Purple Onion, Inc. v. Jackson

• Decision Date: 31 March 1981
• Docket Number: Civ. A. No. C80-1709A.
• Citation: 511 F. Supp. 1207
• Parties: The PURPLE ONION, INC., a Georgia Corporation, d/b/a the Purple Onion; Lee & M., Inc., a Georgia Corporation, d/b/a Gentlemen's Quarters; International Follies, Inc., a Georgia Corporation, d/b/a Cheetah III Lounge; Western Business Systems, Inc., a Georgia Corporation, d/b/a Rhetts News and Ashley Art Theatre, Plaintiffs, v. Maynard JACKSON, Mayor, City of Atlanta; and Lee Brown, Commissioner, Department of Public Safety, Defendants.
• Court: U.S. District Court — Northern District of Georgia

511 F. Supp. 1207

The PURPLE ONION, INC., a Georgia Corporation, d/b/a the Purple Onion; Lee & M., Inc., a Georgia Corporation, d/b/a Gentlemen's Quarters; International Follies, Inc., a Georgia Corporation, d/b/a Cheetah III Lounge; Western Business Systems, Inc., a Georgia Corporation, d/b/a Rhetts News and Ashley Art Theatre, Plaintiffs, v. Maynard JACKSON, Mayor, City of Atlanta; and Lee Brown, Commissioner, Department of Public Safety, Defendants.

Civ. A. No. C80-1709A.

United States District Court, N. D. Georgia, Atlanta Division.

March 31, 1981.

Glenn Zell, Atlanta, Ga., for plaintiffs.

Gary Walker and Roy Mays, Asst. City Attys., Atlanta, Ga., for defendants.

ORDER

SHOOB, District Judge.

I. INTRODUCTION

In Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Supreme Court upheld as constitutional a Detroit zoning ordinance which provided that adult movie theaters could not locate within 1000 feet of any two other regulated uses.¹ The Court held that the use of the sexually-oriented content of adult movie theaters, adult book stores and certain cabarets as a zoning criterion under the facts in Detroit was not an unconstitutional infringement of First Amendment interests; rather, the Detroit ordinance was a legitimate "time, place, manner" restriction on presumptively protected expression. Since, in Detroit, there was no question of suppression of, or even restriction of access to, this presumptively lawful expression, the ordinance passed constitutional muster. The Court indicated that the situation, and perhaps the outcome, would be quite different, American Mini Theatres, supra, 427 U.S. at 62, and at 72, n.35, 96 S.Ct. 2448, 2453, n.35; see also the opinion of Powell, J., 427 U.S. at 77-79, 96 S.Ct. at 2455-56, "if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech." American Mini Theatres, supra, 427 U.S. at 72, n.35, 96 S.Ct. at 2453. The ordinance challenged here, as applied in Atlanta, presents the different situation referred to by the Supreme Court. Because much of the definitional language in the Atlanta ordinance added to the Detroit ordinance is overbroad, and because at least three features² of the Atlanta ordinance, each and in combination, have the effect³ of greatly reducing public access to presumptively protected expression, the ordinance at issue here must fall.

II. BACKGROUND

This action for declaratory and injunctive relief was filed on October 2, 1980. A hearing on plaintiffs' application for a preliminary injunction was held on October 14, 1980. After several hours of testimony, defendants announced that they would not formally object to the entry of a preliminary injunction. Accordingly, on October 20, 1980, this Court enjoined defendants from enforcing the challenged Atlanta Adult Zoning Ordinance.

Trial on the merits was held from December 1-16, 1980. On January 8, 1981, by order of this Court, two additional exhibits were admitted into evidence. The parties filed their proposed findings of fact and conclusions of law the following week; plaintiffs filed an additional memorandum of law on January 21, 1981. This Court has now considered the testimony, reviewed the voluminous exhibits, including the many maps and photographs, and, pursuant to Fed.R.Civ.P. 52(a), makes the following findings.

III. THE CHALLENGED ORDINANCE

The Adult Entertainment Zoning Ordinance of the City of Atlanta (hereinafter `the ordinance')⁴ was adopted by the City Council on November 1, 1976 and approved by the Mayor on November 4, 1976. Plaintiffs' Exhibit # 1. Citations to portions of the ordinance will be made both to the appropriate section of the original ordinance, and to the pertinent section of Part 16 (Zoning), of the Code of Ordinances of the City of Atlanta, Georgia, as amended.

A. Purpose

(1) The Ordinance Itself. Section 1 of the ordinance is called Finding of Legislative Necessity. These factual determinations and statements of purpose, set out in nine separate paragraphs, are quite similar to those of Detroit in Young v. American Mini Theatres, Inc., 427 U.S. at 54-55, n.6, and 96 S.Ct. at 2444-45, n.6.

