Boyd v. County of Henrico

• Citation: 592 S.E.2d 768,42 Va. App. 495
• Decision Date: 24 February 2004
• Docket Number: Record No. 0381-02-2.,Record No. 0380-02-2,Record No. 0377-02-2
• Court: Court of Appeals of Virginia
• Parties: Sharon C. BOYD v. COUNTY OF HENRICO. Dianna Lee White v. County of Henrico. Donna Jean White v. County of Henrico.

592 S.E.2d 768

42 Va. App. 495

Sharon C. BOYD v. COUNTY OF HENRICO.

Dianna Lee White v. County of Henrico.

Donna Jean White v. County of Henrico.

Record Nos. 0377-02-2, 0380-02-2, 0381-02-2.

Court of Appeals of Virginia, Richmond.

February 24, 2004.

C. David Whaley (Anthony G. Spencer; Morchower, Luxton & Whaley, on brief), Richmond, for appellants.

Michael V. Gerrard, Deputy Commonwealth's Attorney, for appellee.

Amicus Curiae: Local Government Attorneys of Virginia, Inc. (Andrew McRoberts, Goochland County Attorney; Walter C. Erwin, Lynchburg City Attorney, on brief), for appellee.

Present: FITZPATRICK, C.J., BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY and McCLANAHAN, J.T.

UPON REHEARING EN BANC

D. ARTHUR KELSEY, Judge.

The trial court convicted Sharon Boyd, an erotic dancer, of violating Henrico County's public nudity ordinance. The two owners of the strip club, Dianna Lee White and Donna Jean White, were convicted of aiding and abetting Boyd's violation. They now appeal, claiming their misdemeanor convictions should be overturned on various theories. A divided panel of our Court vacated all three convictions. Boyd v. County of Henrico, 41 Va.App. 1, 581 S.E.2d 863 (2003). Having reconsidered the matter en banc, we reject appellants' challenge to the public nudity ordinance and affirm their convictions.

I.

Henrico enacted its public nudity ordinance in 1982. Its text tracks the language of similar public nudity ordinances adopted across the Commonwealth.¹ The Henrico County Board of Supervisors explained its legislative intent in enacting the ordinance this way:

The purpose of this ordinance is to make unlawful displays of public nudity in the County, which are deemed offensive to public morality and injurious to the health, safety and general welfare of County citizens, regardless of whether such nudity would or would not in any specific instance be deemed obscene. The ordinance contains exceptions for exhibitions and other performances in institutions or establishments, such as theaters and concert halls, primarily devoted to expressions of opinion, communication, speech, ideas, information, art or drama. The ordinance is based on similar legislation enacted in York County and the City of Virginia Beach,² to mention two examples.

Since 1982, thirty-eight individuals had been prosecuted under the public nudity ban. This one case involves the only application of the ordinance against erotic dancers.

On July 6, 2001, officers from the Henrico County Police Department went to a newly opened erotic club named Gold City Showgirls. While there, the officers observed ten female dancers strip down to "pasties" and "G-strings" in exchange for tips. The officers issued summonses to the ten dancers they observed, including Boyd, for violating the public nudity ordinance and to a club manager, Donna White, for aiding and abetting the violations.³ On July 8, 2001, the officers returned and observed the same type of semi-nude dancing. The officers issued a summons to Dianna White, the manager on duty, and a second summons to Boyd.

After being found guilty in general district court, appellants appealed to circuit court. In the meantime, the owners of Gold City and two erotic dancers filed a civil action in United States District Court for the Eastern District of Virginia asserting that the ordinance should be declared unconstitutional and the state prosecution enjoined. The federal district court abstained from ruling on this issue. Colonial First Props., LLC v. Henrico County Virginia, 166 F.Supp.2d 1070 (E.D.Va.2001). The state circuit court case went to trial in late 2001. The parties to the criminal case agreed that depositions taken in the federal case could be submitted de bene esse to the state court. The parties, however, did not agree to submit to the state trial court the transcript of the federal court proceeding. Nor did they stipulate to any factual findings made by the federal district court during the abstention hearing.⁴

The trial court rejected appellants' constitutional challenges and heard the cases on the merits. At trial, appellants admitted the dancers wore "pasties" and "G-strings" on July 6 and July 8, 2001. The dancers conceded that their state of undress violated the public nudity ordinance, but instead claimed that their striptease act fell within the exemption in the ordinance for the performance of "any play, ballet, drama, tableau, production or motion picture" in a theater, concert hall, or the like. Henrico County Code § 13-107(c).⁵ After hearing testimony from eight dancers and the two owners of Gold City, the trial court found as a fact that Gold City was not a "theater" under the ordinance and the dancers were not engaged in any "theatrical performance either."

