Triplett Grille, Inc. v. City of Akron

• Decision Date: 17 March 1993
• Docket Number: No. 5:92CV2488.,5:92CV2488.
• Citation: 816 F. Supp. 1249
• Parties: TRIPLETT GRILLE, INC., dba The Back Door, Plaintiff, v. CITY OF AKRON, Defendant.
• Court: U.S. District Court — Northern District of Ohio

816 F. Supp. 1249

TRIPLETT GRILLE, INC., dba The Back Door, Plaintiff, v. CITY OF AKRON, Defendant.

No. 5:92CV2488.

United States District Court, N.D. Ohio, E.D.

March 17, 1993.

J. Michael Murray, Steven D. Shafron, Berkman, Gordon, Murray & Palda, Cleveland, OH, for plaintiff.

Deborah Forfia, David A. Muntean, Asst. Director of Law, the City of Akron, Akron, OH, for defendant.

ORDER

SAM H. BELL, District Judge.

Currently pending before the court is plaintiff's motion for a permanent injunction. The motion was filed on November 23, 1992. A hearing was held for purposes of deciding whether a temporary restraining order was justified. The court ruled on December 1, 1992, that a temporary injunction was not warranted. Subsequently, the court received argument and evidence from the parties at two other hearings.

BACKGROUND

The cause presented for this court's resolution is one which examines the tension which frequently exists between expressions of moral standards enunciated by members of a given community and provisions of the First Amendment to the Constitution of the United States—provisions which govern all members of all communities throughout this nation.

Several questions must be discussed during the course of this opinion. The answer to each of these is to be found by analyzing all of the facts and circumstances in evidence before this court and by applying the law to those facts. This is said because on its surface, this case presents a single and simplistic inquiry: can not the people of a city, acting through their elected agents, the council members of that city, establish laws which protect what are believed to be defined principles of moral conduct? The answer to that inquiry must be an affirmative one provided that the legislation enacted does not abrogate the rights of others whose views are recognized as being protected by that law which is superior to all others in this nation: the Constitution of the United States.

A central subject of our discussion here is nude dancing in a bar within the confines of the City of Akron. One's first impression could well be that such an activity might readily be barred for any number of reasons. Some of these reasons were advanced by the legislators who enacted the ordinance under discussion; others were voiced by various community groups which urged the ban placed into effect with the passage of the City ordinance. However this may be, this court must begin any analysis of the issues in this cause by recognizing that the law in these United States affords nude dancing constitutional protection under the wing of the First Amendment. It must be understood then that any view taken by this court in relation to this cause is predicated upon a long line of precedent guaranteeing legal sanctuary to the activity to which objection was made and which eventually became encompassed within the parameters of the ordinance under discussion.

Plaintiff in this cause is Triplett Grille, Inc., an Ohio corporation which operates an alcohol-serving bar called "Chasers Too" at 1955 Triplett Boulevard in Akron. Plaintiff also operates a non-alcohol serving "juice bar" in the same building. The latter establishment is called "The Back Door". Defendant City of Akron is a charter municipality under Ohio state law.

In November 1991 when plaintiff corporation was formed, the building at 1955 Triplett Boulevard contained only one establishment, Chasers Too. In September 1992, plaintiff decided to offer a different form of entertainment—live nude performance dancing. To effect this end, plaintiff substantially renovated the interior of the building to separate the alcohol-serving Chasers Too side from the juice-serving nude dancing side, The Back Door.¹

At the time plaintiff anticipated commencing operations at The Back Door, Akron had a public indecency statute which provided in pertinent part:

(A) No person shall recklessly do any of the following, under circumstances in which his or her conduct is likely to be viewed by and affront others, not members of his or her household:

(1) Expose his or her private parts, or engage in masturbation;

(2) Engage in sexual conduct;

(3) Engage in conduct which to an ordinary observer would appear to be sexual conduct or masturbation.

Akron City Code § 133.06. Plaintiff isolated The Back Door's dancers from casual observers to assure that the dancing was unlikely to be viewed by observers who would be affronted, therefore, the proposed entertainment would not have violated section 133.06.

