1568 MONTGOMERY HIGHWAY INC. v. CITY of HOOVER
| Decision Date | 05 March 2010 |
| Docket Number | 1070531. |
| Citation | 45 So.3d 319 |
| Parties | 1568 MONTGOMERY HIGHWAY, INC. v. CITY OF HOOVER, a municipal corporation. |
| Court | Alabama Supreme Court |
OPINION TEXT STARTS HERE
Amy L. Herring, Huntsville, for appellant.
Mark S. Boardman and Philip F. Hutcheson of Boardman, Carr, Hutcheson & Bennett, P.C., Chelsea, for appellee the City of Hoover.
Troy King, atty. gen., and Winfield J. Sinclair, asst. atty. gen., for appellee the Attorney General.
On Application for Rehearing
The opinion of September 11, 2009, is withdrawn, and the following opinion is substituted therefor.
The defendant, 1568 Montgomery Highway, Inc., d/b/a “Nancy's Nook,” “Nancy's Love Stuff,” and/or “Love Stuff” (hereinafter “Love Stuff”), appeals from the trial court's judgment upholding § 13A-12-200.2, Ala.Code 1975, against a constitutional challenge. We affirm.
On January 14, 2005, the City of Hoover (“Hoover”) sued Love Stuff in the Jefferson Circuit Court alleging that Love Stuff was an “adult-only enterprise” and that it had violated § 13A-12-200.5(4), Ala.Code 1975, a part of the Alabama Anti-Obscenity Enforcement Act, § 13A-12-200.1 et seq., Ala.Code 1975 (“the Act”), which had also been incorporated into the Hoover municipal code. Section 13A-12-200.5(4) provides:
Hoover further alleged that Love Stuff is located within 1,000 feet of 2 places of worship, a day-care center, 2 playgrounds, 50 private residences, and 3 apartment complexes. Hoover sought a judgment declaring that Love Stuff was operating an “adult-only enterprise” within the meaning of the Act and that Love Stuff had violated § 13A-12-200.5(4) and the Hoover municipal code. It further alleged that the operation of the business constitutes a nuisance, and it sought an abatement of the nuisance.
On March 4, 2005, Hoover amended its complaint to add a count seeking a judgment declaring that Hoover would be in violation of the law if it granted Love Stuff's pending request for a sign permit. Hoover alleged that, because Love Stuff was operating in violation of § 13A-12-200.5(4), “the issuance of a sign permit by [Hoover] for an unlawful business would be a violation of the law.”
On March 9, 2005, Love Stuff filed an answer and asserted certain affirmative defenses; it also filed a counterclaim. Love Stuff contended that the term “other form of adult-only enterprise,” as set out in § 13A-12-200.5(4), was not defined in the Act and that the term was unconstitutionally vague and overly broad under the Alabama and United States Constitutions. Love Stuff “on behalf of itself and its customers” alleged in its counterclaim that the statutory ban on the sale of sexual aids at § 13A-12-200.2(a)(1) through (3) was a violation of the Ninth Amendment to the United States Constitution and Art. I, § 36, of the Alabama Constitution of 1901. Love Stuff adopted by reference the challenge to § 13A-12-200.2(a)(1) that had been filed by the plaintiffs in the federal court in Williams v. Pryor, No. 98-S-1938-NE. 1 Love Stuff also sought to compel the issuance of a sign permit. The Alabama Attorney General was notified of the constitutional challenge to the Act.
On June 30, 2005, Love Stuff filed a motion for a summary judgment on its counterclaims, asserting that the phrase “other form of adult-only enterprise” was unconstitutionally vague and overly broad; that the ban on sexual aids in § 13A-12-200.2 was unconstitutional; and that Hoover should be compelled to issue the sign permit. Hoover and the attorney general filed briefs in opposition to the motion. On September 27, 2005, the trial court denied the motion. With regard to Love Stuff's constitutional challenge to § 13A-12-200.2, the trial court stated:
Following a bench trial, the trial court entered the following order on November 2, 2007:
“The trial of this case began on October 9, 2007, and continued for several days thereafter. The trial was on a non-jury basis, with the undersigned serving as the trier-of-fact. In that capacity, the undersigned had full opportunity to observe and gauge the credibility of those who testified. Many exhibits were admitted into evidence, moreover. Finally, the undersigned toured the premises of the business in question, accompanied by the court reporter, a videographer, and counsel for all parties. This order comes after consideration of all the evidence in this matter.
