JANRA ENTERPRISES v. City of Honolulu, 25814.

• Decision Date: 06 June 2005
• Docket Number: No. 25814.,25814.
• Citation: 107 Haw. 314,113 P.3d 190
• Parties: JANRA ENTERPRISES, INC., dba Suzie's Adult Superstore, Plaintiff-Appellant v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee.
• Court: Hawaii Supreme Court

113 P.3d 190

107 Haw. 314

JANRA ENTERPRISES, INC., dba Suzie's Adult Superstore, Plaintiff-Appellant v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

No. 25814.

Supreme Court of Hawai`i.

June 6, 2005.

Earle A. Partington, Honolulu, and Karen A. Essene, on the briefs, for plaintiff-appellant.

Jon M. Van Dyke, on the briefs, for defendant-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.

Opinion of the Court by ACOBA, J.

We hold that Article 39, Revised Ordinances of Honolulu (ROH) §§ 41-39.1 through -39.12, and, more specifically, the provision therein requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business¹ be visible from the booth's entryway, (1) does not violate the right to privacy under article I, section 6 of the Hawai`i Constitution, as applied in State v. Kam, 69 Haw. 483, 748 P.2d 372 (1988), because a right to view adult material in an enclosed booth of a commercial establishment is not a necessary corollary to the established right to possess and view pornographic material in the home, and (2) does not infringe upon the right to free speech under article I, section 4 of the Hawai`i Constitution as applied in State v. Bloss, 64 Haw. 148, 637 P.2d 1117 (1981), inasmuch as (a) in seeking to curtail criminal activity associated with such booths, the ordinance is justified without reference to the protected material viewed within the booths and (b) by allowing panoram customers to continue to view the sexually explicit material in the booths as well as at home, the ordinance leaves open alternative channels of communication.

Because the May 1, 2003 judgment of the first circuit court² (the court) entered in favor of Defendant-Appellee City and County of Honolulu (the City) and against Plaintiff-Appellant Janra Enterprises, Inc., dba Suzie's Adult Superstore (Appellant) is consistent with the foregoing propositions, we affirm the said judgment.

I.

On September 29, 1999, Appellant filed a complaint to declare Article 39 unconstitutional and to enjoin its enforcement on grounds that it violates the rights to freedom of privacy and speech as set forth in the Hawai`i Constitution, article I, sections 4 and 6, respectively.³

Article 39 was enacted on April 30, 1997 as Ordinance 97-11 and became effective on January 1, 1998. On October 1, 1999, the parties stipulated to a temporary restraining order enjoining the City from enforcing Article 39 for six months. On June 22, 2001, the parties entered into a "Stipulation of Facts" (stipulation) in lieu of a trial. The following factual background is based upon this stipulation as well as the uncontested findings of fact by the court.

Appellant, a California corporation, owns and operates a business known as Suzie's (Suzie's) which rents and sells adult videotapes and operates an arcade consisting of twelve panoram⁴ booths. There are two entrances to Suzie's, one by the front door on Kalākaua and the other through a rear door opening into a parking lot. Suzie's employees are generally in the front of the store and monitor the rear entrance via a closed-circuit television camera. Suzie's has twelve booths; eleven contain a monitor showing sexually explicit materials when money is deposited into a slot for a certain time period. The twelfth booth allows clients to view videos rented or bought from the store. Each booth can be completely enclosed by shutting a door, thereby ensuring complete privacy. Suzie's employees strictly enforce its policy of restricting the booths to one person at a time. In addition, Suzie's employs a security guard from 9:00 p.m. to 5:00 a.m. each day to enforce its policies and monitor Suzie's premises to ensure no unlawful activity occurs on the premises. Neither the Honolulu Police Department (HPD) nor other city agencies have received complaints about Suzie's or its booths in the twenty years it has been in Waikīkī.

