                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-15-1997

Ben Rich Trading Inc v. Vineland
Precedential or Non-Precedential:

Docket
95-5846




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Recommended Citation
"Ben Rich Trading Inc v. Vineland" (1997). 1997 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/218


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Filed September 15, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-5846

BEN RICH TRADING, INC.; ALEXANDER TROMBETTA

v.

CITY OF VINELAND; JOSEPH E. ROMANO, MAYOR;
MARK RUSKOSKI, President; MICHAEL I. PANTALIONE;
GARY L. STANKER; LEA L. SHAPIRO; ROBERT G. RONE;
JOHN ZAGARI; ANTHONY BRACALL; DAVID RICCI;
STANLEY PANCO; ROBERT BLOUGH; PAUL TRIVELLINI;
JOHN FUENTES; EDWIN BERGAMO, JR.

CITY OF VINELAND,
         Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 95-cv-04980)

Argued July 23, 1997

BEFORE: SLOVITER, Chief Judge
and ROTH, Circuit Judges, and LUDWIG, District Judge*

(Opinion Filed: September 15, 1997)



_________________________________________________________________
* Hon. Edmund V. Ludwig, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.



         Gerald T. Ford (Argued)
         Landman, Corsi, Ballaine & Ford
         Newark, N.J. 07102

          Attorney for Appellant

         F. Michael Daily, Jr. (Argued)
         Quinlan, Dunne & Daily
         Merchantville, N.J. 08109

          Attorney for Appellee

OPINION OF THE COURT
SLOVITER, Chief Judge.

The City of Vineland appeals from a preliminary
injunction issued by the district court which (1) enjoined
the City from enforcing a municipal ordinance that
restricted the hours of operation of sexually oriented
businesses and (2) enjoined the City from enforcing a
municipal ordinance that prohibited live entertainment in
private "conversation booths" in adult bookstores. The City
argues that the ordinances were supported by sufficient
evidence of secondary effects to satisfy the intermediate
level of scrutiny applicable to regulations of sexually
oriented businesses under City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986).

I.

A.

FACTUAL AND PROCEDURAL BACKGROUND

On April 26, 1995, appellee Ben Rich Trading, Inc.
entered into a lease and purchase agreement for a two-
story building with an adjacent 34-space parking lot with
the intention of transforming it into an adult entertainment
center. The premises front on a state highway and there are
varied commercial businesses located in the area, including

                                2



a restaurant/bar next door and a WaWa 24-hour
convenience store across the highway.

The first floor of the building consisted of three large
open areas and an office; the second floor was designed as
a residential apartment with a separate outside entrance.
Previously, the premises had been used as a "Teen
Nightclub" and had been configured with a dancefloor,
lounge area and a video arcade. According to Vineland's
Zoning Ordinance, the premises are located in a "B-2,
Highway Business Zone," which, at the time Ben Rich took
possession, permitted uses such as adult book stores,
indoor theaters, bars and taverns, amusement facilities
including video arcades, steam baths, and drive-in theaters.

On May 1, 1995, Ben Rich advised Robert Blough,
Vineland's Zoning Officer, of its intention to use the
premises to exhibit live and video entertainment, as well as
for the sale of books, videos and novelties of "an adult
nature." App. at 22. On May 3, 1995, Blough replied by
letter that such an adult entertainment center constituted
a permitted use under the City's zoning regulations but
that Ben Rich would nevertheless have to acquire site plan
approval because an adult entertainment center
represented a "change in use." App. at 25. Thereafter, Ben
Rich filed an application for site plan approval with the
Planning Board of the City of Vineland. Upon review of this
application, Blough reversed his earlier position and
informed Ben Rich that the proposed live entertainment in
a "conversation booth" setting, whereby a patron in a booth
could observe a live performer through glass and could
communicate with the dancer through a telephone hook-
up, was not a permitted use. App. at 27.

