May 29, 2012 – City of Albuquerque v. Pangaea Cinema LLC d/b/a Guild Cinema LLC, and Keif Henley, Registered Agent, No. 30,380

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:

Filing Date: _ May 29, 2012

NO. 30,3380

CITY OF ALBUQUERQUE,
Plaintiff-A ppellee,

V.

PANGAEA CINEMA LLC d/b/a
GUILD CINEMA LLC, and

KEIF HENLEY, Registered Agent,
Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge

City of Albuquerque
Robert D. Kidd, Jr., Interim City Attomey
John E. DuBois, Assistant City Attomey

Albuquerque, NM
for Appellee

ACLU of New Mexico
Laura Schauer Ives

Albuquerque, NM

Bach & Garcia LLC
George Bach

Albuquerque, NM

Kan Momissey
Albuquerque, NM

for Appellants

OPINION
CASTILLO, Chief Judge.
{1} 	The Guild Cinema (the Guild), a locally owned art-house movie theater in the
Nob Hill neighborhood of the City of Albuquerque (the City), was prosecuted under
the City’s zoning regulations covering adult amusement establishments for showing
one pornographic film during a weekend festival of X-rated fare. The Guild argues
that the City’s crackdown on the showing of just one adult film outside of a zone
designated for adult entertainment violates a mainstream theater’s free-speech rights
by misusing an ordinance that is unconstitutionally vague and unfairly applied in this
instance. We conclude that the ordinance is not vague and was not unconstitutionally
applied, and we affirm.
I. 	BACKGROUND
{2} 	The parties stipulated to the facts before the district court. Pangaea Cinema,
LLC does business as a single-screen movie theater known as the Guild Cinema in the
Nob Hill neighborhood of the City along East Central Avenue. Although its most
common fare consists of independent feature films and documentaries, in November
2008 the Guild played host to its second annual “Pornotopia” festival, a weekend slate
of erotic films. During the festival’s second day, two code enforcement officers for
the City attended two film screenings. The officers, one male and one female, both

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concluded that one of the films, “Couch Surfers: 	Trans Men in Action,” met the
definition of an adult film under the City’s Zoning Code (the Code). Albuquerque,
N.M., Zoning Code ch. 14, art. XVI (2008, as amended through 2011). A specific
ordinance within the Code, Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, §
14-16-1-5(B) (the Ordinance) allows adult films to be shown only in specified zones
of the City and prohibits the public screening of such films in all other areas, including
the business district of Nob Hill where the Guild is situated. A criminal complaint
was filed charging the Guild with operating as an adult amusement establishment
outside of an area zoned for such activity. The Guild concedes that the film it showed
featured “specified anatomical areas” and “specified sexual activities” as defined by
the Ordinance. The City acknowledges that the exhibition of one adult film did not
cause negative secondary effects, such as criminal activity. Affidavits filed by some
of the Guild’s commercial neighbors reported positive effects from the event, in
particular, increased business at their establishments during that weekend.
{3} 	The Guild was convicted in metropolitan court, and it appealed to district court.
The parties stipulated to facts and exhibits, and they agreed to forgo a trial and agreed
instead to have the matter decided on the Guild’s motion to dismiss the charge. The
district court affirmed the findings of the metropolitan court, upheld the conviction in
a thirty-one-page opinion, and fined the cinema $500 for the infraction. The Guild

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filed a motion for reconsideration that was denied by the district court. This appeal
followed.
II. 	DISCUSSION
{4} 	The Guild argues that it should not be categorized as an adult amusement
establishment under what it considers to be the City’s unconstitutionally vague
Ordinance and that, because no secondary effects resulted from the showing of the
film, the City exceeded its zoning authority by impermissibly targeting the content of
the Guild’s speech in violation of the theater’s free-speech rights. We take those three
arguments in turn, and we review them de novo. 	See Gomez v. Chavarria,
2009-NMCA-035, ¶ 6, 146 N.M. 46, 206 P.3d 157 (stating that constitutional
questions and issues of statutory construction are reviewed de novo).
A. 	The Ordinance Need Not Be More Narrowly Construed
{5} 	The Guild first asks us to avoid the constitutional issues and find that a close
reading of the City’s Ordinance leads to the conclusion that the Ordinance does not
apply to the Guild’s screening of a single adult film. 	The Ordinance reads, in
pertinent part:
ADULT 	AMUSEMENT 	ESTABLISHMENT. 	An
establishment such as an auditorium, bar, cabaret, concert hall, nightclub,
restaurant, theater, or other commercial establishment that provides
amusement or entertainment featuring one or more of the following:
(1) 	A live performance, act or escort service distinguished or

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characterized by an emphasis on the depiction, description, exposure, or
representation of specified anatomical areas or the conduct or simulation
of specified sexual activities; or
(2) 	Audio or video displays, computer displays, films, motion
pictures, 	slides 	or 	other 	visual 	representations 	or 	recordings
characterized 	or 	distinguished 	by 	an 	emphasis 	on 	the 	depiction,
description, exposure or representation of specified anatomical areas or
the conduct or simulation of specified sexual activities.
Albuquerque, N.M., Rev. Ordinances § 14-16-1-5(B) (emphasis added). 	Another
applicable ordinance states: “Any use not designated a permissive or conditional use
in a zone is specifically prohibited from that zone, except as otherwise provided
herein.” 	Albuquerque, N.M., Rev. Ordinances ch. 14, art. XVI, § 14-16-1-3(B)
(1980).
{6} 	When interpreting an ordinance, we look to its language: 	“If the language
makes the [ordinance] understandable and sensible, that is all that is necessary to
uphold it as valid.” 	State ex rel. Children, Youth & Families Dep’t v. Shawna C.,
2005-NMCA-066, ¶ 34, 137 N.M. 687, 114 P.3d 367 (internal quotation marks and
citation omitted). “Legislative intent is determined primarily from the language of the
statute and from the legislative purpose to be achieved.” 	State v. Andrews,
1997-NMCA-017, ¶ 5, 123 N.M. 95, 934 P.2d 289 (citation omitted). “In order to
construe faithfully what the Legislature meant[,] . . . we consider the plain meaning
of the words used in the context of the statutory text as a whole.” Quynh Truong v.

5
Allstate Ins. Co., 2010-NMSC-009, ¶ 37, 147 N.M. 583, 227 P.3d 73 (citation
omitted). “A statute is read literally if its words are plain and unambiguous, provided
such a construction would not lead to an injustice, absurdity, or contradiction.”
Andrews, 1997-NMCA-017, ¶ 5.
{7} 	In the case before us, the portion of the Ordinance italicized above defines an
adult amusement establishment, in one instance, as a “theater . . . that provides . . .
entertainment featuring . . . motion pictures . . . distinguished by an emphasis on . . .
specified anatomical areas or the conduct or simulation of specified sexual activities.”
The Guild first zeroes in on the word “featuring” and argues that it does not
encompass the showing of just one adult film; rather it should be interpreted to mean
“regularly featur[ing]” such films. The dissent agrees with the Guild and concludes
that characterizing the Guild as an “adult amusement establishment” for its single
showing of an adult film defies common understanding. Dissenting Opinion, ¶ 50.
We disagree and explain. As we have stated, we look to the plain language of the
Ordinance. To include the concept that the showing must be regular, we would have
to add a word that is not there and rely on other jurisdictions that interpret differently
worded statutes. “Feature,” in its verb form, is defined as “to make a feature of; give
special prominence to,” with the following example given: “the theater was featuring
a murder-mystery film.” Webster’s Third New Int’l Dictionary 832 (1976). As the

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district court noted, movie theaters and television stations often advertise the
presentation of a feature film. To bolster its argument, the Guild ventures to other
jurisdictions for interpretive support. 	It unconvincingly relies on one case that is
based on an ordinance that does not use the word “feature”; one case in which the
ordinance explicitly uses the phrase “regularly features”; and two cases, including an
unpublished opinion out of Alaska, that deal with live “adult cabaret.” See Schultz v.
City of Cumberland, 228 F.3d 831 (7th Cir. 2000); Schmitty’s City Nightmare, LLC
v. City of Fond Du Lac, 391 F. Supp. 2d 745 (E.D. Wis. 2005); Stevens v. Matanuska-
Susitna Borough, Nos. A-9674, A-9683, 2007 WL 2143008 (Alaska Ct. App. July 25,
2007); People v. Super. Ct. (Lucero), 774 P.2d 769 (Cal. 1989). None is persuasive
or materially on point with the statutory analysis in this case.
{8} 	Finally, the Guild points out a difference between the Ordinance’s reference to
live exhibition and its reference to the exhibition of films. 	The Ordinance uses
singular language to refer to any live exhibition and plural language for the exhibition
of film. According to the Guild, this language difference suggests that just one live
performance could be expected to produce negative secondary effects but that it would
take multiple exhibitions of films to create those effects and thus trigger enforcement.
We disagree. 	The Ordinance explicitly provides that any plural language used
includes the singular and vice versa, Albuquerque, N.M., Rev. Ordinances § 14-16-1-

