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BROWN v. PORNOGRAPHY COMMN. OF LOWER SOUTHAMPTON T

October 21, 1985

RAYMOND BROWN, d/b/a HOMETOWN PHARMACY, and VIDEO CONCESSIONS, INC.
v.
PORNOGRAPHY COMMISSION OF LOWER SOUTHAMPTON TOWNSHIP, BOARD OF SUPERVISORS OF LOWER SOUTHAMPTON TOWNSHIP, LOWER SOUTHAMPTON TOWNSHIP, CHARLES RAUDERBUSH, HENRY JACOBSON, WARREN HAZELTON, SUE McKEON, DANIEL FRALEY, DENNIS O'BRIEN, LEONARD HARDY, JOHN DIETTERLE, MAURICE NOVOSELLER, ELROY SIMONS, GEORGE WILLIAMS, MARY ELLEN FECCA AND PATRICK RAFFERTY, in their official capacities



The opinion of the court was delivered by: O'NEILL

 O'NEILL, J.

 Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and the First and Fourteenth Amendments of the Constitution. They challenge the validity of a number of anti-pornography ordinances adopted by Lower Southampton Township, Bucks County, Pennsylvania, and seek declaratory and injunctive relief and damages.

 The present application for a permanent injunction concerns only the two ordinances currently in effect in the Township, Ordinances Nos. 237 and 339. A hearing has been held, briefs filed and oral argument presented. This memorandum will serve as my findings of fact and conclusions of law.

  I.

 Plaintiff Raymond Brown resides in Philadelphia, Pennsylvania, and owns Hometown Pharmacy, a sole proprietorship located at 200 Bustleton Avenue, Feasterville, Lower Southampton Township, Bucks County, Pennsylvania. For over 20 years, Hometown has been selling prescription and nonprescription drugs, health care and beauty products, camera film, greeting cards, school supplies and numerous other items customarily sold by drug stores.

 Plaintiff Video Concessions is a Pennsylvania corporation engaged in the rental of videocassette films and recorder machines and the sale of blank videocassette tapes. In March, 1982, Video Concessions entered into an agreement to supply Hometown with a full range of videocassettes, videocassette recorder machines and blank tapes, and to provide Hometown with certain marketing assistance. Hometown agreed to provide the labor and floor space necessary to display, rent and/or sell these products. Pursuant to this agreement, Hometown set up a display of videocassettes and a separate check-out counter in one corner of its store. This display area and check-out counter comprises approximately 200 square feet of Hometown's 4,500 square feet of total floor space. Hometown received a commission from Video Concessions based upon Hometown's gross videocassette rental receipts.

 Defendant Lower Southampton Township is a second class township organized under the laws of the Commonwealth of Pennsylvania. Defendant Board of Supervisors is the duly constituted executive authority of the Township as provided for in 53 Pa. Stat. Ann. §§ 22101-25851. Defendant Pornography Commission was appointed by the Board of Supervisors on August 29, 1974, pursuant to the provisions of an anti-pornography ordinance, No. 235, for the purpose of implementing and enforcing certain of the provisions of another anti-pornography ordinance, No. 236. As a result of the repeal of Ordinances Nos. 235 and 236, the Pornography Commission was abolished on September 26, 1984.

 The amended complaint names thirteen individual defendants, all of whom are residents of the Township. Defendants Charles Raudenbush, Henry Jacobson, Daniel Fraley and Dennis O'Brien have been members of the Board of Supervisors from January 1978, 1980, 1982 and 1984, respectively, to the date of the hearing on this motion. Defendant Warren Hazelton was a member of the Board of Supervisors from mid-1981 through June 12, 1984. Defendants Leonard Hardy, Maurice Novoseller, Elroy Simons, George Williams and Patrick Rafferty were members of the Pornography Commission from January 1, 1982, through September 26, 1984. Defendant Mary Ellen Fecca was a member of the Pornography Commission from January, 1983, through September 26, 1984. Defendant Joseph Dietterle was a member of the Pornography Commission from January 1, 1982, through March 13, 1984.

 Beginning in March, 1982, Video Concessions supplied Hometown with general release films and with so-called "adult films" or X-rated videocassettes. *fn1" Throughout the period during which Hometown rented adult videocassettes to its customers, it maintained procedures intended to ensure that such films would be rented only to adults. *fn2" In accordance with its policy, neither Hometown nor Video Concessions at any time advertised, either on or off Hometown's premises, Hometown's adult film selections, with the exception of the display inside the pharmacy of two three-inch by five-inch index cards stating "adult catalog available upon request. Must be over twenty-one years of age." Although Hometown had a videocassette recorder on its premises for use in checking videocassettes for damage or malfunction, it prohibited the viewing of adult videocassettes on its premises and there is no evidence that any such viewing occurred or that any adult videocassette was leased to a minor.

 On or about June 4, 1982, Brown was served with an ordinance violation notice issued by the Township charging Hometown with violation of Ordinance 235. *fn3" Upon receipt of this notice, Hometown ceased all rentals of adult videocassettes and requested a hearing before the Pornography Commission to determine whether the films in question were pornographic as defined in the Ordinance.

 At this hearing, in June of 1982, William Share, Vice-President of Video Concessions, was informally advised by the Commission through defendant member Novoseller and another member that if Hometown withdrew its request for a hearing and determination and refrained from renting adult films during a two to three month "cooling-off" period, the Township would not object to Hometown's resumption of rentals of adult films. Hometown withdrew its request and, in September 1982, resumed rentals of adult videocassettes, which rentals continued uninterrupted until March 12, 1984. During early 1984, Hometown received substantial income from its adult videocassette rentals.

