Eggert Group, LLC v. Town of Harrison
| Decision Date | 08 June 2005 |
| Docket Number | No. 04-C-759.,04-C-759. |
| Citation | 372 F.Supp.2d 1123 |
| Parties | EGGERT GROUP, LLC, Plaintiff, v. TOWN OF HARRISON, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jeff Scott Olson, Jeff Scott Olson Law Firm SC, Madison, WI, for Plaintiff.
Patrick C. Miller, Miller & Ogorchock SC, Milwaukee, WI, for Defendant.
DECISION AND ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This action was commenced on August 10, 2004, when the plaintiff, Eggert Group, LLC, ("Eggert") filed a complaint in the United States District Court for the Eastern District of Wisconsin pursuant to 42 U.S.C. § 1983 alleging that Town of Harrison Ordinance No. 95, Sections 1.19 and 1.14, is facially invalid because it unlawfully infringes upon the plaintiff's freedom of expression secured by the First and Fourteenth Amendments. The ordinance at issue prohibits nude dancing in establishments that are licensed to serve alcoholic beverages. This action was originally assigned to United States District Judge William C. Griesbach and was transferred to this court after both parties consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General L.R. 73.1 (E.D.Wis.).
Currently pending before the court is the plaintiff's motion for summary judgment which is fully briefed and is ready for resolution. For the reasons which follow Eggert's motion for summary judgment will be granted.
In accordance with the provisions of Civil Local Rule 56.2(a) (E.D.Wis.), the plaintiff's motion for summary judgment was accompanied by a set of proposed findings of fact. Likewise, the defendant's response to the plaintiff's motion for summary judgment contained responses to the plaintiff's proposed findings of fact as well as some additional proposed findings of fact. A review of the parties' respective proposed findings and the responses thereto reveals that the following are material and undisputed facts in this case.
The Eggert Group, LLC, owns, operates, and holds a liquor license for an establishment in the Town of Harrison ("the Town" or "Harrison"), known as "Sapphires." (Pl.'s Proposed Finding of Fact ("PPFOF") ¶ 1.) Sapphires is a gentlemen's club which has a liquor license and provides live entertainment, including nude dancing. (PPFOF ¶ 2.)
After the liquor license was granted and Sapphires opened for business, the Town of Harrison passed, on May 18, 2004, Ordinance No. 95, Series 2004, Sec. 1.14(j) and (k) and Sec. 1.19, which prohibit nude dancing in establishments that serve liquor. (PPFOF ¶ 3.) Ordinance No. 95 applies only to establishments licensed by the Town of Harrison to sell alcohol. Eggert's Sapphires is one of those establishments. (Def.'s Proposed Finding of Fact ("DPFOF") ¶ 4.)
The Town has not issued any citations to Eggert based on Ordinance No. 95. The Town did issue one citation, based on a similar ordinance, on June 2, 2004. That citation is the subject of an ongoing case in the Wisconsin state courts. No other citations have been issued, and Eggert continues to operate unfettered. (DPFOF ¶ 2.) Eggert has never been closed down due to the action of the Town of Harrison. (DPFOF ¶ 3.)
Eggert claims that if it is forced to comply with the prohibitions, the plaintiff will suffer loss of its freedom of expression, protected by the First Amendment. (PPFOF ¶ 6.) In addition, Eggert claims that it believes it has suffered loss of profits as a result of its efforts to comply with the prohibitions. (PPFOF ¶ 7.)
The Harrison ordinance that regulates nude dancing in licensed establishments is comprised of two separate, but very similar sections:
Section 1.14 Conditions of Licensure.
(k) Improper Exhibitions. It shall be unlawful for any person to perform, or for any licensee or manager or agent of the licensee to permit an employee, entertainer or patron to engage in any live act, demonstration, dance or exhibition on the licensed premises which:
(1) Exposes his or her genital, pubic hair, buttocks, perineum, anal region or pubic hair region; or
(2) Exposes any device, costume or covering which gives the appearance of or simulates genitals, pubic hair, buttocks, perineum, anal region or pubic hair region; or
(3) Exposes any portion of the female breast at or below the areola thereof; or
(4) Engages in or simulates sexual intercourse and/or any sexual contact, including the touching of any portion of the female breast or the male and/or female genitals.
Section 1.19 Nude Dancing in Licensed Establishments Prohibited.
(b) Nude Dancing in Licensed Establishments Prohibited. It is unlawful for any person to perform or engage in, or for any licensee or manager or agent of the licensee to permit any person, employee, entertainer or patron to perform or engage in any live act, demonstration, dance or exhibition on the premises of a licensed establishment which:
(1) Shows his/her genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering; or
(2) Shows any portion of the female breast below a point immediately above the top of the areola; or
(3) Shows the covered male genitals in a discernibly turgid state.
(c) Exemptions. The provisions of this Section does [sic] not apply to the following licensed establishments; theaters, performing arts centers, civic centers, and dinner theaters where live dance, ballet, music and dramatic performances of serious artistic merit are offered on a regular basis and in which the predominant business or attraction is not the offering to customers of entertainment which is intended to provide sexual stimulation or sexual gratification to such customers and where the establishment is not distinguished by an emphasis on, or the advertising or promotion of, employees engaging in nude erotic dancing.
Harrison, Wis. Ordinance No. 95, § 1.14(k), § 1.19(b), (c) (reproduced in Pl.'s Br. at App. A-1 to A-5.)
A district court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Note to 1963 Amendment of Fed.R.Civ.P. 56(e) (quoted in Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "Summary Judgment is not appropriate `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party'" Payne v. Pauley, 337 F.3d 767, 770 (7th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party opposing a properly supported summary judgment motion "may not rest upon the mere allegations or denials of the adverse party's pleading" but rather must introduce affidavits or other evidence to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001). To state it differently, "[a] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir.2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir.1997)) (internal quotation marks omitted).
To determine whether a genuine issue of material fact exists, the court must review the record, construing all facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. See Heft v. Moore, 351 F.3d 278, 282 (7th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "`In the light most favorable' simply means that summary judgment is not appropriate if the court must make `a choice of inferences.'" Draghi v. County of Cook, 184 F.3d 689, 691 (7th Cir.1999) (quoting Smith, 129 F.3d at 425). The evidence must create more than "`some metaphysical doubt as to the material facts.'" See Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.2001) (quoting Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir.1995) (quoting Matsushita Elec. Indus. Corp., v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986))). A mere scintilla of evidence in support of the nonmovant's position is insufficient. See id. (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505).
Thus, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
The First Amendment provides that "Congress shall make no law... abridging the freedom of speech."1 U.S. Const. amend. I. In addition to the written and spoken word, a wide variety of expressive activity is entitled to protection under the First Amendment. See Texas v. Johnson, 491 U.S. 397,...
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