Blough also advised the City's Minor Site Plan and
Subdivision Committee at the hearing on Ben Rich's
application that live entertainment in conversation booths
was not a permitted use and could not receive site plan
approval. Ben Rich then withdrew its request for
conversation booths in order to receive the Committee's
approval for the site plan, which it secured, and on August
15, 1995 it opened an adult book store with booths for the
viewing of sexually explicit videos. Meanwhile, it appealed
Blough's decision that the proposed conversation booths

                                3



were an impermissible use to the City's Zoning Board of
Adjustment. Ben Rich requested that in the alternative it be
granted a variance to allow its proposed live entertainment
in conversation booths.

The Zoning Board of Adjustment held a hearing on
August 16, 1995, but then adjourned until September 20,
1995 so that Board members could engage in additional
investigation. On August 22, 1995, while the Zoning Board
was adjourned, the Vineland City Council enacted the two
ordinances at issue. Ordinance 95-55 limited the hours of
operation for sexually oriented businesses, including adult
bookstores, from 8:00 a.m. to 10:00 p.m., Mondays through
Saturdays. App. at 39. Ordinance 95-56 prohibited live
entertainment in private booths within adult bookstores by
amending the "conditional uses" section of the zoning
ordinance to provide:

         (1) Uses within the confines of the adult bookstore are
         restricted to the sale or rental of books, videos and
         novelties, and on-site rental for viewing of videos or
         movies.

         (2) Specifically prohibited within the confines of an
         adult bookstore is live entertainment through the use
         of individual or conversation booths which allow
         privacy between patrons and live entertainers; private
         use of booths, screens, enclosures or other devices
         which facilitate sexual activity by patrons.

App. at 44.

On September 20, 1995, the Zoning Board denied Ben
Rich's appeal of the restriction on conversation booths as
well as its application for a variance, expressly basing its
decision on the passage of Ordinance 95-56. App. at 225-
26.

B.

DISTRICT COURT PROCEEDINGS

On September 26, 1995, Ben Rich filed a complaint in
the District Court of New Jersey pursuant to 42 U.S.C.

                                4



SS 1983 and 1988, alleging that Vineland Ordinances 95-55
and 95-56 violated its First Amendment right to exhibit and
distribute sexually explicit materials. The district court
granted a temporary restraining order on the operation of
the hours ordinance and scheduled a preliminary
injunction hearing.

At the October 10, 1995 hearing the district court
acknowledged that under City of Renton v. Playtime
Theatres, 475 U.S. 41 (1986), a municipality is entitled to
regulate constitutionally protected but sexually explicit
speech as long as the regulation is directed solely towards
ameliorating the purported secondary effects of such
speech and is not directed at its content. The district court
also acknowledged that, under Renton, a municipality does
not have to conduct studies of its own documenting the
purported secondary effects that the city hopes to control,
but it can rely on studies or evidence accumulated by other
jurisdictions in order to demonstrate the content-neutrality
of its regulatory approach. App. at 196. Nevertheless, the
court concluded that the City of Vineland had failed to
demonstrate how the hours ordinance would remedy any
secondary effects from the adult theaters in the City itself.

In colloquy at the hearing, the court stated:

         [The cases] require that there be an identifiable
         secondary effect that exists reasonably under the
         circumstances of this case in Vineland and not
         because maybe it exists someplace else. And again I,
         please, want you to understand, I'm not suggesting
         that you need a study under Renton, but I do think we
         have to in keeping with the Mitchell case look to the
         restriction and see if it's intended to reduce the
         undesirable secondary effect.

App. at 196. The district court's reference to "the Mitchell
case" was to this court's decision in Mitchell v. Comm'n on
Adult Entertainment Establishments, 10 F.3d 123 (3d Cir.
1993), sustaining a Delaware statute that restricted the
hours of operation of adult entertainment centers.

At the same hearing, counsel for Vineland asked if the
court also intended to address the legality of Ordinance 95-
56 which prohibited live entertainment in conversation

                                5



booths. See App. at 201-02. The court chose not to address
that issue at that hearing, but offered the parties five days
to submit briefs on the constitutionality of Ordinance 95-
56. However, the court made clear that it believed the
essence of Ordinance 95-56 to be a complete prohibition on
the exhibition of live entertainment in adult bookstores:

         But the ordinance does appear to read a complete
         prohibition, which seems to be inconsistent with
         Renton from the Mitchell case [sic] that wanted to
         narrowly tailor.... If I then have all the submissions, I'll
         certainly try to compose a response to what we've
         heard today.

