City of Knoxville v. Entertainment Resources, LLC

tunity to strongly caution against officers any

making potentially prejudicial OF remarks CITY KNOXVILLE jurors. so, doing we do not intend to v. discourage cordial relations between court “ jurors. officers and Jury service is ‘the RESOURCES, ENTERTAINMENT highest obligation of citizenship [and] LLC. should be an interesting and rewarding Supreme Tennessee, Court experience to be looked back on with inter at Knoxville. pleasant est and recollection who those ” privileged are to be selected.’ Carruth 4:, Jan. 2005 Session. ers, 145 S.W.3d at 93 (quoting State Pennell, (Del.Su 583 A.2d June end, per.1990)). To that the court officer’s time, role is vital. But at the same these carefully

officers must guard against mak

ing any prejudicial statements of law jurors.

comments to Court officers as act court,

representatives they

must recognize the official character

their position will cause their comments

carry great weight in the eyes jury.

Thus, again we stress importance

closely guarding all comments made jurors.

presence of

Conclusion summarize,

To we hold that Tennessee 606(b)

Rule of Evidence permit does not

juror testimony any the effect of improper

extraneous information or influ- juror’s

ence on the deliberations. There-

fore, post-conviction court erred in ad-

mitting juror testimony regard in this

during petitioner’s post-conviction

hearing. The court improper officer’s jury

statement presump- created a

tion of prejudice which the State failed to Accordingly, judgment

overcome. reversed, Appeals Court of Criminal

and the case remanded for a new trial.

Costs appeal of this are taxed to the

State Tennessee. Kizer, Morris R. Bolton and W.

Angela Knoxville, Tennessee, Appellant, for the City of Knoxville. Bridgers, David Elbert and W.

Philip N. Nashville, Tennessee, L. and Richard Knoxville, Tennessee, Ap- Gaines, Resources, LLC. pellee, OPINION distinguished media which are or char- acterized emphasis. their on matter ANDERSON, E. J., RILEY delivered depicting, describing relating spec- opinion court, in which ified specified sexual activities ana- BIRCH, JR., ADOLPHO A. JANICE M. areas, tomical or an establishment with HOLDER, BARKER, and WILLIAM M. segment or a section JJ., joined. devoted DROWOTA, III, FRANK F. or display sale of J., such material. concurring C. filed a opinion. 16-468(a) § granted City Knoxville appeal (emphasis We Code determine the added). constitutionality parties of a city dispute Knoxville ordi- the whether nance regulating the or phrase significant portion location of adult “substantial busi- chancery nesses. The of upheld court the its stock impermissibly and trade” is enjoined ordinance and operation vague under the United States and Ten- finding defendant’s video store after that it nessee Constitutions. fit the definition anof adult bookstore and Background 1,000 prohibited

was located within feet of operating areas and therefore in was viola- complaint of Knoxville filed a of tion the Ap- ordinance. The of Court County in Knox Chancery seeking Court peals grounds reversed on the that enjoin defendant, ordinance’s definition adult of bookstores Resources, operating from its in store al- vague. Because we leged of violation the ordinance. The fol- have also determined that the ordinance is lowing facts were developed before the unconstitutionally vague under the United chancery stipulated court by par- Constitutions, States and Tennessee we ties. affirm of the decision of Appeals the Court August On Entertainment Re- but on separate grounds set forth opened a Fantasy sources store called Vid- herein. We remand to the trial court Knoxville, Papermill in eo Road an assessment of the damages amount of Tennessee. Entertainment Resources also incurred the defendant as a of result operated two stores Nashville one injunction. the chancery court’s Columbia, planned Tennessee. It the Knoxville Council open two Knoxville stores addition to adopted regulating, an ordinance among Fantasy Video. things, other the location “adult busi- Video, Fantasy like Entertainment Re- nesses.” At all ap- times relevant to this stores, sources’ other rented and sold vid- peal, Knoxville Code section 16-468 eotapes viewing. for off-site When Fanta- (“the ordinance”) provided that adult busi- sy inventory opened, Video consisted of 1,000 nesses could not be located within sexually 80% adult or explicit, “X-rated” district; feet of: a residentially-zoned an family videos and general 20% videos. activity; area devoted to recreational anor General videos were displayed selling beverages. establishment alcoholic store’s “front room.” Adult videos were The ordinance included adult bookstores room,” displayed in the store’s “back which its definition of adult An businesses. adult years patrons age was restricted bookstore was defined as: and older. an having establishment as a substantial significant portion its stock and spacing provisions Under books, magazines trade and other an peri- Knoxville “adult business” odicals, or other videotapes legally electronic could not locate at the site than, as red means substantial stipulated It “substantial store. was Video it, red; I I see but know red when means that the site was located next door restaurant, further testified sold red.” He Mexicali Rose which can’t describe New 1,000 Boy quantity to means a of a me liquor; “significant beer and within feet that, something building, compared something administrative within Scouts flies) (as 1,000 Major of a residen- testified feet crow Officer [sic].” else district, really tially I don’t although zoned residen- substantial. “substantial separated from store of sub- tial district was definition opinion have Re- stantial, 40. Entertainment He fur- self-explanatory.” Interstate it is Boy sources did believe that Scouts just like sub- “significant explained, ther building building qualified as a devoted stantial, mean, significant, significant is I activity not believe it recreational and did Officer just substantial.” as substantial is 1,000 dis- feet of a residential was within similarly that “substantial Shelton testified Although Entertainment Resources trict. the color blue just like means substantial knowledge had full that the New Mexicali provide any color blue. can’t means the liquor, it restaurant sold beer and Rose “signifi- that He also testified other [sic].” Fantasy Papermill on chose to locate Video stipulated It was significant.” cant means lawyer had advised the Road because its further, testify the officers that if called to that the Knoxville ordinance was company making the evaluation testify that in would unconstitutional. they “significant” “substantial” to be appeared to them would look what