 On September 5, 1984, defendant LaRosa, Township Manager, and defendant Charles Raudenbush, Jr., Chairman of the Board of Supervisors, wrote letters *fn6" to Bucks County District Attorney Michael Kane reporting that the Board had received complaints from residents concerning Hometown's and Video Concession's sale and rental of X-rated videocassettes. *fn7" The letters requested the District Attorney to opine whether the sale and rental of these videocassettes constituted a violation of The State Obscenity Act, 18 Pa. Cons. Stat. Ann. § 5903. In a letter dated September 12, 1984, Mr. Kane replied ". . . that there is apparently no obvious violation of the [Pennsylvania] crimes code relating to the activity you describe." *fn8"

 Plaintiffs filed their complaint on the afternoon of September 26, 1984. That evening, the Supervisors adopted Ordinance No. 338 repealing Ordinances Nos. 235 and 236. Furthermore, notwithstanding Mr. Kane's letter, the Supervisors unanimously voted to request Bucks County Assistant District Attorney Rubenstein to file a criminal action against Hometown and directed Township Solicitor Daniel J. Lawler to write to Mr. Kane requesting that he take such action immediately. Following receipt of Mr. Lawler's letter dated October 11, 1984, Mr. Kane again informed defendants, by letter, that Hometown was not in violation of state law and that no prosecution would be instituted. On November 14, 1984, the Supervisors enacted another pornography Ordinance, No. 339, which amended the Township Zoning Code. This Ordinance forbids the commission of acts of the type proscribed by 18 Pa. Cons. Stat. Ann. § 5903 in commercial, controlled commercial, and planned business districts, but subject to some restrictions, *fn9" permits such acts in planned industrial districts.

 Plaintiffs seek a declaratory judgment invalidating Ordinances Nos. 237 and 339 as violative of the First and Fourteenth Amendments and an order permanently (i) enjoining defendants from enforcing Ordinances Nos. 237 and 339 to the extent that the Ordinances prohibit or interfere with Hometown's rental of adult videocassettes to adults at its present business location, and (ii) enjoining the Township, its supervisors and Pornography Commission, and all individual defendants acting in their official capacities from harassing plaintiffs or retaliating against them for their challenges to Ordinance Nos. 235, 236, 237 or 339 or for any other reason.

 II.

 We first consider the questions whether this matter is ripe for adjudication and whether the Court should abstain. *fn10"

 A.

 In determining whether plaintiffs have alleged a case or controversy within the meaning of Article III of the Constitution

 
"the basic inquiry is whether the 'conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.' Railway Mail Assn. v. Corsi, 326 U.S. 88, 93 [89 L. Ed. 2072, 65 S. Ct. 1483] (1945).
 
"A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. But 'one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.' Pennsylvania v. West Virginia, 262 U.S. 553, 593 [67 L. Ed. 1117, 43 S. Ct. 658] (1923).
 
"When contesting the constitutionality of a criminal statute, 'it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights, Steffel v. Thompson, 415 U.S. 452, 459 [39 L. Ed. 2d 505, 94 S. Ct. 1209] (1974); When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.' Doe v. Bolton, 410 U.S. 179, 188 [35 L. Ed. 2d 201, 93 S. Ct. 739] (1973). But 'persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.' Younger v. Harris, 401 U.S. 37, 42 [27 L. Ed. 2d 669, 91 S. Ct. 746] (1971); When plaintiffs 'do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,' they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra, at 42."

 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298-299, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) [some citations omitted].

 Defendants contend that this matter is not ripe for adjudication because (1) the Township's only official action was to serve Hometown with an ordinance violation notice pursuant to the now repealed Ordinance No. 236; *fn11" (2) the Township has not attempted to enforce Ordinances Nos. 237 and 339; and (3) even if the Township proceeds to enforce those ordinances against plaintiffs, they have a right of appeal to the zoning hearing board and thereafter to the Court of Common Pleas.

 However, the parties have stipulated that:

 Joint Stipulation as to Certain Facts and Exhibits, para. 21. Despite defendants' first and second contentions, their agreement that they would enforce Nos. 237 and 339 against Hometown if Hometown resumed rental of adult videocassettes creates a present and realistic danger that Hometown will be cited for violation of the Ordinances.

 Defendants' third argument, that the case is not ripe because plaintiffs have a right of appeal, is misplaced for two reasons. First, the right to a subsequent appeal does not affect the immediacy of the conflict between the parties. Second, plaintiffs need not exhaust administrative remedies prior to instituting a § 1983 action. Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982).

 B.

 
"Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or state agency will have the opportunity to decide the matters at issue. The doctrine was born out of a concern for the maintenance of our federal system; seeking to avoid unnecessary conflicts between the federal judiciary and state government. See Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 500-502, 61 S. Ct. 643, 645, 85 L. Ed. 971 (1941). However, the Supreme Court has recognized that abstention is an 'extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.'"

 Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743, 746 (3d Cir.), cert. denied, 456 U.S. 990, 73 L. Ed. 2d 1285, 102 S. Ct. 2270 (1982), quoting from County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959). The Court has recognized three situations in which abstention is permissible. See, generally, Colorado River Water ...


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