upon free speech rights even when, as in Barnes, there is no legislative history demonstrating that the lawmakers actually considered secondary effects or any other specific factor (such as protecting order and morality) in enacting the challenged law."). [6] The dissent believes that the ordinance does not meet the third requirement of this test, i.e., that the city's interest be unrelated to the suppression of the message of nude dancing. Indeed, the dissent rejects the applicability of the Barnes-O'Brien test itself because it finds the Mobile ordinance to be a "content-based" regulation, subject to a "searching" level of scrutiny. [FN7] FN7. The dissent's argument that the Barnes- O'Brien test is inapposite because the Indiana statute there was content-neutral, whereas Mobile's ordinance is content-based, ignores the claim in Barnes. While Indiana's statute, on its face, prohibits public nudity rather than "expressive conduct," the claim in Barnes was not that the statute was facially invalid, but that it was unconstitutional as applied to nude dancing. There was no claim in Barnes that the statute was unconstitutional because it prohibited nudity simpliciter. The claim was that the statute was unconstitutional because it prohibited nude dancing. The same claim is made against the Mobile ordinance. Characterizing Mobile's ordinance as content-based is a clear departure from prior cases holding that such ordinances are not aimed at the erotic message of nude dancing. For example, in Barnes, the Supreme Court held that Indiana's interest in prohibiting public nude dancing was "unrelated to the suppression of free expression." 501 U.S. at 570, ! I1 S.Ct. at 2463. The Court rejected the argument that merely because nude dancing may have some expressive content, an ordinance prohibiting such dancing must be aimed at the suppression of that content. The purpose of Indiana's statute was not to suppress the erotic message of nude dancing, but to address the evil of public nudity. Id. The Court concluded, '[lit was not the dancing that was prohibited, but simply its being done in the nude." Id. See also Buzzetti v. New York City, 140 F.3d 134 (2d Cir. 1998) (ordinance barring adult businesses from residential zones and certain other areas is a content-neutral and aimed at curbing negative effects of adult businesses on surrounding areas rather than seeking to suppress free expression). We too have rejected the idea that ordinances aimed at nude entertainment are necessarily *998 content- based. In holding such an ordinance to be a valid regulation of the time, place and manner of expressive conduct, we wrote: The only restriction imposed by the ... ordinance is in terms of the place where nude dancing may be presented [i.e., only in places not serving alcohol]. This type of regulation has been recognized as independent of expressive or communicative elements of conduct in other contexts. Grand Faloon Tavern, 670 F.2d at 947(emphasis added). [FN8] FNS. Although the dissent relies heavily on our subsequent opinions in Kmeger v. City of Pensacola, 759 F.2d 851 (llth Cir. 1985) and Leverett v. City of Pinellas Park, 775 F.2d 1536 (1 lth Cir. 1955), neither undermines Grand Faloon's premise that Mobil's ordinance is content-neutral. Both cases not only do not explicitly hold that regulations such as the one at bar are content- regulatory but also do not apply the strict scrutiny appropriate for content regulations. Instead, both Krueger and Leverett require only that cities demonstrate that ordinances such as Mobile's advance "legitimate interests" and struck down nude dancing ordinances because the records in those cases did not show that the ordinances furthered any legitimate government interest unrelated to the suppression of free expression. See Krueger, 759 F.2d at 855- 56; Leverett, 775 F.2d at 1540-41. Similarly, the Mobile ordinance does not seek to ban whatever message is conveyed by nude dancing. It does not even seek to ban nude dancing. In prohibiting nude dancing where liquor is sold, the ordinance restricts only the place or manner of nude dancing without regulating any particular message it might convey. No party disputes that the completely nude dancing which Sammy's, having surrendered Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *998) Page 6 its liquor license, now presents is legal under the ordinance. Nude dancing appears to be allowed everywhere in Mobile, except where alcohol is served. Mobile is attempting only to regulate the sale of alcohol in inappropriate places and it has determined that it is inappropriately sold in places where nude dancing is offered. Therefore, the ordinance is constitutional under the Barues-O'Brien test. Furthermore, the Barnes-O'Brien test applies to this ordinance even if it is not strictly content-neutral. It is true that not all dancing is prohibited in Mobile, only nude dancing where liquor is served. To that extent, the ordinance refers to the "content" of the dancing. The dissent, however, seems to equate this reference to content with content suppression. The dissent says, for example, that the ordinance is an "outright ban targeted solely at conduct protected by the First Amendment" and that, "on its face, it singles out nude entertainment and thus the erotic message conveyed by that conduct." [FN9] FN9. In fact, the dissent apparently rejects the idea that any such ordinance might ever be justified as an attempt to address the undesirable secondary effects of the commingling of alcohol and nudity because such ordinances are 'content-based regulations of expressive behavior.~ For example, the dissent states that the reason we upheld the City of Pinellas Park's ordinance prohibiting nudity in the course of food and drink service in Leverett v. City of Pinellas Park, 775 F.2d 1536 (llth Cir. 1985), was "because the ordinance did not apply to protected expression, such as dancing.~ (emphasis added) To the dissent, any regulation of the place or manner of nude dancing is also necessarily a regulation of the content of such expression. This contention presupposes that all nude dancing conveys the same message, when, in fact, controversy rages both in academia and society at large as to whether nude dancing, films, and other such e~ibitions express messages of liberation or submission. We cannot assume that any regulation addressing nude dancing is a content regulation. The Supreme Court, however, does not equate reference to content with suppression of content. The Court applies the Barnes-O'Brien intermediate level of scrutiny to ordinances which distinguish between nude and clothed entertainment, but which are aimed only at the secondary effects of nude entertainment. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986) (ordinance "by its terms [was] designed to prevent crime, protect city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban lifeN); Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n. 34, 96 S.Ct. 2440, '2453 n. 34, 49 L.Ed.2d 310 ("lilt is [the] secondary effect [of crime and urban deterioration] which these zoning ordinances attempt to avoid, not the dissemination of 'offensive speech' In International Eateries, we too upheld a city ordinance regulating nude dancing aimed *999 at "protecting the quality of urban life from the secondary effects of adult businesses.' 941 F.2d at 1162. Applying Bames-O'Brien scrutiny, we concluded that the ordinance was valid because it furthered a substantial governmental interest in regulating these secondary effects. Id. See also Buzzetfi, 140 F.3d 134. Mobile also defends its ordinance as an attempt to combat the secondary effects of nude performance in a bar atmosphere. Just as the cities in Renton, Young, and International Eateries, it seeks, geographically, to separate adult entertainment establishments from other commercial establishments--in this case, bars--in order to minimize the secondary effects of that combination. The dissent rejects this analogy. It believes these cases are inapposite because the zoning regulations therein were "content-neutral,~ as opposed to the "content-based" Mobile ordinance. The zoning ordinances in Renton, Young, and International Eateries, however, were not content-neutral. They treated adult theaters differently from other theaters. They were content-based to the same extent, and in exactly the same way, as the ordinance in Mobile which treats nude dancing differently from clothed dancing. [FNI0] FNI0. In fact, the clothes required are few--a g- string and pasties will satisfy the statute. Mobile is attempting to regulate the secondary effects of the combination of alcohol and nude dancing without prohibiting either. It does not seek to ban bars or nude dancing. Everyone can still buy a drink and watch nude dancing in Mobile. They cannot, however, do both in the same place. The dissent seems to believe this may violate the rights Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *999) Page 7 of the people of Mobile, but we are unaware of any constitutional right to drink while watching nude dancing. [FN11] Accordingly, the judgment of the district court is AFFIRMED. FNll. The reference in 44 Liquormart to the proposition that government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech--does not apply to this case. In 44 Liquormart, the Rhode Island ordinance banned liquor price advertising. The ordinance, therefore, did not regulate the time, place, or manner, but rather totally suppressed the commercial speech involved. The Court merely reaffirmed that a state may not ban truthful, nonmisleading commercial speech, the Twenty-first Amendment notwithstanding. Mobile has not banned nude dancing. In LaRue, the Court noted that '... the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink." 409 U.S. at 118, 93 S.Ct. at 397. KRAVITCH, Senior Circuit Judge, dissenting: Instead of enacting a generally applicable proscription on public nudity or a general prohibition on nudity in establishments licensed to serve alcohol, the City of Mobile chose to address "the combustible mixture of alcohol and nudity" by singling out traditionally protected forms of expression for criminal sanction. Although I agree with the majority that there is no "constitutional right to drink while watching nude dancing," the Constitution does confer a right to be free from government regulation that prohibits expressive conduct on the basis of content. Because I believe that the majority fundamentally misapprehends the restrictions that the First Amendment imposes upon governmental power to regulate expression, I respectfully dissent. Preliminarily, I take issue with the majority's apparent assumption that because Ordinance 03-003 does not ban nude dancing outright, but rather merely conditions the right to present entertainment involving nudity on the surrender of a liquor license, the Ordinance does not significantly burden the exercise of First Amendment rights. The majority's reasoning ignores the well- established proposition that [e]ven though government is under no obligation to provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit may be conditioned on the surrender of a constitutional right. In Perry v. Sindermann, 408 U.S. 593[, *1000 597], 92 S.Ct. 2694[, 2697], 33 L.Ed.2d 570 (1972), relying on a host of cases applying that principle during the preceding quarter-century, the Court explained that government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 513, 116 S.Ct. 1495, 1513, 134 L. Ed.2d 711 (1996) (internal citation omitted). Although the City may regulate the sale or service of alcohol, it may not condition the conferral of a liquor license--to which appellants concede they are not constitutionally entitled--on the forfeiture of the right to engage in expressive behavior. [FNI] Because the City authorizes the punishment, by fine or imprisonment, of licensees who "exhibit, suffer, allow, permit, engage in, participate in, or [are] connected with" one form of expressive behavior, the challenged ordinance imposes a significant burden upon First Amendment freedoms. [FN2] FNI, The majority concedes that it is well established that "nude dancing ... is expressive conduct within the outer perimeters of the First Amendment .... "Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991). FN2. I disagree with the majority's conclusion that the "reference in 44 Liquormart to the proposition that government may not deny a benefit to a person on a basis that infringes his constitutionally protected interests ... does not apply to this case." The applicability of the unconstitutional conditions doctrine does not turn on whether conferral of the discretionary benefit is conditioned upon completely foregoing the right to engage in expression or instead upon foregoing the right to engage in that expression in certain places or manners or at certain times. Rather, the doctrine applies as long as the governmental actor demands some sacrifice of a constitutional right in exchange for an otherwise discretionary benefit. See FCC v. League of Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *1000) Page 8 L.Ed.2d 278 (1984) (invalidating provision of Public Broadcasting Act that prohibited noncommercial educational television stations that received public funds from endorsing candidates or editorializing); Picketing v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (holding that constitutionally protected speech is impermissible ground for discharge from public employment). In denying appellants' respective motions for preliminary injunctive relief, the district court relied upon "a long line of [Twenty-first Amendment] cases upholding the states' authority to prohibit nude dancing in clubs licensed to sell alcohol." [FN3] After the district court entered the preliminary orders, but before the court ruled on the parties' motions for summary judgment, the Supreme Court decided 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L. Ed.2d 711 (1996), which dispelled definitively the notion that the Twenty-first Amendment 'qualiqies] the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment." Id. at 516, 116 S.Ct. at 1515. The district court recognized that 44 Liquormart foreclosed the argument that the Twenty-first Amendment "provides an added presumption in favor of validity of state regulation in the area of topless dancing," [FN4] but nevertheless concluded that the case "provided us with the roadmap for upholding" such state regulation. [FN5] In 44 Liquormart, the Court cited Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), for the proposition that states enjoy the power "to restrict ... 'bacchanalian revelries' ... regardless of whether alcoholic beverages are involved." 44 Liquormart, at 515, 116 S.Ct. at 1514 (citing Barnes and quoting California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972)). The district court interpreted this reference in 44 Liquormart to mean that Barnes controls all First Amendment challenges to ordinances regulating nudity. FN3. Summary Judgment Order ("Order") at 6. FN4. Order at 8 (internal quotations omitted). FN5. Id. Following the district court's lead, the majority, although conceding that 44 Liquormart requires application of First Amendment scrutiny to the ordinance in question, suggests that 44 Liquormart confirms the City's power to regulate nude dancing in establishments licensed to sell alcohol. The majority concludes that the Court's treatment in 44 Liquormart of earlier First *1001 Amendment cases involving state regulation of alcohol and nude dancing provides support for the conclusion that Ordinance 03-003 does not offend the First Amendment. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), one of those earlier cases, the Court upheld a regulation of nude dancing in establishments serving alcohol on the basis of the authority conferred upon states by the Twenty-first Amendment. In 44 Liquormart, the Court, "[w]ithout questioning the holding in LaRue, ... disavow[ed] its reasoning insofar as it relied on the Twenty-first Amendment.N 517 U.S. at 516, 116 S.Ct. at 1514. Because the Court in 44 Liquormart stated in dicta that LaRue would have been resolved the same way had the Court not relied erroneously upon the Twenty-first Amendment, see 44 Liquormart, at 515, 116 S.Ct. at 1514 (~We are now persuaded that the Court's analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty-first Amendment."), the majority concludes that Ordinance 03-003 likewise should survive First Amendment scrutiny. This case presents this circuit's first occasion to address the impact of 44 Liquormart on state power to regulate nude dancing and the continued vitality of LaRue. In LaRue, the Court addressed the constitutionality of California Department of Alcoholic Beverage Control regulations that prohibited various forms of sexual conduct in licensed establishments. The Court, noting that "[t]he state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink," LaRue, 409 U.S. at 114, 93 S.Ct. at 395, reviewed the regulations under a standard considerably more deferential than it ordinarily reviews prohibitions targeted at protected expressive behavior. In light of what the Court believed to be Nthe added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires,~ id. at 118-19, 93 S.Ct. at Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *1001) Page 9 397, the Court decided that the Department's regulations were not "irrational" or "unreasonable," id. at 116, 93 S.Ct. at 396. The Court's discussion of the state's authority to regulate conduct with a communicative element, however, is hard to square with later decisions, The Court in LaRue stated: While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink. Id. at 118, 93 S.Ct. at 397. Precedent now makes clear that a state cannot condition a benefit on a forfeiture of First Amendment rights, see 44 Liquormart, at 512-14, 116 S.Ct. at 1513, or regulate the time, place, or manner of protected expression with content-based prohibitions, see Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) ("[T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech .... ' " (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984))). Although the 44 Liquormart Court, in dicta, did not disturb the holding of LaRue, the Court eviscerated the basis for that decision. The 44 Liquormart Court squarely addressed whether the Twenty-first Amendment "qualiqies] the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment," 517 U.S. at 516, 116 S.Ct. at 1515, but it did not have before it, as did the Court in LaRue and as does our court now, a regulation prohibiting nude dancing in establishments with liquor licenses. The Court therefore had no occasion to evalUate closely the constitutionality of such an ordinance. [FN6] '1002 Unlike the majority, I do not believe that the dicta in 44 Liquormart compels us to uphold the ordinance challenged here. FN6. N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), and Newport v. lacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L. Ed.2d 334 (1986), cited by the majority, likewise cannot provide support for the regulatory authority the City seeks to exercise. In Bellanca, the Court upheld a statute prohibiting nude dancing in establishments licensed to sell liquor. The sole basis of the Court's holding, however, was the power that it believed the Twenty-first Amendment conferred upon states to reg.ulate alcohol. The Court concluded that '[j]udged by the standards announced in LaRue and Doran Iv. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), which followed LaRue ], the statute at issue here is not unconstitutional." 452 U.S. at 717, 101 S.Ct. at 2601. Relying upon a greater-includes- the- lesser rationale that has since been discredited, see 44 Liquormart, at 510~12, 116 S.Ct. at 1512; infra Section I.C, at note 7, the Court reasoned that the ~State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs," Bellanca, 452 U.S. at 717, 101 S.Ct. at 2601, and that "[w]hatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment," id. at 718, 101 S.Ct. at 2602. Bellanca thus rests upon a jurisprudential underpinning no longer followed by the Court. Likewise, the Court in Iacobucci, following LaRue and Bellaoca, upheld an ordinance prohibiting "performing nude or nearly nude" in establishments licensed to sell liquor. 