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95-5846



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. e du/thir dc ir c uit_1997/218Filed September 15, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95

- 5846

BEN RICH TRADING, INC.; ALEXANDER TROMBETTA

v.

CITY OF VINELAND; JOSEPH E. ROMANO, MAYOR;

MARK RUSKOSKI, President; MICHAEL I. PANTALIONE;

GARY L. S TANKER; LEA L. SHAPIRO; ROBERT G. RONE;

JOHN ZAGARI; ANTHONY BRACALL; DAVID RICCI;

STANLEY PANCO; ROBERT BLOUGH; PAUL TRIVELLINI;

JOHN FUENTES; EDWIN BERGAMO, JR.

CITY OF VINELAND,

Appellant

On Appeal From the United States District Cour t

For the District of New Jersey

(D.C. Civil Action No. 95

- cv

- 04980)

Argued July 23, 1997

BEFORE: SLOVITER, Chief Judge

and ROTH, Circuit Judges, and LUDWIG, District Judge*

(Opinion Filed: September 15, 1997)

___________________________ ______________________________________ * Hon. Edmund V. Ludwig, United States District Court for the Eastern

District of Pennsylvania, sitting by designation.

Gerald T. Ford (Argued)

Landman, Corsi, Ballaine & Ford

New ark, N.J. 07102

Attorney for Appellant

F. Michael Daily, Jr. (Argued)

Quinlan, Dunne & Daily

Merchantville, N.J. 08109

Attorney for Appellee

OPINION OF THE COURTSLOVITER, Chief Judge.

The City of Vineland appeals from a preliminary

injunction issued by the district court which (1) enjoined

the City from enforcing a municipal ordinance that

restricted the hours of operation of sexually oriented

businesses and (2) enjoined the City from e nforcing a

municipal ordinance that prohibited live entertainment in

private "conversation booths" in adult bookstores. The City

argues that the ordinances were supported by sufficient

evidence of secondary effects to satisfy the intermediate

level of scrutiny applicable to regulations of sexually

oriented businesses under City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986).

I.

A.

FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 1995, appellee Ben Rich Trading, Inc.

entered into a lease and purchase agreement for a two

story building with an adjacent 34

- space parking lot with

the intention of transforming it into an adult entertainment

center. The premises front on a state highway and there are

varied commercial businesses lo cated in the area, including

2

a restaurant/bar next door and a WaWa 24

- hour

convenience store across the highway.

The first floor of the building consisted of three large

open areas and an office; the second floor was designed as

a residential apartment with a separate outside entrance.

Previously, the premises had been used as a "Teen

Nightclub" and had been configured with a dancefloor,

lounge area and a video arcade. According to Vineland's

Zoning Ordi nance, the premises are located in a "B

- 2,

Highway Business Zone," which, at the time Ben Rich took

possession, permitted uses such as adult book stores,

indoor theaters, bars and taverns, amusement facilities

including video arcades, steam baths, and drive

- in theaters.

On May 1, 1995, Ben Rich advised Robert Blough,

Vineland's Zoning Officer, of its intention to use the

premises to exhibit live and video entertainment, as well as

for the sale of books, videos and novelties of "an adult

nature." App. at 22. On May 3, 1995, Blough replied by

letter that such an adult entertainment center constituted

a permitted use under the City's zoning regulations butthat Ben Rich would nevertheless have to acquire site plan

approval because an adult entert ainment center

represented a "change in use." App. at 25. Thereafter, Ben

Rich filed an application for site plan approval with the

Planning Board of the City of Vineland. Upon review of this

application, Blough reversed his earlier position and

infor med Ben Rich that the proposed live entertainment in

a "conversation booth" setting, whereby a patron in a booth

could observe a live performer through glass and could

communicate with the dancer through a telephone hook

up, was not a permitted use. A pp. at 27.

Blough also advised the City's Minor Site Plan and

Subdivision Committee at the hearing on Ben Rich's

application that live entertainment in conversation booths

was not a permitted use and could not receive site plan

approval. Ben Rich th en withdrew its request for

conversation booths in order to receive the Committee's

approval for the site plan, which it secured, and on August

15, 1995 it opened an adult book store with booths for the

viewing of sexually explicit videos. Meanwhile, i t appealed

Blough's decision that the proposed conversation booths

3

were an impermissible use to the City's Zoning Board of

Adjustment. Ben Rich requested that in the alternative it be

granted a variance to all ow its proposed live entertainment

in conversation booths.

