American Mini Theatres, Inc. v. Gribbs
| Decision Date | 16 June 1975 |
| Docket Number | Nos. 74-2129,74-2303,s. 74-2129 |
| Parties | AMERICAN MINI THEATRES, INC., a Michigan Corporation, and Pussycat Theatres of Michigan, a Michigan Corporation, Plaintiffs-Appellants, v. Roman GRIBBS, Mayor of the City of Detroit, et al., Defendants-Appellees. NORTOWN THEATRE INC., Plaintiff-Appellant, v. Roman GRIBBS, Mayor of the City of Detroit, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Stephen M. Taylor, Taylor & Rubin, Detroit, Mich., for plaintiffs-appellants.
Maureen P. Reilly, Michael M. Glusac, Detroit Corp. Counsel, Elliott S. Hall, John E. Cross, John F. Hathaway, Asst Corp. Counsels, Detroit, Mich., for defendants-appellees.
Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
This case deals with a city zoning ordinance which classifies and regulates "adult" movie theatres and bookstores solely on the basis of the content of the materials which they purvey. Except for one feature the zoning ordinance and a related code amendment were held valid by the district court as against charges that they violate the First and Fourteenth Amendments to the Constitution. We reverse.
In 1962 the City of Detroit adopted an Official Zoning Ordinance which contained a finding that concentrations of certain types of businesses tended to have a deleterious effect upon the neighborhoods in which such concentrations took place. By section 66.0000 of that ordinance it was provided that not more than one of any such businesses might be placed within 1,000 feet of any other business establishment of a kind listed in the section. The businesses thus regulated were bars, transient hotels, poolrooms and similar establishments found in "skid row" areas of many cities. Whereas the purpose of most zoning ordinances is to establish separate zones for various uses and to confine such uses to those zones, thus segregating specified uses of land from each other and concentrating each use or class of uses into defined zones, Detroit adopted the theory of "inverse zoning" by which certain land uses were prohibited from concentrating and were required to maintain minimum distances from each other. Of course, all of the uses thus regulated were also subject to the general zoning features of the ordinance which limited them to commercial and industrial zones.
Prior to 1972 the authorities noted the emergence of clusters of "adult" movie theatres and bookstores together with topless bars and "go go" establishments in certain areas of the City. In an attempt to control these concentrations of adult-type entertainment, the City adopted a series of amendments to the Official Zoning Ordinance and the City Code by ordinance 742-G and 743-G, both of which were made effective November 2, 1972. Ordinance 742-G, inter alia, added new sections 32.0007, 66.0000 and 66.0103, which are reproduced in part as follows:
Section 32.0007 Adult:
Adult Book Store
An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas," (as defined below), or an establishment with a segment or section devoted to the sale or display of such material.
An enclosed building with a capacity of 50 or more persons used for presenting material having as a dom-(sic) presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas", (as defined below) for observation by patrons therein.
An enclosed building with a capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas", (as defined below), for observation by patrons therein.
For the purposes of this Section, "Specified Sexual Activities" is defined as:
1. Human Genitals in a state of sexual stimulation or arousal;
2. Acts of human masturbation, sexual intercourse or sodomy 3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.
And "Specified Anatomical Areas" is defined as:
1. Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and
2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
Section 32.0023 Cabaret.
A cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.
66.0000 Regulated Uses
In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this section. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area (i. e. not more than two such uses within one thousand feet of each other which would create such adverse effects). Uses subject to these controls are as follows:
Adult
Adult Book Store Adult Motion Picture Theater Adult Mini Motion Picture Theater
Establishment for the sale of beer or intoxicating liquor for consumption on the premises.
Hotels or motels Pawnshops
Pool or billiard halls
Public lodging houses
Secondhand stores
Shoeshine parlors
Taxi dance halls
It shall be unlawful to hereafter establish any Adult Book Store, Adult Motion Picture Theater, Adult Mini Theater or Class "D" Cabaret within 500 feet of any building containing a residential, dwelling or rooming unit. This prohibition may be waived if the person applying for the waiver shall file with the City Plan Commission a petition which indicates approval of the proposed regulated use by 51 per cent of the persons owning, residing or doing business within a radius of 500 feet of the location of the proposed use, the petitioner shall attempt to contact all eligible locations within this radius, and must maintain a list of all addresses at which no contact was made.
Ordinance 743-G, an amendment to the Code of the City of Detroit, provides in part:
It shall be unlawful for any person to hereafter operate an Adult Motion Picture Theater, Adult Mini Motion Picture Theater or Drive-in Theater until he shall have complied with the requirements of the Official Zoning Ordinance, the provisions of this article and other applicable ordinances of the City of Detroit.
This ordinance contains definitions of adult motion picture theatre, by reference to "Specified Sexual Activities" or "Specified Anatomical Areas," using the same language as contained in ordinance 742-G. In addition to specifying the license fees for each of the defined establishments, the ordinance contains the following provision:
The Mayor may refuse to issue a license for the operation of any business regulated by this article, and may revoke any license already issued upon proof submitted to him of the violation by an applicant, or licensee, his agent or employee, within the preceding two years, of any criminal statute of the State, or of any ordinance of this city regulating, controlling or in any way relating to the construction, use or operation of any of the establishments included in this article which evidences a flagrant disregard for the safety or welfare of either the patrons, employees, or persons residing or doing business nearby.
The plaintiffs-appellants are lessees and operators of "adult" motion picture theatres in the City of Detroit which are directly affected by the two ordinances in question.
The Supreme Court held in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), that zoning ordinances which classify property by the uses to which it is put and regulate such uses are a proper exercise of the police power. Noting the shift of population in this country to the cities, the Court reasoned that problems connected with police and fire protection, sanitation disposal and other traditional municipal services could be reduced by requiring that various areas of a city be set aside for certain uses and that incompatible uses be prohibited therein. The Euclid zoning ordinance was claimed to be an unreasonable and confiscatory regulation in the guise of exercise of the police power, but the Court held that such laws result from a legitimate exercise of the police power in furtherance of the general welfare and that the legislative judgment must control in setting the classifications and defining the zones. Id. at 388, 47 S.Ct. 114. More recently in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the Supreme Court upheld the validity of a zoning provision which limited a residential area to one-family dwellings and defined the word "family" as Id. at 2, 94 S.Ct. at 1538. The Court found that the ordinance affected no fundamental rights guaranteed by the...
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