Warren E. Burger: We’ll hear arguments first this morning in number 75-312 Young, the Mayor of Detroit against American Mini Theatres. Mrs. Reilly, you may proceed whenever you’re ready.
Maureen Pulte Reilly: Mr. Chief Justice and may it please the Court. For the record, I am Maureen Reilly, Assistant Corporation Counsel for the City of Detroit, representing Coleman A. Young, Mayor of Detroit, and the department heads who petitioners in this matter. The Court is asked this morning to review a decision of the Sixth Circuit Court of Appeals which by two to one decision invalidated Amendments to the City’s Zoning and Licensing Laws regulating adult businesses. This case is now before the Court approximately eight years after the first -- the problem first became apparent in the City of Detroit. In 1969, there were only two of these new uses, land uses within the city -- two adult bookstores, two adult theaters and relatively few topless go-go bars. Within a period of three years, that number had changed so that there were 18 adult theaters, 21 adult bookstores and 70 topless bars. Reports from the Detroit Police Department indicated that these businesses had clustered together along the main arteries of the City of Detroit and were immediately adjacent to or backed up to neighborhoods, residential neighborhoods which were zoned residential. Based on the complaints received by a number of families, residents and businessmen whose businesses served those families, the Mayor recommended changes in the City’s Zoning and Licensing Laws. The changes that were adopted were these: The adult businesses were now designated as regulated uses. These were uses which had been determined by the council to be businesses, which had a deleterious effect on the surrounding neighborhood, which caused a downgrading in property values and the deterioration of the neighborhood generally.
Potter Stewart: The category of regulated uses had been one that was part of the Detroit zoning pattern for many years, hasn’t it been?
Maureen Pulte Reilly: Yes, Your Honor. The idea, the concept of regulated uses so far as I know was a new concept of inverse zoning adopted by the city in 1962. The city found out that certain uses when clustered together caused the downgrading of a neighborhood. The uses --
Potter Stewart: Pool halls and shoeshine parlors and --
Maureen Pulte Reilly: Motels, bars, those businesses which cater to transient- type patrons --
Potter Stewart: As contrast with the neighborhood patronage?
Maureen Pulte Reilly: That’s right, Your Honor. It seemed only proper that the adult businesses be included in the regulated use category because they follow the same pattern. They cluster together, they drew patrons who are not members of the immediate neighborhood but from the surrounding community and had operational characteristics which set them apart from other types of theaters and bookstores. These theaters and bookstores which offered a substantial portion of their stock and trade or they films were sexually stimulating on the spot. It was not like a drugstore that would offer pill and you go home and five hours later you feel sexually stimulated, whether you walked in to the theater, and watched the film on the screen or you walked in to the bookstore and review the material there, the immediate reaction was sexual stimulation. I think this Court can almost take judicial notice of that. When these persons left the store not only the residents were aware of how they may have been sexually stimulated but prostitutes were aware of it. And prostitutes began coming into these areas. It’s a matter of record in the City of Detroit that in these areas where the adult businesses clustered, so-called massage parlors opened. We have padlocked 12 massage parlors within the last few years, all of them in the area of the adult businesses. I called the massage parlors but in fact they were fronts for houses of prostitution. This is one of the adverse effects which is caused by the adult businesses particularly when they cluster together. And this is one of the adverse effects that the families are concerned about when they send the women and the children and some of the men who are concerned to the business area which includes these adult businesses. In 1972, when we passed the ordinances, there was no immediate reaction. The people generally seemed to favor the ordinances. Early in 1973, we had our first test of the ordinances. The respondents in this case, the American Mini Theatres Inc. and Nortown Theatre Inc. both opened adult theaters in the City of Detroit in violation of the city’s zoning regulations. Both were within 1000 feet of two other regulated uses. In fact, the Nortown was within 1000 feet, of I believe, seven other regulated uses; neither adult business, the respondents -- neither of the respondents sought to obtain a waiver by the neighboring community. Now I recognize that the provision in the ordinance, in the zoning ordinance requiring the consent of 51% of the persons living or doing business within 500 feet of the location of the adult business is not directly before the Court today. But I submit to Your Honors that indirectly, the provision is before the Court. If this Court accepts the decision of the Sixth Circuit Court of Appeals, that the city may not regulate adult businesses, because by definition, it refers to the content of the material disseminated therein, then all of the city’s regulations dealing with adult businesses will be wiped out.
Byron R. White: That provision that you -- that policy is not directly before that Court, and was invalidated by the District Court and you took no appeals, is that it?
Maureen Pulte Reilly: We took no appeal, Your Honor. We amended the ordinance to correct the deficiency, pouring it out by the trial court.
Potter Stewart: Yes. And that was -- later after this, after this judgment -- after the District Court’s judgment?
Maureen Pulte Reilly: That is correct, Your Honor. When I say that that provision is indirectly before the court, I say that because it includes the same definition and would be wiped out, if the court refuse to allow the provision that is directly before the Court --
Potter Stewart: Before the Court of Appeals, in other words, a fortiori this, the other one would be invalidated in your submission?
Maureen Pulte Reilly: That is correct Your Honor, the other point I wish to make is that this provision was needed by council and considered by council because it took into consideration the aspect of protecting the families, the youth in the neighborhood. And that’s why I ask this Court not to ignore it because the package was presented to council as one package to accomplish two ends, two avoid clustering in the neighborhoods in the business area that served the neighborhood, and to ensure the businessman in the zoned business district and the residents that they would continue to have a voice in the kind of neighborhood that they lived in, and to ensure their commitment to the neighborhood. And this provision, the 51 Consent provision has to be at least considered by the Court in the total picture that we’re trying to present to the Court today. The respondents in this matter, the two adult theaters, who by the way admit that they are adult theaters in their complaint in the federal district court and the state unequivocally that no minor were permitted, brought the suit in the federal district court contending that their constitutional rights under the First and Fourteenth Amendment were being violated. I’m sure this Court is aware that the District Court reversed the rule that provision relating to the 51% consent was ruled unconstitutional because the court said it was too restrictive to accomplish the legitimate interest sought to be accomplished by the city. The reason being that the ordinance dealt with a particular residential unit when the court said, we had shown that we were attempting to protect the neighborhood and obviously a single residential unit is not a neighborhood. So that ordinance was stricken because it was more restrictive that necessary to accomplish our purpose. The other provision of the zoning law relating to the 1000-foot restriction was upheld as being a legitimate way of protecting the city’s interest, in allowing the neighborhoods to remain stable and to protect them in providing an atmosphere in which the neighborhood and the business people would continue to live in the neighborhood and --
Speaker: Mrs. Reilly, does the amended ordinance now within 500 feet of a residentially zoned district continue that waiver, provision of 51%?
