Basiardanes v. City of Galveston
| Citation | 514 F. Supp. 975 |
| Decision Date | 13 May 1981 |
| Docket Number | Civ. A. No. G-78-205. |
| Parties | George BASIARDANES, Plaintiff, v. CITY OF GALVESTON, Defendant. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas |
Matthew Horowitz, Houston, Tex., for plaintiff.
Robert V. Shattuck, Jr., City Atty., and Joe Dale Morris, Denton, Tex., for defendant.
This is a case that once again brings a land-use zoning ordinance into confrontation with a first amendment free speech claim. The facts in brief are as follows: The plaintiff owned a building at Galveston, Texas and commercially utilized it as an amusement arcade until he decided to increase the income of the premises by converting a part of it into an adult theater for the regular exhibition of pornographic but non-obscene, and therefore, constitutionally protected moving pictures. Contemporaneous with the plaintiff's manifestation of that intention by the making of structural alterations to the building, accompanied by advertisements to let the public prepare for coming attractions, the City of Galveston through its alert City Council enacted an ordinance which established a moratorium on the issuance of the necessary building permit, and then moved with dispatch and enacted Ordinance 78-1,1 which amended the City's zoning ordinance to restrict the operation of adult theaters in certain defined areas which encompassed the plaintiff's property. The existence and threat of application of the ordinance discouraged the plaintiff from further developing and devoting the property to its highest and best commercial use, to-wit, a place for exhibiting strongly erotic but constitutionally shielded cinemagraphic productions. He felt this to be an unwarranted entrenchment upon his right of free speech and, after selling his property, brought the present action under 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution to recover money damages as measured by the loss of reasonably calculated rents and profits which an adult theater would have yielded.
The plaintiff brings forth the customary charges against the zoning amendment: that the definition of what constitutes an adult theater is vague; that the area zoned is too uncertain; that the prohibited area for the operation of adult theaters is so unreasonably restrictive as to assure that no such theaters can find a commercially viable location; and so the ordinance in purporting to regulate land-use in effect suppresses the flow of protected free speech. Plaintiff also contends that the licensing provisions of the ordinance constitute a prior restraint in violation of the first amendment and that the ordinance violates the equal protection clause of the fourteenth amendment.
The City of Galveston answers that the ordinance can stand upon its merits, and further that the plaintiff, by having sold the property in question and having none other in the zoned area, has lost standing to bring his complaint; and that much of the vagueness objection to the ordinance made by the plaintiff does not affect him nor operate to his detriment and consequently the plaintiff does not have standing to challenge such parts of the ordinance.
The claims of the parties will be briefly discussed.
The Court has jurisdiction over the subject matter and the parties pursuant to 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3).
The plaintiff has heretofore divested himself of all property interest in the zoned area. Nonetheless, he claims, and it is an undisputed fact, that he owned property some nine months in the zone-affected area; that he took steps to convert a part of his building into a theater to exhibit commercially and regularly adult films as that term is defined in the ordinance; that the threat of the ordinance caused him to cease the structural work on the building and to terminate lease negotiations with a firm that was eager to locate an adult theater in Galveston and found his building desirable for that purpose.
Plaintiff asserts standing on several grounds. First, he claims that he has standing to attack the statute on its face because the statutory definitions are vague in violation of the first and fourteenth amendments and because the licensing provisions of the statute constitute a prior restraint in violation of the first amendment. Second, he alleges the statute violates the due process requirements of the fourteenth amendment because the ordinance is vague as applied to him. Third, he alleges that he has suffered injury in fact in that the zoning provisions have a significant impact on his first amendment rights to disseminate and receive protected speech. Although the plaintiff has standing to challenge the ordinance's zoning provisions as it operated against his property interest, he does not have standing to call into account the licensing or definitional aspects of the statute.
