The Honorable Ann D. Montgomery, United States District Judge for the

1

District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-3500

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Scope Pictures, of Missouri, Inc.; Ray's *

Play Pen, Inc.; Time for News, Inc.; *

Svec Company; Larry H. Minkoff; *

Jak, Inc.; Kelkin, Inc., *

* Appeal from the United States

Plaintiffs - Appellants, * District Court for the

* Western District of Missouri.

v. *

*

City of Kansas City, *

*

Defendant - Appellee. *

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Submitted: March 9, 1998

Filed: April 20, 1998

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Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

MONTGOMERY, District Judge.1

_____________

BOWMAN, Circuit Judge.

The appellants sued the City of Kansas City, Missouri, under 42 U.S.C. § 1983

(1994), challenging the validity of the Motion Picture Arcade Booth Establishments

Ordinance. See Kansas City, Mo., Code of Ordinances ch. 12, art. VII, §§ 12-275 to
Hereinafter sections of ch. 12, art. VII of the Kansas City, Missouri, Code of 2

Ordinances will be cited as "Ordinance."

The Honorable Gary A. Fenner, United States District Judge for the Western

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District Of Missouri.

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12-283 (1997). The City enacted the ordinance in mid-1997 to regulate video viewing 2

booths located in adult bookstores. In passing the ordinance, the City intended "to

further the public health and safety of motion picture arcade booth establishments by

reducing the likelihood that patrons will engage in [various sexual activities] within

such commercial premises." Id. § 12-275(a). The City determined regulation of such

facilities was needed to prevent the spread of sexually transmitted diseases that may

occur "[b]ecause [of] motion picture arcade booth establishments, structures, or parts

thereof which, due to their design, are used for sexual conduct." Id. § 12-275(b). The

appellants, who each operate adult entertainment establishments, sought declaratory

and injunctive relief against the enforcement of the ordinance, asserting both federal

and supplemental state constitutional claims. After two evidentiary hearings, the

District Court entered judgment for the City, and the appellants appeal. We affirm. 3

There are several provisions in the ordinance about which the appellants

complain. First, the ordinance prohibits doors on motion picture arcade booths (the

"open-booth" requirement). Second, the ordinance requires motion picture arcade

establishments to post signs and make available to patrons pamphlets containing

information on sexually transmitted diseases. Finally, the ordinance requires that

motion picture arcade booths be maintained in a clean and sanitary condition. 

The appellants first contend that the ordinance is overbroad, thus running afoul

of the Constitution. The purpose of the ordinance is to regulate "[m]otion picture

arcade booth establishments," meaning "[a]ny business wherein one or more motion

picture arcade booths are located." Id. § 12-276(b). The ordinance defines a "[m]otion

picture arcade booth" as:
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Any booth, cubicle, stall or compartment which is designed, constructed

or used to hold or seat patrons and is used for viewing live performances

or for presenting moving pictures or viewing publications by any

photographic, electronic, magnetic, digital or other means or medium

(including, but not limited to, film, video or magnetic tape, laser disc,

cd-rom, books, magazines or periodicals) for observation by patrons

therein. . . . A motion picture arcade booth shall not mean a theater,

moviehouse, playhouse or a room or enclosure or portion thereof which

is designed, constructed or used to seat more than ten persons.

Id. § 12-276(a). The appellants claim that the ordinance, as written, would apply to all

small media facilities, including those having no involvement in the dissemination of

sexual materials. They argue that the ordinance is therefore overbroad.

Under the First Amendment overbreadth doctrine, a statute may be challenged

on its face by "an individual whose own speech or expressive conduct may validly be

prohibited or sanctioned . . . because it also threatens others not before the court--those

who desire to engage in legally protected expression but who may refrain from doing

so rather than risk prosecution or undertake to have the law declared partially invalid."

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). The overbreadth

doctrine, however, is considered "strong medicine," and therefore invoked only when

the overbreadth is "substantial." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615

(1973). 

