Unpublished Dispositiongarrett Williams, et al., Plaintiffs-appellants, v. City of Columbus, Ohio, et al., Defendants-appellees, 872 F.2d 1030 (6th Cir. 1989)

Plaintiffs, proprietors of adult movie theatres and viewing booths in Columbus, Ohio,¹  sued to set aside a Columbus ordinance (City Code Sec. 559.18(1)), which precludes enclosed viewing areas or booths for certain described sexually explicit films and performances, based on claimed unconstitutional infringement upon their rights. The ordinance²  was enacted in October of 1987 after a report from a special City commission on health and other problems related to exhibiting such films and materials in enclosed booth areas such as operated by plaintiffs and frequented by their customers.

Plaintiffs sought preliminary injunctive relief from enforcement of Sec. 559.18 which, after an opportunity for proof and a hearing, was denied by the district judge. The effective date of the ordinance had also been delayed by a ninety day grace period due to objections by plaintiffs that they would need time to comply.

Judge John D. Holschuh, in a thorough 24-page memorandum and order considered the contentions of the parties, the proof submitted, and the issues presented in the plaintiffs' motion for injunctive relief. Generally, for the reasons stated by the district judge, we affirm his action as not an abuse of discretion.

The burden is cast upon plaintiffs, in the posture of this appeal, to show that Judge Holschuh abused his discretion or acted contrary to law or the Constitution in holding that plaintiffs in this case had failed to meet the four familiar standards set out in our often-cited decision, Mason County Medical Association v. Kuehel, 563 F.2d 256, 261 (6th Cir. 1977). We hold that the district court did not commit error in its decision that plaintiffs failed particularly in respect to showing a "strong or substantial likelihood or probability of success on the merits." By emphasizing this particular test, we do not indicate that plaintiffs met any of the other Mason County Medical Association standards. We decline plaintiffs' invitation to amend these standards by adding, or substituting, a "fair ground of litigation" test.

Plaintiffs concede that every other circuit that has addressed this type of "open booth" ordinance, as well as a number of district courts, have declined to set aside these ordinances as unconstitutional. See Berg v. Health & Hospital Corp. of Marion County, Indiana, 865 F.2d 797 (7th Cir. 1989), aff'g, 667 F. Supp. 639 (S.D. Ind. 1987); FW/PGS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988), cert. granted, 103 L. Ed. 2d 578 (1989); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1168 (4th Cir. 1986); Ellwest Stereo Theaters, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982); Suburban Video, Inc. v. City of Delafield, 694 F. Supp. 585 (E.D. Wis. 1988); Doe v. City of Minneapolis, 693 F. Supp. 774 (D. Minn. 1988); Broadway Books, Inc. v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986).

The City of Columbus is prohibited by neither the first amendment nor the fourteenth amendment from classifying and regulating "adult-oriented" and "sexually explicit" commercial operations in a manner different from other places of entertainment or businesses. See Young v. American Mini Theatres, 427 U.S. 50, 62 (1976).

Accordingly, we AFFIRM the decision of the district court.