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Berg v. Health and Hospital Corp.

decided: January 20, 1989.


Appeal from United States District Court for the Southern District of Indiana, Indianapolis Division. No. 86 C 442 -- S. Hugh Dillin, Judge.

Bauer, Chief Judge, Kanne and Manion, Circuit Judges.

Author: Manion

MANION, Circuit Judge.

Plaintiffs*fn1 filed suit seeking a judgment declaring unconstitutional the "open booth" ordinance enacted by The Health and Hospital Corporation of Marion County, Indiana (HHC). On cross-motions for summary judgment, the district court upheld the ordinance. Berg v. Health and Hospital Corporation of Marion County, 667 F. Supp. 639 (S.D. Ind. 1987). We affirm.


HHC is an independent governmental body created pursuant to Ind. Code § 16-12-21-1 et seq. It is governed by a board of trustees and is responsible for protecting, promoting, and improving public health. The Board of Trustees (Board) is empowered to enact ordinances to promote public health in Marion County, Indiana. To combat the spread of acquired immune deficiency syndrome (AIDS) in Marion County, HHC's Board of Trustees adopted General Ordinance No. 5-1985(A) (open booth ordinance) in February 1986. The ordinance is designed to eliminate structures which promote anonymous sexual activity and hence to curtail such activity, in the hope that this will help prevent or slow the spread of AIDS.

At a public hearing regarding the ordinance, HHC heard testimony from several persons who viewed the ordinance as a positive step toward containing the spread of AIDS.*fn2 At the hearing, a professor of microbiology and immunology at the Indiana University School of Medicine, the State Health Commissioner for the Indiana State Board of Health, and the acting chief of HHC's Bureau of Disease Prevention/Health Promotion all testified in favor of the ordinance. Among other things, they testified concerning the fatal nature of AIDS, the rapid increase in the number of persons afflicted with the disease both nationwide and in Marion County, and the great risk of persons becoming infected with the disease by engaging in high-risk sexual activity*fn3 with multiple partners.

Indiana's State Health Commissioner, Dr. Woodrow A. Myers, Jr., also testified before the Board and explained that the State Board of Health's statewide AIDS prevention plan had recommended to each local health officer that, among other things, they identify those businesses or establishments operated wholly or in part to provide opportunities for high-risk sexual behavior and to eliminate the dangers these establishments presented to their communities. Dr. Myers further testified that because high-risk sexual activity was thought to be the primary factor in the transmission of AIDS, those establishments where such high-risk sexual activity occurred were places where the likelihood of the disease's transmission was at its highest.

HHC also heard testimony from an officer of the Indianapolis Police Department, Lieutenant Rogers. Rogers was assigned to the police department's sex offenses branch and, before that, to the vice branch. Rogers informed the Board that high-risk sexual activity regularly occurred in certain Marion County establishments. In some places, booths are available where patrons may watch entertainment behind closed doors. Typically, the booths have apertures which allow participants on either side of the wall to engage in sexual activity with one another. According to Rogers, hundreds of arrests have been made in such places over the last few years, usually for public indecency. Undercover police officers have reported observing sexual activity occurring in these areas. Rogers concluded that the booths facilitated anonymous sexual activity.

This appeal involves those parts of the ordinance designed to curtail anonymous high-risk sexual activities and, thus, the spread of AIDS, by regulating the design and structure of commercial premises. Section 19-309, for example, provides that no commercial building shall be designed for or used to promote high-risk sexual conduct. Section 19-311 establishes minimum standards for the design and maintenance of commercial buildings. Section 19-311(a) prohibits partitions in buildings which have apertures designed to encourage sexual activity between persons on either side of the partition. Section 19-311(b) provides that "booths, stalls, or partitioned portions of a room, or individual rooms, used for the viewing of motion pictures or other forms of entertainment" are required to have "at least one side open to an adjacent public room so that the area inside is visible to persons in the adjacent public room." Section 19-311(c) provides that no commercial buildings or structures shall be constructed so that private rooms or accommodations can be offered to customers if the building is in violation of § 19-309 and is not a validly operating hotel, motel, apartment complex or condominium. Section 19-310 provides that "the health officer shall be guided" by regulations adopted by HHC's Board and "by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services which relate to the spread of infectious diseases . . . ." (The ordinance's relevant provisions are set forth in Appendix A.)

