Felix v. Young, No. 75-1763

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before EDWARDS, CELEBREZZE and McCREE; CELEBREZZE; McCREE
• Citation: 536 F.2d 1126
• Parties: Frank D. FELIX d/b/a Club Zeus, Plaintiff-Appellant, v. Coleman A. YOUNG, Mayor, City of Detroit, et al., Defendants-Appellees.
• Docket Number: No. 75-1763
• Decision Date: 17 June 1976

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536 F.2d 1126 Frank D. FELIX d/b/a Club Zeus, Plaintiff-Appellant,
v.
Coleman A. YOUNG, Mayor, City of Detroit, et al.,
Defendants-Appellees. No. 75-1763. United States Court of Appeals,
Sixth Circuit. Argued Feb. 18, 1976.
Decided June 17, 1976.

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Stephen M. Taylor, Taylor & Rubin, Detroit, Mich., S. Richard Schneider, Schneider, Weisberg & Meisner, Southfield, Mich., for plaintiff-appellant.

Elliott S. Hall, Maureen P. Reilly, John E. Cross, Detroit, Mich., for defendants-appellees.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellant, Frank D. Felix, appeals the grant of summary judgment for Defendants in an action brought under 42 U.S.C. section 1983 (1970). Appellant owns the Club Zeus, a bar in Detroit which features "topless" dancing. He brought this suit against various city officials ¹ seeking to enjoin the enforcement of certain municipal

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ordinances which regulate the location of businesses providing adult entertainment.

The Club Zeus is a Group "D" Cabaret as described by ordinance:

A cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers. ²

As a condition to receiving a cabaret license, Appellant was required to comply with special zoning restrictions, notably a prohibition against the establishment of a Group "D" Cabaret within 1000 feet of two other "regulated uses." ³ The District Court found that there are three other regulated uses within 1000 feet of Club Zeus and that Appellant has not obtained a waiver of the restriction as provided by ordinance. ⁴ Appellant claims that he need not seek waiver of the zoning restrictions because the municipal ordinances regulating the location of Group "D" Cabarets are unconstitutional, both on their face and as applied. He contends that the provisions are overbroad because they infringe on forms of expression protected by the First Amendment. He also claims that the ordinances violate the Equal Protection Clause of the Fourteenth Amendment because they classify businesses according to the content of expression offered the public.

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Appellees responded to the complaint by moving that the case be dismissed for failure to state a claim, Fed.R.Civ.P. 12(b)(6), or, in the alternative, that summary judgment be granted. Fed.R.Civ.P. 56. The District Judge, pursuant to Rule 12(b) ⁵ treated the motion as one for summary judgment and considered the materials attached to Appellees' motion in making his ruling. See generally 6 J. Moore FEDERAL PRACTICE P 56.08 at 2104 (2d ed. 1975) (hereinafter Moore). Appellant chose to rely on his pleadings and did not submit any additional material to the Court. The District Judge found the ordinance constitutional on their face relying on the reasoning of Nortown Theatre, Inc. v. Gribbs, 373 F.Supp. 363 (E.D.Mich.1974), a case which has since been reversed on appeal under the name American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014 (6th Cir.), cert. granted 423 U.S. 911, 96 S.Ct. 214, 46 L.Ed.2d 139 (1975). Appellant contends that the reversal of the District Court opinion in American Mini Theatres compels the same result in this case. He also charges that the Court below in granting Appellees' motion for summary judgment failed to adequately consider his claim that the ordinances were unconstitutional as applied to him.

Summary judgment is a useful procedure for reaching the merits of a case short of conducting a full-blown trial. See generally 6 Moore P 56.15. Summary judgment is only appropriate where documents tendered to the Court disclose that no genuine issue of material fact remains to be decided. ⁶ See United States v. Diapulse, 527 F.2d 1008, at 1011 (6th Cir. 1976). See also6 Moore P 56.04(1) at 2060. A District Judge may grant summary judgment only where the prevailing party has demonstrated as a matter of law that he is entitled to judgment on the merits. See Fed.R.Civ.P. 56(c). See also Kennedy v. Silas Mason Co., 334 U.S. 249, 252 n. 4, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948). A court may not resolve disputed issues of fact in ruling on a summary judgment motion. See United States v. Diapulse, supra at 1011. If a question of fact remains, the motion for summary judgment should be denied and the case should proceed to trial. See Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). Since resolution of Appellant's challenge to the facial validity of the ordinances raised purely legal questions and did not involve disputed issues of fact, the District Court properly concluded that the issue was ripe for summary judgment.

