Village of Winslow v. Sheets

• Decision Date: 09 February 2001
• Docket Number: No. S-99-1224.,S-99-1224.
• Citation: 622 N.W.2d 595,261 Neb. 203
• Parties: The VILLAGE OF WINSLOW, Nebraska, a municipal corporation, Appellee and Cross-Appellant, v. Calburt SHEETS, also known as Cal Sheets, also known as Calvin Sheets, doing business as Club 77, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

622 N.W.2d 595

261 Neb. 203

The VILLAGE OF WINSLOW, Nebraska, a municipal corporation, Appellee and Cross-Appellant, v. Calburt SHEETS, also known as Cal Sheets, also known as Calvin Sheets, doing business as Club 77, Appellant and Cross-Appellee.

No. S-99-1224.

Supreme Court of Nebraska.

February 9, 2001.

Anthony S. Troia, Omaha, for appellant.

David C. Mitchell and Timothy M. Schulz, of Yost, Schafersman, Lamme, Hillis, Mitchell, Schulz & Twidwell, P.C., Fremont, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

INTRODUCTION

Café 77, Inc., owned and operated by Calburt Sheets (Café 77), appeals the district court's decision granting a permanent injunction to the Village of Winslow, Nebraska (Village), which enjoined Café 77 from providing totally nude dancing, consisting of exposure of the dancers' genitals, pubic area, and/or buttocks while performing on stage or for individual clients.

FACTUAL BACKGROUND

Winslow is an incorporated village consisting of approximately 140 people, located just outside the city limits of Fremont, Nebraska. On June 8, 1998, the Village adopted ordinance No. 90, which states:

WHEREAS, it is the intent of the Village of Winslow to prohibit the exploitation of human nudity for the purpose of advertising, selling, or otherwise promoting the economic interests of any type of business enterprise. It is also the intent of the Village of Winslow to further the government's interest in avoiding the harmful secondary effects of this activity such as prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure. This prohibition is not intended to extend to any expression of opinion or the performance of a bona fide play, ballet, or drama protected by the First Amendment to the Constitution of the United States or by Article I, § 5 of the Constitution of the State of Nebraska[.]

....

... It shall be unlawful for any person to intentionally expose his or her genitals, pubic area, or buttocks while employed in providing any service, product, or entertainment in any business or commercial establishment. It shall also be unlawful for anyone to aid, abet, assist or direct another person to intentionally expose his or her genitals, pubic area, or buttocks while employed in providing any service, product, or entertainment in any business or commercial establishment.

....

... [A]ny activities in violation of this Section shall be deemed to be a nuisance and may be abated and suppressed by injunctive or other equitable relief as allowed by law.

The Village passed ordinance No. 90 a few weeks after Café 77, an establishment offering completely nude exotic dancing along with food and nonalcoholic drinks, opened along Main Street in the Village. The Village was not aware that Café 77 intended to offer nude dancing, and Café 77 did not apply for a business permit from the Village prior to opening. Café 77 was open for business on Friday and Saturday nights from midnight to at least 3 a. m. Complaints from Village citizens led the Village board to call a meeting on June 8, 1998, to adopt ordinance No. 90.

The minutes of the June 8, 1998, meeting state the concerns of the citizens regarding the operation of Café 77, including patrons' consuming alcohol on Main Street in front of the establishment, urinating in the street, parking illegally, harassing people on Main Street, swearing, carrying alcohol, and littering. It was also noted in the minutes that a female resident had been propositioned to dance at the establishment and that having a completely nude dancing establishment in the Village was not good for the children in the community.

After ordinance No. 90 was adopted, the Village filed a motion for a temporary and permanent injunction against Café 77, which was heard on July 7, 1998. The Village introduced evidence that Café 77 was operating in violation of ordinance No. 90 by offering completely nude dancing inside its premises. The court granted a temporary injunction and enjoined Café 77 from providing totally nude dancing. Sheets voluntarily closed Café 77, and it has not been in operation since that time.

Ordinance No. 90 was amended and readopted as ordinance No. 96 on June 9, 1999. Ordinance No. 96 contains language identical to the language in ordinance No. 90, except that the wording of § 2, dealing with fines for violating the ordinance, was changed. The punishment for a violation under ordinance No. 90 was a fine of up to $100 per violation and payment of prosecution costs. Ordinance No. 96 added to the punishment "any other costs and expenses as allowed by law."

