Avalon Cinema Corp. v. Thompson

• Decision Date: 31 August 1981
• Docket Number: No. 81-1162,81-1162
• Citation: 658 F.2d 555
• Parties: 7 Media L. Rep. 2059 AVALON CINEMA CORPORATION, Appellant, v. Reed THOMPSON, Individually and in his official capacity as Mayor of North Little Rock, Arkansas, et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 555

658 F.2d 555

7 Media L. Rep. 2059

AVALON CINEMA CORPORATION, Appellant, v. Reed THOMPSON, Individually and in his official capacity as Mayor of North Little Rock, Arkansas, et al., Appellees.

No. 81-1162.

United States Court of Appeals Eighth Circuit.

Submitted May 21, 1981.

Decided Aug. 31, 1981.

John H. Weston, argued, Brown, Weston & Sarno, Beverly Hills, Cal., John Wesley Hall, Jr., P. A., Little Rock, Ark., for appellant.

Jim Hamilton, City Atty., argued, G. Spence Fricke, Asst. City Atty., North Little Rock, Ark., for appellees.

Before GIBSON, Senior Circuit Judge, ARNOLD, Circuit Judge, and McMANUS ^*, Chief District Judge.

McMANUS, Chief District Judge.

Avalon Cinema Corporation (Avalon) appeals from a judgment, 506 F.Supp. 526, ¹ in this 42 U.S.C. § 1983 case upholding the constitutionality of a zoning ordinance enacted in November, 1980, by the City of North Little Rock, Arkansas (City) and denying its application for preliminary injunction. For reversal Avalon contends first that the zoning ordinance on its face violates the first and fourteenth amendments by restricting public access to a form of protected speech and second, that regardless of the facial constitutionality of the zoning ordinance, it violates the first amendment as applied to Avalon.

On September 30, 1980, Avalon obtained building permits from the City to construct a movie theater and bookstore at 1101 West Avalon in North Little Rock. On that same date it also received a privilege license to operate a movie theater at that location. Avalon thereafter made preparations to open and operate a commercial adult theater and bookstore for the exhibition and sale of sexually oriented films and publications. There were no adult movie theaters in the City at the time and the record indicates that none, aside from Avalon, was preparing to open. On November 19, 1980, Avalon acquired a privilege license to operate an adult bookstore at the above location. ² On that same date, a special meeting of the North Little Rock City Council was called at which an emergency zoning ordinance (the ordinance or zoning ordinance) was enacted. Section 1 of the five-section ordinance provides:

A person commits an offense if he operates or causes to be operated within one hundred yards of a church, public or private elementary or secondary school, or an area restricted to residential use by the Comprehensive Zoning Ordinance of the City, or a public park adjacent to residential areas, a moving picture show or moving picture theatre which exhibits, or any shop or store which offers for sale, a film that explicitly depicts:

(1) Contact between any part of the genitals of one person and the genitals, mouth, or anus of another person;

(2) Contact between a person's mouth, anus, genitals and the mouth, anus, or genitals of an animal or fowl;

(3) Manipulation of a person's genitals;

(4) Defecation, or;

(5) Urination.

Avalon is presently located within 100 yards of a residential area.

The trial court found that the challenged ordinance was a valid exercise of the City's police power and was designed to preserve the integrity of the neighborhoods and the quality of life in North Little Rock and was not designed to proscribe speech.

In upholding the constitutionality of the ordinance, the trial court relied primarily on Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). There, the United States Supreme Court upheld the constitutionality of two 1972 zoning ordinances that amended a Detroit, Michigan "Anti-Skid Row Ordinance" to provide that an adult movie theater may not be located within 1,000 feet of any two other "regulated uses" ³ or within 500 feet of a residential area. The ordinances were challenged on three grounds: (1) that they were so vague as to violate the due process clause of the fourteenth amendment; (2) that they were invalid on first amendment grounds as prior restraints on protected communication; and (3) that classifying theaters based on film content violates the equal protection clause of the fourteenth amendment.

