Bamon Corp. v. City of Dayton, C-3-89-445.

• Decision Date: 25 January 1990
• Docket Number: No. C-3-89-445.,C-3-89-445.
• Citation: 730 F. Supp. 80
• Parties: BAMON CORP., d/b/a McCook Theatre, Plaintiff, v. CITY OF DAYTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

730 F. Supp. 80

BAMON CORP., d/b/a McCook Theatre, Plaintiff, v. CITY OF DAYTON, et al., Defendants.

No. C-3-89-445.

United States District Court, S.D. Ohio, W.D.

January 25, 1990.

Eugene Robinson, Dayton, Ohio, Lee J. Klein, Bradley J. Shafer, Okemos, Mich., for plaintiff.

J. Anthony Sawyer, City of Dayton Law Director, Ken Barden, Asst. City Atty., Dayton, Ohio, for defendants.

DECISION AND ENTRY GRANTING DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (Doc. #5), CONSIDERED AS A MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR DEFENDANTS AND AGAINST THE PLAINTIFF; TERMINATION ENTRY

RICE, District Judge.

This case is before the Court on Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. #5). Since matters outside of the pleadings have been proffered by the parties and considered by the Court, said Motion will be considered as a motion for summary judgment. For the reasons set forth below, the Court sustains said Motion in its entirety and grants Summary Judgment in favor of the Defendants and against the Plaintiff in this case. The following discussion constitutes the Court's findings of fact and conclusions of law.

On October 18, 1989, the City Commission of Dayton, Ohio, passed an ordinance (# 28028, enacting Sections 136.08-09 of the City's Revised Code of General Ordinances) (hereinafter "the Ordinance") regulating the design and occupancy of video booths located in "Amusement Arcades" and in which a "film or video viewing device" is used to exhibit material depicting certain enumerated sexual acts and bodily functions. Section 136.08 of the Ordinance defines an "Amusement Arcade" as "any place of business other than hotels or motels in which a film or video viewing service or devices are located for the use of sic entertainment of a person or persons patronizing the place of business." If the material depicted by "film or video viewing devices" within an amusement arcade depicts any of the enumerated subjects listed in Section 136.09(A), every video booth in which such material is shown must comply with the following requirements:

(1) Be visible from a well-illuminated continuous main aisle;

(2) Not be obscured by any curtain, door or other enclosure;

(3) All side or rear walls must be without holes or openings;

(4) Shall not be occupied by more than one patron at a time;

(5) Be illuminated by a light bulb of a wattage of no less than 25 watts.

Section 136.09(B). The Ordinance further provides that any "owner, operator, employee, or agent of an amusement arcade" who violates these requirements, and/or who allows or permits a violation thereof, and any patron who violates the one-patron-per booth requirement, is guilty of a first degree misdemeanor.¹

Plaintiff Bamon Corporation ("Plaintiff") is an Ohio corporation which has been doing business as McCook Theatre at the same location in the City of Dayton for the past ten years. Doc. #1 at 5.² Plaintiff's business, which consists of a theatre, boutique and "entertainment facility," id. at 6, primarily involves the sale of "Adult" books and magazines, the sale and/or rental and exhibition of "Adult" films and videotapes, and the exhibition of "Adult" live entertainment. Id. at 4, 6. It is undisputed that the sexually explicit materials comprising Plaintiff's stock in trade are not classified as legally obscene; they are, therefore, protected under the first amendment. Christy v. City of Ann Arbor, 824 F.2d 489, 492 (6th Cir.1987) (citing Young v. American Mini Theatres, 427 U.S. 50, 73 n. 1, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (1976) (Powell, J., concurring)). There are thirty-five viewing booths on Plaintiff's premises in which a pre-set movie may been seen for a fee of twenty-five cents, four booths in which a videotape rented for five dollars may be viewed, and thirteen booths in which may be viewed live nude and/or semi-nude entertainment by a performer separated from the viewer by a glass plate. Doc. #1 at 6-7. All of the booths in Plaintiff's establishment are totally enclosed, having neither windows nor other "viewing portholes," and have a full-length door which patrons may lock. Id. at 7.

