                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                         File Name: 04a0425p.06

                       UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________


                                                         X
                                     Plaintiff-Appellee, -
 EXECUTIVE ARTS STUDIO, INC., d/b/a VELVET TOUCH,
                                                          -
                                                          -
                                                          -
                                                              No. 02-2183
           v.
                                                          ,
                                                           >
 CITY OF GRAND RAPIDS,                                    -
                                  Defendant-Appellant. -
                                                         N
                          Appeal from the United States District Court
                     for the Western District of Michigan at Grand Rapids.
                        No. 01-00196—Gordon J. Quist, District Judge.
                                        Argued: June 17, 2004
                               Decided and Filed: December 10, 2004
                        Before: SILER, COLE, and ROGERS, Circuit Judges.
                                         _________________
                                              COUNSEL
ARGUED: Scott D. Bergthold, LAW OFFICE OF SCOTT D. BERGTHOLD, Chattanooga, Tennessee,
for Appellant. Gregory Fisher Lord, LAW OFFICE OF GREGORY FISHER LORD, Sterling Heights,
Michigan, for Appellee. ON BRIEF: Scott D. Bergthold, LAW OFFICE OF SCOTT D. BERGTHOLD,
Chattanooga, Tennessee, Daniel A. Ophoff, Catherine M. Mish, CITY ATTORNEY’S OFFICE FOR THE
CITY OF GRAND RAPIDS, Grand Rapids, Michigan, for Appellant. Gregory Fisher Lord, LAW OFFICE
OF GREGORY FISHER LORD, Sterling Heights, Michigan, Allan S. Rubin, DRAPER & RUBIN PLC,
Southfield, Michigan, for Appellee.
                                         _________________
                                             OPINION
                                         _________________
        SILER, Circuit Judge. The City of Grand Rapids (City) appeals the district court’s denial of
motions to both abstain from, and subsequently dismiss, this action. The City also appeals the grant of
summary judgment in favor of the plaintiffs, Executive Arts Studio, Inc., and the scope of the resulting
injunctive relief. For the reasons stated hereafter, we AFFIRM.
                                         I. BACKGROUND
        In August 2000, Executive Arts Studio, Inc. (Executive Arts or Velvet Touch), which operates an
adult bookshop under the business name “Velvet Touch,” applied to the planning department of the City
for a variance from the City’s zoning ordinance that regulated adult businesses. City Ordinance 77-31,
adopted in 1977 as Article 25 to the existing zoning ordinance, added section 5.284(2) which defined what

                                                   1
No. 02-2183             Executive Arts Studio v. City of Grand Rapids                                  Page 2


constituted an adult bookstore. These stores, and certain other regulated businesses such as pool halls and
pawn shops, were prohibited from establishing themselves within 1,000 feet of any two other regulated uses
or within 500 feet of any area zoned for residential use. Executive Arts had lost its lease in an adjoining
municipality and found a desired relocation site in Grand Rapids. However, this site was within 1,000 feet
of two other regulated uses and within 500 feet of a residential area. The City had defined an adult
bookstore under Article 25 of the ordinance as:
       An establishment having as a substantial or significant portion of its stock in trade, books,
       magazines, and other periodicals which are distinguished or characterized by their emphasis
       on matter depicting, describing or relating to “specified sexual activities” or “specified
       anatomical areas,” as defined herein, or an establishment with a segment or section devoted
       to the sale or display of such material.
        Executive Arts represented to the City that only three percent of Velvet Touch’s inventory consisted
of the items specifically enumerated in the ordinance since the most significant portion of its inventory
consisted of sexually explicit videos and other sexual paraphernalia. As the City had previously concluded
that a “substantial or significant portion” under the statute should be defined as five percent or greater of
the enumerated items within a businesses inventory, it concluded that Velvet Touch was not within the
definition of an adult bookstore and therefore did not require a variance to conduct business at its chosen
location. Shortly thereafter, Executive Arts purchased the building at issue and began operations.
        Michael Vredevoogd, an adjacent property owner, appealed the City’s decision to the Grand Rapids
Zoning Board of Appeals (ZBA), which affirmed the City’s conclusion in December 2000. In January 2001,
Vredevoogd filed suit in Kent County Circuit Court seeking declaratory and injunctive relief. He claimed
that 1) Velvet Touch was an adult bookstore; 2) its location violated the zoning code; and 3) therefore, the
court should enjoin Executive Arts’s operation of Velvet Touch as a nuisance per se. Treating the complaint
as an appeal of the ZBA decision, the circuit court issued a decision on February 22, 2001, agreeing with
Vredevoogd that Velvet Touch was an adult bookstore as defined in the ordinance. Although the court
described the ordinance as a “dinosaur” because it had never been modernized since the 1970s to include
more current adult entertainment staples, such as video discs and tapes, the court found that the ordinance
encompassed an establishment with either 1) “a substantial or significant portion” of its inventory in
sexually explicit reading material; and/or 2) a “segment or section” of the store exclusively devoted to such
material. As Velvet Touch fell into the latter category, the court found that Velvet Touch met the definition
of an adult bookstore.
        However, the court determined that it was premature to rule on the remaining issues as Executive
Arts was entitled to a ruling by the ZBA on the original variance request. After the ZBA developed a record
and ruled upon the request, any dissatisfied party would be entitled to appeal the decision to the circuit
court, which retained jurisdiction over the matter. The court also noted that “[w]hether the ordinance is
invalid because it does not require that any section or segment be substantial or significant, i.e., large” was
not a matter for the ZBA to decide, but for the circuit court, if a variance was denied.
       A few days after the circuit court’s decision, Executive Arts removed all magazines from its store
and communicated that fact to the City. On February 27, 2001, the City Commission adopted Ordinance
01-07, which amended the definition of adult bookstore to include the sale, rental, trade, exchange or display
of books, magazines, video tapes, video discs and other more recent additions to the adult entertainment
industry’s stock in trade. This ordinance became effective on March 2, 2001 as Ordinance 01-07.
        On March 29, 2001, Executive Arts filed a 42 U.S.C. § 1983 claim in federal district court alleging
that the original Ordinance 77-31 violated, both facially and/or as applied, the First, Fifth and Fourteenth
Amendments, requesting injunctive and declaratory relief. On May 3, 2001, the ZBA denied the variance
request. Executive Arts appealed this decision to the Kent County Circuit Court on May 22, 2001. On June
18, 2001, Executive Arts filed with the Kent County Circuit Court an “Amended Notice of Reservation of
No. 02-2183                    Executive Arts Studio v. City of Grand Rapids                                                  Page 3


