Appendix — City of Mesquite v. Aladdin's Castle, Inc.

In Tue

Supreme Court

of the United States

Ocroser Term, 1980

Crry or Mesquite

Appellant,

v.

ALAbpix's Caste, INC.,

Appellee.

ON APPEAL FROM

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SUPPLEMENTAL APPENDIX TO

JURISDICTIONAL STATEMENT

James A. Exuis, Jr.

Carrinaton, CoLeMAN SLOMAN

& BLUMENTHAL

2500 South Tower

Plaza of the Americas

Dallas, Texas 75201

Attorneys for Appellant

EY ——

Bowne of Dallas Printed in U.S.A.

TABLE OF CONTENTS

Opinion of United States Court of Appeals for

, cess veces ods

Opinion of the United States District Court for the

Northern District of Te ass ͥ

Judgement of the United States District Court

for the Northern District of Texas ................

Judgment of the United States Court of

Appeals for the Fifth Cireuit (Judgment

D ⁵ð ĩò́1:B¶ͥ;‚ GAK

Order in respect of Rehea ring.

, ͤ AWA

|

ALADDIN’S CASTLE, INC., Plaintiff-

Appellant, Cross-Appellee,

V.

The CITY OF MESQUITE, Defendant-

Appellee, Cross-Appellant.

No. 77-2990.

United States Court of Appeals,

Fifth Circuit.

Nov. 17, 1980.

Rehearing and Rehearing En Banc

Denied Dec. 15, 1980.

Appeals from the United States District Court for the

Northern District of Texas.

Before AINSWORTH, VANCE and ANDERSON, Cir-

cuit Judges.

VANCE, Circuit Judge:

This case arises from Aladdin’s Castle, Inc.’s attempt to

operate a coin-operated amusement center in Mesquite,

Texas. Two questions dominate these appeals. First, did

the district court correctly rule that Mesquite’s licensing

statute for owners of coin-operated amusement centers was

unconstitutionally void for vagueness? Second, did the dis-

trict court properly sustain as constitutional a Mesquite

ordinance which barred individuals under seventeen years

of age from entering such establishments to operate the

machines unless accompanied by an adult? We affirm on

the vagueness issue. We reverse on the age limitation issue

and remand for further proceedings consistent with our

opinion.

2

I. FACTS

Aladdin’s Castle, Inc.“ owns and manages approximately

one hundred family amusement centers throughout the

United States, including three centers in Texas. Typically

located in suburban shopping areas, each Aladdin’s center

contains a variety of coin-operated amusement devices.

Adults run and supervise the patrons’ use of these centers.

Their duties include the enforcement of Aladdin’s rules

prohibiting loitering, gambling, smoking, and the consump-

tion of food, nonalcoholic drinks and alcoholic beverages

on the premises. These rules exist in all such centers oper-

ated by Aladdin’s. Aladdin's Castle also enforces a rule

that bars school children from the establishment during

school hours.

Approximately five years ago, Aladdin’s began discus-

sions with Homart, Inc., a subsidiary of Sears Roebuck and

Co., concerning the possibility of opening a coin-operated

family amusement center in the Town East Mall that

Homart was developing in Mesquite. During these negotia-

tions, Aladdin’s discovered two legal obstacles to the pro-

posed deal. First, the Town East Mall was not properly

zoned for Aladdin’s proposed business use. Second, Mes-

quite had an ordinance, No. 1103, prohibiting children

under the age of seventeen from playing coin-operated

games.”

1 Aladdin’s Castle, Incorporated was formed by Jules Millman in

1969. NN 1974 and is now owned

by Bally Manufacturing Corporation, a publicly held corporation

that is listed ou the New York Stock Exchange.

e ORDINANCE NO. cl

SECTION 3. 1 shall be unlantel for ons owner, operator or

displayer of 83 — machines 2 allow any

＋.— under the age of seventeen ears to or operate

ted 24 machine * such — is accom-

panied a parent or legal guardian.

3

After making these discoveries, representatives of

Aladdin’s attended a meeting of the Mesquite City Council.

Aladdin’s expressed its interest in opening an amusement

center in Town East. It asked whether the city would

change its zoning to allow Aladdin’s to do business in the

Town East Mall and whether the city would remove ordi-

nance No. 1103, which restricted children and young adults

from using coin-operated products and games. Aladdin’s

informed the council that unless the age restriction was

revoked it could not open a profitable center. After con-

sidering the manner in which Aladdin’s operated its amuse-

ment centers, the city council agreed to Aladdin’s requests.

The council explicitly encouraged Aladdin’s investment in

Mesquite, although it noted that Aladdin’s would not be

issued a license until it had finished building its store.

On April 5, 1976, Mesquite passed two ordinances pur-

suant to Aladdin’s requests. Ordinance No. 1314 amended

Mesquite’s comprehensive zoning ordinance to authorize the

establishment of a coin-operated amusement center at Town

East Mall.“ Ordinance No. 1310 amended ordinance No. 1103

to permit children to utilize coin-operated amusement de-

° ORDINANCE NO 1314

iON Lhe Se Sopra Zs Oreo

t i

r Bho sth day of So “and the sams

indoor commercial recreation for coin-operated amusement ma-

wi East Mall with the stipulations that the

operation is to be conducted as presented at the public hearing;

otherwise the license would be withdrawn; other stipulations

shall include that supervisors, age 25 years or older, approved

by the Chief of Police, shall be on duty at all times, and that there

r

owed on the premises.

4

vices in certain establishments.‘ The features of such

establishments were defined in terms of Aladdin’s own

policy and rules. The exempted amusement centers should,

inter alia, be located in an enclosed shopping mall and must

not “offer for sale or allow the consumption of food, drink

or other merchandise.” Ordinance No. 1310. The zoning

change, likewise, incorporated Aladdin’s council presenta-

tion: “the operation is to be conducted as presented [by

Aladdin's] at the public hearing.” Ordinance No. 1314.

Following enactment of these ordinances, Aladdin’s

entered into a ten year lease with Homart at a monthly

rental of 52,433.75.“ Aladdin’s expended an additional

$80,000 preparing its property for business.

In July 1976, after Aladdin’s had spent or committed this

sum in reliance upon the agreed legislative changes and in

anticipation of doing business, the city manager refused to

approve Aladdin’s license application. At the time, he

8 ORDINANCE NO. 1310

WHEREAS, certain patrons of major shopping centers desire

to leave their children unattended at coin-operated amusement

establishments while shopping; and

WHEREAS, coin-operated amusement establishments have

been and will be constructed that will accommodate same;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF MESQUITE, TEXAS:

SECTION I. That Chapter 5-B, Section 7, of the City Code is

hereby amended by addin the following, in all other respects to

— 1 :

Repos ee that coin-operated —— =

ma centers con an enclosed

2 being ted

shall not be LKK

a t

ender r

o Aladdin’s began pa rent to Homart, Inc., in July 1976, and,

apparently, continues doing so.

5

refused to explain his decision. Aladdin’s later discovered

that the city manager denied its application relying on

conclusions drawn by the police chief that Aladdin’s parent

company, Bally Manufacturing Company, was part of the

“mafia.” The police chief’s conclusions were based on his

department’s inquiry, which revealed that Bally and its

president had been the subject of a federal indictment in

Louisiana on charges of participation in racketeering and

gambling activities. The department’s investigation also

established that Bally and its president had been acquitted

of all charges.

The city manager cited ordinance No. 1103, amended in

other respects by ordinance No. 1310, as authority for

denying Aladdin’s license. Ordinance No. 1103 permits the

chief of police to make recommendations concerning the

licensing of coin-operated amusement centers on the basis,

inter alia, of “the applicant’s character and conduct as a

law abiding person and shall consider past operations, if

any, convictions of felonies and crimes involving moral

turpitude and connections with criminal elements.” Ordi-

nance No. 1103 (emphasis added).* According to the chief

and the city manager, Aladdin’s possessed connections with

0 ORDINANCE NO. 1103

SECTION 2. It is hereby declared to be unlawful to own,

the 85 or maintain a coin-operated amusement establishment in

City without a license issued by the City of Mesquite there

Any to obtain a license for a coin

ee ly, to the he City — be

Sar "Chil oF Foun shall be routed to the

Kue Buildin Inspector

Shania” N *

The Chief of Police shall make his recommendation based

n LR

er opera any, con

tions n 222

tions with criminal elements, taking into tion the attrac-

tion by such establishments of those of tender years.

criminal elements, specifically the mafia, through its parent,

Bally.

After receiving notice of the city manager’s action, Alad-

din's uppealed to the city council. On August 16, 1976, the

counc:it voted to affirm the city manager’s decision.’

On September 10, 1976, Aladdin’s sued for injunctive

relief in state court. On January 14, 1977, following trial,

the court ruled that ordinance No. 1103 was impermissibly

vague, general and indefinite under both the due process

clause of the fourteenth amendment of the federal consti-

tution and article 1, section 19 of the Texas constitution.