“Since late 2004, the defendant, 1568 Montgomery Hwy., Inc., has operated a store within the city limits of Hoover. The defendant's store is licensed as Nancy's Nook, but is known more colloquially by its product name of ‘Love Stuff.’ The target market for Love Stuff consists of females, ages 32-52.
“Initially, Love Stuff admitted only those having a valid identification showing they were at least 18 years of age into the store. At some point thereafter, Love Stuff changed its policy and began admitting all customers into the store premises, instead restricting access to only a particular room (referred to as ‘Area B’ during the trial of this case) to those at least 18 years old. In Area B are items that this Court has no trouble characterizing as hard-core, adult-only material to which no child should be exposed. Area B constitutes from 26% to 29% of the sales space in Love Stuff's premises. The items in Area B constitute anywhere from 32% to 36% of Love Stuff's inventory, depending on whether one uses an average cost or a retail value basis for this determination.
“Accessible to all customers are the other rooms in which footwear and clothing (such as costumes, lingerie, and hosiery) and dress accessories are sold, along with magazines and books with adult content, and various lubricants, massage oils, and lotions, among other items. There are some items outside Area B that this Court might characterize as adult-only. Most, if not all, of the books for sale are unquestionably adult-only, for example, although the books (and magazines) are shrink-wrapped and therefore incapable of being reviewed prior to purchase. During its tour, the Court occasionally wondered whether other items in Love Stuff's generally available displays weren't better suited in Area B. Because there is no claim here that Love Stuff is violating Ala.Code [1975,] § 13A-12-200.2 or § 13A-12-200.5(2), however, this observation is immaterial to the Court's adjudication of the merits, other than factoring into an analysis of what portion of the store's products is unsuitable for minors.
“It is undisputed that Love Stuff is within 1,000 feet of churches, playgrounds, a daycare center, and private residences. Its location raises the issue of whether Love Stuff stands in violation of Ala.Code § 13A-12-200.5(4), discussed below. The Court does note, however, that Love Stuff operates out of a stand-alone building located on U.S. Highway 31. It is not in a mall or shopping center, and its location is not conducive to pedestrian traffic. According to trial testimony, the only children who come in are typically infants or very small toddlers brought by their parents who want to shop. Other than that, the Court can envision curious teenagers driving to Love Stuff as a destination spot.
“During trial, the Court received, over the objections of the City of Hoover and the State of Alabama, the testimony of two expert witnesses called by Love Stuff, Dr. Rachel Maines and Dr. Theodore Cole. Dr. Maines testified concerning the history of various sexual devices, including the invention of certain devices by doctors in the 19th and early 20th centuries for use in treating diagnosed cases of hysteria in women. Dr. Cole, who until recently was licensed as a medical doctor, was allowed to testify concerning his work over many years with patients, both with and without disabilities, and the use of various sexual aids and devices in conjunction with conditions affecting healthy sexual functioning.
“At this juncture, it is necessary to address certain motions regarding these witnesses. The City of Hoover and the State first objected to the admission of their testimony on the grounds of relevance. That objection was overruled at trial because of possible relevancy to the defendant's counterclaims, one of which focuses on Ala.Code § 13A-12-200.2. The City of Hoover and the State subsequently objected to the admission of Dr. Cole's testimony because Dr. Cole was no longer a licensed doctor when he testified, having let his license lapse. The Court now overrules this objection, finding nothing outside the confines of medical malpractice litigation that would require a medical license in order for a physician to testify about his past experiences, and resulting expertise, as an expert under Rule 702 of the Alabama Rules of Evidence. In this regard, the Court finds that Ala.Code § 34-24-50, on which...
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