Full opinion text
ORDER BUCKLEW, District Judge. This Cause is before the Court on the following motions: (a) Defendants Connie Kone, David T. Welch and Paul V. Yingst’s (in their individual capacities) (collectively referred to-as the “Council Defendants”) Motion for Summary Judgment (Doc. No. 98, filed November 17,1995); (b) Council Defendants’ Motion for Permission to File Reply Memorandum (Doc. No. 101, filed December 12,1995); (c) Plaintiffs’ Motion for Summary Judgment (Doc. No. 113, filed May 21, 1996); (d) Defendant City of St. Petersburg and Defendants Fischer, Stephens and Davis’ (in their official capacities) (collectively referred to as the “Defendants”) Motion for Summary Judgment (Doc. No. 115, filed May 22,1996); and (e) Plaintiffs Centerfold Club, Inc., Joseph Civith and 3405, Inc.’s Motion for Summary Judgment (Doc. No. 121, filed May 22,1996). Factual Background and Overview of Motions This action consists of three separate cases consolidated for administrative purposes. The original action was commenced by Centerfold Club, Inc. against the City of St. Petersburg, Mayor David Fischer and Chief of Police Darrell Stephens (Doc. No. 1). Generally, the action alleges that the City’s adoption and threatened enforcement of the Adult Use Zoning Regulation, adopted by Ordinance 72-G and codified as 29-224, et seq., violates the Plaintiffs constitutional rights. See Doc. No. 1, at ¶ 25. The second action was filed by Joseph Civith d/b/a “Foxy Lady,” Dou-Han, Inc. d/b/a “Sixty Sixer Video Adult Center,” San-charger, Inc. d/b/a “The Blue Garter,” and John Doe against the St. Petersburg City Council, the City of St. Petersburg, Chief of Police Darrell Stephens, City Attorney Michael Davis and State Attorney Bernie McCabe in their official capacities. See Doc. No. 1, filed in 9tU152-CIV-T-24(B). The action generally alleges that adoption of Ordinance 72-G violates the Plaintiffs’ constitutional rights. The final action, as amended, was filed by 3405, Inc. d/b/a “The Wharehouse” against the City of St. Petersburg and City Council Members Connie Kone, David T. Welch and Paul V. Yingst in their individual capacities. This action alleges that the City’s Adult Use Zoning Regulation violates the Plaintiffs constitutional rights. In regard to the individual Council Members. Plaintiff alleges that their decision to deny Plaintiffs request for a zoning variance violates Plaintiffs constitutional rights. There are four motions for summary judgment before the Court. The first was filed by Defendants Kone, Welch and Yingst in their individual capacities against Plaintiff 3405, Inc. in case number 94-160-CIV-T-24(B). This motion asserts the defense of absolute or qualified immunity. See Doc. No. 98. Plaintiffs Dou-Han, Inc., 3405, Inc., Centerfold, Inc., and Sancharger, Inc. (i.e. all Plaintiffs except Joseph Civith) filed the second motion in case number 94-152-CIV-T-24(B). This motion contends that the Ordinance is unconstitutional because (1) the Ordinance does not have an adequate predicate for valid adoption and/or (2) the Ordinance is not the least restrictive means possible to accomplish the alleged objectives. See Doc. No. 113. Defendants City of St. Petersburg, Mayor Fischer, Police Chief Stephens and City Manager Davis, in their official capacities, filed the third motion. This motion applies to all three eases. Defendants argue that as a matter of law the Ordinance is valid and constitutional. The motion divides into ten parts. Two of the parts attack the standing and position of the various Plaintiffs. The remaining eight parts undermine the various claims asserted by the Plaintiffs. Specifically, Defendants argue that: (1) the Ordinance has a Proper Motive and Legislative Purpose (i.e. Count I of Civith, et al.’s complaint and Count IX of 3405, Inc.’s amended complaint); (2) the Ordinance has a Proper Predicate (i.e. Count I of Civith, et al.’s complaint and Count VIII of 3405, Inc.’s amended complaint); (3) the Ordinance provides for Adequate Alternative Avenues of Communication (i.e. Count II of Civith, et al.’s complaint and Count IV of 3405, Inc.’s amended complaint); (4) the Ordinance does not constitute a “Taking” Without Compensation or Equitable Estoppel (i.e. Counts IV and V of Civith et al.’s complaint and Count VII of 3405, Inc.’s amended complaint); (5) the Ordinance is not Overbroad or Vague (i.e. Counts VII and VIII of Civith et al.’s complaint and Count VI of 3405, Inc.’s amended complaint); (6) the Ordinance does not violate the Equal Protection Clause (i.e. Count VI of Civith, et al.’s complaint and Count XI of 3405, Inc.’s amended complaint); (7) the Ordinance is not a Prior Restraint and the Ordinance does provide for Procedural Safeguards (i.e. Count III of Civith, et al.’s complaint and presumably Counts I, V, X and XII of 3405, Inc.’s amended complaint); and (8) the Ordinance is not a Bill of Attainder or Ex Post Facto Law (i.e. Count IV of Civith, et al.’s complaint). See Doc. No. 115. The final motion was filed by Plaintiffs Centerfold, Civith and 3405 in ease numbers 94-93-CIV-T-24(B) and 94-152-CIV-T-24(B). This motion maintains that the Ordinance is unconstitutional because it does not provide for adequate alternative avenues of communication. See Doc. No. 121. In sum, while there are four motions before the Court raising several issues, the motions are duplicative in part. As a result, there are actually only eight issues before this Court: (1) Is the Ordinance a valid content-neutral time, place and manner restriction? (i) Does the Ordinance serve a substantial governmental interest? (ii) Does the Ordinance allow for reasonable alternative avenues of communication? (in) Is the Ordinance narrowly tailored? (2) Does the enforcement of the Ordinance constitute a “Taking” in violation of the Constitution? (3) Is the enforcement of the Ordinance barred by the Doctrine of Equitable Estoppel? (4) Is the Ordinance Overbroad or Vague? (5) Does the Ordinance violate the Equal Protection Clause of the Constitution? (6) Is the Ordinance an Unconstitutional Prior Restraint and does it provide Procedural Safeguards? (7) Is the Ordinance a Bill of Attainder or Ex Post Facto law? (8) Do the Council Defendants enjoy Qualified Immunity? After initially reviewing the motions and responses, the Court set this matter for a hearing. In the notice of hearing, the Court noted those issues which it wanted addressed. The hearing was conducted on September 10, 1996. Mr. Winn (Counsel for all the Defendants), Mr. Dolan (Counsel for Plaintiff 3405) and Mr. Lirot (Counsel for Plaintiffs Dou-Han and Sancharger) were present. Mr. Dolan also stood in for Mr. Athanason (Counsel for Plaintiff Centerfold). The hearing narrowed this case in two specific ways. First, the issue of standing was addressed and is hereby resolved. At the hearing, Counsel for the Plaintiffs advised the Court that Plaintiffs Civith and Centerfold had voluntarily closed their businesses and that the complaints did not allege any forced closures by the City’s Nuisance Abatement Board. See Doc. No. 144 at 6 lines 22-23, 7 lines 17-24 and 8 lines 1-9. In order for this Court to have jurisdiction there