App. at 202. Neither party submitted any additional
material.

On October 31, 1995, the court entered an order
enjoining the City from enforcing the Ordinances "to the
extent that they prohibit plaintiffs from continuing the
Monday through Saturday hours of operation of 9:30 A.M.
to 1:30 A.M. consistent with [the] court's previous orders."
App. at 209. The court also enjoined the City from enforcing
Ordinance 95-56 "to the extent that it contains a complete
prohibition on live entertainment through the use of
individual or `conversational booths.' " App. at 210.
However, the court gave the City defendants leave"to
petition the court to amend this injunction at such time as
they can demonstrate a link between a reasonable
prohibition on the booths and the government's health
interest in this situation." App. at 210. Regretfully, the
court's order did not include any written or explicit oral
findings of fact or conclusions of law, which would have
been helpful in our review of the rationale for the order
entered.
On November 3, 1995, Ben Rich moved the court for an
additional order permitting it to "proceed with the offering
to the public of live entertainment in a `conversational
booth' setting and enjoining the Defendants from
preventing or interfering with same," app. at 212, on the
ground that the sole basis for the decision of the Zoning
Board was Ordinance 95-56, which the district court had
now declared unconstitutional. At the hearing on Ben

                                6



Rich's motion, the City argued that Ben Rich should be
required to return to the Zoning Board for a decision
whether conversation booths were a permitted use as an
Indoor Theater under its original zoning regulations,
regardless of the unenforceability of Ordinance 95-56, as
the Zoning Board had never addressed that issue.

The district court believed that the Zoning Board could
not constitutionally decline to classify Ben Rich's
conversation booths as a permissible use as Indoor Theater
in light of the classification of video presentations in similar
booths as Indoor Theater. The court stated:

         But if it's an issue that eventually will lend itself to a
         constitutional interpretation, then I think many times
         the court should just try to make that interpretation. If
         it eventually is going to end up [in federal court],
         there's no sense of having the delay.

         . . .

         I would think that without the ordinance and with the
         constitutional principles in place, that there is nothing
         really to impede them to start moving forward.

App. at 278, 280.

The court reminded the City that it was free to amend its
ordinance in order to put reasonable restrictions on
conversation booths and conform with the requirements of
Renton and Mitchell. See, e.g., app. at 279 ("But there is the
opportunity for the City of Vineland to put sufficient
contours around the utilization of those booths that would
meet and justify the least restrictive manner of control that
would be consistent with the first amendment speech and
expressive conduct.").

The court entered two supplemental orders on December
1, 1995. The first refined the earlier order relating to the
hours ordinance and stated that "Plaintiffs' allowed hours
of operation shall be no different than those of other
commercial businesses existing within the B-2 business
zone." App. at 296. The second order permitted Ben Rich to
"herewith proceed with the offering of live entertainment in
a conversational booth setting as originally requested by
them in a site plan submitted and duly filed with the

                                7



Planning Board of the City of Vineland," app. at 298, but
contained the proviso that:

         [T]he rulings contained herein shall in no way affect
         the Defendants' rights to enact legislation which they
         deem appropriate in order to protect the public health
         and welfare from adverse secondary effects of an adult
         oriented business. Plaintiffs by proceeding under the
         terms of this Order do so at the peril of being subjected
         in the future to such appropriate and lawful
         regulations as the City of Vineland may enact and may
         apply to the Plaintiffs in accordance with
         Constitutional and State Law.

App. at 298. The City appeals from the November 2, 1995
preliminary injunction order and from the December 1
orders.

II.

It is surprising that although the underlying orders on
appeal are preliminary injunctions, neither party discusses
the standard for a preliminary injunction nor is there any
reference to that standard in the district court's orders or
discussion. We have found no stipulation in the record by
the parties that consolidated the preliminary injunction
hearing with a trial on the merits, as permitted under Rule
65(a)(2) of the Federal Rules of Civil Procedure, and we are
not free to disregard the procedural posture in which the
orders are presented on appeal. Thus, we review the district
court's grant of a preliminary injunction to ascertain
whether plaintiff made the necessary showing that it is
likely to prevail on the merits, will suffer irreparable injury
if injunctive relief is not granted, and that the injunction is
generally in the public interest. See Bradley v. Pittsburgh
Bd. Of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).

