PUBLISHED OPINION
Case No.: 94-1924
Complete Title
of Case:
FOND DU LAC COUNTY,
Plaintiff-Respondent,
v.
DONALD D. MENTZEL,
Defendant-Appellant.
Oral Argument: May 4, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 14, 1995
Opinion Filed: June 14, 1995
Source of APPEAL Appeal
from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If "Special", JUDGE: Steven W. Weinke
so indicate)
JUDGES: Anderson,
P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, there were briefs by Raymond M. Dall'Osto
and Kathryn A. Keppel. There was
oral argument by Raymond M. Dall'Osto.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, there was a brief and oral argument by Kathryn
J. Haupt, corporation counsel.
COURT OF APPEALS DECISION DATED AND RELEASED June 14, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-1924
STATE
OF WISCONSIN IN COURT OF
APPEALS
FOND DU LAC COUNTY,
Plaintiff-Respondent,
v.
DONALD D. MENTZEL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Reversed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
BROWN, J. Fond
du Lac County has an ordinance requiring entertainers at Class B liquor
establishments and dance halls to wear a minimal amount of clothing during
performances, such as g-strings and pasties.
We decide that although the ordinance is not unconstitutional as applied
to Donald D. Mentzel, the owner of a Fond du Lac exotic nightclub, it is
facially unconstitutional under the overbreadth doctrine because it encompasses
nude expression which is not associated with harmful secondary effects. We reverse.
Mentzel's nightclub
features entertainment consisting of nude and semi-nude female exotic
dancing. His operation, however, has
run afoul of a Fond du Lac County ordinance that requires Class B liquor
license holders to obtain a cabaret permit before providing any form of dance
entertainment. The ordinance forbids
nudity, among other things, as a condition to using the permit. The pertinent text of the ordinance is set
forth below.[1]
Mentzel was cited for
violating this ordinance on three separate occasions. The trial court rejected several constitutional arguments raised
by Mentzel and found him guilty of violating this licensing requirement. He now asserts that the County's regulatory
scheme is vague and overbroad, and that it violates equal protection principles
because this same type of entertainment is permitted in the City of Fond du
Lac.
The general analysis
used when testing the constitutional validity of a statute is set forth in State
v. Mitchell, 163 Wis.2d 652, 658, 473 N.W.2d 1, 3 (Ct. App. 1991), aff'd,
178 Wis.2d 597, 504 N.W.2d 610 (1993).
Although a defendant normally bears the burden of establishing beyond a
reasonable doubt that a statute is unconstitutional, because the ordinance at
issue regulates the exercise of First Amendment rights, the burden is shifted
to the government. Id. Although Mentzel comingles his three
specific constitutional challenges into a single argument, his briefs and oral
argument claims can be distilled to reveal the following basic assertions.
VAGUENESS
Mentzel claims that the
ordinance is unconstitutionally vague as applied to him because it does not
clearly and unequivocally state that liquor establishments may not have nude
dancing. He also notes that discussions
with police and planning officials, as well as his own attorney, suggested to
him that the statute could be interpreted several ways, but arguably would
allow nude dancing provided that no alcohol is served at the establishment.
The two-prong test for
vagueness assesses whether: (1) the
ordinance is sufficiently definite to give persons of ordinary intelligence who
seek to avoid its penalties fair notice of the conduct required or prohibited;
and (2) the ordinance provides standards for those who enforce the laws and
adjudicate guilt. State v. McManus,
152 Wis.2d 113, 135, 447 N.W.2d 654, 662 (1989).
Setting aside his
ruminations about how the ordinance could be interpreted, Mentzel fails to
articulate how these standards are not met.
Whether Mentzel was violating the provisions of the ordinance which
specify the amount of clothing that the dancers must wear is completely
irrelevant to his conviction. The
statutory language is plain and simple.