must be a “ease or controversy” before the Court. It is not enough that a “real controversy existed when the lawsuit was filed, the controversy must be a ‘live’ controversy throughout all stages of the case.” Chiles v. Thornburgh, 865 F.2d 1197, 1202 (11th Cir.1989) (citing Burke v. Barnes, 479 U.S. 361, 362-64, 107 S.Ct. 734, 735-37, 93 L.Ed.2d 732 (1987)). In light of the statements made by Counsel for the Plaintiffs at the hearing, this Court finds that Plaintiffs Civith and Centerfold lack standing to bring this action. No “live” controversy exists as to them. Accordingly, the action by Plaintiff Centerfold, Inc. against Defendants City of St. Petersburg, Mayor Fischer and Police Chief Stephens (Case No. 94-93) is dismissed. Additionally, the action filed by Plaintiff Civith (Case No. 94-152) is dismissed. The case still remains as filed by Plaintiffs Dou-Han and Sancharger against Defendants City of St. Petersburg, Police Chief Stephens and City Attorney Davis. Second, the hearing brought to the forefront the issue of adequate alternative avenues of communication. The parties conceded that the primary issue before the Court is the constitutionality of the Ordinance. If the Ordinance was found to be unconstitutional, the only remaining issue for trial would be the nominal damages sustained by Plaintiffs Dou-Han, Sancharger and 3405, Inc. In arguing the constitutionality of the Ordinance, the parties further stressed the issue of adequate alternative avenues of communication. In their respective motions, both the Plaintiffs and the Defendants state there are no genuine issues of material fact existing to preclude the entry of summary judgment. See Doc. Nos. 115 & 121. Each party contends that as a matter of law there are adequate or inadequate alternative avenues of communication. The Court adjourned the September 10, 1996 hearing and reviewed the submitted materials concerning the issue of adequate alternative avenues of communication. In reviewing the materials, it became evident that the issue turned on the affidavits of Plaintiffs’ land planning expert Bruce McLaughlin and Defendants’ land planning expert Ralph E. Stone. Accordingly, the Court set this matter for an evidentiary hearing. The hearing was conducted on November 21,1996. Summary Judgment Standard The Eleventh Circuit has discussed • the standard for granting summary judgment: Federal Rule of Civil Procedure 56(c) authorizes summary judgment when all “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” F.R.C.P. 56(e). Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (1993), reh’g and reh’g en banc denied, 16 F.3d 1233 (11th Cir.1994). The Eleventh Circuit recognized the seminal ease concerning summary judgment, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), by highlighting the following passage: [T]he plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Hairston, 9 F.3d at 918. Finally, the parties’ respective burdens and the Court’s responsibilities were outlined: The party seeking summary judgment bears the initial burden to demonstrate to the district court the basis for its motion for summary judgment and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions which it believes show an absence of any genuine issue of material fact. Taylor v. Espy, 816 F.Supp. 1553, 1556 (N.D.Ga.1993) (citation omitted). In assessing whether the movant has met this burden, the district court must review the evidence and all factual inferences drawn therefrom, in the light most favorable to the non-moving party. Welch v. Celotex, 951 F.2d 1235, 1237 (11th Cir.1992); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987). If the movant successfully discharges its burden, the burden then shifts to the non-movant to establish, by going beyond the pleadings, that there exist genuine issues of material fact. Matsushita Electric Industrial Co. v. Zenith Radio Corp.[,] 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Applicable substantive law will identify those facts that are material. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. Id. For factual issues to be considered genuine, they must have a real basis in the record. Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56. It is not part of the court’s function, when deciding a motion for summary judgment, to decide issues of material fact, but rather determine whether such issues exist to be tried. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. The Court must avoid weighing conflicting evidence or making credibility determinations. Id. at 255, 106 S.Ct. at 2513-14. Instead, “[t]he evidence of the non-movant is to be believed in his favor.” Id. Where a reasonable fact finder may “draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment.” Barfield v. Brierton, 883 F.2d 923, 933-934 (11th Cir.1989) (citation omitted). Id. at 918-19. See Mulhall v. Advance Sec. Inc., 19 F.3d 586, 589-90 (11th Cir.1994); Howard v. BP Oil Co., 32 F.3d 520, 523-24 (11th Cir.1994). Discussion I. Is the Ordinance a valid content-neutral time, place, and manner restriction? A. Improper Predicate and Motive— Does the Ordinance further a Substantial Government Interest? Count I of Plaintiffs Civith, et alls complaint alleges that the Ordinance is unconstitutional because it lacks a proper predicate. Specifically, paragraphs 50 and 51 allege: 50. The ordinance at issue herein as applied to the real property, business owned and operated by Plaintiffs, and Plaintiffs expressive and assoeiational rights, is arbitrary and capricious, was adopted without substantial competent evidence to support its application to the Plaintiffs, and bears no reasonable relationship to the lawful exercise of police power, thereby denying Plaintiffs substantive due process in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and the due process clauses of the Florida Constitution. 51. During the public hearings held pursuant to the adoption process of the Ordinance, no substantial competent evidence of local data was introduced by Defendants to indicate that adult uses had any greater impact than any other specific use in the subject areas of the CITY as pertains to the recitals contained in the Ordinance. Counts VIII and IX of Plaintiff 3405, Inc.’s amended complaint allege that the Ordinance is unconstitutional because it lacks a proper predicate and was improperly motivated. Paragraphs 85 and 86 of Count VIII allege: 85. Section 229-224, et seq., City of St. Petersburg Code, as applied to the business owned and operated by Plaintiff was adopted on the basis, not of competent, substantial evidence, but on the basis of innuendo, hearsay, myths and fabrications. The so-called “studies” upon which the City purported to rely in the adoption of its Adult Uses Zoning Regulations are seriously flawed, and are not academically, professionally or scientifically sound. 