Opposition Brief — Deja Vu of Nashville, Inc. v. Metropolitan Government

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INO.

98-2021

IN THE

SUPREME COURT OF THE UNITED STATES

D.L.S., INC., d/b/a DIAMONDS AND LACE

SHOWBAR, a Tennessee corporation; ANN MARTIN;

KIM TYNDALL; and KAREN CHADWICK,

Petitioners.

CITY OF CHATTANOOGA, TENNESSEE:

nd TENNESSEE ATTORNEY GENERAI

CHARLES W. BURSON,

Resp mdents

Ow Perrrion For Writ Or CERTIORARI

To Tue Unrrep States Court or APPEALS

For Tae Sixty Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Puitup A. Nos_ett-BPR# 10074

(Counsel of Record)

City ATTORNEY S OFFIC!

801 Broap STREE1

itrorney for Re spondent

BLISHING, INC.. CINCINNAT!, OHIO 800-890-5001

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE SIXTH CIRCUIT COURT OF

APPEALS CORRECTLY DETERMINED THAT

THE CHATTANOOGA CITY ORDINANCES

REGULATING PUBLIC NUDITY COMPLIED

WITH THE FIRST AMENDMENT CONTENT

NEUTRAL TESTS IN BARNES AND THE

RATIONAL BASIS TEST REQUIRED BY THE

FOURTEENTH AMENDMENT?

WHETHER THE SIXTH CIRCUIT COURT OF

APPEALS PROPERLY DISMISSED THE

CHATTANOOGA PETITIONERS’ CASE ON

THE MERITS IN LIGHT OF THE FAILURE OF

THE CHATTANOOGA PETITIONERS TO

RESPOND TO THE PENDING MOTION TO

DISMISS BY THE CHATTANOOGA

RESPONDENTS?

WHETHER THE PASSAGE OF THE STATE LAW

ON PUBLIC INDECENCY, CHAPTER 542,

EFFECTIVELY PREEMPTED LOCAL

ORDINANCES AGAINST PUBLIC NUDITY?

LIST OF ALL PARTIES TO THE PROCEEDING

& CORPORATE DISCLOSURE STATEMENT

The caption of the case contains the names of all the

parties involved in this matter.

The City of Chattanooga is a municipal corporation

and has no parent companies or non-wholly owned

subsidiaries required to be disclosed under Supreme Court

Rule 29.6.

TABLE OF CONTENTS

Page

Questions Presented for Review ..............__. i

List of All Parties to the Proceeding & Corporate

Disclosures Statement .................... li

Table of Contents ......................... lil

Table of Authorities ........................ iV

MINNIE is o's on kd hd vce onc cicc es l

Constitutional Provisions, Treaties, Statutes,

Ordinances, and Regulations Involved .........__ l

Statement of the Basis for Jurisdiction .........__. ]

Statement of the Case..................... 2. l

Argument - Reasons to Deny the Writ ............ 6

NES 6 We Sr aieg so da oer h oct. 25

Addendum A

All Chattanooga City Ordinances Questioned

I ec de tea la

TABLE OF AUTHORITIES

Cases Page(s)

Barnes v. Glenn Theatre,

501 U.S. 560, 111 S.Ct. 2456,

115 L.Ed.2d 504 (1991) ........... 6,10,16,18,19,25

Brandon v. Holt,

469 U.S. 464, 105 S.Ct. 873,

ey Se IE ac oa 6 6-5 e406 ek 4 0 0% ee 20

Broadway Books v. Roberts,

642 F.Supp. 486, 491 (E.D.Tenn. 1986) ........ 7,12

Broadrick v. Oklahoma,

413 U.S. 601, 93 S.Ct. 2908,

a eee, ee oC oa ok ee aes 15

City of Chattanooga v. McCoy,

645 S.W.2d 400 (Tenn. 1983) .............. 14,19

Deja Vu of Nashville, Inc., et al. v.

Metropolitan Government of Nashville

and Davidson County, Tennessee, et al.,

ee ak Ps EE oo was oe o ae ee ae wee ees 1,10

DLS, Inc. v. City of Chattanooga,

894 F. Supp. 1140 (E.D. Tenn. 1995) .......... 7,11

DLS, Inc. v. City of Chattanooga,

914 F. Supp. 193 (E.D. Tenn. 1995) ............. 11

DLS, Inc. v. City of Chattanooga, .

107 F.3d 403 (6th Cir. 1997) ........... 11,13,21,22

Miller v. California,

ce A) eer

Pap’s A.M. v. City of Erie,

719 A.2d 273 (Pa. 1998) .........

Southern Railway v. City of Knoxville,

432 S.W.2d 619 (Tenn. 1968) .....

United States v. O’Brien,

rc Ek ee fF) ee

Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746,

2) L..66.28 G68 (1971) .. 2... 20s.

Statutes

Chattanooga City Code §11-421 et seq

Chattanooga City Code §11-434 ....

Chattanooga City Code §11-434(j) ..

Chattanooga City Code §11-434(j)(1)

Chattanooga City Code §11-434(j)(2)

Chattanooga City Code §11-435 ....

Chattanooga City Code §11-435(c) ..

Chattanooga City Code §25-84 .....

——————

Chattanooga City Code §25-85 .............. passim

Rules of the Supreme Court, Rule10.......... 24,25

Rules of the Supreme Court, Rule 29.6 ........... 2

Federal Rules of Civil Procedure, Rule 12(b) ....... 21

Federal Rules of Civil Procedure, Rule 12(b)(1) ... 3,20

Federal Rules of Civil Procedure, Rule 12(b)(6) ... 3,20

Federal Rues of Civil Procedure, Rule 56 ......... 21

Federal Rules of Civil Procedure, Rule 56(e) ....... 21

28 U.S.C. $1407 .... 0... eee 2

28 U.S.C. $ 1407(a) ... 2.2... eee ee ee eee 2

42 U.S.C. $1983 2... 2. eee eee 20

T.C.A. § 751-1406... 0. ee ee ee eee 24

T.C.A. § 3%-2-614(a) .. 2. ee ee ee eee. .8

T.C.A. § 313-511... 2... ee ee ee passim

T.C.A. § 3¢17-509 2. ees 24

T.C.A. § 3917-1551 2.0... ee ee 24

T.C.A. § 68105-1106... ee eee een, 24

T.C.A. § 68126-412 ...........0.....2.0.0005 24

Other

Tennessee Public Acts of 1994,

ee en ere re ee ee passim

Vil

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit was not recommended for full-text

publication but was styled: /n re: State of Tennessee Public

Indecency Statute. Deja Vu, et al. v. Metropolitan

Government of Nashville, et al., a copy of which is attached

as Appendix | to the Brief of Petitioners, DLS, Inc., et al.

Respondent City of Chattanooga adopts and incorporates the

citations of the official and unofficial reports set forth in the

Petition for Writ of Certiorari filed by Petitioner, DLS, Inc.

STATEMENT OF JURISDICTION

Respondent, City of Chattanooga, adopts and

incorporates the Statements of Jurisdiction set forth in the

Petition for Writ of Certiorari filed by Petitioner, DLS, Inc.

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES, ORDINANCES

AND REGULATIONS INVOLVED

Respondent City of Chattanooga adopts and

incorporates the Constitutional provisions, treaties, statutes,

ordinances and regulations involved set forth in the Petition

for Writ of Certiorari filed by Petitioner, DLS, Inc.

STATEMENT OF THE CASE

This Respondent adopts the Statement of the Case set

forth in the Response Brief of Tennessee Attorsey General,

Paul Summers, regarding the general procedural history of

this case applicable to all parties in the Multi-District

Litigation. However, this Respondent will address the

procedural history of the Chattanooga case not previously

referenced by Attorney General Summers.

The Chattanooga action originally began in the Eastern

District of Tennessee before the Honorable R. Allan Edgar,

District Judge, as a Complaint for Temporary Injunction,

Permanent Injunction, Damages and Declaratory Judgment

filed by the Petitioners on September 27, 1995. At the time

the complaint was filed, the Petitioners also filed a Motion for

Immediate Transfer pursuant to 28 U.S.C. § 1407(a) to Multi-

District Litigation pending the Middle District of Tennessee

in Docket No. 1031 as a tag-a-long case. The Chattanooga

case principally involved questions as to Chattanooga City

Ordinance §§ 25-85, 11-434 and 11-435 but did not contain

some questions relative to T.C.A. § 39-13-511 which was at

issue in the Middle District of Tennessee. Judge R. Allan

Edgar immediately scheduled a hearing on Petitioners’ motion

for issuance of a temporary restraining order and preliminary

injunction on September 29, 1995. Both parties filed briefs

and were heard in oral argument concerning the issuance of

a temporary restraining order and preliminary injunction

before Judge R. Allan Edgar on October 6, 1995. An Order

and Memorandum was subsequently issued by Judge Edgar on

October 12, 1995, denying in part and granting in part

Petitioners’ motion for preliminary injunction as to the

Chattanooga City Ordinance provisions at issue. Judge Edgar

further entered a Memorandum and Order on October 12,

1995, denying Petitioners’ motion for an immediate transfer

for administrative purposes, but indicating that the portion of

the case with common issues of law and fact with other cases

questioning T.C.A. § 39-13-511 should be transferred to the

Middle District of Tennessee if accomplished by an Order of

the Judicial Panel on Multi-District Litigation under 28

U.S.C. § 1407.

On December 5, 1995, an Agreed Order of dismissal as to

Police Chief Ralph H. Cothran was entered. An answer of

the defendant City of Chattanooga was filed on December 21,

1995. A motion to dismiss defendants Gene Roberts, City

Council of Chattanooga, Mai Bell Hurley, Don Eaves, David ;

Crockett, David Distefano, Yusuf Hakeem, John Lively,

Leamon Pierce, Marti Rutherford, Ron Swafford, Randall :

Nelson and Ervin Dinsmore was also filed on December 21,

1995. The Judicial Panel on Multi-District Litigation entered

a “Conditional Transfer Order” on December 21, 1995. The

City opposed the “Conditional Transfer Order” insofar as the

order included all claims of Petitioners including the

constitutionality of the Chattanooga City Ordinance provisions

and filed a Notice of Partial Opposition to the Conditional

Transfer Order to be vacated on January 18, 1996.

