310 P.3d 604
N.M.2013Background
- The Guild Cinema (Pangaea) is an art-house theater in Albuquerque (C-2 zone) that ordinarily screens non-pornographic independent films but hosted a one-weekend erotic film festival, “Pornotopia,” in November 2008.
- Albuquerque zoning forbids “adult amusement establishments” in C-2 zones; the ordinance defines such establishments to include theaters that provide films or visual representations characterized by emphasis on specified anatomical areas or sexual activities.
- City inspectors viewed an explicitly adult film at the festival and charged the Guild with operating an adult amusement establishment in an improper zone; the Guild was convicted in metropolitan court, affirmed by the district court and Court of Appeals, and the conviction reached the New Mexico Supreme Court.
- The Guild conceded the screened film qualified as adult material under the ordinance but argued the theater was not an “adult amusement establishment” because it only occasionally (about once yearly) showed adult films and otherwise functioned as a mainstream art-house theater.
- The New Mexico Supreme Court interpreted the ordinance to apply only to businesses that are, in ordinary meaning and in practice, adult establishments (i.e., regular, persistent adult-oriented businesses), concluded the Guild was not such an establishment, reversed the Court of Appeals, and vacated the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Guild is an “adult amusement establishment” under Albuquerque ordinance | City: showing an adult film at the Guild made it an adult amusement establishment subject to zoning prohibition | Guild: occasional, rare adult screenings do not convert a mainstream theater into an adult establishment | Guild is not an adult amusement establishment; one-weekend/occasional showings do not trigger the ordinance |
| Whether the ordinance should be construed to avoid constitutional problems | City: ordinance as applied is valid to prevent secondary effects from adult entertainment | Guild: applying ordinance to occasional showings raises First Amendment concerns and is not narrowly tailored | Court adopts narrow construction to avoid serious constitutional doubts and thus does not reach First Amendment holding |
| Burden of proof / evidence of secondary effects required to expand ordinance scope | City: ordinance need not be supported by city-specific studies; similarity to Renton-type ordinances suffices | Guild: city must show link between occasional showings and harmful secondary effects before treating mainstream venues as adult businesses | Court: if City wants to capture occasional showings it must provide evidence linking those showings to secondary effects or amend ordinance with clear thresholds |
| Proper remedy for misapplication of zoning ordinance | City: conviction affirmed | Guild: conviction should be reversed and vacated | Conviction reversed and vacated; ordinance does not apply to Guild as interpreted |
Key Cases Cited
- Young v. Am. Mini Theatres, 427 U.S. 50 (plurality) (upholding zoning targeting adult businesses based on secondary effects)
- City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) (time, place, manner analysis for adult-business zoning and focus on secondary effects)
- Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) (standards for content-neutral time, place, manner restrictions)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (deference to municipal evidence and low evidentiary burden for secondary-effects zoning)
- Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir.) (ordinance invalid where county construed it to apply to a single showing without evidence of secondary effects)
- Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783 (6th Cir.) (ordinance not narrowly tailored where it swept in mainstream businesses with incidental adult material)
- People v. Superior Court (Lucero), 774 P.2d 769 (Cal. 1989) (single showing insufficient to classify a theater as an adult establishment)
- R. V. S., L. L. C. v. City of Rockford, 361 F.3d 402 (7th Cir.) (insufficient evidence to meet low evidentiary burden for zoning restriction)
- Schmitty’s City Nightmare, LLC v. City of Fond du Lac, 391 F. Supp. 2d 745 (E.D. Wis.) (zoning applies to regular use, not occasional deviations)
- Pensack v. City & County of Denver, 630 F. Supp. 177 (D. Colo.) (due process concerns where ordinance swept ordinary businesses selling incidental erotic goods)