Pancakes, Biscuits and More, LLC. v. The Pendleton County Commission
Filing
23
ORDER Denying 16 Plaintiff's Motion for Summary Judgment: Plaintiffs Motion for Summary Judgment [Doc. 16] should be, and is hereby, DENIED. Summary judgment is GRANTED in favor of Defendant. Plaintiffs Complaint [Doc. 1] is hereby DISMISSED, this matter is ORDERED STRICKEN from the active docket of this Court, and the Clerk is directed to enter judgment in favor of Defendant. Signed by Chief Judge John Preston Bailey on 1/24/2014. (cmd)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
PANCAKES, BISCUITS AND MORE, LLC,
d/b/a GOLDEN ANGELS CABARET,
Plaintiff,
v.
Civil Action No. 2:13-CV-57
(Bailey)
THE PENDLETON COUNTY COMMISSION,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Presently pending before this Court is Plaintiff Pancakes, Biscuits and More, LLC,
d/b/a Golden Angels Cabaret’s Motion for Summary Judgment [Doc. 16], filed on
December 13, 2013. Defendant, the Pendleton County Commission, filed its Response in
Opposition [Doc. 18] on January 3, 2014; Plaintiff filed its Reply [Doc. 21] on January 13,
2014. This matter is now ripe for decision. For the reasons set forth below, Plaintiff’s
Motion for Summary Judgment [Doc. 16] will be DENIED, and this Court will GRANT
summary judgment in favor of defendant.
I.
Facts
Golden Angels Cabaret is a strip club, operated by plaintiff Pancakes, Biscuits and
More, located in Pendleton County, West Virginia. The West Virginia Code grants county
commissions the authority to regulate strip clubs and other businesses offering “exotic
entertainment,” defined as any “live entertainment, dancing, or other services conducted
1
by persons while nude or seminude in a commercial setting for profit.” W. Va. Code § 7-13jj(a)(1).
Pursuant to the authority granted it under § 7-1-3-jj, on April 19, 2005, defendant
adopted an Ordinance Regulating the Location of Businesses Offering Exotic Entertainment
[Doc. 16-1] during a public hearing. The minutes of the public hearing regarding the
Ordinance state in full:
An Ordinance regulating the location of a business offering exotic
entertainment and related activities to promote the health, safety, morals, and
general welfare of the citizens of Pendleton County was brought up for
second reading this day, and adopted by unanimous vote of the Commission.
[Doc. 18-3 at 2]. Defendant contends that “comments expressing concern about the
secondary effects of exotic entertainment establishments in the county” were made at the
meeting, although there is no record of same in the meeting minutes. [Doc. 18-4 at 2].
Defendant neither conducted nor reviewed any studies regarding the secondary effects of
exotic entertainment businesses before adopting the Ordinance. Id. However, defendant
submits that its members had personal knowledge of such secondary effects, as in
November 1999, Pendleton County’s then-lone strip club, the Cadillac Ranch, closed
following its owner’s indictment on multiple criminal charges.1 Id.; [Doc. 18-5].
Under the Ordinance, an exotic entertainment business may not be located within
2,500 feet of a church, school, park, daycare center, or residence, and may not be located
within 2,000 feet of either a private club or bar serving alcohol or another sexually oriented
1
Lawrence Scible, owner of the Cadillac Ranch, was ultimately convicted of eight felony
drug counts, one misdemeanor count of “Maintaining a House of Ill Fame and Assignation
for the Purpose of Prostitution, Lewdness, or Assignation,” and two misdemeanor counts
of false statements on a deed. See [Doc. 18-6].
2
business. [Doc. 16-1 at 8]. In addition to restricting the location of exotic entertainment
businesses, the Ordinance also requires such businesses to obtain location permits; pay
certain permit application and permit renewal fees; refrain from selling alcohol or permitting
alcohol to be consumed on the premises; design their exteriors in accord with certain
restrictions; maintain parking facilities according to certain specifications; and hire
attendants to ensure no persons under the age of eighteen (18) gain entry. See generally
[Doc. 16-1].