A Memorandum and Order was then issued by Judge

R. Allan Edgar granting the dismissal of defendants, Gene

Roberts, all members of the Chattanooga City Council,

Randall Nelson and Ervin Dinsmore on January 29, 1996.

Following the dismissal of all defendants other than the City

of Chattanooga and Charles W. Burson, then Tennessee

Attorney General, a notice of Scheduling Conference was

entered by Judge R. Allan Edgar on January 30, 1996, to

discuss any further litigation in this case, Case No. 1:95-CV-

333 in the Eastern District of Tennessee at Chattanooga.

Prior to the Scheduling Conference in this case, the

remaining Chattanooga Respondent again moved the Eastern

District Court to dismiss this action on March 6, 1996,

pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal

Rules of Civil Procedure in that State judicial proceedings,

concerning civil citations to Ann Martin and Renita Henegar

pursuant to Chattanooga City Code Section 25-85 were being

litigated in the Tennessee State Courts. All Chattanooga

Respondents respectfully moved Judge R. Allan Edgar to

dismiss the complaint for the failure to state a claim upon

which relief could be granted and upon Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) abstention

grounds due to pending Tennessee State Court action

involving the Chattanooga City Ordinances in question. Oral

argument was eventually heard by the Judicial Panel on Multi-

District Litigation concerning the objections of the City of

Chattanooga to the transfer of the Chattanooga Ordinance

provisions to the Middle District of Tennessee on March 28,

1996. On April 11, 1996, a transfer order was finally issued

in Multi-District Litigation Docket No. 1031 transferring

DLS, Inc. v. City of Chattanooga, et al., E.D. Tenn., Case

No. 1:95-CV-333, to the Middle District of Tennessee and

assigning it to the Honorable Robert L. Echols for inclusion

in the coordinated or consolidated pretrial proceedings

occurring in that Multi-District Litigation case.

Following the ruling of the Judicial Panel on Multi-

District Litigation, a Memorandum and Order was entered by

Judge R. Allan Edgar on May 17, 1996, denying any

reconsideration of its previous orders dated October 12, 1995,

due to its lack of jurisdiction. Following the transfer to the

Middle District of Tennessee by the Judicial Panel on Multi-

District Litigation, the Chattanooga plaintiffs/appellants did

not respond to the pending Motion to Dismiss by the

remaining Chattanooga defendant. The only filing by the

Chattanooga Petitioners in the Middle District prior to

September 30, 1996, was a Motion for Status

Conference/Case Management Conference on June 17, 1996.

There were no legal defenses submitted by the Chattanooga

Petitioners in the Middle District concerning the pending

motion to dismiss the City of Chattanooga or in any way

discussing the constitutionality of Chattanooga City Ordinance

upon which the complaint was based.

At the time of transfer, all discovery, briefing and oral

arguments of the three other cases in this Multi-District

Litigation were completed and pending for consideration by

Judge Echols as indicated in the Statement of the Case by

Attorney General Walkup. An Order was entered in the

Middle District by Judge Echols on July 30, 1996, granting

the Chattanooga Petitionezs’ motion for status conference/case

management conference and initially set it on August 26,

1996. A subsequent Order dated August 16, 1996,

rescheduled the case management conference until September

30,1996 and a subsequent Order rescheduled any conference

until October 21, 1996. Prior to the date scheduled for the

case management conference on October 21, 1996, a

Memorandum and Order granting Summary Judgment as to

all Respondent on the constitutionality of T.C.A. § 39-13-511

and the Chattanooga Ordinances was entered by Judge Echols

on September 30, 1996. The Chattanooga Petitioners then

filed a “Motion to Reconsider and Motion for Stay Pending

Appeal on October 9, 1996. Judge Echols entered a

Memorandum and Order denying this Motion to Reconsider

on July 2, 1997, but granted a motion for stay which affected

all pending State Court action until the resolution of this

appeal. The Chattanooga Petitioners filed their Notice of

Appeal to the Sixth Circuit Court of Appeals on July 11,

1997.

The U.S. Court of Appeals for the Sixth Circuit

consolidated all four cases on appeal from MDL-J031 and

issued an unreported opinion affirming the dismissal of all

Petitioners’ claims by the District Judge on January 13, 1999.

The Petitioners then filed a petition for rehearing with

suggestion for rehearing en banc in the Sixth Circuit. The

petition was considered and subsequently denied by the Sixth

Circuit on March 18, 1999.

This brief in response to the Petition for Writ of

Certiorari is filed in accordance with the amended briefing

schedule of this Court and is timely filed.

ARGUMENT -

REASONS FOR DENYING THE WRIT

A. THE SIXTH CIRCUIT CORRECTLY

DETERMINED THAT THE CHATTANOOGA

CITY ORDINANCES REGULATING PUBLIC

NUDITY COMPLIED WITH THE FIRST

AMENDMENT CONTENT NEUTRAL TESTS IN

BARNES AND THE RATIONAL BASIS TEST OF

THE FOURTEENTH AMENDMENT.

A. THIS RULING PROPERLY DISMISSED

PETITIONERS’ CLAIMS AND DID NOT

RESULT FROM ANY FRACTURED

READING OF THE PLURALITY

OPINION IN BARNES.

The Chattanooga Petitioners originaily filed a Motion

for Issuance of Temporary Restraining Order and Preliminary

Injunction pursuant to Rule 65 of the Federal Rules of Civil

Procedure which was promptly considered by Judge Edgar in

a hearing on October 6, 1995. The Chattanooga Petitioners

originally moved the District Court to restrain and enjoin all

Respondent in this cause, including the City of Chattanooga,

from enforcing or attempting to enforce Chattanooga City

Code Sections 25-84, 25-85, 11-434(j)(1) and (2), 11-435(c),

and Tennessee Code Annotated Section 39-13-511.

Chattanooga City Code Section 25-84 was adopted by the

Chattanooga City Commission by reference through

Ordinance No. 8727 on November 18, 1986. Chattanooga

City Code Section 25-85 was adopted by the Chattanooga

City Commission as Ordinance No. 7420 on September 5,

1978. Chattanooga City Code Sections 11-434(j)(1) and (2),

and 11-435(c) were adopted by the Chattanooga City

Commission as a portion of Ordinance No. 8601 on March 4,

1986. T.C.A. 39-13-511 was adopted by the Tennessee

General Assembly as Public Chapter 542 of the Public Acts

of 1994 and became effectiv= on July 1, 1994. (hereinafter

“Public Chapter 542”). All City of Chattanooga Ordinances

questioned by Petitioners in the complaint are attached as

Appendix 1, 2 and 3.

These Chattanooga City Ordinances considered by the

District Court did not attempt to regulate in any manner the

content of materials available to be sold within the City of

Chattanooga. They did, however, set forth specific

requirements upon owners, operators, and employees of such

businesses which prohibited total nudity and certain other

sexual activity in such establishments which had been proven

to exist in previous cases in the Eastern District, namely

Broadway Books v. Roberts, 642 F. Supp. 486, 491 (E.D.

Tenn. 1986); and DLS, Inc. v. City of Chattanooga, 894

F.Supp. 1140, 1145-1146 (E.D. Tenn. 1995). The City of

Chattanooga asserted during oral argument that this conduct

within business establishments constituted a significant hazard

to the health, welfare, morals and safety of the citizens of the

City of Chattanooga for which a city has power to regulate

under the police power given to it in its Charter by the State

of Tennessee.

1. Chattanooga Legislative History

Under Tennessee State law and the Chattanooga City

Code, law enforcement personnel have been specifically

authorized to regulate total nudity in public places through a

number of laws. Chattanooga City Code Sec. 25-84 is

WA hic Ath ted te a TRE Ab iecipp lies GBS Ble 8S WRT LR TE LL ES MP 8 .

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verbatim to the former language contained in T.C.A. § 39-2-

614(a) and T.C.A. §39-13-511 prior to its most recent

amendments in Public Chapter 542 in 1994. That Ordinance

which was amended last in 1986 provides in pertinent part as

follows:

"Sec. 25-84 Indecent Exposure.

It shall be unlawful for any person in

the City in a public place to engage in the

willful and intentional exposure of such

persons genitals or buttocks to one (1) or more

other persons where the exposing person may

reasonably expect his conduct to be viewed by

another for the purpose of sexual arousal,

gratification or offending the viewing person."

The City of Chattanooga also previously enacted

Section 25-85, Chattanooga City Code, Part II, last amended

in 1978, which provides in pertinent part as follows:

"Sec. 25-85. Lewd and indecent

conduct.

(a) Definitions. As used in this section,

the following terms shall have the meanings

indicated:

Public place shall include: streets,

sidewalks or highways; transportation

facilities; schools; places of amusements;

parks; playgrounds; restaurants; nightclubs;

cocktail lounges; burlesque houses; bars;

cabarets; taverns; taprooms; private fraternal,

social, golf or country clubs; or any place that

allows the consumption of intoxicating

beverages on the premises.

Wholly or substantially exposed to

public view, as it pertains to breasts, shall

mean the showing of the female breast, in a

public place, with less than a fully opaque

covering of any portion of the breast below the

top of the nipple.

(b) Prohibited acts. It shall be unlawful for

any person to perform in a public place, or for

any person who owns or operates premises

constituting a public place to knowingly permit

or allow to be performed therein, any of the

following acts or conduct:

(1) The performance of acts or simulated

acts of sexual intercourse, masturbation,

sodomy, bestiality, oral copulation,

flagellation or any sexual acts which are

prohibited by law;

(2) The actual or simulated touching,

caressing or fondling of the breasts, buttocks,

anus or genitals in public; or

(3) The actual or simulated public

displaying of the pubic hair, anus, vulva or

genitals;

(4) The appearance by any female in a

public place so costumed or dressed that one

or both breasts are wholly or substantially

exposed to public view, or any owner or

operator of premises constituting a public place

knowingly permitting or allowing any such

person to appear on the premises owned or

operated by him."

Section 25-85 was originally adopted by the City of

Chattanooga as Ordinance No. 6946 on September 23, 1975.

