Wayside Restaurant, Inc. v. City of Virginia Beach

• Citation: 208 S.E.2d 51,215 Va. 231
• Parties: WAYSIDE RESTAURANT, INC., et al. v. CITY OF VIRGINIA BEACH.
• Decision Date: 28 August 1974
• Court: Supreme Court of Virginia

Page 51

208 S.E.2d 51

215 Va. 231

WAYSIDE RESTAURANT, INC., et al. v. CITY OF VIRGINIA BEACH.

Supreme Court of Virginia.

Aug. 28, 1974.

Peter G. Decker, Jr., Norfolk (Decker, Zoby, Collias & Christie, Norfolk, on brief), for appellants.

Grover C. Wright, Jr., Virginia Beach (J. Dale Bimson, City Atty., for the City of Virginia Beach, on brief), for appellee.

Before I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARMAN, Justice.

This appeal challenges the validity of Ordinance 430 ¹ (the ordinance) of the City of Virginia Beach (city), which was enacted by the council of that city on February 5, 1973.

Richard B. Wilkinson and Oscar A. Bornstein, trading as Jamaica Inn (Jamaica) were notified by the police that they would be criminally charged if the dress of the dancers in their establishment did not conform to the ordinance. A declaratory judgment suit against the city challenging the validity of the ordinance was instituted by Jamaica. Subsequently Wayside Restaurant, Inc. (Wayside), was permitted, under Rule 2:15, to intervene as an interested party. The trial court held the ordinance to be facially valid. We granted an appeal and supersedeas.

The facts here, while limited, are not in dispute. Both Jamaica and Wayside are engaged in selling refreshments, food, beer and wine at their respective business establishments in Virginia Beach. Each establishment, to promote its sales, features 'topless' female dancers as entertainment for its customers. The attire of the dancers consists of panty hose and a skimpy 'bottom.' The dancers are unclad above the waist. The dancers employed by Jamaica appear and dance to recorded music on a 'runway' at lunchtime five days a week and during the evening hours six nights a week. The parties agree that the dancers' dress, or lack of it, fails to comply with the requirements of the ordinance.

Here, as in the trial court, Jamaica and Wayside attack the ordinance on three grounds. They first assert that it is invalid because it is inconsistent with specific state laws. Secondly, they claim that the ordinance is overbroad and violates the First Amendment guarantees of free speech and assembly. Finally, they argue that the ordinance violates the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the latter amendment.

Code § 1--13.17 provides that ordinances adopted by the council of a city must not be inconsistent with the constitution and laws of the United States or of the Commonwealth.

The appellants assert here, as they did below, that the ordinance violates that proscription against inconsistency. To support this position they point to Code § 18.1--236 which makes it a misdemeanor to intentionally and obscenely display or expose one's person, or the private parts thereof, in a public place, or in any place where others are present, or to procure another to do so. They also say the ordinance is inconsistent with Code § 18.1--230 which punishes one who procures, promotes, prepares, presents, manages, directs, carries on or participates in any obscene exhibition or performance. They assert before us, for the first time, that the ordinance is also inconsistent with § 55 of the Regulations of the Virginia Alcoholic Beverage Control Board which defines lewd and disorderly conduct.

We find no merit in this attack upon the ordinance for inconsistency. While the General Assembly has seen fit, by Code §§ 18.1--230 and 18.1--236, to enact proscriptions against obscene performances and the obscene display of one's person, or the private parts thereof, as matters of state-wide concern, we are of the opinion that these state laws do not prevent a local governing body, under its police power, from enacting ordinances, not inconsistent with the state law, prohibiting conduct which the local governing body reasonably deems to be contrary to the morals, health, safety and general welfare of the community. ²

For, as we said in King v. Arlington County, 195 Va. 1084, 1090, 81 S.E.2d 587, 591 (1954):

'. . . The mere fact that the state, in the exercise of the police power, has made certain regulations does not prohibit a municipality from exacting additional requirements. So long as there is no conflict between the two, and the requirements of the municipal bylaw are not in themselves pernicious, as being unreasonable or discriminatory, both will stand. The fact that an ordinance enlarges upon the provisions of a statute by requiring more than the statute requires creates no conflict therewith, unless the statute limits the requirement for all cases to its own prescription. Thus, where both an ordinance and a statute are prohibitory and the only difference between them is that the ordinance goes further in its prohibition, but not counter to the prohibition under the statute, and the municipality does not attempt to authorize by the ordinance what the legislature has forbidden or forbid what the legislature has expressly licensed, authorized, or required, there is nothing contradictory between the provisions of the statute and the ordinance because of which they cannot coexist and be effective. Unless legislative provisions are contradictory in the sense that they cannot coexist, they are not deemed inconsistent because of mere lack of uniformity in detail . . .'

We likewise find no inconsistency between the ordinance and § 55 of the Regulations of the Virginia Alcoholic Beverage Control Board. This regulation, which has the force and effect of law under Code §§ 4--98.14 and 4--103(b), while defining certain specific acts as lewd and disorderly conduct, by its own terms does not purport to be all-inclusive. This is demonstrated by that part of the first sentence of the regulation which states: 'While not limited thereto, the Board shall consider the following conduct upon any licensed premises to constitute lewd or disorderly conduct . . ..'

Before addressing the constitutional arguments advanced by the appellants, we think it well to focus upon the crucial fact that the appellants are admittedly engaged in the licensed sale of beer and wine as a commercial enterprise. The appellants advance a number of arguments that the ordinance is overbroad, I.e., that it would proscribe the wearing of many types of socially acceptable wearing apparel and beach wear, and that dancing, as a form of expression, is speech protected by the First Amendment. The rule is that where, as here, a line can be clearly drawn between commercial and non-commercial conduct and it clearly appears that the prohibited activity is in the commercial area, the actor does not have standing to rely upon the hypothetical rights of those in the non-commercial zone in mounting an attack upon the constitutionality of a legislative enactment. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951). Since the appellants have no standing to assert the rights of those engaged in non-commercial activity, we limit our consideration of the ordinance to its effect upon the commercial activity in which the appellants are engaged, namely, the licensed sale of beer and wine.

Recently in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the United States Supreme Court had occasion to consider a challenge on First Amendment grounds to the facial constitutionality of certain California Department of Alcoholic Beverage Control regulations dealing with conduct by employees and entertainers in establishments licensed to sell alcoholic beverages. The majority, speaking through Mr. Justice Rehnquist, pointed out at p. 114, 93 S.Ct. at p. 395, 'While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare and morals . . ..'

Later, after noting that it did not disagree with the determination of the three judge District Court that the regulations would proscribe some...