Maureen Pulte Reilly: If I understand you correctly Your Honor, you are asking that --
Speaker: Because as I understand, the initial ordinance had -- it could not be located within 500 feet of a residential unit unless the provision was waived by the consent of some 51% of the persons living or doing business within 500 feet.
Maureen Pulte Reilly: Correct.
Speaker: I have amended it to really can’t be within the 500 feet of a residentially zoned district.
Maureen Pulte Reilly: That’s correct.
Speaker: But may there also be the waiver by consent of 51%?
Maureen Pulte Reilly: Yes Your Honor, there is the waiver. Both provisions may be waived. The 1000-foot provision may be waived by the -- what was the City Planning Commission under our new organization. It’s a different department, by the waiver still is allowed. And the 51% consent waiver is still continued under the 500-foot restriction.
Speaker: Mrs. Reilly, excuse me.
Maureen Pulte Reilly: Well at least it was Ayrie [Laughter]
Speaker: Mrs. Reilly, --
Maureen Pulte Reilly: Yes.
Speaker: -- do you characterize this case as a First Amendment case or something else?
Maureen Pulte Reilly: I would have to characterize it as a First Amendment case because of the issues raised. It is the petitioners’ position however that the case of U.S. versus O’Brien would be controlling and we are asking this Court not to apply an absolutist viewpoint on First Amendment rights to this case.
Speaker: Are you trying to bring in some place exceptions?
Maureen Pulte Reilly: Yes, Your Honor, it’s our position that even though we look to the content of the material to define the type of business, which is causing the deleterious effects, the regulations are not directed toward the content of the material. They are directed towards the location of commercial operations in order to avoid clustering and the adverse effects which results from a clustering and to avoid locating these kinds of businesses in neighborhoods where we are concerned about family values. So, in this sense, I’m saying, yes First Amendment must be considered.
Byron R. White: Could I ask you one other question now that you’re interrupted. On a 1000-foot part of the ordinance, I take it, it means that the entrepreneur must know not only what he is doing he has to know what other people within that radius are doing. He has to determine that they are regulated uses before he can undertake operations, is that correct?
Maureen Pulte Reilly: That is correct Your Honor, but it’s a simple matter of going to the Community and Economic Development Department in the City of Detroit. And filing an application or stating where he wishes to locate and he will be advised by that department of any other regulated uses within 1000 feet of the proposed location.
Byron R. White: I suppose that even without regulation that these kinds of establishments would have to have to have license of some kind of --
Maureen Pulte Reilly: Your Honor, the Class “D” cabarets are licensed both by the state and by the city. Motion pictures theaters have traditionally been licensed within the City of Detroit and adult theaters are subject to the same licensing provisions as the non-adult theaters. Bookstores have not traditionally been licensed in the city and the adult bookstores are not licensed, so --
Warren E. Burger: Is there any occupancy permit or must they go to the city government for any purpose at all or do they just go and open the bookstore?
Maureen Pulte Reilly: No, the bookstore, like any other commercial operation must have a certificate of occupancy which is required in order to check out the health regulations. Going back to one of the points raised by one of the Justices, the question of whether or not First Amendment rights, if this is a First Amendment case, I say yes, but I am asking on behalf of the petitioners that this Court apply the traditional balancing of interest test to the case at the Bar. In many cases decided by this Court recently, the Court has looked to the content of the material. I get the impression from the Fort Dix case that was announced today, that the Court said, it is political material, but under the circumstances considering the interest of the state in protecting the military atmosphere in a camp devoted entirely to military purposes and balancing that with the interest of the person who seek to disseminate their political views. The balancing results in a favorable position on behalf of the state, that the state’s interest is more important under this situation. This balancing of interest has been applied in the Ginsberg versus New York case where the Court said, “Material may not be obscene as to adults but may be regulated as to minors,” specific material dealing with sexual conduct if appealing to the prurient interest of the minors, it may be separated and regulated, even though it is not obscene and cannot be totally prohibited. The material which we are discussing in the case at Bar in specifically defined and relates to specific sexual conduct. The definitions are quite explicit. In fact, when the ordinance was presented to city council, our council president asked, if it was permissible to discuss it at the table considering our anti-pornography ordinances. We are dealing with a definition including specific sexual conduct and specific sexual areas of the body, not general ideas relating to feelings, political, social, economic, so on. The definitions are clearly tied into specific sexual conduct in anatomical areas.
William H. Rehnquist: But concededly I take it, Mrs. Reilly, some of the material sold would not be barred or could not be barred by the state under the Miller case and the Paris Adult theater. That you can’t call this simply of the City of Detroit’s effort to deal with something could be thought to be obscene?
Maureen Pulte Reilly: That is correct, Your Honor We are not implying that the material is obscene because we recognize this Court’s decision that no material is technically pornographic until it has been found to be so by a judicial adversary hearing. The problem is, that there is a great amount of material which may or may not be obscene, which maybe hard core, soft core or whatever, but it is all sexually stimulating and it all -- if that type of material is offered in a business we have the adverse effects existing from these types of businesses whether or not the material is determined to be obscene legally.
William H. Rehnquist: Well, don’t you think that your case would be in a somewhat weaker position if the Detroit City Council simply said, “We don’t like this kind of material, and so we’re going to limit the number of outlets that is put it straight on a straight content basis,” rather than as I understand, they did say, “We don’t like the consequences that come in the way of places that sell this material.”
Maureen Pulte Reilly: Yes, Your Honor. I think that’s the key to this case that we are not saying the material itself is offensive. We are saying that the operation of these types of businesses causes adverse effects which infringe upon the rights of the neighboring citizens whether they be residents or businessmen. If we said only the material is offensive, we would have no right to prohibit the sale or dissemination of that material without a judicial adversary hearing because this Court in Miller rule that only obscene material may be directly prohibited, and then only after a judicial adversary hearing.
Potter Stewart: Can I ask you this Mrs. Reilly, is there any claim or any showing in this case that the effect of this zoning ordinance is ultimately to limit -- put a limit on the absolute number of these theaters and bookstores in the City of Detroit?
Maureen Pulte Reilly: No Your Honor --
Potter Stewart: I know the purpose is dispersal.
Maureen Pulte Reilly: Yes.
Potter Stewart: But is there any claim that the effect is to, actually limit the number of them in the city?
Maureen Pulte Reilly: I do not recall that that claim has been made at any time. The claim has been made that we don’t know where to locate and I said at the District Court level, I wasn’t about to point out the places where they might locate. But the zoning law is written in such a way that they may locate anywhere where similar uses may locate in business zoned districts if they’re not within a thousand feet of two other regulated uses.
