RAVEN DEVELOPMENT COMPANY, L.L.C., ) Plaintiff, ) ) vs. ) Case No. 01C 1306 ) BOARD OF COUNTY COMMISSIONERS OF ) SHAWNEE COUNTY, ) VIC MILLER, COUNTY COMMISSIONER, ) TED ENSLEY, COUNTY COMMISSIONER, ) MARICE KANE, COUNTY COMMISSIONER, ) ROBERT HECHT, ) RICHARD BARTA, SHAWNEE COUNTY SHERIFF, ) Defendants. ) ________________________________________)
Raven Development Company, LLC filed a petition requesting a restraining order and a temporary injunction, pursuant to K.S.A. 60-905 enjoining the defendants from enforcing Shawnee County Home Rule Resolution No. HR-2001-7. In addition, Raven requested a declaratory judgment on the constitutionality of HR-2001-7. This court did not issue a restraining order and instead set this matter for hearing on the temporary injunction. Defendants, County Commissioners and Sheriff Barta, filed an answer. Defendant District Attorney Robert Hecht filed a motion to dismiss for improper party. The court held a hearing on the temporary injunction and then took the matter under advisement. The court's findings of fact and conclusions of law on the temporary injunction are as follows:
In October, 2000, Midwest Professional Services applied to Shawnee County for a building permit, explicitly requesting to build "a gentlemen's club" offering adult entertainment. Subsequently, Raven, a Limited Liability Corporation, was formed and Shawnee County granted the building permit to Raven on January 9, 2001. This permit allowed the construction of a 65'x125' commercial structure at 4216 N.E. Seward Avenue. Raven then obtained a business loan for $675,000 with the University State Bank in Lawrence, Kansas. Raven entered into contracts for construction and the contractor began getting the steel and foundation in place. Raven purchased a prefabricated structure which the builders assembled in short order. By mid-July, Raven had substantially completed the building and other preparations for business. In addition to these efforts, on July 18, 2001, Raven obtained a liquor license in compliance with state law. Raven also has complied with numerous other licensing requirements of the State of Kansas and Shawnee County.
Raven has incurred over $900,000 in building costs to purchase land and to construct and furnish the building located at 4216 N.E. Seward Avenue.
Shawnee County Home Rule Resolution No. HR-2001-7 was adopted on July 18, 2001 and it became effective on July 20, 2001. This resolution sets forth strict licensing and permit requirements for adult entertainment businesses, and among other restrictions, forbids adult entertainment businesses from: 1) presenting nude entertainment, 2) serving or allowing the consumption of alcohol, 3) being open for business between the hours of 11:00 p.m. and 8:00 a.m., or 4) locating within 3,000 feet from any residence, church, school, or park. HR-2001-7 §§ 2-7, 14(C), 11(A)(6), 12(A); 3(B)(16). Furthermore, Section 15 of HR-2001-7 provides that adult entertainment businesses in operation on the effective date of the ordinance are deemed a "non-conforming use" and are permitted to continue to operate, even in violation of the ordinance. However, such businesses are required to obtain a license.
Counsel for defendants stipulated that the county had not conducted any studies nor hired any third parties to conduct any studies regarding secondary effects of adult entertainment businesses. There was no reference in the record of the Commission meetings or in Home Rule Ordinance (HR-2001-7) to any specific study or court case that the Commission relied upon in enacting the Ordinance.
Defendant concurs with plaintiff that the issues raised in plaintiff's petition for a temporary injunction are ripe for determination by the court and this court agrees as well.
K.S.A. 60-905 provides that no temporary injunction shall be granted until the party to be enjoined has been given reasonable notice and an opportunity to be heard. Defendants were served on October 17, 2001, and a short scheduling conference was held. In the scheduling conference the court set October 25, 2001 as the date for the defendants to respond, and the court held a hearing on October 26, 2001 where all parties had an opportunity to be heard and to present evidence.
The law is well established in Kansas that a plaintiff requesting a temporary injunction must establish all of the following prerequisites in order to obtain a temporary injunction:
1. a substantial likelihood that the movant will eventually prevail on the merits;
2. a showing that the movant will suffer irreparable injury unless the injunction issues;
3. proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party;
4. a showing that the injunction, if issued, will not be adverse to the public interest.
Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P. 2d 287 (1986).
In addition, "the burden of proof in an injunction action is upon the movant." U.S.D. No. 503 v. McKinney, 236 Kan. 224, 227, 689 P.2d 860 (1984). In defining this burden, it generally has been held that the movant must establish a prima facie case showing a reasonable probability that he ultimately will be entitled to the relief sought. The movant has the additional burden of showing a right to the specific injunctive relief sought because irreparable injury will result if the injunction is not granted. Wichita Wire, 11 Kan. App. 2d at 462.
1. Whether There Is a Substantial Likelihood That Plaintiff Will Prevail on the Merits
Plaintiff sets forth numerous arguments alleging that HR-2001-7 violates the First Amendment of the United States Constitution and Section Eleven of the Kansas Bill of Rights.
While this first prerequisite includes the phrase "substantial likelihood of prevailing," the Kansas Supreme Court in Wichita Wire at 463-64 noted that "[i]t is only necessary that plaintiffs establish a reasonable probability of success and not an 'overwhelming' likelihood of success, in order for a preliminary injunction to issue" quoting Atchison, T. & S. F. Ry. Co. v. Lennen, 640 F. 2d 255, 261 (10th Cir. 1981). Therefore, if Raven can demonstrate a reasonable probability of success on any one of its constitutional challenges to the Home Rule Ordinance, it has met the first prerequisite.
The United States Supreme Court has determined the constitutionality of several ordinances designed to prohibit and/or regulate nude dancing establishments, adult theaters, adult entertainment businesses, etc. In Young v. American Mini Theatres, Inc., the Supreme Court stated " ...even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, 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 ..." Young v. American Mini Theatres, Inc., 427 U. S. 50, 70, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976). The United States Supreme Court recently reaffirmed that "nude dancing ... is expressive conduct," even though "it falls only within the outer ambit of the First Amendment's protection." City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000).
Both parties agree that the constitutionality of this ordinance should be reviewed under the intermediate scrutiny test established in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The United States Supreme Court in O'Brien noted that while First Amendment issues are raised whenever a person engages in conduct to express an idea, not all of the expressive activities are constitutionally protected activities. "The Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms ... [W]e think it clear that a governmental regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental issue is unrelated to the oppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377.
Raven concedes that the defendants have a substantial interest in preventing potential secondary effects of nude entertainment such as prostitution, sexually transmitted diseases, crime, downgraded property values, and urban blight. However, Raven claims that the ordinance is not narrowly tailored to further that interest. Furthermore, Raven alleges that Shawnee County is not able to meet its burden to show that these claimed secondary effects are likely to occur due to the opening of a new adult entertainment business.
This court in reviewing the ordinance must determine whether the "legislative conclusion was reasonable and supported by substantial evidence in the record ..." Turner Broad Sys., Inc. v. FCC (Turner II), 520 U.S. 180, 211, 117 S. Ct. 1174, 137 L. Ed. 2d 369 (1997). In Renton v. Playtime Theatres, Inc., the United States Supreme Court held that in terms of demonstrating that such secondary effects pose a threat "[t]he First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Renton, 475 U.S. at 41, 51-52, 106 S. Ct. 925, 89 L. Ed. 2d 29, (1986).
The Shawnee County Commission in adopting HR-2001-7 found that "... there is convincing documented evidence that adult entertainment businesses, because of their very nature, have a deleterious effect on both the existing businesses around them, and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values." However, in reviewing the ordinance and excerpts of the minutes of the Board of County Commission meetings which were provided by defendants' counsel, this court found no reference to the specific "convincing documented evidence" the County Commission relied upon in making its findings. In addition, the Commission adopted a conflicting finding that "the Board of County Commissioners of the County of Shawnee, Kansas has determined through investigation through the Shawnee County Sheriff's Office that the pre-existing adult entertainment businesses have caused negligible negative secondary effects." The Commissioners did receive testimony from members of the public who were opposed to any new adult entertainment businesses in Shawnee County and in particular to the adult entertainment business proposed to be opened by Raven on N.E. Seward Avenue near the Oakland Expressway. However, no studies nor statistics were provided to the Commission regarding secondary effects of adult entertainment businesses or nude dancing establishments. Commissioner Miller stated that he did not believe that this (referring to an adult entertainment establishment) was the type of development intended when the Oakland Expressway investment was made nor was it the kind of development that was intended when citizens were asked to approve the quarter-cent sales tax for economic development purposes. Unfortunately, the comments of the citizens and Commissioners cannot be construed as "convincing documented evidence" as there was no specific evidence presented. While the public comments are sincere expressions of concern, they only provide undocumented speculation on what effect adult entertainment businesses would have on future development, property values, and crime.
