Sob, Inc. v. County of Benton

171 F.Supp.2d 978

SOB, INC., a Minnesota corporation, d/b/a "Sugar Daddy's"; Amy Chenoweth; Shannon Wiborg; Kathryn Haskins; Mark Van Gelder; and Mary Clifford Van Gelder, Plaintiffs, v. COUNTY OF BENTON, Defendant.

No. 01-CV-1239-DDA/RLE.

United States District Court, D. Minnesota.

November 5, 2001.

Randall Tigue Law Office, P.A. by Randall D.B. Tigue, Minneapolis, MN, for Plaintiffs.

Ratwik, Roszak & Maloney, P.A. by Scott T. Anderson and Amy E. Mace, Minneapolis, MN, for Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT

ALSOP, Senior District Judge.

This matter was before the Court on September 11, 2001, for a combined hearing pursuant to Fed.R.Civ.P. 65(a)(2) on Plaintiffs' application for a preliminary injunction and a trial on the merits. Based on the arguments and memoranda of counsel, the evidence in the record, and the applicable law, the Court makes the following

FINDINGS OF FACT

1. Defendant County of Benton (hereinafter "Benton County") is a political subdivision of the State of Minnesota.

2. A business called "The King's Inn" opened in Benton County in September 1993. The King's Inn offered live, nude dance entertainment to the public.

3. Shortly after The King's Inn opened, Benton County unsuccessfully sought to enforce a conditional use permit requirement against The King's Inn¹. Benton County in July 1994 then passed a zoning ordinance limiting the location of sexually-oriented businesses². In enacting the zoning ordinance, the Benton County Commissioners considered studies of the effects of sexually-oriented businesses on the neighborhoods surrounding those businesses. Those studies were conducted in St. Paul and Rochester, Minnesota; Los Angeles, California; Phoenix, Arizona; Adams County, Colorado; and Austin, Texas. The Benton County Commissioners also considered a report the Minnesota Attorney General's Office had prepared on the same subject. Those studies and reports suggest, in varying degrees, that sexually-oriented businesses may cause an increase in crime rates, a decrease in property values, and other adverse secondary effects in the areas surrounding those businesses.

4. Plaintiff SOB, Inc., is a Minnesota corporation. In June 2001, SOB, Inc., opened a business called "Sugar Daddy's" in a location available for sexually-oriented businesses under Benton County's zoning scheme. Sugar Daddy's offers live, nude dance entertainment to the public. Plaintiffs Amy Chenoweth, Shannon Wiborg, and Kathryn Haskins are Minnesota residents who work as exotic dancers at Sugar Daddy's and who perform in the nude.

5. Plaintiffs Mark and Mary Clifford Van Gelder are a married couple and are Minnesota residents.

6. Within a week of the opening of Sugar Daddy's, the Benton County Attorney, in response to a request from the Benton County Commissioners for additional means of regulating sexually-oriented businesses, presented the Benton County Commissioners with a draft ordinance prohibiting "public indecency." The Benton County Attorney at the same time provided the Benton County Commissioners with copies of the studies relied upon in enacting the earlier zoning ordinance along with copies of similar studies conducted in New York, New York; St. Croix County, Wisconsin, and St. Paul, Minnesota. The additional studies reach conclusions consistent with those of the studies Benton County considered in enacting the earlier zoning ordinance.

7. The Benton County Commissioners held a public hearing on the proposed public indecency ordinance on July 3, 2001. At that hearing, the Benton County Commissioners received written and oral comments from both proponents and opponents of the proposed ordinance. Plaintiff Mark Van Gelder presented the Benton County Commissioners with a study disputing the link between sexually-oriented businesses and adverse secondary effects. Van Gelder also presented evidence suggesting that the businesses offering live, nude entertainment in Benton County had no demonstrable adverse effects upon local crime rates or property values.

8. The Benton County Commissioners adopted the proposed ordinance as Benton County Ordinance 332 (hereinafter "the Ordinance") immediately following the public hearing by a vote of 4-1. A copy of the Ordinance is attached to Plaintiffs' Complaint and is part of the record. The Ordinance as adopted prohibits a person from appearing in a state of nudity in public, Ordinance Section 4.A., and from fondling his or her own genitals or the genitals of another person in public. Id. at Section 4.B., C.

9. The presence of businesses offering live, nude entertainment in Benton County has not adversely affected property values or increased crime in the areas near those businesses.

