IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 4, 2005 Session

CITY OF KNOXVILLE v. ENTERTAINMENT RESOURCES, LLC.

 Appeal by Permission from the Court of Appeals

Chancery Court for Knox County

No. 140736-2 Daryl Fansler, Chancellor

No. E2002-01143-SC-R11-CV - Filed June 29, 2005

We granted this appeal to determine the constitutionality of a Knoxville city ordinance regulating

the location of adult businesses. The chancery court upheld the ordinance and enjoined operation

of the defendant’s video store after finding that it fit the definition of an adult bookstore and was

located within 1,000 feet of prohibited areas and therefore was operating in violation of the

ordinance. The Court of Appeals reversed on the grounds that the ordinance’s definition of adult

bookstores is unconstitutionally vague. Because we have also determined that the ordinance is

unconstitutionally vague under the United States and Tennessee Constitutions, we affirm the

decision of the Court of Appeals but on the separate grounds set forth herein. We remand to the trial

court for an assessment of the amount of damages incurred by the defendant as a result of the

chancery court’s injunction.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Affirmed

E.RILEY ANDERSON,J., delivered the opinion of the court, in whichADOLPHO A.BIRCH,JR.,JANICE

M.HOLDER, and WILLIAM M.BARKER,JJ., joined. FRANK F.DROWOTA,III,C.J., filed a concurring

opinion.

Angela R. Bolton and W. Morris Kizer, Knoxville, Tennessee, for the Appellant, City of Knoxville.

Philip N. Elbert and W. David Bridgers, Nashville, Tennessee, and Richard L. Gaines, Knoxville,

Tennessee, for the Appellee, Entertainment Resources, LLC.

OPINION

In 1979, the Knoxville City Council adopted an ordinance regulating, among other things,

the location of “adult businesses.” At all times relevant to this appeal, Knoxville City Code section

16-468 (“the ordinance”) provided that adult businesses could not be located within 1,000 feet of:

a residentially-zoned district; an area devoted to recreational activity; or an establishment selling
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alcoholic beverages. The ordinance included adult bookstores in its definition of adult businesses.

An adult bookstore was defined as:

an establishment having as a substantial or significant portion of its

stock and trade books, magazines and other periodicals, videotapes

or other electronic media which are distinguished or characterized by

their emphasis on matter depicting, describing or relating to specified

sexual activities or specified anatomical areas, or an establishment

with a segment or a section devoted to the sale or display of such

material. 

Knoxville City Code § 16-468(a) (emphasis added). The parties dispute whether the phrase

“substantial or significant portion of its stock and trade” is impermissibly vague under the United

States and Tennessee Constitutions. 

Background

The City of Knoxville filed a complaint in Knox County Chancery Court seeking to enjoin

the defendant, Entertainment Resources, from operating its store in alleged violation of the

ordinance. The following facts were developed before the chancery court and stipulated by the

parties. 

On August 3, 1998, Entertainment Resources opened a store called Fantasy Video at 6422

Papermill Road in Knoxville, Tennessee. Entertainment Resources also operated two stores in

Nashville and one in Columbia, Tennessee. It planned to open two Knoxville stores in addition to

Fantasy Video. 

Fantasy Video, like Entertainment Resources’ other stores, rented and sold videotapes for

off-site viewing. When Fantasy Video opened, its inventory consisted of 80% adult or sexually

explicit, “X-rated” videos and 20% family or general videos. General videos were displayed in the

store’s “front room.” Adult videos were displayed in the store’s “back room,” which was restricted

to patrons 18 years of age and older.

