Hart Book Stores, Inc. v. Edmisten

Decision Date04 December 1979
Docket NumberNos. 78-1461,78-1706,s. 78-1461
Citation612 F.2d 821
Parties5 Media L. Rep. 2377 HART BOOK STORES, INC.; Raleigh Books, Inc.; Tri-State News, Inc.; Ronald Mothershead, d/b/a R. and M. Adult Book Store; Jesse F. Frye, Jr., d/b/a L. & J. News Stand; Larry Gene Moore, d/b/a E. & M. EnterPrises; Thomas Page, d/b/a Player's Book Store; Joseph Raymond MC Broom, d/b/a M Distributors; Camera's Eye, Inc., a North Carolina Corporation, Appellees, v. Rufus EDMISTEN, Attorney General of North Carolina; Randolph Riley, DistrictAttorney for 10th Judicial District; E. Raymond Alexander, District Attorneyfor 18th Judicial District; Donald K. Tisdale, District Attorney for 21stJudicial District;Donald Jacobs, District Attorney for 8th Judicial District; Dan K. Edwards,District Attorney for 14th Judicial District; H. W. Zimmerman, DistrictAttorney for 22nd Judicial District; Donald Greene, District Attorney for 25thJudicial District;James C. Roberts, District Attorney for 19th Judicial District, W. A. Allen,Sheriff, Durham County, North Carolina; T. B. Seagroves, Chief of Police, Cityof Durham, North Carolina; The State of North Carolina; William H. Andrews,District Attorneyfor 4th Judicial District; William Allen Cobb, District Attorney for 5thJudicial District; Edward W. Grannis, Jr., District Attorney for 12th JudicialDistrict; Wade Barber, Jr., District Attorney for 15(b) Judicial District; C.D. Knight, Sheriff,Orange County, North Carolina; Herman Stone, Chief of Police, City of ChapelHill, North Carolina, Appellants. U. T. INCORPORATED, a Georgia Corporation, d/b/a Camera's Eye Bookstore; andMind's Eye, Inc., a North Carolina Corporation, d/b/a as Mind's Eye andImperial Book Store, Appellees, v. Rufus EDMISTEN, Attorney General of the State of North Carolina; Joseph Brown, District Attorney of the Twenty-Seventh Judicial District and Individually; C.C. Elmore, Chief of Police of City of Gastonia and Individually; PeterGilchrist,District Attorney for the Twenty-Sixth Judicial District and Individually;Donald Greene, District Attorney for
CourtU.S. Court of Appeals — Fourth Circuit

Arnold Loewy, Professor of Law, University of North Carolina, Chapel Hill, N. C. (Rufus L. Edmisten, Atty. Gen., Marvin Schiller, Asst. Atty. Gen., Raleigh, N. C., on brief), for appellants.

Michael K. Curtis, Greensboro, N. C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N. C., Thomas F. Loflin, III, Loflin, Loflin, Galloway, Leary & Acker, Durham, N. C., on brief), for appellees.

Before JEAN S. BREITENSTEIN, United States Circuit Judge for the Tenth Circuit, sitting by designation, and WIDENER and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

The issue on these consolidated appeals is the constitutionality of a North Carolina statute providing that a single building that contains an adult bookstore, adult theater, adult mini-theater, massage parlor, or sexual device wares cannot contain a second such "adult establishment." 1 Two federal district courts determined, in separate suits brought by the proprietors of affected establishments, that the statute abridged freedoms of speech and press protected by the First and Fourteenth Amendments, the requirement of equal protection imposed by the Fourteenth Amendment, the due process proscription against vagueness, and the right of privacy guaranteed by the Constitution. On the defendant's appeals, consolidated in this court, we conclude that the Supreme Court decision in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) essentially controls decision here and requires reversal. We do so, and sustain the statute over free speech and press, equal protection, vagueness and privacy objections.

The statute under attack prohibits the location of any one "adult establishment" in the same "building, premises, structure, or other facility" occupied by another adult establishment or sexual device vendor. N.C.Gen.Stat. § 14-202.11. "Adult establishment" is defined to include adult bookstores, adult motion picture theaters, and adult mini-theaters, having a "preponderance" of wares "distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas," and also to include massage businesses. Id. § 14-202.10. "Specified sexual activities" and "specified anatomical areas" are defined as sexually explicit or erotic things. Id. Violations are made misdemeanors, punishable by fines up to $500 and imprisonment up to six months. Id. § 14-202.12.

Civil actions challenging the statute in the Eastern and Western Districts of North Carolina requested injunctive and declaratory relief. The proprietor-plaintiffs alleged, and the district courts below found, that the statute limited plaintiffs' ability to choose the types of material to be sold or exhibited in their stores; that in order to avoid prosecution, the plaintiffs who sold both books and films emphasizing sexual matters were obliged to acquire a preponderance of non-sexually-oriented books in order to continue the exhibition of sexually-oriented films; and that all of them abandoned the sale of sexual devices in order to comply with the statute. The plaintiffs alleged that these changes increased the cost of doing business though none went so far as to contend that they had been forced to close their establishments or that their demise was imminent as a result of their compliance with the statute.

On the basis of these findings, one district court held in consolidated actions, Hart Book Stores, Inc. v. Edmisten, 450 F.Supp. 904 (E.D.N.C.1978), that the North Carolina statute violates the First Amendment and the equal protection guarantee of the Fourteenth Amendment, in that it allows, without sufficient justification, a "significant intrusion" into businesses dealing in materials protected by the First Amendment. Id. at 906. The court further concluded that Young v. American Mini-Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) did not apply because the North Carolina statute, unlike the ordinance upheld in Mini-Theatres, was not a true zoning law. 450 F.Supp. at 906-07.

