Opinion
Civil Action No. 3:03-CV-2039-K
December 17, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Application for a Preliminary Injunction filed by Plaintiff Incubus Investments, L.L.C. ("Incubus"). No response was filed by Defendant City of Garland ("Garland"). For the following reasons, the Court GRANTS the preliminary injunction. I. Factual Background
Incubus owns and operates a retail business at 3421 W. Kingsley Avenue, Unit 103, Garland, Texas. This store rents, sells, and permits on-site viewing of sexually oriented movies, as well as sells sexually oriented magazines, newspapers, books, and novelties. On June 5, 2003, Garland issued Incubus a Certificate of Occupancy. On August 1, Incubus started its business. On September 5, Garland served Incubus Notice, stating that Incubus's Certificate of Occupancy was denied. It directed Incubus "to cease all activity at [3421 W. Kingsley Avenue, Unit 103]" and threatened that all the utilities would be disconnected. Incubus was informed that the reason for Garland's actions was Garland Municipal Code ("Code"), Section 26.90-26.91, entitled "Pandering and Sexually Oriented Businesses." On September 9, Incubus filed this action against Garland for injunctive relief. Then, on September 15, Incubus filed its Application for Temporary Restraining Order, Order to Show Cause and Preliminary Injunction. On October 7, this Court issued an order setting an October 15 hearing on Incubus's application and further ordered that Garland "desist from taking any action against [Incubus] in an attempt to enforce" the ordinances at issue.
Incubus challenges the constitutionality of certain sections of Garland City Ordinance Number 4448 (referred to as the "Ordinance"). Section 26.91(A) of the Code makes it an offense for anyone to engage in pandering within the city. Garland, Tex., Ordinance 4448, § 1 (Sept. 18, 1990). Section 26.90(G) defines "pandering" as operating or causing to operate a sexually oriented business. Garland, Tex., Ordinance 4448, § 26.90(G) (Sept. 18, 1990). Section 26.90(N) defines "sexually oriented business" as an adult arcade, adult bookstore or adult video store, among other things, whose primary business is offering goods or services for the customer's sexual stimulation or sexual gratification. Garland, Tex., Ordinance 4448, § 26.90(N) (Sept. 18, 1990).
While the Ordinance does not define "primary business purpose," a Garland building official testified at the hearing that the test used to determine the "primary business purpose" is the percentage of sexually oriented business compared to non-sexually oriented business. Garland interprets the Ordinance to prohibit any business that is more than half, or 50%, sexually oriented. According to Garland, the percentage has been applied by looking at either the percentage of floor space or the percentage of sexually oriented titles versus non-sexually oriented titles of videos and books.
II. Preliminary Injunction
Incubus contends that a preliminary injunction is warranted in this case because the ordinance under which Garland proposes to shut down Incubus's retail store is unconstitutional in that it is a complete prohibition on constitutionally protected speech.
A. Standard of Review
A preliminary injunction is an equitable remedy granted in extraordinary cases if a movant establishes the following: (1) a substantial likelihood of success on the merits; (2) a substantial threat the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damages that the injunction might cause the non-moving party; and (4) that the injunction will not disserve the public interest. Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998). It is within the court's sound discretion as to granting or denying a preliminary-injunction. Mississippi Power Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). 1 Substantial Likelihood of Success on the Merits
Incubus has shown a substantial likelihood of success on the merits of its case challenging the constitutionality of Garland's ordinance prohibiting a business that's primary business purpose is sexually oriented.
Speech, whether film, video, or print, is protected by the First Amendment if it is sexually explicit in content, but not obscene. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 707 (5th Cir. 1994) (citing U.S. Sound Serv., Inc. v. Township of Brick, 126 F.3d 555, 558 (3rd Cir. 1997)). Noting that "[f]ew of us would march our sons and daughters off to war to preserve the citizen's right to see `Specified Sexual Activities' exhibited in the theaters of our choice," the Supreme Court recognized that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in "untrammeled political debate." Young v. American Mini Theatres, 427 U.S. 50, 70 (1976). However, the degree of protection the First Amendment affords pornography does not change merely because of the social value assigned to it by the courts. See Kev, Inc. v. Kitsap City, 793 F.2d 1053, 1058 (9th Cir. 1986) (citing Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)).
In attempting to balance a citizen's right to operate and/or patronize a sexually oriented business with a city's interest in achieving a satisfactory quality of life for its community, courts have upheld restrictions on sexually oriented businesses under certain circumstances. See, e.g., id. at 72-73; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 64-65 (1986). While the First Amendment does not compel the government to ensure that adult businesses will be "able to obtain sites at bargain prices," it does require that municipalities "refrain from effectively denying respondents a reasonable opportunity to open and operate an adult [business] within the city." Renton, 475 U.S. at 55.
Here, Incubus argues that the Ordinance is not an attempt to regulate or even disperse sexually oriented business within its city limits, but a complete ban on sexually oriented businesses in clear violation of the Constitution. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981) (zoning that prohibited all live entertainment, including nude dancing, unconstitutional because it constituted a complete ban on protected activity). Although the Garland did not file a written response to Incubus' application for a preliminary injunction, it argued at the hearing that its admittedly "novel" ordinance was a valid time, place, and manner restriction in that it relegated sexually oriented material to a secondary level in a business — Garland's attempt to "water down" the effects of adult material.