Federal Claims/Defenses” stating that Executive Arts had the intention of reserving the right to raise and
litigate any federal claims in federal court pursuant to England v. Louisiana Board of Medical Examiners,
375 U.S. 411, 421-22 (1964).
         On June 7, 2001, the City filed a motion with the district court requesting that it dismiss the
complaint on the basis of the Younger abstention doctrine due to the ongoing state litigation.1 Younger v.
Harris, 401 U.S. 37 (1971). Subsequently, in July 2001, Executive Arts amended its complaint to specify
that it challenged both Ordinance 77-31 as a violation of the First and Fourteenth Amendments, and the
newly adopted Ordinance 01-07 as violative of the First Amendment, along with a related Fourteenth
Amendment due process claim for its prior non-conforming use of the property before the enactment of
Ordinance 01-07. The district court denied the City’s Younger motion on October 9, 2001, declining to
abstain. See Executive Arts Studio, Inc. v. City of Grand Rapids, 179 F. Supp. 2d 755 (W.D. Mich. 2001).
         On October 11, 2001, the Kent County Circuit Court issued an opinion finding in logical progression
that 1) the amended ordinance applied to Velvet Touch; 2) Executive Arts was therefore required to seek
a variance; 3) this variance was properly denied; and 4) Velvet Touch was a public nuisance under Michigan
law and would have to either cease operations or remove all the material which caused it to fall into the
ambit of the ordinance. The circuit court additionally addressed a federal constitutional overbreadth issue
on the basis that Executive Arts raised the issue during oral argument. The circuit court considered itself
bound to consider the issue once raised, and therefore, in an exercise of caution, determined a need to
address all the possible federal constitutional challenges out of efficiency and the concern that by raising
one constitutional issue before the circuit court, Executive Arts potentially would waive any further right
to litigate the federal constitutional issues in any forum. The circuit court found against Executive Arts
when it addressed these issues, stating its belief that the ordinance was constitutional.
        Subsequently, Executive Arts filed a motion for summary judgment in the federal district court,
while the City moved to dismiss the case based on the Rooker-Feldman doctrine and claim preclusion under
the Full Faith and Credit Statute, 28 U.S.C. § 1738, due to the decisions in the state court. On August 29,
2002, the district court held that Rooker-Feldman was inapplicable and granted Executive Arts’s summary
judgment motion.2 See Executive Arts Studio, Inc. v. City of Grand Rapids, 227 F. Supp. 2d 731 (W.D.
Mich. 2002).
         In ruling on the Rooker-Feldman issue, the district court concluded that Executive Arts had
presented a valid England reservation of its federal claims to be pursued in federal court when litigating in
the state court, particularly since the first time Executive Arts voiced its federal claims was in the federal
forum. The district court found that having invoked the jurisdiction of the federal court, Executive Arts was
still bound to pursue its state claims in state court. Additionally, the district court examined the statements
made by Executive Arts’s counsel before the Kent County Circuit Court and failed to find a valid waiver
of the England reservation despite some comments in regard to the ordinance’s being overbroad, particularly
as Executive Arts’s counsel clarified himself during the exchange by stating, “I think that the ordinance, in
and of itself, is defective on its face. But, that’s not a part of this argument. We’re here on a limited appeal.
This issue is appealing the Board’s decision on remand.”
        As the evidentiary base for granting summary judgment, the district court had before it the affidavits
of two expert witnesses, William Hoyt for the City and R. Bruce McLaughlin for Executive Arts.
McLaughlin’s study concluded that there were only six sites available to Executive Arts within the City for
adult regulated uses. Hoyt found that there were eleven parcels available, after excluding four non-
conforming adult sites which had been grandfathered. However, when the district court applied the distance


