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Playtime Theaters Court Case (1982 - Vol 1)
ATTORNEYS AT LAW JACK R. BURNS OF COUNSEL DAVID R.MEYER Hubbard, Burns & Meyer JAMES R. HUBBARD GLENNA BRADLEY-HOUSE A PROFESSIONAL SERVICE CORPORATION February 17, 1982 Daniel Kellogg - Warren & Kellogg, P. S. P.O. Box 626 Renton, Washington 98057 Re : Playtime Theatres Inc . , et al. vs . City of Renton et al . Cause No. C82-59M Dear Mr. Kellogg: This will confirm that plaintiffs ' Motion for a Prelimi- nary Injunction will be heard before Magistrate Sweigert on. March 19, 1982, beginning at 9 : 30 a.m. Very truly yours , • ) ,?1LL�-� Jack R. Burns JRB :nr cc Magistrate Sweigert Clerk of the Court RECEIVED FEB 1 8 1962 Yarrow Bay Office 10604 N.E. 38th Place, Suite 105 • Kirkland, Washington 98033 • (206) 828-3636 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW LAWRENCE J. WARREN 100 SOUTH SECOND STREET TELEPHONE DANIEL KELLOGG (206) 255-867B POST OFFICE BOX 626 MARK E. BARBER RENTON, WASHINGTON 98057 DAVID M, DEAN 2 A N ETT A L. FO N T E S November 4, 1983 , "'"'""'''^-- MARTHA A. FRENCH R kci'10 V 7 1983 t cnr-v or Honorable Nancy Ann Holman, Judge King County Superior Court W-864 King County Court House Seattle, Washington 98104 Re : City of Renton, et al. , v. Playtime Theatres , Inc. , et al . Dear Judge Holman: This will confirm that we have received word from your Bailiff that the trial of this matter will resume on January 9 , 1984. We have retained certain expert witnesses who we may call in rebuttal of the evidence which we anticipate the defense will present in their case in chief. The Defendants have now requested that we make our experts available for deposition. We have agreed to do so as soon as our experts have reviewed the films and depositions of the Defendants' expert witnesses . These depositions will of necessity involve all of the elements of obscenity unless the Court should now enter a ruling limiting the construction of the ordinance to require only a showing of "prurient appeal" rather than "obscenity" . We believe that substantial economy in judicial time as well as trial preparation can be effected by a ruling on the following three issues at this time : 1. Whether this case will be tried on an obscenity standard or simply on an appeal to prurient interest. 2. The definition of appeal to prurient interest. 3. A ruling on our Motion for Partial Summary Judgment concerning a continuing course of conduct of exhibiting "specified sexual activities" and "specified anatomical areas" . i • It has been our experience that the depositions of Defendants' experts have been substantially confused by the uncertainty of the definition which the Court will use in its instructions and its ultimate decision. For this reason, we are presuming upon the Court to make this request. We are also enclosing for your consideration a supplemental brief arguing the distinction between "pruriency" and "obscenity" as codified in Washington law. Also please find enclosed Plaintiffs ' Proposed Supplemental and Amended Jury Instructions. Very truly yours , Lawrence J. Warren LJW:bjm Enc. cc: Jack Burns James Clancy Mayor eoF R4,4 PoerCa221 C lE 0 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON �i z POST OFFICE SOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-6670 0 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0i9 0� November 1 , 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY �9T fO SEPS � ZANETTA L. FONTES, ASSISTANT CITY ATTORNEY MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY TO : MAYOR BARBARA SHINPOCH FROM: Lawrence J . Warren, City Attorney RE: Playtime Theatres , Inc. v. The Honorable Kenneth Eikenberry, et al . We have now received and are enclosing for your review the decision of Judge McNichols from the United States District Court for the Eastern District of Washington. You will recall that Playtime Theatres sought an injunction against the City of Renton from seeking to enforce the provisions of Initiative 335 (RCW 7 . 48 . 050- . 100) and House Bill 626 (RCW Chapter 7 . 48A) , both of which statutes are designed to provide a remedy against moral nuisances . In sum, the court has granted the relief requested by Playtime Theatres , although a finding of contempt was denied due to the Court' s finding that our position was "colorable" , i. e. , asserted in good faith based upon a reasonable proposition. The effect of this ruling is that we are precluded from attempting to enforce the provisions of Initiative 335 in any respect unless we seek a declaratory judgment at the state court to narrow the act and avoid the provisions which have been found to be unconstitutional. This we are not inclined to do. We are restrained from seeking any remedies under the provisions of House Bill 626 as long as the Ninth Circuit ' s injunction is in effect restraining enforcement under the statute pending appeal . Of course, we are similarly entitled to seek a declaratory judgment regarding this act also . However, we are not inclined to do so. Ft1)1 " 11v�1 _3L Mayor Barbara Shinpoch November 1, 1983 Page 2 The effect of these rulings is minimal. Our efforts to extract penalties from Playtime Theatres under these two statutes have been held in abeyance by stipulation of both counsel . Now the provisions of our action relating to Initiative 335 will no doubt be stricken. The provisions of the complaint relating to House Bill 626 will no doubt continue to be stayed pending the outcome of the appeal in the Ninth Circuit of Judge McNichols ' rulings which found the act to be unconstitutional . In any event our enforcement action to abate the public nuisance under our zoning ordinance remains unaffected and our efforts to succeed in that vein shall continue. For your information, it appears that trial of our ordinance enforcement action will now recommence on January 9 , 1984. The Judge is unavailable until December 12 , 1983 . Counsel for the defense could not commence the trial until December 15 . To commence the trial at that point would cause great disruption of the presentation of the case because of the holidays . For that reason we are anticipating commencement of the trial on January 9 , 1984. Lawrence J. Warren LJW:bjm Enc. cc : City Clerk Members of City Council ti „ OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON U 4$ • Z POST OFFICE EOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 Z sal0MEM LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY .0 DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0,9gTEO SEF�E�O�Q MARK E. BARBER, ASSISTANT CITY ATTORNEY June 27 , 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO: Barbara Y. Shinpoch, Mayor Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney RE: City of Renton v. Playtime Theatres , Inc. Dear Madam Mayor and Members of the Council : This is to supplement our previous Memo regarding the above captioned matter . Judge Ishikawa denied Playtime ' s motions to dismiss our Complaint . We are proceeding to prepare for the matter of the Preliminary Injunction on July 11 , 1983 . Daniel ellogg DK:nd cc : City Clerk Dave Clemens OF RA, OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON O u `/ POST OFFICE eox 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 " p LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 90 (r)' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 94��D S�P���tO�P MARK E. BARBER, ASSISTANT CITY ATTORNEY June 24 , 1983 ZANETTA L. FONTES, ASSISTANT CITY ATTORNEY TO: Barbara Y. Shinpoch, Mayor Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney Re: City of Renton vs . Playtime Theatres , Inc. Dear. Madam Mayor and Members of the Council: We wish to inform you of the events which have transpired since Mr. Warren' s Memorandum of June 15 , 1983 . You will recall that Mr. Warren informed you that the 9th Circuit Court of Appeals denied Playtime ' s application for a stay of the effectiveness of Judge McGovern' s decision in our favor pending the disposition of their appeal from that decision. This is of extreme importance to us because it leaves us in a position to continue our State Court enforcement action . At the hearing in Federal Court on June 16 , 1983, on our Motion to Remand the case back to State Court , we were very pleased that Judge Coughenour adopted the arguments which we made and found that the Federal Court was without jurisdiction to retain jurisdiction of the State case which had been removed. Therefore, he ordered that the case be remanded to the State Court . We immediately re-noted our Motion for Preliminary Injunction for July 11 , 1983 . This will be the commencement of the trial of the issue between ourselves and Playtime , whether they are , in fact , violating our ordinance and are a nuisance which must be abated. It is necessary to re-note this matter because the removal of the State case to Federal court had frustrated our ability to proceed to trial at the hearing previously scheduled in the State Court on June 13, 1983. By way of interest , Playtime has filed Motions to Dismiss our State Court case , claiming two different grounds : First , that our cause of action requesting a Declaratory Judgment does not present a justiciable issue in that they claim it is a request for an advisory opinion to a legislative body. If this were so , our Mayor and Members of Renton City Council Page 2 June 24, 1983 first cause of action would be dismissed. However, we strongly believe that our first cause of action, which requests a declara- tion by the Court that our ordinance is constitutional and that the actual use of the property by Playtime as an adult motion picture theater is in violation of the terms of our ordinance . Therefore, this is not an advisory opinion on hypothetical facts . The second ground for motion to dismiss is an attack upon Initiative 335 (RCW 7 . 48) . This attack is presently much more difficult for us . When we met with the Council to discuss our plan of attack, we indicated that we would rely upon several alternative theories to be sure that our chance of prevailing is maximized. We have also understood that our reliance upon Initiative 335 was tenuous because of prior holdings by Federal and State courts that this action is unconstitutional . We have plead the action in an attempt to give the Appellate courts another opportunity to construe this legislation in a constitutional fashion . But we understand that the trial court may well strike our reliance upon this law. This hearing will be held on Monday, June 27 , 1983, before Judge Ishikawa in the King County Superior Court. We have also noted the deposition of Playtime Theaters and certain of its employees for Friday, July 1, 1983, in order to discover the location of the films which have been subpoenaed and certain other information which we deem material to the presentation of our nuisance abatement evidence. Also , we are continuing to subpoena theater employees to bring to the trial on July 11 , 1983, the films which have been exhibited since the filing of our amended complaint . The evidentiary pro- blems at that hearing will be enormous in view of the gap in our ability to subpoena evidence which was caused by the removal of our case to Federal Court the second time. We are enclosing to the Mayor, Clerk, and Dave Clemens copies of the pleadings which we have prepared in opposition to the Motion to Dismiss . I trust that if there is an interest in reviewing those pleadings that you can contact either the Mayor or the Clerk' s office. Please feel free to contact our office if you have any questions . Daniel Kellogg DK:kh Encl . 3 cc: Clerk Dave Clemens � l OF R E4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON O r. o v `o ,f 'z POST OFFICE BOX 626 100 S 2nd STREET I RENTON. WASHINGTON 98057 255-867B Z � O O LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY gp `O DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0gTED SEP� °'?'P June 13, 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY ZANETTA L. FONTES, ASSISTANT CITY ATTORNEY TO: BARBARA SHINPOCH, MAYOR MEMBERS OF CITY COUNCIL FROM: Daniel Kellogg, Assistant City Attorney RE: City of Renton, et al. , v. Playtime Theatres , Inc. , et al . It has been sometime since we have brought you up to date regarding developments which have been occurring fast and furiously in our ongoing litigation with Mr. Forbes . As you know, pursuant to the resolution adopted by the Council , we filed in the King County Superior Court an Amended Colaint on May 19 , 1983 requesting the Court to find that the Renton Theater is a public nuisance in violation of our ordinances , and requesting certain other relief under State law to obtain recovery of our attorney' s fees and other costs of abatement of this public nuisance. On that same date we filed a Motion for a preliminary and permanent injunction which was noted for hearing on June 13, 1983. The object of the preliminary injunction was to restrain the defendants from use of the Renton Theater as an adult motion picture theater in violation of our zoning code pending the trial. We also requested that the hearing on the permanent injunction be accelerated and consolidated with the hearing on the preliminary injunction. If granted this would resolve the entire matter at a very early date. Along with the Amended Complaint we served a Notice of Deposition and Supoena Duces Tecum on Playtime Theatres , Inc. requiring the corporation to designate an individual to appear at our offices on June 2 , 1983 to testify concerning certain matters, including the identity of the distributors of the motion picture films so that we could subpoena the distributor if possible for the hearing set on the Motion for Preliminary Injunction. Mayor & Members of Council June 13, 1983 Page 2 On May 19 and 25 , 1983 we served Subpoenae Duces Tecum on the Manager and/or Projectionist of the Renton Theater requiring them to appear at the hearing on June 13, 1983 and to bring with them the four specific films which were then being exhibited at the Renton Theater. On May 26 , 1983, a Subpoena Duces Tecum was served upon Playtime Theatres Inc. requiring it to bring to the preliminary injunction hearing twenty-eight (28) films described in the subpoena if the films were in their possession or control. Mr. Forbes ' attorney advised our office on June 1, 1983 that the corporation would not appear at the deposition set for the next day. In fact, they did fail to appear. In the meantime , Mr. Forbes ' attorney, on May 20, 1983, filed in the 9th Circuit Court of Appeals their Application for Stay or Alternatively Injunction Pending Appeal. The effect of this application was to request the 9th Circuit to restrain the enforcibility of our ordinance pending the outcome of the appeal of Judge McGovern' s order, notwith- standing the fact that we had prevailed and Judge McGovern had found our ordinance to be constitutional . On May 31 , 1983 we served our response to their Application for Stay. An extra copy of that response is enclosed to the Mayor and City Clerk should any be interested in reviewing this document . Our response arguedthat the request for stay should be denied since the facts as found by Judge McGovern were binding upon appeal and therefore the appellants are not likely to prevail . Furthermore, our substantial governmental interest and the interest of the public in the enforcement and integrity of the Zoning Code weighed heavily against granting the stay pending appeal merely upon an allegation of First Amendment infringe- ment which had been overruled in the District Court . We argued that our ordinance was valid under Young vs . American Mini Theaters and that the stay or injunction application must be denied. Playtime Theatre, Inc. ' s application for stay is pending before the panel of the Court of Appeals in San Francisco and could be decided at any moment. If the decision is to grant the stay, then the enforcement action which we have commenced would of necessity be stayed because the validity of our ordinance is in doubt . We view the likelihood of the stay being granted as being quite good. When the United States District Court in Spokane upheld the constitutionality of House Bill 626 (RCW 7. 48A re: Moral Nuisance) the District Court and the Court of Appeals both granted stays against the State of Washington and the other defendants in that action. Mayor &Members of Council June 13, 1983 Page 3 Meanwhile, our office was busy preparing for the preliminary injunction hearing on June 13, 1983 and working on means to compel the deposition of Playtime. On June 3, 1983, Mr. Forbes ' attorney filed a Petition for Removal of the proceedings in the King County Superior Court. This petition was nearly identical to the petition filed over a year ago by which our original State Court action was removed to Federal Court. As you will recall, the issue of the Petition for Removal is to oust the Superior Court of jurisdiction to take further proceedings and the entire cause of action is transferred to Federal Court for resolution. This petition was filed without notice to our office. Mr. Forbes ' attorney knew when they filed their removal petition that there was no Federal Court jurisdiction to support the removal petition. This issue was decided earlier this year when Magistrate Sweigert recommended and Judge McGovern ordered that our State case, which had been previously removed, should be remanded back to the Superior Court. In our judgment , the sole objective of this removal action was to disrupt our preparation for the hearing set on June 13, 1983. In this they were very successful. Since we could not stipulate to Federal jurisdiction, we lost the June 13, 1983 hearing date. Further- more, substantial dispute over the validity and enforcibility of the State Court subpoenas now exists because of the fact that they were returnable to a State Court proceeding which has been removed and the hearing stricken. Although we know that the four specific movies were in the custody and control of the theater personnel on the dates on which the subpoenas were served, we have every reason to believe that the personnel under subpoena will not retain the films once the subpoenas expire. In all likelihood, the individuals personally under subpoena probably were informed by Mr. Burns that they need not comply with our subpoenas anyway. Furthermore, once the State case was removed, we could no longer issue State court subpoenas to compel the delivery to court of the two films which were shown through last Thursday. In addition, since there was no hearing set in the Federal court, we could not obtain the issuance of a Federal Court Subpoena by the Clerk to compel the preservation of the two films shown last week at a time when we would know that the films were in the possession of the Manager or Projectionist. Mayor & Members of Council June 13, 1983 Page 4 As you can see, the Petition for Revmoval and slow pace of the Federal Court' s review of the Petition have substantially disrupted our State Court proceeding. We immediately began highly concentrated effort to compel the Federal Court to remand our case back to State Court and to award terms in the fotiu of attorney' s fees for the necessity of this second remand proceeding. Pleadings in support of our motion for remand and an expedited hearing thereof were served and filed on Wednesday, June 8, 1983. We had requested a hearing on our Motion for Remand before Judge Coughenour on Friday, June 10, 1983. The Court refused to grant this hearing on the merits but scheduled a status conference for 8 : 30 A.M. that morning to consider the issues of interim relief to protect the evidence which we had subpoenaed in the State Court action. On Friday, Judge Coughenour set a hearing on our Motion for Remand for June 16, 1983 at 4: 00 P.M. This is extraordinarily prompt for a hearing of this type. Judge Coughenour further ordered that the City could obtain the issuance of subpoenas to protect the evidence under subpoena in the State action. The effectiveness of these subpoenas will be hotly contested by Mr. Burns . However, he made several very damaging admissions on the record. On the whole we view the hearing to have been a limited success . At least we have done everything within our power to reserve the jurisdiction of some court to hold on to the evidence while it is in the possession of Playtime in order to support our case that the films being exhibited are a public nuisance and in violation of our ordinances . To add insult to injury, Mr. Burns has filed a Motion for Change of Venue from the Western District of Washington to the Eastern District of Washington. This request is totally without merit and we believe it will be promptly dismissed by the District Court even if the District Court declines to remand our case. I mention this Motion for Change of Venue only to underscore the extent to which our opponent is apparently willing to stoop in order to attempt to keep us off balance and to frustrate our nuisance abatement proceedings which must be very discouraging to them. We have every reason to believe that if we can ever get this matter before a Judge on the merits that we will prevail with a finding that this land use is a nuisance and should be abated. Mayor & Council Members June 13, 1983 Page 5 In summary, our Motion for Remand to move our State Court case back to the King County Superior Court will be heard before Judge Coughenour on June 16, 1983 at 4: 00 P.M. Immediately upon issuance of the remand, we will set the preliminary injunction hearing for the earliest possible date. The appeal proceedings from Judge McGovern' s order to the 9th Circuit Court of Appeals are proceeding. We are awaiting a decision regarding Plaintiffs ' application for a stay or injunction pending appeal. We understand that this is extremely complicated. This report , though much too lengthy, merely hits the high points of the efforts which we have expended in an attempt to prosecute our nuisance abatement action in a competent and expeditious fashion and to overcome the procedural obstacles which are constantly being thrown in our path. We would invite inquiries from parties desiring further information. Very truly yours , • Daniel Kellogg DK:bjm Enc . cc: City Clerk David Clemens /o / I " O ' OF R4,4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON © POST OFFICE BOX 626 100 S 2nd STREET • RENTON, WASHINGTON 98057 255-8678 0 LAWRENCE "WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9.Q `O DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0,S) MARK E. BARBER, ASSISTANT CITY ATTORNEY May 23, 1983 ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO : Barbara Y. Shinpoch, Mayor Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney RE : Playtime Theatre We want to report to you regarding developments during the past week with regard to the litigation between the City of Renton and Playtime Theatre, Inc . STATE COURT ACTION On Thursday, May 19, 1983 , we filed in King County Superior Court our First Amended and Supplemental Complaint requesting a declara- tion that the operations of the Renton Theater are in violation of our zoning ordinances and requesting further relief to the nuisance abatement laws , requesting recovery of attorney' s fees and costs of abatement. With the Amended Complaint , we filed our Motion for a Preliminary Injunction which motion will be heard on June 13, 1983 . We also filed our request to advance our Request for a Permanent Injunction to bring that matter on for hearing at the same time as the Motion for Preliminary Injunction. .We expect that the Court will favorably consider our request and postpone the June 13th hearing for a short period of time to give the other side an opportunity to be prepared for the final injunction hearing sometime later that month or early July. On Thursday May 10 , 1983 , an investigator from the Police Department , after witnessing the content of the two films being shown at the Renton Theater, served upon the Manager/Projectionist a copy of the Summons and Amended and Supplemental Complaint , naming the Manager as a party defendant to the litigation. He was also served with a subpoena duces tecum requiring him to retain in his possession the two films then being shown and to bring them to the Preliminary Injuction Hearing scheduled on June 13th to be exhibited to the Court . Barbara Y. Shinpoch, Mayor Members of Renton City Council Page 2 May 23 , 1983 FEDERAL COURT ACTION As you are aware , following Judge McGovern' s ruling in our favor, Mr. Forbes ' attorneys requested Judge McGovern to amend his order to stay the affectiveness of his order pending review of this matter by the Ninth Circuit Court of Appeals . Judge McGovern denied their Motion for a stay. When Mr. Forbes ' appealed_from Judge McGovern' s ruling, he did not immediately request the Ninth Circuit for a stay of the effect of Judge McGovern' s ruling as we might have expected. Therefore , it became clear to us that he intended to continue operations in disregard of Judge McGovern' s order until the City of Renton took affirmative action to enforce our zoning code. When the news of our intended action to close the theater was broadcast last Tuesday, Mr. Forbes ' attorneys immediately prepared to request the Ninth Circuit for a stay of Judge McGovern' s order. Their pleadings were filed in San Francisco on Thursday and a copy served on our office on Friday. The Motion to stay the order of Judge McGovern raises serious questions which our office will address very specifically and very fully in an effort to resist the- entry of a restraint which would allow Mr. Forbes to continue operation during the pendency of this appeal . However, because of the fact that the preliminary injunction was entered in the District Court which allowed Mr. Forbes to operate , and taken together with the general philo- sophical trend of the Ninth Circuit , the stay may very well be granted. If so , then we will not be able to rely upon Judge McGovern' s declaration that the ordinance is constitutional . In the meantime , Mr. Forbes ' appeal from Judge McGovern' s ruling is now docketed and we will be proceeding through the normal appellate process which will take many months . CONCLUSION Please feel free to contact our office with any questions which you may have. • Daniel Kellogg DK:nd cc : City Clerk Dave Clemens &_.1.tif ULU-kJ OF R4,4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON v �i z POST OFFICE BOX 626 100 S 2nd STREET • RENTON.wASMINGTON 98057 255-8678 W �O winoLAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9A �� May 19 , 1983 DAVID M. DEAN, ASSISTANT CITY ATTORNEY O�gTFO SEPtet°� MARK E. BARBER, ASSISTANT CITY ATTORNEY ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY Mr. Jack Burns MAY 2 Attorney at Law 10940 N. E. 33rd P1. Suite 107 LJ Bellevue, Washington 98004 CITY CLERK Re: City of Renton v. Playtime Theatres , Inc. , et al. , King County Cause No. 82-2-02344-2 Dear Jack: We enclose the following pleadings for service upon you in the above-entitled matter: 1. Amended Summons and First Amended Supplemental Complaint 2. Motion and Affidavit for Association of Co-counsel 3. Order Permitting Association of Co-Counsel 4. Lis Pendens 5. Note for Motion Docket before Presiding Department 6. Motion for Preliminary Injunction to Advance and Consolidate Hearing on Preliminary Injunction with Permanent Injunction and for Permanent Injunction 7 . Notice of Deposition of Roger Forbes and Subpoena Duces Tecum for Deposition of Roger Forbes 8. Notice of Deposition of Playtime Theatres , Inc. (including request upon the corporation pursuant to CR 30(b) (6) to designate an officer to testify concerning the designated matters) and Subpoena Duces Tecum for Playtime Theatres , Inc. 9 . Subpoena Duces Tecum (2) for manager and other persons in charge and projectionist of the Renton Theater to deliver the two designated films at the hearing scheduled for June 13, 1983 . We have also enclosed an Acceptance of Service for service of the Amended Summons and First Amended and Supplemental Complaint, together with the Notice of Deposition and Subpoena Duces Tecum directed to Roger Forbes and his wife. If you are authorized to accept service of these pleadings we would appreciate return of the original Acceptance of Service by return mail . Otherwise, we will at once obtain service on Mr. Forbes to join him as a defendant and will require his attendance at the deposition scheduled. Very truly yours , Daniel Kellogg DK:bjm Enc. cc: Mayor Council President City Clerk James Clancy 4111, WARREN & KELLOGG, P.S. ATTORNEYS AT LAW LAWRENCE J. WARREN 100 SOUTH SECOND STREET TELEPHONE DANIEL KELLOGG (206) 255-8678 POST OFFICE BOX 626 MARK E. BARBER RENTON. WASHINGTON 98057 February 23, 1982 Mr . James J. Clancy Attorney at Law 9055 La Tuna Canyon Road Sun Valley, California 91352 Re: City of Renton - Forbes Dear Jim: I enclose a copy of the Real Estate Contract dated January 26, 1982 between Robert B. McRae and wife and Kukio Bay Properties , Inc . This is a standard real estate contract used in the State of Washington and, on its face, does not give reason to believe that this sale is conditional . You will notice that the purchase price is $800, 000 . 00 . Mr . Forbes paid $32, 500 . 00 down and will pay the sum of $90, 000. 00, together with 187 interest in six monthly payments of $15, 797 . 27 commencing on February 26, 1982 . The balance of the purchase price will be paid in monthly installments of $9, 720. 16 commencing on February 26, 1982 , with a balloon payment ten years and thirty days after the date of closing . That contract bears interest at the rate of 12% per annum. I notice in paragraph 9 of the contract that the purchaser agrees not to permit the use of the real estate for any illegal purpose. This is a part of the standard 1964A form which is very widely used here in the State of Washington. I doubt that this was especially negotiated for the purpose of making this transaction conditional. In any event, the seller would be free to waive the breach of covenant and Mr. Forbes could hardly contend that he is excused from performance on the basis that he is using the property for an illegal purpose. OF R4,4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON A. O v < POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 Z p LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9A CO' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0qT �0 February 18, 1983 MARK E. BARBER, ASSISTANT CITY ATTORNEY Fp SEPIE ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY TO: Barbara Y. Shinpoch, Mayor Members of the City Council FROM: Lawrence J. Warren, City Attorney RE: Playtime v. City of Renton We are pleased to enclose a copy of the decision entered this date by Judge McGovern in the above matter. This decision denied Playtime' s request for permanent injunctive relief against the enforcement of the ordinance, and granted the City' s motion for suuunary judgment that the ordinance is constitutional. The basis of the Court ' s ruling is Judge McGovern' s finding at page 7, line 9, that: . . . there is not a substantial intrusion upon first amendment interests . Plaintiffs are not virtually excluded from Renton by being confined to the 'most unattractive, inaccessible, and inconvenient' areas . . . .Renton' s exhibits, affidavits , memoranda, and oral argument persuade the Court that acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss-crossed by freeways , highways , and roads cannot be so characterized. . . . Ample , accessible real estate is available for the location of adult theatres in Renton. " Therefore, finding no substantial impact upon the free exp- ression of protected speech, the Court upheld the ordinance. TheCourt refused to abstain, it appearing that the Court wished to dispose of this matter on the merits . Under the circumstances , we are pleased with the favorable outcome , although as a matter of principle we would prefer that the federal district court refuse to interfere with matters of such great interest to the State. Barbara Y. Shinpoch, Mayor Members of the City Council February 18, 1983 Page two We have received some indication that Mr. Forbes ' intends to continue with his exhibition of pornographic films in violation of our ordinance despite today' s ruling by Judge McGovern. Of course, this is a matter of grave concern to our office. For public comment we are assuming that he will adhere to the ordinance just as he did before the entry of the Preliminary Injunction last month. However, if he does in fact continue to exhibit films in violation of our ord- inance , we will bring a recommendation to the City Council for an appropriate course of action to force compliance with the ordinance which has been found to be valid. We should anticipate that Mr. Forbes ' will immediately file a Notice of Appeal from this decision to the Court of Appeals in San Fransisco. He will almost surely request that Court to enter an order restraining the enforcement of our ordinance pending completion of that review. We will keep each of you informed regarding these developments . This is a great day of victory for all of us . We are greatly pleased with the outcome. However, we are bearing in mind that this journey is not yet completed. The findings of the Judge regarding the availability of suitable land for location of an adult theatre will be more difficult for the opposition to overcome than for us to uphold. However, the real time for celebration will be when the judgment is finally entered in favor of the City and the regulatory scheme established by its ordinance. Lawrence J. Warren City Attorney LJW:kh enc. cc : Clerk Dave Clemens OF R4,4 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON " POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON, WASHINGTON 98055 255-8678 LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY '90 am. DAVID M. DEAN, ASSISTANT CITY ATTORNEY O June 9 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY 9TE0 SEP1 TO: CITY COUNCIL MEMBERS FROM: Daniel Kellogg, Assistant City Attorney RE : Playtime Theatres vs City of Renton Enclosed please find the Answer to the Plaintiffs ' Supplemental Complaint which we have filed in the Federal Court . At the status conference which was held -ecently, Magistrate Sweigert ordered that our Motion for Summary Judgment (which is a request that the Court rule that as a matter of law our Ordinance is constitutional) will be held on the same date as the Plaintiffs ' Motion for Preliminary Injunction to restrain the enforcement of our Ordinance . That hearing is now set for June 23, 1982 , commencing at 1 : 30 P .M. Daniel Kellogg DK:nd Encl . cc : Mayor City Clerk Dave Clemens . 1, e-ee,_. OF R4,� . ' _OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON O U t$ Z *< POST OFFICE BOX 626 100 2nd AVENUE BUILDING I RENTON, WASHINGTON 98055 255-8678 44 . itb'.. LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 094 Q:O DAVID M. DEAN, ASSISTANT CITY ATTORNEY �9 e May 27 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY 1TEO SEPT .� TO: Barbara Y. Shinpoch, Mayor Members of Renton City Council FROM: Daniel Kellogg, Assistant City Attorney RE: Playtime Theatres vs City of Renton We wish to update you as to the status of the above mentioned litigation. As I am sure you are aware, Judge McGovern denied our Motion for Dismissal based uponour contention that the Federal Court lacked jurisdiction over the claim asserted by Mr. Forbes . We considered whether to appeal from this decision and have determined that an appeal of that issue should await the final outcome of the litigation since we can attack the jurisdiction of the Court at any time. The Court has set Mr. Forbes ' Motion for a Preliminary Injunction for hearing on June 23, 1982 at 1 :30 P .M. At that hearing, Mr. Forbes will be requesting that the Court enter an injunction pending the final outcome of the lawsuit restraining the City from enforcing the provisions of our Ordinance . This is the critical hearing and may be appealed by Mr. Forbes if he is unsuccessful . We are filing this date our Motion for Summary Judgment . A copy of the Affidavit which Mr. Clemens has submitted and our Memorandum of Law in Support of the Motion for Summary Judgment are enclosed for your review. This Motion places before the Court our contention that even if the Court has jurisdiction to consider granting the relief requested by Mr. Forbes , that the relief requested is contrary to law and therefore should be denied. Basically, Mr. Forbes is requesting a permanent injunction and declaratory judgment stating that our Ordinance is unconstitutional , with a second claim for damages for deprivation of his constitutional rights under Section 1983. It is our contention that the Ordinance is constitutional as a matter cf law and that there has been no infringement of Mr. Forbes ' constitutional rights . If the Court believes that there are no disputed facts , then the case may be decided upon a Motion for Mayor and Members of City Council Page 2 May 27, 1982 Summary Judgment and the Court may enter its ruling deciding which law to apply. This Motion for Summary Judgment will be heard at a time to be later set by the Court . It is our hope that the hearing will be set prior to the preliminary injunction hearing since a decision in our favor would do away with the necessity of the preliminary injunction hearing. In any event , we are proceeding with preparation of the evidence which will be presented at the preliminary injunction hearing. Mr. Warren, Mr. Barber and Mr. Clancy are continuing the deposition of Mr. Forbes this date. We anticipate this process to be protracted due to the intent of Mr. Forbes ' lawyers to frustrate our attempt to elicit information about Mr. Forbes ' organization and damages which he claims to have suffered. It may be necessary for us to seek assistance of the Court to require Mr. Forbes ' lawyers to abide by the rules of discovery as they are set forth in the Federal Rules of Civil Procedure. Please feel free to contact me if you have any further questions . Daniel Kellogg DK:nd Encl. cc: City Clerk Dave Clemens OF I A. .I OFFICE OF THE CITY ATTORNEY . RENTON,WASHINGTON U t$ ��'�� POST OFFICE BOX 626 100 2r,tl AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 mIL 00 IT LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 'Op Pco February 24, 1982 DAVID M. DEAN, ASSISTANT CITY ATTORNEY 4)4,F� O� MARK E. BARBER, ASSISTANT CITY ATTORNEY TO : RON NELSON, BUILDING DEPARTMENT FROM: Daniel Kellogg, Assistant City Attorney Dear Ron: We enclose a copy of the Notice of Deposition Upon Oral Examination which, in our response designates. Dave Clemens as the official of the City to be examined upon the matters set forth on page 2. I know that both of you would be able to do a fine job of responding on behalf of the City to the zoning and building requirements which they will be investigating . I would like for you to leave your schedule open to meet with us on the afternoon of March 3 and all of March 4 to assist Dave in any matters relating to the Building Code. You will note that the deposition is scheduled to be taken at Mr . Burns' office and we will arrange transportation prior to the deposition. Very truly yours , Daniel Kellogg DK:bjm Enc. cc: Mayor City Council City Clerk Dave Clemens TV I Mir" (e---Ux4c-) OF R4C./lt A. OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON V `/ z POST OFFICE BOX 626 100 2n0 AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 00 "' LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9O CO* February 23 1982 DAVID M. DEAN, ASSISTANT CIT+ ATTORNEY 09gTFD SEP�°�O MARK E. BARBER, ASSISTANT CITY ATTORNEY TO: BARBARA Y. SHINPOCH MEMBERS OF CITY COUNCIL DAVID CLEMENS FROM: Daniel Kellogg, Assistant City Attorney RE: Playtime Theatres , Inc . We are informed by Judge McGovern' s Chambers this afternoon that he has entered an Order this date denying the temporary restraining order requested by Forbes and approving the report of Magistrate Sweigert. This means that the City has won "Round 1" . We are enclosing under this cover copies of the pleadings which we have filed in Federal Court relating to our Motion to Dismiss which will be heard on March 12, 1982 . Ver yours , Daniel Kellogg DK:bjm Enc . / cc: City Clerk // WARREN & KELLOGG, P.S. ATTORNEYS AT LAW (*�rR 2 .y^^r(/�' LAWRENCE J. WARREN 100 SOUTH SECOND STREET 1 L.✓ {14J{xJ T'ELEPHONE DANIEL KELLOGG 1206)) 255-8678 POST OFFICE BOX 626 MARK E. BARBER RENTON. WASHINGTON 98057 dVAL I CK ' . IV:CUO • L.1<1 February 22, 1982 U. S. DISTRICT JUDGE Honorable Walter T. McGovern, Judge United States District Court 710 United States Court House Seattle, Washington 98101 RECEIVED Honorable Philip K. Sweigert, Magistrate United States District Court firs 304 United States Court House Seattle, Washington 98101 PHILIP K. Sw 1(TRT U.S. MAC1ST 4ATF Re: Playtime Theatres, Inc. , et al vs . City of Renton, et al C82-59M Gentlemen: Under this cover we are enclosing copies to each of you the following documents : 1. Documents in relation to Motion to Dismiss : a. Notice of Motion to Dismiss b. Motion to Dismiss Complaint Pursuant to F.R.C.P. 12(b) (1) and 12 (b) (6) . c. Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss Complaint. 2. Documents relating to setting of Motion to Dismiss before District Court Judge: a. Notice of Motion for Hearing Motion to Dismiss Before District Court Judge. b. Defendants Motion for Hearing Motion to Dismiss Complaint Before District Court Judge. c. Order to Hear Motion to Dismiss Complaint Before District Court Judge. 3 . Documents relating to Application for Permission to Participate: a. Notice of Application for Permission to Participate b. Application for Permission to allow James J . Clancy to participate as counsel. c. Order granting leave to participate. We are given to understand that dispositive motions herein have been referred to U. S . Magistrate Philip K. Sweigert by ex parte order entered herein prior to our appearance. It is our desire that the motion to dismiss pursuant to F.R.C .P. 12(b) (1) and (6) be heard by Judge McGovern. However, we are taking the precaution of furnishing both Magistrate Sweigert and Judge McGovern with copies of our motions and we will confirm with your offices regarding the setting of these motions . Please contact the undersigned or Mark E. Barber of our offices , if there are any questions relating to this matter. Ve my yours • Daniel Kellogg ,/ DK:bjm Enc. cc: Jack R. Burns Clerk of Court, U. S. District Court WARREN & KELLOGG, P.S. ATTORNEYS AT LAW LAWRENCE J. WARREN 100 SOUTH SECOND STREET TELEPHONE DANIEL KELLOGG POST OFFICE BOX 626 1206) 255-B67B MARK E. BARBER RENTON, WASHINGTON 98057 February 22, 1982 Mr. Jack R. Burns Attorney at Law 10604 N. E. 38th Place, Suite 105 Kirkland, Washington 98033 _ Re: Playtime Theatres, Inc. , et al vs . City of Renton, et al Dear Jack: We enclose copies of the documents set forth in the enclosed Certificate of Service which have been filed with the federal court this date. We also enclose to you a copy of the Summons and Complaint which we have filed in King County Superior Court against Playtime and Kukio Bay. We are attempting to obtain personal service of these documents upon Mr. Forbes . If you are in position to acknowledge service of the Summons and Complaint, please contact me and foward your acknowledgement to us for filing . We also would request that you advise our office if you are willing to stipulate to the admission of Mr. Clancy as associate counsel for us in the State and Federal actions . If so, we will prepare an appropriate Stipulation for signature by all parties. Very truly yours, Daniel Kellogg DK:bjm Enc. OF �� 7 o THE CITY OF RENTON U ®� MUNICIPAL BUILDING 200 MILL AVE. SO. RENTON,WASH. 98055 noal BARBARA Y. SHINPOCH, MAYOR • DELORES A. MEAD D90 (0' CITY CLERK • (206) 235-2500 09..q7 SEPj00 February 17, 1982 TO: Daniel Kellogg, Asst. City Attorney FROM: City Clerk's Office RE: Playtime Theatres, Inc. vs City of Renton Your letter of 2/8/82 requesting documentation re Ordinance No. 3526 Enclosed please find the following copies: 1 . Letter of 5/22/80 from Mayor Shinpoch to Council President Trimm. 2. Council Minutes 6/23/80 referring subject of adult bookstores , films , etc. to the Planning and Development Committee. 3. Council Minutes 9/8/80; Planning and Development Committee referring adult entertainment land use matter to the Planning Commission. 4. Notes of G. Y. Ericksen, former Planning Director re Special Study. 5. Notes of Planning Commission committee re plan of action. 6. Renton Planning Commission Meeting Minutes 9/10/80 re regulation of adult entertainment land uses. 7. City Council Minutes 10/13/80 adopting Resolution #2368 declaring 120 day moratorium on licensing of businesses selling/showing sexually ex- plicit materials. 8. Copy of Resolution #2368. 9. Planning Commission report of Special Studies Committee. 10. Letter of 11/24/80 from Renton Planning Commission re adult entertain- ment land uses. 11 . Agenda bill 12/1/80 presenting Planning Commission letter to Council . 12. City Council Minutes 12/1/80 referring Planning Commission letter and subject of adult entertainment land uses back to the Planning and Develop- ment Committee. 13. Letter of 12/3/80 from Mayor Barbara Shinpoch to Planning Commission. 14. Council Minutes 2/9/81 Planning and Development Committee rescheduled meeting for meeting with public. 15. Planning and Development Committee Notice of Public Meeting 2/10/81 for 3/5/81 meeting. 16. Asst. City Attorney letter 3/24/81 . 17. Planning and Development Committee Report 4/6/81 re adult entertainment land use. 18. City Council Minutes 4/6/81 adopting committee report and first reading of land use ordinance. 19. Letter from City Attorney 4/8/81 requesting environmental review. 20. Council Minutes 4/13/81 adoption of Ordinance #3526. 21 . Ordinance #3526 relating to land use and zoning for adult motion picture theaters. 2/17/82 To: Daniel Kel logy, ,\sst, City Attorney 22. Environmental Review Committee Agenda 4/15/81 . 23. Environmental Checklist No. ECF 038-81 . 24. Environmental Checklist Review Sheets from City Departments: (5) 25. Final Declaration of Non-Significance ECF 038-81 . 26, Notice of Environmental Declaration ECF 038-81 . If we can be of any further assistance, please do not hesitate to contact this office. Delores A, Mead, C.M.C. City Clerk PS: Also enclosed is tape of City Council Meetings of 4/6/82 and 4/l3/82 with excerpts for adoption of Planning and Development Committee Report, first reading of ordinance and adoption of Ordinance No. 3526. CERTIFICATE • I, the undersigned, • Clerk of the City of Renton, Washington, certify that this is a true and correct copy of Subscribed and Sealed this day of ,19 City Clerk OF R C1 59 16, Oy OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON . J `$ © L POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON, WASHINGTON 98055 255-8678 Z � A LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY AO � March 11 1982 DAVID M. DEAN, ASSISTANT CITY ATTORNEY 9�TE0 SEPtE*1O MARK E. BARBER, ASSISTANT CITY ATTORNEY TO : MAYOR BARBARA SHINPOCH MEMBERS OF CITY COUNCIL FROM: Daniel Kellogg , Assistant City Attorney RE: Forbes We attach a copy of our Reply Brief which has been filed in response to Mr. Forbes ' Brief in Opposition to our Motion to Dismiss . You will no doubt be informed in the press within the next few days of the filing of a Petition for Removal of our State court action to Federal District Court which was filed on March 8, 1982 by Mr. Forbes ' lawyers . We anticipated that this might be their response to our filing of the State court action. The statute which allows removal of State court actions was designed to protect litigants who .are entitled to protection by the Federal courts from harrassing State actions in an inconsistent and possibly hostile local court. For example , citizens of different states may seek the jurisdiction of the Federal court based upon the diversity of their citizenship . We believe that the removal petition is simply another procedural ploy which Mr. Forbes ' lawyers will use in an attempt to keep this matter in Federal court, not because he is entitled to stay in Federal court as a matter of right. Tomorrow we will be filing our Motion to Remand the State court action back to the King County Superior Court for proceedings on the merits . It is hard to estimate whether the Federal court will grant our Motion to Remand. However , we expect that if the court is inclined to grant our Motion for Dismissal of the main action that the Federal court will also grant our Motion to Remand. However , we do not expect the court to find that the State court action must be remanded back to State court as a matter of right . It is interesting to note that although the removal petition was originally filed before Judge Rothstein in Federal court, Judge McGovern has intervened to order transfer of the case to his jurisdiction and consolidation of the cases with our main action in Federal court. This removed the necessity of our asking Judge McGovern to do those actions . Mr . Clancy is arriving in town this evening and will argue the Motion on behalf of the City. The Motion to Dismiss will be heard at 9: 30 A.M. on March 12, 1982 before Magistrate Sweigert. The Magistrate may give an oral decision at the close of argument, or he may reserve ruling to study the briefs following oral argument . The Magistrate ' s report will be referred to Judge McGovern for final decision and both parties will have the opportunity to object to his report and recommendations in the event it is unfavorable to their position. As you are aware, the trial on the preliminary injunction request originallyscheduled for March 19, 1982 has been continued indefinitely pending disposition of our Motion. Therefore, we are scheduling Mr. Forbes ' deposition for Friday afternoon, March 19 , 1982. Mr . Clancy will be in Renton to take that deposition. We intend to examine Mr. Forbes, under oath, as to the identity of the ownership of the theaters and his two corporations , the allegations of loss and irreparable harm which he has made in his complaint for damages against the City, the identity of other theaters which he or other organizations which he controls may own, and the films which they have exhibited over the past few months . We trust that the information gathered will help protect the City from a claim for damages under Section 1983 and attorney' s fees under Section 1988 of the Civil Rights Act, and will establish that the films which Mr . Forbes has shown and intends to show are not "pornography" , but are in fact obscene as that term is defined in Miller v. California, in order to remove the cloak of respectablity and claim of constitutional infringement behind which Mr . Forbes now rests . -2- t We trust that you will address any questions that you may have concerning these proceeding to our office for reply. We appreciate the level of support which the Council has shown to our efforts to this point. We hope that this summary will serve to adequately inform you of recent developments and our course of action in the immediate future. Once again, it is important that the contents of this letter not be disclosed to other parties in order for us to maintain the confidentiality of our counsel with you, our client. Very truly yours, Daniel Kellogg DK: bjm cc : Mr . James J. Clancy 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE. WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC . , a ) Washington corporation , ) 11 et al , ) NO. C82-59M ) 12 Plaintiffs , ) DEFENDANTS ' REPLY MEMORANDUM ) IN SUPPORT OF DEFENDANTS ' 13 vs ) MOTION TO DISMISS ) 14 CITY OF RENTON , et al , ) ) 15 Defendants . ) ) 16 17 I 18 SUMMARY OF ARGUMENT 19 A . Sufficiency of State Court Pleadings : 20 Plaintiff ' s Memorandum in Opposition to Defendants ' 21 Motion to Dismiss calls into question the jurisdiction of the 22 State Court to decide the declaratory judgment action 23 commenced by Defendants . First , it is not the proper 24 function of the United States District Court to test the 25 sufficiency of the pleadings filed in a State Court action . 26 Such a test should await the ruling of the King County 27 Superior Court . Secondly , the City of Renton has rights or 28 other legal relations which are affected by a municipal 29 ordinance , and therefore may seek the jurisdiction of the 30 State Court to obtain a declaration of the rights and 31 relations of the parties under that ordinance. RCW 7.24 . 020. 32 Third , Plaintiffs attack the face of their own complaint DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. OF DEFENDANTS ' MOTION TO DISMISS ATTORNCT■ATLAW f00 t0 /CCOND/T.,r.O./OX/t• PAGE 1 R[NTON. WASHINGTON /0057 255-8678 3. herein by attacking the State Court jurisdiction . Neither 2 court may render an advisory opinion , with limited 3 exceptions . Therefore , Plaintiff ' s objection to the State 4 Court jurisdiction may preclude their invocation of this 5 Court ' s jurisdiction under 28 USC 2201 . 6 B . The Doctrine of Abstention Has Now Become a Doctrine of Dismissal in Section 1983 Cases . 7 The City is entitled to an order of dismissal of the 8 Plaintiff' s complaint because Plaintiff has filed to state a 9 claim upon which relief can be granted under the doctrine of 10 Huffman v . Pursue , Ltd which precluded the granting of 11 injunctive or declaratory relief in Section 1983 actions , and 12 under the cases of Allan v. McCrory and Parratt v . Taylor 13 which precluded the award of damages in Section 1983 actions , 14 unless the applicable exceptions are shown to exist on the 15 face of the Plaintiff ' s complaint . The doctrine of 16 "abstension" initially set forth in Huffman has now become a 17 doctrine of "dismissal" under the cases following Huffman . 18 C . Exhaustion of Administrative Remedies : 19 Plaintiffs have created a strawman by their own peculiar 20 construction of the Renton zoning code to allege requirement 21 22 of issuance of a conditional use or other permit prior to 23 commencement of their proposed land use. This strawman is a 24 complete fiction as Plaintiffs could easily have determined 25 by simply making an administrative inquiry of the City of 26 Renton . Plaintiffs attack on fictional administrative 27 procedures is a sham. 28 29 30 31 32 DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN KELLOGG, P.S. ATTORNEYS AT LAW OF DEFENDANTS ' MOTION TO DISMISS 1OOSO.SECOND ST..P.O.SOX SSS PAGE 2 RENTON. WASHINGTON 98057 255-8678 1 I I 2 LEGAL ARGUMENT 3 A. STATUS OF STATE COURT ACTION : 4 1 . Plaintiff ' s Petition to Remove Should be Disregarded for Purpose 5 of This Motion . 6 In Plaintiff ' s Memorandum in Opposition , Plaintiffs 7 argue that the State Court has no jurisdiction to decide the 8 declaratory judgment action filed by the City , although they 9 were served with process in the State action on February 25 , 10 1982, and took no steps to challenge the jurisdiction of the 11 Court or the sufficiency of the complaint filed by the City . 12 Instead , they filed a Petition to Remove the State Court 13 action to Federal Court on Monday , March 8 , 1982 , which was 14 filed under Cause Number C82-263R before this Court . 15 Prior to the hearing of Defendants ' Motion to Dismiss , 16 the City of Renton will have filed a motion for an order 17 remanding the State Court case back to the King County 18 Superior Court , and for the award of costs pursuant to 28 USC 19 1447 (c) . The Plaintiffs hope to urge this Court to seek the 20 path of least resistance bydenying ying Defendants ' motion to 21 dismiss upon a claim that an action in State Court is no 22 longer pending until an order of remand is entered . The 23 Plaintiff ' s procedural posturing should not prevent this 24 Court from entering the order of dismissal sought by 25 Defendants herein . 26 2. The State Court has Jurisdiction to Enter Declaratory Judgment . 27 28 In 1935 the State of Washington enacted the Uniform 29 Declaratory Judgment Act '(codified as Chapter 7 . 24 RCW) which has been adopted in over 40 jurisdictions . The Act is to be 30 31 liberally construed and administered , and is remedial in 32 nature . RCW 7. 24 . 120 ; Sorenson v . Bellingham, 80 Wn . 2d 547 , DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN ec KELL06C3, P.S. ATTO AT LAW OF DEFENDANTS ' MOTION TO DISMISS goo So.s[coND Tt tT.,P.O.pox SEs PAGE 3 RENTON, WASHINGTON 98057 sea-eerie 1 559 , 496 P . 2d 512 ( 1972 ) . The question of whether 2 jurisdiction exists for the declaratory action commenced by 3 the City should be properly left to the State Court for 4 decision under its pleading rules which allow liberal 5 amendment of pleadings . Superior Court Civil Rule 15 . 6 Plaintiffs state in their Memorandum in Opposition ( Page 7 4 , line 12-13) that the City seeks merely a declaratory 8 judgment that the ordinance is constitutional . However , an 9 examination of Renton ' s Prayer for Relief as set forth in the 10 copy of the complaint attached to Defendants ' Memorandum of 11 Points and Authorities in Support of Defendants ' Motion to 12 Dismiss , will indicate that much more is sought . The City ' s ;13 principal prayer is for a declaration that the ordinance is "14 constitutional as applied to the specific land use, proposed 15 by Plaintiffs herein . 16 Plaintiffs contend that the City ' s State Court complaint 17 seeks a mere advisory opinion . This erroneous conclusion 18 undermines Plaintiffs ' entire review of Washington law 19 regarding declaratory judgments . Although a determination of 20 the jurisdiction of the State Court and the sufficiency of 21 the complaint therein must await a determination by the State 22 Court , it is important for this Court to be fully advised of 23 the provisions of the Washington Declaratory Judgment Act . 24 RCW 7 . 24 . 020 establishes the criteria upon which a 25 person may seek a declaratory judgment as follows : '26 "A person . . . whose right . . . or other legal relations are affected by a . municipal ordinance 27 . . . may have determined any question of 28 construction or validity arising under the . . . ordinance . . . and obtain a declaration of rights , 29 status or other legal relations thereunder . " 30 Plaintiffs ' assertion that the City has no standing to 31 request a declaratory judgment is based upon two false 32 premises . First , Plaintiffs contend that the City is not a DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOCG . P.S. ATToieNty.AT LAW OF DEFENDANTS ' MOTION TO DISMISS 100 SO.SECOND ST..P.O.SOX... PAGE 4 RtNTON. WA.HINOTON 98067 :Da•ee7e 1 person whose rights or status, are affected . Other than the 2 City ' s obvious interest in the validity and application of 3 its ordinance , and the integrity of its land use planning 4 municipal function , the City now has potential exposure to 5 liability for damages under 28 U . S.C . Section 1983 , Monell v . 6 Dept . of Soc . Serv . of New York , 436 U .S. 658 , 56 L . Ed 2d 7 611 , 98 S. Ct . 2018 ( 1978) , and for costs and expenses under 8 28 U . S. C. Section 1988 , Owen v . City of Independence , 445 9 U .S. 622, 63 L. Ed 2d 673 , 100 S. Ct . 1398 ( 1980) . 10 RCW 7 . 24 . 130 includes "municipal corporations" within 11 the definition of "person" for the purpose of the Declaratory 12 Judgment Act . The New Jersey courts , construing the Uniform 13 Declaratory Judgment Act , have held that municipal 14 corporations are "persons" within the meaning of that section 15 and have a sufficient interest to obtain a declaration of 16 rights , County of Bergen v . Port of New York Authority , 32 17 N . J . 303 , 160 A. 2d 811 , 813 ( 1960) , of even an ordinance not 18 yet adopted . Newark v . Benjamin , 144 N . J . Super . 58 , 364 19 A. 2d 563 ( 1976) , aff. 144 N. J . Super . 389 , 365 A. 2d 945 , aff. 20 75 N . J . 311 , 381 A.2d 793 . 21 Second , the City seeks a declaration of the validity and 22 applicability of the Ordinance which Plaintiffs dispute . It 23 cannot be argued in good conscience that the City and the 24 Plaintiffs are not in actual controversy as required by the 25 law of the State of Washington . The principal elements of a 26 justiciable controversy under the Washington Declaratory 27 Judgment Act are as follows : 28 1 . The parties must have existing and genuine , as 29 distinguished from theoretical rights or interests . 30 2 . The controversy must be one upon which the 31 judgment of the Court may effectively operate , as distinguished from a debate or argument 32 evoking a purely political , administrative philosophical or academic conclusion . DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELC3, P.S. ATTORN[Ti AT LAW OF DEFENDANTS ' MOTION TO DISMISS +DO SO.SECOND IIT.,P.O.SOX SIS PAGE 5 R[NTON, WASHINGTON 9e0e7 255-ee78 1 3 . The controversy must be such that a judicial determination will have the force and effect 2 of a final judgment in law or decree in equity upon the rights , status or other legal 3 relationship of one or more of the real parties in interest . 4 4 . The proceeding must be genuinely adversary in 5 character and not a mere debate , but advanced with sufficient militancy to engender a 6 thorough research and analysis of the major issues . 7 State ex rel O'Connell v . Dubuque , 68 Wn . 2d . 553 , 558 , 413 8 P . 2d . 972 ( 1966 ) . The first element was refined in 9 Diversified Industries v. Ripley , 82 Wn . 2d , 811 , 815 , 514 10 P .2d . 137 ( 1973) , by further explanation that the justiciable 11 controversy must be " . . . an actual , present and existing 12 dispute , or the mature seeds of one , as distinguished from a " 13 possible , dormant , hypothetical , speculative , or moot 14 disagreement . . . . " 15 Under any reasonable construction of the facts , this 16 Court must agree that the City of Renton and the Plaintiffs 17 are engaged in an actual , present and existing dispute , 18 19 between parties having • genuine , opposing , direct and 20 substantial interests . A judicial declaration by the State 21 Court of the validity and applicability of the ordinance will 22 have the force and effect of a final judgment in law upon the 23 parties . Finally, in view of the considerable time and 24 effort expended by the parties herein , it must be clear to 25 the court that these proceedings are genuinely adversary in 26 character and are advanced with sufficient militancy to 27 engender a thorough research and analysis of the major 28 issues . 29 In any event , the issues involved in this litigation are 30 of such great and overriding public moment that the 31 Washington Court , will take jurisdiction of this matter to 32 determine the validity and applicability of the ordinance in DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELL06G. P.s. AW OF DEFENDANTS ' MOTION TO DISMISS SECONDTt,P.O. too to.SECOND tiT..P.O.pox a=• PAGE 6 RENTON, WASHINGTON 98057 a55-ee7e • 3. question even in the absence of a justiciable controversy. 2 See O 'Connell , supra , and In re Elliott , 74 Wn . 2d . 600 , 614 , 3 446 P . 2d 347 , ( 1968) , where the Court reviewed the genesis of 4 the "great public interest" exception in the case of Huntamer 5 v . Coe , 40 Wn . 2d . 767 , 246 P. 2d 489 ( 1952) . By either the 6 criteria for a justiciable controversy or the exception for 7 questions of great overriding public moment , this litigation 8 presents a controversy sufficient for determination by the 9 State Court under the civil rules which allow a liberal 10 amendment of pleadings . Superior Court Civil Rule 15. 11 B. THE DOCTRINE. OF ABSTENTION APPLIES: 12 1 . The Plaintiffs ' Complaint Fails to Satisfy the Jurisdictional 13 Requirements of a viable 1983 Action . 14 Younger v . Harris controls cases wherein the State 15 governmental action is criminal . Huffman v . Pursue , Ltd . 16 controls cases wherein the state governmental action is 17 civil . Because the State action here is a civil action , 18 Huffman v. Pursue , Ltd . is controlling . The only difference 19 between the relief to be accorded where Younger v . Harris 20 controls (criminal cases ) and the rule to be applied where 21 Huffman v . Pursue Ltd . controls (civil cases) is the manner 22 in which the Federal Court administers the case . Because in 23 the Younger type situation , the Plaintiff' s Section 1983 24 25 claim for damages cannot be litigated in the criminal action , 26 the Section 1983 federal action can survive. In the Huffman 27 v . Pursue Ltd . situation , since all of Plaintiff' s claims can 28 be litigated in the civil action , the federal Section 1983 29 action must be dismissed . There is no jurisdiction for the Federal Court to proceed further . Judice v. Vale , supra ; 30 31 Moore v . Sims , supra . It is significant that Plaintiffs 32 devote only six lines (page 9 , lines 15-20) to a discussion DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN eI KELLOGG. P.S. ATTORNEYS OF DEFENDANTS ' MOTION TO DISMISS SECOND P.O.SOX Sig OW PAGE 7 RENTON, WASHINGTON 98057 1 of Huffman v . Pursue , Ltd . , which the City deems to be 2 controlling. 3 The Illinois District Court opinion in the case of Kit 4 Dal Cinema , Inc . v . Village of Downers Grove , cited by 5 Plaintiffs does not adequately treat Huffman v . Pursue , Ltd . 6 In fact , the court itself does not even cite the case . 7 , Huffman is a complete answer to the Court ' s opinion at pages 8 3 to 5 . Apparently the City did not cite Huffman and what it 9 stood for in civil cases . The Court ' s analysis is incorrect 10 in saying that merely because the Plaintiff brought his 11 Federal Court action first he should have the right to avoid 12 dismissal to litigate in the State Court . The City submits 13 that if Huffman had been argued to the Court , the Court would 14 have been required at least to discuss it and to hold 15 contrary to the Huffman doctrine . It may be that the facts 16 of that case were such as would indicate that it would come 17 under the first prong of the Allen v . McCrory and Parratt v . 18 Taylor test if the ordinance was unconstitutional on its face 19 and in every particular . But the opinion failed to cite 20 Huffman which is controlling and does not draw the 21 distinction that the City draws here . 22 Responding to Plaintiffs ' claim that "this Court has 23 jurisdiction of the parties and the subject matter" 24 (Plaintiff ' s Memorandum in Opposition , at page 2, line 5) the 25 Defendants admit only that this Court has jurisdiction to 26 determine its own jurisdiction . See Defendants Points and 27 Authorities at Point 1 , page 11 . 28 Huffman v . Pursue , Ltd precludes the granting of 29 injunctive or declaratory relief in Section 1983 actions 30 unless the Plaintiff ' s complaint discloses on its face not 31 only irreparable injury, which is a known prerequisite for an 32 injunction , but also that the injury would be great and WARREN & KELLOGG. P.S. DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT ATTONNNNN AT LAVA OF DEFENDANTS ' MOTION TO DISMISS f Oow:.SECOND tT.. ►.o.■Ox SSG PAGE O R[NTON. WASHINGTON 98057 155•e678 1 immediate , or that the governmental action complaint was in 2 bad faith with an intention to harrass , or " . . . flagrantly or 3 potentially violative of express constitutional provisions in 4 every clause , sentence , paragraph and in whatever name and 5 agai•:st whomever it might be made to apply. " Huffman v . 6 Pursue , Ltd , supra , at 601 -602 . The court elaborated upon 7 the Huffman doctrine in the cases of Judice v . Vale , 430 U . S. 8 327 , 51 L . F.d . 2. 376 , 97 Supreme Ct . 1211 ( 1977) , Trainor v . 9 Hernandez , 431 U . S. 434 , 52 L . Ed . 2. 486 , 97 Supreme Ct 1911 10 ( 1977 ) and Moore v . Sims , 442 U . S. 415 , 60 L. Ed . 2 . 994 , 99 11 Supreme Ct . 2371 ( 1979 ) , to show that "abstension" under 12 Huffman is really "dismissal" for failure to state a cause of 13 action under Section 1983 . 14 It now seems to be clear under Allen v . McCrory , 449 15 U . S. 90 , 66 L. Ed . 2d . 308 , 317 , 101 S. Ct . 411 ( 1980) , and 16 Parrott v . Taylor , U . S. , 68 L. Ed . 2d . 420 , 434 , 101 17 S. Ct . 1908 ( 1981 ) , that one of the primary requirements for 18 pleading a Section 1983 cause of action in a Huffman v . 19 Pursue type situation is that the pleader demonstrate that 20 the facts alleged establish one of three circumstances to be 21 exis ',ent before Federal Court jurisdiction will prevail over 22 the Defendant ' s objection : 23 1 . The state substantive law is facially unconstitutional ; 24 2 . The state procedural law was inadequate to 25 allow full litigation of a constitutional claim; or 26 27 3 . The state procedural law, though adequate in theory is inadequate in practice . 28 The first requirement that the statute is facially 29 unconstitutional or is subject to such an interpretation , is 30 a contention that this Court has already rejected . The State 31 declaratory judgment complaint allows litigation of all of 32 the Plaintiffs ' Constitutional claims and the State DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. T LAW OF DEFENDANTS ' MOTION TO DISMISS ATTORNEYS T•. P. goo�o.•rcoNo rT., ►.O.sox SRO PAGE. 9 RENTON. WASHINGTON 08057 155 9A7e 1 procedural law is adequate in practice . Therefore , under the 2 test in Allen v . McCrory and Parratt v. Taylor the state 3 action is one in which all of the claims that Plaintiffs are 4 attempting to place before the Federal Court can be 5 litigated . 6 Plaintiffs cite the Brockett case , which is 7 distinguishable on the basis that the Court in Brockett found 8 the statute to be unconstitutional on its face , therefore 9 qualifying under the Allen v . McCrory and Parratt v . Taylor 10 cases . 11 2. The Pullman doctrine is extended by 12 Huffman . 13 The Pullman doctrine does apply particularly where 14 severance has been made an issue . In the typical Pullman 15 doctrine case the Court could abstain under its own 16 discretion . But here the City is urging here something more 17 than discretionary abstension : a combination of Pullman and 18 Huffman . Under Pullman and Huffman the Court must abstain to 19 avoid a conflict with the Eleventh Amendment , and not attempt 20 to interpret severance and the meaning of local ordinances 21 because such matters are more particularly suited for 22 decision by the State Court . See Defendants Memorandum at 23 page 10 , beginning at line 16 , for a discussion of the 24 Metromedia case . The City urges the Huffman v . Pursue 25 doctrine that dismissal is mandatory unless the Court finds 26 that the ordinance is unconstitutional on its face and in 27 every particular . 28 C . EXHAUSTION OF ADMINISTRATIVE REMEDIES. 29 The entire argument of exhaustion of administrative 30 remedies is grounded upon the Plaintiff ' s faulty and 31 presumptious construction of the City ' s Zoning Code to 32 construe the necessity of issuance of a conditional use WARREN & KELLOGG. P.S. DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT ATTORN[T•AT LAW OF DEFENDANTS ' MOTION TO DISMISS too SO.RIDCONO RT..P.O.SOX 616 PAGE 10 R[NTON, WASHINGTON 98087 155.8678 permit , special permit or variance prior to commencement of 2 Plaintiff' s proposed land use . The City has stated on the 3 record that such a construction is erroneous . Theaters are 4 an allowed use in the B-1 and more intensive land use zones 5 within the City of Renton except insofar as the locational 6 requirements of Ordinance No. 3526 apply. Plaintiff 's have 7 failed to exhaust their administrative remedies by simply 8 failing to inquire of the City regarding allowable land uses 9 prior to jumping to their own conclusions . Therefore the 10 Plaintiff' s attack upon "strawman" administrative procedures • 11 which are completely fictional , and the protestation of 12 "discretionary , standardless and indefinite" processes are a 13 sham. 14 III 15 CONCLUSION 16 The Defendants ' Motion to Dismiss Complaint Pursuant to 17 FRCP Section 12(b) ( 1 ) and (6) should be granted . Plaintiff ' s 18 Amended and Supplemental Complaint should be dismissed . 19 Dated : March 11 , 1982. 20 21 Respectfully submitted , 22 / 23 DANIE.L ELLOGG , 24 Attorney for Defend n s 25 26 27 28 29 30 31 32 DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG, P.S. ATTORN[T•AT LAW OF DEFENDANTS ' MOTION TO DISMISS ,00.O.SECOND ST..P.O.BOR.i. PAGE 11 R[NTON. WASMINGTON 9e057 155-ee76 4 i ' RECciv FEB 1 9 10R2 -� • 1 2 3 4 5 8 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC. , a ) Washington corporation, et ) 10 al. , ) 11 y Plaintiffs , ) No, C82-59M vs. ) 12 ) NOTICE OF DEPOSITION THE CITY OF RENTON, et al . , ) UPON ORAL EXAMINATION 13 ) )14 Defendants . ) 15 TO: The City of Renton and all other Defendants ; and 18 TO : Warren & Kellogg, P. S. , their attorneys . 17 YOU AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the testi- 18 19 mony of the persons designated on the attached sheet will be taken upon oral examination at the instance and request of the plaintiffs 20 21 in the above-entitled and numbered action before a Notary Public at 22 10604 N.E. 38th Place , Suite 105 , Kirkland , Washington 98033 ; at 23 the time and on the dates indicated on the attached sheet , the said 24 oral examinations to be subject to continuance or adjournment from 25 time to time or place to place until completed, and to be taken on 26 the ground and for the reason that said witnesses will give evi- 27 dence material to the establishment of plaintiffs ' case. 28 DATED this 11:1(eay of February, 1982. 29 HUBBARD, BURNS & MEYER 30 31 BYE 1 • ►'-1,L " /Ja k R. Burns v. Att rney for Plaintiffs ATTORNEYS AT LAW Hubbard, Burns & Meyer Notice of Deposition A PROFESSIONAL SERVICE CORPORATION Page 1 ` 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 7////////T 1 WITNESS DATE AND TIME OF APPEARANCE 2 David R. Clemens March 3 , 1982 at 1 : 30 p .m. 3 City of Renton March 374 , 1982 at 3 : 30 p.m. on 4 March 3 , 1982 and reconvening at 9 : 30 a .m. on March 4 , 1982 5 8 7 TO THE CITY OF RENTON : 8 9 Plaintiffs intend to examine on the following matters : 10 1 . The Zoning Code of the City of Renton, its applications 11 and procedures , including the procedures for obtaining a special 12 permit , c3nditional use permit , and/or a zoning variance . 13 2 . The building requirements of the City of Renton includ- 14 ing, but not limited to : parking, setbacks , land area , landscaping 15 and buffer zones for construction of a motion picture theatre in 16 those areas of the City designated by David R. Clemens , Policy 17 Development Director as not falling within the locational regula- 18 tions of Ordinance No. 3526 . 19 Pursuant to Federal Rule of Civil Procedure 30( b) (6 ) , you 20 are directed to designate an officer, managing agent or other 21 person to testify concerning the designated matters . 22 23 24 25 28 27 28 29 30 31 ATTORNEYS AT LAW Notice of De position Hubbard, Burns & Meyer Page 2 p A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 s. minimummiliaimmaimmidisimiimisimaimmummummaiiimi MID for Recc7 : .,t Request ul 411W \-L', Jt‘'lJl. Wen it ,t ,1 'tt HL 4'k • 1 r1 l i bt.AL t.Sl.11F ,t';.1n,o I '+, ini s Contract . made and entered into thin day . .'anuarv, 1482. between hobert h. `cMae and Elia C. ":ckae, herein- after called "Seller", and Kukio Kay Properties Inc. . a 6ashinyton ,.'rporation, hereinafter called the "purchaser", Wl'fNESSETh: C .0 tV 91 The seller agrees to sell to the purchaser and the purchaser N agrees to purchase from the seller the real estate, with the appurtenances and the personal property, situate In King County. State of Washington, described in Exhibit "A" attached hereto and by this reference made a part hereof. The terms and conditions of this contract are as follows- The purchase price is Eight Hundred Thousand and no/100 Dollars 1 t5800,000.00) . payable as follows: 4 1. Thirty Two Thousand Five Hundred and no/100 Dollars : .S32,500.00) upon execution of this agreement. including purchaser's earnest money, receipt of which is hereby acknowledged. 2. Promissory Note in the amount of Ninety Thousand and no/100 Dollars 090.000.00) together with 18% interest on the diminishing balance payable in six (6) monthly payments of Fifteen ' Thousand Seven Hundred Ninety Seven 27/100 Dollars (S15.797.27) • each, commencing on February 26, 1982. receipt of which Promissory i, Note is hereby acknowledged. fik a. 3. The balance of Six Hundred Seventy Seven Thousand Five i 4 _. Hundred and no/100 Dollars ($677,500.00) shall be paid in monthly '`K installments of Nine Thousand Seven Hundred Twenty and 16/100 4. Dollars ($9.720.16) or more at purchaser's option on or before the rs 26th day of February. 1982 and on or before the corresponding day .':'; of each succeeding calendar month until the balance of said ' �';. ' u ? , .‘. 111064154140 i 'kLI: ',,,.•..3 t -a 1 :nuchas.' VI I:r 01•111 11.1ve hc•rn itsI Iv Poi t.I. Ih, VI I( Ire hJIan “1 the put,hase price, plus Interest . .,h.+l l th, .aI.I on or be fore e1.rt'r lets 0) years plus thirty lid) days tr,'tc the date of closing. The purchaser further agrees to pay interest on the dimintshiny principal balance of said purchase price at the rate of 122 per annum from the 2bth day of January, 1962 which interest shall he p deducted from each installment payment and the balance of each 7 C payment applied in reduction of principal. VJ H All payments to be made hereunder shall be made at 13520 • • C N.E. 50th, Bellevue, Washington, or at such other • r place as the seller may direct in writing. :, As referred to in this contract , "date of closing" shall be r January 26, 1982. • 1 . The purchaser assumes and agrees to pay before delin- I quency all taxes and assessments that may as between grantor and grantee hereafter become a lien on said real estate; and if by the i '� . terms of this contract the purchaser has assumed payment of any mortgage, contract or other encumbrance, or has assumed payment of or agreed to purchase subject to, any taxe♦ or assessments now a lien on said real estate, the purchaser agrees to pay the same before delinquency. 2. The purchaser agrees, until the purchase price if fully.fir paid, to keep [Fit buildings now and hereafter placed on said real t estate insured to the actual cash value thereof against loss or damage by both fire and windstorm in a company acceptable to thet l ' seller and for the seller's benefit, as his interest may appear, f; and to pay all premiums therefor and to deliver all policies and Yt i i. renewals thereof to the seller. 3. The purchaser agrees that full Inspection of said real estate has been Slade and that neither the seller nor his assigns ! 4 1 * ie • 04 t ' -2- 4 ` i 54 ���R4a r. { ` t '' tip.,. e , '.Iil ht. tte•1,I t 0 .env t'e,\•t'il.lrrt rvn ,ectln h{ 1' te• tend l t ton „t ,,n v • t• :,t.'ve•ments thereon nor shall the purchaser or seller or tl.e as..tens of either be held to any covenant or agreement for altera- : ions . improvements or repairs unless the covenant or agreement relied on is contained herein or is in writing and attached to and r •+,+,e .+ part ot this contract . -.. The purchaser assumes all hazards of damage to or C Ctr;tru:tion of any improvements now on said real estate or here- after placed thereon, and ot the taking of said real estate or any N part thereof for public use; and agrees that no such damage, f S i destruction or taking shall constitute a failure of consideration. f In case any part of said real estate is taken for public use, the r portion of the condemnation award remaining after payment of reasonable expenses of procuring the same shall be paid to the seller and applied at payment on the purchase price herein unless 1, the seller elects to allow the purchaser to apply all or a portion ', of such condemnation award to the rebuilding or restoration of any improvements damaged by such taking. In case of damage or destruc- f, t ion from a peril insured against,, the g proceeds of such insurance 1 remaining after payment of the reasonable expense of procuring the ai V same shall be devoted to the restoration or rebuilding of such ' improvements within a reasonable time, unless purchaser elects that ;, A said proceeds shall be paid to the seller for application on the ii purchase price herein. t. il � 5. The seller has delivered, or agrees to deliver within 15 days of the date of closing, a purchaser's policy of title insur- ance in standard from, or a commitment therefor, issued by Common- i'.it +g `, wealth Title Insurance Company, insuringthe purchaser to the lull " amount of said purchase ;t �.`' pu price against loss or damage by reason of ":`. r , vt 4,;tip ,: , ;;,ter. 4 4 3 stcic:t in seller's title to said real estate as of the date of : losing .and containing no exceptions other than the following: A . fronted gener.tl exceptions appearing in said policy torn, b. Liens or encumbrances which by the terms of this contract the purchaser is to assume, or as to which the conveyance hereunder is to he made subject; and c. Any existing contract under which seller is pur- chasing said real estate, none of which for the purpose of this paragraph 5 shall be deemed defects the seller's title. N6. To the extent this contract embraces personal property, it is the intention of the purchaser to grant and the seller to hold and retain a security interest in accordance with the Uniturm t { Commercial Code of the State of Washington until the entire pur- a chase price is paid in full. 7. If seller's title to said real estate is subject to an '•i existing contract or contracts under which seller is purchasing said real estate, or any mortgage or other obligation which seller is to pay, seller agrees to sake such payments in accordance with the terms thereof and to pay said contract in full prior to the expiration of this contract; and upon default, the purchaser shall sQ have the right to make any payments necessary to remove the default, and any payments so made shall be applied to the payments next falling due the seller under this contract. • 8. The seller agrees, upon receiving full payment of the purchase price and interest in the manner above specified. to execute and deliver to purchaser a statutory warranty deed to said • 4•', real estate, excepting any part thereof hereafter taken for public• use, free of encumbrances except any that may attach after date of ► '' ;. '� c closing through any person other than the seller. and subject to - x -4- ;-fig'• mimmomm . 0.uihran . s sho%.n in Exhibit "A" and to execute an; deliver .o purchaser .i hill of sale of the personal property embraced in i Schedule ,.A.,, �. finless different date is provided for herein, the pur- ..haser shall he entitled to possession of said real estate as of the co',rmencerr.ent ut business January 26, 1982. and to retain possession so long as purchaser is not in default hereunder. The • purchaser covenants to keep the buildings and other improvements on said real estate in good repair and not to permit waste and not to ty use, or permit the use of. the real estate for any illegal purpose. The purchaser covenants to pay all service, installation or .onstruction charges for water, sewer, electricity, garbage or other utility services furnished to said real estate after the date purchaser is entitled to possession. 10. In case the purchaser fails to make any payment herein provided or to maintain insurance, as herein required, the seller may make such payment or effect such insurance, and any amounts so it paid by the seller, together with interest at the rate of 12% per • • 4 annum thereon from date of payment until repaid, shall be repayable s � by purchaser on seller's demand, all without prejudice to any other right the seller might have by reason of such default. 11. Time is of the essence hereof, and in the event the comply purchaser shall fail to; p 7 with or perform any condition or agreement hereof g promptly at the time and in the manner herein _ i� • required, the seller may elect at his option either: (a) to declare all of the purchaser's rights hereunder terminated on thirty (30) days' written notice to the purchaser, all payments made hereunder and all improvements placed upon the premises being forfeited to , the seller and seller having the right to re-enter and take posses- ti Sion of the real estate; or (b) to declare the whole amount of the A1;�14t4• "'r r, � I .......mmoimimmiannownsmag ;gut:haae money or any part thereof to he due and collectible ;.t once and proceed In any manner authorized by law to enforce the collection of the full balance thus declared due. 12. Purchaser agrees to pay all reasonable expenses and tees, including attorney's fees, necessarily incurred in the collection of any and all installments; for the enforcement of any , O and all covenants or tor termination of purchaser's rights here- 1 C Cunder and that venue of any action brought hereunder shall be in N King County, Washington. SIN WITNESS WHEREOF. the parties hereto have executed this ' instrument as of the date first written above. 471 Ro er e I e , '!ham irl:Elis C. McRae # * KUKIO P OPA' ES INC. BY •1a.V Nthz. ' rf� ores . t �• STATE OF WASHINGTON ) COUNTY OF KING ) ss. On this ' day of January. 1982. personally appeared before se Robert 1 . Kae and Ella C. McRae to se known to be the ,! K` individuals described herein as Seller. and who executed th within ,_ instrument as their free and voluntary act and deed for .,,; ,uses • , and purposes therein mentioned. .�. • �• GIVEN UNDER MY HAND and official seal the day first f` above written. t - ' .Y r T' ( a pr a. tit :Yoe ton. . reoidins : ' ;1-' R," i t , ?.: ;Ik. ,,, •at 1 ii 1 , • w ;All. of kiASN1Ni.IoN 1 4.4. ttiNil' uF KINI; On this ��' day ot January, 198. , :‘rtore me Roger A�Furbes•, o personally appeared kio hay Properties. Inc. , the yPurc Purchaser therein be hdescribed,e and ot whoexecuted the within instrument on behalf ot said corporation as its tree and voluntary act and deed for the uses and purposes therein • mentioned. GIV6u l'AUtk MY HAND and official seal the day and y Ari ..tbove written. rat i ,�' • ii011:111f [or the Cate of ha tlfij residing t shln g Y t ri C Rt . i t ti. • "rr S } • .7. ..; • • EX/Il nl I ",s" /'Aril..!. A Lots 1 and Z, Block b. Smither's Sixth Additf-n to the Town ot Kenton, as per plat recorded in Volume 26 ot Plats. Page 47,records ot King County; t'AKCEL b: 9 1. C Lot and the West 2 feet of Lot 3, Block 34, Smither's 2nd Z 3 Addition to the Town of Kenton, as per plat recorded in Volume 10 a c of Plata . Page 28, records of King County; 4 N '. All situate in the County of King, State of Washington. C � t z 1 SUBJECT TO: That certain real estate contract filed under King County Auditor's •!#'number 780614-0569 dated June 6, 1978 between Irwin Fey, who also representativeappears of record John individually v l of the EstateofMildredMiFey, who aa alsoappears personal record as Mildred May Fey, deceased; Robert E. Fey and Carol Ann Fey, his wife; and Gerald Wayne Maris and Helen Maris, his wife, ; , Sellers; and Robert, b. McRae and Elia C. McRae, husband and wife. • Pur:hasers, which the seller agrees to pay in full prior to January ' 26, 1992. ALSO SUBJECT TO: ti A party wall agreement and the terms and conditions thereof dated May 25, 1940 recorded under King County Auditor's number 3106260, a side sewer easement recorded under recording number 3106260. an easement disclosed by the plat of said addition and restrictions, conditions and covenants contained in an instrument recorded under King County Auditor's number 780614-0569. t TOGETHER WITH: pk: The personal property and theatre equipment described on Schedule "A" attached hereto and made a part hereof. 5. • l , ,. • P , d / .,. ; 1�4, 4 d"•Y 4•0. r, • • • • SCHEDULE "A" 4 a: , r Boxy Theatre 720 Seats rProjection Booth Platter System Projector Sound Head Xenon System Sound System Lenses E:' Concession Equipment Bar J Popcorn Machine Ice Machine i. op`! Screen and Drapes t Air Conditioning System and Heat Pump L.. 4 1 Renton Theatre /; tt 540 Seats Projection Booth ; • Platter System • Projectors, _' Sound Head Xenon System Sound System Lenses Concession Equipment Bar it r Popcorn Machine ' Screen • ' Air Conditioning System • . '.. ,!,, .r:,,f"•..,-..,i',. ...... 4w Yti �}! ,may �c c i,,yta ,err S `°? ,1:' . V ` 1 1 :': k1y04. ; t y ."', ,i• T +fi k ,. v_ f } 2 { , +- 1 yy ,i k 4 1.s:: a • STATE OF WASHINGTON County of King ss The Director cf Records & Elections, King County, State of Washington, and exofficio f !' ; :! uthef instruments, do hereby certify the foregoing co;ly hes b e; ;,:rcr! with the original Instrument as the same appears on file r n d , f d i.i t!i -,fficc,and thit the same is a true and perfect transcript of said original and rf the whole thereof. Witness try hand an- official seal this f.Ef„2_2 1982 Gay of , 19 Director of Rec s & E eti,ons By.. / eputy • 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC . , a ) Washington corporation, et ) 10 al. , ) ) 11 Plaintiffs , ) NO. C82-59M vs. ) 12 ) NOTICE OF MOTION THE CITY OF RENTON, et al . , ) 13 ) ) 14 Defendants . ) 15 TO: Clerk of the Court; and 16 TO: The above named defendants ; and 17 TO: Warren & Kellogg, P. S. , their attorneys . 18 PLEASE TAKE NOTICE that plaintiffs ' Objections to the Report 19 and Recommendation of the Magistrate will be brought on for hearing 20 on March 5 , 1982 at 9 : 30 a.m. , or as soon thereafter as the matter 21 may be heard. Pursuant to Local Rule , the matter will be 22 23 considered without oral argument unless otherwise directed by the 24 Court . DATED this 1 ( l 'day of February, 1982. 25 26 HUBBARD, BURNS & MEYER 27 BY l ). 28 lack . Burns Attorney for Plaintiffs 29 30 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer Notice of Motion A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (2061 828-3636 ti 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC. , a ) Washington corporation, et ) 10 al. , ) ) 11 Plaintiffs , ) NO. C82-59M vs . ) 12 ) CERTIFICATE OF SERVICE THE CITY OF RENTON, et al . , ) 13 ) ) 14 Defendants . ) 15 16 I certify that I served a copy of this Notice of Motion on 17 the parties to this action on February 17, 1982, by mailing copies , 18 postage prepaid, to them at the following addresses : 19 Daniel Kellogg Warren & Kellogg 100 So. Second Street 20 P .O. Box 626 21 Renton, Washington 98057 22 I certify under penalty of perjury that the foregoing is true and 23 correct. 24 25 Jac R. Burns 26 27 28 29 30 31 ATTORNEYS AT LAW Certificate of Service Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (2061 828.3636 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES , INC . , a ) 10 Washington corporation , and KUKIO ) BAY PROPERTIES , INC . , a Washington) 11 corporation , ) NO. C82-0059M ) 12 Plaintiffs , ) REQUEST FOR PRODUCTION vs . ) OF DOCUMENTS FOR 13 ) INSPECTION AND COPYING THE CITY OF RENTON, et al . , ) 14 ) Defendants . ) 15 TO: The City of Renton and all other defendants ; and 16 TO: Larry Warren , attorney for the City of Renton . 17 Pursuant to Rule 34 of the Civil Rules of the Superior 18 Court of the State of Washington , the plaintiffs request that 19 defendants permit the plaintiffs or their agents , and/or attorneys 20 21 to inspect a copy of the documents hereinafter described . 22 "Document" as used herein means any memorandum, report , 23 study, contract , agreement , chart , graph ,• index , data sheet , data 24 processing card or tape , note , , entry, telegrams , letter , advertise- 25 ment , brochure , circular , tape , record , bulletin , paper , book, 26 pamphlet , account , photograph and any other written , typewritten , 27 handwritten or other graphic matter , any electronic or other 28 recording of any kind or nature , any mechanical or electronic sound 29 recordings or transcripts thereof, however produced or reproduced , 30 and all copies or facsimiles of 'documents by whatever means made . 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 1 The aforesaid production for inspection and copying should 2 be made at the offices of Hubbard , Burns & Meyer , 10604 N.E. 38th 3 Place , Suite 105 , Kirkland , Washington , within twenty (20) days 4 after service of this request . Inspection and copying will he 5 conducted by the undersigned attorneys or their agents and will 6 continue from time to time and from day to day until completed . 7 This request for production shall be deemed to he continu- 8 ing in nature , calling for prompt production by defendants of all 9 documents which come into their actual or constructive possession , 10 trust , care or control at any time in the future , as well as all 11 documents now in their actual or constructive possession , trust , 12 care or control . The specificity of any request shall not he 13 construed as reducing the scope of any more generalized requests . 14 Documents responsive to the following requests contain 15 information relevant to matters involved in this action and are 16 reasonably calculated to lead to discovery of evidence relevant to 17 such matters . If you withhold from producing any documents other- 18 wise requested herein under a claim of privilege , please : (1 ) 19 identify each such document with sufficient particularity as to 20 author(s) , addressee(s) , or recipient(s) , the contents to allow 21 plaintiffs to bring the matter before the Court ; (2) state the 22 nature of the privilege(s) asserted ; and (3) state in detail the 23 factual basis for the claim of privilege . 24 DOCUMENTS TO BE PRODUCED 25 Plaintiffs request that you produce and make available for 26 inspection, separately, in response to each numbered paragraph , all 27 documents which contain , in whole or in part , which refer to , in 28 whole or in part , or which reflect , in whole or in part , the 29 following : 30 31 Plaintiffs ' Request for ATTORNEYS AT VFW Production of Documents Hubbard, Burns & Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 1 . All video tape recordings , magnetic sound recordings 2 and transcribed transcripts of the Planning & Development Committee 3 of the Renton City Council relative to consideration of Ordinance 4 No. 3526 . 5 ANSWER: 6 7 2 . All video tape recordings , magnetic sound recordings 8 and transcribed transcripts of City Council meetings of the City of 9 Renton relative to consideration of Ordinance No . 3526 . 10 ANSWER: 11 12 3 . All studies done by the Planning Department , Planning 13 Staff, or used or considered by the Planning Department or Staff, 14 in the preparation or formulation of Ordinance No . 3526 , or any 15 report relative thereto to the Planning Commission and/or the City 16 Council . 17 ANSWER: 18 19 4 . All information , studies , or other documents in the 20 possession of the City of Renton , its agents , servants or 21 attorneys , relative to the effect of adult businesses on property 22 values in neighborhoods in the City of Renton . 23 ANSWER: 24 25 5 . All reports , letters , studies or other forms of 26 communication of the City of Renton Police Department or any other 27 law enforcement agency relative to the crime associated with the 28 location of adult businesses in general , and in the City of Renton , 29 in particular. ao ANSWER: 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 1 2 6 . All crime reports generated by the City of Renton 3 Police Department in the past five years relative to any and all 4 crimes associated with adult businesses , together with any and all 5 crime reports relating to prostitution and assault within the City 6 of Renton. 7 ANSWER: 8 9 7 . All studies , reports or other evidence of discussions 10 of any department of the City of Renton in the past five years 11 relative to the control of, proliferation of, or effect of, adult 12 theatres or adult bookstores in or on residential neighborhoods . 13 ANSWER: 14 15 8 . All studies for long range improvements in the 16 neighborhoods where the Roxy Theatre and Renton Theatre are 17 located , together with evidence of any development funds actually 18 spent in those neighborhoods in the past five years . 19 ANSWER: 20 21 9 . All correspondence , memos , or other evidence of 22 communications received by the City of Renton or any of the 23 defendants or their agents or servants from the public relative to 24 Ordinance No . 3526 and all replies thereto . 25 ANSWER: 26 27 10 . All interdepartment memorandums , correspondence or 28 other communications between agents , servants , employees and/or 29 elected ,or appointed officials of the City of Renton relative to 30 Ordinance No . 3526 . 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns & Meyer Page 4 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 • Kirkland,Washington 98033 (206)828-3636 • - 1 ANSWER: 2 3 11 . Any documents in the possession of any of the 4 defendants or their agents or servants which support or in any way 5 bear upon the legislative determination that an adult entertainment 6 use would have a severe adverse impact upon surrounding businesses 7 and residences . 8 ANSWER: 9 10 11 DATED this day of February, 1982 . 12 HUBBARD, BURNS & MEYER 13 14 BY C �'�••� �• Jack R. Burns 15 Attorney for Plaintiffs 16 STATE OF WASHINGTON ) ) ss . 17 COUNTY OF KING ) 18 , being first duly sworn on oath deposes and says : That I am the 19 in the above entitled matter , that I have read the foregoing requests for production of documents and answers thereto , know the 20 contents thereof and believe the same to he true . 21 22 SUBSCRIBED AND SWORN to before me this day of 23 1982. 24 25 Notary Public in and for the State of Washington residing at 26 27 28 29 30 31 ATTORNEYS AT LAW Plaintiffs ' Request for Hubbard, Burns & Meyer Product ion of Documents A PROFESSIONAL SERVICE CORPORATION Page 5 10604 N.E. 38th Place, Suite 105 Kirkland,Washington 98033 (2061 828-3636 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW � V LAWRENCE J� ..--ssWARREIC 100 SOUTH SECOND STREET = L, N 'r 9 18 , ELEPHONE DANIEL KELLOGG 12061 255-8678 POST OFFICE BOX 626 MARK E. BARBER RENTON, WASHINGTON 98057 I February 22, 1982 U. S. DISTRICT JUDG=. Honorable Walter T. McGovern, Judge United States District Court 710 United States Court House Seattle, Washington 98101 RECEIVED Honorable Philip K. Sweigert, Magistrate United States District Court t� 2 304 United States Court House Seattle, Washington 98101 PHILIP K. U.S. MAGI TfATF Re: Playtime Theatres, Inc . , et al vs . City of Renton, et al C82-59M Gentlemen: Under this cover we are enclosing copies to each of you the following documents : 1. Documents in relation to Motion to Dismiss : a. Notice of Motion to Dismiss b. Motion to Dismiss Complaint Pursuant to F.R.C.P. 12(b) (1) and 12 (b) (6) . c. Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss Complaint. 2. Documents relating to setting of Motion to Dismiss before District Court Judge: a. Notice of Motion for Hearing Motion to Dismiss Before District Court Judge. b. Defendants Motion for Hearing Motion to Dismiss Complaint Before District Court Judge. c. Order to Hear Motion to Dismiss Complaint Before District Court Judge. 