Dodger's Bar & Grill, Inc. v. Johnson County Bd. of County Com'rs, 93-3097

• Decision Date: 08 August 1994
• Docket Number: No. 93-3097,93-3097
• Citation: 32 F.3d 1436
• Parties: DODGER'S BAR & GRILL, INC., a corporation, dba Bonita Flats Saloon, Plaintiff-Appellant, and Rhondi Davis, Sheila King, Elizabeth Lucas, Rhonda Wheeler, Serena Parker, Melissa Jones, Cheri Davidson, Tammy Scheumeister, Anita Bower, Marley Weston, Suzy Kelly, Rachal Workman, Brooke Utz, Debra Maness, Laurie Boyer, Shelley Stewart, Vicki Smith, Jessica Allen, Deanna Hurst, Brenda Shook, Cyndi Schmidt, Susan Prince, Angela Thomas, Desiree Edwards, Orissa Hanson, Jackie Arnett, Robin Packard, Nicole Hestand, Jana Sullins, Nancy Sesler, Lewana Duncan, Sandy Watson, Chrissie Malloy, Tina L. Smith, Plaintiffs, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS; Johnna (NMI) Lingle, Chair, Johnson County Commissioner; Sue E. Weltner, Johnson County Commissioner; Bruce R. Craig, Johnson County Commissioner; Murray L. Nolte, Johnson County Commissioner; Dan (NMI) Hosfield, Johnson County Commissioner; Fred Allenbrand, Johnson County Sheriff; Paul (NMI) Morrison, Johnson County District Attorney, Defendants-Appellees, Platinum of Kansas, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1436

32 F.3d 1436

DODGER'S BAR & GRILL, INC., a corporation, dba Bonita Flats Saloon, Plaintiff-Appellant and Rhondi Davis, Sheila King, Elizabeth Lucas, Rhonda Wheeler Serena Parker, Melissa Jones, Cheri Davidson, Tammy Scheumeister, Anita Bower, Marley Weston, Suzy Kelly, Rachal Workman, Brooke Utz, Debra Maness, Laurie Boyer, Shelley Stewart, Vicki Smith, Jessica Allen, Deanna Hurst, Brenda Shook, Cyndi Schmidt, Susan Prince, Angela Thomas, Desiree Edwards, Orissa Hanson, Jackie Arnett, Robin Packard, Nicole Hestand, Jana Sullins, Nancy Sesler, Lewana Duncan, Sandy Watson, Chrissie Malloy, Tina L. Smith, Plaintiffs, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS; Johnna (NMI) Lingle, Chair, Johnson County Commissioner; Sue E. Weltner Johnson County Commissioner; Bruce R. Craig, Johnson County Commissioner; Murray L. Nolte, Johnson County Commissioner Dan (NMI) Hosfield, Johnson County Commissioner; Fred Allenbrand, Johnson County Sheriff; Paul (NMI) Morrison, Johnson County District Attorney, Defendants-Appellees, Platinum of Kansas, Inc., Amicus Curiae.

No. 93-3097.

United States Court of Appeals, Tenth Circuit.

Aug. 8, 1994.

Brock R. Snyder, Topeka, KS, (John B. Williams, Kansas City, MO, with him on the brief), for plaintiffs-appellants.

LeeAnne Hays Gillaspie, Chief Deputy County Counselor, Johnson County Legal Dept., Olathe, KS, for defendants-appellees Bd. of County Com'rs and Paul Morrison, Johnson County Dist. Atty., (Lawrence L. Ferree, III, and Ronald C. Rundberg, of Ferree, Bunn & Byrum, Overland Park, KS, with her on the briefs for defendant-appellee Fred Allenbrand, Johnson County Sheriff).

Clyde F. DeWitt and Gregory A. Piccionelli of Weston, Sarno, Garrou & DeWitt, Beverly Hills, CA, and Richard T. Bryant of Copilevitz, Bryant, Gray & Jennings, Kansas City, MO, filed an amicus curiae brief on behalf of Platinum of Kansas, Inc.

Before LOGAN and McKAY, Circuit Judges, and SAM, District Judge. ^*

LOGAN, Circuit Judge.

Plaintiffs Dodger's Bar & Grill, Inc. and more than thirty dancers who are or were employed by Dodger's, appeal from the district court's judgment for defendants, Johnson County Board of County Commissioners (Board), Sheriff Fred Allenbrand, and District Attorney Paul Morrison, on plaintiffs' claims for injunctive relief and declaratory judgment. 815 F.Supp. 399. Plaintiffs argue that particular sections of the Adult Entertainment Code, drafted and promulgated by defendants to regulate nude dancing in businesses serving liquor in unincorporated areas of Johnson County, Kansas, are facially unconstitutional, overbroad and vague. We affirm the district court's judgment in part and remand for consideration and ruling on one issue.

I

In 1992, several of the defendants began receiving complaints about activities in and around the Platinum Club and the Bonita Flats Saloon, a "nude bar" operating in unincorporated Johnson County, Kansas. During that same time period, nude bars in neighboring Wyandotte and Jackson counties were receiving considerable negative publicity about their operations. One bar in Kansas City, Kansas, was bombed.

