United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 02-2931

No. 02-3835

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Jake's, Ltd., Inc.; Richard J. Jacobson, *

*

Plaintiffs - Appellants, *

* Appeals from the United States

v. * District Court for the

* District of Minnesota.

City of Coates, *

*

Defendant - Appellee. *

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Submitted: October 22, 2003

Filed: January 30, 2004

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Before LOKEN, Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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LOKEN, Chief Judge.

After the City of Coates, Minnesota, enacted zoning ordinances barring Jake’s,

Ltd., from continuing to offer live nude dancing at its existing location, Jake’s and its

owner, Richard J. Jacobson (collectively, “Jake’s”), commenced this action, alleging

that the ordinances violated their First Amendment rights. The City removed the

action and counterclaimed for declaratory and injunctive relief. The district court

dismissed Jake’s complaint with prejudice. Jake’s Ltd. v. City of Coates, 176 F.

Supp. 2d 899, 901 (D. Minn. 2001). Three weeks later, at the City’s request, the court
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amended its final order to enjoin Jake’s “from operating a sexually-oriented business

at their current location” in violation of the “relevant ordinances of the City of

Coates.” Jake’s appealed the dismissal of its First Amendment claims. We affirmed

in all relevant respects. Jake’s Ltd. v. City of Coates, 284 F.3d 884 (8th Cir.), cert.

denied, 537 U.S. 948 (2002). Jake’s did not appeal the scope of the district court’s

injunction, even though federal courts have long disfavored “[b]lanket injunctions

against general violation of a statute.” Beatty v. United States, 191 F.2d 317, 321

(8th Cir. 1951); see Swift & Co. v. United States, 196 U.S. 375, 396 (1905).

The district court stayed its injunction pending Jake’s prior appeal. When the

stay expired on May 22, 2002, Jake’s continued to offer live nude dancing. But

Jake’s eliminated the prior five dollar cover charge, instead charging a five dollar fee

to park outside the establishment, regardless of whether a customer entered. In

addition, Jake’s began selling soft drinks outside instead of inside the building. The

City filed a contempt motion. After a hearing, the district court held Jake’s in

contempt and ordered Jake’s “to close the sexually-oriented business at 15981

Clayton Avenue in Coates” and to pay a civil contempt sanction of one thousand

dollars per day for any future continued operation. In addition, finding that Jake’s did

not oppose the contempt motion “in good faith,” the court ordered Jake’s to pay the

City costs and attorney’s fees of $6,490.57. Jake’s appeals these rulings in Case No.

02-2931.

A few days after the contempt order issued, Jake’s reopened at the same

location. The business no longer featured live nude dancing. Instead, bikini-clad

dancers offered patrons “lap” or “couch” dances for twenty dollars and more private

“VIP couch dances” for $140. After undercover law enforcement officers determined

that these dances involved dancers rubbing their clothed breasts and groins on

patrons’ clothed genitals, the City again moved to hold Jake’s in contempt for

operating a sexually-oriented business on the premises. Finding clear and convincing

evidence of willful and intentional violations of the court’s prior orders, the district
1

Neither party challenges the district court’s jurisdiction. The court had

removal jurisdiction because Jake’s complaint stated a colorable claim under federal

law. It had jurisdiction over the City’s state law counterclaim for injunctive relief

because that claim was “part of the same case or controversy.” 28 U.S.C. § 1367(a);

see Moore v. N.Y. Cotton Exch., 270 U.S. 593, 607-10 (1926); Tullos v. Parks, 915

F.2d 1192, 1194-96 (8th Cir. 1990). 

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court again held Jake’s in civil contempt. Applying the $1,000-per-day penalty

established in the first contempt order, the court ordered Jake’s to pay $68,000 into

court for the sixty-eight days it had operated in continued violation of the injunction.

In addition, the court increased the prospective fine for future violations to two

thousand dollars per day, granted judgment to the City for $601.57 in additional costs

and an unpaid deficiency relating to the first contempt order, and ordered Jake’s to

“close the sexually-oriented business” at its current location and “reopen only when

they have complied fully with this Order.” Jake’s appeals this second contempt order

in Case No. 02-3835. We consolidated the appeals and now affirm in part and reverse

in part.1

The First Contempt Order.

