Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Genusa v. City of Peoria


decided: April 25, 1980.


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;


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 Requirement

The Peoria ordinance makes it unlawful for anyone to operate an adult bookstore in Peoria without first obtaining a license.*fn19 To obtain a license, the applicant must pay a $100 fee and satisfy many other conditions as well. Plaintiffs contend, first, that the requirement of a license is in itself an invalid prior restraint under the First Amendment, and, second, that various conditions imposed are invalid. Because the license requirement is applicable to the adult bookstores of the owner plaintiffs, standing requirements are satisfied.

We have held in Part V of this opinion, supra, that the zoning provisions that relate to separation of adult uses are constitutional. Therefore, under Young v. American Mini Theatres, Inc., supra, 427 U.S. at 62-63, 96 S. Ct. at 2448, the requirement of a license is also constitutional. It is rationally related to the goal of "inverse," or scatter zoning of adult uses; it provides both a method for authorities to enforce scatter zoning and a means of assuring those who seek to open a new adult use of the legality of the proposed site. The procedural delay that the licensing provision occasions is limited by the terms of the ordinance and is not argued to be excessive in relation to its end.*fn20

Plaintiffs argue, however, that Young dealt only with a requirement of a license for adult movie theaters; they contend that, while a license may sometimes properly be required of a movie theater, bookstores may never be subjected to such a requirement. Some support can be found in opinions of the Supreme Court for the proposition that, under the First Amendment, state regulation of movie theaters may go further than state regulation of bookstores.*fn21 It may be, thus, that the licensing of a bookstore is inherently more suspect than is the licensing of a movie theater. The reasoning that underlies Young, however, is that cities may use zoning to break up congregations of adult uses that would otherwise cause urban blight.*fn22 Young acknowledges that the zoning power cannot be used as a tool to suppress or restrict speech,*fn23 but nothing in the opinions in Young indicates that the zoning of bookstores should be viewed as more restrictive than the zoning of movie theaters. Moreover, nothing in the record of this case or in common experience would warrant this court in concluding that adult bookstores contribute less than other forms of adult use to the injurious neighborhood effects that may stem from a congregation of adult uses. The decline in property values and the general deterioration of a neighborhood that flows from such a congregation would seem to follow equally from congregations that contain adult bookstores, adult movie theaters, or other adult uses that bear little or no relationship to First Amendment concerns. Given this, and given also the fact that the distinction between print and film media is, for First Amendment purposes, not large,*fn24 we think bookstores are subject to the same rule that governs movie theaters as to the issue in dispute. We therefore find that the license requirement is not rendered unconstitutional by its coverage of bookstores as well as movie theaters and other adult uses. Accordingly, we affirm the judgment of the district court that the requirement that an adult bookstore obtain a license is valid.

B. The $100 License Fee Requirement

The Peoria ordinance requires that an applicant for an adult bookstore license pay a $100 fee.*fn25 If, as we have held, the license requirement is valid, a fee in some amount is permissible to cover the cost of regulation. Plaintiffs have not argued that, assuming the validity of the licensing requirement, the fee is excessive. Accordingly, we do not rule on whether it is.

C. Inspection Requirements

The Peoria ordinance requires that before an adult bookstore license may issue, the Fire, City Planning, and Inspections Departments must inspect the proposed premises to ascertain whether they are in compliance with all applicable provisions of the city code of Peoria.*fn26 The owner plaintiffs have standing to sue because they are directly affected by the inspection requirement. They contend that the requirement is an unconstitutional prior restraint on speech and an impermissible discrimination against speech on the basis of its content.

As we earlier noted, defendants conceded that Peoria imposes no licensing requirement on any bookstore except an adult bookstore. Similarly, this special inspection requirement is imposed only on adult bookstores and other adult uses; no ordinary bookstore is subject to it. Defense counsel told us in oral argument that Peoria has certain general building permit and inspection requirements that apply to all business establishments, but that an ordinary bookstore that seeks to open or to continue in existence in Peoria need not under city law be either inspected or licensed first. The inspection requirements are, therefore, prior restraints on speech that have as their operative distinction the content of the books sold in the bookstore. Bookstores with one type of books must be inspected before a license issues; bookstores with another type of books need not be licensed or inspected.

