722 F.2d 1274 - Janicki v. Pizza — 722 F.2d 1274

¶2Norman G. Zemmelman (argued), Britz & Zemmelman, Toledo, Ohio, for plaintiffs-appellants, cross-appellees.

¶3Robert G. Young, Assistant Law Director (argued), Toledo, Ohio, for defendants-ap-pellees, cross-appellants.

¶4William J. Brown, Atty. Gen., of Ohio, Columbus, Ohio, intervenor for appellee State of Ohio.

¶5Before LIVELY, Chief Judge, WELL-FORD, Circuit Judge, and RUBIN, District Judge.*

¶7PER CURIAM.

¶8Edward A. Janicki and Edward W. Zol-taszek, sales clerks at separate “adult” bookstores in Toledo, Ohio, brought this action under 42 U.S.C. §§ 1983 and 1985 to obtain declaratory and injunctive relief. Plaintiffs challenged the constitutionality of the Ohio obscenity statutes, Ohio Rev. Code §§ 2907.01(F) and 2907.32, and the constitutionality of the Toledo obscenity ordinances, Toledo, Ohio Mun.Code §§ 17-9-101(F) and 17-9-111. On cross motions for summary judgment, the district court upheld the Ohio statutes but struck down the Toledo ordinances for vagueness and over-*1275breadth. Plaintiffs appeal the ruling on the state statutes and defendants cross-appeal as to the municipal ordinances.

¶9While the present appeal was pending, this Court upheld the constitutionality of the Ohio statutes in Sovereign News Co. v. Falke, 674 F.2d 484 (6th Cir.), cert. denied, - U.S. -, 103 S.Ct. 142, 74 L.Ed.2d 146 (1982). See also, Turoso v. Cleveland Municipal Court, 674 F.2d 486 (6th Cir.), cert. denied, - U.S. -, 103 S.Ct. 177, 74 L.Ed.2d 145 (1982). All parties agree that the Falke decision is dispositive of the instant challenge to the Ohio statutes. We therefore AFFIRM the district court decision that the statutes are constitutional.

¶10The sole remaining issue1 is whether the district court erred by holding the Toledo municipal ordinances to be unconstitutionally vague and overbroad. Subsection (1) of the ordinance defines obscenity as follows:

“F. (1) As used in Sections 17-9-101 to 17-9-118 of the General Offense Code, any material or performance is ‘obscene’ if all of the following apply:

a. The average person applying contemporary community standards, would find that it appeals to the prurient interest when considered as a whole; and

b. It depicts, describes, or represents in a patently offensive manner, sexual behavior as defined in Section 17-9-101(F)(2); and

c. It lacks serious literary, artistic, political, or scientific value when considered as a whole.”

¶11As noted by the district court, subsection 1 specifically incorporates the Supreme Court’s tripartite standard for permissible regulation of obscenity as declared in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

¶12Subsection (2) of the ordinance completes the requirements of Miller by specifically defining “sexual behavior” as follows:

“F. (2) Sexual behavior means the patently offensive representation, depiction or description of any of the following:

a. Ultimate sexual acts, normal or perverted, actual or simulated, including without limitation, vaginal intercourse between a male and a female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex.

b. Masturbation, excretory functions, and lewd exhibition of the genitals.

c. The actual or simulated infliction of pain by one individual upon another, or by an individual upon himself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast.

d. Ultimate sexual acts, actual or simulated, between a human being and an animal.”

¶13The definitions in subsection (2) are actually expanded versions of examples provided by the Supreme Court in Miller, supra.2

¶14 *1276The district court, however, concluded that the phrase “including without limitation” before the list of ultimate sexual acts in subsection (2)a rendered the ordinance vague and overbroad. We disagree and REVERSE.

¶15It is true that there may be other prohibited sexual acts which are not specified in the ordinance, but this possibility does not result in vagueness or overbreadth. If it did, the sample definition in Miller — which refers only to “ultimate sexual acts, normal or perverted, actual or simulated” — would itself be unconstitutionally vague and over-broad. The nonexhaustive list of prohibited acts in the Toledo ordinance does not broaden the Miller definition; the effect, rather, is to more specifically indicate the types of conduct that fall within the category of “ultimate sexual acts.”

¶16Additional support for our conclusion is found in the Supreme Court’s disposition of a similar argument in Ward v. Illinois, 431 U.S. 767, 97 S.Ct. 2085, 52 L.Ed.2d 738 (1977). The issue there was whether the Illinois obscenity statute satisfied the specificity requirements of Miller. The Illinois Supreme Court had construed the statute to incorporate or exceed the tripartite standard of Miller. Neither the statute nor the state court decision, however, gave any list or description of the kinds of sexual conduct within the scope of the statute. The Supreme Court chose not to require an exhaustive list.

“It might be argued that, whether or not the Illinois Court adopted the Miller examples as part of its law, Sec. 11-20 nevertheless remains overbroad because the State has not provided an exhaustive list of the sexual conduct the patently offensive description of which may be held obscene under the statute. We agree with the Illinois Supreme Court, however, that ‘in order that a statute be held overbroad, the overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” (Broadrick v. Oklahoma, 413 U.S. 601, 615 [93 S.Ct. 2908, 2917, 37 L.Ed.2d 830] ...). People v. Ridens, supra, [59 Ill.2d 362] at 372, 321 N.E.2d [264] at 269. Since it is plain enough from its prior cases and from its response to Miller that the Illinois court recognizes the limitations on the kinds of sexual conduct which may not be represented or depicted under the obscenity laws, we cannot hold the Illinois statute to be unconstitutional.”

¶17Id. at 776, 97 S.Ct. at 2091 (emphasis in original).

¶18We certainly find no greater risk of over-broad enforcement under the Toledo ordinance. The wording of the ordinance reflects the City Council’s intent as to what kinds of sexual conduct cannot be depicted. Furthermore, in cases involving the more questionable Ohio obscenity statute, this Court has acknowledged the intention of the state appellate courts to incorporate the constitutional limitations of Miller,3 Sovereign News Co. v. Falke, supra; Turoso v. Cleveland Municipal Court, supra.We find that the district court erred by striking down the Toledo ordinances for vagueness and overbreadth.

¶19Accordingly, the judgment of the district court is AFFIRMED as to the Ohio obscenity statutes and REVERSED as to the Toledo ordinances.

¶20. We find no merit in defendants’ preliminary contention that plaintiff Zoltaszek is without standing to challenge the Toledo ordinance. Zoltaszek was a retail sales clerk at an “adult” bookstore in Toledo. In May of 1978, the Toledo police made a series of arrests of sales clerks at similar bookstores throughout Toledo, charging several of the clerks with violation of an earlier version of § 17-9-111. One of these clerks was a co-worker of Zoltaszek. It is not disputed that Zoltaszek himself would have been arrested had he been working at the time. After § 17-9-111 was amended to its present form, Toledo police made a series of arrests involving owners or operators of adult movie theaters charging violation of the ordinance. Zoltaszek’s job duties include the sale of sexually oriented films as well as books and magazines. Being similarly situated to others who have been arrested under the challenged ordinance, Zoltaszek clearly has standing. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). He has alleged and shown a “threatened or actual injury from the putatively illegal action....” Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).