It requires that any Class B liquor license holder providing any
form of dancing entertainment must also obtain a cabaret license. The relevant section specifically provides:
License required No holder of a class ‘B’ liquor, beer
license, or dance hall within the unincorporated area of Fond du Lac County
shall afford to their patrons:
entertainment which specifically features or advertises dancing by the
performance of any act, stunt or dance by performers under the auspices of the
management, whether such dancers are paid or not unless the owner shall first
have obtained a Cabaret License from the County Clerk.
Fond du Lac County, Wis., Cabaret Ordinance
§ 1 (May 16, 1989). Even a cursory
scan reveals how it entails a strict liability forfeiture with four
elements: (1) whether the defendant is
a Class B liquor license holder; (2) whether the holder has management control;
(3) whether entertainment was provided; (4) whether management had a cabaret
license. Mentzel was in possession of a
Class B license, and the facility he operated featured dancing entertainment. There can be no legitimate debate that he
featured the dancing entertainment even though he tried and was unable to
obtain a license from the County.
Mentzel argues that he attempted to get a license, but that the County
summarily denied him that opportunity.
His remedy was not to forge ahead and feature nude dancing in any
event. His proper remedy was to appeal
the denial of the permit on grounds that the denial was arbitrary, capricious
and denied him due process. He did not
do so. He cannot now come to this court
and complain. We conclude that
Mentzel's arguments about the ordinance's various interpretations are not
relevant.[2]
OVERBREADTH
This line of inquiry is
analytically distinguishable from vagueness.
Overbreadth challenges seek to prevent government from promulgating
sweeping regulations that touch upon constitutionally protected conduct. There is an underlying concern that if such
regulations go unchecked, citizens will be deterred from exercising their
various rights, the so-called chilling effect.
See Mitchell, 163 Wis.2d at 663, 473 N.W.2d at
5. See also NAACP v. Button,
371 U.S. 415, 432 (1963). Given the
rationale supporting application of this constitutional test, challengers need
not limit their attack to arguments based on their own activities. They may also make use of hypotheticals to
demonstrate how the challenged ordinance or statute could impede the rights of
other citizens. Mitchell,
163 Wis.2d at 663, 473 N.W.2d at 5.
The United States
Supreme Court's most recent analysis of the First Amendment issues implicated
in nude dancing was set forth in Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991). There, the Court
faced a claim that an Indiana statute prohibiting public nudity violated the
First Amendment rights of owners of exotic clubs and professional exotic
dancers. Id. at
562-63. Eight Justices concluded that
nude dancing is expressive conduct and thus is entitled to constitutional
protection. See id.
at 565-66 (opinion of Rehnquist, C.J.) (joined by O'Connor and Kennedy, JJ.)
(concluding “only marginally so”); id. at 581 (Souter, J.,
concurring) (concluding that nude dancing “is subject to a degree of First
Amendment protection”); see id. at 587 (White, J.,
dissenting) (joined by Marshall, Blackmun and Stevens, JJ.); but see
id. at 572 (Scalia, J., concurring) (concluding that nude dancing
“is not subject to First-Amendment scrutiny at all”).
The decision, however,
was splintered on the issue of how government may reasonably regulate these
protected expressions.[3] The plurality, led by Chief Justice
Rehnquist and Justice Souter in a concurring opinion, agreed that a “time,
place and manner” analysis would be appropriate for assessing the legitimacy of
state regulatory efforts in this arena.
Id. at 566, 582.
Both Chief Justice Rehnquist's opinion and Justice Souter's opinion
applied the four-part test announced in United States v. O'Brien,
391 U.S. 367 (1968), which acknowledges that government may infringe upon the
First Amendment freedoms in its effort to regulate certain conduct
provided: (1) the targeted conduct
falls within the domain of state regulatory power; (2) the statutory scheme
furthers an important or substantial interest; (3) the state's regulatory
efforts are unrelated to the suppression of free expression; and (4) the
regulations are narrowly tailored. See
Barnes, 501 U.S. at 566-67 (quoting O'Brien, 391
U.S. at 376-77).
