DLS, Inc. v. City of Chattanooga

• Decision Date: 12 July 1995
• Docket Number: No. 1:95-cv-090.,1:95-cv-090.
• Citation: 894 F. Supp. 1140
• Parties: DLS, INC., d/b/a Diamonds and Lace Showbar, a Tennessee Corporation; Ann Martin; Kim Tyndall; and Karen Chadwick, Plaintiffs, v. CITY OF CHATTANOOGA; City Council of Chattanooga, Tennessee; Mayor Gene Roberts; Chairman Don Eaves; Councilpersons Mai Bell Hurley, David Crockett, David Disteffano, Yuseff Hakeem, John Lively, Leamon Pearce, Marti Rutherford, Ron Swafford; and Chief of Police Ralph Cothran, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

894 F. Supp. 1140

DLS, INC., d/b/a Diamonds and Lace Showbar, a Tennessee Corporation; Ann Martin; Kim Tyndall; and Karen Chadwick, Plaintiffs, v. CITY OF CHATTANOOGA; City Council of Chattanooga, Tennessee; Mayor Gene Roberts; Chairman Don Eaves; Councilpersons Mai Bell Hurley, David Crockett, David Disteffano, Yuseff Hakeem, John Lively, Leamon Pearce, Marti Rutherford, Ron Swafford; and Chief of Police Ralph Cothran, Defendants.

No. 1:95-cv-090.

United States District Court, E.D. Tennessee.

July 12, 1995.

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Jerry H. Summers, Chattanooga, TN, for plaintiffs.

Phillip A. Noblett, W. Shelley Parker, Jr., Chattanooga, TN, for defendants.

MEMORANDUM

I.

EDGAR, District Judge.

Plaintiff DLS, Inc. ("DLS"), a Tennessee corporation, operates an "adult cabaret" in Chattanooga, Tennessee, which offers the public live semi-nude dancing by females. Plaintiff Ann Martin is the sole stockholder of DLS. Plaintiffs Karen Chadwick and Kim Tyndall are employees of DLS. The business operated by DLS is known as "Diamonds and Lace."

The plaintiffs bring this action under 42 U.S.C. § 1983 for damages as a consequence of deprivation of their constitutional rights. They seek a declaratory judgment that Chattanooga's adult-oriented establishment ordinance, Ordinance 8601, as amended (herein sometimes called the "Ordinance") is unconstitutional. They also seek injunctive and other relief. Evidence and argument have been presented to the Court.

In general, the Ordinance establishes procedures for licensing of certain adult-oriented establishments and a permitting procedure for employees and entertainers at those businesses. The Ordinance also regulates certain sexual conduct at these businesses and specifies certain physical structural requirements for them.

This is not the first time this Court has had occasion to review the Ordinance. In Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986), this Court, with some exceptions, upheld the constitutionality of the Ordinance against a challenge presented by an "adult bookstore," which along with "adult cabarets," "adult motion picture theaters," and "adult mini-motion picture theaters" are "adult-oriented establishments" under the terms of the Ordinance. See CHATTANOOGA CITY CODE § 11-422(a) (defining "adult-oriented establishment"). While this Court in Broadway Books did address the Ordinance in general, many of the Court's findings related to law enforcement problems and health conditions at adult bookstores, not adult cabarets. Since the Court's Broadway Books decision, the Ordinance has been amended several times, although its general structure remains intact.

II.

Although the plaintiffs in this case have asserted in part that their First Amendment rights have been "chilled" because they have not been permitted to engage in totally nude dancing, this case is not about nude dancing. Ordinance 8601 does not prohibit nude dancing. While nude dancing is proscribed by another Chattanooga ordinance, § 25-85 of the CHATTANOOGA CITY CODE, and by the state indecent exposure statute, TENN.CODE ANN. § 39-13-511, these pieces of legislation have not been challenged by the plaintiffs in this case.

This suit was triggered by a recently enacted amendment to Ordinance 8601 which has been referred to as the "six-foot rule." This amendment reads in its entirety as follows:

No entertainer, employee or customer shall be permitted to have any physical contact with any other on the premises during any performance and all performances shall only occur upon a stage at least eighteen inches (18") above the immediate floor level and removed at least six feet (6') from the nearest entertainer, employee and/or customer.

CHATTANOOGA CITY CODE § 11-435(d).

The dancers at DLS are supposed to conform their attire to the language that defines an "adult cabaret" under the Ordinance. That language is:

Adult cabaret is defined to mean an establishment which features as a principle sic use of its business, entertainers and/or waiters and/or bartenders who expose to public view of the patrons within said establishment, at any time, the bare female breasts below a point immediately on top of the areola, human genitals, pubic region, or buttocks, even if partially covered by opaque material or completely covered by translucent material; including swim suits, lingerie or latex covering. Adult cabarets shall include commercial establishments which feature entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainers.

