Frank D. Felix D/B/A Club Zeus v. Coleman A. Young, Mayor, City of Detroit
536 F.2d 1126
6th Cir.
1976
Check Treatment

*3 EDWARDS, Before CELEBREZZE and McCREE, Judges. Circuit CELEBREZZE, Circuit Judge. Appellant, Felix, Frank appeals D. grant summary judgment for Defend brought ants an action U.S.C. (1970). Appellant section 1983 owns Zeus, Club a bar in Detroit which features “topless” dancing. He brought this suit against city various officials1 seeking enjoin the municipal enforcement of certain present Department, 1. Named as Defendants and Depart- were the the Commissioner of the mayors Corpora- Building Safety, former the Detroit ment of Director- Counsel, Secretary City Planning tion the Commissioner of the Police Commission. ulated within 1000 uses feet of Club Zeus regulate location ordinances has not Appellant obtained a waiv adult entertainment. providing businesses er restriction ordin Group “D” Cabaret as Zeus The Club claims Appellant ance.4 that he need not by ordinance: described zoning seek waiver of restrictions be topless which features danc A cabaret the municipal regulating cause dancers, ers, dancers, strip go-go exotic “D” the location of Cabarets are impersonators, male or female pers, unconstitutional, both on their face and as entertainers.2 similar applied. He contends receiving a condition to cabaret As a they infringe because overbroad license, comply required expression the First forms restrictions, notably a special zoning with He also claims that the ordi Amendment. the establishment prohibition Equal nances violate Protection Clause *4 “D” Cabaret within 1000 feet of two Group the because of Fourteenth Amendment The District “regulated they classify according uses.”3 businesses to the other reg- expression public. three content the found there are other of offered Mich., 5-4-1, § Ordinance No. 744-G Adult Book Store 26, 1972. See also Ordinance No. October Adult Motion Picture Theater 32.0007. § 742-G Adult Mini Motion Picture Theater Cabaret require- No. lists the 744-G which 3. Ordinance Group ‘D’ Cabaret Group for a “D” incor- ments porates Cabaret license Establishment for the sale or intoxi- of beer city zoning provisions of the code cating liquor consumption reference: premises. any 5-4-2. It shall be unlawful for Sec. Hotels or motels cabaret, operate any person to club hereafter Pawnshops cabaret, Cabaret, Group or “D” limited caba- Pool halls or billiard city having the without first obtained ret in lodging houses Public proper license from the Bureau of therefore stores Secondhand No license Licenses Permits. shall be parlors Shoeshine applicant complied until the shall have issued Taxi halls dance requirements Zoning with the of Official Ordinance, this of article and initially The District Court made these find- applicable City of other ings denying preliminary injunc- order a City may tion. The Plan Commission waive Group No. includes “D” Cab- Ordinance 742-G zoning enforcement restrictions among specially regulated uses arets regulated concentration of uses: prohibits “D” location Cabaret Section 66.0101. regulated feet other uses: of two within may The Commission waive this locational Regulated Uses 66.0000 provision Stores, for Adult Book Adult Mo- development and execution of this In the Theatres, tion Picture Adult Pic- Mini Motion Ordinance, recognized it is are there Theaters, Group Cabarets, ture “D” or hotels which, very their uses because of na- some ture, motels, halls, pawnshops, pool or billiard recognized having objec- as are serious houses, stores, public lodging secondhand characteristics, operational particu- tionable larly parlors, taxi shoeshine or dance halls if the are concentrated when several of them following findings are made: thereby having certain circumstances under a) proposed contrary That the use will not be adjacent upon deleterious effect areas. a public nearby injurious to the interest or to necessary regulation Special uses is of these properties, spirit and that the and intent of insure that these adverse effects will not this Ordinance will be observed. blighting downgrading or contribute b) proposed enlarge use That will not surrounding neighborhood. spe- These development encourage the of a “skid row” regulations in this are itemized