682 F.2d 1203 (5th Cir. 1982), 81-2239, Basiardanes v. City of Galveston

Docket Nº:81-2239.
Citation:682 F.2d 1203
Party Name:George BASIARDANES, Plaintiff-Appellant, v. CITY OF GALVESTON, Defendant-Appellee.
Case Date:August 19, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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682 F.2d 1203 (5th Cir. 1982)

George BASIARDANES, Plaintiff-Appellant,

v.

CITY OF GALVESTON, Defendant-Appellee.

No. 81-2239.

United States Court of Appeals, Fifth Circuit

August 19, 1982

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        Matthew Horowitz, Univ. of Conn. School of Law, Hartford, Conn., for plaintiff-appellant.

        Robert V. Shattuck, Jr., City Atty., Galveston, Tex., for defendant-appellee.

        Appeal from the United States District Court for the Southern District of Texas.

        Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

        JERRE S. WILLIAMS, Circuit Judge:

        This case presents a First Amendment and Due Process challenge to a zoning ordinance that is so broad it effectively bans the showing of nonobscene but sexually oriented motion pictures at adult theaters within the City of Galveston. George Basiardanes, a property owner in Galveston, leased his building for the showing of adult films. Galveston then passed a zoning ordinance that prohibited Basiardanes from using his building for this purpose. After the Galveston adult theater ordinance frustrated his plans to house an adult theater in his building, Basiardanes brought this suit, claiming that the ordinance had the effect

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of zoning adult theaters out of the city and thereby constituted a prior restraint of protected speech. Basiardanes also challenged the ordinance on vagueness grounds.

        The district court held that 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 theaters, as defined in the ordinance, from 85% of Galveston and perhaps from all practicable locations in the City. Basiardanes appeals from this judgment. Finding that the ordinance does infringe protected speech and that the district court erred in its denial of standing on one issue although it was correct on others, we reverse in part and remand.

       I. The Zoning Ordinance

        The City of Galveston lies on an island on the Gulf Coast of Texas. Sixty thousand people have chosen to make their homes in Galveston, the area of which is approximately 52 square miles. The City is a popular resort and enjoys a large volume of tourist traffic especially during the warmer months.

        In 1970, George Basiardanes acquired a three-story building in the downtown Galveston business district. Initially, he opened a sandwich shop and pool hall on the ground floor, and rented out the rooms on the upper two floors to individual tenants. During the 1970s, however, Galveston's downtown business district suffered the decline that has afflicted many American cities. Because fewer and fewer people came downtown, the pool hall's business dropped off. In 1977, Basiardanes decided to sell his building, or, failing a buyer, lease it to a business tenant.

        Basiardanes' leasing efforts evoked a response from a movie concern called Universal Amusements Company. Universal Amusements entered into an oral contract with Basiardanes to lease part of the ground floor to show nonobscene adult motion pictures. Basiardanes agreed to remodel the building for that purpose. To herald the arrival of his new tenant, Basiardanes put a sign on the building reading "Adult Theater."

        Basiardanes' enthusiasm for his new venture was not shared by Galveston city officials. The proposed theater lay across the street from a major renovation of the City's Grand Opera House. The city government feared that the presence of an adult theater so close to the opera house would deter families from patronizing the historic opera house and thereby impede the upgrading of the area. Moreover, the City apparently believed that a nexus existed between adult theaters and crime. Downtown adult theaters, according to the City, threatened its effort to reduce the crime rate in that area. Thus, when Galveston got wind of Basiardanes' plans, the city government quickly moved to block the opening of an adult theater in Basiardanes' building.

        The City's first action was to pass a moratorium on downtown building permits. The moratorium thwarted Basiardanes' efforts to convert the ground floor of his building to a theater. Shortly after the moratorium was passed, the City erected an even higher barrier to Basiardanes' plan to open an adult theater. The City passed Ordinance 78-1, which comprehensively regulates the location of adult theaters and adult bookstores. 1 That ordinance is the subject of this suit.

