Cafe 207, Inc. v. St. Johns County, 92-390 CIV-J-10.

• Decision Date: 23 June 1994
• Docket Number: No. 92-390 CIV-J-10.,92-390 CIV-J-10.
• Citation: 856 F. Supp. 641
• Parties: CAFE 207, INC., Plaintiff, v. ST. JOHNS COUNTY, Defendant.
• Court: U.S. District Court — Middle District of Florida

856 F. Supp. 641

CAFE 207, INC., Plaintiff, v. ST. JOHNS COUNTY, Defendant.

No. 92-390 CIV-J-10.

United States District Court, M.D. Florida, Jacksonville Division.

June 23, 1994.

Gary S. Edinger, Hankin, Beverly & Edinger, P.A., Gainesville, FL, for plaintiff.

James G. Sisco, St. Johns County Attys. Office, St. Augustine, FL, for defendant.

MEMORANDUM OPINION

HODGES, District Judge.

This is an action for declaratory and injunctive relief in which the Plaintiff challenges the constitutionality of the St. Johns County Public Nudity Ordinance. There is no dispute concerning the court's jurisdiction over the parties or the subject matter. The case is before the court on the parties' cross motions for summary judgment. The ordinance is constitutional and the Defendant's motion for summary judgment will be Granted.

In February, 1992, the Plaintiff opened and began operating a restaurant in St. Johns County, Florida, known as the Cafe Erotica. The restaurant provides nude entertainment by live dancers in conjunction with the sale of food. No alcoholic beverages are served. The Plaintiff alleges that the nude dancing performed for its patrons is non-obscene, constitutionally protected communication; that the nude human body is a thing of beauty which, when combined with music and rhythmic motion in the form of dance, conveys an "important message of eroticism." The Plaintiff also claims that its promotion of nude dance and eroticism is, in part, a deliberate and intentional political protest against those who would choose to impose their narrow view of morality through legislation.

On April 21, 1992, St. Johns County passed its Ordinance 92-12 entitled the St. Johns County Public Nudity Ordinance. The legislation recites, among many other findings, that St. Johns County is essentially a rural-suburban community, the largest municipality of which is the City of St. Augustine which has a population of less than 13,000 people. It further recites that the County desires to preserve its unique character as a family oriented, historic attraction for tourists, and that nudity in public places is still subject to general societal disapproval by the people of the county. The core of Ordinance 92-12 is Section 6:

Section 6. Nudity Prohibited in Public Places. It shall be unlawful for any person to knowingly, intentionally, or recklessly appear or cause another person to appear, nude in a public place or in any other place which is readily visible to the public ...

The definition of a "public place" includes business or commercial establishments such as restaurants, and the parties agree that the ordinance clearly covers the Plaintiff's Cafe Erotica. Violation of the ordinance is a misdemeanor offense punishable by imprisonment in the county jail for not more than 60 days, a fine of not more than $500, or both.

One distinctive feature of the ordinance is its definition of the terms "breast," "buttocks," and "nudity." In net effect, a female is "nude" whenever more than two-thirds of the buttocks or more than three-fourths of the breasts are exposed; and detailed definitions of those body parts are provided to facilitate making the fractional measurements necessary in applying the ordinance to any given state of dress (or undress, as the case may be).

The Plaintiff instituted this action on April 22, 1992, the day after the ordinance was passed by St. Johns County. The complaint alleges that Ordinance 92-12 violates the Plaintiff's right to freedom of speech under the First and Fourteenth Amendments to the Constitution of the United States.

I

Following a hearing conducted at the outset of the litigation, I denied the Plaintiff's application for a preliminary injunction, finding, in light of the Supreme Court's landmark decision in Barnes v. Glen Theater, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), upholding a similar anti-nudity law, that the Plaintiff had failed to demonstrate a substantial likelihood of success on the merits. The Court of Appeals affirmed, Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136 (11th Cir.1993), making it clear, however, that the court was not deciding the merits of the constitutional issue, only that there was no abuse of discretion in my denial of preliminary injunctive relief.

In denying a preliminary injunction I analyzed the challenged ordinance under Barnes, as it teaches, by applying United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and the four-part test established in that case for determining the constitutionality of restrictions on symbolic speech or expressive conduct. In O'Brien the Supreme Court said that when speech and non-speech elements are contained in the same course of conduct (O'Brien had burned his draft card as an act of political protest in the presence of a sizable crowd) a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. Statutory regulation of such expressive conduct is constitutionally valid, therefore, if the enactment is: (1) within the constitutional power of the government; (2) furthers an important or substantial governmental interest; (3) such governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Five of the Justices in Barnes had no difficulty in finding that a public indecency statute is within the constitutional power of the State.¹ Indeed, Justice Scalia concurred in the judgment on the basis that a law regulating conduct, and not specifically directed at expression, is not subject to First Amendment scrutiny at all. The only difference between the plurality and Justice Souter related to identification of the substantial governmental interest served by the antinudity proscription.² The plurality found such interest to be the protection of order and morality, tracing the history and purpose of such laws to the ancient common law. Justice Souter, on the other hand, believed the governmental interest served by the statute to be "the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments." 501 U.S. at 580-583, 111 S.Ct. at 2468-2469.³ See also, International Eateries of America, Inc. v. Broward County, 941 F.2d 1157 (11th Cir.1991).

Thus far in the analysis, therefore, applying Barnes to the facts of this case, it is clear that the first three elements of the O'Brien four-part test are satisfied by Ordinance 92-12. The law, as an exercise of the County's police power, is clearly within its constitutional authority. It also serves a substantial and important governmental interest in protecting order and morality and in combating the secondary effects of nudity in adult entertainment establishments of the sort typified by the Plaintiff's Cafe Erotica. And, neither of those governmental interests is related to the suppression of free expression as such.

The Plaintiff vigorously argues that a trial is necessary to explore and decide fact issues relating to the individual motivations of the County Commissioners in enacting the ordinance, and whether there are, in actuality, any adverse secondary effects of adult entertainment establishments. It is claimed, with respect to the individual purposes of the commissioners, that the ordinance was really aimed at the Plaintiff, and the Plaintiff alone, so that it should be analyzed not as a law of general application primarily restricting conduct, not speech, but as a specific prior restraint on the Plaintiff's free speech activity requiring, at the least, a compelling public interest. Such an inquiry, however, is clearly (and wisely)⁴ foreclosed by the Supreme Court's decision in O'Brien.

It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive....

* * * * * *

What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. 391 U.S. at 383-384, 88 S.Ct. at 1683 ...

See also, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986), and the opinion of Justice Souter in Barnes quoted in footnote 3, supra.

Evidence about secondary effects or, rather, the lack of them, is also clearly foreclosed. It is now established as a matter of law by Supreme Court jurisprudence culminating in Barnes, that secondary effects of proscribed conduct may be taken into consideration by a court in evaluating the governmental interests justifying impingement upon free speech rights even when, as in Barnes, there is no legislative history demonstrating that the lawmakers actually considered secondary effects or any other specific factor (such as protecting order and morality) in enacting the challenged law. See also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (law-makers may rely as St. Johns County did here, upon studies conducted by other similar bodies in determining the secondary effects of adult theaters).

The lone remaining O'Brien test, then, is whether the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of the governmental interests served by the ordinance. On this point in Barnes, the plurality opinion said (501 U.S. at 570, 111 S.Ct. at 2463):

It is without cavil that the public indecency statute is `narrowly tailored;' Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose.

Justice Souter said essentially the same thing (Id., 501 U.S. at...