Petition for Writ of Certiorari — Arizona v. Bauer

$8 -] 865 q Supreme Court, U.S, |

FILED

MAY 13 1989

In The JOSEPH F. SPANIOL, JR,

Supreme Court of the United-States——_

October Term, 1988 is

No.

STATE OF ARIZONA,

Petitioner,

vs.

GARY M. BAUER, and

YOCO ENTERPRISES, INC.,

d.b.a. Castle Adult Bookstore,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE STATE OF ARIZONA

ROBERT K. CORBIN

Attorney General

State of Arizona

STEVEN J. TWIST

Chief Assistant Attorney General

JESSICA GIFFORD FUNKHOUSER

Chief Counsel, Criminal Division

JOSEPH T. MAZIARZ

Assistant Attorney General

BRUCE A. TAYLOR

Assistant Attomey General

Counsel of Record

Office of the Attorney General

Criminal Division

1275 W. Washington Street

Phoenix, Anzona 85007

(602) 542-4686

Counsel for Petitioner

QUESTION PRESENTED

FOR REVIEW

Whether the First Amendment prohibits a

state criminal court from making the

Surrender or forfeiture of business

permits and licenses a condition of

probation for an individual and a

corporation convicted of felony obscenity

violations, pursuant to a general state

sentencing provision that provides for

forfeiture or revocation of any state or

local permit or license upon conviction

of any felony.

a, es

He

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES

PETITION FOR THE WRIT :

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF THE CASE

LAW AND ARGUMENT

Reasons for Allowing

the Writ

Proposition of Law:

The First Amendment Does not

Prohibit Post-Conviction

Application of General Penalty

Provisions Even When That

Application Could Impact

Incidentally On Sales of

“Expressive Material".

CONCLUSION

yo

15

15

19

26

oe PF eee ee : .

APPENDIX

A.

B.

Cc.

D.

Opinion of the Court of Appeals

Orders of Arizona Supreme Court

and Court of Appeals

A.R.S. § 13-603

A.R.S. §§ 13-3501, 3502

CERTIFICATE OF SERVICE

(Follows Appendix)

-111-

TABLE OF CASES AND AUTHORITIES

Cases , Page

Arcara v. Cloud Books, Inc.

478 U.S. 697 (1986) 18,19,20,

22,24,.43.,4a6

Fort Wayne Books, Inc. v. Indiana

489 U.S. (1989) 18,24,25

FW/PBS, Inc., v. City of Dal'tas

No. 87-2012

M.J.R., Inc. v. City of Dallas

No. 87-2051

Calvin Berry, IfI v. City of Dallas

No. 88-49

Cert. Granted, 9.8. ,

103 L. Ed. 2d 578,

109 S. Ct. 1309 (Feb. 27, 1989) 16,18,27

Minneapolis Star & Tribue Co. v.

Minnesota Comm'r of Revenue

460 U.S. 575 (1983) 20

Near v. Minnesota

283 U.S. 697 (1931) 20,22,23,25

Paris Adult Theatre I v. Slaton

413 U.S. 49 (1973) 20,21

State v. Baver

Ariz. =

23 Ariz. Adv. Rep. 56

768 P.2d 175 (Ariz. App. 1988) 6,9,

13,26

United States v. O/Brien

391 U.S. 367 (1968) 20

Vance v. Universal Amusement Co.

445 U.S. 308 (1980) 22,23

-iye-

Authorities \

Arizona Revised Statutes Annotated

§ 13-603 5,6

§ 13-603(F) i

§ 13-603(G) 5,6,24

§ 13-3502 7

28 9.8.2.

§ 1257 4

57 U.S.L.W. 3064-65 (7-26-88) 16

United States Constitution

First Amendment me Fee eh Pe eee eS

In The

Supreme Court of the United States

October Term, 1988

STATE OF ARIZONA,

Petitioner,

vs. .

GARY M. BAUER, and

YOCO ENTERPRISES, INC.,

d.b.a. Castle Adult Bookstore,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE STATE OF ARIZONA

PETITION

The State of Arizona, by and through

its Attorney General, hereby petitions

this Honorable Court to issue a writ of

certiorari to the Court of Appeals of the

State of Arizona, Division One, to review

its decision of December 13, 1988.

The Court of Appeals reversed, on First

Amendment grounds, the criminal trial

court's forfeiture of business permits

and licenses from an individual and a

corporation as part of their sentence

following conviction for felony obscenity

violations. The Supreme Court of Arizona

declined review, making this Meaet the

final forum to save the general remedy of

post-conviction license forfeiture in

obscenity cases.

This federal issue of whether the First

Amendment prohibits the states from

revoking permits and licenses from

persons convicted of felony obscenity

offenses is vitally important to

effective enforcement of state criminal

obscenity laws and deserves the attention

of this Court. It is respectfully urged

that this Petition be granted and the

decision of the Arizona Court of Appeals

be reversed.

OPINION BELOW

The decision of the Court ot Appeals of

the State of Arizona, Division One,

Department C, for which review is sought

is reported as:

STATE of Arizona v. Gary M. BAUER

and Yoco Enterprises, Inc.,

BCsGc 82-5

23 Ariz. Adv. Rep. 56,

768 P.2d 175 |

(Ariz. App. 1988)

(Copy in Appendix A.)

JURISDICTION

The decision of the Court of Appeals of

Arizona was filed on December 13, 1988.

The State filed a Petition for Review,

January 3, 1989, in the Supreme Court of

Arizona, seeking review of the single

issue of whether the Court of Appeals

erred in reversing the trial court's

condition of probation ordering surrender

of Defendants’ licenses and permits. On

March 14, 1989, the Arizona Supreme Court

denied the Petition for Review,

No. CR-89-0015-PR. The Court of Appeals

then issued its Order and Mandate on

March 17, 1989, making its decision of

December 13, 1988, final and remanded the

case to the Superior Court for Maricopa

County for modification of the conditions

of probation. (Copies of the orders of

the Arizona Supreme Court and Court of

Appeals are reproduced in Appendix B.)

This Court has jurisdiction to review

the decision of the Arizona Court of

Appeals, pursuant to 28 U.S.C.§ 1257.

This Petition is timely filed, pursuant

to Rule 20 of this Court, as being within

60 days of the denial of review by the

Arizona Supreme Court.

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution

Amendment 1

Congress shall make no law

abridging the freedom of speech, or of

the press.

Arizona Criminal Code

The criminal code subsection which the

Arizona Court of Appeals reviewed and

held unconstitutional as applied in this

case is Subsection 13-603(G) of the

Arizona Revised Statutes (A.R.S.).

Section 13-603 is entitled: “Authorized

disposition of offenders". It is found

in Chapter 6, “Classification of Offens:2s

and Authorized Dispositions of

Offenders", which deals with sentencings

for all crimes in Title 13. A.R.S.

§ 13-603 was enacted in 1977, became

effective in 1978, and was amended

without changing this subsection, except

to re-number it from § 13-603(F) to

§ 13-603(G). The full text of

A.R.S. § 13-603 is attached as

Appendix C. As described and set out by

the court below, in State v. Bauer,

Ariz. , 23 Ariz. Adv. Rep. 56, 65

n.2, 768 P.2d 175, 180 n.2 (Ariz. App.

1988), the subsection involved is as

follows:

2. At the time of trial the

statute was § 13-603(F), but it has

now been reriumbered to § 13-603(G).

A.R.S. § 13-603(G) (Supp. 1987)

provides:

If a person or an enterprise

is convicted of any felony, the

court may, in addition to any

other sentence authorized by

law, order the forfeiture,

suspension or revocation of any

charter, license, permit or

prior approval granted to such

person or an enterprise by any

department or agency of the

state or of any political

subdivision.

STATEMENT OF THE CASE

Defendants-Respondents Gary M. Bauer

and Yoco Enterprises, Inc., d.b.a. Castle

Adult Bookstore in Phoenix, Arizona, were

indicted by the Maricopa County Grand

Jury of class 6 felony charges under

A.R.S. § 13-3502. (The Indictment is

Item 1 of the Record on Appeal.) (The

Arizona felony obscenity statute is

reproduced in Appendix D.)

A retrial in Maricopa County Superior

Court commenced on April 6, 1987, upon

the charged counts relating to two films

rented and possessed for sale or rental

in March and April of 1985 by these

Defendants at the Castle Adult Bookstore.

At trial, Phoenix Police Detective Al

Shearer testified that he rented the

video-film “Devine Atrocities" from

Defendant Bauer on April 1, 1985, and

seized a copy of the film, plus related

business documents, on April 9, 1985,

pursuant to a Superior Court search

ae

warrant. (See Reporter's Transcript

(R.T.) of April 7, 1987, at 84-88,

93-104). At trial, both films were

played to the jury in their entirety.

(R.T. OF Apt. 8, 3967, 8¢. 23} BR... Of

Apr. 9, 1987, at 3.) The State presented

expert testimony on obscenity. (R.T. of

Apr. 8, 1987, at 3-80; R.T. of Apr. 8,

1987, at 4-78.) The defense presented

expert testimony on non-obscenity. (R.T.

of Apr. 13, 1987, at 16-149; R.T. of

Apr. 14, 1987, at 4-177.)

The Castle Adult Bookstore was

described and admitted to be a place

where exclusively sexual materials were

offered for sale, rental, and viewing,

including video films, magazines, and

sexual devices, all of an explicit

nature. (R.T. of Apr. 7, 1987, at 54,

“65, Last But,» OF AST. G, L987, at 4-15: >

The film “Divine Atrocities” is a

hard-core pornographic film explicitly

showing sexual penetration of various

forms; oral, vaginal, anal, both hetero-

and homo-sexual, and in the context of

sado-masochism and rape. (R.T. of

Apr. 7, 1967, at 24-29, 36, 108.)

The verdict of the jury was not guilty

on Count II relating to the film “Loose

Ends" and guilty of two offenses each for

Defendants Bauer and Yoco Enterprises,

Inc., on Counts III and IV relating to

the film “Divine Atrocities”. (R.T. of

Apr. 16, 1987, at 3-5.) The Court of

Appeals below, in State v. Bauer,

23 Ariz. Adv. Rep. at 56-57, 768 P.2d at

176-77, summarizes this case with one

inaccuracy. The Court of Appeals stated

“the jury found that ‘Loose Ends‘ was not

obscene”, whereas the verdict was a

general “not guilty” with no special

mention or finding of obscenity vel non.

Ruts Ge oes ae, 2907, at 4.)

