Dj vu of Nashville Inc. v. The Metro Government of Nashville & Davidson Cnty.

• Decision Date: 24 January 2001
• Docket Number: 00-5284,00-5288,Nos. 99-5071,00-5881,s. 99-5071
• Citation: 274 F.3d 377
• Parties: (6th Cir. 2001) Deja Vu of Nashville, Inc., a Tennessee corporation; Michael Rucker, individually; Michael Butler, individually; Meroney Entertainment, Inc., d/b/a Ken's Gold Club, a Tennessee corporation; The Pleasure Palace, Inc., a Tennessee corporation; Dawn Pierce, individually; Elizabeth Martz, individually; Jerry C. Pendergrass, individually; The 822 Corporation; The 421 Corporation, Plaintiffs-Appellants (99-5071),Plaintiffs-Appellees (00-5881),Plaintiffs-Appellees/Cross-Appellants (00-5284/5288), v. The Metropolitan Government of Nashville and Davidson County, Tennessee; Emmett Turner, Chief of Police of the Metropolitan Police Department, Defendants-Appellees (99-5071), Defendants-Appellants (00-5881), Defendants-Appellants/Cross-Appellees (00-5284/5288). Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 377

274 F.3d 377 (6th Cir. 2001)

Deja Vu of Nashville, Inc., a Tennessee corporation; Michael Rucker, individually; Michael Butler, individually; Meroney Entertainment, Inc., d/b/a Ken's Gold Club, a Tennessee corporation; The Pleasure Palace, Inc., a Tennessee corporation; Dawn Pierce, individually; Elizabeth Martz, individually; Jerry C. Pendergrass, individually; The 822 Corporation; The 421 Corporation, Plaintiffs-Appellants (99-5071),Plaintiffs-Appellees (00-5881),Plaintiffs-Appellees/Cross-Appellants (00-5284/5288), v. The Metropolitan Government of Nashville and Davidson County, Tennessee; Emmett Turner, Chief of Police of the Metropolitan Police Department, Defendants-Appellees (99-5071), Defendants-Appellants (00-5881), Defendants-Appellants/Cross-Appellees (00-5284/5288).

Nos. 99-5071, 00-5284, 00-5288, 00-5881

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 24, 2001

Decided and Filed: December 6, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville., Nos. 97-01066, 97-01176--John T. Nixon, Thomas A. Higgins, District Judges. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Bradley J. Shafer, Andrew K. Wilkins, SHAFER & ASSOCIATES, P.C., Lansing, Michigan, Michael F. Pleasants, Memphis, Tennessee, H. Louis Sirkin, Laura A. Abrams, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, John E. Herbison Nashville, Tennessee, for Plaintiffs.

Francis H. Young , Shayna R. Abrams, METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, for Defendants. Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan, for Plaintiffs. Karl F. Dean, METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY, Nashville, Tennessee, for Defendants-Appelless for No. 99-5071.

Bradley J. Shafer (argued and briefed), Andrew K. Wilkins (briefed), Shafer & Associates, P.C., Lansing, MI, Michael F. Pleasants (briefed), Laura A. Abrams (briefed), Jennifer M. Kinsley (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cinicinnati, OH, John E. Herbison (briefed), Nashville, TN, for Plaintiffs-Appelless/Cross-Appellants for Nos. 00-5284, 00-5288.

Francis H. Young (briefed), Shayna R. Abrams (briefed), Metropolitan Department of Law, Nashville, TN, Karl F. Dean (argued), Metropolitan Government of Nashville & Davidson County, Nashville, TN, for Defendants-Appellants/Cross-Appellees for Nos. 00-5284, 00-5288.

Bradley J. Shafer (argued and briefed), Andrew K. Wilkins (briefed), Shafer & Associates, P.C., Lansing, MI, Michael F. Pleasants, Memphis, TN, H. Louis Sirkin (briefed), Laura A. Abrams, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, John E. Herbison (briefed), Nashville, TN, for Plaintiffs-Appellees for No. 00-5881

James L. Charles, Francis H. Young (briefed), Shayna R. Abrams (briefed), Metropolitan Department of Law, Nashville, TN, Karl F. Dean (argued), Metropolitan Government of Nashville & Davidson County, Nashville, TN, for Defendants-Appellants for No. 00-5881.

Before: MARTIN, Chief Judge; WELLFORD and SUHRHEINRICH, Circuit Judges.

BOYCE F. MARTIN, JR., C.J.,

delivered the opinion of the court, in which SUHRHEINRICH, J., joined.

WELLFORD, J. (pp. 37-43) delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

On August 19, 1997, the Council for the Metropolitan Government of Nashville and Davidson County, Tennessee, passed an ordinance, now codified as Metropolitan Code of Laws Chapter 6.54, "Sexually Oriented Businesses," containing licensing requirements for adult entertainment businesses. Shortly thereafter, plaintiffs in this consolidated appeal filed suit in federal court to enjoin the Ordinance's enforcement on First and Fourteenth Amendment grounds. Since that time, injunctions have been issued, dissolved, and issued anew in response to the four amended versions of the Ordinance enacted by Metropolitan Nashville during the four-year pendency of this litigation.¹ The parties now appeal and cross-appeal various aspects of the district court's injunctive and procedural rulings.

