600 Marshall Entertainment Concepts, LLC v. City of Memphis

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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600 MARSHALL ENTERTAINMENT CONCEPTS,
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LLC, dba The Spot,
Plaintiff-Appellant, -
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No. 11-6362
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>
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v.
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Defendant-Appellee, --
THE CITY OF MEMPHIS,
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MEMPHIS MEDICAL CENTER, a Division of the -
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Intervenor-Appellee. -
Memphis Bio-Works Foundations,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 2:05-cv-2865—Bernice Bouie Donald, District Judge.
Argued: December 4, 2012
Decided and Filed: February 1, 2013
Before: McKEAGUE and GRIFFIN, Circuit Judges; DLOTT, Chief District Judge.*
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COUNSEL
ARGUED: Bradley J. Shafer, SHAFER & ASSOCIATES, P.C., Lansing, Michigan, for
Appellant. J. Michael Fletcher, Memphis, Tennessee, for Appellees. ON BRIEF:
Bradley J. Shafer, Matthew J. Hoffer, SHAFER & ASSOCIATES, P.C., Lansing,
Michigan, Edward M. Bearman, THE LAW OFFICE OF EDWARD M. BEARMAN,
Memphis, Tennessee, for Appellant. J. Michael Fletcher, Memphis, Tennessee, Saul C.
Belz, Michael D. Tauer, GLANKLERBROWN, PLLC, Memphis, Tennessee, for
Appellees.
*
The Honorable Susan J. Dlott, Chief United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 2
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OPINION
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McKEAGUE, Circuit Judge. 600 Marshall Entertainment Concepts, LLC
(“600 Marshall”) is a nightclub in Memphis, Tennessee. It is located in a zoning district
where adult entertainment has been prohibited since 1993. Although already allowed
to present most forms of adult entertainment under a grandfather clause in the zoning
ordinances, 600 Marshall desires to present adult entertainment in the form of
compensated dancers (“nude dancing” for short).1 600 Marshall also claims that a city
ordinance requiring a permit to present compensated dancers (the “Dance Hall
Ordinance”) is unconstitutional, both as an improper prior restraint and as vague.
Finally, 600 Marshall claims that a city official’s actions violated its procedural due
process rights. 600 Marshall seeks nominal damages for these violations under
42 U.S.C. § 1983. Upon remand from another panel of this Court, the district court
ruled adversely to 600 Marshall on these issues. We affirm.
I. BACKGROUND
This is 600 Marshall’s second appeal to this Court in this case. In 600 Marshall
Entertainment Concepts, LLC v. City of Memphis (600 Marshall), 375 F. App’x 513
(6th Cir. 2010), 600 Marshall appealed from an adverse judgment in a bench trial, and
another panel of this Court remanded for further factual findings and legal conclusions.
After several of the remand issues were resolved adversely to 600 Marshall, it brought
this second appeal.
1
When we use the term “nude dancing,” we are referring to compensated dancers engaged in
“specified sexual activities” or displaying “specified anatomical areas” as those terms are defined in
Memphis, Tenn., Code § 16-8-2.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 3
Underlying Facts2
600 Marshall is a nightclub in Memphis, Tennessee. It is located within a zoning
district known as the Central Business District (“CBD”). The CBD was created by city
ordinance in 1981. Adult entertainment was permitted in the CBD from 1981 to 1993.
“Adult entertainment” is defined in the zoning title of the Memphis Code of Ordinances
to encompass things such as adult book stores, adult movie theaters, and live
performances involving nudity or sexual acts. See Memphis, Tenn., Code § 16-8-2. In
1993, Memphis and Shelby County issued Joint Ordinance No. 4209 (the “1993
Ordinance”), which eliminated adult entertainment as one of the permitted uses within
the CBD.
While the zoning ordinances define and prohibit adult entertainment, the
presentation of compensated dancers—whether or not they are engaged in nude
dancing—is regulated by the Dance Hall Ordinance. See Memphis, Tenn., Code § 6-20.
