Odle v. Decatur County, Tenn., 03-6532.

• Decision Date: 26 August 2005
• Docket Number: No. 03-6532.,03-6532.
• Citation: 421 F.3d 386
• Parties: Herbert ODLE, d/b/a Sports Club, Inc.; Sherill Douglas; Jenifer Cosimano; and Jane Does I and II, Plaintiffs-Appellants, v. DECATUR COUNTY, TENNESSEE; the Decatur County Commission; and the Decatur County Adult-Oriented Establishment Board, Defendants-Appellees, The State of Tennessee, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 386

421 F.3d 386

Herbert ODLE, d/b/a Sports Club, Inc.; Sherill Douglas; Jenifer Cosimano; and Jane Does I and II, Plaintiffs-Appellants, v. DECATUR COUNTY, TENNESSEE; the Decatur County Commission; and the Decatur County Adult-Oriented Establishment Board, Defendants-Appellees, The State of Tennessee, Intervenor-Defendant-Appellee.

No. 03-6532.

United States Court of Appeals, Sixth Circuit.

Argued: December 3, 2004.

Decided and Filed: August 26, 2005.

ARGUED: Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for Appellants. Steven A. Hart, Office of the Attorney General, Nashville, Tennessee, for Appellees. ON BRIEF: Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for Appellants. Steven A. Hart, Office of the Attorney General, Nashville, Tennessee, for Appellees.

Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.^*

OPINION

CLAY, Circuit Judge.

Herbert Odle and four dancers at his adult business (collectively "Plaintiffs") appeal the district court's grant of summary judgment in favor of Defendants Decatur County, Tennessee (the "county" or "Decatur County"), the Decatur County Commission (the "Commission"), the Decatur County Adult-Oriented Establishment Board (the "Board") and Intervenor-Defendant the State of Tennessee.¹ Plaintiffs assert that on its face Tennessee's Adult-Oriented Establishment Registration Act, Tenn.Code Ann. §§ 7-51-1101 et seq. (the "Act"), amounts to an unconstitutional prior restraint on protected expression. They also assert that a related county ordinance is overbroad and, even if not overbroad, includes substantive regulations that violate the First Amendment. After hearing oral argument, we held the case in abeyance pending the release of the en banc Court's decision in Deja Vu of Cincinnati, L.L.C. v. The Union Township Bd. of Trs., 411 F.3d 777 (6th Cir.2005), a decision that bears on Plaintiffs' prior restraint claim. We now AFFIRM in part and REVERSE in part.

I. BACKGROUND

In April 2000, Plaintiff Herbert Odle began operating Sports Club, a business where nude and semi-nude dancing is presented for entertainment and beer is sold. Sports Club is located in a rural portion of Decatur County, Tennessee. Plaintiffs Jenifer Cosimano and Sherill Douglas are dancers employed by Sports Club; as are Plaintiffs Jane Doe I and II.

On May 22, 2000, the Decatur County Commission adopted for local effect the Tennessee Adult-Oriented Establishment Registration Act, Tenn.Code Ann. §§ 7-51-1101 et seq., and pursuant to it, established the Decatur County Adult-Oriented Establishment Board. In addition, the Commission passed an ordinance (the "ordinance") prohibiting nudity and sexually suggestive conduct at a wide range of public places where alcohol is sold, served, or consumed. The Act requires all operators of "adult-oriented establishments," which Sports Club is conceded to be, to obtain licenses from the Board. The Act also regulates the entertainment offered at adult establishments. Establishments in existence at the time the Act was adopted are afforded a 120-day grace period during which to apply for a license and pursue judicial review should the license be denied.