I.

The Ordinance requires all "sexually oriented businesses" to obtain a license issued by the Sexually Oriented Businesses Licensing Board before being permitted to operate. See Metropolitan Code of Laws 6.54.030(A). Additionally, all entertainers working within a sexually oriented business must obtain a permit from the Board. See M.C.L. 6.54.060(A). The permit requirements are essentially identical to the license requirements. See M.C.L. 6.54.080(A). Licenses and permits must be renewed on a yearly basis, and can be suspended or revoked for, among other things, repeated failure to comply with any of the licensing or permitting requirements, failure to pay required fees, or knowingly denying access to law enforcement personnel during business hours. See M.C.L. 6.54.110; 6.54.150(A)(2), (3), and (6). The Ordinance includes a civil disability provision (M.C.L. 6.54.050(B)(2); 6.54.080(A)(2)), a disclosure provision (M.C.L. 6.54.040(A)(5); 6.54.070 (A)(4)), and a no-touch/buffer zone provision (M.C.L. 6.54.140(C)), applicable to all license and permit-seekers. Metropolitan Nashville charges applicants five hundred dollars to apply for a license, and one hundred dollars to apply for a permit. See M.C.L. 6.54.090.

The plaintiffs are a group of establishments and individuals providing adult entertainment in the form of live nude or semi-nude performance dance, as well as selling, renting or presenting sexually oriented books, magazines, and videos. The "Deja Vu plaintiffs" include four corporations, two owner/operators, and two dancers. The "Pendergrass plaintiffs" include two corporations and one owner/operator. All the plaintiffs fall within the Ordinance's definitions of either "sexually oriented business," "operator," or "entertainer," and thus each is subject to the Ordinance's requirements. See M.C.L. 6.54.010(G), (P), and (Y), respectively.

In October 1997, the Deja Vu plaintiffs sought a preliminary injunction based solely on the ground that the Ordinance failed to provide prompt judicial review of licensing decisions by the Board. The Deja Vu plaintiffs reserved their right to request a future preliminary injunction on other grounds. Shortly thereafter, the Pendergrass plaintiffs filed a similar complaint, requesting a preliminary injunction on the grounds that the Ordinance failed to provide prompt judicial review of licensing decisions and that its civil disability provisions violated the First Amendment. On December 11, the district court consolidated the two cases and granted a preliminary injunction because the Ordinance failed to provide for prompt judicial review; the district court did not address the constitutionality of the disability provisions. Metropolitan Nashville subsequently amended the Ordinance, and, on December 7, 1998, the district court dissolved the preliminary injunction. The plaintiffs timely appealed the dissolution.

The plaintiffs also moved for another preliminary injunction, raising all of their constitutional challenges to the Ordinance. On October 1, 1999, the district court granted the motion, finding the definitions of "sexually oriented" and "sexually oriented theater," the civil disabilities provision, the disclosure provision, and the fee amounts unconstitutional. The court further found that the tainted provisions could not be severed, and therefore enjoined the entire Ordinance. In December, the district court made the preliminary injunction permanent. Metropolitan Nashville timely appealed the district court's decision striking down the definitions and the civil disability, disclosure, and fee provisions; the refusal to sever the tainted provisions; and the imposition of the permanent injunction. The plaintiffs timely cross-appealed the district court's decision upholding the Ordinance's definition of "sexually oriented business/establishment" and the buffer zone/no-touch provision. The plaintiffs also appealed the district court's grant of a protective order to Metropolitan Nashville.

In early 2000, Metropolitan Nashville again amended the Ordinance to remove the portions that the district court found unconstitutional, and then filed a Rule 60(b) motion to dissolve the injunction with the district court. The district court denied the motion on the grounds that it no longer had jurisdiction over the case because Metropolitan Nashville had already appealed its judgment to this Court. Metropolitan Nashville timely appealed that decision as well.

II.

As an initial matter, we note that none of Metropolitan Nashville's issues on appeal have been rendered moot by the current version of the Ordinance, which was enacted in early 2000. "[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982). Here, Metropolitan Nashville explicitly enacted the 2000 version in order to enforce the Ordinance pending this appeal. It has repeatedly expressed its intention to reenact those portions of the Ordinance judged unconstitutional by the district court at the earliest opportunity. Accordingly, we must now address the constitutionality of the following portions of the Ordinance: the definitions of "sexually oriented," "sexually oriented business/establishment," and "sexually oriented theater;" the civil disability provision; the disclosure provision; the fees provision; the buffer zone/ no touch provision; and the mechanisms provided for judicial review. We review a district court's decision to grant or deny a permanent injunction, including both its factual and legal conclusions, de novo when constitutional facts are at issue. See Women's Medical...