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5(A)(2), and we see no reason to find an exception to that common statutory language.
Cf. State ex rel. Richardson v. 5th Jud. Nominating Comm’n, 2007-NMSC-023, ¶ 17,
141 N.M. 657, 160 P.3d 566. Nothing in the Ordinance suggests that the City Council
made a distinction between live acts and feature films.
{9} 	We are not persuaded by the Guild’s arguments that the Ordinance may and
should be more narrowly construed to avoid constitutional analysis. We agree with
the district court’s interpretation. When the Ordinance is read literally, nothing in its
plain meaning compels us to transform the word “featuring” into “regularly
featuring.” 	Thus, we conclude that any theater which features an adult film—i.e.,
hosts a screening of a movie that depicts the anatomical areas and sexual acts listed
in the Ordinance—is an adult amusement establishment as defined by the Ordinance,
even if only one movie is shown, and, as such, it is subject to the terms of the
Ordinance.
B. 	The Ordinance Is Not Unconstitutionally Vague
{10} 	The Guild next contends that the Ordinance—specifically its definition of an
“adult amusement establishment”—fails to give adequate notice that the screening of
just one adult film outside a permissible zone transforms a mainstream theater into an
adult amusement establishment. Thus, the Guild asks us to declare the Ordinance void
for vagueness as applied to the Guild.

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{11} 	“A strong presumption of constitutionality underlies each statute, and the
defendant has the burden to prove unconstitutionality beyond all reasonable doubt.”
Shawna C., 2005-NMCA-066, ¶ 32. The United States Constitution “does not require
impossible standards of clarity in statutes, only that the language convey[] sufficiently
definite 	warning 	as 	to 	the 	proscribed 	conduct 	when 	measured 	by 	common
understanding and practices.” 	Id. ¶ 34 (alteration in original) (internal quotation
marks and citation omitted). 	Neither does the Constitution require “mathematical
certainty from our language[,]” but rather “flexibility and reasonable breadth[.]”
Grayned v. City of Rockford, 408 U.S. 104, 110 (1972) (internal quotation marks and
citation omitted). 	Our task is not to appraise the wisdom of the City’s decision,
because a city “‘must be allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems.’” City of Renton v. Playtime Theatres, Inc.
(Renton), 475 U.S. 41, 52 (1986) (quoting Young v. Am. Mini Theatres, Inc., 427 U.S.
50, 71 (1976)). Thus, we will “strive to avoid” a remedy that requires us to “tamper
with the text” of an ordinance. United States v. Nat’l Treasury Emps. Union, 513 U.S.
454, 478 (1995). As the New Mexico Supreme Court has stated,
In the enactment of statutes[,] reasonable precision is required.
Legislative enactments may be declared void for uncertainty if their
meaning is so uncertain that the court is unable, by the application of
known and accepted rules of construction, to determine what the
[L]egislature intended with any reasonable degree of certainty. 	But
absolute or mathematical certainty is not required in the framing of a

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statute.
State ex rel. Bliss v. Dority, 55 N.M. 12, 29, 225 P.2d 1007, 1017 (1950).
{12} 	A statute or ordinance will be deemed to be unconstitutionally vague if it has
one of two fatal characteristics: 	it fails to give people of ordinary intelligence a
reasonable opportunity to know what activity is prohibited so as to allow them to
conform their actions to the law, or it fails to provide explicit standards and thus
invites police officers, prosecutors, judges, or juries to engage in arbitrary and
discriminatory enforcement. State v. Laguna, 1999-NMCA-152, ¶¶ 25-26, 128 N.M.
345, 992 P.2d 896. Finally, we have observed that a defendant “will not succeed if
the statute clearly applied to the defendant’s conduct.” Shawna C., 2005-NMCA-066,
¶ 32. The standard two-step analysis follows.
1. 	Notice to Individuals of Ordinary Intelligence
{13} 	The Guild points to a dearth of previous similar convictions by the City and to
narrow interpretations of such laws in other jurisdictions in an effort to argue that a
proprietor in its position would logically conclude that the Ordinance does not apply
to an independent cinema showing only one adult film. As we discussed above, the
decisions of other jurisdictions are not on point or persuasive. We instead focus on
how the Ordinance applies to the facts before us, based on an interpretation by a
reasonable person. See Dickerson v. Napolitano, 604 F.3d 732, 745-46 (2d Cir. 2010)

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(“The standard is an objective one. Courts ask whether the law presents an ordinary
person with sufficient notice of . . . what conduct is prohibited or proscribed[.]”
(internal quotation marks and citations omitted)).
{14} 	Two recent federal cases offer guidance in judging whether a statute or
ordinance gives adequate notice to people that their behavior is subject to a
legislation’s proscriptions. In Holder v. Humanitarian Law Project, __ U.S. __, __,
130 S. Ct. 2705, 2712-14 (2010), United States citizens and groups sought an
injunction to prohibit enforcement of a criminal ban on providing “material support”
or “expert advice or assistance” to designated foreign terrorist organizations, alleging
unconstitutional vagueness of the language of the statute. 	Id. (internal quotation
marks and citation omitted). Noting that “perfect clarity and precise guidance have
never been required” in the drafting of a statute—even one limiting expressive
activity—the United States Supreme Court concluded: “[The p]laintiffs’ activities .
. . fall comfortably within the scope of ‘expert advice or assistance’: A reasonable
person 	would 	recognize 	that 	teaching 	[an 	organization] 	how 	to 	petition 	for
humanitarian relief before the United Nations involves advice derived from, as the
statute puts it, ‘specialized knowledge.’” Id. at 2719-20 (internal quotation marks and
citations omitted). The Court focused on the meaning as applied to the parties before
it: 	“Of course, the scope of the material-support statute may not be clear in every

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application. But the dispositive point here is that the statutory terms are clear in their
application to plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness
challenge must fail.” Id. at 2720.
{15} 	Similarly, in Dickerson, a New York statute prohibited people from entering
federal buildings while carrying unauthorized police shields or other insignia “in any
way resembling” that worn by police officers. See 604 F.3d at 736-37 (emphasis and
citation omitted). The plaintiffs, carrying authentic-looking but unauthorized police
badges into a federal building, sued over unconstitutional enforcement of the statute
and appealed when the case was dismissed. 	See id. 	The court stated that a literal
reading of the statute could lead to such absurd results as criminalizing a children’s
game of cops and robbers, and might be susceptible to a facial challenge; however, the
court held that an analysis of the statute, as applied to the plaintiffs, gave them notice
that their actions would violate the law. 	See id. at 746. 	The court, conceding the
statute suffered from “ambiguity as to the margins,” concluded: 	“[N]either the
widespread availability of hats and T-shirts bearing the NYPD logo, nor the
prevalence of toy badges, would be likely to confuse a reasonable person as to the
illegality of an adult carrying a facsimile of a police shield in his belongings while
entering a government building.” Id. at 747.
{16} 	Like the parties in Holder and Dickerson, the Guild challenges an ordinance

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that might be hampered by ambiguity in some settings. But when the Guild exhibited
what both parties agree was an adult film, a reasonable theater owner would have been
on notice that the Ordinance governing adult amusement establishments would come
into play. The Guild, seeking to exploit any weakness it might find in the Ordinance,
offers a hypothetical: 	If the theater had exhibited a five-minute movie featuring
topless women discussing Descartes, would it be fairly punished under the Ordinance?
That is a provocative question but a red herring; such a hypothetical might help
sustain a facial challenge, but here, with an as-applied challenge, we deal with the
concrete facts at hand. And the Guild does not dispute that it showed an adult film
outside of a circumscribed zone as defined in the Ordinance. Had it merely shown an
art film featuring some nudity—as many mainstream and independent cinemas do on
a regular basis—and been cited for violating the Ordinance, then the Guild could
make that argument. In this case, such a hypothetical has no bearing on our analysis.
Relying on our statutory interpretation above, we determine that the Guild knew it was
showing a film as defined by the Ordinance and, like the parties in Holder and
Dickerson, had adequate notice that its conduct was prohibited by the Ordinance as
applied in this situation.
2. 	Standards or Guidelines for Enforcement
{17} 	Alternatively, the Guild argues that the Ordinance invites arbitrary and

