Fond du Lac County v. Mentzel

• Decision Date: 04 May 1995
• Docket Number: No. 94-1924,94-1924
• Citation: 536 N.W.2d 160,195 Wis.2d 313
• Parties: FOND DU LAC COUNTY, Plaintiff-Respondent, v. Donald D. MENTZEL, Defendant-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 160

536 N.W.2d 160

195 Wis.2d 313

FOND DU LAC COUNTY, Plaintiff-Respondent, v. Donald D. MENTZEL, Defendant-Appellant.

No. 94-1924.

Court of Appeals of Wisconsin.

Oral Argument May 4, 1995.

Opinion Released June 14, 1995.

Opinion Filed June 14, 1995.

On behalf of the defendant-appellant, there were briefs by Raymond M. Dall'Osto and Kathryn A. Keppel, Milwaukee. There was oral argument by Raymond M. Dall'Osto

On behalf of the plaintiff-respondent, there was a brief and oral argument by Kathryn J. Haupt, Corp. Counsel.

Before ANDERSON, P.J., and BROWN and NETTESHEIM, JJ.

BROWN, Judge.

Fond du Lac County has an ordinance requiring entertainers at Class B liquor establishments and dance halls to wear a minimal amount of clothing during performances, such as g-strings and pasties. We decide that although the ordinance is not unconstitutional as applied to Donald D. Mentzel, the owner of a Fond du Lac exotic nightclub, it is facially unconstitutional under the overbreadth doctrine because it encompasses nude expression which is not associated with harmful secondary effects. We reverse.

Mentzel's nightclub features entertainment consisting of nude and semi-nude female exotic dancing. His operation, however, has run afoul of a Fond du Lac County ordinance that requires Class B liquor license holders to obtain a cabaret permit before providing any form of dance entertainment. The ordinance forbids nudity, among other things, as a condition to using the permit. The pertinent text of the ordinance is set forth below. ¹ Mentzel was cited for violating this ordinance on three separate occasions. The trial court rejected several constitutional arguments raised by Mentzel and found him guilty of violating this licensing requirement. He now asserts that the County's regulatory scheme is vague and overbroad, and that it violates equal protection principles because this same type of entertainment is permitted in the City of Fond du Lac.

The general analysis used when testing the constitutional validity of a statute is set forth in State v. Mitchell, 163 Wis.2d 652, 658, 473 N.W.2d 1, 3 (Ct.App.1991), aff'd, 178 Wis.2d 597, 504 N.W.2d 610 (1993). Although a defendant normally bears the burden of establishing beyond a reasonable doubt that a statute is unconstitutional, because the ordinance at issue regulates the exercise of First Amendment rights, the burden is shifted to the government. Id. Although Mentzel comingles his three specific constitutional challenges into a single argument, his briefs and oral argument claims can be distilled to reveal the following basic assertions.

VAGUENESS

Mentzel claims that the ordinance is unconstitutionally vague as applied to him because it does not clearly and unequivocally state that liquor establishments may not have nude dancing. He also notes that discussions with police and planning officials, as well as his own attorney, suggested to him that the statute could be interpreted several ways, but arguably would allow nude dancing provided that no alcohol is served at the establishment.

The two-prong test for vagueness assesses whether: (1) the ordinance is sufficiently definite to give persons of ordinary intelligence who seek to avoid its penalties fair notice of the conduct required or prohibited; and (2) the ordinance provides standards for those who enforce the laws and adjudicate guilt. State v. McManus, 152 Wis.2d 113, 135, 447 N.W.2d 654, 662 (1989).

Setting aside his ruminations about how the ordinance could be interpreted, Mentzel fails to articulate how these standards are not met. Whether Mentzel was violating the provisions of the ordinance which specify the amount of clothing that the dancers must wear is completely irrelevant to his conviction. The statutory language is plain and simple. It requires that any Class B liquor license holder providing any form of dancing entertainment must also obtain a cabaret license. The relevant section specifically provides:

License required No holder of a class 'B' liquor, beer license, or dance hall within the unincorporated area of Fond du Lac County shall afford to their patrons: entertainment which specifically features or advertises dancing by the performance of any act, stunt or dance by performers under the auspices of the management, whether such dancers are paid or not unless the owner shall first have obtained a Cabaret License from the County Clerk.

