Scope Pictures, of Missouri, Inc. v. City of Kansas City , 140 F.3d 1201 ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3500
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Scope Pictures, of Missouri, Inc.; Ray's*
Play Pen, Inc.; Time for News, Inc.; *
Svec Company; Larry H. Minkoff; *
Jak, Inc.; Kelkin, Inc., *
* Appeal from the United States
Plaintiffs - Appellants, * District Court for the
* Western District of Missouri.
v. *
*
City of Kansas City, *
*
Defendant - Appellee. *
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Submitted: March 9, 1998
Filed: April 20, 1998
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Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
MONTGOMERY, District Judge.1
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BOWMAN, Circuit Judge.
The appellants sued the City of Kansas City, Missouri, under 42 U.S.C. § 1983
(1994), challenging the validity of the Motion Picture Arcade Booth Establishments
Ordinance. See Kansas City, Mo., Code of Ordinances ch. 12, art. VII, §§ 12-275 to
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, sitting by designation.
12-283 (1997).2 The City enacted the ordinance in mid-1997 to regulate video viewing
booths located in adult bookstores. In passing the ordinance, the City intended "to
further the public health and safety of motion picture arcade booth establishments by
reducing the likelihood that patrons will engage in [various sexual activities] within
such commercial premises." Id. § 12-275(a). The City determined regulation of such
facilities was needed to prevent the spread of sexually transmitted diseases that may
occur "[b]ecause [of] motion picture arcade booth establishments, structures, or parts
thereof which, due to their design, are used for sexual conduct." Id. § 12-275(b). The
appellants, who each operate adult entertainment establishments, sought declaratory
and injunctive relief against the enforcement of the ordinance, asserting both federal
and supplemental state constitutional claims. After two evidentiary hearings, the
District Court3 entered judgment for the City, and the appellants appeal. We affirm.
There are several provisions in the ordinance about which the appellants
complain. First, the ordinance prohibits doors on motion picture arcade booths (the
"open-booth" requirement). Second, the ordinance requires motion picture arcade
establishments to post signs and make available to patrons pamphlets containing
information on sexually transmitted diseases. Finally, the ordinance requires that
motion picture arcade booths be maintained in a clean and sanitary condition.
The appellants first contend that the ordinance is overbroad, thus running afoul
of the Constitution. The purpose of the ordinance is to regulate "[m]otion picture
arcade booth establishments," meaning "[a]ny business wherein one or more motion
picture arcade booths are located." Id. § 12-276(b). The ordinance defines a "[m]otion
picture arcade booth" as:
2
Hereinafter sections of ch. 12, art. VII of the Kansas City, Missouri, Code of
Ordinances will be cited as "Ordinance."
3
The Honorable Gary A. Fenner, United States District Judge for the Western
District Of Missouri.
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Any booth, cubicle, stall or compartment which is designed, constructed
or used to hold or seat patrons and is used for viewing live performances
or for presenting moving pictures or viewing publications by any
photographic, electronic, magnetic, digital or other means or medium
(including, but not limited to, film, video or magnetic tape, laser disc,
cd-rom, books, magazines or periodicals) for observation by patrons
therein. . . . A motion picture arcade booth shall not mean a theater,
moviehouse, playhouse or a room or enclosure or portion thereof which
is designed, constructed or used to seat more than ten persons.
Id. § 12-276(a). The appellants claim that the ordinance, as written, would apply to all
small media facilities, including those having no involvement in the dissemination of
sexual materials. They argue that the ordinance is therefore overbroad.
Under the First Amendment overbreadth doctrine, a statute may be challenged
on its face by "an individual whose own speech or expressive conduct may validly be
prohibited or sanctioned . . . because it also threatens others not before the court--those
who desire to engage in legally protected expression but who may refrain from doing
so rather than risk prosecution or undertake to have the law declared partially invalid."
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). The overbreadth
doctrine, however, is considered "strong medicine," and therefore invoked only when
the overbreadth is "substantial." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615
(1973).
