                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 7, 2009 Session

   ENTERTAINER 118 AND MERONEY ENTERTAINMENT, INC. D/B/A
    KEN'S GOLD CLUB v. METROPOLITAN SEXUALLY ORIENTED
                 BUSINESS LICENSING BOARD

                    Appeal from the Chancery Court for Davidson County
                        No. 07-41-II Carol L. McCoy, Chancellor



                    No. M2008-01994-COA-R3-CV - Filed August 14, 2009


        An inspector cited an entertainer and the sexually oriented business in which she worked for
violating an ordinance governing certain requirements for entertainers and businesses engaging in
sexually oriented entertainment. The Metropolitan Sexually Oriented Business Licensing Board
upheld the citations and fined the entertainer and the business $500 each. They appealed and the
chancery court affirmed. They now appeal to the Court of Appeals. We find that the board did not
have authority to assess the fine. We affirm the board and the chancery court’s finding that the
ordinance was violated, and since the board has authority to impose other sanctions, we remand the
matter to the chancery court with instructions to return the matter to the board.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part,
                                    Reversed in part

ANDY D. BENNETT , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and RICHARD H. DINKINS, J., joined.

John Edward Herbison, Nashville, Tennessee, for the appellants, Entertainer 118 and Meroney
Entertainment, Inc. d/b/a Ken's Gold Club.

Lora Barkenbus Fox and Paul Jefferson Campbell, II, Nashville, Tennessee, for the appellee,
Metropolitan Sexually Oriented Business Licensing Board.

                                            OPINION

                                           Background

       According to testimony at the November 8, 2006 meeting of the Metropolitan Sexually
Oriented Business Licensing Board (“the Board”), an inspector for the Board visited Ken’s Gold
Club for an inspection on October 1, 2006. As he was introducing himself and informing the
manager of his purpose, the inspector noticed a waitress run up some stairs. The inspector followed
her and heard her warning people that he was present. In one of the upstairs rooms, the inspector
found Entertainer 118,1 a female, with a male customer. He observed the entertainer straddling the
customer’s legs, “grinding the pubic region and her buttocks against the customer’s pubic region.”2
She was wearing what both legal counsel called an opaque bikini and what the inspector called “a
bra and underwear.” The customer was wearing long pants. There was no skin-to-skin contact, but
the inspector noted that the customer touched Entertainer 118's bikini-bottom-clad buttocks.

        The inspector considered Entertainer 118’s actions to constitute sexually oriented
entertainment. In his opinion, her actions depicted sexual intercourse. He testified that her actions
did not occur on a stage,3 as required by M.C.L. § 6.54.140(C),4 and that she was less than three feet
away from the customer. The inspector brought the manager into the room and filled out an
inspection form stating that Entertainer 118 violated M.C.L. § 6.54.140(B)5 & (C). Another
inspection form stated Ken’s Gold Club violated M.C.L. § 6.54.130(A),6 as well as M.C.L. §
6.54.140(B) & (C). Citations were subsequently issued.



         1
          The names and addresses of sexually oriented business license and permit applicants are confidential. Deja
Vu of Nashville v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 395 (6th Cir. 2001). Thus, “Entertainer
118” is a pseudonym.

         2
          In this context, “grinding” means “an action of rotating the hips with a suggestive motion [or erotic manner](as
in a dance or in a burlesque striptease).” W ebster’s New International Dictionary 1000 (3d ed. 1971) (also available at
http://www.merriam-webster.com/dictionary/grinding).

         3
             Entertainer 118 testified she and the customer were on a couch.

         4
             M.C.L. § 6.54.140(C) provides:

         No customer shall be permitted to have any physical contact with any entertainer on the licensed
         premises while the entertainer is engaged in a performance of live sexually oriented entertainment.
         All performances of live sexually oriented entertainment shall only occur upon a stage at least eighteen
         inches above the immediate floor level and removed at least three feet from the nearest customer.

         5
             M.C.L. § 6.54.140(B) provides:

         No operator, entertainer or employee on the premises for furthering the business, not including
         independent contractors on the premises for repairs or construction, shall encourage or permit any
         person upon the premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any
         entertainer, operator or employee.

         6
             M.C.L. § 6.54.130(A) provides:

         An operator is responsible for the conduct of all entertainers while on the licensed premises and any
         act or omission of any entertainer constituting a violation of the provisions of this chapter shall be
         deemed the act or omission of the operator for purposes of determining whether the operator’s license
         shall be revoked, suspended, renewed or a penalty assessed subject to the limits described in Section
         6.54.150(E).