10. Benton County's motivation in adopting the Ordinance was to disrupt or eliminate businesses in Benton County that offer live, nude entertainment.

11. To the extent that any of the Court's conclusions of law are deemed to be findings of fact, those findings are incorporated herein by reference.

CONCLUSIONS OF LAW

1. The Supreme Court has recognized that the First Amendment protects nude erotic dancing as a form of artistic expression. See City of Erie v. Pap's A.M., 529 U.S. 277, 285, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion) (citing cases). A majority of the Supreme Court also has recognized that legislative prohibitions of public nudity receive intermediate judicial scrutiny pursuant to the test articulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), because such prohibitions may interfere incidentally with protected expression. Pap's, 529 U.S. at 289, 120 S.Ct. 1382 (four-justice plurality); id. at 310, 120 S.Ct. 1382 (Souter, J., concurring in part and dissenting in part). An ordinance passes muster under O'Brien if the ordinance is a valid exercise of the government's police power, the ordinance furthers an important or substantial governmental interest, that interest is unrelated to the suppression of free expression, and the incidental restriction on expression is no greater than necessary to further that interest. 391 U.S. at 376-77, 88 S.Ct. 1673.

2. Plaintiffs do not dispute that the enactment of the Ordinance was a valid exercise of Benton County's lawful authority.

3. The Supreme Court's decision in Pap's does not call into question Benton County's stated justification for enacting the Ordinance, which is to eliminate the adverse secondary effects of sexually-oriented businesses. Plaintiffs contend that Benton County's interest in eliminating the adverse secondary effects of nude dancing is not "important or substantial" under O'Brien because a majority of the Supreme Court has rejected that position. Some Justices in Pap's indeed were skeptical that requiring dancers to wear minimal amounts of clothing would have an appreciable effect upon the secondary effects of sexually-oriented businesses that offered nude dancing. 529 U.S. at 310, 120 S.Ct. 1382 (Scalia, J., concurring in the judgment); id. at 323, 120 S.Ct. 1382 (Stevens J., dissenting). Five Justices in Pap's, however, agreed as a general matter that a local government's interest in combating the adverse secondary effects of sexually-oriented businesses is "important or substantial" under O'Brien. See Nightclub Mgmt., Ltd. v. City of Cannon Falls, 95 F.Supp.2d 1027, 1041 n. 17 (D.Minn.2000) (discussing the treatment of secondary effects in Pap's). The Eighth Circuit also has held affirmatively that such an interest passes muster under O'Brien, Farkas v. Miller, 151 F.3d 900, 905 (8th Cir.1998), and recently reaffirmed the viability of the secondary effects doctrine in the context of zoning ordinances. BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 606 (8th Cir.2001). The Ordinance accordingly furthers an important or substantial governmental interest.

4. Benton County's motivation to suppress constitutionally protected expression does not raise the level of judicial scrutiny applied to the Ordinance. As Plaintiffs argue, the record amply demonstrates that Benton County passed the Ordinance in order to eliminate nude dancing at Sugar Daddy's and similar establishments³. The Benton County Attorney proposed the Ordinance as a constitutionally acceptable means of regulating sexually-oriented businesses, not as a general prohibition of public indecency. The record contains no complaints to the Benton County Commissioners about campus streakers, topless vendors, nude sunbathers, or any form of public nudity other than nude dancing. The comments at the public hearing, both for and against the Ordinance, focus almost entirely upon the issue of nude dancing. In light of those facts, it is disingenuous to suggest that an abstract concern with nonexistent adverse secondary effects of sexually-oriented businesses, rather than concrete complaints about the moral value of nude dancing, motivated Benton County to pass the Ordinance. Contrary to Plaintiffs' argument, however, Benton County's motivation is not dispositive. Although in most instances laws intended to target protected expression receive heightened scrutiny, laws targeting nude dancing receive intermediate scrutiny so long as the court can identify "a current governmental interest in the service of which the statute ... may be constitutional." Farkas, 151 F.3d at 905 (quoting Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring) (ellipsis in original)). See also Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th Cir. 2000) (holding that general prohibitions of public nudity receive intermediate scrutiny when the "government offers as its legislative justification the suppression of public nudity's negative secondary effects"). Because Benton County has such an interest, the Ordinance is "unrelated to the suppression of free expression." Farkas, 151 F.3d at 905 (citation omitted).

5. Benton County also has...