City of Lincoln v. ABC Books, Inc., 89-216

• Decision Date: 14 June 1991
• Docket Number: No. 89-216,89-216
• Citation: 470 N.W.2d 760,238 Neb. 378
• Parties: CITY OF LINCOLN, Nebraska, a Municipal Corporation, Appellee, v. ABC BOOKS, INC., a Nebraska Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 760

470 N.W.2d 760

238 Neb. 378

CITY OF LINCOLN, Nebraska, a Municipal Corporation, Appellee, v. ABC BOOKS, INC., a Nebraska Corporation, Appellant.

No. 89-216.

Supreme Court of Nebraska.

June 14, 1991.

Syllabus by the Court

1. Equity: Appeal and Error. In an action in equity, this court reviews the record de novo, subject to the rule that where credible evidence is in conflict on material issues of fact, this court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another.

2. Constitutional Law: Statutes: Due Process. When a legislative enactment is challenged on vagueness grounds, the issue is whether the two requirements of procedural due process are met: (1) adequate notice to citizens and (2) adequate standards to prevent arbitrary enforcement.

3. Constitutional Law: Statutes: Due Process. Due process requires that an enactment supply (1) a person of ordinary intelligence a reasonable opportunity to know what is prohibited and (2) explicit standards for those who apply it.

4. Constitutional Law. The criteria employed in evaluating language for vagueness embrace flexibility and reasonable breadth, rather than meticulous specificity or mathematical certainty.

5. Appeal and Error. To be considered by the Supreme Court, an error must be assigned and discussed in the brief of one claiming that prejudicial error has occurred.

6. Constitutional Law. Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.

7. Constitutional Law. Protected first amendment speech may be subject to time, place, and manner restrictions if sufficiently justified and narrowly enough drawn.

8. Constitutional Law. The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided (1) the restrictions are justified without reference to the content of the regulated speech, (2) they are narrowly tailored to serve a significant governmental interest, and (3) they leave open ample alternative channels for communication of the information.

9. Constitutional Law: Ordinances. The inquiry for first amendment purposes is not concerned with economic impact; rather, it looks only to the effect of the ordinance upon freedom of expression.

10. Ordinances: Nuisances. Where an ordinance is openly, publicly, repeatedly, continuously, persistently, and intentionally violated, a public nuisance is created.

11. Equity: Injunction. A court of equity may properly afford injunctive relief where there has been a continuing and flagrant course of violations of the law, even though these acts may be subject to criminal prosecution.

12. Injunction: Statutes: Public Health and Welfare: Nuisances. Although acts punishable by fine will not ordinarily be enjoined, this rule does not deny such a remedy in the prevention of public wrongs arising out of repeated violations of a penalty statute which harmfully affects the interests of the public. This rule does not require that such acts create a nuisance, and injunction is properly used for the protection of public rights, property, or welfare, whether or not such acts violate a penalty statute and whether or not they constitute a nuisance.

Douglas L. Kluender and K. Kristen Witter, of Healey, Wieland, Kluender, Atwood, Jacobs & Geier, Lincoln, for appellant.

William F. Austin, Lincoln City Atty., for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

BOSLAUGH, Justice.

This appeal involves the constitutionality of a provision of the Lincoln Municipal Code, § 5.12.175 (created by ordinance No. 14335), governing the interior visibility of viewing booths in picture arcades. The defendant, ABC Books, Inc., appeals from the judgment granting a permanent injunction to the plaintiff, City of Lincoln, enjoining ABC Books from operating picture arcades in violation of the Lincoln Municipal Code.

ABC Books is a Nebraska corporation which operates the Adult Book Store and Cinema X Theatre at 921 O Street in Lincoln, Nebraska. The premises include 33 coin-operated booths in which members of the public pay to view sexually explicit films or videos. All of the booths are "single person" booths, with a floor area approximately 3 by 3 feet. Each booth is enclosed, that is, each booth has a full-length door which closes and locks so that patrons can watch the sexually explicit movies behind closed doors. Patrons may view the movies in two types of booths. There are 20 coin-operated 8-millimeter film booths. In these, the movie is projected onto the inside of the booth door after the customer enters the booth and shuts the door. There are also 13 coin-operated video booths in which customers can view preprogrammed selections on television monitors. The television monitors are positioned on one side of the booth.