section. cial area. c) regulation primary for the The control the establishment an additional That purpose preventing a concentration regulated contrary in the area use will not be (i. any e. uses in one area not more any program neighborhood conserva- two such within one thousand feet than uses any program tion nor will it interfere with other would create such ad- of each effects). urban subject renewal. to these controls verse Uses d) applicable That all of this Or- as follows: dinance will be observed. Adult conducting short of complaint by full-blown trial. See responded to Appellees generally Summary judg Moore case be dismissed for fail 156.15. moving that only appropriate ment is where documents claim, 12(b)(6), Fed.R.Civ.P. ure to state genu tendered the Court disclose that no or, alternative, summary judg in the ine issue material fact remains to be granted. Fed.R.Civ.P. 56. See Diapulse, decided.6 United States v. pursuant 12(b)5 Judge, District Rule (6th 527 F.2d at 1011 Cir. See summary the motion as one treated also 6 Moore at 2060. A District K56.04[1] and considered the at judgment materials Judge may summary grant judgment only Appellees’ motion his making tached to prevailing party where the has demonstrat generally J. ruling. See 6 Moore FEDER ed a matter of law that he is entitled 1975) (2d AL PRACTICE at 2104 ed. 156.08 judgment on the merits. See Fed.R.Civ.P. Moore). (hereinafter chose 56(c). Co., Kennedy also v. See Silas Mason rely pleadings on did his not submit n. additional material to the The Dis Court. L.Ed. 1347 A court not resolve Judge found the trict ordinance constitu disputed issues fact on ruling a sum relying reasoning tional their face mary judgment motion. See United States Theatre, Gribbs, 373 of Nortown Diapulse, supra question at 1011. If a F.Supp. (E.D.Mich.1974), a case which remains, summary judg fact the motion for appeal since been reversed on has ment should be denied and the case should Theatres, name American Mini Inc. proceed to trial. See Bohn Aluminum & *5 Gribbs, (6th Cir.), grant F.2d 1014 cert. 518 Corp. Brass King v. Corp., Storm 303 F.2d 911, 214, 96 139 ed 423 U.S. S.Ct. 46 L.Ed.2d 425, (6th Cir. Since resolution of (1975). Appellant contends that the rever Appellant’s challenge to the facial validity opinion District Court sal of the Ameri purely legal ordinances raised ques compels the can Mini Theatres same result tions and did not disputed involve issues of charges He also that the in this case. Court fact, the District Court properly concluded granting for Appellees’ below in motion that the ripe issue was summary judg for judgment summary adequately failed to ment. his consider claim that the ordinances were ruling In on the facial validity the of as applied unconstitutional to him. ordinance the Judge adopted District the Summary judgment is a useful legal analysis Theatre, of Nortown reaching Gribbs, However, procedure supra.7 for the merits of a case in American Mini asserting If, a motion on the defense num- challenges 5. validity to the facial of the Detroit (6) plead- of bered dismiss for failure the regulating ordinances the location of adult upon state be a claim which relief can bookstores, picture adult motion and theaters granted, pleading matters outside the are picture opin- adult mini motion theaters. The by court, presented to and not excluded the jointly by Judges Kennedy ion was authored the motion shall be treated as one sum- Michigan and Gubow of the Eastern District of disposed mary judgment of purposes who had consolidated the cases for of 56, parties given in Rule and all shall be ruling summary judgment. on motions Al- present opportunity to all reasonable materi- they though acknowledged that the ordinances pertinent by al a made such motion Rule created classifications of businesses which re- 56. protected strain conduct the First Amend- 12(b). Fed.R.Civ.P. ment, Judges upheld the District the facial va- lidity judgment sought they shall be rendered the of ordinances and found that pleadings, depositions, an- compelling govern- if the were enacted forthwith to further the interrogatories, and admissions swers preserving mental interest of the residential affidavits, any, file, together if show with the quality neighborhoods of from