According to plaintiff, Golden Angels Cabaret opened for a short time in late June
but subsequently closed once again for renovations. [Doc. 17 at 4]. At some point during
July 2013, defendant became aware that the club was preparing to re-open for business.
Concerned that the club was not compliant with the Ordinance, defendant hand-delivered
a copy of same to plaintiff on July 25, 2013. [Doc. 18 at 3–4]. Defendant alleges, and
plaintiff does not deny, that Golden Angels Cabaret is in violation of several provisions of
the Ordinance, to wit: plaintiff failed to obtain a location permit and to pay required
permitting fees; the club is located within 2,500 feet of a residence; the club purports to
allow consumption of alcohol on the premises; and the club’s large exterior signage violates
the Ordinance’s signage restrictions. [Doc. 18-7 at 2]. Nevertheless, plaintiff proceeded
with plans to open Golden Angels Cabaret for business on August 1, 2013. Id.
II.
Procedural History
Consequently, on August 1, 2013, defendant filed a Verified Motion and Complaint
for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction [Doc.
5-2] against plaintiff in the Circuit Court of Pendleton County, West Virginia, alleging
violations of the Ordinance and requesting injunctive relief. The Circuit Court issued a
3
temporary restraining order against plaintiff that same day. [Doc. 18 at 4]. On August 5,
2013, the Circuit Court held a hearing on the matter, during which plaintiff informed the
court that it intended to challenge the validity of the Ordinance. [Doc. 18-7 at 1]. Following
the hearing, the Circuit Court entered its August 6, 20132 Order [Doc. 18-7] preliminarily
enjoining plaintiff “from conducting nude dancing; seminude dancing; bikini clad dancing
or similar activities . . . until the matter is fully adjudicated during the permanent injunction
hearing.” [Doc. 18-7 at 2]. The Circuit Court continued the matter pending scheduling of
a permanent injunction hearing. Id.
Rather than scheduling a permanent injunction hearing in the pending state
proceeding, on August 13, 2013, plaintiff initiated the instant lawsuit by filing its Complaint
[Doc. 1] in this Court,3 contending that the Ordinance is an unconstitutional restriction on
plaintiff’s freedom of speech. Count I of plaintiff’s Complaint seeks a declaratory judgment
that the Ordinance is invalid under both the First Amendment of the United States
Constitution and Article III, Section Seven of the West Virginia Constitution. Count II seeks
a permanent injunction preventing defendant from enforcing the Ordinance.
III.
Legal Standard
A.
Summary Judgment
Summary judgment is appropriate when there is no genuine issue of material fact
2
The parties refer to this Order as the August 5, 2013 Order. While the preliminary
injunction hearing was held before the Circuit Court on August 5, 2013, the Order itself was
not entered until August 6, 2013. See [Doc. 18-7 at 1, 3].
3
On October 10, 2013, the Circuit Court of Pendleton County entered an Order staying all
state proceedings until resolution of the instant proceeding. [Doc. 18-8 at 1–2]. As such,
this Court need not consider whether abstention under Younger v. Harris, 401 U.S. 37
(1971), and its progeny would be appropriate at this juncture.
4
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Thus, a summary judgment
motion should be granted if the nonmovant fails to make a showing sufficient to establish
the existence of an essential element of his claim or defense upon which he bears the
burden of proof. Celotex, 477 U.S. at 323. That is, once the movant shows an absence
of evidence on one such element, the nonmovant must then come forward with evidence
demonstrating there is indeed a genuine issue for trial. Id. at 323–24. The existence of a
mere scintilla of evidence supporting the nonmovant’s position is insufficient to create a
genuine issue; rather, there must be evidence on which a jury could reasonably find for the
nonmovant. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).
A court hearing a summary judgment motion has the power to grant summary
judgment sua sponte in favor of the nonmovant when no genuine issue of material fact
exists and the nonmovant is entitled to judgment as a matter of law. See, e.g., Ortega
Candelaria v. Orthobiologics LLC, 661 F.3d 675, 681 n.10 (1st Cir. 2011); Travelers
Cas. & Sur. Co. v. Gerling Global Reinsurance Corp., 419 F.3d 181, 190 (2d Cir. 2005);
Jones v. Union Pacific R.R. Co., 302 F.3d 735, 740 (7th Cir. 2002); Burlington N. R.R.