In order for the ordinance to be constitutional, the evidence that the Commission relied upon must be a part of the record so that the court can review whether or not the evidence is substantial and is "reasonably believed to be relevant" to the problem that the Commission seeks to address. Renton, 475 U.S. at 51-52. The United States Supreme Court has held that reliance on a judicial opinion that describes the evidentiary basis is sufficient. Id. See also, City of Erie v. Pap's A.M., TDBA "Kandyland", 529 U.S. 277, 297, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000). However, this court finds no reference in the record that indicates that the Commissioners relied on any judicial opinions nor any specific studies.
Therefore, the court finds that there is a substantial likelihood that Raven will prevail on the merits due to the probability that the HR-2001-7 does not meet the O'Brien test.
Raven contends that the ordinance is overbroad and thus is a violation of the First Amendment to the United States Constitution. "Although facial challenges to legislation are generally disfavored they have been permitted in the First Amendment context ... where the regulation is challenged as overbroad." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990). See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984).
A statute or ordinance is overbroad if it prohibits or criminalizes constitutionally protected conduct. City of Wichita v. Wallace, 246 Kan. 253, 264, 788 P.2d 270 (1990); State v. Hughes, 246 Kan. 607, 616, 792 P.2d 1023 (1990).
The overbreadth doctrine generally has been held to apply only in First Amendment contexts, but it also has been applied where freedoms involve privacy matters. Hughes, 246 Kan. at 616-617.
Although Raven addresses two separate sections in which the claim of overbreadth is made, this court need only address one of the provisions in order to determine whether there are alternate grounds by which Raven can show that there is a substantial likelihood that it will prevail on the merits.
HR-2001-7 § 14 (B) sets out the following prohibition: "[n]o operator, entertainer, or employee shall encourage or permit any person upon the premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person." Raven asserts that the Kansas Court of Appeals held that this type of prohibition was overbroad and unenforceable. DPR, Inc. v. City of Pittsburg, 24 Kan. App. 2d 703, 953 P.2d 231 (1998), rev. denied 264 Kan. 821 (1998).
In DPR, the Court of Appeals found a prohibition against "[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" was unconstitutional. 24 Kan. App. at 720-21. While the Court of Appeals had been advised that this section of the ordinance was intended to prohibit "lap dancing," the Court of Appeals concluded that the scope was far wider and was unconstitutionally overbroad. The Court explained 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." In addition, the Court of Appeals found that the ordinance placed persons at risk who are dancing closely with their spouse, girlfriend or boyfriend.
HR-2001-7 § 14(B) is very similar to Section 4(B) as cited in DPR except the phrase "whether clothed or unclothed" has been omitted. However, the omission of the phrase does nothing to save this section of the ordinance from being constitutionally overbroad. Therefore, the plaintiff has again met its burden that there is a substantial likelihood that it will prevail on the merits.
Plaintiff has made numerous other claims that sections of the ordinance are unconstitutional and other allegations that the ordinance violated the United States Constitution and Kansas law. In this Memorandum Decision, this court has not addressed each of plaintiff's arguments because the court at this stage need only review whether or not the plaintiff has met its burden to show that there is a substantial likelihood that it will prevail on the merits. The court has found that the plaintiff has met its burden based on two separate grounds which is more than sufficient to show that the plaintiff has fulfilled the first prerequisite for a temporary injunction.