The appellants would have us read the statute to include "all manner of small

media facilities." Appellants' Brief at 8. The definition set forth in the ordinance does

not, however, compel such a broad interpretation. The ordinance applies only to

booths, cubicles, stalls, or compartments that are used for viewing live performances,

for presenting moving pictures, or for viewing publications. See Ordinance § 12-

276(a). Further, these booths, cubicles, stalls, or compartments must be located within

a business. See id. § 12-275(b). The ordinance sufficiently directs its application to
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the type of motion picture arcade booths the City is attempting to regulate. We

therefore reject the appellants' overbreadth claim.

The appellants also contend that the ordinance is an unconstitutional time, place,

and manner restriction on protected speech. The ordinance states that "[e]ach motion

picture arcade booth shall have at least one side completely open to adjacent public

rooms or adjacent hallways and must be sufficiently illuminated," id. § 12-277(c)(2),

and that the open side "shall not have any curtain, door, wall, enclosure or visual

obstruction," id. § 12-277(c)(3). The appellants correctly point out that these

requirements regulate the manner in which one may engage in speech activities (i.e.,

viewing movies in motion picture arcade booths). The appellants acknowledge,

however, that time, place, and manner restrictions are constitutional on the condition

that the restrictions "are justified without reference to the content of the regulated

speech, that they are narrowly tailored to serve a significant governmental interest, and

that they leave open ample alternative channels for communication of the information."

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation to additional cases

omitted). The appellants' contention is that the ordinance is not narrowly tailored

because of the breadth of its application and that the ordinance is therefore

unconstitutional. But the appellants already have argued that the ordinance is

overbroad, and we already have decided that it is not.

 

We previously have held that similar open-booth ordinances are valid manner

restrictions on speech. See Doe v. City of Minneapolis, 898 F.2d 612, 620 (8th Cir.

1990); Postscript Enters. v. City of Bridgeton, 905 F.2d 223, 227 (8th Cir. 1990). In

the present case, we conclude that the ordinance is content-neutral, that the ordinance

is narrowly tailored to serve a significant governmental interest, and that alternative

channels for communicating such materials are left open. We have no difficulty

deciding that the open-booth requirement in this case is a valid manner restriction. As

such, it does not violate the First Amendment.
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The appellants next take issue with the provisions in the ordinance that require

motion picture arcade booth establishments to post approved signs containing

information "describing the risks and methods of transmission of venereal diseases and

listing unsafe sexual activities," Ordinance § 12-277(d), and to make available to

patrons approved pamphlets "contain[ing] information on gonorrhea, syphilis and

AIDS," id. § 12-278. The appellants assert that the requirement compels speech and

thus violates the First Amendment. We disagree. 

The First Amendment's guarantee of free speech "necessarily compris[es] the

decision of both what to say and what not to say." Riley v. National Fed'n of the Blind

of N.C., Inc., 487 U.S. 781, 797 (1988). But we have concluded that "First

Amendment protection against compelled speech . . . has been found only in the context

of governmental compulsion to disseminate a particular political or ideological

message." United States v. Sindel, 53 F.3d 874, 878 (8th Cir. 1995). In this case, no

political or ideological message is implicated in providing information about sexually

transmitted diseases and unsafe sexual activities. We therefore hold that these

requirements do not violate the First Amendment. 

A related contention challenges the requirement that the signs and pamphlets be

prepared or approved by the City's department of neighborhood and community

services. See Ordinance §§ 12-277(d) and 12-278. The appellants claim that these

provisions grant to officials too much discretion because no time limits for approval are

included. They argue that "[c]ity officials could withhold approval of the required signs

and pamphlets" and that "the ordinance can thus function as the equivalent of a license

revocation." Appellants' Brief at 26. 

To support their position, the appellants cite cases requiring procedural

safeguards in the issuance of licenses to engage in speech activities. See Freedman v.

