Posted by: Patricia Salkin | December 9, 2013

NM Supreme Court Finds Art-House Movie Theater that Occasionally Showed Adult Films is Not an “Adult Amusement Establishment”

Pangaea Cinema, LLC (d/b/a “the Guild”) owns and operates an art-house movie theater in the City of Albuquerque (“City”), New Mexico. The Guild usually shows non-pornographic independent films, but on a weekend in November of 2008, the Guild hosted an erotic film festival called “Pornotopia.” The Guild is located in a zone of Albuquerque that does not permit adult amusement establishments, defined by the City’s zoning code as “an 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.” After the City found out about Pornotopia, two zoning enforcement inspectors attended the festival and watched a film entitled “Couch Surfers,” which they determined placed an “emphasis on specified anatomical areas or specified sexual activities.” As a result, the City determined that the Guild was operating as an adult amusement establishment in a zone that did not allow for such establishments. Both the City of Albuquerque and the State of New Mexico charged the Guild with a criminal zoning violation, for which the metropolitan court found the Guild guilty. Both the district court and the Court of Appeals affirmed this conviction on appeal, and the Guild further appealed to the Supreme Court of New Mexico.

The Guild argued that the ordinance violated its First Amendment free speech rights. The Supreme Court of New Mexico explained that ordinances may place content-neutral zoning restrictions as long as they do not target the content of the expression at issue—here, the films. Ordinances that place time, place, and manner restrictions 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.” The ordinances must merely be limiting the negative “secondary effects” caused by the “accumulation of adult amusement establishments in a city.”

The court explained that while “Couch Surfers” was indisputably an adult film, the issue at hand was whether the theater was an adult amusement establishment. With respect to the Guild, the court described it as an “ordinary-looking art house theater” that did not appear to be “seedy, unsavory, or likely to drive down property values.” While Pornutopia was an adult event, it only took place on one weekend out of the year, and it did not have a negative impact on the neighborhood. Overall, there were no indications that the theater existed for the purpose of showing adult films. The court then looked to both the legislative intent and the plain meaning of the ordinance at issue. The purpose of the ordinance is likely to avoid the negative secondary effects of adult amusement businesses, and the ordinance itself does not address venues that “only occasionally show adult films.” Furthermore, the ordinary meaning of “adult amusement establishment” does not include a venue such as the Guild, which only showed adult films for one weekend out of the entire year.

The court additionally found that it would be unconstitutional to place zoning restrictions on a business that only occasionally features adult entertainment, citing to several court decisions from outside jurisdictions that have concluded the same. If a zoning law were to place restrictions on an establishment that shows adult films once a year, then the law would be more likely to unconstitutionally restrict the content of the films, rather than the secondary effects of the films. The court also explained that statutes should be interpreted so as to avoid constitutional concerns. As already established, it would raise constitutional concerns if the court were to interpret the ordinance here to apply to businesses that show adult films once a year. Thus, the court refused to interpret the ordinance in this way.

The City argued that if this interpretation of the ordinance were adopted, then other businesses would “show adult entertainment on a routine but not constant basis to avoid the bite of the zoning ordinances.” The court rejected this argument, finding that the City could avoid this issue by amending the ordinance to include a threshold level of adult entertainment. For example, the ordinance might be changed to apply to establishments that play a certain number of adult films per month. The court qualified this suggestion by stating that any such additions to the ordinance would need to be carefully evaluated such that they directly relate to negative secondary effects.

Since the Guild only occasionally showed adult films, the court found that the Guild was not an “adult amusement establishment” as defined by the relevant zoning ordinance and reversed the appellate court’s decision. As a result, the court did not reach the theater’s constitutional issues with the ordinance.

City of Albuquerque v. Pangaea Cinema, LLC, 310 P.3d 604 (NM 9/12/2013)

The opinion can be accessed at: http://caselaw.findlaw.com/nm-supreme-court/1644335.html


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