Marco Lounge, Inc. v. City of Federal Heights

Citation625 P.2d 982
Decision Date02 March 1981
Docket NumberNo. 79SA535,79SA535
Parties7 Media L. Rep. 1229 MARCO LOUNGE, INC., a Colorado corporation, Plaintiff-Appellant, v. The CITY OF FEDERAL HEIGHTS, a municipal corporation, Defendant-Appellee.
CourtSupreme Court of Colorado

Bayer, McLean, Carey & McGee, P. C., Robert L. McGee, Jr., Gary L. Palumbo, Denver, for plaintiff-appellant.

Tallmadge, Tallmadge, Wallace & Hahn, P. C., John W. Smith, Donald F. D'Antuono, Denver, for defendant-appellee.

LOHR, Justice.

Marco Lounge, Inc. (Marco) appeals from an order of the Adams County district court denying Marco's motion for a preliminary injunction against the City of Federal Heights (City) to prohibit enforcement of the City's order that Marco cease and desist from presenting live, nude entertainment in the bar which it owns and operates in the City. We conclude that the ordinance upon which the cease and desist order was based violates the guarantee of freedom of speech under the First and Fourteenth Amendments 1 and therefore reverse the trial court's order.

The City of Federal Heights adopted the following zoning ordinance prior to the events which gave rise to this litigation:

                "10-1-5 ZONING DISTRICTS: In order to carry out
                the provisions of this Ordinance, the Town is hereby
                divided into the following zoning districts
                R1    Residential District           R3 Apartment District
                R2    Duplex District                R4 Mobile Homes
                B1    Business District              C1 Commercial District
                I     Industrial District            EI Entertainment District
                USES PERMITTED AND DENSITY SECEDULE IN
                THE E1 DISTRICT
                      A. Permitted Uses
                          1. Massage Parlors           2. Any place providing
                          3. Outlets for the              live, nude
                              sale of                     entertainment
                              pornographic material
                          4. Nothing herein shall apply to premises
                              licensed under the State Liquor Code, except
                              that live, nude entertainment shall be
                              prohibited in all such premises
                

B. E-1 ZONING BOUNDARY ORDINANCES WILL BE INITIATED AND ENACTED SOLELY BY THE QUALIFIED ELECTORS OF THE TOWN OF FEDERAL HEIGHTS, CO, UNDER TITLE 1, ARTICLE 40 OF THE COLORADO REVISED STATUTES OF 1973.

C. THE BOARD OF TRUSTEES OF THE TOWN OF FEDERAL HEIGHTS hereby determines that an emergency exists affecting the health, welfare and safety of the citizens of the Town, because of an anticipated influx of the types of uses described herein and, therefore, this ordinance shall become effective immediately upon its posting at three public places within the Town after enactment by the Board of Trustees."

Also part of the City's zoning ordinance is the following provision:

"The listing of any use in said schedule as being permitted in any particular district shall be deemed to be an exclusion of such use from any other district unless the use is specifically permitted in such other district under the language set forth in the schedule."

Marco's bar is licensed under the state liquor code and is situated in a C1 commercial district. No part of the City is zoned E1, the only zoning district in which live, nude entertainment is permitted.

Prior to September 27, 1978, Marco was presenting live, nude entertainment in its bar. On that date the City served a letter upon Marco requiring that it cease and desist from such activity. Marco then brought this action in district court and sought and obtained a temporary restraining order prohibiting enforcement of the City's cease and desist order. Later, after a hearing on a motion for preliminary injunction, the trial court upheld the validity of the zoning ordinance and of the cease and desist order issued to Marco, denied Marco's application for preliminary injunction, and vacated the temporary restraining order. Marco has appealed from that ruling. 2

Marco challenges the validity of the ordinance upon the grounds that it violates the constitutional guarantee of freedom of speech and denies Marco the equal protection of the laws. We find that the freedom of speech challenge is meritorious and so do not reach the equal protection issue.

I.

Before we consider the constitutional questions, we must determine whether Marco has standing to raise them.

A.

In the usual case "(t)he proper inquiry on standing is whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977); accord, Denver Urban Renewal Authority v. Byrne, Colo., 618 P.2d 1374 (1980); Dodge v. Department of Social Services, Colo., 600 P.2d 70 (1979). Here, the City's order prohibiting live, nude entertainment in Marco's bar plainly establishes injury in fact to Marco's interest in presenting such entertainment. Under the Wimberly test, therefore, our inquiry must focus on whether Marco's interest is legally protected.

The City does not contend that all live, nude entertainment is obscene, and thus not protected by the First Amendment. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It recognizes, as it must, that included within live, nude entertainment are forms of communication and expression which are protected by the First Amendment. See Erznoznik v. the City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Doran v. Salem, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Felix v. Young, 536 F.2d 1126 (6th Cir. 1976); Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir. 1975).

The City's position is that live, nude entertainment can be prohibited in state liquor-licensed establishments notwithstanding the fact that such a prohibition extends to constitutionally protected expression. See California v. LaRue, supra. Thus, the City contends that Marco lacks a legally protected interest upon which to base its challenge to the zoning ordinance. We disagree.

B.

We predicate our conclusion that Marco has standing to challenge the City's zoning ordinance upon an exception to the Wimberly rule recognized in First Amendment cases. In such cases the rules of standing are broadened to permit parties to assert the facial unconstitutionality of laws or regulations which may create a chilling effect on the freedom of expression of persons not before the court, even though the laws or regulations could be constitutionally applied to the parties to the case. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Williams v. City and County of Denver, Colo., 622 P.2d 542 (1981); Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975). Such laws or regulations are said to be overbroad. Id.

The reason for relaxation of traditional rules of standing in First Amendment cases is that:

" 'The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.' "

Bolles v. People, supra, at 396, 541 P.2d at 82, quoting Broadrick v. Oklahoma, supra, 413 U.S. at 612, 93 S.Ct. at 2915, 38 L.Ed.2d at 840.

The doctrine of overbreadth must be applied with caution, in recognition of the interest of the state in controlling harmful, constitutionally unprotected conduct. See Broadrick v. Oklahoma, supra. That principle was developed in Broadrick as follows:

"It remains a 'matter of no little difficulty' to determine when a law may properly be held void on its face and when 'such summary action' is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect at best a prediction cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep."

Id. at 615, 93 S.Ct. at 2917, 37 L.Ed.2d at 842. As the ability to narrow the applicability of a statute by construction increases, the appropriateness of allowing a party within the legitimate sweep of the statute to challenge it for overbreadth diminishes. Id. Also, overbreadth challenges by such a party are less favored if the statute is not censorial, i. e., if it is neutral in application rather than directed at particular groups or viewpoints. Id.

For the purpose of the Broadrick test, we assume that live, nude entertainment could be proscribed in state liquor-licensed establishments under California v. LaRue, supra, i. e., that the "plainly legitimate sweep" of the ordinance extends to prohibition of live, nude entertainment in those establishments. 3 But this ordinance also affects theaters,...

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