Heideman v. South Salt Lake City, No. 02-4030.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMcConnell
Citation348 F.3d 1182
PartiesFlona M. HEIDEMAN; Mariea M. Berryman; Crystal Dieringer; Heather R. Liljenquist; Jennifer Goff; Amber Blanke; Stacy Lamb; Bobbie Gleason; Amy Woods; Janeen Bickerstaff, Plaintiffs — Appellants, v. SOUTH SALT LAKE CITY, A Utah Municipal Corporation, Defendant — Appellee.
Docket NumberNo. 02-4030.
Decision Date04 November 2003
348 F.3d 1182
Flona M. HEIDEMAN; Mariea M. Berryman; Crystal Dieringer; Heather R. Liljenquist; Jennifer Goff; Amber Blanke; Stacy Lamb; Bobbie Gleason; Amy Woods; Janeen Bickerstaff, Plaintiffs — Appellants,
v.
SOUTH SALT LAKE CITY, A Utah Municipal Corporation, Defendant — Appellee.
No. 02-4030.
United States Court of Appeals, Tenth Circuit.
November 4, 2003.

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COPYRIGHT MATERIAL OMITTED

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W. Andrew McCullough, McCullough & Associates, LLC, Midvale, UT, for Plaintiffs-Appellants.

Scott D. Berghthold, Law Office of Scott D. Berghthold, P.L.L.C., Scottsdale, AZ (and David M. Carlson and Janice Frost, South Salt Lake, UT, with him on the briefs), for Defendant-Appellee.

Before LUCERO, HARTZ and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.


South Salt Lake City is a municipality of some 9,800 people, located immediately south of Utah's capital. The City's main artery, State Street or U.S. Highway 89, was the primary north-south highway in the area prior to construction of Interstate-15. State Street is the locus of a virtually uninterrupted string of gas stations, retail outlets, fast food restaurants, pawn shops, used car dealerships, old-fashioned drive-up motels, and the like; much of the City is occupied by light industry and the remaining area by modest single-family residences and apartments. The City's Chamber of Commerce touts the municipality as "Utah's Center of Industry."1 Almost hidden among the warehouses and workshops of light industrial South Salt Lake City are — or were — three establishments featuring nude dancing.

The City Council recently enacted an ordinance prohibiting nudity within sexually oriented businesses. South Salt Lake City, Utah, Ordinance No.2001-04 (the "Ordinance") (effective May 7, 2001) (codified as South Salt Lake City, Utah, Code, ch. 5.56 (the "Code")). Under the Ordinance, dancers at the establishments mentioned above may no longer drop the last stitch. Id. § 5.56.3100. The Plaintiffs-Appellants in this case, female dancers who object to the requirement of wearing "G-strings" and "pasties" during their performances, brought suit to enjoin the enforcement of the Ordinance, and filed a motion for a preliminary injunction in district court.

The district court denied their request for a preliminary injunction, commenting:

The specific proposition stated by Plaintiffs, that nude dancing is a protected form of expression not subject to any limitation, has not been passed upon by the 10th Circuit Court of Appeals. It is this Court's opinion that if and when they consider this proposition, the modest limitations imposed by the ordinance will not be considered a burden on expression of erotic dancing in a sexually oriented business.

Order Upon Pls.' Mot. for Prelim. Inj. and Def.'s Mot. to Dismiss ("Order"), at 2 (Jan. 29, 2002), App. at 191. In response to a question from Plaintiffs' counsel regarding what issues would be open in the litigation on the merits, the district court declined to provide guidance beyond what was said in the ruling on the preliminary injunction.

The district court's reluctance to elaborate the law applicable to nude dancing is understandable. Twice in the past fifteen years, the United States Supreme Court has considered the constitutionality of ordinances banning commercial nude dancing under the Free Speech Clause, and both times the Court produced fractured decisions with no majority opinion and no clear statement of controlling doctrine.

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See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). This is because, as discussed below, it is far from clear how prohibitions of nude dancing "fit" within the conceptual structure of First Amendment law.2 Despite the theoretical uncertainties, however, the results themselves in these cases have been consistent: the practitioners of nude dancing have lost and the ordinances have been upheld.

In their briefs and arguments in this Court, the Plaintiffs devote much of their attention to issues beyond the propriety of the denial of a preliminary injunction. In particular, they argue that they are entitled to trial on certain of their claims, which the Defendants stoutly deny. The procedural posture of this case, however, is not a direct challenge to the Ordinance or even a motion for summary judgment. It is an appeal from the district court's denial of a preliminary injunction against enforcement of the Ordinance. Our appellate review is limited by this posture. See, e.g., Hawkins v. City & County of Denver, 170 F.3d 1281, 1292 (10th Cir.1999) (emphasizing narrow scope of appellate review of denial of a motion for preliminary injunction); Southwest Voter Reg. Educ. Project v. Shelley, 344 F.3d 914, 917-18 (9th Cir. 2003) (en banc) (noting that appellate review of the denial of a preliminary injunction is "limited and deferential"). The proper means for testing whether a trial is required is for one or both parties to move for summary judgment or judgment on the pleadings. No such motion has been made. The issue before us is simply whether the district court abused its discretion in denying a motion for preliminary relief on this record. The answer to that question is no.

