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Snyder, Law Office of Brock R. This is an action brought by the plaintiffs, pursuant to 42 U. The case was tried to the court on January The court, having heard the evidence and reviewed the briefs of the parties, makes the following findings of fact and conclusions of law.
The primary business of the club is the sale of alcoholic beverages. Entertainment is provided at the club by women such as the individual plaintiffs who perform erotic dancing for club patrons. The dancers perform two types of erotic dances: one type of dance is performed on a stage in front of all the club patrons a "stage dance"and the other type at the patron's table a "table dance" or "lap dance".
The latter involves the performer dancing on or near the lap of a seated patron, and typically the dancer straddles the patron's legs or sits on his lap, permitting the patron to fondle her as she dances. Prior to the enactment of the resolution at issue in this case, usually each dancer would begin a lap or table dance attired in a bikini top and thong bottom.
If the customer was responsive i. The dancers permitted table or lap dance customers to fondle their buttocks and touch and kiss their breasts. The only compensation the women receive for their work is tips. The dancers report that their income from tips has decreased since enactment of the resolution. Prior to the enactment of the resolution, undercover law enforcement officers at the Bonita Flats Saloon had observed criminal activity at the club, including drug deals, assaults and batteries, and inappropriate conduct during table dances, such as dancers touching the crotches of male patrons and crotch to crotch contact between dancers and their patrons.
Sheriff's officers testified that the club was a law enforcement concern because of the of calls from the club, often involving assault and battery, in most cases severe, and occasionally involving doormen at the club. In earlythe Johnson County Board of Commissioners the "Board" started receiving complaints about the two existing nude dance clubs in unincorporated Johnson County, the Bonita Flats Saloon and the Platinum Club, from residents of the area around the clubs. The neighbors' complaints included at least one incident of a patron urinating in the parking lot outside the club, club patrons shouting obscenities to passersby, damage to fences, gates, and other property, and drunk drivers on the ro.
Neighbors also told the Board that men leaving the club would follow them in their cars; this was of particular concern to the women who lived in the area because they were most often the ones followed. About the time these complaints were being received, the Board was advised that someone in the Kansas City area had expressed interest to the Johnson County Planning Department in opening a new nude dancing club near Bonita Flats and the Platinum Club.
The District Attorney and Sheriff agreed with the Board that there needed to be some regulation, especially since most area municipalities had already enacted regulations pertaining to this type of activity, and absent some action, unincorporated Johnson County could become a "safe haven" for nude dancing clubs.
The Board was aware of problems associated with similar clubs elsewhere in the Kansas City area because of the attention these clubs were receiving in the media and from local law enforcement authorities. The Board was particularly concerned about public health and safety and the secondary effects e.
The Board was also made aware of studies that had been conducted in other urban areas pertaining to the secondary effects of topless or nude dancing and other forms of so-called "adult entertainment"; the Board viewed these studies as further evidence that regulations were needed. The Board was also mindful that the area is still developing and needs careful zoning in connection with that growth. Prior to passage of the resolution, the subject was discussed at public meetings of the Board, which were attended by representatives of the plaintiffs and area property owners.
At these meetings, area property owners raised some of the same concerns detailed above. On August 6,the Board adopted Resolutions andwhich together comprise the "Adult Entertainment Code. Resolution is a zoning statute and is not relevant to this case. In this opinion, the court will refer to as simply "the resolution. Johnson County Sheriff Allenbrand testified that he understood the resolution and did not anticipate trouble enforcing it. Captain Lewis Hoskins of the Sheriff's Office testified that he had read and understood the resolution and would have no trouble instructing the deputies on what conduct would or would not constitute a violation.
Even Jim Baird, manager of the Bonita Flats Saloon, admitted on cross-examination that he understood the terms of the resolution well enough to give the dancers specific instructions on what they were required to wear and what activities were prohibited.
The issue presented by this case is whether the Johnson County resolution is unconstitutional on its face. Plaintiffs challenge the constitutionality of the resolution, claiming it violates their First and Fourteenth Amendment rights. Plaintiffs also contend the resolution is unconstitutionally vague and overbroad. In California v. LaRuethe United States Supreme Court considered a constitutional challenge to a California administrative regulation very similar to the resolution at issue in this case.
