Déjà Vu of Nashville, Inc. is a business engaged “in the presentation of female performance dance entertainment to the consenting adult public.” More prosaically, Déjà Vu operates a strip club. That business, you will not be surprised to learn, has its detractors. After those detractors found themselves unable to prevent Déjà Vu from operating as a permitted use in downtown Nashville, they took aim at Déjà Vu’s planned valet service, which was to be operated by a third party. They succeeded in persuading the city to deny the permit application for that valet service. In return, Déjà Vu sued.
Déjà Vu’s suit named the Metropolitan Government of Nashville, a Nashville city councilmember opposed to Déjà Vu’s business, and property owners who opposed the valet service’s permit. The club principally alleged that (1) the defendants engaged in conspiracy to deny the third-party’s valet permit; (2) Nashville denied the valet permit without substantive and procedural due process; and (3) Nashville denied the permit due to disagreement with or disdain for Deja Vu’s First Amendment protected speech and expression. Defendants moved to dismiss, and the Court granted the motion.
Several lines of argument are of interest to this blog. First, the court agreed with Déjà Vu that it enjoyed standing to bring a First Amendment claim. Although Nashville denied the valet service’s permit, not Déjà Vu’s, the club’s allegations that the permit denial prevented it from servicing certain clientele, that the denial was due to its protected First Amendment activity, and that its First Amendment rights had been violated satisfied the injury-in-fact requirement of standing.
From there, however, it was all downhill for Déjà Vu. Its conspiracy claim failed because Section 1985 conspiracies must be the product of racial or protected-class based animus. Déjà Vu wholly failed to identify a class targeted by the conspiracy and therefore failed to state a claim for relief under Section 1985.
Déjà Vu’s substantive and procedural due process claims likewise failed because Nashville enjoyed discretion as to the valet permit’s approval—and thus, Déjà Vu could not claim a protected property interest in the permit. That conclusion also doomed Déjà Vu’s First Amendment claim: because Déjà Vu lacked a constitutionally protected property interest in the valet permit, the denial of that permit simply had no bearing on Déjà Vu’s First Amendment rights, according to the court. Thus, for now at least, the “consenting adult public” must find its own parking spots.
Full case text available here: https://law.justia.com/cases/federal/district-courts/tennessee/tnmdce/3:2018cv00511/74769/51/.