Giovani Carandola, Ltd. v. Bason

• Citation: 147 F.Supp.2d 383
• Decision Date: 17 April 2001
• Docket Number: No. 1:01CV115.,1:01CV115.
• Court: United States District Courts. 4th Circuit. Middle District of North Carolina
• Parties: GIOVANI CARANDOLA, LTD., and Janel D. Ralph, Plaintiffs, v. George BASON, in his official capacity as Chairman of the North Carolina Alcohol Beverage Control Commission; Howard McGlohon and Ricky Wright, in their official capacities as Members of the North Carolina Alcohol Beverage Control Commission; Bryan Beatty, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety; and Greensboro Alcohol Beverage Control Board, a political subdivision of the State of North Carolina; and John Does 1 through 10, Defendants.

147 F.Supp.2d 383

GIOVANI CARANDOLA, LTD., and Janel D. Ralph, Plaintiffs, v. George BASON, in his official capacity as Chairman of the North Carolina Alcohol Beverage Control Commission; Howard McGlohon and Ricky Wright, in their official capacities as Members of the North Carolina Alcohol Beverage Control Commission; Bryan Beatty, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety; and Greensboro Alcohol Beverage Control Board, a political subdivision of the State of North Carolina; and John Does 1 through 10, Defendants.

No. 1:01CV115.

United States District Court, M.D. North Carolina.

April 17, 2001.

Thomas F. Loflin, III, Loflin & Loflin, Durham, J. Michael Murray, Steven D Shafron, Berkman Gordon Murray & Devan, Cleveland, OH, for Giovani Carandola, LTD, A North Carolina Corporation, plaintiffs.

Isaac T. Avery, III, N.C. Department of Justice, Amy L. Yonowitz, Joyce L. Davis & Associates, John Julian Aldridge, III, N.C. Dept. of Justice, Law Enforcement Liason, Raleigh, Margaret Shea Burnham, Adams Kleemeier Hagan Hannah & Fouts, Greensboro, for George Bason, in his official capacity as Chairman of the North Carolina Alcohol Beverage Control Commission, Howard McGlohon, in his official capacity as Member of the North Carolina Alcohol Beverage Control Commission, Ricky Wright, in his official capacity as Member of the North Carolina Alcohol Beverage Control Commission, Bryan Beatty, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety (Substituted from David E. Kelley 2/20/01), Greensboro Alcohol Beverage Control Board, a political subdivision of the State of North Carolina, John 1-10 Does, defendants.

MEMORANDUM OPINION

TILLEY, Chief Judge.

This case is now before the Court on Plaintiffs' Motion for a Preliminary Injunction [Doc. # 3], pursuant to Fed.R.Civ.P. 65, restraining Defendants,¹ Defendants' officers, agents, servants, employees, attorneys, and all persons in active concert or participation with Defendants from enforcing N.C. Gen.Stat. § 18B-1005 (1995) and Alcohol Beverage Control Rule 4 N.C.A.C. 2S.0216 against Plaintiff Giovanni Carandola Ltd., its officers, agents and employees, and against Plaintiff Janel D. Ralph.² For the reasons provided below, this motion is GRANTED.

I.

Plaintiff Giovani Carandola, Ltd., operating as Christie's Cabaret ("Plaintiff Christie's"), is a Greensboro "gentleman's club" licensed by the North Carolina Alcohol Beverage Control Commission ("Commission") to hold Malt Beverage, Fortified Wine, Unfortified Wine and Mixed Beverage Private Club permits. Plaintiff Ralph is employed as a dancer at Christie's. Her dance routines include theme shows, in which Plaintiff Ralph dances two to three songs in costume as an exotic character (i.e. cowgirl, cheerleader, "Baywatch" girl). At least a portion of these performances involve Plaintiff Ralph dancing topless or touching her body.

On November 11, 2000, entertainers³ at Christie's were allegedly witnessed by Commission officers engaging in acts in violation of N.C.G.S. § 18B-1005 and Rule 4 NCAC 2S.0216. N.C.G.S. § 18B-1005 states, in pertinent part:

(A) Certain Conduct.—It shall be unlawful for a permittee or his agent or employee to knowingly allow any of the following kinds of conduct to occur on his licensed premises:

[Section (1)(2)(3) omitted]

(4) Any conduct or entertainment by any person whose private parts are exposed or who is wearing transparent clothing that reveals the private parts;

(5) Any entertainment that includes or simulates sexual intercourse or any other sexual act; or

(6) Any other lewd or obscene entertainment or conduct, as defined by the Rules of the Commission.