Trial on the permanent injunction was held on September 28, 1999. The parties submitted a stipulation as to various facts in the case. Included in this stipulation was the agreement that the named business in the case should be Café 77, which had been misidentified as Club 77 in the original pleadings. The parties also stipulated that both ordinances were passed and adopted by the Village in a procedurally correct manner. In addition to the stipulated facts, evidence was also presented by various witnesses.

Launette Kotik, the Village clerk, testified that she lives next door to the building where Café 77 is housed. Kotik testified that on Friday and Saturday evenings, when Café 77 was operating, she observed large numbers of people going into Café 77. Some of these patrons parked in her backyard and refused to move their cars when she asked them to. Kotik testified that the music was very loud and that several of the patrons appeared drunk. Kotik also observed patrons urinating in her yard and throwing beer cans in her yard whenever Café 77 was open. On one occasion, Kotik saw some men standing outside the bar speaking to her daughter as she was walking into their house.

Since the Village does not have its own law enforcement personnel, Kotik called the Dodge County Sheriff's office to report people urinating and littering on at least two occasions. However, by the time law enforcement could arrive, the offenders were no longer present.

Ed Leeper, the chairman of the Village board, also testified. He stated that he observed patrons urinating in the street by Café 77 and off the back deck of Café 77. He also saw patrons throwing beer cans in the street and in the surrounding yards. He noted that Café 77 caused extra traffic and parking problems on Friday and Saturday evenings. He also noted that he received complaints from the citizens of the Village about the impact of Café 77 on the community's children.

Kotik's daughter testified that one night as she was returning home about 12:30 a.m., the two doormen at Café 77 called out to her and asked if she was one of the dancers. She said no. They responded, "We could pretend that this is amateur night and you could come in and dance for us." She did not answer and went inside her house. This was the same incident Kotik had observed. Sheets, the owner of Café 77, also testified. He stated that in addition to owning Café 77, he also owns the Lariat Club, Inc. The Lariat Club is a bar located in nearby Fremont which features topless dancing. When Café 77 opened, the marquee outside the Lariat Club read:

NOW OPEN CAFE 77

DANCERS FRI SAT

JUICE SERVED 12 AM

Sheets testified that on a typical evening at Café 77, between five and six dancers would perform dances, including dancing completely nude. The dancers also performed in a "tent" area, where the dancers gave similar performances, but for one patron alone and at an additional charge. Sheets also stated that he believed he had to shut down Café 77 after the temporary injunction was issued, although the injunction says nothing about closing Café 77, but simply prohibits the dancers from appearing with "genitals, pubic area, or buttocks" exposed. Sheets still owns the building where Café 77 operates and maintains the outside of the premises. Sheets' testimony indicates that he intends to operate Café 77 as a completely nude dancing establishment if the injunction is lifted.

Finally, Michele Lynn Winslow, a dancer at the Lariat Club, Café 77, and other establishments, testified. She stated that her dances include costumes, music, and practiced routines. She stated that about half of her income comes from dancing at topless establishments like the Lariat Club and half from completely nude dancing establishments like Café 77. The attorney for the Village asked her, "So if I understand you correctly then, you're able to convey your erotic message equally to clubs where you—where it is topless only as opposed to totally nude, correct?" She responded, "Yes."

The court found that ordinance No. 90, as amended by ordinance No. 96 (hereinafter ordinance No. 96), is a valid ordinance "not specifically directed at expression and there are no vested rights or first amendment rights of the Defendant which are being unlawfully impinged upon by the Plaintiff." The court granted a permanent injunction, to wit:

"Defendants, and each of them, are hereby enjoined and prohibited from providing totally nude dancing or entertainment consisting of the exposure of the employee or dancer's genitals, pubic area and/or buttocks while performing at the establishment located on 301 Main Street in Winslow, Nebraska which is known as Cafe 77."

Café 77 appealed, and we moved the case to our court pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. Neb.Rev. Stat. § 24-1106(3) (Reissue 1995).

ASSIGNMENTS OF ERROR

Café 77 asserts, restated, that the trial court erred in (1) finding that ordinance No. 96 is not specifically directed at expression, (2) finding that ordinance No. 96 does not violate the First Amendment, (3) failing to find that ordinance No. 96 is unconstitutionally vague, and (4) finding that the entertainment presented at Café 77 constituted a...