Norfolk 302, LLC v. Vassar, Civil Action No. 2:07cv203.

• Decision Date: 21 November 2007
• Docket Number: Civil Action No. 2:07cv203.
• Citation: 524 F.Supp.2d 728
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NORFOLK 302, LLC, t/a, Have A Nice Day Café, et al., Plaintiffs, v. Esther H. VASSAR, Chair, Virginia Department of Alcoholic Beverage Control Board, et al., Defendants.

524 F.Supp.2d 728

NORFOLK 302, LLC, t/a, Have A Nice Day Café, et al., Plaintiffs, v. Esther H. VASSAR, Chair, Virginia Department of Alcoholic Beverage Control Board, et al., Defendants.

Civil Action No. 2:07cv203.

United States District Court, E.D. Virginia, Norfolk Division.

November 21, 2007.

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James Neal Insley, Neal Insley PLC, Kevin Edward Martingayle, Stallings Bischoff PC, Virginia Beach, VA, for Plaintiffs.

Mike Melis, Commonwealth of Virginia, Richmond, VA, for Defendants.

OPINION AND ORDER

WALTER D. KELLEY, JR., District Judge.

In 2002, the United States Court of Appeals for the Fourth Circuit declared unconstitutional North Carolina's effort to ban sexually suggestive conduct in establishments that serve alcoholic beverages. Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir.2002) (hereinafter "Carandola I"). Despite this highly publicized decision, the Commonwealth of Virginia did not amend its alcoholic beverage control statutes and regulations to remedy the overbreadth problem identified by the Fourth Circuit. Virginia's Alcoholic Beverage Control ("ABC") laws remained unchanged even though the Court of Appeals later approved as constitutional a "carveout" provision that exempts sexually suggestive matters of serious literary or artistic interest. Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074 (4th Cir.2006) (hereinafter "Carandola II").

Plaintiffs own various restaurants and bars in Virginia Beach and Norfolk that serve alcoholic beverages pursuant to licenses granted by the Virginia ABC Board (the "ABC Board"). In this action they seek to enjoin the ABC Board from enforcing certain statutes and a regulation strikingly similar to the laws declared unconstitutional in Carandola I. For the reasons set forth below, the Court awards plaintiffs most of the preliminary injunctive relief that they seek.

I. Facts and Procedural History

The Virginia General. Assembly enacted the Alcoholic Beverage Control Act, Va. Code § 4.1-100, et seq., "to legalize, regulate and control the ... drinking and use of alcohol." Miller v. Commonwealth, 172 Va. 639, 2 S.E.2d 343, 346 (1939). An important component of this comprehensive statutory scheme is regulation of the establishments that serve intoxicants. Among other things, the ABC Board is authorized to suspend and/or revoke the ABC licenses of establishments that offer certain types of sexually suggestive entertainment or allow patrons to engage in sexually suggestive conduct. These restrictions lie at the heart of Plaintiffs' constitutional challenge.

Of the statutes at issue, Va.Code Ann. § 4.1-225(1)(h) covers the broadest swath of behavior. The statute allows the ABC Board to sanction a licensee for allowing patrons to engage in any of three varieties of conduct on its premises. It states:

The Board may suspend or revoke any license ... if it has reasonable cause to believe that:

1. The licensee ...

. . . . .

h. has allowed noisy, lewd or disorderly conduct upon the licensed premises....

The ABC Board implemented this statute by promulgating a regulation, 3 Va. Admin. Code § 5-50-140, that purports to define some of the prohibited conduct. The regulation states:

While not limited thereto, the board shall consider the following conduct upon any licensed premises to constitute lewd or disorderly conduct:

1. The real or simulated display of any portion of the genitals, pubic hair, or buttocks, or any portion of the breast below the top of the areola, by any employee, or by any other person; except that when entertainers are on a platform or state and reasonably separated from the patrons of the establishment, they shall be in conformity with subdivision 2;

2. The real or simulated display of any portion of the genitals, pubic hair or anus by an entertainer, or any portion of the areola of the breast of the female entertainer. When not on a platform or stage and reasonably separate from the patrons of the establishment, entertainers shall be in conformity with subdivision 1;

3. Any real or simulated act of sexual intercourse, sodomy, masturbation, flagellation, or any other sexual act prohibited by law, by any person, whether an entertainer or not; or

4. The fondling or caressing by any person, whether an entertainer or not, of his or of another's breast, genitals, or buttocks.

