Atm Exp., Inc. v. City of Montgomery, Alabama

Decision Date08 July 2005
Docket NumberNo. CIV.A. 2:04CV0990-M (WO).,CIV.A. 2:04CV0990-M (WO).
Citation376 F.Supp.2d 1310
PartiesATM EXPRESS, INC., Plaintiff, v. CITY OF MONTGOMERY, ALABAMA, a political subdivision of the State of Alabama, Defendant.
CourtU.S. District Court — Middle District of Alabama

Donald Mayer Briskman, Briskman & Binion, PC, Mobile, AL, Gary Scott Edinger, Gainesville, FL, for Plaintiff.

Walter R. Byars, Steiner Crum & Baker, Kimberly Owen Fehl, City of Montgomery, Montgomery, AL, for Defendant.


MCPHERSON, United States Magistrate Judge.

In this civil action, the plaintiff, ATM EXPRESS, INC. ["ATM"], challenges the constitutionality of the business licensing ordinance enforced by the City of Montgomery, Alabama ["City"] on its face and as applied. ATM invokes this court's jurisdiction pursuant to 28 U.S.C. §§ 1331,1 1343(4),2 2201,3 and 2202; it seeks declaratory and injunctive relief, damages, attorney fees and other supplemental relief because of the City's denial of a business license to operate an adult bookstore and videostore in Montgomery.

This suit is brought pursuant to 42 U.S.C. § 1983, in support of ATM's claims that the City's denial of a business license to operate the store violates its rights under the First and Fourteenth Amendments to the United States Constitution. ATM's challenge is two-fold: It attacks the ordinance on its face, alleging that the municipal statute "is a mode of censorship, regulation and control of certain specific kinds of speech" (Doc. # 1). It further alleges that, because the City exacts requirements from license applicants for "adult" businesses that are not required of "mainstream (non-adult) video stores", the ordinance is also unconstitutional as applied.

The issues are currently before the court on the following motions:

1. ATM's Motion For Partial Summary Judgment, filed on 1 December 2004

(Doc. # 20);4 and

2. The City's Motion for Summary Judgment, filed on 3 December 2004 (Doc. # 23).5

For the reasons set forth in this Memorandum, the court concludes that ATM's Motion For Partial Summary Judgment should be granted in part and denied in part, and the City's Motion For Summary Judgment should be denied.


Pursuant to the court's order, the parties submitted a Joint Statement of Stipulated Facts on 1 December 2004 (Doc. # 19).

ATM's store, known as "X-Mart Adult Supercenter", is located on the Birmingham highway in Montgomery. ATM wishes to sell "videotapes and DVD's which feature adults engaged in various explicit sexual activities," as well as "magazines which include similar content". ATM also plans to sell "a variety of lingerie, `adult novelties', `marital aids' and other products of interest to adults" (Doc. # 1, Doc. # 19, ¶¶ 3, 4). The store would have been the third of its kind in Montgomery (Doc. # 19, ¶ 10), but ATM does not operate the other stores.

On 23 September 2004, ATM applied for a standard business license but was told by the city's Director of Finance ["Director"],6 who administers Montgomery's business license regulations, that the application could not be processed until ATM's principal consented to a criminal background check (Doc. # 19, ¶ 23). The Director also required ATM to describe whether the content of the material to be leased and sold would be considered "hard core" or "soft core" pornography (Doc. # 19, ¶ 23). ATM's legal counsel drafted a letter to the Director objecting to the additional requirements on First Amendment grounds (Doc. # 19, ¶ 26; Doc. # 1, Pl's. Ex. A). ATM opened its store for business without having complied with the additional requests or obtained a business license (Doc. # 19, ¶ 27).

