TK's Video, Inc. v. Denton County, Tex.

• Decision Date: 26 February 1993
• Docket Number: No. 4:91cv49.,4:91cv49.
• Citation: 830 F. Supp. 335
• Parties: T.K.'s VIDEO, INC., Plaintiff, v. DENTON COUNTY, TEXAS, Defendant.
• Court: U.S. District Court — Eastern District of Texas

830 F. Supp. 335

T.K.'s VIDEO, INC., Plaintiff, v. DENTON COUNTY, TEXAS, Defendant.

No. 4:91cv49.

United States District Court, E.D. Texas, Sherman Division.

February 26, 1993.

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Malcolm Dade, Dallas, TX, Arthur M. Schwartz, Denver, CO, for plaintiff.

Kent Stanley Hofmeister, Robert Franklin Brown, Terrence S. Welch, Dallas, TX, Pamela A. Wells, Denton County Criminal Dist. Atty., Robert Smith Morris, Denton, TX, for defendant.

MEMORANDUM OPINION AND ORDER

PAUL N. BROWN, District Judge.

Plaintiff brought this suit challenging the constitutionality of an order adopted by the Commissioners' Court of Denton County, Texas. Pending before the Court are motions for summary judgment filed by both the plaintiff and the defendant. After consideration of the motions, the responses, and the summary judgment evidence, the Court is of the opinion that the order is constitutional, with the exception of the following severable provisions: Sections 1A-4(a)(4) and (5) and 1A-4(k) and portions of 1A-4(a)(2) and (3).

BACKGROUND

On February 5, 1990, the Commissioners' Court for Denton County, Texas, enacted a sexually oriented business order ("the order"). Plaintiff operates a business that currently sells, rents, and/or exhibits publications, books, films, and/or videos that meet the definitions of sexually oriented materials, adult arcade, adult bookstore or adult video store which sells or rents materials which depict or describe specified sexual activities or specified anatomical areas contained in the order. Plaintiff is not being prosecuted under the order and has not applied for a license under the order. Plaintiff has stipulated that it challenges only the facial constitutionality of the order and has dismissed all of its claims that make any applied constitutional challenge to the order. Furthermore, plaintiff makes no claims that the locational restrictions of the order apply to plaintiff.

The preamble to the order contains the following findings of the Commissioners' Court:

(1) that sexually oriented business are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature;

(2) the concern over sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens;

(3) licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation;

(4) there is convincing documented evidence that sexually oriented businesses, because of their very nature have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values;

(5) it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban and rural blight and downgrading the quality of life in the adjacent area;

(6) the Commissioner's Court desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of urban and rural blight; and

(7) it is not the intent of this order to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the secondary effects of sexually oriented businesses.

DISCUSSION

A. Standing

Denton County contends that plaintiff lacks standing to challenge the constitutionality of the order because plaintiff has not filed an application for a license and the lack of criminal prosecution by the county. "Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad." FW/ PBS Inc. v. City of Dallas, 493 U.S. 215, 222, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990) citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 2125 n. 15, 80 L.Ed.2d 772 (1984). The Court concludes that the plaintiff has standing for the facial challenges falling within this First Amendment context such as overbreadth, vagueness, improper vesting of unbridled discretion, lack of procedural safeguards, and for impermissible prior restraints.

B. Burden of Proof

Plaintiff contends that Denton County has the burden of establishing the constitutionality of the order, since it infringes on the exercise of First Amendment rights. The Court agrees. "When a law infringes on the exercise of First Amendment rights, its proponent bears the burden of establishing its constitutionality." Ass'n of Community Org. v. Mun. of Golden, Colo., 744 F.2d 739, 747 (10th Cir.1984).

Plaintiff also argues that in considering the constitutionality of the order the Court must begin with the presumption that the order is unconstitutional. Plaintiff is correct. While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 222, 110 S.Ct. 596, 604, 107 L.Ed.2d 603 (1990).

C. Constitutionality

Purpose and Intent of the Order:

The order states in Section 1A-1 that

(a) It is the purpose of this order to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the county, and to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses within the county. The provisions of this order have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this order to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. The promotion of obscene material (not protected by the first Amendment) is enforceable through separate criminal sanctions under the penal code.

The minutes of the Denton County Commissioners' Court reflect that before enacting the order, the court considered studies by the cities of Austin, Texas; Amarillo, Texas; Beaumont, Texas; Houston, Texas; Indianapolis, Indiana; Los Angeles, California; Oklahoma City, Oklahoma; Phoenix, Arizona; and, Seattle, Washington, as well as other evidence concerning the effects of sexually oriented businesses on surrounding neighborhoods and the community. These studies and the other evidence which the Commissioners' Court had before it was relevant to the problems that the order addresses, supports the findings and conclusions set forth in the preamble to the order and a finding that the county has a substantial interest in the regulation of sexually oriented businesses. Furthermore, the law of the State of Texas now provides for the regulation by counties of the operation as well as the location of sexually oriented businesses.¹ The Court finds that the order is not aimed at the content of the materials displayed and sold by plaintiff. Although the order only addresses the effects of sexually oriented businesses on the community and not the content of the materials, there is no doubt that its terms have an incidental impact on expression that is protected by the First Amendment. The law is clear that the government may not restrict or deny access by adults to sexually oriented materials protected by the First Amendment. On the other hand, the law is also clear that those engaged in the business of dispensing sexually oriented materials are subject to "content-neutral time, place, and manner regulations ... so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 45, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986); SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1273 (5th Cir.1988).

Because of the incidental impact of the order on expression that is protected by the First Amendment, it is appropriate that the Court analyze its constitutionality under the four-part test of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Under O'Brien, regulation is justified despite its impact on the First Amendment "1 if it is within the constitutional power of the government; 2 if it furthers an important or substantial governmental interest; 3 if the governmental interest is unrelated to the suppression of free expression; and 4 if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

Applying O'Brien, it is clear that the police power of the county encompasses the power to enact a regulatory ordinance such as the one at issue. The county's interest in prevention of sexual disease and illegal sexual activity and in minimizing the effects of sexually oriented businesses on the community are important and substantial. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976). The county's intent as expressed in the...