Bayou Landing, Ltd., D/b/a the Florida Book Mart, Plaintiff-appellant, v. Edgar Watts et al., Defendants-appellees.ouza, Inc., D/b/a the Palace Book Mart, Excalibur Books,inc., D/b/a the Palace Book Store, Plaintiffs-appellants, v. Edgar Watts, Jr., et al., Defendants-appellees, 563 F.2d 1172 (5th Cir. 1977)

In these § 1983¹  cases, the owners of so-called adult bookstores challenged on first amendment grounds certain actions of the city-parish council of Baton Rouge and East Baton Rouge Parish, Louisiana. In No. 75-4436 (hereinafter Ouza), the council, spurred by the arrest of two bookstore employees on obscenity charges, revoked the occupational licenses under which an adult bookstore had been operating. In No. 75-3632 (hereinafter Bayou Landing), the council directed that the permanent occupancy permit for an adult bookstore be withheld, because residents of the area around the bookstore had objected to the visual displays in the windows of the store.

The district court dismissed both actions. In Ouza the court held in favor of the defendant-appellees²  at the close of the bookstore owners' case. The court expressed the view that the appellants had failed to make a prima facie case. In Bayou Landing, the court sustained the appellees' position after an evidentiary hearing at which periodicals allegedly similar to those sold at the bookstore were introduced. The court ruled from the bench³  that the materials were not protected by the first amendment.

We reverse.

* Bayou Landing

In August, 1975, the city-parish council directed the local building official to withhold issuance of an occupancy permit for 3919 Florida Boulevard in Baton Rouge. Appellant Bayou Landing, Ltd. had been operating an adult bookstore at the location under temporary authority.

The record is barren of any explanation for the council's action except for the text of the resolution passed by the council ordering that the permit be withheld:

RESOLUTION 5583

AUTHORIZING AND DIRECTING THE BUILDING OFFICIAL TO WITHHOLD THE ISSUANCE OF AN OCCUPANCY PERMIT FOR THE PROPOSED USE OF THE BUILDING LOCATED AT 3919 FLORIDA BOULEVARD, BEING LOT 36, SQUARE 3, LOFASO TOWN.

WHEREAS, an application has been received requesting a permit for operation of a business enterprise designated as a book store in the building located at 3919 Florida Boulevard, being Lot 36, Square 3, Lofaso Town; and

WHEREAS, because of the visual advertisements on display in the front windows of these premises, it is felt that the type of business activity contemplated is unsuitable for location in a residential community and area such as the one in which this building is situated, and the residents and property owners in the area have formally opposed the establishment of such business concern as contemplated; and

WHEREAS, this Council believes it would be in the best public interest to withhold the issuance of an occupancy permit at this location for the proposed use:

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Baton Rouge that the Building Official is hereby authorized and directed to withhold the issuance of an occupancy permit for the proposed use of the building located at 3919 Florida Boulevard, being Lot 36, Square 3, Lofaso Town, in the City of Baton Rouge.

Record 68.

Since the resolution arguably trenches on the plaintiff's first amendment rights it is for the defendant to justify it. See Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977); Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958). The defendant seeks to do this first, by claiming that it is in the nature of a zoning ordinance. A city clearly can provide that certain establishments may only operate in specified neighborhoods, or must be located a specified distance from each other, even in a first amendment context. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440, 49 L. Ed. 2d 310 (1976). Zoning, however, connotes a non-particularized legislative process in which rules are promulgated and land areas designated on a general, prospective basis. 101 C.J.S. Zoning § 1 ("Zoning regulations are legislative, rather than judicial, in character"). Here, there are strong indications that the resolution was not a zoning ordinance. The resolution was directed at only one business, instead of being of general applicability, even though "rezoning on a piecemeal or spot basis is highly suspect." Four States Realty Co., Inc. v. City of Baton Rouge, 309 So. 2d 659, 672 (La.1975). See also 101 C.J.S. Zoning § 34. The resolution was not prospective, but instead acted to penalize that establishment after it became known that it was selling certain material. Furthermore, it recites as one of the reasons for its passage that "residents and property owners in the area have formally opposed the establishment of such business concern as contemplated." This reliance on public distaste for certain activities, instead of on legislative determinations concerning public health and safety again indicates that we are not dealing with zoning. In addition, the defendants have not cited any statute, ordinance, or other source defining "unsuitable for location in a residential community." At oral argument, counsel for defendants stated that the city council was authorized to act to protect the public interest. These standards for restraining the dissemination of materials such as books, magazines, and films all of which are presumed protected by the first amendment plainly cannot pass constitutional muster.⁴  The standards would permit the government to suppress protected expression solely because the residents of the community disapproved of the content of the expression or were offended by it.⁵  We also note that it was stipulated by the parties that "other establishments in the area selling the same type of material were given occupancy certificates and are in fact doing business in the City of Baton Rouge." There has been no explanation, in a zoning context, as to why the plaintiff business was singled out for unique treatment.

