PUBLISH

UNITED STATES COURT OF APPEALS

Filed 10/29/96

TENTH CIRCUIT

DODGER’S BAR & GRILL, INC., a

corporation, d/b/a Bonita Flats Saloon,

RHONDI DAVIS, SHEILA KING,

ELIZABETH LUCAS, RHONDA

WHEELER, SERENA PARKER,

MELISSA JONES, MELISSA FINNEY,

CHERI DAVIDSON, TAMMY

SCHEUMEISTER, ANITA BOWER,

MARLEY WESTON, SUZY KELLY,

RACHAL WORKMAN, BROOKE UTZ,

DEBRA MANESS, GENA LILLY,

LAURIE BOYER, SHELLY STEWART,

VICKI SMITH, JESSICA ALLEN,

DEANNA HURST, BRENDA SHOOK,

CYNDI SCHMIDT, SUSAN PRINCE,

KRISTI MARTIN, ANGELA THOMAS,

DESIREE EDWARDS, ORISSA

HANSON, JACKIE ARNETT, ROBIN

PACKARD, NICOLE HESTAND, JANA

SULLINS, NANCY SESLER, HESTER

RAMEY, LEWANA DUNCAN, SANDY

WATSON, CHRISSIE MALLOY, TINA

L. SMITH,

Plaintiffs-Appellants,

v.

JOHNSON COUNTY BOARD OF

COUNTY COMMISSIONERS,

JOHNNA (NMI) LINGLE, Chair,

Johnson County Commissioner, SUE E.

WELTNER, Johnson County

Commissioner, BRUCE R. CRAIG,

Johnson County Commissioner, 

No. 95-3187
*Honorable Albert J. Engel, Senior Circuit Judge, United States Court of Appeals

for the Sixth Circuit, sitting by designation.

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MURRAY L. NOLTE, Johnson County

Commissioner, DAN (NMI) HOSFIELD,

Johnson County Commissioner, FRED

ALLENBRAND, Johnson County Sheriff,

PAUL (NMI) MORRISON, Johnson

County District Attorney,

 Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 92-2289-EEO)

Brock R. Snyder, Topeka, Kansas, for Plaintiffs-Appellants.

LeeAnne Hayes Gillaspie, Johnson County Legal Department, Olathe, Kansas, for

Defendants-Appellees Board of County Commissioners, and Lawrence L. Ferree, III, and

Ronald C. Rundberg of Ferree, Bunn & Byrum, Overland Park, Kansas, for DefendantAppellee Fred Allenbrand, Johnson County Sheriff.

Before Anderson, McWilliams and Engel*

, Circuit Judges.

McWILLIAMS, Senior Circuit Judge.

This case originally was set for oral argument before this panel on May 13, 1996. 

On May 1, 1996, the parties filed with this court a stipulation for submission of the case

on the briefs. On May 7, 1996, this panel, after examining the briefs and the appellate
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record, determined that oral argument would not materially assist the decisional process.

Accordingly, we construed the stipulation as a motion to strike the case from the oral

argument calendar and to submit the case on the briefs. We then granted such motion and

ordered the case to be submitted on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R.

34.1.2.

 Dodger’s Bar & Grill, Inc., d/b/a Bonita Flats Saloon (“Bonita Flats”), and thirtyeight of its “entertainers,” brought a civil rights action under 42 U.S.C. § 1983 in the

United States District Court for the District of Kansas against the Board of County

Commissioners of Johnson County, Kansas, and certain Johnson County officials. The

plaintiffs sought a declaration by the district court that certain resolutions of the Board of

County Commissioners enacting regulations for business establishments which serve

alcohol or cereal malt beverages for consumption on the premises were unconstitutional. 

The plaintiffs also sought an injunction prohibiting the county officials from enforcing

the resolutions here in question. Specifically, in their complaint the plaintiffs challenged

the constitutionality of Resolutions 67-92 and 68-92. The defendants filed an answer to

the complaint in which they alleged that the resolutions under attack were constitutional.

The case was tried to the district court, which upheld the constitutionality of

Resolution 67-92, but did not rule on the plaintiffs’ challenge to Resolution 68-92. 

