Jackson Township v. Dizzy Dottie, LLC

19 Pa. D. & C.5th 142
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedOctober 19, 2010
Docketno. 4487 CIVIL 2010
StatusPublished

This text of 19 Pa. D. & C.5th 142 (Jackson Township v. Dizzy Dottie, LLC) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson Township v. Dizzy Dottie, LLC, 19 Pa. D. & C.5th 142 (Pa. Super. Ct. 2010).

Opinion

VICAN, P.J.,

On June 25, 2010, defendant, Dizzy Dottie, LLC (hereafter “defendant”) filed a demand for final hearing pursuant to Pa. R.C.P. No. 1531(f)(1) in connection with the preliminary injunction issued on June 16, 20101; however, defendant failed to serve a copy of the demand upon the court. As noted in our June 30, 2010 order, we did not become aware of the demand for final hearing until June 29, 2010, when we received a copy of plaintiff’s opposition to defendant/ respondent’s demand for final hearing. Although we do not agree with defendant that the issue(s) in this case involves freedom of expression, we nevertheless granted appellant’s request for a final hearing and scheduled same for the first available date on the court’s calendar. The final hearing began on July 6, 2010 and concluded on September 16, 2010.2 On July 20, 2010, plaintiff/ petitioner Jackson Township (hereafter “plaintiff’) filed a petition to enjoin or abate violations of 68 Pa. C.S.A. § 5503(b) & (d). Upon review of the petition and after [145]*145consideration of the testimony previously presented, we concluded that violations of 58 Pa. C.S.A. § 5503(b) & (d) had occurred and, therefore, entered an order temporarily enjoining defendant from “continuing or permitting the continuation of any violation of chapter 55” Specifically, the order temporarily enjoined defendant from “permitting or allowing live adult entertainment in booths, cubicles, rooms or stalls, which are blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever, and which is not continuously open to viewing in its entirety from the common areas of the premises.” [Order, 7/28/10.] The matter was scheduled for the next hearing date on August 18, 2010.

Although the final hearing had not yet concluded, defendant filed an answer to complaint and new matters on August 10, 2010. On August 20, 2010, plaintiff filed a petition for supplemental preliminary injunctive relief and defendant filed an answer on August 24, 2010. Plaintiff filed a reply to new matter on August 30, 2010. The petition was scheduled to be heard at the next date set for final hearing, August 31, 2010. Defendant filed a motion for post hearing relief on August 31,2010. The conclusion of the final evidentiary hearing occurred on September 16, 2010.3 The parties filed their respective briefs on September 27, 2010. We are now ready to dispose of this matter.

DISCUSSION

We have several matters pending before the court at this time. In addition to its request for a permanent injunction, [146]*146plaintiff has filed a petition to enjoin or abate violations of 68 Pa. C.S.A. § 5503(b) & (d), as well as a petition for supplemental preliminary injunctive relief. Inasmuch as our decision with respect to plaintiff’s request for a permanent injunction will affect our ruling on these two petitions, we will address them at the conclusion of our discussion regarding plaintiff’s request for permanent injunctive relief.

“In order to establish a claim for a permanent injunction, the party must establish his or her clear right to relief.” J. C. Ehrlich Co., Inc. v. Martin, 979 A.2d 862, 864 (Pa. Super. 2009), citing Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700, 710 (Pa. Super. 2005) (citation omitted). “...[U] nlike a claim for a preliminary injunction, the party need not establish either irreparable harm or immediate relief and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.” Id.

I. The entertainment featured at Thrills constitutes “sexual conduct” and “sexually explicit nudity” which brings the business squarely within the jurisdiction of Zoning Ordinance 97-100.

Plaintiff contends that the business known as “Thrills” located at the comer of Route 715 and Doll Road in Reeders, Jackson Township, Monroe County, Pennsylvania, is still operating as an “adult cabaret” in violation of Jackson Township Zoning Ordinance 97-100 despite this court’s issuance of a preliminary injunction on June 16, 2010. We agree, but before reaching a conclusion as to whether Jackson Township is entitled to permanent injunctive relief against defendant, we feel that we must clarify the definition of an “adult cabaret” and determine, based on new evidence [147]*147presented during the final hearing, whether Thrills is operating as an adult cabaret.

In our prior opinion of June 16, 2010, we found that Thrills is an establishment, club, tavern, restaurant, theatre hall or room that is open to the general public and it offers live entertainment to its patrons. Consequently, we concluded that Thrills is an adult cabaret as that term is defined in the zoning ordinance. Since that time we have received additional evidence that may or may not change this finding.

While defendant denies that the entertainment at Thrills “features” erotic dancing by female dancers who are in various stages of dress and/or undress, defendant admits that it “permits” live adult entertainment to take place in its establishment. Therefore, before we review the abundance of evidence presented by the private investigators hired by plaintiff, we believe it would be prudent to define some of the terms found in the ordinance.

First, the definition of an adult cabaret under Ordinance 97-100 refers to: “an establishment, club, tavern, restaurant, theatre hall or room which features live entertainment distinguished or characterized by emphasis on sexual conduct, sexually explicit nudity and/or activities such as mud wrestling and dancing.” [Plaintiff’s exhibit 4-Jackson Township Zoning Ordinance No. 97-100, adopted 2/13/97 (emphasis added).] Using common, everyday definitions from an internet dictionary rather than from a statute, we define the highlighted terms as follows:

a) feature - (n) highlight, characteristic, trait; (v-1) include, present, introduce, highlight; (v-2) figure, appear, be included, star, play a part.
[148]*148b) permit - (not from the ordinance, but defendant’s term used to describe what the management of Thrills allows) (v) authorize, allow, consent, let, okay, sanction, give your blessing to; (n) license, certification, authorization.
c) authorization - (n) approval, agreement, sanction, permission, consent, endorsement.

The terms feature, permit and authorization can all be used to describe what the management at Thrills allows or expects from their dancers. First, the advertisements placed in the newspaper titled Focus, clearly show that Thrills’ adult nightclub presents, introduces, highlights, and thus “features”, live entertainment that includes lap dances and topless female dancers. [Plaintiff’s exhibits 9, 12, 13, & 1 A — focus newspaper.] Likewise, a large billboard located adjacent to Route 33 in Hamilton Township indicates that Thrills “presents”, “highlights”, and/or “features” nude female dancers. The definition of “feature” also means to “play a part”.

Defendant’s counsel asserts that the VIP dances provide the male patrons with a fantasy.

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Related

United States v. O'Brien
391 U.S. 367 (Supreme Court, 1968)
City of Renton v. Playtime Theatres, Inc.
475 U.S. 41 (Supreme Court, 1986)
Pestco, Inc. v. Associated Products, Inc.
880 A.2d 700 (Superior Court of Pennsylvania, 2005)
JC Ehrlich Co., Inc. v. Martin
979 A.2d 862 (Superior Court of Pennsylvania, 2009)
Izenson v. Izenson
418 A.2d 445 (Superior Court of Pennsylvania, 1980)

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Bluebook (online)
19 Pa. D. & C.5th 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-township-v-dizzy-dottie-llc-pactcomplmonroe-2010.