City of Colorado Springs v. 2354 Inc.

Citation896 P.2d 272
Decision Date08 May 1995
Docket NumberNo. 93SA106,93SA106
PartiesCITY OF COLORADO SPRINGS, an Incorporated Municipality, Robert Isaac, Leon Young, Lisa Are, Cheryl Gillespie, John Hazelhurst, Mary Lou Makepeace, Randy Purvis, Larry Small, David White, in their official capacities only as members of the Colorado Springs City Council, Defendants-Appellants/Cross-Appellees, v. 2354 INC., a Colorado Corporation, d/b/a Baby Dolls; Golden Que, Inc., a Colorado Corporation, d/b/a Jerry McNasty's; Fantasy Books, Inc., a Colorado Corporation; Mitchell Kelloff Theatres, Inc., a Colorado Corporation, d/b/a Ambassador Cinema; Sam Leeper, d/b/a Eighth Street Adult Book & Video Store; Modern Books of Colorado, Inc., a Colorado Corporation; Darryl Deighton, d/b/a First Amendment Bookstore, Plaintiffs-Appellees/Cross-Appellants.
CourtSupreme Court of Colorado

James G. Colvin II, City Atty., City of Colorado Springs, and Kurt G. Stiegelmeier, Sr. Litigation Atty., Colorado Springs, for defendants-appellants/cross-appellees.

Arthur M. Schwartz, P.C., Arthur M. Schwartz, Bradley J. Reich and Michael W. Gross, Denver, for plaintiffs-appellees/cross-appellants.

Justice KIRSHBAUM delivered the Opinion of the Court.

The defendants-appellants/cross-appellees, the City of Colorado Springs and the members of the Colorado Springs City Council (the defendants), appeal portions of a summary judgment entered by the El Paso County District Court declaring that two provisions of Colorado Springs Ordinance No. 92-159 (the Ordinance) and a related provision of the 1980 Colorado Springs Code (the Code) are unenforceable because of facial violations of the First Amendment to the United States Constitution. 1 The plaintiffs-appellees/cross-appellants, three corporations and two individuals operating bookstores and theaters and two corporations operating liquor-licensed establishments that present various forms of partially nude dancing to their patrons (the plaintiffs), appeal other portions of the trial court's judgment declaring that numerous other provisions contained in the Ordinance are not facially unconstitutional. 2 We affirm the judgment in part and reverse in part.

I

On November 24, 1992, the Colorado Springs City Council enacted the Ordinance, effective December 17, 1992. Entitled "Colorado Springs' Sexually Oriented Business Licensing Ordinance," it established standards for licensing and regulating a broad spectrum of sexually oriented commercial ventures in Colorado Springs. In adopting the Ordinance, the City Council made the following findings: (1) "[such businesses] are frequently used for unlawful sexual activities including prostitution"; (2) "the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens"; (3) "any business which has as its primary purpose the selling, renting or showing of sexually explicit materials which depict or describe specified sexual activities or specified anatomical areas may have a negative impact upon surrounding businesses and residences"; (4) "experience in Colorado Springs and other cities has shown that the location of sexually oriented businesses degrade [sic] the quality of the area of the City in which they are located and cause [sic] a blighting effect upon the City"; and (5) "the City Council desires to control these adverse effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and deter the spread of urban blight...."

The purpose of the Ordinance is stated in section 8-9-101 thereof as follows:

Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. The concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses to protect the health and well-being of the citizens, including the patrons of sexually oriented businesses. Licensing of sexually oriented businesses is a legitimate and reasonable means of ensuring that operators of sexually oriented businesses comply with reasonable regulations and that operators do not knowingly allow their businesses to be used as places of illegal sexual activity or solicitation. There is convincing documented evidence that sexually oriented businesses, because of their nature, have a deleterious effect on both the existing businesses around them and surrounding residential areas, causing increased crime and downgrading of property values. The purpose of this Ordinance is to control adverse effects from sexually oriented businesses and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of the surrounding neighborhoods and deter the spread of urban blight.

The Ordinance defines "sexually oriented business" to mean "an adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, sexual encounter establishment, or other similar business" that features persons appearing in a state of nudity or live performances or photographic reproductions depicting or describing "specified sexual activities or specified anatomical areas." Colorado Springs, Co., Code § 8-9-102 (1992). The Ordinance also contains the following pertinent definitions:

SPECIFIED ANATOMICAL AREAS are defined as:

a. Less than completely and opaquely covered: human genitals, pubic region, buttocks, and female breast below a point above the top of the areola.

b. Human male genitals in a discernibly turgid state even if completely and opaquely covered.

SPECIFIED SEXUAL ACTIVITIES means acts, simulated acts, exhibitions, representations, depictions or descriptions of:

a. Human genitals in a state of sexual stimulation or arousal.

b. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.

c. Intrusion, however slight, of any object, any part of an animal's body, or any part of a person's body into the genital or anal openings of any person's body or into the body of an animal.

d. Cunnilingus, fellatio, anilingus, masturbation, bestiality, lewd exhibition of genitals or excretory function.

e. Flagellation, mutilation or torture for purposes of sexual arousal, gratification, or abuse.

Colorado Springs, Co., Code § 8-9-102 (1992).

Section 8-9-104 of the Ordinance provides that any person operating a sexually oriented business must obtain a license from the licensing officer and describes the qualifications necessary for licensure. Section 8-9-105 of the Ordinance establishes standards and time limits for approval or denial of applications for sexually oriented business licenses. Sections 8-9-106 through -108 of the Ordinance contain requirements for regulation of managers and employees of licensed businesses and authorize periodic inspection of licensed premises. Sections 8-9-109 through -111 of the Ordinance deal with the expiration, suspension, and revocation of issued licenses. Sections 8-9-112 through -121 of the Ordinance set forth minimum age provisions, hours of operation, peep booth regulations, lighting regulations, regulations particular to adult theaters and adult cabarets, regulations concerning the conduct and tipping of employees, adult motel regulations, injunctions, and fees.

