Jackson Twp. v. Dizzy Dottie, LLC
| Decision Date | 02 December 2011 |
| Docket Number | No. 1941 C.D. 2010,1941 C.D. 2010 |
| Parties | Jackson Township, a Second-Class Township of the Commonwealth of Pennsylvania v. Dizzy Dottie, LLC, a Pennsylvania Limited Liability Company, Appellant |
| Court | Pennsylvania Commonwealth Court |
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
Dizzy Dottie, LLC, a Pennsylvania Limited Liability Company (Property Owner), appeals from the June 16, 2010, order of the Court of Common Pleas of Monroe County, Forty-Third Judicial District (trial court), which granted the petition of Jackson Township (Township) to preliminarily enjoin Property Owner from using its property as an adult cabaret. We affirm.
Property Owner opened a business known as Thrills at the corner of Route 715 and Doll Road in the Township's commercial zoning district. The Township's zoning ordinance permits adult cabarets only in the industrial zoning district. When Property Owner began advertising for bikini dancers, the Township suspected that Property Owner might be planning to operate an adult cabaret in violation of the zoning ordinance. Thus, the Township hired Glen Miller, a private investigator, to visit Thrills.
Based on Miller's investigation, the Township filed with the trial court a petition for a preliminary and permanent injunction, arguing that Property Owner was operating an adult cabaret in a commercial zoning district in violation of the Township's zoning ordinance. At the preliminary injunction hearing, the Township presented a video recording made by Miller during his visit to Thrills. Miller also testified that he spoke with a dancer named Autumn, who invited Miller to purchase a lap dance in the VIP room, a private room in the upstairs section of the premises. Miller paid $20 "to the house" and $40 to Autumn for two fifteen-minute lap dances.
In the VIP room, Autumn removed her bra and the bottom of her costume, leaving only a g-string covering the vaginal and anal areas of her body. Autumn informed Miller that he could touch everything except the "cookies," by which she meant her vagina. During the dance, Autumn put her nude breasts in Miller's mouth. She also allowed Miller to suck, lick and caress her breasts and to squeeze and caress her bare buttocks while she gyrated and thrust her covered vagina against his groin area.
After considering the video recording and Miller's testimony, the trial court concluded that Property Owner was operating an adult cabaret in a commercial zoning district in violation of the Township's zoning ordinance.1 Accordingly, onJune 16, 2010, the trial court granted the Township's petition for a preliminary injunction. In its supporting opinion, the trial court indicated that Property Owner had raised constitutional questions. However, the trial court stated that those issues would be "reserved for future proceedings" and that the only issue before the court at the time was whether Property Owner violated the zoning ordinance. (Trial Ct. Op., 6/16/10, at 11.)
Property Owner filed an appeal. In its concise statement of errors complained of on appeal, Property Owner asserted, inter alia, that the Township's zoning ordinance is unconstitutional on its face because it vests the Township with unfettered discretion over the exercise of free speech, because it is too vague to be enforceable and because it is overbroad. The trial court, in its statement pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, again indicated that Property Owner had raised constitutional issues, but the trial court stated that the only issue before the trial court at the time was whether Property Owner violated the zoning ordinance. (Trial Ct. Op., 8/16/10, at 6.)
On October 19, 2010, the trial court granted the Township a permanent injunction, and, in its opinion, the trial court addressed the constitutional issues raised by Property Owner, concluding that the Township did not violate Property Owner'sconstitutional right to free speech. After the issuance of the permanent injunction and Property Owner's appeal of the permanent injunction to this court, the Township filed a motion to quash this appeal as moot. The Township asserted that, because a preliminary injunction is superseded by a decision on the merits and terminates upon the issuance of a permanent injunction, this appeal is moot. See Sasinoski v. Cannon, 696 A.2d 267, 270 (Pa. Cmwlth. 1997) ( that an appeal from a preliminary injunction is moot once a permanent injunction is issued because relief can no longer be given from the preliminary injunction). This court...
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