Christy v. City of Ann Arbor, 86-1172

• Decision Date: 23 July 1987
• Docket Number: No. 86-1172,86-1172
• Citation: 824 F.2d 489
• Parties: 14 Media L. Rep. 1483 Karen CHRISTY, individually and as sole shareholder of Unique Creations, Inc., a Michigan corporation, Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation; Edward Pierce, individually and as Mayor of the City of Ann Arbor; and William Corbett, individually and as Chief of Police of the City of Ann Arbor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 489

824 F.2d 489

14 Media L. Rep. 1483

Karen CHRISTY, individually and as sole shareholder of Unique Creations, Inc., a Michigan corporation Plaintiff-Appellant, v. CITY OF ANN ARBOR, a municipal corporation; Edward Pierce individually and as Mayor of the City of Ann Arbor; and William Corbett, individually and as Chief of Police of the City of Ann Arbor, Defendants-Appellees.

No. 86-1172.

United States Court of Appeals Sixth Circuit.

Submitted March 23, 1987.

Decided July 23, 1987.

Anita McIntyre, Grosse Pointe, Mich., and Franklin Richard Brussow, Brussow

and Krause, P.C., Lansing, Mich., for plaintiff-appellant.

Karen Christy, pro se.

R. Bruce Laidlaw, City Atty., Ann Arbor, Mich., for defendants-appellees.

Before JONES and BROWN, Circuit Judges, and RUBIN, Chief District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

Plaintiff, Karen Christy, appeals the district court's order denying her motion for a preliminary injunction. Her motion sought to enjoin temporarily the enforcement of Ann Arbor's adult business zoning regulations on the ground that they unconstitutionally restrict the operation of adult bookstores. Because the district court's decision was premised upon erroneous legal standards and because essential findings lack any support in the record, we vacate the district court's order and remand.

The facts of this case are set forth in the district court's opinion, Christy v. City of Ann Arbor, 625 F.Supp. 960 (E.D.Mich.1986). In brief, they are as follows. Plaintiff Christy wishes to operate in Ann Arbor an adult bookstore featuring materials which are sexually explicit but nonobscene in nature. The location where she intends to operate this bookstore is not in an area zoned for "adult entertainment businesses."

Ann Arbor's zoning code addresses "adult entertainment businesses" at section 5.50. An "adult bookstore" is there defined as:

An establishment having as a principal activity the sale of books, magazines, newspapers, video tapes, video discs and motion picture films which are characterized by their emphasis on portrayals of human genitals and pubic regions or acts of human masturbation, sexual intercourse or sodomy.

A "principal activity" is "[a] use accounting for more than 20 per cent of a business' stock in trade, display space, floor space or movie display time per month." The zoning code then states that such businesses,

may be located in the City only in accordance with the following restrictions:

(a) No such business shall be located within 700 feet of a district which, pursuant to this Chapter, has been classified R1A, R1B, R1C, R2A, R2B, R3, R4A, R4B, R4C, R4C/D or R6.

(b) Such businesses shall only be located in a district classified pursuant to this Chapter as C2A.

(c) No such business shall be established within 700 feet of another adult entertainment business.

Christy engaged the services of Dr. Edwin Thomas, Professor of Geography at the University of Illinois--Chicago, to survey Ann Arbor to determine the availability of sites complying with the requirements of section 5.50. The results of Dr. Thomas' survey are summarized as follows:

(1) Ann Arbor contains approximately 25.23 square miles;

(2) That area of Ann Arbor where an adult entertainment business may lawfully locate under Section 5.50(2) totals 0.058 square miles;

(3) The percentage of land area in Ann Arbor where an adult entertainment business may lawfully locate is approximately 0.23 (23/100) of 1%.

Christy filed suit in federal district court, asking that the Ann Arbor zoning ordinance be declared unconstitutionally restrictive and seeking an injunction against the ordinance's enforcement. Christy subsequently made a motion to preliminarily enjoin defendant's enforcement of the ordinance pending a final disposition in the case. Plaintiff appeals the denial of that motion under 28 U.S.C. Sec. 1292(a)(1) (1982).

This court may review a district court's grant or denial of a preliminary injunction only to determine whether the district court abused its discretion. American Motors Sales Corp. v. Runke, 708 F.2d 202, 205 (6th Cir.1983). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Christian Schmidt Brewing Co. v. G. Heilman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.1985) (citations omitted). See also C. Wright & A. Miller, Federal Practice and Procedure Sec. 2962 (1973). The court below based its denial of Christy's motion on her failure to fulfill the first requirement for a preliminary injunction--a demonstration of a likelihood of success on the merits. Whether the district court correctly decided that plaintiff was unlikely to succeed on the merits depends upon its correct application of Young v. American Mini Threatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and its progeny.