On July 11, 2002, the Board had its first meeting and determined that the 120-day grace period for establishments already in existence would begin on that day. On July 19, 2002, the Decatur County Attorney informed Odle by letter that the county would seek to enforce the licensing provision against him if he had not obtained a license within 120 days of July 11, 2002, i.e., by November 8, 2002. Odle did not and has not applied for a license from the Board. Instead, on November 7, 2002, he and his co-plaintiffs filed a complaint in the Western District of Tennessee, naming the county, the Commission, and the Board as defendants. The complaint alleged a number of claims, only some of which are on appeal and at least one of which was deemed waived at the summary judgment stage for failure to present a discernable argument. The claims on appeal are as follows: that the Act's licensing scheme amounts to an unconstitutional prior restraint on protected expression; that unspecified substantive provisions of the Act would infringe on Plaintiffs' freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively includes substantive provisions that would violate the First Amendment if applied to adult-oriented establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are unconstitutional. The relief requested was a temporary restraining order barring enforcement of the Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both.

On December 3, 2002, the district court issued a temporary restraining order, by mutual consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted Defendant State of Tennessee's motion to intervene to defend the constitutionality of the Act. Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this appeal.

During July and August 2003, the parties engaged in discovery. The parties then filed cross-motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions against enforcement of the Act and ordinance. Another temporary restraining order issued on September 2, 2003, by consent of the parties. On October 14, 2003, the court granted Defendants' motion for summary judgment, finding each of Plaintiffs' constitutional challenges to the Act and ordinance unpersuasive; judgment was entered on October 20, 2003. Plaintiffs timely filed a notice of appeal on November 13, 2003 and the next day the district court denied their motion for a stay pending appeal. A motions panel of this Court denied Plaintiffs' motion for a stay of enforcement of the Act and ordinance on March 19, 2004. The Act and ordinance became enforceable on that day, so we may assume Plaintiffs are not operating Sports Club, at least not as an adult-oriented establishment.

II. STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo. Kalamazoo Acquisitions, L.L.C. v. Westfield Insurance Co., Inc., 395 F.3d 338, 341 (6th Cir.2005); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Because Plaintiffs present facial challenges to the Act and a related ordinance, the resolution of this appeal does not depend on the resolution of any factual disputes but rather on questions of statutory interpretation and First Amendment jurisprudence, i.e., questions of law. Finally, because this case was before the district court on cross motions for summary judgment, we accompany our holding in favor of Plaintiffs on their overbreadth claim (see discussion infra) with the instruction that the district court enter judgment in their favor on that claim, which in this case amounts to the issuance of an injunction permanently enjoining enforcement of the ordinance. See Kalamazoo Acquisitions, 395 F.3d at 342, 345; Relford v. Lexington-Fayette Urban County Gov't, 390 F.3d 452, 456-57 (6th Cir.2004).

III. DISCUSSION

A. Prior Restraint Claim

Plaintiffs, not having applied for a license, present a facial challenge to the Act's licensing scheme.² This is a colorable claim at least in theory because while it is not preferred, erotic entertainment is firmly within the scope of expression protected under 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) (plurality opinion); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion); Sable Communications of Cal. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Under the Act, an "adult-oriented establishment" must first obtain a license in order to legally do business. Consequently, the Act's licensing scheme constitutes a prior restraint on protected expression. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Deja Vu of Nashville, Inc. v. Metropolitan Gov't of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir.2001). Because prior restraints are not unconstitutional per se, the question is whether the prior restraint at issue in this case passes constitutional muster. Southeastern Promotions, 420 U.S. at 558, 95 S.Ct. 1239; Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000).

The Supreme Court has long required prior restraint licensing schemes to guarantee applicants a prompt final judicial decision on the merits of a license denial and preservation of the status quo while an application or judicial review of a license denial is pending. Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); FW/PBS, Inc., 493 U.S. at 229-30, 110 S.Ct. 596; City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 779-80, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). In the seminal Freedman decision, the Supreme Court suggested that a licensing scheme must place the burden of proof as to whether an applicant's form of expression is protected on the government. 380 U.S. at 58, 85 S.Ct. 734. However, it now appears that prompt judicial review and preservation of the status quo are the only constitutionally indispensable procedural safeguards. FW/PBS, Inc., 493 U.S. at 228, 110 S.Ct. 596; Deja Vu of Nashville, 274 F.3d at...