3 . Documents relating to Application for Permission to Participate: a. Notice of Application for Permission to Participate b. Application for Permission to allow James J . Clancy to participate as counsel. c. Order granting leave to participate. We are given to understand that dispositive motions herein have been referred to U. S. Magistrate Philip K. Sweigert by ex parte order entered herein prior to our appearance. It is our desire that the motion to dismiss pursuant to F.R.C .P. 12(b) (1) and (6) be heard by Judge McGovern. However, we are taking the precaution of furnishing both Magistrate Sweigert and Judge McGovern with copies of our motions and we will confirm with your offices regarding the setting of these motions. Please contact the undersigned or Mark E. Barber of our offices , if there are any questions relating to this matter. Ve my yours • Daniel Kellogg ,/ DK:bjm Enc. cc: Jack R. Burns Clerk of Court, U. S. District Court rF F:B221982 1 WAL I DISTRICT JUDG�R�OLIVED 2 U. S. • Fes„ 3 , � �y � ' 4 SNti'EICEI T 5 1.\$, 141‘ 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC . , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES , INC . , ) NO. C82-59M 9 a Washington corporation. ) ) 10 Plaintiffs ) NOTICE OF MOTION TO DISMISS 11 vs ) ) 12 CITY OF RENTON, a municipal ) corporation, et al . ) 13 ) Defendants . ) • 14 ) 15 PLEASE TAKE NOTICE that the Defendants will move to dismiss 16 the above-entitled action pursuant to rules 12(6) (1) and 12(b) (6) 17 of the Federal Rules of Civil Procedure upon the grounds that 18 the court lacks jurisdiction over the subject matter of the 19 lawsuit and the Plaintiffs have failed to state a claim upon 20 which relief can be based, on March 12 , 1982 at 9 : 30 A.M. or at 21 such other time as the court may hereinafter direct . 22 Defendant is requesting by separate motion that Defendants ' 23 Motion to Dismiss referred to above be set for hearing before 24 United States District Court Judge Walter T. McGovern. 25 DEFENDANTS REQUEST ORAL ARGUMENT UPON THIS MOTION. 26 DATED: February 22, 1982 . 27 28 29 Daniel ellogg, A for for Plaintiff 30 31 32 NOTICE OF MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW ,00 SO.SECOND ST..P.O.SOX Sts RENTON. WASHINOTON 98057 255-8878 i FT82c, 1982 • \AIAL i �r� i . tv,L;e;ov 2 U. S. DISTRICT JUDI-3 r--;••. 8 4 6 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC . , a Washington ) corporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M 11 INC . , a Washington corporation , ' ) MOTION TO DISMISS 12 Plaintiffs, ) COMPLAINT PURSUANT TO F.R.C. P. SECTION 18 vs. ) 12 (b) ( 1 ) and 12 (b) ( 6 ) . 14 THE CITY OF RENTON, et al . , ) 15 Defendants. ) 16 17 COME NOW the Defendants and move to dismiss the above entitled 18 action pursuant to Rule 12 (b) (1 ) and 12 (b) ( 6 ) of the Federal Rules 19 of Civil Procedure, in that the Court lacks jurisdiction over the 20 subject matter of the lawsuit and the plaintiffs have failed to 21 state a claim upon which relief can be based . 22 This motion is based upon the Memorandum of Points and 28 Authorities in Support of Defendants ' Motion to Dismiss which 24 accompany this motion. 25 Defendants further move that this matter be set for hearing 26 and oral argument as soon as practicable. 27 DATED: February 22 , 1982 28 29 \ • 80 MOTION TO DISMISS /� ` PURSUANT TO F.R.C. P. Daniel Kel ogg 81 SECTION 12 (b) (1 ) AND llllll,��(((,,,(((����JJ 12 (b) (6 ) . 82 WARREN & KELLOGG, P.S. ATTORNEYS AT LAW 100 SO.SECOND in..P.O.SOX CIS RENTON. WASHINOTON 98057 255-ee7e 1 221982 1 WAi 2 !J. S. DISTRICT JUDC:- 8 • 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , a Washington ) corporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M 11 INC. , a Washington corporation, ) I MEMORANDUM OF POINTS AND' 12 Plaintiffs, ) AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO 18 vs. ) DISMISS COMPLAINT PURSUANT TO F.R.C. P. 14 THE CITY OF RENTON, et al . , ) SECTION 12 (b) ( 1 ) AND ) 12 (b) ( 6 ) . 15 Defendants. ) 16 17 STATEMENT OF FACTS 18 City of Renton Ordinance No. 3526 is a zoning ordinance 19 entitled "An Ordinance of the City of Renton, Washington , Relating 20 to Land Use and Zoning".. By its terms, adult motion picture 21 theaters, as defined in the ordinance are a prohibited land use 22 within the area circumscribed by a circle which has a radius 28 consisting of the following distances from the following specified 24 uses or zones : i 25 a. Within, or within one thousand' feet of any residential zone, or any single family or multiple 26 family residential use. 27 b. Within one mile of any public or private school . 28 c. Within one thousand feet of any church or other religious facility or institution. 29 d . Within one thousand feet of any public park or P-1 80 zone. 81 The Renton Theater and Roxy Theater, located in the City of 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P— WARREN & KELLOGG. P.S. ATTORNEYS AT LAW SECTION 12 (b) ( 1 ) AND 12 (b) ( 6) P. 1 100!O.ltCOND lT.,P.O.SOX•!• RUSTON, WASHINGTON 08057 fe6•ee78 1 Renton, are owned and operated by the Playtime Theaters, Inc. , a 2 Washington corporation (hereinafter called "Playtime" ) and Kukio $ Bay Properties, Inc. , a Washington corporation ( hereinafter called 4 "Kukio" ) , under lease agreements which provide that such premises 5 are to be used for the purpose of conducting the business of an 6 adult motion picture theater exhibiting adult film fare . Both 7 theaters are located within the prohibited land use area described 8 by City of Renton Ordinance No. 3526 . 9 On January 20 , 1982 , "Playtime" the lessee and operator of the 10 theaters and "Kukio" the owner and lessor of the premises filed a 11 pleading in this Court entitled "Complaint for Declaratory Judgment 12 and Preliminary Injunction" which sought: 18 (1 ) a declaratory judgment declaring City of Renton Ordinance No. 3526 to be unconstitutional as 14 written, in whole and/or in part, and in its threatened application to the plaintiffs ; 16 16 (2 ) a preliminary injunction restraining the defendants and their agents, servants, employees and attorneys, 17 and others acting under their direction and control , from enforcing or executing and/or threatening to 18 enforce and/or execute the provisions of Ordinance No. 3526 in whole and/or in part, by arresting 19 plaintiffs , their agents, servants or employees , and/or threatening to arrest plaintiffs , their 20 agents, servants and employees and/or harassing , threatening to close, or otherwise interferring with plaintiffs ' peaceful use of the premises. 21 22 (3 ) A permanent injunction after final hearing; and (4 ) an award of such damages as plaintiffs have 28 sustained by reason of loss of business , the 24 expenditure of assets to enforce rights guaranteed by the U.S. Constitution, and reasonable attorney ' s 25 fees and other damages as may be established . 26 On January 25, 1982 , the plaintiffs herein caused an "Order to 27 Show Cause Why Temporary Restraining Order Shall Not Issue" to be 28 issued , which set a hearing date of January 29 , 1982 at 1 : 30 p. m. 29 Following a hearing on the issue as to whether a temporary 80 restraining order should issue , United States Magistrate Philip K. 81 Sweigert thereafter filed his "Report and Recommendation" on 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN at KELLOGG, P.S. ATTONNICYA SECTION 12 (b) ( 1 ) AND 12 (b) ( 6 ) P. 2 too•D.SECOND BT•,,P.L O W11OX•IS RINTON, WASNINOTON 98057 =DD-6676 x February 3 , 1982 in which he recommended that the Court deny the 2 Plaintiff ' s request for a temporary restraining order. In his $ transmittal letter, the parties were informed that if no timely 4 objections were filed , the matter would be ready for a ruling by 5 the trial judge not later than February 16, 1982 . 6 On February 8 , 1982 , the Plaintiffs served a copy of a 7 pleading entitled "Amended and Supplemental Complaint for 8 Declaratory Judgment and Preliminary and Permanent Injunction" � 9 which prays for the same relief as was sought in the original 10 complaint which was filed upon January 20, 1982 . 11 On February 19 , 1982 , the Defendant City of Renton 12 (hereinafter called "Renton" ) filed a Civil Complaint for 18 Declaratory Judgment under R. C.W. Chapter 7. 24 in the Superior 14 Court of Washington for King County naming the plaintiffs in this 16 federal action as defendants, entitled City of Renton, a munici al 16 cor oration, laintiff, vs. Pla time Theatre, Inc. , a Washin ton 17 cor oration, and Kukio Ba Pro erties Inc. , a Washin ton 18 corporation defendants. In such complaint, a copy py of which is 19 attached' as Exhibit A " to these points and authorities, the 20 plaintiff is seeking a declaratory judgment to resolve the 21 following controversy and dispute which now exists between the City 22 of Renton and Playtime and Kukio relating to their legal rights, 28 duties and the effect of City of Renton Ordinance No. 3526 upon 24 said Washington corporations : 25 a. Renton claims that City of Renton Ordinance No. 3526 26 is constitutional on its face. Playtime and Kukio claim that said 27 ordinance is unconstitutional on its face. 28 b. Renton claims that City of Renton Ordinance No. 3526j 29 is constitutional as it is applied to the specific land use 80 proposed by Playtime and Kukio. Playtime and Kukio claim that said 81 ordinance is unconstitutional as applied to the specific land use 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG, P.S. SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 3 ATTORNEY•AT LAW 100•O.SECOND tT.,P.O.SOX•i• DENTON, WAXNINOTON 98057 155.8878 ' I 1 proposed by them. 2 c. Renton claims that the component parts of City of 8 Renton Ordinance No. 3526 are independant and severable and that 4 the Superior Court of Washington for King County has the duty and 5 .bligation to interpret the same in a constitutional manner , so as 6 to give effect to the general purpose of the City Council of the 7 City of Renton and its manifest intention. Playtime and Kukio 8 claim that said ordinance is not susceptible of a constitutional 9 construction and is not severable. 10 d. Renton claims that, pursuant to the provisions of 11 City of Renton Ordinance No. 3526 , an "adult motion picture 12 theater" is a permitted use within the B-1 and more intensive land 18 use zoning classificatiorscurrently in use within the City of 14 Renton except to the extent that the specific use is prohibited by 15 the terms of said ordinance, and that there is no necessity for 16 application for a special permit, conditional use or variance prior 17 to the commencement of such specific land use . Playtime and Kukio 18 claim in their "Amended and Supplemental Complaint for Declaratory 19 Judgment and Preliminary and Permanent Injunction" , filed on 20 February 9 , 1982 in this Court, that City of Renton Ordinance No. 21 3526 provides a new use classification within the zoning laws of 22 the City of Renton of an "adult motion picture theater" which is 28 not a permitted use within any zoning classification currently in 24 the City of Renton, thereby requiring Playtime and Kukio to obtain 25 a special permit, conditional use or variance prior to commencements 26 of such use. 27 e. Renton claims that the filing of the federal lawsuit 28 herein is premature in that Playtime and Kukio have failed to 29 exhaust their administrative remedies under the Zoning Code of the 80 City of Renton by reason of their failure to request an 81 administrative determination of the necessity of application for a 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN Ec KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R.C. P. ATTOIIN[T•AT LAW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 4 , '00.O.SECOND ST.,P.O.■OX GIS RLNTON. WA•HINGTON 96057 155-8675 i 1 special permit, conditional use or variance from which appeal may 2 be made from an unfavorable determination as provided in the Zoning ; 8 Code of the City of Renton, and that said administrative remedies 4 are adequate and appropriate . Playtime and Kukio claim that they 5 are not required to exhaust their administrative remedies prior to 6 the filing of a lawsuit raising said claim. 7 8 LEGAL ARGUMENT 9 The plaintiffs were denied a temporary restraining order under! 10 their original complaint. They have abandoned their original 11 complaint, 71 C.J.S . §716 and , pursuant to Rule 15 of the Federal 12 Rules of Civil Procedure, have filed an amended pleading . Within 18 the time allowed to file a response to such amended pleading , 14 Renton has filed a Complaint for Declaratory Judgment under Chapter1 15 7 . 24 R.C.W. wherein it seeks to have the state court render its 16 interpretation of the constitutionality of City of Renton Ordinance 17 No. 3526 and resolve the same issues which the plaintiffs seek to 18 have litigated in this federal court. Because a state civil actions 19 is now pending in the state court involving the same issues and the S0 construction to be given a city ordinance , this federal action must 21 be dismissed for the following reasons: 22 Re : Statutory Construction. 28 ( 1 ) The subject of this action is a city ordinance which is before a state court for its initial 24 interpretation. The only question before this court is whether the city ordinance is unconstitutional on 25 its face and could not be rendered constitutional by any decision of the state court. Stecher v. Askew, 26 432 F. Supp. 997 at 999 . The answer to that question requires a dismissal . 27 ( 2 ) A federal court lacks jurisdiction to 28 authoritatively construe state legislation. U .S . V. 37 Photographs, 402 U.S. 363 . In contrast, a state 29 court is under a constitutional duty to construe state legislation in a constitutional manner. See 80 People ex rel. Busch v. Projection Room Theater, 17 Ca1 . 3d 55 at 56. The cardinal principle of 81 statutory construction in such matters is to save 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG, P.S. ATTOIINEY•AT LAW SECTION 12 (b) ( 1 ) AND 12 (b) ( 6 ) P. 5 +00.O.•ECONO^. O.BOX•'• RENTON. WA•HINOTON 98057 155.8678 1 and not to destroy. Tilton v. Richardson, 403 U .S. 672 at 684 . Further, any additional construction 2 given by a state court to the city ordinance is binding on the federal courts. If the state court 8 says "black" is "white" , the federal court must accept the fact that "black" means "white" . 4 Kingsley Pictures Corp. v. Regents , 360 U .S. 684 . 5 Re: Jurisdiction & Abstention. 6 ( 1 ) Where plaintiffs are unable to plead facts which would establish the "extraordinary circumstance" 7 exception which the U.S. Supreme Court has mandated for federal jurisdiction in civil injunction cases, 8 Huffman v. Pursue, Ltd. , 420 U .S. 592 , the federal courts lack jurisdiction and the state action raises 9 a "bar" to federal action. Moore v. Sims , 442 U .S . 415. For the same reason, abstention is required . 10 ( 2 ) Playtime and Kukio have failed to exhaust their 11 administrative remedy re the zoning interpretation raised in their amended pleading and are concluded 12 - by the rationale expressed in Patsy v. Florida International Univ. , 634 F. 2d 900 , cert. granted by 18 the U.S. Supreme Court and argument scheduled for March 1 , 1982 . 14 16 I 16 WHERE A CIVIL STATE STATUTE OR CITY ORDINANCE IS CONSTITUTIONAL ON ITS FACE OR CAN BE 17 RENDERED CONSTITUTIONAL BY FURTHER INTERPRETA- TION BY A STATE COURT, A PLAINTIFF HAS NO 18 STANDING TO ATTACK THE SAME IN THE FEDERAL COURT ON CONSTITUTIONAL GROUNDS, AND A FEDERAL 19 JUDGE LACKS JURISDICTION AUTHORITATIVELY TO CONSTRUE SUCH STATE LEGISLATION IN THE FIRST 20 INSTANCE. 21 A. The Federal Court Has Jurisdiction Only To Decide If The 22 City Ordinance Is Susceptible To A Construction Which Will 28 Render The Statute Constitutional. 24 A state court may construe a state statute or city ordinance 25 which appears unconstitutional on its face in such a way as to 26 render its application constitutional . Where, as here , the sole 27 question presented to the federal court is the facial , 28 constitutionality of a state statute, plaintiff has standing to 29 assert, and the federal court has jurisdiction to decide, only one 80 issue: to wit, whether the state statute is unconstitutional on 81 its face and could not be rendered constitutional by any decision 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF- DEFENDANTS ' MOTION TO WARREN & KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R.C. P. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 6 +GG SO.SECOND ST.,P.O.■OX SSG RENTON, WASHINGTON 96O57 255.6678 1 of the state court. 2 This rule of law was concisely expressed by the United States $ District Court, M.D. Florida , Tampa division in Stecher v. Askew, 4 432 F.Supp. 997 at 999 (1977 ) : 5 "While as a general rule a State Supreme Court may construe a statute which appear unconstitutional on its face 6 in such a way as to render its application constitutional , see, e .g. , Wainwright v. Stone, 414 U .S. 21 (94 S.Ct. 190 , 38 7 L. Ed . 2d 179 ) ( 1973 ) , there may be cases in which such a construction, even though attempted, may be mi possible. Under 8 the facts alleged in the complaint, the plaintiff has standing to assert that this statute presents such a situation . The 9 plaintiff has standing as to this issue : to wit, whether the statute is unconstitutional on its face and could not be 10 rendered constitutional by any decision of the Florida Supreme Court. " (Emphasis added ) . 11 12 In short, the federal court has jurisdiction to decide the 18 question of jurisdiction . U.S . v. United Mine Workers of America, 14 330 U.S. 258, 67 S.Ct. 677 , 91 L. Ed . 884 ( 1974 ) . Where a state 15 statute is susceptible to a construction which will render the 16 statute constitutional , the federal court must find that it has no 17 'urisdiction to proceed further, and must allow the matter to 18 return to the state court system for an authoritative construction 19 by the state court. This result is mandated by the fact that a 20 federal court lacks jurisdiction to authoritatively construe state 21 le• islation. U.S . v. Thirty-Seven Photographs , 402 U .S. 363 , 28 22 L. Ed . 2d 822 , 91 S.Ct. 1400 (1971 ) . See Stecher v. Askew, supra, at 28 999, where the court correctly stated : 24 "In determining whether plaintiff has succeeded at this task, we 'must take the statute as though it read precisely as the 25 highest court of the State has interpreted it. ' Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 , 273 , 60 S.Ct. 26 523, 525 , 84 L.Ed . 744 (1940 ) . Furthermore , 'we lack jurisdiction authoritatively to construe state legislation. " 27 United States v. Thirty-Seven Photographs , 402 U .S. 363 , 369 , 91 S.Ct. 1400 , 28 L. Ed . 2d 822 (1971 ) . " 28 29 For the plaintiffs to succeed in this Court, they must 80 successfully demonstrate that no further interpretation could bring 81 the city ordinance under question within the confines of the 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG. P.S. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 7 Ioo SO.SECOND ST.,P.O.SOX S111 RENTON. WASHINOTON 98O57 255.6678 i 1 protections insured by the Constitution. If there is any saving 2 interpretation which the state court could make , plaintiffs must 8 demonstrate that the state courts will not so construe it. As the 4 Court said in Stecher, supra, at page 999 : 6 "For the plaintiff to succeed in this Court, he must successfully demonstrate that no further interpretation could 6 bring this statute within the confines of the tests set out in Chaplinsky. In subsequent proceedings under this statute , 7 however , there is absolutely no obstacle to the Florida courts ' further defining the words 'Necessarily incite a 8 breach of the peace' which were incorporated into this statute ! by State v. Mayhew, 288 So. 2d 243 (Fla. 1973 ) , as meaning 9 'words likely to cause an average addressee to fight. ' Such construction would save the statute , and the plaintiff cannot 10 demonstrate that the Florida courts will not so construe it. " (our emphasis. ) 11 12 While it is true that a state defendant may consent to have 18 the federal court make that determination , see Ohio Bureau of 14 Employment Services v. Hodory, 431 U.S. 471 , 480 , that is not the 15 case here where the City of Renton has elected to have the matter 16 decided by the state court. 17 B. The State Judiciary Must Be Presented With An Opportunity' 18 To Consider And Interpret The State Statute And If Necessary , 19 Invoke A Limiting Construction. 20 The rationale which requires a federal court to defer to the 21 state court in the instance of the first interpretation is clear . 22 There is a marked difference in the way in which the state and 28 federal courts approach the constitutional issue regarding state 24 legislation. Largely because of the doctrine of separation of 25 powers , the rule has evolved that state courts are obliged to 26 render a construction of state legislation which will arrive at a 27 constitutional result. In People ex rel. Busch v. Projection Room 28 Theater, 17 Ca1. 3d 55 at 56 , the California Supreme Court noted , in 29 this context, at page 336 : 80 "Furthermore, the United States Supreme Court recently emphasized within the foregoing context that courts have an 81 obligation to construe statutes in such a way as to avoid 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN & KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 8 loos°•SECOND ST..P.O.SOX.t. RENTON, WASHINOTON 98057 Y55-8678 A 1 serious constitutional doubts . " (Our emphasis . ) 2 and , at page 338 : "We are obliged to construe and interpret legislation in 3 a manner which will uphold its validity. (Citations ) . Thus , 4 the courts have held that provision for a prior adversary hearing may be implied by law in otherwise silent statutory 6 provisions. " 6 Because federal courts do not bear the same relationship to state 7 legislatures and don' t function in the same manner as regards state 8 legislation, see U.S . v. 37 Photographs , supra, the end result is 9 certain to differ. 10 That this Court should allow the Washington State courts the 11 .pportunity to construe the ordinance and , if necessary, to invoke 12 a limiting construction is clear. In Erznoznik v. City of 18 Jacksonville, 422 U.S . 205 , 95 S. Ct. 2268 , 45 L. Ed . 2d 125 (1975 ) , 14 the Supreme Court, in disposing of a challenge to a city ordinance 16 regulating the types of movies that could be shown by a drive-in • theater whose screen was visible from the public streets , made the 16 17 following observation: "This Court has long recognized that a demonstrably over-broad 18 statute or ordinance may deter the legitimate exercise of 19 First Amendment rights . Nonetheless , when considering a facial challenge it is necessary to proceed with caution and 20 restraint, as invalidation may result in unnecessary interference with a state regulatory program. In 21 accommodating these competing interest the Court has held that a state statute should not be deemed facially invalid unless 22 it is not readily subject to a narrowing construction by the state courts , see Dombrowski v. Pfister, 380 U .S. 479 , 497 , 85 23 S .Ct. 1118 , 1126 , 14 L.Ed . 2d 22 (1965 ) . . . , 422 U .S . at 216 , 95 S.Ct. at 2276. In Time, Inc. v. Hill, 385 U .S . 374 , 67 24 S .Ct. 534 , 17 L.Ed . 2d 456 ( 1967 ) , the Court refused to declare a New York privacy statute invalid on its face , noting that 26 the New York courts had ' been assiduous in construing the statute to avoid invasion of the constitutional protections of ; 26 speech and press . We , therefore , confidently expect that the New York courts will apply the statute consistently with the 27 constitutional command . ' Id . at 297 , 87 S.Ct. at 547 . " (Emphasis added ) . 28 29 As was stated by Justice Burger in Tilton v. Richardson, 403 U . S. 80 672 at 684 on the issue of "severability" and the importance of the 81 statutory construction factor : 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN ec KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R.0. P. ATTOIINEY•AT LAW SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 9 100 SO.SECOND•T..P.O.sox•E• RENTON. WASHINGTON 08087 pas-e878 1 "This circumstance does not require us to invalidate the entire Act, however. 'The cardinal principle of statutory 2 construction is to save and not to destroy. ' N. L.R.B . v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 30 , 81 L. Ed . 893 , 8 907, 57 S. Ct. 615, 108 ALR 1352 (1937 ) . In Champlin Rfg. Co. v. Commission, 286 U.S. 210 , 234 , 76 L. Ed . 1062 , 1078 , 52 4 S .Ct. 559, 86 ALR 403 (1932 ) , the Court noted 'The unconstitutionality of a part of an Act does not necessarily 5 defeat . . . the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted 6 those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is 7 left is fully operative as law. ' Nor does the absence of an express severability provision in the Act dictate the demise 8 of the entire statute . E. g. , United States v. Jackson, 390 U.S. 570 , 585 n. 27, 20 L.Ed . 2d 138, 148 , 88 S.Ct. 1209 9 (1968 ) . " 10 Even were this court to find that certain parts of City of 11 Renton Ordinance No. 3526 were unconstitutional on their face , the 12 issue as to whether such parts were severable would still have to 18 be decided . See, generally, Sutherland Statutory Construction , 14 "Severability" , Chapter 44 at page 335-368 and O'Connell v. Conte, 16 456 P. 2d 317 (Wash. 1969 ) . That issue is more properly a matter 16 for the state court. In a recent statement confirming the 17 importance of the " statutory construction" factor and the right of 18 state courts to interpret city ordinances, the U.S. Supreme Court 19 in Metromedia, Inc. v. San Diego, U.S. , 69 L.Ed . 2d 800 20 (July 2, 1981 ) ( involving an appeal of a city ordinance after 21 decision by the California Supreme Court) remanded the case back to 22 the California Supreme Court for further statutory construction by 28 the state court, notwithstanding it held the ordinance to be 24 unconstitutional on its face . See in this regard , Justice White ' s 26 opinion announcing the judgment of the Court at page 823 , fn. 26, • 26 wherein he addresses the issue of severability and the right of 27 state courts in that regard : 28 "Although the ordinance contains• a severability clause , determining the meaning and application of that clause are 29 properly responsibilities of the state courts. See Dombrowski; v. Pfister, 380 U.S . 479 , 497 , 14 L.Ed . 2d 22 , 85 S.Ct. 1116 80 ( 1965 ) ( 'The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction , the 81 statutory provisions on which the indictments are founded are 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG. P.S. AW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 10 ATTONO ST .P.YS AT O. goo so.•[cono sr.,►.O.■ox ei• RCNTON. WASNINOTON 98057 255.8678 void on their face; until an acceptable limiting construction 1 is obtained , the provisions cannot be applied . ' ) ; Liggett Co. 2 v. Lee, 288 U .S. 517 , 541 , 77 L.Ed. 929 , 53 S. Ct. 481 , 85 ALI( 699 ( 1933 ) ( 'The operation of this [severability clause) 8 consequent on our decision is a matter of state law. While wed have jurisdiction of the issue , we deem it appropriate that we 4 should leave the determination of the question to the state court. ' ) ; Dorchy v. Kansas, 264 U .S. 286 , 291 , 68 L.Ed . 686 , 5 44 S. Ct. 323 ( ' In cases coming from the state courts, this Court, in the absence of a controlling state decision may , in 6 passing upon the claim under the federal law, decide , also the question of severability. But is is not obliged to do so . 7 The situation may be such as to make it appropriate to leave the determination of the question to the state court. ' ) . This 8 rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes 9 infringing on protected speech. Compare United States v. Thirty-Seven Photographs, 402 U.S. 363 , 28 L.Ed . 2d 822 , 91 10 S .Ct. 1400 ( 1971 ) , with Freedman v. Maryland, 380 U . S. 51 , 60 , 13 L. Ed . 2d 649 , 85 S.Ct. 734 ( 1965 ) . Since our judgment is 11 based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance , the California 12 courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is suceptible to 18 this treatment. " 14 II 15 THE BASIC PRINCIPLES OF FEDERALISM AND COMITY EXPRESSED TN HUFFMAN V. PURSUE LTD. , AND 16 SUBSEQUENT CASES REQUIRE THAT WHERE THE ISSUE INVOLVES CIVIL INTERESTS RELATING TO STATE 17 SOVEREIGNTY , SUCH AS THE ZONING POWER HEREIN INVOLVED, THE FEDERAL CLAIM MUST BE PRESENTED 18 ) TO THE STATE FORUM IN THE FIRST INSTANCE IF THAT FORUM IS AVAILABLE AND THE STATE 'S 11TH 19 AMENDMENT PRIVILEGE i+AS NOT BEEN WAIVED. Y0 When the need for abstention in civil public nuisance 21 abatement litigation was before the Court seven years ago in 22 Huffman v. Pursue Ltd. , 420 U . S. 592 , 43 L. Ed . 2d 482 , 95 S.Ct. 1200 28 (Mar. 18 , 1975 ) the Allen County, Ohio Prosecutor argued that the 24 U.S . District Court lacked jurisdiction and was required to dismiss 25 the Civil Rights Action. The High Court' s order in Huffman, supra, ; 26 on the jurisdictional issue was equivocal, at pg . 612 : 27 " . . .We therefore think that this case is appropriate for remand so that the District Court may consider whether. . . the 28 District Court may assume jurisdiction under an exception to the policy against federal judicial interference with state 29 court proceedings of this kind. " (Our emphasis . ) 80 Upon remand , and over the prosecutor' s objection , U.S. District 81 Judge Walinski dismissed the case on the ground of mootness , and 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN & KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R. C. P. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 1 2 (b) ( 6 ) P. 11 100 SO.SECOND ST.,P.O.sox!!a RENTON. WASHINOTON 98057 155.8878 ' � I • j the basic question of jurisdiction was never resolved . 2 During the 1976 October Term , Huffman v. Pursue Ltd. , supra, 8 was further applied by the U.S. Supreme Court in other civil cases : 4 Judice v. Vail, 430 U.S. 327, 51 L.Ed. 2d 376 , 97 S.Ct. 1211 (Mar. 5 22 , 1977 ) and Trainor v. Hernandez , 431 U.S. 434 , 52 L. Ed . 2d 486 , 6 496 , 97 S.Ct. 1911 (May 31 , 1977 ) and distinguished in Ohio Bureau) 7 of Employment Services v. Hodory, supra. In his dissent in Judice, ' I 8 Justice Stewart noted a significant difference between Pullman 9 abstention and Younger-Huffman abstention, at pg . 348 : 10 " . . .Both types of ' abstention' of course , serve the common goal of judicial restraint as a means of avoiding undue 1] federal interference with state goals and functions. But there is a significant difference in result between the two . 12 Under Pullman abstention, the federal court may retain jurisdi,ction pending state-court interpretation of an 18 ambiguous statute , while under Younger it may not. " (Our emphasis. ) 14 • 15 See also Trainor v. Hernandez , 431 U.S. 434 , 445 , 52 L.Ed . 2d 486 , 16 496, 97 S.Ct. 1911 (May 31 , 1977 ) and Moore v. Sims, 442 U .S. 415 , 17 430, 60 L.Ed . 2d 994 . 1007 , 99 S.Ct. 2371 (June 11 , 1979 ) , citing 18 the Trainer v. Hernandez text noted above , in holding that the 19 In Trainor v. Hernandez, supra, the High Court held that where Huffman v. Pursue Ltd. applies, the Court should dismiss the case: 20 ".. .For a federal court to proceed with its case rather than to remit appellees to their remedies in a pending state enforcement suit would 21 confront the State with a choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its 22 enforcement proceedings pending decision of the federal court at some unknown time in the future. It would also foreclose the opportunity of the 28 state court to construe the challenged statute in the face of the actual federal constitutional challenges that would also be pending for decision 24 before it, a privilege not wholly shared by the federal courts. Of course, in the case before us the state statute was invalidated and a federal 25 injunction prohibited state officers from using or enforcing the attachment statute for any purpose. The eviscerating impact on many state enforcement 26 actions is readily apparent. This disruption of suits the State in its sovereign capacity, when combined with the negative reflection on the 27 State's ability to adjudicate federal claims that occurs whenever a federal court enjoins a pending state proceeding, leads us to the conclusion that 28 the interests of comity and federalism on which Younger and Samuels v. Mackell primarily rest apply in full force here. The pendency of the state 29 court action called for 'restraint l the federal court and for the dismissal of appellees' complaint unless extradordinary circumstances were 80 present warranting federal interference or unless their state remedies were inadequate to litigate their federal due process claim." (Our emphasis. ) 81 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) ( 6) P. 12 too so.SECOND ST.,P.O.SOX S:S RENTON. WASHINGTON 98057 YDS•8678 • i 1 principles of Younger-Huffman acted as a bar. 2 While the language of the Court in Huffman v. Pursue, Ltd. , 3 supra, Judice v. Vail, supra, Trainer v. Hernandez , supra , and 4 Moore v. Sims , supra, does not specifically hold that federal 5 "jurisdiction" is in question, that appears• to be at the very core 6 of the problem. If not, what would be the reason for 7 distinguishing between Pullman abstention and Younger-Huffman 8 abstention? 9 That a federal court lacks " jurisdiction" in matters involving 10 state sovereignty, where the trial facts show that the 11 constitutional claim can be raised and fully litigated in a civil 12 action in the state court finds support in the rationale expressed 18 in Allen v. McCurry, U.S. , 66 L.Ed . 2d 308 , 101 S .Ct. 14 (Dec. 9 , 1980 ) . In Allen et al. v. McCurry, supra , a majority of 15 the U.S . Supreme Court had occasion to rethink the legislative 16 intent and rationale which authorized federal jurisdiction in Civil 17 Rights cases, ( 42 U .S . C. section 1983 ) . In that decision , the 18 majority made it clear that, except where the claim was made that a 19 state statute was unconstitutional on its face, it was not intended1 20 by Congress that the federal courts should have jurisdiction over a 21 federal cause of action where the state courts stand ready and 22 willing and were available (as here ) to allow full litigation of 23 the constitutional claim, See Allen et al. v. McCurry, supra, at 24 page 317: 25 " . . .To the extent that it did intend to change the balance of power over federal questions between the state and 26 federal courts, the 42d Congress was acting in a way thoroughly consistent with the doctrines of preclusion. In 27 reviewing the legislative history of § 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal 28 remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was 29 inadequate to allow full litigation' of a constitutional claim, and where state procedural law, though adequate in theory, was - 80 inadequate in practice. 365 U.S. at 173-174 . In short, the federal courts could step in where the state courts were 81 unable or unwilling to protect federal rights . Id . , at 176 . " 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S. ATTORNEY/AT LAW SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. 13 too SO.•ECONO ST.,P.O.■OX GIS RENTON, WASHINOTON D8057 255.8678 1 (Our emphasis. ) 2 See also, Patsy v. Florida International University, et al. , 634 8 F. 2d 900 , at 910-912, cert. granted on October 5 , 1981 , and 4 argument in the U.S. Supreme Court set for the week of March 1 , 5 1982. In other words , it can no longer be claimed that every • i 6 person asserting a federal right is entitled to one unencumbered 7 •pportunity to litigate that right in a federal district court, at 8 I•age 319 : 9 " . . .The actual basis of the Court of Appeals ' holding appears to be a generally framed principle that every person 10 asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district 11 court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is 12 difficult to discern . It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the 18 jurisdiction of the federal district courts to the wisdom of Congress . And no such authority is to be found in § 1983 — I ' 14 itself . " (Our emphasis. ) 15 It would seem, therefore, that the constitutional rule must 16 evolve that, as to the federal civil rights claims herein which do 17 not qualify under the exception of Huffman, supra, and which 18 interfere with the zoning power and the sovereign right of a state 19 to litigate zoning matters in its own judicial system, the party 20 must first assert the federal claim in a state action , and it is 21 irrelevant in this case that Playtime and Kukio jumped the gun and 22 filed their declaratory judgment in the federal district court. 28 Accordingly, a federal court would not have jurisdiction to 24 hear a federal declaratory judgment action unless and until the 25 state has waived its privilege under the llth Amendment, Hans v. 26 Louisiana, supra; Ohio Bureau of Employment v. Hodory, supra ; Moore ' I 27 v. Sims, supra, at 429 , 60 L.Ed. 2d at 1007 ; Samuels v. Mackell , 4011 • i 28 U.S . 66, 27 L.Ed. 2d 688, 91 S.Ct. 764 , inasmuch. as Playtime and 29 Kukio have an adequate due process remedy in the state court. 80 /// /// /// 81 /// /// /// 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG. P.S. ATTORNEY,AT LAW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 14 Soo,o.SECOND,T..P.O.,Ox el, RENTON. WA,NINOTON 98057 255-8678 1 III HAVING FAILED TO EXHAUST THEIR ADMINISTRATIVE 2 REMEDY IN THE STATE ZONING PROCESS, PLAYTIME 3 AND KUKIO MAY NOT RELY UPON A "STRAWMAN" CONSTRUCTED UPON AN ERRONEOUS ZONING 4 INTERPRETATION , AS A BASIS FOR FEDERAL JURISDICTION. 6 6 In what appears to be an attempt to bring themselves within 7 the favorable rule of law expressed in some recent decisions 8 restricting the use of conditional use permit type zoning 9 legislation for adult book stores, see City of Imperial Beach v. 10 Palm Avenue Books, 115 Cal .App. 3d 134 , 171 Cal .Rptr. 197 and Ebel 11 v. City of Garden Grove, 120 Cal .App. 3d 399, 176 Cal .Rptr . 312 . 12 Playtime and Kukio have urged in their amended complaint that City j 18 of Renton Ordinance No. 3526 provides a new use classification 14 which is not a permitted use within any zoning classification 15 currently in the City of Renton, thereby requiring them to obtain a 16 special permit, conditional use or variance prior to commencement 17 of such use . That interpretation is contrary to the well 18 publicized administrative view of the City of Renton that an "adult 19 movie picture theater" is a permitted use within the B-1 and more 20 intensive land use zoning classifications currently in use within 21 the City of Renton except to the extent that the specific use is 22 prohibited by the terms of said ordinance, and that there is no 28 necessity for application for a special permit, conditional use or 24 variance prior to the commencement of such specific land use . 25 Having failed to exercise their administrative remedy which is 26 available to them in the state zoning process , Playtime and Kukio 27 are concluded from urging that principle as a basis of federal 28 jurisdiction under the well reasoned case of Patsy v. Florida 29 International Univ. , 634 F. 2d 900 , cert. granted by the U.S. 80 Supreme Court and argument schedualed for March 1 , 1982 . 81 Under its analysis in Patsy, supra, the Fifth Circuit, sitting 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARREN & KELLOGG. P.S. SECTION 12 (b) (1 ), AND 12 (b) (6 ) P. 15 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX 1311 RENTON, WASHINGTON 98057 255-B678 1 en banc, concluded that the Supreme Court cases upon exhaustion of 2 administrative procedures merely condemn a "wooden application" of 8 the exhaustion requirement in section 1983 cases . See also , Patsy , 4 supra, at page 909 where the Court concludes that the "Ninth 5 Circuit ' has not gone so far' as to infer a blanket no - exhaustion - 6 under - any - circumstances rule from the Supreme Court cases . 7 Canton v. Spokane School District #18 , 498 F. 2d 840 , 844 ( 9th Cir . , 8 1974) " . 9 Dismissal of this cause of action will not be a "wooden 10 application" of the exhaustion requirement in section 1983 cases . 11 Here Playtime and Kukio create their own "strawman" by attempting 12 to impose upon the Defendants a construction of the Defendant' s own 18 zoning code which is contrary to the construction placed upon the 14 zoning code by the City as evidenced by the allegations of the 16 Complaint for Declaratory Judgment under R.C.W . Chapter 7 . 24 filed 16 in the King County, Washington, Superior Court . This Court can 17 take judicial , notice of such construction based upon that pleading. 18 Plaintiffs ought to have sought a construction by the appropriate 19 administrative authority of the City pursuant to the provisions of 20 the zoning code of the City of Renton, or in the alternative , should 21 have sought the jurisdiction of the state court to obtain a construc- 22 tion of the provisions of this zoning ordinance . 23 CONCLUSION 24 Because of the pending action in the state court, the federal 25 complaint should be dismissed for failure to state a claim upon 26 which federal relief can be based, upon abstention grounds , and for 27 lack of jurisdiction to decide the controversy which has been pleaded . 28 DATED: February 22 , 1982 . 29- 80 DANI KE LLO GG / of Warren. & Kellogg , '�.S . 81 Attorneys for Defendants 82' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P . WARREN & KELLOGG. P.S. ATTORNEYS SECTION 12(b) ( 1) AND 12(b) ( 6 ) P . 16 t00 f0.SECOND ST.. P.O O..SOX•!f RENTON. WASHINGTON 95057 255-ee7e 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , ) a Washington corporation, ) 11 et al , ) NO. C82-59M 12 Plaintiffs ) ) AFFIDAVIT OF DELORES A. MEAD 13 vs ) ) 14 THE CITY OF RENTON, et al . ) 15 Defendants . ) 16 — ) THE CITY OF RENTON, ) 17 ) Plaintiff ) NO. C82-263R 18 ) vs ) 19 ) PLAYTIME THEATRES , INC . , a ) 20 Washington corporation, ) et al, ) 21 ) 22 Defendants. ) 2' STATE OF WASHINGTON) 24 ) ss COUNTY OF KING ) 25 DELORES A. MEAD, being first duly sworn on oath, deposes 26 and says : 27 1 . I am the City Clerk of the City of Renton and as such 28 AFFIDAVIT OF DELORES A. MEAD WARREN & KELLOGG. P.S. P . 1 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8678 1 I am the custodian of the records for enacted ordinances 2 and resolutions . 3 2 . The City Council, at its regular meeting on June 14, 4 1982, enacted Ordinance No. 3637 , a copy of which is attached 5 hereto and by this reference incorporated herein as if fully 6 set forth. By the terms of the ordinance, it will become 7 effective 30 days after its publication. The ordinance was 8 published on June 18, 1982 . 9 1 /5/ 0 Delores A. Mead 11 12 SUBSCRIBED AND SWORN to before me this day of June, 1982. 13 14 Notary Public in and for the State 15 of Washington, residing at Renton 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIDAVIT OF DELORES A. MEAD WARREN & KELLOGG. P.S. P . 2 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 ..1\ ..O 22 . • I.."' A` I r - pjllLit' K. SWEIGERT ._.. MAGISTRATE i1.5. 1 2 '4: 1982 2 rbAL i 3 J. S. DISTRICT JUDGE 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE WESTERN DISTRICT OF WASHINGTON 8 PLAYTIME THEATRES, INC. , a ) 9 Washington corporation, and ) KUKIO BAY PROPERTIES , INC. , ) NO . C82-59M 10 a Washington corporation, ) 11 Plaintiff )) NOTICE OF MOTION FOR HEARING ' 12 ) MOTION TO DISMISS BEFORE vs ) DISTRICT COURT JUDGE ) 13 THE CITY OF RENTON, a ) municipal corporation, ) 14 ) 15 Defendants. ) ) 16 PLEASE TAKE NOTICE that Defendants ' notion to set motion 17 to dismiss before United States District Court Judge Walter T. 18 McGovern will be brought on for hearing on March 12, 1982 at 19 9 : 30 A.M. or at such other time as the courtmay hereinafter 20 direct. 21 This Motion is made in conjunction with Defendants ' 22 Motion to Dismiss . 23 DATED: February 22, 1982 . 24 25 26 Daniel Kellogg, Att me r Plaintiff 27 28 29 30 31 NOTICE OF MOTION FOR HEARING TO 32 DISMISS BEFORE DISTRICT COURT JUDGE WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.BOX SUS RENTON. WASHINGTON 98057 255-8878 RECEIVED 3 2 1 198Z 1'1';! ry r• <•1 •E GERT 1 ► . is t,L UVL. L•S. 1,:.1;..1;:TRAT1� 2 S. DISTRICT JUDG: 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE WESTERN DISTRICT OF WASHINGTON 8 PLAYTIME THEATRES, INC. , a ) RRCIi1VE.p Washington corporation, and ) 9 KUKIO BAY PROPERTIES, INC. , a ) Washington corporation, ) C82-59M 10 Plaintiffs ) DEFENDANTS ' P:[OTI I�j 0;„ S�j'�IGER1, 11 v. ) HEARING OF MOTION TO I , .MATE COMPLAINT BEFORE DISTRICT 12 CITY OF RENTON, a municipal ) COURT JUDGE 13 corporation, et al. , ) ) 14 Defendants . ) ) 15 COME NOW the Defendants and move the Court for an order 16 setting Defendants Motion to Dismiss Complaint, dated 17 February 22, 1982, before United States District Court Chief 18 Judge Walter T. McGovern. 19 By order of reference, depositive motions herein have 20 been referred to U. S . Magistrate Philip K. Sweigert . 21 Dated: 2 21 /582. 22 C 23 24 Daniel Kellogg, Att me Defendants 25 26 27 28 29 30 31 DEFENDANTS MOTION FOR HEARING OF MOTION TO DISMISS COMPLAINT BEFORE DISTRICT 32 COURT JUDGE WARREN & KELLOGG. P.S. ATTORNLT.AT LAW tOO SO.SECOND ST.,P.O.SOX Of• RLNTON. WASHINGTON 98057 255-8878 • RECEIVEDEA E 2 2 1982 l'I.ILIP I.. S\i LI(;ERT u•S. IrMAGISTRATE 1 I . IU;CI.LI�' 2 --'• S. DISTRICT JUDGE 3 4 5 6 UNITED STATES DISTRICT COURT RECEIVED FOR THE WESTERN DISTRICT OF WASHINGTON 7 (;) 8 PLAYTIME THEATRES, INC. , a ) Washington corporation, and ) 1'HILIP K. SW7EIGERT 9 KUKIO BAY PROPERTIES , INC . , ) NO . C82-59M U.S. MAGISTRATE a Washington corporation, ) 10 ) Plaintiffs ) ORDER TO HEAR MOTION TO 11 ) DISMISS COMPLAINT BEFORE 12 vs ) DISTRICT COURT JUDGE CITY OF RENTON, a municipal ) 13 corporation, et al. , ) ) 14 Defendants . ) 15 ) THIS MATTER having come on regularly for hearing upon the 16 Defendants motion to set a hearing upon defendants motion to 17 dismiss before United States District Court Judge, Walter T. 18 McGovern, and the court having considered the files and 19 records herein and being fully advised in the matter, it is 20 ORDERED as follows : 21 1 . Defendants motion to dismiss complaint pursuant 22 to F.R.C. P. 12(b) (1) and 12(b) (6) is set for hearing before 23 United States District Court Judge, Walter T. McGovern on 24 March 12, 1982 at 9 : 30 A.M. or at such other time as the court 25 may direct. 26 27 Dated: 28 29 Walter T. McGovern 30 District Court Judge 31 32 ORDER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW tOO SO.SECOND ST.,P.O.SOX SSS RENTON. WASHINGTON 98057 258.8578 REc,L1y ED 2 1982 1 1'111!1 P ►-t�- j . �'�;C' � 11.S, 11 C'l�':IGERT 2 J. S. DISTRICT i;, 1s,T'1tATF 3 4 • 5 • 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC. , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES, INC. , ) NO . C82-59M 9 a Washington corporation, ) 10 Plaintiffs ) NOTICE OF APPLICATION FOR ) PERMISSION TO PARTICIPATE 11 vs ) 12 CITY OF RENTON, a municipal ) corporation, et al . ) 13 ) Defendants . ) 14 ) 15 PLEASE TAKE NOTICE that Defendants Application for 16 Permission to Participate will be brought on for hearing 17 on March 12, 1982 at 9 : 30 A.M. or at such other time as the 18 court may hereinafter direct . 19 DATED: February 22, 1982 20 21 „ereee0,0/ 22 Daniel Kellogg 23 24 25 26 27 28 29 30 31 32 NOTICE OF APPLICATION FOR PERMISSION TO PARTICIPATE WARREN & KELLOGG. P.S. mirm%%%%%♦T -JW sr—.a- r.�whn�a qe's� RECEIVED 1 2 '`. S. DISiRIC._i. 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 10PLAYTIME THEATRES , INC . , a ) Washington corporation, and ) 11KUKIO BAY PROPERTIES , INC. , ) a Washington corporation, ) NO. C82-0059M 12 ) Plaintiffs , ) •13 ) vs . ) APPLICATION FOR ' 14 ) PERMISSION TO PARTICIPATE THE CITY OF RENTON, et al . , ) 15 ) Defendants . ) 16 17 COME NOW the Defendants , by their counsel of record, and 18nove the Court for permission to allow JAMES J. CLANCY to participate 19as counsel in this matter in association with WARREN & KELLOGG, P . S . , 20ettorneys of record for Defendants , and represent as follows : 21 1 . MR. CLANCY is admitted to practice before the Supreme 2ourt of the United States . 23 2. MR. CLANCY neither resides nor maintains an office for 24the practice of law in the Western District of Washington. 25 3. MR. CLANCY shall be joined in appearance and participation 26herein by LAWRENCE J . WARREN, DANIEL KELLOGG, MARK E . BARBER and 2'?DAVID M. DEAN, of Warren & Kellogg, P . S . , Attorneys of record for 28Defendants , all of whom maintain offices for the practice of law • 29and are admitted to practice before this Court , and who shall sign 30a11 pleadings prior to filing and otherwise comply with CR 10(e) . 31 4. MR. CLANCY has limited his practice to principally matters 32relating to litigation of First Amendment rights , and claims WARREN & KELLOGG. P.S. ATTORNEYS AT LAW APPLICATION TO PARTICIPATE - 1 ,oO SO.SECOND WT.,P.O.SOX SRO RENTON. WASHINGTON 98057 255-8878 1 relating thereto , and as a consequence , has acquired an expertise 2shared by few people . MR. CLANCY has represented other municipal 3corporations involving claims similar to those herein. 4 5 . MR. CLANCY understands that he is charged with knowledge 5 of and compliance with all applicable local rules . 6 6. MR. CLANCY has not been disbarred or formally censured 7by a Court of record or by a state bar association. There are no 8pendipg disciplinary proceedings against MR. CLANCY. 9 7 . The undersigned attorney for the Defendants represents 10that he is authorized and will be prepared to handle the matter , llincluding the trial thereof, in the event MR. CLANCY is unable 12to be present upon any date assigned by the Court . •13 WHEREFORE , the Defendants pray that the Court grant leave 14for JAMES J. CLANCY to participate in this case as counsel for 15Defendants in association with Warren & Kellogg , P. S . , attorneys 16of record for Defendants . 17 DATED: February 19 , 1982 . 18 19 C/ DANI L OGG 20 of Warren & Kello . . 21 Attorneys for Defendants 22 23 24 25 26 27 28 29 30 31 32 APPLICATION TO PARTICPATE - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX SSS RENTON. WASHINGTON 98087 235.8878 RECEIVED f;I PHI'IP I:. S\EIGERz v 2 . 198Z 1.1.S. I,I AGIUTRATF 1 i L1; I . iYiLuV v L. 2 'J. S. DISTRICT JUDO 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES , INC. , a ) 8 Washington corporation, . and ) KUKIO BAY PROPERTIES, INC. , ) 9 a Washington corporation, ) NO. C82-59M 10 Plaintiffs , ) 11 vs ) ORDER GRANTING LEAVE TO PARTICIPATE 12 CITY OF RENTON, a municipal ) corporation, et al. ) 13 ) Defendants . ) 14 ) 15 THIS MATTER having come on regularly upon the Defendants 16 Application for Permission to allow JAMES J. CLANCY to 17 participate as counsel in this matter in association with 18 Warren & Kellogg, P. S. , attorneys of record for Defendants , 19 and it appearing that the application complies with General 20 Rule 2(d) of the Local Rules for the Western District of 21 Washington, and the court having considered the records and 22 files herein and being fully advised in this matter, it is 23 hereby ORDERED as follows : 24 1 .. Leave is granted for JAMES J . CLANCY to participate 25 in this case as counselfor defendants in association with 26 Warren & Kellogg, P. S . , attorneys for Defendants . 27 Dated: 28 Walter T. McGovern 29 District Court Judge 30 31 32 ORDER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX 626 RENTON, WASHINGTON 98057 255.8878 'LL • RECEIVED . r 2 (4 1982 1 .17 > � '. S. DISTRIC f JUT- i J 5 MACETRATE 2 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES , INC. , ) 8 a Washington corporation, ) and KUKIO BAY PROPERTIES , ) NO. C82-59M 9 INC. , a Washington ) corporation, ) 10 ) DESIGNATION OF PERSON TO Plaintiffs ) TESTIFY AT DEPOSITION 11 ) 12 vs ) ) CITY OF RENTON, a municipal ) 13 corporation, et al ) • 14 ) ) 15 TO : PLAYTIME THEATRES, INC . , a Washington corporation, and KUKIO BAY PROPERTIES , INC. , a Washington corporation; 16 AND TO : JACK R. BURNS, Attorney for Plaintiffs 17 18 PLEASE TAKE NOTICE that the Defendants designate 19 DAVID R. CLEMENS, Director of Policy Planning of the City of 20 Renton, to testify concerning the designated matters identified 21 in the Notice of Deposition Upon Oral Examination directed to 22 the Defendants dated February 17, 1982 . 23 DATED: February 22, 1982 24 25 R. '-'3y 26 Danie Kellogg 27 28 29 30 31 32 DESIGNATION OF PERSON TO TESTIFY AT DEPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX 112S RENTON. WASHINGTON 98057 255.8678 RECEIVED • t;` IV! 11) 1:. r:1';. [C: n.i' 1 2 2 1982 U.S. I;1ACI:TI:ATF 2 S. DISTRICT �J 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES , INC. , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES , INC . , ) NO . C82-59M 9 a Washington corporation, ) ) 10 Plaintiff CERTIFICATE OF SERVICE 11 vs ) 12 CITY OF RENTON, a municipal ) corporation, et al . ) 13 )Defendants . 14 ) 15 I certify that I served a copy of the following documents 16 on the parties to this action on February 22, 1982 : 17 1 . Notice of Motion to Dismiss 18 2. Motion to Dismiss Complaint Pursuant to F. R.C. P. 12(b) (1) and 12(b) (6) 19 3 . Memorandum of Points and Authorities in 20 Support of Defendants Motion to Dismiss Complaint 21 4. Notice of Motion for Hearing Motion to Dismiss 22 Before District Court Judge 23 5 . Defendants Motion for Hearing Motion to Dismiss Complaint Before District Court Judge 24 6. Order to Hear Motion to Dismiss Complaint Before 25 District Court Judge 26 7 . Notice of Application for Permission to Participate 27 28 8 . Application for Permission to Participate 29 9. Order Granting Leave to Participate 30 10. Letter to Judge McGovern and Magistrate Sweigert dated February 22, 1982 31 11 . Designation of Person to Testify at Deposition 32 by mailing copies, postage prepaid, to them at the following CERTIFICATE OF SERVICE WARREN & KELLOGG. P.S. P. 1 ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX I MS RENTON. WASHINGTON 98087 255.8578 • 1 address : 2 Jack R. Burns Hubbard, Burns & Meyer 3 10604 N. E . 38th Place, Suite 105 Kirkland, Washington 98033 4 5 I certify under penalty of perjury that the foregoing 6 is true and correct. 7 Dated : February 22, 1982 8 9 Daniel Kellogg 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 CERTIFICATE OF SERVICE P . 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX 62S RENTON. WASHINGTON 98057 255.8678 a • t. II `J 1932 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES , INC . , a ) Washington corporation , and KIJKI0 ) 11 BAY PROPERTIES , INC . , a Washington) corporation , ) NO. C82-59M 12 Plaintiffs , )) 13 vs . ) AMENDED AND SUPPLEMENTAL ) COMPLAINT FOR DECLARATORY 14 THE CITY OF RENTON , ) JUDGMENT AND PRELIMINARY ) AND PERMANENT INJUNCTION 15 and ) ) 16 THE HONORABLE BARBARA Y. SHIN.POCH ,) as Mayor of the City of Renton , ) 17 and ) 18 ) EARL CLYMER, ROBERT HUGHES , NANCY ) 19 MATHEWS , JOHN REED, RANDY ROCKHILL) RICHARD STREDICKE AND TOM TRIMM, ) 20 as members of the City Council of ) the City of Renton ; serve on: ) 21 DELORES H. MEAD, City Clerk, ) 22 and ) 23 ) JIM BOURASA, as acting Chief of ) 24 Police of the City of Renton , ) ) 25 ) Defendants , jointly and ) 26 severally, in their ) representative capacities ) 27 only, ) 28 ) COME NOW Playtime Theatres Inc . and Kukio Bay Properties 29 Inc . , bodies corporate of the State of Washington , by and through 30 their attorneys , Jack R. Burns and Robert Eugene Smith , of counsel , 31 Amended and Supplemental ATTORNEYS ATIAW Complaint Hubbard, Burns & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)8211.3636 1 and seek a declaratory judgment as well as a preliminary and 2 permanent injunction with respect to City of Renton Ordinance No . 3 3526 entitled : "An Ordinance Of The City Of Renton , Washington , 4 Relating To Land Use and Zoning; " enacted and approved by the Mayor 5 and City Council on or about the 13th day of April , 1981 and in 6 support of their cause of action , state : 7 I . JURISDICTION 8 1 . This is a civil action whereby plaintiffs pray for a 9 preliminary and permanent injunction enjoining the defendants from 10 enforcement of the City of Renton Ordinance No . 3526 , a copy of 11 which is attached hereto as Exhibit "A" in support of this 12 complaint , the contents of which are incorporated herein by 13 reference , on the grounds that said ordinance and the multiple 14 provisions thereof are unconstitutional as written , and/or as 15 threatened to he applied to the plaintiffs in the case at bar . 16 Further , plaintiffs pray for a declaratory judgment to determine 17 the constitutionality of said Ordinance , as written and/or as 18 threatened to he applied to the plaintiffs . The allegations to be 19 set forth in the premises establish that there are presented 20 questions of actual controversy between the parties involving 21 substantial constitutional issues in that said ordinance , as 22 written and/or in its threatened application , is repugnant to the 23 rights of the plaintiffs herein under the First , Fourth , Fifth, 24 Sixth , and Fourteenth Amendments to the Constitution of the United 25 States . 26 2 . Jurisdiction is conferred on this court for the resolu- 27 tion of the substantial constitutional questions presented by the 28 provisions of 28 USCA §1131 (a) which provides in pertinent part : 29 (a) The district court shall have original 30 jurisdiction of all civil actions wherein the matter in controversy exceeds the sum 31 or value of $10 ,000 .00 , exclusive of interest Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 1060.1 N.E. Stith Place, Suite 105 • Kirkland,Washington 98033 (206)8 2t1 1616 • 1 and costs , and arises under the Constitution laws or treaties of the United States . 2 as well as 28 USCA §1343 (3) which provides in pertinent part that 3 the district courts shall have original jurisdiction of any civil 4 action authorized by law to he commenced by any person : 5 To redress the deprivation , under color of any 6 any state law, statute , ordinance , regulation , custom or usage , of any right , privilege or 7 immunity secured by the Constitution of the United States . . . " 8 and the organic law which further authorizes the institution of 9 this suit founded on 4?_ USCA §1983 , which provides in pertinent 10 ' part as follows : 11 Every person who , under color of any statute , 12 ordinance , custom or usage , of any state or territory subjects , or causes to be subjected , 13 any person of the United States or other per- son within the jurisdiction thereof to the 14 deprivation of any rights , privileges or 15 immunities secured by the Constitution and the laws , shall be liable to the party 16 in- jured in an action at law, sued in equity, or other proper proceeding for redress . 17 Plaintiffs ' prayer for declaratory relief is founded on Rule 18 57 of the Federal Rules of Civil Procedure , as well as 28 USCA 19 §2201 , which provides in pertinent part : 20 . . . Any court of the United States , upon the 21 filing of an appropriate pleading, may declare the rights and other legal relations of any 22 interesed party seeking such declaration , • whether or not further relief is or could be 23 sought . . . 24 The jurisdiction of this court to grant injunctive relief is 25 conferred by 28 USCA §2202 , which provides : 26 Further necessary or proper relief based upon a declaratory judgment or decree may be granted 27 after reasonable notice and hearing against any adverse party whose rights have been determined 28 by such judgment . 29 II . PARTIES 30 3 . Playtime Theatres , Inc . , a corporate body of the State 31 of Washington plans to operate pursuant to a written lease agree- Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION - 10604 N.E.38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 1 ment , a motion picture theatre which is located at 504 South 3rd 2 Street , within the city limits of Renton , State of Washington . The 3 enterprise will he operated under the name of the Roxy Theatre . 4 Playtime Theatres , Inc . will also operate pursuant to a written 5 lease agreement , the Renton Theatre at 507 South 3rd Street , within 6 the city limits of Renton , State of Washington . 7 Kukio Bay Properties , Inc . , a body corporate of the State of 8 Washington has purchased the motion picture theatres described in 9 the preceeding paragraph and has leased said theatres to Playtime 10 Theatres , Inc . 11 That on January 26 , 1982 , Kukio Bay Properties , Inc . pur- 12 chased of said theatres For the sum of $800 ,000 . 00 . That imme- 13 diately thereafter , Kukio Bay Properties , Inc . took possession of 14 said theatres . That on or about the 27th day of January, 1982 , by 15 a written agreement , Kukio Bay Properties , Inc . leased said theatre 16 premises to Playtime Theatres , Inc . for a period of ten years 17 commencing on January 27 , 1982 . In addition , Playtime Theatres , 18 Inc . will have the option to renew said leases for an additional 19 term of ten years terminating on January 26 , 2002 . The lease 20 agreements to be entered into by the parties provide that the 21 premises by used for the purpose of conducting therein adult motion 22 picture theatres . Playtime Theatres , Inc . took possession of said 23 theatres on or about January 27 , 1982 and on January 29 , 1982 24 planned to begin exhibiting feature length motion picture films for 25 adult audiences . 26 From on or about January 29 , 1982 , under the operation and 27 management of Playtime Theatres , Inc . , one of said theatres would 28 continuously operate exhibiting adult motion picture film fare to 29 an adult public audience but for the threats of the defendants to 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard; Burns & Meyer Page 4 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 enforce their wholly unconstitutional zoning ordinance . 2 4 . The defendant , City of Renton , is a municipal corpora- 3 tion of the State of Washington . 4 5 . The Honorable Barbara Y. Shinpoch is named defendant 5 herein in her capacity as Mayor of the City of Renton , having the 6 titular title . In that capacity, she is the head of City govern- 7 ment and approved the questioned ordinance in the case at bar . 8 6 . Earl Clymer , Robert Hughes , Nancy Mathews , John Reed , 9 Randy Rockhill , Richard Stredicke and Tom Trimm are named as 10 defendants herein as members of the City Council of the City of 11 Renton who enacted the wholly unconstitutional ordinance as a part 12 of their alleged legislative function . 13 8 . Jim Bourasa is named a defendant herein in his capacity 14 as Acting Chief of Police of the City of Renton who is primarily 15 responsible for seeing to the enforcement of the City of Renton 16 ordinances , civil , criminal and quasi-criminal in nature . 17 9 . The defendants in their official capacities as aforesaid 18 have acted and/or threaten to act to plaintiffs ' immediate and 19 irreparable harm under color of authority of the Ordinance No . 3526 20 heretofore identified as Exhibit "A" . 21 The named defendants , in their official capacity as afore- 22 mentioned , are joined herein 'to make enforceable to them and/or 23 their agents , servants , employees and attorneys , any Preliminary 24 and/or Permanent Injunction , Declaratory Judgment , and/or other 25 Order of this Court . 26 27 III . FACTUAL ALLEGATIONS 28 10 . The instant ordinance was passed with the sole purpose 29 to prevent the opening of any adult motion picture theatre within 30 the city limits of Renton and to effectively censor the kinds of 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 5 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. lath Place, Suite 105 Kirkland,Washington 980.13 t2061 928-3616 • 1 protected First Amendment press materials available to adult 2 citizens of the City of Renton and adult visitors to the City. 3 11 . That no criminal , quasi-criminal and/or civil preceed- 4 ing is pending in the city courts of the City of Renton or in the 5 state courts in the State of Washington against the plaintiffs 6 and/or their agents , servants and employees as of the date of the 7 filing of this suit with respect to this matter . 8 12 . That on the 19th day of January, 1982 , Mike Parness , 9 Administrative Assistant to the Mayor of the City of Renton has , as 10 aforesaid , advised that if the property of the plaintiffs is used 11 to exhibit adult motion picture films , then enforcement proceedings 12 will be commenced forthwith . 13 13 . That the City of Renton Ordinance No . 3526 was enacted 14 by the City Council and approved by the Mayor as a part of a syste- 15 matic scheme , plan and design , under color of enforcement of the 16 said ordinance to deny distributors and/or exhbitors of adult films 17 access to the marketplace , and to deny to the intersted adult 18 public , access to such erotic materials which are not otherwise 19 obscene under the test set forth in Miller v. California , 413 U. S . 20 15 (1973) . See Young v. American Mini Theatres , 427 U. S . 50 21 (1975) at pages 62 and 71 . 22 14 . That requiring the plaintiffs to conform to this wholly 23 unconstitutional zoning ordinance by not using the locations they 24 have contracted to purchase , and requiring them to move their 25 business to a selectively obscure geographical location , violates 26 the plaintiffs ' rights under the First , Fifth, Sixth and Fourteenth 27 Amendments to the Constitution of the United States . Indeed , by 28 this selective ordinance , which would shutter motion picture 23 theatres such as the Roxy Theatre and Renton Theatre , which show as part of their fare , erotic films , the City of Renton by its agents , 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 6 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 10S • Kirkland,Washington 98033 1206)828-3616 1 servants and employees will be denying the plaintiffs and other 2 persons lawfully engaged in the exhibition of adult film fare 3 presumptively protected by the First Amendment to the Constitution 4 of the United States , [Heller v. People of the State of New York, 5 413 U. S . 483 (1973) ; and Roaden v. Commonwealth of Kentucky, 413 6 U. S. 496 (1973) ] , access to the marketplace as well as the right of 7 the interested adult public to have access to adult film fare , and 8 will deny the plaintiffs the right to engage in said business in 9 the City of Renton ; and unless restrained , the City, under color of 10 enforcement of its zoning laws , will cause said businesses to cease ti 11 and close up ; and unless restrained , defendants will continue to 12 seek to enforce said ordinance and this will have the effect of 13 totally depriving your plaintiffs , as well as others similarly 14 situate , from their normal business activities . This will have a 15 chilling effect on the dissemination and exhibition of adult film 16 fare to those interested adults who seek to satiate their educa- 17 tional , entertainment , literary, scientific and artistic interests 18 in such press materials . The ordinance places an intolerable 19 burden upon the exercise of First Amendment rights , arbitrarily and 20 capriciously descriminates as to the nature of film fare exhibited 21 based upon an assumption which is not rationally related to a valid 22 public purpose nor necessary to achieve a compelling state interest 23 in violation of the Equal Protection Clause of the Fourteenth 24 Amendment of the Constitution of the United States , establishes 25 classifications which are arbitrary and capricious and constitutes 26 an abuse of legislative discretion and is not rationally related 27 and also deprives plaintiffs of their equal rights under the 28 Fourteenth Amendment of the Constitution of the United States ; and 29 further by its use has language that is intrinsically vague and 30 void under the First and Fifth Amendments to the Constitution of 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 7 A PROFESSIONAL SERVICE CORPORATION 10604 N.L. 18th flat', Suite 105 Kirkland,Washington 9003.1 (2061 828 1616 1 the United States and void for impermissible overbreadth by the use 2 of means which are too broad for the alleged evil intended to he 3 curtailed . That the enactment of the City of Renton Ordinance No . 4 3526 was done without the constitutionally required legislative 5 fact finding required to meet the burden imposed upon those who 6 seek to curtail activity which might otherwise he protected within 7 the pneumbra of the First Amendment of. the Constitution of the 8 United States . The defendants , by their agents , servants and 9 employees , and/or their attorneys , by enacting such a wholly 10 unconstitutional ordinance , and now threatening to enforce the 11 same , have created a pervasive atmosphere of official repression 12 constituting a "chilling effect" upon the exercise of First 13 Amendment rights of plaintiffs and others who may wish to engage in 14 the lawful business of exhibiting adult film fare protected by the 15 First Amendment to the Constitution of the United States , as well 16 as the interested adult public who desire to see and view such 17 adult film fare , and this has imposed and threatens to impose a 18 wholly unconstitutional prior restraint condemned by the First , 19 Fourth , Fifth, and Fourteenth Amendments to the Constitution of the 20 United States , and this is merely a design and - scheme on the part 21 of the defendants to force the plaintiffs and others similarly 22 situate out of business , under color and pretense of claimed 23 enforcement of the ordinance attached hereto as Exhibit "A" , well 24 knowing the patent unconstitutionality of the same . 25 15 . Ordinance No . 3526 provides a new use classification 26 within the zoning laws of the City of Renton ; i .e . , an adult motion 27 picture theatre . 28 16 . An adult motion picture theatre is not a permitted use 29 within any zoning classification currently in use within the City 30 of Renton. Accordingly, in order to locate an adult motion picture 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 8 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 1 theatre anywhere within the City of Renton , it is necessary to 2 obtain a special permit , conditional use or variance . 3 17 . The process of applying for a special permit , 4 conditional use or variance vests unfettered discretionary 5 authority in the Hearing Examiner , Board of Adjustment and/or City 6 Council to deny such special permit , conditional use or variance . 7 No objective written criteria , standards or guidelines have been 8 established which would in any way limit this discretionary 9 authority. In addition , the ordinances of the City of Renton set 10 no time limit for the City Council to make a decision relative to 11 an application for a special permit , conditional use or variance . 12 The City Council has the discretion to withhold making a decision 13 for an unreasonable length of time if it chooses to do so . The 14 various matters to he considered by the Hearing Examiner and/or the 15 Board of Adjustment in the granting or denial of a special permit , 16 conditional use or variance are vague and aesthetic qualities that 17 are not capable of objective measurement and , as such , they create 18 the potential for an unreasonable burden upon free speech and , as 19 applied to plaintiffs and a motion picture theatre , they are 20 impermissibly overbroad and unconstitutional . 21 18 . That requiring the plaintiffs to submit to a wholly 22 unconstitutional exercise of unbridled discretion at the hands of a 23 Hearing Examiner or Board of Adjustment and/or the City Council , in 24 the absence of narrowly drawn , reasonable and difinitive standards 25 to be followed in the exercise of said discretion violates 26 plaintiffs ' rights under the First , Fifth and Fourteenth Amendments 27 to the Constitution of the United States . Interstate Circuit v. 28 Dallas , 390 U. S . 676 (1968) and Shuttlesworth v. City of 29 Birmingham, 394 U. S. 147 (1969) . 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 9 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 19 . Further , since the Hearing Examiner , Board of 2 Adjustment and/or the City Council have no narrowly drawn , 3 reasonable and definitive standards to be followed by them in the 4 exercise of the discretion conferred upon them by the Renton Zoning. 5 Code in making a determination about the issuance of a special 6 permit , conditional use or variance , it would be an exercise in 7 futility to engage in such administrative process because of the 8 patently unconstitutional character of the zoning provisions in 9 question . 10 20 . The provisions of the Renton Zoning Code which apply to 11 the issuance of special permits , conditional uses or variances , 12 establish classifications which are arbitrary and capricious and 13 constitute an abuse of legislative discretion , and also permit 14 censorship by standardless rationale subject to abusive discretion 15 by the defendants in violation of plaintiffs ' substantive and due 16 process rights under the pneumbra of the First , Fifth and 17 Fourteenth Amendments of the Constitution of the United States ; and 18 further , have language that is intrinsically vague and void under. 19 the First and Fifth Amendments to the United States Constitution 20 and void for impermissible overbreadth . 21 IV. BASIS IN LAW FOR RELIEF 22 21 . Plaintiffs have the right to engage in the business of 23 offering for exhibition adult motion picture film fare for profit 24 by virtue of the First Amendment to the Constitution or adult film 25 fare which is presumptively protected under said constitutional 26 amendment , and the public , including both adult citizens and 27 visitors to the City of Renton have the same constitutional right 28 to view said adult motion picture film fare as may be offered for 29 said exhibition to said adults in a nonintrusive manner . Heller v. 30 New York, 413 U. S . 483 , 37 L.Ed . 2d 745 , 93 Sup .Ct . 2789 (1973) . 31 ATTORNEYS AT LAW Amended and Supplemental Complaint Hubbard, Burns & Meer Page 10 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirk Lind,W.i'hingion'1001I (2(Nd 11211-16 ib 1 Further , the conduct of the defendants and their agents , servants , 2 employees and/or attorneys and others , acting under their direction 3 and control in attempting to refuse to allow plaintiffs to operate 4 their businesses in the City of Renton , unless they remove 5 themselves to some obtuse selectively obscure geographical. site , 6 will have the draconian effect of denying plaintiffs and others 7 similarly situate , access to the marketplace , and the viewing adult 8 public the right to satisfy its interest for adult film fare . 9 22 . As a further result of the unconstitutional ordinance 10 enacted by the City Council and approved by the Mayor , as well as 11 the threatened conduct of the defendants to force plaintiffs to 12 not engage in their businesses , plaintiffs have been required to 13 retain attorneys to pursue their rights under the First , Fourth , 14 Fifth , and Fourteenth Amendments to the Constitution of the United 15 States , and the defendants , acting under color of pretense of law, 16 as aforesaid , have threatened to initiate actions to enforce the 17 said ordinance , which actions are and/or threaten to he , repugnant 18 to the Constitution of the United States . 19 23 . The City of Renton zoning ordinance designated herein 20 as Ordinance No. 3526 , is clearly repugnant to the First , Fourth , 21 Fifth and Fourteenth Amendments to the Constitution of the United 22 States as written and as threatened to he applied , for the follow- 23 ing reasons : 24 (a) Said ordinance is void for vagueness in that it 25 fails to establish by its terms , definitive standards , 26 criteria and/or other controlling guides defining 27 words , inter alia "other religious facility or institu- 28 tion" in Section II(A) (4) or "distinguished or charac- 29 terized byemphasis on matter depicting , an P describing ao or relating to "specified sexual activities" as used in 31 Amended and Supplemental ATTORNEYSATIAW Complaint Hubbard, Burns & Meyer Page 11 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 Section I (1) of said ordinance , as well as the words 2 "erotic touching" as used in Section I(2) (C) ; and as 3 such is a deprivation under color of state law of 4 plaintiffs ' right to due process under the First , Fifth 5 and Fourteenth Amendments to the Constitution of the 6 United States . 7 (b) Said ordinance is void for impermissible over- 8 breadth by means which sweep unnecessarily broadly and 9 thereby invade the area of protected freedoms in that 10 the same sets forth standards at variance with those 11 minimum standards prescribed by the Supreme Court of 12 the United States , in connection with the exercise of 13 First Amendment rights , and in particular , those 14 provisions which set forth the "specified anatomical 15 areas" and "specified sexual activities" in Section 16 I (2) and Section I (3) . 17 (c) Said ordinance is further void for impermissible 18 overbreadth and deprives plaintiffs of due process and 19 equal protection of the law through the arbitrary and 20 uncontrolled power conferred by the enactment of said 21 ordinance to the defendants ' enforcement of zoning laws 22 for the exercise of otherwise clear First Amendment 23 rights and therefore the same is invalid under the 24 First and Fifth Amendments to the Constitution of the 25 United States made obligatory on the States under the 26 due process provisions of the Fourteenth Amendment . 27 (d) Said ordinance , lacking precision and narrow 28 specificity in the standards to be employed by defen- 29 dants in the operation of their legislative power to 30 enact zoning laws , constitutes a prior restraint under 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 12 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 18th Place, Suite 105 Kirkland,Washington 98033 12061828-3636 1 color of state law on the exercise of plaintiffs of 2 their rights under the First , Fifth and Fourteenth 3 Amendments to the Constitution of the United States and 4 as written , which is and has been , under the facts 5 alleged herein , susceptible to arbitrary, capricious 6 and uncontrolled discretion on the part of defendants 7 herein , their agents , servants and employees . 8 (e) Said ordinance is void in that it fails , by its 9 terms , to establish procedural safeguards to assure a 10 prompt decision on the challenge to the arbitrary 11 zoning classification , and if a zoning challenge is 12 denied , the ordinance fails byits terms to provide for 13 a prompt final judicial review to minimize the deter- 14 rent effect of an interim and possibly erroneous zoning 15 classification under procedures which places the burden , 16 on plaintiffs to both expeditiously institute judicial 17 review and to persuade the courts that the activity 18 sought to be licensed and the procedure and ordinance 19 employed to authorize the same , is without the ambit of 20 the First Amendment , and the abatement of the noncon- 21 forming use is not a proper exercise of authority. 22 ( f) Said ordinance is further void in that the same , 23 by its terms , places an impermissible burden upon the 24 exercise of plaintiffs ' First Amendment rights . 25 (g) Said ordinance is further void as violative of the 26 Equal Protection Clause of the Fourteenth Amendment , in 27 that the same creates a statutory classification which 28 has no rational relationship to a valid public purpose 29 nor is the same necessary to the achievement of a com- 30 pelling state interest by the least drastic means . 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 13 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 (h) Said ordinance is repugnant to the substantive due 2 process provisions of the Fifth, and Fourteenth 3 Amendments to the Constitution of the United States 4 because the same permits deprivation of liberty and/or 5 property interests for the exercise of First Amendment 6 rights by unreasonable , arbitrary and capricious means 7 without a showing of a real and substantial relation- 8 ship to any state or city subordinating interest which 9 is compelling to justify state or city action limiting 10 the exercise by plaintiffs of their First Amendment 11 freedoms . 12 ( i) Said ordinance is impermissibly overbroad and 13 repugnant to the procedural due process requirements of 14 the Fifth and Fourteenth Amendments to the Constitution 15 of the United States , in that the same employs means 16 lacking adequate safeguards , which due process demands , 17 to assure presumptively protected press materials , 18 sought to be distributed to an interested adult public , 19 the constitutional protection of the First Amendment . 20 (j) Said ordinance is vague and impermissibly over- 21 broad and thus repugnant to the First , Fourth, Fifth 22 and Fourteenth Amendments to the United States Consti- 23 tution , in that said ordinance , by its provisions , 24 permits inherent powers of censorship and suppression 25 constituting a prior restraint on the exercise of 26 plaintiffs ' First Amendment rights as well as the 27 interested adult public who may desire to view presump- 28 tively protected press materials for the ideas pre- 29 sented therein . 30 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 14 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 12061 828-3636 • 1 (k) Said ordinance , and particularly Section I (2) , in 2 defining "specified sexual activities" defines that 3 phrase in part as "erotic touching" and is thus void 4 for vagueness in that "erotic" is a word that can mean 5 many things to many people and without further clarifi- 6 cation confers on defendants unbridled discretion in 7 the interpretation of that term and as such, is viola- 8 tive of the plaintiffs ' rights under the First , Fifth 9 and Fourteenth Amendments to the Constitution of the 10 United States . 11 ( 1) Said ordinance and particularly Section II (A) as 12 it purports to establish restrictions , requirements and 13 conditions for an alleged adult theatre imposes bur- 14 dens , restrictions and conditions that are not justi- 15 fied by any compelling state interest and as such , the 16 classification is an invidious and arbitrary discrimi- 17 nation as to a class and as such, is a denial. of 18 plaintiffs ' rights under the Fourteenth Amendment to 19 the Constitution of the United States , particularly 20 where , as here , protected First Amendment activity is 21 involved . 22 (m) The plaintiffs will suffer immediate and substan- 23 tial economic harm if said ordinance is applied to them 24 and the result of the application of said ordinance to 25 the activities of the plaintiffs will result in a for- 26 feiture of substantial business interests and assets . 27 28 24 . Plaintiffs herein aver that their rights afforded under 29 the First , Fourth , Fifth , Sixth and Fourteenth Amendments to the Constitution of the United States have been violated by said 31 defendants in the enactment of a wholly unconstitutional ordinance , Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 15 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 ti 1 and that unless this Court grants the relief prayed for , said 2 plaintiffs and others similarly situate , as well as the interested 3 adult public , will suffer irreparable harms . 4 25 . Plaintiffs aver that the aforesaid action of the 5 defendants in enacting said ordinance , and the threatened enforce- 6 went thereof by said defendants acting under color of state law, is 7 in furtherance of a scheme , plan and design to prevent any business 8 activity which may offer for sale or exhibition adult press 9 materials in the City of Renton to the adult public . 10 26 . Those portions of the Renton Municipal Code contained 11 in Chapter 4-722 relative to the issuance of special permits , 12 conditional uses and variances , are clearly repugnant to the First , 13 Fourth, Fifth and Fourteenth Amendments to the Constitution of the 14 United States as written and as threatened to he applied , for the 15 following reasons : 16 (a) Said provisions are void for vagueness in that they 17 fail to establish by their terms definitive standards , 18 criteria or other controlling guides defining concepts 19 such as , inter alia 20 * * * * 21 Special Permits : Recognizing that there are certain 22 uses of property that may be detrimental to the public health , safety, morals and general welfare . . . 23 * * * * * 24 The purpose of a conditional use permit shall be to 25 assure , by means of imposing special condition and requirements on development , that the compatibility of 26 uses , a purpose of this Title , shall be maintained , considering other existing and potential uses within 27 the general area of the proposed use . 28 * * * * * 29 The examiner may deny any application if the character- istics of the intended use would create an incompatible 30 or hazardous condition . 31 * * * * * Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 16 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 Kirkland,Washington 98(133 (206)828-3636 • The examiner shall have the right to limit the term and 2 duration of any such conditional use permit and may impose such conditions as are reasonably necessary and 3 required . 4 * * * * * 5 The conditions imposed shall be those which will reasonable assure that nuisance or hazard to life or 6 property will not develop . 7 * * * * * 8 The examiner may, after a public hearing , permit the 9 following uses in districts from which they are pro- hibited by this Chapter where such uses are deemed 10 essential or desirable to the public convenience or welfare and are in harmony with the various elements or 11 objectives of the comprehensive plan . * * * * 12 13 The hearing examiner shall he empowered to approve conditionally approve or disapprove said conditional 14 use permit applications based on normal planning considerations , including , but not limited to the 15 following factors : (a) suitability of site ; (b) conformance to the comprehensive plan ; (c) harmony with 16 the various elements or objectives of the comprehensive plan ; (d) the most appropriate use of land through the 17 city; (e) stabilization and conservation of the value of property; . . . and prevention of neighborhood deteri- 18 oration and blight ; (o) the objectives of zoning and planning in the community; (p) the effect upon the 19 general city' s welfare of this proposed use in relation to surrounding uses in the community. 20 * * * * 21 That the granting of the variance will not be materi- 22 ally detrimental to the public welfare or injurious to the property improvements in the vicinity and zone in 23 which subject property is situated . 24 * * * 25 That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of 26 other properties in the vicinity and zone in which the subject property is situated . 27 * * * * * 28 That the approval is determined by the examiner or 29 Board of Adjustment is a minimum variance that will accomplish the desired purpose . 30 31 ATTORNEYS AT LAW Amended and Supplemental Complaint Hubbard, Burris & Meyer Page 17 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 and as such are a deprivation under color of law of 2 plaintiffs ' right to due process under the First , Fifth 3 and Fourteenth Amendments to the Constitution of the 4 United States . Said provisions are void for impermis- 5 sihle overbreadth by means which sweep unnecessarily 6 broadly and thereby invade the area of protected 7 freedoms in that the same set forth standards at vari- 8 ance with those minimum standards prescribed by the 9 Supreme Court of the United States in connection with 10 the exercise of First Amendment rights . 11 (b) Said provisions are further void for impermissible 12 overbreadth and deprive plaintiffs of due process and 13 equal protection of the law through the arbitrary and 14 uncontrolled discretionary power conferred by said pro- 15 visions upon the Hearing Examiner , Board of Adjustment 16 and City Council and , therefore , the same are invalid 17 under the First and Fifth Amendments to the Constitu- 18 tion of the United States made obligatory on the States 19 under the due process provisions of the Fourteenth. 20 Amendment . 21 (c) Said provisions lack precision and narrow speci- 22 ficity in the standards to be employed by the Hearing 23 Examiner , Board of Adjustment and/or City Council in 24 the exercise of the discretion used in the operation of 25 the City of Renton' s legislative power to enact 26 ordinances providing for zoning and , as such, consti- 27 tute a prior restraint under color of state law and the 28 exercise by plaintiffs of their rights under the First , 29 Fifth and Fourteenth Amendments to the Constitution of 30 the United States and as written , which is and have 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 18 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 been , under the facts alleged herein , susceptible to 2 arbitrary, capricious and uncontrolled discretion on 3 the part of the defendants herein , their agents , 4 servants and employees . 5 (d) Said provisions are void in that they fail by 6 their terms to establish procedural safeguards to 7 assure a prompt decision on a challenge to the capri- 8 cious denial of a special permit , conditional use or 9 variance . The provisions fail by their terms to pro- 10 vide for a prompt final judicial review to minimize the 11 deterrent effect on an interim and possibly erroneous 12 and arbitrary denial of a zoning special permit , condi- 13 tional use or variance and , thus , the burden is on 14 plaintiffs to both expeditiously institute judicial 15 review and to persuade the courts that the activity 16 sought to be pursued and the procedures and ordinances 17 employed to prohibit the same are without the ambit of 18 the First Amendment . 19 V. RELIEF SOUGHT 20 • 21 27 . Plaintiffs are entitled to and desire that this Court 22 enter a declaratory judgment , declaring Ordinance No . 3526 to he 23 unconstitutional as written and/or as defendants purport to apply 24 it , in whole or in part , to be repugnant to the First , Fourth , 25 Fifth, Sixth and/or Fourteenth Amendments to the Constitution of 26 the United States . 27 28 . Plaintiffs seek a preliminary and permanent injunction 28 to prohibit the enforcement by defendants , and/or their agents , 29 servants , employees , attorneys , and others acting under its direc- 30 tion and control of the provisions of Ordinance No . 3526 . 31 WHEREFORE , plaintiffs pray: Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 19 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place, Suite 105 Kirkland.Washington 98033 (2061 828-3636 1 1 . That defendants be required to answer forthwith this 2 Amended and Supplemental. Complaint in conformance with the rules 3 and practices of this Honorable Court . 4 2 . That a Declaratory Judgment he rendered declaring 5 Ordinance No. ' 3526 to be unconstitutional as written , in whole 6 and/or in part , and that this Court further declare the ordinance 7 to he unconstitutional in its threatened application to the 8 plaintiffs . 9 3 . That a Preliminary Injunction issue from this Court upon 10 hearing , restraining defendants and their agents , servants , 11 employees , and attorneys , and others acting under their direction 12 and control , pending a hearing and determination on plaintiffs ' 13 application for a Permanent Injunction , from enforcing or executing 14 and/or threatening to enforce and/or execute the provisions of 15 Ordinance No. 3526 in whole and/or in part , by arresting plain- 16 tiffs , their agents , servants or employees , and/or threatening to 17 arrest plaintiffs , their agents , servants and employees and/or 18 harassing, threatening to close , or otherwise interferring with 19 plaintiffs ' peaceful use of the premises . 20 4 . That upon a final hearing , that this Court issue its 21 Permanent Injunction prohibiting the defendants and/or their 22 agents , servants and employees , and/or others in concert with them , 23 from enforcingOrdinance No. 3526 in whole or in part because of 24 its patent unconstitutionality. 25 5 . That upon a final hearing this Court award to the plain- 26 tiffs such damages as they shall have sustained by reason of loss 27 of business , the expenditure of assets to enforce and protect the 28 rights guaranteed to them under the Constitution of the United 29 States , their reasonable attorney' s fees and such other damages as 30 may be established at the time of trial . 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 20 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 48033 (206)828-3636 1 6 . And for such other and further relief as may he 2 appropriate under the circumstances of this case . 3 DATED this ` day of February, 1982 . 4 Respectfully submitted , 5 HUBBARD, BURNS & MEYER 6 By 7 ; r" , 1 ,!�: Jack R. Burns Attorney for Plaintiffs 8 OF COUNSEL: 9 Robert Eugene Smith , Esq . 10 16133 Ventura Blvd . Penthouse Suite F. 11 Encino, California 91436 12 (213) 981-9421 13 14 STATE OF WASHINGTON ) ss . 15 COUNTY OF KING ) 16 COMES NOW Jack R. Burns who , after being duly sworn , did 17 depose and say: 18 1 . That Playtime Theatres , Inc . and Kukio Bay Properties , 19 Inc . are bodies corporate of the State of Washington , in good standing. 20 21 2. That affiant is one of the attorneys for said 22 corporations . Affiant further states that he is authorized to 23 speak on their behalf. 24 3 . That said corporations are the plaintiffs in the within 25 proceedings . 26 4. That he has read the complaint to which this affidavit 27 is affixed and asserts that the factual allegations contained 28 therein are true and correct to the best of his information , 29 knowledge and belief. 30 5 . That the enforcement of the City of Renton Ordinance No . 31 3526 will , if upheld , have the effect of depriving plaintiffs of Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 21 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98031 (206)828-3636 ♦ i f 1 access to the marketplace to exhibit their presumptively protected 2 First Amendment wares of adult film fare ; and further , will deny to 3 interested adults , the access to such material for their informa- 4 tion , education , entertainment , literary, scientific or artistic 5 interests , as well as subject plaintiffs , their agents , servants 6 and employees to criminal arrests and confiscatory fines and 7 forfeitures of property interests ; and would further destroy the 8 property and interest of said corporations in the location of their 9 theatres operated at 504 South 3rd Street , and 507 South 3rd 10 Street , in the City of Renton , and subject said plaintiff 11 corporations to grievous financial harm as well as to also chill 12 their rights of free speech as guaranteed by the First Amendment . 13 Dombrowski v. Pfister , 3R0 U. S . 479 (1965) . 14 15 ) ) Jack R. Burns 16 SUBSCRIBED AND SWORN to before me this day of 17 February, 1982 . 18 19 Notary P blis in and fir. the 20 State of W Oing,ton residing at (y ,.( , ( 21 22 23 24 25 26 27 28 29 30 31 Amended and Supplemental ATTORNEYS ATLAW Complaint Hubbard, Burns & Meyer Page 22 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98)3.) (206)828-3636 .IAIF 01 WASNINt;ION COUNTY Of hlft • I. .l.LC L.'C::.x..i.l....1}.(0!-j D City Clerk in and for the City of Renton, ton, du hereby certiy he;S the foregoing Ordinance Is a true and correct •.gyp, rl O:'finance No.....3% tiO of the City of Renton, as it appears on file n i;' ..;oco, and do further certify that the same has been published according 1 !.1 W. 'n Witness Whereof I have hepunto set my'Ilea and affixed the seal of th • :ity of Renton, this .day of_:(.2-ec_ ,Q e _1f.b/ City Clerk CITY OF RENTON , WASHINGTON ORDINANCE NO . 3526_ AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON , RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON, DO ORDAIN AS FOLLOWS.:. SECTION I : Existing Section 4- 702 of Title IV (Building Regulations) of Ordinance No . 162S entitled "Code of General Ordinance-, of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or characteri by an emphasis on matter depicting , describing or relating to "specific. sexual activities" or "specified anatomical areas" as hereafter defined for observation by patrons therein . -2 . "Specified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation , sexual intercourse or sodomy ; (c) Fondling or other erotic touching of human genitals pubic region , buttock or female breast . 3 . "Soecified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region , buttock , and female breast below a point immediately above the top of the arcola ; and (h) Human male genitals in a discernible turgid state , even if completely and opaquely covered . - 1- Exhibit • SECTION II : There is hereby added a Chapter to Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of . General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any residential. Zone (SR- 1 . SR-2 , R- 1 , S- 1 , R- 2 , R-3 , R-4 or T) or any single family or multiple family a i residential use . 2 . One ( I ) mile of any public or private school 3 . One thousand ( 1000 ' ) feet of any church or other religious facility or institution 4. One thousand ( 1000 ' ) feet of any public park or P- 1 Zone . B . The distances provided in this section shall be measured by following a straight line , without regard to intervening buildings , from the nearest point of the property parcel upon which the proposed use is to be located , to the nearest point of the parcel of property or the land use district boundary line from which the proposed land use is to be separated. SECTION III : This Ordinance shall be effective upon its passage , approval and thirty days after its publication . PASSED BY THE CITY COUNCIL this 13th day of April , 198 • Delores A . Mead , 2�• ty7Clerk Y APPROVED BY THE MAYOR this nth day of April , 1981 . Approved as to form: Ba7S-iFi"—Y7 Shinpoch . Mayor awrence J . l arren , City Attorney Date of Publication : Max' 15, 14XU 1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 6 PLAYTIME THEATRES, INC. , a ) 7 Washington corporation, and ) NO. C82-59M KUKIO BAY PROPERTIES, INC . , ) 8 a Washington corporation, ) ) AFFIDAVIT OF DAVID R. 9 Plaintiffs , ) CLEMENS , POLICY DEVELOPMENT ) DIRECTOR OF CITY OF RENTON 10 vs ) 11 THE CITY OF RENTON, et al , ) ) 12 Defendants . ) ) 13 STATE OF WASHINGTON) 14 ) ss COUNTY OF KING ) 15 DAVID R. CLEMENS, being first duly sworn on oath, deposes 16 and states: 17 I am the Policy Development Director of the City of 18 Renton. Commencing on January 5, 1981 and continuing until 19 December 1, 1981 , I was the Acting Planning Director of the 20 City of Renton. 