Under the spacing provisions of the Knoxville ordinance, an “adult business” could not

legally locate at the site of the Fantasy Video store. It was stipulated that the site was located next

door to the New Mexicali Rose restaurant, which sold beer and liquor; within 1,000 feet of a Boy

Scouts administrative building, and within 1,000 feet (as the crow flies) of a residentially zoned

district, although the residential district was separated from the store by Interstate 40. Entertainment

Resources did not believe that the BoyScouts building qualified as a building devoted to recreational

activity and did not believe it was within 1,000 feet of a residential district. Although Entertainment

Resources had full knowledge that the New Mexicali Rose restaurant sold beer and liquor, it chose

to locate Fantasy Video on Papermill Road because its lawyer had advised the company that the

Knoxville ordinance was unconstitutional. 
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Shortly after Fantasy Video opened in August 1998, the Knoxville Police Department began

inspecting the store and issuing citations for violation of the ordinance on an almost daily basis. The

citations alleged that Fantasy Video was an adult bookstore within the meaning of the ordinance

because a substantial or significant portion of its stock and trade constituted videotapes containing

material within the ambit of the ordinance. 

In response to the citations, Entertainment Resources attempted to gain clarification from the

police and from the City’s law director as to what constituted a “substantial or significant” portion

of stock and trade under the ordinance, but no guidance was provided.

At a hearing on some of the citations in Knoxville City Court, three of the officers involved

in the inspections of Fantasy Video testified that they had received no guidance or training in

interpreting the ordinance. When asked to define the terms in the ordinance, Sergeant Ferguson

testified that he could not define “substantial” other than, “substantial means substantial as red

means red; I know red when I see it, but I can’t describe red.” He further testified that “significant

to me means a quantity of something that, compared to something else [sic].” Officer Major testified

that “substantial is substantial. I don’t really have an opinion on the definition of substantial, it is

self-explanatory.” He further explained, “significant is just like substantial, I mean, significant is

significant, just as substantial is substantial.” Officer Shelton similarly testified that “substantial

means substantial just like the color blue means the color blue. I can’t provide any other [sic].” He

also testified that “significant means significant.” It was stipulated that if called to testify further,

the officers would testify that in making the evaluation of “substantial” and “significant” they would

look to what appeared to them to be the “important part of the business.”

 By November 1998, Entertainment Resources had altered the composition of Fantasy

Video’s inventory. A police inventory on November 17, 1998, revealed that approximately 57% of

the stock was general feature videos and approximately 43% of the stock was adult-oriented videos.

The balance was later adjusted again; the tally from a count on December 8, 1998, was 70% general

feature and 30% adult feature. Despite these alterations, the City police continued to issue citations

up until the date that the preliminary injunction was entered. As of November 1998, Entertainment

Resources had been cited and found guilty of fifty-three separate violations of the ordinance. As of

November 16, 1998, at least 75% of Fantasy Video’s revenues were generated by the “back room”

videos. 

The record indicates that at least one other business in Knoxville rents and sells videos that

fall within the purview ofthe ordinance. It was stipulated that Gemstone Video Stores have separate

back rooms devoted to adult-oriented videotapes and magazines. It was stipulated that the City takes

the position that Gemstone Video Stores are not “adult bookstores” within the meaning of the

ordinance and that the back room stock is not a substantial or significant portion of Gemstone

Video’s stock and trade, but the record does not show the percentage breakdown between adult

videos and general videos. 
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In spite of the repeated citations, Entertainment Resources continued to operate Fantasy

Video. Therefore, on November 4, 1998, the City of Knoxville filed a complaint for injunctive relief

seeking to enjoin Entertainment Resources from operating in violation of the ordinance. In its

answer, Entertainment Resources averred numerous defenses, including the claim that the ordinance

is impermissibly vague under the United States and Tennessee Constitutions.

On December 10, 1998, the chancery court granted the City’s motion for a temporary

injunction restraining Entertainment Resources from operating an adult bookstore at the Papermill

Road location. The chancery court reasoned that a temporary injunction was appropriate because

Entertainment Resources had opened the Fantasy Video store on Papermill Road with full

knowledge of the ordinance, and it was not disputed that the adult videos offered for sale and rental

at Fantasy Video were within the purview of the ordinance. The chancery court further noted that

over 75% of the store’s revenue and at least 85% of its customers were attributable to the adult

videos. The court opined that the general video inventory was, “despite its number . . . insignificant

and insubstantial to this business’s stock in trade.” 

For two years after the entry of the temporary injunction there was little movement on the

merits of the case. Fantasy Video’s general video business eventually dwindled to the point that it

was only open two hours per week. In January 2001, Entertainment Resources lost its lease on the

Papermill Road location and the Citymoved to dismiss the suit as moot. The chancery court granted

that motion on July 9, 2001, except with respect to Entertainment Resources’ claim for damages.

Entertainment Resources argued that it was entitled to damages not only as to the Fantasy Video

store, which had only operated for four months on Papermill Road prior to entry of the injunction,

but also as to the two additional stores it had planned to open in Knoxville.

Nine months later, on April 15, 2002, the chancery court entered an order upholding the

injunction and denying damages. The court held that because Entertainment Resources was in

“direct violation” of the ordinance, it was not entitled to challenge it as vague. The court also held

that the ordinance was a constitutional time, place and manner restriction aimed at combating the

secondary effects of adult businesses.

Entertainment Resources appealed. The Court of Appeals reversed the chancery court,

reasoning that because neither the City nor the enforcing officers could define the terms “substantial”

or “significant,” and because the imprecision of the terms prevented “‘men of common intelligence’”

from understanding the ordinance, the ordinance was “unconstitutionally vague and, therefore,

unenforceable.” The Court of Appeals remanded to the trial court for a determination of damages

and attorney’s fees. The appellate court rejected theCity’s argument that Entertainment Resources’

damages as to the Fantasy Video store were too speculative for recovery. The court declined,

however, to instruct the trial court to award damages for the second and third planned, but unopened,

stores, finding that those damages were too speculative to permit recovery. We granted review and

now affirm the Court of Appeals on the separate grounds set forth below.
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Analysis

Standard of Review

Interpretation of statutes and ordinances is a question of law which we review de novo. See

State ex rel. Pope v. U.S. Fire Ins. Co., 145 S.W.3d 529, 533 (Tenn. 2004).

The Vagueness Doctrine

The Fourteenth Amendment to the United States Constitution prohibits states from

“depriv[ing] any person of life, liberty, or property, without due process of law.” Article I, section

8 of the Tennessee Constitution provides an identical protection; as we have often observed, “the

‘law of the land’ proviso of our constitution is synonymous with the ‘due process of law’ provisions

of the federal constitution.” State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980)

(citing Daugherty v. State, 393 S.W.2d 739 (Tenn. 1965)). 

Due process of law requires, among other things, notice of what the law prohibits. Laws

must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,

so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Criminal

statutes “must ‘define the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited . . . .’” Davis-Kidd Booksellers, Inc. v. McWherter, 866

S.W.2d 520, 532 (Tenn. 1993) (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)). A statute

is unconstitutionally vague, therefore, if it does not serve sufficient notice of what is prohibited,

forcing “‘men of common intelligence [to] necessarily guess at its meaning.’” Davis-Kidd, 866

S.W.2d at 532 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973)); see also Leech v. Am.

Booksellers Ass’n, Inc., 582 S.W.2d 738, 746 (Tenn. 1979).

In addition to the requirement of notice, the vagueness doctrine requires that statutes provide

“minimal guidelines to govern law enforcement.” Davis-Kidd, 866 S.W.2d at 532. Because “[a]

vague law impermissibly delegates basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory application,” Grayned, 408 U.S. at 108-09, “the requirement that a legislature

establish minimal guidelines to govern law enforcement” is the more important aspect of the

vagueness doctrine. Smith v. Goguen 415 U.S. 566, 574 (1974).

Vague laws implicating the First Amendment to the United States Constitution and Article

I, section 19 of the Tennessee Constitution are subject to a more stringent standard than laws in other

contexts because of the danger of chilling protected speech. Davis-Kidd, 866 S.W.2d at 531.

“Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of
 The concurring opinion suggests that this is a case involving an overbreadth analysis. The issue before this 1

Court, however, is not whether the ordinance reaches both protected and unprotected conduct, but whether the ordinance

is unclear in its prohibitions. Although “vagueness and overbreadth [are] logically related and similar doctrines,”

Kolender, 461 U.S. at 358 n.8, they are distinct concepts. See, e.g., Davis-Kidd, 866 S.W.2d at 523-29, 531-32. 

 The concurring opinion notes that the Court in Young refused to consider the defendants’ vagueness challenge

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because the challenged ordinances “unquestionably” applied to the defendants. The Court so held, however, only after

first concluding that the ordinances at issue did not create a significant deterrent effect and were “readily subject to a

narrowing construction by the state courts.” Young, 427 U.S. at 60-61. The concurring opinion also notes that the

ordinance upheld by the Court in Young contained the same “substantial or significant” definition with regard to adult

bookstores as does the Knoxville ordinance we consider here. However, Young addressed a challenge to an entirely

separate section of the ordinance, and the Court in Young did not pass on the constitutionality of the definition at issue

in this case. 

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reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of

specificity than in other contexts.” Smith, 415 U.S. at 573.1

With these principles in mind, we turn to the question of whether the ordinance is

unconstitutionally vague. 

Validity of the Ordinance

The City argues that the terms “substantial” and “significant” are familiar terms capable of

ready understanding by persons of ordinary intelligence. Moreover, argues the City, we must

construe “substantial” and “significant” in the context of the statute as a whole. Entertainment

Resources argues that “substantial” and “significant” are unconstitutionallyvague because the terms

have no fixed meaning. 

In evaluating a law, such as the Knoxville ordinance, that “affects communication protected

by the First Amendment,” we may consider a challenge to its facial validity regardless of whether

or not the law is vague as applied to the defendant if “the statute’s deterrent effect on legitimate

expression is . . . both real and substantial and if the statute is [not] readily subject to a narrowing

construction by the state courts.” Young v. Am. Mini-Theaters, 427 U.S. 50, 60 (1976) (internal

quotations omitted); see also U. S. v. Mazurie, 419 U.S. 544, 550 (1975); NAACP v. Button, 371 2

U.S. 415, 432-33 (1963). Here, the deterrent effect was indeed substantial; Entertainment Resources

was forced to close its doors and abandon its plans to open a second and third store. Moreover, as

we explain below, the ordinance is not susceptible to a narrowing construction. For the reasons that

follow, we conclude that the Knoxville ordinance is vague and invalid on its face.

First, the inability of the officers charged with enforcing the ordinance to define its key terms

weighs heavily against the ordinance’s constitutionality. Knoxville Police Officers Ferguson, Major,

and Shelton all testified that they were unable to define “substantial.” The officers testified that the

City had not instructed them as to what constituted a substantial portion of sexually-explicit material

but that they, personally, knew what “substantial” meant. As Entertainment Resources points out,

however, “I know it when Isee it” is not a constitutionally-sound standard. Particularly when speech
 The concurring opinion asserts that “substantial” is capable of definition, noting that this Court defined 3

“substantial” in In re Valentine, 79 S.W.3d 539, 548-49 (Tenn. 2002). The definition of substantial offered in that case

was “‘of real worth and importance.’” Id. at 548 (quoting Black’s Law Dictionary 1428 (6 ed. 1990)). It is difficult th

to see how substituting “of real worth and importance” for “substantial” would clarify what portion of adult-oriented

stock and trade a business could carry without being subject to the ordinance. 

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is being regulated, the Constitution demands that government bodies make a greater attempt to

define what conduct is prohibited to avoid chilling protected speech. 