the deleterious genuine as to no issue there is impact of a of concentration adult entertain- moving party is fact and that material ment business. The District Court an- voided judgment a of law. as matter entitled to a zoning prohibit- other Detroit restriction which 56(c). Fed.R.Civ.P. regulated ed location a use within 500 feet single dwelling rooming a granted unit. The In Court Nortown the District Court sum- imposed greater mary provision judgment held that this inci- for Defendants in number substantially presenting civil actions identical dental restriction First Amendment free- 114, Gribbs, drink.” U.S. at 395. panel S.Ct. supra, a divided v. Theatres the Twenty-first conceded that Amend He rejected legal conclusions this supersede does not other constitu that ment all and held the District Court reached liquor regu in the tional area of the loca regulating lations, g., see e. Wisconsin Constanti book stores theaters and adult of adult tion neau, 433, 400 U.S. S.Ct. L.Ed.2d creat they equal protection in violated (1971), regulations but stated that state infringed on unduly ed classifications area of the Twenty-first in the Amendment rights. The First presumption entitled to an enhanced the ordinances concluded that majority validity. 93 S.Ct. 390. according to businesses classified question purveyed of the materials character Although the Court admitted “ from accordingly ‘slip[ped] public infring- on their face time, circum neutrality place protected expression, majority ed on ” content,’ 518 a concern about into stances clear that First Amend- made it traditional of Chica Dept. quoting Police F.2d at not appropriate guide- standards are 92, 99, 92 Mosley, 408 U.S. go exercise regulatory lines for the of state the District Court If 33 L.Ed.2d under the Amend- authority this case disposition correct that ment: controlled resolution should be disagree We do not with the District cases, compelled we would earlier regula- determination Court’s light of Mini Theatres. American reverse their face proscribe tions on would some However, presentation there is a critical distinction forms of visual that would Thea this case and American Mini not be found obscene under Roth and between See, regula does subsequent This case not concern decisions of this Court. tres. Summerfield, restric g., book stores or theaters but e. Book Co. v. tion of Sunshine cabarets, 2 L.Ed.2d imposed on location tions [78 352] curiam, (1958), rev’g per U.S.App. dispense liquor.8 licensed establishments *6 358, (1957). 114 But we do interjects an addi D.C. 249 F.2d difference This crucial regulatory that the au- not believe state power of into the case—the element tional thority in this case was limited to either Twenty-first Amend the states problem dealing with the it confronted alcohol. In regulate the sale of the limits of within our decisions as to LaRue, 109, 93 409 S.Ct. obscenity, or in with the lim- accordance Rehn (1972), 342 Justice 390, L.Ed.2d 34 prescribed dealing its for with some Court, majority a of the writing for quist conduct in forms communicative three-judge court of a a decision reversed O’Brien, supra. States [United regu constitutionality upheld and O’Brien, 367, 1673, 391 U.S. S.Ct. Al Department the California lation of 672], L.Ed.2d prohibited Beverage Control which coholic and 116, sexual live entertainment explicitly 409 U.S. at 93 S.Ct. at 396. The Larue li establishments in bars and other majority apply films went on to a rational basis liquor the drink. Jus dispense regulations censed test to the state and found that regulation conclusion, Rehnquist noted that embodied in Department’s tice “[t]he the context that regulations, per- “not in certain sexual promulgated was the dispensation liquor by in a and the censoring performance a dramatic formances licensing ought premises in not to occur at ater, rather a context the drink but an irrational liquor by the have licenses not night clubs to sell bars preserve premises operator and stabi- than was essential and the thereof holds a doms neighborhoods. yearly residential lize such license from the state to sell beverages by glass patrons and where “cabaret” as: a No. 744-G defines 8. Ordinance space with entertainment any type Any place dancing. wherein food and away