Defense counsel argued that the purpose of these special adult bookstore inspections was to insure that urban blight is retarded by requiring that adult bookstores, at least, comply with city law. He further argued that among the "deleterious effects" on neighborhoods referred to in the preamble to the ordinance were those that might result from building code violations such as faulty light switches. Aside from our doubt that the preamble is subject to such an interpretation, there is nothing in the record to indicate that adult bookstores, as a class, contain more faulty light switches or other violations than regular bookstores, as a class. We can hardly take judicial notice that such is the case.

Peoria has, thus, failed to demonstrate that the special inspection provisions further a legitimate interest "unrelated to the suppression of free expression."*fn27 Adult bookstores are of course subject to the same lawful health and safety regulations of the city code that are applicable to other business establishments in Peoria. Adult bookstores may not, however, be singled out for special regulation unless the city can demonstrate that such action is narrowly devised to further a substantial and legitimate state interest unrelated to censorship or the suppression of protected expression.*fn28 The city has come forward with no such justification for the inspection procedures, and they are consequently invalid.

D. Investigation Requirement

The ordinance also requires that the Police Department make a special investigation into the background of those who apply for an adult bookstore license.*fn29 Plaintiff owners are subject to and have standing to challenge this provision. The purpose of this special investigation, the city informs us, is to assure that those with past records of certain types of misconduct are discovered and forbidden to operate adult bookstores.*fn30 The investigation is therefore simply a device to further provisions of the ordinance that we find unconstitutional in Part VI-F of this opinion, infra. Because the city has offered no justification for the investigation other than the furtherance of an unconstitutional end, and because the investigation would thus invade plaintiffs' privacy for no legitimate purpose, the investigation requirement violates the First and Fourteenth Amendments.

E. Application Information Disclosure Requirements

1. Applicant Disclosure Requirements

The ordinance requires that an applicant for an adult use license provide the following information under oath:

(a) Name and address, including all aliases.

(b) Written proof that the individual is at least eighteen (18) years of age.

(c) All residential addresses for the past three (3) years.

(d) The applicant's height, weight, color of eyes and hair.

(e) The business, occupation or employment of the applicant for three (3) years immediately preceding the date of the application.

(f) The adult use or similar business license history of the applicant; whether such person, in previously operating in this or any other city or state under license, has had such license revoked or suspended, the reason therefore (sic), and the business activity or occupation subject to such action of suspension or revocation.

(g) All criminal or city ordinance violation convictions, forfeiture of bond and pleadings of nolo contendere on all charges, except minor traffic violations.

(h) Fingerprints and photograph of the applicant.

(i) The exact nature of the adult use to be conducted and the proposed place of business and facilities thereto.

(j) The names and addresses of all persons holding any beneficial interest in the real estate upon which such adult use is to be operated, including but not limited to, contract purchasers or sellers, beneficiaries of land trust or lessees subletting to applicant.

(k) If the premises are leased or being purchased under contract, a copy of such lease or contract shall accompany the application.

(l) A statement by the applicant that he or she is familiar with the provisions of this Article and is in compliance with them.*fn31

At least one plaintiff will be directly affected by a ruling on the validity of these disclosure requirements, and standing to attack them is therefore present.

Plaintiffs contend that these provisions are unconstitutional prior restraints on speech and invasions of privacy. They fall into two groups. In the first group are those contained in subsections (a), (b), (i), and (l). We do not understand plaintiffs to contest the validity of subsection (b). The others, except for the required disclosure of all aliases in (a), are legitimately related to the state interest that underlies the zoning provisions that force a separation of adult uses and are therefore valid under our decision in Part V of this opinion, supra. The alias disclosure requirement involves an invasion of privacy not justified by the zoning interest and is not otherwise justified. It is therefore invalid.

