Krueger v. City of Pensacola

• Citation: 759 F.2d 851
• Decision Date: 06 May 1985
• Docket Number: I,EX-AT,No. 84-3065,84-3065
• Parties: Roger KRUEGER; Roger Krueger, d/b/a The Ponderosa Rawhide Lounge; June A. Parker; Virgie Poston; Billy Prescott and James L. Cash, as sole shareholders ofnc., a Fla. corporation, d/b/a Hideout Lounge, Plaintiffs-Appellants, Sam J. Cantavespre, etc., et al., Plaintiffs, v. CITY OF PENSACOLA, a municipal corporation of the State of Florida, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 851

759 F.2d 851

Roger KRUEGER; Roger Krueger, d/b/a The Ponderosa Rawhide Lounge; June A. Parker; Virgie Poston; Billy Prescott and James L. Cash, as sole shareholders of EX-ATC, Inc., a Fla corporation, d/b/a Hideout Lounge, Plaintiffs-Appellants Sam J. Cantavespre, etc., et al., Plaintiffs, v. CITY OF PENSACOLA, a municipal corporation of the State of Florida, et al., Defendants-Appellees.

No. 84-3065.

United States Court of Appeals Eleventh Circuit.

May 6, 1985.

William Eddins, Pensacola, Fla., for plaintiffs-appellants.

Don Caton, John W. Fleming, Asst. City Atty., William D. Wells, Pensacola, Fla., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before FAY and VANCE, Circuit Judges, and MACMAHON ^*, District Judge.

VANCE, Circuit Judge:

In this case, owners of topless bars in the city of Pensacola, Florida bring a first amendment challenge to an ordinance which bans topless dancing in establishments where alcohol is served. Because Florida has not delegated to its local municipalities any of its twenty-first amendment powers to regulate activities connected with the sale of intoxicating liquors, the city must justify such a restriction of communication under its general police power. Since Pensacola has failed to produce evidence that any legitimate government interest motivated the city council to restrict the communication involved, we find the ordinance unconstitutional under the first amendment.

I.

For many years prior to 1982, the city of Pensacola was host to a number of bars which entertained patrons with seminude dancing. The activities in and around these establishments periodically gave rise to minor criminal complaints, but in general topless dancing coexisted rather uneventfully with other aspects of the city's social life. At one point, the police commissioner informed the city council that the topless bars generated a disproportionate number of complaints with regard to the crime of "B-drinking" (employee solicitation of drinks from customers), but the complaints decreased significantly after the city council passed an ordinance early in 1982 which required topless dancers to register and fill out information forms at the police department.

Then, in October 1982, the owners of an erstwhile liquor store located next door to the Brownsville Baptist Church painted go-go girls on the side of their building, installed an illuminated arrow on its facade, and began featuring their establishment as the "Rawhide Topless Go-Go & Lounge." Almost immediately members of the church began to lodge complaints with the Pensacola City Council about the presence of a topless lounge next door. Within a month they were joined by a number of other churches and religious organizations and the scope of the protest had spread beyond the Rawhide Lounge to all "other similar establishments in the city limits of Pensacola" as "an affront to all standards of decency in the community." The city council responded to this strong tide of public sentiment by holding a number of meetings where interested members of the public were given the opportunity to speak on the issue. The meetings generated extended debate over the morality of topless dancing, the fairness of putting dancers and bar owners out of work on the basis of offended public sensibility, and the propriety of legislating on such a moral question. None of those in favor of the ordinance made any reference to any crime problems associated with topless dancing, and some of those who opposed it pointed out that the city manager had sent a memorandum to the council indicating that there were no particular crime problems emanating from the topless establishments. ¹ Following the debate the City Council voted to "instruct the City Attorney to prepare the strongest possible ordinance ... to prohibit nude dancing in the City of Pensacola." The city attorney then drafted an ordinance patterned after a Cocoa Beach provision which had been found constitutional by a panel of this circuit in Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982). The city attorney also advised the council members that the facts of Grand Faloon were very different from those before them, since the Cocoa Beach commissioners had been confronted with evidence that substantial criminal activity took place in topless bars, whereas the Pensacola Chief of Police had determined that there was no greater incidence of crime in topless bars than in any other place serving alcoholic beverages. The Council nonetheless passed the ordinance by unanimous vote on January 27, 1983 ² and adopted it on its second reading on February 24, 1983.

