Broadway Books, Inc. v. Roberts

• Decision Date: 12 June 1986
• Docket Number: No. CIV 1-86-194.,CIV 1-86-194.
• Citation: 642 F. Supp. 486
• Parties: BROADWAY BOOKS, INC., a Tennessee corporation, Dexter Eugene Franklin, d/b/a Peepers Adult Bookstore and David Boles, d/b/a Cinema One Adult Bookstore and Theatre, Plaintiffs, v. Gene ROBERTS, as Mayor for the City of Chattanooga, John P. Franklin, Paul F. Clark, James C. Eberle, Tom Kennedy, as Members of the Board of Commissioners of the City of Chattanooga, Eugene N. Collins, as City Attorney for the City of Chattanooga, and the City of Chattanooga, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

642 F. Supp. 486

BROADWAY BOOKS, INC., a Tennessee corporation, Dexter Eugene Franklin, d/b/a Peepers Adult Bookstore and David Boles, d/b/a Cinema One Adult Bookstore and Theatre, Plaintiffs, v. Gene ROBERTS, as Mayor for the City of Chattanooga, John P. Franklin, Paul F. Clark, James C. Eberle, Tom Kennedy, as Members of the Board of Commissioners of the City of Chattanooga, Eugene N. Collins, as City Attorney for the City of Chattanooga, and the City of Chattanooga, Defendants.

No. CIV 1-86-194.

United States District Court, E.D. Tennessee, S.D.

June 11, 1986.

As Amended June 12, 1986.

COPYRIGHT MATERIAL OMITTED

David Haines Rotroff, Chattanooga, Tenn., Charles W. Boyle, Atlanta, Ga., for plaintiffs.

Randall L. Nelson, W. Lee Maddux, Phillip A. Noblett, Chattanooga, Tenn., for defendants.

MEMORANDUM

EDGAR, District Judge.

This is an action brought by the owners of three adult bookstores in Chattanooga, Tennessee for a declaratory judgment that the recently enacted City of Chattanooga Ordinance 8601 is unconstitutional, in whole or in part, and for injunctive relief. This case has been fully heard on the merits and is now ready for disposition.

Ordinance 8601 establishes a licensing procedure for "adult-oriented establishments" which are defined to include "adult bookstores", "adult motion picture theaters", "adult mini-motion picture theaters" and "adult cabarets."

The plaintiffs in this case are three of approximately eleven adult-oriented establishments in the Chattanooga area which provide closed booths for patrons to watch coin-operated video machines depicting erotic sexually explicit activity. The ordinance requires licenses for operating these adult-oriented establishments. There is no question that the plaintiffs in this suit fall within the confines of this ordinance and would require a license to continue to operate. The ordinance also requires that any "entertainer" in these establishments obtain a permit.¹

License applicants must furnish specified information to the City Treasurer to obtain a license. This disclosure must also be made by partners of partnership applicants, and by officers, directors and the owners of more than five percent (5%) of the stock of corporate applicants.

In order to receive a license to operate an adult-oriented establishment, an applicant must meet the following standards which are specified in section 7 of the ordinance:

1. If the applicant is an individual:

(i) The applicant shall be at least eighteen (18) years of age and a person of good moral character and reputation in the community in which he or she resides.

(ii) The applicant shall not have been convicted of or pleaded nolo contendere to a felony or any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature in any jurisdiction within five (5) years immediately preceding the date of the application.

(iii) The applicant shall have been a resident of the City of Chattanooga or its environs continuously for thirty (30) days immediately preceding the date of the application.

(iv) The applicant shall not have been found to have previously violated this ordinance within five (5) years immediately preceding the date of the application.

Similar issuance standards apply to officers, directors and stockholders of corporations where the applicant is a corporation and to partners in joint venturers when the applicant takes those business forms.

The ordinance requires a payment of a $500 fee to be submitted with the application for an operator's license. One-half of the fee is returned if the application is denied. The licenses are to be renewed upon application annually.

A key provision of the ordinance is specifically directed at the booths which are contained within these establishments. The ordinance provides in section 14(g) that:

Every adult-oriented establishment shall be physically arranged in such a manner that the entire interior portion of the booths, cubicles, rooms or stalls, wherein the adult entertainment is provided, shall be visible from the common area of the premises. Visibility shall not be blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever. It shall be unlawful to install booths, cubicles, rooms or stalls within adult-oriented establishments for whatever purpose, but especially for the purpose of secluded viewing of adult-oriented motion pictures or other types of adult entertainment.