As written, the determination of what constitutes a “substantial or significant portion” of a

business’s “stock and trade” under the ordinance is an entirely subjective one. The ordinance gives

no objective guidance to businesses regulated by the ordinance or officials charged with its

enforcement. “Accordingly, it neither gives notice to ordinary people . . . nor sufficient guidance to

law enforcement officials to prevent arbitrary law enforcement.” Davis-Kidd, 866 S.W.2d at 532.

This type of vague, “standardless” drafting is precisely what the Due Process clause prohibits,

because it “allows policemen, prosecutors, and juries to pursue their personal predilections.

Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.”

Smith, 415 U.S. at 575.

We note that the City objects to using the testimony of Officers Ferguson, Major, and Shelton

to demonstrate that the ordinance is unconstitutionally vague. The City points out that the content,

meaning and application of the ordinance is not a matter of fact to be proven by witness testimony

but is rather a matter of law to be construed by the Court. State ex rel. Pope, 145 S.W.3d at 533; see

also Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798, 806 (Tenn. Ct. App. 1988). As the Court of

Appeals correctly held, however, here the witnesses’ testimony illustrates the issue at the very heart

of the vagueness challenge: enforcement of the ordinance was left to the “personal predilections”

of the police. Smith, 415 U.S. at 575. The officers’ confusion demonstrates that the ordinance fails

to provide ascertainable standards for law enforcement.

Second, the terms as used in the context of the ordinance cannot be defined with any degree

of precision. In our view, the fact that the terms “substantial” and “significant” are common and

familiar terms does not support the argument that they are constitutional as used in the ordinance.

The words “big” and “small” are certainly common and familiar as well, but if used to describe

prohibited conduct, they would no more pass constitutional muster than do the terms in this

ordinance. For it is not the words themselves that must be capable of ready understanding by

persons of ordinary intelligence, but the conduct that is prohibited that must be readily understood.3

To bolster its argument that “substantial” and “significant” are constitutional when used in

statutes, the City points out that the terms appear hundreds of times in state and federal statutes. See

15192 Thirteen Mile Rd., Inc. v. City of Warren, 626 F. Supp. 803, 820 (E.D. Mich. 1985). As the

City itself notes, however, we must read those terms in the context of the ordinance. The terms

“substantial” and “significant” in this ordinance merely tell us that if a business has a certain,

undefined amount of sexually-explicit material, then it is subject to the location restrictions of the

ordinance. What is “substantial” or “significant” to one person may just as easily be “unsubstantial”
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or “insignificant” to another. The fact that the City itself was unsure what amount of material the

terms were intended to reach is demonstrated both by the City’s failure to offer guidance to

Entertainment Resources and by the confusion of the officers charged with enforcing the ordinance.

Third, the City declined to give any limiting construction to the ordinance, and we are unable

to impose a narrowing definition to salvage its constitutionality. As the concurring opinion notes,

this Court has cautioned that “[c]ourts should consider any limiting instructions of the challenged

statute that state authorities have proffered.” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001).

In this case, however, no such instruction has been proffered, either to Entertainment Resources or

to this Court. Entertainment Resources requested that the City tell it how to reapportion its stock

in order to comply with the ordinance. The City refused. Entertainment Resources then altered the

composition of the Fantasy Video stock from 80% adult-oriented material to 57%, and finally to

30%. After each alteration, the City continued to maintain that Fantasy Video was in violation of

the ordinance. In our view, requiring a party to engage in this sort of guessing game is a clear

violation of due process. The “absence of any ascertainable standard for inclusion and exclusion is

precisely what offends the Due Process Clause.” Smith, 415 U.S. at 578. 

