Opposition Brief — City of Paducah v. Investment Entertainment, Inc.

86 -3.07.2) [ : ney US.

—FFLED

NO. 86-

SEP 25 1908

“os JOSEPH F. SPANIOL, JR.

Supreme Court of the United Stirs — ccerx

October Term, 1986

CITY OF PADUCAH: JOHN K. PENROD, as Mayor, and JOE

VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY) FORD

and JAMES W. FLYNN, as Commissioners of said City:

JAMES W. UTTER, as Corporation Counsel, and THURMAN

BAKER, as Treasurer thereof,

Petitioners,

INVESTMENT ENTERTAINMENT, INC. ;

BELTLINE NEWS AND ARCADE CLUB,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOSEPH S. FREELAND

JAMES U. GLANVILLE

Freeland, Glanville & Megibow

910 Citizens Bank Bldg.

Paducah, KY 42001

502-442-0121

Counsel of Record

for Respondents

SUBJECT INDEX

Page

RESPONSE TO PETITION FOR WRIT OF CERTIORARI,.. 1

I, 0 oso ks kok ee 2

CITY ORDINANCE INVOLVED,...........ececeeeeees 3

STATOMENE OFOTME GAGE ic Pe idl 3

I

PADUCAH HAS WAIVED THE DEFENSE OF

Wii eee eae \

I]

THE DISTRICT COURT AND COURT OF APPEALS

CORRECTLY HELD THE PADUCAH ORDINANCE

ESTABLISHES A PRIOR RESTRAINT ON PRO-

fiMil ee ils aor rrer fe ee rer srr ree ree 6

LUPE sg Shock cre hes so twe en aeaeee spans Ree e® /

TABLE OF AUTHORITIES

CASES Page

Arcara, District Attorney of Erie

ounty v. Cloud Books, Inc., et al,

= » 54 L.W. 5060, 106 S.Ct.

i FREER Fe np oe em ren ares Pen ee 2

California Bankers Ass'n. v. Shultz,

Ss ee SU aNd ndoneeebacens ba kdeaens 6

Hal | Commonwealth ex rel. Shroering,

AR Be ef. | ee ea en ee 2,7

Miller v. California, 413 U.S. 15

(1973)

State of Idaho ex rel. Kidwell v.

U.S. Marketing, 102 Idaho 431, P.2d

622 (1981)..

SOSCHReeseeee ease Oeees & 6 2S O66 6 6S 6 6 4.6 6 @

United States v. Estate of Donnelly,

ee as GO CUNT ON s iieese cs bbenn cxbuecciviwns

OTHER AUTHORITIES

KENTUCKY REVISED STATUTES:

FC ECHRSCHS SESS OCHESCHRECTCHOCH HPF CEP OS BASs DS

UNITED STATES CODES:

42-- § 1983,

ttt GLABRAE ee en ee ve ee a ee Oe re

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

CITY OF PADUCAH: JOHN K. PENROD, as Mayor , and JOE

VITERISI, ROBERT A. COLEMAN, HAROLD (SHORTY) FORD

and JAMES W. FLYNN, as Commissioners of said City:

JAMES W. UTTER, as Corporation Counsel, and THURMAN

BAKER, as Treasurer thereof.

Petitioners,

INVESTMENT ENTERTAINMENT, INC. ;

BELTLINE NEWS AND ARCADE CLUB,

Respondents

RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

The Respondents, Investment Entertainment, Inc.,

and Beltline News and Arcade Club, respectfully sub-

mit that the Petition for Writ ot Certiorari to re-

view the Opinion sub judica of the Circuit Court of

Appeals for the Sixth Circuit in the subject cases,

to-wit: No. C83-0217-P(J) City of Paducah v. Invest-

ment Entertainment, Inc. removed from McCracken (County,

Kentucky) Circuit Court and civil rights actions

ae

Investment Entertainment, Inc. No. 85-5092 and Belt-

line News and Arcade Club, No. 85-5093 v. City of

Paducah, et al, entered on May 28, 1986, shou!d be

denied.

JURISDICTION

Petitioners’ recitation of the proceedings in

the District Court and Court of Appeals for the Sixth

Circuit is substantially correct except:

The cited case of State of Idaho ex rel. Kidwell

v. U.S. Marketing, 102 Idaho 431, 631 P.2d 622 (1981),

appears to be in conflict with the opinion of the

Court of Appeals filed herein on May 28, 1986. However,

this jurisdictional ground urged by Petitioners for

granting the Writ is attenuated by Kentucky's own

interpretation of a similar ordinance in Hall v. Con-

monwealth ex rel. Shroering, Ky. 505 S.W.2d 166 (1974)

rendered by Kentucky's court of last resort. Hall,

supra, placed narrower limits upon the injunctive

relief available to regulate pornography than does

Idaho in State of Idaho, supra.

And, Arcara, District Attorney of Erie County v.

Cloud Books, Inc., etc., U.S. _, 54 L.W. 5060, 106

S.Ct. 3172 (1986) cited by the Petitioners is not dis-

positive of any issue raised in the Petition for

Writ of Certiorari. (Houses of prostitution as such

may be shut down though also containing a bookstore. ).

CITY ORDINANCE INVOLVED

The subject ordinance of the City of Paducah,

as well as all other references used by Petitioners,

is likewise referenced in the Appendix to this brief,

as well as two additional documents, to-wit: Memo-

randum in Support of City of Paducah Motion for Sum-

mary Judgment (Appendix "I") and Brief for City of

Paducah, et al filed in the Court of Appeals for the

Sixth Circuit (Appendix "J").

STATEMENT OF THE CASE

On June 14, 1983 the Petitioner, City of Paducah,

acting through its commissioners and mayor (who are

also nominal parties to this suit) enacted the sub-

ject ordinance set forth in Appendix "C". On August 3,

1983, following a public hearing, Paducah adopted a.

resolution that suit be filed, pursuant to said ordi-

nance, against the Respondents in McCracken Circuit

Court. One of these suits, that one naming Investment

Entertainment, Inc., was successfully removed to Fed-

eral District Court upon grounds of diversity of cit-

am

izenship. The other remains pending in State Court.

Both Beltline and Investment, Respondents to the

instant Motion, filed suits against Paducah, et a]

pursuant to 42 U.S.C. § 1983.

In response to the federal suits, Paducah and

the other movants pleaded a number of defenses in-

cluding abstention. Thereafter all parties, includ-

ing Paducah, moved for Summary Judgment. In its

Motion and supporting Memorandum, (Appendix "I"),

Paducah sought only a judgment on the merits of its

claim that the subject ordinance was constitutional.

The District Court was not asked to address the

-question of whether abstention was appropriate nor

whether the ordinance should be construed initially

by a State Court. Paducah lost and Beltine and Invest-

ment won in the District Court, and a permanent injunc-

tion was entered against Paducah on First Amendment

grounds, the only grounds presented. Paducah appealed.

In seeking relief on appeal before the Court of

Appeals for the Sixth Circuit,, Paducah's sole ground

urged for reversal was the Constitutional validity of

the ordinance. Again, Paducah was silent on the issues

of abstention or construction of the subject ordinance

iesccniniieiidiiaeaiensuaieeaiiiiiiieaial

by State Courts.

The Court of Appeals affirmed the District

Court's holding that the subject ordinance, on its

face, establishes a prior restraint of protected

speech. Paducah now seeks a Writ of Certiorari from

this Court.

ARGUMENT I

PADUCAH HAS WAIVED THE

DEFENSE OF ABSTENTION

Paducah is asking this Court for relief under

the abstention doctrine. In effect, this Court is

being asked to consider a case almost completely

different from that presented to the District Court

or Court of Appeals. It is fundamental that defenses

may not be raised for the first time on appeal. E.g.

United States v. Estate of Donnelly, 397 U.S. 286

(1970). Moreover, it is difficult to apprehend just

how a State Court's construction of the statute might

differ from the one given by the District Court.

Although Paducah argues vigorously for the principle

of State Court construction, the only specific point

on which it claims a potential construction contrary

to the one given below, is the possible severability

of the license revocation provision. (Petition p.

52-53). Paducah does not say how this would render

the balance of the ordinance valid and it is diffi-

cult to see how it could be.

For reasons stated hereinafter, it is unlikely

that Kentucky's construction of che ordinance would

differ from that of the District Court.

ARGUMENT II

THE DISTRICT COURT AND

COURT OF APPEALS CORRECTLY HELD

THE PADUCAH ORDINANCE ESTABLISHES A PRIOR

RESTRAINT ON PROTECTED SPEECH

The main thrust of Paducah's argument before the

Court of Appeals (Appendix "I") was that the sanctions

for violating the ordinance were less onerous than for

violating Kentucky's penal statutes proscribing dissem-

ination of obscenity (KRS 531.020) which could include

incarceration. Penal statutes against pornography do

not, of course, restrict the dissemination of protected

materials. Miller v. California, 413 U.S. 15 (1973).

Although it was not argued in the Court of Appeals

as a reason for affirmance (abstention having not been

raised) there is an additional reason for affirming

the judgment below. California Bankers Ass'n. v.

Shultz, 416 U.S. 21 (1974). That is, Kentucky's court

of last resort (the former Court of Appeals) had al-

ready placed a narrow construction on similar efforts

to enjoin the dissemination of pornography in the

City of Louisville. Hall v. Com. ex rel. Shroering,

Ky 505 S.W.2d 166 (1974). In Hall, supra it was held

that the defendants d/b/a “Adult News" could be en-

joined from violating obscenity statutes and punished

for contempt. However, the trial court's order was

overbroad in ordering that defendants be permanently

enjoined from selling, drawing, giving away, etc.

at any location in city or county, any film or any

written or printed material.

CONCLUSION

For the reasons and upon the authorities cited

hereinabove, Respondents respectfully move that the

Petition for Writ of Certiorari be denied.

CERTIFICATE OF SERVICE

Fh

1, hereby certify that on this &S_day of

September, 1986, the original and 40 copies of the

within Response to Petition for Writ of Certiorari

were deposited in the United States Post Office in

Paducah, Kentucky, postage prepaid, and properly

addressed to the Clerk of the United States Supreme

Court.

I further certify that three (3) copies were

also mailed, postage prepaied, to the below-listed

parties to the proceedings and that all parties

required to be served have been Served.

Hon. James W. Utter

P.0. Box 2267

Paducah, KY 42002-2267

Hon. James J. Clancy

9055 La Tuna Canyon Rd.

Sun Valley, CA 91352

Attorneys for Petitioners

Hon. Edward Cooper

Santa Ana City Attorney

20 Civic Center Plaza

Santa Ana, CA 92701

Counsel for Amicus Curiae

S

ttornéy for Respondents

/

APPENDIX "A"

Opinion of the United States Court

of Appeals for the Sixth Circuit in City

of Paducah v. Investment Entertainment,

Inc., et al., and Investment

Entertainment, Inc., (No. 85-5092)

Beltline News and Arcade Club, (No.

85-5903) v. City of Paducah et al., Nos.

85-5092, SESILE decided May 28, 1986.

(Reference: Petition for Writ of

Certiorari at page 2, line 15; page

20, line 19; page 21, line 16).

....-A-1 thru A-40

A-1

ae

Nos. 85-5092, 85-5093

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CITY OF PADUCAH,

Plaintiff-Appellant,

V:

INVESTMENT ENTERTAINMENT,

Te... BG Bia,

Defendants-Appellees.) ON APPEAL

FROM THE

UNITED

STATES

INVESTMENT ENTERTAINMENT, DISTRICT

INC., (NO. 85-5092). COURT FOR

BELTLINE NEWS AND ARCADE THE WESTERN

CLUB, (NO. 85-5093). DISTRICT OF

KENTUCKY

Plaintiffs-Apvellees.

%

CITY OF PADUCAH, et al.,

Nee ea I OI SI

Defendants-Appellants.

SS. AE AS A NR. ~ SE hat Sat Se

Decided and Filed May 28, 1986

Before: MERRITT and WELLFORD, Circuit

Judges; and CELEBREZZE, Senior Circuit

Judge.

|

A-2

MERRITT, Circuit Judge, delivered

the opinion of the court in which

CELEBREZZE, Senior Circuit Judge,

joined. WELLFORD, Circuit Judge (pp.

16-18), delivered a separate concurring

opinion.

MERRITT, Circuit Judge. The City

of Paducah, Kentucky, appeals the

judgment of District Judge Johnstone

that Paducah's obscenity abatement

ordinance, on its face, establishes a

prior restraint of protected speech and

thereby unconstitutionally infringes the

first amendment rights of plaintiffs

Investment Entertainment, Inc. and

Beltline News and Arcade Club, sellers

of books, magazines, and video tapes.

We agree that the ordinance's provision

requiring the revocation of the

occupational licenses of booksellers and

move theatres dealing in obscenity

renders the ordinance invalid.

A-3

On June 14, 1983, the City of

Paducah enacted an ordinance to control

obscene material as defined in Miller v.

California, 413 U.S. 15 (1973). Relying

on the city's power to declare and abate

public nuisances, the ordinance defines

the following as "public nuisances per

se'' in Paducah: (1) any place where

obscene films are publicly exhibited or

possessed for exhibition in the regular

course of business; (2) any obscene film

so exhibited or possessed; (3) any place

of business, or portion thereof, where

obscene publications constitute a

principal part of the stock in trade of

the business; and (4) any obscene

publication possessed at such a place.

The ordinance also defines as "a public

nuisance per accidens" all money or

other consideration received for the

exhibition or sale of such obscene films

A-4

or publications after the manager of the

business receives certified notice of

the initiation of proceedings under the

ordinance.

The key contested provision of the

ordinance states that the Paducah Board

of Commissioners, upon a specific

finding that a public nuisance exists,

shall by resolution order a revocation

of all licenses and permits that have

been issued to the business maintaining

the nuisance. This license revocation

is subject to judicial confirmation.

The Board must then order counsel

for the city to bring a civil action

against the public nuisance. In

addition to license revocation, the

ordinance contemplates that the action

will seek an order enjoining all persons

maintaining the nuisance from possessing

or marketing the obscene films or

publications at any time in the future,

A-5

an accounting of all money received in

the obscenity business, forfeiture of

the obscene materials and the money, and

judgment for the city for all costs

expended in abating the nuisance. The

ordinance provides that the "cost of

abatement,"’ which is defined to include

investigative costs, court costs,

reasonable attorney fees, and printing

costs for any trial and appeal, is to be

a special assessment against the parcel

of land upon which the public nuisance

is maintained, but only against the

interests of the individuals responsible

for maintaining the nuisance. This

special assessment is to be collected

and enforced by the same means as used

for ordinary local property taxes.

In June and July of 1983, Paducah

police officers purchased obscene

Magazines and video tapes from

businesses operated in Paducah by

A-6

Investment and Beltline. Counsel for

the city wrote a letter to both

informing them of the ordinance and of

the material purchased by the police

officers. The letter gave them notice

that public hearings would be held. In

August 1983, after a hearing, the Board

adopted a resolution finding the

material purchased from Investment to be

obscene and declaring the business from

which the material was purchased to be a

public nuisance. In September 1983, the

Board adopted a similar resolution

concerning Beltline. Thereafter,

counsel for the city initiated civil

actions in Kentucky state court seeking

abatement of the nuisances as provided

by the ordinance.

Investment and Beltline brought

separate suits in the United States

District Court for the Western District

of Kentucky, both under 42 U.S.C. § 1983

A-7

(1982), seeking to have the ordinance

declared constitutionally invalid and to

have the city enjoined from enforcing

the ordinance. Alleging diversity of

citizenship, Investment removed the

state court enforcement action pending

against it to federal district court.

Beltline also attempted to remove the

enforcement action directed against it

to federal court, but removal was denied

because there was no diversity of

citizenship. The District Court then

consolidated all three actions. The

parties have raised no issue concerning

abstention in the District Court or this

Court.

Neither Investment nor Beltline

challenged the ordinance's definition of

obscenity, and both admit that the

material seized is obscene within the

Miller v. California definition. The

District Court granted their motions for

summary judgment. It held that because

the ordinance's license revocation

procedure could result in closing down

an entire place of business even though

not all the material was obscene, the

abatement procedure amounted to a prior

restraint of both protected speech and

unprotected speech. Judge Johnstone

gave this example: Under the ordinance,

a movie theatre could be closed for

repeatedly showing an obscene film on

weekends even though the theatre showed

"The Ten Commandments," 'Snow White,"

and "Gone With the Wind" on week days.

The District Court also held that the

ordinance's abatement procedure

unconstitutionally encouraged businesses

to engage in self-censorship because the

threat of having an entire place of

business "abated" would induce business

operators to avoid questionable, but

still protected, films and publications.

A-9

tee tii

The District Court ruled that this

self-censorship arises from the

ordinance's use of undefined terms such

as "regular course of business,"

"repeatedly," and "principal part." The

court held that in this respect the

ordinance was vague and would give

business operators no notice of what

conduct the ordinance reached.

os

The ordinance requires the

revocation of the business licenses of

distributors and exhibitors of obscene

material. It therefore restrains future

speech of the booksellers and theaters

whose licenses are revoked--both obscene

and decorous speech. The main issue

presented is whether Paducah may use

license revocation as a tool to control

obscenity.

