HomeMy WebLinkAbout94-11 - Adult Entertainment Businesses - StudiesRESOLUTION NO. 94 -11
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH,, CALIFORNIA,, ACCEPTING
STUDIES AND OTHER DOCUMENTATION REGARDING THE
SECONDARY EFFECTS ASSOCIATED WITH THE OPERA-
TION OF ADULT ENTERTAINMENT BUSINESSES
• WHEREAS, the City Council of the City of Newport Beach wishes
to promote the City's substantial and significant interest in
protecting the health, safety, welfare, morals and quality of life
of the people of the City of Newport Beach and the visitors
thereto; and
WHEREAS, the City Council believes as true the documents,
judicial decisions and other public records attached hereto as
Exhibit "A" which demonstrate that various operational practices of
Adult Entertainment Businesses (as that term is defined in Section
20.74.020 of the Newport Beach Municipal Code) increase criminal
activity, including but not limited to sexually related criminal
activity, and increase the likelihood of the transmission of
diseases including but not limited to sexually transmitted diseases
such as gonorrhea, syphilis, herpes, and acquired immune deficiency
syndrome ( "AIDS ") and hepatitis -B; and
WHEREAS, the City Council believes the following statements
are true, in part, based upon its understanding of the documents,
judicial decisions, and other public records attached hereto as
Exhibit "A ":
A. Evidence indicates that dancers, models, entertainers,
and other persons who perform in the manner described in
Section 5.26.010(a) and (b) (collectively referred to as
"Performers ") at Adult Entertainment Businesses have been
found to engage in sexual activity with patrons of Adult
Entertainment Businesses on the site of the Adult Enter-
tainment Business;
B. Evidence has demonstrated that Performers employed by
Adult Entertainment Businesses have been found to offer
and provide private shows to patrons who, for a price,
are permitted to observe and participate with the
Performers in live sex shows;
C. Evidence indicates that Performers at Adult Entertainment
have a potential life span of 2 to 3 hours outside the
human body.
H. The existence of semen on the walls and floors of the
Individual Viewing Areas can facilitate the transmission
of the AIDS and hepatitis -B viruses.
I. The practice of individuals having anonymous and /or
unprotected sexual relations in Individual Viewing Areas
can facilitate the transmission of the AIDS and hepati-
tis-B viruses as well as other sexually transmitted
diseases.
J. Poorly or unlit areas of Adult Entertainment Businesses
provide a location for people to engage in illegal sexual
activities.
K. Police agencies have determined that some Adult Enter-
tainment Businesses and the operators thereof have been
found to be directly engaged in (as well as aid and abet)
criminal and illegal sexual activity. Such individuals
also have been known to use aliases.
-2-
Businesses have been found to engage in acts of prostitu-
tion with patrons of the establishment.
D.
Evidence indicates that fully enclosed booths, individual
viewing areas, and other small rooms whose interior
•
cannot be seen from public areas of the establishment
( "Individual Viewing Areas ") regularly have been found to
be used as a location for engaging in unlawful sexual
activity.
E.
Many Individual Viewing Areas have been found to contain
"glory holes" in the walls joining abutting Individual
Viewing Areas which are used by customers to facilitate
sexual activity between the occupants of the abutting
Individual Viewing Areas.
F.
Individual Viewing Areas have been found to be unsanitary
due to the existence of semen, saliva, and blood on the
walls and floors of the Individual Viewing Areas.
G.
Medical science has found that the AIDS and hepatitis -B
viruses are carried in the semen of infected males and
have a potential life span of 2 to 3 hours outside the
human body.
H. The existence of semen on the walls and floors of the
Individual Viewing Areas can facilitate the transmission
of the AIDS and hepatitis -B viruses.
I. The practice of individuals having anonymous and /or
unprotected sexual relations in Individual Viewing Areas
can facilitate the transmission of the AIDS and hepati-
tis-B viruses as well as other sexually transmitted
diseases.
J. Poorly or unlit areas of Adult Entertainment Businesses
provide a location for people to engage in illegal sexual
activities.
K. Police agencies have determined that some Adult Enter-
tainment Businesses and the operators thereof have been
found to be directly engaged in (as well as aid and abet)
criminal and illegal sexual activity. Such individuals
also have been known to use aliases.
-2-
L. The neighboring city of Irvine has found that the
frequency of police calls to and criminal activity around
Adult Entertainment Businesses increase after 10:00 p.m.
M. Many jurisdictions have found that Adult Entertainment
Businesses generate excessive noise and disorderly
• conduct, particularly at the closing time of the Adult
Entertainment Business, which creates an adverse public
safety impact on surrounding businesses and communities;
and
WHEREAS, the experiences of the cities of Palm Springs, Cali-
fornia, and Huntington Beach, California, indicate that disorderly
conduct is likely to occur when crowds which are under the influ-
ence of alcohol become involved in sexually oriented activities;
and
WHEREAS, while the City Council desires to protect the rights
of those who provide adult- oriented entertainment, it desires to do
so in a manner which decreases, to the greatest extent feasible,
the undesirable secondary effects associated with such entertain-
ment; and
WHEREAS, the City Council reaffirms that by adopting ordi-
nances which regulate Adult Entertainment Businesses it is not the
City's intent to suppress any constitutionally protected activi-
ties, but rather to enact content neutral regulations which address
the secondary effects shown to be associated with Adult Entertain-
ment Businesses.
NOW, THEREFORE, the City Council of the City of Newport Beach,
California, hereby resolves as follows:
Section 1: Based upon the evidence contained in the docu-
ments, judicial opinions, and other public records attached hereto
as Exhibit "A," the City Council finds as follows:
A. The City has an interest in ensuring that individ-
uals who operate Adult Entertainment Businesses have not been con-
victed of criminal offenses, particularly sexually related
offenses. The application requirements contained in Chapter 5.28
of the Newport Beach Municipal Code further that interest.
-3-
B. Requiring the presence of 1 security guard for every
200 patrons at Adult Entertainment Businesses is likely to reduce
the disorderly conduct and illegal activity observed to occur at
Adult Entertainment Businesses.
C. Requiring Adult Entertainment Businesses to close at
• 2:00 a.m. is likely to reduce the early morning criminal activity
occurring at and near Adult Entertainment Businesses and is likely
to eliminate the existence of excessive noise and disorderly
conduct in and around the community in the early hours of the
morning.
D. Both the requirement that Adult Entertainment
Businesses only allow performances of the variety described in
Section 5.28.010(a) and (b) on stages 18 inches above the floor and
the requirement that patrons not be permitted within 6 feet of such
a stage during performances or within 6 feet of the Performers
themselves is likely to reduce the opportunities for illegal sexual
activity to occur between Performers and patrons, and is particu-
larly likely to reduce the opportunity for such illegal sexual
activity to occur at the Adult Entertainment Business.
E. Requiring performers in Individual Viewing Areas
to be completely separated from patrons by a floor to ceiling
plexiglass or other clear, permanent barrier is likely to reduce
the opportunity for illegal sexual activity to occur between
Performers and patrons and reduce the possibility of the trans-
mission of sexually transmitted diseases between Performers and
patrons.
F. Requiring the entire interior portion of Individual
Viewing Areas to be visible from aisles and public areas of the
Adult Entertainment Business is likely to reduce the opportunity
for illegal sexual activity to occur within the Individual Viewing
Area.
G. Requiring areas within Adult Entertainment Busines-
ses to be minimally illuminated is likely to reduce the opportunity
for the occurrence of illegal sexual activity in dark portions of
Adult Entertainment Businesses.
H. Prohibiting any physical contact between Performers
and patrons of Adult Entertainment Businesses is likely to reduce
aC
the opportunity for the occurrence of illegal sexual activity
between patrons and Performers.
I. Prohibiting holes or openings between the interior
spaces of Individual Viewing Areas is likely to reduce the oppor-
tunity for the occurrence of illegal sexual activity between the
• occupants of Individual Viewing Areas.
J. Prohibiting the occupancy of more than one person in
an Individual Viewing Area at any time is likely to reduce the
opportunity for the Individual Viewing Area to be used for illegal
sexual activity.
K. Prohibiting patrons of Adult Entertainment Busines-
ses from offering payments or gratuities and prohibiting Performers
from accepting the same is likely to reduce the opportunity for
illegal sexual activity to occur between patrons and Performers.
Section 2. The City Council finds that the documents, judi-
cial opinions, and public records attached hereto as Exhibit "A"
support the adoption of ordinance No. 94 -7 and the regulations
established therein.
Adopted, this 14th day of February, 1994.
(2 a
Mayo
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EXHIBIT A FOR
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH
ATTACHED ARE THE FOLLOWING DOCUMENTS:
1. Excerpt, Attorney General's Commission on Pornography, pp
1475 -76.
2. Transcription of video tape relating to the interior of
sexually oriented business with Alan Sears, Executive Director
of Children's Legal Foundation and Detective Vincent
Rizzitello of the Fort Lauderdale Police Department.
3. Staff report for City of Tuscon, Arizona for proposed
amendments to City Adult Entertainment Code dated 5 -4 -90.
4. Reporter's transcript of preliminary hearing, May 20 -23, 1991
in re: People of the State of California v. Henry Hardy 91C00
2118 Municipal Court of the State of California for the County
of Ventura.
5. The Case of Broadway Books, Inc. V. Roberts 642 F. Supp. 486
(1986).
6. Declaration of Michael B. Bongiovanni, M.D..
7. Ellwest Stereo Theaters, Inc. v. Wenner 681 F. 2d 1243 (1982)
(Ninth Circuit).
8. Sundance Saloon, Inc. v. City of San Diego 213 Cal. App. 3d
807 (1989).
9. Hart Bookstores, Inc. v. Edmisten 612 F. 2d 821 (1979).
10. People v. Adult World Bookstore 108 Cal. App. 3d 519 (1980).
11. Attorney General's Commission on Pornography, Chapter 17, "The
Use of Performers and Commercial Pornography."
ExhibitA.AE
Introduction
Amid much national publicity, during 1985 and 1986 the
Attorney General's Commission on Pornography held a series
of six public hearings across the United States. One of the most
often cited concerns of witnesses before the Commission were
effects of so called "adult" establishments on their local urban
environments. Particular complaints were made about "peep
booths," called "AIDS transmission centers" by at least one
witness, within such establishments.
In addition to movie viewing, the booths also provide
places for anonymous sexual relations... Sexual activity
in the booths involves mostly males participating in
sexual activities with one another. However, both
heterosexual and homosexual men engage in these ac-
tivities... The booth is sometimes equipped with a lock on
the door. Many patrons intentionally leave the door
unlocked. Some patrons look inside the booths in an
attempt to find one already occupied. It is commonplace
for a patron to enter an occupied booth, close the door
behind bin; and make advances toward the occupant.
He maygrab the occupantgenitals in an effort to invoke
sexual activity or attempt to arrange a later sexual
encounter. The sexual activities reported in peep show
booths include masturbation, and anal intercourse, and
fellatio. Inside the booths, the floors and walls are often
wet and sticky with liquid or viscous substances, includ-
ing semen, urine, feces, used propbylactics, gels, saliva
or alcoholic beverages.
Attorney General's Commission on Pornography Final
Report, U.S. Department of Justice July 1986, pp. 1475 -76. For
additional descriptions of related concerns see Appendix A.
A Television Newscenter 13 account from Eau Claire,
Wisconsin further describes another reason for public con-
cern;
78 Time, Place, and Manner Regulation of Business Activity
TRANSCRIPTION OF VIDEOTAPE RELATING TO
THE INTERIOR OF SEXUALLY ORIENTED
BUSINESSES WITH ALAN SEARS, EXECUTIVE
DIRECTOR OF CHILDREN'S LEGAL FOUNDATION
AND DET. VINCENT RIZZITELLO, OF THE FT.
• LAUDERDALE POLICE DEPARTMENT, ORGANIZED
CRIME DIVISION. (A copy of this video
tape has been lodged with the Clerk of
Court.)
Mr. Sears: We have a film that you
brought from Florida with us today that
we would like to take a quick look at.
Vince, I would like you to tell the
officers who are listening to this tape,
I know there is a real different level
of experience between those that are
watching this tape, between those who
have been deeply involved and who have
briefly been involved. I would like you
to tell us a little about what goes on
in these porn outlets.
Det. Rizzitello: Basically, several
years .ago in one of our investigations,
we got a court order to go inside one of
our adult bookstores and video the
inside because we could not get a judge
to go down and see it for himself so we
wanted to represent to him exactly what
the atmosphere was like.
II�;i
Appendix A. .
What you are seeing now is the back
room where the videos are played and the
8 mm movies and this is a marquee
section. Basically, it shows films that
are offered for viewing in each booth
and the customer would go in; you can
see there is about 150 films there,
decide what film he wanted to view and
then go to that particular numbered
booth and drop his quarter so he could
view about 2 minutes of that film.
Mr. Sears: Now, you have a lot of light
in here for your television film. What
is the normal situation in these back
rooms.
Det. Rizzitello: The way that area was
lit up was basically because of our
camera that we had. Normally it is a
black light atmosphere and you basically
have to feel your way around this area.
Again, these people knew we were coming
so the patrons were removed and it is
very sanitary right now. I wish I could
bottle the smell or the feeling when you
walk in there* -- there is just no way of
rA
80 Time, Place, and Manner Regulation of Business Activity
r; representing it on a piece of tape. like
i
this. That is why we wanted the judge
to experience it but second best, we got
I. a piece of film that we could have the
• judge look at and try to interpret it to
him basically what these areas are.
That they are really masturbation
parlors.
Mr. Sears: And in addition to
masturbation, other types of sexual
activities take place.
Det. Rizzitello: Absolutely, these are
the booth's doors, so once you leave the
marquee, the patron would find a
particular booth he was interested in.
Mr. Sears: This looks like a pretty
good size place. What have we got 25 or
26 booths?
Det. Rizzitello: This has 50 booths.
This is just one side of it. These
booths on this side are mainly smaller
booths where maybe one or two people
could get in together and on the other
0
Appendix A 81
side was called the group booths where
you get 5 or 6 people. Right now you
are looking at a long hallway shot.
Normally, this is crowded with
individuals going from one booth to the
next booth.
Mr. Sears: What is this we are looking
at now?
Det. Rizzitello: You are looking at the
screen. This is the screen when the
customer goes in, he closes the door and
the film is shown on the screen. The
stains you see on the wall are semen
stains, there is no doubt. This is what
people do, they go in there and watch a
sexually explicit film, they masturbate
or they participate in sex with someone
else. That is exactly what they are
for. These are not for connoisseurs of
adult -type films who go in and critique
them. This is raw sex.
Mr. Sears: What is this you are
pointing to, this writing on the wall?
82 Time, Place, and Manner Regulation of Business Activity
zo
Pet. Rizzitello: This is a normal
technique used for advertising for
people to advertise their particular
perversion hoping someone will respond.
Again, the stains on the wall are the
evidence itself on what actually occurs
in these booths. The owners will claim
that all that occurs is movie viewing,
but they are cesspools.
The above transcript is reproduced from the brieffiled witb
the U.S. Supreme Court in FW /PBS, Inc. et al. v. City of Dallas
et al., No. 87-2012.
The complete 56- minute video tape referenced, Law
Enforcement: Investigative Techniques, is available for law
enforcement or public officials from the Children's Legal
Foundation.
KC\ KY?
1 t;o2 7:11 SSUSi _ Rl 'I:i\ k (CCkI ?K: _ C11.4 p 1
Sub*t: Proposed Amendment
to City Code 7 -207 through 7 -218
Adult Entertainment Enterprises
INTRODUCTION
iOm
Me 1 of 4
The Police Department has investigated adult
entertainment establishments within the city and have found that
sexual activity has occurred on the premises or has led to
prostitution off the premises. To better monitor adult
entertainment employees and stop the sexual activities and
prostitution, the police department desires adult entertainment
employee licensing. To stop the sexual activities from
occurring on the premises, the police department recommends
visibly accessible booths and clear screens between performers
and patrons in private shows. To prevent one locality from
becoming over burdened with this type of business and to keep
these businesses away from schools, parks, playgrounds,
residences and churches, the police originally advised that a
one thousand foot (1,0001) distance between any adult
entertainment enterprise and a residence, church, park,
playground, school or another adult entertainment enterprise be
established. However, the police department accepts a five
hundred foot (5001) limitation in order to meet the federal case
law requirement that at least five percent (5 %) of the city be
available for these businesses. The police and the planning and
zoning departments further agree that a five hundred foot (5001)
limitation would substantially remove these businesses from
residential neighborhoods, other cities that have already
successfully enacted five hundred foot (5000) spacing
requirements of such businesses are Denver, Detroit and Atlantic
City. Studies conducted in other major metropolitan areas,
e.g., Los Angeles, San Francisco and Seattle, confirm the Police
Department's finding of increased criminal and sexual activities
associated with these businesses. (See exhibit no. 1.) Thus
there is a need to disassociate these businesses from
neighborhoods and the five hundred foot (5000) limit will
accomplish this goal.
Additionally, the Pima County Health Department is in
favor of this ordinance because it will help curtail the spread
of sexually transmitted diseases, including AIDS, which are
significantly increased by frequent, anonymous sexual encounters
with multiple partners and by certain sexual practices attendant
with the adult entertainment environment. By regulating these
establishments the health of the public will be better protected
from contact and transmission of these serious and fatal
diseases. (see exhibit no. 2.)
KC\A BY:
1 602 is l 55111H_ RI TA\ & TI CKI'R. C13.: a 2
MAYOR AND COUNCIL COMMUNTCATION
"Proposed Amendment to City Code 7 -207 through 1 -218,
Adult Entertainment Enterprises."
Page 2 of a
PAOGROM
There is currently an adult ontertairment ordinance
which regulates businesses and ddult entertainment employees*
it prohibits sexual contact or the premises of adult
entertainment establishments and prohibits prostitution
activities. Formerly, adult entertainment businesses could be
locetwd In any 8 -2A zone and thus be near residences, churches,
parka, playgrounds and schools. The current ordinance is
attempting to enforce a one thousand foot (1,0001) spacing
requirement. Additionally, adult entertainment establishments
may currently clump together creating urban blight and police
enforcement difficulties Coneorrinq these businesses, employees
of the businesses and patrons.
Immediately after the passage of ordinance No. 7299 the
city wa- named as the defendant in a lawsuit in Federal Court in
which eight (8) of the existinq Tucson adult entertainment
businesses are seeking an injunction against enforcement of the
ordinance. Pursuant to a stipulation between the Tucson Polies
Department, the city Atterney1s office and the plaintiffs'
attorney, the City has refrained from enforcing parts of the
ordinance until pending constitutional issues could be resolved
in the United States Supreme Court's case of Parim Adult
Bookstore II v�City of Da, las. Tn light of the supreme Court's
decision, handed down January 9, 1990, Tucson Ordinance No. 7299
needs to be amended to comport with the constitutional
requirements announced by the Court.
PRESENT CONSIDERATIONS
The existing ordinance requires adult entertainment
employees to become licensed and thus allows the police to do a
background check on the employees and hopefully prevent illegal
activities; prohibits sexual contact on the premise; requires an
tuiobstructed view to all individual viewing booths; requiro6
solid transparent partitions between patrons and employees
performing private shows; prohibits sale, consumption or storage
of alcoholic beverages on the premiaas; prohibits social
gambling on the promises; and provides mandatory penalties for
violations of the ordinance.
tt1)2 791 ii,lAt _ kl 'I N \, & '1'1 CAIiK. 00: N
MAYOR ANU COUNCIL COMMUNICATION
"Proposed Amendment to City Code 7 -207 through 7 -218,
adult Entertainment Enterprises."
page 3 of a
The proposed ordinance provides for a constitutionally
secure method of review and appeal of any refusal or revcx:ation •
of an adult entertainment establishment or employee license. It
Also provides for strict time limits for appeal and for
temporary licensing (lending review of a refusal or revocation.
it further reduces the spacing requirement from one thousand
feet (1,0o0') to five hundred foot (5001) in order to comply
with recent federal caselaw. The proposed ordinance also
requires that the doors or curtains on individual viewing booths
be raised to a height of thirty inches (30 ") off the floor to
allow police monitoring of any illicit sexual conduct within the
booths. It also provides for an optional five hundred thousand
dollar insurance policy in lieu or a $10,000 each bond to
protect parsons in ease of injuries occurring on the premises,
which was requested by some of the business owners.
LEGAL CO?1SIIMATIONs
Tucson ordinance No. 7299 was modeled in part after the
ordinance from the City of Dallas. Because the United Stater;
supreme Court struck down certain provisions of that city's
ordinance in its January 9, 1990 decision. Ordinance No. 7299
now needs to be changed in order to fully provide for: a record
upon which the factual basis for denial or revocation of a
licence is made, a stricter time licit in which to review the
decisions and temporary licensing pending the review of such
licenses.
While one thousand foot (1,0001) spacing requirements
have been upheld, they must leave adequate areas within the city
in which to locate the licensed businesses. The United States
Supreme Court has said that ao little as five percent (5t) of
the total city is sufficient for this purpose. Current maps
provided by the Planning and Zoning Department show that the one
thousand foot (1,0000) spacing requirement will leave only about
three percent (31) of Tucson's area available for adult
entertainment businesses. However, a five hundred foot (5001)
spacing requirement would effectively double the available area
to approximately six percent (6!t) and thus exceed the smallest
available area percentage currently upheld by the Unitas statoo
supreme court. (See exhibit no. 3.) while a $10,000 bond was
originally required to insure some financial protection of
potentially injured customers, some business owners would like
to be able to opt fur a $500,Ouo insurance policy. Such an
i i
RC% 111 _ _2_11_:34_._.1 ?:33P \i 1 602 7:31 .ri5>(I;I__ RI 'IA\ d. _I7 CK iR. C%I.:p I
MAYOR AND COUNCIL COMMUNICATION
"Proposed Amendment to City Code 7 -207 through 7 -218,
Adult Entertainment Enterprises."
• Page 4 of 4
option not only makes available a potentially greater financial
source of protection for customers, but also better protects
.those businesses which can afford and desire such a policy of
insurance.
RECOMMENDATION
It is recommended that the Mayor and Council adopt the
ordinance as proposed, unless the public hearing raises new
issues.
JDV /F.S. Dean /RWC /WFM /plt
City Attorney
mcadlt6.wph
attachments
5/4/90
4
Respectfully submitted,
Joel D. Valdez
City Manager
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PnlicP X020randum dated May 1, 1990
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2-11-1)4 ..1 :33191__ _ I (SU3 7111 5` oij- Nl TA] & TI CAI ?R. C\l.: N G
MEMORANDUM
DATE: May 1, 1990
T0: Mr. William call aR=: Michael J. 14verona�
City Prosecutor Assistant chief of Police
Investigative services
Est. 4480
813WEMz ADULT EMTERTA1)M NT'ORDIIIAMC:
Per your request, the following information describes some of the
events and activities that were occurring in adult entertainment
bookstores and establishments that clearly demanded the need for a
stronger ordinance.
BACRAROnxo
in late 18a6, the Police Department received numerous Complaints or
illegal sexual activity and unsanitary conditions occurring in many
of the adult entertainment bookstores and establishments. initial
reports indicated that sexual activity was occurring on the
premises between customers and prostitutes, customers and the
entertainers and between the customers themselves. Through covert
investigations it was soon discovered that many of those
allegations were in fact true.
investigating officers found that many of the dancers ware
prostitutes who were offering private shows where customers could,
for a price, observe them performing live sex acts. one of these
acts was the "double dong" show. This show consisted of two
females using a double headed dildo simultaneously. in a similar
act dancers would perform oral sex on each other. Many times the
diners would require customers to expose themselves before they
would perform. At several of the businesses, customers were
allowed inside the booths with the dancer and were encouraged to
undress and masturbate. For a little more money, the dancers would
help the customer masturbate. Nearly all of the dancers engaged in
sexually explicit conversations with the customers. For the rignt
price customers would be allowed to touch the dancer in every place
that bikini panties did not cover and if enough money was paid the
customers would be allowed to insert their fingers into the vagina
n- 11 -:34 t :341.11_,._.
ADULT SwrRTAIJOUVT ORMNUCf
Page 2
T )
1 lily) 7`.II
of the dancer. undercover officers also learned that customers
could hire the dancers to engage in acts of prostitution.
Confidential sources indicated that; in some instances, these acts
actually occurred on the premises with the knowledge of the
management.
investigating officers also discovered that underage females were
being hired to dance nude. The youngest person known to have been
working in one of these businesses was a fifteen year old female.
The business that she was working at roquired that she dance
several times an hour and perform what are known as spread shows.
in these type of shows a female masturbates either manually or with
a vibrator in front of a customer. In most cases these minors were
in possession of false identification which they were assisted in
obtaining by the older dancers and, in one case, allegedly by the
business manager.
"Glory holes" were discovered in the walls of adjoining booths in
some of the bookstores and adult entertainment establishments.
'Phase holes were used by male customers to facilitate sexual acts
with the occupant of the neighboring booth. Additionally, cortaiz
book stores were found to be frequented by homosexuals and it was
not unusual to have men standing around the booth arews attempting
to pick each other up. it was also obvious to anyone who went into
these businesses that there was a problem with the sanitary
conditions. Upon entering the viewing booths, investigators often
found puddles of semen on the floors and/or hanging on the walls.
It the customer did use a tissue these were also usually found on
the floor of the booth and in some oases in the hallways.
In order to verify the accuracy of their observations,
investigating officers collected samples on two se arato occasions.