Potter Stewart: Right but my question was, whether the effect was to make this ordinance tantamount to the one that my brother Rehnquist hypothesized. I put an absolute limit on the number of these two kinds of establishments, there is a --
Maureen Pulte Reilly: There is no absolute limit. No sealing on the number of --
Potter Stewart: No. I know there’s no ceiling in words in the ordinance, but my question was whether the -- there’s any claim that that was -- in fact what the ordinance succeeded in doing.
Maureen Pulte Reilly: I do not believe that claim was made at any point.
Potter Stewart: No, perhaps it’s going to be made.
Maureen Pulte Reilly: It may be made now, that’s why I was carefully answering that.
Lewis F. Powell, Jr.: Mrs. Reilly.
Maureen Pulte Reilly: Yes?
Lewis F. Powell, Jr.: Are there adult businesses regulated exactly in the same way that some of the other restricted uses are regulated such as bars and motels and pawnshops and the like?
Maureen Pulte Reilly: Yes, Your Honor. In this way, all the regulated uses are subject to the 1000-foot restriction. Public entertainments, many of the public entertainments in the City of Detroit are also subject to the 500-foot restriction.
Lewis F. Powell, Jr.: But in terms of the 1000-foot restriction, there is no distinction made in terms of location?
Maureen Pulte Reilly: In terms of location, no, except that I have to point out that the adult businesses are now subject our amended ordinance to the 51% consent provision that the adult businesses may not locate within 500 feet of a residentially zoned district. The other regulated uses --
Lewis F. Powell, Jr.: That is not before us, so is it?
Maureen Pulte Reilly: No, well -- you’re asking if they’re being treated the same.
Lewis F. Powell, Jr.: Yes.
Maureen Pulte Reilly: And I’m saying the barrens under a different law are also subject to that 1000-foot provision. I’m sorry the 51% consent provision. All the regulated uses are subject to the 1000-foot provision. The additional requirement that they not locate within 500 feet of a residentially-zoned district applies only to bars and the adult businesses with the regulated --
Potter Stewart: Waived? Mrs. Reilly, the 1000-foot can’t be waived?
Maureen Pulte Reilly: Yes, it can be waived.
Potter Stewart: You can both?
Maureen Pulte Reilly: By the successor the City Planning Commission upon the showing of certain facts basically that it will not adversely affect the neighborhood.
Potter Stewart: Mr. Reilly, the waiver of the 51% waiver provision, does that apply to the 1000-foot as well as the 500 feet residential.
Maureen Pulte Reilly: No. Let me briefly explain it to clarify it. The amendments to the zoning ordinance involved two provisions relating to adult businesses. The adult businesses were categorized as regulated uses. All regulated uses are subject to the 1000-foot provision.
Potter Stewart: And is that waivable?
Maureen Pulte Reilly: That is it may be waived by the City Planning Commission upon us showing --
Potter Stewart: --by the immediate residents?
Maureen Pulte Reilly: No, that is a separate restriction which only applies to bars, adult businesses which we consider to be entertainment and certain other types of entertainment in the city. Those are listed in Section 5-2-1 in Ordinance 743 (g). So, --
Potter Stewart: Now in fact it could -- that waiver, applies to what, the 51%?
Maureen Pulte Reilly: The 51% consent of the surrounding neighborhood applies to the 500-foot restriction that an adult business may not locate within 500 feet (Voice Overlap).
Potter Stewart: But applicable only to the adult business?
Maureen Pulte Reilly: Adult businesses, bars and certain public entertainments listed in Section 5-2-1.
Potter Stewart: Thank you.
Byron R. White: Any other type -- I take it, any other kind of a theater could be located right next to a residential zone or two theaters could be located right next to each other if they are in this category?
Maureen Pulte Reilly: I believe theaters may be permitted in B3 zones and those zones have become less restrictive, the B4, B5 and B6.
Byron R. White: And it could be right up against the residential zone?
Maureen Pulte Reilly: Yes.
Byron R. White: And they could be next to each other?
Maureen Pulte Reilly: Yes, within the --
Byron R. White: (Inaudible)
Maureen Pulte Reilly: Or even I flew over the cuckoo nest. It is only those that come within our specific definition.
Byron R. White: But all moving picture theaters are licensed?
Maureen Pulte Reilly: All moving pictures theaters are licensed, yes. All licensed in the same way, the same kind of restrictions.
Speaker: I take it or have you suggested that one of the purposes of these restrictions is to maintain property values, like zoning sometimes is aimed at?
Maureen Pulte Reilly: It is very definitely directed to preserve property vales. Yes, Your Honor.
Warren E. Burger: But that is also through what you discussed earlier maintaining the kind of values for residential area where people want to live and have their children brought up?
Maureen Pulte Reilly: Provide a suitable atmosphere for the raising of children, yes.
Warren E. Burger: So it’s an environmental problem which has an incidental impact on property values, is that not a fair way to say it?
Maureen Pulte Reilly: Yes, Your Honor.
Warren E. Burger: They should set out in the first place to try to hold up property values. They set out to try to as you described it in your briefs, they set out to try to preserve a decent environment in the city and one of the consequences of that is that that will also help property values?
Maureen Pulte Reilly: That’s correct Your Honor, thank you. I would like to reserve -- I’m sorry.
Lewis F. Powell, Jr.: Maybe, we didn’t give you enough -- very much time to argue what you have in mind. I do wish you’ve reached the charge that this ordinance is vague and overbroad, for example a language with respect to bookstores refers to stores that have a substantial or significant part of their stock in trade within this scope of the definition, what response do you make to that?
Maureen Pulte Reilly: Well, of course it’s our position that the ordinances are quite specific. We have had to use relative terms in the definition of the bookstores because it’s extremely difficult to say if a store has 89% of its stock in trade to be adult, but that makes it adult, I’m sorry, that does not make it adult but 90% would make it adult. So we used a relative term substantial, that word has been used time and again by this Court. In fact, I think it’s used in U.S. versus O’Brien talking about substantial or compelling governmental interests. Even though the term is relative, it is not vague. This Court has looked at many relative terms at or near a courthouse, interfere with the administration of justice, or such as that were discussed in Cameron versus Louisiana -- the Cameron case, Cox versus Louisiana. And this Court has said that you cannot always have mathematical certainty.
Lewis F. Powell, Jr.: How would you determine substantiality with respect to a particular store?
Maureen Pulte Reilly: Well, the department which now controls the zoning ordinances, the Community and Economic Development Administration would make that determination.
