DPR, Inc. v. City of Pittsburg
Case Date: 01/23/1998
Court: Court of Appeals
Docket No: 76352
24 Kan. App. 2d 703 No. 76,352 DPR, INC., a Kansas Corporation, d/b/a PAT'S LOUNGE; PATRICIA ROHRBAUGH, as President of DPR, INC.; and DON ROHRBAUGH, as Secretary/Treasurer of DPR, INC.; as officers of said corporation and in their own proper persons, Appellants, v. CITY OF PITTSBURG, KANSAS, Appellee. SYLLABUS BY THE COURT 1. Ordinarily, the constitutionality of government action can only be challenged by a person directly affected, and such challenge cannot be made by invoking the rights of others. A special exception to this rule permits a party to raise overbreadth arguments when a statute purports to regulate First Amendment rights of others. 2. Under the Twenty-first Amendment to the United States Constitution, a state's regulatory power over intoxicating liquors and places that sell them is largely unfettered by the Commerce Clause. 3. Despite its power under the Twenty-first Amendment, a state may not exercise that power in such a way as to deprive citizens of their First Amendment rights. If there is a conflict between the First and Twenty-first Amendments, the First Amendment controls over the Twenty-first Amendment. 4. Article 2, § 16 of the Kansas Constitution Bill of Rights and K.S.A. 12-3004 are discussed and applied. 5. A city need not show specific examples of pernicious secondary effects caused by a drinking establishment before it can regulate that business. The city may rely on evidence from other cities so long as such evidence is reasonably believed to be relevant to the problem addressed. 6. An ordinance which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is vague and violative of due process. 7. In determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. 8. Ordinance G-741, involved herein, is not unconstitutionally vague. 9. An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing the law's constitutionality from its unconstitutional applications. 10. The provision of the ordinance prohibiting the showing of any motion picture "not given a rating by the Motion Picture Association of America of G, PG, PG-13, or R" is unconstitutionally overbroad. 11. Section 4(F) of the ordinance prohibits the showing of movies or photographs which display certain parts of the human anatomy on the premises of a drinking establishment. This section of the ordinance is unconstitutionally overbroad. 12. Section 4(B) of the ordinance prohibits the touching, caressing, or fondling of certain parts of the human anatomy on the premises of a drinking establishment. This provision would criminalize close dancing between an employee and his or her spouse and is unconstitutionally overbroad. 13. Under the facts shown in this case, totally nude dancing is not a First Amendment right, and the city ordinance is valid in its attempt to ban totally nude dancing on the premises of a drinking establishment. Appeal from Crawford District Court; NELSON E. TOBUREN, judge. Opinion filed January 23, 1998. Affirmed in part and reversed in part. William J. Pauzauskie, of Topeka, for the appellants. C. A. Menghini, city attorney, for the appellee. Donald L. Moler, Jr., for amicus curiae League of Kansas Municipalities. Before LEWIS, P.J., GERNON, J., and CHARLES E. WORDEN, District Judge, assigned. LEWIS, J.: Appellant DPR, Inc., whom we shall refer to as plaintiff, has been operating in the City of Pittsburg (City) for over 15 years. The owners of DPR, Inc., Patricia and Don Rohrbaugh, operate a business known as "Pat's Lounge." This business is licensed to sell alcoholic beverages by the drink. It also features totally nude dancing as entertainment. It is worth noting that Pat's Lounge had been in the business of serving intoxicating liquors and presenting nude dancing to the public for approximately 15 years prior to the enactment of the ordinance which is the focal point of this action. The ordinance in question regulates the services and entertainment offered by Pat's Lounge and prohibits totally nude dancing and certain other activities. The ordinance applies only in places where alcoholic beverages are sold. At the present time, Pat's Lounge is the only business in Pittsburg affected by the ordinance. Plaintiff filed this declaratory judgment action, seeking to have the constitutionality of the ordinance determined. The trial court found the ordinance to be constitutional in all respects, and plaintiff appeals. The facts are not remarkable, although it does appear that plaintiff is caught in a web created by a city council that misread the future. For all intents and purposes, considering the type of establishment Pat's Lounge is, that business has caused very little trouble to law enforcement officers in the City over the past 15 years. The defining event in this controversy came with the news that a proposed racetrack would be located near Pittsburg. The city council looked ahead and saw a future littered with nude dancing establishments. It was not the kind of future the council wanted to see. The result was ordinance G-741, which banned totally nude dancing and restricted other activities in establishments that sell alcoholic beverages. The racetrack did not attract a great number of people to the Pittsburg area and has closed. As near as we can tell from this record, no other totally nude dancing establishments were opened and, at this time, plaintiff operates the only establishment that is subject to the provisions of the ordinance. STANDARD OF REVIEW This is a case involving the constitutionality of a city ordinance. Our standard of review is set out in City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979), as follows:
STANDING In many respects, plaintiff's argument against the ordinance is focused on the rights of plaintiff's customers and not itself. The City argues that plaintiff has no standing to raise these issues. "The constitutionality of government action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others." Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974). In United States v. Hays, 515 U.S. 737, 742-43, 132 L. Ed. 2d 635, 115 S. Ct. 2431 (1995), it was said:
Among other things, plaintiff attacks those portions of the ordinance which prohibit the showing of certain motion pictures, photographs, and other materials. There is nothing in the record to indicate that plaintiff's operation would be affected by this particular section of the ordinance. The City argues that under the circumstances, plaintiff has no standing to raise the issue. Despite the general rule as set out above, we conclude that plaintiff does, indeed, have standing to invoke the rights of its customers in this case. In State v. Neighbors, 21 Kan. App. 2d 824, 829, 908 P.2d 649 (1995), we said:
In this case, the challenge to the ordinance by plaintiff has an impact on the First Amendment rights of others. Our Supreme Court, in City of Wichita v. Wallace, 246 Kan. 253, 267, 788 P.2d 270 (1990), explained the special rule as follows:
We rely on Neighbors, Wallace, and other similar cases cited in our opinion in deciding that plaintiff does have standing to raise issues involving the rights of third parties in its First Amendment overbreadth and vagueness attack on the ordinance. TWENTY-FIRST AMENDMENT VS. FIRST AMENDMENT There is an issue between the parties as to what section of the United States Constitution is implicated by the ordinance and, if more than one section is implicated, which one controls. The City argues that it has the power to regulate private clubs selling alcoholic beverages, that this power springs from the Twenty-first Amendment, and that this amendment controls even in the face of alleged First Amendment violations. The trial court held that in this case the statute was framed by the Twenty-First Amendment and said:
The trial court further stated:
We live in a nation in which opinions may be stated or published which many of us find contrary to our core beliefs and are repelled by. Despite the fact that some of these statements trigger overwhelming public outcry and disgust, they cannot be silenced. We have not and will not infringe upon the free speech rights of others. We take this position because the First Amendment to the United States Constitution may, of all of the amendments, truly reflect the freedom of our society. The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." It requires no citation of authority to note that this amendment limits state action under the Fourteenth Amendment to the United States Constitution. The Twenty-first Amendment, on the other hand, came about as a result of the failure of the experiment with Prohibition in the United States. After that experiment had been declared a total failure, the Twenty-first Amendment was proposed and ratified. It reads: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Despite its rather confusing language, the purpose of the Twenty-first Amendment was simply to get the federal government out of the business of regulating liquor sales. The history of that Amendment is detailed in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. __, 134 L. Ed. 2d 711, 735, 116 S. Ct. 1495 (1996). In Liquormart, the United States Supreme Court said:
Liquormart was a case in which the State of Rhode Island had absolutely and without exception banned the publication or broadcasting of any price of an alcoholic beverage. The State argued that it had the right to do this under the Twenty-first Amendment and that its power under the Twenty-first Amendment overruled any First Amendment rights of the defendants. The State, in making this argument, relied on California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972). In LaRue, the court applied the Twenty-first Amendment to uphold a ban on grossly sexual exhibitions in premises licensed to serve alcoholic beverages. The Supreme Court distinguished LaRue and held the Rhode Island ban on liquor advertising to be unconstitutional under the First Amendment:
The Liquormart decision establishes the supremacy of the First Amendment in cases involving the Twenty-first Amendment right of states to regulate the sale of intoxicating liquor. The First Amendment, where implicated, trumps the authority of the State to regulate the sale of liquor under the Twenty-first Amendment. To the extent the trial court may have held to the contrary, it is wrong, and we will apply the rule developed in this opinion. We have no doubt that the City, acting under the Twenty-first Amendment, has very broad authority to exercise its police power regulating establishments selling alcoholic beverages. There seems to be little constitutional restraint against the exercise of that power. However, a very important restriction on the police power of the City under the Twenty-first Amendment is that the exercise of that power cannot violate rights granted to citizens under the First Amendment. Whether the First Amendment applies or has been violated in this case will be analyzed as this opinion develops. However, we recognize the general power of the State under the Twenty-first Amendment to regulate the sale of intoxicating beverages. To the extent the City's exercise of the Twenty-first Amendment does not unduly interfere with rights protected by the First Amendment, it will be valid. However, to the extent the ordinance violates the First Amendment rights of plaintiff or its customers, it is unconstitutional and cannot stand. DOES THE ORDINANCE CONTAIN MORE THAN ONE SUBJECT? Article 2, § 16 of the Kansas Constitution provides that "[n]o bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes." K.S.A. 12-3004 states:
Plaintiff, relying on the Kansas Constitution and K.S.A. 12-3004, argues that ordinance G-741 is unconstitutional because it contains more than one subject. We disagree. The title to the ordinance in question reads: "AN ORDINANCE REGULATING CERTAIN ACTIVITIES UPON THE PREMISES OF DRINKING ESTABLISHMENTS, CLASS A AND CLASS B CLUBS, CATERERS, AND ESTABLISHMENTS LICENSED TO SELL CEREAL MALT BEVERAGES AND PROVIDING PENALTIES FOR THE VIOLATIONS OF THE ACTS PROHIBITED HEREIN." The Kansas Supreme Court in State v. Reves, 233 Kan. 972, 978, 666 P.2d 1190 (1983), said:
This issue has also been discussed in Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976), and City of Kansas City v. Tipton, 193 Kan. 651, 396 P.2d 350 (1964). After examining the record and becoming familiar with the controlling authorities on the subject, we hold that the ordinance in question is not unconstitutional because it contains more than one subject. The ordinance deals with certain behaviors prohibited in establishments that serve alcoholic beverages. The principal thrust of the ordinance is to outlaw totally nude dancing in places selling alcoholic beverages. As we read the ordinance, it deals with only one subject and that is the prohibition of activities within an alcohol-serving establishment. Plaintiff's argument to the contrary is without merit. STATE PREEMPTION Plaintiff next argues that the State of Kansas has preempted the issues of nude dancing and that the local ordinances are invalid for that reason. We disagree. State v. McGraw, 19 Kan. App. 2d 1001, 879 P.2d 1147 (1994), is relied upon by plaintiff. Plaintiff argues that McGraw allows nonobscene public dancing and that the City has no authority to regulate that category of behavior. Plaintiff's reliance on this decision is misplaced. McGraw held that nude dancing is protected by the First Amendment unless it is obscene. Plaintiff next argues that the ordinance conflicts with K.S.A. 41-2611, K.S.A. 41-2614, and K.S.A. 41-2623. These statutes deal with grounds for revocation of a liquor license, hours of operation, and qualifications to receive a liquor license. We have examined the statutes in question and find nothing to indicate that the State intended to preempt the regulation of private clubs. On this issue, we agree with the trial court, which said:
LOSS OF INCOME Plaintiff argues that the trial court erred in finding that "[t]he evidence presented does not support a claim or finding that the establishment has lost substantial business or that it has been significantly less profitable than it was before the ordinance was adopted and enforced." We have examined the record, and we agree with the trial court. Plaintiff did not present its books and records at trial. It is true that plaintiff's operator testified that in her opinion the lounge had lost business since the passage of the ordinance, but there was evidence to the contrary. Plaintiff simply did not document its loss of income in a manner sufficient to satisfy the rules of evidence. The finding made by the trial court was a negative finding on this issue. In the case of a negative finding, "'there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it.'" City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997). In this case, there is nothing in the record to impel us to overrule the trial court's findings of fact on this issue. PERNICIOUS SECONDARY EFFECTS Plaintiff suggests that nude dancing can only be regulated if there is a showing of pernicious secondary effects from the operation of the establishment in question. This argument springs from plaintiff's belief that the ordinance was intended to regulate only the business of Pat's Lounge. Although, as we have noted, Pat's Lounge is the only business currently being regulated by the ordinance, we conclude that the city council did not intend to single out that business. The city council was concerned over new establishments coming into town and offering nude dancing. We believe that had the new racetrack not been proposed for the Pittsburg area, it is doubtful that such an ordinance would have been suggested, let alone adopted. The City, in passing the ordinance, was reacting to false optimism concerning a proposed racetrack and, in deciding to pass the ordinance, considered problems encountered by other similar communities. In fact, Pat's Lounge was a relatively stable, trouble-free business considering what went on within its walls. There were isolated incidents of pernicious secondary effects as a result of the operation of Pat's Lounge, but they were somewhat rare and relatively minor. We do not believe that a city must show specific examples of pernicious secondary effects caused by a drinking establishment before it can regulate that business. In Renton v. Playtime Theaters, Inc., 475 U.S. 41, 51-52, 89 L. Ed. 2d 29, 106 S. Ct. 925, reh. denied 475 U.S. 1132 (1986), the Court said:
The trial court in the instant matter held as follows on this issue:
Further, the trial court found:
We agree with the comments of the trial court. The action of the City is supported by evidence of secondary effects from establishments which sell liquor and allow totally nude dancing, which is taken from other similar establishments in other cities. This, when coupled with the relatively minor evidence of those effects associated with Pat's Lounge, supports this particular exercise of the police power of the City. TELEVISION BROADCAST, MOVIES, PHOTOGRAPHS, AND MAGAZINES Section 4 of the ordinance reads as follows:
We note that section 4 is the heart of the ordinance, and it is the portion of the ordinance which criminalizes certain behavior. Plaintiff attacks certain provisions of section 4 as unconstitutionally overbroad and/or vague. As suggested, the violation of section 4 of the ordinance or any part thereof is a crime with a potential penalty of not more than 60 days in jail and a fine of not less than $500 nor more than $1,000. The difference between overbroad and vague, as used in this context, is discussed by the Supreme Court in City of Wichita v. Wallace, 246 Kan. 253, 264, 788 P.2d 270 (1990):
The overbreadth standards are addressed in Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 71-72, 697 P.2d 1310 (1985):
In State v. Neighbors, 21 Kan. App. 2d 824, 826, 908 P.2d 649 (1995), we said:
In Neighbors, we found the ordinance in question to be constitutional because "[t]he statute clearly sets forth the particular items within its scope. A person of common intelligence need not guess whether the statute forbids the sale of metal knuckles, regardless of whether they are characterized as paperweights, belt buckles, historic replicas, or wall hangings." 21 Kan. App. 2d at 827. We conclude that based on the authorities cited above, this ordinance is not unconstitutionally vague. The language of the ordinance is clear and concise, and no patron or employee of Pat's Lounge could harbor any doubt about what is prohibited. The City has acted in no uncertain terms to prohibit total nudity within Pat's Lounge, and that should be clear to anyone reading the ordinance. We do not consider the ordinance to be unconstitutionally vague. The fact that we conclude the ordinance is not unconstitutionally vague does not mean it cannot be unconstitutionally overbroad. In State v. Hughes, 246 Kan. 607, 792 P.2d 1023 (1990), the Supreme Court said:
We note that we deal in this case with a declaratory judgment action in which no one has of yet been charged with a violation of the ordinance. As a result, the challenge in this case is considered to be "facile" in character. We are required to determine only "whether the enactment reaches a substantial amount of constitutionally protected conduct." Dodger's Bar & Grill v. Johnson Cty. Bd. of Com'rs, 32 F.3d 1436, 1442 (10th Cir. 1994). It is our conclusion that certain parts of section 4 of the ordinance are overbroad and, therefore, unconstitutional. Section 4(G) of the ordinance prohibits the showing on the premises of Pat's Lounge of any motion picture "not given a rating by the Motion Picture Association of America of G, PG, PG-13 or R." We conclude this section of the ordinance is far too broad in its sweep. Although it may have been intended to ban the showing of pornographic movies, its scope is much broader. Plaintiff points out that this provision of the ordinance would effectively ban movies as diverse as "National Velvet" and "Birth of a Nation" simply because these movies do not bear a rating by the Motion Picture Association of America. An overbroad statute "'makes conduct punishable which under some circumstances is constitutionally protected.'" City of Wichita v. Wallace, 246 Kan. at 264. It is not a crime to view movies which do not bear the rating of the Motion Picture Association of America, and we have no doubt there is a protected First Amendment right to do so. Despite this, section 4(G) of the ordinance would make it a crime to view a movie such as "National Velvet" within the confines of the bar. We know of no one who would reason that citizens do not have a constitutional right to view that movie under the First Amendment. Although the ordinance may be aimed at so-called XXX-rated movies, its language bars any movie not rated G, PG, PG-13, or R. This is an attempt to criminalize the exercise of a First Amendment right, and this portion of the ordinance is unconstitutionally overbroad and, therefore, invalid. Section 4(F) of the ordinance prohibits the showing of motion pictures, photographs, videotapes, etc., which depict any of the acts prohibited by paragraph D. Paragraph D bans actions involving, simulating, or showing:
The right to possess certain photographs, which may be contained within a magazine, for instance, is obviously a First Amendment right. There are publications that patrons might bring with them to the bar which display actions or portions of the anatomy that are within the purview of section 4(F). The ordinance does not require that the banned material be obscene or pornographic, only that it depict that which is forbidden. The problem with the ordinance is that in its broad scope, it would criminalize bringing photographs of some of our great objects of art into Pat's Lounge. We cite as an example a statue by Auguste Rodin named "The Kiss." This statue shows two obviously nude individuals in the act of kissing and does show some of the body parts which are prohibited by paragraph D of the ordinance. There are a number of other publications which are protected by the First Amendment and which are legal to possess which might depict some portion of the male or female anatomy prohibited by paragraph D. We consider, therefore, that section 4(F) is unconstitutionally overbroad. It would criminalize the possession by individuals of photographs, etc., the protection of which is guaranteed by the First Amendment. We hold, therefore, that this provision of the ordinance is unconstitutionally overbroad and invalid. Section 4(B) of the ordinance prohibits "[e]ncouraging or knowingly permitting any manager, employee or agent of the licensed premises to touch, caress or fondle, whether clothed or unclothed, the breasts, buttocks, anus, vulva, penis or genitals of any other manager, employee or agent of any patron." We are advised that this section of the ordinance was intended to prohibit "lap dancing." We conclude its scope is far wider than that and that it is, in fact, unconstitutionally overbroad. In effect, this provision of the ordinance would put employees of Pat's Lounge at risk if an employee was dancing with his or her spouse or with a customer. It seems obvious that it is difficult if not impossible for two people to dance closely together and not to make contact with one of the prohibited body parts described by paragraph B of the ordinance. This ordinance places persons at risk who are dancing closely with their spouse, girlfriend, or boyfriend. Again, we have an ordinance which is an attempt to criminalize behavior protected by the First Amendment, and that ordinance is overbroad under the scope. NUDE DANCING Finally, we come to the question of whether the ordinance can ban totally nude dancing in the City of Pittsburg. In reaching our conclusion, we do not consider the question of whether totally nude dancing is obscene, as that is not an issue in this action. We do, however, conclude that totally nude dancing can be regulated by the City and that the City has done so in a constitutional manner. The ordinance bans totally nude dancing. If the requisite parts of the dancer are covered by the use of such items as pasties and G-strings, the ordinance would not prohibit any activity by a dancer so "clothed." The use of pasties and G-strings would protect against total nudity. We have no hesitation in holding that this ordinance is well within the police power of the City acting under the Twenty-first Amendment. The question, however, is whether the type of dancing prohibited is entitled to the superior protection of the First Amendment. We hold that in this case it is not. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), the United States Supreme Court reversed the 7th Circuit's decision which held that nude dancing was expressive conduct protected by the First Amendment. The Supreme Court said:
The Court went on to say:
In light of the quote above from the Supreme Court in Barnes, we think it of some significance that in this case the public comments before the city council overcome the morality of nudity. We echo Barnes when we conclude that the purported evil sought to be prohibited by the ordinance was public nudity and not the expression of anything entitled to First Amendment protection. Although there was no evidence of this fact, apparently the City concluded that totally nude dancers and alcoholic beverage drinking customers are not a particularly good mix. The Barnes Court, speaking through the Chief Justice, said:
We agree with the comments of the Chief Justice set out above. The Court also said that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so." 501 U.S. at 566. In line with Barnes, we uphold the constitutionality of the city ordinance's ban on totally nude dancing. We have applied the four-part test set out in United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), and, in so doing, we hold that the ordinance involved in this action is valid in its ban on totally nude dancing despite certain incidental limitations on some expressive activity. We strike those provisions of the ordinance ruled to be unconstitutional in this opinion. The balance of the ordinance is held to be constitutional. Affirmed in part and reversed in part. |