III.

Speech that is sexually explicit but not "obscene," either
in the form of film, text, or live presentation, must be
accorded First Amendment protection. See Schad v.
Borough of Mount Ephraim, 452 U.S. 61, 65-66 (1981);
                                8



Phillips v. Borough of Keyport, 107 F.3d 164, 172 (3d Cir.
1997) (en banc). Any regulation of such sexually explicit
speech that is aimed primarily at suppressing the content
of the speech is subject to strict scrutiny by the court and,
unless justified by a compelling governmental interest, is
presumptively unconstitutional. See Renton, 475 U.S. at 46.
However, if a regulation's primary purpose is to ameliorate
the socially adverse secondary effects of speech-related
activity, the regulation is deemed content-neutral, and is
accordingly measured by intermediate scrutiny, under the
Court's traditional time, place, manner doctrine. See Turner
Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642
(1994); Phillips, 107 F.3d at 171.

Vineland's ordinances at issue are purportedly directed at
curbing the secondary effects of Ben Rich's speech related
activity. Time, place, manner regulations of protected
speech are valid if:

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

         (2) they are narrowly tailored to serve a significant or
         substantial government interest; and

         (3) they leave open ample alternative channels for
         communication.

Mitchell, 10 F.3d at 130.

A.

THE CLOSING HOURS ORDINANCE

Ordinance 95-55 provides:

         A sexually oriented business as defined by N.J.S.
         2C:33-12.1 2(a) and (b) including adult book stores
         may not be open for business before 8:00 a.m. or after
         10 p.m., Mondays through Saturdays or on any
         Sunday or legal holiday.

App. at 65.

"The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, manner cases

                                9
in particular, is whether the government has adopted a
regulation of speech because of disagreement with the
message it conveys." Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989). Despite Ben Rich's protests, there
was no evidence at the hearing that the City of Vineland
specifically targeted Ben Rich's establishment or that "the
predominate purpose for enacting the ordinances was to
suppress constitutionally protected forms of expression."
Brief of Appellee at 13. To the contrary, the City attempts
to justify the regulation "without reference to the content of
the regulated speech," Renton, 475 U.S. at 48, and its
burden for proving such content neutrality is not heavy.
According to the Court in Renton, if an ordinance does "not
ban adult theaters altogether" but merely bans them from
certain parts of the city, it is properly analyzed as a time,
place, manner restriction. Id. at 41.

Nevertheless, under this framework the City must still
have presented evidence of "incidental adverse social effect
that provides the important governmental interest
justifying" the content neutral regulation and must be able
to "articulate and support its argument with a reasoned
and substantial basis demonstrating the link between the
regulation and the asserted governmental interest." Phillips,
107 F.3d at 173 (internal quotations omitted).

Ben Rich contends that, far from justifying the content
neutrality of the ordinance on a reasoned basis, Vineland
produced no evidence that it considered secondary effects
of adult establishments at the time it passed the
ordinances. However, in our recent en banc decision in
Phillips, which was decided after the district court entered
the orders on appeal, we rejected the argument that a
municipality's justification must be apparent "at the time of
adoption," or "before taking [legislative] action." Phillips,
107 F.3d at 178. Although we reiterated the requirement
that a municipality "shoulder the burden of building an
evidentiary record that would support a finding that . . .
[governmental] interests would be jeopardized in the
absence of an ordinance," id. at 173, we also held that such
a record could be established in the court after legislation
is passed and challenged, id. at 178.

We stated that:

                                10



         There is a significant difference between the
         requirement that there be a factual basis for a
         legislative judgment presented in court when that
         judgment is challenged and a requirement that such a
         factual basis have been submitted to the legislative
         body prior to the enactment of the legislative measure.
         We have always required the former; we have never
         required the latter.

Id. Thus, in Phillips we refused to hold unconstitutional a
borough's ordinance that zoned out the plaintiff 's adult
bookstore despite the fact that the borough had not made
a pre-enactment record before the legislature regarding
secondary effects and presented no such evidence in the
district court. Instead, we remanded the case to the district
court in order to give the borough an opportunity to develop
such evidence. See Phillips, 107 F.3d at 181.

