American Entertainers, L.L.C. v. City of Rocky Mount, NC
Opinion of the Court
The City of Rocky Mount, North Carolina ("Rocky Mount"), regulates "sexually oriented businesses" by requiring those businesses to obtain a license prior to operation. Appellant American Entertainers, LLC ("American Entertainers"), an exotic dancing venue, argues that the licensing regulation, in its entirety, violates the First Amendment on overbreadth grounds because it potentially requires licensure of venues that display "mainstream" performances such as ballets, concerts, and theatrical productions. In the alternative, American Entertainers contends that one of the licensing regulation's denial provisions is an unconstitutional prior restraint because it vests "unbridled discretion" in a governmental official to deny license applications and that another of the denial provisions violates the Equal Protection *712Clause of the Fourteenth Amendment by barring eighteen- to twenty-one-year-olds from owning "sexually oriented businesses." The district court rejected all three claims.
For the reasons that follow, we affirm the district court's denial of American Entertainers' First Amendment overbreadth challenge and Equal Protection challenge. We conclude, however, that the district court erred in rejecting American Entertainers' prior restraint claim. By authorizing the police chief to deny a license if the chief believes the applicant will fail to comply with "all applicable laws," the challenged denial provision is insufficiently "narrow, objective, and definite" to pass constitutional muster. Shuttlesworth v. City of Birmingham ,
In sum, we affirm in part, vacate in part, and remand the case to the district court for further proceedings consistent with this opinion.
I.
A.
Since 2002, American Entertainers has operated within Rocky Mount's limits a business known as "Gentleman's Playground." Gentleman's Playground features exotic dancers, whose scant attire has varied throughout its sixteen years of operation. Rocky Mount and American Entertainers previously have had disputes regarding the revealing nature of Gentleman's Playground's dancers' attire, including a voluntarily dismissed lawsuit back in 2003. Although years subsequently passed without incident, a 2014 police investigation regarding Gentleman's Playground caused Rocky Mount to seek to enforce against American Entertainers its sexually oriented business ordinance. Rocky Mount, N.C., Code of Ordinances § 13-270 et seq. [hereinafter Ordinance].
The Ordinance constitutes Chapter 13, Article VII of Rocky Mount's City Code, and addresses "the regulatory licensing requirements for sexually oriented businesses located within the city." § 13-270(a). Rocky Mount enacted the Ordinance because "[s]exually oriented businesses ... are recognized as having serious objectionable operational characteristics" and "[s]tudies and experiences in other municipalities have shown that lower property values and increased crime rates tend to accompany and are brought about by sexually oriented businesses."
The Ordinance defines a sexually oriented business as, in pertinent part, "any ... adult cabaret ... as defined in this article." § 13-271 (emphasis added). An "adult cabaret," in turn, is defined as "any retail business or private club as defined in North Carolina General Statutes § 18B-1000 which: (a) serves food or beverages, or permits the consumption of food or beverages; and (b) regularly provides or *713has available for viewing by its patrons or members adult live entertainment ."
Additionally, the Ordinance contains six license-denial provisions. § 13-273(d). The two provisions at issue in this appeal permit Rocky Mount's police chief to deny a license if either (1) "the operation [of the sexually oriented business], as proposed by the applicant, if permitted, would not comply with all applicable laws, including, but not limited to, the city's building, zoning, and health regulations;" or (2) any license applicants or other specified business principals are "not over the age of twenty-one ... years." § 13-273(d)(2), (d)(6).
B.
Rocky Mount sought to enforce the Ordinance against American Entertainers after police investigators learned that dancers at Gentleman's Playground were providing "adult live entertainment" within the meaning of the Ordinance. In response, American Entertainers filed a Complaint in the Eastern District of North Carolina challenging, among other things, the application and constitutionality of the Ordinance under the First Amendment and the Equal Protection Clause.
After the close of discovery, the parties filed cross-motions for summary judgment. The district court granted in part and denied in part the motions, resolving in Rocky Mount's favor American Entertainers' constitutional claims. American Entertainers timely filed a motion for rehearing, which the district court denied. American Entertainers timely appealed three constitutional determinations to this Court.
II.
American Entertainers asserts three arguments on appeal, that the Ordinance: (A) is unconstitutionally overbroad; (B) imposes an unconstitutional prior restraint by granting Rocky Mount's police chief unfettered discretion to deny a permit; and (C) violates the First Amendment and Equal Protection Clause by prohibiting from being owners, officers, or directors of a sexually oriented business individuals between eighteen and twenty-one years of age. Because this appeal arises from a district court's grant of summary judgment, we review each issue de novo. Askew v. HRFC, LLC ,
A.