Further, Mesquite was found to have exceeded its powers

under article 11, section 5 of the Texas constitution and

articles 1165 and 1175 of the Texas Revised Civil Statutes

because it used vague and overbroad language. The state

court also held that no substantial evidence supported the

denial of a license to Aladdin’s. Indeed, it found that

neither Bally nor Aladdin’s had any connection with the

mafia or criminal elements. The court then ordered the

city to issue Aladdin’s a license immediately. The city

issued the license on January 14, after accepting the re-

quired $100 filing fee. On January 20, 1977, the city gave

notice of appeal.“

Aladdin’s once again prepared to commence business on

February 5, 1977. On February 7, however, the city passed

ager

93 t of the district court affirmed, C

of Wadde Castle, Inc., 559 §.W.2d 92 (Ter ci

oT v.

App. 1977), writ ref d n.r.e. 570 S. W. 2d 377 (Tex. 1978).

7

ordinance No. 1353, which repealed No. 1310 and Aladdin’s

exemption under the seventeen year old age restriction of

ordinance No. 1103. Ordinance No. 1353 included a new

definition of “connection with criminal elements.” “ The

city council thus reenacted the age restriction it had pre-

viously eliminated at Aladdin’s request. The earlier con-

tacts between Aladdin’s and the city council indicate that

the council knew that this change would clearly make

Aladdin’s Mesquite center unprofitable and force it to close.

In short, Mesquite achieved the result denied it by the

state court judgment.

° ORDINANCE NO. 1353

SECTION 1. That Ordinance Number 1310 of the City of

Mesquite passed on the 5th day of April, 1976, is hereby

SECTION 5. It shall be unlawful for any owner, operator or

displayer of coin-operated amusement machines to allow any

person under the age of seventeen (17) years to play or operate

a coin-operated amusement machine unless such minor is accom-

panied by a parent or legal guardian.

10 ORDINANCE NO. 1353

Connection With Criminal Elements is defined as that state of

affairs wherein an applicant, or an officer of, principal stock-

holder of, person having a substantial interest in or management

for, a corporation or other organization wherein

organization is the applicant, directly or as parent, sub-

sidiary or affiliate, has such association, acquaintance, or business

association with parties having been convicted of a felony or

crime involving moral turpitude or are otherwise involved in

unlawful activities, whether convicted or not, to the extent that

the fencing of stolen merchandise or illegally obtained funds, the

procurring [sic] of prostitutes, the transfer or sale of narcotics

or substances is made more feasible or likely or the pro-

tection of those of tender vears from such unwholesome influ-

ences are rendered more difficult.

A determination by the United States Department of Tustice

that a vartv is a member of the “mafie” or “Cosa Nostro” family

or that such party is engaged in or affiliated with a nationwide

Aladdin’s then“ sued in federal district court seeking

injunctive relief to prohibit the city from enforcing ordi-

nance No. 1353. Aladdin’s asserted that the ordinance

deprived it of various constitutional rights, including those

of property and equal protection under both the federal

and Texas constitutions. Aladdin’s subsequently amended

its complaint to include a challenge to the “connection with

criminal elements” language, including the new definitional

section added by ordinance No. 1353. Aladdin’s especially

contested the constitutionality of (1) the prohibition on the

issuance of licenses for coin-operated amusement centers to

anyone having a “connection with criminal elements,” and

(2) the age restriction on admission to such centers. On

February 11, 1977, the court entered a temporary restrain-

ing order enjoining the ordinance’s enforcement. After an

evidentiary hearing, a preliminary injunction was entered

on March 21, 1977. The case was then tried to the court on

the merits. The court held that the language “connection

with criminal elements,” as amended by ordinance No. 1353,

was unconstitutionally vague. It upheld the challenged age

restriction, however, finding it to be rationally related to a

legitimate state interest. Aladdin’s Castle, Inc. v. City of

Mesquite, 434 F.Supp. 473 (N.D.Tex.1977). Both parties

appealed to this court.

II. PRELIMINARY MATTERS

A. Subject Matter Jurisdiction

The city challenges subject matter jurisdiction, claiming

that the amount in controversy does not exceed $10,000.

This contention misses the mark.

in its m on February 4.

9

In actions seeking declaratory or injunctive relief, it is

well established that the amount in controversy is mea-

sured by the value of the object of the litigation. .

Here, that object is the right of [ Aladdin’s] . . . to conduct

their business affairs ... free from the jaterference of the

challenged statute. The value of that right is measured by

the losses that will follow from the statute’s enforcement.

Hunt v. Washington State Apple Advertising Commission,

432 U.S. 333, 347, 97 S.Ct. 2434, 2443, 53 L.Ed.2d 383 (1977)

(citations omitted). Aladdin’s claims that it would suffer a

$23,680 annual loss under the age restriction and that it

would enjoy a $20,000 annual profit without it. The district

court properly found jurisdiction.”

B. Aladdin’s Standing

Invoking Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33

L.Ed.2d 154 (1972), the city claims that Aladdin’s lacks

standing to bring a void for vagueness challenge against the

“connections with criminal elements” language of ordinance

No. 1353. It argues that Aladdin's has not been injured;

rather, Aladdin’s complaint arises “from [its] less gen-

Err 38 USC. §§ 8

that Federal question has nt been Se

8 note in this

regard tha hy v. 1 U.S. = INA.

1299 (19 9 . A

Atlanta, 57 F Sopp 8 be 3 is bt 0 (5h

1944), are not authority the propestion that a su

f question is never fle by anv municinal lation

stantive constitutional rights such as due process or taking.

er Se ne

regulate local businesses to promote general The

1

constitutions or laws of the United States and Texas.

10

eralized yet speculative apprehensiveness that the [city]

may at some future date misuse the information in some

way that would cause direct harm to [Aladdin’s].” Id. at

13, 92 S.Ct. at 2325 (footnote omitted). Aladdin’s, it further

asserts, does not complain that the city now refuses to issue

it a license or that there will ever be a dispute involving the

challenged language. See Juidice v. Vail, 430 U.S. 327,

331-33, 97 S.Ct. 1211, 1215-16, 51 L.Ed.2d 376 (1977).

This argument fails because it attempts to portray ordi-

nance No. 1353 as a nonregulatory directive. In fact, the or-

dinance is regulatory and proscriptive. To obtain a license

or to renew one, an applicant must seek the consent of five

parties, including the chief of police. The chief’s decision

whether to give a positive or negative recommendation

must, among other things, turn on the results of his inves-

tigation into “connections with criminal elements.” Ordi-

nance No. 1353 forces Aladdin’s to attempt to conform its

conduct to a vague standard in its license renewal applica-

tions for at least ten years or to suffer substantial pecu-

niary loss under its lease and in its investment in its lease-

hold. Aladdin’s, therefore, has standing to challenge the

“connections with criminal elements” language on vague-

ness grounds. Laird v. Tatum, 408 U.S. at 11, 92 S.Ct. at

2324 (plaintiff would have had standing if he “was either

presently or prospectively subject to the regulations, pro-

scriptions, or compulsions that he was challenging”).

Aladdin’s also has standing to invoke the rights of var-

ious third parties.

In this ease, .. the statute .. . inflicts on the vendor

[Aladdin's] “injury in fact” that satisfies Art. ITI’s case-

or-controversy requirement, since “[{t]he legal duties

created by the statutory sections under challenge are

addressed directly to vendors such as [[{ Aladdin’s]. It] is

obliged either to heed the statutory [prohibition], thereby

11

ineurring a direct economic injury through the constric-

tion of [its] market, or to disobey the statutory command

and suffer” legal sanctions. ... Therefore, [ Aladdin’s] is

among the “vendors and those in like positions [who]

have been uniformly permitted to resist efforts at restric-

ting their operations by acting as advocates for the rights

of third parties who seek access to their market or func-

tion.” .. . As such, [ Aladdin’s] “is entitled to assert those

concomitant rights of third parties that would be ‘diluted

or adversely affected’ should [its] constitutional chal-

lenge fail.”

Carey v. Population Services International, 431 U.S. 678,

683-84, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977) (citations

omitted).

C. Abstention

Mesquite urges us to abstain because the vagueness issue

was pending in state court when Aladdin’s instituted its

federal action. The city fails to recognize first, that Alad-

din’s originally brought its federal action to challenge

Mesquite’s seventeen year old restriction. This provision in

the present ordinance was not before the state court because

it was not adopted by the city until after it had lost on

other grounds in state court. Second, the vagueness issue

presented to the state court was different from the one

presented to this court. Mesquite had passed the second

“eonnection with criminal elements” ordinance with the

new definitional section only after the state court invali-

dated its first ordinance. In the federal suit, Aladdin’s

challenged the constitutionality of legislation enacted after

the state court proceedings commenced. Because no state

proceeding based on this new legislation is pending, see

Doran v. Salem Inn, Inc., 422 U.S. 922, 930, 95 S.Ct. 2561,

2567, 45 L. Ed. 2d 648 (1975), and because Aladdin’s need not

initiate another state proceeding which might provide a

12

remedy, see Lake Carriers’ Assn. v. MacMullan, 406 U.S.

498, 509 — 10, 92 S.Ct. 1749, 1756 — 57, 32 L.Ed. 257 (1972),

abstention is inappropriate. See Concerned Citizens of

Vicksburg v. Sills, 567 F.2d 646, 650 (5th Cir. 1978).

D. Abuse of Discretion

Mesquite claims that the district court abused its discre-

tion in allowing Aladdin’s to file its supplemental complaint

raising the vagueness and overbreadth challenges. Mesquite

contends that the court’s decision put it in the position of

going to trial unprepared or of allowing the preliminary

injunction to remain in effect.

The district court has wide discretion over supplemental

filings. Fed.R.Civ.P. 15(a). Mesquite could have requested

a continuance to avoid prejudice. In any event, we find that

the trial court did not abuse its discretion in permitting

Aladdin’s to amend its pleadings. See Zenith Radio Corp. v.

Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795,

802, 28 L.Ed.2d 77 (1971); Foman v. Davis, 371 U.S. 178,

182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

III. SUBSTANTIVE MATTERS

A. Vagueness: “Connection with Criminal Elements”

We agree with the district court that ordinance No. 1353’s

language, “connection with criminal elements,” coupled with

its definitional section and legislative policy section, see

note 10 supra, is void for vagueness under the due process

clause of the fourteenth amendment.

A law is void for vagueness if persons “of common intelli-

gence must necessarily guess at its meaning and differ as

to its application ....” Smith v. Goguen, 415 U.S. 566, 572

n.8, 94 S.Ct. 1242, 1246 n.8, 39 L.Ed.2d 605 (1974) quoting

Connally v. General Construction Co., 269 U.S. 385, 391, 46

S.Ct. 126, 127, 70 L.Ed. 322 (1926). See generally Note, The

13

Void-for-Vagueness Doctrine in the Supreme Court, 109

U.Pa.L. Rev. 67 (1960). The offense to due process lies in

both the nature and consequences of vagueness. First, vague

laws do not give individuals fair notice of the conduct pro-

scribed. Papachristou v. City of Jacksonville, 405 U.S. 156,

162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). Accord

Grayned v. City of Rockford, 408 U.S. 104, 108 & n.3, 92

S.Ct. 2294, 2298 & n.3, 33 L.Ed.2d 222 (1972). Second, vague

laws do not limit the exercise of discretion by law enforce-

ment officials; thus they engender the possibility of arbi-

trary and discriminatory enforcement. Grayned v. City of

Rockford, 408 U.S. at 108-09 & n.4, 92 S.Ct. at 2298-99 &

n. 4; Papachristou v. City of Jacksonville, 405 U.S. at 168-

70, 92 S.Ct. at 846-47. Third, vague laws defeat the intrinsic

promise of, and frustrate the essence of, a constitutional

regime. We remain “a government of laws, and not of

men,” Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163,

2 L.Ed. 60 (1803) only so long as our laws remain clear.

The definition of “connection with criminal elements”

in section 9 of ordinance No. 1353 does not remedy

the vagueness correctly found to exist by the state court.

It refers to an “association, acquaintance, or business asso-

ciation” with undesirable parties “to the extent” that cer-

tain prohibited activities are made more likely “or the

protection of those of tender years from such unwholesome

influences are rendered more difficult.” The nature of the

improper associations or acquaintances is unspecified. Nor

is it explained how an individual is to measure the extent

to which these relationships might render protection of the

young more difficult, or what degrees of “extent” and likeli-

hood are barred. The ordinance fails to “give the person of

ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.” Gray-

ned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. at 2298.

In Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83

14

L.Ed. 888 (1939), the Supreme Court struck down as uncon-

stitutionally vague a statute applying to “a member of any

gang.” The present ordinance is equally vague and uncer-

tain, and we hold that it violates due process.”

18 A law is void on its face for overbreadth if it “does not aim

at evils the [

— — na of ex

presi fe. rights. Thornhill v. eee

60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). U

Le Lene Hosts may be denid tan indlvdual engaging fn

of Sawyer o. 615 F.2d 311, 316

(Sth Cir, 1980). In Sawyer we held that e “right to freely

A U.S. 205, 216, 115

2268, 2276, 45 L. 1975) See enerally Broadric

Oklahoma, 413 U.S. 601, 925 3. . 2915-16, Wee

2d 830 (1973); Thornhill v. Alabama, 310 U.S. at 97-98, 60 S.Ct.

that exist. Shelton v. Tucker, 364 U.S. 479, 488, 81

8. ‘ 5 L.Ed.2d 231 (1960). The alleged purpose of

ordinance No. 1353 is to ensure “that proper and suitable” persons

r rotect children from those

achieved narrowly drawn rules tin

conduct. Bs v. — 615 F. ad at $17.18.

The section of the ordinance using identification by the De-

— e criminal elements raises addi-

due process lems. Use of identification by the A

8 or Communist- front organization was

down in Dombrowski v. Pfister, 380 U.S. 479, 494-96, 85 S.Ct.

1116, 1125-26, 14 L.Ed 2a 22 (1665), n

ment that the organization be identified only after comp

with proper seal saflequands. The present Mesquite ordi-

nance is lacking.

15

B. The Age Requirement

The district court reviewed the age requirement of ordi-

nance No. 1353 for constitutional purposes on a rational

basis test. It noted that the facts of this case revealed only

that:

young people congregate at such amusement establish-

ments, that several truancy arrests have been made at

such centers (none at Plaintiff’s establishment), and

that in one instance a juvenile arrested for truancy at an

amusement center was later found to be participating in

the free school lunch program.

434 F.Supp. at 477. Observing that these were “incredibly

slender reeds upon which to base [this] ordinance,” id., the

court nevertheless upheld it. We cannot say with the dis-

trict court that the ordinance’s rational basis is “incredibly

slender.” Rather, the ordinance is “arbitrary and irra-

tional.” Lindsey v. Normet, 405 U.S. 56, 79, 92 S.Ct. 862,

877, 31 L.Ed.2d 36 (1972). We hold that the seventeen year

old age requirement violates both the United States and

Texas constitutional guarantees of due process of law,“

and that the application of this age requirement to coin-

operated amusement centers violates the federal and Texas

constitutional guarantees of equal protection of the law.”

%*“[N]or shall any State deprive any person of life, liberty, or

without due process of law . . .” U.S. Const. amend.

, § 1. “No citizen of this State shall be deprived of life, liberty,

property, privileges or immunities, or in any manner disfran-

D

Const. art. I, § 19.

10 [Nor shall any State . . deny to person within its jurisdic-

tion the equal protection of lang- US. Const. amend. XIV

f 1, “All free men, when they form a social compact, have equal

16

1. Rational Basis

Assuming that the rational basis test is the appropriate

standard of review, we conclude that no such rationality

supports ordinance No. 1353. The test requires that legis-

lative action be rationally related to the accomplishment of

a legitimate state purpose. First, the challenged legislation

must have a legitimate public purpose based on promotion

of the public welfare, health or safety. See, e.g., Rinaldi v.

Yeager, 384 U.S. 305, 309-10, 86 S.Ct. 1497, 1499-1500, 16

L.Ed.2d 577 (1966); Falfurrias Creamery Co. v. City of

Laredo, 276 S.W.2d 351 (Tex.Civ.App.1955, writ ref’d n.

r.e.). Second, the act taken must bear a rational relation to

the end it seeks to further. See, e.g., Griswold v. Connecti-

cut, 381 U.S. at 505-07, 85 S.Ct. at 1693-94 (White, J., con-

eurring); Schware v. Board of Bar Examiners, 353 U.S.

232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); City of

University Park v. Benners, 485 S.W.2d 773, 778-79 (Tex.

1972), appeal dismissed 411 U.S. 901, 93 S.Ct. 1530, 36

L.Ed.2d 191 (1973).

The requirement of legislative rationality in the service

of legitimate purposes protects individuals and their liber-

ties from official arbitrariness or unthinking prejudice. As

one commentator noted, irrationality at least means “pa-

tently useless in the service of any goal apart from whim

or favoritism.” Michelman, Politics and Values or What's

Really Wrong with Rationality Review? 13 Creighton Law

Review 487, 499 (1979). The test requires that legislation

constitute a means that is “reasonable, not arbitrary and

rests ‘upon some ground of difference having a fair and

substantial relation to the object of the legislation... “

Texas Woman’s University v. Chayklintaste, 530 S.W.2d

927, 928 (Tex. 1979), citing Reed v. Reed, 404 U.S. 71, 76,

92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971). Accord, United

States Department of Agriculture v. Moreno, 413 U.S. 528,

93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) ; James v. Strange, 407

U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Jackson v.

17

Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972);

Stanley o. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d

551 (1972); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029,

31 L.Ed.2d 349 (1972).

Examination of ordinance No. 1353 reveals two stated

purposes. First, the ordinance seeks to prevent truancy.

Second, it seeks to keep minors from being exposed to

people “who would promote gambling, sale of narcotics and

other unlawful activities.” We conclude that the seventeen

year old requirement in no way rationally furthers these

interests in regulating the associational activity of Mes-

quite’s young citizens, even making the assumption that

both of these goals are legitimate.

(a) Truancy

The decision to bar all people under seventeen years of

age, whether or not they are required to be in a school,

Tex. Edue. Code Ann. §§ 21.032, 21.033 (Vernon) (1972 &

Supp.1980), from all coin-operated amusement centers at

all times is patently irrational. See, e. g., Stanley v. Illinois,

405 U.S. at 652-59, 92 S.Ct. at 1213-1216. Barring young

people from using coin-operated amusement devices at

times and on days when school is closed simply bears no

relation whatever to the city’s alleged interest in elimi-

nating truancy. See Eisenstadt v. Baird, 405 U.S. at 447-52,

92 S.Ct. at 1035-1037 (contrived purpose evidenced by irra-

tionality). The regulation instead evidences the city’s dis-

approval of such centers in general or of Aladdin’s owners

in particular. See Orr v. Orr. 440 U.S. 268, 280 n.10, 99

S.Ct. 1102, 1112 n.10, 59 L.Ed.2d 306 (1979). Such dis-

approval may justify private action, such as the with-

holding of patronage, but mere disapproval is not enough

constitutionally to justify bringing the full weight of the

municipality’s regulatory apparatus into play.

18

By the same token, the regulation denies Aladdin’s equal

protection of the laws. Just as the “all hours” restriction

is grossly overinclusive, the limitation of that restriction to

coin-operated amusement centers is equally underinclusive.

Before such centers existed, children found places and

opportunities for truancy, and they would find places were

such centers to become extinct. Singling out coin-operated

amusement centers from all other establishments is an act

of discrimination, not policy.

Traditional equal protection analysis does not require

that every classification be drawn with precise mathe-

matical nicety.’” . . . But the classification here in issue

is not only “imprecise,” it is wholly without any rational

basis.

United States Department of Agriculture v. Moreno, 413

U.S. at 538, 93 S.Ct. at 2827 (citation omitted).

(b) Exposure to Corrupting Influences

The record is entirely devoid of evidence that a person

under seventeen years of age has been exposed to a person

“who would promote gambling, [the] sale of narcotics

and other unlawful activities” while in a coin-operated

amusement center in Mesquite. The district court recogniz-

ed, as we do, that the city presented no evidence that

such people ever come to these centers. Initially, therefore,

we note that the city failed to demonstrate any need which

would give rise to an interest in protecting its young

citizens from corrupt influences in amusement centers.

If such people do go to the centers, there is no evidence

that they are drawn by the machines. They are instead

drawn by the presence of those whom they perceive of as

potential victims. The city did not show that barring chil-

dren from these centers would in any way stop these people

from associating with children. Logic indicates that they

would merely follow the barred children to other places of

19

congregation such as the schoolyard, the nearby street

corner, the movies, the local fast food establishment, the

parking lot, the concert, the park, or the beach. The city’s

regulation thus does not even further its stated goal of

protecting minors from exposure to malefactors. Cf., Eisen-

stadt v. Baird, 405 U.S. at 442 n.3, 92 S.Ct. at 1033 n.3

(legislation “has no deterrent effect”). Mesquite’s goal of

keeping minors from being exposed to undesirable people

could not, therefore, be served by an absolute ban on access

to coin-operated amusement centers, unless such a ban were

accompanied by bans on access to every other place of

congregation. Certainly such an approach would imper-

missibly destroy freedom. If a malefactor is to be preclud-

ed from malefaction, the city must bar the act or must seek

to educate potential victims and perpetrators. Whitney v.

California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed.

1095 (1927) (Brandeis, J., concurring). Barring association

in places, on the other hand, does not permissibly further

an end of precluding conduct which might occur in those

places. Cf. Medora v. Colautti, 602 F.2d 1149, 1155 n.14

(3d Cir. 1979) (“Just as the intentional harming of a group

is not a legitimate goal, so too the intentional harming of a

group to further some other governmental! interest is not

a rational means to further that other interest”). A grossly

overinclusive and irrational ban will not pass constitutional

muster. F. S. Royster Guano Co. v. Virginia, 253 U.S. 412,

415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920). As the city must

acknowledge, the supposed evil does not inhere in mere

simultaneous presence.“

ee te relies on M: 3838

Ar 1912), 1 i eag ege

much late tes we de we

regulate 34 they regulate ordi-

ey ee poe a of 5

lative notice of the idleness 5

2. Strict Scrutiny

Even if the challenged ordinance had a rational basis

and a legitimate purpose, we would nevertheless be com-

pelled to strike it down. The challenged age restriction im-

permissibly trammels fundamental personal rights. By its

actions, Mesquite has denied individuals under seventeen

years of age their liberty interests in association. Since

this denial neither furthers “a sufficiently important inter-

est [nor] employs means closely drawn to avoid unneces-

sary abridgement of associational freedoms,” Buckley v.

Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659

(1976), the ordinance is unconstitutional.

32 S.Ct. at 698. This view of idleness has been rejected by the

Supreme Court:

All loiterin - rn

public

mental to welfare . It may be and often is

entirely

N. NV v. City 4 e 405 U.S. 150, 157 n.2, 92

S.Ct. 839, 841 n.2, 31 L.Ed. 2d 110 (1972) (quoting Lazarus v.

Faircloth, 301 ＋ 266, 272 3 1969)); see 8

nnati, 402 t. 1

Coates v. C S. 611, 615-16, 91 8 ‘

1689, 29 L. 214 (1971). Today, Murphy stands only for the

proposition that

The States have the power to make a morally neutral judgment

that 1 has 1 * the —

as a to r ublic safety, or to

in Mr. Chief Justice Warren's ener the Sates my et

a decent .” Jacobellis v. Ohio, 378 U.S. [184]

at 199, “ S.Ct. 1676 at 1684, 12 L.Ed.2d 793 [1964] (dissenting

Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628,

2641, 37 L.Ed.2d 446 (1973). As we have already shown, Mes-

quite’s ordinance is simply not rationally related to this legitimate

purpose. Even Murphy rejects ordinances when

looking through mere forms and at the substance of the matter,

... the statute enacted professedly to protect the public morals

has no real or substantial relation to object, but is a clear,

unmistakable infringement of rights secured by the funda-

mental law.

on v. California, 225 U.S. at 630, 32 S.Ct. at 699 (citation

21

(a) Association

The right of association is fundamental. See, e. g., Rich-

mond Newspapers Inc. v. Virginia, —— U.S. —, —,

100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (plurality opin-

ion); NAACP v. Button, 371 U.S. 415, 430, 83 S.Ct. 328,

336, 9 L.Ed.2d 405 (1963); Sotto v. Waimoright, 601 F.2d

184, 191 (5th Cir. 1979), cert. denied, 445 U.S. 950, 100 S.Ct.

1597, 63 L.Ed.2d 784 (1980). The right to associate freely

and “‘to go where one pleases’” is a protected freedom

under the first amendment and a substantive guarantee of

fourteenth amendment due process. Sawyer v. Sandstrom,

615 F.2d at 316 (quoting Bykofsky v. Borough of Middle-

town, 401 F.Supp. 1242, 1254 (M.D.Pa.1975), af d, 535

F.2d 1245 (3rd Cir.), cert. denied, 429 U.S. 964, 97 S.Ct.

394, 50 L.Ed.2d 333 (1976)); see Sotto v. Wainwright, 601

F. 2d at 190-91. The right of free association protects associ-

ational activities directed at a plethora of ends, Griswold v.

Connecticut, 381 U.S. at 483, 85 S.Ct. at 1681; Sawyer v.

Sandstrom, 615 F.2d at 316, including political, e. g., Buck-

ley v. Valeo, 424 U.S. at 22, 96 S.Ct. at 636, economic,

UMW v. Illinois State Bar Association, 389 U.S. 217, 221-

25, 88 S.Ct. 353, 355-57, 19 L.Ed.2d 426 (1967), familial,

e. g., Moore v. City of East Cleveland, 431 U.S. 494, 97

S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), inti-

mate, e. g., Griswold v. Connecticut, 381 U.S. at 486, 85 S.Ct.

at 1682; see Karst, The Freedom of Intimate Association,

89 Yale L.J. 624 (1980); see generally Raggi, An Indepen-

dent Right to Freedom of Association, 12 Harv.C.R.-C.L.

L.Rev. 1 (1977). The Supreme Court has never ruled direct-

ly on the application of the right of association in a social

context such as the present one. However, the Court in

dicta has endorsed a right of social association, Gilmore v.

City of Montgomery, 417 U.S. 556, 575, 94 S.Ct. 2416, 2427,

41 L.Ed.2d 304 (1974) (quoting Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 179-80, 92 S.Ct. 1965, 1974, 32 L.Ed.2d

627 (1972) (Douglas, J., dissenting)), and this circuit has

held that even associating on street corners is “constitu-

tionally protected conduct,” Sawyer v. Sandstrom, 615 F.2d

at 317; cf. Robinson v. Reed, 566 F.2d 911, 913 (5th Cir.

1978) (public employee could make constitutional claim

if required to disclose facts about home life or associa-

tions). These precedents control the present case.

Restraining association is therefore not a legitimate

governmental purpose, absent a compelling state interest

to warrant such restraint. Regulations affecting funda-

mental rights of association, but aimed at nonassociational

evils, are allowable under certain circumstances. To be

constitutional, however, the regulation must at least be

nondiscriminatory, must not “unnecessarily burden or re-

strict constitutionally protected activity,” Dunn v. Blum-

stein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274

(1972), must be drawn with “[p]recision,” NAACP v.

Button, 371 U.S. at 438, 83 S.Ct. at 340, must be “tailored,”

Shapiro v. Thompson, 394 U.S. 618, 631, 89 S.Ct. 1322, 1329,

22 L.Ed.2d 600 (1969), to accomplish its legitimate objec-

tives, and must not be the most restrictive method of regu-

lation if other, “less drastic means” are availabie, Shelton

v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d

231 (1960).

(b) Regulation of Minors

We do not doubt that the state may have a legitimate

interest in protecting young people from certain unhealthy

influences. Yet “a governmental purpose to control or pre-

vent activities constitutionally subject to state regulation

may not be achieved by means which sweep unnecessarily

broadly and thereby invade the area of protected free-

doms.” NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct.

1302, 1313, 12 L.Ed.2d 325 (1964); Sawyer v. Sandstrom,

615 F.2d at 316 (association as one such protected

freedom).

23

Mesquite’s interest in shielding young people from unde-

sirable influences may be achieved in other ways. Activities

such as gambling with children or selling them drugs can

be criminalized and vigorously prosecuted.“ The ordinance

before us, however, sweeps too broadly and cannot be

justified under our Constitution. [The deterrents ordi-

narily to be applied to prevent crime are education and

punishment for violations of the law, not abridgement of

the rights of free speech and assembly.” Whitney v. Cali-

fornia, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095

(1927) Brandeis, J., concurring).

The standard that the ordinance must meet is not reduced

because minors are involved. “A child, merely on account of

his minority, is not beyond the protection of the Constitu-

tion.” Bellotti v. Baird 443 U.S. 622, 633, 99 S.Ct. 3035, 3043,

61 L.Ed.2d 797 (1979) (Powell, J., joined by Burger, C. J.

& Stewart & Rehnquist, J.J.). Minors “are possessed of

fundamental rights which the State must respect.” Tinker

v. Des Moines Independent Community School District, 393

U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969).

Neither the Fourteenth Amendment nor the Bill of

Rights ie for adults alone.” In re Gault, 387 U.S. 1, 13, 87

S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). Accord, Planned

Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831,

2843, 49 L.Ed.2d 788 (1976). See generally Developments in

the Law — The Constitution and the Family, 93 Harv.L.

Rev. 1156, 1358-77 (1980).

In some cases to be sure, the state may have greater

power to regulate conduct that is otherwise constitutionally

protected if the regulation applies only to children. This

“somewhat broader authority to regulate the activities of

children than adults,” Planned Parenthood v. Danforth,

17 We do not intimate by our that Mesquite cannot

T with establishments hich

alcoholic beverages or illicit drugs.

428 U.S. at 74, 96 S.Ct. at 2843, is warranted only if a

special circumstance of youth creates a unique danger to

minors which presents the state with an interest in regu-

lating their activities that does not exist in the case of

adults. Ginsberg v. New York, 390 U.S. 629, 638-41, 88 S.Ct.

1274, 1279-81, 20 L.Ed.2d 195 (1968); Prince v. Massachw-

setts, 321 U.S. 158, 169-70, 64 S.Ct. 438, 443-444, 88 L. Ed.

645 (1944). Control and restraint by the state, which would

otherwise be intolerable under our Constitution may be

justified if the regulation serves a “ ‘significant state

interest.. that is not present in the case of an adult,““

which arises from the fact of youthful vulnerability to

harm. Carey v. Population Services International, 431 U.S.

678, 693, 97 S.Ct. 2010, 2020, 52 L.Ed.2d 675 (1977) citing

Planned Parenthood v. Danforth, 428 U.S. at 75, 96 S.Ct. at

2843).

In Bellotti v. Baird, 443 U.S. at 633-39, 99 S.Ct. at 3035-

46, Justice Powell set out for himself and three other

Justices three reasons which in some circumstances might

permit the state to restrain minors in a way which would

be unconstitutional if applied to adults:

the peculiar vulnerability of children; their inability to

make critical decisions in an informed, mature manner;

and the importance of the parental role in child-rearing.

Id. at 634, 99 S.Ct. at 3043. These reasons may be viewed as

threshold criteria. If Mesquite’s ordinance were based on

any of them, we would be required to determine the

strength of the support provided, its relation to the ordi-

nance as a whole, and the extent, if any, to which it might

serve to justify any special restraints on the associational

rights of minors. Neither the Supreme Court nor this circuit

has set forth the appropriate standards under which such

an inquiry would be conducted. We need not undertake to

resolve this matter here, since none of Justice Powell’s

factors even remotely apply to the present ordinance.

There is no issue of special vulnerability presented in

this case. Justice Powell limited his discussion of this

factor to juvenile criminal proceedings, where the special

needs of children have served as a basis for distinguishing

certain aspects of procedural due process from adult cases.

Compare In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L.Ed.2d

527 (1967) with McKeiver v. Pennsylvania, 403 U.S. 528,

91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Even extending the

vulnerability rationale to its broadest extent, it is impossi-

ble to conclude that a coin-operated amusement device

presents a physical, mental, or moral threat under which

“the State is entitled to adjust its legal system to account

for children’s vulnerability and their needs for ‘concern,

. +» Sympathy, and... paterna! attention,’” Bellotti v.

Baird, 443 U.S. at 635, 99 S.Ct. at 3044, citing McKeiver v.

Pennsylvania, 403 U.S. at 550, 91 S.Ct. at 1988 (plurality

opinion). That Mesquite may disapprove of Aladdin's

Castle is hardly a sufficient justification for invoking “the

peculiar vulnerability of children.” Associations “cannot be

suppressed solely to protect the young from ideas or images

that a legislative body thinks unsuitable for them.”

Erenoenik v. City of Jacksonville, 422 U.S. 205, 213-14, 95

8. Ct. 2268, 2274-75, 45 L.Ed.2d 125 (1975).

The irrelevance of the “critical decision” rationale is

manifest on its face. To suggest that minors be permitted

to express their views on divisive public issues, Tinker

v. Des Moines Independent School District, and to secure

abortions without parental consent, Bellotti v. Baird,

Planned Parenthood v. Daxjorth, but that they can be

barred from making the “critical decision” of whether or

not to deposit a quarter in a coin-operated amusement

devise is not a proposition that deserves serious

consideration.

As for Justice Powell’s third element, the role of parents,

clearly this concern militates against the ordinance, not for

it. Even if youthfulness is relevant in the case before us,

parents, not the state, should decide whether their children

are to enter coin-operated amusement centers. The state

may not burden parents who decide to allow their children

to enter the centers by requiring these parents to accom-

pany their children. If a parent would rather shop or work

and decides to trust Aladdin’s personnel or the child, that

is the parent’s prerogative.

The history and culture of Western civilization reflect a

strong tradition of parental concern for the nurture and

upbringing of their children. This primary role of the

parents in the upbringing of their children is now estab-

lished beyond debate as an enduring American tradition.

Wisconsin v. Yoder, 406 U.S, 205, 232, 92 S.Ct. 1526, 1541,

32 L.Ed.2d 15 (1972). Accord, Parham v. J. R., 442 U.S. 584,

602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979). Thus for

minors as for adults, the ordinance impermissibly and un-

constitutionally infringes on freedom of association.

3. Concluding Remarks

Aside from the constitutional issues we have already con-

sidered, we note that the record before us presents a very

unpleasant story. We suggest, although we do not decide,

that there are limits on the powers of municipalities to

induce businessmen to expend vast sums of money, then,

without any changed circumstances, to enact legislation

which destroys the value of that expenditure. This is espe-

cially true if (1) the business, acting in good faith and with

full disclosure, informs the municipality of its plans, (2)

the municipality encourages the business in a significant

manner, such as by amending existing legislation, (3) the

business detrimentally relies on that encouragement, and

27

(4) no conditions, including the composition of the city

council and the local political climate, have changed. In

this case, Aladdin’s knew that it was not guaranteed a

license, but Aladdin’s could not know that the city would

reinstate its age restriction immediately after Aladdin’s

had undertaken substantial expenditures and contractual

commitments. Aladdin’s could only anticipate enforcement

of the “connection with criminal elements” provision. Given

our disposition of this case on cther grounds, we need not

decide whether Mesquite’s actions exceed any constitutional

restraint such as takings, contract impairments or due

process. We should not, however, be understood as express-

ing tacit approval of Mesquite’s actions in this matter.

Our dissatisfaction with this situation, however, extends

beyond the specific incidents of this case to the entire ap-

proach to governmental regulation of personal liberty of

which Mesquite’s ordinance is but a sample. We certainly

have no wish to challenge the legitimacy of many, even

most of the statutes, ordinances and regulations issued by

the innumerable legislatures and agencies in our modern

and complex society. The era of Lochner v. New York, 198

U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), is happily long

ended. Nevertheless, recognition of the multiple problems

and + eds of our contemporary world does not oblige us to

discard the basic principles of constitutional government

to which we have always been committed.

The purpose of the Constitution and Bill of Rights

was to take government off the backs of people... . This

is the philosophy of Jefferson that It Ihe opinions of

men are not the object of civil government, nor under its

jurisdiction .... [I]t is time enough for the rightful pur-

poses of civil government for its officers to interfere when

principles break out into overt acts against peace and

good order... .”

Schneider v. Smith, 390 U.S. 17, 25, 88 S.Ct. 682, 686, 19

L.Ed.2d 799 (1968) (quoting A Bill for Establishing Re-

ligious Freedom, Jeffersonian Cyclopedia 976 (1900) ).

The original documents on which our law is based contain

stated concerns about the necessary diffusion of power-

separating, dividing and checking governmental powers.

The framers created limits on government and, concomi-

tantly, a realm within which individuals and groups could

function with autonomy. This realm need not have been

defined exhaustively by specific guarantees; its parameters

were defined indirectly by the constraints placed on govern-

ment and the recognition that these rights were to be avail-

able to all equally. Over time we have recognized that

governmental power must not be too diffuse, but we have

also seen that the changes mandated by this recognition

need not stand at odds with our constitutional commitment

to personal autonomy, if we merely articulate what is impli-

cit in our law.

As Chief Justice Burger has recently reminded us,

[Certain unarticulated rights are implicit in enumer-

ated guarantees. For example, the rights of association

and of privacy, the right to be presumed innocent and the

right to be judged by a standard of proof beyond a rea-

sonable doubt in a criminal trial, as well as the right to

travel, appear nowhere in the Constitution or Bill of

Rights. Yet these important but unarticulated rights have

nonetheless been found to share constitutional protection

in common with explicit guarantees. . . . [F]undamental

rights, even though not expressly guaranteed, have been

recognized ... as indispensable to the enjoyment of rights

explicitly defined.

Richmond Newspapers, Inc. v. Virginia, _— U.S. at,

100 S.Ct. at 2829 (Burger, C. J., plurality opinion joined by

29

Stevens & White, JJ.) (footnotes omitted). We have reached

a similar conclusion on numerous occasions. See e.g., Sotto

v. Wainwright, 601 F.2d 184, 190-91 (5th Cir. 1979), cert.

denied, U.S. , 100 S.Ct. 1597, 63 L.Ed.2d 784

(1980); St. Ann v. Palisi, 495 F.2d 423, 425 (5th Cir. 1974).

Doctrinally, this recognition of fundamental liberties de-

rives in part from the ninth amendment, Richmond News-

papers, Inc. v. Virginia, _—- U.S. at — n.15, 100 S.Ct.

at 2829 n.15 (plurality opinion); Stanley v. Illinois, 405

U.S. at 651, 92 S.Ct. at 1212; Griswold v. Connecticut, 381

U.S. at 488-93, 85 S.Ct. at 1683-84 (Goldberg, J., concur-

ring, joined by Warren, C. J. & Brennan, J.), in part by due

process, Moore v. City of East Cleveland, 431 U.S. 494,

501-03, 97 S.Ct. 1932, 1936-37, 52 L.Ed.2d 531 (1977) (plu-

rality opinion); Meachum v. Fano, 427 U.S. 215, 230, 96

S.Ct. 2532, 2541, 49 L.Ed.2d 451 (1976) (Stevens, J., dis-

senting) ; Griswold v. Connecticut, 381 U.S. at 501, 85 S.Ct.

at 1690 (Harlan, J., concurring), and in part from the basic

principles of our system, Richmond Newspapers, Inc. v. Vir-

ginia, _— US. at , 100 S.Ct. at 2828-29 (plurality

opinion); Nevada v. Hall, 440 U.S. 410, 432-34, 99 S.Ct.

1182, 1194-95, 59 L.Ed.2d 416 (1979) (Rehnquist, J., dis-

senting); San Antonio Independent School District v. Rod-

riquez, 411 U.S. 1, 102-03, 93 S.Ct. 1278, 1332, 36 L.Ed.2d

16 (1973) (Marshall, J., dissenting). Whatever the source,

all go to support “[t]he fundamental theory of liberty upon

which all governments in this Union repose.” Pierce v. So-

ciety of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69

L.Ed. 1070 (1925).

Liberty must be examined as a principle or cimmitment,

if we are to avoid “the tyranny of labels,” which Mr. Justice

Cardozo characterized as [a] fertile source of perversion

in constitutional theory.” Snyder v. Massachusetts, 291

US. 97, 114, 54 S.Ct. 330, 335, 78 L.Ed. 674 (1934). Accord,

Doe v. Bolton, 410 U.S. 179, 210-11, 93 S.Ct. 739, 757, 35

30

L.Ed.2d 201 (1973) (Douglas, J., concurring) (the specific

liberty interests found implicit in the liberty guaranteed

by the fifth and fourteenth amendments elaborate “the

Blessings of Liberty” promised in the Constitution’s pre-

amble). Liberty stands for the idea that the government

exists to serve the individual, not that the individual exists

to be subservient to the government or to a majority that

controls government. The idea of liberty rejects govern-

mental regimentation encompassing virtually every facet

of the citizen’s life. West Virginia State Board of Educa-

tion v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87

L.Ed. 1628 (1943). Our governmental system is “built upon

postulates of respect for the liberty of the individual.” Poe

v. Uliman, 367 U.S. 497, 542, 81 S.Ct. 1752, 1776, 6 L. Ed. 2d

989 (1961) (Harlan, J., dissenting). See, e.g., Moore v. City

of East Cleveland, 431 U.S. at 503, 97 S.Ct. at 1937 (Powell,

J., plurality opinion).

“(Liberty” . . . is not confined to mere freedom from

bodily restraint. Liberty under law extends to the full

range of conduct which the individual is free to pursue,

and it cannot be restricted except for a proper govern-

mental objective.

Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694,

98 L.Ed. 884 (1954).

That we are dealing with minors here does not alter our

conclusions.

In order to submerge the individual and develop ideal

citizens, Sparta assembled the males at seven into bar-

racks and intrusted their subsequent education and

training to official guardians. Although such measures

have been deliberately approved by men of great genius,

their ideas touching the relationship between individual

and State were wholly different from those upon which

our institutions rest; and it hardly will be affirmed that

31

any Legislature could impose such restrictions upon the

people of a State without doing violence to both letter

and spirit of the Constitution.

Meyer v. Nebraska, 262 U.S. 390, 402, 43 S.Ct. 625, 627, 67

L.Ed. 1042 (1923).

It is not the courts alone who are bound to safeguard

these freedoms. Executives and legislature, from the na-

tion’s capital to the smallest village, and most of all the

people themselves, are called upon by our Constitution to

respect, enforce and cherish these principles of liberty and

personal autonomy.

The makers of our Constitution undertook to secure con-

ditions favorable to the pursuit of happiness. They

recognized the significance of man’s spiritual nature, of

his feelings and of his intellect. They know that only a

part of the pain, pleasure and satisfactions of life are to

be found in material things. They sought to protect

Americans in their beliefs, their thoughts, their emotions

and their sensations. They conferred, as against the

Government, the right to be let alone — the most compre-

hensive of rights and the right most valued by civilized

men.

Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564,

572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) (em-

phasis added).

In summary, we affirm the district court’s holdings that

jurisdiction exists, and that the portion of ordinance 1353

using and defining the term “connection with criminal ele-

ments” is void for vagueness. On the seventeen year old

age requirement of the ordinance, we reverse, holding that

it is constitutionally offensive and that plaintiff is entitled

to the injunctive relief sought. We remand in order that the

district court may modify its judgment to that effect.

AFFIRMED IN PART; REVERSED AND REMAND.

ED IN PART.

ALADDIN’S CASTLE, INC.

v.

The CITY OF MESQUITE.

No. CA 3-77-0194-C.

United States District Court,

N. D. Texas,

Dallas Division.

June 29, 1977.

MEMORANDUM OPINION

WILLIAM M. TAYLOR, Jr., District Judge.

Aladdin’s Castle, Inc. (hereafter, A.C.I.), a corporation

engaged in the business of owning and managing coin-

operated amusement centers in various sections of the na-

tion, brought this action seeking declaratory and injunctive

relief from the enforcement of an allegedly unconstitutional

ordinance of the City of Mesquite which (1) prohibits

issuance of a license for a coin-operated amusement center

to anyone having a “connection with criminal elements,”

and (2) restricts admission to coin-operated amusement

centers to individuals age 17 or above. On February 11,

1977, this Court entered a temporary restraining order

enjoining enforcement of such ordinance. After an eviden-

tiary hearing, a preliminary injunction was entered on

March 21, 1977. On June 10, 1977, the case was tried to the

Court on the merits. For the reasons set forth below, this

Court is of the opinion that those provisions of the ordi-

nance purporting to deny a license to applicants who have

a “connection with criminal elements” are unconstitution-

ally vague and overbroad. We are unable to say, however,

that the challenged age restriction raises any Federal

constitutional issue.

33

This action arises from the on-again, off-again legislative

activity of the Mesquite City Council. In 1973, the Council

enacted Ordinance No. 1103 which required licenses for

coin-operated amusement establishments and limited access

to such establishments to individuals 17 years of age or

above. Individuals under age 17 were permitted access only

if accompanied by parent or guardian. In 1976, A.C.L,

through its president, approached officials of the City with

respect to its interest in opening an amusement center at

the Town East Mall within the city limits of Mesquite.

A.C.I. owns and operates approximately one hundred other

amusement centers at major shopping malls in metropolitan

centers throughout the nation and has, as its mode of

operation, the practice of keeping an adult manager on

duty at all times in its stores to enforce its rules against

gambling, smoking, and consumption of food and beverages

on the premises. Apparently in consideration of the fact

that A.C.I. operates what might be called a “high-class”

amusement establishment and that A.C.I.’s president ex-

pressed a disinclination to open an amusement center at

Town East Mall because of the age restriction, the Mesquite

City Council, on April 5, 1976, enacted two ordinances to

make operation of an amusement center at Town East

more attractive to Plaintiff.

The April 5, 1976, ordinances first amended the Compre-

hensive Zoning Ordinance of Mesquite to authorize estab-

lishment of a coin-operated amusement center at Town

East Mall; and second, amended the 1973 amusement center

ordinance by exempting from the 17-year-old age restric-

tion those:

“coin-operated establishments located in major shopping

centers containing an enclosed mall and said establish-

ments being operated only during the hours said mall is

open and having no outside entrance and where said

34

establishment does not offer for sale or allow the con-

sumption of food, drink or other merchandise . .”

The April 5, 1976, ordinance, No. 1310, required only that

children under the age of 7 years be accompanied by parent

or guardian.

Upon enactment of these ordinances on April 5, 1976,

A.C.I. commenced to prepare for operation of a center at

Town East by entering into a lease agreement with Homart

Corporation, owner of the shopping center, and by invest-

ing approximately $80,000 in leasehold improvements. In

July of 1976, A.C.I. proceeded to file its application for a

license only to have such application denied by the City

Manager upon the unfavorable recommendation of the

Chief of Police.

Apparently, between April of 1976, when the City Council

modified its zoning and amusement center ordinances, and

July of 1976, when A. C. I. filed its license application, police

investigation revealed that 100% of the stock of A.C.I. was

owned by Bally Manufacturing Co., a corporation engaged

in the manufacture and sale of coin-operated amusement

machines. The Bally Manufacturing Co. and its president

had at one time been the subject of a Federal criminal

indictment in Louisiana charging participation in racketeer-

ing and gambling activities; upon trial, Bally and its presi-

dent were acquitted of the charges. The police also appear

to have information to the effect that Bally Manufacturing

Co. is somehow linked to the “mafia” or the “Cosa Nostra.”

As of July of 1976, the ordinance then in effect, No. 1103,

as amended by No. 1310, provided for denial of a license to

applicants who had “a connection with criminal elements.”

After denial of the license application by the City Man-

ager, A.C.I. appealed the matter to the City Council which

on August 16, 1976, affirmed the City Manager’s decision.

On September 10, 1976, A.C.I. filed a petition in State court

35

seeking an injunction requiring issuance of a permit to

operate an amusement center at Town East Mall. Upon

trial to the District Court of Dallas County, 95th Judicial

District, a final judgment was entered on January 14, 1977,

granting A.C.I. the relief prayed for. The State court con-

cluded as a matter of law that the ordinance then in effect,

No. 1103, was unconstitutional under the 14th Amendment

of the Constitution of the United States and that such ordi-

nance was also repugnant to Article 1, Sec. 19 of the Con-

stitution of the State of Texas in that the use of the words

“connection with criminal elements” are so vague, general

and indefinite as to deny A.C.I. due process of law. The

State court further found that the City’s denial of A.C.I.’s

application was not supported by substantial evidence that

A.C.I. has any connection with criminal elements.

In compliance with the State court judgment, the City

duly issued a license to A.C.I. on January 14, 1977, and

proceeded to appeal the State court judgment. A.C.I. opened

its amusement center on February 5, 1977. On February 7,

1977, the City Council met and enacted Ordinance No. 1353

repealing Ordinance No. 1310 which had created the excep-

tion from the 17-year old restriction discussed earlier. The

February 7, 1977, Ordinance went on to attempt to reha-

bilitate the original amusement center ordinance by adding

a definition of the term “connection with criminal elements.”

The definition added on February 7, 1977, is as follows:

“Connection with Criminal Elements is defined as that

state of affairs wherein an applicant, or an officer of,

principal stockholder of, person having a substantial

interest in or management responsibility for, a corpora-

tion or other organization wherein such organization is

the applicant, directly or as parent, subsidiary or affiliate,

has such association, acquaintance, or business associa-

tion with parties having been convicted or not, to the

extent that the fencing of stolen merchandis¢ or illegally

obtained funds, the procuring of prostitutes, the transfer

or sale of narcotics or illegal substances is made more

feasible or likely or the protection of those of tender

years from unwholesome influences are rendered more

difficult.

A determination by the United States Department of

Justice that a party is a member of the ‘mafia’ or ‘Cosa

Nostra’ family or that such party is engaged in or

affiliated with a nationwide crime organization, whether

formally or informally, shall be prima facie evidence, so

far as the issuance of a license hereunder, that such

person has ‘connections with criminal elements’ and con-

stitute, within the meaning of this ordinance, ‘criminal

elements.“

Upon learning of the enactment of the February 7, 1977,

ordinance A.C.I. filed the instant action seeking injunctive

and declaratory relief.

The initial challenge interposed by the Defendant goes

to the question of subject matter jurisdiction; specifically,

the City claims that less than $10,000 is in controversy. We

believe the correct rule for determining damages is as

follows:

“Where a business is threatened ... by a regulatory

statute ... the amount in controversy is the difference

between the value of the business unregulated ... and its

value under the regulation

C. A. Wright, Law of Federal Courts, Ch. 5, § 33, (3rd Ed.

1976), [citing McNutt v. General Motors Acceptance Corp.

of Ind., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) and

KVOS, Inc. v. Associated Press, 299 U.S. 269, 57 S.Ct. 197,

81 L.Ed. 183 (1936)]. Applying this test, we find that

Plaintiff easily satisfies the $10,000 jurisdictional amount.

37

Plaintiff first challenges the definition of “connection

with criminal elements” contained in the February 7, 1977,

ordinance. On its face, the definition of “connection with

criminal elements,” set forth above, is so vague and un-

certain that it cannot stand attack, see, e. g., Lanzetta v.

State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888

(1939) [making it unlawful to be a “gangster”) and Baggett

v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed. 377 (1964)

{requiring teachers to swear that they were not “subversive

persons”). As part of the judgment to be entered herein,

therefore, the term “connection with criminal elements” and

the definition of such term contained at Section 9 of the

February 7, 1977, ordinance will be declared void for vague-

ness under the Due Process Clause of the Fourteenth

Amendment. This does not dispose of the case, however, as

Plantiff also challenges the age restriction and the enforce-

ment of such restriction.

At the preliminary and permanent injunction hearings in

this action, the primary evidence elicited, in addition to

proving up the background of the case set forth above, was

related to Plantiff’s contention that the amusement centers

it operates are supervised and regulated so as to avoid

jeopardizing the public health, safety or morals. Plaintiff

also offered evidence to show that over half of its customers

are age 17 or below and that the age restriction, therefore,

would severely affect the profitability of A.C.I.’s Town East

store if it did not render the business entirely unprofitable.

Evidence was offered by the City to prove up the purposes

of the City Council in enacting the ordinance. These reasons

are set out in the four “whereas” clauses that precede the

text of Ordinance No. 1353:

“WHEREAS, coin-operated amusement establishments

have a tendency to attract patrons of tender years, and

WHEREAS, the congregation of youthful patrons creates

problems of policing due to the need to protect such

patrons from the influences of those who would promote

gambling, sale of narcotics and other unlawful activities;

and

WHEREAS, it is vital to the safety and welfare of the

inhabitants of the City of Mesquite and particularly those

of tender years for whom a special duty is imposed upon

the governing body to protect, that proper and suitable

operators only are licensed to operate coin-operated

amusement establishments and that such establishments

be regulated to that end; and WHEREAS, it has been

determined that the attraction of such establishments for

those under seventeen (17) years of age is detrimental

to such persons and to the health and welfare of the

inhabitants of the City, generally.”

Police officers testified that young people congregate at

such amusement establishments, that several truancy ar-

rests have been made at such centers (none at Plaintiff's

establishment), and that in one instance a juvenile arrested

for truancy at an amusement center was later found to be

participating in the free school lunch program.

While the above seem incredibly slender reeds upon

which to base an ordinance restricting the age at which

persons may enter a coin-operated amusement center,

there is no fundamental right or interest involved in such

legislation and courts have traditionally permitted greater

latitude in legislation regulating conduct of minors than of

adults, see Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct.

438, 88 L.Ed. 645 (1944) and Ginsberg v. New York, 390

U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There is little

question but that amusement centers are a proper subject

for regulation through the police power. The Supreme

Court of the United States has, for example, upheld an

ordinance of the City of South Pasadena, California, which

prohibited the keeping or maintaining of any hall or room

in which billiard or pool tables were kept for hire, except

in hotels having twenty-five or more bedrooms, Murphy v.

People of the State of California, 225 U.S. 623, 32 8. Ct. 697,

56 L.Ed. 1229 (1912). The Supreme Court deemed the

operation of a pool hall to be a “nonuseful” occupation. In

addition, the City of Mesquite as a home rule city has

power under Texas law, Art. 1175, V. A. T. S.,

“22. To regulate the location and control the conduct of

theaters, moving picture shows, ten pin alleys,

vaudeville shows, and all places of public amuse-

ments.”

The proper test, therefore, is whether there is any

rational basis to support such legislation. As the Supreme

Court of the United States made clear in Goldblatt v.

Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d

130 (1962),

“Our past cases leave no doubt that appellants had the

burden on ‘reasonableness.’ E. g. Bibb v. Navajo Freight

Lines, 359 U.S. 520, 529, 79 S.Ct. 962, 3 L.Ed.2d 1003

(1959) (exercise of police power is presumed to be con-

stitutionally valid); Salsburg v. Maryland, 346 U.S. 545,

553, 74 S.Ct. 280, 284, 98 L.Ed. 281 (1954) (the presump-

tion of reasonableness is with the State); United States

v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778,

784, 82 L.Ed. 1234 (1938) (exercise of police power will

be upheld if any state of facts either known or which

could be reasonably assumed affords support for it).”