The ordinance contains several other provisions which will be discussed below. The entire ordinance is attached as Appendix A to this memorandum opinion.

Ordinance 8601 as a whole regulates the time, place and manner of expression. While its implementation may have some impact upon constitutionally protected first amendment activity, the Court finds that it was not enacted for the purpose of limiting speech on the basis of its content. The ordinance is not directed at future expression by businesses. See City of Paducah v. Investment Entertainment, Inc., 791 F.2d 463 (6th Cir.1986). Furthermore, the City is not prevented by the first amendment nor by the fourteenth amendment's equal protection clause from classifying and regulating adult-oriented establishments differently from other places of entertainment. Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), City of Minot v. Central Ave. News, 308 N.W.2d 851 (N.D. 1981); Airport Book Store, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d 623 (1978). Therefore, Ordinance 8601 is not presumptively invalid under the first amendment. Renton v. Playtime Theaters, Inc., ___ U.S. ___, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir.1979).²

This ordinance is constitutional if it is designed to serve a substantial governmental interest and does not limit alternative avenues of communication. Renton, ___ U.S. at ___, 106 S.Ct. at 928, 89 L.Ed.2d at 37. An even more precise formula for testing the constitutional validity of this ordinance has been provided by the Supreme Court in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which held that this genre of regulation is sufficiently justified:

... if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest.

391 U.S. at 377, 88 S.Ct. at 1679. With the exceptions noted below, this Court finds that Ordinance 8601 meets these requirements in every respect.

These adult-oriented establishments are a substantial law enforcement problem for the Chattanooga Police Department — and particularly for its vice squad. Since 1982, Chattanooga police officers have arrested numerous people at these establishments for sex-related crimes such as prostitution, selling obscene material to juveniles, indecent exposure, assignation, and solicitation to commit an unnatural sex act. There have been 112 such arrests since 1982. These are in addition to numerous arrests at these establishments on other charges such as gambling, assault and battery, and public drunkenness. Some of the arrests have been of employees at these establishments, including the plaintiff establishments. On numerous occasions, plainclothes police officers and others at these places have been grabbed by the genitals or otherwise solicited for homosexual activity.

In addition, these establishments, particularly the closed booths, have been found to be filthy. Police officers and others have found semen and blood on the walls, floors and video screens; dirty Kleenex stuck to the walls; condoms on the floors; and defecation and urine on the floors. These booths frequently contain "glory holes" or holes cut or smashed out between the booths to permit inter-booth sexual activity. Officers have observed more than one person enter one of these booths and have observed people masturbating therein. The Chattanooga City Commission, with the above information, enacted Ordinary 8601.

The Commission made specific findings in the ordinance regarding the problems encountered as a result of these unregulated adult-oriented establishments. (See the preamble and section 1 of the ordinance.) One of the Commission's paramount concerns was the health hazard created by these establishments and the increased incidence of Acquired Immune Deficiency Syndrome (AIDS) which have been reported in the Chattanooga area. Dr. Katherine Hankins of the Hamilton County Health Department testified that exposure to the blood and semen in these booths could transmit the HTLV-III virus that carries AIDS, not to mention the exposure which could be generated by sex acts conducted through the "glory holes."

The City of Chattanooga in enacting Ordinance 8601 was not required to find by a judicially allocated burden of proof that the ordinance was necessary to achieve the desired results. The Fourth Circuit recently said in Wall Distributors, Inc. v. City of Newport News, Va., 782 F.2d 1165, 1169 (4th Cir.1986), that:

Judicial review goes only to whether the legislative determination of justification and fitness is not facially without factual support, hence not arbitrary and capricious.

To establish a substantial governmental interest, it is necessary only that the City here demonstrate that the evidence which it relied upon "is reasonably believed to be relevant to the problem that the city addresses." Renton, ___ U.S. at ___, 106 S.Ct. at 930, 89 L.Ed.2d at 40. The Court finds that the City of Chattanooga in enacting Ordinance 8601 acted properly upon such reasonable belief. There is here a rational relationship between the ordinance and the...