AMERICAN ENTERTAINERS, L.L.C., a North Carolina limited liability company, d/b/a Gentleman's Playground, Plaintiff - Appellant,
CITY OF ROCKY MOUNT, NORTH CAROLINA, Defendant-Appellee.
Argued: January 24, 2018
from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:14-cv-00438-D)
Scott Edinger, BENJAMIN, AARONSON, EDINGER & PATANZO, PA,
Gainesville, Florida, for Appellant.
Nicholas Ellis, POYNER SPRUILL LLP, Rocky Mount, North
Carolina, for Appellee.
AGEE, WYNN, and THACKER, Circuit Judges.
in part and vacated and remanded in part by published
City of Rocky Mount, North Carolina ("Rocky
Mount"), regulates "sexually oriented
businesses" by requiring those businesses to obtain a
license prior to operation. Appellant American Entertainers,
LLC ("American Entertainers"), an exotic dancing
venue, argues that the licensing regulation, in its entirety,
violates the First Amendment on overbreadth grounds because
it potentially requires licensure of venues that display
"mainstream" performances such as ballets,
concerts, and theatrical productions. In the alternative,
American Entertainers contends that one of the licensing
regulation's denial provisions is an unconstitutional
prior restraint because it vests "unbridled
discretion" in a governmental official to deny license
applications and that another of the denial provisions
violates the Equal Protection Clause of the Fourteenth
Amendment by barring eighteen- to twenty-one-year-olds from
owning "sexually oriented businesses." The district
court rejected all three claims.
reasons that follow, we affirm the district court's
denial of American Entertainers' First Amendment
overbreadth challenge and Equal Protection challenge. We
conclude, however, that the district court erred in rejecting
American Entertainers' prior restraint claim. By
authorizing the police chief to deny a license if the chief
believes the applicant will fail to comply with "all
applicable laws, " the challenged denial provision is
insufficiently "narrow, objective, and definite" to
pass constitutional muster. Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 151 (1969). We therefore
strike as unconstitutional the relevant denial provision from
the Ordinance and remand to the district court to consider
whether and to what extent the provision is severable from
the remainder of the Ordinance.
we affirm in part, vacate in part, and remand the case to the
district court for further proceedings consistent with this
2002, American Entertainers has operated within Rocky
Mount's limits a business known as "Gentleman's
Playground." Gentleman's Playground features exotic
dancers, whose scant attire has varied throughout its sixteen
years of operation. Rocky Mount and American Entertainers
previously have had disputes regarding the revealing nature
of Gentleman's Playground's dancers' attire,
including a voluntarily dismissed lawsuit back in 2003.
Although years subsequently passed without incident, a 2014
police investigation regarding Gentleman's Playground
caused Rocky Mount to seek to enforce against American
Entertainers its sexually oriented business ordinance. Rocky
Mount, N.C., Code of Ordinances § 13-270 et
seq. [hereinafter Ordinance].
Ordinance constitutes Chapter 13, Article VII of Rocky
Mount's City Code, and addresses "the regulatory
licensing requirements for sexually oriented businesses
located within the city." § 13-270(a). Rocky Mount
enacted the Ordinance because "[s]exually oriented
businesses . . . are recognized as having serious
objectionable operational characteristics" and
"[s]tudies and experiences in other municipalities have
shown that lower property values and increased crime rates
tend to accompany and are brought about by sexually oriented
businesses." Id. Accordingly, "[t]he city
council f[ou]nd that regulation . . . [wa]s necessary to
insure that these adverse secondary effects do not contribute
to the blighting of surrounding neighborhoods and to regulate
acts, omissions or conditions detrimental to the health,
safety or welfare and the peace and dignity of the
city." Id. The Ordinance's stated goal is
to "balanc[e] . . . the legitimate ends of the
community, " and requires any sexually oriented business
"to carry its share of financing the administrative and
enforcement activities." § 13-270(b).
Ordinance defines a sexually oriented business as, in
pertinent part, "any . . . adult cabaret . . .
as defined in this article." § 13-271 (emphasis
added). An "adult cabaret, " in turn, is defined as
"any retail business or private club as defined in North
Carolina General Statutes § 18B-1000 which: (a) serves
food or beverages, or permits the consumption of food or
beverages; and (b) regularly provides or has available for
viewing by its patrons or members adult live
entertainment." Id. (emphasis added). The
term "adult live entertainment" means "any
performance of or involving the actual presence of real
people which exhibits specified sexual activities or
specified anatomical areas, as defined in this article."
Id. (emphasis added). The Ordinance defines
"specified sexual activities" as, in relevant part,
the "[f]ondling or other erotic touching of human
genitals, pubic regions, buttocks or female breasts."
the Ordinance contains six license-denial provisions. §
13-273(d). The two provisions at issue in this appeal permit
Rocky Mount's police chief to deny a license if either
(1) "the operation [of the sexually oriented business],
as proposed by the applicant, if permitted, would not comply
with all applicable laws, including, but not limited to, the
city's building, zoning, and health regulations;" or
(2) any license applicants or other specified business
principals are "not over the age of twenty-one . . .
years." § 13-273(d)(2), (d)(6).
Mount sought to enforce the Ordinance against American
Entertainers after police investigators learned that dancers
at Gentleman's Playground were providing "adult live
entertainment" within the meaning of the Ordinance. In
response, American Entertainers filed a Complaint in the
Eastern District of North Carolina challenging, among other
things, the application and constitutionality of the
Ordinance under the First Amendment and the Equal Protection
the close of discovery, the parties filed cross-motions for
summary judgment. The district court granted in part and
denied in part the motions, resolving in Rocky Mount's
favor American Entertainers' constitutional claims.
American Entertainers timely filed a motion for rehearing,
which the district court denied. American Entertainers timely
appealed three constitutional determinations to this Court.
Entertainers asserts three arguments on appeal, that the
Ordinance: (A) is unconstitutionally overbroad; (B) imposes
an unconstitutional prior restraint by granting Rocky
Mount's police chief unfettered discretion to deny a
permit; and (C) violates the First Amendment and Equal
Protection Clause by prohibiting from being owners, officers,
or directors of a sexually oriented business individuals
between eighteen and twenty-one years of age. Because this
appeal arises from ...