ATM provided the Director with the requested consent and content description on 24 September 2004 (Doc. # 19, ¶ 28). The narrative stated, in pertinent part, as follows:

This business is best characterized as an "adult videostore". The primary sales/rentals will consist of videotapes and DVDs with a sexually explicit content. Your application process apparently calls for a description of the content of these films — in particular, whether the films are "hard core" or "soft core" pornography. Those terms are not recognized in the industry and we do not believe they have any commonly accepted meaning. For instance the commercial distributors of these films merely rate them as "X" and do not notify retailers whether they are "hard core" or "soft core".

These films are limited to adults only. Persons under the age of 18 will not be permitted in the store. None of the films to be sold or rented are obscene under contemporary community standards. While many of the films depict actual sexual activities, those activities are not themselves obscene and, when viewed in context, have serious literary, artistic, political or scientific value. We believe that these films are comparable to those already being sold in Montgomery.7

On 29 September 2004, the City notified ATM that the City Council would consider the matter at a hearing scheduled for 5 October. (Doc. # 19, ¶ 29). On the day before the scheduled meeting, City police officers, citing the failure to obtain the necessary business license, ordered ATM to shut down. (Doc. # 19, ¶ 30).8 At the hearing the next day, after being advised by the City's attorney that it was improper to open a business without a license, the City Council voted to deny ATM's business license. (Doc. # 19, ¶¶ 33-34).

ATM then filed a civil complaint seeking to enjoin enforcement of City of Montgomery License Ordinance 48-91 ["48-91"], which ATM cited as the statutory premise of the city's denial of the business license (Doc. # 1, ¶ 49), on the ground that the ordinance violates the First Amendment on its face and as applied (Doc. # 1).

Following ATM's filing of a Motion For Preliminary Injunction on 15 October 2004 (Doc. # 2), the court, at both counsels' request, conducted a telephone status conference on 10 November 2004. During the conference, counsel for ATM and the City encouraged the court to schedule the case non-traditionally, i.e., outside the routine scope of Rule 16 because, in their opinion, the case was resolvable by reference to the application of law. FED. R. CIV. P. 16. Counsel also indicated that both parties were willing to submit the disposition of the case to summary judgment without resort to the usual discovery process. Thereafter, the court entered an order scheduling the parties' motions (Doc. # 15).

Thus, on 1 December 2004, ATM filed its Motion For Partial Summary Judgment (Doc. # 20), along with its memorandum in support (Doc. # 21). The City filed its response to the motion on 8 December 2004 (Doc. # 25), five days after it filed its own Motion For Summary Judgment (Doc. # 23).

ATM operated its store for less than 15 days (See Doc. # 16) and has not reopened the store since 4 October 2004.


Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law". FED. R. CIV. P. 56(c); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 111, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004). A dispute is genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Green v. Pittsburgh Plate and Glass Co., 224 F.Supp.2d 1348, 1352 (N.D.Ala.2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "A judge's guide is the same standard necessary to direct a verdict: `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Id. at 259, 106 S.Ct. 2505. "Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore, the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor." Id. at 255.

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party.9 Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996). Notwithstanding this advantage, the nonmoving party bears the burden of coming forth with sufficient evidence on each element that must be proved. Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080 (11th Cir.1990); see Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. When faced with a properly supported motion for summary judgment, a plaintiff must "go beyond the pleadings and ... designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Although the evidence need not be in a form necessary for admission at trial, id., unsupported, self-serving allegations are insufficient to oppose a motion for summary judgment. Harris v. Ostrout, 65 F.3d 912 (11th Cir.1995); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir.1984).

By stipulation, the parties have agreed that there is no genuine issue of material fact in this case and that the issues before the court are "resolvable by reference to applicable law" (See Doc. # 15). They further agree that, pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be entered for either party based upon the court's analysis, without further evidentiary submissions. The parties' agreement on the material facts has substantially facilitated the court's analysis of, and decision regarding, the propriety of summary judgment in this case.

A. The Parties' Contentions Regarding The Ordinance10
1. The General Text of the Ordinance

Ordinance 48-91 is a general enactment adopted by the ...

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