21 The City of Renton is located at the southeast end of 22 Lake Washington. The 1981 population of the City is 32, 200; 23 the extended service area of the City of Renton is approximately 24 70, 000 persons . The population of the City during daytime, 25 including the large industrial manufacturing plants of The 26 Boeing Company and Pacific Car & Foundry Company, is approximately 27 28 50, 000 persons . The City of Renton comprises 15 . 3 square miles . The Renton School District No . 403 , whose boundaries are not 29 identical with the city limits of the City of Renton, but are 30 31 clearly within the service area of the City of Renton, has 14 32 elementary schools, 3 middle schools and 3 high schools, together AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 1 ,00 SO.SECOND ST..P.O.sox 626 RENTON, WASHINGTON 98057 255-8678 1 with special and alternative education facilities and a 2 vocational-technical institution. Within the city limits 3 are 62 churches representing all major denominations . The 4 City has recreational facilities including 18 parks , including 5 two waterfront parks on Lake Washington, 3 public swimming 6 pools and the Cedar River Trail which includes an existing 7 path for joggers, etc . , and a nature trail along the Cedar 8 River which is being developed. The senior citizens recreation 9 center on the Cedar River is a principal recreation source for 10 senior citizens and the surrounding service area . Shopping 11 and commercial activity areas are located throughout the 12 community in neighborhood shopping center clusters , with major 13 shopping facilities being divided into four major nodes : the 14 downtown business district along Second and Third Avenues; the 15 Renton Shopping Center located along Rainier Avenue; the Renton 16 Village Shopping Center located along Grady Way; and the 17 Highlands shopping area located along Sunset Boulevard Northeast . 18 Land uses within the City of Renton as of October 1980 are 19 estimated to occupy the following acres within the City of 20 Renton: 21 Single family residential 2025 22 Multi-family residential 415 Commercial 385 23 Public - quasi-public 570 Parks and recreation 500 24 Agricultural 90 Industrial 1205 25 Major arterials and freeways 710 Undeveloped _ 3735 26 TOTAL 9635 27 One of my principal responsibilities is to assist the 28 Mayor' s office and the City Council to study and implement 29 land use regulations within the City of Renton. I have 30 personal knowledge of the matters relating to the development 31 of the land use regulations which were ultimately adopted as 32 Ordinance No . 3526 . I was present at all meeting of the City WARREN & KELLOGG. P.S. AFFIDAVIT OF DAVID R. CLEMENS ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX SS8 P. 2 RENTON, WASHINGTON 98057 255.8878 1 Council and its Planning and Development Committee, and in 2 particular the public meeting that was held on March 5, 1981 3 at which time the City Council took comments from interested 4 citizens, educators, clergymen and businessmen on this subject 5 matter. 6 The City Council dealt with the issue of regulation of 7 adult entertainment land uses without the influence of a 8 pending adult entertainment land use proposal . The Council 9 considered comments from the land use planning professionals 10 in my office as well as a comprehensive report from the City 11 Attorney' s office relating to the proper scope of land use 12 regulations and experience from other cities . At all times, 13 the City Council was advised that it was inappropriate to 14 entirely ban adult entertainment land use from the City. 15 After the Committee had concluded its study of the 16 alternatives which were available to the City for regulation 17 of adult entertainment land uses , the Committee sought comment 18 from the general public on the matter at a public meeting held 19 on March 5, 1981 . Sixty-four (64) persons were in attendance, 20 with 28 persons speaking on the issue. In attendance were 21 residents of the city, residents of other areas outside the city 22 who use the City of Renton for shopping and employment, educators , 23 including the Superintendent of the Renton School system, 24 clergymen from churches within the City and the surrounding area, 25 representatives of the local feminist organization and members 26 of the business and professional community including the Manager 27 of the Greater Renton Chamber of Commerce. The testimony 28 presented to the Committee consistently noted adverse impact 29 upon neighborhoods and businesses within the City of Renton in 30 the event that an adult entertainment land use was situated in 31 close proximity to schools, churches, public or quasi-public 32 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 3 100 SO.SECOND ST..P.O.SOX SSS RENTON. WASHINGTON 98057 255.8678 1 buildings, businesses , and residential zones or uses . Numerous 2 speakers, including the Superintendent of Schools , expressed 3 concern about the adverse effect caused by children walking past 4 and in the vicinity of adult entertainment land uses on their 5 way to and from school . Several speakers noted that adult 6 theaters and other similar uses are not similar to other commercial 7 activities in that their impact extends beyond the limits of the 8 immediate location. As a result, the general population of the 9 City of Renton is confronted with an intrusion into its life 10 style of an activity over which it may have little control . 11 In effect, even if the general population chooses not to 12 patronize the establishment, the adverse effect upon the community 13sti11 remains . Several speakers commented upon the adverse 14 impacts which adult entertainment land uses would have upon 15 property values within the business and residential community 16 of the City of Renton if such uses were allowed in close proximity 17 to the uses mentioned above. At more than one point speakers 18 noted the deterioration of business and community neighborhoods 19 in the City of Seattle which had recently prompted Seattle to 20 impose location regulations upon adult theaters . The proximity 21 between the location of schools and the location of adult theaters 22 was a point of serious concern to many individuals present. The 23 Renton School District provides bussing service for elementary 24 students whose homes are located more than one mile from the 25 school . That was the basis of the City Council ' s adoption 26 in the ordinance of the one-mile radius from schools . Several 27 speakers noted that they choose to walk to stores , churches or 28 other public services in their neighborhoods as an alternative 29 to driving their car. Later reports to the Committee from my 30 office provided the information that public transit and retail 31 service reports show that the maximum distance the average 32 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P .4 100 SO.SECOND ST.,P.O.SOX Ste RENTON, WASHINGTON 98057 255-8678 1 person will walk to public transit or shopping activities is 2 one quarter mile. This was the basis for adoption of the 1000 3 foot radius from residential , churches, or public and quasi- 4 public uses . 5 The Planning and Development Committee later met to 6 evaluate the comments received at the public meeting and from 7 staff. Their conclusion was that the public had expressed 8 sufficient concern and provided detailed examples from the 9 City of Seattle, Tacoma and other cities to conclude that 10 adult motion picture theaters should be regulated within the 11 City of Renton on the basis of location. The Committee 12 further concluded that the area of most concern to the committee 13 was the protection and preservation of its residential areas 14 and the accessory land uses such as schools , parks, churches 15 and other public and quasi-public land uses . 16 The Planning and Development Committee presented its 17 recommendation to the full Council of the City of Renton. The 18 full City Council considered the report of the Planning and 19 Development Committee, including the issues which had been 20 previously raised by the city staff and the public at the public 21 meetings . Based upon the comments, recommandations and debate 22 on the floor of the Committee, the City Council adopted the 23 proposed ordinance on April 23 , 1981 as Ordinance No . 3526. 24 The adoption of the ordinance was based upon good zoning 25 principles and was founded upon extensive public testimony 26 and research of such matters of location regulation of adult 27 entertainment land uses . The Council adopted standards for 28 location of adult entertainment land uses based upon the 29 express concern that certain types of land use activities , 30 parks, residential neighborhoods, schools and churches would 31 be adversely impacted by adult motion picture theaters . As a 32 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. P. 5 ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.SOX Ste RENTON, WASHINGTON 98057 255-8678 1 result, the Council developed criteria for location of adult 2 theaters in order that they would not improperly and adversely 3 effect the stability of the community of the City of Renton. 4 The location regulations adopted in Ordinance No . 3526 5 do not eliminate the location of an adult theater within. the 6 City of Renton. As illustrated on the attached map of the City 7 of Renton, there is approximately 400 acres of land within the 8 City of Renton which does not fall within the location 9 regulations . With two exceptions , the property in question is 10 undeveloped. Most of the parcels of property within the 400 11 acres is appropriately zoned for adult theater use. Furthermore, 12 pursuant to the Comprehensive Plan of the City of Renton, all 13 of the locations are designated as being appropriate for commercial " activities , thus paving the way for re-zoning of those properties 15 which are not presently zoned for adult theater uses . 16 By way of comparison, the ordinance of the City of Seattle 17 which has been upheld by the Washington State Supreme Court 18 provides an area of only 250 acres in the central business 19 district of the City in which adult theaters may be located. 20 The City of Seattle has a total acreage of 56 , 320 acres . The 21 area available for adult theaters comprises less than .O44% of the 22 total acreage in the City. On the contrary, the City of Renton 23 has a total acreage of 9, 635 acres , with approximately 400 24 acres or 4. 17 of the City' s land area available for development 25 of adult theaters . This is nearly ten times the proportionate 26 area of the City of Seattle. Renton' s population is 7% of Seattle ' s . 27 The result of the location regulations set forth in the 28 ordinance is an ordinance which will protect the vitality, 29 economic health and business welfare of its citizens from 30 adverse effects of adult theater uses, without prohibiting the 31 rights of its citizens to patronize such theaters if the uses 32 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. P. 6 ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX III RENTON. WASHINGTON 98057 255-8678 1 choose to locate within the City of Renton. In any event, adult 2 entertainment uses are widely available within the City of 3 Seattle and King County generally. 7 4 5 .74 4:CL/W(E-60 - avi R. emens 6 7 8 SUBSCRIBED AND SWORN to before me January 27 , 1982 . 9 10 /Notary Public in and for the Sta --__ 11 of Washington, residing at Renton 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 AFFIDAVIT OF DAVID R. CLEMENS P. 7 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.BOX 6f6 RENTON. WASHINGTON 98057 255-8678 Y&-,-,, I c 1 . (iii 1.:1 . 4 ., - NB r t. , , r 1 AREAS WHERE ORD.* 3526 DOES NOT APPLY ( �`G --�—� ■ �( m7 _....„ \ 1, r► �j. `+. LAKE 1' * WASHNGTON , ,� _..�� \ IIIMM -- lw\'- urilliffil=411"14 I ! i lallui=jall.kg4 - -- it _ ,:, 4 ■ram Fi• -111:11 i ylib\N- 11100 � Ift � `ell t.‘affeA4dilimpliii. 1 ■ . ij 7 I a`�■Lfi t" Milligwa;#1 tit, �� stl- e" **OP — . im .. N \1\ '4d1 -1W ---"Nita--0 .... 7 , \...,...,4411,....... ,... , _ 11 -Ott PP* II" ----f''''''''----------,1)* r , .11_ 1 \ sv... .. .„::, vit,, 41„-t-sp. - __. , TtNotrt.1,2.-411:- ...-mok. -- 1 •.---'' NI ,,, ...,_, . . . watt, ._-----..Aii 1 letiltkal I ir a 1 L AREAS WHERE ORD.* 3526 DOES NOT APPLY 'e�` I►= ��'y1 yr ��` llll��. r e VitillE .''` I 1 Hr 1 1 ..\' 1 ,... 1LAKE L, YOUNGS LL . IMEIR 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES , INC. , a ) 11Washington corporation, et al , ) Plaintiffs ) 12 ) NO . C82-59M vs ) 13 ) AFFIDAVIT OF DAVID R. CLEMENS THE CITY OF RENTON , et al ) IN SUPPORT OF CITY OF RENTON' S 1 -4 ) MOTION FOR SUMMARY JUDGMENT Defendants ) 15 ) 16 — ) ) 17 THE CITY OF RENTON, a municipal ) 18 corporation, ) ) Plaintiffs )19 ) NO. C82-263R vs ) 20 ) PLAYTIME THEATRES , INC. , a ) 21 Washington corporation , et al ) ) 22 Defendants ) 23 -- - ) 24 STATE OF WASHINGTON ) ss 25 COUNTY OF KING ) 26 DAVID D. CLEMENS , being first duly sworn on oath deposes • 27 and says : 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 1 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX 626 RENTON. WASHINGTON 98057 255-8678 1 1 . I am the City of Renton' s Policy Development Director 2 and make this Affidavit from my own personal knowledge . 3 2 . I have been involved with assisting the Renton City 4 Council in its Adult Land Use Entertainment Ordinances from the 5 start and assisted in providing information to the Council with 6 respect to Ordinances No . 3526 and 3629 . I previously appeared 7 as a witness in the Temporary Restraining Order Hearing in this 8 case , having been called by the Plaintiffs . 9 3. The City Council of the City of Renton did enact 10 Ordinance No. 3629 on the date of May 3 , 1982 . A certified copy 11 of that Ordinance is attached hereto for the Court ' s information. 12 4. Attached hereto is a one page map of the City of Renton. 13 'Shown on that map in solid colored_ areas are those places in the 14 City of Renton where an Adult Entertainment Land Use would be 15 permitted under Ordinance No. 3629 , the most recent Ordinance . 16 5. The land contained within the solid colored areas is 17 in all stages of development from raw land to developed, improved 18 and occupied office space , warehouse space and industrial space . 19 6. The total area within the solid colored areas is five 20 hundred twenty (520) acres . Included in the 520 acres is twenty- 21 seven (27) acres of City property, twenty-two (22) acres as a green- 22 belt area and five (5) acres as a proposed fire station site . 23 7 . There has been a recent Local Improvement District 24 which extended Lind Avenue , which runs north and south through 25 the middle of these properties . That roadway was built as a four 26 lane major arterial . Construction is to begin soon on LID #314, 27 which will improve freeway access and construct several east-west 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 2 ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255.8678 1 roads that will connect in with previously developed Lind Avenue . 2 Additionally , the City is in the midst of widening and substantially 3 improving S .W. 43rd Street which runs along the southerly boundary 4 of the City and provides access to most of this parcel from the 5 Valley Freeway . 6 8. It should also be noted that the land in this area is 7 serviced on the north by 1-405 , and on the east by SR167 , the 8 Valley Freeway . These roadways provide good access on the north , 9 east , south and through the middle of the solid colored properties . 10 11 12 David R. C emens 13 SUBSCRIBED AND SWORN to before me this it day of May , 1982 . 14 15 L, r '. . 16 Not Public in and for the State of Washington, residing 17 at Renton 18 19 20 21 22 23 24 25 26 27 • 28 AFFIDAVIT OF DAVID R. CLEMENS WARREN & KELLOGG. P.S. Page 3 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX ate RENTON. WASHINGTON 98057 255-8678 . . . . ` \ l | 1 2 Honorable Philip K. Sweigert , Magistrate 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 Washington corporation, et al. , ) ) NO . C82-59M 12 Plaintiffs ) ) 13 vs ) 14 THE CITY OF RENTON, et al, ) 15 Defendants. ) - ) 16 ) THE CITY OF RENTON, a municipal ) NO. C82-263R 17 corporation, ) ) MEMORANDUM IN SUPPORT OF MOTION 18 Plaintiffs, ) FOR SUMMARY JUDGMENT 19 vs ) 20 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al . , ) 21 ) Defendants. ) 22 _ ) 23 I. STATEMENT OF FACTS 24 City of Renton Ordinance No . 3526 was enacted by the 25 City Council on April 13, 1981 and became effective thirty (30) 26 days after its publication on May 15, 1981 . This suit was 27 commenced in early 1982 after the Plaintiffs purchased two 28 theaters within the City of Renton which are clearly within the MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX 020 P. 1 RENTON, WASHINGTON 98037 255-8878 1 the proscribed distance from which Ordinance No . 3526 provides 2 for separation of adult motion picture theaters (as described 3 by the ordinance) from residential zones and uses , churches 4 and schools . - 5 On May 3, 1982, the City Council of the City of Renton 6 adopted, and the Mayor approved Ordinance No . 3629 which 7 amended in several areas the provisions of Ordinance No . 3526 . 8 The principal amendments are as follows : 9 a. Findings of fact which the City Council found to be 10 true as of its adoption of Ordinance No . 3526 on April 13 , 11 1982, reduced to writing. 12 b. Findings of fact as to the facts which the City Council 13 found to be true as of the adoption of Ordinance No. 3629 on 14 May 3, 1982, were adopted. 15 c . The word "used" is further defined to be a continuing 16 course of conduct of exhibiting "specific sexual activities" 17 and "specified anatomical areas" in a manner which appeals to 18 a prurient interest. 19 d. The amending ordinance provided that uses which are 20 in violation of the provisions of Ordinance No. 3526 as amended 21 are declared to be a public nuisance and shall be abated by 22 civil action filed by the City Attorney and not by criminal 23 enforcement proceedings. 24 e . Ordinance No . 3526 provides that adult motion picture 25 theaters were to be separated from schools by a distance of 26 one mile. Ordinance No. 3629 reduces that distance to 1000 27 feet. 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. P . 2 ATTORNEYS AT LAW tOO SO. SECOND ST., P. O. DOX 626 RENTON. WASHINCTON 98057 255-8878 1 f . Ordinance No . 352E contained no severability clause. 2 Ordinance No. 3629 adds such a severability clause to 3 Ordinance No . 3526 . 4 The City of Renton ordinance was based upon the U. S . 5 Supreme Court holding in Young v. American Mini Theater , Inc . , 6 et al , 427 U. S . 50, 96 S. Ct . 2440, 49 L. Ed . 2d 310 (1976) . 7 In adopting Ordinance No . 3526 in April 1981 , the City used 8 language virtually identical to that contained in the operative 9 parts of the Detroit zoning ordinance. Subsequently, the 10 ordinance was modified, as detailed above, as part of the City' s 11 continuing zoning jurisdiction, to make the ordinance the least 12 intrusive possible enactment in line with Young v. American 13 . Mini Theater, Inc . , supra and a series of other federal cases . 14 According to the Affidavit of David R. Clemens, in 15 support of Defendant' s motion for summary judgment, Ordinance 16 No . 3629 leaves a substantial portion of the business 17 zoned property within the City of Renton available for the use 18 proposed by the Plaintiff in this action. Under the authority 19 of Young, supra, the ordinance is facially valid and has been 20 approved by the United States Supreme Court. With the rather 21 large area in which Plaintiffs can operate, it is clear there 22 is no impermissible time, place or manner restriction on 23 Plaintiffs ' First Amendment rights. This case is ripe for entry 24 of summary judgment in favor of the City of Renton both as to 25 the First Amendment issue and the claim of damages under 42 U. S . C . 26 §1983 and 1988. 27 28 MEMORANDUM IN SUPPORT OF MOTION FOR SU?va1ARY JUDGMENT P . 3 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 60. SECOND ET., P. O. DOX 62• RENTON, WASHINGTON 98057 255.8678 • 1 I I . AUTHORITY 2 A. THE ORDINANCES ADOPTED BY THE CITY OF RENTON ARE VALID AND CONSTITUTIONAL REGULATIONS OF PLAINTIFFS ' 3 ASSERTED FIRST AMENDMENT RIGHTS . 4 On June 24, 1976 the U. S. Supreme Court upheld a district 5 zoning ordinance relating to the use of property for : (1) "Adult 6 Motion Picture Theater", (2) "Adult Book Store", and (3) "Adult 7 Mini Motion Picture Theater" in Young v. American Mini Theatre, 8 Inc. , et al, supra. There, the defendants attacked the zoning g ordinance on grounds of vagueness .1/ In rejecting these 10 "vagueness" claims, against the Detroit ordinance, Justice Stevens 11 applied the rule of law expressed in Erznoznik v. City of 12 Jacksonville, 422 U. S. 205, at 216, 95 S. Ct. 2268, 45 L. Ed. 2d 25 13 (1975) , that "if the statute' s deterrent effect on legitimate is 14 'readily subject to a narrowing construction by the state courts ' " 15 then, the litigant would not be "permitted to assert the rights 16 of third parties' in the abstract ./ See also Village of Hoffman 17 Estates v. Flipside, Hoffman Estates, Inc . , _U. S.__, 102 S. Ct , 18 71 L.Ed. 2d. 362, 369 (1982) . 19 1/ See Young, supra, at page 58: "There are two parts to Respondents' 20 claim that the ordinances are too vague. They do not attack the specificity of the definition of "Specified Sexual Activities" or "Specified Anatomical 21 Areas." They argue, however, that they cannot determine how much of the described activity may be permissible before the exhibition is "characterized 22 by an emphasis" on such matter. In addition they argue that the ordinances are vague because they do rot specify adequate procedures or standards for 23 obtaining a waiver of the 1,000-foot restriction." 24 2/ See Young, supra, at page 58-59: "We find it unnecessary to consider the validity o either of these arguments in the abstract. For 25 even if there may be some uncertainty about the effect of the ordinances on other litigants, they are unquestionably applicable to these Respondents. 26 The record indicates that both theaters propose to offer adult fare on a regular basis. Neither Respondent has alleged any basis for claiming or 27 anticipating any waiver of the restriction as applied to its theater. It is clear, therefore, that any element of vagueness in these ordinances has not 28 affected these Respondents. To the extent that their challenge is predicated (Footnote continued on next page) WARREN & KELLOGG. P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. BOX 626 SUMMARY JUDGMENT RENTON. WASHINGTON 98057 P. 4 255-8678 1 Upon examining the language of the Detroit zoning 2 ordinance Justice Stevens, speaking for a plurality of the 3 Court , found that both conditions existed; first, that the 4 deterrent effect of the language was not "both real and 5 substantial" and secondly, that the language was "readily 6 subject to a narrowing construction by the state courts" , 7 at page 60: 8 "We are not persuaded that the Detroit zoning ordinances will have a significant deterrent effect 9 on the exhibition of films protected by the First Amendment. As already noted, the only vagueness in 10 the ordinances relates to the amount of sexually 11 explicit activity that may be portrayed before the material can be said to be ' characterized by an 12 emphasis' on such matter. For most films the question will be readily answerable; to the extent that an area 13 of doubt exists, we see no reason why the ordinances are not 'readily subject to anarrowing construction by the state -courts . Since there is surely a less 14 - vital interest in the uninhibited exhibition of material 15 that is on the borderline between nomography and artistic expression than in the free dissemination of ideas of 16 social and political significance, and since the limited amount of uncertainty in the ordinances is easily 17 18 on inadequate notice resulting in a denial of procedural due process under the Fourteenth Amendment, it must be rejected. Cf. Parker v. Levy, 417 US 19 733, 754-777, 41 L.Ed. 439, 94 S.Ct. 2547. 20 Because the ordinances affect communication protected by the First Amendment, respondents argue that they may raise the vagueness issue even 21 though there is no uncertainty about the impact of the ordinances on their 22 own rights. On several occasions we have determined that a defendant whose own speech was unprotected had standing to challenge the constitutionality 23 of a statute which purported to prohibit protected speech, or even speech arguable protected. This exception from traditional rules of standing to 24 raise constitutional issues has reflected the Court's judgment that the very existence of some statutes may cause persons not before the Court to 25 refrain from engaging in constitutionally protected speech or expression. See Broadrick v. Oklahoma, 413 US 601, 611-614, 37 L.Ed. 2d. 830, 93 S.Ct. 2908. 26 The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas. Nevertheless, if the 27 statute's deterrent effect on legitimate expression is not 'both real and substantial, ' and if the statute is 'readily subject to a narrowing 28 construction by the state courts, ' see Erznoznik v. City of Jacksonville, 422 US 205, 216, 45 L.Ed.2d 125, 95 S.Ct. 2268, the litigant is not permitted to assert the rights of third parties." WARREN & KELLOGG. P.S. MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS AT LAW SUMMARY JUDGMENT +OD•O. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 98057 p 5 255-8678 1 susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the 2 hypothetical claims of persons not before the Court. " (Emphasis added) 3 In his ruling, Justice Stevens noted in Young, supra , 4 at page 71 , that this was an area of the law in which "the- city' s 5 interest in attempting to preserve the quality of urban life is 6 one that must be accorded high respect. Moreover , the City must 7 be allowed a reasonable opportunity to experiment with solutions 8 to admittedly serious problems. " 9 The City contends that, because Renton Ordinance No . 3526 10 11 contains the identical language used in the Young case, this Court is required to adhere to Judge Stevens ' plurality opinion 12 13 which holds that such language is not susceptible to attack in 14the federal courts because it is, as a matter of law, "readily 15subject to a narrowing construction by the state court . " The City has taken additional legislative action to 16 17 clarify some of the uncertainties which the Your court - 18acknowledged (and also readily accepted) . Subsequent to oral 19arguments on Defendant' s Motion to Dismiss on March 12, 1982, 20the City Council affirmatively acted to amend the Renton ordinance 21 and to add by legislative means the "narrowing construction" 22 which Justice Stevens stated was sufficient to keep the matter 23 outside of the jurisdiction of the Federal Court. 24 The problem of irreparable harm which was created by the 25 threat of criminal prosecution in Steffel v. Thompson, 415 U. S . 452, 26 has been overcome by the requirement that the governmental action 27 under the city ordinance be restricted to civil process . Whereas 28 the Plaintiffs could formerly claim, as did Steffel , to be in fear MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW ,00 SO. SECOND ST.. P. O. BOX 620 P . 6 RENTON. WASHINGTON 98057 255-8678 1 of a criminal action for violation of the law, which constituted 2 "irreparable injury" to establish the basis for federal 3 jurisdiction for issuance of an injunction, that claim can no 41onger be urged in these proceedings . The only risk of harm 5that the Plaintiffs now face is the possible adverse judgment 6 of a State Court in a civil action from the change in use that 7the Plaintiffs have alleged in a verified complaint that they 8intend to carry out . 9 The specific definition given to the word "used" in 10Section 1 of Ordinance 3629, passed and adopted on May 3, 1982, 11 namely, 12 "The word 'used' in the definition of "Adult 13 Motion Picture Theater ' herein, described a continuing course of conduct of exhibiting 14 ' specific sexual activities ' and ' specified anatomical areas ' in a manner which appeals 15 to a prurient interest. " 16 provides the narrowing legislative construction which Justice 17Stevens stated could be given by the State courts . See, also, 18the analysis of Justice Marshall as to the term "Designed for 19 use" in Village of Hoffman Estates v. Flipside,Hoffman Estates , 20 Inc . , U. S. , 71 L. Ed. 2d. 362, 102 S .Ct (Mar . 3, 1982) 21 The pronouncement of Section II(c) of Ordinance 3629 22 that "violations of the use provisions of this Section is declared 23 to be a public nuisance per se, which shall be abated by City 24 Attorney by way of civil abatement procedures only" , is a 25 codification of existing law, which declares in a positive manner 26 that a violation of the use provisions of Ordinance No . 3526, as 27 amended, is a public nuisance which is subject to abatement by the 28 state and city acting pursuant to its sovereign powers . McQuillan, MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 62S P . 7 RENTON. WASHINGTON 98057 255-8678 'Municipal Corporations, Vol. 8, Section 25. 11 "Zoning and 2Nuisances" at page 31 and Shields v. Spokane School District , 3No . 81 , 31 Wash. 2d. 247, 196 P . 2d . 352 (1948) , following Robinson 4Brick Co . v. Luthi, 115 Colo 106, 169 P . 2d 171 , 166 A.L .R. 655, 5cited at footnote 5 of the McQuillan text . 6 The Plaintiffs can no longer claim that every litigant ?asserting a federal right is entitled to one unencumbered 8opportunity to litigate that right in Federal District Court . 9See Allen v. McCurry, 449 U. S. 90, 101 S .Ct. 441 , 66 L. Ed. 2d. 308 n (1980) , at 103 : 11 "The actual basis of the Court of Appeals ' holding 1.2 appears to be a generally framed principle that every person asserting a federal right is entitled to one 13 unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture 14 in which the federal claim arises . But the authority for this principle is difficult to discern. It cannot 15 lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal 16 district courts to the wisdom of Congress . And no such authority is to be found in Section 1983 iteself. " 17 and at 105: 18 "The only other conceivable basis for finding a 19 universal right to litigate a federal claim in a federal district court is hardly a legal basis at 20 all, but rather a general distrust of the capacity of the state courts to render correct decisions on 21 constitutional issues. It is ironic that Stone v. Powell provided the occasion for the expression of such 22 an attitude in the present litigation, in view of this Court' s emphatic reaffirmation in that case of the 23 constitutional obligation of the state courts to uphold federal law, and its expression of confidence in their 24 ability to do so . 428 U. S . , at 493-494, n 35, 49 L. Ed. 2d 1067, 96 S. Ct. 3037; see Robb v. Connolly, 111 U. S . 25 624, 637 , 28 L. Ed. 542, 4 S .Ct. 544 (Harlan, J . ) . " 26 As illustrated by the Affidavit of David R. Clemens 27in support of City of Renton' s Notion for Summary Judgment, the 28 regulation asserted by the City of Renton under Ordinance No . 3526, MEMORANDUM IN SUPPORT OF MOTION WARREN & KELLOGG. P.S. FOR SUMMARY JUDGMENT ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOY SSG P . 8 RENTON♦ WASHINGTON 98057 255-8678 1 as amended, allows ample opportunity for exercise of First 2Amendment rights within the City of Renton as required by 3Young, supra, and Schad v. Burrough of Ephraim, U. S . 4101 S . Ct. , 63 L . Ed . 2d . 671 (1981) . The regulations being 5a reasonable time, place and manner restriction as approved 6in Young, supra , there is no impermissible restriction ?upon Plaintiffs ' asserted First Amendment rights . The ordinance 8is constitutional on its face and as applied. Plaintiffs may 9claim no element of vagueness in the ordinance. Therefore, their 10cause of action for declaratory and injunctive relief should he 11 dismissed with prejudice. 12 B. PLAINTIFFS' CLAIM FOR DAMAGES UNDER SECTION 1983 13 AND 1988 MUST BE DISMISSED BECAUSE PLAINTIFF ' S CLAIM FAILS TO STATE A CLAIM UPON WHICH RELIEF 14 CAN BE GRANTED, AND PLAINTIFFS-` CONSTITUTIONAL RIGHTS HAVE NOT BEEN INFRINGED. 15 Plaintiffs have claimed damages under 42 U. S .C . §1983 16 and 1938, which claim is premised upon their assertion of a 17violation of their constutitional rights by the enactment 18 (as opposed to the enforcement) of Ordinance No. 3526, as 19 amended. Under the rationale expressed in Allen v. McCurry, 20 449 U. S. 90, 101 S . Ct 441, 66 L. Ed. 2d. 328 (1980) , and Parratt 21 v. Taylor, U. S . 101 S . Ct. , 68 L. Ed. 2d. 420 (1981) , 22 a cause of action cannot be plead and federal jurisdiction laid 23 under 42 U. S .C . §1983' unless one of the following three 24 circumstances is shown to exist: 25 (1) The State substantive law is facially 26 unconstitutional; 27 (2) The State procedural law is inadequate to allow full litigation of a constitutional claim; or 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUt1ARY JUDGMENT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P • 100 SO. SECOND ST.. P. O. SOX 620 RENTON. WASHINGTON 98057 255-8678 1 (3) The State procedural law, though adequate in theory is inadequate in practice. 2 3In this case, none of the foregoing circumstances apply. As a 4matter of law, Ordinance 3526 is facially constitutional . See 5-- Young, supra, at 58-60. The procedural law of the State of 6Washington is adequate to allow full litigation of Plaintiffs ' 7constitutional claim, provided that the Plaintiff can state a 8case or controversy to invoke the jurisdiction of the Declaratory 9Judgment Act of the State court in the first instance. In any 10event, no inadequacy in the State system of jurisprudence 11has been shown to exist to prove that the State procedural law, 12through adequate in theory, is inadequate in practice. Therefore, 13for purposes of pleading Section 1983 damages, Plaintiffs have laclearly failed to state a claim upon which relief can be granted . 15 In any event, because the Plaintiffs ' claim for damages 16is premised upon a claim of violation of Plaintiffs ' constitutional 17rights, the arguments stated above foreclose their claim for damages . 18Following Young, supra, and Village of Hoffman Estates, supra, 19 it is clear that the City of Renton has adopted an ordinance that 20is facially constitutional, and previously approved by the 21 court, and that the State courts are now in a position to give the 22 narrowing construction anticipated in Young, supra, to the extent 23 that such a construction may be necessary following the narrowing 24 amendment contained in Ordinance No . 3629. That being the case, 25 and no showing of constitutional violation existing, Plaintiffs ' 26 claim for damages under 42 U. S.C. $ 1983 and 1988 should be 27 dismissed with prejudice. 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 10 100 SO. SECOND ST.. P. O. SOX 620 RENTON. WASHINGTON 98037 1 III 2 CONCLUSION 3 The City of Renton, through its two ordinances , has 4established an area within the City of substantial size within 5which Plaintiffs may place their adult entertainment business . 6The City has used judicially approved zoning methods and ?definitions, and thus has not infringed upon Plaintiffs ' asserted 8 First Amendment rights . That being the case, any further 9construction of the ordinance should be done by the State courts loin accordance with the plurality decision in Young, supra. "Once it is clear that this is a zoning case, and not a case 12involving violation of First Amendment rights, not only does 13 plaintiffs ' causes of action for declaratory judgment and 14injunctive relief fall, but so must their claims for damages 15under 42 U. S.C. 1983 and 1988 . There is no constitutional 16violation. The court is requested to dismiss Plaintiffs ' 17 Amended and Supplemental Complaint with prejudice. 18 19 Resp fully submitted, 20 21 Daniel Kellogg 22 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT WARREN & KELLOGG. P.S. P 11 ATTORNEYS AT LAW100 SO. SECOND ST.. P. O. BOX SzS RENTON. WASHINGTON 98057 255-8678 I 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES , INC . , a ) 10 Washington corporation , and ) KUKIO BAY PROPERTIES , INC . , ) NO. C82-59M 11 a Washington corporation , ) ) DEFENDANTS MEMORANDUM IN 12 Plaintiffs , ) OPPOSITION TO MOTION FOR ) TEMPORARY RESTRAINING ORDER 13 vs ) AND PRELIMINARY INJUNCTION 14 THE CITY OF RENTON , et al , ) 15 Defendants . ) 16 I . FACTS 17 —' A. STATUS OF ACTION : This action was commenced by 18 Plaintiffs herein , who claim a contract interest in the 19 ownership , leasing and operation of two theater buildings 20 located at 504 and 507 South Third Street , both within the 21 city limits of Renton , Washington . Plaintiffs request that 22 this Court enter a declaratory judgment declaring that City 23 of Renton Ordinance No . 3526 (hereafter "the Ordinance" ) is 24 unconstitutional , in whole or in part , under the First , 25 Fourth , Fifth , Sixth and/or Fourteenth Amendments to the 26 Constitutuion of the United States . Plaintiffs further seek 27 a preliminary and permanent injunction prohibiting the 28 enforcement by the defendants of the provisions of the 29 Ordinance . Jurisdiction is claimed to be conferred on this 30 31 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG. P.S. ATTORNEY!AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER ,00 SO. SECOND ST..P.O. s ORe:e AND PRELIMINARY INJUNCTION RENTON. WASHINGTON 98057 PAGE 255-8878 1 Court pursuant to 28 USCA Sections 1131 ( a) , 1343 ( 3 ) , 2201 , 2 and 2202 , 42 USCA Section 1983 , and Rule 57 of the Federal 3 Rules of Civil Procedure . 4 The instant motion is brought on by an Order to Show 5 Cause why a temporary restraining order should not issue 6 pending a hearing on Plaintiffs ' motion for a preliminary 7 injunction . 8 B. ORDINANCE NO. 3526 : The City Council of the City 9 of Renton adopted Renton City Ordinance No . 3526 on April 23 , 10 1981 . The Ordinance was approved by the Mayor and , pursuant 11 to the Laws of the State of Washington relating to municipal 12 corporations , became effective thirty ( 30 ) days after its 13 publication on may 15 , 1981 . A copy of Ordinance No . 3526 is 14 attached hereto as Attachment "A" . 15 The Ordinance amended existing Section 4-702 of the City 16 Code of the City of Renton . Section I of the Ordinance added 17 definitions for "adult motion theaters" , "specified sexual 18 activities" , and "specified anatomical areas" . In Section 19 II the ORDINANCE prohibited the location of an "adult motion 20 picture theater" within a circle which has a radius 21 consisting of the following distances from the following 22 specified uses or zones : 23 1000 feet of any residential zone or any single family or multiple family residential use . 24 One mile of any public or private school . 25 1000 feet of any church or other religious facility or 26 institution . 27 1000 feet of any public park or P-1 (Public District) 28 zone . The P-1 zone allows permitted uses such as governmental buildings , hospitals , public and private clinics , educational and philanthropic institutions , 29 libraries and museums , parks and playgrounds , private clubs , professional offices , residential hotels , private 30 and public schools , and quasi-public institutions . 31 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KEL ATTORNEYS ATT LAW P.S. AW MOTION FOR TEMPORARY RESTRAINING ORDER IOO SO.SECOND ST..P.O.SOXele AND PRELIMINARY INJUNCTION RENTON• WASHINGTON 98057 PAGE 2 255-ee78 1 The Ordinance was adopted by the City Council after 2 considerable study of the planning for and preservation of 3 the character of its neighborhoods . A more detailed 4 description of the procedure under which the City Council and 5 its committee reviewed these matters , and the material which 6 it considered in reaching its conclusion to adopt the 7 Ordinance is more particularly set forth in the Affidavits of 8 David R . Clemens and Gary F. Kohlwes , dated January 27 , 1982 9 and filed herein . 10 C. PRESENT CONTROVERSY : Plaintiffs assert a contract 11 interest in the purchase , leasing and operation of two 12 theater buildings located within the City of Renton . 13 Pursuant to the allegations of the complaint on file herein , 14 Plaintiff Kukio Bay Properties , Inc . , asserts that it will 15 close the purchase agreement for the theaters on or about 16 January 26 , 1982 , taking immediate possession , and that it 17 will on or about January 27 , 1982 lease the theaters to 18 Plaintiff Playtime Theatres , Inc . , for the purpose of 19 conducting therein , on or after January 29 , 1982 , feature 20 length motion picture films for adult audiences . Plaintiffs 21 admit ( see Plaintiffs Memorandum in Support of Motion for 22 Preliminary Injunction , page 9 , line 27 ) that the activities 23 contemplated by the Plaintiffs as mentioned above are such as 24 will fall within the prohibitions of the Ordinance . 25 The Defendants have asserted the validity of the 26 Ordinance and intend , in the event of a violation thereof , to 27 vigorously pursue any remedies available to them by way of 28 criminal sanction for violation of the Zoning Code , restraint 29 of the continued violation of the Zoning Code , or both . The 30 present posture of this litigation and the enactment of the 31 32 WARREN & KELLOGG. P.S. DEFENDANTS MEMORANDUM IN OPPOSITION TO ATTORNEYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER +00 SO.SECOND.T..P.O.BOXels AND PRELIMINARY INJUNCTION RENTON, WASHINOTON 98057 aaa-ae7s PAGE 3 1 Ordinance do not waive the right of the City of Renton to 2 enforce existing laws against exhibition of obscene material 3 not protected by the Constitution of the United States . 4 II . LEGAL ARGUMENT 5 A . TEST FOR ISSUANCE OF INJUNCTIVE RELIEF : 6 Federal Courts must proceed with caution and restraint 7 in considering a facial challenge to the constitutionality of 8 an ordinance . Erznoznik v . City of Jacksonville , 422 U . S . 9 205 , 216 , 95 S. Ct . 2268 , 2276 , 45 L . Ed . 2d . 125 ( 1975 ) . 10 Failure of the court to proceed with caution and restraint 11 may result in an invalidation of an ordinance which " . . .may 12 result in unnecessary interference with a state regulatory 13 program. In accommodating these competing interests the 14 Court has held that a state statute should not be deemed 15 facially invalid unless it is not readily subject to a 16 narrowing construction by the state courts , see Dombrowski v . 17 Pfister , 380 U .S. 479 , 497 , 85 S .Ct . 1116 , 1126 , 14 L . Ed . 2d . 18 22 ( 1965) , and its deterrent effect on legitimate expression 19 is both real and substantial . See Droadrick v . Oklahoma , 413 20 U . S . 601 , 612-615 , 93 S. Ct . 2908 , 2915-2917 ( 1973 ) . See 21 generally Note , The First Amendment Overbreadth Doctrine , 83 22 Harv. L . Rev . 844 ( 1970) . " 23 See also Reeves v . McConn , 631 F . 2d . 377 , 383 (5th Cir . 24 1980) . 25 Plaintiff asserts that the Federal Court should hasten 26 to grant injunctive relief, citing Dombrowski v . PfisterZ 27 supra . The Dombrowski case involved claims by an 28 organization and individuals which were active in fostering 29 civil rights for blacks in Louisiana and sought declaratory 30 and injunctive relief from prosecutions , or threats thereof , 31 for alleged violations of the Lousiana Subversive Activities 32 and Communist Control Law and the Louisiana Communist DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG, P.S. AW MOTION FOR TEMPORARY RESTRAINING ORDER SECOND ST.,YS P.O. f00 90. SECOND tT., P.O.BOX e3e AND PRELIMINARY INJUNCTION RENTON, WASHINGTON 98057 PAGE 4 255-8878 1 Propaganda Control Law. As stated so eloquently by Chief 2 Justice Burger in Schad v . Borough of Mt . Ephraim , U . S . 3 , 101 S. Ct . _, 68 L . Ed . 2d . 671 , 692 ( 1981 ) , to draw 4 an analogy between the fundamental values which Dombrowski 5 sought to protect and the fundamental values claimed in this 6 case tends to trivalize and demean the First Amendment to the 7 U . S. Constitution . 8 As will be more particularly shown , the Ordinance is not 9 facially invalid for vagness or overbreadth , but is a 10 reasonable regulation of the place in which "adult motion 11 picture theaters" may be located within the City of Renton . 12 The Ordinance has only an incidential effect upon the 13 exercise of First Amendment liberties within the City of 14 Renton . As such , it is not an impermissible restraint on 15 free speech . Furthermore , the ordinance does not involve a 16 taking of property without due process since it will be shown 17 that the Plaintiffs have caused their own damage by 18 purchasing and leasing the theaters with full knowledge of 19 the enactment of the Ordinance complained of . As in 20 Wigginess , Inc . v . Fruchtman , 482 F . Supp 681 ( S . D . N . Y . 21 1979 ) , affirmed by unpublished opinion , 628 F .2d 1346 ( 1st 22 Cir . 1980 ) , cert . den . 449 U .S. 842 ( 1980 ) , Plaintiffs here 23 have failed to establish that they will suffer irreparable 24 injury from the denial of the provisional injunctive relief 25 requested . No competent evidence is presented to support - 28 Plaintiffs ' conjecture as to injury . "Unsubstantiated 27 allegations of injury cannot provide the basis for 28 establishing the irreparable harm required for an injunction 29 to issue . " Wigginess , supra , at 692. Therefore , being able 30 to show no irreparable injury, Plaintiffs have not satisfied 31 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO Wp`RRAT & KELTORN[Y•AT LAWTLAW P.S. MOTION FOR TEMPORARY RESTRAINING ORDER i00 SO.SECOND ST., P.O.SOX ete AND PRELIMINARY INJUNCTION RENTON, 2553-8678N 9e067 8878 PAGE 5 1 the elements set forth in Jack Kahn Music Co . v . Baldwin 2 Piano & Organ Co. , 604 F .2d 755 , 758 (2nd Cir . 1979 ) , and are 3 not entitled to injunctive relief. 4 B. THE ORDINANCE IS NOT INVALID ON ITS FACE OR AS 5 APPLIED : Plaintiffs allege that the Ordinance is 6 unconstitutional on its face and as threatened to be applied 7 against them and therefore deprives ' the Plaintiffs of Due 8 Process and Equal Protection of the Law by reason of alleged 9 "vagueness" , "overbreadth" , and "deprivation of liberty 10 and/or property interests" of the Plaintiffs . 11 1 . Vagueness : First of all , Plaintiffs appear to 12 have abandoned the argument that the Ordinance is 13 unconstitutional because of vagueness for the purpose of the 14 instant motion . The vagueness of the Ordinance alleged in 15 the plaintiffs ' complaint is nowhere argued in Plaintiffs ' 16 Memorandum in Support of Motion for Preliminary Injunction . 17 In any event , Plaintiffs have admitted that their proposed 18 operations will fall within the scope of the definitions set 19 forth in the Ordinance . Therefore , Plaintiffs have no 20 standing to litigate the issue of vagueness . Young v . 21 American Mini Theaters , Inc . , 427 U . S. 50 , 61 , 96 S . Ct . 2440 , 22 2447 , 49 L . Ed . 2d . 310 ( 1976) , rehearing denied 429 U . S . 873 , 23 97 S. Ct . 191 ( 1976 ) . The theater owners in Young claimed 24 vagueness on its face and as applied . The Supreme Court was 25 not persuaded . It held that the ordinance was not 26 unconstitutional for vagueness as applied to the theater 27 owners because they indicated they proposed " . . . to offer 28 adult fare on a regular basis . " At 61 . Therefore , they were 29 not affected by any element of vagueness . See also Hart 30 Bookstores, Inc . v . Edmisten , 612 F. 2d . 821 , 833 (4th Cir . 31 1979 ) ; Genusa v . City of Peoria , 619 F .2d . 1203 , 1209 (7th 32 Cir . 1980) . DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG. ATT LAW P.S. AW MOTION FOR TEMPORARY RESTRAINING ORDER IOO SO.SECOND ST..P.O.SOX 626 AND PRELIMINARY INJUNCTION RENTO N. WASHINOTON 98057 PAGE 6 255-8878 1 Plaintiffs have attempted to advance vagueness 2 arguments on behalf of others under the so-called doctrine of 3 "vicarious standing" . In Young , supra , the Supreme Court 4 held that the case was not appropriate for adjudication of 5 hypothetical claims of others because the court was not 6 persuaded the ordinance would have a " . . . significant 7 deterrent effect on the exhibition of''films protected by the 8 First Amendment" , there being a " . . . less vital interest in 9 the uninhibited exhibition of material that is on the 10 borderline between -pornography and artistic expression than 11 in the free dissemination of ideas of social and political 12 significance , and since the limited amount of uncertainty in 13 the ordinances is easily susceptible of a narrowing 14 construction . . . . " at 61 . 15 Following Young , Genusa , supra , held that the 16 doctrine of "vicarious standing" was not without limits . 17 Article III case or controversy requirements must be 18 satisfied . In addition to the requirement in Young that the 19 doctrine not be applied if the challenged ordinance is 20 subject to a narrowing construction by the State courts , and 21 is not so vague or overbroad that there exists a "real and 22 substantial" possibility that the existence of the ordinance 23 may cause persons other than the plaintiffs to refrain from 24 engaging in protected expression . Genusa , supra , at 210 . 25 The definitions of "adult motion picture theater" , 26 " specified sexual activities" and " specified anatomical 27 areas" as set forth in the Ordinance are virtually identical 28 with the definitions before the Supreme Court in Young . 29 There the Supreme Court stated , in the majority opinion 30 authored by Justice Stevens , that there was no reason why the 31 ordinances in question were not " . . . readily subject to the 32 narrowing construction by the State courts" . At 61 . The DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG. P.S. ATTORNEYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER IOOSO.SECOND ST..P.O.BOX s:e AND PRELIMINARY INJUNCTION RENTON, WASHINGTON 28057 PAGE 7 255-8678 1 exception for assertion of "vicarious standing" did not 2 prevail in Young because the Court determined that the 3 ordinance in question would not have a significant deterrent 4 effect on exhibition of films protected by the First 5 Amendment . As will be shown in greater detail later in this 6 brief, Defendants maintain that this same holds true in the 7 instant case . Therefore , having no standing to raise this 8 issue for others , and there being no vagueness as to the 9 Plaintiffs themselves , Plaintiffs have not been denied due 10 process of law. 11 2. Overbreadth : Plaintiffs complain that the 12 Ordinance is overbroad in the definition of " specified 13 anatomical areas" and "specified sexual activities" . This 14 matter is dispensed with in Young where , in Footnote 17 , 15 the Supreme Court reviewed the circumstances in which claims 16 of facial overbreadth have been entertained . Supra , at 60 . 17 The instant case does not present a regulation of " . . .only 18 spoken words , . . . statutes which , by their broad sweep might 19 result in burdening innocent associations , . . . statutes by 20 their terms which , purport to regulate the time , place and 21 manner of expressive or communicative conduct , . . . or where 22 such conduct has required official approval under laws that 23 delegated standardless discretionary power to local 24 functionaries , resulting in virtually unreviewable prior 25 restraints on First Amendment rights . " Youn , at 60 . The 26 Ordinance does not regulate the time or manner of expressive 27 or communicative conduct . It only pursues the lawful and 28 necessary aim of the City of Renton to plan for and regulate 29 the use of property within the City of Renton . No official 30 approval is required and therefore no standardless 31 discretionary power exists . In any event , it is proper to 32 assume that the officials of the City of Renton " . . .will DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG, P.S. ATTORNCYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER ,OO 9O.SECOND ST.. P.O. SOXeie AND PRELIMINARY INJUNCTION RENTON. WASHINGTON 98057 PAGE 8 255.8e7e 1 abide by the fair and reasonable implication of their own 2 regulatory scheme" , Verrilli v . City of Concord , 54+8 F . 2d 3 262 , 265 ( 1977 ) , and will , as the body charged with its 4 enforcement provide a narrowing construction of the 5 ordinance . Chulchian v . City of Indianapolis , 633 F. 2d 27 , 6 31 ( 1980) . 7 D . THE ORDINANCE IS A REASONABLE REGULATION OF THE 8 PLACE WHERE PROTECTED SPEECH MAY OCCUR AND IS NOT AN 9 IMPERMISSIBLE PRIOR RESTRAINT ON FREE SPEECH : Under the 10 doctrine set forth in the plurality majority opinion in 11 Young, supra , at 62 , there is no doubt 12 " . . that the municipality may control the location of theaters . . . . The mere fact that the commercial 13 exploitation of material protected by the First Amendment is subject to zoning and other licensing 14 requirements is not a sufficient reason for invalidating these ordinances . . The city ' s interest in planning 15 and regulating the use of property for commercial 16 purposes is clearly adequate to support that kind of restriction applicable to all theaters within the City limits . In short , apart from the fact that the 17 ordinances treat adult theaters differently from other theaters and the fact that the classification is 18 predicated on the content of material shown in the respective theaters , the regulation of the place where 19 such films may be exhibited does not offend the First Amendment . Reasonable regulations of the time , place 20 and manner of protected speech , where those regulations 21 are necessary to further significant governmental interests , are permitted by the First Amendment . Young , 22 at 62-63 , and Footnote 18 (citations omitted ) . 23 As shown in the evidence before the Court and under Young , the City of Renton has a clear interest in planning 24 for and regulating the use of property within the City of 25 Renton . The evidence before the Court is clear that the City 26 Council considered substantial and persuasive evidence upon 27 which to base their reasonable locational regulation was 28 adopted . As in Young , the Ordinance does not place a limit 29 upon the total number of adult theaters which can operate 30 31 within the City of Renton , it does not deny exhibitors access to the market , and it does not inhibit the viewing public 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KSATLAW , P.S. MOTION FOR TEMPORARY RESTRAINING ORDER ATTORNEYS AT O. foo 30.SECOND HT.. P.O.COX 7 AND PRELIMINARY INJUNCTION RENTON. WA8NINOTON 980s7 PAGE 9 253.ee78 1 from seeking out this type of entertainment . As in Youn , 2 the market for such material within the City of Renton is 3 essentially unrestrained since , as set forth in the evidence 4 before the Court , there is ample area within the corporate 5 limits of the City of Renton within which an exhibitor may 6 operate , and the viewing public may seek this form of 7 entertainment . The Ordinance makes no' attempt to dissuade or 8 restrict exhibitors or the viewing public from utilizing 9 adult motion picture films and certainly does not attempt to 10 censor the motion pictures themselves or impose any 11 limitation on their content . 12 Plaintiffs claim that the effects of the Ordinance upon 13 their First Amendment rights are immediate and direct in that 14 the Plaintiffs cannot operate their movie theater without 15 subjecting themselves to violation of the Ordinance . This is 16 simply not the case . 17 First of all , and most importantly , there is ample 18 opportunity for the Plaintiffs to exhibit their films , 19 assuming that the films are pornographic and not obscene , in 20 the areas of the City which are not effected by the narrowly 21 drawn regulations of the Ordinance . Plaintiffs allege that 22 they will have invested $800 ,000 .00 in the purchase and 23 equipping of the subject theaters . There are numerous 24 existing buildings , as well as vacant parcels of land within 25 the corporate boundaries of the City of Renton and outside of 26 the areas covered by the Ordinance , on which the Plaintiffs 27 could establish their theaters . As stated by Justice Powell 28 in concurring in Young , 29 "the constraints of the ordinance with respect to 30 location may indeed create economic loss for some who are engaged in this business but in this respect they 31 are effected no differently from any other commercial enterprise that suffers economic detriment as a result 32 of land use regulation . The cases are legion that WARREN & KELLOGG, P.S. DEFENDANTS MEMORANDUM IN OPPOSITION TO ATTORNEYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER +00s0.SECOND ST., P.O.SOX SIS RENTON, WASHINGTON 98057 AND PRELIMINARY INJUNCTION 255-8578 PAGE 10 1 sustain zoning against claims of serious economic damage . See , e . g . , Zahn v . Board of Public Works , 274 2 U .S. 325 , 47 S. Ct . 594 , 71 L . Ed . 1074 ( 1927 ) . 3 "The inquiry for First Amendment purposes is not concerned with economic impact ; rather it looks only to 4 the effect of this ordinance upon freedom of expression . This prompts essentially two inquiries : ( i ) Does the 5 ordinance impose any content limitation on the creators of adult movies or their ability to make them available 6 to whom they desire , and ( ii ) does it restrict in any significant way the viewing of these movies by those who 7 desire to see them? On the record in this case , these inquiries must be answered in the negative . At most the 8 impact of the ordinance on these interests is incidental and minimal . " Young , at 78 . 9 Renton , like Detroit , has " . . . silenced no message , has 10 invoked no censorship , and has imposed no limitations upon 11 those who wish to view them. The ordinance is addressed only 12 to the places at which this type of expression may be 13 presented , a restriction that does not interfer with content . 14 Nor is there any significant overall curtailment of adult 15 movie presentation , or the opportunity for a message to reach 16 the audience . " Young , at 78-79 . 17 Secondly , the Plaintiffs were not impacted by the 18 Ordinance until they , with full knowledge of the existence of 19 the ordinance , elected to commit themselves to the purchase 20 and lease of the two theaters in the City of Renton . This 21 slight impact , is imposed by the Plaintiffs themselves , 22 23 rather than by the City of Renton . Finally, as noted in Shad , supra , at 671 , the protected 24 speech to which the Plaintiffs lay claim are readily 25 available within the Greater Seattle-King County area . The 26 Plaintiffs themselves are actively engaged in the exhibition 27 of adult films within the BM , CM and CMT zones within the 28. City of Seattle . Even assuming that the Renton ordinance is 29 an impermissible prior restraint of their First Amendment 30 31 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLo6G. P.S. ATTORNCTe AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER IOO SO.SECOND ST..►.O.eoxe:e AND PRELIMINARY INJUNCTION RENTON, WASHINGTON 98057 255-8878 PAGE 11 1 rights within the City of Renton , this defect is cured by the 2 availability of such, film fare within such a short distance 3 within the City of Seattle and elsewhere . 4 Therefore , the Ordinance complained of is a reasonable 5 regulation of the place at which such exhibition shall be 6 allowed in line with the City of Renton ' s legitimate interest 7 in regulating and planning for th character of its 8 neighborhoods . The ordinance does not constitute an 9 impermissible prior restraint on free speech . 10 E . CLASSIFICATION OF ADULT THEATERS BASED ON CONTENT 11 IS NOT A DENIAL. OF EQUAL PROTECTION . Plaintiffs claim that 12 the Ordinance creates a classification based upon the content 13 of protected expression that is not rationally related to a 14 valid public purpose nor necessary to the achievement of a 15 compelling governmental interest . However , in Young , supra , 16 the Supreme Court pointed out once again that there are 17 circumstances under which the state may restrict the 18 distribution or exhibition of protected materials without 19 violation of the equal protection clause . At 69 . As Justice 20 Stevens pointed out in the majority opinion , joined by three 21 other Justices , " . . . the Members of the Court who would accord 22 the greatest protection to such materials have repeatedly 23 indicated that the State could prohibit the distribution or 24 exhibition of such materials to juveniles and unconsenting 25 adults ." In Footnote 33 , the Court quotes Justice Brennan , 26 in a dissent joined by Justice Stewart and Justice Marshall 27 as follows : 28 "I would , hold therefore , that at least in the absence of distribution to juveniles or obstrusive exposure to 29 unconsenting adults , the First and Fourteenth Amendments prohibit the State and Federal governments from 30 attempting wholly to supress sexually oriented materials on the basis of their allegedly 'obscene ' contents . 31 Nothing in this approach precludes those governments 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG. P.S. ATTORNEYe AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER IOO5O.SECOND ST.. P.O.BOXe:e AND PRELIMINARY INJUNCTION RENTON, WA5HINGTON 98057 PAGE 12 2ss.sa7a 1 from taking action to serve what may be strong and legitimate interests through regulation of the manner of 2 material of sexually oriented material . " 3 Paris Adult Theater I v . Slaton , 413 U . S . 49 , 73 , 93 S . Ct . 4 2628 , 2665 , 37 L . Ed . 2d . 446 . 5 Justice Stevens continues to point out that the interest 6 in protecting expression of erotic materials is different , 7 and of a lesser magnitude , than the interest in protecting 8 political debate , and concludes " . . . the State may 9 legitimately use the content of these materials as the basis 10 for placing them in a different classification from other 11 motion pictures . " at 70 . This classification is justified by 12 the City' s interest in preserving the character of its 13 neighborhoods , the fundamental question upon which Young and 14 its following cases depend . 15 The legislative act which Plaintiffs challenge here is a 16 zoning enactment , a function long recognized as within the 17 power and authority of the municipality to provide for the 18 protection of public health , safety and welfare . Village of 19 Euclid v . Ambler Realty Company , 272 U . S. 365 , 71 L . Ed . 303 , 20 47 S . Ct . 114 ( 1926 ) . Indeed , Justice Powell , in his 21 concurring opinion called the zoning function " . . . perhaps 22 ' the most essential function performed by local government , 23 for it is one of the primary means by which we protect that 24 sometimes difficult to define concept of quality of life . '" 25 Village of Beltare v . Boraas , 416 U . S. 13 , 9N S . Ct . 1543 26 ( 1974 ) . In Stansberry v . Holmes , 613 F .2d 1285 , 1288 (5th 27 Cir . 1980 ) , the Court of Appeals reviewed the Supreme Court ' s 28 attitude toward review of local zoning : 29 "The Supreme Court has recognized the key role that the zoning power can play in maintaining for citizens an 30 acceptable quality of life . Zoning is the local 31 community ' s most powerful weapon against a wave of commercialism that threatens to permeate not only the 32 major thoroughfares but the quiet residential neighborhoods with their parks , trees , and children at DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG. P.S. MOTION FOR TEMPORARY RESTRAINING ORDER too eo.SECOND ST.,AT LAW P.O.BOX a:e AND PRELIMINARY INJUNCTION RENTON, WASHINGTON 98057 PAGE 13 255.867e 1 play. Without the power to zone , every person would be at the mercy of the entrepreneur who chose to develop on 2 the next corner . Zoning provides one of the firmest and most basic of the rights of local control . Since 1928 , 3 the Supreme Court has never held that a zoning measure exceeded the police power . In Berman v . Parker , 348 4 U .S. 26 , 33 , 75 S. Ct . 98 , 102 , 99 L . Ed . 27Z1951 , the Court held that land use regulations may promote "values 5 [which] are spiritual as well as physical , aesthetic as well as monetary . " In Village of Belle Terre v . Boraas , 6 416 U .S . 1 , 9 , 94 S. Ct . 157 , 1541 , 39 L . Ed .2d 797 ( 1974 ) , the Court said that zoning could be used to 7 create and promote living areas that protect "family values [ and] youth values . " 8 Young has answered the equal protection argument 9 advanced by Plaintiffs here . The Young opinion ( although 10 adopted by only four Justices ) was that Detroit could 11 legitimately use the content of the materials , i . e . , sexually 12 explicit films , as a basis for placing them in a different 13 category from other motion pictures in an attempt to preserve 14 the "quality of urban life" and in the furtherance of the 15 "city' s interest in the present and future character of its 16 neighborhoods . " Such classification was not violative of 17 respondent ' s equal protection rights . The City of Renton 18 also is concerned with the "quality of urban life" and the 19 "present and future character of its neighborhoods . " This 20 concern is the basis of the City Council ' s consideration , and 21 which form the foundation for the narrowly drawn regulations 22 of the Ordinance . 23 Therefore , the four-fold test established under United 24 States v . O ' Brien , 391 U .S. 367 , 377 , 88 S . Ct . 1673 , 1679 , 20 25 L .Ed . 2d . 672 ( 1968 ) is met . First of all , the governmental 26 regulation is clearly within the constitutional power of the 27 government . Euclid v . Ambler Realty Company , supra . 28 Secondly , the governmental regulation complained of furthers 29 an important or substantial governmental interest in 30 31 attempting to preserve the "quality of urban life" and in furtherance of the "city ' s interest in the present and future 32 DEFENDANTS MEMORANDUM IN OPPOSITION TO WARREN & KELLOGG, P.S. ATTMOTION FOR TEMPORARY RESTRAINING ORDER SECOND ST., P. 100 40.DECOND ST., r.O.BOX Sts AND PRELIMINARY INJUNCTION RENTON, WASHINGTON 98057 PAGE 14 255-8678 1 character of its neighborhoods . " Thirdly , the assertion of 2 the governmental interest is unrelated to the surpression of 3 free expression . There is no feature of the Renton Ordinance 4 which acts as a surpression of free expression of protected 5 activities . Lastly, the incidental restriction on First 6 Amendment freedoms is no greater than is essential to the 7 furtherance of the governmental interest . As shown by the 8 evidence before the Court‘, the regulations adopted by the 9 City Council are carefully and narrowly drawn with a view 10 toward the preservation of the "quality of urban life" and in 11 the furtherance of the "City ' s interest in the present and 12 future character of its neighborhoods" . As in Young , the 13 Ordinance does not reduce the number or accessibility of 14 theaters presenting particular films , and therefore stifles 15 no expression . There is no evidence before the Court to 16 sustain the inference that the regulation was drawn in an 17 effort to protect citizens against the content of adult 18 movies . In short , the interests advanced by the City Council 19 are rationally related to a valid and proper governmental 20 purpose and have no more than an incidental effect upon the 21 freedom of expression claimed by the Plaintiffs . 22 F. THE ZONING ORDINANCE IS NOT A TAKING OF PROPERTY 23 WITHOUT DUE PROCESS OF LAW. 24 1 . Plaintiffs Have Caused Their Own Damage : To 25 the extent that the plaintiffs have , or will sustain damage 26 for which they claim that the City of Renton is denying their 27 property rights , that damage has been , or will be caused 28 solely by the Plaintiffs ' actions of choosing to flagrantly 29 violate the terms of the perfectly valid Ordinance , or to 30 bind themselves in a contractual relationship prior to a 31 valid determination of the constitutionality of the 32 Ordinance . Being deemed to be aware of the existence of the DEFENDANTS MEMORANDUM IN OPPOSITIONTO WARREN & KELLOGG. P.S. MOTION FOR TEMPORARY RESTRAINING ORDER 1O°30.SECOND ATTORNEY/AT LAW AND PRELIMINARY INJUNCTION ST.,P.O.SOX a2! RENTON, WASHINGTON 98087 PAGE 15 235.8676 1 Ordinance , Plaintiffs cannot now claim to have been deprived 2 of a personal liberty or property right without due process 3 of law where by their own actions they have bound themselves 4 to close a transaction which they knew, or should have known , 5 was subject to a reasonable and constitutional regulation . 6 2. Economic Loss Due To Zoning : As noted above , 7 per Justice Powell ' s concurring opinion in Young , the 8 constraints of the ordinance which may create economic loss 9 for some , do not create a burden any greater than that 10 imposed by more common ordinances that restrict movie 11 theaters generally to commercial zones along with other types 12 of businesses presenting similar land use problems . 13 Therefore , plaintiffs claim to have suffered deprivation of 14 liberty and/or property interests in the exercise of First 15 Amendment rights must fail . Once again , the City of Renton ' s 16 reasonable and rational interest in the preservation of the 17 "quality of urban life" and in the furtherance of the "city' s 18 interest in the present and future character of its 19 neighborhoods" is a substantial and compelling reason to 20 justify the slight effect upon the exercise by plaintiffs of 21 their First Amendment freedoms . 22 III . CONCLUSION 23 The Plaintiffs , having shown no irreparable injury to 24 themselves in the event that provisional injunctive relief is 25 not granted , are not entitled to the entry of a temporary 26 restraining order under the facts before the Court . The 27 Ordinance complained of closely patterns the constitutionally 28 tested pattern of land use regulations set forth in Young. 29 The Ordinance is neither vague as to Plaintiffs nor broad in 30 its application , and does not constitute a taking of 31 32 WARREN & KELLOGG, P.S. DEFENDANTS MEMORANDUM IN OPPOSITION TO ATTORNEYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER IGO SO.SECOND ST., P.O.BOX SlS RENTON, WASHINGTON 98057 AND PRELIMINARY INJUNCTION 255-8878 PAGE 16 1 Plaintiffs ' property or liberty without due process of law. 2 Therefore , the Court should deny the motion of Plaintiffs for 3 a temporary restraining order . 4 5 Respectfully submitted , 6 7 Daniel ellogg 8 Assistant City Attorn# for City of Renton 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 WARREN & KELLOGG. P.S. DEFENDANTS MEMORANDUM IN OPPOSITION TO ATTORNEYS AT LAW MOTION FOR TEMPORARY RESTRAINING ORDER +00 SO.SECOND ST.,P.O.BOX SEG AND PRELIMINARY INJUNCTION RINTON, 2553-8878N 98057 8878 PAGE 17 • CITY OF RENTON , WASHINGTON ORDINANCE NO . 3526 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON , RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF REIiTON , WASHINGTON , DO ORDAIN AS FOLLOWS': SECTION I : Existing Section 4- 702 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or characteri by an emphasis on matter depicting , describing or relating to "specific. sexual activities" or "specified anatomical areas" as hereafter defined for observation by patrons therein.. 2 . "Sp_ecified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation , sexual intercourse or sodomy ; . (c) Fondling or other erotic touching of human genitals pubic region , buttock or female breast . 3 . "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region , buttock, and female breast below a point immediately above the top of the areola ; and (b) Human male genitals in a discernible turgid state , even if completely and opaquely covered. -1- ♦ 1 ' ti SECTION II : There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any residential zone (SR- 1 , SR-2 , R-1 , S-1 , R-2 , R-3 , R-4 or T) or any single family or multiple family residential use . 2 . One (1) mile of any public or private school 3 . One thousand (1000 ' ) feet of any church or other religious facility or institution 4. One thousand (1000 ' ) feet of any public park or P-1 zone . B. The distances provided in this section shall be measured by following a straight line , without regard to intervening buildings , from the nearest point of the property parcel upon which the proposed use is to be located , to the nearest point of the parcel of property or the land use district boundary line from which the proposed land . use is to be separated. SECTION III : This Ordinance shall be effective upon its passage „ approval and thirty days after its publication . PASSED BY THE CITY COUNCIL this 13th day of April , 1981 Delores A. Head , City Clerk APPROVED BY THE MAYOR this 13th day of April , 1981 . B J ..S oan Approved as to form: Barbara Y . Shinpoch , Mayor awrence J. rren , City Attorney Date of Publication : May 15, 1981 ,1D7 � 1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 6 PLAYTIME THEATRES, INC . , a ) 7 Washington corporation, and ) KUKIO BAY PROPERTIES, INC . , ) NO . C82-59M 8 a Washington corporation, ) ) 9 Plaintiffs , ) AFFIDAVIT OF GARY F . KOHLWES , ) SUPERINTENDENT OF RENTON 10 vs ) SCHOOL DISTRICT AND SECRETARY ) OF RENTON SCHOOL BOARD 11 THE CITY OF RENTON, et al, ) ) 12 Defendants . ) ) 13 STATE OF WASHINGTON ) 14 ) ss COUNTY OF KING ) 15 GARY F . KOHLWES, being first duly sworn on oath, deposes 16 and states : 17 I am the Superintendent of the Renton School District 18 and Secretary of the Renton School Board. 19 The position of Renton School District No . 403 was 20 presented at the public meeting before the Planning and 21 Development Committee of the Renton City Council on March 5 , 22 1981, and remains the same to this date. The School District 23 strongly supports the regulation as adopted by the City Council 24 of the City of Renton to prohibit the location of an "adult 25 motion picture theater" within a radius of one mile surrounding 26 a public school.. 27 The regulations of the School District covering student 28 transportation varies by grade level . Students in kindergarten 29 through sixth grade are transported by bus if they reside one 30 mile or more from their school . Students in grades 7 and 8 31 are transported by bus if they reside more than 1 . 5 miles from 32 AFFIDAVIT OF GARY F. KOHLWES WARREN & KELLOGG, P.S. P. 1 f00 SO.ATTORNEYS AT LAW SECOND ST..P.O.SOX Ste RENTON. WASHINGTON 98057 255-8678 1 their school . Students in grades 9 through 12 are transported 2 if they reside more than two miles from their school . The 3 intention of the School Board in imposing the one mile 4 location on "adult motion picture theaters" was to prevent 5 negative impact upon elementary school children walking to 6 and from school . This position was reaffirmed by the Renton 7 School Board at its regularly scheduled me 'rig on January 21 , : 1982 . . h wes 10 y p r lQVcia�/� 11 SUBSCRIBED AND SWORN to before me 21 p(a 1982 . 12 13 _ 14 N tary Public - in and r the State of Washington, residi .g at Renton 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 AFFIDAVIT OF GARY F. KOHLWES P. 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST., P.O.BOX 626 RENTON, WASHINGTON 98057 255-8878 , • 0 OF R4, Ao OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON *-, u v `/ ` A POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 Z 0 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9,0 co' DAVID M. DEAN, ASSISTANT CITY ATTORNEY o9pZE�O�P February 8 , l9$2 MARK E. BARBER, ASSISTANT CITY ATTORNEY 4TEp SE TO: Barbara Y. Shinpoch, Mayor B' ie, Council Secretary el Mead, City Clerk Dave Clemens , Policy Development Capt . Bourasa, Police Dept . FROM: Daniel Kellogg, Assistant City Attorney RE : Playtime Theatres , Inc. vs City of Renton We enclose to each of you the Request for Production of Documents in the Playtime Theatres litigation. This request is extremely broad and we may have to file objections to delivery of some of the material which is requested. However , to expedite the consideration of the requested • material, we would request that each of you review your files regarding the adoption of Ordinance No. 3526 (the zoning ordinance relating to adult motion picture theaters) and assemble all of the information which is within your possession relating to this subject matter. We would ask that Billie review this matter with each of the council members and assemble any notes or files which they may have in this regard. We are asking that this material be brought to a meeting on Wednesday, February 17 , 1982 at 1 :30 P .M. in the 6th Floor Conference Room. At that time we will rough draft answers to the Request for Productions and assemble copies of the documents to be presented. If it is inconvenient for your -Department to amass this information prior to that date, please let me know at once so that we can make suitable arrangements otherwise. If you have any questions , please call me. Thank you for your assistance in this matter. Daniel Kellogg DK:nd Encl. cc: Council Members • • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES , INC . , a ) 10 Washington corporation, and KUKIO ) BAY PROPERTIES , INC. , a Washington) 11 corporation , ) NO. C82-0059M ) 12 Plaintiffs , ) REQUEST FOR PRODUCTION vs . ) OF DOCUMENTS FOR 13 ) INSPECTION AND COPYING THE CITY OF RENTON, et al . , ) 14 ) Defendants . ) 15 TO: The City of Renton and all other defendants ; 'and 16 TO: Larry Warren , attorney for the City of Renton . 17 Pursuant to Rule 34 of the Civil Rules of the Superior 18 19 Court of the State of Washington , the plaintiffs request that defendants permit the plaintiffs or their agents , and/or attorneys 20 21 to inspect a copy of the documents hereinafter described . 22 "Document" as used herein means any memorandum, report , 23 study, contract , agreement , chart , graph ,. index, data sheet , data 24 processing card or tape , note , entry, telegrams , letter , advertise- 25 went , brochure , circular , tape , record , bulletin , paper , book, 26 pamphlet , account , photograph and any other written , typewritten , 27 handwritten or other graphic matter , any electronic or other 28 recording of any kind or nature , any mechanical or electronic sound 29 recordings or transcripts thereof, however produced or reproduced , 30 and all copies or facsimiles of documents by whatever means made . 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burris & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • • • • . 1 The aforesaid production for inspection and copying should 2 be made at the offices of Hubbard , Burns & Meyer , 10604 N.E. 38th 3 Place , Suite 105 , Kirkland , Washington , within twenty (20) days 4 after service of this request . Inspection and copying will be 5 conducted by the undersigned attorneys or their agents and will 6 continue from time to time and from day to day until completed . 7 This request for production shall be deemed to be continu- 8 ing in nature , calling for prompt production by defendants of all 9 documents which come into their actual or constructive possession , 10 trust , care or control at any time in the future , as well as all 11 documents now in their actual or constructive possession , trust , 12 care or control . The specificity of any request shall not he 13 construed as reducing the scope of any more generalized requests . 14 Documents responsive to the following requests contain 15 information relevant to matters involved in this action and are 16 reasonably calculated to lead to discovery of evidence relevant to 17 such matters . If you withhold from producing any documents other- 18 wise requested herein under a claim of privilege , please : (1) 19 identify each such document with sufficient particularity as to 20 author(s) addressees) or recipient(s) , the contents to allow 21 plaintiffs to bring the matter before the Court ; (2) state the 22 nature of the privilege(s) asserted; and (3) state in detail the 23 factual basis for the claim of privilege. 24 DOCUMENTS TO BE PRODUCED 25 Plaintiffs request that you produce and make available for 26 inspection, separately, in response to each numbered paragraph , all 27 documents which contain, in whole or in part , which refer to , in 28 whole or in part , or which reflect , in whole or in part , the 29 following : 30 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns &Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 S I 1 1 . All video tape recordings , magnetic sound recordings 2 and transcribed transcripts of the Planning Si Development Committee 3 of the Renton City Council relative to consideration of Ordinance 4 No. 3526. 5 ANSWER: 6 7 2 . All video tape recordings , magnetic sound recordings 8 and transcribed transcripts of City Council meetings of the City of 9 Renton relative to consideration of Ordinance No . 3526 . 10 ANSWER: 11 12 3 . All studies done by the Planning Department , Planning 13 Staff, or used or considered by the Planning Department or Staff, 14 in the preparation or formulation of Ordinance No. 3526 , or any 15 report relative thereto to the Planning Commission and/or the City 16 Council . 17 ANSWER: 18 19 4. All information, studies , or other documents in the possession of the City of Renton, its agents , servants or 21 attorneys , relative to the effect of adult businesses on property 22 values in neighborhoods in the City of Renton . 23 ANSWER: 24 25 5 . All reports , letters , studies or other forms of 26 communication of the City of Renton Police Department or any other 27 law enforcement agency relative to the crime associated with the 28 location of adult businesses in general , and in the City of Renton , 29 in particular. ANSWER: 31 Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 2 6 . All crime reports generated by the City of Renton 3 Police Department in the past five years relative to any and all 4 crimes associated with adult businesses , together with any and all 5 crime reports relating to prostitution and assault within the City 6 of Renton. 7 ANSWER: 8 9 7 . All studies , reports or other evidence of discussions 10 of any department of the City of Renton in the past five years 11 relative to the control of, proliferation of, or effect of, adult 12 theatres or adult bookstores in or on residential neighborhoods . 13 / ANSWER: 14 y. 1w 15 ` (g,u,/l 8 . All studies for long range improvements in the 16 neighborhoods where the Roxy Theatre and Renton Theatre are 17 located , together with evidence of any development funds actually 18 spent in those neighborhoods in the past five years . 19 ANSWER: 20 21 9 . All correspondence , memos , or other evidence of 22 communications received by the City of Renton or any of the 23 defendants or their agents or servants from the public relative to 24 Ordinance No . 3526 and all replies thereto . 25 ANSWER: 26 27 10. All interdepartment memorandums , correspondence or 28 other communications between agents , servants , employees and/or 29 elected or appointed officials of the City of Renton relative to 30 Ordinance No. 3526 . 31 Plaintiffs ' Request for ATfORNEYSATLAW Production of Documents Hubbard, Burns & Meyer Page 4 1 MIN t%%I( NAt %t t t i)KIN )N 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 S • • 1 ANSWER: 2 3 11 . Any documents in the possession of any of the 4 defendants or their agents or servants which support or in any way 5 bear upon the legislative determination that an adult entertainment 6 use would have a severe adverse impact upon surrounding businesses 7 and residences . 8 ANSWER: 9 10 11 DATED this day of February, 1982 . 12 HUBBARD, BURNS & MEYER 13 14 BYd4e„;,M7 �ii Jack R. Burns 15 Attorney for Plaintiffs 16 STATE OF WASHINGTON ) ) ss . 17 COUNTY OF KING ) 18 , being first duly sworn on oath deposes and says : That I am the 19 in the above entitled matter , that I have read the foregoing requests for production of documents and answers thereto , know the 20 contents thereof and believe the same to be true . 21 22 SUBSCRIBED AND SWORN to before me this day of 23 1982. 24 25 Notary Public in and for the State of Washington residing at 26 27 28 29 30 31 ATTORNEYS AT LAW Plaintiffs ' Request for Hubbard, Bugs & Meyer Production of Documents A PROFESSIONAL SERVICE CORPORATION Page 5 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 OW.9 \ i r YW UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON PHILIP K. SWEIGERT 304 U.S. COURTHOUSE UNITED STATES MAGISTRATE November 5 , -1982 SEATTLE. WASH. 98104 (206) 442-1396 • Jack R. Burns . 10940 N.E. 33d Place, Suite 107 Bellevue, WA 98004 .� Tom---- " I+9 i P I Mark E. Barber ` 100 S. Second Street ✓ J NOV 5 1 P. 0. Box 626982 I Renton, WA 98057 j CITY .4--: 'a):N B ON IAYOR'S OFFICE Gentlemen: Re: Playtime v. Renton Case Nos. C82-59M & C82-263M Attached are copies of my Report and Recommendation and proposed form of Order in the above-captioned case. The originals are being filed with the Clerk. Any objec- tions to, or memoranda in support of the recommendation should be filed and served within ten days with copies to the Clerk for forwarding to the District Judge and to my office. You should also file and serve a Notice of Motion placing those objections on the Judge' s calendar for the third Friday following filing of those objections. If no timely objections are filed, the matter will be ready for a ruling by the Judge not later than two weeks from the date of this letter or November 19 , 1982 . Thank you for your cooperation. Yours very truly, A . Philip K. Sweige United States Ma i trate Attachments PKS/vlk cc: Colleen Garrigus File Nos. C82-59M & C82-263M J ' 1S 2 3 4 5 G 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 PLAYTIME THEATRES , INC. , et al . , ) 10 Plaintiffs , ) 11 v. ) CASE NO. C82-59M . 12 ' CITY OF RENTON, et al. , ) 13 Defendants. ) ) REPORT AND RECOMMENDATION 14 ) CITY OF RENTON, et al. , ) 15 ) Plaintiffs , ) 16 ) v. ) CASE NO. C82-263M 17 ) PLAYTIME THEATRES , INC. , et al. , ) 18 ) Defendants. ) 19 II ) 20 INTRODUCTION AND SUMMARY CONCLUSION 21 On February 23 , 1982 , the Court, approving and adopting a 22 Report and Recommendation filed February 3 , 1982 (Dkt. #22) , entered an order denying plaintiffs ' motion for temporary re- 23 straining order (Dkt. #39) . Three motions are presently befor= 24 25 the Court : First, plaintiffs ' motion for preliminary injunc- 26 tion, second, defendants ' renewed motion to dismiss , and, thir. , defendants ' motion for summary judgment. At a hearing conduct 27 ed on June 23, 1982 , the undersigned heard oral testimony, 28 received documentary evidence, and heard the arguments of 29 counsel with respect to all three motions. Based thereon and 30 upon the affidavits and the balance of the record before me, 31 and for the reasons set forth herein in some detail, I conclud 32 REPORT AND RECOMMENDATION - 1 FPI-SST-10.8.78 125\1-1235 (that plaintiffs have established both a clear likelihood of 2 success on the merits and irreparable injury. I recommend that 3 the Court enjoin enforcement of Renton' s zoning ordinance deal- 4 ing with adult theatres . I also, of course, recommend denial 5 of defendants ' dismissal and summary judgment motions. 6 THE RECORD BEFORE THE COURT 7 (A) The Ordinances . 8 In April of 1981, the City of Renton enacted Ordinance 9 No. 3526 providing that adult motion picture theatres as de- o 10 'fined therein were prohibited: 11 (1) Within or within 1, 000 feet of any residential 12 zone or single family or multiple family use; 13 (2) Within one mile of any public or private school; 14 (3) Within 1 ,000 feet of any church or other reli- 15 gious facility or institution; and, 16 ` (4) Within 1 ,000 feet of any public park or P-I zone . 1 1 Early in 1982 , plaintiffs acquired two existing theatre 18 buildings in the City of Renton. It was their intention to ( 19 :show feature length sexually explicit adult films in one of 1 20 ;them. The theatre buildings , however, were located in an area 21 proscribed by Ordinance No. 3526 , prompting plaintiffs to com- 22 mence the present action seeking damages and an injunction prohibiting enforcement of the ordinance on due process , First 23 'Amendment, and equal protection grounds . Their principle con- 24 tentions are that the City of Renton failed to factually suppo t 25 26 a sufficient governmental interest justifying intrusion upon protected speech and that the ordinance was not a mere loca- 27 tional restriction but a virtual prohibition of adult theatres 28 in the City of Renton. 29 While the case was pending, more specifically in May, 198 • , 30 defendant City of Renton enacted Ordinance No. 3629 , which 31 amended Ordinance No. 3526 . The principle changes were : 32 REPORT AND RECOMMENDATION - 2 F'1'1-SST-103.7h IZSM-1215 1 (1) The amending ordinance contained an elaborate 2 statement of the reasons for enacting both Ordinance No. 3526 and Ordinance No. 3629 ; 4 (2) A definition of the word "used" was added; 5 (3) Violation of the use provisions of the ordinance 6 was declared to be a nuisance per se to be abated civilly 7 and not by criminal enforcement; 8 (4) The required distance of an adult theatre from a 9 school was reduced from one mile to 1,000 feet; and, 10 (5) A severability clause was added. 11 The amending ordinance, No. 3629 , also contained an emer- 12 gency clause and was to be effective as of the date of its 13 passage and approval by the mayor, May 3, 1982 . 14 On June 14 , 1982 , defendants passed yet a third ordinance, 15 No. 3637 , which was identical to Ordinance No. 3629 in all 16 respects except that the emergency clause was deleted and the 17 iordinance was to become effective thirty days following its 18 publication. 19 While plaintiffs argue that the only ordinance before the 20 Court is No. 3526 , they are clearly incorrect. Their request 21 for injunctive relief obligates the Court to consider any and all changes in the applicable zoning scheme to the date of its 22 ruling. 23 (B) Events Leading to Passage of the Ordinances. 24 25 The City of Renton presently has no theatres which exhibi sexually explicit adult films. It appears that in May of 1980 , 26 at the suggestion of a City of Renton hearing examiner, the 27 mayor suggested to the City Council that they consider the 28 advisability of passing zoning legislation dealing with adult 29 entertainment uses , specifically "adult theatre [s] , bookstore [ ] , 30 ifilm and/or novelty shop [s] " prior to the time any such busi- 31 nesses might seek to locate in the city. The mayor' s memorand 4 32 REPORT AND RECOMMENDATION - 3 FI'1-SST-10 3.78 125M•-1233 1 'suggested that some cities had experienced difficulties in ,, ,I"re-doing" their zoning ordinances once such uses were esta- I 3 iblished in the community. a On March 5 , 1981, the Planning and Development Committee of the Council held a meeting for the purpose of taking public 6 testimony on the subject. While there is no record of that meeting, Mr. Clemens , then the City' s acting Planning Director 8 who was present at the meeting, testified that the Superinten- 9 ,dent of Schools , and the President of the Renton Chamber of i 10 jiCommerce spoke to concerns about adverse affects which adult 11 entertainment uses would have upon the economic health of 12 Renton' s businesses and upon children going to and from school . 13 He also testified that other citizens spoke generally about the 14 adverse affects of such uses. Mr. Clemens further testified 15 "that he and his department reviewed the decisions of the Wash- 16 'ington State Supreme Court in Northend Cinemas v. Seattle, 90 17 IWn. 2d, 709 , and of the United States Supreme Court in Young v. 18 ',American Mini Theatres , 427 U.S. 50 (1976) , and presented the �Iinformation from their review to the Planning and Development 19 Committee. He indicated ; - -- 20 generally that review of those cases !indicated that adult entertainment uses tend to decrease pro- 21 perty values and increase crime. 22 On April 6 , 1981, the Planning and Development Committee 23 of the Council recommended that an appropriate zoning ordinance 24 be written to reflect the following conditions : 25 " (a) No adult motion picture theatre will be 26 allowed in an area used or zoned residential or in any P-I public use area. 27 " (b) A suitable buffer strip of 1,000 feet 28 from any residential or P-I area also be a banned area; 29 " (c) The area enclosed in a one mile radius 30 of any school (this is the minimum student walking distance) would also be a banned area. " 31 Ordinance No. 3526 was the result. 32 REPORT AND RECOMMENDATION - 4 FI'I-SST-10.178 125M-1235 1 1 (C) The Effect of the Ordinance. 2 While the record would indicate that there are some 200 3 acres of property within the city limits of Renton where 4 an adult theatre might conceivably locate, the testimony and 5 affidavits show that, with but one exception, none of that pro- . 6 perty would be suitable for the location of a theatre. The 7 area is largely undeveloped and what development there is is 8 entirely unsuitable for retail purposes in general and for 9 theatre purposes in particular. The developed areas include : 10 (1) A Metro sewage disposal site and treatment plant; 11 (2) Longacres Racetrack and environs; 12 (3) A business park containing buildings suitable 13 only for industrial use; 14 (4) Warehouse and manufacturing facilities; 15 (5) A Mobile Oil tank farm; and, 16 (6) A fully developed shopping center . 17 The entire area potentially available for the location of 18 an adult theatre is far distant from the downtown business 19 idistr- i.ct, not well lit during night time hours , and also 20 ! generally devoid of pedestrian and vehicular traffic during 21 such hours . 22 The two sites which are potentially suitable are fully developed and occupied by fast food restaurants. 23 DISCUSSION 24 As indicated in my prior Report and Recommendation, the 25 26 party requesting injunctive relief must clearly show either: 27 (1) probable success on the merits and possible irreparable injury, or (2) sufficient serious questions as to the merits 28 to make them a fair ground for litigation and a balance of 29 hardship tipping decidely in favor of the party seeking relief, 30 Los Angeles Memorial Coliseum Commission v. N.F.L. , 634 F. 2d 31 1197 (9th Cir. 1980) . I conclude that plaintiffs meet the , 32 foregoing test. FPI-SST-10.3-78 I25MI-1235 REPORT AND RECOMMENDATION - 5 1 (1) Probability of Success on the Merits. 9 A city' s authority to zone is a well recognized aspect of 3 the police power. But when a zoning ordinance infringes upon 4 (speech protected by the First Amendment, it must be narrowly 5 drawn to further a substantial government interest. Schad v. 6 Borough of Mt. Ephraim, 452 U.S. 61 (1981) ; Kuzinich v. County 7 of Santa Clara, F. 2d , No. 81-4460 Ninth Circuit slip 8 op. October 12 , 1982 . The City of Renton' s zoning ordinance 9 relating to adult theatres plainly implicates First Amendment 10 rights . It is not limited to motion picture theatres catering 11 to those with an appetite for obscene films falling outside the 12 protections of the First Amendment, Miller v. California, 413 13 U.S. 15 (1973) . Rather, patterned upon the ordinance approved 14 in Young v. American Mini Theatres , 427 U.S. 50 (1976) , it re- 15 gulates sexually explicit but nonobscene films as well. 16 ii Defendant City of Renton contends, however, that no First 17 Amendment rights are involved because the ordinance only regu- 18 lates the time, place, and manner of the operation of adult 19 theatres . It relies on American Mini Theatres, supra. However, 20 I believe the ordinance in American Mini Theatres is clearly 21 \ distinguishable . The ordinance in the instant case, for all 22 practical purposes , excludes adult theatres from the City of Renton and therefore greatly restricts access to lawful speech. 23 � 24 The ordinance approved in American Mini Theatres had no such effect. 25 • 26 Defendants contend that the City has provided an area 2 with4n which adult theatres may locate. However, while in 7 28 theory such area is available, in fact, the area is entirely unsuited to movie theatre use. Restricting adult theatres to 24 the most unattractive, inaccessable), and inconvenient areas of 30 the city has the effect of suppressing or greatly restricting 31 access to lawful speech. American Mini Theatres , supra, 427 32 REPORT AND RECOMMENDATION - 6 FPI-SST-10 3 78 125 N1-1235 1 U.S . at 71 n. 35. See Basiardanes v. City of Galveston, 682 F. j 2 2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson, 3 667 F. 2d 659 •(8th Cir. 1981) ; Keego Harbor Co. v. City of .1 IKeego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City 5 of Minneapolis , 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple 6 !Onion , Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) ; 7 Bayside Enterprises , Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. 8 1978) ; E & B Enterprises v. City of University Park, 449 F. 9 .Supp. 695 (N.D. Tex. 1977) ; cf. Deerfield Medical Center v. 10 City of Deerfield Beach, 661 F. 2d 328 (5th Cir. 1981) . 11 Because the Renton ordinance drastically impairs the 12 iavailability in Renton of films protected for adult viewing by 13 ithe First Amendment, it must be reviewed under the stringent 14 standards of Schad, supra. Schad directs the court to examine 15 Ithe strength and legitimacy of the governmental interest behind 16 ! the ordinance and the precision with which it is drawn. Unless 17 the governmental interest is significant and is advanced with- _ I 18 !lout undue restraint on speech, the ordinance is invalid. Schad, 19 11452 U.S. at 70 . 20 The City of Renton has asserted that it has a substantial lgovernmental interest in zoning restrictions which will prevent 21 deterioration of its neighborhoods and its downtown areas. But 22 it is not sufficient to assert such interest. The City must 23 establish a factual basis for its asserted reasons and that it 24 considered those facts in passing the ordinance. Those reasons 25 must be unrelated to the suppression of free expression. 26 United States v. O'Brien, 391 U.S . 367 (1968) ; Kuzinich v. 27 County of Santa Clara, supra. 28 Many of the conclusory statements of the reasons for 29 enacting the Renton ordinances reflect simple distaste for 30 adult theatres because of the content of the films shown. 31 Those statements directed at legitimate fears such as preven- 32 REPORT AND RECOMMENDATION - 7 %ST-114:1.7R 125M-12a5 • 1 !ltion of crime and deterioration of business and residential �I 9 neighborhoods are based principally upon the Planning Depart- ! #ents review of other court cases in which zoning legislation 4 ;regulating the location of adult businesses has been approved. 5 The City had little or no empirical evidence before it when the 6 initial ordinance was passed. More is required. Avalon Cinema 7 ,Corporation v. Thompson, supra; Keego Harbor Co. v. City of 8 IKeego Harbor, supra; Basiardanes v. City of Galveston, supra. 