The Zoning Board of Adjustment held a hearing on

August 16, 1995, but then adjourned until September 20,

1995 so that Board members could engage in additional

investigation. On August 22, 19 95, while the Zoning Board

was adjourned, the Vineland City Council enacted the two

ordinances at issue. Ordinance 95

- 55 limited the hours of

operation for sexually oriented businesses, including adult

bookstores, from 8:00 a.m. to 10:00 p.m., Mondays through

Saturdays. App. at 39. Ordinance 95

- 56 prohibited live

entertainment in private booths within adult bookstores by

amending the "conditional uses" section of the zoning

ordinance to provide:

(1) Uses within the confines of the adult bookstore are

restricted to the sale or rental of books, videos and

novelties, and on

- site rental for viewing of videos or

movies.

(2) Specifically prohibited within the confines of an

adult bookstore is live entertainment through the use

of individual or conversation booths which allow

privacy between patrons and live entertainers; privateuse of booths, screens, enclosures or other devices

which facilitate sexual a ctivity by patrons.

App. at 44.

On September 20, 1995, the Zoning Board denied Ben

Rich's appeal of the restriction on conversation booths as

well as its application for a variance, expressly basing its

decision on the passage of Ordinance 95

- 56. App. at 225

-

26.

B.

DISTRICT COURT PROCEEDINGS

On September 26, 1995, Ben Rich filed a complaint in

the District Court of New Jersey pursuant to 42 U.S.C.

4

SS 1983 and 1988, alleging that Vineland Ordin ances 95

- 55

and 95

- 56 violated its First Amendment right to exhibit and

distribute sexually explicit materials. The district court

granted a temporary restraining order on the operation of

the hours ordinance and scheduled a preliminary

injunction hea ring.

At the October 10, 1995 hearing the district court

acknowledged that under City of Renton v. Playtime

Theatres, 475 U.S. 41 (1986), a municipality is entitled to

regulate constitutionally protected but sexually explicit

speech as long as the r egulation is directed solely towards

ameliorating the purported secondary effects of such

speech and is not directed at its content. The district court

also acknowledged that, under Renton, a municipality does

not have to conduct studies of its own doc umenting the

purported secondary effects that the city hopes to control,

but it can rely on studies or evidence accumulated by other

jurisdictions in order to demonstrate the content

- neutrality

of its regulatory approach. App. at 196. Nevertheless, the

court concluded that the City of Vineland had failed to

demonstrate how the hours ordinance would remedy any

secondary effects from the adult theaters in the City itself.

In colloquy at the hearing, the court stated:

[The cases] require that there be an identifiable

secondary effect that exists reasonably under the

circumstances of this case in Vineland and not

because maybe it exists someplace else. And again I,

please, want you to understand, I'm not suggesting

that you need a study under Renton, but I do think wehave to in keeping with the Mitchell case look to the

restriction and see if it's intended to reduce the

undesirable secondary effect.

App. at 1 96. The district court's reference to "the Mitchell

case" was to this court's decision in Mitchell v. Comm'n on

Adult Entertainment Establishments, 10 F.3d 123 (3d Cir.

1993), sustaining a Delaware statute that restricted the

hours of operation of adul t entertainment centers.

At the same hearing, counsel for Vineland asked if the

court also intended to address the legality of Ordinance 95

- 56 which prohibited live entertainment in conversation

5

booths. See App. at 201

- 02. The court chose not to address

that issue at that hearing, but offered the parties five days

to submit briefs on the constitutionality of Ordinance 95

-

56. However, the court made clear that it believed the

essence of Ordinance 95

- 56 t o be a complete prohibition on

the exhibition of live entertainment in adult bookstores:

But the ordinance does appear to read a complete

prohibition, which seems to be inconsistent with

Renton from the Mitchell case [sic] that wanted to

narrowly tailor.... If I then have all the submissions, I'll

certainly try to compose a response to what we've

heard today.

App. at 202. Neither party submitted any additional

material.