In ruling on the facial validity of the ordinance the District Judge adopted the legal analysis of Nortown Theatre, Inc. v. Gribbs, supra. ⁷ However, in American Mini

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Theatres v. Gribbs, supra, a divided panel of this Court rejected the legal conclusions reached by the District Court and held that the Detroit ordinances regulating the location of adult theaters and adult book stores violated equal protection in that they created classifications which unduly infringed on protected First Amendment rights. The majority concluded that the ordinances in question classified businesses according to the character of the materials purveyed to the public and accordingly " 'slip(ped) from the neutrality of time, place and circumstances into a concern about content,' " 518 F.2d at 1020, quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). If the District Court was correct that the disposition of this case should be controlled by resolution of the earlier cases, we would be compelled to reverse in light of American Mini Theatres.

However, there is a critical distinction between this case and American Mini Theatres. This case does not concern the regulation of book stores or theaters but restrictions imposed on the location of cabarets, establishments licensed to dispense liquor. ⁸ This crucial difference interjects an additional element into the case the power of the states under the Twenty-first Amendment to regulate the sale of alcohol. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), Justice Rehnquist writing for a majority of the Court, reversed a decision of a three-judge court and upheld the constitutionality of a regulation of the California Department of Alcoholic Beverage Control which prohibited explicitly sexual live entertainment and films in bars and other establishments licensed to dispense liquor by the drink. Justice Rehnquist noted that the regulation was promulgated "not in the context of censoring a dramatic performance in a theater, but rather in a context of licensing bars and night clubs to sell liquor by the drink." 409 U.S. at 114, 93 S.Ct. at 395. He conceded that the Twenty-first Amendment does not supersede all other constitutional provisions in the area of liquor regulations, see e. g., Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), but stated that state regulations in the area of the Twenty-first Amendment are entitled to an enhanced presumption of validity. 409 U.S. at 115, 93 S.Ct. 390.

Although the Court admitted that the California regulations on their face infringed on protected expression, the majority made it clear that traditional First Amendment standards are not appropriate guidelines for the exercise of state regulatory authority under the Twenty-first Amendment:

We do not disagree with the District Court's determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U.S. 372, (78 S.Ct. 365, 2 L.Ed.2d 352) (1958), rev'g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O'Brien, supra. (United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672).

409 U.S. at 116, 93 S.Ct. at 396. The Larue majority went on to apply a rational basis test to the state regulations and found that "(t)he Department's conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational

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one." 409 U.S. at 118, 93 S.Ct. at 397. The Court stressed that the regulations, while facially overbroad, were not directed at the speech element of the entertainment but at the conduct of the entertainers and audience. ⁹ Id. at 117-18, 93 S.Ct. 390. Noting that the Twenty-first Amendment affords a state "wide latitude as to choice of means to accomplish a permissible end," the Court concluded that the state agency was within its power in establishing a broad prophylactic rule which prohibited "lewd" entertainment on licensed premises, even though some entertainment which might be termed "lewd" is actually protected speech and could not constitutionally be proscribed in specific instances. Id. at 116, 93 S.Ct. 390. Cf. id. at 119 n. 5, 93 S.Ct. 390. The Supreme Court also regarded as "critical" the fact that the state had not forbidden these performances "across the board" but only at establishments licensed to sell liquor by the drink. Id. at 118, 93 S.Ct. 390.

In California v. Larue the Supreme Court recognized that the broad power of the states to regulate the sale of liquor may outweigh any First Amendment interest in nude dancing. A state may promulgate broad prophylactic rules banning sexually explicit entertainment at licensed bars and cabarets so long as the regulations represent a reasonable...