DPR, Inc. v. City of Pittsburg, 76352

• Decision Date: 23 January 1998
• Docket Number: No. 76352,76352
• Citation: 24 Kan.App.2d 703,953 P.2d 231
• Parties: DPR, INC., a Kansas Corporation, d/b/a Pat's Lounge; Patricia Rohrbaugh, as President of DPR, Inc.; and Don Rohrbaugh, as Secretary/Treasurer of DPR, Inc.; as Officers of Said Corporation and in Their Own Proper Persons, Appellants, v. CITY OF PITTSBURG, Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 231

953 P.2d 231

24 Kan.App.2d 703

DPR, INC., a Kansas Corporation, d/b/a Pat's Lounge Patricia Rohrbaugh, as President of DPR, Inc.; and Don Rohrbaugh, as Secretary/Treasurer of DPR, Inc.; as Officers of Said Corporation and in Their Own Proper Persons, Appellants, v. CITY OF PITTSBURG, Kansas, Appellee.

No. 76352.

Court of Appeals of Kansas.

Jan. 23, 1998.

Review Denied March 17, 1998.

Syllabus by the Court

1. Ordinarily, the constitutionality of government action can only be challenged by a person directly affected, and such challenge cannot be made by invoking the rights of others. A special exception to this rule permits a party to raise overbreadth arguments when a statute purports to regulate First Amendment rights of others.

2. Under the Twenty-first Amendment to the United States Constitution, a state's regulatory power over intoxicating liquors and places that sell them is largely unfettered by the Commerce Clause.

3. Despite its power under the Twenty-first Amendment, a state may not exercise that power in such a way as to deprive citizens of their First Amendment rights. If there is a conflict between the First and Twenty-first Amendments, the First Amendment controls over the Twenty-first Amendment.

4. Article 2, § 16 of the Kansas Constitution Bill of Rights and K.S.A. 12-3004 are discussed and applied.

5. A city need not show specific examples of pernicious secondary effects caused by a drinking establishment before it can regulate that business. The city may rely on evidence from other cities so long as such evidence is reasonably believed to be relevant to the problem addressed.

6. An ordinance which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is vague and violative of due process.

7. In determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately 8. Ordinance G-741, involved herein, is not unconstitutionally vague.

guards against arbitrary and discriminatory enforcement.

9. An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing the law's constitutionality from its unconstitutional applications.

10. The provision of the ordinance prohibiting the showing of any motion picture "not given a rating by the Motion Picture Association of America of G, PG, PG-13, or R" is unconstitutionally overbroad.

11. Section 4(F) of the ordinance prohibits the showing of movies or photographs which display certain parts of the human anatomy on the premises of a drinking establishment. This section of the ordinance is unconstitutionally overbroad.

12. Section 4(B) of the ordinance prohibits the touching, caressing, or fondling of certain parts of the human anatomy on the premises of a drinking establishment. This provision would criminalize close dancing between an employee and his or her spouse and is unconstitutionally overbroad.

13. Under the facts shown in this case, totally nude dancing is not a First Amendment right, and the city ordinance is valid in its attempt to ban totally nude dancing on the premises of a drinking establishment.

William J. Pauzauskie, Topeka, for appellants.

C.A. Menghini, City Attorney, for appellee.

Donald L. Moler, Jr., for amicus curiae League of Kansas Municipalities.

Before LEWIS, P.J., GERNON, J., and CHARLES E. WORDEN, District Judge, Assigned.

LEWIS, Judge:

Appellant DPR, Inc., whom we shall refer to as plaintiff, has been operating in the City of Pittsburg (City) for over 15 years. The owners of DPR, Inc., Patricia and Don Rohrbaugh, operate a business known as "Pat's Lounge." This business is licensed to sell alcoholic beverages by the drink. It also features totally nude dancing as entertainment. It is worth noting that Pat's Lounge had been in the business of serving intoxicating liquors and presenting nude dancing to the public for approximately 15 years prior to the enactment of the ordinance which is the focal point of this action.

The ordinance in question regulates the services and entertainment offered by Pat's Lounge and prohibits totally nude dancing and certain other activities. The ordinance applies only in places where alcoholic beverages are sold. At the present time, Pat's Lounge is the only business in Pittsburg affected by the ordinance. Plaintiff filed this declaratory judgment action, seeking to have the constitutionality of the ordinance determined. The trial court found the ordinance to be constitutional in all respects, and plaintiff appeals.

The facts are not remarkable, although it does appear that plaintiff is caught in a web created by a city council that misread the future. For all intents and purposes, considering the type of establishment Pat's Lounge is, that business has caused very little trouble to law enforcement officers in the City over the past 15 years.

The defining event in this controversy came with the news that a proposed racetrack would be located near Pittsburg. The city council looked ahead and saw a future littered with nude dancing establishments. It was not the kind of future the council wanted to see. The result was ordinance G-741, which banned totally nude dancing and restricted other activities in establishments that sell alcoholic beverages.

The racetrack did not attract a great number of people to the Pittsburg area and has closed. As near as we can tell from this record, no other totally nude dancing establishments were opened and, at this time,

plaintiff operates the only establishment that is subject to the provisions of the ordinance.

STANDARD OF REVIEW

This is a case involving the constitutionality of a city ordinance. Our standard of review is set out in City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979), as follows:

" 'The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]

" 'In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]

" 'Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]

....

" 'The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere. [Citations omitted.]' [Citation omitted.]

"The general rule for reviewing statutes or ordinances enacted pursuant to the police power is stated in City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970), as follows:

" 'In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. [Citations omitted.] The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.' [Citation omitted.]"

STANDING

In many respects, plaintiff's argument against the ordinance is focused on the rights of plaintiff's customers and not itself. The City argues that plaintiff has no standing to raise these issues. "The constitutionality of government action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others." Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974).

In United States v. Hays, 515 U.S. 737, 742-43, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995), it was said:

"It is by now well settled that 'the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.' [Citations omitted.]"

Among other things, plaintiff attacks those portions of the ordinance which prohibit the showing of certain motion pictures, photographs, and other materials. There is nothing in the record to indicate that plaintiff's operation would be affected by this particular section of the ordinance. The City argues that under the circumstances, plaintiff has no standing to raise the issue.

Despite the general rule as set out above, we conclude that plaintiff does, indeed, have standing to invoke the rights of "A special standing rule permits a party to raise overbreadth when a statute purports to regulate the First Amendment rights of...