479 U.S. at 93 n. 1, 107 S.Ct. at 384 n. 1. The sole rationale advanced by the Court in upholding the regulation was the power that the Court believed the Twenty-first Amendment conferred upon states to regulate alcohol. See id. at 97, 107 S.Ct. at 386 (' 'Given the added presumption in favor of the validity of the ... regulation in this area that the Twenty-first Amendment requires,' it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude.") (quoting LaRue, 409 U.S. at 118-19, 93 S.Ct. at 397). After 44 Liquormart, Bellanca and Iacobucci appear to lack precedential value. Co The majority reads 44 Liquormart to require this court to review the challenged ordinance under the intermediate scrutiny applied in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). O'Brien scrutiny is appropriate when a generally applicable regulation not directed at the communicative elements of conduct nevertheless infringes rights of free expression. See O'Brien, 391 U.S. at 376-77, 88 S.Ct. at 1678-79. O'Brien scrutiny involves the application of a four-part test: [Al government regulation is sufficiently justified if it is within the constitutional power of the Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *1002) Page 10 Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377, 88 S.Ct. at 1679. The majority concludes that the Supreme Court's decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), which reviewed under O'Brien scrutiny a challenge to Indiana's prohibition on public nudity as applied to nude dancing, controls the case sub judice and accordingly that this court should apply the O'Brien four-part test. In Barnes, the Court addressed the constitutionality of Indiana's "prohibition against complete nudity in public places," 501 U.S. at 564, 111 S.Ct. at 2459, as applied to establishments that provide totally nude dancing as entertainment. The Court, although recognizing that nude dancing "is expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so," id. at 566, 111 S.Ct. at 2460, concluded that the law was valid because it was supported by a state interest in protecting order and morality, was not targeted at "the erotic message conveyed by the dancers," and imposed requirements no greater than those necessary to serve the state interest, id. at 567-572, 111 S.Ct. at 2461-63. Barnes, however, does not control the case sub judice. The statute challenged in Barnes, although using the identical definition of 'nudity~ as the ordinance challenged here, did not single out one form of expression for disfavored treatment. The Indiana statute provided: A person who knowingly or intentionally, in a public place: (1) engages in sexual,intercourse; (2) engages in deviate sexual conduct; (3) appears in a state of nudity; or (4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. Ind.Code § 35-45-4-1 (1988), quoted in Barnes, 501 U.S. at 569 n. 2, 111 S.Ct. at '1003 2462 n. 2. In contrast, the ordinance challenged here makes it unlawful "knowingly to exhibit, suffer, allow, permit, engage in, participate in, or be connected with, any motion picture, show, performance, or other presentation upon the licensed premises, which, in whole or in part, depicts nudity or sexual conduct or any simulation thereof." City of Mobile Ord. 03-003 (emphasis added). Unlike the statute upheld in Barnes, which focused on nudity simpliciter and not on forms of expressive conduct or the messages they convey, the City of Mobile ordinance applies only to forms of conduct that are inherently- -and traditionally--communicative: motion pictures, shows, performances, and 'other presentation[s].' CL Int'l Eateries of Am. v. Broward County, 941 F.2d 1157, 1161 (llth Cir.1991) (noting distinction between generally applicable, content-neutral regulations and those prohibiting conduct "precisely because of its communicative attributes') (quoting Barnes, 501 U.S. at 577, 111 S.Ct. at 2466 (Scalia, J., concurring in the judgment) (emphasis omitted)), cert. denied, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). A regulation that by its terms prohibits only traditional forms of expression cannot be said to be unrelated 'to the suppression of free expression within the meaning of O'Brien ... [and thus is] outside of O'Brien's test altogether.' Texas v. Johnson, 491 U.S. 397, 410, 109 S.Ct. 2533, 2543, 105 L.Ed.2d 342 (1989). [FN7] FN7. En route to concluding that O'Brien intermediate scrutiny controls the case before us, the majority argues that the as-applied challenge in Barnes was simply a claim that the Indiana statute "was unconstitutional because it prohibited nude dancing' and thus that the claim in Barnes was the 'same claim [that] is made against the Mobile ordinance.* With all due respect, I believe that the majority misapprehends the difference between an as-applied challenge to a content-neutral regulation and a facial challenge to a content-based regulation. The statute challenged in Barnes did not by its terms specifically proscribe nude dancing, but rather prohibited ali public nudity--and thereby incidentally prohibited some otherwise lawful expression. That the claim raised by the respondents in that case sounded in the First Amendment does not mean that their claim was identical to the one made by appellants in the case before us. Courts long have distinguished between content- based regulations targeted at expression, on the one hand, and generally applicable, content-neutral regulations that incidentally burden expressive freedoms, on the other. See generally L. Tribe, American Constitutional Law §§ 12-2, 12-3 (1988). Simply because it is within governmental power to accomplish a particular end, such as a categorical ban on nudity that a fortiori includes a more specific ban on nude dancing, does not mean that any means Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, '1003) Page 11 chosen will Satisfy the requirements of the First Amendment. Rather, the First Amendment often requires courts to invalidate regulations that accomplish ends that lawfully could be achieved by different means. Compare Texas v. Johnson, 491 U.S. 397, 406-410, 109 S.Ct. 2533, 2540- 2543, 105 L.Ed.2d 342 (1989) (invalidating state law that prohibited "deSeCration of venerated object[s]," because by singling out symbolic objects for protection, the state's asserted interest was implicated only when "a person's treatment of the flag communicates some message"), with O'Brien, 391 U.S. at 370, 88 S.Ct. at 1675 (upholding conviction for burning draft card under statute that proscribed "knowingly destroy[lng]" or "knowingly mutilat[ing]" a Selective Service Registration certificate). Indeed, the First Amendment stands in part for the proposition that the greater power--in this case, the authority to regulate nudity--does not always include the lesser power--in this case, the authority to ban solely expressive conduct involving nudity. See 44 Liquormart, at 512, 116 S.Ct. at 1512 (rejecting greater-includes-the-lesser reading of the First Amendment and stating that 'It]he text of the First Amendment makes clear that the Constitution presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct'). This court often has distinguished regulations proscribing nudi,ty per se, including general proscriptions on 'nudity in particular fora, from regulations targeted at expressive conduct. In Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (llth Cir. 1982), we upheld a city ordinance banning nudity on premises where alcohol was served. The ordinance, unlike the one before us now, did not single out nudity in "any motion picture, show, performance, or other presentation," but rather simply banned all nudity in establishments offering alcohol for sale. See id. at 944 n. 2. Because the regulation thus was not targeted at traditionally expressive behavior, we applied O'Brien scrutiny and upheld the ban. In Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985), however, we invalidated a ban almost identical to that in Grand Faloon because, unlike the ban in Grand Faloon, which was supported by a legitimate '1004 and substantial government interest in regulating activities likely to lead to breaches of the peace, the record demonstrated that the city's motive was to restrict expression. 759 F.2d at 855-56. Both cases addressed regulations that facially banned all nudity in establishments licensed to serve alcohol, rather than solely nudity in the course of traditionally expressive forms of conduct. See Krueger, 759 F.2d at 853-54 n. 3; Grand Faloon, 670 F.2d at 944 n. 2. Ordinance 03-003 on its face singles out nude entertainment and thus the ,"erotic message conveyed" by that conduct. Barnes, 501 U.S. at 570, 111 S.Ct. at 2463. Ordinance 03-003 would not by its terms apply, for example, to a nude waitress serving drinks at a licensed establishment or to a patron entering such a club nude, whereas it would apply to a production of "Hair" or "Equns"-- or any other artistic production that includes nudity, however minor or incidental-at a club licensed to sell alcohol. Cf. Barnes, 501 U.S. at 585 n. 2, 111 S.Ct. at 2470 n. 2 (Sourer, J., concurring in the judgment) ("It is difficult to see ... how the enforcement of Indiana's statute against nudity in a production of 'Hair' or 'Equus' somewhere other than an 'adult' theater would further the State's interest in avoiding harmful secondary effects .... '). Instead of targeting nudity per se, which clearly is a permissible exercise of municipal or state authority, see Barnes, supra, the Mobile ordinance targets only conduct with communicative elements. [FNS] Because courts consistently have reviewed such contentbased restrictions with a level of scrutiny more searching than O'Brien scrutiny, which we have applied to generally applicable, content-neutral regulations, the majority is incorrect to conclude, simply because the claim before the court is a challenge to a nudity ordinance, that Barnes's O'Brien scrutiny is appropriate in this case. [FN9] FNS. The majority suggests that '[w]e cannot assume that any regulation addressing nude dancing is a content regulation,' because 'controversy rages both in academia and society at large' over what precise message nude dancing conveys. I would have thought, however, that an ordinance targeted at communicative activities that express multiple messages is as invidious as, if not more so than, an ordinance that targets merely one message. One need only consider a simple example to see how subversive of basic First Amendment values the majority's reasoning is: an ordinance banning all dancing would suppress a wide array of messages that could be conveyed by dancing, yet, according to the majority, that regulation would be permissible because 'we cannot assume' that it targets any one particular message. FN9. Moreover, contrary to the majority's unsupported assertion, the Court in 44 Liquormart Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite ns: 140 F.3d 993, '1004) Page 12 did not suggest that Barnes's O'Brien scrutiny should apply in all cases involving ordinances regulating nudity. Instead, the Court merely cited Barnes to support the statement that "the Court has recognized that the States' inherent police powers provide ample authority to restrict the kind of 'bacchanalian revelries' described in the LaRue opinion regardless of whether alcoholic beverages are involved." 44 Liquormart, at 515, 116 S.Ct. at 1514. I doubt that the Court, in announcing a decision that restricted governmental power to regulate speech, meant to suggest that courts now should evaluate content- based regulations under the more-deferential O'Brien standard of review. Instead, the Court's citation to Barnes merely confirms that states and municipalities presumptively may regulate nudity with generally applicable, content-neutral ordinances-ordinances wholly unlike that passed by the City in this case. Because I believe that the majority applies the wrong level of scrutiny, I address the City's argument that time, place, and manner scrutiny-- another form of intermediate scrutiny--is applicable in this case. In my view, in determining the appropriate level of scrutiny, this court should look to the character of the regulation. If the regulation is content-based--because it singles out one form of expression for disfavored treatment--then searching scrutiny is appropriate. See Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). If, on the other hand, the regulation is content-neutral-because it is justified not by "reference to the content of the regulated speech," Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L. Ed.2d 346 (1976), but rather to the "secondary effects" of that speech, see Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986)--then less-searching time, place, and '1005 manner scrutiny may be appropriate, see id. at 46, 106 S.Ct. at 928. The City contends, and the majority agrees, that the Ordinance was: not promulgated because of a disagreement with the message conveyed by nude dancing, but rather was an attempt to regulate the secondary effects of nude dancing. The City and the majority rely :upon Renton, supra, Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and lnt'l Eateries of Am. v. Broward County, 941 F.2d 1157, 1161 (I lth Cir. 1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). In Renton and Young, the Court upheld zoning ordinances restricting the permissible locations for adult theaters that presented nude dancing. Although the regulations challenged in those cases "treat[ed] theaters that specialize in adult films differently from other kinds of theaters," Renton, 475 U.S. at 47, 106 S.Ct. at 929, and thus at first blush seemed to be content-based, the Court in each case concluded that the regulations were justified without reference to the content of the regulated speech because they were "aimed not at the content of the films .... but rather at the secondary effects of such theaters on the surrounding community," id. (emphasis in original); accord Young, 427 U.S. at 71 n. 34, 96 S.Ct. at 2453 n. 34. In Renton, for example, the Court upheld the district court's conclusion that the "city's pursuit of its zoning interests here was unrelated to the suppression of free expression" because the Court believed that the ordinance "by its terms [was] designed to prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life." 475 U.S. at 48, 106 S.Ct. at 929; accord Young, 427 U.S. at 71 n. 34, 96 S.Ct. at 2453 n. 34 (noting that "lilt is [the] secondary effect [of crime and urban deterioration] which these zoning ordinances attempt to avoid, not the dissemination of 'offensive' speech"). In International Eateries, this court applied Renton to uphold a local zoning ordinance restricting the permissible locations for clubs presenting non- obscene nude dancing. Applying time, place, and manner scrutiny, this court concluded that the challenged ordinance: (1) furthered a substantial governmental interest in "protecting the quality of urban life from the secondary effects of adult businesses," 941 F.2d at 1162; (2) was narrowly tailored to further that interest because it focused only on those businesses likely to cause secondary effects, id. at 1163; and (3) allowed reasonable alternative avenues of communication because there were "sufficient alternative locations" where the theaters could lawfully operate, id. at 1165. [FNIO] FNI0. We applied the Renton secondary-effects analysis in International Eateries because at issue was the validity of a zoning ordinance similar to that Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, *1005) Page 13 considered in Renton and Young. See 941 F.2d at 1161. Distinguishing Barnes, we concluded that O'Brien scrutiny was inappropriate because the regulation "single[d] out nude dancing rather than broadly prohibiting all public nudity." Id. The significant difference between the ordinance challenged in International Eateries and the one challenged here, however, is that the former was a zoning ordinance, whereas the one in the case before us is a direct regulation of expressive conduct. [FNll] Closely read, Renton, Young, and International Eateries apply only to zoning ordinances. See Renton, 475 U.S. at 49, 106 S.Ct. at 929-30 ('[Z]oning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to 'content-neutral' time, place, and manner regulations.") (emphasis added); Young, 427 U.S. at 71, 96 S.Ct. at 2453 ('[W]hat is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited .... "); Int'l Eateries, 941 F.2d at 1159 C[T]he Supreme Court has held that under some circumstances cities may enact zoning ordinances that require adult movie theatres to locate only in certain areas, provided that the purpose of the regulation is to control the '1006 secondary effects of these businesses.") (emphasis added) (internal quotation omitted); see also Buzzetti v. City of New York, --- F.3d .... , No. 97-7585 (2d Cir. March 20, 1998) (upholding city's "Zoning Amendment," which "does not forbid the operation of any category of business [but i]nstead ... restricts the areas in which certain sexually- oriented businesses may operate"). Indeed, zoning regulations are amenable to time, place, and manner scrutiny at least in part because, although they restrict the locations available for a given use, they generally leave some areas open for the disfavored use. See Renton, 475 U.S. at 54, 106 S.Ct. at 932 ("[The City has] sought to make some areas available for adult theaters and their pa~trons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning."); Young, 427 U.S. at 71 n. 35, 96 S.Ct. at 2453 n. 35. FNII. Contrary to the majority's suggestion, Ordinance 03-003 does not seek "geographically [ ] to separate adult entertainment establishments from other commercial establishments.' (Emphasis added). Instead, the Ordinance seeks categorically to ban nude dancing in establishments-- wherever they may be located--that serve alcohol. Unlike the zoning ordinances upheld in Young, Renton, and International Eateries, which preserved for adult entertainment "ample, accessible real estate," Renton, 475 U.S. at 53, 106 S.Ct. at 932, the City of Mobile's regulation prohibits establishments that wish to serve alcohol and present nude dancing from operating anywhere. Of course, as the City and the majority point out, appellants are free to provide nude dancing at their current locations as long as they are willing to forego the privilege of serving alcohol. As already stated, however, see supra Section I.A, this argument ignores the well-established proposition that government may not condition the "conferral of Iai benefit ... on the surrender of a constitutional right." 44 Liquormart, at 513, 116 S.Ct. at 1513. Although the Supreme Court and this circuit have upheld zoning regulations that, as measures of social policy, have dissipated or segregated the effects of adult theaters, neither has, without relying on a now- discredited view of the Twenty- first Amendment, upheld an outright ban targeted solely at conduct protected by the First Amendment. [FNI2] Because I conclude that the secondary-effects exception is inapplicable in this case, I believe that this court should analyze Ordinance 03-003 as a content-based restriction. FNI2. In Barnes, Justice Sourer argued in his concurrence that Indiana could justify application of a generally applicable proscription of public nudity to nude dancing because the state has a legitimate and substantial government interest in combatting the secondary effects of adult entertainment. His concurrence, however, simply sought to justify the burden on First Amendment freedoms imposed by application of a content- neutral statute to expressive behavior--a result contemplated by O'Brien--and did not suggest that a prohibition, other than a zoning regulation, targeted at expressive behavior could be justified by reference to the secondary effects of the targeted behavior. Likewise, in Cafe 207, Inc. v. St. Johns County, 66 F.3d 272 (llth Cir. 1995), aff'g 856 F.Supp. 641 (M.D.Fla. 1994), this court affirmed the district court's conclusion that the governmental-interest prong of the O'Brien test was satisfied because, inter alia, the regulation combatted the secondary effects of nudity in adult entertainment. 856 F.Supp. at 644. Like the statute in Barnes, the ordinance challenged in Cafe 207 was a generally applicable, and not a content-based, prohibition on Copt. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, '1006) public nudity. The majority's reliance on Cafe 207 thus is misplaced. Eo My conclusion that Ordinance 03-003 is a content- based restriction on protected expression that must be evaluated under searching judicial scrutiny finds strong support in case law. This court has distinguished between regulations of nudity that permissibly (and incidentally) burden protected expression and regulations that impermissibly target protected expression for sanction. In Leverett v. City of Pinellas Park, 775 F.2d 1536 (llth Cir. 1985), this court upheld against a First Amendment challenge an ordinance prohibiting nudity in the course of food and drink service because the ordinance did not apply to protected expression, such as dancing. See id. at 1540. The court struck down a companion ordinance that prohibited "nude or semi-nude entertainment in any commercial establishment," id. at 1537 (emphasis added), however, because, as a direct regulation of conduct protected by the First Amendment, the court '1007 subjected it to 'the stricter standard typically used to review an infringement on a protected liberty interest justified solely under the government's police power," id. at 1540 (citing Krueger v. City of Pensacola, 759 F.2d 851 (llth Cir.1985)). The court noted that in order to justify a content-based'regulation of protected expression, the city had an obligation to "come forth with more than simply an articulation of some legitimate interest that the city could have had to justify its prohibition." Leverett, 775 F.2d at 1540 (internal quotations omitted). [FN13] Although the conclusory language contained in the ordinances that "competitive commercial exploitation of nudity is adverse to the public health, peace, morals and good order, and [that] it is in the best interest of the public health, safety and convenience to/restrict such nudity .... "id. at 1539, was sufficient to justify the ordinance generally proscribing nudity in the course of food service because that ordinance did not "on its face govern activity protected by the First Amendment," id. at 1540, the language could not save the ordinance prohibiting nude entertainment. FNI3. See Leverett, 775 F.2d at 1540 ("When a fundamental interest such as freedom of expression is regulated, the City must also show that the legitimate concern it articulates has 'more than merely speculative factual grounds, and that it was Page 14 actually a motivating factor in the passage of the legislation.' ") (quoting Krueger v. City of Pensacola, 759 F.2d 851,855 (1 lth Cir. 1985)). The ordinance invalidated in Leverett, which was targeted solely at expressive conduct, is indistinguishable from the one challenged here. See also BSA, Inc. v. King County, 804 F.2d 1104, 1107-08 (gth Cir. 1986) (enjoining operation of statute explicitly banning "common barroom type topless dancing" because the "[p]rohibition of a category of protected expression, including that which is sexually explicit, can be upheld only where it furthers a substantial governmental interest unrelated to suppression of free expression ... and where the governmental interest could not be served by a means less intrusive on First Amendment activity"). I am convinced that this court should review Ordinance 03-003, as well, under "the stricter standard typically used to review an infringement on a protected liberty interest justified solely under the government's police power." Leverett, 775 F.2d at 1540. In my view, the City has not satisfied this stricter standard. To survive First Amendment scrutiny, the City must, at a minimum, demonstrate that its interest in regulating the conduct at issue in this case 'is based on something other than a desire to censor the communication because of the community's dislike of its content.' Krueger, 759 F.2d at 854. The City argues that it acted to address the adverse secondary effects of nude dancing combined with alcohol consumption and that the preamble to Ordinance 03-003 makes clear that the City was not targeting the message of the expressive conduct, but rather was combatting the secondary effects of that behavior. [FNI4] The interests stated in the Ordinance's preamble--discouraging 'undesirable behavior' and avoiding 'disturbances'--are, of course, legitimate governmental interests. As in Leverett, however, 'the City has made no showing as to the factual basis for its articulated concerns and the motivation for passage of [the ordinance] beyond the conclusions stated in the ordinance itself,' 775 F.2d at 1540, a showing that is insufficient to "justify its infringement on protected expression,' id. The majority concludes that the City permissibly relied upon other cities' findings that the commingling of alcohol and nudity produces undesirable effects. Although the majority is correct Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 140 F.3d 993 (Cite as: 140 F.3d 993, '1007) that "[qbe First Amendment does not require a city, before enacting [a zoning ] ordinance, to conduct new studies or produce evidence independent of that already generated '1008 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," Renton; 475 U.S. at 51, 106 S.Ct. at 931 (emphasis added), [FN15] this court consistently has required a significantly stronger showing to justify content-based regulations of expressive behavior outside of the zoning context, see, e.g., Leverett, 775 F.2d at 1540. The mere assertion, unsupported by any legislative findings, that a city seeks to address the undesirable secondary effects of a disfavored activity is insufficient to justify a regulation that by its terms prohibits only conduct that is protected by the First Amendment. FNI4. Indeed, an argument by the City that it was worried about the effects of adult entertainment alone, as was the city in Renton, 475 U.S. at 50, 106 S.Ct. at 930, rather than the effects of the entertainment combined with alcohol consumption, would be unconvincing because the City still permits nude dancing; Sammy's has been presenting nude dancing (without alcohol) since this litigation began, yet has not violated Ordinance 03-003. FNI5. Accord lnt'l Eateries, 941 F.2d at 1162 (holding that a city "need not conduct its own studies' in Order to "have a reasonable basis for its belief that the harm to be protected against [by the zoning ordinhnce] in fact exists"). Likewise, the proof requirements for regulations that are not targeted at expression may be relaxed. See Barnes, 501 U.S. at 584-85, 111 S.Ct. at 2470 {Sonter, J., concurring in the judgmen0 C[L]egislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects .... I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case.'). Bu,t cf. