DLS, Inc. v. City of Chattanooga

• Decision Date: 12 October 1995
• Docket Number: No. 1:95-cv-333.,1:95-cv-333.
• Citation: 914 F. Supp. 193
• Parties: DLS, INC. d/b/a Diamonds and Lace Showbar; Ann Martin; Renita Henegar; and Michelle Morjal, Plaintiffs, v. CITY OF CHATTANOOGA; Gene Roberts, Mayor; Chattanooga City Council; Mai Bell Hurley, Chairperson; Don Eaves; David Crockett; David Disteffano; Yusef Hakeem; John Lively; Leamon Pearce; Marti Rutherford; Ron Swafford; Ralph Cothran, Chief of Police; Randall Nelson, City Attorney; Ervin Dinsmore, Safety Administrator, Charles W. Burson, Tennessee Attorney General, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

914 F. Supp. 193

DLS, INC. d/b/a Diamonds and Lace Showbar; Ann Martin; Renita Henegar; and Michelle Morjal, Plaintiffs, v. CITY OF CHATTANOOGA; Gene Roberts, Mayor; Chattanooga City Council; Mai Bell Hurley, Chairperson; Don Eaves; David Crockett; David Disteffano; Yusef Hakeem; John Lively; Leamon Pearce; Marti Rutherford; Ron Swafford; Ralph Cothran, Chief of Police; Randall Nelson, City Attorney; Ervin Dinsmore, Safety Administrator, Charles W. Burson, Tennessee Attorney General, Defendants.

No. 1:95-cv-333.

United States District Court, E.D. Tennessee.

October 12, 1995.

Jerry H. Summers/Jimmy F. Rodgers, Jr., Chattanooga, TN, for Plaintiffs.

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

MEMORANDUM

EDGAR, District Judge.

This case is before the Court on the plaintiffs' application for a preliminary injunction against the City of Chattanooga ("City") and the other defendants seeking to enjoin enforcement of CHATTANOOGA CITY CODE §§ 25-84, 25-85, 11-434(j), 11-435(c), and TENN. CODE ANN. § 39-13-511. By separate order entered this date, this Court has made a recommendation that insofar as this case involves a challenge to TENN.CODE ANN. § 39-13-511 the case should be transferred by the Joint Panel on Multi-District Litigation ("Panel") to the United States District Court for the Middle District of Tennessee. Procedurally this transfer will have to be made by an order of the Panel. In anticipation that this transfer will be accomplished, the Court will, therefore, deal only with the remainder of the case as it applies to the above-named Chattanooga city ordinances.

The factors which this Court must consider in determining whether a preliminary injunction should issue are the following: (1) the likelihood of plaintiffs' success on the merits; (2) whether the injunction will save the plaintiffs from irreparable injury; (3) whether the injunction will harm others; and (4) Whether the public interest would be served by the injunction. In re DeLorean Motor Company, 755 F.2d 1223, 1228 (6th Cir.1985).

Likelihood of Success on the Merits

The City concedes that its § 25-84 is not directed at nude dancing. Furthermore, § 11-434(j), which only prescribes the contents of signs to be placed in adult-oriented establishments, clearly does itself not prohibit nude dancing. Therefore, the focus must be on the two remaining ordinances.

CHATTANOOGA CITY CODE § 25-85 reads in its entirety:

(a) Definitions. As used in this section, the following terms shall have the meanings indicated:

Public place shall include: streets, sidewalks or highways; transportation facilities; schools; places of amusement; parks, playgrounds; restaurants; nightclubs; cocktail lounges; burlesque houses; bars; cabarets; taverns; taprooms; private fraternal, social, golf or country clubs; or any place that allows the consumption of intoxicating beverages on the premises.

Wholly or substantially exposed to public view, as it pertains to breasts, shall mean the showing of the female breast, in a public place, with less than a fully opaque covering of any portion of the breast below the top of the nipple.

(b) Prohibited acts. It shall be unlawful for any person to perform in a public place, or for any person who owns or operates premises constituting a public place to knowingly permit or allow to be performed therein, any of the following acts or conduct:

(1) The performance of acts of simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;

(2) The actual or simulated touching, caressing or fondling of the breasts, buttocks, anus or genitals in public; or

(3) The actual or simulated public displaying of the pubic hair, anus, vulva or genitals;

(4) The appearance by any female in a public place so costumed or dressed that one or both breasts are wholly or substantially exposed to public view, or any owner or operator of premises constituting a public place knowingly permitting or allowing any such person to appear on the premises owned or operated by him.

(c) Penalty. Any person violating any of the provisions of this section, upon conviction by the court, may be imprisoned for not more than thirty (30) days, and shall be fined not less than twenty-five dollars ($25.00), nor more than fifty dollars ($50.00) for each violation.