Lewis F. Powell, Jr.: Is there any provision for an administrative hearing to make the determination?
Maureen Pulte Reilly: Your Honor, under our Michigan Court rules, a person may go into Court and within four days, have a decision of an administrative body reviewed and if there’s not substantial evidence, again, the words substantial evidence on the record to support that determination, the Court may interfere with the administrative decision and overturn it. There is a review body. Our board of zoning appeals reviews all decisions that are protested which are made by the Community and Economic Development Department. So there is an in-house review available in the administration of the city and there is court review available on four-days notice.
Speaker: Mrs. Reilly, how permanent is the classification? In other words, if a movie shows theater shows one adult theater -- adult performance or bookstore has, for a period of time, an inventory of adult books, is it then permanently prohibited use or whatever the proper term is, or does it change as the operation changes?
Maureen Pulte Reilly: Under the zoning law, if a use, say an adult use and then seizes to be in an adults use for six months, then it ceases to have the restrictions upon it or the benefits if it’s a non-conforming adult use say, which was existing before our ordinance and it closed down for six months or changed it’s fair for six months, then it would no longer be considered an adult use and no longer be considered a non-conforming use. And if then wished to become an adult business, it would have to go through whatever the rules are applicable to starting a brand new business. There is a six-month time period on it. I’d like to reserve whatever time I have for rebuttal.
Warren E. Burger: Mr. Taylor.
Stephen M. Taylor: Mr. Chief Justice and may it please the Court. The ordinance in question, the ordinance before the Court is a zoning ordinance. At least it is termed that whatever the label given to a regulation whether it be zoning, whether it be licensing, the regulation is subject to strict standards of judicial scrutiny where it impinges upon a fundamental right. Now, there is no dispute that the zoning ordinance here impinges upon the exercise of the First Amendment rights. For that reason, we have attacked that the ordinance had a number of grounds and if I might turn to the question, and I believe Mr. Justice Powell directed with regard to the question of vagueness. If we may look at the ordinance for a second, the questions of vagueness arises in three contexts. First with regard to the definition of the materials per se so --
Lewis F. Powell, Jr.: (Inaudible) she decided below?
Stephen M. Taylor: The question of vagueness, Your Honor? I don’t believe it was raised but the court didn’t decide on that issue. However this Court can look at it, all of the various issues independently and make its own determination. And that is the reason that we have raised it continually through the Court. However, getting back to the point of --
Warren E. Burger: Did they raise it?
Stephen M. Taylor: Yes, Your Honor, in the lower court. I don’t believe however that it was decided on the issue and it clearly was not decided on that issue in the Sixth Circuit Court of Appeals. It was decided on equal protection basis. Now again, with regard to the definitions of an adult bookstore per se, the term is defined as a bookstore having a substantial or significant portion of its stock in trade what is substantial or significant portion, how does one measure that kind of term if --
Warren E. Burger: Well, does this store advertise itself as an adult bookstore?
Stephen M. Taylor: Well, of course we’re dealing with an adult theater but assuming that we were talking about an adult bookstore, yes, it probably would identify itself as an adult bookstore. However, taking the ordinances --
Warren E. Burger: It’s another pretty good definition then?
Stephen M. Taylor: Your Honor, I would beg to differ with you on this basis taking the definition as it stands that could apply to virtually to any kind of a bookstore selling any kind of a material because we don’t know where the line is to be drawn. That is to say, if in the area of First Amendment rights, precision of regulation is a touchstone, there is no way of knowing at what point a bookstore passes that line from adult to non-adult. So, though it may be true, some bookstores advertised themselves as adult bookstores as that term is used, whatever that term means this nevertheless could apply potentially to any kind of a bookstore. On the same basis, if we take a look at the definition of a motion picture theater and enclosed building used for presenting material, well, that doesn’t tell us whether as one film for two hours, it doesn’t tell us whether that is one film for one week or for six weeks, or six films for shall we say two weeks a piece. In other words, again we have the same problem. We don’t know at what point that line is drawn.
Thurgood Marshall: Not Adult theater, is it?
Stephen M. Taylor: Pardon?
Thurgood Marshall: There’s no question about ambiguity about what an adult theater is because I understand, it was agreed that you didn’t let minors in.
Stephen M. Taylor: That would be correct, Your Honor. But on the same basis --
Thurgood Marshall: I think (Inaudible) did?
Stephen M. Taylor: If that be the basis that the city stands and we don’t know that, then we can simply say that any R-rated film as rated by Motion Pictures Association would --
Thurgood Marshall: The impression that you excluded everyone but adults?
Stephen M. Taylor: That would be correct Your Honor.
Thurgood Marshall: So that ergo is an adult theater?
Stephen M. Taylor: That is correct as in so far as the Nortown Theatre goes, that would be correct. However again --
Potter Stewart: Within the definition of the zoning ordinance, is it?
Stephen M. Taylor: Pardon?
Potter Stewart: I have the -- I’m looking at the ordinance on page 81 of this petition for a writ of certiorari. And --
Stephen M. Taylor: Yes, Your Honor. Would you mind if I direct you to page to 66? If that is the appendix or petition for writ of certiorari.
Potter Stewart: What’s page beginning on page 80?
Stephen M. Taylor: I believe that’s a different ordinance Your Honor. 80? That is the licensing ordinance for adult theaters. Same definition, that would be correct, right. Used for presenting material.
Potter Stewart: The same definition?
Stephen M. Taylor: Yes, Your Honor.
Potter Stewart: And that doesn’t say anything there about -- there is nothing in that definition or that definition certainly is not confined to a theater that does not admit minors --
Stephen M. Taylor: That’s correct.
Potter Stewart: It is in quite different language, isn’t it?
Stephen M. Taylor: Yes, Your Honor, that is correct. That’s the point we don’t know at what point a theater becomes an adult theater in accordance with this definition. Now, if might turn to the definition of the material --
Potter Stewart: And the theater that did not admit minors would not be an adult theater within this per se, under this ordinance, would it?
Stephen M. Taylor: Your Honor, we don’t know, that’s the problem.
Potter Stewart: Well, it doesn’t say anything about --
Stephen M. Taylor: That’s correct. It doesn’t define it in those terms. That would be correct. It doesn’t say that a theater which does not admit minors thereby is an adult theater, if that’s what Your Honor is getting at, no, it does not.
Thurgood Marshall: And a theater that does more paying customers. If they exclude paying customers, there must be some reason?
Stephen M. Taylor: That may be true Your Honor. Possibly because the material is not --
Thurgood Marshall: I think this way, is in fact that the theater itself restricts itself to minor a piece of evidence that can be considered as to whether or not it is an adult theater?
Stephen M. Taylor: Again, my answer to that would be no, because there are many theaters which based upon a particular movie which would come to that particular theater at a particular time would exclude minors and we don’t know whether that theatre then would be an adult theater. Now if I might turn to the definition --
Byron R. White: You’re not claiming the ordinance is vague as applied to your clients, you are in effect making an overbreadth analysis, and you claim standing to assert to claim some other business establishments?
Stephen M. Taylor: No, Your Honor. We are claiming that it is vague as applied to my client, if not in this context, then in another context which I was just getting to. And also not only as applied that is written, not only to this particular theater but to all theaters similarly situate.
Byron R. White: Can we doubt about the fact that this ordinance applies to the businesses operated by your clients?
Stephen M. Taylor: Again, we have stipulated (Voice Overlap) that we do show materials of sexual in nature, so if that be the definition, which is what we will get into in a moment, yes. This ordinance then would apply to the Nortown Theatre.
Byron R. White: So, you are really asserting that it’s vague as applied to other uses different from those put on by your own clients?
Stephen M. Taylor: I am also asserting that it’s vague both as to apply to my client and to other uses. Now, if I might get into the next point, the ordinance defines the term, the material, as material distinguished or characterized by an emphasis on the matter and then goes into the definition of the particular matter. What I point out to the Court, again, we have the same problem. We don’t know at what point the material is distinguished or characterized by an emphasis upon. What specifically or what does that mean? How much of the material? What percentage of the material has to be of a sexual nature and anatomical content if you like before it passes that line between non-adult and adult? So then we have again, the same problem with vagueness. Now, if I might turn to the next position that we’ve taken and that is on a question or overbreadth. Now, as we have said, it’s our position that the ordinance is vague as far as those definitions go, but might I point out the Court with regard to the definition as to specific sexual conduct or specific anatomical area that this ordinance applies to, it is quite specific. However, it defines that material in those, in that context in a way which clearly, it goes beyond the restraints on expression, that is to say an obscenity. The ordinance we far beyond permissible restraints on obscenity, and this is conceded by the petitioners in this matter. There is no question about it. Not only does it go beyond permissible restraints on obscenity, but it differentiates between materials which are, between protective materials which are adults and which are not adult.
William H. Rehnquist: Mr. Taylor, do you think that the City of Detroit could have said in an ordinance that regulated uses such as those conducted by your client and pool halls and the other regulated could not be established within 600 feet of an elementary school?
Stephen M. Taylor: Your Honor I think that would depend upon the interest asserted by the City of Detroit.
William H. Rehnquist: But what if they had asserted the interest that they don’t want elementary schools students coming and going from the school to be exposed to those kind of use?
Stephen M. Taylor: My answer to the Court would be no, based upon the definition laid out here by this ordinance and the way this ordinance is written. I would suppose, and I have to speak to Your Honor of the top of my head in the sense that that is not the question that’s before the Court. It may be possible for the city to do exactly what Your Honor is saying. But they can’t do it in this way and that is not the intent of this ordinance or the purpose or the effect of this ordinance.
William H. Rehnquist: Well, I realize that. I was asking you a hypothetical question.
Stephen M. Taylor: Yes sir, you’re right. I understand the hypothetical question and I think the city would have a difficult time justifying that kind of an ordinance unless there was some indication of an actual thrusting or viewing upon children. In other words, some indication that there was some of the material reaching the children, simply to say which in essence is exactly what the city is saying. This I think is where one of the basic questions of the essence -- the question of overbreadth, the question of justification, the interest asserted by the city. What are those interests that the city asserts? The city asserts in interests in protecting its neighborhoods and preserving its -- the values if you like, community living, all of which simply asserted in the abstract are fine. And there is, without a doubt an interest and the city has a valid interest in that. But let’s take a look for a moment if we can from the abstraction of the interest to the concrete basis for the interests. The City of Detroit has said as a basis and has filed many affidavits by a professor. They have said that there are certain characteristics which because of their very nature cause serious deleterious effects. Yet, they never mentioned what those specific effects are. And I might point out to the Court, this ordinance takes effect that the inception of the operation of the theater or the bookstore, that is to say, there is no theater or bookstore showing adult materials, they have to request -- a bookstore or theater has to request a waiver in essence in the case of the Nortown, a waiver of the standards in order to operate as an adult theater. The City of Detroit said that there are certain interests, there is a basis for this interest and they submit affidavits upon which they base their interests. And if we looked at the affidavits, what they really say is, the people object to the materials coming into their area. They have a concept in their minds, a pre-existing notion in their minds, if you like, that they don’t like the material because they don’t like it, they view the area as going down they thereby sell their property or they don’t take care of their property. The property goes down and brings another people and don’t keep it up. Now this is no more than what this Court has --
Warren E. Burger: As of this time, on generalities, there’s nothing in the record about what you are saying now or is there?
Stephen M. Taylor: Your Honor, on the contrary, there is an affidavit submitted by, I believe it’s Mr. Ravitz who’s a professor which is the basis of the ordinances -- this is the basis. This is what the city says. We based our ordinance on this. And what does that ordinance say?
Warren E. Burger: But your generalities that as a result of that, people let their property go down. Did he deal with people neglecting maintenance of their property?
Stephen M. Taylor: Yes, as a matter of fact, Your Honor, in his affidavit he said specifically that whether it’s true or not, that the property is going down, people will act as if it’s going down, as if there is an effect upon in the neighborhood which is deleterious. And therefore, since they will act, then that will be in fact the truth. And this is the point which we’re making to the Court. All that the city is saying on this record is that what this Court has called an undifferentiated fear or apprehension of harm at sometime in the future as a basis for these ordinances, what the city is doing.
Speaker: Is it your case that an adult theater may be located in any zone in which a non-adult theater is located?
Stephen M. Taylor: Yes, Your Honor. We are saying that there is virtually no reason, no basis, no rationale.
Speaker: Do you think that in Detroit, they have six; is it business zones, B1 to B6?
Stephen M. Taylor: That is my understanding and is my --
Speaker: And I take it on the face of the ordinance that says that or it recites that adult theaters are not permitted in the B1, B2 or B3 Zones?
Stephen M. Taylor: I believe --
Speaker: Although other theaters are?
Stephen M. Taylor: No, Your Honor. I believe other theaters are not permitted in B1, 2 and 3. And adult business and adult theaters are not permitted in B3, 4, 5 and 6 though other theaters are. So there is of difference based upon the kind of the material intended to be disseminated.