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135-36 (6th Cir.1994) (holding that "because the City has failed to demonstrate a link between nudity in non- adult entertainment and secondary effects, we do agree with the district court that the Akron ordinance must be struck down as facially unconstitutional under the First Amendment overbreadth doctrine'; stating that 'It]he ordinance makes no attempt to regulate only those expressive activities associated with harmful secondary effects and includes no limiting provisions'). Contrary to the majority's suggestion however, this court never has allowed a state or municipality to enact a Page 15 content-based restriction on expression based upon a mere showing that other localities have identified an evil to be addressed. Even if the City had made fmdings, moreover, I have serious doubts that the City's interest in discouraging undesirable behavior and avoiding disturbances would be sufficient to justify Ordinance 03-003's content-based restriction. Furthermore, given the availability of alternative regulatory means that could accomplish the City's avowed goals without singling out protected expression for sanction, see infra Section II, in my view Ordinance 03-003 could not satisfy the means scrutiny that the First Amendment requires. I therefore would hold that the district court erred in granting summary judgment in favor of the City on appellants' First Amendment claim and that the district court should have granted summary judgment in favor of appellants on their facial challenge to Ordinance 03-003. II. This court does not have before it a generally applicable proscription on public nudity, see, e.g., Barnes, 501 U.S. at 569 n. 2, 111 S.Ct. at 2462 n. 2, or a general prohibition on nudity in establishments licensed to serve alcohol that is not limited solely to expressive conduct, see, e.g., Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 944 n. 2 (llth Cir. 1982). Presumably, either of those approaches would have accomplished the City's avowed goals and survived First Amendment scrutiny. [FN16] Instead, the City of Mobile chose to address the problems associated with 'nudity, sexual conduct [,] and [the] depiction thereof[ ] coupled with alcohol in public places,' City of Mobile Ord. 03-003, by subjecting to criminal sanction only activity clearly recognized to be within the protection of the First Amendment. Because I believe that the First Amendment prohibits the City of Mobile from enacting such a regulation and that the majority has misapplied long-established First Amendment principles, I respectfully DISSENT. FNI6. Of course, these approaches could fail First Amendment scrutiny if they were merely intended to mask a governmental motive to suppress protected expression. See Krueger v. City of Pensacola, 759 F.2d 851 (1 lth Cir. 1985). END OF DOCUMENT Copr. © West 1998 No Claim to Orig. U.S. Govt. Works 911 F.2d 579, Geaneas v. Willets, (C.A.11 (Fla.) 1990) Page 1 *579 911 F.2d 579 Chris GEANEAS, Pink Pussycat, Inc., d/b/a Red Garter Club, Del Percio, Inc., d/b/a Shingle Shack, Function Junction, Inc., Dawn Boido, Denise Del Pinto, Leslie Grier, Plaintiffs-Appellants, Kinzey Enterprises, Inc., d/b/a Oyster Pub, Linnie Shiftlett, Lois Young, Plaintiffs, V. Charles W. WlLLETS, The City of Daytona Beach, Defendants-Appellees, John M. Power, Lawrence Kelly, Defendants. No. 89-3308. United States Court of Appeals, Eleventh Circuit. Sept. I0, 1990. Alcoholic beverage establishments challenged constitutionality of municipal ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic beverages. The United States District Court for the Middle District of Florida, Orlando Division, No. 83-344-CIV-ORL-19, Patricia C. Fawsett, J., 715 F.Supp. 334, dismissed case. Appeal was taken. The Court of Appeals, Tjoflat, Chief Judge, held that: (1) trial court did not err in analyzing ordinance under Twenty-First Amendment rather than First Amendment; (2) ordinance was not void for vagueness; and (3) challenge to ordinance on grounds of selective enforcement was inappropriate basis for relief sought. Affirmed. 1. CONSTITUTIONAL LAW k90.4(5) 92 .... 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of,the Press 92k90.4 Obscenity and Pornography 92k90.4(5) Bars, nightclubs, and restaurants. C.A. 11 (Fla.) 1990. District court did not err in analyzing a city ordinance banning exposure of certain body parts in establishments dealing in alcoholic beverages under Twenty-First Amendment rather than First Amendment, in reliance upon precedents holding that state's broad power under Twenty-First Amendment to regulate alcohol outweighed any First Amendment interest in nude dancing, even though leading United States Supreme Court decision involved ordinance dealing with establishments with license to sell liquor rather than establishments "dealing in" liquor; all that was required was a nexus between body exposure and alcohol. U.S.C.A. Const. Amends. 1, 14, 21. 2. CONSTITUTIONAL LAW k42.1(1) 92 .... 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k41 Persons Entitled to Raise Constitutional Questions 92k42.1 Particular Statutes or Actions Attacked 92k42.1(1) In general. C.A. I1 (Fla.) 1990. Bar owners and employees lacked standing to challenge city ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic beverages, on the grounds that the ordinance was overbroadly drafted and might conceivably apply to establishments not providing alcohol; challengers were within scope of ordinance as drafted. U.S.C.A. Const.Amends. 14, 21. 3. INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1990. Trial court was not precluded from applying Twenty-First Amendment analysis to ordinance barring exposure of certain body parts in establishments dealing in liquor, rather than First Amendment, on grounds that Twenty-First Amendment applied only to establishments carrying on interstate liquor business. U.S.C.A. Const. Amends. 1, 14, 21. 4. CONSTITUTIONAL LAW k42(2) 92 .... 921I Construction, Operation, and Enforcement of Constitutional Provisions 92k41 Persons Entitled to Raise Constitutional Questions 92k42 In General 92k42(2) Injury to party complaining. C.A. I1 (Fla.) 1990. Bar owners and employees were precluded from challenging city ordinance prohibiting exposure of certain body parts in establishments dealing in alcohol, on grounds that ordinance was overbroad Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. I1 (Fla.) 1990) Page 2 because it could be interpreted to apply to scantly clad bar patrons; bar owners and employees could not assert constitutional rights on behalf of patrons. U.S.C.A. Const. Amend. 14. 5. INTOXICATING LIQUORS k15 223 .... 223II Constitutionality of Acts and Ordinances 223k 15 Licensing and regulation. C.A. 11 (Fla.) 1990. City ordinance banning exposure of certain body parts in establishments dealing in liquor was not unconstitutionally vague for failing to define permitted amount of female breast which could be exposed; definition had been supplied by Florida Supreme Court case prohibiting display of any part of breast below top of areola. U.S.C.A. Const. Amend. 14. 6. INTOXICATING LIQUORS k15 223 .... 223II Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1990. Municipal ordinance prohibiting exposure of certain body parts in establishments dealing in liquor was not unconstitutionally vague because it lacked a definition of the area of buttocks which could not be exposed; although there was no Florida Supreme Court decision defining impermissible exposure, a federal district court had made a precise and detailed definition. U.S.C.A. Const. Amend. 14. 7. DECLARATORY JUDGMENT k128 ll8A .... 118AII Subjects of Declaratory Relief 118AII(F) Ordinances 118Ak128 Ordinances in general. C.A. 11 (Fla.) 1990. Claim of selective enforcement of municipal ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic b~verages was an inappropriate basis for declaratory judgment that city's selective enforcement was unconstitutional and an injunction preventing city from selectively enforcing ordinance against owners or managers of bars providing nude dancing; even if injunction had been granted, ordinance would still apply to those challenging it in the event city enforced the ordinance nonselectively. U.S.C.A. Const. Amend. 14. *580 Eric A. Latinsky, Daytona Beach, Fla., for plaintiffs-appellants. Reginald E. Moore, Frank B. Gummey, III, Robert G. Brown, Marie Hartman, Daytona Beach, Fla., for defendants-appellees. Appeal from the United States, District Court for the Middle District of Florida. Before TJOFLAT, Chief Judge, TUTTLE, and RONEY (FN*), Senior Circuit Judges. TJOFLAT, Chief Judge: The plaintiffs in this case own or manage bars providing nude dancing, or work in those establishments as nude dancers or bartenders. They brought suit in federal district court under 42 U.S.C. Sec. 1983 (1988) claiming that a Daytona Beach ordinance, which prohibits exposure of certain body parts in establishments dealing in alcohol, violated their rights under the first and fourteenth amendments. The district court granted partial summary judgment for the defendants and, following a bench trial on the remaining issues, dismissed the plaintiffs' case. The plaintiffs appeal, and we affirm. We also hold that the plaintiffs' appeal is frivolous under Rule 38, Fed. R.App. P. 38. In 1981, the City of Daytona Beach enacted an ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic beverages. (FNI) Daytona '581 Beach police then began enforcing the ordinance. They arrested dancers, including two plaintiffs in this case, at several "topless bars" for dancing partially nude in violation of the ordinance. They arrested bartenders and managers, including plaintiffs in this case, who were working at establishments when nude-dancing arrests were made. They cited owners, including plaintiffs in this case, for permitting nude dancing in their establishments, and they ordered the owner of one establishment, a plaintiff here as well, to remove graphic photographs from his walls and to stop selling calendars featuring pictures of his exotic dancers. In the prosecutions that followed, the state courts issued various interpretations of the ordinance. In the case of one of the dancers involved in the present action, the county court dismissed the Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. 11 (Fla.) 1990) Page charges against her, (FN2) holding that the ordinance's prohibition of exposed female breasts was overbroad and that the ordinance proscribed exposure of only the entire buttocks, and nothing less. In 1984, the state district court of appeal held the ordinance unconstitutional on grounds of vagueness and overbreadth. See Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla. Dist. Ct. App. 1984). A year later, the Florida Supreme Court reversed that court and upheld the ordinance as constitutional. See City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985). The supreme court's decision in Del Percio. however, specifically addressed only the ordinance's prohibition on exposed breasts, which it defined as exposure of the breast below an imaginary line drawn across the top of the areolae. See id. at 200. The decision did not define the ordinance's prohibition on exposed buttocks. In May 1983, the plaintiffs filed this section 1983 suit in federal district court. They claimed that the ordinance violated their right of free expression under the first amendment, incorporated under the fourteenth amendment, and their rights to due process and equal protection of the law under the fourteenth amendment. Specifically, the plaintiffs claimed that the ordinance was overbroad and void for vagueness under the first amendment and that the City had selectively enforced the ordinance against "topless bars" in violation of the fourteenth amendment. The plaintiffs requested a declaratory judgment, injunctive relief, and damages. On the defendant's motion for partial summary judgment, the district court held that the ordinance was constitutionally valid on its face. In the court's view, the ordinance was a valid exercise of the state's broad authority to regulate alcohol sales under the twenty-first amendment, and, in light of the Florida Supreme Court's decision in Del Percio. the ordinance was not unconstitutionally~broad. The district court, however, like the Florida Supreme Court in Del Percio. addressed only the ordinance's proscription on exposed breasts. The district court also denied summary judgment on the defendant's affirmative defense that the ~ decision rendered the presem case res judicata. (FN3) *582 31 The case then went to trial before the court on the remaining claims. The court held that, although the plaintiffs had proved they were singled out for prosecution, they had not shown that this prosecution was invidious or conducted in bad faith. The court thus denied their claim. In addition, the court upheld the constitutionality of the ordinance's prohibition on exposed buttocks, rejecting the plaintiff's contention that the provision was impermissibly vague. The district court, therefore, dismissed the plaintiffs' case. 715 F.Supp. 334. On appeal, the plaintiffs attack the district court's decision on four grounds: they claim that (1) the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment; (2) the court erred in denying the plaintiffs' claim that the ordinance's provisions were overbroad; (3) the court erred in denying the plaintiffs' void-for-vagueness claim; and (4) the court erred in denying the plaintiffs' selective enforcement claim. We hold that the plaintiffs' claims entirely lack merit. In addition, because the plaintiffs' contentions are no more than conclusory assertions, unsupported by argument or reason, we hold that this appeal is frivolous under Rule 38, and instruct the district court to award the appellee double costs and attorneys' fees for this appeal. II. AG [I] The plaintiffs claim that the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment. (FN4) Under the Florida Supreme Court's decision in ~ and existing United States Supreme Court and Eleventh Circuit precedent, this argument is clearly foreclosed. In Del Percio. the court held that, as a matter of state law, 'Florida municipalities ... have the authority to exercise the regulatory power of the twenty-first amendment recognized in New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981)." 476 So.2d at 201. In Bellanca. the Supreme Court held that, although nude dancing implicates the first amendment, the states' broad powers under the twenty-first amendment to regulate alcohol outweigh any first amendment interest in nude dancing. 452 U.S. at 717, 101 S.Ct. at 2601 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975)); see City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 95-96, ,Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. 11 (Fla.) 1990) Page 4 107 S.Ct. 383, 385, 93 L.Ed.2d 334 (1986); Jorgenson v. County of Volusia, 846 F.2d 1350, 1351 (llth Cir. 1988); Lanier v. City of Newton, Ala., 842 F.2d 253, 255 (11th Cir. 1988); Fillingim v. Boone, 835 F.2d 1389, 1394 (llth Cir. 1988); Del Percio, 476 So.2d at 201. Following this established precedent, the district court in the present case properly analyzed the ordinance under the twenty-first amendment and properly upheld it as a valid exercise of the City's broad twenty-first amendment powers. The plaintiffs, moreover, fail directly to join issue with this precedent. Rather, they attempt to skirt this authority by observing that the City Code broadly defines the term "establishment dealing in alcoholic beverages,~ see supra note 1. The plaintiffs contend that, whereas the ordinances in Bellanca and its progeny regulated only establishments licensed to sell liquor, the ordinance in the present case is not limited to establishments licensed to sell alcohol but also applies to unlicensed establishments that permit alcohol consumption. Consequently, they argue, the ordinance is *583 an exercise of the City's general police powers, which must be analyzed under the first amendment rather than under the twenty-first amendment. The plaintiffs, however, provide no legal support for this argument, and they fail to address the string of Eleventh Circuit cases that have expressly analyzed virtually identical ordinances under the twenty-first amendment. The plaintiffs rely on this court's decision in Leverett v. City of Pinellas Park, 775 F.2d 1536 (llth Cir. 1985), a case that invalidated under the first amendment an ordinance prohibiting nude dancing in "any 'commercial establishment,' "id. at 1540 n. 2. Although the ordinance in the present case is not limited to licensed establishments like the ordinance in Bellanca. neither does it apply to any commercial establishment like the ordinance in ~verctt. Rather, the ordinance here falls in between these other two categories .of regulation: it applies to establishments dealing in alcoholic beverages, and although such establishments are not necessarily licensed to sell alcohol, they must deal in alcoholic beverages. The regulation here thus has a definite nexus to alcohol. Not only is ~ factually inapplicable to the present case--a problem that the plaintiffs never address--but, in addition, a string of cases in this circuit has clearly foreclosed the plaintiffs' argument. The court in these cases has analyzed this intermediate category of regulation under the twenty-first amendment, distinguished ~verett. and held that the regulation of protected expression by such an ordinance is incidental to the regulation of alcohol. ~ Lanier, 84r2 F.2d at 256-57 (ordinance applies to *any business establishment ... which sells, dispenses or otherwise allows the consumption of alcoholic beverages on the premises"); (FNS) Fillingim, 835 F.2d at 1397 (ordinance prohibited "nude or semi-nude entertainment in any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises"); see also Jorgenson v. County of Volusia, 625 F.Supp. 1543, 1547 (M.D.FIa. 1986) (upholding ordinance identical to Daytona Beach ordinance). (FN6) These cases obviously foreclose the plaintiffs' argument here, and the plaintiffs have made no attempt to distinguish them. Indeed, the plaintiffs' briefs even fail to cite Eillillgilll and J_oxggag~ (FN7) The plaintiffs also fail to address the Supreme Court's statement in Ziffrin. Inc. v. Reeves that "[w]ithout doubt a State may absolutely prohibit the manufacture of intoxicants, their transportation, sale, or possession, irrespective of when or where produced or obtained," 308 U.S. 132, 138, 60 S.Ct. 163, 167, 84 L.Ed. 128 (1939) (emphasis added). ~ thus indicates that the City's twenty-first amendment power extends beyond licensed establishments and includes the power to regulate the "possession~ of alcohol even outside of licensed establishments. In short, under established precedent, the plaintiffs' contention is entirely meritless. [2] The plaintiffs also attempt to' argue that the ordinance implicates the first amendment under the overbreadth doctrine. The gist of the plaintiffs' "argument~ appears in a two-sentence paragraph in their brief: *584 In general rigorous constitutional standards apply when the government attempts to regulate expression and precision of drafting and clarity of purpose are essential .... The definition of establishment dealing in alcoholic beverages is not precisely drafted but includes many establishments without liquor licenses or which do not allow consumption on premises. Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. II (Fla.) 1990) Page 5 Charitably construed, this argument contends that the City's broad definition of "establishment dealing in alcohol ~ creates the possibility that the ordinance's application might, at the margins, extend beyond the limits of the City's twenty-first amendment powers. That is, the City might use the ordinance to prohibit nude dancing in a context where alcohol is not in fact consumed. (FN8) Such a use of the ordinance would presumably extend beyond the City's twenty-first amendment powers (FNg) and would implicate the first amendment as an exercise of the City's general police powers. The plaintiffs appear to be arguing that, because of this attenuated danger at the extreme margins of the ordinance's possible applications, any application of the ordinance--even an application to conduct at the ordinance's core--must be analyzed under the strict standards of the first amendment. This argument, once fleshed out, is clearly frivolous. Not only do the plaintiffs fail to provide any legal support for such a contention, but the courts have carefully drawn the contours of the overbreadth doctrine to exclude exactly such claims. As the Supreme Court explained in Broadrick v. Oklahoma: Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principle is that constitutional rights are personal and may not be asserted vicariously. These principles rest on more than the fussiness of judges. They reflect the conviction that:under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws. Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between litigants brought before the Court .... 413 U.S. 601, 610-11, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973) (citations omitted). Only a few limited exceptions to this rule exist, none of which the present case involves. For example, a statute may be susceptible to a facial overbreadth challenge if it threatens to chill protected speech in general. Even then, as the Broadrick Court stated, "[a]pplication of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort." Id. at 613, 93 S.Ct. at 2916. As the Court discussed, the doctrine's applicability becomes more and more limited as the allegedly chilled expression "moves from 'pure speech' toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.~ Id. at 615, 93 S.Ct. at 2917. The overbreadth doctrine clearly does not apply here. As we discuss above, there can be no doubt that the Daytona Beach ordinance constitutes a valid exercise of the City's twenty-first amendment power to ban nude dancing in bars. Such a proscription lies at the core of the City's powers under the twenty-first amendment. The *585 plaintiffs' conduct in the present case, moreover, rests extremely close to this core. Whether or not the ordinance reaches to conduct at a distance from these core concerns, the plaintiffs clearly have no standing under Broadrick to challenge, on this basis, the ordinance's application to them. The plaintiffs' overbreadth argument lacks foundation. [3] As one last stab in support of their contention that the district court should have analyzed this case under the first amendment, the plaintiffs refer to a footnote in Justice Stevens' lacobucci dissent, in which he suggested that ~[s]ince the Twenty-first Amendment deals only with a State's power to regulate 'transportation or importation into' the State, it would have no effect on a Kentucky bar selling Kentucky Bourbon. ~ 479 U.S. at 102 n. 7, 107 S.Ct. at 389 n. 7. Relying on this footnote, the plaintiffs claim that the twenty-first amendment does not apply in this case because the plaintiffs agreed to sell only instate liquor in their establishments. The district court rejected this argument, observing that the plaintiffs cited no legal support for their contention other than the footnote in Justice Stevens' dissent. Nor do the plaintiffs now provide any additional legal support for their position or offer any argument explaining the error of the district court's decision. They fail, moreover, to distinguish, let alone cite, legal authority that explicitly rejects their position. Based on a definitive review of the twenty-first amendment, Judge Melton of the Middle Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. I1 (Fla.) 1990) Page 6 District of Florida concluded: 'Certainly, the 'twenty-first amendment power over alcohol consumption is broad enough to embrace state power to zone strong sexual stimuli away from places where liquor is served,' ... without being forced to distinguish between domestic and imported alcohol." W.D.C., Inc. v. City of Jacksonville, 710 F.Supp. 782, 789 (M.D.FIa. 1989) (quoting L. Tribe, American Constitutional Law Sec. 6-25, at 478 n. 15 (2d ed. 1988)). As Judge Melton also observed, the ordinances at issue in la~zl~r, gi._l~lig~ and Fillingim made no distinction between in-state and out-of-state liquor. The plaintiffs' contention on this point is meritless as well. [4] The plaintiffs next raise another variation of an overbreadth attack: they claim that the ordinance prohibits forms of attire that are socially acceptable and that are regularly worn on the beaches. They assert, for example, that a bar owner would violate the ordinance simply by showing a television newscast of people at the beach. In addition, they argue that patrons wearing such generally accepted attire subject themselves to arrest for violating the ordinance once they enter an establishment dealing in alcohol. The district court rejected this claim, and we affirm. With respect to :the first argument, demonstrated by the newscast hypothetical, the plaintiffs have asserted no basis for challenging the City's broad powers to regulate alcohol under the twenty-first amendment. As we discuss, "the Amendment confers broad regulatory powers on the States,~ lacobucci, 479 U.S. at 95, 107 S.Ct. at 385, and those broad powers outweigh the free speech interest in nude and semi-nude dancing, thus enabling the states to ban that conduct. The plaintiffs, however, fail to demonstrate any first amendment interest on the bar owners' part in allowing their, patrons to wear revealing attire. If the City can exercise its twenty-first amendment power to ban conduct that implicates the first amendment, then it can certainly exercise that power to ban conduct that does not implicate the first amendment. With respect to the plaintiffs' assertion that the ordinance violates their patrons' own right to wear revealing clothing, the plaintiffs lack standing to attack the ordinance on that basis. As we discuss above, the Supreme Court in ~ held that "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in situations not before the Court." 413 U.S. at 610, 93 S.Ct. at 2915. *586 A party may bring such a challenge only when the broad language of a regulation chills expression protected by the first amendment. The doctrine's application becomes more unlikely as the allegedly chilled expression 'moves from 'pure speech' toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws." Id. at 615, 93 S.Ct. at 2917. Here, the chilled expression--the conduct of wearing revealing clothing--rests at a pronounced distance from the "pure speech" at the first amendment's core; in fact, this conduct does not implicate the first amendment at all, and no one contends otherwise. (FNIO) In addition, this conduct falls within the scope of the City's otherwise valid ordinance proscribing exposure of certain body parts in establishments dealing in alcohol. (FNll) These circumstances, obviously, justify no exception to the traditional rules of standing articulated in ~ We thus hold that the district court properly rejected this overbreadth claim, Co [5] The plaintiffs also attack the district court's decision to deny their void-for-vagueness claim. The plaintiffs contend that the ordinance is unconstitutionally vague in defining the prohibition on exposed breasts and the prohibition on exposed buttocks. By way of argument, the plaintiffs assert that various Florida state courts have interpreted these provisions differently and that this proliferation of interpretations demonstrates the ordinance's vagueness. In pointing to the various judicial interpretations of this ordinance, however, the plaintiffs fail to mention that the Florida Supreme Court in Del Percio and the district court in this case defined these two provisions. With respect to the ordinance's prohibition on exposure of breasts, the Florida Supreme Court in ~ held that the provision meant that "no portion of the breast directly or laterally below the top of the areola may be exposed to public view." 476 So.2d at 200. In granting partial summary judgment, the district court held that the Del Percio court's construction was clear and thus rejected the plaintiffs' void-for- Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A.11 (Fla.) 1990) Page 7 vagueness claim regarding this provision. [6] With respect to the ordinance's proscription on exposure of buttocks, the district court in its final decision acknowledged that the provision was somewhat vague. The court observed that the ordinance did not specify "whether the entire buttocks, or what Portion thereof, must be covered" and that the ordinance did not "define the word 'buttocks.'" 715 F.Supp. at 337. The court, however, concluded that the provision was not" unconstitutionally vague,~ that is, it was "not 'impermissibly vague in all of its applications.'" Id. (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)). Although the Florida Supreme Court had not addressed the provision at issue, the district court was able to "extrapolate [the ordinance's] allowable meaning." See Grayned v. City of Rockford, 408 U.S. 104, 110,.92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972) (quoting Garner v. Louisiana, 368 U.S. 157, 174, 82 S.Ct. 248, 257, 7 L.Ed.2d 207 (1961) (Frankfurter, J., concurring)). The court decided that the Florida Supreme Court would interpret the ordinance to "prohibit exposure of any portion of the buttocks." 715 F.Supp. at 339. The court then determined that the Florida Supreme Court would define "buttocks" to include: the area at the rear of the body which lies between two imaginary lines running *587 parallel to the ground when a person is standing, the first or top such line drawn at the top of the cleavage of the nates [i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg] and the second or bottom line drawn at the lowest visible point of this cleavage or the lowest point of the curvature of the fleshy protuberance, whichever is lower, and between two imaginary lines on each side of the body, which lines are perpendicular to the ground and to the horizontal lines described above, and which perpendicular lines are drawn through the point at which each nate meets the outer side of each leg. The Ordinance would be violated, therefore, if any portion of this' area is visible from any vantage point. Id. at 339. On appeal, however, the plaintiffs fail entirely to mention, let alone critique, these discussions of the ordinance. The plaintiffs fail to explain how the ordinance remains vague, let alone unconstitutionally vague, in light of the Florida Supreme Court and the district court's statements. Those statements, in our view, are persuasive. The plaintiffs are merely groping in the dark. Accordingly, we reject the void-for-vagueness attack and affirm the district court's decision on that issue. [7] Finally, the plaintiffs claim that the district court erred in denying their selective enforcement claim. The plaintiffs contend that the City of Daytona Beach has enforced the statute only against "topless bars~ and not against other, similarly situated establishments dealing in alcohol but not providing nude dancing. According to the plaintiffs, this selective enforcement violates their right to equal protection under the fourteenth amendment. The district court analyzed this claim under the two- part selective enforcement standard set out in Fillingim and Lanier. The court held that, although the plaintiffs had demonstrated under the standard's first element that they were singled out for prosecution among others who were similarly situated, the plaintiffs had not satisfied the standard's second requirement that this selection was invidious or in bad faith. 715 F.Supp. at 340. Again, the plaintiffs on appeal fail even to state, let alone to demonstrate, how the district court's conclusion is erroneous. That failure alone renders their appeal frivolous, but we find a more fundamental problem with this claim as well. A selective enforcement claim generally arises in the criminal context, when a defendant challenges the enforcement of a criminal statute or ordinance against him. In that context, the defendant does not claim that the ordinance itself is invalid; rather, the defendant attacks the prosecution against him pursuant to that ordinance. The defendant bases his attack on the grounds that the prosecution against him constitutes a selective enforcement and thus violates his right to equal protection under the fourteenth amendment. If the court decides to grant the defendant relief, then it dismisses the criminal indictment against the defendant. The court, however, does not strike down the statute itself: the selective enforcement claim challenges the manner in which the state enforces the statute, and not the statute itself. Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A.11 (Fla.) 1990) Page 8 In the present case, the plaintiffs bring a selective enforcement claim in the civil context. Just as in the criminal context, this selective enforcement claim provides no basis for the court to invalidate the City ordinance: a selective enforcement claim challenges the enforcement of the ordinance and not the ordinance itself. Nor do the plaintiffs contend, on selective enforcentent grounds, that criminal prosecutions against them should be dismissed: although the City did bring criminal charges against some of the plaintiffs, no charges are currently pending. Rather, the plaintiffs request a declaratory judgment that the City's selective enforcement is unconstitutional and an injunction preventing the City from selectively enforcing the ordinance *588. against them. (FN12) The district court held that the plaintiffs failed to prove a selective enforcement claim, but even if the plaintiffs could prove their claim, an injunction would not necessarily prevent the City from enforcing the ordinance against them. The court would enjoin the City not to enforce the ordinance against the plaintiffs selectively. The City could satisfy such a mandate simply by enforcing the ordinance against all similarly situated violators. Thus, even if the plaintiffs were to succeed on this selective enforcement claim, they could not escape the ordinance's application to them; they could only require the City to enforce it more widely--a result that is clearly not what the plaintiffs desire. As this discussion demonstrates, the plaintiffs' selective enforcement claim is entirely without purpose. In the context of this civil suit, such a claim is an inappropriate basis for the relief sought by the plaintiffs. We therefore affirm the district court's disposition of this claim as well. III. For the foregoing reasons, we hold that the plaintiffs' contentions are wholly meritless and therefore AFFIRM the district court's disposition of this case. In addition, because the plaintiffs' claims are entirely without merit, we hold under Rule 38 that this appeal is frivolous and that plaintiffs be assessed double costs and attorneys' fees for this appeal. The Clerk of this Court shall fix the double costs, and the District Court on receipt of our mandate, shall determine the amount of the defendants' attorneys' fees for this appeal. IT IS SO ORDERED. FN* See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. FNI. The ordinance provides as follows: Sec. 5-25. Nudity, Sexual Conduct Prohibited. (a) No person shall expose to public view his or her genitals, pubic area, vulva, anus, anal cleft or cleavage or buttocks or any simulation thereof in an establishment dealing in alcoholic beverages. (b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages. (c) No person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit any person to expose to public view his or her genitals, pubic area, vulva, anus, anal cleft or cleavage or buttocks or any simulation thereof within the establishment dealing in alcoholic beverages. (d) No person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages. (e) No person shall engage in and no person maintaining, owning, or operating an establishment dealing in alcoholic beverages shall suffer or permit any sexual intercourse, masturbation, sodomy, beastiality [sic], oral copulation, flagellation, any sexual act which is prohibited by law, touching, caressing or fondling of the breasts, buttocks, anus or genitals or the simulation thereof within an establishment dealing in alcoholic beverages. (f) No person shall cause and no person maintaining, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit the exposition of any graphic representation, including pictures or the projection of film, which depicts human genitals, pubic area, vulva, anus, anal cleft or cleavage, buttocks, female breasts below the top of the areola, sexual intercourse, masturbation, sodomy, bestiality, oral Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 91 ! F.2d 579, Geaneas v. Willets, (C. A. 1 ! (Fla.) 1990) Page 9 copulation, flagellation, any sexual act prohibited by law, touching, caressing or fondling of the breasts, buttocks, anus, or genitals, or any simulation thereof within any establishment dealing in alcoholic beverages. Section 5-1 of the Code further provides: Establishmem dealing in alcoholic beverages. Any business or commercial establishment (whether open to the public at large or where entrance is limited by cover charge or membership requirement) including those licensed by the state for sale and/or service of alcoholic beverages, and any bottle club; hotel; motel; restaurant; night club; country club; cabaret; meeting facility utilized by any religious, social, fraternal or similar organization; business or commercial establishment where a product or article is sold, dispensed, served or provided with the knowledge, actual or implied, that the same will be, or is intended to be mixed, combined with or drunk in connection or combination with an alcoholic beverage on the premises of said business or commercial establishment; or business or commercial establishment where the consumption of alcoholic beverages is permitted. A private residence, whether permanent or temporary in nature, is not an establishment dealing in alcoholic beverages. *588_ FN2. TheCharges against the other plaintiffs here are no longer pending either. regulation of alcohol, and did not go beyond the bounds of the Twenty-first amendment." 842 F.2d at 257. FN6. On appeal in J.l/lge, ato~ this court in an unpublished opinion reversed the district court for failure to provide the attorneys notice of sanctions. See 824 F.2d 973 (llth Cir. 1987). On remand, the district court reaffirmed the imposition of sanctions, and this court affirmed, see 846 F.2d at 1350. FN7. References to Eillillgilli appear only in a block quotation and in connection with the plaintiffs' selective enforcement claim. We also observe that the district court in J. oxgrdl~i~ imposed Rule 11 sanctions on Eric Latinsky, the same attorney who represents the plaintiffs in this case, for failing to cite key cases (i.e., Bellies and Del Percio) in his memorandum of law attacking the Volusia County ordinance. FN8. Whether or not the ordinance would properly apply in such a situation, however, raises a question of state law, which the state courts have not yet had occasion to address. FN9. Of course, the plaintiffs would somehow have to explain away, which they have not done, the Court's pronouncement in Ziffr~ that the states' twenty-first amendment power includes the power to regulate the mere possession of alcohol. FN3. The City does not raise this issue on appeal, and we therefore do not address it. FN4. The twenty-first amendment provides, in pertinent part: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." U.S. Const. amend. 21. The first amendment provides, in pertinent part: "Congress shall make no law ... abridging the freedom of speech .... . U.S. Const. amend. 1. FN5. In Lanier. the court upheld the ordinance as applied. The court expressly stated that it was not adopting the district court's holding that the ordinance "clearly was passed as an incident to the FNIO. The plaintiffs claim only that the conduct implicates a liberty interest under the fourteenth amendment. FNI1. As the district court reasoned, even if this conduct implicates a liberty interest under the fourteenth amendment, that liberty interest would be entitled to no greater deference than the free speech interest in nude dancing under the first amendment. Because the City's power under the twenty-first amendment outweighs that free speech interest, it would also outweigh this liberty interest. The ordinance would remain a valid exercise of the City's twenty-first amendment powers. FN12. In Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975), the Supreme Court held that the Younger Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 911 F.2d 579, Geaneas v. Willets, (C.A. I1 (Fla.) 1990) Page 10 abstention doctrine, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), did not apply when a plaintiff requested an injunction of future state criminal prosecutions. The doctrine of course applies when a state criminal prosecution is pending. Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A.11 (Fla.) 1988) Page · 1389 835 F.2d 1389 Richard FILLINGIM, Petitioner-Appellant, V. Eddie BOONE, Sheriff of Leon County, Florida, et al., Respondents-Appellees. No. 87-3370. United States Court of Appeals, Eleventh Circuit. Jan. 22, 1988. The co-owner and manager of a nightclub who was prosecuted and convicted for violating a county's adult entertainment ordinance brought a habeas corpus action challenging the constitutionality of the ordinance. The United States District Court for the Northern District of Florida, No. TCA 85-7151-WS, William Stafford, Chief Judge, adopted the report of the magistrate finding the ordinance constitutional and upholding the petitioner's conviction under the ordinance. The petitioner appealed. The Court of Appeals held that the adult entertainment ordinance, prohibiting nude or seminude entertainment in commercial establishments where alcoholic beverages were sold for consumption on the premises, was constitutional. Affirmed. 1. INTOXICATING LIQUORS k10(2) 223 .... 223I Power to Control Traffic 223k9 Delegation of Powers 223k10 To Local Authorities in General 223k10(2) Regulations within municipal power in general. C.A. II (Fla.) 1988. The State of Florida has delegated its Twenty-First Amendment powers to regulate the selling of liquor to municipalities and counties, which may exercise the powers without the explicit authority of the electorate. U.S.C'.A. Const. Amend. 21. 2. INTOXICATING LIQUORS k10(2) 223 .... 223I Power'to Control Traffic 223k9 Delegation of Powers 223k10 To Local Authorities in General 223k10(2) Regulations within municipal power in general. C.A.I1 (Fla.) 1988. County commission had authority to enact ordinance restricting behavior inside licensed businesses selling liquor by prohibiting nude or seminude dancing under the state's delegation of its Twenty-First Amendment powers to municipalities and counties. U.S.C.A. Const. Amend. 21. 3. INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1988. County commission, acting within its delegated constitutional authority derived from the state's powers under the Federal Constitution, did not act with total irrationality or invidious discrimination, in passing adult entertainment ordinance prohibiting nude or seminude dancing in establishments selling alcohol for consumption, under its authority to control distribution and dispensation of liquor within its jurisdiction. U.S.C.A. Coast. Amend. 21. 4. INTOXICATING LIQUORS k15 223 .... 223II Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1988. A county adult entertainment ordinance prohibiting nude or seminude dancing in establishments selling liquor for purposes of consumption was not unconstitutionally vague as to physical exposure prohibited. U.S.C.A. Const. Amend. 1. 5. INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1988. A county adult entertainment ordinance prohibiting nude or seminude dancing in establishments selling liquor for consumption on the premises was not overbroad in terms of the scope of places restricted, the potential penalties, and the scope and form of expression prohibited, as it was clear that, a substantial government interest in regulating liquor under the Twenty-First Amendment was furthered by the ordinance, and the incidental restrictions on First Amendment freedoms were no greater than essential to further that interest. U.S.C.A. Const. Amends. 1, 5, 14, 21. 6. CRIMINAL LAW k37.10(2) 110 .... Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page 2 110II Defenses in General 110k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith 110k37.10 Discriminatory or Selective Prosecution 110k37.10(2) Particular cases. C.A. 11 (Fla.) 1988. A joint owner of a nightclub was not subjected to selective prosecution under a county adult entertainment ordinance, although the two other co- owners were not arrested for ordinance violations in light of the fact that the co~owner arrested was apparently acting in the capacity of manager of the establishment, while the other co-owners were not. U.S.C.A. Const. Amends. 5, 14. 7. CRIMINAL LAW k37.10(2) 110 .... 110II Defenses in General 1 I0k36.5 Official Action, Inaction, Representation, Misconduct, or Bad Faith 110k37.10 Discriminatory or Selective Prosecution 110k37.10(2) Particular cases. C.A.11 (Fla.) 1988. The manager and co-owner of a nightclub could not show that his prosecution under the county adult entertainment ordinance was invidious or in bad faith absent a showing that the Government's alleged selective prosecution was motivated by constitutionally impermissible motives such as racial or religious discrimination or interference with the legitimate exercise of constitutional rights. U.S.C.A. Const. Amends. 5, 14. 8. INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A.I 1 (Fla.) 1988. , County adult entertainment ordinance, which presumed that a person who owned, maintained, operated, leased, or entered a commercial establishment where nude or seminude entertainment actually took place on the premises in violation of the ordinance, was presumed to be aware that the entertainment was taking place in the establishment was constitutional and did not violate Florida evidence code sections relating to presumption which only applied to civil cases. U.S.C.A. Const. Amends. 5, 14, 21; West's F.S.A. Const. Art. 3, Sec. Il(a)(3); West's F.S.A. Sees. 90.301(4), 100.291,658.94, 689.19. 9. CONSTITUTIONAL LAW k266(7) 92 .... 92XII Due Process of Law 92k256 Criminal Prosecutlo~ 92k266 Rules of Evidence in General 92k266(7) Presumptions, burden of proof, and weight of evidence. [See headnote text below] 9. INTOXICATING LIQUORS k15 223 .... 223II Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. I1 (Fla.) 1988. A county adult entertainment ordinance did not explicitly create an unconstitutional burden-shifting presumption as to the element of "suffering or permitting" the nude or seminude entertainment to take place by an owner, maintainer, operator, lessee or customer of an establishment where the entertainment was taking place, as the element that required affirmative proof of a defendant's allowing, consenting, approval, acquiescing, agreeing, or failing to prevent the prohibited acts. U.S.C.A. Const. Amend. 14. lO.INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1988. Presumption in an adult entertainment ordinance that the owner or operator of an establishment where nude or seminude entertainment was taking place was more likely than not to be aware of what type of entertainment was being offered at establishment was constitutional as it was rationally connected to the fact presumed. U.S.C.A. Const. Amends. 1, 5, 14. 11.INTOXICATING LIQUORS k15 223 .... 22311 Constitutionality of Acts and Ordinances 223k15 Licensing and regulation. C.A. 11 (Fla.) 1988. An adult entertainment ordinance which presumed that the owner or operator of an establishment where nude or seminude dancing '1389 was taking place suffered or permitted the entertainment to occur was Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page 3 not unconstitutional as applied to the owner manager of the business who had direct participation in planning the entertainment to be offered. U.S.C.A. Const. Amends. 1, 14. · 1391 Richard Fillingim, pro se. Richard L. Wilson, Orlando, Fla., for petitioner- appellant. [11[2113114115116][7118][91[101[111. This court has reviewed the entire record, and after careful consideration AFFIRMS the district court on the basis of the Magistrate's opinion which was adopted by the district court and is attached hereto as Appendix A. , APPENDIX A Gayle Smith Swedmark, Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, Fla., for respondents-appellees. RICHARD FILLINGIM, Petitioner, V. Appeal from the United States District Court for the Northern District of Florida. EDDIE BOONE, Sheriff of Leon County, Florida, et al., Respondents. Before HILL and FAY, Circuit Judges, and ALLGOOD (FN*), Senior District Judge. PER CURIAM: In June, 1982, Leon County, Florida enacted ordinance 82-32, commonly referred to as the Adult Entertainment Ordinance. This ordinance prohibits nude or semi-nude entertainment in commercial establishments where alcoholic beverages are sold, consumed or possessed on the premises. (FN1) No. TCA 85-7151-WS. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION FILED: May 18, 1987 ORDER '1392 On August 14, 1982, fourteen people were arrested at Fannie's, a Tallahassee night club, for violating the ordinance. Richard Fillingim, the manager and one of the owners of Fannie's was among those arrested. Fillingim pled nolo contendere and was sentenced to thirty days in jail and fined. The petitioner served his sentence but continued to challenge the constitutionality of the ordinance. The district court, adopting the report and recommendation of the Magistrate, found the ordinance constitutional. Fillingim continues his arguments to this court contending that: Leon County had no authority to enact the ord~inance; the ordinance is overbroad and vague and the ordinance was arbitrarily and discriminatorily enforced against him. The issues before this court are the same ones considered by the court below. Each point was briefed extensively by both sides. The Magistrate provided the court with a very thorough and well- reasoned Report and Recommendation. The district court, after considering the appellant's objections, adopted the Magistrate's report. STAFFORD, Chief Judge. This cause comes on for consideration upon the magistrate's report and recommendation dated January 27, 1987 (document 29). All parties previously have been furnished copies of the report and recommendation and have been afforded an opportunity to file objections pursuant to Section 636(b)(1), Title 28, United States Code. The court has considered the report and recommendation and all objections thereto timely filed by the parties. Page I of the report and recommendation incorrectly shows petitioner's conviction date as January 24, 1983 rather than the true date of January 24, 1984. Other than this typographical error, the court determines that the report and recommendation should be adopted in full. Accordingly, it is now ORDERED: 1. The magistrate's report and recommendation is adopted and incorporated by reference in this order of the court. ~opyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A.I 1 (Fla.) 1988) Page 4 2. The motion for summary judgment in favor of the petitioner is hereby DENIED. 3. The motion for preliminary injunction is likewise DENIED. 4. The Clerk of the Court is directed to prepare, sign and enter a judgment in accordance with Rule 58(1), Fed. R.Civ. P., that the petitioner take nothing and that this action be DENIED. SUSAN M. NOVOTNY, United States Magistrate. REPORT AND RECOMMENDATION The above-styled cause is before the court upon a petition for a writ of habeas corpus pursuant to the provisions of Section 2254, Title 28, United States Code. This suit challenges the constitutionality of a county ordinance prohibiting topless dancing. Immediately pending is petitioner's motion for entry of summary judgment. On January 24, 1983, petitioner was convicted upon his pleas of nolo contendere of three violations of Leon County Ordinance No. 82-32, commonly referred to as the Adult Entertainment Ordinance. Petitioner '1393 was sentenced to thirty days (consecutive) incarceration and payment of costs in the amount of $250.00 on each charge. During the pendency of this litigation, petitioner completed his term of incarceration. Costs, however, have not been paid. On January 29, 1985, Magistrate Crongeyer found that ~Although the petitioner is no longer in custody, collateral legal consequences still attach to the sentence which was imposed." Thus the matter is still ripe for disposition. Petitioner raises five grounds challenging the constitutionality of the Adult Entertainment Ordinance contending his First Amendment right of freedom of expression and his , Fourteenth Amendment right to due process have been violated. He charges first that the Leon County Commissioners had no constitutional authority to enact said ordinance; second, that the ordinance is vague; third, that the ordinance is overbroad; fourth, that the ordinance was arbitrarily enforced in a discriminatory fashion; and fifth, that the ordinance unconstitutionally contains evidentiary- like, statutory presumptions. The Adult Entertainment Ordinance, passed by the Leon County Commissioners on June 22, 1982, prohibits any person from engaging in nude or semi- nude entertainment in commercial establishments at which alcoholic beverages are available or sold, consumed, or possessed on the premises. Specifically the ordinance makes unlawful in such establishments a female person'§ exposure of her breasts mat or below areola thereof or to employ any device or covering which is intended to give the appearance of or simulate such areas of the female breasts,~ and any person's exposure of a person's 'genitals, vulva, pubic area, buttocks, anus or anal cleft, or cleavage.~ In addition the ordinance prohibits a performer or employee dancing 'in such a manner as to simulate sexual activity with any patron, spectator, employee or other person not employed therein. ~ (The full text of the ordinance may be found at Exhibit B, Document 2). Shortly after his arrest for violating Ordinance 82-32, petitioner challenged its constitutionality by seeking declaratory and injunctive relief in the Circuit Court for the Second Judicial Circuit of Florida in and for Leon County (Case No. 82-2319) and in the Tallahassee Division of the United States District Court of Northern Florida (Case No. TCA 83-7002). On June 17, 1983, Judge Maurice Paul dismissed the federal case relying upon the abstention doctrine, and on September 22, 1983 the Leon County Circuit Court dismissed the state case and rejected the various claims of constitutional infirmity. After his criminal conviction, petitioner again raised issues as to the constitutionality of the ordinance in his direct appeal; and, on February 8, 1984 the First District Court of Appeal of Florida denied his petition for a writ of certiorari, finding the ordinance to be constitutional. Fillingim v. State, 446 So.2d 1099 (Fla. 1st D.C.A., 1984). Each of the arguments presented by petitioner will be discussed seriatim. It should be noted that during the pendency of this petition for writ of habeas corpus, new caselaw has developed in the Florida Supreme Court, the Eleventh Circuit Court of Appeals, and the United States Supreme Court which affects this court's analysis and ultimate decision. I. Coun_ty Commission's Authority. to Enact Ordinance Before addressing the specific challenge tendered by the petitioner, the court recognizes as did the Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A.11 (Fla.) 1988) Eleventh Circuit in Krueger v. City of Pensacola, 759 F.2d 851, 854 (1985), that many of the initial inquiries into the constitutionality of an ordinance of this nature have been resolved. There is no question that topless dancing is a form of expression which is protected at least to some extent by the First Amendment. The Supreme Court in California v. LaRue, 409 U.S. 109, 116, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972) held a prescription of nude dancing infringes on forms of visual presentation which would not fall within the court's definition of obscenity. Thus, nude dancing is "not without its First Amendment protections from official regulation, although it may involve only the barest minimal of protected expression" '1394 and "might be entitled to First and Fourteenth Amendment protection under some circumstances. N Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975). In an important case for this analysis, New York State Liquor Authority v. Bellanca, 452 U.S. 714, 716-17, 101 S.Ct. 2599, 2601, 69 L.Ed.3d 357 (1981), the Supreme Court discussed the power of a state to prohibit topless dancing in an establishment licensed by the state to serve liquor. The Supreme Court acknowledged that such performances merit the "barest minimum" of First Amendment protection, but found that the broad powers of the states to regulate the sale of liquor under the Twenty-first Amendment ("something more than the normal authority over public health, welfare and morals") outweigh any First Amendment interest. California v. LaRue, 409 U.S. at 114, 93 S.Ct. at 395. Specifically, the ~ court found: Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment. Although ,some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty-first Amendment makes that a policy judgment for the state legislature, not the courts. 452 U.S. at 718, 101 S.Ct. at 2602; Doran v. Salem Inn, Inc., 422 U.S. at 932-33, 95 S.Ct. at 2568. Section 2 of the Leon County Ordinance No. 82-32 states: Page 5 Legislative authorization: This Ordinance is enacted in the interest of the public health, peace, safety, morals and general welfare of the citizens and inhabitants of Leon County, Florida, pursuant to Article VIII, Section 1(0, of the Florida Constitution and Section 125.01~1)(o) and (w) of the Florida Statutes (1981), and under the authority of the county to regulate the sale and consumption of alcoholic beverages, pursuant to the Twenty- first Amendment to the Constitution of the United States. Petitioner challenges the commissioners' authority to enact such an ordinance contending, first, that the county does not possess the regulatory powers of the Twenty-first Amendment, and second, that the county has improperly exercised its police power. As cited above, petitioner has argued the constitutionality of Ordinance No. 82-32 in various state and federal forums. In reviewing the petition for certiorari on the direct appeal of his conviction, Florida's First District Court of Appeal examined the county's powers in terms of the Twenty-first Amendment and found the county's adoption of the ordinance to be constitutionally proper: The Twenty-first Amendment to the United States Constitution provides the source of the state's police power of regulation over the distribution or use of intoxicating beverages. We agree with the petitioner's argument that the Twenty-first Amendment does not directly confer authority upon municipalities or counties to oversee conduct in licensed beverage premises; that authority is, however, derived from our state's constitution and statutes. See Article VIII, Sections 2(b) and 5 (as to municipalities) and Article VIII, Section I(0 (as to non-chartered counties), Florida Constitution (1968). Non-chartered counties such as Leon County are vested with broad powers of self- government under Section l(f): the only expressed limitation upon their power to act is that their ordinances be not inconsistent with general or special law, or conflict with a municipal ordinance adopted by a municipality within the county. No one has argued that any municipal ordinance within Leon County conflicts with Ordinance 82-32. Nor do we perceive any inconsistency between the ordinance and general or special law. Admittedly, Section 125.01(1)(o), Florida Statutes, when read without reference to other portions of Section Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page 6 125.01, offers support to petitioner's argument that Leon County is without authority to regulate nude entertainment on licensed '1395 beverage premises inside the incorporated areas of the county, in that it empowers counties to 'lc]stablish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law ...' (e.s.) When the above subsection is construed in pari materia with other subsections of Section 125.01, we find that counties are given broad powers to regulate. For example, Section 125.01(1), Florida Statutes, states that "[t]he legislative and governing body of a county shall have the power to carry on county government ... [and] [t]o the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to. the power to: (t) Adopt ordinances and resolutions necessary for the exercise of its powers and prescribe fines and penalties for the violation of ordinances in accordance with law ... (w) Perform any other acts not inconsistent with law which are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law. ~ We therefore conclude that the ordinance as adopted cannot be considered an ultra vires act of the Leon CountY Commission. [citations omitted]. topless dancing occurs." ~ While the City of Daytona Beach does not have the power to ban liquor sales, the powers of the state devolve to municipalities to "exercise any power for municipal purposes except as otherwise provided by law." "'Municipal purpose' means any activity or power which may bi exercised by the state or its political subdivisions." "IT]he legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except: ... (c) Any subject expressly preempted to state or county government by the constitution or by general law." The Florida Constitution and the statutes thus imbue the City with the state's full police powers, including those under the twenty- first amendment, except those powers expressly preempted. [citations omitted]. City of Daytona Beach v. Del Percio, 476 So.2d 197, 201 (Fla. 1985). Petitioner relies heavily upon an Eleventh Circuit case with which this court is familiar, Kl:KO. gtL~ Ci.ty of Pensacola. supra. In Kngg~ the Eleventh Circuit found a Pensacola ordinance, very similar to that enacted by Leon County, to be unconstitutional. In recogm'zing l:t.~]~LOll[_l,,i~t~ Authority_ v. Bellanca and the state's authority to regulate pursuant to the Twenty-first Amendment, the Eleventh Circuit concluded that: Fillingim v. State, 446 So.2d 1099 (Fla. D.C.A. 1984). 1st Although petitioner could not pursue the First District Court of Appeals' ruling to the Florida Supreme Court, the Florida Supreme Court adopted the lower court's analysis in their review of a similar ordinance passed by the City of Daytona Beach. The Supreme Court concluded that "Florida municipalities (and counties, see Fillingim v. State ) thus have the authority to exercise the regulatory power of the Twenty-first Amendment recognized in New York State Liquor Authori.ty v. Bellanca [citations omitted]". Speaking for the majority, Justice Ehrlich reasoned: The state's power to regulate conditions in licensed premises is derived from its power to totally prohibit sales: "The state's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where Because Florida has not delegated its regulatory authority to municipalities, however, Pensacola must justify its ordinance under the stricter standard typically used to review an infringement on a protected liberty interest justified solely under the government's police power. (citations omitted). 