Kentucky Restaurant Concepts v. Louisville, Ky.

• Citation: 209 F.Supp.2d 672
• Decision Date: 12 June 2002
• Docket Number: CIVIL ACTION NO. 3:01CV-374-H.
• Court: U.S. District Court — Western District of Kentucky
• Parties: KENTUCKY RESTAURANT CONCEPTS, INC., d/b/a P.T.'s Showclub, et al., Plaintiff, and Taylor Boulevard Theatre, Inc., d/b/a Deja Vu, a Kentucky Corporation, Intervening Plaintiff, v. The CITY OF LOUISVILLE, JEFFERSON COUNTY, KENTUCKY, and the Honorable David L. Armstrong, Mayor of the City of Louisville, in his official capacity only, Defendants.

209 F.Supp.2d 672

KENTUCKY RESTAURANT CONCEPTS, INC., d/b/a P.T.'s Showclub, et al., Plaintiff, and Taylor Boulevard Theatre, Inc., d/b/a Deja Vu, a Kentucky Corporation, Intervening Plaintiff, v. The CITY OF LOUISVILLE, JEFFERSON COUNTY, KENTUCKY, and the Honorable David L. Armstrong, Mayor of the City of Louisville, in his official capacity only, Defendants.

CIVIL ACTION NO. 3:01CV-374-H.

United States District Court, W.D. Kentucky. At Louisville,

June 12, 2002.

Agreed Order Amending Decision July 19, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert D. McClure, Kruger, Schwartz & Morreau, E. Brian Davis, Louisville, KY, Allan S. Rubin, Rubin & Rubin, Southfield, MI, for Kentucky Restaurant Concepts, Inc., Regina Wycott, Michael T. Fischer, Ann F. Hayden, Desiree D. Grider, Tabitha K. Leezer, Karen M. Cocher.

Robert D. McClure, Kruger, Schwartz & Morreau, Allan S. Rubin, Rubin & Rubin, Southfield, MI, for Jane Roe.

Frank Mascagni, III, Louisville, KY, Bradley J. Shafer, Shafer & Associates, Lansing, MI, for Jane Doe I, II and III, Taylor Blvd. Theatre Inc.

Winston E. King, City Law Dept., Louisville, KY, for City of Louisville, Jefferson County, Kentucky, David L. Armstrong.

Paul V. Guagliardo, City Law Dept., Louisville, KY, for Jefferson County, KY.

MEMORANDUM OPINION

HEYBURN, Chief Judge.

This case concerns the City of Louisville's adult entertainment regulatory scheme, LOUISVILLE CODE OF ORDINANCES §§ 111.001-.008 (the "Ordinance"). Plaintiffs, two adult entertainment facilities and several licensed dancers working therein, set out a broad constitutional challenge to virtually every part of the Ordinance as recently amended. The breadth of Plaintiffs' opposition requires the Court to consider the Ordinance in unusual length and detail.

Fortunately, the Court is not working from a blank slate. Both the Supreme Court and the Sixth Circuit Court of Appeals have considered many aspects of the issues raised here. The Court's analysis treads into the well-worn though still rocky constitutional intersection of our inclination to embody private morality as public law, the real concern for the deleterious consequences of allowing some activities to continue or expand unregulated, and reverence of the constitutional right of self-expression.

Summary

The Court concludes in Section II of this Memorandum Opinion that the City's substantive regulations of adult entertainment — the well publicized so-called "buffer zone" and related regulations — survive constitutional scrutiny. The less known licensing process, however, presents more difficult constitutional questions. While the Court generally approves of the application requirements, not all pass constitutional muster. As explained in Section III, the City of Louisville must amend or justify its application fees, keep confidential some of applicants' personal information and slightly amend its periodic inspection authority. These are relatively minor requirements. Not so minor is the requirement, described in Section IV of this Opinion, that the City completely revise its application process so as to avoid imposing a prior restraint on First Amendment freedoms. The Court provides some guidance as to how this may be done. Finally, in Section V, the Court concludes that this last impediment to constitutional freedoms is significant enough that the Court must enjoin enforcement of the entire Ordinance until it is properly amended.

I.

The City of Louisville has regulated and litigated with sexually-oriented adult entertainment businesses for the past quarter-century.¹ During this period, City laws have regulated licensing and zoning, as well as time and manner of operation. Within the last year, the City has enacted its most specific regulation yet concerning the operation of adult entertainment facilities.

