Clampitt v. City of Ft. Wayne

• Decision Date: 21 March 1988
• Docket Number: Civ. No. F 87-115.
• Parties: Martha CLAMPITT d/b/a Tender Touch, Plaintiff, v. CITY OF FORT WAYNE, Defendant.
• Court: U.S. District Court — Northern District of Indiana

682 F. Supp. 401

Martha CLAMPITT d/b/a Tender Touch, Plaintiff, v. CITY OF FORT WAYNE, Defendant.

Civ. No. F 87-115.

United States District Court, N.D. Indiana, Fort Wayne Division.

March 21, 1988.

Donald C. Swanson, Jr., Swanson & Campbell, Fort Wayne, Ind., for plaintiff.

J. Timothy McCaulay, Helmke, Beams, Boyer & Wagner, Fort Wayne, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This case presents a facial challenge to the constitutionality of various provisions of Fort Wayne's amended nude modeling and massage parlor ordinance. On August 21, 1987, the court dismissed a number of claims in the plaintiff's complaint. Equal protection, procedural due process, and vagueness claims remain and are the subject of the defendant's present motion for summary judgment. The motion is fully briefed and ripe for ruling, and for the following reasons, will be granted.

I. Summary Judgment Standards

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ. P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment mirrors the directed verdict standard under Rule 50(a), which requires the court to grant a directed verdict where there can be but one reasonable conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). A scintilla of evidence in support of the nonmoving party's position is not sufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 2512; Valentine v. Joliet Tp. High School Dist. No. 204, 802 F.2d 981, 986 (7th Cir.1986).

Initially, Rule 56 requires the moving party to inform the court of the basis for the motion, and to identify those portions of the "pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, which demonstrate the absence of a genuine issue of material fact." Celotex, 106 S.Ct. at 2553. The non-moving party may oppose the motion with any of the evidentiary materials listed in Rule 56(c), but reliance on the pleadings alone is not sufficient to withstand summary judgment. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). In ruling on a summary judgment motion the court accepts as true the non-moving party's evidence, draws all legitimate inferences in favor of the non-moving party, and does not weigh the evidence or the credibility of witnesses. Anderson, 106 S.Ct. at 2511.

Substantive law determines which facts are material; that is, which facts might affect the outcome of the suit under the governing law. Id. at 2510. Irrelevant or unnecessary facts do not preclude summary judgment even when they are in dispute. Id. The issue of fact must be genuine. Fed.R.Civ.P. 56(c), (e). To establish a genuine issue of fact the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Id. A summary judgment determination is essentially an inquiry as to "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 106 S.Ct. at 2512.

II. Factual Background

Plaintiff Martha Clampitt operates Tender Touch, a massage establishment located in Fort Wayne, Indiana. Plaintiff is a professional masseuse. Plaintiff is challenging the constitutionality of various provisions of Fort Wayne's new massage parlor and nude modeling ordinance, Special Ordinance No. S-46-87. The challenged ordinance supersedes the old ordinance, which also applied to Clampitt's business.

The new ordinance is allegedly more onerous than the old. Both the old and new ordinances are licensing ordinances. To obtain a license under the new ordinance, an application must be filed with the City, accompanied by a $500 annual licensing fee. The application must include a variety of information, including information about employees. Licenses may be denied, revoked, or suspended for a variety of reasons listed in the ordinance. For those establishments which are licensed, the ordinance contains a number of operating requirements and provides for inspections. These are the basic facts; other facts will be explained in more detail as they come up in the analysis.

III. Analysis

A. Equal Protection

"The Equal Protection Clause ... commands that no state shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 3254, 87 L.Ed. 2d 313 (1985). Courts have devised standards to determine the validity of legislation or other official action that is challenged as denying equal protection. Id. Generally, legislation is presumed valid and will be sustained if the classification drawn by the legislation is "rationally related to a legitimate state interest." Id. See also Pennell v. City of San Jose, ___ U.S. ___, 108 S.Ct. 849, 859, 99 L.Ed.2d 1 (1988); Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Vaden v. Village of Maywood, Illinois, 809 F.2d 361, 365 (7th Cir.1987). And when social legislation is at issue, the Equal Protection Clause allows wide latitude. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 174, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1980).

The Constitution presumes that even improvident decisions will eventually be rectified by the democratic process. City of Cleburne, 105 S.Ct. at 3254. "There is a presumption that the objectives articulated by the legislature are the ones actually pursued." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n. 7, 101 S.Ct. 715, 723 n. 7, 66 L.Ed.2d 659 (1981); J.B.K., Inc. v. City of Kansas City, Mo., 641 F.Supp. 893, 903 (W.D.Mo.1986). That presumption controls unless an examination of the circumstances forces the conclusion that the articulated objectives could not have been a goal of the legislature. Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975). In fact, legislatures are presumed to have acted constitutionally even if the source materials normally resorted to for ascertaining their grounds for action are otherwise silent; statutory classifications will be set aside only if no grounds at all can be conceived to justify them. McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969). Thus, the proponent of legislation does not have to establish an express legislative purpose or produce any empirical evidence upon which the legislation is based. See Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979).

The ordinance in this case creates no suspect class and affects no fundamental rights. See, e.g., City of Cleburne, 105 S.Ct. at 3255; Pollard v. Cockrell, 578 F.2d 1002, 1012-13 (5th Cir.1978); J.B.K., Inc., 641 F.Supp. at 903. Since the ordinance is not subject to strict scrutiny, the plaintiff must show (or at least present a genuine issue of material fact) that no set of facts could have reasonably been conceived to establish a rational basis for any classifications drawn by the ordinance. Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 740 (7th Cir.1987) citing Fritz, 449 U.S. at 179, 101 S.Ct. at 461. The constitutionality of the ordinance will ultimately be upheld unless the plaintiff can rebut the presumption and show that the challenged provisions are not rationally related to a legitimate state interest.

The plaintiff's brief in opposition to the defendant's motion for summary judgment suggests (albeit in a rather roundabout way) that cases involving the constitutionality of an ordinance are rarely appropriate for disposition by way of summary judgment. It is true that summary judgment may not be granted, in this as in any other case, if genuine issues of material fact exist. But the presumption of constitutional validity which applies in this case is entitled to as much force and effect under summary judgment procedures as elsewhere. Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983); J.B.K., Inc., 641 F.Supp. at 904. "Accordingly, when a question involving the facial constitutional validity of such legislation is reached on a motion for summary judgment, if the party asserting the invalidity of the legislation fails to offer evidence of a substantial character (or at least an argument based upon compelling logic) which rebuts the presumption, or to excuse that failure in accordance with Rule 56(f), the motion should be granted." J.B.K., Inc., 641 F.Supp. at 904, citing Wermager, 716 F.2d at 1214-15.

The evidence in opposition to the defendant's motion for summary judgment in this case consists only of Martha Clampitt's affidavit. The court notes that neither the complaint nor the brief in opposition to the motion for summary judgment outlines the provisions of the ordinance which are claimed to violate the Equal Protection Clause. And...