City of Portland v. Tidyman

• Citation: 759 P.2d 242,306 Or. 174
• Parties: , 57 USLW 2060 CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. John TIDYMAN and the Flick Bookstore, an assumed business name of Daniel Cossette, Ltd., an Oregon corporation, Defendants, Third-Party Plaintiffs, Respondents on Review, v. HOOVER ENTERPRISES, LIMITED and Albert Krikorian, aka Ara Apregiam, Third-Party Defendants. CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. Betty L. SMITH and Herbert L. Newmark, Defendants, Albert Bedrosian, aka Albert Peterson and Theland, Inc., an involuntarily dissolved Oregon corporation, dba Adult Center Bookstore, Defendants- Respondents on Review. CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. Christ D. MAKAROUNIS and Adele Makarounis, Defendants, C & H Cattle Company, dba Cal's Bookstore, Defendant-Respondent on Review. TC A8305-03194, TC A8305-03190, TC A8305-03192; CA A34453; SC S34556.
• Decision Date: 12 July 1988
• Court: Supreme Court of Oregon

Page 242

759 P.2d 242

306 Or. 174, 57 USLW 2060

CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. John TIDYMAN and the Flick Bookstore, an assumed business

name of Daniel Cossette, Ltd., an Oregon

corporation, Defendants, Third-Party Plaintiffs, Respondents on Review, v. HOOVER ENTERPRISES, LIMITED and Albert Krikorian, aka Ara

Apregiam, Third-Party Defendants.

CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. Betty L. SMITH and Herbert L. Newmark, Defendants, Albert Bedrosian, aka Albert Peterson and Theland, Inc., an

involuntarily dissolved Oregon corporation, dba

Adult Center Bookstore, Defendants-

Respondents on Review.

CITY OF PORTLAND, a municipal corporation, Petitioner on Review, v. Christ D. MAKAROUNIS and Adele Makarounis, Defendants,

C & H Cattle Company, dba Cal's Bookstore,

Defendant-Respondent on Review.

TC A8305-03194, TC A8305-03190, TC A8305-03192; CA A34453;

SC S34556.

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 20, 1988.

Decided July 12, 1988.

Paul C. Elsner, Portland, filed a brief and appeared on behalf of petitioner on review.

Rex Armstrong, Portland, filed a brief and appeared on behalf of respondent on review C & H Cattle Co., dba Cal's Bookstore. Respondents on Review John Tidyman, The Flick Bookstore, Albert Bedrosian, and Theland, Inc. did not appear and did not file briefs.

LINDE, Justice.

In May 1983 the City of Portland brought consolidated actions to enjoin, as a "public nuisance," defendants' operation of so-called "adult bookstores" at locations where a city ordinance bans "adult bookstores" as defined in the ordinance. Each defendant asserted that the ordinance is an invalid restraint on free expression under Article I, section 8, of the Oregon Constitution. The circuit court agreed and entered judgment for defendants in November 1984, and the city appealed. In September 1987 the Court of Appeals, being evenly divided, affirmed the circuit court's decision without opinion, City of Portland v. Tidyman, 87 Or.App. 488, 742 P.2d 1202 (1987), and we allowed the city's petition for review. For the reasons that follow, we affirm the decision of the circuit court.

I. THE PORTLAND ORDINANCE

The ordinance at issue undertakes to deal with "adult businesses" by requiring them to locate at least 500 feet distant from any residential zone or any public or private school and, in some zones, at least 1000 feet from any other adult business. "Adult" in contemporary society and commerce (not to say culture) has come to be equated specifically with sexual conduct and erotic entertainment, and the ordinance includes "adult bookstores" among other "adult businesses" such as theaters, "adult arcades," cabarets, "adult paraphernalia shops," and "relaxation treatment" enterprises that are characterized by an emphasis on nudity or sexual activity. Portland Ordinance No. 155387, Portland Municipal Code § 33.80.030. ¹ The city adopted its cordon sanitaire approach to the sex business in 1983 from a Detroit ordinance that had survived a First Amendment challenge in the United States Supreme Court, although without a majority opinion. Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

Meanwhile, however, this court in State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980), and State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), spelled out an independent analysis under Article I, section 8, Oregon's guarantee of free expression. Article I, section 8, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

Spencer and Robertson and their sequels ² emphasized that the clause is addressed to lawmakers at the time they consider making a law and forbids the enactment of a law directed in terms against any subject of speech, writing, or printing that cannot be shown to fall within an old or modern version of a well-established historical exception that the constitutional guarantees demonstrably were not meant to displace. This analysis was argued before the circuit court and on appeal. In 1987, while the Court of Appeals was considering the appeal, this court, finding no such well-established and demonstrably preserved historical exception for "obscenity," invalidated laws against disseminating obscene material and against telephonic harassment that were written in terms describing the forbidden content of speech or printed material. State v. Henry, 302 Or. 510, 732 P.2d 9 (1987); State v. Ray, 302 Or. 595, 733 P.2d 28 (1987).