American Entertainers first argues that the Ordinance is unconstitutionally overbroad under the First Amendment because the Ordinance defines "sexually oriented business"-and "adult cabaret," in particular-in terms "not limited to nude entertainment ... no[r] limited to alcoholic beverage establishments." Appellant's Br. 8. Therefore, the specific conduct encompassed by the definition of "specified sexual activities" "reach[es] conventional, mainstream arts and entertainment."
1.
Before considering these arguments, we first must address Rocky Mount's two threshold objections to American Entertainers' overbreadth claim: that American Entertainers lacks standing to assert a facial overbreadth challenge and that *714American Entertainers' overbreadth arguments are not properly before this Court.
Rocky Mount urges that American Entertainers lacks standing to assert a facial overbreadth challenge because Gentleman's Playground undisputedly falls within the relevant Ordinance definitions. However, this conflates the law of vagueness challenges, see, e.g. , Young v. Am. Mini Theatres, Inc. ,
Next, Rocky Mount argues that American Entertainers forfeited its right to challenge several provisions of the Ordinance as overly broad because American Entertainers' Complaint only expressly challenged as overbroad the definition of "specified sexual activities." American Entertainers' Complaint, however, alleged that "all of [Rocky Mount]'s regulations governing sexually oriented businesses are unconstitutional on their face," J.A. 11 (emphasis added), described the interlocking nature of the Ordinance definitions at issue in this appeal, and targeted the most-specifically defined term: "specified sexual activities." J.A. 42-43. Although this places primary focus on the definition of "specified sexual activities," it does so of necessity. The definition of "specified sexual activities" provides required meaning to each Ordinance section here at issue and listed in the Complaint. Further, the definition does not exist in a vacuum-it necessarily must be read within the surrounding context of the Ordinance. See Parker v. Levy ,
In sum, our analysis must consider the regulatory context surrounding the definition of "sexually oriented business," see
2.
Having rejected Rocky Mount's threshold arguments, we now address the merits of American Entertainers' overbreadth claim. In addressing that claim, we must keep in mind that "a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications." Ferber ,
"The level of First Amendment scrutiny a court applies to determine the 'plainly legitimate sweep' of a regulation depends on the purpose for which the regulation was adopted." Carandola I ,
American Entertainers does not dispute that Rocky Mount adopted the Ordinance to regulate the deleterious secondary effects of adult entertainment and therefore enacted the regulation for a purpose unrelated to the suppression of expression. Accordingly, intermediate scrutiny applies. See, e.g. , City of Renton v. Playtime Theatres, Inc. ,
Under intermediate scrutiny, we will uphold a regulation that has the potential to burden speech if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression 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." Satellite Broad. & Commc'ns Ass'n v. F.C.C. ,
The district court concluded-and we agree-that Rocky Mount "has a substantial interest in regulating exotic dancing because such entertainment has 'a long history of spawning deleterious effects.' " Am. Entertainers, L.L.C. v. City of Rocky Mount , No. 5:14-cv-438-D,
We further conclude that the licensing provisions materially advance that substantial interest. In particular, the Ordinance subjects sexually oriented businesses to a licensing fee to make such businesses "carry [their] share of financing the administrative and enforcement activities" associated with minimizing and ameliorating the deleterious secondary effects flowing from sexually oriented businesses. § 13-270(b). Courts have recognized that "an ordinance requiring a person to pay a license or permit fee before he can engage in a constitutionally protected activity does not violate the Constitution so long as the purpose of charging the fee is limited to defraying expenses incurred in furtherance of a legitimate state activity." E.g. , Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cty. ,
Additionally, in view of these recognized deleterious secondary effects, the Ordinance precludes the licensing of a sexually oriented business when individuals who *717are intimately tied to that business "have been convicted" of various criminal offenses. § 13-273(d)(3). Such offenses include crimes of "force and violence [used] upon ... another," of "sexual misconduct," or "involving narcotics, dangerous drugs or dangerous weapons that amount[ ] to a felony."
We next must determine whether the Ordinance's licensing provision is sufficiently narrowly tailored to satisfy intermediate scrutiny. The narrow-tailoring requirement "is met 'so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.' " Satellite Broad. ,
In assessing whether the licensing requirement "burden[s] substantially more speech than is necessary," Satellite Broad. ,
By contrast, American Entertainers' overbreadth challenge focuses on a licensing requirement, not a ban on speech.
But American Entertainers' overbreadth challenge does not focus on any particular burden attributable to Rocky Mount's licensing requirement for sexually oriented businesses. American Entertainers does not assert, for example, that the licensing requirement imposes an unconstitutional burden on the speech rights of "sexually oriented businesses" because the fee is too high, because obtaining the license is too administratively onerous, because it takes too long to obtain a license, or because there is no adequate judicial mechanism for timely reviewing a denial of an application for a license.