Shortly Fantasy opened after Video of the business.” part “important 1998, August Depart- Police the Knoxville began inspecting ment the store and issu- Re- By Entertainment November ing citations for violation of the ordinance composition of had altered the sources daily on an almost basis. The citations in- inventory. police A Fantasy Video’s alleged Fantasy that Video was adult 17, 1998, revealed ventory November on meaning ordi- bookstore within the of the stock was 57% of the approximately that significant nance because a substantial approximately general feature videos portion of its stock and trade constituted adult-oriented videos. of the stock was 43% within videotapes containing material again; adjusted balance was later ambit of the ordinance. on December tally from count adult general feature and 30% was 70% citations, response

In Entertain- alterations, Despite these feature. attempted gain clarifi- ment Resources up to issue citations City police continued City’s police from and from cation injunc- preliminary that the until the date “sub- law as to what constituted a director As of November tion was entered. significant” portion of stock and stantial cited had been Entertainment Resources ordinance, guidance no trade under the but fifty-three separate guilty found provided. was As of Novem- of the ordinance. violations hearing on the citations At a some of Fantasy Vid- at least 75% ber City Court, of the officers three Knoxville by the “back generated were eo’s revenues inspections Fantasy Vid- in the involved room” videos. they guid- had received no eo testified that that at least one indicates ordi- The record training interpreting the ance or rents and sells business Knoxville terms in other asked to define the nance. When purview of the within the that fall Sergeant Ferguson testified videos that Gem- stipulated It was other ordinance. not define “substantial” that he could separate stone Video Stores have back movement on the merits of the case. Fan- rooms videotapes devoted adult-oriented tasy general Video’s video business eventu- and magazines. stipulated It was that the ally point dwindled to that it only was position takes the that Gemstone Vid- open per January two hours week. In eo Stores are not “adult bookstores” within Entertainment Resources lost meaning of the ordinance and that the Papermill lease on the Road location and back room stock is not a substantial or moved to dismiss the suit as moot. significant portion of Gemstone Video’s chancery granted court motion trade, stock and but the record does not 9, 2001, July except respect with to Enter- the percentage show breakdown between damages. tainment claim Resources’ for general adult videos and videos. argued it damages was entitled to not only as to the spite citations, of the repeated Enter- Fantasy store, only oper- Video which had tainment Resources continued to operate ated for four Papermill months on Road Therefore, Video. on November prior entry injunction, but also of Knoxville filed a com- to the two planned additional stores had plaint injunctive seeking enjoin relief open in Knoxville. Entertainment from operating Resources n in violation of the ordinance. an- its 15, 2002, later, April Nine on months swer, Entertainment Resources averred chancery court entered an upholding order defenses, numerous including the claim injunction damages. denying and The that the ordinance is impermissibly vague court held that because Entertainment Re- under the United States and Tennessee sources was in “direct violation” of the Constitutions. ordinance, it challenge was not entitled to 10, 1998, it vague. On December The court also held that the chancery time, granted City’s place court ordinance was constitutional motion for a tem- porary injunction manner combating and restriction aimed at restraining Entertain- secondary ment Resources effects of adult operating from an adult businesses. bookstore at the Papermill Road location. appealed. Entertainment Resources chancery The court reasoned that a tempo- Appeals The Court of reversed the chan- rary injunction appropriate was because court, cery reasoning that because neither opened had nor enforcing officers could on Papermill Video store Road define “signifi- the terms “substantial” or knowledge ordinance, with full of the and cant,” imprecision and because the of the “ not disputed was that the adult videos prevented terms of common ‘men intelli- ” for offered sale and rental at Fantasy Vid- gence’ understanding from purview eo were within the of the ordi- “unconstitutionally the ordinance was chancery nance. The court further noted and, therefore, vague unenforceable.” that over 75% of the store’s revenue and at Appeals Court of the trial remanded to least of its 85% customers were attribut- damages court for determination of and to the able adult videos. The court opined attorney’s court re- appellate fees. The general was, that the inventory video “de- jected City’s that Entertain- argument spite its ... in- insignificant number damages ment Resources’ as to the Fanta- substantial to this business’s stock sy speculative Video store were too trade.” declined, however, recovery. The court years entry