In late December 1992, the plaintiffs filed this civil action against the defendants. The plaintiffs claimed, inter alia, that the Ordinance on its face violated federal and state constitutional guarantees of freedom of speech and requested the trial court to enter judgment to that effect and to enjoin the enforcement thereof. 3 The plaintiffs and the defendants filed cross-motions for summary judgment, pursuant to C.R.C.P. 56.

The trial court ultimately entered a three-page judgment in effect declaring three sections of the Ordinance and one section of the Code to be facially unconstitutional and declaring that the other sections of the Ordinance did not violate constitutional principles guaranteeing freedom of expression. 4 Relying on 7250 Corporation v. Board of County Commissioners, 799 P.2d 917 (Colo.1990), and applying the criteria developed by the United States Supreme Court in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968), the trial court concluded that the City had authority to enact the Ordinance, that except for the three sections thereof determined to be unconstitutional the provisions of the Ordinance are content-neutral and restrict expression in a reasonable manner in furtherance of a legitimate governmental interest, that the Ordinance provides reasonable time limits for application and appeal processes, and that the standards established by the Ordinance for suspending or revoking licenses are constitutionally adequate.

II

The defendants contended at oral argument that the plaintiffs lack standing to challenge the facial validity of the Ordinance. We disagree.

Section 8-9-109 of the Ordinance provides that each license expires one year from the date of issuance and may be renewed only by initiation of a new application. This licensing scheme, like the scheme at issue in City of Lakewood v. Plain Dealer Publishing Company, 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), is "sufficiently threatening to invite judicial concern ... [because] even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit...." Id. at 760, 764, 108 S.Ct. at 2145, 2147 (emphasis in original); see also Suburban Video, Inc. v. City of Delafield, ...

To continue reading

Request your trial
18 cases
  • Curious Theatre Co. v. Dept. of Pub. Health
    • United States
    • Colorado Supreme Court
    • 14 d1 Dezembro d1 2009
    ... 220 P.3d 544 ... CURIOUS THEATRE COMPANY, a Colorado non-profit corporation; Paragon Theatre, a Colorado fit corporation; and Theatre13, Inc., a Colorado non-profit corporation, Petitioners ... at 298, 104 S.Ct. 3065; see also City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 297 n. 19 ... ...
  • Colacurcio v. City of Kent
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 8 d2 Dezembro d2 1998
    ... ... only marginally so." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ... F.3d 403 (6th Cir.1997) (six-foot distance requirement); City of Colorado Springs v. 2354, Inc., 896 P.2d 272 (Colo.1995) (en banc) (three-foot); ... ...
  • Brownell v. City of Rochester
    • United States
    • U.S. District Court — Western District of New York
    • 14 d1 Maio d1 2001
    ... 190 F.Supp.2d 472 ... Thomas G. BROWNELL, Barrell of Dolls Saloon, Inc., Plaintiffs, ... CITY OF ROCHESTER, New York, Defendant ... Chuck ... performances that the section is designed to regulate"); Santa Fe Springs Realty Corp. v. City of Westminster, 906 F.Supp. 1341, 1352-53 ... percent of the outstanding stock of the corporation); City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 290 (Colo.1995) ("Because ... ...
  • City of Nyssa v. Dufloth/Smith
    • United States
    • Oregon Court of Appeals
    • 30 d3 Outubro d3 2002
    ... ... See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) ; BSA, Inc ... right to the maximum erotic experience possible); City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 297-98 (Colo 1995) (three-foot ... ...
  • Request a trial to view additional results
4 books & journal articles
  • Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality
    • United States
    • Emory University School of Law Emory Law Journal No. 56-4, 2007
    • Invalid date
    ...(M.D. Fla. 1992) (three-foot); Zanganeh v. Hymes, 844 F. Supp. 1087, 1089 (D. Md. 1994) (six-foot); City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 298 (Colo. 1995) (three-foot); Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154, 168-69 (Wash. 1997) (four-foot); Baby Dolls Topless Saloon......
  • Moral Character of the Liquor Licensee or Applicant
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-2, February 1996
    • Invalid date
    ...(Colo. App. 1975). 14. CRS § 12-47-137(2)(a). 15. Wadlow v. Hartman, 551 P.2d 201 (Colo. 1976). 16. City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (Colo. 1995). The main issues in this case were First Amendment questions of free speech and prior restraints of protected expression. Whet......
  • Regulating Sexually Oriented Businesses in Small Towns: Practical Tips and Preventive Medicine
    • United States
    • Colorado Bar Association Colorado Lawyer No. 29-10, October 2000
    • Invalid date
    ...657 F.2d 94 (6th Cir. 1981). 7. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26 (1990); City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 285 (Colo. 8. Both forms of regulation are permissible. City of Renton, supra, note 4 at 52; Young v. American Mini Theatres, Inc., 427 U.S. 50,......
  • Freedom of Speech and Cyber Threats
    • United States
    • Colorado Bar Association Colorado Lawyer No. 29-7, July 2000
    • Invalid date
    ...versus anti-stalking statute); Hill, supra, note 3 at 1251 (First Amendment versus right to privacy); Colorado Springs v. 2354, Inc., 896 P.2d 272, 293 (Colo. 1995) Amendment versus city ordinance requiring licensing of sexually oriented business); Aurora, supra, note 17 at 306, 311 (Colo. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT