Com. v. Jameson, No. 2004-SC-000983-DG.

• Citation: 215 S.W.3d 9
• Decision Date: 22 November 2006
• Docket Number: No. 2004-SC-000983-DG.
• Parties: COMMONWEALTH OF KENTUCKY, Appellant, v. Edward Green JAMESON, Appellee.
• Court: United States State Supreme Court (Kentucky)

215 S.W.3d 9

COMMONWEALTH OF KENTUCKY, Appellant, v. Edward Green JAMESON, Appellee.

No. 2004-SC-000983-DG.

Supreme Court of Kentucky.

November 22, 2006.

Rehearing Denied March 22, 2007.

Appeal from the McCracken Circuit Court affirmed the district court, which denied the motion. Owner appealed.

Christopher Shea Nickell, Assistant McCracken County Attorney, David L. Kelly, Jason M. Lacy, Denton & Keuler, LLP, Paducah, Gregory D. Stumbo, Attorney General of Kentucky, Frankfort, Scott D. Bergthold, Chattanooga, TN, Counsel for Appellant.

Mark P. Bryant, Emily Ward Roark, Bryant & Kautz, Paducah, Bradley J. Shafer, Shafer & Associates, Lansing, MI, Counsel for Appellee.

Christopher S. Burnside, Griffin Terry Sumner, Frost, Brown & Todd, LLC, Louisville, Counsel for Reclaim Our Culture Kentuckiana, LLC (Amicus Curiae).

Brent L. Caldwell, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Lexington, Winston E. King, N. Scott Lilly, William P. O'Brien, Louisville/Jefferson County Metro Government, Assistant County Attorney, Louisville, Leslye M. Bowman, Director of Litigation, Lexington-Fayette Urban County Government, Department of Law, Lexington, Counsel for International Municipal Lawyers Association, Kentucky Association of Counties, Kentucky League of Cities, the Louisville/Jefferson County Metro Government, & the Lexington-Fayette Urban County Government (Amicus Curiae).

Opinion of the Court by Justice SCOTT.

On April 24, 2000, the McCracken County Fiscal Court adopted and published Ordinance No.2000-4, "An Ordinance Providing Regulation of Sexually Oriented Businesses and Their Employees." The ordinance provides, in pertinent part, that employees (i.e. nude dancers) of sexually oriented businesses wear the de minimis covering of "pasties" and a "G-string,"¹ and that no sexually oriented businesses remain open at any time between 1 a.m. and 6 a.m.² The ordinance also prohibits entertainers and employees of such a business from having any physical contact with a patron during any performance.³ Any person who violates the provisions of the ordinance would be guilty of a misdemeanor and subject to a fine of not less than one hundred dollars nor more than five hundred dollars, or be imprisoned in the county jail for not more than twelve months or both.⁴

The Preamble to the ordinance states that its purpose is "to promote health, safety, and general welfare of the citizens of [McCracken] County, and to establish reasonable and uniform regulations relating to sexually oriented businesses." By its terms, the ordinance seeks to prevent any negative secondary effects generally associated with sexually oriented businesses viz., increased crime, lowered property values, and a deleterious effect on surrounding businesses. The ordinance adopts the findings of such adverse secondary effects presented in reports made available to the Fiscal Court, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), as well as on studies from other communities.

Shortly after the passage of the ordinance, Appellee Jameson was cited for operating his adult cabaret⁵ (Regina's II) in violation of several of the provisions of the ordinance. Specifically, Jameson was cited for violating the hours of operation requirement, allowing total nudity by dancers, and allowing physical contact between nude dancers and patrons.

Jameson filed a motion in McCracken District Court to declare the ordinance unconstitutional. On October 18, 2001, an evidentiary hearing was held during which several witnesses testified on his behalf. The first witness, Brent Stringer, a dispatcher with the Paducah/McCracken E-911 Communication Services, testified that E-911 had received numerous calls from Regina's II, amounting to approximately two and one-half pages from that location alone, during the 2001 calendar year up to the date of the hearing. Stringer acknowledged, however, that he had received more calls from two nearby non-sexually oriented businesses, i.e. nightclubs, during that same period.⁶ Stringer also testified that not all criminal investigations are reported on the E-911 call sheets, such as undercover investigations. However, as the Commonwealth points out, Stringer did not testify concerning the number of patrons that visit any of the establishments in a given time period, nor did he testify concerning the total revenues of any of the businesses. Significantly, Stringer did not testify as to whom, if anyone, would typically call 911 to report illicit sexual behavior occurring on the premises of this adult business. It does seem unlikely that one participating in illicit sexual behavior at such a business would call 911 and complain about it. Likewise, Jameson did not attempt to establish that Stringer was an expert in criminology.

