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D'ANGIO v. BOROUGH OF NESCOPECK

January 29, 1999

DECIO D'ANGIO, PLAINTIFF
v.
BOROUGH OF NESCOPECK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

BACKGROUND:

On June 10, 1998, plaintiff D'Angio, individually and d/b/a Sammy's Hide-a-way Lounge, commenced these two actions in the Court. of Common Pleas of Luzerne County. Both actions were removed to this court on June 23, 1998.*fn1

Although both actions recite a common set of facts and involve common questions of law, no party has filed a motion to consolidate. Instead, the parties have filed duplicative motions, briefs and affidavits in each case. The court finds consolidation clearly appropriate. and therefore, under and pursuant to Fed.R.Civ.P. 42(a), will now order their consolidation. As the initiating document in No. 98-1115 was in the form of a detailed complaint and the initiating document in No. 98-1116 was in the form of a more limited "Appeal," the surviving case will be No. 98-1115, and in this memorandum and the ensuing order, we will refer to the complaint filed in No. 98-1115.

Plaintiff owns and operates Sammy's Hide-a-way Lounge, an adult entertainment establishment that features totally nude dancers. In his complaint, plaintiff seeks a judgment declaring that the Public Indecency Ordinance enacted by Nescopeck on May 11. 1998, violates (1) his freedom of speech under the United States and Pennsylvania Constitutions because the ordinance prohibits public nudity and therefore prohibits dancers from performing totally nude at his place of business, and (2) his rights under the Equal Protection provisions of both constitutions.

Presently before the court is defendants' motion to dismiss the complaint pursuant to FED. R. Civ. P. 12(b)(6), (record document no. 2), filed July 17, 1998. For the reasons which follow, we will grant in part defendants' motion.

STANDARD:

A motion to dismiss under FED. R. Civ. P. 12(b)(6) admits the well-pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The complaint must be construed in favor of the plaintiff with every doubt resolved in the plaintiff's favor. In re Arthur Treacher's Franchise Litigation, 92 F.R.D. 398, 422 (E.D.Pa. 1981). That is, the court must accept as true all factual allegations set forth in the complaint as well as all reasonable inferences that can be drawn from them. Nami v. Fauver; 82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250. 1261 (3d Cir. 1994). The court looks only to the facts alleged in the complaint and any attachments, without reference to any other parts of the record. Jordan at 1261. "[A] case should not be dismissed unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiffs allegations." Id. (citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

DISCUSSION:

Plaintiff's complaint alleges that Ordinance No. 434, An Ordinance of the Borough of Nescopeck to Prohibit Public Indecency (the "Ordinance" or the "Nescopeck ordinance"), violates plaintiff's civil rights guaranteed under the United States and Pennsylvania Constitutions. Specifically, plaintiff complains of Sections 1 and 2 of the Ordinance, which state:

    Sec. 1. The Borough Council hereby declares the
  following conduct to be illegal as hereinafter set
  forth, and further, that such activities are hereby
  declared to be and constitute public indecency.
    Sec. 2. (a) A person who knowingly or intentionally,
    in a public place:

(1) engages in sexual intercourse;

(2) engages in deviate sexual conduct;

(3) appears in a state of nudity; or

      (4) fondles the genitals of himself or another
      person.
    (b) `Nudity' means the showing of human male or
    female genitals, pubic area, or buttocks with less
    than a fully opaque covering, the showing of the
    female breast with less than a fully opaque covering
    of any part of the nipple or the showing of covered
    male genitals in a discernibly turgid state.

Ordinance No. 434 at ¶¶ 1-2(a), (b) (emphasis added) (Complaint, Exh. A).

For the reasons which follow, we find that the Ordinance does not violate plaintiffs rights under the United States Constitution. We conclude that Barnes v. Glen Theatre, Inc., et al., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), is binding precedent on the First Amendment free speech issue raised by plaintiff, despite the recent decision to the contrary rendered by the Pennsylvania Supreme Court in Pap's A.M. v. City of Erie [Pap's II], 553 Pa. 348, 719 A.2d 273 (1998), a strikingly similar case. Moreover, we find the equal protection argument to be without merit. Finally with respect to the Pennsylvania constitutional claims, we will decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 (c)(1) and (3), as the free speech claim, at least, raises a complex issue of state law, and the court is dismissing all claims over which it had original jurisdiction.

Therefore, we will grant in part defendants' motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.

A. First Amendment — Freedom of Speech

We will now address the alleged violation of plaintiff's rights under the First Amendment to the United States Constitution in light of Barnes. We do not believe that the Ordinance in any way violates plaintiff's federally guaranteed rights. Defendants cite Barnes in support of their argument that the Ordinance is within the ambit of the state's police power and unrelated to the suppression of the freedom of expression guaranteed by the First Amendment. We agree with defendants.

In Barnes, five members of the Supreme Court agreed that an Indiana statute prohibiting public nudity, as applied to nude dancing performed as entertainment, did not violate the First Amendment.*fn2 That case involved two Indiana establishments (the respondents) that wished to provide totally nude dancing as entertainment. The respondents sought to enjoin enforcement of Indiana's state public indecency law, which in pertinent part, provided as follows:

  Sec.1.(a) A person who knowingly or intentionally,
  in a public place:

(1) engages in sexual intercourse;

(2) engages in deviate sexual conduct;

(3) appears in a state of nudity; or

    (4) fondles the genitals of himself or another
    person; commits public indecency, a Class A
    misdemeanor.
  (b) `Nudity' means the showing of the human male or
  female genitals, public area, or buttocks with less
  than a fully opaque covering, the showing of the
  female breast with less than a fully opaque covering
  of any part of the nipple, or the showing of the
  covered male genitals in a discernibly turgid state.

Id. at 569, n. 2, 111 S.Ct. 2456 (quoting IND. CODE § 35-45-4-1 (1988)).

The effect of the statute was to require female dancers to wear no less than "pasties" and a "G-string" while performing in public. The respondents contended that the statute violated their freedom of expression guaranteed by the First Amendment to the United States Constitution. Id. at 563, 111 S.Ct. 2456. Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy (the Rehnquist plurality) first determined that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment. Id. at 565, 111 S.Ct. 2456 (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)).*fn3

Next, the Rehnquist plurality proceeded to determine the level of protection to be afforded to the expressive conduct at issue. They turned to the Supreme Court's analysis in United States v. O'Brien, 391 U.S. 367. 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a case involving the burning of a draft card on the steps of a South Boston Courthouse. In that case, O'Brien was convicted of violating an amendment to a statute that prohibited the knowing destruction or mutilation of draft cards. O'Brien, 391 U.S. at 376, 88 S.Ct. 1673. O'Brien contended (1) that the amendment was unconstitutional in its application to him because his act of burning his registration certificate was protected "symbolic ...


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