The disagreement among
the plurality in Barnes focused on the second and third
prongs. Chief Justice Rehnquist and two
other members of the plurality believed that a state's interest in promoting
“morality” was a legitimate reason to suppress First Amendment rights. Id. at 568. Justice Souter's conclusion was
narrower. He wrote that the states had
a legitimate interest in regulating the “secondary effects” of adult
entertainment. Id. at 582
(Souter, J., concurring). Secondary
effects are defined by example, such as increased criminal activity and
prostitution. Id. Justice Souter reasoned that these concerns
justify state infringement upon the protected expression associated with nude
dancing. Id. at 582-83.
Having visited at length
the holding of the Court in Barnes, the next task for this court
is to determine how we analyze the Fond du Lac ordinance in light of Barnes. If we follow Chief Justice Rehnquist's lead
opinion, we review the Fond du Lac ordinance from the point of view that
government can curtail nude dancing for reasons of morality. If we follow Justice Souter's opinion, then
the proper question to ask is whether the ordinance is narrowly tailored to
address the secondary effects of adult entertainment.
Simply because Chief
Justice Rehnquist wrote the lead opinion in Barnes does not make
it the law of the land. Barnes
engendered four separate opinions, none of which commanded a majority of the
justices. As pointed out by the court
in Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 133 (6th
Cir. 1994), Chief Justice Rehnquist's attempt to win acceptance for the
proposition that the enforcement of morality is a proper basis for limiting
freedom of speech did not win majority support. Only Justices O'Connor and Kennedy joined the Rehnquist
opinion. While Justice Souter agreed with
Chief Justice Rehnquist in the ultimate result of the case, he identified material
harms, not moral concerns, as the basis for restricting First Amendment
protection for expressive conduct. Id. When lower courts are faced with fractured
decisions of the United States Supreme Court, the Court has decreed the use of
what is known as the “Marks Rule.” This
rule, taken from Marks v. United States, 430 U.S. 188, 193
(1977), holds that when the Court issues a fractured plurality decision, the
opinion of the Justice concurring in the judgment on the “narrowest grounds”
should be regarded as the Court's holding.
Applying the “Marks
Rule,” we conclude, as did the Sixth Circuit in Triplett Grille,
that Justice Souter's concurring opinion offers the narrowest ground. This is so because the narrowest ground is
found when a concurring opinion articulates a legal standard with which a
majority of the court from that case would agree. We agree with the court in Triplett Grille that as
a logical consequence of their approval of morality justifications for
regulations of speech, Chief Justice Rehnquist, Justice O'Connor and Justice
Kennedy implicitly agree with Justice Souter that governmental efforts to
control the harmful secondary effects associated with adult entertainment can
serve as a basis for restricting activities that enjoy First Amendment
protection. Triplett Grille,
40 F.3d at 134. We will apply Justice
Souter's reasoning in reviewing the Fond du Lac County ordinance regarding the
overbreadth issue.[4]
For purposes of the
overbreadth challenge then, the question is whether the ordinance is targeted
at only curbing the harmful secondary effects associated with exotic clubs or
whether other expressive conduct which does not create harmful secondary
effects needlessly falls into its net.
A plain reading of the ordinance reveals that many other forms of
unclothed entertainment that do not effectuate secondary concerns would be
subject to the ordinance. See Barnes,
501 U.S. at 585 n.2 (Souter, J., concurring);
Triplett Grille, 40 F.3d at 136 (recognizing that musical
production of Hair would be prohibited under the challenged ordinance). As conceded by the County, a modern dance
performed by members of the New York City Ballet, of which nude dance is a
part, would be prohibited by the ordinance if offered in a venue that had
liquor on the premises, such as a dinner theatre. Yet the County cannot point to any harmful secondary effects
emanating from such a performance, such as prostitution or criminal
activity. The ordinance is simply too
broad. It takes in not only Mentzel's
nightclub dancing (which in our opinion it has the right to do) but forms of
expression that are not associated with harmful secondary effects. We must underscore that whether certain
members of the Fond du Lac community may believe, for instance, that a male
erotic dance by a ballet company performing Diaghilev's L'apres midi d'un
faune (1912) is immoral is not grounds for prohibition by the County. See Miller v. Civil City of
South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (Posner, J.,
concurring), rev'd sub nom. Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991).