Id. § 11-422(e). By using latex paste and makeup, dancers make their breasts appear bare. They strip down to a G-string or "T-bar." Their status could be described as "mostly nude."

Dancing at Chattanooga adult cabarets is at least "marginally" protected as "expressive conduct within the outer perimeters of the First Amendment." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (plurality opinion). In Barnes, four members of the five-member Supreme Court majority applied a lower level of First Amendment scrutiny to nude dancing than would be used to evaluate restrictions on other forms of expression, such as political debate. Id. at 584, 111 S.Ct. at 2469-70 (Souter, J., concurring).¹

It is noteworthy, however, that freedom of expression may not be the primary issue here. Throughout the trial, the plaintiffs expressed at least as much concern about the ability of DLS and its dancers to make money as it did with their ability to express themselves. As counsel for DLS remarked, the Ordinance "will have a very chilling effect upon ... the free enterprise system." If "free enterprise" is what is being regulated here, the City has a much freer hand. It has long been held that a municipality's exercise of the police power is not normally limited by contentions that the municipality is interfering with one's freedom to contract, or right to engage in "free enterprise." Schmidinger v. City of Chicago, 226 U.S. 578, 589-90, 33 S.Ct. 182, 185, 57 L.Ed. 364 (1913).

Nevertheless, because dancing is involved, precedent requires that the Ordinance be examined through the prism of the First Amendment. In Broadway Books, this Court found that while the Ordinance "may have some impact on constitutionally protected First Amendment activity ... it was not enacted for the purpose of limiting speech on the basis of its content." 642 F.Supp. at 490. The Court has heard nothing that would alter this conclusion. Thus, as was done in Broadway Books, this Court will subject the Ordinance to a time, place, and manner analysis as specified in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The Sixth Circuit recently applied the O'Brien test to a Memphis, Tennessee ordinance requiring licensing of sexually oriented businesses. See East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 226 (6th Cir. 1995). The prevailing opinions in Barnes also applied the O'Brien test to nude dancing. See Barnes, 501 U.S. at 567, 111 S.Ct. at 2461 (plurality opinion); id. at 582, 111 S.Ct. at 2468-69 (Souter, J., concurring). Under the O'Brien test,

To withstand constitutional scrutiny, the regulation must (1) be within the constitutional powers of government; (2) further a substantial government's interest; (3) the government interest must be unrelated to the suppression of free expression; and (4) regulation must pose an incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest.

East Brooks Books, 48 F.3d at 226.

The City has "a legitimate and substantial interest in controlling the secondary effects associated with sexually oriented businesses, and such regulation is within the constitutional powers of government." Id. What are the secondary effects here? In Broadway Books, this Court made findings that the Chattanooga Ordinance furthered a substantial government interest. Those findings related to adult bookstores which featured videos shown in closed booths. Semen, blood, used condoms, defecation, and urine on the floors of those booths were found to be a health hazard justifying an ordinance provision making the booths visible from the common area of the bookstores. 642 F.Supp. at 491. In addition, the adult bookstores had generated arrests for numerous sex-related and other crimes. Id. As a result, the Ordinance's "open booth" requirement was found to further a substantial government interest. Id. That holding has been replicated in numerous cases. See, e.g., Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123, 142 (3d Cir.1993); Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Cir.1991); Postscript Enters. v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir.1990); Doe v. City of Minneapolis, 898 F.2d 612, 617 (8th Cir.1990); Berg v. Health & Hosp. Corp. of Marion County, Ind., 865 F.2d 797, 802 (7th Cir.1989); FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1304 (5th Cir.1988), vacated in part on other grounds, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Wall Distribs., Inc. v. City of Newport News, Va., 782 F.2d 1165, 1169 (4th Cir.1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1246 (9th Cir.1982); Grunberg v. Town of East Hartford, Conn., 736 F.Supp. 430, 437 (D.Conn.1989), aff'd, 901 F.2d 297 (2d Cir.1990) (per curiam); Movie & Video World, Inc. v. Board of Comm'rs of Palm Beach County, Fla, 723 F.Supp. 695, 699 (S.D.Fla.1989); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 589 (E.D.Wis.1988).

The Ordinance is challenged in this case by an "adult cabaret," another genré of "adult-oriented establishment." Plaintiff Ann Martin, the owner of DLS, owned and operated in Chattanooga an establishment known as the "Classic Cat" during the late 1970's and early 1980's, before enactment of the Ordinance. Other...