Speaker: You would think that general provision would fall if you win this case? I mean not just the 500 or 1000-foot --
Stephen M. Taylor: No, Your Honor. Our position is that our theater or any theater or bookstore should be treated no differently than in any other theater or bookstore.
Speaker: Well, then you should answer my question yes, so your kind of theater, your kind of bookstore, should be able to be located in any zone in which a an ordinary theater?
Stephen M. Taylor: That is correct.
William H. Rehnquist: Should a pool hall under your constitutional theory be able to be located at any zoning district where a grocery store can be located?
Stephen M. Taylor: There may be a difference there Your Honor, but the difference is that a pool hall is not in of itself protected, for instance the theaters, I might have point to the Court that you can’t show a film without a motion picture theater. If you stop the operation of the theater, you stop the operation -- you stop the showing, not only of a particular film, but virtually all films which will be shown at that theater.
William H. Rehnquist: But what it the city says, pool halls and adult theaters produce exactly the same consequences, attract adults kind of a C-D class of adults in the eyes of the city and we simply want to confine them or limit their closeness of which they’re located together? Why can’t the city do that?
Stephen M. Taylor: The city may be able to do that but would have to come up with a concrete justification which would be I might have more than merely that the city doesn’t like the people who come to the theater because they assume something is going on the theater, which is exactly what counsel has come up with, recently, just now, in this interest. They assume that the people are sexually excited and therefore, to say this kind of thing we don’t want in our --
William H. Rehnquist: But there is some evidence in the record. Isn’t there that prostitution tends to follow these types of operations and that the city was concerned not about just the content of what was being shown but about the attendant consequences when the neighborhood took on these characteristics.
Stephen M. Taylor: Your Honor, one, there has been no independent evidence, no showing that adult bookstores and adult theaters, in and of themselves causes problems. There is virtually nothing on the record. Moreover, what the city has said is that, there are massage parlors which caused these problems. As the city has just said, yet you will note that massage parlors are not included in the regulated uses. So, there is something other than prostitution which is involved. Yes, I’m sorry.
Lewis F. Powell, Jr.: Tell me this, is your theater located in one of the districts were adult theaters maybe located?
Stephen M. Taylor: Yes Your Honor, as I understand that there is no question that raised by the city that --
Lewis F. Powell, Jr.: My next question is, are you within the 1000 feet of another adult theater?
Stephen M. Taylor: We, by way I referred to my client’s theater Your Honor is apparently within a 1000 feet of two other regulated uses. The record does not disclose whether or not --
Lewis F. Powell, Jr.: What happens? Do all three have to go out of business?
Stephen M. Taylor: Apparently, the one that has to go out of business is the third one.
Lewis F. Powell, Jr.: Do you mean, is that you?
Stephen M. Taylor: Yes, Your Honor. That apparently is us.
Lewis F. Powell, Jr.: Even though you’ve been established before the ordinance?
Stephen M. Taylor: No. In this case, Your Honor, unlike the theater owned by Nortown, respondent Nortown, we had not been an operational theater prior to the time of the promulgation of the amended ordinance. Nortown apparently had been a theater for some 40 years and then changed policy subsequent to the ordinance being passed. We were incipient theater, if the Court will, having passed all of the preliminary test and then the ordinance was promulgated and we were denied the certificate of occupancy.
Lewis F. Powell, Jr.: Do we have theater in either of these cases located in an area where adult theaters may not be located under the ordinance?
Stephen M. Taylor: As far as I know, Your Honor, neither of the theaters involved in this case is in such a generally outlawed zoning area. So, it’s simply a questioning of this clustering effect of the theaters.
Speaker: (Inaudible)
John H. Weston: Mr. Chief Justice and may it please the Court. It is critical it seems to recall in this case at all times that notwithstanding the suggestion and possible implication of Mr. Justice Rehnquist earlier in my colleague’s argument that we are dealing here only with speech which is presumptively protected under the First Amendment. The definitions under this ordinance are not the merely definitions nor it there any question that we are not dealing with material which has previously been found under procedural safeguards to be obscene. So we are dealing here with absolutely presumptively protected speech and we resist and resent the attempt on the part of petitioners to try to deal with disseminators, and places or dissemination of presumptively protected constitutional speech, in the same fashion as with pool halls, with grocery stores, with flophouses, with billiard parlors, and the like.
Potter Stewart: How far does your argument go? In other words, I suppose you would agree that a city could zone a portion of it’s areas as residents “A” for a single occupancy residential units and thereby exclude from such an area, grocery stores, pool halls, shoeshine parlor, parlors, barbershops, and so on.
John H. Weston: Yes, Your Honor.
Potter Stewart: But is it -- your claim, if taken to its logical stream would be that it could not exclude from such an area any bookstore?
John H. Weston: No Your Honor, not at all.
Potter Stewart: Or movie picture theater?
John H. Weston: Not at all, Your Honor.
Potter Stewart: Correct?
John H. Weston: We do not quarrel with the right of this municipality or any municipality to be able to zone in traditional way and in fact Detroit, this has been pointed out, does have the traditional zoning breakdown.
Potter Stewart: Traditional?
John H. Weston: No, I suppose --
Potter Stewart: Why does a status quo have to be frozen terms of land use and planning?
John H. Weston: I would say there is nothing required about that of course Your Honor. But in this case, we have, where Detroit has previously zoned in the commercial, residential and industrial areas. And what we’re suggesting is that, there can be no discrimination, no regulation of theaters in terms of -- in the name of zoning on the basis of content where the content unquestionably at the time of the zoning is entitled to presumptive constitutional protection. It’s that which we are resisting. If the city wishes to say, within consistent zoning policies that no theaters may be located in a particular zone or --
Potter Stewart: But why isn’t that -- why isn’t that a violation in the First Amendment?
John H. Weston: There may be other --
Potter Stewart: Under your argument?
John H. Weston: Well, because what we are saying is that there is a new inability constitutionally on the part of the municipality or other form of Government to discriminate against theaters on the basis of content where that material is entitled to presumptive protection consideration as these materials are. No theater is one thing, just as, might have and has been said many time by this Court that there may well be instances where to picketing may be undertaken or may well be instances where there are no speech which may be tolerated under circumstances.
Potter Stewart: Why would you say that a single family residential zone is sustainable if it excludes pool halls and theaters from it for example? What’s the interest that supports that?
