Geaneas v. Willets, 89-3308
| Decision Date | 10 September 1990 |
| Docket Number | No. 89-3308,89-3308 |
| Citation | 911 F.2d 579 |
| Parties | Chris GEANEAS, Pink Pussycat, Inc., d/b/a Red Garter Club, Del Percio, Inc., d/b/a Shingle Shack, Function Junction, Inc., Dawn Boido, Denise Del Pinto, Leslie Grier, Plaintiffs-Appellants, Kinzey Enterprises, Inc., d/b/a Oyster Pub, Linnie Shiftlett, Lois Young, Plaintiffs, v. Charles W. WILLETS, The City of Daytona Beach, Defendants-Appellees, John M. Power, Lawrence Kelly, Defendants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Eric A. Latinsky, Daytona Beach, Fla., for plaintiffs-appellants.
Reginald E. Moore, Frank B. Gummey, III, Robert G. Brown, Marie Hartman, Daytona Beach, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before TJOFLAT, Chief Judge, TUTTLE, and RONEY *, Senior Circuit Judges.
The plaintiffs in this case own or manage bars providing nude dancing, or work in those establishments as nude dancers or bartenders. They brought suit in federal district court under 42 U.S.C. Sec. 1983 (1988) claiming that a Daytona Beach ordinance, which prohibits exposure of certain body parts in establishments dealing in alcohol, violated their rights under the first and fourteenth amendments. The district court granted partial summary judgment for the defendants and, following a bench trial on the remaining issues, dismissed the plaintiffs' case. The plaintiffs appeal, and we affirm. We also hold that the plaintiffs' appeal is frivolous under Rule 38, Fed.R.App.P. 38.
In 1981, the City of Daytona Beach enacted an ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic beverages. 1 Daytona Beach police then began enforcing the ordinance. They arrested dancers, including two plaintiffs in this case, at several "topless bars" for dancing partially nude in violation of the ordinance. They arrested bartenders and managers, including plaintiffs in this case, who were working at establishments when nude-dancing arrests were made. They cited owners, including plaintiffs in this case, for permitting nude dancing in their establishments, and they ordered the owner of one establishment, a plaintiff here as well, to remove graphic photographs from his walls and to stop selling calendars featuring pictures of his exotic dancers.
In the prosecutions that followed, the state courts issued various interpretations of the ordinance. In the case of one of the dancers involved in the present action, the county court dismissed the charges against her, 2 holding that the ordinance's prohibition of exposed female breasts was overbroad and that the ordinance proscribed exposure of only the entire buttocks, and nothing less. In 1984, the state district court of appeal held the ordinance unconstitutional on grounds of vagueness and overbreadth. See Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla.Dist.Ct.App.1984). A year later, the Florida Supreme Court reversed that court and upheld the ordinance as constitutional. See City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla.1985). The supreme court's decision in Del Percio, however, specifically addressed only the ordinance's prohibition on exposed breasts, which it defined as exposure of the breast below an imaginary line drawn across the top of the areolae. See id. at 200. The decision did not define the ordinance's prohibition on exposed buttocks.
In May 1983, the plaintiffs filed this section 1983 suit in federal district court. They claimed that the ordinance violated their right of free expression under the first amendment, incorporated under the fourteenth amendment, and their rights to due process and equal protection of the law under the fourteenth amendment. Specifically, the plaintiffs claimed that the ordinance was overbroad and void for vagueness under the first amendment and that the City had selectively enforced the ordinance against "topless bars" in violation of the fourteenth amendment. The plaintiffs requested a declaratory judgment, injunctive relief, and damages.
On the defendant's motion for partial summary judgment, the district court held that the ordinance was constitutionally valid on its face. In the court's view, the ordinance was a valid exercise of the state's broad authority to regulate alcohol sales under the twenty-first amendment, and, in light of the Florida Supreme Court's decision in Del Percio, the ordinance was not unconstitutionally broad. The district court, however, like the Florida Supreme Court in Del Percio, addressed only the ordinance's proscription on exposed breasts. The district court also denied summary judgment on the defendant's affirmative defense that the Del Percio decision rendered the present case res judicata. 3 3]
The case then went to trial before the court on the remaining claims. The court held that, although the plaintiffs had proved they were singled out for prosecution, they had not shown that this prosecution was invidious or conducted in bad faith. The court thus denied their claim. In addition, the court upheld the constitutionality of the ordinance's prohibition on exposed buttocks, rejecting the plaintiff's contention that the provision was impermissibly vague. The district court, therefore, dismissed the plaintiffs' case. 715 F.Supp. 334.
