BERLIN CHARTER TOWNSHIP V PATRICIA A PROUD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BERLIN CHARTER TOWNSHIP,
UNPUBLISHED
February 26, 2004
Plaintiff/CounterDefendant/Appellant,
v
No. 242947
Monroe Circuit Court
LC No. 95-3886-CH
PATRICIA A. PROUD d/b/a THE BRASS SWAN
COMPANY,
Defendant/Counter-Plaintiff/
Appellee.
Before: Donofrio, P.J., and Griffin and Jansen, JJ.
PER CURIAM.
Plaintiff/counter-defendant Berlin Charter Township (“the township”) appeals by leave
granted an order denying the township’s motion for summary disposition as to the township.
The trial court granted the township’s motion for summary disposition as to the township trustees
and denied defendant/counter-plaintiff Patricia Proud’s motion for summary disposition on her
claim of a constitutional tort avoiding governmental immunity. On appeal, the township argues
that Proud’s constitutional claims must fail because the ordinance at issue is content neutral, is
narrowly tailored to meet a governmental interest and does not deprive Proud of reasonable
alternative avenues of communication.
Also, the township argues that principles of
governmental immunity preclude Proud’s remaining tort claims. We agree, and reverse.
The township enacted an ordinance regulating the operation of adult entertainment
businesses in the township. This case arises out of Proud’s counter-complaint against the
township and the township’s trustees after the circuit court imposed a preliminary injunction
enjoining her from operating a “topless bar” in violation of the adult entertainment ordinance.
Proud’s counterclaim contains the following counts: (I) the deprivation of civil rights pursuant
to 42 USC § 1983; (II) a conspiracy by the trustees to commit that civil rights violation; (III) the
trustees’ failure to prevent that civil rights violation; (IV) the violation of free speech under the
state constitution; (V) intentional interference with business relations; (VI) intentional infliction
of emotional distress; and (VII) conspiracy. In Count VIII, Proud requested punitive damages.
The parties filed cross-motions for summary disposition. The circuit court denied
Proud’s motion for summary judgment. The court granted in part the township’s motion when it
dismissed the trustees as being immune from suit when acting in furtherance of legislative duties.
-1-
The court ruled that the trustees had been engaged in a discretionary, policymaking decision and
as such were immune from suit. As to the township, however, the circuit court denied its motion
of summary disposition ruling that,
The threshold issue in Proud’s civil conspiracy theory against the
Township concerns whether the Township was involved in a proper exercise and
discharge of a governmental function. MCL 691.1407. In Admiral Ins Co v
Columbia Cas Ins Co, 194 Mich App 300, 313; 486 NW2d 351 (1992), the
Michigan Court of Appeals enumerated among the elements amounting to civil
conspiracy, “to accomplish a lawful purpose by criminal or unlawful means.”
And in Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 591; 363
NW2d 641 (1984), found (sic) that governmental agencies’ ultra vires activities
were not entitled to governmental immunity under MCR 2.116(C)(7).
Proud has pled the Township had utilized State Police and Liquor Control
to investigate her establishment in furtherance of an alleged conspiracy to put her
out of business. While the Court is presently hesitant to grant the Township’s
motion for summary judgment, Proud will need to come forward with evidence
toward the issue of conspiracy and demonstrate something in the way of unlawful
conduct on the part of the Township outside the Township’s proper exercise of
police powers. Essentially, there needs to be a showing of Township acts
independent of authorized legislative function in furtherance of a conspiracy to
put Proud out of business.
The circuit court’s order dismissed the suit against the trustees, denied both the
township’s and Proud’s motions for summary disposition and dismissed Proud’s claim for
punitive damages. It is from this order that the township appeals.
On appeal, the township argues that the trial court erred when it denied its motion for
summary disposition because the township’s adult entertainment ordinance is content-neutral,
narrowly drawn to achieve a legitimate governmental objective, allows reasonable alternative
avenues of communication, and therefore does not violate Proud’s constitutional rights and
accordingly her claim for damages must fail. Proud counters that the ordinance restricts her
protected speech and impermissibly infringes on constitutionally protected activity under the
First Amendment and Article 1, § 5 of our state constitution. Proud alleges that the ordinance is
unconstitutional because it was enacted solely “to harass Proud and regulate the content of her
business establishment” and as a result, the township is not entitled to summary disposition.
We review de novo a trial court’s ruling on a motion for summary disposition as well as
its resolution of any constitutional issues raised. Armstrong v Ypsilanti Charter Twp, 248 Mich
App 573, 582; 640 NW2d 321 (2001). As articulated by this Court in Van Buren Twp v Garter
Belt Inc, 258 Mich App 594, 608-609; 673 NW2d 111 (2003):
Statutes and ordinances are presumed to be constitutional and the burden of
proving otherwise rests with the challenger. Gora v Ferndale, 456 Mich 704,
711-712; 576 NW2d 141 (1998); People v Boomer, 250 Mich App 534, 538; 655
NW2d 255 (2002). Further, we must construe a statute or ordinance as
constitutional unless its unconstitutionality is clearly apparent. Owosso v
-2-
Pouillon, 254 Mich App 210, 213; 657 NW2d 538 (2002); People v Barton, 253
Mich App 601, 603; 659 NW2d 654 (2002).