Other witnesses, including Melissa Meyer, a day shift manager at The Playhouse, and Joanne Warner, owner of The Playhouse, also testified.⁷ Specifically, the women testified about the "rules" in place at The Playhouse, which, as they testified, were in place to keep the patrons and employees safe. Among these were rules against drugs, acts "of any sexual nature," prostitution, and the requirement that "everything is sanitized." Warner also emphasized that her establishment had a rule prohibiting patron-dancer touching. Although Warner testified that such rules were in place at The Playhouse, she acknowledged she had recently called the police to report a man engaging in indecent exposure on the premises.

Warner also testified that although she had heard of incidents of sexual acts between patrons and dancers at other clubs, she insisted the rules at The Playhouse specifically prohibited such acts. At no point, though, did Warner or Meyer testify that requiring dancers to wear pasties and a G-string would not further the local government's interest in preventing illicit sexual conduct between patrons and dancers. Moreover, Jameson did not offer similar evidence of "self-regulation" at Regina's II.

Finally, a local realtor, George Wiley, testified via deposition as to several commercial real estate transactions that he had been involved with on the "south side of Paducah"⁸ over the previous several years. Wiley opined that the value of "south side" real estate had "increased tremendously" over the past ten to fifteen years based on "what it's selling for now" and "the fact that it wasn't selling" in the time period prior to the previous fifteen years. However, he also admitted that much of this increase in general was due to the recent presence of a Wal-Mart in the area.

On May 31, 2002, the McCracken District Court, having conducted several evidentiary hearings and having heard the arguments of counsel, denied Jameson's motion to declare the ordinance unconstitutional. Applying the United States Supreme Court's holding in Renton, supra, as well as Kentucky Court of Appeals' holding in Restaurant Ventures, LLC v. Lexington-Fayette Urban County Government, 60 S.W.3d 572 (Ky.App.2001), the court found that McCracken County was entitled to rely upon the studies it compiled and cited concerning the negative secondary effects of sexually oriented businesses. The court also concluded that Jameson supplied no authority demonstrating that the Kentucky Constitution affords greater protection for the nude dancing activities at Regina's II, and therefore rejected the state constitutional claims.⁹

On April 9, 2003, the McCracken Circuit Court affirmed the district court, noting that McCracken County did not need to "conduct new studies or produce evidence independent of that already generated by other municipalities to demonstrate the problem of secondary effects" stemming from activities at sexually oriented businesses. Additionally, the circuit court concluded that whatever evidence the municipality relies upon, that evidence is reasonably believed to be relevant to the problem that the municipality addresses. The court further found that the ordinance was not vague or overbroad in its application, that it was not arbitrary or discriminatory in light of federal or Kentucky constitutional standards, and that the administrative inspection provision imposed on Regina's II fell under the warrantless search exception to the Fourth Amendment of the United States Constitution in relation to "closely regulated" businesses.

Jameson then appealed to the Kentucky Court of Appeals, and on August 6, 2004, that court affirmed in part, vacated in part, and remanded the case for further proceedings. In its opinion, the Court of Appeals noted that "as between totally nude exotic dancing and exotic dancing that is accompanied by pasties and G-strings, we hold that any muting of the erotic message that occurs by prohibiting the totally nude exotic dancing is de minimis." Slip Op. at 18. It also acknowledged that "when enacting ordinances aimed at combating the negative, secondary effects associated with sexually-oriented businesses, cities are entitled to rely on studies from other municipalities and even prior court precedents which tend to establish the link between sexually-oriented businesses and those negative, secondary effects." Slip Op. at 21 (citing City of Erie v. Pap's A.M., 529 U.S. 277, 296-97, 120 S.Ct. 1382, 1395, 146 L.Ed.2d 265 (2000)).

However, the Court of Appeals found that Jameson's "unrebutted" evidence before the district court tended to "cast doubt" on the fiscal court's pre-enactment justification for Section VII(b)¹⁰ of the ordinance. In vacating the ruling of the circuit court, the Court of Appeals, citing City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) held that "as Alameda Books makes clear, if a party...