Richland Bookmart, Inc. v. Knox County, Tenn.

• Decision Date: 12 February 2009
• Docket Number: No. 07-6469.,No. 08-5036.,07-6469.,08-5036.
• Citation: 555 F.3d 512
• Parties: RICHLAND BOOKMART, INC. d/b/a Town and Country Bookstore; Knoxville Adult Video Superstore, Inc.; and Greg Turner, d/b/a Raymond's Place, Plaintiffs-Appellants/Cross-Appellees, v. KNOX COUNTY, TENNESSEE, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

555 F.3d 512

RICHLAND BOOKMART, INC. d/b/a Town and Country Bookstore; Knoxville Adult Video Superstore, Inc.; and Greg Turner, d/b/a Raymond's Place, Plaintiffs-Appellants/Cross-Appellees, v. KNOX COUNTY, TENNESSEE, Defendant-Appellee/Cross-Appellant.

No. 07-6469.

No. 08-5036.

United States Court of Appeals, Sixth Circuit.

Argued: December 11, 2008.

Decided and Filed: February 12, 2009.

ARGUED:

Frierson M. Graves, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, Tennessee, for Appellants. Scott D. Bergthold, Law Office of Scott D. Bergthold, Chattanooga, Tennessee, for Appellee.

ON BRIEF:

Frierson M. Graves, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, Tennessee, Michael F. Pleasants, Sr., Pleasants Law Firm, Memphis, Tennessee, Joseph J. Levitt, Jr., Knoxville, Tennessee, for Appellants. Scott D. Bergthold, Bryan Allen Dykes, Law Office of Scott D. Bergthold, Chattanooga, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; KETHLEDGE, Circuit Judge; and THAPAR, District Judge.^*

OPINION

BOGGS, Chief Judge.

Three sexually oriented businesses, Richland Bookmart, Inc., Adult Video Superstore, Inc., and Raymond's Place filed suit to challenge the constitutionality of a Knox County Ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. Plaintiffs attacked several provisions of the Ordinance, on the theory that the Ordinance is unconstitutional as applied to them and on its face. Upon motions by both parties, the district court granted summary judgment in favor of Knox County and denied Plaintiffs' motion for partial summary judgment, with one small exception: the court ordered the severance of two crimes, "racketeering" and "dealing in controlled substances," from the list of crimes that triggered the Ordinance's civil disability provision. Plaintiffs' appeal raises four main issues. First, Plaintiffs claim that the Ordinance is an unconstitutional infringement on First Amendment freedoms that is not justified by adequate evidence that local sexually oriented businesses produce adverse "secondary effects" or that the Ordinance is designed to remedy such effects. Second, Plaintiffs claim that the definitions of "nudity," "semi-nudity," and "adult motel," as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad. Third, they claim that the Ordinance enacts an unconstitutional prior restraint. Fourth, they claim that the Ordinance's regulation of business hours is preempted by Tennessee law. Knox County cross-appeals, arguing that the district court erroneously ordered the severance of "racketeering" and "dealing in controlled substances" from the Ordinance's civil disability provision. With regard to the issues presented by Plaintiffs' appeal, we affirm the district court's decision; with regard to the cross-appeal, we reverse the order to sever.

I

Richland Bookmart, Inc. ("Richland") and Adult Video Superstore, Inc. ("Adult Video") are adult stores that sell and rent books, magazines and videos to adults. Both Richland and Adult Video are "off-site consumption" or "retail only" businesses—they do not operate on-site facilities for viewing of films or for other adult entertainment. Richland has operated for over twenty years; Adult Video opened in 2004. Greg Turner operates Raymond's Place ("Raymond's"), an adult cabaret that provides "adult entertainment to consenting adults," including female dancers performing in the nude or clad in pasties and g-strings.

In the fall of 2004, the Knox County Commission ("County") began to update its regulation of sexually oriented businesses, culminating in Ordinance O-05-2-102 ("Ordinance"). The Ordinance enacted licensing requirements and other regulations applicable to "sexually oriented businesses," which include adult arcades, adult bookstores or adult video stores, adult cabarets, adult motels, adult motion picture theaters, semi-nude model studios, sexual device shops, and sexual encounter centers.