The problem of using licensing to

control distribution of printed

A-10

expression by booksellers and publishers

has a long history. Milton's

Areopagitica remains the classic

argument against the licensing of

speech. Writing in 1644, just after the

revolution, in response to a

parliamentary law reestablishing the use

of licensing to control books, Milton

takes as his “task...to show that

no...well instituted state, if they

valued books at all, did ever use" "this

authentic Spanish policy of licensing

books.'' He argues instead that "the

timeliest and most effectual remedy" is

subsequent evaluation and seizure if

necessary. Among his many arguments,

Milton advances the danger to truth and

beauty because they are difficult to

distinguish from falsity and ugliness

(however "much we thus expel of sin, so

much we expel of virtue, for the matter

of them both is the same"') and the

A-11

problem of the "quality which ought to

be in every licenser" ("he who is made

judge to sit upon the birth and death of

books...had need to be a man above the

common measure, both studious, learned,

and judicious." Yet, "there cannot be a

more tedious and unchosen

journeywork...than to be made the

perpetual reader of unchosen books and

pamphlets"). Licensing speech

discourages new ideas ("I found and

visited the famous Galileo, grown old, a

prisoner to the Inquisition, for

thinking in astronomy otherwise than the

Franciscan and Dominican licensers

thought"); undermines expression as a

value in itself ("[g]ive me the liberty

to know, to utter, and to argue freely

according to conscience, above all

liberties"); and raises the prospect of

manipulation and misinformation when we

"pretend to bind books to their good

A-12

behavior" ("for what magistrate may not

be misinformed, and much the sooner, if

liberty of printing be reduced into the

power of a few?"').

By the late Eighteenth Century,

Milton's view against licensing had

become the English common law rule

against prior restraint, as reflected in

Blackstone's Commentaries:

The liberty of the press is

indeed essential to the nature

of a free state: but this

consists in laying no previous

restraints upon

publications....To subject the

press to the restrictive power

of a licenser, as was formerly

done, both before and since

the revolution, is to subject

all freedom of sentiment to

the prejudices of one man, and

make him the arbitrary and

infallible judge of all

controverted points of

learning, religion, and

government.

©

l 4 W. Blackstone, Commentaries 151-52

(emphasis in original). Blackstone

described the history of printer

licensing in England:

footnote 1 con't on next page

A-13

The British common law against licensing

publishers and booksellers was part of

the foundation for the first amendment's

guarantee of freedom of the press. See

Z. Chafee, Free Speech in the United

States 10-12 (1942) (arguing that the

Blackstonian view of freedom of the

press--freedom from prior restraint--was

part, but only part, of the freedom that

the first amendment had come to

guarantee).

footnote 1 con't

The art of printing, soon after it's

introduction, was looked upon (as well

in England as in other countries) as

merely a matter of state, and subject to

the coercion of the crown. It was

therefore regulated with us by the

king's proclamations, prohibitions,

charters of privilege and of licence,

and finally by the decrees of the court

of starchamber; which limited the number

of printers, and of presses which each

should employ, and prohibited new

publications unless previously approved

by proper licensers. On the demolition

of this odious jurisdiction in 1641, the

long parliament of Charles I, after

footnote 1 con't on next page

1

A-14

ey #

Modern first amendment

jurisprudence has followed Milton

and Blackstone on prior restraint. As

the District Court noted, that law has

dealt with the licensing problem by

footnote | con't

their rupture with that prince, assumed

the same powers as the starchamber

exercised with respect to the licensing

of books; and in 1643, 1647, 1649, and

1652, (Scobell. i. 44, 134, ii. 88,

230.) issued their ordinances for that

purpose, founded principally on the

starchamber decree of 1637. In

1662 was passed the statute 13 & 14 Car.

II. c. 33. which (with some few

alterations) was copied from the

parliamentary ordinances. This act

expired in 1679, but was revived by

statute I. Jac. LI. c. 17, and continued

till 1692. It was then continued for

two years longer by statute 4 W. & M. c.

24, but, though frequent attempts were

made by the government to revive it, in

the subsequent part of that reign, (Com.

Journ. 11 Feb. 1694, 26 Nov. 1695. 22

Oct. 1696. 9 Feb. 1697, 31 Jan. 1698.)

yet the parliament resisted it so

strongly, that it finally expired, and

the press became properly free, in 1694;

and has ever since so continued.

*

Id. at 152 n.2.

A-15

focusing on whether the use of licensing

constitutes a prior restraint of

protected expression. The major case on

prior restraint is Near v. Minnesota,

283 U.S. 697 (1931). In Near the Court

invalidated, as a prior restraint, an

injunction entered against a newspaper

under a Minnesota statute providing that

any newspaper publishing malicious,

scandalous, or defamatory material is a

nuisance and can be permanently

enjoined. Chief Justice Hughes, quoting

Blackstone, pointed out that part of the

first amendment grew out of the struggle

in Britain against the "legislative

power of the licenser" of the press. Id.

at 713-14. The Court held that if "the

object of the statute is not punishment,

in the ordinary sense, but suppression

of the offending newspaper or

periodical" in the future, and "the

statute not only operates to suppress

A-16

the offending newspaper or periodical

but to put the publisher under an

effective censorship." 283 U.S. at

709-12, then the statute constitutes a

prior restraint.

The City of Paducah's argument that

its licensing ordinance is not a prior

restraint is similar to Justice Butler's

argument for the four dissenters in

Near, Paducah, one might argue, is only

revoking a previously issued business

license, and when the licenses are

issued they are completely unrelated to

the regulation of speech. Later

revocation is for abuse of the

occupational license.

Likewise, Justice Butler argued

that prior restraint consists of

licensing publishers and their books as

an original matter, not of later

revocation for abuse of the right.

Later revocation "does not operate as a

A-17

previous restraint on publication within

the proper meaning of that phrase"

because it "is only in respect of

continuing to do what has been duly

adjudged tc constitute a nuisance." Id.

at 735 (emphasis in original). "It is

fanciful to suggest similarity

between...the decree...to prevent

further publication of malicious,

scandalous, and defamatory articles and

the previous restraint upon the press by

licensers as referred to by

w

Blackstone.... Id. at 736 (emphasis in

original). Chief Justice Hughes and the

majority of the Court rejected this

argument--"that the constitutional

freedom from previous restraint is lost

because charges are made of derelictions

which constitute crimes''--dereliction

because "(the argument] is inconsistent

with the reason which underlies the

privilege." Id. at 720-21.

ad

A-18

Several federal and state courts

have addressed the first amendment

question presented by state laws and

local ordinances that use the nuisance

abatement power to control obscenity.

Laws on this subject differ in approach.

Some, as in the instant case, abate the

nuisance by revoking the offending

business' general business license.

Others, the so-called "padlock" laws,

call for a judicially ordered temporary

Or permanent injunction under which

local authorities close the place of

business and do not allow its owners to

operate out of that location for the

duration of the injunction.

We have found no precedent in which

courts have upheld an obscenity law that

provided for the revocation of obscenity

dealers’ business licenses. In at least

three instances, federal courts have

held local obscenity ordinances that use

ET SO A ee

A-19

the revocation of licenses and permits

to be unconstitutional prior restraints

of protected speech. Gayety Theatres,

inc. ¥. Miewt, 7i9 F.Z26 i550. (1ite Cit.

1983); Entertainment Concepts, Inc. III

v. Maciejewski, 631 F.2d 497 (7th Cir.

1980); cert. denied, 450 U.S. 919

(1981); Cornflower Entertainment, Inc.

v. Salt Lake City Corp., 485 F.Supp. 7/77

(D. Utah 1980); see also Genusa v. City

of Peoria, 619 F.2d 1203, 1213-15 (7th

Cir. 1980) (requirement that adult

bookstore license applicant submit to

inspection of premises was held

unconstitutional). But cf. Young v.

American Mini Theatres, Inc., 427 U.S.

50, 62-63 (1976) (adult movie theatres

may be licensed if licensing is

necessary to valid zoning and locational

requirements); Genusa, 619 F.2d at

1212-13 (same for adult bookstores).

A-20

The Supreme Court has not ruled directly

on the licensing issue in an obscenity

case.

| The padlock cases are also

pertinent, although not directly on

point. The results in the padlock and

other similar cases have varied. The

Supreme Court has never ruled on the

question of whether a padlock obscenity

law is an unconstitutional prior

restraint.” Because this is a license

revocation ordinance case, we need not

give an opinion on the padlock laws

which are usually less intrusive than

license revocation. But a review of a

few of the cases is instructive.

See Avenue Book Store v. City of

Tallmadge, soe .

(White, J., dissenting to the Supreme

Court's denial of certiorari, quoted

infra note 3).

Ee

A-21

In Universal Amusement Co. v.

Vance, 587 F.2d 159 (5th Cir. 1978), the

Fifth Circuit held that a nuisance

statute's provision for temporary

closure of businesses distributing

obscene material was an unconstitutional

prior restraint of business operacors'

rights to engage in protected expression

during the closure period. The Supreme

Court affirmed at 445 U.S. 308 (1980),

but, in affirming, the Court aimed its

per curiam opinion at the fact that

under the statute a prosecutor could

obtain a temporary restraining order and

preliminary injunction against showing

certain named and unnamed films before

judicial determination that the films

were indeed obscene. 445 U.S. at 316 n.

14. The Court held that this procedure

was an unconstitutional prior

A-22

restraine.” Several other courts have

held padlock obscenity laws invalid.

See Cornflower Entertainment, Inc. v.

Salt Lake City Corp., 485 F.Supp. 7/77

3 See Justice White's dissent in which

he argues that the Court misunderstood

the statute's provision dealing with an

injunction to be issued after judicial

determination that the material involved

was obscene. 445 U.S. at 320-25. See

also the dissent to the Supreme Court's

denial of certiorari in Avenue Book

Store in which Justice White states:

In Vance v. Universal Amusement

Co., 445 U.S. 308 (1980), the Court

upheld a finding that a Texas

public nuisance statute authorized

an unconstitutional "prior

restraint for indefinite duration

on the exhibition of motion

pictures without a final judicial

determination of obscenity and

without any guarantee of prompt

review of a preliminary finding of

probable obscenity." Id. at 309.

Fatal to that statute were

particular procedural infirmities

of the texas nuisance scheme

whereby the subject of an abatement

order or injunction "would be

subject to contempt proceedings

even if the film [was] ultimately

found to be nonobscene." Id. at

316.

footnote 3 con't on next page

A-23

(D.Utah 1980); People ex rel. Busch v.

Projection Room Theatre, 17 Cal.3d 42,

130 Cal.Rptr. 328, 550 P.2d 600, cert.

denied sub nom., Van De Kamp v.

Projection Room Theatre, 429 U.S. 922

(1976); State v. A Motion Picture

Entitled ''The Bet", 219 Kan. 64, 547

P.2d 760 (1976); see also Note,

Pornography, Padlocks, and Prior

Restraints: The Constitutional Limits

of the Nuisance Power, 58 N.Y.U.L. Rev.

1478, 1489 (1983) ("courts generally

have assumed that padlock orde~s are

footnote 3 con't

The Court has never determined

however, whether abatement orders,

such as the one involved in the

present case, will pass

constitutional muster when they

permanently enjoin the use of a

business premises for the sale or

display of obscene material, but do

not subject the owner to contempt

sanctions unless there has been a

judicial, determination of

obscenity.

A-24

prior restraints without engaging in

substantial analysis under prior

restraint doctrine.").“

On the other hand, several state

courts have held that padlock laws aimed

at businesses involved in the sale or

exhibition of obscene material are not

prior restraints. In State ex rel.

Kidwell v. U.S. Marketing, Inc., 102

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

dismissed sub nom., U.S. Marketing, Inc.

v. Idaho, 455 U.S. 1009 (1982), the

Idaho Supreme Court dealt with a state

Accord J.R. Distributors, Inc. v.

Eikenberry, /25 F.2d 482 (9th Cir.

1984), rev'd on other grounds sub nom.,

Brockett v. Spokane Arcades, Inc., 105

S.Ct. 2/94 (1985). In Eikenberry the

Ninth Circuit stated as dictum (see 105

S.Ct. at 2/97 n.5; 725 F.2d at 498

(Wallace, J., dissenting))that an

obscenity abatement law's provision

requiring forfeiture of profits derived

from the sale of both obscene and

nonobscene material unconstitutionally

restricted free speech rights in the

nonobscene material.

| A-25

nuisance law providing that if a

business is engaged in selling or

exhibiting obscene material, the real

property used in the business is

forfeited for a period of one year. The

defendant argued that this forced

forfeiture constituted an

unconstitutional prior restraint on

business operators' first amendment

rights to engage in protected,

nonobscene expression. The court noted

that under Roth v. United States, 354

U8. 476 (1957), the state could punish

purveyors of obscene material and that

the state was not limited to criminal

sanctions as a weapon against obscenity.

Kingsley Books v. Brown, 354 U.S. 436,

441 (1957). The court held that the

purpose of the nuisance law was to deter

dealing in obscenity, and, in response

to the prior restraint argument, it

stated:

a <a

A-26

By way of example, if a

bookseller, having fa.'’en behind on

his property taxes, loses his

bookstore at a tax sale, he will

not be heard to complain that the

state has imposed an unlawful prior

restraint upon his bookselling

activities. If that same

bookseller is convicted of the

crime of distributing obscene

materials, he may be imprisoned,

and yet he will not be heard to

complain that his incarceration

constitutes a prior restraint upon

his ability to disseminate

protected speech, even though it is

quite clear that it has that

effect.

* * *

The one-year forfeiture

provision of the Idaho moral

nuisance statute avoids the

particularly noxious specter of

content control. Like a tax sale,

the forfeiture is directed strictly ;

at property, apart from the content

of any expression contained

therein. And like imprisonment for

a criminal obscenity transgression,

the forfeiture is intended to

penalize past distributions of

illegal and unprotected obscenity.

The legislature could just as

easily have imposed a fine or other

property-related penalty. Instead,

the legislature chose to punish the

violator by temporarily depriving

him of the property which was used ;

in committing the violation.

631 P.2d at 627-28.

A-27

Under this line of analysis,

similar to Justice Butler's argument in

dissent in Near, if the nuisance

abatement procedure is seen as a means

of deterring or punishing purveyors of

obscene material, preventing a business

operator from selling or exhibiting any

publications or films in the future is

no more of a prior restraint than

closing his business for drug or’ weapons

violations would be. Along these lines

see State ex rel. Calahan v. Diversified

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).

IV.

As noted by the Idaho Supreme Court

in Kidwell, not all laws that have the

effect of preventing a person from

engaging in protected expression in the

future are prior restraints as that term

4

A-28

has been developed. Assuming a valid

statute, the state of Kentucky could

incarcer#*e a person who is properly

convicted of violating Kentucky's

obscenity statute. See Ginzburg v.

United States, 383 U.S. 463 (1966)

(upholding conviction for violation of

federal obscenity statute; defendant had

been sentenced to serve five years) and

Ky. Rev. Stat. § 531.020 (1985)

(distributing two pieces of obscene

matter is a class A misdemeanor in

Kentucky, which may result in imposition

of up to a one-year jail sentence). If

a bookstore operator were convicted for

selling obscene material in his store

and were sentenced to serve time in the

state prison, his ability to continue to

personally sell nonobscene books in his

store would be foreclosed for the

duration of his incarceration. But it

A-29

is doubtful that he could make a valid

argument that the state law under which

he was incarcerated is a prior restraint

of his right to engage in protected

expression by selling nonobscene books.

Similarly, it is doubtful that he

could make a valid argument that a

nuisance abatement law applied to

obscenity is an unconstitutional prior

restraint if the law is narrowly

| structured as a deterrent or punishment

of purveyors of obscenity. If, on the

other hand, the abatement procedure

focuses on regulating the future speech

of a defendant who has been adjudged

"guilty" of distributing obscene

material, the law is tantamount to a

licensing statute establishing a prior

restraint of the defendant's first

amendment right to engage in nonobscene

expression. To use the language of Near

A-30

v. Minnesota, a nuisance abatement

procedure applied to obscenity should be

upheld if "[t]he object of the

[procedure] is punishment, in the

ordinary sense, [rather than]

suppression of the offending [business]"'

and if the procedure does not "operat([e]

to...put the publisher under an

effective censorship." 283 U.S. at

709-12.

No doubt one of the purposes of

Paducah's license revocation ordinance

is to deter the sale and exhibition of

obscene material. But the ordinance

goes beyond this purpose as District

Judge Johnstone found. The main thrust

of the abatement procedure is the

revocation of all licenses and permits

under which the business in question

operates. Even under the so-called

padlock laws, a business operator

remains free to engage in protected

——

A-31

expression in another location.

Paducah's procedure of revoking business

licenses is more restrictive in that it

essentially prevents the offending

business from engaging in future

distribution of protected, nonobscene

material anywhere within the City of

Paducah. We therefore conclude that the

ordinance's use of license revocation as

a weapon against obscenity goes beyond

merely deterring or punishing

individuals who deal in obscene

material. The ordinance's purpose, as

evidenced by the license revocation |

provision, is to control future

expression by businesses that have been

subjected to the nuisance abatement

procedure. The ordinance is a prior

restraint of plaintiff's freedom of

expression.

Of course, not all prior restraints

of free speech are unconstitutional.

A-32

But none of the exceptions are present

here. In order to be valid, a system

imposing a temporary prior restraint

must implement certain procedural

safeguards required by Supreme Court

precedent. These safeguards are drawn

from Freedom v. Maryland, 380 U.S. 5l

(1965), and more recently from

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 560 (1975), in which the

Court stated:

First, the burden of instituting

judicial proceedings, and of

proving that the material is

unprotected, must rest on the

censor. Second, any restraint

prior -to judicial review can be

imposed only for a specified brief

period and only for the purpose of

preserving the status quo. Third,

a prompt final judicial

determination must be assured.

As to the obscene material whose

sale or exhibition triggered the

application of Paducah's ordinance, the

A-33

safeguards are adequate. Or, more

accurately, there is no restraint at all

before a judicial hearing is conducted,

since the sale and exhibition of the

material is not restrained until after a

judicial determination that the material

is indeed obscene.” As discussed above,

however, the license revocation

procedure would still operate as a prior

restraint on plaintiffs' future

distribution of nonobscene expression.

The parties have not argued the

possibility that in an enforcement

action Paducah might obtain, under

Kentucky state court procedures, a

temporary restraining order directed at

allegedly obscene material before the

material had been judicially adjudged

obscene. We note that the majority of

the Supreme Court spoke to such a

procedure in Vance v. Universal

Amusement, 445 U.S. 308 (1980), but that

1s not an issue here.