Co. v. Omaha Public Power Dist., 888 F.2d 1228, 1231 n.3 (8th Cir. 1989); Eddy v.
Biddle, 2013 WL 66929, *19 (N.D. W. Va. Jan. 4, 2013); Helton v. Good, 208 F. Supp. 2d
597, 608 (W.D. N.C. 2002), aff’d in part, rev’d in part on other grounds, 330 F.3d 242 (4th
Cir. 2003). In determining whether entry of sua sponte summary judgment in favor of a
nonmovant is appropriate, the key inquiry is whether the losing party was on notice that he
or she had to marshal the evidence necessary to withstand summary judgment. Travelers,
5
419 F.3d at 190. Summary judgment in favor of the non-movant can be particularly apt
where discovery has concluded and the factual record has been fully developed. Id.; Eddy,
2013 WL 66929 at *19.
B.
First Amendment to the United States Constitution
The First Amendment protects not only verbal speech, but also freedom of
expression through communicative conduct. United States v. O’Brien, 391 U.S. 367, 376
(1968). Expressive conduct, however, is not always fully protected: where the conduct
contains both “speech” and “nonspeech” elements, a sufficiently important governmental
interest in regulating the nonspeech element can justify incidental limitations on the
protected speech. Id. The level of constitutional scrutiny applicable to a regulation of
expressive conduct therefore turns on the government’s purpose in enacting the regulation.
Where the government’s purpose is “content-neutral,” or unrelated to the content of
the conduct, “intermediate scrutiny” applies: the regulation must serve a substantial
government interest and may restrict expression no more than is essential to the
furtherance of that interest. Id. at 377. Where the government’s purpose is “contentbased,” or intended to suppress the conduct itself, the regulation must survive “strict
scrutiny”: the regulation is presumptively invalid, and violates the First Amendment absent
a compelling state interest in its enforcement. City of Erie v. Pap’s A.M., 529 U.S. 277,
289 (2000) (plurality) (citing Texas v. Johnson, 491 U.S. 397, 403 (1989)).
Some arguably “content-based” regulations of expressive conduct, however, can
escape strict scrutiny where the purpose of the regulation is not to ban the conduct entirely,
but merely to restrict the time, place, and manner of its presentation. City of Renton v.
6
Playtime Theatres, Inc., 475 U.S. 41, 46–47 (1986). Although such regulations are
“content-based” in that they define the regulated conduct by its content, they are “contentneutral” in that they “are justified without reference to the content of the regulated speech,”
and thus are constitutionally acceptable so long as they serve a substantial government
interest and do not unreasonably limit alternative avenues of communication. Id. at 47, 48
(internal citations omitted).
The Renton test is in essence “intermediate scrutiny” restated; the key difference
between the O’Brien (content-neutral) and Renton (time, place, and manner) doctrines is
the type of evidentiary showing required. See, e.g., Richland Bookmart, Inc. v. Knox
Cnty., 555 F.3d 512, 521–22 (6th Cir. 2009) (citing Peek-A-Boo Lounge of Bradenton,
Inc. v. Manatee Cnty., 337 F.3d 1251, 1264 (11th Cir. 2003)). While justification of a wholly
content-neutral regulation “require[s] no evidentiary showing at all that the threatened harm
was real,” Pap’s A.M., 529 U.S. at 299, justification of a time, place, and manner regulation
requires the government to show “a reasonable evidentiary basis for concluding that its
regulation would have the desired effect.” 729, Inc. v. Kenton Cnty. Fiscal Court, 515
F.3d 485, 491 (6th Cir. 2008) (citing Renton, 475 U.S. at 51–52; Alameda Books, 535
U.S. at 438, 439 (plurality); id. at 449 (Kennedy, J., concurring in the judgment)).
C.