The appellants would have us read the statute to include "all manner of small
media facilities." Appellants' Brief at 8. The definition set forth in the ordinance does
not, however, compel such a broad interpretation. The ordinance applies only to
booths, cubicles, stalls, or compartments that are used for viewing live performances,
for presenting moving pictures, or for viewing publications. See Ordinance § 12-
276(a). Further, these booths, cubicles, stalls, or compartments must be located within
a business. See id. § 12-275(b). The ordinance sufficiently directs its application to
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the type of motion picture arcade booths the City is attempting to regulate. We
therefore reject the appellants' overbreadth claim.
The appellants also contend that the ordinance is an unconstitutional time, place,
and manner restriction on protected speech. The ordinance states that "[e]ach motion
picture arcade booth shall have at least one side completely open to adjacent public
rooms or adjacent hallways and must be sufficiently illuminated," id. § 12-277(c)(2),
and that the open side "shall not have any curtain, door, wall, enclosure or visual
obstruction," id. § 12-277(c)(3). The appellants correctly point out that these
requirements regulate the manner in which one may engage in speech activities (i.e.,
viewing movies in motion picture arcade booths). The appellants acknowledge,
however, that time, place, and manner restrictions are constitutional on the condition
that the restrictions "are justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of the information."
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation to additional cases
omitted). The appellants' contention is that the ordinance is not narrowly tailored
because of the breadth of its application and that the ordinance is therefore
unconstitutional. But the appellants already have argued that the ordinance is
overbroad, and we already have decided that it is not.
We previously have held that similar open-booth ordinances are valid manner
restrictions on speech. See Doe v. City of Minneapolis, 898 F.2d 612, 620 (8th Cir.
1990); Postscript Enters. v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir. 1990). In
the present case, we conclude that the ordinance is content-neutral, that the ordinance
is narrowly tailored to serve a significant governmental interest, and that alternative
channels for communicating such materials are left open. We have no difficulty
deciding that the open-booth requirement in this case is a valid manner restriction. As
such, it does not violate the First Amendment.
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The appellants next take issue with the provisions in the ordinance that require
motion picture arcade booth establishments to post approved signs containing
information "describing the risks and methods of transmission of venereal diseases and
listing unsafe sexual activities," Ordinance § 12-277(d), and to make available to
patrons approved pamphlets "contain[ing] information on gonorrhea, syphilis and
AIDS," id. § 12-278. The appellants assert that the requirement compels speech and
thus violates the First Amendment. We disagree.
The First Amendment's guarantee of free speech "necessarily compris[es] the
decision of both what to say and what not to say." Riley v. National Fed'n of the Blind
of N.C., Inc., 487 U.S. 781, 797 (1988). But we have concluded that "First
Amendment protection against compelled speech . . . has been found only in the context
of governmental compulsion to disseminate a particular political or ideological
message." United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995). In this case, no
political or ideological message is implicated in providing information about sexually
transmitted diseases and unsafe sexual activities. We therefore hold that these
requirements do not violate the First Amendment.
A related contention challenges the requirement that the signs and pamphlets be
prepared or approved by the City's department of neighborhood and community
services. See Ordinance §§ 12-277(d) and 12-278. The appellants claim that these
provisions grant to officials too much discretion because no time limits for approval are
included. They argue that "[c]ity officials could withhold approval of the required signs
and pamphlets" and that "the ordinance can thus function as the equivalent of a license
revocation." Appellants' Brief at 26.
To support their position, the appellants cite cases requiring procedural
safeguards in the issuance of licenses to engage in speech activities. See Freedman v.
Maryland, 380 U.S. 51, 59 (1965) (holding that an application for a license to exhibit
a film must be granted or denied within a specified brief time period); Riley, 487 U.S.
