Imaginary Images Inc. v. Evans

• Decision Date: 19 December 2008
• Docket Number: No. 3:08-CV-398.,3:08-CV-398.
• Citation: 593 F.Supp.2d 848
• Parties: IMAGINARY IMAGES INC. et al., Plaintiffs, v. Pamela O'Berry EVANS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

593 F.Supp.2d 848

IMAGINARY IMAGES INC. et al., Plaintiffs, v. Pamela O'Berry EVANS, et al., Defendants.

Action No. 3:08-CV-398.

United States District Court, E.D. Virginia, Richmond Division.

December 19, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard S. Samet, Florancegordonbrown, Richmond, VA, John Michael Murray, Steven Daniel Shafron, Berkman Gordon Murray & Devan, Cleveland, OH, for Plaintiffs.

Mike Melis, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

JAMES R. SPENCER, Chief Judge.

THIS MATTER is before the Court on Plaintiffs' Motion for Preliminary Injunction (Docket No. 3). For the following reasons, the Motion for Preliminary Injunction will be DENIED in part, as to Virginia Code sections 4.1-226, 4.1-325, and ABC Regulation, 3 Va. Admin. Code § 5-50-140, with the exception of the term "reasonably separated." The Motion will be GRANTED in part, as it pertains to Virginia Code sections 4.1-222(A)(1)(g), 4.1-223(3), and the phrase "reasonably separated" contained within ABC Regulation, 3 Va. Admin. Code § 5-50-140. These specific sections and phrase will be hereby permanently enjoined.

I. BACKGROUND

Imaginary Images, Inc., BTF3, and Papermoon-Springfield, Inc., ("Plaintiffs") operate restaurants in Virginia which feature exotic dancing and adult entertainment. (Pls.' Brief in Supp. of Mot. for TRO and Prelim. Inj. 1.) Plaintiffs Imaginary Images and BTF3 hold licenses issued by the Virginia Alcohol Beverage Control Board ("ABC") that permit them to sell beer and wine at the premises. (Pls.' Br. 1.) Pamela O'Berry Evans, Susan Swecker, and Esther H. Vassar are members of the Virginia ABC Board ("ABC" or "Defendant").

In 2007, the Norfolk Division of the Eastern District of Virginia preliminarily enjoined specific Virginia Code sections pertaining to ABC regulations for being unconstitutionally overbroad and vague. Norfolk 302, LLC v. Vassar, 524 F.Supp.2d 728 (E.D.Va.2007). As a result, adult entertainment establishments were given access to mixed liquor licenses, something not previously available. (Pls.' Br. 2.)

ABC appealed Norfolk 302 to the Fourth Circuit, and simultaneously the General Assembly revised the enjoined statutes and regulation. (Def.'s Mem. 6.) The revisions became effective July 1, 2008. The statutes and regulation, as amended, contain language that complies with the Fourth Circuit's decision in Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074 (4th Cir.2006) ("Carandola II"), a case dealing with similar alcohol licenses in adult entertainment venues. (Def.'s Mem. in Opp'n to Pls.' Mot. for TRO and Prelim. Inj. 1.) After the amendments were made, ABC filed a Motion to Vacate Judgment as Moot in the Fourth Circuit, arguing that the revisions to the problematic statutes negated the appealable issues. (Def.'s Mem. 6.) On July 16, 2008, the Fourth Circuit granted ABC's Motion, thereby vacating the preliminary injunction, and remanding the matter to the Eastern District of Virginia, Norfolk division, for further proceedings. (Def.'s Mem. 6-7.)

Plaintiffs filed Motions for a Temporary Restraining Order, Preliminary Injunction, and for an Evidentiary Hearing on June 26, 2008. This Court heard oral argument on the TRO Motion on September 15, 2008. The TRO was granted in part and denied in part. This Court held that the challenges to Virginia Code sections 4.1-226, -325, and ABC Regulation section 5-50-140 did not justify a TRO. However, this Court temporarily enjoined Virginia Code sections 4.1-222(A)(1)(g) and 4.1-223(3) because they contain problematic unconstitutional language identified by this Court in Norfolk 302. An Evidentiary Hearing was held on November 24, 2008, wherein both parties produced evidence as to the negative secondary effects of adult entertainment establishments. The Motion currently before the Court is Plaintiffs' Motion for Preliminary Injunction.

II. DISCUSSION

A. Preliminary Injunction Standard

A preliminary injunction is "an extraordinary remedy," one "to be granted only sparingly." In re Microsoft Litig., 333 F.3d 517, 524 (4th Cir.2003). It "maintains a particular relationship between the parties" to a case before it is decided on its merits. United States Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 280 (4th Cir.2006). Accordingly, whether a preliminary injunction is warranted depends on the relative effect on the parties of maintaining the status quo, as well as the public interest in doing so. Id. A preliminary injunction may not grant relief of a character that could not ultimately be granted. In re Microsoft Litig., 333 F.3d at 525.