On October 31, 199 5, the court entered an order

enjoining the City from enforcing the Ordinances "to the

extent that they prohibit plaintiffs from continuing the

Monday through Saturday hours of operation of 9:30 A.M.

to 1:30 A.M. consistent with [the] court's previous orders."

App. at 209. The court also enjoined the City from enforcing

Ordinance 95

- 56 "to the extent that it contains a complete

prohibition on live entertainment through the use of

individual or `conversational booths.' " App. at 210.

However, the co urt gave the City defendants leave"to

petition the court to amend this injunction at such time as

they can demonstrate a link between a reasonable

prohibition on the booths and the government's health

interest in this situation." App. at 210. Regretful ly, the

court's order did not include any written or explicit oral

findings of fact or conclusions of law, which would have

been helpful in our review of the rationale for the order

entered.On November 3, 1995, Ben Rich moved the court for an

addi tional order permitting it to "proceed with the offering

to the public of live entertainment in a `conversational

booth' setting and enjoining the Defendants from

preventing or interfering with same," app. at 212, on the

ground that the sole basis for the decision of the Zoning

Board was Ordinance 95

- 56, which the district court had

now declared unconstitutional. At the hearing on Ben

6

Rich's motion, the City argued that Ben Rich should be

required to return to the Zoning Board for a decision

whether conversation booths were a permitted use as an

Indoor Theater under its original zoning regulations,

regardless of the unenforceability of Ordinance 95

- 56, as

the Zoning Board had never addressed that issue.

The district court believed that the Zoning Board could

not constitutionally decline to classify Ben Rich's

conversation booths as a permissible use as Indoor Theater

in light of the classification of video presentations in similar

booths as Indoor Theater. The court stated:

But if it's an issue that eventually will lend itself to a

constitutional interpretation, then I think many times

the court should just try to make that interpretation. If

it eventually i s going to end up [in federal court],

there's no sense of having the delay.

. . .

I would think that without the ordinance and with the

constitutional principles in place, that there is nothing

really t o impede them to start moving forward.

App. at 278, 280.

The court reminded the City that it was free to amend its

ordinance in order to put reasonable restrictions on

conversation booths and conform with the requirements of

Renton and Mitchell. S ee, e.g., app. at 279 ("But there is the

opportunity for the City of Vineland to put sufficient

contours around the utilization of those booths that would

meet and justify the least restrictive manner of control that

would be consistent with the first amendment speech and

expressive conduct.").

The court entered two supplemental orders on December

1, 1995. The first refined the earlier order relating to the

hours ordinance and stated that "Plaintiffs' allowed hours

of operation shall be no differ ent than those of othercommercial businesses existing within the B

- 2 business

zone." App. at 296. The second order permitted Ben Rich to

"herewith proceed with the offering of live entertainment in

a conversational booth setting as originally requeste d by

them in a site plan submitted and duly filed with the

7

Planning Board of the City of Vineland," app. at 298, but

contained the proviso that:

[T]he rulings contained herein shall in no way affect

the Defendants' rights to enact legislation which they

deem appropriate in order to protect the public health

and welfare from adverse secondary effects of an adult

oriented business. Plaintiffs by proceeding under the

terms of this Order do so at the peril of being subjected

in the future to such appropriate and lawful

regulations as the City of Vineland may enact and may

apply to the Plaintiffs in accordance with

Co nstitutional and State Law.

App. at 298. The City appeals from the November 2, 1995

preliminary injunction order and from the December 1

orders.

II.

It is surprising that although the underlying orders on

appeal are preliminary injunctions, nei ther party discusses

the standard for a preliminary injunction nor is there any

reference to that standard in the district court's orders or

discussion. We have found no stipulation in the record by

the parties that consolidated the preliminary injunct ion

hearing with a trial on the merits, as permitted under Rule

65(a)(2) of the Federal Rules of Civil Procedure, and we are

not free to disregard the procedural posture in which the

orders are presented on appeal. Thus, we review the district

court's grant of a preliminary injunction to ascertain

whether plaintiff made the necessary showing that it is

likely to prevail on the merits, will suffer irreparable injury

if injunctive relief is not granted, and that the injunction is

generally in the pub lic interest. See Bradley v. Pittsburgh

Bd. Of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).