beverage given alcoholic is sold 118, prophylactic at 397. The broad banning sexually at S.Ct. rules one.” 409 U.S. regulations, explicit while entertainment at licensed bars Court stressed overbroad, were not directed at the cabarets long regulations repre so as the facially sent entertainment but at a reasonable exercise of a state’s speech element of Twenty-first authority and audie entertainers and are the conduct of the 117-18, rationally furtherance Noting related to the of le nce.9 *Id.at gitimate However, a state interests. if the Amendment affords Twenty-first that the state’s authority liquor to control traffic is as to choice means latitude state “wide implicated not end,” regulatory in a plan which Court permissible accomplish impinges on free expression, regulation agency state was within concluded that must scrutiny.10 withstand stricter See Do establishing prophylac a broad power its Inc., Inn, ran v. 922, Salem 932- “lewd” entertain prohibited which tic rule 933, 95 S.Ct. 45 L.Ed.2d 648 premises, though even licensed ment on might termed be some entertainment We find that the Detroit ordinance protected speech and actually is “lewd” establishing licensing requirements constitutionally proscribed could not Group “D” Cabarets was enacted author Id. at instances. S.Ct. 390. specific ity Amendment and so 5, 93 390. The Cf. id. at 119 n. Su the relaxed review standard of in California regarded as “critical” the preme Court also Accord, v. Larue applicable. is Paladino v. that the state had not forbidden these fact Omaha, (8th F.2d Cir. only the board” performances “across but Although Michigan liquor has a control liquor to sell at establishments licensed ultimately commission which responsible is 118, 93 the drink. Id. at S.Ct. 390. regulation for the traffic in the state, Supreme jurisdiction v. Larue the not In California exclusive. The recognized power Michigan Supreme the broad has Court sanctioned the regulate liquor may the states to sale of enactment of municipal regulat liquor.11 e.g., local traffic in See Mutch outweigh any First Amendment interest Kalamazoo, state Mich. dancing. may promulgate A all v. N.W.2d nude regulations “The substance struck 409 U.S. at 93 S.Ct. at 397. prohibits nightclubs down licensed bars or 10. Thus both the District Court in Nortown displaying, from either the form of movies Theatre, Gribbs, supra and the entertainment, “performances” or live majority opinions dissenting in American gross sexuality partake than of com- more of Gribbs, supra 1019, 1023, Mini Theatres v. agree we munication. While that at least applied scrutiny strict standard of to ordi- performances some of the to which these regulating nances the location of adult book address themselves are within *7 stores and adult protection theaters. the limits of the constitutional expression, the critical fact is that freedom of perform- Tally forbidden these City California has not Mich.App.328, 11. In merely pro- across board. It has ances (Ct.App.1974), 220 N.W.2d 778 aff’d on rehear- performances scribed such establishments Mich.App. (Ct.App. 227 N.W.2d 214 liquor by sell the drink. it licenses to 1975), Michigan Appeals Court affirmed light, we validity Viewed in this conceive the facial Ordinance No. authority this area State’s somewhat 744-G in the First face of a Amendment chal- the District broader than did Court. This is lenge requirements licensing Group to the say perform- that all such conduct and not Relying Larue, “D” Cabarets. on California v. protection ance are without of the First Michigan City Court found that the derived and Fourteenth Amendments. But we would power of home rule from the state and that poorly the interests for which serve both question the ordinance was a reasonable may validly seek vindication State and the exercise of Detroit’s Amendment by interests First and Four- authority regulate liquor Id., local traffic. teenth Amendments were we to insist 220 N.W.2d at See also Crownover v. revelries that sort of bacchanalian Musick, Cal.Rptr. Cal.3d Department sought prevent by li- (1974); City Bay, P.2d 497 Manos of Green quor regulations were constitutional F.Supp. (E.D.Wis.1974). equivalent scantily performance troupe in a clad ballet theater.” zoning The restrictions 248-49 