Genusa v. City of Peoria

Decision Date25 April 1980
Docket NumberNos. 79-1716,79-1717,s. 79-1716
Citation619 F.2d 1203
PartiesFrank GENUSA et al., Plaintiff-Appellants, Cross-Appellees, v. CITY OF PEORIA et al., Defendant-Appellees, Cross-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Adam Bourgeois, Chicago, Ill., for plaintiffs-appellants, cross-appellees.

Eric Margolis, Legal Dept., City of Peoria, Peoria, Ill., for defendants-appellees, cross-appellants.

Before TONE, WOOD and CUDAHY, Circuit Judges.

TONE, Circuit Judge.

The question in this case is whether a recently enacted "adult use" ordinance of the City of Peoria, Illinois, 1 places restrictions on the operation of adult bookstores that cannot be squared with the First Amendment as made applicable to the states by the Fourteenth Amendment. The Peoria ordinance, which is modeled in part on an ordinance of the City of Detroit that was held constitutional in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), places numerous zoning, licensing, and employee permit restrictions on the operation of adult bookstores and other adult entertainment establishments in Peoria. 2 Plaintiffs, who are owners of and employees in what are conceded to be "adult bookstores" within the meaning of the ordinance, challenge the ordinance only insofar as it seeks to regulate the operation of adult bookstores. 3 Accordingly, no issue is presented concerning the constitutionality of the ordinance as it applies to other types of adult use establishments.

I. Procedural History

Shortly after the filing of plaintiffs' verified complaint attacking the constitutionality of the ordinance, the court issued a temporary restraining order against enforcement of the ordinance and set plaintiffs' motion for preliminary injunction for early hearing. Both sides filed briefs and argued orally at the hearing, but no evidence was offered on either side. During the hearing the parties agreed that no facts were in dispute. The court therefore proceeded, without objection from the parties, to decide the case on the merits.

In their verified complaint, plaintiffs allege that the purpose of the ordinance was to eliminate the stores of the owner plaintiffs and other adult bookstores in Peoria because of the content of the books they sold, and that the ordinance "is having the desired effect." Given that the books in question have never been held obscene and are therefore entitled to First Amendment protection, admitting these allegations would amount to confessing judgment. Yet the defendants filed no answer and thus left the allegations technically admitted. The allegations have not been treated by the parties as admitted, however, either in the proceedings before the district court or in the briefs filed before us. The district court did not treat them as admitted. Under these circumstances, neither do we.

The court entered an order declaring portions of the ordinance dealing with adult bookstore licensing and employee permit requirements unconstitutional but upholding the validity of the zoning provisions in the ordinance. 475 F.Supp. 1199 (C.D.Ill.1979). A final judgment was entered enjoining enforcement of the offending parts of the ordinance. Plaintiffs have appealed from the judgment insofar as it upholds portions of the ordinance; defendants have cross-appealed from the judgment insofar as it invalidates portions of the ordinance.

II. Facts

The facts of record are as follows: There are at least three adult bookstores in Peoria, all of which were in operation at their present locations at the time the ordinance was adopted. 4 One is across the street from the federal courthouse. Two are on the other side of town. There is no evidence as to the proximity of these bookstores to one another, whether Peoria contains other adult use entertainment establishments, or, if so, where they are. Some plaintiffs have sought and obtained either licenses or permits under the ordinance, but at least one owner-plaintiff has not sought a license, and at least several employee-plaintiffs have not sought employee permits. Finally, defense counsel conceded in oral argument before this court that Peoria does not require that bookstores other than adult bookstores be licensed.

