McCrothers Corp. v. City of Mandan

Decision Date28 February 2007
Docket NumberNo. 20060127.,20060127.
Citation2007 ND 28,728 N.W.2d 124
PartiesMcCROTHERS CORP. d/b/a Tree City Bar, and Luke Berger, d/b/a Silver Dollar Bar, Plaintiffs and Appellants, v. CITY OF MANDAN, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Justin J. Vinje (argued) and Ralph A. Vinje (appeared), Vinje Law Firm, Bismarck, N.D., for plaintiffs and appellants.

Malcolm H. Brown, Malcolm H. Brown, P.C., Bismarck, N.D., for defendant and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] McCrothers Corporation, doing business as the Tree City Bar, and Luke Berger, doing business as the Silver Dollar Bar, appealed from a summary judgment dismissing their actions challenging the constitutionality of Mandan city ordinances regulating exotic dancing and adult cabaret entertainment. We conclude the ordinances do not violate the free speech rights of McCrothers and Berger and did not cause an unconstitutional taking of their property without just compensation. We affirm.

I

[¶ 2] Since at least 1979, Mandan has prohibited "[a]ppearances, entertainment or performances of any type consisting of or containing any nude performer or nude dancer, or topless female dancer" in alcoholic beverage licensed premises. Mandan Code of Ordinances § 12-01-18(2)(d) (1994). In June 2003, the Mandan Board of City Commissioners adopted ordinances regulating exotic dancing patterned after ordinances this Court upheld more than 25 years ago in Olson v. City of West Fargo, 305 N.W.2d 821 (N.D.1981). Ordinance No. 961 amended the Mandan Code of Ordinances to prohibit alcoholic beverage licensees from hosting "entertainment for more than one day a week any given week without first having obtained a cabaret license . . ." Ordinance No. 961 further provides:

5. No live performances are permitted on an alcoholic beverage licensed premise which contains any form of dancing. Such prohibition on dancing does not include the incidental movement or choreography of singers or musicians which are made in connection with their singing or playing of a musical instrument, provided the dancing does not include the acts prohibited under this section. This restriction applies to all alcoholic beverage licensed premises whether or not they have a cabaret license.

"Live performances" are defined under Mandan Code of Ordinances § 12-01-18(1)(b) as "any person who for consideration, monetary or otherwise, performs in person on a licensed premises as a singer, musician, dancer, comedian, model or any other type of entertainer." Ordinance No. 961 prohibits live performances on alcoholic beverage licensed premises involving "the removal of clothing, garments or any other costume," and these restrictions apply to all alcoholic beverage licensed premises "whether or not they have a cabaret license."

[¶ 3] Ordinance No. 963, which created Chapter 21-10 of the Mandan Code of Ordinances, declares the purpose for regulating "adult entertainment establishments," defines "[a]dult cabaret entertainment," "[a]dult establishments," "[a]dult uses," and "[s]pecified sexual activities," and restricts the areas within the city in which the establishments may be located. Ordinance No. 963 also provided an amortization period of two years from June 27, 2003, for nonconforming uses to continue operations, and provides penalties for violations of the chapter.

[¶ 4] Ordinance No. 964 again declares the purposes for regulating adult entertainment establishments, sets forth additional findings, defines "[a]dult [e]ntertainment" and other terms, and details the procedures for obtaining an "Adult Cabaret License." Ordinance No. 964 further outlines the standards of conduct for operation of the establishments and the procedures for suspension and revocation of licenses.