The concurring opinion states that we failed to “consider whether the ordinance is readily

susceptible to a narrowing construction which would alleviate any perceived unconstitutional

vagueness.” But in the absence of any hint from the City, we are at a loss as to how to impart

meaning to the terms “substantial” and “significant” without rewriting the ordinance. The

concurring opinion points out that a similar Nashville ordinance defines an adult video store as an

“establishment having a majority of its stock or a majority of its floor space dedicated to” adult

material. A previous version of that ordinance, invalidated as unconstitutionally vague in Ellwest

Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1581 (M.D. Tenn. 1989), had used the terms

“substantial” and “significant.” While we agree that “majority” is clearer than “substantial,” such

a drastic revision by this Court would amount to impermissible judicial legislation. “[C]ourts may

supply words when reasonably called for. Nevertheless, it is the prerogative of the legislature, and

not the courts, to amend statutes.” In re Swanson, 2 S.W.3d 180, 186-87 (Tenn. 1999) (citations

omitted). In the Nashville case, it was the Nashville City Council, a legislative body, that supplied

the narrowing construction, not the courts.

It is difficult to understand the City’s reluctance to further clarify the ordinance. “Although

due process does not require impossible standards of clarity, this is not a case where further precision

in the statutory language is either impossible or impractical.” Kolender, 461 U.S. at 361 (internal

quotation and citation omitted). Surely the City must have had some idea of what amount of

sexually-explicit material was tolerable under the ordinance, particularly given the fact that the

record shows that the City takesthe position that Gemstone Video Stores, which also stock sexuallyexplicit videotapes, was not in violation of the ordinance. See, e.g., Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503-04 (1982) (ordinance regulating sale of drug

paraphernalia not vague, in part because village attorney issued guidelines to businesses affected by

ordinance).
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In the absence of any articulable standards from the City, we must conclude that the

ordinance is vague “not in the sense that it requires a person to conform his conduct to an imprecise

but comprehensible normative standard, but rather in the sense that no standard of conduct is

specified at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). 

Finally, the City argues that Entertainment Resources may not challenge the ordinance as

facially vague because the Fantasy Video store was clearly within the purview of the ordinance.

Burkhart, 58 S.W.3d at 699. As we have explained, however, in some circumstances even a party

who is within the ambit of an ordinance may challenge it as facially vague if protected

communication is at issue. Young, 427 U.S. at 59-60. Moreover, the facts of this case belie the

City’s insistence that Entertainment Resources fell within the purview of the ordinance, because, as

we have explained, the ordinance has no boundaries. Entertainment Resources reduced its stock

from 80% adult videos to 30% without, evidently, locating the upper edge of what constituted an

acceptable portion of stock devoted to adult-oriented material. Given the City’s inability to articulate

any constitutionally-meaningful standards for the ordinance’s definition of adult bookstores, we

conclude that the ordinance is unconstitutionally vague and unenforceable.

Remaining Issues

Having determined that the definition of “adult bookstores” in Knoxville City Code section

16-468 is void for vagueness, we need not reach the parties’ arguments as to the validity of the

injunction entered by the trial court. We also decline to reach Entertainment Resources’ arguments

that such an ordinance is not a valid time, place and manner regulation, that it failed to provide

reasonable alternative avenues of communication, that such an ordinance may never be justified

using the “secondary effects” doctrine under Article 1, section 19 of the Tennessee Constitution, and

that the injunction was an unconstitutional prior restraint. 

Damages

Because the chancery court held that Entertainment Resources had been properly enjoined

from operating Fantasy Video pursuant to the ordinance, it did not address Entertainment Resources’

damages. We agree with the Court of Appeals that Entertainment Resources is entitled to a

determination of damages as to the Fantasy Video Store on Papermill Road, but that it is not entitled

to damages as to the planned, but unopened, second and third Knoxville stores. We remand to the

chancery court to assess the amount of Entertainment Resources’ damages and to determine the

propriety of awarding attorney’s fees.

Conclusion

Having considered the record and applicable authority, we hold that Knoxville City Code

section 16-468 is vague and unenforceable under the United States and Tennessee Constitutions.

We remand to the chancery court for a determination of Entertainment Resources’ damages flowing
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from that court’s injunction. Costs of the appeal are taxed to the appellant, City of Knoxville, and

its surety, for which execution may issue if necessary.

___________________________________ 

E. RILEY ANDERSON, JUSTICE