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                                                       New Mexico Compilation
                                                     Commission, Santa Fe, NM
                                                    '00'04- 10:09:39 2013.10.14
         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-044

Filing Date: September 12, 2013

Docket No. 33,693

STATE OF NEW MEXICO,
CITY OF ALBUQUERQUE,

       Plaintiffs-Respondents,

v.

PANGAEA CINEMA LLC d/b/a
GUILD CINEMA LLC, KEIF
HENLEY, registered agent,

       Defendants-Petitioners.

ORIGINAL PROCEEDING ON CERTIORARI
Carl J. Butkus, District Judge

ACLU of New Mexico
Laura Louise Schauer Ives
Albuquerque, NM

Morrissey Lewis L.L.C.
Kari T. Morrissey
Albuquerque, NM

for Petitioners

John E. Dubois, Assistant City Attorney
Albuquerque, NM

for Respondents

                                      OPINION

CHÁVEZ, Justice.

{1}    On a November weekend in 2008, an art-house movie theater in Albuquerque’s Nob

                                          1
Hill neighborhood hosted a film festival. The Nob Hill Business Association described the
event as “a success, not only in driving [customer] traffic to the area, but also in the quality
and caliber of those customers.” The Association specifically noted that there were “almost
no negative comments” and that it hoped the film festival would continue to present the
festival. Several local business owners stated that the festival had positive effects on the
neighborhood, including increased sales and broader public awareness of the businesses in
the area. The festival did not cause any crime or other negative effects in the neighborhood.

{2}     The festival was titled “Pornotopia,” and it featured at least one erotic or
pornographic film. Other than the weekend of Pornotopia, the theater showed non-
pornographic films. Despite Pornotopia’s positive impact on the neighborhood and the
generally non-adult nature of the hosting theater, the theater was convicted of a zoning
violation for operating an “Adult Amusement Establishment” in an improper zone. See
Albuquerque, N.M., Code of Ordinances, § 14-16-1-5(B) (1974, amended 2012) (defining
“adult amusement establishment”). The theater argues before this Court that the conviction
violated its state and federal constitutional rights to free speech.

{3}      An “adult amusement establishment” is defined in the Albuquerque Code of
Ordinances as “[a]n establishment such as [a] . . . theater . . . that provides amusement or
entertainment featuring . . . films, motion pictures . . . or other visual representations or
recordings characterized or distinguished by an emphasis on . . . specified anatomical areas
or . . . specified sexual activities.” Id. Consistent with our responsibility to interpret
ordinances to avoid constitutional concerns, we interpret the term “adult amusement
establishment” to apply only to traditionally adult businesses. Because this category does
not include theaters that rarely or only occasionally feature adult entertainment, the theater
in this case was not an adult amusement establishment, and it did not commit a zoning
violation. Therefore, we do not reach the constitutional questions raised by the theater.

BACKGROUND

{4}     Defendant Pangaea Cinema (“the Guild”) is a limited liability company that does
business as the Guild Cinema in the Nob Hill area of Albuquerque. The Guild is an art-
house theater that usually shows non-pornographic independent films. However, on the
weekend of November 14-16, 2008, the Guild hosted an erotic film festival called
“Pornotopia.” This was the second time that the Guild had presented Pornotopia, and the
festival was apparently intended to be an annual event.

{5}      The Guild is located in an area of Albuquerque that is zoned C-2, or “Community
Commercial.” Albuquerque does not permit adult amusement establishments in C-2 zones.
See Albuquerque, N.M., Code of Ordinances, § 14-16-2-17(A) & (B) (1974, amended 2012)
(not listing adult amusement establishments as either permissive or conditional use in C-2
zones); Albuquerque, N.M., Code of Ordinances, § 14-16-1-3(B) (1974, amended 1980)
(“Any use not designated a permissive or conditional use in a zone is specifically prohibited
from that zone, except as otherwise provided herein.”). The City defines an “adult

                                               2
amusement establishment” as

        An establishment such as an auditorium, bar, cabaret, concert hall, nightclub,
        restaurant, theater, or other commercial establishment that provides
        amusement or entertainment featuring one or more of the following:

                (1)    A live performance, act or escort service distinguished or
        characterized by an emphasis on the depiction, description, exposure, or
        representation of specified anatomical areas or the conduct or simulation of
        specified sexual activities; or

                (2)      Audio or video displays, computer displays, films, motion
        pictures, slides or other visual representations or recordings characterized or
        distinguished by an emphasis on the depiction, description, exposure or
        representation of specified anatomical areas or the conduct or simulation of
        specified sexual activities.