Rather, American Entertainers' overbreadth challenge appears to rest solely on the claim that subjecting some businesses to a licensing requirement-but not others-violates the First Amendment, at least when some of the businesses subject to the licensing requirement might provide a venue for performances that are not "specifically sexual in nature" or involve "traditional theater and other artistic presentations which may incorporate an erotic component." Appellant's Br. 17; see Oral Argument: Am. Entertainers, L.L.C. v. City of Rocky Mount, NC , 10:09-25 (Jan. 24, 2018) ("Q: So then are we only concerned just about the burden that's imposed by requiring this operational license? A: Yes, with a little explanation: My client is most concerned about the licensing features and the regulations on conduct."), http://coop.ca4.uscourts.gov/OAarchive/mp3/17-1577-20180124.mp3. To that end, American Entertainers asks this Court to closely parse the text of the Ordinance to determine whether venues that put on ballets, concerts, or theatrical productions-performances *719that might involve "fondling or other erotic touching"-would be subjected to the licensing requirement. Appellant's Br. 12-17. We decline that invitation.
American Entertainers' myopic focus on the Ordinance's definition of "sexually oriented business" misses the dispositive question: does the Ordinance's licensure requirement impose any substantial burden on First Amendment interests, such that the licensure is not narrowly tailored to serve the government's substantial interest in regulating the deleterious secondary effects of sexually oriented businesses? Answering that question, we conclude that regardless of whether the language of the Ordinance in fact sweeps in venues that display mainstream performances, the licensing requirement does not significantly burden the speech of either exotic-dancing establishments-like American Entertainers'-or venues that display mainstream performances that may involve "erotic touching"-like ballets, concerts, or theatrical productions-and therefore does not run afoul of the First Amendment.
"It is well established that the government may, under its police power, require licensing of various activities involving conduct protected by the [F]irst [A]mendment." Kev, Inc. ,
Here, American Entertainers makes no allegation that the license "would be difficult to obtain or would for some other reason discourage ... a prospective operator from exhibiting dancing."
*720Given that (1) the licensing requirement materially advances a substantial governmental interest and (2) American Entertainers identifies no burden imposed by the licensing requirement, we conclude that the licensing requirement is narrowly tailored to serve Rocky Mount's legitimate interest and therefore reject American Entertainers' overbreadth challenge.
B.
American Entertainers next argues that one of the Ordinance's six license-denial provisions, subsection (2)-which allows Rocky Mount's police chief to deny a permit if he determines that the proposed business would not comply with "all applicable laws," § 13-273(d)(2)-is an unconstitutional prior restraint because it "fail[s] to constrain ... review to building codes or other health and safety laws [and therefore] allows a permit to be denied for trivial or invented reasons at the discretion of the official." Appellant's Br. 8. Although mindful that Rocky Mount has a valid interest in ensuring compliance with all laws, we agree with American Entertainers that the denial provision vests impermissible discretion in the police chief to choose on a case-by-case basis which laws apply in reviewing a particular application and thus is too broad to survive constitutional scrutiny.
Licensing schemes preclude expression until certain requirements are met, and therefore are prior restraints. See FW/PBS, Inc. ,
There are "two evils that will not be tolerated in [licensing] schemes[:]" either (1) placing " 'unbridled discretion in the hands of a government official or agency," thus potentially "result[ing] in censorship,' " or (2) "fail[ing] to place limits on the time within which the decisionmaker must issue the license." FW/PBS, Inc. ,
In the present case, Rocky Mount argues that the police chief's licensing determinations are objective ones, drawn exclusively from an applicant's business proposal and the letter of the law. However, this overlooks the plain language of the license-denial provision at issue, which by its terms extends the police chief's inquiry to the entire body of municipal, state, federal, and common law.
Further, it is unrealistic to expect the police chief to consider the entire body of multiple jurisdictions' law within the Ordinance's fifteen-day time limit. Ordinance § 13-273(e). This subverts the core of Shuttleworth 's command that licensing standards be "narrow, objective, and definite,"
In sum, the relevant license-denial provision sweeps too broadly by requiring the police chief to choose on a case-by-case basis which particular laws to consider in evaluating applications. And even if the police chief somehow each time considered every law across all relevant jurisdictions, the sophisticated analysis inherent in various laws' application would require the police chief to exercise a constitutionally impermissible amount of discretion in evaluating applications. The provision therefore violates each of Shuttleworth 's commands by rendering the police chief's evaluation neither "narrow, [nor] objective, [nor] definite,"
Given our conclusion that the license-denial provision is an unconstitutional prior restraint, American further urges that the Ordinance as a whole must fall because the provision is not severable from the remainder of the Ordinance. However, the district court did not have an opportunity to address this issue in the first instance, and we therefore decline to do so now. See Chesapeake B & M, Inc. v. Harford Cty., Md. ,
Accordingly, we strike as unconstitutional section 13-273(d)(2) of the Ordinance and remand to the district court to determine whether and to what extent section 13-273(d)(2) is severable from the remainder of the Ordinance.