A substantially similar version of this Ordinance was enacted in 1971. See Editor’s Note
to Memphis, Tenn., Code § 31-21 (1967). The current version requires any
establishment wishing to present compensated dancers to first obtain a dance permit and
pay a $500 fee.3 Memphis, Tenn., Code §§ 6-20-1, 6-20-4, 6-20-11. To obtain a dance
permit, applicants must complete an “Application for Public Dance Hall Permit.” The
application asks whether the establishment will “feature adult entertainment” and, if so,
to describe the type of entertainment that will be provided. In 2005 when the
controversy in this case began, no dance permit had been issued for the businesses at the
600 Marshall location since at least 1991.
2
This recitation of the underlying facts is drawn in large part from our opinion in the first appeal,
where they are set forth in more detail.
3
The Dance Hall Ordinance also requires a permit to hold a “public dance” that does not include
compensated dancers. Memphis, Tenn., Code § 6-20-4. The fee to host this type of dance is only $100.
Id. § 6-20-11. Although the term does not appear in either the Ordinance or the application form, the prior
opinions in this case have distinguished between the two different permits by referring to a permit that
authorizes compensated dancers as a “Compensated Dance Permit.” But because the permit for
uncompensated dance is irrelevant to this appeal, we can safely ignore its existence. When we use the term
“dance permit,” we are referring specifically to the $500 permit that authorizes compensated dancers.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 4
Various entities have operated at the 600 Marshall location as a bar, club, or
other similar facility since at least the 1970’s. From the 1970’s until the early 2000’s,
operators at the location occasionally presented or allowed various types of adult
entertainment. The district court found evidence that at least through the late 1990’s,
that adult entertainment included nude dancing. See 600 Marshall Entm’t Concepts,
LLC v. City of Memphis (600 Marshall), 812 F. Supp. 2d 870, 877 (W.D. Tenn. 2011).
On August 15, 2005, Charles G. Westlund entered into an agreement to purchase
600 Marshall. Westlund purchased the property intending to operate an adult nightclub
featuring nude dancing. That same day, 600 Marshall applied for a dance permit through
the City’s Permits and Licensing Department. On its application, 600 Marshall indicated
that it would feature adult entertainment. On September 16, 2005, it was issued a dance
permit. The dance permit said “NO NUDITY” in large letters.
Ten days later, Lilli Jackson, an official with the Permits and Licensing
Department, informed 600 Marshall that her office was reviewing whether the dance
permit was issued in error. On October 4, 2005, Jackson sent 600 Marshall a letter
revoking the dance permit, stating that upon further review, the City had determined that
600 Marshall was within the Central Business Improvement District4 and therefore
ineligible for a dance permit. Evidently Jackson believed that a dance permit would
authorize 600 Marshall to present adult entertainment, an activity prohibited in the CBD.
Because the letter did not contain a provision staying the revocation, the permit became
null and void when the letter was issued. Without a dance permit, 600 Marshall could
not present compensated dancers in any form.
600 Marshall sought review of the decision to revoke its dance permit through
the procedure specified in the Dance Hall Ordinance. See Memphis, Tenn., Code § 6-
20-10. On November 2, 2005, a three-member panel designated by Larry Godwin,
Director of Police Services, heard 600 Marshall’s appeal and ultimately found that the
4
Memphis, Tenn., Code § 12-32 creates the Central Business Improvement District. The Central
Business Improvement District is a tax overlay district that geographically coincides with the CBD zoning
district.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 5
dance permit was “wrongfully revoked and that the permit should be reissued
immediately conditioned on prohibition of any adult entertainment or activity . . . unless
and until the Petitioner receives the proper approvals from the Building Official.” See
Petitioner’s App. 59-60. Dedrick Brittenum, a member of the panel, testified that the
reason for the panel’s decision was that in their view the issuance of a dance permit is
unrelated to the presence of adult entertainment. On December 15, 2005, Godwin
rejected the panel’s findings and recommendations, writing: “I do not accept the
recommendation of this Panel. This application is denied.” Id. at 61. Godwin testified
that he was unfamiliar with the dance permit scheme and assumed that the purpose of
the panel was to determine why the dance permit was issued in error, not whether it
should be re-issued. Godwin was not present at the administrative hearing and did not
review the transcript or evidence from the hearing.
