City of Jackson, Miss. v. Lakeland Lounge

• Decision Date: 09 July 1992
• Docket Number: Civ. A. No. J92-0283(W).
• Citation: 800 F. Supp. 455
• Parties: CITY OF JACKSON, MISSISSIPPI, Plaintiff, v. LAKELAND LOUNGE OF JACKSON, INC., Defendant.
• Court: U.S. District Court — Southern District of Mississippi

800 F. Supp. 455

CITY OF JACKSON, MISSISSIPPI, Plaintiff, v. LAKELAND LOUNGE OF JACKSON, INC., Defendant.

Civ. A. No. J92-0283(W).

United States District Court, S.D. Mississippi, Jackson Division.

July 9, 1992.

Craig Brasfield, Deputy City Atty., Jackson, Miss., for plaintiff.

Matthew Moore, Jackson, Miss., for defendant.

ORDER GRANTING PRELIMINARY INJUNCTION

WINGATE, District Judge.

Before the court is the motion of the defendant, Lakeland Lounge of Jackson, Inc., seeking a temporary restraining order or preliminary injunction to prohibit the City of Jackson, Mississippi, from continuing a pattern and course of conduct which interferes with the (defendant's) free exercise of a right protected by the First Amendment to the United States Constitution.¹ The key question here under the four factors in Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974), which determine the propriety of issuing injunctive relief, is whether the City of Jackson may refuse to issue the defendant the necessary permits for doing business, or otherwise interfere with the defendant's ability to carry on its business of "adult entertainment" in the form of topless dancing, while the City is simultaneously engaged in the process of adopting a zoning ordinance which would preclude the defendant from operating out of its present location.

THE PARTIES

The parties are the City of Jackson, Mississippi, (The City), a municipal corporation organized and existing under the laws of Mississippi, and Lakeland Lounge of Jackson, Inc., a Mississippi Corporation doing business at 1925 Lakeland Drive in Jackson, Mississippi.

JURISDICTION

The case was removed from state court to this court in accordance with 28 U.S.C. § 1441.² Jurisdiction is predicated upon 28 U.S.C. § 1331 (federal question)³ and 28 U.S.C. § 1343(a) (cases asserting violation of civil rights).⁴

STATEMENT OF THE CASE

Plaintiff, City of Jackson, filed this cause of action in the Chancery Court for the First Judicial District of Hinds County, Mississippi, alleging: (a) that there is a pending amendment to its zoning ordinance which would restrict "adult entertainment" establishments that allow topless dancing to areas zoned I-1, light industrial zoning, within the City and over one thousand feet from any church, school, park, playground, or residential area; (b) that Lakeland Lounge is located on property zoned C-3 (general commercial) and is providing adult entertainment in the form of topless dancing; and (c) that inasmuch as the pending amendment to the City's zoning ordinance would not permit such activities on property zoned C-3, Lakeland Lounge is violating the pending amendment to the zoning ordinance. The City's state court complaint sought to prevent Lakeland Lounge from providing adult entertainment in the form of topless dancing at 1925 Lakeland Drive, Jackson, Mississippi, the present location of the establishment.

After this lawsuit was removed from state court to this court, the City of Jackson submitted a motion to remand the case back to state court pursuant to 28 U.S.C. § 1447(c).⁵ Alternatively, the city asked this court to abstain, relying on the traditional abstention doctrines applied when there are parallel actions in state and federal court.⁶ The motion to remand and the alternative motion to abstain were both denied in the court's bench opinion entered on the date of hearing, June 11, 1992. The matter is now before the court pursuant to the aforesaid motion of defendant Lakeland for injunctive relief.

PERTINENT FACTS

On January 28, 1992, the City of Jackson amended its zoning ordinance to regulate the operation of adult entertainment businesses by requiring such businesses to locate in I-1 light industrial zoning districts more than 1,000 feet from a church, school, park, playground or residential area. Pursuant to § 21-13-11,⁷ Miss.Code Ann., the amendment went into effect on February 27, 1992. The amendment granted an exception to those adult entertainment businesses existing prior to the adoption of the amendment to the zoning ordinance.⁸ The amendments were prompted by recommendations from the City Planning Department and the City Attorney's office who were persuaded by certain studies conducted throughout the United States that adult entertainment businesses impacted negative secondary effects on the areas where they are located.

