Schmitty's City Nightmare, LLC v. City of Fond Du Lac

• Decision Date: 30 September 2005
• Docket Number: No. 04 C 383.,04 C 383.
• Citation: 391 F.Supp.2d 745
• Parties: SCHMITTY'S CITY NIGHTMARE, LLC, Plaintiff, v. CITY OF FOND DU LAC, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 745

391 F.Supp.2d 745

SCHMITTY'S CITY NIGHTMARE, LLC, Plaintiff, v. CITY OF FOND DU LAC, Defendant.

No. 04 C 383.

United States District Court, E.D. Wisconsin.

September 30, 2005.

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Jeff Scott Olson, Jeff Scott Olson Law Firm SC, Madison, WI, for Plaintiff.

Raymond J. Pollen, Crivello Carlson & Mentkowski SC, Milwaukee, WI, for Defendant.

DECISION AND ORDER

GRIESBACH, District Judge.

In 2002 Schmitty's City Nightmare, a limited liability company, purchased a building in the City of Fond du Lac in an area zoned "B-3". At the time the city allowed adult nightclubs to be located in areas with that zoning designation, but in 2003 the city amended its zoning ordinance to allow such operations only in areas zoned B-5 and B-6. At issue in this case are not the zoning designations themselves so much as the nature of the businesses regulated under the zoning ordinance. The Fond du Lac ordinance defines the scope of the businesses regulated, including the type of clothing that may be worn by performers and the types of actions they can engage in. Though the plaintiff had not yet opened for business in 2003, this ordinance put a substantial crimp in its business plan. According to Mike Schmitz, a principal of the plaintiff company, "the plaintiff seeks to present dance entertainment with a more erotic message but has refrained from doing so because it fears prosecution by the City of Fond du Lac under the ordinances at issue in this case." (Schmitz Declaration, ¶ 19). Instead of offering such entertainment, the plaintiff's venue offers a less erotic "message" of somewhat broad and indefinite scope. Sometimes it offers entertainment in the form of dancers wearing swimsuits; other times its patrons (mostly teens, apparently) are entertained by rock and roll bands.

It seems, however, that Schmitty's had a problem with its patrons congregating outside its business. During the summer of 2004, for example, police officers would harass customers who were either waiting in line to enter or who were "enjoying the cool of the evening" during, say, a break in the music. (PPFOF ¶ 27.) Both the patrons and the musicians tended to be high school aged, and sometimes the musicians would join the patrons outside during such breaks. (PPFOF ¶ 37.) On one occasion in particular, a Fond du Lac officer came on two separate occasions to warn the teens to disperse, go back inside, or face a loitering violation. Other times, the owners of Schmitty's were warned that its customers could not loiter outside the establishment. Once an officer threatened to shut the place down if he had to return a third time on the same evening. (PPFOF ¶ 40.)

Schmitty's challenges both the adult oriented zoning ordinance as well as the loitering ordinance. It claims that both laws threaten its business and impinge upon the protected rights of its patrons. Both parties have moved for summary judgment. For the reasons stated below, the plaintiff's motion will be denied and the city's motion will be granted.

I. Fond du Lac Loitering Ordinance

A. Standing

Schmitty's challenges the scope of several sections of Fond du Lac's loitering ordinance, arguing that the ordinance is vague, a violation of due process, and a violation of the First Amendment right to associate.¹ Notably, none of the customers who were threatened with loitering offenses by police are plaintiffs in this case. Instead, Schmitty's argues it has standing to challenge the ordinance on its customers' behalf; it also claims it has independent standing based upon injuries to its business.