Section 14-16-1-5(B).

{6}       The City of Albuquerque apparently became concerned that the Guild’s screening
of the films in Pornotopia might constitute a zoning violation. Two zoning enforcement
inspectors visited the festival and watched a film entitled “Couch Surfers, Trans Men in
Action.” The parties agree that the film was characterized or distinguished by an “emphasis
on . . . specified anatomical areas or . . . specified sexual activities” as described in Section
14-16-1-5(B). On the basis of this screening, the City determined that the Guild was
operating as an adult amusement establishment in an area that was not zoned for adult
entertainment.

{7}     In December 2008, the State of New Mexico and the City of Albuquerque charged
the Guild with a criminal zoning violation in metropolitan court. (For clarity, we refer to the
prosecuting body either as “Albuquerque” or “the City.”) The metropolitan court found the
Guild guilty, and the Guild appealed to the Second Judicial District Court. The district court
held that the Guild had committed a zoning violation and that the zoning ordinances were
constitutional as they applied to the Guild. The district court also imposed a criminal fine
of $500. The Court of Appeals affirmed the Guild’s conviction. City of Albuquerque v.
Pangaea Cinema LLC, 2012-NMCA-075, ¶ 1, 284 P.3d 1090, cert. granted, 2012-
NMCERT-007.

DISCUSSION

{8}     The parties agree on the salient facts of the case, and our role is to interpret the




                                               3
Albuquerque ordinance at issue.1 “Interpretation of municipal ordinances and statutes is a
question of law that we review de novo.” Stennis v. City of Santa Fe, 2008-NMSC-008, ¶
13, 143 N.M. 320, 176 P.3d 309. The Guild has also made constitutional arguments, and to
the extent that we address these arguments, we consider them de novo. State v. DeGraff,
2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61.

{9}      Cities are generally allowed to impose different zoning requirements on adult theaters
than on mainstream theaters.2 Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 71-73 (1976)
(plurality opinion); id. at 74 (Powell, J., concurring in the judgment and portions of the
opinion). Even though such zoning ordinances categorize theaters based on the content they
exhibit, courts may analyze the ordinances as content-neutral time, place, and manner
restrictions. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). The idea is
that these zoning restrictions target not the content of the films shown, but rather the
“secondary effects” caused by the accumulation of adult amusement establishments in a city.
Id.

{10} Secondary effects were described by the Young and Renton courts. In Young, the
City of Detroit adopted an ordinance stating that a concentration of adult businesses “tends
to attract an undesirable quantity and quality of transients, adversely affects property values,
causes an increase in crime, especially prostitution, and encourages residents and businesses
to move elsewhere.” 427 U.S. at 55. In Renton, a similar ordinance was “designed 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, not to suppress the expression of unpopular views.” 475 U.S. at 48
(alterations in original) (internal quotation marks and citation omitted).

{11} Because these ordinances are treated as time, place, and manner restrictions, id. at
47, they are valid if (1) they are content-neutral, (2) “they are narrowly tailored to serve a
significant governmental interest,” and (3) “they leave open ample alternative channels for
communication of the information.” Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984). Cities carry a light evidentiary burden in justifying these ordinances, and


       1
         We briefly note the City’s argument that the parties’ “stipulations . . . preclude the
necessity of statutory interpretation.” This is extremely unusual, as the parties did not
stipulate to the meaning of the ordinance. Even if they had done so, we would retain an
independent responsibility to interpret the ordinance. “It is emphatically the province and
duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803).
       2
        Laurence Tribe has dubbed this practice “erogenous zoning.” Laurence H. Tribe,
American Constitutional Law 934 (2d ed. 1988); see also Kathleen M. Sullivan, Sex, Money,
and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepp.
L. Rev. 723, 727 n.38 (2001) (crediting Tribe with coining the term).

                                               4
they have some flexibility in designing them. See City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425, 451 (2002) (Kennedy, J., concurring in the judgment) (“[W]e have
consistently held that a city must have latitude to experiment, at least at the outset, and that
very little evidence is required.”). Cities may choose to disperse their adult businesses or
concentrate them. Renton, 475 U.S. at 52. They may rely on studies from other cities rather
than producing their own evidence, “so long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem that the city addresses.” Id. at 51-52.