III.

Speech that is sexually explicit but not "obscene," either

in the form of film, text, or live presentation, must be

accorded First Amendment protection. See Schad v.

Borough of Mount Ephraim, 452 U.S. 61, 65

- 66 (1981);8

Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3d Cir.

1997) (en banc). Any regulation of such sexually explicit

speech that is aimed prim arily at suppressing the content

of the speech is subject to strict scrutiny by the court and,

unless justified by a compelling governmental interest, is

presumptively unconstitutional. See Renton, 475 U.S. at 46.

However, if a regulation's primary pur pose is to ameliorate

the socially adverse secondary effects of speech

- related

activity, the regulation is deemed content

- neutral, and is

accordingly measured by intermediate scrutiny, under the

Court's traditional time, place, manner doctrine. See Tur ner

Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642

(1994); Phillips, 107 F.3d at 171.

Vineland's ordinances at issue are purportedly directed at

curbing the secondary effects of Ben Rich's speech related

activity. Time, place, manner regulat ions of protected

speech are valid if:

(1) they are justified without reference to the content of

the regulated speech;

(2) they are narrowly tailored to serve a significant or

substantial government interest; a nd

(3) they leave open ample alternative channels for

communication.

Mitchell, 10 F.3d at 130.

A.

THE CLOSING HOURS ORDINANCE

Ordinance 95

- 55 provides:

A sexually oriented business as defined by N.J.S.

2C:33

- 12.1 2(a) and (b) including adult book stores

may not be open for business before 8:00 a.m. or after

10 p.m., Mondays through Saturdays or on any

Sunday or legal holiday.

App. at 65.

"The principal inquiry in det ermining content neutrality,

in speech cases generally and in time, place, manner cases

9in particular, is whether the government has adopted a

regulation of speech because of disagreement with the

message it c onveys." Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). Despite Ben Rich's protests, there

was no evidence at the hearing that the City of Vineland

specifically targeted Ben Rich's establishment or that "the

predominate purpose for enacting the ordinances was to

suppress constitutionally protected forms of expression."

Brief of Appellee at 13. To the contrary, the City attempts

to justify the regulation "without reference to the content of

the regulated speech," Renton, 475 U.S. at 48, and i ts

burden for proving such content neutrality is not heavy.

According to the Court in Renton, if an ordinance does "not

ban adult theaters altogether" but merely bans them from

certain parts of the city, it is properly analyzed as a time,

place, manne r restriction. Id. at 41.

Nevertheless, under this framework the City must still

have presented evidence of "incidental adverse social effect

that provides the important governmental interest

justifying" the content neutral regulation and must be abl e

to "articulate and support its argument with a reasoned

and substantial basis demonstrating the link between the

regulation and the asserted governmental interest." Phillips,

107 F.3d at 173 (internal quotations omitted).

Ben Rich contends that, f ar from justifying the content

neutrality of the ordinance on a reasoned basis, Vineland

produced no evidence that it considered secondary effects

of adult establishments at the time it passed the

ordinances. However, in our recent en banc decision in

Phillips, which was decided after the district court entered

the orders on appeal, we rejected the argument that a

municipality's justification must be apparent "at the time of

adoption," or "before taking [legislative] action." Phillips,

107 F.3d at 178. Although we reiterated the requirement

that a municipality "shoulder the burden of building an

evidentiary record that would support a finding that . . .

[governmental] interests would be jeopardized in the

absence of an ordinance," id. at 173, we also held that such

a record could be established in the court after legislation

is passed and challenged, id. at 178.

We stated that:

10

There is a significant difference between the

requi rement that there be a factual basis for a

legislative judgment presented in court when that

judgment is challenged and a requirement that such afactual basis have been submitted to the legislative

body prior to the enactment of the legislative measure.

We have always required the former; we have never

required the latter.

Id. Thus, in Phillips we refused to hold unconstitutional a

borough's ordinance that zoned out the plaintiff 's adult

boo kstore despite the fact that the borough had not made

a pre

- enactment record before the legislature regarding

secondary effects and presented no such evidence in the

district court. Instead, we remanded the case to the district

court in order to give t he borough an opportunity to develop

such evidence. See Phillips, 107 F.3d at 181.