This Ordinance entitled “Lewd and Indecent Conduct” had its

origins in the Indiana public indecency statute which was later

found to be constitutional by this Court in Barnes v. Glen

Theatre, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504

(1991). Section 25-85 was subsequently revised by the

Chattanooga Board of Commissioners in Ordinance No. 7420,

dated September 5, 1978, after litigation in the Tennessee

Court of Appeals, to exclude any reference to "theaters" or

"auditoriums" within the definition of "public place" which

was originally included in Ordinance No. 6946.

The Tennessee General Assembly also substantially

revised the statutory language of T.C.A. 39-13-51] through

Public Chapter 542 in the summer of 1994 to specifically

incorporate most of the minimal pastie and g-string language

approved by this Court in Barnes. That statute was already

being construed in the Middle District of Tennessee by

District Judge Robert Echols in the case of Deja Vu of

Nashville, Inc., et al. v. Metropolitan Government of

Nashville and Davidson County, Tennessee, et al., Case No.

3 : 94-0494 when this action was originally filed in the

Eastern District of Tennessee. The current determination of

the constitutionality of Public Chapter 542 is also before this

Court as a part of the ruling of the Sixth Circuit below.

The District Court for the Eastern District of

Tennessee was also fully familiar with the history of

Ordinance No. 8601 and its subsequent amendments which

were most recently interpreted by it during litigation during

Pe = wa ae

the spring and summer of 1995, in DLS, Iné., et al. v. City of

Chattanooga, et al., 894 F. Supp. 1140 (E.D. Tenn. 1995);

and DLS, Inc., et al. v. City of Chattanooga, et al., 914 F.

Supp. 193 (E.D. Tenn. 1995). The opinion of Judge Edgar

in the initial DLS case was upheld by a panel of the Sixth

Circuit in DLS, Inc. et al. v. City of Chattanooga, et al., 107

F.3d 403 (6" Cir. 1997) and no Petition for Writ of Certiorari

was sought based upon that case.

The Chattanooga Adult Oriented Establishment

Ordinance, codified as Chattanooga City Code § 11-421, et

seq., was originally enacted in 1986 by the City of

Chattanooga based upon known increases in the cases of

Acquired Immune Deficiency Syndrome (AIDS) within the

State of Tennessee and after inspection by members of the

Chattanooga Police Department, representatives of the

Chattanooga news media, and Chattanooga Building and

Health Inspectors discovered blood, semen, and urine in the

cubicles and booth areas within numerous adult-oriented

establishments where persons viewed adult-oriented films or

witnessed sexually-explicit live entertainment.

This matter came to the attention of the public and the

Chattanooga Board of Commissioners due to reports of "glory

holes" which were located in booths within Chattanooga

adult-oriented establishments at that time, and through

observations of homogeneous and heterogeneous masturbatory

acts and other sexual acts, including ora] sex acts, which were

being performed in such establishments at that time. The

Board of Commissioners of the City of Chattanooga, based

upon such information, originally deemied it necessary to

institute a licensing ordinance to protect the public from the

spread of disease as a result of sexual contact in Chattanooga

adult-oriented establishments and to prohibit unlawful acts

from being performed within public establishments located

within the City of Chattanooga, Tennessee. The original

Chattanooga Ordinance was constitutionally approved by

District Judge Edgar in 1986 except for certain provisions

specified in Broadway Books v. Roberts, supra, which were

no longer part of the Chattanooga Ordinances when this action

was filed.

On July 15, 1993, DLS, Inc. and Ann Martin initially

applied for a business tax license for the establishment known

as "Diamonds and Lace Showbar" at 115 Honest Street,

Chattanooga, Tennessee, 37421. This license was approved

by the Chattanooga Chief of Police and the City Treasurer on

August 23, 1993, and this business was allowed to operate at

all times pending final license approval. Following the

granting of an adult entertainment license to Diamonds and

Lace Showbar, an application for renewal was approved by

the Chief of Police on September 21, 1994, and was

continually approved on an annual basis after that time. At

the time this lawsuit began, the Chattanooga adult

establishment license for Diamonds and Lace Showbar did not

expire until June 30, 1996. Since this litigation began, DLS,

Inc. has continuously been allowed to operate and has never

denied an adult-establishment license at any time by the City

of Chattanooga.

Since Diamonds and Lace Showbar has held an adult-

oriented establishment license as an "adult cabaret", several

amendments have occurred to Chattanooga's Adult

Establishment Ordinance. Ordinance No. 9980 was passed by

the Chattanooga City Council on third and final reading on

November 23, 1993.

That Ordinance specifically provided for due process

protection to any applicant for an adult-oriented establishment

license, when and if, any adult establishment license was

denied by the Chattanooga City Council and no agreement

could be reached with the applicant. Pursuant to Ordinance

No. 9980, the City was further required to institute suit for

declaratory judgment in the Chancery Court of Hamilton

County, Tennessee, within 5 days of the date any license was

denied in order to seek an immediate judicial determination of

whether such license or permit could be properly denied under

the law. Following the ruling of Judge Edgar in DLS, Inc.,

et al. v. City of Chattanooga, et al., 894 F.Supp. 1140 (E.D.

Tenn. 1995), the Chattanooga City Council further revised

portions of the Chattanooga Adult Establishment Ordinance

by Ordinance No. 10270 on August 1, 1995, in order to more

fully provide judicial interpretation of any license or permit

revocation, suspension or renewal determination by the City

of Chattanooga.

The definitica of "adult cabaret" under Chattanooga

City Code § 11-422 was also redefined by Ordinance No.

9980 in December of 1993. The stated purpose of these

amendments to the Chattanooga Adult Establishment

Ordinance were to adopt “content neutral, time, place and

manner" regulations which were designed to serve a

substantial governmental interest and to allow for reasonable

alternative avenues of communication within the City of

Chattanooga. Chattanooga Ordinance Nos. 9980 and 9982

were each adopted by the Chattanooga City Council based

upon its own previous experience in regulating adult-oriented

establishments and upon the experience of other cities such as

Louisville, Kentucky and the State of Indiana. The City of

Chattanooga is also currently in litigation with DLS, Inc. and

a number of its employees in the Criminal Court of Hamilton

County, Tennessee based upon violations of Chattanooga City

Code § 25-85 which have been stayed to this point due to

continuing appeals.

In the adoption of Chattanooga Ordinance No. 7420 on

September 5, 1978, the City Commissioners specifically

limited the application of it when they deleted any reference

to “theaters” or “auditoriums” within the definition of “public

place.” This Ordinance amendment occurred over twenty

(20) years ago due to a prior ordinance which was stricken

after it was interpreted to deny protection granted to

“legitimate theatrical performances.” Following the passage

of Chattanooga Ordinance No. 7420, two defendant dancers

from the Night Haven Lounge in Chattanooga were later cited

under the amended Ordinance when there was undisputed

proof that they performed a dance routine attired in a "G-

string" covering their genital areas and "clear pasties", if

anything, covering their breasts. Convictions of both dancers

were eventually upheld in Chattanooga City Court and in the

Tennessee Supreme Court after consideration of First

Amendment overbreadth challenges.

2. Prior Judicial Review

The Tennessee Supreme Court in City of Chattanooga

v. McCoy, 645 S.W.2d 400 (Tenn. 1983) specifically

considered the revisions to the Chattanooga City Code enacted

in Ordinance No. 7420 and found as follows:

In the instant case, Respondent assert no claim

that their conduct involved any speech of

expression of ideas entitled to First

Amendment protection. Their challenge is

based upon an alleged facial invalidity, that in

substance says, some other person or persons

may be prohibited from presenting in a public

place an artistic, socially redeeming expression

of ideas that involves some nudity. The

obvious thrust of the Chattanooga ordinance

is to outlaw nudity and indecent sexual

conduct in public without any express or

implied intent to suppress or prohibit any

legitimate speech or expression entitled to |

First Amendment protection. It is a travesty

to allow nude and crude public exhibitors of

the human body, the privilege of asserting the

rights of persons who contribute to society's

permanent values and are entitled to First

Amendment protection, and to read into a

public indecency statute an intent to suppress

free speech and expression. This Court is not

willing to follow those cases that would

recognize Respondent’ First Amendment claim

of overbreadth as valid. Any overbreadth in

this ordinance is, in our opinion, minimal and

insignificant. We understand Broadrick v.

Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37

L.Ed. 2d 830 (1973) to hold that where, as

here, conduct, not speech, is sought to be

regulated, the overbreadth must not only be

real, but substantial as well, to violate the

Federal Constitution. We hold the

Chattanooga ordinance to be a valid exercise

of the police powers of the State.

(Emphasis supplied).

The Sixth Circuit below correctly reviewed the District

Court’s grant of Summary Judgment de novo. The Court

reviewed and considered the plaintiff's principal contention

that Public Chapter 542 violated the plaintiff's First

Amendment rights to freedom of expression.

The Sixth Circuit properly considered whether this

Statute was a content neutral time, place and manner

restriction or a content based restriction subject to strict

scrutiny analysis before proceeding further in its analysis.

The Sixth Circuit clearly reviewed the preamble to Public

Chapter 542 which plainly provides that it was enacted to

combat the secondary effects of nude dancing establishments

such as sexual assault, prostitution and other criminal activity

and found that this State’s statute was content neutral. Similar

logic can be applied to the Chattanooga pastie and g-string

ordinance which has been in effect since 1978 as well.

Having determined that the Tennessee State law was

content neutral, the Sixth Circuit then turned its focus to the

question of how to appropriately analyze the Ordinance to

determine its constitutionality. The Sixth Circuit properly

followed Justice Souter’s concurring opinion in Barnes vy.

Glenn Theatre, Inc., 501 U.S. 560 (1991), in this analysis.

The plurality opinion of this Court in Barnes adopted the

four-part test earlier developed in United States v. O’Brien,

391 U.S. 367, 377 (1968), which provides that a statute is

constitutionally valid if it is within the constitutional power of

the government; if it furthers an important or substantial

governmental interest; if the governmental interest is

unrelated to the suppression of free expression; and if the

incidental restriction on First Amendment freedom is no

greater than is essential to the furtherance of that interest.

The Sixth Circuit adequately considered all four prongs of the

O’Brien test and found that Public Chapter 542 was a content-

neutral restriction of free speech within the tenets of Barnes

and O’Brien and did not violate the First Amendment right of

any Petitioners to freedom of expression. The Sixth Circuit

further held that there was no greater protection under the

Tennessee Constitution for nude dancing as a form of

expression than existed under the United States Constitution.

