John Ways v. City of Lincoln

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3355
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John Ways, *
*
Appellant, *
*
v. *
*
City of Lincoln, a city of the primary *
class; Don Wesely, Mayor of Lincoln; *
City Council, City of Lincoln; Jeffery *
Fortenberry, City Council; Jon A. * Appeal from the United States
Camp; Cindy Johnson, City * District Court for the
Councilperson; Jonathan Cook, * District of Nebraska.
City Councilperson; Annette McRoy, *
City Councilperson; Colleen Seng, City *
Councilperson, Chair; Jerry Shoecraft, *
City Councilperson; Tom Casady, *
Chief of Police for the City of Lincoln, *
Nebraska; Unknown Slocum, Captain; *
Doug Srb, Captain; Police Department, *
Twelve other officers; Dana Roper, *
City Attorney, *
*
Appellees. *
___________

Submitted: April 18, 2003

Filed: June 11, 2003 (corrected June 12, 2003)
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Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
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BEAM, Circuit Judge.

John Ways (Ways) appeals the district court's1 decision to grant defendants'
(collectively, "Lincoln" or "the city") summary judgment motion on all of Ways's
claims set forth in his amended complaint. We affirm.

I. BACKGROUND

The facts of this case can be found in more detail in the district court's opinion,
Ways v. City of Lincoln, No. 4:00CV3216, 2002 WL 1742664 (D. Neb. July 29,
2002). Briefly, Ways is the owner and operator of Mataya's "Babydolls" Gentlemen's
Theatre Club (Mataya's), an adult entertainment business featuring clothed, topless
and nude dancers, located in Lincoln, Nebraska. The breasts, hips and buttocks of
these dancers often come into contact with patrons and other dancers during the
performances. Additionally, the dancers sometimes simulate oral sex with patrons.

Members of the Lincoln Police Department did an undercover investigation
and determined that Mataya's was in violation of the Lincoln Municipal Code section
9.16.240 (hereinafter "Ordinance No. 17657"), and Ways was subsequently arrested.
Ways was convicted of violating Ordinance No. 17657 and ordered to pay a fine.
Ways filed a complaint and an amended complaint in federal district court, alleging
a variety of things. Of note to us here are Ways's allegations that Ordinance No.
17657 is vague and overbroad and thus violates his due process rights under 42
U.S.C. § 1983; that Ordinance No. 17657 violates his and his employees' rights to
freedom of expression; and that the public nudity ordinance, Lincoln Municipal Code

1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.

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section 9.16.230, (hereinafter "Ordinance No.17730") violates his equal protection
rights.2 The City of Lincoln moved for summary judgment on all counts, and the
district court granted the motion. Ways appeals.

II. DISCUSSION

Ordinance No. 17657 reads,

9.16.240 Sexual Contact; Prohibited.

(a) It shall be unlawful for any employee or performer (including
amateur performers) in any business or commercial establishment
to have any sexual contact with any other employee, performer or
patron for gratuity, pay or other remuneration, direct or indirect,
or in conjunction with or as part of any performance or
entertainment in any business or commercial establishment.

(b) It shall be unlawful for any patron to have sexual contact with any
employee or performer in any business or commercial
establishment.

(c) For the purposes of this section, sexual contact shall mean the
intentional touching between a patron, a performer, or employee
involving contact by or with a patron's, performer's, or employee's
sexual organ, buttock(s), or breast(s), whether covered or not, or

2
Ways asserted a number of other claims in his amended complaint and referred
to some of these claims in his appeal. We find it necessary to address only three of
these claims because the other claims are clearly without merit or have not been
properly raised on appeal. Included in these meritless claims is Ways's argument that
Mataya's is a "theater" deserving of an exemption under the statute. The facts in the
record clearly show that Mataya's is not a theater as defined by the ordinance, or by
any common sense definition of the word. Instead it is a nude dancing, adult
entertainment business that engages in simulated sexual activities designed to
sexually arouse and gratify the patrons.

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 kissing, when such contact can reasonably be construed as being
for the purpose of sexual arousal or sexual gratification of either
party or any observer.

(d) It shall be unlawful for any person purposely or knowingly to
solicit, induce, or attempt to induce another person to engage in
an act or acts prohibited hereunder.

(e) It shall be unlawful for the owner, lessee, proprietor, or manager
of any business or commercial establishment to knowingly allow
any person on the premises of such business or commercial
establishment to engage in an act or acts prohibits [sic] hereunder.

(f) The provisions of this section shall not apply to a theater, concert
hall, art center, museum, or similar establishment which is
primarily devoted to the arts or theatrical performances and in
which any of the circumstances contained in this section were
permitted or allowed as part of such art exhibits or performances.

Lincoln Mun. Code § 9.16.240.