In this case, because Vineland did come forward as

required by Phillips "with a required showing in the

courtroom once the challenge [was] raised," id. at 178, we

exa mine whether its showing was adequate. In the district

court, Vineland relied both on the evidence presented to the

New Jersey legislature in connection with its consideration

and subsequent passage of a state statute on July 5, 1995

dealing with almos t identical issues, and on the record

presented in support of the Delaware statute that we

upheld in Mitchell.

It placed particular emphasis on the New Jersey record.

Before enactment of the New Jersey statute, which

authorized municipalities to res trict the hours of operation

of adult oriented businesses and made it a crime to "own[ ]

or operate[ ] a sexually oriented business which offers for

public use booths, screens, enclosures, or other devices

which facilitate sexual activity by patrons," see N.J.S.A. 2C:

33

- 12.2, the New Jersey legislature had heard testimony

from various witnesses who described how adult

establishments contribute to crime and litter in

surrounding areas and how private booths within these

stores encourage people to h ave unprotected sex with

anonymous partners and thereby facilitate the spread of

sexually transmitted diseases, particularly AIDS. See app.

at 79 (Testimony of John Tumulty, Chief of Legislative

11

Section of Ne w Jersey Office of Legislative Services, to

Senate Judiciary Committee); app. at 80

- 100 (Testimony

and Exhibits by Debbie Crook, President of Atlantic County

Branch of American Family Association of New Jersey, to

Senate Judiciary Committee); app. at 1 10 (Testimony of

Susan Grant, State Director of Concerned Women of

America, to Assembly Judiciary Committee); app. at 116

- 19

(Testimony of Larry Etzweiler, Deputy Attorney General of

New Jersey, to Assembly Judiciary Committee).Testimony was presen ted to the relevant New Jersey

legislative committees that a similar statute enacted by

Delaware that prohibited operation of adult establishments

before 10 a.m. and after 10 p.m., Mondays through

Saturdays, and all day on Sundays and legal holidays, h ad

been upheld against constitutional challenge by this court

in Mitchell. Larry Etzweiler, New Jersey Deputy Attorney

General, appeared before the Judiciary, Law and Public

Safety Committee of the New Jersey State Assembly and

told the members of tha t Committee that in their

considerations of the pending bill they

could deem the hours

- of

- operation restriction as

advancing the goal of affording neighbors peace and

quiet at least during part of the day, and of

diminishing the "noise, excessive parking, and the

presence of discarded sexually oriented material on

residential lawns that adult entertainment

establishments cause."

App. at 118 (quoting Mitchell, 10 F.3d at 136).

In this case, Etzweiler filed an affidavit in the district

court describing some of the evidence that had been

presented to the New Jersey legislative committees, and he

stated that the "Committee members understood that

patrons are more likely to discard sexually oriented

materials on residential lawns during the cover of night

than during the openness of broad daylight." App. at 118.

In Mitchell, we had found such a justification to be both

content neutral and substantial. The studies and legislative

record in support of the hours regulation for adult theaters

that was presented in Mitchell and other courts, see, e.g.,

Star Satellite v. City of Biloxi, 779 F.2d 1074, 1077

- 78 (5th

12

Cir. 1986), may have bee n more extensive than those

provided by either Vineland or New Jersey, but we cannot

hold that it was impermissible for Vineland to rely on the

experiences, studies and conclusions of other jurisdictions

about the secondary effects of adult theaters. S ee Renton,

475 U.S. at 51

- 52 ("The First Amendment does not require

a city, before enacting such an ordinance, to conduct new

studies or produce evidence independent of that already

generated by other cities, so long as whatever evidence the

city reli es upon is reasonably believed to be relevant to the

problem that the city addresses.")

Notwithstanding the district court's acknowledgment that

Vineland was entitled to rely on studies and experiencesfrom other jurisdictions in justifying their tim e, place,

manner regulation, the court apparently believed that

Vineland was required to specify a "linkage" between its

own experiences and those of the jurisdictions producing

the studies upon which it intended to rely. App. at 171. The

court noted that Vineland did not show, for example, that

the adult bookstores were near residential areas susceptible

to late

- night litter or that there is a parking problem of the

kind that may have existed in Delaware. However, the

relevant cases do not impose a requirement that Vineland

lay out in specific detail how its situation is sufficiently

similar to Delaware's or New Jersey's in order to make their

studies relevant.

