Iacobucci v. City of Newport, Ky.

• Decision Date: 09 May 1986
• Docket Number: No. 83-5471,83-5471
• Citation: 785 F.2d 1354
• Parties: Nicholas A. IACOBUCCI, d/b/a Talk of the Town, et al., Plaintiffs-Appellants, v. CITY OF NEWPORT, KENTUCKY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1354

785 F.2d 1354

Nicholas A. IACOBUCCI, d/b/a Talk of the Town, et al Plaintiffs-Appellants, v. CITY OF NEWPORT, KENTUCKY, et al., Defendants-Appellees.

No. 83-5471.

United States Court of Appeals Sixth Circuit.

Argued Sept. 24, 1984.

Decided March 20, 1986.

Rehearing and Rehearing En Banc Denied May 9, 1986.

Andrew B. Dennison (argued), Batavia, Ohio, Richard Slukich, Covington, Ky., for plaintiffs-appellants.

James Parsons (argued), Newport, Ky., Bill G. Wilder, Florence, Ky., for defendants-appellees.

Before KEITH and MARTIN, Circuit Judges, and POTTER, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

This appeal challenges the constitutionality of two ordinances of the City of Newport, Kentucky. Ordinance 0-82-85 prohibits nude or nearly nude dancing in establishments selling liquor by the drink, and provides for both criminal and civil sanctions. The second ordinance, 0-82-56, requires certain employees of such establishments to register with the Newport police department, to be fingerprinted, photographed, and to procure an identification card. The appellants are managing agents of retail liquor establishments which provide live entertainment including nude and nearly nude dancing. They claim that the ordinances deprive them of their constitutional rights in violation of 42 U.S.C. Sec. 1983, and seek a declaratory judgment and permanent injunctive relief against enforcement of the ordinances.

The fingerprinting ordinance, 0-82-56, provides in pertinent part:

1. Any person employed in any capacity in any establishment or place of business, except as hereinafter provided, where liquor or beer is sold or dispensed by the drink as defined in both the Kentucky Revised Statutes and the Newport City Ordinances, shall register in a book of registration to be kept by the Newport Police Department, and is hereby required to be fingerprinted or photographed by the Police Department of the City of Newport within five (5) days from the time of his or her employment. No such person shall fail to register, be fingerprinted or photographed.

2. No employer, whether a person, firm or corporation, shall allow any person to remain in such employment longer than five (5) days unless within such five (5) day period, the employee shall have registered and shall have been fingerprinted and photographed.

3. The registrants are required to have in their possession the identification cards issued by the Newport Police Department on their persons during their hours of employment in establishments selling or dispensing liquor or beer by the drink. ¹

Later sections exempt persons whose "primary function is the service of food." The penalty for violation of this ordinance is a fine of not less than twenty-five nor more than five hundred dollars, which can be assessed against both the employee and employer.

The proprietors in this case claim that the fingerprinting ordinance infringes upon their rights under the first, ninth, and fourteenth amendments. They contend that their right of privacy and right of association are specifically threatened by this enactment, citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). We do not believe that any fundamental constitutional rights are implicated by this ordinance. Because the ordinance bears a rational relationship to a legitimate governmental interest, we view it as a proper exercise of the City's police power. People v. Stuller, 10 Cal.App.3d 582, 89 Cal.Rptr. 158 (1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 327 (1971); Sibert v. Dep't of Alcoholic Beverage Control, 169 Cal.App.2d 563, 337 P.2d 882 (1959); Friedman v. Valentine, 177 Misc. 437, 30 N.Y.S.2d 891 (Sup.Ct.1941), aff'd, 266 A.D. 561, 42 N.Y.S.2d 593 (1943).

Newport's fingerprinting ordinance does not contain a statement of its purpose. The district judge discussed Newport's "tarnished image" and concluded that correcting this image constituted a rational basis for the ordinance. The City asserts that the ordinance would facilitate enforcement of various state laws regulating retail liquor establishments. While a specific statement of the purpose of the ordinance should have been included in its text, fingerprints and photographs of those serving alcohol will clearly further compliance with the Kentucky statute prohibiting minors and convicted felons ² from serving alcohol in any retail establishment, K.R.S. Sec. 244.090. Newport's notorious crime problems intensify the necessity of such compliance; a remand for a statement to this effect is therefore not required. See, e.g., Friedman v. Valentine, 30 N.Y.S.2d at 894 ("That an unsupervised cabaret offers a tempting field for abuses and crimes is almost axiomatic.")