Further, “MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted
by law, and requires consideration of all documentary evidence filed or submitted by the
parties.” Glancy v Rosevilles, 457 Mich 580, 583; 577 NW2d 897 (1998). When deciding a
motion for summary disposition under MCR 2.116(C)(7) or (10), a court must consider the
pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the
light most favorable to the nonmoving party. Ritchie-Gamester v City of Berkley, 461 Mich 73,
76; 597 NW2d 517 (1999).
In Jott, Inc v Charter Twp of Clinton, 224 Mich App 513, 526-527; 569 NW2d 841
(1997), this Court recognized that:
Nonobscene, erotic entertainment, such as topless dancing, is a form of
protected expression under the First Amendment, but enjoys less protection than
other forms of First Amendment expression, such as political speech. Barnes v
Glen Theatre, Inc, 501 US 560, 565-566; 111 S Ct 2456, 2460; 115 L Ed 2d 504
(1991); Woodall v El Paso, 49 F 3d 1120, 1122 (CA 5, 1995); Christy v City of
Ann Arbor, 824 F 2d 489, 492 (CA 6, 1987).
The use of zoning and licensing ordinances to regulate exhibitions of
‘adult entertainment’ is widely recognized. Young v American Mini Theatres, Inc,
427 US 50; 96 S Ct 2440; 49 L Ed 2d 310 (1976); Ferndale v Ealand (On
Remand), 92 Mich App 88, 92; 286 NW2d 688 (1979). As the United States
Supreme Court stated in Young, supra at 62; 96 S Ct at 2448:
‘The mere fact that the commercial exploitation of material protected by the First
Amendment is subject to zoning and other licensing requirements is not sufficient
reason for invalidating these ordinances.’
The Jott Court also set forth the following standard for reviewing the constitutionality of
ordinances such as the one at issue in the present case as dictated by the United States Supreme
Court.
An ordinance that does not suppress protected forms of sexual expression,
but which is designed to combat the undesirable secondary effects of businesses
that purvey such activity, is to be reviewed under the standards applicable to
content-neutral time, place, and manner regulations. Renton v Playtime Theatres,
Inc, 475 US 41, 49; 106 S Ct 925, 930; 89 L Ed 2d 29 (1986). Content-neutral
time, place, and manner regulations are acceptable as long as they are designed to
serve a substantial government interest and do not unreasonably limit alternative
avenues of communication. Id. at 47. [Jott, supra, 224 Mich App 527.]
Like the ordinance in Jott, the ordinance here by its terms does not ban topless dancing,
but, rather, merely restricts the location of such forms of adult entertainment. In Jott, the aim of
the ordinance was not to suppress such activity, “but to combat the secondary effects of adult
uses on surrounding areas ‘in order to insure that the surrounding areas will not experience
-3-
deleterious, blighting or downgrading influences.’” Jott, supra, 224 Mich App 527. Here, the
purpose of the ordinance is almost exact,
The Township Board of Berlin Charter Township recognizes and concludes that
the activity of ‘adult entertainment’ . . . is an activity which, because of its nature,
is known to have seriously objectionable operational characteristics, and thus is an
activity which has a deleterious effect on adjacent areas and unless properly
regulated would result in the destruction of neighboring property values and a
threat to the public health, safety and welfare of the persons in Berlin Charter
Township. Accordingly, it is the intent and purpose of the Berlin Charter
Township Board to adopt reasonable regulations for adult entertainment
businesses in the Township, so as to minimize the injury caused by this activity
on the public health, safety, and welfare on the persons and property with the
Township.
The Court found in Jott, that “the ordinance may be viewed as a content-neutral time,
place, and manner restriction on expressive conduct.” Jott, supra, 224 Mich App 527, citing
Renton, supra, 475 US 48-49. Applying Jott, because of the similarity between the ordinance at
issue here and the Jott ordinance we find the ordinance is “a content-neutral time, place, and
manner restriction on expressive conduct.” Id.
Pursuant to the analysis in Jott, the next step is to “determine whether the ordinance is
designed to serve a substantial governmental interest and whether it allows for reasonable
alternative avenues of communication.” Jott, supra, 224 Mich App 527. The Jott Court points
out that,
[i]n Renton, supra, a city ordinance prohibited any adult motion picture theater
from locating within one thousand feet of any residential zone, single- or
multiple-family dwelling, church, or park and within one mile of any school. The
Supreme Court found that the ordinance was designed to serve a substantial
governmental interest ‘because a city’s interest in attempting to preserve the
quality of urban life is one that must be accorded high respect.’ [Renton, supra] at
50, quoting Young, supra at 71. [Jott, supra, 224 Mich App 528.]