As Vineland is a municipality within New Jersey, the

studies presented to the New Jersey legislature could

"reasonably [be] believed to be relevant to the problem"

Vineland was facing. See Phillips, 107 F.3d at 174. The

same can be said of the relevance of the Delaware studies.

The various jurisdictions are not so geographically di stant

nor demographically distinct as to suggest that they do not

share comparable urban problems, and Ben Rich has not

argued otherwise.

The district court was also troubled by the apparent

underinclusiveness of Vineland's ordinance, noting that

n otwithstanding Vineland's assertion that it needed the

hours ordinance to limit parking and reduce the

"discard[ing] [of] sexually oriented material on residential

lawns," app. at 118, Vineland did not attempt to limit the

13

hours of the nearby WaWa and bar/restaurant or other

stores selling adult magazines, which presumably also

produce noise and parking problems, see app. at 120

- 124.

The district court's concern does not warrant striking

down the Vinelan d ordinance. As Vineland points out on

appeal, on its face Ordinance 95

- 55 covers any "sexually

oriented businesses" and thus may be enforceable against

the other stores in the City that sell adult magazines, an

issue we do not decide. More important, we have held that

a state or municipality may regulate hours of adult

businesses differently than other businesses without

raising a strong inference of discrimination based on

content. We stated in Mitchell: "The content of the sexually

explicit spee ch and expressive activity that businesses like

Adult Books purvey permits legislative bodies to put adult

entertainment establishments in a different category than

other entertainment establishments." 10 F.3d at 132. We

also stated that the state "nee d only show that adultentertainment establishments as a class cause the

unwanted secondary effects the statute regulates." Id. at

138; see also Renton, 475 U.S. at 49 (" `[G]overnment can

tailor its reaction to different types of speech according to

the degree to which its special and overriding interests are

implicated.' " (quoting Young v. American Mini Theatres, 427

U.S. 50, 82 n.6 (1976) (Powell, J., concurring))).

We thus conclude that Vineland produced the required

showing of the content n eutrality of its closing hours

ordinance and the substantiality of its interest in

ameliorating the secondary effects of late

- night litter and

parking related to adult book stores.

To sustain the validity of the ordinance against First

Amendment cha llenge, we must also decide if the proffered

regulation is narrowly tailored. The government bears the

burden of showing that the remedy it has adopted does not

"burden substantially more speech than is necessary to

further the government's legitimate interests." Ward, 491

U.S. at 799. Vineland points out that its ordinance is no

more restrictive than the Delaware hours restriction upheld

by this court in Mitchell and, in fact, allows businesses to

open two hours earlier. Moreover, under the fairly lenient

standard for time, place, manner restrictions, "[t]he city

14

must be allowed a reasonable opportunity to experiment

with solutions to admittedly serious problems." Renton, 475

U.S. at 52 (internal quota tions omitted).

Finally, with respect to the requirement that the

ordinance leave open adequate alternative channels of

communication, we need only look to our dismissal in

Mitchell of the argument that an hours restriction fails this

test "because it prohibits adult entertainment during the

time of greatest customer demand" (late at night). As we

stated in that case, "the [statute] allows those who choose

to hear, view, or participate publicly in sexually explicit

expressive activity more than t hirty

- six hundred hours per

year to do so. We think the Constitution requires no more."

See Mitchell, 10 F.3d at 139.

We assume that underlying its preliminary injunction

was the district court's conclusion that Ben Rich had

shown a probability of s uccess on the merits. We conclude,

to the contrary, that based on the evidence, Ordinance 95

- 55 is a permissible time, place, manner restriction. It

follows that we need not reach the other factors to be

considered in preliminary injunction review, as this

preliminary injunction cannot stand.B.

CONVERSATION BOOTHS ORDINANCE

The language of subsection (1) of Vineland Ordinance 95

- 56, which is a land use ordinance, prohibits any uses in

adult bookstores except the "sale or rental of books, videos,

and novelties, and on

- site rental for viewing of videos and

movies." App. at 44. On its face, this appears to effect a

complete prohibition of all live dancing, nude or otherwise,

in adult bookstores, and as such would be of questionable

valid ity under Schad v. Borough of Mt. Ephraim, 452 U.S.

61 (1981). Although the court's Order to Show Cause

required the City to show cause why the court "should not

issue a preliminary injunction enjoining [the] defendants

from enforcing City of Vineland ordinances 95

- 55 and 95

- 56," app. at 53, and presumably therefore the entire

ordinance was at issue, the preliminary injunction itself

15

only enjoins the City from enforcing 95

- 56 "to the extent

that it contai ns a complete prohibition on live

entertainment through the use of individual or

`conversational booths,' " app. at 210 (emphasis added). This

is the subject of subsection (2), which was particularly

referenced in the Order to Show Cause. Therefore, on this

appeal from that preliminary injunction, we need not

consider the reach of subsection (1) because its validity was

not decided by the district court. We limit our consideration

to the issue that most interests the parties

- the injunction

as to the conversation booths regulation.

Vineland argues that the district court entered its

November 2, 1995 order preliminarily enjoining

enforcement of Ordinance 95

- 56, "to the extent that it

contains a complete prohibition on live entertainment

throu gh the use of individual or conversation booths," app.

at 210, under the incorrect belief that subsection (2) of the

Ordinance effected a complete prohibition on the offering of

live entertainment in conversation booths.

Vineland has presented a pers uasive case that there is a

substantial governmental interest in preventing anonymous

sex in conversation booths and in controlling the spread of

sexually transmitted diseases. Vineland presented evidence

to the district court, taken from the legislati ve history of the

New Jersey statute, that in booths in adult bookstores,

patrons have unprotected sex with anonymous partners

either in the same booth or through an opening to an

adjacent booth, or masturbate, and that such conductpromotes the sprea d of AIDS. See, e.g. , app. at 80

- 100

(Testimony of Debbie Crook). Vineland also presented

legislative history from the Delaware statute regarding

similar secondary effects of adult booths, which the court

in Mitchell found sufficient to withstand Firs t Amendment

objections. See app. at 101

- 08.

The substantial interest in controlling anonymous sex in

adult entertainment establishments is adequately

documented by Vineland. See Chez Sez VIII v. Poritz, No.

95

- 3349 (N.J. Super. Ct., Law Div. Aug. 31 , 1995)

("[h]alting the spread of [AIDS] and other communicable

diseases by reducing the incidence of promiscuous,

unprotected sex undoubtedly constitutes a compelling state

16

interest"), rev'd on other grounds , 688 A.2d 119 (N.J. App.

Div. 1997).

This does not mean that a complete ban on live

entertainment in conversation booths in adult bookstores

would meet the requirement of being narrowly tailored to

achieve this end. In Mitchell, we distinguished th e Delaware

statute that required that booths in adult bookstores be

open on at least one side, which we upheld, from one that

imposed a total ban on such booths, noting: "Delaware's

open

- booth amendment does not ban films or other

entertainment. . . . It is not directed at limiting the content

of films or performances patrons can view from within the

booths, but rather at curbing the undesirable incidental

effects that are perceived to result from the use of closed

booths in adult entertainment est ablishments." 10 F.3d at

140. Indeed, virtually all ordinances that courts have

upheld which have sought to reduce the effects of

anonymous sex in adult entertainment establishments have

imposed an "open booth" requirement. See Mitchell, 10 F.3d

at 12 8 (open on one side to a public room); Bamon Corp. v.

City of Dayton, 923 F.2d 470 (6th Cir. 1991) (removal of

doors); Doe v. City of Minneapolis, 898 F.2d 612, 620 (8th

Cir. 1990) (open on one side); Berg v. Health and Hospital

Corp., 865 F.2d 797, 80 3 (7th Cir. 1989) (open on one side

to a public room; "does not bar people from watching films

or entertainment in individual enclosures"); Wall

Distributors, Inc. v. City of Newport News, 782 F.2d 1165,

1167 (4th Cir. 1986) (visible from continuous ai sle).

