Deja Vu of Cincinnati v. Union Tp. Bd. of Trustees

Citation411 F.3d 777
Decision Date21 June 2005
Docket NumberNo. 00-4420.,No. 00-4529.,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, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, Bradley J. Shafer, Shafer & Associates, Lansing, Michigan, for Appellant. Stephen P. Carney, Office of the Attorney General of Ohio, Columbus, Ohio, Lawrence Edward Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellees.

ON BRIEF:

H. Louis Sirkin, Jennifer M. Kinsley, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, Bradley J. Shafer, Shafer & Associates, Lansing, Michigan, for Appellant. Stephen P. Carney, Douglas R. Cole, Sharon A. Jennings, Office of the Attorney General of Ohio, Columbus, Ohio, Lawrence Edward Barbiere, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellees. Scott D. Bergthold, Law Office of Scott D. Bergthold, Chattanooga, Tennessee, Jack R. Burns, Bellevue, Washington, for Amici Curiae.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and COOK, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER, GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. CLAY, J. (pp. 798-805), delivered a separate opinion concurring in part and dissenting in part, in which DAUGHTREY and COLE, JJ., joined. MARTIN, J. (p. 805), delivered a separate opinion dissenting in part, in which DAUGHTREY and MOORE, JJ., joined.

OPINION

GILMAN, Circuit Judge.

Deja Vu of Cincinnati, L.L.C. operates an adult cabaret in Union Township, Clermont County, Ohio. In 1999, Union 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, Union Township amended the resolution to eliminate the provisions that the district court concluded were likely to be held unconstitutional. Union Township also eliminated other provisions that were not found to be suspect by the district court.

Deja Vu appealed, 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. A divided panel of this court ruled in favor of Deja Vu on the following two points: (1) that the resolution was an unconstitutional prior restraint on protected First Amendment expression because it failed to provide for prompt judicial review of an adverse licensing decision, and (2) that the resolution's more restrictive closing times for adult cabarets without liquor licenses 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 and Fourteenth Amendments. For the reasons set forth below, we AFFIRM the district court's decision to deny in part the preliminary injunction, express NO OPINION on the district court's decision to grant in part the preliminary injunction in light of Union Township's subsequent modification of the resolution, and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

Deja Vu began operating an adult cabaret 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 (the Board) 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 Union 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'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...." Id. § C.

Deja Vu filed its complaint 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 public indecency ordinances may be treated as if they were content-neutral regulations). After the Supreme Court issued its decision in City of Erie, Deja Vu renewed its motion for a preliminary injunction. The district court granted the motion in part, enjoining Union 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, Union 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 "resolution" will be used to refer to current Resolution No. 00-22.

II. ANALYSIS
A. Standard of review

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 Indus. Negotiating Comm., 179 F.3d 982, 985-86 (6th Cir.1999). 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). The following factors are to be considered by a district court in deciding whether to grant a preliminary injunction:

(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.

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir.2000). Like the parties, the district court primarily focused on the first of these four factors — whether Deja Vu is likely to succeed on the merits of its claims. We look at each of these claims in turn.

B. Prompt judicial review
1. Quasi-judicial proceeding

Deja Vu claims that the resolution is unconstitutional on its face because it fails to provide for prompt judicial review when an application for a license is denied. Citing M.J. Kelley Co. v. City of Cleveland, 32 Ohio St.2d 150, 290 N.E.2d 562 (1972), Deja Vu contends that the resolution does not allow for the type of "quasi-judicial proceeding" required for an appeal to lie pursuant to Ohio Revised Code § 2506. Id. at 563 (Syllabus ¶ 1) ("[A]dministrative actions of administrative officers and agencies not resulting from quasi-judicial proceedings are not appealable to the Court of Common Pleas under the provisions of R.C. 2506.01.").

In its original memorandum and order, the district court did not address Deja Vu's argument on this point. It did, however, rule on the issue after Deja Vu again raised the argument in a motion to alter or amend the judgment. After finding that the enabling legislation passed by Ohio to allow townships to regulate adult cabarets, Ohio Rev.Code § 503.57, "provides for appeal of a denial or revocation by the Board of Trustees of a permit to operate an adult cabaret," the district court denied Deja Vu's request for a preliminary injunction on this basis.

Under the resolution, an applicant for an adult cabaret license is permitted to "present information, evidence, and testimony to the Board, at a public hearing regarding the application." Resolution No. 00-22 § (F)(1). The Board must make a decision on the application within 30 days of the application's submission. Id. As set forth in the Ohio Revised Code, "[a]ny person adversely affected by an order of the board denying or revoking a permit to operate an adult cabaret may appeal from the order of the board to the court of common pleas ... in accordance with Chapter 2506[ ] of the Revised Code." Ohio...

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