This determination is likewise applicable to the ordinances of

the City of Chattanooga at issue.

The Sixth Circuit expressly held that the Chattanooga

plaintiff's attempt to differentiate their case from other

Petitioners who attacked the Tennessee State Public Indecency

Act was likewise invalid. The Sixth Circuit found that even

though another Chattanooga City Ordinance specified a six-

foot buffer zone restriction and forbade alcohol consumption,

minimal pastie and g-string clothing requirements for dancers

did not violate their freedom of expression. The Sixth Circuit

found that the petitioner DLS, Inc.’s argument ignored the

seminal point that “while the possibility of disease may be

diminished due to an increased distance between dancer and

patron and that a lack of alcohol may reduce violence, the

associated crime effects still exist.” The Sixth Circuit

properly found that the Chattanooga Petitioners do not enjoy

a more formidable challenge to Chapter 542's

constitutionality. After a full review of the action of the

District Court, the Sixth Circuit found that the Chattanooga

City Ordinance and Chapter 542 essentially mirror one

another. Any claims as to unconstitutionality of the

Chattanooga City Ordinance, Section 25-85 and Section 11-

435(c) likewise failed.

The Chattanooga Respondent submits that the Sixth

Circuit correctly avoided any discussion of § 25-84 and § 11-

434(j) because they did not prohibit and were not directed at

nude dancing. Section 11-434(j) merely prescribes the

contents of signs to be placed in adult-oriented establishments.

The provisions of § 25-84 are significantly limited to those

circumstances "where the exposing person may reasonably

expect his conduct to be viewed by another for the purpose of

sexual arousal, gratification or offending the viewing person".

The Chattanooga Respondent would submit that such

provisions are not overbroad and are sufficiently limited to

regulate that conduct of "flashers" or "exhibitionists" who

may expose themselves which has been found to be offensive

within the Chattanooga community rather than any application

to a nude dancing establishment where the patrons pay to view

such information and are presumably not offended by sexually

explicit display. As such, the Chattanooga Respondent

submits that § 25-84 and § 11-434 are substantially narrow

and are appropriate to be enforced where applicable.

The Chattanooga Respondent would submit that the

ruling of the Sixth Circuit below is not a fractured

interpretation of Barnes. This case has resulted from a fair

and reasonable legal interpretation that requires minimal

clothing requirements of pasties and g-strings for exotic

dancers in adult establishments in Tennessee. Such

regulations are not content based and have been correctly

reviewed under O’Brien standards. As such, there is no

compelling reason for this Court to revisit Barnes eight years

after it was written.

(B) THE SIXTH CIRCUIT CORRECTLY

DETERMINED THAT THE

CHATTANOOGA CITY ORDINANCES

REGULATING PUBLIC NUDITY

COMPLIED WITH THE RATIONAL

BASIS TEST REQUIRED BY THE

FOURTEENTH AMENDMENT?

Insofar as the brief filed by Tennessee Attorney

General Paul Summers contains an extensive Constitutional

analysis relative to Pap’s A.M. v. City of Erie, 719 A.2d 273

(Pa. 1998) and other allegedly inconsistent rulings, the

Chattanooga Respondent will not seek to duplicate the

arguments relative to the constitutionality of Public Chapter

542 and attacks on what constitute the “narrowest grounds”

of the Barnes decision. The Chattanooga Respondent will

adopt the argument of the Tennessee Attorney General

relative to the constitutionality of Public Chapter 542 and

why Barnes does not need to be reinterpreted based upon the

arguments in this case.

The Chattanooga Respondent would submit that the

Sixth Circuit adequately discussed the case law applicable to

the Tennessee Indecency Statute and properly found that the

Chattanooga City Ordinances were likewise Constitutional.

The Sixth Circuit properly determined that all of the

Chattanooga City Ordinances were content-neutral in their

language and as applied. The Sixth Circuit properly found

that these Ordinances did not violate the Chattanooga

Petitioners’ First Amendment rights to freedom of expression

or under Article I, Section 19 of the Tennessee Constitution.

The Sixth Circuit properly considered the Petitioners’

arguments that the Tennessee Public Indecency Statute was

void for vagueness. The Sixth Circuit properly considered the

Petitioners’ arguments as to “theatrical production” and

“public place” and found that such terms were not vague

because they derived their definitions from either Miller v.

California, 413 U.S. 15 (1973), or otherwise complied with

a minimum degree of definiteness which did not render such

phrases unconstitutionally vague.

The Sixth Circuit further considered Petitioners’

arguments of overbreadth and specifically found that the State

Public Indecency Act avoided any overbreadth problem by

containing the very limitations and exclusions which the

Petitioners’ claimed rendered Chapter 542 vague. Respondent

City of Chattanooga would further submit that Chattanooga

City Code provisions of Section 25-85 had previously been

given judicial limiting construction by the Tennessee Supreme

Court in City of Chattanooga v. McCoy, supra, and that the

Sixth Circuit correctly applied the limiting language of the

Tennessee Supreme Court to the application to the

Chattanooga Ordinance as well.

2. THE SIXTH CIRCUIT PROPERLY DISMISSED

THE CHATTANOOGA PETITIONERS’ CASE

ON THE MERITS IN LIGHT OF THE FAILURE

OF THE CHATTANOOGA PETITIONERS TO

RESPOND TO THE PENDING MOTION TO

DISMISS BY CHATTANOOGA RESPONDENT.

Prior to any order of the Judicial Panel on Multi-

District Litigation transferring this case to the Middle District

of Tennessee, the Chattanooga Respondent moved Judge

Edgar to dismiss this action on March 6, 1996, pursuant to

Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure. At the time those motions were filed, State

judicial proceedings concerning civil citations to Ann Martin

and Renita Henegar, a dancer at DLS had been issued

pursuant to Chattanooga City Code § 25-85 and were being

litigated in the Tennessee State Courts at that time. All of the

Chattanooga Respondent had moved Judge Edgar to dismiss

the complaint based upon his previous rulings for the failure

to state a claim upon which relief could be granted and upon

Younger, supra, abstention grounds due to pending

Tennessee State Court actions involving the Chattanooga City

Ordinances. Pursuant to Brandon v. Holt, 469 U.S. 464,

471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985), Petitioners’

complaint failed to state a claim upon which relief could be

granted under 42 U.S.C. § 1983 since they were only named

in their capacities.

As indicated in the Statement of the Case, the

Chattanooga Petitioners did not respond to the pending motion

to dismiss at any time until after the Order of Judge Echols on

September 30, 1996, granted the motion to dismiss this

Chattanooga Respondent. Pursuant to Rule 12(b), matters

outside the pleading may be considered and the motion shall

be treated as one for summary judgment and disposed of as

provided in Rule 56. All parties shall be given a reasonable

opportunity to present all material made pertinent to such a

motion by Rule 56(e) of the Federal Rules of Civil Procedure.

In the case at bar following the filing of the motion to dismiss

on March 6, 1996, the Chattanooga Petitioners failed to

respond or submit any affidavits for legal argument

challenging the Respondent’ motion until after the ruling of

Judge Echols. Rule 56(e) clearly states:

When a motion for summary judgment is made

and supported as provided in this rule, an

adverse party may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there

is a genuine issue for trial. If the adverse

party does not so respond, summary

judgment, if appropriate, shall be entered

against the adverse party.

(Emphasis supplied)

The Chattanooga Respondent submit that the rulings

of Judge Echols and the Sixth Circuit were appropriate since

a number of the challenges to the Chattanooga Adult-

Establishment Ordinance §§ 11-421, et seq. had already been

considered by Judge Edgar and later by another panel of the

Sixth Circuit in DLS, Inc. v. City of Chattanooga, 107 F.3d

403 (6" Cir. 1997).

ah Oh et 4a x ok oe

The Chattanooga Respondent also submits that the

claims of the Chattanooga Petitioners challenging the

provisions of §§ i1-434(j) and 11-435(c)are now barred by

the doctrine of res judicata based upon the holding of the

Sixth Circuit in DLS, Inc. v. City of Chattanooga, 107 F.3d

403 (6" Cir. 1997). That panel of the Sixth Circuit previously

reviewed another attack by this Petitioner of many of the same

provisions of the Chattanooga Adult Establishment Ordinance

which are again challenged in this shotgun style attack. To

preclude parties from contesting matters that they have had a

full and fair opportunity to litigate protects their adversaries

from the expense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance on judicial

action by minimizing the possibility of inconsistent decisions.

At this point in time, it is obvious that where the

Chattanooga Petitioners have previously challenged and have

failed to appeal such ruling, this Court should not grant

Certiorari to interpret the same sections construed and found

to be Constitutional in DLS, Inc. v. City of Chattanooga, 107

F.3d 403 (6" Cir. 1997). The Chattanooga Respondent

would submit that the Chattanooga Petitioners have had a full

and fair opportunity to litigate the Constitutionality of many

sections of the Chattanooga Adult-Oriented Establishment

Ordinance before the Sixth Circuit on a prior occasion and

that the Chattanooga Petitioners are now barred by the

doctrine of res judicata from relitigating the same questions

which were or could have been litigated in the first action.

The failure to seek a Writ of Certiorari on a prior occasion

involving an identical ordinance section is a compelling

reason to deny this Writ on behalf of the Chattanooga

Petitioners.

3. THE PASSAGE OF THE STATE LAW ON

PUBLIC INDECENCY, CHAPTER 542, DID NOT

EFFECTIVELY PREEMPT LOCAL

ORDINANCES AGAINST PUBLIC NUDITY.

The argument of preemption of local municipalities by

the passage of Public Chapter 542 (codified at T.C.A. § 39-

13-511) was clearly considered by Judge Edgar in his

Memorandum Opinion of October 12, 1995. (Included as

Appendix 104 to Petition for Writ of Certiorari of DLS, Inc.).

Judge Edgar clearly determined that conflict with the

law of the State is the key point to be considered in an

analysis of whether a local ordinance is pre-empted by State

law in Tennessee. He reviewed Public Chapter 542 and

Chattanooga City Code § 25-85 and determined that those two

provisions defined “public place” somewhat differently. He

further found that this difference did not amount to such a

conflict as would nullify the local ordinance. On those factors

applicable to nude dancing, Judge Edgar found that there was

no appreciable difference between § 25-85 and the State

Statute especially in light of the narrow construction of the

Tennessee Supreme Court of the Chattanooga Ordinance.