Nude dancing, under legal precedent, is considered to be expressive conduct that is marginally protected by the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504, 511 (1991), Schad v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981). Unfortunately, the law is not very clear about what should happen when government regulations and First Amendment rights collide over nude dancing. The Supreme Court's decision in Barnes contains four separate opinions on the subject. Deriving the significance of the Barnes decision is, as the Sixth Circuit recently pointed out, like reading tea leaves. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir.1994). Nonetheless, since Justice Souter's opinion resolved the issue before the Supreme Court on the narrowest grounds, we must look to that opinion for guidance. Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); Triplett Grille, 40 F.3d at 133-35.

The result of Barnes was that Indiana's public indecency statute does not violate the First Amendment. That statute does not in any significant way differ from CHATTANOOGA CITY CODE § 25-85. Justice Souter said that the Indiana statute passed the four-part test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).¹ Justice Souter concluded that the intent of the enacting legislative body is not important; what matters is whether the nude dancing ban addresses a governmental interest. Barnes, 501 U.S. at 581, 111 S.Ct. at 2468, 115 L.Ed.2d at 522 (Souter, J., concurring). He concluded that nude dancing can be banned since, as a matter of law, such a ban furthers a governmental interest in preventing prostitution, sexual assault and associated crimes. Id. at 581-82, 111 S.Ct. at 2468-69, 115 L.Ed.2d at 522-23. He also said that Indiana's nude-dancing ban is unrelated to suppression of free expression and is no greater than is essential to further the governmental interest. Id. at 582-87, 111 S.Ct. at 2469-71, 115 L.Ed.2d at 523-25.

The plaintiffs point to the Sixth Circuit's recent decision in Triplett Grille and contend that § 25-85 is vague and overbroad. In Triplett Grille, the Court of Appeals examined an Akron, Ohio ordinance which, on its face, is identical to the Indiana public indecency statute, and similar to CHATTANOOGA CITY CODE § 25-85. The Court found the Akron ordinance to be overbroad because

The Akron public indecency ordinance at issue here prohibits all public nudity, including live performances with serious literary, artistic, or political value. The ordinance makes no attempt to regulate only those expressive activities associated with harmful secondary effects and includes no limiting provisions. Instead, Akron's wide ban on public nudity sweeps within its ambit expressive conduct not generally associated with prostitution, sexual assault, or other crimes.

40 F.3d at 136. In short, since the Akron ordinance did not contain an artistic-cultural-political exemption, it was overbroad.

There are several reasons why the Triplett analysis does not apply to this case. First, in Triplett, the lawmakers testified that the Akron ordinance was intended to reach "all public nudity in Akron, including theatrical performances and barroom dancing." Id. at 131. There is no such evidence in this case to date. Second, the Triplett court observed that the Akron ordinance was subject to an overbreadth challenge, whereas the Indiana statute in Barnes was not. This was because the Indiana statute had been given a limiting construction by the Indiana Supreme Court. Id. at 136 n. 3. In similar fashion, CHATTANOOGA CITY CODE § 25-85 has indeed been narrowly construed by the Tennessee Supreme Court. In City of Chattanooga v. McCoy, 645 S.W.2d 400 (Tenn.1983), the Tennessee Supreme Court said:

The obvious thrust of the Chattanooga ordinance is to outlaw nudity and indecent sexual conduct in public without any express or implied intent to suppress or prohibit any legitimate speech or expression entitled to First Amendment protection.

Id. at 403. The Tennessee Supreme Court went on to conclude that § 25-85 is not constitutionally overbroad. Thus, it is clear that § 25-85 as construed by the Tennessee Supreme Court does not attempt to regulate nudity in performances which have serious literary, artistic or political value. It is also noteworthy that at one time the ordinance did include within the definition of a "public place" the terms "theaters" and "auditoriums." After an adverse decision by the Tennessee Court of Appeals in 1978, the City removed this terminology from the ordinance. Therefore, despite the Sixth Circuit's Triplett decision, it is clear that § 25-85 is not overbroad.

Plaintiffs argue that the challenged city ordinances are pre-empted by the passage of Chapter 542 of the Public Acts of Tennessee 1994 (codified at TENN.CODE ANN. § 39-13-511 (1994)). Plaintiffs base their argument on two cases from the Supreme Court of Tennessee, Capitol News Co. v. Metropolitan Government of Nashville, 562 S.W.2d 430 (Tenn.1978), and City of Bartlett v. Hoover, 571 S.W.2d 291 (Tenn.1978). Both of these cases are distinguishable on their facts. Capitol News involved a conflict between the state obscenity statute, TENN.CODE ANN. § 39-1012, and a local ordinance. Hoover involved a conflict between the state gambling statute, TENN.CODE ANN. §§ 6-202, 39-2033(2), 39-2033(4), and a local ordinance. Both cases cite Southern Ry. v. City of Knoxville, 223 Tenn. (1 Pack) 90, 442...