The Board subsequently adopted several health officer regulations to help administer and enforce § 19-311(b). These regulations limit the applicability of the "open booth" provisions to enclosures offered to the public for a fee "as part of a business operated on the premises which offers as part of its business the entertainment to be viewed within the enclosure . . . ." Section 19-311(b)(1). The regulations also excluded private offices used by the owners and employees of the business. The regulations further define the terms "doors, curtains or portal partitions" and the term "open to an adjacent public room" as those terms are used in § 19-311(b). (These regulations are set forth in Appendix B.)

In March 1986, HHC cited PFW, Inc. (PFW) for violating § 19-311(a) and (b). PFW, joined by Stanley Berg and Stanley Berg Investments, Inc., which describes itself as a business offering its customers "private relaxation and entertainment" rooms, filed suit seeking a declaratory judgment and an injunction against the enforcement of the ordinance. The district court permitted Draix, Inc., Annex Adult Books, Inc., Shadeland Avenue Adult Bookstore, and Keystone Avenue Adult Books to intervene in the action as plaintiffs. All of the intervenors are Marion County businesses that were notified by HHC that they were in violation of the "open booth" provisions of § 19-311(b). They alleged that they would buy, make available or otherwise deal with constitutionally protected materials in Marion County. The intervenors further alleged that the ordinance will prevent them from doing so in the future.

Berg moved for summary judgment, contending that the ordinance violated his rights under the First Amendment. Although broadly contending that §§ 19-101.1, 19-309, 19-310, 19-311(b) and (c), and the regulations governing 19-311(b), violated the First Amendment, Berg declared that the "gravamen" of his complaint was the "open booth" provision of § 19-311(b). Berg argued that § 19-311(b) was an unconstitutional prior restraint on expressive activities in violation of the First Amendment. Alternatively, he argued that, if the ordinance did not constitute a prior restraint, it nevertheless was not a reasonable time, place, and manner restriction. Berg further argued that the ordinance was unconstitutionally overbroad and vague. HHC filed a cross-motion for summary judgment, seeking to have the ordinance declared constitutional.

The district court rejected Berg's claims and upheld the ordinance as a valid time, place, and manner restriction. The court further rejected Berg's overbreadth and vagueness arguments. Berg appeals the district court's grant of summary judgment in favor of HHC.


A. Prior Restraint

As in the district court, Berg's appeal focuses on the "open booth" provision of § 19-311(b). He first argues that the district court erred in holding the "open booth" ordinance was not a prior restraint of speech prohibited by the First Amendment. According to Berg, the "open booth" provision constitutes a prior restraint because it "effectively bans" the showing of movies or other forms of entertainment in a commercial building with a door where the public is charged a fee for access, because it substantially restricts the availability of constitutionally protected material, and because the ordinance purports to give HHC the authority to close businesses who fail to comply with § 19-311(b).

The ordinance manifestly is not a prior restraint. "Governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated." United States v. Kaun, 827 F.2d 1144, 1150 (7th Cir. 1987) (quoting In re G. & A. Books, Inc., 770 F.2d 288, 296 (2d Cir. 1985), cert. denied, sub nom. M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015, 89 L. Ed. 2d 310, 106 S. Ct. 1195 (1986)). The Supreme Court has struck down regulations as unconstitutional prior restraints on speech where "public officials [have] the power to deny use of a forum in advance of actual expression." See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975). The Marion County ordinance simply does not ban the viewing of any forms of entertainment or grant officials the discretion to suppress any speech based upon its content. Berg is in no way restrained in his ability to sell books, movies, or other forms of entertainment so long as he complies with the ordinance. As the district court noted, "the ordinance does not ban the viewing of films or other entertainment, but merely regulates the environment in which the viewing ...

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