Geaneas v. Willets

• Decision Date: 15 March 1989
• Docket Number: No. 83-344-CIV-ORL-19.,83-344-CIV-ORL-19.
• Citation: 715 F. Supp. 334
• Parties: Chris GEANEAS, etc., et al., Plaintiffs, v. Charles W. WILLETS, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

715 F. Supp. 334

Chris GEANEAS, etc., et al., Plaintiffs, v. Charles W. WILLETS, et al., Defendants.

No. 83-344-CIV-ORL-19.

United States District Court, M.D. Florida, Orlando Division.

March 15, 1989.

Eric A. Latinsky, Daytona Beach, Fla., for plaintiffs.

Frank B. Gummey, III, and Reginald E. Moore, Daytona Beach, Fla., for defendants.

ORDER

FAWSETT, District Judge.

This case was presented to the Court sitting as jury for trial on February 22, 23 and 28, 1989.¹ In its previous Order dated January 12, 1988, this Court determined that Daytona Beach Ordinance 81-334, codified as City of Daytona Beach Code Section 5-25, is not unconstitutional on its face. As to the contention of vagueness, however, the Court at that time focused primarily on the provisions of the Ordinance dealing with exposure of the female breast, as the parties had stated that they were not then in contention concerning the provision of the Ordinance prohibiting exposure of buttocks. However, the Plaintiffs now claim that the City has revived its enforcement of the buttocks portion of the Ordinance, and therefore this additional issue has been presented to this Court.

This Order is limited to determination of two issues: (1) whether the portion of the Ordinance prohibiting exposure of buttocks is unconstitutionally vague; and (2) whether the Ordinance has been selectively enforced against the Plaintiffs.

STATEMENT OF THE FACTS

Effective October 21, 1981, the City of Daytona Beach enacted City Code Section 5-25 (Daytona Beach Ordinance No. 81-334), which provides in pertinent part:

"(a) No person shall expose to public view his or her genitals, pubic area, vulva, anus, anal cleft or cleavage or buttocks or any simulation thereof in an establishment dealing in alcoholic beverages.

(b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages."

The Ordinance also prohibits persons maintaining, owning, or operating an establishment dealing in alcoholic beverages from suffering or permitting such conduct. The practical result of this enactment was to create a clash between those responsible for enforcing the laws of the City and the owners and employees of the then "topless go go" establishments located within the city.

Partly because of the social context in which this Ordinance was enacted, there was a period of uncertainty as to the meaning of the prohibitions contained in the enactment. On May 22, 1982 Leslie Grier, now Hamlin, was arrested for performing an exotic dance during which a portion of her buttocks was exposed. The charges were dismissed pursuant to an order of the state County Court Judge Josephson dated April 23, 1982 in which it was determined that the entire buttocks must be exposed before a violation of the Ordinance occurred. On October 2, 1982 Ms. Grier-Hamlin was again arrested for exposure of a portion of her breast below the areola and for exposure of her buttocks during a performance in one of the Plaintiffs' establishments. On April 21, 1983 state County Court Judge McDermott dismissed the charges, ruling that the prohibition against exposure of the female breast in the Ordinance was overly broad and the prohibition against exposure of buttocks required the entire buttocks to be exposed to constitute a violation.

On October 8, 1982 Denise Carol Del Pinto, now Ferraro, was arrested and charged with violating this Ordinance, and on August 14, 1982 Donna Michelle Boido, now Heiser, a bartender, was arrested as a person in charge of one of the Plaintiff establishments when a violation of the Ordinance occurred. Further, in November of 1982, Mr. Leonard Paul Del Percio, principal shareholder and owner of the Shingle Shack and the Function Junction, removed photographs from the walls of his establishments and ceased a sale of calendars featuring pictures of his exotic dancers pursuant to direction of officers of the City of Daytona Beach Police Department under authority of the Ordinance.

Other arrests followed and led to contradictory orders of the state courts as to the meaning of the Ordinance and the conduct which was prohibited.² On March 29, 1984 the Florida Fifth District Court of Appeal determined that the Ordinance was "vague, overbroad, not fairly enforceable, and thus unconstitutional." Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla. 5th DCA 1984). Thereafter, the Supreme Court of Florida issued its opinion on August 30, 1985 upholding the constitutionality of the Ordinance and determining that exposure of the female breast below a line drawn across the top of the areolas was prohibited conduct. City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985).

