City of Albuquerque v. Pangaea Cinema LLC

• Citation: 2012 -NMCA- 075,284 P.3d 1090
• Decision Date: 20 July 2012
• Docket Number: No. 30,380.,30,380.
• Parties: CITY OF ALBUQUERQUE, Plaintiff–Appellee, v. PANGAEA CINEMA LLC d/b/a Guild Cinema LLC, and Keif Henley, Registered Agent, Defendants–Appellants.
• Court: Court of Appeals of New Mexico

284 P.3d 1090

2012 -NMCA- 075

CITY OF ALBUQUERQUE, Plaintiff–Appellee,

v.PANGAEA CINEMA LLC d/b/a Guild Cinema LLC, and Keif Henley, Registered Agent, Defendants–Appellants.

No. 30,380.

Court of Appeals of New Mexico.

May 29, 2012.

Certiorari Granted, July 20, 2012, No. 33,693.

Appeal From The District Court Of Bernalillo County, Carl J. Butkus, District Judge.

City of Albuquerque, Robert D. Kidd, Jr., Interim City Attorney, John E. DuBois, Assistant City Attorney, Albuquerque, NM, for Appellee.

ACLU of New Mexico, Laura Schauer Ives, Bach & Garcia LLC, George Bach, Kari Morrissey, Albuquerque, NM, for Appellants.

OPINION

CASTILLO, Chief Judge.

{1} The Guild Cinema (the Guild), a locally owned art-house movie theater in the Nob Hill neighborhood of the City of Albuquerque (the City), was prosecuted under the City's zoning regulations covering adult amusement establishments for showing one pornographic film during a weekend festival of X-rated fare. The Guild argues that the City's crackdown on the showing of just one adult film outside of a zone designated for adult entertainment violates a mainstream theater's free-speech rights by misusing an ordinance that is unconstitutionally vague and unfairly applied in this instance. We conclude that the ordinance is not vague and was not unconstitutionally applied, and we affirm.

I. BACKGROUND

{2} The parties stipulated to the facts before the district court. Pangaea Cinema, LLC does business as a single-screen movie theater known as the Guild Cinema in the Nob Hill neighborhood of the City along East Central Avenue. Although its most common fare consists of independent feature films and documentaries, in November 2008 the Guild played host to its second annual “Pornotopia” festival, a weekend slate of erotic films. During the festival's second day, two code enforcement officers for the City attended two film screenings. The officers, one male and one female, both concluded that one of the films, “Couch Surfers: Trans Men in Action,” met the definition of an adult film under the City's Zoning Code (the Code). Albuquerque, N.M., Zoning Code ch. 14, art. XVI (2008, as amended through 2011). A specific ordinance within the Code, Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, § 14–16–1–5(B) (the Ordinance) allows adult films to be shown only in specified zones of the City and prohibits the public screening of such films in all other areas, including the business district of Nob Hill where the Guild is situated. A criminal complaint was filed charging the Guild with operating as an adult amusement establishment outside of an area zoned for such activity. The Guild concedes that the film it showed featured “specified anatomical areas” and “specified sexual activities” as defined by the Ordinance. The City acknowledges that the exhibition of one adult film did not cause negative secondary effects, such as criminal activity. Affidavits filed by some of the Guild's commercial neighbors reported positive effects from the event, in particular, increased business at their establishments during that weekend.

{3} The Guild was convicted in metropolitan court, and it appealed to district court. The parties stipulated to facts and exhibits, and they agreed to forgo a trial and agreed instead to have the matter decided on the Guild's motion to dismiss the charge. The district court affirmed the findings of the metropolitan court, upheld the conviction in a thirty-one-page opinion, and fined the cinema $500 for the infraction. The Guild filed a motion for reconsideration that was denied by the district court. This appeal followed.

II. DISCUSSION

{4} The Guild argues that it should not be categorized as an adult amusement establishment under what it considers to be the City's unconstitutionally vague Ordinance and that, because no secondary effects resulted from the showing of the film, the City exceeded its zoning authority by impermissibly targeting the content of the Guild's speech in violation of the theater's free-speech rights. We take those three arguments in turn, and we review them de novo. See Gomez v. Chavarria, 2009–NMCA–035, ¶ 6, 146 N.M. 46, 206 P.3d 157 (stating that constitutional questions and issues of statutory construction are reviewed de novo).