Article III, Section Seven of the West Virginia Constitution
Article III, Section Seven of the West Virginia Constitution states:
No law abridging the freedom of speech, or of the press, shall be passed; but
the legislature may by suitable penalties, restrain the publication or sale of
obscene books, papers, or pictures, and provide for the punishment of libel,
and defamation of character, and for the recovery, in civil actions, by the
aggrieved party, of suitable damages for such libel, or defamation.
7
W. Va. Const. art. III, § 7. Article III, Section Seven provides protections similar to those
provided by the First Amendment to the United States Constitution. See Wheeling Park
Comm’n v. Hotel & Restaurant Employees, Int’l Union, AFL-CIO, 198 W. Va. 215,
220–21 & n.6 (1996).
In considering the validity of time, place, and manner regulations under the West
Virginia Constitution, the Supreme Court of Appeals of West Virginia has stated:
[I]f the government’s restriction is found in a content-neutral statute,
ordinance, or regulation, then the statute’s, ordinance’s, or regulation’s
constitutionality would be assessed by determining whether the time, place,
and manner restrictions were “narrowly tailored to serve a significant
government interest, and [left] open ample alternative channels of
communication.”
Wheeling Park Comm’n, 198 W. Va. at 226 (quoting Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37 (1983)). Thus, the test applicable to analysis of a time,
place, and manner regulation is the same under both the federal and state constitutional
analyses.
IV.
Discussion
As the Supreme Court has repeatedly held, exotic entertainment is a type of
expressive conduct entitled to limited constitutional protection. Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 565–66 (1991). Because the Ordinance at issue regulates exotic
entertainment, it therefore regulates expressive (albeit low-value4) conduct entitled to at
least some constitutional protection.
4
See Renton, 475 U.S. at 49 n.2 (“It is manifest that society’s interest in protecting this
type of expression is of a wholly different, and lesser, magnitude than the interest in
untrammeled political debate . . .” (quoting Young v. American Mini Theatres, 427 U.S.
50 (1976))).
8
A.
Nature of the Ordinance
Thus, this Court must first determine whether the Ordinance is (1) a content-neutral
regulation that incidentally burdens expression; (2) a content-based regulation intended to
suppress expression; or (3) a time, place, and manner regulation that defines the regulated
activity by its content, but targets the secondary effects of the activity rather than the
activity itself.
Plaintiff argues that the Ordinance is a content-based regulation that should be
subject to strict scrutiny. Plaintiff is incorrect. The preamble to the Ordinance states:
WHEREAS, there is convincing evidence that adult entertainment
businesses . . . have a deleterious effect on . . . the
surrounding . . . areas . . . , causing increased crime and the
depreciation of property value; and
WHEREAS, it is recognized that adult entertainment businesses . . .
contribut[e] to blight and downgrad[e] the quality of life in the
adjacent areas; and
WHEREAS, the Pendleton County Commission desires to minimize and
control these adverse effects and thereby protect the health,
safety, and welfare of the citizenry . . . ; and
WHEREAS, it is not the intent of this Ordinance to suppress any speech
related activities protected by the First Amendment but to enact
a content neutral Ordinance which addresses the secondary
effects of adult entertainment businesses . . . [. . .]
[Doc. 16-1 at 1]. The stated purpose of the Ordinance is to “address[ ] the secondary
effects of adult entertainment businesses.” Rather than banning all exotic entertainment
within Pendleton County, the Ordinance regulates exotic entertainment businesses in four
general ways: it requires that such businesses be licensed both to initially open for
business and on an annual basis thereafter; it restricts the places in which such businesses
may be located; it sets forth certain exterior design requirements; and it prohibits certain
activities, such as selling alcohol on the premises and admitting persons under the age of
9
18.
In this Court’s opinion, the Ordinance is properly analyzed as a time, place, and
manner regulation. While the Ordinance clearly treats exotic entertainment businesses
differently from other types of businesses, the Ordinance does not aim to suppress exotic
entertainment, but rather to control the secondary effects of exotic entertainment
businesses on the community.
To pass constitutional muster, the Ordinance must therefore satisfy O’Brien/Renton
intermediate
scrutiny:
the
Ordinance
must
serve
a
substantial
government
interest; defendant must demonstrate that it had a reasonable evidentiary basis for
concluding that the Ordinance would have the desired effect; and the Ordinance must allow
for reasonable alternate avenues of communication. See Renton, 475 U.S. at 46–47, 50.
