Grand Faloon Tavern, Inc. v. Wicker

• Citation: 670 F.2d 943
• Decision Date: 15 March 1982
• Docket Number: No. 80-5834,80-5834
• Parties: GRAND FALOON TAVERN, INC., Plaintiff-Appellant, v. Robert WICKER, Etc., et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 943

670 F.2d 943

GRAND FALOON TAVERN, INC., Plaintiff-Appellant, v. Robert WICKER, Etc., et al., Defendants-Appellees.

No. 80-5834.

United States Court of Appeals, Eleventh Circuit.

March 15, 1982.

Richard L. Wilson, Orlando, Fla., for plaintiff-appellant.

William E. Weller, Cocoa Beach, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before MORGAN, HILL and KRAVTICH, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

On this appeal we are presented with a question of the facial validity of a Cocoa Beach, Florida ordinance prohibiting nude and semi-nude entertainment in establishments where alcoholic beverages are sold. We initially note that the Supreme Court in New York State Liquor Authority v. Bellanca, --- U.S. ----, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), upheld a similar state statute on the basis of authority conferred under the Twenty-first Amendment. Bellanca does not, however, resolve the issue before us because Cocoa Beach, a municipality lacking any delegated regulatory authority under the Twenty-first Amendment, is required to justify the ordinance solely as a legitimate exercise of its police power. ¹ See Bayou Landing, Ltd. v. Watts, 563 F.2d 1172 (5th Cir. 1979). The District Court for the Middle District of Florida concluded that the municipality had justified the incidental burdens on First Amendment rights created by the regulation of nude entertainment and upheld the ordinance. For the reasons stated below, we affirm.

I

Plaintiff-appellant, Grand Faloon Tavern, Inc. (hereinafter plaintiff) is a Florida corporation which operates a tavern within the City of Cocoa Beach, Florida. Defendants-appellees (hereinafter defendants) are the Chief of Police for Cocoa Beach and the members of the Cocoa Beach City Commission at the time the complaint was filed.

In December 1979, the City of Cocoa Beach enacted an ordinance proscribing the actual or simulated exposure of various private parts or female breasts in establishments selling alcoholic beverages. Cocoa Beach, Fla., Ordinance 612 (Dec. 6, 1979). ² At the time the ordinance was passed two establishments, plaintiff's tavern named "Grand Faloon Tavern" and another called the "Booby Trap," offered patrons "topless" dancing as entertainment with alcoholic beverages as refreshment. It is undisputed that enactment of the ordinance was provoked by the distressing situation existing at the Booby Trap. Police records showed that, in response to extensive and varied criminal activity, ³ an inordinate number of police calls had to be made to the Booby Trap. The Cocoa Beach City Commission concluded that the separation of nudity and alcoholic beverages would lessen the drain on the city's resources by reducing the incidence of illicit conduct at establishments affected by the ordinance. Defendants admit, however, that the number of police calls to the Grand Faloon was commensurate with many other taverns in Cocoa Beach that did not offer any form of nude entertainment.

Plaintiff filed suit in United States District Court for the Middle District of Florida seeking injunctive and declaratory relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 to prevent enforcement of the ordinance. Plaintiff challenged the ordinance on grounds that it violated the United States Constitution's guarantees of free speech and expression. The argument made by the plaintiff was essentially that the ordinance reached expression entitled to First Amendment protection, and that the records failed to provide sufficient justification for the resulting burden on constitutional rights.

A final hearing was held at which the only evidentiary materials before the court were the parties' pre-trial stipulations, the parties' pleadings and a deposition of City Police Chief Robert Wicker, which was admitted in evidence as the parties' joint exhibit. No testimony was presented at the final hearing. The trial court after hearing arguments by both counsel concluded that the disputed ordinance was a valid exercise of the municipality's police power under the rationale of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); and Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1975). The court found that "the record reflect(ed) a reasonable basis on which the city could have found a relationship between the policy of the ordinance and the purposes it seeks to accomplish." On appeal, plaintiff primarily challenges this determination, arguing that the ordinance has not been shown necessary to achieve the claimed governmental interest. ⁴

II

Plaintiff's challenge to the Cocoa Beach ordinance is based on a theory of facial invalidity due to overbreadth. Under the doctrine of overbreadth, a court may deny the enforcement of an ordinance that "at the expense of First Amendment freedoms, ... reaches more broadly than is reasonably necessary to protect legitimate (governmental) interests...." Reeves v. McConn, 631 F.2d 377, 383 (5th Cir. 1980). However, as cautioned by the Supreme Court in Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973), the invalidation of a governmental measure for facial overbreadth is a remedy that should be applied "sparingly and only as a last resort." An overbreadth challenge is accordingly disallowed if the measure is readily subject to a limiting construction that would remove the threat of deterrence to constitutionally protected expression. Id.; Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Additionally, where both conduct and expression are involved, the overbreadth of a measure must be both real and substantial, "judged in relation to the (provision's) plainly legitimate sweep." 413 U.S. at 615, 93 S.Ct. at 2917. It is within these limitations that we examine the merits of plaintiff's challenge.

Our analysis of the Cocoa Beach ordinance will essentially be in three parts. First, the scope of the ordinance will be articulated in terms of the constitutional rights implicated. Next we will isolate the nature and extent of the burdens placed on these First Amendment rights by the ordinance. Finally, we will examine the justifications claimed by Cocoa Beach to determine if they are sufficient to authorize the resulting constitutional restrictions under the four step inquiry articulated in United States v. O'Brien. ⁵

III

The real and substantial impact of the Cocoa Beach ordinance is on nude and semi-nude entertainment in taverns. ⁶ The Supreme Court has explicitly recognized that customary barroom dancing, while involving "the barest minimum of protected expression, ... might be entitled to First and Fourteenth Amendment protection under some circumstances." Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561 2568, 45 L.Ed.2d 648 (1974); New York State Liquor Authority v. Bellanca, --- U.S. at ----, 101 S.Ct. at 2600; California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). The question remains, however, whether nude barroom dancing is entitled to the same degree of protection afforded speech clearly at the core of First Amendment values. A plurality of the Court in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (Burger, C. J., Stevens, J., White, J., and Rehnquist, J.) took the position that

(while) the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate....

427 U.S. at 70, 96 S.Ct. at 2452. A majority of the Justices then on the bench (Justice Powell concurring and the four remaining Justices dissenting) took the opposite stance and argued that sexually explicit, non-obscene expression is entitled to the same protection accorded other forms of communication. The latter position has been assumed by those circuits that have faced the issue. See Avalon Cinema Corporation v. Thompson, 667 F.2d 659 (8th Cir. 1981) (en banc); Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1126 (1st Cir. 1981); see also Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 826-28 (4th Cir. 1979). ⁷ We do not need, however, to gamble on whether the analysis of the plurality in Young has since become the majority position of the Supreme Court. Even according nude barroom dancing full constitutional protection we find the record supports a sufficient justification for the incidental burdens produced by the Cocoa Beach ordinance under the test in United States v. O'Brien.

The approach set out in O'Brien is properly applied when a governmental entity seeks to regulate non-communicative elements of an activity and thereby imposes incidental burdens on protected expression. 391 U.S. at 376, 88 S.Ct. at 1678. A regulation is then sufficiently justified, despite its incidental impact on First Amendment rights "(1) if it is within the constitutional power of the government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 377, 88 S.Ct. at 1679.

The only restriction imposed by the Cocoa Beach ordinance is in terms of the place where nude entertainment may be presented. This type of regulation has been recognized as independent of expressive or communicative elements of conduct in other contexts. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (regulation of disruptive noise adjacent to a school); ...