9 I conclude that the manner in which the ordinance was enacted, I . 10 its narrow focus on adult theatres to the exclusion of other 11 adult entertainment uses which would presumedly contribute to 12 the same concerns , and the fact that most of the findings set forth 13 in the amendatory ordinance reflect citizen distaste for adult \' theatres because of the film fare shown, suggestsimproper 14 an im ro er 15 (motive. 16 Even ass ming that the City has established a substantial 17 governmental interest, however, the ordinance will not pass 18 'constitutional muster. The ordinance must be narrowly drawn { 19 to serve that interest with only a minimum intrusion upon First 20 Amendment freedoms. Schad, supra. Here the intrusion upon 21 First Amendment expression is not minimal. Adult theatres are, 22 for all practical purposes , excluded from the City of Renton. The ordinance constitutes a prior restraint on speech and shoul. 23 1 jibe held to be unconstitutional. 24 { (2) Irreparable Injury. 25 26 Irreparable injury is clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected to civil 27 28 abatement proceedings. The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes 29 irreparable injury in the context of a suit for injunctive 30 relief. Elrod v. Burns , 427 U.S. 373 (1976) ; Deerfield Medical 31 Center v. City of Deerfield Beach, supra; Citizens for a Bette 32 Environment v. City of Park Ridge, 567 F. 2d 689 (7th Cir. 1975) . FPI-.0,1--IO1.78 1:5\,_123; REPORT AND RECOMMENDATION - 8 I recommend that the Court enjoin enforcement of City of 9 'Renton Ordinance No. 3637 pending disposition on the merits. 3 ;IA proposed form of Order accompanies this Report and Recommen- 4 }dation. 5 DATED. this 5th day of November, 1982. 6 7 (r Philip K. Sweigert 8 United States Magistrate 9 II ii 10 11 12 13 14 15 16 I' - - 17 18 19 20 • 21 22 23 24 25 26 27. 28 29 30 31 32 ( REPORT AND RECOMMENDATION - 9 1'I'I--SST-103 8 125\1-1235 1 • 3 ! 4 �I i 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON ( • 8 AT SEATTLE PLAYTIME THEATRES, INC. ,- et al. , ) 9 ) Plaintiffs, ) 10 ) v. ) CASE NO. C82-59M 11 ) CITY OF RENTON, et al. , ) 12 ) Defendants. ) ORDER DENYING DEFENDANTS ' 13 ) MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND 14 CITY OF RENTON, et al. , ) GRANTING PRELIMINARY INJUNCTION PENDENTE LITE 15 Plaintiffs, ) )IG v. ) CASE NO. C82-263M ) 17 1PLAYTIME THEATRES, INC. , et al. , ) 18 Defendants. ) ) 19 itThe Court, having considered plaintiffs ' motion for 20 preliminary injunction, defendants ' renewed motion to dismiss 21 land motion for summary judgment, the Report and Recommendation 22 !of United States Magistrate Philip K. Sweigert, and the balance 23 of the records and files herein, does hereby find and ORDER: 24 (1) Said Report and Recommendation is hereby approved 25 and adopted; 26 (2) Defendants ' motion for summary judgment and renewed 27 motion to dismiss and hereby DENIED; 28 (3) Defendant City of Renton, its officers, agents, 29 servants , employees, successors, attorneys, and all those in 30 active concert or participation with them, are enjoined from 31 enforcing City of Renton Ordinance No. 3637 against plaintiffs, 32 ORDER - 1 FPI-SST-10•3-78 125N1-1235 • 1 said preliminary injunction to remain in effect pending a 9 decision by this Court on the merits and until further order of :3 the Court; and, 4 (4) The Clerk of Court is to direct copies of this Order 5 ito all counsel of record and to Magistrate Sweigert. 6 DATED this day of , 1982 . 7 ► 8 CHIEF UNITED STATES DISTRICT JUDGE 9 10. 11 12 13 14 15 1G 17 18 19 20 21 22 23 24 25 26 27 • - 28 29 30 31 32 ORDER - 2 FPI-SST-I01.78 125N1-1235 Ix f 17 all./ 0" I OF R4,A ti16OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON U `/ f POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 Z • . LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 90 `O- DAVID M. DEAN, ASSISTANT CITY ATTORNEY 09gT fD SEPZ . P February 8, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY TO : Barbara Y. Shinpoch, Mayor Members of City Council FROM: Daniel Kellogg, Assistant City Attorney RE : Playtime Theatres vs City of Renton We enclose the report of Magistrate Sweigert which we received on Friday. As you will note, the recommendation is directed to Judge McGovern who will make a ruling on or after February 16 , 1982 . We do not anticipate filing any objection to the report of the Magistrate. If Mr. Forbes files an objection or memorandum, we will consider filing a response thereto if we deem it necessary. Please call me if you have any questions . Daniel Kellogg DK:nd Encl. cc : Dave Clemens 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 PLAYTIME THEATRES , INC. , a ) Washington corporation, and ) 10 KUKIO BAY PROPERTIES , INC. , ) a Washington corporation , ) 11 ) Plaintiffs , ) 12 ) CASE NO. C82-59M v. ) 13 ) REPORT AND RECOMMENDATION THE CITY OF RENTON, et al . , ) 14 ) Defendants . ) 15 ) 16 INTRODUCTION AND SUMMARY CONCLUSION 17 Plaintiffs , Playtime Theatres , Inc. , and Kukio Bay Properties , 18 Inc. , recently acquired two existing theatre buildings in the City 19 of Renton and wish to commence showing feature length sexually explicit adult films in one of them. The theatre buildings are 21 located in areas not zoned for such use . Plaintiffs filed the instant suit claiming that the Renton zoning ordinance in question is unconstitutional for a number of reasons . Because plaintiffs 24 wished to commence showing the adult films on Friday , January 29 , 25 1981, they sought a temporary restraining order prohibiting the 26 City of Renton from enforcing its ordinance. The matter was referred to me by Order of Reference dated January 22 , 1982 , and a hearing was held on January 29 , 1982 . Having heard the arguments of counsel and considering the affidavits and limited testimony and 30 documentary exhibits admitted at that hearing, I recommend that the 31 Court deny the request for a temporary restraining order for the 32 reasons hereinafter set forth. REPORT AND RECOMMENDATION - 1 1 DISCUSSION 2 In this Circuit, the party requesting injunctive relief must 3 clearly show either: (1) probable success on the merits and 4 possible irreparable injury, or (2) sufficiently serious questions 5 as to the merits to make them a fair ground for litigation and a 6 balance of hardship tipping decidedly in favor of the party seeking 7 relief. Los Angeles Memorial Coliseum Commission v. N.F.L. , 634 8 F. 2d 1197 (9th Cir. 1980) . Further, federal courts should proceed 9 with caution and restraint when considering a facial challenge to 10 the constitutionality of an ordinance. Erznoznik v. City of 11 Jacksonville, 422 U.S. 205 (1975) . Finally, the Court must also 12 bear in mind that a temporary restraining order is ordinarily for 13 the purpose of maintaining the last uncontested status quo between 14 the parties until full hearing of an application for preliminary 15 injunction can take place. 16 The ordinance in question provides that adult motion picture 17 theatres as defined therein are prohibited: 18 (1) Within or within 1000 feet of any residential zone or 19 single family or multiple family use; 20 (2) Within one mile of any public or private school; 21 (3) Within 1000 feet of any church or other religious 22 facility or institution; and, 23 (4) Within 1000 feet of any public park or P-I zone. 24 Plaintiffs ' complaint. challenges the constitutionality of the 25 ordinance on the following grounds: First, they claim that certain 26 definitional sections are so vague and overbroad as to deny them 27 due process. Second, they claim that confinement of adult theatres 28 to certain areas is an impermissible prior restraint on protected 29 First Amendment speech. Third, they argue the classification of 30 theatres based on the content of the films shown violates First 31 Amendment and equal protection guarantees. Plaintiffs did not 32 pursue their vagueness or overbreadth arguments at the hearing or in their brief but focused only on the First Amendment and equal protection claims. REPORT AND RECOMMENDATION - 2 1 Defendants contend that the ordinance is not facially invalid 2 for vagueness or overbreadth but is a reasonable regulation of the 3 place in which "adult motiontheatres"picture may be located 4 within Renton and has only an incidental effect upon exercise of 5 First Amendment rights. Defendants rely principally on Young v. 6 American Mini Theatres , Inc. , 427 U.S. 50 , 49 L.Ed. 2d 310 (1976) , 7 rehearing denied, 429 U.S. 873 (1976) (hereinafter referred to as 8 Young) . 9 In Young, the Supreme Court approved the creation and 10 definition of an adult theatre zoning use in the City of Detroit 11 which was nearly identical to the Renton zoning use at least in its 12 definitional provisions . The Court also approved regulation of 13 location of that use. The Court reasoned that since the ordinance 14 only controlled the location of adult businesses and did not 15 restrict the content of the speech disseminated therein, it was 16 merely a time, place, or manner restriction. Id. at 63, 71. The Court 17 held that the City had a strong governmental interest in protecting 18 the quality of its neighborhoods , Id. at 71, 72 , which justified 19 the zoning scheme which classified businesses on the content of 20 their material, and treated adult businesses (including theatres) 21 different from other businesses. 22 The Court indicated in Young, however, that the "situation 23 would have been quite different if the ordinance had the effect 24 of suppressing, or greatly restricting access to, lawful speech. " 25 Id. at 71 n. 35. Accordingly, the critical inquiry is the "effect" the ordinance ' s limitations have on the exercise of First Amendment 27 rights. 28 In their affidavits and through the limited testimony and 29 exhibits admitted at the hearing, plaintiffs have attempted to 30 distinguish the Renton ordinance from that approved in Young in tw. 31 respects : First, they contend that the City of Renton failed to 32 factually support its conclusion that adult movie theatres have REPORT AND RECOMMENDATION - 3 an adverse effect on residential neighborhoods including incidental 2 amenities close thereto such as parks , churchs , and schools - thus 3 the city established no important state interests justifying its 4 intrusion upon protected speech. Second, plaintiffs attempted to 5 show that rather than a mere locational restriction, the Renton 6 ordinance amounts to a virtual prohibition of adult theatres in 7 that city - that even though there may be property available , it is 8 not commercially feasible . I will address these contentions 9 separately. 10 (1) Basis for the City' s Ordinance. 11 The affidavit submitted by Mr. Clemens , the Policy Development 12 Director of the City of Renton, and his testimony at the hearing, 13 indicated that the ordinance in question was only adopted after a 14 period of study and following public hearings at which the City 15 Council heard testimony indicating that adult entertainment land 16 uses would have an adverse affect on property values within the 17 business and residential areas of the city. He also indicated that 18 he had reviewed a summary of the findings and concusions made when 19 Seattle enacted a similar ordinance - those findings noted the 20 deterioration of business and community neighborhoods where adult 21 entertainment uses are permitted. Those findings prompted Seattle 22 to enact an ordinance restricting adult entertainment uses to one 23 specific area of the city. Plaintiffs contend that the city heard 24 no expert testimony and that they cannot rely on the Seattle 25 experience. I disagree. There is no reason to require that Renton 26 receive expert testimony to show what has been shown to be 27 generally experienced elsewhere . See Genusa v. City of Peoria , 28 619 F. 2d 1203 (7th Cir. 1980) . 29 (2) Whether the Ordinance Suppresses or Greatly Restricts 30 Access to Adult Fare . 31 After reviewing the maps and affidavits , and hearing the 32 testimony of Mr. Clemens , I conclude that although some of the approximately 400 acres which the city asserts is available for the REPORT AND RECOMMENDATION - 4 1 location of adult entertainment uses is definitely not available , 2 and although much of it is not ideal, the record at this stage of 3 the proceeding would indicate that there are many adequate sites 4 available. Plaintiffs ' argument that such sites are not economi- 5 cally practicable is not relevant. The constraints of the ordinanc: 6 may create economic hardship or loss for those who engage in the 7 adult entertainment business, but that was also true in Young. See 8 Justice Powell ' s concurring opinion at 78 . The First Amendment 9 inquiry is not concerned with economic impact but only the effect 10 upon freedom of expression. All that is required is that those who 11 wish to exhibit sexually explicit films be given ample area to do 12 so, and that those who seek to view them be given access . The City 13 of Renton appears to have provided ample area. 14 CONCLUSION 15 Applying the standards applicable in this Circuit to a motion 16 for injunctive relief , I conclude that although there is some 17 possibility of per se irreparable injury because plaintiffs are 18 prevented from showing films arguably protected under the First 19 Amendment , plaintiffs have not clearly established a probability 20 that they will succeed on the merits . Rather, it appears that the 21 case is controlled by Young and that the ordinance only inciden- 22 tally affects protected speech or expression. 23 As to the alternate test, I conclude that although the 24 allegations in plaintiffs ' complaint are sufficiently serious to 25 be fair grounds for litigation, the balance of hardships does not 26 tip decidedly in plaintiffs ' favor. Although plaintiffs will not 27 be able to show the sexually explicit films they desire to show 28 unless and until this matter is concluded in their favor, they may 29 continue to exhibit other films. The hardship upon them is no more 30 severe than the general hardship imposed upon the one who desires 31 to use a particular piece of property in a manner incompatible with 32 its zoning. Weighed against this impact is the city ' s strong interest in assuring compliance with its zoning laws . REPORT AND RECOMMENDATION - 5 1 A proposed form of Order accompanies this Report and 2 Recommendation. 3 DATED this 3d day of February, 1982 . 4 5 gitf(/ ` 1 6 Philip K. S ger United States Ma i trate 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 REPORT AND RECOMMENDATION - 6 • 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 PLAYTIME THEATRES , INC. , a ) Washington corporation, and ) 10 KUKIO BAY PROPERTIES , INC. , ) a Washington corporation, ) 11 ) Plaintiffs , ) 12 ) CASE NO. C82-59M v. ) 13 ) ORDER THE CITY OF RENTON, et al . , ) 14 ) Defendants. ) 15 ) 16 The Court, having considered plaintiffs ' Motion for a Temporar . 17 Restraining Order, defendants response thereto, and the Report and 18 Recommendation of United States Magistrate Philip K. Sweigert, and 19 the balance of the records and files herein , does hereby find and 20 ORDER: 21 (1) Said Report and Recommendation is hereby approved and 22 adopted; 23 (2) Plaintiffs ' Motion for Temporary Restraining Order is 24 hereby DENIED; and, 25 (3) The Clerk is to direct copies of this Order to all 26 counsel of record and to Magistrate Sweigert. DATED this day of , 1982 . 28 29 30 CHIEF UNITED STATES DISTRICT JUDGE 31 32 1 • 2 II 4 ',t . FILED,IN THE UNITED STATES DISTRICT COURT 3 `� I } WESTERN DISTRICT OF WASHINGTON FEB 18 1983 5 BRUCE RIFKIN, Clerk 6 By............. ...... Deputy 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES , INC . , et al . , ) 10 ) Plaintiffs, ) 11 ) v. ) No. C82-59M 12 ) CITY OF RENTON, et al . , ) 13 • ) Defendants. ) 14 ) ORDER 15 CITY OF RENTON, et al . , ) 16 Plaintiffs, ) 17 v. ) No. C82-263M ) (REMANDED) 18 PLAYTIME THEATRES , INC . , et al . ) 19 Defendants. ) 20 21 INTRODUCTION 22 On January 11 , 1983 , the Court entered its order 23 approving and adopting the magistrate 's report and 24 recommendation and denying defendants ' motions to dismiss 25 and for summary judgment , and granting preliminary 26 injunction pendente lite. A separate order was entered 27 January 11 , 1983 approving and adopting the magistrate ' s 28 ORDER - 1 1 supplemental report and recommendation and granting the 2 motion to remand Cause No . C82-263M to King County Superior 3 Court . 4 On February 10, 1983, a hearing was had pursuant to the 5 parties ' January 31 , 1983 Stipulation and Order separating 6 damages claims from plaintiffs ' prayer for permanent 7 injunction and submitting the matter to the Court on the 8 evidence considered by Magistrate Sweigert . The Court has 9 considered the evidence that was before the Magistrate, has 10 considered the parties ' memoranda, affidavits and oral 11 arguments . Accordingly, the Court rules that abstention 12 would be improper and plaintiffs ' prayer for a permanent 13 injunction must be DENIED. 14 15 FEDERAL ABSTENTION ' 16 The City of Renton argues that the preliminary 17 injunction was improvidently granted , that the permanent 18 injunction must be denied , and that this Court must abstain 19 and dismiss this action for lack of jurisdiction . 20 Renton supplements its earlier argument and 21 authorities on this issue with Miofsky v . Superior Court 22 of State of California, et al . , in No. 80-4589, slip op . 23 ( 9th Cir . Jan. 3 , 1983) . Renton argues that Miofsky aids 24 the resolution of the abstention issue herein by refining 25 the meaning of the term "vital state interest " without 26 giving it such overbreadth to deprive the federal court of 27 28 ORDER - 2 1 all of its 42 U .S .C . § 1983 jurisdiction . Renton asserts 2 that the city 's interest in establishing zones and setting 3 set backs is a "vital state interest" of the sort that 4 requires the Court to abstain from acting in the case at bar 5 pending the outcome in State Court on the Complaint for 6 Declaratory Judgment . The Miofsky court distinguished the 7 cases cited for abstention: 8 In each of these cases , the state or an agent of 9 the state was a party to the proceeding deemed insulated from federal court intervention. In addition, each of these civil suits bore 10 similarities to criminal proceedings or otherwise 11 implicated state interests vital to the operation of state government . 12 13 Id. at 7. The context of the Miofsky suit was a 14 complaint that state court proceedings violated plaintiff 's 15 federally protected rights under Section 1983. 16 Miofsky does little to refine the term "vital state 17 interests" beyond reasoning that abstention is improper in a 18 Section 1983 civil rights action. The Court is unpersuaded 19 that federal abstention would be proper here . "The state 20 judicial proceeding in this case is purely civil in nature , 21 regardless of the importance of the state policies which the 22 city asserts. " Magistrate ' s Supplemental Report and 23 Recommendation at 5. Although zoning, which is the 24 underlying subject matter of the declaratory judgment ' s 25 suit in state court , may be an important function performed 26 by a city, this alone does not prevent a federal court from 27 scrutinizing the constitutionality of the city 's actions . 28 ORDER - 3 1 The Court concludes that the state court action is no bar to 2 continue jurisdiction over plaintiff ' s suit for injunctive 3 relief. 4 5 PERMANENT INJUNCTON 6 I . 7 In determining the propriety of a permanent injunction, 8 the Court must first find that there is a threatened 9 violation of a legal right which would produce irreparable 10 harm and for which any other remedy would be insufficient . 11 The hardship must tip in favor of the plaintiff. 12 Renton ' s Ordinance , really a series of three ordi- 13 nances : 3526 , 3629 , and 3637 , is an attempt to preclude the 14 operation of "adult motion picture theatres" in zones which 15 are more than 1 , 000 feet from certain other specified uses 16 or zones . "Adult motion picture theatres" refers to those 17 theatres exhibiting films characterized by an emphasis on 18 matter relating to "specified sexual activities" or "speci- 19 fied anatomical areas" as a "continuing course of con- 20 duct . . . in a manner which appeals to a prurient interest . " 21 The subject matter of the films is given a detailed defini - 22 tion, but the "continuing course of conduct" language is 23 not . The ordinance in its essential features is virtually 24 25 26 27 28 ORDER - 4 1 identical to the ordinances in Young v . American Mini 2 Theatres , 427 U.S . 50 ( 1976) and Northend Cinema , Inc . 3 v . City of Seattle , 90 Wash. 2d 709, 585 P .2d 1153 4 ( 1978) except that the word "used" in describing "adult 5 motion picture theatre" is defined with the "continuing 6 course of conduct" language . 7 A first amendment interest is affected. The ordinance 8 deals not with obscene material , but sexually explicit . 9 material . It is concerned with the exhibition of films 10 inside the theatre and not with "pandering, " "the business 11 of purveying textual or graphic matter openly advertised to 12 appeal to the erotic interest of their customers . " Pinkus 13 v . United States , 436 U.S . 293, 303 ( 1978) . 14 15 16 Since expression protected by the first amendment is 17 the subject of Renton 's ordinance , the next inquiry is 18 whether there is actual intrusion upon this first amendment 19 interest and if so, the nature of the intrusion. 20 There is some intrusion: in certain areas of Renton, 21 films described in the ordinance may not be shown as a 22 continuing course of conduct in a manner which appeals to a 23 prurient interest. This intrusion is not substantial under 24 the circumstances for several reasons . Renton 's 25 restrictions are slightly narrower than those in the cases 26 cited supra , because of the "continuing course of conduct" 27 28 ORDER - 5 1 language . No theatre had to be closed under Renton ' s 2 ordinance , for no theatres were operating or were 3 considering operating when it was enacted . There is no 4 content limitation on the creators of adult movies. The 520 5 acres of land in all stages of development available for 6 locating adult theatres (David R . Clemens Affidavit of 7 May 27 , 1982, unrebutted , and his June 23 , 1982 testimony at 8 36-41 ) belies there being substantial intrusion upon 9 plaintiffs ' first amendment right . The real question is 10 whether in spite of the acreage available to plaintiffs to 11 locate a theatre, the economic impact results in a substan- 12 tial , impermissible effect upon first amendment rights . 13 Young notes that "the inquiry for first amendment 14 purposes is not concerned with economic impact ; rather, it 15 looks only to the effect of this ordinance upon freedom of 16 expression. " 427 U.S . at 78 ( Powell, J . , concurring ) . 17 The effect of Renton 's ordinance is that plaintiffs or 18 others wishing to exhibit adult film fare and not having a 19 theatre already built and ready for occupancy , must consider 20 whether demand is such that construction of a theatre is 21 feasible . This impact is no different than that upon other 22 land users who must work with what land is available to them 23 in the city. With a large percentage of land within the 24 city available to plaintiffs, the financial feasibility of 20 the various locations is for them to analyze . To conclude 26 otherwise would be to place a burden on the city that 27 28 ORDER - 6 • 1 Constitutional analysis does not require . Moreover, the 2 message of no individual or group has been silenced. The 3 number of such establishments has not been reduced because 4 none existed and none were attempting to establish 5 themselves in Renton prior to the ordinance. The ordinance 6 merely specifies where adult theatres may not locate and in 7 doing so , stifles no expression. See, Young, 427 U.S . 8 at 81 , n.4 (Powell, J . , concurring) . 9 The Court concludes that there is not a substantial 10 intrusion upon first amendment interests . Plaintiffs are 11 not virtually excluded from Renton by being confined to the 12 "most unattractive , inaccessible , and inconvenient" areas . 13 But see Basiardanes v . City of Galveston, 682 F . 2d 1203, 14 1214 ( 5th Cir. 1983) Renton 's exhibits, affidavits, memo- 15 randa, and oral argument persuade the Court that acreage in 16 all stages of development from raw land to developed, 17 industrial, warehouse, office , and shopping space that is 18 criss-crossed by freeways, highways, and roads cannot be so 19 characterized. Significant cited cases to the contrary are 20 distinguishable : Schad v. . Borough of Mount Ephraim, 452 U.S . 21 61 ( 1981 ) (live entertainment including nude dancing was not 22 a permitted use , and concerns- such as trash, police protec- 23 tion, and medical facilities were not sufficient justifica- 24 tions for the exclusion) . Basiardanes (available sites much 25 less desirable than in Renton, and the zoning ordinance was 26 passed after the theatre was leased for showing adult 27 28 ORDER - 7 1 films ) ; Avalon Cinema Corporation v . Thompson, 667 F . 2d 659 2 ( 8th Cir. 1981 ) (zoning ordinance enacted after suggested 3 adult use ) ; Keego Harbor Co . v . of Keego Harbor , 657 F . 2d 94 4 ( 6th Cir. 1981 ) (no location within city that was not within 5 500 feet of a bar or other regulated use ) . Ample , acces- 6 sible real estate is available for the location of adult 7 theatres in Renton. 8 9 III . 10 The insubstantial intrusion upon first amendment 11 interests by Renton 's ordinance must be considered against 12 the governmental interest which led to its enactment . Under 13 the four-part test of United States v . O ' Brien, 391 U.S . 14 367, 377 ( 1968) , a governmental regulation is justified 15 despite incidental impact upon first amendment interests 16 1 . If it is within the constitutional power of the 17 government , 18 2 . If it furthers an important or substantial 19 governmental interest , 20 3 . If the governmental interest is unrelated to the 21 suppression of free expression , and 22 4 . If the governmental restriction is no greater than 23 necessary for the furtherance of that interest . 24 25 26 27 28 ORDER - 8 1 As in Young, the first two elements of the test are 2 met . The ordinance was within the City of Renton 's power to 3 enact . Nor is there any doubt that the interests sought to 4 be furthered by this ordinance are important and 5 substantial. 6 Without stable neighborhoods , both residential and 7 commercial , large sections of a modern city quickly can deteriorate into an urban jungle with 8 tragic consequences to social, environmental , and economic values . While I agree with respondents 9 that no aspect of the police power enjoys immunity from searching constitutional scrutiny , it also is 10 undeniable that zoning, when used to preserve the character of specific areas of a city , is perhaps 11 "the most essential function performed by local government , for it is one of the primary means by 12 which we protect that sometimes difficult to define concept of quality of life . " Village of 13 Belle Terre v. Boraas , 416 U.S . , at 13 (Marshall , J . , dissenting ) . 14 15 Young, 427 U .S . at 80 ( Powell, J . , concurring ) . The 16 critical inquiries are whether these interests are furthered 17 by the ordinance and whether the governmental interest is 18 unrelated to the suppression of free expression, element 19 three. 20 Renton 's interests , articulated in the ordinance, "in 21 protecting and preserving the quality of its neighborhoods , 22 commercial districts, and the quality of urban life through 23 effective land use planning, " are furthered by the 24 ordinance . The ordinance states in item 14, p. 3, Nos . 3629 25 and 3637 : 26 27 28 ORDER - 9 1 14 . Experience in numerous other cities , includ- 2 ing Seattle , Tacoma and Detroit , Michigan , has shown that location of adult entertainment land 3 uses degrade the quality of the areas of the City in which they are located and cause a blighting 4 effect upon the city. The skid row [sic ] effect , which is evident in certain parts of Seattle and 5 other cities, will have a significantly larger affect upon the City of Renton than other major 6 cities due to the relative sizes of the cities. 7 There was no evidence adduced to show that the secondary 8 effects of adult land uses would be different or lesser in • 9 Renton than in Seattle , Tacoma, or Detroit . Certainly, 10 Renton must justify its ordinance, but in so doing, 11 experiences of other cities and towns must constitute some 12 evidence to the legislative body considering courses of 13 action. Genusa v . City of Peoria, 619 F . 2d 1203, 1211 14 ( 7th Cir. 1980) . If the goal of preservation of the quality 15 of urban life is to have any meaning, a city need not await 16 deterioration in order to act . Id. The observed effects 17 in nearby cities provides persuasive circumstantial evidence 18 of the undesirable secondary effects Renton seeks to 19 preclude from within 1 , 000 feet of residential zones ,, 20 schools, religious facilities , and public parks. Although 21 the effects in other cities are starkly shown when adult 22 uses are congregated, Renton need not await such 23 congregation. Similarly, no negative inference can be drawn 24 from Renton 's choosing to address only one form of "adult" 25 • usage . It ' s effort would have been bolstered by considering 26 other "adult" uses in view of other cities ' experiences, but 27 28 ORDER - 10 • 1 inclusion of these other "adult " uses is not mandatory . The 2 city being aware that it is treading in a delicate area 3 between valued interests might understandably be loath to 4 • tackle the description , restriction, and rationale of more 5 than one such usage at a time . " [T ]he city must be allowed 6 a reasonable opportunity to experiment with solutions to 7 admittedly serious problems . " Young, 427 U .S . at 71 . 8 The governmental interest is unrelated to the suppres- s 9 sion of free expression, and the third element is satisfied . 10 Concern with preventing undesirable secondary effects is not 11 the kind of apprehension aimed at regulating the content of 12 an adult theatre 's exhibitions . Rather, it is a permissible 13 classification based on deleterious secondary effects. 14 Young, 427 U.S . at 70, 71 . 15 Renton solicited testimony through its City Council and 16 the Council 's Planning and Development Committee . It 17 summarized some ideas put forth at those public meetings in 18 its ordinance . Predictably , some citizens expressed 19 concerns reflecting their values which might be impermis- 20 sible bases for justification of restrictions affecting 21 first amendment interests . See, e . g. , Erznoznik v. City of 22 Jacksonville , 422 U.S . 205 ( 1975) (overbroad effort to 23 protect privacy interests of certain citizens from "offen- 24 sive" speech --nude movie fare visible from public street ) . 25 The inclusion of these statements should not negate the 26 legitimate, predominate concerns of the City Council nor 27 28 ORDER - 11 1 lessen the value of the circumstantial evidence of adult 2 land uses ' effects in nearby cities. Arguably , some of the 3 statements may be construed as characterizations of the 4 community 's quality of life that is presently sought to be 5 preserved. Citizens ' judgments as to a city ' s quality of 6 life is necessarily subjective . It is necessary to separate 7 these subjective characterizations of the city ' s quality of 8 life from the goals of protecting and preserving it and the • 9 evidence that the means will further the end. Renton could 10 have written its ordinance in such a way as to better 11 distinguish these aspects of the problem, but this is not a 12 material consideration. 13 Finally , part four of the 0! Brien test is satisfied 14 for the restriction is no greater than necessary to further 15 the governmental interest . The 1 ,000-foot aspect of the 16 restriction does not preclude adult theatres from locating 17 anywhere in the city as in Keego Harbor. Renton 's 18 ordinance is similar to others that have been upheld except 19 for the "continuing course of conduct" language discussed 20 earlier which has some narrowing effect . 21 Renton 's effort to preserve the quality of its urban 22 life by enacting an ordinance which regulates adult theatre 23 location is minimally intrusive of a particular category of 24 protected expression described in Young as being of "a 25 lesser magnitude than the interest in untrammeled political 26 debate. " 427 U .S . at 70 . Renton 's effort under the 27 28 ORDER - 12 1 circumstances is not unconstitutional under the first 2 amendment . Injunctive relief from enforcement of the 3 ordinance would be improper. NOW , THEREFORE , 4 For the foregoing reasons , the Court having 5 reconsidered its de novo review which led to the entry of 6 the preliminary injunction, the order granting preliminary 7 injunction must be vacated as improvidently granted , and 8 plaintiffs ' prayer for permanent injunction against 9 enforcement of the ordinance is DENIED . Accordingly , 10 the City of Renton ' s Motion to Dismiss for Lack of 11 Jurisdiction is DENIED , and its Motion for Summary Judgment 12 is GRANTED. 13 SO ORDERED . 14 DATED this �// day of February , 1983 . 15 16 WALTER Mc OVERN 17 Chief United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER - 13 n11 • 1 cc to : . HONORABLE WALTER. T. McGOVERN 2 3 • _FILED LODGED 4 Ecu\_) 5 6 F 1VA`NINGTON DST-t DEPUTY 7 c� 8 UNITED STATES DISTRICT COURT • WESTERN DISTRICT OF WASHINGTON 9 10 PLAYTIME THEATRES , INC. , . ) et al. , ) NO. C82-59M 11 ) Plaintiffs ) RESPONSE OF CITY OF RENTON, ET 12 ) AL, TO PLAYTIME THEATRES , INC . , vs ) ET AL, MEMORANDUM IN SUPPORT OF . 13 ) PLAINTIFFS' MOTION TO ALTER OR THE CITY OF RENTON, et al . , ) AMEND JUDGMENT DENYING PLAINTIFFS ' 14 ) PRAYER FOR A PERMANENT INJUNCTION Defendants ) AGAINST THE ENFORCEMENT OF RENTON 15 ) ORDINANCE NO. 3637 . 16 ) MARCH 18 , 1983 17 INTRODUCTION 18 City of Renton Ordinance No . 3526 , passed and adopted on 19 April 13 , 1981 , was modeled after the Detroit Zoning Ordinance which 20 had been approved by the United States Supreme Court five years 21 earlier in Young, et al v. American Mini Theaters, et al , 427 U. S . 50 22 (June 24, 1976) . 23 Renton Ordinance 3526 prohibited the location of an 24 "adult motion picture theater" within certain distances of specified 25 land uses in the City of Renton; namely , residential zones , single 26 family or multiple family residential uses , public or private schools , 27 churches or other religious facilities , public parks or the P-1 zone . 28 RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT -1 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON, WASHINGTON 98057 255-8678 1 Thereafter , the Renton City Council enacted Ordinance 2 No . 3637 as an amending Ordinance, and therein limited the reach 3 of Ordinance 3526 in two major respects : 4 (1) The City Council specifically limited the meaning of.. 5 the word "used" which appeared in the definition of "adult motion 6 picutre theater" in the model Detroit Zoning Ordinance and its "copy- ? cat" counterpart , Renton Ordinance 3526 (see above) to prohibit only 8 that use of a theater which constitues "a continuing course of conduct 9 of exhibiting ' specific sexual acivities ' and ' specified anatomical 10 area' in a manner which appeas to a prurient interest" ; and 11 (2) The City Council specifically limited the exercise of 12 governmental law enforcement power which is available against suspect 13 zoning violations in the City of Renton to abatement "by City Attorney 14 by way of civil abatement procuedures only and not by criminal 15 prosecution" . The City Council also increased the "notice provisions" 16 of the ordinance by declaring that, pursuant to its traditional power 17 to abate public nuisancel "a violation of the use provision of this 18 section is declared to be a public nuisance per se" 19 1"Under the specific grant of authority contained in ROW 35.22.280, 2 O a city of the first class in the State of Washington has the following special power: (31) to declare what shall be a nuisance 21 and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist: and in addition, 22 the following related powers: (34) to regulate the carrying on within its corporate limits of all occupations which are of 23 such a nature as to affect the public health or the good of said city, or to disturb the public peace, and which are not prohibited 24 by law, and to provide for the punishment of all persons violating such regulations, and of all persons who knowingly permit the same 25 to be violated in any building or upon any premises owned or controlled by them; (36) to provide for the punishment of all 26 disorderly conduct, and of all practices dangerous to public health or safety, .and to make all regulations necessary for 2 7 the preservation of public morality, health, peace and good order within its limits, . . ." ?8 RESPONSE OF CITY OF RENTON TO PLTFS' MOTION TO ALTER OR DENY JUDGMENT - 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW WO SO. SECOND ST.. P.O. COX 620 RENTON, WASHINGTON 98057 255-8678 • 1 I. The only issue before this Court on Plaintiffs ' motion to alter or amend the judgment pursuant 2 to FRCP Section 59 (e) is whether this court correctly denied Plaintiffs ' prayer for a 3 permanent injunction a ainst enforcement of Renton Ordinance No. 3637 . The original ordinance 4 No. 3526 is not an issue on this motion. ' 5 At page 1 , lines 16 to 20 of their "Memorandum In Support of 6 Motion to Alter or Amend Judgment" Plaintiffs have correctly framed 7 the issue which is before the court at this time as : 8 "COME NOW Playtime Theaters , Inc . , and Kukio Bay Properties , INc . , the Plaintiffs herein, and move 9 the Court to reconsider its decision filed February 10 18, 1983 denying Plaintiffs ' prayer for a permanent injunction against the enforcement of Renton 11 Ordinance No. 3637" 1-2 The constitutionality and application of its predecessor ordinance 13 No. 3526 is not before the court on this motion. What is before this 14 Court is Ordinance 3526 as clarified by amending ordinances 3629 15and 3627 . 2 16 1 See, however, 2A Sutherland, Statutory Construction (4th Addition 1973) Section 49.11, pages 265-266 where the author notes that amending legislation 17 is "strong evidence" of what the legislature intended in the first enactment: "Section 49.11. Legislative interpretations of former statutes. 18 Where a former statute is amended, or a doubtful meaning of a former statute rendered certain by subsequent legislation, a 19 number of courts have held that such amendment or subsequent legislation is strong evidence of what the legislature intended 20 by the first statute. . ." Citing Groves v. Meyers,35 Wn 2d. 403, 213 P.2d 483 (1950) and Miller v. 21 St. Reis Paper Company, 366 P.2d. 214 (Wn 1963) and 'whether or not a subsequent statute sheds light on the 22 meaning of a former statute depends on a number of circumstances. Where the original law was subject to very serious doubt, by 23 permitting subsequent amendments to control the former meaning a great deal of uncertainty in the law is removed. And the 24 legislature is probably in the best position to ascertain the most desirable construction. In addition it is just as probable 25 that the legislature intended to clear up uncertainties, as it did to change existing law where the former law is changed in 26 only minor details. 'Thus, it has been ascerted that 'one well recognized indication of legislative intent to clarify, rather 27 than change, existing law is doubt or ambiguity surrounding a statute. '" 23 Citing Bowen v. Statewide City Employees Retirement System, 433 P.2d 150 (63n 1967) . RESPONSE TO CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 3 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255-8878 1 II. The United States District Court ' s findings that 2 Ordinance 3637 was constitutional on its face under the test prescribed by the United States Supreme 3 Court in U. S. v. O'Brien required that the Defendant ' s summary judgment motion be granted on the ground that 4 the Plaintiffs have failed to state a claim upon which relief can be based. 5 In U. S. vs . O' Brien, 391 U. S. 367 , at 377 (May 27 , 1968) the 6 United States Supreme Court prescribed the following tests for 7 constitutionality where a claim was made , as here , that governmental 8regulations unlawfully interferred with First Amendment freedoms : 9 ". . .To characterise the quality of the governmental 10 interests which must appear, the court has employed a variety of descriptive terms : compelling; 11 substantial ; subordinating; paramount ; cogent ; strong. Whatever impression inheres in these terms , we think 12 it clear that a government regulation is sufficiently justified if it is within the constitutional power of • 13 the government ; if it furthers an important or substantial governmental interest; if the governmental 14 interest is unrelated to the supression of free expression; and if the incidental restriction on 15 alleged first amendment freedoms is no greater than is essential to the furtherance of that interest . We 16 find that the 1965 amendment of Section 12(b) (3) of the Universal Military Training and Service Act 17 meets all of these requirements , and consequently that O'Brien can be constitutionally convicted for 18 violating it. " 19 In its order at page 8 , line 10 through page 13, line 3 , the trial 20 court examined City of Renton Ordinance 3637 in the light of the 21 above described four-part O' Brien test and concluded : 22 "Renton' s effort under the circumstnaces is not unconstitutional under the First Amendment .23 Injunctive relief from enforcement of the order 24 would be improper . " 25 Having found, as a matter of law, that Renton Ordinance 3637 26 was constitutional on its face , the trial court was required to 27 deny the Plaintiffs ' motion for a permanent injunction and grant 2B the City' s motion for summary judgment . It is elementary that a RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 4 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255-8878 • 1 court has no power to grant a motion for a permanent injunction 2 under a complaint which (1) fails to state a cause of action upon 3 which relief can be based, and (2) cannot be amended so as to cure 4 such defects . Federal Rules of Civil Procedure Section 12(b) (6) . 5 The fact that the trial court , in the 'same order, denied the City' s 6 motion to dismiss upon the same grounds (FRCP, Section 12(b) (6) ) 7 does not present an inconsistency, inasmuch as Amending Ordinance 8 3637 did not appear on the face of the "Amended and Supplemental 9 Complaint for Declaratory Judgment and Preliminary and Permanent 10 Injunction" and, under one view, a summary dismissal could only be 11 had by summary judgment motion. 3 12 III. The Plaintiffs ' claim that the court 's decision 13 is contrary to the established facts of the case is foreclosed by the trial court ' s finding that 14 ordinance 3637 was constitutional under U. S. v. O'Brien. As a matter of law, the court was 15 required to grant the Defendant' s Motion for Summary Judgment . 16 Plaintiffs apparently claim that this Court cannot review, de 17 novo , the evidence adduced at the hearings for Temoporary Restraining 18 Order and for Preliminary Injunction, and find new or additional facts 19or amend facts erroneously found. No authority for such a sweeping 20 • — 21 3See 2 Sutherland, Statutory Construction (Fourth Edition 1973) Section 39.05, page 127 where the author states: 22 "Court of general jurisdiction may not, according to the majority rule and in the absence of statutory provisions to the contrary, take 23 judicial notice of municipal ordinances";. But further notes that the majority rule has been the object of criticism on the 24 grounds that it frequently results in decisions not founded on all of the law of the case. The author criticizes the majority rule and suggest that the 25 trial court should have power to judicially notice all ordinances which are available to it, and point out that the Vermont Supreme Court in Eno v. City 26 of Burlington, 125 Vermont 8, 209 A.2d 499 (1965) has held that such could be done by agreement of the parties at time of argument even though the 27 court could not on its own notion take judicial notice of an ordinance which had not been made a part of the record. 28 RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT -5 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON. WASHINGTON 98057 255-8673 1 proposition has been cited and apparently none exist. The very 2 relief requested by Plaintiffs in the instant motion is the 3 complete answer to Plaintiffs ' objection. Under FRCP 59 this Court 4 may alter or maned a previously entered erroneous decision. 5 Under the trial court' s ruling that Ordinance 3637 is constitutional 6 on its face under the four-part test of U. S . v. O'Brien (see point 7 2, supra at page 4 ) that claim is no longer available to them. 8 Because Renton Ordinance 3637 has been declared to be constitutional 9 on its face, Plaintiffs ' civil rights claim under 42 U. S . Code 10 Section 1983 is now infirm and requires a dismissal under FRCP 11 Section 12(b) (6) for failure to state a claim upon which relief 12 can be based. 13 In veiw of the trial court' s ruling, all of the allegations 14 which are aimed at raising "Schad" issues are immaterial and are 15 subject to a motion to strike under FRCP Section 12 (f) . 16 The Court' s discussion of what Plaintiffs refer to as the 17 "established facts of the case" , is nothing more than the court ' s 18 response that the Schad issue and Plaintiffs ' other claims are 19 bogus and that the facts which are addressed 'to the Schad claim 20 are inapposite. 21 IV. The Plaintiffs have addressed their arguments 22 to the wrong ordinance . 23 At page 13 , lines 15 to 22 , of their Memorandum in Support 24 of Motion to Alter or Amend Judgment , Plaintiffs are in error when 25 they make the following argument : 26 "This ordinance differentiates between theaters 27 (adult/general release) solely on the basis of the image shown on the screen inside the theater . 28 In order to justify this classification , there RESPONSE OF CITY OF RENTON TO PLTFS' MOTION TO ALTER OR DENY JUDGMENT - 6 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON. WASHI! GTON 98057 255.8678 1 must be some operational characteristic that distinguishes adult theaters from general 2 release theaters . As demonstrated by the deposition testimony of David Clemens , the City 3 was unable to identify any problems unique to adult theaters other than assertions of crime 4 and decreased property values . " (our emphasis) 5 While such an argument would be apposite if this court were consider- 6 ing the constitutionality of Ordinance 3526 in its unamended form, 7 such is not the case . Here the amended Ordinance 3637 is under 8 scrutiny and that ordinance does not 'aifferentiate between theaters 9 (adult/general release) solely on the basis of the image shown on the 10 screen. " As is pointed out in the introduction to this response 11 (see page 2 , supra) the differentiation as to Ordinance 3637 is 12 not between theaters which are used to exhibit adult and general 13 release films but rather between theaters which may exhibit "adult 14 release films" occasionally and in a ligitimate manner and those 15 which exhibit "adult release films" in a manner which appeals to 16 prurient interests and as a continuing course of conduct . When 17 one applies the minor premise to the Plaintiffs ' about described 18 major premise that "in order to justify this classification, 19 there must be some operational characteristic , that distinguishes the 20 classification" , the conclusion is obvious that the classification 21 is proper . 22 That the Plaintiffs have erroneously focused their arguments 23 is shown by their stated reliance upon the deposition testimony 24 of David Clemens which related to Ordinance 3526 and was taken 25 before Ordinance 3637 was enacted. David Clemens is a member of 26 the Administrative staff of the City and exercises no legislative 27 authority. Mr. Clemen' s testimony is his recollection of what 28 transpired before the first ordinance was enacted. It is not RESPONSE OF CITY OF RENTON TO PLTFS' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 7 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON. WASHINGTON 98057 255-8578 • • 1 probative of the thoughts of the City Council members . The use of 2 his deposition testimony is an attempt to collaterally attack the 3 fact finding and legislative process of the City Council . Rather 4 than producing a full record for this Court to review, Plaintiffs 5 seek to attack the legislation through the testimony of one only 6 collaterally involved. Such an approach has been judicially rejected. 7 See Lillion v. Gibbs 47 Wn 2d 629 , 633 , 299 P . 2d 203 (1955) . 8 "In the absence of fraud, this court will not inquire into the motives which actuated the local 9 legislative body to enact, or fail to enact , an ordinance or resolution. (citations omitted) . 10 11 There being not even a hint of fraud, the adequacy of the legislative 12 history is not a proper issue for this Court. To review the legisla- 13 tive history would be an impermissive violation of the doctrine 14 of separation of powers . Swartout v. Spokane, 21 Wn App . 665 , 670, 586 15 P. 2d 135 (1978) "We have always held to the rule that the legislative 16 declaration of the facts constituting the emergency is conclusive , unless , giving effect to every 17 presumption in its favor, the court can say that such legislative declaration, on its face, is obviously 18 false and a palpable attempt at dissimulation. . 19 "It is also well settled, both here and elsewhere , that , in determining the truth or falsity of a 20 legislative declaration of a fact, the court will enter upon no inquiry as to the facts , but must' 21 consider the question from what appears from the face of the act , aided by its judicial knowledge . " 22 And Harris v. Hornbarker , 98 Wn 2d 650 , 657 P. 2d (Feb . 1983) 23 "The rule that courts generally will not inquire 24 into the motives of legislative officers acting in a legislative capacity is not new. See 1 C. 25 Antieau, Municipal Corporation Law § 5 . 5 (1982) ; 5 E. McQuillin, Municipal Corporations § 16 . 90 26 (3d rev. ed. 1981) ; Cornelius v. Seattle , 123 Wash. 550 , 213 P. 17 (1923) ; Goebel v. Elliott , 178 27 Wash. 444, 35 P . 2d 44 (1934) . 28 "Municipal legislation is not to be nullified by the judicial branch of government unless the RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 8 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON. WASHItPSTON 88057 255-8678 • 1 enactment contravenes the constitution or is manifestly unreasonable, arbitrary and capricious . 2 3 "Flemin v. Tacoma, supra at 301 (Neill , J. concurring) . 4 Exhibition of "specified sexual activities" or "specified 5 anatomical areas" in unrestricted portions of the business zone 6 within the City is not a public nuisance per se. Even if the 7 Plaintiffs exhibit such acitivies in a residential zone , it is not 8 a violation of the zoning ordinance until the conduct can be shown to 9 be a "continuing course of conduct". Further , innocent or negligent 10 exhibitions do not establish a zoning violation inasmuch as the 11 continuing course of conduct must be presented "in a manner which 12 appeals to a prurient interest". 13 V. The City of Renton was not required to conduct a 14 study and gather expert testimony and empirical evidence on the adverse effects of adult uses on 15 neighborhoods as a condition precedent to the enactment of Ordinances 3526 , 3629 and 3637 . In 16 the performance of its legislative function, the Renton City Council was entitled to take judicial notice of both "adjudicative facts" and 17 "legislative facts' which have already been 18 established in the development of the "model" zoning ordinance upon which the Renton ordinances 19 are based. 20 In their "Memorandum in Support of Motion to Alter or Amend 21 Judgment" at page 11 , lines 12-19 , the Plaintiffs erroneously 22 contend that the City must conduct a study and gather expert testimony 23 and empirical evidence before it can enact an adult use zoning 24 ordinance . Contrary to the Plaintiffs ' contention, identical 25 ordinances need not be tested anew each time such an ordinance is 26 enacted by a different governmental entity. There is no constitu- 27 tional requirement that each successive city independently establish 28 enactment . See City of Whittier v. Walnut Properties , Inc . 189 RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 9 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. COX 626 RENTON, WASHINGTON 98057 1 Cal Rpt 12 (February 1 , 1983) where the California Court of Appeals , 2 Second District, Division 4, held on this identical issue , at 3 page 18 : 4 "The City must buttress its assertion with evidence that the State interest has a basis in fact and 5 that the factual basis was considered by the City in passing the ordinance . (Avalon Cinema Corp . v. 6 Thompson, supra, 667 F. 2d 659, 661 . ) However , identical ordinances need not be tested anew 7 each time they are enacted by a different governmental entity by establishing the actual existence of local 8 conditions which would justify it. ' . . . lawmakers in one locale (should not be denied) the benefit of 9 the wisdom and experience of lawmakers in another community, no matter how similar the circumstances ; 10 ' (see County of Sacramento v. Superior Court , Goldies Bookstores , Inc . ) (1982) 137 Cal . App 3rd 11 448, 454, 455 , 187 Cal Rptr 154) ' the factual basis ' behind certain types of zoning laws , insofar as those 12 zoning laws require dispersal or deconcentration, 13 has been developed by testimony in other cases . • Sociologists and urban planners have testified that a concentration of adult movie theaters in limited 14 areas leads to the deterioriation of surrounding neighborhoods . (See Young v. American Mini Theaters , 15 supra, 427 U. S. 50 at page 80, 96 S. Ct. 2440 , at page 2457 , 49 L.Ed. 2d 310) . This testimony is 16 sufficient and the City need not bring their own 17 sociologist to apply these observations to the City of Whittier . " 18 As to identical state statutes , see 2A Sutherland, Statutory 19 Construction, (Fourth Edition 1973) Section 52.02 "Statutes Copied 20 from Other States" at page 329 , et seq. and Section 52 . 03 "Similar 21 Statutes of Other States" at page 337 , et seq. The test prescribed 22 by the United States Supreme Court in U. S. v. O' Brien, supra, makes 23 no special demand of cities in the enactment of ordinances which 24 may impact the First Amendment area. The Renton City Council , 25 in performing its legislative duties is entitled to take judicial 26 notice of both "adjudicated facts" and "legislative facts" which 27 have already been established in the development of the model zoning 28 ordinance upon which the Renton adult use ordinance is based . RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 10 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 626 RENTON, WASHINGTON 98057 255-8673 1 The requirements for taking judicial notice in Federal Courts 2 are set forth in Federal Rules of Evidence, Section 201 . Section 3 201 draws a distinction between "adjudicative facts" and "legislative 4 facts". "Adjudicative facts" have been described as simply the 5 facts of the particular case which are determinative of the outcome 6 of litigation. Such acts are ordinarily established by evidence 7 unless they are of such character that by common acceptance they 8 stand as established without other proof. It is these facts with 9 which the rules of judicial notice deal. See 1 Jones on Evidence , 10 6th Edition, Section 2. 9 . See also Advisory Committee ' s Note to 11 Rule 201, as promulgated by the Supreme Court. "Legislative 12 facts" have been described as that great body of information and 13 expository material which contributes to rationalization by capable, 14 intelligent, and objectively thinking people in the process not 15 only of ascertaining what the common law and social concepts are , 16 but also in promoting their improvement and development . It is not 17 concern with the specific facts which are relevant to the resolution 18 of a disputed factual situation in a given case . See 1 Jones on 19 Evidence, 6th Edition, Section 2. 9. See also Advisory Committee ' s 20 Note to Rule 201 , as promulgated by the Supreme Court . - - 21 In veiw of the fact that the Renton City Council had before it 22 the same "model" zoning ordinance which was at issue in Apple 23 Theater , Inc . v. City of Seattle , 90 Wn 2d 709 , 585 P . 2d. 1153 24 (Oct. 19 , 1978) it had every right to take judicial notice of the 25 findings of the trial court and conclusions of law of the Washington 26 State Supreme Court in that case , upholding those findings . See 27 in this regard, Weiner v. Mitchell , Silberberb and Knupp , 179 Ca. 28 Rptr . 533 , where the California Court of Appeal , Second District RESPONSE OF CITY OF RENTON TO PLTFS ' WARREN & KELLOGG. P.S. MOTION TO ALTER OR DENY JUDGMENT - 11 ATTORNEYS AT LAW 100 SO. SECOND ST.. P.O. SOX 626 RENTON. WASHINGTON 98057 255-8678 1 Division Three stated at page 537 : 2 " . . .We hold that it was proper for the trial court 3 and it is proper for us . . . to take appropriate judicial notice of both the pertinent facts stated 4 in the appellate opinion and of the judgment in the aforementioned U. S. v. Weiner , supra, 578 F. 2d 757 5 (Cf Estate of Guerin, (1961) 194 Ca. App . 2d 566 , 569, 15 Ca. Rptr. 12)" 6 The court in Apple Theater, Inc. , supra, thereafter stated at 1195 : 7 ". . . The record is replete with testimony regarding 8 the effects of adult movie theater locations on residential neighborhoods . The evidence is more 9 than adequate to support the finding below that the goal of the ordinance is to preserve the character 10 and quality of residential life in the city. . . 11 . . .We conclude the city' s paramount interest in protecting, preserving, and improving the character 12 and quality of its residential neighborhoods is sufficient to justify this non-discriminatory 13 zoning regulation of the location of adult movie theaters . We find no violation of First Amendment 14 or equal protection guarantees . . . " 15 In their Memorandum in Support of Motion to Alter or Amend 16 Judgment at page 18 , lines 13 - 20 , the Plaintiffs content that, 17 because there was no special study , expert testimony, or empirical 18 data, etc . there has been a shifting of the burden of proof on the 19 issue of compelling governmental interests . The complete answer 20 to this burden of proof issue appears in that part of the Court' s 21 order at page 10, lines 0 to 20 where the court has recognized the 22 City Council ' s right to take notice of well known facts : 23 24 "Certainly, Renton must justify its ordinance, but in so doing, experiences of other cities and towns 25 must constitute some evidence to the legislative body considering course of action. Genusa v. City 26 of Peoria , 610 F. 2d 1203 , 1211 (7th Cir 1980) . If the goal of preservation of the quality of urban 27 life is to have any meaning , a city need not await deterioration in order to act . i . d. The observed P8 effects in nearby cities provides persuasive RESPONSE OF CITY OF RENTON TO PLTFS ' MOTION TO ALTER OR DENY JUDGMENT - 12 WARREN & KELLOGG. P.S. ATORNEYS AT LAW 100 SO. SECOND ST.. P.O. BOX 526 RENTON. WASHINGTON 98057 255-8678 - 1 circumstantial evidence of the undesireable secondary effects Renton seeks to preclude from within one 2 thousand feet of residential zones , schools , religious facilities , and public parks . " 3 4 Faced with this same issue, the Court of Appeals , Third Sitrict , 5 in County of Sacramento v. Superior Court, 187 Cal . Rptr . 154 6 (November 16, 1982) accurately observed that governmental bodies 7 are not required to reinvent the wheel countless times over where 8 mere access to common knowledge would render the considerable 9 effort involved unnecessary. County of Sacramento v. Superior Court , 10 supra. 11 CONCLUSION 12 The Defendants submit that the Court' s decision entered herein 13 is correct and not in need of correction or alteration as requested 14 by Plaintiffs . Therefore, the Defendants request that the Plaintiffs ' 15 Motion for Correction or Alteration of the Judgment be denied. 16 Dated March 14, 1983 . 17 Respectful submitted 18 19 Lawrence y J'--Warren 20 21 22 23 24 25 26 27 - ::•::nd 28 RESPONSE OF CITY OF RENTON TO PLTFS' 4/83 MOTION TO ALTER OR DENY JUDGMENT - 13 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW f00 SO. SECOND ST., P.O. BOX G26 RENTON, WASHINGTON 98057 255-8673 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 11 PLAYTIME THEATRES, INC . , et al ) ) 12 Plaintiffs , ) 13 CASE NO. C82-59/I ) 14 CITY OF RENTON, et al. ) ) 15 Defendants . ) ) 16 ) CITY OF RENTON, et al . , ) 17 ) CASE NO . C82-263M Plaintiffs , ) 18 ) OBJECTIONS TO MAGISTRATE' S v. ) REPORT AND RECOPTh'!ENDATION ON 19 ) DEFENDANTS ' MOTION TO DISMISS PLAYTIME THEATRES, INC . , et al. ) 20 ) Defendants . ) 21 ) 22 COMES NOW the City of Renton to object to the Magistrate' s 23 Report and Recommendations in Case No . C82-59M, dated March 23, 24 1982, as follows: 25 1 . The Magistrate' s introductory statement of facts does 26 not recite all of the facts which are apposite and necessary to 27 a resolution of the City' s claim that this Court should dismiss 28 the lawsuit, either on the ground of failure to state a claim upon OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 P. 1 RENTON. WASHINGTON 98057 255.8878 1 which relief can be based, or on the abstention Principles 2 announced in Younger v. Harris , 401 U. S . 37 , Huffman v. Pursue Ltd . , 3 420 U. S . 592, Steffel v. Thompson, 415 U. S . 452, and Hicks v. 4Miranda, 422 U. S . 332, and the opinion of Associate Justice 5 Stevens in Young v. American Mini Theater., Inc. , et al . , 427 U. S . 6 50, at 61 . 7 2 . The Magistrate' s conclusion that the "Defendants ' 8 contention that the Court lacks jurisdiction is meritless, " 9 (Report, page 2, lines 12-14) is erroneous . 10 2 (A) . The Magistrate' s conclusions that "The dispositive 11 issue in this action is whether the Renton Zoning Ordinance has the 12 effect of suppressing or greatly restricting plaintiffs ' access 13 to the market for protected speech or is instead a permissible 14 time, place, and manner restriction" (Report at page 3, lines 12- 15 16) and that the "Plaintiffs ' amended complaint raises these 16 issues : (1) whether on the record there is a compelling state 17 interest to justify the zoning ordinance which affects protected 18 First Amendment Speech; and, (2) whether the zoning ordinance 19 places an unconstitutional restriction on access to the market for 20 protected speech. " (Report at page 2, lines 14-19) are erroneous . 21 2 (B) . The Magistrate' s conclusion that "there is no 22 conceivable limiting statutory construction by a state court that 2`' would resolve this issue. " (Report at page 2, line 26 through 24 page 3, line 3, and page 3, lines 18-20) is erroneous . 25 3. The Magistrate' s conclusions that the enforcement of 26 a City Zoning Ordinance forbidding "Adult Motion Picture Theaters" 27 in certain areas is not a "civil enforcement proceeding" within 28 the meaning expressed in Huffman v. Pursue Ltd. , supra, (Report OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORN[Y[ AT LAW 100 SO. SECOND ST.. P. O. BOX 020 RENTON. WASHINGTON 98057 P . 2 255-8678 1 at page 4, lines 5-15) is erroneous . 2 3 (A) . The Magistrate' s conclusion that abstention is not 3 appropriate to allow the state court to construe the state 4 statute in the first instance, (Report, at page 3, lines 23-25 , 5 and lines 6-9) is erroneous . 6 4. The Magistrate' s statement that "Defendants use the 7 assertion of that claim (conditional use) as a basis for arguing 8 that plaintiff' s must exhaust those remedies (administrative) " 9 (Report, at page 4, lines 23-24) misunderstands the thrust of 10 the Defendants ' argument. 11 12 ARGUMENT 13 I 14 Introduction 15 On June 24, 1976, the United States Supreme Court upheld 16 a Detroit Zoning Ordinance relating to the use of property for 17 "Adult Motion Picture Theater, " "Adult Book Store, " and "Adult 18 Mini Motion Picture Theater" in Young v. American Mini Theatre, 19 Inc . , et al , 427 U. S . 50. In the Young case, Justice Stevens , 20 speaking for the Court, rejected a claim that the Detroit 21 Ordinance was too vague, held at page 61 : 22 "to the extent that an area of doubt exists, we see no 20 reason why the ordinances are not 'readily subject to 24 a narrowing construction by the state courts. '" 25 On April 13, 1981 , the Renton City Council passed and 46 adopted City of Renton Ordinance No . 3526, containing the 27 identical language of a portion of the Detroit Zoning Ordinance 28 which had been before the U. S . Supreme Court in the Young case WARREN & KELLOGG. P.S. OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEYS AT LAW %Oo SO. SECOND ST.. P. O. SOX 626 RENTON. WASHINGTON 98057 P. 3 255-8678 1 (that portion relating to "Adult Motion Picture Theater . ") 2 See 427 U. S . 50 at 53 , fn. 4. 3 On January 28 , 1982, Plaintiff Kukio Bay Properties , Inc . 4 purchased the Roxy Theater and the Renton Theater in Renton. On 5 or about January 27 , 1982, Kukio Bay Properties , Inc. leased 6 said theaters to Plaintiff Playtime Theaters, Inc . . The 7 lease agreements provide that the premises are to be used "for 8 the purpose of conducting therein adult motion picture theaters . " 9 (Amended Complaint, page 4, lines 19-22) . Mike Parness , 10 Administrative Assistant to the Mayor of the City of Renton 11 advised the Plaintiffs on January 19, 1982 that if the property 12 of the Plaintiffs is used to exhibit adult motion picture films , 13 enforcement proceedings will be commended. (Amended Complaint, 14 page 6, lines 8-12) . Plaintiffs have admitted that one of said 15 theaters would continuously operate exhibiting adult motion 16 picture film fare to an adult public audience but for the 17 threats of the Defendants to enforce the Zoning Ordinance 18 (Amended Complaint, page 4, lines 26-29) . 19 On January 20, 1982, Plaintiffs Playtime Theatres, Inc . and 20 Kukio Bay Properties filed an action entitled "Complaint for 21 Declaratory Judgment and Preliminary Injunction, " alleging 22 jurisdiction under 28 U. S. C. §1131 (a) , 42 U. S .C . §1983 and 28 23 U. S .C. §2202 and Rule 57 of the Federal Rules of Civil Procedures , 24 challenging the constitutionality of Renton Zoning Ordinance No . 25 3526 . 26 On January 29, 1982, Plaintiffs moved for a temporary 27 restraining order as ancillary relief under their original 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. P. 4 ATTORNEY[AT LAW 100 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 256-8678 1 Complaint . Following oral argument on that date, the Magistrate 2 announced orally, from the bench, that he would recommend the 3 denial of the temporary restraining order . 4 On February 3 , 1982, U. S . Magistrate Sweigert filed his 5 Report and Recommendation and Proposed Form of Order in which 6 he recommended that this Court deny the request for a temporary 7 restraining order. 8 On February 9 , 1982, and before this Court had formally 9 ruled upon the motion for a temporary restraining order under 10 the original Complaint, Plaintiffs filed and served a new 11 Complaint entitled "Amended and Supplemental Complaint for 12 Declaratory Judgment and Preliminary and Permanent Injunction" 13 raising a new issue that under the Renton Zoning Ordinance a 14 conditional use must be applied for. Such issue ignored the 15 testimony of David R. Clemens, Director of Policy Planning of 16 the City of Renton at the hearing on the temporary restraining 17 order on January 29, 1982 that no conditional use permit was 18 required for operation of a movie theater in the business and 19 more intense zones of the City; i. e. , that under the Zoning 20 Ordinance, an Adult Motion Picture Theater was an allowable 21 use within the City of Renton to the extent not prohibited by 22 the restrictions of Ordinance 3526. 23 On February 19, 1982, the City filed a civil action in 24 King County Superior Court seeking a declaratory judgment that 25 the ordinance involved in the instant action is constitutional 26 as applied to the Plaintiffs ' proposed use of the two theaters . 27 On February 22, 1982 (within the time allowed the Defendants ?8 to file a response in the lawsuit) the Defendants filed a OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. ►. O. BOX 626 P. 5 RENTON. WASHINGTON 98057 255.8878 1 response in the lawsuit) the Defendants filed a responsive 2 pleading to the Plaintiff' s "Amended and Supplemental Complaint 3 for Declaratory Judgment and Preliminary and Permanent 4 Injunction" (i. e. , this Motion to Dismiss) . 5 On February 23, 1982, this Court considered the request 6 for temporary restraining order de novo and rendered its judgment 7 that the Plaintiff' s motion for temporary restraining order under 8 the original Complaint which was superceded by the Amended 9 Complaint was denied. Judgment was entered on the same date . 10 The City moves to dismiss the present action because: (1) 11 the Amended and Supplemental Complaint fails to state a 12justiciable claim upon which relief can be based under either 13 28 U. S . C. , section 2202 or 42 U. S. C. §1983; and this Court lacks 14 jurisdiction of the subject matter (i. e. , the interpretation to 15 be given to Ordinance No . 3526 and whether it can or needs to 16 be given a narrowing construction) and (2) this Court should 17 abstain from exercising jurisdiction under the principles 18 expressed in Younger v. Harris, supra, Huffman v. Pursue Ltd. , 19 supra, Steffel v. Thompson, supra, and the opinion of Associate 20 Justice Stevens in Young v. American Mini Theater , Inc. , et al , 21 supra. 22 I I 23 The U. S. District Court Lacks Jurisdiction Of 24 The Subject Matter Of The Declaratory Judgment Action 25 Renton Ordinance No . 3526 contains the identical language 26 of the zoning ordinance which was considered by the U. S . Supreme 27 Court in Young v. American Mini Theatres, Inc . , et al , 427 U. S. 28 OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 6 ,...0. SECOND ST.. P. O. sox ate RENTON. %VASHINGTON 98057 255.8878 1 50. See Young at page 53 , footnote 4 for the definitions of 2 "Adult Motion Picture Theater, " "Specified Sexual Activities , " 3 and ''Specified Anatomical Areas . " 4 In Your_g, supra, the theaters contended at page 58 : 5 "that the ordinances are so vague that they violate the Due 6 Process Clause of the Fourteenth Amendment. " In addressing 7 the "vagueness" contention in that case, Justice Stevens noted, 8 at page 58 : 9 "There are two parts to respondents ' claim that the ordinances are too vague. They do not attack the 10 specificity of the definition of ' Specified Sexual 11 Activities ' or ' Specified Anatomical Areas . ' They ' argue, however , that they cannot determine how much 12 of the described activity may be permissible before the exhibition is ' characterized by an emphasis ' on 13 such matter . In addition, they argue that the ordinances are vague because they do not specify 14 adequate procedures or standards for obtaining a waiver of the 1 , 000-foot restriction. 15 "We find it unnecessary to consider the validity 16 of either of these arguments in the abstract. For even if there may be some uncertainty about the effect of 17 the ordinances on other litigants, they are unquestionably applicable to these respondents . The record indicates 18 that both theaters propose to offer adult fare on a regular basis . Neither respondent has alleged any 19 basis for claiming or anticipating any waiver of the restriction as applied to its theater. It is clear, 20 therefore, that any element of vagueness in these ordinances has not affected these respondents . " 21 Thereafter , in ruling on the theater' s claims as to vagueness 22 of the language which was used and whether that issue was one 23 which required federal intervention, Justice Stevens responded 24 both generally and specifically to that issue, at page 60 : 25 "We are not persuaded that the Detroit zoning ordinances 26 will have a significant deterrent effect on the exhibition of films protected by the First Amendment. As already noted, 27 the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before 28 the material can be said to be ' characterized by an emphasis ' on such matter. For most films the question WARREN & KELLOGG. P.S. OBJECTIONS TO MAGISTRATE' S REPORT ATTORNEYS AT LAW P 7 tOO 6O. •ECONO ST., P. O. DOE 626 RENTON. WASHINGTON 98057 255.8878 1 will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances 2 are not 'readily subject to a narrowing construction by the state courts . Since there is surely a less vital 3 interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic 4 expression than in the free dissemination of ideas of social and political significance, and since the 5 limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this 6 is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court . " 7 (Our emphasis) . 8 The general language underscored above: 9 "For most films the question will be readily answerable; to the extent that an area of doubt 10 exists, we see no reason why the ordinances are not 'readily subject to a narrowing construction by 11 the state courts ' ", 12 although not necessary to the decision in that case, does consti- 13 tute a binding decision that such language is not vague and does 14 not present a substantial federal question which will authorize 15 federal intervention. Justice Stevens ' opinion requires this 16 Court to hold, as a matter of law that such language as is used 17 in the Renton ordinance is susceptible of a narrowing construction, 18 and that the Court has no jurisdiction to proceed further in regard 19 to the application of such ordinance to specific properties where 20 the City of Renton has clearly stated that it wishes to have the 21 matter resolved in the pending state court proceedings, where it 22 can obtain the "narrowing construction" which this Court cannot 23 give to the ordinance. See U. S . v. 37 Photographs , 402 U. S . 363, 24 where the U. S . Supreme Court noted at page 368 that the federal 25 courts lack jurisdiction to construe state legislation: 26 As enacted by Congress, §1305 does not contain 27 explicit time limits of the sort required by Freedman, Teitel, and Blount. These cases do not, however, require 28 that we pass upon the constitutionality of §1305(a) , for it is possible to construe the section to bring it in OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW IOO SO. SECOND ST.. P. O. SOX 626 P. 8 RENTON. WASHINGTON 98057 255-8678 1 harmony with constitutional requirements . It is true that we noted in Blount that "it is for Congress , not 2 this Court , to rewrite the statute. " 400 US . at 419 , 27 L Ed 2d at 505 and that we similarly refused to 3 rewrite Maryland' s statute and Chicago ' s ordinance in Freedman and Teitel . On the other hand, we must 4 remember that—"(w)hen the validity of an act of Congress is drawn in question, and . . . a serious doubt 5 of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether 6 a construction of the statute is fairly possible by which the question may be avoided. " Crowell v. Benson 7 285 US 22, 62, 76 L Ed 598 , 619, 52 S Ct 285 (1932) . Accord, e.g . , Haynes v. United States , 390 US 85 , 92 , 8 19 L Ed 2d 923 , 929, 88 S Ct 722 (1968) (dictum) ; Schneider v. Smith, 390 US 17 , 27 , 19 L Ed 2d 799 , 9 806, 88 S Ct 682 (1968) ; United States v. Rumley, 10 345 US 41, 45, 97 L Ed 770, 775, 73 S Ct 543 (1953) ; Ashwander v. Tennesse Valley Authority, 297 US 288, 11 348 , 80 L Ed 688 , 711, 56 S Ct 466 T936) (Brandeis , J. , concurring) . This cardinal principle did not govern 12 Freedman, Teitel, and Blount only because the statutes there involved could not be construed so as to avoid 13 all constitutional difficulties . 14 The obstacle in Freedman and Teitel was that the statutes were enacted pursuant to state rather than 15 federal authority; while Freedman recognized that a statute failing to specify time limits could be saved 16 by judicial construction, it held that such construction had to be "authoritative, " 380 US, at 59, 13 L Ed 2d at 655, 17 and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co . v. State Tax 18 Comm'n 322 US 335, 337 , 88 L Ed 1309, 1311, 64 S Ct 1028 (1944) . (Our emphasis) 19 Every court has jurisdiction to determine its own 20jurisdiction. See Prack v. Weissinger, (C. A.4, 1960) 276 F . 2d 466 21 at 450: 22 " We are of the opinion that Miss Prack's second point of error is 23 well taken. The general rule as to the power of a court to determine its own jurisdiction is stated in 21 C.J.S. Court §113 (1940) , as follows: 24 "Every court has judicial power to hear and determine, or 25 inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, 26 whether of law or fact, the decision of which is necessary to determine the question of jurisdiction . . .***" 27 The decision of Justice Stevens in Young, supra, 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS Al LAW P. 9 100 SO. SECOND ST.. P. O. BOX 126 RENTON. WASHINGTON 98057 255-8878 1 requires this court to grant the defendant ' s motion and dismiss 2 the Amended Complaint for lack of subject matter jurisdiction. 3 II (A) 4 The Magistrate' s Conclusion That The Pleadings 5 Presented Issues For the Determination Of The 6 Federal Court Is Erroneous . 7 The Magistrate ' s conclusion that : 8 1 . "The dispositive issue in this action is whether the Renton zoning ordinance has the effect of suppressing 9 or greatly restricting plaintiffs ' access to the market for protected speech or is instead a permissible 10 time, place, and manner restriction" ; and 11 2 . "Plaintiffs' amended complaint raised three issues : (1) whether on the record there is a compelling state interest 12 to justify the zoning ordinance which affects protected First Amendment Speech ; and (2) whether the zoning ' 13 ordinance places an unconstitutional restriction on access to the market for protected speech. " 14 are erroneous . Insofar as the federal issue of the facial 15 validity of Renton Zoning Ordinance 3526 is concerned, those 16 issues have already been answered by Justice Stevens ' opinion 17 in Young, supra. Insofar as the same issues are raised in 18 relation to any alleged application of Renton Ordinance 3526 19 to the Roxy and Renton Theaters themselves , those matters are , 20 in principle, for the determination of the City of Renton as to 21 22 how and when and in what context they may be raised. The City of Renton having already filed a lawsuit in the state court seeking 23 a resolution of the application of the ordinance to the Renton 24 25 and Roxy' s proposed uses , the latter issue is , under Justice 26 Stevens ' opinion, for the state court ' s determination. 27 The City' s decision to have this issue resolved in the state 28 court is not arbitrary. The reasons for the City ' s choice of OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P• 10 100 SO. SECOND ST.. P. O. BOX 426 RENTON. WASHINOTON 98057 255-8878 1 state forum are very practical ones, from the standpoint of 2 its financial liability: 3 (1) The City has relied upon Justice Stevens ' opinion which holds that the language of the Detroit ordinance 4 is not vague, and that a city may enact such ordinance with reasonable certainty that it would not thereby be 5 liable unless it improperly applied the ordinance to specific facts and a specific use of property. 6 (2) The City does not wish to engage, involuntarily, 7 in abstract litigation with the Renton and Roxy Theaters , --litigation which subsequent events may prove to be 8 unprofitable and ill advised. 9 (3) The City is aware of its absolute liability under Monell v. New York City Dept. of Social Services , 436 10 U. S . 658, and Owens v. City of Independence, 455 U. S. 622, for the deprivation of civil rights under 42 U. S .0 11 section 1983, and of the differing standards in determining responsibility for attorney' s fees as a prevailing party 12 in 42 U.S .C. Section 1983 litigation. Such standards favor the Civil Rights Plaintiff, Entertainment Concepts , Inc . v. 13 Maciejewski, 631 F. 2d 497 (7th Cir. , 1980) , cert. denied in Maciejewski v. Entertainment Concepts, Inc. , U. S . , 14 67 L.Ed. 2d 346 (Feb. 23, 1981) ; see also , Supreme Court of Virginia v. Consumers Union of the U. S . , 446 U. S . 719 at 15 , 737 n. 17 (1980) and deter the City from affirmatively applying the ordinance in an unreasonable manner . 16 (4) The City wishes its financial responsiblities for 17 unsuccessful litigation to be measured by state concepts of liability for malicious prosecution for litigation 18 which has been unlawfully initiated pursuant to its own affirmative action, rather than in terms of liability for 19 federal litigation pursuant to 42 U. S . C. section 1983 and 1988 for abstract civil rights violations , in which it is 20 an unwilling participant, and has no opportunity to have the state statute "authoritatively construed" . U. S . v. 21 37 Photographs, supra. nn 22 (5) The City is aware of the irreconcilable results which can be reached in federal and state courts regarding the 23 identical state statute. See, in this regard, in this state, Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135 24 (9th Cir. , 1980) , affirmed in Brockett, Spokane County Prosecuting Attorney v. Spokane Arcades, Inc. No . 80-1604, 25 U. S. , 70 L . Ed. 2d 468; and in the State of North Carolina, see State of North Carolina ex rel . Andrews v. 26 Chateau X, Inc. , 296 N.C . 251, 250 S .E. 2d 603 (Jan. 4, 1979) remanded for reconsideration in Chateau X, Inc. v. State of 27 North Carolina, No . 78-138, 445 U. S . 947 (Mar . 31, 1980) 28 in light of Vance, et al v. Universal Amusement Co . , Inc . , OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 11 100 SO. SECOND ST.. P. O. BOX 626 RENTON. WASHINGTON 98057 255-8678 1 445 U. S . 308 , 100 S . Ct . 1156 , 63 L.Ed. 2d 413 (Mar . 18 , 1980) and readopted and reaffirmed in Chateau X, Inc. 2 v. State of North Carolina ex rel . Andrews, 302 N. C. S. E. 2d (Mar . 4, 1981) ; and in the State 3 F Idaho, see Idaho ex rel . Wayne Kidwell v. U. S . Marketing, Idaho , 631 P. 2d 622, probable 4 jurisdiction noted by the U. S . Supreme Court on January 11 , 1982 in U. S . Marketing, Inc . , et al . v. 5 State of Idaho, No. 81-741 , 50 L.W. 3547 , unilaterally dismissed by the Appellants, U. S . Marketing, Inc . et al , 6 on March 10, 1982 under U. S . Supreme Court Rule 53 and against the objections of the Attorney General of the 7 State of Idaho. See 50 L.W. 3751 . In the North Carolina Case, above noted, the North Carolina State Moral Public 8 Nuisance Statute was construed by the North Carolina State Supreme Court and upheld as constitutional without 9 considering the "closure" issue; in the Idaho case, the Idaho Moral Public Nuisance Statute (identical in 10 content) was construed by the Idaho State Supreme Court and upheld as constitutional including the ''closure" 11 issue; in the Washington case, the Washington Moral Public Nuisance Statute (identical in content) was held. 12 by the U. S. District Court to be facially unconstitutional in a decision in which the federal court refused to 13 construe the statute or sever the parts which it had held to be unconstitutional . In a Petition for Rehearing filed • 14 in the Supreme Court (80-1604) , the Spokane County Prosecuting Attorney brought to the attention of the U. S . 15 Supreme Court the fact that the Plaintiffs in his 42 U. S . C. §1983 litigation were claiming reasonable attorney' s 16 fees and costs of $75, 000. 00 for a civil rights action (in which the Spokane County Prosecutor was an involuntary 17 litigant) . On January 11, 1982, the U. S. Supreme Court denied that Petition for Rehearing. See C.C .H. , U. S . 18 Supreme Court Bulletin at page B 666. 19 II (B) 20 The Magistrate' s Conclusion That Renton 21 Ordinance No . 3526 Cannot Be Given A Limiting 22 Construction Is Erroneous . 23 The Magistrate' s conclusion that "there is no conceivable 241imiting construction by a state court that would resolve this 25 issue" is not supported by recent case law. Compare in this 26 regard, the language and construction given by California State 27Courts to the identical ordinance in Walnut Properties , Inc . 28v. Long Beach City Council , 100 Cal . App. 3d 1018, at 1021 , 161 OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW tOO SO. SECOND ST.. ►. O. BOX 626 P . 12 RENTON. WASHINGTON 98057 255-8678 1 Cal . Rptr . 411 , at 413 , hearing denied by the California 2 Supreme Court on March 13 , 1980; Pringle v. City of Covina , 3 115 Cal . App. 3d 151 at 160; 171 Cal Rptr. 251 , at 255, hearing 4 denied by California Supreme Court on March 25 , 1981 ; Castner v. 5 City of Oakland, Cal . App. 3d , 180 Cal Rptr , 682, at 684 6 (Feb . 2 , 1982) Kuhns v. Santa Cruz County Bd. of Supervisors , 7 Cal . App. 3d , 181 Cal Rptr. 1 at 4 . 8 The City of Renton does not rely upon the interpretations 9 given to such language by the above California State courts , but 10 contend, instead, that a constitutional construction can be 11 given such language by the Washington State courts that the land 12 use proscribed by such language in such Zoning Ordinance is a 13 use which: (1) is a continuing course of conduct of repeated 14 violations , which (2) is not innocent, but "panders", being a use 15 which appeals to prurient interest; i. e. a manner of use which 16 incites lasciviousness or lust. See Substitute House Bill 626, 17 Section 1 , (8), page 2, lines 29-30, enacted April 1, 1982. 18 19 20 ///// ///// 21 22 • 23 24 ///// //// 25 26 27 28 OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. P. 13 ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. SOX 426 RENTON. WASHINGTON 98057 255-8678 1 III 2 THE ENFORCEMENT OF A CITY ZONING ORDINANCE 3 RELATING TO THE USE OF PROPERTY FOR AN "ADULT MOTION PICTURE THEATER" IS A "CIVIL 4 ENFORCEMENT PROCEEDINGS" WITHIN THE MEANING OF HUFFMAN V. PURSUE, LTD. 5 In Huffman v. Pursue , Ltd. 420 U. S . 592 , the United States 6 Supreme Court extended the Younger v. Harris abstension doctrine 7 in criminal prosecutions to civil cases to abate a public nuisance 8 where : (1) the state is a party to the proceedings and the civil 9 proceeding to abate a public nuisance is both in aid of and 10 closely related to criminal statutes which prohibit the 11 dissemination of obscene. material , and (2) a federal injunction 12 interfering with the state proceeding to abate a public nuisance 13 disrupts the state 's effort to protect the very interests which 14 underlie its criminal laws and to obtain compliance with precisely 15 the standards embodies in those laws . See Huffman v. Pursue , 16 Ltd. , supra, at page 604. 17 A violation of the use provisions of Renton Zoning ordinance 18 No. 3526, under the above construction and traditional and well- 19 recognized concepts of municipal law, is also a public nuisance 20 which is subject to abatement. See McQuillan, Municipal 21 --- Corporations , volume 8, s25 . 11 "Zoning and Nuisances" at page 31 22 and Shields v. Spokane School District , No . 81 , 31 Wash. 2d 247 , 23 196 P. 2d 352, following Robinson Brick Co. v. Luthi , 115 Colo. 24 106, 169 P. 2d 171 , 166 A.L. R. 655 , cited at footnote 5 of the 25 McQuillan text. 26 The declaratory judgment proceedings which have been filed in 27 the Washington state court, being in the nature of a civil action 28 to declare that such proposed land use in the proscribed area is a OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 0 SO. SECOND ST.. P. O. SOX 626 P. 14 weRENTON. WASHINGTON 98057 255-8678 1 public nuisance which is subject to abatement under the zoning 2 restriction and may be enjoined, is but another way of enforcing 3 the public policy which was the subject of the lawsuit in Huffman 4 v. Pursue , Ltd. In that case, the situations were reversed: 5 Pursue , Ltd. framed its cause of action in terms of a declaratory 6 judgment action ; whereas , the Prosecuting Attorney framed his 7 pleadings in terms of a "public nuisance" which required abatement 8 under the civil law. 9 The declaratory judgment judicial proceedings which have been 10 filed in the state court herein are no less important than the -11 "Civil Enforcement Proceedings" in Huffman v. Pursue , Ltd. See 12 Justice Stevens , speaking in the Young case at page 71 : 13 "The record discloses a factual basis for the Common Council ' s conclusion that this kind of restriction will have 14 the desired effect . It is not our function to appraise the wisdom of its decision to require adult theaters to be 15 separated rather than concentrated in the same areas . In either event , the city 's interest in attempting to preserve 16 the quality of urban life is one that must be accorded high respect . Moreover, the city must be allowed a reasonable 17 opportunity to experiment with solutions to aamittedly le serious problems . ' (Our emphasis . ) 18 19 III (A) 20 The Magistrate' s Conclusion That Abstention 21 Is Not Appropriate Is in Error . Abstention 22 Is Not Only Appropriate, It Is Required. 23 The Magistrate' s conclusion that abstention is not appropriate 24 to allow the state court to construe the state statute in the first 25 instance is erroneous . Abstention is not only appropriate, it is 26 required because it is jurisdictional . See the defendants ' contention 27 herein at Point II , page 8 . Under the defendants ' alternative 28 contention, on principle, the plaintiffs have failed to state a OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 P . 15 RENTON, WASHINGTON 98057 255-8678 1 claim upon which relief can be based. See Martinez v. California 2 444 U. S . 227 , 62 L Ed. 2d 481 (Jan. 15 , 1980) ; Allen V. McCurry , 3 U. S . 66 L.Ed. 2d 308 , at 313 (Dec . 9 , 1980) and Parratt v. 4 Taylor , U. S . , 68 L.Ed. 2d 420 , at 434 (May 18 , 1981) . See also , 5 Point II of Memorandum of Points and Authorities in Support of 6 Defendants ' Motion to Dismiss Complaint Pursuant to F. R. C .P . 12 (b) 7 (1) and 12(b) (6) , at pages 10-13. 8 Abstention is required by principles of comity which have nothing 9 to do with the fact that the Plaintiffs in this federal court have 10 been the first to file their cause of action in the courtroom. See 11 here Justice White speaking for the Court in Hicks v. Miranda, 422 12 U. S . 332 at 349 (June 24, 1975) 13 " . . . Neither Steffel v. Thompson, 415 US 452 , 39 L Ed 2d 505 , 94 S . Ct . 1209 (1974) , nor any other case in this Court 14 has held that for Younger v. Harris to apply, the state criminal proceedings must be pending on the day the federal 15 case is filed. Indeed, the issue has been left open and we now hold that where state criminal proceedings are begun 16 against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits 17 have taken place in the federal court, the principles of Younger v. Harris should apply in full force . . . Unless we 18 are to trivialize the principles of Younger v. Harris , the federal complaint should have been dismissed on the State' s 19 motion absent satisfactory proof of those extraordinary circumstances calling into play one of the limited exceptions 20 to the rule of Younger v. Harris and related cases . " 21 As Justice Stewart stated in his dissent in Hicks , supra, at 22 page 354: 23 _"There is , to be sure, something unseemly about having the 24 applicability of the Younger doctrine turn solely on the outcome of a race to the courthouse. . ." 25 There is no way in which the City could get the "authoritative" 26 construction of the ordinance in the state court , to which 27 it is entitled and as was envisioned by Justice Stevens ' 28 opinion in Yount, if this Court were to reject abstention by OBJECTIONS TO MAGISTRATE ' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 P. 16 RENTON. WASHINGTON 98057 255.8678 1 attributing weight to the fact , that the Plaintiffs were the first 2 to file their cause of action. The nature of the controversy is 3 such that the City of Renton will never be aware that such a 4 controversy exists , and hence will be unable to bring its state 5 action, until either: (1) the theaters change their use 6 (programming) from one which is traditional to that which can be 7 recognized as the programming of an "Adult Motion Picture 8 Theater" , or (2) the theater formally announces its future 9 intentions (as in this case) by the filing of its lawsuit. 10 The record herein shows that the City of Renton acted in 11 a timely manner by filing its state action before it was 12 required to respond with a responsive pleading to the federal 13 lawsuit. Further, the Statement of Facts recited above 14 demonstrates that when the City of Renton did file its 15 Motion to Dismiss on February 22, 1982 , it was in answer to the 16 Amended Complaint filed on February 9th. On that date , the 17 Plaintiffs had already abandoned their original complaint (filed 18 on January 20 , 1982) , under which they sought a temporary 19 restraining order, which order was denied on February 23 , 1982 , 20 the day after the City filed its Motion to Dismiss the 21 Amended Complaint. 22 IV 23 THE MAGISTRATE MISUNDERSTANDS THE THRUST OF THE DEFENDANTS ' ARGUMENT REGARDING EXHAUSTION 24 OF ADMINISTRATIVE REMEDIES . 25 The Magistrate ' s statement that "Defendants use the 26 assertion of that claim (conditional use) as a basis for arguing 27 that Plaintiff must exhaust those remedies (administrative) " 28 misunderstands the thrust of the Defendants ' argument. The City OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 17 100 SO. SECOND ST., P. O. SOX 1128 RENTON. WASHINGTON 98037 255.8878 1 contends that the Plaintiffs ' attorney should not be allowed to 2 assert in a verified pleading a contention which is the 3 appropriate subject of an administrative ruling on a zoning 4 matter , without establishing the basis for the correctness of such 5 administrative ruling; particularly where there is sworn testimony 6 of the responsible City officer in the same federal court , prior 7 to the filing of such pleading, that the administrative ruling on 8 that issue is contrary to the fact which is sworn to in such 9 pleading. 10 The Magistrate ' s statement (Report at page 4, line 11 25 et seq. ) that "exhaustion of administrative remedies is not 12 required to invoke federal jurisdiction under 42 U. S . C . s 1983 13 'unless the administrative remedy is fully adequateto obviate the 14 federal claims " is a correct statement of the law, but a 15 misapplication of such law to the facts of record the 16 Plaintiff' s spurious claim regarding "conditional use" under such 17 rule of law would have been obviated by the administrative remedy 18 when he became aware of the testimony of David R. Clemens , the 19 Director of Policy Planning of the City of Renton, at the hearing 20 upon Plaintiff's motion for a temporary restraining order on 21 January 29 , 1982, almost two weeks prior to the filing of 22 Plaintiffs ' Amended Complaint , that no conditional use permit 23 was required. Under ruling case law in the 9th Circuit , Plaintiff 24 was required to exhaust his administrative remedy (either by 25 inquiry, or by notice of the City' s position) because such remedy 26 would obviate his federal claim. 27 / 28 / OBJECTIONS TO MAGISTRATE'S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 18 100 SO. SECOND ST.. P. O. BOX e2e RENTON, WASHINGTON 98057 255-8878 1 CONCLUSION 2 For all of the reasons noted above , Defendants submit 3 that this Court should grant the City of Renton' s Motion to 4 Dismiss . 5 DATED: April 7 , 1982. 6 Respectfully submitted , 7 8 #4‘..c....e. re7i. 9 10 11 12 13 14 15 16 17 18 19 - 20 21 22 23 24 25 26 27 28 OBJECTIONS TO MAGISTRATE' S REPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P. 19 too So. sEcoNG ST.. P. O. sox Str RENTON. WASHINGTON 98057 255-8678 1 2 COPY k L : D � c by HUBBARD & 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC . a ) Washington corporation , et al . , ) NO. C82-59M 11 ) Plaintiffs , ) 12 ) vs . ) 13 ) THE CITY OF RENTON , et al . , ) 14 ) Defendants . ) 15 ) ) 16 THE CITY OF RENTON , a municipal ) NO. C82-263 corporation , ) 17 ) BRIEF IN OPPOSITION TO Plaintiff , ) PLAYTIME THEATRES MOTION 18 ) TO DISMISS CITY OF RENTON vs . ) COMPLAINT FOR DECLARATORY 19 ) JUDGMENT AND IN REPLY TO PLAYTIME THEATRES, INC. , a ) PLAYTIME THEATRES MEMO- 20 Washington corporation , et al . , ) RANDUM IN OPPOSITION TO ) REMAND 21 Defendants . ) 22 — - ) A. The State Action Has Been Improperly Removed . The 23 United States District Court lacks. jurisdiction to rule on the Defendant ' s Motion to Dismiss . 24 28 U. S. C. Section 1447 (c) provides in part that : 25 "( c) If at any time before final judgment it 26 appears that the case was removed improvidently and without jurisdiction , the District Court shall 27 remand the case , and may order the payment of just costs ." 28 BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORNEYS TO DISMISS AND IN REPLY TO MEMORANDUM IN Ioo so. eccoNDAT LAWST., P. O. eox e:e OPPOSITION TO REMAND - PAGE 1 RENTON. WASHINGTON 98057 233-8878 1 The term "without jurisdiction" refers to want to federal 2 subject matter jurisdiction . Prack v . Weissenger , 276 F . 2d . 3 446 ( CA 4th 1960) ; Haelan Laboratories , Inc . v . Topps Chewing 4 Gum Inc . , 131 F. Sup . 262 (EDNY 1955) . 5 Since the United States District Court is a court of 6 limited jurisdiction , a presumption arises that a cause is 7 without its jurisdiction . The burden is upon the party who 8 seeks the jurisdiction of the court , that is , the defendant 9 who seeks removal of a State Court proceeding , to establish 10 by a preponderance of evidence that the case falls within the 11 District Court ' s jurisdiction . If it is at all doubtful that 12 the petitioner has sustained that burden , the cause should be 13 remanded . Butler v . Polk , 592 F. 2d 1293 (CA 5th 1979) ; Jones 14 v . General Tire & Rubber Co . , 541 F. 2d 660 (CA 7th 1976 ) ; 15 Alabama ex rel Flowers v . Robinson , 220 F . Supp . 293 (D. C. 16 Ala . 1963) . 17 The trend is to restrict and limit the removal 18 jurisdiction of the Federal Court . Wright , Miller & Cooper , 19 Federal Practice & Procedure , Jurisdiction , Section 3721 , 20 page 533 ( 1976 ) ; Shamrock Oil & Gas Corp. v . Sheets , 313 U. S . 21 100 , 85 L. Ed . 1214 , 61 S. Ct . 868 ( 1941 ) ; Hibhart v . Santa 22 Monica Dairy Co. , 592 F. 2d 1062, 1064 (CA 9th 1979) . The 23 fact that a related case is pending in Federal Court is not , 24 in itself, sufficient grounds for removal . Fabricius v . 