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discriminatory enforcement. A legislative body may not “impermissibly delegat[e]
basic policy matters to policemen, judges, and juries for resolution on an ad hoc and
subjective 	basis, 	with 	the 	attendant 	dangers 	of 	arbitrary 	and 	discriminatory
application[.]” 	State v. Myers, 2011-NMSC-028, ¶ 39, 150 N.M. 1, 256 P.3d 13
(emphasis, internal quotation marks, and citation omitted). We have acknowledged,
though, that the duties of law enforcement will always require the exercise of a certain
degree of police judgment. Shawna C., 2005-NMCA-066, ¶ 39.
{18} 	In the case before us, we are provided with no evidence that the City selectively
enforced the Ordinance or singled out the Guild. We also find no evidence that the
City improperly trained its officers in identifying adult films and citing violators of
the Ordinance. In its argument, the Guild deals mainly in conjecture and speculation,
and it relies on the suggestion that because the Guild knows of no other mainstream
theater that has been prosecuted for the single showing of an adult film that the City
has 	arbitrarily 	enforced 	the 	Ordinance. 	It 	cites 	a 	federal 	case 	from
Colorado—featuring a bakery owner selling a number of adult-oriented cakes—to
support its argument. See Pensack v. City & County of Denver, 630 F. Supp. 177 (D.
Colo. 1986). But in Pensack, where the court found inadequate notice to the bakery
and insufficient standards for law enforcement, the ordinance at issue defined adult
establishments as those having “substantial” or “significant” portions of its stock

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emphasizing sexual activities. 	Id. at 178. 	Here, the Ordinance has no threshold
standard for movie theaters exhibiting adult fare. Pensack’s reasoning does not apply
here. In the absence of any other evidence, we cannot conclude that the Ordinance is
susceptible to arbitrary or discriminatory enforcement, particularly when applied to
the Guild’s screening of what it admits to be an adult film. Because the Guild fails
both prongs of the analysis, we conclude that the Ordinance is not unconstitutionally
vague as applied in this instance.
C. 	The Ordinance Is a Proper Time-Place-Manner Restriction and Does Not
Abridge Freedom of Speech As Applied to the Guild
1. 	N.M. Constitution Article II, Section 17 vs. First Amendment
{19} 	The parties begin with a debate over whether Article II, Section 17 of the New
Mexico Constitution affords free-speech rights that are greater than those declared in
the First Amendment of the United States Constitution. The Guild asks that we “bear
this heightened protection in mind” when conducting our analysis and to err on the
side of favoring free-speech rights when faced with a split in the law of other
jurisdictions. For that argument, the Guild relies on City of Farmington v. Fawcett,
114 N.M. 537, 843 P.2d 839 (Ct. App. 1992), an obscenity case that has no bearing
on the facts of the case before us. Although the Guild pushes for an analysis under the
New Mexico Constitution, it offers the alternative argument that the Ordinance also
fails under the United States Constitution.

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{20} 	New Mexico has adopted the interstitial approach to interpreting our state
constitution. 	See State v. Perry, 2009-NMCA-052, ¶ 24, 146 N.M. 208, 207 P.3d
1185. “A state court adopting this approach may diverge from federal precedent for
three reasons: 	a flawed federal analysis, structural differences between state and
federal government, or distinctive state characteristics.” 	State v. Gomez, 1997-
NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. “[S]tate courts should be sensitive to
developments in federal law. 	Federal precedent in areas addressed by similar
provisions in our state constitutions can be meaningful and instructive.” 	Id. ¶ 21
(internal quotation marks and citation omitted). We find none of those three situations
to apply in the case before us. Further, we have previously held that “the protection
of the federal and state constitutions are the same, at least with respect to
content-neutral restrictions.” State v. Ongley, 118 N.M. 431, 432, 882 P.2d 22, 23 (Ct.
App. 1994), modified on other grounds by Gomez, 1997-NMSC-006; see State v.
Rendleman, 2003-NMCA-150, ¶ 58, 134 N.M. 744, 82 P.3d 554, overruled on other
grounds by State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105. Thus,
we see no reason to depart from traditional federal jurisprudence in this area, and we
proceed with a standard First Amendment analysis.
2. 	Facial vs. As-Applied Challenges
{21} 	As a threshold matter, we note that the parties spar over the distinction between

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facial and as-applied challenges and its application to the case before us. While we
disagree with the Guild’s assertion that the district court refused to conduct an as-
applied analysis, we do note that the district court at times may have overemphasized
the significance of the Guild’s choice to not press a facial challenge in this case when
analyzing the distinction between facial and as-applied challenges. 	The Guild has
stipulated that it did not bring a facial challenge; it did not stipulate to the facial
validity of the Ordinance in all its applications.
{22} 	While the Guild’s choice to forgo a facial challenge to the Ordinance weakens
the Guild’s arguments overall, that choice does not render its action null and void, nor
does it obviate the need for a full analysis of the time-place-manner zoning, which we
flesh out in the section that follows. The United States Supreme Court has stated that
the distinction between facial and as-applied challenges “goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a complaint.” Citizens
United v. Fed. Election Comm’n, __ U.S. __, __, 130 S. Ct. 876, 893 (2010).
{23} 	Finally, we resist any temptation to take it upon ourselves to expand the scope
of our review to analyze the constitutionality of the Ordinance in its entirety under the
theory of overbreadth. The overbreadth doctrine is “strong medicine” to be applied
“sparingly and only as a last resort.” 	Broadrick v. Oklahoma, 413 U.S. 601, 613
(1973), superseded by statute on other grounds as stated in Bauers v. Cornett, 865

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F.2d 1517 (8th Cir. 1989). The United States Supreme Court has further reasoned:
“It is not the usual judicial practice, however, nor do we consider it generally
desirable, to proceed to an overbreadth issue unnecessarily—that is, before it is
determined that the statute would be valid as applied.” 	Bd. of Trustees of State
University of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989). “Such a course would convert
use of the overbreadth doctrine from a necessary means of vindicating the plaintiff’s
own right not to be bound by a statute that is unconstitutional into a means of
mounting gratuitous wholesale attacks upon state and federal laws.” Id. at 485. We
thus proceed to conduct a time-place-manner analysis of the constitutionality of the
Ordinance as applied to the Guild.
3. 	Time-Place-Manner Zoning
{24} 	Our First Amendment analysis recognizes the bedrock principle of the right to
free speech articulated by the framers of both the state and federal constitutions. “‘At
the heart of the First Amendment is the recognition of the fundamental importance of
the free flow of ideas and opinions on matters of public interest and concern.’” United
States v. Strandlof, 667 F.3d 1146, 1156-57 (10th Cir. 2012) (quoting Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988)). “[T]he First Amendment means
that government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content.” 	Ashcroft v. A.C.L.U., 535 U.S. 564, 573 (2002)

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(alteration, internal quotation marks, and citation omitted). “However, this principle,
like other First Amendment principles, is not absolute.” 	Ashcroft, 535 U.S. at 573.
We have long held that First Amendment rights “are not immune from governmental
regulation” and a city “may impose reasonable restrictions on the time, place, and
manner in which such rights are exercised.” City of Las Cruces v. Huerta, 102 N.M.
182, 186, 692 P.2d 1331, 1335 (Ct. App. 1984) (internal quotation marks and citation
omitted). The zoning power of local governments, which allows limited restrictions
on First Amendment freedoms, “is undoubtedly broad and its proper exercise is an
essential aspect of achieving a satisfactory quality of life in both urban and rural
communities.” 	Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981). The
United States Supreme Court, however, has cautioned, such zoning power “is not
infinite and unchallengeable[.]” Id.
{25} 	The rationale for allowing zoning regulations in this context is that a “city’s
interest in attempting to preserve the quality of urban life is one that must be accorded
high respect.” Young, 427 U.S. at 71. In Young, the Supreme Court upheld a Detroit
zoning ordinance that prohibited adult amusement establishments, including movie
theaters, from locating within 1,000 feet of one another. 	See id. at 52, 72-73. The
plurality opinion and concurrence agreed that such a regulation of adult theaters was
not an impermissible restriction of First Amendment rights, because it was targeted