On November 17, 2005, subsequent to the panel hearing but prior to Godwin’s
ultimate decision regarding the panel’s recommendation, 600 Marshall sought judicial
review of the administrative denial of its dance permit pursuant to Tenn. Code Ann.
§ 27-9-111(e). On November 28, 2005, Memphis removed the action to the District
Court for the Western District of Tennessee based on the civil rights and constitutional
claims alleged in 600 Marshall’s petition.
The district court denied 600 Marshall’s request for a preliminary injunction and
conducted a two-day bench trial, which resulted in a finding that 600 Marshall had not
carried its burden of showing a lawful, sufficiently continuous, non-conforming adult
entertainment use that would entitle it to “grandfathering.” The district court declined
to reach 600 Marshall’s constitutional claims, concluding that it need not do so because
it ruled against 600 Marshall on statutory grounds. Sometime between the preliminary
injunction hearing and the bench trial, as a result of negotiations, 600 Marshall received
a dance permit with a nudity restriction.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 6
The First Appeal
600 Marshall appealed, and another panel of this Court remanded the case for
additional factual findings and legal conclusions. See 600 Marshall, 375 F. App’x at
521. Specifically, the panel observed that the district court’s basis for rejecting
600 Marshall’s grandfathering argument was that the location had not obtained dance
permits after 1991, and therefore any adult entertainment would have been conducted
unlawfully. Id. at 519. But the panel noted that “[t]he universe of adult entertainment,
as defined, is not identical to the universe of activity that requires a [dance permit].” Id.Therefore, adult entertainment that did not involve compensated dancing would have
been lawful and entitled to grandfathering. Id. The panel further stated that “because
600 Marshall was denied a remedy on other grounds, the district court was required to
address constitutional claims that, if successful, would entitle 600 Marshall to a
remedy.” Id. at 520.
Therefore, the Panel instructed the district court to consider five issues on
remand:
(1) It should determine whether there was lawful adult entertainment of a type
that did not require a dance permit prior to 1993.
(2) It should consider whether prior owners of 600 Marshall abandoned or
discontinued adult entertainment use under Memphis, Tenn., Code § 16-116-
2(F), and also whether any prior owner effected a change in use under § 16-116-
2(E).
(3) If the district court concluded that 600 Marshall was entitled to
grandfathering based on prior adult entertainment activities that did not require
a dance permit, it should consider whether allowing adult entertainment that does
require a dance permit would violate Memphis, Tenn., Code § 16-116-2(C)(3),
which prohibits the expansion of a nonconforming use “in such a manner as to
conflict with, or to further conflict with . . . any use limitations established for
the district in which such use is located.”
(4) If the district court concluded that 600 Marshall was not entitled to a dance
permit allowing nude dancing, it should address any of 600 Marshall’s
constitutional claims that it had standing to bring and that, if successful, would
entitle it to a remedy.
(5) It should address 600 Marshall’s claim for damages under 42 U.S.C. § 1983.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 7
The Remand
The district court instructed the parties to file briefs presenting “additional
argument in light of the [Sixth Circuit’s] decision.” R. 132, Order, PageID # 1275.
Based on the briefs, the district court found in 600 Marshall’s favor on issues (1) and (2).
It found that there was evidence of adult movies and drag performances sufficient to
support a finding that adult entertainment activities that did not require a dance permit
were occurring before 1993. See 600 Marshall, 812 F. Supp. 2d at 877. It then found
that prior owners of 600 Marshall had not abandoned or discontinued adult entertainment
activities, or effected a change in use, under the relevant ordinances. Id. at 877-78.
