Olson v. City of West Fargo

• Decision Date: 12 May 1981
• Docket Number: S,No. 7564,No. 9898,7564,9898
• Citation: 305 N.W.2d 821
• Court: North Dakota Supreme Court
• Parties: 7 Media L. Rep. 1732 Rodney K. OLSON, L & V, Inc., VFW Postilver Dollar, Donald M. Taylor, Larry S. Wolf, Barb M. Wolf, Wm. Parkhouse, and Hi-Ten, Inc., Plaintiffs and Appellants, v. CITY OF WEST FARGO, Defendant and Appellee. Civ.

Page 821

305 N.W.2d 821

7 Media L. Rep. 1732

Rodney K. OLSON, L & V, Inc., VFW Post No. 7564, Silver Dollar, Donald M. Taylor, Larry S. Wolf, Barb M Wolf, Wm. Parkhouse, and Hi-Ten, Inc. Plaintiffs and Appellants, v. CITY OF WEST FARGO, Defendant and Appellee.

Civ. No. 9898.

Supreme Court of North Dakota.

May 12, 1981.

Frederick D. Kraemer and Mark A. Beauchene, Fargo, for plaintiffs and appellants; argued by Frederick D. Kraemer, Fargo.

Brian D. Neugebauer, of Ohnstad, Twichell, Breitling, Arntson & Hagen, Fargo, for defendant and appellee.

VANDE WALLE, Justice.

Rodney K. Olson, L & V, Inc., VFW Post No. 7564, Silver Dollar, Donald M. Taylor, Larry S. Wolf, Barb M. Wolf, William Parkhouse, and Hi-Ten, Inc. (plaintiffs), appealed from a judgment entered on November 17, 1980, by the district court of Cass County. The judgment held that West Fargo Ordinance No. 13-0130.01(d), known as the "Cabaret Ordinance," is constitutional. We affirm.

The parties have stipulated the following facts:

"1. That the Defendant is a municipal corporation which enacts ordinances, resolutions and regulations pursuant to North Dakota Century Code 40-05-01.

"2. That on June 2, 1980, following a second reading of proposed West Fargo Ordinance No. 13-0130.01, that ordinance was enacted by the West Fargo City Commission by a vote of four to one....

"3. That said ordinance was published in the West Fargo Pioneer on June 19, 1980.

"4. That the Plaintiffs are licensed liquor establishments or liquor license holders under West Fargo Ordinance Chapter 13-01 and that all hold valid current licenses to serve alcoholic beverages for consumption on their premises.

"5. The Plaintiffs are subject to all ordinances, resolutions and regulations enacted by the Defendant.

"6. The Plaintiffs face suspension or revocation of their liquor licenses if they do not comply with what they feel is a (sic ) unlawful and unconstitutional ordinance.

"7. That the Plaintiffs have standing to bring this action."

There are four particular sections within the cabaret ordinance which the plaintiffs object to as unconstitutional. The four sections state:

"6. No live performances are permitted on a licensed premise which contain 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. This restriction applies to all licensed premises whether or not they have a cabaret license."

"Live performances" are defined in Section 1(b) as:

"b. Live performances shall be defined for the purpose of this ordinance to mean any person who for consideration, monetary or otherwise, performs in person on a licensed premise as a singer, musician, dancer, comedian, model."

The other restrictions opposed by the plaintiffs are:

"7. No live performances are permitted on a licensed premise which involve the removal of clothing, garments or any other costume. Such prohibition does not include the removal of headwear or footwear; or the incidental removal of a tie, suitcoat, sportcoat, jacket, sweater or similar outer garments. Incidental removal for purposes of this section shall mean the removal of a garment or article of clothing which is not a part of the act or performance. This restriction applies to all licensed premises whether or not they have a cabaret license.

"8. No entertainment on a licensed premise shall contain:

"(a) The performance of acts, or simulated acts, of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited by law;

"(b) The actual or simulated touching, caressing or fondling of the breasts, buttocks, anus or genitals;

"(c) The actual or simulated displaying of the pubic hair, anus, vulva or genitals; or the nipples of a female.

"This restriction applies to all licensed premises whether or not they have a cabaret license.

"9. A licensee shall have the duty and responsibility to make available for inspection by a member of the West Fargo Police Department an identification card, such as a driver's license, containing a photograph and the age of all entertainers or performers on the licensed premises. The licensee shall not permit a person to make a live performance on the licensed premise if the licensee is not able to obtain the required identification from the performer."