See California v. LaRue, U. Like the Johnson County resolution, the California regulation prohibited full nudity, touching or fondling of the breast, buttocks, anus, or genitals, and proscribed the performance or simulation of certain enumerated sex acts. The plaintiffs in LaRue argued that the regulation unconstitutionally abridged the freedom of expression guaranteed to them by the First and Fourteenth Amendments of the United States Constitution.
The Supreme Court began its analysis by noting that the challenged regulations came to the Court in the context of licensing bars and nightclubs to sell liquor by the drink. Therefore, the starting point for the Court's analysis was the Twenty-first Amendment, which provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
The state has considerable power under the Twenty-first Amendment:. The Court acknowledged that the California regulation would prohibit some forms of expression protected by the Constitution. Nevertheless, the Court found that the law was constitutional because California had not forbidden such conduct across the board, but only in establishments d to sell liquor by the drink. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.
Bellanca, U. In that case, the State of New York had amended its alcohol control laws to prohibit nude dancing in establishments d to sell liquor for on-premises consumption.
The plaintiffs argued that the law was a violation of their First Amendment rights. The Supreme Court picked up the theme from LaRue, opening its analysis with an observation that the Court "has long recognized that a State has absolute power under the Twenty-first Amendment to prohibit totally the sale of liquor within its boundaries. It is equally well established that a State has broad power under the Twenty-first Amendment to regulate the times, places, and circumstances under which liquor may be sold. The Court observed that the elected representatives of the State of New York had "chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption.
Salem Inn, Inc. The Supreme Court again faced this issue in City of Newport v. Iacobucci, U. In Iacobucci, plaintiffs challenged a Newport, Kentucky, ordinance prohibiting nude or nearly nude dancing in local establishments d to sell liquor for consumption on the premises.
Plaintiffs asserted that the ordinance deprived them of their rights under the First and Fourteenth Amendments. The district court upheld the ordinance as falling squarely within the doctrine of Bellanca. The Supreme Court affirmed, and in doing so, reaffirmed its holdings in LaRue and Bellanca that the broad power of the States to regulate the sale of liquor outweighed any First Amendment interest in nude dancing, and that a State could therefore ban such dancing as a part of its liquor program.
The Court noted that the Newport City Commission, in the preamble to the ordinance, had determined that nude dancing was "injurious to citizens" of the city, and that the ordinance served a broad range of purposes, including "prevent[ing] urban blight and the deterioration of the City's neighborhoods" and "decreas[ing] the incidence of crime, disorderly conduct and juvenile delinquency.
The Court held that the city's interest in maintaining order outweighed the interest in free expression by nude dancing. As illustrated by the foregoing decisions, the Supreme Court has consistently held that the States have authority under the Twenty-first Amendment to enact laws which prohibit nude or partially nude dancing in establishments d to sell liquor.
Accordingly, the court must rule that the Johnson County resolution does not violate the United States Constitution. The elected officials of Johnson County have chosen to avoid the problems associated with mixing alcohol and nude dancing, including the other proscribed sexual activities, by means of reasonable restrictions upon establishments that are d to sell alcohol for on-premises consumption.
Although some may quarrel with the wisdom of such legislation and may consider nude dancing and the other prohibited conduct harmless diversions, the Twenty-first Amendment makes that a policy judgment for elected officials, and not the courts. See Bellanca, U. The court does not agree with plaintiffs' assessment of the resolution as being unconstitutionally vague. The resolution is not so vague that "[people] of common intelligence must necessarily guess at its meaning.
Oklahoma, U. The resolution gives adequate warning of what activities it proscribes and sets out explicit standards for those who must enforce it. See id. National Assoc. What the Supreme Court said about the Oklahoma statute at issue in Broadrick is equally true of the Johnson County resolution in the instant case: "Although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.
Likewise, the court does not share the plaintiffs' view that the Johnson County resolution is unconstitutionally overbroad. The overbreadth doctrine allows litigants to challenge a statute not because their own rights have been violated, but on the grounds that the statute's very existence may cause others to refrain from constitutionally protected speech or expression.
