City of Wichita v. Trotter

• Citation: 475 P.3d 365
• Decision Date: 25 September 2020
• Docket Number: No. 121,125,121,125
• Parties: CITY OF WICHITA, Appellee, v. Arlando TROTTER, Appellant.
• Court: Court of Appeals of Kansas

475 P.3d 365

CITY OF WICHITA, Appellee,

v.Arlando TROTTER, Appellant.

No. 121,125

Court of Appeals of Kansas.

Opinion filed September 25, 2020.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Jan Jarman, assistant city attorney, and Jennifer Magana, city attorney, for appellee.

Before Warner, P.J., Malone and Bruns, JJ.

Warner, J.:

The First Amendment to the United States Constitution prohibits the government from abridging our freedom of expression. But that freedom is not absolute. In particular, courts have long recognized that as long as the government does not tell us what we can or cannot say, it may nevertheless regulate when , where , and how our expression may occur. That is, if the government satisfies certain safeguards inherent in the Constitution, it may impose content-neutral restrictions limiting the time, place, and manner in which our speech can take place.

This case provides a concrete illustration of these principles. The City of Wichita has adopted an ordinance requiring anyone who wishes to operate an "entertainment establishment" to first obtain a license from the City. These licensing requirements are triggered by someone's decision to provide entertainment to the public, though they do not govern the content of the entertainment a person may provide. Anyone with a license must comply with restrictions based on noise level, hours of operation, building capacity, safety, and security.

A Wichita jury found Arlando Trotter had violated these provisions by operating an unlicensed club. On appeal, he challenges the constitutionality of Wichita's licensing framework, claiming it impermissibly restricts his expressive conduct and requires governmental approval before he may engage in that expression. We find the ordinance to be a permissible restriction on the time, place, and manner in which people may offer entertainment to the public. After carefully reviewing the parties' constitutional arguments and Trotter's additional claims, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Wichita Municipal Code requires anyone who wishes to operate an "entertainment establishment"—that is, a person or entity that provides entertainment (or a venue for entertainment)—to first obtain a license from the City. Wichita Municipal Ordinance (W.M.O.) 3.30.020; W.M.O. 3.30.030. The Code defines "entertainment" as including "any single event, a series of events, or an ongoing activity or business, ... to which the public is invited or allowed to watch, listen, or participate, or is conducted for the purposes of holding the attention of, gaining the attention of, or diverting or amusing patrons." W.M.O. 3.30.020. It also lists a number of activities covered by this provision, such as dancing to live or recorded music, playing music provided by a disc jockey (DJ), and presenting live music or other live performances. See W.M.O. 3.30.020.

Though an establishment must obtain a license to provide this entertainment, the Code does not "regulate or restrict the type or content" of the entertainment provided. W.M.O. 3.30.010. In other words, it does not require certain music to be played or ban other artistic expression. Instead, the Code regulates establishments generally, requiring them to meet certain capacity specifications and to comply with laws regarding security, controlled substances, alcohol, activities that constitute a public nuisance, and noise levels. See W.M.O. 3.30.120; W.M.O. 3.30.150; W.M.O. 3.30.160. In certain parts of the City, the Code requires that establishments must close by 2 a.m. W.M.O. 3.30.070(b).

The Code indicates that the City adopted this licensing framework to combat a host of public safety and nuisance issues common to nightclubs and entertainment establishments—among other things, "public intoxication, public urination, noise, disorderly conduct, assaults, and other similar problems connected primarily with the routine congregation of persons around ... nightclubs, especially those ... managed without adequate security and attention to preventing these problems." W.M.O. 3.30.010. The Code observes that, before the framework was adopted, entertainment establishments where alcohol was served had sometimes "creat[ed] an environment where various types of disturbances, excessive noise[,] and disorderly conduct by inebriated patrons may occur." W.M.O. 3.30.010. In Wichita's Old Town district in particular, "a significant amount of police resources" were being devoted to "safety issues" at these venues. W.M.O. 3.30.010. The licensing system sought to "minimize the[se] negative effects and to preserve the public safety, health[,] and welfare." W.M.O. 3.30.010.

