Bamon Corp. v. City of Dayton

DECISION AND ENTRY GRANTING DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT (Doc. #5), CONSIDERED AS A MOTION FOR SUMMARY JUDGMENT; JUDGMENT TO BE ENTERED FOR DEFENDANTS AND AGAINST THE PLAINTIFF; TERMINATION ENTRY

This case is before the Court on Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (Doc. # 5). Since matters outside of the pleadings have been proffered by the parties and considered by the Court, said Motion will be considered as a motion for summary judgment. For the reasons set forth below, the Court sustains said Motion in its entirety and grants Summary Judgment in favor of the Defendants and against the Plaintiff in this case. The following discussion constitutes the Court’s findings of fact and conclusions of law.

On October 18, 1989, the City Commission of Dayton, Ohio, passed an ordinance (# 28028, enacting Sections 136.08-09 of the City’s Revised Code of General Ordinances) (hereinafter “the Ordinance”) regulating the design and occupancy of video booths located in “Amusement Arcades” and in which a “film or video viewing de *82 vice” is used to exhibit material depicting certain enumerated sexual acts and bodily functions. Section 136.08 of the Ordinance defines an “Amusement Arcade” as “any place of business [other than hotels or motels] in which a film or video viewing service or devices are located for the use of [sic] entertainment of a person or persons patronizing the place of business.” If the material depicted by “film or video viewing devices” within an amusement arcade depicts any of the enumerated subjects listed in Section 136.09(A), every video booth in which such material is shown must comply with the following requirements:

(1) Be visible from a well-illuminated continuous main aisle;

(2) Not be obscured by any curtain, door or other enclosure;

(3) All side or rear walls must be without holes or openings;

(4) Shall not be occupied by more than one patron at a time;

(5) Be illuminated by a light bulb of a wattage of no less than 25 watts.

Section 136.09(B). The Ordinance further provides that any “owner, operator, employee, or agent of an amusement arcade” who violates these requirements, and/or who allows or permits a violation thereof, and any patron who violates the one-patron-per booth requirement, is guilty of a first degree misdemeanor. 1

Plaintiff Bamon Corporation (“Plaintiff”) is an Ohio corporation which has been doing business as McCook Theatre at the same location in the City of Dayton for the past ten years. Doc. # 1 at 5. 2 Plaintiffs business, which consists of a theatre, boutique and “entertainment facility,” id. at 6, primarily involves the sale of “Adult” books and magazines, the sale and/or rental and exhibition of “Adult” films and videotapes, and the exhibition of “Adult” live entertainment. Id. at 4, 6. It is undisputed that the sexually explicit materials comprising Plaintiff’s stock in trade are not classified as legally obscene; they are, therefore, protected under the first amendment. Christy v. City of Ann Arbor, 824 F.2d 489, 492 (6th Cir.1987) (citing Young v. American Mini Theatres, 427 U.S. 50, 73 n. 1, 96 S.Ct. 2440, 2453, 49 L.Ed.2d 310 (1976) (Powell, J., concurring)). There are thirty-five viewing booths on Plaintiffs premises in which a pre-set movie may been seen for a fee of twenty-five cents, four booths in which a videotape rented for five dollars may be viewed, and thirteen booths in which may be viewed live nude and/or semi-nude entertainment by a performer separated from the viewer by a glass plate. Doc. # 1 at 6-7. All of the booths in Plaintiffs establishment are totally enclosed, having neither windows nor other “viewing portholes,” and have a full-length door which patrons may lock. Id. at 7.

The second reading of the Ordinance took place at a public meeting of the Dayton City Commission held on October 18, 1989. The Ordinance was passed by an unanimous vote of the Dayton City Commission at that meeting. During a telephone conference on December 6, 1989, the parties entered into a stipulation concerning the verified verbatim transcript of that portion of the proceedings devoted to the Ordinance, Doc. # 5, Defendants’ Exhibit A (“Transcript”). By entry dated December 27, 1989, to which neither party has raised an objection, the Court characterized this stipulation as meaning that the Transcript “represents the universe of information that was submitted to the City Commissioners, along with the wording of the Ordinance in question,” prior to the Commissioners’ vote to enact the ordinance. Doc. # 6 (emphasis added). 3

*83 Plaintiff filed the instant action on November 13, 1989, seeking an order of this Court declaring the Ordinance unconstitutional and permanently enjoining its enforcement. Doc. # 1 at 13. Defendants in this action are the City of Dayton; Richard Clay Dixon, Mayor of the City of Dayton; James Newby, Chief of Police of the City of Dayton; and the Dayton City Commissioners (“Defendants”). Plaintiff alleges that the Ordinance violates the first, fourth, ninth, and fourteenth amendments to the United States Constitution, as well as “corollary” provisions under the Ohio Constitution, that it is preempted by the federal Video Privacy Protection Act, 18 U.S.C. § 2710, and that its enactment violated Plaintiffs procedural due process rights. This Court issued a Temporary Restraining Order on January 16, 1990, the effective date of the Ordinance, enjoining the enforcement of the Ordinance by the City of Dayton until January 25, 1990, or the announcement of its decision and reasoning in support thereof, whichever event occurred first. Doc. # 13.

The Court, having before it both Plaintiffs verified Complaint and the verified copy of the Transcript of the proceedings before the Dayton City Commission that accompanies Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, Defendants’ Exhibit A, will treat Defendants’ Motion as a Motion for Summary Judgment. Therefore, as an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. On a motion for summary judgment, the moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corf. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).

A. First Amendment Claims

The core of Plaintiff’s first amendment claims is the allegation that the Ordinance is unconstitutional because it is supported by neither a “compelling” nor a “substantial” government interest. Doc. # 1 at HU 21, 31. Plaintiff alleges that the Ordinance is “unsupported by any relevant facts upon which the City of Dayton could reasonably rely to justify its enactment.” Id. at 11 21. As a result, Plaintiff alleges, the Ordinance violates Plaintiff’s right to exhibit, and Plaintiffs patrons’ right to view, 4 the films, video tapes and live enter *84 tainment available to customers in Plaintiff’s viewing booths. Id. at f 23.

The Court recognizes that enforcement of the Ordinance will impose an incidental burden on the forms of protected expression which comprise Plaintiffs stock in trade; but it is well settled that municipalities may impose reasonable time, place and manner restrictions upon protected expression, as long as the legislation imposing those restrictions is a) content-neutral; b) supported by and designed to serve a substantial government interest; and c) allows for reasonable alternative channels of communication. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). 5 See also United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The Dayton Ordinance does not ban the viewing of sexually explicit materials exhibited in viewing booths, nor does it restrict the availability of such materials. Therefore, it is properly analyzed as a time, place and manner regulation, Renton, 475 U.S. at 46, 106 S.Ct. at 928, as courts faced with constitutional challenges to “open-booth” ordinances have routinely held. Williams v. City of Columbus, No. 87-1440 (S.D. Ohio June 1, 1988) (Order denying motion for temporary restraining order and preliminary injunction), aff'd., 872 F.2d 1030 (6th Cir.1989). See also Berg v. Health and Hospital Corp., 865 F.2d 797, 802 (7th Cir.1989); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1168 (4th Cir.1986); Movie & Video World v. Board of County Commissioners, 723 F.Supp. 695, 698 (S.D.Fla.1989); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486, 490 (E.D.Tenn.1986). It remains for the Court to determine whether, as Defendants assert, Doc. # 5 at 2-6, Dayton’s Ordinance satisfies the Renton criteria.

1. Content neutrality

Plaintiff argues strenuously that the Ordinance is unconstitutional because its restrictions are based upon both the content of the entertainment offered within viewing booths and the impact of that content upon the viewer. Doc. # 7 at 8-9. The Court respectfully disagrees. Renton’s, content-neutrality analysis is controlling here. Dayton’s Ordinance is similar to the zoning ordinance at issue in Renton (which governed the location of “adult” movie the-atres only) in that it is directed only at those “amusement arcades” having video booths in which sexually explicit materials are exhibited. Under Renton, this differential treatment related to content does not preclude a determination that the Ordinance is content-neutral. Renton teaches that, as long as regulations “are justified without reference to the content of the regulated speech” they are, by definition, content neutral. Renton, 475 U.S. at 48, 106 S.Ct. at 928 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)) (emphasis by Renton Court). Under Ren-ton, regulations directed merely at the “secondary effects” associated with a particular category of speech meet this definition. The Renton Court distinguished between “restricting the message conveyed by a particular category of speech,” id., and regulating the effect that the businesses purveying that message have “upon *85 their surroundings.” Id. at 49 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 82 n. 6, 96 S.Ct. 2440, 2458, 49 L.Ed.2d 310 (1976) (Powell, J., concurring). Thus, “secondary effects” are regulatory targets (the subjects of regulation) wholly distinct from the direct impact of speech upon the listener. See Boos v. Barry, 485 U.S. 312, 319, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988) (interpreting Renton).

It is noteworthy that the Renton Court looked to the terms of the ordinance before it, to determine how the ordinance was justified and thus to determine whether the ordinance was content-based on the one hand, or content-neutral (because it targeted secondary effects) on the other. 475 U.S. at 48, 106 S.Ct. at 929 (“The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally ‘protec[t] and preserv[e] ... the quality of urban life,’ not to suppress the expression of unpopular views”) (emphasis added). This analysis prohibits inquiry into the motives of individual legislators. Id. at 48, 106 S.Ct. at 929 (citing United States v. O’Brien, 391 U.S. 367, 382-86, 88 S.Ct. 1673, 1681-84, 20 L.Ed.2d 672 (1968)). The Supreme Court recently reiterated that under Renton “regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech” are properly characterized as content-neutral, as long as the justifications for regulation have nothing to do with content. Boos v. Barry, 485 U.S. at 319, 108 S.Ct. at 1163 (emphasis added).

The Dayton Ordinance fits this definition. The Ordinance in terms targets “carnal sexual activity” ... “particularly between males” ... in “closed peep show booths in adult bookstores,” which activity, the City found, “contributes to the epidemic spread of sexually transmitted diseases, including AIDS.” See Preamble to the Ordinance, Appendix A. It is thus justified by public health concerns. It is directed at secondary effects and not at the suppression of speech and is, therefore, content-neutral. Accord Broadway Books, 642 F.Supp. at 490; Movie & Video World, 723 F.Supp. at 699-700; Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585, 589 (E.D.Wis.1988)

2. Substantial Government Interest

As noted above, the gravamen of Plaintiff’s first amendment claim is the contention that even if the Ordinance is content-neutral, Renton’s substantial government interest prong is not satisfied since there is no factual basis for the Ordinance’s enactment. Doc. # 1 at fl 21. 6 The determination whether the Ordinance is supported by a substantial government interest requires review of the “facts and data” relied upon by the Dayton City Commission in enacting it. Movie & Video World, 723 F.Supp. at *86 698. Plaintiff contends that under Renton the City of Dayton must prove the existence of a “problem” — -illicit sexual activity in the viewing booths of “adult” businesses — m Dayton “so as to warrant reliance upon the experiences of other municipalities.” Doc. # 7 at 13. Plaintiff also contends that the transcript of the Ordinance’s second reading shows that the Commission had no evidence of illicit activity occurring within the booths in Dayton’s adult businesses, id. at 14, 16, and that the Commission’s reliance upon the caselaw summarized by the City’s Law Director at the second reading was unreasonable, id. at 12-13, since Defendants have stipulated that they do not rely on the inference that any Commissioner read the cases provided. Doc. #6.

The Court disagrees with these contentions. Renton teaches that, in enacting regulations targeting the secondary effects of adult businesses, a city need not amass evidence independent of evidence either gathered by other cities or summarized in caselaw dealing with conditions existing in other locales. 475 U.S. at 51, 106 S.Ct. at 930. Plaintiff’s argument that Dayton cannot rely on other cities’ experience in the absence of factual proof of a comparable problem in Dayton was expressly rejected by the Renton Court as imposing on a city an “unnecessarily rigid burden of proof.” Id. at 50, 106 S.Ct. at 930. In point of fact, at the time the Renton ordinance was first proposed, no businesses falling within the ambit of the ordinance were located in the City of Renton; hence, there was no local “problem” in the City of Renton. Id. at 52, 106 S.Ct. at 931. 7

Under Renton, a city may rely on the experiences of other cities, and not conduct its own research into secondary effects, as long as whatever evidence the city relies upon is “reasonably believed to be relevant to the problem that the city addresses.” 475 U.S. at 51-52, 106 S.Ct. at 930-31. Having perused the Transcript of the second reading of Dayton’s Ordinance, the Court finds that the Dayton City Commission had such evidence before it when the Ordinance was passed. The problem the Ordinance is designed to address is “carnal sexual activity,” (principally homosexual activity) within enclosed viewing booths in adult businesses because of the effect such activity has upon the transmission of sexually transmitted diseases, including AIDS. See Preamble to the Ordinance, Appendix A. The City Commission was presented not only with evidence that this problem exists in other locales whose open-booth ordinances have been held constitutional; the Commission also heard evidence of the existence of this problem in Dayton’s adult businesses — more evidence, the Court would note, than the Renton City Council had about the City of Renton itself.

The Commission heard testimony from the City Law Director, Mr. Sawyer, who listed the decisions of courts in other jurisdictions, including Columbus, Ohio, that had upheld similar ordinances, and noted that there had been findings in these jurisdictions of sexual activity within enclosed booths in adult establishments. 8 Tran *87 script at 1-2. The Commission was assured that it could rely on these findings, that these ordinances had been routinely held to be content-neutral, and that the rationale for the Ordinance was the need to combat the spread of AIDS and other sexually transmitted diseases. Id. Mayor Dixon conveyed his understanding that there was evidence from other cities that sexual activity occurred within enclosed booths, and that the City was acting to prevent such activities from occurring in Dayton, for reasons of public health and safety. Id. at 2.

The Commission also heard testimony from a member of its Department of Police, Major Long, that City police had been told by male prostitutes of sexual activity occurring within the booths in Dayton “adult” bookstores and theatres, and had also received citizen complaints about homosexual activity in relation to these establishments. Id. at 2-3. The City’s Law Director testified that semen had been found on the walls of viewing booths in adult businesses in Columbus, Ohio, and said that “that per se obviously presents a health risk.” Id. at 3. The Commission then heard testimony from three private persons. First, Plaintiffs counsel argued that the City’s Law Director had misconstrued the cases he cited to the Commission and urged the Commission to conduct more research into local conditions before enacting the Ordinance. Id. at 3-4. Second, Mr. Greg Noble testified that he had personally reconnoitered booths in three “adult” bookstores in Dayton and found the “stench of semen” and “semen marks” everywhere within the booths, id. at 5, thus corroborating Major Long’s testimony. Finally, Mr. Steve Koob, representing the Montgomery County chapter of the American Family Association, spoke in favor of the Ordinance’s passage, noting that (in his opinion) patrons of booths in Dayton’s adult businesses are no different from patrons of booths in Columbus, where (in his understanding) special equipment had been used by investigators to document the presence of semen in the booths. Id. at 6. All of the above information submitted to the City Commission, but particularly the City Law Director’s report on the Columbus, Ohio, study and Major Long’s testimony (as corroborated by that of Greg Noble), is such as could reasonably be believed to be relevant to the problem to be addressed by the Ordinance.

Moreover, Plaintiff’s assertion, Doc. #7 at 14, 16, that the Commission had before it no evidence of sexual activity within booths in Dayton’s adult businesses is simply not accurate. The Court disagrees with Plaintiff’s characterization of Major Long’s testimony as only concerning sexual activity occurring “in and around ” adult bookstores and giving rise only to a “very limited implication” regarding sexual activity within the booths. Plaintiff’s Trial Memorandum, Doc. # 11, at 5. When viewed in the context of the City Law Director’s remarks introducing Major Long, Transcript at 2, the latter’s statement that male prostitutes have told police that they make their contacts outside the adult bookstore or movie theatres and “go inside and performed [sic] the acts in there” is fairly read as a reference to the booths. Id. at 3 (emphasis added).

As noted previously, the parties to this litigation have not objected to this Court’s characterization of their stipulation as meaning that the Transcript “represents the universe of information that was submitted to the City Commissioners, along with the wording of the ordinance in question,” prior to the vote to enact same. Doc. # 6 (emphasis added). The Transcript does not, however, necessarily represent the extent of the Commissioners’ own awareness of the national problem of AIDS and sexually transmitted diseases in general, and about the association of anonymous sexual *88 activity in adult businesses with the spread of AIDS in particular. Legislative notice of such matters may be deemed to extend as widely as does judicial notice thereof. Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1169 n. 7 (4th Cir.1986).

There is no longer the need, as there arguably was less than a decade ago, for expert testimony as to the correlation between the sexual activity occurring in situations targeted by the Dayton Ordinance and the spread of sexually transmitted diseases, particularly AIDS. That such a correlation exists is no longer open to doubt and is a matter of common knowledge. It is entirely proper (as did the Court in Wall Distributors, a pre-Renton case, in approving a city’s reliance upon other cities’ experiences) to evaluate the strength of the City’s interest “not solely on the basis ... of what had already demonstrably occurred within [a city’s] geographical borders, but of what [the City] might reasonably foresee in light of a sufficiently documented wider national experience properly reflected in matters of public record.” Id. (applying United States v. O’Brien’s “substantial government interest” prong and upholding “open booth” provision of ordinance). Finally, it must be noted that courts ruling upon the constitutionality of “open booth” ordinances have repeatedly held “substantial” a city’s interest in curtailing conduct constituting a threat to public health because it facilitates the spread of AIDS and/or other sexually transmitted diseases. See, e.g., Broadway Books, Inc., 642 F.Supp. at 491; Movie & Video World, 723 F.Supp. at 699; Wall Distributors, 782 F.2d at 1169. 9

*89 3. Narrowness

(requirement that the ordinance be designed to serve a substantial government interest)

Renton requires that a valid time, place and manner regulation be “designed to serve” a substantial government interest. 475 U.S. at 50, 106 S.Ct. at 930. The Renton Court mentioned that the ordinance before it had been “narrowly tailored,” id., but did not elaborate upon the precise test to be applied to its “narrowness requirement.” The Supreme Court has recently clarified the appropriate standard in Ward v. Rock Against Racism, — U.S. -, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 reh’g den., — U.S. -, 110 S.Ct. 23, 106 L.Ed.2d 636 (1989). A least-restrictive means analysis is not required. Rather, under Ward, “[s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest ... the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” 109 S.Ct. at 2758.

Plaintiff argues that the Ordinance fails to satisfy the Ward standard, because merely removing the bottom two feet from the doors of the viewing booths would “clearly fulfill” the City’s purpose of precluding illicit sexual activity in the booths. Doc. # 7 at 12. That idea would deal with the no-more-than one-person-per-booth problem; however, since masturbation is one of the types of illicit sexual activity which the Ordinance expressly targets, see Preamble to Ordinance, Appendix A, the requirement that the booth doors be removed entirely is not “broader than necessary”, Ward, 109 S.Ct. at 2758, to achieve that aspect of the City’s interest.

4. Alternative channels of communication

Finally, Renton requires that a time, place and manner regulation, allow for “reasonable alternative avenues of communication.” 475 U.S. at 50, 106 S.Ct. at 930. The Court finds that this requirement is easily satisfied by the Dayton Ordinance, which neither limits the number of viewing booths in which sexually explicit materials may be viewed, nor purports in any way to ban the viewing of such materials either in the booths or elsewhere. In short, not only are reasonable alternative channels of communication allowed for, but the option of viewing such materials in booths also remains available under the Ordinance, thereby complying with Renton. Movie & Video World, 723 F.Supp. at 701.

The Ordinance is a valid time, place and manner restriction which is a) supported by a substantial government interest, b) is not substantially broader than necessary to effectuate that interest, and c) allows for ample alternative means of expressing protected speech. The Court therefore holds that Defendants are entitled to judgment as a matter of law on Plaintiff’s first amendment claim. 10

*90 B. Privacy Right Claim

At several places in the Complaint, Plaintiff asserts that the Ordinance violates the rights of its patrons to view constitutionally protected material in private. See, e.g., Doc. # 1 at ¶¶ 23-25, 30. Plaintiff argues that its viewing booths, as currently constructed, are “private places” in which Plaintiffs patrons’ “privacy right” is to be protected. Id. at H 28. The origin of this right to privacy within the booths is, according to the Complaint, grounded both in the United States Constitution and in federal law. Id. at fl 30.

It is unclear whether Plaintiff has standing to assert his patrons’ privacy rights. The Court is willing to assume such standing, arguendo, in order to reach the merits of Plaintiff’s privacy claim; however, the Court has found, and Plaintiff has cited, no caselaw supporting Plaintiff’s proposition that its patrons have an inherent right to view sexually explicit, non-obscene material in the privacy of an enclosed video booth located in a public business establishment. 11 Plaintiff’s assertion to the contrary notwithstanding, Trial Memorandum at 28 n. 12, neither the Supreme Court’s decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (holding that the viewing of obscene materials in one’s home is constitutionally protected), nor its decision in Paris Adult The-atre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (holding that there is no privacy right to view obscene movies in places of public accommodation), supports Plaintiff’s proposition. It is insufficient simply to distinguish these decisions on the ground that they involve the right to view obscene materials. Indeed, the broader language of Paris Adult Theatre, distinguishing Stanley, is most persuasive and relevant herein:

[I]t is unavailing to compare a theater, open to the public for a fee, with the private home of [Stanley ].... This Court has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are “private” for the purpose of civil rights litigation and civil rights statutes.

413 U.S. at 65, 93 S.Ct. at 2639 (citations omitted). Given this language, and the fact that the right of privacy has not been extended to public businesses, the Court declines to broaden that right to include a right to view non-obscene movies or live entertainment in an enclosed booth in Plaintiff’s place of business. Accord Doe v. City of Minneapolis, 693 F.Supp. 774, 782-83 (D.Minn.1988) (upholding ordinance requiring removal of booth doors in adult b