Dodger's Bar & Grill v. Johnson County Bd. of Com'rs

• Decision Date: 15 May 1995
• Docket Number: Civ. A. No. 92-2289-EEO.
• Citation: 889 F. Supp. 1431
• Parties: DODGER'S BAR & GRILL, d/b/a Bonita Flats Saloon, et al., Plaintiffs, v. The JOHNSON COUNTY BOARD OF COMMISSIONERS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

889 F. Supp. 1431

DODGER'S BAR & GRILL, d/b/a Bonita Flats Saloon, et al., Plaintiffs, v. The JOHNSON COUNTY BOARD OF COMMISSIONERS, et al., Defendants.

Civ. A. No. 92-2289-EEO.

United States District Court, D. Kansas.

May 15, 1995.

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Brock R. Snyder, Law Office of Brock R. Snyder, Topeka, KS, John B. Williams, Robert Beaird, Kansas City, MO, for plaintiffs Dodger's Bar & Grill, Inc., a Corp. dba Bonita Flats Saloon, Rhondi Davis, Sheila King, Elizabeth Lucas, Rhonda Wheeler, Serena Parker, Melissa Jones, Melissa Finney, Cheri Davidson, Tammy Scheumeister, Anita Bower, Marley Weston, Suzy Kelly, Rachal Workman, Brooke Utz, Debra Maness, Gena Lilly, Laurie Boyer, Shelley Stewart, Vicki Smith, Jessica Allen, Deanna Hurst, Brenda Shook, Cyndi Schmidt, Susan Prince, Kristi Martin, Angela Thomas, Desiree Edwards, Orissa Hanson, Jackie Arnett, Robin Packard, Nicole Hestand, Jana Sullins, Nancy Sesler, Hester Ramey, Lewana Duncan, Sandy Watson, Chrissie Malloy, Tina L. Smith.

LeeAnne Hays Gillaspie, Johnson County Legal Dept., Olathe, KS, for defendants Johnson County Bd. of County Com'rs, Johnna (NMI) Lingle, Chair, Sue E. Weltner, Bruce R. Craig, Murray L. Nolte, Dan (NMI) Hosfield, Johnson County Com'rs, Paul (NMI) Morrison, Johnson County Dist. Atty.

Lawrence L. Ferree, III, Ronald C. Rundberg, Ferree & Bunn, Chtd., Overland Park, KS, for defendant Fred Allenbrand, Johnson County Sheriff.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This is an action brought by the plaintiffs, pursuant to 42 U.S.C. § 1983, seeking injunctive relief and declaratory judgment prohibiting the defendants from enforcing Chapter 2 of the Johnson County Adult Entertainment Code ("Adult Entertainment Code" or "AEC"), Resolution 68-92.¹ The case, which also included a challenge to Chapter 1 of the Adult Entertainment Code, Resolution 67-92,² was tried to the court on January 25-26, 1993.

On February 17, 1993, the court upheld Resolution 67-92 as constitutional and entered judgment for defendants. Dodger's Bar & Grill v. Johnson County Bd. of County Comm'rs, 815 F.Supp. 399, 401-04 (D.Kan. 1993). The court did not, however, address plaintiffs' challenge to Chapter 2 of the Adult Entertainment Code, Resolution 68-92. Id. at 401.

On appeal, the Tenth Circuit affirmed as to Resolution 67-92, but remanded the case for a determination of constitutionality of Resolution 68-92. Dodger's Bar & Grill, Inc. v. Johnson County Bd. of County Comm'rs, 32 F.3d 1436, 1445 (10th Cir.1994).

The court made extensive findings of fact and conclusions of law in our order of February 17, 1993. Dodger's Bar, 815 F.Supp. at 400-01. To the extent relevant, those findings of fact and conclusions of law are incorporated herein. In addition, after considering all the evidence from trial and the supplemental briefs submitted by the parties, the court is now prepared to rule on plaintiffs' challenge to Resolution 68-92.

Plaintiffs challenge the constitutionality of the following clause of the resolution:

... nor shall any person allow or permit such acts prohibited by Chapter 1 to occur in any room, building premises or place within 1,000 feet of a licensed premises or other business premises covered by this Chapter.

Adult Entertainment Code, Resolution 68-92, Chapter 2, Article III, Section 5 (1992). We must determine whether the challenged portion of Section 5 of Resolution 68-92 is unconstitutional on its face. Plaintiffs claim that it violates their First and Fourteenth Amendment rights and is unconstitutionally overbroad and vague.

1. The Twenty-first Amendment

We upheld Resolution 67-92 of the Adult Entertainment Code under the Twenty-first Amendment. Dodger's Bar, 815 F.Supp. at 401-03. The Tenth Circuit affirmed stating:

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, 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."

