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March 2, 1990.


The opinion of the court was delivered by

This is an appeal by the City of Wichita (City) from the district court's holding that an ordinance enacted by the City to regulate erotic dance studios was void because it was unconstitutionally vague.

The defendant, Bobbie L. Wallace, was found guilty in Wichita Municipal Court of operating an exotic dance studio between midnight and 6:00 a.m., in violation of Wichita, Kan., Code § 3.06.140 (1987). Defendant filed a timely notice of appeal to

[246 Kan. 254]

      Sedgwick County District Court. The parties stipulated to the following facts, which were the basis for the district court's decision:
"1. Bobbie L. Wallace, the Defendant, operates a business within the corporate limits of the City of Wichita, specifically located at 1021 Maple, Wichita, Sedgwick County, Kansas.
"2. A portion of the building described in No. 1 above is licensed by the Defendant as a `drinking establishment' pursuant to the laws of the State of Kansas and Title 4 of the Code of the City of Wichita, Kansas.
"3. Another portion of the building described in No. 1 above occupies a `private club,' or `pop shop,' where live nude and/or topless dancing is offered for amusement.
"4. Membership in the `private club' is open to any person or persons 21 years of age or older who do not identify themselves as a police officer and who pay a $1.00 lifetime membership fee.
"5. Customers of the drinking establishment are solicited to become members of the `private club' by the Defendant and persons employed by the Defendant.
"6. The Defendant obtained a license from the City to operate an `erotic dance studio,' pursuant to Chapter 3.06 of the Code of the City of Wichita, Kansas, at the location identified in No. 1 above, on or about December 31, 1987.
"7. The Defendant employs the individual entertainers in her drinking establishment as dancers in the `pop shop.'
"8. There is no limit to the number of members who can join the `private club.'
"9. During the solicitation for membership, customers are told that the `pop shop' is a `part of the business.'
"10. Membership rules, if any, are established by the Defendant, Bobbie L. Wallace.
"11. Membership is granted by the issuance of a paid receipt with the Defendant's name stamped on its face.
"12. Proof of age, the payment of the $1.00 fee, and a negative response to questions concerning whether the applicant is a police officer result in the immediate issuance of a membership receipt."
  The district court found that defendant had standing and that the business was open to the public. In addition, the court found that the City had the authority to enact an ordinance for the purposes set out therein, to set forth procedures to obtain a license, and to regulate the times such establishments could be open, requirements concerning tips, and placement of a stage. The court, however, found the ordinance unconstitutionally void for vagueness, stating:

[246 Kan. 255]


"5. On its face, the language referring to the City Council, `if they approve the same, shall issue a license to the applicant' appears to give unrestricted discretion to the City Council as to which individual shall receive a license. If that construction is given this ordinance is void on its face because no such power could exist in the City Council. If the ordinance were not otherwise infirm, the Court having an obligation to construe legislation in a constitutional fashion, if possible, could construe this language to mean that any applicant who met the qualification would receive a license. A decision on that issue is not reached because the ordinance does not inform the person subject to its penalties what conduct will be penalized. When persons of common understanding must guess what . . . conduct is prohibited the enactment is void for vagueness. When one refers to the conduct which is being licensed that is where the infirmity appears."
  The ordinance sought to regulate erotic dance studios by requiring such establishments to be licensed as follows:
"License Required. It is unlawful for any person, whether as principal, officer, agent, servant or employee:
"(a) To conduct business in or operate an erotic dance studio without having first obtained a license;
"(b) To fail to comply with all regulations provided in this chapter." Wichita, Kan., Code § 3.06.020.
The license is to be issued for a particular premises and is valid for a period of one year. Wichita, Kan., Code § 3.06.020. To obtain a license, a person must apply, providing name and residence, place of business, name of the owner of the premises, and names and addresses of all persons having a financial interest in the place. Wichita, Kan., Code § 3.06.040. The application must be accompanied by a license fee as required by § 3.06.030 of the Code. The chief of police is required to investigate the applicant. Wichita, Kan., Code § 3.06.040. A photograph of the applicant must accompany the application. Wichita, Kan., Code § 3.06.050. Employees of such establishments are also licensed and must provide similar information. Wichita, Kan., Code § 3.06.160.