John H. Weston: Well it seem Your Honor, in particularly in light of the recent decision of this court in the Belle Terre case that there are interests which are supportable constitutionally in our municipal areas --
Byron R. White: (Inaudible)
John H. Weston: Well, I suppose the language of the Court is clear to preserve a certain environment, a healthy environment, a protective environment for --
Speaker: The consequences of having the commercial establishments say are --
John H. Weston: Potentially yes, Your Honor. But the fact that the term zoning and concepts inherent in zoning is superimposed on some sort of scheme, no more confers Talismanic community from constitutional scrutiny than any other such device which has ever been before this Court. Simply because the word zoning is utilize does not end the question and the use of the --
Speaker: I suppose you can have a B1, B2, B3 and B4. In some areas you can have pool halls, but in that area or in grocery stores, but in that area, you could have secondhand automobile dealer?
John H. Weston: That may well be the case, yes Your Honor.
Speaker: Because of the consequences and the characteristics of the business.
John H. Weston: And because of the deference which this Court has traditionally given to certain governmental entities in terms of being able to control their own destinies, subject to a strict analysis of constitutional --
Speaker: Now what if one theater has a different consequence than another? It may be because of its content that it has a different, let’s us just posit that one kind of a theater has a different impact than another.
John H. Weston: Your Honor, firstly -- excuse me.
Speaker: Why would you say that the one could be -- that neither could be excluded from the district?
John H. Weston: Your Honor, it may be under some circumstances which are not present in this case and which are not present in the record which we have before us, that there may be a specific entity, a specific entity, a specific theater, a specific work which in light of the legitimate and compelling interest of the city may in fact be regulated as under any form of speech where appropriate specific particular questions are raised with regard to it. There is nothing unconstitutional for example about denying to a particular group the right to seek a forum under certain circumstances. There may well be a particular case. We do not have this in this case.
Lewis F. Powell, Jr.: But suppose -- I gather these 1000 or 500-foot limitations apply only to theaters, defined as adult?
John H. Weston: That’s correct, Your Honor.
Lewis F. Powell, Jr.: Suppose you didn’t have the limitation, but rather that 1000 and 500-foot limitation should apply to all theaters?
John H. Weston: In that case Your Honor, certainly the question of equal protection in light of First Amendment activities making discrimination on the basis of content would be vastly deluded. I’m not prepared --
Lewis F. Powell, Jr.: Wouldn’t it be here, would it?
John H. Weston: I would think not frankly. There might well be if they were certain uses --
Lewis F. Powell, Jr.: Would you say that that would notwithstanding the First Amendment provisions, that kind of zoning would be all right?
John H. Weston: Your Honor, that’s what I’m trying to suggest in terms of the reluc -- the refusal them of the city to discriminate on the basis of content.
Lewis F. Powell, Jr.: Even though there are no other businesses, even though no other businesses are in the area?
John H. Weston: No Your Honor, you see that’s the area which I’m reluctant to concede and will not concede. There may be of other and separate First Amendment problems raised by an attempt to exclude theaters wherefore example other businesses were permitted.
Lewis F. Powell, Jr.: Can you say it again? Theaters have to be without regard to whether they’re adult theaters or not. No two theaters can be close within a 1000 feet to each other nor closer than 500 feet to a residential district?
John H. Weston: Yes, Your Honor. In that sense that would eliminate the content based equal protection discrimination of which we complain most strongly. It would not necessarily eliminate that fact that there may well be able to be under the zoning laws, 97 gas stations which are allowed to proliferate near one another within 1000 feet.
Lewis F. Powell, Jr.: (Inaudible) problem then without the First Amendment --
John H. Weston: Without that same compelling to the First Amendment, yes Your Honor.
Warren E. Burger: On the First Amendment factors, did it not?
John H. Weston: Well, there were some implicit there yes, Your Honor, but the Court --
Warren E. Burger: Deviation.
John H. Weston: Yes, Your Honor. But the Court was very specific in that in noting that it was not a fundamental right involved there and the consequently the strict scrutiny test was not required. In this case though, it is conceded by all parties that this is an ordinance which directly on its face purports to regulate first amendment activities, for on the basis of content that involves the fundamental situation and consequently the strict scrutiny test must be applied and it is our position and in this sense, we differ some of what the Court of Appeals because of course we agree that the discrimination, the distinctions that are made in these ordinances cannot stand on equal protections. However, we disagree with the Court of Appeals because we do not concede that the City of Detroit has a legitimate of no less compelling interest in the ordinance and the purposes of the ordinances which they have set up. Now, let me be very clear about that. We are not saying that the City of Detroit does not have legitimate interest in trying to maintain nice neighborhoods and a fine place in which for the citizens to live and maintain property values and a lovely area for children in which to be raised. But that’s like analyzing an ordinance in terms of the interest by saying the purpose of it is to do good. It appears that we must be more precise in our analysis of what the ordinance is and looking at it with more precision. We submit that the purpose of that ordinance is to prevent clustering of adult theaters based on question of content on the basis of the undifferentiated fears of some people or some dominant interest in the community that bad things will happen --
John Paul Stevens: Is it your position that content may not be as standard at all or can it sometimes be -- guide the zoning?
John H. Weston: Where the speech is protected Justice Stevens, it is --
John Paul Stevens: Then no differentiations on the basic kind. Supposing for example in the neighborhood next to an elementary school, the city permitted a theater to show nothing but Walt Disney Cartoons, if it granted that permission, I take it your position would be it must therefore also grant permission to show anything protected by the First Amendment?
John H. Weston: Certainly, as an abstract proposition, I would agree with that 100%. And clearly, it appears to me that those issues Justice Stevens were really dealt with by this Court in the in the recent Erznoznik decision versus City of Jacksonville, where we cannot condition necessarily, that which is fit for adults on that which is fit for juveniles. And absence some greater compelling interest and demonstrated need which we do not have in this case. It would be, it isn’t simply not possible to say as petitioners have tried to assert that this case is based on a desired to protect juveniles, that theaters are by definition adult, they are by definition and either commercial or industrial areas, this is not an area simply where children are involved. And to the extent that the city wishes to assert that there are somehow something wrong with exterior advertising or whatever may be there that children cannot avoid based on some real record which we do not have in this case. Then, less intrusive regulation on First Amendment rights may be adopted to protect against those specific, not generalized, not undifferentiated fears --
John Paul Stevens: You’re saying its okay to look at the content only for the purpose of protecting juveniles, but there is no such showing made here?
John H. Weston: No, Your Honor, I’m not saying that at all. I’m saying that as a general --
John Paul Stevens: You said that you could avoid the advertising outside the theater that would attract the juvenile?