Between April and August of 1987, investigators collected 26 random
samples at eight separate adult entertainment bookstores and
astablishe"ta. Of these 26 samples the TPD Crime lab reported
that 21 (811k) tested positive for semen. The second collection
occurred between October and December of 1988. This time
investigators collected 27 random samples at ton separate adult
entertainment bookstores and establishments. Of these 27 samples.
26 (964) tested positive for semen.
At virtually every adult entertainment bookstore and establishment
employees were arrested for prostitution or obscene sex chows, At
one of these businesses a nationally known porn star was seen on
•
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1 (;02 7511 `- i'i�1:f -_kl l_ \\ ti _fl Ck": C\I. : H Ii
7WULT ENTERTAINMENT ORDINANCE
Page 3
stage in front of approximately twenty people inserting her tongue
and finger into the vagina and anus of another performer. At
another business, a dancer was arrested after she performed
oral /anal sex on another female. At the and of her show she blew
air out of her vagina in order to make noise. As a result of
arrangements that were easily made at these businesses, dancers
were also arrested for performing sex shows and other acts of
prostitution at other locations.
REED FOR A STROMORR ORDINANCE
During the time that we were conducting these criminal
investigations, the Health Department began investigating the
sanitary conditions in these businesses. The Health Department
recognized, as we did, that many of the activities that were
occurring were made possible by the doors on the booths. when it
was suggested that their removal would substantially reduce the
opportunity for people to have anonymous sex, the Adult
Entertainment Industry quickly joined forces with a common goal in
mind. That goal was to keep the doors on the booths.
In order to demonstrate that a health ordinance was not needed
these businesses began cleaning the booths and, in some instances,
the entire premises. whole businesses suddenly were painted and in
some cases remodeled. Signs started being displayed discouraging
loitering and asking customers to place their tissues in trash
cans. The whole industry began changing due to the fact that they
were trying to convince the Health Department and the public that
they could police themselves and that the doors did not have to
come off. In an attempt to diffuse the cry for the removal of the
doors the bottom part of the doors were cut off.
Shortly thereafter, City Ordinance 7299 was enacted which provided
for the licensing of employees and established regulations
regarding the operation and location of adult entertainment
enterprises. On November 1, 1989, Mr. Michael J. Bloom, attorney
for several of the enterprises affected by the ordinance, filed a
law suit in the United States District Court challenging this
ordinance. Since then a series of meetings occurred between Mr.
Bloom, the Police Department, and the City Attorneys Office to
determine if compromise was possible. As a result, we found that
a major issue of contention was whether the doors should come off
or be allowed to stay on. During an on -site inspection of these
booths with Mr. Bloom, he advised us that his clients position was
I Fv? '.91 :-iE�illa KI l'A\ F1'fCV.P.T:.
ADULT EMTL1Tja1MWT CAUXNANC!
Page 4
that the doors had to stay on. ife stated that his clients were
very concerned of the possibility of non - paying customers
congregating around the bootA of a paying customer. Mr. gloom also
indicated that his clients would be agreeable to wording in the
ordinance that require the bottom of the doors to be raised to a
height that would permit all the interior floor space (of the
booth) to be visible from the public hallway. The idea being that
this would allow anyone to count the number of feet in the booth
thereby insuring that there was only one person in there.
Discussions occurred with supervisors and officers of the police
Department's Vice Detail pertaining to the alternatives. After
these discussions, and recognizing that although Mr. gloom's
position he$ some merit, our first recommendation vas that the
doors be removed from the viewing booths for the following reasons.
1. "Glory Holes' - even if the doors were raised to knee level.
they would still provide customers with enough shielding to
encourage and permit illegal new acts to continue.
2. Masturbation - doors encourage and facilitate this act and we
do not feel the community believes this should be an
acceptable or sanctioned practice in a city licensed business
open to the public.
3. Sanitation - as previously stated random inspections of booths
by investigators found some rather offensive conditions,
Although there has been significant changes in the operation
of theca businesses, recent spot checks indicates that this
problem persists.
4. Booths - the viewing booths can be configured in a manner that
will preclude viewing by non - paying customers..
s. Court Decisions - the removal of doors has been upheld by the
courts.
Since then cevoral meetings with Mr. Bloom have taken place
regarding this issue. On April 30, 1990, the Police Department was
advised that Mr. gloom, in a letter to Mr. William Call, indicated
that his clients would agree to raising the bottom of the doors to
a beight of 30 inches from the floor. Subsequent to this
compromise offer, the Police Department agrees to recommend that
the doors remain on tho booths under the following conditions:
•
•
• >- I f -;fh- 1 3e7P \i 1 GU2 TJ I 5509_ _ R1 :I 'A\ Be _IY'CKVR. _ C \1. : N I U
ADULT EHTERTAIMXVT ORDINANCE
Page S
1. The bottom of the door must be a minimum of 30 inches from the
floor, so that the occupant of the booth is visible from the
waist down when seated.
x. The booth can not be modified nor can a chair be used that
will circumvent the intent of condition 11
we feel that this compromise answers the privacy issues raised by
Mr. Bloom and his clients, as well as, providing a deterrent effect
against the type of behavior that we originally cited for the doors
coming off entirely. Additionally, we believe that the proposed
ordinance will also benefit the businesses that it regulates
because:
1. Employee licensing obligates the Police Department to conduct
background investigations on all applicants. This will
ultimately result in the selection of better employees.
z. If the denial or revocation of a license is recommended a
hearing is required before any action is taken.
3. The presence of partial doors should not reduce business.
s.' The presence of partial doors will assist the businesses in
maintaining a cleaner environment and meeting the regulation
set forth in the ordinance.
It is for these reasons and the belief that the ordinance will not
adversely affect these business establishments that the Police
Department recommends the ordinance be adopted in its present form.
kC\ Ul__
I :AUI` \I ?._, 1 fiU_i 7:11 �iGt1:1._Nt TA \_R__II Chlik., C \I.:HII
Pima county Health Department Memorandum
dated January 29, 1990
•
C ry�N
r`
t +r o*s
'.x_11_:111 A-- -- i _ 1 (cub 7:)1 S54):) - -._R1 'I\\ ti TICAliRl' \I. :pIC
MEMORANDUM
DATE January 29, 1990
William Mills FROM: Audrey Opulski, M.D.
City Attorney Assistant Director
City of Tucson Preventive Health Svcs.�o69'`
SUBJECT: CITY ADULT ENTBRTAIMMNT ORDINANCE
Reference is made to Health Department P.10 Section 7 -213 (d): "The
licensed premises shall be available for inspection by police
department, fire department, state or county health departments."
Jim Robertson, the Director of Environmental Health, was given a
copy of the ordinance and will provide comments on County
responsibilities regarding any inspections.
Health Perspective:
Support for this ordinance from the health perspective is the
prevention and spread of infectious or contagious disease.
Specifically those contagious diseases spread by high risk sexual
activity or anonymous sexual encounters. The Human Immunodeficient
virus (HIV) is sexually transmitted and this transmission is
promoted and increased by frequent anonymous sexual encounters with
multiple partners and by certain sexual practices.
Adult agiertainment establishments provide an environment and
atmosphere that is conducive to these high risk sexual behaviors
and practices.
By regulating these establishments under the proposed ordinance,
the health of the public is protected from contact and transmission
of the serious and fatal disease.
In addition, the Ordinance will further prevent or reduce the
spread of other sexually transmitted disease: syphilis, gonorrhea,
chlamydia, herpes, warts and hepatitis B.
M-h.R
MUNICIPAL COURT OF THE STATE OF CALIFOR,;NI1t N:.....'::; '
. :3c:4CH
FOR THE COUNTY OF VENTURA
COURTROOM 24 HON. STEVEN HINTZ, MAGISTRATE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
Plaintiff, )
VS. ) 91CO02118
HENRY HARDY, )
Defendant. )
REPORTER'S TRANSCRIPT
OF PRELIMINARY HEARING
May 20,
21, 22 & 23, 1991
Appearances:
For the People:
MICHAEL D. BRADBURY
District Attorney
BY: MICHAEL FRAWLEY
Deputy District Attorney
800 S. Victoria
,..
Ventura, CA 93009
co
For the Defendant:
HARRY M. REYNOLDS
"'
en
Attorney at Law
1206 L. Street
Bakersfield, CA 93301
For the Witnesses:
KENNETH CLAYMAN
(Wells, Centino,
Public Defender
Barrett, Lopez, Brown)
BY: JEAN FARLEY
Deputy Public Defender
For the Witness:
JOSEPH O'NEILL
(Kennel)
Attorney at Law
For the Witness:
DAVID CALLAHAN
(Wallis)
Attorney at Law
Reported by:
DAVID J. O'GRADY, CSR 3146
Managing Court Reporter
800 South Victoria
Ventura, CA 93009
Volume I of II
^? c
•
41
1
BY MR.
FRAWELY.
2
Q.
Was that a woman?
3
A.
Yeah.
4
Q.
What was her name?
•5
A.
I just knew her by "Kriss." Tasha, I am sorry.
6
Q.
Kriss or Tasha?
7
A.
Yeah.
8
Q.
Did your after receiving that business card, did
9
you sometime
thereafter speak to Henry Hardy about a job at the
10
Stardust?
11
A.
Yeah.
12
Q.
And did Henry Hardy agree to hire you?
13
A.
Yes.
14
Q.
And did he tell you how you would earn your money?
15
A.
Um, I just -- just -- it was just -- I was just
16
going to model. I just wanted to model.
17
Q.
And was there a fee agreement? Did he tell you
18
what portion
of the fees that he charged you would receive?
19
A.
Yes. It was like for -- like a photography
20
modeling session was like $80 that I would get.
21
Q.
That you would get and would he get the rest?
22
A.
Yeah. I guess, yeah.
23
Q.
Could you describe the first paid performance that
24
you gave at Stardust, what happened?
25
A.
I just went to a photographer's house and I stood
26
there, regular photography and model.
27
Q.
Okay. was there any physical contact during this
28
session?
G
c
c
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42
A.
No.
Q.
And who set this session up?
A.
Um, Henry.
After
Q.
Who took you to this session?
A.
Henry.
c-
J
Q.
Okay. And "Henry Hardy "7
dance for a customer at the Stardust?
A.
Yeah.
They
Q.
During this first session did
the photographer take
any nude shots?
did you say?
A.
Yeah.
Q.
During the f irst session?
A.
Yeah.
Q.
Were you asked by anyone to engage
in any physical
contact during that first session?
A.
No.
Q.
Were you sent back to this same photographer a
second time?
A.
Yes.
Q.
And during that session, the
second session with
the photographer, were you asked to engage
in any physical
contact?
A.
No.
r
C
C
C
C
^SR3
-e
r_
I
Q.
Did you again pose for nude photography shots?
A.
Yes.
Q.
After
those two sessions with the photographer,
c-
J
were you
asked to
dance for a customer at the Stardust?
A.
They
asked me if I wanted to.
Q.
What
did you say?
i
43
_ 1
A.
"No."
2
Q.
Did you eventually agree to dance for a customer?
3
A.
Yes.
4
Q.
Did the customer attempt to touch you?
A.
No; no.
•5
6
Q.
Can you describe what occurred during the session?
7
A.
I just danced.
- 8
Q.
Now I am not asking you if a customer did touch
9
you.
I am
asking you if a customer attempted to touch you?
10
MR.
REYNOLDS: Objection. That question has been.asked
_ 11
and
answered.
_ 12
THE
COURT: Overruled.
- 13
THE
WITNESS: Not the first time, no.
14
BY
MR. FARWLEY:
15
Q.
Did you dance for another customer after you danced
16
for
that first
customer?
_ 17
A.
Yes.
- 18
Q.
And was that at Stardust studios?
19
A.
Yes.
20
Q.
During the session with this second customer that
21
you
danced
for, did the customer attempt to touch you?
_ 22
A.
Yes.
23
Q.
Did the customer masturbate in your presence?
24
A.
Yes.
25
Q.
Did the customer touch you?
26
A.
I backed away.
27
Q.
What did you do when the customer attempted to
28
touch you and after you backed away?
I
44
1 A. Nothing. Just he -- he couldn't do anything. I
2 backed away.
3
Q.
Did you finish the session?
4
A.
I just finished the song and left.
5
Q.
Okay. Was that -- did you finish the entire time
6
period for
which you were suppose to be dancing during that
7
session?
8
A.
Yeah. It was toward the end and I left.
9
Q.
Did -- after you came out of that session did you
10
tell anyone
that that customer had attempted to touch you?
11
A.
I -- I don't remember what I told anyone.
12
Q.
were you, after that were you asked to do a .session
13
with a customer
with another dancer named Breana?
14
A.
Yeah.
15
Q.
Do you -- do you know whose idea it was for you to
16
dance with
Breana?
17
A.
No.
18
Q.
Pardon me?
19
A.
No.
20
Q.
Okay. Did Breana ask to you dance with her?
21
A.
Yeah. She says "Do you want to go in together ?" I
22
didn't think
anything of it.
23
Q.
Did you agree to go into the session with that
24
customer together
with Breana?
25
A.
Yeah.
26'
Q.
And can you describe for the Court in the same
27
order that
things happened what happened in that session once
28
you went in
with Breana?
y♦ •+i4 n.4� �i4 I yr UJu1CL V t u�C4u4VU 4V llu UC J1iC
8' first went into the room?
9 A. I stood there and was dancing. I kept my clothes
10 on. I didn't know what to do and she took her's off.
11 Q. When you say "she," are you talking about Breana?
12 A. Yes.
13 Q. And once you saw Breana take her clothes off what
14 was the next thing you observed Breana do?
1e (Pause)
16 A. I don't want to do this.
17 THE COURT: I understand you don't and that these things
16 are embarrassing and hard to talk about but, you must.
19 (Pause)
20 THE COURT: If you need few moments to gather you're
21 emotions and think about it, we will take a few minutes break.
22 Do you want a break?
23
THE
WITNESS:
No.
Get it over
with.
24
THE
COURT:
Okay.
25
Here's
some
Kleenex if
there
isn't any in front of
26 -
you. Sorry.
27
THE
WITNESS:
Thank
you. She
just,
um, left the room and,
28
excuse me,
and um,
I like
wondering
"What
am I doing now ?" I
46
1 didn't take anything off. I'm just dancing. I stood there like
2 an idiot and then, ah, she came back in the room.
3 BY MR. FRAWLEY:
4 Q. By "she" you mean Breana?
5 A. Yes. And she knelt down and took the guy's pants
6 off and she had a condom in her mouth and she put it on him with
7 her mouth and -- and had oral sex with him and I walked out.
8 Q. Did she put the condom with her mouth on the
9 customer's penis?
10 A. Yes.
11 Q. Can you describe what, if any, physical contact you
12 observed Breana have with the customer before she left the room
13 to get the condom?
14 A. She was just touching him. Just being seductive
15 and then she left.
16 Q. Was the customer touching Breana?
17 A. I don't -- I can't remember all that stuff.
18 Q. Can you describe how Breana was touching the
19 customer?
20 A. I can't give you a minute -by- minute details. I
21 know she was being seductive and touching him.
22 THE COURT: Are you saying "seductive "?
23 THE WITNESS: Yes.
24 THE COURT: Okay.
25 THE WITNESS: Just, touching with her hands. Just -- I
26 don't know, his arms legs wherever, I mean.
27 BY MR. FRAWLEY:
28 Q. Did you observe Breana rub her buttocks against the
m
1
THE COURT: Yes.
2
BY MR.
FRAWLEY:
3
Q.
Did you -- were you successful in telling Mr. Hardy
4
about what had
occurred in the incident with Breana?
A.
I don't remember. I don't know. I blocked most of
10
it out. It is
two years ago. I forgot a lot.
7
Q.
Were you able to tell, in the brief time you worked
8
worked there,
who managed the business when Hardy was not there?
9
A.
No.
10
Q.
Who did you note answering the phones and dealing
11
with customers
as they came in?
12
A.
Ah, Tasha or anybody who was near the phone.
13
Q.
Did Breana also perform those functions?
14
A.
well, answered the phone? If it rang, they
15
answered it.
16
Q.
Did Dawna deal with customers as they came in the
17
business or phone calls?
18
A.
Yeah. Everybody answered the phone.
19
Q.
Was there anybody -- any of the other employees who
20
seemed to be
more in charge than an employee with a status of
21
yourself?
22
A.
Well, I guess Tasha, Breana and Dawna, but they
23
were there --
there longer so they knew how to answer the phone.
24
Just part of
the business.
25
Q.
Did you go by the name of "Tiffanie" while at
26
Stardust?
27
A.
Yes.
28
Q.
Did Mr. Hardy ever talk to you about how you could
v
c
O
a-
t
53
1 to me because when I went back for the second time he had the
2
film developed. He said "You want copies of the pictures ?" and
3
that's what
I'm there for the first place, was to model, and
4
that was it.
So he gave me the copies of the pictures.
5
Q.
Do you know --
6
A.
I don't remember if I gave him -- gave Henry the
7
whole set and
I took what I wanted and left them with him or
8
whether the
guy had given him a set. I don't -- I don't
9
remember.
10
Q.
Did you receive money for that session, those
11
sessions with
the photographer?
12
A.
Yes; that's what the $80 was for.
13
Q.
And you received that money from who?
14
A.
From Henry.
15
Q.
I am sorry. I don't hear you?
16
A.
From Henry when I went back to his office.
17
Q.
You see Henry Hardy in the courtroom today?
18
A.
Yes.
19
Q.
Would you identify where he is seated and describe
20
what it is
he is wearing?
21
A.
He is next to you. In the right.
22
MR.
FRAWLEY: Your Honor, may the record reflect the
23
witness has
identified the Defendant.
24
THE
COURT: Which color suit? Light color or -dark color?
25
THE
WITNESS: Light.
26
THE
COURT: Identifying the Defendant.
27
MR.
FRAWLEY: No further questions.
28
THE
COURT: Miss Ethridge, here is your copy of the
55
1
Q.
Did you ever engage in sexual intercourse with any
r
2
customers
at the business?
e
3
A.
Never.
4
Q.
Now, you indicated that you saw someone who you
5
have identified as Breana orally copulate one of the customers?
A.
Yes.
FRAWLEY: Offer Defense A, please, for
Q.
was that in 1989?
...
8
A.
Yeah; the same year. All in June.
9
Q.
All in June 19897
10
A.
Yes.
�r
11
Q.
That's during the first period of time that you
12
were at the
agency?
13
A.
May or June. I don't remember.
14
Q.
May or June. Now did you actually see her orally
15
copulate a
customer?
16
A.
I seen her start to and then I left the room.
r
17
Q.
When you say "You saw her start to," what did you
18 see her do?
19
A.
She put her mouth on his -- I can't.
r
e
20
Q.
These questions embarrass you?
21
A.
Yes.
22
MR.
FRAWLEY: Offer Defense A, please, for
23
identification.
...
24
THE
WITNESS: What?
25
THE
COURT: It will be marked.
26-
THE
WITNESS: What is he doing.
27
THE
COURT: He is marking an exhibit?
28
THE
WITNESS: What exhibit?
�wa�rn � n.nnwnV non 71 AG
72
1
with the customers?
2
A.
No.
3
Q.
Was there a contract that you filled out when you
4
came to the
studio?
5
A.
All I -- only contract I remember was that
6
negatives
or pictures were not to be released without my
7
consent.
That is all I remember. And then that I should get a
8
license to
be a model. I don't remember any contract about sex
9
or anything.
10
Q.
So the first time you ever heard about sex at the
11
studio was
when you saw Breana engaging in a sex act with at you
12
say customer?
13
A.
No. It was when -- no.
14
Q.
What was the first answer?
15
A.
It was when I was dancing and he started touching
16
himself.
17
Q.
Well, did you leave the room when he started
18
touchinc himself?
19
A.
No.
20
Q.
You stayed there and watched this?
21
A.
Yes. I stayed there and continued dancing.
22
Q.
You finished your dance routine?
23
A.
Yes.
24
Q.
Did he ejaculate?
25
A.
Yeah.
26
Q.
And you watched that, too?
2'
A.
I wasn't watching it. I wasn't even looking at
PTA
1
Q.
Did you touch both of those woman in some manner?
2
A.
Yes.
3
Q.
And did you touch either of those woman's breasts?
4
A.
Yes.
5
Q.
One or both of those women or both?
A.
Both.
7
Q.
Did you touch either of those women's buttocks?
8
A.
Um, I don't specifically remember that.
9
Q.
Did you touch either of those women's genital area?
10
A.
No, I don't know.
s
11
Q.
How did you pay for this performance?
:\ N'.
12
A.
Cash.
13
Q.
And how much cash?
�
14
A.
100 to begin; before.
15
Q.
Okay. When you say "before," can you describe for
16
the Judge
at what point you paid, you handed over the money?
17
A.
Um, when I walked in. I saw the girls decided I
18
wanted one
at that point.
19
Q.
Okay.
20
A.
A different girl, the girl that -- anyway a
21
different
girl.
22
Q.
Okay. You gave a different girl other than Janette
`
23
and Rena
the hundred dollars?
24
A.
Right.
25
Q.
And what was -- what if any agreement was there
26
what you
would receive for the hundred dollars?
27
A.
A half hour of dance.
28
Q.
Okay. Was any mention of sex made by either you or
87
1 the person you gave the money to?
2 A. No.
3 Q. Once in the session with the Janette and Rena, was
4 there a mention of you paying more money to get a specific
5 service or act by them? .
6 MR. REYNOLDS: Objection compound.
7 THE COURT: Overruled.
8 THE WITNESS: Repeat, please.
� V
9 BY MR. FRAWLEY-
10 Q. Once you were in the session with Janette and Rena,
11 was there any conversation about you paying additional money to
12 get a specific act from them?
13 A. Well, I chose Janette and then when she came in and
14 started then she said, "For another $50 she -- she had could
15 have Rena come in."
16 Q. Okay. Did you then agree to pay another $50?
17 A. Yeah.
18 Q. And when did you pay the $50 right then and there?
19 A. Yeah.
20 Q. Before Rena came in?
21 A. Yes.
22 Q. And who did you give the money to?
23 A. Janette.
24 Q. Prior to the time that Janette and Rena allowed you
25 to touch thier breasts and the time they touched your penis, was
26 there mention of additional money to be paid by you for these
27 actions?
28 A. No.
1
2.
3
4
5
•
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
0
W,
MR. REYNOLDS: Objection, assumes facts not in evidence.
The question was the use of the word "allow." There's been no
testimony they "allowed" him to touch, only that he touched.
THE COURT: Overruled. Go ahead. You can answer the
question if you can.
THE WITNESS: No.
BY MR. FRAWLEY:
Q. Did either Janette or Rena make use of a condom
during that session?
A. No one. My pants were on.
Q. When you described previously that you touched the
breasts of both women, was that the bare breast or over the
clothes?
A. Bare.
Q. After that did you tip either Rena or Janette?
A. Yes.
Q. In that session? How much?
A. $20.
Q. Each or altogether?
A. It is all I had. They were not happy about it,
but, yes.
Q. Did you go back to the Stardust businesz again
after that?
A. Yes.
Q. And did you pay money to have an employee perform
for you?
A. Yes.
Q. And do you recall the name of the employee that
DAVID J. O'GRADY, CSR 3146
DE
1 performed for you this next time?
2
A.
Yes.
3
Q.
What was her name?
4
A.
" Taryn."
5
Q.
And did you have any physical contact with Taryn?
6
A.
Yes.
7
Q.
Had you paid the money before you had physical
8
contact with
Taryn?
9
A.
Yes.
10
Q.
And how much money was that?
11
A.
100.
12
Q.
And do you recall who you gave the hundred dollars
13
to?
14
A.
Dawnay same as last time.
15
Q.
And was there any agreement before Taryn performed
16
for you about
what you would get for the hundred dollars?
17
A.
No.
18
Q.
Okay. Can you describe the physical contact that
19
you had -- that
you had, if anything, with Taryn during this
20
session?
21
A.
All -- um, she stripped down to her panties and,
22
ah, more or
less rubbed on me.
23
Q.
Did she rub you on your penis?
24
A.
Um, yeah.
25
Q.
And was your penis at this time exposed or did it
26
have clothes
over it?
27
A.
It was exposed.
28
Q.
And did she touch her mouth to your penis?
�d
E
V
UE
1
A.
No.
2
Q.
And did you touch any part of her body during this
3
session with
Taryn?
4
A.
Yeah.
5
Q.
And could you describe what parts of her body you
6•
touched?
7
A.
Um, pretty much all over except she had her panties
8
on. I didn't
touch there.
9
Q.
You say "all over." would that include the
A
breasts?
11
A.
Yeah.
12
Q.
would that include her buttocks?
13
A.
Yeah.
14
Q.
would that include the genital over her panties?
15
A.
No.
16
Q.
was there any discussion between you and Taryn that
17
you would
give her more money for allowing you to touch her and
18
for her to
touch you?
19
A.
No.
20
Q.
Did you tip Taryn?
21
A.
Yes.
22
Q.
How much?
23
A.
$40.
24
Q.
Did you go back another time after the sex with the
25
first session
with Taryn?
26
A.
Yes.
27
Q.
And do you recall what if any employee performed
28
for you Stardust
performed for you the next time?
91
1
A.
Taryn.
2
Q.
And on the second occasion that Taryn performed for
3
you did you
pay money before she performed?
4
A.
Yes.
5
Q.
And how much?
6
A.