A-34

Neither the parties nor the

District Court has addressed the

possibility that the ordinance's

unconstitutional use of license

revocation may be severable from the

remainder of the ordinance. In the

absence of argument on the issue, we

also decline to address the severability

question. The ordinance violates

plaintiffs' first amendment right of

freedom of expression. Accordingly, we

hold the ordinance facially invalid, and

we affirm the District Court's judgment.

WELLFORD, Circuit Judge, concurring.

The City of Paducah originally

sought to enforce the ordinance in

question against Beltline News and

Arcade Club (Beltline) and against the

other defendant, tevestnene

Entertainment, Inc. (Investment), in

state court. The action against the

a

A-35

latter was successfully removed by

Investment to federal district court,

but the other is pending against

Beltline in state court. The defense of

abstention was presented by the City in

its answer to Investment's complaint and

amended complaint in the district court.

This is the kind of factual situation in

which abstention may be appropriate

because the ordinance's scheme

contemplates a full state court hearing

before revocation of defendants'

operating licenses and privileges

becomes effective. State courts are

fully competent to hear and to consider

the constitutional challenges, federal

and state, here made to the procedures

involved in the disputed ordinance. The

state court, of course, may first test

the ordinance and its procedure under

standards of the Kentucky

Constitution; accordingly, it might

A-36

avoid the necessity of a decision on the

federal Constitution in a complex and

difficult area.

Reflected among the concerns which

have traditionally counseled a

federal court to stay its hand are

the desirability of avoiding

unseemly conflict between the two

sovereignties, the unnecessary

impairment of state functions, and

the premature determination of

constitutional questions.

Martin v. Creasy, 360 U.S. 219, 224

(1959).

In Martin, the Court noted that the

Pennsylvania law challenged as

unconstitutional had not yet been

construed by state courts, and there was

"no reason to suppose that the

Commonwealth of Pennsylvania will not

accord full constitutional scope...."

Id. at 225. This case would have been

an appropriate vehicle for abstention

since the district court might have

awaited a decision of the state court in

Beltline before deciding the sensitive

A-37

federal constitutional issue in

Investment. However, because the City

did not actively pursue the abstention

issue before this court and has

apparently not urged the state court

promptly to render a decision in

Beltline, this issue has been waived,

although initially suggested by the City

in its answer to the federal action.

See Ohio Bureau of Employment Services

v. Hodory, 431 U.S. 471, 479-80 (1977).

The difficulty in this area of the

law is well expressed in the various

viewpoints of the Justices set out in

Vance v. Universal Amusement Co., 445

U.S. 308, 320 (1980). Perhaps the

Supreme Court will determine whether an

abatement or revocation of the kind

contemplated in the Paducah ordinance

will pass constitutional muster in

deciding the case now pending before it

for disposition. People ex rel. Arcara

i

A-38

v. Cloud Books, Inc., 119 Misc.2d 505,

465 N.Y.S.2d 633, later proceeding, 96

A.D.2d 751, 465 N.Y.S.2d 699 (1983),

aff'd, 101 A.D.2d 163, 475 N.Y.S.2d 173

(1984), certified question answered and

modified, 65 N.Y.2d 324, 491 N.Y.S.2d

307, cert. granted, 106 S.Ct. 379

(1985).

I emphasize, on the merits of this

case, as found by Judge Merritt, that

the procedural safeguards of the Paducah

ordinance appear to be adequate solely

in respect of the allegedly obscene

materials because there is no prior

restraint involved with regard to any

claimed first amendment freedom of

expression until after a judicial

determination has been made on

obscenity. It is the future effect of

revocation of an operating license, the

remedy that is provided, that is

especially troublesome in this case.

A-39

We have recently stated with

respect to a city ordinance dealing with

an effort to control what was deemed to

be potential obscene conduct in licensed

clubs through revocation of an

occupational license:

We hold further that the

ordinance does not constitute an

impermissible prior restraint upon

either present or future restricted

expression. The appellants’

argument that their zoning status

would be altered if their

occupational licenses were revoked

does not constitute a reason to

invalidate the ordinance as a prior

restraint. In this case,

prescreening discretion is not

vested in any administrative body,

as in Near v. Minnesota, 283 U.S.

697 (1931), and the dangers of

censorship are not present.

Iacobucci v. City of Newport, Ky., 785

F.2d 1354, 1359 (6th Cir. 1986)

(emphasis added).

I do not harbor the serious

reservations of Judge Merritt that

obscenity ordinances may not, under any

circumstances, validly revoke a business

A-40

license of one dealing in obscenity,

properly defined, in a particular

location. A permanent revocation of

license may be too broad a sanction in

the situation before us. I have no

problem, as did the district court, with

the words “regular course of business"

and "repeatedly" as used in the

ordinance in question. I do not find

them "vague" or overbroad, examined in

context with their use in the ordinance.

I concur in the result reached by

Judge Merritt in this case. I do not,

however, adopt the rationale of J-R

Distributors, Inc. v. Eikenberry, 725

F.2d 482 (9th Cir. 1984), rev'd on other

grounds sub nom., Brockett v. Spokane

Arcades, Inc., 105 S.Ct. 2794 (1985).

APPENDIX ''B"

Opinion of the United States

District Court, Western District of

Kentucky at Paducah, Kentucky in City of

Paducah v. Investment Entertainment,

Inc., and Showtime Entertainment, Inc.,

Civil Action No. 63-021/-P(J),

Consolidated with Investment

Entertainment, Inc. v. City of Paducah,

et al., Civil Action No. 63-0208P(J).

(Reference: Petition of Writ of

Certiorari at page 2, line 12; page

14, line 14; page 19, lines 12 and

14).

...-B-l thru B-19

may.

We es Oy ad

ee ee

ond oo

4

\

2 .

‘ %

Fray

) :

i -

: : .

‘*

; é aT

B-1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

CITY OF PADUCAH,

Plaintiff,

CIVIL ACTION

NO. 83-0217-P(J)

Vv.

INVESTMENT ENTERTAIN-

MENT, INC., and SHOW-

TIME ENTERTAINMENT,

INC.,

Defendants.

CONSOLIDATED WITH:

INVESTMENT ENTERTAIN-

MENT, INC.,

Plaintiff,

CIVIL ACTION

NO. 83-0208-P(J)

Vv.

CITY OF PADUCAH,

et Gi.,

ume eee ee Oe “es Se

Defendants.

MEMORANDUM OPINION

These consolidated actions concern

the constitutionality of Ordinance No.

83-6-2388 of the City of Paducah. The

‘litigation was initiated in this court

on August 3, 1983, with Investment

B-2

Entertainment, Inc. seeking a

declaration that the ordinance was

unconstitutional and a permanent

injunction preventing the City from

proceeding against Investment under the

provisions of the ordinance.

Investment's action was subsequently

consolidated with an enforcement action

brought against Investment in state

court, and removed by Investment to this

court. Investment's defense and

counter-claim in the removal action are

essentially the same as its claim in the

original action, i.e., that the

ordinance is unconstitutional and

violates its rights under the First and

Fourteenth Amendments to the United

States Constitution. Investment's

original action also presents a claim

under 42 U.S.C. § 1983. Showtime

Entertainment, Inc. was added as a party

when it was learned that Showtime might

B-3

have an interest in the property

involved in the enforcement action

against Investment. (For convenience

this opinion will refer only to

Investment; however, the court's

decision will also apply to Showtime).

Jurisdiction over Investment's

original action exists under 28 U.S.C.

Sections 1331, and 1343(3).

Jurisdiction over the removal action

exists under 28 U.S.C. § 1332, through

the provisions in 28 U.S.C. § 1441.

These matters are now before the court

on cross motions for summary judgment,

pursuant to Rule 56 of the Federal Rules

of Civil Procedure.

Ordinance No. 83-6-2388 was enacted

on June 14, 1983. It deals with the

sale and exhibition of obscene

materials, and attempts to prohibit

sales and exhibitions through the City's

power to declare and abate public

nuisances.

following

(A)

(B)

(C)

B-4

The ordinance declares the

to be public nuisance per se:

Any and every place in the

City of Paducah where obscene

films are publicly exhibited

as a regular course of

business, or possessed for the

purpose of such exhibition.

Any and every place in the

City of Paducah where an

obscene film is publicly and

repeatedly exhibition, or

possessed for the purpose of

such exhibition; and

Any and every obscene film

which is publicly exhibited or

possessed for such purpose at

a place which is a public

nuisance under this section.

City of Paducah, Ordinance No.

83-6-2388,

Section 19-152. Also

declared a public nuisance are:

(A)

Any and every place of

business in the City of

Paducah in which obscene

publications constitute all of

the stock in trade, or a

principal part thereof. Where

such obscene publications

constitute only a part of the

stock in trade and are located

in a place or places within

such business which are

capable of demarcation, such

— ei Ss TD. ee ee ell

B-5

place or places constitute the

public nuisance which requires

abatement; and

(B) Any and every obscene

publication possessed at a

place which is a public

nuisance under this Section.

id. at Section 19-153. Additionally,

the ordinance provides that once a

certified copy of the ordinance and a

certified copy of the resolution

required under the ordinance have been

served on the place in question, or on

the persons responsible for the place,

all monies paid as admission to the

obscene exhibitions and all valuable

consideration received for the sale of

the obscene publications shall also be

regarded as public nuisances. Id. at

Sections 19-152 and 19-153.

The ordinance also prescribes

procedures for identifying and abating

the nuisances. The City's Board of

Commissioners must initially make a

B-6

specific finding that a public nuisance

exists. Id. at Section 19-155. Once

this is determined, the Board, in order

to implement the provisions of the

ordinance, must pass a detailed

resolution. The resolution must declare

that a nuisance exists, describe its

location, and set forth the facts on

which the nuisance determination was

based. Id. It must order that all

operating licenses and permits

associated with the declared nuisance be

revoked (subject to confirmation by

mandatory judicial proceedings), that

the nuisance be abated, and that

specific notice be given to those persons

deemed to have knowledge of the

nuisance. Id. The resolution must also

order the Corporate Counsel to initiate

judicial proceedings to abate the

nuisance. Id. The judicial proceedings

are to be initiated within five working

B-/7

days after passage of the resolution.

Id. at Section 19-156. In those

proceedings, the Corporate Counsel must

seek a court order that the materials in

question are obscene, that the places in

question are public nuisances, and that

the Board's action in revoking the

operating licenses and permits was

lawful. Id. The Ordinance also directs

the Corporate Counsel to seek an

injunction against the persons

maintaining the nuisance, enjoining them

from selling or exhibiting the materials

declared to be obscene and from

possessing the materials for purposes of

sale or exhibition. Finally, the

Corporate Counsel must seek an order of

forfeiture against the obscene films and

publications, and all monies determined

by the court to have been received

through their exhibition and sale. Id.

B-8

On August 3, 1983, the City's Board

of Commissioners utilized Ordinance No.

83-6-2388 to take action against

Investment. Through the required

resolution, the Board declared that

Investment, and all materials possessed

by Investment, were public nuisances,

ordered that Investment's operating

licenses and permits be revoked (subject

to judicial confirmation), and ordered

the Corporate Counsel to initiate the

necessary judicial proceedings. The

Board's findings and resolution were

based solely upon testimony from an

undercover policeman who visited

Investment on June 22, July 2, and July

10, 1983, and the Board's examination of

two video tapes and two magazines

purchased by the undercover policeman.

DISCUSSION

For summary judgment purposes,

Investment concedes that the video tapes

Sarlevnmle hace abel aasuied

asi ta Rae MEDIC that AN A Matt RAGS UC EO i Hehe

nai esicsczte ses ahi ace canted iy sh ask oi:

B-9

and magazines examined by the Board are

"obscene.'' Furthermore, Investment does

not challenge the constitutionality of

the "obscene matter" definition

contained in the ordinance. Investment

does contend that the provisions of the

ordinance, and the actions taken against

it pursuant to those provisions, violate

constitutional guarantees of due

process. Investment also contends that

the ordinance imposes an impermissible

prior restraint on speech and

impermissibly punishes protected speech.

Investment's due process argument

centers around procedural and

evidentiary matters. Specifically, it

contends that a determination that

Investment and all materials possessed

there are public nuisances is

unconstitutional, if it is based solely

upon general testimony from an officer

who visited the business, and a finding

B-10

that two video tapes and two magazines

purchased from the business are obscene.

This argument fails to recognize that

the actions taken by the Board of

Commissioners had no binding effect on

whether Investment, or any of the

materials possessed by Investment, would

ultimately be determined to be a public

nuisance and subjected to closure or

forfeiture. The only effect of the

Board's action was the initiation of

judicial proceedings against investment.

The ordinance recognizes that all final

and binding determinations must be made

by the court involved in the judicial

proceedings. Due process does not

require that decisions to initiate

judicial proceedings be made pursuant to

some type of evidentiary standard or

that they be made only after notice has

been given to the affected parties.

Viewed strictly as a means of

B-11

determining when to initiate judicial

proceedings, the ordinance does not

violate due process. See Buena Vista

Cinema, 129 Cal. Rptr. 315, 318 (Cal.

Ct.App. 1976).

The ordinance does not, however,

serve solely as a means for determining

when to initiate judicial proceedings.

Indeed, although the ordinance leaves

the ultimate procedural and evidentiary

standards in the hands of the court

‘conducting the required judicial

proceedings, it expressly defines the

property constituting a "public

nuisance,’ thereby establishing the

scope of the judicial proceedings and

setting the standard for the substantive

nuisance determination. Investment's

prior restraint and impermissible

punishment of protected speech arguments

relate to these public nuisance

declarations. Investment does not

B-12

contend that it is improper for the City

to declare what property constitutes a

public nuisance, or even that it is

improper for the City to declare that

obscene materials constitute a public

nuisance, subject to proper procedural

safeguards; however, Investment does

contend that Ordinance No. 83-6-2388

declares property to be a public

nuisance in a way which impermissibly

punishes non-obscene, protected speech.

The court agrees. Attempts to regulate

obscenity must be drafted in a manner

that will "ensure against the

curtailment of constitutionally

protected expression, which is often

separated from obscenity only by a dim

and uncertain line.'"' Bantam Books, Inc.

v. Sullivan, 372 U.S. 58,.66, 83 S.Ct.

631, 637 (1963). Accordingly,

constitutional guarantees of freedom of

speech mandate that laws regulating

Pn ati ae oie

el Ea neat Ces ana Reda sass ate art sn et AP a

anette

Meee

Re A

Mais Pm

Riitiae Dial einai - aawibeoels.

cielo

B-13

speech be carefully drawn so as to

punish only unprotected speech and not

intrude upon protected expression.

Gooding v. Wilson, 405 U.S. 518, 522, 92

S.Ct. 1103, 1106 (1972). Ordinance No.

83-6-2388 intrudes upon protected speech

by declaring an entire place of business

to be a public nuisance upon a finding

that the place publicly and repeatedly

exhibits obscene films, exhibits obscene

films as a regular course of business,

possesses obscene films for such

exhibitions, or maintains obscene

publications as its principal stock in

trade. See Ordinance No. 83-6-2388 at

Sections 19-152 and 19-153. By focusing

on the places of sale and exhibition,

rather than merely upon the materials

sold or exhibited, the ordinance

intrudes upon protected speech.

Specifically, it prevents an entire

place from disseminating

B-14

constitutionally protected, non-obscene

materials, simply because the place has

sold or exhibited obscene materials in

the past. The dangers of such a ban are

readily illustrated. For example, a

movie theatre that showed The Ten

Commandments, Snow White, or Gone With

the Wind during the week could be closed

and prevented from showing any movies,

if it happened to show a film each

Saturday night at midnight that was

ultimately determined to be obscene,

assuming that once a week constitutes

"repeatedly" exhibiting. Similarly, an

entire book store could be closed if it

sold materials later determined to be

obscene, even if the store also sold The

Bible, A Tale of Two Cities, and The New

York Times. Such all-encompassing

prohibitions directed at places of sale

or exhibition are unconstitutional. See

J-R Distributors, Inc. v. Eikenberry,

weil i aceaabi

- ee Ce Re Mae

B-15

725 F.2d 482, 494 (9th Cir. 1984), prob.

juris. noted, WSs, BS BAS. 77

(1984). See also Universal Amusement

Co. v. Vance, 587 F.2d 159, 165-166 (5th

Cir. 1978). (en banc), aff'd. 445 U.S.

308, 100 S.Ct. 1156 (1980); People ex

rel. Busch v. Projection Room Theater,

550 P.2d 600 (Cal. 1976), cert denied,

429 U.S. 922, 97 S.Ct. 320 (1976). See

generally Cornflower Entertainment, Inc.

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

777, 785-786 (D. Utah 1980); State v. A

Motion Picture Entitled "The Bet," 547

P.2d 760 (Kan. 1976). Moreover, because

the ordinance allows the entire business

to be declared a public nuisance, it

encourages a business person to steer

wide of danger by avoiding questionable

but nonetheless protected films and

publications. See Vance, 587 F.2d at

166. Thus, given that the line between

protected and unprotected speech is dim

B-16

and uncertain, the broad closure

provision contained in Ordinance No.

83-6-2388 will result in self-censorship

of protected but questionable materials

as business persons avoid those

materials in an effort to prevent their

entire business from being declared a

public nuisance. Thus, a new Ulysses

might never be disseminated because of

the threat of having the entire place of

business closed if the questionable item

was later determined to be obscene. See

Vance, 587 F.2d at 156. Ordinance No.

83-6-2388 especially encourages

self-censorship by its vague standards.

The ordinance does not define "regular

course of business, repeatedly," or

"principal part," yet it uses these

terms to draw the line at where a place

selling or exhibiting obscene materials

becomes a public nuisance. Ordinance

No. 83-6-2388 at Sections 19-152 and

Alec Sy ct aA ADI ERIN Me hecnicibhs san TN

B-17

19-153. There is no way that a business

person could know in advance whether

once-a-week or once-a-day amounted to

"repeatedly" or whether two magazines or

twenty magazines comstituted a

"principal part."

CONCLUSION

Materials which have been properly

determined to be legally obscene are not

within the free speech protection

afforded by the constitution and,

therefore, are subject to regulation.

See Sullivan, 372 U.S. at 65, 83 S.Ct.

at 637. Accordingly, although the issue

is not squarely presented in the present

case, an ordinance which focused a

government's public nuisance powers

solely upon obscene materials would not

appear to be invalid. On the other

hand, non-obscene materials are entitled

to great protection, and therein lies

the danger of Ordinance No. 83-6-2388.

B-18

By going beyond the obscene materials

themselves and focusing on the places

where the obscene materials are sold or

exhibited, the ordinance improperly

intrudes upon protected expression.

Because of this focus on places rather

than materials the court finds that

Sections 19-152(A) and (B) and Section

19-153(A) are unconstitutional. See

Eikenberry, 715 F.2d at 493-496, and

cases cited therein; Vance, 587 F.2d at

164-166; Busch 550 P.2d at 600. The

' City has cited one case supporting a

contrary conclusion, State ex rel.

Kidwell v. U.S. Marketing, 631 P.2d 622

(Idaho 1981), however, the court has

chosen to rely upon the cases cited

above; cases which direct a finding that

the ordinance provisions are’

unconstitutional. The court further

concludes that Section 19-152(C) and

Section 19-153 (B) are dependent upon

B-19

the nuisance declarations in Sections

19-152(A) and (B) and Section 19-153(A)

and, therefore, are also

unconstitutional. The sections are

dependent because even though they refer

to materials rather than places, they

only refer to materials which are sold

or exhibited at places defined as public

nuisances under the sections which the

court has declared unconstitutional.

An appropriate order will be

entered.

DATED: 1-5-85

Edward H. Johnstone, Judge

United States District Court

APPENDIX '"'C"

City of Paducah, Kentucky Public

Nuisance Abatement Ordinance No.

83-6-2388, passed by the Board of

Commissioners of Paducan, Yentouurky an.

June 14, 1983.

(Reference: Petition for Writ of

Certiorari at page 5, line 19; page

9, line 17; page 11, lines 2, 5,

14).

»..-C-l thru C-29

C-1

ORDINANCE NO. 83-6-2388

AN ORDINANCE OF THE CITY OF PADUCAH

DECLARING THE COMMERCIAL EXPLOITATION OF

OBSCENE MOTION PICTURE FILMS AND

OBSCENITY PUBLICATIONS TO BE CONTRARY TO

PUBLIC HEALTH, SAFETY, AND GENERAL

WELFARE, AND A PUBLIC NUISANCE;

DECLARING ANY PLACE DISPLAYING OR

EXHIBITING SUCH OBSCENE MOTION PICTURE

FILMS OR PUBLICATIONS TO BE A PUBLIC

NUISANCE PER SE; MAKING ALL OBSCENE

MATTER AND PUBLICATIONS POSSESSED IN

SUCH PLACES A PUBLIC NUISANCE PER SE;

PROVIDING FOR NOTICE AND LEGAL

PROCEEDINGS TO ABATE THE SAME; AND

PROVIDING A PROCEDURE FOR ASSESSMENT AND

COLLECTION OF COSTS OF ABATEMENT.

BE IT ORDAINED BY THE BOARD OF

COMMISSIONERS OF THE CITY OF PADUCAH,

KENTUCKY:

Section 1. That the Board of

Commissioners create Article VII of

C-2

Chapter 19 of the Code of Ordinances of

the City of Paducah by adopting Sections

19-150, 19-151, 19-152, 19-153, 19-154,

19-155, 19-156, and 19-157 to read as

follows:

"SECTION 19-150. PURPOSE; POLICY;

AUTHORITY; APPLICATION.

The Board of Commissioners find

that the crass commercial exploitation

of explicit sexual conduct through the

public exhibition of obscene films and

the sale of obscene publications,

constitutes a debasement and distortion

of a sensitive key relationship of human

existence, central to family life,

community welfare and the development of

human personality; that such

exploitation is indecent and offensive

to the senses and to public morals and

interferes with the interest of the

public in the quality of life and total

community environment, the tone of

C-3

commerce in the City, property values,

and the public safety; and that the

continuation of such activities is

detrimental to the best health, safety,

convenience, good morals, and general

welfare of the City of Paducah and of

the residents, citizens, inhabitants,

and business thereof and is unlawful and

may not be made the subject of a lawful

license. Pursuant to Section 82.082 of

the Kentucky Revised Statutes, the Board

of Commissioners hereby declares such

activities to be public nuisances, and

establishes procedures for the abatement

thereof and for the assessment and

collection of costs of abatement which

may be incurred by the City incident to

such abatement. This ordinance shall

apply to existing establishments which

are presently engaged in the activities

herein declared to be public nuisances.

C-4

"SECTION 19-151. DEFINITIONS.

(A) "Knowledge" or "knowledge of

such nuisance" means having knowledge of

the contents and character of the

patently offensive sexual conduct which

appears in the obscene matter.

(B) "Obscene matter" means matter,

taken as a whole, the predominant appeal

of which to the average person, applying

contemporary standards, is to prurient

interest, i.e., a shameful or morbid

interest in nudity, sex, or excretion;

and is matter which taken as a whole

goes substantially beyond customary

limits of candor in description or

representation of such matters; and is

matter which taken as a whole is utterly

without redeeming social importance.

(1) The predominant appeal to

prurient interest of the

matter is judged with

reference to average adults

(2)

C-5

unless it appears from the

nature of the matter or the

circumstances of its

dissemination, distribution or

exhibition, that it is

designed for clearly defined

deviant sexual groups, in

which case the predominant

appeal of the matter shall be

judged with reference to its

intended recipient group.

Where circumstances of

production, presentation,

sale, dissemination,

distribution, or publicity

indicate that matter is being

commercially exploited by the

defendant for the sake of its

prurient appeal, such evidence

is probative with respect to

the nature of the matter and

can justify the conclusion

C-6

that the matter is utterly

without redeeming social

importance.

Nothing herein contained is intended to

include or proscribe any matter which,

when considered as a whole, and in the

context in which it is used, possesses

serious literary, artistic, political or

scientific value.

(C) "Matter" shall mean a motion

picture film or a publication, or both;

(D) "Motion picture film" shall

include any:

(1) film or plate negative;

(2)° §iie or plate positive;

(3) film designed to be

projected on a screen for

exhibition;

(4) films, glass slides or

transparencies, either in

negative or positive form

designed for exhibition by

projection on a screen;

C-7

(5) Video tape or any other medium

used to electronically

reproduce images on a screen.

(E) "Person" means any individual,

partnership, firm, association,

corporation, or other legal entity;

(F) "Place" includes, but is not

limited to, any building, structure or

place, or any separate part or portion

thereof, whether permanent or not, or

the ground itself. '"Place'' also

includes any money, slug or

coin-operated vending machine, or

mechanical or electronically controlled

vending machine, which is located upon

or is accessible from a public sidewalk

or thoroughfare;

(G) "Publication" shall include

any book, magazine, newspaper, article,

pamphlet, writing, printing,

illustration, picture, sound recording,

or a motion picture film when such film

C-8

is offered for sale or exhibited in a

coin-operated machine.

(H) "Sale" means a passing of

title or right of possession from a

seller to a buyer for valuable

consideration, and shall include, but is

not limited to, any lease or rental

arrangement or other transaction wherein

or whereby any valuable consideration is

received for the use of, or transfer of a

possession of, obscene matter.

SECTION 19-152. OBSCENE FILMS AND

THEATERS EXHIBITING THE SAME DECLARED A

PUBLIC NUISANCE PER SE; ADMISSION PRICE

RECEIVED AFTER SERVICE OF RESOLUTION TO

BE REGARDED AS A PUBLIC NUISANCE PER

ACCIDENS.

The following are declared to be

public nuisances per se:

(A) Any and every place in the

City of Paducah where obscene films are

publicly exhibited as a regular course

C-9

of business, or possessed for the

purpose of such exhibition;

(B) Any and every place in the

City of Paducah where an obscene film is

publicly and repeatedly exhibited, or

possessed for the purpose of such

exhibition; and

(C) Any and every obscene film

which is publicly exhibited or possessed

for such purpose at a place which is a

public nuisance under this section.

From and after service on the

theater, or its manager, or acting

manager, or person then in charge of

such place, of a certified copy of this

ordinance and a certified copy of the

resolution provided for herein, all

monies paid thereafter as admission

price to such exhibitions shall be

regarded as being a public nuisance per

accidens, as personal property used in

conducting and maintaining a declared

C-10

public nuisance as to which forfeiture

will be requested in the judicial

proceedings required herein.

"SECTION 19-153. PLACE OF BUSINESS

IN WHICH OBSCENE PUBLICATIONS CONSTITUTE

A PRINCIPAL PART OF THE STOCK IN TRADE

AND OBSCENE PUBLICATIONS POSStSSED

THEREIN DECLARED A PUBLIC NUISANCE PER

SE; VALUABLE CONSIDERATION RECEIVED FOR

SALE AFTER SERVICE OF RESOLUTION TO BE

REGARDED AS A PUBLIC NUISANCE PER

ACCIDENS.

The following are declared to be

public nuisances per se:

(A) Any and every place of

business in the City of Paducah in which

obscene publications constitute all of

the stock in trade, or a principal part

thereof. Where such obscene

publications constitute only a part of

the stock in trade and are located in a

place or places within such business

C-11

which are capable of demarcation, such

place or places constitute the public

nuisance which requires abatement; and

(B) Any and every obscene

publication possessed at a place which

is a public nuisance under this Section.

From and after service on the

place, or its manager, or acting

Manager, or person then in charge of

such place, of a certified copy of this

ordinance and a certified copy of the

resolution provided for herein, all

valuable consideration received for the

sale of such obscene publications shall

be regarded as being a public nuisance

per accidens, as personal property used

in conducting and maintaining a declared

public nuisance, as to which forfeiture

will be requested in the judicial

proceedings required herein.

C-12

"SECTION 19-154. KNOWLEDGE OF

NUISANCE PRESUMED FROM SERVICE OF COPY

OF RESOLUTION; RESPONSIBILITY OF PARTIES

THEREFOR; ABATEMENT OF SUCH NUISANCES.

(A) Upon receiving notice through

service of a certified copy of this

ordinance and of a certified copy of the

resolution provided for herein, any and

every person who shall own, legally or

equitably, lease, maintain, manage,

conduct, or operate a place in the City

of Paducah which is declared to be a

public nuisance as set forth and stated

in Section 19-152 or Section 19-153 of

the Code of Ordinances of the City of

Paducah, is deemed to be a person who

has knowledge of such nuisance for the

purpose of this ordinance and is,

thereafter, responsible for its

maintenance, and shall be liable

therefor.

C-13

(B) The places and subject matter

declared to be public nuisances under

Section 19-152 or Section 19-153 of the

Code of Ordinances of the City of

Paducah shall be abated, as provided for

herein.

"SECTION 19-155. ACTION TO BE

TAKEN BY BOARD OF COMMISSIONERS.

Upon a specific finding that a

public nuisance, as defined in Section

19-152 or Section 19-153 of the Code of

Ordinances of the City of Paducah,

exists in the City of Paducah, the Board

of Commissioners, in applying the

provisions of this ordinance to such

nuisance, shall provide for the

following by resolution:

(A) Declare the fact that such

nuisance exists;

(B) Set forth the description or

legal description and street address of

the real property which constitutes the

nuisance.

C-14

(C) Set forth a statement of facts

upon which the Board of Commissioners’

declaration of nuisance is based;

(D) Order the revocation of all

licenses and permits which have been

issued as a part of the operation of

such business, subject to confirmation

by the court in the judicial proceedings

required herein. Criminal proceedings

for transacting business without a

license at such address shall not be

filed until the order of license

revocation by the Board of Commissioners

has been confirmed by judicial order;

(E) Order the Corporation Counsel

to give written notice to all persons

named in Section 19-154(a) of the Code

of Ordinance of the City of Paducah,

public nuisances immediately, by

terminating the exhibitions of such

obscene film or films and sale or

offering for sale of such publications,

C-15

or causing the same to be terminated;

(F) Order the Corporation Counsel

to proceed as directed in Section 19-156

of the Code of Ordinances of the City of

Paducah and do all things necessary to

abate such public nuisance through

judicial proceedings and to conclude

such proceedings as expeditiously as is

permissible under the law;

(G) Inform and give notice to

persons named in Section 19-154(A) of

the Code of Ordinances of the City of

Paducah that:

(1) The Board of Commissioners has

determined that a public

nuisance presently exists at

such place and address, and

has revoked the licenses and

permits at that place, subject

to court confirmation, and

that, under Section 19-154 of

the Code of Ordinances of the

(2)

C-16

City of Paducah they are

deemed to have knowledge

thereof and are responsible

therefor;

The Board of Commissioners has

ordered the Corporation

Counsel, as provided for under

Section 19-156 of the Code of

Ordinances of the City of

Paducah, to commence legal

proceedings naming such

persons as defendants in a

civil action to abate the same

judicially, and to seek

recovery in said action of the

costs of abatement, including

investigative costs, court

costs, attorney fees, and

other expenses and that under

Section 19-157 of the Code of

Ordinances of the City of

Paducah, the costs of

(3)

C-17

abatement are made a special

assessment against the parcel

of land upon which the

nuisance is maintained, but

only against the interest, if

any therein, of the person

responsible for maintaining

such nuisance and, upon their

determination by the Board of

Commissioners, will, by

separate resolution, be made a

lien against the real property

interest of the person

responsible for maintaining

such nuisance;

Ali obscene motion picture

film or films or obscene

publications being used in

conducting and maintaining

such public nuisances are

considered to be contraband

and the subject of forfeiture;

(4)

(5)

C-18

The obscene motion picture

film or films or obscene

publications which are being

used in conducting and

maintaining such public

nuisance will be needed at the

hearing in the court having

jurisdiction of the legal

proceedings brought by the

Corporation Counsel.

From and after service on the

place or its manager or acting

manager, or person then in

charge of such place, of a

certified copy of this

ordinance and a certified copy

of such resolution, any and

all monies paid as admission

price to the exhibition or

exhibitions of such obscene

motion picture films, and

valuable consideration

satel 2

(H)

C-19

received for the sale of such

obscene publications, shall be

regarded as being a public

nuisance per accidens, as

personal property used in

conducting and maintaining

such nuisance, and as gain

derived from a wrongful act,

and that forfeiture of the

same will be requested in the

judicial proceedings required

herein;

Order that a certified copy of

said resolution and a certified copy of

this ordinance be delivered forthwith in

any manner normally used to effectuate

personal service of process as to all

persons of record having any legal or

equitable interest in the real property

and to the regular or acting manager or

persons in charge of the place therein

declared a public nuisance.

C-20

"SECTION 19-156. ACTION TO BE

TAKEN BY DISTRICT ATTORNEY.

Upon a specific finding by

resolution of the Board of Commissioners

of the fact that a public nuisance

exists at a particular location, the

Corporation Counsel shall:

(A) Forthwith, but not later than

five (5) working days after passage of

said resolution, commence legal

proceedings by the filing of a civil

action seeking the following relief:

(1) an order that the subject

matter identified by the Board

of Commissioners in said

resolution is obscene as

defined herein;

(2) an order that each place named

by the Board of Commissioners

is a public nuisance and that

the action taken by the Board

of Commissioners to revoke the

(3)

(4)

(5)

C-21

licenses issued to that place

of business was lawful;

an injunction enjoining and

restraining all persons

maintaining said nuisance from

possessing or publicly

exhibiting said obscene motion

picture films, or from selling

or possessing for sale said

obscene publications at any

time in the future in the City

of Paducah, and such other

injunctive relief as the court

may order;

an order that all positive

prints of such obscene films

and all such obscene

publications or copies of

reproductions thereof be

forfeited as contraband;

an accounting of all monies

paid as admission price to the

(6)

C-22

exhibition or exhibitions of

such obscene motion picture

films and valuable

consideration received for the

sale of such obscene

publications from and after

the time the person or persons

maintaining said nuisance

received a copy of the

resolution of the Board of

Commissioners' finding that a

public nuisance and a judgment

that such monies are gain

derived from a wrongful act

and a public nuisance;

an order that all admission

price monies or valuable

consideration received and

enumerated in the court

ordered accounting be

forfeited as required by law;

Paet Se |

C-23

(7) judgment of the City of

| Paducah for all costs expended

in abating the public

nuisance, including

investigative costs, court

costs, reasonable attorney

fees, and such other expenses

as are provided for herein;

and

(8) all other relief as the court

may deem proper.

(B) File a notice of the pendency

of the action in the office of the

McCracken County Clerk, giving the names

of the parties, the object of the

action, and a description of the

property thereby affected.

"SECTION 19-157. COST OF

ABATEMENT; ASSESSMENT; ASSESSMENT

REPORT; HEARING ON ASSESSMENT REPORT;

ASSESSMENT RESOLUTION; COLLECTION.

C-24

(A) The cost of abatement is

hereby declared a special assessment

against the parcel of land upon which

the public nuisance is maintained, but

only against the interest, if any

therein, of the person or persons

determined in the action to be

responsible for maintaining such

nuisance. As used herein, the term

"cost of abatement" shall include, but

is not limited to, the following: (1)

investigative costs; (2) court costs;

(3) reasonable attorney fees; and (4)

printing costs for any trial and appeal.