As set forth below, this Court holds that the Ordinance meets the O’Brien/Renton
standard.
B.
Substantial Government Interest
The first question is whether the Ordinance serves a substantial government
interest; plaintiff rightly concedes this point, as it is well settled that the state has a
substantial interest in controlling the adverse secondary effects of sexually oriented
businesses. See, e.g., Alameda Books, 535 U.S. at 434; Renton, 475 U.S. at 54; Pap’s
A.M., 529 U.S. at 296; Richland Bookmart, 555 F.3d at 524.
C.
Sufficiency of the Evidence
Next, this Court must determine whether defendant marshaled constitutionally
sufficient evidence regarding the secondary effects of exotic entertainment when enacting
the Ordinance. As explained above, defendant must have relied on evidence it “reasonably
10
believed to be relevant” to demonstrate a connection between exotic entertainment and the
problem of secondary effects. Alameda Books, 535 U.S. at 441–42; Renton, 475 U.S.
at 51–52; Peek-A-Boo, 337 F.3d at 1266. However,
this is not to say that a municipality can get away with shoddy data or
reasoning. The municipality’s evidence must fairly support the municipality’s
rationale for its ordinance. If plaintiffs fail to cast direct doubt on this
rationale, either by demonstrating that the municipality’s evidence does not
support its rationale or by furnishing evidence that disputes the municipality’s
factual findings, the municipality meets the standard set forth in Renton. If
plaintiffs succeed in casting doubt on a municipality’s rationale in either
manner, the burden shifts back to the municipality to supplement the record
with evidence renewing support for a theory that justifies its ordinance.
Alameda Books, 535 U.S. at 438–39.
Plaintiff’s argument appears to be that defendant’s evidence did not fairly support
defendant’s rationale for the Ordinance; unfortunately, plaintiff’s rather spare briefing
makes contradictory factual allegations on this point. On the one hand, plaintiff contends
that “the County Commission in its admissions did not consider any experiences or studies
to determine if the ordinance would accomplish the Commissions [sic] goals”; on the other
hand, plaintiff states that the Ordinance “makes certain findings and conclusions that are
supported by information presented at the Commission’s meeting,” but fails to elaborate
regarding said findings, conclusions, or information presented. [Doc. 17 at 6, 7]. As for
defendant, it concedes that no studies regarding secondary effects were conducted or
consulted in adopting the Ordinance, but contends that it relied upon “prior knowledge of
the effects of the Cadillac Ranch Strip Club on the community” in so doing. [Doc. 18 at 8].
Discovery in this matter closed on December 1, 2013. See [Doc. 9]. The record
contains, in total, the following information regarding evidence considered prior to adoption
of the Ordinance: (1) the April 19, 2005 Pendleton County Commission meeting minutes,
11
which state only that the Ordinance was brought up for second reading and adopted by
unanimous vote5; (2) Defendant’s Responses to Requests for Admission, which primarily
reiterate defendant’s knowledge of the Cadillac Ranch, but do further state that “comments
expressing concern about the secondary effects of exotic entertainment establishments”
were heard at the April 19, 2005 meeting; and (3) the text of the Ordinance itself. [Docs.
18-1, 18-3, 18-4].
This evidentiary record is extremely thin. See, e.g., Alameda Books, 535 U.S. at
430 (city relied on 1977 study of adult businesses); Pap’s A.M., 529 U.S. at 297 (city
expressly referenced explanatory judicial decision in the text of its ordinance); D.H.L.