Dodger’s Bar & Grill, Inc., v. Johnson County Bd. of County Comm’rs, 815 F. Supp. 399

(D. Kan. 1993).
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On appeal, we upheld the district court’s holding that Resolution 67-92 was

constitutional and affirmed the district court’s entry of judgment for the defendants on

plaintiffs’ claims for injunctive relief and declaratory judgment. However, we remanded

the case to the district court with directions that it rule on the constitutionality of

Resolution 68-92. Dodger’s Bar & Grill, Inc., v. Johnson County Bd. of County

Comm’rs, 32 F.3d 1436 (10th Cir. 1994).

On remand, after the parties filed supplemental briefs, the district court, taking into

consideration the evidence adduced at the first trial of this matter, upheld the

constitutionality of Resolution 68-92 and entered judgment for the defendants on

plaintiffs’ claims for injunctive relief and declaratory judgment. Dodger’s Bar & Grill,

Inc., v. Johnson County Bd. of County Comm’rs, 889 F. Supp. 1431 (D. Kan. 1995). 

Plaintiffs appeal that judgment. We affirm.

We are in general accord with the district court’s holding that Resolution 68-92 is

constitutional and we affirm its judgment denying the plaintiffs both declaratory and

injunctive relief. Such being the case, we do not propose a prolix opinion in the present

appeal. There are already three published opinions concerning Bonita Flats’ dispute with

Johnson County, two by the district court and one by this court. Therefore, the

background facts have already been fully set forth and will not be unnecessarily repeated

here.

As indicated, in 1992, the Board of County Commissioners of Johnson County
1

In so doing, we relied on New York State Liquor Auth. v. Bellanca, 452 U.S. 714 (1981)

and California v. LaRue, 409 U.S. 109 (1972).

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decided to regulate the “entertainment” to be permitted or allowed on premises where

alcoholic beverages or cereal malt beverages were served. Resolution 68-92 has an

“applicability” provision, which read as follows:

This Chapter shall apply from and after its effective date to all

persons and all property located within the unincorporated area

of Johnson County, Kansas and shall be applicable to any business 

establishment, whether licensed or not, now located or hereafter 

locating within or upon any property located in the unincorporated

area of Johnson County, Kansas, which serves alcoholic beverages

 or cereal malt beverages for consumption on the premises, and to 

any operator of any such establishment.

In Dodger, 32 F.3d 1436 (10th Cir. 1994), we upheld the constitutionality of

Resolution 67-92 on the basis of the Twenty-First Amendment, rejecting the plaintiffs’

suggestion that the controversy involved the First Amendment.1

 The particular provisions

of Resolution 67-92 there under attack were the following:

ARTICLE IV. PROHIBITED CONDUCT

SECTION 1. Nudity and Sexual Conduct Prohibited.

A. No person shall, on licensed premises,

perform acts of or acts which constitute or

simulate:

(1) Sexual intercourse, masturbation,

sodomy, bestiality, oral copulation,

flagellation or any sexual acts which are

prohibited by law; or

(2) The touching, caressing or fondling

of the breast, buttocks, anus, or genitals;

or
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(3) The displaying of post-pubertal

human genitals, buttocks, or pubic area,

or the female breast below the top of the

nipple.

B. No person shall, on licensed premises, use

artificial devices or inanimate objects to

perform, simulate or depict any of the

prohibited conduct or activities described in

paragraph A of this Section.

C. It shall be unlawful for any person to show,

display or exhibit, on licensed premises, any

film, video, still picture, electronic reproduction

or any other visual reproduction or image of any

act or conduct described in paragraphs A and B

of this Section.

SECTION 2. Allowing Persons to Engage in Prohibited Acts.

A. No operator shall allow or permit to remain

in or about the licensed premises any person

who performs acts of or acts which constitute or

simulate:

(1) Sexual intercourse, masturbation,

sodomy, bestiality, oral copulation,

flagellation or any sexual acts which are

prohibited by law; or

(2) The touching, caressing or fondling

of the breast, buttocks, anus or genitals;

or

(3) The displaying of post-pubertal

human genitals, buttocks, or pubic area,

or the female breast below the top of the

nipple.