For two after damages instruct the trial court to award temporary injunction there was little for the un- planned, second and third but Lawson, 1993) Kolender v. damages (quoting stores, finding that those opened, 352, 358, L.Ed.2d U.S. recovery. speculative permit too were (1983)). A statute affirm the now granted review and We therefore, not serve suffi if it does vague, separate Appeals grounds on the Court forcing prohibited, notice of what cient “ set forth below. neces intelligence [to] ‘men of common ” meaning.’ Davis Analysis sarily at guess Kidd, Broad (quoting 866 S.W.2d Review Standard of Oklahoma, rick v. ordi Interpretation (1973)); statutes see L.Ed.2d 830 we re of law which question Ass’n, Inc., nances is Am. Booksellers also Leech v. Pope ex rel. (Tenn.1979). de novo. See State view 582 S.W.2d Co., 145 Fire S.W.3d Ins. requirement of In addition to the (Tenn.2004). requires notice, doctrine vagueness guidelines provide “minimal that statutes Doctrine Vagueness Davis-Kidd, govern law enforcement.” The Fourteenth Amendment Because “[a] at 532. 866 S.W.2d prohibits states United States Constitution policy delegates basic impermissibly law life, any person of liber “depriv[ing] from juries judges, and policemen, matters to process of ty, property, without due subjective ad hoc for resolution I, law.” Article section 8 of the Tennessee dangers arbi basis, with the attendant protec an identical provides Constitution discriminatory application,” trary observed, tion; often “the ‘law as we have 108-09, 92 at S.Ct. Grayned, 408 U.S. is proviso of land’ of our constitution the legislature 2294, requirement that a “the synonymous process the of law* with ‘due to guidelines govern law minimal establish of the constitution.” provisions federal aspect important the more enforcement” is Mitchell, Anglin State ex rel. v. 596 Smith v. Go vagueness doctrine. of the (Tenn.1980) 779, (citing 786 S.W.2d 566, 574, 1242, 39 94 S.Ct. guen 415 U.S. State, v. 393 Daugherty Tenn. (1974). L.Ed.2d 605 (1965)). S.W.2d 739 implicating the First Vague laws States Constitu the United process requires, Due of law Amendment I, Ten section of the the law tion and Article among things, other notice of what subject to a more are person of nessee Constitution “give must the prohibits. Laws con laws in other than opportu stringent a standard ordinary intelligence reasonable chilling danger of of the that he texts because prohibited, to know is so nity what Davis-Kidd, speech. Grayned protected accordingly.” act may of literal “Where a statute’s at 531. 92 S.Ct. S.W.2d Rockford, 408 U.S. court (1972). by narrowing a state scope, unaided statutes L.Ed.2d Criminal reaching ex of capable is interpretation, criminal offense suf “must ‘define the with First Amend by the ordinary pression sheltered people that ficient definiteness ment, greater a de demands doctrine prohibit what conduct is can understand ” Booksellers, in other contexts.” than gree specificity Inc. v. of ed....’ Davis-Kidd (Tenn. Smith, 1242.1 McWherter, 866 S.W.2d Court, however, is not concurring suggests is issue before this opinion that this 1. The protected reaches both involving analysis. the ordinance whether case an overbreadth mind, substantial; With principles these we turn effect indeed was Entertain- question whether the ordinance ment was forced to Resources close unconstitutionally vague. abandon its plans doors and to open Moreover, third second store. we and as

Validity the Ordinance below, suscep- explain ordinance is City argues terms “sub- narrowing tible to a construction. For “significant” are familiar stantial” follow, reasons that we conclude that capable ready understanding terms vague Knoxville and invalid ordinance ordinary More- persons intelligence. its face. over, argues City, we must construe First, inability the officers in the “significant” “substantial” and con- enforcing the charged with ordinance text statute as a Entertain- whole. key weighs heavily against define-its terms argues that “substantial” ment constitutionality. Knox- ordinance’s “significant” are Ferguson, Major, Officers ville Police no vague because the terms have fixed they testified that Shelton all were unable meaning. to define The officers “substantial.” testi- law, In evaluating a such as the fied that had not instructed them Knoxville that “affects commu portion as to what constituted substantial protected by nication the First Amend they, material but sexually-explicit ment,” may we challenge consider a to its knew what personally, “substantial” validity regardless or not facial of whether meant. As Entertainment Resources law is applied defen however, out, “I I see points know when if “the statute’s effect on dant deterrent constitutionally-sound it” is not a standard. real legitimate expression is ... both being Particularly speech regulat- when if [not] substantial and the statute is readi ed, govern- demands that Constitution subject ly narrowing construction greater ment make a attempt bodies state Young courts.” v. American prohibited conduct is to avoid define what Theatres,

Mini chilling speech. protected (1976) (internal quo 49 L.Ed.2d 810 written, omitted);2 the As determination what tations see v. Mazu- also U.S. rie, significant or 419 constitutes “substantial U.S. 95 42 S.Ct. (1975); Button, portion” 706 v. of business’s “stock and trade” L.Ed.2d NAACP subjec- 432-33, entirely 9 83 under the ordinance is S.Ct. (1963). Here, gives objective L.Ed.2d 405 the deterrent tive ordinance one. The no conduct, unprotected "readily subject were and but whether the effect and to narrow- prohibitions. is unclear Al by Young, ordinance in its ing state construction the courts.” though "vagueness log 60-61, and [are] overbreadth con- 427 U.S. at 96 S.Ct. 2440. The doctrines,” ically related and Kolen similar curring opinion also notes that the ordinance der, they 461 U.S. at 358 n. Young upheld by the Court the in contained Davis-Kidd, See, concepts. e.g., distinct are significant” same definition "substantial 523-29, S.W.2d at 866 531-32. the regard to adult with bookstores as does Knoxville ordinance we consider here. How- concurring opinion 2. that the Court for law enforce- ascertainable standards intended reach material the terms were ment. by City’s failure both is demonstrated Entertainment Re- guidance to to offer