The district court ruled against 600 Marshall on issues (3), (4), and (5). It
concluded that “the nightly presentation” of nude dancing would expand the “prior
nonconforming activities, which were infrequent and interspersed with regular,
mainstream musical and social events . . . in direct contravention of Memphis, Tenn.,
Code § 16-116-2(C).” Id. at 880. In response to 600 Marshall’s argument that this city
code provision conflicted with Tennessee state law, the district court emphasized the
point that in the absence of a dance permit, nude dancing was not being lawfully
conducted before the 1993 Ordinance, and therefore Memphis could prohibit
600 Marshall from expanding its adult entertainment activities to include nude dancing.
Id. at 880-81.
The district court then addressed issues (4) and (5) together. It noted that
“[t]hroughout the course of this litigation, 600 Marshall has alleged in a very general
way violations of its constitutional rights, but has failed in most instances to clearly and
succinctly articulate the basis of its constitutional claims.” Id. at 881. “At [the remand]
stage, only one constitutional claim—a vagueness challenge—has been fully briefed and
advanced by 600 Marshall.” Id. But since 600 Marshall had made “repeated, albeit
fleeting, references to ‘a protected property interest’ and ‘arbitrary and capricious
decision-making,’” the district court decided to discuss “a potential due process
violation.” Id.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 8
On the issue of vagueness, the district court observed that 600 Marshall appeared
to be challenging the Dance Hall Ordinance on this ground both facially and as applied.
Id. at 881-82. It dismissed the as-applied challenge, stating that “a proper challenge on
vagueness grounds is not a challenge to the way a law was applied in a particular
instance; it is a challenge to the law itself.” Id. at 882. It also rejected the facial
challenge, noting that although the city officials demonstrated a disturbing lack of
understanding of the Ordinance, “600 Marshall ha[d] not established that [their
misunderstanding was] the result of any vagueness inherent in the Dance Hall
Ordinance.” Id. at 883.
On the issue of due process, the district court concluded that 600 Marshall had
claimed both procedural and substantive due process violations. Id. at 883. It found
that “Godwin’s actions constitute[d] arbitrary and capricious decision-making.” Id.
However, it ultimately determined that 600 Marshall had not suffered a constitutional
injury since it did not have “a legitimate claim of entitlement” in the dance permit it was
initially issued. Id. at 884.
Addressing the issue of municipal liability, the district court observed that
“600 Marshall ha[d] not articulated any explicit argument as to why the City should be
liable for damages as a result of Godwin’s conduct.” Id. at 885. “As 600 Marshall ha[d]
offered no evidence or argument whatsoever on the issue of municipal liability, there
[was] simply no basis on which the [district court] could find the City liable for damages
as a result of Godwin’s conduct.” Id.
II. ANALYSIS
As things currently stand, 600 Marshall can present compensated dance on its
premises, so long as the dance does not involve adult entertainment and it maintains an
up-to-date dance permit. It can also present adult entertainment, so long as this
entertainment does not involve nude dancing. In short, the only thing 600 Marshall
cannot do is present nude dancing, which for 600 Marshall is no doubt a significant
restriction.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 9
600 Marshall asks us to make several findings and do several things:
(1) Either find that allowing nude dancing would not expand a nonconforming
use, or find that under state law Memphis lacks the authority to prohibit the
expansion of a nonconforming use;
(2) Find that the Dance Hall Ordinance is unconstitutional and is void ab initio;
(3) Find that Godwin’s actions violated 600 Marshall’s First Amendment and
due process rights;
(4) Remand with instructions that the district court grant injunctive relief
enjoining Memphis from enforcing the Dance Hall Ordinance and/or requiring
Memphis to issue a dance permit without a nudity restriction; and
(5) Find Memphis liable under § 1983 and remand with instructions to determine
the amount of damages. (Although 600 Marshall waived any claim for lost
profits, it states that it seeks to make a “limited claim for damages.”)
A. Standard of Review
This appeal presents questions of law, which we review de novo. See Cutter v.
Wilkinson, 423 F.3d 579, 584 (6th Cir. 2005).
B. Grandfathering
The district court found that allowing 600 Marshall to present frequent nude
dancing would expand the nonconforming use in contravention of Memphis, Tenn.,
Code § 16-116-2(C). 600 Marshall contends that the district court erred in making this
determination, and further, that Memphis lacks the authority to restrict the expansion of
a nonconforming use because this ordinance conflicts with Tenn. Code Ann. § 13-7-
208(c). Memphis counters by arguing that Memphis derives its zoning power from a
Private Act of the Tennessee Legislature and therefore possesses the authority to restrict
the expansion of a nonconforming use.