    1
        The City had also raised this issue in its answer to the complaint.
    2
        The court did not address the Full Faith and Credit argument, implicitly ruling against the City on the claim preclusion issue.
No. 02-2183                Executive Arts Studio v. City of Grand Rapids                                              Page 4


restrictions as written in the ordinance to Hoyt’s study, rather than how the City subjectively claimed it
would seek to enforce the ordinance, the district court concluded that Hoyt found that only three parcels
were available. When combined with the four grandfathered sites, the district court concluded that the City
claimed there were seven current sites available for adult regulated use. Given that the evidentiary
difference between the parties was six sites versus seven sites out of, respectively, a total of 2546 or 2520
parcels, the district court could not discern any difference of material fact. Therefore, it found summary
judgment was appropriate due to the congruence of facts between the litigants.
        In ruling on the summary judgment motion, the district court found that under City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1985), and its progeny, the City had enacted the Ordinances for a
proper purpose and did not have to show that Velvet Touch, in particular, would cause undesired secondary
effects. However, the district court did find that the City’s ordinances, when applied, failed to allow
reasonable alternative avenues of communication.
        The district court based this decision by examining several cases which either found that reasonable
alternative avenues of communication existed, or, alternatively, did not exist, looking particularly to Boss
Capital, Inc. v. City of Casselberry, 187 F.3d 1251, 1254 (11th Cir. 1999), for a structured template on what
issues to consider. After examining several cases, the district court concluded that while no bright line rule
existed on what the City was minimally required to allow, it was convinced that the number of sites
permitted under the ordinance was wholly inadequate, whether calculated as a percentage of the number of3
parcels, acreage, or particularly if the ratio between the number of sites and the population was considered.
Therefore, the district court granted summary judgment and declared that Article 25 of the City of Grand
Rapids’s Ordinances 77-31 and 01-07 violated the First and Fourteenth Amendments as applied to
Executive Arts, permanently enjoining the City and its agents from enforcing the ordinances against
Executive Arts.
                                                     II. ANALYSIS
A. District court’s exercise of authority. As a threshold matter, this court must determine whether the
district court properly reached the merits of this case. The City filed motions at the appropriate junctures
requesting that the district court abstain from jurisdiction under the Younger doctrine, Younger v. Harris,
401 U.S. 37 (1971), and then requested after the state court issued an opinion that the district court dismiss
the action under either the Rooker-Feldman doctrine, see Peterson Novelties, Inc. v. City of Berkley, 305
F.3d 386, 390-91 (6th Cir. 2002), or, alternatively, claim preclusion. 28 U.S.C. § 1738. Each of these
requests was predicated upon the ongoing litigation and/or decisions in the Kent County Circuit Court. As
these issues are addressed in turn, it is important to recognize the manner in which this dispute began and
the path it then followed through the state and federal courts.
         Executive Arts initially applied for a zoning variance in order to prospectively open its business at
its desired location, just as any other regulated use would need to do under the zoning code. These regulated
businesses also include such establishments as pool halls and pawn shops, which are unlikely to have similar
constitutional issues as Executive Arts. When Vredevoogd challenged Executive Arts’s ability to locate
at the site under the zoning ordinance before the ZBA, he did so as an aggrieved party against the City’s
interpretation of its ordinance, with the City effectively in the role as the defendant alongside Executive
Arts. When Vredevoogd appealed the ZBA’s decision to the circuit court and prevailed, Executive Arts
immediately identified separate constitutional issues that had not been previously raised and filed suit in
federal court seeking relief.


    3
     The district court recognized the City’s contention that the sites to population ratio lacked some validity without a
comparison to the population’s demand for such businesses. However, the court noted that the City had failed to provide any
evidence that the restriction of supply was generally in accord with demand as was done in North Avenue Novelties, Inc. v. City
of Chicago, 88 F.3d 441, 445 (7th Cir. 1996).
No. 02-2183             Executive Arts Studio v. City of Grand Rapids                                    Page 5