At the sentencing hearing, the trial

court accepted the verdict and found both

of these Defendants guilty of two counts

each and designated them as class 6

felonies. (R.T. of June 12, 1987,

at 3.) The trial court then mitigated

the sentence as to Defendant Bauer and

placed him on probation as a first

offender. (Id. at 15.) The trial court

sentenced Defendant Bauer both

“individually and as Yoco Enterprises,

Inc.” (Id. at 3, 16) and recited the

conditions of probation (Id. at 16-20).

Three of the conditions of probation

were recited by the trial court as

follows (Id. at 18-19):

Special Term 19... “Obey the

obscenity laws of the State of

Arizona.”

Special Term 20, you are not to

be involved in any manner while

you are on probation to this Court

in the traffic, sale, or rental of

sexually explicit items.

alBn

Special Term No. 21, you are to

surrender all permits, licenses,

grants, et cetera, in the name of

Gary Bauer, Yoco Enterprises or

Yoco Enterprises, doing business

as the Castle Adult Bookstore.

I specifically bring your

attention to your City of

Phoenix's license for the running

of a video center, .. . this is a

video center semi-annual fee for

14 devices that was issued on

June 30th, 1987, and then there is

a second one, also from the City

of Phoenix Finance Department, for

14 devices at $25 where you pay a

semi-annual fee of $350, the one

being issued to Castle Bookstore,

and the other one being issued to

Castle Bookstore and Gary Michael

Bauer.

Also, your privilege license,

issued by the City of Phoenix

Finance Department, under

Privilege License No. 84022339.

Also your transaction privilege

tax license, issued by the Arizona

Department of Revenue, issued to

the Castle Bookstore under license

No. 07296209M, also your

proprietary or patent medicine

permit, issued to you directly

from the Arizona State Board of

Pharmacy, under Permit No. 08495.

All of those groups shall be

notified about the revocation of

all of those permits, licenses and

grants.

att.

Special Term 21 was the only condition of

probation complained of by Defendants on

appeal, was the only portion of the trial

court judgment reversed by the Court of

Appeals, was the only point raised by the

State in its Petition for Review to the

Arizona Supreme Court, and is the sole

issue involved in this Petition.

The federal issue of whether the First

Amendment to the United States Constitution

prohibits as a prior restraint the

revocation or forfeiture of business

licenses and permits upon conviction for

felony obscenity offenses was timely raised

by Defendants-Respondents below.

Immediately after the sentencing judge

recited the conditions of probation,

counsel for the defense objected and was

permitted to argue this issue. (R.T. of

ake

June 12, 1987, at 20-22.) The trial

court agreed to stay the revocation to

allow the defense to seek a stay on

appeal. (Id. at 22.) The parties later

agreed to stay this condition pending

appeal. (See State v. Bauer, 23 Ariz.

Adv. Rep. at 60, 768 P.2d at 181.) The

Defendants-Appellants raised and argued

this issue in assignment of error No. II

at pages 10-17 of their Appellants'

Opering Brief in the Court of Appeals.

The State answered these arguments at

pages 14-19 of its Appellee's Answering

Brief in the Court of Appeals. This

federal issue was properly before the

Court of Appeals when it ruled, and

erroneously reversed, in State v. Bauer,

23 Ariz. Adv. Rep. at 59-65, 768 P.2d at

180-88. The issue was then presented by

the State's Petition for Review in the

ola

Arizona Supreme Court, which was denied on

March 14, 1989. Therefore, this Court has

jurisdiction to review this judgment on

writ of certiorari.

As of this date, these Defendants, Gary

M. Bauer and Yoco Enterprises, Inc.,

remain subject to the trial court's terms

of probation, except for Special Term 2]

unless reversed by this Court, and the

issue is still ripe for adjudication and

not moot.

-]4-

LAW AND ARGUMENT

Reasons for Allowing the Writ

The issue of whether a state trial

court, in sentencing a person convicted of

a felony, can order the forfeiture or

revocation of business permits and

licenses is a complicated one in the

context of a felony obscenity conviction

of a person whose permits and licenses

relate to the operation of an “adult

bookstore” selling exclusively “hard-core

pornography”. However, this issue is

vitally important in the 46 states which

have obscenity laws, and in Arizona in

particular.

This issue of license revocation in

conjunction with obscenity and pornography

laws and zoning ordinances has also been

recognized as presently important to this

Court. On February 27, 1989, this Court

granted certiorari review to the questions

—)

—— x

presented by the petitions in FW/PBS,

ine. ee eee. See OF Dallas, et al.,

No. 87-2012; M.J.R., Inc., et al. v. City

of Dallas, No. 87-2051; and Calvin Berry,

[7 oe pee. fee OF Dallas, et al.,

No. 88-49, relating to the license

revocation provisions of the Dallas zoning

ordinance on Sexually Oriented

Businesses. See order granting petitions

oe eee eee &. EG. 20 578, 109

S. Ct. 1309. See also summary of petition

at 57 U.S.L.W. 3064-65 (7-26-88).

In light of this Court's review of the

license revocation issues in the Dallas

zoning ordinance cases, Petitioner herein

respectfully urges that the Court also

grant the State of Arizona's Petition and

review the issue of whether a general

Criminal law provision that any felony

conviction may cause forfeiture or

revocation of any state or local permits

and licenses applies in obscenity cases.

=

The issue is squarely presented here,

Since the convictions in this case are for

felony obscenity violations, the permits

were held by these Defendants-Respondents

for operating the hard-core pornography

store where the offenses occurred, and the

permits and licenses forfeited as part of

probation involved the operation of that

store. The context of an actual case and

controversy upon proven facts already

subject to the due process of a criminal

trial further supports this case as a

proper vehicie to resolve the First

Amendment issue as applied (rather than

hypothetically as was the case in much of

the precedent relied upon by the Arizona

Court of Appeals in finding such

revocation a prior restraint).

The incidental impact on the possible

future dissemination of protected

materials of a post-conviction punishment

that includes divestment of licenses and

~,

permits by the convicted offender should

be ruled constitutional in light of the

holding in Arcara v. Cloud Books, Inc.,

7. ae, eer, see ©. CE. 3172, 92

L. Ed. 2d 568 (1986), and the decision in

Fort Wayne Books, Inc. v. Indiana, 489

U.S. » see @. Ct. 916, 103 L. EG. 24

34 (1989). The Fort Wayne decision was

not announced when the Court of Appeals

issued the ruling under review in the

instant case. Its impact on this issue

should now be assessed by this Court.

For eens reasons, the Petition should

be granted and decided with the City of

Dallas cases or vacated and remanded after

a decision is reached in the City of

Dallas cases.

“ie

ee

Proposition of Law

The First Amendment Does Not

Prohibit Post-Conviction

Application of General Penalty

Provisions Even When That

Application Could Impact

Incidentally On Sales of

“Expressive Material”.

In Arcara v. Cloud Books, Inc., 478

U.S. at 704-07, 106 S. Ct. at 3176-78, 92

L. Ed. 2d at 576-78, this Court rejected

the argument that the closure of an

"adult" bookstore, after being found to

be a public nuisance as a place of

prostitution, “would also impose an

incidental burden upon respondents’

bookselling activities”.

The State of Arizona submits that once

convicted of an obscenity offense, and

the conviction is affirmed on appeal (and

where, as here, the forfeiture order was

stayed pending appeal), the person

convicted is subject to having his

personally held licenses and permits

== .

revoked without offending the First

Amendment. Indeed, the effect on these

Defendants of the license forfeiture is

practically indistinguishable from the

effect of Special Term 20 of the

probation condition, from which

Defendants did not object or appeal.

Arcara distinguished the closure of a

bookstore after an adjudication

concerning non-protected conduct from the

prior restraints involved in Near v.

Minnesota, 283 U.S. 697, 51 S. Ct. 625,

75 L. Ed. 1357 (1931); United States v.

O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20

L. Ed. 2d 672 (1968); and Minneapolis

Star & Tribune Co. v. Minnesota Comm'r of

Revenue, 460 U.S. 575, 103 S. Ct. 1365,

75 L. Ed. 2d 295 (1983).

We start with the proposition that once

material is properly found obscene, it no

longer has First Amendment protection.

Paris Adult Theatre I v. Slaton, 413 U.S.

=20-

49, 93 S. Ct. 2628, 37 L. Ed. 2d 446

(1973). Therefore, the

Defendants-Respondents below, once the

film “Divine Atrocities” was found

obscene, were no longer subject to First

Amendment protection for the acts

convicted for. When these Defendants are

thereafter removed from the commercial

business they then held permits or

licenses for, this removal only affects

these Defendants for these business

activities and only incidentally affects

the selling of the books and films that

might be present at the store. These

materials could be liquidated to another

merchant, since they were not seized or

restrained by the probation order, and

the business property could be sold or

converted to another use for which these

Defendants could apply for new licenses

Or permits. Whether these Defendants are

forbidden from continuing any business

alin

activities for which they held permits or

licenses at the time of conviction would

not affect the ability of other persons

to sell the items remaining in this

store. The revocation of Defendants’

licenses does not include closure of the

store. The trial court below did not

order that any action be taken against

the store or any materials within the

store. The condition was only that

Mr. Bauer and Yoco Enterprises, Inc.,

Surrender their present permits and

licenses to do business at that location.

The difference from Near v. Minnesota,

noted in Arcara, 478 U.S. at 705 n.2, is

analogous here, in that (1) the probation

order here “would imposed no restraint at

all on the dissemination of particular

materials” (as was the concern of the

assumed injunctive power to enjoin

unnamed future films in Vance v.

Universal Amusement Co., 445 U.S. 308,

x

100 S. Ct. 1156, 63-L. Ed. 2d 413

(1980)), since these

Defendants-Respondents are free to apply

for new permits or licenses to carry on

other businesses elsewhere, and (2) the

license forfeiture was not imposed "on

the basis of an advance determination

that the distribution of particular

materials is prohibited", since it was

imposed after conviction and after the

First Amendment's presumptive protection

was removed from the film involved. This

case is analogous to forbidding _the

editor of a newspaper from working at

that paper after a conviction for

violating a criminal law while acting as

editor of that paper. It is not the same

as closing the newspaper as was attempted

in Near.