Henry and Ray were criminal prosecutions, and the court noted that they did not involve other forms of regulation:

"We do not hold that this form of expression, like others, may not be regulated in the interests of unwilling viewers, captive audiences, minors and beleaguered neighbors. No such issue is before us. But it may not be punished in the interest of a uniform vision on how human sexuality should be regarded or portrayed. We also do not rule out * * * reasonable time, place and manner regulations of the nuisance aspect of such material or laws to protect the unwilling viewer or children. Again, no such issue is before us. However, no law can prohibit or censor the communication itself. In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally considered 'obscene.' "

State v. Henry, 302 Or. at 525, 732 P.2d 9. See also State v. Ray, 302 Or. at 602, 733 P.2d 28 (Linde, J., concurring) (laws might provide a compensatory rather than prohibitory remedy for injuries to "person, property, or reputation," ³ by "abuse" of rights under Article I, section 8.) The city defends its ordinance as the kind of reasonable regulation of the "nuisance aspect" of sexually explicit material in the interests of "minors and beleaguered neighbors" left open in the quoted paragraph.

II. AUTHORITY AND COVERAGE

The city's briefs below and in this court commendably deal with subconstitutional points of city authority and the text of the ordinance before addressing its constitutionality. See e.g., DeFazio v. WPPSS, 296 Or. 550, 555, 679 P.2d 1316 (1984); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 564, 687 P.2d 785 (1984); Carson, "Last Things Last": A Methodological Approach to Legal Argument in State Court, 19 Willamette L Rev 641 (1983).

As to its authority, the city cites a provision of its charter that empowers the city to regulate the "use and management of buildings," Portland City Charter § 2-105(a)(35). This charter authority concerns the physical use, maintenance and management of buildings for various purposes, including merchandising, but not the selective regulation of the kind of printed materials sold by a bookstore. But the next paragraph provides authority

"to regulate, restrain and to provide for the exclusion from the city, or any part thereof, of trades, occupations or businesses which are offensive or may in the opinion of the Council create or constitute a nuisance, and to regulate uses of land and structures within the city."

Portland City Charter § 2-105(a)(36). To construe this paragraph as insufficient to authorize the ordinance before us would unjustifiably narrow the city's powers under its charter. Cf. DeFazio v. WPPSS, supra, 296 Or. at 569-70, 679 P.2d 1316. The charter provides ample authority for Ordinance No. 155387, subject to constitutional limitations.

As to the text, the ordinance restricting the location of "adult businesses" defines an "adult bookstore" to be

"an establishment having, as substantial or significant portions of its merchandise, items such as books, magazines, other publications, films, video tapes, or video disks which are for sale, rent, or viewing on premises and which are distinguished by their emphasis on matters depicting specified sexual activities * * * and/or nudity [as defined elsewhere in the city code.]"

Portland City Code § 33.80.030(A). An obvious issue under the text is whether a "substantial or significant portion" of the merchandise of an establishment that sells films and publications along with noncommunicative materials or that sells some materials covered by the definitions among other, nonerotic films or publications, means "substantial or significant" in isolation or proportionately, and whether it is measured by numbers of items in stock or by their sale or rental value. Defendants stipulate, however, that the ordinance covers their establishments. This brings us to the constitutional issue.

III. CONSTITUTIONALITY

Under Article I, section 8, of the Oregon Constitution, as applied in Henry and Ray, depiction of the "specified sexual activities" or "nudity" incorporated by reference in section 33.80.030(A) could not be outlawed entirely. The city, however, has placed the geographic restriction on "adult businesses" among its planning and zoning ordinances, and it maintains that the restrictions are the kind of "reasonable time, place and manner regulations" that the court did not "rule out" in the quoted passage from Henry.

The ordinance is a business regulation more than a conventional land use ordinance, because the same structure devoted to essentially the same kind of use, retailing reading or viewing materials or showing films, becomes a prohibited use under the ordinance simply because the quantity of its "adult" merchandise increases from a minor to a "substantial" or "significant" portion. Defendants contend that reasonable regulation of the location, physical facilities, or time and manner of operating bookstores cannot discriminate among such stores by the content of the books, periodicals, or other communicative materials they purvey. The city, in turn, argues that its distinction is based not on the content of "adult"...