25 Freeman , 466 F . 2d 689 (CA 7th 1972) . 26 The record herein establishes that Playtime Theatres 27 has not sustained their burden . See City of Renton ' s 28 Memorandum of Law in support of its motion to remand the BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORNEY/ AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN too •O. SECOND •T.. P. O. 007E •i• OPPOSITION TO REMAND — PAGE 2 RENTON. WA•HINGTON 98057 255.8878 I 1 civil action to the State Court , filed with this Court on 2 March 11 , 1982. See also the nature of the controversy and 3 the facts pleaded by the City of Renton in the State 4 declaratory judgment action wherein the City of Renton seeks 5 an interpretative decision by the State Court of the meaning 6 to be accorded to the terms of the newly enacted Ordinance as 7 applied to Playtime Theatre ' s threatened operations . In 8 those pleadings , the City has raised a State issue as to the 9 meaning to be given by the State Court to certain terms of 10 the ordinance and whether any of the provisions contained 11 therein , if found to be unconstitutional as applied to the 12 Defendant , can be severed from the remaining valid provisions 13 of the ordinance . The United States Supreme Court has made 14 it clear that this Court has no jurisdiction as to those 15 State issues . See U .S . v . Thirty-Seven Photographs , 402 U. S. 16 363 at 369 , where the Court specifically held at page 369 : 17 " . . .We lack jurisdiction . . . to construe state legislation ." (our emphasis) 18 See also Care Corporation v . Kiddie Care Corporation , 344 F . 19 Supp . 12 (D. C. Del . 1972) (where , in a State Declaratory 20 Judgment action , a plaintiff was threatened with a Federal 21 claim over which the Federal Court had exclusive 22 jurisdiction . It was there held that the Plaintiff could 23 resist removal of his action to a Federal Court) , and Norle 24 v . San Diego Federal Savings & Loan Association , 663 F . 2d 841 25 (9th Cir Sept . 23, 1981 ) (where a mortgage lender ' s removal 26 of a state declaratory action was rejected) . 27 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. Sox S241 OPPOSITION TO REMAND - PAGE 3 RENTON. WASHINOTON 98057 255-8678 I � 1 B. A dismissal would undermine the procedures outlined in Dombrowski v . Pfister for good , State-Federal 2 Court relationships . Even where Federal inter- vention is exercised the State Court should also be 3 allowed to give the ordinance a permissible narrow construction in a non-criminal proceeding . 4 Assuming that the State zoning case is one in which this 5 Federal Court should intervene and should not abstain under 6 the abstention principles enunciated in Younger v . Harris , 7 401 U . S. 37 , 27 L. Ed 2d 669 , 91 S. Ct . 746 ( 1971 ) and Huffman 8 v . Pursue Limited , 420 U . S. 592 , 43 L. Ed 2d 482 , 95 S. Ct . 9 1200 ( 1975) , or the rationale expressed by Justice Stevens ' 10 opinion in Young v . American Mini - Theatres , 427 U . S. 50 , 11 61 , 49 L. Ed 2d 310, 96 S. Ct . 2440 ( 1976) , which opted for a 12 narrowing construction by State Courts , nevertheless the 13 course of action established by the United States Supreme 14 Court in Dombrowski v . Pfister , 380 U . S. 479 , 14 L. Ed 2d 22, 15 85 S. Ct . 1116 ( 1965) would seem to require this Court to 16 remand the declaratory judgment action to the State Court to 17 allow the State Court an opportunity to give the ordinance a 18 narrowing construction . 19 In Dombrowski , the Plaintiff sought declaratory relief 20 and an injunction restraining the defendant from prosecuting 21 or threatening to prosecute the Plaintiff for alleged 22 violation of the Louisiana Subversive Activities Law. Having 23 found harrassment , in granting the Plaintiff' s injunctive 2A relief under their challenge that the statutes were "overly 25 broad and vague regulations of expression" the Supreme Court 26 outlined the following procedural discipline for good 27, State-Federal Court relationships at 490: 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. YS TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTOSECOND ST AT LAW OPPOSITION TO REMAND - PAGE 4 RENTON. WASHINGTON 98057 255.8678 / i 1 "We have already seen that where , as here , prosecutions are actually threatened , this 2 challenge , if not clearly frivolous , will establish the threat of irreparable injury required by 3 traditional doctrines of equity . We believe that in this case the same reasons preclude denial of 4 equitable relief pending an acceptable narrowing construction . In considering whether injunctive 5 relief should be granted , a federal district court should consider a statute as of the time its 6 jurisdiction is invoked , rather than some hypothetical future date . The area of proscribed 7 conduct will be adequately defined and the deterent effect of the statute contained within 8 constitutional limits only by authoritative constructions sufficiently illuminating the 9 ,contours of an otherwise vague prohibition . As we observed in Baggett v . Bullitt , supra , 377 U . S. at 10 378 , 12 L . Ed 2d at 389 , this cannot be satisfactorily done throuugh a series of criminal 11 prosecutions , dealing as they inevitably must with only a narrow portion of the prohibition at any one 12 time , and not contributing materially to articulation of the statutory standard . We believe 13 that those affected by a statute are entitled to be free of the burdens of defending prosecutions , 14 however expeditious , aimed at hammering out the structure of the statute piecemeal , with no 15 likelihood of obviating similar uncertainty for others . Here , no readily apparent construction 16 suggests itself as a vehicle for rehabilitating the statutes in a single prosecution , and appellants 17 are entitled to an injunction . The State must , if it is to invoke the statutes after injunctive 18 relief has been sought , assume the burden of obtaining a permissible 6narrow construction in a 19 noncriminal proceeding before it may seek modification . f the injunction to permit future 20 prosecutions . 21 6. Thirty-seven States , including Louisiana , have 22 adopted the Uniform Declaratory Judgments Act . The Louisiana version , La Civ Proc Code Ann , 1960, Arts 23 1871 -1883 , abolishes the former requirement that there be no other adequate remedy . 24 7 . Our cases indicate that once an acceptable limiting 25 construction is obtained , it may be applied to conduct occurring prior to the construction , see Poulos v . New 26 Hampshire , 345 U . S. 395 , 97 L. Ed 1105 , 73 S. Ct . 766, 36 ALff2d 9$7 ; Cox v . New Hampshire , 312 U . S. 569 , 85 L . Ed 27 1049 , 61 S. Ct . 762, 133 ALR 1396; Winters v . New York , 333 U . S. 507 , 92 L. Ed 840 , 68 S. Ct . 665 , provided such 28 application affords fair warning to the defendants , see BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN Ioo •O. SECOND •T.. P. O. SOX 626 OPPOSITION TO REMAND - PAGE 5 RENTON. WASHINGTON 98037 2s3-8678 1 Lanzetta v . New Jersey , 306 U . S. 451 , 83 L. Ed 888 , 59 S . Ct . 618; cf . lTarrison v . NAACP 360 U. S. 167 , 179 , 3 L. Ed 2 2d 1152 , 1159 , 79 S . Ct . 1025 . " 3 Even though the defendants were enjoined from prosecuting the 4 defendants under the statute as it then read at the time of 5 the lawsuit , the court made it clear in Footnote 6 and 7 that 6 the State should also be allowed to " assume the burden of 7 obtaining a permissible narrowing construction in a 8 non-criminal proceedings" of the State statute . A dismissal 9 of the State action herein would undermine the procedural 10 steps outlined by the high court in its efforts to 11 accommodate both State and Federal interests and to promote 12 "comity" within the State and Federal judicial system . 13 C. The Spirit and Intent of Justice Stevens ' Ruling on the Vagueness Claim in Youngv . American Mini 14 Theater , reinforces the City of Renton ' s claim that the State declaratory judgment should be allowed to 15 go forward to permit "a narrowing construction by the State Court" on the definitional aspects of the 16 ordinance . 17 In Young v . American Mini Theater , supra , Justice 18 Stevens noted at page 58 : 19 "They argue , however , that they cannot determine how much of the described activity may be 20 permissible before the exhibition is ' characterized by an emphasis' on such matter" 21 In reply , Justice Stevens refused to elevate that issue to 22 the status of a substantial federal question . Instead , he 23 pointed out that to the extent that any doubt would 24 thereafter arise , such matter was to be resolved in the State 25 Court where the ordinance would be "readily subject to a 26 narrowing construction by the State Court" . 27 28 BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORNCTS AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN tOORO. SECONO .T.. P. O. BOX 1116 OPPOSITION TO REMAND - PAGE 6 RENTON. WASHINGTON 98057 255.8678 1 A dismissal of the declaratory judgment action would 2 prevent the City of Renton from obtaining the construction of 3 the ordinance by the State Court to which it is entitled 4 under the rationale expressed by Justice Stevens in his 5 opinion in Young . 6 The relief sought by the City of Renton in its State 7 Court complaint is , in effect , a limiting construction and/or 8 severance of any constitutionally defective portions of the 9 ordinance relating to the use which Playtime Theatres has 10 offered to commence within the City of Renton . The Supreme 11 Court in Dombrowski v . Pfister , supra , invited state court 12 limiting construction of statutes -- even though facially 13 unconstitutional -- by means of the declaratory judgment 14 remedy. Furthermore , construction of the Ordinance is beyond 15 the jurisdiction of this Court , U . S . v . Thirty-Seven 16 Photographs , supra , and determinations of severance should be 17 more appropriately left to the judgment of the state court . 18 MetromediaL Inc . v . San Diego , U . S. , 69 L. Ed . 2d 800 , 19 823 ( July 2, 1981 ) . 20 Construction of portions of the Ordinance may be 21 appropriate to save the statute , as the Court is required to 22 do if there are any conceivable set of facts which support 23 the statutes ' constitutionality . Tilton v . Richardson , 403 24 U. S. 672 , 684 , ; In re Marriage of Johnson , 96 Wn . 2d 255 , 25 258 , P.2d (October 15, 1981 ) . Clarification of the 26 terms "used" and "distinguished or characterized by" in the 27 definition of "adult motion picture theatre" may be necessary 28 to limit the application of the Ordinance to conduct BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN &ATTORNEYSLAW AT LAW KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ,Oo •O. •[COND •7.. P. O. BOX •i• R[NTON OPPOSITION TO REMAND - PAGE 7 . 2 N 9BO57 55-8678 1 occurring on a repeated , continuous basis which may be 2 properly characterized as a "course of conduct" of exhibition 3 of films depicting " specified sexual activities" and 4 "specified anatomical areas . " The determination by the State 5 Court of the validity and applicability of the ordinance is 6 the most expeditious vehicle to a determination of the 7 respective rights of the parties under the ordinance , 8 particularily in view of the particular expertise of the 9 State Court in ruling upon land use matters . 10 D. The instant case is a justiciable controversy , or a question of great public interest -of which the 11 State Court will entertain jurisdiction . _ 12 The principle elements of a justiciable controversy 13 under the Washington Declaratory Judgment Act (codified as 14 Chapter 7 . 24 RCW) are as follows : 15 1 . The parties must have existing and genuine , as distinguished from theoretical rights 16 or interests . 17 2. The controversy must be one upon which the judgment of the Court may effectively operate , 18 as distinguished from a debate or argument evoking a purely political , administrative , philosophical 19 or academic conclusion . 20 3. The controversy must be such that a judicial determination will have the force and 21 effect of a final judgment in law or decree in equity upon the rights , status or other legal 22 relationship of one or more of the real parties in interest . 23 4. The proceeding must be genuinely 24 . adversary in character and not a mere debate , but advanced with sufficient militancy to engender a 25 thorough research and analysis of the major issues . 26 State ex rel O ' Connell vs . Dubuque , 68 W. 2d 553 , 558 , 413 27 P . 2d 972 ( 1966 ) . The first element was refined in 28 Diversified Industries vs . Ripley , 82 W. 2d 811 , 815, 514 P . 2d BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYSAT 1 too so. SEC•EcoNlvD sT.. P. O. sox Ste OPPOSITION TO REMAND - PAGE 8 RENTON. WASHINOTON 98057 255.8678 1 137 ( 1973) , by further explanation that the justiciable 2 controversy must be " . . . an actual , present and existing 3 dispute , or the mature seeds of one , as distinguished from a 4 possible , dormant , hypothetical , speculative , or moot 5 disagreement . . . . " 6 Under any reasonable construction of the facts , this 7 Court must agree that the City of Renton and Playtime 8 Theatres are engaged in an actual , present and existing 9 dispute , between parties having genuine , opposing , direct and 10 substantial interests . A judicial declaration by the State 11 Court of the validity and applicability of the ordinance will 12 have the force and effect of a final judgment in law upon the 13 parties . Finally , in view of the considerable time and 14 effort expended by the parties , it must be clear to the Court 15 that these proceedings are genuinely adversary in character 16 and are advanced with sufficient militancy to engender a 17 thorough research and analysis of the major issues . 18 In any event , the issues involved in this litigation are 19 of such great and overriding public moment that the 20 Washington Court will take jurisdiction of this matter to 21 determine the validity- and applicability of the ordinance in 22 question even in the absence of a justiciable controversy . 23 See O' Connell , supra , and In re Elliott , 74 W. 2d 600, 614 , 24 446 P . 2d 347 ( 1968) , where the Court reviewed the genesis of 25 the "great public interest" exception in the case of Huntamer 26 vs . Coe , 41 W. 2d 767 , 246 P. 2d 489 ( 1952) . 27 The rule in Washington regarding the "great public 28 interest" exception is well stated in In re Elliott , supra , BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ,00 so. SECOND Ts ATTO AT LAW sT., P. O. sox eaa OPPOSITION TO REMAND - PAGE 9 RENTON. WASHINGTON 98057 255-8678 1 at 614 . There , the Court quoted Anderson on Actions For 2 Declaratory Judgments , as follows : 3 " A petition for a declaratory judgment is particularly appropriate to determine the 4 constitutionality of a statute when the parties desire , and the public need requires , a speedy 5 determination of the public interest involved therein ." 6 Therefore , the requirement of justiciability is not required 7 . . . if the question submitted to the Court is of sufficient 8 public interest and the need for an immediate answer is of 9 sufficient urgency to induce the Court to exercise its 10 discretion and render a declaratory judgment . " In re 11 Elliott , supra , at 615. 12 Speaking in relation to the question of mootness , the 13 Washington Supreme Court has decided issues , even though 14 moot , " . . . if they present matters of substantial public 15 interest , particularly where final determination of the issue 16 is essential in guiding the conduct of public officials . " 17 DeFunis vs . Odegaard , 84 W. 2d 617, 628, 529 P. 2d 438 ( 1974) . 18 In this case , the public officials of the City of Renton 19 - require judicial guidance in determining the proper course of 20 conduct to be followed in response to the land use offered by 21 Playtime Theatres . 22 RCW 7. 24. 020 requires that a person seeking declaratory 23 relief must have a "right" or "legal relationship" affected 24 by a municipal ordinance in order to obtain a construction of 25 the ordinance . Municipal corporations are within the 26 definition of "person" for the purposes of the Declaratory 27 Judgment Act . RCW 7.24. 130. 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEYS AT LAW 100 SO. SECOND ST.. r. o. BOX 626 OPPOSITION TO REMAND - PAGE 10 RENTON. WASHINGTON 98057 255.8678 1 The City has an obvious interest in the validity and 2 application of its ordinance , and the integrity of its land 3 use planning municipal function which , as this Court is well 4 aware , is one of the prime functions of municipal government 5 under our coordinated system of federalism and home rule 6 under the Optional Municipal Code . Chapter 35A RCW . 7 However , in this case , the City of Renton now has even 8 greater interest in the validity and applicability of its 9 ordinance to the specific land use offered by Playtime 10 Theatres because of the potential exposure to liability for 11 damages under 28 USC Section 1983, Monnel vs . Department of 12 Social Services of New York , 436 U. S. 658, 56 L. Ed 2d 611 , 98 13 S. Ct . 2018 ( 1978) , and for costs and expenses under 28 USC 14 Section 1988 , Owen vs . City of Independence , 445 U. S. 622, 63 15 L . Ed 2d 673 , 100 S . Ct . 1398 ( 1980 ) . This liability 16 establishes the property interest of the City of Renton in a 17 determination of the propriety of the actions which the City 18 has taken to regulate the subject matter of adult 19 entertainment land uses within its jurisdiction . 20 Playtime Theatres cites the case of City of Mishawaka 21 vs . Mohney , 297 N . E . 2d 858 ( Indiana , 1973 ) , for the 22 proposition that it is improper for the City to seek 23 declaratory relief as to validity of its ordinances . That 24 case is easily distinguishable from the present . In that 25 case the Court was uncertain whether the Defendant was 26 actually the owner of the book store and theater over which 27 the City was attempting to assert jurisdiction to regulate 28 the sale , distribution and exhibition of pornographic BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. ATTORN[T• AT LAW TO DISMISS AND IN REPLY TO MEMORANDUM IN IOO.O. •CCOND •T.. P. O. BOX 626 OPPOSITION TO REMAND - PAGE 11 RCNTON. WA•HINGTON 98057 255-8878 Air 1 materials . Therefore , the Court found that the City ' s fears 2 of a violation of their ordinance by the owner of the book 3 store were purely hypothetical , and the alleged controversy 4 was more theoretical than actual . In this case , Playtime 5 Theatres has actually offered to exhibit adult motion picture 6 film fare within the City of Renton at a location which falls 7 within the prohibitions of Ordinance No . 3526. Therefore , 8 the dispute could be no more proper for determination under 9 the Washington Declaratory Judgment Act . 10 E. The "Priority Rule" does not require dismissal of the State Court action because there is no identity 11 of relief requested in the State and Federal actions . 12 As correctly stated by Playtime Theatres , the invocation 13 of the "Priority Rule" requires identify of subject matter , 14 parties and relief. As set forth more particularly above , 15 the relief requested by Playtime Theatres in the Federal 16 Court action cannot be identical to the relief requested by 17 the City of Renton in the State Court action because of this 18 Court ' s lack of jurisdiction to construe legislation and/or 19 sever portions thereof found to be unconstitional . 20 F . Conclusion . 21 22 The motion to dismiss the State Court action filed herein by Playtime Theatres should be denied , and the State 23 Court action should be remanded to the King County Superior 24 25 Court from whence it was removed , with the award of costs and 26 27 28 BRIEF IN OPP. TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTO AT LAW 100 fO. •[CONO Tf/T., P. O. !O]( 426 OPPOSITION TO REMAND - PAGE 12 RENTON, WASHINGTON 98057 255-8678 . 1 attorneys fees to the City of Renton pursuant to 28 U . S. C . 2 1447 . 3 4 Res fully submitted , 5 6 DANIEL KELLOGG 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRIEF IN OPP . TO PLAYTIME THEATRES MOTION WARREN & KELLOGG. P.S. TO DISMISS AND IN REPLY TO MEMORANDUM IN ATTORNEY, AT LAW f0040. SECOND ET.. P. 0. BOX 426 OPPOSITION TO REMAND — PAGE 13 RENTON. WASHINGTON 98057 255-8678 uvula 1 Magistrate Sweigert 2 Judge McGovern Date of Hearing : 3 May 21 , 1982 4 6 I.LJAY 198Z 7 CITY OF RENT. ON 8 UNITED STATES DISTRICT COURT OFFICE FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 Washington corporation, ) et al, ) 12 ) NO . C82-59M Plaintiff, ) 13 ) vs ) 14 ) THE CITY OF RENTON, et al, ) 15 ) Defendants . ) 16 ) ) 17 THE CITY OF RENTON, a ) municipal corporation, ) NO . C82-263 18 ) Plaintiff, ) MEMORANDUM IN SUPPORT OF 19 ) DEFENDANT' S RENEWED MOTION TO vs ) DISMISS PLAINTIFFS ' AMENDED AND 20 ) SUPPLEMENTAL COMPLAINT FOR PLAYTIME THEATRES, INC. , a ) PRELIMINARY AND PERMANENT 21 Washington corporation, ) INJUNCTION PURSUANT TO FRCP 12(b) (6) et al, ) 22 ) Defendants. ) 23 ) 24 I . STATEMENT OF FACTS 25 City of Renton Ordinance No . 3526 was enacted by the 26 City Council on April 13, 1981 and became effective thirty (30) 27 days after its publication on May 15, 1981 . This suit was commenced 28 in early 1982 after the Plaintiffs purchased two theaters within MEMORAUNDUM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MOTION TO DISMISS SECONDETB AT LAW f00!O, ECOND tT.. P. O. BOX 626 P . 1 RENTON, WASHINGTON 98057 255-8678 1 the City of Renton which are clearly within the proscribed 2 distance from which Ordinance No . 3526 provides for separation 3 of adult motion picture theaters (as described by the 4 ordinance) from residential zones and uses, churches, and 5 schools . 6 On May 3, 1982, the City Council of the City of Renton 7 adopted, and the Mayor approved Ordinance No . 3629 which 8 amended in several areas the provisions of Ordinance No . 3526 . 9 The principal amendments are as follows : 10 a . Findings of fact which the City Council found to be 11 true as of its adoption of Ordinance No . 3526 on April 13, 12 1982, were reduced to writing. 13 b. Findings of fact as to the facts which the City Council 14 found to be true as of the adoption of Ordinance No . 3629 on 15 May 3 , 1982, were adopted. 16 c . The word "used" is further defined to be a continuing 17 course of conduct of exhibiting "specific sexual activities" 18 and "specified anatomical areas" in a manner which appeals to 19 a prurient interest. 20 d. The amending ordinance provides that uses which are 21 in violation of the provisions of Ordinance No . 3526 as amended 22 are declared to be a public nuisance and shall be abated by 23 civil action filed by the City Attorney and not by criminal 24 enforcement proceedings . 25 e. Ordinance No . 3526 provides that adult motion picture 26 theaters were to be separated from schools by a distance of 27 one mile. Ordinance No . 3629 reduces that distance to 1000 28 feet . MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. ATTRENEWED MOTION TO DISMISSOND[Tf AT LAW � f00 SO. SECOND ST.. P. O. 00% 626 RENTON. WASHINGTON 98057 P. 2 255-8678 1 f. Ordinance No. 3526 contained no severability clause . 2 Ordinance No . 3629 adds such a severability clause to 3 Ordinance No . 3526. 4 Because of the importance of the amendments to Ordinance No . 5 3526, the ordinance which is attacked by the Plaintiffs, the 6 Defendants deem it essential to renew their motion to dismiss 7 previously filed herein and submitted for decision by the court, 8 and in particular to renew their motion to dismiss Plaintiff ' s 9 claim for injunctive relief which is founded on 28 U. S . C . , Section 10 2202 and 42 U. S. C. , Section 1983. 11 II. LEGAL ARGUMENTS 12 It is the contention of the Defendants that the amendment 13 of Ordinance No. 3526 by the adoption- of Ordinance No . 3629 cures 14 any possible claim of constitutional defect by the Plaintiffs, 15 thereby ousting this court of jurisdiction to grant injunctive 16 relief as requested by the Plaintiffs for the reason that there 17 is no injunctive relief which can be granted. The application for 18 injunction is addressed to the sound discretion of the court . 19 U. S . v. Corrick, 298 U. S. 435, 56 S. Ct 829, 80 L. Ed. 1263 (1936) ; 20 Ross-Whitney Corp. vs . Smith Kline & French Lab, 207 F . 2d 190 21 - — (9th Cir . 1953) . The decision of the court will not he set aside 22 upon appeal unless clearly erroneous as a matter of law or the 23 result of an abuse of discretion. U. S . v. Corrick, supra . 24 The purpose of the preliminary injunction requested is to 25 preserve the status quo pending trial of the matter on the 26 merits, and " . . . should not be granted except in rare instances 27 in which the facts or law are clearly in favor of the moving 28 MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 62S P. 3 RENTON. WASHINGTON 98057 255-8878 1 party. " Miami Beach Federal Savings & Loan Association v . 2 Callandar , 256 F. 2d. 410 (5th Cir . 1958) . The preliminary 3 injunction is not granted as a matter of right, even if the denial 4 of the application will result in irreparable damage to the 5 Plaintiff . Yakus v. U. S. , 321 U. S . 414, 440, 64 S . Ct . 660, 6 88 L. Ed . 834 (1944) . 7 The injunctive relief may be granted, in the discretion 8 of the court, if it appears likely that the Plaintiff will g prevail at trial on the merits, that the Plaintiff will 10 suffer irreparable harm if the application is denied, and if 11 the damage to the Plaintiff in the event of the denial of the 12 application plainly outweighs the harm to the Defendant. Ross_ 13 Whitney Corp v. Smith Kline & French Lab, supra . 14 As amended by Ordinance No. 3629, the provisions of City of 15 Renton Ordinance No . 3526 are , beyond any question, 16 constitutional . Therefore, the Plaintiff ' s application for 17 injunctive relief will unequivocably be denied, both at the 18 preliminary injunction phase and at trial upon their application 19 for injunctive relief both under 28 U. S . C. , Section 2202 and 20 42 U. S.C . , Section 1983, for the reason at least that it is 21 not likely that the Plaintiff will prevail at trial on the 22 merits . Furthermore, Plaintiff can make no contention that 23 it is sustaining irreparable harm since the amending ordinance 24 provides that the ordinance shall be enforced by civil action 25 alone, and not by criminal remedies . Being unable to show any 26 irreparable harm suffered by Plaintiff, there is then no need 27 for balancing of the rights of the parties under the third 28 provision of the test for issuance of injunctive relief . MEMORANDUM IN SUPPORT OF WARREN & KELLOGG. P.S. RENEWED MOTION TO DISMISS ATTORNEY• AT LAW 100 SO. SECOND ST., P. O. SOX •26 P.4 RENTON, WASHINOTON 98057 255-8878 1 Therefore, there being no injunctive relief which this 2 court may grant, the Defendants are entitled to a dismissal 3 of the cause of action stated by the Plaintiffs for such 4 injunctive relief pursuant to 12(b) (6) of the Federal Rules 5 of Civil Procedure. 6 DATED: May 4, 1982 7 Re ully submitted, 8 / 9 < Daniel Kellogg 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM IN SUPPORT OF RENEWED MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEY! AT LAW P 100 SO. SECOND ST.. P. O. SOX 1125 RENTON. WASHINGTON 98057 2SS_RR7R • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 Washington corporation, and KUKIO ) BAY PROPERTIES , INC . , a Washington ) 12 corporation, ) ) 13 Plaintiffs ) ) NO. C82-59M 14 vs ) 15 THE CITY OF RENTON, ), DEFENDANTS' ANSWER TO PLAINTIFFS' AMENDED AND 16 and SUPPLEMENTAL COMPLAINT FOR THE HONORABLE BARBARA Y. SHINPOCH, ) DECLARATORY JUDGMENT AND 17 as Mayor of the City of Renton, ) PRELIMINARY AND PERMANENT INJUNCTION 18 ) and ) 19 ) EARL CLYMER, ROBERT HUGHES , NANCY ) 20 MATHEWS , JOHN REED, RANDY ROCKHILL, ) RICHARD STREDICKE AND TOM TRIMM, ) 21 as members of the City Council of ) the City of Renton; serve on: ) 22 DELORES H. MEAD, City Clerk, ) ) 23 and ) ) 24 JIM BOURASA, as acting Chief of ) Police of the City of Renton, ) 25 ) Defendants, jointly ) 26 and severally, in ) their representative ) 27 capacities only. ) _ ) 28 DEFENDANTS ' ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P . 1 100 SO. SECOND ST., P. O. BOX 62S RENTON. WASHINGTON 98057 255-8678 1 THE CITY OF RENTON, ) ) 2 Plaintiff, ) ) 3 vs ) NO . C82-263R ) 4 PLAYTIME THEATRES, INC. , a ) Washington corporation and ) 5 KUKIO BAY PROPERTIES , INC . , ) a Washington corporation, ) 6 ) Defendants . ) 7 ) 8 COME NOW the Defendants , City of Renton, a municipal 9 corporation, Barbara Y. Shinpoch as Mayor of the City of Renton, 10 Earl Clymer, Robert Hughes , Nancy Mathews , John Reed, Randy 11 Rockhill , Richard Stredicke and Tom Trimm, as i..embers of the -2 City Council of the City of Renton, and Jim Bo--rasa, as acting 13 Chief of Police of the City of Renton, herein, and in answer 14 to the complaint , admit , deny and allege as follows : 15 I . JURISDICTION 16 1. The Defendants deny the jurisdiction of this Court. 17 Plaintiffs ' Amended and Supplemental Complaint prays for relief 18 enjoining the Defendants from enforcement of City of Renton 19 Ordinance No. 3526 on the grounds that the ordinance is 20 unconstitutional as written and/or as threatened to be applied 21 to Plaintiffs . Plaintiffs further pray for declaratory judgment 22 to determine the constitutionality of City of Renton Ordinance 2`' 3526. Defendants affirmatively allege that City of Renton 24 Ordinance No. 3526 has been amended by City of Renton Ordinance 25 No. 3629 , copy of which is attached hereto as Attachment "A" 26 and the contents of which are incorporated herein by reference , 27 which ordinance was adopted by the City Council of the City of 28 Renton and approved by the Mayor on May 3, 1982 , and by the WARREN & KELLOGG. P.S. DEFENDANTS ANSWER ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 626 RENTON, WASHINGTON 98057 P 9 255-8678 1 terms thereof became effective immediately upon its passage 2 and approval by the Mayor. City of Renton Ordinance No . 3526 , 3 as amended, and City of Renton Ordinance No . 3629 are in full 4 force and effect and are applicable to the theater operations 5 alleged by the Plaintiff in its Amended and Supplemental 6 Complaint. The ordinances are facially constitutional . 7 Young v. American Mini Theatre, Inc . , et al . 427 U. S . 50, 96 8 S . Ct. 2440, 49 L. Ed. 2d. 310 (1976) . This Court should abstain 9 from any consideration of this lawsuit . The same declaratory 10 judgment action which is pleaded herein can be brought under 11 state law by virtue, of the Revised Code of Washington, Chapter 12 7. 24. There has b(.en no showing by the Plaintiffs that the 13 state procedural law is inadequate to allow full litigation of 14 any constitutional claim or that the state courts will not apply 15 appropriate federal principles of constitutional law in such a 16 declaratory judgment action. Allan v. McCurry, 449 U. S . 90, 17 101 S . Ct. 441, 66 L.Ed2d 308 (1980) ; Parratt v. Taylor, U. S. 18 101 S. Ct. , 68 L. Ed. 2d 420 (1981) . 19 2 . In answering paragraph 2 , Defendants deny that 20 jurisdiction is conferred upon this Court on the basis of 28 21 U. S .C.A. §1343 (3) , in view of the fact that there has been no 22 deprivation under color of any state law, or statute, or 23 ordinance, of the privileges or immunities secured by the 24 Constitution of the United States with reference to the cause 25 of action pleaded by the Plaintiffs . In addition, the Plaintiffs 26 inappropriately plead a violation of 42 U. S .C.A. §1983 , in that 27 neither Renton Ordinance No. 3526 nor Renton Ordinance No . 3629 28 DEFENDANTS. ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P . 3 f00 SO. SECOND ST., P. O. BOX 628 RENTON. WASHINGTON 98057 255-8678 ' 1 have, as yet, been applied to the Plaintiffs and thus no nerson 2 under color of any statute or ordinance of any state has caused 3 the Plaintiffs to be subjected to the deprivation of any rights , 4 privileges or immunities secured by the Constitution. Therefore, 5 this portion of the Plaintiffs' Complaint should be stricken. 6 See Hoffman Estates v. Flioside, Hoffman Estates, U. S . , 7 102 S .Ct. , 71 L. Ed. 2d 362 at 375 , footnote 21 and 22 8 (March 3, 1982) . 9 4. Defendants admit that if the Court has jurisdiction 10 under 28 U. S . C.A. . §2201, the Court may only render a declaratory 11 judgment regarding the city ordinances because Defendants 12 represent that they will obey the judgment of the Court. Therefore, 13 entry of an injunction would be inappropriate. 14 5 . Any other matters pleaded in this particular section 15 of the complaint are denied by virtue of the fact that the 16 Defendants are without information and, therefore , are unable 17 to form a belief with respect to the same. 18 II PARTIES 19 6. In answering the allegations of paragraph 3 of the 20 complaint, the Defendants are without information and, therefore, 21 are unable to form a belief and deny the same. 22 7 . In answering the allegations of paragraph 4, admit 23 the same. 24 8. In answering the allegations of paragraph 5 , admit 25 the same. 26 9. In answering the allegations of paragraph 6 , the 27 Defendants admit that Earl Clymer, Robert Hughes , John Reed, 28 Randy Rockhill, Richard Stredicke and Tom Tricorn are members WARREN & KELLOGG. P.S. DEFENDANTS ANSWER ATTORNEYS AT LAW foo SO. SECOND ST., P. O. BOX ate RENTON. WASHINGTON 98057 P. 4 255-8878 ' 1 of the City Council of the City of Renton who enacted City of 2 Renton Ordinance No. 3526 . In addition, Charles Shane was a 3 member of the City Council of the City of Renton on the date 4 that City of Renton Ordinance No . 3526 was enacted. Defendants 5 allege that Earl Clymer, Robert Hughes, John Reed, Randy 6 Rockhill , Richard Stredicke, Tom Trimm and Nancy Mathews are 7 presently members of the City Council of the City of Renton and 8 who enacted City of Renton Ordinance No . 3629 as heretofore set forth. Defendants allege that the enactment of City of 10 Renton Ordinances No. 3526 and No . 3629 was a part of the 11 legislative function of the City Council of the City of Renton, 12 but deny that the ordinances as enacted are facially 13 unconstitutional . 14 10. In answer to the allegations of paragraph 8, the 15 Defendants admit that on the date of filing of the Amended and 16 Supplemental Complaint, that Defendant Jim Bourasa was Acting 17 Chief of Police of the City of Renton. Defendants allege that 18 since the filing of Plaintiffs ' Amended and Supplemental 19 Complaint, Allan L. Wallis was appointed as Chief of Police of 20 the City of Renton who is primarily responsible for seeing to 21 the enforcement of the City of Renton ordinances , civil , 22 criminal and quasi-criminal in nature. In that connection, 23 Defendants affirmatively allege that Section II of Ordinance 24 No . 3629 provides in part as follows : 25 SECTION II : Existing Section 4-735 of Title IV 26 (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinance of the City of Renton" is 27 hereby amended by the following subsections : 28 (C) Violation of the use provisions of this section is declared to be a public nuisance per se WARREN & KELLOGG. P.S. DEFENDANTS ANSWER ATTORNEYS AT LAW 100 SO. SECOND ST.. P. O. SOX 626 P . 5 RENTON, WASHINGTON 98057 255-8678 1 which shall be abated by the City Attorney by way of civil abatement procedures only, and not by 2 criminal prosecution. 3 (D) Nothing in this section is intended to authorize, legalize or permit the establishment , 4 operation or maintenance of any business , building or use which violates any City of Renton ordinance 5 or statute of the State of Washington regarding public nuisances , sexual conduct , lewdness , or obscene 6 or harmful matter or the exhibition of public display thereof. 7 8 11 . In answering the allegations of paragraph 9 , the 9 Defendants deny the same. 10 11 III FACTUAL ALLEGATIONS 12 12. In answering the allegations of paragraph 10, the 13 Defendants deny the same. 14 13 . In answering the allegations of paragraph 11 , 15 the Defendants admit the same and, in that connection, 16 affirmatively allege that on February 19 , 1982 , the Defendant 17 City of Renton filed a civil action in King County Superior 18 Court seeking a declaratory judgment that Ordinance 3526 is 19 constitutional as applied to the Plaintiffs ' proposed use 20 of the Renton and Roxy Theaters . 21 14. In answering the allegations of paragraph 12, the 22 Defendants admit the same. 23 15. In answering the allegations of paragraph 13, the 24 Defendants deny the same. 25 16. In answering the allegations of paragraph. 14, 26 the Defendants deny the same. 27 17 . In answering the allegations of paragraph 15 , the 28 Defendants admit the same. DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW f00 SO. SECOND ST.. ►. O. SOX 626 P . 6 RENTON. WASHINGTON 98087 255-8678 1 18 . In answering the allegations of paragraph 16 , the 2 Defendants deny the same and, in that connection, affirmatively 3 allege that prior to the filing of said complaint the Plaintiffs 4 had been informed in sworn testimony before this court that the 5 City of Renton' s interpretation of its Zoning Code was that an 6 adult motion picture theater was a permitted use within the 7 City of Renton except to the extent proscribed by ordinance . 8 Defendants allege further that the same information would have 9 been supplied to the Plaintiffs had they availed themselves of 10 the zoning administrative process which is administered by the 11 City of Renton by inquiry of the City of Renton. 12 19. In answering the allegations of paragraph 17 and 20 , 13 the Defendants deny that a special permit, conditional use 14 permit , variance or other permit is required under Renton 15 Ordinance 3526 or Renton Ordinance 3629 . Therefore, paragraphs 16 17 and 20 of the Plaintiffs ' Complaint should be stricken. 17 20. In answering the allegations of paragraphs 18 and 19 , 18 the Defendants deny that application of Renton Ordinance No . 19 3526 or Renton Ordinance No. 3629 invoke any discretion of a 20 Hearing Examiner or Board of Adjustment and/or the City Council . 21 Therefore, paragraphs 18 and 19 of the Plaintiffs ' Complaint 22 should be stricken. 23 IV BASIS IN LAW FOR RELIEF 24 — 25 21 . In answering the allegations of paragraph 21 , the 26 Defendants are without information and, therefore, are unable 27 to form a belief and deny the allegations therein. 28 22 . In answering the allegations of paragraph 22, the DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P 7 too So. SECOND ST.. P. O. BOX S26 RENTON. WASHINGTON 98057 255-8678 1 Defendants are without information and, therefore, are unable 2 to form a belief and deny the allegations therein. 3 23. In answering the allegations of paragraph 23 , the 4 Defendants deny each and every allegation contained therein. 5 24. In answering the allegations of paragraph 24, the 6 Defendants deny each and every allegation contained therein. 7 25 . In answering the allegations of r-aragraph 25 , the 8 Defendants deny each and every allegation contained therein. 9 26 . In answering the allegations of paragraph 26, the 10 Defendants deny that Renton Ordinance No . 3526 or Renton 11 Ordinance No . 3629 require the issuan,e of a special permit, 12 conditional use permit , variance or c.:her permit . Therefore, 13 paragraph 26 of the Complaint should be stricken. 14 15 V RELIEF SOUGHT 16 27 . In answering the allegations of paragraphs 27 and 28, 17 the Defendants deny the Plaintiffs are entitled to a declaratory 18 judgment. Defendants allege that this Court should abstain 19 in favor of the state courts deciding this issue, rather than 20 declaring the statute to be unconstitutional . In addition, it is 21 inappropriate that the Court permanently enjoin enforcement of the 22 statute by the Defendants. Eleventh Amendment. Huffman v. Pursue , 23 Ltd. 420 U. S. 592, Samuels v. Mackell , 401 U. S. 66 at 72 . 24 With respect specifically to prayer number 5 in paragraph 28 25 of the complaint, the Defendants move to strike the request for 26 reasonable attorney' s fees pursuant to 42 U. S. C.A. §1988 , in 27 view of the fact that such application must be based upon an 28 action under 42 U. S .C.A. §1983, which is inappropriate in this DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO. SECOND ST., P. O. BOX 62S P. 8 RENTON, WASHINGTON 98057 253-8678 1 case in view of the fact that the Plaintiffs have not , under 2 color of any statute or ordinance of any state, been subjected 3 to the deprivation of any rights, privileges or immunities 4 secured by the constitution and the laws, since no actions 5 have been brought against Plaintiffs under Renton Ordinance No . 6 3526 or Renton Ordinance No . 3629 . Further , Defendants allege 7 that they' are entitled to an award of their reasonable 8 attorney' s fees incurred in defense of this action pursuant 9 to 42 U. S . C.A. §1988 and gener&mil equitable principles , in view 10 of the fact that the subject matters which the Plaintiffs 11 would have exhibited at the Renton and Roxy Theaters under 12 the classification of "adult m tion picture films" during the 13 period in question are "obscene motion picture films" under 14 Washington State Law and do not involve constitutionally 15 protected speech. In filing this complaint , the Plaintiffs 16 acted in bad faith, vexatiously, wantonly and for oppresive 17 reasons . Vaughn v. Atkinson, 369 U. S . 527 , 8 L. Ed. 2d 88, 18 Rich Co . , Inc. v. United States for the Use of Industrial 19 Lumber Co . , Inc. 417 U. S. 116, 129, 40 L. Ed. 2d 703 , 714. 20 21 VI DEFENSES 22 By way of further answer, and as matters of affirmative 23 defense, the Defendants allege as follows : 24 28 . Defendants allege as a defense that this Court has 25 no jurisdiction to hear the cause on the merits . Eleventh 26 Amendment. 27 29. Defendants allege as a defense, that this court 28 should abstain from a determination in this matter in the interests DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW tOO SO. SECOND ST.. P. O. BOX 626 P. 9 RENTON. WASHINGTON 98057 255-8678 1 of comity and further that the exceptions of Younger v. Harris , 2 401 U. S . 37 , 27 L. Ed. 2d 669 , 91 S . Ct. 746 (1971) , and Huffman v. 3 Pursue, Ltd. , 420 U. S . 592, 43 L. Ed. 2d 482, 95 S . Ct . 1200 (1975) , 4 do not warrant a determination on the merits . 5 30 . Defendants allege , as a defense, that this Court 6 should determine that Renton Ordinance No . 3526 and Renton 7 Ordinance No . 3629 are constitutional on their face, and that 8 the state courts may decide their constutional application as 9 provided for by Village of Hoffman Estates v. Flipside, Hoffman 10 Estates , U. S. , 71 L.Ed. 2d 362 , 102 S. Ct. (1982) . 11 31 Defendants allege, as a defense, that this Court should 12 determine that the motion picture films v.lich the Plaintiffs would 13 have exhibited at the Renton Theater and Roxy Theater during 14 the period in question under the classification of "adult motion 15 picture films" are "obscene motion picture films" under Washington 16 law and, as such, do not involve constitutionally protected free 17 speech. 18 32. Defendants allege, as a defense that Plaintiff Kukio 19 Bay Properties, Inc . , has no interest in the subject matter of 20 this lawsuit sufficient to constitute a "case or controversy" 21 under Article III, U. S. Constitution, and further , that Kukio 22 Bay Properties, Inc . , has not sustained and will not in the 23 future sustain any damage by reason of the alleged 24 unconstitutionality of the ordinances complained of. 25 VIII PRAYER 26 — WHEREFORE, Defendants having fully answered the complaint 27 of Plaintiffs on file herein, said Defendant pray that : 28 DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P . 10 f00 SO. SECOND ST.. P. O. BOX 626 RENTON, WASHINGTON 98057 255-8878 1 A. The Plaintiffs' complaint be dismissed with prejudice; 2 B. Plaintiffs' request for a permanent injunction and 3 declaratory judgment be denied; 4 C. That Defendants be awarded their costs herein, 5 including a reasonable attorney' s fee; and 6 D. That the court grant such other relief as it deems 7 proper. 8 9 DATED this day of June, 1982. 10 11 12 awrence J . rren, Attorney for Defendants 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS ANSWER WARREN & KELLOGG. P.S. ATTORNEYS AT LAW P . 11 f00 SO. SECOND ST., P. O. SOX 626 RENTON. WASHINGTON 98057 235-8678 M•?AGISTHA_TE PHILIP K. SWEIGERT 1 2 • 4 SEP 211982 5 VII. *-PEN ,a ( 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) Washington corporation, et al . , ) 11 ) NO. C82-59M Plaintiffs, ) 12 vs . ) CERTIFICATE OF SERVICE 13 THE CITY OF RENTON, et al. , ) 14 Defendants . ) 15 I certify that I served a copy of Plaintiffs ' Additional 16 Authorities In Support Of Plaintiff ' s Motion for a Preliminary 17 Injunction on the parties to this action on September 16 , 1982, by 18 mailing copies , postage prepaid , to them at the following 19 addresses : 20 Daniel Kellogg 21 Warren & Kellogg P.O. Box 626 22 Renton , Washington 96057 23 I certify under penalty of perjury under the laws of the State of 24 Washington that the foregoing is taut, and correct . 25 4/2 ( 26 ;Jac, H. Burns Burns &Meyer. P.S. 10940 N.E. 33rd Place Suite 107 Certificate of Service Bellevue, WA.98004 (206)828-3636 1 . a. Court' s Decision re Temporary Restraining Order ; 2 b . Temporary Restraining Order ; 3 c . Consent Order Extending Temporary Restraining 4 Order ; and 5 d. Amended Ordinance No . 3215 of the City of Memphis . 6 Respectfully submitted , 7 BURNS & MEYER , P. S. 8 BY 9 ack h. Burns 10 Attorney for Plaintiffs 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Additional Authorities . . . Burns &Meyer: P.S. Page 2 10940 N.E. 33rd Place Suite 107 Bellevue,WA.98004 (206)828-3636 q ' _ `. k 44 d ak it. i "��• , IL;ASIARDANES v. CITY OF (;Ai.VESTO'N 120.E 4 . ' Cite■.axiFse tics crc421 .� is little more attractive.. Not only did the an adult theater, hroii ht an action under settlement s findings the Ssibility of ap- the Civil Ri{�ht_: Art and under the Fircl i a' peal from the indinr of liability, hut the am) Fourteenth Amendments challenging a Alt reclusion may make it city zonrnt' ordinance which restricted the subsequent-use of p r more difficult to settle cases in this IKrs- operation of adult theater+ to certain ' >Y n • defined are:LS. The United States District , . K,, laic ( curt for the Southern District of Texas, 1xs " w• ` .. supra,. § 4433, at 31R h' • 1 o Wright & Miller, / Hugh Gibson, J., 514 1'.Supl,. 975 held that f i (footnote omitted). former owner lacked standing to challenge Wt,Yt r - r Finally, the majority's holding iv unfair acknowledges, . certain provisions of the ordinance and up to Bintliff. AA the majority g' held the others a{*ainst constitutional at •`� ;�t the primary reason that Bintliff settled tack, and •former owner appealed. The • •,':;y ,- �;.3t Cosma4teral was to avoid the applicationoCourt of Appeals, Jerre S. Williams,'Circuit • of collateral estoppel. He 'relied on well- Judge, held that: (1) terms of ordinance �" � to settle. ,, settled rules of law in deciding were not vague-as applied to former owner _ .He gave up his right to appeal, the exercise and thus facial challenge to ordinance had ww� ,,a6 of_which would either have delayed the trial to fail; (2) former owner's contention that 'l4 ` ;'' ' reverted; for all practical } . inthis -vise or P ordinanco Was:vague as applied to other , ; purposes, the use d collateral estoppel in theater operators failed to warrant third- ' t , -. this case. . He.saved the judicial system a partystanding; (3) former owner lacked s " , certain appeal and a possible retrial and • standing in his capacity as moviegoer; (4) : r y` second appeal; and saved his adversary ad- . because ordinance was far more restrictive - ditional time and expense in_collecting dam-ages. Nevertheless, today the majority dis than necessary to achieve purported goals, it violated First Amendment; (5) former a:� • regards his reliance interests and owner lacked standing to attack ordinance's benefit of his deprives him of the primary permit requirement; and (6)ordinance's ab- solute ,2 ...4'''I 4T +x` F - bargain. Tne majority says that the rules solute proscription of adult theater street of collateral estoppel are based on 'fair- Y, advertising was unconstitutional. • -• ness," but I see nothing fair about the a'( • 7 Affirmed in part, reversed in part, and majority's decision. .; remanded. „ g, k C.:„.....,..) aurerasrsrr 1. Constitutional Law �82(4) a }Persons • who must conform conduct to *' ' ; ' ''• .: +. r) jRsa_- law are entitled to. fair notice of what is ' ',r-....� �,,' "' T •, ^;t . ' .. . ..v -- hR permitted and proscri}xci. 8=47 °�� # c ` -� 2. Statutes '"+ ' k.•s t,rra,y George BASIARDANES, ellant, I r''�' is "facially vague" if its terms are Plaintiff App so loo c and obscure that they cannot tx axx �� '£' • ayr� � z,� v. clearly applied in any context. U S.C-A. � y CITI' OF GALVESTON, Const.Amend. 14. is Defendant-Appellee. See publication Words :+nd Phrases t� " "rr. ,�xF' for other judici:+I constructions and ;r �sa � I No. 81-2239. definitions. ' „CIi' r�Ti"�s" ;_ United States Fift Court of Appeals, 3. Zoning and I'Ixnnin{{ c�7G � r , 'Perms of city's 7onin}, ordinance, which Fifth Circuit "". restricted operation of adult theaters to ccr- `Aug. 19, 19g2. a were not vague as n1'- .. 1 ! ^' *� ta+n defined area. , p4 .. 1 • plied to former I,,,ddin[ owner, who had ,. -a ,. t,2 * ' `�" s.. Former building owner, who had sought to convert i tit of building into r y �•,� -z' rght to convert part of the building into adult thcat�r, ants thus former owner's a r�, • *p, '46't 'z r- a ... a . -`i C .0.•.+..�..•, t d,�.-, .,{.-'S tr.... •--•..t. ... ..'_ _ " 'fit ;•r•r '21:- &-. .fi ''' M,`.rw-.F.� > 682 FEDERAL. REPORTER, 2d ll�i r• r1201 r cial challenge to ordinance lailed,-.where 9. Zoning and Planning e=.-571 • trial testimony established that he knew Former building owner, who had that theater would show adult movies with- sought to convert part of building into •• • in meaning of ordinance_and he conceded • adult theater, lacked standing to challenge / , it that his building lay within two blocks of a city's adult theater ordinance for vagueness - G cluirch and within 500 fuel of nearly a in hin capacity an movier•o r where record -d dozen bars. U.S.C.A.Const_Amends. 1, 14. failed to disclose existence of willing speak- il er affected by ordinance other than former . ', • • 'i. �42.2(1) owner. ,1.J.S.C.A.Const.Amends. 1, 14. t 4. Constitutional Ie�' _ Ordinarily, • litigant to whom st�itute 10 Cons+titutional lrsw a '42.1(1) • y clearly. appl• ies lacks standing to argue that Recipientsof protected communication statute is vague as to. others. : U.S.C.A. have standing to challenge limitations on ' i Const_Amend. 14. exercise of speech only if there is speaker 5. Constitutional Law a-422(I) who wishes to express himself or herself. ._ i Contention of former building-owner, U.S.C-A.Const.A mend. 1. • who had sought to convert part of building 11. Zoning and Planning a=-571 , into adult theater, that city's zoning ordi- Out of pocket injury to former building k • Hance restricting operation of adult thea owner, who claimed monetary damages be-- ►"Y k ters to certain defined areas was vague as cause zoning ordinance restricting build- i applied to other theater operators failed to ing's use as adult theater denied him lease - warrant.third-party standing where. 9iere revenues while he owned building, sufficed was no real and substantial ambigty' in.. to confer,atanding-upon him to challenge . . -application of ordinance to theaters show- ordinance under First Amendment_ :U.S.C; :? .' ing adult films on a _ regular basis,".state .A.Const_Amend_ L- • _ { • court could clarify_"regular" without insu- 4 ✓able difficulty, and other challenged -12`Zoning,and Planning a=602 } Pe - _ Ordinarily, zoning .regulation -will .be*'-.. '• • terms had such narrow areas of,vague ap sustained.if it is rationally related to legiti • Plicatdon that there was no pressing need to -- adjudicateties not before mate state interest and does not extinguish ` ' . rights of par r hurt U.S.CA.ConstAmends 1, 14 all practicable uses of property. , r - - 13. Constitutional Law-�90.1(6) -- -. N• • 6. Constitutional Law.s=90(1) ._ -- - - _-- , :)- _ _ City's zoning ordinance; which restrict-- -,- : Amendment- protects: right to ed :operation-'of adult. theaters'in certain s;. } _ :ham'$a well: 10 speak_i'U S.CAConst define• d areas, implicated First Amendment t ._Amend 1 - `� ,' t W'= ,- ti rights where'ordinance was not limited to _ • -, r - -•time :movie theaters and bookstores,catering—,_to 7 t '7 Constitutional Law 4=90(1) .. 1.- :-_ 1. .:, ,r, .: . �. those with appetite _for'obscene materials ¢ • �, ,__ 1- -:Ordinanc._; •., silences-_ . --g . --esker. but, rather, regulated to`the point of ban-` ', = _ j:a�Iso works.-constitutional 'injury: sit: fling theaters•regularly'shoµ_ing any 'film. t- h Er: >U.S.C.A-Const_Amend 1 -•.r•.- that,•under Texas • law,.rnuld not be viewed_ :g l_ • 3 by minors Who- were unaccompanied -by.' ; 8. Constitutional law_�422(1) adult- V.T.C-A., Penal Code 432t; U S C: Virginia State $c>anJ• 's holding on con - °r=• A.Const.Amend. 1 ;:1 - sumer standing, upholding right of consum- - .-- �90.1(1). -_. 'y° g b 14: Constitutional Law •• -�� - _''~ ;ers 'to;chahen e Vir nnia,statutc_that re- , _- . strained freedom of pharmacists to.adver - _ State a power to protect children} , tise.pnces`of prescription drugs, may not be against exposure to pornography is consider•` • r ix� regulate!:• s . t., r - limited to situations in .which speaker is erably broader than its lxiwer to regu Y • "' prevented from raising First Amendment material produced with and consumed by' 43 • .;:s adults. •.U.S.C.A.ConstAmend.,l. _ % _, _ quest•ion. U.S.C_ACoaSt_Amend..L - _. - '�y MIL �+A y'Sr F 1" :' �'r` t s 1 'fh .:.-7. .�^* ,,,,-I f ..k-, .�.„ - i1,!- ,Kc 1. r ' •, -:- sue_ } yy�M� 6 T -10*- ,k ', 3 .J 1y d q'':`d , W'. 'F',. AF✓ �`H •i „ 'f (•MY -i'�*� • y ,`Mom. Y .KYt ere .(- _ _ w• ' �•�y',.�,{ ,{,'" '!P'_ a •h .a' 4+, may., �!d' S^'3 P b, g„"`�` ' '� b �•-'F�. R,4,31 3KE! `ti'a � t: ft ,1-''.1_ e`.c _ �•, "x+j" s` i..� _ ',r qR pyyy�� +any.-Ii� t�.-�n.Cam.1`�3..SI".^,�.�.i�ri.�'. "^t �rt 1 ��Y � ,!y��j�����' . _�tT t,�yy7 ,F t ( ,y�„1 ^"mil"','.5-�'••. ''' ! 1=:. k 44! :41-.C4---' 4 Y,.•. ` { .'t•� P .,,i,71i.pk•Y 4'r � rl C7+,. -,4*- 44:i .'y :j. r1. •q' r c t .J ..d t d. 7f'1� 1 �i�'i�au $..`1 •-•p - • .ate- +"'�t r•-! 5 ; �'f�4Lti-4r�r fr . 4 i c„ - > .• Y 44*7 � .4, '• * ••Ml 4 : rw 1.14 ym itp ' T ` �� -• ., • 'i �+� k co N r-'^ j � x ! '� f s. Mf ty 's. 2. • BASIARDANES V. CITY OF GALVESTON 1205 (Jie as 6aZ F2d 1203 (r9R2 IS. Constitutional Law dlt=.90(1) 21. Constitutional Law 4�90.1(1,) A "reasonable time, place, and manner • Adult theater ordinance that furthers . ..regulation" restricts speech but leaves open goals such as rehabilitation of blighted ur- . •adtxruate alternative channels of communi- ban arc as and urban renewal satisfies re- z . 'cation to speaker. U.S.C.A.Const.Amend. 1. quirement that city have substantial state ::t...4,....-...,-,,,,,, , •• Sec publication Words and Phrases interest to support law .restricting free t . - „ •fur other judicial constructions and speech. U.S.C.A.CunsLArnend. 1. - imr-- . definitions. 22. Constitutional law '90(1) l ,, 16. Constitutional Law 4t=90(1) To support ordinance restricting free ' Reasonable time, place .and manner slc}r. assertion of st rte interest is not " t 'enough; cil • ' regulation does. not violate First-Amend- l; y must buttress assertion with evidence that state interest has basis in fact " Ti menL .S.C.A ConstAmend, 1. _ •and that factual basis was considered by .:, 17. Zoning and Planning (2=12 • city in passing ordinance. U.S.C.A.Const -? - . Tolerance of economic burden is appro Amend. L 4 '' • priate in,judging zoning ordinance that has 2.1. Constitutional La*.(1=90.1(6) - . . .;I: • - no impact .on protected speech;: but. when . :City had.not sustained burden of show- claim of suppression :of speech is raised, ing that zoning ordinance, which restricted • lyexclusive focus on economic impactvis•im- operation: of adult theaters to certain - - proper. U.S.CA.ConstArnend_ 1. defined areas, responded to adverse effects • ;�► of adult theaters rather than to perceived 18. Zoning and Planning.�=581 unpleasantness in having adult theater In action challen n constitutionalit ' #' ' g Y downtown so as to sustain assertion of state •of city's zoning ordinance, which restricted interest in restricting free speech where operation of adult theaters to certain city offered no evidence• of .what vices !s defined areas, failure to consider conse- would flourish if adult theaters were al- quences of confining adult theaters to most. lowed downtown, no evidence was intro- • '. unattractive, inaccessible and inconvenient . duyred to supplement city council's assump- .reas of city was error. Lion that one'adult theater located down- • - ` town and.urban blight were linked timing `-'_ �� w" --- - 19. Zoning and Planning '76 t- 2^ Y , r of ordinances pacaa�e cast doubt on .rela- 1(!r , � ,� City's zoning ordinance, which restrict- tionship between ordinance and alleged pur- '- 4t-�.} ' t.'z4` Ir• operation of adult,theaters .to certain pose, and, as far as record showed, city a , .n .. ��€f� .`-,54 • -defined areas, could not be sustained as ,4 + .~. placed no zoning restriction on bars, pool. �,�. 9��� °.t�,�,;,� z, reasonable time, place,and manner regula- }lulls, pawn shops, or massage parlors. Ail;.-k �- tics" where ordinance,banned adult thea Y , PX e:- •::1 A1.w -,^t'11: is C.A.Const.Amend. 1. •tern outright from much of city, few accrss x `x Y r 24. Zoning and Planning 6.51 ----•�,, ,, toads led to permitted locations, which were ' Assumingthat cityhad sustained bur- ? � �y'?` i`'- found among warehouses, shipyards, undo g, - a - veto • den of-showing governmental interest to .- l r ,� i'' ' . ped areas, and swamps, and such loca- .. ,w. .i";• - : tions were poorly lit, barren of structures justify adult theater ordinance's restriction +�r t_ suitable for showing films, and perhaps un- on free .speech, in onler for ordinance to - 1 , ,i, ' �""' safe. U.S.C.A.ConstAmend. 1. survive judicial scnrtiny city also had to s' -; s ,? - , Y show ordinance was narrowly drawn to T r^ 31' ' " ' -` 1 .20. Zoning and Planning �76 serve legitimate government interest with : F ar' " '; H t''fr. i' 7 .is Unle s zoning ordinance restricting op- only minimum intrusion upon First Amend- dr*�ttTr # - .: eration of adult'theaters to certain defined menL freedoms. - li.S('.A.(vnst.Amend. 1. � ? arty advances significant governmental in- 25. Zoning and Planning 76 - " r fg terests4. and accomplishes such advancement .Under First Amendment overbreadth g, ,;.77;• without undue restraint of speech, ordi- doctrine, former building owner, who had 'c + ,4 +r-2:_ r Hance is invalid. U.S.CAConsLAmend. 1. sought to convert part of building into ;•1r?_ x ,� ,, 120N', G82 FEDERAL RF,i'ORTEI:, 2d WES . .adult theater, was entitled to argue that ing or otherwise suffered restraint of his •'•;;' citv's adult theater or•dinaner war unconsti- First Amendment rights. U.S.C.A.Const. tutional ar applied to other theater opera- Amend. 1 's tors whose fare, though sexually graphic - 29. "honing and Planning s571 • f and subject to ordinance, fell in mainstnum Litigant who is up to point of needingof American film entertainment. U.S.C.l, Const.Amend. 1 permit has ,+bending to chal►cngc permit scheme even without applying for permit. . ` 26. Zoning and Planning �7f t1.S,(;_A.(;onst.Amend. 1 • City's adult theater zoning ordinnnc whose coverage was defined by reference to 30. ',coning and Planning a=570 Texas law on what adults believed was Not every anticipatory challenge to :'' undesirable viewing for minors without pa- -permit scheme is Justiciable. U.S.C.A. rental con_9ent, was far more restrictive Const.Amencl. 1. than neM'.t.ct-' to achieve purported goals 31. Zoning and Planning �571 of arresting deterioration of downtown area r, and preventing and curtailing crime, and Adult theater ordinance's advertising • • therefore ordinance was unconstitutionally ban, which prohibited advertisements for - overbroad, where many works that might adult bookstore or-theater to be shown or r be classified as obscene for-minors were exhibited so as to be visible from street or . sidewalk, had actual and specific impact on P. �• works of merit to adults and theaters show- :r '.• ing popular but sexually-oriented films former building owner's First Amendment ..:, { . _ _ were subject to ordinance to same ext ktlss rights, giving him standing to challenge • adult theaters showing films on fringe of ban, where advertising ban restrained for- , _ • one. . V.T.C.A., Penal Code 43.24; U.S. mer building owner from •placing "adult - C.aConst Amend. 1. theater" sign on his building. U.S.C.A. .fi' Const_Amend. 1_ • #' and Planning �571 27. Zoning . • Former building . owner, - who had 32. Zoning and Planning 4=571 - _ , sought• to convert part of building into Former building owner, who had - j • adult theater,, lacked standing to attack sought to convert part• of building . into ' " - permit-requirement of, city zoning ordi- . adult theater, need'not have flouted adver- )-4 - . name, which.restricted operation of adult , tising ban of city's adult theater ordinance it 1- • ;theaters to• certain. defined areas, where 'in order to have-standing to challenge ban ;_ '• - - ordinance precluded former owner from ob- under..Fi.rst Amendment_, • US-CAConst_ f 4 , taming lease revenues because,of dispersal Amend_:L, ..`' •• I. • -provisions'alone, permit system played no _ F 33. Constitutional Law �90.1(1) : , role in causing injuries former owner had alleged, and.former owner did not actually - - Laws : restraining First Amendment- a apply for it nor did threatofunchan-. .rights may be.challengcd.by those who al- ,, •`- neled discretion:in'City officials_deter him -loge, desire to engage in proscribed or .regu- r ,� -' ` ` : from_engaging in -'activity protected -by lat.cd activities although they have not yet - - First.-Amendment-.-.'U-S.C.A.Const._Amend_ done so. U.S.C.A-Coast Arnend. 1- , '- , '- 1 31. Civil Rid ht�+ �=13.3(1) d f, s— 28_ Zoning and Planning (r-- 571 Allegations of infringements of free Q ' • - Former building •owner, who .had sp ech may be redressed under civil rights E sought to convert part of building into laws. 42 U.S.C.A: § 1983;• IJ.S.C.A.Const_ - w s a adult theater, had standing to challenge Amends. 1, 14. . i. city�a zoning T ordinance, which restricted op- = ",;a- Jam, '� oration of adult theaters to certain defined 3>- Constitutional law '90.1(I) . - -- s` _'_ arms, only insofar as he suffered damages Commercial speech enjoys constitution- - x 1l!: from ordinance's effect on his-use of build- al protection. U.S.C.A.Const_Arnend. 1. r, .- F . ..may:-, ' — t � � a.. Orr .r- rr 'ae '` ,•' �.. /• el v-.1.- i'�;r -w Y . F'� -w• ,:.w .,gin- y "tu > 3 " „�` �, - t', y6' rc,- •... 1"-r" . l''- `W. . :�.. r'_ u , 'Sw'r.- -a 'i -t 3" p"4 -u t "" t' 'r -Y+�-3 `-y_ -.l' =_ 7 4.4 ��Uar tee a tt .t1. .M asp '- ,- •4a. p3-,, f .- '„�Rtr:cs• F -w�' +• .I^Y '-te st• �- Z "''''.• rrs"�r+ ,*11 » 5.— yr --�f,-, �..yf„4.4,E i q 4- N.• *., #., �1,i�- r rx r Y1t_ .u'4 T - 1�.,3 -a�.,,,,,, '� 'h" L' -,`" 5. ,•;4's �r-*"..r r s - iV"" y.�#..,,,,,�53 ',e z"y pi1f� 4 +t*. �y 4a vE a:Q- E-a Frye{•Y 1-a.ii''• ,.r u 4 'S ,#t t'- ' '�`u+"•s. ,�;+W7' 6�'r, -`�" £y g1�*•#t w`K"g., ?tK'• 44'`-- :'�'S' , '. _ t.S.,,' '�• -�- )",+4`'�' ,'4 1 t r l�"a n ' �'+-i rt . N. y�.x r -4 's 9'.2•*to "r:: ., xx'µ �"„ „ir. , ••. t r `'F-,'i .. ,,, ..i '• s.'. I ' + i.1t° K'',a i *. _r..3t " 44:4;''' N.i 'i,,-'7:i gar---t * -,/ S. .. ...T.`.isa-�. ;'iF,t,.._ . R�+'i'..•r-: _ Ys:a'".Sc'i.0. .:_ _Y..,.4, a-may ..;r-r.t _ .� :... 1 'h �w' � ' pert: ! r 3.. , • i I 13ASIARDANES v. CITY OF GALVESTON 1207 cot,■a 6+12 F'24 1203 (11.2) 3G. Constitutional Law 4:=.90.1(1) 41. Civil Rights cr,•=13.17 • State and local governments have freer Record failed to disclose that former rein to regulate commercial speech than building owner, who had sought to convert political or exprctisive speech. U.S.C.A. part of building into adult theater and whu ' Const_Amend. 1. - testified that ,he would have repostcd , 37. Constitutional Law 4'90.1(1) "Adult Theater" sign hut for advertising _ To regulate truthful commercial ban, had shown any actual injury as result . - of adult theater ordinance's street advertis- • speech,-government must have substantial ing ban and therefore he was entitled only ' interest that regulation directly'advances to nominal damages for unconstitutional re- and regulation must bo no more extensive strain commercial t of his coial speech rights. 42 than is necessary to serve that V .interest U.S.CA. § 1983; U.S.C.A.ConstAmend. 1. U.S.C.A.Const.Amend. 1. • i • 38. Zoning and Planning 4==.76' 45. Civil Rights 4:=.13.17 - ' -Adult theater ordinance's absolute pro- Attorney fee award could be supported - scription of.adult theater street advertising by award of,nominal damages.to •former •• was unconstitutional,notwithstanding that building owner for- adult theater ordi- interest in shielding public from lurid ad- nance's unconstitutional restraint of his _ . vertisements for sexually explicit films was commercial speech where successful claims both strong and legitimate and that ban served to vindicate constitutional rights. 42 directly served that governmental interest, U.S.CA: § 1983; U.S.CA.Const.Amend 1. where ordinance prohibited' even simple • sign announcing existence of adult theater - , and thus restraint wont far beyond city's -Matthew Horowitz, Univ. of Conn. School H legitimate interest. U.S.C.A.Const_Amend. of-Law, Hartford, Conn., for plaintiff-ap- • 1. — • . .. . pellant 39.'toning and Planning 4=.76 . •. Robert-V. Shattuck, Jr., City Atty., Gal- If city adopted ban on adult •thea , veston, Tex. for.defendant.appellee. street advertising as'means to prevent peo- Appeal. from the United States District ple from attending adult films, ban was court for.the Southern. District of Texas. flatly invalid. U.S.CA.ConstAmend. 1. ._ ... 40. Constitutional Law 43==•90.1(1) Before GARZA, POLITZ and WIL- ' 1 City cannot restrict truthful commer- LIAMS, Circuit Judges.. , _ cial speech on ground that city is fearful of ref: x yr-F- - - that information's effect on its disseminator" JERRE S. WILLIAMS, .Circuit Judge: . A. and its recipients. U.S.C.A.ConstAmend. L This case presents a .First Amendment - ' ' r ,, 41. Constitutional Law a='90.1(1) - 'and Due Process challenge to a zoning ordi- ''t m', City had to aim at legitimate and sub- nance that is so broad it effectively bans - stantial purposes when restricting commer- -the showing of nonobscene but sexually on- x {�,w .,: cial speech. U.S.C.A.Const.Amend. 1, - ented motion pictures at adult theaters '`-i, within the City of Galveston. George Ba- +.,, 42. Civil Rights �13.17 -' -t siardanes, a property owner-in Galveston, � ' Damages for violations of constitution- �. v;T .3 leased his building for the showing of adult r' .;, al rights may be recovered only upon show- - •$ ing of actual injury. films. Galveston then passed a zoning ordi- " . - nance that prohibited Basiardanes from us- s x 43. Civil Rights at=113.17 • . ing his building for this purpose. After the p `;ski For violation of First Amendment un- Galveston adult theater ordinance frustrat- Ea ;,�•. accompanied by any real injury, plaintilf ed his plans to house an adult theater in his •;,. ��-. c may recover only nominal damages. U.S.C. building, Basiardanes brought. this suit, sgqq:4 A.ConstAmend. 1. claiming that the ordinance had the effect 4-,y. . . i:. ,. ••t • . _ 1208 682 FEDERAL REPORT4':lt, 2d SI ••:.`; f - if k of zoning adult theaters out of the city and Amusements entered into an oral contract thereby constituted a prior restraint of pre.- with Basiardanes to ka c part of the , • •r• tected speech. k asiardanes also challenged ground floor to show nonobseene adult mu- the ordinance on vagueness grounds. tion pictures. Basiardanes agreed to re- "a _ The district court held lhnt lfavianlunes model the building for that purpose. 'I 0 - lacked standing to challenge certain pruvi- herald the arrival of his new tenant, Basucr- sions of the ordinance and upheld the others dunes put a sign on the building reading -' 11 against constitutional attack. 514 F.Supp. "Adult Theater " • 975 (S.D.Tcx.19S1). Specifically, the tbs. Basiardanes' enthusiasm for his new yen- , trio court held that the ordinance did not tore was not shared by Galveston city offi- constitute a prior restraint even though it ci•als. Tile proposedtheater lay across the -• excluded adult theaters, as defined in th` street fron, a major renovation of the City's ordinance, from h5S;, of Galveston and per Grand Opera House. �T'hc city government from all practicable locations in the : City. Basiaudanes appeals from this judh- feared that the presence of an adult theater ment. Finding that the ordinance does in- 3Q close to the opera house would deter fringe protected speech and that the district families from patronizing the historic opera court erred in its denial of standing on one house and thereby impede the upgrading of c - the area. Moreover, the City apparently issue although it was correct on others, we reverse in part and remand. - believed that a nexus existed between adult • I. The Zoning Ordinance theaters and crime. Downtown adult thea- i tern, according to the City, threatened its 4 The City of Galveston lies on an island oA -effort to reduce the crime rate in that area. - # • the Gulf Coast of Texas. Sixty thousand Thus, when Galveston got wind of Basiar- ' • people have chosen to make their homes in danes' plans, the city government quickly • Galveston, the area of which' is approxi- moved to block the opening of an adult 4 i' - mately 52 square miles. The City is a popu- theater in Basiardanes' building. .tar resort and enjoys a large volume' of ri 'r The City's first action was to pass a mor- }r tourist traffic especially during the warmer atorium on downtown building permits. t_ • months. . f In 1970, George Basiardanes acquired a The moratorium thwarted Basiardanes' ef- • . three-story building in the downtown Gal- forts to convert the ground floor of his r - . - • veston business • district.. Initially, he 'building to ra theater. Shortly after the ii - opened a sandwich glop'and pool hall on the •moratorium was passed, the City erected an . . ground floor, and rented'out the rooms'on• -even higher barrier to Basiardanes' plan to:-•--" ' E.t.; . ••- the tipper two floors to'individual tenants. open an.'adult theater. • The City passed •• • -Ounng the :1970s,' however; Galveston's....Ordinance'"78.-1, which comprehensively downtown business district.safferad the'de- re late; the location of adult theaters•and • _ .... ..-cline,that,: has ',afflicted-.man} iAmerican adult.-bookstores.[_ _-That ordinance is the - -.• - cities. .. a Becuse fewer .and...fewer :people 'subject of:this suit_ •; came downtown,;.the .poo1"hall'e.business ••:-The ordinance keys-its definition of adult ...-`, dropped off. In 1977, Basiardanes decided • motion picture theaters 't.o Texas law• :Un-' --. -• . :-,4± - to sell his building or;failingbuyer, lease 1 ,- :�';� . � a u Y _ der' the ordinance, an adult motion picture �•'; = it to a business tenant.; . theater is one "from which,'under the laws -; x- _ • - -. _ = ' Basiardanes' leasing'efforts'evoked a re- of the State of Texas,-minors are excluded -•• .• t la sponse from a movie concern called Univer- b virtue of. ' � y age unless accompaniccl by a. -_ .r i • - 'sal Amusements 'Company.. :.,Universal .consenting parent, guardian or spouse_"?' t, - - 1. The ordinance is set out as an appendix to the 2. The Texas Penal Code,•Article 43.24 V.T.CA. ... district court's opinion..reported in'514 F.Supp. (1974).makes it an offense knowingly to sell to --.,F.: s at 983 HS.: an individual younger than 17 material: 4• 't , .. . whose dominant theme taken as a whole: : N, _ 3?� .._,.c . e .. �{...,'w,4 x"++Cti `_..h� F.t.. -.. ; • • �rx " :^v .: "�•. {.. in i.� �r t t.r 1 :_eyys +-,[^ '•4 .„ .. i ,.ix ,, JC ‘y, � „ i" ` a _ ' - 1' - -` ,-'e 4 s.-Ir; s 1� w Fr � _ .�_:- w '5- -- _..,. . ''' ..... 7---- V, �i t� .' . '} ' � :' � y i � J 3�`4•: s,��' •'Y•x�7- ^ g - �`' �— .. � "qq TT_ - 1 Jia1x.a � s a.._ s_ .i 4- . r.. xy ^ �a.�•'•�1brw 'i t4-1 .,/. Q. . P't 4:5;e44-74.,,,-:.1.,-,.....03-. 0.,4.:,.t, % i. • • e; A"G ! � ; r 9 ,... yw . ' �L L •►-*•)- , CE.4• ‘ a.ta -- `xt '+.. iij4n ,, xy. ' ,6" - ` rwJa,r rp 4,. - -a y. ,. •.,, L r --A„ -.,. , 2%, 1, y + , J.+k ,. •. tr t, esi,, ..a : r r � - t- sMn r ��` � k t- j&+at -t e , � , yw t , tr ry't sa 'Tfa >.y, 1 , 41,, - „44.+'l`tit , ?', ± Zr4 y o , .'l� uIa �k ' .F;P; 414V; 4Pi ', J ^ 7�V-044� L ' ' i �'i,, *y„*~:. � " wri 'k l "trS n� y ii;p -- n ' f "t. ie i".- '1-* .`t lr�_ rlts -•?' + ^ k • •• Yw -.. ,. • • i �• Yam` �.• ro :c"' fL .• I 5•» t. w , - IBASIAHUANES v. CITY OF GALVESTON .1209 • (ate a3 682 F.2d 1203 (1982) - The ordinance applies to all theaters that - .Hance prohibits any advertising or displays regularly. show movie_; that Texas prohibits for an adult lax)kstnrc or theater that are '" minors from viewing without parental per- visible. to the public from any street, side- • T• ~ mission. It is not limited to theaters that walk, or other public place. No other corn- ..fir 3"" +'� show obscene movies or even blatantly sex- mercial est:Iblishment_s are similarly rt•gu- 4-�•s +` z,•r ' '_ ual but nonobscenc rnuvit- laced- ,- ' i a , k? Ordinance 7£5 1 restricts adult movie the- I3asiard tots had been forced to discuntin- r:;:�* :•a `"°5 r �+ aters to eras zoned for three uses: central ue renovation of his building when the City x' Alt ' business, light industry, and heavy industry. first passed the building-permit moratari- «ra" ---,I:kb `f�" Residential art �s are off-limits altogether. um. Simultaneously, the City had pros- ` Wig''. '' - :; Within the business and industrial areas, sured Basiar•danes •to-remove-his sign an- s t _ r�. the ordinance disperses adult theaters_in flouncing the imminent arrival of� adult •, -i- - f 4 three ways. First, a theater must-be more movies to his premises. Ordinance 75-I -- t T, than 500 feet from an area zoned residen- then 'dealt- a z :Y fatal- blow to ldasiardnncs' . ' "+°� tial, or from any two, or any combination of plans for presenting'adult entertainment-in ... ; .two, "pool 'halls, liquor stores; or bars." Galveston_ Deprived of the revenues from • • • Second, an adult theater must be more than his lease,'Basiardanes contracted to sell his : h Fs '1,000 feet from another adult- theater or . building'and brought suit for an-injunction - A �: - • _ :adult bookstore. Third, -an 7adult:theater damages'and•• :against the City. under 42- ss -,' a , .must be .more than -1,000 feet. from:any U.S.C.•§ 1983 claiming a violation of his chtn-ch,.school, public-park, or recreational rights -under-the' First. and . Fourteenth t".! „ it ,„ facility where minors congregate?? • . . . Amendments.-• After a trial; the. district " ''' Kr•�w - These dispel,requiremente result in ex- court. upheld.the constitutionality of Ordi- - 7 eluding adult theaters from 80% to 90 , of nance 78-1 insofar as-Basiardanes was held the three area-from:which they are-not to have standing to question its validity. - .t flatly banned, including all'of the central - II. Vagueness - ' ' - . 4�"'7, ( ` ' - business district_ The onlyconceivable re- ' :s s `"' +' , -` Rasiardanes challenges several portions '1$- maining locations are in the areas zoned for of Ordinance 78-1 for vagueness." The ord- r��� � syr light and heavy industry The-industrial nance dates "adult theaters." .,�' zones, however are largely a Patchwork-of 7 regulates mar �4 ra . danes-Contends-that the term "adult thee- * 1 ii"Plul. . swampe;r warehouses, and' railroad tracks. ter' is unduly imprecise because the defini=. t ,�re. V -They also lack acr s roads and retail estab- , tion applies-to theaters,shou•ing adult films - N -Ki 11 �i a'` tishtnents. ; � 3t.. -.-- - -_."on" a-.regular basis" but fails to define .s +.4,• "i� Y 41. t ,'•` - : Further, -even for those locations not ':regular basis.". ,lie also finds imprecision = • , s Y= + barred bythe dispersalq• p p 'j`` :,4 requirements,a s - in an exception from the definition of adult ;' s tr �f -cial permit must be obtained to show,adult theater for "schools" and "public auditori- . T� A). k R P M ' S'4 •filrrt. ..-Under the Orlin:snce,:the City may ums" In addition, the dispersal sections-of _3.-.,.;.-.,;,, ' '*',�"-1p '' ' grant a permit only if it finds: (1) that the- -Ordinance 73--1 contain several terms that - Xx `x..-4 • '" '` theater is not contrary to the public interest Basiandanes finds vague_ Adult theaters 4 _ or injurious to-adjacent properties, (2) that may not be located within specified dis- � ) .'5 : the theater will not enlarge or_promote a Lances of churches,.schools,. parks, "recrea- �'i • v-1 �, ;; :: "skid row" area (3) that the theater will Lionel facilities where.youths congregate,". • � �1 ' not interfere with a ncifhtx>rhood conserva- bars, or other adult theaters. B:t_ ardanes ' ,4 r •` F= _ F tion or revitalization program, and (4) that contends that each of these words has un- • ..' s � all zoning laws will be observed- -- certain meaning. z. �i ' The ordinance also regulates the on-rile [I] Laws that are unconstitutionally r � x� 4 i a advertising • of adult (heaters The ordi- vague fall because per-sons who must con- .�!�▪ 9; (A) appeals to the prurient interest of a with sespert to what is suitable for minor: � Y .�„;,,, w:s•s .y g minor, in sex, nudity, or excretion; �".4�Y t� 't ` and .ti'i• - � ` .'.3- eti-.�s.-4-14„ ..� y 4,, ,: (B) is patently offensive to prevailing scan- (C) is utterly without redeeming social .al- -iw �f+ 'ai -a�.`'-`ae dards In. the adult community as a whole B -' s'x S R r"-g x� r +-' Y ue for minors_ ' �il -rrF> R., , ..l ,,. a sa r 3� a' ._ - •r a y L - ... +...r ?.il, ° a<-• ,�- •'Fii 3 6 :c. ^ta.•^ 1 t - r c",k t , t" yoiSe4 .� {f ] :.' 71 1. 411- tP • �V �,r0. -a: . 1yt q t F.Y ( h �r-. y L ,.g f-S , i fc�, rrt , fa,. G qF AY `} `i _ ` • t' ce& Cfi •' {:~ . :i: , r.:f "".',� •. T{ .u..-, ;, r.aT ',*•i,..-,1.• . .. n ;7 e,• T -r 121 O 632 FEDERAL RE1'ORTE d SERIES s; form their conduct to the law are entitled Under Young v. American Mini Theatres, to fair notice of what is permitted and Inc, 427 U.S. 50, 9G S.Ct. 2440, 49,L.Ed.21 proscribed. Pillage of Hoffman k stlrte•s v. 310 (197G), a litigant may assert the First Flihside, Roffman 1•_stat.e:., — U.S -- , Amendment rights of others when the ef- 102 S.Ct. I186, 119:i, 71 L.Ed.2d 362 (19;;21, fect of it vague ordinanrl• on lcgit:mat, - Grayned v. City of Rockford, 40:; U.S. 10;, expression is real and substantial and th, c 108. 92 S.Ct. 229.1, !'J8, 33 L.F:d.2d• '.::'. language of the ordinance is not readily / (1972); Fernandes v. Limmer, Gf3 F'1ed C,l'_, subicct to a narrowing construction by state 635 (5th Cir. 1981). Fair notice protect: courts. 4'r U.S. at 60, 9G S.Ct. at 24,17 - those who might otherwise stray into the (plurality opinion); Erznoznik v. Cit►• of E regulated arcs, prescribes standards for law Jacksonville, 4''' U.S. 205, 216, 95 S.Ct k ,'. ' enforcers, and preserves legitimate activity 2268, 2276, 45 L.Ed.2d 1`25 (1975). - - , against the chill that flows from a law of . uncertain scope. Grayned, 408 U.S. at ]0:'s American Mini 7'heatres concerned a zoo- . 09, 92 S.CL. at 2z93-tr.,. • ing ordinance that regulated movies "char- u acterized by an emphasis" on certain bodily . [2] Basiardanes challenges the Calves- parts and sexual activities. A theater oper- ton ordinance as vague on its face. A law ator maintained that it had standing to is facially vague if its terms are so loose argue that the,ordinance was unconstitu- :' and obscure that they cannot be clearly tionally vague as applied to other theaters, £ • applied in any context Such a "law is even though the•ordinance was clearly ap • - li _ incapable of•any valid a pplication .Steffel plicable to it. The alleged vagueness was in !La. v. Thompson, 415 U.S.t 452, 474, .94 S.Ct • how much emphasis on the specified bodily 1209, 1223,39 L.Ed.2d 505(1974), because it parts and activities the ordinance-required does not provide any standards .against before a film became subject to regulation. _ which one's conduct may be measured. The Court denied that this vagueness issue -. . . Smith v. Goguen,415 U.S.566,578,94 S.Ct posed a sufficient threat to protected 1242, 1249-50, 39 L.Ed.2d 605 (1974). speech •to warrant third party standing. [3] .The terms of the. Galveston ordi- "For most films, the question will be readily - . • nance, however,tare not vague as applied to answerable;..to the.extent that an area of '', • - Basiardanes himself. --Thal testimony .es_ doubt exists, we see ne .reason 'why• the • 'tablished 'that Basiardanes knew that the ordinances are not'readily subject td a nar= theater .be proposed to bOuse would Show _ •rowing construction by.the State courts'" 427 U.S.-at.60' 96.S.Ct•at•2447.. .,.a - _- ' - adult movies within the meaning of• the g ordinance. •Dior cover, Basiardanes corice d- - • ,_ . .ed-that his bu`ilding'lay within two blocks of• `°-'[5] 'Under America>z Mini Thestres,.Ba- a'.church and :within.500.Sect of'nearly a siardane 'conten)ion.that.the.Galveston or- , '' ^ - •- • •' -• ' dinance is.vague as applied to other'theater s._.__._ 'dozen bars.-•Thus,'Basiardanc facial the)- ._ . " - - 'len re to the ordinance must fail because the - operators -Sails to '_warrant third , party -- - Y PP •Y standing. .Basiarc�arics argues that the teal- _ terms of the ordinance clear] a 1 to his - r= • own building. •• ' -- veston ordinance applies.to:theaters show- y;, s • ing-adult films on a•"regular basis," and ., �--- • [4] Basiardancs nevertheless claims that that it is unclear what "regular basis" uw he has -standing to challenge the ordinance .- means. We -find no real and substantial . • 1 -- on'grounds that-it is vague as applicxd to . ambiguity here, and to •-the extent that ' .t` _.•',yi -,;; ,_, - . _ •othem. Ordinarily, .a litigant, to whom a "reef,*Mar" is vague, state courts.may clarify .,. 0,: w __statute clearly applies lacks standing to ar- it without insuperable difficulty..Similarly, : gue that the statute is vague as to others. the other tcrrns challenged by Basiardanes, sz, -1 - _ ,,�...� $ In the First Amendment•coritext, however, such as "church" and "school," have such C4,,# ""`,;' courts have relaxed the general rule against narrow areas of vague application that we -- ,- standing to ruse the rights of third parties. see no press' ing_ need •to adjudicate the • -- - 4 i , �'r�"a �g r t. �o s 1 r ;e 'a 1�h raEs+,ii F' • 4Y�r - #: `4,..; - • _ _ s---,, T — xg, -� 5� S ii; gel • �s .i '.- Siil- }"•S.•Q":..�a1`''+L Zr.Zf 7. _��e+c 'k-a..''.• _ ss Y '., , Y ' a._.'r-,'Y•.A.., '+ . 'J z �^�i i'` : ` � 44. - nc2-}#�!, KSt� `.}}p er z�.1' r„" -7, 1- s q kt� ' 4 ` 3 '•�' �=i r• `C �rir', , .'-]x � '"`.J� mow` �,+,�.+t�. F"'. 'n 5�"A +, -,y k. .� r �a �`��. bed} fi _+ R e' „c s*: »3` a4 ;tc r • a� ' rR.' ' ', _ .'.Z`. sot*kig �?p wa' j-'e.,A . 'z$Y 3^' � ..-- V"��` ✓ .' i'..iL Fri•1"` ? 1&;:�e&� « .s'.�.:,,w-.r.rK">t4's'�',.s.t �-F. :... �aN�'�r-S1 - ., ..r.+Sat'.:. C! ,."-_.. . .... _ .,j¢�_ct{'�.'L� -Y". ....�,.�,.'4-.v e� 'r..::^lid..<.� '�`:1,.:�tr. ,"'t-,'.S�.' awa....J, m c rig e 'i 1 < xt BASIAHDANES v, CITY OF GALVESTON -- - 1211 Ott u6A2F.2d1203 (19ti2) + } .t h •• at ;i1 righLs of ix:irties not before the court1 macists toi'uivcrtise the prices of prescril,- erg if•( Whether these terms an: unconstitutionally tion drugs. The Court stated that "(fire)•- 13= ri � ,,�, +7p vague may be decide() when one aggrieved dum of sl>Lech presupposes a willing speak- , '7� 3. � by their imprecision chooses to-challenge cr. But. where a speaker exists, as is the ;1.r 4 +.... ... ; .A.-t.( then.. / - . . case here, the protection is afforded to the :i `� ii``" L F -i'- communication, to its source and reci IienLg let,. `1'i4 �' j" "' I r _ IiLgiartlanes also argues that he his 1 �+ ry w j + fi 7,- 4; • standing to snake his vagueness challenge in .both," J2.5 U.S. at 7 5.6, 96 S.CL at 182:i r'" t, -t +rs his capacity as a movie viewer- lie claims (footnote omitted).' }.r•�,'Kw r -••( •.M''; ' .' , •• that Ordinance 7K-1's vagueness intimi- [9, 10) Although consumers do have the `4 r t ,, 1 r dates movie theaters and deters them from - y . 1 45 ;so t' '- standing� to challenge limitations on the cx- • 1 t , * showing; adult films. Ile seeks injunctive ercise of speech in proper circurnstanccs, on s r ; f ,s, ,. -'; relief-against the.ordinance to _grant him this record we find that:'B Lsiardanes-lacks '''-; x i o sue'''N. s his right to view adult. films free from the standing. in his capacity a_,'•a moviegoer.- 'i ,� J rJ 'f ` `' 1 Y � 3 .xsw inhibition of_the ordinance. ' :fi , . , Recipients of protected communication have e t!s;_,x�°, re,,, , - •.. [6-8] .The First Amendment..protects standing• only if_there-.is a speaker who fyf; 1 `' - the right to hear as well as to speak..'.Vie- wishes to express himself-or'herself. Vir . - � i'' t, a gins Stare Board of Pharmacy vi'Virginis -ginis State Board,•425"U.S. at 754, 96 S_CL ' _`,' ,. ' a:o.i, s r c ' Citizens Consumer.Counsel, Inc., 425 U.S.- at 1821=22.•. The record here fails to' dis- ' . ,'.� w - 748,-96'S.Ct_ 1817, 48 L.Ed2d 346 (1976):- close-the existence of•a"willing speakeraf `s1i Y An ordinance that silences a willingspeak- fected b the ordinance; other then Basiar— ','"}e% ' Y, �f:1.,,,-, w ' er;' therefore, -also works'.a constitutional danes. -Although several witnesses testified tsw Wei r ;rt ' #i•s' injury against the hearer: In -Virginia ..that Galveston'a•market could •support an • T""L-•-�(y r.f 4: .,, ( ` .f �+ k `ice :. _i 1 MI • - State Board, the Supreme Court upheld the additional adult-theater, none testified that ,sll"''�s'' `' :„ -'•" right of consumers to challenge a Virginia he would open such a theater but for Ordi- ftu .4 .1 4° , statute that •restrained the freedom of phar- nance 78-1. In the absence o_f a willing 4- 3. Cf- Stansberry v.-Holmes, 613 F.2d 1285, lions on pharmacists' price. advertising.only .•ly+ r, +i' `'t .. x*t7 .i' 1289-1290 (5th Cir. 1980) (holding that the • because pharmacists themselves had little in- -u:it}•tiria,••:t«i• , ••' *'s'••• "r -terms"schn.s" and''sexually oriented commer- centive to do so. (c: - vial enterprise" were not impermissibly vague We.must reject this narrow view of Virginia F " 1 W,1 #s ^ when read in-light of limiting conditions in the S�It Board, Not only does the Frissell court'a i' ., „ r', to - statute), cal. denied 449 U.S. 886, 101 S,CLview on-standing appear nowhere in-the•Su- ` r� ), s,)'-�; `-, , ,- - - ••240, 66 LEd.2d 112 1980), • ,. r , ( prime Court's opinion, it also contradicts eco y},,, �, '1;•v,#I r s. .r4} nomic experience- Restraints on price advert 1� s• •{' ' ''k • rl .i px`.; - 4. The Third Circuit has held that recipients of s. T 1, vr, t , tisingcreate entrybarriers to new arrivals in d r v a protected speech have standing to_challenge ,. ,/ =l'.4 , I' restraints on speech only it the speaker himself the market. Advertising enables these new en- p� "t* ;41 ry h: trants to gain a foothold in an otherwise_closed �� " ` x - is precluded from making the challenge. Fris- ;t,,,,4 .� �4 � ,t sell v_ Rizzo, 597 F_2d 840, 848 (3d Cir, 1979), marketplace, Pharmacists who are fresh in a r-. " 4, crr2. denied 44 4 U.S. 841, 100 S.Ct 82, 62 community would have every incentive Co chat- k. e,• . ; '�2 � LEd 2d 54 (1979). -In Fncspll:the plaintiff was - . lenge an advertising ban_ We are unwilling to _ y,� , + � '!r ' a newspaper reader who alleged that the mayor assume that pharmacists are more timid than r '`r>i.. , .7, of Philadelphia had withdrawn city advertising lawyers in this regard, sec In Re R. M. J„-- rc:Z;;• 1-,i--i1 , ,t ?. , s-.�, iY • from local newspapers and thereby chilled the U.S. , 102 S.Ct. 929, 71 LEd.2d G4 (1982) , � �, yF''+?n tt exercise•of First Amendment rights- The Third (challenge by an attorney to advertising re- �,w e,�•"iii `fie••▪ °• "` y fir: Circidt acknowledged that newspaper readers' straints); Bates v. State Bar of Arizona, 433 .1.sr�czt• a'Fl . First Amendment rights were at stake. Never- U.S, 350, 97 S.Ct._ 2691. 53 LEd.2d 810 (1977) Mz s i*V-: - . theless, the court held, on prudential grounds, . (same). In our view, Virginia State Board's --- E `r that pnly the newspapers themselves could holding on consumer standing may not be aim- ,, ▪ " ' s . . , r ..--complain of the mayor's action: ited to situations in which the speaker is pre- li t 0,x• ' '� - The Fussell court attempted to square its vented from raising the First Amendment ques- u,,+ y+lg`t '�`. • . reasoning with Virginia Stale Board by arguing lion- ,t• +�� - r ill that the restrictions on pharmacists' advertis- f* "i r e •ing in that case created a "pharmacists' cartel, • 5• Only two witnesses.in the theater business FKrl" �"' Sheltered from competition, which sharply re- testified at trial. Neither expressed an intent r i-- a .-""� 5 ,, duced the incer.tive for any individual pharTna- to open a new theater, James Ohrnart, Vice- ..4. ' � :" t'..t.za• (art to oppose the regulations-"^ 597 F.2d at President of Theaters West, Inc-, testified that +S ,..- o « ,„. �, .^ 849. According to the Third Circuit, consum- his company had no plans to open a new adult s • a-▪ i",, -,+� 1•-' ers were proper parties to litigate the restric theater in Galveston because a new theater s �� ; 'L -_: •r(•yr rt34, ?Y'1 Y� : ' r{y f 4a r ^ •t•, l ... -1 r: ,,' -. - Xf 1 ,' +!' k''` $ i. iC 't s t-' , ' Y -tie "''7 -•„ >..✓ 4 .,�S,,,,K n rat x r~ s,, _ ,t:y 4,1,,y s+' ..,;? t:{ -t Fr(� � 71.L.S.*4-rtr!�4�.1..}. ,es*l I.a_ ,'y4� y ,. 9 3Y"y�-i, f c.;,„y, `i4S 4 I''. 54.4.7.-4 4tt -,at:i*.$ :7 t <:,»..}• -t..•-0.. ,kn ,cM •,'Y r �7- "`C -re >-uG'7,`"�2 -+j f .4 ,,.' ,� � 't ii k,`14,1`x( •• r.. •;y,"� t- . •, . .-Kn^ e i:, .. a /, ' f "e i r. tf e_y' f • y'` 9 • • 682 FEi)F:RAI, ItEI'ORTFIL ‘u SERIES ti : • s. 121 2 • 2 speaker, we reject Basiardanes'-argument 2133, 2141, 65 L.Ed.2d.106 (1980); Villa'.,. V V. that he has standingto request injunctive of Belle Terre v. ltoraas,416 U.S. 1,94 S.Ct. �.: a .- 5ti ; : relief in the capacity as a movie viewer. 1536. 39 L.F.A.2d 797 (1974); Stanib'rrt• v. Thus, other than to hold that Ordinance Holmes, 613 F.2d 1285 (5th Cir. 1980). Or- 1 ' ;:::•:'-',-...--,,-;'-'' 78.1 is not vague on its face, we 00 not dinaniv, a zoning-regulation v.-ill be su- F_ %t a `"` reiteli the menu of Basitudanes' vagueness tamed if it is rationally related to a kgitt- _-,+;'_ challenge. . . matt` state interest and does not extinguish all practicable uses of the property. Id. r .,1 • j III. R Mtriction on Location o; Differcnt judicial attitudes comb` int,' - -.--,...:-.......•�.. 4 Adult Theaters i' ' `..=`e . play, however, when zoning schemes in- Ei '.- 'z,cj:++fr11'-7 •__ [11) Ordinance 78-1 severely limits the trutie upon activity protected by the First t _-• options of one wishing to open an adult Amendment. In &had v. Borough of __--; 4 •f., theater in Galveston. Basiardanes main- Mount Ephraim, 452 U.S. 61,,101 S.Ct. 2176,tl i ••a- tains that the zoning restriction is tanta- GS L.Ed.2d 671 (1981), the 'Supreme Court 4-j `. - .. mount .to a total ban of additional adult struck down on First Amendment grounds - theaters in Galveston in breach of the First a zoning ordinance that prohibited all live Amendment. In Basiardanes' view the lo- entertainment within city limits. Declining cations permitted by the ordinance fall too to•apply a deferential standard of review, i .far short of commercial viability to allow an the Court stated ". . . when a zoning law adult theater to open. The district court infringes upon a protected liberty, it must - rejected Basiardanes' contentio ,zfinding ' be narrowly drawn and must further a suf- - _ , that. Ordinance 78-1, thought it does limit '.ficientiy •substantial governmental inter- '-- adult, theaters to undesirable locations, .est.." See Deerfield Medical Center v. City "strikes strikes at the pocketbook and not at the •of Deerfield Beach, 661 F2d 328, 336 (5th r.' Constitution." 514 F.Supp. at 98Z ' We -Cir.• 1981),(heighten&' standard of review i' .- hold that the conclusion of the district court applied to a city's denial of a permit to open r • is in error. Ordinance'78-1 constitutes a :an abortion•clinic).- Our first inquiry,there- I;; . restraint of speech in'Violation of Bsiar- fore, is whether Ordinance 78-1 infringes a I, 'danes' First Amendment rights.' -protected right.under the proper•constitu- . - - tiorial test.' -- 1- : .,[12] A city's authority to zone is an - - -'� ;, • ' - in.t.egral.-aspect.'of its -police power. 1The . [13,14]-Galveston s -regulation"of adult i ""{ ri -preservation of•:residential:neighborhoods .theaters;plainly:..imp)icates-First Amend- 4:: w- - ::and business,districts against the deterio=.-.anent rights.-'- he-ordinance is not_limited - r• r.' - .-rating influence of,crime and blight surely"--to movie theaters-and"'bookstores catering - .• :'* l .' 'ranks.among the highest functions that city -.to'those'with an appetite for obscene mate- " ...dwellers expect'its planners to perform.! In• :rials falling•outside:the protection of the •'recognition•of the place of zoning,in:main- a First Amendment;:Miller -:alifornia, 413' .:e . 'taining and upgrading the quality of life in --U.S. 15,93 S.Ct.2607,37 LEd2d 419(.1973). ' - e`- -- cities;courts generally, adopt.a deferential 'Rather, Galveston•has chosen.to r•egulate to -- posture.towards zoning ordinances;-Agin v. :,the :point ;.o(V banning-theaters:regularly - ::::'.: , - City of Tiburon, 447 U.S. 255,260, 100 S.CL showing any-film 'that, under Texas-law, --%' ` •would•only compete with an existing theater, - 6. The City argues that Basiardanes lacks stand- the Broadway,to which he silpplicd adult films. ing to challenge Ordinance '78-1's dispersal " " } - William Butler,the former manager of the Mar- provisions because Basiardanes sold his down- '= � ' •'_ tini Theater If Galveston; testified that the town building before trial:-We-reject this argu-. - .•'.'. -Z.,- Martini Theater had been affected by the Ordi• -. ment••Basiardanes claims monetary'damage- ,_:-i-- 1 - 4. nance and did have an interest in showing adult -because Ordinance 78-I denied him lease reve-- i�;; � 4- - . films while open. 'He also testified, however, nues while he'owned the building. The out-of- _ `'"' - .: that-the theater had closed almost•two years pocket injury suffices to•confer standing upon ' `•>1 S before trial. There was no.testimony that the ---.l3asiardanes: See Duke Power Co. v. Carolina . - t - ;ref. -Martini intended to reopen. F-nvironmental Study Group, Inc. 438 U.S. 59. - -�„ 5_ a. _ 98'S.Ct: 2620, 57 LEd.2d 595 (1978) (litigant ;, . must have an injury-in-fact). • i ff -'�--.y.� .a 47r' sue:.{"- - n'�: ` '-,� 9 ac.. s t ..� z -. axe j ' —..4� ;;,• ,t',�` • ,;.,,.. _ '' y.- �" ri ',lr{ ° x�� �..w"� i.,Vl,-._• K 1 " $- 21. • P�' - ; T ,+fin-y. � AT_ ` _ w.t. jl�' ,�F,'„ ''. ",.. } .. , '' "St o' i ;On: 5�:.:14.7j oEs'i�, F� 't '' I k .''. .7nkt .4}', " ' ��i- .'�" t � 'W ? "' �rnr a M[T t}'+ „� .. �4q �,'r�y,} r„. s• t � ,p %r �t' :,�1. < - � t'i ;.t :it {di'�i +•S r '�l� its �yy• �-r e ry ., -. .j '' , �. w s.} 3 r. i ,{t"' �4 a � _7 „ "' niT y y . �,x "7 t it4 •G gyp, ::a 4 Y�5,j - si '.�_. . -. _ .- ^N :`h �. ..�..- -- ,r« �.l{!�3." _- .m .•x,""_. '.�-*� �i'i a.r.:�'t ..t. ..�q .r�bt.M w..-. !K ... .sl (. ... .r..R ..- "1:':','"•'fif''ti,,457-7"7411. 4:?1,`P;•-10.,;,,f; • • I3ASIAItI)ANF I-. CITI''OF GALVFSTOi, 4 - 1213 1 - cite u 1li2F.2d 120a (1942) F f • may not be viewed by minors who are unac- channels of communication to the speaker.• 1 ':?`""",,.. a 14; armpanied by an adult.. A slate's power to Such a regulation does not violate the First "` ` . protect children against exposure to por- AmendmenL Ileffrvn v. ISKCON, 452 U.S. " nogrephy is considerably broader than its 610 101 S.CL 56 2�>59, 27, 69 L.F t 2d 29�i ,> , power to regulate materialproduced with t *� (o (1981); Schad, 101 S.Ct.. at 2186;• Hoists v. •and consumed b}• adults. New Yorli v- 1••er- Ccx)per, 336 U.S. 77, 8.--87, 69 S.Ct: 448, ,rf=� 2* ' lxr — U.S. , 102 S.Ct. 3348, , ,.72 432—3, 93 LEd. 513 (1949). In support of = H } r ;�' � -L.Fi 2cl (1982) (upholding the. imposi- ity argument that Ordinance 7 -1 patsies 4 • -t - 0 Lion of criminal penalties on the distribution open n adequate alternative channels, Calves- 'tS"'-•1` 4 F of,child.pornography that is not-obscene ton •relies on Young v.Arirrican Mini Thew- ) x` t,.'rr a* ., j � under Miller, supra). GI..FCC v, Pacifica r = -' ............ # `" '.. t.rt_�s, •Inc., •427 U.S!.50,-96' S.Ct-24l0,%49 / i ",'F'f1 7'. : ' ja a+'. Foundation, 438 U.S.•726,.98. S.Ct_ 3026, 57 LEd.2d-310 (1976). A. comparison of_the . +t, , . LEd.2d. 1073 (1978).(government's:interest _ cases reveals.that this reliance is misplaced. . ,... , -in shielding youths from.exposure to inde- = _ txnt language justifies a restraint on broad- In American Mini ThealreS the.Supreme-.• • ;r~. casters'.freedom .of.speech),: But here the Court upheld a zoning o• rdinance,that dis- ^�avtborities" are.,.prohibiting theaters from �rsed. adult theaters throughouL the city. • t�4••'•exhibiting films to adults,rather-than chit= An adult theater in Detroit could not.open- I --::dren. Many movies from 'which .unaccom- ate•within 1,000 feet of any other adult, t f ,' . .-partied•minors maybe excluded are consti- theater or other'regulated use.' The Su: - tutionally protected- expressions of free preme Court found no constitutional infir- • • 1 , speech for adults, See Ginsberg v.• New SLY in the application of Detroit'a zoning ` "" x7^'t� .York; 390 US. 629, 634-37, 88 S.Ct_ 1274, law to adult theaters. The Court rejected . • ,4!: :„ .. .s '1277179, 20 L.Ed2d 195 (1968). CI. Pinkus an argument that the dispersal require_ r nt.t =",v.'United States, 436 U.S. 293, 297, 98 S.Ct ments alone muzzled protected speech. 427 -- •- 1808,'1812, .56 L.Ed.2d 293 (1978) (children U.S. at 62---63, 96 S.Ct. at 2448-49. • are not part of the "community" by whose argues that -American Mini.