Absent some specific language by the State Legislature

declaring its intentions that a particular statute should preempt

local ordinances, the mere fact that the State, in the exercise

of the police power has made certain regulations does not...

prohibit a municipality from exacting additional requirements.

See, Southern Railway v. City of Knoxville, 432 S.W.2d 619

(Tenn. 1968).

The Chattanooga Respondent would submit that

T.C.A. § 39-13-511 does not preempt the adoption of local

ordinances as a matter of Tennessee State law. Clearly, in the

Weal en)

case at bar siice the Chattanooga Ordinance has been in effect

since 1978, the General Assembly could have chosen to

preempt any local action if it had so chosen to do. The

Tennessee General Assembly has elected to preempt any other

regulation in the areas of gambling (T.C.A. § 39-17-509);

legislation regarding the regulation of tobacco products

(T.C.A. § 39-17-1551); blasting standards (T.C.A. § 68-105-

110); and manufactured home anchoring systems (T.C.A. §

68-126-412).

There is no Tennessee statute which preempts

municipalities from regulating nude dancing. To the contrary,

T.C.A. § 7-51-1406 clearly states

“Nothing in this chapter shall preempt or

prevent political subdivisions in this State from

enacting and enforcing other lawful and

reasonable restrictions, regulations, licensing,

zoning and other civil or administrative

provisions concerning the _location,

configuration, code compliance or other

business operation or requirements of adult-

oriented establishments and sexually oriented

businesses.

As such, the Chattanooga Respondent would submit

that the Sixth Circuit properly applied the law without

considering preemption in this case. In any event, a state law

preemption question is not a compelling reason for this Court

to grant a Writ of Certiorari within Supreme Court Rule 10 as

requested by Petitioners.

CONCLUSION

The Chattanooga Respondent would submit that none

of the reasons set forth in the Writ of Petitioner, DLS, Inc.

constitute compelling reasons for this Court to grant the Writ

in accordance with Supreme Court Rule 10. The Ruling of

the Sixth Circuit below does not conflict with relevant

decisions of this Court or call for an exercise of this Court’s

supervisory power. Respondent submits that there is no

inherent conflict in the ruling of the Sixth Circuit below which

would require Barnes to be revisited. The Sixth Circuit

correctly and appropriately applied this court’s ruling in

Barnes and considered the constitutionality of this Tennessee

statute and the Chattanooga Ordinance based upon the existing

law. As such, the Chattanooga Respondent respectfully urges

this Court to deny the Petition for Writ of Certiorari by DLS,

Inc. in this case.

Respectfully submitted,

/s/

RANDALL L. NELSON,

CITY ATTORNEY

/s/

PHILLIP A. NOBLETT- BPR #10074

Counsel for Respondent

801 Broad Street, Suite 400

Chattanooga, TN 37402

(423) 757-5338

ig tis ai Te TRAE OE ee TE Pe eT)

Appendix A

CHATTANOOGA CITY CODE

Sec. 25-84. Indecent exposure.

It shall be unlawful for any person in the city in a

public place to engage in the willful and intentional exposure

of such person's genitals or buttocks to one (1) or more other

persons where the exposing person may reasonably expect his

conduct to be viewed by another for the purpose of sexual

arousal, gratification or offending the viewing person. (Code

1986, § 25-84)

State law reference--Similar provisions, T.C.A., § 39-

2-614(a).

Sec. 25-85. Lewd and indecent conduct.

(a) Definitions. As used in this section, the following

terms shall have the meanings indicated:

Public place shall include: Streets, sidewalks or

highways; transportation facilities; schools; places of

amusement, parks, playgrounds; restaurants: nightclubs;

cocktail lounges; burlesque houses; bars; cabarets; taverns:

taprooms; private fraternal, social, golf or country clubs; or

any place that allows the consumption of intoxicating

beverages on the premises.

Wholly or substantially exposed to public view, as it

pertains to breasts, shall mean the showing of the female

breast, in a public plaice, with less than a fully opaque

covering of any portion of the breast below the top of the

nipple.

(b) Prohibited acts. It shall be unlawful for any person

to perform in a public place, or for any person who owns or

operates premises constituting a public place to knowingly

permit or allow to be performed therein, any of the following

acts or conduct:

(1) The performance of acts or simulated acts of

sexual intercourse, masturbation, sodomy,

bestiality, oral copulation, flagellation or any

sexual acts which are prohibited by law;

(2) The actual or simulated touching, caressing or

fondling of the breasts, buttocks, anus or

genitals in public; or

(3) The actual or simulated public displaying of

the pubic hair, anus, vulva or genitals;

(4) The appearance by any female in a public

place so costumed or dressed that one or both

breasts are wholly or substantially exposed to

public view, or any owner or operator of

premises constituting a public place knowingly

permitting or allowing any such person to

appear on the premises owned or operated by

him.

provisions of this section, upon conviction by the court, may

be imprisoned for not more than thirty (30) days, and shall be

fined not less than twenty-five dollars ($25.00), nor more than

fifty dollars ($50.00) for each violation. (Code 1986, § 25-85)

Cross reference--Definitions and rules of construction

; generally, § 1-2.

ABS eo iat te 0 OT rds Sach A a SS

ARTICLE XIV. ADULT-ORIENTED

ESTABLISHMENTS”

Sec. 11-421. Findings and purpose.

(a) The city council of the City of Chattanooga,

Tennessee, finds:

(1) That homogeneous and heterogeneous

masturbatory acts and other sexual acts,

including oral sex acts, are being done in

adult-oriented establishments in the City of

Chattanooga.

(2) That offering and providing such space, areas,

and rooms where such activities may take

place creates conditions that generate

prostitution and other crimes.

(3) That several days and nights of the week such

adult-oriented establishments, particularly

adult book stores containing mini-motion

picture facilities, are overcrowded and contain

more persons than such structures can safely

accommodate resulting in a definite fire hazard

since in the event of fire such persons would

not be able to safely leave all the cubicles,

booths and rooms of such establishments.

(4) That male prostitutes, particularly teenage

males, frequent said establishments for the

purpose of providing, within the premises of

such establishments, sex-for-hire.

10 Editor's note--The substantive provisions of Ord. No. 8601,

enacted March 4, 1986, are codified herein at the request of the

city;, designation of such provisions as Art. XIV, §§ 11-42111-437

was at the discretion of the editors.

Cross reference - Variances and special exceptions for

adult-oriented establishments in C-I, C-2, C-3 and M-1 zones, App.

B, Art. VIII, § 106.2(n).

(5) That the continued unregulated operation of

adult-oriented establishments would be

detrimental to the general welfare, health, and

safety of the citizens of the City of

Chattanooga.

(b) It is the purpose of this article to promote and

secure the general welfare, health, and safety

of the citizens of the City of Chattanooga.

(Code 1986, § 11-421; Ord. No. 9654, § 2, 1-

6-92)

Editor's note--The substantive provisions of Ord. No. 8601,

enacted March 4, 1986, are codified herein at the request of the

city;, designation of such provisions as Art. XIV, §§ 11-42111-437

was at the discretion of the editors.

Cross reference - Variances and special exceptions for adult-

oriented establishments in C-I, C-2, C-3 and M-1 zones, App. B,

Art. VIII, § 106.2(n).

Sec. 11-422. Definitions.

For the purpose of this article, the words and phrases

used herein shall have the following meanings, unless

otherwise clearly indicated by the context:

(a) Adult-oriented establishment shall include, but

not be limited to, "adult bookstores,"" adult

motion picture theaters," "adult mini-motion

picture establishments," or "adult cabaret" and

further means any premises to which the public

patrons or members are invited or admitted

and which are so physically arranged as to

provide booths, cubicles, rooms,

compartments or stalls separate from the

common areas of the premises for the purpose

of viewing adult-oriented motion pictures, or

wherein an _ entertainer provides adult

entertainment to a member of the public, a

patron or a member, when such adult

entertainment is held, conducted, operated or

maintained for a profit, direct or indirect. An

SRE RB EA EADS rt SER Aes

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(b)

(c)

(d)

"adult-oriented establishment" further

includes, without being limited to, any "adult

entertainment studio" or any premises that is

physically arranged and used as such, whether

advertised or represented as an adult

entertainment studio, rap studio, exotic dance

Studio, encounter studio, sensitivity studio,

modeling studio or any other term of like

import.

Adult bookstore means an establishment

having as a substantial or significant portion of

its stock and trade in books, films, video

Cassettes, Or magazines and other periodicals

which are distinguished or characterized by

their emphasis on matter depicting, describing

or relating to "specified sexual activities" or

"specified anatomical areas" as defined below,

and in conjunction therewith have facilities for

the presentation of adult entertainment, as

defined below, and including adult-oriented

films, movies, or live entertainment, for

observation by patrons therein.

Adult motion picture theater means an enclosed

building with a capacity of fifty. (50) or more

persons regularly; used for presenting material

having as a dominant theme or presenting

material distinguished or characterized by an

emphasis on matter depicting, describing or

relating to "specified sexual activities" or

"specified anatomical areas," as defined

below, for observation by patrons therein.

Adult mini-motion picture theater means an

enclosed building with a Capacity of less than

fifty (50) persons regularly used for presenting

material distinguished or characterized by an

emphasis on matter depicting, describing or

relating to "specified sexual activities" or

"specified anatomical areas," as defined

below, for observation by patrons therein.

(e)

(f)

(g)

(h)

(i)

Adult cabaret is defined to mean an

establishment which features as a principle use

of its business, entertainers and/or waiters

and/or bartenders who expose to public view

of the patrons within said establishment, at any

time, the bare female breast below a point

immediately above the top of the areola,

human genitals, pubic region, or buttocks,

even if partially covered by opaque material or

completely covered by translucent material;

including swim suits, lingerie or latex

covering. Adult cabarets shall include

commercial establishments which feature

entertainment of an erotic nature including

exotic dancers, strippers, male or female

impersonators, or similar entertainers.

City Council means the City Council of the

City of Chattanooga, Tennessee.

Employee means any and all persons, including

independent contractors, who work in or at or

render any services directly related to the

operation of an adult-oriented establishment.

