Posted by: Patricia Salkin | June 29, 2013

6th Circuit Court of Appeals Holds Nude Dancing Not Part of Grandfathered Adult Use

600 Marshall Entertainment Concepts, LLC (600 Marshall) operates a nightclub in Memphis, Tennessee in the Central Business District (CBD) where adult uses have been prohibited since 1993. However, 600 Marshall was allowed to operate most forms of adult entertainment under a grandfather clause in the 1993 zoning ordinance. In an attempt to feature live nude dancers, 600 Marshall applied to the City of Memphis for a permit to present “compensated dancers” in the establishment.   In 2005, when 600 Marshall applied for the permit to feature nude dancers, it was granted conditioned on no nudity but then it was revoked because it was determined to be issued in error. 600 Marshall sought review of the decision to revoke the permit, and after a 3-person panel recommended reissuance of the permit conditioned on prohibition of adult activity, the Director of Police Services, Larry Godwin rejected the findings and denied the application. 600 Marshall appealed and after a two-day bench trial, the District Court found that 600 Marshall had not carried its burden of proving that nude dancing was grandfathered into the establishment with other adult entertainment. 600 Marshall appealed for the first time, and the Circuit Court remanded the case to determine whether there was lawful adult entertainment that did not require a dance permit prior to 1993, whether the prior owners had abandoned or discontinued the use, whether allowing a dance permit for nude dancing would violate Memphis City Code and whether 600 Marshall had any claims for relief under 42 U.S.C §1983. On remand to the district court, it was found that there was evidence of adult movie and drag performances sufficient to support a finding that adult entertainment activities not requiring a dance permit existed prior to 1993 and that the prior owners had not discontinued or abandoned the use. The Court rejected the constitutional claims of vagueness, deprivation of property rights and violation of procedural due process, and 600 Marshall appealed again.

600 Marshall asked the Circuit Court to either:  find that 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; find the “dance hall ordinance” is unconstitutional and void; find Godwin’s actions violated their first amendment and due process rights; remand to the District Court to grant injunctive relief enjoining Memphis from enforcing the dance hall ordinance; and find Memphis liable under §1983 and remand to determine the amount of damages.

With respect to the grandfathering of the nonconforming use, the 6th Circuit held that nude dancing is not an activity that can be grandfathered because it was not legally being conducted when the 1993 ordinance changed the zoning laws. The Court says raising this issue is putting “the proverbial cart before the horse.” Had nude dancing been legal in the district prior to the 1993 ordinance, then it could have been grandfathered in, but because it was illegal before the zoning change, no grandfathering could occur.

With respect to the vagueness challenge, the circuit court dismissed this regardless of whether reviewed as applied or facially, since 600 Marshall isn’t actually challenging any language in the statute, but instead essentially argued that because Memphis officials did not understand the ordinance and bungled the implementation it must be vague. The Court rejected this, saying the ordinance is relatively simple and provides for administrative and judicial appeals of bureaucratic decisions. 600 Marshall argued that because the ordinance is silent as to adult entertainment and nonconforming uses it is vague to which the Court held that while the ordinance may not be all encompassing, that does not make it vague.

As to the procedural due process claim based on Godwin’s rejection of reissuance of the dance permit, the Court held that because 600 Marshall had applied for a nude dancing permit and erroneously received a non-nude dancing permit, there was no violation of procedural due process. Had 600 Marshall reapplied for a non-nude dancing permit, which they did not, then a constitutional violation may be established, however there can be no interest in a property right that was never sought or applied for and Godwin was within the duties of his professional capacity to reject the reissuance of a permit that was never applied for.

600 Marshall Entertainment Concepts LLC v. City of Memphis, 705 F.3d 576 (6th Cir. 2013).

The opinion may be accessed at:  www.ca6.uscourts.gov/opinions.pdf/13a0026p-06.pdf


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