Although discussion of these issues consumes a substantial portion of the briefs,
we need not resolve them. This whole dispute has put the proverbial cart before the
horse. The bottom line here is that nude dancing is not an activity that can be
grandfathered because it was not being legally conducted when the 1993 Ordinance
changed the zoning laws to prohibit adult entertainment in the CBD.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 10
Both Tenn. Code Ann. § 13-7-208(b)(1) and Memphis, Tenn., Code § 16-116-
2(A) contain grandfather clauses. “A grandfather clause is defined as ‘an exception to
a restriction that allows all those already doing something to continue doing it, even if
they would be stopped by the new restriction.’” Coe v. City of Sevierville, 21 S.W.3d
237, 243 (Tenn Ct. App. 2000) (quoting Black’s Law Dictionary 629 (5th ed. 1979)).
To qualify for grandfathering, a plaintiff must prove “(1) that there has been a change
in zoning . . . , and (2) that the use to which [he] put [his] land was permitted prior to the
zoning change.” Id. Notably, “[t]he grandfather statute can save only a use which was
legal at the time the change in zoning occurred.” Id. at 244.
We find the Tennessee Court of Appeals’ decision in Coe v. City of Sevierville
instructive in our resolution of the grandfathering issue. The plaintiff in that case built
a sign on her land in 1970. Id. at 238. In 1972, Tennessee enacted a law that required
a permit to use or maintain such signs, but the plaintiff never obtained one. Id. at 239.
In 1978, plaintiff’s land was annexed by the City of Sevierville, which had a zoning
ordinance that prohibited signs like the plaintiff’s. Id. In 1995, the plaintiff’s daughter
decided to replace the aging sign and obtained a permit from the state. Id. But the
plaintiff was informed that the City of Sevierville would not grant a renovation permit.
Id. The plaintiff filed suit, arguing that “her sign [was] a pre-existing non-conforming
use entitled to grandfathering under T.C.A. § 13-7-208.” Id. at 242.
The Tennessee Court of Appeals disagreed. Because the plaintiff’s sign was
illegal under state law, it was not entitled to grandfathering. Id. at 244. The court
explained that “[w]hen a legal use becomes illegal by virtue of a zoning change, a
grandfather statute may protect the use. In this case, however, illegal activity under state
law became illegal under municipal ordinance by virtue of a zoning change.” Id.
Therefore, “[t]he grandfather statute [could not] be applied to treat Plaintiff’s sign as
legal and permitted under state law in 1978. To hold otherwise would stand the
grandfather statute on its head.” Id. Furthermore, “[t]he fact that Plaintiff applied for
and was granted a State permit in 1995 [did] not solve Plaintiff’s problem.” Id. Because
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 11
the sign was not legal when the zoning change occurred, it was not entitled to
grandfathering. Id.
We find that the same result should obtain in this case. It is undisputed that the
owner of the premises at 600 Marshall did not have a dance permit in 1993 when adult
entertainment became a prohibited use in the CBD. To the extent nude dancing was
occurring at the 600 Marshall location, that activity was illegal under the Dance Hall
Ordinance. See Memphis, Tenn., Code § 6-20-4. Now 600 Marshall seeks to
grandfather in nude dancing as a preexisting nonconforming use. But nude dancing was
an illegal activity in 1993, and illegal activities are not entitled to grandfathering. As in
Coe, the fact that 600 Marshall has since obtained a dance permit is irrelevant. Since
nude dancing was illegal in 1993, it is not entitled to grandfathering. And since nude
dancing is not entitled to grandfathering in the first place, it is unnecessary for us to
determine whether frequent nude dancing would constitute an impermissible expansion
of a nonconforming use under Memphis, Tenn., Code § 16-116-2(C).5
C. Constitutional Claims
As it has done throughout the various stages of this litigation, 600 Marshall
alleges multiple constitutional violations. 600 Marshall claims that the Dance Hall
Ordinance is unconstitutional as an improper prior restraint on expressive activities
because it does not contain the procedural safeguards required by Freedman v. State of
Maryland, 380 U.S. 51 (1965). 600 Marshall further claims that the Ordinance is
unconstitutionally vague, both facially and as applied. Additionally, 600 Marshall urges
the Panel to find that Godwin’s actions violated its procedural due process rights.
