Opinion
Court of Appeals Nos. A-9674 A-9683.
July 25, 2007.
Appeal from the District Court, Third Judicial District, Palmer, David L. Zwink, Magistrate, Trial Court Nos. 3PA-04-12009 MO 3PA-04-12010 MO.
Christine S. Schleuss, Anchorage, for the Appellant. Nicholas Spiropoulos, Borough Attorney, Palmer, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Robert Stevens was the operator of the Fish Heads Bar Grill in the Matanuska-Susitna Borough. On the evening of November 12-13, 2004, Stevens presented a performance of the Chippendales — a men's group that dances in scanty attire for predominately female audiences. According to the testimony of a borough compliance officer who observed these performances, the two Chippendales dancers presented themselves clothed only in garments that resembled athletic supporters.
See the entry for "Chippendales dancers" in Wikipedia:
http://en.wikipedia.org/wiki/Chippendales_dancers
For presenting this performance of the Chippendales, Stevens was charged with operating an "adult cabaret" without a borough permit. Stevens asked the district court to dismiss these charges, arguing that the borough permitting ordinances violated the First Amendment. The district court upheld the constitutionality of the ordinances, and Stevens was found to be in violation of those ordinances. Stevens now appeals.
For the reasons explained here, we conclude that there is a significant question whether (even under the facts alleged by the Borough) Stevens's conduct constituted the operation of an "adult cabaret" as defined in the borough ordinances. Moreover, we conclude that if the borough's definition of "adult cabaret" is construed to cover Stevens's conduct, there is a significant possibility that the borough ordinances violate the First Amendment. We therefore remand this case to the district court for further litigation of these issues.
The question of whether Stevens's bar and restaurant could properly be classified as an "adult cabaret" based on Stevens's presentation of the Chippendales on a single night
Under Matanuska-Susitna Borough Ordinance 17.90.015(A), no one may operate or maintain an "adult business" within the borough unless the borough government has issued a conditional use permit for that adult business. Moreover, Borough Ordinance 17.90.030(A) prohibits the issuance of a permit to an adult business if that business is located "less than 1,000 feet from. . . any premises licensed for the sale or service of alcoholic beverages". Thus, it appears that borough law prohibits the issuance of an "adult business" permit to any bar or restaurant with a liquor license.
In other words, if (as the Borough contends) the Fish Heads Bar Grill qualified as an "adult business" for purposes of the borough ordinances, then Stevens would need a borough permit to operate or maintain the Fish Heads Bar Grill — and he could not obtain this permit unless he first relinquished his liquor license (and also met the other permitting requirements).
Borough Ordinance 17.125.010 defines several types of "adult businesses". One of these is the "adult cabaret". The ordinance defines "adult cabaret" as:
a restaurant, coffee house, or cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers who provide live adult entertainment for commercial purposes at any time or any number of times.
The Borough's case against Stevens is based on the assertion that Stevens's bar became an "adult cabaret" because Stevens presented Chippendales dancers on a single occasion (the evening of November 12-13, 2004).
The Borough's position appears to be supported by the language of the ordinance — because the ordinance declares that a restaurant or cabaret qualifies as an "adult cabaret" if the restaurant or cabaret "features. . . live adult entertainment for commercial purposes at any time or any number of times".
However, in November 2004 (the time of Stevens's alleged offense), the ordinance did not contain this italicized language about single or isolated occurrences. Instead, the definition of "adult cabaret" ended simply with the phrase "features. . . live adult entertainment for commercial purposes".
(The words "at any time or any number of times" were not added to the definition of "adult cabaret" until 2005, after the Borough had already initiated its litigation against Stevens.)
Thus, one question that must be addressed in Stevens's case is whether his single presentation of Chippendales dancers was enough to convert his bar and restaurant into an "adult cabaret" under the pre-2005 definition: "a restaurant. . . or cabaret which features topless dancers, strippers, male or female impersonators, or similar entertainers who provide live adult entertainment for commercial purposes."
The operative word here is "features". Does a bar "feature" live adult entertainment if the bar owner presents the Chippendales (or a similar performing group) on a single occasion?
The Borough suggests that this pre-2005 language was, in fact, broad enough to cover restaurants and bars that offered live adult entertainment on even a single occasion. However, the legislative history suggests otherwise.
In the published agenda of the Borough Assembly, the 2005 ordinance that amended the definition of "adult cabaret" (by adding the words "at any time or any number of times") is described as "[a]n ordinance amending MSB 17.90, Regulation of Adult Businesses, and MSB 17.125, Definitions, to expand the definition of adult businesses. . . ." (Emphasis added) This description suggests that the drafters of the ordinance believed that the new language would broaden the definition of "adult cabaret". This, in turn, suggests that the drafters believed that the older definition of "adult cabaret" did not cover businesses which presented single or isolated offerings of live adult entertainment.