        Until this point, Executive Arts was not conceivably defending itself against any type of state
proceeding, as it simply had sought a prospective zoning variance and then had begun operations when told
it did not need one. Executive Arts never abandoned its efforts to legally operate within the guidelines of
the zoning regulations under Michigan law. However, upon finding itself prospectively in the defendant’s
role against the City, Executive Arts immediately presented its claims in federal court without raising them
before any state tribunal. At the time this suit commenced in federal court, the only decision rendered by
the state court, and the only issue before it, was if Article 25 of Ordinance 77-31 applied to Executive Arts.
Indeed, Executive Arts filed its federal suit almost a month before its original variance request on remand
was denied by the ZBA. Therefore, Executive Arts proceeded both internally within state law in asking for
a lawful exception to its specific operations as provided for in the City’s zoning regulations, and externally
by filing a separate federal suit to challenge the constitutionality of the ordinance when Executive Arts
perceived the prospect of the Ordinance being used against itself.
        1. Younger abstention. The City claims that the district court should have abstained from taking
jurisdiction over the case due to the Younger abstention doctrine. The district court’s application of the
Younger abstention doctrine is reviewed de novo. Habich v. City of Dearborn, 331 F.3d 524, 530 (6th Cir.
2003).
        The Younger abstention doctrine counsels a federal court to refrain from adjudicating a matter that
is properly before it in deference to ongoing state criminal proceedings. Tindall v. Wayne County Friend
of the Court, 269 F.3d 533, 538 (6th Cir. 2001). This doctrine has been extended to include certain civil
enforcement proceedings and civil proceedings uniquely involving the ability of state courts to perform their
judicial functions, such as civil contempt orders or appellate bond requirements. See New Orleans Public
Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350, 367-68 (1989). While certain classes of
cases, particularly state criminal actions, are directly implicated by the Younger abstention doctrine, it
remains “the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in
deference to the States.” Id. at 368. There is “[n]o more right to decline the exercise of jurisdiction which
is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.”
Id. at 358 (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)).
        Due to the particular procedural circumstances in this case, it is difficult to find the exceptional
circumstances which would have justified the district court’s abstention. The district court agreed with the
City that it facially appeared that Younger abstention applied, particularly in light of the three-part test used
in Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)(“[F]irst, do state
[proceedings] . . . constitute an ongoing state judicial proceeding; second, do the proceedings implicate
important state interests; and third, is there an adequate opportunity in the state proceedings to raise
constitutional challenges.”). However, although the City does have a substantial interest in enforcing its
zoning laws without federal interference in the state’s judicial processes, the City simply was not in any type
of enforcement posture against Executive Arts at the time Executive Arts filed the federal action attacking
the constitutionality of the legislative enactment. Executive Arts and the City had been returned by the Kent
County Circuit Court to the initial position of Executive Arts’s requesting a variance with only the
prospective possibility that a denial would lead to some type of future enforcement action by the City
against Executive Arts. This case is not the same as Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), where
the Court first found Younger applicable in the civil enforcement context. In Huffman, ironically in a case
involving the civil enforcement of a public nuisance statute against an adult movie theater, the enforcement
action was ongoing when the federal plaintiff sought relief. Id. at 598-99. This case is far more similar
to Wooley v. Maynard, 430 U.S. 705 (1977). There, the Supreme Court distinguished a federal plaintiff’s
constitutional attack upon a state car licensing law, under which the plaintiff had been convicted three times
after making constitutional arguments at his state trials from which he did not appeal, from Huffman on the
basis that the plaintiff was not seeking relief from the past state actions, but relief from the prospective
enforcement of the statute. Id. at 709-11. Here, Executive Arts perceived the possibility of the prospective
future enforcement of the zoning law against itself once the state court had declared Executive Arts to be
No. 02-2183                 Executive Arts Studio v. City of Grand Rapids                                                 Page 6