86. In contrast, owners of other Adult Uses in the City provided Defendant, City, with competent, substantial evidence that the alleged predicates to the Adult Use Zoning Regulations are based on allegations that are not supported in fact or at law. Paragraphs 89 through 93 of Count IX allege that the Defendants’ motive in enacting the Ordinance was to attack the content of the businesses in question and to secure the most restrictive regulations. Thus, paragraph 94 alleges that the Ordinance was adopted with improper motives. Both Plaintiffs and Defendants have moved for summary judgment on the issues of improper predicate and improper motive. Plaintiffs’ motion (Doc. No. 113) contends that “there was no competent, substantial evidence before the City that allowed the City to reasonably believe that Adult Uses in the City of St. Petersburg caused adverse secondary effects. In the absence of at least reasonable belief that the City’s Adult Uses were causing adverse secondary effects, the City’s Adult Use Zoning Ordinance is unconstitutionally content-based.” Doc. No. 113, at ¶¶ 2-3. The motion also argues that the Ordinance is unconstitutional because it is not “the least restrictive means.” Defendants’ motion (Doc. No. 115) contends that the ordinance is properly analyzed as a content-neutral time, place and manner restriction because “the Ordinance was designed to mitigate the secondary affects (sic) of adult use establishments and the City’s reliance on studies conducted by other governments is proper and need not be based solely on local experience.” Doc. No. 115, at ¶ 2. Defendants’ memorandum in support of the motion argues that any inquiry into the motivation of the City Council is improper. Doc. No. 116, at 8. As a threshold concern, the Court notes that Plaintiffs’ argument raises two issues. First, to the extent that Plaintiffs argue that the Ordinance is not a content-neutral restriction because the City failed to prove that adult businesses cause secondary effects, Plaintiffs’ “argument impermissibly confuses distinct aspects of the City of Renton test. Content neutrality focuses on the City’s purposes in enacting the Ordinance.” ILQ Inv., Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994). As the Supreme Court noted in City of Renton, et al. v. Playtime Theatres, Inc., et al., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986), where the ordinance “is aimed not at the content ..., but rather at the secondary effects,” the ordinance is content-neutral. See Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3d Cir.1997); ILQ Inv., Inc., 25 F.3d at 1416 (holding that where ordinance’s purpose is “to lessen undesirable secondary effects attributable to those businesses, such as increased crime, lower property values, or deteriorating residential neighborhoods,” the ordinance is evaluated as a content-neutral time, place and manner restriction); Ambassador Books & Video, Inc. v. City of Little Rock, Ark., 20 F.3d 858, 861 (8th Cir.1994); Holmberg v. City of Ramsey, 12 F.3d 140, 143 (8th Cir.1994) (en banc) (stating that “[i]f the City’s ordinance serves a purpose unrelated to the expressive content of the sexually oriented businesses the City wants to regulate, the ordinance is deemed neutral, even though the ordinance may affect those businesses incidentally”); International Eateries of America, Inc. v. Broward County, Fla., 941 F.2d 1157, 1162 n. 3 (11th Cir.1991) (noting that in determining whether ordinance is content-neutral, a court should “glean[] the government interest at stake from the ordinance itself rather than implying one where none is evident in the ordinance”); Alexander v. City of Minneapolis, 928 F.2d 278, 282 (8th Cir.1991) (holding that because “ordinance does not ban adults-only businesses altogether, the District Court ... correctly treated [it] as a form of time, place and manner regulation”). However, a determination that an ordinance is content-neutral does not necessarily mandate a conclusion that the ordinance is constitutional. Rather, as a content-neutral restriction, the ordinance must pass the “intermediate scrutiny” test. Phillips, 107 F.3d at 172. The ordinance must (1) serve a substantial government interest; (2) allow for reasonable alternative avenues of communication; and (3) be narrowly tailored to serve the governmental interest at issue. International Eateries, 941 F.2d at 1161-62. Thus, Plaintiffs’ argument that the Ordinance is not content-neutral because it lacks a proper predicate is, in fact, an argument that the Ordinance does not serve a substantial governmental interest. As the Third Circuit noted in Phillips, it is the legislature’s burden to prove that the ordinance is constitutional. “[I]t must come forward with ‘evidence of incidental adverse social effect that provides the important governmental interest justifying reasonable time, place and manner restrictions on speech or expressive conduct.’” Phillips, 107 F.3d at 173 (quoting Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 133 (3d Cir.1993)). The legislature “shoulders the burden of building an evidentiary record that will support a finding that it reasonably believed [the governmental interests] would be jeopardized in the absence of an ordinance and that this ordinance is reasonably tailored to promote those interests.” Id. at 173. The second threshold issue concerns Plaintiffs’ argument that there must be “adverse secondary effects established by competent substantial evidence” in order for the Ordinance to be constitutional. Doc. No. 113, Memorandum in Support, at 6. As the Eleventh Circuit in International Eateries observed, the Renton opinion only requires that “the enacting body must have a reasonable basis for its belief that the harm to be protected against in fact exists.” International Eateries, 941 F.2d at 1162 (emphasis added). Accordingly, while the burden rests with the Defendants to “justify” the Ordinance by establishing a “link between the regulation and the asserted governmental interest,” the link need only be supported by a reasonable belief and not by substantial competent evidence. Renton, 475 U.S. at 51-52, 106 S.Ct. at 930-31; Phillips, 107 F.3d at 173. Plaintiffs’ motion seems to concede this when it states, “Ultimately, the end result of the authority cited above indicates unequivocally that for the City of St. Petersburg Adult Use Zoning Ordinance to be Constitutional, there must be a reasonable belief that it is designed to combat adverse secondary effects.” Doe. No. 113, Memorandum in Support at 5 (emphasis added). The instant Ordinance does not ban all adult use establishments. Rather, the Ordinance regulates the location of such establishments. Adult use establishments are permitted in commercial, central business district and retail/office/residential zoning and land use districts. Within these areas, however, adult use establishments must be located at least 700 feet away from any property within a residential district, any portion of a mixed use zoning district developed and utilized as a non-accessory residential use, and/or any church, school, child care facility or public park. Moreover, Section 29-224(a) provides that the purpose of the Ordinance is: to establish reasonable and uniform regulations that will protect the health, peace, safety, and general welfare of the people of St. Petersburg. The provisions of this section (ordinance), acting alone, or together with other applicable ordinances of St. Petersburg