Walker v. City of Kansas City, Mo.
| Decision Date | 07 August 1990 |
| Docket Number | Nos. 89-1001,89-1057,s. 89-1001 |
| Citation | 911 F.2d 80 |
| Parties | Joe E. WALKER, Jr., d/b/a Last Chance Lounge, Appellant, v. CITY OF KANSAS CITY, MISSOURI; Richard L. Berkley, Mayor of Kansas City, Missouri; The City Council of Kansas City, Missouri; Chuck Weber; Sally Johnson; Frank Palermo; Robert M. Hernandez; Joanne M. Collins; Charles A. Hazley; Dan Cofran; Katheryn Shields; Emanuel Cleaver; Mark Bryant; John A. Sharp, Appellees. Joe E. WALKER, Jr., d/b/a Last Chance Lounge, Appellee, v. CITY OF KANSAS CITY, MISSOURI; Richard L. Berkley, Mayor of Kansas City, Missouri; The City Council of Kansas City, Missouri; Chuck Weber; Sally Johnson; Frank Palermo; Robert M. Hernandez; Joanne M. Collins; Charles A. Hazley; Dan Cofran; Katheryn Shields; Emanuel Cleaver; Mark Bryant; John A. Sharp, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Errol Copilevitz, Kansas City, Mo., for appellant.
Dan G. Jackson, III, Kansas City, Mo., for appellees.
Before LAY, Chief Judge, BOWMAN, Circuit Judge, and DUMBAULD, * Senior District Judge.
In June 1985, appellant Joe E. Walker, Jr., submitted a rezoning application to the Kansas City Plan Commission requesting that his property be granted a District C-X zoning classification, which would permit him to display go-go girls in his drinking establishment, the Last Chance Lounge. The Commission recommended approval of the zoning change, which permitted Walker's application to be forwarded to the City Council for consideration. Kansas City, Mo., Zoning Ordinance Sec. 39.360(I) (1987). The Plans and Zoning Committee of the City Council held a series of hearings on the application, but over a year passed without a decision. Shortly before the City Council denied his application, Walker brought suit under 42 U.S.C. Sec. 1983 against Kansas City and its Mayor and Council members alleging that they had violated his constitutional rights to free speech and due process and that the defendants had conspired to deprive him of his civil rights. He sought both an injunction and damages. After a hearing on Walker's motion for a preliminary injunction, which was converted into a trial on the merits of the case, the District Court found no due process violation, but held that the zoning ordinance violated Walker's First Amendment rights. Walker v. City of Kansas City, Mo. (Walker I ), 691 F.Supp. 1243 (W.D.Mo.1988). Following hearings on the scope of relief, the court enjoined the city from enforcing the ordinance against Walker and, rejecting Walker's argument for compensatory damages, awarded nominal damages. Walker v. City of Kansas City, Mo. (Walker II ), 697 F.Supp. 1088 (W.D.Mo.1988). The court also awarded attorney fees to Walker. On appeal, Walker contests the trial court's dismissal of the individual City Council members, rejection of his due process claim, limitation of damages to nominal rather than compensatory, and denial of his motion for a new trial on the compensatory damages issue. The city cross-appeals the court's First Amendment the award of nominal damages and attorney fees. We reverse the judgment for Walker on his First Amendment claim and vacate the injunction and the award of nominal damages and attorney fees. In all other respects, we affirm. 1
Section 39.156(II) of the Kansas City Zoning Ordinance requires that a District C-X classification be approved by the City Council antecedent to the establishment of a variety of sex-related businesses, 2 including that which Walker intended to institute in the Last Chance Lounge--"exotic dancing." An "exotic dance facility" is defined in the ordinance as
Any building, structure or facility which contains, or is used for commercial entertainment, where the patron directly or indirectly is charged a fee to observe "specified anatomical areas," provided that the genitals and pubic area of all persons and the areola and nipple of the breasts of all female persons are opaquely covered.
"Specified anatomical areas" entail:
1. Less than completely or opaquely covered:
(c) Female breast area below a point immediately above the top of the areola.
2. Human male genitals in a discernibly turgid state even if completely and opaquely covered.
Kansas City, Mo., Zoning Ordinance Sec. 39.156(I)(I) & (P).