a regulated use under the City’s zoning law, preemptively filing in federal    court attacking the
constitutionality of the Ordinance before any enforcement action could occur.4
        It is true that Executive Arts’s initial complaint asked for inappropriate relief that would clearly
have interfered with the ongoing state judicial proceedings, particularly the request for a declaration that
no variance was required and that the state court’s interpretation of the zoning statute was wrong. However,
the district court required Executive Arts to amend the complaint to focus upon the constitutionality of the
final legislated ordinance rather than the ongoing state proceedings. Therefore, “[a]s a challenge to
completed legislative action, [Executive Arts’s] suit represents neither the interference with ongoing judicial
proceedings against which Younger was directed, nor the interference with an ongoing legislative process
against which [the] ripeness holding in Prentis was directed.” New Orleans Public Service, Inc., 491 U.S.
at 372.
        In an even murkier case for Younger abstention than the one presently before us, the Supreme Court
stated with regard to a federal statutory challenge to an administrative body’s ongoing rate-making policies
that “[the constitutional challenge] is, insofar as our policies of federal comity are concerned, no different
in substance from a facial challenge to an allegedly unconstitutional statute or zoning ordinance - - which
we would assuredly not require to be brought in state courts.” Id. In this case, the substantive content to
which the Supreme Court referred, an allegedly unconstitutional zoning ordinance, is directly at issue.
Therefore, while “[i]t is true, of course, that the federal court’s disposition of [this] case may well affect,
or for practical purposes, pre-empt, a future - - or . . . even a pending - - state-court action . . . there is no
doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.”
Id. at 373. The City has simply not explained how the district court’s acceptance of jurisdiction over the
constitutional issues contained within the amended complaint would have interfered, except as a collateral
by-product, with any ongoing state judicial proceedings. Therefore the City has not shown this court why
the exceptional abstention doctrine of Younger should be applied.
       2. Rooker-Feldman. This court reviews the district court’s decision on a motion to dismiss
pursuant to the Rooker-Feldman doctrine de novo. Hood v. Keller, 341 F.3d 593, 597 (6th Cir. 2003).
        Rooker-Feldman is the name for the doctrine which holds that federal courts below the United States
Supreme Court may not exercise appellate jurisdiction over the decisions and/or proceedings of state courts,
including claims that are “inextricably intertwined” with issues decided in state court proceedings. D.C.
Ct. of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983); Peterson Novelties, Inc., 305 F.3d at 390-91. This
court has adopted the rationale “that a federal claim is ‘inextricably intertwined’ with a state court judgment
and thus implicates Rooker-Feldman when ‘the federal claim succeeds only to the extent that the state court
wrongly decided the issues before it[.]’” Peterson Novelties, Inc., 305 F.3d at 393 (citations omitted).
        In this case, the issues resolved in the Kent County Circuit Court opinion of October 11, 2001, which
were decided, i.e., those involving the internal application of Michigan law to the City’s zoning ordinances
and the denial of a variance from those regulations, could not be considered error by the federal suit’s
success. It is possible to rule that the ordinance is unconstitutional without calling into question the district
court’s decisions that 1) the ordinance applied to Executive Arts; 2) therefore Velvet Touch was a regulated
use under the zoning law; and 3) the zoning board properly denied a variance under the zoning code and
Michigan law. Thus, no appellate jurisdiction over a state court decision is present and the federal claims



    4
      We do not consider this case to be one in which a private party has initiated a state administrative or judicial enforcement
action prior to the bringing of a federal suit by the regulated party, and we therefore need not reach the issue of whether Younger
would apply in such a situation. While Vredevoogd’s state court complaint could be construed as a private enforcement action,
we accept the state court’s treatment of his initial appeal as an appeal from the BZA’s determination that Executive Arts was not
required to seek a zoning variance. Thus for Younger purposes, when Executive Arts brought suit in federal court, it was not
defending itself in an enforcement proceeding brought by a private party or by the city.
No. 02-2183                 Executive Arts Studio v. City of Grand Rapids                                              Page 7


are not “inextricably intertwined” with the state court judgment on the issues that were litigated before the
Kent County Circuit Court.
        Particularly instructive on this issue is Hood v. Keller, 341 F.3d 593 (6th Cir. 2003). James Hood
was a pastor who challenged the constitutionality of an Ohio statute which required a permit to use the
statehouse grounds. The pastor had entered these grounds to preach and/or hand out religious tracts, for
which he was subsequently convicted of criminal trespass. Id. at 596. At his state criminal trial, Hood
raised the defense that the statute violated his First and Fourteenth Amendment rights. The Ohio court
found against him on the constitutionality issue and Hood was convicted. Subsequently, Hood filed in
federal district court claiming that the statute was unconstitutional and requested an injunction enjoining
the state and its agents from enforcing the statute against himself. The district court dismissed Hood’s
federal action on the basis of the Rooker-Feldman doctrine due to the prior rulings in the criminal
proceedings. This court reversed.
         In reversing, this court found that Rooker-Feldman is not applicable where:
         the plaintiff’s claim is merely “a general challenge to the constitutionality of the state law
         applied in the state action,” rather than a challenge to the law’s application in a particular
         state case. In determining the applicability of the Rooker-Feldman doctrine, federal courts
         “cannot simply compare the issues involved in the state-court proceeding to those raised in
         the federal-court plaintiff’s complaint,” but instead “must pay close attention to the relief
         sought by the federal-court plaintiff.”
Id. at 597 (citations omitted)(emphasis in original).
         Since Hood was not requesting that the federal court review his conviction, but was asking the court
to assure that he would no longer be subjected to the law’s unconstitutional effects, Rooker-Feldman was
inapplicable. Here, Executive Arts began litigating a challenge to the constitutionality of the ordinance in
federal court while still seeking a variance under the ordinance before the ZBA. Such a posture is more
likely to implicate Younger abstention, which has already been addressed, rather than Rooker-Feldman.
However, without regard to the outcome of the particular variance request for Executive Arts’s chosen
locale, Executive Arts was still subject to the ordinance citywide when it filed this suit. Just as Hood sought
relief so that he could continue his protected First Amendment activity without state interference no matter
what the prior specific decision in his case was, Executive Arts asked the district court for prospective relief
from the ordinance so that it could continue its activities unobstructed in the City, without regard to the
specific location.
        Even if the constitutional issue in the specific application was decided in state court, Hood makes
clear that it would not foreclose Executive Arts’s general constitutional attack. If Executive Arts had been
forced to displace due to some unforseen occurrence outside the specific application of the zoning law in
the case before the state court, it would still have been subjected to the ordinance in trying to locate
anywhere throughout the City. The application of the zoning law in state court for the particular locale
where Executive Arts currently conducts business, and the general challenge to the constitutionality of the
ordinance, are therefore distinct issues and not “inextricably intertwined” with the state court decisions on
the specific application of the ordinance. The Kent County Circuit Court ably recognized this in its own
opinion when it felt bound to reach over from the application of 5the City’s regulations and Michigan law
to additionally address the wholly separate constitutional issues.