have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult material. Similarly, it is not the intent nor effect of this section (ordinance) to restrict or deny access by adults to adult materials or expression protected by the First Amendment, or to deny access by distributors and exhibitors of adult uses to their intended market. Accordingly, this Court finds that the Ordinance is a content-neutral time, place and manner restriction and turns to the issues of improper motive and substantial governmental interest. Plaintiffs’ argument concerning improper motive is easily addressed. Having reviewed the record, particularly the transcripts of the hearings held by the City prior to the enactment of the Ordinance (Doc. No. 29, Vol. 10), this Court finds that the Defendants’ predominate concern in enacting the Ordinance was the secondary effects of adult establishments. Following the lead of the Supreme Court in United States v. O’Brien, 391 U.S. 367, 383-84, 88 S.Ct. 1673, 1682-83, 20 L.Ed.2d 672, and City of Renton, the Court, absent a finding other than noted above, will not inquire into the alleged improper motivations of the Defendants. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive .... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. City of Renton, 475 U.S. at 48, 106 S.Ct. at 929 (quoting United States v. O’Brien, 391 U.S. at 383-84, 88 S.Ct. at 1682-83). Accordingly, Plaintiffs’ motion on the issue of improper motive is denied and Defendants’ motion is granted. Summary judgment is entered in favor of the Defendants as to Count IX of Plaintiff 3405, Inc.’s amended complaint. This count is dismissed. The Court also finds that the Ordinance is designed to serve a substantial governmental interest and that the City reasonably believed that the studies of other cities upon which it relied were relevant to the problems the City addressed in the Ordinance. Pursuant to Renton, the City is entitled to rely on the experiences of other cities. “The 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.” Renton, 475 U.S. at 51-52, 106 S.Ct. at 931. Although Plaintiffs admit that the City relied upon ten studies conducted by other cities, Plaintiffs argue that Renton does not allow a city to rely on the studies of other cities where the ordinance in question applies retroactively and/or where the city in question already had an existing adult uses ordinance upon which it could base its ordinance. Doc. No. 113 at 4. This Court rejects Plaintiffs’ argument. Nothing in the Renton or International Eateries opinions suggests that a city cannot rely on the studies of other cities in enacting an adult uses ordinance where the city in question already had such an ordinance. Rather, under Renton, “the enacting body must have a reasonable basis for its belief that the harm to be protected against in fact exists. The City need not conduct its own studies to make this determination.” International Eateries, 941 F.2d at 1162. Plaintiffs further argue that the record fails to support a “reasonable belief’ that the secondary effects of the adult use establishments exist because there is no “substantial competent evidence” to support such a belief. As previously noted, nothing in Renton or the International Eateries opinions indicate that the City’s decision must be supported by substantial competent evidence. Additionally, the Court notes that prior to enacting the Ordinance, the City Council reviewed studies and reports prepared for Amarillo, Texas; Phoenix, Arizona; New York, New York; Detroit, Michigan; Beaumont, Texas; Houston, Texas; Austin, Texas; Oklahoma City, Oklahoma; Indianapolis, Indiana; and Seattle, Washington. The City Council also considered testimony from residents and businesses in the City and reports and testimony from the City’s Planning Director, Zoning Manager and Police Department. Having reviewed these materials, this Court finds that the City had a “reasonable belief’ that the secondary effects of adult businesses exist. Accordingly, Plaintiffs’ motion on the issue of improper predicate is denied and Defendants’ motion is granted. Summary judgment is entered in favor of the Defendants as to Count I of Plaintiffs’ Civith, et al.’s complaint and as to Count VIII of Plaintiff 3405, Inc.’s amended complaint. B. Does the Ordinance allow for Adequate Alternative Avenues of Communication? The test for determining whether the Ordinance allows for “adequate alternative avenues of communication” is one of reasonableness. Adult businesses: must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees ... [Ajlthough we have cautioned against the enactment of zoning regulations that have the “effect of suppressing or greatly restricting access to lawful speech,” ... we have never suggested that the First Amendment compels the Government to ensure that Adult theaters ... will be able to obtain sites at bargain prices ... In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city____ Id. (quoting Renton, 475 U.S. at 54, 106 S.Ct. at 932) (citations omitted). Unfortunately for this Court and other trial courts, the issue of reasonableness, and how economic considerations affect it, is not easily resolved. “Like the opinions of other courts addressing the subject, neither Walnut or Topanga provided a bright line rule for determining whether or not a city has provided a ‘reasonable opportunity to open and operate an adult [business] within the city, or whether adequate alternative sites exist for adult businesses’.” 3570 East Foothill Blvd., Inc. v. City of Pasadena, 912 F.Supp. 1257, 1264 (C.D.Cal.1995), aff'd, 99 F.3d 1147 (9th Cir.1996). A review of Circuit Court opinions does, however, provide some ground rules which frame the analysis. In discussing the relationship between “a reasonable opportunity to open and operate” and commercial viability, the Fifth Circuit in Woodall v. City of El Paso ("Woodall I”), 959 F.2d 1305, 1306 (5th Cir.) (per curiam) modifying 950 F.2d 255 (5th Cir.), cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992), drew a distinction between economically unsuitable land and physically or practically unsuitable land. The Woodall I court interpreted Renton as standing for the proposition that “land with physical characteristics that render it unavailable for any kind of development, or legal characteristics that exclude adult businesses, may not be considered available for constitutional purposes.” Id. The Ninth Circuit in Topanga rejected the Fifth Circuit’s distinction. This easily blurred line between economic and physical suitability creates doctrinal problems. If the suitability of a relocation site always can be couched in terms of economic suitability, under Renton no relocation site could ever be considered unreasonable. On the other hand, if a court attempts artificially to maintain the line between physical and economic suitability, it may often be led to consider the economic factor sub rosa which is forbidden under Renton. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1529 (9th Cir.1993). The Topanga court then expanded upon the underlying rational of this distinction. Echoing the Fifth Circuit’s observation that Renton “obviously contemplated that there was a ‘market’ in which businesses could purchase or lease real property on which business could be conducted” Id. at 1529 (citing Woodall, 959 F.2d at 1305), the Topanga court then concluded Renton does not forbid a court from considering “economics when evaluating whether a particular relocation site is in fact part of the real estate market.” Id. at 1530. For purposes of Renton, the distinction is between consideration of economic impact within an actual business real estate market and consideration of cost to determine whether a specific relocation site is part of the relevant market. A court may not consider the former, but it may consider the latter when determining whether a specific site is reasonably suitable for the operation of a business. Id. Having drawn this conclusion, the Topanga court then noted five factors to consider in determining whether a specific relocation site is available. First, “the requirement of potentiality connotes genuine possibility.” Id. at 1531. A relocation site is not available “when it is unreasonable to believe that it would ever become available to any commercial enterprise.” Id. (emphasis added). Second, “relocation sites that are reasonably accessible to the general public may also be part of the market.” Id. Third, “areas in manufacturing zones which have a proper infra-structure such as sidewalks, roads and lighting may be included in the market.” Id. Fourth, “potential sites must be reasonable relocation sites for some commercial enterprise before they can be considered part of the relevant market.” Id. (emphasis added). Finally, “those relocation sites which are commercially zoned are part of the market.” Id. In a subsequent appeal within the Woodall case, the Fifth Circuit revisited its earlier opinion in light of the Ninth Circuit’s Topanga opinion. While the Fifth Circuit neither withdrew from its previously stated position nor adopted the five factors of Topanga, it did offer some insight into what it considered a reasonable relocation site. The relevant consideration is whether the physical characteristics of the site present an unreasonable obstacle to opening a business; an obstacle that can be overcome without incurring unreasonable expense does not make a site unavailable, but an obstacle that cannot reasonably be overcome renders the site unavailable. Thus, in determining whether there are sufficient sites available, the finder of fact may exclude land under the ocean, airstrips of international airports, sports stadiums, areas not readily accessible to the public, areas developed in a manner unsuitable for any generic commercial business, areas lacking in proper infrastructure, and so on. However, the fact that a site may not be commercially desirable does not render it unavailable. It is not relevant that a relocation site will result in lost profits, higher overhead costs, or even prove commercially unfeasible for an adult business. There is no requirement that an adult business be able to obtain existing commercial sites at low cost and with market access to ensure its prosperity. As we have stated time and again, commercial viability is not a relevant consideration. Woodall v. City of El Paso (“Woodall II”), 49 F.3d 1120, 1124 (5th Cir.1995) (citations omitted) (emphasis added). Finally, the Woodall II court commented upon how a district court should evaluate whether the relocation sites within the relevant real estate market provide adequate alternative avenues of communication. Where a zoning ordinance requires that adult businesses maintain a certain distance from one another, merely knowing the number of acres available is not particularly enlightening ... We are therefore not particularly concerned with determining how much acreage was actually available ... What is important is the number of adult business locations that the acreage will support given the spacing requirements. That is what determines whether there are sufficient alternative sites available, and that is our focus in reviewing the sufficiency of the evidence. Id. at 1125 (emphasis added). Additionally, the Eighth Circuit in Alexander v. City of Minneapolis, 928 F.2d 278, 283 (8th Cir.1991), concluded that testimony concerning whether anyone would lease property to an adult business is irrelevant because adult business operators must fend for themselves. “ ‘The inquiry for First Amendment purposes is not concerned with economic impact ...’ Additional testimony from Alexander that no one would sell or lease property on which he could relocate his businesses was also irrelevant to the First Amendment inquiry.” Id. (citation omitted). The Fourth Circuit echoed this conclusion in D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 147 (4th Cir.1991), when it stated, “The decision to restrict adult businesses to a specific area does not oblige the city to provide commercially desirable land.” These Circuit opinions provide insight into Renton’s proclamation prohibiting the trial court from considering the commercial viability of a relocation site in determining whether a relocation site is available. Although these opinions disagree as to whether to describe the “availability” of a relocation site in terms of economic or physical considerations, they do establish minimum standards. First, these opinions acknowledge that Renton presumes the existence of a relevant real estate market. Topanga, 989 F.2d at 1530; Woodall I, 959 F.2d at 1305. Second, whether a relocation site is available and part of the relevant real estate market is measured in terms of “genuine possibility.” Topanga, 989 F.2d at 1531. While this term is not definitive, certain examples provide insight. Physical considerations may render a site unavailable. A site is not a genuine possibility when it is “under the ocean, airstrips of international airports, sports stadiums, areas not readily accessible to the public, areas developed in a manner unsuitable for any generic commercial business, areas lacking in proper infrastructure, and so on.” Woodall II, 49 F.3d at 1124 (emphasis added); see also Topanga, 989 F.2d at 1532. Additionally, economic considerations may render a site unavailable. A site is not a genuine possibility “when it is unreasonable to believe that it would ever become available to any commercial enterprise.” Topanga, 989 F.2d at 1531 (emphasis added). Third, when a site is part of the relevant market and available to any commercial enterprise, it is irrelevant whether or not the owner will lease the land to the adult establishment. Alexander, 928 F.2d at 283, 3570 East Foothill Blvd., Inc., 912 F.Supp. at 1264; O’Malley v. City of Syracuse, 813 F.Supp. 133, 147 (N.D.N.Y.1993) (concluding that “Plaintiffs’ argument that much of four percent [available land] is already occupied by other businesses and is hence not truly ‘available’ is without merit”). Restrictive covenants or leases between third parties rendering a site unavailable to an adult establishment does not render the site unavailable for First Amendment purposes. Municipal or local governments are under no obligation either to dictate that third parties make their land available to adult establishments or to consider whether such private restrictions in fact exist. The critical issue is whether the local government has made the land available for any commercial enterprise. “The City is not required to provide Alexander with an actual site available to relocate his theatres.” Alexander, 928 F.2d at 284. Fourth, hazardous waste or other factors which render the land more expensive to purchase or lease are also irrelevant. The First Amendment does not “compel[ ] the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.” Renton, 475 U.S. at 54, 106 S.Ct. at 932. Finally, once the Court determines the relevant market, “there is no constitutional requirement setting forth how many sites or what percentage of the land must be available for adult businesses.” 