Article 39 was introduced as Bill 89 in 1995. The City Council enacted Article 39 to address a perceived problem with drug dealing and prostitution in the use of panoram booths. The HPD or other City agencies received complaints concerning panoram businesses in other parts of Honolulu, but not specifically concerning activity in any booths at Suzie's or on its premises. During the City Council's Budget Committee's consideration of the bill on January 16, 1997, Councilmember Yoshimura stated that he had received complaints about "criminal activity" occurring in panoram booths, "including drug dealing and prostitution." In his view, the bill deterred such activities by providing entrance into the booths from a continuous main aisle and allowing an unobstructed line of sight into the booths.⁵

On January 29, 1997, an HPD officer submitted written testimony at the bill's public hearing that downtown panoram businesses have locked doors, which encourage illegal activities. According to the officer, individuals leaving the booths were arrested after exiting with "drug paraphernalia." In addition, the officer related that prostitutes reported the booths were frequently used "to perform their `tricks.'" The officer maintained that the bill would "greatly reduce the use of panoram booths for illegal activity without impacting the intended legal purpose of video viewing." Subsequent to this testimony, the bill passed second reading.

The City Council's Budget Committee discussed the bill again on March 19, 1997. Councilmember Yoshimura explained that attorneys at the prosecutor's office had suggested the bill because drug dealing and prostitution was occurring in the booths. The HPD officer, who submitted written testimony at the January 29, 1997 hearing, submitted the same testimony at the March 19, 1997 hearing. Following the hearing, the Budget Committee passed the bill in Committee Draft 2 form. The January 16, 1997 report of the Budget Committee stated that the "purpose of [Article 39] is to impose restrictions on the panoram business as a means to curtail reported illicit activities taking place within the booths." On April 16, 1997, the City Council passed the bill and on April 30, 1997, the bill was signed into law.

Appellant's application for a panoram business license⁶ was denied because Suzie's agents could not aver that Suzie's complied with all of the licensure requirements in Article 39. Specifically, Suzie's did not comply with § 41-39.8(b),⁷ which requires a panoram's viewing area to be visible and unobstructed. The viewing area of each panoram booth is not visible from the main aisle because it is completely blocked by a door.

If the owners of Suzie's were called to testify, they would have testified as follows:

Suzie's clientele use the panoram booths precisely because a fully enclosed booth provides complete privacy, and that, if the doors were removed, Suzie's would lose virtually all of its panoram clientele. Their customers want complete privacy in which to view the sexually explicit material available in the booths. Their customers do not wish other people to see the type of adult films they are watching because they do not wish to be labeled by virtue of the type of adult films (e.g., homosexual) they enjoy watching. If Suzie's were required to remove the doors from its panoram booths, it would be very difficult for Suzie's staff to ensure that only one person at a time be permitted in each booth.

On March 1, 2002, the court issued its findings of fact, conclusions of law, decision and order based on the stipulation, the parties' memoranda, and oral argument. The court ruled in favor of the City and denied Appellant's request for declaratory and injunctive relief, concluding, inter alia, that Appellant "is not likely to prevail on the merits, that the balance of irreparable damage does not favor the issuance of an injunction, and that the public interest does not support granting injunctive relief." The court found, in pertinent part, as follows:

13. Even if the one-person-per-booth rule were to be enforced rigorously by the owner of a panoram establishment, such enforcement will not necessarily fulfill the City's goals with respect to restricting drug abuses in the panoram booths, because drug abuse can still occur with only one individual in a booth.

14. The parties stipulated for purposes of this litigation that the sexually explicit materials sold, rented, and viewed at Suzie's are presumed to receive protection pursuant to the First Amendment of the United States Constitution and [a]rticle I, [s]ection 4 of the Hawai`i Constitution.

15. By a stipulation filed June 22, 2001, the parties agreed to merge the hearing on the preliminary injunction with the trial on the merits, and thus agreed that the Court's decision at this state of the litigation will be dispositive of the trial on the merits of the dispute.

(Emphasis added.) The court also concluded, in relevant part, as follows:

3. The First Amendment of the United States Constitution and [a]rticle I, [s]ection 4 of the Hawai`i Constitution allow governments to regulate the manner in which views are presented so long as (a) the regulation is not based on the content of the expression, (b) the regulation is substantially related to achieving a significant governmental interest, and (c) the regulation leaves open ample alternative channels of communication. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

4. The City of Honolulu's Article 39 is consistent with these requirements. Article 39 is a content-neutral regulation designed to achieve the important goal of regulating the illegal secondary impacts of the adult entertainment that is available in the enclosed panoram booths in a place of public accommodation. These secondary impacts include illegal drug abuse and prostitution, and Article 39 is substantially related to achieving these interests because the removal of doors from the panoram booths

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