Olympic Drive-In Theatre, Inc. v. City of Pagedale

• Decision Date: 12 May 1969
• Docket Number: DRIVE-IN,No. 53490,No. 1,53490,1
• Citation: 441 S.W.2d 5
• Parties: OLYMPICTHEATRE, INC., a Corporation, Plaintiff-Appellant, v. CITY OF PAGEDALE, a Municipal Corporation, Defendant-Respondent
• Court: Missouri Supreme Court

Page 5

441 S.W.2d 5

OLYMPIC DRIVE-IN THEATRE, INC., a Corporation, Plaintiff-Appellant, v. CITY OF PAGEDALE, a Municipal Corporation, Defendant-Respondent.

No. 53490.

Supreme Court of Missouri, Division No. 1.

May 12, 1969.

Wion, Burke & Boll, Clayton, for defendant-respondent.

Richard Wolff, St. Louis, for plaintiff-appellant.

SEILER, Judge.

In 1961 plaintiff corporation built its drive-in theatre on a 10 or 11 acre tract in the southeast corner of St. Charles Rock Road and Kingsland Avenue in Pagedale, a city of the fourth class, population 5,106, in St. Louis County. ¹ There is a residential area west of the drive-in. There is industrial property on the south and the Wabash Railway tracks are on the east and north. The 80 feet by 40 feet movie screen was located in the southeast corner of the tract, some 1,200 feet from the intersection. The drive-in was built with redwood screening fences 6 feet high along the perimeter on both streets, but nevertheless all or portions of the upper part of the screen could be seen from St. Charles Rock Road (which was about 30 feet higher than the base of the screen) up to within 200 feet or so east of the intersection, and from Kingsland Avenue at points 800 feet or more south of the intersection. The screen was visible from the front yards and porches of some of the residences on the west side of Kingsland, to varying degrees, depending upon the season and foliage. The city officials testified plaintiff's manager told them he was going to show first-run films, which they took to mean family-type movies, but that soon 'adult' or 'art' movies were being shown, with occasional westerns, horror shows and comedies.

The aldermen began receiving complaints, which reached a peak in 1965. There was one board of aldermen meeting attended by about 50 residents and a protest meeting in the high school attended by around 900 people. The board was under considerable pressure to do something about the drive-in. At the September 28, 1965 board meeting, the then mayor stated the city would do everything it could to build up a case against the drive-in, that 'either they straighten up or go out of business'. One alderman, who later became mayor, said as far as he was concerned, the theatre's current license would not be renewed upon expiration. There is a mass of testimony in the record about complaints, some based on personal knowledge and others not. Much of the testimony was received by the trial court on the theory that it represented legislative research done by the board in connection with the ordinances subsequently adopted. In summary, the complaints to the aldermen were from two groups: those living along the west side of Kingsland (and city officials who made observations for purposes of evidence) who complained about noise, dust, cars parked in front of their houses with the occupants watching the pictures and throwing beer cans in their yards, increased traffic, and instances of nudity or semi-nudity on the screen which they could see from their homes and which youngsters could see from the street or the yards. These people had personal knowledge of what they complained about. The other group was those who lived elsewhere, some outstate, and who attended meetings sponsored by committees and signed petitions protesting against the movies shown. Most of these had little or no personal knowledge of what they complained about.

There was no testimony as to what the plot or story was of any of the movies where the nude or semi-nude scenes were observed or what their connection was with the picture as a whole. Some of the scenes observed were evidently of a nudist colony, because they showed men, women, and children playing volleyball.

In December 1965, and January 1966, Pagedale passed four ordinances which plaintiff attacked by the declaratory judgment proceeding now before us, contending the ordinances were designed to put it out of business and were unconstitutional in various respects.

The first ordinance, no. 317, was an amendment to the original drive-in theatre ordinance passed in 1951. The amendment provided that any drive-in theatre license could be revoked or suspended by the mayor, after notice and hearing, for several causes, including the one under attack here, to-wit, conduct of the business 'so as to constitute a nuisance by reason of noise or immoral activity on the premises'.

The second ordinance, no. 318, amended the drive-in ordinance to provide that the screen must be located so that 'the pictures projected thereon are not visible from any public highway, street, or thoroughfare', or, alternatively, that the licensee 'provide a wall or fence of adequate height to conceal the pictures projected on the screen from view on any public highway, street, or thoroughfare'. There was no 'grandfather' or exemption clause for drive-ins already in existence. The evidence was it would cost plaintiff $252,000 to relocate its screen where it could not be seen from the highway, which would involve reversing the layout of the drive-in and substantial changes in the configuration of the ground, or $260,000 to $280,000 if plaintiff took the alternative of fencing.

The third ordinance, no. 320, levied a tax of 5% of the admission price on each customer of various classes of amusement businesses, to be collected by the operator. Off all the classes named, the only business in operation in Pagedale which fell into any of the classes was the plaintiff's. The ordinance was declared invalid by the trial court and has dropped out of the case because the city did not appeal.

The fourth ordinance, no. 322, further amended the drive-in theatre ordinance by prohibiting operation of the theatre when the temperature was 45 or lower, unless at least 75% 'of the parking spaces for automobiles therein are equipped with in-car heaters'. Plaintiff's evidence was it would cost $111,800 to comply with the ordinance. A completely new electrical system would be needed for the added load, in addition to the heaters. As opposed to this the city offered the admission of plaintiff's manager that it would cost $100 per car for heaters. This would amount to $65,000.

The mayor testified the first two ordinances were adopted as result of the complaints received by the board, but that the last two were not.

The trial court held the first, second, and fourth ordinances were valid and applicable to plaintiff. The city has suspended enforcing the ordinances pending the outcome of this litigation.

As to the first ordinance, no. 317, the portion under attack is too vague and indefinite to be valid. No one can tell by what standards the mayor is to decide whether activity on the premises was immoral. The mayor can make these words mean just what he wants them to mean. The mayor might consider going to a drivein theatre on a Sunday as immoral activity. There is no specification as tho whose immoral activity is to be judged. Unless the theatre operator had a watchman or a closed circuit television system for each vehicle, there would be no way the operator could know what the occupants of the cars were doing while the movie was on. Yet under the ordinances the mayor might see fit to regard the activity of patrons as ground for revocation. The ordinance would permit the mayor to conclude that any particular movie or some portion thereof was a form of immoral activity on the premises and accordingly cause for revocation of the license. See State v. Furio, 267 N.C. 353, 148 S.E.2d 275, where the court held invalid as too vague and indefinite an ordinance prohibiting any movie screen visible from the street on which any nude or semi-nude pictures were projected which were 'vulgar, indecent or offensive to the public morals'. The fact that he is the mayor and an elective official does not change the fact that the ordinance gives him an arbitrary power without any definite standard or rule for his guidance. Ordinances "* * * should not be so worded as to leave...