On March 10, 1986, the Lincoln City Council enacted ordinance No. 14335, amending chapter 5.12 of the Lincoln Municipal Code to define picture arcades and to regulate the operation of such picture arcades in the city. The relevant sections as amended by the ordinance read:

5.12.010 Definitions....

....

The term "picture arcade" shall mean any place to which the public is admitted wherein one or more coin- or slug-operated or electrically, electronically, or mechanically controlled still or motion picture machines, projectors, or video cassettes are maintained for the purpose of showing still or motion pictures to five (5) or fewer persons per machine at any one time.

....

5.12.175 Operation of picture arcade....

....

(b) No person shall maintain any picture arcade unless the entire interior of such premises wherein the pictures are viewed is visible upon entrance to such premises. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained.

(c) No permittee, his or her employee, agent, partner, director, officer, stockholder, or manager of any picture arcade shall knowingly allow or permit any act of sexual intercourse, sodomy, oral copulation, or masturbation to be committed in the subject picture arcade, or knowingly permit or allow the subject picture arcade to be used as a place in which solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur.

Lincoln Mun.Code §§ 5.12.010 and 5.12.175 (1986).

Lincoln Mun.Code § 5.12.220 (1986) sets out the penalty for violations of the provisions of chapter 5.12:

Any person upon whom a duty is placed by the provisions of this chapter who shall fail, neglect, or refuse to perform such duty, or who shall violate any of the provisions of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in any sum not to exceed one hundred dollars ($100.00) and shall stand committed to the city jail until such fine and costs of prosecution are paid.

The city alleges that the ordinance was passed as a response to complaints that sexual activity was occurring on the defendant's premises. At a public hearing regarding the ordinance, the city's chief of police, Dean Leitner, testified that sexual solicitations were occurring in and around the picture arcades of the premises. He explained that the booths have apertures which allow participants on either side of the wall to engage in sexual activity with one another. The booths, in effect, facilitate anonymous sexual activity.

In spite of the ordinance's promulgation on March 10, 1986, the defendant continues to operate its picture arcades in the same manner. The record reveals that the defendant has been convicted on three separate occasions for violating the ordinance, and yet the arcades continue to be operated with enclosed booths. At trial, police officers testified that the viewing booths located in the picture arcades remain fully enclosed and concealed with doors. Undercover officers testified that illicit sexual activities continue to occur on the defendant's premises. Officers personally observed instances of masturbation, fondling and solicitation of prostitution by patrons on the premises of the store. In addition, officers observed semen, dirty Kleenex, and condoms on the floors of the booths. In sum, the evidence indicates that sexual solicitations, assaults, and indecent exposures occur on a continual basis in and around the picture arcades.

On appeal, the defendant contends that (1) § 5.12.175 (ordinance No. 14335) is unconstitutional because it is (a) vague, (b) overbroad, or (c) a prior restraint upon freedom of expression; (2) the trial court erred in finding that the defendant's fully enclosed booths constituted a nuisance and as such justified the issuance of an injunction; and (3) the trial court erred in failing to grant an injunction prohibiting the city clerk from refusing to issue mechanical amusement device permits to the defendant.

This is an action in equity, and as such, in addressing the issues presented, this court reviews the record de novo, subject to the rule that where credible evidence is in conflict on material issues of fact, this court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another. Sasich v. City of Omaha, 216 Neb. 864, 347 N.W.2d 93 (1984); Grint v. Hart, 216 Neb. 406, 343 N.W.2d 921 (1984).

I. CONSTITUTIONALITY OF ORDINANCE NO. 14335

In passing upon the constitutionality of an ordinance, this court begins with a presumption that the ordinance is valid; consequently, the burden is on the challenger to demonstrate the constitutional defect. City of Lincoln v. Bruce, 221 Neb. 61, 375 N.W.2d 118 (1985); State v. Davison, 213 Neb. 173, 328 N.W.2d 206 (1982).

1. WHETHER THE ORDINANCE IS VAGUE

ABC Books argues that the ordinance is impermissibly vague in violation of the 1st and 14th amendments to the U.S. Constitution. The portion of the ordinance of...