O'Connor v. City and County of Denver

• Decision Date: 29 January 1990
• Docket Number: No. 87-2434,87-2434
• Parties: Dennis O'CONNOR and United Theaters Incorporated, d/b/a Empress Theater, 111 South Broadway, Inc., d/b/a After Dark and Matties Theatre, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, an incorporated municipality; L. Bellio; Dean Jones; Dale Wallis; Steve Rosengren; Mark Leone; and Terry Ball, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1210

894 F.2d 1210

Dennis O'CONNOR and United Theaters Incorporated, d/b/a Empress Theater, 111 South Broadway, Inc., d/b/a After Dark and Matties Theatre Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, an incorporated municipality L. Bellio; Dean Jones; Dale Wallis; Steve Rosengren; Mark Leone; and Terry Ball Defendants-Appellees.

No. 87-2434.

United States Court of Appeals Tenth Circuit.

Jan. 29, 1990.

Rehearing Denied March 12, 1990.

Michael W. Gross of Arthur M. Schwartz, P.C., Denver, Colo., for plaintiffs-appellants.

Stan M. Sharoff, Asst. City Atty. (Stephen H. Kaplan, City Atty., with him on the brief), Denver, Colo., for defendants-appellees.

Before BALDOCK and BRORBY, Circuit Judges, and WRIGHT, Senior Circuit Judge. ^*

BRORBY, Circuit Judge.

Pursuant to 42 U.S.C. Secs. 1983 and 1988 (1982) Dennis O'Connor (O'Connor); United Theaters Incorporated, d/b/a Empress Theater (the Empress); and 111 South Broadway, Inc., d/b/a After Dark and Matties Theatre (the After Dark) (the Empress and the After Dark are referred to jointly as the Theatres) sought declaratory and injunctive relief against the enforcement of Denver Municipal Code Secs. 7-11 through 7-40 (the Code) pertaining to licensing of "entertainments". The plaintiffs claimed that the Code stood in violation of their rights under the First and Fourteenth Amendments to the United States Constitution. In addition, the Theatres sought damages for the closure of their businesses under the Code. O'Connor sought damages resulting from his arrest and detention for operating without a license in violation of the Code. After a trial to the court, ¹ the court ordered entry of judgment for the defendants, the City and County of Denver and various law enforcement officers in their official capacities, and against the plaintiffs. The trial court concluded that the plaintiffs were not entitled to nominal damages or attorney fees. O'Connor and the Theatres appeal the judgment entered on the trial court's opinion. We AFFIRM.

I. FACTS

111 South Broadway, Inc. is a Colorado corporation that owns and operates the After Dark and Matties Theatres in Denver, Colorado. United Theatres, Inc. is a Colorado corporation that owns and operates the Empress Theater, also in Denver. Both the Empress and the After Dark exhibit sexually explicit motion picture films. Each of the theatres held amusement licenses from the Department of Excise and Licenses of the City and County of Denver (the Department). At the time of the incidents giving rise to the action below, O'Connor was a cashier at the Empress.

Pursuant to an order to show cause issued by the Director of Excise and Licenses (the Director), Martin J. Baker, holder of the license for the Empress, was summoned to appear before the Department for a hearing to suspend or revoke its amusement license. The order to show cause why the Department should not suspend the license stemmed from allegations that patrons of the theater were engaging in public sex acts in violation of Denver's public indecency ordinances. After a hearing on July 25, 1984, the Department's hearing officer found that Martin Baker provided dimly lit areas where indecent acts took place and provided no supervision of these areas. ² The hearing examiner recommended suspension or revocation of the Empress' license based on the owner's failure to prevent indecent acts from being committed in his establishment. The Director subsequently adopted the hearing officer's findings and set a penalty hearing, which was not held until April 15, 1985. At the penalty hearing, the City Attorney presented 126 Denver Police Department Vice and Drug Control Bureau case summary sheets documenting the same number of citations for acts of public indecency committed by Empress patrons between January 5, 1983, and February 15, 1985. On May 20, 1985, pursuant to Sec. 7-39 of the Code, the Director issued a written order revoking the Empress' amusement license.

