Raven Development Company, LLC filed a petition requesting a Restraining Order and Injunction pursuant to K.S.A. 60-905 and a Declaratory Judgment pursuant to K.S.A. 60-1701 et seq. regarding Shawnee County Home Rule Resolution, HR-2001-7. This court did not issue a restraining order but did grant a temporary injunction after a hearing. (Memorandum Decision and Order dated November 1, 2001.)
At a status conference on this case on December 19, 2001, the parties advised the court that they did not intend to submit any additional briefs nor did they wish oral arguments on the permanent injunction and declaratory judgment and therefore Raven's petition is ready for ruling.
In October, 2000, Midwest Professional Services applied to Shawnee County for a building permit, explicitly requesting to build a "gentlemen's club" to offer adult entertainment. Subsequently Raven, a limited liability company, was formed and Shawnee County re-issued the building permit to Raven on January 9, 2001. Shawnee County Home Rule Resolution No. HR-2001-7 was adopted on July 18, 2001 by the Board of County Commissioners (hereinafter "county") and 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. and 4) locating within 3,000 feet from any residence, church, school, or park. HR-2001-7 §§ 2-7, 14©), 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.
Raven has petitioned the court for an injunction against the defendants enforcing HR-2001-7 and also for a declaratory judgment that HR-2001-7 is unconstitutional and in contravention of state and federal law.
This court incorporates the Findings of Fact set out in this court's Memorandum Decision and Order of November 1, 2001 regarding Raven's permits, licenses and contracts.
In addition, the court finds as follows:
1. Raven did not apply for or obtain a permit for an adult entertainment studio pursuant to HR-83-12.
2. Raven's proposed business on Northeast Seward Avenue is located within 1,000 feet from the nearest residence.
3. Counsel for defendants stipulated that the county had neither 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 the Home Rule Ordinance (HR-2001-7) to any specific study or court case that the Commission relied upon in enacting the Ordinance.
The Declaratory Judgment Act grants courts jurisdiction to determine the validity of statutes, resolutions or ordinances before a party commits a violation under such laws. Generally, only a person directly affected has the standing to challenge an unconstitutional governmental action. Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 69, 697 P. 2d 1310 (1985).
However there is a special rule of standing when the statute involved purports to regulate or proscribe the rights of speech or press protected by the First Amendment. Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular party, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute.
Moody, Id. at 69-70 (quoting from Shawnee County District Court Judge E. Newton Vicker's Memorandum Decision).
The Kansas Supreme Court in City of Baxter Springs v. Bryant, 226 Kan. 383, ¶¶ 1-4, 598 P.2d 1051 (1979) set out the presumptions and rules of construction that guide a court when a statute (or ordinance) is attacked on constitutional grounds:
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution.
In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.
Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt.
The property, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which courts cannot interfere.
In this court's previous decision in this case regarding the temporary injunction (Memorandum Decision of November 1, 2001, pp. 5-7), the court addressed the issues of whether HR-2001-7 met the O'Brien Test (United States v. O'Brien, 391 U. S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)) and whether HR-2001-7 was facially overbroad regarding the ordinance's prohibition against touching (Memorandum Decision, pp 8-9). This court incorporates those sections into this Memorandum Decision and Order regarding a permanent injunction and declaratory judgment. The court finds that HR-2001-7 does not meet the O'Brien test because the legislative conclusion regarding secondary effects was not supported by substantial evidence in the record.
Furthermore, this court finds that Section 14(B) of HR-2001-7 pertaining to a prohibition against touching is constitutionally overbroad. The Kansas Court of Appeals struck down an almost identical prohibition in DPR, Inc. v. City of Pittsburg, 24 Kan. App. 2d 703, 720-21, 953 P.2d 231 (1998), rev. denied, 264 Kan. 821 (1998).
Plaintiff, Raven Development Company, also contends that HR-2001-7 is facially overbroad regarding its definition of adult entertainment business. HR-2001-7 defines "adult entertainment business" as follows:
Adult entertainment business means any premises to which the public, patrons or members are invited or admitted and which are so physically arranged as to provide booths, tables, cubicles, rooms, compartments or stalls separate from or in the common areas of the premises, wherein an entertainer appears semi-nude or nude and provides entertainment to a member of the public, a patron or a member, when such entertainment is held, conducted, operated or maintained for a profit, direct or indirect. An adult entertainment business includes, without being limited to, any premises that is physically arranged and used as such, whether advertised or represented as an entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
Plaintiff points out that the County deleted from this definition the exception for "theaters, concert halls, or similar establishments where entertainment is performed for groups of four or more." This exception was included in the County's original version of the resolution but was later deleted. That original version of "adult entertainment business" contained language identical to the language in the definition of "adult entertainment studio" found in the predecessor resolution HR-83-12.