Second, the terms as used the context offi- by the confusion of the sources cannot defined with of the ordinance view, enforcing the ordinance. charged with precision. In our cers any degree of ed.1990)). (6th how It is difficult see opinion concurring asserts that "sub- 3. The definition, noting importance” capable substituting "of worth and is real stantial" clarify "substantial” in In re Val- portion this Court defined what would for "substantial” 539, (Tenn.2002). entine, 79 S.W.3d 548-49 a and trade business stock of adult-oriented offered in that definition of substantial being subject to the ordi- carry without could ” " importance.1 'of case was real worth nance. Dictionary (quoting Black's Law at 548 Id. Third, City give any declined to F.Supp. (M.D.Tenn.1989), had limiting construction to the and used the terms “substantial” “signifi- we are unable to impose narrowing defi- cant.” we agree “majority” While salvage constitutionality. nition to “substantial,” As clearer than such a drastic opinion notes, the concurring this Court revision this Court would amount to has cautioned that should impermissible judicial “[c]ourts consid- legislation. “[Cjourts any er limiting instructions may chal- supply words when reason- lenged statute Nevertheless, that state ably authorities have called for. it proffered.” Burkhart, State v. prerogative 58 S.W.3d legislature, of the and not the (Tenn.2001). case, courts, In this howev- to amend In statutes.” re Swan- er, (ci- son, (Tenn.1999) no such proffered, instruction has been 2 S.W.3d 186-87 omitted). either to Entertainment or to case, tations In the it Nashville Resources, this Court. Council, re- City was the Nashville legisla- quested that City tell how to reap- body, tive that supplied narrowing con- portion its stock in struction, order to comply with not the courts. ordinance. The refused. Enter- City’s It is difficult to understand the tainment Resources then altered the com- clarify reluctance to further the ordinance. position Fantasy stock Video from “Although process require due does not 57%, 80% adult-oriented material and impossible clarity, standards of not alteration, finally to 30%. After each precision ease where further the statu- City continued to maintain that tory language is either impossible im-

Video was in violation of the ordinance. In Kolender, practical.” 461 U.S. at view, our requiring party engage (internal quotation S.Ct. and citation this sort of guessing game is a clear viola- omitted). Surely had must have process. tion of any due The “absence sexually- some idea of what amount ascertainable standard for inclusion explicit material was tolerable under precisely exclusion is what offends the Due ordinance, particularly given the fact that Smith, Process Clause.” the record shows that the takes the 94 S.Ct. 1242. Stores, position that Gemstone Video sexually-explieit which also stock video- concurring opinion states that tapes, was not in violation the ordinance. we failed to “consider whether ordi See, e.g., Flip- Vill. Estates v. of Hoffman readily nance is susceptible narrowing to a side, Estates, Inc., Hoffman construction any per which would alleviate 503-04, L.Ed.2d 362 ceived vagueness.” unconstitutional But (1982) (ordinance regulating drug sale of in the absence of any City, hint from the paraphernalia vague, in part because we at a impart are loss as to how to village attorney guidelines issued to busi- meaning to terms “substantial” and ordinance). nesses affected “significant” without rewriting the ordi concurring opinion points nance. The any out the absence of articulable stan- that a similar Nashville ordinance defines from City, dards we must conclude an adult video store as an “establishment that the ordinance is “not the vague having a majority of its stock or a majority requires person sense that it a to conform space of floor to” dedicated adult mate his conduct to an imprecise compre- but rial, previous A standard, version of that hensible normative but rather as invalidated unconstitutionally vague the sense that no is standard of conduct Theater, Boner, Ellwest Stereo Inc. 718 specified City at all.” Coates v. Cincin- of Damages nati, (1971). L.Ed.2d that chancery court held the Because Finally, City argues the that Entertain- prop- had been Resources Entertainment may challenge the ment not Fantasy Vid- erly enjoined operating from vague because the facially ordinance as ordinance, it did to the pursuant eo clearly within the Fantasy store was Video dam- Resources’ Entertainment address Burkhart, of the ordinance: purview Appeals the agree with Court ages. We explained, As have at 699. we S.W.3d Resources is entitled Entertainment that however, circumstances even some damages as to the determination is the ambit of an ordi- party who within Road, Papermill Store Video facially vague if may challenge nance damages as to is not entitled but that it is at issue. protected communication and unopened, second but planned, the 59-60, Young, remand to the stores. We third Knoxville Moreover, facts of this case belie amount of to assess the chancery court Re- that Entertainment City’s insistence damages and Resources’ Entertainment purview of the ordi- sources fell within awarding attor- propriety determine nance, because, explained, as we have ney’s fees. Entertain- no ordinance has boundaries. from reduced its stock