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not at the content of the speech involved but at the negative secondary effects caused
by adult entertainment. See id. at 71 n.34, 78-79 (Powell, J., concurring). The Court
found no restriction on the amount of speech allowed; merely that the speech was
limited to certain areas. See id. at 51. Ten years later, the Court upheld an ordinance
prohibiting adult amusement establishments from locating within 1,000 feet of
residential areas, churches, parks, and schools. See Renton, 475 U.S. at 43, 52. The
Court found that the ordinance left five percent of the city’s land available for use by
adult establishments, an amount deemed adequate to show that the city was not
targeting the content of the speech. See id. at 53-54.
{26} 	Young and Renton thus permit municipalities to use zoning powers to reduce
or eliminate the negative secondary effects of adult entertainment by either scattering
such establishments or concentrating them in circumscribed zones with similar
activities. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002);
Renton, 475 U.S. at 52; Young, 427 U.S. at 72-73. Such zoning ordinances are subject
to intermediate scrutiny. See Alameda Books, Inc., 535 U.S. at 434.
{27} 	While the Supreme Court has never veered from that line of case law, it has
struggled with the “fiction” of using the term “content neutral” to cover zoning laws
that clearly apply only to adult material. 	Alameda Books, Inc., 535 U.S. at 448
(Kennedy, J., concurring). However, the Court has endorsed the zoning power over

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adult amusement establishments under the idea that cities are not regulating the
content of the entertainment provided by these businesses but rather the negative
secondary effects that such adult material produces in the surrounding community,
such as crime and sex offenses. See id. at 434; Renton, 475 U.S. at 48; Young, 427
U.S. at 54-55. Such regulations are contrasted with those that impermissibly target
the direct effects of the speech on the listener or viewer. “Regulations that focus on
the direct impact of speech on its audience present a different situation. Listeners’
reactions to speech are not the type of ‘secondary effects’ we referred to in Renton.”
Boos v. Barry, 485 U.S. 312, 321 (1988). For instance, if the City had enacted the
Ordinance based on fears of the psychological impact that adult films have on
viewers, then the regulation would not be content-neutral, and thus would be subject
to the highest level of scrutiny under First Amendment analysis. See Boos, 485 U.S.
at 321. We must be careful to focus our “principal inquiry” on determining “whether
the government has adopted a regulation of speech because of disagreement with the
message it conveys.” 	Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
“Thus, the Court has recognized that this kind of regulation, though called content
neutral, occupies a kind of limbo between full-blown, content-based restrictions and
regulations that apply without any reference to the substance of what is said.”
Alameda Books, Inc., 535 U.S. at 457 (Souter, J., dissenting).

21
a. 	Strict Scrutiny vs. Intermediate Scrutiny
{28} 	As a preliminary matter, the Guild seeks to exploit that subtle fissure between
content-based and content-neutral regulations in the realm of adult entertainment. It
argues that the City must be targeting the content of the film, because the City could
not possibly find it necessary to police the negligible or nonexistent secondary effects
from the showing of only one film. The Guild spends a good part of its brief in chief
urging application of the highest standard of review in this case: strict scrutiny. We
reject that argument.
{29} 	“Strict scrutiny applies when the violated interest is a fundamental personal
right or civil liberty guaranteed by the constitution.” 	ACLU of N.M. v. City of
Albuquerque, 2006-NMCA-078, ¶ 19, 139 N.M. 761, 137 P.3d 1215 (internal
quotation marks and citation omitted). Under that heightened review of a legislative
action, the burden of proof is on the government to show that it has a compelling
interest in the challenged scheme and that it has accomplished its goals by employing
the least restrictive means. See id. If the City were targeting content of adult films
with the Ordinance, strict scrutiny would apply; if it were merely seeking to combat
negative secondary effects of such films, then we would apply a more relaxed level
of scrutiny (discussed in the next section below). See Alameda Books, Inc., 535 U.S.
at 448 (Kennedy, J., concurring). The Guild argues that the City improperly targeted

22
the content of its expression rather than the negative secondary effects, but the Guild
misapplies case law in order to make its point. The Guild claims that the task of this
Court is to examine whether either negative secondary effects or the content of the
movie were the predominant concern behind application of the Ordinance. On the
contrary, the cases cited by the Guild state that a court must examine whether
secondary effects or content were the predominant concern behind the enactment of
an ordinance—not its subsequent application. See R.V.S., L.L.C. v. City of Rockford,
361 F.3d 402, 409 (7th Cir. 2004) (stating that “we must examine whether the
[o]rdinance was designed to suppress the content of erotic expression or to address the
negative secondary effects caused by such expression” (emphasis added)); Joelner v.
Vill. 	of 	Washington 	Park, 	Ill., 	378 	F.3d 	613, 	623 	(7th 	Cir. 	2004) 	(“The
‘content-neutrality’ inquiry is therefore subsumed by the inquiry into a municipality’s
purpose in enacting the regulation.”). The rest of the Guild’s strict-scrutiny argument
proceeds from that faulty premise.
{30} 	Here, without a full trial below on the issues, there is no evidence that the City
was targeting the content of adult films in enacting the Ordinance; in fact, the City
asserts that its predominant concern in enacting the Ordinance was combating the
secondary effects of such films. The Guild does not rebut that contention. Absent
evidence that the City was going after content when enacting the Ordinance, we

23
refrain from analyzing its actions under the strict scrutiny that would favor the Guild.
See BBI Enters., Inc. v. City of Chicago, 874 F. Supp. 890, 895 (N.D. Ill. 1995)
(“There is no need to elaborate further on the deficiencies in either party’s proof, for
where as here neither side has supplied entirely reliable information, the party having
the burden of persuasion . . . must suffer the consequences of such uncertainty.”). We
thus proceed with the intermediate level of time-place-manner scrutiny.
b. 	Time-Place-Manner Analysis
{31} 	The United States Supreme Court starts the analysis of time-place-manner
regulations by asking two threshold questions: 	(1) Does the ordinance ban adult
establishments altogether, and (2) does the regulation target the content of the
expression? See Alameda Books, Inc., 535 U.S. at 434. If the answer to each question
is “no,” then the ordinance can be analyzed under time-place-manner regulation. See
id. The New Mexico Supreme Court has outlined three requirements for valid time-
place-manner zoning: (1) the restriction on speech must be content neutral, that is,
“justified without reference to the content of the regulated speech”; (2) the restriction
must serve a “significant governmental interest”; and (3) the restriction must “leave
open ample alternative channels for communication of the information.” 	Stuckey’s
Stores, Inc. v. O’Cheskey, 93 N.M. 312, 319, 600 P.2d 258, 265 (1979) (internal
quotation marks and citation omitted). The United States Supreme Court expands on

24
the second prong by requiring that the ordinance in question be “narrowly tailored”
to serve that significant governmental interest. Renton, 475 U.S. at 52, 63 (citation
omitted).
{32} 	The appropriate standard for “reviewing challenges to content-neutral zoning
ordinances targeting the secondary effects of adult establishments” applies “regardless
of whether that challenge is styled as facial or as-applied.” Independence News, Inc.
v. City of Charlotte, 568 F.3d 148, 155 n.3 (4th Cir. 2009). Lower courts have
faithfully 	applied 	the 	analysis 	during 	the 	past 	quarter 	century: 	“Renton’s
constitutional framework grants the city broad discretion to choose the means and
scope of its regulation of sexually oriented businesses.” Z.J. Gifts D-2, L.L.C. v. City
of Aurora, 136 F.3d 683, 689 (10th Cir. 1998).
I. 	Content Neutral
{33} 	We first dispose of the two threshold questions. First, the City has not entirely
banned adult amusement establishments from operating in the City, either directly or
indirectly. 	Cf. Schad, 452 U.S. at 76 (“As we have observed, Young . . . did not
purport to approve the total exclusion from the city of theaters showing adult . . .
materials.”). The City, in an unrebutted assertion, states that about five percent of the
municipality’s acreage is zoned to allow the exhibition of adult films. That level of
set-aside comports with the amount of land mass deemed reasonable by the Court in

