Barnes, 501 U.S. at 569, 111 S.Ct. at 2462 (finding
constitutional the enactment of a public indecency statute
designed to protect morals and public order, in part, because
"[t]he traditional police power of the States is defined as the
authority to provide for the public health, safety, and morals,
and we have upheld such a basis in legislation,"
notwithstanding the complete lack of legislative history for
the indecency statute); Stringfellow's, 91 N.Y.2d at 397, 671
N YS.2d at 414, 694 N.E.2d 407 (finding from "amendments'
legislative history that ameliorating the negative social
consequences of proliferating adult uses was the City's only
goal"); Town of Islip v. Caviglia, 141 A.D.2d 148, 160, 532
N YS.2d 783, 790 (2d Dep't 1988)(finding subject ordinance "is
not aimed at the content of the books but, rather, at the
effect of the bookstore upon the community and its quality of
Still, an examination of the Code itself and the Public
Hearing held to discuss the legislation is necessary. As
reproduced supra, Article XXXI § 213-376(B) defines the
"purposes and considerations" of the Adult Use District
ordinance. "Adult Uses" are defined to include the following
businesses: (1) adult bookstore; (2) adult drive-in theater;
(3) adult entertainment cabaret; (4) adult motel; (5) adult
theater; (6) massage establishment; and (7) peep show. Code §
213-377. The common defining characteristics are that the
business excludes any minor by reason of age while providing
some form of adult entertainment.
At the Public Hearing, the Town Council presided over a
public meeting and fielded questions from residents who
expressed a wide variety of concerns including the impact of
the quality of development of young people and their protection
from the influence of outside forces, public morality, property
values, the breadth of the proposed legislation and its
potential impact on book and video stores. In response to a
question concerning video stores, Supervisor Noto answered, "I
think we've got to remember the major concern was the exposure
to our children, to the teenagers, the fact that what those
elements bring into the residential community now exposes our
families as well as our as our children again." (Hearing at 7.)
Later on he indicated "basically what's happening is to keep it
from being in a residential community, or even close to it, or
a main throughfares where children will be exposed to it and if
its going to happen, let it happen somewhere where it's less
obscene to the community." (Hearing at 8.)
Although a majority of the public residents in attendance may
have preferred to ban all adult entertainment in the community,
the purpose of the Code section in issue was intended to
primarily address the perceived consequential adverse effects
that arise in the areas adjoining adult use businesses, with
particular regard for the vulnerable youth. In analyzing the
predominant purpose, "courts do not invalidate a municipal
zoning ordinance simply because one or more legislators sought
to suppress protected suppression. . . . it is the motive of
the Legislature, not individual legislators, that is
controlling." Town of Islip, 73 N.Y.2d at 553 n. 2, 542
N YS.2d at 143 n. 2, 540 N.E.2d 215.
Based on the purposes and considerations of the Code section
at issue, and the Hearing preceding its enactment, the Court
concludes that the Town's predominant purpose was concerned
with the consequences, and not the content, of the protected
activity. Accordingly, the Code is analyzed as a
"content-neutral" time, place and manner regulation.
B. Substantial Governmental Interest Analysis
Plaintiff's primary contention is that the Town lacked a
proper predicate for the adoption of the subject legislation,
and additionally asserts that the legislation was enacted for
an improper purpose. Plaintiff asserts that a municipality may
not enact a regulation for which there was no pre-enactment
evidence on the record
to support its interest. 11126 Baltimore Blvd. v. Prince
George's County, 886 F.2d 1415, 1425 (4th Cir. 1989), vacated
on other grounds, 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261
(1990). Arguing that the assertion of a state interest in not
enough, rather, the state interest must have a basis in fact
that was considered in passing the ordinance. Basiardanes v.
City of Galveston, 682 F.2d 1203, 1215 (5th Cir. 1982)(citing
Schad, 452 U.S. at 73, 101 S.Ct. at 2184-85). In addition,
Plaintiff avers that a municipality may not just merely mimic
another ordinance that has passed constitutional muster in
another context. Krueger v. City of Pensacola, 759 F.2d 851,
855 (11th Cir. 1985); Basiardanes, 682 F.2d at 1213.
Plaintiff's reliance on Basiardanes and Krueger is misplaced
in light of the Supreme Court's clear pronouncement in Renton.
A city, in enacting a time, place and manner regulation, must
establish that a substantial government interest exists in
support of its ordinance. Renton, 475 U.S. at 51, 106 S.Ct. at
928. Plaintiff suggests that Defendant's failure to undertake
its own study to substantiate the legislation is fatal.
However, Renton clearly countenances reliance on the experience
of other cities, stating, "[t]he First Amendment does not
require a city, before enacting such an ordinance, to conduct
new studies or produce evidence independent of that already
generated by other cities, so long as whatever evidence the
city relies upon is reasonably believed to be relevant to the
problem that the city addresses." 475 U.S. at 51, 106 S.Ct. at
931; see also Buzzetti v. City of New York, 140 F.3d 134, 140
(2d Cir. 1998)(finding "reliance on studies from a variety of
other areas of the country was well-placed"). Furthermore,
local legislative bodies can take notice of or assume matters
of common knowledge or experience. See Wall Distributors, Inc.
v. City of Newport News, 782 F.2d 1165, 1169 n. 7 (4th Cir.
1986)(upholding the passage of regulations where at the time of
enactment the legislative body had little more before it than
expressions of concern by citizens and government officials).
The New York Court of Appeals recently underscored this
sentiment by declaring "[n]on-empirical, anecdotal evidence
that is comprised of the local studies does not render those
studies worthless. In the proper context, anecdotal evidence
and reported experience can be as telling as statistical data
and can serve as the legitimate basis for finding negative
secondary effects, particularly where, as here, the
non-empirical information is extensive and indicative of a
clear relationship between adult uses and urban decay."
Stringfellow's, 91 N.Y.2d at 400, 671 N.Y.S.2d at 416,
694 N.E.2d 407.
At the Hearing, a citizen shared his observations made while
picketing an adult bookstore in the community, stating:
we have witnessed prostitutes soliciting and
selling their services in open view on Sunrise
Highway. Only women who are desperate and drug
dependent can be involved in such activities in
this day of 85 sexually transmitted diseases.
Because these women are drug dependent, the crack
dealers must be always nearby to feed their habit.
While the pockets of the porno viewer are filled
with cash, our property values decrease because of
the cheap, honky tonk appearance of our town.
(Hearing at 4.) Whether this observation is meretricious is of
no moment, because legislators may act on various unprovable
assumptions as "[n]othing in the Constitution prohibits a State
from reaching such a conclusion and acting on it legislatively
simply because there is no conclusive evidence or empirical
data." Paris Adult Theatre I v. Slaton,