Paladino v. City of Omaha
| Decision Date | 17 January 1972 |
| Docket Number | Civ. No. 72-0-101. |
| Parties | Frank PALADINO, d/b/a The Hideaway Lounge, Plaintiff, v. CITY OF OMAHA et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
Walter J. Matejka and William S. Poppleton, Omaha, Neb., for plaintiff.
Gary P. Bucchino, Omaha, Neb., for defendants.
This matter comes before the Court for hearing on plaintiff's application for a preliminary and permanent injunction restraining enforcement of an ordinance of the City of Omaha, Nebraska. The parties have orally stated to the Court that they have no objection to the Court also considering defendants' motion to dismiss at this time Filing #5.
The ordinance in question provides that cause for revocation or suspension of a liquor license exists when the licensee or his agent shall allow, on the licensed premises, live entertainment that includes nudity, which is defined to mean exposure of the female breast or male or female genitals.
The plaintiff has previously allowed "Go Go" girls to dance "topless" in his establishment, which was licensed for the serving of liquor. The present stage of the proceeding is that as a result of allowing the described dancing, plaintiff has had his liquor license revoked; such revocation has been sustained by the State Liquor Commission. In this action, plaintiff alleges that the enforcement of the ordinance constitutes an infringement of his First Amendment rights and that conditioning a liquor license upon compliance with such an ordinance violates the Fifth and Fourteenth Amendments of the United States Constitution.
Among the grounds alleged in defendants' motion to dismiss is that this case involves no substantial federal question. Dismissal for lack of a substantial federal question is entirely proper. Money v. Swank, 432 F.2d 1140, 7th Cir. 1970. The threshold question before the Court is: Does the plaintiff's complaint present a substantial federal question? The answer will turn upon whether the dancing as described is protected by the First Amendment. An adverse determination to plaintiff will moot his Fifth and Fourteenth Amendment claims, since conditioning a liquor license on a constitutionally valid ordinance would not violate those amendments. A favorable determination to plaintiff will necessitate a finding on the Fifth and Fourteenth Amendment claims as well.
The parties have not indicated that the dancing herein is in any way different from that previously before the Court in Hodges v. Fitle, 332 F. Supp. 504, D.Neb.1971. In that decision, the Court found that the ordinance in question as applied to dancers themselves did not violate the First Amendment. Plaintiff argues that in Hodges v. Fitle, supra, the ordinance did not directly apply to the dancers, and it is the licensees themselves now before the Court. Plaintiff also argues that Hodges v. Fitle, supra, may be distinguished as to the great difference in possible injury between the dancers and the licensees. The Court finds no merit in the latter contention. Whether an activity is or is not protected by the First Amendment has never been held to turn upon the degree of harm to the plaintiff if the activity were to be found not to be so protected.
There remains the question as to whether the ordinance as applied to the licensee violates the First Amendment. This Court is not altogether convinced that it should not dismiss this case solely on the authority of Hodges v. Fitle, supra, but, lest there be any mistake as to the Court's opinion in these matters, the Court will elaborate.
This Court is of the opinion that almost every activity of human life involves elements of communication. It is communication that is the essence of the speech protected by the freedom of speech clause of the First Amendment. An example will serve to illustrate the...
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...326 F.Supp. 348 (C.D.Cal.1971), probable jurisdiction noted 404 U.S. 999, 92 S.Ct. 559, 30 L.Ed.2d 551 with Paladino v. City of Omaha, 335 F.Supp. 897 (D.Neb.1972), and Hodges v. Fitle, 332 F.Supp. 504 (D.Neb.1971). The second argument is that there was insufficient prior warning or legisla......
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