    5
      Once again, the original complaint inappropriately requested that the district court declare that Velvet Touch was not an
adult bookstore as defined in the ordinance and that the court should declare that Executive Arts was not required to obtain a
variance under the zoning law, which were both issues of state law decided by the Kent County Circuit Court. Such a request
squarely implicates Rooker-Feldman as it is a direct attack on the issues decided by the state court. See Pieper v. American
Arbitration Assoc., Inc., 336 F.3d 458, 460-61 (6th Cir. 2003). However, the district court required Executive Arts to amend the
No. 02-2183                  Executive Arts Studio v. City of Grand Rapids                                                    Page 8


         The Rooker-Feldman doctrine asks: is the federal plaintiff seeking to set aside a state
         judgment, or does he present some independent claim, albeit one that denies a legal
         conclusion that a state court has reached in a case to which he was a party? If the former,
         then the district court lacks jurisdiction; if the latter, then there is jurisdiction and state law
         determines whether the defendant prevails under principles of preclusion.
Id. at 599 (quoting Gash Assocs. v. Rosemont, 995 F.2d 726, 728 (7th Cir. 1993)).
        Executive Arts’s request for relief is an independent claim, although the federal court may ultimately
deny the legal conclusions reached in the state court. Therefore, Rooker-Feldman is not a bar to
jurisdiction.
       3. Claim preclusion. As indicated in Hood, Rooker-Feldman and claim preclusion are distinct
concepts. Id. Under 28 U.S.C. § 1738, federal courts are required to give the judgments of state courts the
same preclusive effect as they are entitled to under the laws of the state rendering the decision, which
includes § 1983 actions vindicating constitutional rights. Miagra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 85 (1984).
        “The preclusive effect of a state court judgment is determined by that state’s law.” Peterson
Novelties, Inc., 305 F.3d at 394. In Michigan, claim preclusion “bars a second, subsequent action when
(1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and
(3) the matter in the second case was, or could have been, resolved in the first.” Adair v. State, 680 N.W.2d
386, 396 (Mich. 2004). Michigan broadly construes the doctrine of claim preclusion. Id. However, with
regard to the second requirement, there is little chance that privity could be found in the first action between
Vredevoogd and the City as their interests were opposed at that point, while those of the City and Executive
Arts were aligned.
        As recently as two years ago, it was noted that it is not clear that Michigan permits non-mutual claim
preclusion. Peterson Novelties, Inc., 305 F.3d at 395. However, until the Michigan Supreme Court speaks
definitively upon the matter, “[Michigan] recognize[s] that for res judicata to apply, both actions must
involve the same parties or their privies. ‘The same parties’ means adversarial parties. Generally,
codefendants are not adversaries for the purposes of res judicata, even though a codefendant could have filed
a cross-claim against the other defendant.” Eyde v. Charter Township of Meridian, 324 N.W.2d 775, 778-79
(Mich. Ct. App. 1982). “Adverse parties have been defined as those who, by the pleadings, are arrayed on
opposite sides. Opposite sides in this sense is not restricted to the plaintiffs against the defendants, since
codefendants having a controversy inter se may come within such a classification.” Gomber v. Dutch Maid
Dairy Farms, Inc., 202 N.W.2d 566, 570 (Mich. Ct. App. 1972). Here, the City and Executive Arts did not
have any controversy between themselves when the first decision was rendered before the district court took
up jurisdiction of the constitutional issues in the federal case. Therefore, there can be no claim preclusion.6
B. Constitutionality of Ordinance 77-31 and 01-07. Having determined that jurisdiction over this case
was properly taken by the district court, we now turn to the merits of the underlying dispute between the
City and Executive Arts, over which the district court granted summary judgment to Executive Arts. The
district court’s grant of summary judgment is reviewed de novo, using the same standards employed by the