The plaintiffs raise four issues regarding the cabaret ordinance:

1. Whether or not Sections 6 and 7 are facially overbroad in that they seek to prevent conduct protected under the First Amendment.

2. Whether or not Section 6 of the cabaret ordinance is unconstitutional by reason of vagueness.

3. Whether or not Sections 6 and 9 of the cabaret ordinance are irrational and therefore unconstitutional.

4. Whether or not the City of West Fargo has the legal authority to enact Section 8 of the cabaret ordinance.

Before considering the particular issues raised by the plaintiffs we point out that paragraph 7 of the stipulated facts indicates that the parties have agreed that the plaintiffs have standing to raise these issues.

This court has recognized the power of the State and the cities within it to regulate circumstances involving the public welfare. ¹ In Soderfelt v. City of Drayton, 79 N.D. 742, 752, 59 N.W.2d 502, 507 (1953), this court stated:

"Statutory enactments and municipal ordinances having for their purpose the protection of the public health, safety, morals and public welfare are founded upon the police power inherent in the state."

Soderfelt described this court's position when presented with a challenge to the constitutionality of these types of statutes and ordinances:

"In passing upon the constitutionality of such statutes or ordinances the courts will not declare them unconstitutional and thus substitute their judgment for that of the legislative body charged with the primary duty and responsibility of determining the question where the question is fairly debatable, that is, unless the statute(s) or ordinances are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or public welfare." 79 N.D. at 752-753, 59 N.W.2d at 507.

I

The plaintiffs allege that Sections 6 and 7 of the cabaret ordinance are, because of overbreadth, constitutionally infirm. They argue that these sections, on their face, serve as a deterrent to "legitimate expression by the general public," and that enactment of the ordinance calls for "protection against the 'chilling effect' which is being suffered by the members of the general public." ² We believe that consideration of an alleged infringement upon expression protected by the First Amendment requires that the scope of such an infringement must be clearly delineated. In this regard, the overbreadth doctrine is a sword which may cut two ways: to narrow the allegation of infringement and possibly to narrow the infringement itself. It is clear from a reading of Sections 6 and 7 that, if they reflect an infringement on protected expression, that infringement is not directed toward the general public but rather to specific types of entertainers who perform for consideration in an establishment in West Fargo which is licensed to sell liquor by the drink. Thus the plaintiffs' broad assertion of infringement on the general public's right of free speech has been narrowed and, as will be developed below, more paring of this issue is necessary before the constitutional question may be answered.

Before considering an assertion of overbreadth an initial determination must be made as to whether or not the rights asserted are properly First Amendment rights and are therefore entitled to consideration under the overbreadth doctrine. It is clear that in this appeal we are not examining expression in the form of pure speech, but rather expression in the form of conduct. The plaintiffs have pointed to State and Federal court cases which have expressly held that dancing is a form of expression which is protected by the First Amendment. We do not dispute that there are many forms of dance, classical and contemporary, which are designed to convey messages and which draw on a huge array of emotions and ideas in such conveyances. However, the First Amendment does not serve as a blanket which affords automatic protection to the limitless variety of bodily movements which may be labeled "dance" and which are claimed by the "dancer" to be an expression of ideas. Indeed, the United States Supreme Court, in discussing the speech-conduct continuum, stated:

"But as a mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulation significantly increases." California v. LaRue, 409 U.S. 109, 117, 93 S.Ct. 390, 396, 34 L.Ed.2d 342, 351 (1972).

We have thus far narrowed in two ways the plaintiffs' initial allegation that the cabaret ordinance infringes on the First Amendment liberties held by the general public. First, rather than on the general public, the ordinance focuses on entertainers who, for consideration, perform live in licensed liquor establishments. Second, the ordinance is directed toward conduct, a form of expression which may be afforded relatively less First Amendment protection than expression which is spoken or written. However, the precise nature of the issue presented on this appeal has not yet surfaced and awaits one more step in this narrowing process. That process leads us back to California v. LaRue, supra, where the United States Supreme Court considered the constitutionality of California regulations designed to eliminate certain entertainment in bars and night clubs. The nature of the activities sought to be prohibited by the regulations included a wide variety of sexually oriented "live entertainment." In California, the Department of Alcoholic Beverage...