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at 802 (holding that failure to provide time limitations within which licensor must issue
license to fundraiser is unconstitutional). The facts of this case, however, do not
present an analogous situation. Surely there are instances where the threat of revoking
a license and the delay in granting a license present serious constitutional issues. But
the ordinance in question does not give City officials the power to revoke the
appellants' licenses to operate upon noncompliance with the sign and pamphlet
requirements. So any delay inherent in the approval of the signs and pamphlets is
irrelevant.
The ordinance authorizes three methods of enforcement: administrative
enforcement, municipal court enforcement, and injunctive relief. See Ordinance § 12-
281. The administrative enforcement provision is the only method by which the City
unilaterally can order closure of the noncompliant portion of the establishment.4 See
id. § 12-281(a)(3). The ordinance provides, however, that administrative enforcement
can be utilized only for certain, specified violations of the ordinance, each of which
specifically relates to the structure and occupancy of the arcade booths.5 See id. § 12-
281(a)(1). The sign and pamphlet regulations thus cannot be enforced by the
administrative enforcement remedy of closure. The only remaining means of
enforcement is to initiate legal proceedings in municipal court or to apply for injunctive
4
Closure by administrative order can occur only after the City has served notice
and an order setting forth the violations. See Ordinance § 12-281(a)(1). The
establishment then has forty-eight hours from the time of service either to remedy the
violation or to request a hearing. See id. § 12-281(a)(3). A hearing request stays the
City's exercise of power to order closure until the hearing is concluded and a decision
has been issued. See id. § 12-281(a)(4).
5
The ordinance provides for administrative enforcement for "any violation of the
requirements or duties set out in this article requiring that at least one side of [the
booths be open], that the surface of [the walls between booths be metal and free of
holes], and that no more than one person occupy a booth at any one time." Ordinance
§ 12-281(a)(1).
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relief to the appropriate state court. We believe that these judicial enforcement
methods do not function as the equivalent of a license revocation. The constitutional
safeguard, which requires that final action on an application for a license to engage in
protected speech activities be taken within a specified time period, simply does not
apply in these circumstances.
The appellants next argue that the provision requiring booths "be maintained in
a clean and sanitary condition" is unconstitutionally vague. Id. § 12-277(a). We will
uphold this provision on a vagueness challenge unless persons "of common intelligence
must necessarily guess at its meaning." Hynes v. Mayor of Oradell, 425 U.S. 610, 620
(1976) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).
"[M]athematical certainty" cannot be expected, so we look to whether "it is clear what
the ordinance as a whole" requires. Grayned v. City of Rockford, 408 U.S. 104, 110
(1972). We conclude that a person of common intelligence would have no difficulty
in knowing how to comply with the requirement that motion picture arcade booths be
kept in a "clean and sanitary condition." Such booths are not surgical operating rooms,
nor are they even establishments where food or drink is served. The requirement at
most means only that the booths must be kept clean and free of trash and bodily fluids.
The maintenance of extraordinary standards of cleanliness is not required.
We turn to the appellants' final argument that the open-booth requirement set
forth in the ordinance violates Missouri's constitution. Under Missouri's constitution,
"private property shall not be taken or damaged for public use without just
compensation." Mo. Const. art 1, § 26. The appellants contend that the open-booth
requirement deprives them of a vested property right, thereby rendering the ordinance
unconstitutional under Missouri law.
To support their contention, the appellants rely primarily on Missouri cases
involving zoning ordinances. Hoffmann v. Kinealy, 389 S.W.2d 745 (Mo. 1965) (en
banc), exemplifies this line of cases. In Hoffmann, the Missouri Supreme Court held
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that a newly enacted zoning ordinance, which prohibited the open storage of lumber,
building materials, and construction equipment, constituted a taking under Missouri's
constitution. See id. at 754-55. The court recognized the validity of "pre-existing
lawful nonconforming uses," id. at 750, and concluded that termination of such pre-
existing, lawful, nonconforming uses was a taking, see id. at 754-55. Hoffmann
confirmed the rule, long assumed in Missouri, see id. 748-49, 750, that a pre-existing,
lawful, nonconforming use is a vested property right, which cannot be abrogated by a
newly enacted ordinance unless just compensation is paid to the landowner.