The Kansas Supreme Court specifically upheld this "physical arrangement" definition contained in HR-83-12 in Moody v. Board of Shawnee Co. Comm'rs, 237 Kan. 67, 78, 697 P.2d 1310 (1985):
The Resolution [HR-83-12] places adult entertainment studios in a separate classification for regulatory purposes. This is accomplished on the basis of the unique physical structure of the studios and the peculiar nature of the services provided. The Resolution is carefully and narrowly drawn so that it does not affect other enterprises. . .
However, the definition in HR-83-12 includes the "theaters, concert halls, or other establishments" exception, whereas HR-2001-7 does not.
The County argues the definition in HR-2001-7 is not overbroad because facilities such as the Topeka Performing Arts Center (TPAC) and movie theaters are not physically arranged in a way that would place them within the context of HR-2001-7. While the County may be correct about TPAC and movie theaters, the description of the physical arrangement is broad enough to include dinner theater establishments which contain tables and booths such as the Topeka Civic Theater and Terrance McKerr's Theater Pub in the Ramada Inn.
Raven cited a case recently decided by the Wisconsin Supreme Court, Lounge Mgmt, Ltd. v. Town of Trenton, 580 N.W. 2d 156, (Wis. 1998), cert. denied, 525 U.S. 1001, 119 S. Ct. 511, 142 L. Ed. 2d 424 (1998), where an ordinance prohibiting public nudity was challenged as being overbroad. The Wisconsin Supreme Court held that in the absence of an exception for artistic endeavors, the ordinance was overbroad, because it "regulate[d] expressive conduct protected by the First Amendment to the United States Constitution that has no connection to the potential harmful secondary effects arising from nude dancing in liquor licensed establishments and it does so in a real and substantial manner." Id. at 162.
The Wisconsin Supreme Court found that the ordinance, even if narrowly construed, could lead to infringements on protected expression:
Even as narrowly construed by the dissent [as prohibiting only "animate public nudity at establishments licensed . . . to sell alcohol"], the Ordinance continues to bar protected expression involving nudity that does not implicate the secondary effects associated with barroom erotic nude dancing that the Town alleges was its primary objective in creating the Ordinance. Examples of artistic expression barred by the Ordinance range from the presentation of a play involving the briefest moment of a woman exposing one breast as part of the script of the production to the hypothetical productions of "Hair" and "Equus" cited by Justice Souter in Barnes, or the even more revealing production "L'apres midi d' un faune" discussed by Judge Posner in Miller v. Civil City of South Bend, 904 F. 2d 1081, 1090 (7th Cir. 1990) (Posner, J. concurring), rev'd sub nom. Barnes v. Glen Theater, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991). Thus, examples of infringement upon protected expression by the Ordinance range across the artistic gamut.
Id. at 163.
This court finds that HR-2001-7 is overbroad because it includes establishments where there may be artistic performances with brief periods of nudity thereby regulating "expressive conduct protected by the First Amendment to the United States Constitution that has no connection to the potential harmful secondary effects arising from nude dancing in liquor licensed establishments." Id. at 162.
Raven contends that the ordinance is a facially invalid prior restraint on speech. The County agrees that prior restraints are closely scrutinized by courts. The United States Supreme Court in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225-26, 110 S. Ct. 596, 107 L. Ed. 2d 603, summarized the U.S. Supreme Court's prior holdings regarding prior restraint:
While "prior restraints are not unconstitutional per se . . . any system of prior restraint . . . comes to this court bearing a heavy presumption against its constitutional validity." [citations omitted]. Our cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First a scheme that places "unbridled discretion in the hands of a governmental official or agency constitutes a prior restraint and may result in censorship." [citations omitted]. . .
Second, a prior restraint that fails to place limits on the time within which the decision maker must issue the license is impermissible. [citation omitted].
The time limits set out in HR-2001-7 for the County to act on applications and also the procedure and time limits for judicial review are appropriate and do not trigger the second prior restraint violation described in FW/PBS, Inc.
