Wreck Bar, Inc. v. Comolli
| Decision Date | 12 July 1994 |
| Docket Number | Civ. A. No. 94-0324-T. |
| Citation | 857 F. Supp. 182 |
| Parties | The WRECK BAR, INC. d/b/a Centerfolds and James Armenakes v. Richard D. COMOLLI, Samuel A. Azzinaro, Barry F. Cole, Joseph P. Brancato, Mary Jane DiMaio, Patricia A. Douglas, and Quentin J. DeSimone, Members of the Town Council of Westerly, and Mark S. Champlin, Chief of Police for the Town of Westerly. |
| Court | U.S. District Court — District of Rhode Island |
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Stephen J. Fortunato, Jr., Fortunato & Tarro, Warwick, RI, for plaintiffs.
Kelly M. Fracassa, Westerly, RI, for defendants.
This is an action to declare void an ordinance prohibiting topless dancing as a form of entertainment in establishments licensed to sell alcoholic beverages and to enjoin municipal officials from prosecuting the plaintiffs or revoking their liquor license for presenting such entertainment. The action is brought pursuant to 28 U.S.C. § 2201 (the Declaratory Judgment Act) and 42 U.S.C. § 1983 (the Civil Rights Act of 1871).
The essence of the plaintiffs' claim is that the ordinance in question violates the plaintiffs' right to freedom of speech under the First and Fourteenth Amendments to the United States Constitution.1 For reasons stated below, the plaintiffs' claims are denied and dismissed.
James Armenakes is the president and principal shareholder of the Wreck Bar, Inc., a corporation that owns and operates an establishment known as Centerfolds. Centerfolds is located in the Misquamicut section of Westerly, Rhode Island, and is licensed to sell liquor by the drink. Its license was issued by the Town of Westerly which, under state law, has the authority to issue and revoke such licenses. See R.I.Gen.Laws § 3-5-21.
Misquamicut is a commercial area bounded on one side by the Atlantic Ocean. It includes several public beaches, an amusement area and 11 businesses that sell liquor. Reports of public drinking and disorderly conduct are not uncommon in the area.
On May 11, 1994, Centerfolds obtained a license from the Town of Westerly permitting the presentation of live entertainment. The regulations then governing such licenses prohibited topless dancing. Those regulations were superseded on May 23, 1994, when the Westerly Town Council adopted the Ordinance at issue in this case. The pertinent portion of that Ordinance prohibits exposure of any portion of the female breast below the top of the areola in any "commercial establishment located within the Town of Westerly, Rhode Island, at which alcoholic beverages are offered for sale for consumption on the premises." Violation of the Ordinance is punishable as a misdemeanor and/or by revocation of the establishment's liquor license. Westerly Code of Ordinances, ch. 1070, art. V, § 7-89 (1994).
Since May 11, the principal form of entertainment at Centerfolds has consisted of female dancers who gradually remove articles of clothing until they are clad in thong bikinis which cover the requirements of the Ordinance but little else. The dancers are supplied by an entertainment agency and perform either on a raised platform or, for an additional fee, on individual tables. Bar patrons are permitted to show their appreciation by stuffing currency in the g-strings or garters worn by the dancers. Among the other forms of entertainment featured are "amateur strip nights," in which the dancers are non-professional volunteers, and "XXX banana eating contests," the object and rules of which were not explained.
In mid May, topless dancing was presented for a three day period without incident. However, on several occasions there have been problems associated with adult entertainment. On one occasion, a patron had to be escorted from the premises for fondling one of the dancers. On another occasion, after performing a series of pelvic thrusts while rubbing her genitals, and then turning her back to the audience, bending over and spreading her buttocks, a dancer lay in a supine position with her legs spread and extended upward. From that position, she used what, in wrestling parlance is known as a "scissors" hold, to press a patron's face against her crotch.
According to Mr. Armenakes, Centerfolds is losing money but could operate at a profit if it is permitted to present completely topless dancing. Accordingly, the plaintiffs seek to have Ordinance 7-89 declared unconstitutional.