                                                           -2-
        Entertainer 118 provided a somewhat different version of her activity. She testified that her
customer was wearing a sweater, long pants and perhaps a hat. She said she was dancing to music,
and her whole body was moving side to side and back and forth. She denied grinding her customer’s
pubic region with her pubic region. She denied having sexual intercourse with her customer or
simulating sexual intercourse. She testified that she sat on her customer’s lap nearer to his knees
than to his crotch.7 From her perspective as a performer, she said that her dance was neither erotic
nor arousing: she just considered it “[a] job.”

        The Board voted to sustain the citations and assessed Entertainer 118 and Ken’s Gold Club
with a fine of $500 each.8 Both appealed to the chancery court pursuant to the common law writ of
certiorari. The chancellor upheld the citations and the fines. Entertainer 118 and Ken’s Gold Club
appeal to this court, raising three issues: whether state law authorizes the Board to impose fines,
whether the fine contravenes Article VI, Section 14 of the Tennessee Constitution,9 and whether the
record supports a finding that the entertainer’s conduct constitutes sexually oriented entertainment
within the meaning of the ordinance.

                                                        Analysis

        Review under a common law writ of certiorari is limited to “whether the inferior board or
tribunal has exceeded its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or
fraudulently, or acted without material evidence to support its decision.” Harding Acad. v.
Metropolitan Gov’t of Nashville & Davidson County, 222 S.W.3d 359, 363 (Tenn. 2007). The
reviewing court cannot (1) inquire into the intrinsic correctness of the lower tribunal's decision, (2)
reweigh the evidence, or (3) substitute its judgment for that of the lower tribunal. Id.

        Both appellants challenge the Board’s authority to assess fines. They accurately frame the
issue in their brief as “whether any state statute or Metropolitan Charter provisions authorizes [sic]
the levying of a fine by an administrative tribunal, as distinct from . . . a court.” This issue is a
question of law, which we review de novo without a presumption of correctness. Wilson County
Youth Emergency Shelter, Inc., v. Wilson County, 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999).




         7
             She demonstrated her positioning with the assistance of her legal counsel.

        8
         Entertainer 118, through her legal counsel, took the position that a fine was preferable to any period of
suspension.

         9
          During the pendency of this appeal, the Tennessee Supreme Court decided Barrett v. Tennessee Occupational
Safety and Health Review Commission, No. M2006-2338-SC-R11-CV, 2009 W L 1211327 (Tenn. May 5, 2009), which
determined the constitutional issue against the appellant. Appellant’s counsel conceded at oral argument that the issue
had been decided against him and abandoned his arguments on this issue.



                                                            -3-
        Initially, we must examine Metro’s authority to call for a fine for the violation of its Sexually
Oriented Business Licensing Ordinance. The police power belongs exclusively to the state and
passes to local governments only by legislative enactment. State ex rel. Lightman v. City of
Nashville, 60 S.W.2d 161, 162 (Tenn. 1933). It has long been the law in Tennessee that cities and
counties have only those powers expressly granted by or necessarily implied from state statutes.10
City of Lebanon v. Baird, 756 S.W.2d 236, 241 (Tenn. 1988); Bayless v. Knox County, 286 S.W.2d
579, 585 (Tenn. 1956). A metropolitan government is no different in this regard. See Haines v.
Metro. Gov’t of Davidson County, 32 F. Supp.2d 991, 994 (M. D. Tenn. 1998). The Metropolitan
Charter of Nashville and Davidson County (“Metro Charter”) cannot provide for powers not
authorized by its enabling legislation. Hill v. State ex rel. Phillips, 392 S.W.2d 950, 953 (Tenn.
1965). Therefore, we must search state legislative enactments for the Board’s authority to assess the
$500 fines.

