Hart Book Stores, Inc. v. Edmisten

• Decision Date: 12 April 1978
• Docket Number: and 78-01-Civ-5.,No. 77-387-Civ-5,77-388-Civ-5,77-76-Civ-3,77-397-Civ-5,78-14-Civ-5,77-387-Civ-5
• Citation: 450 F. Supp. 904
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: HART BOOK STORES, INC., et al., Plaintiffs, v. Rufus EDMISTEN, etc., et al., Defendants. TRI-STATE NEWS, INC., et al., Plaintiffs, v. Rufus EDMISTEN etc., et al., Defendants. Roger FEHLHABER, d/b/a Adult Book Store, et al., Plaintiffs, v. Edward W. GRANNIS, Jr., et al., Defendants. Larry Gene MOORE, d/b/a E & M Enterprises, Plaintiffs, v. Rufus EDMISTEN et al., Defendants. Thomas PAGE d/b/a Players Book Store, et al., Plaintiffs, v. Rufus EDMISTEN et al., Defendants. CAMERA'S EYE, INC., Plaintiff, v. Rufus EDMISTEN et al., Defendants.

450 F. Supp. 904

HART BOOK STORES, INC., et al., Plaintiffs, v. Rufus EDMISTEN, etc., et al., Defendants.

TRI-STATE NEWS, INC., et al., Plaintiffs, v. Rufus EDMISTEN etc., et al., Defendants.

Roger FEHLHABER, d/b/a Adult Book Store, et al., Plaintiffs, v. Edward W. GRANNIS, Jr., et al., Defendants.

Larry Gene MOORE, d/b/a E & M Enterprises, Plaintiffs, v. Rufus EDMISTEN et al., Defendants.

Thomas PAGE d/b/a Players Book Store, et al., Plaintiffs, v. Rufus EDMISTEN et al., Defendants.

CAMERA'S EYE, INC., Plaintiff, v. Rufus EDMISTEN et al., Defendants.

Nos. 77-387-Civ-5, 77-388-Civ-5, 77-76-Civ-3, 78-14-Civ-5, 77-397-Civ-5, and 78-01-Civ-5.

United States District Court, E. D. North Carolina, Raleigh and Fayetteville Divisions.

April 12, 1978.

William E. Seekford, Towson, Md., James C. MacRae, MacRae, MacRae & Perry, Fayetteville, N.C., for plaintiffs in No. 77-76-Civ-3, Fayetteville Division.

Edwin M. Speas, Jr., Robert P. Gruber, Special Deputy Attys. Gen., Marvin Schiller, Asst. Atty. Gen., Raleigh, N.C., for defendants in No. 77-76-Civ-3, Fayetteville Division.

Michael K. Curtis, Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N.C., for plaintiffs in No. 77-387-Civ-5, Raleigh Division.

Charles A. Lloyd, Michael K. Curtis, Smith, Patterson, Follin, Curtis, James & Harkavy, Raleigh, N.C., for plaintiffs in No. 77-388-Civ-5, Raleigh Division.

Thomas F. Loflin, III, Loflin & Loflin, Durham, N.C., for plaintiffs in Nos. 77-397-Civ-5 and 78-14-Civ-5, Raleigh Division.

Everette L. Wooten, Jr., Jones & Wooten, Kinston, N.C., for plaintiffs in No. 78-01-Civ-5, Raleigh Division.

MEMORANDUM OF DECISION

DUPREE, District Judge.

Plaintiffs in this consolidated action challenge the constitutionality of 1977 House Bill 961, codified as N.C.G.S. §§ 14-202.10— 202.12, "An Act to Regulate the Number of Adult Establishments in Any One Building." A hearing was conducted in these cases on February 8, 1978. The parties have stipulated that the cases shall be decided on their merits based on this hearing; defendants conceded at oral argument that all plaintiffs are sufficiently threatened by prosecution under the Act to have standing and that abstention, save in the case of plaintiff Fehlhaber in No. 77-76-Civ-3, is not required. A complete listing of the plaintiffs and defendants is found at defendants' proposed findings of fact Nos. 2 and 3, which are herein incorporated.