More recently, exotic dancers in the Plaintiffs' establishments have been arrested for exposure of their buttocks while wearing t-straps, making the provision of the Ordinance prohibiting exposure of buttocks in establishments dealing in alcoholic beverages an issue properly presented for determination by this Court.

With one exception, the evidence reflects that the City of Daytona Beach police enforce the Ordinance only against employees of establishments dealing in alcoholic beverages which also feature exotic dancing as entertainment for their patrons, although the officers acknowledged that the Ordinance could be enforced in other areas of the City.³ Both former Police Chief Willits and present Police Chief Crow testified that there was no policy precluding enforcement of the Ordinance in pool bars and other establishments dealing in alcoholic beverages in addition to its enforcement in the establishments affording exotic dance as entertainment. The officers also testified that Ordinance 29-5, prohibiting exposure of the areola of the female breast, was the ordinance of choice enforced in other commercial establishments dealing in alcoholic beverages, excluding the exotic dance bars.

The evidence was undisputed that in commercial establishments dealing in alcohol, excluding such establishments which provided exotic dance as entertainment, portions of the female breast below the areola and portions of the buttocks were exposed without arrests being made, even though the violations were known to Daytona Beach police officers who were present at the time. These violations of the Ordinance were more prevalent during "bike week" and "spring break", when wet t-shirt contests and bikini contests at the pool-side bars along the city's famous beach resulted in numerous technical violations of the Ordinance, with an estimated fifty percent or more of the females present at these events wearing bathing suits exposing a portion of the buttocks.

No malice, bad faith, or racial or religious discrimination attributable to Defendants was shown by the evidence. Defendants explain their enforcement of the Ordinance only in the nonresidential establishments dealing in alcoholic beverages which also afford exotic dancing as entertainment on the grounds, inter alia, (1) that such establishments and their employees have knowledge of the Ordinance whereas tourists and other persons present at other commercial establishments dealing in alcoholic beverages do not; (2) that the police department is aware of a history of flagrant and consistent violations of the Ordinance occurring in commercial establishments dealing in alcoholic beverages which also offer exotic dancing as entertainment; (3) that the manpower constraints of a police force numbering two hundred and ten officers for a city of sixty-two thousand regular inhabitants, which number swells to between three and seven hundred thousand during spring break, bike week and other special events, make it impossible to cause an arrest for every violation of the Ordinance; and (4) that the police officers, exercising their discretion, choose not to enforce the Ordinance at certain crowded and raucous events where there is, in their view, a significant risk that such enforcement would cause danger to the safety of the officers and/or the public.

The police officers who were questioned on the subject testified that if any part of the buttocks were exposed in a nonresidential establishment dealing in alcoholic beverages, an arrest could be made for a technical violation of the Ordinance, and that it was left to each officer's discretion as to how much of the buttocks must be exposed before an arrest under the Ordinance would be made. While all agreed that the arrests actually made under the Ordinance were only for "flagrant" or "obvious" violations, the officers differed in their opinions as to what constituted a "flagrant" or "obvious" violation.

At the conclusion of the trial the Court questioned the parties, indicated the Court's preliminary and tentative views, allowed the parties to present further argument to rebut or strengthen the Court's initial analysis, and requested that the parties submit to the Court any additional law supporting their respective positions. Upon further reflection and consideration of the evidence, the arguments, and the authorities presented by the parties, the Court rules as follows.

I. Facial Constitutionality of Provision Prohibiting Exposure of Buttocks

The Court agrees with Plaintiffs that the portion of this Ordinance prohibiting exposure of buttocks is somewhat vague. First, the Ordinance does not specify whether the entire buttocks, or what portion thereof, must be covered. Secondly, the Ordinance does not define the word "buttocks," and this term is not easily reduced to precise definition. The Court finds that the buttocks provision is not unconstitutionally vague, however.

The Ordinance is not "impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).⁴ There is no question that the Daytona Beach Ordinance would prohibit...