Assoc., Inc. v. O’Gorman, 199 F.3d 50, 57–58 (1st Cir. 1999) (although evidence of
evaluation of secondary effects “did not appear explicitly in town meeting minutes,”
testimony of chairman of the Board of Selectmen regarding research conducted by the city,
combined with a document evidencing public discussion prior to the ordinance’s enactment,
sufficed); Hickerson v. City of New York, 146 F.3d 99, 104–05 (2d Cir. 1998) (city relied
upon “extensive” record including “numerous” studies); SDJ, Inc. v. City of Houston, 837
F.2d 1268, 1274 (5th Cir. 1988) (city formed a Committee on Sexually Oriented Businesses
to hear testimony and consider studies from other cities); Ben’s Bar, Inc. v. Village of
Somerset, 316 F.3d 702, 725 (7th Cir. 2003) (city relied on judicial decisions, studies from
11 cities, findings reported in other legislation, and Attorney General white paper; see also
Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1283 (11th Cir. 2001) (“[C]ourts still have
insisted on some kind of a minimal evidentiary showing, even if that showing consists of
5
See section I, supra.
12
nothing more than proof that the legislature reasonably relied on findings reported
elsewhere.”); DiMa Corp v. Town of Hallie, 185 F.3d 823, 829–31 (7th Cir. 1999) (stating
that “conclusory assertions” in the text of an ordinance are insufficient on their own because
“they are not ‘evidence’ as the Court required in Renton.”). But see Peek-A-Boo, 337 F.3d
at 1268 (“a municipality’s own findings” may be sufficient); Sammy’s of Mobile, Ltd. v.
City of Mobile, 928 F. Supp. 1116, 1122 (S.D. Ala. 1996), affirmed 140 F.3d 993 (11th Cir.
1998) (“If legislative findings are at all necessary . . . the requirement is minimal and easily
met by the city’s findings set forth in the preamble to the ordinance.”).
Here, defendant examined no studies; relied upon no judicial decisions in the text
of the Ordinance; formed no committees; and conducted no investigations. No documents
evidencing public discussion were admitted into the record. The preamble to the Ordinance
never explicitly makes “findings,” although it does state that “there is convincing evidence
that adult entertainment businesses, because of their very nature, have a deleterious
effect” and asserts that “the Pendleton County Commission desires to minimize and control
these adverse effects.” [Doc. 16-1 at 1]. Defendant, in sum, is asking this Court to hold
that the Pendleton County commissioners’ memory of a single strip club owner’s 1999
criminal indictment, plus the conclusory statements contained in the text of the preamble
to the Ordinance, comprise constitutionally sufficient evidence to support its adoption.
The Fourth Circuit has twice flirted with the question how little evidence is too little
evidence to support adoption of an ordinance regulating sexually oriented businesses,
although the issue has yet to be squarely presented. In Giovani Carandola, Ltd. v.
Bason, 303 F.3d 507 (4th Cir. 2002), the Fourth Circuit heard a First Amendment
overbreadth challenge to a state statute and its concomitant regulations prohibiting certain
13
types of sexually suggestive entertainment. Id. at 509. In holding the state restrictions
overbroad, the court subjected the state restrictions to intermediate scrutiny. Id. at 515.
The state argued that its restrictions furthered the state’s interest in controlling the negative
secondary effects of adult entertainment; the record, however, was totally devoid of
evidence demonstrating same. In considering whether the government had nevertheless
met its evidentiary burden, the Fourth Circuit stated:
The Commission has produced no evidence—either current or otherwise—of
harmful secondary effects . . . . This failure might not pose a problem if the
challenged restrictions applied only to bars and clubs that present nude or
topless dancing. Such entertainment has “a long history of spawning
deleterious effects,” . . . and in most cases a city or state need carry only a
minimal burden to demonstrate its interest in regulation of such activity. In
particular, where “nude dancing . . . is of the same character as the adult
entertainment at issue in Renton, Young v. American Mini Theatres, Inc.,
and California v. LaRue,” a governmental entity may rely on the “evidentiary
foundation” set forth in those cases to “conclude that such nude dancing [i]s
likely to produce the same secondary effects” in its jurisdiction unless the
plaintiff produces clear and convincing evidence to the contrary.
Id. at 515–16; see also Legend Night Club v. Miller, 637 F.3d 291, 299 (4th Cir. 2011)
(quoting the above-excerpted language from Carandola, again in the context of an
overbreadth case). Here, the challenged restriction is applicable only to bars and clubs that
present nude or seminude entertainment, as contemplated by the Fourth Circuit’s
discussion. See [Doc. 16-1 at 2]. This Court therefore feels constrained to hold, in light of
Carandola and Legend Night Club, that defendant has met its evidentiary burden.