{12} It is not clear precisely which secondary effects Albuquerque fears will result from
the presence of adult amusement establishments; the ordinance does not include legislative
findings, and the City’s briefing did not specify the evidence on which the Albuquerque City
Council relied in enacting the ordinance. Nevertheless, the Albuquerque ordinance in
question is similar to the ordinances upheld in other cases, including Young and Renton, and
the Guild does not challenge its constitutionality except as it is applied in this case.

{13} There is no dispute that “Couch Surfers” was an adult “amusement or entertainment”
film under the terms of Section 14-16-1-5(B). However, this is a zoning case, and the central
question is not whether the film was classified as adult amusement, but whether the theater
was an adult amusement establishment within the meaning of the ordinance.

{14} The parties agree that the Guild theater shows adult films only rarely, at most one
weekend per year. Consistent with that reality, the Guild is an ordinary-looking art-house
theater. It has none of the trappings of an adult theater; there are no neon signs proclaiming
“Girls! Girls! Girls!” or “XXX.” Nothing about the Guild appears to be seedy, unsavory,
or likely to drive down property values. It is undisputed that Pornotopia did not, in fact,
result in any negative secondary effects in the Nob Hill neighborhood. In short, while the
City of Albuquerque may believe that adult theaters cause negative secondary effects, the
Guild is not an adult theater either in function or appearance.

{15} Our role in interpreting an ordinance is to look for the intent of the legislative body.
See New Mexicans for Free Enter. v. The City of Santa Fe, 2006-NMCA-007, ¶ 59, 138
N.M. 785, 126 P.3d 1149 (“We construe an ordinance as we would a statute, giving effect
to the intent and purpose of those who enacted it . . . .”). Presumably, the intent of the
Albuquerque City Council was to avoid or quarantine the negative secondary effects of adult
amusement businesses. The ordinance contains no indication that it should apply to venues
that only occasionally show adult films. To the contrary, the nature of zoning ordinances
suggests that the restrictions on adult entertainment establishments were intended to regulate
businesses of a clearly adult nature. “Zoning rules generally only apply to the regular use
of a building,” not occasional deviations from those uses. Schmitty’s City Nightmare, LLC
v. City of Fond du Lac, 391 F. Supp. 2d 745, 756 (E.D. Wis. 2005) (“[A] residential house,
for example, does not become zoned as a commercial hotel by virtue of having the
occasional overnight guest.”).

{16}   In addition, we consider the ordinary meaning of the terms used in the ordinance.

                                               5
See Whitely v. New Mexico State Pers. Bd., 1993-NMSC-019, ¶ 5, 115 N.M. 308, 850 P.2d
1011 (“The words of a statute . . . should be given their ordinary meaning absent clear and
express legislative intention to the contrary.”). The Guild is simply not an adult amusement
establishment in the ordinary meaning of the term. If we were to stand on Central Avenue
and ask pedestrians for directions to the nearest adult theater, it is unlikely that they would
direct us to the Guild. By the same token, without some clearer indication of legislative
intent, we cannot simply assume that the Albuquerque City Council meant to designate the
Guild as an “adult amusement establishment” because it showed adult films during one
weekend.

{17} Following the City’s suggested interpretation would lead to absurd results. See State
v. Padilla, 1997-NMSC-022, ¶ 6, 123 N.M. 216, 937 P.2d 492 (“We read statutes to avoid
absurd or unreasonable results.” (internal quotation marks and citations omitted)). For
example, a professor at the University of New Mexico might screen a pornographic film
during a course on human sexuality or the like; we cannot imagine that the screening would
render the lecture hall an “adult amusement establishment.” In the words of the federal
district court for the Eastern District of Wisconsin,

       One would not call a bar a “martini bar” if it served martinis only once a
       year, just as one would not call a club a “jazz club” if 99% of its music was
       rock and roll. Suffice it to say that in the English language, when an
       adjective, such as “adult” (as used here), modifies a noun that is a physical
       location (a structure or building which features topless dancers, strippers,
       male or female impersonators, or similar entertainers), we assume that the
       adjective has temporal permanence just as the physical structure does.

Schmitty’s, 391 F. Supp. 2d at 757. The Albuquerque city ordinance does not specify exactly
how many pornographic films a theater must show to qualify it as an adult amusement
establishment, and we do not need to set such a standard now. We can say with confidence,
however, that the ordinance does not reach the type of very occasional showing at issue in
this case. One weekend of erotic films per year does not an adult theater make.

