Moody v. Board of County Com'rs

• Decision Date: 05 April 1985
• Docket Number: No. 56774,56774
• Citation: 697 P.2d 1310,237 Kan. 67
• Parties: Melvin MOODY d/b/a Foxy Ladies Athletic Club, Appellant, v. BOARD OF COUNTY COMMISSIONERS of the County of Shawnee, and Gene Olander, in His Official Capacity as District Attorney, Kansas Third Judicial District, and Ed Ritchie, in His Official Capacity as Sheriff of Shawnee County, Appellees.
• Court: Kansas Supreme Court

Page 1310

697 P.2d 1310

237 Kan. 67

Melvin MOODY d/b/a Foxy Ladies Athletic Club, Appellant, v. BOARD OF COUNTY COMMISSIONERS of the County of Shawnee, and Gene Olander, in His Official Capacity as District Attorney Kansas Third Judicial District, and Ed Ritchie, in His Official Capacity as Sheriff of Shawnee County, Appellees.

No. 56774.

Supreme Court of Kansas.

April 5, 1985.

Syllabus by the Court

1. Principles and guidelines, which come into play upon the determination of challenges to the constitutionality of legislative enactments, are stated and applied.

2. In an action wherein a county charter resolution providing for the licensing and regulation of adult entertainment studios is challenged on constitutional grounds, the record is examined and it is held: the Resolution does not contain any significant restraint on the exercise of protected First Amendment rights; the Resolution does not permit unreasonable warrantless inspections in violation of the Fourth Amendment; and the Resolution does not violate the equal protection clause of the Fourteenth Amendment upon any of the grounds urged.

Donald R. Hoffman, of Humpage, Berger and Hoffman, of Topeka, argued the cause and was on the brief for appellant.

Barbara Bennington Hogberg, Shawnee County sheriff's dept., argued the cause, and Joseph W. Zima, Asst. Shawnee County counselor, and Gene M. Olander, Shawnee County Dist. Atty., were with her on the brief for appellees.

MILLER, Justice:

The plaintiff, Melvin Moody, d/b/a Foxy Ladies Athletic Club, appeals from the final decision and order of the District Court of Shawnee County in this declaratory judgment action, upholding the constitutionality of Shawnee County Home Rule Resolution No. HR 83-12 and denying injunctive relief. Defendants and appellees are the Board of County Commissioners of Shawnee County; Gene M. Olander, the district attorney; and Ed Ritchie, the sheriff.

HR 83-12 was adopted by the Board of County Commissioners of Shawnee County on October 12, 1983. No challenge as to the regularity of the adoption proceedings is made. The resolution is captioned: "A RESOLUTION PROVIDING FOR THE LICENSING AND REGULATION OF ADULT ENTERTAINMENT STUDIOS IN SHAWNEE COUNTY, KANSAS, PROSCRIBING CERTAIN ACTS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF." The findings of the board and the purposes of the act are stated in Section 1 as follows:

"(a) The Board of County Commissioners of Shawnee County, Kansas, finds:

"(1) That heterogeneous masturbatory and oral sex services are being provided for a consideration at adult entertainment studios in Shawnee County.

"(2) That offering and providing such services creates conditions that generate prostitution and other crimes.

"(3) That employees of adult entertainment studios have been convicted of prostitution occurring in adult entertainment studios and other places in Shawnee County.

"(4) That the continued unregulated operation of adult entertainment studios would be detrimental to the general welfare, health, and safety of the citizens of Shawnee County.

"(b) It is the purpose of this Resolution to promote and secure the general welfare, health, and safety of the citizens of Shawnee County."

The Resolution is quite lengthy and will not be set out in full. Pertinent portions will be quoted or summarized as necessary later in this opinion. The Resolution defines adult entertainment studio and provides rigid standards for the licensing thereof. It also defines entertainers who provide entertainment within the studios and establishes rigid standards for permits, which must be secured by each entertainer. It establishes fees for licenses and permits, and for the renewal thereof. It sets forth provisions by which licenses or permits may be revoked upon notice and hearing. It establishes hours of operation for the studios, and states the responsibilities of the operators. It prohibits various unlawful sexual acts. It provides penalties (a fine not exceeding $1,000 or confinement in the county jail for not more than six months, or both) for violation of various sections of the Resolution. It contains a severability clause. Finally, the Resolution was to become effective thirty days after its publication.