On appeal, the plaintiffs attack the district court's decision on four grounds: they claim that (1) the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment; (2) the court erred in denying the plaintiffs' claim that the ordinance's provisions were overbroad; (3) the court erred in denying the plaintiffs' void-for-vagueness claim; and (4) the court erred in denying the plaintiffs' selective enforcement claim. We hold that the plaintiffs' claims entirely lack merit. In addition, because the plaintiffs' contentions are no more than conclusory assertions, unsupported by argument or reason, we hold that this appeal is frivolous under Rule 38, and instruct the district court to award the appellee double costs and attorneys' fees for this appeal.
The plaintiffs claim that the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment. 4 Under the Florida Supreme Court's decision in Del Percio and existing United States Supreme Court and Eleventh Circuit precedent, this argument is clearly foreclosed.
In Del Percio, the court held that, as a matter of state law, "Florida municipalities ... have the authority to exercise the regulatory power of the twenty-first amendment recognized in New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981)." 476 So.2d at 201. In Bellanca, the Supreme Court held that, although nude dancing implicates the first amendment, the states' broad powers under the twenty-first amendment to regulate alcohol outweigh any first amendment interest in nude dancing. 452 U.S. at 717, 101 S.Ct. at 2601 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975)); see City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 95-96, 107 S.Ct. 383, 385, 93 L.Ed.2d 334 (1986); Jorgenson v. County of Volusia, 846 F.2d 1350, 1351 (11th Cir.1988); Lanier v. City of Newton, Ala., 842 F.2d 253, 255 (11th Cir.1988); Fillingim v. Boone, 835 F.2d 1389, 1394 (11th Cir.1988); Del Percio, 476 So.2d at 201. Following this established precedent, the district court in the present case properly analyzed the ordinance under the twenty-first amendment and properly upheld it as a valid exercise of the City's broad twenty-first amendment powers.
The plaintiffs, moreover, fail directly to join issue with this precedent. Rather, they attempt to skirt this authority by observing that the City Code broadly defines the term "establishment dealing in alcoholic beverages," see supra note 1. The plaintiffs contend that, whereas the ordinances in Bellanca and its progeny regulated only establishments licensed to sell liquor, the ordinance in the present case is not limited to establishments licensed to sell alcohol but also applies to unlicensed establishments that permit alcohol consumption. Consequently, they argue, the ordinance is an exercise of the City's general police powers, which must be analyzed under the first amendment rather than under the twenty-first amendment.
The plaintiffs, however, provide no legal support for this argument, and they fail to address the string of Eleventh Circuit cases that have expressly analyzed virtually identical ordinances under the twenty-first amendment. The plaintiffs rely on this court's decision in Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir.1985), a case that invalidated under the first amendment an ordinance prohibiting nude dancing in "any 'commercial establishment,' " id. at 1540 n. 2. Although the ordinance in the present case is not limited to licensed establishments like the ordinance in Bellanca, neither does it apply to any commercial establishment like the ordinance in Leverett. Rather, the ordinance here falls in between these other two categories of regulation: it applies to establishments dealing in alcoholic beverages, and although such establishments are not necessarily licensed to sell alcohol, they must deal in alcoholic beverages. The regulation here thus has a definite nexus to alcohol.
Not only is Leverett factually inapplicable to the present case--a problem that the plaintiffs never address--but, in addition, a string of cases in this circuit has clearly foreclosed the plaintiffs' argument. The court in these cases has analyzed this intermediate category of regulation under the twenty-first amendment, distinguished Leverett, and held that the regulation of protected expression by such an ordinance is incidental to the regulation of alcohol. See, e.g., Lanier, 842 F.2d at 256-57 (...
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