Dodger's Bar & Grill, Inc. v. Johnson County Bd. of County Com'rs
| Decision Date | 29 October 1996 |
| Docket Number | No. 95-3187,95-3187 |
| Citation | 98 F.3d 1262 |
| Parties | DODGER'S BAR & GRILL, INC., a corporation, d/b/a Bonita Flats Saloon, Rhondi Davis, Sheila King, Elizabeth Lucas, Rhonda Wheeler, Serena Parker, Melissa Jones, Melissa Finney, Cheri Davidson, Tammy Scheumeister, Anita Bower, Marley Weston, Suzy Kelly, Rachal Workman, Brooke Utz, Debra Maness, Gena Lilly, Laurie Boyer, Shelly Stewart, Vicki Smith, Jessica Allen, Deanna Hurst, Brenda Shook, Cyndi Schmidt, Susan Prince, Kristi Martin, Angela Thomas, Desiree Edwards, Orissa Hanson, Jackie Arnett, Robin Packard, Nicole Hestand, Jana Sullins, Nancy Sesler, Hester Ramey, Lewana Duncan, Sandy Watson, Chrissie Malloy, Tina L. Smith, Plaintiffs-Appellants, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS, Johnna (NMI) Lingle, Chair, Johnson County Commissioner, Sue E. Weltner, Johnson County Commissioner, Bruce R. Craig, Johnson County Commissioner, Murray L. Nolte, Johnson County Commissioner, Dan (NMI) Hosfield, Johnson County Commissioner, Fred Allenbrand, Johnson County Sheriff, Paul (NMI) Morrison, Johnson County District Attorney, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Brock R. Snyder, Topeka, Kansas, for Plaintiffs-Appellants.
LeeAnne Hayes Gillaspie, Johnson County Legal Department, Olathe, Kansas, for Defendants-Appellees Board of County Commissioners, and Lawrence L. Ferree, III, and Ronald C. Rundberg of Ferree, Bunn & Byrum, Overland Park, Kansas, for Defendant-Appellee Fred Allenbrand, Johnson County Sheriff.
Before ANDERSON, McWILLIAMS and ENGEL *, Circuit Judges.
This case originally was set for oral argument before this panel on May 13, 1996. On May 1, 1996, the parties filed with this court a stipulation for submission of the case on the briefs. On May 7, 1996, this panel, after examining the briefs and the appellate record, determined that oral argument would not materially assist the decisional process. Accordingly, we construed the stipulation as a motion to strike the case from the oral argument calendar and to submit the case on the briefs. We then granted such motion and ordered the case to be submitted on the briefs. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.2.
Dodger's Bar & Grill, Inc., d/b/a Bonita Flats Saloon ("Bonita Flats"), and thirty-eight of its "entertainers," brought a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the District of Kansas against the Board of County Commissioners of Johnson County, Kansas, and certain Johnson County officials. The plaintiffs sought a declaration by the district court that certain resolutions of the Board of County Commissioners enacting regulations for business establishments which serve alcohol or cereal malt beverages for consumption on the premises were unconstitutional. The plaintiffs also sought an injunction prohibiting the county officials from enforcing the resolutions here in question. Specifically, in their complaint the plaintiffs challenged the constitutionality of Resolutions 67-92 and 68-92. The defendants filed an answer to the complaint in which they alleged that the resolutions under attack were constitutional.
The case was tried to the district court, which upheld the constitutionality of Resolution 67-92, but did not rule on the plaintiffs' challenge to Resolution 68-92. Dodger's Bar & Grill, Inc., v. Johnson County Bd. of County Comm'rs, 815 F.Supp. 399 (D.Kan.1993).
On appeal, we upheld the district court's holding that Resolution 67-92 was constitutional and affirmed the district court's entry of judgment for the defendants on plaintiffs' claims for injunctive relief and declaratory judgment. However, we remanded the case to the district court with directions that it rule on the constitutionality of Resolution 68-92. Dodger's Bar & Grill, Inc., v. Johnson County Bd. of County Comm'rs, 32 F.3d 1436 (10th Cir.1994).
On remand, after the parties filed supplemental briefs, the district court, taking into consideration the evidence adduced at the first trial of this matter, upheld the constitutionality of Resolution 68-92 and entered judgment for the defendants on plaintiffs' claims for injunctive relief and declaratory judgment. Dodger's Bar & Grill, Inc., v. Johnson County Bd. of County Comm'rs, 889 F.Supp. 1431 (D.Kan.1995). Plaintiffs appeal that judgment. We affirm.
We are in general accord with the district court's holding that Resolution 68-92 is constitutional and we affirm its judgment denying the plaintiffs both declaratory and injunctive relief. Such being the case, we do not propose a prolix opinion in the present appeal. There are already three published opinions concerning Bonita Flats' dispute with Johnson County, two by the district court and one by this court. Therefore, the background facts have already been fully set forth and will not be unnecessarily repeated here.
As indicated, in 1992, the Board of County Commissioners of Johnson County decided to regulate the "entertainment" to be permitted or allowed on premises where alcoholic beverages or cereal malt beverages were served. Resolution 68-92 has an "applicability" provision, which read as follows:
This Chapter shall apply from and after its effective date to all persons and all property located within the unincorporated area of Johnson County, Kansas and shall be applicable to any business establishment, whether licensed or not, now located or hereafter locating within or upon any property located in the unincorporated area of Johnson County, Kansas, which serves alcoholic beverages or cereal malt beverages for consumption on the premises, and to any operator of any such establishment.
In Dodger, 32 F.3d 1436 (10th Cir.1994), we upheld the constitutionality of Resolution 67-92 on the basis of the Twenty-First Amendment, rejecting the plaintiffs' suggestion that the controversy involved the First Amendment. 1 The particular provisions of Resolution 67-92 there under attack were the following:
ARTICLE IV. PROHIBITED CONDUCT
SECTION 1. Nudity and Sexual Conduct Prohibited.
(1) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law; or
(2) The touching, caressing or fondling of the breast, buttocks, anus, or genitals; or
(3) The displaying of post-pubertal human genitals, buttocks, or pubic area, or the female breast below the top of the nipple.
C. It shall be unlawful for any person to show, display or exhibit, on licensed premises, any film, video, still picture, electronic reproduction or any other visual reproduction or image of any act or conduct described in paragraphs A and B of this Section.
SECTION 2. Allowing Persons to Engage in Prohibited Acts.
A. No operator shall allow or permit to remain in or about the licensed premises any person who performs acts of or acts which constitute or simulate:
(1) Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law; or
(2) The touching, caressing or fondling of the breast, buttocks, anus or genitals; or
(3) The displaying of post-pubertal human genitals, buttocks, or pubic area, or the female breast below the top of the nipple.
As indicated, in Dodger's, 32 F.3d 1436 (10th Cir.1994), we upheld the constitutionality of Resolution 67-92 and remanded the case to the district court with directions that it rule on the constitutionality of Resolution 68-92. That resolution, in pertinent part, provides as follows:
SECTION 5. SEPARATE PREMISES. No operator shall allow or permit any door, window, or other entrance or opening leading directly to or through an enclosed area from an establishment serving alcoholic beverages for consumption on the premises to another room, building, premises or place wherein or whereon acts prohibited by Chapter 1 of this Code can or do occur; nor...
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