City of Jackson v. Lakeland Lounge of Jackson, Inc.

• Decision Date: 12 December 1996
• Docket Number: No. 93-CA-00874-SCT,93-CA-00874-SCT
• Citation: 688 So.2d 742
• Parties: CITY OF JACKSON, Mississippi v. LAKELAND LOUNGE OF JACKSON, INC.
• Court: Mississippi Supreme Court

Page 742

688 So.2d 742

CITY OF JACKSON, Mississippi v. LAKELAND LOUNGE OF JACKSON, INC.

No. 93-CA-00874-SCT.

Supreme Court of Mississippi.

Dec. 12, 1996.

Sarah O'Reilly-Evans, Terry Wallace, Jackson, for Appellant.

Chris N. K. Ganner, Jackson, for Appellee.

Before SULLIVAN, P.J., SMITH and MILLS, JJ.

SULLIVAN, Presiding Justice, for the Court:

The City of Jackson (City) enacted amendments to their zoning ordinance. The amendments were enacted in an effort to regulate adult entertainment within the City. Lakeland Lounge, Inc. (Lakeland) incorporated for the purpose of opening a club offering adult entertainment in the form of topless dancing. Lakeland opened a club on Lakeland Drive called "Danny's" which offered topless dancing. Danny's location at 1925 Lakeland Drive, Jackson, MS, is zoned general commercial C-3. However, according to the City zoning ordinance, adult entertainment is allowed only in areas zoned light industrial, I-1.

This legal dispute originated in February of 1992. This case has been before the Federal District Court of the Southern District of Mississippi three times, and before the United States Fifth Circuit of Appeals once. The City brought suit in Hinds Chancery Court to enforce the Fifth Circuit's ruling that the zoning ordinance is constitutional. Chancellor Dillard ruled that the zoning ordinance is unconstitutional and now the case is before this Court.

I.

A.

In September 1991, "Tiffany's", a night club offering adult entertainment in the form of topless dancing, opened in Jackson, MS. Due to public uproar, the City tried to close down the club on a technical code violation but failed. A few weeks later a second club called the "Longhorn Gentleman's Club" opened providing the same form of adult entertainment. In September the mayor directed the zoning director to begin a process for adopting a public measure that would address the public concerns. Lakeland Lounge of Jackson, Inc. v. City of Jackson, Miss., 973 F.2d 1255, 1256-7 (5th Cir.1992); City of Jackson, Miss. v. Lakeland Lounge of Jackson, Inc., 800 F.Supp. 455, 458 (S.D.Miss.1992).

On January 28, 1992, the City amended its zoning ordinance to regulate and disperse adult entertainment establishments. The amended ordinance requires adult entertainment businesses to locate in I-1 light industrial zoning districts and may be permitted in the central business district with a use permit. Additionally, adult entertainment businesses may not locate within 250 feet of each other or more than 1,000 feet from a church or school, park, playground or residential area. Pre-existing adult businesses were given three years to comply. The amendments to the ordinance went into effect on February 27, 1992. City of Jackson, 973 F.2d at 1257, 800 F.Supp. at 459.

These regulations were prompted by the City Attorney's office and the City Planing Department. These City departments collected materials, studies and ordinances from other areas concerning adult entertainment. These studies and materials addressed the effects that adult entertainment has on local communities. The materials concluded that adult entertainment businesses had negative secondary effects on the areas where they are located. Id., at 1257; 800 F.Supp. at 458.

In January, 1992, Lakeland was incorporated for the purpose of operating a restaurant/lounge with adult entertainment in the form of topless dancing. Lakeland received a beer license from the city and state and executed a lease for property in an area zoned as C-3 "general commercial." Id., at 1257. On February 12, 1992, Lakeland applied for a building permit to expand operational space. At the time of the application, Lakeland was not in operation nor was the amended ordinance in effect. When the City caught wind that Lakeland was going to offer adult entertainment, the City refused to issue a building permit for expansion. City of Jackson, 800 F.Supp. at 458.

On February 20, 1992, Lakeland filed suit in Hinds County Chancery Court seeking injunctive relief which would require the City to issue the building expansion permit. Lakeland's request was denied. Therefore, on February 27, 1992, Lakeland sued the City in United States District Court under cause number J92-0123(B). Lakeland sought to have the ordinance declared unconstitutional and its enforcement enjoined. The district court denied Lakeland's motion for a temporary restraining order. On April 30, 1992, Judge Barbour declared the ordinance unconstitutional and permanently enjoined its enforcement. Judge Barbour found the City had nothing to support its assertion that adult entertainment establishments have negative or detrimental secondary effects on the surrounding community. The City appealed to the Fifth Circuit for a motion to stay Judge Barbour's opinion. Lakeland Lounge, 973 F.2d at 1257, 800 F.Supp. at 459.

