State v. Pangaea Cinema LLC

• Decision Date: 12 September 2013
• Docket Number: No. 33,693.,33,693.
• Parties: STATE of New Mexico, CITY OF ALBUQUERQUE, Plaintiffs–Respondents, v. PANGAEA CINEMA LLC d/b/a Guild Cinema LLC, Keif Henley, registered agent, Defendants–Petitioners.
• Court: New Mexico Supreme Court

310 P.3d 604

STATE of New Mexico, CITY OF ALBUQUERQUE, Plaintiffs–Respondents,

v.PANGAEA CINEMA LLC d/b/a Guild Cinema LLC, Keif Henley, registered agent, Defendants–Petitioners.

No. 33,693.

Supreme Court of New Mexico.

Sept. 12, 2013.

ACLU of New Mexico, Laura Louise Schauer Ives, Morrissey Lewis L.L.C., Kari T. Morrissey, Albuquerque, NM, for Petitioners.

John E. Dubois, Assistant City Attorney, Albuquerque, NM, for Respondents.

OPINION

CHÁVEZ, Justice.

{1} On a November weekend in 2008, an art-house movie theater in Albuquerque's Nob Hill neighborhood hosted a film festival. The Nob Hill Business Association described the event as “a success, not only in driving [customer] traffic to the area, but also in the quality and caliber of those customers.” The Association specifically noted that there were “almost no negative comments” and that it hoped the film festival would continue to present the festival. Several local business owners stated that the festival had positive effects on the neighborhood, including increased sales and broader public awareness of the businesses in the area. The festival did not cause any crime or other negative effects in the neighborhood.

{2} The festival was titled “Pornotopia,” and it featured at least one erotic or pornographic film. Other than the weekend of Pornotopia, the theater showed non-pornographic films. Despite Pornotopia's positive impact on the neighborhood and the generally non-adult nature of the hosting theater, the theater was convicted of a zoning violation for operating an “Adult Amusement Establishment” in an improper zone. See Albuquerque, N.M., Code of Ordinances, § 14–16–1–5(B) (1974, amended 2012) (defining “adult amusement establishment”). The theater argues before this Court that the conviction violated its state and federal constitutional rights to free speech.

{3} An “adult amusement establishment” is defined in the Albuquerque Code of Ordinances as “[a]n establishment such as [a] ... theater ... that provides amusement or entertainment featuring ... films, motion pictures ... or other visual representations or recordings characterized or distinguished by an emphasis on ... specified anatomical areas or ... specified sexual activities.” Id. Consistent with our responsibility to interpret ordinances to avoid constitutional concerns, we interpret the term “adult amusement establishment” to apply only to traditionally adult businesses. Because this category does not include theaters that rarely or only occasionally feature adult entertainment, the theater in this case was not an adult amusement establishment, and it did not commit a zoning violation. Therefore, we do not reach the constitutional questions raised by the theater.

BACKGROUND

{4} Defendant Pangaea Cinema (“the Guild”) is a limited liability company that does business as the Guild Cinema in the Nob Hill area of Albuquerque. The Guild is an art-house theater that usually shows non-pornographic independent films. However, on the weekend of November 14–16, 2008, the Guild hosted an erotic film festival called “Pornotopia.” This was the second time that the Guild had presented Pornotopia, and the festival was apparently intended to be an annual event.

{5} The Guild is located in an area of Albuquerque that is zoned C–2, or “Community Commercial.” Albuquerque does not permit adult amusement establishments in C–2 zones. See Albuquerque, N.M., Code of Ordinances, § 14–16–2–17(A) & (B) (1974, amended 2012) (not listing adult amusement establishments as either permissive or conditional use in C–2 zones); Albuquerque, N.M., Code of Ordinances, § 14–16–1–3(B) (1974, amended 1980) (“Any use not designated a permissive or conditional use in a zone is specifically prohibited from that zone, except as otherwise provided herein.”). The City defines an “adult amusement establishment” as

An establishment such as an auditorium, bar, cabaret, concert hall, nightclub, restaurant, theater, or other commercial establishment that provides amusement or entertainment featuring one or more of the following:

(1) A live performance, act or escort service distinguished or characterized by an emphasis on the depiction, description, exposure, or representation of specified anatomical areas or the conduct or simulation of specified sexual activities; or

(2) Audio or video displays, computer displays, films, motion pictures, slides or other visual representations or recordings characterized or distinguished by an emphasis on the depiction, description, exposure or representation of specified anatomical areas or the conduct or simulation of specified sexual activities.