The ordinance at issue is also sought to be justified on general police power grounds. For instance, it recites as a reason for the refusal of a permit "the visual advertisements on display in the front windows of these premises." While a governmental body might properly refuse to license some businesses because of their window advertisements, in the first amendment context it must be sure that "the restrictions are no greater than necessary or essential to the protection of the governmental interests." Baldwin v. Redwood City, 540 F.2d 1360, 1365 (9th Cir. 1976). See Linmark Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 91, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977). Here, if the true problem was plaintiff's advertisements, surely the city could have commanded that those be removed without so heavily intruding on the first amendment as it did when it refused to allow the bookstore to operate.

Thus "(i)f the ordinance is to be sustained, it must be on the basis of the (city's) interest in regulating the content of the communication, and not on any interest in regulating the form." Linmark Associates, supra, 431 U.S. at 94, 97 S. Ct. at 1619. However, the resolution at issue cannot even be justified as straightforward administrative censorship. The Supreme Court has required that "regulations of obscenity scrupulously embody the most rigorous procedural safeguards . . . ." Blount v. Rizzi, 400 U.S. 410, 416, 91 S. Ct. 423, 428, 27 L. Ed. 2d 498 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). There were no such safeguards in the instant case. Although the defendant argues that a public hearing was held before the resolution in question was adopted, such a mechanism merely enhances the opportunity of the majority to suppress distasteful but protected expression. The procedures envisioned by the Supreme Court are of more judicial nature.

Finally, the council action is not saved by the district court's ruling from the bench that the materials sold at the bookstore were obscene. First, the materials examined by the district court were not even from the Bayou Landing store in Baton Rouge, but were purchased in Jefferson Parish. Since there is a difference between pornography and obscenity, while the material from one store might be obscene the material from the other might be protected. Second, the obligation of seeking a judicial determination of the protected or unprotected categorization of literature must be placed on the government, and the government must allow a free trade in material presumed protected until it demonstrates in court that the materials are obscene. See Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).

We thus conclude that the plaintiff was entitled to the relief requested in No. 3632.

II

Ouza

In October, 1975, the council revoked the occupational licenses that had been granted to Ouza, Inc., and Excalibur Books, Inc., for a bookstore on Plank Road in Baton Rouge. The events leading to the revocation began with the arrest of two of the bookstore's employees on obscenity charges. The district attorney for the parish wrote to the council, recommending that the store's operating authority be revoked because, in view of the arrests, revocation was necessary "to protect the public interest." Record 28. The parish clerk then sent appellants each a letter notifying them of a hearing regarding the district attorney's recommendation. A copy of the district attorney's letter was sent along with and incorporated by reference into the parish clerk's letter. The clerk's letter also stated that a basis for the proposed revocation was violation of the Louisiana obscenity statute.⁶  A hearing was held by the council in closed session at the request of appellants and after the hearing the council passed a resolution⁷  revoking appellants' licenses.

After putting the above facts before the district court in the form of stipulations or documentary evidence, appellants rested, being of the view that they had made out a prima facie case. The district court disagreed, dismissing the case at the close of appellants' evidence. The court stated:

Whether or not the obscenity laws of the State of Louisiana or the Parish of East Baton Rouge have been violated by the plaintiffs cannot be determined by this Court absent evidence on that issue. Plaintiffs have seen fit to rest their case without the presentation of any evidence pertaining to the issue of obscenity . . . . Since the burden is upon the plaintiffs to prove their case by a preponderance of the evidence, and since the plaintiffs have failed or refused to present any evidence on the question of obscenity to this Court:

IT IS ORDERED that the plaintiffs' motion for a preliminary and permanent injunction and for declaratory judgment in its favor in this case be, and it is hereby DENIED, and this case is hereby DISMISSED.

Record 65-66.

We are at a loss to understand what sort of evidence the district court thought it incumbent upon the bookstore owners to present "on the issue of obscenity." The purport of the court's opinion is that the materials are presumed obscene. On the contrary, once a plaintiff shows that the government has restrained dissemination of materials presumed protected by the first amendment and introduces evidence tending to show that the restraint was based on the content of the materials, then the burden shifts to the government officials to demonstrate that any restraint imposed comported with the substantive and procedural requirements of the first amendment.⁸ 

III

The judgment in No. 75-3632 is reversed with the direction that the district court grant injunctive relief. The judgment in No. 75-4436 is reversed and the cause remanded for proceedings consistent with this opinion.⁹ 

REVERSED.