Missouri case law, however, restricts the application of the nonconforming-use
rule to cases involving zoning ordinances. The Missouri Court of Appeals has defined
nonconforming use as "a use of land which lawfully existed prior to the enactment of
a zoning ordinance and which is maintained after the effective date of the ordinance
even though not in compliance with use restrictions." Missouri Rock, Inc. v. Winholtz,
614 S.W.2d 734, 739 (Mo. Ct. App. 1981). Missouri courts expressly restrict the
nonconforming-use rule to apply to cases where zoning ordinances are at issue. See,
e.g., State ex rel. Nealy v. Cole, 442 S.W.2d 128, 131 (Mo. Ct. App. 1969) ("[A]
comprehensive zoning ordinance must permit the continuation of non-conforming uses
in existence at the time of the enactment of the ordinance . . . ."). Further, Missouri
courts have distinguished zoning ordinances from other types of municipal regulations.
See, e.g., Fleming v. Moore Bros. Realty Co., 251 S.W.2d 8, 15 (Mo. 1952) ("Zoning
regulations are distinct in character from building regulations . . . ."). Therefore, we
need not determine whether the appellants have established a lawful, nonconforming
use because the ordinance in question is not a zoning ordinance. Rather, it is a public
health and safety regulation and, as with most ordinances, reflects the City's exercise
of its general police powers.
Under Missouri law, municipal ordinances enacted pursuant to a city's general
police powers are reviewed for reasonableness. See Olympic Drive-In Theatre, Inc.
v. City of Pagedale, 441 S.W.2d 5, 10 (Mo. 1969). A presumption of reasonableness
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attaches to such ordinances, see Craig v. City of Macon, Missouri, 543 S.W.2d 772,
775 (Mo. 1976) (en banc), and the party challenging the ordinance has the burden to
show that the ordinance is unreasonable, see Easy Living Mobile Manor, Inc. v. Eureka
Fire Protection Dist., 513 S.W.2d 736, 738-39 (Mo. Ct. App. 1974).
In Olympic Drive-In, the Missouri Supreme Court struck down a municipal
ordinance as "unreasonable, oppressive and confiscatory." Olympic Drive-In, 441
S.W.2d at 10. The ordinance would have compelled a drive-in theater to relocate its
screen and construct a fence of adequate height so that movies would no longer be
visible from public streets. The drive-in theater would have been forced to spend
$250,000 to $280,000 to comply with the ordinance. This was twice the theater's initial
investment, and evidence showed that the theater could not raise that much capital.
Moreover, the court concluded that the required fencing or change of screen location
would not achieve the city's stated purpose for the ordinance, the alleviation of traffic
congestion. The court also looked to what it considered the real purpose of the
ordinance, "to satisfy the demands of the citizens that something be done about the
plaintiff showing pictures of nudes and semi-nudes which could be seen from the
streets," and concluded that the ordinance's requirements were too sweeping. Id. at 10.
The circumstances in the present case are far removed from those in Olympic Drive-In.
We hold that the ordinance in the case at hand is reasonable. The appellants
presented no evidence regarding the cost involved in removing the doors from the
booths and otherwise complying with the ordinance, and they likewise presented no
evidence to show the amount of any predicted loss of revenue that would result from
the removal of the doors. We also believe the ordinance is reasonably calculated to
curtail sexual activity inside the booths and the attendant spread of diseases, which is
the stated purpose of the ordinance. Finally, the requirements of the ordinance do not
infringe upon any fundamental rights. Not only are patrons still able to view inside the
booths whatever movies they choose, but they also may view the same movies at the
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appellants' establishments in a theater setting, and they may rent or purchase at the
appellants' establishments those same movies to view in the privacy of their homes.
In sum, we find no merit in any of the appellants' contentions. We therefore
affirm the decision of the District Court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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