Consolidated City of Indianapolis v. Cutshaw

• Decision Date: 03 January 1983
• Docket Number: No. 1-1281A355,1-1281A355
• Citation: 443 N.E.2d 853
• Parties: CONSOLIDATED CITY OF INDIANAPOLIS, City Controller's Office, and Fred L. Armstrong, Appellants (Defendants Below), v. Sherri CUTSHAW, et al., Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 853

443 N.E.2d 853

CONSOLIDATED CITY OF INDIANAPOLIS, City Controller's Office, and Fred L. Armstrong, Appellants (Defendants Below), v. Sherri CUTSHAW, et al., Appellees (Plaintiffs Below).

No. 1-1281A355.

Court of Appeals of Indiana,

First District.

Jan. 3, 1983.

John P. Ryan, Mark Dall, Jane Seigel, City-County Legal Div., Indianapolis, for appellants.

Franklin I. Miroff, Ancel & Miroff, P.C., Richard Kammen, McClure, McClure & Kammen, Indianapolis, for appellees.

ROBERTSON, Judge.

The defendant-appellant City of Indianapolis (City) appeals from the granting of summary judgment in a cause for declaratory judgment brought by the plaintiffs-appellees which is comprised of massage parlor owners and operators, an adult theater owner, and adult bookstore owners. The trial court found that the City's Zoning Ordinance 76-AO-2 was constitutionally deficient in a number of particulars.

We reverse.

On September 13, 1976, the City-County Council of Indianapolis and Marion County, Indiana, passed Special Exceptions Zoning Ordinance 76-AO-2 which created a "Class 1 Regulated Commercial Use". The purpose of the ordinance ¹ was to create a 500 foot space between specified zoning districts and so-called adult establishments and amusement arcades. The particular Class 1 Regulated Uses under scrutiny in this appeal are defined in the ordinance as:

MASSAGE PARLOR, SERVICE OR FACILITY (excepting any therapeutic, medical or surgical services or facilities of a regularly licensed hospital or dispensary, or the professional services of a physician, osteopath or chiropractor duly registered with and licensed by the state).

ADULT BOOKSTORE: or similar adult facility for the display, distribution, barter, rental or sale of printed matter, pictures, films, graphic or other materials, including but not limited to ADULT "MUSEUM".

ADULT THEATER; ADULT AMUSEMENT, RECREATION OR ENTERTAINMENT CENTER OR FACILITY (except those establishments which only infrequently present such films, theatrical productions, performances, recitals, displays, printed matter or other entertainment as would require the exclusion of minors pursuant to state law for reasons other than the sale or consumption of alcoholic beverages on the premises).

The ordinance required that a Class 1 Regulated Use had to apply for and be granted a Special Exception by the Board of Zoning Appeals. The special exception would be granted upon a determination by the Board that:

a. The proposed use will not be injurious to the public health, safety, morals, convenience or general welfare;

b. The perimeter of the subject lot is not located within five hundred (500) feet of any residential ZONING DISTRICT: HISTORIC PRESERVATION ZONING DISTRICT: MARKET SQUARE ZONING DISTRICT: PARK (PE-1 or PE-2) ZONING DISTRICT: UNIVERSITY QUARTER ZONING DISTRICT: SPECIAL USE ONE (SU-1 CHURCHES), SPECIAL USE TWO (SU-2 SCHOOLS), SPECIAL USE THIRTY-SEVEN (SU-37 LIBRARY) OR SPECIAL USE: THIRTY-EIGHT (SU-38th COMMUNITY CENTER) ZONING DISTRICT: or the perimeter of any public or private school site.

c. The proposed use will not injure or adversely affect the adjacent area or property values therein; and

d. The proposed use will be consistent with the character of the DISTRICT, land use authorized therein and the metropolitan comprehensive plan.

The regulated uses were also required to comply with any other applicable requirements of local zoning ordinances. The ordinance also contained an amortization clause requiring the regulated uses be brought into compliance on or before the 1st day of January, 1978. The ordinance definition of "adult" is prohibited by state law from being open to the general public and, pursuant to such law, excluding any minor (for reasons other than the sale or consumption of alcoholic beverages on the premises) from the customers, patrons, clients and persons to whom the sales, services or facilities of the use are offered or available, or from its premises.

Lastly, the ordinance contained a severability clause which stated that any portion of the ordinance found to be unconstitutional shall not affect the remainder of the ordinance.