Appellee’s Attached to motion for have been Group incorpo “D” Cabarets summary judgment were numerous affida requirements reference into the rated vits from planners, experts urban on real a cabaret license.12 If the values, businessmen, estate reporters and restricting Group the location of ‘D’ Caba ordinary citizens who attested to the delete legitimate a reasonable relation to rets bear consequences rious high which a concentra interests, municipal validity the facial tion of offering businesses adult entertain upheld. ordinances must be ment could have on the character of urban neighborhoods. Appellant chose not to sub in question The ordinances were enacted mit counter-affidavits. On the face of the growing urban to combat crisis—the de record, we cannot conclude that the chal cay neighborhoods of residential into crime- lenged regulating the location of neighbor infested “no-man’s lands” where Group “D” Cabarets are irrational or that hood taverns have been transformed into they reasonably are not related to valid topless apartments bars and have deterio municipal interests. The restrictions are flophouses. rated into The Detroit Com not imposed on adult entertainment per se Council, by the proliferation mon alarmed physical but on the location of cabarets which attract of businesses the lowest stra which feature adult entertainment. In this society tum of and the concomitant decline sense, regulate the ordinances seek to “con quality city in the residential of inner “expression.”15 duct” and not See Califor neighborhoods, challenged enacted the ordi Larue, 117-18, nia v. supra, 409 in the future the location nances to control Larue, light In of California v. offering of establishments adult entertainm we must conclude that the restrictions are plan The Detroit was to deconcen ent.13 represent constitutional on their face and offering the locations of cabarets sex trate appropriate city’s an exercise of the Twen ually explicit thereby entertainment ty-first authority regulate impact the harmful diffuse a cluster the location of establishments licensed to these establishments would have sell municipal within boundaries. In neighborhood. of a residential character To fact, the Detroit ordinances are less restric prohibition this end the Council enacted the regulation upheld by tive than the the Su location of a “D” Cabaret preme in Larue. Court The California rule regulated within 1000 feet of two other dancing banned nude at all locations li uses.14 censed to liquor by distribute the drink supra. Supreme 12. See note Court stated in United States v. O’Brien, 367, 383, 1673, 1682, 88 S.Ct. zoning not extend to 13. The restrictions do (1968): 20 L.Ed.2d 672 non-conforming prior uses established to enact- principle It is a familiar of constitutional of the ordinances. law that this Court will not strike down an § 14. See Ordinance No. 742-G 66.0000. otherwise constitutional statute on the basis alleged legislative Council also inserted section 66.0103 which prohibited of an illicit motive. As the Group “D” the location of a Cabaret long ago stated: single dwelling rooming within 500 feet of a begin- “The decisions of this court from the unit. This section was declared unconstitution- ning support lend no whatever to the as- al the District Court Nortown Theatre sumption judiciary may that the restrain the Gribbs, 369-70, supra at but has since *8 Inc. v. power assumption exercise of lawful amended. been wrongful purpose that a has motive power McCray caused the to be exerted.” v. 15. The motives of the Common in en- Council States, 27, 769, United 195 U.S. 56 S.Ct. [24 acting question largely the ordinances in 776, (1904). 49 L.Ed. 78] inquiry. Although irrelevant to our we are principle This fundamental of constitutional by legislative statement of the bound Council’s adjudication many was reaffirmed and the acts, only purpose for the the effect of the by cases were collected Mr. Justice Brandéis legislation question of its is relevant to the California, for the Arizona v. 283 constitutionality underly- and not the motives 423, 522, U.S. 455 75 L.Ed. S.Ct. [51 1154] its enactment. See American Mini Thea- tres, Gribbs, (1931). supra at 1019. As the 1134 390, and, while upholding validity to offer S.Ct. the permits cabarets