However, Raven contends that HR-2001-7 places "unbridled discretion in the hands of a governmental official or agency" and therefore is unconstitutional on its face. Section 4 sets forth the standards for issuance of the license to operate an adult entertainment business and Section 7 sets forth the standards for the issuance of a permit for adult entertainers. Both sections have similar standards which the applicant must meet including one requiring the applicant to be "a person of good moral character and reputation in the community in which he or she resides." The other standards provide that the applicant has been a resident of Shawnee County for 30 days prior to the date of application and that the applicant shall not have been convicted or pleaded nolo contendere to a felony or any crime involving moral turpitude within five years preceding the application. There is also a requirement that the applicant shall not have been convicted or pleaded nolo contendere to any violation of the ordinance.
While prior convictions and the residency requirement are objective standards, the requirement that the applicant be a person of good moral character and reputation is more subjective. Raven contends that the "moral character" requirement gives the county "unbridled discretion in granting licenses and permits." Raven cites the case, R.W.B. of Riverview, Inc. v. Stemple, 111 F. Supp. 748 (S.D. W. Va. 2000) in which a similar adult business licensing scheme was found to grant unconstitutionally broad discretion.
The County counters that other courts have upheld such provisions and have defined "good moral character" to mean no felony convictions or crimes involving moral turpitude. Club Southern Burlesque, Inc. v. City of Carrolton, Georgia, 265 Ga. 528, 457 S.E. 2d 816 (Ga. 1995). In Southern Burlesque, the ordinance required "owners and employees to be of 'good moral character' defined as, although not limited to, having no convictions of a felony or crime of moral turpitude within the previous five years." Id. at 819. The court apparently ignored the fact that the definition of good moral character was "not limited to" having no convictions of a felony or crime of moral turpitude. The court found that the ordinance did not place "unbridled discretion" in the hands of the City because "good moral character" was defined as having no felony convictions.
However, in HR-2001-7, the requirement that the applicant be a person of good moral character and reputation in the community is an additional stand-alone requirement that is separate from the requirement that the applicant have no convictions of felonies or crimes involving moral turpitude within five years preceding the date of the application. The stand-alone provision requiring the applicant to be a person of good moral character and reputation in the community is extremely subjective and places "unconstitutionally broad discretion" in the hands of the County.
Raven also complains that the ordinance's prerequisites for licenses and permits are not narrowly tailored to combat the targeted secondary effects. The County does not specifically address Raven's arguments regarding this issue. Raven cited a case from the Seventh Circuit in which the court struck licensing requirements that an applicant produce such information as residential address, recent color photographs, social security number, fingerprints, tax-identification number and driver's license information. The court found that this information was "redundant and unnecessary for [the City's] stated purposes." Schultz v. City of Cumberland, 228 F. 3d 831, 852 (7th Cir. 2000). The court further found that "[i]ts required disclosure serves no purpose other than harassment, because it is not narrowly tailored to the government's interests in the time, place or manner of adult entertainment." Id.
The same court also struck licensing provisions that disqualified applicants who had been convicted of specified criminal activity:
The First Amendment also does not allow licensing provisions based on criminal history that "totally prohibit certain classes of person" from First Amendment expression. Genusa, 619 F.2d at 1218. We struck provisions of the Peoria licensing scheme in Genusa that disqualified applicants who previously had a liquor-license revocation, felony conviction or a specified sex-related conviction. Id. at 1218. These provisions were absolute prohibitions on speech, and the city failed to demonstrate that its goals "[could not] be effectuated by means that impact less drastically on protected freedoms." Id. at 1219. The disqualification provisions were content-based prohibitions of expression that do not fall within Barnes and Erie and fail to provide alternative channels for communication under Renton and Young. As we explained in Genusa, "We know of no doctrine that permits the state to deny to a person First Amendment liberties other than the right to vote solely because that person was once convicted of a crime or other offense." Genusa, 619 F.2d at 1219 n.40.
Id. at 852-53. But see, Club Southern Burlesque, Inc. v. City of Carrolton, Georgia, 457 S.E. 2d 816 (Ga. 1995) and Pel Asso, Inc. et al. v. Joseph et al., 262 Ga. 904, 427 S.E. 2d 264 (Ga.. 1993) (licensure provisions requiring revocation of a license due to unlawful acts or omissions of the licensee were held constitutional when the acts involved were related in any way to the business for which the license was issued).
The United Supreme Court in FW/PSP, Inc. declined to address the issue of prior convictions because Justice O'Connor found that no party in the case had standing to raise the issue. However, Justice O'Connor noted that:
. . . the District Court held that five enumerated crimes from the list of those creating civil disability were unconstitutional because they were not sufficiently related to the purpose of the ordinance. See 648 F. Supp., at 1074 (striking bribery, robbery, kidnapping, organized criminal activity, and violations of controlled substances acts). The City of Dallas subsequently amended the ordinance in conformity with the District Court's judgment.
