Dodger's Bar & Grill v. JOHNSON COUNTY COM'RS

• Decision Date: 17 February 1993
• Docket Number: Civ. A. No. 92-2289-O.
• Parties: DODGER'S BAR AND 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

815 F. Supp. 399

DODGER'S BAR AND 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-O.

United States District Court, D. Kansas.

February 17, 1993.

Brock R. Snyder, Law Office of Brock R. Snyder, Topeka, KS, John B. Williams, Robert Beaird, Kansas City, MO, for plaintiffs.

LeeAnne Hays Gillaspie, Johnson County Legal Dept., Olathe, KS, Lawrence L. Ferree, III, Ronald C. Rundberg, Ferree, Bunn & Byrum, Chtd., Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Senior 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 the Johnson County Adult Entertainment Code. The case was tried to the court on January 25-26, 1993. The court, having heard the evidence and reviewed the briefs of the parties, makes the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff Dodger's Bar and Grill, d/b/a Bonita Flats Saloon ("Bonita Flats Saloon" or "the club"), is a Class B private club licensed in Kansas. The club is located in unincorporated Johnson County, Kansas, at 20060 West 175th Street. The primary business of the club is the sale of alcoholic beverages. Entertainment is provided at the club by women such as the individual plaintiffs who perform erotic dancing for club patrons.

2. The dancers perform two types of erotic dances: one type of dance is performed on a stage in front of all the club patrons (a "stage dance"), and the other type at the patron's table (a "table dance" or "lap dance"). The latter involves the performer dancing on or near the lap of a seated patron, and typically the dancer straddles the patron's legs or sits on his lap, permitting the patron to fondle her as she dances. Prior to the enactment of the resolution at issue in this case, usually each dancer would begin a lap or table dance attired in a bikini top and thong bottom. If the customer was responsive (i.e., tipping well), the dancer would remove her top. The dancers permitted table or lap dance customers to fondle their buttocks and touch and kiss their breasts.

3. The only compensation the women receive for their work is tips. The dancers report that their income from tips has decreased since enactment of the resolution.

4. Prior to the enactment of the resolution, undercover law enforcement officers at the Bonita Flats Saloon had observed criminal activity at the club, including drug deals, assaults and batteries, and inappropriate conduct during table dances, such as dancers touching the crotches of male patrons and crotch to crotch contact between dancers and their patrons. Sheriff's officers testified that the club was a law enforcement concern because of the number of calls from the club, often involving assault and battery, in most cases severe, and occasionally involving doormen at the club.

5. In early 1992, the Johnson County Board of Commissioners (the "Board") started receiving complaints about the two existing nude dance clubs in unincorporated Johnson County, the Bonita Flats Saloon and the Platinum Club, from residents of the area around the clubs. The neighbors' complaints included at least one incident of a patron urinating in the parking lot outside the club, club patrons shouting obscenities to passersby, 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; this was of particular concern to the women who lived in the area because they were most often the ones followed. About the time these complaints were being received, the Board was advised that someone in the Kansas City area had expressed interest to the Johnson County Planning Department in opening a new nude dancing club near Bonita Flats and the Platinum Club.

6. In February 1992, the Board consulted the Johnson County District Attorney and Johnson County Sheriff, seeking their input on the advisability of regulation and their suggestions on what form of regulation, if any, would be appropriate to address the Board's concerns. The District Attorney and Sheriff agreed with the Board that there needed to be some regulation, especially since most area municipalities had already enacted regulations pertaining to this type of activity, and absent some action, unincorporated Johnson County could become a "safe haven" for nude dancing clubs. The Board was aware of problems associated with similar clubs elsewhere in the Kansas City area because of the attention these clubs were receiving in the media and from local law enforcement authorities. The Board was particularly concerned about public health and safety and the secondary effects (e.g., crime) associated with these clubs. The Board was also made aware of studies that had been conducted in other urban areas pertaining to the secondary effects of topless or nude dancing and other forms of so-called "adult entertainment"; the Board viewed these studies as further evidence that regulations were needed. The Board was also mindful that the area is still developing and needs careful zoning in connection with that growth. Prior to passage of the resolution, the subject was discussed at public meetings of the Board, which were attended by representatives of the plaintiffs and area property owners. At these meetings, area property owners raised some of the same concerns detailed above.

7. On August 6, 1992, the Board adopted Resolutions 67-92 and 68-92, which together comprise the "Adult Entertainment Code." The instant dispute relates only to 67-92, which regulates the performance of erotic dancing in establishments licensed to sell alcoholic beverages. Resolution 68-92 is a zoning statute and is not relevant to this case. In this opinion, the court will refer to 67-92 as simply "the resolution." A copy of 67-92 is attached as Exhibit A.

8. Johnson County Sheriff Allenbrand testified that he understood the resolution and did not anticipate trouble enforcing it. Captain Lewis Hoskins of the Sheriff's Office testified that he had read and understood the resolution and would have no trouble instructing the deputies on what conduct would or would not constitute a violation. Even Jim Baird, manager of the Bonita Flats Saloon, admitted on cross-examination that he understood the terms of the resolution well enough to give the dancers specific instructions on what they were required to wear and what activities were prohibited.

Conclusions of Law

The issue presented by this case is whether the Johnson County resolution is unconstitutional on its face. Plaintiffs challenge the constitutionality of the resolution, claiming it violates their First and Fourteenth Amendment rights. Plaintiffs also contend the resolution is unconstitutionally vague and overbroad.

In California v. LaRue, the United States Supreme Court considered a constitutional challenge to a California administrative regulation very similar to the resolution at issue in this case. See California v. LaRue, 409 U.S. 109, 111-12, 93 S.Ct. 390, 393-94, 34 L.Ed.2d 342 (1972). Like the Johnson County resolution, the California regulation prohibited full nudity, touching or fondling of the breast, buttocks, anus, or genitals, and proscribed the performance or simulation of certain enumerated sex acts. Id. The plaintiffs in LaRue argued that the regulation unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments of the United States Constitution.

The Supreme Court began its analysis by noting that the challenged regulations came to the Court in the context of licensing bars and nightclubs to sell liquor by the drink. Id. at 114, 93 S.Ct. at 395. Therefore, the starting point for the Court's analysis was the Twenty-first Amendment, which provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Id. The state has considerable power under the Twenty-first Amendment:

While the States, vested as they are with general police power, require no specific grant of authority to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.

Id. The Court acknowledged that the California regulation would prohibit some forms of expression protected by the Constitution. Nevertheless, the Court found that the law was constitutional because California had not forbidden such conduct across the board, but only in establishments licensed to sell liquor by the drink. "The Department's conclusion, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have a license was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution." Id. at 118-19, 93 S.Ct. at 397.

The Supreme Court had occasion to revisit the LaRue holding in deciding the case of New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1980). In that case, the State of New York had amended its alcohol control laws to prohibit nude dancing in establishments licensed to sell liquor for on-premises consumption. The plaintiffs argued that the law was a violation of their First Amendment rights. The Supreme Court picked up the theme from LaRue, opening its analysis with an observation that the Court "has long recognized that a State has absolute power under the Twenty-first...