25
Renton. See 475 U.S. at 53. Second, the Guild does not challenge the City’s assertion
that, in enacting the Ordinance, the City was not regulating content but rather the
secondary effects that flow from the showing of adult films. The Guild also concedes
that the City has that zoning authority under its powers to regulate the time, place, and
manner of the entertainment offered by adult amusement establishments.
{34} 	It is when we get to the time-place-manner analysis that the Guild challenges
the City’s actions. The Guild contends that, as applied in this case, the City fails the
two prongs of the Renton test: that the Ordinance is not narrowly tailored to serve a
significant governmental interest and that it does not leave the Guild with adequate
alternative channels of communication.
ii. 	Narrowly Tailored to Serve a Significant Governmental Interest
{35} 	An ordinance qualifies as narrowly tailored “so long as the regulation promotes
a substantial governmental interest that would be achieved less effectively absent the
regulation, and the means chosen are not substantially broader than necessary to
achieve that interest. 	If these standards are met, courts should defer to the
government’s reasonable determination.” 	Ward, 491 U.S. at 782-83. 	“The
government’s purpose is the controlling consideration.” 	Id. at 791. 	While the
regulation must be narrowly tailored, “it need not be the least restrictive or least
intrusive means of doing so.” 	Id. at 798; see Fox, 492 U.S. at 477 (“We have

26
refrained from imposing a least-restrictive-means requirement—even where core
political speech is at issue—in assessing the validity of so-called time, place, and
manner restrictions.”).
{36} 	The City asserted that its goal in enacting the Ordinance was to combat the
negative secondary effects produced by adult theaters in general, and the Guild offers
no rebuttal. The stated purpose of the City’s zoning regulations is “to create orderly,
harmonious, and economically sound development in order to promote the health,
safety, convenience, and general welfare of the citizens of the city.” Albuquerque,
N.M., Rev. Ordinances § 14-16-1-3(A). The City asserts, without challenge by the
Guild, that the drafters of the Ordinance relied on “numerous studies and other
evidence” concerning the adverse secondary effects emanating from adult amusement
establishments. Because the Guild does not rebut that assertion, we defer to the City’s
presumptively reasonable determination in the name of public health, safety and
welfare.
The municipality’s evidence must fairly support the municipality’s
rationale for its [adult amusement] ordinance. 	If plaintiffs fail to cast
direct 	doubt 	on 	this 	rationale, 	either 	by 	demonstrating 	that 	the
municipality’s evidence does not support its rationale or by furnishing
evidence 	that 	disputes 	the 	municipality’s 	factual 	findings, 	the
municipality meets its burden.
6A Eugene McQuillin, The Law of Municipal Corporations § 24:128, at 472 (3d ed.
2007) (footnote omitted).

27
{37} 	It is well-established New Mexico law that “[t]o be within the authorized
purposes the zoning ordinance must bear some reasonable relationship to the general
welfare.” City of Santa Fe v. Gamble-Skogmo, Inc., 73 N.M. 410, 413, 389 P.2d 13,
15 (1964). In the case before us, no evidentiary hearing was conducted to flesh out
the details of the City’s reasons for legislating against the negative secondary effects
of adult entertainment. 	Specifically, we have no way of divining whether the
“numerous studies and other evidence” relied on by the City in any way address the
negative secondary effects of the screening of adult films on a rare or occasional basis.
{38} 	When similar regulations fail, a municipality tramples on protected speech and
ignores ample alternative means of combating secondary effects. In a recent case,
Ascherl v. City of Issaquah, No. C11-1298MJP, 2011 WL 4404145, at *2-3 (W.D.
Wash. 2011), a municipality sought to limit the distribution of leaflets to a “free[-
]speech zone” in order to “serve public safety concerns, minimize congestion, and
facilitate the orderly flow of pedestrian traffic” during an annual festival. The court
found the ordinance inadequately tailored and ruled in favor of a pamphleteer who
ventured outside the zone, because the court found “no evidence that leafleting by
itself causes congestion or prohibits the orderly flow of pedestrian traffic, let alone
creates a public safety concern.” Id. at *3. In contrast, the respondent was found to
have properly tailored its adult entertainment ordinance by showing its “great interest

28
in protecting and preserving the quality of its neighborhoods through effective
land-use planning” and its “sincere and sustained effort to enhance and improve the
quality of life in Seattle.” Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153,
1158-59 (Wash. 1978) (en banc). 	The Washington Supreme Court said of the
ordinance that is similar to the one before us and the Court in Young: “It demonstrates
a reasonable decision that the public welfare is best served by having this particular
type of speech take place only in certain areas of the community. The ordinance thus
remains neutral regarding the content of the films[.]” 	Northend Cinema, Inc., 585
P.2d at 1158. The court concluded that the ordinance was not “a disguised form of
censorship.” Id. at 1159.
{39} 	Absent evidence to the contrary, we take the City at its word that the Ordinance
was designed to promote its significant interest of combating the negative secondary
effects of adult entertainment. And we believe that the City, like Seattle in Northend
Cinema, Inc. and like numerous other towns in the wake of Young, took a reasonable
route in accomplishing its goal. 	To that end, we refuse to place ourselves in the
position of legislators acting on behalf of the health, safety, and welfare of the public.
See Ward, 491 U.S. at 800 (stating that the validity of time-place-manner regulations
“does not turn on a judge’s agreement with the responsible decisionmaker concerning
the most appropriate method for promoting significant government interests or the

29
degree to which those interests should be promoted” (internal quotation marks and
citation omitted)).
{40} 	As noted above, the Guild directs our attention from the enactment of the
Ordinance and focuses on its application. It attacks the City on the grounds that, in
this instance, the showing of one adult film produced no negative secondary effects.
Although the Guild does not rebut the City’s assertion that the Ordinance was enacted
to combat the negative secondary effects associated with the exhibition of adult films,
it asserts that the City failed to produce evidence of negative secondary effects
resulting from the Guild’s single showing of the adult film in this instance. 	The
Guild’s argument fails, because it is well-established that cities, in enforcing a time-
place-manner restriction, need not prove the existence of negative secondary effects
in each instance: 	“[T]hat fact is beside the point, for the validity of the regulation
depends on the relation it bears to the overall problem the government seeks to
correct, not on the extent to which it furthers the government’s interests in an
individual case.” 	Id. at 801; see Independence News, Inc., 568 F.3d at 156 (stating
that a city “does not have to show that a particular adult establishment generates
adverse secondary effects each time it seeks to enforce” such a zoning ordinance);
BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 607 (8th Cir. 2001) (“[A] city would
have the burden of showing precisely how many adult performances were capable of

30
producing an unacceptable level of antisocial activity before the city could regulate
those performances. 	We are satisfied that neither the [F]irst [A]mendment nor
Supreme Court precedent requires a city to do the impossible.”); City of Columbia v.
Pic-A-Flick Video, Inc., 531 S.E.2d 518, 521 (S.C. 2000) (“Municipalities do not have
to show negative secondary effects in order to enforce adult zoning provisions.”); BBI
Enters., Inc., 874 F. Supp. at 891 n.4 (stating that “once an ordinance is rendered
facially valid by legitimate legislative findings as to the general problem to be dealt
with, a specific operation does not necessarily escape the [o]rdinance’s provisions by
showing that those generically[]validating characteristics do not in fact apply to that
operation”).
{41} 	We conclude that the Ordinance serves a significant governmental interest and
is narrowly tailored to achieve that interest.
iii. 	Leaves Open Alternative Channels for Communication
{42} 	The Guild makes a brief argument and cites to only one out-of-state federal
district court case that is not on point for the proposition that the Ordinance does not
provide it with “practical alternative avenues for showing an occasional adult film.”
It may be true that the Guild’s regular customers prefer not to frequent an adult
cinema, and it may be inconvenient for the Guild to rent out such a cinema in another
part of town properly zoned for such an exhibition. 	But just recognizing such an

31
option acknowledges that at least one alternative exists for the Guild to present adult
films in Albuquerque, and it is not an entirely unreasonable one. 	Zoning laws
inevitably create hurdles for various behavior and forms of expression in certain parts
of town; there is no evidence to suggest that this one rises to the level of an
unconstitutional burden on the Guild’s free-speech rights. 	As the Washington
Supreme Court stated: “[A]lthough potential viewers would be able to see the films
only in those downtown areas, there is no evidence that this places any burden on the
adult movie market.” Northend Cinema, Inc., 585 P.2d at 1158. In the case before
us, the Guild has produced no evidence that it was left with no reasonable alternative
channels of communication. We thus conclude that the Ordinance is a constitutionally
valid regulation of the time, place, and manner of the exhibition of adult films as
applied to the facts of this case.
III. 	CONCLUSION
{43} 	We are aware of the problems of line-drawing that this case represents. The
Ordinance does not provide a threshold level of adult film screenings that would be
tolerated outside the permissible zones. The City voices a concern about the potential
cumulative effect of allowing even occasional showings of adult films in areas not
zoned for such behavior. Cf. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
521 (2009) (supporting a federal agency’s enforcement action against isolated uses of

