Threesome Entertainment v. Strittmather
| Citation | 4 F.Supp.2d 710 |
| Decision Date | 27 March 1998 |
| Docket Number | No. 1:98-CV-445.,1:98-CV-445. |
| Parties | THREESOME ENTERTAINMENT, et al., Plaintiffs, v. Jack STRITTMATHER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
James H. Banks, Dublin, OH, for Plaintiffs.
Kenneth S. Stumphauzer, Baumgartner & O'Toole, Lorain, OH, Alan E. Johnson, Leo R. Ward, Ward & Associates, Cleveland, OH, Abraham Lieberman, Lieberman & Nowak, New York City, for Defendants.
The plaintiffs in this case are Robert Harris and his business, Threesome Entertainment (collectively, "Harris"). Harris brings this action against the following defendants: (1) the City of Vermilion, Ohio; (2) Vermilion's chief building inspector, Jack Strittmather; and (3) one or more unidentified "John Doe" defendants (collectively, "Vermilion"). Harris alleges that he owns and operates an adult cabaret in Vermilion called FantasyLand Lakeside, and that Vermilion has undertaken a series of improper actions directed at closing down his business. In his complaint, Harris asserts that Vermilion: (1) illegally searched the premises of FantasyLand Lakeside without first obtaining a warrant; (2) refused to timely issue Harris an occupancy permit for FantasyLand Lakeside, even though Harris was entitled to one; and (3) generally conspired to shut down FantasyLand Lakeside. Harris asserts that Vermilion's actions work an unconstitutional infringement upon his freedom of expression, as guaranteed by the First Amendment.
Harris filed his complaint in this action on February 23, 1998. Subsequently, on March 5, 1998, Vermilion issued to Harris a temporary certificate of occupancy for the FantasyLand Lakeside. The next day, on March 6, 1998, Vermilion enacted Vermilion Codified Ordinance 98-15 (the "Ordinance"), as an emergency measure. This Ordinance regulates activities which may take place in "adult cabarets." Vermilion then notified Harris that it had passed the Ordinance, and granted Harris a one week period to comply. One week later, on March 13, 1998, Harris filed in this case a motion for temporary restraining order and preliminary injunction, seeking to prevent Vermilion from enforcing the Ordinance. The Court held a hearing on the same day and, for reasons stated on the record, granted the motion for temporary restraining order to maintain the status quo. This Order precluded Vermilion from enforcing any of the provisions contained in the Ordinance for ten business days, the last day being March 27, 1998.
The Court then held a hearing on Harris's motion for preliminary injunction on March 19, 1998. For reasons stated on the record at that hearing, and as explained more fully below, the Court modified its earlier temporary restraining Order to allow Vermilion to enforce some, but not all, of the provisions contained in the Ordinance. The Court further directed that the temporary restraining Order would continue in force until it expired by its own terms, or until the Court ruled on the motion for preliminary injunction, whichever occurred first.
The Court now rules on Harris's motion for preliminary injunction, which is GRANTED IN PART AND DENIED IN PART. Specifically, for the reasons stated below, the Court rules that Vermilion may not enforce the following provisions of the Ordinance because they are unconstitutional: § 666.18(b); § 668.18(c), to the extent it requires seminude employees to appear on a stage 45" high; and § 666.18(f). Defendants may enforce all of the remaining sections of the Vermilion Ordinance.
The evidence presented at the preliminary injunction hearing is as follows. On February 17, 1998, Harris opened the FantasyLand Lakeside for business in Vermilion, Ohio. FantasyLand Lakeside serves non-alcoholic beverages and provides entertainment in the form of nearly-nude dancing women. The women dance on stage wearing a G-string, and their sole source of payment is tips from patrons. Besides tipping the women for dancing on stage, patrons may also pay women for a personal, close-up dance. These close-up dances are known as "lap dances" or "table dances."1 During a lap dance, a dancer performs in close proximity to the patron; she may brush against him or put her hands on his2 shoulders. A lap dance, which usually lasts between four and ten minutes (the duration of a dance song), may take place at the patron's table near the dance stage, or in the "VIP room." The VIP room is an area separated from the larger stage area by a curtain of beads, and offers a modicum of privacy. Several patrons may be in the VIP room at once, and managers and other employees can and do periodically view the interior of the VIP room; thus, Harris contends, the VIP room is not truly "private," it is merely less public than the stage area. A dancer will charge a patron about $5 for a lap dance in the stage area, and about $25 for a lap dance in the VIP room.