Hundred dollar.
7
Q.
And do you recall who you gave the money to?
8
A.
I don't specifically remember the person that time.
9
Q.
And do you recall was there any agreement prior to
10
the performance
by Taryn on this second occasion with Taryn
11
about what
you would receive for the hundred dollar?
12
A.
No.
13
Q.
You say "no." Does that mean nothing beyond the
14
stated business
of dancing?
15
A.
Right. That's correct.
16
Q.
And after you paid the hundred dollars on the
17
second occasion
with Taryn did you have physical contact with
18
Taryn?
19
A.
Yeah.
20
Q.
And could you describe what physical contact you
21
had with Taryn?
22
A.
Um, she performed oral sex.
23
Q.
She performed oral sex on you?
24
A.
Yes.
25
Q.
And did she use a condom?
26-
A.
Yes.
27
Q.
And was it you or she that provided the condom?
28
A.
she did.
5
x�
14]
1
A.
Yeah.
2
Q.
How much?
3
A.
50.
4
Q.
Did you go back to the Stardust business in Oxnard
again after
that second occasion you saw Taryn?
A.
Yeah.
7
Q.
And did you again hire an employee to perform for
8
you?
9
A.
Yeah.
10
Q.
Do you recall the name of that particular employee?
11
A.
Krystal.
12
Q.
And how much money did you give -- well, did you
13
give somebody money before Krystal performed for you?
14
A.
Yes.
15
Q.
who did you give money to?
16
A.
Dawna.
17
Q.
And how much was that?
18
A.
100.
19
Q.
I am sorry?
20
A.
100.
21
Q.
And was there any agreement that you would receive
22
anything more
than dancing for that hundred dollars?
23
A.
No.
24
Q.
Did you subsequently have any physical contact with
25
Krystal when
she performed for you?
26•
A.
Yes.
27
Q.
And can you describe that physical contacted?
28
A.
Oral and intercourse.
C
U
C
1
Q.
And what did you tell 'em?
2
A.
"I'm in construction."
3
Q.
Did you give Krystal a tip at the end of this
4
session?
5
A.
Yeah.
6
Q.
How much did you give her?
7
A.
50.
8
Q.
Did you have any other physical contact with her
9
other than oral
sex, her on your and intercourse and touching
10
her breasts
and buttocks?
11
A.
No.
12
Q.
Did you go back to Stardust again after you had
13
this session
with Krystal?
14
A.
Yeah.
15
Q.
And did you have a dancer or an employee of
16
Stardust perform
for you on that occasion?
17
A.
Yeah.
18
Q.
And what was the name of the dancer?
19
A.
Breana.
20
Q.
And was Breana a different person than Krystal?
21
Not -- what
I am asking you is that is not two different names
22
for the same
person?
23
A.
No.
24
Q.
And did you pay money to someone before this
25
session with
Breana?
26-
A.
I gave her the money.
27
Q.
Is Breana -- do you recall is Breana the first
28
person you talked
to when you went in the door?
�D
o
I
it
M
1
A.
Right. She answered.
2
Q.
And was there an agreement or how much money did
3
you pay Breana?
4
A.
100.
5
Q.
Was there any agreement about what Breana would do
•for
the $100
other than dance?
7
A.
No.
8
Q.
Did you have physical contact with Breana once she
9
began to perform for you?
10
A.
Yes.
11
Q.
And could you describe that physical contact?
12
A.
Oral and intercourse.
13
Q.
And when you say "oral," can you describe it?
14
Somebody was
orally copulated, is that what you are saying?
15
A.
Yeah.
16
Q.
Who was orally copulated?
17
A.
She gave me head --
18
Q.
Okay.
19
A.
-- so it is clear.
20
Q.
was there a condom used during that act?
21
A.
Yeah.
22
Q.
Who provided the condom?
23
A.
She did.
24
Q.
And was a condom used during the intercourse?
25
A.
Yes.
26
Q.
And was that a condom that she provided?
27
A.
Same one.
28
Q.
Prior to those acts occurring intercourse and the
97
1
oral copulation, was there any agreement between you and Breana
2
that you would pay more money for these acts?
3
A.
No.
4
Q.
Did you touch Breana on the breast and buttocks
5
during this session?
6
A.
Not really, no.
7
Q.
Do you recall any other physical contact other than
8
the intercourse and oral copulation?
9
A.
No.
10
Q.
Did you given Breana a tip?
11
A.
40.
12
Q.
You mean $40?
13
A.
Yeah.
14
Q.
Did you give the name "Tom" to Breana also?
15
A.
All of 'em.
16
Q.
Did you go back to this Stardust business again
17
after the
session with Breana?
18
A.
Yes.
19
Q.
And did you have an employee of Stardust perform
20
for you on
that occasion?
21
A.
Yes.
22
Q.
And who was that?
23
A.
Is it okay if I look at a note?
24
Q.
That refreshes your recollection?
25
A.
Yeah. Because I am kind of nervous right now.
26
Q.
Yes?
27
A.
That is fine.
28
MR.
REYNOLDS: I ask that a copy be made of these notes.
s
s
1
2
3
4
i
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
'22
23
24
25
26-
27
28
A.
Q.
Janette?
A.
Q.
you?
100
No.
And describe any physical contact you had with
Oral and intercourse.
And do you mean to say that she orally copulated
A.
Yes.
Q.
And
was
there an agreement before these acts of
oral intercourse
or oral copulation and intercourse occurred
that you
would pay her more money?
A.
No.
Q.
And
was
a condom used?
A.
Yeah.
Q.
And
who
provided the condom?
A.
She
did.
Q.
Did
you
give her a tip?
A.
Yes.
Q.
And
was
the tip given after the performance was
over?
A. Yeah.
Q. How much?
A. 50.
Q. &50?
A. (Witness moves head up and down.) Yes.
Q. Answer out you loud.
A. I did.
Q. Sorry.
MR. FRAWLEY: Your Honor could we take a five minute
cy
O;
OVIN
1
A.
Oral and intercourse.
2
Q.
And the oral copulation was her on you?
3
A.
Yeah.
4
Q.
And was a condom used?
5
A.
Yeah.
6
Q.
who provied the condom?
•
7
A.
She did.
8
Q.
Did you give Krystal any additional money other
9
than the
original hundred dollars and then the $50 tip?
10
A.
No.
11
Q.
Did you go back to the Stardust again after the
12
30th or 31st?
13
A.
Yes.
14
Q.
And what date was that?
15
A.
February 7th.
16
Q.
And did you pay money for an employee to perform
17
for you?
18
A.
Yes.
19
Q.
And was that money paid before the employee --
20
A.
Yes.
21
Q.
-- performed?
'22
A.
Yes.
s
23
Q.
How much money was that?
24
A.
100.
25
Q.
Did you pay the money before the performance?
26
A.
Yes.
27
Q.
who did you give it to?
28
A.
Dawna.
•
486
642 FEDERAL SUPPLEMENT
Placing plaintiff in a part-time position
(as he suggests in the pretrial order) would
not solve the problem. For, as testified to
by Tommie Nix, even a part -time employee
would still have a fixed schedule. That is,
he would still be required to report on
given days and hours. Obviously, this
would not have solved plaintiff's problem if
his claim (that he cannot give advance no-
tice as to when he will be absent) is true.
[71 Plaintiff also suggested in the pre-
trial order that he be put in another job
with less pressure as an accommodation of
his problem. First, it must be noted that a
federal agency is under no obligation to
transfer a handicapped employee from the
job for which he is employed to some other
position in order to provide him with work
which he can perform. See the district
court opinions in Carty v. Carlin, 623
F.Supp. 1181, 1185 -89 (D.Md.1985); Alder•
son v. Postmaster General of the United
States, 698 F.Supp. 49, 55 (W.D.Ok.1984)
and in Jasany v. USPS, 33 FEP Cases
1115, 117 (N.D.Oh.1983), affd. 756 F.2d
1244 (6th Cir.1986).
(8) Second, although plaintiff could
have exercised his rights under the collec-
tive bargaining agreement to secure anoth-
er position, he failed to do so. Tommie Nix
testified that under the collective bargain-
ing agreement in effect between the Postal
Service and plaintiffs collective bargaining
representative that an ill or injured employ-
ee may be transferred to another job if he
meets certain criteria specified by the
agreement. However, a request must be
made by the employee for such a transfer.
Nix testified that the plaintiff never made
a request for any type of transfer. Al-
though plaintiff testified that he asked his
immediate supervisor for a transfer to an-
other job, he was obviously being less than
candid in making this assertion. On cross -
examination he was shown a copy of a
deposition which he had given previously
and verified that he had testified at pages
85 and 86 thereof that he had never told
anybody that he wanted to transfer to an-
other position nor had he ever tried to bid
on another job. Thus, plaintiffs assertion
that the Postal Service failed to accommo-
date him by moving him to another position
must be viewed in light of fhe_- faet1hiit the &'A_'
failed to even attempt to avail himself of
his contractual rights in this regard.
CONCLUSION
Plaintiff totally failed to present suffi-
cient proof to make out a prima facie case
with respect to any of the theories under
which he was attempting to try this law-
suit.
This Court's oral findings are hereby
amended pursuant to Rules 52(b) and
59(a)(2), FRCP, these new findings and con-
clusions are substituted, and the Clerk is
hereby directed to enter another judgment
based upon the findings and conclusions
set forth herein.
The Motion for a New Trial and the
Amended Motion for a New Trial are over-
ruled.
ALL OF THE ABOVE IS SO OR-
DERED.
w
O SMEIMUMMMWUM
T
BROADWAY BOOKS, INC., a Tennessee
corporation, Dexter Eugene Franklin,
d/b /a Peepers Adult Bookstore and
David Boles, d/b /a Cinema One Adult
Bookstore and Theatre, Plaintiffs,
V.
Gene ROBERTS, as Mayor for the City of
Chattanooga, John P. Franklin. Paul F.
Clark, James C. Eberle, Tom Kennedy,
as Members of the Board of Commis•
sioners of the City of Chattanooga, Eu-
gene N. Collins, as City Attorney for
the City of Chattanooga, and the City
of Chattanooga, Defendants.
No. CIV 1-66 -•194.
United States District Court,
E.D. Tennessee, S.D.
June 11, 1986.
As Amended June 12, 1986.
Operators of adult-oriented establish-
ments brought action challenging licensing
of the fact that he
to avail himself of
this regard.
;ION
I to present suffi-
a prima facie case
the theories under
1g to try this law-
adings are hereby
Rules 52(b) and
w findings and con -
1, and the Clerk is
r another judgment
,s and conclusions
Jew Trial and the
New Trial are over-
OVE IS SO OR-
snn,t
INC., a Tennessee
Eugene Franklin,
fit Bookstore and
Cinema One Adult
Are, Plaintiffs,
ayor for the City of
?. Franklin, Paul F.
erle, Tom Kennedy,
Board of Commis.
d Chattanooga, Eu.
City Attorney for
loom and the City
Pendants.
— 86-194.
)istrict Court,
wee, S.D.
1986.
ine 12, 1986.
Itoriented establish -
:hallenging licensing
BROADWAY BOOKS, INC. v. ROBERTS 487
Cite u 643 F-%". 4" (ED.Teno. 19t6)
ordinance. The District Court, Edgar, J., 5. Constitutional Law 6 =82(4)
held that: (1) ordinance was not overbroad Law will not be voided on grounds of
or vague; (2) requirement that viewing overbreath unless its overbreath is sub
booths be open to view was related to city's stantial in relation to the statute's plainly
health concerns and did not violate First legitimate sweep.
Amendment; (3) requirement that appli-
cants disclose names and criminal records 6. Theaters and Shows 4=3
did not violate First or Fifth Amendment
rights; (4) $500 annual license fee did not
excessively burden First Amendment
rights., (5) restrictions on hours of opera.
tion did not violate First Amendment; but
(6) 30-day residency requirement for appli-
cants and requirement that applicants be of
good moral character were unconstitution-
al.
Order accordingly.
I. Constitutional Law 6=90.4(1)
Ordinance establishing licensing proce-
dure for adult-oriented establishments was
not enacted for the purpose of limiting
speech on the basis of its content and was
not presumptively invalid. U.S.C.A. Const
Amend. 1.
2. Constitutional Law 4=90.1(1), 230.3(1)
City is not prevented by First Amend.
ment or equal protection clause from classi-
fying and regulating adulWriented estab
lishments differently than other places of
entertainment U.S.C.A. Const.Amends. 1,
14.
S. Constitutional law 4=90.4(1)
Adult-oriented establishment licensing
ordinance merely regulated time, place, and
manner of exercise of First Amendment
rights and set narrow, objective, and defi-
nite standards to guide the licensing au.
thority in issuing a license and thus did not
constitute an unlawful prior restraint
U.S.C.A. ConatAmend. 1.
4. Constitutional Law 4582(4)
Law is overbroad if it does not aim
specifically at evils within the allowable
area of control but sweeps within its ambit
activities that constitute exercise of First
Amendment rights. U.S.C.A. Cont.
Amend. 1.
Chattanooga adult-oriented establish.
ment licensing ordinance was precisely
aimed at matters within power of city to
regulate and was not overbroad.
7. Constitutional Law 6582(4)
Void for vagueness doctrine holds that
enactment will be void for vagueness if its
Prohibitions are not dearly defined; doc-
trine incorporates notions of fair notice or
warning.
B Municipal Corporations 65594(2)
Statutes "7
Statute or ordinance must contain nar.
row, objective, and definite standard to
guide those who exercise the authority to
restrict protected constitutional right;
standards must be susceptible to objective
measurement and terms of the regulation
should be precisely defined.
9. Theaters and Shows 4a3
. Chattanooga licensing ordinance for
adult-oriented establishments was not void
for vagueness as it set up clearly the proce.
dures to be followed to apply for license
and standards guiding issuance of license.
10. Theaters and Shows 4-3
In enacting licensing ordinance for
adult-oriented establishments, city was not
required to find by judicially allocated bur
den of proof that ordinance was necessary
to achieve desired results; to establish sub-
stantial governmental interest, it was nea
essary only that city demonstrate that evi-
dence which it relied upon was reasonably
believed to be relevant to problem ad.
dressed by ordinance.
11. Theaters and Shows 4=3
There was rational relationship be•
tween licensing ordinance requiring that
entire interior portion of booths in which
adult entertainment was provided be visible
from common area of premises and not
•
ro
642 FEDERAL SUPPLEMENT
blocked by curtains or doors and city's
health concerns.
12. Constitutional Law e=8200)
Customers of adult-oriented establish-
ments had no privacy rights secured by the
First Amendment to watch videos in se-
clusion or to masturbate themselves and
others in the seclusion of viewing booths.
U.S.C.A. Const.Amend. 1.
13. Theaters and Shows 8-3
City licensing ordinance requiring that
booths used for viewing adult-oriented en-
tertainment be open to view from common
areas of the establishment and not ob-
scured by doors or partitions was valid.
14. Constitutional Law 18-82(10), 287.2(1)
Adult-oriented establishment licensing
ordinance requiring applicants to provide
their names and all aliases as well as prior
convictions did not violate First or Fifth
Amendment rights of applicants. U.S.C.A.
Const.Amends. 1. 5.
15. Constitutional Law 4=+90.4(1)
Annual license fee of $500 charged by
city for adult-oriented establishments did
not violate applicants' First Amendment
rights in view of testimony that it would
cost the city $500 to process each applica.
tion for a license and to enforce the ordi-
nance for one year. U.S.C.A. Const.
Amend. 1.
16. Constitutional Law 4=90.4(1), 240(1)
Provision of city licensing ordinance
for adult-oriented establishments requiring
that establishments be closed in the early
morning hours and until noon on Sunday
did not violate equal protection or First
Amendment rights of operators. U.S.C.A.
Const.Amends. 1, 14.
17. Municipal Corporations e-121
Operators of adult-oriented establish-
ments which did not provide live entertain-
ment lacked standing to challenge provi-
sion of ordinance prohibiting operator of
adult-oriented establishment from collect-
ing any portion of fee for entertainment
before its completion.
18. Theaters and Shows �r--3
Provisions of adult- oriented licensing
ordinance that every act by an employee is
to be deemed the act of the operator if it
occurs with his authorization, knowledge,
or approval or as a result of his negligent
failure to supervise did not impermissibly
penalize licensees for activity over which
they had no control.
19. Constitutional Law 8=213.1(1)
Durational residence requirements
must be measured by strict equal protec-
tion test and are unconstitutional unless
governing authority can demonstrate com-
pelling governmental interest and that in-
terest must be all the more compelling
where First Amendment rights are in-
volved. U.S.C.A. Const.Amends. 1, 14.
20. Constitutional Law 4=230.3(1)
City did not demonstrate compelling
governmental interest which would justify
30-day residence requirement for operators
of adult-oriented establishments and provr
sion violated equal protection. U.S.C.A.
Const.Amend. 14.
21. Constitutional Law 4=90.4(1)
Provisions of adult-oriented establish-
ment licensing ordinance requiring license
applicant to supply written statements of
five persons that the applicant is of good
moral character and prohibiting issuance of
license unless the applicant is of good mor-
al character and reputation in the communi-
ty would permit prior restraint on First
Amendment rights through application of
amorphous standard. U.S.C.A. Cont.
Amend. 1.
David Haines Rotroff, Chattanooga,
Tenn., Charles W. Boyle, Atlanta, Ga., for
plaintiffs.
Randall L. Nelson, W. Lee Maddux, Phil-
lip A. Noblett, Chattanooga, Tenn., for de-
fendants.
MEMORANDUM
EDGAR, District Judge.
This is an action brought by the owners
of three adult bookstores in Chattanooga,
ited licensing
n employee is
operator if it
11, knowledge,
his negligent
impermissibly
v over which
13.1(1)
requirements
equal protect
utional unless
ionstrate com-
a and that in-
�re compelling
tights are in-
•nds. 1, 14.
30.3(11
As compelling
would justify
t for operators
•nts and provi-
ion. U.S.CA
0.4(U
-ited establish -
luiring license
statements of
ant is of good
.ng issuance of
s of good morn
t the communi-
,raint on First
application of
S.C.A. Const
Chattanooga,
tlanta, Ga., for
t Maddux, Phil-
Term., for de-
'M
by the owners
n Chattanooga,
BROADWAY BOOKS, INC. v. ROBERTS
C1te u 642 FauPP• 686 M- D.Tean. 1"6)
any jurisdiction within five (5) years
immediately preceding the date of the
application.
(iii) The applicant shall have been a
resident of the City of Chattanooga or
its environs continuously for thirty (30)
days immediately preceding the date of
the application.
(iv) The applicant shall not have been
found to have previously violated this
ordinance within five (5) years imme&
ately preceding the date of the applica-
tion.
Tennessee for a declaratory judgment that
the recently enacted City of Chattanooga
Ordinance 8601 is unconstitutional, in
whole or in part, and for injunctive relief.
This case has been fully heard on the mer-
its and is now ready for disposition.
Ordinance 8601. establishes a licensing
procedure for "adult-oriented establish-
ments" which are defined to include "adult
bookstores", "adult motion picture the-
aters", "adult mini -motion picture the-
aters" and "adult cabarets."
The plaintiffs in this case are three of
approximately eleven adult-oriented estab-
lishments in the Chattanooga area which
provide closed booths for patrons to watch
coin.operated video machines depicting
erotic sexually explicit activity. The ordi.
nance requires licenses for operating these
adult-oriented establishments. There is no
question that the plaintiffs in this suit fall
within the confines of this ordinance and
would require a license to continue to oper-
ate. The ordinance also requires that any -
"entertainer" in these establishments ob-
tain a permit.'
License applicants must furnish specified
information to the City Treasurer to obtain
a license. This disclosure must also be
made by partners of partnership appli-
cants, and by officers, directors and the
owners of more than five percent (5`k) of
the stock of corporate applicants.
In order to receive a license to operate an
adult-oriented establishment, an applicant
must meet the following standards which
are specified in section 7 of the ordinance:
1. If the applicant is an individual:
(i) The applicant shall be at least eigh-
teen (18) years of age and a person of
good moral character and reputation in
the community in which he or she re-
sides.
(ii) The applicant shall not have been
convicted of or pleaded nab conten-
dere to a felony or any crime involving
moral turpitude, prostitution, obscenity
or other crime of a sexual nature in
1. There is evidence that the "Fox (not a plain-
tiff in this action), one of the chattanooga adult.
oriented establishments, provides live entertain-
489
Similar issuance standards apply to offi-
cers, directors and stockholders of corpora-
tions where the applicant is a corporation
and to partners in joint venturers when the
applicant takes those business forms.
The ordinance requires a payment of a
8500 fee to be submitted with the applica.
tion for an operators license. One-half of
the fee is returned if the application is
denied. The licenses are to be renewed
upon application annually.
A key provision of the ordinance is spe-
cifically directed at the booths which are
contained within these establishments.
The ordinance provides in section 14(g)
that:
Every adult-oriented establishment shall
be physically arranged in such a manner
that the entire interior portion of the
booths, cubicles, rooms or stalls, wherein .
the adult entertainment is provided, shall::
be visible from the common area of the
premises. Visibility shall not be blocked
or obscured by doors, curtains, parti-
tions, drapes, or any other obstruction
whatsoever. It shall be unlawful to im
stall booths, cubicles, -rooms or stalls_
within adult-oriented establishments
the
whatever purpose, but especially for
Ipurpose of secluded viewing of sdulbart
ented motion Pictures or other types of
adult entertainment.
The ordinance contains several other pro
visions which will be discussed below. The
meat in the form of a dancing girl behind a
clear plexiglass screen.
•
490
642 FEDERAL SUPPLEMENT
entire ordinance is attached as Appendix A
to this memorandum opinion.
11 -91 Ordinance 8601 as a whole regu-
lates the time. place and manner of expres-
sion. While its implementation may have
some impact upon constitutionally protect-
ed first amendment activity, the Court
finds that it was not enacted for the pur-
pose of limiting speech on the basis of its
content. The ordinance is not directed at
future expression by businesses. See City
of Paducah v. Investment Entertainment,
Inc.. 791 F.2d 463 (6th Cir.1986). Further-
more. the City is not prevented by the first
amendment nor by the fourteenth amend-
ment's equal protection clause from classi-
fying and regulating adult-oriented estab-
lishments differently from other places of
entertainment. Young v. American Mini
Theaters, Inc.. 427 U.S. 50. 96 S.Ct. 2440,
49 L.Ed.2d 310 (1976). City of Minot v.
Central Ave. Netas, 308 N.W.2d 851 (N.D.
L Plaintiffs launch a broad attack against Ordi.
nance 8601 on several grounds. This includes a
claim that it is an unconstitutional prior re-
straint of speech, unconstitutionally vague and
overbroad.
However, this ordinance merely regulates the
time, place and manner of the exercise of fast
amendment rights and sets forth narrow, objec-
tive and definite standards to guide the licensing
authority in issuing the license. It does not,
therefore, constitute an unlawful prior restraint.
Ste Young v. American Mini Theaters, Inc... 427
U.S. 50. % S.Ct. 2440, 49 LEd.2d 310 (1976);
Shualesworth v. City of Birmingham, 394 U.S.
147, 89 S.CL 935, 22 LEd.2d 162 (1 %9).
Regarding plaintiffs' merbreadth and vagueness
arguments, a law is overbroad if it does not aim
specifically at evils within the allowable area of
control but sweeps within its ambit activities
that constitute an exercise of fast amendment
rights. Berimnan v. City of rupela, Mississippi,
664 F.2d 502, 507 (5th Cir.1981) citing 7hornhiii
v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84
LEd. 1093 (1940). However, a law will not be
voided on these grounds unless its overbreadth
is substantial in relation to the statute's plainly
legitimate sweep. Broudrick v. Oklahoma, 413
US. 601, 605, 93 S.CL 2908, 37 LEd. 830 (1973).
Because, as discussed later in this memoran-
dum, this Court finds that the ordinance is pre-
cisely aimed at matters which are within the
power of the City to regulate, the Court cannot
say that the ordinance is overbroad in any way.
Rather, the ordinance achieves its ends without
preventing the free flow of ideas protected by
the first amendment Thus, the statute is not
invalid on overbreadth grounds.
1981): Airport Book Store, Inc. v. Jack-
son, 242 Ga. 214, 248 S.E.2d 623 (1978).
Therefore, Ordinance 8601 is not presump.
tively invalid under the first amendment.
Renton, v. Playtime Theaters, Inc., —
U.S. —, 106 S.CL 925, 89 L.Ed.2d 29
(1986); Young v. American Mini Theaters,
Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d
310 (1976); Hart Book Stores, Inc. v. Ed-
misten, 612 F.2d 821 (4th Cir.1979).2
This ordinance is constitutional if it is
designed to serve a substantial governmen-
tal interest and does not limit alternative
avenues of communication. Renton, —
U.S. at —, 106 S.Ct. at 928, 89 LEd.2d at
37. An even more precise formula for test-
ing the constitutional validity of this ordi-
nance has been provided by the Supreme
Court in United States v. O'Brien, 391
U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672
(1968), which held that this genre of regula-
tion is sufficiently justified:
The void- for - vagueness doctrine holds that an
enactment will be void for vagueness if its pro.
hibitions. are not clearly defined. Grayned v.