[¶ 5] McCrothers owns and operates the Tree City Bar and Berger owns and operates the Silver Dollar Bar. Both bars are retail on-sale alcoholic beverage businesses located adjacent to one another on Main Street in Mandan. For 14 and 22 years, respectively, the Tree City Bar and the Silver Dollar Bar offered entertainment in the form of exotic dancing, which is now defined by the Mandan city ordinances as adult entertainment. When a third party sought to open another adult entertainment establishment on Main Street, the City Commissioners took action to enact the ordinances. The district court described how the Mandan ordinances affected these bars:

Although no evidence was offered as to the precise nature of the dancing entertainment that was offered at both the Silver Dollar Bar and the Tree City Bar, it appears it would be classified as adult entertainment. Thus, under these three ordinances, neither the Silver Dollar Bar nor the Tree City Bar can offer this adult entertainment and hold a retail alcoholic beverage license at the same time. And if they want to offer adult entertainment without alcoholic beverages, they must first obtain a cabaret license, and then they can only operate such a business in areas zoned MB, MC and MD Industrial, which would require the removal of their businesses from their current Main Street locations.

[¶ 6] In June 2005, McCrothers and Berger brought separate actions seeking to enjoin enforcement of the ordinances on the ground that application of the ordinances to them constituted a taking of their property in violation of N.D. Const. art. I, § 12, and the Fifth Amendment to the United States Constitution. The district court issued orders to show cause and temporary restraining orders pending hearings, and the parties stipulated to consolidate the actions. The court vacated the temporary injunction effective September 9, 2005. On October 4, 2005, the court granted a motion by McCrothers and Berger to amend their complaints to allege that the ordinances violated their rights to freedom of speech under the First Amendment to the United States Constitution. The parties filed cross-motions for summary judgment. Following a hearing on the motions, the district court dismissed the complaints, ruling that the Mandan ordinances did not violate the free speech rights of McCrothers and Berger and did not result in an unconstitutional taking of their property without just compensation.

II

[¶ 7] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Leet v. City of Minot, 2006 ND 191, ¶ 12, 721 N.W.2d 398. Whether the district court properly granted summary judgment is a question of law that we review de novo on the record. State ex rel. N.D. Housing Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 8, 720 N.W.2d 425. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. State ex rel. Stenehjem v. FreeEats Com., Inc., 2006 ND 84, ¶ 4, 712 N.W.2d 828.

[¶ 8] Throughout these proceedings, the parties have maintained that there are no disputed issues of material fact, and the only issues to be resolved are questions of constitutional law.

III

[¶ 9] McCrothers and Berger contend that Mandan Ordinance Nos. 961, 963, and 964 violate their First Amendment right to free speech.

A

[¶ 10] Nude or semi-nude dancing is expressive conduct protected by the First Amendment. City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); see also Olson, 305 N.W.2d at 824. Nevertheless, expressive conduct protected by the First Amendment may be regulated. Pap's A.M., at 289, 120 S.Ct. 1382. In analyzing the constitutionality of laws affecting expressive conduct, the Supreme Court has explained:

To determine what level of scrutiny applies to the ordinance at issue here, we must decide "whether the State's regulation is related to the suppression of expression." Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also United States v. O'Brien, 391 U.S. [367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)]. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard from O'Brien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533; United States v. O'Brien, supra, at 377, 88 S.Ct. 1673. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533.

Id. McCrothers and Berger argue the Mandan ordinances should be subject to strict judicial scrutiny because they focus on suppressing the content of speech.

[¶ 11] McCrothers and Berger rely on the Eighth Circuit Court of Appeals' decision in Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir.1981) (en banc), to support their argument. In Avalon, at 660, the plaintiff obtained building permits to construct a movie theatre and bookstore in a commercial-zoned area of North Little Rock, Arkansas, and planned to show sexually-oriented films at the theatre and operate an adult bookstore at the site. On the day the plaintiff obtained a privilege license to operate an adult bookstore, the city council convened a special meeting and enacted an emergency zoning ordinance that prohibited, within 100 yards of a residential area, the exhibition and sale of any film in which certain specified acts were depicted. Id. The plaintiff's theatre was located within 100 yards of a residential area, and the plaintiff challenged the constitutionality of the ordinance on First Amendment grounds. Id. In holding the ordinance unconstitutional, the court stated:

Section 5 of the North Little Rock Ordinance, in part, states:

The City Council has found and determined that the prohibition of certain...

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