5
We note that in some jurisdictions, failure to comply with nonzoning regulations does not
preclude a nonconforming use from being grandfathered. See 4 Edward H. Ziegler, Jr., et al., Rathkopf’s
The Law of Zoning and Planning § 72:14 (4th ed. 2012). However, we find no indication that Tennessee
follows this approach. To the contrary, the Billboard Regulation and Control Act that rendered the
plaintiff’s sign illegal in Coe is found in Title 54, Chapter 21 of the Tennessee Code and is not part of Title
13, Chapter 7, which contains the zoning laws.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 12
1. Standing
Memphis contends that 600 Marshall lacks standing to bring its constitutional
claims. The Supreme Court has explained the requirement of standing as follows:
[T]he irreducible constitutional minimum of standing contains three
elements. First, the plaintiff must have suffered an injury in fact—an
invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical. Second, there must be a causal connection between the
injury and the conduct complained of. Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.
United States v. Hays, 515 U.S. 737, 742-43 (1995) (quotations and punctuation
omitted). Standing goes to this Court’s jurisdiction to hear a constitutional claim, and
this Court “[i]s under an independent obligation to examine [its] own jurisdiction.” Id.
at 742.
The aspect of this case that makes standing somewhat complicated is that
600 Marshall has not challenged the constitutionality of the zoning ordinances, which
are what actually prohibit it from presenting adult entertainment, and by extension, nude
dancing, in the CBD. Instead 600 Marshall challenges the constitutionality of the Dance
Hall Ordinance. 600 Marshall has clearly suffered an injury in fact because it has been
prohibited from presenting nude dancing at its facility. But since it is the zoning laws
and not the Dance Hall Ordinance that prohibit adult entertainment in the CBD, at first
glance it appears that there is no causal connection between the Dance Hall Ordinance
and 600 Marshall’s injury.
Nonetheless, 600 Marshall points out that if the Dance Hall Ordinance is found
facially unconstitutional and void ab initio, the nude dancing at its facility before
1993 could not be considered unlawful. In that case, it would qualify for grandfathering,
and 600 Marshall would be entitled to present nude dancing. Additionally, 600 Marshall
might be entitled to damages under its § 1983 claim. For these reasons, we conclude that
600 Marshall has standing to bring its prior restraint and vagueness challenges to the
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 13
Dance Hall Ordinance, although as seen below we reach the merits of only the vagueness
challenge.
2. Prior Restraint
600 Marshall claims that the Dance Hall Ordinance constitutes an improper prior
restraint on expressive activities because it does not contain adequate procedural
safeguards under Freedman v. State of Maryland, 380 U.S. 51 (1965). But 600 Marshall
did not raise this challenge before the district court, and “the failure to present an issue
to the district court forfeits the right to have the argument addressed on appeal.” Vance
v. Wade, 546 F.3d 774, 781 (6th Cir. 2008) (quotation omitted). “Our function is to
review the case presented to the district court, rather than a better case fashioned after
a district court’s unfavorable order.” Barner v. Pilkington N. Am., Inc., 399 F.3d 745,
749 (6th Cir. 2005) (quotation omitted). “It is well settled law that this court will not
consider an error or issue which could have been raised below but was not.” Id.(quotation and alteration omitted).
The only place where 600 Marshall raised a prior restraint challenge to the Dance
Hall Ordinance before the district court was in its Post-Trial Memorandum.6 But even
were we to conclude that a party could properly present a constitutional challenge in a
post-trial memorandum, we would not do so here. At the close of the bench trial, the
district court instructed the parties that although they could file a list of citations with “a
quick summary,” they were not permitted to file post-trial briefs. R. 124, Trial Tr.