Courts have consistently upheld the constitutionality of similar ordinances as valid implementations of the police power. In People v. Stuller, 10 Cal.App.3d 582, 89 Cal.Rptr. 158 (1970), cert. denied, 401 U.S. 977, 91 S.Ct. 1205, 28 L.Ed.2d 327 (1971), a bartender's fingerprints taken pursuant to a virtually identical ordinance were admitted as evidence in his trial for rape. In rejecting the defendant's claim that the ordinance authorized an unconstitutional invasion of his privacy, the Stuller court noted the minimal nature of the intrusion involved in registration and fingerprinting, and listed the numerous non-criminal situations in which fingerprints are required. 89 Cal.Rptr. at 166-67.

A New York Police Commission regulation requiring the registration and fingerprinting of all cabaret employees was upheld in Friedman v. Valentine, 177 Misc. 437, 30 N.Y.S.2d 891 (Sup.Ct.1941), aff'd, 266 A.D. 561, 42 N.Y.S.2d 593 (1943). The court held that the regulation was justified by conditions in the cabaret industry, stating "[n]o one can seriously argue against the conclusion that persons employed in cabarets and by their concessionnaires have especially favorable opportunities to victimize patrons of such establishments." 30 N.Y.S.2d at 895. Friedman was reaffirmed in Simone v. Kennedy, 26 Misc.2d 748, 212 N.Y.S.2d 838, 840 (N.Y.Sup.Ct.1961), in which the court approved the police department's practice of charging fees for the identification cards required by the ordinance.

The Friedman reasoning helped pave the way for a federal case on fingerprinting requirements, Thom v. N.Y. Stock Exchange, 306 F.Supp. 1002 (S.D.N.Y.1969), aff'd sub nom. Miller v. N.Y. Stock Exchange, 425 F.2d 1074 (2d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). Thom upheld the constitutionality of a New York state statute requiring fingerprinting of all employees of member firms of national security exchanges registered with the Securities and Exchange Commission and all employees of affiliated cleaning corporations. The court rejected the plaintiff's privacy argument, observing that fingerprinting "is only a means of verifying the required information as to the existence or nonexistence of a prior criminal record ... [t]he actual inconvenience is minor; the claimed indignity, nonexistent; detention, there is none; nor unlawful search; nor unlawful seizure." Id. at 1009. See also id. at 1007 n. 17 (citing federal and state cases upholding fingerprinting requirements); Davis v. Mississippi, 394 U.S. 721, 727-28, 89 S.Ct. 1394, 1397-98, 22 L.Ed.2d 676 (1969) (recognizing the minimal intrusiveness of the fingerprinting process).

The Durham, North Carolina City Council adopted a similar, but more extensive, ordinance regulating massage parlors. The ordinance requires all applicants for licenses for massage businesses to be fingerprinted and photographed, and to submit to medical examinations. The constitutionality of this ordinance was upheld in Brown v. Brannon, 399 F.Supp. 133, 138-39 (M.D.N.C.1975), aff'd, 535 F.2d 1249 (4th Cir.1976). The Brown court concluded that the ordinance was rationally related to a valid state interest: "[T]he photographing and fingerprinting obviously serve to aid police and administrative personnel in identifying and investigating potential applicants for a license.... The records also would aid in the efforts of North Carolina relating to offenses against public morality and decency." Id. at 139.

Fingerprints are required by states and cities in many noncriminal situations, most often in connection with applications for licenses or permits. See, e.g., Ky., Sup.Ct.R. 2.020(2) (requiring fingerprints of applicants for the bar); Louisville, Ky., Code Secs. 73.22, 112.15(2) (requiring photographs and fingerprints of applicants for licenses for numerous occupations, including auctioneers, fortune tellers, and collecting agencies); Louisville, Ky., Code Sec. 114.049(A)-(D) (requiring fingerprinting of all applicants for retail liquor licenses and authorizing the Director of Safety to require fingerprinting of all "stockholders, agents, or employees of a licensed corporation" if he has reasonable grounds to believe the person has a prior criminal record.)

Newport's fingerprinting ordinance serves corresponding goals. Because no fundamental right is threatened by the ordinance, it will be upheld if it is reasonable, not arbitrary, and bears a rational relationship to a permissible state objective. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). We believe that the ordinance legitimately furthers Kentucky's objective of screening employees of retail liquor establishments, and advances the city's goal of eliminating crime. Cf. International Soc. for Krishna Consciousness v. City of Houston, 689 F.2d 541, 556-57 (5th Cir.1982) (upholding city ordinance requiring religious solicitors to comply with registration and financial disclosure requirements, and to carry identification cards); Hamilton v. New Jersey Real Estate Comm'n., 117 N.J.Super. 345, 284 A.2d 564 (1971) (upholding Real Estate Commission regulation requiring all applicants for salesman, broker-salesman, or broker's...