Entertainer means any person who provides

entertainment within an _ adult-oriented

establishment as defined in this section,

whether or not a fee is charged or accepted for

entertainment and whether or _ not

entertainment is provided as an employee or an

independent contractor.

Adult-entertainment means any exhibition of

any adult-oriented motion pictures, live

performance, display or dance of any type,

which has a significant or substantial portion

of such performance any actual or simulated

performance of specified sexual activities or

exhibition and viewing-of specified anatomical

areas, removal of articles of clothing or

appearing unclothed, pantomime, modeling, or

ST a

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any other personal service offered customers.

(j) Operator means any person, partnership, or

corporation operating, conducting or

maintaining an adult-oriented establishment.

(k) Specified sexual activities means:

(1) Human genitals in a state of sexual

stimulation or arousal:

(2) Acts of human masturbation, sexual

intercourse or sodomy;

(3) Fondling or erotic touching of human

genitals, pubic region, buttock or

female breasts.

(1) Specified anatomical areas means:

(1) Less than completely and opaquely

covered:

(i) Human genitals, pubic region;

(ii) Buttocks;

(iii) | Female breasts below a point

immediately above the top of

the areola; and

(2) Human male genitals in a discernibly

turgid state, even if completely opaquely covered.

(Code 1986, § 11-422; Ord. No. 9654, § 87, 1-6-92; Ord.

No. 9982, § 2, 12-14-93; Ord. No. 10178; § 1, 3-7-95)

Sec. 11-423. License required.

(a) Except as provided in subsection (e) below, from

and after the effective date of this article, no adult-oriented

establishment shall be operated or maintained in the City of

Chattanooga without first obtaining a license to operate issued

by the City of Chattanooga.

(b) A license may be issued only for one (1) adult-

oriented establishment located at a fixed and certain place.

Any person, partnership, or corporation which desires to

operate more than one (1) adult-oriented establishment must

have a license for each.

transferred to any person, partnership or corporation.

(d) It shall be unlawful for any entertainer, employee

or operator to knowingly work in or about, or to knowingly

perform any service directly related to the operation of any

unlicensed adult-oriented establishment.

(e) All existing adult-oriented establishments at the

time of the passage of this article must submit an application

for a license within one hundred twenty (120) days of the

passage of this article on third and final reading. If a license

is not issued within said one-hundred-twenty-day period, then

such existing adult-oriented establishment shall cease

operations. (Code 1986, § 11-423)

Sec. 11-424. Application for license.

(a) Any person, partnership, or corporation desiring to

secure a license shall make application to the city treasurer.

The application shall be filed in triplicate with and dated by

the city treasurer. A copy of the application shall be

distributed promptly by the city treasurer to the Chattanooga

Police Department and to the applicant.

(b) The application for a license shall be upon a form

provided by the city treasurer. An applicant for a license

including any partner or limited partner of the partnership

applicant, and any officer or director of the corporate

applicant and any stockholder holding more than five (5)

percent of the stock of a corporate applicant, or any other

person who is interested directly in the ownership or

operation of the business, shall furnish the following

information under oath:

(1) Name and address, including all aliases.

“te Pe ey a Sen ea we mee Mae Pe eed Dae ae RD ae Sac Hina ib ey

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

(10)

Written proof that the individual is at least

eighteen (18) years of age.

All residential addresses of the applicant for

the past three (3) years.

The applicant's height, weight, color of eyes

and hair.

The business, occupation or employment of the

applicant for five (5) years immediately

preceding the date of the application.

Whether the applicant previously operated in

this or any other county, city or state under an

adult-oriented establishment license or similar

business license: whether the applicant has

ever had such a license revoked or suspended,

the reason therefor, and the business entity or

trade name under which the applicant operated

that was subject to the suspension or

revocation:'

All criminal statutes, whether federal or state,

Or city ordinance violation convictions,

forfeiture of bond and pleadings of nolo

contendere on all charges, except minor traffic

violations.

Fingerprints and two (2) portrait photographs

at least two (2) inches by two (2) inches of the

applicant.

The address of the adult-oriented establishment

to be operated by the applicant.

The names and addresses of all persons,

partnerships, or corporations holding any

beneficial interest in the real estate upon which

such adult-oriented establishment is to be

operated, including but not limited to, contract

purchasers or sellers, beneficiaries of land

trust or lessees subletting to applicant.

(11) _ If the premises are leased or being purchased

under contract, a copy of such lease or

contract shall accompany the application.

(12) The length of time the applicant has been a

resident of the City of Chattanooga, or its

environs, immediately preceding the date of

the application.

(13) If the applicant is a corporation, the

application shall specity the name of the

.corporation, the date and _ state of

incorporation, the name and address of the

registered agent and the name and address of

all principal shareholders, officers and

directors of the corporation.

(14) A statement by the applicant that he or she is

familiar with the provisions of this article and

is in compliance with them.

(15) All inventory, equipment, or supplies which

are to be leased, purchased, held in

consignment or in any other fashion kept on

the premises or any part or portion thereof for

storage, display, any other use therein, or in

connection with the operation of said

establishment, or for resale, shall be identified

in writing accompanying the application

specifically designating the distributor business

name, address phone number, and

representative's name.

investigation conducted by the Chattanooga Police

Department, the city treasurer shall notify the applicant that

his application is granted, denied or held for further

investigation. Such additional investigation shall not exceed an

additional thirty (30) days unless otherwise agreed to by the

applicant. Upon conclusion of such additional investigation,

10a

the city treasurer shall advise the applicant in writing whether

the application is granted or denied.

(d) Whenever an application is denied or held for

further investigation, the city treasurer shall advise the

applicant in writing of the reasons for such action. If the

applicant requests a hearing within ten (10) days of receipt of

notification of denial, a public hearing shall be held thereafter

before the city council at which time the applicant may

present evidence as to why his license should not be denied.

The city council shall hear evidence as to the basis of the

denial and shall affirm or reject the denial of an application at

the hearing. If any application for an adult-oriented

establishment license is denied by the city council and no

agreement is reached with the applicant concerning the basis

for denial, the city attorney shall institute suit for declaratory

judgment in the Chancery Court of Hamilton County,

Tennessee, within five (5) days of the date of any such denial

and shall seek an immediate judicial determination of whether

such license or permit may be properly denied under the law.

(e) Failure or refusal of the applicant to give any

information relevant to the investigation of the application, or

his or her refusal or failure to appear at any reasonable time

and place for examination under oath. regarding said

application or his or her refused to submit to or cooperate

with any investigation required by this article, shall constitute

an admission by the applicant that he or she is ineligible for

such license and shall be grounds for denial thereof by the city

treasurer.

(Code 1986, § 11-424; Ord. No. 9654, § 2, 1-6-92; Ord. No.

9980, § 1, 11-23-93)

Sec. 11-425. Standards for issuance of license.

(a) To receive a license to operate an adult-oriented

establishment, an applicant must meet the following

standards:

(1) If the applicant is an individual:

lla

(i) The applicant shall be at least eighteen

(18) years of age.

(ii) | The applicant shall not have been

convicted of or pleaded _ nolo

contendere to a felony or any crime

involving moral turpitude, prostitution,

obscenity, or other crime of a sexual

nature in any jurisdiction within five

(5) years immediately preceding the

date of the application.

(iii) |The applicant shall not have been

found to have previously violated this

article within five (5) years

immediately preceding the date of the

application.

(2) If the applicant is a corporation:

(i) All officers, directors and stockholders

required to be named under section 1 1-

424 (b) shall be at least eighteen (18)

years of age.

(ii) No officer, director or stockholder

required to be named under section 11-

424(b) shall have been convicted of or

pleaded nolo contendere to a felony or

any crime involving moral turpitude,

prostitution, obscenity or other crime

of a sexual nature in any jurisdiction

within five (5) years immediately

preceding the date of the application;

(iii) No officer, director, or stockholder

required to be named under section 11-

424(b) shall have been found to have

previously violated this article within

five (5) years immediately preceding

the date of the application.

12a

(3) If the applicant is a partnership, joint venture,

or any other type of organization where two

(2) or more persons have a financial interest:

(i) All persons having a financial interest

in the partnership, joint venture or

other type of organization shall be at

least eighteen (18) years of age.

(ii) | No persons having a financial interest

in the partnership, joint venture or

other type of organization shall have

been convicted of or pleaded nolo

contendere to a felony or any crime

involving moral turpitude, prostitution,

obscenity or other crime of a sexual

nature in any jurisdiction within five

(5) years immediately preceding the

date of the application.

(iii) No persons having a ‘financial interest

in the partnership, joint venture or

other type of organization shall have

been found to have previously violated

this article within five (5) years

immediately preceding the date of the

application.

(b) No license shall be issued unless the Chattanooga

Police Department has investigated the applicant's

qualifications to be licensed. The results of that investigation

shall be filed in writing with the city treasurer no later than

twenty (20) days after the date of the application. (Code 1986,

§ 11-425)

Sec. 11-426. Permit required.

In addition to the license requirements previously set

forth for owners and operators of "adult-oriented

establishments," no person shall be an employee or entertainer

in an adult-oriented establishment without first obtaining a

13a

valid permit issued by the city treasurer.

(Code 1986, § 11-426; Ord. No. 10178, § 2, 3-7-95)

Sec. 11-427. Application for permit.

(a) Any person desiring to secure a permit shall make

application to the city treasurer. The application shall be fried

in triplicate with and dated by the city treasurer. A copy of

the application shall be distributed promptly by the city

treasurer to the Chattanooga Police Department and to the

applicant.

(b) The application for a permit shall be upon a form

provided by the city treasurer. An applicant for a permit shall

furnish the following information under oath:

(1) Name and address, including all aliases.

(2) Written proof that the individual is at least

eighteen (18) years of age.

(3) All residential addresses of the applicant for

the past three (3) years.

(4) The applicant's height, weight, color of eyes,

and hair.

(5) The business, occupation or employment of the

applicant for five (5) years immediately

preceding the date of the application.

(6) Whether the applicant, while previously

operating in this or any other city or state

under an adult-oriented establishment permit

or similar business for whom applicant was

employed or associated at the time, has ever

had such a permit revoked or suspended, the

reason therefor, and the business entity or

trade name for whom the applicant was

employed or associated at the time of such

suspension or revocation.

