Marco Lounge, Inc. v. City of Federal Heights ( 1981 )

LOHR, Justice.

Marco Lounge, Inc. (Marco) appeals from an order of the Adams County district court denying Marco’s motion for a preliminary injunction against the City of Federal Heights (City) to prohibit enforcement of the City’s order that Marco cease and desist from presenting live, nude entertainment in the bar which it owns and operates in the City. We conclude that the ordinance upon which the cease and desist order was based violates the guarantee of freedom of speech under the First and Fourteenth Amendments ¹ and therefore • reverse the trial court’s order.

The City of Federal Heights adopted the following zoning ordinance prior to the events which gave rise to this litigation:

“10-1-5 ZONING DISTRICTS: In order to carry out the provisions of this Ordinance, the Town is hereby divided into the following zoning districts:

R1 Residential District R3 Apartment District

R2 Duplex District R4 Mobile Homes

B1 Business District Cl Commercial District

I Industrial District El Entertainment District

USES PERMITTED AND DENSITY SCHEDULE IN THE El DISTRICT:

A. Permitted Uses:

L Massage Parlors 2. Any place providing

3. Outlets for the live, nude entertain-sale of porno- ment graphic material

4. Nothing herein shall apply to premises licensed under the State Liquor Code, except that live, nude entertainment shall be prohibited in all such premises.

B. E-l ZONING BOUNDARY ORDINANCES WILL BE INITIATED AND ENACTED SOLELY BY THE QUALIFIED ELECTORS OF THE TOWN OF FEDERAL HEIGHTS, CO, UNDER TITLE 1, ARTICLE 40 OF THE COLORADO REVISED STATUTES OF 1973.

C. THE BOARD OF TRUSTEES OF THE TOWN OF FEDERAL HEIGHTS hereby determines that an emergency exists affecting the health, welfare and safety of the citizens of the Town, because of an anticipated influx of the types of uses described herein and, therefore, this ordinance shall become effective immediately upon its posting at three public places within the Town after enactment by the Board of Trustees.”

Also part of the City’s zoning ordinance is the following provision:

“The listing of any use in said schedule as being permitted in any particular district shall be deemed to be an exclusion of such use from any other district unless the use is specifically permitted in such other district under the language set forth in the schedule.”

Marco’s bar is licensed under the state liquor code and is situated in a Cl commercial district. No part of the City is zoned El, the only zoning district in which live, nude entertainment is permitted.

Prior to September 27, 1978, Marco was presenting live, nude entertainment in its bar. On that date the City served a letter upon Marco requiring that it cease and desist from such activity. Marco then brought this action in district court and sought and obtained a temporary restraining order prohibiting enforcement of the City’s cease and desist order. Later, after a hearing on a motion for preliminary injunction, the trial court upheld the validity of the zoning ordinance and of the cease and desist order issued to Marco, denied Marco’s application for preliminary injunction, and vacated the temporary restraining order. Marco has appealed from that ruling.²

Marco challenges the validity of the ordinance upon the grounds that it violates the constitutional guarantee of freedom of speech and denies Marco the equal protection of the laws. We find that the freedom of speech challenge is meritorious and so do not reach the equal protection issue.

I.

Before we consider the constitutional questions, we must determine whether Marco has standing to raise them.

A.

In the usual case “[t]he proper inquiry on standing is whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions.” Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977); accord, Denver Urban Renewal Authority v. Byrne, Colo., 618 P.2d 1374 (1980); Dodge v. Department of Social Services, Colo., 600 P.2d 70 (1979). Here, the City’s order prohibiting live, nude entertainment in Marco’s bar plainly establishes injury in fact to Marco’s interest in presenting such entertainment. Under the Wim-berly test, therefore, our inquiry must focus on whether Marco’s interest is legally protected.

The City does not contend that all live, nude entertainment is obscene, and thus not protected by the First Amendment. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). It recognizes, as it must, that included within live, nude entertainment are forms of communication and expression which are protected by the First Amendment. See Erznoznik v. the City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Doran v. Salem, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); Felix v. Young, 536 F.2d 1126 (6th Cir. 1976); Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir. 1975).

The City’s position is that live, nude entertainment can be prohibited in state liquor-licensed establishments notwithstanding the fact that such a prohibition extends to constitutionally protected expression. See California v. LaRue, supra. Thus, the City contends that Marco lacks a legally protected interest upon which to base its challenge to the zoning ordinance. We disagree.

