SBC Enterprises, Inc. v. City of South Burlington

• Decision Date: 30 June 1995
• Docket Number: No. 95-CV-144.,95-CV-144.
• Citation: 892 F. Supp. 578
• Court: U.S. District Court — District of Vermont
• Parties: SBC ENTERPRISES, INC., and Shawn B. Cliche, Plaintiffs, v. CITY OF SOUTH BURLINGTON, Defendant.

892 F. Supp. 578

SBC ENTERPRISES, INC., and Shawn B. Cliche, Plaintiffs, v. CITY OF SOUTH BURLINGTON, Defendant.

No. 95-CV-144.

United States District Court, D. Vermont.

June 30, 1995.

COPYRIGHT MATERIAL OMITTED

Robert H. Anderson, Bauer, Anderson, Gravel & Abare, Colchester, VT, James A. Palminsano, Montpelier, VT, for plaintiffs.

Steven F. Stitzel, Stitzel & Page, P.C., Burlington, VT, for defendant.

Opinion and Order

GAGLIARDI, Senior District Judge.

Plaintiffs are challenging the validity of an ordinance passed by the City Council of South Burlington that prohibits public nudity. Plaintiffs primarily seek to enjoin the enforcement of the ordinance, and they filed a complaint seeking preliminary and permanent injunctions, declaratory judgment, and damages. Of the fourteen substantive counts in the complaint, the first eight are federal claims, including challenges based on the First Amendment, substantive and procedural due process, equitable estoppel, over-breadth, taking property without just compensation, the prohibition of bills of attainder, and equal protection. The other six claims are based on Vermont law. Defendant has filed a Motion for Judgment on the Pleadings, pursuant to Fed.R.Civ.P. 12(c), as to Counts I, II, and IV through XIV.

A hearing on the application for a preliminary injunction was held on June 21, 1995. At that hearing, the parties agreed that the Court should combine the hearings on Plaintiffs' application for preliminary and permanent injunctions. In addition, this presents an occasion to rule on Defendant's Rule 12(c) motion. To the extent that the Court relies on material not included in the pleadings, the motion will be treated as a motion for summary judgment pursuant to Fed.R.Civ.P. 56.

I. Facts

The parties have stipulated to the following facts. Plaintiff SBC Enterprises, Inc., is a Vermont corporation, of which plaintiff Cliche is the sole shareholder. Plaintiffs propose to operate a nightclub offering entertainment, including nude dancing, within the City of South Burlington. On April 17, 1995, a proposed ordinance prohibiting nudity in public (hereinafter "Ordinance") was introduced and read at a public meeting of the City Council. After publication of a notice, the City Council conducted a public hearing on the Ordinance on April 26, 1995, and unanimously adopted the Ordinance and a Resolution concerning the purpose of the Ordinance.¹ Approximately 200 people attended both meetings of the City Council. Plaintiffs filed their complaint on May 12, 1995.

II. Standard for Judgment on the Pleadings and Summary Judgment

Pursuant to Fed.R.Civ.P. 12(c), "judgment on the pleadings is appropriate if, from the pleadings, the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. International Union UPGWA, 47 F.3d 14, 16 (2nd Cir.1995). When ruling on a motion for judgment on the pleadings, the Court must "view the pleadings in the light most favorable to, and draw all reasonable inferences in favor of, the nonmoving party." Davidson v. Flynn, 32 F.3d 27, 29 (2nd Cir.1994) (quoting Madonna v. U.S., 878 F.2d 62, 65 (2nd Cir.1989)).

Summary judgment shall be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court must "view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion...." Gallien v. Connecticut Gen. Life Ins. Co., 49 F.3d 878, 882 (2nd Cir.1995) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

III. Supplemental Jurisdiction

Counts IX-XIV are based on Vermont state law. Plaintiffs request that this Court exercise its supplemental jurisdiction under 28 U.S.C. § 1367. However, the Court declines supplemental jurisdiction for these Counts pursuant to § 1367(c)(3), since the Court is dismissing all federal claims in this order. Even if this were not the case, the Court would decline supplemental jurisdiction under § 1367(c)(1) because the claims raise complex issues of state law. Therefore, Counts IX-XIV are dismissed without prejudice.

IV. Discussion

Count I—Unlawful Prior Restraint

Plaintiffs claim that the Ordinance acts as an unlawful prior restraint on their First Amendment rights. Regardless of any possible First Amendment violation, the Ordinance is clearly not a prior restraint. A prior restraint prevents the publication of particular information or speech that has not yet been published, whereas the Ordinance punishes an individual only after the "speech" has been made and the violator has utilized the complete judicial process. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Plaintiffs' claim raises the issue of the validity of the Ordinance under the First Amendment. The issue of nude dancing in relation to the First Amendment is governed by Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Barnes dealt with an Indiana statute, the wording of which is virtually identical to the South Burlington Ordinance. Id. at 569, n. 2, 111 S.Ct. at 2462, n. 2. A three-Justice plurality, in an opinion written by Chief Justice Rehnquist, held that nude dancing is "expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so." Id. at 566, 111 S.Ct. at 2460. The plurality then applied the four-pronged test set forth in United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968):

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

The plurality upheld the statute, stating that it furthered "a substantial government interest in protecting order and morality." Barnes, supra, at 569, 111 S.Ct. at 2462.

Justice Souter concurred in the judgment, agreeing that nude dancing is expressive conduct under the First Amendment and that the O'Brien test applies. However, Justice Souter upheld the statute "not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments." Barnes, supra, at 582, 111 S.Ct. at 2468-69. This interest in controlling secondary effects need not be articulated by the legislature at the time the law was enacted; rather, it is sufficient if the government has a current interest in preventing secondary effects. Id. Referring to Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), Justice Souter concluded that:

in light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment ... furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition 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,' I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case.

Barnes, supra, at 584-85, 111 S.Ct. at 2470 (citations omitted).

Because Barnes produced no single majority rationale, this Court will apply the analysis of Justice Souter as the most narrow grounds for analyzing the Ordinance at issue, as other lower courts have done.² See, e.g., Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir.1994); Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641 (M.D.Fla.1994).

Under Justice Souter's approach, the Ordinance is valid. Indeed, this Court need not engage in an analysis of the Ordinance beyond reference to Justice Souter's opinion. Because the regulations in the instant case and in Barnes are identical, there is little to add that would explain further why the Ordinance is valid. If anything, this case presents a regulation that is easier to uphold than that in Barnes, since the Resolution passed by the City Council indicates that it considered secondary effects.³

Plaintiffs make two arguments in an attempt to avoid the dictates of Barnes. First, Plaintiffs argue that the Ordinance fails the first prong of the O'Brien test because the City did not have the power to pass the Ordinance. However, Plaintiffs' argument challenges the authority of the municipality under Vermont law, which relates to the state law claims dismissed above. The first prong of O'Brien merely requires that the government have the constitutional power to pass the regulation, a test that is satisfied here under a state's traditional police power to protect public welfare and safety. This Court need not address the City's power under state law.

Second, Plaintiffs wish to present evidence concerning the statements of government agents that purport to establish an improper motive for passing the Ordinance. However, this sort of inquiry has been foreclosed by Supreme Court precedent. See Barnes, supra, at 583, 111 S.Ct. at 2469 (Souter, J. concurring); O'Brien, supra, at 383-84, 88 S.Ct. at 1682-83 ("It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive ..."). Plaintiffs ask this Court to follow International Eateries of America v. Broward County, Fla., 941...