complaint, adroitly confining itself to jurisdiction over the constitutional issues, which collaterally could impact the state court’s
decisions, rather than entertaining any reinterpretation or application of the City’s regulations in light of the Constitution, which
Executive Arts requested in the first complaint. See Executive Arts Studio, Inc. v. City of Grand Rapids, 179 F. Supp. 2d 755,
757 (W.D. Mich. 2001).
    6
      Due to the district court’s limitation of the action solely to the constitutionality of the Ordinance, it is highly unlikely that
this court would be bound by claim preclusion from addressing the constitutionality of the prospective future enforcement of the
Ordinance. See discussion supra of Wooley v. Maynard, 430 U.S. 705 (1977); Hood v. Keller, 341 F.3d 593 (6th Cir. 2003).
No. 02-2183             Executive Arts Studio v. City of Grand Rapids                                  Page 9


district court, but viewing all the factual evidence and drawing all reasonable inferences in favor of the non-
moving party. United States v. Miami Univ., 294 F.3d 797, 805 (6th Cir. 2002). “Summary judgment is
appropriate where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’” Id.
        1. Facial challenge. Both parties agree that Ordinance 77-31, its amendment, and the zoning
regulations as originally enacted were modeled upon those found to be constitutionally permissible in Young
v. American Mini Theatres, Inc., 427 U.S. 50 (1976). In Young, the Supreme Court found that governments
can use zoning law consistent with the First Amendment to ameliorate the secondary effects of adult
establishments in order “to prevent crime, protect the city’s retail trade, maintain property values, and
generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the
quality of urban life,’ [but] not to suppress the expression of unpopular views.” City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 48 (1986). If the zoning ordinance is designed “to serve a substantial
governmental interest and allows for reasonable alternative avenues of communication” then there are no
First Amendment issues in trying to control the secondary effects through zoning. Id. at 52. However, the
ordinance must still be narrowly tailored “to affect only that category of [establishments] shown to produce
the unwanted secondary effects.” Id. at 52.
        Here, the City facially had a proper known, and constitutionally pre-approved, substantial
governmental interest in controlling the secondary effects from those types of establishments, including
adult bookstores, which were enumerated by the City in the zoning regulations. Additionally, although this
ordinance fails to provide for reasonable alternative avenues of communication when actually applied as
shall be discussed infra, facially, the restrictions in the ordinance have already been upheld by the Supreme
Court, albeit in the much larger urban metropolis of Detroit. However, a facial challenge to the
constitutionality of the “segment or section” language as used in Michigan does have some validity.
        Governments are not required to produce their own studies and may rely upon the experience of
other cities in designing their ordinances, even if those ordinances differ in substantial respect. Id. at 51.
However, since the ordinance as interpreted by the state court encompasses multiple establishments which
would never be defined as adult bookstores in everyday English, such as a Walden’s or Borders which carry
“a section or segment” of adult reading material, it would have been appropriate for the City to have
produced some type of evidence of secondary effects from these establishments. Yet the City has cited no
basis, study or third party experience that would lead one to believe that such a broad ordinance is needed
to control undesirable blight rather than merely being an attempt to control undesired speech. This
ordinance is simply not narrowly tailored when its language sweeps up mainstream bookstores, as it is then
evident that the ordinance is controlling the dissemination of objectionable reading material rather than the
effects upon a neighborhood from the businesses that disseminate and specialize in such material.

         2. As applied. However, even if we were able to find that the “ordinance is ‘narrowly tailored’ to
affect only that category of [establishments] shown to produce the unwanted secondary effects, thus
avoiding the flaw that proved fatal to the regulations in Schad v. Borough of Mount Ephraim, 452 U.S. 61
(1981),” Renton, 475 U.S. at 52, it appears evident that the ordinance is fatally flawed when applied. While
the district court expressed some reservations about finding an ordinance unconstitutional that was modeled
upon one already upheld by the Supreme Court, it must be remembered that the Detroit ordinance in Young
v. American Mini-Theaters, Inc. “burdened free speech only slightly because of the ‘myriad of locations’
in the City available for such use.” CLR Corp. v. Henline, 702 F.2d 637, 638 (6th Cir. 1983). “Although
both the Supreme Court’s decisions on this issue have held [ ] zoning ordinances to be constitutional, the
Sixth Circuit has made it clear that each case must be decided according to its specific facts.” Christy v.
City of Ann Arbor, 824 F.2d 489, 491 (6th Cir. 1987). “The [Supreme] Court [has] noted that the ‘situation
would be quite different if [an] ordinance had the effect of suppressing, or greatly restricting access to,
lawful speech.’” Id. at 491 (quoting Young, 427 U.S. at 71 n.35). “The Renton ordinance was upheld
No. 02-2183                  Executive Arts Studio v. City of Grand Rapids                                                  Page 10


