Hughes v. Cristofane

• Decision Date: 13 March 1980
• Docket Number: Civ. No. HM80-371.
• Parties: Bernard HUGHES, t/a Three Captains House of Seafood et al. v. Susanna K. CRISTOFANE, Mayor, et al.
• Court: U.S. District Court — District of Maryland

486 F. Supp. 541

Bernard HUGHES, t/a Three Captains House of Seafood et al. v. Susanna K. CRISTOFANE, Mayor, et al.

Civ. No. HM80-371.

United States District Court, D. Maryland.

February 22, 1980.

On Motion for Preliminary Injunction March 13, 1980.

Russell W. Shipley, Lawrence N. Taub, Landover, Md., for plaintiffs.

James E. Kenkel, Upper Marlboro, Md., for defendants.

MEMORANDUM OPINION

HERBERT F. MURRAY, District Judge.

The plaintiffs are the owners and major shareholders of the Three Captains House of Seafood Restaurant in Bladensburg, Maryland; the defendants are the mayor and town councilmen of Bladensburg. The plaintiffs, whose restaurant has until recently provided entertainment in the form of "topless" dancing, seek a temporary restraining order enjoining enforcement of a recently-enacted Bladensburg town ordinance which prohibits such entertainment in establishments that serve alcoholic beverages or food. After hearing oral argument on the matter from both sides, and having considered the applicable law, the court has concluded that the restraining order should issue as the plaintiffs have requested.

The ordinance in question, Ordinance 3-80, first recites the concern of the residents and Town Council of Bladensburg with the "many problems" incident to the operation of businesses serving alcoholic beverages or food and providing "topless or semi-nude entertainment." The language contains no specific explanation of what the "many problems" are. Invoking the Council's "broad police powers and licensing powers," the ordinance then requires that "all businesses offering live entertainment and serving alcoholic beverages or food" obtain a town entertainment license. The law goes on to proscribe the following conduct:

2. Attire of performers and food or beverage servers in Licensed Premises — It shall be unlawful for any person serving food or alcoholic beverages, or performing for the public, or whose duties consist primarily of dancing, walking or posing before customers, in any business required herein to be licensed, whether during the performance or at any time while on the premises of such licensed business, to publicly and knowingly display:

a. The genitals or any portion thereof.

b. Any portion of public sic hairs, including the shaved pubic hair line or area.

c. The buttocks, including any portion of the cleavage between the buttocks.

d. Any portion of the areola or papilla of the female breast or any area of the female breast below said portions.

3. Conduct of performers and food or beverage servers in licensed premises — It shall be unlawful for any person serving food or beverages, or performing for the public, or whose duties consist primarily of dancing, walking or posing before customers, while on the premises of such licensed business to publicly and knowingly:

a. Commit or simulate any sexual act such as sexual intercourse, masturbation, fellatio, cunnilingus, sodomy or any unnatural sexual act, whether acting alone or with any other person.

b. Sit, drink, or dine with any patron or perform closer than six (6) feet from any patron.

c. Contact any person or other performers by touching, caressing or fondling the breast, buttocks, anus or genitals of any patron or other performer.

Any person who engages in any of the proscribed conduct, or suffers the conduct to be engaged in on licensed premises, is subject to a fine or imprisonment or both, and to possible revocation of his or her entertainment license. The plaintiffs contend that the ordinance is overbroad, and that it deprives them of their rights under the first and fourteenth amendments to the Federal Constitution. Their claim is brought under 42 U.S.C. § 1983.

The initial question for a federal court confronted with a challenge to the constitutionality of a state or municipal ordinance is whether considerations of comity and federalism require the court to abstain from deciding the matter until an appropriate state court has had an opportunity to resolve the dispute. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The court does not find abstention appropriate in this case under either the Younger doctrine or the Pullman doctrine.

