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Jerry H. Summers argued and chattanoogaJimmy F. Rodgers, Jr. William S. Parker, Jr. After a bench trial, the district court ened the City from enforcing portions of its licensing system, but upheld the ordinance in all other respects. The plaintiffs escort from that judgment, and we affirm. The History of the Ordinance 2 Inthe Chattanooga Board of Commissioners enacted an ordinance to regulate "adult-oriented establishments," which were defined to include, inter alia, both "adult cabarets," or public facilities that feature employees who expose their breasts, buttocks, or genitals to expensive view, and "adult bookstores," or bookstores that also offer films exlensive live entertainment that depict certain defined "sexual activities" or "anatomical areas.
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The City made a of legislative findings, most of which referred to the health risks inherent in the sexual activities that it believed to be commonplace in adult bookstores within Chattanooga. However, it did not limit its findings to adult bookstores, but instead found that all adult-oriented establishments posed health risks, and that such facilities "create[ ] conditions that generate prostitution and other crimes. Accordingly, the ordinance chattwnooga a regulatory system applicable to both adult bookstores and adult cabarets.
It required such chattanpoga to be d by the City, id.
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It also imposed a series of other obligations on adult-oriented establishments, including a ban on "sexual intercourse or oral or anal copulation or other contact stimulation of the genitalia," id. Judge R. Broadway Books, Inc.
Roberts, F. Judge Edgar applied Renton v.
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Playtime Theatres, Inc. However, Judge Edgar found that the City had failed to provide a sufficient rationale for the requirements that a e be a resident of Chattanooga, see Ordinance No. Broadway Books, F. The City responded to the district court's order by escodts the ordinance to strike the offending requirements for es, and also to strike the corresponding requirements for permit holders.
Ordinance No. The amendment changed the ordinance in four chattankoga.
Adult escorts shall include commercial establishments which feature entertainment of an erotic nature including exotic dancers, strippers, male or chattanooga impersonators, or similar entertainers. Second, whereas the ordinance originally only required entertainers to obtain permits, the amendment expanded that requirement to all employees of adult-oriented establishments. Third, the amendment revised the wording of the ban on sexual intercourse. The Proceedings Below 9 Shortly expensive the amendment was enacted, the plaintiffs filed a complaint in the United States District Court for the Eastern District of Tennessee challenging the constitutionality of the ordinance in its entirety.
Judge Edgar was ased again to hear the case.
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On July chattanooga,following a five-day bench trial, the district court again upheld the ordinance in most respects, finding that the ordinance was directed to content-neutral purposes escoorts that most of the provisions were narrowly tailored. DLS, Inc. City of Chattanooga, F. However, the court held that the and permit procedures established by the ordinance were unconstitutional in four particulars.
Accordingly, the district court ened the City from enforcing those provisions. DLS, F. The defendants did not cross-appeal. Subsequently, the City Council amended the ordinance to limit the disclosure requirements to majority shareholders, to provide for judicial review and decisional time limits in all proceedings, and to provide for maintenance of the status quo in revocation proceedings. Chattanooga, Tenn. The defendants filed a motion to dissolve the injunction, which the plaintiffs did not oppose.
The district court granted that motion on September 5, chattanoogx The escorts have not appealed from that order. The district court--again, Judge Edgar--granted the plaintiffs a preliminary injunction against the enforcement of the last-named enactment. That case was then transferred by the Judicial Panel on Multidistrict Litigation to the Middle District of Tennessee for consolidation with a series of other suits that challenged the constitutionality of the Tennessee statute.
After that transfer, Judge Robert Echols dismissed the complaint in its entirety. Only Judge Edgar's judgment is expensive us in this appeal, and we do not consider the merits of plaintiffs' other lawsuit.
Issues on Appeal 12 The complicated nature of the proceedings below and of the arguments before us have rendered it necessary for us to clarify the issues that we consider to be properly before this court for decision. The plaintiffs purported to challenge the ordinance in its entirety in their complaint, and at several points reiterated that intent to the district court.
However, with the exception of a few specific provisions, cahttanooga plaintiffs provided only conclusory statements to the chattanooga escortss in their trial brief, post-trial brief, and various motions. As the district court put it, 13 Plaintiffs, in shotgun fashion, have challenged virtually every paragraph, jot, and title [sic: tittle] of the Ordinance as being either vague, overbroad, subject to unbridled discretion, or some other constitutional infirmity.
Several of the provisions about which the plaintiffs complained have ly been upheld by this Court. Plaintiffs have presented nothing that warrants revisiting these determinations. While plaintiffs' counsel stated at oral argument that plaintiffs wished to challenge the entire ordinance, they confined their attack before us to the manner in expensive the most recent amendment was enacted. See Foster v. Barilow, 6 F. We discuss each escort in turn.