On February 12, 1992, Lakeland Lounge applied for a building permit to expand its operational space. At that time Lakeland Lounge had not opened for business and the City's amendment to its zoning ordinance had not yet become effective. While applying for the building permit, the agent for Lakeland Lounge let it be known that the establishment would be offering "adult entertainment." Therefore, because of the pending ordinance, the City of Jackson refused to issue Lakeland Lounge a building permit for expansion of the premises.⁹

On February 20, 1992, Lakeland Lounge filed a complaint in the County Court of the First Judicial District of Hinds County, Mississippi, seeking injunctive relief which would require the City of Jackson to issue the building permit for expansion of the premises. The County Court denied Lakeland Lounge's request for injunctive relief, so, on February 27, 1992, the same day the City's ordinance became effective, Lakeland Lounge sued the City of Jackson in federal district court under cause number J92-0123(B). The federal court complaint sought a declaratory judgment that the ordinance in question was unconstitutional. On April 30, 1992, the Honorable William H. Barbour, Jr., United States District Judge for the Southern District of Mississippi, in cause number J92-0123(B), ruled that the ordinance in question was unconstitutional, stating that the City of Jackson had no factual basis upon which to base its zoning amendment. Judge Barbour found nothing to support the City's assertion of negative or detrimental secondary effects which the operation of adult entertainment establishments might have on the surrounding community. Judge Barbour also found that the amendment to the zoning ordinance failed to provide reasonable alternative sites for the communication of protected speech. The City of Jackson, its elected officials, officers, agents and employees were enjoined from enforcing any provisions of the amendments to the zoning ordinance adopted January 28, 1992.

After Judge Barbour issued his decision, counsel for the City handed a letter from Mayor Kane Ditto to counsel for Lakeland Lounge. This letter was intended by the City to serve as notice to Lakeland Lounge of the City's continuing efforts to amend its zoning ordinance by lessening the separation requirements.¹⁰ The letter states that the contemplated amendment would still restrict the location of adult entertainment businesses to areas zoned I-1, light industrial, and from areas zoned C-3 such as Lakeland Lounge currently occupies.

After Judge Barbour's ruling in cause number J92-0123(B) on April 30, 1992, and the entry of final judgment on May 1, 1992, Lakeland Lounge continued its efforts to obtain a building permit for expansion of its present location. An additional controversy arose under § A103.9.1¹¹ of the City's Standard Building Code whether Lakeland was obligated to obtain a certificate of occupancy before Lakeland Lounge could open for business. The City Building Official, Gary L. Hathorn, insisted that a change in use of the building had occurred which gave him the authority to require an application for a certificate of occupancy and drawings of the existing building. According to Hathorn's testimony, the Lakeland Lounge location had previously been approved for patron dancing; the change to topless dancing was, in Hathorn's estimation, a sufficient change in use to require Lakeland Lounge to apply for a certificate of occupancy. Hathorn sent Herbert Cannon, a building inspector employed by the City's Department of Planning and Development, Division of Code Services, to inspect the Lakeland Lounge premises and ascertain whether there were violations of the building code. According to Cannon's testimony, violations existed in the form of structural changes and renovation for which no permit had been issued.

On May 6, 1992, notwithstanding the dispute over the certificate of occupancy and the City's assertions that unauthorized structural changes had been made to the premises, Lakeland Lounge opened for business. In a letter from counsel for Lakeland Lounge to the City Building Official dated May 8, 1992, counsel for Lakeland Lounge informed the City that his client had opened for business. Lakeland's counsel stated that his client disagreed with the Building Official's conclusion that a certificate of occupancy must be obtained. According to Lakeland's counsel, there had been no change in use which would require the certificate of occupancy; therefore, section A103.9.1 of the Standard Building Code did not apply.

On May 13, 1992, the City of Jackson filed complaint numbered 49-207 in the Chancery Court for the First Judicial District of Hinds County, Mississippi. The complaint charged Lakeland Lounge with operating in violation of the building code by failing to obtain a certificate of occupancy prior to doing business. The City sought an injunction to prohibit Lakeland Lounge from doing business as a topless dancing lounge.

On May 18, 1992, Lakeland Lounge filed its notice of removal of the City's complaint to federal district court pursuant to 28 U.S.C. § 1441, contending that the complaint presented a federal question under the First Amendment. Upon removal to this court, Lakeland Lounge filed a counterclaim and its own motion for injunctive relief. The City responded with a motion to remand the matter to the Chancery Court for the First Judicial District of Hinds County, which this court denied in a bench opinion on June 10, 1992.

LAKELAND LOUNGE'S MOTION FOR A TEMPORARY RESTRAINING ORDER OR,...