To the extent that plaintiff attacks the definition of "Adult Motion Picture Theater" in section 51 of the ordinance as vague, facially, or as applied to him, plaintiff has no standing to litigate the issue.2 Plaintiff acknowledges that his property was within the scope of the definition found in the ordinance. The definition is thus sufficiently precise to leave plaintiff in no doubt about whether his actions are covered.
Because the ordinance affects communication protected by the first amendment, plaintiff argues that he may raise the vagueness issue even though there is no uncertainty about the impact of the ordinance on his own rights. The Court does not agree.
Under exceptional circumstances, a person to whom an ordinance may constitutionally be applied will be allowed standing to challenge the ordinance on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A litigant may be allowed to assert the rights of third parties under a claim that the ordinance is facially vague if the statute's deterrent effect on legitimate expression is both real and substantial and if the statute is not readily subject to a narrowing construction by the state courts.3
The Court is not persuaded that the Galveston zoning ordinance will have a significant deterrent effect on the exhibition of films protected by the first amendment. To the extent that any question exists as to the application of the statute, the ordinance is readily subject to a narrowing construction by the state courts.4 Therefore, plaintiff has no standing to challenge the statute as facially vague.
Additionally, plaintiff has no standing to attack the licensing provisions of the ordinance. Plaintiff has no stake in the outcome of a determination of the validity of the licensing provisions. Under no circumstances has plaintiff been, or will plaintiff be, affected by this aspect of the ordinance.5
Insofar as plaintiff claims injury in fact, the Court notes that the record is thin and equivocal with respect to plaintiff's damages. However, the plaintiff's claim of damages is sufficient to show that he had a monetary concern with the validity and operation of the ordinance, and not just a quixotic and pecuniarily impersonal solicitude for the constitutional rights of his fellow art exhibitors.6 In short, the plaintiff has alleged a violated right and claims damages distinctive to him flowing therefrom. He has shown standing to sue.7
In summary, although the plaintiff has standing to challenge the ordinance as it operated against his property interest, he does not have standing to call to account and have adjudicated those portions of the ordinance that are not germane to his situation. The focus will therefore be on the terms of the ordinance that are operative to claims asserted by the plaintiff and which bear upon his property. The portions of the ordinance that fall outside that focus will not be examined.8
Even if plaintiff was granted standing to raise the vagueness issue, the ordinance would withstand such a challenge.
The ordinance defines adult motion picture theaters in section (51) as follows:
Adult Motion Picture Theater: Any premises from which, under the laws of the State of Texas, minors are excluded by virtue of age unless accompanied by a consenting parent, guardian or spouse, and in which motion pictures, slides, or similar photographic reproductions are shown as the principal use of the premises or are shown as an adjunct to some other business activity which is conducted on the premises and constitutes a major attraction; and wherein such movies are shown on a regular basis; and not to include school or public auditoriums used for non-commercial purposes on an infrequent basis.
Section 43.24 of the Texas Penal Code which is incorporated into the ordinance prohibits exhibition of certain "harmful material" to persons under 17 years of age, and defines "harmful material" as material whose dominant theme, taken as a whole:
Tex.Penal Code Ann. § 43.24(a) (Vernon 1974).9
The plaintiff claims that the above is a fog of vague verbiage and that he who speaks such words cannot be sure of what he has said and that their fluid meaning (like beauty to the eye of the beholder) lies only in the ear of the hearer.10 It may be so. There is no novelty in noting that words do not have mathematical exactitude, but the law must do as best it can with irreduciable linguistic imprecision until there is discovered a way to package all passions and concepts into manageable mathematical notations.11
When a statute or regulation is challenged under the due process doctrine of vagueness, a court must look at the enactment from two angles: (1) whether it...
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Basiardanes v. City of Galveston
...Basiardanes lacked standing to challenge certain provisions of the ordinance and upheld the others against constitutional attack. 514 F.Supp. 975 (S.D.Tex.1981). Specifically, the district court held that the ordinance did not constitute a prior restraint even though it excluded adult theat......