because the evidence demonstrated . . . that the city had left open 5 percent (520 acres) of its land for the
use of adult businesses.” Id.
         By contrast, Executive Arts has appropriately brought this challenge to the ordinance due to the harm
that it suffers through the severe limitation upon the number of sites Executive Arts is permitted to carry
on its First Amendment protected activities within the City. Without regard to any right Executive Arts
might conceivably possess in the business site currently at issue, it is undisputed that Executive Arts is
currently foreclosed from opening its store in all but around a half dozen possible sites in a City with over
2,500 parcels of commercially useable real estate.7 This is wholly inadequate to provide for reasonable
alternative avenues of communication. See Renton, 475 U.S. at 53 (“the ordinance leaves some 520 acres,
or more than five percent of the entire land area of Renton, open to use as [ ] adult sites”); CLR Corp., 702
F.2d at 639 (unconstitutional zoning ordinance only permitted two to four restricted uses in a 2500 foot
frontage area for a city of 70,000); Dia v.City of Toledo, 937 F. Supp. 673, 678 (N.D. Ohio 1996)(“Courts
have generally found the number to be inadequate if fewer than a dozen sites, or under 1% of the city
acreage, is potentially available”).
        Therefore, when this ordinance is applied to Executive Arts’s situation, it is evident that it fails
constitutional scrutiny. This can generally only be perceived when Executive Arts sought a site for its
business, for absent the additional regulated activities from which Executive Arts must maintain a distance,
along with the increased number of these establishments due to the broad use of “segment or section” in the
ordinance, it would appear that sufficient sites would potentially be available. There is no doubt that the
City enacted these ordinances in the absolute good faith belief that they were proper acts to address the
secondary effects of adult establishments like Executive Arts. However, when a valid constitutional
ordinance from a city the size of Detroit is applied to these facts in a city the size of Grand Rapids, the
unconstitutional result of severely limiting the number of these adult establishments rather than controlling
their effects through dispersal occurs. Detroit’s ordinance “did not affect the number of adult
[establishments] that could operate in the city; it merely dispersed them.” Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 72 (1981). Grand Rapids zoning Ordinances 77-31 and 01-07, as applied, not only
disperse adult bookstores, but severely limit their number.
C. Overbreadth of the injunctive relief. The City claims that if the original and amended Article 25 of
the zoning regulations, which define an adult bookstore, are unconstitutional, the district court should have
limited itself to striking down only the “segment or section” language in the definition as the constitutionally
offending portion, leaving intact the rest of the adult bookstore definition. When reviewing the decision of
a district court to grant or to deny a request for the issuance of a permanent injunction, the scope of
injunctive relief is reviewed for an abuse of discretion. Secretary of Labor v. 3RE.Com, Inc., 317 F.3d 534,
537 (6th Cir. 2003).
        The City is correct that a federal court must “never formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.” Brockett v. Spokane Arcades, 472 U.S.
491, 501 (1985). In Brockett, a plaintiff claimed that an obscenity statute was overbroad as it defined
“prurient interest” to include an incitement to “lasciviousness or lust.” Id. at 494. The plaintiff claimed that
“lust” included normal sexual interest, and therefore the statute was constitutionally overbroad, to which
the lower court agreed in granting an injunction against the enforcement of the statute. Id. at 494. However,
the Supreme Court reversed the injunction since the remedy itself was too broad. The Supreme Court held
that even if a proper narrowing construction could not be given to the word “lust,” the lower court should
have excised the offending word alone since the statute as a whole was constitutional. Id. at 504-05.




    7
      Like the district court, we find that quibbling over single-digit differences in site counts between the parties is an immaterial
factual difference.
No. 02-2183                 Executive Arts Studio v. City of Grand Rapids                                             Page 11


         One difficulty in agreeing with the City is that it is not clear, at least enough to overcome an abuse
of discretion standard, that the “segment or section” language of the ordinance is the facially defective
unconstitutional component of the zoning regulations, like the incitement to “lust” language in Brockett’s
obscenity statute. We have affirmed the challenge to the ordinance for failing to be narrowly tailored as the
City produced no evidence that such a broad definition of adult bookstores was needed in order to control
adverse secondary effects, and this broad definition then led to a severe limitation on the number of adult
bookstores when applied to Executive Arts. It is conceivable that the City potentially could have chosen
to broadly define adult bookstores, but then permitted these broadly defined establishments over a far
greater range of the City by loosening restrictions in other areas of the zoning code. Whether the City in
narrowly tailoring its ordinance desires to tighten the definition of adult           bookstores, or loosen the
restrictions upon their location, is a matter within the purview of the City.8 The district court should not
be in the position of making that choice. We therefore cannot find that the district court abused its
discretion in enjoining the entire definition of an adult bookstore in the two ordinances rather than excising
a small segment of it.
                                                  III. CONCLUSION
        As Article 25 of the City of Grand Rapids Ordinances 77-31 and 01-07 fails to narrowly tailor the
definition of adult bookstore, leading to the unconstitutional restriction on the ability of Executive Arts to
disseminate its First Amendment protected material, the district court is AFFIRMED.




    8
     The City has since made its preference known in a third revision of the ordinance by a significant change in the definition
of adult bookstore which strikes out the “segment or section” language and increases the amount of inventory which triggers
regulation, thus tightening the adult bookstore definition.