City of Rvcklord, 408 US. 104, 108-09, 92 S.CL
2294, 2298 -99, 33 LEd.2d 222 (1972). The doc.
trine incorporates the notions of fair notice or
warning. Smith v. Goguen, 415 US. 566, 572,
94 S.Ct. 1242, 1246, 39 LEd.2d 605 (1974). It
requires legislative bodies to set reasonably
clear guidelines for law enforcement officials
and triers of fact in order to prevent arbitrary
and discriminatory enforcement. ld Thus, a
statute or ordinance must contain narrow, ob-
jective and definite standards to guide those
who exercise the authority to restrict protected
constitutional rights. Shuttlesworth v. City of
Birmingham, 394 US. 147, 89 S.Ct. 935, 22
LEd.2d 162 (1969). The standards must be
susceptible to objective measurement; and the
terms of the regulation should be precisely de-
fined. See Keyishian v. Board of Regent;, 385
U.S. 589, 87 S.Ct. 675, 17 LEd.2d 629 (1 %7);
NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9
LEd.2d 405 (1 %3).
As stated above, the ordinance under considera-
tion meets all of these requirements. It sets out
clearly and precisely the procedures that must
be followed to apply for the license and the
standards guiding issuance of the license. It
cannot be said that the ordinance as a whole
does not provide fair warning or impermissibly
delegates basic policy matters to administrative
officials for resolution on an ad hoc or subjec-
tive basis. See Grayned v. City of Rockford 408
US. 104, 108 - 109. 92 S.Ct. 2294, 2298 -99, 33
LEd.2d 222 (1972). Thus, the Court finds that
the ordinance is not unconstitutionally vague.
?3
e, Inc. v. Jack -
:.2d 623 (1978).
is not presump-
rst amendment.
tters, Inc., —
89 L.Ed.2d 29
t Mini Theaters,
-'440, 49 L.Ed.2d
wes, Inc. v. Ed-
Cir.1979) 2
tutional if it is
^tia -1 governmen-
limit alternative
Renton, —
28, 89 L.Ed.2d at
formula for test -
dity of this ordi-
by the Supreme
v. O 'Brien, 391
20 L.Ed.2d 672
genre of regula-
,d:
trine holds that an
vagueness if its pro•
efined. Grayned v.
too. 10&-09, 92 S.CL
32 (1972). The doc-
>ns of fair notice or
1. 415 US. 566. 572.
id.2d 605 (1974). It
; to set reasonably
.nforcement officials
to prevent arbitrary
ement. fd Thus. a
contain narrow. ob-
lards to guide those
to restrict protected
,ttfeswortk v. City of
47. 89 S.CL 933. 22
e standards must be
kasurement- and the
weld be precisely de-
9oard of Regent; 385
7 LEd.2d 629 (1967):
i. 41S. 83 S.CI. 328. 9
,ante under considera-
luirements. It seta out
procedures that must
r the license and the
ice of the license. It
ordinance as a whole
ruing or impermissibly
users to administrative
n an ad hoe or subjec•
P. City of Rock ford 408
�.Ct. 2294. 2298 -99. 33
rs, the Court finds that
iconstitutionaUy, vague.
BROADWAY BOOKS, INC. v. ROBERTS
ate m 642 FSupp. 466 (ED.Tea 1986)
... if it is within the constitutional power
of the Government; if it furthers an im-
portant or substantial governmental in-
terest; if the governmental interest is
unrelated to the suppression of free ex-
pression; and if the incidental restriction
on alleged first amendment freedoms is
no greater than is essential to the fur-
therance of that interest.
391 U.S. at 377, 88 S.Ct. at 1679. With the
exceptions noted below, this Court finds
that Ordinance 8601 meets these require-
ments in every respect.
These adultoriented establishments are
a substantial law enforcement problem for
the Chattanooga Police Department —and
particularly for its vice squad. Since 1982,
Chattanooga police officers have arrested
numerous people at these establishments
for sex - related crimes such as prostitution,
selling obscene material to juveniles, inde-
cent exposure, assignation, and solicitation
to commit an unnatural sex act. There
have been 112 such arrests since 1982.
These are in addition to numerous arrests
at these establishments on other charges
such as gambling, assault and battery, and
public drunkenness. Some of the arrests
have been of employees at these establish-
ments, including the plaintiff establish-
ments. On numerous occasions, plain-
clothes police officers and others at these
places have been grabbed by the genitals
or otherwise solicited for homosexual activ-
ity.
In addition, these establishments, partic-
ularly the closed booths, have been found
to be filthy. Police officers and others.
have found semen and blood on the walls,
floors and video screens; dirty Kleenex
stuck to the walls; condoms on the floors;
and defecation and urine on the floors.
These booths frequently contain "glory
holes" or holes cut or smashed out between
the booths to permit inter-booth sexual ai:-
tivity. Officers have observed more Wren
one person enter one of these booths and
have observed people masturbating there-
In. The Chattanooga City Commission,
with the above information, enacted Ordi-
nary 8601.
W2 F.Spp.-1a
Iin
491
The Commission made specific findings
the ordinance regarding the problems
ountered as a result of these unregulat-
adultoriented establishments. (See the
amble and section 1 of the ordinance.)
e of the Commission's paramount con..
as was the health hazard created by
se establishments and the increased inci-
ce of Acquired Immune Deficiency Sys-
me (AIDS) which have been reported m
Chattanooga area. Dr. Katherine Han-
s of the Hamilton County Health De•
tment testified that exposure to the
od and semen in these booths could
asmit the HTLV –III virus that carries
)S, not to mention the exposure which
Id be generated by a" acts conducted
)ugh the "glory holes."
(10,111 The City of Chattanooga in en-
acting Ordinance 8601 was not required to
find by a judicially allocated burden of
proof that the ordinance was necessary to
achieve the desired results. The Fourth
Circuit recently said in Wall Distributors,
Inc. v. City of Newport News, Va., 782
F.2d 1165, 1169 (4th Cir.1986), that
Judicial review goes only to whether the
legislative determination of justification
and fitness is not facially without factaw
support, hence not arbitrary and capri-
cious.
To establish a substantial governmental
interest, it is necessary only that the City
here demonstrate that the evidence which
it relied upon "is reasonably believed to be
relevant to the problem that the city ad-
dresses:" Renton, — U.S, at —, 106
S.Ct. at 930, 89 LEd.2d at 40. The Court
finds that the City of Chattanooga in enact-
ing Ordinance 8601 acted properly upon
such reasonable belief. There is here a
rational relationship between the ordinance
and the hazard which it is designed to
alleviate. CLR Corp. v. Hemline, 702 F.2d
637 (6th Cir.1983). Moreover, the Court
finds that the City has established that as a
whole, the provisions of Ordinance 8601 are
necessary to alleviate that hazard. Keego
Harbor Co. v. City of Keego Harbor; 657
F.2d 94 (6th Cir.1981). The Court funds
that the City of Chattanooga in enacting
492
642 FEDERAL SUPPLEMENT
the ordinance, acted constitutionally within
its police power, and in furtherance of a
substantial governmental interest un-
related to the suppression of free expres-
sion. Thus, the first three prongs of the
O'Brien test are satisfied.
Plaintiffs contend, however, that the
fourth prong of the O'Brien test is not met
because in certain particular respects the
method by which the City has elected to
accomplish its stated goals is greater than
is essential to accomplish the furtherance
of the governmental interest. This conten-
tion is discussed below in relation to the
specific provisions of the ordinance chal-
lenged by plaintiffs.
The Open Booth Requirement
The plaintiffs particularly object to the
ordinance's above quoted requirement that
the booths must be visible from the com-
mon area of the premises. What the ordi-
nance simply provides is that the doors,
curtains or any other obstruction be re-
moved from the booths so that activity
within these booths can be observed by
inspecting police officers or health officials.
(12) The plaintiffs contend on behalf of
their customers that the customers have a
privacy right included within the "penum-
bra" of rights secured by the first amend-
ment to watch these videos in seclusion.
See Griswold u Connecticut, 381 U.S. 479,
85 S.CL 1678, 14 LEd.2d 510 (1965). This
contention is without merit. First, it is
unclear whether the owner of a theater has
standing to assert the constitutional rights
of patrons. Ellwest Stereo Theaters, Inc.
v. Wenner, 681 F.2d 1243, 1247 (9th Cir.
1982). Second, to accede to plaintiffs' ar-
gument would be tantamount to finding
that the patrons have some kind of right to
masturbate themselves and others in the
seclusion of these booths. This is not a
"right" which is protected by the first
amendment. While one may be entitled to
engage in this activity in the privacy of
one's home, there is no such entitlement to
do so in a public place. As the Ninth
Circuit recently stated in Ellwest Stereo
Theatres, Inc. v. Wenner.
We decline to hold that the "right" to
unobserved masturbation in a public the.
ater is "fundamental" or "implicit in the
concept of ordered liberty."
681 F.2d at 1248.
(131 The open booth requirement of Or.
dinance 8601 is therefore valid. It is a
restriction which is no greater than is es.
sential to the furtherance of a substantial
governmental interest and fully meets the
O'Brien test. Similar open booth require-
ments have recently been upheld by the
Fourth Circuit in Wall Distributors, Ina a
City of Newport News, Ila, 782 F.2d 1165
(4th Cir.1986); the Ninth Circuit in Ellwest
Stereo Theatres, Inc. v. Wenner, 681 F.2d
1243 (9th Cir.1982); and by the Supreme
Court of Kansas in Moody v. Board of
County Commissioners, 237 Kan. 67, 697
P.2d 1310 (1985).
Other Provisions of the Ordinance
A. Disclosure of Applicants'Names and
Criminal Records
Plaintiffs contend that the provisions of
Ordinance 8601 which require that appli-
cants provide their names and all aliases as
well as their prior convictions on all of-
fenses except minor traffic violations is a
violation of the plaintiffs' first amendment,
as well as their fifth amendment, rights.
1141 It goes without saying that an ap•
plication without a name would be mean-
ingless. The record shows that police have
found the adultoriented establishment op-
era tors to be using aliases. The City is
certainly entitled to know who is operating
these establishments. The City provided
ample proof that these adult-oriented estab-
lishments are repositories of various vane•
ties of crime in addition to sex - related
crime, and that the operators of these es-
tablishments are themselves sometimes en-
gaged in this crime. It is a proper exercise
of the police power to define the qualifcam
tions for one who engages in an occupation'
affecting the public health, safety, morals
or welfare. Airport Book Store, Ina v.
Jackson, 242 Ga. 214, 248 S.E.2d 623, 628
(1978). The City's legitimate goal of crime
hat the "right" to
ion in a public the -
or "implicit in the
erty.
requirement of Or-
)re valid. It is a
greater than is es-
ce of a substantial
nd fully meets the
)pen booth require-
!en upheld by the
Nstributors, Ina V.
Va., 782 F.2d 1165
a Circuit in Ellwest
Wenner, 681 F.2d
A by the Supreme
'oody v. Board of
s, 237 Kan. 67, 697
the Ordinance
ieants' Names and
it the provisions of
require that appli-
es and all aliases as
,kvictions on all of-
affic violations is a
's' first amendment,
amendment, rights.
L saying that an ap-
se would be mean -
rws that police have
d establishment op-
liasee. The City is
rw who is operating
The City provided
adult-oriented estab-
ies of various varie-
ition to sex - related
erators of these es-
,elves sometimes en-
is a proper exercise
define the qualifics-
ges in an occupation
m1th, safety, morals
Book Store, Inc- a
248 S.E.2d 623, 628
timate goal of crime
BROADWAY BOOKS, INC. Y. ROBERTS 493
Ow u 642 F.Supp. 686 (E.D.Two 1986)
B. License Fee Requirement
[15] Plaintiffs contend that the $500 an-
nual license fee excessively burdens their
first amendment rights. The Court rejects
this contention. The City has amply dem-
onstrated through the testimony of Assist-
ant Chief Dinsmore that it would cost the
City $500 to process each application for a
license and to enforce the ordinance for one
year for each establishment. Such a li-
cense fee is not unconstitutional so long as
it is imposed as a regulatory measure to
defray the cost of investigating the license
applicant. Murdock v. Commonwealth of
Pennsylvania, 319 U.S. 105, 114, 63 S.Ct.
870, 875, 87 L.Ed. 1292 (1943); Airport
Book Store, Inc., 242 Ga. 214, 248 S.E.2d
623, 627 (1978) (approving a $500 license
fee in a similar ordinance). Since the en-
forcement will be related directly to main-
taining the sanitary conditions of these es-
tablishments and to law enforcement rath-
er than to anything related to the suppres-
sion of speech, the Court finds that portion
of the fee attributable to enforcement to be
justified. The fee as a whole is as minimal
as necessary to meet the costs of the City.
Bayside Enterprises, Inc., 470 F.Supp. at
1149. Under these circumstances, this part
of the ordinance is constitutionally valid.
C. Hours of Operation Requirement
[16] Plaintiffs contend that the City has
no rational purpose for the ordinance's
"hours of operation" requirement and that
requiring these establishments to be closed
in the wee hours of the morning and until
noon on Sundays is a violation of equal
protection. The City prescribes hours of
operation for pool halls, movie theaters,
pawnbrokers, beer sellers, massage par-
lors and numerous other endeavors. The
hours of operation requirement furthers a
legitimate law enforcement purpose and
does not discriminate in any way against
adult-oriented establishments. Certainly it
cannot be said that the required closure of
these places for a few hours is any im-
pingement on first amendment rights.
Star Satellite, Inc. v. City of Bilozl, 779
F.2d 1074 (5th Cir.1986). Thus, the Court
rejects plaintiffs' arguments on this issue
and holds that this section does not violate
any of plaintiffs' constitutional rights.
D. Advanee Collection Provision
Section 14(i) provides that:
No operator, entertainer, or employee of
an adult-oriented establishment shall de-
mand or collect all or any portion of a fee
for entertainment before its completion.
[17] At the hearing, it was established
that this provision was directed solely at
the charging of fees for live entertainment.
While the wording of this provision is not
very clear in this regard, the Court will
construe this provision narrowly to apply
only to live entertainment. Police Lieuten-
ant Roy Glenn testified that the purpose of
this provision was to protect patrons from
being defrauded by the live dancers who
sometimes terminate their dancing in mid-
stream unless patrons stuff more money
through the plexiglass screen.
prevention makes it clear that it has a
substantial governmental interest in insur-
ing that the persons who operate these
establishments also do not have criminal
records. See lacobucci v. City of New-
t
port, 785 F.2d 1354, 1357 (6th Cir.1986)
(ordinance requiring employees of estab-
lishments serving liquor to register with
:.
police department, be fingerprinted, and
photographed). There has been no show-
ing that these requirements would chill
" % --
plaintiffs first amendment rights. Bay -
A''
side Enterprises, Inc. v. Carson, 470
F.Supp. 1140, 1147 (M.D.Fla.1979).
Nor do these disclosure requirements in
fringe on plaintiffs' fifth amendment
k,
rights. Before there can be a fifth amend -
ment violation, it must appear that the
threat of prosecution is real, appreciable
and not imaginary. It must be shown that
there is a causal link between the disclo-
sure and probable prosecution. California
v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29
L.Ed.2d 9 (1971). No such link is present
here. See State v. Huddleston, 412 A.2d
1148 (1980).
B. License Fee Requirement
[15] Plaintiffs contend that the $500 an-
nual license fee excessively burdens their
first amendment rights. The Court rejects
this contention. The City has amply dem-
onstrated through the testimony of Assist-
ant Chief Dinsmore that it would cost the
City $500 to process each application for a
license and to enforce the ordinance for one
year for each establishment. Such a li-
cense fee is not unconstitutional so long as
it is imposed as a regulatory measure to
defray the cost of investigating the license
applicant. Murdock v. Commonwealth of
Pennsylvania, 319 U.S. 105, 114, 63 S.Ct.
870, 875, 87 L.Ed. 1292 (1943); Airport
Book Store, Inc., 242 Ga. 214, 248 S.E.2d
623, 627 (1978) (approving a $500 license
fee in a similar ordinance). Since the en-
forcement will be related directly to main-
taining the sanitary conditions of these es-
tablishments and to law enforcement rath-
er than to anything related to the suppres-
sion of speech, the Court finds that portion
of the fee attributable to enforcement to be
justified. The fee as a whole is as minimal
as necessary to meet the costs of the City.
Bayside Enterprises, Inc., 470 F.Supp. at
1149. Under these circumstances, this part
of the ordinance is constitutionally valid.
C. Hours of Operation Requirement
[16] Plaintiffs contend that the City has
no rational purpose for the ordinance's
"hours of operation" requirement and that
requiring these establishments to be closed
in the wee hours of the morning and until
noon on Sundays is a violation of equal
protection. The City prescribes hours of
operation for pool halls, movie theaters,
pawnbrokers, beer sellers, massage par-
lors and numerous other endeavors. The
hours of operation requirement furthers a
legitimate law enforcement purpose and
does not discriminate in any way against
adult-oriented establishments. Certainly it
cannot be said that the required closure of
these places for a few hours is any im-
pingement on first amendment rights.
Star Satellite, Inc. v. City of Bilozl, 779
F.2d 1074 (5th Cir.1986). Thus, the Court
rejects plaintiffs' arguments on this issue
and holds that this section does not violate
any of plaintiffs' constitutional rights.
D. Advanee Collection Provision
Section 14(i) provides that:
No operator, entertainer, or employee of
an adult-oriented establishment shall de-
mand or collect all or any portion of a fee
for entertainment before its completion.
[17] At the hearing, it was established
that this provision was directed solely at
the charging of fees for live entertainment.
While the wording of this provision is not
very clear in this regard, the Court will
construe this provision narrowly to apply
only to live entertainment. Police Lieuten-
ant Roy Glenn testified that the purpose of
this provision was to protect patrons from
being defrauded by the live dancers who
sometimes terminate their dancing in mid-
stream unless patrons stuff more money
through the plexiglass screen.
•
494
642 FEDERAL SUPPLEMENT
While the requirement of standing is
somewhat relaxed in a first amendment
setting, Broadrick v. Oklahoma, 413 U.S.
601, 93 S.Ct, 2908, 37 L.Ed.2d 830 (1973), a
plaintiff must still have a direct stake in
the outcome before there can be an article
III "case or controversy." .Genusa v. City
of Peoria, 619 F.2d 1203, 1210 (7th Cir.
1980). In this case, none of the plaintiffs
provide live entertainment at their estab-
lishments. Therefore, it is clear that they
lack standing to attack this particular pro-
vision of the ordinance. The Court there-
fore declines to reach the question of the
constitutionality of this provision of the
ordinance.
E. Respondeat Superior
Sections 14(c) and (d) of the ordinance
provide:
(c) Every act or omission by an employee
constituting a violation of the provi-
sions of this ordinance shall be
deemed the act or omission of the
operator if such act or omission oc-
curs either with the authorization,
knowledge or approval of the opera-
tor, or as a result of the operator's
negligent failure to supervise the em-
ployee's conduct, and the operator
shall be punishable for such act or
omission in the same manner as if the
operator committed the act or caused
the omission.
(d) An operator shall be responsible for
the conduct of all employees while on
the licensed premises and any act or
omission of any employee constitut-
ing a violation of the provisions of
this Ordinance shall be deemed the
act or omission of the operator for
purposes of determining whether the
operator's license shall be revoked,
suspended or renewed.
[18] Plaintiffs object to these pars -
graphs as unreasonably hindering their
first amendment rights. These provisions
do not penalize a licensee for activity over
which the license has no control. Chutchi-
an v. City of Indianapolis, 633 F.2d 27, 32
(7th Cir.1980). They are, therefore, valid
under the O'Brien test.
F. Residence Requirement
[191 Before a license can be issued to
an operator, the ordinance requires that the
applicant must have been a resident of the
City of Chattanooga or its environs for 30
days before the date of the application.
Durational residence requirements must be
measured by a strict equal protection test
and are unconstitutional unless the govern•
ing authority can demonstrate a compelling
governmental interest. Dunn v. Blum -
stein, 405 U.S. 330, 342, 92 S.Ct. 995, 1003,
31 L.Ed.2d 274 (1972). The governmental
interest must be all the more compelling
where first amendment rights are involved.
Troyer v. Town of Babylon, 483 F.Supp.
1135 (E.D.N.Y.1980).
[201 The City has not demonstrated a
compelling governmental interest which
would justify the 30-day residence require-
ment in Ordinance 3601. Mindful of the
admonition of Leviticus 24:22 (King James)
that, "Ye shall have one manner of law, as
well as for the stranger, as for one of your
own country," this Court finds that this
portion of the ordinance is a violation of
equal protection.
G. "Good Moral Character" Require-
ment
Section 4(bx15) requires that a licensed
applicant supply:
Written statements of at least five (5)
persons who are not related to the appli-
cant that the applicant is of good moral
character.
The ordinance further provides that a li-
cense may not be issued unless the appli-
cant (or persons associated with corpora-
tions or partnership license applicants) is of
"good moral character and reputation in
the community."
[21] These provisions would permit a
prior restraint on fast amendment rights
through the application of an amorphous
standard requiring the licensing authority
to exercise unguided subjective judgment
{<z I
_7
sit
;a
`I
is
are, therefore, valid
..
ement
nse can be issued to
inee requires that the
seen a resident of the
2r its environs for 30
of the application.
equire ments must be
equal protection test
1 unless the govern-
H nsL ate a compelling
st. Dunn v. Blum -
42, 92 S.Ct. 995, 1003,
The governmental
the more compelling
nt rights are involved.
Babylon, 483 F.Supp.
> not demonstrated a
ental interest which
day residence require -
3601. Mindful of the
-us 24:22 (King James)
one manner of law, as
ger, as for one of your
Court finds that this
ance is a violation of
Character" Require-
rquires that a licensed
is of at least rive (5)
iot related to the appli-
licant is of good moral
her provides that a Ii-
ssued unless the appli-
isociated with corpora -
license applicants) is of
cter and reputation in
isious would permit a
Cyst amendment rights
ation of an amorphous
the licensing authority
-d subjective judgment.
Y
,
BROADWAY BOOKS, INC. v. ROBERTS
Cite as 642 FAMP• 486 MDXT 1996)
Genusa v. City of Peoria 619 F.2d 1203, JUDGMENT
1217 (7th Cir.1980). The effect is to allow
the City to deny a license to whomever it
wishes on the basis of a criterion which is
too imprecise to be reviewed. Bayside En-
terprises, Inc. v. Carson, 450 F.Supp. 696,
707 (M.D.Fla.1978). "Good character" pro-
visions have been upheld in other contexts,
see Sehumre v. Board of Bar Examiners,
353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796
(1957), but not where they are used as a
basis for licensing or permitting first
amendment activities. See Shuttlesworth
v. City of Birmingham, 394 U.S. 147, 89
S.Ct. 935, 22 L.Ed.2d 162 (1969). It may be
true, as the City points out, that the ordi-
nance is directed mainly at the physical
arrangement of the booths. Nevertheless
the licensing provisions extend as well to
'ti h Ili b t, d h
495
After a full hearing on the issues in this
case and in accordance with the memoran-
dum opinion filed herewith, this Court en-
ters, pursuant to the provisions of 28
U.S.C. §§ 2201 and 2202, a judgment de-
claring that City of Chattanooga Ordinance
8601 is constitutional except for the follow-
ing provisions which deal with good moral
character and residency requirements of
the licensees: section 4(15); section 7(a)(1)
(i); section 7(axlxiii); section 7(a)(2)(i); sec-
tion 7(a)(2)(iii); and section 7(a)(3)1); and
section 7(03)(iii).
The defendants are hereby PERMA-
NENTLY ENJOINED from enforcing the
above specific provisions of the ordinance.
The plaintiffs' request for all other in-
junctive relief is hereby DENIED.
acGvi es sue as se mg oo s an sow-
ing videos. While, in the words of Justice SO ORDERED.
Stevens in Young, 427 U.S. at 72, 96 S.Ct. APPENDIX A
at 2453, "few of us would march our sons
and daughters off to war to preserve the ORDINANCE NO. 8601
citizen's right to see 'Specified Sexual Ac-
tivities' exhibited in the theaters of our AN ORDINANCE TO AMEND CHATTA-
choice," such material, not in this case hav- NOOGA CITY CODE, PART 11, REL,
ing been shown to be obscene, is therefore ATIVE TO ADULT - ORIENTED BS-
entitled to a modicum of first amendment TABLISHMENTS.
protection.
Conclusion
Chattanooga's Ordinance 8601 meets the
O'Brien test and is therefore constitutional
except for the residence and good moral
character requirements which are con-
tained in section 4(15); section 7(axlxi);
section 7(a)(1xii); section 7(a)(2)(i); section
7(a)(2)(iii); section 7(a)(3)(i); and 7(a)(3)(iii).2
These provisions of the ordinance are
found to be unconstitutional. Since the
ordinance contains a sevembility clause,
the remainder of the ordinance is found to
be constitutional. An appropriate order
will enter.
