The Ho norable Ann D. Montgomery, United States District Judge for th e 1 District of Minnesota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3500

_____________ 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. *

_____________ Submitted: March 9, 1998 Filed: April 20, 1998

_____________ Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, an d MONTGOMERY, District Judge. 1

_____________ BOWMAN, Circuit Judge. The appellants sued the Cityof Kansas City, Missouri, under 42 U.S.C. § 1983 (1994 ), challenging the validity of the Motion Picture Arcade Booth Establishment s Ordinance. See Kansas City, Mo., Code of Ordinances ch. 12, art. VII, §§ 12-275 toHereinafter 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 Wester n 3 District Of Missouri.
-2- 12-283 (1997). The City enacted the ordinance in mid-19 97 to regulate video viewing

2 booths l ocated in adult bookstores. In passing the ordinance, the City intended "t o further the public health and safety of motion picture arcade booth establishments by red ucing the likelihood that patrons will engage in [various sexual activities] withi n such commercial premi ses." Id. § 12-275(a). The City determined regulation of such fa cilities was needed to prevent the spread of sexually transmitted diseases that ma y occur "[b]ec ause [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 declarator y and in junctive relief against the enforcement of the ordinance, asserting both federa l

an d supplemental state constitutional claims. After two evidentiary hearings, th e District Court entered judgment for the City, and the appellants appeal. We affirm.

3

There are several provisions in the ordinance about which the appellant s
co mplain. First, the ordinance prohibits doors on motion picture arcade booths (th e "open-b ooth" requirement). Second, the ordinance requires motion picture arcad e
es tablishments to post signs and make available to patrons pamphlets containin g infor mationon sexually transmitted diseases. Finally, the ordinance requires tha t 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 pictur e arcade b ooth establishments," meaning "[a]ny business wherein one or more motio n picture arcade booths are located." Id. § 12-276(b). The ordinan ce defines a "[m]otion picture arcade booth" as:-3-

Any booth, cub icle, stall or compartment which is designed, constructed or used to hold or seat p atrons and is used for viewing live performances
or for presenting moving pictures or viewing publications by an y photo graphic, electronic, magnetic, digital or other means or mediu m (including, but not limited to, film, video or magnetic tape, laser disc , cd- rom, books, magazines or periodicals) for observation by patron s 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 o f sexual materials. They argue that the ordinance is therefore overbroad.

Un der 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 ot hers not before the court--those who d esire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertak e to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 503 (1985). The overbreadt h doctrine, however, is consid ered "strong medicine," and therefore invoked only when the overbreadth is "substantial." Broadrick v. Oklahoma , 413 U.S. 601, 613, 61 5 (1973).

The appellants would have us read the statute to include "all manner of smal l media facilities." Appellants' Bri ef at 8. The definition set forth in the ordinance does not, how ever, compel such a broad interpretation. The ordinance applies only t o booths, cubicl es, stalls, or compartments that are used for viewing live performances, forpre senting 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-4-

the type of m otion picture arcade booths the City is attempting to regulate. W e therefore reject the appellants' overbreadth claim.
The appellants also contend that the ordinance is an u nconstitutional time, place, and manner restrict

ion on protected speech. The ordinance states that "[e]ach motion pic ture arcade booth shall have at least one side completely open to adjacent publi c
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 visua l obstr uction," id. § 12-277(c)(3). The appellants correctly point out that thes e 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 regulate d 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 Raci sm , 491 U.S. 781, 791 (1989) (citation to additional cases omitte d). The appellants' contention is that the ordinance is not narrowly tailore d bec ause of the breadth of its application and that the ordinance is therefor e unconstitutional. But the appellants already have argued that the ordinance i s overbroad, and we already have decided that it is not.

We pre viously have held that similar open-booth ordinances are valid manne r 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 narr owly tailored to serve a significant governmental interest, and that alternativ e chan nels for communicating such materials are left open. We have no difficulty deciding that the open-booth requ irement in this case is a valid manner restriction. As such, it does not violate the First Amendment.-5-

The appe llants next take issue with the provisions in the ordinance that require motion picture arcade booth establishments to post approved signs containin g information "describing the risks and methods of transmission of venereal diseases and listing unsafe sexual activities," Ordinance § 12-277(d), and to make available t o patrons approved pamphlets "contain[ing] information on gonorrhea, syphilis an d AI DS," id. § 12-278. The appellants assert that the requirement compels speech and thus violates the First Amendment. We disagree.

The Fi rst Amendment's guarantee of free speech "necessarily compris[es] th e 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 "Firs t Amendment protection against compelled speech . . . has been found only in t he context of governmental compulsion to disseminate a particular political or ideologica l message." United S tates v. Sindel , 53 F.3d 874, 878 (8th Cir. 1995). In this case, no politi cal or ideological message is implicated in providing information about sexually transmitted diseases and unsafe sexual activities. We therefore hold that thes e requirements do not violate the First Amendment.
A related contention challenges the requirement that the signs and pamphlets be prepar ed or approved by the City's department of neighborhood and community
se rvices. See Ordinance §§ 12-277(d) and 12-278. The appellants claim that thes e 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 c an thus function as the equivalent of a license revocation." Appellants' Brief at 26.

