Deja Vu of Cincinnati, L.L.C. v. Union Tp.

Citation326 F.3d 791
Decision Date24 April 2003
Docket NumberNo. 00-4529.,No. 00-4420.,00-4420.,00-4529.
PartiesDEJA VU OF CINCINNATI, L.L.C., Plaintiff-Appellant/Cross-Appellee, v. The UNION TOWNSHIP BOARD OF TRUSTEES, et al., Defendants-Appellees, Attorney General of the State of Ohio, Intervenor-Appellee/Cross-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

H. Louis Sirkin (argued and briefed), Laura A. Abrams, Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, Bradley J. Shafer (argued and briefed), Andrew K. Wilkins, Shafer & Associates, Lansing, MI, for Plaintiff-Appellant Cross-Appellee.

Lawrence Edward Barbiere (argued and briefed), Schroeder, Maundrell, Barbiere & Powers, Cincinnati, OH, for Defendants-Appellees.

Sharon A. Jennings (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, Darrell M. Pierre, Jr. (briefed), Office of the Attorney General, Columbus, OH, for Intervenor-Appellee Cross-Appellant.

Before: CLAY and GILMAN, Circuit Judges; HAYNES, District Judge.*

CLAY, J., delivered the opinion of the court, in which HAYNES, D.J., joined. GILMAN, J. (pp. 810-813), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Deja Vu of Cincinnati, L.L.C. operates an adult cabaret in Union Township, Clermont County, Ohio ("the Township"). In 1999, the Township enacted an ordinance (locally known as a resolution) in an attempt to minimize the adverse secondary effects of sexually oriented businesses. Deja Vu filed a complaint in the United States District Court for the Southern District of Ohio, alleging that the resolution violated the First and Fourteenth Amendments to the United States Constitution. The district court granted in part and denied in part Deja Vu's subsequent motion for a preliminary injunction. In response to this decision, the Township amended the resolution to eliminate the provisions that the district court concluded were likely to be held unconstitutional and also eliminated other provisions that were not found to be suspect by the district court. Deja Vu now appeals, claiming that the district court erred in denying in part its motion for a preliminary injunction. The Ohio Attorney General, who intervened in the lawsuit to defend the constitutionality of Ohio's enabling statute, filed a cross-appeal.

We now declare the Township's resolution to be unconstitutional on its face and as applied because it does not provide for prompt judicial review of an adverse licensing decision as required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and therefore constitutes a prior restraint on freedom of expression as guaranteed under the First Amendment of the United States Constitution. Moreover, unlike the district court, we also find that the Township's enforcement of the provision limiting the hours of operation of adult cabarets that do not have liquor licenses to less than that permitted for adult cabarets that do have liquor licenses, violates both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Like the district court, however, we agree that there was a substantial likelihood that the resolution's health and safety inspection provision violates the Fourth Amendment. We also agree with the district court that the disclosure of information provision does not violate the First Amendment, that the resolution's provisions were not unconstitutionally vague, and that Deja Vu does not have standing to contest the civil disability provision of the resolution.

Accordingly, as further explained below, we AFFIRM in part and REVERSE in part the district court's order granting a preliminary injunction, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Deja Vu began operating a cabaret-style nightclub in Union Township in April of 1999. The nightclub features performances by clothed, semi-nude, and nude dancers.

In August of 1999, the Board of Trustees of Union Township enacted Resolution No. 99-15 to regulate the licensing of cabaret-style nightclubs that feature adult entertainment. The resolution was enacted pursuant to the authority granted to the Township by Ohio Revised Code § 503.51-59 for the purpose of protecting the "public health, safety and welfare." Resolution No. 99-15 § A. In particular, the resolution states that it was passed on the basis of the Board of Trustees's "review of other cities' studies and citizen comments regarding the secondary effects of sexually oriented businesses," which provided "convincing evidence" that such businesses "have a deleterious effect on both existing businesses around them and the surrounding residential areas...." Resolution No. 99-15 § C.

