Opinion
Case No. 6:03-cv-1422-Orl-31DAB.
December 16, 2004
ORDER
This case is before the Court on Defendant City of Palm Bay's Motion for Summary Judgment (Doc. 57) and Plaintiff Your Dreams, Inc.'s Opposition (Doc. 68) thereto. The Court heard oral argument on December 16, 2004.
I. BACKGROUND
Your Dreams currently owns and operates an establishment, Club Goddess, that features scantily clad women who dance as a form of entertainment. Your Dreams has operated Club Goddess, with certain interruptions, for over a decade in its current location. Club Goddess is within the municipal limits of the City of Palm Bay. This is the second court case between Your Dreams and the City regarding the operations of Club Goddess.
Club Goddess used to be operated as "Flash Dancer." For simplicity, the Court will refer to Your Dreams' establishment as Club Goddess because, however named, it has retained the same ownership and offered the same form of entertainment at all times relevant to this proceeding.
The first court case occurred in 1994. Your Dreams sued the City of Palm Bay in state court to challenge the constitutionality of the City's adult entertainment code ("Code"), and the City counterclaimed to enforce the Code.
To resolve the first court case, Your Dreams and the City reached a settlement agreement ("Agreement"). The City amended the Code in certain respects and agreed to permit a less racy form of dance entertainment. Club Goddess' dancers were to wear certain dress elements, in a certain fashion, so as not to expose their vaginal areas and the areolae of their breasts; and the dancers, furthermore, were to perform their routines in such a way as not to violate the Code. Your Dreams, in turn, agreed that the Code was constitutional and agreed to the foregoing and various other limitations the Code and the Agreement placed on Club Goddess' operations. Ostensibly, this uneasy truce held for several years, until October 2003.
On October 2, 2003, after a hiatus for renovations, Club Goddess held a grand reopening. According to the City, the manner in which Your Dreams publicized this event violated the Agreement, and certain dancers at the event exposed themselves in a manner that violated the Code. Allegedly, for these reasons, the City claims that several of its uniformed officers entered Club Goddess and notified the management and dancers of the Code's prohibitions. According to Your Dreams, the City's officers threatened to arrest anyone who danced, regardless of their attire. Following the City's visit, apparently all the dancers and the patrons left and Club Goddess was effectively closed.
On October 3, 2003, Your Dreams filed this lawsuit and, thus, this second court case ensued. Your Dreams contends that the City's conduct is part of a campaign of harassment calculated to drive Club Goddess out of business. Club Goddess' manager claims that, on October 5, 2003, a City officer indicated that unless the club ceased all of its dancing entertainment, the City would enter the club and arrest individuals including the management. Although the City apparently relented somewhat and has since allowed dancing to recommence at Club Goddess, Your Dreams continues to press its Complaint (Doc. 1), which includes claims, inter alia, for damages and as well as for a declaratory judgment to the effect that the City unconstitutionally interfered with dancing at Club Goddess.
II. FINDINGS AND ANALYSIS
Under the First Amendment, it is clear that dancing, even scantily clad dancing, is a form of expression entitled to some amount of protection from official regulation. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66 (1981). The City does not contest this point.
Rather, the City argues that this case concerns, at best, a breach of the Agreement and, as a breach of contract action, this case raises no basis for federal question jurisdiction. See 28 U.S.C. § 1331. The City also argues that Your Dreams' claims are barred by the doctrines of waiver, release, collateral estoppel, and res judicata because of the first court case and the Agreement that resolved it. At base, however, the City glosses over the point that, apart from the Agreement, the First Amendment provides some modicum of protection to the type of dancing at issue.
The Agreement provides, in part, the following:
the form of dancing and entertainment conducted at [Club Goddess] in accordance with [dress] format modifications shall be treated, considered and construed as appropriate under the applicable provisions of the present City of Palm Bay Ordinances, except that the types of dances and dancing as well as all other activity prohibited under the [Code] shall also be prohibited under this Agreement.
(Doc. 57, Ex. A, at 9, ¶ 3); ( id. at 8, ¶ 1, defining the special "dress format" as the "format"). In exchange for this concession from the City, Your Dreams agreed that the Code was valid and enforceable. ( Id. at 5-6, ¶¶ 2-10). Nevertheless, the Agreement simply does not reveal an understanding that, consistent with the Constitution, the City could completely bar all types of dance performances at Club Goddess.
The Court finds distinguishable the case, Harris News, Inc., v. City of Sunland Park, 2001 WL 681249 (W.D. Tex. 2001). In Harris News, an adult entertainment establishment and a city entered an agreement resolving litigation over the constitutionality of the city's adult entertainment code. Id. at *1. The establishment later sued, in relevant part, to enjoin enforcement of the code, alleging that the code was unconstitutional. Id. Apparently, the constitutionality of the code was settled by the parties' prior agreement, so the court dismissed the establishment's claims. Id. at *3-4
In the instant case, the City has not officially enforced its Code, nor does Your Dreams seek to enjoin enforcement or to challenge the Code's constitutionality. Properly defined, the dispute concerns official regulation and interference beyond that which Your Dreams agreed was constitutional.
As between the City's and the Your Dreams' evidence, there is a factual dispute over whether the City enforcement conduct created a de facto bar on all types of dance performances during Club Goddess' grand reopening event and on dates soon afterward. Viewed in light of the standard for summary judgment, the City has not shown this dispute to be immaterial. See FED. R. CIV. P. 56 (conditioning judgment on a showing that there is no genuine issue as to any material fact and that judgment is appropriate as a matter of law).
As to the City's waiver and release arguments, Your Dreams did not have occasion, in the first court case, to waive or release a constitutional claim against the City for completely barring all types of dance performances at future times. Indeed, consistent with the Agreement and the Code, at least some form of scantily clad dancing is specifically permissible at Club Goddess.
Likewise, as to the City's collateral estoppel and res judicata arguments, whether forms of dance not prohibited by the Code or the Agreement were entitled to First Amendment protection was not an issue previously decided, nor was that an issue subsumed under the Agreement. See In re Southeast Banking Corp., 69 F.3d 1539, 1552 (11th Cir. 1995) (a necessary element of collateral estoppel is that the same issue was actually litigated in a prior proceeding); Norfolk Southern Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1289 (11th Cir. 2004) (stating that "[i]n determining the res judicata effect of an order of dismissal based upon a settlement agreement, [the court] should . . . attempt to effectuate the parties' intent. The best evidence of that intent is, of course, the settlement agreement itself").
III. CONCLUSION
Ultimately, there is a colorable First Amendment claim and related factual dispute as to whether the City's enforcement conduct reached beyond the legitimate scope of the Agreement and the Code and unconstitutionally interfered with protected expression. This material dispute arises under federal law. U.S. CONST. amend. I; 42 U.S.C. § 1983. It is, therefore,
ORDERED that the City's Motion for Summary Judgment is DENIED. DONE and ORDERED.