B.

We predicate our conclusion that Marco has standing to challenge the City’s zoning ordinance upon an exception to the Wimberly rule recognized in First Amendment cases. In such cases the rules of standing are broadened to permit parties to assert the facial unconstitutionality of laws or regulations which may create a chilling effect on the freedom of expression of persons not before the court, even though the laws or regulations could be constitutionally applied to the parties to the case. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Williams v. City and County of Denver, Colo., 622 P.2d 542 (1981); Bolles v. People, 189 Colo. 394, 541 P.2d 80 (1975). Such laws or regulations are said to be overbroad. Id.

The reason for relaxation of traditional rules of standing in First Amendment cases is that:

“ ‘The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.’ ”

Bolles v. People, supra, at 396, 541 P.2d at 82, quoting Broadrick v. Oklahoma, supra, 413 U.S. at 612, 93 S.Ct. at 2915, 38 L.Ed.2d at 840.

The doctrine of overbreadth must be applied with caution, in recognition of the interest of the state in controlling harmful, constitutionally unprotected conduct. See Broadrick v. Oklahoma, supra. That principle was developed in Broadrick as follows:

“It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary action’ is inappropriate. Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (opinion of Black, J.). But the plain import of our cases is, at the very least, that facial over breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect — at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969). To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

Id. at 615, 93 S.Ct. at 2917, 37 L.Ed.2d at 842. As the ability to narrow the applicability of a statute by construction increases, the appropriateness of allowing a party-within the legitimate sweep of the statute to challenge it for overbreadth diminishes. Id. Also, overbreadth challenges by such a party are less favored if the statute is not censorial, i. e., if it is neutral in application rather than directed at particular groups or viewpoints. Id.

For the purpose of the Broadrick test, we assume that live, nude entertainment could be proscribed in state liquor-licensed establishments under California v. LaRue, supra, i. e., that the “plainly legitimate sweep” of the ordinance extends to prohibition of live, nude entertainment in those establishments.³ But this ordinance also affects theaters, concert halls and other non-liquor-licensed establishments which might present live, nude entertainment. Those establishments are beyond the legitimate reach of an ordinance restricting the presentation of the constitutionally protected features of live, nude entertainment⁴ to a degree more severe than permissible as a reasonable regulation of time, place or manner of presenting such entertainment. See Young v. American Mini-Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (dealing specifically with place of presentation only). The wide reach of the zoning ordinance prohibition in this case is not easily or fairly subject to restriction by a narrowing construction. See Erznoznik v. City of Jacksonville, supra. Nor is the zoning ordinance plan neutral and non-censorial. It is specifically directed at a particular form of expression: live, nude entertainment, See Broadrick v. Oklahoma, supra. We conclude that the excessive sweep of the City’s zoning regulation beyond application to state-liquor-licensed establishments, if not supportable as a reasonable time, place and manner restriction, is both real and substantial within the meaning of Broadrick. See Erznoznik v. City of Jacksonville, supra. Thus we conclude that Marco has standing to challenge the zoning ordinance, as overbroad. See Doran v. Salem Inn, Inc., supra.⁵

II.

We proceed next to the question whether the City’s zoning ordinance is constitutionally supportable, and conclude that it is not.

The United States Supreme Court has recognized that zoning ordinances which regulate the time, place and manner of uses such as adult movie theatres, involving presentation of some protected expression, are permissible if they are both reasonable and necessary to further significant governmental interests. Young v. American Mini-Theatres, supra.⁶ Municipalities may well have a significant governmental interest in imposing reasonable limitations on the time, place and manner of presentation of some forms of live, nude entertainment. See Young v. American Mini-Theatres, supra; California v. LaRue, supra. Here, it is the reasonableness of the zoning regulations in a First Amendment context which is at issue.