According to the principles of Younger, a federal court should not enjoin any state criminal or civil proceeding pending against the party seeking federal relief. Younger v. Harris, supra; Huffman v. Pursue, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). The rationale of the Younger doctrine is that a federal court should not interfere with an ongoing state proceeding before the state forum has had an opportunity to decide the matters at issue. However, in the present case, none of the three plaintiffs is presently involved in a state court proceeding of any kind. Furthermore, the plaintiffs have satisfied the court that the threat of their being prosecuted under Ordinance 3-80 is substantial and immediate. Younger v. Harris, supra, 401 U.S. at 41-42, 91 S.Ct. at 749-750; Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 1214-15, 39 L.Ed.2d 505 (1974). Three of the dancers employed by the plaintiffs have already been arrested under the new law, and since the last arrest on February 14th, the police have visited the plaintiffs' restaurant at least once a day. Although the dancers have apparently been instructed to wear halter tops in order to comply with the ordinance, the court finds that the three arrests already made and the repeated visits of the police create enough of a threat of prosecution to give the plaintiffs standing in this court.

Because the plaintiffs have made out a justiciable case or controversy, and are not involved in any pending state proceedings, nothing in the Younger line of cases prohibits this court from granting the relief requested.

Similarly, the court can find no basis for abstaining under the "Pullman doctrine." If the law at issue were subject to two interpretations, and a state court might therefore be able to interpret it in such a way as to avoid any constitutional issue, this court would take no action until the state court had had an opportunity to consider the ordinance. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); United Steelworkers of America v. Bagwell, 383 F.2d 492 (4th Cir. 1967). However, this court finds the law to be susceptible of only one meaning, which unambiguously raises the constitutional issues discussed below. Accordingly, abstention is inappropriate.

In order to obtain relief by a temporary restraining order under Rule 65 of the Federal Rules, the plaintiffs must show:

(1) that unless the restraining order issues, they will suffer irreparable harm;

(2) that the hardship they will suffer absent the order outweighs any hardship the defendants would suffer if the order were to issue;

(3) that they are likely to succeed on the merits of their claims;

(4) that the issuance of the order will cause no substantial harm to the public; and

(5) that they have no adequate remedy at law.

See Blackwelder Furniture Co., Etc. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). See also Thompson Van Lines, Inc. v. United States, 381 F.Supp. 184 (D.D.C.1974); North Carolina State Ports Authority v. Dart Containerline Co., Ltd., 592 F.2d 749 (4th Cir. 1979). The plaintiffs have satisfied each of the prerequisites.

If a restraining order did not issue, the owners of the Three Captains Restaurant would suffer irreparable harm both to their financial interests and to their interest in the free exercise of constitutional rights. According to the affidavit of plaintiff Bernard Hughes, filed with the court on February 20, 1980, the gross income of his restaurant was "generally" over $1000 and rarely less than $800 per day before he clothed his dancers on February 14th in order to comply with Ordinance 3-80. Since he has complied, the business has averaged $700 a day. Because Mr. Hughes requires at least $750 to $800 gross income per day to meet expenses, he has been operating at a loss since the topless dancing ceased. He anticipates that his business may fail if the dancers must continue to comply with the ordinance. Other courts have found that loss of revenue, when specifically described, constitutes irreparable harm, and this court believes Mr. Hughes has made an adequate showing under that standard. Salem Inn, Inc. v. Frank, 408 F.Supp. 852 (E.D.N.Y. 1976). Cf. Frejlach v. Butler, 573 F.2d 1026 (8th Cir. 1978); C'est Bon, Inc. v. North Carolina State Board of Alcoholic Control, 325 F.Supp. 404 (W.D.N.C.1971).

More importantly, the plaintiffs have made an adequate showing that if enforcement of the ordinance is not enjoined, the law might operate to infringe the first and fourteenth amendment freedoms not only of the plaintiffs, but also of other proprietors and entertainers subject to the law's requirements. Such a showing satisfies not only the irreparable harm requirement, Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978), but also the likelihood-of-success requirement.

In the first place, the weight of authority in the federal courts is that nude dancing which cannot be characterized as obscene is a form of expression entitled to some protection under the first amendment. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir. 1975); Attwood v. Purcell, 402 F.Supp. 231 (D.Ariz.1975); Clark v. City of Fremont, 377 F.Supp. 327 (D.Neb. 1974); Wood v. Moore, 350 F.Supp. 29 (W.D.N.C.1972). See also Maita v. Whitmore, 365 F.Supp. 1331 (N.D.Cal.1973), rev'd on other grounds, 508 F.2d 143 (9th Cir. 1974), ...