7250 Corp. v. Board of County Com'rs for Adams County
| Decision Date | 09 October 1990 |
| Docket Number | No. 89SA123,89SA123 |
| Citation | 799 P.2d 917 |
| Parties | 7250 CORPORATION, a Colorado corporation, d/b/a Pecos Junction, Plaintiff-Appellee, and Burkey Management, Inc., d/b/a 7000 North Washington, 6700 North Federal and 5580 North Federal, Intervening Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS FOR ADAMS COUNTY; and the Members thereof, Steven E. Cramer, Leo Younger and Harold Kite; Edward Camp in his official capacity as Sheriff for Adams County and James Smith in his official capacity as District Attorney for Adams County; and Donald E. Lunnon, Defendants-Appellants. |
| Court | Colorado Supreme Court |
Irvin Borenstein, Denver, for plaintiff-appellee 7250 Corp..
Arthur M. Schwartz, P.C., Michael W. Gross, Denver, for plaintiff appellee Burkey Management, Inc.
James F. Smith, Adams County Dist. Atty., Steven L. Bernard, Chief Trial Deputy, Brighton, for defendant-appellant James F. Smith, Dist. Atty.
Robert J. Loew, Adams County Atty., Terry Ross, Asst. County Atty., Brighton, for defendant-appellant Adams County.
This case involves the constitutionality of an Adams County ordinance concerning the operation of nude entertainment establishments, not licensed to sell alcoholic beverages. The ordinance places restrictions on the age of the patrons and the employees of such establishments, the physical location of such establishments, and the days and hours during which such establishments will be permitted to operate. 7250 Corporation, doing business as Pecos Junction (hereinafter referred to as Pecos Junction), filed an action in the Adams County District Court against the Adams County Board of County Commissioners and sought declaratory and injunctive relief against the enforcement of the ordinance. Pecos Junction challenged the ordinance on the basis that it violated the Free Speech Clauses of the United States and Colorado Constitutions, U.S. Const. amend. I; Colo. Const. art. II, § 10, and due process and equal protection of the laws under the federal and state constitutions, U.S. Const. amend. XIV; Colo. Const. art. II, § 25. The district court declared the ordinance unconstitutional and enjoined its enforcement. We reverse the judgment. 1
In November 1987, the Adams County Board of County Commissioners enacted Ordinance No. 1, entitled "Nude Entertainment Ordinance," which is appended to this opinion. The ordinance was enacted pursuant to section 30-15-401(1), 12A C.R.S. (1986), which states, in pertinent part, that:
[T]he board of county commissioners has the power to adopt ordinances for control or licensing of those matters of purely local concern which are described in the following enumerated powers:
(l )(I) To adopt reasonable regulations for the operation of establishments open to the public in which persons appear in a state of nudity for the purpose of entertaining the patrons of such establishment; except that such regulations shall not be tantamount to a complete prohibition of such operation. Such regulations may include the following:
(A) Minimum age requirements for admittance to such establishments;
(B) Limitations on the hours during which such establishments may be open for business; and
(C) Restrictions on the location of such establishments with regard to schools, churches, and residential areas.
Subsection (l )(III) of section 30-15-401(1) provides as follows:
Nothing in the regulations adopted by the board of county commissioners pursuant to this paragraph (1) shall be construed to apply to the presentation, showing, or performance of any play, drama, ballet, or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher education, or other similar establishment as a form of expression of opinion or communication The Nude Entertainment Ordinance adopted by Adams County contained a preface in the nature of a declaration of intent or purpose which stated that there are many such establishments in Adams County not holding liquor licenses and not subject to the Colorado Liquor Code and that such establishments "adversely impact the residential neighborhoods in which they are located" by attracting transients, creating parking and traffic problems, increasing crime and noise, decreasing property values, creating safety hazards for children, and contributing to the "overall deterioration of neighborhood quality"; that it is the intent of the county commissioners "to serve a substantial government interest by attempting to preserve the quality and vitality of residential neighborhoods in Adams County"; that "alternative avenues of communication are not unreasonably limited for 'speech' of this nature"; and that the Colorado legislature has expressly authorized the adoption of such an ordinance pursuant to section 30-15-401(1)(l )(I). The ordinance applies to any establishment open to the public "in which persons appear in a state of nudity for the purpose of entertaining such establishment's patrons," but does not apply to any liquor licensed establishment offering nude entertainment, since such establishments are regulated by the Colorado Liquor Code. A person appears in a "state of nudity," according to the ordinance, when such person "is unclothed or in such attire, costume or clothing as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva or genitals." The restrictions imposed on the operation of nude entertainment establishments are as follows:
of ideas or information, as differentiated from the promotion or exploitation of nudity for the purpose of advancing the economic welfare of a commercial or business enterprise.
