Moody v. Board of Shawnee County Comm'rs

697 P.2d 1310, 237 Kan. 67, 1985 Kan. LEXIS 348
CourtSupreme Court of Kansas
DecidedApril 5, 1985
Docket56,774
StatusPublished
Cited by27 cases

This text of 697 P.2d 1310 (Moody v. Board of Shawnee County Comm'rs) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moody v. Board of Shawnee County Comm'rs, 697 P.2d 1310, 237 Kan. 67, 1985 Kan. LEXIS 348 (kan 1985).

Opinions

The opinion of the court was delivered by

Miller, J.:

The plaintiff, Melvin Moody, d/b/a Foxy Ladies Athletic Club, appeals from the final decision and order of the District Court of Shawnee County in this declaratory judgment action, upholding the constitutionality of Shawnee County Home Rule Resolution No. HR 83-12 and denying injunctive relief. Defendants and appellees are the Board of County Commissioners of Shawnee County; Gene M. Olander, the district attorney; and Ed Ritchie, the sheriff.

HR 83-12 was adopted by the Board of County Commissioners of Shawnee County on October 12, 1983. No challenge as to the regularity of the adoption proceedings is made. The resolution is captioned: “A RESOLUTION PROVIDING FOR THE LI[68]*68CENSING AND REGULATION OF ADULT ENTERTAINMENT STUDIOS IN SHAWNEE COUNTY, KANSAS, PROSCRIBING CERTAIN ACTS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.” The findings of the board and the purposes of the act are stated in Section 1 as follows:

“(a) The Board of County Commissioners of Shawnee County, Kansas, finds:
“(1) That heterogeneous masturbatory and oral sex services are being provided for a consideration at adult entertainment studios in Shawnee County.
“(2) That offering and providing such services creates conditions that generate prostitution and other crimes.
“.(3) That employees of adult entertainment studios have been convicted of prostitution occurring in adult entertainment studios and other places in Shawnee County.
“(4) That the continued unregulated operation of adult entertainment studios would be detrimental to the general welfare, health, and safety of the citizens of Shawnee County.
“(b) It is the purpose of this Resolution to promote and secure the general welfare, health, and safety of the citizens of Shawnee County.”

The Resolution is quite lengthy and will not be set out in full. Pertinent portions will be quoted or summarized as necessary later in this opinion. The Resolution defines adult entertainment studio and provides rigid standards for the licensing thereof. It also defines entertainers who provide entertainment within the studios and establishes rigid standards for permits, which must be secured by each entertainer. It establishes fees for licenses and permits, and for the renewal thereof. It sets forth provisions by which licenses or permits may be revoked upon notice and hearing. It establishes hours of operation for the studios, and states the responsibilities of the operators. It prohibits various unlawful sexual acts. It provides penalties (a fine not exceeding $1,000 or confinement in the county jail for not more than six months, or both) for violation of various sections of the Resolution. It contains a severability clause. Finally, the Resolution was to become effective thirty days after its publication.

A few days prior to the effective date plaintiff commenced this declaratory judgment action and sought a temporary restraining order. Upon hearing counsel, the trial court temporarily restrained the enforcement of the Resolution. Thereafter, counsel submitted briefs and made oral argument; and approximately ninety days after the petition was filed the trial court determined [69]*69the action on its merits, upholding the Resolution and dissolving the temporary order. The trial court’s carefully prepared memorandum — containing conclusions of law with which wt a/e in substantial agreement — reads as follows:

“CONCLUSIONS OF LAW
“1. Declaratory judgments are controlled by K.S.A. 60-1701 (1983). The function of the statute is to provide speedy and flexible methodology for the determination of rights and obligations in cases of ‘actual controversy’ where there is ‘actual antagonistic assertion and denial of right.’ See 5 Vernon’s Kan. Stat. Ann. § 60-1701, p. 488 (1967).
“2. It has long been settled in Kansas under the Declaratory Judgment Act that courts have the jurisdiction to determine the validity of statutes, resolutions or ordinances before a party undertakes to act in apparent violation thereof. That is the purpose and intent of the remedial relief contemplated in the act. Acupuncture Society of Kansas v. Kansas State Bd. of Healing Arts, 226 Kan. 639, 647, 602 P.2d 1311 (1979); State Assoc. of Chiropractors v. Anderson, 186 Kan. 130, 135, 348 P.2d 1042 (1960).
“3. The general rule of standing is that unconstitutional governmental action can. only be challenged by a person directly affected and such a challenge cannot be made by invoking the rights of others. State v. Thompson, 221 Kan. 165, Syl. ¶ 4, 558 P.2d 1079 (1976). However, a plaintiff may raise the rights of interrelated persons when attacking the validity of an act on its face. Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 636 (D. Kan. 1981). In addition, there need not be an actual criminal prosecution underway for the case or controversy requirement to be met so long as the threat of criminal prosecution is not speculative or imaginary. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974).
“4. There is a special rule of standing when the statute involved purports to regulate or proscribe the rights of speech or press protected by the First Amendment. Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular party, he is permitted to raise its vagueness or unconstitutional over-breadth as applied to others. And if the law is found deficient [70]*70in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. State v. Allen & Rosebaugh, 1 Kan. App. 2d 32, 42, 562 P.2d 445 (1977), citing from Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971) [White, J., dissenting].
“5. The board of county commissioners is given home rule powers to ‘transact all county business and perform all powers of local legislation and administration it deems appropriate’ subject to limitations, restrictions and prohibitions that have no bearing on this case. K.S.A. 19-101a (1983 Supp.).
“6. A state possesses an inherent power to regulate certain businesses and professions for the good of society. This police power gives a state the right to act to protect and promote public health, safety, morals, peace, quiet and law and order. State ex rel. Schneider v. Liggett, 223 Kan. 610, 614-15, 576 P.2d 221 (1978). The police power of the state extends not only to the protection of the public health, safety and morals, but also to the preservation and promotion of the public welfare.

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Bluebook (online)
697 P.2d 1310, 237 Kan. 67, 1985 Kan. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moody-v-board-of-shawnee-county-commrs-kan-1985.