In fact, because of First Amendment concerns, the courts that have had to construe similar ordinances — i.e., ordinances regulating businesses that "feature" nude dancers or other forms of adult entertainment — have tended to construe the verb "features" as meaning "regularly presents" or "always presents" or "normally presents". In this way, courts have limited the operation of the ordinances to commercial enterprises like topless bars or "adult" theaters whose primary draw is their offering of live adult entertainment — thus avoiding the First Amendment difficulties that would arise if the ordinances applied to single or isolated theatrical performances.
For instance, in Schmitty's City Nightmare, LLC v. City of Fond Du Lac, 391 F.Supp.2d 745 (E.D. Wis. 2005), the federal court was asked to adjudge the constitutionality of a city ordinance that defined "adult cabaret" as a "building which features topless dancers, strippers. . . or similar entertainers". The court concluded that it was "eminently reasonable" to construe the ordinance as if the word "regularly" or "always" appeared before "features". The federal court noted that zoning rules generally apply to the regular uses of a building, and the court concluded that the city ordinance only made sense when interpreted in this way — because "[o]ne would not call a bar a `martini bar' if it served martinis only once a year."
Id., 391 F.Supp.2d at 756.
Id. at 757.
Likewise, in Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000), the Seventh Circuit was called upon to interpret an ordinance that defined "adult cabaret" as a commercial establishment "which regularly features. . . persons who appear in a state of nudity or semi-nude [or which regularly features] live performances. . . characterized by the exposure of `specified anatomical areas' or by `specified sexual activities'".
Schultz, 228 F.3d at 836.
The court noted that, "[a]lthough [this issue was] once furiously debated, it is now well-established that erotic dancing. . . enjoys constitutional protection as expressive conduct." And, to insure that the city's restriction on erotic dancing was limited to circumstances where the presence of this activity might reasonably be linked to increased crime, public disturbance, or other detrimental effects on the community, the Seventh Circuit held that the phrase "regularly features" had to be construed narrowly — that it should be interpreted as meaning "always features" rather than "occasionally or recurringly features". Otherwise, the Seventh Circuit noted, the ordinance's definition of "adult cabaret" could easily "include a theater or playhouse that shows on a regular basis an interpretation of Hair, a presentation characterized by much nudity but which the Court has indicated constitutes protected speech."
Id. at 839.
Id. at 849-850.
Id. at 849.
Returning to the Matanuska-Susitna Borough ordinances at issue in Stevens's case, there is significant reason to believe that the pre-2005 definition of "adult cabaret" did not cover businesses which offered a single presentation, or isolated presentations, of live adult entertainment. This narrow interpretation is seemingly supported by the legislative history — in particular, the description of the 2005 amendment as intended to "expand" the definition of "adult cabaret" by adding the words "at any time or number of times". This narrow interpretation is further supported by the canon of statutory construction which directs courts to construe statutes in a manner that avoids constitutional difficulties.
See, e.g., Treacy v. Anchorage, 91 P.3d 252, 260 (Alaska 2004); State v. Morgan, 111 P.3d 360, 361 (Alaska App. 2005).
However, the district court did not directly address this issue when Stevens's case was litigated below. We therefore do not decide whether, under the pre-2005 definition of "adult cabaret", Stevens's conduct in presenting the Chippendales dancers on a single evening was sufficient to turn his bar and restaurant into an "adult cabaret". Rather, we remand Stevens's case to the district court, and we direct the district court to consider this issue.
The question of whether the Borough's definition of "adult cabaret" is constitutional if it covers even a single presentation of live adult entertainment
As the preceding section of this opinion suggests, one of the underlying concerns when interpreting the term "adult cabaret" is that, if this term is construed broadly, the borough's permitting scheme may violate the right of expression guaranteed by the First Amendment.
Both the United States Supreme Court and the Alaska Supreme Court have held that erotic dancing ( i.e., nude or almost-nude dancing) has expressive aspects, and that it is therefore entitled to protection under the First Amendment to the United States Constitution and Article I, Section 5 of the Alaska Constitution. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Mickens v. Kodiak, 640 P.2d 818, 820 (Alaska 1982).
As stated by the Alaska Supreme Court in Mickens v. Kodiak, a government can not prohibit erotic dancing (or any other type of expression) based on its content alone unless the prohibition is supported by "the most compelling of reasons". 640 P.2d at 821. However, courts have allowed the government to regulate erotic dancing through the enactment of zoning laws and other ordinances that impose restrictions on the time, place, or manner in which erotic dancing can be presented.