32
profanity on television and stating that “[t]o predict that complete immunity for
fleeting expletives . . . will lead to a substantial increase in fleeting expletives seems
to us an exercise in logic”). 	We recognize that the Ordinance affects First
Amendment rights. We also recognize that the Guild’s position is that the Ordinance
regulating adult amusement establishments is overbroad and reaches some speech that
does not create the type of secondary effects it seeks to protect against. This case,
however, does not present us with that question, and the record before us does not
provide the proper basis on which to declare that the City may not prosecute
mainstream movie theaters that occasionally exhibit pornographic films.
{44} 	As discussed above, we generally defer to the zoning power of municipalities,
even though it is inevitable that the lines drawn pursuant to that power will result in
winners and losers. “[E]very line drawn by a legislature leaves some out that might
well have been included. That exercise of discretion, however, is a legislative, not a
judicial, function.” 	Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974) (footnote
omitted). We applaud the wisdom of Justice Oliver Wendell Holmes:
When a legal distinction is determined . . . a point has to be fixed
or a line has to be drawn . . . to mark where the change takes place.
Looked at by itself without regard to the necessity behind it the line or
point seems arbitrary. . . . But when it is seen that a line or point there
must be, and that there is no mathematical or logical way of fixing it
precisely, the decision of the [l]egislature must be accepted unless we
can say that it is very wide of any reasonable mark.

33
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J.,
dissenting).
{45} 	Based on the record before us, we cannot say here that the Ordinance missed
the mark in confining the exhibition of adult films to specified zones within the City
limits. 	The enforcement of the Ordinance—even against a mainstream theater
screening one adult film—was not unconstitutionally applied in this case. 	For the
foregoing reasons, we affirm the decision of the district court.
{46} 	IT IS SO ORDERED.
__________________________________
CELIA FOY CASTILLO, Chief Judge
I CONCUR:
__________________________________
MICHAEL E. VIGIL, Judge
JONATHAN B. SUTIN, Judge, dissenting

34
SUTIN, Judge (dissenting).
{47} 	I respectfully dissent.
{48} 	This case appears to be one constructed by both parties as a single-film-test case
of first impression—but ill-fitting in the universe of cases and myriad of constitutional
analyses relating to the validity of ordinances that regulate adult amusement
establishments. Here is how the district court insightfully and colorfully described the
fretful fate it faced.
On the surface, the scenario presented by the parties is starkly clear as
are the parties’ opposition positions. 	The law applicable is, however,
anything but clear. Indeed, the [c]ourt can analogize itself to a small fish
navigating through a largely unfathomable murky bayou at night during
a storm fully aware of the likelihood of hungry alligators (appellate
courts, critical attorneys and legal commentators) lurking nearby. . . .
Viewed against the backdrop of the veritable flood of published
adult use litigation cases, this appears to be a relatively carefully crafted
“test” case on both sides. It is a pity that the law in this area is not as
clear as the crafting of the case by the parties. 	As the City observes:
“This case presents the [c]ourt with some novel legal issues under New
Mexico law in a larger context wherein even the federal courts have been
far from uniform.”
{49} 	This case was factually unsatisfactorily developed. 	It comes to us with no
metropolitan court record and no factual record in the district court save a sparse and
inadequate stipulation by the parties to the facts. Nevertheless, I address the critical
points instead of simply calling for remand for further factual development. In my

35
view, the City’s outlier zoning ordinance (the Ordinance) cannot be enforced against
the Guild for two distinct reasons. First, the Guild cannot be considered an “adult
amusement establishment” and, second, the Ordinance as applied to the Guild cannot
withstand constitutional scrutiny.
The Guild Cannot Be Considered an Adult Amusement Establishment
{50} 	The principal question here is whether the Guild should even be considered an
adult amusement establishment. The answer is that it should not; and the Ordinance
should be construed to exclude the Guild’s single showing. 	The Guild is an
established, mainstream, independent, single-screen, neighborhood, art theater. Year-
round, with a single weekend exception, the Guild does not daily or weekly feature
or concentrate on sexually oriented conduct in the films it shows. 	It in no way
regularly and substantially shows adult films. Adult amusement establishments, on
the other hand, concentrate daily or weekly on sexually oriented adult material. These
establishments are theaters that show adult films regularly as a substantial part of their
regular business. This description is one from common understanding. As articulated
by the court in Schmitty’s City Nightmare, LLC, “[i]t would do violence to the
meaning of both ‘oriented’ and ‘establishment’ to conclude that a venue offering only
occasional adult entertainment could constitute an establishment ‘oriented’ to adult
entertainment. . . . One would not call a bar a ‘martini bar’ if it served martinis only

36
once a year, just as one would not call a club a ‘jazz club’ if 99% of its music was
rock and roll.” 391 F. Supp. 2d at 756-57. To characterize the Guild as an “adult
amusement establishment” for its single showing of an adult film defies a common
understanding of that phrase.
{51} 	In addition, characterization of the Guild as an adult amusement establishment
is not supported by case law. It is the adult amusement establishment that gave rise
to the use of the negative secondary effects rationale to hold restrictions content-
neutral. Two United States Supreme Court film-based cases set the First Amendment
precedent on the issue and for this case. The first case is Young, 427 U.S. 50. Young
gave origin to First Amendment analyses in regard to zoning of adult theaters. See id.
at 56 n.12, 70-71 (stating that “[e]ven though the First Amendment protects
communication in [the area of adult films] from total suppression, . . . the State may
legitimately use the content of these materials as the basis for placing them in a
different classification from other motion pictures” and explaining that the question
then remains whether the at-issue ordinances may be justified by the city’s stated
“compelling” interest). In Young, the two theaters involved “propose[d] to offer adult
fare on a regular basis.” 	Id. at 59. 	The Court determined that municipalities may
control the location of such theaters “either by confining them to certain specified
commercial zones or by requiring that they be dispersed throughout the city.” Id. at

37
62. The Court stated that “apart from the fact that the . . . classification is predicated
on the content of material shown in the respective theaters, the regulation of the place
where such films may be exhibited does not offend the First Amendment.” Id. at 63.
The Court held that what was “ultimately at stake [was] nothing more than a limitation
on the place where adult films may be exhibited, even though the determination of
whether a particular film fits that characterization turns on the nature of its content,
. . . the city’s interest in the present and future character of its neighborhoods
adequately supports its classification of motion pictures.” 	Id. at 71-72 (footnote
omitted).
{52} 	In the second case, Renton, 475 U.S. 41, two theater owners intended to
“exhibit feature-length adult films” and therefore challenged an ordinance prohibiting
“any ‘adult motion picture theater’” from certain locations. Id. at 44-45. Construing
Young, the Renton Court noted that because the ordinance did not ban adult theaters
altogether, the ordinance was “therefore properly analyzed as a form of time, place,
and manner regulation.” 	Id. at 46. The Court noted, too, that “so-called ‘content-
neutral’ time, place, and manner regulations are acceptable so long as they are
designed to serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication.” 	Id. at 47. 	The Court recognized that the
ordinance treated theaters that “specialize[d] in adult films differently from other

38
kinds of theaters” and that the city’s “‘predominate concerns’ were with the secondary
effects of adult theaters” on the surrounding community. Id. The Court concluded,
therefore, that the ordinance was “aimed not at the content of the films shown at ‘adult
motion picture theaters,’ but rather at the secondary effects of such theaters on the
surrounding community” and that this was “completely consistent” with its definition
of content-neutral regulations. 	Id. at 47-48. 	The Court also determined that the
ordinance was “narrowly tailored to affect only that category of theaters shown to
produce the unwanted secondary effects[.]” 	Id. at 52 (emphasis added) (internal
quotation marks and citation omitted).
{53} 	The City enacted the Ordinance under the umbrella of the Young and Renton
rulings. This is indicated both by the City’s contention that its goal in enacting the
Ordinance was to combat the negative secondary effects produced by adult theaters
and that it relied on “numerous studies and other evidence” concerning the adverse
secondary effects emanating from adult amusement establishments. Yet, by including
the Guild in its definition of “adult amusement establishments,” the City sweeps into
its zoning regulation a business that falls outside of the content-neutral scope and
rationale of 	Young 	and 	Renton. 	As delineated in 	Young 	and 	Renton, adult
establishments (1) regularly show or “specialize” in the showing of adult films, and
(2) they are associated with pernicious or negative secondary effects on the