In American Mini Theatres, the Supreme Court upheld a Detroit zoning ordinance that prohibited the location of adult theatres and bookstores within 500 feet of a residential area and within 1,000 feet of two other "regulated uses." ¹ The Court held that this regulation was permissible because the interference with first amendment rights was "slight" in light of the myriad locations in Detroit still available for adult stores, id. at 71 n. 35, 96 S.Ct. at 2453 n. 35, and because the ordinance was shown to have the legitimate purpose of preventing urban blight. Id. at 71 n. 34, 96 S.Ct. at 2453 n. 34. The Court noted that the "situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." Id. at 71 n. 35, 96 S.Ct. at 2453 n. 35. The Court employed similar reasoning in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). It stated that the "appropriate inquiry" is whether a zoning ordinance "is designed to serve a substantial government interest and allows for reasonable alternative avenues of communication." Id. at 930. The Rent on ordinance was upheld because the evidence demonstrated that the city had reviewed relevant studies of other cities before enacting its own "skid row" ordinance and because the city had left open 5 percent (520 acres) of its land for the use of adult businesses.

Although both the Supreme Court's decisions on this issue have held the zoning ordinances to be constitutional, the Sixth Circuit has made it clear that each case must be decided according to its specific facts. In Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94 (6th Cir.1981), this court held unconstitutional an ordinance that prohibited the placement of adult theatres within 500 feet of a bar, a church, or a school, or within 250 feet of a residential zone. The court based its holding on the lack of factual support for the city's alleged purpose of preventing "blight" and on the ordinance's effect of totally banning adult theatres. Id. at 98. In CLR Corp. v. Henline, 702 F.2d 637 (6th Cir.1983), this court again declared a zoning ordinance to be unconstitutional. The ordinance in Henline was very similar to the ordinance now in question: it limited adult businesses to the "B-2" business district and required that they be 500 feet from any church, school, or residence, and 1,000 feet from any other restricted use. The court first pointed out that the ordinance severely restricted first amendment expression because its impact was to permit only two to four restricted uses in a half-mile strip of the 25 square mile city. Second, there was "no evidence in City Council meetings or elsewhere that the ordinance was enacted for the purpose of preventing urban blight through deconcentrating restricted uses." Id. at 639 (emphasis in original). Although the city need not have conducted its own research on the effect of adult businesses on the city's urban areas, id., the court insisted on some proof that the city was actually attempting to address the problem of urban blight.

In the case before us, the district court applied the two-part analysis required by this line of cases. It examined both the restrictiveness of the zoning ordinance and the city's justification for imposing restrictions. However, the district court made several crucial errors in the course of its examination.

First, the district court principally relied upon the zoning ordinance's applicability only to businesses with more than 20 percent adult wares in order to hold that the ordinance was "not greatly restrictive of first amendment rights." 625 F.Supp. at 966.

Ann Arbor's unique provisions that allow businesses to have up to 20% of their stock in trade, etc., in adult materials, without imposing any zoning regulation, gives [sic] the public easy access to these materials.

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By allowing stores to carry up to 20% adult wares, the ordinance guarantees the right of merchants to sell these materials.

Id. The district court's reasoning seems to be that a city can set an arbitrary limit on the amount of adult materials sold in bookstores, and such a limitation is not greatly restrictive of first amendment rights as long as some adult materials are still available. However, a city cannot arbitrarily limit the exercise of first amendment rights. Nonobscene, erotic materials are a form of protected expression under the first amendment. American Mini Theatres, 427 U.S. at 73 n. 1, 96 S.Ct. at 2453 n. 1 (Powell, J., concurring); Avalon Cinema Corp. v. Thompson, 667 F.2d 659, 663 n. 10 (8th Cir.1981) (en banc); Buchanan, Toward a Unified Theory of Governmental Power to Regulate Protected Speech, 18 Conn.L.Rev. 531 (1986). It is clearly quite restrictive to permit a business to engage in that protected expression only 20 percent of the time. To demonstrate the fallaciousness of the district court's reasoning, imagine an ordinance allowing book stores to sell nonfiction only if they limit nonfiction to 20 percent of...