Sands North, Inc. v. City of Anchorage, Alaska

• Decision Date: 15 November 2007
• Docket Number: Case No. 3:05-cv-256-TMB.
• Citation: 537 F.Supp.2d 1042
• Parties: SANDS NORTH, INC., d/b/a Fantasies on 5th Avenue, an Alaska Corporation, Plaintiff, v. The CITY OF ANCHORAGE, ALASKA, an Alaska Municipal Corporation, Defendant.
• Court: U.S. District Court — District of Alaska

537 F.Supp.2d 1042

SANDS NORTH, INC., d/b/a Fantasies on 5th Avenue, an Alaska Corporation, Plaintiff, v. The CITY OF ANCHORAGE, ALASKA, an Alaska Municipal Corporation, Defendant.

Case No. 3:05-cv-256-TMB.

United States District Court, D. Alaska.

November 15, 2007.

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Allan S. Rubin, Draper & Rubin, PLC, Southfield, MI, Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, AK, for Plaintiff.

James N. Reeves, Dorsey & Whitney, LLC, Thomas M. McDermott, Municipal Attorney's Office, Anchorage, AK, for Defendant.

ORDER

RE: Motion for Partial Summary Judgment

TIMOTHY M. BURGESS, District Judge.

Plaintiff Sands North, Inc., d/b/a/ Fantasies on 5th Avenue, filed a Complaint for Declaratory and Injunctive Relief, Damages and Attorney Fees pursuant to 42 U.S.C. §§ 1983, 1988 and 2201, as well as pendent state law claims. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3), and 2202.

Defendant seeks Partial Summary Judgment¹, as well as Judgment on the Pleadings.² This matter has been fully briefed by the parties,³ and the Court heard oral argument on November 29, 2006.

BACKGROUND

According to the Complaint, Plaintiff opened its current business on or about August 30, 1990. Plaintiff's establishment has featured the presentation of what is commonly referred to as nude and topless entertainment. Plaintiff does not serve alcoholic beverages, and therefore has employees and customers who are age 18 and over.

Defendant ("the Municipality") has adopted an ordinance codified at § 10.40.050 of the Anchorage Municipal Code, which was amended on October 11, 2005. The ordinance governs the manner in which "adult-oriented establishments" may conduct business. The relevant portions of § 10.40.050 are as follows:

A. Definitions. For the purpose of this section, the following words and phrases shall have the meanings indicated in this subsection:

Adult-oriented establishment, or adult business, shall include, but is not limited to, adult bookstores, adult motion picture theaters, adult mini-motion picture establishments, adult cabarets, physical culture studios, massage parlors, escort services, or similar type businesses where, by the nature of the business, minors under the age of 18 are denied entry, or businesses which are prohibited by law from having minors or unaccompanied minors on the premises for reasons other than the sale of liquor. If a premises, whose primary business is overnight lodging, offers adult movies via a cable, closed circuit or pay per view system, in the absence of any other adult entertainment activities, the availability of such movies, does not render the business an adult-oriented establishment for the purposes of this section.

. . .

Adult cabaret means a cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers. An adult cabaret does not include an establishment licensed for sale of alcoholic beverages.

. . .

Specified sexual activities means simulated or actual:

a. Showing of human genitals in a state of sexual stimulation or arousal.

b. Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sado-masochistic abuse, fellatio or cunnilingus.

c. Fondling or touching of human genitals, pubic region, buttock, anus or female breasts.⁴

d. The intrusion of any object into the genital or anal opening regardless of whether the act was consensual.

e. separation of a minimum of four feet shall be maintained between entertainers, dancers and/or strippers and patrons.⁵

. . .

I. Revocation of license.

1. The municipal clerk may revoke or suspend a license or permit for any of the following reasons:

. . .

g. Any of the following offenses are committed by any person at the location to which an adult business license has been issued:

. . .

(3) Allowing any person on the premises to engage in any of the specified sexual activities listed in 10.40.050A.

. . .

J. Physical condition of premises; sanitation requirements . . .

3. Exterior.

. . .

d. No adult entertainment shall be open to view from outside the licensed premises, or broadcast to any site outside the licensed premises. Permanent barriers shall be installed and maintained at each entrance and exit to screen the interior of the premises from public view. Exterior windows shall be covered with opaque covering at, all times.

