Doe v. Marine-Lombard
| Decision Date | 08 March 2017 |
| Docket Number | CIVIL ACTION NO: 16–14876 |
| Citation | 240 F.Supp.3d 501 |
| Parties | Jane DOE I, et al. v. Juana MARINE–LOMBARD |
| Court | U.S. District Court — Eastern District of Louisiana |
Harry Rosenberg, Jeremy T. Grabill, Lindsay J. Calhoun, Phelps Dunbar, LLP, New Orleans, LA, for Jane Doe I, et al.
Renee Gluth Culotta, Elizabeth Harper Emmett, Frilot L.L.C., New Orleans, LA, for Juana Marine–Lombard.
Before the Court is Plaintiffs' Motion for Preliminary Injunction (Rec. Doc. 16). The briefing for this motion was extensive, and included: the motion (Rec. Doc. 16) filed by Jane Doe I, Jane Doe II, and Jane Doe III; two oppositions thereto, one (Rec. Doc. 47) filed by Defendant Juana Marine–Lombard, in her Official Capacity as Commissioner, Louisiana Office of Alcohol and Tobacco Control ("Commissioner Marine–Lombard"), and another (Rec. Doc. 49) filed by Intervenor Jeff Landry, Attorney General for the State of Louisiana ("Intervenor"); and a reply (Rec. Doc. 53) filed by Plaintiffs. The oppositions (Rec. Docs. 47 and 49) filed by Commissioner Marine–Lombard and Intervenor (hereinafter, referred to collectively as the "State") each address different arguments made by Plaintiffs and read as one single opposition.
Plaintiffs argue that they are likely to succeed on the merits of the following claims: 1) Act No. 395 violates Plaintiffs' rights to free expression; 2) the Act is unconstitutionally overbroad; 3) the Act is unconstitutionally vague; 4) the Act violates the Equal Protection Clause; and 5) the Act violates Plaintiffs' due process rights. Because Plaintiffs have made a clear showing that they are entitled to the relief they request on grounds that Act No. 395 is unconstitutionally overbroad and unconstitutionally vague, the Court finds that the Motion for Preliminary Injunction (Rec. Doc. 16) should be GRANTED.
This litigation arises from an Act passed by the Louisiana legislature and signed into law by the Governor of Louisiana, John Bel Edwards. On or about June 5, 2016, Governor Edwards signed into law Act No. 395. This Act changed the substance of two statutes found within the Louisiana Alcoholic Beverage Control Law, which is Louisiana's regulatory scheme for the sale and consumption of alcohol. See La. Rev. Stat. § 26:1 ; Louisiana v. Larson , 94-1237, p. 7 (La. 4/10/95); 653 So.2d 1158, 1163. More specifically, Act No. 395 amended and reenacted statutes found within § 26:90 and § 26:286, both of which are provisions governing "Acts prohibited on licensed premises."1 The newly amended language of § 26:90(E) and § 26:286(E) introduces age-based restrictions for live entertainers on premises licensed to serve alcohol. See also § 26:90(D) and § 26:286(D) (). Both statutes read as follows:
Subject to the provisions of Subsection D of this Section, entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least eighteen inches above the immediate floor level and removed at least three feet from the nearest patron and shall be twenty-one years of age or older.
La. Rev. Stat. § 26:90(E) and § 26:286(E) (effective Aug. 1, 2016).2 Plaintiffs' complaint alleges that the effect of the amendment was to create an age restriction for erotic dancing that did not previously exist. The complaint further alleges that prior to enactment of Act No. 395, a person only needed to be eighteen years old to be an erotic dancer in Louisiana.
Act No. 395 became effective on August 1, 2016. Shortly thereafter, the Louisiana Office of Alcohol and Tobacco Control (ATC), the agency tasked with enforcing Act No. 395, began enforcing the Act throughout Louisiana, except for the City of New Orleans ("New Orleans"). Instead, the ATC planned to begin enforcing Act No. 395 in New Orleans on October 1, 2016.
Three erotic dancers who are under the age of twenty-one, but who are eighteen or older, filed a complaint on September 22, 2016 against Commissioner Marine–Lombard, in her Official Capacity as Commissioner of the ATC requesting injunctive and declaratory relief. (Rec. Doc. 1 at 19). All three Plaintiffs are women who are residents of Louisiana and who were employed as erotic dancers prior to the enforcement of Act No. 395. Plaintiffs are twenty, nineteen, and eighteen years of age, respectively. Two of the three Plaintiffs reside in New Orleans, while the other is a resident of Baton Rouge. Two of the Plaintiffs were employed as erotic dancers in Baton Rouge. These Plaintiffs allege that when Act No. 395 became effective on August 1, 2016, they were forced to stop working as erotic dancers, and instead worked as "shot girls," which the Plaintiffs allege is a less lucrative position. One of the Plaintiffs is employed as an erotic dancer in New Orleans.