whereas liquor regulation their licen California on long entertainment so as adult “ face, recognized he the ‘that possibility zoning code. The comply city with the sees specific applications future of concluding [the statute] was correct District Court may engender problems concrete of consti the restricting location the ordinances that . tutional dimension. . . 409 at U.S. on “D” are constitutional Class Cabarets 5, 397, 119 n. S.Ct. at & quoting Seagram 93 face. their Hostetter, 35, 52, Sons v. 384 S.Ct. U.S. 86 complaint charged also in his Appellant 1254, (1966). 16 L.Ed.2d 336 Thus Califor zoning provi- special licensing that argu nia v. Larue does not foreclose the Cabarets, Group though “D” even sions an otherwise un that valid ordinance face, on their could not con- constitutional Twenty-first may der the be Amendment stitutionally applied be to him because the applied way in such a as to on infringe Club Zeus is entertainment at the rights protected by the First Amendment.16 by the First and en- protected Amendment Larue, supra See also at 120 n. this instance of the ordinances in forcement 1, (Stewart, J., concurring). 93 390 S.Ct. unduly infringe right to free on his would Appellees argue Appellant’s the District expression. argues He come failure to forward with additional Judge granted Appellees’ for sum- motion allegations support facts to in the com mary judgment consider- adequate without right foreclose plaint should his to contest constitutionality the ordi- ation grant summary judgment. They applied. agree. as We nances contend that the burden was is An ordinance which not over- respond to come forward to the affida be its face nevertheless un broad they vits submitted that he should not is applied as if it enforced constitutional solely on have relied his sur pleadings to Grayned Cf. protected activity. summary judgment. vive argument, This Rockford, 1, City of 106 n. however, is misconceived because it reverses (1972). S.Ct. L.Ed.2d proper proof burden of on a motion for Rehnquist restricted his carefully Justice summary judgment. 56(c) Under Rule to the facial in California v. Larue remarks moving party always has the initial burden validity enacted under the showing the absence genuine of a issue Twenty-first at Amendment. U.S. See fact material and that he is entitled to 5,n. 390. He admitted that the judgment as a matter of law. See Adickes Twenty-first super Co., Amendment does not 144, 159-60, v. Kress & U.S. in the provisions other constitutional sede 26 L.Ed.2d 142 gen See liquor regulation, erally area 6 Moore When the initial H56.15[3]. Douglas dissenting opinion Justice in his passes muster under the First Amendment example offered a a case where Larue classic illegal performed not made because it is in a facially licensing provision valid garden. beer Twenty-first may be unconstitu- (footnote 409 U.S. at 93 S.Ct. at 398 omit- by tionally applied activity protected to an face, ted). reg- On their Detroit ordinances First Amendment: ulating applied “D” Cabarets could be might pro- It is conceivable that a licensee dispense by dinner licensed theaters garden by play— duce in a served him a present performances which drink Shakespearean perhaps in a more of one Night” It”, “Twelfth or “As You Like two setting example, modern “fon- which for —in Shakespearean comedies which feature sexual dling” appears. I the sense of the rules impersonation, plays or more modern Which imagine performance cannot such sexuality, contain overt but which are never- constitutionally punished could re- theless the First Amendment. strained, power though police even Conceivably, enforcement of the ordinances in State is now buttressed present prob- could instances “concrete For, Court, Amendment. stated lems of constitutional dimension” Jus- supersede all Amendment did not other Rehnquist tice alluded to in Larue. 409 U.S. *9 constitutional the area li- “in 119 n. 93 S.Ct. 390. quor regulations.” Certainly play supported by presented by affidavit, additional facts were been either has burden then party must materials, non-moving stipulation otherwise as to the the exact specific facts which with of the at provided nature entertainment the come forward there is a the court Appellant’s to cabaret. admission that the demonstrate en However, the fact trial.17 for genuine topless dancing issue tertainment involved does are uncontro not, itself, affidavits the movant’s remove from the case the that sum necessarily not mean does First verted ambit of the Amendment since even ul granted should be mary judgment dancing may, nude under some circum —the propriety of proving the stances, timate burden protec be entitled to constitutional moving judgment Inc., remains summary Inn, Doran v. supra, tion. See Salem Co., supra 2561; Adickes Kress & U.S, See party.18 at 1598; 159-60, Shappell, Fitzke v. Larue, at 90 S.Ct. supra, 409 at U.S. S.Ct. 390. 1972). (6th Inn, Cir. As the Su Frank, 408 F.2d 1072 Inc. v. also Salem F.2d See in observed Adickes v. Kress & preme Court (2d 1974), part, Cir. aff’d in 21 n. rev’d Co., the 1963 Advisory Inn, Committee on Inc., the sub nom. Doran v. part in Salem rejected 56 expressly to Rule Amendments supra. (e) the