II.

Appellants challenge the public nudity ordinance on various grounds. They contend that (a) the public nudity ordinance infringes on their First Amendment right to erotic dancing; (b) the ordinance should be declared void for vagueness; (c) the County violated equal protection principles by selectively enforcing the ordinance against them; (d) the County has no delegable authority from the General Assembly to enact this ordinance; and (e) the evidence proves their entitlement to the theater exemption to the ordinance.⁶ We begin our analysis with basic principles of judicial review. All legislative acts are "presumed to be constitutional." In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003); see also Bosang v. Iron Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 441 (1898); Johnson v. Commonwealth, 40 Va.App. 605, 612, 580 S.E.2d 486, 490 (2003) (recognizing that every legislative act "is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable"). This presumption is "one of the strongest known to the law." Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959). Under it, courts must "resolve any reasonable doubt" regarding the constitutionality of a law in favor of its validity. In re Phillips, 265 Va. at 85, 574 S.E.2d at 272; see also Wayside Rest., Inc. v. Virginia Beach, 215 Va. 231, 236, 208 S.E.2d 51, 55 (1974)

(holding public nudity ordinance constitutional). "To doubt is to affirm." Peery v. Bd. of Funeral Dirs., 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961) (quoting City of Roanoke v. Elliott, 123 Va. 393, 406, 96 S.E. 819, 824 (1918)).

A. The Public Nudity Ordinance Does Not Violate The First Amendment.

Statutes prohibiting public nudity are of "ancient origin" and "reflect moral disapproval of people appearing in the nude among strangers in public places." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568, 111 S.Ct. 2456, 2461, 115 L.Ed.2d 504 (1991) (plurality). For this reason, it has been the traditional view that whatever natural law construct exists to support the "right to appear au naturel at home," that right is "relinquished when one sets foot" outside. Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir.1970).⁷ Even so, in the "outer ambit" of constitutional theory, the erotic speech component of a particular form of public nakedness — nude dancing at strip clubs — receives "some measure" of First Amendment protection. Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 1391, 146 L.Ed.2d 265 (2000) (plurality); see also Barnes, 501 U.S. at 566,

111 S.Ct. at 2460. The right, however, is hardly a robust one. At best, it receives a "diminished form of protection under the First Amendment," Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 707 (7th Cir.2003), because it involves the "barest minimum of protected expression," Barnes, 501 U.S. at 565,

111 S.Ct. at 2460 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975)). Put another way, the right is only "marginally" within the "outer perimeters" of the First Amendment. Barnes, 501 U.S. at 566,

111 S.Ct. at 2460.

Appellants claim the Henrico public nudity ordinance violates the marginal free speech rights inherent in erotic dancing. They rest this claim on two assertions. First, appellants contend the ordinance constitutes the most serious of all First Amendment violations: a content-based restriction on free speech.⁸ Second, appellants argue that the public nudity ordinance — even if not content based — still works such a hardship on their free speech rights that it must be declared unconstitutional. We reject both arguments, finding they reflect a basic misunderstanding of First Amendment law.

A law regulating expressive activity should be deemed content neutral "so long as it is `justified without reference to the content of the regulated speech.'" Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (emphasis in original and citation omitted). Because such regulations are "unrelated to [the suppression of] expression," Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567, 121 S.Ct. 2404, 2428, 150 L.Ed.2d 532 (2001), they are subjected to a "less-rigorous analysis," Turner Broad. Sys. v. FCC, 520 U.S. 180, 213, 117 S.Ct. 1174, 1198, 137 L.Ed.2d 369 (1997). Sufficient government interests justifying content-neutral regulations include "preventing harmful secondary effects," Erie, 529 U.S. at 293, 120 S.Ct. at 1393, and "protecting order and morality," Barnes, 501 U.S. at 569, 111 S.Ct. at 2462, both classic expressions of state police powers.

The Henrico public nudity ban regulates conduct — not the content of anyone's speech. In this respect, the ordinance is no different from either of the two public nudity laws deemed content neutral in Barnes and Erie. As the United States Supreme Court said in Erie:

The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains

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