        Consolidation of city and county governments is authorized by a 1953 amendment to Article
XI, Section 9 of the Tennessee Constitution, which states in pertinent part: “The General Assembly
may provide for the consolidation of any or all of the governmental and corporate functions now or
hereafter vested in municipal corporations with the governmental and corporate functions now or
hereafter vested in the counties in which such municipal corporations are located . . . .” Pursuant to
the authority granted by this provision, in 1957, the legislature enacted the statutes governing the
consolidation of county and city governments, now codified as Tenn. Code Ann. §§ 7-1-101 et seq.
Tenn. Code Ann. § 7-1-102(c) explains the sources of authority for the newly consolidated
government:

        After consolidation of a county and a municipal corporation or corporations under
        § 7-1-103, no functions of the governing bodies of the county and the municipal
        corporation, or of the officers thereof, shall be retained and continued, unless
        chapters 1-3 of this title or the charter of the metropolitan government expressly so
        provide, or unless such retention and continuation are required by the Constitution
        of Tennessee. After the consolidation, no officer or agency of the county or of the
        municipal corporation shall retain any right, power, duty or obligation, unless
        chapters 1-3 of this title or the charter of the metropolitan government expressly so
        provide, or unless such retention and continuation are required by the Constitution
        of Tennessee.

Thus, the sources of authority for the consolidated government are the Tennessee Constitution,
chapters 1-3 of Title 7 in the Tennessee Code Annotated (and any subsequent legislative acts
applying to Metro), and prior functions of the city or county retained by the Metro Charter.11 No one

        10
           This principle is sometimes called “Dillon’s Rule.” Southern Constructors v. Loudon County Bd. of Educ.,
58 S.W .3d 706, 710 (Tenn. 2001).

        11
           Tenn. Code Ann. § 7-1-102(c) is consistent with Dillon’s Rule and much more persuasive. W hereas Dillon’s
Rule is merely a canon of statutory construction, Southern Constructors, 58 S.W .3d at 710, Tenn. Code Ann. § 7-1-
                                                                                                      (continued...)

                                                        -4-
argues that the Tennessee Constitution is a source of authority in this case, so the other possibilities
will be the focus of our inquiry.

       The Board points to two state statutes as authority for the Board to assess fines. First, the
Board relies on Tenn. Code Ann. § 7-3-507, the pertinent part of which states: “All metropolitan
governments are empowered to set a penalty of up to five hundred dollars ($500) per day for each
day during which the violation of ordinances, laws and regulations of such metropolitan government
continues or occurs.” The chancellor concluded that, “Under the plain language of the statute, the
Board had authority to levy a $500 fine against each of the Petitioners.” We must respectfully
disagree with the chancellor.

        Statutes on the same subject matter should be construed together. Westinghouse Elec. Corp.
v. King, 678 S.W.2d 19, 23 (Tenn. 1984). Tenn. Code Ann. § 7-3-507 is part of a statutory scheme
enacted in 1993 Tenn. Pub. Acts, ch. 335, codified as Tenn. Code Ann. § 7-3-501 through 508,
regarding the violation of metropolitan government ordinances, laws and regulations. These statutes,
however, clearly envision a court appearance after the issuance of a citation. See Tenn. Code Ann.
§§ 7-3-501 (violator to be given a citation “showing the ordinance, law or regulation violated and
the date, time and place when the violator is to appear in court.”) & -502 (requiring citations to
include consequences of a failure to appear in court).12 Given that this is not the system that was
used,13 we cannot find that Tenn. Code Ann. § 7-3-507 applies in this case.

        The Board also relies on Tenn. Code Ann. § 7-51-1121, which is a part of the Adult-Oriented
Establishment Registration Act of 1998, Tenn. Code Ann. §§ 7-51-1101 et seq. Tenn. Code Ann.
§ 7-51-1121(b) states:




         11
            (...continued)
102(c) is a rule of law concerning the sources of a metropolitan government’s authority. W hile Metro correctly argues
that Tenn. Code Ann. § 7-1-102(b) requires a liberal interpretation of the statutes governing Metro’s authority, Metro
does not and cannot explain away the clear language of Tenn. Code Ann. § 7-1-102(c) limiting the sources of that
authority. W hatever powers Metro is given must be interpreted liberally, but those powers still must be traceable to the
Tennessee Constitution, Tennessee legislative enactments or the prior Nashville Charter.

         12
          Tenn. Code. Ann. § 7-3-502 states that “[e]ach citation or civil warrant issued pursuant to this part [Tenn.
Code Ann. §§ 7-3-501 et seq.] shall have printed on it, in large, conspicuous block letters, the following:

         NOTICE: FAILURE TO APPEAR IN COURT ON THE DATE ASSIGNED BY THIS
         CITATION/W ARRANT CAN RESULT IN: THE COURT ORDERING YOU TO PAY A CIVIL
         FINE/PENALTY, COURT COSTS AND LITIGATION TAXES TO THE METROPOLITAN
         GOVERNMENT; THE ISSUANCE OF AN EXECUTION AND GARNISHMENT TO COLLECT
         THE FINE/PENALTY, COSTS AND TAXES; AND THE ISSUANCE OF A BENCH W ARRANT
         FOR YOUR ARREST FOR CONTEMPT OF COURT, W ITH A PENALTY OF UP TO FIVE (5)
         DAYS IN JAIL AND/OR A FINE OF UP TO TEN DOLLARS ($10.00).

