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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 0 wb \resol \adult.res -5- r r 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 R(\ t31 ^_ - 1 1 - 0-1 1:3-31N 1 602 7;11 56(18 -+ RI TA\ & TICKER. 01. MM Gi lA✓ $ 1 C�LWOIL ��MCETI P��1) E7S�[>SBIT N0. 1 PnlicP X020randum dated May 1, 1990 • • EQ 071j�- 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 • • 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." s i i i i is .II � il. 1 1 [i 1 e rnZd &oE°mh c -. !r{'�Y :'SEE• ° �H�s>. iO•�oEma•O^ � u 0 C7 cs $ kU �' u1°• M. T.r ^m '� d 10U d 6`n E N E S� o ° ^J,°° m a.r-. -0 i'$,s�SE C^y>+:Od. ^d,�daoE ami'apd;; .N.F��P.p m°rm 3y h.:. •en, pEp O 'aU ^ •.o m �:o m°mmm� o c d C m u g�5a 6 cm°Z: � M Frm � O' ✓Td .,-,,r qU G o W-0 Cu 7y P.'m:: mmma�im s,odm EN c dyE ry �'mN m�'m 5`�j 1.S , d° p+°�ky °EENO' ^e�•kc5�or°�pp, 9 - moo c...,0., °c, m,e �S'Ss dcsra�v w�E�md;� =°Em= '0 S� eP.r 0.S 0.aoc4 d c5d3� E° ^c °d 3md cTaiG �.Vai N UmE-c mm,vg o a Q m°m m o `d E. 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