106 Forsyth Corporation v. Bishop

• Decision Date: 02 February 1972
• Docket Number: Civ. A. No. 792.
• Citation: 362 F. Supp. 1389
• Parties: 106 FORSYTH CORPORATION d/b/a Paris Theatre, Petitioner, v. Julius F. BISHOP, In his capacity as Mayor of the City of Athens, et al., Defendants, Jointly and Severally.
• Court: U.S. District Court — Middle District of Georgia

362 F. Supp. 1389

106 FORSYTH CORPORATION d/b/a Paris Theatre, Petitioner, v. Julius F. BISHOP, In his capacity as Mayor of the City of Athens, et al., Defendants, Jointly and Severally.

Civ. A. No. 792.

United States District Court, M. D. Georgia, Athens Division.

February 2, 1972.

D. Freeman Hutton, Atlanta, Ga., Robert Eugene Smith, Towson, Md., R. Bruce Lowry, Athens, Ga., for petitioner.

Joseph J. Gaines, Athens, Ga., for defendants.

BOOTLE, District Judge:

The plaintiff, 106 Forsyth Corporation d/b/a Paris Theatre, sues the Mayor and Board of Aldermen of the City of Athens in their official capacities seeking injunctive relief against the City's proposed conducting of a hearing to determine whether plaintiff's license to operate a movie theater in the City of Athens should be revoked and asks also for a declaratory judgment declaring unconstitutional the provisions of a municipal ordinance providing for such hearing and declaring unconstitutional also a Municipal Zoning Ordinance and the State enabling statute. The parties have been granted a hearing at which they chose to introduce no evidence but to rely upon the pleadings and certain stipulations.

The facts as they appear from the pleadings and said stipulations are as follows. The plaintiff was issued its license to conduct said theater on April 15, 1971. On or about December 14, 1971, the defendants served upon the plaintiff a written notice, and on or about December 29, 1971, an additional notice, which notices are hereinafter discussed.

As will be observed from said notice of December 14, 1971 the Mayor and Council propose to conduct a hearing to determine whether plaintiff's license should be revoked upon the grounds: (1) that on December 6, 1971, plaintiff intentionally exhibited to the general public a specified film which "contained obscene and indecent scenes and acts by nude women and men of sexual intercourse, cunnilingus, and fellatio, which material considered as a whole and applying contemporary community standards predominantly appeals to the prurient interest in nudity, sex, and excretion and is utterly without redeeming social value and transgresses substantially beyond customary limits of candor in describing and representing such matters contrary to the laws of this State as aforesaid" which constituted a "violation of Section 26-2101, Georgia Code", and (2) that on July 10, 1971 the plaintiff exhibited a specified obscene motion picture which "contained obscene and indecent acts of sexual intercourse between nude men and women, which material when considered as a whole and applying contemporary community standards predominantly appeals to the prurient interest in nudity, sex, or excretion and is utterly without redeeming social value and transgresses substantially beyond customary limits of candor in describing and representing said matters, contrary to the laws of said State as aforesaid" which was "violation of Section 26-2101, Georgia Code." And as appears from said notice of December 29, 1971, the defendants propose to determine at said hearing whether said license should be revoked upon the further ground that the plaintiff is conducting an "Adult Movie House" "within 200 yards of the First United Methodist Church of Athens" as prohibited by an ordinance of the City of Athens adopted July 6, 1971 pursuant to authorization of an Act of the Georgia Legislature approved April 13, 1971.

With respect to proposed grounds number 1 and number 2 plaintiff contends that its license cannot be legally revoked under the procedure proposed by the City in that there has thus far been no judicial determination that either movie complained of is obscene; that to revoke said license by virtue of any determination of obscenity made by the Mayor and Council would be equivalent to the imposition of a previous restraint upon plaintiff with respect to said two films and with respect to any and all other films it might plan to exhibit in the future; that the Mayor and Council is not so legally constituted as to be capable of affording a judicial determination of obscenity and that accordingly its license cannot be legally revoked by the proposed procedure even assuming arguendo that said movies are obscene. And with respect to the third ground of revocation, the plaintiff contends that the state statute under which said ordinance of July 6, 1971 was adopted and the ordinance itself are unconstitutional as written and as applied because they deny equal protection of the law to plaintiff and impinge upon the First Amendment guarantees of free speech and press and seeks the convening of a three-judge court to grant a declaratory judgment to that effect.