Plaintiffs allege that Act No. 395 violates the First and Fourteenth Amendments to the United States Constitution and Article I, sections 2, 3, and 7 of the Louisiana Constitution. The complaint also alleges that Act No. 395 violates Plaintiffs' substantive due process rights under the Due Process Clause of the Fourteenth Amendment and their rights to contract under Article I, section 10(1) of the United States Constitution and Article I, section 23 of the Louisiana Constitution. Plaintiffs bring a facial challenge to the constitutionality of Act No. 395 and request a declaration that Act No. 395 violates the United States and Louisiana Constitutions. Plaintiffs also filed a Motion for Preliminary Injunction (Rec. Doc. 4–2) and Motion for Expedited Consideration (Rec. Doc. 5) requesting that the Court grant a preliminary injunction precluding Commissioner Marine–Lombard from enforcing Act No. 395 in New Orleans. Construing the Motion for Preliminary Injunction (Rec. Doc. 4–2) as a request for a Temporary Restraining Order, this Court temporarily restrained Commissioner Marine–Lombard from enforcing Act No. 395 anywhere within the state of Louisiana pending further Order of this Court on September 30, 2016. (Rec. Doc. 10 at 2–3.)
On November 3, 2016, Jeff Landry, in his official capacity as Attorney General of the State of Louisiana ("Intervenor") intervened in this matter. On November 14, 2016, both Commissioner Marine–Lombard and Intervenor (hereinafter, referred to collectively as the "State") filed separate oppositions to Plaintiffs' Motion for Preliminary Injunction. Commissioner Marine–Lombard's opposition (Rec. Doc. 47) and Intervenor's opposition (Rec. Doc. 49) each address different arguments made in Plaintiffs' Motion for Preliminary Injunction and are read as a single opposition.
A preliminary injunction is an "extraordinary and drastic remedy" that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Munaf v. Geren , 553 U.S. 674, 689, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). A plaintiff seeking a preliminary injunction must establish (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that their substantial injury outweighs the threatened harm to the party whom they seek to enjoin; and (4) that granting the preliminary injunction will not disserve the public interest. Planned Parenthood Ass'n of Hidalgo Cty. Tex., Inc. v. Suehs , 692 F.3d 343, 348 (5th Cir. 2012) ; accord Canal Auth. of Fla. v. Callaway , 489 F.2d 567, 572 (5th Cir. 1974).
None of the four requirements has a fixed quantitative value. Texas v. Seatrain Int'l, S. A. , 518 F.2d 175, 180 (5th Cir. 1975). Therefore, in applying the four-part test, "a sliding scale is utilized, which takes into account the intensity of each in a given calculus." Id. This requires "a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury that possibly could flow from the denial of preliminary relief." Klitzman, Klitzman & Gallagher v. Krut , 744 F.2d 955, 958 (3d Cir. 1984).
The decision to grant or deny a preliminary injunction is discretionary with the district court. Miss. Power & Light Co. v. United Gas Pipe Line Co. , 760 F.2d 618, 621 (5th Cir. 1985). However, because a preliminary injunction is an extraordinary remedy, it "should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements." Suehs , 692 F.3d at 348. Consequently, the decision to grant a preliminary injunction "is the exception rather than the rule." Miss. Power & Light Co. , 760 F.2d at 621.
The purpose of a preliminary injunction is limited to preserving the relative positions of the parties until a trial on the merits can be held. Univ. of Tex. v. Camenisch , 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). "Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Id. For this reason, the findings of fact and conclusions of law made by a court deciding whether to grant a preliminary injunction are not binding at trial on the merits. Id.
The Court must first consider whether Act No. 395 is a content-based or content-neutral restriction on Plaintiffs' First Amendment Rights. When the government's interest is to suppress the content of the speech, then strict scrutiny is applied to the government action. Fantasy Ranch, Inc. v. City of Arlington , 459 F.3d 546, 554 (5th Cir. 2006). Content-based restrictions on speech "presumptively violate the First Amendment," Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 46–47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and must be narrowly tailored to promote a compelling...
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