Applying this test, Plaintiffs’s petition for a permanent

injunction to enjoin enforcement of the 17-year-old restric-

tion must be denied.

Plaintiff further argues that the ordinance was calculat-

ed to harass it or to circumvent the force of the State court

injunction. Although the circumstances are indeed sus-

picious, we are unable to psychoanalyze the members of the

Mesquite City Council to determine their motives and are

limited to analyzing whether the ordinance is unconstitu-

tional on its face or as applied. As Justice Black observed,

. . . it is extremely difficult for a court to ascertain the

motivation, or collection of different motivations, that lie

behind a legislative enactment...

It is difficult or impossible for any court to determine the

‘sole’ or ‘dominant’ motivation behind the choices of a

group of legislators.”

Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940,

1945, 29 L.Ed.2d 438 (1971).

Plaintiff next argues that under the facts of this case, the

City should be estopped to enforce the ordinance. Federal

courts have consistently held, however, that State and local

governments cannot be estopped from exercising their

police power, see, e. g. Teras d New Orleans Railroad

Company v. Miller, 221 U.S. 408, 31 S.Ct. 534, 55 L.Ed. 789

(1911) and Sanitary District of Chicago v. United States,

266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925).

A.C.I. further contends that the ordinance denies it equal

protection of the law in that the 17-year-old restriction is

allegedly not enforced against another amusement machine

establishment. Courts have, of course, found an equal pro-

tection violation where an ordinance, valid on its face, was

administered in a discriminatory manner, Yick Wo v.

Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L.Ed. 220 (1886). In

this case, Plaintiff’s claim is that the age restriction is not

enforced against an amusement center known as Fun Fair

which is located in the Big Town Shopping Center in

Mesquite. It would appear, however, that Fun Fair may

have qualified as an amusement center located in an en-

closed mall within the terms of the April 5, 1976, ordinance

and, therefore, have been exempt from the age restriction

from April 5, 1976, until the amended ordinance in question

was enacted on February 7, 1977. Because enforcement of

41

the February 7, 1977, ordinance has been enjoined by this

Court since February 11, 1977, there were less than four

days from April 5, 1976, to the present within which the

City of Mesquite had an opportunity to enforce the age

restriction against Fun Fair. Upon this record, therefore,

we are unable to find that the age restriction has been

enforced in a discriminatory manner so as to raise a con-

stitutional question under the Equal Protection Clause of

the Fourteenth Amendment.

Plaintiff also argues that the ordinance violates the

Equal Protection Clause by failing to distinguish between

its establishment and the Fun Fair establishment. The argu-

ment here is that A.C.L’s establishment is supervised by

an adult who enforces company rules against gambling,

smoking, drinking and eating on the premises while no

manager is regularly on duty at Fun Fair. We are unable

to find any precedent for so holding and are of the opinion

that it would be impossible for states and municipalities to

custom-tailer every regulatory ordinance to take into ac-

count the mode of operation, skill and trustworthiness of

each person subject to regulation.

Counsel for Defendant is requested to prepare and sub-

mit appropriate form of judgment, approved as to form by

counsel for Plaintiff. Costs of this action are to be taxed

against the parties incurring same.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Avappin’s Cas TL, Inc.

vs. CA 3.77.0194. C

Tae Crry or Mesquite

JUDGMENT

This action came on for hearing before the Court, Hon-

orable W. M. Taylor, Jr., District Judge, presiding, and

the issues having been duly heard and a decision having

been duly rendered,

It is ORDERED, ADJUDGED and DECREED that

that portion of City of Mesquite Ordinance 1353 passed by

the City Council on February 7, 1977, wherein the term

“connection with criminal elements” is stated and the

definition thereof contained in Section 9 of said ordinance

is void for vagueness and contrary to the due process

clause of the Fourteenth Amendment to the United States

Constitution.

It is further ORDERED, ADJUDGED and DECREED

that a rational basis exists for the age classification con-

tained in the City of Mesquite Ordinances prohibiting the

playing of pinball machines by those under seventeen (17)

years of age and Plaintiff's prayer for injunction is

accordingly denied and the temporary injunction hereto-

fore entered is hereby dissolved.

ORDERED entered the 29th day of August, 1977, this

30th day of September, 1977.

W. M. TAYLOR

United States District Judge

43

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2999

D. C. Docket No. CA-3-77-0194-C

Avapprn’s Caste, IN.,

Plaintiff-Appellant

Cross Appellee,

versus

Tue Crry or Mesquite,

Defendant-Appellee

Cross Appellant.

Appeals from the United States District Court for the

Northern District of Texas

Before AINSWORTH, VANCE and ANDERSON, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed in part; and reversed, and that this cause

be, and the same is hereby remanded to the said District

Court in accordance with the opinion of this Court;

It is further ordered that defendant-appellee cross appel-

lant pay to the plaintiff-appellant cross appellee the costs

on appeal, to be taxed by the Clerk of this Court.

November 17, 1980

Issued as Mandate: January 6, 1981

4

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2990

ALAbbix's Caste, INc.,

Plaintiff-Appellant

Cross Appellee,

versus

Tue Crry or Mesquite,

Defendant-A ppellee

Cross Appellant.

Appeals from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING AND PETITION FOR

REHEARING EN BANC

(Opinion 11-17-80, 5 Cir., 198_, _-___ F.2d ___).

(December 15, 1980)

Before AINSWORTH, VANCE and ANDERSON, Circuit

Judges.

PER CURIAM:

(%) The Petition for Rehearing is DENIED and no mem-

ber of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on rehear-

ing en bane, (Rule 35 Federal Rules of Appellate Pro-

cedure; Local Fifth Cireuit Rule 16) the Petition for

Rehearing En Banc is DENIED.

) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members

of the Court and a majority of the Cireuit Judges who are

in regular active service not having voted in favor of it,

45

(Rule 35 Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 16) the Petition for Rehearing En Bane

is also DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, rehearing en bane is DENIED.

Entered for the Court:

ROBERT S. VANCE

United States Circuit Judge

In Tue

United States Court Of Appeals

For The Fifth Circuit

No. 77-2990

Axappin’s CASTLE, Inc.,

Plaintiff-Appellant

Tue Crry or Mesquite,

Defendant-Appellee

NOTICE OF APPEAL

TO THE SUPREME COURT

OF THE UNITED STATES

ELLANxD ARCHER

P. O. Box 137

Mesquite, Texas 75149

(214) 288-7711

Attorney for Appellee

City of Mesquite

47

Ix THe

United States Court Of Appeals

For The Fifth Circuit

No. 77-2990

Axapprn’s CASTLE, Inc.,

Plaintiff-Appellant

v.

Tue Crry or Mesquite,

Defendant-Appellee

NOTICE OF APPEAL

TO THE SUPREME COUaT

OF THE UNITED STATES

I. Notice is hereby given that the City of Mesquite,

Texas, the Appellee and Cross-Appellant named above

hereby appeals to the Supreme Court of the United States

from the Order of the United States Court of Appeals,

Fifth Cireuit overruling City’s Motion for Rehearing and

Suggestion for Rehearing En Bane entered in this action

on December 15, 1980.

This Appeal is taken pursuant to 28 U.S.C. 1254(2).

II. The Clerk will please prepare a transcript of the

record in this cause, for transmission to the Clerk of the

Supreme Court of the United States and inelude in said

transcript the following:

The entire record of this cause.

48

III. The following questions are presented by this

appeal:

1. Is Municipal regulation of pinball and other coin-

operated amusement centers by prohibiting minors under

seventeen (17) years of age playing or operating such

machines except in the presence of their parent or

guardian contrary to the United States Constitution?

2. Is the right of a minor to play a pinball or other

coin-operated machine so substantial as to give rise to

a Constitutional deprivation?

3. Is the term “connection with criminal elements”

unconstitutionally void for vagueness when applied in

the context of instructions to the Chief of Police in mak-

ing an investigation as to an applicant’s character where

the Chief of Police is not empowered to make a decision

as whether or not to issue a license?

4. Did Aladdin’s Castle, Inc. have standing to challenge

the vagueness of the language in instruction to the Chief

of Police directing him to investigate the applicant's

“connections with criminal elements” at a time when the

applicant had been issued a license and its sole complaint

was an apprehension that it might be harmed in the

future?

ELLAND ARCHER

P. O. Box 137

Mesquite, Texas 75149

(214) 288-7711

Attorney for Appellee

City of Mesquite

49

PROOF OF SERVICE

I, Elland Archer an attorney for the City of Mesquite,

Texas, and attorney of record for the City of Mesquite,

Appellant herein, depose and say that on the 5th day of

March, 1981, I served a copy of the foregoing Notice of

Appeal to the Supreme Court of the United States on

Aladdin’s Castle, Ine., Appellee herein, by delivering the

same to the receptionist in the offices of Bickel and Case,

Counsel of Record for the said Aladdin’s Castle, Inc.,

located at 5441 First International Building, Dallas, Texas,

75270.

ELLAND ARCHER

SUBSCRIBED AND SWORN TO BEFORE ME at

Mesquite, Texas, this 5th day of March, 1981.

SANDRA PORTER

Notary Public in and for

Dallas County, Texas