(B) Upon the filing of a County

Court judgment adjudicating the

existence of a public nuisance in any

proceedings instituted pursuant to these

sections, the Corporation Counsel shall

file with the City .Clerk a written

report containing his account of the

expenses of abatement, the person or

C-25

persons determined in the action to be

responsible for maintaining such

nuisances, a description of the

premises on which such abatement

occurred, and the assessment against

each lot or parcel of land proposed to

be levied to pay the cost thereof. The

clerk shall then set the report for

hearing by the Board of Commissioners

and shall, not less than ten (10) days

prior to the date set for such hearing,

serve notice of assessment upon the

owners, which notice shall specify the

day, hour and place when the Board of

Commissioners shall hear and pass upon

the assessment report together with any

objections or protests thereto.

(C) Upon the date and hour fixed

for the hearing, the Board of

Commissioners shall hear and pass upon

the assessment report together with any

objections or protests which may be

C-26

raised by any of the owners of any

property liable to be assessed for the

costs of abatement of any other

interested persons. The Board of

Commissioners may make such revision,

correction or modifications in the

report as it may deem just, after which

the report as submitted, or as revised,

corrected or modified, shall be

confirmed. The Board of Commissioners

may adjourn the hearings from time to

time. The decisions of the Board of

Commissioners on all protests and

objections which may be made shall be

final and conclusive.

(D) Upon confirmation of the

assessment report, the Board of

Commissioners shall adopt a resolution

specifying the amount assessed against

each respective parcel as shown on the

last available assessment roll in

accordance with the-assessment report.

C-27

Unless otherwise provided in such

resolution, any such assessment shall

become due thirty (30) days after

adoption of such resolution and shall

thereafter bear interest at the rate of

fifteen per cent (15%) per year. The

Board of Commissioners may provide in

the resolution for payment to become due

at any later date, in total sum or in

installments.

(E) All assessments may be paid by

tender of the amount due to the City

Treasurer. The City Treasurer, prior to

August 10 of each year, shall determine

if any assessment, or portion thereof,

is due and unpaid, and if he so

determines, such assessment shall be

collected at the same time and in the

Same manner as ordinary City taxes are

collected and shall be subject to the

same penalties and the same procedure

and sale in case of delinquency as

C-28

provided for ordinary City taxes. All

laws applicable to the levy, collection

and enforcement of municipal taxes shall

be applicable to the levy, collection

and enforcement of municipal taxes shall

be applicable to such special

assessment.

SECTION 2. If any section,

subsection, sentence, clause, phrase or

portion of this ordinance is for any

reason held to be invalid or

unconstitutional by.the decision of any

court of competent jurisdiction, such

decision shall not affect the validity

of the remaining portions of this

ordinance. The Board of Commissioners

of the City of Paducah hereby declares

that it would have adopted this

ordinance and each section, subsection,

sentence, clause, phrase or portion

thereof irrespective of the fact that

any one or more sections, subsections,

C-29

sentences, clauses, phrases or portions

be declared invalid or unconstitutional.

SECTION 3. This ordinance shall be

read on two separate days and will be

effective upon publication of a

certified summary thereof.

Mayor

Introduced by the Board of

Commissioners May 31, 1983

Passed by the Board of

Commissioners June 14, 1983

Recorded by Louise McKinney, City

Clerk, June 14, 1983

Published by The Paducah Sun

June 20, 1983.

APPENDIX "D"

Resolution of the Board of

Commissioners of the City of Paducah,

Kentucky passed August 3, 1983, finding

the business known as Tammy's Book Store

To Be A Public Nuisance Pursuant to

Section 19-153 of the Code of Ordinances

of the City of Paducah As A Place of

Business In Which Obscene Publications

Constitute All of the Stock in Trade or

a Principle Part of the Stock in Trade

and Revoking All Licenses and Permits

Except That No Criminal Proceedings May

Be Filed for Transactions Business

Without A License Until The Fact of

Public Nuisance Has Been Confirmed by a

Decree of the McCracken County Court in

Judicial Proceedings.

(Reference: Petition for Writ of

Certiorari at page 13 line 3).

....-D-1 thru D-16

D-1

RESOLUTION

WHEREAS, on the 14th day of June,

1983, the Board of Commissioners of the

City of Paducah adopted Ordinance No.

83-6-2388 declaring the commercial

exploitation of obscene motion picture

films and obscene publications to be

contrary to the public health, safety,

and general welfare, and a public

nuisance, and

WHEREAS, on June 22, 1983, Officer

Kermit Perdew visited a business located

at 243 Brown Street, Paducah, Kentucky,

known as Tammy's Book Store, and

WHEREAS, at that time said officer

observed motion pictures, magazines, and

other material which taken as a whole

the appeal to the average person is to

the prurient interegt and the matter,

taken as a whole, lacks any redeeming

social importance, and

D-2

WHEREAS, on July 2, 1983 Officer

Kermit Perdew returned to the place of

business known as Tammy's Book Store and

purchased the following material:

"EROTIC INTERLUDE", (Where one

man's woman is another man's pleasure),

a video tape (Beta); and "BACK DOOR"

NUMBER TWO (''Come with us on a Journey

and see just how much fun, anal sex can

be!"), and

WHEREAS, on July 10, 1983, Officer

Kermit Perdew again went to the premises

of Tammy's Book Store and purchased the

following material: "THE FILTHY RICH"

(the secret pleasures of those who have

it made), a video tape (Beta); and

"MR/MRS" ("he had this thing for women's

clothes.), and

WHEREAS, the Board of Commissioners

conducted a public hearing on August 3,

1983, at the hour of 1:00 p.m. at which

time the Board of Commissioners reviewed

all of the above mentioned materials.

D-3

NOW THEREFORE, BE IT RESOLVED BY

THE BOARD OF COMMISSIONERS OF THE CITY

OF PADUCAH, AS FOLLOWS:

SECTION 1. The Board of

Commissioners hereby finds the following

facts: On July 2, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's Book

Store, sold the following materials:

Caballero Control Corporation

Presents "EROTIC INTERLUDE", (Where one

man's women is another man's pleasure).

A video tape (Beta) with approximate

running time of 84 minutes.

This material contains numerous

explicit scenes of sex acts between

males and females, females and females,

including natural and contorted sexual

intercourse, felatio and cunnilingus,

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

D-4

obscene under the ordinance of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 2. The Board of

Commissioners hereby finds the following

facts: On July 2, 1983, the place of

business located at 243 Brown Street,

Hedaedh,; Kentucky, known as Tammy's Book

Store, sold the following materials:

"BACK DOOR" NUMBER TWO ("'Come with us on

a Journey and see just how much fun,

anal sex can be!") from the publishers

of Swedish Erotica Magazine and Books.

A 36 slick-page magazine containing

color photographs in an explicit manner,

sexual relations between men and women,

including sexual intercourse (bith

natural and contorted) and acts of

cunnilingus and felatio, and anal

intercourse.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

D-6

SECTION 3. The Board of

Commissioners hereby finds the following

facts: On July 10, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's Book

Store, sold the following material:

Swedish Erotica presents

(distributed by Caballero Control

Corporation) ''THE FILTHY RICH" (the

secret pleasures of those who have it

made). A video tape (Beta) with

approximate running time of 80 minutes.

The material contains numerous

explicit scenes of sex acts between

males and females, including natural and

contorted sexual intercourse, felatio

and cunnilingus, and masturbation.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

D-7

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 4. The Board of

Commissioners hereby finds the following

facts: On July 10, 1983, the place of

business located at 243 Brown Street,

Paducah, Kentucky, known as Tammy's

Book Store, sold the following material:

"MR/MRS" (he had this thing for

women's clothes.) From the publishers

of Swedish Erotica magazines and books.

A 36 click-page magazine containing

color photographs depicting in an

D-8

explicit manner sexual relations between

men and women, including sexual

intercourse (both natural and contorted)

and acts of cunnilingus and felation.

The Board of Commissioners after

reviewing said material on August 3,

1983, finds that said material is

obscene under the ordinances of the City

of Paducah and the statutes of the

Commonwealth of Kentucky, in that the

matter taken as a whole, the predominant

appeal to the average person, applying

contemporary community standards, is to

the prurient interest. The material,

taken as a whole, goes substantially

beyond customary limits of candor of

description and representation of such

matters and, taken as a whole, the

material is utterly without redeeming

social importance.

SECTION 5. The Board of

Commissioners of the City of Paducah

D-9

hereby finds that the business known as

Tammy's Book Store is owned and operated

by Investment Entertainment, Inc. with

its principal place of business at 243

Brown Street, Paducah, Kentucky.

SECTION 6. The Board of

Commissioners hereby finds that the

business known as Tammy's Book Store is

a public nuisance and that all davedtial

possessed at 243 Brown Street, Paducah,

Kentucky is a public nuisance pursuant

to Section 19-152 and 19-153 of the Code

of Ordinances of the City of Paducah.

SECTION 7. Tammy's Book Store is

located at 243 Brown Street, Paducah,

Kentucky, more particularly described as

follows:

Beginning on the south side of

Brown Street at a tack of distance

of 94.32 feet in a westerly

direction from a southwest

intersection of Brown Street and

Beltline Highway (now Irvin Cobb

Drive); thence at a right angle in

a southerly direction a distance of

125 feet to an iron pipe; thence at

D-10

a right angle in a westerly

direction a distance of 50 feet to

an iron rod; thence at a right

angle in a northerly direction a

distance of 125 feet to an iron rod

on the south line of Brown Street;

thence with the south line of Brown

Street at a right angle a distance

of 50 feet in an easterly direction

to the point of beginning.

Beginning the same property in all

respects that was conveyed to

Investment Entertainment, Inc. by

deed dated the 21st day of March,

1983, and recorded in Deed Book

653, Page 239, in the McCracken

County Court Clerk's Office.

SECTION 8. The Board of

Commissioners hereby orders revocation

of all licenses and permits that have

been issued as a part of the operation

of Tammy's Book Store and/or Investment

Entertainment, Inc. subject to

confirmation by the McCracken Circuit

Court in judicial proceedings

hereinafter required.

SECTION 9. The Board of

Commissioners hereby orders the

Corporation Counsel to give written

D-11

notice to all persons associated with

243 Brown Street, Paducah, Kentucky,

including but not limited to Investment

Entertainment, Inc., all employees and

managers of Tammy's Book Store and/or

Investment Entertainment, Inc. to abate

the public nuisances immediately by

terminating the exploitation of obscene

film or films for sale or offering for

sale of such publication or causing the

same to be terminated.

SECTION 10. The Board of

Commissioners further orders the

Corporation Counsel to proceed as

directed under Section 19-156 of the

Code of Ordinances of the City of

Paducah and to do all things necessary

to abate such public nuisance through

judicial proceedings and to conclude

such proceedings as expeditiously as

possible under the law. It is ordered

that a certified copy of this Resolution

D-12

shall be served on the statutory agent

of Investment Entertainment, Inc., all

officers and employees and agents

thereof, which can be found within the

City of Paducah, that said business has

been declared a public nuisance and has

revoked the licenses and permits at that

place, subject to court confirmation,

and that under Section 19-154 of the

Code of Ordinances of the City of

Paducah they are deemed to have

knowledge thereof and are responsible

therefor. They shall further be

notified that the Board of Commissioners

has ordered the Corporation Counsel as

provided under Section 19-156 of the

Code of Ordinances of the City of

Paducah to commence legal proceedings

naming such persons as defendants in a

civil action to abate the same

judicially and to seek recovery in saic

action of the cost of said abatement,

D-13

including investigation costs, court

costs, attorneys fees, and other

expenses and under Section 19-157 of the

Code of Ordinances of the City of

Paducah. The costs of abatement are

made a special assessment against the

parcel of land upon which the business

is maintained.

The Board of Commissioners, will,

by separate resolution, place a lien

against the real property interest or

the person responsible for maintaining

such nuisance. Said persons are to be

further informed that all obscene motion

picture film or films or obscene

publications being used and maintaining

such public nuisance are considered to

be contraband and subject to forfeiture.

Said persons are to be further notified

that the obscene motion picture film or

films or obscene publications which are

being used in conducting and maintaining

D-14

such public nuisance will be needed at

the hearing in court having jurisdiction

of legal proceedings brought by the

Corporation Counsel. Said persons shall

further be notified that from and after

the serving of notice on the place or

its managing or acting manager or person

then in charge of such place, or a

certified copy of Ordinance No.

83-6-2388 of the City of Paducah and a

certified copy of this Resolution, any

and all monies paid as admission price

to exhibitions of such obscene motion

picture films, and valuable

consideration received for the sale of

such obscene publications, shall be

regarded as a public nuisance per

accident as personal property used in

conducting and maintaining such

nuisance, and as being gain derived from

a wrongful act, and the forfeiture of

same will be requested in the judicial

proceedings required herein.

D-15

SECTION 11. The Board of

Commissioners hereby orders that a

certified copy of this Resolution and

that a certified copy of Ordinance No.

83-6-2388 be delivered forthwith by the

Police Department of the City of

Paducah, or by certified mail properly

deposited with the United States Post

Office to all person of record having

any legal or equitable interest in the

real property, and to the regular or

acting manager or person in charge of

the place therein, declared a public

nuisance.

SECTION 12. This Resolution is

adopted according to law, and shall be

effective immediately upon its adoption.

Mayor

Passed by the Board of

Commissioners August 3, 1983

Recorded by Louise McKinney, City

Clerk, August 3, 1983.

D-16

I hereby certify that the above is a

true and correct copy of a Resolution

adopted by the City of Paducah on August

3, 1983.

City Clerk

APPENDIX "E"

Complaint in the United States

District Court For the Western District

Of Kentucky, at Paducah, entitled

"Investment Entertainment, Inc. v. City

of Paducah, et al.,” Civi. Action File

No. CB3-0209P(J) , filed August 3, 1983.

(Reference: Petition for Writ of

Certiorari at page 3 line 10; page

15, line 16).

osecb@l Cru E-8

Amended Complaint in the United

States District Court For The Western

District Of Kentucky at Paducah,

entitled "Investment Entertainment, Inc.

v. City of Paducah, et al. , Civil

Action File No. 83-0208-P(J), August 10,

1983.

.».eb-9 thru E-15

E-1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action File No. C83-0208P(J)

INVESTMENT ENTERTAIN-

MENT, INC.

PLAINTIFF

VS. COMPLAINT

)

)

)

)

)

)

)

CITY OF PADUCAH: )

JOHN K. PENROD, AS )

MAYOR, AND JOE )

VITERISI, ROBERT )

A. COLEMAN, HAROLD )

(SHORTY) FORD AND )

JAMES W. FLYNN, AS )

COMMISSIONERS OF SAID )

CITY: )

JAMES W. UTTER, AS )

CORPORATION COUNSEL, )

AND THURMAN BAKER, AS )

TREASURER THEREOF )

)

)

DEFENDANTS

Plaintiff, Investment

Entertainment, Inc., for its complaint

herein says that:

1. The jurisdiction of this Court

is invoked under the Constitution of the.

United States and the First and

Fourteenth Amendments thereto; under

Title 42, United States Code, Section

E-2

1983, providing that every person who

under color of any statute, ordinance,

regulati .n, custom or usage of any State

subjects, or causes to be subjected, any

citizen of the United States or other

person within the jurisdiction thereof

to the deprivation of any rights,

privileges or immunities secured by said

Constitution shall bé liable to the

party injured in an action at law, suit

in equity or other proper proceeding for

redress; under Title 28, United States

Code, Section 1343 (3), conferring upon

the United States District Court's

original jurisdiction of any civil

action authorized by law to be commenced

by any person to redress the deprivation

under color of any State law, statute,

ordinance, regulation, custom or usage,

of any right, privilege of immunity

secured by the said Constitution; and

under Title 28, United States Code,

E-3

Section 2201, providing for the

rendition of declaratory judgments by

the said courts.

2. Plaintiff is and was at all

times hereinafter mentioned a

corporation organized and existing under

the laws of the State of Tennessee, and

is and was at all times hereinafter

mentioned duly authorized under the laws

of the State of Kentucky to transact

business in said latter State. At all

times hereinafter mentioned, plaintiff

swned and operated, and now owns and

Operates, at Paducah, Kentucky, a place

of business for the exhibition and/or

sale of motion picture films, video

tapes, and video cassettes, books,

magazines and other materials of like

nature, known as "Tammy's Book Store."

3. The defendant City of Paducah

is a municipal corporation of the State

,\of Kentucky of the second class,

E-4

organized and operating under the city

manager form of government. The

defendant, John K. Penrod, is the Mayor

of said City of Paducah, and the

defendants, Joe Viterisi, Robert A.

Coleman, Harold (Shorty) Ford and James

W. Flynn are its Commissioners, and

together said Mayor and Commissioners

constitute the Board of Commissioners,

which is the legislative body of said

city. The defendant, James W. Utter is

Corporation Counsel of said city, and

the defendant, Thurman Baker is its

Treasurer.

4. On June 14, 1983, the said

Board of Commissioners enacted an

ordinance designated as Ordinance No.

83-6-2388, a copy of which is annexed to

this complaint part thereof as Exhibit

"A" thereto; and on July 13, 1983, the

defendant, Utter, as Corporation Counsel!

aforesaid notified plaintiff in writing

of the intention of the defendant, City

E-5

of Paducah, to institute proceedings

against plaintiff under said ordinance.

A copy of said notice is annexed to this

complaint as part thereof as Exhibit "'B"

thereto. Thereafter, the date of the

hearing before the Board of

Commissioners mentioned in said notice

was amended to August 3, 1983, and said

hearing is to be held on that date.

5. The aforesaid ordinance is

unconstitutional, invalid,

unenforceable, null and void, both on

its face and as applied to plaintiff, as

violative of the Constitution of the

United States and the First and

Fourteenth amendments thereto, and of

the rights of the plaintiff under said

Constitution and said Amendments, in

that the provisions of said ordinance

and the enforcement procedures set forth

therein constitute an unconstitutional

prior restraining upon the exhibition

E-6

and distribution of literary and

pictorial matter protected therefrom by

the First and Fourteenth Amendments to

the Constitution of the United States,

and a deprivation of plaintiff's rights,

liberty and property without due process

of law.