To support their position, the appellants cite cases requiring procedura l safeguards in the issuance of licenses to engage in speech activities. See Freedman v. Maryland , 38 0 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 o rder can occur only after the City has served notice 4 and a n order setting forth the violations. See Ordinance § 12-281(a)(1). Th e establis hment then has forty-eight hours from the time of service either to remedy the violatio n or to request a hearing. See id. § 12-281(a)(3). A hearing request stays the City's exercise of p ower 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 e nforcement for "any violation of the 5 requirem ents or duties set out in this article requiring that at least one side of [th e booths be open ], that the surface of [the walls between booths be metal and free o f holes], and that no more than one person occupy a booth at any one time." Ordinance § 12-281(a)(1).
-6- at 802 (holding that failure to provide time lim itations within which licensor must issue lice nse to fundraiser is unconstitutional). The facts of this case, however, do no t 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 or dinance in question does not give City officials the power to revoke th e appellan ts' licenses to operate upon noncompliance with the sign and pamphle t requirements. So any delay inherent in the approval of the signs and pamphlets i s irrelevant.

Th e ordinance authorizes three methods of enforcement: administrativ e enforcement, municipal court e nforcement, 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 whic h 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 th e administrative enforcement remedy of closure. The only remaining means o f enforcement is to initiate legal proceedings in municipa l court or to apply for injunctive-7-

relief to the appropriate state court. We believe that these judicial enforcemen t
me thods 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 pr otected speech activities be taken within a specified time period, simply does no t apply in these circumstances.
The appellants ne xt argue that the provision requiring booths "be maintained in a clean an d sanitary condition" is unconstitutionally vague. Id. § 12-277(a). We will uphold this provision on a vagueness challenge unless perso ns "of common intelligence must necessarily guess at its meaning." Hynes v. May or 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 expe cted, so we look to whether "it is clear what the ordi nance 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 ho w to comply with the requirement that motion picture arcade booths be kept in a "clean and sanitary condition." Such booths a re not surgical operating rooms,

nor are they even establishments where food or drink is served. The requirement a t 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 se t forth in th e ordinance violates Missouri's constitution. Under Missouri's constitution, "private property shall not be taken or damaged for public use without jus t 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 suppo rt their contention, the appellants rely primarily on Missouri case s in volving zoning ordinances. Hoffmann v. Kinealy , 389 S.W.2d 745 (Mo. 1965) (en ban c), exemplifies this line of cases. In Hoffmann , the Missouri Supreme Court held-8-

that a newly enacted zoning ordinance, which prohibited the open storage of lumber, bui lding materials, and construction equipment, constituted a taking under Missouri's constitution

. See id. at 754-55. The court recognized the validity of "pre-existin g la wful nonconforming uses," id. at 750, and concluded that termination of such pre

existing, lawful, nonconforming uses was a taking, see id. at 754-55. Hoffman n confirmed the rule, long assumed in Missouri, see id. 748-49, 750, that a pre-existing, lawful, nonconf

orming 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

no nconforming use as "a use of land which lawfully existed prior to the enactment of

a zoning o rdinance and which is maintained after the effective date of the ordinanc e even though not in compliance with use restrictions." Misso uri Rock, Inc. v. Winholtz , 614 S.W.2d 734, 739 (Mo. Ct. App. 1981). Missouri courts expressly restrict th e
nonc onforming-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 p ermit the continuation of non-conforming uses in existenc e at the time of the enactment of the ordinance . . . ."). Further, Missour i 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 regu lations are distinct in character from building regulations . . . ."). Therefore, w e need not determine whether the appellants have established a lawful, nonconforming use because the ordina

nce 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 Missourilaw, municipal ordinances enacted pursuant to a city's general polic e 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-9-

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 Oly mpic Drive-In , the Missouri Supreme Court struck down a municipa l ordinan ce as "unreasonable, oppressive and confiscatory." Olympic Drive-In , 44 1 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 b e visible frompublic streets. The drive-in theater would have been forced to spen d $250,000 to $280,000 to comply with the ordinance. This was twice the the ater's initial inves tment, and evidence showed that the theater could not raise that much capital

. Mo reover, the court concluded that the required fencing or change of screen location would not ach ieve 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 th e ordin ance, "to satisfy the demands of the citizens that something be done about th e plai ntiff showing pictures of nudes and semi-nudes which could be seen from th e streets," and concluded that the ordinance's requirements were too sweeping. Id. at 10. The circumstances in the present case are far removed fro m those in Olympic Drive-In

.
We hold t hat the ordinance in the case at hand is reasonable. The appellant s presented no evidence regarding the cost involved in removing the doors from th e booths an d otherwise complying with the ordinance, and they likewise presented n o evidence to show the amount of any predicted loss of revenue that would result from the remov al of the doors. We also believe the ordinance is reasonably calculated t o curtail sexu al 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 on ly are patrons still able to view inside the booths whatever movies they choose, but they also may view the same movies at the-10-

appellants' establishments in a theater setting, and they may rent or purchase at th e 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 therefor e affirm the decision of the District Court.
A true copy.

Attest:

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