City of Paducah v. Investment Entertainment, Inc.

WELLFORD, Circuit Judge,

concurring.

The City of Paducah originally sought to enforce the ordinance in question against Beltline News and Arcade Club (Beltline) and against the other defendant, Investment Entertainment, Inc. (Investment), in state court. The action against the latter was successfully removed by Investment to federal district court, but the other is pending against Beltline in state court. The defense of abstention was presented by the City in its answer to Investment’s complaint and amended complaint in the district court. This is the kind of factual situation in which abstention may be appropriate because the ordinance’s scheme contemplates a full state court hearing before revocation of defendants’ operating licenses and privileges becomes effective. State *471 courts are fully competent to hear and to consider the constitutional challenges, federal and state, here made to the procedures involved in the disputed ordinance. The state court, of course, may first test the ordinance and its procedure under standards of the Kentucky Constitution; accordingly, it might avoid the necessity of a decision on the federal Constitution in a complex and difficult area.

Reflected among the concerns which have traditionally counseled a federal court to stay its hand are the desirability of avoiding unseemly conflict between the two sovereignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions.

Martin v. Creasy, 360 U.S. 219, 224 , 79 S.Ct. 1034, 1037 , 3 L.Ed.2d 1186 (1959).

In Martin , the Court noted that the Pennsylvania law challenged as unconstitutional had not yet been construed by state courts, and there was “no reason to suppose that the Commonwealth of Pennsylvania will not accord full constitutional scope_” Id. at 225 , 79 S.Ct. at 1037 . This case would have been an appropriate vehicle for abstention since the district court might have awaited a decision of the state court in Beltline before deciding the sensitive federal constitutional issue in Investment. However, because the City did not actively pursue the abstention issue before this court and has apparently not urged the state court promptly to render a decision in Beltline, this issue has been waived, although initially suggested by the City in its answer to the federal action. See Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 479-80 , 97 S.Ct. 1898, 1903-04 , 52 L.Ed.2d 513 (1977).

The difficulty in this area of the law is well expressed in the various viewpoints of the Justices set out in Vance v. Universal Amusement Co., 445 U.S. 308, 320 , 100 S.Ct. 1156, 1163 , 63 L.Ed.2d 413 (1980). Perhaps the Supreme Court will determine whether an abatement or revocation of the kind contemplated in the Paducah ordinance will pass constitutional muster in deciding the case now pending before it for disposition, People ex rel. Arcara v. Cloud Books, Inc., 119 Misc.2d 505 , 465 N.Y.S.2d 633 , later proceeding, 96 A.D.2d 751 , 465 N.Y.S.2d 699 (1983), aff'd, 101 A.D.2d 163 , 475 N.Y.S.2d 173 (1984), certified question answered and modified, 65 N.Y.2d 324 , 491 N.Y.S.2d 307 , 480 N.E.2d 1089 , cert. granted, — U.S. -, 106 S.Ct. 379 , 88 L.Ed.2d 333 (1985).

I emphasize, on the merits of this case, as found by Judge Merritt, that the procedural safeguards of the Paducah ordinance appear to be adequate solely in respect of the allegedly obscene materials because there is no prior restraint involved with regard to any claimed first amendment freedom of expression until after a judicial determination has been made on obscenity. It is the future effect of revocation of an operating license, the remedy that is provided, that is especially troublesome in this case.

We have recently stated with respect to a city ordinance dealing with an effort to control what was deemed to be potential obscene conduct in licensed clubs through revocation of an occupational license:

We hold further that the ordinance does not constitute an impermissible pri- or restraint upon either present or future restricted expression. The appellants’ argument that their zoning status would be altered if their occupational licenses were revoked does not constitute a reason to invalidate the ordinance as a prior restraint. In this case, prescreening discretion is not vested in any administrative body, as in Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 (1931), and the dangers of censorship are not present.

Iacobucci v. City of Newport, Ky., 785 F.2d 1354, 1359 (6th Cir.1986) (emphasis added).

I do not harbor the serious reservations of Judge Merritt that obscenity ordinances may not, under any circumstances, validly revoke a business license of one dealing in obscenity, properly defined, in a particular location. A permanent revocation of license may be too broad a sanction in the situation before us. I have no problem, as did the district court, with the words “regu *472 lar course of business” and “repeatedly” as used in the ordinance in question. I do not find them “vague” or overbroad, examined in context with their use in the ordinance.

I concur in the result reached by Judge Merritt in this case. I do not, however, adopt the rationale of J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482 (9th Cir.1984), rev’d on other grounds sub nom., Brockett v. Spokane Arcades, Inc., — U.S. —, 105 S.Ct. 2794 , 86 L.Ed.2d 394 (1985).