The defendant Board received a zoning application from a Wyandotte County entrepreneur and proprietor of nude clubs seeking permission to build a bar and restaurant in Johnson County. Realizing that surrounding municipalities had already begun regulating nude clubs and bars, the Board anticipated that unincorporated Johnson County could become a safe haven and magnet for all such clubs in the area if it did not act. Accordingly, the Board sought the opinion of the sheriff and district attorney on appropriate regulation.

As defendants began to gather information, they received another inquiry about establishing an "upscale" nude club in Johnson County. Defendants studied the issue of regulation for approximately six months, examining ordinances and studies from other municipalities focusing on the harmful secondary effects of nude clubs. Defendants held public Board meetings which were attended by various representatives of plaintiffs. They heard complaints from local residents, including women who had been followed to their homes by patrons exiting plaintiffs' club. There were reports of people urinating in the parking lot and roadways and theft of property from nearby residences. Some citizens expressed concern about the effect of nude clubs on property values in the area and the danger of having the patrons of such clubs driving around their neighborhoods after drinking alcohol.

The defendant district attorney with input from the Board's counsel worked to draft a code regulating nude clubs. The police department and the district attorney gathered information about plaintiffs' club and found incidents of assault, drug use, drug sales, and other illicit activities. Their investigation also revealed that there was considerable intimate physical contact between the nude or mostly nude dancers and club patrons, which could not be regulated effectively by existing statutes on prostitution or lewd and lascivious behavior. See Appellants' App. 103-04, Ex. 407 (documenting the practice of "lap dancing" which involves a dancer sitting on the lap of a patron while slowly gyrating her buttocks or crotch on the patron's crotch and permitting the patron to fondle her breasts and buttocks). Based on their study and investigation, the Board passed two resolutions, jointly known as the Adult Entertainment Code (AEC), ¹ to regulate nude clubs serving alcohol in unincorporated Johnson County.

II

Before oral argument of this appeal we requested the parties to file memorandum briefs addressing whether the notice of appeal filed in this case was sufficient to confer jurisdiction over all the named plaintiffs or only over Dodger's Bar and Grill. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), addresses the requirement of Fed.R.App.P. 3(c) that the notice of appeal "specify the party or parties taking the appeal" and holds it is not met by the use of "et al." to designate multiple appellants. See Torres, 487 U.S. at 318, 108 S.Ct. at 2409.

The notice of appeal in the instant case identifies the plaintiffs in the caption as "Dodger's Bar & Grill Inc., a corporation, d/b/a Bonita Flats Saloon, et al.," and in the body of the notice as "Dodger's Bar and Grill, Inc. and the other individually-named plaintiffs...." Under several of our decisions since Torres, the instant notice of appeal would seem insufficient to give us jurisdiction over any but Dodger's Bar & Grill. See, e.g., Storage Technology Corp. v. U.S. Dist. Court for Dist. of Colo., 934 F.2d 244, 247-48 (10th Cir.1991) ("et al." in caption and notice that contained language "all the Defendants of record herein" did not provide clear point of reference for reviewing court to identify appellants in bankruptcy case); Laidley v. McClain, 914 F.2d 1386, 1389 (10th Cir.1990) ("et al." designation together with "plaintiffs hereby appeal" not sufficient to provide jurisdiction over unnamed plaintiffs under Rule 3(c) and Torres). Nevertheless, Fed.R.App.P. 3(c) has recently been amended to provide that "[a]n attorney representing more than one party may fulfill this requirement by describing those parties with such terms as 'all plaintiffs.' " The Advisory Note states that "the amendment allows an attorney representing more than one party the flexibility to indicate which parties are appealing without naming them individually." Fed.R.App.P. 3 advisory committee's note, 1993 Amendment. Because "[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity," Landgraf v. USI Film Products, --- U.S. ----, ----, 114 S.Ct. 1483, 1502, 128 L.Ed.2d 229 (1994), and the United States Supreme Court order adopting the amendments effective December 1, 1993, instructs us to apply the new rules to all pending appeals "insofar as just and practicable," 61 U.S.L.W. 5365 (U.S. April 27, 1993), we conclude that Rule 3(c) as amended should be applied in this case. Defendants will suffer no prejudice or injustice by the participation of the individual plaintiffs in this appeal, and we believe the designation by the attorney who represents all of the plaintiffs that the appeal is by Dodger's "and the other individually-named plaintiffs" is sufficient to confer jurisdiction and to meet the "fair notice" requirement that Torres and new Rule 3(c) demand.

III

Turning to the merits, we note that although the Supreme Court has acknowledged that some forms of nude dancing may be properly characterized as "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), our analysis of plaintiffs' facial attack on the AEC's constitutionality is framed by doctrine of the Twenty-First Amendment, not the First ². Put simply, this is a case primarily about regulating the service of alcohol in nude bars and clubs, not about censoring artistic performance. It is a well-established constitutional principle that "the States ³, 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," California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972). And the police power encompasses "the authority to provide for the public health, safety, and morals." Barnes, 501 U.S. at 569, 111 S.Ct. at 2462. When a regulation does not impinge upon a "fundamental right," the state need only articulate a rational basis for the exercise of police power, see Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), and to date, the Supreme Court has not recognized a fundamental right to unrestrained nude dancing in all settings. Therefore, plaintiffs argue, as t...