In this case, because Vineland did come forward as
required by Phillips "with a required showing in the
courtroom once the challenge [was] raised," id. at 178, we
examine whether its showing was adequate. In the district
court, Vineland relied both on the evidence presented to the
New Jersey legislature in connection with its consideration
and subsequent passage of a state statute on July 5, 1995
dealing with almost identical issues, and on the record
presented in support of the Delaware statute that we
upheld in Mitchell.

It placed particular emphasis on the New Jersey record.
Before enactment of the New Jersey statute, which
authorized municipalities to restrict the hours of operation
of adult oriented businesses and made it a crime to "own[ ]
or operate[ ] a sexually oriented business which offers for
public use booths, screens, enclosures, or other devices
which facilitate sexual activity by patrons," see N.J.S.A. 2C:
33-12.2, the New Jersey legislature had heard testimony
from various witnesses who described how adult
establishments contribute to crime and litter in
surrounding areas and how private booths within these
stores encourage people to have unprotected sex with
anonymous partners and thereby facilitate the spread of
sexually transmitted diseases, particularly AIDS. See app.
at 79 (Testimony of John Tumulty, Chief of Legislative

                                11



Section of New Jersey Office of Legislative Services, to
Senate Judiciary Committee); app. at 80-100 (Testimony
and Exhibits by Debbie Crook, President of Atlantic County
Branch of American Family Association of New Jersey, to
Senate Judiciary Committee); app. at 110 (Testimony of
Susan Grant, State Director of Concerned Women of
America, to Assembly Judiciary Committee); app. at 116-19
(Testimony of Larry Etzweiler, Deputy Attorney General of
New Jersey, to Assembly Judiciary Committee).
Testimony was presented to the relevant New Jersey
legislative committees that a similar statute enacted by
Delaware that prohibited operation of adult establishments
before 10 a.m. and after 10 p.m., Mondays through
Saturdays, and all day on Sundays and legal holidays, had
been upheld against constitutional challenge by this court
in Mitchell. Larry Etzweiler, New Jersey Deputy Attorney
General, appeared before the Judiciary, Law and Public
Safety Committee of the New Jersey State Assembly and
told the members of that Committee that in their
considerations of the pending bill they

         could deem the hours-of-operation restriction as
         advancing the goal of affording neighbors peace and
         quiet at least during part of the day, and of
         diminishing the "noise, excessive parking, and the
         presence of discarded sexually oriented material on
         residential lawns that adult entertainment
         establishments cause."

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

In this case, Etzweiler filed an affidavit in the district
court describing some of the evidence that had been
presented to the New Jersey legislative committees, and he
stated that the "Committee members understood that
patrons are more likely to discard sexually oriented
materials on residential lawns during the cover of night
than during the openness of broad daylight." App. at 118.
In Mitchell, we had found such a justification to be both
content neutral and substantial. The studies and legislative
record in support of the hours regulation for adult theaters
that was presented in Mitchell and other courts, see, e.g.,
Star Satellite v. City of Biloxi, 779 F.2d 1074, 1077-78 (5th

                                12



Cir. 1986), may have been more extensive than those
provided by either Vineland or New Jersey, but we cannot
hold that it was impermissible for Vineland to rely on the
experiences, studies and conclusions of other jurisdictions
about the secondary effects of adult theaters. See Renton,
475 U.S. at 51-52 ("The First Amendment does not require
a city, before enacting such an ordinance, to conduct new
studies or produce evidence independent of that already
generated by other cities, so long as whatever evidence the
city relies upon is reasonably believed to be relevant to the
problem that the city addresses.")

Notwithstanding the district court's acknowledgment that
Vineland was entitled to rely on studies and experiences
from other jurisdictions in justifying their time, place,
manner regulation, the court apparently believed that
Vineland was required to specify a "linkage" between its
own experiences and those of the jurisdictions producing
the studies upon which it intended to rely. App. at 171. The
court noted that Vineland did not show, for example, that
the adult bookstores were near residential areas susceptible
to late-night litter or that there is a parking problem of the
kind that may have existed in Delaware. However, the
relevant cases do not impose a requirement that Vineland
lay out in specific detail how its situation is sufficiently
similar to Delaware's or New Jersey's in order to make their
studies relevant.