No one under 21 years of age shall be admitted to any Nude Entertainment Establishment. This minimum age limitation also applies to any employees, agents, servants or independent contractors working on the premises during hours when nude entertainment is being presented.
Nude entertainment shall only be available at Nude Entertainment Establishments from the hours of 4:00 p.m. to 12:00 midnight, Monday through Saturday of each week.
No Nude Entertainment Establishment shall be operated or maintained within 500 feet of any residentially zoned or used property, measured from the closest property line of such residential property to the property line of the Nude Entertainment Establishment.
No Nude Entertainment Establishment shall be operated or maintained within 500 feet of any school or church property, measured from the closest property line of such school or church property to the property line of the Nude Entertainment Establishment.
The ordinance became effective on January 5, 1988, but expressly authorized any establishment operating on that date in violation of the location restrictions to continue operating for a six-month period of amortization, at the end of which compliance with all restrictions would be required. A violation of the ordinance is a class 2 petty offense punishable by a fine of $300 for each separate violation. Three or more violations in any one year period would constitute a public nuisance which could subject the establishment to an abatement action pursuant to the state Public Nuisance Statute, §§ 16-13-301 to -317, 8A C.R.S. (1986 & 1990 Supp.). 2
In December 1987 Pecos Junction filed its complaint for injunctive and declaratory relief in the Adams County District Court. 3 Pecos Junction alleged that the state enabling act, § 30-15-401(1)(l ), 12A C.R.S. (1986), and the Nude Entertainment Ordinance violated the United States and Colorado Constitutions for several reasons, including, as pertinent here, the following: that the state enabling statute violated equal protection of the laws by creating an impermissible distinction between nude entertainment presented in nude entertainment establishments and other forms of nude entertainment presented elsewhere; that the ordinance restricted access to nude entertainment in violation of Pecos Junction's free speech rights; that the ordinance's age restrictions violated the free speech rights of persons under 21 years of age; that the limitations on the hours of operation violated equal protection of the laws; and that the six-month amortization period deprived Pecos Junction of its property in violation of due process of law.
The district court conducted an initial hearing on Pecos Junction's request for a preliminary injunction. It was demonstrated at the hearing that Pecos Junction is currently located in an area of Adams County zoned as a general retail and service district and is within a 500-foot radius of residentially-zoned property. Testimony from Grace Coan of the Adams County Planning and Development Services Department established that there were ten square miles of industrially-zoned property in Adams County, of which at least fifty percent is presently vacant, and that a nude entertainment establishment could locate in those areas with no special permit. Coan also testified that there were 148 industrial buildings on the market and 117 industrially-zoned vacant properties. In addition, Coan stated that there were approximately 1100 square miles of agriculturally-zoned property in the county where a nude entertainment establishment could be located after obtaining a conditional use permit from the Board of County Commissioners.
At the same hearing, Paul Bekkela, the current owner and operator of Pecos Junction, testified that the form of entertainment offered at his establishment consisted of nude dancing. He further testified that any relocation to those areas would require a huge capital investment not within his economic means and that he could not make a profit if he were forced to locate in an industrially-zoned or agriculturally-zoned area. Roy Shuster, a former real estate agent, confirmed that a large capital investment would...
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