39
surrounding community or neighborhood. Young, 427 U.S. at 55, 59, 72; Renton, 475
U.S. at 47.
{54} 	Here, the parties stipulated that “[n]either ‘Pornotopia’ generally nor the
specific showing of ‘Couch Surfers, Trans Men in Action’ caused any negative
secondary 	effects 	to 	businesses 	on 	the 	same 	street 	as 	the 	Guild 	or 	to 	the
neighborhood[.]” Moreover, in its oral argument to this Court, the City conceded that
there were no negative secondary effects anticipated from the single showing of an
adult film. And, further, the parties stipulated that “[o]ther than one weekend a year
when the erotic film festival takes place at the Guild, the Guild shows movies of the
art-house variety, i.e, a variety of both independent fictional and documentary films
that do not contain an emphasis on specified anatomical areas or specified sexual
activities.”
{55} 	Because the Guild operates year-round as an “art-house” theater, and because
there were no actual or anticipated secondary effects from its single showing of an
adult 	film, 	the 	Guild 	is 	not 	properly 	characterized 	as 	an 	adult 	amusement
establishment as contemplated by the Court in Young and in Renton. In Young and
Renton, the ordinances could escape strict scrutiny as content-based precisely and
solely because the restrictions were narrowly tailored to cover only the type of
establishment shown by studies to cause or likely to cause negative secondary effects.

40
It was that type of establishment that was characterized as an “adult establishment”
subject to zoning restriction.
{56} 	Under these circumstances, the reasoning in Tollis, Inc. v. San Bernardino
County, 827 F.2d 1329 (9th Cir. 1987), and that in Lucero, 774 P.2d 769, is applicable
and persuasive. In Tollis, the court stated:
the [c]ounty has presented no evidence that a single showing of an adult
movie would have any harmful secondary effects on the community.
The [c]ounty has thus failed to show that the ordinance, as interpreted by
the [c]ounty to include any theater that shows an adult movie a single
time, is sufficiently narrowly tailored to affect only that category of
[theaters] shown to produce the unwanted secondary effects. Nor do we
see how the [c]ounty could make such a showing, since it is difficult to
imagine that only a single showing ever, or only one in a year, would
have any meaningful secondary effects.
Tollis, Inc., 827 F.2d at 1333 (internal quotation marks and citation omitted); see also
BZAPS, Inc., 268 F.3d at 609 (Bye, J., concurring in part and dissenting in part) (“An
ordinance that allows the city to regulate the content of a single performance, without
presenting evidence that a single performance causes adverse secondary effects, is not
narrowly tailored.”).
{57} 	Likewise, when presented with the question of “the appropriate constitutional
standard by which to define the ‘use’ necessary to make a movie theater an ‘adult
motion picture theater[,]’” the California Supreme Court determined that “a ‘single
use’ standard [was] insufficiently tailored to serve [the city’s] stated purpose of

1 I note Justice Mosk’s separate opinion in which he agrees with the
constitutional impropriety of the standard employed by the city but points to the
danger of 	the 	majority 	setting 	the 	standard 	instead 	of 	“allowing cities to
experiment with various solutions to the serious problems created by urban blight[,]”
citing Renton and Young, when “[t]o do so the majority must reach out to decide this
issue without the benefit of a developed record” among other considerations. Lucero,
774 P.2d at 779 (Mosk, J., concurring and dissenting).
41
preventing the clustering or concentration of adult motion picture theaters in any one
area.” Lucero, 774 P.2d at 770, 775. The court explained that “[n]othing in the [city]
ordinance’s statement of purpose disclose[d] the presence of significant deleterious
effects on the community arising out of a single showing of an adult film.” Id. at 775.
And, further, relying on Tollis, Inc., the court stated that “a single showing of an adult
movie does not necessarily create the logical relationship between the evil feared and
the method selected to combat it.” 	Lucero, 774 P.2d at 775-76 (internal quotation
marks and citation omitted). 	The Lucero court chose to interpret the ordinance as
applying only to those adult entertainment theaters “offering adult fare as a substantial
part of their regular business, but . . . not [to] apply to theaters showing only
occasional or incidental adult movies.” Id. at 777. 1
{58} 	Here, as in Tollis and Lucero, there exists no persuasive support for the
application of the Ordinance to the Guild for its “single showing” of an adult film.
There were no secondary effects, nor is there any evidence of a likelihood of negative
secondary effects if the Guild is permitted to show an adult film during its one-

2 I understand that the weekend festival may show more than one film that the
City might see as objectionable. But that is not the circumstance the parties brought
to this Court. They chose the limited, single-film circumstance. The circumstance of
showing more than one objectionable film must, unfortunately, be litigated in another
case unless, of course, the Majority Opinion stands.
42
weekend-a-year festival.2
{59} 	The rationales of Tollis and Lucero bring reason to bear on the application of
the Ordinance. 	The Ordinance should be narrowly construed so as to exclude the
Guild, based on a single showing of an objectionable film, from the definition of an
“adult amusement establishment.” 	To narrowly construe the Ordinance in that
manner, as applied to the Guild, would be to give the Ordinance constitutionally
sound construction. 	Cf. Northend Cinema, Inc., 585 P.2d at 1157-58 (rejecting a
vagueness challenge that was in part based on an ordinance’s failure to clarify “how
frequently [adult] films must be shown before a building is ‘used’ for the purpose” of
showing adult films, because “any language in the ordinance which is uncertain is
readily 	subject 	to 	a 	narrowing 	and 	constitutionally 	sound 	construction”);
Entertainment Prods. Inc. v. Shelby Cnty., Tenn., 588 F.3d 372, 386, 388 n.14 (6th
Cir. 2009) (presuming that state courts would refrain from “expansive construction”
of adult entertainment if such construction would affect “mainstream artistic
performances” or mainstream establishments for the “presentation of a single
performance” and noting that “[c]ases of overzealous enforcement against mainstream

43
artistic venues . . . would and should invite litigation by the affected parties on an as-
applied basis”). Moreover, by narrowly construing the Ordinance so as to exclude the
Guild “from occasionally exhibiting an ‘adult’ film, we . . . [are able to] constru[e] the
[O]rdinance in a constitutional manner while allowing a reasonable and practical
construction in conformity with the purpose of the enactment.” Lucero, 774 P.2d at
776-77; see also Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 455
(1989) (stating that the Supreme Court consistently interprets statutes “to avoid
deciding difficult constitutional questions where the text fairly admits of a less
problematic construction”); Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340, 805
P.2d 603, 607 (1991) (“It is . . . a well-established principle of statutory construction
that statutes should be construed, if possible, to avoid constitutional questions.”).
Were It Necessary to Reach the Constitutional Question, As Applied
to the Guild, the Ordinance Cannot Withstand Constitutional Scrutiny
{60} 	But for Young and Renton having created the legal fiction that zoning
ordinances of the sort at issue here are content-neutral in their regulation of adult
establishments, such ordinances would be presumptively unconstitutional and subject
to strict scrutiny because they are, in essence, content-based. See Renton, 475 U.S.
at 62 (Brennan, J., dissenting) (recognizing that the city’s ordinance was content-
based); see also Alameda Books, Inc., 535 U.S. at 434 (stating that content-based
regulations are presumptively invalid and are subject to strict scrutiny); Id. at 448

44
(Kennedy, J., concurring in judgment) (recognizing the inherent “fiction” in
classifying adult-establishment zoning ordinances as “content-neutral”). 	That is,
adult-establishment zoning ordinances are considered “content-neutral” if they are
predominately concerned with combating negative secondary effects. Owing to their
“content-neutral” 	status, 	Young- 	and 	Renton-type 	ordinances 	covering 	adult
establishments are subject to a lesser scrutiny and are constitutionally valid provided
that they are narrowly tailored to further the substantial governmental interest of
regulating the pernicious secondary effects associated with adult establishments.
Alameda Books, Inc., 535 U.S. at 456 (Souter, J., dissenting).
{61} 	Here, as I have already noted, there were no negative secondary effects, nor
were any anticipated from the Guild’s single showing of an adult film. The City has
failed to carry its evidentiary burden and there exists no evidence in the record of any
likelihood of negative secondary effects in the Guild’s neighborhood or elsewhere in
the City if the Guild’s singular activity were allowed. Additionally, the City provided
no evidence showing why the Ordinance, as applied, furthered a substantial
governmental interest. See Renton, 475 U.S. at 47. The City has not shown that the
Ordinance affects “only that category of theaters shown to produce the unwanted
secondary effects[.]” Id. at 52. Thus, the City has not shown, and cannot show, that
the Ordinance, as applied to the Guild’s single showing, is narrowly tailored to serve