  The city council reviews the application and makes a decision about whether to issue or deny the license as follows:

  "If the application for a license is in proper form and accompanied by the license fee as provided in Section 3.06.030, the City Council members shall examine the application and, after examination of the application, the City Council members, if they approve the same, shall issue a license to the applicant. . . ." Wichita, Kan., Code § 3.06.060.

[246 Kan. 256]


  The ordinance then contains four limitations on the issuance of a license, which include provisions concerning prior convictions involving moral turpitude, and the requirements of copartnership, a corporation, or a manager/agent. Wichita, Kan., Code § 3.06.060(a) through (d). None of these four exceptions is discussed in the record and therefore do not appear to be applicable to the case at hand.

  The first section of the ordinance defines words or terms used therein. Three of the four set out in the ordinance are relevant to a decision of the issues raised in this appeal, and provided as follows:
"`EROTIC DANCE STUDIO' means any place of business, or `pop shop' open to the public, whether or not a cover charge is assessed, which emphasizes and presents live nude entertainment. Live entertainment includes but is not limited to, nude dancing and topless dancing.
"`ENTERTAINMENT' means any live exhibition, performance, display or dance of any type, removal of articles of clothing or appearing unclothed, pantomime, modeling or other personal service offered for amusement.
"`NUDE' means any state of undress in which the human genitals, pubic region, buttock or female breast at a point below the top of the areola, is less than completely and opaquely covered."
  There were three hearings conducted in this case. At the first hearing, the court noted that defendant had standing to object to the enforcement of the ordinance against her. The court also noted that the ordinance appears to give the City unrestricted discretion as to whether to grant the license, which would make the ordinance invalid. Recognizing the requirement to construe the ordinance constitutionally, if possible, the court construed the ordinance to require the City to issue a license to anyone who qualifies under the licensing provisions.

  The court noted that the City has a right to zone and determine where businesses will be conducted, the authority to regulate hours of closing in certain businesses for the good of the peace and quiet of the neighborhood, and the authority to regulate the sale and consumption of alcoholic liquor. The court noted, however, that the regulation of entertainment conflicts with First Amendment rights of freedom of expression, which have been held to include nudity. The court then asked the attorneys to brief the question of whether the ordinance was void for vagueness

[246 Kan. 257]

      because of the possibility that people would have to guess about whether their conduct would come under the provisions of the ordinance.

  At the second hearing, the court noted that the failure of the ordinance to require the element of scienter contributed to the court's concern that the ordinance was void for vagueness.

  At the third and final hearing, the court expressed its concern that the definitions contained in the ordinance would apply to classical plays as well as performers in a musical play such as "Hair." When the city attorney responded that if "Hair" was to be performed, the issue would be whether the theatrical presentation emphasized and presented live nude entertainment. The court responded that this play surely did involve nudity: "The whole cast is completely nude." The court concluded that the ordinance did not contain language that informed licensed operators and licensed entertainers about what conduct they might or might not do, and found the ordinance void because it lacked a standard enabling the licensees to know whether their conduct was covered. The court dismissed the charges against defendant and the City appealed.

  The issue on appeal is whether the ordinance enacted by the City of Wichita to regulate erotic dance studios is void because it is unconstitutionally vague. The City first argues that the trial court did not apply the appropriate standard in reviewing the constitutionality of this ordinance and directs this court's attention to Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 697 P.2d 1310 (1985). That case involved a declaratory judgment action to challenge the constitutionality of a Shawnee County resolution regulating "adult entertainment studios." This court stated the principles and guidelines involved in determining the constitutionality of enactments, whether by statute, city ordinance, or county resolution, as follows:

  "The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the ...

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