Gatena v. County of Orange
| Decision Date | 05 November 1999 |
| Docket Number | No. 98-417CIVORL22B.,98-417CIVORL22B. |
| Citation | 80 F.Supp.2d 1331 |
| Parties | Kim GATENA, Plaintiff, v. COUNTY OF ORANGE, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on a challenge to the constitutionality of section 26-26 of the Orange County Code, which prohibits public nudity with some exceptions. Plaintiff, Kim Gatena ("Gatena"), is a nude dancer. Gatena believes that a nude woman engaged in dance, combined with music, is an art form which conveys "an important message of sexuality and eroticism." [Compl. § IV.C.] Gatena claims that Orange County's public nudity ordinance unconstitutionally infringes upon her right to continue in her chosen profession, expand her livelihood, and promote her message of eroticism. Gatena's challenges to the Code are facial and as applied.
Gatena and the Defendant, County of Orange ("the County"), have filed cross-motions for summary judgment. (Docs. 41 & 61.) The parties believe there are no material issues of fact to be tried. See Pretrial Statement (Doc. 70). Upon considering the pleadings and other supporting material submitted by both parties, the Court determines that the County is entitled to summary judgment on all of Gatena's claims.
On October 27, 1992, the Orange County Board ("the Board") adopted Ordinance No. 92-33 ("the Ordinance"), subsequently codified at § 26-26 of the Orange County Code ("OCC"), entitled "Offenses Involving Public Peace and Order, Public Nudity." The Ordinance bans public nudity, subject to certain exemptions. The term "nude" means
to display or expose the male or female genitals, public area, or the female breast with less than a fully opaque covering of any part of the areola and nipple, or the showing of the covered male genitals in a discernibly turgid state....
OCC § 26-26(d)(2). A "public place" includes, but is not limited to
a street, sidewalk, park, beach, business or commercial establishment (whether for profit or not for profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement), bottle club, hotel, motel, restaurant, night club, country club, cabaret, or meeting facility utilized by a religious, social, fraternal or similar organization.
Under the Ordinance, persons may appear nude in the following circumstances:
(1) When a person appears nude in a public place provided or set apart for nudity....;1 or
(2) When the conduct of being nude cannot constitutionally be prohibited by this section because it constitutes part of a bona fide live communication, demonstration or performance by such person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression, and is not a guise or pretense utilized to exploit nudity for profit or commercial gain ....; or
(3) When the conduct of being nude cannot constitutionally be prohibited by this section because it is otherwise protected by the United States Constitution or Florida Constitution.
OCC § 26-26(f)(1)(2) & (3) (footnote added).
Gatena has never been arrested for violating the Ordinance. However, since the Ordinance's passage, she has ceased dancing nude. Gatena asserts that the Ordinance prevents her from fulfilling her desire to perform nude in an adult setting or in a non-adult venue in a play or skit. [Gatena Depo. at 77.]2 Gatena contends that the Ordinance's "bona fide live communication" exemption is vague and unclear. As a result, Gatena fears that she may be subject to prosecution for engaging in nude performances which she deems to be constitutionally protected. Id. at 79, 86-88.
A motion for summary judgment should be granted when "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 party seeking summary judgment bears the initial burden of identifying for the district court those portions of the record `which it believes demonstrate the absence of a genuine issue of material fact.'" Cohen v. United American Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir.1996) (quoting Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1396, modified on other grounds, 30 F.3d 1347 (11th Cir. 1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995)). "There is no genuine issue for trial unless the non-moving party establishes, through the record presented to the court, that it is able to prove evidence sufficient for a jury to return a verdict in its favor." Cohen, 83 F.3d at 1349. The Court considers the evidence and all inferences drawn therefrom in the light most favorable to the non-moving party. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir.1993), reh'g and reh'g en banc denied, 16 F.3d 1233 (11th Cir.1994).