The second group of disclosure requirements includes subsections (c) through (h), (j), and (k). The city has argued that these provisions, like the investigation provision, are directed toward the goal of keeping anyone convicted of certain past wrongs from operating or having any interest in an adult use. For the reasons stated in Part VI-F of this opinion, infra, these provisions cannot be sustained as furthering the state interest shown by this record. Because they invade plaintiffs' privacy without any legitimate justification, they are prohibited by the First and Fourteenth Amendments.

2. Disclosure Requirements for Others Who Have an Interest in an Adult Bookstore

The ordinance requires that information of the same kind required of an applicant for an adult bookstore license must also be provided by "any partner or limited partner of the partnership applicant," "any officer or director of the corporate applicant," "any stockholder holding more than ten (10) percent of the stock of a corporate applicant," and "any other person who is interested directly in the ownership or operation of the business."*fn32 Plaintiffs argue that these requirements are invalid as prior restraints and invasions of the First Amendment right of associational privacy.

We must first address plaintiffs' standing. There are no plaintiffs who allege facts that would place them in the categories of partners, limited partners, or "any other person" who has an interest in an adult bookstore. We are, therefore, without jurisdiction to entertain challenges to these provisions. Portions of the district court's judgment upholding or invalidating these provisions are vacated, and the allegations as to these provisions are dismissed for want of a justiciable case or controversy.

There are, however, a corporate plaintiff and a corporate officer plaintiff who have standing to challenge the disclosure requirements that apply to officers, directors, and stockholders of a corporate applicant. We have not been advised whether the plaintiff owner that has sought and obtained a license is the corporate plaintiff. If it is, its officers, directors, and stockholders holding over ten percent of its stock have already disclosed the information required under the ordinance. Nevertheless, the license will have to be renewed, and the owners, directors, and officers may change, so we believe the corporate plaintiff at least has a sufficient personal stake in the outcome of a challenge to the validity of these disclosure requirements to support standing.

The limited information that will be pertinent to enforcement of the scatter zoning provisions will be provided to the city by the application of the corporation itself. There would seem to be no purpose other than harassment in requiring the individual officers, directors, and stockholders to file separate statements or applications under oath. Requiring them to do so is an unjustified prior restraint and an invasion of privacy.*fn33 Accordingly, the disclosure requirements as to officers, directors, and stockholders of corporate applicants are invalid.

F. Standards for License Issuance

The Peoria ordinance provides that a license shall issue to an applicant unless:

(a) (T)he applicant is under (the) age of eighteen (18) years or under any legal disability.

(b) The applicant is a person who is not of good moral character and reputation in the community in which he or she resides.

(c) The applicant has been convicted of any of the following offenses, unless upon investigation the City Manager finds that such convictions occurred at least four (4) years prior to the date of the application, that the applicant has had no subsequent convictions and has shown evidence of rehabilitation sufficient to warrant the public trust:

(1) A felony under federal laws or the laws of this or any other state,

(2) Prostitution, soliciting for a prostitute, pandering, keeping a place of prostitution, patronizing a prostitute, pimping, obscenity, selling harmful material or having a tie in the sale of obscene publications to distributors, under the laws of this state or equivalent laws or ordinances of the United States or any other state or city, or any other crime or misdemeanor opposed to decency and morality.

(d) The applicant has held an interest in a license either under this Article, Article X of Chapter 16 of the Code of the City of Peoria, which regulates massage establishments, or Chapter 3 of the Code of the City of Peoria which regulates alcoholic liquor and (said license) has been revoked for cause.

(e) The applicant, at the time of application for renewal of any license issued under this Article, would not be eligible for such license upon a first application.