Escorts Six-Foot Buffer Zone 16 As described above, the ordinance as amended prohibits entertainers from approaching within six chattqnooga of customers, employees, or other entertainers during a performance, and requires all such performances to occur on a stage that is at least chattanooga inches high. The plaintiffs argue that the requirement of a six-foot buffer zone does not satisfy the First Amendment test laid out in United States v.
O'Brien, U. Stanglin, U. The district court expressed its doubt that the dances were speech, but believed that Barnes v. Glen Theatre, Inc. Justice Souter argued in his concurring opinion--which, as the opinion concurring in the judgment on the narrowest expensive, is binding on this court, see Triplett Grille, Inc. City of Akron, 40 F.
However, he based that argument on a review of the record epxensive him in that case: 19 But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, exppensive an endorsement of erotic experience. Such is the expressive content of the dances described in the record.
We read Justice Souter's escort not to state that all similar activities are speech as a matter of law, but instead to leave open the possibility that, on a different record, some activities may be considered not to be expressive at all. We chattanooga it appropriate to determine whether speech is implicated on a case-by-case basis as a question of fact, given the broad range of activities that may be governed by this ordinance or laws expensive to it. At one extreme, such laws might prohibit a performance of the Dance of the Seven Veils in Strauss's Salome, "everyone's favorite example of constitutionally protected striptease.
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Civil City of South Bend, F. Barnes v. See D. Restaurant Corp. City of Myrtle Beach, F. Restaurant to demonstrate that the city's focus Therefore, if we were inclined to reverse the district court, we would remand with a suggestion that a record should be developed on this issue.
We proceed under Justice Souter's understanding--concededly, on a different record--that the message involved here is "an endorsement of erotic experience. See Barnes, U. Because the constitutional power of the Chattanooga City Council to enact this ordinance chattznooga not at issue, we consider the remaining three factors in order.
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The plaintiffs appear to concede that these interests chattanoog be sufficiently important to justify a content-neutral restriction on speech. This concession is wise, as courts have repeatedly found the prevention of crime and disease to satisfy this part of the O'Brien test. They claim that expensive chattanopga no evidence that "adult cabarets," as opposed to "adult bookstores," are associated with crime or health problems. They are incorrect. First, crime: Ann Martin, the sole shareholder of DLS, operated another adult cabaret in Chattanooga known as the "Classic Cat" in chattanooga late 's and early 's.
Police records reveal that, in andpolice were called to the Classic Cat a total of times; the records include reports of escort, aggravated assault with weapon, prostitution, contributing to the delinquency of a minor, and one report of lunacy. In addition, chattanoga are contemporaneous reports of serious crimes at other adult cabarets in Chattanooga, including prostitution at "Night Haven," and sexual exploitation of a minor at "Club Do-Do.
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Each officer testified that he has witnessed, or personally been subjected chattanokga, violations of the old ordinance's prohibition on contact between entertainers and customers; commonly, such contact occurs in one-on-one "couch dances" in an area separated from the main performing stages. An officer of the Chattanooga Health Department testified that such contact poses a risk of the transmission of disease. Furthermore, particular dances described in the record--such as one instance in which a dancer invited customers to spoon-feed themselves whipped cream off of her breasts, buttocks, and vaginal area--pose a particularly acute risk of the transmission of disease.
They cite Sixth Circuit authority to the effect that the government must show that the legislature actually relied on evidence of secondary effects. See Christy v.
City of Ann Arbor, F. City of Keego Harbor, F. This argument, however, is foreclosed by Justice Souter's concurrence in Barnes: 28 Our appropriate focus is exensive an empirical inquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the escorys application of the statute may be constitutional To the extent that Christy and Keego Harbor required a different analysis, they have been altered by controlling Supreme Court precedent.
A prohibition on contact certainly limits the spread of disease. The record demonstrates that the addition of a buffer zone to the ban on contact was necessary to achieve that goal, given the repeated violations of the no-contact rule and testimony to the effect that, without a buffer zone, it was difficult to determine if contact actually occurred or who was responsible. Chattanooga respect to crime, just as the State of Indiana could conclude that "the higher incidence of prostitution and sexual expensive in the vicinity of adult entertainment locations from the concentration of crowds of men predisposed to such escorts, or from the simple viewing of nude bodies," Barnes, U.
Justice Souter rejected chattanooag dissent's contention that the crime at issue in that case arose from the persuasive effects of the expressive activity, arguing, as discussed above, that the mere fact of concentration of crowds or the viewing of even a non-expressive nude body could provide the causal link. City of St. Paul, U.
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