- l „--. standards a work may be found obscene for: Theatres establishes the.constitutionality of -1:'! r, 2. r -- adults under-18 U.S.C. § 1461). ._By .peg- its own, ing ordinance because Galveston- r f.gingits definition of adult theaters to Tex- r modeled its law on the. Detroit.ordinance ll�, as law.on.obscenity for minors,Galveston's ' , a approved by the Supreme ('curt Although • k.. #='7t. r '• _ regulation of adult theaters sweeps broadly Galveston is not alone in;patterning a re-- • li d4, az 4r , .P g r- ,into the area protected by the First Amend- • e �,- rG� p ' striction on adult theaters on Detroit's dis- ; }x -. , ;` }',' ., lr`r /__.menu • persal ordinance,'.merely mimicking the or- 4x i r t, ' xh • ` . [15, 16] Galveston argues that there is • dinance.upheld in American Mini.Theatres F `' 'Y' ' -no restriction of First Amendment rights in' is not enough. . Galveston asks us.to over- *' ri p hz- this case because the ordinance simply regu- look the overriding fact that-the American °YI`Jr . _ ' , .'-- `4vi Tom', " 4 sti .K ac' : fates the time, place, and manner .of "the Mini Theatres ordinance did not substan- _ . t 'µ �, ,,7 operation of adult theaters.? A reasonable tinily exclude adult theaters from the city -r, 4.. � -Lme,place, and manner regulation restricts or significantly cut down on viewers' arrees y7` ' :- r ' r. . _:speech but leaves open adequate alternative to adult movies. See 427 U.S. at 62, 96 „ sy Y '' `. i +, p 'rk; ::.I, g T''caa w lub�� k Were we to agree that Ordinance 78-1 is ed uses included cabarets, establishments sell- 1- ,�. ,,+ + " - merely a time, place, and mariner regulation, , � ` g ing liquor;motels, pool halls, pawn shops, and "'n" '^ >�lr, :,:, •-..we would not apply the strict scrutiny test of ' shoeshine parlors. See Afnencan Mini 7hea- F� �" ' rp1 -..Schad v Borough of Mount Ephraim, supra. Ines, 427 U.S. at 53 n.3, 96 S.Ct. at 2444 n.3. 'Y Y ,s� 7 - •. .•See Globe Newspaper Co. v. Superior Court, � r -, x . -- U.S. —, n.17, 102 S.CL 2613, 2620 �, 'e') �"" 'sue " } "� a17,73 LEd.2d 248 (1982). 9- See Note, Developments in the law—Zoning._ �� +�'�""'* 91 hlarv.L.Rev. 1427, 1557(197R)("In the wake •t�R " ¢Lr � *� + 8- The regulation of adult theaters was part and of Mini Theatres, many municipalities enacted r, �`i1� ` `y #'1 - _ 1w r'7x�uc � l reel of an AnU�kid Row Ordinance by pornography zoning taws, usually Irn;taLing De- > s�� -'� "" r s - which Detroit strived to prevent the conCentra• trait by requiring adult business to be dis yam, 'y . cam utTM ,t -' lion of businesses deemed likely to cause dete persed"). • Y t� s =2? y} noratlon of adjacent areas. The other rcgulat- i . ,, M — • tF' _ nc_ ' t ..,nT�.. i y P ra -e.-': iieti.. : - a% - ' ti' nc` • ta9gg'9d ' .,ydi ' ft- z. r r p' y is , M' E i° '•r+i5 ? tl'y.. z .+' a c a ¢ w - r r• :,i. *M. 4`ee �ai:a��;� :'» Lx:a m - ; sI'r1e - .� '' .,Y?l " T- -' ." :.. :.r L',rsr• -:: -. -.• _ - . . . . • 1214 682 FEDERAL 1tEi'ORTEIL 2d RIE:.` I.. S.CL. at '241 (plurality opinion)." The the unattractiveness of those locations in 1. Court expressly recognized that "(tlhe situ- irrelevant. The court viewed the draw- ation would be quite different if the ordi- backs of opening a movie theater in an nance had the effect of suppressing. or industrial zone as simply the "reasonable :' [. - greatly restricting somas to, lawful speech." economic burden that befalls some activity ' • 427 U.S. at. 71 n,35, JG S.Ct. at 2,453 n.35. in evt•ry land-use program." 5]4 F.Supp. at . See .Schad v. Borough of Mount Kphraim, 982 (footnote omitted). A tolerance of ecer .. 101 S.Ct. at 2184, 2186 (noting that Ameri- nomic burden is appropriate in judging zon- " can Mini Theatres is limited to ordinances inEr onlinance that has no impact on pro- - that while regulating nevertheless preserve te•cted speech. But when a claim of sup- '. vrrjvss to protected speech). In contr.t_st, pression of speech is raised, an exclusive .3• Galveston has enacted a law that bans such focus on economic impact is improper. theaters rather than diaperses them- The "The inquiry for First Amendment pur- `- - law has the precise effect of suppressing poses is not concerned with economic im- _-•' speech that the Supreme Court recognized pact: rather, it looks only to the effect of •`� would create a different issue than was this ordinance upon freedom of expression." . faced in American Mini Theatres itself. American Mini Theatres, 427 U.S. at 78, 9G `• ' . The Galveston ordinance bans adult the-- S.Ct: at 2456(Powell, J., concurring). r i - tees outright from much of the city. The (18. 19) The effect of Ordinance 78-1 is A....- ' I - remaining areas of the city are off-limits if to render it all but impossible in Galveston , :-"� too close ,to certain structures Bu1t•u as• for a proprietor to open a theater to exhibit ' ,; churches, schools, and residential areas. /adult films or for patrons to attend them. • 1 Basiardanes introduced maps of the city in The district-court•erred in failing to con- : 1 ' evidence showing what oppressive options Bider the consequences of confining..adult •-:•-. ( • remained to an aspiring promoter of adult theaters to "-the most unattractive, inacces- ,.'4. i c: films.11 In the ten percent to fifteen per- Bible, and inconvenient areas •of a.city." •- '' ( cent of the city not categorically banned, •Deerfield Medical Center v. City of Deer- . -• 1 .adult theaters'may operate only in the in- field Beach,.661 F2d at 336 (holding that....• ' 1 I- dustrial zones at a great distance from oth- the resj,riction of abortion facilities to uncle,-, • 4 er•c onsumeroriented establishments Few sirable areas places`a significant burden on ;: •access.roads lead.to the permitted locations,. .a woman's derision .whether to .has •f'i• -which -are founds among warehouses,'ship- abortion).- Viewing Ordinance 38-1 in light,- - f .yards, .flndeveloped:. areas, and •:Bwamps of its impact on free speech, it is clear• ,tha -. 'These;locations are_poorly':lit,;barren -of.'..the ordinance drasti •cally.impairs the avail- • . _ - structures ;suitable'for showing films;'and' •:'bility in •Galveston•of.films protected for: = perhaps unsafe:'In theory they are avails- -adult viewing by the,first:Amendmen' -. ,ble to'adult movie proprietors and patrons, . Galve_st.on'a ordinanoe-thus cannot"lie s-us:•'j• ` • - but.in tact they are completely,unsuited• .twined as a reasonable time;place;an�:man- ;-;:a:. this use_- • - -•- -••••-...:-...... ....... _ .• ,• ' t< � . . , -nee regulation-undec•American•btini Thes•; � :e ' r -` -,[171. The district court held that as long •-try, supra-"Instead,.ive must test the'ordi' = - •N s_ as some space within the-city limits of Gal- fiance under the more stringentstandard of ''• c veston is available for adult movie theaters, Schad v. Borough of ML Ephraim, supra in'',- .: _ • _ 10. -Justice Powell separately concurred in the : S.Ct. at 2456-57 (the ordinance-does.•not tn-y-.� : - • judgment in American Mini Theatres, thus fur- •volve any significant overall'curtailment.pf'- -' ;= : F "' "i i- - • rushing the vote necessary for a majority of the adult movie-.presentations, or-the opportunity' '-j. i.t �. �xy e- — Court. :Nevertheless, Justice Powell expressly -for the message to reach an audience,').:-- r r r .. -. - -' concurred in the portion of•the plurality opin- `' = �{=' � ion noting that American Mini Theatres did not II. .One theater;the Broadway Theatre, continue:: ;F_,_ sfi' involve a.,significant restraint of speech or of ties to show X-rated films (those to which mi-- • t- ' - ' , viewer access to speech. See 4,27 U.S.at 73.96 ours may not be admitted under the mption'.;, -, S,CL at 2453-54 (Powell, J., concurringin part indust ' "" --picturery's own rules)-under a gra • � , c to 11 of the Courts opinion): id at-78 79, 96 'her clause in the ordinance:,; -..>.;•:iSr: . - «a.4 =,.- x-sA s. T �''.r : "e Yr r It • r .s wp 'T * ,'+g.& r44,,z. • • 1. 4, ". r s �.,�n'fir-^Nri'i-., �„� r r".f4 i+�4 . F " .. 14 t .. ` -�w.. n a' 'M: -..f•.. 7' t-rw' _F. ."14`r+,s' + " Y fix-• .t'„r .r 7� `•"+cf' .t ,. 'fr '�ii. pro tb"' ' �•,„.4.4, ., `! `+i4•Ti•s: t lz. -- :i1:- �:c ,* .»'- ,„ ��'.%P'�! ' ;"��t i r• *�^sg.: �F +•• w't ,,' 1.4,1- ,,, YT {'pC,y • tidy-, L a _ 3y� •}'-•C�-:•. ,.r,sf _:.,it', 3` ` t xr. i. n� n9 ht" .3b"•+e. - '� 4 1,1, .t 'r - ��--i�+�-' 5�^FP�� -4 1..•n� ;: .. _rc_�� _ -_•i-. s ..- .^.�"L i_ _._i._ ,.......„��s?�`.�r:#.��.4.tAoi...L .. .. '.��t w�,.t.N.' f;': i *� . ,, .rrn.any ��y'•�,,V lii •• F t d _h Y-.a+ ar Li. F r" IJASIAIRDANES v. CITY OF GALVI•;.ti•l oN t GreuB,t:r_2d1203 (tag2o Ill i - ( - which the zoning ordinance prohibited live asserted reason, given in support of an entertainment in the city. ordinance that restricted First Amendment • : '` - j20) Schad directs us to examine the rights); Av ton Cinent:, Corp. -- strength and legitimacy of the •ovcrnmen_ r, Cor t ►. Thuml nn, r > Y g, GG7 1'.,cl G,.1, (%C,] (2ilh Cir. 191i1 •.� F L' tai interest behind the ordinance and the (relying;on the city's fsilurc to prove dcictt•- > *, r``sc?-•• pnuciston . with which the ordinance is rious effects of adult.thcutert in slrikin • .. r drawn.. Unless the ordinance advanct sip_ down an adult theater ordinance); fitvgn nificantgovernmental interests and accorn- ;i:4i . Harbor Co. t.. City of Ke go Harbor, G5? ` , pushes such advancement without undue Pal 94, 98 (6lh Cir. 19 it (nxjui�ing; the ; rcwlrainl of speech, the ordinance is invalid. city to prove its justification for burdening .. lUlS.Ct_ atl18 • " We conclude that First Amendment right'; of adult theater ' • Ordinance 78-1 is neither. motivated by a ,operators). • i•Y•t«M • ... sufGcicnt governmental - " ' ''F 8o mental interest, nor oar- Still limiting our inquiry '' '` 1 ry at the moment • ''" Amendment to governmental intent, there is.no:evi-.. 4, , - dence in the record that the Galveston City!. •' '`' '?` ;.-As to the showing of governmental inter-, Council passed Ordinance 78-1 after careful., • • x •est, the avowed reason for Ordinance.78-1 .. consideration `' • —' is to arrest deterioration of the downtown or study of the effects of n adult theaters on urban life, �`4+' a ` '� •area and to prevent and curtail crime. The ed nexus between crime and atilt heaters :• ' ; w -mayor of".Galveston;testified that•he saw = " link between the deterioration of the down- appears premised solely upon the sEiec "� hl"" F _ ulatiop of Galveston city officials. Even at �r`4� 'NI "pi.'' town area and the opening up of an adult . t �: . IV:11 theater. ::In the mayor'a eyes, the efforts of trial,Galveston offered no evidence of what vices would flourish if adult theaters were • s 1 r •• t: ,spki :� r <"'-Galveston to restore the troubled downtown allowed downtown.:. area would be thwarted by the entry of'an - � ' r•w ,,ar{ • adult theater into the heart, of the. zone • a This paucity of evidence stands in sharp a &ram!%; < • • ' targeted for renovation. Ordinance .78-1 . •contrast to the facts of American Mini The-• € + �r t Purported to respondtl i�t .. to the concern for the ° In that case, the Detroit Common •' `'' ^" fAM ry .' ..•.adverse effects of adult theaters byCaar► 1 had heard extensive ( }��jt diapers- tuive testimony be- I �P� {� ;: x,�; t . rag those- theaters throughout the city, lore it enacted an adult theater ordinance. d t 'it •,.4:- . The Detroit Council considered the studies ' x 't =[21]' The rehabilitation of blighted ur-gof sociologists and urban , . ,, �'. arras and the use of zoning to accom_ planners on the - ::,� _ Push renewal are legitimate goals for consequences of allowing concentrations of - ,* 4 � �s` t. adult theaters Only after its consideration �` } ' tsar a Ash urban An adult theater ordinance that :- `" furthers such goals satisfies .the initial re- t. dtd Detroit decide to disgxrse them. Amer: 'i- riaart Mini The.stre 427 II.S. at quirement that the city have a substantial 'p"' �' `�'-g s 80 n 96 . r h ` S.Ct. at 2457 s ' ,' 4 , state in•terest to support a law restrictingn.4 (Powell, J.. concurring). °` t r .free speech.0 The Council's findings were crucial to the n k l`" - ' - Supreme Court in upholding i '�' 122). The assertion of a state interest, ordinance. See id. at 5,5, 80, 96 S Ct Detroit.at . lac T" c~ six., -howe•ver, is not.enough. Schad v. Borough �$5, 2457. Here, the cm • ' �°thitEphraim, empty record before �• °_ 101 S.Ct. at 2184. The city the Galveston City Council when it decided must buttress its assertion with evidence 'a that to regulate adult theaters undermines its the state interest has a basis in fact contention that the ordinance• in fact fur- h YY ---and t `# rx. -- . ipm.: that the factual basis was considered b =- -r..:.�-ems the passing by thi rs the goal of rchnbilit tting the down- '. = ,•ar cF i ._ . t eScity-_in assin the ordinance. Id. at , town area. No evidence was introduced to �' i. 4'• (rejecting, for want of a factual basis, supplement or bolster. the City Council's itI�.14�}�}-��3j It See.American Alin]7hearres�427 U.S. at 71 traUuns of a ►fxtr �'''"" "& ° e 96 S.Ct_ at 2452-n & n.34 dult theater, and that such a , (plurality must be accorded "high reap it"); id. at 80, 96 ' sF' o ,v, t ' opinion noting that Detrtiit'a adult theater ordi• imciiit °ice aimed at -the seconds S.Ct.at 2457(Powell,3.•iuncurnr:l and noting `+ s secondary effects"—our• that Detroit's ordinance served '•unportant and �L - 8 crime and promoting blight—of substantial"interests). s },ys ..^ 4? -. j ( _ # r'P', 't.Y!,ir s _ 'a •"x $"•- '`r -�y, . '`'"'. - t pPf r-4;:"zr - c.+ . :ir^a>P f S� k I�� .— _ fi A„ ' �`v r r. vt 1:7a ¢} '; 7* '-f•-a f ""rt _ 5..,_v_ _<.,- _ lair. ._ ...•3,:-,. - _ S.:v..__ .,-�: ..:t5kF.°-.,....•:`.. .a r ' CS2 FF,DF.RAI, RF.I'ORTF;It 2d Rl'f:ti 1216 . ; ;1' _ I f assumption that one adult theater located ordnance regulated nine uses viewed a• -I 1 downtown and urban blight -are linked. causes of blight in addition to adult then- The• timing of the ordinance's passage tern). Galveston need not tackle all of its 1 also cants doubt on the relationship between zoning problems at once, see 'Railway F'x • - . the.ordinance and its alleged purpose. See press Agency, Inc. v. New York. 8.36 U.S. ; Avalon Cinema Corp..G67 F.241 at 661. Gal- l0G, 69 S.Ct. 4G3, 93 L.M. 533 (1949). Thi: 1 •vcston had no caning' restrictions on adult City'n exclusive attention to adult theaters, • ... theutern until lia iardanes announced the however, cuts against the argument that • 1 C - - - Opening of a theater across the street from Ordinance 78 1 is motivated t..o protect the - ; I the Grand Opera House. The Grand Opera urban environment against dec:,_ 11 :_' House is a major and expensive project it; • . Galveston's redevelopment plan. The tu•- (23]' In sum, we conclude that Galveston • -� = quencx . of events strongly suggests that has not sustained its burden of showing Galveston reacted to Basiardancs' proposed that Ordinance 78-1 responds to the tad- '. 7="-_'=;= '- 'theater because of its location, not because• verse effects of adult theaters rather-thun ..• _.4. ' ""-1- - _ of the City's concern with urban deteriori- to a perceived unpleasantness in having an " .` Lion. adult theater downtown. c . : # x a The protection of the Grand Opera -_" [241- Even assuming our.conclusion was House's attractiveness to patrons is a legiti otherwise on the showing • /mate goal." But it is,not.one with the of governmental -I c. - same weight as the preservation of inner interest, we would still be unable to sustain the constitutionality.of Ordinance 78-1.. To a cities against crime and blight, nor is it one z that entitles the City to squelch free a ct h. survive judicial scrutiny, the City must also. I The history of Ordinance 78 1 leads us to show.the ordinance is narrowly drawn to conclude that the City's motive was to re- serve a legitimate government intereest with move Basiardanes' adult theater from the only the minimum. intrusion upon First :,� Amendment freedoms- Schad, 101 S.CL at -vicinity of.the opera house because of•ap- - prehension that an adult theater. would 2186, Village of Schaumburg v. Citizens for -'.�� , drive patrons away. 'This history does not - a Better Environment., 444 U.S. 620, .ta"37, support Galveston claim that it was mot/- tar S.Ct. 826, 836, 63 L.Ed2d 73 .(1980). ' s _ _vated.by-the.crune--and .blight-•problems" .Ordinance ?8-1 restricts speech much more. , : broadly than is nt viry to achieve its ai- f . j.'• •.finally;=•the:narrow focus.Of...the-ordi-. . sei-ted-purposes . .. . . .. •nance.'.on•.adult..theate s-.and;.bookstores . . . . . . ••_.;.: .�:.•, _•.-...-......... - r .,:alone nders..suspect-.tbe'City's claim that '•Ordinance-78-1..does.'fair.,more_than':to. 1 .1; ::..the ordinance'-.aimed.to cure.the:deteriora-:.regulate-obscene movies;or.sexuaIly-explic-_:-�' • _.tion(Attie downtown. -.As.far as the record.`,it.movies that_are_abeltered,hy-the:first_ . shows, Galveston:places. no zoning restric- Amendment.altbough.bordering•on the-ob- • - --lions-on •bars awn w-sho or:. scene.. Galveston: ''the•cos of•:,+. 1 - . _ pool �halls,•P shops,. C1"d-gee- i . vtassage.,:parlors:.:-Bather, Galveston' has its.ordinance by reference:to.Texiis-law,on.- t .•trained its sights solely on theaters exhibit- :.,what adults..believe is-undesirable viewing :_ ;.:'.•- :- • ' . -.1ng films.that.en joy First Amendment pro- for minors without parental consent;The': j • Y.: .tect.ion. 'Cl •.American Mini Theatres, 427 ordinance thus reaches many films that are. __ - r , • . U.S. at 53--54, 96 S.Ct. at 2144-45 (Detroit far •removed from what`is• colloquially • .- i . 13. We do not,of course,pass upon the obvious dispersed regulated uses not including-adult..Z. . I — .-*- hypothetical undertaking to protect the opera theaters-for ten years in its Anti-Skid Row';_._ i __' : house •through condemnation of nearby areas Ordinance before deciding to add adult theaters-.4 `r`^ - ' under thepower of eminent domain ora to the list of regulated businesses.• 427 U.S. at by g ` i :.'ze" ;:;.. narrowly drawn zoning ordinance protecting 53-54, 96 S.Ct. at 2444-45. •Detroit officials•=;- , the immediate vicinity of the opera house from • had thus made clear their concern with urban', ' -- . various undesirable businesses. adverse:* *• *-:-; " blight long before deciding to halt the adve:" -; M'' - • effects attributed to concentrations of.adult.•.4. 14. Again, the ordinance in American Mini The- theaters. ` 3 -atresst.ands on a different footing. Detroit had -. +_ _ - • _.-�5:^""-"-, - '!•Y't "+`s,z ..sir _.e. TP�'�* • ,e'src• "- -'u-.�.'�i'y"-t_�.,-'.xy+.c.,,.,�-_''C may • y.w- t'_ 41 • ,y .r i lf r "a; {/... 'i3;*' - - r'' "1•4:7-44. 4 "y su'"IK � s Aaj.... ,•4 •��,-• f 3: . 04 M 'c 47. csat��-1� _ 7 � � } F 'ic �,tk= i. e4'' ..; .=- r�- ; " 4} ,- �'.`1- _ _ _L-- e-' ..i ei Y �,:..i . _,,.� . Z_.Y ueR� 3- t- +1.- '7.`t* r___ wi_- • v s °r] c._'P °.3.z33 r s ., +3 z,,,- C" Y % 1 • a z s. '- .), i" S`? ng "S .m • ' `,d. "� ;-rE- .n,= •- a t ' � I- ` _ - , � " yi% -.. . ,4- -- e., x�ttes r�u w� � ur " 'c'e ? a6= _ "4a" .; -+ . i?F,..:1!.. c .,.., c: . t,en�`CfP- .�: .!iC ..0 . j� I. .1L .i . �;, i rt" • i BASI'AIZI)ANES v. CITY OF GALVI•'STON 1217 '!� 'r tirr a1 6r{2 t•.,2d 1201 (19n21 te:rnt(r1 "hard con:," or even "soft core," extent as an adult theater showing filnra on =r 'lxunograph:,. the •fringe of the obscene. Whatever cyon- ?"' (2i( Basiardanes himself proposed to nection there is between crime or blight and adult theaters, the requisite connection is r: ` • exhibit only "adult movies," lawful but of 1 - the more explicit variety. Neverthelcs surely.missing with reayix:ct"to popular but • under the First. Amendment overbreadth sexually oriented films, which are covered doctrine, he is entitled to argue that the by Ordinance 78 1.1� The scope of Ordi- mance 78-1 cxcec(is any legitimate govern- N` ordinance is unconstitutional as applied to ` other theater operators whose fare, though mental purpos in upgrading the downtown ri - - sexually graphic and subject to the ordi- and preventing crime. •Iieeutuse Ordinance. - } • 1 nance, falls in the mainstream of Americap 78 1 is far more restrictive than ne es_sa y' ;r - "film entertainment. . Schad, 101 S.CL at le achieve its purported goals; it violates._ l • 2181 (exhibitor of nude dancing may raise the First Amendment- -'• •-": :.`,11 •- +' • • r. the .First_ Amendment .claims:-of-.theaters -1 • It must be made totally clear that this r- - i T •and concert halls to.attack.an ..ordinance ordinance; through the guise of regulation, "• i •:1 f • - prohibiting all live entertainment)- The banned theaters showing motion pictures overbreadth of Ordinance .78-1- is real. and that admittedly.could be shown with corn- substantial in. relation to its-legitimate_ plete-legality to every person in Galveston • _' ' L_ . ,,scope, if any_:.Broadrick•v. Oklahoma, 413 ' seventeen years of age and over. . The in- i+r.,s�, • . U.S. 601, 93 S-Ct.• 2908," 37 L.Ed2d 830 1 ;V4.,1 trusion upon First Amendment rights is , +a 4, - (1973). manifest- ' �1: t v Many works that might be classified as - • IV- Permit Requirement � 1 ',Y , ° ,1„ olsene for minors, and therefore regulated ^rr �7 ` Ordinance 78-1-authorizes the establish- h+It • r -by Ordinance 78-1, are works of merit.Lo i L. - adults.- The Supreme Court has condemned merit of an adult theater in a qualified is z location only after the City Council grants a c .- a state law under which a defendant was -permit specifically sanctioning such a use. ! ' prosecuted for selling to an adult a book Section 52(b),quoted at 514 FSupp•-at 985. - 1 M - that was obscene to children. Butler v. ' BOiti danes challenges the permit scheme '"- Michigan, 352 U.S. 380, 77 S-CL 524, 1 } as vesting, undue discretion in public offi- E . L.Ed2d 412 (1957): -The Court -reasoned ry ., cials in vidlation of the First Amendment. '1,3r 3 t •_ that such a law would reduce the adult i • population _. - to reading only what is fitSees e.g., Shuttlesworth v, City of Birming- � 1 ? • 4. for children." . Id. at 3R3,- 77.S.Ct. at 526. ham, 394 U.S. 147, 89 S-Ct_ 935, 22 L.Ed2d ir it r ," $ - 162(1969); Freedman v, Maryland,380 U.S. 4, Galveston s ordinance has a similar effect 51,85 S.Ct- 734, 13 L-Ed-2d 649 (1965): The '-(' •Wi (: r ., on adults who view films- �tv x ,, district court held that Basiardanes lacked ; •4'4l • - [26] American theaters today commonly standing to raise this claim because-'the ' i' +-f3 exhibit a broad range of films that may be -.r 4 ''tea - 3's � £' permit scheme had no effect on him. * ¢ r unfit for children without in any way con- i" - -•. •i5t`' tributing to urban• blight or promoting [27,281 At oral argument, Basiardanes • Ti ! ek� °-••'r '• • -crime-1� Yet theaters showing these movies conceded that he lacks standing to attack .,tr '` '' ` . z +:mac wrr E,,.t t7 -are subject to Ordinance 78-1 to the same the permit system, and this concession was •4,•t ,. �, • 15. Basiardanes has pointed to "Last Tango in 16. The mayor of Galveston acknowledged that }# °�^ .s'` "-.r Paris," which received an X-rating from the R-rated films,to which youths may be admitted ..A "k ,x' ;' a Motion Picture Association of America, and only when accompanied by a parent or guardi- iii. �-.•� ,: 3 ,: t Midnight Cowboy," which received an R-rat- an, Erznoznik v. City of Jacksonville, 422 U.S. c;.,, - 4 -�� ing•, as films that deal explicitly with sex in a at 206 n.l, 95 S.Ct. at 2271 n.1, are not con- t +?'`'..',rg'r-r l'4 ••4icr' ,, fashion that may lead a,state to shield them sidered by the City Council to cause urban ;,� h } « �' + from minors, but whose very popularity ne- blight. While the R-rating has no relation to : • } *,}# rY • gates any nation that they pose a threat to the the standard of Ordinance 78-1, many films t n 1s health of a city. 'The ordinance at issue here rated R could be subject to 7&-l. c +_sw does not refer to the film industrystandards, ''x ;""�"� "t 'r"" 1N { -+1- �+^ye,y c.,r ,::.fie' �. and we do not rely on them in concluding that L fr �-'` ,t `n fi Ordinance 78-1 is unduly restrictive_ , _r ,_.4, 1'', "-^ r n wyx� is.. Y'I`d 1 ..� ..;w 1..L#.ice,. .r,�,.(^[,,�' '� v ..-.r. d•- ;... s"x, .e'. sf t r 1 y ^ys ,.x.' %i''d 1 -,r_._...... ,-},-,.+,. + _ ...,,'a:"A✓. ,r+: , F,,,,r „---_ a 9 k '.,- f -'•,p. . -r Tor. it ?' ,�,++ - _ �� ::;,:..„....',..............,,,-.. .•,,,...:? -� —war+, ' g„.. . 1* tG ,, �.. y: k%-aa` a m'•� , 1' '^f-t? „,, — 'r1t r•'. `--• „<E .. ,:,r4„..�'r:,.,,.. ,Xtsytr, y�wr,,,,ry .. .... . ,,. z may_ Y `3`..r.trx r •.2+�.'" j iwimmil i•• . • 1218 _ 682 FEDERAL REi'ORTER 2d SI ;S correct. We are concerned in this suit with shall not be shown or exhibited so as to be retrospective, not prospective, relief. lin- visible to the public from any street, side- r! siardanea does not suck injunctive relief in walk, or other public place." Ordinance • 4: t • • _ - his capacity as a building owner, and we 78-1, . Section 52(axiii), quoted at 514 .� have held above that he does not have 1•'.Supp. at 9;�1. Basiardanes contends that - —' standing. to seek injunctive relief in his this absolute drawing of the curtains on , 1 capacity as a film viewer. This remains a adult theaters'advertising excetivivcly regu- ~• suit only for money damages. The alleged latex commercial rlx•ech in y'iolntion of the s - damages were caused by Ordinance 78- 1's l•'irst Amendment - denial to Basiardanes of his freedom to f 31) The district -court denied liasiar- •• lease his building for use to an adult then• chines standing to challenge-the advertising : ' ter. Basiardanes has standing, therefore, restriction. The court apparently believed . • • to challenge the ordinance only insofar as that Basiardanes had standing to challenge • T he suffered damages from the ordinance's provisions of the ordinance only if they x i effect on his use of the building or other- affected his property. In the court's view, wise suffered a restraint of his First the advertising ban had not "operated "t d Amendment rights. • against [liasiardanes'j property interest."ie • �r• • [29,30] The ordinance precluded Basiar- 514 F.Supp. at 979. We hold.that the ad- :. • • dares from obtaining lease revenues from vertising ban had-an .actual•and specific. - . °,-: I- Universal. Amusements Company because _ impact on Basiardanes' .First Amendment ` l of the dispersal provisions alone. The rights,giving him standing to challenge the t mit system played no role in causing the,:'e,`' ban•. .• , i ( f -r . • injuries Basiardanes has alleged. Basiar- After entering into the lease with Uni- t • danes did not actually apply for a permit, versa! Amusements Company, Basiardanes . c . nor did the threat of unchanneled discretion posted.a sign advising•the,public of his • - , 4. in Galveston city officials deter him from plans to bring adult entertainment to down= '•i : (1 engaging in activity protected by the First town Galveston. -Galveston • quickly im- ' tr LI Amendinentll . There is,therefore, no basis -.posed a moratorium on downtown building:. • ',_. d dr - in'this damages.action for undertaking to:. permits and also pressured.Basiardanes •to- .. ; 1 sf adjudicate the.:constitutionality.•of Galves-: remove his sign. - The sign had-borne ndth-: '.•:-.'..:• • G • • ton's,permit system •ing more than the legend "Adult.Theater.", - cc " - At trial,Basiardanes testified that he•-would - hi - .V.'.'Advertising Ban:.;•..:••••.••`._ - have" reported -the sign,.in anticipation°of; f tic -,--Basiardanes'...final challenge'is 4o the ad- .winning:this lawsuit,'but,,for;the advertis;.. _ m ban in Ordinanoe'78=11::- -_ - .vcrtising ban in•Ordinanoo,78-1:,•:The ordi- ing `f'.rc '�''�T �r is y _ . nance provides that".ja}dvertisementsr dis- •• j32-.3•1] T'he'advertising�ban-restrained .` I ,.-,r.• _ _ plays, or other promotional.materials for an - Basiardanes from-.placing t}ie:sign-,on his :z.0 -.• ( ?'>> .- adult bookstore 'or adult picture theater " building."• Allegations=of infringernents•of ' " - ( ' k-. - . •. -' •,•.. ..l;,^•'-.:- 3: :r-,-•—. :::,�:., • . _- - :.:•:,.•-' :•:• •,c??-:ecb;es'1�C:ro.:S.7•i,!_*.::ak�.r•.i-_ • 1 r`` ' 17. . It is; of course, well setUed that a litigant • lion scheme-was oo•.-contingent..to•confer_ T. • s I'V w- who is up to the point of needing a permit has standing upon a litigant-who.had not yet 4_~ • a _ :_ _a _g standing to challenge the permit scheme even obtained a permit. 663 F2d at 626. '' r ', without applying for a permit. Freedman v. F llfaryland,-380 U.S. at 56, 85 S.Ct at 737-38; . 18. The court in a footnote, how- n ,sisKam` g`-.•- sy Beckerman v. City of Tupelo,G(i4 F.2d 502, 625 ever,that it viewed the advertising ban as"pat- - v : (5th Cie-. 198]). Not every anticipatory chat- ently unconstitutional."- 514 F.Supp., at 979 , lenge to a permit scheme, however, is justicia- n.8• • _. : • _ , ,c 2G• -v.. _ ble. For example,in Fernandes v. Limmer,663 - -" _ •:.. IR • F2d 619(5th Cir. 1981),we held that the plain- 19, Basiardanes.need not have flouted. Ordi -,y•;r r . tiff had standing to challenge a scheme for nance 78-1 an order to have staading to chal-::: { granting permits even though she had not ap- plied lenge it. Laws restraining First.Amendment :'5� �= for one, but denied her standing to chat- rights may be challenged by those who allege a ' - 3 r lenge the scheme for revoking permits. • We desire to engage in the proscribed or regulated . -Z- • • S►Y- +ter reasoned that the threat posed by the revoca- activities although theyhave no_ .. — 1; i,yet done so. :. W.- .- ' . . _ . ... _- .: •'-'-' S e = - a *, -'�' b._ ir._--+ . �1. -c-- .c` r`, .r x 44 *" ..% 'S`+!A •�ti -af-T z � 9 't- r .,..-- ,• ,- .a .. r ,fi -s ,.t s,-- - � r 94-=•- -3 " ; ,- w•,"7-± _ --' "r "". ter ' . ✓� * ' -'- -- y� �^'. (•� ,�, .' �„r-.' '�^. qr 7 ..z,+*.•-.w. sn�^.. «.ro`'r-r 7",`" ` - �.°3`"'S 4' r _+•.i,�".^' .r.w ', t.,.... --.:.-_- n -q-, �ti�(.,�Y�G. •,Y-L y ley' }n {',..� Y. �51 �,,.. _ S_�' A} y I ?}I� "- +F meµ •' ._„ :47' l J .Y i 474.ix'+e,•-.0. 9 L *.4 h . F TS' Xk,..„, L •I� ytY1, - +'•tt .q1 t6 + i0 'R.. .-4- i••: . --_ �, a � r�YYI1,' ;� j J. .�rcr' w : ?.•..'n:S� ,..-x.._r...i.. i,A .. JP ._._.:s....,.. ..•-. .. `i3ti�4..,.-,_ :.cr•'1�'+ -R'4 _.__a+.z.:,... • • • • l ` t o I' I3ASIARI)ANl•;S v.'CITY OF (.AI,VESTO\ 1219 F'. M_ Cite as 682 F.2d 1203 (1002) 1. 4•- • free speech, of course, may be redressed - anal Hudson Gas v, Public Service Commis- ' 1 under the civil rights laws. Douglas v. City lion, 447 U.S- at 5(it-,, 100 S.Ct. at 2151.- See �- 1s ofJcanncttc, 319 U.S. 157, 162, 63 S.CL 877, also In Re. R.if,J., 102 S.CL at 2892 (plurali- 4 e 880, 87 L-IAL_1321 (19-13). Accordingly, we ty opinion). Applying this analysis to Gal- ',•', ` ` -z:. turn to the merits of Basiardanes' claim- veston's restraint on adult theater advents- .1.7 i . f 35•�37) Commercial speech, once exclud- ing, we conclude that the restraint is consti- ,dIf "t,•{.,• ,. ri ed from the coverage of the First Amend- tutionally infirm. k >? • . ment, now enjoys constitutional protection.r. = , Virginia State Board of Pharmacy v. Vir- [3�1), Galveston offered no-justifies- , -p;c s, `r =' '' '= ginia 'Citizens Consumer-Council, supra. the in its brief self Ls advertising ban seal : ? � , -.�1�.:r,.,:2 .. See In Re R1ifJ-, = U.S. 102 S.CL the ordinance .itself,gives no-clue .of its t ya �4 � , • ; K *` purpose.. . Trial testimony suggc�ts ,..flow-. � § .�, 929,.71 LEd2d 64-(1982); Central.Hudsonr - Gas Co. v.-Public Service Commission, 447 ever, that:Galveston was attempting Co U.S_ 557, 100 S.Ct 2343,.65 L Ed2ci 341 " shield the public from lurid advertisements r #fi t or sexual! ex licit films,,..Tb in -r � ' ., -• (1 ); Linmark Associates,.Inc(,'v. Town Y- P e- ter�st in 1 • so-doing, is .both..strong and. le timate.. I • ship of Willingboro, 431 U.S. 85,•97 S-Ct. $t 1614, 52 L F.d2d 155 (1977);• United State— Provocative posters depicting the celluloid p ,•'�> may be delights within an adult theater - - Postal Service v. Athens Products, Ltd.,654 , Fed 362 (5th Cir. 1981), cert. denied, _ kept from the eyes of minors, at the least, • • ; -i - New York v. Ferber; supra,•FCC v, pac fi- �k;'. U.S.0 , 102 S-Ct 1768, 72 L.Ed2d 173 . .,' 1 ca Foundation, supra. Moreover, a ban di- p ( �). State and local governments have r . freer. rein to regulate commercial.speech redly serves that governmental interest. e, •than litical or expressive speech, The prevention of advertising keeps sexual- po however. ly explicit posters off the streets...But the. - ' a_ See Metromedia, Inc v.-City of San Diego, •1egulation in this case faits to serve this. } _ a:.e El' 453 U.S. 490. i01 S-Ct. ?AR?, 69 L.Ed2d 800r (1981) (upholding the prohibition of. corn- written,interest narrowly.2. . The ordinance, as „��� `hr • mercial speech on billboards but. striking written, prohibits even a simple sign an- _. nu s it.- down the' prohibition of. noncommercial nocfncing the existence of an adult theater. 4 t ++ r , : .s The sign posted byBasiardanes did no , ::" . j • `" 1" 1_ peech_ on' billboards). Recent Supreme srrrms i'} +,{ ,, ; t tr.-- Court cases teach that to regulate truthful more' Such a restraint goes far beyond the r ,r k7 < ' City's legitimate interest The absolute iL x ,^` yt. 4" commercial speech, the government must a ,, N proscription of"adult theater street adver "r { have a substantial interest that the regula- �� r n ,$1'1 lion using cannot be sustained. � ,? � directly advances. In addition, the x tr"t�"'1 w!'v rt"�a X a tia +rt i%..- regulation must be no"more extensive-than [42-45] yy F 'r.:'- , Our conclusion that the adver- .. m^f x,� SAS c '''''.1';': 5• _ss necessary to serve that interest" Gen- tiling ban is unconstitutional does not imply• ;� � Beckerman v. City of 7Lpefo,Cf�4 F.2d 502,506 w,;,e? ,, 'rk Question: This paragraph really goes far be- 1• -nl � --. •(5th Cir_ 1981), For example, in Hynes v, May- I'.'7; 4 a -r c5 '.'ck y yond the intentions of City Council; isn't = a r `•-Y-•- or of Oradell. 425 U.S. 810, 96 S.Ct.•1755, 48 � =-.r � _ L Ed.2d 243 (1976), plaintiffs alleged that theythat true. a Answer: I would guess it does. �+ ;t ' ?x � „'.r+, wished to campaign door-to-door, but made no x l � z u P , y' " allegation that they had actually begun to cam- 21. If Galveston adopted its ban on advertising t ii4 - -Pa-ign in this manner- Nevertheless, the Su- as a means to prevent people from attending _ t'* � • ' •- Pre me Court allowed them to challenge an ordi- adult films, the ban Is flatly invalid. A city ' � 3,ya�.- 'lance requiring a permit before one could can- cannot restrict truthful commercial speech be- t-r• �" ' �"�,.„sass door-to-door. '^ ,�c'r 5 .¢ 3 , cause the city "is fearful of that information's s` } *' 6: effect on its disseminator and its recipients." `"s , s9na z w ` ' 20• The Mayor of Galveston acknowledged as Metromedia, ,one- v. City of San Diego, 101 x Much at trial;, %' r '� 1i sY Y S.Ct_ at 2191 (plurality opinion}; L'nmark As- - , rl ','4 a "%, ',h �,! - Question: And isn't it true that this portion �� t `t 7 �R6 yet of the ordinance isn't directed at, say gar- sociates v. Wiling doro, 431 U.S. at 98, 97 S.Ct. lsh signs; at 1620 (striking down a ban on "for. sale" '.., 4 1.ri- �N:74 t "T - R.• gns; It is directed at all signs that signs on property, which ban w-as designed to "▪mo t .. x`have nothing to do with urban blight, nosh- s in to do with signsstem racial bloekbusting). Galveston must aim - -r� i r' > ;� g that are distasteful to at legitimate' and substantial purposes when 4,s, i1 'el- the public? -• 7-7, a Tsai �-; t - Answer. 1 would say so. restricting commercial speech. _fir-• - - - i i ` . ,.a4" k... 1 ,...-.C 1wK cm �IG� aticis mi�ipwr rr - --rn -,..- 'r�.�"sr-•j;'.,,`-4•-eauS,F�r q'P • j ♦ - ' - 682 FEDERAL REPORTER. 2d SERIFS ' 1220 that Baaiardanea can recover substantial Second. the ordinance's total prohibition of i damages for the violation of his rights. adult-theater advertising visible from the Damages may tie recovered only upon a street impermissibly restrains commercial i showing of actual injury. For a violation of speech. For this.constitutional violation, • the First Amendment unaccompanied by Basiardanes is entitled to nominal damages. . i any real injury, a plaintiff may-recover only Third. liasiardanes lacks standing to chat- •• nominal damages. Fomiliav tlnirim v. Nris- lenge Ordinance 78 1 for vaguencav, and • cue, G19 F.241 391, 402 (5th Cir. 1980). Ar- also lacks standing to challenge the permit • I- - cord: Kincaid v. Rusk, 670 F.2d 737,•740 scheme of the ordinance. The judgment of _.' (7th Cir. 1982); ldfurrnt• v. Board of Trus- the district court is affirmed in part and ; - .-- - ' tees, 659 F2d 77, 79.(6th Cir. 1981)." See reversed in part, and the case remanded. Carel, v. Piphus, 435 U.S. 217,98•S.Ct 10•12, AFFIRMED IN PART, REVERSEU IN • . • 55 L.Ed.2d 2,92 (1978). . Our review of the ,'ART, ANI) REMANI)EJ). ' t .' ; record fails to disclose that Basiardanes hats - • shown any-actual injury as a result'of the ' advertising ban. We therefore hold that he o uT■urelasrsnY `Vi is entitled only to nominal.damages for the t . . . unconstitutional restraint of his commercial ii •speech rights?= We note, however, that an - . A. •attorneys' fees award may be supporbt d by ;• :, an "award of nominal damages since the . 4 successful claim serves to vindicate consti- Adaline V. KINCAID, Plaintiff-Appellee, , t • tutional rights. Carey v. Piphus, 435 U.S. .. v. 5. 'at 257 n.11; 98 S.Ct. at-1049 n.11; Milwe v. UNITED STATES of America, .• ' ' 4 _ . Cavuoto,' 653 F2d 80,..82 (2d Cir. 1981). -Defendant-Appellant,- .. " 'No. 81-1317. . _ . 'CONCLUSION - • . - - Cities have authority to'use zoning to United States Court of Appeals, . A protect the living quality of their commer- Fifth Circuit., l- vial.and residential areas. .The:power .to . .Aug. 20,-1982. - . ' - • _. zone, .-however, may:=not overwhelm -the- - • . ••--.• : • , ._ .' -. • • ... _ ',• , guarantees of the Bill of.Rights.-=Adistaste • ,:':-._ •.- "i r;- . ,, .1.;" �.: e- •gib'' ' ' i for•adult theaters; no matter hoiv:respoa- Taxpayer brougfit,•suit-seeking.refund . i ;_ - •aive it •ia.`to community,values, is:not-a 'of-lift taxesr" The.United $bites'District x - strong•.enough state interest-to.justify •a ••Court for the Western"District of Texiss,H.- • : 1 _:massive "incursion, jnto.the..First Amend- - F.-Garcia, •J„,entered:3udgment on jury....'._� 1 ••4•=f: S went:rights of: viewers end-exhibitors of • verdict,-appeal was taken.: The Court of :1 I „ 7. T. •: . • _ non-obscene•completely,lawful.:adult films." ';APIiieals,•Alvin:B:Rubin,'Circuit'Judge,held r - We:conclude that Galveston has regulated (1) •�.��y ">;�`I • gu --that: er s'f.iansfer of r�tnch•'Yo.'.•.' '� protected speech without showing a suffi cor{xtrttion in which taxpayer and two sons ,1Y-- • » - cient interest to warrant the magnitude of owned all of voting stock resulted in taxa- -•_' ,4 _ the restrainl-accomplished_ _ ble gift to the sons in amount-equal,to ' To summarize, we hold, first, that Ordi- difference: between value of th-e ranch and.-. '•. ' ' -4; . nance 78-1 unconstitutionally restricts-the - value of"stock taxpayer received, and (2) .-;t? - 1 opening of adult theaters in Galveston,Tex- -evidence was insufficient to support finding•---..J- S-' • as: To the -extent'that Basiardanes was by jury that taxpayer's allegedly donative: � .t.Y • denied leas7. revenues-because of the ordi- transfer of.ranch to family corporation was - ;;,:c-! : ,, fiance, he suffered.compensable. damages. made in 'ordinary course of business" and; ' .1 - . - 22. Basiardanes•.claim that Ordinance 78-1 cost extent of those damages other than to indicate • , '- s- - - him lease revenues stands on different tooting, that elements of actual damages are revealed _;1I - :F. • • however. We express no opinion here•un the by the record_ . . . -• ``{'- i -y1' ms' �• 'Y y}(y. iE. r am.++.� 1-1.7'j ,Trot'. ,_.. L _ t. ,.. tom.. Gs , • - _s14.1 14,'"�r.:-.. 7" -w` .7 R-: T; :F _'Sti._, art".,--_--."c3�7',,,.4 r° "'y '� r ,,;.r2'R a . " . ~ "'4. 4r �-- ,, ' ^ 's ue R _;iig' , , • . w . ...-n+�r "�' ?',,, . n ' �,„ �—K ra --,,,r: "'r'1,.....,e..'^'4-. -i'•w -sr - i R' w ._y+X4"1`• .' Al:$4. i�'OM, ca. �" - y -Q vet - yam- c .yA' _ .4. .,•Y--y ^tom Yh "'c'. 'c`t. s ;.. _:11,1. :ifd ..- _ r' _i^ .C+•9aP.rtr e. w:'4 '...._ y]u`, -:.s3r..�,"�• _'";. >^_1.,.. .' ORDINANCE NO. 7 - _. ORDINANCE' AMENDING SECTION 25-8 , APPENDIX A or THE ZONING .`:TA.UDARDS - 1971 , CITY OF GALVESTON , BY ADDING THERETO IN ; Pi::C] TIED ZONING AREAS TWO NEW LANN. UISES TO BE CALLED ADULT I.')OF STORE AND ADULT MOTION PICTURE THEATER; -AMENDING SEC- TION 25-10 OF SAID ZONING STANDARDS BY DFFIN:LNG THE AFORESAID ;TN LAND USES, AND PROVIDING SPECIAL REGULATION WITH RESPECT '2 UERI:TO; PROVIDING FOR CRITERIA AND GUIDELINES FOR ISSUANCE ( ' :;FECIFIC USE PERMITS FOR SAID NJ'W LAND USES; PROVIDING REPEAL OF INCONSISTENT PARTS OF CONFLICTING ORDINANCES; I POV1.DING FOR READING AND PUBLICATION BY DESCRIPTIVE CAPTION AND PROVIDIINC FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY Or GALVESTON, TEXAS: SECTION 1 : That puxstaant to a determination made atter public hearings held by the F'lannincr-Zoning Commission c the City of Galveston on December 20 , 1977 , and by the itf Council of the City. of Galveston , on the 5th day of January, 1978 , notice of such hearings having been duly advertised as required under the provisions of Article 1011 (a-f) , Revised Civil Statutes of Texas, as amended, the City Council of the City of Galveston finds and determines it to in the best interest' of the health, safety and general welfare of the citizens of the City of Galveston to amend the toning Laws of the City as more particularly set forth • herein . • SECTION 2 . That to the Light Industrial (LI) , II:!avv Industrial (HI) , and Central Business (CB) Zoning Districts as set forth in Appendix A of Section 25-8 ( "Uses of Land and Buildings" ) of the Zoning Standards - 1971 , City of Galveston, as amended, adopted under and incorporated into the provisions of Chapter. 25 ( " Zoning" ) of the Code of the City of .;al ,_ston, 19(,0 , as are hereby added under "specific use the • ,f ,owing uses : "Adult Boo); Store Adult Motion Picture Theater" . SECTION 3 . That Section 25-10 ( "Special Definitions eed Explanations Noted in Use Requi at:ions" ) of the Zoning an(:,'r.ds - 1971 , City of Galveston , as amended , adopted under incorporated into the provisions of Chapter 25 ( "zoning" ) Code Oi. the City of Galveston , 1960 , as amended , is furthcr am•:,nded by adding thereto new subparagraphs 50 , t;j 52 which shall read and provide as follows, respectively: " ( 50; Adult. Bookstore : An establishment which has as a suustafltial cr significant portion of its stock in trade , books , magazines , and other. periodicals and which under the laws of the 7.tate of Texas excludes minors by virtue of ace unless accompanied by a consenting parent, guardian or spouse . " (51 , Adult. ^.;otion Picture Theater : Any premises from which,under. the laws of the State cf • Texas , minors are excluded by virtue of age unless accompanic •. by a consenting parent, guardian or spouse, and in which motion pictures , slides , or similar photographic reproductions are shown as the principal use of the premises or are shown as an adjunct to •.,h; ch i s conducted some other business u..t.. • _..1 •.------ - _ on the premises and constitutes a major attraction; and wherein such movies are shown on a regular basis; and not to include school or public auditoriums used for non-commercial purposes on an infrequent basis . " (52) Special Regulations and Specific Use Permit for Adult Book Stores & Adult Motion Picture Theaters : (a) Special Regulations . It is recognized that "adults enlvluses , because of their very nature , have serious objec- ticnable operational characteristics , • particularly when several of them are concentrated under certain circumstances . which produce cr result in a deleterious effect upon adjacent areas and the surrounding neighborhood. Special reculation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the adjacent property and the surrounding neighborhood . These special regulations are set forth in • this Sub-paragraph and are designed to prevent a concentration of these uses in • any one area . These Special Regula- • tions , and the , uses which are subject t:o such Special Regulations are as follows : ( i) • It shall be unlawful to hereafter establish any Adult Book Store or Adult Motion Picture Theater within 500 feet of the boundary line of any area zoned Single Family-1 (iF- 1) , Single Family-2 (1F-2) , Single Family-3 (1F-3) , General Residence (r,R) , Multiple Family-1 (MF-1) or Multiple Family-2 (MF-2) , or within • -2- 141. • five hundred ( 500) feet of any two (2) cf the' following or combination thereof : pc: 1 hell • l i.o u o r. s t_o r_c hai: . ( ii.) It shall be unlawful to hereafter establish any Adult. B00% Store or Adult Motion Picture Theater. within 1000 feet of the property line of any other Adult Book Store or Adult Motion Picture Theater or within 1000 feet of the property line of church, school , public park, or recreational facility where minors congregate. "MVnors" means persons under 17 years of age. . (iii.) Advertisements , displays, or other promotional materials for an Adult Book Store or an Adult Motion Picture Theater shall not be shown or exhibited so as to be visible to the public from any street, sidewalk or other public place. (iv) All building openings , entries , exists anc windows, for an Adult Motion Picture Theater. or Adult Book Store shall be located, covered, or screened in such a manner as to prevent a view into the interior from any street, sidewalk or other public place . (b) Specific Use Permit - Provisions and • Standards i'or Ault hook Store, Adult :'.oti.on P cture Theater. '7utere an applicant for a specific use permit to operate or maintain an Adult Book Store or Adult !Motion Picture Theater has made a complete compliance with all of the provisions of this Ordinance, all zoning laws and regulations of the City and all other applicable ordinances and laws of the City, the Planning-Zoning Commission and City Council shall use and consider the followinc; criteria, guidelines and matters in determining whether such applicant shall be issued the specific use permit for which application has been made. Such Specific Use Permit shall bP issued upon the City Council ' s making all of the following findings : • (i) That .the proposed Adult Book Store or Adult : otion Picture Theater will not be contrary to the public interest or injurious to nearby properties , and that the s^irit and intent of this Ordinance will be observed . • (ii) That the proposed Adult Book Store or Adult Motion Picture Theater will not enlarge or encourage the development of a "Skid Row" area . • -3- c % ( iii ) That the establishment of an addi- tional Adult I3ooR Store or Adult :lotion Picture Theater will nuL be contrary or deleterous to any program of neighborhood conservation , such as historic preservation , nor will it in:crfere with any program of neighborhood revitalization: . ( iv) 'That all applicable regulations of this Ordinance and the Zoning Laws of this City will be observed . " SECTION 4 . That upon the effective date of this ::_ _ :,once, Ordinance No . 77-8 , adopted on November 17 , 1977 hereby repealed in its entirety , and that upon the effective crate of this . Ordinance , all other Ordinances in . conflict herewith are repealed to the extent of such conflict only; this Ordinance shall be read by descriptive caption at �i:lam of adoption and after having been made publicly available in the office of the City Secretary for not less than seventy- two (72) hours prior to adoption; and that this Ordinance shall be and become effective from and after its adoption and publication by descriptive caption only as required by law and Charter . APPROVED AS TO FOR""_: • OI3 :RT V. SHATTUCK, JR, CITY ATTORNEY I , PATSY M. POOLE , Secretary of the City Council of the City of Galveston, do hereby certify that the foregoing is a true and correct copy of an Ordinance adopted by the City Council of the City of Galveston at its regular meeting held on the d=1.y of , 19 , as the same appears in records of this office . IN TESTIMONi' WHEREOF, I subscribe my name hereto o'i -" ally under the corporate seal of the City of Galveston this day of , 19 Secretary of t1'e City Council of the City of Galveston -4- I IN THE 'J: ITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEL WEST SRN DIVISION GUESS '.;TNAT , INC . , ) ) Plaintiff , ) • ) vs . ) NO . 82- 2259-N CITY OF MEMPHIS , ) ) Defendant . ) A Motion for a Temporary Restraining Order came on to be heard in this case on this date , Wednesday , - April 7th , 1982 , at Memphis , Tennessee , before the Honorable Odell Horton , Judge , presiding , when and where at the i _ conclusion of argument by counsel , the court rendered the following ruling : 2 APPEARANCES : For the Plaintiff : Michael F. Pleasants , Attorney 2000 First Tennessee Building Memphis , TN 38193 For the Defendant : Larry E. Potter Asst . City Attorney • Room 311 ., City Hall Memphis , TN 38103 - i • �J I io • i L= • 3 • THE COURT : Gentlemen , as you know, the court took a few minutes to collect its thoughts and to orczanize in a Quick way its findings and conclusions relatin7 to the matter of Guess !What , Inc . vs . City of Memphis , Tennessee. The plaintiff in this case , Guess What , Inc. , has filed a complaint in this court challenging the constitutionality of an ordinance of the City of Memphis , Tennessee , known as the Mechanical Amusement Device Ordinance. Guess • What , Inc . , seeks from the court at this point a Temporary Restraining Order enjoining the defendant , City of Memphis , Tennessee , from enforcing the ordinance and requiring the City of Memphis , Tennessee , to grant it a license 15 to operate its business , which it frankly admits 16 to be the business of operating amusement devices in which customers , desiring to do so , a deposit coins in machines and see on the machines sexually explicit films for a certain period of a J time. The coins obviously refers to money. The facts in the verified complaint charge the plaintiff has been denied a license to operate its business by the City of Memphis , Tennessee , because the plaintiff has been convicted in a Shelby County , Tennessee State Court for the offense of violating the State • of Tennessee ' s obscenity laws . Plaintiff • charges this denial of a license for that reason constitutes a prior restraint upon its First Amendment rights , and such action is , therefore , unconstitutional . The City of Memphis , Tennessee , represented by the City Attorney , states the ordinance is in every respect constitutional and is not • unconstitutional as applied to the plaintiff , Guess What , Inc . in this case. The city' s position is that plaintiff ' s conviction in the state court for violating the state' s obscenity laws is directly related to the business for which plaintiff seeks a license , and , therefore , 16 , the ordinance as applied to the plaintiff is valid and constitutional . The city urges the court to abstain from exercising its jurisdiction in this case , which has not been challenged , and also asks the court to require the plaintiffs to exhaust its administrative remedies by appealing the denial of the license it seeks to the city council for the city of 'ie,anhis as such appeal is provided for in the ordinance . The court finds from all of the facts • contained in the verified complaint , and concludes- on the law, after hearing arguments by counsel and completing its own research , that the Mechanical Amusement Device Ordinance of the City of Memphis insofar as it denies to plaintiff , Guess What , Inc . , a license to operate its business in the City of Memphis because of the conviction of Guess What , Inc . for violating the. state ' s obscenity laws is unconstitutional on its face and unconstitutional 12 as applied to this plaintiff , and consequently • the court will enter an order granting the Temporary Restraining Order. That order will enjoin the defendant , City of Memphis , Tennessee , • 16 I from denying Guess What , Inc . , a license to operate its business in the city of Memphis . The Temporary Restraining Order will be effective immediately upon the entry of the court ' s order . With respect to the law, the court on its own research, and after reading the memorandum submitted by counsel , finds that in this particular area relating to this type of ordinance the law is just overwhelmingly against such an ordinance , and the court is going to read a state- t - 6 ' I met-It from NATCO Theatres , Inc . v. Ratner , 463 Fed . Supplement , 1124 , page 1131 , "A system of nrior restraint based upon past convictions , can only be sustained if it is shown that granting a license to an individual with such a record would nresent a clear and present danger of a serious substantive evil . " Well , the court finds that no such clear and present danger of a serious substantive evil has been shown in this case. . Now, the court is going to read the • citations upon which it relies in reaching its • decision , because I think counsel for all parties are entitled to look at these cases if they desire to do so. They have all been mentioned one way or the other in the memorandums . . The court wishes to make it clear that as it reads the ordinance and as it hears the facts in this case , the ordinance does constitute a prior restraint upon constitutionally protected First Amendment Rights , and cannot stand . Now, the court will not read them in any order . I brought them in here , and if anybody wants to look at them , you might do so . But I am going to just briefly list them , and it is not in any . • n articular order . The first one is Genusa v . City of Peoria , 619 Fed . 2nd , 1203. It ' s a 1980 case . It ' s a Seventh Circuit case . The next case is Bayside Enterprises , Inc . vs . Carson , 470 Fed. Supplement , 1140. • It ' s a 1979 case from the Middle District of Florida. The next one is Grandso Corporation • vs . Rochford , 536 Fed. 2nd , 197 . It ' s a Seventh Circuit case . The court has already mentioned NATCOand the Court also read as a matter of importance in this case, the case of Nehr-v. the State of Minnesota , and the • court has the edition that is 51 Supreme • Court , 625. 15 Now, I might , briefly upon the city' s i5 argument relating to abstention. First of ;i all , the court does not think that the Younger Doctrine of abstension applies in this case , because there is no effort whatever in this case to enjoin any pending state court proceeding . The complaint as filed and verified in this • case makes it clear that the conviction in the state court is on appeal , and that that appeal is proceeding , and this proceeding here in the Federal District Court does not in any way pertain to that appeal or interfere with that proceeding in any way . The city apparently also relics upon the Pullman Extension Doctrine , and the court does not think that doctrine applies in this case for the simple reason that there is really no way , given the case law as it has developed in this area , to limit the ordinance by any interpre- tation insofar as it bars a license to an applicant convicted for a particular offense , in this case , the obscenity offense. So there is no ambiguity. It is crystal clear what the ordinance says , and the court thinks that • neither the Younger Doctrine or the Pullman • Doctrine applies in this case. Now, I think probably that ' s as far as the court needs to go on this TRO , and the court thinks that we perhaps need to discuss 37. some later date or leave it up to the clerk to set a date when a further hearing might need to be conducted relating to an injunction and the court is satisfied in this particular case that denial of a First Amendment right does constitute irreparable injury in this case. The court finds that the public interest in this case is served when First Amendment rights are promptly upheld as the court is doing in this particular case . The court does not sec , therefore , an adverse public interest in this particular case at all . The fact that the city , by its ordinance , is attempting to regulate a particular business that some people might find to be undesirable • does not make it any the less a matter that the court ,should not recognize constitu- . , tionally protected First Amendment Rights , and particularly the facts that presumptively this business is entitled to First Amendment Protections . I think, having said that , the court will listen to counsel further on any matter that perhaps the court should address itself to . ii MR. PLEASANTS : Your Honor , I prepared a ,2 form of order in accordance with the relief that we sought in our pleadings , and knowing the short time we had to consider this , I would like to present to the court this . I think it will be a framework for Your Honor to look at , and I am not sure it exactly meets the intent of the court ' s ruling . I have provided • . 10 Mr . Potter with a copy of that . (The court reads to himself , and then the following proceedings : ) THE COURT : Mr . Pleasants , I think the order as you have drafted it and proposed for entry is a bit broader than what the court • had in mind . The court really only directed its attention to that part of the ordinance that had to do with the denial of a license because of the _conviction on the obscenity laws • in the state , and my understanding from reading your complaint was that that was ;2 • really the basis upon which the license was denied. MR. PLEASANTS : Yes , sir. THE COURT : So I was not really addressing ih li myself to the total ordinance , but rather to that portion of the ordinance which the case law seems to indicate is so plainly unconstitu- tional . The case law also indicates that many features of these kinds of ordinances are constitutional and constitute a valid governmental process for public welfare , for the public health and public safety. You know all those l l zs words these cases use . So I think if you would modify this order in that regard , then all other matters would be matters that would be taken up at a later hearing . I think that would probably conform with the very • • limited approach the court is taking . Now, Mr . Potter , you were about to stand , and I didn' t want to cut you off by any • i means . MR. POTTER: I didn' t want 'to interrupt the court , but I was going to point out to the court that his order basically did pertain to the entire ordinance, 3139 through 67 , and the court has stated, as I understood the court , •• the court was only ruling on 3157, which dealt '6. with the conviction. THE COURT: Yes , sir. Now, I know you want a good looking order. So you can scout around here and get somebody -o to type it for you , or you can type it and • bring it back, because we are here . MR. PLEASANTS : I will be glad to carry it back to the office and bring it back by to 21 Mr . Potter and let him look at it , and I think we will be able to draft an order which will 12 • be in accordance with the court ' s ruling . THE COURT : Now, do you want to talk about a date for the further settin; while you arc here ant Ms . Breaux is here with all the hooks that we necl to give settings . MR. PLEASANTS : Yes , Your Honor. I think ample time ought to be given to `4r . Potter to further brief the matter if he thinks that • he can find a law to convince the court that our position is 'o.t well taken. I don' t think there are any facts that are in dispute . 7.7 I think Mr. Potter knows as much about the facts as I know, and so it would just be up to Mr. Potter. THE COURT: We will be away from here ;6 three weeks beginning Monday. We will be in Jackson for three weeks , and so you can take t hat into account. MR. POTTER. Whatever pleases the court . What dates do you have? THE CLERK : We have rriday, May the 7th , in the morning , 11 : 00 o ' clock. MR. POTTER : I have no problem with that . MR. PLEASANTS : At 0 : 3 0? :5 THE CLERK: 11 : 00 o ' clock. 13 • 1 •,J bb • . MR. PLEASANTS : Your Honor , is it my understanding that the Temporary Restraining • • Order will remain in effect until that time? THE COURT : Well , it would have to . Otherwise , the court wouldn ' t achieve the objective the order requires. The Temporary Restraining Order would require the city to go ahead and really , in effect issue the license forthwith, and I think the order ought to indicate. . i that the license should be granted upon entry of the order. MR. PLEASANTS : Of course , we are prepared 12 • to pay the fee to the city. We don' t object . in any way to the constitutionality of the city trying to raise a little money. We want the opportunity to help them out. THE COURT:- Well , on the dates , I want you gentlemen to agree on the dates , because to we can accommodate you fairly well , and we will do so . 20 MR. PLEASANTS : All right . THE COURT : Is there anything further? MR. PLEASANTS : That is it , Your Honor . Thank you very much. THE COURT : All right , Ms . Breaux. . - 1 I Y'/ • ` 1 � � 1 I think we come back at 2 : 00 o ' clock. (ADJOURNMENT) !6 is • CERTTICATT I , Hardy L. Fly , hereby certify that the • . foregoing 14 pales are , to the best of my knowledge , skill and ability , a true and accurate transcript from • my stentype notes , of the court ' s ruling on the Motion for Temporary Restraining Order , Wednesday', April 7 , 1982 , in the matter of : GUESS WHAT, <.INC. , VS. ' CITY OF MEMPHIS. . NO. 82-2259-H i1 15 !; • Dated this — day of April , 1982. i7 i Hardy L. Fly " / Official Court Reporter United States District Court Western District of Tennessee )' IN THE UNITED STATES DISTRICT COURT i � � FOR THE WESTERN DISTRICT OF TENNESSEE i �`'� e. l• WESTERN DIVISION • GUESS WHAT, INC . , ) ) r) f ; i`� Plaintiff , ) V . ) NO. 82-2259-H CITY OF MEMPHIS , ) Defendant . ) TEMPORARY RESTRAINING ORDER The Court has considered Plaintiff ' s motion for a temporary restraining order pending the hearing and determination of Plaintiff' s application for a preliminary and permanent injunction herein, and the verified complaint of Plaintiff in which it appears that the Plaintiff is suffering and will continue to suffer irreparable harm and damage by being unable to operate its coin-operated motion picture machines without a mechanical amusement device permit, and that a copy of the complaint and the motion for temporary restraining order has been served upon the City of Memphis by delivery to its Assistant City Attorney, Mr. Larry Potter. On the basis of these pleadings and papers and the statements and arguments of counsel for both parties, it . appears to the Court that Plaintiff will suffer immediate and irreparable injury, loss and damage in that the failure of the City of Memphis to grant the permits for which application has been made by Plaintiff, Guess What, Inc . , renders Plaintiff unable without threat of arrest of its employees to continue to operate said machines and derive revenue therefrom and the Court is of the opinion that the temporary restraining order should be issued. II• This document entered on l:a sheet in compliance with Rule 59 candler 79 (a) FRCP on _if IT I S , THEREFORE, ORDERED, ADJUDGED AND DECREED THAT : 1 . The Defendant , City of Memphis , its officers, aoents , servants , employees, successors , attorneys , and all those in active concert or participation with them, are enjoined and restrained from denying to Plaintiff Guess What, Inc . Mechanical Agreement Device Permits for machines at any of its business locations in the City of Memphis under Sections 31-39 through 31-67 of the Memphis City Code known as the Mechanical Amusement Device Ordinance on account of conviction of offenses under the Tennessee Obscenity Statute or any other reason under Section 31-57 ( 1 ) of said ordinance until such time as Plaintiff ' s application for a preliminary and permanent injunction can be heard and determined. 2 . Plaintiff' s application for a preliminary injunction will be heard by this Court at 11 : 00 o ' clock A. M. on May 7 , 1982 . 3 . A copy of this order_ shall be immediately rved by the United States Marshall on the Defendan2; * U. S . DI . RICT JUDGE DATE : 21 �`-- U APPROVED: CITY F' MEMPH I S sa 1 By: � _ Attorn y 1_ GUESS WHAT, IN . By: torney 4 - 2 - • . IN THE UNITED STATES DISTRICT COURT FILED FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION Ui . L L.- -) FU 'n; GUESS WHAT , INC . , Plaintiff , ) VS . ) CIVIL ACTION NO . 82-2259-H CITY OF MEMPHIS , ) Defendant . ) CONSENT ORDER EXTENDING TEMPORARY RESTRAINING ORDER By agreement of the parties by and through their respective counsel and upon statements made by Assistant City Attorney Larry E. Potter that the Defendant, City of Memphis, will recommend to the Memphis City Council that §31-57 ( 1 ) of the Memphis City Ordinances be amended, it satisfactorily appearing to the Court that the Temporary Restraining Order issued by the Court on April 7, 1982, . should be extended until Monday, June 28 , 1982. IT IS THEREFORE , ORDERED , ADJUDGED AND DECREED that the Temporary Restraining Order heretofore7issued in the above styled cause of action be extended until June 28 , 1982 . // U. . D' STRICT JUDGE DATE : `' f u, D 1 1 APPROVED: AAA.A -12 67=d; _____ LARRRYY E. POTTER Assistant City Attorney City of Memphis aLausk OsLate; __, ,.... t._:::- . MICHAEL PLEASANTS Attorney for Plaintiff , Guess What, Inc. This document entered o =t �ct in compliance with Rule 59 andlot 79 (a) FRCP on -� ORDINANCE.; No: 5 a I s� AN ORDINANCE TO AMFTEE) CI IAPTER 31, CODE OF ORDINANCES, CITY OF MEMPHIS, SO A.; • • TO REVISE AND CLARIFY CERTAIN SEcria ; • OE ARTICLE III, RELATING 'rU MECHANICAL AMUSEMENT DEVICE`;. • SECTION 1 . DE IT ORDAINED HY THE COUNCIL OE THE CITY OF MEMPlil.;, That Chapter 31, Code of Ordinances, City of Memphis, be and the saIW: is hereby amended under Article III, as follow_.: 1. By deleting in Section 31-39, under "Definitions", the defining of ' owner or operator` and substituting in lieu thereof a r. .':' definition as follows: "Owner or Operator of a mechanical amusement device shall mean the owner or lessor of mechanical amusement devices .for recreational use by the public." 2. By adding in Section 31-39, under the definition of "mechanical amusement device" the following language at the end thereof: "Mechanical Amusement Devices shall be distinguished in the following two classes: • Class Definition: Class A - shall include all mechanical amusement devices which display moving, still or video taped pictures; pool, bumper pool, and billiard tables; shuffleboard; music machines; electronic video; non-bingo type pinball machines; and other similar coin or token operated devices. Class B - shall refer to any mechanical amusement device which simulates poker, black jack, bingo or any similar gambling activity, even though such devices make no promise or provision for payoff. Nothing in this classification is intended to make legal or permissible the owning or operating of any gambling device defined in T.C.A. 39-2033. 3. By deleting Section 31-40 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-40. SEAL OR TAG 'IU SHOW OWNERSHIP. Every mechanical amusement device shall have a seal or tag permanently attached thereto showing the owner's name and business address." 4. By deleting the present section 31-54 and inserting in lieu • thereof a new section to read as follows: "SECTION 31-54. REQUIRED. It shall be unlawful for any person to install, operate or M• allow to be operated any mechanical am.iseinent device in the -2- City without having first obtained a permit so to do from the Director of Police Services." • 5. By deleting Section 31-55 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-55. FILING AND CONTDIP OF APPLICATION. Application for the permit required by this division shall be made to the Director of IU1ice Services on forms provided by him, shall be signed by the applicant, and shall contain the following information and such additional information as is deemed necessary by the Director of Police Services: Class A: a. Business name and address, and telephone nunber. b. Business owner and home address, and telephone nunber. c. Number of machines for which permits are being requested. d. Serial number(s) of machines for which permits are being requested (optional with applicant) . Class B: Application for this type device should include the following: a. Business name, address, and telephone nunber. b. Business owner, home address, and telephone number. c. Name of owner or operator of the business establish- ment in which the machine is to be operated, address and telephone number. d. Home address and telephone number of establishment owner. e. Number of machines which will be operated at the location. f. Liquor license number and date of issuance, ( if establishment is licensed to sell liquor) . g. Serial number(s) of machines for which permits are being requested (optional with applicant) . Once a location has been approved to operate Class B devices, the re-issuance of permits shall be handled in the same manner as Class A permits." 6. By deleting Section 31-56 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-56. FEES. A fee shall be charged for each mechanical amusement device permit issued. The fee shall be: Class A $36.00 Class B 75.00 The applicant shall file an original and one (1 ) copy of an application for a permit under the provisions of this Chapter with the Director of Police Services. If the application is approved, it shall be marked "Approved by the Director." The applicant shall pay the appropriate fees -3- and receive the permits and the original document stamped "fee paid". A copy of the application shall be retained by the Monphis Police Services (Police Department) . " 7. By deleting Section 31-57 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-57. APPROVAL OF APPLICATIONS FOR PERMITS BY DIRECTOR OF POLICE SERVICES; APPEALS FROM DIMAL::. 'I`ve Director of Police Services shall approve the application for a permit unless: ( 1 ) The owner of the rr. chanical amusement device or operator of the location for which the permit is being sought has been convicted of a criminal offense relating only to illegal gambling on mechanical amusement devices or illegally allowing minors to play mechanical amusement devices; or (2) The electrical inspector has reported that the location is not capable of safely handling the electricity required for the operation of the machine(s) . Any person aggrieved by the action of the Director of Police Services in denying the permit shall have the right of appeal de novo to the City Council, provided such appeal is perfected within five (5) days from such denial. 71ie action of the Council on such appeal shall be final." . 8. By deleting Section 31-63 in its entirety, and substituting in lieu thereof a new section to read as follows: "SEC•IION 31-63. POSTING OF PERMITS. A permit or permits issued under this division shall be permanently and eonspiciously attached to the machine or device for which it is issued. " 9. By deleting Section 31-64 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-64. TRANSFER OF PERMITS PROHIBITED. No permit issued under. this provision shall be transferable to any other device or machine. " 10. By deleting Section 31-66 in its entirety, and substituting in lieu thereof a new section to read as follows: "SECTION 31-66. RENEZ9AL OF PERMIT. Permits issued under this division shall be renewed annually and the application for renewal shall be accompanied by the payment of the fee required for the type device prescribed. The renewal fee shall be paid each year by July 1 , and will remain in effect through June 30,. of the -4- • tollowinl3 year. • Permits issued after July Y 1, shall b,. pro-rated to reflect the mcxiths remaining in the fiscal year. " 11. By adding new Section 31-68, to read as follows : "SECTION 31-68. LIST OF BUSINESSES 'IU BE PROVIDED lrr_ QUARTERLY.QUARTERLY.At the t i of application and at the beginning of each quarter thereafter, the machine owner shall be required provide a list of all businesses, by locationto where he/she has machines placed. " sEx`rloN 2. BE IT FURTHER ORDAINED, That,. the Provisions of this ordinance are hereby declared to be severable, and if any of its provisions, sentences sections, , phrases, or parts, be held the remainder of this ordinance the or void, i shall cbntinue ,in full force and effect, it • being the legislative intent now hereby declared th gave been at the ordinance mould passed, even if such unconstitutional or void matter Included herein. had not been SECTION 3. BE IT FURTHER ORDAINED, That, this ordinance rom and after the date it shall have been take effect passed „-,.�= �e Chairman of the b5' the Council, signed byCouncil, certified and delivered the �yor in writing by to the Office of-the Comptroller, and becorre effective as otherwise : ovided by law. • J. O. PATI'ER,SoN, JR. 'Chairman of Council est: ..:art Tambol i, Conptrol ler THE FOREQING ORDINANCE _PASSED : 1st Reading , UR 1 1981 �4 2nd Reading 1.._.1 _ �E1 JUL 2 0 1941 3rd Readin ` i.... Jiffail Approve Chairman of - -• APPROVED: - OVED: Mayor, City of f4emphleI `____ hereby certdy that the foreg g Is a trLe copy. and said document oo co:ry of the City of Memphis.vas adopted by the eate0 and approved emphts as above Indl. ed by the Mayor. Comptroller ___ _.._ -„..,,,. .L«:rvnt3- 73 L Ed 2d I • MIDDLESEX ETHICS COMM. v GARDEN '1'. BAH ASS 73 L Ed 2d 116 - = Court of Appeals declined to alter its original decision, despite an affidavit - from the clerk of the Supreme Court of New Jersey stating that the -,.A.' Supreme Court of New Jersey would directly consider the attorney's consti- '.� tutional challenges and that the court would consider whether such a procedure should be made explicit in the court's rules (651 F2d 154). Pending review in the United States Supreme Court, the Supreme Court of New Jersey heard oral arguments on the constitutional challenges pre- 'sented by the attorney and adopted a rule allowing for an aggrieved party MIDDLESEX COUNTY ETHICS COMMITTEE, etc., Petitioner in a disciplinary hearing to seek interlocutory review of a constitutional challenge to the proceedings. v On certiorari, the United States Supreme Court reversed and remanded. GARDEN STATE BAR ASSOCIATION et al. In an opinion by BURGER, Ch. J.,joined by WHITE, POWELL, REHNQuIsT, and O'CONNOR, JJ., it was held that the federal courts should abstain from —US —, 73 L Ed 2d 116, 102 S Ct— considering the challenge to the constitutionality of the disciplinary rules that were the subject of the pending state disciplinary proceeding within the [No. 81-460] jurisdiction of the Supreme Court of New Jersey, since (1) the state court • considered its bar disciplinary proceedings as judicial in nature, (2) the state Argued March 31, 1982. Decided June 21, 1982. had an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses, especially those involved in ecision: Federal court abstention from considering challenge to constitu- the administration of criminal justice, (3) the attorney had an opportunity tonality of attorney disciplinary rules that were subject of pending state to raise and have timely decided by a competent state tribunal the federal disciplinary'proceeding within jurisdiction of New Jersey Supreme Court, held required. • issues involved, and (4) no bad faith, harassment, or other exceptional circumstances dictated to the contrary. SUMMARY BRENNAN, J., concurring in the judgment, expressed the view that (1) A local attorney ethics committee, appointed by the New Jersey Supreme federal courts should show particular restraint before intruding into an Art, served a formal statement of charges on an attorney, ongoing disciplinary proceeding by a state court against a member. of the orations of certain disciplinary rules because of the at 's alleging " state's bar, where there is an adequate opportunity to raise federal issues in a:ernents criticizing a criminal trial and a trial judge. Instead of filingban that proceeding, and (2) the abstention doctrine applied by the court is in swer to the charges in accordance with state bar disciplinary general inapplicable to civil proceedings. e attorney and three organizations filed suit in the United States District :rt for the District of New Jersey, contending that the disciplinary rules MARSHALL, J., joined by BRENNAN, BLACK�tuN, and STEvENS, JJ., con- I'.sted the plaintiffs' First Amendment rights and were facially vague and ' ) curred in the judgment, expressing the view that it was unclear whether, at erbroad. The District Court granted the ethics committee's motion to the time the lower courts addressed the issue, there was an adequate piss, concluding that the principles of comity and federalism dictated opportunity in the state disciplinary proceedings to raise a constitutional at tt-- `ederal court abstain and afford the state the opportunitychallenge to the disciplinary rules, but that at the time of the United States t to f Supreme Court's decision there were ongoing judicial proceedings in the erpl s rules in the face of a constitutional challenge. The District Supreme Court of New Jersey in which the attorney had been given the urt reopened the case to allow the attorney and the other plaintiffs an ,. ortunity to establish bad faith, harassment, or other extraordinary 4 opportunity to raise his constitutional challenges. :umstances which would constitute an exception to the Younger absten- z doctrine, but the District Court found no evidence to justify such an eption, and dismissed the federal court complaint. The United States ' :rt of Appeals for the Third Circuit reversed'on the ground that the state disciplinary proceedings did not provide a meaningful opportunity to udicate constitutional claims, the disciplinary proceedings being viewed . the Court of Appeals as different from the state judicial proceedings to : ch federal courts usually defer (643 F2d 119). On reconsideration, the .'y i i 117 u. . Urx>✓ME COURT REPORTS 73 L Ed 2dtip MIDDLESEX ETHICS COMM. v GARDEN : . 73LEd2d116 HEAD,�OTES state proceedings afford an adequate op- complaint with the local attorney ethics Classified to U.S.Supreme Court Digest, Ls erg'Edition portunityto raise the constitutional and grievance committee is in effect a Courts 683 — federal abstention — es g 7 filing with the Supreme Court of New espouse a strong federal policy against claims. Jersey; New Jersey attorney disciplinary • challenge to constitutionality of federal court interference with pending Attorneys § 11 — attorney discipli- attorney disciplinary Want' proceedings — New Jersey proceedings are judicial in nature, and p art' rules state judicial proceedings absent extraor- as such are of a character warrant la-le. A federal court should abstain Binary circumstances; minima! respect law rom considering a challenge to the con- for state processes precludes any pre- 4: Under New Jersey law, filing a federal court deference. -titutionality of attorney disciplinary s safeguard n that the state courts will not SYLLABUS BY REPORTER OF DECISIONS ales that are the subject of a pending safeguard federal constitutional rights.Mate disciplinary proceeding within the urisdiction of a slate's highest court, Under rules promulgated by the New the ground that the disciplinary proceed- Courts §683 — federal court absten• Jersey Supreme Court pursuant to its ings did not provide a meaningful oppor- where (1) the state court considers its tion— Younger doctrine — a ppli- authority under the State Constitution tunity to adjudicate constitutional ar disciplinary proceedings as judicial .ability to noncriminal judicial to license and discipline attorneys admit- claims, notwithstanding an affidavit stat- e nature, (2) the state has an extremelyProceedings ted to practice in the State, a claim of ing that the New Jersey Supreme Court nportant interest in maintaining an 3. The policies underlying Younger v unethical conduct an attorney is first would directly consider Hinds' ce u- ssuring the professional conduct of the Harris, 401 US 37, 27 L Ed 2d 689, 91 S considered bya local District Ethics tional challenges and would consider hornet's it licenses, especially those in- Ct 746, are fully applicable to noncrimi- Committee appointed by. the Supreme whether such a procedure should be olved in the administration of criminal nal judicial proceedings when important Court. If a complaint is issued, the actor- made explicit in the Supreme Court utic — the the attorney challengingthe state interests are involved; the impor- p po net' whose conduct is challenged is rules. '�ciF y rules has had an o tance of the state interest may be dem- served with the complaint and has 10 Held: The federal courts should ab- pportu- onstrated by the fact that the noncrimi- days to answer. Upon a determination stain from interfering with the ongoing icy to raise and have timely decided by nal proceedings bear a close relationship that a prima facie case of unethical con- disciplinary proceeding within the juris- competent state tribunal the federal to proceedings criminal in nature; pro- duct exists, a formal hearing is held. The diction of the New Jersey Supreme sues involved,nt and (4) tno bad faith, gs necessary for the vindication of irassment or other exceptional circum- important state policies or for the funs- attorney charged may have counsel, dis- Court. ances dictate to the contrary. tioning of the state judicial system also covert' is available, and all witnesses ar (a) The policies underlying Younger )urts §683 — abstention doctrine — evidence the slate's substantial interest sworn. The Committee mayultimatelyare fully applicable to noncriminal judi- pending state judicial roceed. in the litigation; where vital state inter- dismiss the complaint, issue a private cial proceedings when important state P ests are involved, a federal court should letter of reprimand, or forward a pre- interests are involved. Where such inter- ings —federal court interference abstain unless state law clearly bars the sentment to the statewide Disciplinary e5ts are involved, a federal court should ''. Younger v Harris, 401 US 37, 27 L interposition of the constitutional claims, Review Board, which is also appointed abstain unless state law clearly bars the 2d 669, 91 S Ct 746, and its progeny the pertinent inquiry being whether the• by the Supreme Court. After a de novo interposition of the constitutional claims. review, the Board is required to make The pertinent inquiry is whether the formal findings and recommendations to state proceedings afford an adequate op- TOTAL CLIENT-SERVICE LIBRARYa REFERENCES the Supreme Court, which reviews all portunity to raise the constitutional . decisions beyond a private reprimand claims. 32A Am Jur 2d, Federal Practice and Procedure § 1797 'j and which permits briefing and oral ar- (b) The New Jersey Supreme Court 1 Federal Procedure, L Ed, Access to District Courts § 1:j77 gument for cases involving disbarment considers its disciplinary proceedings, be- i;e J or suspension for more than one year. ginning with the filing of a complaint Ed Digest, Courts §683 • Respondent Hinds, a member of the New with the local Ethics Committee, as "ju- d Index to Annos, Abstention Doctrine; Attorney and Jersey Bar, was served by petitioner, a dicial in nature." As such, the proceed- 1 lient local Ethics Committee, with a formal ings are of a character to warrant fed- ALR Quick Index, Abstention; Attorneys; Federal Courts statement of chargesi of violating certain. In eral-court(c) Thedeference. Federal Quick Index,Abstention; Abstention Supreme Court disciplinary rules. In- (c) The State has an extremely impor- 1on Doctrine; Attorneys stead of filing an answer to the charges, tant interest in. maintaining and assur- Hinds and the three respondent orga- ing the professional conduct of the attor- A�INOTATIO�I REFERENCES • . nizations of lawyers filed suit in Federal neys it licenses. The State's interest in District Court, contending that the disci- the present litigation is demonstrated by Supreme Court's rule, and exceptions to rule, piinary rules violated their rights under the fact that petitioner, an agency of the :ion in pending or threatened state criminal Proceedings.against federal 692. L�Rryen- the Federal Constitution. The court dis- New Jersey Supreme Court, is Stay of action in federal court until determination of similar action °W a: • missed the complaint on the basis of the named defendant in the present suit and state court. 5 ALR Fed 10. ng abstention principles of Younger v Har- was the body which initiated the state f ris, 401 US 37, 27 L Ed d669, re,e91 Ct proceedingsocef the againste interest Hinds. Ththee pen ima r- r • 746. The Court of Appealsg � 119 ---• --- -,..u. awa v1ti10 (d L rid 2d r ., MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. ':" '' 73 L Ed 2d 116 state judicial proceedings and in the fed- was no bad faith or harassment on peti- , eral case calls Younger abstention into tioner's part and that the state discipli- complaint is made by the person attorneys. The lawyer who is play. nary rules were not "flagrantly and pa- who chairs the Ethics Committee. If charged with unethical conduct may (d) In light of the unique relationship tently" unconstitutional. Nor have any a complaint is issued by the Ethics have counsel, discovery is available, between the New Jersey Supreme Court other extraordinary circumstances been Committee it must state the name of and all witnesses are sworn. The and the local Ethics Committee, and in presented to indicate that abstention the complainant, describe the panel is required to prepare a writ- view of the nature of the proceedings, it would not be appropriate. • 'y" claimed improper conduct, cite the ten report with its findings of fact cannot be concluded that there was no 643 F2d 119 and 651 F2d 154, reversed "adequate opportunity" for Hinds to and remanded. relevant rules, and state, if known, and conclusions. The full Committee, raise his constitutional claims. Anyr whether the same or a similar corn- following the decision of the panel, Commit- doubt as to this matter was laid to res Burger, C. J., delivered the opinion of -'. plaint has been considered by any has three alternatives. The Commit by the New laid to sub the Court, in which White, Powell, Rehn- • other Ethics Committee. The attor- tee may dismiss the complaint, pre- by the New Jersey when,Supremeper to the film quist, and O'Connor, JJ., joined. Bren- ney whose conduct is challenged is pare a private letter of reprimand, g nan, J., filed an opinion concurring in r: served with the complaint and has or prepare a presentment to be for- of the petition for certiorari in this the judgment. Marshall, J., filed an opin- = : Court, it sua sponte entertained the con- ion concurringin the 'ud i 10 days to answer. warded to the Disciplinary Review stitutional issues raised by Hinds. And judgment, in which Board. Rule 1:20-2(0).' - there is no reason to disturb the District Brennan, Blackmun, and Stevens, JJ., '`'. Unless good cause appears for re- there unchallenged findings that there joined. ferring the'•complaint to another The Disciplinary Review Board, a . committee member, each complaint state-wide board which is also ap- • APPEARANCES OF COUNSEL •• is referred to the member of the pointed by the Supreme Court, con-. • Committee who conducted the initial sists of nine members, at least five of Mary Ann Burgess argued the cause for petitioner. • investigation for review and further whom must be attorneys and at Morton Stavin argued the cause for respondents. investigation, if necessary. The corn- least three of whom must be nonat- OPINION OF THE COURT ,.. mittee member submits a written torneys. The Board makes a de novo- Chief Justice Burger delivered charges the State Supreme Court • report stating whether a prima facie review. Rule 1:20-3(d)(3).' The Board the opinion of the Court. with the responsibility for licensingindication of unethical or unprofes- is required to make formal findings and disci 11nin attorneys admitted •'s.. sional conduct has been demon- and recommendations to the New Pa] We granted certiorari to de- p g y strated. The report is then evaluated Jersey Supreme Court. termine whether a federal court to practice in the State. Art 6, § 2, - ' by the chairman of the Ethics Corn- should abstain from considering a 11 3 Under the rules established by mittee to determine whether a All decisions of the Disciplinary en- challenge to the constitutionalityof the N'ew Jersey Supreme Court, en- beyondprivate rep- disciplinary acted pursuant to its constitutional prima facie case exists. Absent a Review Board a disciplinary rules that are the sub- authority, a complaint moves prima facie showing, the complaint rimand are reviewed by the Ne•,v sect of a pending state disciplinary through a three-tier procedure. '. is summarily dismissed. If a prima Jersey Supreme Court. Briefing and proceeding within the jurisdiction of First, local District Ethics Commit- facie case is found, a formal hearing oral argument are available in the the New Jersey Supreme Court. tees appointed by the State Supreme on the complaint is held before three Supreme Court for cases involving US —, 70 L Ed 2d 377 102 S Ctor more members of the Ethics Corn- disbarment or suspension for more 500 (1981). The Court of Appeals Court are authorized to receive unethical ', mittee, a majority of whom must be than one year. Rule 1:20-4. plaints relating to claimed unethical held that it need not abstain under conduct by an attorney. New Jersey Yot, - v Harris, 401 US 37, 27 L Court Rule 1:20-2(d). At least two of 2. For a more detailed explanation of the one member of the bar to serve as Secretary. Ed 69, 91 S Ct 746 (1971). We the minimum of eight members of disciplinary procedure of the District Ethics The Secretary maintains records of the pro- reverse. gCommittees, see Rule 1:20-2. as noted below, ceedi.ds. The Secretary also transmits copies the District Ethics Committee must the procedure, as amended in 1981, now pro- of all documents filed to the Division of Ethics I be nonattorneys. Complaints are as- vides that a charged attorney may raise con- and Professional Services. Rule 1:20-2(c). signed to an attorney member of the stitutional questions in the District Commit- Committee to report and make a • ;'�-. �. Any constitutional challenges are to be 4. Subsequent to the initiation of the disci- A p set forth in the answer to the complaint. Rule plinary hearing involved in this case, Rule recommendation. Rule 1:20-2(h). The 1:20-2(j)now provides: 1:203ie)was amended to provide: The Constitution of New Jersey decision whether to proceed with the "All constitutional questions shall be with- "Constitutional challenges to the proceedings held for consideration by the Supreme Court not raised before the District Committee shall I. 1. Art 6, 2, ':•• as part of its review of the final decision of ' be preserved, without Board action, for Su- preme it 3 provides: procedure in all such cour'a. The Supreme "The Supreme Court shall make rules govern- Court shall have jurisdiction over the admis the Disciplinary Review Board. Interlocutory preme Court consideration as part of its re - "The the administration of all courts in the sion to the practice of law and the discipline relief may be sought only in accordance with view of the matter on the merits. Interlocu• State and,subject to the law,the practice and of persons admitted." "• ' R 1:20-3(dXi)." tory relief maybe sought only t g Yin accordance 120 � .fia 3. Each District Ethics Committee appoints with Rule 1:20-(d)(i)." • 1''1 U.S. SUPREME COURT REPORTS 73 L Ed 2d MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. t!{?':* 73 L Ed 2d 116 B After the trial was completed the -: portunity to interpret its rules in ceedings in this case as administra- Committee investigated the corn- the face of a constitutional chal- tive, "nonadjudicative" proceedings Respondent Lennox Hinds, a mem- plaint-and concluded that there was :r of the New bar, served as :• lenge." App 53a-54a. At respon- analogous to the preindictment stage ±r of ve Newdire Jersey of the National probable cause to believe that Hinds dents' request the District Court re- of a criminal proceeding.* had violated DR 1-102(AX5) of the opened the case to allow respondents Dnference of Black Lawyers at the. Disciplinary Rules of the Code of an opportunity to establish bad On petition for rehearing petition me of his challenged conduct. Professional Responsibility.' That ' faith, harassment or other extraordi- ers attached an affidavit from the inds represented Joanne Chesi- section provides that "A lawyer Clerk of the New JerseySupreme and in a civil proceeding challeng- nary circumstance which would con- P shall not . . . [e]ngage in conduct stitute an exception to Younger ab Court which stated that the New g her conditions of confinement in that is prejudicial to the administra- stention. Dombrowski v Pfister, 380 Jersey Supreme Court would di- ll. In 1977 Chesimard went to trial tion of justice." Respondent Hinds , US 479, 14 L Ed 2d 22, 85 S Ct 1116 rectly consider Hinds' constitutional state court for the murder of a also was charged with violating DR (1965). After two days of hearings challenges and that the court would >lica counsel Respondent Hinds was 7-107(D), whichprohibits extra udi- )t a of record for Chesi- the District Court found no evidence consider whether such a procedure and in the murder case. However, cial statements by lawyers associ- 7`t yto justify an exception to the Youn- should be made explicit in the Su- the outset of the criminal trial ated with the prosecution or defense ' ger abstention doctrine and dis- preme Court rules. On reconsidera- ir,ds took part in a press confer- of a criminal matter.' The Commit- missed the federal court complaint. tion a divided panel of the Third ,ce, ring statements critical of tee then served a formal statement Circuit declined to alter its original e t..,.. and of the trial judge's of charges on Hinds. A divided panel of the United decision, stating that the relevant dicial temperament and racial in- States Court of Appeals for the facts concerning abstention are nsitivity. In particular, Hinds re- Instead of filing an answer to the Third Circuit reversed on the ground those that existed at the time of the rred to the criminal trial as "a charges in accordance with the New that the state bar disciplinary pro- District Court's decision.' avesty," a "legalized lynching," Jersey bar disciplinary procedures, . ceedings did not provide a meaning- d "a kangaroo court." Hinds and the three respondent or- ful opportunity to adjudicate consti- Pending review in this Court, the ganizations filed suit in the United tutional claims. The court reasoned New Jersey Supreme Court has One member of the Middlesex States District Court for the District that the disciplinary proceedings in heard oral arguments on the consti- ,unty Ethics Committee read news of New Jersey contending that the this case are unlike the state judicial tutional challenges presented by re- counts of Hinds' comments and disciplinary rules violated respon- proceedings to which the federal spondent Hinds and has adopted a ought the matter to the attention dents' First Amendment rights. In courts usually defer. The Court of rule allowing for an aggrieved party the Committee. In February of addition, respondents charged that Appeals majority viewed the pro- in a disciplinary hearing to seek 77 the Committee directed one of the disciplinary rules were facially members to conduct an investiga- vague and overbroad. The District 7.The majority concluded that the hearings sues, concluding that the disciplinary proceed- n. A letter was written to Hinds, Court granted petitioner's motion t0 .. are designed to elicit facts, not legal argu- ings are not a series of separate segments to released the contents of the dismiss based on Younger v Harris, menu, as indicated by the presence of non- before independent bodies but are part of a_ lawyers. The court also found that the ability whole. Judge Weis also concluded that there ter to the press. The Ethics Corn- 401 US 37, 27 L Ed 2d 669, 91 S Ct . to raise constitutional claims before the Eth- was nothing to prevent the Ethics Committee tte' -- its own motion then sus- 746 (1971), concluding that "[t]he ics Committee does not constitute a meaning- from considering constitutional claims. ndec investigation until the principles of comityand federalism ful opportunity to have constitutional ques- g p p tions adjudicated. No formal opinion is filed 8. The panel majority noted that no rule -iclusion of the Chesimard crimi- dictate that the federal court abstain by the District Ethics Committee. The Third existed at the time of the District Court's I trial. so that the state is afforded the op Circuit distinguished Gipson v New Jersey decision to assure the Court of Appeals that Supreme Ct, 558 F2d 701 (CA3 1977), on the the New Jersey Supreme Court would con- . The Disciplinary Rules of the Code of "(Di During the selection of a jury or the trial ground that in Gipson the attorney being Sider the constitutional claims. The court also fessional Responsibility and Code of Judi- of a criminal matter, a lawyer or law firm disciplined was already subject to the state concluded that the possibility of a formal Conduct of the American Bar Association, associated with the court action at the time the federal proceed- procedure of the New Jersey Court for consid- rosecution or defense of h amendment and supplementation, have a criminal matter shall not make or partici- ing had been initiated. eration of constitutional claims does not moot n adopted by the New Jersey Supreme pate in making an extra-judicial statement Judge Adams, concurring, emphasized that this case because the underlying dispute as to in as the applicable standard of conduct that he expects to be dissemina cd by means state courts have the primary responsibility the validity of the rules still remains. Judge members of the bar and the judges of New of public communication and that relates is to discipline their bar and, in general, the Weis, again dissenting, concluded that no jus- sey. New Jersey Court Rule 1:14. federal judiciary is to exercise no supervisory ticiable controversy remained as to the issue the trial, parties, or issues in the trial or powers. Judge Weis, dissenting, argued that in the Court of Appeals and recommended . DR 7-107 deals with "Trial Publicity" other matters that are reasonably likely to J i respondents have full opportunity in the New that the case be remanded and dismissed as states: '1�' interfere with a fair trial.. . . ; Jersey proceeding to raise constitutional is- moot. 123 •j. i. • -_ ......... ywi Vi\1la (j L r:d 2d o- _ MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. g-y..) 73 L Ed 2d 116 ' nterlocutory review of a constitu- tant state interests are involved. =tonal challenge to the proceedings.' Moore v Sims, 442 US 415, 423, 60 L fold: first, do state bar disciplinary bar. New Jersey Const Art 6, §2, c 3. • hearings within the constitutionally The Supreme Court of New Jersey Ed 2d 994, 99 S Ct 2371 (1979); prescribed jurisdiction of the State has recognized that the local District II Huffman v Pursue, Ltd., 420 US 592, 604-605, 43 L Ed 2d 482, 95 S Ct Supreme Court constitute an ongo- Ethics Committees act as the arm of A 6000 (1975).5, 3 The importanceing state judicial proceeding; second, the court in performing the function of the - do the proceedings implicate impor- of receiving and investigating corn- (2] ' Younger v Harris, 401 US 37, state interest may be demonstrated ` 7 L Ed 2d 669, 91 S Ct 746 (1971), by the fact that the noncriminal tant state interests; and third, is plaints and holding hearings. Rule rid its progeny espouse a strong proceedings bear a close relationshipthere an adequate opportunity in 1:20-2; In re Logan, 70 NJ 222, 358 reral policy the state proceedings to raise consti- A2d 787 (1976). The New Jersey against federal court to proceedings criminal in nature, as tutional challenges. Iterference with pending state judi- in Huffman, supra:Proceedings nec- g Court has made clear that filing a al proceedings absent extraordi- essary for the vindication of impor- complaint with the local ethics and ary circumstances. The policies un- tant state policies or for the func- B grievance committee "is in effect a rlying Younger abstention have tinning of the state judicial system ; ; , filing with the Supreme Court. . . ." 