Blue Movies Inc v. Louisville/jefferson County Metro Gov't

• Decision Date: 26 August 2010
• Docket Number: No. 2007-DV-000812-DG.,2007-DV-000812-DG.
• Parties: BLUE MOVIES, INC., d/b/a Love Boutique; Berry Boulevard Entertainment, Inc., d/b/a The Adult Toy Store; American Pride VI, Inc., d/b/a Lion's Den Adult Superstore; Taylor Boulevard Theatre, Inc., d/b/a Erotic Touch; TBC, Inc., d/b/a Metro Station; Danny's Inc., d/b/a Thorobred II; Entertainment Enterprises, Inc., d/b/a The Godfather; Gold Coast, Inc., d/b/a Thorobred III; Hayes Entertainment, Inc., d/b/a Thorobred IV; LLL, Inc., d/b/a Greenlight Lounge; Phat's Bar & Grill, Inc., d/b/a Phat's Bar & Grill; Riverview Entertainment, Inc., d/b/a Thorobred VI; South Dixie Entertainment, Inc., d/b/a Thorobred VII; Kentucky Restaurant Concepts, Inc., d/b/a PT's Showclub; Taylor Boulevard Theatre, Inc., d/b/a Déjà Vu; Teddy's Inc., d/b/a Thorobred V; Thorobred Inc., d/b/a Thorobred Lounge; Foxy Lady, Inc., d/b/a Foxy Lady Gentlemen's Club; Tinsley's Central Bar, Inc., d/b/a Bear Necessities, Inc.; Win Place and Show Bar, Inc., d/b/a Win, Place & Show Bar, Appellants,v.LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, Appellee.
• Court: United States State Supreme Court — District of Kentucky

317 S.W.3d 23

BLUE MOVIES, INC., d/b/a Love Boutique; Berry Boulevard Entertainment, Inc., d/b/a The Adult Toy Store; American Pride VI, Inc., d/b/a Lion's Den Adult Superstore; Taylor Boulevard Theatre, Inc., d/b/a Erotic Touch; TBC, Inc., d/b/a Metro Station; Danny's Inc., d/b/a Thorobred II; Entertainment Enterprises, Inc., d/b/a The Godfather; Gold Coast, Inc., d/b/a Thorobred III; Hayes Entertainment, Inc., d/b/a Thorobred IV; LLL, Inc., d/b/a Greenlight Lounge; Phat's Bar & Grill, Inc., d/b/a Phat's Bar & Grill; Riverview Entertainment, Inc., d/b/a Thorobred VI; South Dixie Entertainment, Inc., d/b/a Thorobred VII; Kentucky Restaurant Concepts, Inc., d/b/a PT's Showclub; Taylor Boulevard Theatre, Inc., d/b/a Déjà Vu; Teddy's Inc., d/b/a Thorobred V; Thorobred Inc., d/b/a Thorobred Lounge; Foxy Lady, Inc., d/b/a Foxy Lady Gentlemen's Club; Tinsley's Central Bar, Inc., d/b/a Bear Necessities, Inc.; Win Place and Show Bar, Inc., d/b/a Win, Place & Show Bar, Appellants,v.LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, Appellee.

No. 2007-DV-000812-DG.

Supreme Court of Kentucky.

April 22, 2010.

Rehearing Denied Aug. 26, 2010.

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Edward Brian Davis, Paul S. Gold, Charles Michael Hatzell, Hatzell & Groves, Frank Mascagni III, Ronald Ludlow Cook, David Stuart Stevenson, Smith & Helman, Louisville, KY, H. Louis Sirkin, Sirkin, Pinales & Schwartz, LLP, Cincinnati, OH, Bradley J. Shafer, Shafer & Associates, P.C., Lansing, MI, Counsel for Appellants.

Winston King, Assistant County Attorney, N. Scott Lilly, Second Assistant County Attorney, William P. O'Brien, Louisville/Jefferson County Metro Government, Director of Civil Division, Louisville, KY, Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN, Counsel for Appellee.

Christopher S. Burnside, Griffin Terry Sumner, Frost Brown Todd LLC, Louisville, KY, Counsel for Amicus Curiae Reclaim Our Culture Kentuckiana, Inc.

Opinion of the Court by Justice SCHRODER.

This Court granted discretionary review of a Court of Appeals opinion adjudging that the Louisville/Jefferson County Metro Government's 2004 amendments to its code of ordinances, which placed numerous restrictions on adult entertainment businesses in the Metro area, were constitutional. Having considered the record and arguments of counsel, we adjudge that all of the restrictions, except for the blanket “no touch” provision, are constitutional. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

FACTS

Appellants represent two types of adult entertainment businesses which operate in the Louisville Metro area: live entertainment establishments that sell alcohol (with the exception of one business); and retail businesses that do not sell alcohol. On March 1, 2004, Appellee, the Louisville/Jefferson County Metro Government (“Metro”), enacted Ordinance 21, Series 2004, which amended Chapter 111 of its Code of Ordinances. The amendments pertained to adult entertainment businesses in the Louisville Metro area, and the stated purpose of the amendments was to combat the adverse secondary effects of sexually oriented adult entertainment businesses. Appellants objected to the following provisions in the amendments: the licensing scheme (owner/officer disclosure, licensing fees, criminal disability provision); the anti-nudity provisions; restrictions on the hours of operation; no direct tipping provision; prohibition on sales of alcohol; buffer zones between patrons and dancers; and a “no touch” provision.