In Case No. 02-2931, Jake’s challenges the district court’s first contempt ruling

and the award of attorney’s fees and costs as a civil contempt sanction. Jake’s first

argues that, after eliminating the cover charge and the sale of soft drinks where the

live nude dancers performed, it no longer engaged in operating a “sexually-oriented

business” as defined in the City’s zoning ordinances and therefore did not violate the

court’s injunction. The ordinances define different types of sexually-oriented

businesses. Relevant here is the “adult entertainment facility” category, defined as:

A building or space wherein an admission is charged for entrance or

food or non-alcoholic beverages are intended for consumption and

wherein may be observed live presentation or entertainment

distinguished or characterized by an emphasis on matters depicting,
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describing or relating to specified sexual activities or specified

anatomical areas as defined herein.

Jake’s argues that its five dollar parking fee was not “an admission . . . charged for

entrance” because the parking fee was charged for any use of the parking lot and

because patrons could enter and watch the live nude dancing without paying the five

dollar fee if they arrived on foot, by taxi, or parked elsewhere. Jake’s argues that

selling soft drinks for consumption outside the building was not the sale “wherein

[live nude dancing] may be observed.”

The district court rejected these contentions. It concluded that Jake’s had

continued to operate a sexually-oriented business within the meaning of the ordinance

because “[t]he ‘parking fee’ is the functional equivalent of the admission charge

Plaintiffs seek to avoid,” and alternatively because “the mere relocation of nonalcoholic beverages from inside the bar to just outside the door does not change [the

fact] that such beverages continue to be sold and are intended for consumption on the

premises where nude dancing occurs.” Noting that Jake’s conceded it was operating

a sexually-oriented business earlier in the litigation, the court held Jake’s in contempt,

refusing to allow Jake’s “to dodge the force of the Court’s orders by engaging in

games of labeling and semantics.”

We review the district court’s decision to enter a civil contempt order for abuse

of discretion, reviewing its factual findings for clear error. Wycoff v. Hedgepeth, 34

F.3d 614, 616 (8th Cir. 1994); accord Mower County Human Servs. v. Swancutt, 551

N.W.2d 219, 222 (Minn. 1996). The party seeking a contempt order bears the burden

of proving facts warranting such relief by clear and convincing evidence. Because

the contempt power is a “most potent weapon,” we review the imposition of contempt

sanctions “more searchingly” than their denial. Indep. Fed’n of Flight Attendants v.

Cooper, 134 F.3d 917, 920 (8th Cir. 1998). 
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On appeal, Jake’s argues that the district court failed to construe the zoning

ordinances strictly in favor of the property owner, as Minnesota law requires. But the

primary issue is whether Jake’s violated the court’s decree, not whether they violated

the ordinances. In the proceedings leading up to that decree, Jake’s conceded that

live nude dancing was a “sexually-oriented business” within the meaning of zoning

ordinances that prohibited conducting a sexually-oriented business at the location in

question. Thus, when the district court rejected Jake’s First Amendment attacks on

the ordinances and granted the City injunctive relief, it obviously intended to enjoin

Jake’s from continuing to offer live nude dancing on the premises. Jake’s post-decree

conduct violated that core prohibition. The fact that the decree broadly and in our

view improvidently incorporated entire ordinances by reference raises difficult issues

that we must address in connection with the second contempt decree. But the breadth

and potential ambiguity of the injunction do not undermine the district court’s

conclusion that the City demonstrated, by clear and convincing evidence, that Jake’s

acted in contempt of the injunction by continuing to offer live nude dancing, conduct

Jake’s had previously conceded would violate the ordinances.