A court deciding whether to issue a preliminary injunction must weigh four factors: (1) the likelihood of irreparable harm to the plaintiff if its request for relief is denied; (2) the likelihood of harm to the defendant if the requested relief is granted; (3) the likelihood that the plaintiff will succeed on the merits of its claim; and (4) the public interest. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.1977); accord Wolf Run Mining Co., 452 F.3d at 280. The party seeking the preliminary injunction bears the burden of proving that each factor supports granting relief. Direx Israel Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991).

The United States Supreme Court has not specified the order in which a court should analyze these factors, nor the weight that they should be given. See Globe Nuclear Svcs. & Supply, Ltd. v. AO Techsnabexport, 376 F.3d 282, 287 (4th Cir.2004). In some decisions, the Fourth Circuit has instructed that the first two factors—the "balancing of harms" test— are the most important. See, e.g., Direx Israel, 952 F.2d at 812. In Blackwelder, the Fourth Circuit declared that a court deciding whether to grant a preliminary injunction must first compare the likelihood of irreparable harm to the plaintiff to the likelihood of harm to the defendant and if "a decided balance of hardship" in the plaintiff's favor results based on serious, difficult questions, then a preliminary injunction is warranted. 550 F.2d at 195. As the probability that the plaintiff will suffer irreparable harm decreases, the importance of the third factor—the strength of the plaintiff's case and likelihood of success on the merits—increases. Id. Although the Fourth Circuit has adopted this approach on several occasions, it recently cautioned that focusing on the "balancing of harms" test is contrary to Supreme Court precedent. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n. 2 (4th Cir.2002).¹

In a case where "the irreparable harm that [the plaintiff] has alleged is inseparably linked to his claim of a violation of his First Amendment rights ... analysis of [the plaintiff's] likelihood of success on the merits becomes the first and the most important factor for a court to consider." Ctr. for Individual Freedom, Inc. v. Ireland, No. 1:08-190, 2008 WL 1837324, at *2 (S.D.W.Va. Apr. 22, 2008) (quoting Newsom ex rel. Newsom v. Albemarle County Sch. Bd., 354 F.3d 249, 254-55 (4th Cir.2003)); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir.2002) ("Carandola I"). Therefore, because First Amendment violations are alleged, this Court will first analyze Plaintiffs' likelihood of success for each alleged claim of unconstitutionality.

B. Likelihood of Success on the Merits

1. Overbreadth Challenges

To be overbroad, a statute must "reach [ ] a substantial number of impermissible applications." New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). To determine overbreadth, the first consideration is the degree of scrutiny to apply to the challenge. Carandola I, 303 F.3d at 512. The Eastern District of Virginia and the Fourth Circuit have previously held that the level of scrutiny to apply in this style of case is intermediate scrutiny, not strict scrutiny. Norfolk 302, 524 F.Supp.2d at 736; Carandola II, 470 F.3d at 1082. Additionally, the challenged statutes fall under Virginia's Alcoholic Beverage Control Act, the purpose of which is "to legalize, regulate, and control the ... drinking and use of alcohol." Id. (quoting Miller v. Commonwealth, 172 Va. 639, 2 S.E.2d 343, 346 (1939)). In Norfolk 302, the Court noted that the challenged statutory provisions are surrounded by statutes addressing "secondary effects of alcohol use, including gambling and drug use," and concluded that the challenged statutes regulate alcohol use and not expressive conduct (like exotic dancing). Id. (citing Va.Code Ann. §§ 4.1-225(1)(g) (drug intoxication),— 225(1)(h) (gambling),—226(1) (gambling devices)); see also Preamble, 3 Va. Admin. Code § 5-50 (amending 3 Va. Admin. Code § 5-50-140) (noting that evidence exists which records the deleterious effects sexually oriented business have on the community and without these enjoined regulations "there is currently no state law or regulation governing sexually oriented entertainment at establishments licensed for the sale of alcoholic beverages, [which presents] an imminent threat to public health and safety"). Because the challenged statutes were designed to "curb the problematic secondary effects that arise from alcohol consumption" and not expressive conduct or nudity, the proper level of scrutiny to apply is intermediate scrutiny. Id. (citing Carandola I, 303 F.3d at 515).

Intermediate scrutiny requires that the state "demonstrate that a statute `materially advances an important or substantial interest by redressing past harms or preventing future ones.'" Carandola II, 470 F.3d at 1082 (citing Satellite Broad. & Commc'ns Ass'n v. FCC, 275 F.3d 337, 356 (4th Cir.2001)). Therefore, a state must narrowly tailor a statute to serve a "substantial government interest." Norfolk 302, 524 F.Supp.2d at 736.

a. Sections 4.1-222(A)(1)(g) and -223(3)

First and foremost, Plaintiffs challenge sections 4.1-222(A)(1)(g) and 4.1-223(3) for containing ambiguous language...