As Vineland is a municipality within New Jersey, the
studies presented to the New Jersey legislature could
"reasonably [be] believed to be relevant to the problem"
Vineland was facing. See Phillips, 107 F.3d at 174. The
same can be said of the relevance of the Delaware studies.
The various jurisdictions are not so geographically distant
nor demographically distinct as to suggest that they do not
share comparable urban problems, and Ben Rich has not
argued otherwise.

The district court was also troubled by the apparent
underinclusiveness of Vineland's ordinance, noting that
notwithstanding Vineland's assertion that it needed the
hours ordinance to limit parking and reduce the
"discard[ing] [of] sexually oriented material on residential
lawns," app. at 118, Vineland did not attempt to limit the

                                13



hours of the nearby WaWa and bar/restaurant or other
stores selling adult magazines, which presumably also
produce noise and parking problems, see app. at 120-124.

The district court's concern does not warrant striking
down the Vineland ordinance. As Vineland points out on
appeal, on its face Ordinance 95-55 covers any "sexually
oriented businesses" and thus may be enforceable against
the other stores in the City that sell adult magazines, an
issue we do not decide. More important, we have held that
a state or municipality may regulate hours of adult
businesses differently than other businesses without
raising a strong inference of discrimination based on
content. We stated in Mitchell: "The content of the sexually
explicit speech and expressive activity that businesses like
Adult Books purvey permits legislative bodies to put adult
entertainment establishments in a different category than
other entertainment establishments." 10 F.3d at 132. We
also stated that the state "need only show that adult
entertainment establishments as a class cause the
unwanted secondary effects the statute regulates." Id. at
138; see also Renton, 475 U.S. at 49 (" `[G]overnment can
tailor its reaction to different types of speech according to
the degree to which its special and overriding interests are
implicated.' " (quoting Young v. American Mini Theatres, 427
U.S. 50, 82 n.6 (1976) (Powell, J., concurring))).

We thus conclude that Vineland produced the required
showing of the content neutrality of its closing hours
ordinance and the substantiality of its interest in
ameliorating the secondary effects of late-night litter and
parking related to adult book stores.

To sustain the validity of the ordinance against First
Amendment challenge, we must also decide if the proffered
regulation is narrowly tailored. The government bears the
burden of showing that the remedy it has adopted does not
"burden substantially more speech than is necessary to
further the government's legitimate interests." Ward, 491
U.S. at 799. Vineland points out that its ordinance is no
more restrictive than the Delaware hours restriction upheld
by this court in Mitchell and, in fact, allows businesses to
open two hours earlier. Moreover, under the fairly lenient
standard for time, place, manner restrictions, "[t]he city

                                14



must be allowed a reasonable opportunity to experiment
with solutions to admittedly serious problems." Renton, 475
U.S. at 52 (internal quotations omitted).

Finally, with respect to the requirement that the
ordinance leave open adequate alternative channels of
communication, we need only look to our dismissal in
Mitchell of the argument that an hours restriction fails this
test "because it prohibits adult entertainment during the
time of greatest customer demand" (late at night). As we
stated in that case, "the [statute] allows those who choose
to hear, view, or participate publicly in sexually explicit
expressive activity more than thirty-six hundred hours per
year to do so. We think the Constitution requires no more."
See Mitchell, 10 F.3d at 139.

We assume that underlying its preliminary injunction
was the district court's conclusion that Ben Rich had
shown a probability of success on the merits. We conclude,
to the contrary, that based on the evidence, Ordinance 95-
55 is a permissible time, place, manner restriction. It
follows that we need not reach the other factors to be
considered in preliminary injunction review, as this
preliminary injunction cannot stand.
B.