C.
Reasonable Alternate Avenues of Communication
Finally, turning to the question whether the Ordinance allows for reasonable
alternative avenues of communication, this Court notes that defendant states, and plaintiff
does not deny, that there are “numerous parcels of real estate for sale and lease”
14
throughout Pendleton County upon which Golden Angels Cabaret could be alternatively be
located. See [Doc. 18 at 6].
Further, the Ordinance is narrowly tailored to apply only to those exotic
entertainment businesses which produce the adverse secondary effects defendant sought
to control. See [Doc. 16-1 at 10] (enumerating exemptions). To the extent plaintiff
articulates a First Amendment argument regarding the content of the regulations, it is
rejected.6 See, e.g., Renton, 475 U.S. at 51 (“Cities may regulate adult theaters by
dispersing them, . . . or by effectively concentrating them . . . . It is not our function to
appraise the wisdom of the city’s decision.”) (internal quotations omitted); Richland
Bookmart, 555 F.3d at 532 (holding that prohibition of alcohol consumption in adult
entertainment venues is a reasonable restriction); Deja Vu of Nashville, Inc. v. Metro.
Gov’t, 274 F.3d 377, 395 (6th Cir. 2001) (upholding a $500 license fee and a $100 permit
fee where the fees were reasonably related to the expenses incident to the administration
of the ordinance). Thus, the Ordinance does not deny plaintiff the reasonable opportunity
to open and operate Golden Angels Cabaret within Pendleton County. Nothing more is
required.7 See Renton, 475 U.S. at 54.
6
Plaintiff’s argument regarding the content of the Ordinance consists, virtually in entirety,
of a laundry list of its provisions. See [Doc. 21 at 2].
7
Plaintiff further suggests that defendant exceeded its regulatory authority in adopting the
Ordinance. West Virginia Code § 7-1-3jj gives a county commission the power to “adopt
an ordinance that limits the areas of the county in which a business may offer ‘exotic
entertainment.’” W. Va. Code § 7-1-3jj(b) (emphasis added). The text of § 7-1-3jj is silent
regarding a commission’s power to restrict exotic entertainment in other ways, such as by
prohibiting the sale or consumption of alcohol and regulating signage and parking.
Defendant states that “other aspects regarding exotic entertainment venues may be
regulated according to law,” but fails to cite any West Virginia law allowing regulation of
these “other aspects.” [Doc. 18-4 at 1]. This Court therefore questions whether defendant
15
Consequently, this Court holds that the Ordinance offends neither the First
Amendment to the United States Constitution nor Article III, Section Seven of the West
Virginia Constitution. As such, this Court declines to provide plaintiff with the declaratory
and injunctive relief sought.
Defendant has made no formal motion for summary judgment in its favor, although
defendant does state in its Response that “summary judgment should be granted on behalf
of the Defendant.” [Doc. 18 at 10]. In the opinion of this Court, no disputed issues of
material fact remain, and judgment for defendant would be appropriate under the
circumstances. Plaintiff raised the constitutional issues in this matter and fully briefed its
position on same; plaintiff has therefore had a full and fair opportunity to present all of its
evidence to this Court. See Travelers, 419 F.3d at 190–91; Eddy, 2013 WL 66929 at *19.
CONCLUSION
Accordingly, Plaintiff’s Motion for Summary Judgment [Doc. 16] should be, and is
hereby, DENIED. Summary judgment is GRANTED in favor of Defendant. Plaintiff’s
Complaint [Doc. 1] is hereby DISMISSED, this matter is ORDERED STRICKEN from the
active docket of this Court, and the Clerk is directed to enter judgment in favor of
Defendant.
It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to counsel of record herein.
had the authority to pass the Ordinance under West Virginia law. As that question
implicates neither the First Amendment nor Article III, Section Seven of the West Virginia
Constitution, however, this Court feels it would be more appropriately resolved by the
Circuit Court of Pendleton County.
16
DATED: January 24, 2014.
17
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