Having addressed patron conduct in section 4.1-225(1)(h), the General Assembly turned its attention to conduct sponsored by the licensed establishment. Va.Code Ann. § 4.1-226(2) states, in pertinent part:

The Board shall suspend or revoke any license ... if it finds that:

. . . . .

2. In the licensed establishment of a mixed beverage licensee there (i) entertainment of a lewd, obscene, or lustful nature including what is commonly called stripteasing, topless entertaining, and the like, or which has employees who are not clad both above and below the waist or who uncommonly expose the body....

Finally, both licensee and patron conduct are governed by Va.Code. Ann. § 4.1-325(A)(11)-(13), which states:

A. [N]o mixed beverage licensee nor any agent or employee of such licensee shall:

. . . . .

11. Allow any immoral, lewd, obscene, indecent or profane conduct, language, literature, pictures, performance or materials on the licensed premises;

12. Allow any striptease act, or the like on the licensed premises;

13. Allow persons connected with the licensed business to appear nude or partially nude;....

After conducting two hearings and one telephonic conference, the Court preliminarily enjoined enforcement of all of the language highlighted above, except for the prohibition against "obscene" conduct. (Docket No. 23.) With respect to section 4.1-225(1)(h) and its implementing regulation, the Court held that the word "noisy" is unconstitutionally vague, and that the phrase "lewd or disorderly conduct" is unconstitutionally overbroad. Regarding sections 4.1-226(2) and 4.1-325(A)(11)(13), the Court ruled that all of the highlighted language, except the word "obscene," is overbroad. This Opinion explains the reasoning underlying the Court's rulings.

II. Analysis

A. Standing

Before the Court can weigh the merits of Plaintiffs' constitutional challenges, it must determine whether they have standing to maintain an action that complains of restrictions on matters of serious literary or artistic value. Plaintiffs operate bars and restaurants that trade under such names as "Hammerheads" and "The Peppermint Beach Club." Plaintiffs' establishments are more likely to sponsor jello shooter contests than present an erotic version of Shakespeare or The Canter bury Tales.

Normally, "a litigant only has standing to vindicate his own constitutional rights." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). However, this general principle does not apply in cases where a plaintiff challenges the constitutionality of a statute on the basis of overbreadth or vagueness. See id. at 798 104 S.Ct. 2118 (excepting plaintiff bringing overbreadth claim from traditional standing requirements); Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (same for vagueness claim).

This exception to ordinary standing rules derives not from any special quality of the plaintiff, but rather, from the nature of a facial attack. In this type of action, "a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question." City of Chi. v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). He may litigate his claim on behalf of others "who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Plaintiffs therefore have standing to maintain their action for injunctive relief, regardless of whether their own speech is threatened by that which is unconstitutional.

B. Preliminary Injunction Test

The issuance of a preliminary injunction turns on four considerations: "(1) the likelihood or irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merit s, and (4) the public interest." Carandola I, 303 F.3d at 511 (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1992)) (internal quotation marks omitted); see also Blackwelder Furniture Co. of Statesville, Inc. v. Seilig Mfg. Co., 550 F.2d 189, 193 (4th Cir.1977) (listing factors). Courts customarily analyze each of the factors in numerical order. However, in the context of a facial constitutional attack, the likelihood of irreparable harm to the plaintiff hinges entirely on whether the statute in question offends the constitution. Carandola I, 303 F.3d at 511; Mom N Pops, Inc. v. City of Charlotte, N.C., 162 F.3d 1155, 1998 WL 537928 (4th Cir.1998) (unpublished table decision). The first prong is thus "inseparably linked" with the third, so the Court will begin with an analysis of Plaintiffs' chance of success on the merits. Carandola I, 303 F.3d at 511.

1. Likelihood of Success on the Merits

a. Overbreadth Challenge

[5-8] A legislature must carefully balance constitutional and societal concerns when drafting a statute that implicates First Amendment rights.

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.

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