Peterson et al v. Florence, Minnesota, The City of

Filing 71

MEMORANDUM OPINION AND ORDER Defendant's Motion for Contempt Order (Doc. [No. 59]) is GRANTED. (Please see Order for additional information.) Signed by Judge Donovan W. Frank on 9/13/2012. (Written Opinion)(BJS) Modified to Written Opinion 9/13/2012 (MGV).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Dale Owen Peterson, and
The Juice Bar, LLC, a Minnesota
limited liability company,

Civil No. 11-2233 (DWF/JJK)

Plaintiffs,
v.

MEMORANDUM
OPINION AND ORDER

The City of Florence, Minnesota,
a Municipal corporation,
Defendant.
________________________________________________________________________
Bryan R. Battina, Esq., Battina Law, PLLC; and James F. Lester, Esq., James F. Lester,
Attorney at Law, counsel for Plaintiffs.
James J. Thomson, Esq., and Mary D. Tietjen, Esq., Kennedy & Graven, Chartered,
counsel for Defendant.
________________________________________________________________________

INTRODUCTION
This matter is before the Court on a motion for contempt brought by Defendant
City of Florence, Minnesota (“Florence” or the “City”) (Doc. No. 59). For the reasons
stated on the record at the hearing on this matter and based upon the submissions and
arguments of both parties, the record in this case, and the Court being otherwise duly
advised in the premises, the Court hereby enters the following:

ORDER
1.

Defendant’s Motion for Contempt Order (Doc. [No. 59]) is GRANTED.

2.

Dale Peterson and the Juice Bar, LLC, are in constructive civil contempt of

the Court’s August 1, 2012 Order.
3.

Plaintiffs are ordered to immediately close the commercial operations at

310 Blaine Street in Florence, Minnesota.
4.

Plaintiffs shall pay Defendant $2,000 for the commercial, sexually-oriented

business operations at 310 Blaine Street in Florence, Minnesota, on August 17, 2012 in
violation of the Court’s August 1, 2012 Order within thirty (30) days of the date of this
Order.
5.

If Defendants submit affidavits to the Court demonstrating that Plaintiffs

have violated this Court’s August 1, 2012 Order on subsequent occasions, Plaintiffs shall
pay $2,000 for each additional violation.
6.

Finding that Plaintiffs’ non-compliance with the Court’s August 1, 2012

Order required the Defendants to file the current motions before the Court, the Court
further orders Plaintiffs to pay Defendant for all costs and attorney fees incurred in
enforcing and assuring compliance with this Court’s August 1, 2012 Order, including the
attorney fees and costs relating to the current motions before the Court.

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7.

Defendant is respectfully directed to submit an affidavit to the Court by

September 24, 2012, setting forth the attorney fees and costs sought pursuant to this
provision. Plaintiffs may then submit a response to Defendant’s affidavit to be filed with
the Court by October 1, 2012.
Dated: September 13, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
MEMORANDUM

The facts of this case and applicable scope of review are fully set forth in the
Court’s August 1, 2012 Order. (Doc. No. 56.) The Court only briefly restates and
updates the background facts and applicable law here. By an August 1, 2012,
Memorandum Opinion and Order in this matter, the Court found the zoning and licensing
ordinances challenged by Plaintiffs to be constitutional. Specifically, the Order stated
that, “Plaintiffs are enjoined from operating any business or commercial use within the
City of Florence.” (Doc. No. 56 at 15 ¶ 3.) As a result, the Court enjoined Plaintiffs
from operating a sexually-oriented business at 310 Blaine Street in Florence, Minnesota,
in violation of Florence city ordinances.
Generally, after a court issues an injunction, “it automatically retains jurisdiction
to enforce it.” Picon v. Morris, 933 F.2d 660, 662-63 (8th Cir. 1991) (quoting United
States v. Fisher, 864 F.2d 434, 436 (7th Cir. 1988)). Courts have inherent powers to
enforce their judgments. See Peacock v. Thomas, 516 U.S. 349, 356 (1996). To prevail
on a contempt motion, the party seeking contempt bears the burden of proving the facts
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by clear and convincing evidence. Jake’s Ltd., Inc. v. City of Coates, 356 F.3d 896,
899-900 (8th Cir. 2004).
Since August 17, 2012, Plaintiffs have continued to operate a commercial adult
entertainment business (now called Dale’s Party House) at 310 Blaine Street in Florence,
Minnesota, prompting Defendant’s current motion for an order of contempt. In
opposition, Plaintiffs argue that they are in compliance with the Court’s Order and they
are not in violation of Florence city ordinances because Peterson resides at the property
and its principal use is not commercial. Plaintiffs further assert that rather than operating
a sexually-oriented business, they are operating a private club for which they charge a
“lodging fee” to enter and that the terms “commercial use” and “principal use” render the
ordinances vague and ambiguous. The Court is not persuaded.
The “lodging fee” is an admission fee. The “lodging fee” is the functional
equivalent of the admission charge Plaintiffs seek to avoid, and the Court will not allow
Plaintiffs to dodge the force of the Court’s Order by engaging in games of labeling and
semantics. Plaintiffs have continued to operate their business as they always have.
Dale’s Party House offers live nude dancing for which it receives payment from its
patrons, at a minimum, as they enter the establishment. Plaintiffs’ attempt to alter the
guise under which they collect these charges does not alter the fact of their collection.
On August 17, 2012, Lyon County Sheriff’s Deputies readily observed twenty-five cars
outside the property, live nude dancing including a dancing pole, exercise bike, and
private “VIP” area. (Doc. No. 61, Exs. E, F, G.) Plaintiffs have placed numerous
newspaper advertisements and do not deny the existence of an exercise pole and exercise
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equipment. (Doc. No. 61, Exs. A, B, Doc. No. 70, Peterson Aff. ¶¶ 6-7.) The Court
finds, based upon the facts and circumstances presented in the record, that the occurrence
of such specified sexual activities demonstrates that Plaintiffs operated as a
sexually-oriented business in violation of Florence City Ordinance Nos. 2011-09, 201102, and 2008-02 when they re-opened on August 17, 2012. (Doc. No. 61, Exs. A, B, C,
E, F, G.)
The Court finds, based upon the facts and circumstances presented in the record,
that the activities going on at 310 Blaine Street are commercial activities as defined by
Florence City Ordinance Nos. 2011-09, 2011-02, and 2008-02. Plaintiffs have failed to
abide by this Court’s August 1, 2012 Order on August 17, 2012, the date that Plaintiffs
re-opened their business. Accordingly, the Court finds that by continuing to operate
Dale’s Party House at 310 Blaine Street in Florence, Minnesota, Plaintiffs are in
constructive contempt of this Court’s August 1, 2012 Order. Plaintiffs’ opposition to
Defendant’s current motion, while perhaps creative, was not brought in good faith, but,
rather, as a last minute attempt to postpone the effect of valid ordinances and the orders
of this Court. The Court finds and concludes that there is clear and convincing evidence,
based upon the record before the Court, that Plaintiffs Dale Peterson and the Juice Bar,
LLC, willfully and intentionally violated the Court’s Order of August 1, 2012.
D.W.F.

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