Gatena raises three separate claims in her complaint seeking a declaratory judgment and permanent injunction prohibiting the County and its agents from enforcing the Ordinance. First, Gatena claims that facially and as applied, the Ordinance is content or viewpoint based in violation of the First and Fourteenth Amendments to the United States Constitution. Second, Gatena argues that the Ordinance is unconstitutionally vague3 (both facially and as applied) in violation of the First, Fifth, and Fourteenth Amendments to the Constitution. Finally, Gatena argues that the Ordinance's exemptions for certain types of nudity are arbitrary and capricious. The County defends the Ordinance's constitutionality. Additionally, the County preliminarily raises various justiciability issues, including whether Gatena has standing to bring her claims and whether her claims are ripe for review.
As a threshold matter, the County challenges whether Gatena's claims are justiciable. Specifically, the County argues that Gatena's as-applied challenge to the Ordinance is not ripe for review and that Gatena lacks standing to bring overbreadth4 and vagueness challenges (both facial and as applied). The County focuses its justiciability arguments on Gatena's ability to challenge the exemptions listed in § 26-26(f) of the Ordinance. In so doing, the County misapprehends the gist of Gatena's claims.
Gatena challenges not only the language contained in the exemption, but the Ordinance as a whole. Gatena complains that "[f]acially and as applied, the ordinance is content or viewpoint based rather than content or viewpoint neutral in violation of the First and Fourteenth Amendments ...." See Pl.'s Compl. at 4 (emphasis omitted). Gatena further states that "[u]nless the court prevents the enforcement of the ordinance, [she] will be denied her constitutional right to dance nude — both for herself as well as her admirers and patrons." Id. She further argues in her motion for summary judgment that [Pl.'s Mot. Summ. J. at 8.] In analyzing whether Gatena has standing to bring facial and as-applied challenges, the Court considers Gatena's objection to the validity of the entire Ordinance. See National Advertising v. City of Fort Lauderdale, 934 F.2d 283 (11th Cir.1991).
The Supreme Court has articulated three constitutional standing requirements: injury, causation, and redressability. See Northeastern Florida Contractors v. Jacksonville, 508 U.S. 656, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Gatena meets these three requirements. The Ordinance's ban on public nudity clearly covers persons employed as nude dancers in the adult entertainment industry. Gatena wishes to dance nude (in a non-obscene manner) as a form of public entertainment within the Orange County adult entertainment industry. See Pl.'s Compl. at 2. Gatena wants to continue in her chosen profession (nude erotic dancer), expand her livelihood, and promote the "important message of sexuality and eroticism." Id. The ban on nudity prevents Gatena from doing so, lest she face prosecution. Accordingly, the County's conduct in passing the Ordinance has injured Gatena. Such an injury could be redressed if Gatena obtains a favorable federal court decision, that is, if the Court were to find the entire Ordinance, including the exemption language, unconstitutional.
The County argues that Gatena lacks standing because she has not been arrested or threatened with prosecution under the Ordinance. However, Gatena's interest in engaging in the Ordinance's prohibited conduct can establish standing even though the threat of enforcement arises from the very existence of the statute. See Leverett v. City of Pinellas Park, 775 F.2d 1536, 1539 (11th Cir.1985) (citing Hardwick v. Bowers, 760 F.2d 1202, 1206 (11th Cir.1985)). Moreover, "[a] court can be most certain that a constitutional challenge grows out of a genuine dispute where the allegedly unconstitutional statute interferes with the way the plaintiff would normally conduct his or her affairs." See id. at 1539 (citation omitted); see also Florida League of Professional Lobbyists v. Meggs, 87 F.3d 457, 459 (11th Cir.1996); Cannabis Action Network v. City of Jacksonville Beach, 20 F.Supp.2d 1317, 1322-1323 (M.D.Fla.1998). It is undisputed that the Ordinance interferes with Gatena's desire to dance in the nude. Thus, the Court finds that Gatena has standing to pursue her claims.
Additionally, Gatena's claims are ripe for review. The ripeness doctrine protects federal courts from engaging in speculation or wasting their resources through the...
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