As was the case in Jott, the same interest is at stake here. The ordinance expressly identifies the
objective of protecting neighborhoods from the “deleterious effect on adjacent areas . . . [and] . .
. the destruction of neighboring property values” from adult uses, as well as a “a threat to the
public health, safety and welfare” to the community. Following Jott, we conclude that the
ordinance at issue is adequately tailored to meet the particular objective. The ordinance prohibits
adult businesses from locating within one thousand feet of each other in order to lessen the
harmful effects caused by multiple adult uses in a certain area. Jott, supra, 224 Mich App 528.
We also reject Proud’s claim that the ordinance is unconstitutional because it fails to
allow for reasonable alternative avenues of communication. “Although a trial court’s ruling on a
constitutional challenge to a zoning ordinance is reviewed de novo, this Court accords
considerable deference to the trial court’s factual findings, and those findings will not be
disturbed unless we would have reached a different result had we occupied the trial court’s
-4-
position.” Jott, supra, 224 Mich App 525-526, citing Guy v Brandon Twp, 181 Mich App 775,
778-779; 450 NW2d 279 (1989).
Here, the trial court held evidentiary hearings and, with attorneys for each of the parties
present, also physically visited and inspected the premises indicated by the township as suitable
alternative sites. “Because each city presents its own unique set of circumstances, ‘each case
must be decided according to its specific facts.’” Jott, supra, 224 Mich App 533 citing Christy,
supra, 824 F 2d 491. The trial court then found on the record as a finding of fact that there were
sufficient alternative sites, and held that Proud did not establish that the township had no
available alternative sites. Like Jott, supra, the trial court examined the individual characteristics
of Berlin Township and determined that the ordinance does not unreasonably limit alternative
avenues of communication. According the trial court “considerable deference,” and after
reviewing the lower court record, we will not disturb the factual findings of the trial court
because there is no evidence in the lower court record to lead us to the opposite conclusion.
The township is entitled to summary disposition because the township’s adult
entertainment ordinance is content-neutral, narrowly drawn to achieve a legitimate governmental
objective, and allows reasonable alternative avenues of communication and therefore does not
violate Proud’s constitutional rights.
Next, the township argues it is entitled to summary disposition because governmental
immunity is applicable because the township did not violate Proud’s constitutional rights. The
applicability of governmental immunity is a question of law reviewed de novo on appeal. Baker
v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995). Also, the
decision to grant or deny a motion for summary disposition is reviewed de novo. Maiden v
Rozwood, 461 Mich 109, 118-119; 597 NW2d 817 (1999). We review the record in the same
manner as the trial court to determine whether the movant was entitled to judgment as a matter of
law. Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998); Michigan Ed
Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 725 (2000).
The crux of Proud’s argument is that the township is not entitled to summary disposition
because governmental immunity is not applicable because the township violated Proud’s
constitutional rights. Because the ordinance is constitutional, Proud’s constitutional rights have
not been violated by the enactment of the ordinance, there is no tort and this issue is moot. We
will note however that the determination of whether an activity was a governmental function
must focus on the general activity and not the specific conduct involved at the time of the tort.
Tate v Grand Rapids, 256 Mich App 656, 661; 671 NW2d 84 (2003). Because the township’s
adult entertainment ordinance is content-neutral, narrowly drawn to achieve a legitimate
governmental objective, and allows reasonable alternative avenues of communication, clearly
there was “some constitutional, statutory, or other legal basis” for the township’s enactment of
the ordinance and governmental immunity would apply in the absence of mootness. Hyde v Univ
of Michigan Bd of Regents, 426 Mich 223, 253; 393 NW2d 847 (1986).
Finally, the township argues that even aside from the application of governmental
immunity, the township should be granted summary disposition for the reason that Proud cannot
establish the elements of conspiracy. Proud correctly argues that this issue should not be
considered by this Court since the township raised it for the first time on appeal. The trial court
stated as part of its opinion that “Proud will need to come forward with evidence toward the
-5-
issue of conspiracy and demonstrate something in the way of unlawful conduct on the part of the
Township outside the Township’s proper police powers. Essentially, there needs to be a showing
of Township acts independent of authorized legislative function in furtherance of a conspiracy to
put Proud out of business.” Apparently the township interpreted this to mean Proud needed to
prove the elements of an intentional tort in order to prevail and argued on appeal that Proud
cannot prove the elements of the intentional tort of conspiracy. We will not reach this issue in
any event, not only because it was not properly preserved, but because summary disposition is
appropriate by the operation of the previous two issues, supra.
Reversed.
/s/ Pat M. Donofrio
/s/ Richard Allen Griffin
/s/ Kathleen Jansen
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