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(7) All criminal statutes, whether federal, state or

city ordinance violation, convictions, forfeiture

of bond and pleadings of nolo contendere on

all charges, except minor traffic violations.

(8) Fingerprints and two (2) portrait photographs

at least two (2) inches by two (2) inches of the

applicant.

(9) The length of time the applicant has been a

resident of the City of Chattanooga, or its

environs, immediately preceding the date of

the application.

(10) A statement by the applicant that he or she is

familiar with the provisions of this article and

is in compliance with them.

investigation conducted by the Chattanooga Police

Department, the city treasurer shall notify the applicant that

his application is granted, denied, or held for further

investigation. Such additional investigation shall not exceed an

additional thirty (30) days unless otherwise agreed to by the

applicant. Upon the conclusion of such additional

investigations, the city treasurer shall advise the applicant in

writing whether the application is granted or denied.

(d) Whenever an application is denied or held for

further investigation, the city treasurer shall advise the

applicant in writing of the reasons for such action. If the

applicant requests a hearing within ten (10) days of receipt of

notification of denial, a public hearing shall be held thereafter

before the city council at which time the applicant may

present evidence bearing upon the question.

(e) Failure or refusal of the applicant to give any

information relevant to the investigation of the application, or

his or her refusal or failure to appear at any reasonable time

and place for examination under oath regarding said

application or his or her refusal to submit to or cooperate with

any investigation required by this article, shall constitute an

15a

admission by the applicant that he or she is ineligible for such

permit and shall be grounds for denial thereof by the board.

(Code 1986, § 11-427; Ord. No. 9654, § 2, 1-6-92)

Sec. 11-428. Standards for issuance of permit.

(a) Toreceive a permit as an employee, an applicant

must meet the following standards:

(1) The applicant shall be at least eighteen (18)

years of age.

(2) The applicant shall not have been convicted of

or pleaded no contest to a felony or any crime

involving moral turpitude or prostitution,

obscenity or other crime of a sexual nature in

any jurisdiction within five (5) years

immediately preceding the date of the

application.

(3) The applicant shall not have been found to

violate any provision of this article within five

(5) years immediately preceding the date of the

application.

(b) No permit shall be issued until the Chattanooga

Police Department has investigated the applicant's

qualifications to receive a permit. The results of that

investigation shall be filed in writing with the city treasurer

not later than twenty (20) days after the date of the

application. (Code 1986, § 11-428)

Sec. 11-429. Fees.

(a) A license fee of five hundred dollars ($500.00)

shall be submitted with the application for a license. If the

application is denied, one-half (2) of the fee shall be

returned.

(b) A permit fee of one hundred dollars ($100.00) shall

be submitted with the application for a permit. If the

l6a

Batak iat ai tees a

application is denied, one-half (4%) of the fee shall be

returned. (Code 1986, § 11-429)

Sec. 11-430. Display of license or permit.

(a) The license shall be displayed in a conspicuous

public place in the adult-oriented establishment.

(b) The permit shall be carried by an employee upon

his or her person and shall be displayed upon request of a

customer, any member of the Chattanooga Police Department,

or any person designated by the city council. (Code 1986, §

11-430; Ord. No. 9654, § 87, 1-6-9.)

Sec. 11-431. Renewal of license or permit.

(a) Every license issued pursuant to this article will

terminate at the expiration of one (1) year from the date of

issuance, unless sooner revoked, and must be renewed before

Operation is allowed in the following year. Any operator

desiring to renew a license shall make application to the city

treasurer. The application for renewal must be filed not later

than sixty days (60) days before the license expires. The

application for renewal shall be filed in triplicate with and

dated by the city treasurer, A copy of the application for

renewal shall be fried in triplicate with and dated by the city

treasurer. A copy of the application for renewal shall ‘be

distributed promptly by the city treasurer to the Chattanooga

Police Department and to the operator. The application for

renewal shall be upon a form provided by the city treasurer

and shall contain such information and data, given under oath

or affirmation, as may be required by the city council.

(b) A license renewal fee of five hundred dollars

($500.00) shall be submitted with the application for renewal.

In addition to the renewal fee, a late penalty of one hundred

dollars ($100.00) shall be assessed against the applicant who

files for a renewal less than sixty (60) days before the license

expires. If the application is denied, one-half (2) of the total

fees collected shall be returned.

17a

any information bearing on the operator's qualifications, that

information shall be filed in writing with the city treasurer.

(d) Every permit issued pursuant to this article will

terminate at the expiration of one (1) year from the date of

issuance unless sooner revoked, and must be renewed before

an employee is allowed to continue employment in an adult-

oriented establishment in the following calendar year. Any

employee desiring to renew a permit shall make application to

the city treasurer. The application for renewal must be filed

not later than sixty (60) days before the permit expires. The

application for renewal shall be filed in triplicate with and

dated by the city treasurer. A copy of the application for

renewal shall be distributed promptly by the city treasurer to

the Chattanooga Police Department and to the employee. The

application for renewal shall be upon a form provided by the

city treasurer and shall contain such information and data,

given under oath or affirmation, as may be required by the

city treasurer.

(e) A permit renewal fee of one hundred dollars

($100.00) shall be submitted with the application for renewal.

In addition to said renewal fee, a late penalty of fifty dollars

($50.00) shall be assessed against the applicant who files for

renewal less than sixty (60) days before the license expires. If

the application is denied, one-half (12) of the fee shall be

returned.

(f) Ifthe Chattanooga Police Department is aware of

any information bearing on the employee's qualifications, that

information shall be filed in writing with the city treasurer.

(Code 1986, § 11-431; Ord. No. 9654, § 2, 1-6-92)

Sec. 11432. Revocation of license or permit.

(a) The mayor shall revoke a license or permit for any of

the following reasons:

(1) Discovery that false or misleading information

or data was given on any application or

material facts were omitted from any

18a

application.

(2)

(3)

(4)

(5)

(6)

(7)

(8)

The operator, entertainer, or any employee of

the operator, violates any provision of this

article or any rule or regulation adopted by the

city council pursuant to this article: provided,

however, that in the case of a first offense by

an operator where the conduct was solely that

of an employee, the penalty shall not exceed a

Suspension of thirty (30) days if the City

council shall find that the operator had no

actual or constructive knowledge of such

violation and could not by the exercise of due

diligence have had such actual or constructive

knowledge.

The operator or employee becomes ineligible

to obtain a license or permit.

Any cost or fee required to be paid by this

article is not paid.

An operator employs an employee who does

not have a permit or provides space on the

premises, whether by lease or otherwise, to

an independent contractor who performs or

works as an entertainer without a permit.

Any intoxicating liquor, cereal malt beverage,

narcotic or controlled substance is allowed to

be sold or consumed on the licensed premises.

Any operator, employee or entertainer sells,

furnishes, gives or displays, or causes to be

sold, furnished, given or displayed to any

minor any adult-oriented entertainment or

adult-oriented material.

Any operator, employee or entertainer denies

access of law enforcement personnel to any

portion of the licensed premises wherein adult-

oriented entertainment is permitted or to any

19a

portion of the licensed premises wherein adult-

oriented material is displayed or sold.

(9) Any operator allows continuing violations of

the rules and regulations of the Chattanooga-

Hamilton County Health Department.

(10) Any operator fails to maintain the licensed

premises in a clean, sanitary and safe

condition.

(b) The mayor, before revoking or suspending any

license or permit, shall give the operator or employee at least

ten (10) days’ written notice of the charges against him or her

and the opportunity for a public hearing before the city

council, at which time the operator or employee may present

evidence bearing upon the question. In such cases, the charges

shall be specific and in writing.

license shall automatically and immediately revoke the

license. The transfer of any interest in a nonindividual

operator's license shall automatically and immediately revoke

the license held by the operator.

(d) Any operator or employee whose license or permit

is revoked shall not be eligible to receive a license or permit

for five (5) years from the date of revocation. No location or

premises for which a license has been issued shall be used as

an adult-oriented establishment for two (2) years from the date

of revocation of the license.

(Code 1986, § 11-432; Ord. No. 9654, §§ 2, 13, & 88, 1-6-

92)

Sec. 11-433. Hours of operation.

(a) No adult-oriented establishment shall be open

between the hours of 3:00 a.m. and 8:00 a.m. on weekdays or

between the hours of 3:00 a.m. and 12:00 noon on Sundays.

(b) All adult-oriented establishments shall be open to

inspection at all reasonable times by the Chattanooga Police

20a

Department or such other persons as the city council may

designate.

(Code 1986, § 11-433; Ord. No. 9654, § 2, 1-6-92)

Sec. 11-434. Responsibilities of the operator.

(a) The operator shall maintain a register of all

employees, showing the name, and aliases used by the

employee, home address, age, birthdate, sex, height, weight,

color of hair and eyes, phone numbers, social security

number, date of employment and termination, and duties of

each employee and such other information as may be required

by the city council. The above information on each employee

shall be maintained in the register on the premises for a period

of three (3) years following termination.

(b) The operator shall make the register of employees

available immediately for inspection by police upon demand

of a member of the Chattanooga Police Department at all

reasonable times.

a violation of the provisions of this article shall be deemed the

act Or Omission of the operator if such act or omission occurs

either with the authorization, knowledge, or approval of the

operator, or as a result of the operator's negligent failure to

supervise the employee's conduct, and the operator shall be

punishable for such act or omission in the same manner as if

the operator committed the act or caused the omission.

(d) An operator shall be responsible for the conduct of

all employees while on the licensed premises and any act or

omission of any employee constituting a violation of the

provisions of this article shall be deemed the act or Omission

of the operator for purposes of determining whether the

operator's license shall be revoked, Suspended or renewed.

(e) There shall be posted and conspicuously displayed

in the common areas of each adult-oriented establishment a

list of any and all entertainment provided on the premises.

Such list shall further indicate the specific fee or charge in

dollar amounts for each entertainment listed. Viewing adult-

2la

iin icaliieeiniaiiealidiliamieei

oriented motion pictures shall be considered as entertainment.

The operator shall make the list available immediately upon

demand of the Chattanooga Police Department at all

reasonable times.

(f) No employee of an adult-oriented establishment

shall allow any minor to loiter around or to frequent an adult-

oriented establishment or to allow any minor to view adult

entertainment as defined herein.