On October 12, 1992, at 4:00 p.m., The Back Door opened and commenced presenting performance dancing that included nudity. The inaugural performance lasted little more than an hour before the Akron police department vice squad, accompanied by Council member John Otterman, stepped in to shut down the bar pursuant to A.C.C. § 111.579, which provides in part:

The Police Chief or the Fire Chief, or their designated officers, shall without written notice cause the immediate cessation of any activity described in § 111.570 which is being conducted without benefit of a city license as required in § 111.570 for the reason of improper and illegal operation.

Section 111.570 defines the broad scope of Akron's theatrical licensing system:

No person, firm, corporation, or partnership shall act, exhibit, play, or perform any farce, play, drama, comedy, opera, or other theatrical performance, circus, feats of horsemanship, menagerie, exhibition of animals, amusement house, haunted house, fun house, panorama, diorama, concert, or other exhibition, entertainment, show, moving picture show, or amusement of whatever name or nature for which money or other reward is in any manner demanded or received, without first obtaining a license therefor issued by the Mayor.

Plaintiff had not secured a theatrical license for The Back Door.

In the week following the raid, while plaintiff endeavored to secure the necessary license, Akron City Council reacted to public appeals to permanently shut down The Back Door. Council member Otterman, representing a ward adjacent to The Back Door, proposed a new public indecency ordinance. In doing so, Mr. Otterman acted with a considerable degree of care. He contacted the city law department and apparently was advised that nude dancing as such enjoyed the protection of the First Amendment and could not be legislated into oblivion. Thus, the ordinance proposed did not center on the protected activity but upon public nudity which, of course, included nude dancing displays. Council approved the new ordinance and ultimately repealed the previously quoted section of the public indecency statute replacing it with the following provisions:

(A) No person shall knowingly or intentionally, in a public place:

(1) Engage in sexual intercourse;

(2) Engage in deviant sexual conduct;

(3) Appear in a state of nudity; or

(4) Fondle the genitals of himself or another person;

(B) For the purposes of this section only, the following definitions shall apply:

"Nudity" means the showing of the human male or female genitals or pubic area with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.

"Public Place" means any street, sidewalk, right of way, and any public or private building or place where the general public is invited.

A.C.C. § 133.06(A)-(B). This change was adopted as an emergency measure so that it took effect immediately after the Mayor signed it on October 21, 1992. As stated above, the new public indecency statute very clearly includes within its broad prohibition the nude performance dancing which The Back Door sought to exhibit.

Every member of Akron's City Council testified at one of two hearings before this court about the enactment of this legislation. The Council members stated that they enacted the law because vocal constituents in Council member Otterman's ward and else-where stated that they were opposed to the nude dancing.² The Council members did uniformly testify that they intended the law to eliminate all public nudity in Akron. When pressed to explain what public nudity the new law proscribed that was not proscribed by the old law, most of the Council members could only point to theatrical productions which included nudity, and performance dancing. One Council member testified that art classes at the University of Akron are now proscribed from using live nude models.³

The Council members were also unable to specify any nudity-related problems other than the public outcry directly related to The Back Door. No Council member testified to any concern about the kind of entertainment offered by The Back Door, except to the extent that The Back Door morally outraged a vocal constituency. One Council member agreed that his support of this legislation was in part based on his expectation that Council member Otterman would provide similar assistance should a situation like this arise in his ward. None of the law makers testified to considering any evidence or studies whether related to Akron or another city which addressed the impact of nude entertainment in general or nude "adult" entertainment in particular, on crime or other related social problems.

Summing up the City's intent, the Mayor, who by law had to sign the ordinance for it to go into effect, testified that, in his opinion Council was establishing "a community standard of sorts" by way of the new ordinance. In the Mayor's words, "There was a need there and I signed the ordinance and decided that it was a community standard being established."

Plaintiff challenges the constitutionality of Akron's new public indecency statute and Akron's theater licensing scheme. While arising in the same factual context, these challenges are legally distinct and shall be considered separately.

LAW AND ANALYSIS

Plaintiff questions the...