Silver Video USA, Inc. v. Summers, No. M2004-00794-COA-R3-CV (Tenn. App. 11/1/2006)
| Decision Date | 01 November 2006 |
| Docket Number | No. M2004-00794-COA-R3-CV.,M2004-00794-COA-R3-CV. |
| Parties | SILVER VIDEO USA, INC., ET AL. v. PAUL G. SUMMERS, ET AL. |
| Court | Court of Appeals of Tennessee |
Appeal from the Circuit Court for Davidson County; No. 03C-3488; Walter C. Kurtz, Judge.
Judgment of the Circuit Court Affirmed.
John E. Herbison, Nashville, Tennessee, for the appellants Silver Video USA, Inc., et al.
Steven A. Hart, special counsel for the appellees, Paul G. Summers, Attorney General and Reporter, et al.
Patricia J. Cottrell, J., delivered the opinion of the court, in which William B. Cain and Frank G. Clement, Jr. JJ., joined.
Plaintiffs challenge the trial court's determination that the Tennessee Adult Oriented Establishment Act is constitutional under Article 1, Section 19 of the Tennessee Constitution. We affirm.
In 1995 the General Assembly passed Tennessee's Adult Oriented Establishment Act, Tenn. Code Ann. § 7-51-1401 et seq. ("Act"), that limits the hours and days during which adult establishments can be open and requires elimination of closed viewing booths at such establishments. The plaintiffs, Silver Video USA, Inc., ("Silver Video") and Jenna's Adult Toy Box, Inc. ("Jenna's Toy Box"), with their respective majority shareholders, Frank Cross and Scotty Cross, filed suit for injunctive relief and a declaratory judgment asking that the Act be held unconstitutional under the Tennessee Constitution. The suit named as defendants the Tennessee Attorney General, the District Attorney General for the Twentieth Judicial District, and the Metropolitan Government of Nashville and Davidson County Police Chief. After considering cross motions for summary judgment, the trial court upheld the validity of the Act. Plaintiffs appealed.1
Silver Video and Jenna's Toy Box challenge only the restriction in the Act regarding hours and days of operation. It is agreed that neither establishment operates or desires to operate viewing booths on-site as prohibited by the Act. With regard to hours and days of operation, the Act provides that an "adult-oriented establishment" can only do business between 8:00 a.m. and midnight on Monday through Saturday and may not be open at all on Sundays or legal holidays. Tenn. Code Ann. § 7-51-1402(a).2 The Act defines "adult-oriented establishment" as a business that offers "as its principal or predominant stock or trade" sexually-oriented material, devices, or paraphernalia. Tenn. Code Ann. § 7-51-1401(4).3 The Act then predictably defines "sexually-oriented material" as written matter or film that depicts particular types of sexual activity.4 Violation of the Act as a first offense is a Class B Misdemeanor and a Class A misdemeanor thereafter. Tenn. Code Ann. § 7-51-1404.5 The Act exempts live adult stage entertainment from its hours of operation restrictions. Tenn Code Ann. § 7-51-1405.
The material facts of this controversy are not in dispute and have been agreed upon by the parties. Silver Video and Jenna's Toy Box acknowledge that they offer for sale and rent "sexually-oriented material" as defined by the Act together with sexual devices and paraphernalia.6 Silver Video and Jenna's Toy Box agreed that "all or substantially all" of their adult videos, DVDs and magazines meet the Act's definition of "sexually-oriented material." Both businesses agree that the sexually-oriented material is "prominently" displayed at their stores. While Silver Video also sells jewelry and tobacco, historically income from Silver Video was "primarily from adult-oriented material." While Jenna's Toy Box also sells tobacco, which was added to comply with Metropolitan zoning codes, the "bulk of income" from Jenna's Toy Box is from XXX-rated movies. Jenna's Toy Box offers 3000 "mainstream regular movies" for rent, yet these are priced high so as to avoid restocking and are placed in the rear of the store so one would first pass the 6,500 XXX-rated videos and 12,000 "adult" VHS and DVDs in order to locate the "mainstream regular movies." Silver Video offers for sale only 110 regular movies. Ninety-five (95%) percent of Silver Video's DVD and DHS stock is XX or XXX-rated materials. When Jenna's Toy Box opened in January of 2004, it was located between two other adult establishments to take advantage of the customer traffic generated by these two businesses. Silver Video added adult toys and lotions to attract late night customers, including people leaving bars and strip clubs "after getting sexually aroused." Both establishments are restricted to adult members of the public.
After passage of the Act, law enforcement officials in Metropolitan Nashville and Davidson County declined to enforce the Act. During this period, the constitutionality of the Act under the United States Constitution was being litigated by other parties in federal court. (See Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998) ("Richland I") and Richland Bookmart, Inc., v. Nichols, 278 F.3d 570 (6th Cir. 2002) ("Richland II", cert. den. 537 U.S. 823, 123 S.Ct. 109 (2002)). After the Sixth Circuit Court of Appeals upheld the constitutionality of the Act in Richland Bookmart, Inc. I & II, and certiorari to the United States Supreme Court was denied, in July of 2003 Metro officials notified Silver Video and Jenna's Toy Box by letter that enforcement of the Act would become effective August of 2003. Since receiving notice of enforcement, neither establishment has been cited for failure to comply with the Act. The Metro Police Department has issued citations to others for violation of the Act after the August 2003 enforcement notice. Before receiving the August letter regarding enforcement of the Act, Silver Video was open past midnight, Sundays and legal holidays. Jenna's Toy Box opened after the August 2003 notice letter, but its owner testified that it would be open after midnight and on Sundays and legal holidays but for the Act.
Since the Act was found constitutional under the United States Constitution in Richland Bookmart I and II, plaintiffs brought this suit to challenge the Act under the Tennessee Constitution. Specifically, Silver Video and Jenna's Toy Box alleged that the Act, both facially and as applied to them, violates the free expression guarantee of Article I, Section 19, the equal protection and due process guarantees of Article I, Section 8, and various other provisions of the Tennessee Constitution relative to the fundamental right of privacy.
The trial court upheld the constitutionality of the Act upon cross motions for summary judgment. As a preliminary matter, the trial court found that there is "no doubt" that Silver Video and Jenna's Toy Box have as their principal or predominant business the sale of sexually-oriented material thus bringing them within the purview of the Act. While the trial court acknowledged that the protections of the Tennessee Constitution may be more expansive than the United States Constitution, the trial court adopted the rationale of the Sixth Circuit interpreting the rights of free speech, equal protection, and due process in the United States Constitution in Richland Bookmart I and II as being consistent with those rights protected by the Tennessee Constitution. With regard to plaintiff's allegations about a right of privacy arising from the Tennessee Constitution, the trial court found that "curtailing the hours of operation of adult entertainment establishments" does not implicate any privacy issues. Finally, the trial court found scienter was an element of an offense under the Act pursuant to Tenn. Code Ann. § 39-11-102(b) and § 39-11-301(c).
Plaintiffs appeal, claiming the Act is constitutionally flawed because it is an impermissible content-based restriction on free speech and because the Act does not require scienter as an element of an offense. First, plaintiffs argue that the Act is a content-based restriction on the right of free speech under Article I, Section 19 of the Tennessee Constitution which does not meet the applicable strict scrutiny criteria and is thus unconstitutional. Alternatively, plaintiffs argue that the Act is nevertheless unconstitutional because it is overbroad and vague. Second, plaintiffs argue that scienter is a constitutionally required element of any violation of the Act and the Act is constitutionally flawed because it fails to include scienter as an element of the offense. According to plaintiffs, the scienter provisions of Tenn. Code Ann. § 39-11-102(b) and § 39-11-301(c) may not be applied to the Act.
Plaintiffs' principal contention on appeal is that the Act is a content-based restriction on expression that violates the plain language of Article I, Section 19 of the Tennessee Constitution guaranteeing that "every citizen may freely speak, write and print on any subject" (emphasis added).
Plaintiffs' argument follows a fairly logical sequence. The "sexually-oriented material" i.e., the magazines, videos and books sold by plaintiffs is not a recognized exception to the protection of Article I, Section 19 and is therefore material protected by Article I, Section 19. According to plaintiffs, since the Act regulates only material pertaining to sex, then it is a content-based restriction on free expression which must be analyzed under the exacting strict scrutiny standard and is presumptively a violation of Article I, Section 19.
The defendant government officials, on the other hand, argue that under the "secondary effects doctrine," the Act is not to be treated as a content-based restriction on free speech, but instead should be treated as a reasonable time, place and manner restriction on speech, requiring application of the less stringent, intermediate scrutiny. Under the "secondary effects doctrine," federal courts have held that if a content-based zoning restriction is aimed at the ...
To continue reading
Request your trial