It is not our job to
tailor the ordinance so that it passes constitutional muster. Nonetheless, we are convinced that the
County can undoubtedly promulgate an ordinance to curtail and even prohibit the
operation of totally nude exotic dance clubs.
It simply needs to craft an ordinance which is tailored towards
mitigating the harmful secondary effects arising from these
establishments. For example, the
ordinance could better distinguish between bars and dance halls.[5] Moreover, since nude artistic events that
this ordinance could curtail would not normally be associated with harmful
secondary effects, the better drafted ordinance would recognize this
distinction.[6] And, the County may wish to better assess
what geographic areas are not suitable for these establishments. See City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 54 (1986).[7] The ordinance could also embody a more
formalized licensing and administrative appeals process. See Redner v. Dean, 29
F.3d 1495, 1501 (11th Cir. 1994) (requiring specified time limits on government
licensing process), cert. denied, 115 S. Ct. 1697 (1995).
Before leaving the
overbreadth subject, we observe that just as the Triplett Grille
court was “loathe to find that the Akron public decency statute violates the
First Amendment,” we feel likewise about the County's cabaret ordinance. See Triplett Grille, 40
F.3d at 136. However, like the court in
Triplet Grille, we are unable to save the ordinance. Under the rules of overbreadth, Mentzel will
avoid this forfeiture not because he retains First Amendment protection from
the ordinance, but because others do.[8]
EQUAL PROTECTION
In the interests of
completeness, we will briefly address Mentzel's equal protection argument. Mentzel attacks the regulatory disparity
between the unincorporated and incorporated areas of Fond du Lac County; exotic
clubs of the type he would like to operate are permitted in some areas but not
in others. However, as we have already
suggested, the County, and all the jurisdictions within the County, may each
use their police power to limit the geographic areas in which these activities
may take place. Thus, the discrepancies
that Mentzel complains about are the natural result of any type of systematic
zoning. That these various plans
have incidental effects on the protected expression occurring in these
facilities does not create any constitutional concerns.
By the Court.—Judgment
reversed.
CABARET
LICENSE
(Entertainment
Featuring Dancing)
1. License required. No holder of a
class ‘B’ liquor, beer license, or dance hall within the unincorporated area of
Fond du Lac County shall afford to their patrons: entertainment which specifically features or advertises dancing
by the performance of any act, stunt or dance by performers under the auspices
of the management, whether such dancers are paid or not unless the owner shall
first have obtained a Cabaret License from the County Clerk.
(a) This section all (sic) not apply to holders
of temporary class ‘B’ licenses.
2. Regular License. An application for a license is to be made
to the County Clerk. The County Clerk
shall then notify the Town or Village wherein the proposed license is to be
held, publish a class ‘1’ notice of such application and have the license
application referred to the PPP Committee of the Fond du Lac County Board of
Supervisors within 30 days of application.
The PPP Committee can take any testimony regarding the granting or
denial of such license.
¼.
4. Special Event License: A holder of a class ‘B’ liquor, beer or
dance hall license within the unincorporated area of the county may apply for a
special event cabaret license in lieu of obtaining a regular cabaret
license. Such license will only be
valid for a twenty-four (24) hour period.
¼.
5. Regulations: No dancing shall be permitted by any
performers under the auspices of the management whether paid or not, within
three (3) feet of a bar over which patrons are directly served, while so
entertaining the patrons.
(b) While dancing is in progress, the dance area
shall be illuminated by at least two (2) foot candles per square foot.
¼.
(h) The performance of any dance by performers
under the auspices of the management shall be given only on a raised portion of
the floor separated by a railing or other device from the patrons so as to
deter patrons from participating in the dance.
(i) Lewd and indecent performance. No license holder personally or through an
agent or employee shall advertise or produce lewd, obscene or indecent
performances.