{18} There is another reason to follow this interpretation of the statute. “[W]e seek to
avoid an interpretation of a statute that would raise constitutional concerns.” Chatterjee v.
King, 2012-NMSC-019, ¶ 18, 280 P.3d 283. The Guild has raised significant questions
about the constitutionality of a city ordinance broad enough to treat the Guild as an adult
amusement business. The United States Supreme Court has rejected constitutional
challenges to “erogenous zoning” ordinances, but the businesses at issue in those cases were
unambiguous, full-time adult amusement establishments. See Alameda Books, 535 U.S. at
432 (plurality opinion) (respondents rented and sold “sexually oriented products” and
provided viewing booths); Renton, 475 U.S. at 45 (theater intended to “exhibit feature-length
adult films”); Young, 427 U.S. at 59 n.16 (“Neither respondent has indicated any plan to
exhibit pictures even arguably outside the coverage of the ordinances.”). The United States
Supreme Court has never considered the constitutionality of adult amusement ordinances as

                                              6
they are applied to mainstream or art-house theaters that occasionally show adult films.

{19} However, several lower courts have concluded that it is unconstitutional to place
zoning restrictions on businesses that occasionally feature adult entertainment. In Tollis, Inc.
v. San Bernardino County, 827 F.2d 1329, 1331, 1333 (9th Cir. 1987), modification on other
grounds recognized by Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719, 722-23
(9th Cir. 2000), reversed on other grounds by Alameda Books, 535 U.S. at 429 (plurality
opinion), 444 (Kennedy, J., concurring in the judgment), the Court of Appeals for the Ninth
Circuit affirmed a permanent injunction enjoining enforcement of the county’s adult
amusement business zoning ordinance. The San Bernardino County ordinance, like the one
at issue in this case, “failed to define the extent of use for showing adult films that would be
necessary to render a theater an ‘adult business.’” Id. at 1331. The county construed the
ordinance to reach any business that engaged in a single showing of an adult film. Id. The
Ninth Circuit held that the ordinance, as construed by the county, failed the narrow tailoring
prong of the Renton time, place, and manner analysis. Id. at 1333. It observed that “the
County . . . presented no evidence that a single showing of an adult movie would have any
harmful secondary effects on the community,” and added that it did not “see how the County
could make such a showing, since it is difficult to imagine that only a single showing ever,
or only one in a year, would have any meaningful secondary effects.” Id.

{20} Relying on Tollis, the California Supreme Court held that it would be
unconstitutional for the City of Long Beach to classify a theater as an adult establishment
based on a single showing of an adult film. People v. Superior Court (Lucero), 774 P.2d
769, 775 (Cal. 1989). The California court noted that the Long Beach ordinance had made
no findings or claims about “significant deleterious effects on the community arising out of
a single showing of an adult film.” Id.

{21} Courts have expressed the concern that when municipalities include ordinary,
generally non-adult amusement businesses in the sweep of their “erogenous zoning”
ordinances, they risk losing their focus on secondary effects, and may instead
unconstitutionally target the content of the adult entertainment. For example, in Executive
Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 796 (6th Cir. 2004), the Court of
Appeals for the Sixth Circuit held that an ordinance was not narrowly tailored because it
included bookstores that had a “‘segment or section’” devoted to adult material. The court
expressed concern that the ordinance could encompass “multiple establishments which
would never be defined as adult bookstores in everyday English,” even though the city had
produced no evidence that adult sections in ordinary bookstores could produce negative
secondary effects. Id. The court concluded that an “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.” Id. at 796-97.

{22}   Similarly, in Pensack v. City & County of Denver, 630 F. Supp. 177, 181 (D. Colo.

                                               7
1986), the federal district court for the District of Colorado held that a Denver ordinance
denied due process to the owner of a bakery that sold both erotic and non-erotic baked
goods. The City of Denver apparently applied the zoning ordinance only to stores that used
at least 10% of their floor area to sell erotic items. Id. at 179. The court expressed concerns
that even with this threshold in place, zoning authorities would have to “monitor the films
in a regular theater or examine the books in an ordinary bookstore to determine the quantity
of sexually specific content in all that is shown and sold.” Id. at 181.

{23} Although our reading of the Albuquerque city ordinance eliminates the need for us
to address the constitutional questions raised by the Guild, we are acutely aware of the
constitutional backdrop to this case. Not all courts that have considered the issue agree that
it is unconstitutional to zone a business as “adult” based on a single or occasional instance
of adult entertainment. See BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 607 (8th Cir.
2001) (upholding city’s application of adult zoning ordinance to a single adult amusement
performance). Nonetheless, enough courts have found this type of application
unconstitutional that our canon of constitutional avoidance comes into play. When possible,
we must construe a statute or ordinance “‘so as to avoid not only the conclusion that it is
unconstitutional, but also grave doubts upon that score.’” State v. House, 2001-NMCA-011,
¶ 41, 130 N.M. 418, 25 P.3d 257 (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401
(1916)).

