{
  "id": 1582594,
  "name": "HARRIS BOOKS, INC., a New Mexico corporation, Plaintiff-Appellant, v. CITY OF SANTA FE, et al., Defendants-Appellees, v. HARRIS BOOKS, INC., a foreign corporation, Defendant-Appellant",
  "name_abbreviation": "Harris Books, Inc. v. City of Santa Fe",
  "decision_date": "1982-06-30",
  "docket_number": "No. 13767",
  "first_page": "235",
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  "last_updated": "2023-07-14T19:13:49.367595+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "RIORDAN, J., and WOOD, Judge, concur."
    ],
    "parties": [
      "HARRIS BOOKS, INC., a New Mexico corporation, Plaintiff-Appellant, v. CITY OF SANTA FE, et al., Defendants-Appellees, v. HARRIS BOOKS, INC., a foreign corporation, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nPAYNE, Justice.\nThis case involves an attempt by the City of Santa Fe to regulate the location of adult bookstores. After careful consideration of the ordinance, we conclude that it is unconstitutionally vague and cannot be enforced.\nAt the outset, we emphasize the limited scope of our holding. The City proceeded on the basis that the speech involved was protected. Thus we are not, from a legal standpoint, dealing with obscenity, which is not entitled to first amendment protection and may therefore be outlawed. Paris Adult Theatre I. v. Slaton, 413 U.S. 49, 93 S.Ct. 2628. 37 L.Ed.2d 446 (1973). We consider the ordinance solely as a time, place and manner restriction on protected speech.\nThis appeal is a consolidation of two separate actions brought by the parties in district court. The City adopted the ordinance involved as Chapter 37 of the Santa Fe Code, now codified as Santa Fe, N.M., Code Ch. 3, art. I (1981). Thereafter, Harris Books, Inc., which operated an \u201cAdult Bookstore\u201d under the definition in the ordinance, filed a complaint seeking a declaratory judgment that the ordinance was unconstitutional. The City filed a separate suit for an injunction against the continued operation of the bookstore in violation of the ordinance. The actions were consolidated for trial and the district court found for the City, granting its requested relief and denying the relief sought by Books. Books has appealed.\nThe primary contention of Books, and the only one we address here, is that the ordinance is unconstitutionally vague. The relevant section of the ordinance reads as follows:\n3-1 \u2014 4 LOCATION OF ADULT BOOKSTORES, MOVIE THEATERS AND NEWSRACKS.\n\u2014No person, whether as a principal or agent, clerk or employee, either for himself or any other person, or as an officer of any corporation, or otherwise, shall place, maintain, own or operate any adult bookstore, adult movie theater or adult newsrack within one thousand feet of any parcel of real property on which is located any of the following facilities:\nA. a school primarily attended by minors;\nB. a church which conducts religious education classes for minors;\nC. a public park, or public recreation facility;\nD. a residential area; or\nE. a business frequented by minors.\nThe district court found that \u201c[t]he current location of Harris Books, Inc. on Cerrillos Road is within 1,000 feet of a nonconforming use residence.\u201d This finding was the basis for the court\u2019s determination that the bookstore\u2019s operation in the existing location violated the ordinance, justifying the injunction.\nUncontested evidence at trial suggests that the bookstore was also located within 1,000 feet of a family restaurant. The City claims this constitutes an independent ground for the court\u2019s holding, while Books asserts that the phrase \u201ca business frequented by minors\u201d is unconstitutionally vague. Because the trial court did not make a finding on this question, we decline to assume it was an independent ground for the decision and accordingly do not decide whether this phrase is unconstitutionally vague.\nBooks asserts that by referring simply to \u201ca residential area\" the ordinance leaves enforcement to the subjective discretion of the enforcement officer. Although deference is given to the interpretation of the ordinance by those charged with administration, Texas Nat. Theatres v. City of Albuquerque, 97 N.M. 282, 639 P.2d 569 (1982), the City\u2019s own witness, the zoning enforcement officer, could not give a uniform definition of the phrase. At one point the witness stated that two or more houses would be necessary to have a \u201cresidential area,\u201d while at other points he said that one residence would not receive less protection than several and that a multifamily apartment building would not constitute a \u201cresidential area.