6. Unless enjoined and restrained

therefrom by this Court, defendants will

continue to proceed against plaintiff

under the provisions and procedures of

said unconstitutional ordinance, will

impose unconstitutional prior restraint

upon its exhibition and distribution of

said protected materials, and will

deprive plaintiff of its

constitutionally protected rights,

liberty and property without due process

of law, all in violation of plaintiff's

constitutional rights. As a result,

plaintiff will suffer immediate and

irreparable injury, loss and damage

therefrom, to redress which plaintifr

E-7

has no adequate remedy at law and

therefore seeks equitable relief by way

of injunction.

7. An actual controversy within

the jurisdiction of this Court exists

between plaintiff and defendants, in

that plaintiff contends that said

ordinance and all provisions thereof and

procedures prescribed thereby are

invalid, unconstitutional,

unenforceable, null and void, both on

their face and as applied to plaintiff,

whereas defendants contend the contrary.

WHEREFORE, plaintiff demands (1) a

declaratory judgment to the effect that

said ordinance is unconstitutional and

unenforceable; (2) that defendants be

permanently and perpetually enjoined and

restrained from proceeding against

plaintiff under said ordinance or any

E-8

provision thereof; and (3) the recovery

of its costs.

Joseph S. Freeland 7

FREELAND, GLANVILLE & MEGIBOW

910 Citizens’ Bank Building

Paducah, Kentucky 42001

Attorney for Plaintiff

(502) 442-0121

E-9

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action File No. C83-0208-P(J)

INVESTMENT ENTERTAIN- )

MENT, INC. )

)

PLAINTIFF )

)

VS. ) AMENDED

) COMPLAINT

CITY OF PADUCAH, )

ET AL. )

)

DEFENDANTS )

Plaintiff. Investment

Entertainment, Inc., amends its

complaint before service of any

responsive pleading by any of the

defendants, and for amendment adds

thereto the following averments:

1. On August 3, 1983, the

defendants Penrod, as Mayor, and

Viterisi, Coleman, Ford, Flynn, as

Commissioners, constituting the Board of

Commissioners of the defendant City of

Paducah, adopted a resolution of the

said Board, a copy of which is annexed

E-10 |

hereto and made a part of this amended

complaint as Exhibit "C" thereto.

2. On August 5, 1983, the

defendant Utter, as Corporation Counsel

of said defendant city, issued and

caused to be served upon plaintiff,

together with a certified copy of said

resolution and a certified copy of the

ordinance mentioned in the complaint, a

written notice, a copy of which is

annexed hereto and made a part of this

amended complaint as Exhibit ''D"

thereto.

3. Unless enjoined and restrained

therefrom by this Court, the defendants

will proceed to carry said resolution

into effect, and to enforce its

provisions against plaintiff in

violation and deprivation of plaintiff's

rights under the Constitution of the

United States and the First and

Fourteenth Amendments thereto.

E-11

4. The said resolution is

unconstitutional, invald, enforceable,

null and void, both on its face and as

applied to plaintiff, as violative of

the Constitution of the United States

and the First and Fourteenth Amendments

thereto, and of the rights of the

plaintiff under said Constitution and

said Amendments, in the following

respects:

(a) The provisions thereof and the

procedures set forth therein constitute

unconstitutional prior restraint upon

the exhibition and distribution of

literary and pictorial matter protected

therefrom by said constitution and said

Amendments.

(b) The finding of the Board of

Commissioners that the video tapes and

magazines referred to in said resolution

are obscene is not supported by

evidence.

E-12

(c) The finding of the Board of

Commissioners, based upon viewing two

video tapes and perusing two magazines,

that plaintiff's business is a public

nuisance and that all materials

obssessed by it constitute a public

nuisance, is not supported by evidence,

and is irrational.

(d) The attempted revocation of

plaintiff's business licenses, the

attempted imposition of costs, the

attempted imposition of a lien against

plaintiff's property, and the attempts

forfeiture of plaintiff's business

receipts, all as provided by the

provisions of said resolution,

constitute a deprivation of plaintiff's

property without due process of law.

5. The attempted enforcement of

the provisions of said resolution

against plaintiff by defendants

threatens plaintiff with immediate and

E-13

irreparable injury, loss and damage

therefrom, to redress which plaintiff

has no adequate remedy at law and

therefore seeks equitable relief by way

of injunction.

6. An actual controversy within

the jurisidction of this Court exists

between plaintiff and defendants, in

that plaintiff contends that said

resolution and all provisions thereot

and procedures prescribed thereby are

unconstitutional, invalid,

unenforceable, null and void, both on

their face and as applied to plaintiff,

whereas defendants contend the contrary.

WHEREFORE, plaintiff demands (1) a

declaratory judgment to the effect that

said resolution is unconstitutional and

unenforceable; (2) that defendants be

permanently and perpetually enjoined and

restrained from proceeding against

plaintiff under said resolution or any

E-14

provision thereof; (3) the relief

demanded by its original complaint; and

(4) the recovery of its costs.

Joseph S. Freeland

FREELAND, GLANVILLE & MEGIBOW

910 Citizens' Bank Building

Paducah, Kentucky 42001

Attorney for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on August 10,

1983, I mailed a copy of the foregoing

amended complaint and annexed exhibits

to each of the following named

defendants at their respective last

known addresses: City of Paducah, P.O.

Box 2267, Paducah, Kentucky 42001; John

K. Penrod, 814 Bellevue Drive, Paducah,

Kentucky 42001; Joe Viterisi, 950 Park

Avenue, Paducah, Kentucky 42001; Robert

A. Coleman, 639 North 23rd Street,

Paducah, Kentucky 42110; Harold Ford,

195 Idlewild Drive, Paducah, Kentucky

E-15

42001; James W. Flynn, 1118 Jefferson

Street, Paducah, Kentucky 42001; James

W. Utter, P.O. Box 2267, Paducah,

Kentucky 42001; and Thurman Baker,

P.O.Box 2267, Paducah, Kentucky 42001.

Attorney for Plaintiff

APPENDIX "F"

Complaint and Petition for

Temporary and Permanent injunction filed

by the City of Paducah on August 10,

1986 in the McCracken Circuit Court.

(Reference: Petition for Writ of

Certiorari at page 16, line 9).

»oee Fol thru F-12

eee

F-1

McCRACKEN CIRCUIT COURT

CIVIL ACTION NO. 83-CI-

DIVISION NO.

CITY OF PADUCAH

KY 42001, Statutory Agent

DEFENDANT.

)

)

PLAINTIFF, ) COMPLAINT

) AND PET-

VS. ) ITION FOR

) TEMPORARY

INVESTMENT ENTERTAINMENT, ) AND PER-

INC. Serve: James L. ) MANENT

Lindblad, Citizens Bank ) INJUNCT-

Building, Paducah, ) ION

)

)

)

Comes the City of Paducah and for

its complaint and petition for temporary

and permanent injunction against the

defendant scares as follows:

1. The plaintiff, City of Paducah,

is a city of the second class,

possessing all powers conferred upon

cities of the second class by the

statutes of the Commonwealth of Kentucky

and under the general powers of city of

the second class under the statutes of

the Commonwealth of Kentucky, the City

F-2

of Paducah has the power to declare the

existence of public nuisances within the

City of Paducah.

2. The defendant, Investment

Entertainment, Inc., is a corporation

which is incorporated under the laws of

the Commonwealth of Kentucky with its

principle place of business being

Citizens Bank Building, Paducah,

Kentucky.

3. Investment Entertainment, Inc.,

is the owner of real estate known as 242

Brown Street, Paducah, Kentucky, more

particularly described as follows:

Beginning on the south side of

Brown Street at a tack a distance

£ 94.32 feet in a westerly

direction from a southwest

intersection of Brown Street and

Beltline Highway (now Irvin Cobb

Drive); thence at a right argle in

a southerly direction a distance of

125 feet to an iron pipe; thence at

a right angle in a westerly

direction a distance of 50 feet to

an iron rod; thence at a right

angle in a northerly direction a

distance of 125 feet to an iron rec

On the south line of Brown Street:

—————————————————— LUmLhlhlrlhlhlhC ST

F-3

thence with the south line of Brown

Street at a right angle a distance

of 50 feet in an easterly direction

to the point of beginning.

Being the same property in all

respects that was conveyed to

Investment Entertainment, Inc. by

deed dated the 21st day of March,

1983, and recorded in Deed Book

653, Page 239, in the McCracken

County Court Clerk's Office.

4. The defendant, Investment

Entertainment, Inc., operates a business

at 243 Brown Street, Paducah, Kentucky,

known as Tammy's Book Store.

5. On April 8, 1983, Investment

Entertainment, Inc., David Capps,

president, applied for and received a

1983 business license for retail sales

within the City of Paducah.

6. On April 8, 1983, Investment

Entertainment, Inc., David Capps,

president, applied for and received a

business license for an amusement

business at 243 Brown Street, Paducah,

Kentucky, known as Tammy's Book Store.

F-4

7. On June 14, 1983, the Board of

Commissioners adopted Ordinance No. |

83-6-2388 which declares the commerciai

exploitation of obscene motion picture

films (as defined in the ordinance) and

obscene publications to be contrary to

the public health, safety and general

welfare and a public nuisance, and

declaring a place displaying or

exhibiting such obscene motion picture

films or publications to be a public

nuisance per se; making all obscene

matter and publications in such place a

public nuisance per se; providing for

notice and legal proceedings to abate

the same and providing a procedure for

assessment and the collection of costs

of abatement. A copy of said ordinance

is attached hereto and made a part

hereof as if set out in full. (See

exhibit A.)

F-5

8. On the 22nd day of June, 1983,

a police officer of the City of Paducah

visited the business known as Tammy's

Book Store, which is operated by

Investment Entertainment, Inc. located

at 243 Brown Street, Paducah, Kentucky,

and observed the display for sale of

materials which appeared to the officer

to be in violation of the Ordinance No.

83-6-2388 of the City of Paducah,

declaring it a public nuisance to engage

in the commercial exploitation of

obscene motion picture films and obscene

publications as defined in that

ordinance.

9. On July 2, 1983, the same

officer of the City of Paducah returned

to the place of business known as

Tammy's Book Store located at 243 Brown

Street, Paducah, Kentucky, and purchased

a video tape entitled "EROTIC INTERLUDE"

and a magazine entitled "BACK DOOR

NUMBER TWO".

F-6

10. On July 10, 1983, the same

officer returned to Tammy's Book store

at the above address, and again

purchased a video tape entitled, ''THE

FILTHY RICH" and a magazine entitled,

"MR/MRS".

ll. On August 3, 1983, the Board

of Commissioners of the City of Paducah

conducted a hearing, pursuant to the

ordinance, 83-6-2388, and after

reviewing the magazines in their

entirety and the video tapes, "EROTIC

INTERLUDE" and ''THE FILTHY RICH", in

their entirety, adopted a Resolution

which is attached hereto and made a part

hereof as if set out in full as exhibit

B hereto.

12. Said Resolution pursuant to

the above referenced ordinance, found

that the business known as Tammy's Book

Store and operated by Investment

Entertainment, Inc., to be a public

~ ee ee ee ee

F-/

nuisance and the commercial exploitation

of obscene material anc ordered the

revocation of all licenses and permits

issued by the City of Paducah to Tammy's

Book Store and/or Investment

Entertainment, Inc., subject to

confirmation by McCracken Circuit Court

in a judicial proceeding to be filed

therein.

13. Pursuant to Ordinance

83-6-2388, particularly Section 19-154,

on August 5, 1983, the corporation

statutory agent, their attorney, their

general manager or person in charge of

‘the premises and all employees thereof

were served with a copy of the Ordinance

No. 83-6-2388, the Resolution adopted by

the Board of Commissioners on August 3,

1983, and a letter from the Corporation

Counsel of the City of Paducah advising

them of findings of the Board of

Commissioners and the effect of said

F-8

ordinance and resolution, a copy of

which said letter is attached hereto as

exhibit C.

14. Section 19-153 of Ordinance

83-6-2388, declares the following to be

nuisances per se:

(A) Any and every place of

business in the City of Paducah in which

obscene publications constitute all of

the stock in trade, or a principal part

thereof. Where such obscene

publications constitute only a part of

the stock in trade and are located in a

place or places within such business

which are capable of demarcation, such

place or places constitute the public

nuisance which requires abatement; and

(B) Any and every obscene

publication possessed at a place which

is a public nuisance under this Section.

From and after service on the

place, or its manager, or acting

F-9

manager, or person then in charge of

such place, of a certified copy of this

ordinance and a certified copy of the

resolution provided for herein, all

valuable consideration received for the

sale of such obscene publications shall

be regarded as being a public nuisance

per accidens, as personal property used

in conducting and maintaining a declared

public nuisance, as to which forfeiture

will be requested in the judicial

proceedings required herein.

WHEREFORE, the City of Paducah

demands that the Court find that the

subject matter identified by the Board

of Commissioners in said Resolution is

obscene as defined within Ordinance

83-6-2388, that each place named by the

Board of Commissioners is a public

nuisance and that the action taken by

the Board of Commissioners to revoke the

licenses issued to that place of

F-10

business was unlawful; enter an

injunction both temporary and permanent,

restraining all persons maintaining said

nuisance from possessing or publicly

exhibited said obscene motion picture

films, as defined in the ordinance, or f

from selling or possessing for sale said

obscene publications at any time in the

BOD VOR RI

future in the City of Paducah, and such

other injunctive relief as the court may

order; and order that all positive

prints of said obscene films and all

said obscene publication or copies or

reproductions thereof, be forfeited as

contraband, order an accounting of all

monies paid as admission price to the

exhibition or exhibitions of said obscene

motion picture films (as defined within

said ordinance) and valuable

consideration received for the sale of

such obscene publication from and after

10:00 o'clock a.m. August 5, 1983, at

F-11

which time the person or persons

maintained of said nuisance received a

copy of the Resolution of the Board of

Commissioners finding that a public

nuisance existed and grant to the City

of Paducah a judgment that such monies

are again derived from wrongful acts and

a public nuisance; order that all

admission price monies or valuable

consideration received and any money in

the court order accounting, be

forfeitured as required by law to the

City of Paducah; grent to the City of

Paducah, a judgment for all costs

expended in abating the public nuisance

including investigation costs, court

F-12

costs, reasonable attorneys fees, and

| such other expenses provided for herein

and all relief to which the court may

deem proper.

James W. Utter

Attorney at Law

P.O. Box 226/7-

City Hall

Paducah, KY 42001

ATTORNEY FOR

DEFENDANT

APPENDIX "G"

Answer of the City of Paducah to

Complaint in the United States District

Court For The Western District Of

Kentucky at Paducah, entitled

"Investment Entertainment, Inc. v. City

of Paducah, et al.," Civil Action File

(Reference: Petition for Writ of

Certiorari at page 4, line 3; page

16, line 20; page 45, line l.

....-G-l thru G-5

EEO

G-1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

CIVIL ACTION FILE NO. 83-0208-P(J)

INVESTMENT ENTERTAINMENT, INC.

PLAINTIFF, ANSWER

VS.

CITY OF PADUCAH, ET AL

DEFENDANT.

Come the defendants and for their

answer to the complaint state as

follows:

FIRST DEFENSE

The complaint and amended complaint

fail to state a claim upon which relief

can be granted.

SECOND DEFENSE

As to the complaint, the defendants

admit the allegations contained in

paragraphs 1, 2, 3, 4, 7, and so much of

paragraph 6 which states that "unless

enjoined and restrained therefrom by

this court, the defendants will continue

G-2

to proceed against the plaintiff under

the provisions and procedures of said

ordinance". Defendants deny the

allegations contained in paragraph 5,

the remaining allegations in paragraph 6

including the unconstitutionality of the

ordinance: the defendants deny each and

every other allegation of the complaint

not specifically admitted.

THIRD DEFENSE

As to the amended complaint, the

defendants admit the allegations

contained in paragraphs 1, 2, 6, and so

much of paragraph 3 which states that

the defendants will carry said

resolution into effect and enforce its

provisions against plaintiff:

defendants deny the remaining

allegations in paragraph 3, paragraph 4

in its entirety, and paragraph 6:

defendants deny each and every other

allegation of the amended complaint not

G-3

specifically admitted herein.

FOURTH DEFENSE

There is presently pending in

McCracken Circuit Court, Civil Action

No. 83-CI-590, styled City of Paducah

vs. Investment Entertainment, Inc. and

in which suit the state courts will make

a determination of the law applicable on

the subject matter of this suit pending

in Federal District Court, and the

Federal District Court should abstain

from further proceeding in this action

until a final determination is made on

the merits and the action filed in the

McCracken Circuit Court.

FIFTH CEFENSE

The Ordinance, No. 83-6-2388,

attached as exhibit "A" to the complaint

is constitutional in its entirety and is

applied to this defendant in that no

prior restraint exist under the

ordinance, and a court review of the

G-4

material is required before any licenses

would be revoked by the city of Paducah,

and all hearings by the Board of

Commissioners of the City of Paducah and

court proceedings under said ordinance

only apply to an existing business which

deals in obscenity as defined by said

ordinance, which definition

substantially complies with the

permissible regulations under the first

amendment to the constitution of the

United States.

WHEREFORE, the defendants demand

that the complaint and amended complaint

against them be dismissed, that they

recover their costs herein expended and

all other relief to which they may

appear entitled.

James W. Utter

Corporation Counsel

P.O. Box 2267

Paducah, KY 42001

ATTORNEY FOR

DEFENDANTS

G-5

CERTIFICATE OF SERVICE

I hereby certify that a copy of the

foregoing was mailed, postage prepaid,

on this 15th day of August, 1983, to:

Hon. Joseph S. Freeland, Freeland,

Glanville & Megibow, 910 Citizens Bank

Building, Paducah, KY 42001, attorney

for Investment Entertainment, Inc.

James W. Utter

APPENDIX '"'H"

Motion for Summary Judgment of

Investment Entertainment, Inc. in

Civil Action No. C83-0208P(J) filed

February 2, 1984.