2. Whether the Plaintiff Will Suffer Irreparable Injury Unless the Injunction Is Granted
Plaintiff argues that the denial of an injunction will lead to a restraint of Raven's First Amendment Rights and quotes the United States Supreme Court in Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) in which the Court held that "[t]he loss of First Amendment rights, even for minimal periods of time, unquestionably constitutes irreparable injury." The defendants counter that Elrod v. Burns is a case involving issues of political speech which is not at issue in the present case. While defendants are correct regarding the issue in Elrod, the issue here also involves a restriction and loss of First Amendment rights.
Raven also asserts that its business momentum will be irreparably interrupted as it will be unconstitutionally prevented from performing its obligations under various contracts it entered into prior to the passage of HR-2001-7. At the hearing on the temporary injunction Raven presented evidence regarding those financial and contractual obligations. For both of the reasons set out above, the court finds that Raven has met its burden of showing that it will be irreparably harmed if the injunction does not issue.
3. Whether the Threatened Injury to Plaintiff Raven Outweighs Whatever Damage the Proposed Injunction May Cause to the Defendants
Raven argues that the only damage the proposed injunction may cause to the County Commission and the other defendants is the inability to enforce a potentially unconstitutional statute. The 10th Circuit Court of Appeals in ACLU v. Johnson, 194 F. 3d 1149 (10th Cir. 1999) affirmed the district court's granting injunctive relief enjoining the enforcement of a New Mexico statute which criminalized the dissemination by computer of material that is harmful to minors. The 10th Circuit agreed with the district court that "the threatened injury to plaintiffs' constitutionally protected speech outweighs whatever damage the preliminary injunction may cause defendants' inability to enforce what appears to be an unconstitutional statute." ACLU v. Johnson, 194 F. 3d at 1163.
With regard to the first prerequisite for a temporary injunction, this court found that Raven has met its burden to show that there was substantial likelihood that it would prevail (ie. that the ordinance is unconstitutional on the merits on at least two separate grounds). Due to that finding, this court concurs with the rationale in ACLU v. Johnson that plaintiff's threatened injury outweighs whatever damage there may be to the Commission and the other defendants by being restrained from enforcing what appears to be an unconstitutional ordinance. In addition, the defendants presented no evidence in the hearing regarding any damages that would be incurred by the Commission or the other defendants if the temporary injunction were issued.
4. Whether the Injunction Would Be Adverse to the Public Interest
Plaintiff argues that the granting of the temporary injunction will not be adverse to the public interest. As support for its argument Raven points to Shawnee County's own determination based on an investigation through the Shawnee County Sheriff's Office that the pre-existing adult entertainment businesses have caused negligible negative secondary effects.
The defendants presented no evidence in the hearing to rebut that finding of negligible negative effects as to new adult entertainment businesses nor any evidence that the opening of additional adult entertainment businesses would tip the balance and produce negative secondary effects. Additionally, as this court noted earlier in this decision, both the record of the Commission meetings and the ordinance were void of any evidence of secondary negative effects related to adult entertainment businesses.
Therefore, this court finds that Raven has met its burden of showing that the granting of a temporary injunction would not be adverse to the public interest.
Raven, having met all four of the pre-requisites for a temporary injunction, is hereby granted a temporary injunction enjoining the Defendants from enforcing HR-2001-7 or prosecuting plaintiff for any alleged violations of HR-2001-7 until this Declaratory Judgment action regarding the constitutionality of Shawnee County Home Rule Resolution No. HR-2001-7 is determined by the District Court.
The court is setting a scheduling conference by telephone on the Declaratory Judgment petition on the 8th , day of November , 2001 at 11:00 a.m.
The above constitutes the court's order granting Raven a temporary injunction and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of November, 2001.
_______________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen
I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 1st day of November , 2001, to the following:
Joseph D. Johnson
112 SW 8th Avenue
Topeka, Kansas 66603
Mark L. Bennett
5605 SW Barrington Court S.
Topeka, Kansas 66614
Richard V. Eckert
200 SE 7th Street
Suite 100
Topeka, Kansas 66603
Robert D. Hecht
District Attorney
Shawnee County Courthouse
Suite 214
200 E. 7th
Topeka, Kansas 66603
_______________
Norma J. Dunnaway
Administrative Assistant