It is undisputed that Plaintiff operates as an "adult-oriented establishment," and is licensed as an "adult cabaret." The 2005 amendments imposed additional restrictions on such establishments, including a requirement that "a separation of a minimum of four (4) feet shall be maintained between entertainers, dancers and/or strippers and patrons," (the "No Touch" provision) as well as a restriction prohibiting "broadcasting to any site outside the licensed premises." In addition, the 2005 Amendments added language allowing revocation of a business license in the event that any licensee or its employees allows "any person on the premises to engage in any of the specified sexual activities listed in 10.40.050A."⁶

Plaintiff complains that the ordinance, as amended, is in violation of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, §§ 5, 7 and 22 of the Alaska Constitution, because "it bans or unlawfully infringes on constitutionally protected dance entertainment in Anchorage."⁷ Plaintiff further complains that the definitions set forth in the ordinance are "unconstitutionally vague and overbroad."⁸ Plaintiff alleges that "the ordinance is an unconstitutional prior restraint on constitutionally protected expression which is not supported by any evidence of `adverse secondary effects.'"⁹ Plaintiff further alleges a violation of the Equal Protection Clause of the Fourteenth Amendment (as well as the corollary provisions of the Alaska Constitution), violation of the Commerce Clause, and a deprivation of the lawful use of property without due process.¹⁰

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¹¹ The moving party bears the initial burden of proof for showing that no fact is in dispute.¹² If the moving party meets that burden, then it falls upon the non-moving party to refute with facts which would indicate a genuine issue of fact for trial.¹³ Summary judgment is appropriate if the facts and allegations presented by a party are merely colorable, or are not significantly probative.¹⁴

DISCUSSION

Defendant's Motion for Partial Summary Judgment¹⁵

Defendant seeks summary judgment on five of Plaintiff's claims, arguing that they are insufficient as a matter of law under both Federal and State analyses. Specifically, Defendant seeks summary judgment regarding Plaintiff's claims that: 1) the Municipality's four foot rule unconstitutionally infringes on protected expression;¹⁶ 2) AMC 10.40.050 violates the equal protection doctrine;¹⁷ 3) AMC 10.40.050 is unconstitutionally overbroad;¹⁸ 4) AMC 10.40.050 is unconstitutionally vague;¹⁹ and 5) the broadcasting restriction of AMC 10.40.050 violates the Commerce Clause of the United States Constitution.²⁰

Protected Expression

Paragraph 43(c) of the Complaint alleges that AMC 10.40.050 is a content-based restriction on speech. Paragraph 43(e) alleges "there are no facts that would support the claim that an `adult cabaret' ... causes any adverse secondary effects that Anchorage has a right to regulate." Paragraph 43(g) alleges that AMC 10.40.050 "[is] not narrowly tailored nor are the restrictions contained reasonably related to any legitimate and/or substantial government interest." Paragraph 43(h) alleges that the ordinance is not supported by any evidence that it would be effective in furthering any substantial government interest. Paragraph 43(m) alleges that AMC 10.40.050 "attempts to impose unconstitutional conditions on one's right to engage in constitutionally protected activities."

The Municipality argues that AMC 10.40.050 only regulates conduct that is not constitutionally protected; that constitutional principles do not require that AMC 10.40.050 be "narrowly tailored" to serve a government interest; that the ordinance need only be substantially related to a legitimate government goal, and it meets this standard; that there are abundant facts in the Municipality's legislative record and in the decisions of other courts that adverse secondary effects exist; and that AMC 10.40.050 does not infringe upon constitutionally protected activity, nor are the restrictions it imposes unconstitutional. Because, the Federal and Alaska analyses differ with respect to protected expression, they will be examined separately.

— Federal Analysis

"[F]ive members of the Supreme Court have agreed that nude dancing is expressive conduct protected by the First Amendment, albeit only at the `outer ambit' of the Amendment's protection."²¹ "The level of constitutional protection and the type of analysis we apply to nude dancing regulations differs depending upon the type and purpose of the restriction. In all situations, however, the government has the burden of proof to justify burdening freedom of expression."²²

Extensive briefing was devoted to the determination of whether strict or intermediate scrutiny of the ordinance is appropriate in this matter. Plaintiff argues that the ordinance should be subject to strict scrutiny, as the amendments were drafted solely to prohibit a particular type of expression. The Municipality, however, suggests that intermediate scrutiny is appropriate, arguing that the amendments are nothing more than "time, place and manner restrictions."

The Ninth "Circuit has held that "Restrictions upon nude dancing are...