(g) Every adult-oriented establishment shall be

physically arranged in such a manner that the entire interior

portion of the booths, cubicles, rooms or stalls, wherein adult

entertainment is provided, shall be visible from the common

area of the premises. Visibility shall not be blocked or

obscured by doors, curtains, partitions, drapes, or any other

obstruction whatsoever. It shall be unlawful to install booths,

cubicles, rooms or stalls within adult-oriented establishments

for whatever purpose, but especially for the purpose of

secluded viewing of adult-oriented motion pictures or other

types of adult entertainment.

(h) The operator” shall be responsible for and shall

provide that any room or area used for the purpose of viewing

adult-oriented motion pictures or other types of live adult

entertainment shall be readily accessible at all times and shall

be continuously opened to view in its entirety.

(i) | No operator, entertainer, or employee of an

adult-oriented establishment shall demand or collect all or any

portion of a fee for entertainment before its completion.

(j) A sign shall be conspicuously displayed in the

common area of the premises, and shall read as follows:

This Adult-Oriented Establishment is Regulated

by Chattanooga City Code, Parc Il [Chapter

11], Article XV, Section{s} 11-421 through 11-

457. Entertainers Are:

l. Not permitted to engage in any type of sexual

conduct;

22a

2. Not permitted to expose their sex organs;

3. Not permitted to demand or collect all or any

portion of a fee for entertainment before its

completion.

(Code 1986, § 11-434: Ord. No. 9654, § 2, 1-6-92)

Sec. 11-435. Prohibitions and unlawful sexual acts.

(a) No operator, entertainer, or employee of an adult-

oriented establishment shall permit to be performed, offer to

perform, perform or allow customers, employees or

entertainers to perform sexual intercourse or oral or anal

copulation or other contact stimulation of the genitalia.

(b) No operator, entertainer, or employee shall

encourage OF permit any person upon the premises to touch,

caress, or fondle the breasts, buttocks, anus or genitals of any

other person.

shall be unclothed or in such attire, costume, or clothing so as

tO expose to view any portion of the sex organs, breasts or

buttocks of said operator, entertainer, or employee with the

intent to arouse or gratify the sexual desires of the operator,

entertainer, employee, or customer.

(d) No entertainer, employee or customer shall be

permitted to have any physical contact with any other on the

premises during any performance and all performances shall

only occur upon a Stage at least eighteen inches (18") above

the immediate floor level and removed at least six feet (6')

from the nearest entertainer, employee and/or customer.

(Code 1986, 9 11-435; Ord. No. 10178, 99 8-4, 8-7-95)

Sec. 11-436. Penalties and prosecution.

(a) Any person, partnership, or corporation who is

found to have violated this article shall be fined a definite sum

not exceeding fifty dollars ($50.00) and shall result in the

suspension or revocation of any permit or license.

23a

(b) Each violation of this article shall be considered a

separate offense, and any violation continuing more than one

(1) hour of time shall be considered a separate offense for

each hour of violation. (Code 1986, 9 11-436)

Sec. 11-487. Invalidity of part.

Should any court of competent jurisdiction declare any

section, clause, or provision of this article to be

unconstitutional, such decision shall affect only such section,

clause, or provision so declared unconstitutional, and shall not

affect any other section, clause or provision of this article.

(Code 1986, 9 11-437)

Secs. 11-438-- 11-449. Reserved.

ARTICLE XV. TEEN SOCIAL CLUBS

Sec. 11-450. Definitions.

For purposes of this Article, the words and phrases

used herein shall have the following meanings, unless

otherwise clearly indicated by the context:

(a) Teen social club shall include, but not be limited

to, any business establishment which advertises itself or holds

itself out to the public as a "teen club" or "teen dance club"

and which provides entertainment and social activities to

which public patrons or members between the ages of 12 and

21 are admitted to participate regardless of whether such

establishment is conducted, operated, or maintained for a

profit.

24a

ORDINANCE NO. 10270

AN ORDINANCE TO AMEND

CHATTANOOGA CITY CODE, PART II,

CHAPTER 11, RESTIVE TO ADULT-

ORIENTED ESTABLISHMENTS.

SECTION 1. BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF CHATTANOOGA,

TENNESSEE, that Chattanooga city Code, Part II, Section

11-424(b) be and hereby is amended by deleting the second

sentence thereof up to and including the colon and inserting

in lieu thereof the following:

An applicant for a license shall furnish the

following information under oath:

SECTION 2. BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF CHATTANOOGA.

TENNESSEE, that Chattanooga city Code, Part II, Section

11-424(b) be and hereby is amended by deleting subsection

(b) (13) in its entirety and inserting in lieu thereof the

following:

(13) If the applicant is a corporation, the

application shall specify the name, address and

telephone number of the corporation, the date

and state of incorporation, the name and

address of the registered agent for service of

process of the corporation, the names and

addresses of the officers and directors of the

corporation, and the names and addresses of

any persons holding fifty percent (50%) or

more of the stock of the corporation; if the

applicant is a partnership, the application shall

specify the name and address of the

partnership, the name and address of all

general partners of the partnership; if the

partnership is a limited partnership, the

application shall specify the name and address

of all general partners who have a controlling

interest in the partnership.

25a

SECTION 3. BE IT FURTHER ORDAINED that

Chattanooga City Code, Part II, be and hereby is amended by

adding a new section 11-438 as follows:

§11-438. Denial of Applications or Renewals.

(a) As used in this section, "application" shall

mean "(i) an application for a license, (ii) an

application for a permit, (iii) an application for

a license renewal, and (iv) an application for a

permit renewal.

(b) Whenever an application is denied, the city

Treasurer shall notify the applicant in writing

of the reasons for such action; such notice

shall also advise the applicant of the

applicant's right to request a hearing before the

City Council. If the applicant desires to

request a hearing before the City Council to

contest the denial of an application, such

request shall be made in writing to the Clerk of

the City Council within ten (10) days of the

applicant's receipt of the notification of the

denial of the application. If the applicant

timely requests such a hearing, a public

hearing shall be held within fifteen (15) days

of the Clerk's receipt of such request before

the city Council at which time the applicant

may present evidence as to why the application

should not be denied. The City Council shall

hear evidence concerning the basis for denial

of the application and shall affirm or reverse

the denial of an application at the conclusion of

said hearing; any such hearing shall be

concluded no later than twenty-two (22) days

after the applicant's receipt of notification of

denial of an application, unless an extension

beyond such time period is requested by the

applicant and granted by the City Council.

application, the office of the City Attorney

26a

Shall institute suit for declaratory judgment in

a court of record in Hamilton County,

Tennessee, within five (5) days of the date of

any such denial seeking an immediate judicial

determination of whether such application has

been properly denied under the law.

SECTION 4. BE IT FURTHER ORDAINED that

Chattanooga City Code, Part II, Section 11-424(d), be and

hereby is amended by deleting said subsection in its entirety

and redesignating subsection 1!-424(e) as 11-424(d).

SECTION 5. BE IT FURTHER ORDAINED that

Chattanooga City Code, Part II, Section 11-427(d), be and

hereby is amended by deleting said subsection in its entirety

and redesignating subsection 11-427(e) as 11-427(d).

SECTION 6. BE IT FURTHER ORDAINED that

Chattanooga City Code, Part II, Section 11-431, be and

hereby is amended by adding a new subsection (g) as follows:

(g) Notwithstanding anything herein to the

contrary, any application for renewal of a

license or for renewal for a permit shall be

handled, investigated and approved or denied

within the same time periods as those

established in this Article for original license

applications and permit applications. In the

event a license renewal application or permit

renewal application is denied, the applicant

Shall have all rights of appeal to the City

Council as set forth in §11-438 of this Article.

SECTION 7. BE IT FURTHER ORDAINED that

Chattanooga City Code, Part II, Section 11-432, be and

hereby is amended by deleting subsections (b) and (c) in their

entirety and inserting in lieu thereof the following:

(b) Notwithstanding anything herein to

the -- contrary, before revoking or suspending

any license or permit, the Mayor shall give the

license holder or permit holder not less than

27a

ten (10) nor more than twenty (20) days'

written notice of the charges against such

license holder or permit holder and of the

revocation of such license or permit, or of the

period of time such license or permit is to be

suspended; such notice shall also advise the

license holder or permit holder of the license

holder's or permit holder's right to request a

hearing before the City Council. In the event

the license holder or permit holder does not

request in writing a hearing before the City

Council within the time set forth in such

notice, the suspension or revocation shall be

effective beginning the date set forth in such

notice.

If the license holder or permit holder

desires to request a hearing before the city

Council to contest the suspension or

revocation, such request shall be made in

writing to the Clerk of the city Council within

ten (10) days of the license holder's or permit

holder's receipt of the notification from the

Mayor. If the license holder or permit holder

timely requests such a hearing, the effective

date of a suspension or hearing shall be stayed

pending the final outcome of judicial

proceedings to determine whether such license

Or permit has been properly revoked or

suspended under the law.

If the license holder or permit holder

timely requests such a hearing, a public

hearing shall be held within fifteen (15) days

of the Clerk's receipt of such request before

the city Council at which time the license

holder or permit holder may present evidence

as to why the suspension or revocation is

improper or contrary to the provisions of this

Article. The city Council shall hear evidence

concerning the basis for such suspension or

revocation and shall affirm or reverse the

28a

suspension or revocation at the conclusion of

Said hearing; any such hearing shall be

concluded no later than twenty-two (22) days

after the license holder's or permit holder's

receipt of notification of the suspension or

revocation, unless an extension beyond such

time period is requested by the license holder

or permit holder and granted by the City

Council.

the Office of the City Attorney shall institute suit for

declaratory judgment in a court of record in Hamilton County,

Tennessee, within five (5) days of the date of any such

affirmation seeking an immediate judicial determination of

whether such license or permit has been properly revoked or

Suspended under the law.

SECTION 8. BE IT FURTHER ORDAINED that this

ordinance shall take effect two weeks from and after its

passage as required by law.

PASSED on Third and Final

Reading August 1, 1995.

APPROVED: _X DISAPPROVED:

DATE: August 2, 1995.

/s/

CHAIRPERSON

/s/

MAYOR

29a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.