Geaneas v. Willets

911 F.2d 579, 1990 WL 120732
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 10, 1990
DocketNo. 89-3308
StatusPublished
Cited by18 cases

This text of 911 F.2d 579 (Geaneas v. Willets) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geaneas v. Willets, 911 F.2d 579, 1990 WL 120732 (11th Cir. 1990).

Opinion

TJOFLAT, Chief Judge:

The plaintiffs in this case own or manage bars providing nude dancing, or work in those establishments as nude dancers or bartenders. They brought suit in federal district court under 42 U.S.C. § 1983 (1988) claiming that a Daytona Beach ordinance, which prohibits exposure of certain body parts in establishments dealing in alcohol, violated their rights under the first and fourteenth amendments. The district court granted partial summary judgment for the defendants and, following a bench trial on the remaining issues, dismissed the plaintiffs’ case. The plaintiffs appeal, and we affirm. We also hold that the plaintiffs’ appeal is frivolous under Rule 38, Fed.R. App.P. 38.

I.

In 1981, the City of Daytona Beach enacted an ordinance prohibiting exposure of certain body parts in establishments dealing in alcoholic beverages.1 Daytona [581]*581Beach police then began enforcing the ordinance. They arrested dancers, including two plaintiffs in this case, at several “topless bars” for dancing partially nude in violation of the ordinance. They arrested bartenders and managers, including plaintiffs in this case, who were working at establishments when nude-dancing arrests were made. They cited owners, including plaintiffs in this case, for permitting nude dancing in their establishments, and they ordered the owner of one establishment, a plaintiff here as well, to remove graphic photographs from his walls and to stop selling calendars featuring pictures of his exotic dancers.

In the prosecutions that followed, the state courts issued various interpretations of the ordinance. In the case of one of the dancers involved in the present action, the county court dismissed the charges against her,2 holding that the ordinance’s prohibition of exposed female breasts was over-broad and that the ordinance proscribed exposure of only the entire buttocks, and nothing less. In 1984, the state district court of appeal held the ordinance unconstitutional on grounds of vagueness and over-breadth. See Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla.Dist.Ct.App.1984). A year later, the Florida Supreme Court reversed that court and upheld the ordinance as constitutional. See City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla.1985). The supreme court’s decision in Del Percio, however, specifically addressed only the ordinance’s prohibition on exposed breasts, which it defined as exposure of the breast below an imaginary line drawn across the top of the areolae. See id. at 200. The decision did not define the ordinance’s prohibition on exposed buttocks.

In May 1983, the plaintiffs filed this section 1983 suit in federal district court. They claimed that the ordinance violated their right of free expression under the first amendment, incorporated under the fourteenth amendment, and their rights to due process and equal protection of the law under the fourteenth amendment. Specifically, the plaintiffs claimed that the ordinance was overbroad and void for vagueness under the first amendment and that the City had selectively enforced the ordinance against “topless bars” in violation of the fourteenth amendment. The plaintiffs requested a declaratory judgment, injunc-tive relief, and damages.

On the defendant’s motion for partial summary judgment, the district court held that the ordinance was constitutionally valid on its face. In the court’s view, the ordinance was a valid exercise of the state’s broad authority to regulate alcohol sales under the twenty-first amendment, and, in light of the Florida Supreme Court’s decision in Del Percio, the ordinance was not unconstitutionally broad. The district court, however, like the Florida Supreme Court in Del Percio, addressed only the ordinance’s proscription on exposed breasts. The district court also denied summary judgment on the defendant’s affirmative defense that the Del Percio decision rendered the present case res judi-[582]*582cata.3

The case then went to trial before the court on the remaining claims. The court held that, although the plaintiffs had proved they were singled out for prosecution, they had not shown that this prosecution was invidious or conducted in bad faith. The court thus denied their claim. In addition, the court upheld the constitutionality of the ordinance’s prohibition on exposed buttocks, rejecting the plaintiff's contention that the provision was impermis-sibly vague. The district court, therefore, dismissed the plaintiffs’ case. 715 F.Supp. 334.

On appeal, the plaintiffs attack the district court’s decision on four grounds: they claim that (1) the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment; (2) the court erred in denying the plaintiffs’ claim that the ordinance’s provisions were overbroad; (3) the court erred in denying the plaintiffs’ void-for-vagueness claim; and (4) the court erred in denying the plaintiffs’ selective enforcement claim. We hold that the plaintiffs’ claims entirely lack merit. In addition, because the plaintiffs’ contentions are no more than conclusory assertions, unsupported by argument or reason, we hold that this appeal is frivolous under Rule 38, and instruct the district court to award the appellee double costs and attorneys’ fees for this appeal.

II.

A.

The plaintiffs claim that the district court erred in analyzing the ordinance under the twenty-first amendment rather than under the first amendment.4 Under the Florida Supreme Court’s decision in Del Percio and existing United States Supreme Court and Eleventh Circuit precedent, this argument is clearly foreclosed.

In Del Percio, the court held that, as a matter of state law, “Florida municipalities ... have the authority to exercise the regulatory power of the twenty-first amendment recognized in New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981).” 476 So.2d at 201. In Bellanca, the Supreme Court held that, although nude dancing implicates the first amendment, the states’ broad powers under the twenty-first amendment to regulate alcohol outweigh any first amendment interest in nude dancing. 452 U.S. at 717, 101 S.Ct. at 2601 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975)); see City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 95-96, 107 S.Ct. 383, 385, 93 L.Ed.2d 334 (1986); Jorgenson v. County of Volusia, 846 F.2d 1350, 1351 (11th Cir.1988); Lanier v. City of Newton, Ala., 842 F.2d 253, 255 (11th Cir.1988); Fillingim v. Boone, 835 F.2d 1389, 1394 (11th Cir.1988);

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Geaneas v. Willets
911 F.2d 579 (Eleventh Circuit, 1990)

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Bluebook (online)
911 F.2d 579, 1990 WL 120732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geaneas-v-willets-ca11-1990.