East Brooks Books Inc. v. City of Memphis

Decision Date24 February 2011
Docket NumberNo. 09–6254.,09–6254.
Citation633 F.3d 459
PartiesEAST BROOKS BOOKS, INC., dba Getwell Bookmart; Airport Adult Theater; Pete Patel; Lisa Wright; Stacy Collins; Betty Powers, Plaintiffs,Steve C. Cooper; Southern Entertainment Management Co., Inc., dba Club Tiffany, Plaintiffs–Appellants,v.CITY OF MEMPHIS; W.W. Herenton; Melvin Burgess, Defendants–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED: J. Michael Murray, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellants. Thomas Roane Waring III, City Attorney's Office, Memphis, Tennessee, for Appellees. ON BRIEF: J. Michael Murray, Raymond V. Vasvari, Jr., Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellants. Thomas Roane Waring III, City Attorney's Office, Memphis, Tennessee, for Appellees.Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.CLAY, J., delivered the opinion of the court, in which KENNEDY, J., joined. KETHLEDGE, J. (p. 468–69), delivered a separate opinion concurring in part and concurring in the judgment.

OPINION

CLAY, Circuit Judge.

Plaintiffs Steve C. Cooper and Southern Entertainment Management Company, Inc., appeal the denial of their motion for relief of judgment pursuant to Federal Civil Procedure Rules 60(b)(5) and (6). At issue is a 1996 consent judgment declaring unconstitutional a 1991 city ordinance intended to regulate sexually-oriented businesses in Memphis, Tennessee.

For the reasons set forth below, we AFFIRM the decision of the district court.

BACKGROUND
I. The 1991 Memphis Ordinance

In January of 1991, the City of Memphis (“Memphis” or the “City”) promulgated an ordinance (the “Memphis Ordinance”) that was intended to impose a licensing scheme on sexually-oriented businesses within Memphis.1 Memphis, Tenn., Code § 6–72. The primary aim of the Memphis Ordinance was “to establish reasonable and uniform regulations to prevent the continued concentrations of sexually oriented businesses within the city.” Id. § 6–72–1. On a more general level, the intent of the Memphis Ordinance was to “promote the health, safety, morals and general welfare of the citizens of the city.” Id. The City was concerned about these adult businesses because it found that, especially in concentration, they caused serious secondary effects, including increased crime and neighborhood deterioration. East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 222 (6th Cir.1995).

The Memphis Ordinance contained several components. Centrally, it required adult business operators and employees to obtain permits before conducting adult business and it set forth the application requirements and time lines for obtaining those permits. The Memphis Ordinance outlined certain offenses and application deficiencies that would disqualify a person from receiving a permit and certain infractions that would be cause for the Director of Police Services (“Director”) to either suspend or revoke a permit. The cost of the permit was initially set at $5,000 per business and $15 per employee.

If an adult business was owned or operated by a company, the Memphis Ordinance required each person with an interest in the business, no matter how small, to meet the permit requirements and be disclosed on an application.

The procedure for an adult business to appeal a denial, suspension or revocation of a permit was set out as follows: the applicant had ten days to file the appeal with the Director. The Director was required to schedule a hearing on the appeal within sixty days of filing. After the hearing, the Director was required to issue a decision within five days. During the foregoing period, the adult business would be allowed to continue to operate (absent certain exceptional circumstances). If the Director denied the appeal, then the applicant had the opportunity to appeal the decision, within thirty days, by petitioning a court of competent jurisdiction for a common law writ of certiorari. During the court appeal, the City was allowed to suspend operation of the business.

In addition, the Memphis Ordinance forbid certain types of acts and performances within adult establishments. It also subjected the businesses to periodic inspection by city agencies including the police and the health department. Furthermore, the Memphis Ordinance created zoning limitations for adult businesses, which limited their concentration and proximity to certain residential, cultural and social institutions. Notably, it did not ban the sale of beer at adult establishments.

II. The 1996 Consent Judgment

Plaintiffs Steve C. Cooper, et al. (Cooper) operate adult businesses that would be regulated under the Memphis Ordinance. In November 1990, Cooper brought suit against the City in the United States District Court for the Western District of Tennessee, facially challenging the constitutionality of the Memphis Ordinance. See East Brooks Books, 48 F.3d 220.2 Cooper claimed that the Memphis Ordinance constituted an impermissible prior restraint on speech under the First Amendment.