Appellants filed suit in Jefferson Circuit Court on March 5, 2004, challenging the amendments to Chapter 111 on numerous state constitutional grounds. Thereafter, Metro removed the case to federal court and Appellants filed a motion to remand. The federal court granted Appellants' motion, deciding that it lacked jurisdiction under 28 U.S.C. § 1441 because Appellants did not make any claims under the federal Constitution.

The Jefferson Circuit Court granted summary judgment for Metro as to all the challenged provisions in the amendments except the requirement of disclosure of principal owners and the “no touch” provision, granting Appellants' motion for temporary injunction only as to enforcement of those two provisions. An appeal and a cross-appeal to the Court of Appeals followed.

On October 5, 2007, the Court of Appeals rendered its opinion wherein it upheld all of the challenged provisions, affirming the circuit court as to all the rulings adverse to Appellants and reversing on cross-appeal as to the two provisions construed in Appellants' favor. The case is now before us on Appellants' motion for discretionary review.

Because this case involves the construction and constitutionality of the ordinance at issue, our review of the case will be de novo. Commonwealth v. Jameson, 215 S.W.3d 9, 15 (Ky.2006) cert. denied, 552 U.S. 825, 128 S.Ct. 190, 169 L.Ed.2d 36 (2007). At the outset, we note that many of the issues in this case are controlled by Jameson, and Restaurant Ventures LLC v. Lexington-Fayette Urban County Government, 60 S.W.3d 572 (Ky.App.2001), two cases reviewing the constitutionality of local government ordinances regulating sexually oriented adult entertainment businesses.

In Jameson, this Court provided a thorough analysis of the United States Supreme Court decisions in the area of regulating nude dancing and sexually oriented businesses, some of which were plurality opinions, up through the Court's decision in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). We have nothing to add to this analysis and are not inclined to depart from any of the reasoning or conclusions reached in Jameson. While state courts are free to expand individual rights beyond the federal floor see Commonwealth v. Wasson, 842 S.W.2d 487, 492 (Ky.1992), we adjudge that on the issue of regulating sexually oriented businesses, the Kentucky Constitution does not grant broader protections than the federal Constitution, except for the blanket ban on touching as discussed below. Thus, we reject Appellants' urging that we adopt the Pennsylvania courts' expansive view on erotic expression in interpreting § 1 and § 8 of the Kentucky Constitution.

The amendments to Metro's ordinance herein implicate at least two protected categories of speech. First, there is the sexually explicit, but not obscene, speech associated with the retail businesses, such as adult books and videos. Secondly, there is the “symbolic speech” associated with the nude or semi-nude dancing at the live entertainment establishments. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (wherein a plurality held that nude dancing was “expressive conduct within the outer perimeters of the First Amendment”). “[R]egulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). However, “content-neutral” time, place, and manner regulations which restrain speech will be upheld as constitutional if they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. Id. at 47, 106 S.Ct. 925. If the regulations are content-based, they are subject to strict scrutiny. City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). If the regulations governing a sexually oriented business are unrelated to the suppression of expression, they are content-neutral and thus subject to the intermediate standard of scrutiny set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O'Brien, the Court articulated the following four-part test for evaluating regulations affecting sexually oriented businesses:

[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.

Id. at 377, 88 S.Ct. 1673.

In Jameson, this Court found that the restrictions (no nudity, no physical contact, and limited hours) on sexually oriented businesses were content-neutral because they were enacted to prevent the negative secondary effects of such businesses-increased crime, lowered property values, and sexually transmitted diseases. 215 S.W.3d at 28. In the present case, Metro enacted the amendments to the ordinance regulating sexually oriented businesses to combat the following secondary effects: adverse effects on nearby parks houses, and schools; urban blight; crime (including organized crime); prostitution; spread of sexually transmitted diseases; unsanitary conditions; public indecency; lewdness; loitering; illicit drug use and trafficking; negative impacts on property values; pornographic litter; sexual assault and exploitation; public indecency; obscenity; and noise. In addition, Metro cited to numerous reports and judicial opinions that have recognized or documented the adverse secondary effects of sexually oriented businesses.

PROVISIONS GOVERNED BY JAMESON OR RESTAURANT VENTURES

The anti-nudity, six-foot buffer zone, 18-inch stage height, and limited hours of operation provisions in the ordinance are all provisions that were addressed and upheld in Jameson and/or Restaurant Ventures. The buffer zone and stage height provisions are identical to those in Restaurant Ventures, and the restrictions on hours of operation in Metro's ordinance (cannot operate from 1:00 am-9:00 am) are more generous than those upheld in Restaurant Ventures (cannot be...