Subsection (2) of Ordinance 95

- 56 only prohibits the use

of conversation booths if they allow for privacy between

dancer and patron or if the booths would "facilitate sexual

activity." We construe that conditional restriction as

tantamount to an "open booth" requirement since an ownercan satisfy the non

- private condition by leaving at least one

side of the booth open to the public area. See Mitchell, 10

F.3d at 139

- 40 (Delaware statute requires such booths to

have "at least one side open t o an adjacent public room so

that the area inside is visible to persons in adjacent public

rooms").

This is the construction given by the New Jersey

Appellate Division in upholding the New Jersey statute that

17

prohibits conversation booths that "facilitate sexual

activity," notwithstanding its failure to explicitly require

open booths. See Chez Vez VIII, Inc. v. Poritz, 688 A.2d 119,

122 (N.J. Super. 1997). The court concluded that if a booth

is visible to a public room it would not be conducive to

sexual activity, and thus the "statute embraces all the

physical requirements of other jurisdictions [that impose

open booth requirements]." Id. at 128. Inasmuch as

Vineland's Ordinance 95

- 56 contains langu age similar to

that in the New Jersey statute, it is reasonable for us to

construe it in the same way as imposing an open booth

requirement.

Following the district court's December 1, 1995 order

inviting the City to enact additional regulations to c ontrol

secondary effects within constitutional constraints, on April

23, 1996, Vineland passed Ordinance 96

- 32 entitled,"An

Ordinance of the City of Vineland Relating to Sexually

Contagious Diseases." See Ben Rich Trading, Inc. v. City of

Vineland, No . 96

- cv

- 2496, slip op. at 3 (D.N.J. Jan. 10,

1997). The Ordinance imposes a more explicit open booth

requirement by mandating that booths in adult theaters

have " `at least one side open to an adjacent public room so

that the area inside is visible to persons in the adjacent

public room.' "1 Id. at 3

- 4 (quoting City of Vineland

_________________________________________________________________

1. It provides in pertinent part:

No person shall own, operate, manage, rent, lease or exercise

control

of any commercial building, structure, premises or portion or

part

thereof, which contains:

(1) Partition between subdivisions of a room, portion or part of

a

building, structure or premises having an ape rture which is

designed or constructed to facilitate sexual activity between

personson either side of the petition (sic).

(2) Booths, stalls, or partitioned portions of a room, or

individual

rooms, used for the v iewing of motion pictures or other forms of

entertainment, having doors, curtains or portal partitions,

unless

such booths, stalls, partitioned portions of a room, or

individual

rooms so used shall have at least one side open to an adjacent

public room so that the area inside is visible to persons in the

adjacent public room.

Ben Rich, No. 96

- cv

- 2496, at 3

- 4 (quoting City of Vineland Ordinance 96

-

32).

18

Ordinan ce 96

- 32). The district court considering that

Ordinance upheld it against a constitutional challenge by

Ben Rich, after concluding that the City adequately

documented, prior to its enactment, the desired goal of

preventing anonymous sex in adult theat ers and the

corresponding spread of sexually transmitted diseases. See

id. at 13.

Ben Rich did not appeal that judgment and, indeed,

argues that the new ordinance is substantially more

reasonable and narrowly tailored than Ordinance 95

- 56.

However, Ordinance 96

- 32 is not materially different in

substance than subsection (2) of Ordinance 95

- 56 as we

have construed it and the parties, therefore, do not appear

to differ on their understanding of the permissible scope of

Vineland's regulatory author ity. In any event, we conclude

that the district court erred in holding subsection (2) of

Ordinance 95

- 56 to infringe on Ben Rich's First

Amendment rights and in granting a preliminary injunction

enjoining its operation.2

IV.

For the reasons stat ed above, we will reverse the

preliminary injunction order entered November 5, 1995 and

the orders of December 1, 1995.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_____________________ ____________________________________________2. In light of our holding, we need not reach Vineland's argument that

the district court should not have issued the December 1, 1995 order

permitting Ben Rich to proceed with the offering of conversation b ooths

without requiring Ben Rich to return to the Zoning Board for a decision

as to whether conversation booths are a permitted use as an Indoor

Theatre. Should the issue arise when this case returns to the district

court, we note that the district cou rt should give proper consideration to

Vineland's interest in having its administrative procedures exhausted

through appeal to the Zoning Board or a request for a variance.

19