Giovani Carandola, Limited v. Fox
| Decision Date | 15 December 2006 |
| Docket Number | No. 06-1040.,No. 05-2308.,05-2308.,06-1040. |
| Citation | 470 F.3d 1074 |
| Parties | GIOVANI CARANDOLA, LIMITED; North Carolina Golf and Travel Incorporated, d/b/a Pure Gold of Southern Pines, a North Carolina Corporation, Plaintiffs-Appellees, v. Douglas A. FOX, in his official capacity as Chairman of the North Carolina Alcoholic Beverage Control Commission; Mike A. Joyner, in his official capacity as Member of the North Carolina Alcoholic Beverage Control Commission; Ricky Wright, in his official capacity as Member of the North Carolina Alcoholic Beverage Control Commission; Bryan E. Beatty, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety, Defendants-Appellants. Giovani Carandola, Limited; North Carolina Golf and Travel Incorporated, d/b/a Pure Gold of Southern Pines, Plaintiffs-Appellants, v. Ricky Wright, in his official capacity as Member of the North Carolina Alcoholic Beverage Control Commission; Bryan Beatty, in his official capacity as Secretary of the North Carolina Department of Crime Control and Public Safety; Douglas A. Fox, in his official capacity as Chairman of the North Carolina Alcoholic Beverage Control Commission; Mike A. Joyner, in his official capacity as Member of the North Carolina Alcoholic Beverage Control Commission, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Christopher G. Browning, Jr., Solicitor General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellants/Cross-Appellees. J. Michael Murray, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellees/Cross-Appellants.
ON BRIEF:
Roy Cooper, North Carolina Attorney General, John Foster Maddrey, North Carolina Assistant Solicitor General, John Julian Aldridge, III, Special Deputy Attorney General, North Carolina Department Of Justice, Raleigh, North Carolina, for Appellants/Cross-Appellees. Steven D. Shafron, Berkman, Gordon, Murray & Devan, Cleveland, Ohio, for Appellees/Cross-Appellants.
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed in part, reversed in part, and vacated in part by published opinion. Judge MOTZ wrote the opinion, in which Judge NIEMEYER and Judge TRAXLER joined.
The North Carolina Alcoholic Beverage Control Commission appeals to this court a second time. The Commission once again seeks relief from an order enjoining enforcement of a state statute regulating conduct on premises licensed by the Commission to serve alcohol. In the first appeal, we affirmed in relevant part an order that, in response to a challenge by Giovani Carandola, Ltd., preliminarily enjoined a predecessor statute. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir.2002) ("Carandola I"). The North Carolina legislature then enacted a new statute. After Carandola, joined by additional plaintiffs, challenged that statute, the district court permanently enjoined the enforcement of its prohibitions on simulated sexual acts and fondling of sexual organs, finding these provisions vague and overbroad in violation of the First and Fourteenth Amendments; the court, however, refused to enjoin a prohibition on nudity, holding that it did not violate the Constitution. See Giovani Carandola, Ltd. v. Fox, 396 F.Supp.2d 630 (M.D.N.C. 2005) ("Carandola II"). The Commission appeals and Carandola cross-appeals. For the reasons stated herein, we affirm in part, reverse in part, and vacate in part.
Carandola operates Christie's Cabaret, an erotic dancing establishment in Greensboro, North Carolina, which holds Commission permits to sell alcoholic beverages. On November 11, 2000, a Commission enforcement officer witnessed erotic dancers at Christie's performing in a manner that violated then-applicable state law. See N.C. Gen.Stat. § 18B-1005 (1995) and 4 N.C. Admin. Code 2S.0216 (2002).1 When Christie's received a violation notice, Carandola filed suit, alleging that the statute and regulation violated its First Amendment rights. The district court held a hearing at which the officer who cited Christie's testified that general conduct violating the statute and regulation included touching one's own fully clothed buttocks, breasts, or genitals while in a licensed establishment. After the hearing, the district court preliminarily enjoined enforcement of the statute and the regulation on the ground that Carandola would likely prevail on an overbreadth challenge.