3. The ordinance is typographically misnum•
bered. The above cited sections are intended to
refer to those portions of the ordinance dealing
with licensing of operatom other sections of
the ordinance also partly contained in a "Sec.
tion 7" refer to permitting of entertainers and
also contain residency and good moral charac-
WHEREAS, it is a lawful purpose of the
Board of Commissioners to enact regula-
tory ordinances protecting and promoting
the general welfare, health, and safety of
the citizens of Chattanooga, Tennessee;
and
WHEREAS, the City is empowered to
enact such ordinances pursuant to its Char-
ter and the general laws of the State of
Tennessee; and
WHEREAS, the Board of Commissioners
deems it necessary to provide for licensing
and regulation of adult-oriented establish-
ments including, but not limited to, adult
ter requiremenm While the plaintiffs, not em-
ploying any entertainers, have no standing to
question the constitutionality of these require.
inents the Court would observe that the same
analysis would be applied to the permitting M
quirements for entertainers as to the licensing
requirements for operators
•
•
496
642 FEDERAL SUPPLEMENT
APPENDIX A— Continued
book stores, adult mini - motion picture es-
tablishments, adult entertainment studios,
and adult motion picture theaters, specifi-
cally including "peep" shows for the view-
ing of adult-oriented films or live entertain-
ment; and
WHEREAS, it has developed over a peri-
od of time that large numbers of persons,
primarily males, frequent the so-called
adult book stores which also usually con-
tain adult mini -motion picture shows which
can be activated upon depositing a certain
amount of money in a viewing machine;
and
WHEREAS, booths, cubicles, studios and
rooms are being used by customers of said
establishments for the purpose of engaging
in certain sexual acts, particularly between
males; and
WHEREAS, since 1981 and to October
10, 1985, there have been a number of
reported cases of Acquired Immune Defi-
ciency Syndrome (AIDS) (HTLV -III) in
Tennessee j8 in 1982, 4 in INS, 21 in 1984,
and 28 through October 10, 198M while the
United States as a whole reported 600 in
1982, 2,200 in 1983, 4,600 in 1984 and 6,400
during the first nine months of 1985; and
WHEREAS, as of October, 1985, there
were 66 cases of AIDS in Tennessee, 14,-
500 cases of AIDS in the 'United States
with 7,300 reported deaths and of the 14,-
500, 13,480 were males and 1,020 were
females; and'
WHEREAS, out of the 66 cases of AIDS
in Tennessee, there were 30 deaths, and of
the 56 there were 54 males and 2 females;
and
WHEREAS, as of November 22, 1985,
there were six individuals in Chattanooga
with positive tests for AIDS and 4 patients
with repeat positive testa for a total of 10;
and
WHEREAS, according to the Center for
Disease Control (CDC) in Atlanta, Georgia;
in a bulletin dated November 16, 1985, the
public was being advised that AIDS has
been found to be transmitted through sexu-
al oontsct, exposure to infected blood or
blood components, and that the virus had
been found in semen, saliva, tears, breast
milk and urine as well as blood; and
WHEREAS, upon inspection by members
of the Chattanooga Police Department, rep•
resentatives of the news media, and Build•
ing and Health Inspectors, blood, semen,
and urine have been found in the areas
where persons view adult-oriented films or
witness sexually - explicit live entertainment,;
and
WHEREAS, the CDC has issued reoom%
mendations for the sterilization and disin-
fecting housekeeping to prevent trans-
mission of AIDS which such adult-oriented
establishments should follow to make their
premises sanitary; and
WHEREAS, the CDC has advised that
persons testing positive for AIDS, or
known to have AIDS, should not donate
blood or other organs, avoid exposing oth-
ers through sexual contact, avoid exposing
others to saliva, avoid sharing hypodermic
needles, toothbrushes, razors, etc.; and
WHEREAS, the spread of AIDS is reach-
ing near epidemic proportions in the United
States, particularly in the larger metropoli-
tan areas, with proportionate increases in
the smaller metropolitan areas (e.g., there
were 4,903 cases in New York and 8,160 in
California as of October 7, 1985, according
to the CDC).
NOW, THEREFORE,
BE IT ORDAINED BY THE BOARD OF
COMMISSIONERS OF THE CITY OF
CHATTANOOGA, TENNESSEE:
SECTION 1. Findings and Purpose.
(a) The Board of Commissioners of the
City of Chattanooga, Tennessee, finds:
(1) That homogeneous and heterogene-
ous masturbastory acts and other sex-
ual acts, including oral sex acts, are
being done in adult-oriented establish-
ments in the City of Chattanooga
(2) That offering and providing such
space, areas, and rooms where such
activities may take place creates condi-
tions that generate prostitution and
other crimes.
(4)
(5)
(b)
prom
healt'
City
SE
Fo
word
the
clear
(a)
. tears, breast
11 as blood; and
ection by members
e Department, rep -
media, and Build.
^� blood, semen,
in the areas
It -oriented films or
live entertainment;
has issued recom-
- .r.. and disin` _.
to prevent trans
such adult -oriented
low to make their
c '
.d
C has advised that y
ive for AIDS, or
should not donate
avoid exposing ot1h .:
!ftwot avoid exposing, +
sharing hypodermic
razors, etc.; and
gad of AIDS is reach,
ortions in the United '
the larger metropoul
rtionate increases in
An areas (e.g., there
ew York and 3,150 m;'i
er 7, 1985, according f
EREFORE, <�9a
BY THE BOARD Oil
OF THE CITY Of
_NNESSEE: ,�'
dings and Pa VOM,,T
Commissioners of UK
Tennessee, fords:.: ^o
eous and heterogel*
wry acts and other semi
ing oral sex acts. A
dult -oriented establish'
.y of Chattanooga..,,
and providing such
nd rooms where `siietr
,ke place creates eon&
crate prostitution aDd
BROADWAY BOOKS, INC. v. ROBERTS
cue u 642 F_%pp. 686 (".Te 1986)
APPENDIX A--Continued
(3) That several days and nights of the
week such adult- oriented establish-
ments, particularly adult book stores
containing mini- motion picture facili-
ties, are overcrowded and contain more
persons than such structures can safe-
ly accommodate resulting in a definite
fire hazard since in the event of fire
such persons would not be able to safe-
ly leave all the cubicles, booths and
rooms of such establishments.
(4) That male prostitutes, particularly
teenage males, frequent said establish-
ments for the purpose of providing,
within the premises of such establish-
ments, sex- for -hire.
(5) That the continued unregulated oper-
ation of adult -oriented establishments
would be detrimental to the general
welfare, health, and safety of the citi-
zens of the City of Chattanooga.
(b) It is the purpose of this ordinance to
promote and secure the general welfare,
health, and safety of the citizens of the
City of Chattanooga.
SECTION 2. Definitions.
For the purpose of this ordinance, the
words and phrases used herein shall have
the following meanings, unless otherwise
clearly indicated by the context:
(a) "Adult -oriented establishment', shall
include, but not limited to, "adult book-
stores", "adult motion picture the-
aters", "adult mini -motion picture es-
tablishments", or "adult cabaret" and
further means any premises to which
the public patrons or members are in-
vited or admitted and which are so
physically arranged as to provide
booths, cubicles, rooms, compartments
or stalls separate from the common
areas of the premises for the purpose
of viewing adult -oriented motion pic-
tures, or wherein an entertainer pro-
vides adult entertainment to a member
of the public, a patron or a member,
when such adult entertainment is held,
conducted, operated or maintained for
a profit, direct or indirect An "adult -
oriented establishment" further in-
cludes, without being limited to, any
497
"adult entertainment studio" or any
premises that is physically arranged
and used as such, whether advertised
or represented as an adult entertain-
ment studio, rap studio, exotic dance
studio, encounter studio, sensitivity
studio, modeling studio or any other
term of like import.
(b) "Adult bookstore" means an estab-
lishment having as a substantial or
significant portion of its stock and
trade in books, films, video cassettes,
or magazines and other periodicals
which are distinguished or character-
ized by their emphasis on matter de-
picting, describing or relating to "spec-
ified sexual activities" or "specified an-
atomical areas" as defined below, and
in conjunction therewith have facilities
for the presentation of adult entertain-
ment, as defined below, and including
adult -oriented films, movies, or live en-
tertainment, for observation by pa-
trons therein.
(c) "Adult motion picture theater" means
an enclosed building with a capacity of
fifty (50) or more persons regularly
used for presenting material having as
a dominant theme or presenting mate-
rial distinguished or characterized by
an emphasis on matter depicting, de-
a 'bing or relating to "specified sexu.
cn
al activities" or "specified anatomical
areas," as defined below, for observa-
tion by patrons therein.
(d) "Adult mini - motion picture theater"
means an enclosed building with a ca-
pacity of less than fifty (50) persons
regularly used for presenting material
distinguished or characterized by an
emphasis on matter depicting, describ-
ing or relating to "specified sexual ac-
tivities" or "speed anatomical ar-
eas," as defined below, for observation
by patrons therein.
(e) "Adult cabaret" means a cabaret
which features topless dancers, "
dancers, exotic dancers, strippers, male
or female impersonators, or similar en-
tertainers.
•
498
642 FEDERAL SUPPLEMENT
APPENDIX A— Continued
(f) "Board" means the Board of Commis-
sioners of the City of Chattanooga,
Tennessee.
(g) "Employee" means any and all per-
sons, including independent contrac-
tors, who work in or at or render any
services directly related to the opera-
tion of an adult-oriented establishment
(h) "Entertainer' means any person who
provides entertainment within an
adult-oriented establishment as defined
in this section, whether or not a fee is
charged or accepted for entertainment
and whether or not entertainment is
provided as an employee or an indepen-
dent contractor.
(7 "Adult Entertainment" means any ex-
hibition of any adult-oriented motion
pictures, live performance, display or
dance of any type, which has as a
significant or substantial portion of
such performance any actual or sim-
ulated performance of specified sexual
activities or exhibition and viewing of
specified anatomical areas, removal of
articles of clothing or appearing un-
clothed, pantomine, modeling, or any
other personal service offered custom-
ers.
0) "Operators" means any person, part-
nership, or corporation operating, con-
ducting or maintaining an adult-orient-
ed establishment.
(k) "Specified sexual activities" means:
(I) Human genitals in a state of sexual
stimulation or arousal;
(2) Acts of human masturbation, sexu-
al intercourse or sodomy;
(3) Fondling or erotic touching of hu-
man genitals, pubic region, buttock or
female breasts.
p) "Specified anatomical areas" means:
(1) Less than completely and opaquely
covered:
(i) Human genitals, pubic region;
(H) Buttocks;
(iii) Female breasts below a point im-
mediately above the top of the areola;
and
(2) Human male genitals in a discern-
ably turgid state, even if completely
opaquely covered.
SECTION .f. License Required
(a) Except as provided in subsection (e)
below, from and after the effective date of
this ordinance, no adult-oriented establish-
ment shall be operated or maintained in the
City of Chattanooga without first obtaining
a license to operate issued by the City of
Chattanooga.
(b) A license may be issued only for one
(1) adult-oriented establishment located at a
fixed and certain place. Any person, part-
nership, or corporation which desires to
operate more than one adult-oriented estab-
lishment must have a license for each.
(c) No license or interest in a license may
be transferred to any person, partnership
or corporation.
(d) It shall be unlawful for any entertain-
er, employee or operator to knowingly
work in or about, or to knowingly perform
any service directly related to the operation
of any unlicensed adult-oriented establish-
ment.
(e) All existing adult-oriented establish-
ments at the time of the passage of this
ordinance must submit an application for a
license within one hundred twenty (120)
days of the passage of this ordinance on
third and final reading. If a license is not
issued within said one hundred twenty
(120) day period, then such existing adult -
oriented establishment shall cease opera-
tions.
SECTION 4• Application for License.
(a) Any person, partnership, or corpora-
tion desiring to secure a license shall make
application to the City Treasurer. The ap-
plication shall be filed in triplicate with and
dated by the City Treasurer. A copy of the
application shall be distributed promptly by
the City Treasurer to the Chattanooga Po-
lice Department and to the app6canL
(b) The application for a license shall be
upon a form provided by the City Treasur-
er. An applicant for a license including
any partner or limited partner of the part-
als III a discern -
en if completely
Required
in subsection (e)
effective date of
triented establish -
maintained in the
first obtaining
by the City of
- ==__'. only for one
:. t located at a
Any person, part-
which desires to
'..'• cnien.ted estab-
license for each.
;::;t in a license may
-- partnership
.1 for any entertain -
ator to knowingly
knowingly perform
tied W the operation
,t-oriented establish-
it-oriented establish -
the passage of this
an application for a
Indred twenty (120)
of this ordinance on
;. If a license is not
me hundred twenty
, such existing adult -
It shall cease opera-
itication for License.
rtnership, or corpora•
e a license shall make
y Treasurer. The ap-
i in triplicate with and
asurer. A copy of the
istributed promptly by
) the Chattanooga Po-
to the applicant.
for a license shall be
I by the City Treasur-
er a license including
A partner of the part-
BROADWAY BOOKS, INC. v. ROBERTS 499
cite u 6r3 F.Supp. 4" ".Te 1996)
APPENDIX A--Continued ciaries of land trust or lessees sub -
nership applicant, and any officer or di-
rector of the corporate applicant and any
stockholder holding more than five (5) per-
cent of the stock of a corporate applicant,
or any other person who is interested dr
rectly in the ownership or operation of the
business, shall furnish the following infor-
mation under oath:
(1) Name and address, including all alias-
letting w applicant.
(11) If the premises are leased or being
purchased under contract, a copy of
such lease or contract shall accom-
pany the application.
(12) The length of time the applicant has
been a resident of the City of Chat-
tanooga, or its environs, immediate-
ly preceding the date of the applies.
es. tion.
(2) Written proof that the individual is at
least eighteen (18) years of age.
(3) All residential addresses of the appli-
cant for the past three (3) years.
(4) The applicant's height, weight, color
of eyes and hair.
(5) The business, occupation or employ-
ment of the applicant for five (5)
years immediately preceding the date
of the application.
(6) Whether the applicant previously op-
erated in this or any other county,
city or state under an adult-oriented
establishment license or similar busi-
ness license, whether the applicant
has ever had such a license revoked
or suspended, the reason therefor,
and the business entity or trade name
under which the applicant operated
that was subject to the suspension or
revocation.
(T) All criminal statutes, whether federal
or state, or city ordinance violation
convictions, forfeiture of bond and
pleadings of nolo contendere on all
charges, except minor traffic viola-
tions.
(8) Fingerprints and two (2) portrait pho-
tographs at least two (2) inches by
two (2) inches of the applicant.
(9) The address of the adult-oriented es-
tablishment to be operated by the ap-
plicant.
(10) The names and addresses of all per-
sons, partnerships, or corporations
holding any beneficial interest in the
real estate upon which such adult-or-
iented establishment is to be operat-
ed, including but not limited to, con-
tract purchasers or sellers, benefl-
(13) If the applicant is a corporation, the
application shall specify the name of
the corporation, the date and state
of incorporation, the name and ad.
dress of the registered agent and
the name and address of all principal
shareholders, officers and directors
of the corporation.
(14) A statement by the applicant that he
or she is familiar with the provisions
of this ordinance and is in compli-
ance with them.
(15) Written statements of at least five
(5) persons who are not related W
the applicant that the applicant is of
good moral character.
(16) A8 inventory, equipment, or aup-
plies which are to be leased, pur,
chased, held in consignment or in
any other fashion kept on the prem-
isea or any part or portion thereof
for storage, display, any other use
therein, or in connection with the
operation of said establishment, or
for resale, shall be identified in writ-
ing accompanying the application
specifically designating the distribu-
tor business name, address, phone
number, and representative's name.
(c) Within ten (10) days of receiving the
results of the investigation conducted by
the Chattanooga Police Department, the
City Treasurer shall notify the applicant
that his application is granted, denied or
held for further investigation. Such addi-
tional investigation shall not exceed an ad-
ditiona) thirty (30) days unless otherwise
agreed to by the applicant. Upon the con-
clusion of such additional investigation, the
City Treasurer shall advise the applicant in
•
APPENDIX A— Continued
writing whether the application is granted
or denied.
(d) Whenever an application is denied or
held for further investigation, the City
Treasurer shall advise the applicant in writ-
ing of the reasons for such action. If the
applicant requests a hearing within ten (10)
days of receipt of notification of denial, a
public hearing shall be held thereafter be-
fore the Board of Commissioners at which
time the applicant may present evidence
bearing upon the question.
(e) Failure or refusal of the applicant to
give any information relevant to the inves-
tigation of the application, or his or her
refusal or failure to appear at any reason.
able time and place for examination under
oath regarding said application or his or
her refusal to submit to or cooperate with
any investigation required by this ordi-
nance, shall constitute an admission by the
applicant that he or she is ineligible for
such license and shall be grounds for denial
thereof by the City Treasurer.
SECTION 7. Standards for Issuance
of License.
(a) To receive a license to operate an
adult-oriented establishment, an applicant
must meet the following standards:
(1) If the applicant is an individual:
(i) The applicant shall be at least eigh-
teen (18) years of age and a person of
good moral character and reputation in
the community in which he or she re-
sides.
(ii) The applicant shall not have been
convicted of or pleaded nolo conten-
dere to a felony or any crime involving
moral turpitude, prostitution, obscenity
or other crime of a sexual nature in
any jurisdiction within five (5) years
immediately preceding the date of the
application.
(iu) The applicant shall have been a
resident of the City of Chattanooga, or
its environs, continuously for thirty
(30) days immediately preceding the
date of the application.
(iv) The applicant shall not have been
found to have previously violated this
ordinance within rive (5) years immedi.
ately preceding the date of the applica.
tion.
(2) If the applicant is a corporation:
(i) All officers, directors and stockhold.
ers required to be named under Section
4(b) shall be at least eighteen (18)
years of age, and be persons of good
moral character and reputation in the
community(ies) in which they reside.
(ii) No officer, director or stockholder
required to be named under Section
4(b) shall have been convicted of or
pleaded nolo contendere to a felony or
any crime involving moral turpitude,
prostitution, obscenity or other crime
of a sexual nature in any jurisdiction
within five (5) years immediately pre-
ceding the date of the application;
(ii) At least one (1) officer or director
shall have been a resident of the City
of Chattanooga, or its environs, contin-
uously for thirty (30) days immediately
preceding the date of the application;
(iv) No officer, director, or stockholder
required to be named under Section
4(b) shall have been found to have pre-
viously violated this ordinance within
five (5) years immediately preceding
the date of the application.
(3) If the applicant is a partnership, joint
venture, or any other type of organiza.
tion where two (2) or more persons
have a financial interest
(i) All persons having a financial inter-
est in the partnership, joint venture or
other type of organization shall be at
least eighteen (18) years of age, and
persons of good moral character and
reputation in the community(ies) in
which they reside.
(ii) No persons having a financial inter-
est in the partnership, joint venture or
other type of organization shall have
been convicted of or pleaded noto con -
tendere to a felony or any crime in-
volving moral turpitude, prostitution,
obscenity or other crime of a sexual
nature in any jurisdiction within five
(5) years immediately preceding the
date of the application;
late of the applica-
a corporation:
tors and stockhold-
,med under Section
-ast eighteen (18)
e persons of good
i reputation in the
vhich they reside.
tor or stockholder
led under Section
n convicted of or
dere to a felony or
moral turpitude,
or other crime
in any jurisdiction
immediately pre -
he application;
officer or director
esident of the City
is environs, contin-
1 days immediately
of the application;
tor, or stockholder
ied under Section
found to have pre-
; ordinance within
ediately preceding
iaton.
partnership, joint
r type of organiza-
or more persons
a financial inter -
ip, joint venture or
shall be at
years of age, and
=1 character and
community(ies) in
tg a financial inter -
ip, joint venture or
shall have
pleaded nolo con -
or any crime fin-
itude, prostitution,
crime of a sexual
diction within five
ely preceding the
ion;
BROADWAY BOOKS, INC. v. ROBERTS
Cite u 642 F.Supp. 686 (ED.Tem 1986)
APPENDIX A— Continued
(iii) At least one (1) person having a
financial interest in the partnership,
joint venture or other type of organiza-
tion shall have been a resident of the
City of Chattanooga, or its environs,
continuously for thirty (30) days imme-
diately preceding the date of the appli-
cation;
(iv) No person having a financial inter-
est in the partnership, joint venture or
other type of organization shall have
been found to have violated any provi-
sion of this ordinance within five (5)
years immediately preceding the date
of the application.
(b) No license shall be issued unless the
Chattanooga Police Department has inves-
tigated the applicant's qualifications to be
licensed. The results of that investigation
shall be filed in writing with the City Trea-
surer no later than twenty (20) days after
the date of the application.
SECTIONS. Permit Required.
In addition to the license requirements
previously set forth for owners and opera-
tors of "adult-oriented establishments ", no
person shall be an entertainer in an adult -
oriented establishment without first obtain-
ing a valid permit issued by the City Trea-
surer.
SECTION 7. Application jor Permit.
(a) Any person desiring to secure a per-
mit shall make application to the City Trea-
surer. The application shall be filed in
triplicate with and dated by the City Trea-
surer. A copy of the application shall be
distributed promptly by the City Treasurer
to the Chattanooga Police Department and
to the applicant.
(b) The application for a permit shall be
upon a form provided by the City Treasur-
er. An applicant for a permit shall furnish
the following information under oath:
(1) Name and address, including all alias-
es.
(2) Written proof that the individual is at
least eighteen (18) years of age.
(3) All residential addresses of the appli-
cant for the past three (3) years.
501
(4) The applicant's height, weight, color
of eyes, and hair.
(5) The business, occupation or employ-
ment of the applicant for five (5)
years immediately preceding the date
of the application.
(6) Whether the applicant, while previ-
ously operating in this or any other
city or state under an adult-oriented
establishment permit or similar busi-
ness for whom applicant was em-
ployed or associated at the time, has
ever had such a permit revoked or
suspended, the reason therefor, and
the business entity or trade name for
whom applicant was employed or as-
sociated at the time of such suspen-
sion or revocation.
(7) All criminal statutes, whether feder-
al, state or city ordinance violation,
convictions, forfeiture of bond and
pleadings of polo contendere on all
charges, except minor traffic viola-
tions.
(8) Fingerprints and two (2) portrait pho-
tographs at least two (2) inches by
two (2) inches of the applicant.
(9) The length of time the applicant has
been a resident of the City of Chatta-
nooga, or its environs, immediately
preceding the date of the application.
(10) A statement by the applicant that he
or she is familiar with the provisions
of this ordinance and is in compli-
ance with them.
(11) Written statements of at least five
(5) persons who are not related to
the applicant that the applicant is of
good moral character.
(c) Within ten (10) days of receiving the
results of the investigation conducted by
the Chattanooga Police Department, the
City Treasurer shall notify the applicant
that his application is granted, denied, or
held for further investigation. Such addi-
tions( investigation shall not exceed an ad-
ditional thirty (30) days unless otherwise
agreed to by the applicant. Upon the con-
clusion of such additional investigations,
the City Treasurer shall advise the appli.
502
642 FEDERAL SUPPLEMENT
APPENDIX A— Continued
cant in writing whether the application is
granted or denied.
(d) Whenever an application is denied or
held for further investigation, the City
Treasurer shall advise the applicant in writ.
ing of the reasons for such action. If the
applicant requests a hearing within ten (10)
days of receipt of notification of denial, a
public hearing shall be held thereafter be-
fore the Board of Commissioners at which
time the applicant may present evidence
bearing upon the question.
(e) Failure or refusal of the applicant to
give any information relevant to the inves-
tigation of the application, or his or her
refusal or failure to appear at any reason-
able time and place for examination under
oath regarding said application or his or
her refusal to submit to or cooperate with
any investigation required by this Ordi-
nance, shall constitute an admission by the
applicant that he or she is ineligible for
such permit and shall be grounds for denial
thereof by the Board.
SECTION 8. Standards for Issuance
of Permit
(a) To receive a permit as an entertainer,
an applicant must meet the following stan-
dards:
(1) The applicant shall be at least 18
years of age.
(2) The applicant shall have been a resi-
dent of the City of Chattanooga con-
tinuously for at least thirty (30) days
immediately preceding the date of ap.
plication.
(3) The applicant shall not have been con-
victed of or pleaded no contest to a
felony or any crime involving moral
turpitude or prostitution, obscenity or
other crime of a sexual nature in any
jurisdiction within rive (5) years im-
mediately preceding the date of the
application.
(4) The applicant shall be a person of
good moral character and reputation
in the community in which he or she
resides.
(5) The applicant shall not have been
found to violate any provision of this
ordinance within rive (5) years imme-
diately preceding the date of the ap.
plication.
(b) No permit shall be issued until the
Chattanooga Police Department has inves-
tigated the applicant's qualifications to re-
ceive a permit. The results of that investi-
gation shall be filed in writing with the
City Treasurer not later than twenty (20)
days after the date of the application.
SECTION S. Fees.
(a) A license fee of Five Hundred
($500.00) Dollars shall be submitted with
the application for a license. If the applica.
tion is denied, one -half (1 /2) of the fee shall
be returned
(b) A permit fee of One Hundred
($100.00) Dollars shall be submitted with
the application for a permit. If the applica-
tion is denied, one -half (1 /2) of the fee shall
be returned.
SECTION 10. Display of License or
Permit
(a) The license shall be displayed in a
conspicuous public place in the adult-orient-
ed establishment
(b) The permit shall be carried by an
entertainer upon his or her person and
shall be displayed upon request of a cus-
tomer, any member of the Chattanooga
Police Department, or any person designat-
ed by the Board of Commissioners.
SECTION 11. Renewal of License or
Permit
(a) Every license issued pursuant to this
Ordinance will terminate at the expiration
of one (1) year from the date of issuance,
unless sooner revoked, and must be re-
newed before operation is allowed in the
following year. Any operator desiring to
renew a license shall make application to
the City Treasurer. The application for
renewal must be riled not later than sixty
(60) days before the license expires. The
application for renewal shall be filed in
triplicate with and dated by the City Trea-
surer. A copy of the application for renew-
al shall be distributed promptly by the City
Treasurer to the Chattanooga Police De-
partment and to the operator. The appGca-
five (5) years imme.
the date of the ap.