759 F.2d at 854-55. It is important to note that Krueger was decided after Fillingim v. State. but three months before the Florida Supreme Court's decision in City. of Daytona Beach v. Del Percio. It is clear that, since ~ the Florida courts have now unquestionably ruled that the state's regulatory powers under the '1396 Twenty-first Amendment have been delegated through that state's constitution and laws to the counties. On January 14, 1987, the Eleventh Circuit reviewed an Alabama city ordinance which, much like the Leon County Ordinance, prohibits the Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page 7 exhibition of certain portions of the female anatomy in drinking establishments. Lanier v. City of Newton, Alabama, 807 F.2d 922 (llth Cir. 1987). There, the appellate court certified certain questions to the Alabama Supreme Court to clarify matters of state law so as to avoid the situation in Krueger. where the Eleventh Circuit determined Florida had not delegated its TWenty-first Amendment authority only to then have the Florida Supreme Court rule to the contrary. Although not dispositive, in Lanier the Eleventh Circuit provides through its certified questions insight into the method of analyzing the constitutionality of a local anti-nudity ordinance in Florida after the ~ ruling. [1][2] In applying the Lanier analysis to the case sub judice. Del Percio clearly established that the State of Florida has delegated its Twenty-first Amendment powers to the municipalities and counties. Impliedly, local governments may exercise these powers without the explicit authority of the electorate. Since there has been no express preemption of the power to regulate behavior inside licensed establishments selling liquor, and no preemption of power to regulate non-obscene exposure, a Florida county may exercise its delegated authority under the Florida constitution and laws. Furthermore, in Del Percio. the Florida Supreme Court essentially determined that it is consistent with the State's statutory and regulatory scheme over liquor licenses for local governmental entities to impose criminal as well as civil penalties for violations of such ordinances. Thus, in transposing the Lanier analysis to a Florida county ordinance which restricts behavior inside licensed businesses selling liquor, the petitioner's claim of lack of authority on behalf of the Leon County Commission to pass such an ordinance fails. In his motion for summary judgment, petitioner argues that the Krlltg0l analysis (that is, rejecting the concept of delegated Twenty-first Amendment powers and instead requiring satisfaction of the 'strict scrutiny' test applicable to use of police power) should be employed by this court in spite of the Florida Supreme Court decision in ~ In support thereof, petitioner cites a recent Sixth Circuit decision, ~lacobucci v. City of Newport, Kentucky, 785 F:2d 1354 (6th Cir. 1986). There, the Sixth Circuit determined a city ordinance which prohibited nude or nearly nude dancing in establishments selling liquor to be an unconstitutional exercise of police powers outside the realm of the Twenty-first Amendment: Given the express statutory authorization for cities to conduct popular elections on the question of local prohibition, as required by the Kentucky Constitution, it is very doubtful that a city in Kentucky may h.V._.OlllialK~ 'ban the sale of alcoholic beverages entirely." Therefore, even assuming that Kentucky has, in some metaphysical sense, delegated its Twenty-first Amendment power to the City of Newport, the ordinance does not fall within the Bellanca doctrine. A city cannot exercise in part a power it does not whole in full, and the citizens of the city have not chosen to exercise the power granted to them by K.R.S. Sec. 242.010-242.990 and Sec. 61 of the Kentucky Constitution. (citations omitted). Id. at 1358. On November 17, 1986, however, the United States Supreme Court reversed the Sixth Circuit's decision. Ci.ty of Ne _wport. Kentucky v. Iacobucci. --- U.S. ----, 107 S.Ct. 383, 93 L.Ed.2d 334 (per curiam) (1986). Without ruling upon the 'state-law question of delegation of authority by the Commonwealth (of Kentucky) to the City of Newport,' the Supreme Court found passage of the ordinance to be within the city's Twenty-first Amendment powers since the city commissioners had determined (as stated in the preamble of the ordinance) that 'nude dancing in establishments serving liquor was 'injurious to the citizens' of the city" and that regulating such dancing was necessary to "prevent- '1397 ling] blight and the deterioration of the City's neighborhoods' and 'decreas[ing] the incidence of crime, disorderly conduct and juvenile delinquency.' In relying upon California v. ~ the Supreme Court held the city's "interest in maintaining order outweighs the interest in free expression by dancing nude.' The Supreme Court in Iacobucci specifically addressed and rejected petitioner's argument presented in his Motion for Summary Judgment that only the citizens of the county have the authority through their majority vote to regulate the sale of liquor in the county: Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot regulate nude dancing in bars. In holding that a State "has broad powers ... to regulate the times, places, and circumstances under which liquor may be sold," Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page 8 Bellanca, 452 U.S. at 715 [101 S.Ct. at 2600], this Court has never attached any constitutional significance to a State's Division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit. ... the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor 'license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine the manner of regulation. The same rationale is applicable to the Florida Constitution and statutes as cited in the Del Percio and Eillillgial decisions. Finally, and in accordance with the determination and recommendation of the undersigned, the United States District Court in the Middle District of Florida (Orlando Division) recently (after Krxle, g~ and Del Percio but before lacobucci and Lanier ) found constitutional a Volusia County ordinance nearly identical to that of Leon County. After considering ~ the Eleventh Circuit decisions of Krueger and Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, cert. denied. 459 U.S. 859, 103 S.Ct, 132, 74 L. Ed.2d 113 (1982), and the Florida ~ decision, District Judge Sharp found the Volusia County Commission empowered to enact the ordinance: The Florida Supreme Court has stated plainly and blatantly that ~ and the Twenty-first Amendment are now the current analysis for eases involving ordinances prohibiting topless dancing in establishments dealing in alcohol on the premises. A legislative decision has been made, now upheld by the judicial decision in ~ Jorgenson v. County of Volusia, 625 F. Supp. 1543, 1547 (M.D.FIa. 1986). In fact, in his published opinion, Judge Sharp commented that it was "inconceivable that plaintiffs would analyze their case with Grand Faloon and Krueger since these cases were decided before Del Percio ...". Id. [3] In light of the aforesaid, the undersigned concludes and recommends a finding that the Leon County Commission acted within its delegated constitutional authority in passing Ordinance 82-32. Because the authority to enact is derived from the state's powers under the Federal Constitution rather than from the county's police power, extensive and detailed legislative findings based upon substantial evidence that the prohibited activity contributes to criminal activity in the county are not required. See Bellanca, 452 U.S. at 717, 101 S.Ct. at 2601; cf. Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d at 950. Rather, the purposes outlined within the ordinance sufficiently demonstrate that the elected county commissioners chose to avoid the disturbances associated with mixing alcohol and nude or semi-nude exhibitions by means of a reasonable restriction upon those establishments which sell liquor for purposes of consumption. See; Ordinance 82-32, Secs. 4(b)(e)(0; ~ Iacobucci. supra. A presumption exists in favor of the validity of a regulation under '1398 the Twenty-first Amendment, and by enacting this ordinance, the Leon County Commissioners certainly did not "act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor~ within their jurisdiction. See. Iacobucci, supra: California v. LaRue, 409 U.S. at 118-119, 120, 93 S.Ct. at 397, 398 (Stewart, J., concurring). Therefore, as to petitioner's first argument, habeas relief is not appropriate. II. Vagueness Petitioner contends that Leon County Ordinance 82-32 is unconstitutionally vague as to the physical exposure prohibited. Specifically the ordinance prohibits the exposure of 'that area of the human female breast at or below the areola thereof'. Petitioner argues that this terminology is not easily interpreted by reasonable persons, police officers and jurists. In presenting this claim to state court, petitioner was unsuccessful. The First District Court of Appeal rejected the contention and found that the ordinance sufficiently defined and described its prescriptions concerning the extent of exposure forbidden. See, Fillingim v. State, 446 So.2d at 1104. In reviewing similar language in ~ Beach v. Del Percio. the Florida Supreme Court applied the standard established by the United States Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. II (Fla.) 1988) Page 9 Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973), quoting United States Civil Service Commission v, National Association of Letter Carriers, AFL/CIO, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L. Ed.2d 796 (1973), that when regulations are "set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, [there is no] sacrifice to the public interest.' The Florida Supreme Court concluded that the 'plain meaning of the ordinance is clear ... the plain meaning of the statute is, as the city suggests, that no portion of the breasts directly or laterally below the top of the areola may be exposed to public view." 476 So.2d at 200. More recently, the federal district court in the Middle District of Florida, in examining the Volusia County ordinance, referred to the Del Percio decision's reliance upon Broadrick v. Oklahoma. and declined to find vague language of that ordinance. Jorgen v. Coun.ty of Volusia. supra. cautioned, however, that the invalidation of an ordinance for facial overbreath is a remedy that should be applied 'sparingly and only as a last resort.' Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916. In reviewing the petitioner's claims in accordance with the four-part test enunciated in United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), and as applied by the Eleventh Circuit with a similar claim of overbreath in !7~ Tavern. Inc. v. Wicker. supra- '1399 . it is clear that in light of the Twenty-first Amendment power utilized to enact the ordinance, a substantial governmental interest is furthered by the ordinance and the incidental restrictions on First Amendment freedoms is no greater than essential to further that interest. [5] Thus, the undersigned f'mds the petitioner's claim that the overbreath of the ordinance violates his First, Fifth and Fourteenth Amendment rights to be without merit and habeas relief is not required. [4] Thus, in accordance with the aforesaid authority, petitioner's claim of unconstitutionality based upon vagueness should be rejected. Ili. Overbreath The petitioner next argues that the Leon County ordinance is overbroad in terms of the scope of the places restricted, the potential penalties, and the scope and form ~f expression prohibited. Like his challenge as tO vagueness, petitioner argued overbreath in state court proceedings. Florida's First District Court of Appeal found the ordinance sufficiently 'defines and describes its prescriptions in terms of place, type of conduct, and extent of exposure forbidden.' Fillingim, 446 So.2d at 1104 In ~ the Florida Supreme Court also addressed a claim of overbreath as to the Daytona Beach ordinance. There, the Florida Supreme Court found the plaintiff to be without standing to raise liberty interests on behalf of customers, but as to employees, found the ordinance not to be overbroad with respect to the scope and form of expression prohibited. Under the doctrine of overbreath, an ordinance is unconstitutional if it reaches more broadly than is reasonably necessary to protect legitimate governmental interests at the expense of First Amendment freedoms. The Supreme Court has IV. Selective Prosecution Petitioner contends that, although the establishment known as Fannie's was owned by two other individuals in addition to himself, he was the only person arrested. Thus he argues that habeas relief should be granted due to the unconstitutional discrimination and selective enforcement of this criminal ordinance. Petitioner recognizes that to prevail on a selective prosecution claim, he must make a prima facie showing that he has been singled out for prosecution while others similarly situated and committing the same acts, have not been prosecuted. Petitioner must further show that the government prosecuted him invidiously or in bad faith.' Owen v. Wainwright, 806 F.2d 1519 (llth Cir., 1986); United States v. Pleasant, 730 F.2d 657, 663 (llth Cir.1984); United States v. Lichtenstein. 610 F.2d 1272, 1281 (5th Cir.), cert. denied sub nom, Bella v. United States, 447 U.S. 907, 100 S.Ct. 2991, 64 L. Ed.2d 856 (1980). The burden of proof in making a prima facie showing of selective prosecution has been characterized as 'heavy'. United States v. Johnson, 577 F.2d 1304, 1308 (Sth Cir. 1978). [6][7] Although petitioner presents a strong case that other "owners" of the establishment were not Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A.11 (Fla.) 1988) Page 10 arrested and prosecuted, it is noted that he, unlike the others, apparently acted in the capacity of manager of the establishment. Although the other owners may be just as susceptible to criminal prosecution simply due to their status as owners, petitioner has not established that their actions were the same as his and that they were indeed "similarly situated." Nevertheless, in light of the preceding discussion as to the constitutionality of the ordinance, it is clear that the petitioner was not prosecuted "invidiously or in bad faith." The invidiousness requirement is satisfied only if it can be established that the government's selective prosecution is motivated by constitutionally impermissible motives such as racial or religious discrimination or interference with the legitimate exercise of constitutional rights. United States v. Lichtenstein. supra. Here there was no infringement of constitutional rights. The conscious exercise of selectivity in enforcement of an ordinance is not in and of itself a federal constitutional violation. Owen v. Wainwright. supra: Oyler v. Boles, 368 U.S. 448, 450, 82 S.Ct. 501, 501, 7 L.Ed.2d 446 (1962). Merely because the Leon County Sheriff's Department devoted its resources to arrest the apparent primary organizer and manager of the establishment, this does not indicate anything more than a reasonable interest in enforcing the ordinance and effecting its stated purposes. ~ States v. Johnson. supra. Thus, petitioner's fourth argument fails to merit habeas corpus relief. V. Evidentiary Presumptions Petitioner contends that Leon County Ordinance 82-83, Secs. 8 and 9 are facially unconstitutional due to their inclusion of unauthorized evidentiary presumptions violative of the Fifth and Fourteenth Amendments. Section 8 of Ordinance 82-83 reads as follows: Presumptions: The following presumptions shall apply in actions brought for violation of this ordinance: (a) Any persoh who owns, maintains, operates, leases, or enters a commercial establishment where nude or semi-nude entertainment actually takes place on the premises in violation of this ordinance is presumed to be aware that said nude or semi- nude entertainment is taking place in the establishment. (Emphasis added). · 1400 (b) Any establishment which has received an occupational license to operate commercially is presumed to be a commercial establishment. Petitioner's initial argument with respect to Section 8 of the ordinance addresses the power or authorization of the Leon County Commission to enact evidentiary presumptions within local ordinances. Petitioner suggests that, first, the Florida Constitution specifically prohibits such action, and second, any power which is possessed by the county has been preempted by the state through passage of the Florida Evidence Code. Petitioner's argument is not persuasive. [8] As noted within the preceding sections, Florida counties are empowered to enact ordinances in accordance with delegated powers under the Twenty-first Amendment. These ordinances, like other enactments of a local legislative body, may include permissible presumptions and inferences. See, 23 Fla. Jur.2d ~ Sec. 11 (1980). The adoption of the Florida Evidence Code does not bar either state or local governments from including within legislation declarations that proof of one fact may create the presumption of another fact. The Florida state legislature, for example, has enacted numerous individual statutes, separate from the Evidence Code, that include evidentiary presumptions (e.g., Flu. Stat. 100.291; Flu. Stat. 658.94; Flu. Stat. 689.19). Negating petitioner's preemption argument, it is clear that the Florida Evidence Code sections relating to presumptions do not apply to criminal prosecutions as they affect only civil cases. Flu. Stat. 90.301(4). And finally, although Article III, Section 1 l(a)(3) of the Florida Constitution prohibits a "special or general law of local application pertaining to ... rules of evidence in any court", it is apparent from the text of that section, and the commentary thereafter, that the prohibition extends only to "rules of evidence" per Petitioner secondly argues that Section 8 of the Adult Entertainment Ordinance is facially arbitrary, irrational, and in violation of his Fifth and Fourteenth Amendment rights. There is no doubt that the Due Process Clause of the Fourteenth Amendment prohibits states from Copyright (c) West Publishing Co. 1996 No claim to original U.S. GoVt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. 11 (Fla.) 1988) Page I1 legislating evidentiary presumptions that relieve the prosecution of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). If a statute includes a mandatory rebuttable presumption which eliminates the state's affirmative burden of persuasion on an'element of the offense (and requires the defendant to persuade the jury not to make such a finding), that statute may be unconstitutional. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.3d 344 (1985). As Justice Breunan noted in Francis v. Franklin. the federal question in determining the constitutionality of such a presumption is whether a reasonable finder of fact could have understood the instructions relating to a statute to have created a mandatory presumption that shifts the burden of persuasion on an element of the offense to the defendant once the prosecution proves the predicate act. Id. Here, of course, jury instructions are not at issue since the petitioner entered pleas of nolo contendere; but a statute which eliminates the proseeution's affirmative burden of proving one of the elements of an offense is analyzed in accordance with the same principles as jury instructions that would be based on that statute. Miller v. Norvell, 775 F.2d 1572 (llth Cir. 1985), cert. denied. 