Boyd v. County of Henrico, Record No. 0377-02-2
| Decision Date | 10 June 2003 |
| Docket Number | Record No. 0381-02-2.,Record No. 0377-02-2,Record No. 0380-02-2 |
| Citation | 41 Va. App. 1,581 S.E.2d 863 |
| Court | Virginia Court of Appeals |
| Parties | Sharon C. BOYD v. COUNTY OF HENRICO. Dianna Lee White v. County of Henrico. Donna Jean White v. County of Henrico. |
C. David Whaley (Anthony G. Spencer; Morchower, Luxton & Whaley, on briefs), Richmond, for appellants.
Michael V. Gerrard, Deputy Commonwealth's Attorney, for appellee.
Present: FITZPATRICK, C.J., BENTON and KELSEY, JJ.
Appellant Sharon Boyd (Boyd) was convicted in a bench trial of two counts of public nudity, and appellants Donna White and Dianna White were convicted of aiding and abetting public nudity, in violation of Henrico County Code § 13-107. Appellants contend that Henrico County Code § 13-107, the public nudity ordinance (hereinafter "ordinance"): (1) is unconstitutional both facially and as applied to them; (2) violates the enabling statute; and (3) that the evidence was insufficient to support the convictions. For the reasons that follow, we reverse the judgment of the trial court.
The facts are undisputed. On July 6, 2001 plainclothes officers from the Henrico County Police Department went to Gold City Showgirls (Gold City), a "restaurant and bar," which had just opened for business. The officers paid a cover charge, showed identification and entered the bar area, where they stayed for approximately ninety minutes. During that time, the officers saw ten women strip to "pasties" and G-strings. The officers left the bar, retrieved their summons books and badges and returned to issue summonses to the first ten dancers, including Boyd, and the club manager, Donna White, for violating the ordinance.1 While the officers issued the summonses, other women continued dancing. Although these other dancers were not among the ten dancers cited for violating the ordinance, they were warned to comply with the ordinance and were told they would be cited if they failed to do so. On July 8, 2001 the police observed the same type of dancing and dress and again issued summonses for violations of the ordinance to Boyd and Dianna White, who was the manager on duty.
Appellants were tried and convicted in the Henrico County General District Court. On appeal to the Henrico County Circuit Court appellants argued that the ordinance was unconstitutional, both facially and as applied in this case. As part of the stipulated evidence, the Commonwealth and the appellants agreed that the transcript of evidence presented in a parallel case in the United States District Court in Richmond would be admitted as evidence in the instant cases.2 The Commonwealth's Attorney conceded before the U.S. District Court that he would not prosecute people wearing "contemporary swimwear" or "short-shorts," despite the fact that those items would be in "technical" violation of the statute. He also stated that he pursued the instant prosecutions based "primarily" on his opinion of the content of the performances at Gold City.
The trial court rejected appellants' constitutional challenges and heard the cases on the merits. Appellants admitted the dancers wore "pasties" and G-strings on July 6 and July 8, 2001. They argued, however, that they were not liable under the ordinance because Gold City fell within the ordinance's "theater" exception.3 The trial court found that Gold City "[was] not a theater" and that the performance was not "a theatrical performance either." Boyd was convicted of two counts of public nudity and sentenced to a fine of $125, plus costs. Appellants Donna White and Dianna White were each convicted of aiding and abetting public nudity and sentenced to 10 days in jail, with 10 days suspended, and fined $500, with $250 suspended, and costs of $61. Appellants now challenge those convictions.
Appellants contend that the ordinance is unconstitutional both on its face and as applied in these cases because it violates their First Amendment rights to free speech and association. Since we decide this case on the basis of the content-based selective enforcement, we do not address the facial challenge to the ordinance or appellants' other assignments of error.4
"Two conflicting rights are involved in [these] appeal[s]: (1) the right to free, individual self-expression, and (2) a government's right to enact legislation for the safety and welfare of its citizens." Adams Outdoor Adv. v. City of Newport News, 236 Va. 370, 381, 373 S.E.2d 917, 922 (1988).
The First Amendment of the Constitution provides: "Congress shall make no law abridging the freedom of speech." This freedom is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action; and municipal ordinances adopted under state authority constitute state action.
Staub v. City of Baxley, 355 U.S. 313, 321, 78 S.Ct. 277, 281, 2 L.Ed.2d 302 (1958). "[T]he First Amendment needs breathing space[;]. . . statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). Woolfolk v. Commonwealth, 18 Va.App. 840, 848, 447 S.E.2d 530, 534 (1994).
As applied to them, appellants contend the ordinance violates the First Amendment because it is unconstitutionally vague, and it impermissibly regulates content.5 We agree.
Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67 (1999). While the County can regulate the conduct involved here, it "must clearly define the proscribed conduct and must . . . enforce[ ] [the ordinance] equally, and not arbitrarily or capriciously, when it is applicable." Colonial First Properties, LLC v. Henrico County Virginia, 166 F.Supp.2d 1070, 1090 (E.D.Va. 2001).
"It is a basic principle of due process that an enactment is [unconstitutional] if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Id.
The record proves that the County failed to give Gold City "a reasonable opportunity to know what is prohibited" under the ordinance. The Commonwealth's Attorney conceded that he would not prosecute people wearing "contemporary swimwear" or "short-shorts," although these items fall within the limitations of the ordinance. Moreover, the Commonwealth's Attorney agreed that breast feeding in public would be a violation of the ordinance.6 Therefore, prior to this prosecution, there was no way for appellants to determine what clothing would put them in violation of the ordinance. Indeed, although the County was aware of Gold City's proposed format, the County never gave appellants any advance warning that their conduct would constitute a violation of the ordinance.7
The evidence adduced at the federal court hearing showed the events leading up to the opening of Gold City and the issuing of summonses on July 6 and July 8 to be as follows:
(1) a week before Gold City opened for business, Gold City informed some of the County's highest-ranking officials of the mode of dancing ("pasties and Gstring" [sic]) to be performed; (2) at the same time Gold City explained to those officials the view that Gold City was covered by an exception to the Ordinance; (3) the Acting Chief of Police represented that he was uncertain about the matter, but would look into it; (4) he [did] so; (5) the same afternoon, the County Attorney and the Commonwealth's Attorney and the Acting Chief of Police had concluded that Gold City: (a) was wrong in its interpretation of the Ordinance; (b) the mode of dancing Gold City would use was in violation of the Ordinance; and (6) the County never informed Gold City of these views.
Colonial First Properties, 166 F.Supp.2d at 1082. "Remarkably, and for reasons neither expressed nor readily apparent, Gold City was not notified that the County's executives and law enforcement officials had determined that Gold City's proposed operational format violated the Ordinance." Id. at 1074.
Furthermore, the record indicates that neither the Commonwealth's Attorney nor the police were able to clearly delineate what would constitute a violation of the ordinance or at least what they would prosecute as a violation. During cross-examination, one officer stated that he would have to see a particular item of clothing before he could state whether it would be in violation of the ordinance and that the determination would be made on "a case-by-case basis." Another officer testified that liability under the ordinance would depend on "what type of Gstring [a person] was wearing." Thus, the application of the ordinance did not clearly define the proscribed conduct and vested total discretion in the hands of those charged with enforcing it. Appellants did not have "a reasonable opportunity to know what [conduct was] prohibited" prior to the police issuing summonses on July 6, 2001. Grayned, 408 U.S. at 108, 92 S.Ct. at 2298-99.
The facts adduced at trial, including the...
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Boyd v. County of Henrico
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Boyd v. County of Henrico, Record No. 0377-02-2
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