In U. T. Inc. v. Edmisten, Nos. 77-365 and 77-366 (W.D.N.C. July 24, 1978), the other district court also found that the statute contravened freedom of speech and equal protection. Additionally, the latter court held the statute unconstitutionally vague and in violation of the right of privacy. Id., slip op. at 4-5. Finally, that court also concluded that Mini-Theatres did not control the case before it and was not inconsistent with its ruling. Id. at 6.

I

Unlike the district courts, we consider that the Supreme Court decision in Mini-Theatres, upholding a Detroit ordinance that prohibited locating "adult" establishments within one thousand feet of each other, essentially controls decision here. Since much of our analysis parallels and draws from the Mini-Theatres analysis, it seems appropriate at the outset to summarize the salient factual aspects of that case, comparing them with comparable aspects of the instant cases, and then to summarize what appear to us the critical features of that decision.

The Detroit ordinance prohibited "more than two (regulated) uses within one thousand feet of each other," Id. at 54 n.6, 96 S.Ct. at 2444 n.6, and defined regulated uses as adult bookstores, adult motion picture theaters, adult mini motion picture theaters, cabarets with nude or partially-nude entertainment, and also dance halls, bars, pool halls, public lodging facilities, secondhand stores, pawnshops, and shoeshine parlors, Id. at 52 n.3, 96 S.Ct. 2440. The ordinance defined adult bookstores, adult theaters, and adult mini-theaters as those "distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' " Id. at 53-54 n.5, 96 S.Ct. at 2444 n.5, and defined those sexually-explicit activities or areas in terms virtually identical to the North Carolina statute, Id. at 53 n.4, 96 S.Ct. 2440.

In addition to their similar terms and definitions, both the Detroit and North Carolina laws essentially regulate in similar fashion the place and manner of "adult establishment" operations. The fundamental effect sought by both is geographic dispersal of these operations, in an obvious attempt to reduce adverse external effects perceived to result from a concentration of "adult" activities. They differ only in the methods chosen to force dispersal: Detroit permits adult bookstores, theaters, and mini-theaters to operate only if they are at least 1,000 feet from any other adult establishments and other regulated uses, while North Carolina permits such adult bookstores, theaters, and mini-theaters to operate only if they are in a different building and on different premises from any one such adult establishment and other regulated uses (I. e., massage parlors or sexual device vendors).

Two other differences must be noted. The Detroit ordinance was an amendment to an existing "Anti-Skid Row Ordinance," adding adult establishments to a group of previously regulated uses. The Detroit ordinance did not affect existing establishments but only the location of new ones, while the North Carolina statute affects existing as well as future adult establishments, but allowed a six month grace period between the statute's passage and its effective date. While we do not consider these critically distinguishing, they deserve and are given specific attention in subsequent discussion.

The majority opinion in Mini-Theatres rejected arguments that the Detroit ordinance violated the First Amendment through prior restraint or vagueness, 427 U.S. at 58-63, 96 S.Ct. 2440, and then in a four-member plurality opinion, with the concurrence of a fifth justice in...

To continue reading

Request your trial
71 cases
  • Gold Diggers, LLC v. Town of Berlin, Conn., 06CV732.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 16, 2007
    ...or exhibition required, "unavoidable imprecision is not fatal and celestial precision is not necessary." Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 833 (4th Cir.1979). Plaintiffs' First Amendment right to present sexually explicit material does not merit a more precise clarification ......
  • 11126 BALTIMORE BLVD. v. Prince George's County, Civ. No. K-86-1411.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • April 15, 1988
    ...notice of facts must be deemed to run at least as wide as does judicial notice. Id. at 1169 n. 7.18 In Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980), Judge Phillips upheld a statute which required that a s......
  • Dumas v. City of Dallas, CA 3-86-1759-R.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • September 12, 1986
    ...The three-year amortization clause is also challenged. Such clauses, however, are uniformly upheld. See Hart Bookstores v. Edmisten, 612 F.2d 821, 830 (4th Cir.1979), cert. denied, 447 U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980) (upholding six-month amortization period); Northend Cinem......
  • Doctor John's, Inc. v. City of Roy, 04-4270.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 10, 2006
    ...contains the phrase `characterized by an emphasis on,'] shows that [it is] adequately precise.") (dicta); Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 833 (4th Cir.1979) ("distinguished or characterized by an emphasis on" sexual explicitness is "reasonably specific and precise"), 15192......
  • Request a trial to view additional results
1 books & journal articles
  • The Fordham Urban Law Journal: twenty years of progress.
    • United States
    • Fordham Urban Law Journal Vol. 30 No. 3, March 2003
    • March 1, 2003
    ...(2d Cir. 1980); 5 FORDHAM URB. L.J. 549 (1977) noted in 619 F.2d 623, 626 n. 12 (7th Cir. 1980); 5 FORDHAM URB. L.J. 455 (1977) noted in 612 F.2d 821,827 n.5 (4th Cir. 1979); 2 FORDHAM URB. L.J. 179 (1974) noted in 559 F.2d 921,923 n.9 (4th Cir. 1977); 2 FORDHAM URB. L.J. 163 (1973) noted i......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT