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Genusa v. City of Peoria

decided: April 25, 1980.

FRANK GENUSA, ET AL., PLAINTIFF-APPELLANTS, CROSS-APPELLEES,
v.
CITY OF PEORIA, ET AL., DEFENDANT-APPELLEES, CROSS-APPELLANTS .



Appeal from the United District Court for the Southern District of Illinois, Peoria Division. No. 79-C-1045 - J. Waldo Ackerman, Judge.

Before Tone, Wood and Cudahy, Circuit Judges.

Author: Tone

The question in this case is whether a recently enacted "adult use" ordinance of the City of Peoria, Illinois,*fn1 places restrictions on the operation of adult bookstores that cannot be squared with the First Amendment as made applicable to the states by the Fourteenth Amendment. The Peoria ordinance, which is modeled in part on an ordinance of the City of Detroit that was held constitutional in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976), places numerous zoning, licensing, and employee permit restrictions on the operation of adult bookstores and other adult entertainment establishments in Peoria.*fn2 Plaintiffs, who are owners of and employees in what are conceded to be "adult bookstores" within the meaning of the ordinance, challenge the ordinance only insofar as it seeks to regulate the operation of adult bookstores.*fn3 Accordingly, no issue is presented concerning the constitutionality of the ordinance as it applies to other types of adult use establishments.

I. Procedural History

Shortly after the filing of plaintiffs' verified complaint attacking the constitutionality of the ordinance, the court issued a temporary restraining order against enforcement of the ordinance and set plaintiffs' motion for preliminary injunction for early hearing. Both sides filed briefs and argued orally at the hearing, but no evidence was offered on either side. During the hearing the parties agreed that no facts were in dispute. The court therefore proceeded, without objection from the parties, to decide the case on the merits.

In their verified complaint, plaintiffs allege that the purpose of the ordinance was to eliminate the stores of the owner plaintiffs and other adult bookstores in Peoria because of the content of the books they sold, and that the ordinance "is having the desired effect." Given that the books in question have never been held obscene and are therefore entitled to First Amendment protection, admitting these allegations would amount to confessing judgment. Yet the defendants filed no answer and thus left the allegations technically admitted. The allegations have not been treated by the parties as admitted, however, either in the proceedings before the district court or in the briefs filed before us. The district court did not treat them as admitted. Under these circumstances, neither do we.

The court entered an order declaring portions of the ordinance dealing with adult bookstore licensing and employee permit requirements unconstitutional but upholding the validity of the zoning provisions in the ordinance. 475 F. Supp. 1199 (C.D.Ill.1979). A final judgment was entered enjoining enforcement of the offending parts of the ordinance. Plaintiffs have appealed from the judgment insofar as it upholds portions of the ordinance; defendants have cross-appealed from the judgment insofar as it invalidates portions of the ordinance.

II. Facts

The facts of record are as follows: There are at least three adult bookstores in Peoria, all of which were in operation at their present locations at the time the ordinance was adopted.*fn4 One is across the street from the federal courthouse. Two are on the other side of town. There is no evidence as to the proximity of these bookstores to one another, whether Peoria contains other adult use entertainment establishments, or, if so, where they are. Some plaintiffs have sought and obtained either licenses or permits under the ordinance, but at least one owner-plaintiff has not sought a license, and at least several employee-plaintiffs have not sought employee permits. Finally, defense counsel conceded in oral argument before this court that Peoria does not require that bookstores other than adult bookstores be licensed.

The ordinance contains the following preamble:

WHEREAS, adult book stores, cabarets, body shops, massage parlors and adult motion picture theaters, because of their very nature, are recognized as having serious, objectional (sic), operational characteristics, particularly when several of them are concentrated in certain areas thereby having a deleterious effect upon adjacent areas; and

WHEREAS, it is necessary that these businesses be regulated in such a manner as to prevent this concentration and the continued erosion of the character of the affected neighborhoods; and

WHEREAS, the City of Peoria desires to protect the youth of its community from objectional (sic) operational characteristics of such businesses by restricting their close proximity to places of worship, schools and residential areas;

NOW, THEREFORE, BE IT ORDAINED . . ..*fn5

III. Standing to Sue

Because plaintiffs attack a number of diverse provisions of the ordinance,*fn6 their standing to sue must be evaluated with respect to each specific challenge. Accordingly, standing is addressed in the discussion of each challenged provision.

IV. Definitional Provisions

Plaintiffs first attack the definition of "adult bookstore" in the ordinance on the ground that it is vague and overbroad.*fn7 Under Young v. American Mini Theatres, Inc., supra, 427 U.S. at 58-61, 96 S. Ct. at 2446, 2447, plaintiffs have no standing to litigate this issue.