ment Resources Conclusion without, to 30% evident- 80% adult videos appli- the record and Having considered edge of what consti- ly, locating upper Knoxville authority, hold that we cable portion an of stock devot- acceptable tuted 16-468 Code section material. Given ed to adult-oriented States under the United unenforceable any inability to articulate constitu- City’s We remand Constitutions. Tennessee for the ordi- tionally-meaningful standards chancery court for determination bookstores, we of adult nance’s definition damages flow- Resources’ Entertainment is unconstitu- conclude that ordinance injunction. Costs of ing from that court’s tionally vague unenforceable. appellant, are taxed appeal exe- Knoxville, surety, for which and its Remaining Issues necessary. if issue may cution that definition of Having determined in Knoxville Code bookstores” “adult DROWOTA, III, C.J., filed F. FRANK we vagueness, is void for section 16-468 concurring opinion. arguments as parties’ not reach the need entered validity injunction C.J., DROWOTA, III, FRANK F. to reach trial court. We also decline concurring results. that arguments Resources’ by the result reached time, with the place concur is not a valid such ordinance join However, I am unable majority. it failed to regulation, that and manner analysis and conclusion majority’s avenues provide reasonable alternative (“the Ordi- 16-468 section communication, Knoxville Code an ordinance such nance”) on its unconstitutionally vague justified using the “second- may never be view, and should my need not we sec- face. under Article ary effects” doctrine un- Constitution, the Ordinance not consider whether Tennessee tion 19 of the vague on its face because constitutionally injunction unconstitutional was an that the on the basis may resolved appeal prior restraint. it unconstitutionally ap- that was vague guidance as provided the that Entertainment plied to Fantasy Video. sought.1 Resources In addition to seeking a declaratory judgment finding the Ordi- Vague Applied As

I. unconstitutional, nance Entertainment Re- sought sources in its Fantasy de- opened When Video on August counterclaim claratory judgment inventory construing its “adult consisted of 80% bookstore” in a sexually manner that would adult or make it explicit, x-rated videos to possible know what family changes and 20% additional general videos. After Fantasy would be for police necessary for officers Video to City Knoxville avoid (“City”) the adult began bookstore classification inspecting the store operate to at issuing basis, lawfully Papermill daily citations an Road almost injunction location. The did not provide Entertainment Resources changed the in- guidance additional ventory merely but instead en- layout Fantasy an Video in joined Entertainment Resources attempt “during to avoid continued classification as pendency this action from operating adult bookstore under the Ordinance. A an adult at 6422 17, 1998, Papermill police inventory November re- .bookstore Road, Knoxville, Thus, upon Tennessee.” Fantasy vealed that Video’s stock consist- reviewing procedural the facts and general history ed of 57% feature videos and 43% case, fully of this I am sexually convinced that explicit adult-oriented videos. Ordinance is tally vague from a December count Video; has applied Fantasy been Fantasy revealed that there- Video’s stock con- fore, I concur with sisted of 70% the result general feature reached videos and majority. sexually 30% explicit adult-oriented videos.

Thus, Entertainment Resources attempted Vagueness Challenge II. Facial to alter the balance of inventory avoid reach of the Ordinance. Having appeal may concluded that this also- sought be resolved on the basis how the Ordi- guidance from City -various officials of agree nance has applied, been cannot specific Knoxville as to what majority additional holding with-the decision Or- changes Fantasy necessary would be for dinance on its and thus uncon- face Video to avoid the adult bookstore classifi- stitutional in all its applications. This “ lawfully cation so that it operate could recognized Court has facial chal- ‘[a] Papermill being lenge Road location without to a is ... legislative Act the most subject to the Ordinance’s restrictions. challenge successfully difficult to mount Neither the police who conducted challenger since the must establish that no inspec- tions and issued citations to Video set of circumstances exist under which the ” City’s nor the Department City Law or the Act would be valid.’ Davis-Kidd Book- assigned sellers, McWherter, Court judge to hear the citations Inc. v. 866 S.W.2d Why provide guidelines requests failed specific Entertainment Resources businesses affected guidance Ordinance is un- inexplicable. majority also is As the clear, particularly out, when United States Su- points must have had some no- preme guidelines Court has considered such sexually-explicit tion of what amount of mate- rejecting vagueness challenge relevant rial was tolerable under the Ordinance be- See, Village e.g., an ordinance. of Hoffman position cause the had taken Estates, Inc,, Flipside, Estates v. Hoffman Gemstone Video Stores violation of was 503-04, 71 L.Ed.2d the Ordinance. (1982). City's respond refusal to

