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HomeMy WebLinkAboutPlaytime 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
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0 OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
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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
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`/ POST OFFICE eox 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678
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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
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OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
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v `o ,f 'z POST OFFICE BOX 626 100 S 2nd STREET I RENTON. WASHINGTON 98057 255-867B
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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
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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
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OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON
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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
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•
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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
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-111:11 i
ylib\N- 11100 � Ift
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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
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( REPORT AND RECOMMENDATION - 9
1'I'I--SST-103 8
125\1-1235
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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
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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
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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
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32 REPORT AND RECOMMENDATION - 6
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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 '
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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'
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•
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.
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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
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•
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
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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
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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
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•
•
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
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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
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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 .
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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
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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
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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
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ATTORNEYS AT LAW
0 SO. SECOND ST.. P. O. SOX 626
P. 14 weRENTON. WASHINGTON 98057
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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
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ATTORNEYS AT LAW
100 SO. SECOND ST.. P. O. SOX 626
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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
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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
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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 /
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ATTORNEYS AT LAW
P. 18 100 SO. SECOND ST.. P. O. BOX e2e
RENTON, WASHINGTON 98057
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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.
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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,
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- 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,..;
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` � 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,
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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
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12
13
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•
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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
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20 •
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•
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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
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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
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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
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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
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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-
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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
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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
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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
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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.
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•
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
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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
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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
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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-
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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 ;
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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
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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