476 U.S. 1126, 106 S.Ct. 1995, 90 L.Ed.2d 675. Since jury instructions are not in issue here, the actual words of the ordinance must be closely analyzed to determine the nature of the presumption and whether it is actually conclusive or rather a permissible inference. The undersigned recognizes, that had this conviction resulted from a jury verdict, the jury instructions presented may have been more detailed and explanatory than the exact language of the ordinance. Nevertheless, the presumption in Section 8(a) of the ordinance clearly allows that once the prosecution proves that a person is an owner, maintainer, operator, lessee or customer of an establishment where nude or semi-nude entertainment tak6s place, no further evidence need be '1401 iniroduced to prove that person's awareness or knowledge of that entertainment. Section 8(a) does not, however, explicitly preclude evidence in rebuttal, nor does it raise a presumption as to the ultimate fact in issue or an element of the offense. For an owner, maintainer, operator, lessee, or customer to violate the Leon County Ordinance, that person must "suffer or permit" any person on the premises to engage in nude or semi- nude entertainment or other specific prohibited acts enumerated within the ordinance. See Sec. 7(d), (g), (i), (j). Knowledge on behalf of the defendant is not an element of the offense--the prosecution must prove that the defendant 'suffered or permitted" the prohibited activity to present a prima facie case. ' [9] The undersigned finds that, as the statute stands, the challenged language does not explicitly create an unconstitutional burden-shifting presumption as to the element of *suffering or permitting', The term 'to suffer or to permit' implies knowledge, but requires more than knowledge; that element of the offense requires affirmative proof (direct or circumstantial) of the defendant's allowing, consenting, approving, acquiescing, agreeing, or failing to prevent the prohibited acts. (See. Black's Law Dictionary, 4th Ed., 1298 Cpermit"), 1601 ('suffer'). Quite simply, the presumption included within Section 8(a) does not improperly shift the burden of persuasion to the defense on an essential element of the offense as defined in the ordinance. See Franklin v. Francis. supra, and at 720 F.2d 1206, 1210 (llth Cir.1983). [10] In addition to the above, the undersigned finds that the presumptions included within Section 8 are neither irrational nor arbitrary. The mandatory rebuttable presumption in See. 8(a) allows that the proven fact (that the defendant is an owner, etc.) may be the only evidence of the presumed fact (that the defendant is *aware'), but it does not allow the presumption to be the only evidence as to an element of the offense. Under the circumstances giving rise to this particular presumption in this particular ordinance, it is not unreasonable to conclude, based upon common experience, that it is "more likely than not" that an owner, manager, operator, etc., would in fact "be aware" of 'what type of entertainment was being offered at his establishment. There is a sufficient rational connection between the fact proved and the fact presumed. See, Ulster County Court v. Allen, 442 U.S. 140, 166-67, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); Cosby v. Jones, 682 F.2d 1373, 1376-77 (llth Cir. 1982). [11] It is apparent that in the aforesaid arguments, petitioner challenges the facial constitutionality of Section 8. When that Section is examined in light of petitioner's individual situation, his claim of Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A.11 (Fla.) 1988) unconstitutionality of the ordinance as it applies to himself similarly fails. The record is clear that petitioner was the owner-manager of the business and had direct participation in planning the entertainment to be offered. (See Exhibit H within Doc. 21, and page 44, Doc. 21). No place in the record is there any indication that petitioner claimed he was unaware of'the nature of the nude and semi- nude activity, or that he did not "suffer or permit" it to occur. Even should Section 8 be found to be on its face an unconstitutional mandatory presumption, such constitutes only harmless error as it applies to this petitioner. See Miller v. Novell, 775 F.2d at 1576, citing Davis v. Kemp, 752 F.2d 1515, 1521 (1 lth Cir. 1985). As to Section 9 of Ordinance 82-32, little argument has been presented in support of his claim of unconstitutionality, and it is apparent that this claim as well is without merit. Thus the undersigned finds and recommends that Sections 8 and 9 of the Leon County Ordinance is not unconstitutional and the writ should be denied. Page 12 1. The motion for summary judgment in favor of the petitioner be denied. 2. The petition for writ of habeas corpus filed pursuant to the provisions of Title 28, United States Code, Section 2254, be denied. ' 3. The motion for preliminary injunction be denied. 4. The clerk of the court be directed to enter judgment accordingly. At Pensacola, Florida, this 27th day of January, 1987. FN* Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation. FN 1. Leon County Ordinance No. 82-32 specifically prohibits the following conduct: Section 7. Prohibhion: Title 28, United States Code, Section 636 and Local Rule 27(B) of this court permits any party to object to these proposed findings, recommendations or report within ten (10) days after being served with a copy thereof. Any objections shall be in writing and shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. Any objectionsl shall be filed with the clerk of the court and copies served on the '1402. magistrate and all other paities. Any party may respond to another party's objections within ten (10) days after being served with a copy thereof. Failure to object to this report and recommendation prior to the district court's acceptance and adoption of the report and recommendation limits the scope of appellate review of factual findings. U.S.v. Warren, 687 F.2d 347 (llth Cir. 1982); Hardin v. Wainwright, 678 F.2d 589 (5th Cir., Unit B, 1982); Nettles v. Wainwright, 656 F.2d 986 (5th Cir.1981). See also, Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Accordingly, it is now respectfully RECOMMENDED: (a) It shall be unlawful for any person to engage in nude or semi-nude entertainment in any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises. (b) It shall be unlawful for any female person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view that area of the human female breast at or below the areola thereof or to employ any device or covering which is intended to give the appearance of or simulate such areas of the female breast as described herein. (c) It shall be unlawful for any person, while on the premises of a commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises, to expose to public view his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage or to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 835 F.2d 1389, Fillingim v. Boone, (C.A. II (Fla.) 1988) Page 13 cleavage. (d) h shall be unlawful for any person owning, maintaining, operating or leasing any commercial establishment at which alcoholic beverages are, or are available to be, sold, dispensed, consumed, possessed or offered for sale or consumption on the premises to suffef or permit any person on the premises to engage in nude or semi-nude entertainment. (e) It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance to dance in such a manner as to simulate sexual activity with any patron, spectator, employee or other person not employed therein. (0 It shall be unlawful for any entertainer, performer or employee, while on the premises of a commercial establishment regulated under this ordinance, to sit upon or straddle the leg, legs, lap or body of any patron, spectator or other person therein, or to engage in or simulate sexual activity while touching or being touched by said patron, spectator or other person. (g) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any violation of subsections (e) or (f) of this ordinance. (h) It shall be unlawful for any person, while on the premises of a commercial establishment regulated under this ordinance, to use or be present in areas partitioned or screened' from public view that are designed to be occupied together or alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances. (i) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit the construction, maintenance or use of areas partitioned or screened from public view that are designed to be occupied together or alone by any person or persons on the premises of such establishment for sexual contact or private dancing performances. (,j) It shall be unlawful for any person owning, maintaining, operating or leasing a commercial establishment regulated under this ordinance to suffer or permit any outside advertisement which encourages, solicits, induces or promotes conduct or activities proscribed by this ordinance in such establishment. Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works. 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 1 · 197 476 So.2d 197 CITY OF DAYTONA BEACH, Petitioner, V. Leonard DEL PERCIO and Laura Iris Moore, Respondents. No. 65384. 476 So.2d 197, 10 Fla. L. Week. 458 Supreme Court of Florida. Aug. 30, 1985. Rehearing Denied Oct. 28, 1985. Bar owner and manager appealed their convictions, of violation of municipal ordinance prohibiting partial female nudity, to the Circuit Court where their convictions were affirmed. The District Court of Appeal granted certiorari, 449 So.2d 323, and reversed the convictions, holding that the ordinance was vague, overbroad, and not fairly enforceable. The Supreme Court, Ehrlich, J., held that: (1) ordinance prohibiting any female person from exposing ~to public view any portion of her breasts below top of areola" was permissible exercise of police power and power to regulate intoxicating liquors under the Twenty-First Amendment, and (2) bar owner and manager whose permitting female employees to violate the ordinance was clearly within the scope of legitimate regulation did not have standing to argue that ordinance was overbroad, since right of customers or others to dress as they pleased had little or no First Amendment implications. District Court decision quashed; case remanded. Overton, J., concurred in part and dissented in part and filed opinion. Boyd, C.J., dissented and filed opinion in which Adkins, J., joined, f be possible does not render a law void for vagueness. 2. OBSCENITY ¢=,2.5 281 .... 281k2 Power to Regulate; Statutory and Local Regulations ' 281k2.5 Particular regulations. Fla. 1985. Ordinance prohibiting ~any female person from exposing to public view any portion of her breast below top of areola~ was not void for vagueness, where plain meaning of statute was that no portion of breast directly or laterally below top of areola may be exposed to public view and where variant interpretations of ordinance were merely result of various courts attempting to limit reach of ordinance to save it from constitutional invalidity. 3. INTOXICATING LIQUORS ¢=,6 223 .... 223I Power to Control Traffic 223k5 States 223k6 Legislative regulation. Fla. 1985. State's power to regulate conditions in premises licensed for the sale of liquor is derived from its power to totally prohibit sales. 4. INTOXICATING LIQUORS 223 .... 223I Power to Control Traffic 223k5 States 223k6 Legislative regulation. Fla. 1985. Florida Constitution and statutes imbue a municipality with the state's police powers, including those under the Twenty-First Amendment, except those powers expressly preempted. U.S.C.A. Const. Amend. 21; West'S F.S.A. Const. Art. 8, Sees. 2(b), 5; West's F.S.A. Sec. 166.021(2, 3). 1. MUNICIPAL CORPORATIONS ~g:=:594(2) 268 .... 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k594 Ordinances and Regulations in General 268k594(2) Form and sufficiency in general. Fla. 1985. Fact that several interpretations of ordinance may 5. INTOXICATING LIQUORS ~ 11 223 .... 223I Power to Control Traffic 223k9 Delegation of Powers 223kl 1 Concurrent and conflicting regulations by state and municipality. Fla. 1985. Fact that power to ban liquor sales has been preempted by local option provision of Florida Constitution, West's F.S.A. Const. Art. 8, Sec. 5, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 2 does not mean that regulatory police powers derived from power to ban are also preempted. 6. MUNICIPAL CORPORATIONS ~g:=,592(1) 268 .... 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 2681{592 Concurrent and Conflicting Exercise of Power by State and Municipality 268k592(1) In general. Fla. 1985. Statute, West's F.S.A. Sec. 847.011 et seq., which expressly preempts county and municipal authority to regulate obscene exhibitions, does not preempt authority to regulate nonobscene exposure of female breast below top of the areola. 7. MUNICIPAL CORPORATIONS ~='121 268 .... 268IV Proceedings of Council or Other Governing Body 268IV(B) Ordinances and By-Laws in General 268k121 Proceedings to determine validity of ordinances. Fla. 1985. Bar owner and manager did not have standing to challenge as overbroad ordinance prohibiting 'any female person from exposing to public view any portion of her breast below top of areola," where topless dancers employed by owner and manager clearly fell within permissible scope of ordinance and interest of others sought to be protected, wearing revealing clothing, did not fall within scope of First Amendment freedom of expression. U.S.C.A. Const. Amends. 1, 14. 8. OBSCENITY ~='2.5 281 .... 281k2 Power to Regulate; Statutory and Local Regulations 281k2.5 Particular regulations. Fla. 1985. Ordinance which prohibited "any female person from exposing to public view any portion of her breast below top of areola" was not overbroad in forbidding socially acceptable attire on ground of chilling nominally expressive conduct, since prohibition applied to very narrow range of expression subject only to barest minimum of First Amendment protection. U.S.C.A. Const. Amend. 1. 9. CONSTITUTIONAL LAW ~:='90.4(5) 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 92k90.4 Obscenity and Pornography 92k90.4(5) Bars, nightclubs, and restaurants. Fla. 1985. Evidence that nude dancing in bars contributed to criminal activities, including solicitation for prostitution and lewd acts, was sufficient to support burden on free speech guaranteed by State Constitution of municipal ordinance prohibiting "any female person from exposing to public view any portion of her breasts below top of areola." West's F.S.A. Const. Art. 1, Sec. 4. 10.COMMERCE ~=,74.30 83 .... 83II Application to Particular Subjects and Methods of Regulation 8311(F) Intoxicating Liquors 83k74.30 Subjects and regulations in general. [See headnote text below] 10.INTOXICATING LIQUORS ~=:'6 223 .... 223I Power to Control Traffic 223k5 States 223k6 Legislative regulation. Fla. 1985. Section two of Twenty-First Amendment, U.S.C.A. Const. Amend. 21, superseded traditional commerce clause limitations on interstate commerce, permitted some classifications otherwise prohibited by Fourteenth Amendment, and modified balance between exercise of police power to ban and other provisions of Federal Constitution. U.S.C.A. Const. Art. 1, Sec. 8, cl. 3; Amend. 14. 11.CRIMINAL LAW 110 .... 110XXIII Judgment, Sentence, Commitment 110k983 Sentence of codefendants. and Final [See headnote text below] 11 .CRIMINAL LAW ~='986.2(6) 110 .... 110XXIII Judgment, Sentence, and Final Commitment 110k985 Formalities in Pronouncing Sentence 110k986.2 Matters or Evidence Considered Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 3 110k986.2(6) ~ Perjury or refusal to cooperate or admit guilt; lack of repentance; exercise of rights. Fla. 1985. Any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead '197 guilty and deters exercise of Sixth Amendment right to demand jury trial is unconstitutional, but disparate sentences between those of equal culpability are not per se indicative that harsher sentence is impermissible punishment for exercising right to trial. U.S.C.A. Const. Amends. 5, 6. 12.MUNICIPAL CORPORATIONS ,~=,643 268 .... 268X Police Power and Regulations 268X(B) Violation and Enforcement of Regulations 268k634 Criminal Prosecutions 268k643 Sentence and punishment. Fla. 1985. Bar manager charged with violation of ordinance who pleaded not guilty and challenged constitutionality of ordinance and claimed innocence even if ordinance was constitutional could not be fined upon trial court's judgment of guilt, where others charged with violation of same ordinance before same court who pleaded nolo contendere received no fines or penalties. U.S.C.A. Const. Amends. 5, 6. '199 Frank B. Gummey, III, City Atty., Robert G. Brown and Reginald E. Moore, Daytona Beach, for petitioner. Richard L. Wilson, Orlando, and Eric A. Latinsky, Daytona Beach, for respondents. EHRLICH, Justice. We have before us for review a decision of the Fifth District Court of Appeal, Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla. 5th DCA 1984), The decision expressly and directly conflicts with the decision in Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984), upholding an ordinance similar to the one invalidated in this case. We have jurisdiction. Art. V, Sec. (3)(b)(3), Fla. Const. portions of the ordinance include: (b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages. (d) No person maintaining, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages. City police issued a number of citations enforcing the ordinance, and respondents were among those cited under subsection (d). Del Percio was part owner of a lounge where a woman danced topless. Del Percio filed an unsuccessful motion to dismiss the charges against him in county court challenging the constitutionality of the ordinance, then pled nolo contendere reserving his right to appeal. Moore was in charge of a bar where the dancer wore flesh- colored tape over her areolae. She also unsuccessfully moved for dismissal on constitutional grounds, and was convicted in a non-jury trial. Both defendants appealed to the circuit court where their convictions were affirmed. The district court granted certiorari and reversed the convictions. The majority held that the ordinance was ~vague, overbroad, not fairly enforceable, and thus unconstitutional.' 449 So.2d at 323. The court found that the ordinance had been construed several different ways by the lower courts, demonstrating the vagueness of the language and distinguishing the case from other cases where similar language was found constitutional. It also found that, since all exposure of the lower part of the breast was prohibited, the ordinance was overbroad because socially acceptable attire such as swimsuits and low- cut evening gowns fell within the prohibition. We find that the ordinance is neither vague nor overbroad, and therefore quash the decision of the district court. VAGUENESS The City of Daytona Beach enacted ordinance 81-334, creating section 5-25 of the City Code prohibiting certain behavior in bars. The relevant The ordinance prohibits public exposure of a woman's breasts *below the top of the areola.~ Among the variant trial court interpretations of this Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 4 language noted by the district court in support of its finding of vagueness are the following: only the areola itself need be covered; the areola must be covered by ~a brassiere-type cover made of an opaque fabric which does not and cannot adhere directly to the breasts without the aid of supporting straps;" all portions of the breast below the top of the areola must be covered (this is the interpretation favored by the City); and all portions of the breast below the top of the *200 areola must be covered, with the exception of 'those types of attire which are commonly accepted by modern society." 449 So.2d at 324-25. In her dissent, Judge Sharp suggested the ordinance be narrowly construed as "barring only the exposure of the female breast encompassing the area of the areola and that portion of the breast directly below it." 449 So.2d at 331 (Sharp, J., dissenting) (emphasis in original). Judge Sharp's reason for suggesting this construction is enlightening--in order to save a law from constitutional invalidity, a court should seek to interpret the law to avoid the problem. (FNI) [1] The fact that several interpretations of an ordinance may be possible does not render a law void for vagueness. "Words inevitably contain germs of uncertainty' but when regulations "are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, [there is no] sacrifice to the public interest' ". Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L. Ed.2d 830 (1973) (quoting United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). [2] The district court found that the variant interpretations of the ordinance demonstrated it was vague and therefore unconstitutional. We conclude, on the other hand, that the plain meaning of the ordinance is clear, and that the variant interpretations are merely the result of various courts attempting to limit the reach of the ordinance to save it from constitutional invalidity. As we explain below, there is no need to limit the plain meaning of the ordinance because it raises no constitutional problem which may be addressed in this case. The plain meaning of the statute is, as the City suggests, that no portion of the breast directly or latera!ly below the top of the areola may be exposed to public view. OVERBREADTH Obviously, the clear meaning of the ordinance reaches many forms of socially acceptable attire. Indeed, there are probably many styles which would appear quite demure but which still manage to expose that which is forbidden here. However, the City has the power to regulate as it has, vis-a-vis the constitutional rights which may be raised by the parties in this case. a. Twenty-first Amendment In New York State Liquor Authority v. Bellanca, 452 U.S. 714, I01 S.Ct. 2599, 69 L.Ed.2d 357 (1981), the United States Supreme Court sustained the constitutionality of a state regulation similar to the one at issue here. (FN2) The basis of the challenge was that the first amendment protected nude barroom dancing. While the Court conceded that such behavior might involve the 'barest minimum" of first amendment protection, it concluded that the elected representatives of the State of New York have chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Given the ~added presumption in favor of the validity of the state regulation" conferred by the Twenty-first Amendment, California v. LaRue. 409 U.S. [109] at 118 [93 S.Ct. 390 at 397, 34 L. Ed.2d 342] [ (1972) ], we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Whatever artistic or communicative value may attach '201 to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-tim Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty-First Amendment makes that a policy judgment for the state legislature, not the court. 452 U.S. at 718, 101 S.Ct. at 2601. The power vested in the states by the twenty-first amendment thus outweighs a tenuous first amendment interest. However, respondents here argue that the City is in no position to exercise the state's twenty-first amendment powers. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 5 [3][4] The state's power to regulate conditions in licensed premises is derived from its power to totally prohibit sales: 'The state's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Bellanca, 452 U.S. at 717, 101 S.Ct. at 2601. While the City of Daytona Beach does not have the power to ban liquor sales, the powers of the state devolve to municipalities to 'exercise any power for municipal purposes except as otherwise provided by law." Art. VIII, See. 2(b), Fla. Const. ' 'Municipal purpose' means any activity or power which may be exercised by the state or its political subdividions." Sec. 166.021(2), Fla. Stat. (1983). "[T]he legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except: .... (c) Any subject expressly preempted to state or county government by the constitution or by general law." Sec. 166.021(3). The Florida Constitution and the statutes thus imbue the City with the state's full police powers, including those under the twenty- first amendment, except those powers expressly preempted. [5][6] There is no express preemption of the power to regulate behavior in bars. The fact that the power to ban liquor sales has been preempted by the local option provision of article VIII, section 5, Florida Constitution, does not mean that the regulatory police powers derived from the power to ban are also preempted. See City of Miami v. Kayfetz, 92 So.2d 798 (Fla. 1957). Likewise, chapter 847, Florida Statutes (1983), which expressly preempts county and municipal authority to regulate, inter alia, obscene exhibitions, does not preempt the authority to regulate nonobscene exposure of the female breast below the top of the areola. No argument can be made that the instant ordinance regulates obscene behavior, since to do so would destroy any claim to protection under the first amendment. InStead, as discussed infra, what is regulated is nonobscene behavior which very easily can degenerate into obscene behavior. Florida municipalities (and counties, see Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984)) thus have the authority to exercise the regulatory power of the twenty-first amendment recognized in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981). b. Application of the Overbreadth Doctrine [7] Given that the City of Daytona Beach stands in the same position as the State of New York, vis-a- vis exercise of twenty-first amendment power in the instant context, and given that the ordinance under review is for present purposes indigtinguishable from the New York statute, and given that the New York statute withstood the federal constitutional challenge, one would think that our task was completed. However, the Bellanca decision does not indicate that an overbreadth challenge was made. The Bellanca analysis presumed that the New York law addressed nude barroom dancing. The language of the New York statute and the Daytona Beach ordinance, on the other hand, is broader in scope, and would also appear to regulate customers. Respondents argue that the ordinance prohibits socially acceptable attire such as swimsuits and low- cut evening gowns, and therefore reaches beyond the behavior sought to be regulated. *202 A fundamental misconception underlies this argument, and that is that the respondents in this case have standing to challenge any burden the ordinance may have on customers. Quite simply, respondents lack such standing. To understand this position, we find it instructive to look to a seminal case in the area of overbreadth doctrine, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L. Ed.2d 830 (1973). The ~ Court explained the very limited circumstances under which the Court has altered its traditional rules of standing to allow a litigant clearly within the permissible scope of a statute to argue that the regulation is so broad that the constitutionally protected rights of others, not before the Court, are impermissibly restricted. In the first amendment area, this overbreadth argument is permitted because of the judicial assumption that an overbroad statute may well have a chilling effect on protected expression. An overbroad regulation may not be enforced until the scope of regulation is narrowed by a limiting construction or partial invalidation to remove the threat to protected expression. "Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort." 413 U.S. at 613, 93 S.Ct. at 2916. Even when first amendment rights are implicated, the impetus to apply the doctrine attenuates as the expression of the party seeking to invoke the doctrine 'moves from 'pure speech' toward conduct Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 6 and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws." Id. In this case, respondents' conduct is clearly within the scope of legitimate regulation, and the impetus to allow them to raise an overbreadth challenge is consequently attenuated. But the consideration which is fatal to any overbreath claim here is that in order for the respondents to be able to claim the ordinance is facially invalid because it impermissibly regulates socially acceptable attire of customers, the right of those customers to wear such attire must be protected under the first amendment. However, the right to dress as one pleases, vis-a-vis style and fashion, has little or no first amendment implications. In Richards v. Thurston, 424 F.2d 1281 (lst Cir. 1970), the court held that the right to wear long hair was protected as a liberty interest under the due process clause of the fourteenth amendment. The court wrote: We recognize that there may be an element of expression and speech involved in one's choice of hair length and style, if oniy the expression of disdain for conventionality. However, we reject the notion that plaintiff's hair length is of a sufficiently communicative character to warrant the full protection of the First Amendment. That protection extends to a broad panoply of methods of expression, but as the non-verbal message becomes less distinct, the justification for the substantial protections of the First Amendment becomes more remote. Nor do we see the logic of expanding the right of marital privacy identified in Griswold v. Connecticut, 381 U.S. 479 [85 S.Ct. 1678, 14 L.Ed.2d 510] (1965). Our rejection of those constitutional protections in this case is not intended to denigrate the understandable desire of people to be let alone in the governance of those activities which may be deemed uniquely personal .... [W]e believe that the due process clause of the Fourteenth Amendment establishes a sphere of personal liberty for every individual, subject to reasonable intrusions by the state in furtherance of legitimate state interests. 424 F.2d at 1283-84 (citations and footnotes deleted). The court concluded that the school which sought to shear the plaintiff's long hair had not met the burden of proving a legitimate state interest. Closer to home, in South Florida Free Beaches v. City of Miami, 548 F.Supp. 53, 60 (S.D.FIa. 1982), aff'd. 734 F.2d 608 (llth Cir. 1984), the court, citing to Richards. noted that "the right to dress as one pleases is among the panoply of liberties protected by the Fifth and Fourteenth Amendments," not the first amendment. And the United *203 States Supreme Court, while not addressing the right to dress ag one pleases, has repeatedly noted as axiom that conduct must bear some communicative content to fall within the penumbra of first amendment protection. See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); cf. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (not all conduct containing communicative elements is necessarily protected, and even if so the protection may be outweighed by sufficiently compelling state interest). We do not have before us, therefore, the question of whether a customer's liberty interest would prevail over the City's regulatory interest, or even whether mere passive attendance in a bar wearing socially acceptable yet revealing attire is within the scope of the ordinance, i.e. whether this would constitute an "expos[ure] to public view." [8] Absent the standing to raise the liberty interest of customers, the only overbreadth claim that might be raised by respondents is that females in socially acceptable attire, forbidden by the ordinance, who engage in nominally expressive conduct, be they waitresses, dancers, or customers entered in a wet T-shirt contest, might be chilled, inter alia, in their first amendment right to do so. However, the ordinance doesn't chill such behavior, it prohibits it. And this prohibition of a very narrow range of expression, subject only to the barest minimum of first amendment protection, seems well within the scope of permissible regulation found in the United States Supreme Court's ~ decision. The "strong medicine" of the overbreadth doctrine is not available to cure the chill. STATE CONSTITUTION Our analysis of the vagueness and overbreadth claims has been in light of federal constitutional protections. We do not find any greater protection under the Florida Constitution. However, assuming that in this context the protections of speech and liberty, article I, sections 4 and 2, respectively, of the Florida Constitution, are coextensive with the Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 7 equivalent federal protections, a question remains whether the twenty-first amendment or some other power may override these state protections. The New York Court of Appeals, ruling on remand from the United States Supreme Court decision in 9..e. llaag~ reversing its initial invalidation, again invalidated the New York law, but solely on state constitutional grounds. Bellanca v. New York State Liquor Authority, 54 N.Y.2d 228, 429 N.E.2d 765, 445 N.Y.S.2d 87 (1981), cert. denied. 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). The majority reasoned that New York's state constitutional protection of free speech was coextensive with the federal first amendment protection. Since the twenty-first amendment only applied to federal constitutional protections, the "added presumption in favor of the validity of the state regulation" conferred by the twenty-first amendment, California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), had no diminishing effect on the state speech protection. The New York court concluded that, since it had already held in its original decision that the first amendment protected nude barroom dancing, Bellanca v. New York State Liquor Authority, 50 N.Y.2d 524, 407 N.E.2d 460, 429 N.Y.S.2d 616 (1980), and the United States Supreme Court held only that the first amendment was diminished by the twenty-first amendment, that the state speech protection, coextensive with the first amendment and undiminished by the twenty-first, required invalidation of the statute. So.2d 916 (Fla. 2d DCA 1977), aff'd sub nom., Martin v. Board of County Commissioners of Lee County, 364 So.2d 449 (Fla. 1978), appeal dismissed. 441 U.S. 918, 99 S.Ct. 2024, 60 L.Ed.2d 392 (1979). While the Dexterhouse court found, contrary to our discussion above, that nude dancing contains no communicative element, we fmd that the minimal speech protection afforded nude barroom dancing does not alter the outcome. The record in this case is replete with the legislative findings of the city commission and supporting reports and documents provided by the police, indicating that nude dancing in Daytona Beach contributes to criminal activities. While the link between barroom nudity and un.related crime may be tenuous, the record here supports the conclusion that topless bars can and do serve as a center for solicitation for prostitution, by the dancers and by ~working women' who fmd bar customers amenable to business propositions. Performances may also lead to criminal acts of lewdness by dancers and by customers whose inhibitions have been lowered by the combination of alcohol and nudity. While some may question the wisdom of regulating crime such as this, which said detractors might term victimless, the decision lies with the legislative body, not the courts. [9] We therefore find that there is sufficient evidence to support the incidental burden on speech imposed by this valid exercise of the municipality's police power. Grand Faloon: Dexterhouse. We disagree with the New York court. Assuming that Florida's constitutional protection of nude barroom dancing is coextensive with the federal protections (and we are not inclined to find a greater state protection in this instance (FN3)), a municipality's *204 inherent police power, exercised for the public health and welfare, may outweigh the minimal speech protection at stake here. "The regulation of activity which has demonstrated a capacity to induce breaches of the peace is a traditional and legitimate subject for the exercise of a municipality's police power." Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 949 (llth Cir.), cert. denied. 459 U.S. 859, 103 S.Ct. 132, 74 L. Ed.2d 113 (1982). See also Board of County Commissioners of Lee County v. Dexterhouse, 348 So.2d 916 (Fla. 2d DCA 1977), aff'd sub nom., Martin v. Board of County Commissioners of Lee County v. Dexterhouse, 348 One may question our reliance on both the twenty- first amendment power and the police power to support our decision. We find it necessary to address both sources of power because the United States Supreme Court has not addressed the question of whether the police power alone is adequate to outweigh the federal first amendment interests at stake in a case such as this. While we believe that the police power is enough, the added weight of the twenty-first amendment comports with the Bellanca decision of the Supreme Court. [10] It should not be forgotten that the foundation of the twenty-first amendment power is the state's inherent police power to ban alcohol sales. When the states retrieved their power to ban in repealing the eighteenth amendment, they took more than they had given. Section 2 of the twenty-first amendment provides that "[t]he transportation or importation Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 8 into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.~ This section superseded traditional commerce clause limitations on interstate commerce, permitted some classifications otherwise prohibited by the. fourteenth amendment, and modified the balance between the exercise of the police power to ban and other provisions of the federal Constitution. California v. LaRue, 409 U.S. 109, 114-15, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). *205 The Bellanca Court, exercising judicial restraint, went no further than needed in finding a provision of the Constitution which outweighed the incidental first amendment interests involved in nude barroom dancing. We therefore will not attempt to second-guess the Supreme Court on the question of whether the police power alone is sufficient to outweigh federal constitutional interests in this context. We think it is, and so conclude regarding the equivalent state constitutional protection, but rely on the proven twenty-first amendment rationale for the federal question. DISPARATE SENTENCE Moore was fined $500. Del Percio and others charged under the ordinance pleaded nolo contendere and received no fines or penalties. Moore claims her punishment is based upon her exercise of her right to trial. In sentencing Ms. Moore, the trial judge stated: In this particular instance we have--rather I have before me the question of an individual who not only previously maintained that this is an unconstitutional ordinance, but, that in spite of that argument, nevertheless she is innocent of violating the ordinance. After hearing the testimony, I believe otherwise. I believe that she in fact was maintaining the premises in the absence of the owner at the time and that had sufficient authority over the premises to come within ihe purview of the statute. And, her testimony was inconsistent with the [charging] officer's and I must view both individuals and' their demeanor in deciding which one's being truthful and which is not, and, that I have taken ali these things into account and I believe that the punishment that I am imposing--I am finding her guilty and I am adjudicating her guilty; as I indicated, I am fining her $500. I will waive court costs in this particular instance. [11] "The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L. Ed.2d 138 (1968).~ Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979), quashed on other grounds. 390 So.2d 62 (Fla.1980). Disparate sentences between those of equal culpability, for instance when one defendant plea bargains for a lesser punishment while the other goes to trial, are not per se indicative that the harsher sentence is an impermissible punishment for exercising the right to trial. See, e.g., Weathington v. State, 262 So.2d 724 (Fla. 3d DCA), cert. denied. 267 So.2d 330 (Fla. 1972), ~ 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973), pet. for writ of habeas corpus denied sub nom., Weathington v. Wainwright, 486 F.Supp. 934 (S.D.FIa. 1979), aff'd. 618 F.2d 1183 (5th Cir. 1980). However, the defendant's exercise of the right to trial cannot be a factor in the sentencing decision. In the instant case, the trial judge's reasoning demonstrates that the exercise of the right to trial was a factor. There is nothing improper in a defendant challenging both the constitutionality of the law being enforced and his or her guilt based on the facts of the case. Here, Moore raised a valid question of whether her status as a fill-in manager, a position she assumed apparently as a gratuitous favor to the owner, subjected her to liability. The facts brought out in the brief trial showed she had sufficient authority to come within the scope of the ordinance. While the judge's discussion suggests he may also have imposed the sentence because he believed Moore lied during the trial, the proper method of imposing punishment for perjury would be through a separate prosecution. Conflicting evidence inheres in most trials, and to allow imposition of a harsher sentence merely because the trial judge believes the evidence supporting his finding of guilt, would create a catch~22--the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial. Compare Gallucci v. State, 371 So.2d 148 (Fla. 4th DCA 1979), cert. denied. 383 *206. So.2d 1194 (Fla. 1980), where the district court implied that a harsher sentence would be proper in response to a belligerent defendant whose Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 9 intransigent insistence on his innocence after a verdict of guilt and demand to be placed on probation indicated a lack of rehabilitation. Despite the justification, the district court ordered a new sentencing hearing based on the trial judge's statement that he was denying probation because "it is not my intention to try a case and then have the defendant come in and expect to be placed on probation, unless it is very., very. odd and weird circumstances. You can call it punishment for going to trial, if you want to. I don't look at it that way." Id. at 150 (emphasis in original). [12] In cases such as Gillman and Gallucci. the appellate court has remanded the case for a new sentencing hearing wherein the impermissible consideration of the exercise of the right to trial is removed. In this case, nothing other than the trial distinguishes Ms. Moore from the others convicted under the ordinance, and we therefore find as a matter of law that she may not be sentenced any more harshly than they. now interpreted by the majority, would be constitutional. I find, however, that the ordinance, as written, was clearly intended to have a distinctively different and much broader application as is illustrated by how it was enforced and construed by city officials before both trial and appellate courts. The vaguenes~ and broadness of the application of the ordinance is forcefully illustrated by the various interpretations given the ordinance by trial courts and the district court of appeal. It is clearly appropriate for courts to restrictively construe an ordinance to make it constitutional, but, in my view, it is quite a different matter to rewrite the ordinance by judicial fiat and by that action to change the known intent of the legislative body. I find it is the legislative responsibility of the city council to rewrite and enact a proper ordinance in this circumstance. BOYD, Chief Justice, dissenting. I respectfully dissent for the following reasons. CONCLUSION We would recapitulate that "[a]lthough some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the twenty-first amendment makes that a policy judgment for the" legislative body imbued with the power of the twenty-first amendment, "not the courts." Bellanca, 452 U.S. at 718, 101 S.Ct. at 2601. Accordingly, the decision of the district court is quashed and the case is remanded for action in accordance with~this opinion. It is so ordered. ALDERMAN, McDONALD and SHAW, JJ., concur. OVERTON, J., concurs in part and dissents in part with an opinion. BOYD, C.J., dissents with an opinion, in which ADKINS, J., concurs. OVERTON, Justice, concurring in part, dissenting in part. I fully agree that the ordinance, if written as it is The ordinance is unconstitutionally ambiguous. I find no rational basis to justify the enactment or enforcement of the ordinance. The ordinance fails to meet current constitutional standards as del'reed by the federal and state courts relating to self- expression and personal conduct. ADKINS, J., concurs. FN1. In support of this judicial obligation, Judge Sharp cited to Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); State v. Cotney, 104 So.2d 346 (Fla. 1958); Foley v. State, 50 So.2d 179 (Fla. 1951). FN2. The statute provided: "No retail license for on premises consumption ... shall suffer or permit any female to appear on licensed premises in such manner or attire as to expose to view any portion of the breast below the top of the areola, or any simulation thereof." N.Y. Alco. Bev. Cont. Law Sec. 106.6.a. (McKiuney Supp. 1980-1981). FN3. Indeed, the dissenters to the New York decision on remand in Bellanca II objected to the majority's decision in part because they did not agree *with the development of a separate [state constitutional] jurisprudence relative to the right of freedom of speech, in the absence of a legally Copyright (c) West Group 1998 No claim to original U.S. Govt. works 476 So.2d 197, City of Daytona Beach v. Del Percio, (Fla. 1985) Page 10 compelling reason for doing so." Bellanca v. New York State Liquor Authority, 54 N.Y.2d at 238, 429 N.E.2d at 770, 445 N.Y.S. at 92 (Gabrielli, J., dissenting). The dissenters felt the twenty-first amendment, while not modifying the state constitution, grants the states broad authority sufficient to outweigh state free speech protections. We conclude that the twenty-first amendment is incapable of granting the states any greater police power than they originally had, as against state constitutional protections, but that the amendment did intrude into other areas of the federal Constitution, as we discuss iagt~ Copyright (c) West Group 1998 No claim to original U.S. Govt. works