Jake’s further argues that the district court erred in awarding the City its

attorney’s fees and costs because Jake’s opposition to the contempt motion had a

basis in the ordinance and thus was made in good faith. In response, the City argues

that even if Jake’s had a good faith basis for opposing the contempt motion, we

should still affirm the fee award because a lack of good faith need not be shown. In

this circuit, “[a]lthough willfulness is not necessarily a prerequisite to an award of

fees, it may properly be considered in deciding whether to tax costs and attorney’s

fees in an action to enforce compliance with an injunction.” Hartman v. Lyng, 884

F.2d 1103, 1107 (8th Cir. 1989) (citation omitted); see McComb v. Jacksonville

Paper Co., 336 U.S. 187, 191 (1949); but see King v. Allied Vision, Ltd., 65 F.3d

1051, 1063 (2d Cir. 1995). 
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When an injunction has issued at the request of a government agency, an award

of reasonable attorney’s fees and expenses incurred by the agency in seeking to

enforce the decree is a form of compensatory relief that is well within a district

court’s remedial discretion in civil contempt proceedings. See United States v. Rue,

819 F.2d 1488, 1495 (8th Cir. 1987). Here, Jake’s argued that it did not violate the

decree because it made minimal and tangential changes to the way it conducted an

admittedly sexually-oriented business -- live nude dancing. The district court did not

abuse its discretion in rejecting that argument as nothing more than an artful dodge

and in compensating the City for its legal expenses in bringing the contempt motion.

Accord Food Lion, Inc. v. United Food & Commercial Workers Int’l Union, 103 F.3d

1007, 1017 n.14 (D.C. Cir. 1997). 

The Second Contempt Order.

The second contempt order at issue in Case No. 02-3835 stands on different

footing because the breadth of the district court’s initial injunctive decree is essential

to the court’s finding that the decree was violated. As noted above, the decree

enjoined Jake’s “from operating a sexually-oriented business at their current location”

if that would violate “relevant ordinances of the City of Coates.” In other words, the

decree commanded Jake’s to obey local laws. As amended, the City of Coates Zoning

Ordinance prohibits the conduct of “sexually-oriented businesses” at Jake’s current

location. The ordinance defines “sexually-oriented business” to include: 

an adult book store, adult body painting studio, adult companionship

establishment, adult motion picture theater, adult entertainment facility,

adult modeling studio, adult mini motion picture theater, or adult sauna

as defined herein.

Thus, the injunction banned all of these activities and made Jake’s noncompliance

punishable by contempt. That is not a problem in reviewing the first contempt order:
2

The ordinances define “specified sexual activities” to include “fondling or

other erotic touching of human genitals, pubic region or pubic hair, buttocks, or

female breast or breasts.” 

3

Jake’s does argue that the City failed to prove that its lap dancers engaged in

“specified sexual activities” within the meaning of the zoning ordinances

incorporated by reference in the injunction. Given our resolution of the other issues

on appeal, we decline to consider this issue. 

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Jake’s conceded that the sexually-oriented business it conducted when the injunction

was issued fell within one portion of the definition of an “adult entertainment facility”

because live nude dancing constituted “live presentation or entertainment

distinguished or characterized by an emphasis on . . . specified anatomical areas as

defined herein.” (Emphasis added.) 

The second contempt order found that a different form of live entertainment

violated the injunction -- clothed lap dances which, to violate the ordinance, must be

found to be “live presentation or entertainment distinguished or characterized by an

emphasis on matters depicting, describing, or relating to specified sexual activities.”

(Emphasis added.)2

 The district court found that the lap dances offered at Jake’s fit

this definition. Therefore, the court concluded, Jake’s continued to be an “adult

entertainment facility,” which meant that Jake’s continued to operate a sexuallyoriented business in violation of the court’s obey-the-law injunction. As the principal

remedy for this civil contempt, the court imposed a fine of $68,000 for the sixty-eight

days Jake’s operated in this fashion after the first contempt order issued. 

On appeal, Jake’s does not argue that the underlying decree was too broad or

vague to be enforced in this manner.3

 Although we believe the initial injunction

should not have broadly incorporated the entire array of ordinances, it is far too late

in the proceedings to find plain error on this ground. See Jacksonville Paper, 336

U.S. at 192. Instead, Jake’s argues that the $68,000 fine must be reversed because it

is a criminal contempt sanction imposed without the procedural protections of a
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criminal contempt proceeding, including, when applicable, a jury trial. Applying the