Any person who violates Wichita's licensing framework—including, most fundamentally, by operating an entertainment establishment without a license—is guilty of a misdemeanor and subject to a fine. W.M.O. 3.30.190(a). This brings us to the particular facts of Trotter's case.

In 2017, Wichita police suspected a building was being used as an after-hours club—that is, an unlicensed entertainment establishment. Police observed a handful of people, presumably employees, arrive at the club around 11:00 p.m. Patrons would arrive between 1:00 a.m. and 2:00 a.m. People lined up behind a velvet rope at the front door where a security guard would scan people with a security wand before letting them enter. On one night, police estimated 200 people were either inside or waiting to enter the club.

After several attempts, police contacted Trotter, who identified himself as the club's owner. Trotter told the police he ran a private membership organization, which operated on donations and the $800 yearly fee paid by each of its 200 members. He explained the club did not have a drinking or entertainment establishment license, and the club did not serve alcohol. Trotter appeared reluctant to let police inspect the club.

Police continued to investigate. They learned the establishment had gone by several names—including Club Daiquiri and Club Mystique—over the years. Club Mystique had a valid entertainment-establishment license, but Trotter was not associated with that club. Researching online, officers found a Facebook post announcing that a new after-hours club—called The Association—had opened at that same address. And during subsequent observations of the club, police heard music being played from inside.

Officers obtained a search warrant, which they executed one evening before patrons began to arrive. They could hear music playing from inside as they approached the building. The officers entered the club, announced they had a search warrant, and asked that the music be turned down. They found nine people in the establishment, all presumed to be employees, and a person in a booth who identified himself as the DJ.

The officers described the club as having a dance floor, a bar, a kitchen, and a cordoned-off section. The DJ booth contained music equipment, and other parts of the club contained several 3-foot-tall speakers, flashing lights, and a projector screen. The front vestibule contained a table with two pieces of paper. One, written on lined notebook paper, stated entrants had to pay a $10 membership fee; the other listed the club's name and the date, and contained lines where entrants could write their name, phone number, and e-mail address.

Police searched the premises, finding music equipment and several bottles of alcohol. They also collected $260 in cash, though they did not find a cash register or credit card machines. At some point, Trotter arrived and spoke with the officers. The officers explained what they were doing and showed him a copy of the search warrant.

The City charged Trotter with operating the club without a liquor license and without an entertainment-establishment license. A Wichita municipal court found him guilty on the entertainment-establishment charge but acquitted him of operating without a liquor license. Trotter then appealed his conviction to district court.

Before trial, Trotter filed a motion to dismiss, asserting the entertainment-establishment ordinance was unconstitutionally vague and overbroad. He also claimed the ordinance was invalid because it was a prior restraint on his right to freedom of speech under the First Amendment to the United States Constitution.

The district court denied the motion. It held the ordinance gave sufficient warning of the prohibited activities and was therefore neither vague nor ambiguous. And it found the ordinance was not overbroad because it does not regulate the type of music played, and the City has a valid interest in safeguarding the public. Finally, the court ruled the ordinance does not violate the First Amendment. The court emphasized that the licensing framework seeks to regulate—not ban—music, and the ordinance provides detailed licensing and appeal criteria.

The case proceeded to trial, where a jury convicted Trotter of operating an entertainment establishment without a license. The court imposed a $1,500 fine and ordered Trotter to pay court costs. Trotter appeals.

DISCUSSION

Trotter contests his conviction in two ways. First , he renews his constitutional challenges to Wichita's entertainment-establishment licensure, claiming the provisions infringe his right to freedom of expression under the First Amendment; he also claims the provisions are vague, overbroad, and subject licensees to unreasonable restrictions. Second , he asserts that various aspects of his jury trial require reversal. We address each category of Trotter's claims in turn.

1. Trotter has not shown Wichita's licensing framework for entertainment establishments violates the United States Constitution.

Trotter's primary argument on appeal is that Wichita's entertainment-establishment licensing framework is an impermissible restraint on his freedom of expression under the First Amendment. But this is not his only constitutional challenge. He also argues the framework is impermissibly vague in its...