'en frequently reiterated by this also evidence the slate's substantial ) [tb, 4] The State of New Jersey, in Toft v Ketchum, 18 NJ 280, 284, 113 curt. The notion of "comity" in- interest in the litigation. Trainor v - common with most States," recog- A2d 671, 674, cart denied, 350 US •. nizes the important state obligation 887, 100 L Ed 782, ?6 S Ct 141 udes "a proper respect for state Hernandez, 431 US 434, 52 L Ed 2d nctions, a recognition of the fact 486, 97 S Ct 1911 (1977); Juidice v to regulate persons who are autho- (1955). "From the very beg-inning a at entire country is made up Vail, 430 US 327, 51 L Ed 2d 376, 97 rized to practice law. New Jersey disciplinary proceeding is judicial in a n of separate govern- S Ct 1211 (1977). Where vital state expresses this in a state constitu- nature, initiated by filing a conv- ents, and a continuance state of the be- SCt interests2are involved, a federal tional provision vesting in the New plaint with an ethics and grievance ,f that the National Government court should abstain "unless state Jersey Supreme Court the authority committee."" Ibid. It is clear beyond ii11 fare best if the States and their law clearly bars the interposition of to fix standards, regulate admission doubt that the New Jersey Supreme are are the freet to performth theaconstitutionalearlyrs ." Moore, to the bar, and enforce professional Court considers its bar disciplinary eir separate functions in their sep- supra, at 426, 60 L Ed 2d 994, 99 S discipline among members of the proceedings as "judicial in nature."" ate ways." Id., at 44, 27 L Ed 2d Ct 2371. he - 9, 91 S Ct 746.10 Minimal respect quiry is wh her the state rn proceed- tt Sys Shsaf, State DisciplinarySrvy (ABA Enforce-Na ings nized§in (Proposed Draft 1978). h sever, P merit Systems Structural Survey Na- in Juidice v Vail, supra, however, the state processes, of course, ings afford an adequate opportunity tional Center for Professional Responsibilit eludes any presumption that the to raise the constitutional claims. y whether the proceeding "is labeled civil. 1980)' quasi-criminal, or criminal in nature," the to courts will.not safeguard fed- • . ." Id., at 430, 60 L Ed 2d 994, 99 The New Jersey allocation of responsibility sal it constitutional rights. S Ct 2371. See also Gibson v Berry- • is consistent with §2.1 of the ABA Standards tent fact is whether Ceder'l court interfer- ence would unduly interfere with the legiti- 3) The policies underlying Youn- mate activities of the state. Id.,at 335`336. hill, 411 US 564, 36 L Ed 2d 488, 93 ings (Proposed Draft 1978), which states that ' are fully applicable to noncrimi- S 1689 (1973). the "(ujitimate and exclusive responsibility The instant case arose before the 1978 rule within a state for the structure and admin s change. In 1978 the New Jersey Supreme judicial proceedings when impor- The question in this case is three- - `-' tration of the lawyer discipline and disability Court established a Disciplinary Review Rule 1:'20 1(d)states: system and the disposition of individual cases Board charged with review of findings of Dis- hes been properly raised below and preserved is within the inherent power of the highest trict Ethics Committees. Nothing in this rule i) In'- story Review. An aggrieved pending review of the merits of the presedisciprved court of the state." change, however, altered the nature of such y me a motion for leave to appeal nary matter by the Supreme Court, the ag- The rationale for vesting responsibility with proceedir.3s. The responsibility under Art 6, L the__,.._me Court to seek interlocutory grieved party may, within 10 days of the the judiciary is that the practice of law "is so §2, Q3 remains with the New Jersey Su- !w of a constitutional challenge to p� filing of the report and recommendation of directly connected and bound up with the Preme Court. i^5s pending before the District Ethics the Disciplinary Review Board, seek the re- i:. exercise of judicial power and the administra • - r terse or the Disciplinary Review Board. view of the Court bytion of justice that the right to define and 13. The role of local ethics or bar n�cnthe motion papers shallconf rm o R Board. proceeding in accordance e to appeal may be granted only when with the applicable provisions of R 1:19�.'• - regulate it naturally and logically belongs to tion committees may be analogized to the _ the judicial department." Id., commentary at function of a special master. Anonymous v ary to prevent irreparable injury. If 10.Samuels v Mackell, 401 US 66, 27 L Ed ' §2.1• Assn of the Bar of City of New York, 515 FEd w to appeal is granted, the record below 2d 688,91 S Ct 761(1971),concluded that the 427 (CA2), cert denied, 423 US 863, 46 L Ed in the discretion of the Court,be supple same comity and federalism 1 The New Jersey Supreme Court has 2d judicial92, 96 S Ct 122 (1975). The essentially .ed by the filing of briefs and oral s:b r- the issuance of federal court declaratorygovern concluded that bar disciplinary proceedings nature of disciplinary - judg- g P ary nctions inb New are neither criminal nor civil in nature, but Jersey has been rerngnized previously by the menu concerning the state statute that is the rather are sal genesis. In re Logan, 70 NJ federal courts. In Gipson Final Review. In any case in which a subject of the ongoing state criminal proceed- v New Jersey tSu- he itutional challenge to the proceedi:.,p ing, P LS t ) 222, 358 A2d 787 (1976). See also, Standards prams Court, 558 F2d 701 (CA3 1977), the ;y1 for Lawyer Discipline and Disability Proceed- United States Court of Appeals for the Third r t. 125 `A.:. 11k+111.1:iu1_, LA. va1 tinrvnuJ id L 1=;d ld MIDDLESEX ETHICS COMM. v GARDEN ST. BAR ASSN. 73LEd2d116 s such, the proceedings are of a which initiated the state proceedings - lenge of the validity of some statute, challenges to the state disciplinary iaracter to warrant federal court against respondent Hinds. unless it plainly appears that this proceedings." ?.ference. The remaining inquiries course would not afford adequate -e whether important state inter- - The importance of the state inter- protection.' Harris, su- There is no reason for the federal Younger v ;ts are implicated so as to warrant est in the pending state judicial pro- pra, at 45, 27 L Ed 2d 669, 91 S Ct courts to ignore this subsequent de • - deral court abstention and ceeding and in the federal case calls 746, quoting Fenner v Boykin, 271 velopment. In Hicks v Miranda, 422 hether the federal plaintiff has an Younger abstention into play. So US 240, 243-244, 70 L Ed 927, 46 S US 332, 45r L Ed 2d 223, 95 S Ct lequate opportunity to present the long as the constitutional claims of Ct 492 (1926). 2281 (1975), we held that "where deral challenge. respondents can be determined in state criminal proceedings are begun the state proceedings and so long as In light of the unique relationship against the federal plaintiffs after C there is no showing of bad faith, ` between the New Jersey Supreme the federal complaint is filed but • harassment or some other extraordi- Court and the local Ethics Commit- before any proceedings of substance [1c] The State of New Jersey has nary circumstance that would make =- tee, and in view of the nature of the on the merits have taken place in t extremely important interest in abstention inappropriate, the federal , _ ,- � } proceedings, it is difficult to conclude federal court, the principles of Youn- aintaining and assuring the profes- courts should abstain. j that there was no "adequate oppor- ger v Harris should apply in full anal conduct of the attorneys it tunity" for respondent Hinds to force." Id., at 349, 45 L Ed 2d 223, 95 • enses. States traditionally have D raise his constitutional claims." S Ct 2281. An analogous situation is ere' ' extensive control over the Moore, supra, at 430, 60 L Ed 2d Presented here; the principles of ofe: al conduct of attorneys. [1d] Respondent Hinds contends 994, 99 S Ct 2371. comity and federalism which call for • e supra, n 11. The ultimate objec- that there was no opportunity in the abstention remain in full force. Thus -e of such control is "the protec- state disciplinary proceeding to raise Whatever doubt, if any, that may far in the federal court litigation the ,n of the public, the purification of his federal constitutional challenge have existed about respondent sole issue has been whether absten • e bar and the prevention of a reoc- to the disciplinary rules. Yet Hinds Hinds' ability to have constitutional tion is appropriate. No proceedings challenges hear in the bar discipli- have occurred on the merits and rrence." In re Baron, 25 NJ 445, failed to respond to the complaint 9, 136 A2d 873, 875 (1957). The filed by the local Ethics Committee nary hearings was laid to rest by the therefore no federal proceedings on subsequent actions of the New Jer- the merits will be terminated by liciary as well as the public is and failed even to attempt to rake sey Supreme Court. Prior to the fil application of Younger principles. It pendent upon professionally ethi- any federal constitutional challenge conduct of attorneys and thus in the state proceeding. Under the ing of the petition for certiorari in would trivialize the principles of s a significant interest in assuring New Jersey procedure, its Ethics this Court the New Jersey Supreme .comity and federalism if federal • Court sua sports entertained the courts failed to take into account d maintaining high standards of Committees constantly are called ;duct of attorneys engaged in upon to interpret the state discipli- constitutional issues raised by re- that an adequate state forum for all 3ctice. See In re Stein, 1 NJ 228, nary rules. Respondent Hinds points spondent Hinds. Respondent Hinds relevant issues has clearly been 7, 62 A2d 801, 805 (1949), quoting to nothing existing at the time the ,: therefore has had abundant opportu- demonstrated to be available prior to re Cahill, 66 NJL 527, 50 A 119 complaint was brought by the local p nity to present his constitutional any proceedings on the merits in Lp Ct 1901). The state's interest in Committee to indicate that the mem- pre��-� oral conduct of attorneys tiers of the Ethics Committee, the 14.This case is distinguishable from Steffel Jersey Supreme Court for interlocutory adju- v Thompson,415 US 452,462,39 L Ed 2d 505, dication of constitutional issues. Rule 1:20- 'olv. 1 the administration of majority of whom are lawyers, 94 S Ct 1209 (1974), in which there was no 4(dXi). See note 9 supra. Even if interlocutory mina► justice is of special impor- would have refused to consider a ongoing state proceeding to serve as a vehicle review is not granted, constitutional issues ice. Finally, the state's interest in claim that the rules which they were for vindicating the constitutional rights of the are preserved for consideration by the New federal plaintiff.This case is also distinguisha- Jersey Supreme Court. Rule 1:20.2(j). present litigation is demon- enforcing violated federal constitu- ble from Gerstein v Pugh, 420 US 103, 108, n ated by the fact that the Middle- tional guarantees. Abstention is 1 9, 43 L Ed 2d 54, 95 S Ct 854 (1975), in which The New Jersey Supreme Court reviews all disciplinary actions except the issuance of County Ethics Committee, an based upon the theory that "'[t]he the issue of the legality of a pretrial detention private letters of reprimand. Rule 1:20-t. Rule mcy of the Supreme Court of New accused should first set up and rely could not be raised in defense of a criminal 1:20-2(j), however, requires that all constitu- •sey, is the named defendant in upon his defense in the state courts • Prosecution. See also Juidice v Vail,supra,at tional issues be withheld for consideration by 337,51 L Ed 2d 376,97 S Ct 1211. the Supreme Court as part of its review of the present suit and was the body even though this involves a chal- 13.In addition,after the filing of the writ of decision of the Disciplinary Review Board. certiorari the New Jersey Supreme Court This appears to provide for Supreme Court uit agreed that "incursions by federal proceedings would be particularly disruptive .- " amended the State bar disciplinary rules to review of constitutional challenges even when s into ongoing [New Jersey) disciplinary of notions of comity."Id.,at 704. �u . { ) expressly permit a motion directly to the New a private reprimand is made. 3r `- - 127 ' - .x 4 4 • • federal court. id., at 350, 45 L Ed 2d had an "opportunity �tiLLL�..��.�. ..._...�.. ----_- d. 223, 95 S Ct 2281.'a73 L Ed 2d 116 to raise and language in the Court's opinion dis- ics Committee are more accurately nt Respondents have not challenged state tribunalhave timely detheefeder l issues es by a tin- inters tt ini regulatin othe ptofes- judicial in natureutorial rather than the findings of the District Court volved," Gibson v Ben hill 411 US, sional conduct of its attorne e s. How- that there was no bad faith or ha- Y y I agree with the Court that we rassment on the part of petitioners at 577, 36 L Ed 2d 488, 93 S Ct 1689, ever, I believe that the question may consider events subsequent to and that the state rules were not and because no bad faith, harass_ whether Younger abstention would the decisions of the courts below "flagrantly and patently" unconsti ment or other exceptional circum- have been appropriate at the time because the federal litigation has tutional. Younger, supra, at 53, 27 L stances dictate to the contrary, fed- that the District Court or the Court addressed only the question whether Ed 2d 669, 91 S Ct 746, quoting eral courts should abstain from in- of Appeals considered this issue is abstention is appropriate. Thus far, \Vatson v Buck, 313 US 387, 402, 85 not as simple as the Court's opinion there have been no proceedings on L Ed 1416, 61 S Ct 962 (1941). App terfering with the ongoing proceed might be read to imply. As the Court the merits in federal court. Ante, at 50a-,52a. We see no reason to disturb ings. Accordingly, the judgment of acknowledges, absent an ongoing ju• —_ 73 L Ed 2d 127-128. After these findings, and no other extraor- the United States Court of Appeals dicial proceeding in which there is the Court of Appeals rendered its dinary circumstances have been pre for the Third Circuit is reversed, and {an adequate opportunity for a party decision and denied petitioner's peti sented to indicate that abstention the case remanded for further pro- i to raise federal constitutional chal- lion for rehearing, the New Jersey would not be appropriate." ceedings consistent with this opin- lenges, Younger is inapplicable. Supreme Court certified the com- III ion. • Ante, at —, 73 L Ed 2d 124. See plaint against respondent Hinds to I Because respondent Hinds • also Gibson v Berryhill, 411 US 564, itself. App to Pet for Cert 62. Now, Reversed and remanded. 577, 36 L Ed 2d 488, 93 S Ct 1689 there are ongoing judicial proceed- SEPARATE OPINIONS (1973). Here, it is unclear whether, ings in the New Jersey Supreme Justice Brennan, concurringin at the time the lower courts ad- Court in which Hinds has been given the judgment. (1968), call for exceptional deference dressed this issue, there was an ads- the opportunity to raise his constitu by the federal courts. See Gipson v quate opportunity in the state disci- tional challenges. As a result, Yopun- For the reasons stated by Justice p plinary proceedings to raise a consti- ger abstention, at least with respect New Jersey Supreme Court, 558 F2d tutional challenge to the disciplinary to Hinds, is appropriate at this time. Marshall, I join the judgment in this 701, 703-704 (CA3 1977) Erdmann vonly, > judg- Marshall, rules. Furthermore, it is unclear For this reason I join the ud case. I agree that federal courts Stevens, 458 F2d 1205,� 1209-1210 whether proceedings before the Eth- ment of the Court. should show particular restraint be- (CA2 1972). I continue to adhere to my view, however, that Younger v Core intruding into an ongoing disci dinary proceeding by a state court Harris, 401 US 37, 27 L Ed 2d 669, tgainst a member of the State's bar, 91 S Ct 746 (1971), is in general vhere there is an adequate opportu- inapplicable to civil proceedings. See city to raise federal issues in that Huffman v Pursue, Ltd., 420 US 592, ` I iroceeding. The traditional and pri- 613, 43 L Ed 2d 482, 95 S Ct 120G •/ iary responsibility of state courts (1975) (Brennan, J., dissenting). 4 • )r establishing and enforcing stan- s• • ands - members of their bars and Justice Marshall, with whom Jus- :Lg.1e c, criminal nature of bar dis- lice Brennan, Justice Blackmun y a plin..,, proceedings, In re Buffalo, nd Justice Stevens join, concurring )0 US 544, 551, 20 L Ed 2d 117, 88 in the judgment. ;. Ct 1222, 43 Ohio Ops 2d 459 pI agree with much of the general • 16. Indeed, the decision of the New Jersey Appeal, decided whether abstention ¢ preme Court to consider respondent Hinds' ention would be3. : utitutional challenges .r.dicat d that the proper as to the respondent organizations who t' to court desired to give Hinds a swift j thedi- are not parties to the state dsciplinary pro • ': I resolution of his constitutional claims. Appeals ceedings. r leans this issue o the Court of on remand 7. 1t is not clear whether the Court of �� 129-i' i CITY OF RENTON , WASHINGTON ORDINANCE NO . 3526 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS : SECTION I : Existing Section 4- 702 of Title IV (Building Regulations) of Ordinance No . 162.3 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or characterized by an emphasis on matter depicting , describing or relating to "specified sexual activities" or "specified anatomical areas" as hereafter defined , for observation by patrons therein . 2 . "Specified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation, sexual intercourse or sodomy ; (c) Fondling or, other erotic touching of human genitals , pubic region, buttock or female breast . 3 . "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region, buttock, and female breast below a point immediately above the top of the areola ; and (b) Human male genitals in a discernible turgid state , even if completely and opaquely covered. CERTIFICATE .-1- ►, the undersigned, 0ec0.ees /I . Cny of Ranson, Washington, certify CIeAc of the ty that this is a true and correct copy of•QRl.:;!.;v„ C.0: . ... ?.k.. Subsctibed aad Sealed this /„ ....... ..of 2.141i-R, 196:-.)• Cyr • S. 41i1P SECTION II : There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any residential zone (SR-1 , SR-2 , R-1 , S-1 , R-2 , R-3 , R-4 or T) or any single family or multiple family residential use . 2 . One (1) mile of any public or private school 3 . One thousand (1000 ' ) feet of any church or other religious facility or institution 4. One thousand (1000 ' ) feet of any public park or P- 1 zone . B . The distances provided in this section shall be measured by following a straight line , without regard to intervening buildings , from the nearest point of the property parcel upon which the proposed use is to be located , to the nearest point of the parcel of property or the land use district boundary line from which the proposed land use is to be separated. SECTION III : This Ordinance shall be effective upon its passage , approval and thirty days after its publication . PASSED BY THE CITY COUNCIL this 13th day of April , 1981 De.ores A. ead, Gity Clerk APPROVED BY THE MAYOR this 13th day of April , 1981 . Approved as to form: Barbara Y . Shinpoch , Mayor awrence arren , City Attorney Date of Publication : May 15, 1981 1110 2,z CITY OF RENTON , WASHINGTON ORDINANCE NO . 3629 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON RELATING TO LAND USE AND ZONING WHEREAS , on April 13 , 1981 , the City Council of the City of Renton adopted Ordinance No . 3526 , which Ordinance was approved by the Mayor on April 13 , 1981 , and became effective by its own terms on June 14 , 1981 ; and WHEREAS , it was the intention of the City Council of the City of Renton in the adoption of that Ordinance to rely upon the opinion of the United States Supreme Court in the case of Young v. American Mini Theaters , 427 US 50 , and of the Supreme Court of the State of Washington in'the case of Northend Cinemas v. Seattle , 90 Wn 2d , 709 , to limit the location of adult motion picture theaters , as that term is defined therein , to promote the City of Rernton ' s great interest in protecting and preserving the quality of its neighborhoods , commercial districts , and the quality of urban life through effective land use planning ; and WHEREAS , the City Council , through its Planning and Development Committee , held a public meeting on March 5 , 1931 , to receive testimony from the public concerning the subject of regulation of adult entertainment land uses , at which the following testimony was received which the City Council believes to be true , and which formed the basis for the adoption of Ordinance No . 3526 : 1 . Areas within close walking distance of single and multiple family dwellings should be free of adult entertainment land uses . 2 . Areas where children could be expected to walk , patronize or recreate should be free of adult entertainment land uses . 3 . Adult: entertainment land uses should be located in areas of the City which are not in close proximity to residential uses , churches , parks . . and other public facilities , and schools . 4 . The image of the City of Renton as a pleasant • and attractive place, to reside will be adversely • ;'hti 4exi rupted,'DELoeEs A .144 cA D deft d a •4ty al $sotto++, WelAiNito41, te1ft Met I K a ins c copy of a.�... Substflbed aged spa day of SeZ.1. 410 affected by the presence of adult entertainment land uses in close proximity to residential land uses , churches , parks and other public facilities , and schools . 5 . Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists , rather than in response to an existing problem. 6 . Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses . Y . The Renton School District opposes a location of adult entertainment land uses within the perimeters 1 of its policy regarding bussing of students , so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses . 8 . The Renton School ' District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools , and commercial areas patronized by students and young people , will have a detrimental effect upon the quality of education which the School District is providing for its students . 9 . The Renton School District finds that education of its students' will be negatively affected by location of adult entertainment land uses in close proximity to location of schools . 10 . Adult entertainment land'' uses should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. 11 . Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs , will move from the community or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses , churches , parks and other public facilities , and schools . 12 . Location of adult entertainment land uses in proximity to residential uses , churches , parks and other public facilities , and schools , may lead to increased levels of criminal activities , including prostitution , rape , incest and assaults in the vicinity of such adult entertainment land uses . 13 . Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses , churches , parks and ocher public facilities , and schools . Location of -2- 4110 adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities , and schools , will reduce retail trade to commercial uses in the vicinity , thus reducing property values and tax revenues to the City . Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City , leading to further deterioration of the commercial quality of the City ., 14. Experience in numerous other cities , including Seattle , Tacoma and Detroit , Michigan, has shown that location of adult entertainment land uses degrade the quality of the areas of the City in which they are located and cause a blighting effect upon the city . The skid row effect , which is evident in certain parts of Seattle and other cities , will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities . 15 . No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community . 16 . Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses . 17 . A reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values , and protect the residents of the community from the adverse effects of such adult entertainment land uses , while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses . 19'. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses . 20 . A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses . 21 . The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity , thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential , churches , parks and other public facilities , and schools , and the impact upon the image and quality of the character of the community . • -3- . • 401 and WHEREAS , since the adoption of Ordinance No . 3526 , it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings ' of fact which were the basis for the adoption by the City Council of Ordinance No . 3526 ; and WHEREAS , the City Council finds that , in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No . 3526 was adopted, and to include a severability clause which was inadvertently omitted from Ordinance No . 3526 , and to make certain other technical amendments to Ordinance No . 3526 , that it is necessary for the City Council to adopt legislation amending Ordinance No . 3526 to accomplish the foregoing purposes ; and WHEREAS , the City Council , at its duly called special meeting on February 25 , 1982 , held a public hearing upon the subject matter of land use regulations of• adult motion pictures within the City of Renton , at which public hearing the City Council received comments from the public on that subject matter at which the following testimony was received, which the City Council believes to be true , and which , together with the findings heretofore set forth as the ' basis for the adoption of Ordinance No . 3256 , form the basis for the adoption of this Ordinance : 1 . Many parents have chosen the City of Renton in which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home . 2 . Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to , and causes a loss of sensitivity to the adverse affect of pornography upon children , established family relations , respect for marital relationships and for the sanctity of marriage relations of others , and the concept of non-aggressive consenual sexual relations . -4- M M 3 . Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline , thus causing a blight upon the commercial area of the City of Renton. 5 . Location of adult entertainment land uses within neighborhoods and commercial areas of the City of • Renton is disrupting to youth programs such as Boy Scouts , Cub Scouts and Campfire Girls . Many such youth programs use the commercial areas of the City as a historical research resource . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities and schools is inappropriate . 6 . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities , and schools , will cause a degradation of the community standard of morality . Pornographic material has a degrading effect upon the relationship between spouses . NOW THEREFORE , THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON DO ORDAIN AS FOLLOWS : SECTION I : Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following sub- sections : "Used" The word "used", in the definition of "Adult motion picture theater" herein , describes a•continuing course of conduct of exhibiting "specific sexual activities" and "specified anatomical. areas" in a manner which appeals to a prurient interest . • SECTION II : Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : (C) Violation of the use provisions of this section is declared to be a public nuisance per se , which shall be abated by City Attorney by way of civil abatement procedures only , and not by criminal prosecution. (D) Nothing in this section is intended to authorize , legalize or permit the Establishment , operation or maintenance of any business , building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances , sexual conduct , lewdness , or obscene or harmful matter or the exhibition or public display thereof . -5- 4100 Ili/ SECTION III : Existing subsection (A) (2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows : • 2 . One thousand feet (1 , 000 ' ) of any public or private school . SECTION IV: City of Renton Ordinance No . 3526 is hereby amended by adding the following section to read as follows : If any section , subsection , sentence , clause , phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction , such decision shall not affect the validity of the remaining portions of this ordinance . The City Council of the City of Renton hereby declares that it would have adopted City of Renton Ordinance No . 3526 and each section , subsect,ioh, sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , subsections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION V: If any section, subsection , sentence , clause , phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction , such decision shall not affect the validity of the . remaining portions of this ordinance . The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section , subsection , sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , sub- sections , sentences , clauses , phrases or portions be declared invalid - or unconstitutional . SECTION VI : The City Council of the City of Renton finds and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of this ordinance , and potential liability of the City of Renton for • damages as pleaded in that litigation, anu that the immediate adoption -6- M of this ordinance is necessary for the immediate preservation of public peak, health , and safety or for the support of city government and its existing public institutions and the integrity of the zoning of the City of Renton. Therefore, this ordinance shall take effect immediately upon its passage and approval by the mayor . • PASSED BY THE CITY COUNCIL this 3th day of May, 1982 . • Ike ores ea ity Ck APPROVED BY THE MAYOR this 3th day of May, 1982 . )c G u d 1 S(LUL o4 Barbara Y. •. Shinpoch , Mayor Approved as to form: Lawrence J . Warren, City Attorney Date of Publication : may 7, 1982 • • • t 'tip. • • • -7- ,: N M • CITY OF RENTON , WASHINGTON ORDINANCE NO. 3637 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON AMENDING ORDINANCE NO. 3526 RELATING TO LAND USE AND ZONING AND AMENDING ORDINANCE NO . 3629 3Y DELETING THE EMERGENCY CLAUSE AND RE-ENACTING THE REMAINDER THEREOF WHEREAS , on April 13 , 1981 , the City Council of the City of Renton adopted Ordinance No . 3526 , which Ordinance was approved by the Mayor on April 13 , 1981 , and became effective by its own terms on June 14 , 1981 ; and WHEREAS , on May 3 , 1982 , the City Council of the City of Renton adopted Ordinance No . 3629 amending Ordinance No . 3526 , which Ordinance was approved by the Mayor on May 3 , 1982 , and became effective on its passage and by the terms of the Ordinance ; and WHEREAS the City Council wishes to remove the emergency clause from Ordinance No . 3629 and re-enact the remainder of Ordinance No . 3629 in its entirety ; and WIIERREAS , it was the intention of the City Council of the City of Renton in the adoption of Ordinance No . 3526 to rely upon the opinion of the United States Supreme Court in the case ofp g Young v. American Mini Theaters , 427 US 50 , and of the Supreme Court of the State of Washington in the case of ,Jorthend Cinemas v. Seattle , 90 Wn 2d , 709 , to limit the location of adult motion picture theaters as chat term is defined therein, to promote the City of Renton ' s great interest in protecting and preserving the quality of its neighborhoods , commercial districts , and the quality of urban life through effective land use planning ; and WHEREAS , the City Council , through its Planning and Development Committee , held a public meeting on March 5 , 1981 , to OtAT1Tf tpve �+d�x3+Qr+ed. Decoees n . MP.o aer1'of the City of %onto'', Washington, and terllfy That Ms is a We act o!.Q R 4.!N :�?�.e.....QQP...► �.3.7...... . Subscribed and Sony this ▪ , day of Uf:lnP.., • City Clerk receive testimony from the public concerning the subject of regulation of adult entertainment land uses , at which the following testimony was received which the City Council believes to be true , and which formed the basis for the adoption of Ordinance No . 3526 : 1 . Areas within close walking distance of single and multiple family dwellings should be free of adult entertainment land uses . 2 . Areas where children could be expected to walk , patronize or recreate should be free of adult entertainment land uses . 3 . Adult entertainment land uses should be located in areas of the City which arc not in close proximity to residential uses , churches , parks and other public facilities , and schools . 4 . The image of the City of Renton as a pleasant and attractive place to reside will be adversely affected by the presence of adult entertainment land uses in close proximity to residential land uses , churches , parks and other public facilities , and schools . 5 . Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists , rather than in response to an existing problem. 6 . Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses . 7 . The Renton School District opposes a location of adult entertainment land uses within the perimeters of its policy regarding busing of students , so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses . S . The Renton School District finds that location of adult entertainment land uses in areas of the City which are in close proximity to schools , and commercial areas patronized by students and young people , will have a detrimental effect upon the quality of education which the School District is11 providing for its students . 9 . The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses In close proximity to location of schools . -2- S • 10 . Adult entertainment land uses should be regulations by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself . 11 . Residents of the City of Renton , and persons who are non-residents but use the City of Renton for shopping and other commercial needs , will move from the community or shop elsewhere if adult entertainment land uses arc allowed to locate in close proximity to residential uses , churches , parks and other public facilities , and schools . 12 . Location of adult entertainment land uses in proximity to residential uses , churches , parks and other public facilities , and schools , may lead to increased levels of criminal activities , including prostitution , rape , incest and assaults in the vicinity of such adult entertainment land uses . 13 . Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses , churches , parks and other public facilities , and schools . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities , and schools , will reduce retail trade to commercial uses in the vicinity , thus reducing property values and tax revenues to the City . Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City , leading to further deterioration of the commercial quality of the City . 14 . Experience in numerous other cities , including Seattle , Tacoma and Detroit , Michigan , has shown that location of adult entertainment land uses degrade the quality of the area of the City in which they are located and cause a blighting effect upon the City . The skid row effect , which is evident in certain parts of Seattle and other cities , will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities . 15 . No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community . • 16 . Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of adult . entertainment land uses . -3- 4011 17 . A reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values , and protect the residents of the community from the adverse effects of such adult entertainment land uses , while providing, to those who desire to patronize adult_ entertainment ..land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses . 18 . The community will bu an undesirable place to live if it is known on tha basis of its image as the location of adult entertainment land uses . 19 . A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses . 20 . The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity , thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential , churches , parks and other public facilities , and schools , and the impact upon the image and quality of the character of the community . and WHEREAS , since the adoption of Ordinance No . 3526 , it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings of fact which were the basis for the adoption by the City Council of Ordinance No . 3526 ; and WHEREAS , the City Council finds that , in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No . 3526 was adopted , and in include a severability clause which was inadvertently omitted from Ordinance No . 3526 , and to make certain other technical amendments to Ordinance No . 3526 , that it is necessary for the City Council to adopt legislation amending Ordinance No . 3526 to accomplish the foregoing purposes ; and WHEREAS , the City Council , at its duly called special meeting on February 25 , 1982 , held a public hearing upon the subject matter of land use regulations of adult motion pictures within the City of Renton , at which public hearing the City Council received comments from the public on that subject matter at which the following testimony was received , which the City Council believes to be true , -4- and which ; together with the findings heretofore set forth as the basis for the adoption of Ordinance No . 3256 , form the basis for the adoption of this Ordinance : 1 . Many parents have chosen the City of Renton in • which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home . 2 . Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to , and causes a loss of sensitivity to the adverse affect of pornography upon children , established family relations , respect for marital relationship and for the sanctity of marriage relations of others , and the concept of non-aggressive consensual sexual relations . 3 . Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are known and recognized. 4 . Property values in the areas adjacent to the adult entertainment land uses will decline , thus causing a blight upon the commercial area of the City of Renton . 5 . Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy Scouts , Cub Scouts and Campfire Girls . Many such youth programs use the commercial areas of the City as a historical research resource . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities and schools is inappropriate. 6 . Location of adult entertainment land uses in close proximity to residential uses , churches , parks and other public facilities , and schools , will cause a degradation of the community standard of morality . Pornographic material has a degrading effect upon the • relationship between spouses . NOW THEREFORE , THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON DO ORDAIN AS FOLLOWS : SECTION I : Existing Section 4-702 of Title IV (Building Regulations ) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : -5- S • "Used" The word "used" in the definition of "Adult motion picture theater" herein , describes a continuing course of conduct' of exhibiting "specific sexual activities" and "specified anatomical area in a manner which appeals to a prurient interest . SECTION II : Existing Section 4- 735 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : (C) Violation of the use provisions of this section is declared to be a public nuisance per se , which shall be abated by City Attorney by way of civil abatement procedures only , and not by criminal prosecution . (D) Nothing in this section is intended to authorize , legalize or permit the establishment , operation or maintenance of any business , building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances , sexual conduct , lewdness , or obscene or harmful matter or the exhibition or public display thereof. SECTION III : Existing subsection (A) (2) of Section 4- 735 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows : 2 . One thousand feet (1 , 000 ' ) of any public or private school . SECTION IV: City of Renton Ordinance No . 3526 is hereby amended by adding the following section to read as follows : If any section , subsection , sentence , clause , phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction , such decision shall not affect the validity of the remaining portions of this ordinance . The City Council of the City -6- S of Renton hereby declares that it would have adopted City of Renton Ordinance No . 3526 and each section , subsection , sentence , clause , phrase or portion thereof irrespective of the fact that 'any one or more sections , subsections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION V: If any section , subsection , sentence , clause , phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction , such decision shall not affect the validity of the remaining portions of this ordinance . The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section , subsection , sentence , clause , phrase or portion thereof irrespective of the fact that any one or more sections , sub- sections , sentences , clauses , phrases or portions be declared invalid or unconstitutional . SECTION VI : This ordinance shall be effective upon its passage , and approval and thirty (30) days after its publication . PASSED BY THE CITY COUNCIL this 14th day of June , 1982 . d Delores A. Mea , LCity Clerk APPROVED BY THE MAYOR this 14th day of June , 1982 . •5kI Lpoc .. Barbara Y . Shinpoch , Mayor Approved as to form: • i Lawrence J . V arren,City Attorney • Date of Publication : .Juno 18, 1982 1 411 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 PLAYTIME THEATRES , INC. , et al . , ) ) 10 Plaintiffs , ) 11 v. ) CASE NO. C82-59M 12 CITY OF RENTON, et al . , ) ) 13 Defendants . ) ) REPORT AND RECOMMENDATION 14 ) CITY OF RENTON, et al. , ) 15 ) Plaintiffs , ) 16 ' ) v. ) CASE NO. C82-263M 17 ) ' PLAYTIME THEATRES , INC. , et al . , ) 18 ) Defendants . ) 19 ) 20 INTRODUCTION AND SUMMARY CONCLUSION 21 - On February 23 , 1982 , the Court, approving and adopting a 22 Report and Recommendation filed February 3 , 1982 (Dkt. #22) , entered an order denying plaintiffs ' motion for temporary re- 23 /I straining order (Dkt. #39) . Three motions are presently befor- 24 25 the Court : First, plaintiffs ' motion for preliminary injunc- 26 tion, second, defendants ' renewed motion to dismiss , and , thir. , defendants ' motion for summary judgment. At a hearing conduct 27 ed on June 23 , 1982 , the undersigned heard oral testimony, 28 received documentary evidence, and heard the arguments of 29 counsel with respect to all three motions . Based thereon and 30 upon the affidavits and the balance of the record before me , 31 and for the reasons set forth herein in some detail , I conclud= 32 REPORT AND RECOMMENDATION - 1 I-TI-SST-1111 78 1ZS\1-1215 • !that plaintiffs have established both a clear likelihood of I � success on the merits and irreparable injury. I recommend that 3 the Court enjoin enforcement of Renton ' s zoning ordinance deal- 4 ing with adult theatres . I also, of course , recommend denial 5 of defendants ' dismissal and summary judgment motions . 6 THE RECORD BEFORE THE COURT 7 (A) The Ordinances . 8 In April of 1981 , the City of Renton enacted Ordinance 9 No. 3526 providing that adult motion picture theatres as de- c 10 'fined therein were prohibited: 11 (1) Within or within 1, 000 feet of any residential 12 zone or single family or multiple family use; 13 (2) Within one mile of any public or private school; 14 (3) Within 1 ,000 feet of any church or other reli- 15 gious facility or institution; and, 16 (4) Within 1 ,000 feet of any public park or P-I zone . 17 Early in 1982 , plaintiffs acquired two existing theatre 18 buildings in the City of Renton. It was their intention to 19 show feature length sexually explicit adult films in one of 20 ithem. The theatre buildings , however, were located in an area 21 ( proscribed by Ordinance No. 3526 , prompting plaintiffs to corn- '22 mence the present action seeking damages and an injunction prohibiting enforcement of the ordinance on due process , First 23 Amendment, and equal protection grounds . Their principle con- 24 tentions are that the City of Renton failed to factually suppo t 25 26 a sufficient governmental interest justifying intrusion upon protected speech and that the ordinance was not a mere loca- 27 tional restriction but a virtual prohibition of adult theatres 28 in the City of Renton. 29 While the case was pending, more specifically in May, 198 • , 30 ! defendant City of Renton enacted Ordinance No. 3629 , which 31 amended Ordinance No. 3526 . The principle changes were : 32 REPORT AND RECOMMENDATION - 2 FI'I- SST-in:b7k 125>t-1215 111 1 (1) The amending ordinance contained an elaborate 9 statement of the reasons for enacting both Ordinance No. 3 3526 and Ordinance No. 3629 ; 4 (2) A definition of the word "used" was added; 5 (3) Violation of the use provisions of the ordinance G was declared to be a nuisance per se to be abated civilly 7 and not by criminal enforcement; 8 I (4) The required distance of an adult theatre from a 9 school was reduced from one mile to 1 , 000 feet; and , 10 (5) A severability clause was added. 11 The amending ordinance, No. 3629 , also contained an emer- 12 gency clause and was to be effective as of the date of its 13 passage and approval by the mayor, May 3 , 1982 . 14 On June 14 , 1982 , defendants passed yet a third ordinance , 15 No. 3637 , which was identical to Ordinance No. 3629 in all 16 respects except that the emergency clause was deleted and the II 17 ordinance was to become effective thirty days following its 18 publication . 19 While plaintiffs argue that the only ordinance before the 20 Court is No. 3526 , they are clearly incorrect. Their request 21 for injunctive relief obligates the Court to consider any and all changes in the applicable zoning scheme to the date of its 22 ruling. 23 (B) Events Leading to Passage of the Ordinances . 24 The City of Renton presently has no theatres which exhibit 25 sexually explicit adult films. It appears that in May of 1980 , 26 at the suggestion of a City of Renton hearing examiner, the 27 mayor suggested to the City Council that they consider the 28 advisability of passing zoning legislation dealing with adult 29 entertainment uses , specifically "adult theatre [s] , bookstore [s] , 30 ifilm and/or novelty shop [s] " prior to the time any such busi- 31 nesses might seek to locate in the city. The mayor ' s memorandum 32 REPORT AND RECOMMENDATION - 3 PPI-SST-10:,.H 125M-U3. 1 isuggested that some cities had experienced difficulties in ,1"re-doing" their zoning ordinances once such uses were esta- 3 bl iished in the community. 3 4 On March 5 , 1981 , the Planning and Development Committee of the Council held a meeting for the purpose of taking public 6 .testimony on the subject. While there is no record of that meeting, Mr. Clemens , then the City ' s acting Planning Director 7 8 liwho was present at the meeting, testified that the Superinten- 9 (dent of Schools , and the President of the Renton Chamber of 10 j'Commerce spoke to concerns about adverse affects which adult 11 entertainment uses would have upon the economic health of 12 Renton' s businesses and upon children going to and from school . 13 He also testified that other citizens spoke generally about the 14 adverse affects of such uses . Mr. Clemens further testified 15 that he and his department reviewed the decisions of the Wash- 16 Iington State Supreme Court in Northend Cinemas v. Seattle, 90 17 iWn . 2d , 709 , and of the United States Supreme Court in Young v. American Mini Theatres , 427 U. S . 50 (1976) , and presented the 18 information from their review to the Planning and Development 19 Committee . He indicated generally that review of those cases 20 indicated that adult entertainment uses tend to decrease pro- 21 Iperty values and increase crime. 22 On April 6 , 1981 , the Planning and Development Committee 23 of the Council recommended that an appropriate zoning ordinance 24 be written to reflect the following conditions : 25 " (a) No adult motion picture theatre will be 26 allowed in an area used or zoned residential or in any P-I public use area. 27 " (b) A suitable buffer strip of 1 , 000 feet 28 from any residential or P-I area also be a banned area; 29 " (c) The area enclosed in a one mile radius 30 of any school (this is the minimum student walking distance) would also be a banned area. " 31 Ordinance No. 3526 was the result. 32 REPORT AND RECOMMENDATION - 4 I'I'I-S.T-1U1I.70 1 131•121i • 1 (C) The Effect of the Ordinance . 2 While the record would indicate that there are some 200 3 acres of property within the city limits of Renton where 4 an adult theatre might conceivably locate, the testimony and 5 affidavits show that, with but one exception, none of that pro-' 6 perty would be suitable for the location of a theatre . The 7 ' area is largely undeveloped and what development there is is 8 ' entirely unsuitable for retail purposes in general and for 9 , theatre purposes in particular. The developed areas include : i 10 (1) A Metro sewage disposal site and treatment plant; 11 (2) Longacres Racetrack and environs; 12 (3) A business park containing buildings suitable 13 only for industrial use; 14 (4) Warehouse and manufacturing facilities; 15 (5) A Mobile Oil tank farm; and, 16 (6) A fully developed shopping center . 17 The entire area potentially available for the location of i8 an adult theatre is far distant from the downtown business 19 idistr. ict , not well lit during night time hours , and also 20 ' generally devoid of pedestrian and vehicular traffic during 21 such hours . 22 The two sites which are potentially suitable are fully developed and occupied by fast food restaurants . 23 DISCUSSION 24 As indicated in my prior Report and Recommendation, the 25 26 party requesting injunctive relief must clearly show either : 27 (1) probable success on the merits and possible irreparable injury, or (2) sufficient serious questions as to the merits 28 to make them a fair ground for litigation and a balance of 29 hardship tipping decidely in favor of the party seeking relief , 30 Los Angeles Memorial Coliseum Commission v. N .F.L. , 634 'F. 2d 31 1197 (9th Cir. 1980) . I conclude that plaintiffs meet the , 32 foregoing test. FPI-SST-10:17E1 I35M1-1215 REPORT AND RECOMMENDATION - 5 • (1) Probability of Success on the Merits. 2 A city ' s authority to zone is a well recognized aspect of 3 the police power. But when a zoning ordinance infringes upon 4 speech protected by the First Amendment, it must be narrowly I 5 'drawn to further a substantial government interest. Schad v. 6 Borough of Mt. Ephraim, 452 U.S . 61 (1981) ; Kuzinich v. County 7 of Santa Clara , F. 2d , No. 81-4460 Ninth Circuit slip 8 Ilop. October 12 , 1982 . The City of Renton ' s zoning ordinance 9 ,relating to adult theatres plainly implicates First Amendment 10 1rights . It is not limited to motion picture theatres catering 11 to those with an appetite for obscene films falling outside the 12 protections of the First Amendment, Miller v. California, 413 13 U. S . 15 (1973) . Rather, patterned upon the ordinance approved 14 in Young v. American Mini Theatres , 427 U.S. 50 (1976) , it re- 15 gulates sexually explicit but nonobscene films as well . 16 Defendant City of Renton contends , however , that no First 17 iAmendment rights are involved because the ordinance only regu- 18 ,lates the time , place, and manner of the operation of adult 19 (theatres . It relies on American Mini Theatres , supra. However , 20 I believe the ordinance in American Mini Theatres is clearly 21 distinguishable . The ordinance in the instant case, for all 22 practical purposes , excludes adult theatres from the City of ('Renton and therefore greatly restricts access to lawful speech. 23 24 The ordinance approved in American Mini Theatres had no such effect. 25 • 26 Defendants contend that the City has provided an area 27 within which adult theatres may locate. However, while in 28 theory such area is available , in fact, the area is entirely unsuited to movie theatre use . Restricting adult theatres to 29 the most unattractive , inaccessable , and inconvenient areas of 30 the city has the effect of suppressing or greatly restricting 31 access to lawful speech . American Mini Theatres , supra , 427 32 REPORT AND RECOMMENDATION - 6 FI'I-SST-I0.17$ I_551-1'215 • 1 U. S . at 71 n. 35 . See Basiardanes v. City of Galveston, 682 F. 2 2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson , 3 667 F. 2d 659 (8th Cir . 1981) ; Keego Harbor Co. v. City of 1 Keego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City 5 of Minneapolis , 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple 6 Onion , Inc. v. Jackson , 511 F. Supp. 1207 (N.D. Ga. 1981) ; 7 Bayside Enterprises , Inc. v. Carson, 450 F. Supp. 696 (M. D. Flar 8 '1978) ; E & B Enterprises v. City of University Park , 449 F . 9 .Supp. 695 (N.D. Tex. 1977) ; cf . Deerfield Medical Center v. 10 'City of Deerfield Beach, 661 F. 2d 328 (5th Cir . 1981) . 11 Because the Renton ordinance drastically impairs the 12 availability in Renton of films protected for adult viewing by 13 the First Amendment, it must be reviewed under the stringent t 14 standards of Schad, supra . Schad directs the court to examine 15 the strength and legitimacy of the governmental interest behind 16 the ordinance and the precision with which it is drawn. Unless 17 ithe governmental interest is significant and is advanced with- 18 lout undue restraint on speech, the ordinance is invalid . Schad , 19 'f 452 U.S . at 70 . 20 The City of Renton has asserted that it has a substantial governmental interest in zoning restrictions which will prevent 21 deterioration of its neighborhoods and its downtown areas . But 22 it is not sufficient to assert such interest. The City must 23 establish a factual basis for its asserted reasons and that it 24 considered those facts in passing the ordinance . Those reasons 25 must be unrelated to the suppression of free expression . 26 United States v. O ' Brien , 391 U.S . 367 (1968) ; Kuzinich v. 27 County of Santa Clara, supra. 28 Many of the conclusory statements of the reasons for 29 enacting the Renton ordinances reflect simple distaste for 30 adult theatres because of the content of the films shown. 31 Those statements directed at legitimate fears such as preven- 32 REPORT AND RECOMMENDATION - 7 ,,ST-10:1 7N I!15i-1215 • 1 ', tion of crime and deterioration of business and residential I � 9 neighborhoods are based principally upon the Planning Depart- '; i'ments review of other court cases in which zoning legislation 1 regulating the location of adult businesses has been approved . 5 'The City had little or no empirical evidence before it when the 6 initial ordinance was passed. More is required. Avalon Cinema! 7 Corporation v. Thompson , supra; Keego Harbor Co. v. City of 8 Keego Harbor, supra; Basiardanes v. City of Galveston , supra . 9 I conclude that the manner in which the ordinance was enacted, 10 fits narrow focus on adult theatres to the exclusion of other 11 ( adult entertainment uses which would presumedly contribute to 12 the same concerns , and the fact that most of the findings set forth 13 in the amendatory ordinance reflect citizen distaste for adult 14 theatres because of the film fare shown, suggests an improper 15 motive . 16 Even ass.uning that the City has established a substantial 17 ' governmental interest, however, the ordinance will not pass 18 constitutional muster. The ordinance must be narrowly drawn I 1J 'to serve that interest with only a minimum intrusion upon First 20 ! Amendment freedoms . Schad, supra. Here the intrusion upon 21 First Amendment expression is not minimal . Adult theatres are , 22 for all practical purposes , excluded from the City of Renton. IThe ordinance constitutes a prior restraint on speech and shoul. 23 ! be held to be unconstitutional . 24 (2) Irreparable Injury. 25 26 Irreparable injury is clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected to civil 27 28 abatement proceedings . The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes 29 irreparable injury in the context of a suit for injunctive 30 relief. Elrod v. Burns , 427 U.S. 373 (1976) ; Deerfield Medical 31 Center v. City of Deerfield Beach, supra; Citizens for a Bette 32 Environment v. City of Park Ridge , 567 F. 2d 689 (7th Cir. 1975) . iv,- SST-111.17M I735 REPORT AND RECOMMENDATION - 8 • 1 I recommend that the Court enjoin enforcement of City of •, iRenton Ordinance No. 3637 pending disposition on the merits . 3 ,A proposed form of Order accompanies this Report and Recommen- 4 Idation. 5 I DATED. this 5th day of November, 1982 . 6 Philip K. Sweigert 8 United States Magistrate 9 10 11 12 13 14 15 16 17 18 19 20 21 1 • 22 23 24 25 26 27. • 28 29 30 31 32 I REPORT AND RECOMMENDATION - 9 I'PI -SST-103--78 125\I-1235 • ) 3 4 r 6 UNITED STATES DISTRICT COURT 7 i WESTERN DISTRICT OF WASHINGTON ( 8 i AT SEATTLE PLAYTIME THEATRES , INC. , et al . , ) 9 ) Plaintiffs , ) 10 ) v. ) CASE NO. C82-59M 11 ) CITY OF RENTON, et al . , ) 12 ) Defendants . ) ORDER DENYING DEFENDANTS ' 13 ) MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND 14 'CITY OF RENTON , et al. , ) GRANTING PRELIMINARY INJUNCTION PENDENTE LITE 15 Plaintiffs , ) 16 ) v. ) CASE NO. C82-263M ) 17 'PLAYTIME THEATRES , INC. , et al . , ) 18 Defendants . ) 19 ) The Court, having considered plaintiffs ' motion for --- 20 preliminary injunction, defendants ' renewed motion to dismiss 21 land motion for summary judgment, the Report and Recommendation 22 lof United States Magistrate Philip K. Sweigert, and the balance 23 of the records and files herein, does hereby find and ORDER: 24 (1) Said Report and Recommendation is hereby approved 25 and adopted; 26 (2) Defendants ' motion for summary judgment and renewed 27 motion to dismiss and hereby DENIED; 28 (3) Defendant City of Renton, its officers , agents , 29 servants , employees , successors , attorneys , and all those in 30 active concert or participation with them, are enjoined from 31 enforcing City of Renton Ordinance No. 3637 against plaintiffs , 32 ORDER - 1 FPI-ssF—I0:t7b 123\1—1233 • I said preliminary injunction to remain in effect pending a 9 decision by this Court on the merits and until further order ofl :3 the Court; and, 4 (4) The Clerk of Court is to direct copies of this Order 5 to all counsel of record and to Magistrate Sweigert. 6 DATED this day of , 1982 . 7 8 CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 • 21 • 22 23 24 25 • 26 27- • 28 29 30 31 32 ORDER - 2 F•P1—SSTT—I03.78 1a5>1—iri5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 8 PLAYTIME THEATRES , INC. , a ) 9 Washington corporation , and KUKIO ) BAY PROPERTIES , INC. , a Washington) �10 corporation , ) NO 1 0. 59 NE 11 Plaintiffs , ) ORDER TO SHOW CAUSE vs . ) WHY PRELIMINARY INJUNCTION 12 ) SHOULD NOT ISSUE THE CITY OF RENTON , et al . , ) 13 ) Defendants . ) 14 THIS MATTER coming on for hearing before the Court on the 15 motion of the plaintiffs for an Order to show cause , and the Court 16 having considered and read the verified Complaint of pliantiffs in 17 this action , and good cause appearing therefor , 18 IT IS HEREBY ORDERED, that the above-named defendants appear 19 and show cause in the above entitled Court on 20 1982 at o ' clock a.m. , or as soon thereafter as counsel 21 may be heard , why a preliminary injunction restraining the 22 defendants , their servants , agents , employees , attorneys and others 23 acting under their direction and control from enforcing or execut- 24 ing and/or threatening to enforce and/or execute the provisions of 25 Ordinance No . 3526 in whole and/or in part , should not issue . 26 DATED at Seattle , Washington this day of 27 1982 . 28 29 UNITED STATES DISTRICT JUDGE Presented by: 30 HUBBARD, BURNS� & MEYER 31 BY , K f . 61,144. .a -� Ja,ck . Burns Actor ey for Plaintiffs ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Order to Show Cause Kirkland,Washington 98033 (206)828-3636 • 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE WESTERN DISTRICT OF WASHINGTON 8 PLAYTIME THEATRES , INC. , a ) Washington corporation , and KUKIO ) 9 BAY PROPERTIES , INC. , a Washington) 2 ,.� corporation , ) NO. 9 M 10 Plaintiffs , ) MOTION FOR 11 vs . ) PRELIMINARY INJUNCTION ) (ORAL ARGUMENT REQUESTED) 12 THE CITY OF RENTON, et al. , ) ) 13 Defendants . ) 14 COME NOW the plaintiffs herein , by and through their 15 attorneys , and respectfully move this Honorable Court for a 16 preliminary injunction restraining defendants and their agents , 17 servants , employees , attorneys and others acting under their 18 direction and control , from enforcing or executing and/or thraten- 19 ing to enforce and/or execute , the provisions of Ordinance No . 3526 20 in whole and/or in part , pending a final hearing and determination 21 on plaintiffs ' application for a permanent injunction . 22 This motion is based upon plaintiffs ' verified Complaint on 23 file herein and upon the Memorandum of Authorities filed herewith 24 in support of this motion . 25 Plaintiffs further move that this matter be set for hearing 26 as soon as practicable and that the Court hear oral argument from 27 all parties . 28 DATED this .)- 1 day of ' _, 1982. 29 Respectfully submitted , HUBBARD, BURNS & MEYER 30 BY`, i2. r 31 Jac R. Burns Att ney for Plaintiffs ATTORNEYS AT LAW Motion for Preliminary Injunction . . . Hubbard, Burns & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 Of Counsel : 2 Robert Eugene Smith , Esq . 3 16133 Ventura Blvd. Penthouse Suite E 4 Encino, California 91436 (213) 981 -9241 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ATTORNEYS AT LAW Motion for Preliminary Injunction . . . Hubbard, Burns & Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , a ) Washington corporation , and KUKIO ) 11 BAY PROPERTIES, INC. , a Washington) NO. (1/ E 2 i. 5 9 11/ corporation , ) 12 ) Plaintiffs , ) MOTION FOR LEAVE TO 13 vs . ) FILE A BRIEF OF ) TWENTY PAGES 14 THE CITY OF RENTON, et al. , ) ) 15 Defendants . ) 16 COME NOW the plaintiffs herein , by and through their 17 attorneys , and respectfully move this Honorable Court for leave to 18 file a brief of twenty pages pursuant to CR 5(c) of the Rules of 19 the United States District Court for the Western District of 20 Washington , in support of their Motion For A Preliminary 21 Injunction . This motion is based upon the annexed affidavit of 22 counsel . • 23 DATED this ,- A day of , 1982. 24 Respectfully submitted , 25 HUBBARD, BURNS & MEYER 26 BY 12. dr-AiL., 27 Jac R. Burns Atto ney for Plaintiffs 28 29 30 31 Motion for Leave to File ATTORNEYS AT LAW A Brief of 20 Pages Hubbard, Burns & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 STATE OF WASHINGTON ) ) ss . 2 COUNTY OF KING ) 3 Jack R. Burns being first duly sworn on oath , deposes and 4 says : 5 1 . I am one of the attorneys for the plaintiffs herein and 6 make this affidavit in support of plaintiffs ' motion . 7 2 . Plaintiffs have filed a motion for a preliminary 8 injunction . Plaintiffs deem it necessary at the hearing on the 9 Motion For A Preliminary Injunction to fully present the legal 10 merits of their case ; and as such , have prepared a memorandum which 11 exceeds the length limitations of CR 5(c) of the rules of the 12 United States District Court for the Western District of 13 Washington . 14 3 . The plaintiffs ' memorandum discusses the substantial 15 issues and constitutional questions that plaintiffs feel are raised 16 by their Complaint with regard to the constitutionality of the 17 municipal zoning ordinance in question . In order to adequately 18 discuss the issues involved , the following matters are treated in 19 the memorandum : 20 ( 1 ) Does the court have jurisdiction over the subject 21 matter of this action? 22 (2) Is there a justiciable controversy between the 23 parties? 24 (3) Is the ordinance an unconstitutional restriction on 25 protected expression because no legitimate public interest is 26 served? 27 (4) Is the ordinance unconstitutional because it 28 creates a statutory classification based upon the content of 29 protected expression? 30 ( 5) Is the ordinance unconstitutional because it is 31 overbroad in its definitions? Motion for Leave to File ATTORNEYS AT LAW A Brief of 20 Pages Hubbard, Burns & Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 ti aw 1 4. For the foregoing reasons , the plaintiffs ask that leave 2 be granted to file a brief of 20 pages so that these substantial 3 issues may be fully dealt with . 4 5 6 Jack R. Burns 7 SUBSCRIBED AND SWORN to before me- t is /4 day of January, 1982. 8 9 / Notary P lic in and for the 10 State ashi n residing at 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ATTORNEYS AT LAW Motion for Leave to File A Brief of 20 Pages Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 JAN20 3 F,..7 c 115. DISTY.;;,i 'uli LeiT C.:`I:Rtl DISTRICT Of `iYA 1-111 Lxi UTY 4 BY 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC. , a ) 10 Washington corporation , and KUKIO ) • BAY PROPERTIES, INC. , a Washington) 5 Q 11 corporation , ) N . 8j !J 12 Plaintiffs , ) PLAINTIFFS' MEMORANDUM vs . ) IN SUPPORT OF MOTION FOR 13 ) PRELIMINARY INJUNCTION THE CITY OF RENTON, et al . , ) 14 ) Defendants . ) 15 FACTUAL BACKGROUND 16 The factual allegations relevant hereto are set forth on 17 18 pages 6 to 8 of plaintiffs ' verified Complaint for Declaratory 19 Judgment and Preliminary and Permanent Injunction . THE FEDERAL COURTS SHOULD HASTEN TO GRANT INJUNCTIVE 20 RELIEF, AS PRAYED FOR, WHERE FUNDAMENTAL CONSTITUTIONAL 21 RIGHTS ARE INVOLVED AND THE DANGER OF A "CHILLING" OF THOSE RIGHTS IS THREATENED BY THE ACTS OF THE DEFENDANTS. 22 In Dombrowski v. Pfister , 380 U. S. 479 (1965) the Supreme 23 Court , in its opinion , stated : 24 But the allegations in this complaint depict 25 a situation in which defense of the State ' s criminal prosecution will not assure adequate 26 vindication of constitutional rights . They suggest that substantial loss or impairment 27 of freedoms of expression will occur if Appellants must await the State Court ' s dis- 28 position and ultimate review in this Court of any adverse determination . These allega- 29 tions , if true, clearly show injury. 30 When the statues also have an overbroad sweep, as is here alleged , the hazard of loss 31 or substantial impairment of those precious ATTORNEYS AT LAW Memo. in Support of Mo. for Preliminary Injunction Hubbard, Burns & Meyer Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 rights may be critical . For in such cases , the statutes lend themselves too readily to 2 denial of those rights . The assumption that defense of a criminal prosecution will gener- 3 ally assure ample vindication of constitu- tional rights is unfounded in such cases . 4 See Baggett v. Bullitt , supra , 377 U.S. 379 , for " [the] threat of sanctions may deter . 5 almost as potently as the actual application of sanctions . . ." NAACP v. Button , 371 U. S. 6 415 , 433. Because of the sensitive nature of constitutionally protected expression, we 7 have not required that all of those subject to overbroad regulations risk prosecution to 8 test their rights . For free expression - of transcedent value to all society, and not 9 merely to those exercising their rights - 10 might be the loser. 11 By permitting determination of the invalidity of these statutes without regard to the per- 12 missibility of some regulation on the facts of particular cases , we have, in effect , 13 avoided making vindication of freedom of expression await the outcome of protracted 14 litigation . Moreover , we have not thought that the improbability of successful prosecu- 15 tion makes the case different . The chilling effect upon the exercise of First Amendment 16 rights may derive from the facts of the pros- ecution, unaffected by the prospects of its 17 success or failure . " 18 In Zwickler v. Koota , 389 U. S . 241 (1967) , the Court stated : 19 . . . Congress imposed the duty upon all levels of the Federal judiciary to give due respect 20 to a suitor 's choice of a federal forum for the hearing and decision of his federal con- 21 stitutional claims . Plainly, escape from that duty is not permissible merely because 22 state courts also have the solemn responsi- bility, equally with the federal courts , " . . . 23 to guard, enforce and protect every right granted or secured by the Constitution of the 24 United States . . . " Rob v. Connolly, 111 U. S. 624. "We yet like to believe that whenever 25 the federal courts sit, human rights under the federal constitution , are always a proper 26 subject for adjudication, and that we have not the right to decline the exercise of the 27 jurisdiction , simply because the rights asserted may be adjudicated in some other 28 forum. 29 The standards applicable to the preliminary injunctive 30 relief sought here are well settled : 31 ATTORNEYS AT LAW Memo. in Support of Mo. for Preliminary Injunction Hubbard, Burins & Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 To justify a temporary injunction , it is not necessary that the plaintiff's right to a 2 final decision , after a trial be absolutely certain, wholly without doubt ; if the other 3 elements are present (i .e . , the balance of hardships tips decidedly toward plaintiff) it 4 will ordinarily be enough that the plaintiff has raised questions going to the merits so 5 serious , substantial , difficult and doubtful , as to make them a fair ground for litigation , 6 and thus for more deliberate investigation . Hamilton Watch Co . v. Benrus Watch Co . , 206 7 F. 2d 738 , 740 (2nd Cir . 1953) . 8 Plaintiffs need only demonstrate a reasonable probability of 9 success on a final hearing. United States v. Ingersoll-Rand Co . , 10 320 F. 2d 509 (3rd Cir. 1963) . 11 In Mason County Medical Association v. Kenbel , 563 F. 2d 256 , 12 at 261 (6th Cir . 1977) , the Sixth Circuit Court of Appeals enunci- 13 ated the standards to be applied by the District Court in determin- 14 ing whether to grant preliminary injunctive relief : 15 1 . Whether the [plaintiff has ] shown a strong or substantial likelihood or porbability of 16 success on the merits . 17 2 . Whether the [plaintiff has ] shown irrepar- 18 able injury. 19 3 . Whether the issuance of a preliminary injunction would cause substantial harm to 20 others . 21 4. Whether the public interest would be served by issuing a preliminary injunction . • 22 And See : Roth v . Bank of the Commonwealth, 583 F. 2d 527 , 23 537 (6th Cir . 1978) . 24 In Roth v. Bank of the Commonwealth , supra , the Appellate 25 Court , Judge Engel speaking for the Court , quoted with approval 26 from an opinion of District Judge Feiken ' s in Metropolitan Detroit 27 Plumbing & Mechanical Contractors Assn. v. H.E.W. , 418 F. Supp . 585 , 28 586 (E. D. Mich. 1976) : 29 This apparent disparity in the wording of the 30 standard merely reflects the circumstance that no single factor is determinative as to the 31 appropriateness of equitable relief. In addi- Memo . in Support of Mo . ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 tion to assessing the likelihood of success on the merits , the court must consider the irrep- 2 arability of any harm to the plaintiff , the balance of injury as between the parties , and 3 the impact of the ruling on the public inter- est. In general, the likelihood of success 4 that need be shown will vary inversely with the degree of injury the plaintiff will suffer 5 absent an injunction . It thus appears that the precise wording of the standard for the 6 likelihood of success on the merits is not as important as a realistic appraisal of all the 7 traditional factors weighed by a court of equity. A balancing is required, and not the 8 mechanical application of a certain form of words . 9 And See : Llewelyn v. Oakland County Pros . , 402 F. Supp . 10 1379 , 1393 (1975) . 11 The Supreme Court has held that it was within the proper 12 exercise of discretion of the District Court to grant a preliminary 13 injunction against the enforcement of an ordinance prohibiting top- 14 less dancing based upon the probable entitlement of the plaintiffs 15 to ultimate declaratory relief on the merits . Doran v. Salem Inn , 16 Inc . , 422 U. S. 922 (1975) . 17 The Seventh Circuit Court of Appeals reversed a denial of a 18 preliminary injunction in a case involving First Amendment rights . 19 In Citizens for a Better Environment v. City of Oak Ridge , 567 F. 2d 20 689 (1975) , the Court , in a per curiam opinion , first stated the 21 22 applicable standard to be applied : 23 In determining whether to grant a preliminary injunction, the district court must balance 24 the probability of ultimate success at the final hearing with the consequences of imme- 25 diate irreparable injury possibly stemming from denial of the injunction. Scherr v. 26 Volpe , 466 F. 2d 1027 , 1030 (7th Cir . 1972) . The standard of review in an appeal from the 27 denial of a preliminary injunction is whether the district court abused its discretion. Id . 28 We are satisfied in this case that CBE estab- 29 lished both that it would suffer irreparable injury from the denial of the injunction and that it had a substantial likelihood of pre- vailing on the merits . 31 Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 4 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 The Court then went on to hold : 2 Initially, it must be noted that this Court 3 has previously held that even the temporary deprivation of the First Amendment rights 4 constitutes irreparable harm in the context of a suit for an injunction . Schnell v. 5 Chicago , 407 F.2d 1084, 1086 (7th Cir. 1969) 6 The Court concluded that the plaintiff had met its burden 7 and reversed the denial of preliminary injunctive relief . And See : 8 Moore v. East Cleveland , 431 U. S. 494, Burger C.J. , dissenting , at 9 528 , Note 3. 10 The restrictions imposed upon the Dombrowski authorization 11 for the granting of injunctive relief against enforcement of state 12 statutes by such decisions as Younger v. Harris , 401 U.S . 37 , and 13 its companion cases , and more recently by Hichs v. Miranda , 422 14 U .S . 332 ; Samuels v. Mackell , 401 U.S . 66 (1971 ) ; Boyle v. Landy, 15 401 U. S . 71 (1971 ) ; Byrne v. Karalexis , 401 U.S. 216 (1971 ) ; and 16 Dyson v. Stein , 401 U. S . 200 (1971 ) , supra , have been shown to have 17 no application to the case at bar because (1 ) no state proceeding 18 has been commenced against the various plaintiffs , and (2) we do 19 not seek to interfere with the orderly state prosecution of an 20 ongoing criminal proceeding. Steffel v. Thompson , 415 U.S. 452 ; 21 Village of Belle Terre v. Boraas , 416 U. S. 1 , 3 fn 1 (1974) ; Doran 22 v. Salem Inn , Inc . , supra. 23 Upon the evidence that will be presented to this Court upon 24 hearing, and the authorities that will be discussed , the necessary 25 showing of probability of success on the merits of this action and 26 irreparable harm to plaintiffs will be made , and the preliminary 27 injunction prayed for should be issued . 28 PLAINTIFFS NEED NOT EXHAUST THEIR 29 ADMINISTRATIVE REMEDIES 30 Constitutional violations may arise from the deterrent or 31 "chilling" effect of governmental regulations that fall short of a ATTORNEYS AT LAW Memo. in Support of Mo. Hubbard, Burns & Meyer for Preliminary Injunction Page 5 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 direct prohibition against the exercise of First Amendment rights . 2 Laird v. Tatum , 408 U. S . 1 (1971 ) ; Beard v. State Bar of Arizona , 3 401 U. S . 1 (1971 ) ; Keyishian v. Board of Regions , 385 U. S . 589 4 ( 1967) ; Lamont v. Post Master General , 381- U.S. 301 (1965) ; Bagget 5 v. Bullitt , 377 U.S. 360 (1964) . . . . In each of these cases , the 6 challenged exercise of governmental power was regulatory, proscrip- 7 tive , or compulsory in nature , and the complainant was either 8 presently or prospectively subject to the regulations , prosciptions 9 or compulsions that he was challenging. . . . The decisions in 10 these cases fully recognize that governmental action may be subject 11 to constitutional challenge even though it has only an indirect 12 affect on the exercise of First Amendment rights . 13 In the instant case , however , the effect on plaintiffs ' 14 First Amendment rights are immediate and direct in that plaintiffs 15 cannot operate their movie theatre without subjecting themselves to 16 arrest or submitting to a futile and unconstitutional administra- 17 tive process . 18 It can no longer be questioned that expression by means of a 19 motion picture is included within the Free Speech and Press guaran- 20 tees of the First and Fourteenth Amendments . Erznoznik v. City of 21 Jacksonville , 422 U. S. 205 ; Jenkins v. Georgia , 418 U.S. 153 ; 22 Interstate Circuit , Inc . v. City of Dallas , 390 U.S. 676 ; L.M. 23 Amusement Corp. v. Ohio , 389 U.S . 573 ; Jacobellis v. Ohio , 378 U. S. 24 184 (1964) ; Kingsley International Pictures Corp. v. Regents of 25 University of State of New York, 360 U. S. 684; Joseph Burstyn , Inc . 26 v. Wilson , 343 U. S . 495. 27 The mode of expression is as entitled to protection as 28 expression itself. Roaden v. Kentucky, 413 U.S. 496 ; Griswold v. 29 Connecticut , 381 U. S. 479 ; Martin v. Struthers , 319 U.S . 141 ; 30 Lovell v. Griffin , 303 U. S. 444. And it is equally well estab- 31 Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 6 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 lished that any restraint or burden imposed upon a constitutionally 2 protected medium of expression comes into court bearing a heavy 3 presumption against its constitutionality. Freedman v. State of 4 Maryland , 380 U.S. 51 ; Bantam Books , Inc . V. Sullivan , 372 U.S. 58 . 5 THERE IS A GENUINE CASE OR CONTROVERSY BETWEEN THE PARTIES , AND THE PLAINTIFFS HAVE STANDING TO 6 CHALLENGE THE ZONING ORDINANCE AT ISSUE IN THE INSTANT LITIGATION. 7 The test for determining whether an actual controversy 8 exists for the purposes of ',the Declaratory Judgment Act , 28 USC 9 § 2201 , was discussed by the Supreme Court in Lake Carriers ' Assoc . 10 v. MacMullan , 406 U. S . 409 (1972) . In that case , the Supreme Court 11 reaffirmed the test stated in 1941 , Maryland Casualty Co . v. 12 Pacific Coal & Oil Co . , 312 U. S. 270 , 273 : 13 Basically, the question in each case is whe- 14 ther parties have adverse legal interests , of sufficient immediacy and reality to war- 15 rant the issuance of a declaratory judgment . 16 It is not necessary that plaintiffs first expose themselves 17 to actual arrest or prosecution to be entitled to challenge a 18 statute that they claim deters the exercise of their constitutional 19 rights . Steffel v. Thompson , 415 U.S. 452 , 460 (1974) . Indeed , 20 when a plaintiff ' s claims are rooted in the First Amendment , he is 21 entitled to rely on the impact of the ordinance on the expressive 22 activities of others as well as his own . Schad v. Borough of Mount 23 Ephraim , U. S. , 68 L.Ed .2d 671 (1981 ) . 24 In addition , plaintiffs meet the tests of standing as set 25 forth by the Supreme Court in Flast v. Cohen , 329 U.S. 82 , 99 , 199 26 ( 1 968) : 27 The "gist of the question of standing" is 28 whether the party seeking relief has "alleged such a personal stake in the out- come of the controversy as to assume that 29 concrete adverseness which sharpens the presentation of issues upon which the Court ao so largely depends for illumination of dif- 31 ficult constitutional questions ." Baker v. Memo . in Support of Mo . ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Bums & Meyer Page 7 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 Carr , 369 U. S. 186 , 204, 7 L. Ed . 663 , 82 S. 2 Ct . 691 ( 1962) . In other words , when stand- ing is placed in issue in a case , the ques- 3 tion is whether the person whose standing is challenged is a proper party to request an 4 adjudication of the particular issue and not whether the issue itself is justifiable . 5 Flast v.. Cohen , 329 U. S. 82, 99 , 100 (1968) . 6 And See : Entertainment Concepts III v. Maciejewski , 631 7 F.2d 497 (1980) . Also See : 40 L.Ed . 2d 783 . 8 Plaintiffs obviously have such a "stake in the outcome of 9 the controversy as to assume that concrete adverseness which 10 sharpens the presentation of issues ." If the enforcement of the 11 . ordinance in question is not enjoined by this Honorable Court , 12 plaintiffs will be forced to choose between foregoing the exercise 13 of fundamental First Amendment rights and subjecting themselves 14 and/or their agents , servants and employees to criminal prosecu- 15 tion , civil abatement proceedings as a nuisance , loss of business 16 income and revenues and forced closure of their business premises . 17 Clearly, plaintiffs have presented a case or controversy which is 18 genuine and which deserves resolution by this Court . 19 The plaintiffs , whose asserted rights under the First , 20 Fifth , and Fourteenth Amendments to the Constitution of the United 21 States are directly affected by the impact of the ordinance , 22 clearly have standing to attach the validity of the provisions of 23 Ordinance No . 3526 . 24 "Justiciability" not only involves analysis of the appropri- 25 ateness of the issues for decision by the court , but also concerns 26 whether denial of judicial relief at given time will cause hardship 27 to the parties . Wilderness Soc . v. Morton , 479 F. 2d 842 , 156 U.S. 28 App . D.C. 121 , cert . denied 93 S.Ct . 1550 , 411 U.S . 917 , 36 L.Ed . 2d 29 309 ; Alaska v. Wilderness Soc . , 93 S. Ct . 1550 , 411 U. S. 917 , 36 30 L. Ed. 2d 309 ; and Alyeska Pipeline Service Co . v. Wilderness Soc . , 31 ATTORNEYS AT LAW Memo. in Support of Mo. for Preliminary Injunction Hubbard, Burns & Meyer Page 8 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 93 S.Ct . 1550 , 411 U. S. 917 , 36 L. Ed . 2d 309 , appeal after remand 2 495 F. 2d 1026 , 161 U. S. App . D.C. 446 , cert . granted 95 S.Ct . 39 . 3 In the instant case , plaintiffs have invested over $800 , 000 4 in theatre buildings and improvements which will become valueless 5 to them if Ordinance No . 3526 is enforced . 6 A justiciable controversy exists where challenged provisions 7 are immediately applicable to a party. To refuse to hear plain- 8 tiffs ' claims would be tantamount to a decision on the constitu- 9 tional adequacy of the ordinance . Exxon Corp. v. Busbee , F.2d 10 , slip p. 6904 (May 11 , 1981 , 5th Cir . ) . 11 Discretion should be liberally exercised so as to satisfy 12 the remedial function of the Declaratory Judgment Act , 28 USC 2201 : 13 . . . i.e . , to afford a speedy and inexpensive method of adjudicating legal disputes without 14 invoking the coercive remedies of the old procedure and to settle legal rights and 15 remove uncertainty and insecurity from legal relationships without awaiting a violation of 16 the relationships . Aetna Casualty & Surety Co . v. Quarles , 92 F. 2d 31 , 325 (4th Cir . 1937) . 17 The essential test is whether a declaratory judgment would 18 serve a useful purpose . 6A Moore ' s Federal Practice , §57 . 08(3) , pp 19 20 57-63. Declaratory relief should be granted where : (1 ) there is a 21 live controversy between the parties , Powell v. McCormack, 95 U.S . 22 486 (1969) ; (2) no special statutory remedy exists , Katzenback v. 23 McClung , 379 U. S. 294 (1964) ; and (3) the judgment will effectively 24 settle the controversy between the parties . Gross v. Fox , 486 F. 2d 25 1153 (3rd Cir . 1974) . 26 In the instant case , all of the above hallmarks for granting 27 of declaratory relief are present . There is no doubt that plain- 28 tiffs are well within the ambit of the challenged ordinance , nor is 29 there any doubt that the defendants intend to , and will , enforce it 30 against plaintiffs . 31 Memo. in Support of Mo . ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 9 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 THE CITY OF RENTON ZONING ORDINANCE NO. 3526 IS REPUGNANT TO THE FIRST AMENDMENT AND THE EQUAL 2 PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IN THAT 3 WHEN DEALING WITH FREE PRESS FACILITIES , THERE IS CREATED A STATUTORY CLASSIFICATION THAT IS NOT 4 RATIONALLY RELATED TO A VALID PUBLIC PURPOSE NOR NECESSARY TO THE ACHIEVEMENT OF A COMPELLING 5 GOVERNMENTAL INTEREST. 6 Because Ordinance No . 3526 on its face creates a classifica- 7 tion based upon the content of protected expression , the City bears 8 the heavy burden of justifying the classification under the strict 9 scrutiny standard of judicial review under the Equal Protection 10 Clause . 11 " [T]he state may prevail only upon showing a 12 subordinating interest which is compelling . and the burden is on the government to 13 show the existence of such an interest . " . . . [ E]ven then , the state must employ "closely 14 drawn to avoid unnecessary abridgement . " . . . First National Bank of Boston v. Bellotti , 15 435 U. S. 765 , 786 (1978) . 16 The City of Renton has stated no rationale justifying the 17 difference of treatment between protected expression ; nothing in 18 the preamble or the body of the Ordinance serves to give notice as 19 to the legitimate state interests served by requiring an exhibitor 20 of adult -- but constitutionally protected -- films to locate in a 21 geographically obscure and inaccessible area while an exhibitor of 22 all other kinds of motion picture films need not meet the same 23 conditions . Further , assuming arguendo that Renton asserts an 24 interest which is both legitimate and substantial , the interest 25 asserted by the City and the means adopted to accomplish the end 26 sought to be accomplished by Renton must themselves be legitimate 27 and narrowly tailored , for even a legitimate governmental purpose 28 "cannot be pursued by means that broadly stifle fundamental 29 personal liberties when the end can be more narrowly achieved ." 30 Shelton v. Tucker , 364 U. S. 479 , 488 (1960) . 31 ATTORNEYS AT LAW Memo. in Support of Mo. for Preliminary Injunction Hubbard, Burns & Meyer Page 10 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 The village may serve its legitimate inter- 2 ests , but it must do so by narrowly drawn regulations designed to serve those inter- 3 ests without unnecessarily interfering with First Amendment freedoms . Hynes v. Mayor of 4 Oradell, supra , 425 U.S . , at 620 , 48 L. Ed . 2d 243 , 96 S. (,t . 1755 ; First National Bank of 5 Boston v. Belotti , 435 U. S . 765 , 786 , 55 L. Ed . 2d 707 , 98 S.Ct . 3126 (1978) . "Broad 6 prophylactic rules in the area of free ex- pression are suspect . Precision of regula- 7 tion must be the touchstone . " . . . NAACP v. Button , 371 U. S . 415 , 438 , 9 L. Ed . 2d 405 , 8 83 S .Ct . 328 ( 1963) . Schaumburg v. Citizens for a Better Environment , 444 U. S. 620 , 63 9 L. Ed . 2d 73 , 85 , 87-88 . 10 Moreover , in the area of free speech and press , judicial 11 *- deference to legislative judgments as to means and ends is consti- 12 tutionally impermissible and inappropriate ; both the end sought to t3 be accomplished and the means adopted to achieve that end are sub- 14 ject to strict judicial scrutiny. 15 The prohibition . . . turns on whether it can survive the exacting scrutiny necessitated 16 by a state-imposed restriction of freedom of speech. First National Bank of Boston v. t7 Belotti , supra at 786 . 18 Finally, there must be a clear , direct and definitive connection 19 between means and end . Schaumburg v. Citizens for a Better 20 Environment , supra at 88 , " . . . substantial relationship . . . " ; 21 Assuming , arguendo . . . a "compelling" interest . . . we find "no substantially relevant correl- 22 ation between the governmental interest asserted and the state 's effort to prohibit 23 appellants from speaking. " Shelton v. Tucker , 364 U. S. at 485. . . . First National Bank of 24 Boston v. Belotti , supra at 795 ; 25 * * * The restriction must directly advance the state interest involved ; the regulation 26 may not be sustained if it provides only ineffective or remote support for the 27 government 's purpose . Central Hudson Gas & Electric Co . v. Public Service Comm 'n . , 100 28 S .Ct . 2343 , U. S . (1981 ) . 29 and in the same case at footnote 7 , the Supreme Court went on to 30 state : 31 In Linmark Associates v. Township of Willing- ATTORNEYS AT LAW Memo. in Support of Mo. Hubbard, Burns & Meyer for Preliminary Injunction Page 11 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (2061 828-3636 1 boro , supra , . . . [431 U.S. 85] . . . we observed that there was no definite connection between 2 the township ' s goal of integrated housing and its ban on the use of "For Sale" signs in front 3 of houses . 431 U. S. at 95-96 . Central Hudson Gas & Electric Co . v. Public Service Comm'n . , 4 supra. 5 In this context , the essential question is , assuming that the means 6 chosen by Renton to advance its goals are themselves legitimate , 7 how do the methods by the City advance the asserted State interest? 8 In other words , whatever the end sought to be accomplished , how do 9 the locational provisions embodied in the ordinance advance or 10 achieve the end sought to be accomplished? 11 Turning to the interests asserted by the City, it should 12 first be noted that the City does not openly assert that Ordinance 13 No. 3526 was enacted to control pornography. If so stated , the 14 ordinance would clearly be void for overbreadth. Miller v. 15 California , 413 U. S . 15 (1973) . The legislative history and 16 minutes of the City, however , reflect that this was the real reason 17 for the enactment of Ordinance No . 3526 . Therefore , we must turn 18 to the interests asserted by the ordinance when viewed in the 19 context of the legislative history. 20 ADULT USES PER SE HAVE SERIOUS OBJECTIONAL, 21 OPERATIONAL CHARACTERISTICS WHEN THEY ARE LOCATED IN NEIGHBORHOOD OR COMMUNITY COMMERCIAL 22 DISTRICTS OR IN CLOSE PROXIMITY TO RESIDENTIAL, • EDUCATION, OR RELIGIOUS USES. 23 The record before the City Council clearly failed to estab- 24 lish that adult theatres cause significant law enforcement problems 25 in the City of Renton . There was no evidence before the Planning 26 Commission or City Council to support any finding that adult busi- 27 nesses cause : 28 1 . deterioration of residential neighborhoods ; 29 2 . handicap the instruction of moral values to school age 30 children ; 31 3 . deterioration of the family structure ; Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 12 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 4. handicap the raising of children in a clean lifestyle ; 2 5 . detrimental effects on family oriented neighborhoods ; 3 6 . degeneration of the City ' s youth ; 4 7 . result in increased traffic within the neighborhood ; 5 8 . decrease property values ; 6 9 . contribute to a type of sexual arousement that places children as well as adults in danger of sexual assaults ; 7 10. serious detriment to the health and welfare of the areas 8 in which they operate ; and 9 11 . other business establishments to suffer . 10 The City cannot cite any study or report it commissioned in 11 reaching its conclusion , nor can it quarrel with the lack of any 12 factual basis to support the legislative findings . Renton asks 13 this court to accept as a factual basis justifying the broad loca- 14 tional provisions of the ordinance , ones literally pulled out of 15 thin air . The prohibition of all adult theatres outside the 16 central business district cannot be justified by reference to the 17 City' s interest in preventing blight and deterioration . The 18 ordinance ' s provisions make no reference to the City' s interest in 19 preventing blight and deterioration . The ordinance also makes no 20 reference to a concentration of adult uses . By its terms , it 21 applies to the operation of a single adult theatre anywhere in 22 Renton. 23 No evidence was submitted to the City Council in support of 24 a compelling governmental interest that would justify the loca- 25 tional requirements of Ordinance No . 3526 . We are left then , to 26 surmise why the facts and circumstances are so unusual and of such 27 a nature that the mere change of the image on the screen at two 28 theatres which have existed for so many years in the City of Renton 29 would necessarily and inevitably lead to decay, deterioration and 30 blight . The City can point to no indirect or secondary effect 31 Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 13 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 attributable to a theatre exhibition so-called "adult" films but 2 not attributable to a theatre showing other types of films . Nor 3 can the City point to anything inherent in the nature of "adult 4 motion picture films" which would inexorably lead to blight and 5 decay. 6 In Shad v. Burrough of Mount Ephraim , supra , Justice White 7 wrote for the Court , distinguishing between the standard of review 8 where zoning ordinances affect property interests and the standard 9 of review where zoning ordinances affect a protected liberty. As 10 to the latter : 11 * * * When a zoning ordinance infringes upon a protected liberty, it must be narrowly 12 drawn and must further a sufficiently sub- stantial governmental interest. . . . [T]he 13 court must not only assess the substantiality of the governmental interests asserted but 14 also determine whether those interests could be served by means that would be less intru- 15 sive on activity protected by the First Amend- ment. Shad v. Burrough of Mount Ephraim, 16 supra , at 2182-2184. 17 In a case decided December 11 , 1981 , the Eighth Circuit , 18 sitting en bane , found unconstitutional a zoning ordinance which 19 prohibited adult theatres within 100 yards of specified structures 20 and areas of the city. Avalon Cinema Corp . v. Thompson , F. 2d 21 (8th Cir . 1981 ) . The Court found that the city had not met its 22 burden of showing the necessity of the ordinance to achieve a com- 23 pelling governmental interest . Some empirical basis is required 24 for a finding that a single theatre within a specified distance of 25 a specific area of the city will have a deleterious effect upon the 26 surrounding neighborhood . 27 In sum and substance , the purpose of this ordinance is an 28 illegitimate purpose . Even if the purpose were legitimate , the 23 failure of the City to demonstrate an adequate factual basis for its conclusion that the removal of such uses to obscure locations 31 Memo. in Support of Mo. ATTORNEYS ATLAW for Preliminary Injunction Hubbard, Burns & Meyer Page 14 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 will minify the evils at which it is aimed is constitutionally 2 fatal. 3 [ T]he case would present a different situ- ation had Detroit brought within the ordi- 4 nance types of theatres that had not been shown to contribute to the deterioration 5 of surrounding areas . Young v. American Mini Theatres , Inc . , supra at 71 (plural- 6 ity opinion) by implication, id. at 82 (Powell J. , concurring) . 7 Young requires , under a standard that approximates strict scrutiny, 8 an underlying factual basis to support the conclusion of the legis- 9 lative body that the ordinance , narrowly drawn , furthers a substan- 10 • tial governmental interest which a narrower restriction will not . 11 Even if this is so , the courts still inquire into whether the 12 resulting burden on First Amendment interests is too severe . Young 13 requires actual governmental interests , actually considered upon a 14 15 factual basis at the time the action is taken . CLR Corporation v. 16 Lowell Henline , et al . , 520 F. Supp . 760 (W. D. Mich. 1981 ) . The 17 greater the impact on free expression, the more substantial the 18 factual connection between the regulation and its objective must 19 be . Broadrick v. Oklahoma , 413 U.S . 601 , 614-16 (1973) . In the instant case , the City of Renton asserts no govern- 20 21 mental interest other than regulating and limiting the location of 22 adult theatres . This is an impermissible governmental interest to 23 justify a restriction upon First Amendment expression . 24 THE CITY OF RENTON ORDINANCE NO. 3526 IS VOID AS A VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE 25 FOURTEENTH AMENDMENT AS INTERPRETED BY THE PLURALITY OPINION OF THE U.S. SUPREME COURT IN: 26 Young v. American Mini Theatres , 427 U.S. 50 , BECAUSE OF THE FAILURE OF THE DEFENDANTS TO ASSERT 27 ANY VALID GOVERNMENTAL INTEREST TO JUSTIFY THE REMOVAL OF EXISTING FREE PRESS FACILITIES TO OBSCURE GEOGRAPHIC 28 LOCATIONS WITHIN THE CITY. 29 The setting of a commercial theatre is "presumptively under 30 the protection of the First Amendment ." Roaden v. Kentucky, 413 31 U . S . 496 , 504 (1973) . In Vance v. Universal Amusement Co . , 445 ATTORNEYS AT LAW Memo, in Support of Mo. for Preliminary Injunction Hubbard, Buds & Meyer Page 15 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place, Suite 105 Kirkland,Washington 98033 (206)828-3636 A - 1 U. S. 308 , 100 S.Ct . 1156 , the Court again recognized the special 2 status of a motion picture theatre , stating that : 3 The regulation of a communicative activity such as the exhibition of motion pictures 4 must adhere to more narrowly drawn proce- dures than is necessary for the abatement 5 of an ordinary nuisance. Vance v. Universal Amusement Co . , supra at 1160. 