Because erotic dancing is protected by the First Amendment, local governments can not use zoning laws as a device to completely ban erotic dancing within their boundaries. Rather, such zoning laws will be constitutional only if they meet the four-part test for "time, place, or manner" restrictions on First Amendment freedoms. Under this test, a zoning ordinance that restricts erotic dancing or other expressive conduct protected by the First Amendment will be constitutional if
(1) the zoning ordinance furthers a substantial governmental interest;
(2) this government interest is unrelated to the suppression of speech or expressive conduct; that is, the justification for the ordinance does not rest on the content of the regulated expressive conduct;
(3) the ordinance is narrowly tailored to achieve the governmental interest with as little restriction on expressive conduct as possible; that is, the ordinance's restriction on First Amendment freedoms must be no greater than is essential to the furtherance of the substantial governmental interest; and
(4) the ordinance must leave open reasonable alternative avenues for presenting and engaging in the restricted expressive conduct.
See the discussion of this area of law in Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702, 713-722 (7th Cir. 2003). See also BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 605-07 (8th Cir. 2001); Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir. 1998). With this legal test in mind, we now examine the borough ordinances at issue in this case: ordinances that establish permitting requirements for anyone seeking to operate or maintain an "adult business" — a term which is defined as "any adult bookstore, adult cabaret, adult mini-theater, or adult motion picture theater".
Matanuska-Susitna Borough Ordinance 17.90.005, "Definitions", subsection (A)(6).
As already explained, the Borough charged Stevens with operating a non-permitted "adult cabaret" — a phrase which, at that time, was defined as "a restaurant. . . or cabaret which features topless dancers, strippers,. . . or similar entertainers who provide live adult entertainment for commercial purposes."
And, as also explained above, the Borough contends that this pre-2005 definition was broad enough to encompass any business that presented "topless dancers, strippers, [or] live adult entertainment" for commercial purposes on even a single occasion.
To analyze the constitutionality of the Borough's proposed interpretation of the ordinance, one must understand the definition of "adult entertainment".
In the borough ordinance, the term "adult entertainment" is defined as "any motion picture, live performance, display, or dance of any type" if the dominant theme of that motion picture, performance, display, or dance is "actual or simulated specified sexual activities, [or] display or exhibition of specified anatomical areas, removal of articles of clothing, or total nudity", and if the motion picture, performance, display, or dance is "offered for commercial purposes".
Next, to understand this definition of "adult entertainment", one must know the definitions of "specified sexual activities" and "specified anatomical areas" — because a motion picture, performance, display, or dance qualifies as "adult entertainment" if its "dominant theme" is either "actual or simulated specified sexual activities" or "display or exhibition of specified anatomical areas".
"Specified sexual activities" is defined in the ordinance as "simulated or actual (a) display of human genitals in a state of sexual stimulation or arousal; [or] (b) acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio, or cunnilingus; [or] (c) fondling or erotic touching of human genitals, pubic region, buttocks, or female breasts."
"Specified anatomical areas" is defined in the ordinance as "(a) less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; and (b) human male genitals in a discernibly turgid state, even if opaquely covered."
Tying these definitions together, it appears that the borough's definition of "adult entertainment" includes any "motion picture, live performance, [or] display" whose "dominant theme" can be categorized as "acts of. . . sexual intercourse" or "acts of. . . sado-masochistic abuse" or "[the] erotic touching of human genitals,. . . buttocks, or female breasts", if the motion picture, live performance, or display is offered for commercial purposes.
If, as the Borough claims, a commercial enterprise would violate borough law by presenting this type of material on even a single occasion (without first obtaining the required permit), it would appear that the Borough could initiate legal action against the operators of movie theaters and playhouses who presented a single movie or play whose "dominant theme" was sexual intercourse, or sado-masochism, or even erotic touching short of intercourse.
Similarly, because the borough's definition of "adult entertainment" includes any motion picture or live performance whose "dominant theme" can be categorized as "[the] display or exhibition of specified anatomical areas" — that is, the display or exhibition of "less than completely and opaquely covered human genitals, pubic region, buttocks, [or] female breast below a point immediately above the top of the areola" — it would appear that the Borough could initiate legal action against operators of movie theaters and playhouses who presented the musical "Hair" — a production that features extensive nudity.
Moreover, because the borough's definition of "adult entertainment" includes any commercial "display" whose "dominant theme" can be categorized as "[the] display or exhibition of specified anatomical areas", the Borough could seemingly initiate legal action against a restaurant or playhouse that held a spring promotion in which live models were dressed in fashion gowns or prom dresses — because such dresses are routinely cut so low that they do not "completely and opaquely cover [the entire] female breast below a point immediately above the top of the areola".