45
a substantial governmental interest in restricting the single showing to a zoning
quarantined location. Therefore, the Ordinance, as applied to the Guild, did not, and
cannot, pass Renton’s lesser scrutiny. As a result, the Ordinance must be considered
content-based. Content-based ordinances are subject to strict scrutiny. 	Alameda
Books, Inc., 535 U.S. at 434.
{62} 	Of course, if the Ordinance, as applied to the Guild’s single showing, cannot
pass the Renton lesser scrutiny, the Ordinance clearly cannot pass constitutional
muster under a strict scrutiny analysis. 	The City simply cannot show that the
Ordinance, as applied to the Guild’s single showing, is narrowly tailored to serve a
compelling governmental interest in restricting the single showing to a zoning
quarantined location. 	See ACLU of N.M., 2006-NMCA-078, ¶ 19 (stating the
government’s burden under a strict scrutiny analysis).
{63} 	With regard to the lesser Renton scrutiny and to strict scrutiny, the City cannot
reasonably contend that the Ordinance cannot be more narrowly tailored. The City
knows how to narrowly tailor an ordinance. It has done so with respect to commercial
establishments that provide pornographic material. After defining the whole gamut
of “adult material” in Section 14-16-1-5(B) of the Ordinance, the Ordinance defines
an “adult store” as “[a]n establishment having 25% or more of its shelf space or square
footage devoted to the display, rental, sale[,] or viewing of adult material for any form

46
of consideration.” Albuquerque, N.M., Rev. Ordinances § 14-16-1-5(B). 	The
Ordinance’s silence as to stores having 24% or less of its shelf space or square footage
devoted to adult material demonstrates that the Ordinance is narrowly tailored to allow
stores to provide adult material as long as certain shelf space or square footage
restrictions are met. 	The narrow tailoring obviously applies, for example, to
mainstream bookstores. On the other hand, the Ordinance’s application to the Guild,
a mainstream, single-screen art theater, lacks any narrow tailoring whatsoever.
Accordingly, while the definition of “adult store” reflects the City’s conclusion that
an establishment that offers adult material for public consumption may do so without
the likelihood of harmful secondary effects associated with adult amusement
establishments so long as the adult material comprises less than one-fourth of the
business’s offerings, the City has made no attempt to apply that reasoning to adult
amusement establishments.
{64} 	When questioned about this tailoring at oral argument, the City offered no
plausible explanation as to why similar narrow tailoring could not be accomplished
with respect to theaters such as the Guild. Counsel for the City posited that “there is
a difference between buying . . . an erotic book and walking out of the store with it,
and watching an erotic conduct with a group of people.” Counsel provided no further
explanation. 	The explanation did not touch on the question of negative secondary

47
effects and there was no evidence to support the City’s assertion. All that the City
could muster further was that “[t]here just is” such a difference and that the
“percentage” approach cannot be taken with respect to movies. Given that the City
has conceded that “it’s not the art-house theater’s showing the single instance that the
City is concerned about” and given that the City has produced no evidence of any
likely negative secondary effects occurring in the future if the Guild is allowed its
single showing on this occasion, I am unable to see how the City can narrowly tailor
the Ordinance to allow certain adult stores to regularly and to some substantial degree
provide adult material, yet find no way to do the same with regard to activity such as
that of the Guild at issue here.
Unproven Future Concerns
{65} 	Although the Guild cannot be considered an adult amusement establishment and
the Ordinance cannot withstand constitutional scrutiny, I recognize there is some
difficultly as a result of the parties’ mal-construction of this case. By presenting a
case of a single showing of one film, and nothing more, the parties have offered no
particular limit on the showing of other adult films including the number of showings
during any particular period of time. This opens up possibly legitimate governmental
concerns about having to deal with expanded showings by the Guild and with the
possibility of other, similar theaters popping up in the same or new neighborhoods

48
showing one or more adult films. It leaves the City with the difficult task of writing
a narrowly tailored ordinance that will survive constitutional scrutiny. At what point
will an establishment come within the Young and Renton concept of an adult
amusement establishment the existence of which, as the law seems now to stand, is
presumed likely to create negative secondary effects?
{66} 	The closest the City comes to meeting these concerns is the City’s statement in
oral argument that “it’s not the art-house theater’s showing the single instance that the
City is concerned about, it’s the dynamic and broad issue that if they can do it, others
can do it.” In oral argument, the City stated its concern to be that conduct which in
its “aggregate . . . produce[s] negative secondary effects,” and the City also indicated
a “pragmatic” concern as to the difficulty in convicting beyond a reasonable doubt
under a “regular and substantial course of conduct standard.” 	In the district court
proceedings, the court characterized the City as arguing that “the constitutional
standards under which [the City’s zoning ordinances] were passed and enforced,
recognize a dynamic and broad view of land use conduct.” Therefore, the City argued
in the district court that there existed “no constitutional requirement that the City show
a discrete secondary harmful effect from a single event.” Yet, the City presented no
evidence relating to any of these concerns. And the City has supplied no authority for
or content to its general and formless theory that because zoning ordinances are

49
“dynamic and broad” the Ordinance is justified.
{67} 	By its vague “broad and dynamic” argument, the City appears to be saying that
its zoning needs to be broad enough to reach and cover each and every future
circumstance involving not only a single showing but incremental increases in
showings of adult-content films. While I can appreciate the City’s concerns, in the
context of First Amendment rights and the lack of evidence in this case, the City’s
“broad and dynamic” theory is much too nebulous to carry the weight it must have to
give the Ordinance a narrowly tailored status. It is noteworthy that the district court
did not rely on this theory in its extensive decision, nor does the Majority Opinion
affirm the district court on this theory.
{68} 	In the balance of things, at one end of the pornographic film business spectrum,
we have regular and substantial activity of an acknowledged sexual-oriented adult
amusement establishment in the Young and Renton sense. At the other end, is a single
showing by an acknowledged mainstream, independent, single-screen, neighborhood
art theater. 	The First Amendment and Article II, Section 17 of the New Mexico
Constitution do not permit the bright-line, all-inclusive zoning test and criminal
ordinance coverage held valid by the Majority Opinion—held valid based on the
illogic of presumed negative secondary effects attributable to the Young and Renton

3 The district court commented that although, in an as-applied context, the court
“does not believe that a single showing standard is per se constitutionally invalid, it
is in an anomalous place along the continuum of single use to full blown adult
establishment in the miasmic collection of adult use law.”
50
version of adult amusement establishments.3 Instead, the City must specifically prove
a reasonable and rational correlation between allowing the Guild’s activity and
likelihood that negative secondary effects in the neighborhood or elsewhere in the
City will result. Short of that proof, for the Ordinance to survive it must be narrowly
tailored so that it does not subject the Guild to criminal liability. 	The First
Amendment and Article II, Section 17 of the New Mexico Constitution plainly
override the broad land-use zoning theory advanced by the City.
CONCLUSION
{69} 	The Ordinance and the Majority’s view that it is constitutional as applied to the
Guild, are based on a false premise that all theaters that feature a film having an
emphasis on depiction of adult material can reasonably and unquestionably be
considered adult amusement establishments and therefore subject to criminal
prosecution. There exist two independent reasons for holding that the City cannot,
pursuant to the Ordinance, criminally sanction the Guild. First, the Guild is not an
adult amusement establishment in the common usage and understanding of the phrase
and as contemplated by Young and Renton. 	And the Ordinance can and should,

51
therefore, be narrowly construed to exclude the Guild’s showing of a single film from
its definition of an adult entertainment establishment.
{70} 	Second, if the Ordinance is nevertheless construed to apply to the Guild, it fails
any applicable constitutional scrutiny. The Ordinance must be, but is not, narrowly
tailored to further a compelling or substantial governmental interest, as applied to the
Guild. No compelling or substantial governmental interest has been shown to exist
for application of the Ordinance to the Guild. 	The Ordinance is, therefore,
unconstitutional as applied to the Guild. The City is not precluded from engaging in
the experimentation it is permitted under Young. See Young, 427 U.S. at 71 (stating
that “the city must be allowed a reasonable opportunity to experiment with [zoning]
solutions to admittedly serious problems”). 	Indeed, the City may well need to
experiment further in order to find the narrow tailoring that constitutionally fits.
__________________________________
JONATHAN B. SUTIN, Judge