661 therefore, clear, any that element (Tenn.1993) v. It (quoting United States 525 has not ordinances 2095, vagueness in these 739, 745, Salerno, 107 S.Ct. 481 U.S. To ex- respondents. these affected (1987)). a down Striking 95 L.Ed.2d 697 on challenge predicated that their tent “‘strong its face therefore statute on ” resulting in denial notice inadequate employed should be medicine’ which “ the Four- procedural process due under hesitation, only a last and then as ‘with ” Amendment, rejected. must be teenth New York v. Fer- (quoting Id. resort.’ Only 2440. at 96 S.Ct. 747, 769, Young, 427 U.S. ber, 102 73 458 S.Ct. U.S. rejecting as-ap- considering and (1982)). Administering such L.Ed.2d after the Court challenge did plied vagueness in necessary “strong medicine” is not reject vague- the facial and also consider because, previously explained, as appeal challenge. explained: The Court ness illustrates that the Ordinance the record Detroit persuaded that the are not We unconstitutionally to Fan- applied been has significant will zoning ordinances have tasy Video. on the exhibition effect deterrent “In Nonetheless, majority states: by the First Amend- films protected law, as the Knoxville evaluating such noted, already only ment. As reaching capable pro- that is in relates vagueness the ordinances only whether expression, inquire we tected activity sexually explicit amount of its face. need not vague law is on We the mate- may portrayed that be before vague applied it is as consider whether be to be “characterized rial can said Button, defendant. v. NAACP matter. For most emphasis” an such 415, 432-33, 328, L.Ed.2d U.S. readily an- question will be films Mazurie, (1963); also U.S. v. see swerable; an area of to the extent 42 L.Ed.2d 706 S.Ct. why exists, see no reason doubt we (1975).” First, sup- in the decisions cited subject to “readily are not ordinances majority’s predate port of the statement by the state narrowing construction Supreme Court decisions United States surely a less there is courts.” Since op- appear require precisely which exhibi- in the uninhibited vital interest posite analysis. example, Young For on the borderline of material that is tion Theatres, Inc., Mini artistic ex- pornography American between 59-61, free 49 L.Ed.2d than in the dissemination pression S.Ct. signifi- (1976), analysis by political of social and began the Court of ideas amount cance, De- the limited considering challenged whether and since easily uncertainty in ordinances is as vague applied troit ordinance2 was construction, narrowing defendants, susceptible of a stating: segment or section establishment with a Notably, Re- 2. the Ordinance Entertainment display unconstitutionally or of such materi- challenges devoted to the sale as sources Young, at n. 96 S.Ct. 2440 language 427 U.S. 53 appeal identical al.” in this uses added). (emphasis majority, the Unlike the at issue to that in the Detroit ordinance Young re- Supreme Court United States Young, defined "adult bookstore” which language having or find this as a fused to establishment substantial “[a]n trade, books, only vagueness the ordi- vague, stating “the significant portion its stock sexually ex- to the amount of magazines, periodicals are nances relates and other which may portrayed plicit activity before em- distinguished or characterized their to be 'characterized describing can be said depicting, or re- the material phasis on matter emphasis’ matter.” Id. 'Spec- by an on such lating ‘Specified Sexual Activities’ below), (as Anatomical Areas’ defined ified 662 Moreover,

