Restaurant Ventures v. Lexington-Fayette
| Decision Date | 05 January 2001 |
| Docket Number | No. 1999-CA-000834-MR.,No. 1999-CA-001093-MR.,1999-CA-000834-MR.,1999-CA-001093-MR. |
| Citation | 60 S.W.3d 572 |
| Parties | RESTAURANT VENTURES, LLC, d/b/a Thee Clubhouse Pam Gibson; Ken Verba; Wendy Wilfong; Sean Brown; King Kelly, Inc. d/b/a Cowboys; Kelly Jean King; and Linda Coyle, Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee. and Lexington-Fayette Urban County Government, Appellant, v. King Kelly, Inc. d/b/a Cowboys; Kelly Jean King; Linda Coyle; Capitol Clubs of West Virginia, Inc.; Brett Boozer; Jean Ferguson; Holly Boehm; Stephan Wasson; Mark Biblehauser; Amee Cornn; Restaurant Ventures, LLC, d/b/a Thee Clubhouse; Pam Gibson; Ken Verba; Wendy Wilfong; Sean Brown; Norman Entertainment, Inc; Stanley Michael Brown; and Christopher Allan Hoagland, Appellees. |
| Court | Kentucky Court of Appeals |
Michael Hatzell, Louisville, for Appellants/Cross-Appellees.
Andrea Weddle, Lexington, for Appellee/Cross-Appellant Lexington-Fayette Urban County Government.
Before BARBER, EMBERTON and GUIDUGLI, Judges.
Several adult entertainment establishments and their employees brought this action challenging the constitutionality of ordinances enacted by the Lexington-Fayette Urban County Government. The ordinances propose to regulate: activities within the establishments; personnel qualifications; licensing requirements; and hours of operation. The trial court upheld certain parts of the ordinances and struck down others as unconstitutional. Both the establishments and the government appeal.1
The establishments, all of which serve liquor, feature striptease dancing. In 1997, the local government, in an effort to decrease the adverse secondary effects of all such establishments, enacted a series of ordinances regulating the establishments. Subsequently, the ordinances were amended; most amendments, however, are not relevant to this appeal. Ultimately, the government passed a final version of the Code of Ordinances, portions of which are now challenged on appeal.
The general purpose of the Code, as stated in the preamble, is to reduce sex crime and social disease believed to be associated with adult entertainment establishments. Under the ordinance dancers are prohibited from appearing nude which is defined as "appearing in a manner so as to expose to public view the anus, genitals, pubic region, or areola of the female breast."
Nudity alone has historically been prohibited by the common law.2 Similarly, conduct or material that is classified as obscene is not deserving of constitutional protection.3 When nudity is combined with dance, however, the courts have had difficulty reconciling the unprotected act of being nude and the expression of ideas through dance.4 The ancient Greeks used dance as a means of communication; Indian tribal dances are a means of communicating within the tribes as well as for spiritual communication; and ballet and other artistic forms of movement communicate ideas to the audiences. The concept that dance can be more than mere conduct, indeed a mode of expression, is clearly accepted.
At the core of the First Amendment is the basic guarantee to advocate ideas even though those ideas may be unconventional or repugnant to the majority values or morals.5 Neither the United States Supreme Court, nor this court, has accepted the view, however, that any conduct can be labeled "speech" and thereby become entitled to First Amendment protection "whenever the person engaging in the conduct intends thereby to express an idea."6
Despite the O'Brien court's unwillingness to hold that all conduct intended to express an idea falls within the ambit of constitutional protection, a splintered majority in Barnes v. Glen Theatre, Inc.,7 held that nude dancing is "expressive coduct within the outer perimeters of the First Amendment though ... only marginally so."8 We are, of course, bound by the Supreme Court's interpretation of the First Amendment made applicable to the states through the Fourteenth Amendment of the United States Constitution. The view that nude dancing is a form of ideological expression was confirmed by the Kentucky Supreme Court in Hendricks v. Commonwealth.9 Yet, what idea erotic dancing alone conveys, this court is unable to discern. Mere nude dancing without intent to make a statement, political, social, or otherwise, would seem to be merely for the purpose of sexually arousing the viewer. Nevertheless, we begin our analysis with the proposition that any challenge to a nude dancing ordinance must begin with the First Amendment.
The court in Barnes, supra, adopted a four-part test first set forth in O'Brien, supra, to determine the constitutionality of a ban on nudity. Quoting from O'Brien, the court stated:
This Court has held that when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. 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.10
Most recently, in City of Erie v. Pap's A.M. d/b/a "Kandyland",11 the court revisited Barnes, supra, and expanded on the level of scrutiny to be applied to ordinances prohibiting nudity. The issue, the court held, is whether the ordinance or regulation is unrelated to suppression of expression; if so, the less stringent standard from O'Brien is appropriate. If related to the content of the expression, a more demanding standard is required.12
Ordinances that ban nude dancing are generally considered to be content neutral. Increase in sex crimes, social disease and general depreciation of the neighborhood, are secondary effects of adult establishments which the courts have recognized as being within the government's power to control. As explained by the court in Erie, supra:
Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State's interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood.13
In an attempt to put much needed reason into the debate regarding erotic behavior and the First Amendment, the court offered the following perspective:
Similarly, even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as Justice STEVENS eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), "even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," and "few of us would march our sons or daughters off to war to preserve the citizen's right to see" specified anatomical areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based.14
The provisions of the ordinances before us are content neutral. The government's interest is in combating the secondary effects of adult entertainment establishments. In other words, it is not the message of eroticism that is censored but the act that conveys the message.
The first O'Brien factor is unquestionably satisfied since there is no dispute that regulation of the public health and safety are clearly within the government's powers. The second factor, whether the ordinance furthers a substantial or important interest, has been specifically addressed. As explained in Erie, supra, the asserted interests in combating the secondary effects associated with nude dancing are undeniably important. And, if left unclear from O'Brien, the Erie court removed any doubt as to the burden on the government to prove the existence of the adverse effects of such dancing:
[I]n terms of demonstrating that such secondary effects pose a threat, the city need not "conduct new studies or produce evidence independent of that already generated by other cities" to demonstrate the problem of secondary effects, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton v. Playtime Theatres, Inc., 475 U.S. at 51-52, 106 S.Ct. 925. Because the nude dancing at Kandyland is of the same character as the adult entertainment at issue in Renton, Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), it was reasonable for Erie to...
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