Contending the entire licensing scheme was unconstitutional, the Empress elected to remain open. When O'Connor reported to work on July 23, 1985, he was arrested and jailed for operating without an amusement license in violation of Sec. 7-26 of the Code. On August 2, 1985, the Empress and O'Connor commenced an action in the District Court in and for the City and County of Denver, Colorado, seeking injunctive and declaratory relief and damages. On August 21, 1985, the Empress and O'Connor filed a Petition for Removal to the United States District Court for the District of Colorado.

Meanwhile, on July 10, 1985, the Director summarily suspended the amusement license of the After Dark, which was held by 111 S. Broadway, Inc. The order was entered as a result of a complaint filed with the Director by the city attorney's office, which included sixty-five case summary sheets representing a like number of criminal citations for public indecency issued to patrons of the After Dark. The citations were issued for a wide variety of public sex acts including masturbation, fellatio and sexual intercourse. A hearing was held July 23-24, at which four Denver police officers testified as to various acts they had witnessed. One officer also testified about a group of five booths in a row with so-called "glory holes" cut in the shared walls at waist level. The booths were completely dark and were the site of sexual acts between unknown partners. The trial court found and the parties do not challenge the fact that it was impossible to view films shown in the theater from inside the booths.

Based upon the evidence presented at the hearing, the Director revoked the After Dark's license. The After Dark immediately filed the complaint in the instant action seeking declaratory and injunctive relief against the enforcement of Denver's allegedly unconstitutional licensing scheme. The district court consolidated the After Dark's action with that of the Empress and O'Connor. While state and federal actions were pending, the Director granted the issuance of the After Dark's new amusement license. ³ Furthermore, during the pendency of the federal lawsuit, the City repealed Secs. 7-26, 7-39 and 7-40, and replaced these sections with revised Sec. 7-26.

II. STANDING AND MOOTNESS

The district court concluded that O'Connor and the Theatres had standing to assert the unconstitutionality of the repealed Denver Municipal Code sections, but lacked standing to assert the unconstitutionality of the revised version of the Code due to the fact they had abandoned their claim. O'Connor, the Empress and the After Dark argue the court erred in so ruling. They assert they have standing to challenge the constitutionality of the revised ordinance because it remains substantially similar to the one which the City repealed. Appellants' Brief at 12-15. We do not agree. We hold that because O'Connor and the Theatres abandoned their claim at trial, they lack standing to assert the unconstitutionality of the revised version of the Code.

" 'Standing doctrine is designed to determine who may institute the asserted claim for relief.' " ACORN v. City of Tulsa, Okla., 835 F.2d 735, 738 (10th Cir.1987) (emphasis omitted) (quoting Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C.Cir.1986)). In order to avoid futile proceedings, we determine whether the matter involves injury (actual or threatened) and whether judicial action is likely to redress the injury.

The constitutional dimension of standing derives from article III, which limits the judicial power of the United States to "cases" and "controversies." In order to satisfy the article III restrictions on standing, a party must show at least that he or she has suffered an actual or threatened injury caused by the defendant and that a favorable judicial decision is likely to redress the injury.

Id. at 738 (citing Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982)). Absent this showing, a court need not entertain the parties' contentions.

Within the First Amendment context, courts properly apply an expanded notion of standing to determine who may institute the asserted claim for relief. "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). Parties "who have not actually engaged in protected activity are allowed to challenge a statute that inhibits others from engaging in protected speech or expression." ACORN v. City of Tulsa, 835 F.2d at 738 (citing Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984)); see Association of Community Orgs. for Reform Now, ("ACORN") v. Municipality of Golden, Colo., 744 F.2d 739, 745 n. 3 (10th Cir.1984). Under these principles, O'Connor and the Theatres argue they have standing to challenge the constitutionality of the revised portions of the Code.

This expanded notion of standing, however, has no application in the instant case. Standing to raise an issue does not preserve for appeal a claim abandoned at trial. Stated differently, the standing doctrine does not undo the parties' trial strategy or their decisions regarding how to fashion their case. We do not consider on appeal issues not raised in the district court. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989). Similarly, we will not consider claims abandoned in the district court.

At trial, O'Connor and the Theatres limited their case to the constitutionality of the repealed Code. Although the trial court's Supplemental Pre-Trial Order, indicates that O'Connor and the Theatres challenged the...