Lakeland continued its efforts to obtain various building permits. Lakeland continually applied for an expansion permit. An additional controversy arose concerning another Building Code section mandating a certificate of occupancy. The City continually denied the applications and found various violations of the building code. On May 6, 1992, Lakeland opened for business. On May 8, 1992, Lakeland informed the City of its opening. Lakeland claimed that they were in compliance with all building code sections. On May 13, 1992, the City filed a complaint in Hinds County Chancery Court charging that Lakeland was operating in violation of the building code. Lakeland filed for removal to the federal court based on a federal question. Upon removal to federal court, cause no. J92-0283(W), Lakeland filed a counterclaim and motion for injunctive relief to prohibit the City from continuing a pattern and course of conduct which interferes with the free exercise of a right protected by the First Amendment of the United States Constitution. Judge Wingate found that the City's refusals to issue permits violated protected speech. However, since the case was predicated upon the constitutionality of the zoning ordinance, and the constitutionality of the ordinance was pending in the Fifth Circuit from cause no. J92-0123(B), Judge Wingate determined to stay the instant holding in the case until the Fifth Circuit ruled on the City's motion to stay. City of Jackson, 800 F.Supp. at 459-60, 467-68.

On October 5, 1992, the United States Court of Appeals for the Fifth Circuit reversed Judge Barbour's ruling and found that the zoning amendment was constitutional. Lakeland Lounge v. City of Jackson, Miss., 973 F.2d 1255 (5th Cir.1992). In short, the Fifth Circuit concluded that "the Jackson City Council properly considered the secondary effects of adult business and provided sufficient alternative avenues of expression for them." Id., at 1260. On November 4, 1992, the Fifth Circuit denied Lakeland's petition for rehearing. Lakeland Lounge v. City of Jackson, Miss., 979 F.2d 211 (5th Cir.1992). On April 19, 1993, the United States Supreme Court denied writ of certiorari. Lakeland Lounge v. City of Jackson, Miss., 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 469 (1993).

B.

On December 9, 1992, the City hand delivered a letter to Lakeland's counsel, the late Mathew Moore. The letter advised that Lakeland's adult entertainment activities conducted at the premises known as "Danny's" violate the Zoning Ordinance and demanded the cessation of such activity immediately. Lakeland continued to provide topless dancing entertainment.

On December 11, 1992, the City filed a complaint against Lakeland in Hinds Chancery Court cause no. 150,720. The complaint sought injunctive relief preventing Lakeland from doing business in the form of topless dancing which is in violation of the City's Zoning Ordinance. Chancellor Robinson granted an ex parte temporary restraining order restraining Lakeland from providing adult entertainment on December 11, 1992 at 2:50 p.m. Furthermore, Chancellor Robinson set a hearing for the preliminary injunction to be held on December 22, 1992. At 8:20 p.m. on December 11, 1992, Chancellor Robinson dissolved the temporary restraining order claiming that Lakeland did not have sufficient notice pursuant to MRCP 65.

On December 21, 1992, Lakeland filed for a removal of the action to the United States District Court for the Southern District of Mississippi under 28 U.S.C. § 144, alleging federal question jurisdiction pursuant to 28 U.S.C. § 1331. The City made a motion to remand to Hinds County Chancery Court. On March 8, 1993, United States Magistrate Nicols granted the City's motion for remand. The federal court clerk sent a certified copy of the order to the clerk of the state court. City of Jackson, Miss. v. Lakeland Lounge, 147 F.R.D. 122 (S.D.Miss.1993).

On March 11, 1993, Hinds County Chancery Court filed a notice of hearing before Chancellor Dillard. The hearing pertained to the City's motion for a temporary restraining order. On March 22, 1993, Lakeland filed a motion for continuance. The motion stated that U.S. Magistrate Judge Nicols' March 8, 1993, order of remand was being appealed to United States District Judge Barbour pursuant to the local rules of the Southern District of Mississippi, and the Federal Rules of Civil Procedure. Therefore, Lakeland's motion stated that any action by Hinds County Chancery Court would be premature.

On March 24, 1993, Chancellor Dillard heard Lakeland's motion for continuance on the City's motion for a temporary restraining order. At the hearing, Mr. Moore, counsel for Lakeland, stated that Judge Barbour would not grant a stay as to Judge Nicols' remand and an opinion and order would be issued on the ruling later. However, Lakeland still maintained that Hinds County Chancery Court's jurisdiction of the matter was premature since the federal court had not given a final ruling on the appeal of the magistrate's remand. After hearing matters from both sides, Chancellor Dillard denied Lakeland's motion for...