A. The Ordinance Need Not Be More Narrowly Construed

{5} The Guild first asks us to avoid the constitutional issues and find that a close reading of the City's Ordinance leads to the conclusion that the Ordinance does not apply to the Guild's screening of a single adult film. The Ordinance reads, in pertinent part:

ADULT AMUSEMENT ESTABLISHMENT. An establishment such as an auditorium, bar, cabaret, concert hall, nightclub, restaurant, theater, or other commercial establishment that provides amusement or entertainment featuring one or more of the following:

(1) A live performance, act or escort service distinguished or characterized by an emphasis on the depiction, description, exposure, or representation of specified anatomical areas or the conduct or simulation of specified sexual activities; or

(2) Audio or video displays, computer displays, films, motion pictures, slides or other visual representations or recordings characterized or distinguished by an emphasis on the depiction, description, exposure or representation of specified anatomical areas or the conduct or simulation of specified sexual activities.

Albuquerque, N.M., Rev. Ordinances § 14–16–1–5(B) (emphasis added). Another applicable ordinance states: “Any use not designated a permissive or conditional use in a zone is specifically prohibited from that zone, except as otherwise provided herein.” Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, § 14–16–1–3(B) (1980).

{6} When interpreting an ordinance, we look to its language: “If the language makes the [ordinance] understandable and sensible, that is all that is necessary to uphold it as valid.” State ex rel. Children, Youth & Families Dep't v. Shawna C., 2005–NMCA–066, ¶ 34, 137 N.M. 687, 114 P.3d 367 (internal quotation marks and citation omitted). “Legislative intent is determined primarily from the language of the statute and from the legislative purpose to be achieved.” State v. Andrews, 1997–NMCA–017, ¶ 5, 123 N.M. 95, 934 P.2d 289 (citation omitted). “In order to construe faithfully what the Legislature meant[,] ... we consider the plain meaning of the words used in the context of the statutory text as a whole.” Quynh Truong v. Allstate Ins. Co., 2010–NMSC–009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (citation omitted). “A statute is read literally if its words are plain and unambiguous, provided such a construction would not lead to an injustice, absurdity, or contradiction.” Andrews, 1997–NMCA–017, ¶ 5, 123 N.M. 95, 934 P.2d 289.

{7} In the case before us, the portion of the Ordinance italicized above defines an adult amusement establishment, in one instance, as a “theater ... that provides ... entertainment featuring ... motion pictures ... distinguished by an emphasis on ... specified anatomical areas or the conduct or simulation of specified sexual activities.” The Guild first zeroes in on the word “featuring” and argues that it does not encompass the showing of just one adult film; rather it should be interpreted to mean “regularly featur [ing]” such films. The dissent agrees with the Guild and concludes that characterizing the Guild as an “adult amusement establishment” for its single showing of an adult film defies common understanding. Dissenting Opinion, ¶ 50. We disagree and explain. As we have stated, we look to the plain language of the Ordinance. To include the concept that the showing must be regular, we would have to add a word that is not there and rely on other jurisdictions that interpret differently worded statutes. “Feature,” in its verb form, is defined as “to make a feature of; give special prominence to,” with the following example given: “the theater was featuring a murder-mystery film.” Webster's Third New Int'l Dictionary 832 (1976). As the district court noted, movie theaters and television stations often advertise the presentation of a feature film. To bolster its argument, the Guild ventures to other jurisdictions for interpretive support. It unconvincingly relies on one case that is based on an ordinance that does not use the word “feature”; one case in which the ordinance explicitly uses the phrase “regularly features”; and two cases, including an unpublished opinion out of Alaska, that deal with live “adult cabaret.” See Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir.2000); Schmitty's City Nightmare, LLC v. City of Fond Du Lac, 391 F.Supp.2d 745 (E.D.Wis.2005); Stevens v. Matanuska–Susitna Borough, Nos. A–9674, A–9683, 2007 WL 2143008 (Alaska Ct.App. July 25, 2007); People v. Super. Ct. (Lucero), 49 Cal.3d 14, 259 Cal.Rptr. 740, 774 P.2d 769 (1989). None is persuasive or materially on point with the statutory analysis in this case.

{8} Finally, the Guild points out a difference between the Ordinance's reference to live exhibition and its reference to the exhibition of films. The Ordinance uses singular language to refer to any live exhibition and plural language for the exhibition of film. According to the Guild, this language difference suggests that just one live performance could be expected to produce negative secondary effects but that it would take multiple exhibitions of films to create those effects and thus trigger enforcement. We disagree. The Ordinance explicitly provides that any plural language used includes the singular and vice versa, Albuquerque, N.M., Rev. Ordinances § 14–16–1–5(A)(2), and we see no reason to find an exception to that common statutory language. Cf. State ex rel. Richardson v. 5th Jud. Nominating Comm'n, 2007–NMSC–023, ¶ 17, 141 N.M. 657, 160 P.3d 566. Nothing in the Ordinance suggests that the City Council made a distinction between live acts and feature films.

{9} We are not persuaded by the Guild's arguments that...