Colonial First Properties v. Henrico Co. Virginia

• Decision Date: 19 September 2001
• Docket Number: No. Civ.A. 3:01CV462.,Civ.A. 3:01CV462.
• Citation: 166 F.Supp.2d 1070
• Parties: COLONIAL FIRST PROPERTIES, LLC, Jessica Grace Anderson and Sharon Marker, Plaintiffs, v. HENRICO COUNTY VIRGINIA, a Virginia Municipal Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

166 F.Supp.2d 1070

COLONIAL FIRST PROPERTIES, LLC, Jessica Grace Anderson and Sharon Marker, Plaintiffs, v. HENRICO COUNTY VIRGINIA, a Virginia Municipal Corporation, Defendant.

No. Civ.A. 3:01CV462.

United States District Court, E.D. Virginia, Richmond Division.

September 19, 2001.

O. Jackson Cook, Steven M. Youngelson, Cary S. Wiggins, Cook, Youngelson & Wiggins, Atlanta, GA, C. David Whaley, Morchower, Luxton & Whaley, Richmond, VA, for plaintiffs.

Joseph T. Tokarz, II, Joseph P. Rapisarda, Jr., Ellen R. Fulmer, Karen M. Adams, Henrico County Attorney's Office, Richmond, VA, for defendant.

MEMORANDUM OPINION

PAYNE, District Judge.

Plaintiff Colonial First Properties, LLC, doing business as Gold City ("Gold City") is an existing Virginia Limited Liability Company in good standing, which owns and operates a restaurant and bar featuring live entertainment. Gold City is owned by Donna White (a Virginia resident owning 45 percent of the company), Diana White (a Virginia resident owning 5 percent of the company), and Richard Ritter (a Colorado resident owning 50 percent of the company). Plaintiffs, Jessica Grace Anderson and Sharon Marker, both residents of Virginia, have offered nude or semi-nude dance performances at Gold City and desire to offer such services in the future without fear of prosecution under the Henrico County public nudity ordinance. Defendant Henrico County, Virginia ("Defendant") is a political subdivision of the Commonwealth of Virginia and is operated pursuant to its Charter and the Constitution and laws of the Commonwealth.

Plaintiffs instituted this action seeking: (1) a judgment declaring that the public nudity ordinance of Henrico County is invalid under the Constitutions of Virginia and the United States; (2) temporary, preliminary and permanent injunctive relief for the deprivation of rights resulting from the enforcement of the ordinance against them; and (3) damages. The motion for a temporary restraining order was denied, and the Plaintiffs have abandoned their claim for damages. The action was heard on its merits on September 6, 2001, following expedited and extensive discovery. Relying on the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Henrico County has moved this Court to abstain from deciding the merits of this action, and to stay these proceedings until the Virginia state court has the opportunity to consider, in pending criminal proceedings, the constitutional issues presented here by these Plaintiffs who are not named parties to the state criminal proceedings.

STATEMENT OF FACTS

A brief recitation of the factual background will help frame the issues presented by the Complaint and by the County's motion. The facts upon which Gold City contends that abstention is foreclosed will be discussed along with the legal theories to which they relate.

This action was instituted after a series of interactions between Gold City and Henrico County beginning with obtaining a business license for Gold City and culminating in the citation, and in some cases, arrest, twelve of Gold City's entertainers for the violation of Henrico County Code § 13-107 (the "Ordinance") for dancing while clad only in "pasties and G-strings", and of Donna and Diana White for employing the entertainers and encouraging them to dance in that state. None of the named Plaintiffs have been prosecuted for violating the Ordinance which states:

(a) As used in this section, the term "state of nudity" means a state of undress so as to expose the human male or female genitals, pubic area or buttocks or to cover any of them with less than a fully opaque covering, or the showing of the female breast or any portion thereof below the top of the nipple, or covering of the breast or any portion thereof below the top of the nipple with less than a fully opaque covering.

(b) Every person who knowingly, voluntarily and intentionally appears in public or in a public place or in a place open to the public or open to public view in a state of nudity, or employs, encourages or procures another person so to appear, shall be guilty of a misdemeanor punishable by confinement in jail for not more than six months or a fine of not more than $500.00, or both.