(f) The operation as proposed by the applicant, if permitted, would not have complied with all applicable laws, including but not limited to building, health, planning, housing, zoning and fire codes of the City of Peoria.*fn34

We do not understand plaintiffs to challenge the validity of subsection (a). Plaintiffs have standing to contest the validity of subsection (b). Counsel for defendants virtually conceded in oral argument before this court that this subsection is invalid, and we hold it to be so because it gives city authorities an overbroad discretion to impose a prior restraint on protected speech.*fn35 The district court's judgment in this regard is affirmed.

Plaintiffs are subject to and have standing to attack subsections (e) and (f). Subsection (e) is constitutional to the extent that the licensing provisions of the ordinance are found to be so, because it merely states that a license shall be renewed according to the same standards under which a license may be issued. Subsection (f), we think, is subject to the same objection as the special inspection requirements we held invalid in Part VI-C of this opinion, supra. Only adult bookstores are subject to the licensing requirement, so other bookstores are not subject to this prior restraint on their operations. Peoria must enforce its building, health, safety, and fire codes in an evenhanded manner and cannot selectively enforce them against a bookstore because of the content of the books that it sells.*fn36 For the reasons stated in Part VI-C, supra, we hold the compliance requirement unconstitutional insofar as it relates to matters other than compliance with the zoning provisions of the adult use ordinance.

Plaintiff owners are sufficiently affected by subsections (c) and (d) to have a personal stake in the outcome of an attack on their validity, even absent allegations that licenses would be denied to any plaintiff owner because of the provisions. Among other things, subsections (c) and (d) would make it more difficult for the owners to sell their interests in their adult bookstores, would present a continuing threat of loss of license in the event of future conviction of one of the specified offenses, and would subject the owners to the investigative and information disclosure requirements earlier discussed in Parts VI-D and VI-E-1 of this opinion, supra. Plaintiffs therefore have Article III standing.

We also believe that, as a discretionary matter, plaintiffs have standing to attack the provisions in subsections (c) and (d). The provisions present a real and substantial threat of chilling protected speech by persons convicted of certain past crimes or wrongs. Accordingly, plaintiffs may assert the interests of persons not now before the court in their attack on the validity of these provisions.*fn37

The provisions in question may be summarized as follows: anyone convicted during the preceding four years of any felony, any prostitution-related offense, any obscenity-related offense, or any offense "opposed to decency and morality" cannot operate an adult bookstore in Peoria; anyone who has ever possessed a Peoria massage parlor or liquor license that has been revoked for cause is also forbidden to operate an adult bookstore in Peoria. The provisions thus totally prohibit certain classes of persons from selling in Peoria books that are protected by the First Amendment.

The freedom to operate a bookstore is unquestionably protected by the First Amendment. Preservation of freedom of expression requires protection of the means of disseminating expression. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938); see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64-65 n.6, 83 S. Ct. 631, 636 n.6, 9 L. Ed. 2d 584 (1963); see also Times Film Corp. v. City of Chicago, 365 U.S. 43, 56 n.3, 81 S. Ct. 391, 398 n.6, 5 L. Ed. 2d 403 (1961) (Warren, C. J., dissenting); cf. Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 22, 63 L. Ed. 1173 (1919) (Holmes, J., joined by Brandeis, J., dissenting). We do not understand the city to contend otherwise.

As previously noted, the only record support for the city's position that it has a substantial and legitimate interest in denying those convicted of the specified crimes or offenses the freedom to operate an adult bookstore is found in the preamble to the ordinance. That document recites an interest in protecting minors and city neighborhoods from the "deleterious effects" of adult bookstores and other adult uses, which are said to result particularly when adult uses are congregated.*fn38 The provisions in question have nothing to do with the scatter zoning purpose of the ordinance and cannot be supported by reference to that purpose.