FW/PBS, Inc. v. Dallas, 493 U.S. at 221-22.
It appears to this court that licensing provisions barring those with any criminal felony convictions (even if the provisions limit the felony convictions to within the last five years) are not narrowly tailored to combat the targeted secondary effects and therefore may violate prior restraint.
Raven maintains that Raven's right to use the Northeast Seward property as an adult entertainment business vested prior to the passage of HR-2001-7. K.S.A. 12-764(b) provides that:
For all purposes other than single-family developments, the right to use land for a particular purpose shall vest upon the issuance of all permits required for such use by a city or county and construction has begun and substantial amounts of work have been completed under a validly issued permit.
Raven contends that it had obtained all permits required of it prior to the passage of HR-2001-7. The County counters that Raven did not have a permit to operate an adult entertainment studio. Prior to the enactment of HR-2001-7, HR-83-12 was in effect. In addition, HR-83-12 was specifically upheld to be constitutional by the Kansas Supreme Court in Moody v. Board of County Commissioners, 237 Kan. 67 (1985). It is conceded that Raven did not obtain a permit pursuant to HR-83-12. However, the court must determine whether Raven was required to obtain a permit under HR-83-12. Raven's attorney allegedly advised Raven that the ordinance did not apply. Raven also contends that it was advised by Assistant County Counselor Leisinger that he didn't think HR-83-12 applied to Raven. Leisinger, however, disputes Raven's claim regarding his statement. Furthermore, Raven's architect received a letter dated June 19, 2001 from Richard Eckert, Shawnee County Counselor, in which the architect was informed that the facility required a license pursuant to HR-83-12.
Certainly, as stated in Moody "[t]he resolution is not aimed at nude dancing. It is aimed at sex for hire in adult entertainment studios, where the Board found that prostitution has occurred and where the providing of various sexual services creates conditions that generate prostitution and other crimes. Expression, either by words or by dancing, is not the target of this legislation." Moody, 237 Kan. at 75.
However, while the intent of HR-83-12 may not have been aimed at "nude dancing," if a facility falls within the definition of "adult entertainment studio," HR-83-12 applies. As stated previously, the definition of "adult entertainment studio" in HR-83-12 is nearly identical to the definition of "adult entertainment business" in HR-2001-7. The only difference is that HR-83-12 contains the theater exception as noted above. It follows then if Raven is an adult entertainment business under HR-2001-7, it is an adult entertainment studio under HR-83-12. Based on the evidence presented in the temporary injunction hearing regarding Raven's physical arrangement, this court finds that both HR-2001-7 and HR-83-12 apply to Raven.
This court concludes that the right to use the land for an adult entertainment business had not vested prior to the enactment of HR-2001-7 because all permits for such use had not been obtained. Therefore, there was no violation of K.S.A. 12-764(b).
A violation of due process claim requires (1) a cognizable property interest (2) that is deprived without procedural safeguards. Cleveland Board of Education v. Loudermill, 470 U. S. 532, 542-43, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1988). First of all, as stated above, it is unlikely that Raven had a vested right to operate its property as an adult entertainment business. Certainly, at the time of the passage of HR-2001-7, Raven had not opened its doors and Raven had not obtained a permit as an adult entertainment studio under the predecessor ordinance.
Even if Raven did have a vested right, the County argues that Raven was afforded notice and an opportunity to be heard prior to the adoption of the ordinance. In fact, Mr. Vigola, the architect of the project, spoke at the first public hearing regarding the proposed ordinance.
Raven cites Stockman v. United Government of Wyandotte County/Kansas City, Kansas, 27 Kan. App. 2d 453, 454, 462, 6 P.3d 900 (2000), and implies that Raven should have received individual notice of the County's intent to adopt the new ordinance regarding adult entertainment businesses. However, due process does not include a right to receive individual notice in all situations.
[w]hether an affected party must receive individual notice depends on the character of the action. When individual interests are adversely affected by legislation action, publication of the statute puts all individuals on notice of a change in the law of the jurisdiction; individual notice is not required. Texaco v. Short, 454 U. S. 516, 513-38, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1985). 'It has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property rights.' Id. at 536.
Brown v. McGarr, 774 F. 2d 777, 784 (7th Cir. 1985).