Supreme Court’s decision in International Union, United Mine Workers v. Bagwell,

512 U.S. 821 (1994), we agree.

Traditionally, contempt sanctions are civil if they are coercive and remedial,

and criminal if they are punitive. In Bagwell, the Virginia state courts enjoined a

union from engaging in a wide range of unlawful strike-related activities. In an initial

civil contempt hearing, the trial court found 72 violations, fined the union $642,000,

and declared that it would fine the union $100,000 for any future violent breach of

the injunction and $20,000 for any future nonviolent breach. In seven subsequent

civil contempt hearings, the court found over 400 additional violations and imposed

$12 million in compensatory fines payable to the affected employers plus $52 million

in fines payable to the State. The union appealed, arguing the $52 million were

criminal fines that may only be imposed after a jury trial. This issue required the

Court to consider in greater detail the distinction between coercive civil fines and

punitive criminal fines. Although all nine Justices agreed in a majority and two

concurring opinions that the fines in question were criminal in nature, they admitted

that the distinction between civil and criminal contempt fines is “somewhat elusive.”

512 U.S. at 830. 

In framing this issue, the Court first noted that broad civil contempt powers are

necessary to the judicial function but are subject to abuse because “civil contempt

proceedings leave the offended judge solely responsible for identifying, prosecuting,

adjudicating, and sanctioning the contumacious conduct.” 512 U.S. at 831. To

balance these competing concerns, greater procedural protections are granted those

accused of indirect contempts, that is, contempts committed outside the presence of

the court. But not all indirect contempts must be classified as criminal. In drawing

the distinction between civil and criminal fines in Bagwell, the Court first focused on

the nature of the inquiry required to determine whether the alleged contumacious

conduct violated the court’s prior decree:
4

Focusing on this aspect of the inquiry, we concluded in United States v. Santee

Sioux Tribe, 254 F.3d 728, 736 (8th Cir. 2001), that an injunction ordering the Tribe

to close a tribal casino that was unlawfully operating “Class III” gaming devices was

“not complex” for purposes of applying Bagwell. However, no specific contempt

remedy was at issue in that case.

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[I]ndirect contempts involving discrete, readily ascertainable acts, such

as turning over a key or payment of a judgment, properly may be

adjudicated through civil proceedings since the need for extensive,

impartial factfinding is less pressing.

For a discrete category of indirect contempts, however, civil

procedural protections may be insufficient. Contempts involving out-ofcourt disobedience to complex injunctions often require elaborate and

reliable factfinding. . . . Under these circumstances, criminal procedural

protections such as the rights to counsel and proof beyond a reasonable

doubt are both necessary and appropriate to protect the due process

rights of parties and prevent the arbitrary exercise of judicial power. 

512 U.S. at 833-34.4

 The Court then turned to the remedial side of the inquiry, the

nature of the fines at issue. The Court analyzed the magnitude of the fines, whether

they were imposed to compensate an injured party, and if not, whether they were

“determinate and unconditional” and therefore punitive in nature, or were capable of

being avoided or purged by coming into compliance with the court’s injunctive

decree, which is the hallmark of a coercive civil contempt remedy. In discussing this

aspect of the inquiry, the Court stated: “[T]he fact that the trial court announced the

fines before the contumacy, rather than after the fact, does not in itself justify

respondents’ conclusion that the fines are civil or meaningfully distinguish these

penalties from the ordinary criminal law.” 512 U.S. at 836.

In this case, we conclude that both facets of the Bagwell analysis make the

$68,000 fine criminal in nature. First, the injunction was complex, in that it enjoined

Jake’s from conducting any type of sexually-oriented business prohibited by the
5

Our conclusion would likely be different if Jake’s had continued to offer live

nude dancing after the district court entered the first contempt order. In that case, the

second contempt proceeding would involve conduct that was previously adjudged to

be contumacious and was continued in defiance of a coercive prospective fine. 

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ordinances, not just the live nude dancing that Jake’s had admitted was a sexuallyoriented business in raising its First Amendment challenge. Given the breadth of the

injunction, the City could have sought contempt remedies, for example, if Jake’s had

completely changed its operations to an “adult book store” or “adult motion picture

theater” or “adult sauna.” The change it in fact made -- from live nude dancing to

clothed lap dancing -- was less dramatic but raised no less troublesome compliance

issues. Determining whether this live entertainment by clothed dancers is

“characterized by an emphasis on matters . . . relating to specified sexual activities”

is a fact-intensive and, perhaps more importantly, controversial inquiry that may even

raise additional First Amendment issues. 