Counsel for Peoria has argued that one of the deleterious effects caused by adult uses is an increase in crime, that those who have committed past crimes or offenses are more likely to commit them again, and that the prohibitions of the ordinance will, by keeping the past offender and the adult use separate, cause a decrease in crime and ordinance violations. Nothing in the preamble or elsewhere in the slender record supports these contentions, and they are not the sort of which we may take judicial notice. We find nothing in Young v. American Mini Theatres, Inc., supra, to support counsel's argument.*fn39 Thus, even if we were to assume that proper proof of counsel's contentions would legitimize the broad prior restraint on First Amendment freedoms that the ordinance seeks to impose,*fn40 defendants have failed to produce such proof. The city is required, at the very least, to demonstrate the existence of a substantial and legitimate state interest that is unrelated to the suppression of free expression and that cannot be effectuated by means that impact less drastically on protected freedoms.*fn41 No element of the required showing has been made. We affirm the judgment of the district court holding subsections (c) and (d) invalid as unconstitutional prior restraints on speech.

G. License Revocation Provisions

The provisions governing suspension or revocation of an adult bookstore license are reproduced in the margin.*fn42 Because of our holding in Part VI-F, supra, we hold that plaintiffs have standing to contest subsections (b) and (d) and further hold them both unconstitutional as prior restraints on speech. Subsection (a), which allows revocation if the licensee has violated other provisions of the ordinance, is constitutional to the extent that other provisions of the ordinance are constitutional. Subsection (c), which allows revocation if the applicant furnishes or permits to be furnished any false information on a license application form or an employee permit form is directly applicable to plaintiffs. Standing to contest its validity is present. We find the provision constitutional, but we note that it must be enforced in conformity with our holdings in Parts VI-E, supra, and VII, infra, concerning information disclosure and employee permit requirements. The parties have not specifically addressed the remaining provisions, and we see no problem with them if they are enforced in conformity with this opinion.

VII. Employee Permit Requirement

The ordinance requires that before being employed in an adult bookstore a person must obtain an employee permit. Provisions governing the permit requirement are reproduced in the margin.*fn43 The employee plaintiffs are directly affected by these provisions and, under principles stated elsewhere in this opinion, have standing to contest their validity. The district court held the permit provisions unconstitutional in their entirety. We affirm that holding on the ground that they are prior restraints on speech that are unrelated to any legitimate interest asserted by the city and supported by the record. The applicable principles are stated in Part VI-E-1 and Part VI-F of this opinion, supra.

VIII. Miscellaneous Provisions

The ordinance requires the prominent display of an adult use license and the availability during business hours of employee permits and employee identification cards that are to be issued by the Peoria police department.*fn44 For the reasons given in Part VII of this opinion, supra, the provisions relating to employee permits and identification cards are unconstitutional. The license display requirement has no discernible impact on protected freedoms and is not totally irrational. We uphold it.

The ordinance requires that the licensee must ensure that his employees have obtained an adult bookstore employment permit.*fn45 In accordance with our holding in Part VII of this opinion, supra, we hold this provision invalid.

The ordinance requires that no licensee or person associated with a licensee shall permit anything to occur on licensed premises that is in any manner unlawful.*fn46 On the assumption that Peoria does not mean by this provision to enlarge the licensee's vicarious criminal liability beyond traditional bounds, we see no problem with the provision. As we construe it, it is merely a legal redundancy.

The ordinance provides that the police shall inspect each licensed business not less than twice a year to determine compliance with the ordinance.*fn47 Licensees are required to submit to these inspections. For the reasons stated in Parts VI-C and VI-F of this opinion, we hold this singling out of adult bookstores for special regulation to be impermissible. The record shows no basis for this special inspection requirement.

IX. Conclusion

For convenient reference, we include in the margin a listing by section number of our rulings on the constitutionality of the various provisions.*fn48 It is our understanding that the parties do not dispute the validity of provisions in the ordinance not directly addressed in this opinion. It is to be again noted that this opinion deals with the constitutionality of the ordinance as it applies to adult bookstores. We have before us no issue concerning the validity of the ordinance as it may be applied to other adult uses.

Affirmed In Part, Reversed In Part, And Vacated In Part.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.