the that subdivision altered idea many As we have stated on oc proof in a motion ordinary standards casions, adequate without an factual basis summary judgment: record, should a District Court sup- ‘[wjhere evidentiary matter summary hesitant extremely grant judg to port motion not establish of the does issues. important complex See ment on issue, summary genuine absence Tee-Pak, Paper Co., Regis g., e. St. op- must be denied even if no judgment (6th Cir. See 491 F.2d posing evidentiary presented.’ matter is 2305. The 6 Moore ade generally 11.06 (emphasis at 1610 impor record particularly is quacy original), quoting Advisory Committee called on to decide where court is tant on 1963 Amendment to Rule 56. *10 (b) particularly vigilant protection be in the The actual or simulated “touching, caressing or right expression fondling breast, an individual’s to free on the but- tocks, genitals”; anus or municipality where a seeks to enforce ordi- (c) which admittedly protected nances reach The actual or simulated “displaying hair, pubic anus, activities on their face. geni- vulva or tals”; We find that the Detroit regu- (d) permitting by The a licensee of lating the location Group “D” Cabarets “any person to remain in or upon the are constitutional on their face and summa- premises licensed who exposes public judgment ry as to this appropri- issue was any portion view genitals of his or her or ate. The ordinances were pursuant enacted anus”; and, by companion section, authority granted by (e) displaying The pictures films or Amendment and are rationally related to depicting acts a performance live legitimate municipal interest pre- prohibited by regulations serving the residential character of urban quoted above. 143.4, Rules 143.3and neighborhoods. Summary judgment should 111-12, U.S. at 93 S.Ct. at 394. granted, however, not have been The ordinance in the case before us af- issue of the constitutionality of the ordi- fects bars or other liquor controlled busi- applied nances as in this case because the nesses dancers, that feature “topless go-go inadequate record was to determine wheth- dancers, dancers, exotic strippers, male or er the activities engaged by female impersonators, or similar entertain- protected by were the First Amendment ers.” Michigan Ordinance No. whether enforcement of the ordinances 5-4-1, 744-G October § unduly infringe would on the enjoyment of Appellant’s right expression. to free LaRue regulation holds that a that pro- specific hibits explicit kinds of sexual con- part, Affirmed in reversed in part and premises duct on liquor where is served will remanded. not be held facially unconstitutional merely because some of the conduct that it compre- McCREE, Circuit Judge (dissenting). hends is by the First Amendment. In appeal, however, this ordinance the. lim- I respectfully dissent from the majority’s its the bar presentation owner’s of certain holding decision the challenged ordinance to categories of entertainers whose conduct facially constitutional under the Twenty- may not gross involve sexuality first Amendment. more than communication in the medium of In California v. LaRue, 93 entertainment. (1972), L.Ed.2d 342 the Su- Another perhaps important more dis- preme Court regulations considered issued tinction exists between the Detroit ordi- by the Department California of Alcoholic nance and the regulations con- Beverage prohibited Control that perform- sidered in LaRue. The Detroit ordinance ances male or female entertainers that appears to be more concerned with regulat- partook “more gross sexuality than of ing land use than it is with regulating the communication.” 409 U.S. at 93 S.Ct. delivery and use under the Twen- at 391. portions The held ty-first Amendment. This is evident from facially constitutional Supreme the fact that the Detroit ordinance does not prohibited following kinds of con- forbid a licensed bar from presenting the premises: duct on licensed proscribed entertainers if neigh- 51%of the (a) performance acts, or simu- living bors or doing business within 500 feet acts, lated intercourse, of “sexual mastur- of the proposed location approved or if bation, sodomy, bestiality, copulation, oral there are fewer than two other regu- uses flagellation sexual acts which are 1,000 lated the ordinance within feet of law”; prohibited by the proposed location. hand, On the other *11 dancers, go-go dancers, Topless strip- tion. pro- regulations forbade the California impersonators places, pers, with- exotic dancers at all business scribed conduct more, not, Although it dispensed. was without obscene. where exception, out performers more of these possible one or giving blanket LaRue as read I do not conduct, obscene the ordi- might engage in regulate under the to authority to states restricted to such entertain- nance is not every kind of Twenty-first Amendment ment, definite standards nor does it afford When a in bars. by performers conduct obscenity. Michigan The courts do not perform- barroom to control state seeks “authoritatively construed” appear to have gross sexuality “more of partake ances it is limit- challenged ordinance so that communication,” Twenty-first than Tal- particular to obscene conduct. Cf. ed charge of insulate from a will Amendment 328, 220 N.W.2d ley Mich.App. v. regulations that unconstitutionality facial 261, (1974), Mich.App. rehearing, regulated gross sexuality acts of prohibit 227 N.W.2d 214 premises. like not, however, authorize does Accordingly, I view this ordinance as be- here. attacked the one it ing grossly facially overbroad because expression all forms of attempts regulate 15, California, 413 U.S. In Miller by listed entertainers. I do not read LaRue (1973), the L.Ed.2d 419 Su- uphold this court to such an permitting statutes de- indicated Court preme face of such substantial obscenity must be care- ordinance in the signed regulate Indeed, sexual conduct overbreadth. fully drawn. “must proscribed or regulated to be