C.
American Entertainers' final argument is that subsection (6) of the Ordinance's permit-denial provisions-which applies when any business applicants or other specified business principals are under twenty-one years old-"infringes upon equal protection and the First Amendment rights of adult citizens to free expression." Appellant's Br. 44; Ordinance § 13-273(d)(6). We disagree.
As American Entertainers recognizes, "age is not a suspect classification under the Equal Protection Clause." Gregory v. Ashcroft ,
In attempting to ratchet up the level of constitutional review, American Entertainers *723analogizes to cases involving either the direct "disseminator" of a specific First-Amendment-protected communication, such as a movie theater or promoter seeking to present a theatrical production at a municipal facility, e.g. , Se. Promotions, Ltd. ,
Accordingly, we decline to recognize a First Amendment right for eighteen- to twenty-one year olds to own an adult business. Instead, the Ordinance's age-restriction provision warrants rational-basis review. Applying that standard, we conclude that the Ordinance's age restriction is rationally related to Rocky Mount's interest in ensuring that sexually-oriented-business owners are of legal drinking age, given alcohol's availability at most such venues. Cf. Williamson v. Lee Optical of Okla. Inc. ,
III.
In sum, we affirm the district court's award of judgment in favor of Rocky Mount regarding American Entertainers' overbreadth and age-restriction challenges. However, we vacate and remand for entry of judgment in favor of American Entertainers as to the district court's determination that section 13-273(d)(2) of the Ordinance does not constitute an unconstitutional prior restraint. On remand, the district court should further consider whether and to what extent section 13-273(d)(2) is severable from the remainder *724of the Ordinance. Accordingly, the judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
Below, American Entertainers challenged several other aspects of the Ordinance-a prohibition on touching between "adult entertainers" and patrons and a prohibition on providing "adult live entertainment" to only one customer-as well as an aspect of Rocky Mount's zoning ordinance that required 500 feet of space between (Continued) discrete adult establishments. In this Court, American Entertainers challenges only the licensing requirement.
Viewed within the appropriate constitutional framework, American Entertainers' argument perhaps best sounds as a vagueness challenge-that the Ordinance's definition of "adult cabaret" fails to give businesses "fair notice" as to what conduct triggers the licensing requirement. Papachristou v. City of Jacksonville ,
At oral argument, Rocky Mount confirmed that the Ordinance means "all laws" in the broadest sense possible. Rocky Mount explained that "[a]s soon as we start enumerating laws, what's going to happen? We're going to leave out one." Oral Argument: Am. Entertainers, L.L.C. v. City of Rocky Mount, NC , 29:13-18 (Jan. 24, 2018), http://coop.ca4.uscourts.gov/OAarchive/mp3/17-1577-20180124.mp3.
Concurring Opinion
I concur in Judge Wynn's opinion in this case. However, I write separately to address my colleagues' perplexing suggestion that the Ordinance's use of the phrase "fondling or erotic touching" may render the Ordinance applicable to nonsexual touching in mainstream artistic performances. See ante at 718-20.
We have previously held that the word "fondling," as used in a North Carolina statute prohibiting "fondling of the breasts, buttocks, anus, vulva, or genitals," has a particular meaning in the context of a law regulating sexually oriented businesses: "manipulation of specified erogenous zones." Giovani Carandola, Ltd. v. Fox ,
Further, in arguing that the word "touching" is overbroad, American Entertainers reads the word "erotic" out of the Ordinance entirely. The word "erotic" amplifies the meaning of the word "touching" in the Ordinance. Mere "touching" and "erotic touching" are not the same thing. "Erotic" means something. Specifically, it means "of, devoted to, or tending to arouse sexual love or desire." Erotic , Webster's Third New International Dictionary (2002). An action is "erotic" if it "tend[s] to incite sexual pleasure or desire" or is "directed toward sexual gratification."
Quite simply, "erotic touching," like "fondling," has a sexual connotation that is plainly not present in mainstream artistic performances. Dancers performing a lift during a ballet surely do not intend for their touching to incite sexual arousal in the manner contemplated by the Ordinance. The same is true for athletic endeavors such as wrestling, where participants often come into contact with intimate body parts. Indeed, if "erotic touching" includes as broad a description as American Entertainers ascribes to it, the sports world is in trouble. Given such an extensive reading, a sports arena may well be considered a sexually oriented business, considering, for example, players' frequent celebratory slaps on the buttocks.
Reference
- Full Case Name
- AMERICAN ENTERTAINERS, L.L.C., a North Carolina Limited Liability Company, D/B/A Gentleman's Playground, Plaintiff-Appellant, v. CITY OF ROCKY MOUNT, NORTH CAROLINA, Defendant-Appellee.
- Cited By
- 20 cases
- Status
- Published