Broadrick, U. But even then, "[a]pplication of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. In Geaneas v. Willets, F. The ordinance in question was similar to the Johnson County resolution, in that it prohibited the exposure of certain parts of the body and also the performance or simulation of particular enumerated sex acts in any establishment selling alcoholic beverages.
The court found that the overbreadth doctrine did not apply:. This reasoning applies to the plaintiffs' overbreadth challenge in the instant case. The mere fact that one can conceive of some impermissible applications of the resolution is not sufficient to render it susceptible to an overbreadth challenge.
Members of the City Council v.
Taxpayers for Vincent, U. Accordingly, the court must reject the plaintiffs' contention that the Johnson County resolution is overbroad. Finally, the court has considered defendants' request for attorney's fees pursuant to 42 U. Defendants' request for attorney's fees is denied. A regular meeting of the Board of County Commissioners of Johnson County, Kansas was held on Thursday, August 6,with the following members being present and participating, to-wit:. WHEREUPON, there came before the Board for consideration the matter of adopting a Resolution enacting regulations for business enterprises which serve alcoholic beverages or cereal malt beverages for consumption on the premises, prohibiting nudity and sexual performances or conduct on the premises, and regulating certain types of conduct within the business establishments.
The Board, after thorough discussion and study, upon a motion duly made, seconded and carried, adopted the following Resolution, to-wit:. WHEREAS, the Board of County Commissioners, as the governing body for Johnson County, Kansas, has the authority and responsibility to legislate on areas of local concern for the protection of the public health, safety and welfare; and. WHEREAS, the Board and County officials have reviewed studies related to the affects and secondary impacts of various types of business establishments; and.
WHEREAS, the Board has found and determined that business establishments which have or provide adult, sexually-oriented entertainment can and do foster or promote incidents of criminal activity, can and do contribute to urban decay and blight, and do create direct exposures to health risks and potential health hazards; and. WHEREAS, the Board has determined that the regulation of adult, sexually-oriented entertainment businesses in the unincorporated area of Johnson County, Kansas will best serve the public interest and is necessary and advisable for the protection of the public health, safety and welfare.
The Board of County Commissioners, as the governing body of Johnson County, Kansas, has the authority and responsibility to legislate on matters of local concern for the protection of the public health, safety and welfare. Those cities have experienced the direct and secondary impacts related to conduct occurring at business establishments which provide adult, sexually-oriented entertainment. Business establishments which serve alcoholic or cereal malt beverages for consumption on the premises are themselves subject to separate and particular regulation due to the affects of consumption of intoxicating beverages.
Conduct at and within those establishments merits appropriate regulation to prevent health risks, to preserve safety, and to minimize criminal activities.
Nudity and sexual performances may be acceptable conduct and entertainment in certain situations and non-public venues. It is not the intent of this Chapter to inhibit the free expression of any art or speech nor to suppress any speech activities protected by the First Amendment of the Constitution. On the other hand, it is not the intent of the County to condone or legitimize any obscene acts or materials or any illicit or illegal conduct or activity.
The intent of this Code is to adopt a content neutral regulation addressing the secondary effects of sexually oriented businesses. This Chapter is intended to prevent the spread of disease, to promote sanitary health conditions, to prevent opportunities for criminal activity, to preserve property values, and to promote the public morals and welfare.
This Chapter shall apply from and after its effective date to all persons and all property located within the unincorporated area of Johnson County, Kansas and shall be applicable to any business establishment, whether d or not, now located or hereafter locating within or upon any property located in the unincorporated area of Johnson County, Kansas, which serves alcoholic beverages or cereal malt beverages for consumption on the premises, and to any operator of or entertainer for any such establishment.
This Chapter shall be and become effective upon its adoption by the Board of County Commissioners and its publication in the official newspaper of the County. As used in this Chapter, unless the context otherwise requires, the following words or phrases shall have the meaning and be defined as provided in this Article.Bonita flats saloon
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Dodger's Bar & Grill v. JOHNSON COUNTY COM'RS, F. Supp. (D. Kan. )