PageID # 1246; R. 118, Order, PageID # 856. Despite this instruction, 600 Marshall
filed a 7-page “Post Trial Memorandum.” R. 112, Memorandum, PageID # 832.
Memphis moved to strike this document. Although the district court noted that the post-
trial memorandum appeared to “go[] beyond mere case citations,” the court declined to
strike it, noting instead that in its discretion it would “consider any relevant case
6
At oral argument, 600 Marshall’s attorney told us he had cited Freedman and related cases in
his closing argument. But he did so while arguing that Godwin and Jackson’s actions violated his client’s
constitutional rights. R. 124, Trial Tr. PageID # 1204-09. He was not challenging the constitutionality
of the Dance Hall Ordinance as an invalid prior restraint.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 14
authority cited.” R. 118, Order, PageID # 856. So the district court considered only the
citations in the post-trial memorandum; it did not consider the arguments raised therein.
Furthermore, 600 Marshall did not raise the prior restraint challenge in its brief
on remand. 600 Marshall points out that on remand the district court requested
“additional argument” on the remand issues. 600 Marshall claims it saw no reason to
restate an argument it had already made in a previous filing. But nowhere in its brief on
remand did 600 Marshall refer to or incorporate any arguments it had made previously
or direct the district court’s attention to previous filings. There was no reason for the
district court to look back through previous filings when deciding the issues on remand.
Additionally, after the district court clearly stated in its opinion that 600 Marshall
had raised only two constitutional issues on remand (a vagueness challenge and a due
process violation), 600 Marshall, 812 F. Supp. 2d at 881, 600 Marshall made no attempt
to notify the court that it had ignored 600 Marshall’s prior restraint challenge. See Deja
Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777, 782 (6th Cir. 2005) (en
banc) (When the district court did not address the plaintiff’s argument, the plaintiff
raised the argument in a motion to alter or amend the judgment.). Therefore, because
600 Marshall failed to raise its prior restraint challenge before the district court, thereby
depriving the district court of the opportunity to consider the issue in the first instance,
we hold that 600 Marshall has forfeited its right to raise this issue on appeal.
3. Vagueness
Due process requires that laws not be vague. Grayned v. City of Rockford,
408 U.S. 104, 108 (1972). “[A]n enactment is void for vagueness if its prohibitions are
not clearly defined.” Id. One of the dangers of vague laws is that they allow for
“arbitrary and discriminatory enforcement.” Id. Additionally, if a vague statute impacts
First Amendment rights, it can deter people from exercising those rights, since
“[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone
than if the boundaries of the forbidden areas were clearly marked.” Id. (quotation and
alteration omitted). 600 Marshall contends that the Dance Hall Ordinance is vague both
facially and as applied.
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 15
Regardless of whether we view 600 Marshall’s challenge as facial or as-applied,
7
it fails. 600 Marshall has not challenged any language in the Ordinance as vague.
Instead, 600 Marshall essentially argues that since Jackson and Godwin did not
understand the Ordinance and bungled its implementation, it must be vague. But the
officials’ misunderstanding was more likely due to a failure to actually read the
Ordinance than to any vagueness inherent in the Ordinance itself. Their confusion did
not stem from misinterpreting the language of the Ordinance.
The Ordinance is relatively simple. Before holding a “public dance,” which, with
a few exceptions, means “any dance to which the public generally gains admission,” a
person must obtain a permit and pay a fee (the fee varies depending on whether the
dance will involve compensated dancers). Memphis, Tenn., Code §§ 6-20-1, 6-20-4, 6-
20-11. To obtain a permit, a person must complete and file an application. Id. § 6-20-5.
The application form must contain several specific items, as well as “[a]ny other
information reasonably deemed necessary by the director of police services to determine
whether the applicant qualifies for the issuance of the permit.” Id. Before issuing a
permit, the director of police services must ensure that several city and county
departments complete inspections of the premises where the dance is to be held to
determine whether the premises comply with applicable laws and regulations. Id. § 6-
20-7. If the director of police services declines to issue a permit, he must provide
reasons for doing so, and the applicant can appeal, first administratively through a
hearing before the director of police services and then to the courts. Id. § 6-20-9.