{24} The City voiced concern that if the Guild prevails, more theaters in areas that are not
zoned for adult amusement establishments will “show adult entertainment on a routine but
not constant basis” to avoid the bite of the zoning ordinances. If Albuquerque is concerned
that mainstream theaters will start showing adult entertainment three days per week, as it
claims in its brief, the City Council can amend the ordinance to set a threshold level of adult
amusement material that would classify a business as an “adult amusement establishment.”
In the case of a movie theater, this classification could be based on the proportion of the
theater’s films that are pornographic, the number of such films shown per week or month,
the nature of the films that receive top billing, or the percentage of revenues attributable to
sexually explicit fare. As Judge Sutin noted in his dissent below, the City has already set
this type of threshold in its definition of “adult store.” Pangaea, 2012-NMCA-075, ¶ 63
(Sutin, J., dissenting) (“Section 14-16-1-5(B) . . . defines an ‘adult store’ as ‘[a]n
establishment having 25% or more of its shelf space or square footage devoted to the
display, rental, sale[,] or viewing of adult material for any form of consideration.’”
(alterations in original)).

{25} However, if the City Council wishes to expand the ordinance so that rare, occasional,
or incidental exhibitions of adult material will render a business an “adult amusement
establishment,” it must produce some evidence linking these occasional showings to
negative secondary effects. See Exec. Arts Studio, 391 F.3d at 796 (stating that the city
“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” and concluding that the “ordinance
[was] simply not narrowly tailored”); Tollis, 827 F.2d at 1333 (holding that the ordinance

                                              8
was not narrowly tailored because the county “presented no evidence that a single showing
of an adult movie would have any harmful secondary effects on the community”); see also
R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 411-12 (7th Cir. 2004) (holding that the city
had not met even the low evidentiary burden required to support a zoning restriction because
the evidence “[did] not appear to be directly relevant to the type of entertainment that
Rockford [sought] to regulate”).

CONCLUSION

{26} Because the Guild engaged in only occasional showings of adult films, the Guild is
not an adult amusement establishment as defined in the Albuquerque Code of Ordinances,
and the zoning rules governing adult amusement establishments are inapplicable to it. We
therefore reverse the Court of Appeals and vacate the Guild’s conviction.

{27}   IT IS SO ORDERED.

                                               ___________________________________
                                               EDWARD L. CHÁVEZ, Justice

WE CONCUR:

___________________________________
RICHARD C. BOSSON, Justice

___________________________________
CHARLES W. DANIELS, Justice

___________________________________
BARBARA J. VIGIL, Justice

PETRA JIMENEZ MAES, Chief Justice, dissenting

MAES, Chief Justice (dissenting).

{28} I respectfully dissent and adopt in full the majority opinion of the Court of Appeals,
City of Albuquerque v. Pangaea Cinema LLC, 2012-NMCA-075, 284 P.3d 1090, as my
dissent. Like counsel for the City, I wonder why there is a need to allow the Guild to have
individual showings of adult films when the City has decided to zone this activity.

{29} I do not agree that “[b]ecause the Guild engaged in only occasional showings of
adult films,” that it is not considered an adult amusement establishment, and therefore the
zoning ordinances governing such establishments are inapplicable to it. Majority Opinion,
¶ 26 (emphasis added). This language appears to broaden the discretion of theaters,
auditoriums, bars, restaurants, and other commercial establishments to feature, present, and

                                              9
promote one or more of the activities defined as “adult amusement” pursuant to
Albuquerque, N.M., Code of Ordinances, Section 14-16-1-5(B) (1974, as amended 2012),
on an undefined basis. This erodes the zoning power of municipalities and creates ambiguity
in the application of a clear-cut zoning ordinance. As the Court of Appeals acknowledged,
“we generally defer to the zoning power of municipalities, even though it is inevitable that
the lines drawn pursuant to that power will result in winners and losers.” Pangaea Cinema
LLC, 2012-NMCA-075, ¶ 44.

                                             _____________________________________
                                             PETRA JIMENEZ MAES, Chief Justice

Topic Index for State v. Pangaea Cinema, L.L.C., No. 33,693

CONSTITUTIONAL LAW
Freedom of Speech

GOVERNMENT
Municipalities
Ordinances
Zoning

STATUTES
Interpretation
Legislative Intent




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