         13
              The citations did not contain the language required by Tenn. Code Ann. § 7-3-502.

                                                          -5-
       Notwithstanding any provision of subsection (a) or any other law to the contrary, if
       a city or other political subdivision in this state chooses to enact and enforce its own
       regulatory scheme for adult-oriented establishments and sexually-oriented businesses,
       then the provisions of this part shall not apply within the jurisdiction of such city or
       other political subdivision.

The Board views this provision as implicit authorization for a political subdivision to enact
regulations, which include fines, for adult-oriented establishments and sexually-oriented businesses.
We do not read Tenn. Code Ann. § 7-51-1121(b) so broadly. Tenn. Code Ann. § 7-51-1121(b)
merely recognizes that some local governments may have independent authority to enact such
regulations and expressly provides for that contingency. It does not grant such authority to local
governments.

       The Board also relies on three provisions of the Metro Charter, § 2.01(36), (39) and (40),
which state:

       The metropolitan government of Nashville and Davidson County shall have power:
       ...
       36. To create, alter or abolish departments, boards, commissions, offices and
       agencies other than those specifically established by this Charter, and to confer upon
       the same necessary and appropriate authority for carrying out of all powers, including
       the promulgation of building, plumbing, zoning, planning and other codes; but when
       any power is vested by this Charter in a specific officer, board, commission or other
       agency, the same shall be deemed to have exclusive jurisdiction within the particular
       field.
       ...
       39. To provide penalties for violations of any ordinance adopted pursuant to the
       authority of this Charter or of general law.

       40. To pass all ordinances necessary for the health, convenience, safety and general
       welfare of the inhabitants, and to carry out the full intent and meaning of this Charter,
       as fully as if specifically authorized.

It is important to note that these charter provisions are traceable to state legislative enactments.
Subsection 36 is authorized by Tenn. Code Ann. § 7-2-108(a)(16) (charters of consolidated
governments shall provide for departments, agencies, boards and commissions). Subsections 39 and
40 are derived from the 1947 Private Act Charter for the City of Nashville, 1947 Tenn. Priv. Acts,
ch. 246, Art. 13(14) and (34) and are, therefore, permitted by Tenn. Code Ann. § 7-1-102(c).

       Metro Charter § 2.01(36) & (40) support the creation of a board to regulate adult businesses.
Ordinance 097-796, the original ordinance passed on August 19, 1997, and codified as M.C.L.
6.54.010 et seq., created the Adult Entertainment Licensing Board and a regulatory system for adult



                                                 -6-
businesses.14 The preamble of the ordinance indicates that it was intended “to regulate adult
entertainment establishments in order to promote and secure the general welfare, health and safety
of the citizens of Metropolitan Nashville and Davidson County.” Section 1 of the ordinance
elaborates upon its purpose and contains many findings supporting that purpose. M.C.L. 6.54.150
creates a $500 fine for a violation of the metro ordinances governing sexually oriented businesses.
The fine is authorized by Metro Charter § 2.01(39) and Tenn. Code Ann. § 6-54-308, which
authorizes a $500 fine for violations of municipal ordinances.15

       Now that we have established that Metro’s regulation of sexually oriented businesses and
imposition of fines upon such businesses and entertainers are permissible,16 we must examine
whether the Board itself has authority to impose the fine or whether the fine must be assessed by a
court.

       The general law on enforcement of metropolitan ordinances is found in Tenn. Code Ann. §§
7-3-501 et seq. Tenn. Code Ann. § 7-3-501 states:

         When any person violates an ordinance, law or regulation of a metropolitan
         government, any police or peace officer of such metropolitan government or any
         employee of the metropolitan government authorized to enforce such ordinance, law
         or regulation, in whose presence the violation is committed or who determines after
         investigation that there is probable cause such a violation has been committed, may
         issue a citation or civil warrant, giving a copy to the violator, showing the ordinance,
         law or regulation violated and the date, time and place when the violator is to appear
         in court.