(j) It is forbidden by this ordinance to perform
acts or simulated acts of “sexual” intercourse, masturbation, sodomy,
beastiality, oral copulation, flagellation, or any sexual acts which are
prohibited by law, on the premises so licensed.
(k) The actual or simulated touching, carressing
[sic] or fondling of the breasts, buttocks, anus or genitals is prohibited.
(l) The actual or simulated displaying of pubic
hair, anus, vulva or gentials is prohibited.
(m) The permitting by a licensee, agent or
employee of licensee, of any person to remain in or upon the licensed premises
who exposes to public view any portion of his or her gentitals or anus is
prohibited.
(n) The displaying of films or pictures
depicting acts, a live performance which is prohibited by the regulations
quoted above is forbidden.
(o) The dancers must wear clothes or costumes
which shall at a minimum consist of the following: be of non-transparent material, the top portion of the costume
worn by females must completely cover the areola of the breast and the lower
portion of the costume worn by both male and female dancers must completely
cover the pubic area and cleavage of the buttocks
Fond du Lac County, Wis., Cabaret Ordinance § 1 (May 16, 1989).
[2] Mentzel also raises an objection to the burden of proof applied by the trial court. He asserts that the court erred because it did not find clear and convincing evidence to support his conviction. As our analysis reveals, however, the County's ordinance is couched in its general regulatory powers; it is not related to any criminal sanction. Thus, the trial court was correct in applying the preponderance standard. See City of Milwaukee v. Wilson, 96 Wis.2d 11, 21-23, 291 N.W.2d 452, 458-59 (1980). We acknowledge, however, our interest in the issue. As Mentzel pointed out in his briefs, the burden of proof in municipal court is the middle burden. See § 800.08(3), Stats. If Fond du Lac had a municipal court, which it does not, there is a distinct possibility that this action would have been brought in the municipal court rather than the trial court. In that hypothetical instance, the middle burden would no doubt have applied. But since Mentzel has made no direct argument that the County's regulatory scheme denies him equal protection and, moreover, makes no argument respecting § 800.08(3) at all, we will not decide the issue.
[3] For a detailed and artful analysis of why nude dancing should be a constitutionally protected expression, see Miller v. Civil City of South Bend, 904 F.2d 1081, 1089-1104 (7th Cir. 1990) (Posner, J., concurring), rev'd sub nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
[4] We note that, at oral argument, the County agreed that Justice Souter's concurring opinion presented the “narrowest grounds” and that we should follow his reasoning in assessing the ordinance.
[5] In California v. LaRue, 409 U.S. 109, 115 (1972) and other cases cited by the County, courts have recognized that the Twenty-first Amendment affords local government more police power to proscribe this type of conduct when it is associated with the service of alcoholic beverages.
[6] For example, the City of Milwaukee exempts ballet organizations from the general permitting requirements for dance halls and taverns. City of Milwaukee, Wis., Code § 108‑2.2 (1989).
[7]
In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), the Court upheld an ordinance prohibiting similar adult enterprises
from locating within 1000 feet of a residential zone, school, park or
church. Justice Rehnquist concluded:
In sum, we find that the Renton ordinance represents a valid
governmental response to the “admittedly serious problems” created by adult
theaters. Renton has not used “the power
to zone as a pretext for suppressing expression,” but rather has sought to make
some areas available for adult theaters and their patrons, while at the same
time preserving the quality of life in the community at large by preventing
those theaters from locating in other areas.
This, after all, is the essence of zoning. Here, as in American Mini Theatres, the city has enacted a zoning
ordinance that meets these goals while also satisfying the dictates of the
First Amendment.
Id. at 54-55 (quoting Young v. American Mini Theatres, 427 U.S. 50 (1976) (citations omitted)).
[8] This is what distinguishes this case from Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). In Barnes, there was no overbreadth challenge. At oral argument, the County argued that just as the United States Supreme Court was able to uphold the Indiana statute at issue in that case, we should be able to do the same. However, overbreadth broadens the challenge.