On July 1, 1977 the North Carolina Legislature passed House Bill 961, "An Act to Regulate the Number of Adult Establishments in Any One Building." The Act became effective January 1, 1978 and was codified in the criminal law chapter of the North Carolina General Statutes at N.C. G.S. §§ 14-202.10 through 14-202.12.

The Act provides: "No building, premises, structure, or other facility that contains any adult establishment shall contain any other kind of adult establishment. No building, premises, structure, or other facility in which sexually oriented devices are sold, distributed, exhibited, or contained shall contain any adult establishment." N.C.G.S. § 14-202.11. "Adult establishment" includes "adult bookstore," "adult motion picture theatre," "adult mini-motion picture theatre" and "massage business," as defined in N.C.G.S. §§ 14-202.10(1), (2), (3), (4) and (6). To constitute an "adult" bookstore or theater, the "preponderance" of the material offered for sale or display in the establishment must be distinguished or characterized by an "emphasis" on matter which has to do with "specified sexual activities" or "specified anatomical areas" as defined in the statute. Violation of the section of the statute which prohibits any adult establishment from being contained in the same building as another adult establishment, or from being in the same building where sexually oriented devices are sold, distributed, exhibited or contained, is a criminal misdemeanor and may result in punishment of a three-month term of imprisonment, a fine up to $300.00, or both for a first offense, and a six-month prison sentence, a fine not to exceed $500.00, or both for subsequent convictions. N.C.G.S. § 14-202.12.

Plaintiffs assert that the statute falls short of a number of constitutional standards: that it violates equal protection, chills the exercise of protected expression, constitutes an invalid prior restraint, impermissibly omits a scienter requirement, infringes on the right to privacy and is void for vagueness. Only the equal protection claim will be resolved, as the court thinks it clear that defendants have provided insubstantial justification for the significant intrusion the statute makes into businesses that choose to deal in sexually-oriented yet constitutionally protected materials.

The statute regulates the distribution of books and movies that share a common orientation but admittedly are not all individually obscene. Thus they are entitled to undiluted First Amendment protection. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), (Powell, J., concurring, and Stewart, Brennan, Marshall and Blackmun, JJ., dissenting). Unlike the ordinance in Young, which gave zoning exceptions to existing establishments, the statute here requires bookstore and theater owners with substantial investments in their current buildings and modes of operation radically to alter their manner of doing business. The infringement of First Amendment interests is substantial, and it is incumbent on defendants to establish a compelling justification.

At the outset the court notes that the rationale employed by Justice Powell in his Young concurrence to sustain the ordinance there is not available to defendants.¹ This is not a zoning case "presenting an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent." Young, supra, at 73, 96 S.Ct. at 2453. "Zoning . . connotes a non-particularized legislative process in which rules are promulgated and land areas designated on a general, prospective basis." Bayou Landing, Ltd. v. Watts, 563 F.2d 1172, 1175 (5th Cir. 1978). In essence it is the geographical placement of various uses based on their effect on the surrounding environment. Such was the case in Detroit, where an historic anti-skid row ordinance geographically dispersing pool halls, used furniture stores and the like throughout the city was amended to include adult-oriented establishments. Justice Powell relied on the broad powers of a municipality to regulate land use to sustain the ordinance; critical to his resolution of the issue was the fact that:

"It is clear both from the chronology and from the facts that Detroit has not embarked on an effort to suppress free expression. The Ordinance was already in existence, and its purposes clearly set out, for a full decade before adult establishments were brought under it. When this occurred, it is clear — indeed it is not seriously challenged — that the governmental interest prompting the inclusion in the ordinance of adult establishments was wholly unrelated to any suppression of free expression." Young, supra, 427 U.S. pp. 80-81, 96 S.Ct. at 2457.

This statute bears no resemblance to a land-use regulation. It allows adult establishments to exist wherever the proprietors choose, whether side by side or widely distributed. Instead, it regulates the types of merchandise available in such a place. No other types of...