6 The freedom to operate a theatre is unquestionably protected by the 7 First Amendment because preservation of freedom of expression 8 requires protection of the means of disseminating expression . 9 Lovell v. City of Griffin , 303 U. S . 444; see Bantam Books , Inc . v. 10 Sullivan , 372 U. S. 58 , 64-65 , n.6 ; see also Times Film Corp. v. 11 City of Chicago , 365 U. S. 43 , 56 , n. 3 (Chief Justice Warren 12 dissenting) . 13 However , since the Supreme Court ' s decision in Young v. 14 American Mini Theatres , Inc . , supra , municipalities have singled 15 out adult book stores and theatres for special regulatory treat- 16 ment . In Young , the Court upheld a Detroit zoning ordinance which 17 18 dispersed adult theatres by prohibiting their opening near each 19 other and other specified uses . The ordinance did not affect existing non-conforming uses . Justice Stevens ' plurality opinion 20 21 asserted that the ordinance was not directed at restricting speech 22 merely because the city thought it offensive , but also found the 23 burden on First Amendment rights slight . Webster ' s New Collegiate Dictionary defines "slight" as "trivial" or "unimportant" .24 25 Only in that context did the plurality find the ordinance 26 constitutional . Crucial to the Supreme Court ' s decision in Young 27 was its determination that Detroit ' s adult zoning ordinance had a 28 minimal impact on First Amendment interests . Justice Stevens 29 suggested that pornography zoning is constitutional only so long as 30 the "market for this commodity is essentially unrestrained , " 427 31 U. S. at 62. In discussing the restrictive impact of Detroit ' s Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns & Meyer Page 16 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 ordinance , the plurality focused not on the interest of individual 2 proprietors , but on the interests of distributors and consumers of 3 adult materials . A majority seemed to agree that adult zoning 4 would be unconstitutional if the total number of outlets and the 5 number of potential customers who conveniently patronize them did 6 not remain approximately the same. The Court focused on the over- 7 all quality of communication . As Justice Stevens observed in Marks 8 v. United States , 430 U. S . 188 , 51 L. Ed . 2d 260 , 97 S.Ct . 990 : 9 However distasteful these materials are to some of us , they are nevertheless a form of 10 communication and entertainment acceptable to a substantial segment of society ; other- 11 wise , they would have no value in the mar- ketplace. Marks v. United States, supra at 12 page 269 . 13 The majority , in fact , qualified its holding that the 14 Detroit ordinance did not violate the Equal Protection clause by 15 stating that what was ultimately at issue was "nothing more than a 16 limitation on the place where adult films may be exhibited , 35. 17 . . . " 430 U.S. at 71 . The Court' s footnote 35 began : 18 The situation would be quite different if 19 the ordinance had the effect of suppres- sing or greatly restricting access to , lawful speech. Here , however, the dis- trict court specifically found that " [t]he 21 Ordinances do not affect the operation of existing regulated establishments . This 22 burden on First Amendment rights is slight . Marks v. United States , supra at 71 , n. 35. 23 Since Young , a number of courts have dealt with the concept 24 of a restrained marketplace for adult materials . In E & B Enter- 25 prises v. City of University Park, 449 F. Supp . 695 (N. D. Tex. 26 1977) , an adult zoning ordinance which lacked a grandfather clause 27 was struck down since there were only two areas of the city in 28 which the prohibited type films could be shown , one owned by the 29 city and the other already occupied commercially. In Bayside 30 Enterprises , Inc . v. Carson , 450 F. Supp . 696 (M. D. Fla. 1978) , the 31 ATTORNEYS AT LAW Memo. in Support of Mo. for Preliminary Injunction Hubbard, Burns &Meyer Page 17 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 district court invalidated a zoning ordinance which had a grand- 2 father clause but which strenthened the 1 , 000 foot restriction from 3 two other regulated uses (as in the Detroit ordinance) to a 2 , 500 4 foot distance requirement from any church , school , or other adult 5 business . The court there concluded that : 6 The zoning plan as it now stands would effect , for all practical purposes , a 7 total ban on the establishment of new adult bookstores or movie houses. . . . 8 Bayside Enterprises , Inc . v. Carson , supra at 702. 9 Since the ordinance would effectively bar future access to the 10 adult entertainment market , it could not be sustained . In Purple 11 Onion , Inc . v. Maynard Jackson , 511 F. Supp . 1207 (1981 ) , Judge 12 Marvin H. Schoob found an Atlanta ordinance which required reloca- 13 tion to certain zones and dispersal within those zones to be uncon- 14 stitutional . The court specifically found a four-year amortization 15 provision unconstitutional because confining adult businesses to 16 17 certain business districts of the city would significantly reduce 18 public access to sexually oriented material and entertainment in 19 Atlanta . In conclusion , the court said : The effect of the ordinance challenged here 20 on adult entertainment establishments in 21 Atlanta is to squeeze them out of their present , desirable locations and to force 22 them into spaces where they won ' t fit , or which are otherwise unsuitable for such 23 businesses . Public access to live , sexually oriented entertainment under the ordinance 24 will be reduced dramatically or eliminated altogether. While this court is not pre- 25 pared to formulate a standard which answers the question left open in American Mini 26 Theatres , this court does conclude that the ordinance restricts public access to pre- 27 sumptively-protected entertainment far too much. The ordinance 's amortization provi- 28 sions , combined with its zoning area pro- visions , are void for greatly restricting 29 public access to speech protected by the First Amendment . Purple Onion , Inc . v. 30 Maynard Jackson , supra at 1224. 31 Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns &Meyer Page 18 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 In the action before the Court , the effect of Renton ' s 2 zoning ordinance on public access to sexually-oriented material is 3 not incidental but is both real and substantial . The effect of the 4 ordinance is to require any adult theatre within the City of Renton 5 to locate in an obscure manufacturing district if available prop- 6 erty can be found . There are no available sites that a reasonably 7 prudent investor owning an adult-type business would consider as a 8 possible site to establish such a business . The available loca- 9 tions are wholly unsuited for retail or commercial use . The avail- 10 able locations , if any, are so unusable or inaccessible to the 11 public , that for all practical purposes they amount to no location . 12 Purple Onion , Inc . v. Maynard Jackson , supra at 1216. 13 CONCLUSION 14 For the reasons set forth herein , it is respectfully 15 requested that this Honorable Court enter a preliminary injunction 16 restraining the defendants from enforcing against the plaintiffs , 17 the provisions of Ordinance No . 3526 , pending a determination on 18 the merits of plaintiffs ' claims . 19 DATED this 2s F'`day of , 1982. 20 ( R spectfully submitted , 21 HUBBARD, BURNS & MEYER 22 By 112 , 61,\A'‘.., 23 Jgc R. Burns Atto ney for Plaintiffs 24 25 26 27 28 29 30 31 Memo. in Support of Mo. ATTORNEYS AT LAW for Preliminary Injunction Hubbard, Burns &Meyer Page 19 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 RECEIVED 2 '- l 0 3 0 A.M: 3 • JAN 221982 CITY OF RENTON 4 MAYOR'S •FFI E 5 6 7,0 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , a ) Washington corporation , and KUKIO ) 11 BAY PROPERTIES, INC. , a Washington) 82 corporation , ) NO. (1 F�°' `*°` 9 34 12 Plaintiffs , ) SUMMONS 13 vs . ) ) 14 THE CITY OF RENTON, ) ) 15 and ) 16 THE HONORABLE BARBARA Y. SHINPOCH , ) as Mayor of the City of Renton , ) 17 and ) 18 ) EARL CLYMER, ROBERT HUGHES, NANCY ) 19 MATHEWS , JOHN REED, RANDY ROCKHILL) RICHARD STREDICKE AND TOM TRIMM, ) 20 as members of the City Council of ) the City of Renton ; serve on : ) 21 DELORES H. MEAD, City Clerk, ) • 22 ) and ) 23 ) JIM BOURASA, as acting Chief of ) 24 Police of the City of Renton , ) ) 25 ) Defendants , jointly and ) 26 severally, in their ) representative capacities ) 27 only. ) ) 28 TO THE ABOVE NAMED DEFENDANTS : 29 YOU ARE HEREBY SUMMONED and required to serve upon Hubbard , 30 Burns & Meyer , plaintiffs ' attorneys , whose adderss is 10604 N. E. 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer Summons A PROFESSIONAL SERVICE CORPORATION Page 1 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 38th Place , Suite 105 , Kirkland , Washington 98033 , an answer to the 2 Complaint which is herewith served upon you, within twenty (20) 3 days after service of this Summons upon you, exclusive of the day 4 of service . If you fail to do so , judgment by default will be 5 taken against you and for the relief demanded in the Complaint . 6 7 BFbUCE UTXN Clerk of the Court 8 9 Deputy Clerk 671 10 DATE : - �� [Seal of Court] 11 12 NOTE : This Summons is issued pursuant to Rule 4 of the Federal Rules of Civil Procedures . 13 14 15 16 17 18 19 20 21 • 22 23 24 25 26 27 28 29 30 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer Summons A PROFESSIONAL SERVICE CORPORATION Page 2 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 2 --LODGED 3 F;ECtJ'!ED JAN 420; , ' C,i. r i� U.S. Dio1ryTnl-': ;i;:- "``Jt T 5 VLSTERN DISTRICT OF WASHINGTONDPUTY B'! 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , a ) Washington corporation , and KUKIO ) ` BAY PROPERTIES, INC. , a Washington) a PA 5 9 corporation , ) NO. 12 ) Plaintiffs , ) COMPLAINT FOR DECLARATORY 13 vs . ) JUDGMENT AND PRELIMINARY ) INJUNCTION 14 THE CITY OF RENTON, ) ) 15 and ) 16 THE HONORABLE BARBARA Y. SHINPOCH , ) as Mayor of the City of Renton , ) 17 ) and ) 18 ) EARL CLYMER, ROBERT HUGHES, NANCY ) 19 MATHEWS , JOHN REED, RANDY ROCKHILL) RICHARD STREDICKE AND TOM TRIMM, ) 20 as members of the City Council of ) the City of Renton ; serve on : ) 21 DELORES H. MEAD, City Clerk, ) ) • 22 ) and ) 23 ) JIM BOURASA, as acting Chief of ) 24 Police of the City of Renton , ) ) 25 ) Defendants , jointly and ) 26 severally , in their ) representative capacities ) 27 only. ) ) 28 COME NOW Playtime Theatres Inc . and Kukio Bay Properties 29 Inc . , bodies corporate of the State of Washington , by and through 30 their attorneys , Jack R. Burns and Robert Eugene Smith , of counsel , 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place, Suite 105 Page Kirkland,Washington 98033 (206)828-3616 1 and seek a declaratory judgment as well as a preliminary and 2 permanent injunction with respect to City of Renton Ordinance No . 3 3526 entitled : "An Ordinance Of The City Of Renton , Washington , 4 Relating To Land Use and Zoning ; " enacted and approved by the Mayor 5 and City Council on or about the 13th day of April , 1981 and in 6 support of their cause of action , state : 7 I . JURISDICTION 8 1 . This is a civil action whereby plaintiffs pray for a 9 preliminary and permanent injunction enjoining the defendants from 10 enforcement of the City of Renton Ordinance No . 3526 , a copy of 11 which is attached hereto as Exhibit "A" in support of this 12 complaint , the contents of which are incorporated herein by 13 reference , on the grounds that said ordinance and the multiple 14 provisions thereof are unconstitutional as written , and/or as 15 threatened to be applied to the plaintiffs in the case at bar . 16 Further , plaintiffs pray for a declaratory judgment to determine 17 the constitutionality of said Ordinance , as written and/or as 18 threatened to be applied to the plaintiffs . The allegations to be 19 set forth in the premises establish that there are presented 20 questions of actual controversy between the parties involving 21 substantial constitutional issues in that said ordinance , as 22 written and/or in its threatened application , is repugnant to the 23 rights of the plaintiffs herein under the First , Fourth , Fifth , 24 Sixth , and Fourteenth Amendments to the Constitution of the United 25 States . 26 2. Jurisdiction is conferred on this court for the resolu- 27 tion of the substantial constitutional questions presented by the 28 provisions of 28 USCA § 1131 (a) which provides in pertinent part : 29 (a) The district court shall have original 30 jurisdiction of all civil actions wherein the matter in controversy exceeds the sum 31 or value of $10 , 000 . 00 , exclusive of interest ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . - 10604 N.E. 38th Place,Suite 105 Page 2 Kirkland,Washington 98033 (206)828-3636 1 and costs , and arises under the Constitution laws or treaties of the United States . 2 as well as 28 USCA § 1343(3) which provides in pertinent part that 3 the district courts shall have original jurisdiction of any civil 4 action authorized by law to be commenced by any person : 5 To redress the deprivation , under color of any 6 any state law, statute , ordinance , regulation , custom or usage , of any right , privilege or 7 immunity secured by the Constitution of the United States . . . " 8 and the organic law which further authorizes the institution of 9 this suit founded on 42 USCA § 1983 , which provides in pertinent 10 part as follows : 11 Every person who , under color of any statute , 12 ordinance , custom or usage , of any state or territory subjects , or causes to be subjected , 13 any person of the United States or other per- son within the jurisdiction thereof to the 14 deprivation of any rights , privileges or immunities secured by the Constitution and 15 the laws , shall be liable to the party in- jured in an action at law, sued in equity , 16 or other proper proceeding for redress . 17 Plaintiffs ' prayer for declaratory relief is founded on Rule 18 57 of the Federal Rules of Civil Procedure , as well as 28 USCA 19 § 2201 , which provides in pertinent part : 20 . Any court of the United States , upon the 21 filing of an appropriate pleading , may declare the rights and other legal relations of any 22 interesed party seeking such declaration , whether or not further relief is or could be 23 sought . . . 24 The jurisdiction of this court to grant injunctive relief is 25 conferred by 28 USCA §2202 , which provides : 26 Further necessary or proper relief based upon a declaratory judgment or decree may be granted 27 after reasonable notice and hearing against any adverse party whose rights have been determined 28 by such judgment . II . PARTIES 29 30 3 . Playtime Theatres , Inc . , a corporate body of the State 31 of Washington plans to operate pursuant to a written lease agree- ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place, Suite 105 Page 3 Kirkland,Washington 98033 (206)1128-36:16 1 ment , a motion picture theatre which is located at 504 South 3rd 2 Street , within the city limits of Renton , State of Washington . The 3 enterprise will be operated under the name of the Roxy Theatre . 4 Playtime Theatres , Inc . will also operate pursuant to a written 5 lease agreement , the Renton Theatre at 507 South 3rd Street , within 6 the city limits of Renton , State of Washington . 7 Kukio Bay Properties , Inc . , a body corporate of the State of 8 Washington has contracted to purchase the motion picture theatres 9 described in the preceeding paragraph and plans to lease said 10 theatres to Playtime Theatres , Inc . 11 That on or about November 25 , 1981 , Kukio Bay Properties , 12 Inc . entered into a real estate purchase agreement for the purchase 13 of said theatres for the sum of $800 , 000. 00. That the date of 14 closing of said agreement is to be January 26 , 1982 and immediately 15 thereafter , Kukio BayProperties , Inc . P plans to take possession of 16 said theatres . That on or about the 27th day of January, 1982 , by 17 a written agreement , Kukio BayProperties , Inc .g � P plans to lease said 18 theatre premises to Playtime Theatres , Inc . for a period of ten 19 years commencing on January 27 , 1982. In addition , Playtime 20 Theatres , Inc . will have the option to renew said leases for an 21 additional term of ten years terminating on January 26 , 2002. The 22 lease agreements to be entered into by the parties will provide 23 that the premises by used for the purpose of conducting therein 24 adult motion picture theatres . Playtime Theatres , Inc . will take 25 possession of said theatres on or about January 27 , 1982 and on 26 January 29 , 1982 plans to begin exhibiting feature length motion 27 picture films for adult audiences . 28 From on or about January 29 , 1982 , under the operation and 29 management of Playtime Theatres , Inc . , said theatres will 30 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . ` 10604 N.E. 38th Place,Suite 10S Page 4 Kirkland,Washington 98033 (206)828-3636 • 1 continuously operate exhibiting adult motion picture film fare to 2 an adult public audience . 3 4. The defendant , City of Renton , is a municipal corpora- 4 tion of the State of Washington . 5 5 . The Honorable Barbara Y. Shinpoch is named defendant 6 herein in her capacity as Mayor of the City of Renton , having the 7 titular title . In that capacity, she is the head of City govern- 8 ment and approved the questioned ordinance in the case at bar . 9 6 . Earl Clymer , Robert Hughes , Nancy Mathews , John Reed , 10 Randy Rockhill , Richard Stredicke and Tom Trimm are named as 11 defendants herein as members of the City Council of the City of 12 Renton who enacted the wholly unconstitutional ordinance as a part 13 of their alleged legislative function . 14 8 . Jim Bourasa is named a defendant herein in his capacity 15 as Acting Chief of Police of the City of Renton who is primarily 16 responsible for seeing to the enforcement of the City of Renton 17 ordinances , civil , criminal and quasi-criminal in nature . 18 9 . The defendants in their official capacities as aforesaid 19 have acted and/or threaten to act to plaintiffs ' immediate and 20 irreparable harm under color of authority of the Ordinance No . 3526 21 heretofore identified as Exhibit "A" . 22 The named defendants , in their official capacity as afore- 23 mentioned , are joined herein to make enforceable to them and/or 24 their agents , servants , employees and attorneys , any Preliminary 25 and/or Permanent Injunction , Declaratory Judgment , and/or other 26 Order of this Court . 27 III . FACTUAL ALLEGATIONS 28 10 . The instant ordinance was passed with the sole purpose 29 to prevent the opening of any adult motion picture theatre within 30 the city limits of Renton and to effectively censor the kinds of 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . = 10604 N.E. 38th Place, Suite 105 Page 5 Kirkland,Washington 98033 (206)828-3636 1 protected First Amendment press materials available to adult 2 citizens of the City of Renton and adult visitors to the City . 3 11 . That no criminal , quasi-criminal and/or civil preceed- 4 ing is pending in the city courts of the City of Renton or in the 5 state courts in the State of Washington against the plaintiffs 6 and/or their agents , servants and employees as of the date of the 7 filing of this suit with respect to this matter . 8 12 . That on the 19th day of January, 1982 , Mike Parness , 9 Administrative Assistant to the Mayor of the City of Renton has , as 10 aforesaid , advised that if the property to be acquired by the 11 plaintiffs is used to exhibit adult motion picture films , then 12 enforcement proceedings will be commenced forthwith . 13 13 . That the City of Renton Ordinance No . 3526 was enacted 14 by the City Council and approved by the Mayor as a part of a syste- 15 matic scheme , plan and design , under color of enforcement of the 16 said ordinance to deny distributors and/or exhbitors of adult films 17 access to the marketplace , and to deny to the intersted adult 18 public , access to such erotic materials which are not otherwise 19 obscene under the test set forth in Miller v. California , 413 U.S. 20 15 ( 1973) . See Young v. American Mini Theatres , 427 U. S . 50 21 ( 1975) at pages 62 and 71 . 22 14. That requiring the plaintiffs to conform to this wholly 23 unconstitutional zoning ordinance by not using the locations they 24 have contracted to purchase , and requiring them to move their 25 business to a selectively obscure geographical location , violates 26 the plaintiffs ' rights under the First , Fifth , Sixth and Fourteenth 27 Amendments to the Constitution of the United States . Indeed , by 28 this selective ordinance , which would shutter motion picture 29 theatres such as the Roxy Theatre and Renton Theatre , which show as 30 part of their fare , erotic films , the City of Renton by its agents , 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place, Suite 105 Page 6 Kirkland,Washington 98033 (206)828-3636 1 servants and employees will be denying the plaintiffs and other 2 persons lawfully engaged in the exhibition of adult film fare 3 presumptively protected by the First Amendment to the Constitution 4 of the United States , [Heller v. People of the State of New York, 5 413 U. S . 483 (1973) ; and Roaden v. Commonwealth of Kentucky, 413 6 U . S . 496 (1973) ] , access to the marketplace as well as the right of 7 the interested adult public to have access to adult film fare , and 8 will deny the plaintiffs the right to engage in said business in 9 the City of Renton ; and unless restrained , the City , under color of 10 enforcement of its zoning laws , will cause said businesses to cease 11 and close up ; and unless restrained , defendants will continue to 12 seek to enforce said ordinance and this will have the effect of 13 totally depriving your plaintiffs , as well as others similarly 14 situate , from their normal business activities . This will have a 15 chilling effect on the dissemination and exhibition of adult film 16 fare to those interested adults who seek to satiate their educa- 17 tional , entertainment , literary, scientific and artistic interests 18 in such press materials . The ordinance places an intolerable 19 burden upon the exercise of First Amendment rights , arbitrarily and 20 capriciously descriminates as to the nature of film fare exhibited 21 based upon an assumption which is not rationally related to a valid 22 public purpose nor necessary to achieve a compelling state interest 23 in violation of the Equal Protection Clause of the Fourteenth 24 Amendment of the Constitution of the United States , establishes 25 classifications which are arbitrary and capricious and constitutes 26 an abuse of legislative discretion and is not rationally related 27 and also deprives plaintiffs of their equal rights under the 28 Fourteenth Amendment of the Constitution of the United States ; and 29 further by its use has language that is intrinsically vague and 30 void under the First and Fifth Amendments to the Constitution of 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . ` 10604 N.E. 38th Place,Suite 105 Page 7 Kirkland,Washington 98033 12061 1128-3636 1 the United States and void for impermissible overbreadth by the use 2 of means which are too broad for the alleged evil intended to be 3 curtailed . That the enactment of the City of Renton Ordinance No . 4 3526 was done without the constitutionally required legislative 5 fact finding required to meet the burden imposed upon those who 6 seek to curtail activitywhich might otherwise be g protected within 7 the pneumbra of the First Amendment of the Constitution of the 8 United States . The defendants , by their agents , servants and 9 employees , and/or their attorneys , by enacting such a wholly 10 unconstitutional ordinance , and now threatening to enforce the 11 same , have created a pervasive atmosphere of official repression 12 constituting a "chilling effect" upon the exercise of First 13 Amendment rights of plaintiffs and others who may wish to engage in 14 the lawful business of exhibiting adult film fare protected by the 15 First Amendment to the Constitution of the United States , as well 16 as the interested adult public who desire to see and view such 17 adult film fare , and this has imposed and threatens to impose a 18 wholly unconstitutional prior restraint condemned by the First , 19 Fourth , Fifth , and Fourteenth Amendments to the Constitution of the 20 United States , and this is merely a design and scheme on the part 21 of the defendants to force the plaintiffs and others similarly 22 situate out of business , under color and pretense of claimed 23 enforcement of the ordinance attached hereto as Exhibit "A" , well 24 knowing the patent unconstitutionality of the same . 25 IV. BASIS IN LAW FOR RELIEF 26 15 . Plaintiffs have the right to engage in the business of 27 offering for exhibition adult motion picture film fare for profit 28 by virtue of the First Amendment to the Constitution or adult film 29 fare which is presumptively protected under said constitutional 30 amendment , and the public , including both adult citizens and 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . ` 10604 N.E. 38th Place,Suite 105 Page 8 Kirkland,Washington 98033 (206)828-3636 1 visitors to the City of Renton have the same constitutional right 2 to view said adult motion picture film fare as may be offered for 3 said exhibition to said adults in a nonintrusive manner . Heller v. 4 New York, 413 U. S . 483 , 37 L.Ed . 2d 745 , 93 Sup .Ct . 2789 (1973) . 5 Further , the conduct of the defendants and their agents , servants , 6 employees and/or attorneys and others , acting under their direction 7 and control in attempting to refuse to allow plaintiffs to operate 8 their businesses in the City of Renton , unless they remove 9 themselves to some obtuse selectively obscure geographical site , 10 will have the draconian effect of denying plaintiffs and others 11 similarly situate , access to the marketplace , and the viewing adult 12 public the right to satisfy its interest for adult film fare . 13 16 . As a further result of the unconstitutional ordinance 14 enacted by the City Council and approved by the Mayor , as well as 15 the threatened conduct of the defendants to force plaintiffs to 16 not engage in their businesses , plaintiffs have been required to 17 retain attorneys to pursue their rights under the First , Fourth , 18 Fifth , and Fourteenth Amendments to the Constitution of the United 19 States , and the defendants , acting under color of pretense of law, 20 as aforesaid , have threatened to initiate actions to enforce the 21 said ordinance , which actions are and/or threaten to be , repugnant 22 to the Constitution of the United States . 23 17 . The City of Renton zoning ordinance designated herein 24 as Ordinance No. 3526 , is clearly repugnant to the First , Fourth , 25 Fifth and Fourteenth Amendments to the Constitution of the United 26 States as written and as threatened to be applied , for the follow- 27 ing reasons : 28 (a) Said ordinance is void for vagueness in that it 29 fails to establish by its terms , definitive standards , 30 criteria and/or other controlling guides defining 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place,Suite 105 Page 9 Kirkland,Washington 98033 (206)828-3636 1 words , inter alia "other religious facility or institu- 2 tion" in Section II (A) (4) or "distinguished or charac- 3 terized by an emphasis on matter depicting , describing 4 or relating to "specified sexual activities" as used in 5 Section I( 1 ) of said ordinance , as well as the words 6 "erotic touching" as used in Section 12 C g ( ) ( ) ; and as 7 such is a deprivation under color of state law of 8 plaintiffs ' right to due g process under the First , Fifth 9 and Fourteenth Amendments to the Constitution of the 10 United States . 11 (b) Said ordinance is void for impermissible over- 12 breadth by means which sweep unnecessarily broadly and 13 thereby invade the area of protected freedoms in that 14 the same sets forth standards at variance with those 15 minimum standards prescribed by the Supreme Court of 16 the United States , in connection with the exercise of 17 First Amendment rights , and in particular , those 18 provisions which set forth the "specified anatomical 19 areas" and "specified sexual activities" in Section 20 I (2) and Section I (3) . 21 (c) Said ordinance is further void for impermissible 22 overbreadth and deprives plaintiffs of due process and 23 equal protection of the law through the arbitrary and 24 uncontrolled power conferred by the enactment of said 25 ordinance to the defendants ' enforcement of zoning laws 26 for the exercise of otherwise clear First Amendment 27 rights and therefore the same is invalid under the 28 First and Fifth Amendments to the Constitution of the 29 United States made obligatory on the States under the 30 due process provisions of the Fourteenth Amendment . 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 Page 10 (206)828-3636 1 (d) Said ordinance , lacking precision and narrow 2 specificity in the standards to be employed by defen- 3 dants in the operation of their legislative power to 4 enact zoning laws , constitutes a prior restraint under 5 color of state law on the exercise of plaintiffs of 6 their rights under the First , Fifth and Fourteenth 7 Amendments to the Constitution of the United States and 8 as written , which is and has been , under the facts 9 alleged herein , susceptible to arbitrary ,p capricious 10 and uncontrolled discretion on the part of defendants 11 herein , their agents , servants and employees . 12 (e) Said ordinance is void in that it fails , by its 13 terms , to establish procedural safeguards to assure a 14 prompt decision on the challenge to the arbitrary 15 zoning classification , and if a zoning challenge is 16 denied , the ordinance fails by its terms to provide for 17 a prompt final judicial review to minimize the deter- 18 rent effect of an interim and possibly erroneous zoning 19 classification under procedures which places the burden 20 on plaintiffs to both expeditiously institute judicial 21 review and to persuade the courts that the activity 22 sought to be licensed and the procedure and ordinance 23 employed to authorize the same , is without the ambit of 24 the First Amendment , and the abatement of the noncon- 25 forming use is not a proper exercise of authority. 26 (f) Said ordinance is further void in that the same , 27 by its terms , places an impermissible burden upon the 28 exercise of plaintiffs ' First Amendment rights . 29 (g) Said ordinance is further void as violative of the 30 Equal Protection Clause of the Fourteenth Amendment , in 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E.38th Place,Suite 105 Page 11 Kirkland,Washington 98033 (206)828-3636 1 that the same creates a statutory classification which 2 has no rational relationship to a valid public purpose 3 nor is the same necessary to the achievement of a com- 4 pelling state interest by the least drastic means . 5 (h) Said ordinance is repugnant to the substantive due 6 process provisions of the Fifth and Fourteenth 7 Amendments to the Constitution of the United States 8 because the same permits deprivation of liberty and/or 9 property interests for the exercise of First Amendment 10 rights by unreasonable , arbitrary and capricious means 11 without a showing of a real and substantial relation- 12 ship to any state or city subordinating interest which 13 is compelling to justify state or city action limiting 14 the exercise by plaintiffs of their First Amendment 15 freedoms . 16 ( i) Said ordinance is impermissibly overbroad and 17 repugnant to the procedural due process requirements of 18 the Fifth and Fourteenth Amendments to the Constitution 19 of the United States , in that the same employs means 20 lacking adequate safeguards , which due process demands , 21 to assure presumptively protected press materials , 22 sought to be distributed to an interested adult public , 23 the constitutional protection of the First Amendment . 24 (j ) Said ordinance is vague and impermissibly over- 25 broad and thus repugnant to the First , Fourth , Fifth 26 and Fourteenth Amendments to the United States Consti- 27 tution , in that said ordinance , by its provisions , 28 permits inherent powers of censorship and suppression 29 constituting a prior restraint on the exercise of 30 plaintiffs ' First Amendment rights as well as the 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer Complaint . . . A PROFESSIONAL SERVICE CORPORATION Page 2 - 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 1 interested adult public who may desire to view presump- 2 tively protected press materials for the ideas pre- 3 sented therein . 4 (k) Said ordinance , and particularly Section I(2) , in 5 defining "specified sexual activities" defines that 6 phrase in part as "erotic touching" and is thus void 7 for vagueness in that "erotic" is a word that can mean 8 many things to many people and without further clarifi- 9 cation confers on defendants unbridled discretion in 10 the interpretation of that term and as such , is viola- . 11 tive of the plaintiffs ' rights under the First , Fifth 12 and Fourteenth Amendments to the Constitution of the 13 United States . 14 ( 1) Said ordinance and particularly Section II (A) as 15 it purports to establish restrictions , requirements and 16 conditions for an alleged adult theatre imposes bur- 17 dens , restrictions and conditions that are not justi- 18 fied by any compelling state interest and as such , the 19 classification is an invidious and arbitrary discrimi- 20 nation as to a class and as such , is a denial of 21 plaintiffs ' rights under the Fourteenth Amendment to 22 the Constitution of the United States , particularly 23 where , as here , protected First Amendment activity is 24 involved . 25 (m) The plaintiffs will suffer immediate and substan- 26 tial economic harm if said ordinance is applied to them 27 and the result of the application of said ordinance to 28 the activities of the plaintiffs will result in a for- 29 feiture of substantial business interests and assets . 30 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E.38th Place,Suite 105 Page 13 Kirkland,Washington 98033 (206)828.3636 1 18. Plaintiffs herein aver that their rights afforded under 2 the First , Fourth , Fifth , Sixth and Fourteenth Amendments to the 3 Constitution of the United States have been violated by said 4 defendants in the enactment of a wholly unconstitutional ordinance , 5 and that unless this Court grants the relief prayed for , said 6 plaintiffs and others similarly situate , as well as the interested 7 adult public , will suffer irreparable harms . 8 19 . Plaintiffs aver that the aforesaid action of the 9 defendants in enacting said ordinance , and the threatened enforce- 10 ment thereof by said defendants acting under color of state law, is 11 in furtherance of a scheme , plan and design to prevent any business 12 activity which may offer for sale or exhibition adult press 13 materials in the City of Renton to the adult public . 14 V. RELIEF SOUGHT 15 20. Plaintiffs are entitled to and desire that this Court 16 enter a declaratory judgment , declaring Ordinance No . 3526 to be 17 unconstitutional as written and/or as defendants purport to apply 18 it , in whole or in part , to be repugnant to the First , Fourth , 19 Fifth , Sixth and/or Fourteenth Amendments to the Constitution of 20 the United States . 21 21 . Plaintiffs seek a preliminary and permanent injunction 22 to prohibit the enforcement by defendants , and/or their agents , 23 servants , employees , attorneys , and others acting under its direc- 24 tion and control of the provisions of Ordinance No . 3526. 25 WHEREFORE, plaintiffs pray : 26 1 . That defendants be required to answer forthwith this 27 Complaint in conformance with the rules and practices of this 28 Honorable Court . 29 2 . That a Declaratory Judgment be rendered declaring 30 Ordinance No . 3526 to be unconstitutional as written , in whole 31 ATTORNEYS AT LAW Hubbard, Burns &Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place,Suite 105 Page 14 Kirkland,Washington 98033 (206)828-3636 1 and/or in part , and that this Court further declare the ordinance 2 to be unconstitutional in its threatened application to the 3 plaintiffs . 4 3 . That a Preliminary Injunction issue from this Court upon 5 hearing , restraining defendants and their agents , servants , 6 employees , and attorneys , and others acting under their direction 7 and control , pending a hearing and determination on plaintiffs ' 8 application for a Permanent Injunction , from enforcing or executing 9 and/or threatening to enforce and/or execute the provisions of 10 Ordinance No. 3526 in whole and/or in part , by arresting plain- ` 11 tiffs , their agents , servants or employees , and/or threatening to 12 arrest plaintiffs , their agents , servants and employees and/or 13 harassing, threatening to close , or otherwise interferring with 14 plaintiffs ' peaceful use of the premises . 15 4 . That upon a final hearing , that this Court issue its 16 Permanent Injunction prohibiting the defendants and/or their 17 agents , servants and employees , and/or others in concert with them, 18 from enforcing Ordinance No . 3526 in whole or in part because of 19 its patent unconstitutionality. 20 5 . That upon a final hearing this Court award to the plain- 21 tiffs such damages as they shall have sustained by reason of loss 22 of business , the expenditure of assets to enforce and protect the 23 rights guaranteed to them under the Constitution of the United 24 States , their reasonable attorney' s fees and such other damages as 25 may be established at the time of trial . 26 6 . And for such other and further relief as may be 27 /// 28 29 /// 30 /// 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E.38th Place,Suite 105 Page 5 Kirkland,Washington 98033 (2061 828-3636 1 appropriate under the circumstances of this case . 2 DATED this day of January , 1982. 3 Respectfully submitted , 4 HUBBARD, BURNS & MEYER 5 BY Uzi It 1`•J)' 6 Jack, R. Burns Attorney for Plaintiffs 7 OF COUNSEL: 8 Robert Eugene Smith , Esq . 9 16133 Ventura Blvd. Penthouse Suite E 10 Encino, California 91436 (213) 981 -9421 11 12 STATE OF WASHINGTON ) 13 ) ss . COUNTY OF KING ) 14 COMES NOW Roger H. Forbes who , after being duly sworn , did 15 depose and say : 16 1 . That Playtime Theatres , Inc . and Kukio Bay Properties , 17 18 Inc . are bodies corporate of the State of Washington , in good 19 standing. 20 2. That affiant is the president of said corporations . 21 Affiant further states that he is authorized to speak on their 22 behalf. 23 3. That said corporations are the plaintiffs in the within 24 proceedings . 25 4. That he has read the complaint to which this affidavit 26 is affixed and asserts that the factual allegations contained 27 therein are true and correct to the best of his information , 28 knowledge and belief. 29 5 . That the enforcement of the City of Renton Ordinance No . 30 3526 will , if upheld , have the effect of depriving plaintiffs of 31 access to the marketplace to exhibit their presumptively protected First Amendment wares of adult film fare ; and further , will deny to ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . 10604 N.E. 38th Place,Suite 105 Page 16 Kirkland,Washington 98033 (206)828-3636 1 interested adults , the access to such material for their informa- 2 tion , education , entertainment , literary, scientific or artistic 3 interests , as well as subject plaintiffs , their agents , servants 4 and employees to criminal arrests and confiscatory fines and 5 forfeitures of property interests ; and would further destroy the 6 property and interest of said corporations in the location of their 7 theatres operated at 504 South 3rd Street , and 507 South 3rd 6 Street , in the City of Renton , and subject said plaintiff 9 corporations to grievous financial harm as well as to also chill 10 their rights of free speech as guaranteed by the First Amendment . 11 Dombrowski v. Pfister , 380 U. S. 479 (1965) . 12 13 // / Roger H. Forbes 14 SUBSCRIBED AND SWORN to before me this 2d day of January, 15 1982. 16 el)17 /14 tary Public in and for the 18 State of Washington residing at 19 20 21 22 23 24 25 26 27 28 29 30 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION Complaint . . . ° 10604 N.E.38th Place,Suite 105 Page 17 Kirkland,Washington 98033 (206)828-3636 MATE OF WASHINGTON' SS, COUNTY OF KING 1 1•i..l>r,LO.eLS...�r�.,..0.1&ap City Clerk in and for the City of Renton, 'Jr.shin'lon, do hereby certiy thaj.the foregoing Ordinance is a true and correct copy of Orrinance No.. .3: > of the City of Renton, as it appears on file n co, and do further certify that the same has been published according 'n Witness Whereof I have he eunto set ney had and affixed the seal of th i - :ity of Renton, this t .4 day oL ,City Clerk CITY OF RENTON , WASHINGTON ORDINANCE NO . 3526 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON , WASHINGTON , DO ORDAIN AS FOLLOWS: SECTION I : Existing Section 4- 702 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : 1 . "Adult Motion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or characteri by an emphasis on matter depicting , describing or relating to "specific, sexual activities" or "specified anatomical areas" as hereafter defined for observation by patrons therein . 2 . "Specified Sexual Activities" : (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation , sexual intercourse or sodomy ; . (c) Fondling or other erotic touching of human genitals pubic region , buttock or female breast . 3 . "Specified Anatomical Areas" (a) Less than completely and opaquely covered human genitals , pubic region , buttock, and female breast below a point immediately above the top of the areola ; and (b) Human male genitals in a discernible turgid state , even if completely and opaquely covered. -1- Exhibit f._A_,e SECTION II : There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any residential zone (SR- 1 , SR-2 , R-1 , S-1 , R-2 , R-3 , R-4 or T) or any single family or multiple family residential use . 2 . One (1) mile of any public or private school 3 . One thousand (1000 ' ) feet of any church or other religious facility or institution 4. One thousand (1000 ' ) feet of any public park or P-1 zone . B . The distances provided in this section shall be measured by following a straight line , without regard to intervening buildings , from the nearest point of the property parcel upon which the proposed use is to be located , to the nearest point of the parcel of property or the land use district boundary line from which the proposed land . use is to be separated. SECTION III : This Ordinance shall be effective upon its passage , approval and thirty days after its publication . PASSED BY THE CITY COUNCIL this 13th day of April , 1981 ' (L /1 4. (� Delores A . Mead , City Clerk APPROVED BY THE MAYOR this 13th day of April , 1981 . Approved as to form: Barbara Y. Shinpoch , Mayor awrence J . rren , City Attorney Date of Publication : May 15, 1981 ITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON • PHILIP K. SWEIGERT 304 U.S. COURTHOUSE UNITED STATES MAGISTRATE November 5 , -19 8 2 SEATTLE. WASH. 98104 (206) 442-1396 • Jack R. Burns - 10940 N.E. 33d Place, Suite 107 E F IVE Bellevue , WA 98004 1111 Mark E. Barber Nov 5, h82 100 S. Second Street P. O. Box 626 Renton, WA 98057 CITY CLERK Gentlemen: Re: Playtime v. Renton Case Nos. C82-59M & C82-263M Attached are copies of my Report and Recommendation and proposed form of Order in the above-captioned case. The originals are being filed with the Clerk. Any objec- tions to, or memoranda in support of the recommendation should be filed and served within ten days with copies to the Clerk for forwarding to the District Judge and to my office. You should also file and serve a Notice of Motion placing those objections on the Judge ' s calendar for the third Friday following filing of those objections. If no timely objections are filed, the matter will be ready for a ruling by the Judge not later than two weeks from the date of this letter or November 19 , 1982 . Thank you for your cooperation. Yours very truly, uff 'Philip K. Sweige United States Ma i trate Attachments PKS/vlk cc: Colleen Garrigus File Nos. C82-59M & C82-263M 1 ' 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 PLAYTIME THEATRES , INC. , et al. , ) 10 Plaintiffs , ) 11 v. ) CASE NO. C82-59M 12 CITY OF RENTON, et al. , ) ) 13 Defendants. ) ) REPORT AND RECOMMENDATION 14 ) CITY OF RENTON, et al. , ) 15 ) Plaintiffs , ) 16 v. ) CASE NO. C82-263M 17 ) PLAYTIME THEATRES , INC. , et al. , ) 18 ) Defendants. ) 19 ) 20 II INTRODUCTION AND SUMMARY CONCLUSION 21 On February 23 , 1982 , the Court, approving and adopting a 22 Report and Recommendation filed February 3 , 1982 (Dkt. #22) , entered an order denying plaintiffs ' motion for temporary re- 23 24 straining order (Dkt. #39) . Three motions are presently befor= the Court : First, plaintiffs ' motion for preliminary injunc- 25 26 tion, second, defendants ' renewed motion to dismiss , and, thir. , defendants ' motion for summary judgment. At a hearing conduct 27 ed on June 23, 1982 , the undersigned heard oral testimony, 28 received documentary evidence, and heard the arguments of 29 counsel with respect to all three motions . Based thereon and 30 upon the affidavits and the balance of the record before me, 31 and for the reasons set forth herein in some detail , I conclud: 32 REPORT AND RECOMMENDATION - 1 FPI-SST-104-78 12S>f-1235 0 1 (that plaintiffs have established both a clear likelihood of success on the merits and irreparable injury. I recommend that 3 the Court enjoin enforcement of Renton ' s zoning ordinance deal- 4 ling with adult theatres . I also, of course, recommend denial 5 of defendants ' dismissal and summary judgment motions. 6 THE RECORD BEFORE THE COURT 7 (A) The Ordinances. 8 In April of 1981, the City of Renton enacted Ordinance 9 No. 3526 providing that adult motion picture theatres as de- 10 'fined therein were prohibited: 11 (1) Within or within 1, 000 feet of any residential 12 zone or single family or multiple family use; 13 (2) Within one mile of any public or private school; 14 (3) Within 1 ,000 feet of any church or other reli- 15 gious facility or institution; and, 16 (4) Within 1,000 feet of any public park or P-I zone . 17 I Early in 1982 , plaintiffs acquired two existing theatre 18 buildings in the City of Renton. It was their intention to ( 19 show feature length sexually explicit adult films in one of 20 them. The theatre buildings , however, were located in an area 21 proscribed by Ordinance No. 3526 , prompting plaintiffs to com- 22 mence the present action seeking damages and an injunction prohibiting enforcement of the ordinance on due process , First 23 Amendment, and equal protection grounds . Their principle con- 24 tentions are that the City of Renton failed to factually suppo t 25 26 a sufficient governmental interest justifying intrusion upon protected speech and that the ordinance was not a mere loca- 27 tional restriction but a virtual prohibition of adult theatres 28 in the City of Renton. 29 While the case was pending, more specifically in May, 198 • , 30 defendant City of Renton enacted Ordinance No. 3629 , which 31 amended Ordinance No. 3526 . The principle changes were : 32 REPORT AND RECOMMENDATION - 2 FPI--SST-10 3.711 125>1-1215 1 (1) The amending ordinance contained an elaborate 2 statement of the reasons for enacting both Ordinance No. 3 3526 and Ordinance No. 3629 ; 4 (2) A definition of the word "used" was added; 5 (3) Violation of the use provisions of the ordinance' 6 was declared to be a nuisance per se to be abated civilly 7 and not by criminal enforcement; 8 (4) The required distance of an adult theatre from a 9 school was reduced from one mile to 1, 000 feet; and, 10 (5) A severability clause was added. 11 The amending ordinance, No. 3629 , also contained an emer- 12 gency clause and was to be effective as of the date of its 13 passage and approval by the mayor, May 3 , 1982 . 14 On June 14 , 1982 , defendants passed yet a third ordinance , 15 No. 3637 , which was identical to Ordinance No. 3629 in all 16 respects except that the emergency clause was deleted and the 17 ordinance was to become effective thirty days following its 18 publication. 19 While plaintiffs argue that the only ordinance before the 20 Court is No. 3526 , they are clearly incorrect. Their request 21 for injunctive relief obligates the Court to consider any and all changes in the applicable zoning scheme to the date of its 22 ruling. 23 (B) Events Leading to Passage of the Ordinances. 24 The City of Renton presently has no theatres which exhibi 25 sexually explicit adult films. It appears that in May of 1980 , 26 at the suggestion of a City of Renton hearing examiner, the 27 mayor suggested to the City Council that they consider the 28 advisability of passing zoning legislation dealing with adult 29 entertainment uses , specifically "adult theatre [s] , bookstore [ ] , 30 film and/or novelty shop [s] " prior to the time any such busi- 31 nesses might seek to locate in the city. The mayor' s memorand o 32 REPORT AND RECOMMENDATION - 3 'PI-SST-IO.:F78 I25\I--1235 1 isuggested that some cities had experienced difficulties in 2 ,I"re-doing" their zoning ordinances once such uses were esta- ' 3 Iblished in the community. 4 On March 5 , 1981, the Planning and Development Committee of the Council held a meeting for the purpose of taking public 6 testimony on the subject. While there is no record of that 7 meeting, Mr. Clemens, then the City' s acting Planning Director 8 Irwho was present at the meeting, testified that the Superinten- 9 ,dent of Schools, and the President of the Renton Chamber of IICommerce 10 spoke to concerns about adverse affects which adult 11 entertainment uses would have upon the economic health of 12 Renton' s businesses and upon children going to and from school. 13 He also testified that other citizens spoke generally about the 14 adverse affects of such uses . Mr. Clemens further testified 15 "that he and his department reviewed the decisions of the Wash- 16 'ington State Supreme Court in Northend Cinemas v. Seattle, 90 17 IWn. 2d, 709 , and of the United States Supreme Court in Young v. American Mini Theatres , 427 U.S. 50 (1976) , and presented the 18 'information from their review to the Planning and Development 19 (!Committee. He indicated generally that review of those cases 20 ' indicated that adult entertainment uses tend to decrease pro- 21 perty values and increase crime. 22 On April 6 , 1981, the Planning and Development Committee 23 of the Council recommended that an appropriate zoning ordinance `. ill 24 be written to reflect the following conditions : 25 " (a) No adult motion picture theatre will be 26 allowed in an area used or zoned residential or in any P-I public use area. 27 " (b) A suitable buffer strip of 1,000 feet 28 from any residential or P-I area also be a banned area; 29 " (c) The area enclosed in a one mile radius 30 of any school (this is the minimum student walking distance) would also be a banned area. " 31 Ordinance No. 3526 was the result. 32 REPORT AND RECOMMENDATION - 4 FI'I-SST-10..1.78 1LS>f-1 SOS 1 (C) The Effect of the Ordinance. 2 While the record would indicate that there are some 200 3 acres of property within the city limits of Renton where 4 an adult theatre might conceivably locate, the testimony and 5 affidavits show that, with but one exception, none of that pro- . 6 perty would be suitable for the location of a theatre. The 7 ' area is largely undeveloped and what development there is is 8 ' entirely unsuitable for retail purposes in general and for 9 itheatre purposes in particular. The developed areas include: 10 (1) A Metro sewage disposal site and treatment plant; 11 (2) Longacres Racetrack and environs; 12 (3) A business park containing buildings suitable 13 only for industrial use; 14 (4) Warehouse and manufacturing facilities; 15 (5) A Mobile Oil tank farm; and, 16 (6) A fully developed shopping center. 17 The entire area potentially available for the location of 18 fan adult theatre is far distant from the downtown business 19 li ai ct.rict, not well lit during night time hours, and also 20 ` generally devoid of pedestrian and vehicular traffic during 21 such hours . 22 The two sites which are potentially suitable are fully developed and occupied by fast food restaurants. 23 DISCUSSION 24 As indicated in my prior Report and Recommendation, the 25 26 party requesting injunctive relief must clearly show either: 27 (1) probable success on the merits and possible irreparable injury, or (2) sufficient serious questions as to the merits 28 to make them a fair ground for litigation and a balance of 29 hardship tipping decidely in favor of the party seeking relief. 30 Los Angeles Memorial Coliseum Commission v. N.F.L. , 634 F. 2d 31 1197 (9th Cir. 1980) . I conclude that plaintiffs meet the , 32 foregoing test. FPI-SST-10 3-78 125M-1235 REPORT AND RECOMMENDATION - 5 • 1 (1) Probability of Success on the Merits. 2 A city' s authority to zone is a well recognized aspect of 3 the police power. But when a zoning ordinance infringes upon 4 :speech protected by the First Amendment, it must be narrowly 5 :drawn to further a substantial government interest. Schad v. 6 Borough of Mt. Ephraim, 452 U.S. 61 (1981) ; Kuzinich v. County 7 of Santa Clara, F. 2d , No. 81-4460 Ninth Circuit slip 8 op. October 12 , 1982 . The City of Renton' s zoning ordinance 9 ,relating to adult theatres plainly implicates First Amendment 10 rights . It is not limited to motion picture theatres catering 11 Ito those with an appetite for obscene films falling outside the 12 protections of the First Amendment, Miller v. California, 413 13 U.S. 15 (1973) . Rather, patterned upon the ordinance approved 14 in Young v. American Mini Theatres , 427 U.S. 50 (1976) , it re- 15 gulates sexually explicit but nonobscene films as well. 16 Defendant City of Renton contends, however, that no First 17 'Amendment rights are involved because the ordinance only regu- 18 Ilates the time, place, and manner of the operation of adult 19 'theatres. It relies on American Mini Theatres, supra. However, 20 I believe the ordinance in American Mini Theatres is clearly 21 distinguishable. The ordinance in the instant case, for all 22 practical purposes , excludes adult theatres from the City of ( Renton and therefore greatly restricts access to lawful speech. 23 ' ' The ordinance approved in American Mini Theatres had no such 24 effect. 25 26 Defendants contend that the City has provided an area 27 within which adult theatres may locate. However, while in 28 theory such area is available, in fact, the area is entirely unsuited to movie theatre use. Restricting adult theatres to 29 the most unattractive , inaccessable, and inconvenient areas of 30 the city has the effect of suppressing or greatly restricting 31 access to lawful speech. American Mini Theatres, supra, 427 32 REPORT AND RECOMMENDATION - 6 FPI-SST-I0 3.78 115N1-12.15 1 IU.S . at 71 n. 35. See Basiardanes v. City of Galveston, 682 F. l 9 2d 1203 (5th Cir. 1982) ; Avalon Cinema Corporation v. Thompson, 3 667 F. 2d 659 (8th Cir. 1981) ; Keego Harbor Co. v. City of .1 IKeego Harbor, 657 F. 2d 94 (6th Cir. 1981) ; Alexander v. City 5 of Minneapolis , 531 F. Supp. 1162 (N.D. Minn. 1982) ; Purple (Oni 6 on, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) ; 7 Bayside Enterprises , Inc. v. Carson, 450 F. Supp. 696 (M.D. Fla. 8 1978) ; E & B Enterprises v. City of University Park, 449 F. 9 ,Supp. 695 (N.D. Tex. 1977) ; cf. Deerfield Medical Center v. 10 City of Deerfield Beach, 661 F. 2d 328 (5th Cir. 1981) . 11 Because the Renton ordinance drastically impairs the 12 availability in Renton of films protected for adult viewing by 13 the First Amendment, it must be reviewed under the stringent 14 standards of Schad, supra. Schad directs the court to examine 15 the strength and legitimacy of the governmental interest behind 16 , the ordinance and the precision with which it is drawn. Unless 17 the governmental interest is significant and is advanced with- 18 Lout undue restraint on speech, the ordinance is invalid. Schad, 19 052 U.S. at 70 . 20 The City of Renton has asserted that it has a substantial . " li 21 (governmental interest in zoning restrictions which will prevent deterioration of its neighborhoods and its downtown areas. But 22 it is not sufficient to assert such interest. The City must 23 establish a factual basis for its asserted reasons and that it 24 considered those facts in passing the ordinance. Those reasons 25 must be unrelated to the suppression of free expression. 26 United States v. O'Brien, 391 U.S. 367 (1968) ; Kuzinich v. 27 County of Santa Clara, supra. 28 Many of the conclusory statements of the reasons for 29 enacting the Renton ordinances reflect simple distaste for 30 adult theatres because of the content of the films shown. 31 ( Those statements directed at legitimate fears such as preven- 32 REPORT AND RECOMMENDATION - 7 FPI--SST-I0-:1.7R 121%1-12:15 1 kion of crime and deterioration of business and residential 9 neighborhoods are based principally upon the Planning Depart- ments review of other court cases in which zoning legislation 4 ' regulating the location of adult businesses has been approved. 5 The City had little or no empirical evidence before it when the 6 initial ordinance was passed. More is required. Avalon Cinema 7 Corporation v. Thompson, supra; Keego Harbor Co. v. City of 8 IKeego Harbor, supra; Basiardanes v. City of Galveston, supra. 9 I conclude that the manner in which the ordinance was enacted, 10 its narrow focus on adult theatres to the exclusion of other 11 adult entertainment uses which would presumedly contribute to 12 the same concerns , and the fact that most of the findings set forth 13 in the amendatory ordinance reflect citizen distaste for adult \�. 14 theatres because of the film fare shown, suggests an improper 15 motive. 16 Even assuming that the City has established a substantial 17 lgovernmental interest, however, the ordinance will not pass 18 constitutional muster. The ordinance must be narrowly drawn 1i1 ito serve that interest with only a minimum intrusion upon First 20 (Amendment freedoms. Schad, supra. Here the intrusion upon 21 'First Amendment expression is not minimal. Adult theatres are , 22 for all practical purposes , excluded from the City of Renton. The ordinance constitutes a prior restraint on speech and shoul. 23 Ibe held to be unconstitutional . 24 (2) Irreparable Injury. 25 26 Irreparable injury is ,clear. Plaintiffs may not exhibit sexually explicit adult films without being subjected to civil 27 28 abatement proceedings. The loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes 29 ( irreparable injury in the context of a suit for injunctive 30 relief. Elrod v. Burns , 427 U.S. 373 (1976) ; Deerfield Medical 31 Center v. City of Deerfield Beach, supra; Citizens for a Bette 32 Environment v. City of Park Ridge, 567 F. 2d 689 (7th Cir. 1975) . F'1'I-SST-10.3.78 1:iM-1235 REPORT AND RECOMMENDATION - 8 1 I recommend that the Court enjoin enforcement of City of Renton Ordinance No. 3637 pending disposition on the merits. 3 ,IA proposed form of Order accompanies this Report and Recommen- 4 'dation. 5 DATED. this 5th day of November, 1982. 6 Philip K. Sweigert • 8 United States Magistrate 9 10 11 12 13 14 15 16 -- --- 17 I 18 19 • 20 21 22 23 24 25 26 27. • 28 29 30 31 32 REPORT AND RECOMMENDATION - 9 I'I'I -SST-103.78 12.5\1-1235 1 3 4 ii 5 J 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON ( • 8 i AT SEATTLE PLAYTIME THEATRES , INC. ; et al. , ) 9 ) Plaintiffs, ) 10 ) v. ) CASE NO. C82-59M 11 ) CITY OF RENTON, et al . , ) 12 ) Defendants . ) ORDER DENYING DEFENDANTS ' 13 ) MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND 14 (CITY OF RENTON, et al. , ) GRANTING PRELIMINARY INJUNCTION PENDENTE LITE 15 Plaintiffs, ) ) 16 v. ) CASE NO. C82-263M I! ) - • 17 I�PLAYTIME THEATRES, INC. , et al. , 18 Defendants. ) ) 19 \. it The Court, having considered plaintiffs' motion for 20 preliminary injunction, defendants ' renewed motion to dismiss 21 land motion for summary judgment, the Report and Recommendation 22 lof United States Magistrate Philip K. Sweigert, and the balance 23 of the records and files herein, does hereby find and ORDER: • 24 (1) Said Report and Recommendation is hereby approved 25 and adopted; 26 (2) Defendants ' motion for summary judgment and renewed 27 motion to dismiss and hereby DENIED; 28 (3) Defendant City of Renton, its officers, agents, 29 servants , employees, successors, attorneys, and all those in 30 active concert or participation with them, are enjoined from 31 enforcing City of Renton Ordinance No. 3637 against plaintiffs , 32 ORDER - 1 F'PI-SST-10•3.78 123M-1235 • 1 said preliminary injunction to remain in effect P Y pending a 9 decision by this Court on the merits and until further order of 3 the Court; and, 4 (4) The Clerk of Court is to direct copies of this Order 5 Ito all counsel of record and to Magistrate Sweigert. 6 DATED this day of , 1982 . 7 ► 8 9 CHIEF UNITED STATES DISTRICT JUDGE 1 10 11 12 13 • 14 15 1G 17 18 19 1 20 • 21 22 23 24 25 • 26 27 • - 28 29 30 31 32 ORDER - 2 FPI-SST-101.78 125V-1235 OF R4, 11/�' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON 0 41, z Tr, POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON, wASHINGTON 98055 255-8678 Ma rn 00 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY DAVID M. DEAN, ASSISTANT CITY ATTORNEY 0,$) SEP��'O�P June 21 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY TO : Barbara Y. Shinpoch, Mayor Members of City Council FROM: Daniel Kellogg, Assistant City Attorney Enclosed please find a copy of our Reply Brief which is being filed in response to Mr. Forbes ' Brief for purposes of the Motion hearing on Wednesday, February 23, 1982. For your information, both parties have filed dispositive motions. Mr. Forbes ' Motion is for issuance of a preliminary injunction to restrain the City from enforcement of its ordinances . The City has filed a motion for Summary Judgment asking that the Court order that Mr. Forbes is not entitled to the relief which he had requested as a matter of law. In other words , we are asking the Court to find that our ordinances are constitutional. If Mr. Forbes is successful, we may expect that he will commence showing his pornographic movies immediately. If our motion is granted, Mr. Forbes' case will be dismissed. Please contact our office if you have any further questions . Daniel `Kellogg DK:nd Encl . -' ,' cc : City Clerf/ +-� o(8L 'kiek t Dave Clemens .��1 C,� '' Magistrate Sweigert 1 June 23 , 1982 1 : 30 p .m. 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE 10 PLAYTIME THEATRES, INC. , a ) 11 Washington corporation , et al . , ) ) NO. C82-59M 12 Plaintiffs , ) ) DEFENDANTS ' REPLY BRIEF IN 13 vs . ) OPPOSITION TO MOTION FOR ) PRELIMINARY INJUNCTION AND 14 THE CITY OF RENTON, et al . , ) IN SUPPORT OF DEFENDANTS ' ) MOTION FOR SUMMARY JUDGMENT 15 Defendants . ) ) 16 ) THE CITY OF RENTON, a ) 17 municipal corporation , ) ) NO. C82-263 18 Plaintiff , ) ) 19 vs . ) ) 20 PLAYTIME THEATRES, INC. , a ) Washington corporation , et al . , ) 21 ) Defendants . ) 22 ) 23 I . INTRODUCTION. 24 For purposes of this motion only, Defendants shall assume 25 that Plaintiffs are offering to exhibit films which are protected 26 by the First Amendment . In that guise of First Amendment 27 protection , Plaintiff appears to be attempting to require the 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW ioo�o. SECOND sT., P. O. SOX sze IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 1 255.8678 1 City of Renton to assure that Plaintiff will be able to locate 2 its theaters at locations which , in Plaintiffs ' opinion , are 3 suitable , without regard to zoning considerations which the City 4 must make on behalf of all of its residents and businesses . No 5 other enterprise could advance such a preposterous notion . Even 6 the First Amendment does not require that the City repeal the 7 laws of the marketplace ( such as "supply and demand" and the rule 8 that private parties may not be required to sell or lease to , or 9 be associated with Plaintiffs ' trade) in order to assure that 10 Plaintiff can operate its business within the City of Renton . 11 The City' s duty is only to enact laws which assert valid 12 governmental interests , and which impose no substantial burden on 13 protected expression . Plaintiff is entitled to' no guarantee to be 14 free from economic loss . 15 II . PRELIMINARY INJUNCTION 16 A. The purpose of a preliminary injunction is to preserve the status 17 quo . 18 A preliminary injunction is an extraordinary remedy, the 19 nature and purpose of which is to "preserve the status quo 20 pending a determination of the action on the merits ." King vs . 21 Saddleback Jr . College District , 425 F. 2d 426, 427 (9th Cir . 22 1970) , citing Washington Basketball Club , Inc . vs . Barry, 419 F . 23 2d 472 (9th Cir . 1969 ) ; Los Angeles Commission vs . NFL , 634 F . 2d 24 1197 , 1200 (9th Cir . 1980) . In this case the issuance of a 25 preliminary injunction will not preserve the status quo . Just as 26 at the hearing upon the Plaintiff' s request for a Temporary 27 Restraining Order , the status quo is that the Plaintiff is not 28 showing pornographic movies . The Plaintiff' s use of the theaters DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND goo so. SECOND O AT LAWST., P. O. BOX a:e IN SUPPORT OF DEFENDANT 'S MOTION FOR RCNTON♦ WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 2 1 in question for the exhibition of movies which are not violative 2 of the ordinances of the City of Renton has continued throughout 3 these proceedings . 4 B. The Plaintiff cannot satisfy the test for issuance of a Preliminary 5 Injunction . 6 The 9th Circuit employs two different tests to determine 7 whether a preliminary injunction should issue . The first , and . 8 most common test , includes four factors : ( 1 ) There must be a 9 substantial likelihood that the plaintiff will ultimately prevail 10 on the merits of his claim; (2) The injunction must be necessary 11 to prevent irreparable injury; (3 ) The threatened injury to the 12 plaintiff must outweigh the harm the injunction might do to the 13 defendants ; and ( 4 ) The entry of the injunction must be 14 consistent with the public interest . Friends of the Earth , Inc . 15 vs . Coleman , 518 F. 2d 323, 330 (9th Cir . 1975) ; King vs . 16 Saddleback Jr . College District , supra ; Henry vs . First National 17 Bank of Clarksdale , 595 F . 2d 291 , 302 (5th Cir . 1979) , reh . den . 18 601 F. 2d 586 , cert. den. 444 U. S. 1974, 100 Sup. Ct . 1020. See 19 also Columbia Basin Protection Association vs . Kleppe , 417 F . 20 Supp. 46 (E. D. Wash. 1976 ) ; Sierra Club vs . Hathaway , 579 F. 2d 21 1162 (9th Cir . 1978) . 22 The second test is the two-prong test set forth in Wm. 23 Inglis & Sons Baking Company vs . ITT Continental Baking Company , 24 526 F . 2d 86 (9th Cir . 1975 ) . There the Court indicated that the 25 moving party must demonstrate either ( 1 ) a combination of 26 probable success on the merit and the possibility of irreparable 27 injury , or (2) that serious questions are raised and the balance 28 of hardship tips sharply in its favor . WARREN & KELLOGG. P.S. DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND ,0010. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057 255-8878 QIIMMADV TIITICMCMT DAt'C 7 1 In applying these tests , the Court must keep in mind that 3 must be based upon established equitable grounds . "The grant of 4 a preliminary injunction is the exercise of a very far-reaching 5 power never to be indulged in except in a case clearly warranting 6 it" . Sierra Club vs . Hickle , 432 F. 2d 24 (9th Cir . 1970) ; Dymo 7 Industries , Inc . vs . Tapeprinter , Inc . , 326 F . 2d 141 (9th Cir . 8 1964) . A preliminary injunction should not issue if there is an 9 adequate remedy at law. Los Angeles Memorial Coliseum Commission 10 vs . NFL, 634 F. 2d 1197, 1202 (9th Cir . 1980 ) ; Germon vs . Times 11 Mirror Co.,, 520 F . 2d 786 (9th Cir . 1975) . 12 C. Plaintiff must bear the burden of proof of "convincing presentation" to 13 establish necessity of injunctive relief. 14 The - plaintiff must bear the burden of proof to establish 15 its right to injunctive relief by something more than a 16 preponderance of the evidence . In the case of Sierra Club vs . 17 Hickle , supra , the Court required a "convincing presentation ." 18 In the case of Friends of the Earth , Inc . vs . Coleman , supra , the 19 court required the plaintiff to show a "strong likelihood" or 20 "reasonable certainty" that he will prevail on the merits . 21 D. The cases relied upon by the 22 Plaintiff are distinguishable . 23 Plaintiffs rely upon the cases of 414 Theater Corporation 24 vs . Murphy, 499 F. 2d 1155 (2nd Cir . 1974) , and Citizens for a 25 Better Environment vs . City of Park Ridge , 567 F. 2d 689 ( 1975) . 26 In 414 Theater Corporation the adult use had existed for 27 five years prior to the institution of the criminal prosecutions 28 against which injunctive relief was requested . Furthermore , the WARREN & KELLOGG. P.S. DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEY• AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND too oo. SECOND •T.. P. O. Box 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 4 1 regulation complained of was a city-wide licensing requirement . 2 r � .. __ _ � , one regulation vested sole discretion in an 3 administrator for issuance of the license . In this case , the 4 ordinance pre-dated the proposed use . The ordinance is not a 5 total ban upon protected expression within the City of Renton , 6 but is merely a time , place and manner restriction . The 7 regulatory scheme vests no administrative discretion which is 8 subject to arbitrary and standardless review . 9 In the case of Citizens for a Better Environment , the 10 regulation complained of was also a city-wide ban against 11 solicitation for funds . There the plaintiffs had no opportunity 12 to express their First Amendment rights while awaiting a 13 determination of the constitutionality of the blanket 14 restriction . In the instant case , there is no deprivation of 15 constitutionally protected rights except in those locations which 16 are proscribed by the ordinances . Other areas of the City remain 17 available for free expression of adult oriented erotic material . 18 E. Issuance of a preliminary injunction is incompatible with the public 19 interest . 20 In this case , the element of consistency with the public 21 interest required by the 9th Circuit should be of particular 22 concern to the Court , particularly in view of the status quo of 23 this fact situation . 24 III . YOUNG VS . AMERICAN MINI THEATERS . 25 A. The mandate o-' Young remains 26 unabated . Plaintiff must in some fashion overcome the mandate of 27 Young vs . American Mini Theaters , 427 U. S. 50, 96 S. Ct . 2440, 49 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTONNEYB AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND IOO SO. SECOND ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255.8678 1 L . Ed . 2d 310 ( 1976 ) . See also Nortland Cinema , Inc . vs . 2 Seattle , ... y , J�J 1 26 1 I5_, l i ( v ) , cei C:. 14 3 U . S. 946. Plaintiff dedicated to an attempt to discredit that 4 holding by citation from the dissent and emphasis upon the 5 plurality nature of the opinion . 6 Justice Powell concurred in Parts I and II of the opinion 7 written by Justice Stevens . Young , supra , at 73. Part I holds 8 that the language of the Detroit ordinance (which is virtually 9 indentical to the language of the Renton ordinances) is not 10 unconsitutionally vague as to the theater operators who ( like the 11 Plaintiff here) propose to offer adult film fare on a regular 12 basis . Young , at 59. Furthermore , complaints of vagueness may 13 not be raised on behalf of others if the regulations deterrent 14 effect on legitimate expression is not "both real and 15 substantial" and the regulation is "readily subject to a 16 narrowing construction by the state courts ." Young , at 60 , 17 quoting from Drznoznik vs . City of Jacksonville , 422 U. S. 205, 18 216 , 95 S. Ct . 2268, 45 L. Ed . 2d 125. 19 Part II of the plurality opinion contains the essence of 20 the court ' s decision relating to the power of the municipality to 21 control the location of theaters exhibiting sexually explicit 22 material . There the court noted that the ordinance imposed no 23 limit upon the total number of adult theaters which may operate 24 in the City, and that " . . . the market for this commodity is 25 essentially unrestrained . " Young , at 62. The Court concluded : 26 " . . . we have no doubt that the municipality may control the location of theaters as well as the 27 location of other commercial establishments , either by" confining them to certain specified commercial 28 zones , or by requiring that they be dispersed DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW f00 SO. SECOND ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RCNTON. WAIHINGTON 98057 255.8678 SUMMARY JUDGMENT PAGE 6 • 1 throughout the City . The mere fact that the commercial exploitation of material protected by the 2 . _. Lt., 1 .. _ �.v L'J r!1�:�j , cI:u licensing requirements , y is not a sufficient reason 3 for invalidating these ordinances ." 4 • . . . 5 " Reasonable regulation of the time , place and manner of protected speech , where those regulations 6 are necessary to further significant governmental interests , are permitted by the First Amendment . . . . " 7 At 62-63 . 8 The holding of the Young court is thus a majority decision , 9 notwithstanding Plaintiff ' s valiant attempts to dilute its 10 impact . 11 Justice Powell ' s concurring opinion commends the Detroit 12 type ordinance as " . . . an example of innovative land use 13 regulation , implicating First Amendment concerns only 14 incidentally and to a limited extent ." At 73. Through reliance 15 upon the four-part test of United States vs . O 'Brien , 391 U. S. 16 367, 88 Sup. Ct . 1673, 20 L. Ed . 2d 672 (1968) , Justice Powell 17 reached the identical conclusion as that of the plurality 18 opinion---that this particular strategy of urban planning has no 19 significant effect upon accessibility of erotic material . 20 Therefore the ordinance did not constitute a stifling of 21 expression . Stevens , J . , at 34 , n . 35 ; Powell , J . , at 80 , n . 4 . 22 B. The Renton Ordinances meet the standards set forth in United States 23 vs . O 'Brien . 24 The ordinances in question here also satisfy Justice 25 Powell ' s analytical approach , which would apply the four-part 26 test of O'Brien , supra. First , enactment of the ordinance is 27 within the police power of the City of Renton . Second , as noted 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYS AT LAW 100 SO. SECOND ST., r. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON, WASHINGTON 98057 SUMMARY JUDGMENT PAGE 7 255-8678 1 by Justice Powell , the interests furthered by the adoption of the 9 ord 1 ,ln ,,,ac 7rn n, i e,.hcti n,4- : ..l 3 "Without stable neighborhoods , both residential and commercial , large sections of a modern City quickly 4 can deteriorate into an urban jungle with tragic consequences to social , environmental and economic 5 values . While I agree with respondents that no aspect of the police power enjoys immunity from 6 searching constitutional scrutiny , it also is undeniable that zoning , when used to preserve the 7 character of specific areas of a City , is perhaps ' the most essential function performed by local 8 government , for it is one of the primary means by which we protect that somtimes difficult to define 9 concept of quality of life '" . Young , at 80 . (citation omitted) . 10 Third , the governmental interest asserted is entirely 11 unrelated to the suppression of free expression . Ordinance No . 12 3526 was enacted nearly one year before Plaintiff announced its 13 intention to operate an adult motion picture theater within the 14 City, and after a period of study which pre-dated the enactment 15 of the ordinance by nearly another year . Had the City Council 16 intended to restrict the message purveyed by adult theaters , the 17 legislation adopted would have completely prohibited their 18 location , or substantially restricted their number . 19 Finally , the incidental restriction upon Plaintiffs claimed 20 First Amendment rights is not greater than is essential . The 21 restrictions imposed are the product of careful legislative study 22 in order to protect the quality of life enjoyed by residents . As 23 the Supreme Court stated : 2a . . . the city' s interest in attempting to preserve 25 the quality of urban life is one that must be accorded high respect . Moreover , the city must be 26 allowed a reasonable opportunity to experiment with solutions to admittedly serious problems ." Young , at 27 71 . 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND 100 so. ATTONDEY• AT LOw SECOND BT., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RCNTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 8 255.8676 1 IV. ORDINANCE NOS . 3526 AND 3629 . 2 A. Mere neeo De no legislative history to support the actions of the Renton 3 City Council . 4 Plaintiff argues that there is no written or recorded 5 legislative history to support the enactment of the ordinances . 6 A City Council must make findings of fact to support rezoning 7 legislation (which is a quasi judicial function) . Parkridge vs . 8 Seattle , 89 Wn 2d , 454 , 537 P. 2d , 359 ( 1978) . However , no 9 findings are required for the adoption of legislation such as the 10 ordinances in question which create zones (which is a legislative 11 function) . 12 However , the City has set forth its findings of fact in 13 Ordinance No. 3629. Plaintiffs suggest that the City must engage 14 in an independent empirical analysis to support its ordinance . 15 That approach was rejected in Genusa vs . City of Peoria , 619 F. 16 2d 1203 , 1211 (1980) . 17 "Even though here , unlike in Young , the city has not demonstrated a past history of congregated adult uses 18 causing neighborhood deterioration , we agree with the district court that a city need not await 19 deterioration in order to act . A legislative body is entitled to rely on experience and findings of other 20 legislative bodies as a basis for action . There is no reason to believe that the effect of congregated 21 adult uses in Peoria is likely to be different than the effect of such congregations in Detroit . 22 Plaintiff would apparently ask the court to look beyond 23 findings of fact enunciated by the City Council to question the 24 motives and intent of the Council members . As stated in Lillion 25 vs . Gibbs , 47 Wn 2d 629 , 633, 289 P. 2d 203 ( 1955) : 26 "In the absence of fraud , this court will not inquire 27 into the motives which actuated the local legislative body to enact , or fail to enact , an ordinance or 28 resolution . (citations omitted . ) DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND +OOSO. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 CITMMAPY .TIInrMFNT PAnF Q 1 Therefore , there being not even a hint of fraud , the adequacy of 2 trie 1Cj1Jiat1ve nistory is not a -proper issue for tnis Court . io 3 review the legislative history would be an impermissive violation 4 of the doctrine of separation of powers . 5 B. Plaintiff ' s attack on the "viability" of other locations diverts attention 6 from the real issue . 7 The Court must not be diverted from the real issue in this 8 case : ( 1 ) the facial constitutionality of the ordinances , and 9 (2) the constitutionality of their application to the specific 10 parcels of property owned by the Plaintiffs . Plaintiffs 11 apparently intend to place at issue the viability of parcels of 12 land located elsewhere within the City for location of adult 13 entertainment land uses , citing Shad vs . Borough of Mt . Ephraim , 14 U . S. , 101 Sup. Ct . , 68 L. Ed . 2d 671 ( 1981 ) , Avalon 15 Cinema Corporation vs . Thompson , F. 2d (8th Cir . Dec . 12, 16 1981 ) , and Alexander vs . City of Minneapolis , F . Supp . , 17 (D. C. Minn . , Feb. 19, 1982) . 18 Plaintiff may not advance the question of viability of 19 other sites to disguise the fact that its specific locations are 20 proscribed by the face of the ordinances . As noted by Justice 21 Powell in his concurring opinion , 22 "The constraints of the ordinance with respect to location may inded creat economic loss for some who 23 are engaged in this business . But in this respect they are affected no differently from any other 24 commercial enterprise that suffers economic detriment as a result of land use regulation . The cases are 25 le.gion that sustained zoning against claims of serious economic damage . (citations omitted) " 26 "The inquiry for First Amendment purposes is not 27 concerned with economic impact ; rather , it looks only to the effect of this ordinance upon freedom of 28 expression ." DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO. SECOND ST.. ►. O. BOX 62E IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 RIIMMAPV T11nr.MPNT PAr.i in 1 " . . . to be sure some prospective patrons may be inconvenienced by this dispersal ." 2 The City of Renton has no argument with the decision of 3 Shad which is a Supreme Court case . The regulation complained of 4 in that case completely restricted "live entertainment land uses" 5 from the entire city . This regulation is readily distinguishable 6 from the ordinances here , which leave vast areas of the City 7 available for location of adult entertainment land uses . The Mt . 8 Ephraim ordinance failed the test established by Young that the 9 challenged restriction must impose no more than a minimal burden 10 on protected speech . 11 The Avalon case which Plaintiffs rely upon is likewise 12 distinguishable . There the City Council enacted an emergency 13 ordinance in order to prevent the opening of an adult theater 14 which was virtually ready to open . The record there displayed 15 the City ' s intent to keep the theater from opening . Opinion , at 16 8, n . 9. The Court of Appeals could not "ignore the fact that 17 passage [of the ordinance] was an ' emergency' measure to prevent 18 the exhibition and sale of sexually-oriented films" . Opinion , at 19 8 . This violated the third part of the O'Brien test that the 20 governmental interest asserted must be unrelated to the 21 suppression of free expression . 22 In addition , the ordinance in Avalon was not narrowly drawn 23 to exclude from its provisions legitimate films in which the 24 prohibited sexual acts or parts of the body were depicted for a 25 brief period of time , no matter the artistic merit or 26 intellectual content of the film as a whole . Opinion , at 9 . The 27 provisions of the ordinances here , and in particular the 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS TO MOTION FOR PRELIMINARY INJUNCTION AND 100 a0. SECOND AT LAW SsTr., P. O. BOX aaa IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 11 • 1 provisions of Ordinance No . 3629, narrowly draw the definition of 2 the offending material to exclude from its prohibition. material 3 which displays " specified sexual activities" and " specified 4 anatomical areas" as defined therein , which are merely incidental 5 to the work as a whole . 6 Finally, plaintiff relies upon the recently decided case of 7 Alexander vs . City of Minneapolis to justify its attack on the 8 "viability" of areas within the City where it may locate an adult 9 theater . First , the decision has no precedential value before 10 . this Court . Second , the case is readily distinguishable from the 11 facts of the case at bar . There the City attempted to close 12 existing non-conforming uses over a four-year amortization 13 period . The ordinances complained of here affect no existing 14 adult entertainment land uses within the City. Furthermore , the 15 court in Alexander specifically found that the effect of the 16 regulation was significant and would substantially reduce the 17 number of adult book stores and theaters within the City. Thirty 18 pre-existing uses were to be forced to compete for a handful of 19 lawful locations . Certainly , the portion of the City of Renton 20 for which zoning remains available for development of an adult 21 motion picture theater is sufficient to afford Plaintiff an 22 opportunity to ply its trade . 23 Third , under the Minneapolis ordinance no new adult uses 24 would be allowed to open . This is in stark contrast to the 25 situation at bar where there is no restriction to the 26 establishment of new adult entertainment land uses within the 27 area circumscribed by the ordinances in question . 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO. SEC •EGONDETS AT LOW OND ST.. P. O. 90X 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 12 Z55.8678 1 C. The enactment of Ordinance No . 3629 was necessary to flesh out Ordinance 2 No . 352b . 3 The enactment of the ordinance does not constitute an 4 admission of partial unconstitutionality of Ordinance No . 3526. 5 The City has failed in its effort to convince- this Court to 6 abstain from further interference with the sovereign jurisdiction 7 of the State of Washington over its local zoning matters , so that 8 the City can obtain a construction of Ordinance No . 3526 from the 9 State Courts who are authorized and under a duty to 10 constitut'ionally construe the legislation . Therefore , the City 11 Council has furnished the "fleshing out" of certain portions of 12 Ordinance No . 3526 which it was denied by its inability to 13 proceed further in State Court . 14 Plaintiff complains of the definition of the word "use" on 15 the ground that the definition injects a subjective element into 16 the categorization of the motion pictures as prohibited or legal 17 uses . This is simply not true . The "fleshing out" of the 18 definition substantially reduces recourse to subjectivity in 19 determining what manner of "use" will bring the motion picture 20 purveyor within the constraints of the ordinance . 21 Plaintiff further complains that the abatement procedures 22 set forth in the ordinance are a prior restraint of free speech . 23 However , the abatement procedures here enacted are devoid of any 24 authorization for issuance of preliminary injunctions of 25 indefinite duration or the padlocking of premises against the 26 showing of future films . 27 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND 10050. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 cI1MMAPY _TIInrMFMT 1 D. Plaintiff has obtained no vested rights to operate an adult motion 2 tore tip. ` i- a .. location . 3 Plaintiff asserts that it has a vested right to exhibit its 4 adult films at the Renton and Roxy Theaters . Plaintiffs should 5 more properly claim to be a permitted use or a prior non- 6 conforming use , neither of which are applicable here because the 7 ordinance predated Plaintiff ' s proposed use . 8. The case of State ex rel Ogden vs . Bellevue , 45 Wn 2d 492, 9 275 P. 2d 899 ( 1954) stated that rule on vested rights in 10 Washington : 11 "The right vests when the party. . .applies for his 12 building permit , if that permit is thereafter issued . The rule , of course , assumes that the permit applied 13 for and granted be consistent with the zoning ordinances and building codes in force at the time of 14 application for the permit ." (Emphasis added) . 15 Interestingly enough , Plaintiff claims that the business 16 zone in which the Renton and Roxy Theaters are located is not a 17 permitted use in one portion of its brief , and yet asserts the 18 vested rights doctrine which requires a permitted use in another 19 section of its brief. If the argument that a theater is not a 20 permitted use in a business zone is appropriate , then there can 21 be no vested rights . 22 Plaintiffs claim a substantial investment in the property 23 and a vested interest as of the date of enactment of a later 24 ordinance , Ordinance No . 3629 , which was enacted on May 3, 1982. 25 It should be recalled that Plaintiff made that investment in 26 direct contravention of an existing Ordinance of the City of 27 Renton , with knowledge that that ordinance existed . Plaintiff 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND too BoATTORNEYS AT LAW . SECOND sT.. P. O. BOX szs IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WABHINGTON 98057 SUMMARY JUDGMENT PAGE 14 255.8678 1 did not have the right to show its adult films under Ordinance 2 No . 3526 , and that right was not changed under Ordinance No . 3 3629. No vested rights could be obtained . Plaintiffs ' use is not 4 a permitted use or a prior nonconforming use . 5 E. Ordinance No . 3629 is valid---having been properly enacted . 6 Plaintiffs have challenged Ordinance No . 3629 alleging that 7 its emergency clause invades the right of the people to exercise 8 their rights of initiative and referendum . 9 The Court should specifically note that Plaintiffs are 10 attacking an ordinance , the effect of which would be to 11 substantially increase the permissible locations within the City 12 for Plaintiffs ' theaters . Since the affect of such an ordinance 13 would be to eliminate Plaintiffs' complaint that it has been 14 excluded from the City, Plaintiff does not wish the Court to 15 consider the ordinance on its merits . Rather , Plaintiffs are 16 making a technical , procedural argument to the Court . 17 The Court should decline to involve itself in what is a 18 State question and should hold for the purpose of this 19 Preliminary Injunction hearing that the enactment is within the 20 police power of the City. The Federal Court must presume the 21 Ordinance is legal and constitutional until such time as a State 22 Court has decided otherwise . Since Plaintiff' s complaint is 23 based strictly on the Washington Constitution and State Court 24 cases , no Federal question is presented . 25 Even if the Court entertains Plaintiffs' complaint , the 26 Court should find that the ordinance is properly enacted . As a 27 general proposition , emergency clauses in zoning enactments are 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW 100 f0. SECOND ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 15 255.8878 1 given effect . See McQuillan , Municipal Corporations ( 1976 ) , 2 Section 25. 52. 3 " A zoning ordinance takes effect from the date prescribed by law. Such a date may be the result of 4 public emergency. . . . " ( footnote omitted) 5 It should be noted that Plaintiff has cited no zoning cases in 6 its arguments on emergency clauses . 7 Plaintiffs complain that the City Ordinance containing an 8 emergency clause violates Amendment VII , Article 2, 1 (b) of the 9 Washington State Constitution which reads : 10 "The second power reserved by the people is the referendum and it may be ordered on any act , bill , 11 law, or any part thereof passed by the legislature , except such laws as may be necessary for the 12 immediate preservation of public peace , health or safety , in support of the State government and its 13 existing public institutions . . ." 14 Ordinance No. 3629 contained an emergency clause stating that the 15 enactment was for the immediate preservation of the public peace , 16 health or safety, and included statements that the enactment was 17 necessary to limit the City' s financial liability. All of those 18 statements meet the requirements of the Washington State 19 Constitution . 20 In Swartout vs . Spokane , 21 Wn App . 665, 670, 586 P. 2d 135 21 ( 1978) , the Court stated the test for review of legislation with 22 an emergency clause : 23 "We have always held to the rule that the legislative declaration of the facts constituting the emergency 24 is conclusive , unless , giving effect to every presumption in its favor , the court can say that such 25 legislative declaration , on its face , is obviously false and a palpable attempt at dissimulation . . . . 26 " It is also well settled , both ' here and elsewhere , 27 that , in determining the truth or falsity of a legislative declaration of a fact , the court will 28 enter upon no inquiry as to the facts , but must DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW f00/O. SECOND ST.. P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 16 1 consider the question from what appears from the face of the act , aided by its judicial knowledge . " 2 This court , in reviewing the emergency clause in the Renton 3 Ordinance and giving affect to every presumption in the City' s 4 favor , cannot find that the facts are obviously false and a 5 palpable attempt at dissimulation . All doubts must be resolved 6 in favor of the validity of the enactment . State ex rel Hamilton 7 vs . Martin , 173 Wash . 249 , 254 , 23 P. 2d 1 ( 1933 ) ; State ex rel 8 Hoppe vs . Meyers , 58 Wn 2nd , 320 , 326, 363 P. 2d , 121 ( 1961 ) . 9 One of the recognized areas where emergency legislation may 10 be passed without referendum is when it involves police power . A 11 rather detailed explanation of police power and the referendum is 12. contained in State ex rel Case vs . Howell , 85 Wash 281 , 284 , 147 13 Pac . 1162 (1915) . 14 There should be no doubt that the zoning power is an 15 exercise of the police power of the municipality. As stated in 16 McQuillan , Municipal Corporations , 3rd Ed . Rev . ( 1976) states the 17 general rule in 2510: 18 "Relationship to Zoning to Other Police Reguluations . 19 Zoning laws in their usual form are an exercise of the police power in a particular field , to secure the 20 public health , safety or welfare but they are only one of several types of regulation of property by 21 local government , all of which are expressions of the police power . . . ." 22 The State of Washington has long recognized that zoning is 23 an exercise of the police power . The case of Farrell vs . 24 Seattle , 75 Wn wnd 540, 543 , 452 P. 2d 965 (1969 ) quotes from the 25 seminal case on zoning in Washington as follows : 26 "Zoning is a discretionary exercise of police power 27 by a legislative authority . Lillions vs. Gibbs , 47 Wn 2d 629, 289 P. 2d 203 ( 1955 ) .n 28 WARREN & KELLOGG, P.S. DEFENDANT 'S REPLY BRIEF IN OPPOSITION ATTORNEYS AT LAW TO MOTION FOR PRELIMINARY INJUNCTION AND 100 SO. SECOND ST.. P. O. SOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98O57 253-B678 011\IAAADv T11Tlf`LACMT DA(_C 17 1 In any event , Ordinance No . 3629 (which was enacted on May 2 3, 1 ;82 with an emergency clause) nas been re-enacted without the 3 emergency clause by the City Council on June 14 , 1982 as 4 Ordinance No . 3637 . by its terms it will become effective 30 5 days following its publication on June 18 , 1982 6 V. CONDITIONAL USE PERMIT. 7 Once again , Plaintiff addresses a significant portion of 8 his brief and the Court' s time to an argument that the ordinance 9 is unconstitutional on its face or as applied because of the 10 claimed absence of objective standards to determine whether to 11 grant or deny a conditional use permit for operation of an adult 12 motion picture theater . This is a "strawman" created by 13 Plaintiff' s erroneous construction of the Renton City Code . As 14 has been stated previously (See Defendant's Reply Memorandum in 15 Support of Defendant' s Motion to Dismiss , Page 10-11 ) and as 16 stated by David Clemens in his testimony before the Magistrate on 17 January 29, 1982, and at his deposition on March 3, 1982, 18 theaters (and adult theaters except as limited by Ordinance Nos . 19 3526 and 3629) are a legal use in the commercial districts of the 20 City of Renton . There is no requirement that the Plaintiffs seek 21 approval of a conditional use permit , variance or any other land 22 use permit prior to the commencement of operaton . 23 In his deposition , Mr . Clemens stated at Vol I , Pg 73: 24 Q. Could you direct me where in that section you find that an adult motion picture theater is a 25 permitted use within the B-1 business district? 26 A. It is not specifically set forth ; however , the City has interpreted , since long prior to my 27 coming to the City , that commencing with the B-1 district , a theater use and many other uses 28 that are not specifically set forth in the B-1 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG, P.S. ATTORNEYS TO MOTION FOR PRELIMINARY INJUNCTION AND 80. SECOND . LAW 100 ST., P. O. BOX 026 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 Zss-8878 SUMMARY JUDGMENT PAGE 18 1 district are allowed as being uses similar to the uses specified in the B-1 district . 2 Mr . Clemens further stated that the same analysis applies to the 3 M-P, L-1 and H-1 zones . Vol I , pg 76. 4 Any appeal from the administrative determination of whether 5 such a use is an allowed use must be made to the Hearing Examiner 6 within 14 days following the administrative determination . The 7 Hearing Examiner ' s decision is subject to review by the King 8 County Superior Court within 20 days after the date of the 9 decision . Renton City Code Section 4-3011 ( B) (5) . Appeals from 10 administrative determination are not appealed to the City 11 Council . Therefore , the Plaintiff is not subject to a 12 standardless , discretionary administrative procedure of 13 potentially unlimited duration . 14 VI . SUMMARY. 15 Having shown the constitutionality of the ordinances 16 following Young and avoiding the pitfalls of Shad , the validly 17 enacted Ordinance Nos. 3526 and 3629 must be upheld by this Court 18 and the City' s Motion for Summary Judgment granted . Plaintiffs ' 19 attempt to force the City to do its market research for viability 20 of other locations before enacting reasonable zoning legislation 21 must be rejected . Plaintiffs may not concern this Court with 22 questions of the application of these ordinances to properties 23 other than the two specific locations owned by Plaintiffs . 24 In any event , in prder to maintain the status quo , and to 25 achieve public interest , Plaintiffs ' Motion for Preliminary 26 - Injuction must be denied . There is no likelihood that Plaintiff 27 will prevail on the merits . The irreparable injury claimed to 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND ATTORNEYSAT LAW 100 BO. SECOND N ND D ST., P. O. BOX 626 IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASHINGTON 98057 SUMMARY JUDGMENT PAGE 19 255.8878 • - 1 have been suffered by Plaintiffs has been occasioned by their own 2 hands . 3 Respectfully submitted , 4 5 / 6 / / LAWRENCE J!/WARREN 7 • 8 DANIEL KELLOGG 401 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT 'S REPLY BRIEF IN OPPOSITION WARREN & KELLOGG. P.S. TO MOTION FOR PRELIMINARY INJUNCTION AND O AT LAW loo ao. SECOND ST.. P. O. SOX a:a IN SUPPORT OF DEFENDANT 'S MOTION FOR RENTON. WASNINGTON 98057 255-8678 SUMMARY JUDGMENT PAGE 20