The origins of Ordinance 7-89 may be traced to a study conducted by the Town Council's Public Safety Subcommittee. That study began as a general review of Town ordinances relating to safety matters and was prompted by a murder taking place in Westerly which the defendants acknowledge had nothing to do with adult entertainment in liquor establishments. During the course of its review, the subcommittee became concerned about the potential for disturbances posed by such entertainment. Those concerns, as well as the belief that activity of that type should be eliminated in order to preserve a "high level of decency" in the community, were transmitted to the full Council. Those concerns were exacerbated by an incident that occurred on April 21, 1994, at a private club licensed to serve liquor. Several female dancers hired to provide entertainment at a "bachelor party" engaged in various sex acts with some of the men in attendance. A number of arrests were made and it was later discovered that one of the dancers was a minor.
The May 23, 1994, public hearing at which Ordinance 7-89 was adopted was brief and consisted primarily of questions addressed to the Town Solicitor by members of the Town Council and citizens in attendance. However, prior to the hearing, the Council had been furnished with a packet of reports compiled by the Police Department describing incidents of unlawful behavior and disturbances occurring in the Misquamicut area. Those reports indicate that during a three-year period, four disturbances specifically attributable to establishments providing adult entertainment occurred but only one was deemed sufficiently serious to warrant an arrest. They also indicate that numerous other incidents occurred in the vicinity of those establishments, but it is difficult to say with any certainty whether they were different in character or frequency from disturbances often associated with any bar. Before the hearing, the Council, also, had met in executive session with the Town Solicitor, the Town Manager, the Director of Public Safety and the Chief of Police to discuss the reports and the bachelor party incident as well as the wording of the proposed ordinance.
For many years, courts have struggled in their efforts to delineate the extent to which the First Amendment's prohibition against laws "abridging the freedom of speech" restricts governmental authority to regulate conduct that may play a role in communicating an idea or message. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (). But see United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) (). Nevertheless, despite the proliferation of judicial opinions on the subject, the line of demarcation between "conduct" that may be regulated and "speech" that may not be regulated remains fuzzy.
A review of the case law identifies two factors that are central to a determination regarding the extent to which a State may constitutionally regulate a given type of conduct that includes an element of communication. They are:
1. The degree to which the conduct constitutes a form of expression as opposed to non-communicative acts; and
2. The source of the State's power to regulate that type of conduct.
Conduct does not become speech entitled to First Amendment protection merely because it includes some element of expression.
It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one's friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) (quoting Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)). In this connection, the Supreme Court has stated that:
We cannot accept the view that an apparently limitless variety of conduct can be labelled `speech' whenever the person engaging in the conduct intends thereby to express an idea.
O'Brien, 391 U.S. at 376, 88 S.Ct. at 1678.
One matter that is considered in distinguishing between protected "speech" and unprotected "conduct" is whether the conduct in question includes acts that are proper subjects of government regulation.
... as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases. State may sometimes proscribe expression that is directed to the accomplishment of an end that the State has declared to be illegal when such expression consists, in part, of "conduct" or "action."
California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972).
These principles have been applied specifically to dancing. Whether First Amendment protection extends to dancing depends on the nature of the dancing or, more precisely, on the degree to which...
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Willis v. Town of Marshall, CIV. 1:02CV217.
...but that "dancing that is part of a performance presented to others, may be a protected form of expression." Wreck Bar, Inc. v. Comolli, 857 F.Supp. 182, 186 (D.R.I.1994). ...
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El Marocco Club, Inc. v. Richardson
...both the Federal District Court for the District of Rhode Island, as well as by the Rhode Island Superior Court. In Wreck Bar, Inc. v. Comolli, 857 F.Supp. 182 (D.R.I.1994), the District Court for the District of Rhode Island upheld a virtually identical ordinance that had been adopted by t......
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WILLIS v. TOWN OF MARSHALL, Civil No. 1:02CV217 (W.D.N.C. 11/25/2003)
...but that "dancing that is part of a performance presented to others, may be a protected form of expression." Wreck Bar, Inc. v. Comolli, 857 F. Supp. 182, 186 (D.R.I. 1994). ...