The particular brand of exotic dancing we deal with here--it was stressed by John Frankum, the attorney representing Walker during the Council hearings 3--is go-go dancing. Frankum objected to the derogatory connotation implicit in the term "exotic dancers," claiming that the expression was misleading. The sort of person who is interested in go-go dancers, he explained, would not necessarily be "something less than someone who would want to watch the Kansas City Symphony." Amending ch. 65, Rev. Ordinances of Kansas City, Mo., 1956: Summary of Hearings on Sec. 65.010A1952, Plans and Zoning Committee [hereinafter Zoning Committee Hearings] (May 7, 1987) (paraphrased statements of John Frankum). However characterized, Walker planned for his go-go girls to dance, for the pleasure of the customers of his bar, attired in bikini bottoms and "pasties," i.e., adhesive material covering only the areolas of the girls' breasts. The girls would be permitted by Walker, however, to cover more of their breasts, as they preferred. Id. (statements of John Frankum). In any event, the sort of entertainment Walker hoped to provide at his establishment is undoubtedly covered by section 39.156 of the Kansas City zoning ordinance, and Walker does not argue to the contrary.
Because the Last Chance Lounge is located within one thousand feet of a residential district, Walker was not eligible for a District C-X classification for that property unless he could obtain the signatures of a simple majority of the residents and property owners within a radius of one thousand feet. There is no time limit to acquiring the signatures and so, ten months after filing his application, Walker presented the City Plan Commission with a waiver petition containing the names of nineteen of the thirty-seven residents located near his lounge. 4 That same day, in April 1986, the Commission approved the waiver and recommended approval of the application, which was forwarded to the City Council. 5
The Plans and Zoning Committee of the City Council discussed Walker's application at length during a series of meetings held at intervals throughout the ensuing period of approximately twenty months. Presentations by citizens opposed to the rezoning classification consumed the bulk of the hearings; indeed, except for the remarks of Council members and Walker's attorneys, discussion at the meetings consisted entirely of the protestations of private citizens in opposition to the rezoning. In all, roughly forty to fifty people spoke against the zoning change. 6 Zoning Committee Hearings (May 28, 1987). Eventually the matter reached the full Council (without a recommendation from the committee), and on December 17, 1987, the Council voted to reject the application.
In October 1987, approximately two months before the Council's vote, Walker brought this lawsuit alleging that the zoning ordinance violated his free speech and due process rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution. In December he moved for a temporary restraining order and a preliminary injunction. Failing to pursue this motion, Walker filed a renewed motion for a preliminary injunction some weeks later. In the interim the city and the Council members--whom Walker had sued in their individual capacities--filed a motion to dismiss, which the District Court granted as to the individual Council members. Subsequent to the hearing on the preliminary injunction, the parties agreed to treat that hearing as a trial on the merits and thus submitted post-trial briefs. In addition to the testimony adduced at the hearing, the court received reams of city documents and videotapes of various City Council meetings. In June 1988, the District Court issued its memorandum opinion and order in which the court rejected Walker's due process claims but found a violation of his First Amendment rights. Walker I, 691 F.Supp. 1243 (W.D.Mo.1988). After additional hearings, the court entered an injunction prohibiting the city from enforcing the ordinance against Walker and awarded Walker nominal damages, but denied compensatory damages, finding that the evidence was insufficient to establish the amount of such damages with reasonable certainty. Walker II, 697 F.Supp. 1088 (W.D.Mo.1988). The parties subsequently stipulated to the award of attorney fees and the court entered an order approving the stipulation on November 22, 1988.
We affirm the District Court's denial of Walker's due process claims but reverse its judgment for Walker on his First Amendment claim. Accordingly, we vacate the injunction and the award of nominal damages and attorney fees. Our decision moots Walker's claim against the City Council members in their individual capacities and his claim for compensatory damages.
Walker asserts that the entertainment he proposed to introduce at the Last Chance Lounge--pasty-clad dancing girls--constitutes "speech" within the meaning of the First Amendment. "[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 3069 n. 5, 82 L.Ed.2d 221 (1984). Although the burden is thus his, Walker cites only the dictum from one Supreme Court case suggesting that nude dancing is protected speech while ignoring no small amount of dicta--as well as actual holdings--from other cases indicating the contrary.
The statement upon which Walker rests the entire force of his claim that semi-nude dancing...
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