CINCINNATI (CN) - A Memphis nightclub cannot grandfather in nude dancing and must following current zoning laws that prohibit adult entertainment, the 6th Circuit ruled.
The new ruling marks the second time 600 Marshall Entertainment Concepts LLC, which operates a club known as The Spot, has appealed a federal judge's adverse findings in its case against the Home of the Blues.
Various entities have operated the site as a bar, club or similar entity since at least the 1970s. Throughout the decades, many of these businesses offered adult entertainment and nude dancing.
Charles Westlund sought to do the same when he bought 600 Marshall in 2005, but was surprised to learn that the club fell within the central business district (CBD) of Memphis where adult entertainment had been outlawed since 1993.
His company filed suit in 2005, claiming that grandfather protections should permit the use of nude dancers at The Spot.
A federal judge for the Western District of Tennessee concluded, however, that any adult entertainment that occurred at 600 Madison since 1991 had been unlawful since the location had not obtained a dance permit in those years.
In the first appeal, the 6th Circuit called for further development of 600 Marshall's constitutional claims.
The lower court did so but still ruled against 600 Madison, but this time the federal appeals court affirmed.
"This whole dispute has put the proverbial cart before the horse," Judge David McKeague wrote for a three-member panel. "The bottom lime here is that nude dancing is not an activity than can be grandfathered because it was not being legally conducted when the 1993 ordinance changed the zoning laws to prohibit adult entertainment in the CBD."
In support of its findings the panel cited Coe v. City of Sevierville, a 2000 Tennessee Court of Appeals case involving the construction of a sign on private property that was eventually outlawed by a zoning ordinance.
That state appellate panel had found that "when a legal use becomes illegal by virtue of a zoning change, a grandfather statute may protect the use."
"In this case, however, illegal activity under state law became illegal under municipal ordinance by virtue of a zoning change," McKeague wrote.
Though 600 Marshall sought to grandfather in nude dancing as a pre-existing nonconforming use, the panel found that "nude dancing was an illegal activity in 1993, and illegal activities are not entitled to grandfathering."
"As in Coe, the fact that 600 Marshall has since obtained a dance permit is irrelevant," McKeague added. "Since nude dancing was illegal in 1993, it is not entitled to grandfathering."
The panel also rejected 600 Marshall's constitutional claims against the so-called Dance Hall ordinance, which requires a permit to present paid dancers.
McKeague said 600 Marshall could not argue that the nude dancing is a protected expressive activity because it never raised this claim at the District Court level.
The ordinance is also too simple to be unconstitutionally vague, the court found.
"Although 600 Marshall complains that the ordinance does not tell officials how to deal with adult entertainment or nonconforming uses, the ordinance has nothing to do with those things," McKeague wrote. "Nonconforming uses and the legality of adult entertainment in a certain location are topics addressed in the zoning laws. The fact that the ordinance does not contain provisions addressing adult entertainment or nonconforming uses may mean that the ordinance is not all-encompassing, but it does not mean that it is vague."
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