An "adult bookstore or adult video store" is defined as "a commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following: books or [visual representations] which are characterized by their emphasis upon the display of `specified sexual activities' or `specified anatomical areas'." In reaction to a June 29, 2005 decision by the Tennessee Supreme Court, which invalidated a zoning ordinance on the basis of its vague definition of "adult bookstore," see City of Knoxville v. Entertainment Resources, LLC, 166 S.W.3d 650 (Tenn.2005), the County amended its definition of adult bookstore or video store. The amended Ordinance specifies that a "principal business purpose" is defined to mean 35% or more of any one of the following: (a) displayed merchandise, (b) wholesale or (c) retail value of the displayed merchandise, (d) revenues derived from sale or rental, or (e) interior business space (we shall refer to this provision as the "35% threshold"). In addition, (f) a business that "regularly features" the "specified sexual activities" or "anatomical areas" and "prohibits access by minors, because of age, to the premises, and advertises itself as offering `adult' or `xxx' or `x-rated' or `erotic' or `sexual' or `pornographic' material on signage visible from a public right of way," is also defined to have the principal business purpose sufficient to bring it within the scope of the Ordinance.

An adult cabaret is defined as "a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear semi-nude." "Semi-nude or state of semi-nudity" is further defined to mean "the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part."¹

The Ordinance regulates sexually oriented businesses in three general ways: it requires that such businesses and all employees thereof be licensed on an annual basis, Secs. 4-12; it regulates business hours, the manner in which sexually explicit films or videos may be exhibited, and interior configuration requirements, Secs. 13-15; and it prohibits certain activities, Sec. 18. With regard to licensing, the Ordinance provides that a license "shall" be issued to both businesses and employees unless one of the specified conditions is met. One such condition is the applicant's conviction, a plea of guilty or of nolo contendere to a "specified criminal activity," namely "rape, aggravated rape, aggravated sexual assault, public indecency, statutory rape, rape of a child, sexual exploitation of a minor, indecent exposure," "dealing in controlled substances," or "racketeering." Sec. 5(a)(6), (b)(5). A business can also lose its license if it knowingly hires someone who committed one of these specified crimes within the previous five years. Sec. 10.

The Ordinance prohibits nudity and the "sale, use or consumption" of alcoholic beverage on the premises of a sexually oriented business. "Nudity or a state of nudity" is defined to mean "the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola."

In May 2005, Richland and Adult Video filed suit seeking a preliminary injunction, a permanent injunction, and declaratory judgment against the Ordinance. After the Ordinance was amended as noted above and Raymond's motion to intervene was granted, the court denied the County's motion to dismiss. Plaintiffs moved for partial summary judgment, arguing that four provisions of the Ordinance are overbroad and not narrowly tailored, and the County moved for summary judgment in November 2007. On December 17, 2007, the district court denied Plaintiffs' motion and granted the County's motion for summary judgment with one exception: the court ordered that "racketeering" and "dealing in controlled substances" be severed from the Ordinance's definition of "specified criminal activity."

II

We review a district court's grant of summary judgment de novo. Trustees of the Mich. Laborers' Health Care Fund v. Gibbons, 209 F.3d 587, 590 (6th Cir.2000). The decision below may be affirmed only if the pleadings, affidavits, and other submissions show "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, we draw all reasonable inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III

Plaintiffs' first argument attacks the relevance and sufficiency of the evidence relied on by the County to justify the regulation of adult stores selling for off-site consumption only and of stores barely meeting the 35% threshold. Furthermore, Plaintiffs claim to have produced their own evidence that puts the County's factual findings and rationale in sufficient doubt to render summary judgment for the County inappropriate. In order to evaluate the merits of Plaintiffs' first claim, we must first determine how much and what kind of evidence is required to justify a regulation such as the present Ordinance, and how much and what kind of evidence is required to mount a...