As we have already noted, Tenn. Code Ann. §§ 7-3-501 et seq. envisions a court appearance after
the issuance of a citation. It appears all violations of Title 6 of the Metropolitan Code of Laws,
Business Licenses and Regulations, that concern penalties are dealt with in court. See M.C.L. Title
6. The only exceptions are fines assessed by the Metropolitan Sexually Oriented Business Licensing
Board and the Metropolitan Beer Permit Board. The Beer Board has express state statutory authority
to assess civil penalties. Tenn. Code Ann. § 57-5-108(a)(1)(A) & (B). Even then, the penalty is
reviewed by statutory writ of certiorari, with a trial de novo as a substitute for an appeal. Tenn. Code

         14
          A subsequent ordinance, not in the record, is presumed to change the name of the board to the M etropolitan
Sexually Oriented Business Licensing Board.

         15
             Metro has all the powers that cities have under the general laws of Tennessee. Tenn. Code Ann. § 7-2-
108(a)(1)(A). Pursuant to Tenn. Code Ann. § 6-54-308(a), “Except as provided in § 6-54-306 for home rule
municipalities, the legislative body of any other municipality may establish a monetary penalty not to exceed five hundred
dollars ($500) for each violation of an ordinance of such municipality.” Tenn. Code Ann. § 6-54-308(b) exempts moving
traffic violations from the authority granted in Tenn. Code Ann. § 6-54-308(a).

         16
             In Deja Vu of Nashville v. Metro Gov’t of Nashville and Davidson County, 274 F.3d 377, 392 (6 th Cir. 2001),
litigation in which Ken’s Gold Club was a party, the parties agreed that Metropolitan Nashville validly enacted the
ordinance.

                                                           -7-
Ann. § 57-5-108(d). We have found no similar state statutory authority for the Metropolitan
Sexually Oriented Business Licensing Board to assess the fine. Absent such authority, the Board
cannot assess a fine against either Entertainer 118 or Ken’s Gold Club.

       The lack of authority to assess a fine does not leave the Board powerless. Under M.C.L.
6.54.150(B)(2),17 a permit can be suspended for five to thirty days for a first violation.

        The appellants challenge the Board’s finding that a violation occurred. Entertainer 118 was
cited for violating M.C.L. § 6.54.140(B) and (C). M.C.L. § 6.54.140(B) provides:

       No operator, entertainer or employee on the premises for furthering the business, not
       including independent contractors on the premises for repairs or construction, shall
       encourage or permit any person upon the premises to touch, caress or fondle the
       breasts, buttocks, anus or genitals of any entertainer, operator or employee.

M.C.L. § 6.54.140(C) provides:

       No customer shall be permitted to have any physical contact with any entertainer on
       the licensed premises while the entertainer is engaged in a performance of live
       sexually oriented entertainment. All performances of live sexually oriented
       entertainment shall only occur upon a stage at least eighteen inches above the
       immediate floor level and removed at least three feet from the nearest customer.

        No party contests that Ken’s Gold Club is a sexually oriented business under the ordinance.
Entertainer 118 and Ken’s Gold Club contest whether Entertainer 118's conduct constitutes “sexually
oriented entertainment” under the ordinance. “Sexually oriented entertainment” is defined by the
ordinance to mean “the regular presentation, for a fee or incidentally to another service, of material
or exhibitions distinguished or characterized by an emphasis on matter depicting, describing or
relating to ‘specified sexual activities’ or ‘specified anatomical areas’ as defined in this section for
observation by patrons therein.” M.C.L. § 6.54.010(AA). The ordinance then defines “Specified
sexual activities” as:

       1. Human genitals in a state of sexual stimulation or arousal;

       2. Acts of human masturbation, sexual intercourse or sodomy;


       17
            M.C.L. 6.54.150(B)(2) states:

       Upon the first violation of Chapter 6.54, Tennessee Code Annotated Section 57-4-204 or Metropolitan
       Code Section 7.24.030 within a twenty-four-month period, not including periods of suspensions, the
       licensee shall either be fined five hundred dollars or his/her license shall be suspended for a period no
       less than five days and no longer than thirty days or the licensee shall be both fined five hundred
       dollars and his or her license suspended for a period of not less than five days and no longer than thirty
       days.

                                                          -8-
         3. Fondling or erotic touching of human genitals, pubic region, buttock or female
         breasts.