3570 East Foothill Blvd., Inc., 912 F.Supp. at 1265. Courts have considered a variety of factors, “including the percentage of land theoretically available to adult businesses, the number of sites potentially available in relation to the population of the city, the number of sites compared with the existing number of adult businesses, or the number of businesses desiring to offer adult entertainment.” Id. Using these opinions as guidance, the Court now turns to the instant Ordinance. According to the City’s Land Use Plan, 82.2% of the City is designated as residential, preservation, recreation/open space or public/semi-publie land uses. See Doc. No. 65 at ¶4, Affidavit of Ralph E. Stone. Accordingly, this leaves approximately 17.8% of the City for development in industrial, commercial, office, retail and central business district land uses. Id. However, adult uses are permitted in the commercial, central business district and retail/office/residential land use categories which only comprise approximately 6.3% or 1,662 acres of the City. Id. at ¶ 12. After applying the Ordinance, the City states that only approximately 178 acres are available for adult use establishments. Doc. No. 76 at ¶ 24, Supplemental Affidavit of Ralph E. Stone. Initially, the City argued that this acreage supported only fifteen (15) general locations for adult use establishments. See Doc. No. 65. However, the City now contends that it supports a minimum of twenty (20) adult use establishments. See Doc. No. 76. Plaintiffs take issue with the number of sites offered as alternative avenues by the City. Plaintiffs’ expert, Mr. McLaughlin, originally argued that there were a maximum of six sites and a minimum of four sites available. At the hearing, however, Mr. McLaughlin concluded that there were a maximum of three available sites: one in the southwest quadrant of the Tryone Mall area; and one or two in the Thunder Dome area. Doc. No. 170 at 60 lines 6-8. Plaintiffs argue that this dispute does not give rise to a disputed material fact mandating the denial of either party’s motion. Rather, Plaintiffs maintain this Court can examine the proposed sites and determine as a matter of law what the exact amount of proposed sites is. Once the Court has made this determination, the Plaintiffs argue that the Court must consider the number of sites in relation to the population in units of per 1,000 persons. The Court must then consider this ratio to the adult use ratio in other cities. See Doc. Nos. 122 & 129. At the November 21, 1996 hearing, the Court received evidence and heard testimony from Mr. Stone, Director of Planning, Housing and Development Review Services of the City, and Mr. McLaughlin, a consultant hired by the Plaintiffs and a member of the American Institute of Certified Planners. Specifically, the Court reviewed the twenty sites considered “available” by the City. The Court looked at enlarged aerial photos, considered the location and zoning status of the proposed sites and heard testimony from Mr. Stone defending the twenty sites and from Mr. McLaughlin discussing why all but three of the sites are unavailable. The twenty sites divide into eight areas. The first area is referred to as the “Central Plaza” area and supports two sites. This area is noted in Exhibit IB of Mr. Stone’s Supplemental Affidavit (Doc. No. 76). An enlargement of this exhibit, Exhibit 1-A, was presented at the hearing. This area consists of approximately 11.19 acres. The second area is located in north St. Petersburg, at the intersection of 38th Avenue and 34th Street. This area is noted in Exhibit 2B of Mr. Stone’s Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 2-A. This area consists of approximately 2.60 acres and supports one site. The third area is located on and around the Pier of St. Petersburg. This area is noted in Exhibit 3B of Mr. Stone’ Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 3-A. This area consists of approximately 4.13 acres and supports one site. The fourth area is located in the northeast part of the city, at the intersection of 9th Street North and Gandy Boulevard. This area is noted in Exhibit 4B of Mr. Stone’s Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 4-A. This area consists of approximately 28.73 acres and supports two sites. The fifth area is located in downtown St. Petersburg, near the Florida Thunder Dome or the Tropicana Dome. This area is noted in Exhibit 5B of Mr. Stone’s Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 5-A. This area consists of approximately 41.05 acres and supports five sites. At the hearing, Mr. Stone specifically commented that the area on which the Thunder Dome is located was not included in determining the number of potential sites or acreage. Doc. No. 170 at 20 lines 13-21. The sixth area is located between U.S. 19 and 34th Street and the intersection of 22nd Avenue north. This area is noted in Exhibit 6B of Mr. Stone’s Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 6-A. This area consists of approximately 18.70 acres and supports two sites. The seventh area is known as the Tyrone Mall area and is located at the intersection of Tyrone Boulevard and Park Street. This area is noted in Exhibit 7B to Mr. Stone’s Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 7-A. This area consists of approximately 6.25 acres and supports two sites. The eighth area is located at the intersection of 22nd Avenue North and 72nd Street. This area is noted in Exhibit 8B to Mr. Stone’ Supplemental Affidavit (Doc. No. 76), an enlargement of which was submitted at the hearing as Exhibit 8-A. This area consists of approximately 65.51 acres and supports five sites. Plaintiffs’ objections to the various sites are best summarized in Plaintiffs’ Exhibit 2 (Data Related to a Site Specific Analysis on Alternative Avenues of Communication for Adult Uses) submitted at the hearing. Unfortunately, for organizational purposes, the Plaintiffs’ objections do not follow the order of City’s exhibits. Plaintiffs first object to the sites suggested at the intersection of Gandy Boulevard and 9th Street (i.e. Defendants’ Fourth Area). Although Plaintiffs note that this area is commercially zoned, they contend it is unavailable because it is subject to restrictive covenants or master leases by the current owners, NationsBank and K-Mart, and because to the extent that K-Mart runs an automotive