The second reading of the Ordinance took place at a public meeting of the Dayton City Commission held on October 18, 1989. The Ordinance was passed by an unanimous vote of the Dayton City Commission at that meeting. During a telephone conference on December 6, 1989, the parties entered into a stipulation concerning the verified verbatim transcript of that portion of the proceedings devoted to the Ordinance, Doc. #5, Defendants' Exhibit A ("Transcript"). By entry dated December 27, 1989, to which neither party has raised an objection, the Court characterized this stipulation as meaning that the Transcript "represents the universe of information that was submitted to the City Commissioners, along with the wording of the Ordinance in question," prior to the Commissioners' vote to enact the ordinance. Doc. #6 (emphasis added).³

Plaintiff filed the instant action on November 13, 1989, seeking an order of this Court declaring the Ordinance unconstitutional and permanently enjoining its enforcement. Doc. #1 at 13. Defendants in this action are the City of Dayton; Richard Clay Dixon, Mayor of the City of Dayton; James Newby, Chief of Police of the City of Dayton; and the Dayton City Commissioners ("Defendants"). Plaintiff alleges that the Ordinance violates the first, fourth, ninth, and fourteenth amendments to the United States Constitution, as well as "corollary" provisions under the Ohio Constitution, that it is preempted by the federal Video Privacy Protection Act, 18 U.S.C. § 2710, and that its enactment violated Plaintiff's procedural due process rights. This Court issued a Temporary Restraining Order on January 16, 1990, the effective date of the Ordinance, enjoining the enforcement of the Ordinance by the City of Dayton until January 25, 1990, or the announcement of its decision and reasoning in support thereof, whichever event occurred first. Doc. #13.

The Court, having before it both Plaintiff's verified Complaint and the verified copy of the Transcript of the proceedings before the Dayton City Commission that accompanies Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, Defendants' Exhibit A, will treat Defendants' Motion as a Motion for Summary Judgment. Therefore, as an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. On a motion for summary judgment, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).

A. First Amendment Claims

The core of Plaintiff's first amendment claims is the allegation that the Ordinance is unconstitutional because it is supported by neither a "compelling" nor a "substantial" government interest. Doc. #1 at ¶¶ 21, 31. Plaintiff alleges that the Ordinance is "unsupported by any relevant facts upon which the City of Dayton could reasonably rely to justify its enactment." Id. at ¶ 21. As a result, Plaintiff alleges, the Ordinance violates Plaintiff's right to exhibit, and Plaintiff's patrons' right to view,⁴ the films, video tapes and live entertainment available to customers in Plaintiff's viewing booths. Id. at ¶ 23.

The Court recognizes that enforcement of the Ordinance will impose an incidental burden on the forms of protected expression which comprise Plaintiff's stock in trade; but it is well settled that municipalities may impose reasonable time, place and manner restrictions upon protected expression, as long as the legislation imposing those restrictions is a) content-neutral; b) supported by and designed to serve a substantial government interest; and c) allows for reasonable alternative channels of communication. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986).⁵ See also United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Dayton Ordinance does not ban the viewing of sexually explicit materials exhibited in viewing booths, nor does it restrict the availability of such materials. Therefore, it is properly analyzed as a time, place and manner regulation, Renton, 475 U.S. at 46, 106 S.Ct. at 928, as courts faced with constitutional challenges to "open-booth" ordinances have routinely held. Williams v. City of Columbus, No. 87-1440 (S.D. Ohio June 1, 1988) (Order denying motion for temporary restraining order and preliminary injunction), aff'd., 872 F.2d 1030 (6th Cir.1989). See also Berg v. Health and Hospital Corp., 865 F.2d 797, 802 (7th Cir. 1989); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1168 (4th Cir.1986); Movie & Video World v. Board of County Commissioners, 723 F.Supp. 695, 698 (S.D.Fla.1989); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486, 490 (E.D. Tenn.1986). It remains for the Court to determine whether, as Defendants assert, Doc. # 5 at 2-6, Dayton's Ordinance satisfies the Renton criteria.

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