we think is an inappropriate this case the majority’s willingness to adjudicate which to hypothetical facially the hold the Ordinance unconstitution- justified al persons claims cannot be as a proper applica- not before the Court. tion of the overbreadth doctrine.3 The 60-61, Young, 427 U.S. at 96 S.Ct. 2440. overbreadth exception doctrine to Thus, in Young the Court did not consider which, normal standing principles despite vagueness the facial challenge until it had general the rule disfavoring facial constitu- rejected first as-ap- considered and the tional challenges, permits litigant a “to plied vagueness challenge. challenge the constitutionality [facial] a statute which is not Furthermore, unconstitutional do not believe the cited applied may but which be unconstitutional authority supports .proposition the for in some cases in to protect right order the which it has been cited. The Court of free speech.” 16 Am.Jur.2d Constitu- Button stated: (1998) § added); tional Law (emphasis We have no doubt that the opinion of the Booksellers, Inc., see also Davis-Kidd [Virginia Supreme Court] the instant However, 525. S.W.2d at the overbreadth case was intended as full and authori- dispense doctrine does not with the gener- Chapter tative construction of ap- 33 as principle al that courts consider facial chal- plied in a detailed context. factual lenges constitutionality to the of statutes That us, construction binds us. For only Indeed, as a last resort. “the [over- words of Virginia’s highest court are the applied breadth] doctrine should be spar- statute, words of the [citation omitted] ingly only and used aas last resort. And speculate We are not left large to at it apply, for to there must be a realistic upon possible implications of bare danger that significantly statute will statutory language. compromise the recognized First Amend- rights persons ment not before the 432, 371 U.S. at 83 S.Ct. 328 (emphasis court.” 16 Am.Jur.2d Constitutional Law added); Mazurie, see also 419 U.S. at (1998); § 140 see also Davis-Kidd Book- 710. S.Ct. Neither Button nor Mazurie sellers, Inc., 866 S.W.2d at 525. this involved facial challenges constitutional appeal, “last resort” overbreadth doc- zoning ordinances of type at issue trine need not applied because the case appeal. Indeed, constitutional chal may be by finding resolved that the Ordi- lenges such ordinances are evaluated nance unconstitutionally applied has been pursuant distinct First Amendment to Entertainment Resources. See, analysis. e.g., City Angeles Los Books, Inc., Alameda U.S. assuming necessary Even were 1728, 152 (2002); S.Ct. L.Ed.2d 670 evaluate Entertainment Resources’ facial Theatres, Inc., Playtime Renton v. 475 vagueness challenge to the constitutionali- U.S. 29 ty Ordinance, L.Ed.2d I would be unable (1986) (citing v. Community Clark agree analysis majority with the which the Non-Violence, Creative 104 employs majority and the result which the (1984)). 82 L.Ed.2d 221 reaches. Before unconsti- statute is held Although majority expressly challenges. Young, disavows overbreadth See doctrine, upon reliance (citing overbreadth at n. 96 S.Ct. 2440 cases and thirteen, page majority, quoting Young, discussing the circumstances in which applies out sets the standard that it later Court had considered facial overbreadth chal- Ordinance, lenges though strike down the this is even had been con- statutes applied by stitutionally applied challengers). same standard courts to evaluate whole, light of other face, as a on its courts have nance tutionally vague phrase construing phrase, cases challenged duty to consider whether meaningful to be devoid of cannot be said narrowing susceptible” to a “readily law is In of its support legislative standards.” make it constitu- that would construction assertions, City pointed has to other tional, so, duty to if courts have a and rejected chal vagueness which have cases construction and adopt narrowing nearly or iden language identical lenges constitutionality of the statute. uphold the appeal. in language at issue this tical Booksellers, Inc., S.W.2d Davis-Kidd 866 News, See, Inc. v. e.g. Triangle Golden at 529. (Pa. Corbett, 974, A.2d 984-985 689 orderly vague not A statute is which Commw.Ct.1997)(“[T]heterms ‘substantial’ can rendered processes litigation of be meanings ‘significant’ recognized have and sufficiently pur- definite and certain of language in and the use English judicial poses of decision. Courts should definition of ‘adult bookstore’ such any limiting instructions of consider merely not render it because does challenged statute that state authorities of type of one item percentage business fact, duty of have is the proffered. Chicago v. Scan specified.”); City is not of a construction which adopt the courts 292, Inc., Books, 58 Ill.App.3d dia a statute and avoid constitu- will sustain (1981) (“In 14, Ill.Dec. 430 N.E.2d permits tional conflict if its recitation provision of their that the support of claim such a construction. which defines adult book the Ordinance Burkhart 58 697-98 State v. S.W.3d vague, point stores defendants (internal (Tenn.2001) quotations and cita- words, significant’ being ‘substantial or omitted). determining tions When wheth- unconstitutionally find defen vague. We er ordinance word, without merit. argument dants’ vague, any regulato- courts must consider of used in the definition ‘substantial’ as ry limiting refinements or constructions. is not so indefinite as adult bookstores Estates, Village See of Hoffman Ordinance void and unenforcea render the 1186; Grayned n. S.Ct. been construed as ble. That term has City Rockford, 408 meaning in numer having an ascertainable (1972); see 33 L.Ed.2d schemes, (citations omit statutory ous also, 590, 592 Lyons, State v. 802 S.W.2d ted)”); Char Pops, City N Inc. v. Mom (Tenn.1990) (rejecting vagueness the facial (W.D.N.C.1997) lotte, F.Supp. by adopting and to a challenge applying Young] to reasoning (“Applying [of th[e] interpretation Tennessee statute construing them in challenged phrases, “lawful order” which the New York Court whole, light of detailed ordinance as this to a Appeals adopted applied had construing either light of cases statute). York similar New affording very phrases principles those in proffering limiting than Rather doing, concludes undersigned for so struction, City has maintained that the phrases challenged definitions and limit constitutional without a meaningful legislative Ordinance is are devoid reasonably the terms “sub ing specific instruction because and are standards “significant” are words ordi in mind that unavoidable precise, ‘bearing stantial” and preci “men easily is not fatal and celestial narily imprecision used and understood ”). Additionally, necessary.’ City intelligence.” common has sion is not that the Ordinance phrase pointed out argued challenged that when the has which terminology same the Ordi uses the exact “in the context of considered many state and federal employ. statutes Id. agree with the majority that brief, As the notes in its the word definition of “substantial” makes little appears “substantial” 419 times in the sense the context of the Ordinance. “significant” Tennessee Code and the word That is true background, because “[t]he appears Similarly, 221 times. the terms purpose, general circumstances under “significant” appear “substantial” and each which words are used in a statute must 2,000 over times the United States considered, improper and it is take reasons, For Code. all these and, word a few words from its context maintains that the Ordinance is not uncon isolated, with them attempt to determine stitutionally vague. meaning.” their Eastman Chemical v.Co. Johnson, (Tenn.2004). S.W.3d in is correct its assertion’that However, willingness our apply con- the terms in the used Ordinance are com- text-appropriate definition to one of the monly used in many statutes and ordi- terms which in appears sug- Ordinance result, nances. As a courts have often gests challenged that the terms are “readi- applied context-appropriate definitions to ly susceptible” to context-appropriate nar- these terms. See Digest 38 Tenn. 2d. Sub- rowing (West definitions which 2004) would alleviate stantial 1999 & Supp (citing perceived any vagueness. unconstitutional cases which defined the terms “substan- See, (“The e.g., Lyons, 802 tial,” S.W.2d at 592 abuse,” “substantial “substantial and concept of ‘lawfulness’ evidence,” inherently is not material “substantial and mate- unconstitutionally vague, circumstances,” people and of change rial “significant intelligence common involvement”). always guess need not part,” and “significant state what a statute means ‘lawful’ inas- Indeed, recently Court this defined the much as that term must be considered word “substantial” by referencing Black’s of the context the statements of law con- Valentine, Law Dictionary. In See re tained relevant statutes and court rul- (Tenn.2002). S.W.3d 548-49 We ings.”). usage Given the common of these adopted a meaning appropriate to the con- Court, terms and the fact that and text of the statute in which the term had courts, other applied context-appro- have used, stating been as follows: definitions, priate majority’s conclusion Substantial is noncompliance not defined “readily that the is suscepti- Ordinance not in the termination statute. statute to limiting, ble” context-appropriate con- clear, however, is that noncompliance is Netto, puzzling. struction v. See State enough justify pa- termination of (Tenn.1972) (re- 486 S.W.2d 729-30 rights; noncompliance rental must jecting vagueness challenge the facial be substantial. Black’s Law Dictionary stating “ordinary the statute used defines “substantial” as real “[o]f worth to express adequate terms ideas which find importance.” Black’s Law Dictio- usage and of understanding. The use (6th ed.1990). nary 1428 In the context common experience as a glossary neces- requirements permanency of a meet, sary practical of demands plan, importance the real worth and legislation.”). noneompliance should be measured Indeed, degree both the even Entertainment noncompliance recognizes weight assigned any perceived vagueness to that requirement. problem in Terms which are not could have reasonable and Ordinance been irrelevant, example “constitutionally related are and substantial cured. As an noncompliance with such specificity, terms is irrele- sufficient” Entertainment Re- points zoning vant. sources to a Nashville ordi- store” which defines “Adult video nance MILLIGAN, Jr. having a ma- L.