As we earlier noted, plaintiffs acknowledged that their bookstores are within the scope of the definition of "adult bookstore" found in the ordinance. The definition is thus sufficiently precise to leave plaintiffs in no doubt about whether their actions are covered. Because of the importance of First Amendment rights, however, litigants seeking to assert such rights are sometimes granted standing to challenge vague or overbroad laws even though they themselves are not in doubt as to whether their conduct is covered and are not engaged in conduct that could not properly be made the object of the restriction the law seeks to impose.*fn8 This doctrine of standing to assert vicariously the First Amendment interests of others is not, however, without limits. As in every case, plaintiffs must have a direct stake in the outcome in order to satisfy Article III case or controversy requirements. In addition, Young makes plain that the doctrine of vicarious standing will not apply if the provision challenged is "readily subject to a narrowing construction by the state courts" and is not so vague or overbroad that there exists a "real and substantial" possibility that its "very existence . . . may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression." Young v. American Mini Theatres, Inc., supra, 427 U.S. at 60-61, 96 S. Ct. at 2447; see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S. Ct. 2268, 2276, 45 L. Ed. 2d 125 (1975); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2917, 37 L. Ed. 2d 830 (1973). We believe the definition in question is "readily subject to a narrowing construction." See Young v. American Mini Theatres, Inc., supra, 427 U.S. at 61, 96 S. Ct. at 2447.*fn9 The issue of whether the definition may have a "real and substantial" impact on the exercise of protected rights of expression was also settled by Young, in which similar definitions were held to pose no such threat.*fn10 Under Young, plaintiffs lack standing to attack the definition on either vagueness or overbreadth grounds.

V. Zoning Provisions

Plaintiffs next attack the zoning provisions in the ordinance on the ground that they constitute an invalid prior restraint on speech. The provisions in question require that an adult use, including an adult bookstore, shall not be located within 500 feet of an existing adult use; within 700 feet of any district zoned for low, medium, or high density residential use; within 500 feet of any pre-existing school or place of worship; or in a building containing an establishment that in any manner sells or dispenses alcoholic beverages.*fn11 Distances are to be measured,

in a straight line, without regard to intervening structures or objects, from the property line of the adult use, to the nearest property line of another adult use, school, place of worship or district zoned for residential use.*fn12

We first address the issue of plaintiffs' standing to attack these provisions. As an initial matter, plaintiffs are not subject to these restrictions, because, under the grandfather clause of the ordinance,*fn13 the bookstores which they own or in which they are employed may continue in their current locations so long as they are not converted into some other type of adult use. Plaintiff owners do not allege that they desire to move the location of their bookstores, to open new bookstores, or to convert their bookstores into some other form of adult use. The inapplicability of the zoning provisions to plaintiffs' bookstores does not, however, deprive plaintiffs of any personal stake in the outcome of a challenge to their validity. As is discussed in Part VI-A of this opinion, infra, plaintiff owners also contest, and have standing to contest, the validity of the ordinance's licensing requirement.*fn14 As we conclude in Part VI-A, the validity of the license requirement turns on the validity of the zoning provisions. If the licensing requirement is valid, the owners are required to obtain a license, for which they must pay a $100 license fee. They therefore have the requisite personal stake in the outcome of a challenge to the zoning provisions to meet standing requirements under Article III.

Although plaintiffs urge that the zoning provisions are unconstitutional as a whole, we need not reach the validity of all of them in order to decide whether the licensing requirement has been imposed in accordance with a valid zoning scheme. The portion of the zoning provisions that requires that adult uses be separated from one another by a distance of at least 500 feet is constitutional under the reasoning advanced in Young v. American Mini Theatres, Inc., supra.*fn15 Even though here, unlike in Young,*fn16 the city has not demonstrated a past history of congregated adult uses causing neighborhood deterioration, we agree with the district court that a city need not await deterioration in order to act. A legislative body is entitled to rely on the experience and findings of other legislative bodies as a basis for action. There is no reason to believe that the effect of congregated adult uses in Peoria is likely to be different than the effect of such congregations in Detroit. The Peoria City Council found, in the preamble to the ordinance, that congregated adult uses cause "deleterious effects," and the Supreme Court in Young found that such effects were sufficient to justify a zoning requirement that adult uses not be located in close proximity to one another.*fn17 That ruling is controlling here.

The validity of the requirement that adult uses be separated by 500 feet is enough to support the licensing provisions sustained in Part VI-A, infra. It is thus unnecessary, for purposes of considering the validity of the licensing provisions, to decide whether other zoning restrictions are valid. We hold that plaintiffs lack standing to challenge these other restrictions. The part of the district court's judgment that sustains them is vacated, and plaintiffs' claim with respect to these restrictions is dismissed.*fn18

VI. Licensing Provisions

A. The Simple License ...


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