Genusa v. City of Peoria

475 F. Supp. 1199, 1979 U.S. Dist. LEXIS 12451
CourtDistrict Court, C.D. Illinois
DecidedMay 11, 1979
DocketP-CIV-79-1045
StatusPublished
Cited by10 cases

This text of 475 F. Supp. 1199 (Genusa v. City of Peoria) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Genusa v. City of Peoria, 475 F. Supp. 1199, 1979 U.S. Dist. LEXIS 12451 (C.D. Ill. 1979).

Opinion

ORDER

ACKERMAN, District Judge.

Plaintiffs, owners and employees of several adult book stores in the City of Peoria, have filed this action seeking declaratory and injunctive relief based on the alleged unconstitutionality of an ordinance commonly known as the Peoria Adult Use Ordinance. On March 9, 1979, I entered a temporary restraining order preventing arrest of any of the named plaintiffs based on the licensing portions of the Adult Use Ordinance pending hearing on the motion for preliminary injunction. The parties have submitted legal memoranda and orally argued the motion for preliminary injunction at a hearing on March 22, 1979. No evidence was introduced at the hearing. The parties have represented that there are no facts in dispute and that the essential legal issues are presently before this Court.

The ordinance in question purports to regulate certain “Adult Businesses” which “because of their very nature are recognized as having serious, objectional, operational characteristics.” In response to this problem the City has attempted to prevent the concentration of adult businesses and restrict their location. 1 The ordinance es *1202 tablishes zoning restrictions (§ 4-45) and requires licenses for the adult businesses (§ 4-47) and permits for each individual employee who works in an adult business (§ 4-53). There is no question raised that the individual and business plaintiffs fall within the ordinance’s definition of Adult Book Stores or are employees of Adult Book Stores.

The attacks raised by plaintiffs in this case are directed only to the constitutionality of the zoning and licensing provisions of the Adult Use Ordinance which regulate the owners and employees of adult book stores. None of the other provisions of the ordinance are at issue and this opinion is not dispositive of the legality of the ordinance as it affects any of the other adult businesses.

A preliminary issue which must be considered is whether plaintiffs have standing to challenge the constitutionality of the Adult Use Ordinance. As stated in Wright, Miller and Cooper, Federal Practice and Procedure § 3531, at 176:

Standing requirements have been developed and maintained both as doctrines of constitutional limitation, drawn from the “case or controversy” definition of the federal judicial power in Article III, and as discretionary ’ doctrines aimed at prudently managing judicial review of the legality of public acts.

The Article III limitation requires that a litigant establish “injury in fact” resulting from the challenged activity. Where the statute may constitutionally be applied to an individual or is inapplicable to him, the plaintiff will not ordinarily be heard to challenge the statute on the ground that it may conceivably be applied unconstitutionally to others. However, an exception has been carved out in the area of the First Amendment.

The Supreme Court has altered its traditional rules of standing to permit, in the First Amendment area, attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. “Litigants, therefore, are permitted to challenge the statute not because their own rights of free expression are violated, but because of the judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadriek v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). See also Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). In order to have standing an individual must present more than allegations of a subjective “chill”. There must be a “claim of specific objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972).

It appears that several of the business plaintiffs have applied for and received an Adult Use License and defendant contends that the remaining employee plaintiffs would be eligible for an Adult Use Employee Permit if they would apply. Defendant also points out that since the business plaintiffs were apparently in existence prior to the ordinance’s effective date, the zoning provisions will not apply to them while they remain in their present location (§ 4-45). There has been no evidence to reveal any actions taken by the City against any of the plaintiffs regarding either the zoning or licensing requirements.

Plaintiffs here, unlike those in Laird, are presently and prospectively subject to the regulations that they are challenging. In the First Amendment area the ability to restrict one’s communicative freedoms in order to comply with an allegedly vague and overbroad ordinance cannot serve as a barrier to prevent judicial review of the constitutionality of the ordinance. Given the possible restrictions and sanctions available under the ordinance and the serious economic interests which may be involved, plaintiffs have at least claimed sufficient “injury in fact” to sustain their right to challenge.

The plaintiffs have ably presented and developed certain legal attacks. There *1203 must be no doubt that the regulation of book stores and employees thereof, as opposed to regulation of some of the other adult businesses under the ordinance, may to some degree infringe upon First Amendment constitutional rights. The question becomes whether the infringement arises to a constitutionally impermissible level.

Turning to the specific challenges to the ordinance, they can be categorized into attacks on the zoning provisions applicable to the businesses and separate attacks on the licensing provisions applicable to the businesses and the permit provisions applicable to the individuals.

A starting point in any analysis of the Peoria ordinance must be the United States Supreme Court’s opinion in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). In American Mini Theatres there were three principal attacks on a Detroit ordinance nearly identical to portions of the Peoria ordinance. Two adult motion picture theatres sought injunctive and declaratory relief contending: (1) the ordinances were so vague that they violated the Due Process Clause of the Fourteenth Amendment; (2) that they were invalid under the First Amendment as prior restraints on protected communication; and (3) that the classification of theatres on the basis of the content of their exhibitions violated the Equal Protection Clause of the Fourteenth Amendment.

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Bluebook (online)
475 F. Supp. 1199, 1979 U.S. Dist. LEXIS 12451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genusa-v-city-of-peoria-ilcd-1979.