John H. Weston: No, what I’m suggesting is this, I recognize for example that the Erznoznik opinion is limited to some extent in that obscene material on the outside of a billboard or for example material which might not be obscene for adults but which perhaps might be harmful matter for juveniles. Stronger material than was involved in Erznoznik might be by appropriate legislation or zoning limited so that it could not be exposed to juveniles in this 600-foot circumstance from schools. What I’m saying however is that content of a theater, content of films or books sold in the theater or bookstore which are not exposed to juveniles which are not present in this factual circumstance such as you said, in the absence of a very specific record which I really frankly cannot even imagine, may not be discriminated against on the basis of content. That is the position which we assert.
William H. Rehnquist: Mr. Weston, supposing then instead that the Detroit, this were Dodge City and there the 50 years, they enacted an ordinance that no movie showing western films could be within a 1000 foot -- feet of another one because the cowboys came in on horses. And they just couldn’t accommodate all the horses if the theaters were too close together. Now, would you say there is something wrong with that?
John H. Weston: Your Honor, on the basis of the flat assertion that the Court has made, I would say that there would simply have to be a stronger showing that theaters exhibiting western somehow attract more horses I suppose, let alone anything else then --
William H. Rehnquist: But supposing it was that kind of a showing?
John H. Weston: Your Honor, it would appear that in the absence of a compelling state interest, in the preservation of the streets, anymore than an interest which this Court has ruled insubstantial to prohibit the distribution of hand bills in the name of littering which simply not be appropriate to justify discriminating against presumptively protected disseminators of speech or dissemination of presumptively protected speech on the basis of conduct. And I would, without question exhort this Court not to remove that bulwark in the American Constitution.
Warren E. Burger: Typically, with an ordinance, the zoning ordinance that provided the there must be a parking lot within 50-feet of every theater with parking spaces at a ratio of one car for every two seats in the theater. It has nothing to do with First Amendment. Just to keep the cars off the street.
John H. Weston: Yes, I understand Your Honor. Again, I would certainly, again -- without talking about discriminatory enforcement making on it’s face, that certainly becomes much more like O’Brien where the ordinance involved is not -- ordinance or statute is not seeking directly to limit First Amendment rights and I think at that point, then the counsel’s O’Brien analysis would obtain whereas in this case, it seems totally misplaced whatsoever. Thank you.
Warren E. Burger: Mrs. Reilly.
Maureen Pulte Reilly: Thank you Your Honor. I would like to take the remaining moments to respond to some of the comments made by counsel for respondents. In response to one of the questions by one of the Justices, I was given the impression and I’m fearful maybe some of the judges were that -- the adult businesses may not locate in the same business districts as other non-adult businesses of the similar type. That is not so, the adult theaters may locate in zones B4, B5, and B6, just as a non-adult theater may locate on those zones unless they are faced with the restrictions, the 1000-foot restriction or the 500-foot restriction.
Speaker: A non-adult beside -- with an adult theater?
Maureen Pulte Reilly: That is correct, yes.
Speaker: 1000-foot distance has to between two adult theaters?
Maureen Pulte Reilly: Two regulated uses which included other than the adult businesses. The second point is --
Speaker: Do you think are there some areas in which adult theaters may not locate that other theaters may?
Maureen Pulte Reilly: Only if it’s subject to the two restrictions that I mentioned the 1000-foot or the 500-foot. Otherwise, are treated the same as a regular theater.
Speaker: So far as general zoning goes?
Maureen Pulte Reilly: Yes.
Speaker: Right.
Maureen Pulte Reilly: The point has also been raised by counsel in oral argument and in his brief that we did not zone massage parlors. I think the answer to that is rather obvious. Massage parlors are legitimate business operations as our health clubs, spas and so on. It is only when they’re fronts for prostitution that they create a problem and we --
Speaker: Pool halls, and shoeshine parlors, and motels and hotels are presumptively legitimate operations too?
Maureen Pulte Reilly: Yes, Your Honor. But the massage parlors -- the legitimate massage parlors have not created the problem that pool halls, bars and so on have created. It’s only those massage parlors which are fronting as houses of prostitution which have created the problem and clearly we do not intend to zone them.
Speaker: We padlocked them.
Maureen Pulte Reilly: We padlocked them and put them out of business entirely. One of the Justices raised the question whether it would be feasible to limit all theaters under the 500-foot and the 1000-foot restriction. Our problem with that is, that we feel that if we did that, then the non-adult theaters would claim that the ordinance applied to them was over broad because there are no adverse effects from their operation. Therefore, they should not be restricted. They would claim First Amendment rights and claim that the city’s ordinance unnecessarily restricted their location and their operation and so we have not included all theaters. We won’t include it under the ordinances only those theaters which have been shown to cause deleterious effects in the neighborhood.
Speaker: I suppose, a theater if its large enough can cause, it might be considered adverse effects in the neighborhood by bringing a lot of traffic and a lot of noisy people late at night, isn’t that true?
Maureen Pulte Reilly: Yes, Your Honor, but that theater --
Speaker: A lot of non-neighborhood people?
Maureen Pulte Reilly: If it creates a nuisance in the neighborhood, then the nuisance maybe enjoined. Whatever the operational effects caused by the large theater are, then the city might go into court and ask that those operational effects as to congestion of traffic and so on be enjoined as to that specific theater and those specific operational characteristics.
Warren E. Burger: But that’s not an exercise the power -- police power of zoning, is it?
Maureen Pulte Reilly: No Your Honor, that relates to a specific nuisance problem. There is a law in the City of Detroit --
Speaker: For instance that’s the reason you exclude from residence “A” districts and from commercial B1 and 2 and 3, all theaters. There’s effect.
Maureen Pulte Reilly: (Voice Overlap) and the parking problem is treated by ordinance in the city. There are requirements as to the number of parking spaces which must be made available for a theater having a certain number of seats. But that applies to all theaters regardless of the content.
Speaker: (Voice Overlap) parking ordinance.
Maureen Pulte Reilly: Yes, Your Honor. If there are no further questions --
Potter Stewart: Mrs. Reilly, I have, it we can get it straight on page 86 of the petition for the writ of certiorari. There is that whereas beside all -- on the third and fourth paragraphs. It said, “Whereas adult motion pictures theaters, adult mini motion picture theaters, adult bookstores and group, and cabarets are not permitted in B1, B2, or B3 zone districts, and are only permitted with the approval of City Plan Commission in B4, B5 and B6. I take it in what you say, I heard that no theaters are permitted in B1, B2, and B3?
Maureen Pulte Reilly: That’s correct, Your Honor.
Potter Stewart: So that this is true but it’s also -- this recital is true but it’s also true of all theaters.
Maureen Pulte Reilly: That’s correct. It did not go far enough to explain that it does include all theaters. Thank you, our Honors.
Warren E. Burger: Thank you Mrs. Reilly. Thank you gentlemen. The case is submitted.