Agenda - Planning Commission - 01/09/2014

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Zoning Bulletin October 25, 2013 I Volume 7 I Issue 20 NEW MEXICO (09/12/13)—This case addressed the issue of whether an art -house theater that showed one adult film annually was an "adult amusement establishment" within the meaning of the city zoning ordinance that prohibited adult amusement establishments in the zone in which the theater operated. The Background/Facts: Pangaea Cinema, LLC (the "Guild") did business as the Guild Cinema in the Nob Hill area of Albuquerque (the "City"). The area in which the Guild operated was zoned C-2, or "Com- munity Commercial." The cinema was an art -house theater that usually showed nonpomographic independent films. However, on one Novem- ber weekend in 2008, the Guild hosted an erotic film festival called "Pornotopia." During the festival, the Guild featured at least one erotic or pornographic film. Under the City's zoning ordinance, "adult amusement establish- ments" were not permitted in the C-2 zone. The ordinance defined "adult amusement establishments" as: "[a]n establishment such as [a] . . . theater . . . that provides amusement or entertainment featuring . . . films, motion pictures . . . or other visual representations or recordings characterized or distinguished by an emphasis on . . . speci- fied anatomical areas or . . . specified sexual activities." Zoning enforcement inspectors characterized the pornographic film that was featured at the Guild as having an "emphasis on . . . specified anatomical areas or . . . specified sexual activities." Based on such a screening, the City determined that the Guild was operating as an adult amusement establishment in an area that was not zoned for adult entertainment. In December 2008, the State of New Mexico and the City of Albu- querque charged the Guild with a criminal zoning violation in metro- politan court. (For clarity, the prosecuting body is referred to as the "City.'.") The metropolitan court found the Guild guilty. The Guild appealed. The district court held that the Guild had committed a zoning violation and that the zoning ordinances were constitutional as they ap- plied to the Guild. The district court also imposed a criminal fine of $500. The court of appeals affirmed the Guild's conviction. The Guild appealed. On appeal, the Guild argued that its conviction violated its state and federal constitutional rights to free speech. DECISION: Judgment of court of appeals reversed and vacated. The Supreme Court of New Mexico held that the Guild did not com- mit a zoning violation because it was not an "adult amusement establishment" within the meaning of the ordinance, as the term "adult amusement establishment" did not include theaters that rarely or only occasionally featured adult entertainment. In so holding, the court explained that "[c]ities are generally allowed ©2013 Thomson Reuters 3