sought applicable state specifically defined con-

law, authoritatively or as written at 2611. 93 S.Ct.

strued.” statute could of what a state examples As America, UNITED STATES suggested: the Court regulation, define Plaintiff-Appellee, or Patently representations offensive (a) acts, ultimate sexual descriptions of actual or simu- perverted, normal Bobby BROOKS, Lee lated. Defendant-Appellant. representations (b) Patently offensive No. 75-1332. masturbation, excre- descriptions of Appeals, United States functions, and lewd exhibition tory Sixth Circuit. genitals. at 2615. Argued Feb. 1976. in LaRue The drafters June Decided by the have been influenced appear As Rehearing Amended on Denial of Miller, they because suggestions Court’s Sept. conduct consistent with regulate tried Although regula- formula. the Miller down in the boundaries set

tion exceeded

Miller, Supreme Court held fatal because of the variance was not

slight regulate dispensation of authority to

state’s

liquor. however, City of De- appeal,

In this the first hurdle to surmount

troit failed conduct. It regulate sexual

attempting the kind of define” “specifically

failed subject regula- conduct

sexual Notes law without ben questions of constitutional 2) 6 (part their a trial. Moore Appellees failed to meet efit of See H56[10] have on the issue of the constitu should been initial burden at 56-772-77. allega prove his tionality applied. given opportunity of the ordinances as to provi special to for sum enforcement of the affidavits attached the motion tion that exclusively relating were addressed to “D” Cabarets this mary judgment sions infringe protect validity unduly of the facial would the issue instance attempt dis evidence on speech. No was made to ed Without reliable ordinances. pute the enter as to nature of the Appellant’s contention that the record the exact pro by Appellant, at Club Zeus was entertainment provided tainment offered adjudicated speech and that enforcement of District Court could not have tected unduly him in claim were Appellant’s would that the ordinances fringe rights. No as A court should applied. his constitutional unconstitutional summary judgment ry judgment, primary 17. When a motion for is remains on burden rule, supported right judg- moving party prove made in this his party upon an adverse not rest the mere ment: allegations pleading, or denials of his but his oppos- always perilous for the It has been response, pro- affidavits or as otherwise any countering proffer ing party neither rule, specific in this vided must set forth 56(f) evidentiary nor file affidavit. materials showing genuine there is a issue facts par- rightly peril Yet the continues. And the respond, summary not If he does so for trial. ty moving summary judgment has appropriate, judgment, if shall be entered judg- to show that he is entitled burden against him. principles; and if he ment under established 56(e). Fed.R.Civ.P. discharge burden then he is does not not judgment. an No defense to insuf- entitled is an element of risk to 18. While there jl showing required. respond non-moving party ficient 6 Moore 56.- when fails to he for summa- at 2824-25.

Notes

[2] materials attached a motion