Deja Vu filed its complaint in the United States District Court for the Southern District of Ohio in September of 1999, alleging that various provisions of Resolution No. 99-15 violate the First and Fourteenth Amendments to the United States Constitution. At the same time, Deja Vu filed a motion for a preliminary injunction. Consideration of the motion was stayed pending a decision by the United States Supreme Court in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (holding that Erie's public indecency ordinance is a content-neutral regulation that is a valid restriction on public nudity). After the Supreme Court issued its decision in Erie, Deja Vu renewed its motion for a preliminary injunction. The district court granted the motion in part, enjoining the Township from enforcing the sections of Resolution No. 99-15 that pertain to warrantless health and safety inspections of the premises, §§ (L)(1) and (M)(2), and to the disclosure of personal information concerning every partner and shareholder of the business, §§ (D)(5)(d) and (e). In October of 2000, the district court denied Deja Vu's motion to alter or amend the preliminary injunction.

Deja Vu filed a timely appeal in November of 2000. The Attorney General of Ohio, who intervened in the case to defend the constitutionality of Ohio Revised Code § 503.51-59, cross-appealed the district court's decision to enjoin the warrantless health and safety inspections. While the appeal and cross-appeal were pending, the Township enacted Resolution No. 00-22 to amend and replace Resolution No. 99-15, thereby eliminating those provisions that the district court had determined were likely to be held unconstitutional. The new resolution also modified other aspects of the personal disclosure and civil disability provisions found in the older ordinance. For the remainder of this opinion, the term "the resolution" will be used to refer to Resolution No. 00-22.

II. STANDARD OF REVIEW

The issue of whether a preliminary injunction should be granted is a decision left to the sound discretion of the district court. Allied Sys., Ltd. v. Teamsters Nat'l Auto. Transporters Ind. Negotiating Comm., 179 F.3d 982, 985-86 (6th Cir. 1999). This Court has said that a district court, in deciding whether to grant an injunction, abuses its discretion when it "applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact." Schenck v. City of Hudson, 114 F.3d 590, 593 (6th Cir.1997). In Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 892 (6th Cir.2000), we stated:

In deciding whether to grant a preliminary injunction, a district court must consider and balance four factors: (1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief.

Id.

III. ANALYSIS
A. The resolution constitutes a prior restraint on freedom of expression

As we explained in Nightclubs,

A "prior restraint" exists when speech is conditioned upon the prior approval of public officials. Although prior restraints "are not unconstitutional per se," they come to court bearing a heavy presumption against their validity. Prior restraints are presumptively invalid because they typically involve "two evils that will not be tolerated": (1) the risk of censorship associated with the vesting of unbridled discretion in government officials; and (2) "the risk of indefinitely suppressing permissible speech" when a licensing law fails to provide for the prompt issuance of a license.

202 F.3d at 889 (citations omitted). The Supreme Court, in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), held that three procedural safeguards are required to insure that a prior restraint on freedom of expression is constitutional. First, "[a]ny restraint imposed in advance of a final judicial determination on the merits must ... be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution." Id. at 59, 85 S.Ct. 734. Second "the procedure must also assure a prompt final judicial decision...." Id. Third, the burden of proving that the expression in question is unprotected must rest on the government. Id. at 58, 85 S.Ct. 734. We reiterated these points in Nightclubs as follows:

First, the decision whether to issue a license must be made within a "specified brief period," and, if judicial review is sought, the status quo must be preserved pending "a final judicial determination on the merits." Second, the scheme "must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Third, a censorship scheme must place the burden of instituting judicial proceedings and proving that expression is unprotected on the censor rather than the exhibitor.

Nightclubs,...

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2 cases
  • Deja Vu of Cincinnati v. Union Tp. Bd. of Trustees
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 21, 2005
    ...as compared to those with liquor licenses was a violation of the First and Fourteenth Amendments. Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of Trs., 326 F.3d 791 (6th Cir.2003). We granted a rehearing en banc to reconsider whether the resolution is consonant with both the First an......
  • Midvale City Corp. v. Haltom
    • United States
    • Supreme Court of Utah
    • May 16, 2003
    ...the secondary effects of sexually oriented businesses'" and does not violate the First Amendment. Déjà Vu of Cincinnati v. Union Township, 326 F.3d 791, 2003 U.S.App. LEXIS 7720, 2003 FED App. 0122P (6th Cir.2003) (quotations and citations ¶ 26 The issues of discretionary classification and......

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