Generally, to have standing to sue in federal court, a plaintiff must allege (1) it has suffered an injury in fact (2) that is fairly traceable to the action of the defendant and (3) that will likely be redressed with a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Relying largely on the Eleventh Circuit's decision in White's Place v. Glover, 222 F.3d 1327 (11^th Cir.2000), Fond du Lac suggests that the injuries allegedly suffered by customers lingering outside of an establishment cannot constitute the basis of that establishment's own standing. In White's Place, the employees of a strip club were protesting a state court ruling affecting the ability of the employees to dance nude. A police officer arrived and apparently ordered them to disperse. A city ordinance made it a misdemeanor "for any person to resist or oppose a police officer ... in the discharge of his duties under the laws of the City." Id. at 1328. The strip club itself, and not the protesting employees, brought suit to enjoin enforcement of the ordinance, but the Eleventh Circuit found it lacked standing to bring the case on its own:

It is difficult to discern how the normal conduct of the corporation's affairs will involve opposition to police officers. Even if employees of the establishment do oppose a police officer and are arrested, any criminal charges are personal in consequence. The corporation itself has not, and could not, be arrested for opposing a police officer. Any hypothetical injury to the corporation is too speculative to provide a basis for standing.

222 F.3d at 1329-30 (citations omitted).

Fond du Lac argues that the case is essentially identical to the facts here. In fact, while White's Place involved a corporation's employees, in this case we are merely talking about the company's customers, a more attenuated relationship. If the customers are actually arrested for loitering, that is their business and none of Schmitty's.

But the plaintiff's standing here is not limited to third-party standing — it claims it has standing independent of, or in addition to, its customers. As noted, on one occasion an officer threatened to shut Schmitty's down if the officer had to return a third time that night. This was a direct threat of injury to Schmitty's business itself, a threat of loss based upon the very ordinance Schmitty's now challenges. When viewed in combination with the multiple warnings issued to Schmitty's patrons, Schmitty's fear of losing business is credible and traceable to the ordinance. Because Schmitty's itself is now operating under the cloud of injury caused by enforcement of the loitering ordinance, I find that it has sufficient standing to challenge that ordinance.²

B. Vagueness and Overbreadth

Loitering ordinances are subject to vagueness and overbreadth challenges because they touch on behavior, such as picketing, leafleting, or simply gathering and freely associating, that is protected by the First Amendment. An overly vague or broad ordinance would allow prosecution for standing on the sidewalk based upon the "whim of any police officer," something that is "not compatible with our constitutional system." Papachristou v. City of Jacksonville, 405 U.S. 156, 168-69, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The ordinance in question, § 9.05 of Fond du Lac's municipal code, begins with a subsection consisting of a general loitering provision (adopted from the Model Penal Code) and is followed by six subsections governing more specific behavior. The first subsection reads as follows:

9.05 LOITERING AND PROWLING. (1) LOITERING. No person shall loiter or prowl in a place, at a time or in a manner not usual for law abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself or manifestly endeavors to conceal himself or any object. Unless flight by the actor or other circumstances makes it impracticable, a peace officer shall, prior to any arrest for any offense under this section, afford the actor an opportunity to dispel any alarm which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.

As noted, this subsection was borrowed from the Model Penal Code; the same ordinance has also been approved of by the Wisconsin Supreme Court. In City of Milwaukee v. Nelson, 149 Wis.2d 434, 439 N.W.2d 562, 566-68 (1989), the court found Milwaukee's ordinance constitutionally acceptable because loitering was narrowly limited to activity occurring "at a time or in a manner not usual for law abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity." This qualifier served to limit the ordinance's applicability to a much narrower subset of activity than would be the case had the ordinance merely prohibited "loitering" in a more vague sense.

The plaintiff concedes that subsection (1) is constitutionally sound and instead focuses its challenge on several other subsections of the ordinance. For example, in its view the most glaring example of overbreadth is § 9.05(7)(c), which reads:

(c) Places of Public Assembly or Use. No person shall loiter, lounge or loaf in or about any depot, theater, dance half, restaurant, store, sidewalk, parking lot, or other place of assembly or public use after being requested to move on by any police officer or by the owner or other person in charge of such place. Upon being requested to move, a person shall comply immediately with such request by leaving the premises or the area.

This section is too broad, the plaintiff argues, because it could apply to clearly protected activity like leafleting, or the peaceable assemblage of those simply standing in line to get into Schmitty's.³ Once the officer (or whoever is "in charge of such place") tells someone loitering to move...