Section 14–16–1–5(B).

{6} The City of Albuquerque apparently became concerned that the Guild's screening of the films in Pornotopia might constitute a zoning violation. Two zoning enforcement inspectors visited the festival and watched a film entitled “Couch Surfers, Trans Men in Action.” The parties agree that the film was characterized or distinguished by an “emphasis on ... specified anatomical areas or ... specified sexual activities” as described in Section 14–16–1–5(B). On the basis of this screening, the City determined that the Guild was operating as an adult amusement establishment in an area that was not zoned for adult entertainment.

{7} In December 2008, the State of New Mexico and the City of Albuquerque charged the Guild with a criminal zoning violation in metropolitan court. (For clarity, we refer to the prosecuting body either as “Albuquerque” or “the City.”) The metropolitan court found the Guild guilty, and the Guild appealed to the Second Judicial District Court. The district court held that the Guild had committed a zoning violation and that the zoning ordinances were constitutional as they applied to the Guild. The district court also imposed a criminal fine of $500. The Court of Appeals affirmed the Guild's conviction. City of Albuquerque v. Pangaea Cinema LLC, 2012–NMCA–075, ¶ 1, 284 P.3d 1090,cert. granted,2012–NMCERT–007, 295 P.3d 600.

DISCUSSION

{8} The parties agree on the salient facts of the case, and our role is to interpret the Albuquerque ordinance at issue.¹ “Interpretation of municipal ordinances and statutes is a question of law that we review de novo.” Stennis v. City of Santa Fe, 2008–NMSC–008, ¶ 13, 143 N.M. 320, 176 P.3d 309. The Guild has also made constitutional arguments, and to the extent that we address these arguments, we consider them de novo. State v. DeGraff, 2006–NMSC–011, ¶ 6, 139 N.M. 211, 131 P.3d 61.

{9} Cities are generally allowed to impose different zoning requirements on adult theaters than on mainstream theaters.²Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 71–73, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion); id. at 74, 96 S.Ct. 2440 (Powell, J., concurring in the judgment and portions of the opinion). Even though such zoning ordinances categorize theaters based on the content they exhibit, courts may analyze the ordinances as content-neutral time, place, and manner restrictions. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The idea is that these zoning restrictions target not the content of the films shown, but rather the “ secondary effects ” caused by the accumulation of adult amusement establishments in a city. Id.

{10} Secondary effects were described by the Young and Renton courts. In Young, the City of Detroit adopted an ordinance stating that a concentration of adult businesses “tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere.” 427 U.S. at 55, 96 S.Ct. 2440. In Renton, a similar ordinance was “designed to prevent crime, protect the city's retail trade, maintain property values, and generally protec[t] and preserv[e] the quality of [the city's] neighborhoods, commercial districts, and the quality of urban life, not to suppress the expression of unpopular views.” 475 U.S. at 48, 106 S.Ct. 925 (alterations in original) (internal quotation marks and citation omitted).

{11} Because these ordinances are treated as time, place, and manner restrictions, id. at 47, 106 S.Ct. 925, they are valid if (1) they are content-neutral, (2) “they are narrowly tailored to serve a significant governmental interest,” and (3) “they leave open ample alternative channels for communication of the information.” Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Cities carry a light evidentiary burden in justifying these ordinances, and they have some flexibility in designing them. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring in the judgment) (“[W]e have consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required.”). Cities may choose to disperse their adult businesses or concentrate them. Renton, 475 U.S. at 52, 106 S.Ct. 925. They may rely on studies from other cities rather than producing their own evidence, “so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Id. at 51–52, 106 S.Ct. 925.

{12} It is not clear precisely which secondary effects Albuquerque fears will result from the presence of adult amusement establishments; the ordinance does not include legislative findings, and the City's briefing did not specify the evidence on which the Albuquerque City Council relied in enacting the ordinance. Nevertheless, the Albuquerque ordinance in question is similar to the ordinances upheld in other cases, including Young and Renton, and the Guild does not challenge its constitutionality except as it is applied in this case.

{13} There is no dispute that “Couch Surfers” was an adult “amusement or...