Maryland, 380 U.S. 51, 59 (1965) (holding that an application for a license to exhibit

a film must be granted or denied within a specified brief time period); Riley, 487 U.S.
Closure by administrative order can occur only after the City has served notice 4

and an order setting forth the violations. See Ordinance § 12-281(a)(1). The

establishment then has forty-eight hours from the time of service either to remedy the

violation or to request a hearing. See id. § 12-281(a)(3). A hearing request stays the

City's exercise of power to order closure until the hearing is concluded and a decision

has been issued. See id. § 12-281(a)(4).

The ordinance provides for administrative enforcement for "any violation of the 5

requirements or duties set out in this article requiring that at least one side of [the

booths be open], that the surface of [the walls between booths be metal and free of

holes], and that no more than one person occupy a booth at any one time." Ordinance

§ 12-281(a)(1). 

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at 802 (holding that failure to provide time limitations within which licensor must issue

license to fundraiser is unconstitutional). The facts of this case, however, do not

present an analogous situation. Surely there are instances where the threat of revoking

a license and the delay in granting a license present serious constitutional issues. But

the ordinance in question does not give City officials the power to revoke the

appellants' licenses to operate upon noncompliance with the sign and pamphlet

requirements. So any delay inherent in the approval of the signs and pamphlets is

irrelevant.

The ordinance authorizes three methods of enforcement: administrative

enforcement, municipal court enforcement, and injunctive relief. See Ordinance § 12-

281. The administrative enforcement provision is the only method by which the City

unilaterally can order closure of the noncompliant portion of the establishment. See 4

id. § 12-281(a)(3). The ordinance provides, however, that administrative enforcement

can be utilized only for certain, specified violations of the ordinance, each of which

specifically relates to the structure and occupancy of the arcade booths. See id. § 12- 5

281(a)(1). The sign and pamphlet regulations thus cannot be enforced by the

administrative enforcement remedy of closure. The only remaining means of

enforcement is to initiate legal proceedings in municipal court or to apply for injunctive
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relief to the appropriate state court. We believe that these judicial enforcement

methods do not function as the equivalent of a license revocation. The constitutional

safeguard, which requires that final action on an application for a license to engage in

protected speech activities be taken within a specified time period, simply does not

apply in these circumstances.

The appellants next argue that the provision requiring booths "be maintained in

a clean and sanitary condition" is unconstitutionally vague. Id. § 12-277(a). We will

uphold this provision on a vagueness challenge unless persons "of common intelligence

must necessarily guess at its meaning." Hynes v. Mayor of Oradell, 425 U.S. 610, 620

(1976) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).

"[M]athematical certainty" cannot be expected, so we look to whether "it is clear what

the ordinance as a whole" requires. Grayned v. City of Rockford, 408 U.S. 104, 110

(1972). We conclude that a person of common intelligence would have no difficulty

in knowing how to comply with the requirement that motion picture arcade booths be

kept in a "clean and sanitary condition." Such booths are not surgical operating rooms,

nor are they even establishments where food or drink is served. The requirement at

most means only that the booths must be kept clean and free of trash and bodily fluids.

The maintenance of extraordinary standards of cleanliness is not required. 

We turn to the appellants' final argument that the open-booth requirement set

forth in the ordinance violates Missouri's constitution. Under Missouri's constitution,

"private property shall not be taken or damaged for public use without just

compensation." Mo. Const. art 1, § 26. The appellants contend that the open-booth

requirement deprives them of a vested property right, thereby rendering the ordinance

unconstitutional under Missouri law. 

To support their contention, the appellants rely primarily on Missouri cases

involving zoning ordinances. Hoffmann v. Kinealy, 389 S.W.2d 745 (Mo. 1965) (en

banc), exemplifies this line of cases. In Hoffmann, the Missouri Supreme Court held
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that a newly enacted zoning ordinance, which prohibited the open storage of lumber,

building materials, and construction equipment, constituted a taking under Missouri's

constitution. See id. at 754-55. The court recognized the validity of "pre-existing

lawful nonconforming uses," id. at 750, and concluded that termination of such preexisting, lawful, nonconforming uses was a taking, see id. at 754-55. Hoffmann

confirmed the rule, long assumed in Missouri, see id. 748-49, 750, that a pre-existing,

lawful, nonconforming use is a vested property right, which cannot be abrogated by a

newly enacted ordinance unless just compensation is paid to the landowner. 

