Plaintiff operated adult businesses in the City of Memphis. In 1990, the plaintiff challenged a city ordinance that regulated adult businesses. The Court of Appeals, Sixth Circuit ruled that the ordinance was unconstitutional on four grounds, and in 1996, the parties entered into a consent judgment agreeing that the court’s ruling was final. This resulted in the ordinance never being repealed or enforced.
In 2007, the Tennessee Adult-Oriented Establishment Registration Act, which imposed licensing and restriction requirements on adult establishments was adopted by Shelby County, placing more restriction on these establishments than the Memphis ordinance had. The enforcement of this Act in Memphis was addressed by stating that “if a city…chooses to enact and enforce its own regulatory scheme for adult-oriented establishments and sexually-oriented businesses, then the provisions of this part shall not apply…” The plaintiff then applied to the court arguing that the parties should be relieved of the consent judgment due to changes in statutory and decisional law, and the Memphis ordinance was no longer unconstitutional. The District Court denied this motion on the basis that the Memphis ordinance still had elements that made it unconstitutional. The court found that it could not sever the unconstitutionally overly broad provision requiring shareholder disclosure, and in any event, the plaintiff could not show any inequity, but rather he could only show he preferred the City ordinance, as opposed to the new County ordinance.
The Sixth Circuit Court of Appeals affirmed, finding that none of the changes plaintiff relied upon favored release from the consent judgment. Because the Shelby County ordinance covered all of the areas addressed in the Memphis ordinance, but it was constitutional, the court concluded that it would not be
East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459 (Ct. App. 6th Cir. 2/24/2011)
The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/11a0059p-06.pdf.