In Young, Detroit’s zoning regulations mandating dispersal of adult movie thea-tres, adult book stores, and kindred uses, by limiting their proximity to each other and to residential uses were sustained. The United States Supreme Court concluded that the zoning regulations left “the market for [adult theatres] . . . essentially unrestrained.” Id. at 62, 96 S.Ct. at 2448, 49 L.Ed.2d at 321. See Hart Bookstores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979); Northend Cinema, Inc. v. City of Seattle, 90 Wash.2d 709, 585 P.2d 1153 (1978).⁷

In California v. LaRue, supra, the United States Supreme Court upheld a department of alcoholic beverage control regulation of the State of California imposing a complete prohibition of specified sexually related acts and anatomical displays, live or on film, in premises licensed by the State to sell alcoholic beverages. In that case the Twenty-First Amendment power to regulate traffic in intoxicating liquor⁸ was recognized as an important source of state authority, supplementing the general police power of the state. Accord, New Safari Lounge, Inc. v. City of Colorado Springs, 193 Colo. 428, 567 P.2d 372 (1977). In upholding the regulation in LaRue, it was deemed “a critical fact .. . that California has not forbidden these performances across the board” California v. LaRue, supra, at 118, 93 S.Ct. at 397, 34 L.Ed.2d at 352.

In none of the above cases was a form of protected speech totally extinguished within a municipality for any period of time. See Developments in the Law—Zoning, 91 Harv.L.Rev. 1427, 1558 (1978). Where an individual establishment was affected, an amortization period was allowed. Cf. N. Marcus, Zoning Obscenity, 27 Buffalo L.Rev. 1, 13-14 (1978) (discussing a one-year amortization period for proposed New York City zoning of adult establishments). As Justice Stevens noted in Young v. American Mini-Theatres, supra, “[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.” Id. at 71, n. 35, 96 S.Ct. at 2453, 49 L.Ed.2d at 327. Yet this is precisely the effect of the ordinance before us.

The City’s zoning plan lacks the narrow range of applicability of the prohibition of protected speech in LaRue and lacks the reasonableness of the zoning restrictions in Young and related cases. Effectively, it bans live, nude entertainment in the City of Federal Heights, and cannot be sustained. See Bayside Enterprises, Inc. v. Carson, 450 F.Supp. 696 (M.D.Fla.1978).

At present, the presentation of live, nude entertainment anywhere in the City is forbidden. Although such use is permitted in an El zoning district, there is no such district and there is no assurance that such a district will ever be created. The ordinance limits the manner of creation of such a district to the enactment of an ordinance amendment by initiative. See section 1-40-101, et seq., C.R.S.1973. The ordinance does not mandate an election to determine whether the voters wish to create an El district. Whether the City will ever have such a district is to be determined by the unbridled and standardless decision of the people. This is absolute censorship pending an election which may never be held. If such election should occur the ordinance permits continuation of this censorship by a majority vote, the very evil which the First Amendment was adopted to prevent.⁹

Those cases recognizing that permits may be required in some instances as reasonable conditions to the exercise of First Amendment rights point up the unreasonableness of the City’s plan here. In such cases, a permit system has been sustained only when there can be shown a legitimate governmental interest in requiring a permit, and where the criteria for administrative issuance of such a permit are narrow, objective and definite. See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (permit for use of municipal theatre); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (permit for public demonstration or march). The procedure also must include opportunity for prompt judicial review of an administrative decision to deny a permit. See, e. g., Southeastern Promotions, Ltd. v. Conrad, supra;¹⁰ Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (license to exhibit adult movies). The contrast between those cases and the City’s El zoning plan here could hardly be more stark.

Shuttlesworth and Freedman also illustrate the poverty of the City’s argument that Marco cannot complain unless and until it attempts to obtain enactment of an initiated ordinance to establish an El entertainment zoning district and is unsuccessful in doing so. Putting aside the question whether the time and expense incident to such a procedure would in themselves unconstitutionally burden exercise of First Amendment rights, see Bayside Enterprises, Inc. v. Carson, supra, we hold that Marco’s right to challenge the zoning plan cannot be conditioned on lack of success in a standardless, unreviewable popular election. See, e. g., Freedman v. Maryland, supra.¹¹

We reverse the order of the trial court and remand this matter to that court with directions to issue a preliminary injunction against the City as prayed for by Marco, and for further proceedings consistent with the views expressed in this opinion.

LEE, J., dissents, and HODGES, C. J., and ROVIRA, J., join in dissent. ROVIRA, J., dissents, and HODGES, C. J., and LEE, J., join in dissent.