Owners of the Rawhide Lounge and other topless dancing establishments, along with a number of dancers, then brought suit challenging the ordinance as a violation of the first amendment free speech clause. At trial, the city attorney elicited some testimonial evidence that it was more difficult to control the crime of "B-drinking" in topless bars than elsewhere. The district court found as a fact that the ordinance furthered a substantial government interest in controlling "B-drinking", and upheld it on that ground.

II.

In evaluating the constitutionality of Pensacola's topless dancing ordinance, ³ we find that many of the initial stages of our inquiry have already been resolved by controlling authority. First of all, we are bound to treat topless dancing as a form of expression which is protected at least to some extent by the first amendment. We acknowledge that the nature of the communication involved in most barroom dancing is such that "few of us would march our sons and daughters off to war" to protect that form of expression. Young v. American Mini Theaters, 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976). Nonetheless, as the Supreme Court has noted, the proscription of nude dancing infringes on some forms of visual presentation which would not fall within the Court's definition of obscenity. California v. LaRue, 409 U.S. 109, 116, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972). ⁴ Because of this potential for infringement on protected expression, we must require the government to show that its interest in regulating such activity is based on something other than a desire to censor the communication because of the community's dislike of its content.

We note further that in this case the municipality's efforts to regulate topless dancing cannot be given latitude simply because the performances are proscribed only in establishments licensed to sell liquor. The Supreme Court recognized in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) that a state statute prohibiting nude dancing in places where alcohol was sold should be given particular deference because of the state's power to regulate the sale and use of intoxicating liquors under the twenty-first amendment. Because Florida has not delegated its regulatory authority to municipalities, however, Pensacola must justify its ordinance under the stricter standard typically used to review an infringement on a protected liberty interest justified solely under the government's police power. See Grand Faloon, 670 F.2d at 944.

At trial, the city asserted that its interest in passing the ordinance was to regulate crime. Like the members of this court who evaluated the similar Cocoa Beach ordinance in Grand Faloon, 670 F.2d at 949, we agree that the goal of crime prevention is both legitimate and significant enough to justify such a regulation. Where such fundamental interests as the right to free speech are at issue, however, we require more than simply an articulation of some legitimate interest that the city could have had. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d 125 (1975). We will not be satisfied merely because the legislators have mimicked another ordinance that has been found constitutional in another context. Basiardanes v. City of Galveston, 682 F.2d 1203, 1213-14 (5th Cir.1982). The government must also show that the articulated concern had more than merely speculative factual grounds, and that it was actually a motivating factor in the passage of the legislation. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 69-73, 101 S.Ct. 2176, 2183-85, 68 L.Ed.2d 671 (1981); Basiardanes, 682 F.2d at 1215.

The facts in Grand Faloon met all of these tests. After articulating its legitimate concern with crime control, Cocoa Beach showed both that such concern was justified in light of evidence of significant crime problems in topless bars, and that these problems were the focus of the commissioners' attention when considering the ordinance. In this case, once we look behind the city's articulated post-hoc justifications, we find ourselves faced with an easily distinguishable set of facts. At trial the city attempted to produce evidence that its articulated interest in reducing crime was borne out by proof that the city had experienced particular crime problems in connection with the topless bars. The record discloses, however, that in spite of the city attorney's valiant attempts to buttress the city's crime prevention argument, there is no substantial evidence that such a problem in fact existed. All of the city's witnesses who testified concerning the crime problems in topless bars admitted on cross examination that there was no hard evidence of any greater crime problem in topless bars than in non-topless ones. A police officer further admitted that other parts of the city generated substantially more complaints with regard to crimes such as prostitution, drugs and violence. A lieutenant in the Florida Division of Alcoholic Beverages and Tobacco admitted that complaints about the particular crime of B-drinking had already been considerably reduced in...