Opinion
Case No. A00-248 CV (JWS), [Motions at Docket 48 49].
September 15, 2004
ORDER FROM CHAMBERS
I. MOTIONS PRESENTED
At docket 48, defendants Municipality of Anchorage and Lejane Ferguson move for summary judgment. Plaintiff Ace's, Inc. cross-moves for summary judgment at docket 49. Plaintiff Ha Kim has joined in Ace's motion. Both motions have been fully briefed. Oral argument has not been requested on either motion, and oral argument would not assist the court.
II. BACKGROUND
Plaintiffs operate several adult-oriented businesses within the Municipality of Anchorage which sell sexually explicit videos, magazines, novelties, and other items. Some of the businesses also show adult-oriented videos on premises. Anchorage Municipal Code ("AMC") § 10.40.050 establishes a licensing scheme for "adult-orientated establishments." The licensing provisions in general are not at issue in this lawsuit. Rather, the remaining dispute between plaintiffs and defendants relates to restrictions on signs displayed by adult-oriented businesses found in one subsection of the ordinance, AMC § 10.40.050(J)(5). That subsection regulates the number, type, and size of exterior signs that adult-orientated establishments may display. These restrictions apply only to adult-orientated businesses and are in addition to other sign regulations applicable to all businesses operating in the Municipality. It is undisputed that plaintiffs' business locations all display signs which violate AMC § 10.40.050(J)(5).
AMC § 10.40.050(J)(5) is titled: "Signage, in addition to the requirements of title 21."
The Anchorage Assembly passed the ordinance establishing a licensing scheme for adult-oriented businesses, which includes the sign restrictions in dispute, based in part on its determination that adult-oriented businesses are a peculiar source of concern to the community:
WHEREAS, the Assembly believes that adult businesses have been shown by studies in other communities to produce secondary impacts on surrounding land uses. The impacts include a decline in property values, and increase in the level of criminal activity including prostitution, rape, and assaults in the vicinity of these types of enterprises, and the degradation of the community standard of morality by including a loss of sensitivity to the adverse effect of pornography upon children, upon established family relations, and upon respect for marital relationships;
Anchorage Assembly Ordinance No. 94-145(S) (August 23, 1994), Exh. G to doc. 48.
Plaintiffs filed suit on August 18, 2000, alleging, inter alia, that AMC § 10.40.050 violated their constitutional rights. On April 7, 2003, the parties entered a stipulation which resolved all but one issue, the constitutionality of AMC § 10.40.050(J)(5). Jurisdiction arises under 28 U.S.C. § 1332.
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if there is no genuine dispute as to material facts and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of showing that there is no genuine dispute as to material fact. The moving party need not present evidence; it need only point out the lack of any genuine dispute as to material fact. Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial. All evidence presented by the non-movant must be believed for purposes of summary judgment, and all justifiable inferences must be drawn in favor of the non-movant. However, the nonmoving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Id. 477 U.S. at 323-325.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
Id. at 255.
Id. at 248-9.
IV. DISCUSSION
A premise essential to defendants' argument for summary judgment is the proposition that AMC § 10.40.050 establishes a content-neutral regulation and so should be reviewed pursuant to the standard articulated in City of Renton v. Playtime Theaters, Inc. Defendants rely on the fact that the ordinance does not target the content of signs, but, rather, addresses the size, number, and place of their display. Conversely, plaintiffs' motion for summary judgment depends on the proposition that the ordinance is a content based restriction on speech.Renton addressed a constitutional challenge to a zoning ordinance which applied to one sector of the adult-oriented business sector, adult motion picture theaters. The ordinance did not ban adult-orientated theaters altogether, but established strict zoning guidelines requiring a 1,000 foot separation between such theaters and residential zone, church, park, or school. Although it is impossible as a matter of logic to escape the conclusion that the businesses subject to the separation requirement in Renton could only be identified with reference to the nature of the speech on display within, the Supreme Court found that the ordinance was not directed at the content of the materials available at the adult theaters. Rather, the ordinance targeted the secondary effects of such businesses on the surrounding community. In a recent case, City of Los Angeles v. Alameda Books, Inc., Justice O'Connor has neatly explained the jurisprudence of Renton:
First, we found that the ordinance did not ban adult theaters altogether, but merely required that they be distanced from certain sensitive locations. The ordinance was properly analyzed, therefore, as a time, place, and manner regulation. We next considered whether the ordinance was content neutral or content based. If the regulation were content based, it would be considered presumptively invalid and subject to strict scrutiny. We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely at crime rates, property values, and the quality of the city's neighborhoods. Therefore, the ordinance was deemed content neutral. Finally, given this finding, we stated that the ordinance would be upheld so long as the City of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. We concluded that Renton had met this burden, and we upheld its ordinance.
___ U.S. ___, 122 S.Ct. 1728 (2002) (opinion announcing judgment of court and joined by four Justices).
122 S.Ct. at 1733-34 (2002).
This court is, of course, obligated to apply the teaching of Renton. Here, the sign restriction is part of a broad scheme enacted by the Assembly to allay the undesirable secondary effects thought to be associated with adult-oriented businesses. While the sign restriction is different from the 1,000 foot separation requirement imposed on adult theaters addressed in Renton, the restriction does not restrict the content of what may be said, but rather restricts the size and location of signs. Thus, Renton dictates that the sign restriction be analyzed as one which is content neutral. It follows that plaintiffs' motion for summary judgment must be denied.
However, even though Renton provides the analytical framework, it does not necessarily follow that defendants are entitled to summary judgment. Even a content neutral restriction on speech is prohibited unless it is "designed to serve a substantial government interest and that reasonable alternative avenues of communication are available." Commenting on Renton, Justice Kennedy has written: "If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of the speech substantially undiminished, there is no First Amendment violation. This is so even if the measure identifies the problem outside by reference to the speech inside — that is even if the measure is in that sense content based."
Id. at 1734.
Alameda at 122 S.CT. 1739 (opinion concurring in judgment by Kennedy, J.)
Here, the record is inadequate to support the two additional findings necessary to award defendants summary judgment. There is essentially nothing in the record which supports the conclusion that sign restrictions advance the interest in dampening secondary effects of adult businesses. Indeed, too substantial a restriction on signs for such businesses easily could, as plaintiffs suggest, be counterproductive. For example, they could result in children entering adult-oriented business by mistake. In other words, while the Assembly is free to draw on the experiences and studies in other communities to impose zoning restrictions of various sorts on adult businesses, defendants have pointed to no study or other evidence that supports the conclusion that making it harder to identify what businesses are adult-oriented is reasonably related to the goal of reducing secondary effects.
Secondly, there is no way to ascertain on the record before this court whether the sign restrictions have left sufficient accessibility to the speech spoken in plaintiffs' businesses to satisfy the Renton test. If the sign restrictions substantially impair the ability of people to find the fora in which a certain sort of speech may be heard, the requirement for reasonable access has not been met.
V. CONCLUSION
For the reasons stated above, the motions for summary judgment at dockets 48 and 49 are each DENIED.
The parties shall confer and then on or before February 6, 2004, they shall certify whether discovery has been completed so that the case is ready to be set for trial. If discovery has not been completed, the parties shall advise the court of the earliest date by which discovery may be completed.