Ranch House, Inc. v. Amerson

• Decision Date: 30 September 1998
• Docket Number: No. CV 98-PT-1638-E.,CV 98-PT-1638-E.
• Citation: 22 F.Supp.2d 1296
• Parties: The RANCH HOUSE, INC., d/b/a the Platinum Club, d/b/a the Platinum Entertainment Center, d/b/a the Platinum Sports Bar, Plaintiff, v. Larry AMERSON, Sheriff of Calhoun County, and the Calhoun County Commission, a body politic as elective representatives of Calhoun County, a political subdivision of the State of Alabama, Defendants.
• Court: U.S. District Court — Northern District of Alabama

22 F.Supp.2d 1296

The RANCH HOUSE, INC., d/b/a the Platinum Club, d/b/a the Platinum Entertainment Center, d/b/a the Platinum Sports Bar, Plaintiff, v. Larry AMERSON, Sheriff of Calhoun County, and the Calhoun County Commission, a body politic as elective representatives of Calhoun County, a political subdivision of the State of Alabama, Defendants.

No. CV 98-PT-1638-E.

United States District Court, N.D. Alabama, Eastern Division.

September 30, 1998.

George A. Monk, Merrill Porch Dillon & Fite, Anniston, AL, Steven H. Swander, Fort Worth, TX, for Ranch House Inc.

George D. Robinson, Wilson Punroy Turner & Robinson, Anniston, AL, for Larry Amerson.

Thomas M. Sowa, State of Alabama, Calhoun County, Anniston, AL, for Calhoun County Com'n.

MEMORANDUM OPINION

PROPST, Senior District Judge.

This cause came on to be heard at a bench trial. Without objection, the court, pursuant to Fed. R. of Civ. P. 65, advanced and consolidated the trial of this action on the merits with a requested hearing on plaintiff's application for preliminary injunction. Trial was held on August 24, 1998.

Facts

The parties stipulated the facts which are pertinent to the issues submitted for decision by the court. These facts include:¹

4. Since 1993, the plaintiff has owned and operated an establishment known as the Platinum Club which, as its main attraction, provides entertainment consisting of topless and nude female dancing. The Platinum Club is not licensed to sell, serve, or otherwise provide for the distribution or consumption of alcoholic beverages in connection with the nude or topless dance performances conducted on its premises.

5. Neither the plaintiff's shareholder, Harvey Bowman, nor any manager, employee or entertainer, has been arrested or charged with an obscenity violation for activities at the Platinum Club.

6. The plaintiff further owns an adjacent facility known as the Platinum Sports Bar which is licensed to serve beer and wine.

7. The plaintiff's business is located in an unincorporated area of Calhoun County lying within the police jurisdiction of a municipality. The plaintiff has paid taxes to the City of Anniston, Alabama.

8. An occupied, single-family residential structure is located within 1,000 feet of the plaintiff's establishment.

13. Act No. 98-467 does not operate as a "total taking" of the plaintiff's property, and there are remaining economic uses to which the plaintiff might subject its property presently housing the Platinum Club.

14. There is, at present, land in Calhoun County, Alabama and elsewhere in the State of Alabama that is not within 1000 feet of one of the protected uses set forth in Section 13A-12-200.5(4).

15. The defendant Sheriff has, through his counsel, advised the plaintiff, through its counsel, of his intent to enforce the statute according to its terms should it be deemed constitutional, if the District Attorney agrees to prosecute such action.

No further evidence was offered at the trial by any party.

In its complaint, the plaintiff alleges that it, originally, operated a business which not only provided live entertainment of erotic female dancers for its customers, but also sold beer and wine. In response to assertions by the City of Anniston, Alabama, plaintiff "reconfigured" its business by selling beer and wine in a building adjacent to the erotic dancing building.

Plaintiff's Contentions

Plaintiff claims that the following provisions of 1998 enacted Alabama statutes constitute content-based restrictions on protected expression in violation of the First Amendment to the U.S. Constitution: Section 13A-12-200.11. Plaintiff emphasized at the hearing that its challenge to this section is based totally on facial invalidity.

Plaintiff further claims that the following provisions of the 1998 enacted Alabama statutes are unconstitutional as being facially violative of the First and Fourteenth Amendments to the U.S. Constitution: Section 13A-12-200.5(4). Plaintiff claims that said section is "overbroad, vague and without proper foundation."

Plaintiff had also claimed that Section 13A-12-200-12 violates the First and Fourteenth Amendments, but now acknowledges that this claim is not ripe for consideration.

Statutory Provisions

Section 13A-12-200.11 reads as follows:

It shall be unlawful for any business establishment or any private club to show or allow to be shown for entertainment purposes the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. A violation of this section shall be a Class C felony.

If a person is held under this section in the county jail, one-half of any fines collected and due to be deposited to the State General Fund for violations of this section shall be paid by the comptroller to the General Fund of the county where the person is held for the operation of the county jail.

Section 1A-12-200.5(4) reads as follows:

It shall be unlawful for any person to operate an adult bookstore, adult movie house, adult video store, or other form of adult-only enterprise within 1,000 feet of a church, place of worship, church bookstore, public park, public housing project, day-care center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence, or any other place frequented by minors. Any person who violates this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000) and may also be imprisoned in the county jail for not more than one year.

Plaintiff acknowledges that its facility is an "adult-only enterprise" as defined in § 13A-12-200.1(3).

Conclusions of Law

The facts are undisputed, so the sole issues are issues of law. The court will address each contested statutory provision.

Section 13A-12-200.11

This issue is governed by the case of Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) and subsequent cases which consider and apply Barnes.² The following quotes from Barnes are pertinent:

Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn. Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975), we said: "[A]lthough the customary `barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances." In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981), we said that "[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation" (citations omitted). These statements support the conclusion of the Court of Appeals that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.

Id. at 565-66, 111 S.Ct. 2456.

... Respondents contend that while the state may license establishments such as the ones involved here, and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment.

Id. at 566, 111 S.Ct. 2456.

"... Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 376-377, 88 S.Ct., at 1678-1679 (footnotes omitted) (citing U.S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)).

Id. at 567, 111 S.Ct. 2456.

... Public indecency statues such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.

Id. at 568, 111 S.Ct. 2456.

This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973), we said:

"In deciding Roth [v. United States, 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498](1957)], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect `the social interest in order and morality'. [Id.], at 485 ." (Emphasis omitted.)

And in Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), we said:

"The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."

Thus, the public indecency statute furthers a substantial government interest in protecting order and morality.

This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct — including appearing in the nude in public — are "expressive," and in one sense of the word this is true. People who go about in the nude in public...