The ordinance contains the following preamble:

WHEREAS, adult book stores, cabarets, body shops, massage parlors and adult motion picture theaters, because of their very nature, are recognized as having serious, objectional (sic), operational characteristics, particularly when several of them are concentrated in certain areas thereby having a deleterious effect upon adjacent areas; and

WHEREAS, it is necessary that these businesses be regulated in such a manner as to prevent this concentration and the continued erosion of the character of the affected neighborhoods; and

WHEREAS, the City of Peoria desires to protect the youth of its community from objectional (sic) operational characteristics of such businesses by restricting their close proximity to places of worship, schools and residential areas;

NOW, THEREFORE, BE IT ORDAINED . . .. 5

III. Standing to Sue

Because plaintiffs attack a number of diverse provisions of the ordinance, 6 their standing to sue must be evaluated with respect to each specific challenge. Accordingly, standing is addressed in the discussion of each challenged provision.

IV. Definitional Provisions

Plaintiffs first attack the definition of "adult bookstore" in the ordinance on the ground that it is vague and overbroad. 7 Under Young v. American Mini Theatres, Inc., supra, 427 U.S. at 58-61, 96 S.Ct. at 2446, 2447, plaintiffs have no standing to litigate this issue.

As we earlier noted, plaintiffs acknowledged that their bookstores are within the scope of the definition of "adult bookstore" found in the ordinance. The definition is thus sufficiently precise to leave plaintiffs in no doubt about whether their actions are covered. Because of the importance of First Amendment rights, however, litigants seeking to assert such rights are sometimes granted standing to challenge vague or overbroad laws even though they themselves are not in doubt as to whether their conduct is covered and are not engaged in conduct that could not properly be made the object of the restriction the law seeks to impose. 8 This doctrine of standing to assert vicariously the First Amendment interests of others is not, however, without limits. As in every case, plaintiffs must have a direct stake in the outcome in order to satisfy Article III case or controversy requirements. In addition, Young makes plain that the doctrine of vicarious standing will not apply if the provision challenged is "readily subject to a narrowing construction by the state courts" and is not so vague or overbroad that there exists a "real and substantial" possibility that its "very existence . . . may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression." Young v. American Mini Theatres, Inc., supra, 427 U.S. at 60-61, 96 S.Ct. at 2447; see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973). We believe the definition in question is "readily subject to a narrowing construction." See Young v. American Mini Theatres, Inc., supra, 427 U.S. at 61, 96 S.Ct. at 2447. 9 The issue of whether the definition may have a "real and substantial" impact on the exercise of protected rights of expression was also settled by Young, in which similar definitions were held to pose no such threat. 10 Under Young, plaintiffs lack standing to attack the definition on either vagueness or overbreadth grounds.

V. Zoning Provisions

Plaintiffs next attack the zoning provisions in the ordinance on the ground that they constitute an invalid prior restraint on speech. The provisions in question require that an adult use, including an adult bookstore, shall not be located within 500 feet of an existing adult use; within 700 feet of any district zoned for low, medium, or high density residential use; within 500 feet of any pre-existing school or place of worship; or in a building containing an establishment that in any manner sells or dispenses alcoholic beverages. 11 Distances are to be measured in a straight line, without regard to intervening structures or objects, from the property line of the adult use, to the nearest property line of another adult use, school, place of worship or district zoned for residential use. 12

We first address the issue of plaintiffs' standing to attack these provisions. As an initial matter, plaintiffs are not subject to these restrictions, because, under the grandfather clause of the ordinance, 13 the bookstores which they own or in which they are employed may continue in their current locations so long as they are not converted into some other type of adult use. Plaintiff owners do not allege that they desire to move the location of their bookstores, to open new bookstores, or to convert their bookstores into some other form of adult use. The inapplicability of the zoning provisions to plaintiffs' bookstores does not, however, deprive plaintiffs of any personal stake in the outcome of a challenge to their validity. As is discussed in Part VI-A of this opinion, infra, plaintiff owners also contest, and have standing to contest, the validity of the ordinance's licensing requirement. 14 As we conclude in Part VI-A, the validity of the license requirement turns on the validity of the zoning provisions. If the licensing requirement is valid, the owners are required to obtain a license, for which they must pay a $100 license fee. They therefore have the requisite personal stake in the outcome of a challenge to the zoning provisions to meet standing requirements under Article III.

Although plaintiffs urge that the zoning provisions are...

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