(Reference: Petition for Writ of

Certiorari at page 18, line 18).

...-H-1 thru H-5

Motion for Summary Judgment of City

of Paducah in Civil Action No.

C83-0217P(J) consolidated with No.

83-0208P(J), filed March 9, 1984.

...-H-6 thru H-8

Motion for Summary Judgment of

Beltline News and Arcade Club,

Inc., in Civil Action No.

C83-0237-P(J), filed Feb. 1, 1984.

...-H-9 thru H-14

Motion for Summary Judgment of City

of Paducah in Civil Action No.

C83-0237P(J), filed March 9, 1984.

...-H-15 thru H-16

H-1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action File No. ©83-0208-P(J)

INVESTMENT ENTERTAINMENT, INC.

PLAINTIFF, MOTION

FOR

VS. SUMMARY

JUDG-

CITY OF PADUCAH, ET AL. MENT

DEFENDANTS.

Plaintiff, Investment

Entertainment, Inc., moves the Court for

the entry of a summary judgment for the

relief demanded in its complaint and

amended complaint, upon the ground that

the pleadings (including the exhibits

thereto) and the annexed affidavit

(including the exhibit thereto) show

that there is no genuine issue as to any

H-2

material fact, and that plaintiff is

entitled to such judgment as a matter of

law.

Joseph 5S. Freeland

FREELAND, GLANVILLE

& MEGIBOW

910 Citizens’ Bank

Building

Paducah, KY 42001

Attorney for

Plaintiff

(502) 442-0121

AFFIDAVIT

STATE OF KENTUCKY )

> eet.

COUNTY OF McCRACKEN)

The affiant, Joseph S. Freeland,

being duly sworn, deposes upon oath as

follows:

1. Affiant is 68 years of age, is

and has been continuously for the past

45 years a regularly licensed and

practicing attorney at law at Paducah,

Kentucky, is the attorney for the

plaintiff, Investment Entertainment,

H-3

Ine., in this action, and has been

plaintiff's counsel continuously since

some time in May, 1983.

2. Affiant makes this affidavit on

his own personal knowledge, and is

competent to testify to the matters

stated therein.

3. The pleadings in this action,

together with all exhibits thereto, are

made a part of this affidavit by

reference, to the same extent as if

copied in full therein.

4. Affiant personally attended and

was present at, and during the entirety

of, the hearing conducted by the Board

of Commissioners of the defendant City

of Paducah on August 3, 1983, at the

time of the adoption by said Board of

the resolution annexed as Exhibit "'C"

to plaintiff's amended complaint, and

personally saw and heard all that

transpired at said hearing.

H-4

5. Said hearing was

stenographically reported, at the

instance of the defendants, by Shirley

B. France, a stenographic reporter and

Notary Public, who thereafter transcribed

here stenographic notes taken at said

hearing upon the typewriter. A copy of

said transcript of said hearing is

annexed hereto and made a part hereot as

Exhibit No. 1.

6. Affiant knows of his own

personal knowledge that said transcript

is a full, correct and complete report of

all proceedings had by and before said

Board at said hearing of August 3, 1983.

And further affiant sayeth not.

Joseph S. Freeland

H-5

Subscribed and sworn to before me

by Joseph S. Freeland this 2nd day of

February, 1984. My commission as Notary

Public will expire August 12, 1987.

Notary Public, State

of Kentucky at Large

CERTIFICATE OF SERVICE

I hereby certify that on February

2, 1984, I mailed a copy of the foregoing

motion and affidavit to Hon. James W.

Utter, defendants’ attorney, at his last

known address, P.O. Box 2267, Paducah,

Kentucky 42001.

Attorney for

Plaintiff

i i iii

H-6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

CITY OF PADUCAH

vs. Civil Action

)

)

)

) No. 83-0217

INVESTMENT ENTERTAIN- ) P(J)

MENT, INC. and SHOW- )

TIME ENTERTAINMENT, )

INC. )

)

CONSOLIDATED WITH: ) MOTION FOR

) SUMMARY

INVESTMENT ENTERTAIN- ) JUDGMENT

MENT, INC. )

)

vs. ) Civil Action

) No. 83-0208

CITY OF PADUCAH, ET > Pes)

)

AL.

Comes the City of Paducah and moves

the Court for Judgment pursuant to Rule

56(c) of the Federal Rules of Civil

Procedure, in that the pleadings,

depositions, answers to interrogatories

and adehnniins on file, together with

the affidavits, show that there is no

genuine issue as to any material fact in

that the City of Paducah is entitled to

a judgment as a matter of law.

—— i ™™S"——~<“<S<CSF

H-7

The City of Paducah herein files

its Memorandum in Support of said

Motion.

James W. Utter

P.O. Box 2267

Paducah, KY 42001

Attorney for

City of Paducah

eee

NOTICE

This Motion is being submitted

pursuant to the Order of the Court of

February 14, 1984.

James W. Utter

ieee,

H-8

CERTIFICATE OF SERVICE

I hereby certify that a true copy

of the foregoing was mailed to the Hon.

Joseph Freeland, Citizens Bank Building,

Paducah, KY 42001, attorney for

tanieeiaien Recalls. Inc. and

Showtime Entertainment, Inc., on this

8th day of March, 1984.

James W. Utter

#4...

H-9

IN THE UNITED STATES DIST! CT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

Civil Action File No. C83-0237-P(J)

BELTLINE NEWS & ARCADE )

CLUB, INC. )

)

PLAINTIFF, ) MOTION FOR

) SUMMARY

VS. ) JUDGMENT

)

CITY OF PADUCAH, ET AL )

)

DEFENDANT. )

Plaintiff, Beltline News & Arcade

Club, Inc., moves the Court for the

entry of a summary judgment for the

relief demanded in its complaint and

amended complaint, upon the ground that

the pleadings (including the exhibits

thereto) and the annexed affidavit

(including the exhibits thereto) show

that there is no genuine issue as to any

material fact, and that plaintiff is

entitled to such judgment as a matter of

law.

Joseph S. Freeland

FREELAND, GLANVILLE

& MEGIBOW

910 Citizens' Bank

Building

Paducah, KY 42001

Attorney for

Plaintiff

(502) 442-0121

AFFIDAVIT

STATE OF KENTUCKY )

) .. Bets

COUNTY OF McCRACKEN )

The affiant, Joseph S. Freeland,

being duly sworn, deposes upon oath as

follows:

1. Affiant is 68 years of age, is

and has been continuously for the past

45 years a regularly licensed and

practicing attorney at law at Paducah,

7: ee

H-11

Kentucky, is the attorney for the

plaintiff, Beltline News & Arcade Club,

Inc., and has been plaintiff's counsel

and registered process agent

continuously since plaintiff was

organized as a non-stock, non-profit

corporation under the laws of the State

of Kentucky in April, 1982.

2. Affiant makes this affidavit on

his own personal knowledge, and is

competent to testify to the matters

stated therein.

3. A certified copy of plaintiff's

articles of incorporation is annexed

hereto as Exhibit No.1, and is made a

part hereof.

4. The pleadings is this action,

together with all exhibits thereto, are

made a part of this affidavit by

reference, to the same extent as if

copied in full herein.

emai ta i ici att ia ia ta alana

H-12

5. Affiant personally attended and

was present at, and during the entirety

of, the hearing conducted by the Board

of Commissioners of the defendant City

of Paducah on September 2, 1983, at

the time of the adoption by said Board of

the resolution annexed as Exhibit "'C" to

plaintiff's amended complaint, and

personally saw and heard all that

transpired at said hearing.

6. Said hearing was

stenographically reported, at the

instance of the defendants, by Lisa A.

Kellough (now Lisa A. Dapp), who was and

is the official stenographic reporter for

Division No. 2 of the McCracken Circuit

Court, and who thereafter transcribed her

stenographic notes taken at said hearing

upon the typewriter. A copy of said

transcript of said hearing is annexed

hereto and made a part hereof as Exhibit

ae 2

ee

H-13

7. Affiant knows of his own

personal knowledge that said transcript

is a full, correct and complete report

of all proceedings had by and before

said Board at said hearing of September

2, 1983.

And further affiant sayeth not.

Joseph S. Freeland

Subscribed and sworn to before me

by Joseppf S. Freeland this lst day of

February, 1984. My commission as Notary

Public will expire August 12, 1987.

Notary Public, State

of Kentucky at Large

H-14

Certificate of Service

I hereby certify that on February

1, 1984, I mailed a copy of the

foregoing motion and affidavit to Hon.

James W. Utter, defendants’ attorney, at

his last known address, P.O. Box 2267,

Paducah, Kentucky 42001

Attorney for

Plaintiff

H-15

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

BELTLINE NEWS & ARCADE )

CLUB, INC. ) MOTION FOR

) SUMMARY

PLAINTIFF, ) JUDGMENT

)

Vs. ) Civil Action

) No. 83-0237

CITY OF PADUCAH > Pts)

)

)

DEFENDANTS.

Comes the City of Paducah and moves

the Court for Judgment pursuant to Rule

56(c) of the Federal Rules of Civil

Procedure, in that the pleadings,

depositions, answers to interrogatories

and admissions on file, together with

the affidavits, show that there is no

genuine issue as to any nakeviel fact in

that the City of Paducah is entitled to

a judgment as a matter of law.

Ne a ee ee

H-16

The City of Paducah herein files

its Memorandum in Support of said

Motion.

James W. Utter

P.O. Box 2267

Paducah, KY 42001

Attorney for

City of Paducah

CERTIFICATE OF SERVICE

I hereby certify that a true copy

of the foregoing was mailed to the Hon.

Joseph Freeland, Citizens Bank Building,

Paducah, KY 42001, attorney for Beltline

News & Arcade Club, Inc., on this 8th

day of March, 1984.

James W. Utter

APPENDIX "I"

MEMORANDUM IN SUPPORT OF CITY OF PADUCAH

MOTION FOR SUMMARY JUDGMENT

I-]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT PADUCAH

CITY OF PADUCAH

VS. Civil Action No. 83-0217 P(J)

INVESTMENT ENTERTAINMENT, INC.

and SHOWTIME ENTERTAINMENT, INC.

CONSOLIDATED WITH:

INVESTMENT ENTERTAINMENT, INC.

VS. Civil Action No. 783-0208 P(J)

CITY OF PADUCAH, ET AL

MEMORANDUM IN SUPPORT OF CITY OF PADUCAH

MOTION FOR SUMMARY JUDGMENT

Comes the City of Paducah and herein files its

Memorandum in Support of its Motion for Summary Judg-

ment:

MAY IT PLEASE THE COURT:

KRS 531.020(1) "A person is guilty of distribu-

tion of obscene matter when, having knowledge of its

content and character, he:

(a) Sends or causes to be sent into this state

for sale of distribution; or

(b) Brings or causes to be brought into this

State for sale or distribution; or

(c) In this state, he:

Prepares, or

Publishes, or

Prints, or

Exhibits, or

Distributes, or

OPwn$

I-2

6. Offers to distribute, or

7. Has in his possession with intent to

distribute, exhibit or offer to distribute, any

obscene matter.

(2) Distribution of obscene matter is a Class

B Misdemeanor unless the defendant has in his posse-

ssion more than one unit of material coming within

the provisions of this Chapter, in which case it

shall be a Class A Misdemeanor".

In 1974 the Kentucky Courts held that an injunc-

tion is a permissitle tool to be used against persons

violating the then penal statute regulating obscene

matter. See Hall v. Commissioner ex rel. Schroering

(1974), 505 S.W.2d 166.

Distributing obscene matter within the Common-

wealth of Kentucky, is illegal.

KRS 82.082 states, "(1) A city may exercise any

power and perform any function within its bound-

aries, including the power of eminent domain in

accordance with provision of the Eminent Domain

Act of Kentucky, that is in furtherance of a

public purpose of the city and not in conflict

with a constitutional provision of statute."

"(2) A power or function is in conflict with

a Statute if it is expressly prohibited by sta-

tute or there is a comprehensive scheme of leg-

Slation on the same general subject embodied in

the Kentucky Revised Statutes including, but

not limited to, the provisions of Chapters 90

and 96." (Emphasis ours).

There is not a comprehensive scheme regulating

pornography in the Kentucky Revised Statutes, and the

Kentucky Penal Code sections do not preempt the City

of Paducah from regulating pornography.

_ Oooo

cde Deades

1-3

In furtherance of a public purpose the City

of Paducah adopted Ordinance No. 83-6-2388 (herein-

after referred to as ordinance) declaring the com-

mercial exploitation of obscene motion picture films

and obscene publications to be contrary to the public

health, safety and general welfare, and’a public nui-

sance; declaring any place displaying or exhibiting

such obscene motion picture films or publications to

be a public nuisance per se; making all obscene

matter and publications possessed in such places a

public nuisance per se; and providing for notice and

legal proceedings to abate the same; and providing a

procedure for assessment and collection of costs of

abatement. (See Exhibit "A", Complaint in file

C23-0208-P(J)).

In response to City adopting the above referred

Ordinance and sending a notice to Investment Enter-

1inment, Inc. that it was under investigation for

being in violation of said ordinance (see Exhibit "B"

of Investment Entertainment, Inc. Complaint,) Invest-

ment Entertainment filed a Complaint in this Court

asking for a Declaratory Judgment declaring the Pad-

cah ordinance to be unconstitutional and restraining

1-4

the City from proceeding against Investment Enter-

tainment under said ordinance.

Pursuant to said ordinance the City of Paducah

conducted a hearing, after which a resolution was

adopted by the Board of Commissioners (see Exhibit

"C" to Amended Complaint of Investment Entertainment,

Inc.) and notified Investment Entertainment, Inc. of

the findings of the Board of Commissioners (see Exhi-

bit "D" to Amended Complaint of Investment Entertain-

ment, Inc.).

Investment Entertainment and Showtime admit that

the material viewed by the Board of Commissioners is

obsence. (Memorandum of plaintiff, page 5).

The ordinance adopted by the City of Paducah is

based upon an ordinance upheld in People ex rel. Camil

v. Buena Vista Cinema, 5/7 Cal. App. 3d page 497, 129

Cal. Rptr. 315, (1976). Additionally this ordinance

is the similar to the ordinance which was upheld by

the United States District Court, Western District of

Pennsylvania in Eastern Books v. Bagnoni, 446 F. Supp.

643 (1978) and a similar scheme was upheld in State ex

rel. Kidwell v. U.S. Marketing, Idaho, 631 P. 2d 622

(1981).

‘opted sii ia dahl moariestad ink

MANA SD Toten atin As

Section 19-150 of Ordinance No. 83-6-2388

states that the ordinance “establishes procedures

for abatement" of the public nuisance, “and for the

assessment and collection of costs of abatement which

may be incurred by the City incident to such abate-

ment".

The ordinance provides for judicial review prior

to any revocation of licenses, placement of liens,

or other activity which would interfere with the

business activity of the plaintiff. See Section 19-

155 (d). Sub-section (g) of Section 19-155 requires

notice to be given to the parties involved in the

findings of the Board of Commissioners and the proce-

edings which will be taken to abate the public nuisance.

The judicial proceedings associated with the

City of Paducah's ordinance, prior to any activity

on behalf of the City to actually close the business

or invoke remaining sections of the ordinances, fully

protects the rights of the plaintiff to due process,

including a judicial determination of obscentity of

their materials and does not prohibit the distribu-

tion of protected material under the Constitution of

the United States or the laws of the Commonwealth of

Kentucky.

On page 3 of their Memorandum, the plaintiff

states that the City attempts to impose a lien upon

real property of the affected business for all costs,

the amount of which is to be determined, not by the

court, but by the Board, and provides for the collec-

tion of such assessment as other City taxes are col-

lected. This lien is not assessed until a court

review has taken place along with the review of the

entire proceedings. This provision is not arbitrary

or capricious and is subject to court review prior

to a lien attaching or other collection efforts by

the City.

Plaintiff further takes the position that

Section 6 of the Resolution of the Board of Commi-

ssioners iS unreasonable and violates the Constitu-

tional requirements of due process. Plaintiff is

mistaken that Section 6 of the Resolution is unrea-

sonable. Sections 19-152 and 153 of the ordinance

set the perimeter for what material constitutes a

public nuisance and it will be a duty upon the City,

at a hearing before the court, to demonstrate that

Sub-sections (A) and (B) of Section 19-153 of the

1-7

ordinance exist and that obscene publications con-

stitute all or a prcinciple part of the stock or

trade of said business.

In summary, the ordinance is designed to give

the City a mechanism for determining when the City

will insitute judicial proceedings to abate a public

nuisance. In order for the City to prevail before

the trial court it will be necessary for the City

to show that the conditions set forth in Sections

19-152 and 19-153 exist.

Respectfully submitted,

/s/ James W. Utter

James W. Utter

Attorney at Law

P.0. Box 2267

Paducah, KY 42001

ATTORNEY FOR CITY OF PADUCAH

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy

of the foregoing Motion was mailed, postage prepaid,

on this the 8th day of March, 1984 to: Hon. Joseph

S. Freeland, Suite 910 Citizens Bank Building,

Paducah, KY 42001.

/s/ James W. Utter

James W. Utter

APPENDIX "J"

BRIEF FOR CITY OF PADUCAH, JOE VITERISI

AS MAYOR of the CITY OF PADUCAH,

P.J. GRUMLEY, ROBERT A COLEMAN,

HAROLD (SHORTY) FORD and HAL COLE,

JAMES W. UTTER as CORPORATE COUNSEL ;

and THURMAN BAKER as TREASURER Thereof

J-]

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOS. 85-5092/93

CITY OF PADUCAH PLAINTIFF/APPELLANT

VS.

INVESTMENT ENTERTAINMENT, INC. ET AL DEFENDANTS/

APPELLEES

INVESTMENT ENTERTAINMENT, INC.

(85-5092)

BELTLINE NEWS AND ARCADE CLUB

(85-5093) PLAINTIFFS/APPELLEES

VS.