On the other hand, the defendants contend with respect to Grounds One and Two that the power of a municipality to require a license implies the power to revoke it for a sufficient cause; that if, indeed, plaintiff exhibited obscene movies thus violating the criminal statutes of the State of Georgia such exhibition and violation constitute sufficient cause for revocation; that the Mayor and Council is the appropriate body to pass upon the question of revocation and is the appropriate body initially to determine judicially whether plaintiff violated the Georgia statutes by exhibiting obscene films; that no previous restraint is involved but merely a question of revocation of a business license for past conduct and that in this setting the Mayor and Council is authorized to make a judicial determination of obscenity vel non. Similarly, with respect to proposed Ground Three, the defendants contend that they are legally competent to determine whether plaintiff has conducted an "Adult Movie House" within 200 yards of the Methodist Church even though the Georgia statute defines an "Adult Movie House" as a theater which shows for public viewing on a regular, continuing basis so-called "adult films" depicting sexual conduct and defines "sexual conduct" as "acts of masturbation, homosexuality, sodomy, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be female, breast;" and that said Act of the Legislature is in all respects constitutional.

It was stipulated that with respect to the film of July 10, 1971, four arrests were made and all arrestees were bound over to a trial court. It is not clear whether any or all of these four defendants waived commitment hearings. And with respect to the film of December 6, 1971, it is stipulated that two persons were arrested and both of the arrestees were bound over by the committing magistrate. As yet, none of these six arrested persons has been tried. It was stipulated also that some defendants were arrested and charged with selling obscene magazines on the premises of plaintiff's theater or in connection therewith and that some of these defendants have been tried and convicted and that their convictions are now on appeal.

THREE JUDGE COURT NOT REQUIRED

A threshold matter is whether there exists any substantial question as to the constitutionality of the Georgia statute, so as to require the convening of a three-judge court. We are convinced that this contention of plaintiff is so insubstantial as not to warrant a three-judge court. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Hurtado, etc. v. U. S. A., 5 Cir., 1971, 452 F.2d 951.

The power and necessity for state legislatures and municipal governments to impose restrictions through zoning laws and ordinances is no longer subject to question. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Mosher v. Beirne, 357 F.2d 638 (8th Cir. 1966); Wallach v. City of Pagedale, Missouri, 359 F.2d 57 (8th Cir. 1966). A zoning statute or ordinance should not be declared unconstitutional unless its "provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid, 272 U.S. at 395, 47 S.Ct. at 121. And the exercise of police power in this regard must be upheld if any state of facts either known or which could be reasonably assumed affords support for it. United States v. Carolene, 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234, 1242 (1938); Goldblatt, 369 U.S. at 596, 82 S.Ct. 987. As was said in Mosher, supra, 357 F.2d at 641:

"Plaintiff fails to distinguish between civil rights and natural rights. His civil rights do not authorize the operation of a business within a municipality in violation of ordinances enacted under police power and for the welfare of the community. One has to read but little of the history of our civil rights legislation as well as constitutional amendments adopted to ascertain that our constitutional and statutory civil rights are for the protection of persons against discriminatory legislation or treatment. Here, there is no showing whatsoever of discriminatory treatment."

And as was said in Texas Co. v. City of Tampa, Fla., 100 F.2d 347, 348 (5th Cir. 1938):

"Moreover, the mere fact that only one party operating a business is affected by a regulation designed to localize the operation of such business in a certain district in the city does not show arbitrary and unreasonable or unjust discrimination in violation of organic rights."

Motion picture theaters, like filling stations (Texas Co., supra) and whiskey stores (Manor v. City of Bainbridge, 136 Ga. 777, 71 S.E. 1101 (1911)) are not immune from regulation under the police power. As was said in Chemline, Inc. v. City of Grand Prairie, 364 F.2d 721, 726 (5th Cir. 1966):

"the right to disseminate motion pictures is not absolute. It does not mean that any motion picture can be distributed at any time, at any place, and under any circumstances."

The plaintiff would seem to argue that First Amendment rights as they attach to commercial movies are so fundamental...