CONVERSATION BOOTHS ORDINANCE

The language of subsection (1) of Vineland Ordinance 95-
56, which is a land use ordinance, prohibits any uses in
adult bookstores except the "sale or rental of books, videos,
and novelties, and on-site rental for viewing of videos and
movies." App. at 44. On its face, this appears to effect a
complete prohibition of all live dancing, nude or otherwise,
in adult bookstores, and as such would be of questionable
validity under Schad v. Borough of Mt. Ephraim, 452 U.S.
61 (1981). Although the court's Order to Show Cause
required the City to show cause why the court "should not
issue a preliminary injunction enjoining [the] defendants
from enforcing City of Vineland ordinances 95-55 and 95-
56," app. at 53, and presumably therefore the entire
ordinance was at issue, the preliminary injunction itself

                                15



only enjoins the City from enforcing 95-56 "to the extent
that it contains a complete prohibition on live
entertainment through the use of individual or
`conversational booths,' " app. at 210 (emphasis added). This
is the subject of subsection (2), which was particularly
referenced in the Order to Show Cause. Therefore, on this
appeal from that preliminary injunction, we need not
consider the reach of subsection (1) because its validity was
not decided by the district court. We limit our consideration
to the issue that most interests the parties - the injunction
as to the conversation booths regulation.

Vineland argues that the district court entered its
November 2, 1995 order preliminarily enjoining
enforcement of Ordinance 95-56, "to the extent that it
contains a complete prohibition on live entertainment
through the use of individual or conversation booths," app.
at 210, under the incorrect belief that subsection (2) of the
Ordinance effected a complete prohibition on the offering of
live entertainment in conversation booths.

Vineland has presented a persuasive case that there is a
substantial governmental interest in preventing anonymous
sex in conversation booths and in controlling the spread of
sexually transmitted diseases. Vineland presented evidence
to the district court, taken from the legislative history of the
New Jersey statute, that in booths in adult bookstores,
patrons have unprotected sex with anonymous partners
either in the same booth or through an opening to an
adjacent booth, or masturbate, and that such conduct
promotes the spread of AIDS. See, e.g. , app. at 80-100
(Testimony of Debbie Crook). Vineland also presented
legislative history from the Delaware statute regarding
similar secondary effects of adult booths, which the court
in Mitchell found sufficient to withstand First Amendment
objections. See app. at 101-08.

The substantial interest in controlling anonymous sex in
adult entertainment establishments is adequately
documented by Vineland. See Chez Sez VIII v. Poritz, No.
95-3349 (N.J. Super. Ct., Law Div. Aug. 31, 1995)
("[h]alting the spread of [AIDS] and other communicable
diseases by reducing the incidence of promiscuous,
unprotected sex undoubtedly constitutes a compelling state

                                16



interest"), rev'd on other grounds, 688 A.2d 119 (N.J. App.
Div. 1997).

This does not mean that a complete ban on live
entertainment in conversation booths in adult bookstores
would meet the requirement of being narrowly tailored to
achieve this end. In Mitchell, we distinguished the Delaware
statute that required that booths in adult bookstores be
open on at least one side, which we upheld, from one that
imposed a total ban on such booths, noting: "Delaware's
open-booth amendment does not ban films or other
entertainment. . . . It is not directed at limiting the content
of films or performances patrons can view from within the
booths, but rather at curbing the undesirable incidental
effects that are perceived to result from the use of closed
booths in adult entertainment establishments." 10 F.3d at
140. Indeed, virtually all ordinances that courts have
upheld which have sought to reduce the effects of
anonymous sex in adult entertainment establishments have
imposed an "open booth" requirement. See Mitchell, 10 F.3d
at 128 (open on one side to a public room); Bamon Corp. v.
City of Dayton, 923 F.2d 470 (6th Cir. 1991) (removal of
doors); Doe v. City of Minneapolis, 898 F.2d 612, 620 (8th
Cir. 1990) (open on one side); Berg v. Health and Hospital
Corp., 865 F.2d 797, 803 (7th Cir. 1989) (open on one side
to a public room; "does not bar people from watching films
or entertainment in individual enclosures"); Wall
Distributors, Inc. v. City of Newport News, 782 F.2d 1165,
1167 (4th Cir. 1986) (visible from continuous aisle).