Furthermore, although 600 Marshall complains that the Ordinance does not tell officials
how to deal with adult entertainment or nonconforming uses, the Ordinance has nothing
to do with those things. Nonconforming uses and the legality of adult entertainment in
a certain location are topics addressed in the zoning laws. The fact that the Ordinance
7
The district court construed 600 Marshall’s vagueness challenge as a facial challenge, stating
that “a proper challenge on vagueness grounds is not a challenge to the way a law was applied in a
particular instance; it is a challenge to the law itself.” 600 Marshall, 812 F. Supp. 2d at 882. But not only
do we frequently consider an as-applied vagueness challenge, sometimes we will only engage in an as-
applied analysis. See Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 557 (6th Cir. 1999)
(“[V]agueness claims not involving First Amendment freedoms [or criminal sanctions] must be examined
in light of the facts of the particular case at hand and not as to the statute’s facial validity.”).
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 16
does not contain provisions addressing adult entertainment or nonconforming uses may
mean that the Ordinance is not all-encompassing, but it does not mean that it is vague.
600 Marshall has not pointed to any term or provision in the Ordinance that it
believes is vague. Therefore, although we find it disturbing that city officials
demonstrated such confusion regarding the straightforward Ordinance they were
responsible for implementing, 600 Marshall has not shown that the Ordinance itself is
unconstitutionally vague.
4. Procedural Due Process
600 Marshall urges us to hold that its procedural due process rights were violated
when its dance permit was revoked and when Godwin refused to reissue it. When
evaluating a procedural due process claim, we examine first “whether the interest at
stake is a protected liberty or property right under the Fourteenth Amendment,” and
second “whether the deprivation of that interest contravened notions of due process.”
Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). Notably, “[p]roperty interests
protected by the due process clause must be more than abstract desires for or attractions
to a benefit. . . . The due process clause protects only those interests to which one has
a ‘legitimate claim of entitlement.’” Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir.
2002) (quoting Board of Regents v. Roth, 508 U.S. 564, 577 (1972)). “Only after a
plaintiff has met the burden of demonstrating that he possessed a protected property or
liberty interest and was deprived of that interest will the court consider whether the
process provided the plaintiff in conjunction with the deprivation, or lack thereof,
violated his rights to due process.” Warren v. City of Athens, Ohio, 411 F.3d 697, 708
(6th Cir. 2005).
600 Marshall has not established that it was deprived of a protected property or
liberty interest when its dance permit was revoked and not reissued. The district court
found that it did not have a legitimate property interest in the dance permit originally
issued because that permit allowed 600 Marshall to present adult entertainment and thus
was issued erroneously. See 600 Marshall, 812 F. Supp. 2d at 884. 600 Marshall has
not challenged this finding on appeal. During oral argument, 600 Marshall contended
No. 11-6362 600 Marshall v. City of Memphis, et al. Page 17
that its constitutional rights were violated because Director Godwin did not
subsequently issue a dance permit that would allow it to present non-nude dancing such
as bikini dancing. But 600 Marshall can point to nothing in the record that would
indicate it ever sought—prior to the negotiations that occurred between the preliminary
injunction hearing and the bench trial—a dance permit to present non-nude dancing. If
after its dance permit was revoked 600 Marshall had re-applied for a dance permit to
present non-nude dancing, and that application had been arbitrarily denied, it might be
able to establish a constitutional violation. But 600 Marshall did not do this. Instead,
the record indicates that 600 Marshall sought and was denied a permit to present nude
dancing—an activity prohibited inside the CBD.
D. Municipal Liability Under § 1983
As explained above, we conclude that 600 Marshall has not established a
violation of its constitutional rights. Therefore, we need not consider whether Memphis
could be held liable under § 1983.
III. CONCLUSION
Because nude dancing does not qualify for grandfathering, and because
600 Marshall has not established a violation of its constitutional rights, we AFFIRM.