Knudtson v. City of Coates

519 N.W.2d 166, 1994 Minn. LEXIS 517, 1994 WL 314620

• Court: Supreme Court of Minnesota
• Decided: June 30, 1994
• Docket: C2-92-2533
• Status: Published

Opinions

OPINION

SIMONETT, Justice.

Respondent in this case is a bar owner who challenges two Coates city ordinances prohibiting nudity in licensed liquor establishments as unconstitutional on their face and as applied to her. She alleges that the ordinances violate the right to freedom of expression as guaranteed by Art. 1, § 3 of the Minnesota Constitution.¹ The City of Coates asserts that the ordinances are constitutional because states may ban nudity through a liquor regulatory scheme pursuant to the Twenty-first Amendment to the federal constitution and that the ordinances are a valid exercise of the police power. The district court found the ordinances unconstitutional under the state constitution and permanently enjoined their enforcement. The court of appeals affirmed. 506 N.W.2d 29. We reverse.

Respondent Eileen Knudtson is the sole proprietor of Jake’s Bar in the City of Coates in Dakota County. In November 1991, she applied to the city for a liquor license. She obtained a 5-month liquor license on December 1 which was to expire on April 30, 1992. Shortly after opening the bar in January 1992, Knudtson began presenting nude entertainment. In April 1992, Knudtson filed a timely application to renew her license. She received a letter from the city attorney advising her of the meeting at which her license renewal would be considered which stated:

The Council will be listening to evidence that there are violations of the City’s Liquor Ordinance taking place at the bar. Specifically, the violations center around the nude dancing taking place at the bar.

The Coates City Council held a public hearing to consider non-renewal of Knudtson’s license. The Council voted not to renew Knudtson’s liquor license because she was violating the Coates ordinances prohibiting nudity in licensed liquor establishments.²

Knudtson challenged the constitutionality of the ordinances in district court. The district court granted her motions for a temporary restraining order and then a temporary injunction which prevents the city from enforcing the ordinances or from punishing Knudtson for selling liquor without a license. The city admitted most of the allegations in Knudtson’s complaint, including her allegation that she was denied her license renewal “for the sole reason that [she] was permitting nude dancing on the premises in violation of Coates City Ordinance Section 603.02.” The city contested only her allegation that the ordinances are unconstitutional.

At trial, Knudtson presented testimony of a former member of the City Council concerning the purpose of the ordinances. Hugo Groth testified that the ordinances were enacted in 1978 after city council members received numerous complaints that nude dancing was occurring at the bar now owned by Knudtson, then under other ownership. Groth recalled that the council adopted the ordinance to stop the former owner of the bar from providing nude dancing.

The district court found that the unrebut-ted testimony of Hugo Groth established that “the ordinances were enacted solely in response to community complaints regarding the nude dancing and were aimed at prohibiting this conduct” and that the city had presented no evidence of legislative intent or purpose. The trial court also made findings of fact that no evidence was presented during trial showing any increase in crime in and around Jake’s Bar as a result of the nude dancing performed there, nor was any evidence presented that dancers mingle with patrons or that any “sexual improprieties” had occurred as a result of the dancing. The trial court also found that no one is forced to view the performances who prefers not to.

The trial court concluded that the ordinances violate Art 1, § 3 of the Minnesota Constitution. The court invalidated the ordinances on the basis that the Twenty-first Amendment to the federal constitution cannot diminish the free speech guarantees in the state constitution. The trial court also found that the ordinances were not a valid exercise of the city’s police power under Art 1, § 2 of the Minnesota Constitution because they were enacted to prohibit nude dancing rather than to protect the public health and welfare.

The court of appeals affirmed, holding that municipal authority to regulate liquor is limited by the free speech guarantee of the Minnesota Constitution and that a municipal ordinance enacted solely to prohibit non-obscene nude dancing in licensed liquor establishments and not to further any legitimate governmental interest violates that guarantee.

The reasoning of the trial court and the court of appeals, in agreeing that the city’s actions in not renewing the liquor license violated the Minnesota Constitution, may be summed up as follows: (a) nude barroom dancing is protected under the First Amendment to the federal constitution; however, (b) under the Twenty-first Amendment³ to the federal constitution, the states, pursuant to their authority to regulate the sale and use of liquor, may regulate nude barroom dancing that might otherwise be federally protected speech;⁴ (c) but the right to freedom of expression under Art. 1, § 3 of the state constitution is at least as broad as free speech under the First Amendment; so, (d) nude barroom dancing is therefore protected by the state’s free speech guaranty; and (e) because there is no provision in our state constitution corresponding to the Twenty-first Amendment to the federal constitution, the state constitutional protection afforded nude barroom dancing governs.

We think it clear, and so hold, that the state’s power to regulate the sale of liquor under the Twenty-first Amendment does not limit the free speech protections of our state constitution. The critical issue, as we see it, is whether the state, in regulating the sale and use of liquor, may impose restrictions on nudity in bars without violating Art. 1, § 3 of the Minnesota Constitution.⁵

In this case the people of Coates, through their elected representatives, chose to exercise the municipality’s police power to prohibit nude dancing in public bars. The police power may be used to protect — as the Coates ordinance itself recites — “the public health, safety, and general welfare” of the community.