11 be issued until the
)epartment has inves.
'a qualifications to re.
results of that investi-
in writing with the
ater than twenty MD)
of the application.
of Five Hundred
LII be submitted with
icense. If the applica-
If ('/2) of the fee shall
of One Hundred
.11 be submitted with
permit. If the applica-
If ('h) of the fee shall
;play of License or
,II he displayed in a
ice in the adult-orient.
kll be carried by an
or her person and
on request of a cua-
of the Chattanooga
any person designat-
)mmisaioners.
telval of License or
;ued pursuant to this
ate at the expiration
the date of issuance,
d, and must be re-
on is allowed in the
operator desiring to
make application to
The application for
not later than sixty
license expires The
-al shall be filed in
ed by the City Tres,
Ipplication for renew-
promptly by the City
,ttanooga Police De-
rerator. The applica-
i'
BROADWAY BOOKS, INC. v. ROBERTS
Cite u 642 F.supp. 496 (ED.Teun. 1966)
APPENDIX A— Continued
tion for renewal shall be upon a form pro-
vided by the City Treasurer and shall con-
tain such information and data, given un-
der oath or affirmation, as may be required
by the Board of Commissioners.
(b) A license renewal fee of Mve Hun.
dred ($500.00) Dollars shall be submitted
with the application for renewal. In addi-
tion to the renewal fee, a late penalty of
One Hundred ($100.00) Dollars shall be as-
sessed against the applicant who files for a
renewal less than sixty (60) days before the
license expires. If the application is de-
nied, one -half ('h) of the total fees collected
shall be returned.
(c) If the Chattanooga Police Depart,
ment is aware of any information bearing
on the operator's qualifications, that infor-
mation shall be filed in writing with the
City Treasurer.
(d) Every permit issued pursuant to this
Ordinance will terminate at the expiration
of one (1) year from the date of issuance
unless sooner revoked, and must be re-
newed before an entertainer is allowed to
Provide entertainment in an adult-oriented
establishment in the following calendar
year. Any entertainer desiring to renew a
permit shall make application to the City
Treasurer. The application for renewal
must be filed not later than sixty (60) days
before the permit expires. The application
for renewal shall be filed in triplicate with
and dated by the City Treasurer. A copy
of the application for renewal shall be dis-
tributed promptly by the City Treasurer to
the Chattanooga Police Department and to
the entertainer. The application for renew-
al shall be upon a form provided by the
City Treasurer and shall contain such infor.
mation and data, given under oath or affir-
mation, as may be required by the City
Treasurer.
(e) A permit renewal fee of One Hundred
($100.00) Dollars shall be submitted with
the application for renewal. In addition to
said renewal fee, a late penalty of My
($50.00) Dollars shall be assessed against
the applicant who files for renewal less
than sixty (60) days before the license ex-
503
pires. If the application is denied, one -half
0/2) of the fee shall be returned.
(f) If the Chattanooga Police Depart-
ment is aware of any information bearing
on the entertainer's qualifications, that in-
formation shall be filed in writing with the
City Treasurer.
SECTIONI2. RevocationofLicenseor
Permit.
(a) The Board of Commissioners shall re-
voke a license or permit for any of the
following reasons:
(1) Discovery that false or misleading in-
formation or data was given on any
application or material facts were
omitted from any application.
(2) The operator or entertainer, or any
employee of the operator, violates
any provision of this Ordinance or
any rule or regulation adopted by the
Board of Commissioners pursuant to
this Ordinance; provided, however,
that in the case of a first offense by
an operator where the conduct was
solely that of an employee, the penal-
ty shall not exceed a suspension of
thirty (30) days if the Board shall find
that the operator had no actual or
constructive knowledge of such viola-
tion and could not by the exercise of
due diligence have had such actual or
constructive knowledge.
(3) The operator or entertainer becomes
ineligible to obtain a license or per-
mit.
(4) Any coat or fee required to be paid by
this Ordinance is not paid.
(5) An operator employs an entertainer
who does not have a permit or pro-
vides space on the premises, whether
by lease or otherwise, to an indepen-
dent contractor who performs as an
entertainer without a permit.
(6) Any intoxicating liquor or cereal malt
beverage is served or consumed on
the premises of the adult-oriented es-
tablishment.
(b) The Board, before revoking or sus-
pending any license or permit, shall give
the operator or entertainer at least ten (10)
•
•
504
642 FEDERAL SUPPLEMENT
APPENDIX A— Condnued
days' written notice of the charges against
him or her and the opportunity for a public
hearing before the Board at which time the
operator or entertainer may present evi-
dence bearing upon the question. In such
cases, the charges shall be specific and in
writing.
(c) The transfer of a license or any inter-
est in a license shall automatically and im-
mediately revoke the license. The transfer
of any interest in a non - individual opera-
tor's license shall automatically and imme-
diately revoke the license held by the oper-
ator.
(d) Any operator or entertainer whose
license or permit is revoked shall not be
eligible to receive a license or permit for
five (u) years from the date of revocation.
No location or premises for which a license
has been issued shall be used as an adult -
oriented establishment for two (2) years
from the date of revocation of the license.
SECTION 18. Hours of Operation
(a) No adult-oriented establishment shall
be open between the hours of 3:00 a.m. and
8:00 a.m. on weekdays or between the
hours of 3:00 a.m. and 12:00 noon on Sun-
days.
(b) All adult-oriented establishments
shall be open to inspection at all reasonable
times by the Chattanooga Police Depart-
ment or such other persons as the Board of
Commissioners may designate.
SECTION 14. Responsibilities of the
Operator.
(a) The operator shall maintain a register
of all employees, showing the name, and
aliases used by the employee, home ad-
dress, age, birthdate, sex, height, weight,
color of hair and eyes, phone numbers,
Social Security Number, date of employ-
ment and termination, and duties of each
employee and such other information as
may be required by the Board of Commis-
sioners. The above information on each
employee shall be maintained in the reg-
ister on the premises for a period of three
(3) years following termination.
(b) The operator shall make the register
of employees available immediately for in-
spection by police upon demand of a mem-
ber of the Chattanooga Police Department
at all reasonable times.
(c) Every act or omission by an employee
constituting a violation of the provisions of
this Ordinance shall be deemed the act or
omission of the operator if such act or
omission occurs either with the authoriza-
tion, knowledge, or approval of the opera-
tor, or as a result of the operators negli.
gent failure to supervise the employee's
conduct, and the operator shall be punisha-
ble for such act or omission in the same
manner as if the operator committed the
act or caused the omission.
(d) An operator shall be responsible for
the conduct of all employees while on the
licensed premises and any act or omission
of any employee constituting a violation of
the provisions of this Ordinance shall be
deemed the act or omission of the operator
for purposes of determining whether the
operator's license shall be revoked, sus-,
pended or renewed.
0
(e) There shall be posted and conspii
uously displayed in the common areas of
each adult-oriented establishment a list of
any and all entertainment provided on the'
premises. Such list shall further indicate
the specific fee or charge in dollar amounts'
for each entertainment listed. Viewing
adult-oriented motion pictures shall be con='.
sidered as entertainment The operator
shall make the list available immediately
upon demand of the Chattanooga Police
Department at all reasonable times.
(f) No employee of an adult-oriented es-
tablishment shall allow any minor to loiter
around or to frequent an adult-oriented es-
tablishment or to allow any minor to view
adult entertainment as defined herein.
(g) Every adult-oriented establishment
shall be physically arranged in such a man- .
ner that the entire interior portion of the
booths, cubicles, rooms or stalls, wherein
adult entertainment is provided, shall bey
visible from the common area of the prem=
ises. Visibility shall not be blocked or ob-
scured by doors, curtains, partitions,
drapes, or any other obstruction whatsoev-
1(1'TTC:'O1 ..:2B (311URENIS LEWL Fa.HMTIQN - ^— - a r = �"""� =tr—
Attachmp-nt 1 '1993
.,! 7ORJNEY
,j ){: kE6)POPS BEACH
r, RIM Q= B. &0M10V^ttm1, I.D., hereby cartiiyl pursuant to
the penalties of is PA-C-9- 9 4904 relating to Uneworn
lalalficaticn to Authotities, that the !allowing is true and .
correct to the best of my knwiedge, information, and beliefs
I. I am a medicai dotter, licensed to practice medicine by
the Coon Avealth of Pennsylvania.
Z, I have a Bachelor of Arts degree in Mathematics from
Havertord College. I earned that degree in 1912.
3. I reaaived my noctor of Madialne degree from the
Univeraity of Pennsylvania in L976, and I then undertook a
residency at the HospitaL of the University at Pennsylvania from
1916 until 1900. The residency was in the field of pathology.
4, I am Board- certLfled by the Aafsrtcan Board of Pathology,
as qualified to practice in anatomic and clinical pathology. I
seceived my certiflcaCLod in LOBO.
S. Me 190a until 1902, I was an the faculty of the
UniVetsity of Pennsylvania am an assistant Professor of Pathology
and Medical olrectoc of Heeatology Laboratory.
6. from 1992 until the present, 2 have been an the faculty
of Fenn State Univa"Lty College of Xedioino at Hershey.
Currently, I as an Axacciate Professor of Pathology at the Penn
State University College of kediciaa. I oaf also the Director of
Clinical raboratux7, am Chief of Cllaleal pathology, and the
Medical Director or the Blood Da..,..
OilLDWTS LECIFL FDJZPTICN 30.
1. Through the current positions I hold, I as Tespansible
for viral hepatitis and human immunodeficiency virus testing for
the Hershey Nedioal Center. Human iawunodefieiency virus (HIV) is
. another name for the more cossoaly -known AIuB virus. Because of
my responsibilities in these areas, I have knowledge as to the
made* of transmission and the risk of traflamission of viral
hepatitis and HIV.
A. The RIV, or AIDS visa, has a potential life span of two -
to -three :tours outside the human body. Therefore, if an
individual ware to come into contact with semen ejaculated onto
aoso surface from an individual who was Carrying the HIV
infection, within two -to -terse hour$ of the semen being
diaoharged, and in a manner that would allow the entry of the xiV
virus into the blood stream of that iadividua1, such as through an
open cut or sore, the individual is at risk of being infected by
HIV.
9. The danger of dentractLnq RZV, or the AIDS virus, is that
Currently there is no known cure for the virus, and, as of this
time, it is a uhifomly fatal disease.
LO. The hepatitis -m virus has s potential life -open of two -
16g -throe hours outside of the human body. An Individual coming
into contact with semen carrying the hepatitia-B virus is at sink
of contracting the hepatLUS -s virus, which, if left untreated,
can be a sszLous and potentially life - threatening disease which
also can be tvanssitted to others. Repatitia -B carriers also
present a special danger to others residing in the household with
an infected individual.
2
� 1
__ __ __ _ ... �..� � «�. ..... .... .a �.�luu�l \Y LIII IIi1L1.••.SW SY
:0 /31 14:29 GitIDRENIs —G F1l.tdATIOV 004
11. The likelihood of trsnssliasion of Aha AIDS virus and /or
hepatitis -B virus is much greeter if there is actual sexual
Contact between individuala. The potential transmisslon rate of
she AIDS virus say be as high ea 40 -500 of all of those persons
having sexual contact with an infected person.
12. Because of the high rate of transmiselon of the above
described viruses among those engaging in unprotected sexual
activltiese I am of the opinion that a situation in which
individuals engage In anonymous unprotected sasuai activity
presents a significant health risk to the community. That risk is
In the form at the spread at the AIDS virus and /or the hepatitis -0
virus, sines the spread of these diseases can go on virtually
unchecked in such a situation, as trsckiag of potentially infected
parties is not possible given the anonymity of the sexual
encountor.
Dates � f 'r +l I q1
XICJLL19L a. IOV , N.D.
3
T appealed.
e Anderson,
strict Court
awarding
would be
730
sing action
,over with -
tes, did not
attorney
suit in bad
cation and
lerent pow-
737.5
employer
,rainst em-
21d federal
)priate de-
based on
s are not
43 ,
a frivolous
ppeal but
nd where
ent power
r was not
,rney fees
imissal of
A federal
. Rule 88,
mch, Cal,
nose, Los
lee.
District
'alifornia
ON, and
ELLWEST STEREO THEATRES, INC. v. WENNER ' Li2431 G7`, j
OR as 681 F2d 1243 (1882)
BLAINE ANDERSON, Circuit Judge: [3] Amerece seeks a further award „oj,;; ,;,...
Substantially for the reasons thoroughly
set forth by Judge Kelleher in his Memo-
randum Decision and Order dated July 30,
1981 (ER 41 -54), we affirm the dismissal of
plaintiff's complaint.
The district court dismissed the action
(and three others not on appeal) against
Amerace, plaintiffs employer, seeking to
recover withheld federal and state income
taxes. In doing so, it assessed attorney's
fees of $2,000.00 against Callow for filing
the suit in bad faith and for purposes of
vexation and harassment. The district
court further found Callow to be the "ring-
leader” of the group of taxpayer dissidents.
[1] The district court did not abuse its
discretion in awarding attorney's fees. An
attorney's fee award was appropriate under
the facts and the "inherent powers" of the
court. Alyeska Pipeline Service v. Wilder-
ness Society, 421 U.S. 740, 259, 95 S.Ct.
1612, 1622, 44 L.Ed.2d 141 (1975); Equal
Employment Opportunity Commission v.
Pierce Packing Co., 669 F.2d 605, 609 (9th
Cir. 1982).
[2] The claim that federal reserve notes
are not valid money, presented under a
variety of theories, has been rejected by
every court considering the claim. See,
e.g., Stonecipher v. Bray, 653 F.2d 398 (9th
Cir. 1981), cert. denied, — U.S. —, 102
S.Ct. 1006, 71 L.Ed.2d 297 (1982); United
States v. Carlson, 617 F.2d 518 (9th Cir.
1980), oert denied, 449 U.S. 1010, 101 S.Ct.
564, 66 LEd.2d 468 (1981); United States v.
Smith, 484 F.2d 8 (10th Cir. 1973), cert
denied, 415 U.S. 978, 94 S.Ct. 1566, 39
L.Ed2A 874 (1974); &gle v. Kenai Penin-
sula Burough, 489 F.Supp. 138 (D.Alaska,
1980); Rap v. Peper, 80-1 U.S. Tax Cases
§ 9204 (D.Alaska, 1979); Chandler v. Perini
Power Constructors, Ina, 520 F.Supp. 1152
(D.N.H.1981). The award of attorney's fees
was an appropriate deterrent to future friv-
olous suits.
The express findings that Callow acted in
bad faith and that he was the ringleader
are supported in the record and are not
clearly erroneous. Fed.RCiv.P. 52(a).
attorneys fees and costs on this appeal,0 ;3 T' e;
Fed.R.App.P. 38; 28 U.S.C. § 1912. Callow
does not raise the frivolous federal reserve
note issue on this appeal. He challenges
only the fee award. Awarding fees under
the court's inherent power is somewhat un-
usual and we are not persuaded that a
finding of frivolity is justified. According-
ly, no fees will be allowed on this appeal.
Amerace will recover only single costs on
this appeal.
The judgment of the district court is
AFFIRMED.
w
e S KETRUMBER nRfEM
T
ELLWEST STEREO THEATRES, INC,
a corporation, Plaintiff - Appellant
V.
Paul WENNER, Individually and as the
treasurer of the City of Phoenix, Law-
rence Wetzel, individually and as the
chief of police of the City of Phoenix,
Defendants-Appellees.
No. 805732.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 8, 1981
Decided July 23, 1981
Theater operating movie arcade in
which members of public paid to view sexu-
ally explicit films in booths brought action
challenging constitutionality of city ordi-
nance requiring that viewing areas of
booths in which coin - operated viewing de-
vices are located be visible from continuous
main aisle. The United States District
Court for the District of Arizona, C. A.
Muecke, Chief Judge, held that ordinance
was reasonable regulation of operation of
theaters not based upon content of films
r
1244 681 FEDERAL REPORTER, 2d SERIES
shown. Appeal was taken. The Court of
Appeals, Schroeder, Circuit Judge, held that
city ordinance was not violative on its face
of free speech or privacy clauses of Consti-
tution.
Affirmed.
1. Constitutional Law 0-90.1(1)
Obscene materials are not protected
speech within meaning of First Amendment
as applied to states through Fourteenth
Amendment. U.S.C.A.Const.Amends. 1, 14.
2. Constitutional Law *=90(1)
Regulations of time, place, or manner
of protected speech will be upheld if neces-
sary to further significant governmental in-
terests, and requiring such a showing in-
sures that expression protected by First
Amendment will not be unduly inhibited by
regulation of its form. U.S.C.A.Const.
Amend. 1.
3. Constitutional Law 0=90.1(6)
City ordinance requiring that viewing
areas of booths in which coin operated
viewing devices are located be visible from
a continuous aisle is not unconstitutional on
its face as violative of free speech provision
of Constitution in that ordinance is aimed
at curtailing public sexual criminal offenses
and'as such clearly seeks to further signifi-
cant state interests. U.S.C.A.Const.
Amends. 1, 14.
4. Constitutional Law 0=90.1(6)
City ordinance requiring that viewing
areas of booth in which coin-operated view.
ing devices are located be visible from con-
tinuous main aisle is reasonable regulation
of manner in which films may be viewed as
well as shown. U.S.C.A.Const.Amends. 1,
14.
5. Constitutional Law 0-82(10)
The "right" to unobserved masturba.
tion in a public theater is not "fundamen-
tal" or "implicit in the concept of ordered
liberty." U.S.C.A.Const.Amends. 1, 14.
6. Constitutional Law ea82(7)
City ordinance requiring that viewing
areas of booths in which coin-operated
viewing devices are located be visible from
continuous main aisle is not unconstitution-
al on its face as violative of privacy provi-
sions of Constitution. U.S.C.A.Const.
Amends. 1, 14.
7. Constitutional Law o- 42.2(1)
Theater challenging city ordinance re.
quiring that viewing areas of booths in
which coin - operated viewing devices are lo-
cated be visible from continuous main aisle
did not have standing to assert Fourth •
Amendment rights of its customers which
might arise from police surveillance of open
booths in arcades that have complied with
ordinance. U.S.C.A.Const.Amend.4.
Richard J. Hertzberg, Phoenix, Ariz., for
plaintiff-appellant.
Sandra K. McGee, Phoenix, Ariz., for de.
fendants- appellees.
Appeal from the United States District
Court for the District of Arizona.
Before CHAMBERS, KENNEDY and
SCHROEDER, Circuit Judges.
SCHROEDER, Circuit Judge.
Appellant Ellwest Stereo Theatres ("Ell -
west'7 operates a Phoenix, Arizona movie
arcade in which members of the public pay
to view sexually explicit films in booths.
Ellwest brought suit challSnging thepnoti-
i-gity of Phoenix ordinance.
requirin that the viewing areas of booths
in which co_ i_n operated viewing de-- area
located be visibls_fmm-a- centinuoua_main._
aisle,_Qathe basia_of_stipulated -facts,_the_.
district court held that the ordinance was a
leas— onaale regulation of the operation of _V
theaters not based upon the content of the
3ilms shown and entered judgment _o C.
of the City. We affirm.
Chapter VII of the Phoenix City Code
requires, inter affa, that anyone engaged in
running a "video center" obtain a license
from the city. Section 7-�31.aXa) defines a
"video center" as "[a]ny establishment open
to the public wherein are operated any film
or videotape viewing device [sic]." Section
7- 30(aX6) provides as follows:
(6) Position of film or video viewing de-
vice in video center.
racy provi-
.C.A.Consf.
linance re-
booths in
ices are lo-
ma Isle
to ch
ce of open
Plied with
1.4.
Ariz., for
iz., for de-
,a District
EDY and
'.res ( "EII-
ma movie
iublic pay
n booths.
he consti-
ordinance
of booths
evices are
ous main
facts, the
ice was a
ration of
.nt of the
t in favor
'ity Code
lgaged in
a license
defines a
lent open
any film
Section
wing de-
ELLWEST STEREO THEATRES, INC. v. WENNER 1245
Chen 691 F2d 1243 (1962)
(a) Definition for purposes of this sec- First, Ellwest argues that its own exer-
tion. cise of first amendment rights is limited by
(1) Viewing area —area where patron
or customer would ordinarily be posi-
tioned while watching a film or video
viewing device.
(b) All viewing areas must be visible
from a continuous main aisle and must
n_ot obscured -by -any curtain,_ door, -
wall, or other enclosure.
(c) All persons regulated pursuant to
this Chapter must comply with Section
740(a)(6) within 30 days of the effective
date of the ordinance.
Ellwest is a "video center" within the
meaning of the ordinance and thus is re-
quired to obtain a license. Ellwest applied
for a license without complying with § 7-
30(a)(6) as set forth above. The application
was denied on the ground that the viewing
areas of the booths were not visible from a
continuous main aisle.
The City alleges that the ordinance was
passed as a response to complaints that the
display of adult films in the arcades was
causing sex- related criminal activity. The
parties atiQu�la_t�e_d, that " a me customers in
t e booms the viewing the films will on coca -,
s`on, a the opportunity to fondle them -_
selves or maslilrbale," The parties further
stipulated that in the two years - preceding_
t 1s aT wsuit1 _ we 783 sex- related
arrests in the eleven business establish
as
sex
The sole issue presented, as framed by
Ellwest in its appellate brief, is whether the
ordinance "requiring open booths in motion
picture arcades is unconstitutional on its
face as violative of the Free Speech and
Privacy provisions of the United States
Constitution."
1. Ellwest does not challenge the state's power
to criminalize public sexual activity. The slip-
ulated facts amply support the ClWs ceme11 -•
tion that such activity occurs with great fro -
quency in arcades where movies are exhibited
in enclosed booths.
the ordinance. Second, Ellwest asserts in-
fringement of the constitutional rights of
its customers under the first and fourteenth
amendments. Each of these contentions
will be analyzed in turn.
CLAIMED INFRINGEMENT OF ELI,
WEST'S CONSTITUTIONAL RIGHTS
[1] We begin with the proposition that
Ellwest has a constitutional right to exhibit
its films. It is settled that obscene materi-
als are not protected speech within the
meaning of the first amendment, as applied
to the states through the fourteenth
amendment. Ginsberg v. New York, 390
U.S. 629, 635, 88 S.Ct. 1274, 1278, 20 L.Ed.2d
195 (1968); Smith v. California, 361 U.S.
147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205
(1959); Roth v. United States, 354 U.S. 476,
485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498
(1957). The City does not contend, how-
ever, that the films are obscene, or that
their content is undeserving of first amend-
ment protection for any other reason. See
New York v. Ferber, — U.S. —, —,
102 S.Ct. 3348, 3358, 73 L.Ed.2d 1113
(1982). Thus, we must assume their dis-
semination by Ellwest is protected by the
first amendment. Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 501 -02, 72 S.CL 777,
780, 96 L.Ed. 1098 (1952).
Ellwest does not nor could it successfully
_ contend that the Phoenix ordinance regu-
lates speech on the basis of content.2 The
ordinance does not prohibit the showing of
any film whatever. Ellwest may still ex-
hibit any film it wishes, and its discretion in
selecting those films is unbridled by the
ordinance. "There is no claim that distribu-
tors or exhibitors of adult films are denied
access to the market or, conversely, that the
viewing public is unable to satisfy its appe-
tite for sexually explicit fare." Young v.
American Mini Theatres, Inc., 427 U.S. 50,
S. The ordinance by its terms applies to all en-.
closed video viewing booths regardless of thb
type of film shown. Its reach is not limited to
booths in which "adult" films are displayed.
Nor does Ellwest make a claim of discriminato.
ry enforcement.
EA
1246 681 FEDERAL REPORTER, 2d SERIES
62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310
(1976). This is not an ordinance which pro-
hibits the showing of any constitutionally
protected film. We thus are not faced with
the considerations which recently led us to
hold that a prohibition on all topless enter-
tainment was unconstitutional on its face as
overbroad. Chase v. Davelaar, 645 F.2d 735
(9th Cir. 1981). See also Erznoznik v. City
of Jacksonville, 422 U.S. 205, 95 S.Ct. M,
45 L.Ed.2d 125 (1975).
[2] The ordinance does regulate the
manner in which films chosen by Ellwest
maybe shown. Regulations of the time,
place, or manner of protected speech will be
upheld if necessary to further significant
governmental interests. Requiring such a
showing insures that expression protected
by the first amendment will not be unduly
inhibited by regulation of its form.
Reasonable regulations of the time,
place, and manner of protected speech,
where those regulations are necessary to
further significant governmental inter-
ests, are permitted by the First Amend-
ment. See, e.g., Kovacs v. Cooper, 336
U.S. 77 [69 S.Ct. 448, 93 L.Ed. 513] (limi-
tation on use of sound trucks); Cox V.
Louisiana, 379 U.S. 559 [85 S.Ct. 476, 13
L.Ed.2d 487] (ban on demonstrations in or
near a courthouse with the intent to ob-
struct justice); Grayned v. City of Rock-
ford, 408 U.S. 104 [92 S.Ct. 2294, 33
L.Ed.2d 222] (ban on willful making, on
grounds adjacent to a school, of any noise
which disturbs the good order of the
school session).
Young v. American Mini Theatres, Inc., 427
U.S. 50, 63 n.18, 96 S.Ct. 2440, 2448 n.18, 49
L.Ed.2d 310 (1976).