Background

Under South Salt Lake City's prior Sexually Oriented Business Ordinance, originally enacted in February, 1991, commercial nude dancing was permitted, subject to regulation and licensing. The three establishments at which Plaintiffs work, or wish to work, provided nude entertainment for more than ten years under this licensing scheme. Around 1999, the City Council became concerned about what are called "negative secondary effects" — such as crime, prostitution, and lowered property values — thought to be associated with sexually oriented businesses. For approximately a year, City officials gathered police reports and studies from around the country regarding the connection between sexually oriented commercial business and these secondary effects.

The Ordinance was amended on January 10, 1996, and, after the studies, again on May 2, 2001. As currently formulated, the Ordinance forbids employees of such businesses3 to "[a]ppear in a state of nudity before a patron on the premises of a sexually oriented business." Code § 5.56.310, 310(G).4 The Ordinance also forbids patrons

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of these establishments to "[a]ppear in a state of nudity before another person on the premises of a sexually oriented business." Code § 5.56.320, 320(C). The Ordinance continues to permit semi-nude commercial dancing; dancers may perform wearing "pasties" and "G-strings." Plaintiffs maintain that these new restrictions violate their freedom of expression under the First Amendment, as applied to state and local governments through the Fourteenth Amendment.

Plaintiffs originally filed this action in the Third Judicial District Court for Salt Lake County, Utah. It was removed to federal district court on May 7, 2001. In their Complaint, filed April 30, 2001, and by motion, Plaintiffs requested a temporary restraining order and preliminary injunction against the enforcement of the Ordinance. The City filed a motion to dismiss on the pleadings.

The City argued that the Ordinance is justified by the City's interest in curtailing what it found to be the negative secondary effects of establishments featuring totally nude dancing. The targeted secondary effects the City identified included: venereal disease, prostitution, general poor sanitation, criminality, and offenses against minors, among others. See Preamble to Ordinance; Ordinance, "Purpose and Findings," (1)-(25). The City based its findings and conclusions on a number of sources cited in the Ordinance, including findings incorporated in decisions of the Supreme Court and this Court, as well as numerous other studies and statistics from the City police department and other municipalities.5

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The district court held a hearing on January 3, 2002, on the Plaintiffs' motion for preliminary injunctive relief and the City's motion to dismiss. The only evidence before the district court at the time of the hearing was the Ordinance itself, the preamble of which contained citations to the studies and reports on which the City relied, and affidavits and testimony of four of the Plaintiffs regarding their perceptions of future economic harm that they would suffer absent an injunction. Although the nude dancing establishments, represented by Plaintiffs' counsel, had presented certain contrary studies and evidence to the City Council during its deliberations, Plaintiffs did not submit this or any other evidence contrary to the City's findings to the district court for consideration on their motion for a preliminary injunction.

In denying both motions from the bench, the district court observed:

I'll deny the motion for a preliminary injunction....

It would appear to me that the modest effort at limitations provided by the ordinance as enacted by South Salt Lake City requiring the use of G strings and pasties in no way in my opinion limits expression. It would appear to me that expression allowed is at the outer limits that counsel has referred to and that the modest requirements set forth in the ordinance as to semi-nude vers[u]s nude is an appropriate exercise of municipal power.

I think that the issue presented, I hate to say the naked proposition but the specific proposition asserted by counsel for plaintiffs does indeed present an interesting question. That specific proposition as far as I know has never been passed on by the Tenth Circuit but my opinion is that if and when they consider it that the modest limitations imposed by the ordinance will not be considered a burden on expression of erotic dancing in a sexually oriented business establishment.

It would appear to me that the justification set forth in the ordinance as to the...

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  • N. Arapaho Tribe v. Burwell, Case No. 14–CV–247–SWS.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • February 26, 2015
    ...movant seeks to stay governmental action taken pursuant to a statutory or regulatory scheme.However, in Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir.2003), we held that “[w]here ... a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to......
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 17, 2020
    ...court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lak......
  • Courthouse News Serv. v. N.M. Admin. Office of Courts, CIV 21-0710 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 8, 2021
    ...holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits.” Heideman v. S. Salt 2 Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, “[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake Ci......
  • ASS'N OF PEOPLE WITH DISABILITIES v. Herrera, No. CIV 08-0702 JB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 5, 2010
    ...rights, the protection against restrictions on First-Amendment rights would be weakened. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 (10th Cir.2003) ("The burden of proof is on the government to `demonstrate that the recited harms are real, not merely conjectural, and that the re......
  • Request a trial to view additional results
624 cases
  • N. Arapaho Tribe v. Burwell, Case No. 14–CV–247–SWS.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • February 26, 2015
    ...movant seeks to stay governmental action taken pursuant to a statutory or regulatory scheme.However, in Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir.2003), we held that “[w]here ... a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to......
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 17, 2020
    ...court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lak......
  • Courthouse News Serv. v. N.M. Admin. Office of Courts, CIV 21-0710 JB/LF
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 8, 2021
    ...holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits.” Heideman v. S. Salt 2 Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, “[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. S. Salt Lake Ci......
  • ASS'N OF PEOPLE WITH DISABILITIES v. Herrera, No. CIV 08-0702 JB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 5, 2010
    ...rights, the protection against restrictions on First-Amendment rights would be weakened. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 (10th Cir.2003) ("The burden of proof is on the government to `demonstrate that the recited harms are real, not merely conjectural, and that the re......
  • Request a trial to view additional results

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