On its first day of operation, the FantasyLand Lakeside presented dancers in a state of total nudity. Since then, the dancers have worn G-strings, which cover their genitals; their buttocks and breasts remain uncovered. As noted, a dancer may come into contact with a patron during a lap dance, either intentionally or unintentionally. Harris testified, however, that this contact is not sexual— a dancer does not purposefully touch a patron with her breasts, or pubic area, and a dancer does not purposefully touch a patron's pubic area. Further, the patrons are explicitly directed not to touch the dancers in any way, and are warned that a failure to abide by this rule will result in an immediate termination of the lap dance, and possibly ejection from the premises. These rules are enforced by the dancers themselves and also by managers, who monitor the dancers, including during the times the dancers are in the VIP room.
Harris first opened the FantasyLand Lakeside for business on the evenings of February 17 and 18, 1998. These dates marked the first time any similar adult business had ever operated in Vermilion. On February 19, 1998, defendant Strittmather delivered to Harris a "cease and desist order," requiring Harris to cease operations for failure to obtain a certificate of occupancy. Harris indicated his intention to ignore the cease and desist order, so on February 20, 1998, Vermilion sought a temporary restraining order from the Lorain County Court of Common Pleas. Vermilion succeeded in obtaining the temporary restraining order from the state court, based on Harris's asserted failure to obtain an occupancy permit, so Harris closed the FantasyLand Lakeside on February 20, 1998. Harris then filed this action on February 23, 1998. On March 5, 1998, Vermilion issued a temporary occupancy permit to Harris, and Harris re-opened the FantasyLand Lakeside that day. On March 6, 1998, Vermilion dismissed its state court action.
During the time that Harris was not operating FantasyLand Lakeside by virtue of the state court temporary restraining order, Vermilion passed legislation directed at "prohibit[ing] certain activities in adult cabarets." Ordinance 98-15. The text of this Ordinance is attached to this opinion as Appendix A. Among other things, the Ordinance required: (1) dancers in adult cabarets to wear, at a minimum, pasties and a G-string; (2) that there be no physical contact between two dancers or between a dancer and a patron; (3) dancers to perform at a distance of at least six feet from any patron, and on a stage 45 inches high; and (4) patrons to present two forms of identification before entering an adult cabaret. The Ordinance is a criminal statute, ordaining that a person who violates any of its provisions "is guilty of a misdemeanor of the third degree." § 666.18(k).
Vermilion undertook the following procedure regarding adoption of the Ordinance. On March 2, 1998, at a meeting of the Vermilion City Council, there was a first reading of the Ordinance. Before this March 2 meeting, City Council members received three studies (one each done by New York City, Indianapolis, and Minnesota) regarding secondary effects of sexually oriented businesses. At the March 2 meeting, the City Council announced there would be a special meeting on March 4, 1998, to receive community comments about the Ordinance, and another special meeting on March 6, 1998, to consider enacting the Ordinance. Prior notice of the March 4 and March 6 meetings was sent to local newspapers, and was also broadcast on local cable television channels. At the March 4 meeting, several persons testified regarding the Ordinance, including Vermilion Police Chief Robert Kish. Kish stated that, according to the above-referenced studies and as revealed by data he had obtained from the nearby city of Brookpark, Ohio, criminal activity often increased near sexually oriented businesses. Before the March 6 meeting, at least one of the Council members also obtained a study by the Ohio Department of Health regarding sexually transmitted diseases. This study showed that prostitution increases the transmission of sexual diseases.
At the March 6 meeting, the Ordinance was passed as an emergency measure. On March 7, 1998, Harris received a letter from Vermilion notifying Harris that the Ordinance was enacted and stating, "[y]ou are granted a time period of one week from the date of enactment of the ordinance to make the necessary arrangements to comply with Ordinance 98-15." After the week expired and enforcement was imminent, Harris filed his motion for a temporary restraining order, seeking to enjoin Vermilion's enforcement of the Ordinance.
A preliminary injunction is a provisional remedy authorized under Fed.R.Civ.P. 65. It is "an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, ___, ...
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