Rule 4 NCAC 2S.0216 states:

(A) No permittee or his employee shall allow any person to perform acts of or acts that simulate:

(1) sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any sexual acts that are prohibited by law;

(2) the touching, caressing or fondling of the breasts, buttocks, anus, vulva or genitals;

(3) the display of the pubic hair, anus, vulva or genitals.

(B) No permittee or his employee shall allow any person to use artificial devices or inanimate objects to depict any of the prohibited activities described in Paragraph (A) of this Rule.

(C) No permittee or his employee shall allow any person who exposes to public view any portion of his pubic hair, vulva, genitals or anus to remain in or upon the licensed premises.

In December, 2000, Plaintiff Christie's received a Notice of Alleged Violation (Ex. 3, Am.Comp), citing that Christie's had violated the aforementioned statute and regulation, when, on the licensed premises: an employee simulated sexual intercourse, on two occasions an employee engaged in acts of touching, caressing or fondling of the breasts, and an employee simulated masturbation.⁴ With the Notice of Alleged Violation, the Commission included a Proposed Stipulation and Offer in Compromise (Id.), in which Plaintiff could stipulate to the violations and have its permits suspended for 30 days, beginning February 9, 2001, subject to the last 15 days being avoided upon payment of a $3000 penalty by February 2, 2001. Plaintiff Christie's has not agreed to the Stipulation or Offer in Compromise. Further, Plaintiff alleges that the Commission informally advised Plaintiff that if no resolution were reached by the end of January, formal charges would be initiated.

While no formal charges are pending against Plaintiffs, Plaintiff Christie's alleges that it faces an imminent threat of prosecution. Further, Plaintiff Ralph alleges that this threat, along with the existence of N.C.G.S. § 18B-1005 and Rule 4 NCAC 2S.0216, act to chill her "right to express certain messages during the course of her dance performances." (Am. Comp. ¶ 17.) Plaintiffs seek relief from this Court, in part, by requesting that the Court declare both restrictions unconstitutional on their faces and as applied, and issue a preliminary injunction,⁵ forbidding enforcement of both N.C.G.S. § 18B-1005 and Rule 4 NCAC 2S.0216 against Plaintiffs.

II.

A.

When determining whether to issue a preliminary injunction, a court must consider four factors: "(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest." Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991); Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). Plaintiff bears the burden of establishing each of the four factors to support granting the injunction. Direx, 952 F.2d at 812.

For purposes of this injunction, the Court adopts the approach of the Fourth Circuit in the unpublished opinion, Mom N Pops, Inc. v. City of Charlotte, 162 F.3d 1155, No. 97-2359, 1998 WL 537928 (4th Cir. Aug.19, 1998). There the Fourth Circuit concluded:

[o]rdinarily, the court should first address the balance of harms by determining whether the plaintiff is likely to suffer some irreparable harm absent an injunction, and if so, whether the harm to the plaintiff outweighs the potential harm of an injunction to the defendant. [citation omitted] However, in this case the irreparable harm [Plaintiff] alleges is inseparably linked to its claim of a violation to its First Amendment freedom of speech. [citation omitted] Therefore, to properly address [Plaintiff's] claim of irreparable injury, we must first determine [Plaintiff's] likelihood of succeeding on the merits of its claim.

Id. at *1. In this case, the irreparable harm Plaintiffs allege is also inseparably linked to their claim of violation of First Amendment rights so the first consideration should be Plaintiffs' likelihood of success on the merits.

B.

i.

When considering Plaintiffs' likelihood of success on the merits, the Supreme Court decision in City of Erie v. Pap's A.M. is instructive. 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). In Pap's the Supreme Court considered whether a city's public indecency ordinance, proscribing nudity in public places, was constitutional when the ordinance was challenged by a nude, exotic dance establishment. Id. The Supreme Court concluded that "nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection." Id. at 289, 120 S.Ct. at 1391 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991)).

When determining which level of scrutiny to apply to the city ordinance, the Supreme Court noted

... we must decide "whether the State's regulation is related to the suppression of expression." [Citation omitted.] If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard from O'Brien for evaluating restrictions on symbolic speech. [citation omitted.] If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard.

Pap's at 289, 120 S.Ct. at 1391 (referring to United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)); Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1278 (11th Cir.2001).

The 11th Circuit recently applied the reasoning in Pap's to determine the appropriate scrutiny for analyzing two Alabama statutes prohibiting nudity for "entertainment purposes" and prohibiting operation of adult oriented businesses within 1,000 feet of various buildings such as schools or churches. Ranch House, 238 F.3d at 1275. Plaintiff in the case, a corporation of clubs offering nude female dancing, challenged the statutes as...