The Court rejected the first challenge by stating that any vagueness in the language of the ordinances had not affected plaintiff-respondent. As to the third challenge, a section of the plurality opinion subscribed to by four justices stated that society had a lesser interest in protecting erotic expression than in protecting political expression. The plurality held that the state could legitimately use the content of the sexually explicit materials as the basis for placing them in a different classification from other motion pictures.

The second challenge, that the zoning ordinances were invalid under the first amendment as prior restraints on protected communication, is quite similar to the challenge made to the North Little Rock ordinance. The Court in Young stated:

It is true ... that adult films may only be exhibited commercially in licensed theaters. But that is also true of all motion pictures. The city's general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances.

427 U.S. at 62, 96 S.Ct. at 2448.

The court concluded that the 1,000 foot restriction itself did not impermissibly restrain protected communication. In this section of the opinion subscribed to by five justices, the Court stated that the city can reasonably regulate the locations of adult movie theaters so long as it does not eliminate the protected communication altogether. Justice Powell amplified on this in his concurring opinion. As he saw it:

... the central concern of the First Amendment in this area is that there be a free flow from creator to audience of whatever message a film or a book might convey .... the central First Amendment concern remains the need to maintain free access of the public to the expression.

In this case, there is no indication that the application of the Anti-Skid Row Ordinance to adult theaters has the effect of suppressing production of or, to any significant degree, restricting access to adult movies. The Nortown concededly will not be able to exhibit adult movies at its present location, and the ordinance limits the potential location of the proposed Pussy Cat. The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business. But in this respect they are affected no differently from any other commercial enterprise that suffers economic detriment as a result of land-use regulation. The cases are legion that sustained zoning against claims of serious economic damage.

Young, supra, at 77-8, 96 S.Ct. at 2455-6 (Authorities omitted).

Similar reasoning prevailed in the present case. As the trial court stated: ⁴

... (the ordinance) does not seek to prevent the showing of adult films in the City of North Little Rock, but merely to prohibit the establishment of theaters which would exhibit certain well-defined sexually explicit films in certain areas of that City.

Testimony here established that there is a commercial area in downtown North Little Rock consisting of approximately ten to twelve square city blocks where an adult theater could be located without violating the zoning ordinance in question. ⁵ In upholding the validity of the zoning ordinance, we emphasize that it does not eliminate adult movie fare from North Little Rock by making it impossible for an adult movie theater operator to comply with it as a practical matter. The ordinance simply regulates the locations in which adult theaters can operate, and in so doing, it leaves a sizeable swath of the commercial downtown North Little Rock available for such uses. It cannot be said therefore, that this ordinance "... has the effect of suppressing production of or, to any significant degree, restricting access to adult movies." Young, 427 U.S., at 77-8, 96 S.Ct. at 2455-6.

Avalon next contends that the ordinance as applied to it violates the first amendment because it deprives Avalon from exhibiting or selling sexually oriented films after receiving the necessary preliminary city approvals and after expending substantial sums in remodeling its building. The contention is well taken, as far as it goes. The ordinance as applied to Avalon deprives it of the ability to operate the adult movie theater at its present location, which is within 100 yards of a residential area. It does not deprive it from operating an adult theater in North Little Rock altogether.

While the Court is sympathetic to Avalon's argument regarding economic loss, we are reminded of Justice Powell's observation in Young : "The cases are legion that sustained zoning against claims of serious economic damage." 427 U.S., at 78, 96 S.Ct. at 2456. Moreover, Avalon's contention that the ordinance was enacted in the face of the adult theater's opening does not prove fatal. Avalon maintains that the ordinance was enacted hastily in order to prevent the exhibition and sale of sexually oriented films. The record allows another interpretation. While the zoning ordinance was enacted on November 19, 1980, Avalon did not intend to open until December 18, 1980. ⁶ More important, the ordinance did not effect an outright ban on the exhibition and sale of adult films, it reasonably regulated where they could be exhibited and sold within the city. Therefore, we find the ordinance is not unconstitutional as applied to Avalon.

In this regard we note that our decision does not...