1 . U.S.Coast. Amend. I provides in pertinent part: “Congress shall make no law ... abridging the freedom of speech, .. . This guarantee is applicable to the states under U.S.Const. Amend. XIV, Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). CoIo.Const. Art. II, § 10 provides in pertinent part: “No law shall be passed impairing the freedom of speech . . . Our references to the First Amendment guarantee in this opinion are intended to include the Colorado Constitution’s protection of free speech as well.

2 . The denial .of a preliminary injunction is ap-pealable. C.A.R. 1(a)(3). The trial court specifically ruled that the ordinance does not violate the United States Constitution. Although at the preliminary injunction stage the scrutiny of that ordinance could have been limited to a determination of the likelihood that Marco would prevail on the merits, see Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Combined Communications Corp. v. City and County of Denver, 186 Colo. 443, 528 P.2d 249 (1974), the trial court did not so limit its ruling. We treat the ruling as one intended to be final, not merely a forecast that Marco probably would be unable to establish the constitutional invalidity of the ordinance at trial.

3 . It is not at all certain, however, that the City zoning ordinance here in question can be supported, even as to establishments licensed under the state liquor laws. In California v. LaRue, supra, the United States Supreme Court concluded from the record that the performances prohibited, though not obscene, “[partook] more of gross sexuality than of communication.” The scope of “live, nude entertainment” extends beyond grossly sexual performances and embraces activity different in kind from that found to have been permissibly proscribed in LaRue.

Finding, as we do, another basis for Marco’s standing to challenge the City’s zoning ordinance and another reason establishing the constitutional infirmity of that ordinance, we do not pursue further the question whether the City could prohibit all activity comprehended within “live, nude entertainment” in state liquor-licensed establishments.

4 . Falling within the ordinance’s scope but clearly entitled to First Amendment protection are such serious artistic works as “Ballet Africains.” See Doran v. Salem Inn, Inc., supra.

5 . People v. Bridges, Colo., 620 P.2d 1 (1980), and People v. Weeks, 197 Colo. 175, 591 P.2d 91 (1979), are not to the contrary, although it may be questioned whether the limitation on standing to assert First Amendment rights of parties not before the court as recognized in those cases is fully consistent with the controlling authority of Broadrick v. Oklahoma, supra, and Bigelow v. Virginia, supra, as well as with Bolles v. People, supra. In Bridges we stated that limitation as follows: “standing to attack a statute is limited to only those defendants whose conduct is at the periphery of the activity proscribed by the statute.” People v. Bridges, supra, 620 P.2d at 5.

6 . In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), upholding a conviction for violation of a statute prohibiting the knowing destruction of a draft registration certificate, the United States Supreme Court summarized the principles applicable to governmental regulation of communicative conduct in general as follows: “This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; 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.” Id. at 376-377, 88 S.Ct. at 1679, 20 L.Ed.2d at 679-680.

7 . Young and its progeny are remarkable in permitting reasonable time, place and manner restrictions on speech of a specified content, going beyond earlier cases permitting such restrictions on all speech irrespective of content. See Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949).

8 . “The transportation or importation into any state ... of the United States for delivery and use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const. amend. XXI. Here, we assume the City is exercising the State powers under the Twenty-First Amendment, pursuant to appropriate delegation, in licensing establishments to sell liquor.

9 . A requirement that zoning ordinances be subject to approval by the voters is not per se unreasonable. See Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). But where such a plan affects exercise of rights under the First Amendment, additional considerations are involved, requiring a careful analysis of the effect of the plan upon exercise of such rights. See Developments in the Law—Zoning, supra; see generally, Note, The Proper Use of Referenda in Rezoning, 29 Stanford L.Rev. 819 (1977).

10 . In Southeastern Promotions, Ltd. v. Conrad, supra, in finding the procedures for licensing use of municipally owned theatres, involving administrative evaluation of proposed productions, to be constitutionally inadequate, the United States Supreme Court said: “We held in Freedman, and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured.” Id. at 560, 95 S.Ct. at 1247, 43 L.Ed.2d at 460.

11 . This is not a case where administrative remedies exist and must be exhausted before judicial relief may be sought. See, e. g., Heron v. City of Denver, 131 Colo. 501, 283 P.2d 647 (1955); People ex rel. Dunbar v. District Court, 129 Colo. 203, 268 P.2d 1098 (1954).