A number of massage parlor owners and operators affected by the ordinance filed a cause of action seeking a declaratory judgment on the constitutionality of the ordinance and injunctive relief. Thereafter, additional intervening plaintiffs whose interests included adult theaters and bookstores were added to the suit. Eventually, the case was submitted for summary judgment on the plaintiffs-appellees' motions. The trial court held, in applicable part:

Comes now the Court and having taken this matter under advisement and having reviewed the evidence and having considered the arguments of counsel now grants the plaintiff's Motion for Summary Judgment and the Court finds that the Marion County Special Exception Ordinance # 76-AO-2 is unconstitutional as relates to the First Amendment to the Constitution of the United States of America in that the ordinance is violative of the First and Fourteenth Amendments to the United States Constitution in that the ordinance suppresses, censors and otherwise attempts to ban 'adult' businesses from the City of Indianapolis regardless whether their stock in trade is protected under the freedoms of speech and of the press which is tantamount to a prior restraint.

Further the Court finds that the Zoning Ordinance constitutes an impermissible "prior restraint" upon the freedoms of speech and press and furthermore denies the general public of their "right to access" to such communication in violation of the First and Fourteenth Amendments to the United States Constitution.

Further the Court finds that the Ordinance unconstitutionally denies 'equal protection of the laws' in violation of the Fourteenth Amendment to the Constitution of the United States.

Further the Court finds that the Ordinance is repugnant to Fifth and Fourteenth Amendments to the United States Constitution and contrary to the Constitution of the State of Indiana is that it constitutes a 'taking' of vested property rights without due process of law.

Further the Court finds that the ordinance is void as being retroactive in violation of the First and Fourteenth Amendments to Article 1, Section 10 of the Constitution of the United States.

The issues presented by the City in appealing from this summary judgment are:

1. Whether the ordinance constitutes an unlawful prior restraint on protected speech;

2. Whether the ordinance denies equal protection of the laws;

3. Whether certain terms of the ordinance are unconstitutionally vague,

4. Whether the ordinance is overbroad;

5. Whether the amortization provisions in the ordinance are a taking of vested property rights without due process of law; and

6. Whether the ordinance impairs the obligation of contracts.

Initially, a survey of the appropriate ground rules in the appellate review of an appeal involving a summary judgment is appropriate. Summary judgment may be granted only if all the material on file shows that there was no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Carrell v. Ellingwood, (1981) Ind.App., 423 N.E.2d 630. A fact is material if it is decisive of either the action or a relevant secondary issue. Lee v. Weston, (1980), Ind.App., 402 N.E.2d 23. It cannot and should not be used as an abbreviated trial. Podgorny v. Great Central Insurance Company (1974) 160 Ind.App., 244, 311 N.E.2d 640. The trial judge may not weigh the evidence in a summary judgment proceeding. Even where the facts are undisputed, the ability to draw from them conflicting inferences which alter the outcome, will make summary judgment inappropriate. Carrell, supra. In reviewing the propriety of a summary judgment, the facts alleged by the party opposing the motion must be taken as true. Boswell v. Lyon, (1980) Ind.App., 401 N.E.2d 735. Even if the trial judge believes the proponent of the motion will prevail at trial, or where he believes the likelihood of recovery is improbable, such are not the basis for summary judgment. Carrell, supra. In reviewing the granting of a summary judgment, this court applies the same standard as that applied by the trial court. Richards v. Goerg Boat & Motors, Inc., (1979) Ind.App., 384 N.E.2d 1084.

Other general observations relating to the constitutional questions raised in this appeal are: Constitutional rights are personal and the court will consider only allegations of unconstitutionality in a particular fact situation which the plaintiff has brought to court. State v. Baysinger, (1979) Ind., 397 N.E.2d 580. ² Courts are permitted to reach constitutional questions only when such determination is absolutely necessary. Petition of Ackerman, (1980) Ind.App., 409 N.E.2d 1211. Abstract assertions that someone's rights are impaired are not sufficient to raise constitutional issues. Phillips v. Stern, (1969) 145 Ind.App. 628, 252 N.E.2d 267. Courts will not examine constitutional questions as a matter of mere exercise or academic interest. Garcia v. Slabaugh, (1974) 159 Ind.App. 631, 308 N.E.2d 714.

We stress the foregoing rules because, in our opinion, the quantity and quality of the facts revealed in the record in support of, or in opposition to, summary judgment can charitably be characterized as sparse.

The City's first issue is predicated upon the question of whether the ordinance constitutes an unlawful prior restraint on protected speech. We are compelled to note substantial differences in the manner and means of the applicability of First Amendment guarantees to the parties. We find that those appellees representing massage parlors cannot avail themselves of First Amendment rights.

"Furthermore, to the extent that the plaintiffs' attack on the Code's massage-related provisions is grounded upon any alleged infringement of first amendment rights of expression, that attack is frivolous. In this context,...