The City Council found that Atlanta has become a leading convention center, and that recent commercial development in the city has greatly increased pedestrian and vehicular traffic. As for adult book stores, adult movie theaters, and adult entertainment establishments (hereinafter collectively called `adult businesses,' see Part III.B. of this order, infra), the City Council found that they blight and downgrade property values when located in business districts; cause traffic congestion in already concentrated areas of the city `through the means of taxi cabs'; distract passing motorists through their excessive illumination; require extra police and fire protection from the city; and create excessive noise in the late evening and early morning, causing the surrounding property and those nearby to suffer. In sum, the City Council found that adult businesses have an overall adverse effect on the health and welfare of visitors to the city, citizens of the city and the surrounding neighborhoods.⁵ The Council found that these detrimental effects increased when the adult businesses were concentrated in a particular area. Thus, the City Council found it necessary that adult businesses "be subject to special regulations in order to insure that such uses and the effects thereof will not contribute to the blighting of or the downgrading of the surrounding neighborhood; and this ordinance is enacted for the purposes of regulating the uses of such businesses and so as to prevent the further concentration of such uses in any one area of the City."

(2) City Council Development Committee Minutes. These minutes for October 27, 1976, at page six, Defendants' Exhibit # 73, reinforce the findings and purposes of the entire City Council in adopting the ordinance. The minutes note that adult book stores and movie theaters were removed in committee from the `amortization' provisions still applicable to adult entertainment establishments, see Part III.E. of this order, infra.

(3) Zoning Review Board Minutes. The record of proceedings before the Zoning Review Board from September 21, 1976, pages 14-25, Defendants' Exhibit # 72, represents a wide-open discussion of the Adult Entertainment Zoning Ordinance and the subjects of its sweep. In addition to the ordinance's purposes as expressed above, another purpose for the ordinance was discussed, and that was that the ordinance would help those citizens disgusted by the conduct of these businesses to zone them out of business. See Defendants' Exhibit # 72, at pages 14, 16, 18, 19, and 24. Of further interest are the statements of an associate city attorney, who attended the meeting to represent the position of the Atlanta Law Department. He indicated that the use of the adult zoning ordinance was the "strongest vehicle towards elimination" of adult businesses, and that the City was "hoping for complete eradication" of adult businesses. Defendants' Exhibit # 72, page 21. The city attorney also stated that the effect of the ordinance would be to reduce the number of these establishments.

(4) Note to Ordinance. At the foot of the challenged ordinance is a note of uncertain origin. The note reads as follows.

NOTE: The purpose of this amendment is to make the zoning ordinance conform to the decision of the United States Supreme Court in Young v. American Mini Theatres, Inc., et al. (Decided June 24, 1976) which approved a similar Detroit zoning ordinance only for businesses coming into existence after the effective date of ordinance. The majority opinion in Young strongly implied that the ordinance would have been held unconstitutional, at least insofar as it applied to book stores and theatres (places of lawful speech), if it applied to those existing establishments, by stating:

"The situation would be quite different if the ordinance had effect of suppressing, or greatly restricting access to, lawful speech. Here, however, the District Court specifically found that `(T)he Ordinances do not affect the operation of existing establishments but only the location of new ones.'" (Emphasis added)

Since existing book stores and theatres cannot be suppressed (closed) this proposed amendment changes the zoning ordinance so that it only attempts to suppress (close) existing bath houses.

B. Definitions of Adult Businesses

Section 2 of the ordinance contains definitions of the three forms of adult businesses for the purpose of zoning adult book stores, adult entertainment establishments and adult theaters.

(1) The definition of an adult book store, set out at § 16-1003(56) of the Atlanta Zoning Ordinance, is

any building or structure which contains or is used for the display or sale of books, magazines, movie films, still pictures and any and all other written materials, photographic material, novelties, devices and related sundry items, which are distinguished or characterized by their emphasis on matters depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas", or an establishment with a segment or section devoted to the sale or display of such material....

(1) "Specified Sexual Activities" shall mean:

(a) Acts of human masturbation, sexual intercourse or sodomy or any acts of bestiality.

(b) Fondling or other erotic touching of human genitals, pubic region, buttock or breast of either male or female.

(c) Human genitals in a state of sexual stimulation or arousal.

(2) "Specified Anatomical Areas" shall mean:

(a) Less than completely and opaquely covered: (i) human genitals, pubic region, (ii) buttock, and (iii) female breast below a point immediately above the top of the areola; and

(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(2) An adult entertainment establishment, Atlanta Zoning...