[3] Ellwest contends that the ordinance
is not justified as a reasonable regulation of
the time, place, and manner of protected
speech. It needs no extended discussion;
however, to uphold the open booth require-
3. In Young v. American Mini Theatres, Inc.,
427 U.S. 50. 96 S.CL 2440, 49 LFd.2d 310
(1976), the Court observed that a zoning regu-
lation requiring geographic dispersion of li-
censed theaters
does not, in itself, create an impermissible
restraint on protected communication. The
city's interest in planning and regulating the
ment against this line of attack. The ordi.
nance, as the parties have stipulated, is
aimed at curtailing public sexual criminal
offenses and as such it clearly seeks to
further significant state interests.' In this
respect we agree with the conclusion of the
California court of appeal upholding the
ordinance upon which the Phoenix City
Council patterned its own enactment. That
court explained the problem giving rise to
the prohibition of enclosed booths and con.
eluded that the ordinance furthered signifi.
cant interests of the city.
"A picture arcade is a business, carried
on in a place which the public generally is
invited to enter and use. Since it is a
place of entertainment, its patrons are
not expected to enter with the solemnity
of a business visitor at a mercantile es-
tablishment. Ordinarily those entering a,
picture arcade are seeking amusement,
relaxation or excitement, possibly sexual
stimulation or gratification depending on
the taste or mood of the individual and
the kind of pictures exhibitbd. Among
such visitors it is foreseeable that some
will be predisposed to conduct which is
offensive, dangerous to others and even
unlawful The potential for misuse of
the premises, for law violations, and for.
bodily harm to law- abiding patrons, Is
obvious, as is the concomitant need for
[deterring such conduct]."
The City has a substantial interest in,,
preventing the kind of dangerous or un-
lawful conduct, as well as the health and
safety problems, which may be anticipa-
ted in a picture arcade where the booths
are concealed or enclosed. The probibi-
tion of such booths furthers the City's
interest in deterring and detecting the
use of the premises for such unlawful
activity.
EWAP, Inc. v. City of Las Angeles, 97
Cal-App-3d 179, 189 -90, 158 Cal.Rptr. 579,
use of property for commercial purposes is
clearly adequate to support that kind of re-
striction applicable to all theaters within the
city limits. In short... , the regulation of the
place where such films may be exhibited
does not offend the First Amendment
Id. at 62 -3, 96 S.CL at 2448 (footnote omitted).
•
i. The ordi.
Lipulated, is
ual criminal
ly seeks to
,ts 3 In this
usion of the
holding the
loenix City
ment. hat
vin
hs
:red slgnifi•
less, carried
generally is
nce it is a
iatrons are
a solemnity
rcantile es-
entering a
amusement,
ibly sexual
pending on
vidual and
1. Among
that some
t which is
and even
misuse of
is, and for
3atrons, is
need for
interest in
sus or un.
iealth and
anticipa.
.he booths
e prohibi-
the City's
eting the
unlawful
igeles, 97
2ptr. 579,
mrposes is
find of re.
within the
ttion of the
exhibited
ent.
omitted).
ELLWEST
585 (1979), quoting People
Cal-App-3d 252, 258, 120 Cal.Rptr. 640, 643-
44 (1975). See also DeMott v. Board o1
Police Commis, 122 Cal.App.3d 296, 175
Cal.Rptr. 879 (1981).
We similarly hold that the ordinance does
not impermissibly infringe upon Ellwest's
first amendment rights.
STEREO THEATRES, INC. v.
Cite as 681 F2d 1243 (1982)
v. Perrin, 47 the possibility
CLAIMED INFRINGEMENT OF CUS.
TOMERS' CONSTITUTIONAL
RIGHTS
Ellwest argues alternatively that the or-
dinance impermissibly impinges upon the
first amendment and privacy rights of the
patrons of its establishment.
We observe initially that the Supreme
Court has never held that an owner of a
theater has standing to assert the constitu-
tional rights of its customers. In Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 65,
93 S.Ct. 2628, 2639, 37 L.Ed.2d 446 (1973),
the Court assumed for purposes of argu-
ment that the owner had such vicarious
standing, and we do the same here.
[4] The considerations discussed with re-
spect to the owner's right to exhibit the
films apply with equal force to the alleged
interference with the first amendment
rights of patrons to view the films. The
ordinance is a reasonable regulation of the
manner in which films may be viewed as
well as shown. See Young v. American
Mini Theatres, Inc., 427 U.S. 50, 79-80, 96
S.Ct. 2440, 24567, 49 L.Ed.2d 310 (1976)
(Powell, J., concurring); United States v.
O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673,
1679, 2D L.Ed.2d 672 (1968); EWAP, Inc v.
City of Loa Angeles, 97 Cal.App.3d 179,
189 -90, 158 Cal.Rptr. 579, 5&5-86 (1979).
Ellwest also contends that the open booth
requirement has a chilling effect on the
exercise by potential customers of the con-
stitutionally protected right to view the ex-
hibited films. Citing NAACP v. Alabama,
357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488
(1958), Ellwest urges that a law that expos-
es to public view the identities of persons
engaged in unpopular but nevertheless pro-
tected activity impermissibly chills the right
by subjecting those who would exercise it to
tion.
WENNER 1247
of vilification or recrimina-
We are not authorized, however, to deter-
mine the validity or invalidity of a statute
or ordinance in the abstract. There is nothc
ing in the record that supports the sugges,
tion that, because of the open booth re -,
quirement, potential viewers forego their.
right to watch films of their choice. By
Ellwest's own admission, its customers must
enter the establishment from a busy public
street. We presume that those who enter
are just as easily identified at the time theye
enter as they would be while in an open.
booth watching a movie. There is no basis
to conclude that potential viewers are more
intimidated by the prospect of being identi-
fied once inside than they are by that of_
being seen upon entering the arcade in the
first place. If that is Ellwest's contention,
the record should so demonstrate. Some
factual support is required before a federal
court will pass upon the constitutionality of
a law that allegedly chills the exercise of
first amendment rights. See Laird v. Ta-
tum, 408 U.S. 1, 12-16, 92 S.Ct. 2318, 2325-
27, 33 L.Ed.2d 154 (1972).
Ellwest's major concern is not with its
patrons' first amendment rights to view the
films, but rather with an alleged infringe-
ment of their right to privacy. The essence
of the argument is that the customers have
a constitutional right to fondle themselves;
therefore, argues Ellwest, the City may not
constitutionally require that the theater
open the booths and thus chill the patrons'
exercise of the right to masturbate.
We assume with a fair degree of confi-
dence that the activities Ellwest seeks to
protect may be enjoyed without govern-
mental interference in the sanctity of the
customers homes. Ellwest must establish,
however, that there is a constitutional right
to engage in such activities in a public
place. That issue has been decided against
Ellwest in Paris Adult Theatre I v. Slaton,
413 U.S. 49, 65-67, 93 S.Ct. 2628, 2639 -40,
37 L.Ed.2d 446 (1973). The Court there
held that the constitutionally protected
right to watch obscene movies in the priva-
cy of one's own home did not import a
similar right to watch the same movies in a
public place. The court reasoned that while
1248 681 FEDERAL REPORTER, 2d SERIES
viewing obscene movies in one's home,'
Stanley v. Georgia, 394 U.S. 557, 568, 89
S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969), and
engaging in sexual intercourse in the mari-
tal bedroom, Griswold v. Connecticut, 381
U.S. 479, 485 -86, 95 S.Ct. 1678, 1682, 14
L.Ed.2d 510 (1965), are both protected by
the constitutional right to privacy, that pro-
tection ceases when the locus of the conduct +
shifts to a place of public accommodation
such as a theater. The Court "declined to
equate the privacy of the home relied on in J
Stanley with a 'zone' of 'privacy' that fol-
lows a distributor or a consumer ... wher-
ever he goes. The idea of a 'privacy' right 1
and a place of public accommodation are, in
this context, mutually exclusive." Paris,
Adult Theatre, supra, 413 U.S. at 66, 93
S.Ct. at 2639 (citations omitted). In defin-
ing the limits of the constitutional right to
privacy, the Court invoked Justice Cardozo:
"[o]ur prior decisions recognizing a right to
privacy guaranteed by the Fourteenth
Amendment included 'only personal rights
that can be deemed "fundamental" or "im-
plicit in the concept of ordered liberty." "'
Id. at 65, 93 S.CL at 2639, quoting, inter
alia, Palko v. Connecticut, 302 U.S. 319, 325,
58 S.CL 149, 151, 82 L.Ed. 288 (1937).
[5] While we certainly agree with Ell -�
west that its customers have a constitution-
al right to view its films, we cannot agree
that the interest in simultaneously engag-
ing in sexual activity is similarly_ protected.
We decline io hold that the '-right "to unob ._
served masturbation in a _public theater is
"fundamental" or "implicit in the concept_._
of ordered liberty.
y [6,7] Ellwest also cites a number of
cases which deal not with the right to priva-
cy but with the fourth amendment right to
be free from unreasonable searches and sei-
zures. See, e.g., Katz v. United States, 389
U.S. 347, 88 S.CL 507,19 L.Ed.2d 576 (1967).
Ellwest seems to equate the ordinance re-
quiring open video booths with police use of
peep holes in public toilets. See, e.g., Peo.
ple v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr.
408, 506 P.2d 232 (1973); Bielicki v. Superi-
4. On the prematurity point, see the discussion
in California Bankers Assn V. Shultz. 416 U.S.
21, 94 S.CL 1494, 39 LEd.2d 812 (1974) (pas-
sim). Cf. laird v. Tatum, 408 U.S. 1, 11, 92
or Court, 57 Cal.2d 602, 21 Cal.Rptr. 552,
371 P.2d 288 (1962); 1 W. LaFave, Seared
and Seizure: A Treatise on the Fourth
Amendment § 2.4(c) (1978). The record
here does not indicate, however, either the
nature or extent of police surveillance of
open booths in arcades that have complied
with the ordinance. Moreover, any threat
of "dragnet searched' or "spying" is not a
threat to Ellwest's fourth amendment inter-
ests, but to the interests of its patron&
"Fourth amendment rights are personal
rights ... which may not be vicariously
asserted." Rakas v. Illinois, 439 U.S. 128,
133 -34, 99 S.CL 421, 4T4 -25, 58 L.Ed.2d 387
(1978), quoting Alderman v. United States,
394 U.S. 165, 174, 89 S.Ct. 961, 966, 22
L.Ed.2d 176 (1969). See also United States
v. Payner, 447 U.S. 727, 731 -37, 100 S.CL
2439, 2493-47, 65 L.Ed.2d 468 (1980). Thus
Ellwest has no standing to assert the fourth
amendment rights of its customers. Such a
claim is premature in any event, in the
absence of a showing that such searches
have indeed been conducted.4
Accordingly, we hold that the open booth
ordinance is not facially unconstitutional.
The judgment of the district court is af.
firmed.
w
u 5 trIMUM[an5lto
T
UNITED STATES of America,
Plaintiff - Appellant,
V.
Franke Eugenio MARTINEZ.
Defendant - Appellee.
No. 82-1353.
United States Court of Appeals,
Tenth Circuit.
June 24, 1982.
Rehearing Denied Aug. 4, 1982
The United States appealed from order
of the United States District Court for the
is
S.Ct. 2318, 2324, 33 LEd2d 154 (1972) (mere
fear of future detrimental action by govern-
ment insufficient to state Justiciable claim un-
der fast amendment).
u,
f
213 CatApp3d 829
r. However, be-
ights provided by
ion (g), are siatu-
x rights (Phoenix
,anies it Colony
.App-3d at P. 145,
principles are in-
chalk's argument,
ra o. v. City
tl. 730, 179
ppo position.
t subrogation for
olicy for property
by the city's neg-
79 Cal.Rptr. 814.)
ing as to section
: that case did not
gist subrogation.
to insurer's right
against a govern-
e indemnity was
:me limitation as
. at p. 735, 179
ilding, the court
.he type of subro-
atutory subroga-
f an insurer to be
of its insured is
rom a claim for
it statutory sub
4, 179 Cal.Rptr.
argument, Chalk
ute of limitations
lion (g), is uncon-
determining the
section 11580.'
,d only find the
rational relation -
e purpose. The
ity of the statute
g the classifica-
o s. Board of
11 Cal.3d 1. 17-
:isplaced. Funher.
iecided before :he
tddition to sectloa
- ee•tear statute d
aced.
SUNDANCE SALOON v. CITY OF SAN DIEGO
213 Cal.App.3d 807 Cite ae 261 Ca1.Rptr. 891 (GI.App.401st. 19891
112 Cal.Rptr. 786, 520 P.2d 10.) Further, lr.DISPOSITb0N
"'all presumptions and intendments favor
the validity of a statute and mere doubt The judgment is affirmed.
does not afford sufficient reason for a judi-
cial declaration of invalidity. Statutes KREMER, P.J.. and HUFF
must be upheld unless their unconstitution- concur.
ality clearly, positively and unmistakably
appears. [Citation.]"' (Durham v. City w
of Los Angeles (1979) 91 Cal.App.3d 567, O Ttlr Mw 9f0.1YSItM
572, 154 Cal.Rptr. 243.)
In the context of uninsured motorist pro-
tection, the Legislature has determined
that insurance companies must offer their
insured protection against loss caused by
motorists who, in violation of state law,
drive without maintaining financial respon-
sibility. (See Veh.Code, §§ 16020, 16021.)
Under section 11580.2. subdivision (i), those
injured by uninsured motorists have one
year to make a claim against their carri-
ers —the same amount of time the injured
insured would have to file suit against the
driver causing the accident if that driver
were insured. Once the insurer has com-
pensated its own insured for damages
caused by the uninsured driver, the insurer
may subrogate against the uninsured driv.
er.
Statutes of limitations are intended to
vary, reflecting "the legislative policy of
differing the periods of limitation according
to the degree of permanence of the edr
dence and the relative favor with which the
Legislature views the type of claim or class
of litigants. [Citation.]" (Liberty Mut.
Ins. Co. v. Fales, supra, 8 Cal.3d at p. 721,
106 Cal.Rptr. 21, 505 P.2d 213 (Sullivan, J.,
dissenting).) Section 11580.2, subdivision
(g), bears a rational relationship to the
state purpose of permitting insurers re-
quired to write insurance based on the risk
of their insureds being injured by unin-
sured drivers to seek reimbursement from
these drivers. The three -year limitation pe-
riod of that provision protects the subroga-
tion rights of the insurer from being
barred before they actually accrue. (Inter -
insurance Exchange v. Harmon, supra,
266 Cal.App.2d at p. 762, 72 Cal.Rptr. 352.)
Because the extended limitation period of
section 11580.2, subdivision (g), serves a
legitimate state purpose, the statute is con-
stitutionally valid.
CIT y OF ��EWp0,4r,tV
MAN, J., CRrBEaCt(
213 Cal.App.3d 807
_LRotSUNDANCE SALOON, INC., Plaintiff
and Appellant,
V.
CITY OF SAN DIEGO, Defendant
and Respondent.
No. D008383.
Court of Appeal, Fourth District,
Division 1.
Aug. 30, 1989.
During chvllenge to constitutionality
of cabaret ordinance requiring cabarets to
close between hours of 2:00 a.m. and 6:00
a.m., cabaret owner sought preliminary in-
junction against enforcement of ordinance.
The Superior Court, San Diego County,
James R. Milliken, J., denied motion for
injunction, and cabaret owner appealed.
The Court of Appeal, Benke, J., held that
cabaret owner was not entitled to prelimi-
nary injunction as owner would not suffer
irreparable harm if ordinance was enforced
nor was he likely to succeed in his chal-
lenge to ordinance at trial.
Affirmed.
Wiener, Acting P.J., filed dissenting
opinion.
1. Injunction X138.21
In considering motion for preliminary
injunction, trial court evaluates harm plain-
tiff is likely to suffer if injunction is denied
compared to harm defendant is likely to
SUNDANCE SALOON v. CITY OF SAN DIEGO 849
213 Cal.App.3d 821 Cite as 361 Cal.Rptr. 841 (CaLApp. 4 Dbl. 1989)
lion of entertainment. The key question in lion incidentally affecting those rights be
this case is whether the incidental restric- narrowly drawn, we also recognize the dif-
tion on First Amendment rights inherent in faculties inherent in using such a standard.
the closing hour regulation is essential to As Justice Blackmun said in a concurring
the furtherance of the claimed justification opinion in Illinois State Board of Elee-
for the regulation. tions V. Socialist Workers Party (1979)
Sundance argues the resolution of this
issue in its favor is dictated by People v.
Glaze, supra, 27 Cal.3d 841, 166 Cal.Rptr.
859, 614 P.2d 291. While we agree the
facts in Glaze are superficially similar to
those in this case, they are nonetheless
distinguishable. The issue in Glaze was
stated as follows: "Under the California
Constitution, may a city pass an ordinance
which requires only picture arcades to close
between the hours of 2 a.m. and 9 a.m. in
order to prevent the possibility of mastur-
bation by any of their customers ?" (Id. at
pp. 843 -844, 166 Cal.Rptr. 859, 614 P.2d
291.)
The issue in Glaze, as in this case, was
whether the city had proved its ordinance
was narrowly drawn and necessary to its
legitimate governmental interest. The city
claimed the closing hour regulation was
reasonable since it helped prevent mastur-
bation during hours when law enforcement
problems are greatest. The court rejected
the claim. It stated the ordinance, by sim-
ply arresting the offenders, undertook a
method of enforcement that curtailed the
First Amendment rights of others rather
than dealing with the objectionable conduct
directly. (People v. Glaze, supra, 27
Cal.3d at pp. 846 -848. 166 Cal.Rptr. 859,
614 P.2d 291.)
The court also found the ordinance over-
broad in that it failed to regulate only
those picture arcades that have been or are
likely to be havens for masturbation. The
court noted the regulation required the
closing not only of peep shows with many
picture booths but also bookstores with
only a few motion picture machines and
even arcades showing Mickey Mouse car-
toons. (People v. Glaze, supra, 27 Cal.3d
at pp. 848 -849, 166 Cal.Rptr. 859, 614 P.2d
291.)
While we readily agree the paramount
importance of constitutionally protected
rights justifies a requirement that legisla-
440 U.S. 173, 188 -189, 99 SAX 983, 992-
993, 59 L.Ed.2d 230: "A judge would be
unimaginative indeed if he could not come
up with something a little less 'drastic' or a
little less 'restrictive' in almost any situa-
tion, and thereby enable himself to vote to
strike legislation down."
[71 When constitutionally protected
rights are involved, courts do not owe to
legislative action the same deference ac-
corded in less sensitive areas.
lzl(Spiritual Psychic Science Church v.
City of Azusa (1985) 39 Cal.3d 501, 514,
217 Cal.Rptr. 225, 703 P.2d 1119.) Still,
especially in the context of a motion for
preliminary injunction, when the issues
have not yet been tried, courts should not
too readily discount the stated need for and
justifications expressed by legislative bod-
ies in support of laws even when those
laws incidentally affect First Amendment
rights.
A closing hour regulation implemented in
order to control masturbation is far differ-
ent than a closing regulation designed to
help control the potential for excessive
noise and disorderly conduct associated
with cabarets. The control or failure to
control masturbation seldom has an imme-
diate impact on the community and the
policing problems involved with it are nar-
row. On the other hand the generation of
excessive noise and the potential for disor-
derly conduct by the patrons of establish-
ments that serve alcoholic beverages and
provide live entertainment are often imme-
diate, intrusive and dangerous to control.
In 7978 Corporation v. Pitchess (1974)
41 Cal.App.3d 42, 115 Cal.Rptr. 746, the
court, dealing with closing hour regulations
for establishments allowing dancing or pro-
viding entertainment stated "the county
could justifiably conclude that by reason of
particular circumstances of noise and pub-
lic congregation the activities that accom-
pany plaintiffs' type of business present
a
T,
i
r
}
261 CALIFORNIA REPORTER 213 Cal.App.3d 821
special problems that require special regu-
lation." (1d. at p. 48, 115 Cal.Rptr. 746.)
The court also stated: "We cannot say that
the closing hours imposed on plaintiffs'
business are arbitrary or unreasonable.
The county could justifiably conclude that
public dancing and public entertainment 'at
such late hours would tend to attract and
congregate evilly disposed persons at hours
when the [county) would be least prepared
with police to guard against the acts of
such persons.' (City of Chicago v. Green
Mill Gardens, supra, (1923) (305 III. 87]
137 N.E. 126, 128.) The county could also
conclude that during a portion of the 24-
hour day the desires of those who seek to
present public entertainment around the
clock should yield to the wishes of those
who seek peace and quiet in the small
hours of the morning. As further evidence
of the reasonableness of the regulated
hours, we note that the closing hours corre-
svond precisely with the hours during
which alcoholic beverages may not be sold.
(Bus. and Prof.Code, § 25631.)" (1d. at p.
47, 115 Cal.Rptr. 746.)
/ While Sundance s correct that more
nar-
row regulations, , requiring, for example
,
the hiring of security guards, the removal
of disorderly patrons and the promulgation
of noise restrictions, all more directly ad-
dress the evils perceived by the council, we
do not believe the government is foreclosed
from adopting regulatory schemes that not
only deal with problems after they exist
but also attempt to reasonabl remove the
potential for sucrobl ms. (See Ward
v. Rock Against Racism, supra, — U.S.
at pp. - - -, 109 S.Ct. at pp. 2756-
2760.) That the police can deal with disrup-
tions the the peace or close establishments
after the fact is insufficient. Prevention of
disorder is a reasonable goal of the subject
ordinance.
[81 In this case Sundance laments the
serious deprivation of its and others right
to free expression caused by the require-
ment it and other cabaret owners close
their establishments four hours a day.
Viewed as a whole, however, we believe the
ordinance in question is a reasonable and
narrowly drawn device which compromises
well the desire of some for constant and
unending entertainment and the desire of
others for a reasonable assurance of peace
and quiet in the early morning hours. Not
only does the section allow cabarets to be
open 20 hours a day, it allows cabarets to
remain open 24 hours a day if they are
located in areas where the potential for
disruption to residences and other business-
es is slight and where they have demon-
strated by their adherence to the law that
they are responsibly operated.` The trial
court did not abuse its discretion in deter-
mining it was unlikely Sundance would pre-
vail at trial.
The order denying the motion for prelimi-
nary injunction is affirmed.
HUFFMAN, J., concurs.
WIENER, Acting Presiding Justice,
dissenting:
I view this case in far less dramatic
terms than my colleagues. I see it as a
relatively routine appeal in which we are
called upon to apply established precedent
to the factual record before us. Burdened
with this mind -set I am puzzled why the
majority finds it necessary to decide this
case on two independent grounds, one of
which creates a confusing opaqueness in
settled law.
The settled law to which I refer consists
of Elrod v. Burns (1976) 427 U.S. 347, 373,
96 S.Ct. 2673, 2689, 49 L.Ed.2d 547, Ebel v.
City of Corona (9th Cir.1983) 698 F.2d 390;
Ketchens v. Reiner (1987) 194 Cal.App.3d
470, 239 Cal.Rptr. 549, and American Bo-
oksellers Assn., Inc. v. Superior Court
(1982) 129 Cal.App.3d 197, 181 Cal.Rptr. 33.
Each of these cases says that "the loss of
First Amendment freedoms, for even a
minimal period of time, unquestionably con-
stitutes irreparable injury." (See also Gu-
tierrez v. Man. Ct. of S.E. Judicial Dist.
(9th Cir.1988) 838 F.2d 1031, 1045; Pacific
West Cable Co. v. City of Sacramento,
Cal. (9th Cir.1986) 798 F.2d 353, 355; San
Diego Committee v. Governing Bd. (9th
Cir.1986) 790 F.2d 1471, 1473; Goldiet
Book Store v. Superior Court (9th Cir.
1984) 739 F.2d 466, 472) Unlike my col-
leagues I am unable to treat this statement
j/ f�NLC —D. C.
^ &( ,
7036e42 951
HART ROOK STORES. INC. v. EDMISTVN 821
C1t* &% 612 r.3d 621 / 19791
groups to enforce not public reg. torney for 5th Judicial District: Edward
ulations written by public au;ourtty but W. Grannis. Jr., District Attorney for
rcgu!ations for the insurance business 12th Judicial District: Wade Barber. Jr..
which :hey ".t-ote '.1c. ^sei'rt.." ;i `'ong District Attorney for 15(b) Judicial Dis.
Rec. 1435 {1943) !remarks of Sen. 0.Maho. trict: C. D. Knight. Sheriff. Orange
ney) County. North Carolina: Herman Stone.
Chief of Police. City of Chapel Hill.
resprtCallc tiisstnt.
North Carolina, Appellants.
[
U. T. INCORPORATED. a Georgia Corpo-
ration. d /h /a Camerab Eye Bookstore:
and Kind's Eye. Inc.. a :forth Carolina
« Corporation. d /b /a as ]find's Eye and
om +tset,ptay Imperial Book Store, Appellees.
,47_%� -If, ya c, 6,w)
4 �i�ji/,U� 1
HART BOOK STORES. ZINC.: "ci`gh
Books. Inc.: Tri-State News. Inc.: Ron-
ald Sfothershead. d /b /a R. and 1f. Adult
Book Store: Je +se F. Frye. Jr.: d /h /a L
& J. News Gand: Larry Gene Moore.
d /b /a E. & M. EnterPrises: Thomas
Page, d /b /a Player's Book Store: Jo.
seph Raymond MC Broom. d /b /a 51 Dis-
tributors: Camera's Eye. Inc.. a North
Carolina Corporation Appellees
V.
