Court allows adult oriented business to maintain civil rights claims in BZA appeal

STEPHANIE CAPPS d/b/a STEPHANIE'S CABARET and SMITH INVESTMENT GROUP, L.P. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn. Ct. App. January 2, 2009).

This appeal arises out of the issuance and subsequent revocation of a permit authorizing the use of property for adult entertainment. The appellant filed a complaint seeking declaratory and injunctive relief regarding her right to operate the business. In addition, she claimed that her due process, equal protection, and First Amendment rights had been violated. The trial court dismissed the case, finding that the appellant's arguments regarding the requested declaratory and injunctive relief had been rejected in a related case, and declaring that the remaining constitutional claims were moot. We affirm in part, reverse in part, and remand for further proceedings.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/cappss2_010209.pdf

“Previously, on October 26, 2004, SIG and Stephanie Capps d/b/a Stephanie’s Cabaret had

filed a separate, verified complaint in the Chancery Court of Davidson County, requesting

declaratory and injunctive relief and alleging that Metro violated their procedural and substantive due process rights. Specifically, the plaintiffs sought a declaration that they had acquired vested rights in their permit for adult entertainment, or that Metro was equitably estopped from revoking their permit. They also sought temporary and permanent injunctions permitting their operation of the adult entertainment establishment and prohibiting Metro from interfering with such use. The plaintiffs subsequently filed an amended complaint containing the following allegations:

37. Plaintiffs allege that the permitted use of Stephanie’s Cabaret is for live dance

and entertainment which is protected by the free speech clauses of the

Tennessee and United States Constitutions…

38. Plaintiffs allege that at the time Metro declared Plaintiffs’ adult entertainment

use of its property at 660 Lafayette Street illegal because it was within 500

feet of the Nashville Rescue Mission, at least one or possibly two similarly

situated adult entertainment establishments possessed the same use and

occupancy certificates as Plaintiffs and were permitted [to] operate by Metro.

This discrimination denied Plaintiffs equal protection of the law.

41. Plaintiffs’ constitutional rights are violated because the metro distance

ordinance favors a religious establishment in violation of the First

Amendment.” Id.

"On appeal, Ms. Capps asks this Court to grant summary judgment in her favor on her First Amendment and Equal Protection claims and “remand the case for the Plaintiffs to seek attorney fees and costs as prevailing party pursuant to 42 U.S.C. § 1988.” We decline the invitation to grant summary judgment to Ms. Capps because of the lack of evidence in the record regarding these two issues. We also wish to emphasize that we express no opinion regarding the merits of Ms. Capps’ claims. We simply find that they are not moot." Id.