M.C.L. § 6.54.010(DD).

        Entertainer 118 and Ken’s Gold Club maintain that the ordinance was not violated. In their
view, there was no actual “touching of human genitals, pubic region, buttock or female breasts,” or
depiction of sexual intercourse because Entertainer 118 and her customer were clothed.
Consequently, she was not engaged in “sexually oriented entertainment,” and the “no touch” and
“three foot distance” requirements of M.C.L. § 6.54.140(B) and (C) were not violated because they
do not apply.

       The words of ordinances, like statutes, must be given their natural and ordinary meaning.
Hargrove v. Metro. Gov’t of Nashville & Davidson County, 154 S.W.3d 565, 568 (Tenn. Ct. App.
2004). Requiring a depiction of sexual intercourse or the touching of an entertainer’s buttocks to
involve skin-to-skin contact goes far beyond the natural and ordinary meaning of the words of the
ordinance. Such an interpretation also unreasonably narrows the ability to achieve at least one of the
purposes of the provision: to “redress the high instances of sex crimes prevalent at sexually oriented
businesses.” Deja Vu of Nashville, 274 F.3d at 396. We interpret the ordinance as the Board did:
a customer’s touching of an entertainer’s bikini-bottom-clad buttocks is a violation of the ordinance.

       Entertainer 118 and Ken’s Gold Club argue that M.C.L. § 6.54.140(B) and (C) are too vague
to be enforced. They point to Tenn. Code Ann. § 39-13-501(6), a criminal statute that defines
“sexual contact” to include the touching of clothing over another person’s “intimate parts.”18 Due
process, however, requires less precision in civil statutes than in criminal statutes. State ex rel.
Woodall v. D & L Co., Inc., No. W1999-00925-COA-R3-CV, 2001 WL 524279, *8 (Tenn. Ct. App.
2001). “A statute is not unconstitutionally vague merely because it calls upon the trier of fact to
apply his or her own reasonable judgment.” Id. While the ordinance may require the exercise of
reasonable judgment to determine what “touching” is, as a civil matter, it is not unconstitutionally
vague.19

       Without rehashing the testimony, we find that there is material evidence to justify the Board’s
conclusion that Entertainer 118 was touched by her customer in a manner that violated M.C.L. §

         18
              Intimate parts are clearly defined in Tenn. Code Ann. § 39-13-501(2).

         19
             The Board has argued that res judicata bars Entertainer 118 and Ken’s Gold Club from challenging the
constitutionality of the definition of “sexually oriented entertainment” found in the ordinance due to the Deja Vu
litigation. See Deja Vu, 274 F.3d at 277. Res judicata bars a second law suit between the same parties or their privies
on the same cause of action with respect to all issues that were or could have been litigated. In re Estate of Boote, 198
S.W .3d 699, 718 (Tenn. Ct. App. 2005). Ken’s Gold Club was a party to the Deja Vu litigation, in which the
constitutionality of the definition of “sexually oriented entertainment” was challenged. W e believe Ken’s Gold Club is
barred by res judicata from raising this issue. While it is possible that Entertainer 118 is also barred as a privy of Ken’s
Gold Club, see Bates v. Township of Van Buren, 459 F.3d 731, 736 (6th Cir. 2006), the record is not fully developed
on this point, so we have elected to address the vagueness issue.

                                                            -9-
6.54.140(B). We further find that there is material evidence to support the Board’s conclusion that
Entertainer 118 engaged in "sexually oriented entertainment" within the meaning of M.C.L. §
6.54.010(AA) and that Entertainer 118 violated M.C.L. § 6.54.140(C). Thus, Ken’s Gold Club also
violated these regulations and M.C.L. § 6.54.130(A) as well.

                                             Conclusion

        We find that the Sexually Oriented Business Licensing Board cannot assess a fine directly
against either Entertainer 118 or Ken’s Gold Club. We also affirm the decision of the Board that
Entertainer 118 and Ken’s Gold Club violated the Metro ordinances. We remand the matter to the
trial court with instructions to return the matter to the Board for reconsideration of the penalty to be
assessed against Entertainer 118 and Ken’s Gold Club consistent with this opinion.

       Costs of appeal are assessed against appellants Entertainer 118 and Ken’s Gold Club, for
which execution may issue if necessary.


                                                        ___________________________________
                                                        ANDY D. BENNETT, JUDGE




                                                 -10-
