Paladino v. City of Omaha
| Decision Date | 29 December 1972 |
| Docket Number | No. 72-1167.,72-1167. |
| Citation | 471 F.2d 812 |
| Parties | Frank PALADINO, d/b/a The Hideaway Lounge, Appellant, v. CITY OF OMAHA et al., Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
William S. Poppleton and Joseph Lawrence Hastings, Omaha, Neb., for appellant.
Edward M. Stein and Gary P. Bucchino, Omaha, Neb., for appellees.
Before LARAMORE, United States Court of Claims Senior Judge, and BRIGHT and ROSS, Circuit Judges.
Frank Paladino (Paladino) brought this action against the City of Omaha, Nebraska (City) seeking an injunction against the enforcement of an order of the Omaha City Council revoking Paladino's license for violation of a city ordinance prohibiting topless and other nude entertainment in Omaha bars. A hearing was held upon plaintiff's application for a preliminary and permanent injunction and upon defendant's motion to dismiss. The district court, 335 F.Supp. 897, granted the City's motion to dismiss on the ground that the complaint failed to present a substantial federal question. Paladino appealed the dismissal claiming primarily that the performance of a dance, in the absence of a showing of obscenity, is entitled to the protection of the first amendment, and that "the conditioning of the operation and maintenance of a licensed business, upon compliance with an ordinance, which on its face is a prior restraint on a form of expression, is constitutionally prohibited." We affirm the judgment of dismissal of the district court but for reasons other than the one expressed by the district court.
The city ordinance pursuant to which Paladino's license was revoked provided in pertinent part as follows:
Paladino continued to provide topless dancing entertainment at his bar, and after a hearing, his license was revoked. After appealing unsuccessfully to the Nebraska State Liquor Commission, Paladino brought this action in the district court.
At the time of presentation of oral arguments, this Court indicated that disposition of this appeal would be delayed until the Supreme Court of the United States had decided the case of California v. LaRue which presented a similar, but not identical question of law. That case has now been decided, and while the facts differ slightly, it is dispositive of the issues in this case. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed. 342 (1972).
It is clear from the holding of the Supreme Court in LaRue that this case does present a federal question of constitutional proportions; but no useful purpose would be served in remanding the case to the district court when the sole question...
To continue reading
Request your trial
-
Clark v. City of Fremont, Nebraska
...of the issues and interests at stake in any concrete case." quoted in 409 U.S. at 115, 93 S.Ct. at 395. Finally, in Paladino v. City of Omaha, 471 F.2d 812 (8th Cir. 1972), it was held that an action by a bar owner against a city to enjoin enforcement of an order of the city council revokin......
-
Iacobucci v. City of Newport, Ky.
...the Twenty-first Amendment and so the relaxed standard of review in California v. Larue [sic] is applicable. Accord, Paladino v. Omaha, 471 F.2d 812, 814 (8th Cir.1972). (Emphasis added.) As noted by the district court, the parties readily admit that the nude dancing ordinance is practicall......
-
Peto v. Cook
...409 U.S. at 118, 93 S.Ct. at 397; Escheat, Inc. v. Pierstorff, 354 F.Supp. 1120, 1124-1126 (W.D.Wis.1973); also see Paladino v. City of Omaha, 471 F.2d 812, 814 (C.A.8, 1972). The Court was careful to observe that ". . . as the mode of expression moves from the printed page to the commissio......
-
Koppinger v. City of Fairmont
...83 Wash.2d 205, 517 P.2d 592 (1973); Longbridge Investment Co. v. Moore, 23 Ariz.App. 353, 533 P.2d 564 (1975); Paladino v. City of Omaha, 471 F.2d 812 (8 Cir. 1972) (ordinance providing for revocation of liquor license). See, also, Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 ......