The Ordinance regulates only establishments providing adult entertainment in which the entertainers expose their breasts or genitals. A bar, restaurant or other entertainment establishment need not obtain any license under the Ordinance so long as its entertainers do not expose their breasts or genitals and so long as the establishment does not feature other adult entertainment described in the Ordinance.²

The following is a general overview of the Ordinance.³ Section 111.001 makes findings concerning the potential adverse effects of unregulated adult entertainment activities and states that the Ordinance's purpose is to control those secondary effects. Section 111.002 defines adult entertainment establishments and activities. Among those particularly relevant to our case are the "adult cabaret" and "cabaret." An adult cabaret may feature entertainers who dance fully nude, but must obtain an adult cabaret license, and may not serve alcoholic beverages. The Ordinance separately defines a "cabaret" as a nightclub, bar, restaurant, or other commercial establishment which features topless entertainment rather than total nudity. One who engages in the cabaret business must apply for a cabaret license. A cabaret may serve alcoholic beverages.

Section 111.004 outlines the steps necessary to obtain an adult cabaret or cabaret license. First, an applicant must provide a significant amount of information about the business and its owners and directors, including their names, addresses, social security numbers and photographs. Applicants must also obtain statements from myriad City agencies to demonstrate compliance with various health and safety regulations. Once the requisite information, materials and payment — $5,000 for an adult cabaret license, $3,000 for a cabaret license — have been submitted, the City Department of Inspections, Permits and Licenses (the "Department") must perform an inspection. If all the necessary conditions are satisfied, and the applicant has not been convicted within the past five years of certain criminal offenses, the Director must issue the license within ten days. If the inspection is not completed within thirty days after the receipt of the application, the Department must issue a temporary license that will be effective for thirty days or until the inspection is completed, whichever comes first.

The application process for individual entertainers is similar to that for establishments, although not identical. Each applicant must submit her legal and stage names, resident address, date of birth, social security number, a recent photograph, and fingerprints. Once a completed application and $100 fee have been submitted, the Director shall grant the license within ten days after receiving a report from the City police that the applicant has not been convicted within the past five years of certain criminal offenses. If the Director does not receive this police report within fifteen days of the receipt of the application, a temporary license shall issue, effective for fifteen days or until the report is received, whichever comes first. These requirements are the same for both adult cabaret and cabaret entertainers.

Section 111.003 sets forth restrictions upon operation. Until recently, the Ordinance regulated only the location, physical design and appearance of adult cabarets and cabarets. The Ordinance regulated the attire of the entertainers as a way of defining the type of facility as either an adult cabaret or cabaret. However, the Ordinance did not specifically regulate the conduct of the entertainers or the manner of their performance. In October 2001, the City amended the Ordinance to impose restrictions on their conduct. Generally, the amendment prohibits physical contact between an entertainer and other persons during any performance, requires all performances to occur on a stage at least eighteen inches above the immediate floor level, and requires all entertainers to remain at least three feet removed from all other persons during a performance. The Ordinance also provides that any violation by an entertainer shall be considered an act of the owner or operator of the premises for purposes of determining whether a license should be revoked, suspended or renewed.

Section 111.005 states the procedures for license renewals, suspensions or revocations. It provides that in the event the Director refuses to renew, suspends or revokes a license, and the applicant appeals the decision, the license shall remain in full force and effect during the pendency of the appeal. Finally, § 111.008 that any violation shall be a misdemeanor punishable by a fine of up to $100 or imprisonment not to exceed fifty days, or both.

II.

The First Amendment of the United States Constitution protects nude or nearly nude dancing which expresses eroticism and carries an endorsement of erotic experience. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion) (Souter, J., concurring in the judgment).⁴ Plaintiffs aim to communicate precisely such a message of fantasy, intimacy and sexuality. According to their testimony, they accomplish this by creating a carefully choreographed sexual atmosphere within the adult facilities. While this may not be everyone's idea of entertainment, Plaintiffs' activities unquestionably are entitled to constitutional protection. Nevertheless, it is clear that, within certain parameters, a municipality may regulate such expressive conduct. See generally id. The so-called "buffer zone" and related provisions directly regulate expressive conduct. The initial question this Court must decide is what level of constitutional scrutiny applies to these restrictions.

In a preamble to its recent amendment of the Ordinance,⁵ the City states its intent to control or limit the adverse secondary effects of adult entertainment activity, and cites several studies conducted in other urban centers which link such activity to crime and neighborhood deterioration. The Supreme Court has said that courts should generally accept the expressed purpose of a legislative...