Conceivably, even these broad applications of the permitting ordinances might be justified (under the four-part test explained above) if the Borough showed that it had a substantial governmental interest in controlling even isolated commercial performances and displays of a sexual nature, and if the Borough showed that its ordinances were narrowly tailored so that the restrictions on expressive conduct were no greater than necessary to accomplish this substantial governmental interest.
But, according to the record before us, when the Borough Assembly passed its permitting ordinances, the only studies that the Assembly relied on, and the only findings that the Assembly made, concerned the deleterious effects of commercial enterprises that always or normally feature sexually oriented entertainment. (The Assembly's action was prompted by citizen complaints about an adult video store — an establishment whose activities would now fall within the borough's definition of "adult bookstore".) The Assembly's studies and findings do not appear to address the question of whether a community suffers deleterious effects when a commercial enterprise such as a restaurant, playhouse, or movie theater offers sexually oriented entertainment on a single occasion, or on a few isolated occasions.
Finally, we note that, under the four-part test, the borough's permitting ordinances would be constitutional only if they leave open reasonable alternative avenues for presenting sexually oriented entertainment. It is not clear that the borough's ordinances meet this requirement.
Under MSB Ordinance 17.90.015(A), a person must obtain a permit to operate or maintain an adult business. But, under MSB Ordinance 17.90.025(E), the borough's planning and land use commission is authorized to grant a permit "only if the applicant shows, and the commission finds":
(1) that the proposed [adult business] is compatible with[,] or will not materially detract from[,] the value, character, and integrity of surrounding residential areas;
(2) that granting the. . . permit will not be harmful to the public health, safety, convenience, and welfare; and
(3) that the proposed [adult business] will not contribute to crime, noise, litter, traffic congestion, visual blight, [or] juvenile delinquency in areas surrounding the business.
As explained above, the Borough Assembly's justification for enacting the permitting ordinances was its conclusion that adult businesses do have some or all of these deleterious effects on communities. It therefore seems that it would be very difficult, if not impossible, for a business owner to show that a proposed adult business will have none of these effects.
But Borough Ordinance 17.90.025(E) seems to require this showing — i.e., a showing of absolutely no deleterious effects — before the borough government is authorized to grant a permit for an adult business. If that is so, then it would appear that the borough permitting ordinances fail the fourth part of the four-part test — because they do not allow reasonable alternative venues for adult entertainment.
We acknowledge that in November 2004 ( i.e., at the time that Stevens was charged), the borough ordinances at issue in this case applied only to the "core area" of the borough. (These ordinances now apply throughout the borough — or, more specifically, everywhere in the borough except within the city limits of Palmer, Wasilla, and Houston. See Borough Ordinance 17.90.050(B).)
The "core area" of the Matanuska-Susitna Borough is generally defined as the area lying between the cities of Palmer and Wasilla. This core area includes 58,834 acres of land out of a total borough area of 14,720,000 acres.
Because the ordinances applied only to the core area in November 2004, it was possible for the Borough to argue (and, indeed, the Borough did argue) that the ordinances provided reasonable alternative locations for adult businesses — i.e., outside this core area.
However, the district court made no finding as to whether the portion of the borough lying outside the "core area" did, in fact, provide reasonable alternative locations for adult businesses. If, for instance, the portion of the borough lying outside the core area was not readily accessible by road and had no utilities, then there would be a significant question as to whether this portion of the borough offered reasonable alternative locations for an adult business.
Because we are remanding this case to the district court, we need not resolve these issues at present. However, we direct the district court to consider these issues during its proceedings on remand.
Conclusion
This case is REMANDED to the district court for consideration of the issues discussed in this opinion.
The district court shall issue findings on the two major issues presented in this case: (1) Did the pre-2005 version of the borough's permitting ordinances apply to businesses that presented live adult entertainment on a single occasion, or on isolated occasions, as opposed to always or normally featuring this type of entertainment? And if the pre-2005 version of the borough permitting ordinances did apply to businesses that presented live adult entertainment on a single occasion or on isolated occasions, (2) were those ordinances constitutional under the four-part test explained above?
The district court shall transmit its findings to this Court (and distribute its findings to the parties) within 90 days of the issuance of this opinion. The district court may request an extension of this deadline if more time is needed.
If the district court upholds the application of the ordinances to Stevens, Stevens shall have 30 days to file a brief responding to the district court's findings, and the Borough shall then have 30 days to file an answering brief.
If, on the other hand, the district court concludes that the ordinances did not apply to a single presentation of live adult entertainment or, if they did, that the ordinances were unconstitutional, then the Borough shall have 30 days to file brief responding to the district court's findings, and Stevens shall then have 30 days to file an answering brief.
When we have received the district court's findings and the briefs of the parties, we will resume our consideration of this appeal.