This Court disagrees that Garland's arguments pass constitutional muster. Because the Ordinance appears to be a total ban on sexually oriented businesses within the Garland City Limits, this Court does not review it as a valid time, place and manner restriction for purposes of the preliminary injunction. See Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 291 (5th Cir. 2003) (zoning regulations restricting location of sexually oriented businesses considered time, place, and manner regulations, unless constitutes complete ban of sexually oriented business in whole jurisdiction). Bruce Kahn, the owner of Incubus, testified, and representatives of Garland agreed, that under the Ordinance, a sexually oriented business cannot operate within the city of Garland, and there is no other sexually oriented business in Garland. The fact that the ordinance allows other types of businesses to carry a certain amount (but something less than 50%) of "adult" inventory does not change the fact that it completely outlaws any business whose primary business is offering sexually oriented materials from operating in the City of Garland. This case, therefore, appears to be controlled by Schad, in which a similar ordinance was held by the United States Supreme Court to be unconstitutional. Schad, 452 U.S. at 68 (zoning that prohibited all live entertainment, including nude dancing, unconstitutional because it constituted a complete ban on protected activity).
This Ordinance is unlike other ordinances regulating sexually oriented businesses which other courts have held to be constitutional as valid time, place, and manner regulations, because those ordinances were not complete bans on protected activity. Renton, 475 U.S. at 48-55 (zoning ordinance constitutional because not complete ban on adult theaters, just location restriction); N.W. Enterprises Inc. v. City of Houston, ___ F.3d ___, 2003 WL 22792244, at *10, (5th Cir. Nov. 25, 2003) (ordinance's increased distance restriction constitutional as well as requirement that entertainment rooms be free from obstacles, such as doors); Scope Pictures, of Missouri, Inc. v. City of Kansas City, 140 F.3d 1201, 1204 (8th Cir. 1998) (ordinance requiring no doors on motion picture arcade booths constitutional); Ben Rich Trading, Inc. v. City of Vineland, 126 F.3d 155, 160-66 (3rd Cir. 1997) (ordinance restricting hours of operation and prohibiting conversation booths in adult bookstores constitutional); Matney v. County of Kenosha, 86 F.3d 692, 696 (7th Cir. 1996) (county regulation requiring video booths in adult oriented businesses be open constitutional); Thames Enterprises, Inc. v. City of St. Louis, 851 F.2d 199, 201-202 (8th Cir. 1998) (zoning ordinance restricting location of sexually oriented businesses constitutional); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1080 (5th Cir. 1986) (ordinance's hours of operation restrictions constitutional).
The Court finds and concludes that Incubus has demonstrated a substantial likelihood that it will succeed on the merits in this action. To satisfy this element, Incubus need not prove its case with absolute certainty. See Lakedreams v. Taylor, 932 F.2d 1103, 1109 n. 11 (5th Cir. 1991) ("In a preliminary injunction context, the movant need not prove his case."). "A reasonable probability of success, not an overwhelming likelihood, is all that need be shown for preliminary injunctive relief." Casarez v. Val Verde County, 957 F. Supp. 847, 858 (W.D. Tex. 1997). Based on the evidence presented, Incubus has demonstrated a substantial likelihood of success on the merits of its claims.
2. Substantial Threat of Irreparable Injury
Incubus must also establish a substantial threat of irreparable injury if the injunction is not granted, and that granting the injunction will not disserve the public interest. These requirements are met here because Incubus has demonstrated a substantial likelihood that the Ordinance is unconstitutional. The loss of First Amendment rights, for even a minimal amount of time, constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373-74 (1976). Because the materials offered at Incubus's retail store are protected materials within the scope of the First Amendment, there is a presumption of irreparable injury if an injunction is not issued. Id.; see Fermnwood Books Video v. City of Jackson, 601 F. Supp. 1098, 1101 (S.D. Miss. 1984) (showing of interference with plaintiff selling materials protected by First Amendment sufficiently demonstrated irreparable injury so to grant preliminary injunction). Incubus has shown it would suffer irreparable injury.
3. Threatened Harm to Garland
Incubus has also established the harm it will suffer outweighs any harm to Garland. As discussed above, the closing of Incubus' business poses a great threat to it, while a temporary halt to enforcement of the ordinance presents little threat to Garland. It is unlikely that Garland's concerns over secondary effects of allowing Incubus to operate will be significantly realized in the time it will take for Garland to cure the defects in the Ordinance or for this case to proceed to trial or otherwise be resolved. See Hooters, Inc. v. City of Texarkana, Tex., 897 F. Supp. 946, 949 (E.D. Tex. 1995). This Court notes that Garland possesses the constitutional police power to enable it to regulate sexually oriented businesses in attempting to control secondary effects, while still guaranteeing its citizens their First Amendment rights. See id. 4. Public Interest
Finally, a preliminary injunction in this case will not disserve the public interest. Rather, it is in the public's interest to protect rights guaranteed under the Constitution. See id.
III. Bond
Having determined Incubus is entitled to a preliminary injunction, the Court must now decide the amount of an appropriate bond. See FED. R. ClV. P. 65(c). Pursuant to Rule 65(c), the Court dispenses with the requirement of security on the grounds that: (1) the probability of success on the merits favors exercising the Court's discretion to dispense with such security; (2) it appears unlikely that the defendant municipal corporation would incur any significant cost or damages as a result of the injunction; and (3) to require a bond would have a negative impact on Incubus's constitutional rights, as well as the constitutional rights of the members of the public.
IV. Conclusion
After reviewing the evidence submitted and the arguments by the parties, the Court finds Plaintiff has met the requirements entitling it to a preliminary injunction pending a trial on the merits.