(c) Nothing contained in this section shall be construed to apply to the exhibition, presentation, showing or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts, school, institution of higher learning or other similar establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, art or drama.

Henrico County enacted this Ordinance in 1982 in response to sundry offensive conduct such as flashing (appearing in public while entirely nude) and public urination. It is undisputed that the Ordinance was not intended to regulate nude dancing establishments and it is agreed that the County has no other ordinance directed to that end. Nor is there located in the County any establishment other than Gold City that offers entertainment in the form of nude dancing.

Donna White and her fellow investors determined that this void could be filled and, with the help of Donna White's husband, Mark White (himself a consultant for a company that operates several such establishments in other states), began to look for a site. They located on Brook Road what they thought was an appropriate site, which was then occupied by a Chinese restaurant, a facility easily adapted to the entertainment mode they intended to offer at Gold City.

Gold City filed its business license application, signed by Donna White, with Henrico County on June 22, 2001, and the license was granted the same day. Shortly after Gold City obtained its license, but before it opened for business, a health inspector, Cindy White, a resident of the neighborhood, entered the premises to perform an inspection at the request of the investors, before Gold City made final closing arrangements on the property. She learned what kind of entertainment Gold City intended to offer and complained to a member of the County's Board of Supervisors that a business of that sort should not be allowed to operate in the area. Other citizens complained to another County Supervisor. As a result, County Manager Virgil Hazlett was asked to look into the matter. Hazlett assigned to his deputy, Harvey Hinson, the task of investigating the situation. On June 27, 2001, Hinson sent an urgent message to various ranking county officials requesting them to quickly gather and compile background information about Gold City, what permits had been issued to Gold City, what approvals had been asked for, whether the approvals had been granted, whether such granted approvals could be rescinded and other questions regarding all manner of requisites for doing business in Henrico County. See Supplemental Memorandum of Law in Opposition to Motion to Stay All Proceedings, document numbers 938-39. The information was to be provided to County Manager Hazlett before 4:00 PM that same day. Id.

On June 29, 2001, a number of ranking county officials met with Gold City, and were informed that Gold City intended to operate under a "pasties and G-strings" format. Gold City announced that it considered its operation to fall under section 13-107(c), an exception in the Ordinance. None of the officials at the meeting informed Gold City that a "pasties and G-string" format would not fall within the exception. However, Lieutenant Colonel Douglas Middleton, the Deputy Chief of the Henrico Police Department who was acting as the Chief of Police in the absence of the Chief Henry Stanley, told the Gold City representatives that he was unsure whether they would fall within the exception. Acting Chief Middleton advised that he would look into the question. And, he did.

After the meeting, Acting Chief Middleton discussed the matter with the County Attorney, Joseph P. Rapisarda, who, in turn, discussed it with the Commonwealth Attorney, Wade Kizer. Before the end of the day, county officials had reached the conclusion that Gold City would not fall within the exception. Remarkably, and for reasons neither expressed nor readily apparent, Gold City was not notified that the County's executives and law enforcement officials had determined that Gold City's proposed operational format violated the Ordinance. Moreover, on the day Gold City opened, the County's Director of Planning, John Marlles, extended best wishes on the new venture.

As publicity about the forthcoming nude dancing facility mounted, so too did the number of citizen complaints. Those, in turn, prompted an increase in the scrutiny of inspections, as well as a coordinated effort by multiple county departments to observe and investigate potential criminal activity surrounding Gold City.¹ At least some of the apprehension about a nude dancing establishment in Henrico County resulted from recent publicity about the infamous Gold Club in Atlanta, an adult entertainment establishment steeped in criminal activity, namely prostitution, drug trafficking and organized crime. Given the similarity in name of Gold City and Gold Club, some county officials feared that there might be a connection.

Gold City opened its doors for business on July 6, 2001, and that evening police officers entered the premises, issued summons for violations of the Ordinance, and required (or asked) two entertainers to strip down to their pasties and G-strings for photographing. Donna White, a shareholder and manager of the establishment, was issued a summons for aiding and abetting the entertainers in violating the Ordinance. Two days later, on July 8, 2001, the police again raided Gold City, arresting one dancer and issuing additional summons for violating the Ordinance. Diana White, another shareholder and manager of...