On appeal, this Court held that: 1) the Memphis Ordinance failed to provide a method for prompt judicial review of adverse decisions, as required by the First Amendment; 2) the “shareholder disclosure” provision requiring applications for all people having an interest in an adult business was overly broad; 3) a provision under which a permit could be denied or suspended based on the Director's determination that a business was not operating in a “peaceful and law-abiding manner” was impermissibly vague; 4) the license fee was excessive; and 5) that the ordinance's amortization schedule violated both Tennessee state and local law. East Brooks Books, 48 F.3d at 224–28.

On October 21, 1996, the parties entered into a consent judgment, agreeing to adopt the decision of this Court as the final ruling and judgment as to the constitutionality of the Memphis Ordinance. As a result, though the Memphis Ordinance was never repealed, it was never enforced within Memphis and no adult establishment was ever required to apply for a permit. See Entm't Prods., Inc. v. Shelby Cnty., 545 F.Supp.2d 734, 751 (W.D.Tenn.2008).

III. The 2007 Shelby County Ordinance

On September 10, 2007, Shelby County adopted the Tennessee Adult–Oriented Establishment Registration Act of 1998 (the Act), Tenn.Code Ann. §§ 7–51–1101 et seq. , through the promulgation of Ordinance 344 (the County Ordinance). Shelby Cnty., Tenn., Ordinance 344. Broadly, the Act sets forth the following requirements:

It requires an adult-oriented establishment to obtain a license from the county's adult-oriented establishment board in order to operate. It further requires that all entertainers, employees, and escorts employed by such an establishment obtain a work permit from the county. The Act also imposes several regulations, including a prohibition against the serving or consuming of alcohol on the premises; a ban on the touching or the exposing of certain parts of the body; and a requirement that all performances occur on an 18–inch high stage and be at least six feet from any other entertainer, employee, or customer.

Am. Show Bar Series, Inc. v. Sullivan Cnty., 30 S.W.3d 324, 331 (Tenn.Ct.App.2000) (citations omitted).

Under the Act, a license or permit applicant must provide general information concerning his identity and proof of age, and must pay an annual operating license fee of $500 or a work permit fee of $100. For corporate applicants, the application must specify “the names and addresses of the officers and directors of the corporation, and the names and addresses of any persons holding fifty percent (50%) or more of the stock in the corporation.” Tenn.Code Ann. § 7–51–1105(7)(A). The Act outlines additional requirements for licensing, creates disqualifying factors for permits and licenses, establishes an appeal procedure for denial of a permit or license, and requires inspection of adult establishments by various county agencies.

The County Ordinance took effect on January 1, 2008 and was subject to enforcement as of April 30, 2008. Enforcement of the County Ordinance in Memphis was limited only by the Act's preemption clause, which specifies that, “if a city or other political subdivision in this state chooses to enact and enforce its own regulatory scheme for adult-oriented establishments and sexually-oriented businesses, then the provisions of this part shall not apply within the jurisdiction of such city or other political subdivision.” Id. § 7–51–1121(b) (emphasis added).

IV. Motion for Relief of Judgment

On October 9, 2008, Cooper filed a Motion for Relief of Judgment pursuant to Federal Rules of Civil Procedure 60(b)(5) and (6). Cooper argues that, due to intervening changes in statutory and decisional law, the Memphis Ordinance no longer suffers from the constitutional defects that caused this Court to invalidate it and the parties should therefore be relieved of the judgment.

On September 28, 2009, the district court denied the motion. The district court held that, while the unconstitutionality of the provision in the Memphis Ordinance regarding judicial review had been rectified by intervening changes in the law, the ordinance still suffered from several defects which left it unconstitutional. The court further found that, while it might be possible to sever the provisions in the Memphis Ordinance regarding amortization and peaceful operation, it was not possible to sever the “shareholder disclosure” provision. The court also noted that the equities would not be served by granting the motion for relief, because Cooper failed to present any inequities in the status quo or any “public interest at stake ... [but has] instead advanced a private business interest,” to wit, to be governed by the less strict guidelines of the Memphis Ordinance instead of the more restrictive County Ordinance.

Cooper then filed this timely appeal and we now affirm the denial of his motion for relief.

DISCU...

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