Wolfe v. Village of Brice, Ohio, 95CV00894.

• Decision Date: 17 March 1998
• Docket Number: No. 95CV00894.,95CV00894.
• Parties: Mark E. WOLFE, Plaintiff, v. The VILLAGE OF BRICE, OHIO, Defendant.
• Court: U.S. District Court — Southern District of Ohio

997 F.Supp. 939

Mark E. WOLFE, Plaintiff, v. The VILLAGE OF BRICE, OHIO, Defendant.

No. 95CV00894.

United States District Court, S.D. Ohio, Eastern Division.

March 17, 1998.

Eric P. Rotondo, Columbus, OH, for Plaintiff.

David W. Telford Carroll, Columbus, OH, for Defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter comes before the Court on the parties' opposing Motions for Summary Judgment. Plaintiff, Mark E. Wolfe ("Wolfe"), brings this action against Defendant, the Village of Brice, Ohio ("the Village"), challenging the constitutionality of a 1994 Village Ordinance which regulated the location and operation of adults-only bookstores. Plaintiff seeks a declaratory judgment, injunctive relief, and damages as well as attorneys' fees. This Court's jurisdiction is pursuant to 28 U.S.C. § 1331.

II. FACTUAL BACKGROUND

Wolfe is the owner of property located at 2895 Brice Road, within the Village of Brice, Ohio. The property consists of improved real estate upon which a commercial building is located. Prior to Wolfe's ownership of the property,¹ the building housed the only adult bookstore within the Village. The use of the property for this purpose was permitted under the Village's zoning ordinances in effect at that time. However, in 1991, the continued use of the property for any purpose was enjoined for one year by the Franklin County Court of Common Pleas on the basis that the use of the property as an adult bookstore was a nuisance. The adult bookstore did not reopen after the one year injunction expired.

In 1994, the Village enacted Ordinance 7-94, which, among other things, prohibited the operation of adult entertainment facilities, including adult bookstores, within 1000 feet of churches and schools and within 300 feet of any residential area.² Wolfe's property is located within 1000 feet of a church and school.

The preamble to the ordinance set forth justifications for the regulation; for example, the Village stated that it wished to avoid a deleterious effect on existing neighborhoods, excessive noise levels and similar secondary adverse effects attributed to the operation of an adults-only businesses. In January 1995, Wolfe rented space in his building to a tenant who either opened or intended to open an adult bookstore.³ This business was effectively closed or thwarted when the tenant learned of the 1994 Ordinance. Wolfe then commenced the instant action in September 1995, challenging the constitutionality of Ordinance 7-94⁴ and alleging a deprivation of his rights under 42 U.S.C. § 1983. The property has not been rented since 1995.

III. LEGAL ANALYSIS

A. Standard For Summary Judgment

Fed.R.Civ.P. 56(c) provides in relevant part that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." A fact is deemed material only if it "might affect the outcome of the lawsuit under the governing substantive law." Wiley v. United States, 20 F.3d 222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The party moving for summary judgment has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.1993). The nonmoving party must then present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). The suggestion of a mere possibility of a factual dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). Further, "summary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The necessary inquiry for this Court in determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995).

In the instant matter, both Wolfe and the Village move for summary judgment.⁵ For either side to obtain summary judgment, there can be no genuine issue of material fact. To determine which facts are material, this Court looks to that law applicable to the regulation of adults-only businesses.

B. The Legality of the 1994 Ordinance

In City of Renton, et al. v. Playtime Theatres, Inc., et al., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court outlined a multi-pronged test for determining whether a zoning ordinance regulating adults-only businesses violates the First and Fourteenth Amendment.⁶ The Court held that "`content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication."⁷ Id. at 47. The zoning ordinance must be narrowly drawn, but a least-restrictive means analysis is not required. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Bamon Corp. v. Dayton, 730 F.Supp. 80, 84 n. 5, 89 (S.D.Ohio 1990).

Under Renton, the substantial governmental interest served cannot be aimed at the content of the material involved, but may address the secondary effects of such businesses. See Renton, 475 U.S. at 47. The Court identified acceptable governmental zoning interests: "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 ...'" Id. at 48. Further, in establishing its intent to address the secondary effects— an intent that must be made express—a city may rely upon studies and evidence "generated by other cities, 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; see also CLR Corp. v. Henline, 702 F.2d 637 (6th Cir.1983) (requiring factual justifications). Finally, it is not necessary that the sites in which a city permits location of adults-only businesses be economically viable; all that is required is that a city not foreclose residents from a reasonable opportunity to open such a facility in the city. See Renton, 475 U.S. at 53-54 ("In our view, the First Amendment requires ... that [the city] refrain from effectively denying [the owners of adult theaters] a reasonable opportunity to open and operate an adult theater within the city.")

1. Whether the 1994 Ordinance effected a complete ban on adult entertainment facilities within the Village of Brice

In his Motion for Summary Judgment, Wolfe argues that Ordinance 7-94 fails to meet the Renton test and is therefore unconstitutional as applied because all commercial locations in the Village were barred from operating as an adult bookstore when the ordinance was passed. Wolfe supports his contention that no alternative locations were permitted within the Village with his own affidavit.

In its Combined Memorandum in support of Defendant's Motion for Summary Judgment and Contra Plaintiff's Motion for Summary Judgment, Defendant argues that in January 1995, when Plaintiff sought to rent his property to an adult bookstore tenant "over 27% of Brice general commercial properties were outside a radius of 1000 feet from the church/school building."⁸ Therefore, Defendant argues that the 1994 Brice Ordinance did not completely preclude the location of an adult bookstore in Brice.

Defendant supports his contention with affidavits of both the Mayor of Brice, David Welling, and a cartographer with the Office of the Franklin County Engineer, Bruce Jones. While the affidavits are inconsistent with each other with respect to which and how many specific Brice properties were outside the 1000 foot restriction imposed by the 1994 ordinance, they are consistent in their claim that at least some commercial properties in Brice were outside that restriction.

Thus, it initially appears that the parties have raised a genuine issue of fact which is material to the question of the constitutionality of the 1994 ordinance: whether the ordinance foreclosed the citizens from a reasonable opportunity to open an adult entertainment facility within the city. The evidence initially submitted by the parties raises a dispute as to how many locations were available for such facilities within the Village under Ordinance 7-94.

In its Combined Reply Memorandum in Support of Summary Judgment and Contra Defendants' Motion for Summary Judgement, however, Plaintiff argues that all of the commercial properties outside the 1000 foot restriction imposed by Ordinance 7-94 are unavailable as locations for...