Even if strict scrutiny is applied to

analyze a situation where “it was conduct

with a significant expressive element

-23-

that drew the legal remedy in the first

place, as in O'Brien" (Areara, 478 U.S.

at 706), the license forfeiture here

would pass that scrutiny for the reasons

mentioned above. The instant case also

fails to offend Arcara, at 706-07, as “a

Statute based on a nonexpressive activity

[that] has the inevitable effect of

Singling out those engaged in expressive

activity, as in Minneapolis Star”, since

A.R.S. § 13-603(G) applies to all felons

who hold any state or local permits and

has the same effect on these Defendants’

acts as if they were incarcerated or had

the property forfeited which was used in

the offense.

In Fort Wayne Books, Inc. v. Indiana,

469 ¥.6.......,' 103 &. €t.. && B2%=-29,

103 L. Ed. 2d at 51-54, this Court

distinguished unlawful pre-trial seizures

of inventories of books based on probable

cause and inadequate procedures from

~~

post-trial forfeitures. The question of

post-trial forfeiture of property used

in, or derived from, criminal activity

was reserved in Fort Wayne Books, 109

S. Ct. at 928 and n.1l, 103 L. Ed. 2d at

53 and n.1ll. The adversary hearing that

is necessary for a valid seizure of more

than a single allegedly obscene item is

supplied in post-trial forfeitures by the

trial itself. Here, the statute on

sentencing only comes into force after

conviction for a felony and the adversary

trial always precedes any license

forfeiture or revocation.

Since this Court, in Arcara and Fort

Wayne Books, Inc., has clarified the

application of the watershed rule of Near

v. Minnesota in obscenity related cases,

and since the instant probation condition

license forfeitures are not in

contravention to the rules of Near,

Arcara, or Fort Wayne Books, Inc., the

ain

basis for the analysis of the Arizona Court

of Appeals (of the nuisance-padlock and

other license forfeiture cases, State v.

Bauer, 23 Ariz. Adv. Rep. at 59-65, 768

P.2d at 180-87, like those referred to by

the Court in Arcara, 478 U.S. at 701, 106

S. Ct at 3174-75, 92 L. Ed. 2d at 574) is

subject to a new review, and this Petition

presents the opportunity to do so.

CONCLUSION

The Arizona Court of Appeals erred in

treating the license forfeitures of these

two Defendants as a prior restraint on the

dissemination of particular expressive

materials. The surrender of their licenses

would affect only the ability of Mr. Bauer

and Yoco Enterprises, Inc., to continue

Operating the Castle Adult Bookstore. Such

a condition of probation is related to

their felony offenses and is personal as to

them. The incidental impact license

forfeiture has on their First Amendment

thn

activities is narrowly tailored to satisfy

i only the punishment due to them as felons.

The mere fact that the Defendants were

convicted of obscenity felonies, or that

the licenses were related to the operation

of a bookstore, do not prevent the

legitimate reach of otherwise valid

personal punishment.

For these reasons, and to allow a

consistent result with the City of Dallas

cases pending in this Court, the Petition

should be granted.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

State of Arizona

STEVEN J. TWIST

Chief Assistant

Attorney General

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

JOSEPH T. MAZIARZ

Assistant Attorney General

By: soem | ne

BRUCE A. TAYLGR

Assistant Attorney General

Counsel of Record

for Petitioners

9686d te

Appendix A

ecaneaNlibee ge sliile

Opinion of the Court of Appeals

eee. Pa rwee Lee Sil y

Opinion of

The Court of Appeals of Arizona

Division One, Department C

in

State v. Bauer,

_ (PEaRe sy

23 Ariz. Adv. Rep. 56,

768 P.2d 175

(Ariz. App. 1988)

Reprinted from:

768 PACIFIC REPORTER, 2d SERIES 175

STATE of Arizona, Appellee,

v.

Gary M. BAUER and Yoco Enterprises,

Inc., Appellants.

Nos. 1 CA-CR 11628, 1 CA-CR 11631.

Court of Appeals of Arizona,

Division 1, Department C.

Dec. 13, 1988.

Review Denied March 14, 1989.

Individual and corporation doing busi-

ness as bookstore were found guilty of two

counts of production, publication, sale, or

possession of obscene film, individual was

sentenced to three years probation, and

defendants were imposed fine of $27,400

and were ordered to forfeit all permits and

licenses issued to them by either State or

its political subdivisions, in the Superior

Court of Maricopa County, Cause No. CR-

147826, Francis P. Koopman, J. pro tem.,

and defendants appealed. The Court of

Appeals, Brooks, J., held that: (1) jury in-

structions defining prurient interest were

constitutional; (2) statutory definition of

obscenity was not unconstitutionally over-

broad; (3) requiring business to surrender

all permits and licenses operated as uncon-

stitutional prior restraint in violation of

business’ First Amendment rights; and (4)

A-1

revocation of business’ proprietary or pat-

ent medicine license permit issued by Board

of Pharmacy was not unconstitutional prior

restraint.

Affirmed in part, vacated and remand-

ed with directions in part.

768 PACIFIC REPORTER, 2d SERIES 176

1. Constitutional Law ¢-96.1(6)

Motion pictures are as fully protected

by the First Amendment as are other medi-

ums of expression. U.S.C.A. Const.Amend.

4. Constitutional Law ¢48(1)

In interpreting statutes, courts should,

if possible, give disputed statute constitu-

ona! construction and uphold statute even

though it may be inartfully drawn.

5. Obscenity 2.5

Lack of definition of term “prurient”

in statute stating that item is obscene when

tain a definition of “prurient,” is not over-

broad on its face or as interpreted in Bar-

tanen which affirmed an interpretation of

“prurient interest” containing words “hav-

gate any “chilling” effect. U.S.C.A. Const.

Amend. 1.

A-3

& Obscenity €7.5

Although prior restraints of obscenity

are not unconstitutional per se, they are to

be strictly viewed. U.S.C.A. Const.Amend.

1.

9. Constitutional Law ¢90.4(1)

Licenses 38

Order that business surrender licenses

for running video center, privilege license,

and transaction privilege tax license, after

business was convicted of obscenity, oper-

ated as unconstitutional prior restraint in

violation of First Amendment rights. A.R.

S. § 13-603, subd. G; US.C.A. Const.

Amend. 1.

10. Constitutional Law ¢90.4(1)

Drugs and Narcotics 15

Revocation of business’ proprietary or

patent medicine license permit issued by

Board of Pharmacy, after business was

found guilty of obscenity violations, did not

constitute prior restraint prohibited under

First Amendment. U.S.C.A. Const.Amend ——_—

Robert K. Corbin, Atty. Gen. by William

J. Schafer III, Chief Counsel, Crimina! Div,

Joseph T. Maziarz, Asst. Atty. Gen., Phoe-

nix, for appellee.

Nancy L. Hinchcliffe, Phoenix, and Rob-

ert E. Smith, Universal City, California, for

A-4

OPINION

BROOKS, Judge.

Appellants Gary Bauer and Yoco Enter-

prises, Inc., doing business as Castle Adult

Bookstore (defendants), were charged by

indictment with seven counts of production,

publication, sale, and possession for distri-

bution of obscene items, all class 6 felonies.

The charges stemmed from the sale or

rental of four videocassette films.

The first trial ended in a mistrial, with

the jury informing the trial] court that it

could not reach a verdict on any of the

seven counts. On retrial, the prosecution

768 PACIFIC REPORTER, 2d SERIES 177

elected to proceed on only five counts in

connection with two films, “Loose Ends”

and “Divine Atrocities.” At the conclusion

of the second trial, the jury found that

‘Loose Ends” was not obscene and defend-

ants were acquitted of the charges relating

to that film. However, the jury found each

defendant guilty of two counts of produc-

tion, publication, sale, or possession of an

obscene film in connection with the rental

of “Divine Atrocities,” in violation of A.R.

S. § 13-3502 (1978) (current version in

Supp. 1987).

A-5

At the mitigation/sentencing hearing,

the trial court found that Gary Bauer and

Yoco Enterprises, Inc., were one and the

same and designated all four counts, two

against Bauer and two against Yoco, as

class 6 felonies. After considering the mit-

igating circumstances, the court sentenced

Bauer, individually, and on behalf of Yoco,

to three years probation. As a term of

probation, the court imposed a fine of $27,-

400 jointly upon both defendants. Further,

pursuant to statute, the trial court ordered

that defendants forfeit ali permits and li-

censes issued to either of them by the State

of Arizona or its political subdivisions.

Defendants timely appealed the convic-

tions and terms of probation, challenging

the constitutionality of the Arizona obsceni-

ty statutes, A.R.S. § 13-3501 et seg., and

related jury instructions, as well as the

validity of the term of probation requiring

the license forfeitures. By order of this

court, these separate appeals were consol-

idated. We affirm the convictions but va-

cate the terms of probation and remand for

imposition of new terms of probation.

PRELIMINARY PRINCIPLES

[1] We begin by noting that motion pic

tures are as fully protected by the First

Amendment as are other mediums of ex-

pression. Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098

(1952). However, obscenity is not within

the area of constitutionally protected

speech. Roth v. United States, 354 U.S.

476, 77 S.Ct. 1804, 1 L.Ed.2d 1498 (1957);

A-6

a

me

Miller v. California, 413 U.S. 15, 98 S.Ct.

2607, 37 L.Ed.2d 419 (1973); State v. Book-

Cellar, Inc., 139 Ariz. 525, 679 P.2d 548

(App.1984).

In Miller, the Supreme Court established

guidelines to be used by the trier of fact

when determining whether or not an item

is obscene: (a) whether the average person,

applying contemporary community stan-

dards, would find that the item as a whole

appeals to the prurient interest; (b) wheth-

er the item depicts, in a way that is patent-

ly offensive, sexual conduct as specifically

defined by state law; and (c) whether the

item as a whole lacks serious literary, artis-

tic, political, or scientific value. 413 U.S. at

24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.

Arizona Revised Statutes § 13-3501(2),

which defines obscenity, adopts the Miller

test.!

THE JURY INSTRUCTIONS

(2) The trial court in the instant case

instructed the jury on the definition of ob-

scenity, quoting A.R.S. § 13-3501(2) verba-

tim:

An item is obscene when (A) the aver-

age person applying contemporary state

standards would find that the item, taken

as a whole, appeals to the prurient inter-

est; and (B) the item depicts or de-

scribes, in a patently offensive way, sex-

The statute has been recently amended to re-

flect current refinements in this area of law. |

See Laws, 1986, Ch. 411, § 1. These changes do

not affect our analysis.

A-7

ual activity as that term is described

herein; and (C) the item taken as a whole

lacks serious literary, artistic, political or

scientific value.

The trial court also instructed the jury on

the definition of ‘prurient interest” as fol-

lows:

The term “appeal to the prurient inter-

est” means an appeal to an unhealthy,

unwholesome, morbid, degrading or

shameful interest in sex or nudity. An

interest in sex is normal. But if, the

materia] appeals to an abnormal interest

in sex, it can appeal to the prurient inter-

est. A prurient interest in sex is not the

same as a candid wholesome or healthy

interest in sex. Material does not appeal

768 PACIFIC REPORTER, 2d SERIES 178

to the prurient interest just because it

deals with sex or shows nude bodies.

Prurient interest is an unhealthy, un-

wholesome, morbid, degrading or shame-

ful interest in sex, a leering or longing

interest. An appeal to the prurient inter-

est is an appeal to sexual desire, not an

appeal to sexual interest. An interest in

sex is normal, but if the material appeals

to an abnormal interest in sex, it can

appeal to a prurient interest.

A-§

0

Defendants contend that the trial court

improperly instructed the jury on the defi

nition of “prurient interest.” They argue

that “prurient interest” cannot encompass

“just” or carry any connotation of a nor-

mal, healthy interest in sex. In order to

pass constitutional muster, they argue,

“prurient interest” must be confined to

terms of an “abnormal, unhealthy, un-

wholesome, morbid, degrading, or shame-

ful” interest in sex.

We recognize the rule of law that “pruv-

rient interest” must not include sexual in-

terests that are “healthy, wholesome, hu-

man reaction[s] common to millions of well-

adjusted persons in our society.” J-R Dis-

tributors, Inc. v. Eikenberry, 725 F.2d 482,

490 (9th Cir.1984), rev'd on other grounds

sub nom. Brockett v. Spokane Arcades,

472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394

(1985). Contrary to defendants’ argument,

there is no mention of the words “lust” or

‘lustful desires” in the instruction. In

fact, the trial court specifically refused to

use the term “lust” after a request to do so

by the state. We conclude that, when read

as whole, the instruction is sufficient to

inform the jury that “prurient” means an

unwholesome, morbid, degrading, or

shameful interest in sex. See State v. Bar-

tanen, 121 Ariz. 454, 591 P.2d 546, cert.

denied, 444 U.S. 884, 100 S.Ct. 174, 62

L.Ed.2d 113 (1979).

A-9

{3] Defendants next argue that the trial

court’s instruction on the third prong of the

Miller test, whether the item lacks serious

literary, artistic, political, or scientific val-

ue, was improper in light of the United

States Supreme Court’s recent decision in

Pope v. Illinois, 481 US. 497, 107 S.Ct.

1918, 95 L.Ed.2d 439 (1987). We find no

error.

In Pope, the jury was instructed that in

determining whether the material was ob-

scene, it had to apply “contemporary com-

munity standards” to all three prongs of

the Miller test. However, the Supreme

Court held that the proper inquiry with

respect to the third part of the Miller test

is “not whether an ordinary member of any

given community would find serious liter-

ary, artistic, political, or scientific value in

the alleged obscene material, but whether a

reasonable person would find such value

in the material, taken as a whole.” Jd. 481

US. at 500-601, 107 S.Ct. at 1921, 95 L.Ed.

2d at 445 (emphasis added).

In the instant case, the record reveals

nothing which would suggest that the trial

court improperly instructed the jury that

the third part of the Miller test for obsceni-

ty must be judged by reference to commu-

nity standards. To the contrary, the trial

court specifically instructed the jury that

contemporary state standards applied only

to the questions of appeal to prurient inter-

est and patent offensiveness, the first two

A-10

parts of the Miller test. When the court

the jury on the third part, it

stated:

Another part of the statutory test for

obscenity, requires the jury to find

whether material taken as a whole lacks

serious literary, artistic, political, or sci-

entific value.

Though serious value or the lack of it

is not determined in terms of contem-

porary state standards, evidence of ca-

tering to prurient interest in the creation,

promotion, or dissemination of material

is relevant in determining whether the

material has any such claimed serious

value.

(Emphasis added.) As noted by this court

in State v. Feld, 155 Ariz. 88, 91 n. 1, 745

P.2d. 146, 149 n. 1 (App.1987), cert. denied,

485 U.S. ——, 108 S.Ct. 1270, 99 L.Ed.2d

482 (1988), the third part of the Miller test

found in A.R.S. § 13-3501(2) must be ana-

lyzed according to the reasonable person

standard articulated in Pope, which is en-

tirely consistent with the language of our

768 PACIFIC REPORTER, 2d SERIES 179

statute. In fact, although Pope had yet to

be decided, the defendants in the instant

case attempted to inject into the trial court

proceedings the very idea that was rejected

in Pope.

A-1]

MR. SMITH [Counsel for defendants]:

: . we would ask the court and we will

give you a written instruction tomorrow

morning, your Honor, for the record—

THE COURT: Yes.

MR. SMITH: —that will ask you to

charge the concept of serious value in

the light of contemporary community

standards of acceptance or tolerance.

The trial court correctly declined to out-

guess the Supreme Court’s decision in

Pope and refused to give the instruction.

We find no error as the trial court correctly

applied the law.

CONSTITUTIONALITY OF THE

ARIZONA OBSCENITY

STATUTES

Defendants also challenge the constitu-

tional validity of Arizona’s obscenity stat-

utes, claiming that the definition of obscen-

ity is “unconstitutionally overbroad, both

on its face and as applied.” They argue

that the definition includes within its reach

material that appeals to a normal interest

in nudity or sex. We take this to mean

that defendants challenge the statutory

term “prurient interest” as being over-

broad on its face and as interpreted by the

Arizona Supreme Court in State v. Barta-

nen, 121 Ariz. 454, 591 P.2d 546, cert.

denied, 444 U.S. 884, 100 S.Ct. 174, 62

L.Ed.2d 113 (1979). We reject both of

these contentions.

A-12

Jhon tecieiaamuaail

{4,5] In interpreting statutes, courts

should, if possible, give the disputed stat-

ute a constitutional construction and up-

hold that statute even though it may have |

been inartfully drawn. See generally |

_ State v. Grijalva, 111 Ariz. 476, 533 P.2d |

533, cert. denied, 423 U.S. 873, 96 S.Ct.

141, 46 L.Ed.2d 104 (1975); State v. Book-

Cellar, Inc., 139 Ariz. at 528, 679 P.2d at

551. An overbroad statute is “one that is

designed to burden or punish activities

which are not constitutionally protected,

but [that] includes within its scope activi-

ties which are protected by the first amend-

ment.” Hill v. City of Houston, 764 F.2d

1156, 1161 (5th Cir.1985), aff'd on rehear-

ing, 789 F.2d 1103 (5th Cir.1986) (en banc),

aff'd, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.

2d 398 (1987).

We first note that A.R.S. § 13-3501 does

not define “prurient.” It does, however,

mirror the Miller decision. Obscenity stat-

utes which meet the guidelines set forth in

Miller but leave the word “prurient” unde-

fined or defined by case law have been

upheld. See People v. Sequoia Books,

Inc., 160 TlLApp.3d 315, 112 Ill. Dec. 54, 513

N.E.2d 468 (1987), cert. denied, — US.

—, 109 S.Ct. 175, 102 L.Ed.2d 144 (1988);

Red Bluff Drive-in, Inc. v. Vance, 648

F.2d 1020 (5th Cir.1981), cert. denied sub

nom. Theatres West, Inc. v. Holmes, 455

US. 913, 102 S.Ct. 1264, 71 L.Ed2d 453

(1982); Brockett v. Spokane Arcades, Inc.,

472 U.S. 491, 505 & n. 13, 105 S.Ct. 2794,

A~-13

eerie

2802 & n. 13, 86 L.Ed.2d 394, 407 & n. 13

(1985). Thus, the lack of a statutory defini-

tion of “prurient” does not make the Ari-

zona statute facially overbroad.

{[6] Since the term “prurient” in Ar-

a zona has been defined in case law, rather

than statute, we perceive defendants’ con-

stitutional attack not to be aimed at the

lack of a statutory definition, but at the

construction given the statute in State v.

Bartanen. In Bartanen, our supreme

court affirmed an interpretation of “pru-

rient interest” submitted in a jury instruc-

tion which contained the words “having

lustful ideas or desires.” However, the

court noted that the Bartanen jury instruc-

tions contained a detailed explanation of

prurience, expressly differentiating be

tween “prurience” and an interest in sex

which is candid, wholesome, and healthy.

Therefore, the court found that the instruc-

tions, read as a whole, were adequate to

inform the jury that “prurient interest’

was a morbid or shameful interest in sex.

The identical argument presented by de-

fendanis herein was considered and reject-

ed in Polykoff v. Collins, 816 F.2d 1326

(9th Cir.1987). There, several plaintiffs

sought declaratory relief and an injunction

restraining the Maricopa County Attorney

768 PACIFIC REPORTER, 2d SERIFS 180

A-14

from enforcing the Arizona obscenity stat-

ute against them. They alleged that it was

unconstitutionally overbroad on its face be-

cause the Bartanen definition of “prurient

interest” encompassed expression protect-

ed by the First Amendment. The district

court denied relief and the Ninth Circuit

affirmed, finding that the statute was nei-

ther overbroad on its face, nor as construed

by the Arizona Supreme Court.

The Polykoff court relied on J-R Distrib-

utors, Inc. v. Eikenberry, 725 F.2d 482

(9th Cir.1984), rev'd on other grounds sub

nom. Brockett v. Spokane Arcades, 472

US. 491, 105 S.Ct. 2794, 86 LEd2d 394

(1985). In /-R Distributors/Spokane Ar-

cades, the Ninth Circuit invalidated an en-

tare Washington obecenity statute because

it used “lust” to define “prurient interest.”

The court found that “lust” may encom-

pass normal, healthy emotions and there-

fore would not be within the ambit of “pruv-

rient.” On appeal, the Supreme Court

held, given the court’s finding as to the

term “lust,” that the Ninth Circuit improp-

erly invalidated the entire statute. Partial

invalidation was appropriate, the Court

held, but “only insofar as the word ‘lust’ is

to be understood as reaching protected ma-

terials.” 472 US. at 504, 106 S.Ct. at 2802,

86 LEd2d at 406. Consequently, the

Court reversed and remanded the case.

However, on remand the case was settled.

Polykoff, 816 F.2d st 1836. The issue of

whether the term “lust” did in fact encom-

pass normal, healthy emotions was never

A-15

finally decided by the Ninth Circuit.

Therefore, the thrust of +R Dis

tributors/Spokane Arcades, is that the

term “lust” may encompass both protected

and non-protected expression.

The Polykoff court used this principle in

scrutinizing the Bartanen jury instruc

tions. It noted that the Bartanen instruc

tions included an ALI, Model Penal Code

definition of “prurient” which was ap

proved in Roth, 354 US. at 487 n. 20, 77

S.Ct. at 1310 n. 20, 1 L.Ed.2d at 1508 n 20,

and Spokane Arcades. It then held:

The instructions upheld in Bartanen re-

peatedly exclude normal, wholesome,

healthy sexual desires from the scope of

“prurient interest.” The limiting con-

struction abeent in JR Dis-

tributors/Spokane Arcades [ie., the

ALI definition] is clearly present here.

Therefore, we reject the contention that

the “prurient interest” definition in Bar-

tanen is unconstitutionally overbroad.

Polykoff, 816 F.2d at 1336-37. For the

same reasons given by the Ninth Circuit in

Polykoff, we find defendants’ argument

here to be without merit.

LICENSE FORFEITURE PROVISIONS

license, an Arizona Department of Revenue

transaction privilege tax license, and de

fendants’ proprietary or patent medicine

license issued by the Arizona Board of

Pharmacy.

Citing federal case authority, defendants

argued to the trial court that such license

forfeitures comprised an unconstitutional

768 PACIFIC REPORTER, 2d SERIES 18]

prior restraint on their freedom of expres-

sion under the First Amendment. The trial

court stated that it was merely following

the statutory sentencing provisions as re

quired by law. However, recognizing First

Amendment concerns, the trial court

stayed the revocation of the licenses for 60

days in order for the defendants to seek a

stay of that term of probation from this

court. The parties then agreed to a stay of

the surrender of the licenses pending ap

peal and we so ordered.

Defendants continue to characterize the

license forfeitures as a prior restraint in

violation of their First Amendment rights.

They argue that the effect of the forfei-

tures is to restrain them from disseminat-

ing constitutionally protected material in

the future based solely om the obscenity

A-18

conviction. The state maintains that it can-

not constitutionally enforce a statute de-

signed to suppress protected speech absent

compelling circumstances. However, the

state argues that the license forfeiture pro-

vision is not designed to restrain speech,

but is merely a statute of general applica-

bility, designed to reach all offenders re-

gardless of the underlying offense. Thus,

the state contends that the defendants are

simply being punished for violating the law

and any restraint of speech is merely coin-

cidental. We find the state’s position un-

persuasive.

The starting point for determining -

whether a statute acts as a prior restraint

is Near v. Minnesota, 283 U.S. 697, 51

S.Ct. 625, 75 L.Ed. 1357 (1931). In that

case, a Minnesota statute provided that

publication, possession, or sale of either an

“obscene” or a “malicious, scandalous and

defamatory” periodic] was a nuisance and

could be judicially enjoined. /d. at 702, 51

S.Ct. at 626, 75 L.Ed. at 1360. Near pub-

lished a newspaper which was found to be

“malicious, scandalous and defamatory.”

After trial, a permanent injunction was is-

sued enjoining him from conducting any

further business under the name and title

of the newspaper. The Supreme Court

held that the injunction was unconstitution-

al.

The Court began by noting that the state

has authority to enact laws which promote

the health, safety, and general welfare of

its people. However, this authority is not

limitless. The limits of that power are to

be ‘‘determined with appropriate regard to

the particular subject of its exercise.” /d.

at 707, 51 S.Ct. at 628, 75 L.Ed. at 1363.

For instance, the state’s power is limited in

the area of speech. In the context of prior

restraint analysis “the court has regard to

substance and not to mere matters of

form,” and “in accordance with familiar

principles, the statute must be tested by its

- operation and effect.” Jd. at 708, 51 S.Ct.

at 628, 75 L.Ed. at 1363-64. The Court

concluded that the effect of the Minnesota

nuisance abatement statute was prior re-

straint and held that such a restraint was

contradictory to the fr-eirms protected by

the First Amendmen«.

Although the Court in “ear recognized

that the prohibition agai«st prior restraints

is not absolute (exceptions include national

security matters and obscenity), later Su-

preme Court decisions have strengthened

First Amendment protections by holding

that any system of prior restraint of ex-

pression comes to court with a heavy pre-

sumption of unconstitutionality. Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 83

S.Ct. 681, 9 L.Ed.2d 584 (1963).

It is important to distinguish prior re-

straint from subsequent punishment. Sub-

sequent punishment for violations of crimi-

nal obscenity laws does not prevent one

A-20

from expressing oneself; it simply provides

punishment for an expression which is

harmful to the public welfare. This indeed

“chills” free expression to some extent, but

that is outweighed by the state’s interest in

the welfare of its citizens. On the other

hand, a prior restraint stops one from

speaking at all. This goes beyond “chill-

ing”; it “freezes” speech.’

[7,8] As we have already noted, ob-

scenity is not protected by the First

Amendment and may bé criminally sanc-

‘tioned. It may also be restrained prior to

its dissemination, but only under certain

3. See A. Bickel, The Morality of Consent 61 (1975).

768 PACIFIC REPORTER, 2d SERIES 182

procedures adopted by the Supreme Court

which are designed to mitigate any “chill-

ing” effect. See Freedmay v. Maryland,

380 U.S. 51, 85 S.Ct. 734, 138 L.Ed.2d 649

(1965). Even then, hewever, such proce-

dures, usually nuisance abatement proceed-

ings, are narrowly scrutinized. In Vance

v. Universal Amusement Co., 445 US.

308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980),

A-2]

the defendant company challenged a Texas

public nuisance abatement statute which

allowed the trial court to enjoin the show-

ing of a motion picture before a final adju-

dication of obscenity. In holding the stat-

ute unconstitutional the Court stated:

Presumably, an exhibitor would be re-

quired to obey such an order [under the

nuisance statute] pending review of its

merits and would be subject to contempt

proceedings even if the film is ultimately

found to be nonobscene. Such prior

restraints would be more onerous and

more objectionable than the threat of

criminal sanctions after a film has

been exhibited, since mnonobscenity

would be a defense to any criminal

prosecution.

Id. at 316, 100 S.Ct. at 1161-62, 63 L.Ed.2d

at 421 (emphasis added) (footnote omitted).

It is clear, then, that although prior re-

straints of obscenity are not unconstitution-

al per se, they are to be strictly viewed.

[9] Several federal and state courts

have addressed the First Amendment con-

cerns presented by state laws and local

ordinances which use a nuisance abatement

power to control obscenity. Certain juris-

dictions have attempted to abate nuisances

by revoking the offenders’ business licens-

es. See Cornflower Entertainment, Inc.

v. Salt Lake City Corp., 485 F.Supp. 777

(C.D.Utah 1980). Other jurisdictions utilize

“padlock” laws which mandate a judicially-

A-22

ordered injunction under which authorities

close the place of business and bar its

owners from operating in that location for

the duration of the injunction. See City of

Paducah v. Investment Entertainment,

791 F.2d 463 (6th Cir.), cert. denied, 479

U.S. 915, 107 S.Ct. 316, 93 L.Ed.2d 290

(1986).

Whether dealing with “padlock” laws or

with the question of using license forfei-

tures as a deterrent to obscenity, an over-

whelming majority of courts have conclud-

ed that the involuntary closure of a motion

picture theater or bookstore for obscenity

violations is an unconstitutional prior re

straint. See, e.g., City of Paducah v. In-

vestment Entertainment; Entertainment

Concepts, Inc. Ill v. Maciejewski, 631 F.2d

497 (7th Cir.1980), cert. denied, 450 U.S.

919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981);

Spokane Arcades, Inc. v. Brockett, 631

F.2d 135 (9th Cir.1980), summarily aff'd,

454 U.S. 1022, 102 S.Ct. 557, 70 L.Ed.2d 468

(1981); Gayety Theatres, Inc. v. City of

Miami, 719 F.2d 1550 (11th Cir.1983) (per

curiam); Pollitt v. Connick, 596 F.Supp.

261 (E.D.La.1984); Cornflower Entertain-

ment, Inc. v. Salt Lake City Corp., 485

F.Supp. 777 (C.D.Utah 1980); Sanders v.

State, 231 Ga. 608, 208 S.E.2d 153 (1974);

State v. A Motion Picture Entitled “The

Bet”, 219 Kan. 64, 547 P.2d 760 (1976).

The court in Pollitt v. Connick summa-

rized the cases as follows:

A-23

These decisions establish that the first

~ amendment permits injunctions against

the future dissemination of particular

items that have previously been judicial-

ly determined obscene, but it does not

permit blanket injunctions against dis-

semination of materials not yet judicially

determined obscene, regardless of the in-

creased probability, due to the dissemina-

tor’s prior track record, that the materi-

als will actually be obscene.

596 F.Supp. at 271. A review of several of

these decisions would be instructive.

In 1982, a Florida state court enjoined

Gayety Theatres from showing a certain

videotape which had been declared obscene.

Gayety, 719 F.2d at 1550. Thereafter, the

City of Miami revoked Gayety’s business

license for one year pursuant to the city

code which allowed for revocation of licens-

es when the licensee had been permanently

enjoined from disseminating material found

to be obscene. The district court, in a

memorandum opinion, found that the li-

cense revocation was an unconstitutional

prior restraint. The Eleventh Circuit Court

of Appeals, in a per curiam opinion, af-

A-24

768 PACIFIC REPORTER, 2d SERIES

firmed the district court’s holding and

adopted the memorandum opinion as its

own

public place.

719 F.2d at 1552.

In Cornflower Entertainment, several

of Cornflower’s employees were convicted

of distributing obscene materials in vioia-

tion of state and local law. Under a Salt

Lake City ordinance, businesses whose em-

ployees were convicted of those crimes

could have their city operating licenses re-

A-25

In this case, there has been a judicial

determination in state court that the

plaintiff violated state law by exhibiting

an obscene videotape. The City of Miami

has constitutionally prevented further

showing of that videotape. That it can

surely do, but it cannot constitutionally

pierce the First Amendment shield and

bar, for one year, presumptively protect-

ed expression based only on prior unpro-

tected conduct. The line between ob-

scenity and protected expression is dim

and uncertain. Under the law, the City

can no more impose such a prior re-

straint on the plaintiff than could it by

ordinance restrain a citizen from speak-

ing in public for one year because the

citizen once uttered an obscenity in a

183

+ a

voked by the Board of City Commissioners.

As a result of the obscenity violations, the

city revoked the company’s licenses for one

year.

The district court struck down the city

ordinance as an impermissible prior re- -

straint on the exhibitor’s freedom of ex-

pression under the First Amendment. The

court held that the city ordinance license

revocation scheme resulted in the complete

suppression of material for a period of one

year, without regard to whether such mate-

rial was constitutionally protected, based

solely on a past obscenity conviction. 485

F.Supp. at 785. Finding no effort on the

part of the city to provide safeguards to

prevent legitimate expression from being

restrained, the court held that the ordi-

nance created an unconstitutional prior re-

straint containing none of the conditions

necessary to pass constitutional muster.

Likewise, the Supreme Court of Georgia

invalidated a statute which provided for the

closing down of an entire bookstore on the

basis of a finding that obscene material

had been sold or shown on the premises.

Sanders v. State, 203 S.E.2d at 154. The

court found that although an adult book-

store is subject to reasonable regulation

under the police power of the state like any

other bookstore, the “overly broad” statute

created an excessive “chilling effect” upon

the exercise of free expression. /d. at 157.

Furthermore, “{o]ne obscene book on the

premises of a bookstore does not make an

A-26

entire store obscene.” Jd. The closing of

the store necessarily prohibited the sale of

other material which may not have been

obscene and was presumptively protected.

Thus, the statute went too far.

In City of Paducah v. Investment En-

tertainment, the city enacted a public nui-

sance abatement ordinance which allowed

the Board of Commissioners to rescind all

licenses issued to a business which had

distributed materials found to be obscene.

Subsequently, police officers purchased

various sexually explicit magazines and

video tapes from certain businesses. Fol-

lowing notice to the management of these

businesses, the city held public hearings,

determined the purchased material to be

obscene, and declared those businesses to

be public nuisances. The city then sought

abatement under the ordinance which con-

templated the filing of a civil action to

revoke the operating licenses of the busi-

nesses.

The issue presented to the court of ap

peals was whether Paducah could use li-

cense revocation as a tool to control obscen-

ity. The Sixth Circuit found that the ordi-

nance was unconstitutional since the |i-

cense revocation procedure could have re-

sulted in closing down an entire business,

even though not all of the material was

obscene. Therefore, the abatement proce-

dure amounted to a prior restraint of pro-

tected speech as well as unprotected

speech. The court stated:

A-27

[T]he ... use of license revocation as a

weapon against obscenity goes beyond

merely deterring or punishing individuals

who deal in obscene material. The ordi-

768 PACIFIC REPORTER, 2d SERIES 184

nance’s purpose ... is to control future

expression by businesses that have been

subjected to the nuisance abatement pro-

cedure. The ordinance is a prior re

straint of plaintiff's freedom of expres-

sion.

791 F.2d at 470. Thus, the license revoca-

tion procedure was unconstitutional.

Recently, in State v. Feld, 155 Ariz. 88,

7145 P.2d 146 (App.1987), cert. denied, 485

U.S. ——, 108 S.Ct. 1270, 99 L.Ed.2d 482

(1988), we addressed the issue of closing or

reorganizing businesses involved in traf-

ficking in obscene items under the post-con-

viction civil remedies of Arizona’s RICO

statutes.‘ The Feld defendants were

charged with conducting an illegal enter-

prise through racketeering which involved

the exhibition of obscene films by various

combinations of individuals and corporate

4. A.RS. § 13-2314 ef seg. as adopted from the

Racketeer Influenced and Corrupt Organiza-

tions Act. 18 U.S.C. §§ 1961-68 (1964).

A-28

defendants. They challenged the constitu-

tionality of the RICO remedies as applied

to criminal obscenity prosecutions. We

found that the presence of free speech

concerns mandated a careful construction

of the statute.

The state’s remedies against obscenity

under RICO are more limited than the

State’s remedies against other forms of

racketeering activity. These limits are

required by the federal and state consti-

tutional rights regarding freedom of

speech and press. The state can no more

expect to reach protected interests by

means of the RICO statutes than it could

by means of moral nuisance or obscenity

statutes.

155 Ariz. at 98, 745 P.2d at 156.

In assessing the constitutionality of our

RICO remedies within a First Amendment

context, we agreed with the reasoning of

the Indiana Court of Appeals in 4447 Corp.

v. Goldsmith, 479 N.E.2d 578 (Ind.App.

1985), vacated, 504 N.E.2d 559 (Ind.1987),

cert. granted sub nom. Fort Wayne

Books, Inc. v. Indiana, 485 U.S. ——, 108

S.Ct. 1106, 99 L.Ed.2d 268 (1988).5 In 4447

Corp., the defendants were charged under

5. We found the Indiana Court of Appeals opin-

ion “more comprehensive and persuasive than

the Indiana Supreme Court's reversal... .”

Feld, 155 Ariz. at 96, 745 P.2d at 152.

A-29

Indiana RICO statutes with operating an

illegal enterprise involving the dissemina-

tion of obscene materials. The Indiana

statutes specifically provided for license

forfeiture in addition to other civil remedies

such as “padlocking” the establishment, re-

voking corporate charters, and forfeiting

all proceeds from the distribution of the

outlawed materials.

The Indiana Court of Appeals stated:

Our foregoing analysis of the property

seizure and forfeiture remedies under

the prior restraint doctrine applies equal-

ly to other RICO/CRRA remedies. The

state ... also seeks forfeiture of defend-

ants’ business licenses and revocation of

their corporate charters. Because these

licenses and charters are obviously pre-

requisites for the corporate defendants’

continued operation, their denial or revo-

cation works as effective a prior re-

straint as do the seizure and other forfei-

ture sanctions.

Such denial or forfeiture of licenses

and charters based upon the past behav-

ior of a business in distributing obscenity

has been roundly condemned as a prior

restraint by other courts....

These decisions are informed by the

central teaching of Near that even the

most flagrant abuses of the freedoms of

speech and press do not justify the impo-

sition of sanctions which prospectively

curtail communicative activity. The cor-

porate defendants’ right to continue op-

A-30

eration of these bookstores may not be

abridged on the basis of past obscenity

convictions, whether by padlock order,

property forfeiture, or license revocation.

492 N.E.2d at 591-92 (citations omitted).

In Feld, we found that certain sections of

Arizona’s RICO statutes were unconstitu-

tional. Specifically we held:

[Subsections (D)({1), (2) and (3) of A.R.

S. § 18-2314] act as a prior restraint

upon the sale of privileged matter, and

that the effect of the restraint is to close

bookstores and theaters. The sanctions

768 PACIFIC REPORTER, 2¢ SERIES 185

restrict future, presumptively protected

speech, rather than punishing the distri-

bution of unprotected speech in the past.

155 Ariz. at 97, 745 P.2d at 154-55. In the

instant case, we fail to see how a sanction

which effectively operates to permanently

close a business is not an unconstitutional

prior restraint merely because such a sanc-

tion falls under the sentencing provisions

of A.R.S. § 13-603(G), rather than the

RICO remedies of A.R.S. § 13-2314 et seq.,

or the Obscene Movie and Pictorial Publica-

tion Abatement Statutes under A.R.S.

§§ 12-811 et seg., which we strictly con-

strued in State v. Book-Cellar, 139 Ariz.

525, 679 P.2d 548 (App.1984). The license

A-31

revocations here operate in the same man-

ner as did the statutes in Feld and Book-

Cellar. Namely, they foreclose the exer-

cise of future, presumptively protected ex-

pression on the basis of a past obscenity

violation. The First Amendment does not

allow such an effect. :

The state advances several arguments in

support of license revocation as punish-

ment for an obscenity conviction. First, it

asserts, as it did in the trial court, that

§ 13-603(G) is not designed to suppress

free expression and is therefore constitu-

tional. It points out that the sentencing

provisions of the statute are content-neu-

tral and are designed to be applied to all

offenders, regardless of the offense com-

mitted. Further, the state argues that the

defendants are ceing punished for violating

the law, and the fact that the penalty im-

posed affects free expression is merely an

incidental result. Also, the state notes that

other courts have upheld one-year closures

of theaters based upon a past exhibition of

obscene films. We find these arguments

unpersuasive.

In support of its argument that the trial

court, upon a finding of obscenity, may

impose a closure or forfeiture to penalize

past conduct involving the distribution of

unprotected obscenity, the state cites:

State ex rel. Kidweil v. U.S. Marketing,

Inc., 102 Idaho 451, 631 P.2d 622 (1981),

appeal dismissed, 455 U.S. 1009, 102 S.Ct.

1649, 71 L.Ed.2d 878 (1982); State ex rel.

Ewing v. “Without a Stitch”, 37 Ohio St.

2d 95, 307 N.E.2d 911 (1974), dismissed for

A-32

lack of a substantial federal question sub

nom. Art Theater Guild, Inc. v. Ewing,

421 U.S. 923, 95 S.Ct. 1649, 44 L.Ed.2d 82

(1975); and State ex rel. Cahalan v, Diver-

sified Theatrical Corp., 59 Mich.App. 223,

229 N.W.2d 389 (1975), rev'd on other

grounds, 396 Mich. 244, 240 N.W.2d 460

(1976). We decline to follow these cases as

they represent a minority view and are also

distinguishable on their facts.

The trial court in Kidwell, upon finding

that the defendant corporation had dissemi-

nated obscene material, imposed a one-year

closure of the defendants’ bookstores un-

der Idaho’s Moral Nuisance Abatement

Act. Defendants challenged the closure

order as an unconstitutional prior restraint.

The Idaho Supreme Court found the abate-

ment procedure to be constitutional. It

ignored much of the caselaw precedent cit-

ed above, supra, p. ——, 768 P.2d p. 182,

choosing to rely instead on the “Without A

Stitch” and Diversified decisions. See

Kidwell, 631 P.2d at 629 n. 10.

The Idaho court based its holding on the

fact that the closure was temporary. Fur-

thermore, the court noted that the defend-

ant was not barred from conducting busi-

ness, because the closure was only a forfei-

ture of a specific piece of property and the

defendant was free to do business else

where. We find that the presence of those

factors in Kidwell distinguishes that case

from the one at hand.

A-33

The Aidwell court relied, in part, on the

Diversified decision, which the state also

relies upon here. In Diversified the de-

fendant corporation was found to have vio-

lated the Michigan Public Nuisance Act by

exhibiting obscene motion pictures. Pursu-

ant to the Act, the trial court ordered a

one-year closure of the theater. The Michi-

gan Court of Appeals upheld the closure

because the defendant was enjoined only

from showing films in the particular build-

ing. Thus, the defendant could show films

at some other location. Furthermore, the

Act made provision for a “release” from

the closure. Neither of those two factors

is present in our case. The license revoca-

tion here is permanent and bars the defend-

768 PACIFIC REPORTER, 2d SERIES 186

ants from disseminating any material.

Thus, Diversified is also inapplicable.

6. We note that the Michigan Supreme Court

reversed the Court of Appeals’ opinion without

- reaching the First Amendment issues. 240

N.W.2d at 463. “We ... read [Diversified] as

standing solely for the proposition that motion

picture theatres may not be enjoined from

showing obscene films under the abatement

act.” State ex rel. Wayne County Prosecuting

Attorney v. Levenburg, 406 Mich. 455, 280

N.W.2d 810, 811 (1979).

A-34

Finally, both Kidwell and the state in the

instant case rely upon State ex rel. Ewing

v. “Without a Stitch”. In that case, the

Ohio Supreme Court ruled that closure pro-

visions of its nuisance abatement statutes

(which were similar to those in Idaho), com-

prised a constitutionally permissible meth-

od of controlling obscenity. Although the

United States Supreme Court has yet to

rule on these types of “padlock” laws, the

Kidwell court reasoned, as does the state

here, that the Supreme Court’s dismissal of

“Without a Stitch” for lack of a substan-

tial federal question constituted a ruling on

the merits which implicitly approved of nui-

sance closure provisions. Kidwell, 631

P.2d at 628. However, “Without a

Stitch,” whether or not implicitly approved

by the Supreme Court, provides little aid to

the state.

The Ohio court in “Without a Stitch”

narrowly construed the closure provision.

It noted that a release was available and

that the nuisance was only the showing of

the particular movie which had been de

clared obscene. Thus, under the court’s

decision, the effect of the closure was not

great since the theater could show other

films not determined to be obscene.

“Without a Stitch”, 307 N.E.2d at 917-18;

see also Huffman v. Pursue, Lid., 420 U.S.

592, 95 S.Ct. 1200, 48 L.Ed.2d 482 (1975)

(noting that the Ohio court in “Without a

Stitch” narrowly construed the Ohio stat-

ute to avoid prior restraint problems).

Again, this case is not helpful to the state.

A-35

No such construction of § 13-603(G) is pos-

sible. It operates to bar the defendants

from all future dissemination by revoking

their licenses to do business.

We find Kidwell, Diversified and “ With-

cut a Stitch” contrary to both the Arizona

and majority view and clearly distinguish-

able from the license forfeiture cases. In

“padlock” or property forfeiture cases, the

opportunity remains for an exhibitor or

bookstore owner to reopen at another loca-

tion if that person so chooses. However, if

a purveyor of sexually explicit materials

must forfeit business operating licenses as

part of the penalty, such a revocation oper-

ates to preclude that person from selling or

exhibiting protected, non-obscene material

in the future. Unlike the “padlock” cases,

he could not simply move next door and

reopen for business.

.The state’s argument that § 13-603(G) is

merely a statute of general applicability

and therefore any effect upon defendant’s

First Amendment rights is incidental is

equally unpersuasive. The state argues

that attorneys, doctors, realtors and others

could have their licenses or permits re

voked as a result of a felony conviction.

This misses the point. There is an extra

dimension to the case before us. The pres-

ence of First Amendment concerns re-

quires that we carefully consider the effect

of the statute as it has been applied.

Near, 288 U.S. at 708, 51 S.Ct. at 628, 75

A-36

L.Ed. at 1363-64 (statute must be tested by

operation and effect). That effect is to bar

the defendant from any future business of

selling protected materials because of one

obscenity conviction.

In support of its argument that statutes

of general applicability apply regardless of

First Amendment implications, the state

cites: United States v. Pryba, 674 F.Supp.

1504 (E.D.Va.1987); Polykoff v. Collins,

816 F.2d 1326 (9th Cir.1987); and Arcara v.

Cloud Books, Inc., 478 U.S. 697, 106 S.Ct.

3172, 92 L.Ed.2d 568 (1986). Again, we

find these cases inapplicable.

The decision rendered by the Ninth Cir-

cuit in Polykoff v. Collins is inapposite to

the state’s position. As we have noted,

Polykoff upheld our supreme court’s inter-

pretation of “prurient interest” and the

constitutionality of the Arizona obscenity

statutes following a challenge based upon

vagueness and overbreadth. In addition,

the Ninth Circuit upheld Arizona’s felony

768 PACIFIC REPORTER, 2d SERIES 187

fine provisions, holding that Arizona sen-

tencing guidelines “insure that the fines

will be used for deterrent purposes and not

for suppressive purposes.” Polykoff, 816

F.2d at 1338.

A-37

Presumably, the state’s argument is that

the license revocations, like felony fines,

are a deterrent and therefore only inciden-

tally suppressive. Yet, the license revoca-

tions are more than a deterrent, they are a

prior restraint upon the sale of privileged

material. It is true, and the Polykoff court

found, that fines have some chilling effect.

However, this effect is permissible since it

is a subsequent punishment and not a prior

restraint. Further, the fines do not bar

defendants from operating their business

and are not overly broad, but narrowly

support the state’s legitimate deterrent

goal. The license revocations at issue are

not analogous to a fine.

Furthermore, we find that United States

v. Pryba supports both our decision in

State v. Feld and the Ninth Circuit’s rea-

soning in Polykoff. In Pryba, owners and

operators of video stores were criminally

indicted for disseminating obscene materi-

als with accompanying criminal forfeiture

provisions under the federal RICO stat-

utes. Unlike the prosecution in Feld, how-

ever, the prosecutors in Pryba did not seek

to reorganize or dissolve the existing busi-

nesses; rather, they sought to enforee the

statutory provisions allowing the forfeiture

of property and proceeds directly linked to

the commission of the crime. Thus, the

Pryba court, noting that RICO provisions

like those struck down in Feld (post-convic-

tion civil remedies) were not at issue, found

A-38

a nexus between the violation of the feder-

al obscenity laws and the forfeiture of the

interest or proceeds used in the commission

of that crime. Mindful of potential First

Amendment ramifications, the Pryba court

stated:

The forfeiture remedy, properly con-

strued and applied does not impermissi-

bly restrain further dissemination of

speech, but rather simply requires those

engaged in racketeering to disgorge _

their ill-gotten gains.

674 F.Supp. at 1516 (emphasis added).

Based upon that principle, the court found

that the criminal forfeiture provisions were

analogous to fines and were subsequent

punishments which have been consistently

upheld. This holding has no application to

our case.

Finally, the state relies on Arcara v.

Cloud Books, Inc. to support the license

revocation order. The issue in Arcara was

whether the First Amendment precluded

New York State from closing an adult

bookstore found to be a place of prostitu-

tion. The Supreme Court held that no

First Amendment rights were implicated

by enforcement of a public health regula-

tion of general application against premises

upon which books happen to be sold. 478

U.S. at 707, 106 S.Ct. at 3178, 92 L.Ed.2d at

578. In reaching that conclusion, the court

noted:

The closure order sought in this case

differs from a prior restraint in two sig-

A-39

aha win ocsilanigalanlal

nificant respects. First, the order would

impose no restraint at all on the dissemi-

nation of particular materials since re-

spondent is free to carry on his booksell-

ing business at another location, even if

such locations are difficult to find. Sec-

ond, the closure order sought would not

be imposed on the basis of an advance

determination that the distribution of

particular materials is prohibited—in-

deed, the imposition of the closure order

has nothing to do with any expressive

conduct at all.

478 U.S. at 705-06 n. 2, 106 S.Ct. at 3177 n.

2, 92 L.Ed.2d at 577 n. 2. Clearly, Arcara

has no application to the case before us.

CONCLUSION

We hold that the revocation of defend-

ants’ essential operating permits and li-

cense to disseminate materials which fall

within the ambit of the First Amendment

acts as an unlawful prior restraint.

[10] However, we note that under spe-

cial condition of probation 21, in addition to

the other transaction privilege licenses, the

trial court also revoked defendants’ “pro-

prietary or patent medicine license permit”

issued by the Board of Pharmacy. The

768 PACIFIC REPORTER, 2d SERIES

A-40

188

revocation of this patent medicine license

creates no prior restraint on the defend-

ants’ ability to continue to disseminate ma-

terial which is protected under the First

Amendment. Rather, such a revocation

cumprises a permissible penalty constitu-

tionally imposed upon the defendants as

punishment for their illegal conduct.

Whatever chilling effect such a revocation

may have is legitimate, intended, and im-

mune from attack on the grounds that it is

a prior restraint.

We affirm the convictions but vacate the

terms of probation and remand this matter

to the trial court with directions that the

court impose conditions of probation in a

manner consistent with this opinion.

SHELLEY, P.J., and GRANT, V.C_J.,

concur.

A-4]

Appendix B

Orders of

The Supreme Court

and

The Court of Appeals

of Arizona

following the

Petition for Review

Supreme Court

STATE OF ARIZONA

20! WEST WING STATE CAPITOL

1700 WEST WASHINGTON

PMOENIK ARIZONA 65007 2666

TELEPHONE 602) $42 4536

March 15, 1989

RE: STATE OF ARIZONA vs. GARY M. BAUER

and YOCO ENTERPRISES, INC.

Supreme Court No. CR-89-0015-PR

Court of Appeals No. 1 CA-CR 11631

& 1 CA-CR 11628 (Consolidated)

Maricopa County No. CR-147826

GREETINGS:

The following action was taken by the

Supreme Court of the State of

Arizona on March 14, 1989, in regard

to the above-referenced cause:

ORDERED: Petition for Review = DENIED.

Justice Moeller was not present and

did not participate in the

determination of this matter.

Record returned to Court of Appeals,

Division One, Phoenix, this 15th

day of March, 1989.

NOEL K. DESSAINT, Clerk

ee

ig IN THE

Court of Appeals

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA,

Appellee,

GARY M. BAUER and YOCO ENTERPRISES,

Appellants.

1 CA-CR 11628

1 CA-CR 11631

(Consolidated)

DEPARTMENT C

MARICOPA County

Superior Court

No. CR-147826

ORDER and MANDATE

The opinion of this Court in the above matter

was filed on December 13, 1988.

A petition for review was filed. The record

was forwarded to the Arizona Supreme Court.

By order dated March 14, 1989, the Arizona

Supreme Court denied the petition for review,

Supreme Court No. Cr-89-0015-PR.

IT IS ORDERED in conformity with the opinion

attached hereto.

IT IS FURTHER ORDERED that a certified copy of

the foregoing ORDER and MANDATE and a copy of

the opinion of the Court were mailed to the

Clerk of the Superior Court for MARICOPA

County, Arizona, on March 17, 1989. A copy

of the ORDER and MANDATE and a copy of the

opinion was mailed to the Honorable Francis

P. Koopman, Judge, and a copy of the ORDER

and MANDATE was mailed on said day to each

party appearing or the attorneys of record;

as well as the MARICOPA County Attorney.

IT IS FURTHER ORDERED pursuant to this Court's

order of the 11th day of March, 1965, that the

Clerk of this Court return to the Clerk of the

Superior Court all records, exhibits and other

matters received from said Clerk by this Court

in aid of the consideration of this matter.

DATED March 17, 1989.

U

All of the foregoing directives

were complied with March 17, 1989.

GLEN D. CLARK, Clerk

By

te

oh Deputy ZTetk

Appendix C

Section 13-603

of

Arizona Revised Statutes

relating to

sentencing for felonies

§ 13-603. Authorized disposition of offenders

A. Every person convicted of any offense defined in this title or defined outside this

title shall be sentenced in accordance with this chapter and chapters 7, 8 and 9 of this

title’ unless otherwise provided by law.

B. If a person is convicted of an offense, the court, if authorized by chapter 9 of this

title or title 12, chapter 2, article 9,2 may suspend the imposition or execution of sentence

and grant such person a period of probation except as otherwise provided by law. The

sentence is tentative to the extent that it may be altered or revoked in accordance with

chapter 9 of this title, but for all other purposes it is a final judgment of conviction.

C. Ifa person is convicted of an offense, the court shall require the convicted person

to make restitution to the person who is the victim of the crime or to the immediate family

of the victim if the victim has died, in the full amount of the economic loss as determined

by the court and in the manner as determined by the court pursuant to chapter 8 of this

title. Restitution ordered pursuant to this subsection shall be paid to the clerk of the

court for disbursement to the victim.

D. If the court imposes probation it may also impose a fine as authorized by chapter 8

of this title.

E. If a person is convicted of an offense and not granted a period of probation, or

when probation is revoked, the following sentences may be imposed:

1. A term of imprisonment authorized by this chapter or chapter 7 of this title; or

2. A fine authorized by chapter 8 of this title. The sentence is tentative to the extent

it may be modified or revoked in accordance with chapter 8 of this title, but for all other

ce maing: hagindcie ope on gma arene ye If the conviction is of a class 2, 3 or 4

elony, the sentence cannot consist solely of a fine; or

3. Both imprisonment and a fine; or

4. Intensive probation, subject to the provisions of title 12, chapter 2, article 9; or

5. Intensive probation subject to the provisions of title 12, chapter 2, article 9, and a

fine; or

6. A new term of probation or intensive probation.

F. If an enterprise is convicted of any offense, a fine may be imposed as authorized by

chapter 8 of this title.

G. Ifa person or an enterprise is convicted of any felony, the court may, in addition to

any other sentence authorized by law, order the forfeiture, suspension or revocation of

any charter, license, permit or prior approval granted to such person or an enterprise by

any department or agency of the state or of any political subdivision.

H. A court authorized to pass sentence upon a person convicted of any offense defined

within or without this title shal] have a duty to determine and impose the punishment

prescribed for such offense.

Amended by Laws 1963, Ch. 123, § 1; Laws 1984, 1s¢ S.S., Ch. 11, § 2, eff. July 1, 1985; Laws 1984,

Ch. 128, § 1, eff. Aug. 8, 1984, and § 2, eff. July 1, 1985; Laws 1984, Ch. 124, § 1, eff. Aug. 3, 1984,

and § 2, eff. July 1, 1985; Laws 1986, Ch. 248, § 2

1 Sections 13-701 et seq., 13-801 et seq., and

2 Section 13-001 et seq. or 12-291 et seq.

Appendix D

Sections 13-3501 and 13-3502

of

Arizona Revised Statutes

relating to

definitions and elements of

felony obscenity offenses

CHAPTER 35.—OBSCENITY

Section

13-3509. Duty to report; classification.

13-3510. Evidence of obgcenity.

13-3511. Exemption; broadcasts and telecasts.

United States Supreme Court

Proof beyond reasonable doubt. Not required

in obscenity case, see California ex rel. Cooper v.

Section

13-3512. Obscene or indecent teiephone com-

munications to minors for commer-

cial purposes; violation; classifica-

tion.

181 on remand 180 Cal.Rptr. 728, 128 C.A.3d 937,

certiorari denied 103 S.Ct. 259, 459 U.S. 944, 74

L.Ed.2d 202, rehearing denied 103 S.Ct. 581, 459

Mitchell Bros.’ Santa Anna Theater (1981) 102

S.Ct. 172, 454 U.S. 90, 70 L.Ed.2d 262, rehearin

denied 102 S.Ct. 1779, 456 U.S. 920, 72 L.Ed.

U.S. 1093, 74 L.Ed.2d 940, rehearing denied 104

S.Ct. 33, 463 U.S. 1237, 77 L.Ed.2d 1453.

§ 13-3501. Definitions

In this chapter, unless the context otherwise requires:

1. “Harmful to minors” means that quality of any description or representation, in

whatever form, of nudity, sexual activity, sexual conduct, sexual excitement, or sadoma-

sochistic abuse, when both:

(a) To the average adult applying contemporary state standards with respect to what is

suitable for minors, it both:

(i) Appeals to the prurient interest, when taken as a whole. In order for an item as a

whole to be found or intended to have an appeal to the prurient interest, it is not

necessary that the item be successful in arousing or exciting any particular form of

prurient interest either in the hypothetical average person, in a member of its intended

and probable recipient group or in the trier of fact.

(ii) Portrays the description or representation in a patently offensive way.

(b) Taken as a whole does not have serious literary, artistic, political, or scientific value

for minors.

2. “Item” means any material or performance which depicts or describes sexual

activity and includes any book, leaflet, pamphlet, magazine, booklet, picture, drawing,

photograph, film, negative, slide, motion picture, figure, object, article, novelty device,

recording, transcription, live or recorded telephone message or other similar items

whether tangible or intangible and including any performance, exhibition, transmission or

dissemination cf any of the above. An item also includes a live performance or exhibition

which depicts sexual activity to the public or an audience of one or more persons. An

item is obscene within the meaning of this chapter when all of the following apply:

(a) The average person, applying contemporary state standards, would find that the

item, taken as a whole, appeals to the prurient interest. In order for an item as a whole

to be found or intended to have an appeal to the prurient interest, it is not necessary that

the item be successful in arousing or exciting any particular form of prurient interest

either in the hypothetical average person, in a member of its intended and probable

recipient group or in the trier of fact.

(b) The average person, applying contemporary state standards, would find that the

item depicts or describes, in a patently offensive way, sexual activity as that term is

described in this section.

(c) The item, taken as a whole, lacks serious literary, artistic, political or scientific

value.

3. ‘Knowledge of the character” means having general knowledge or awareness, or

reason to know, or a belief or ground for belief which warrants further inspection or _

inquiry of that which is reasonably susceptible to examination by the defendant both:

(a) That the item contains, depicts or describes nudity, sexual activity, sexual conduct,

sexual excitement or sadomasochistic abuse, whichever is applicable, whether or not there

is actual knowledge of the specific contents thereof. This knowledge can be proven by

direct or circumstantial evidence, or both.

(b) If relevant to a prosecution for violating § 13-3506 or 13-3507, the age of the

minor, provided that an honest mistake shall constitute an excuse from liability under this

chapter if the defendant made a reasonable bona fide attempt to ascertain the true age of

such minor.

4. ‘Nudity’ means the showing of the human male or female genitals, pubic area or

buttocks with less than a full opaque covering, or the showing of the female breast with

less than a fully opaque covering of any portion thereof below the top of the nipple, or the

depiction of covered male genitals in a discernibly turgid state.

5. “Sadomasochistic abuse” means flagellation or torture by or upon a person clad in

undergarments, a mask or bizarre costume, or the condition of being fettered, bound or

otherwise physically restrained on the part of one so clothed, for the purpose or in the

context of sexual gratification or abuse.

6. “Sexual activity” means:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or

perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory func-

tions, sadomasochistic abuse and lewd exhibition of the genitals.

7. “Sexual conduct” means acts of masturbation, homosexuality, sexual intercourse,

or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks or,

if such person is a female, breast.

8. “Sexual excitement” means the condition of human male or female genitals when in

a state of sexual stimulation or arousal.

9. “Ultimate sexual acts” means sexual intercourse, vaginal or anal, fellatio, cunnilin-

gus, bestiality or sodomy. A sexual act is simulated when it depicts explicit sexual

activity which gives the appearance of consummation of ultimate sexual acts.

Amended by Laws 1986, Ch. 411, § 1.

§ 13-3502. Production, publication, sale, possession and presentation of obscene

items; classification

A person is guilty of a class 5 felony who, with knowledge of the character of the item

involved, knowingly:

1. Prints, copies, manufactures, prepares, produces, or reproduces any obscene item

for purposes of sale or commercial distribution.

2. Publishes, sells, rents, lends, transports or transmits in intrastate commerce,

imports, sends or causes to be sent into this state for sale or commercial distribution or

commercially distributes or exhibits any obscene item, or offers to do any such things.

3. Has in his possession with intent to sell, rent, lend, transport, or commercially

distribute any obscene item.

4. Presents or participates in presenting the live, recorded or exhibited performance of

any obscene item to the public or an audience for consideration or commercial purpose.

Amended by Laws 1986, Ch. 411, § 2.

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CERTIFICATE OF SERVICE

Three copies of the foregoing Petition

for a Writ of Certiorari were served upon

counsel for Defendants-Respondents on

this 13th day of May, 1989, by placing

them in the U.S. Mail, first-class

postage prepaid, addressed to the

following:

ROBERT EUGENE SMITH, ESQ.

10 Universal City Plaza

Suite 1650

Universal City, California 91608

(818) 509-7270

AND

NANCY L. HINCHCLIFFE, ESQ.

101 South Central Avenue

Suite 208

Phoenix, Arizona 85004

(602) 252-3200

Attorneys for Respondents

All parties required to be served have

been served.

BRUCE A. TAYLOR VY

Counsel of Record for

Petitioner

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