The sparse record does not show that nude dancing at Jake’s Bar has resulted in any incitement to criminal activity, so in that sense the public safety is not implicated. But that does not end our inquiry. The City Council evidently found that stark naked dancing in public bars was offensive to community standards of public decency.⁶ The City Council may have felt that the presence of liquor establishments advertising nude dancing, in a small community such as Coates, conveyed a message to the children and teenagers of the community that this activity was socially and morally acceptable. As for adult patrons, the City Council may have felt the particular combination of liquor, nudity, and sex, while it might be viewed as adult entertainment, could also be construed as a subliminal endorsement for unlawful sexual harassment. Because nudity is prevalent in advertising, movies and video, it might be added, it does not follow that nude dancing in bars should be similarly allowed. What distinguishes the latter is its physical immediacy for the onlooker. See Miller v. California, 413 U.S. 15, 26 n. 8, 93 S.Ct. 2607, 2616 n. 8, 37 L.Ed.2d 419 (1973). Nor are we concerned under the ordinance with nude performances in public forums other than bars.

In short, the ordinance can be viewed as a reasonable exercise of the municipality’s police powers. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991) (a public indecency statute, enacted under the traditional municipal police powers, furthers a “substantial government interest” in protecting order and morality) (Chief Justice’s opinion, joined in by Justices O’Connor and Kennedy).

Having said this, it remains to consider whether the Coates ordinance impermissibly infringes on the free speech guaranty of our state constitution. To begin with, this is a freedom of expression case.

Nude dancing in bars is expressive conduct, and, as a kind of “hybrid speech,” is protected under our state constitution. The city’s regulation of nudity in bars may be accomplished constitutionally if the regulation has “only incidental impact on freedom of expression,” Koppinger v. City of Fair-mont, 311 Minn. 186, 248 N.W.2d 708, 712 (1976), and if the regulations controlling the expressive conduct are reasonable as to time, place and manner of expression. Id.

Here the liquor establishment and the nude dancing have a symbiotic relationship. They share the same regulated hours of activity and the same premises. The consumption of liquor adds to the ambiance and to a relaxation of inhibitions. Significantly, the prohibition on the manner of the performance is narrowly drawn. The ordinance does not prohibit dancing, nor dancing in bars, nor dancing in bars with minimal covering of sexually explicit bodily parts. It is not clear how this minimal prohibition impairs whatever non-obscene, erotic message the dancer is seeking to express.

We believe the curtailment of free expression is nominal and incidental and insufficient to cancel the public welfare concerns of the community. We hold the Coates ordinance as here construed to be constitutional under Art 1, § 3 of the Minnesota Constitution.

Assuming arguendo, that the First Amendment to the federal constitution would apply notwithstanding the Twenty-first Amendment, we conclude, for the same reasons given in our discussion of the state constitution, that the Coates ordinance would not violate the First Amendment. Barnes, supra.

Reversed.

1 . " * * * all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right." Minn. Const, art. 1, § 3.

2 . The ordinances at issue are Coates, Minn. City Ordinances §§ 603.01, 603.02 (1978):

603.01, PURPOSE. The City of Coates does hereby ordain that it is in the best interest of the public health, safety and general welfare of the people of the City of Coates that certain types of entertainment, as hereinafter set forth, be prohibited upon the premises of licensed liquor and beer establishments so as to best protect and assist the owners and operators and employees thereof, as well as the patrons thereof and the public in general. Further, the City does ordain that the standards set herein are reflective of the prevailing community standards in the City of Coates.

603.02, CERTAIN ACTS PROHIBITED. It shall be unlawful for any licensee to permit or to suffer any person or persons from being upon the licensed premises when such person does not have his or her buttocks, anus, breast and genitals covered with a non-transparent material.

3 . "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” U.S. Const, amend. XXI, § 2.

4 . In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) the United States Supreme Court held that states may impinge on First Amendment protections in the context of licensing bars and nightclubs to sell liquor by the drink without violating the federal constitution. The Court said that the "broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals.” Id. at 114, 93 S.Ct. at 395.

The United States Supreme Court sanctioned a broad application of its holding in LaRue in Doran v. Salem Inn., Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). In Doran, the Court stated in dicta that the Twenty-first Amendment outweighed any First Amendment interest in nude dancing as long as the state ban is part of a liquor license program. Id. at 932-33, 95 S.Ct. at 2568-69. The Court has also rejected the argument that courts must determine that the dancing is more "gross sexuality” than "communicative expression” to fit under the LaRue holding. The Court summarily reversed a state court decision which found that a ban on topless dancing violated the First Amendment because the activity was not analogous to the “gross sexuality” in LaRue nor supported by legislative findings demonstrating the need for a rule. New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981). The Court quoted the dicta from Doran stating that the Twenty-first Amendment justifies any state restriction on speech as part of a liquor licensing scheme. Id. at 717, 101 S.Ct. at 2601.

5 .The Coates ordinance refers to nudity in liquor establishments, and does not mention nude dancing. Respondent, therefore, also contends the ordinance is overbroad; but we think not as we are dealing with nudity as expressive conduct. (We might add that the definition of "dancing” appears to have been liberally construed in Jake’s Bar, as indicated by the video tape made part of the record.)

This case is distinguishable from Koppinger v. City of Fairmont, 311 Minn. 186, 248 N.W.2d 708 (1976), where the court invalidated an ordinance restricting nudity in public business establishments as being overbroad. The Coates ordinance is limited to nudity in liquor establishments. In any event, consistent with the record in this case, we construe the ordinance to apply to nude entertaining in bars.

6 . According to a video tape which is part of the record on appeal, it appears the patrons sit along the bar and the nude dancers perform on the bar.