A few days prior to the effective date plaintiff commenced this declaratory judgment action and sought a temporary restraining order. Upon hearing counsel, the trial court temporarily restrained the enforcement of the Resolution. Thereafter, counsel submitted briefs and made oral argument; and approximately ninety days after the petition was filed the trial court determined the action on its merits, upholding the Resolution and dissolving the temporary order. The trial court's carefully prepared memorandum--containing conclusions of law with which we are in substantial agreement--reads as follows:

"CONCLUSIONS OF LAW

"1. Declaratory judgments are controlled by K.S.A. 60-1701 (1983). The function of the statute is to provide speedy and flexible methodology for the determination of rights and obligations in cases of 'actual controversy' where there is 'actual antagonistic assertion and denial of right.' See 5 Vernon's Kan.Stat.Ann. § 60-1701, p. 488 (1967).

"2. It has long been settled in Kansas under the Declaratory Judgment Act that courts have the jurisdiction to determine the validity of statutes, resolutions or ordinances before a party undertakes to act in apparent violation thereof. That is the purpose and intent of the remedial relief contemplated in the act. Acupuncture Society of Kansas v. Kansas State Bd. of Healing Arts, 226 Kan. 639, 647, 602 P.2d 1311 (1979); State Assoc. of Chiropractors v. Anderson, 186 Kan. 130, 135, 348 P.2d 1042 (1960).

"3. The general rule of standing is that unconstitutional governmental action can only be challenged by a person directly affected and such a challenge cannot be made by invoking the rights of others. State v. Thompson, 221 Kan. 165, Syl. p 4, 558 P.2d 1079 (1976). However, a plaintiff may raise the rights of interrelated persons when attacking the validity of an act on its face. Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 636 (D.Kan.1981). In addition, there need not be an actual criminal prosecution underway for the case or controversy requirement to be met so long as the threat of criminal prosecution is not speculative or imaginary. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).

"4. There is a special rule of standing when the statute involved purports to regulate or proscribe the rights of speech or press protected by the First Amendment. Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular party, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. State v. Allen & Rosebaugh, 1 Kan.App.2d 32, 42, 562 P.2d 445 (1977), citing from Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S.Ct. 1686, 1690-91, 29 L.Ed.2d 214 (1971) [White, J., dissenting].

"5. The board of county commissioners is given home rule powers to 'transact all county business and perform all powers of local legislation and administration it deems appropriate' subject to limitations, restrictions and prohibitions that have no bearing on this case. K.S.A. 19-101a (1983 Supp.).

"6. A state possesses an inherent power to regulate certain businesses and professions for the good of society. This police power gives a state the right to act to protect and promote public health, safety, morals, peace, quiet and law and order. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614-15, 576 P.2d 221 (1978). The police power of the state extends not only to the protection of the public health, safety and morals, but also to the preservation and promotion of the public welfare. State v. Consumers Warehouse Market, 183 Kan. 502, 508, 329 P.2d 638 (1958). If a statute falls within the exercise of the police power of the state, those subject to that law must submit to its provisions, whatever the effect may be upon property or business. Burlingame v. Thompson, 74 Kan. 393, 394, 86 P. 449 (1906); State ex rel. Stephan v. Lane, 228 Kan. 379, 384, 614 P.2d 987 (1980).

"7. The general presumptions in favor of the constitutionality of a statute, resolution or ordinance are stated in Leiker v. Empl. Sec. Bd. of Review, 8 Kan.App.2d 379, 659 P.2d 236 (1983):

'Syl. p 4 The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution.

'Syl. p 5 In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

'Syl. p 6 Statutes are not stricken down unless the infringement of superior law is clear beyond substantial doubt.

'Syl. p 7 The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the court does not consider the statute in the public interest of the state, since, necessarily what the views of the members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of the court to determine the wisdom of legislation touching the public interest as that is a legislative function with which the court cannot interfere.'

"8. Due process requires notice, a hearing and a method of decision which does not offend the concept of fundamental fairness. Haddock v. Bd. of Ed. U.S.D. No. 462, Cowley Co., 233 Kan. 66, 661 P.2d 368 (1983). The test...