Ogden City v. Eagle Books, Inc.

586 P.2d 436, 4 Media L. Rep. (BNA) 1861, 1978 Utah LEXIS 1444

• Court: Utah Supreme Court
• Decided: October 16, 1978
• Docket: 15596
• Status: Published

Opinions

HALL, Justice:

Plaintiffs (hereinafter referred to collectively as “Ogden City”) appeal from a summary judgment denying injunctive relief sought to prohibit defendant, Eagle Books, Inc. (hereinafter referred to as “Eagle Books”) from operating a bookstore without a license.

Eagle Books was formerly licensed by Ogden City to do business as a bookstore, however, said license was revoked following some 30 criminal convictions of distributing pornographic materials offensive to public decency.¹ Thereafter, Eagle Books continued to operate the bookstore without a license which precipitated these proceedings.

Eagle Books was successful in persuading the District Court that any enjoinder of its operation (although not properly licensed to do business) would constitute an unconstitutional “prior restraint” on the right of free speech.² We cannot agree and reverse the lower court’s ruling.

Ogden City has the authority to “license, tax and regulate the business conducted by merchants, wholesalers and retailers, shopkeepers and storekeepers . . . .”³ Pursuant to that authority, Ogden City enacted an ordinance⁴ which provides in part:

The City Council, upon notice and hearing as provided in this chapter, may revoke any license issued by the City upon the conviction of the licensee or any officer, employee or partner of the licensee of any violations of the Utah State Law as it now exists or may hereafter be amended, concerning ‘Pornographic and Harmful Materials and Performances’⁵ at the licensed premises.

Eagle Books chooses to ignore the authority of Ogden City to issue and revoke licenses. It also ignores the numerous license violations and the subsequent criminal convictions which resulted in the license revocation. Rather, it seizes upon the doctrine of “prior restraint" as a means of affording the right to operate without a license.

The doctrine of “prior restraint” has no application to the facts of this case. Ogden City has lawfully invoked the sanction of license revocation.⁶

Once a license has been properly revoked and a business nevertheless continues to operate, the usual remedy is a misdemeanor prosecution.⁷ What Ogden City seeks here is an injunction. Such an action lies, not only against these defendants, but against anyone else operating a business in Ogden City without a license.⁸

Reversed with instructions to grant the relief sought by Ogden City.

ELLETT, C. J., and CROCKETT, J., concur.

1 . Eagle Books makes no challenge to the propriety of said license revocation. For the treatment of that issue in a similar case also decided today see West Gallery Corporation v. Salt Lake City Board of Commissioners, Utah, 586 P.2d 429 (1978).

2 . First Amendment, Constitution of the United States; Article I, Sections 1 and 15, Constitution of Utah.

3 . U.C.A., 1953, 10-8-39.

4 . Title 7, Chapter 28, Ogden City Ordinances.

5 . Referring to U.C.A., 1953, 76-10-1202 to 1211.

6 . Supra, footnote 1.

7 . U.C.A, 1953, 76-8-410; See also Sec. 7-28-8, Ogden City Ordinances.

8 .For direction as to when injunctive relief is available in such a case see Rule 65A(e) U.R.C.P., and Nelson v. Smith, 107 Utah 382, 154 P.2d 634 (1944).