In Carandola I, we affirmed in relevant part, concluding that the statutory and regulatory restrictions swept "far beyond bars and nude dancing establishments." 303 F.3d at 516. We noted that the Commission itself conceded that "the plain language of the restrictions prohibits on licensed premises any entertainment that `simulate[s]' sexual behavior, even if performers are fully clothed or covered, and even if the conduct is integral to the production—for example, a political satire, a Shakespeare play depicting young love, or a drama depicting the horrors of rape." Id. (alteration in original). After careful review of the Commission's interpretation of the challenged restrictions, we also determined that the restrictions were not "readily susceptible" to a limiting construction: indeed, the Commission did "not even suggest a possible limiting construction." Id. at 517. Accordingly, we held that the district court "did not abuse its discretion in finding that Carandola would likely prevail on its overbreadth challenge" and thus granting a preliminary injunction. Id. at 520.
In response to our ruling, the North Carolina General Assembly enacted a new statute, N.C. Gen.Stat. § 18B-1005.1 (2005), which provides:
(a) It shall be unlawful for a permittee or his agent or employee to knowingly allow or engage in any of the following kinds of conduct on his licensed premises:
(1) Any conduct or entertainment by any person whose genitals are exposed or who is wearing transparent clothing that reveals the genitals;
(2) Any conduct or entertainment that includes or simulates sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any act that includes or simulates the penetration, however slight, by any object into the genital or anal opening of a person's body; or
(3) Any conduct or entertainment that includes the fondling of the breasts, buttocks, anus, vulva, or genitals.
(b) Supervision.—It shall be unlawful for a permittee to fail to superintend in person or through a manager the business for which a permit is issued.
(c) Exception.—This section does not apply to persons operating theaters, concerts halls, art centers, museums, or similar establishments that are primarily devoted to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value.
The Commission then sought to vacate as moot the preliminary injunction of the old statute. Although the Commission had not yet enforced the new statute, Carandola (joined by several additional plaintiffs) challenged the new statute, claiming that it too violated both the First and Fourteenth Amendments. At a bench trial concerning the validity of the new statute, Dr. Judith Hanna, an anthropologist who specializes in the non-verbal communication of dance, testified on behalf of Carandola that "movements in dance such as those with the hips, thighs, breasts, hair, and hands have traditionally been associated with simulating sex." Carandola II, 396 F.Supp.2d at 653. The district court also considered testimony about whether sexually oriented businesses create negative secondary effects. Without resolving this question, the district court held that the Commission had produced sufficient evidence to support the legislative conclusion that sexually oriented businesses were associated with higher incidents of crime. Id. at 651.
The district court then issued a detailed opinion in which it upheld subsection 18B-1005.1(a)(1), concluding that the prohibition on nudity furthered North Carolina's interest in reducing negative secondary effects associated with the combination of adult entertainment and alcohol. Id. at 652. However, the court enjoined the enforcement of subsections (a)(2) and (a)(3), finding them both facially vague and overbroad, and unconstitutional as applied to Carandola. Id. at 655, 663. The Commission appeals the district court's determinations that subsections (a)(2) and (a)(3) are facially vague and overbroad, and unconstitutional as applied to Carandola. Carandola cross appeals, arguing that the court should have enjoined subsection (a)(1) of the statute, which prohibits nudity in licensed establishments. We consider first the Commission's appeal, then Carandola's cross-appeal.
The Commission contends that the district court erred in holding the new statute facially vague and facially overbroad. We review the district court's legal conclusions de novo. North Carolina v. City of Virginia Beach, 951 F.2d 596, 601 (4th Cir. 1992).
The Commission initially argues that subsections (a)(2) and (a)(3) are not vague. A statute is impermissibly vague if it either (1) "fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or (2) "authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). In particular, a court must ask whether the statutory prohibitions "are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)(quoting U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 579, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973)).
The district court invalidated subsection (a)(2)—prohibiting...
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