services facility on the grounds, there may be hazardous waste liability. Doc. No. 170 at 41 lines 5-15. Plaintiffs next object to the sites suggested at the intersection of Gandy Boulevard and 9th Street and Executive Center Drive (i.e. still Defendants’ Fourth Area). Again, although Plaintiffs note that the area is commercially zoned, they contend the area is unavailable because it is subject to restrictive deeds or leases and a preservation easement. Plaintiffs note that the area is only available for offices and not generic commercial purposes because of the master leases. Id. at 43 lines 16-25. The Plaintiffs next object to the site suggested at the Defendants’ Second Area. Again, Plaintiffs concede that the area is commercially zoned, but argue that area is unavailable because of likely hazardous waste problems and lack of frontal access. Id. at 45 lines 15-17 & 46 lines 2-16. The next objection concerns Defendants’ Sixth Area. Once again, Plaintiffs note that the area is commercially zoned, but contend that it is unavailable because the land is subject to restrictive leases that preclude adult establishments. The next objection concerns Defendants’ First Area. Plaintiffs’ objections break down this area into several parts. First, concerning the area east of 34th Street and north of Burlington, Plaintiffs note that this area is located by the U.S. Post Office parking lot, which is a permanent occupancy not likely to relocate. Plaintiffs do note, however, that this area is commercially zoned. Second, concerning the area between Burlington and 1st Avenue, while the land is commercially zoned, the entire area is owned by Montgomery Ward. Thus, Plaintiffs argue that it is a single oecupant/tenant lot, parts of which are within the segregated distance, thereby disqualifying the entire lot. Additionally, Plaintiffs argue that it is unavailable because is it occupied by a permanent occupant not likely to relocate. Finally, concerning the area along Central Avenue between 34th Street and 32nd Street, Plaintiffs argue that although the land is commercially zoned, the area is unavailable because it is subject to restrictive covenants precluding adult businesses. Plaintiffs next object to Defendants’ Fifth Area. Plaintiffs break this area into several parts. First, concerning the area west of the interstate, while the area is zoned commercial, the area is zoned commercial intensive and does not permit retail uses unless they are primarily a display use, making it unavailable for an adult book store or modeling studio. It would, however, permit a theater, but Plaintiffs suggest hazardous waste problems make this unlikely. Second, concerning the area south of 1st Avenue between 16th Street and the interstate, the area, although commercially zoned, is unavailable because it is occupied by a major use and a smaller permanent occupant not likely to relocate. The area also has hazardous waste problems. Plaintiffs also suggest that much of this land is going to be acquired by the City. Third, concerning the area along 1st Avenue south between 15th Street and 11th Street, Plaintiffs concede that although there may be some hazardous waste problems, this area would support one or two sites. As for Defendants’ Third Area (the Pier), Plaintiffs maintain that although the area is commercially zoned, the area is unavailable because most of it is owned by the City and while the City does not have any restrictive covenants, the City will not lease the land to an adult establishment. As for Defendants’ Eighth Area (Tryone Mall), Plaintiffs again note that the area is commercially zoned, but argue that it is unavailable because the area is subject to restrictive deeds or leases and/or because the area is occupied by tenants not likely to relocate. Finally, concerning the Defendants’ Seventh Area, Plaintiffs again object, even though the area is commercially zoned, because the area is subject to restrictive deeds and leases precluding adult establishments and potentially contains hazardous waste. However, at the hearing Mr. McLaughlin did testify that this area would support one site. Id. at 54 lines 17-18. Having reviewed Plaintiffs’ objections, the Court notes that they can be summarized as follows: (1) restrictive deeds or covenants or master leases precluding adult establishments; (2) hazardous waste; and (3) property owned by the City. The Court finds the first and second objections irrelevant as previously noted. However, the objection concerning the Pier is well taken. When the regulator is also the land owner, such land cannot be considered within the relevant market if the government has a policy of not leasing to the adult establishments. Accordingly, the one adult use suggested in Third Area is excluded. Nonetheless, this leaves a total of nineteen possible sites. The Court finds the existence of nineteen sites inadequate. Although there is no brightline rule for making this determination, the Court finds the relationship between the number of available sites and the population of the community important. BBI Enterprises, Inc. v. City of Chicago, 874 F.Supp. 890, 896 (N.D.Ill.1995) (stating “[w]hat is clearly a much more relevant basis for comparison is the relationship between (1) the number of a city’s sites that are really available for adult uses and (2) that city’s population — a relationship that speaks more directly in supply-and-demand terms”). As Mr. McLaughlin’s original affidavit (Doc. No. 122) notes, there have been five cases in Florida approving various numbers of adult uses in various localities. See International Eateries, 941 F.2d at 1157 (dealing with 26 sites); International Food & Beverage Sys. v. City of Ft. Lauderdale, 794 F.2d 1520 (11th Cir.1986) (dealing with 22 sites); T-Marc, Inc. v. Pinellas County, 804 F.Supp. 1500 (M.D.Fla.1992) (dealing with 123 sites); Southern Entertainment Co. of Fla., Inc. v. City of Boynton Beach, 736 F.Supp. 1094 (S.D.Fla.1990) (dealing with 11 sites); Function Junction, Inc. v. City Daytona Beach, 705 F.Supp. 544 (M.D.Fla.1988) (dealing with 12 sites). Exhibit D to Mr. McLaughlin’s affidavit compares the number of sites with the population for these five eases and the instant case. Boynton Beach has a population of 46,284, creating a ratio of one site per 4,208 people. Broward County has a population of 154,408, creating a ratio of one site per 5,939 persons. Daytona Beach has a population of 61,991, creating a ratio of one site per 5,166 persons. Fort Lauderdale has a population of 148,743, creating a ratio of one site per 6,761 persons. Pinellas County has a population of 268,394, creating a ratio of one site per 2,182 persons. St. Petersburg, however, has a population of 238,726, creating a ratio of one site per 12,-565 persons. In comparison, the City of St. Petersburg’s ratio is inadequate. Additionally, the Court is not swayed by Defendants’ argument that the number of available sites must also include those available locations in the unincorporated area of Pinellas County. Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). In Schad, the local government argued that “if there were county-wide zoning, it would be quite legal to allow live entertainment in only selected areas of the county and to exclude it from primarily residential communities such as the Borough of Mount Ephraim.” Id. at 76, 101 S.Ct. at 2187. The 'Supreme Court stated that while “[t]his may very well be true, ... the Borough cannot avail itself of that argument in this case. There is no county-wide zoning....” Id. (emphasis added). In the instant case, Defendants argue that although there is no county-wide zoning, there is a county-wide land use plan. The plan requires the City to seek permission of the County before it can change any land use category. Given the speculative language of the Supreme Court in Schad, this Court will not expand the principle to the scenario in this case. Absent a county-wide zoning scheme, the City cannot avail itself of the sites in the unincorporated area of Pinellas County. See Phillips, 107 F.3d at 176 n. 4 In sum, this Court finds that the Ordinance is unconstitutional because it does not allow for adequate alternative avenues of communication. Summary judgement is entered in favor of the Plaintiffs as to Count II of Civith, et al.’s complaint and as to Count IV of 3405, Inc.’s amended complaint. Defendants’ motion for summary judgment on this issue is denied. C. Is the Ordinance narrowly tailored? Although neither Plaintiffs Civith, et al.’s complaint nor Plaintiff 3045, Inc.’s amended complaint contain a count specifically delineated as addressing the narrowly tailored requirement, both have moved for summary judgment on the issue. See Doc. Nos. 113 & 121. The Plaintiffs note that in order for the Ordinance to be constitutional, the “incidental restrictions on ... First Amendment freedoms [must be] no greater than is essential to the furtherance of that interest.” Young v. American Mini Theatres, Inc., 427 U.S. 50, 79-80, 96 S.Ct. 2440, 2457, 49 L.Ed.2d 310 (1976). The Ordinance must be “narrowly tailored to serve the government interest at issue.” International Eateries, 941 F.2d at 1162. Plaintiffs contend that the City cannot pass this hurdle because the City Council purposely tried to make the Ordinance as restrictive as possible. At the December 3, 1992 City Council Meeting, the City Attorney, Mr. Winn, presented a draft of the Ordinance with a 400 foot requirement. The City Council Staff and Mr. Winn then discussed the legality of a 1,000 foot requirement with the City Council. Mr. Winn specifically stated that a 1,000 foot requirement would not pass the constitutional test. We think a thousand feet, which would only leave five possible sites in the City, which is a city of 27,000 acres, which is close to a quarter of a million people, I don’t think that that (sic) would be appropriate or pass the constitutional test for providing alternative avenues of communication. Doc. No. 29, Vol. No. 10, Exhibit 2 at 14. Mr. Winn then noted why his staff had suggested 400 feet. As you know, the County has a 400-foot requirement. Their ordinance was recently challenged and recently upheld at 400 feet. Now at 400 feet their ordinance provides for more sites then our ordinance does. Id. at 15. After hearing from the public, the City Council and the Mayor discussed the issue. The Mayor stated: [S]o it became like everybody, I think, is sitting up here saying, “How far can we go and still defend this,” is about what it amounted to. And this, this is where, Are you safe at 400 feet with a one-year grandfathering or can you go to a thousand feet. What can you do and still defend it and protect this City. Id. at 31. At the January 31, 1993 hearing, Mayor Fischer stated: But what I’m concerned about is if we get a number so low that gets tied up in the courts, that instead of shutting down a lot of adult use centers or entertainment centers, we prolong the agony for two or three years and don’t shut any down. So we’ve got to find that number that we can defend and still accomplish our goal. Id., Exhibit 4 at 13. Having reviewed the transcripts of the City Council’s hearings on November 10, 1992, December 3, 1992, January 7, 1993, January 21, 1993 and January 28, 1993 (Doc. No. 29, Exhibit 10), this Court finds that Defendants have not adopted an ordinance which is narrowly tailored. Bather, as noted by the previous conclusion that there are “inadequate alternative avenues of communication,” the City has adopted an Ordinance which is “greater” than necessary to protect the governmental interest. Accordingly, Plaintiffs’ motions on this issue are granted. The Ordinance is unconstitutional because it is not “narrowly tailored.” II. Does the enforcement of the Ordinance constitute a “Taking” in violation of the Constitution? Count V of Plaintiffs Civith, et al.’s complaint alleges that the Plaintiffs operate adult entertainment establishments on their respective properties and that the enactment “of the Ordinance precludes use of their property for the chosen economically feasible use and deprives Plaintiffs of all reasonable economic benefit from the property.” Doc. No. 1 at ¶ 95. Plaintiffs further aver that if “Plaintiffs are prevented from operating their businesses on the property, their leases will be void under the doctrine of commercial frustration and their business interest in the property will be taken.” Id. at ¶ 96. Plaintiffs conclude that “the effect of the Ordinance at issue herein has the effect of taking property, ..., without compensation and without due process of law.” Id. at 101. Count VI of Plaintiff 3405, Inc.’s amended complaint alleges that the retroactive application of the Ordinance “has the effect of taking property — the business operated by Plaintiff — without compensation and without due process of law.” Doe. No. 81 at ¶ 80. Defendants argue summary judgment should be entered in their favor as to these Counts because the Ordinance is a proper zoning regulation, containing a proper amortization provision. Plaintiffs’ response contends that while the Ordinance may not have taken all the beneficial use of the real property, it has taken all the use of the Plaintiffs’ property right in their businesses. The Court rejects Plaintiffs’ argument concerning the Taking Clause. The Taking Clause of the Fifth Amendment prohibits the City from condemning “private property ... for public use without just compensation.” The clause applies whenever government action renders property worthless. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-16, 112 S.Ct. 2886, 2892-94, 120 L.Ed.2d 798 (1992) (government action effectively condemns a landowner’s property if it denies him “all economically beneficial or productive use” of his property). Plaintiffs contend that even though beneficial use of the real property exists, a taking has nonetheless occurred because the landowner’s chosen use of the property, i.e. the adult establishment, may no longer be operated on the property. Interestingly, the Court notes that Plaintiffs have offered no citation of authority in support of this position. Plaintiffs’ argument impermissibly expands the scope of the Fifth Amendment such that most, if not all, zoning regulations result in a taking. Accordingly, the Court grants Defendants’ motion on