Nightlife Partners, Ltd. v. City of Beverly Hills

Decision Date11 February 2004
Docket NumberNo. CV01-01563 DDP (SHx).,CV01-01563 DDP (SHx).
Citation304 F.Supp.2d 1208
CourtU.S. District Court — Central District of California
PartiesNIGHTLIFE PARTNERS, LTD.; et al., Plaintiffs, v. CITY OF BEVERLY HILLS, Defendant.

Roger Jon Diamond, Roger J. Diamond Law Offices, Santa Monica, CA, Bradley J. Shafer, Shafer & Associates, Lansing, MI, for plaintiffs.

Mitchell E. Abbott, Terence Rex Boga, Laurence S. Wiener, Patrick K. Bobko, Richards, Watson & Gershon, Los Angeles, CA, for defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY

JUDGMENT

PREGERSON, District Judge.

This matter comes before the Court on the defendant City of Beverly Hills' motion for summary judgment, which was filed on November 20, 2003. After reviewing the materials submitted by the parties and hearing oral argument, the Court grants in part and denies in part the motion and adopts the following order.

I. Background
A. Factual History1

The plaintiffs in this action are Nightlife Partners, Ltd. ("Nightlife"), Entertainment Associates of L.A., Inc. ("Associates"), Deja Vu Showgirls of Beverly Hills, L.L.C. ("Showgirls"), and Deja Vu Consulting, Inc. ("Deja Vu") (collectively hereinafter the "business plaintiffs"). The business plaintiffs are either the owners or operators of an establishment known as The Beverly Club (the "Club"),2 located in the basement of a one-story building at 424 North Beverly Drive, in the City of Beverly Hills, California. The plaintiffs Jane Doe I and Jane Doe II are professional dance entertainers who have either performed at the Club in the past, or desire to perform at the Club in the future.

In 1998, the Club began operating on the premises as a nightclub and/or adult cabaret. When it opened, the Club featured female dancers who performed topless. (Pls' Mot. at 1.) Subsequently, the Club switched to presenting live dance entertainment it characterizes as "bikini dancing." (Id. at 4.)

On July 2, 1998, after the Club was already open, the defendant City of Beverly Hills (the "City") enacted an adult entertainment regulatory ordinance, Ordinance No. 98-0-2302 (the "Ordinance"), known as "Chapter 7," which amended the Beverly Hills Municipal Code ("B.H.M.C."). As originally enacted, the Ordinance defined businesses as "adult cabarets" or "adult theaters" that presented, as a regular and substantial course of conduct, live performances that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas. B.H.M.C. §§ 4-7.102(a)(3) & (5).

After the passage of Chapter 7, the Club attempted to exempt itself from regulation under the Ordinance by changing formats and presenting exclusively "bikini dancing."3

In 1999, as part of amendments to the Ordinance adopted pursuant to Ordinance No. 99-0-2337, effective November 19, 1999, the terms "adult cabaret" and "adult theater" were amended to include (and regulate) entertainment facilities that presented "any semi-nude person." B.H.M.C. §§ 4-7.102(a)(3) & (5) (Pls' Mot. Ex. B at 45). In addition, the 1999 amendments prohibited, for the first time, performances in which entertainers exposed "specified anatomical areas." B.H.M.C. § 4-7.207(1).4

On November 8, 2001, the City enacted Ordinance No. 01-0-2386, which amended Chapter 7 to define semi-nude as: "a state of dress in which clothing covers no more than the genitals, pubic region, buttock, areola and nipple of the female breast, as well as portions of the body covered by supporting straps or devices. Examples of `semi-nude' include, without limitation, a state of dress consisting of a bikini outfit or equivalent clothing." B.H.M.C. § 4-7.102(m).

B. Procedural History

On April 8, 2002, the parties' cross-motions for summary judgment came before the Court for oral argument. The plaintiffs also sought the following relief: (1) to enjoin certain challenged provisions of the B.H.M.C. as unconstitutional as applied to the plaintiffs and on their face; and (2) to enjoin the City from enforcing the conditional use permit previously issued for the premises now occupied by the Beverly Club. Immediately prior to the April 8, 2002 hearing, the Court distributed a tentative ruling to the parties. At the conclusion of oral argument, the Court invited the parties to submit limited supplemental briefing. On April 26, 2002, the City Council of Beverly Hills unanimously adopted Ordinance No. 02-0-2396, amending the City's Adult Entertainment Regulatory Ordinance. (Def's Suppl. Brief Ex. A.) These amendments were adopted in direct response to certain issues that the Court raised in its tentative ruling.