A violation of the City’s Zoning Ordinance is punishable as a misdemeanor.

If the City were to prosecute this new type of alleged violation in state court, Jake’s

would likely have a right to trial by jury. See MINN. STAT. § 609.03(3); MINN. R.

CRIM. P. 26.01, subd. 1(1)(a); State v. Bjornson, 378 N.W.2d 4 (Minn. App. 1985).

In these circumstances, we conclude the same procedural protections are necessary

before a large unconditional fine is imposed in contempt proceedings for completed,

as opposed to future, conduct.5

Second, looking at the nature of the remedy itself, Bagwell described the type

of fine that is closely analogous to coercive imprisonment, which is a classic form of

civil contempt remedy: “a [prospective] per diem fine imposed for each day a

contemnor fails to comply with an affirmative court order.” 512 U.S. at 829. Here,

the $68,000 fine imposed by the second contempt order was far different from this

type of coercive remedy. The fine was substantial, it was payable into court, rather
6

Although the second contempt order included a finding that the City was

entitled to “compensatory damages for reasonable attorney fees and costs,” the City

has made no attempt to quantify such expenses. 

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than to compensate the City,6

 and it was “determinate and unconditional,” that is, not

capable of being purged. The district court did not explicitly characterize the $68,000

fine as either civil or criminal; in any event, that would not be controlling. See Hicks

v. Feiock, 485 U.S. 624, 631 (1988), followed in Bagwell, 512 U.S. at 838. As in

Bagwell, we think it apparent that this substantial unconditional fine was essentially

punitive in nature.

In Bagwell, the Supreme Court set out to reverse the tendency of lower federal

courts and state courts to use the Court’s prior decisions “to authorize a relatively

unlimited judicial power to impose noncompensatory civil contempt fines.” 512 U.S.

at 830. At the end of its discourse, the Court expressly preserved the judicial power

to “impose noncompensatory, petty fines . . . without conducting a jury trial” for

contempts of even complex injunctions. And it did not disturb a court’s power to

levy serious fines for contempts of complex injunctions, but it held that this type of

fine must be imposed “through the criminal contempt process.” 512 U.S. at 839.

Consistent with the Court’s distinction, although we sympathize with the district

court’s view that its prior orders had been repeatedly disobeyed, we conclude that the

court was required to afford Jake’s the protections of a criminal contempt proceeding

before imposing an unconditional $68,000 fine for conduct not previously adjudged

to violate its broad and complex injunction.

Conclusion.

Having concluded that the district court erred by imposing a criminal contempt

sanction without affording Jake’s the protections of criminal contempt proceedings,

our normal disposition would be simply to remand for further proceedings. However,
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in this case, the court initially issued an injunction ordering Jake’s to comply with

wide-ranging zoning ordinances. This command to obey the law was overbroad

under general equitable principles. See Swift & Co., 196 U.S. at 396; Beatty, 191

F.2d at 321. Moreover, issuing such a broad decree has now embroiled the district

court in the ongoing task of enforcing local zoning ordinances, permitting the City

to shift its day-to-day enforcement actions from the state courts to a federal court long

after the initial First Amendment issues were resolved. We conclude that the district

court should now withdraw from this discretionary assumption of continuing

supplemental jurisdiction. Accordingly, in No. 02-2931, we affirm the initial

contempt orders insofar as they held Jake’s in contempt for continuing to offer live

nude dancing at 15981 Clayton Avenue in the City of Coates and imposed a

compensatory contempt sanction of $6,490.57. In No. 02-3835, we reverse the

court’s contempt order dated October 4, 2002, except the portions ordering Jake’s to

pay an additional $601.57 in compensatory damages for the first contempt, and we

remand to the district court with directions to modify its injunction so that the decree

only prohibits Jake’s from conducting at the above location the specific sexuallyoriented business at issue when this litigation began -- live nude dancing. 

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