\u201d The term cannot refer to a residential zone since the \u201cnonconforming use residence\" which supported the trial court\u2019s conclusion was actually located in a commercial zone.\nThe City claims that there is no need for further statutory definition of \u201cresidential area\u201d because its plain meaning is an area of two or more residential structures.\nThe meaning which is so plain to the City is not so obvious to us. Since we are dealing with speech entitled to protection by the first amendment, each term of the ordinance must be specific enough to afford notice to potential violators. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); See Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).\nThe City has discussed at length its police power to regulate \u201cadult\u201d entertainment through zoning ordinances as recognized in Young v. American Mini-Theaters, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).\nThe Young case involved an ordinance which provided that an adult theater may not be located within 1,000 feet of any two other \u201cregulated uses\u201d or within 500 feet of a residential area. The City claims that it fashioned its ordinance \u201cwith a close eye\u201d on the Young decision and that the 1,000 foot provision in the City\u2019s ordinance \u201cis virtually identical with the Detroit ordinance approved in [Young].\u201d The City\u2019s eye failed to perceive footnote 2 in Young:\nThe District Court held that the original form of the 500-foot restriction was invalid because it was measured from \u201cany building containing a residential, dwelling or rooming unit.\u201d The city did not appeal from that ruling, but adopted an amendment prohibiting the operation of an adult theater within 500 feet of any area zoned for residential use. The amended restriction is not directly challenged in this litigation.\nThe federal district court which heard the Young case at the trial level considered the nature of the Detroit ordinances and noted that they \u201cprohibit [the location of adult bookstores] within 500 feet of a residential dwelling or rooming unit.\u201d Nortown Theatre Incorporated v. Gribbs, 373 F.Supp. 363, 366 (E.D.Mich.1974). Thus, not only did the term \u201cresidential area\u201d used by the Supreme Court in Young have a meaning different from that which the City now claims is \u201cclear\u201d on the face of the ordinance, but the term was deleted in a subsequent amendment and was not actually considered in Young.\nThe federal district court held that the original 500-foot restriction was invalid under the equal protection clause because it was not necessary to promote any expressed compelling state interest. This holding was not appealed. The City asserts that its restriction does promote a compelling interest. We need not address the claim because the ordinance fails for vagueness; however, we note that the concurring opinion in Young considered it essential that the governmental interest prompting the 1,000-foot zone between regulated uses was \u201cwholly unrelated to any suppression of free expression.\u201d Young, supra, 421 U.S. at 81, 96 S.Ct. at 2457-58 (Powell, J., concurring). For example, the justification must be based on interests in health, safety, etc., not merely on a desire to ban protected speech.\nIn short, we find little similarity in the purpose, wording, or effect between the City\u2019s ordinance and the ordinances considered in Young.\nBooks also raised questions as to the method of measuring the distances and as to the amortization period provisions of the ordinance. In light of our disposition of the vagueness issue, we do not reach these issues.\nAccordingly, the judgment below is reversed.\nIT IS SO ORDERED.\nRIORDAN, J., and WOOD, Judge, concur.",
        "type": "majority",
        "author": "PAYNE, Justice."
      }
    ],
    "attorneys": [
      "Michael E. Vigil, Jeffrey M. Libit, Albuquerque, Arthur M. Schwartz, Denver, Colo., for plaintiff-appellant.",
      "Frank R. Coppler, Richard C. Bosson, Santa Fe, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "647 P.2d 868\nHARRIS BOOKS, INC., a New Mexico corporation, Plaintiff-Appellant, v. CITY OF SANTA FE, et al., Defendants-Appellees, v. HARRIS BOOKS, INC., a foreign corporation, Defendant-Appellant.\nNo. 13767.\nSupreme Court of New Mexico.\nJune 30, 1982.\nMichael E. Vigil, Jeffrey M. Libit, Albuquerque, Arthur M. Schwartz, Denver, Colo., for plaintiff-appellant.\nFrank R. Coppler, Richard C. Bosson, Santa Fe, for defendants-appellees."
  },
  "file_name": "0235-01",
  "first_page_order": 273,
  "last_page_order": 275
}