Missouri case law, however, restricts the application of the nonconforming-use

rule to cases involving zoning ordinances. The Missouri Court of Appeals has defined

nonconforming use as "a use of land which lawfully existed prior to the enactment of

a zoning ordinance and which is maintained after the effective date of the ordinance

even though not in compliance with use restrictions." Missouri Rock, Inc. v. Winholtz,

614 S.W.2d 734, 739 (Mo. Ct. App. 1981). Missouri courts expressly restrict the

nonconforming-use rule to apply to cases where zoning ordinances are at issue. See,

e.g., State ex rel. Nealy v. Cole, 442 S.W.2d 128, 131 (Mo. Ct. App. 1969) ("[A]

comprehensive zoning ordinance must permit the continuation of non-conforming uses

in existence at the time of the enactment of the ordinance . . . ."). Further, Missouri

courts have distinguished zoning ordinances from other types of municipal regulations.

See, e.g., Fleming v. Moore Bros. Realty Co., 251 S.W.2d 8, 15 (Mo. 1952) ("Zoning

regulations are distinct in character from building regulations . . . ."). Therefore, we

need not determine whether the appellants have established a lawful, nonconforming

use because the ordinance in question is not a zoning ordinance. Rather, it is a public

health and safety regulation and, as with most ordinances, reflects the City's exercise

of its general police powers.

 Under Missouri law, municipal ordinances enacted pursuant to a city's general

police powers are reviewed for reasonableness. See Olympic Drive-In Theatre, Inc.

v. City of Pagedale, 441 S.W.2d 5, 10 (Mo. 1969). A presumption of reasonableness
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attaches to such ordinances, see Craig v. City of Macon, Missouri, 543 S.W.2d 772,

775 (Mo. 1976) (en banc), and the party challenging the ordinance has the burden to

show that the ordinance is unreasonable, see Easy Living Mobile Manor, Inc. v. Eureka

Fire Protection Dist., 513 S.W.2d 736, 738-39 (Mo. Ct. App. 1974). 

In Olympic Drive-In, the Missouri Supreme Court struck down a municipal

ordinance as "unreasonable, oppressive and confiscatory." Olympic Drive-In, 441

S.W. 2d at 10. The ordinance would have compelled a drive-in theater to relocate its

screen and construct a fence of adequate height so that movies would no longer be

visible from public streets. The drive-in theater would have been forced to spend

$250,000 to $280,000 to comply with the ordinance. This was twice the theater's initial

investment, and evidence showed that the theater could not raise that much capital.

Moreover, the court concluded that the required fencing or change of screen location

would not achieve the city's stated purpose for the ordinance, the alleviation of traffic

congestion. The court also looked to what it considered the real purpose of the

ordinance, "to satisfy the demands of the citizens that something be done about the

plaintiff showing pictures of nudes and semi-nudes which could be seen from the

streets," and concluded that the ordinance's requirements were too sweeping. Id. at 10.

The circumstances in the present case are far removed from those in Olympic Drive-In.

We hold that the ordinance in the case at hand is reasonable. The appellants

presented no evidence regarding the cost involved in removing the doors from the

booths and otherwise complying with the ordinance, and they likewise presented no

evidence to show the amount of any predicted loss of revenue that would result from

the removal of the doors. We also believe the ordinance is reasonably calculated to

curtail sexual activity inside the booths and the attendant spread of diseases, which is

the stated purpose of the ordinance. Finally, the requirements of the ordinance do not

infringe upon any fundamental rights. Not only are patrons still able to view inside the

booths whatever movies they choose, but they also may view the same movies at the
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appellants' establishments in a theater setting, and they may rent or purchase at the

appellants' establishments those same movies to view in the privacy of their homes. 

In sum, we find no merit in any of the appellants' contentions. We therefore

affirm the decision of the District Court. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.