FOND DU LAC COUNTY, WIS., CABARET ORDINANCE § 1 (May 16, 1989). Even a cursory scan reveals how it entails a strict liability forfeiture with four elements: (1) whether the defendant is a Class B liquor license holder; (2) whether the holder has management control; (3) whether entertainment was provided; (4) whether management had a cabaret license. Mentzel was in possession of a Class B license, and the facility he operated featured dancing entertainment. There can be no legitimate debate that he featured the dancing entertainment even though he tried and was unable to obtain a license from the County. Mentzel argues that he attempted to get a license, but that the County summarily denied him that opportunity. His remedy was not to forge ahead and feature nude dancing in any event. His proper remedy was to appeal the denial of the permit on grounds that the denial was arbitrary, capricious and denied him due process. He did not do so. He cannot now come to this court and complain. We conclude

that Mentzel's arguments about the ordinance's various interpretations are not relevant. ²

OVERBREADTH

This line of inquiry is analytically distinguishable from vagueness. Overbreadth challenges seek to prevent government from promulgating sweeping regulations that touch upon constitutionally protected conduct. There is an underlying concern that if such regulations go unchecked, citizens will be deterred from exercising their various rights, the so-called chilling effect. See Mitchell, 163 Wis.2d at 663, 473 N.W.2d at 5. See also NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337-38, 9 L.Ed.2d 405 (1963). Given the rationale supporting application of this constitutional test, challengers need not limit their attack to arguments based on their own activities. They may also make use of hypotheticals to demonstrate how the challenged ordinance or statute could impede the rights of other citizens. Mitchell, 163 Wis.2d at 663, 473 N.W.2d at 5.

The United States Supreme Court's most recent analysis of the First Amendment issues implicated in nude dancing was set forth in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). There, the Court faced a claim that an Indiana statute prohibiting public nudity violated the First Amendment rights of owners of exotic clubs and professional exotic dancers. Id. at 562-63, 111 S.Ct. at 2458-59. Eight Justices concluded that nude dancing is expressive conduct and thus is entitled to constitutional protection. See id. at 565-66, 111 S.Ct. at 2459-60 (opinion of Rehnquist, C.J.) (joined by O'Connor and Kennedy, JJ.) (concluding "only marginally so"); id. at 581, 111 S.Ct. at 2468 (Souter, J., concurring) (concluding that nude dancing "is subject to a degree of First Amendment protection"); see id. at 587, 111 S.Ct. at 2471 (White, J., dissenting) (joined by Marshall, Blackmun and Stevens, JJ.); but see id. at 572, 111 S.Ct. at 2463-64 (Scalia, J., concurring) (concluding that nude dancing "is not subject to First-Amendment scrutiny at all").

The decision, however, was splintered on the issue of how government may reasonably regulate these protected expressions. ³ The plurality, led by Chief Justice Rehnquist and Justice Souter in a concurring opinion, agreed that a "time, place and manner" analysis would be appropriate for assessing the legitimacy of state regulatory efforts in this arena. Id. at 566, 582, 111 S.Ct. at 2460, 2468. Both Chief Justice Rehnquist's opinion and Justice Souter's opinion applied the four-part test announced in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which acknowledges that government may infringe upon the First Amendment freedoms in its effort to regulate certain conduct provided: (1) the targeted conduct falls within the domain of state regulatory power; (2) the statutory scheme furthers an important or substantial interest; (3) the state's regulatory efforts are unrelated to the suppression of free expression; and (4) the regulations are narrowly tailored. See Barnes, 501 U.S. at 566-67, 111 S.Ct. at 2460-61 (quoting O'Brien, 391 U.S. at 376-77, 88 S.Ct. at 1678-79).

The disagreement among the plurality in Barnes focused on the second and third prongs. Chief Justice Rehnquist and two other members of the plurality believed that a state's interest in promoting "morality" was a legitimate reason to suppress First Amendment rights. Id. at 568, 111 S.Ct. at 2461-62. Justice Souter's conclusion was narrower. He wrote that the states had a legitimate interest in regulating the "secondary effects" of adult entertainment. Id. at 582, 111 S.Ct. at 2468-69 (Souter, J., concurring). Secondary effects are defined by example, such as increased criminal activity and prostitution. Id. Justice Souter reasoned that these concerns justify state infringement upon the protected expression associated with nude dancing. Id. at 582-83, 111 S.Ct. at 2468-69.

Having visited at length the holding of the Court in Barnes, the next task for this court is to determine how we analyze the Fond du Lac ordinance in light of Barnes. If we follow Chief Justice Rehnquist's lead opinion, we review the Fond du Lac ordinance from the point of view that government can curtail nude dancing for reasons of morality. If we follow Justice Souter's opinion, then the proper question to ask is whether the ordinance is narrowly tailored to address the secondary effects of adult entertainment.

Simply because Chief Justice Rehnquist wrote the lead opinion in Barnes does not...