Rufus EDMISTEN, Attorney General of
the State of North Carolina: Joseph
Drown. District Attorney of the Twenty.
Seventh Judicial District and Individual.
ly: C. C. Elmore. Chief of Police of City
of Gastonia and Individually: Peter Gil-
christ, District Attorney for the Twenty -
Sixth Judicial District and Individually:
Donald Greene. District Attorney for the
Twenty -Fifth Judicial District and Indi-
vidually. Appellants.
t y Nos. 79 -4461. 79 -li06.
1
t
it.dus, ISiJ �i1RTF.ti.tttorney Central of. L
.rth Carolina: fLandolph Rile), Dis.
t;ict attorney forloth Judicial District:
E. Raymond Aiexander. District Attar.
ney for 16th Judicial District: Donald K.
Tisdale. District Attorney for 21st Judi-
cial District: Donald Jacobs. District
Attorney for Fth Judicial District: Dan
K. Edwards. District Attorney for Itth
Judicial District: if. W. Zimmerman.
District Attorney for 22nd Judicial Dis-
trict: Donald Greene. District Attorney
for 25th Judicial District; James C.
Roberts. District .Attorney for 19th Judi.
cial District, W. A. Allen. Sheriff. Dur-
ham County, North Carolina: T. B.
Seagroves. Chief of Police. City of Dur-
ham, North Carolina: The State of
North Carolina; William H. Andrew %.
District Attorney for 4th Judicial Dis-
trict: William Allen Cobb. District At•
Gnitud SLites Court of Appcais.
d'oonh Iirruu..
Argued April •1. 1979.
Dccidcd ntc. 4 1!1_J. +
\orth�&nruiinarty atwi from a judg-
ment of the United States nistrict Court
for the Ea +tern District of North Carolina.
Franklin T. Dupree, Jr.. Chief Judge, and a
judgment of the United Sates District
Court for the Western District of North
Carolina, James B. McMillan. J., 350
F.Supp. 903, Jtolding- vncnnatiwtiorul�a,
.North CarolinehMtute"P0vIif fi�'Chav4k4%n-
gle building that contitns„an4wluitffbook,
store. aliult. theater ' =at1'aotlult_niinitheatLr,
5w% 3-7 5'
3a� �aS
P.
g�
pp XG
CF �1 ✓ y
FEB i iGiy
Cirr.al +C.�.:s_4 S
CITY OF NE'NPOh'� aF• >..
.,
1.
X
323
1113 FEMERAL REPORTEIL 2d SERIFS
itrc df fuettil no diffcrcntly from any nth.
437 U.S. at 75. 96 S.Ct. :'.L 2454 (Pawe!l. J..
er commercial enterprise that suffers ecu-
cuncurring). R'hcther or not the statute is
nomic detriment as a result of land-use
a true toning law.' it is a legitimate exec
regulation. The casusare 1ugiun thalautry
cisc of the police lower, under which the
iainedsoning- against +ctaimsaof >teriou ka
state may Emit :he use of private property
4gonomie- damage. .
for the public welfare. Village of Belle
the- inquiry-for First Amendment -pwl.
Terre v. Boraas. 416 U.S. 1, 94 S.Ct. 1536.39
posea.is- not concerned wi th- economic am4
L.Ed.2d 791 Mill): Euclid v. Ambler Real'
p` aet;_rather.-it looks only to the effect 9j6 ty Co., 272 U.S. 365. 47 S.Ct. 114. 71 L.F,d.
tihis.onlinance upon- froedom of..cxpEeqr
303 (1926).
sion.
Tjw_next.qu(;sti0ft is whether_ the- regula-
4. 1 U.S. ut 48. 96 S.Ct. at 2.156 (Powell. J..
toj�., furthem- an- iml)ortanf"ot-substantiai
trot. •urring)!
jatsrest. eWe conclude that it does. North
Qu.•ausc wA(_cuncludu -that -the challengcil4
Carolina certainly has a substantial interest
gFrtutt is directed primarily .trthe-noncom�
in maintaining a stabler healthful-environi
�nunicatl-e�spects of prdt &co -expressions•
e= is_ciiles. ;The.�egisiaturesoul.4
with only : n incidental effect on expression
�tpent
.ru ion: tbt�- huvc.ictcrmined_Lhat.thedee @7"•
itseif 7 fur: 'or analysis under the test in
ppmcat ahthc 'wwl, under one roof" ap-
Coitcff State, v. O'Sricn. 391 U.S. 364, 88
,proach- to-the-rnarketing pLs'esusily explicit
S.Ct. 1673. 20 _.Fe1.2d 672 (1W) is appnt-
matte nil,•„lievieca -r rndLti- to- prodAM
priate. The Er:. (location is whether the
.utG0fipry cffectsdestructive of- th"enelaW
regulation lies gch. -ally within the consti.
gesl' ('liTE-in- the- eeighbdrh -obd. While
tuitional powers of tr:, stale. On thin there
there is no- formnidegialntive historylotAe
can I* no doubt that .hte statute. like the
44w., t e ecprd .,dttda.ahow_that-altaapunsar
regulation in .Mini- Thc_'trx. is "certainly
of th atitmwal• concerned. to_bring
within the concept of tn. public welfare
thus- srtrontMry efi0fK9"St4'the icgiaiature'a
that dufines the limits of the (*lice lower."
-tlnn ion,1 4 legislative determination
6. Ace alcn Borrapo V. City w 'muon -Mr. 456
F Supp• 30. 31 (W.D.Ky.1978) $250 annual
license fee and expensive requiresent of door
attendant to exclude minors): Arr,Vre Bonk
Store, lie. v. Jackson. 242 Ga. 214. 2•:8 S.E.2d
623. 625. 629 (1978) ($500 licensing tr estig3-
uon fee and employment disqualification for
convicted felons): Northend Cinema. Ina v.
City of Seattle, 90 Wash.2d 709. 585 P.2d 1 53.
1160 (1978) (en bane) (location restriction sin., -
tar to Mini - Theatres ) 4ttle"blectioncthar3im-
V y having -to move to another loc }tlon pr,6 W'
Qiglrent type of film is substantial economic
hatLt, is _u nsuppm ed").
7. We reach the same conelusmn. via the same
analysts, whether the statute is challenged as a
prior restraint. a subsequent restraint. or as an
unconstitutional condition. see U. T. Inc. v.
Edmiston, slip op. at 4.
8. Appellees contend, and bon district courts
below fuund. that the chanenct-d statute is WE
a toning law. U. T. Inc. v. Edmisten. slip op. at
3: Il.iri Book .Shuns. Inc. t•. Edommen. 450
F.Supp. at 90607. While we do not conside(
th�s�ppiaL.CrueNl_1 out-- atinh•gt5':vf�vbulC
note lu 7)y zotung enactments -pr"oFZ`61Ftlae
m ng4fariitvlai- VSes"°fii'a`xtngle`liu'ilillnait
matte- lNOYl7P"C1?W statute a?><tr>�he
CaM.bjpagt+a- ofadult�0'sis in a"`-` iMgg MuulfftAS.
'17he Supreme Cuurt sustained under the zoning
power an ordinance prohibiting the residential
use of a uncle dwelling by unrelated individu-
als n Village of Beale Terre v. Boraas. 416 U.S.
1. 9, 94 S.Ct. 1536. 39 LEd.2d 797 (1974). and
)Ipheld re -a�`Yu at oii-proscnbng-the- combing
bse.ot.. stn (c1etommeremt•bonftffi�'TorSen W
I ,4r'ePliea- sntet3a+orrKO U.S. 1 tfMQ93 S-334�
a09 U.S. 109. 93 S.Ct. 390•
34 LEd.2d 342 (1972). Many laws.prohibit the
combination of a residential use and a corruner-
last use of a dwelling: see. e. x.. JamrSpn v
K•vles. 271 N.C. 722. 137 S.E.2d 530 (1967):
City of Ftorence v. Turbetalle. 239 S.C. 126. 121
S.E.2d 437 (1961).
,pijaiurst -4" nrrelevantttia- t"tlf8"Cli'all "engeg
fj) erctsaef the police power u1i' i u5t @'4itkeN
tha" municipah►y. even if it be thought 'in,
portant to qualify the state statute as a zon-
ing"' law of the kind considered in Mini -Thea-
rres. Both the general police power. and that
aspect of it realized in "zoning" regulations.
arc reposed onginatly in the state. Staff v.
Jgvrier. 286 N.C. 366, 369. 211 S.E.2d 320. 322
(1975): Allgood v. rotvn of Tarboro. 281 N.C.
430. 437. 199 S.E.2d 255. 260 (1972).
9.. The sponsoring senator read to a legislative
comnuttee considering the bill a report from
the Director oia• QebntS"ftfalttr�DeDatsrnens'Bda
:lta
Lit ••
fcc
sta
But
(1F
th
es
fr
th
th
..t
h:
M
cw
tl
p'
t.
r
NIC-L. C.
7036642951
HART BOOK STORES. INC. Y. EDMISTEN
Cite u 612 F.2d 821 (19-191
that the d6pe- ai ni the mhrketiriv artivi-
ues might ameliorate these secondary ef-
fects to some extent. thereby fumlicring thb
±tate's interest. <anenl Ile lhvot!ht a^rca-
sonabie. See .kirport Boat Store, Inc. v.
Jackson, 242 Ga. 314.318 S.E.?al 611. 61N _"J
{ 1978).11
829
VA.pr.t- "ii wnether-an"'ideMI., 6..i „a•
�Pyurnmcntai- mtcrest"^ is • sa- uru•c,ut.ei.
Indeed the +v- Geare- sceciiictille di : :a.
':uwt:•i any oonslucra::un of the !utrlaia Lte
motive: "It is a familiar principle W consti.
tutionai law that this Court will not strike
sown an otherwise constitutional statute on
p
Closely entwined is the ext.elomelit of the basis of an alleged illicit iegisiative mo-
the O'Br :en test: w+hethert�'fIRRa• tits." United States V. O'Brien. 391 U.S. at
ast_is�ae +tnrelated�o-ttre- snppte9sitm -eb• 393 88 S.Ct. at 16.22. .ks the Court there
free_dxpression. Qne_Jistrict- courtaruled observed• in conducting this inquiry, it is
that the statute failed this requirement of hest to eschew altogether the "guesswork"
the O'Brien test. That court ryncludonor at' of s chlatleg about the motive of lawmak.
-the -ile; capable- intcrentte'IS'ffi'a2 ectiiiSrfiSe �'
arm. -to- plaintiffs' businesses -was- the-prim ers, for the obvious reasons that many legis-
,rlary_icgisiative-motive." 450 F.Supp. at lators may have different purposes in legis-
907. We believe that this conclusion misin- lation than the few who are moved to com-
terprets the O'Brien test. Tho-mluvant, ment on it. Id. at 3&1, 88 S.CL 1673.11
question- undet'0'Bnen Is hilt- whbther•the Qourts must look in the final analysis to #e
perceived :: Jegislative - motive`- tor•iegisiac iggi Is4;itneilseJf;, On its face the chat.
„ bon` s. uA- EV]aced.Lo- tho_suppressionjit. r, a longed statut: is a permissible regulation of
ine results of'jn a speciiini of sevettff atfecm8
establishments in Wake C6uniy:
They visited rive such establishments. At
each they saw the usual arrsy of pnrnograph•
,c publications. Whey, found also - cubicles- o(,
esnWli.boinbawvM • rc )•atmm=t•ntta;wit,htuat.t
Quaner_and.-view. assorted..sataamns =films.
sCenam ••t Me- male- c�stmi,er6- anasu,rlauc
ugder aim -resutumt- sumutauonwclaculaung
,upon - the °nec? 7tnd -wads: e74teOYtiAnnxwr
sera:a.w•ns•so•cwnsulurablyd,y. mid• :tl u•rntwm
� ;.,tR.Aatr,cklinR •cMw�t°tlieivblt`;6'•'i h'e'Yhxv.
Each of the five places Checked had such
cubicles and Glut projecting equipment.
These numbered fn,m twelvt• in mxtrt•n.
Though only male customers were seen nn
this occasion. females me assn afforded sdm•
lar attention .t]dns= ii «�w;2.IJW,sS4t14k'y
.gerq- av_auable tnrsale..t•xsearirlxt a n• u••
per far tcntne•lNhexrfri:i)P"
feed aonti�ms-hueredthe�4lnnra. Thu use
therefor can only be speculated upon.
When questioned aboutaho anrssethe'ntn•M
ators eenetal!Y. zopservcd„thtlt,.i -ekdnk do
much good to clean- up:- ••Twusoun.an<o410
�er.agatn' ..
10. Other decisions have found similar location
restrictions for adult establishments justilied as
zoning to serve the legitimate interests in pre•
serving residential neighborhoods and prevent-
mg urban decay. Norroviv Theatre Inc. v.
Cobbs. 171 F.Supp. 161. 369 ( &D.Mich. l9'4),
rev'd sub nom. American ,Mini Theatres. Inc. v.
Cribbs. 516 F.2d 1014 (6th Cie. 1975)• rer'd soh
stint). Toting v. Awrncan Nfia, lhratn•s. role.,
427 U.S. 50, 46 S.Ct. 2440. 49 L.Ed.2d 310
(1976) (locatnnn for regulation necessary for
-preservation of neighborhoods-): Northend
Cinema. Inc. v. City of Seattle. 00 Wash.2d'09.
58S P.2d 1153. 1156 (1976) (en bane) (sustain•
ing lower rnurt "finding that the location of
adult theaters has a harmful effect on the area
and contnbule(sl to neighborhood bliaht••): see
Toting v, Anu•ntan Mini 'fheatics. Inc., 427
t: S. at 55. 06 ntri on frttpert testimony that /
heathy cnrcentrauon "encourages res,oents
I-% move elsewhere): Lns Angeles
1kyn, of ('ray Planning. Stuns of the Effects of
the Cvnr!•ntratmn of Adult Entertainment Es•
tablishu,arnts in thiL iv of-Les Anoriec 5 fCily
Man Cwt Nn MATS. City Council File No.
71 4ra1 S.I. 1't77t(hrn•maflvr cited as bifi•cts
of the Conn :•nrrarion of Adwt Fstablishmonts )
( °Custnlx,lnvo. realdenls, etc. b -lteve that the
concenlrnunn of adult estabUnhments has .d-
ear¢,• t•if•y ^A nn the •4•Jahly ill We
imonr the adverse effects on the
gtuhty of Lb- rhru art• inereacod crime: the
r(leets r•n <Wdrvn: nei,chbo:huod appeararee.
litter and graffiti. ").
It. Typical of the dead-end into which such
judicial inquiries are likely to lead is the con•
flicting evidence about the personal motive of
the House sponsor of this legislation.. His own
affidavit stated that he introduced this bill in
hope that "the immoral atmosphere and unsan-
itary conditions described it.. the health inspec-
tor's letter would be Ins likely to occur."
(App. 61). Two newspaper reporters who cov-
ered the bill's passage stated in affidavits that
the legislator had laid them he sponsored the
bill bcT0113c it would cut the profits of adult
businesses and probably would drive them out
of business. ULApp. 82. 64).
P.06
s
1!
lfi
sloe
"i'
:C:,.
A- '
501
isel, he notice re.
(k) i necessary to
the loss of their
s 's rights
noto have been so
m of action against
tecrue by any of the
• su ivision (i), the
(k) as been fully
:n bro ght or formal
i ins tuted, the in.
anted by counsel or
cy fo knowing the
nitati n by acting as
i no " itatute of limi-
ch irt ury or death"
r limi ation specified
Sure i ection 340 and
:ion 1 5802, subdivi-
the ii Lsured of these
:surer is required by
notice (Branham v.
o. Ins Co. (1975) 48
121 Cal.Rptr. 304.)
on is taken to avoid
;her i otice of them
ldant, since it would
d witli any informa-
ice to him. Nor is
the c rcumstances to
1 give notice of the
mpos by Code of
1 337. If the insurer
y on the claim, the
ion under the policy
ir-year limitation of
e scion 337 is appli-
�s no r iore of a threat
than it does to any
ach of contract claim.
nitati4 n applicable to
ich notice is required
Sion 1 5802, subdivi-
section evidences no
of the Legislature to
panies to give notice
i of limitations which
•eds' rights. Insurers
ad by delay as other
FEE 11. 19913
V.
The ADULT WORLD BOOKSTORE et
al" Defendants and Appellants.
Civ. 18053.
Court of Appeal, Third District
July 21, 1980.
As Modified on Denial of Rehearing
Aug. 15, 1980.
Hearing Denied Sept. 17, 1980.
County district attorney filed com-
plaints against "adult" bookstore operators
for injunction and nuisance abatement un-
der the red light abatement law. The Sac-
ramento County Superior Court, John M.
Sapunor, J., granted a preliminary injunc-
tion, and defendants appealed. The Court
of Appeal, Pares, Acting P. J., held that in
respect to tite lewd conduct taking place in
the bookstores, ample evidence supported
the trial court's implied finding of defend-
ants' knowledge "of the presence of persons
who may be offended" as well as that the
conduct occurred in a "place open to the
Public"; thus, there was ample support for
the trial judge's effort, by way of prelimi-
nary injunctive relief, to both reasonably
apply the red light abatement law and to
Protect the constitutional right of the public
to patronize "adult" bookstores, free from
Offensive conduct of strangers.
Affirmed.
3. Appeal and Error t- 954(1, 2)
Grant or denial of a preliminary injunc-
tion will be reversed on appeal only if there
is demonstrated a clear abuse of discretion.
4. Appeal and Error 0-920(3)
Reviewing court should interpret the
facts most favorably to the prevailing party
and draw such reasonable inferences and
indulge in such intendments as will support
the trial court's ruling on a motion for
preliminary injunctive relief.
5. Nuisance 0-61
The red light abatement law creates a
statutory nuisance per se. West's Ann.Pen.
Code, § 11225 et seq.
S. Nuisance 0-77
Although an action under the red light
abatement law is a civil action, it is penal
when contrasted with nuisance actions
brought under the Civil Code, as it is a
forfeiture proceeding based on illegal activ-
ity. West's Ann.Pen.Code, § 11225 et seq.
7. Nuisance 0-80
A temporary injunction to abate a nui-
sance may issue under the red light abate-
ment law upon a showing of the existence
of a nuisance to the satisfaction of the
court, but a building may not be closed
thereby unless there is no other way to
prevent recurrence or continuance of the
nuisance. West's Ann.Pen.Code, §§ 11225
et seq., 11227.
COY Ai 1 ORNEY
108 Cal.App.3d 404 PEOPLE v. ADULT WORLD BOOKSTORE CITY OF NEWPo DI93EACH
Cite as. App., 166 CARpa. 319
litigants. The failure of petitioner to take
1. Injunction C-132
any action upon her claim for five years
The preliminary injunction is a result
after filing suit was inexcusable.
of balancing the equities of the respective
I would affirm.
parties and concluding therefrom that,
pending an ultimate full trial on the merits,
certain conduct should be regulated or pro-
wq
hibited.
O f NEYNUMBERSYS'EM
�2.
Injunction eo136(3)
�
A preliminary injunction represents the
trial court's conclusion that greater injury
108 Cal.App.3d 404
will result to the plaintiff if a preliminary
1o. 1The PEOPLE of the State of California
injunction is denied than to the defendant
Plaintiff and Respondent
if it is granted.
V.
The ADULT WORLD BOOKSTORE et
al" Defendants and Appellants.
Civ. 18053.
Court of Appeal, Third District
July 21, 1980.
As Modified on Denial of Rehearing
Aug. 15, 1980.
Hearing Denied Sept. 17, 1980.
County district attorney filed com-
plaints against "adult" bookstore operators
for injunction and nuisance abatement un-
der the red light abatement law. The Sac-
ramento County Superior Court, John M.
Sapunor, J., granted a preliminary injunc-
tion, and defendants appealed. The Court
of Appeal, Pares, Acting P. J., held that in
respect to tite lewd conduct taking place in
the bookstores, ample evidence supported
the trial court's implied finding of defend-
ants' knowledge "of the presence of persons
who may be offended" as well as that the
conduct occurred in a "place open to the
Public"; thus, there was ample support for
the trial judge's effort, by way of prelimi-
nary injunctive relief, to both reasonably
apply the red light abatement law and to
Protect the constitutional right of the public
to patronize "adult" bookstores, free from
Offensive conduct of strangers.
Affirmed.
3. Appeal and Error t- 954(1, 2)
Grant or denial of a preliminary injunc-
tion will be reversed on appeal only if there
is demonstrated a clear abuse of discretion.
4. Appeal and Error 0-920(3)
Reviewing court should interpret the
facts most favorably to the prevailing party
and draw such reasonable inferences and
indulge in such intendments as will support
the trial court's ruling on a motion for
preliminary injunctive relief.
5. Nuisance 0-61
The red light abatement law creates a
statutory nuisance per se. West's Ann.Pen.
Code, § 11225 et seq.
S. Nuisance 0-77
Although an action under the red light
abatement law is a civil action, it is penal
when contrasted with nuisance actions
brought under the Civil Code, as it is a
forfeiture proceeding based on illegal activ-
ity. West's Ann.Pen.Code, § 11225 et seq.
7. Nuisance 0-80
A temporary injunction to abate a nui-
sance may issue under the red light abate-
ment law upon a showing of the existence
of a nuisance to the satisfaction of the
court, but a building may not be closed
thereby unless there is no other way to
prevent recurrence or continuance of the
nuisance. West's Ann.Pen.Code, §§ 11225
et seq., 11227.
108 Cal.App.9d 408 PEOPLE v. ADULT WORLD BOOKSTORE
Cite as. App-. 166 CaLRptr.519
of the Sacramento County Sheriff's Depart-
ment and the Sacramento City Police De-
partment repeatedly visited the bookstores
and observed the behavior of persons in
some 39 motion picture booths located
therein. In the booths, films depicting ho-
mosexual activities are shown by means of
coin - operated projection systems. Each
booth is continually supplied by defendants
with kleenex tissues and a wastepaper bas-
ket.
On July 25, 1978, the Sacramento County
District Attorney filed complaints for in-
junction and nuisance abatement under the
Red Light Abatement Law. (Pen. Code,
§ 11225, et seq.) I Attached to each com-
plaint are declarations by the vice officers
reporting instances of masturbation and
oral copulation observed by them through
openings (glory holes), in the partitions be-
tween certain of the booths. The officers
further reported invitations to them from
male patrons (the evidence does not suggest
the presence at any time of female patrons),
to share booths for the purpose of engaging
in homosexual activities, verbal and nonver-
bal invitations for the performance of sexu-
al acts through the partition openings, a
bulletin board near the entrances to the
booths upon which were pinned 3" X 5"
cards containing written solicitations by in-
dividuals for sexual acts including one ad-
vertisement for sexual services to be per-
formed outside the store, an instance of an
employee of defendants warning patrons
within the store of the potential presence of
a police officer, and an instance of posted
instructions on the outer side of a door of
one booth pertaining to the proper signal
for a specific form of sexual activity.
The superior court issued show cause or-
ders and temporary restraining orders abat-
ing the allowance of lewd behavior in both
locations. After review of declarations and
oral argument, it issued preliminary injunc-
1. Section 11225 provides: "Every building or
place used for the purpose of illegal gambling
as defined by state law or local ordinance.
lewdness. assignation. or prostitution. and ev-
ery building or place in or upon which acts of
illegal gambling as defined by state law or local
ordinance. lewdness. assignation, or prostitu-
tion. are held or occur. is a nuisance which
521
tions on August 11, 1978. Defendants were
enjoined from allowing acts of lewdness or
assignation on the premises and from re-
moving any furniture or equipment there-
from. They were also ordered to post con-
spicuous signs (1) prohibiting more than one
person in a booth at gMime, (2) prohibiting 106
loitering in the film arcade area, and (3)
containing the information that masturba-
tion is a lewd act, that lewdness, assigna-
tion and prostitution are prohibited on the
premises, and that a violation of any prohi-
bition may result in criminal prosecution
under Penal Code sections 647, subdivision
(a) (lewd or dissolute conduct), or 314, sub-
division 1 (indecent exposure). Defendants
were ordered to close all openings in the
partitions, to provide employee patrols, to
prohibit warnings of police presence, to re-
move tissue boxes and wastepaper baskets
from the booths, to provide higher levels of
lighting in the hallway outside the booths,
to modify the booth doors (upon which the
films are projected) by replacing them with
pulldown screens or "dutch door" type clos-
ings with openings for inspection, and to
remove inside locks.
Defendants' appeal is premised upon
recent California Supreme Court decisions
defining lewd conduct (Pryor v. Municipal
Court (1979) 25 CaI.3d 238, 158 Ca1.Rptr.
330, 599 P.2d 636; In re Anders (1979) 25
Cal.3d 414, 158 Cal.Rptr. 661, 599 P.2d
1364), and on the contention that oompli-
ance with the order to modify the booth
doors amounts to a prior restraint on their
freedom of speech and a violation of abate -
ment statute procedures because it will
force closure of the stores. The contentions
are without merit.
[1-4] Initially we consider the standard
of review of a preliminary injunction as
shall be enjoined. abated and prevented. wheth-
er it is a public or private nuisance. 14] Noth-
ing in this section shall be construed to apply
the definition of a nuisance to a private resi-
dence where illegal gambling is conducted on
an intermittent basis and without the purpose
of producing profit for the owner or occupier of
the premises."
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