The County provided excerpts from the County Commission meetings during which the Home Rule Ordinances regarding adult entertainment businesses were discussed, hearings were held and the resolution was adopted. HR-2001-7 became effective after publication in the official county newspaper. The court finds that the hearings and publication satisfies procedural due process.
Raven alleges that HR-2001-7 unconstitutionally impairs its contract obligations. The United States Constitution provides that "no state shall . . . pass any law impairing the obligations of contracts . . ." U. S. Const. Art. I, § cl, 1.
Raven concedes that the contract clause is not absolute but that "it must be understood to impose some limits upon the power of a state to abridge existing contractual relationships, even in the exercise of its otherwise legitimate police power." Allied Structural Steel Co. v. Spannous, 438 U.S. 234, 241-42, 98 S. Ct. 2716, 57 L. Ed. 727 (1978). The County reiterates that the contract clause is not absolute and cites Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231, 78 L. Ed. 415 (1934) where the United States Supreme Court stated that ". . . the reservation of the reasonable exercise of the protective power of the State is read into all contracts . . ." 290 U.S. at 444.
Raven points specifically to Section 12 of HR-2001-7 which prohibits an adult entertainment business from operating within three thousand (3,000) feet of any pre-existing residence, church, school or park. The County provided an affidavit from Mr. Frank Weinhold, the Zoning Administrator, that Raven was located within 1,000 feet from the nearest residence. Thus, Raven is located within 3,000 feet of the nearest residence and could not operate as an adult entertainment business pursuant to HR-2001-7. Raven alleges that it will be unable to operate (under any condition) the business necessary for the fulfillment of its contract obligations. Raven specifically alleges impairment of its contract with the bank for its loan and its employment agreements with a manager, cooks and other employees. However, none of the contracts were entered into evidence for the court to review. While it is clear that under HR-2001-7 Raven cannot operate as an adult entertainment business, there is no evidence before the court that the alleged "impaired" contracts were contingent upon Raven operating as an adult entertainment business. Arguably, Raven could change its proposed use and legally operate as a restaurant or as a drinking establishment. Therefore, Raven has not established that HR-2001-7 has impaired any of its contracts let alone that it unconstitutionally impaired Raven's contracts.
Raven contends that certain provisions of HR-2001-7 are in the nature of zoning ordinances and that the County failed to comply with the statutory procedural requirements for zoning, in particular, the requisite notice to the City of Topeka pursuant to K.S.A. 12-743(b).
The relevant portion of K.S.A. 12-743(b) provides the following:
Before any county adopts a comprehensive plan or part thereof, subdivision regulations, zoning regulations or building or setback lines affecting property located within three miles of the corporate limits of a city, written notice of such proposed action shall be given to the governing body of such city.
K.S.A. 12-742(10) defines "zoning" as "the regulation or restriction of the location and uses of buildings and uses of land." Clearly, certain provisions of HR-2001-7 fall within that definition. One of the primary issues that was litigated in Fifth Column v. Village of Valley View, Ohio, 100 F. Supp. 2d 493. (N.D. Ohio 1998), aff'd, 221 F. 3d 1334 (6th Cir. 2000) was whether an ordinance which prohibits the establishment of an adult entertainment business within one mile of any public or private school, preschool or day-care center or within 2,000 feet of a residential dwelling, church or park is a zoning ordinance. The court found that such an ordinance was a zoning ordinance and since Valley View had not followed Ohio statutory requirements regarding adoption of zoning ordinances, the ordinance was invalid.
The same logic is applicable to HR-2001-7. Raven alleges that the County failed to provide the requisite notice to the City of Topeka as required by K.S.A. 12-743(b). However, this court heard no evidence as to whether or not the County complied with Kansas Zoning Law. If, in fact, the County failed to comply with the statutory zoning procedural requirements, those portions of HR-2001-7 which "regulate or restrict the location and uses of buildings and uses of land" are invalid.
Based on the court's findings and conclusions set out above, this court grants Raven's petition for an injunction against the defendants enforcing HR-2001-7. In addition, this court finds that HR-2001-7 is unconstitutional in its entirety under the intermediate scrutiny test established in O'Brien and, in addition, other HR-2001-7 provisions are unconstitutional or invalid as more specifically set out above. This Memorandum Decision contains the court's findings and rulings and no further journal entry is required.
IT IS SO ORDERED.
Dated this day of April, 2002.
______________________
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 on this 30th day of April, 2002, 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
______________________
Norma J. Dunnaway
Administrative Assistant