CITY OF PADUCAH, ET AL DEFENDANTS/APPELLANTS

On appeal from the United States

District Court for the Western

District of Kentucky

at Paducah

BRIEF FOR CITY OF PADUCAH, JOE VITERISI

AS MAYOR of the CITY OF PADUCAH,

P.J. GRUMLEY, ROBERT A. COLEMAN,

HAROLD (SHORTY) FORD and HAL COLE,

JAMES W. UTTER as CORPORATE COUNSEL ;

and THURMAN BAKER as TREASURER Thereof

For the convenience of the Court in citing

references to the record, the following procedure

Shall be used: Investment Entertainment, Inc. v.

City of Paducah, Civil Action No. C83-0208-P(J)

below, referred to as Investment; City of Paducah

J-2

v. Investment Entertainment, Inc., Civil Action

No. C83-0217-P(J) below, shall be cited as City and

Beltline News and Arcade Club v. City of Paducah,

Civil Action No. C83-0237-P(J) below, shall be

cited as Beltline.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Is City of Paducah Ordinance No. 83-6-2388 at

Sections 19-152 and 19-153 unconsitutuional by dec-

laring any and every place in the City of Paducah

where obscene films are publicly exhibited as a reg-

ular course of business, or possessed for the purpose

of such exhibition; or any and every place in the

City of Paducah where obscene film is publicly and

repeatedly exhibited or possessed for such purpose

of exhibition a public nuisance; and declaring every

obscene film which is publicly exhibited or possessed

for such purpose at a place which is a public nuisance

under this Section to be public nuisances per se.

STATEMENT OF THE CASE

On June 14, 1983, the Board of Commissioners

of the City of Paducah adopted Ordinance No. 83-6-

2388 "DECLARING THE COMMERCIAL EXPLOITATION OF OB-

SCENE MOTION PICTURE FILMS AND OBSCENE PUBLICATIONS

J-3

TO BE CONTRARY TO THE PUBLIC HEALTH, SAFETY AND

GENERAL WELFARE, AND A PUBLIC NUISANCE; DECLARING

ANY PLACE DISPLAYING OR EXHIBITING SUCH OBSCENE

MOTION PICTURE FILMS OR PUBLICATIONS TO BE A PUBLIC

NUISANCE PER SE; MAKING ALL OBSCENE MATTER AND PUB-

LICATIONS POSSESSED IN SUCH PLACES A PUBLIC NUISANCE

PER SE; PROVIDING FOR NOTICE AND LEGAL PROCEDURES

TO ABATE THE SAME; AND PROVIDING A PROCEDURE FOR

ASSESSMENT AND COLLECTION OF COSTS OF ABATEMENT."

(Record - Investment Exhibit "A" to Complaint, pages

1-10; and Beltline Exhibit "A" to Complaint, pages

1-10)

In Section 19-150 of Ordinance No. 83-6-2388,

the Board of Commissioners of the City of Paducah

found that the

"commercial exploitation of explicit sexual

conduct through the public exhibition of

obscene films and the sale of obscene pub-

lications, constitutes a debasement and

distortion of a sensitive key relationship

of human existence, central to family life,

community welfare and development of human

personality; that such exploitation is

indecent and offensive to the senses and

to the public morals and interferes with

the interest of the public in the quality

of life and total community environment,

the tome of commerce in the City, property

values, and public safety; and that the

J-4

continuation of such activities is det-

rimental to the best health, safety, con-

venience, good morals, and general welfare

of the City of Paducah and the residents,

citizens, inhabitants, and business thereof,

and is unlawful and may not be made a subject

of a lawful license."

INVESTMENT ENTERTAINMENT, INC.

Pursuant to Section 19.955 of Ordinance No.

83-46-2388, the Board of Commissioners conducted a

public hearing on August 3, 1983. The hearing was

conducted after a letter was sent to Investment

Entertainment, Inc., (hereinafter referred to as

"Investment") informing them of the hearing.

(Record - Investment: Complaint, Exhibit "B"). At

the hearing the Board of Commissioners reviewed

materials purchased from Investment by a police

officer of the City of Paducah. After reviewing the

materials purchased by the police officer the Board

of Commissioners adopted a resolution finding that

the materials were obscene under the ordinances of

the City of Paducah and the statutes of the Conmon-

wealth of Kentucky and that the place of business

was operated by Investment. (Record - Investment:

Amended Complaint, Exhibit "C").

The resolution further found that the business

J-5

is a public nuisance pursuant to Section 19-152

and 19-153 of the Ordinance and ordered the Corp-

oration Counsel pursuant to Section 19-156 of the

ordinance to instigate judical proceedings to abate

the public nuisance.

Section 19-152 reads as follows:

"The following are declared to be public

nuisances per se:

(a) Any and every place in the City of

Paducah where obscene films are publicly

exhibited as a regular course of business,

or possessed for the purpose of such exhi-

bition;

(b) Any and every place in the City of

3 Paducah where an obscene film is publicly

and repeatedly exhibited, or possessed

for the purpose of such exhibition; and

(c) Any and every obscene film which is

| publicly exhibited or possessed for such

4 purpose at a place which is a public

nuisance under this section.

“From and after service on the theater, or

its manager, or acting manager, or person

then in charge of such place, of a certi-

fied copy of this article and a certified

copy of the resolution provided for herein,

all monies paid thereafter as admission

price to such exhibitions shall be regarded

as being a public nuisance per accidens, as

personal property used in conducting and

maintaining a declared public nuisance as

to which forfeiture will be requested in

: the judicial proceedings required herein.:

(Record - Investment: Exhibit "A" to

; Complaint, p. 3-4).

ee ee ae Ye Mer ee

J-6

Section 19-153 reads as follows:

"(a) The following are declared to be

public nuisances per Se:

(1) Any and every place of business in

the City of Paducah in which obscene pub-

lications constitute all of the stock in

trade, or a principal part thereof. Where

such obscene publications consitute only a

part of the stock in trade and are located

in a place or places within such business

which are capable of demarcation, such

place or places consitute the public nui-

Sance which requires abatement; and

(2) Any and every obscene publication

possessed at a place which is a public

nuisance under this section.

"(b) From and after service on the place

or its manager, or action manager, or person

then in charge of such place, of a certi-

fied copy of this article and a certified

copy of the resolution provided for herein,

all valuable consideration received for

the sale of such obscene publications shal]

be regarded as being a public nuisance per

accidens, as personal property used in con-

ducting and maintaining a declared public

nuisance, as to which forfeiture will be

requested in the judical proceedings req-

uired herein." (Record - Investment:

Exhibit "A" to Complaint, p. 4).

On the same day Investment filed a Complaint

in the Unitec States District Court for the Western

District of Kentucky requesting the Court to issue

an injunction prohibiting the City from enforcing

Ordinance No. 83-6-2388, contending that portions

pacsliscaaie Ay

J-7

of said ordinance were unconstitutional. (Record -

Investment: Complaint)

On August 10, 1983, the City of Paducah

filed a complaint in the Circuit Court of McCracken

County, Kentucky, asking the Circuit Court to det-

ermine that the business operated by Investment to

be declared a public nuisance, and that an injunc-

tion, both temporary and permanent, restraining all

persons from maintaining said public nuisance from

possessing or publicly exhibiting obscene motion

picture films, as defeind in the ordinance, or from

selling or possessing for sale obscene publications

at any time in the future in the City of Paducah,

and such other injunctive relief as the Court may

order, and that any obscene publications and obscene

films be forefeited as contraband. (Record - City:

Complaint).

On August 17, 1983, Investment filed a petition

for removal to the United States District Court.

On October 3, 1983, the District Court consolidated

the two actions into Civil Action No. 83-0209P(J).

(Record - Investment and City : Order dated 10-3-83).

J-8

BELTLINE NEWS AND ARCADE CLUB

As to the appellee Beltline, the proceedings

were similar to Investment except that the District

Court found that there was not diversity of citizen-

ship and remanded the City's complaint against Belt-

line to the McCracken Circuit Court, where said

action is still pending.

In both actions, all of the parties filed

motions for summary judgment as to the constitu-

tionality of ordinance No. 83-6-2388. On January

5, 1985, the Hon. Edward H. Johnstone, Judge of

the United States District Court, entered a Memo-

randum Opinion in Investment Entertainment v. City

of Paducah concluding that:

"On the other hand, non-obscene materials

are entitled to great protection, and

therein lies the danger of Ordinance No.

83-6-2388. By going beyond the obscene

materials themselves and focusing on the

place where the obscene materials are sold

or exhibited, the ordinance improperly

intrudes upon protected expression. Be-

cause of the focus on places rather than

materials, the Court finds that Section

19-152(A) and (B) and Section 19-153(A)

are unconstitutional." (Record - Invest-

— Memorandum Opinion of 1-5-85, page

10).

J-9

A memorandum of opinion entered January 7,

1985, in Beltline referred to and adopted the memo-

randum opinion in the Investment case. (Record -

Beltline: Memorandum Opinion of 1-3-85).

On January 7, 1985, the District Court entered

the following Order:

"For the reasons given in the memorandum

opinion accompanying this order,

"IT IS ORDERED that the motion for summary

judgment filed by the plaintiff, Beltline

News & Arcade Club, Inc., is SUSTAINED.

"IT IS FURTHER ORDERED that

"1. Sections 19-152 and 19-153 of Ordinance

No. 83-6-2388 of the City of Paducah are

declared to be in violation of the Consti-

1 tution of the United States of American, and;

i "2. The defendants are permanently enjoined

| from utilizing the provisions of Sections

19-152 and 19-153, Ordinance No. 83-6-2388,

to proceed against the plaintiff.

| "This is a final and appealable order and

1 there is no just reason for delay."

On January 8, 1985, the District Court entered

| the following Order:

"For the reasons given in the memorandum

opinion accompanying this order,

"IT IS ORDERED that the motion for summary

judgment filed on behalf of Investment Enter-

tainment, Inc. and Showtime Entertainment,

Inc. is SUSTAINED.

J-10

"IT IS FURTHER ORDERED that

"1. Sections 19-152 and 19-153 of Ordinance

No. 83-6-2388 of the City of Paducah are

declared to be in violation of the Constitu-

tion of the United States of America, and;

"2. The defendants are permanently enjoined

from utilizing the provisions of Sections 19-

152 and 19-153, Ordinance No. 83-6-2388, to

proceed against Investment Entertainment,

Inc.

"This is a final and appealable order and

there is no just reason for delay."

On January 29, 1985, the City of Paducah filed

notices of appeal in both the Investment case and the

Beltline case, which appeals were consolidated by

Order of the United States Court of Appeals for the

Sixth Circuit.

ARGUMENT

KRS 531.020(1) "A person is guilty of distribu-

tion of obscene matter when, having knowledge of its

content and character, he:

(a) Sends or causes to be sent into this state

for sale of distribution; or

(b) Brings or causes to be brought into this state

for sale or distribution; or

(c) In this state, he:

Prepares, or

Publishes, or

Prints, or

Exhibits, or

Distributes, or

Offers to distribute, or

Has in his possession with intent to distri-

bute, exhibit or offer to distribute, any obscene matter.

NOON PwN

J-1]

(2) Distribution of obscene matter is a Class

B Misdemeanor unless the defendant has in his posse-

ssion more than one unit of material coming within

the provisions of this Chapter, in which case it shall

be a Class A Misdemeanor”.

Pornography is and has been illegal in the State

of Kentucky, and it is not protected by the First

Amendment to the Constitution of the United States of

America. See Bantam Books, Inc. v. Sullivan, 372 U.

S. 58, 83 S.Ct. 631 (1963). The problem of enforcing

criminal statutes, the time involved in trials and

appeals on criminal prosecutions, and the openness

of businesses which deal in this illegal product are

er ty i et all

apparent.

In 1974 the Kentucky Court held that an injunc-

tion is a permissable tool to be used against in reg-

ulating obscene matter. See Hall v. Commonwealth cx

rel. Schroering (1974), 505 S.W.2d 166.

In furtherance of such public purpose the City of

Paducah adopted Ordinance No. 83-6-2388 (hereinafter

: referred to as ordinance) declaring the commercial

_

Fa pe et wee

exploitation of obscene motion picture films and ob-

Scene publications to be contrary to the public health,

safety and general welfare, and a public nuisance; de-

J-12

any place displaying or exhibiting such obscene

motion picture films or publications to be a public

nuisance per se; making all obscene matter and pub-

lications possessed in such places a public nuisance

per se; and providing for notice and legal proceed-

ings to abate the same; and providing a procedure for

assessment and collection of costs of abatement.

The City of Paducah needs a means of controlling

illegal, obscene material within the city limits, and

the ordinance in question goes no further than is nec-

essary to control obscene material. To insure that

only obscene material and distributors of such are

involved, a review is held by the City Commission

which consists of the elected officials of the city,

and a cross-section of city residents. Additionally,

their findings are not implemented in any manner

against the alleged dealer or distributor of obscene

material, but rather, a Circuit Court action if filed

in which the Circuit Judge must find that the person

regularly deals in obscene material and has a sub-

Stantial portion in his stock and trade as obscene

material. Only after judicial review are the sanc-

tions of the ordinance implemented.

J-13

Investment and Beltline admit that the material

viewed by the Board of Commissioners is obscene.

(Record - Investment: Memorandum Opinion, p.5).

Section 19-150 of the Ordinance states that the

ordinance “establishes procedures for abatement" of

the public nuisance, “and for the assessment and col-

lection of costs of abatement which may be incurred

by the City incident to such abatement".

The ordinance provides for judicial review prior

to any revocation of licenses, placement of liens, or

other activity which would interfere with the business

activity of the plaintiff. (Record - Investment:

Exhibit "A" to Complaint, p. 7)

The judicial proceedings associated with the

City of Paducah's ordinance, prior to any activity on

behalf of the City to actually close the business or

invoke the remaining sections of the ordinance, fully

protect the rights of the plaintiff to due process,

including a judicial determination of obscenity of

their materials and does not prohibit the distribution

of protected material under the Constitution of the

United States or the laws of the Commonwealth of Ken-

tucky. (Record - City: Memorandum Opinion, p. 6).

J-14

The procedure used by the City of Paducah has

been upheld by the Supreme Court. The leading case

of State ex rel. Kidwell v. U.S. Marketing, 631] P.2d

622 (Idaho, 1981), Appeal dismissed, U.S. Marketing,

Inc. v. Idaho, (1982), 455 U.S. 1009, 71 L.Ed.2d 878,

102 S.Ct. 1649, the Idaho Court held that

"While much has been written on procedural

requirements in cases involving ‘prior

restraint,’ very little has been written

to define the phrase. To merely label

something unconsitutional as a prior

restraint is question begging at its

best, especially if no analytical effort

is made to determine whether the regulation

is indeed a prior restraint on free speech.

"...By way of example, if a book seller,

having fallen behind on his property

taxes, loses his bookstore at a tax Sale,

he will not be heard to complain that the

State has imposed an unlawful prior res-

traint upon his book-selling activities.

If the same book seller is convicted of

the crime of distributing obscene materials,

he may be imprisoned, and yet he will not

be heard to complain that his incarceration

constitutes a prior restraint upon his

ability to disseminate protected speech,

even though it is quite clear that it has

that effect.

",..Like a tax sale, the forfeiture is

directed strictly at property, apart from

the content of any expression contained

therein. And like imprisonment for criminal

obscenity transgression, the forfeiture is

intended to penalize past distributions of

illegal and unprotected obscenity. The

Pint lh Sankt i tite ites RRS So EE,

as

eee arena omen ents ewer oe Sr ie on ee

aes te Seite wet, Gn Y

J-15

legislator could just as easily have imposed

a fine or other property-related penalty.

Instead, the legislator has chosen to punish

the violator by temporarily depriving him of

property which was used in committing the

violation."

Judge Johnstone is concerned that by focusing

on places of sale and exhibition, rather than merely

upon material sold or exhibited, the ordinance intrudes

upon protected speech. Specifically, it prevents an

entire place from disseminating constituionally pro-

tected, non-obscene materials, simply because the place

has sold or has exhibited obscene materials in the past.

The Court went on to say that "Moreover, because the

ordinance allows the entire business to be declared a

publis nuisance, it encourages a business person to

Steer wide of the danger of avoiding questionable

but nonetheless protected films and publications."

The decisions a businessman would make under

this ordinance are considerably less than he is re-

quired to make under Kentucky's Penal Code. Under

Kentucky's Penai Code a person can be imprisoned or

fined if he has in his possession with the intent to

distribute, exhibit or offer to distribute, one piece

of obscene matter. For two pieces of obscene matter

J-16

it becomes a Class A Misdemeanor subject being

jailed for a period of one year. (See KRS 531.020)

Whereas, the city oridinance requires public

exhibition as a regular course of — Or pub-

licly and repeatedly exhibiting or possessing for

the purpose of exhibition, obscene material, or

where obscene publication contitutes all of the

stock or trade or a principal part thereof. The

requirements of the ordinance are much less restri-

cting than the state statute, which the merchant

must consider in making the decision on the "line

between protected and unprotected speech (which) is

dim and uncertain".

The businessman must avoid the protected but

questionable matters in an effort to comply with the

Kentucky Oscenity Statutes long before he has concern

with the City of Paducah Ordinance. Further, innocent

or negligent exhibitions do not establish a violation

inasmuch as the continuing course of conduct must be

presented before the ordinance comes into play. As

the United States Supreme Court said in Kingsley Books,

Inc. v. Brown, 354 U.S. 436 at 441:

ee ee ee ae Pee

Universal Amusement Co. v. Vance, 587 F.2d 159, 165-

J-17

"We need not linger on the suggestion that

something can be drawn out of the Due Pro-

cess Clause of the Fourteenth Amendment

that restricts New York to the criminal

process in seeking to protect its people

against dissmenati

This text is long and has been trimmed here. Open the source document for the complete record.