Subsection (2) of Ordinance 95-56 only prohibits the use
of conversation booths if they allow for privacy between
dancer and patron or if the booths would "facilitate sexual
activity." We construe that conditional restriction as
tantamount to an "open booth" requirement since an owner
can satisfy the non-private condition by leaving at least one
side of the booth open to the public area. See Mitchell, 10
F.3d at 139-40 (Delaware statute requires such booths to
have "at least one side open to an adjacent public room so
that the area inside is visible to persons in adjacent public
rooms").

This is the construction given by the New Jersey
Appellate Division in upholding the New Jersey statute that

                                 17



prohibits conversation booths that "facilitate sexual
activity," notwithstanding its failure to explicitly require
open booths. See Chez Vez VIII, Inc. v. Poritz, 688 A.2d 119,
122 (N.J. Super. 1997). The court concluded that if a booth
is visible to a public room it would not be conducive to
sexual activity, and thus the "statute embraces all the
physical requirements of other jurisdictions [that impose
open booth requirements]." Id. at 128. Inasmuch as
Vineland's Ordinance 95-56 contains language similar to
that in the New Jersey statute, it is reasonable for us to
construe it in the same way as imposing an open booth
requirement.

Following the district court's December 1, 1995 order
inviting the City to enact additional regulations to control
secondary effects within constitutional constraints, on April
23, 1996, Vineland passed Ordinance 96-32 entitled,"An
Ordinance of the City of Vineland Relating to Sexually
Contagious Diseases." See Ben Rich Trading, Inc. v. City of
Vineland, No. 96-cv-2496, slip op. at 3 (D.N.J. Jan. 10,
1997). The Ordinance imposes a more explicit open booth
requirement by mandating that booths in adult theaters
have " `at least one side open to an adjacent public room so
that the area inside is visible to persons in the adjacent
public room.' "1 Id. at 3-4 (quoting City of Vineland
_________________________________________________________________

1. It provides in pertinent part:

          No person shall own, operate, manage, rent, lease or exercise
control
          of any commercial building, structure, premises or portion or
part
          thereof, which contains:

           (1) Partition between subdivisions of a room, portion or part of
a
          building, structure or premises having an aperture which is
          designed or constructed to facilitate sexual activity between
persons
         on either side of the petition (sic).

           (2) Booths, stalls, or partitioned portions of a room, or
individual
         rooms, used for the viewing of motion pictures or other forms of
         entertainment, having doors, curtains or portal partitions,
unless
         such booths, stalls, partitioned portions of a room, or
individual
         rooms so used shall have at least one side open to an adjacent
         public room so that the area inside is visible to persons in the
         adjacent public room.

Ben Rich, No. 96-cv-2496, at 3-4 (quoting City of Vineland Ordinance 96-
32).

                                18



Ordinance 96-32). The district court considering that
Ordinance upheld it against a constitutional challenge by
Ben Rich, after concluding that the City adequately
documented, prior to its enactment, the desired goal of
preventing anonymous sex in adult theaters and the
corresponding spread of sexually transmitted diseases. See
id. at 13.

Ben Rich did not appeal that judgment and, indeed,
argues that the new ordinance is substantially more
reasonable and narrowly tailored than Ordinance 95-56.
However, Ordinance 96-32 is not materially different in
substance than subsection (2) of Ordinance 95-56 as we
have construed it and the parties, therefore, do not appear
to differ on their understanding of the permissible scope of
Vineland's regulatory authority. In any event, we conclude
that the district court erred in holding subsection (2) of
Ordinance 95-56 to infringe on Ben Rich's First
Amendment rights and in granting a preliminary injunction
enjoining its operation.2

IV.

For the reasons stated above, we will reverse the
preliminary injunction order entered November 5, 1995 and
the orders of December 1, 1995.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit
_________________________________________________________________
2. In light of our holding, we need not reach Vineland's argument that
the district court should not have issued the December 1, 1995 order
permitting Ben Rich to proceed with the offering of conversation booths
without requiring Ben Rich to return to the Zoning Board for a decision
as to whether conversation booths are a permitted use as an Indoor
Theatre. Should the issue arise when this case returns to the district
court, we note that the district court should give proper consideration to
Vineland's interest in having its administrative procedures exhausted
through appeal to the Zoning Board or a request for a variance.

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