As a result of the April 26, 2002 amendments, many of the Ordinance's provisions became materially different from the provisions that existed when the plaintiffs filed their motion for summary judgment on January 28, 2002. Accordingly, in the Court's June 19, 2002 Order, the Court denied preliminary injunctive relief to the plaintiffs on the ground that the City could not be enjoined from enforcing an ordinance that no longer existed. (See 06/19/02 Order at 4:19-20.) Having denied injunctive relief to the plaintiffs, the Court proceeded to address only the parties' cross-motions for summary judgment. In its June 19, 2002 Order, the Court ruled as follows:

The Court GRANTS the plaintiffs' motion for partial summary judgment on the grounds that the following portions of the Ordinance are unconstitutional: (1) the Ordinance's definition of semi-nude; and (2) the Ordinance's "no-touching" provision.

The Court GRANTS the City's motion for summary judgment on the grounds that the following portions of the Ordinance are constitutional: (1) the Ordinance's fee provisions; (2) the permit revocation and suspension procedures; (3) the inspection provisions; and (4) the processing of applications and judicial review provisions.

The Court finds that genuine issues of material fact exist, which preclude the Court from ruling on the constitutionality of the related provisions, with regard to the following issues: (1) whether the Ordinance's "[restricted]tipping" provisions, B.H.M.C. §§ 4-7.207(k)(5) & (6), act as an absolute bar to the plaintiffs' operation in the market; (2) whether the Ordinance's dancer-patron separation requirements, B.H.M.C. § 4-7.207(k)(1), function as an absolute bar to the market, as well as the City's enforcement practices regarding this provision; and (3) whether the personal disclosure requirements of B.H.M.C. § 4-7.302(b) inhibit adult entertainers from performing in the City.

The plaintiff has succeeded in casting doubt on the City's rationale for: (1) amending the Ordinance in 1999 to prohibit the exposure of "specified anatomical areas" (B.H.M.C. § 2.207.7(1)); and (2) amending the definition of "semi-nude" in 2001 (B.H.M.C. § 2-207.1(m)). Pursuant to the directive of the Supreme Court in Alameda Books, the burden now shifts back to the City. Within fourteen days from the date of this Order, the Court orders that the City supplement the record with evidence renewing support for a theory that justifies these amendments to the Ordinance. This supplemental briefing is not to exceed fifteen (15) pages. Within fourteen days from the date that the City submits this supplemental briefing to the Court (and serves the plaintiff with a copy), the plaintiff may submit a responsive brief of no more than fifteen pages (15). Unless the Court determines that argument is necessary, the Court will take the matter under submission and rule without oral argument.

The Court finds that principles of federalism and comity make it appropriate for this Court to abstain from considering or ruling upon the constitutionality of the prior permit renewal provision, B.H.M.C. § 4-7.214, which is the subject of a pending state court administrative mandamus proceeding.

The Court finds that the conditional use permit process of the B.H.M.C. relating to off-site parking is content-neutral, and does not unconstitutionally interfere with the plaintiffs' ability to operate their business. The Court therefore DENIES the plaintiffs' motion for summary judgment and injunctive relief on this claim.

(06/19/02 Order at 58-59.)

Pursuant to the Court's June 19, 2002 Order, on July 3, 2002 and July 23, 2002, respectively, the City and the plaintiffs submitted supplemental post-hearing memoranda. On September 5, 2002, the Court issued an Order Re: Supplemental Briefing (1) denying the plaintiffs' motion for summary judgment that the 1999 and 2001 amendments to Chapter 7 are unconstitutional, and (2) denying the plaintiffs' request to permanently enjoin enforcement of the 1999 and 2001 amendments. (See 09/05/02 Order Re: Supplemental Briefing at 8:9-12.)

On September 20, 2002, the plaintiffs filed a motion for reconsideration of the Court's Orders of June 19, 2002 and September 5, 2002. The Court issued an Order denying the plaintiffs' motion for reconsideration on October 29, 2002.

Thereafter, the plaintiffs filed an appeal from the Court's Orders. The Ninth Circuit summarily dismissed the appeal on August 19, 2003.

On November 20, 2003, the City filed the instant motion for summary judgment, seeking to terminate the litigation or, alternatively, to narrow the issues remaining to be tried.

II. Legal Standards
A. Summary Judgment

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the "mere existence of a scintilla of evidence" in support of the nonmoving party's claim is insufficient to defeat...

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