Dodger's Bar, 32 F.3d at 1441 (quoting California v. LaRue, 409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972)). Clearly, states have authority under the Twenty-first Amendment to enact laws that regulate business establishments offering sexually-oriented entertainment along with dispensation of liquor by the drink on the same premises. See, e.g., California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972); New York Liquor Authority v. Bellanca, 452 U.S. 714, 717, 101 S.Ct. 2599, 2601, 69 L.Ed.2d 357 (1981); Dodger's Bar, 32 F.3d at 1441.

Plaintiffs argue that because Section 5 of Resolution 68-92 prohibits conduct beyond the interior boundaries of a liquor establishment, the Twenty-first Amendment may not be invoked to authorize the regulation. They argue that under Bellanca, 452 U.S. 714, 101 S.Ct. at 2600, and LaRue, 409 U.S. 109, 93 S.Ct. at 392-93, only conduct within the premises of a liquor establishment may be regulated under the Twenty-first Amendment.

We do not read LaRue or Bellanca to limit the reach of the Twenty-first Amendment to the physical area inside the premises of an establishment which sells liquor, but rather to require that the regulated area have a reasonable relationship to the premises where liquor is sold. In Bellanca, the Supreme Court contrasted a regulation which applied only to "establishments which are licensed by the State to serve liquor" from an ordinance considered in Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), which prohibited females from appearing topless in "any public place." Bellanca, 452 U.S. at 716, 101 S.Ct. at 2601. The court upheld the Bellanca ordinance as a constitutional exercise of the state's police power. Id. at 718, 101 S.Ct. at 2601-02. We believe the Supreme Court's holdings in LaRue and Bellanca can properly be extended to permit regulation under the Twenty-first Amendment of areas within close proximity to a liquor establishment.

In the instant case, the focal point of Resolution 68-92 is the premises on which alcohol is served. As such, the regulated area bears a reasonable relationship to the liquor establishment. Our review of Resolution 68-92 is, therefore, properly framed by the Twenty-first Amendment.

Having determined that Resolution 68-92 may be reviewed under the Twenty-first Amendment, we now turn to whether the resolution is a constitutional exercise of state police power. Under the Twenty-first Amendment, as long as the resolution does not impinge upon a "fundamental right," defendant need only articulate a rational basis for the regulation. See Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846-47, 92 L.Ed.2d 140 (1986). The Supreme Court has not recognized a fundamental right to either unrestrained nude dancing or sexually-oriented behavior in all settings. See Dodger's Bar, 32 F.3d at 1441. Therefore, the county need only articulate a rational basis for their exercise of police power. Id.

The defendants assert two bases for Article III, Section 5 of Resolution 68-92. First, they contend that the primary purpose of this portion of the resolution is to prohibit bar owners, entertainers, or others from setting up a trailer, recreational vehicle, or other separate structure to facilitate conduct that is otherwise prohibited inside the licensed premises by Resolution 67-92. Second, they assert that the challenged portion of Resolution 68-92 is designed to prevent the same secondary effects discussed with regard to Resolution 67-92.

The Tenth Circuit held that these secondary effects provide a rational basis for Resolution 67-92:

Evidence of assaults, batteries, drug deals, and inappropriate intimate conduct between nude dancers and patrons at the plaintiffs' clb sic combined with the fears of Johnson County residents about their personal safety provide a rational basis to justify the challenged regulation.

Dodgers Bar, 32 F.3d at 1441. In addition, we noted in our prior opinion that many of the safety concerns of Johnson County residents relate to behavior occurring outside the "licensed premises":

The neighbors' complaints included at least one incident of a patron urinating in the parking lot outside the club, club patrons shouting obscenities to passers-by, damage to fences, gates, and other property, and drunk drivers on the roads. Neighbors also told the Board that men leaving the club would follow them in their cars.

Dodger's Bar, 815 F.Supp. at 400.

We conclude that the county's stated concerns over enforcement and secondary effects establish a rational basis for the 1,000-foot provision extending the AEC to conduct occurring outside, but within reasonable proximity to, a "licensed premises." Accordingly, the challenged portion of Section 5 of Resolution 68-92 does not violate the United States Constitution.

2. Overbreadth

The overbreadth doctrine permits a plaintiff, who is otherwise without standing, to challenge a statute on the ground that it purports to inhibit constitutionally protected speech or behavior by reaching protected, as well as unprotected, conduct. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914-15, 37 L.Ed.2d 830 (1973). We must determine whether the challenged portion of Resolution 68-92 "reaches a substantial amount of constitutionally protected conduct." Dodger's Bar, 32 F.3d at 1442 (citation omitted). If the resolution does not infringe upon such conduct, plaintiffs' overbreadth challenge will fail. Id.

Application of the overbreadth doctrine is "manifestly, strong medicine," which must be used sparingly. Broadrick v. Oklahoma, 413 U.S. at 613, 93 S.Ct. at 2916. "Facial overbreadth has not been invoked when a limiting construction has been or could be placed on...