As indicated, in Dodger, 32 F.3d 1436 (10th Cir. 1994), we upheld the

constitutionality of Resolution 67-92 and remanded the case to the district court with
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directions that it rule on the constitutionality of Resolution 68-92. That resolution, in

pertinent part, provides as follows:

SECTION 5. SEPARATE PREMISES. No operator shall

allow or permit any door, window, or other entrance or

opening leading directly to or through an enclosed area from

an establishment serving alcoholic beverages for consumption

on the premises to another room, building, premises or place

wherein or whereon acts prohibited by Chapter 1 of this Code

can or do occur; nor shall any person allow or permit such

acts prohibited by Chapter 1 to occur in any room, building,

premises or place within 1,000 feet of a licensed premises or

other business premises covered by this Chapter; nor shall an

operator allow or permit such acts prohibited by Chapter 1 to

occur in any room, building, premises or place operated in

conjunction with a licensed or other business premises

covered by this Chapter (emphasis added).

As we understand it, the plaintiffs do not challenge the first or third clauses in the

paragraph of the above set forth statute, but confine their challenge solely to the second

clause thereof, which has been underlined.

We agree with the district court that “the focal point of Resolution 68-92, [and we

note, parenthetically, of Resolution 67-92] is the premises on which the alcohol is

served.” Dodger, 889 F. Supp. at 1435. The first clause in Section 5 of Resolution 68-92

provides that an operator shall not allow or permit any door, window or other entrance

leading to an enclosed area from an establishment serving alcohol beverages to another

room or building wherein acts prohibited by Chapter One of the Adult Entertainment

Code occur. Plaintiffs do not challenge that particular provision, nor do they challenge

the third clause in Section 5. They only take aim at the second clause in Section 5 which
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provides as follows: 

nor shall any person allow or permit such acts prohibited by

Chapter

1 to occur in any room, building, premises or place within 1,000 feet

of a licensed premises or other business premises covered by this 

Chapter;

The obvious purpose of the foregoing provision is to prohibit bar owners,

entertainers or patrons from setting up a nearby trailer, recreational vehicle or other

separate structure and to therein engage in conduct which is prohibited inside the licensed

premises. We agree with the district court that there is a “reasonable relationship”

between the area immediately adjacent to the licensed premises and the licensed premises

and that Resolution 68-92 is within the ambit of the Twenty-First Amendment and the

police power of the State of Kansas.

The plaintiffs’ remaining arguments that Resolution 68-92 is overbroad, vague,

and violative of equal protection are unavailing under the general rationale of our prior

opinion. Dodger’s Bar & Grill v. Johnson County Bd. of County Comm’rs, 32 F.3d 1436

(10th Cir. 1994). We agree with the district court that the “any person” language

appearing in the second clause of Resolution 68-92 “can be read as limited to ‘operators,’

‘entertainers,’ or ‘patrons’ of the regulated establishment.” Dodger, 889 F. Supp. at 1437

(footnotes omitted). We further agree with the district court that, after considering both

resolutions, the Johnson County Adult Entertainment Code “is clearly directed at

regulating the conduct of operators, entertainers, and patrons of establishments which sell
2

In its Memorandum and Order the district court did declare the “other business

premises” language in the second clause of Section 5 to be “unconstitutionally vague.” 

However, under the severability clause in Resolution 68-92, providing that if particular

language in the resolution is declared unconstitutional such would not affect the balance

of the resolution, the district court severed those three words. That holding of the district

court has not been appealed, or cross-appealed.

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liquor for on-premises consumption.”2 Dodger, 889 F. Supp. at 1437.

Finally, in connection with plaintiffs’ suggestion that the 1,000 foot restriction is

“too much,” it should be remembered that we are not here concerned with a densely

populated urban area. In their brief, plaintiffs described the location of Bonita Flats as

follows:

Bonita Flats is located in a rural area next to a grain mill, railroad

tracks and three homes across from the railroad tracks. The

remaining area is surrounded by pasture with the nearest neighbor 

approximately a mile away. 

Aplt’s Br. at 4.

Judgment affirmed.