        The ordinance keys its definition of adult motion picture theaters to Texas law. Under the ordinance, an adult motion picture theater is one "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." 2

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The ordinance applies to all theaters that regularly show movies that Texas prohibits minors from viewing without parental permission. It is not limited to theaters that show obscene movies or even blatantly sexual but nonobscene movies.

        Ordinance 78-1 restricts adult movie theaters to areas zoned for three uses: central business, light industry, and heavy industry. Residential areas are off-limits altogether. Within the business and industrial areas, the ordinance disperses adult theaters in three ways. First, a theater must be more than 500 feet from an area zoned residential, or from any two, or any combination of two, "pool halls, liquor stores, or bars." Second, an adult theater must be more than 1,000 feet from another adult theater or adult bookstore. Third, an adult theater must be more than 1,000 feet from any "church, school, public park, or recreational facility where minors congregate."

        These dispersal requirements result in excluding adult theaters from 80% to 90% of the three areas from which they are not flatly banned, including all of the central business district. The only conceivable remaining locations are in the areas zoned for light and heavy industry. The industrial zones, however, are largely a patchwork of swamps, warehouses, and railroad tracks. They also lack access roads and retail establishments.

        Further, even for those locations not barred by the dispersal requirements, a special permit must be obtained to show adult films. Under the ordinance, the City may grant a permit only if it finds: (1) that the theater is not contrary to the public interest or injurious to adjacent properties, (2) that the theater will not enlarge or promote a "skid row" area, (3) that the theater will not interfere with a neighborhood conservation or revitalization program, and (4) that all zoning laws will be observed.

        The ordinance also regulates the on-site advertising of adult theaters. The ordinance prohibits any advertising or displays for an adult bookstore or theater that are visible to the public from any street, sidewalk, or other public place. No other commercial establishments are similarly regulated.

        Basiardanes had been forced to discontinue renovation of his building when the City first passed the building-permit moratorium. Simultaneously, the City had pressured Basiardanes to remove his sign announcing the imminent arrival of adult movies to his premises. Ordinance 78-1 then dealt a fatal blow to Basiardanes' plans for presenting adult entertainment in Galveston. Deprived of the revenues from his lease, Basiardanes contracted to sell his building and brought suit for an injunction and damages against the City under 42 U.S.C. § 1983 claiming a violation of his rights under the First and Fourteenth Amendments. After a trial, the district court upheld the constitutionality of Ordinance 78-1 insofar as Basiardanes was held to have standing to question its validity.

       II. Vagueness

        Basiardanes challenges several portions of Ordinance 78-1 for vagueness. The ordinance regulates "adult theaters." Basiardanes contends that the term "adult theater" is unduly imprecise because the definition applies to theaters showing adult films "on a regular basis" but fails to define "regular basis." He also finds imprecision in an exception from the definition of adult theater for "schools" and "public auditoriums." In addition, the dispersal sections of Ordinance 78-1 contain several terms that Basiardanes finds vague. Adult theaters may not be located within specified distances of churches, schools, parks, "recreational facilities where youths congregate," bars, or other adult theaters. Basiardanes contends that each of these words has uncertain meaning.

        Laws that are unconstitutionally vague fall because persons who must conform

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their conduct to the law are entitled to fair notice of what is permitted and proscribed. Village of Hoffman Estates v. Flipside, Hoffman Estates, --- U.S. ----, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972); Fernandes v. Limmer, 663 F.2d 619, 635 (5th Cir. 1981). Fair notice protects those who might otherwise stray into the regulated area, prescribes standards for law enforcers, and preserves legitimate activity against the chill that flows from a law of uncertain scope. Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99.

        Basiardanes challenges the Galveston ordinance as vague on its face. A law is facially vague if its terms are so loose and obscure that they cannot be clearly applied in any context. Such a "law is incapable of any valid application," Steffel v. Thompson, 415 U.S. 452...

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