Nortown Theatre Incorporated v. Gribbs
| Decision Date | 22 March 1974 |
| Docket Number | Civ. A. No. 39796,40168 and 40198. |
| Citation | 373 F. Supp. 363 |
| Parties | NORTOWN THEATRE INCORPORATED, a body corporate of the State of Michigan, Petitioner, v. Roman GRIBBS, Mayor of the City of Detroit, et al., Defendants. VARIETY BOOKS, INCORPORATED, a Michigan corporation, Petitioner, v. Roman GRIBBS, Mayor of the City of Detroit, et al., Defendants. AMERICAN MINI THEATRES, INC., a Michigan corporation, and Pussy Cat Theatres of Michigan, Inc., a Michigan corporation, Plaintiffs, v. Roman GRIBBS, Mayor of the City of Detroit, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Ernest Goodman, Neal Bush, Detroit, Mich., for American Mini Theatres, Inc. and Pussy Cat Theatres of Mich.
Stephen M. Taylor, Detroit, Mich., for Nortown Theatre, Inc.
Bruce L. Randall, Southfield, Mich., for Variety Books, Inc.
Maureen P. Reilly, Asst. Corp. Counsel, Detroit, Mich., for Roman Gribbs et al.
Before KENNEDY* and GUBOW,** District Judges.
The three above-captioned civil actions present substantially identical challenges to the constitutionality of certain ordinances of the City of Detroit. For purposes of the motions for summary judgment filed in each case by the Defendants, the cases shall be treated together in this opinion.
American Mini Theaters, Inc., and Pussy Cat Theatres of Michigan, Plaintiffs in Civil Action No. 40198, are owners and lessees of a motion picture theatre in the City of Detroit which is devoted to the showing of so-called adult films from which minors are excluded. They have been denied a certificate of occupancy for their theatre by the City of Detroit, by reason of the provision of its Ordinances 742-G and 743-G.
Nortown Theatre, Inc., Plaintiff in Civil Action No. 39796, operates a movie theatre of the same character, also in the City of Detroit. It received a letter on March 9, 1973 from the Corporation Counsel of the City of Detroit advising that the theatre was in violation of provisions of the same Ordinances. The letter warned that, unless the theatre complied with the Ordinances, proceedings to enjoin its operation would be brought.
Variety Books, Inc., Plaintiff in Civil Action No. 40168, operates a retail bookstore in the City of Detroit which is devoted to the sale of so-called "adult books" to adult customers only. It has been denied a change in occupancy permit and has been threatened with legal proceedings to enjoin its operation by the City of Detroit by reason of the provisions of Ordinance 742-G.
The Plaintiffs in each case assert that these city Ordinances violate their Constitutional rights under the First and Fourteenth Amendments of the Federal Constitution because their language is so vague as to deny due process of law; because they fail to establish procedural safeguards; because they invade the area of protection guaranteed by the First Amendment; and because they deprive Plaintiffs of equal protection of the law afforded to other theatre operators and bookstores. Plaintiffs seek declaratory and injunctive relief.
Defendants have moved for summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure on the grounds that Plaintiffs' complaint fails to state a claim against Defendants upon which relief can be granted. An affidavit of Dr. Mel Ravitz, a sociologist at Wayne State University, located in Detroit, and a former member of the Common Council of the City of Detroit, was filed in support of the motions. Much of the information contained in the affidavit was presented to the Corporation Counsel of the City of Detroit for consideration by him and by the Common Council of the City of Detroit at the time the Ordinances were enacted. See Dr. Ravitz' letter of October 17, 1962 attached to Defendants' motions. The affidavit recites some sociological reasons for regulating the locations of businesses of the type operated by Plaintiffs.
Ordinances 742-G and 743-G regulate the location of certain types of businesses in the City of Detroit. These include three so-called adult businesses: adult bookstores, adult motion picture theatres (including adult mini motion picture theatres), and Group D cabarets (a cabaret which features topless dancers, et cetera). They also include establishments for the sale of beer and liquor, hotels, motels, pawnshops, pool or billiard halls, public lodging houses, secondhand stores, shoeshine parlors and taxi dance halls. The present Ordinances amend or replace earlier Ordinances regulating many of these same businesses, but not adult motion picture theatres or adult bookstores. The purpose of the Ordinances, as stated therein, is to ensure that the adverse effects of such businesses, particularly when several are concentrated in a certain area, will not contribute to the blighting or downgrading of surrounding neighborhoods (see prefatory language of Ordinance 742-G Section 66.0000). Before enacting these Ordinances, the Common Council had the expert opinion of Dr. Ravitz, referred to above, on the effect on neighborhoods of concentrations of businesses of the sort regulated. Their effect is deleterious, he stated. They attract the kinds of people who frequent these places and drive away those who do not. This contributes to the decline of a neighborhood. A concentration of such businesses also causes the neighborhood to appear to be declining and this causes a lack of neighborhood pride, resulting in a further decline. Nor is it possible to set aside certain areas where these business uses are to be concentrated, as is done with industrial uses, since the businesses, like other commercial uses, must have some proximity to residential areas and access to a suitable market.
The Ordinances provide two limitations on the location of any businesses of this character; i.e., the regulated uses. The Ordinances prohibit more than two such uses within 1000 feet of one another; and, in the case of adult theatres and adult bookstores, as well as Class D cabarets, prohibit their location within 500 feet of a residential dwelling or rooming unit. In the case of each of these restrictions, there is a provision for waiver. With respect to the 1000-foot requirement, the Ordinances provide:
The 500 feet from a residential dwelling or rooming unit prohibition may be waived:
. . . if the person applying for the waiver shall file with the City Plan Commission a petition which indicates approval of the proposed regulated use by 51 per cent of the persons owning, residing or doing business within a radius of 500 feet of the location of the proposed use, . . ..
The petitioner is required to attempt to contact all eligible locations within this 500-foot radius, and must maintain a list of all addresses at which no contact was made. The Commissioner of the Department of Buildings and Safety Engineering is authorized to adopt rules governing the procedure for securing petitions. The Ordinances define adult theatres on the basis of the type of films shown therein and adult bookstores on the basis of the type of books in their stock in trade.
Defendants assert that the Ordinances are not vague, that the classifications bear a rational relationship to a State objective and that there is a compelling State interest for enacting them.
The right of the City of Detroit to reasonably regulate and restrict the location of certain uses, whether business, residential or industrial, is clear; e.g., Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Plaintiffs concede this general proposition but assert that the Ordinances here, when applied to them, are invalid. Defendants' purpose in enacting them, say Plaintiffs, is not to protect neighborhoods from deleterious business but, rather, is for the purpose of preventing the showing of certain types of films and the sale of certain types of books. It is not for this Court to look behind the stated reasons for enacting the Ordinances. As the United States Supreme Court held in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1967):
When, as here, the City has stated a reason for adopting an ordinance which is a subject of legitimate concern, that statement of purpose is not subject to attack.
Nor may the Court substitute its judgment for that of the Common Council of the City of Detroit as to the...
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