“a James commercial establishment majority its floor jority of stock or its my to adult videos.” space dedicated

view, significant phrase, “substantial RE- OF PROFESSIONAL BOARD trade,” used in the portion of its stock THE SUPREME OF SPONSIBILITY to a readily susceptible City’s Ordinance TENNESSEE. OF COURT to the defi- narrowing construction similar In- ordinance. nition used the Nashville Tennessee, Supreme Court deed, construing phrase “substantial at Nashville. and trade” significant portion of its stock majority portion “a stock mean 2, 2005 Session. Feb. wholly consistent with and trade” would be 28, 2005. June meanings of the commonly recognized and would terms used the Ordinance revision,” as

hardly constitute a “drastic majority suggests.4

III. Conclusion agree majority I

Although with the precision where further

“this is not case statutory language impossi- is either Lawson, impractical,” Kolender v.

ble 1855, 75 (1983), view, my we need

L.Ed.2d 903

not and not consider whether should

Ordinance This should be appeal

its face. can and that the Ordinance

resolved on basis unconstitutionally vague applied

was as assuming Even were Video.

necessary vagueness to consider the facial

challenge, agree I with would unable to majority’s analysis and conclusion be- opinion

cause am of the Ordi- narrowing readily susceptible to a

nance reasons, all I con-

construction. For these ma- only in the reached

cur result

jority. worth”; amount, value, defining See, able in Int’l Dictio- e.g., Webster’s Third New weighty, "significant” "important, nota- Language Unabridged, nary English ble”; defining part "a of a "portion” as (Philip Gove Babcock whole”). ed.1971) (defining "substantial” as "consider- notes ever, Young en- challenge addressed a to an Young refused to consider the defendants' tirely separate and section vagueness challenge challenged because the Young pass did not Court in consti- "unquestionably” applied to ordinances this tutionality of the definition at issue however, held, only defendants. The Court so case. concluding first the ordinances at that after significant did not issue create deterrent “sig- terms “substantial” by the fact that the regulated guidance businesses charged with its en- and familiar terms or officials common ordinance nificant” are gives it neither “Accordingly, forcement. they argument support does not ordinary ... nor sufficient people notice to in the ordinance. as used are constitutional officials guidance to law enforcement certainly are “big” and “small” The words prevent arbitrary law enforcement.” well, if used to familiar as but common and Davis-Kidd, type at This 532. S.W.2d conduct, they would no prohibited describe pre- vague, drafting “standardless” than do muster more constitutional pass prohib- cisely what the Due Process clause For ordinance. the terms its, prosecu- it “allows policemen, because capable that must be words themselves tors, juries personal their pursue of ordi- ready understanding persons ab- may not so predilections. Legislatures that is but the conduct nary intelligence, responsibilities setting dicate their readily under- must be prohibited that Smith, of the criminal law.” standards stood.3 575, 94 415 U.S. at S.Ct. City objects using note that the We argument that “substan- To bolster Major, Ferguson, testimony of Officers constitutional “significant” are tial” and ordi- and Shelton demonstrate statutes, out points when used in unconstitutionally vague. The nance is of times appear terms hundreds that the content, meaning City points out that the federal statutes. See state and of the ordinance not a application Warren, Rd., Inc. v. Thirteen Mile proven by fact to be witness matter of (E.D.Mich.1985). As F.Supp. but is rather a matter of law to testimony however, notes, we must itself rel. State ex construed Court. in the of the terms context read those 533; Demp- at also Pope, 145 S.W.3d see The terms “substantial” ordinance. sey Mfg. Corp., S.W.2d Correct merely tell “significant” this ordinance As the Court of (Tenn.Ct.App.1988). certain, has a unde- that if a business us correctly held, however, here the Appeals material, sexually-explicit fined amount testimony illustrates the issue witnesses’ subject to the location restric- it is then very vagueness at heart of the chal- What is “substan- of the ordinance. tions of the lenge: enforcement ordinance was person may to one “significant” tial” or predilections” “personal left “insig- just easily be “unsubstantial” Smith, 575, police. fact that another. The nificant” to 1242. The officers’ confusion demon- provide fails to amount of strates that the ordinance was unsure what City itself

Case Details

Case Name: City of Knoxville v. Entertainment Resources, LLC

Court Name: Tennessee Supreme Court

Date Published: Jun 29, 2005

Citation: 166 S.W.3d 650

Docket Number: E2002-01143-SC-R11-CV

Court Abbreviation: Tenn.