Ways argues that this ordinance is unconstitutionally overbroad. In Ways v.
City of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001) (Ways I), we upheld the district
court's determination that the precursor to Ordinance No. 17657, Ordinance No.
17613, was overbroad because it did not exempt theaters, concert halls, art centers,
or museums and the city had not shown that public sexual contact in these other, non-
exempted venues created secondary adverse effects. We compared the original
ordinance, Ordinance No. 17613, to the Iowa statute in Farkas v. Miller, 151 F.3d 900
(8th Cir. 1998), which we found to be constitutional and not overbroad because it
contained a theater exception. Notably, we stated in Ways I, "The most significant
difference, however, is that Ordinance No. 17613 did not contain any exception for
artistic venues like the Iowa statute and like Lincoln's new Ordinance No. 17657."
274 F.3d at 519. In adopting Ordinance No. 17657, and including the identical
theater exception provision from the Iowa statute, Lincoln has corrected the

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constitutional shortcomings of Ordinance No. 17613. Thus, we agree with the district
court that the ordinance is not unconstitutionally overbroad.

Ways also argues that Ordinance No. 17657 is unconstitutionally vague. In
Ways I, we upheld the district court's conclusion that Ordinance No. 17613 was not
vague. 274 F.3d at 517. Ordinance No. 17657 is the same as Ordinance No. 17613,
only with the addition of the theater exception (which is identical to the non-vague
provision in the Iowa statute in Farkas.) Thus, Ordinance No. 17657 is not
unconstitutionally vague.

Ways argues that his and his employees' freedom of expression is violated by
Ordinance No. 17657. The district court correctly applied the test from United States
v. O'Brien, 391 U.S. 367, 376-77 (1968), in determining that the ordinance did not
violate Ways's or his employees' freedom of expression, and we affirm the district
court's dismissal of this claim and its explanation. Ways is adamant that "secondary
effects" are a disputed fact preventing summary judgment because "the question of
whether or not there is a secondary effect is before this Court and clearly in dispute.
The City Council in passing this Ordinance . . . were [sic] silent regarding secondary
effects." Brief of Appellant at 17-18. This argument misses the mark. The city did
not need to offer evidence of localized secondary effects of an adult entertainment
business, but rather can rely upon the experiences of other communities in which such
deleterious secondary effects have been discerned. Farkas, 151 F.3d at 903.

Finally, Ways argues that his and his employees' equal protection rights are
violated by Ordinance No. 17730. Ordinance No. 17730 states,

9.16.230 Public Nudity; Unlawful.

(a) It shall be unlawful for a person to, knowingly or intentionally, in
a public place or in any place open to the public, appear in a state
of nudity.

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 (b) 'Nudity' means the showing of the human male or female genitals
or pubic area with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering on any
part of the areola and nipple, or the showing of covered male
genitals in a discernibly turgid state.

(c) This section shall not apply to:

(1) Any theater, concert hall, art center, museum, or similar
establishment which is primarily devoted to the arts or
theatrical performances and in which any of the
circumstances contained in this section were permitted or
allowed as part of such art exhibit or performance;
(2) Any dressing/changing room or restroom facility open to
the public;
(3) Any person under twelve years of age; or
(4) Mothers who are breast feeding.

Ways argues that this statute treats men and women differently because men
may expose their breasts, but women may not. The district court did not address the
issue of whether this was a gender-based classification subject to the heightened
scrutiny standard of United States v. Virginia, 518 U.S. 515 (1996). This was
because the district court found that even if it amounted to such a classification, the
statute met this high standard. Under Virginia, the state must persuasively show that
certain gender-based classifications serve "important governmental objectives" and
that the statute in question is "substantially related to the achievement of those
objectives." 518 U.S. at 533. We agree with the district court's analysis and do not
find it necessary to determine whether this higher standard applies3 because clearly

3
Arguably, the higher standard would not apply because the "discrimination"
was based on a real physical difference between men and women's breasts, thus men
and women were not similarly situated for equal protection purposes. See State v.
Turner, 382 N.W.2d 252, 255 (Minn. Ct. App. 1986); Eckl v. Davis, 124 Cal. Rptr.

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Ordinance 17730 satisfies the stricter standard. As the district court found, the city's
interests in preventing the secondary adverse effects of public nudity and protecting
the order, morality, health, safety, and well-being of the populace are important. The
ordinance is substantially related to those objectives, and thus the higher standard is
satisfied. Virginia, 518 U.S. at 532-534; Buzzetti v. City of New York, 140 F.3d 134,
142 (2d Cir. 1998) (finding that ordinance preventing the exposure of the female, but
not the male, breast did not violate equal protection). Ways's remaining contentions
on appeal are without merit and do not warrant discussion.

III. CONCLUSION

For the reasons stated above, we affirm the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

685 (Cal. Ct. App. 1975).

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