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03/29/83 CITY ST. LOUIS v. KEVIN KIELY

March 29, 1983

CITY OF ST. LOUIS, PLAINTIFF-RESPONDENT,
v.
KEVIN KIELY, DEFENDANT-APPELLANT.



From the Circuit Court of the City of St. Louis; Criminal Appeal from Conviction Under Municipal Ordinance; Judge Harold F. Fullwood.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Gaertner

Appellant Kevin Kiely was arrested on March 30, 1981, at his place of employment, an "Adult" bookstore at 2533 South Jefferson, which contains coin-operated movie machines. Appellant was charged with unlawfully operating an arcade within the City of St. Louis without first obtaining a license for the current year "in violation of Sections 725.010 and 725.030 of the Revised Code of the City of St. Louis as amended by Ordinance 56788, approved on June 28, 1974, and by Ordinance 57294, approved January 22, 1977."

These so-called "arcade" ordinances require that an arcade license be obtained by any business containing three or more coin-operated amusement devices. The ordinances expressly exclude cigarette, candy, beverage, food machines and juke boxes.

Appellant was arraigned in the Municipal Court of the City of St. Louis and pleaded not guilty to the charge. The cause was then certified to the Circuit Court of the City of St. Louis. Appellant filed a Motion to Dismiss the Information citing constitutional infirmities in the ordinances under which appellant was charged, particularly those defects of the ordinance pertaining to appellant's First Amendment rights.

The cause was then submitted upon Stipulation of Facts. The stipulation included copies of the arcade ordinances and the following additional information:

At the time of his arrest on March 30, 1981, appellant was employed in an "Adult" bookstore at 2533 South Jefferson in the City of St. Louis. The bookstore offers for sale at retail, books and magazines and, in addition, has sixteen coin-operated movie machines. The floor space open to the public was 720 square feet.

At the time and date of appellant's arrant, appellant was the "keeper" of the arcade under the definitions of the ordinances under which he was charged. Neither appellant nor the establishment in which he was arrested had an "arcade" license on the date of his arrest, nor has an application for said licenses ever been made.

The establishment at 2533 South Jefferson has a valid merchant's license, occupancy permit, and separate amusement licenses, as required, for each of the coin-operated machines, and said establishment has been continuously operating at the same address, utilizing the same number of square feet, with the same number of machines, and engaged in the same type and nature of business since 1973.

Respondent has stipulated that the purpose and intent of the above-cited ordinances was to control electronic game rooms in residential neighborhoods. The arcade ordinances in question indicate that they were deemed necessary for the "immediate preservation of the health, peace and safety. . . ."

Since the effective date of Ordinance 56788, June 28, 1974, only ten arcade licenses have been approved within the City of St. Louis. Since the effective date of Ordinance 57294 on January 22, 1977, which amended Ordinance 56788, there have been only two instances when establishments other than adult bookstores have been charged with violation of this ordinance as amended.

On March 24, 1982, the Court entered an order overruling defendant's Amended Motion to Dismiss the Information, found appellant guilty of the charge, and assessed appellant a fine of twenty-five dollars plus court costs. Appellant thereafter timely filed his notice of appeal with this court.

Appellant contends on appeal that the trial court erred in failing to sustain his motion to dismiss the information and in finding his guilty of violating the arcade ordinances because the ordinances are unconstitutional on their face and as applied to him. Appellant alleges the arcade Ordinances unconstitutionally abridge his First and Fourteenth Amendment rights in three ways: 1) the ordinances serve as prior restraints on protected communication which are not justified by compelling state interests; 2) the ordinances lack narrow precise standards to guide the licensor; and 3) the ordinances lack sufficient Fourteenth Amendment procedural safeguards regarding denials, revocations, and appeals for the licensing procedure.

It is stipulated that the purpose and intent of the ordinances is "to control what is known as electronic game rooms in residential neighborhoods." Coin-operated video games are pure entertainment with no informational element. As such, they contain so little in the way of particularized expression that video games "cannot be fairly characterized as a form of speech protected by the First Amendment." America's Best Family Showplace v. City of New York, 536 F.Supp. 170, 174 (E.D. N.Y. 1982). However, included within the purview of the ordinances are "any other type or kind of coin-operated amusement device," § 725.010, par. 3, Ordinance 56788, such as appellant's coin-operated movie machines. Movies are a form of expression and are included within the free speech and free press guarantees of the First and Fourteenth Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952); State v. All Star News Agcy., Inc., 580 S.W.2d 245, 247 (Mo. banc 1979). Since there is no principled reason to distinguish between those motion pictures which are exhibited to paying viewers in public auditoriums and those which are shown to paying viewers in machines which are available to the public, 414 Theatre Corp. v. Murphy, 360 F.Supp. 34, 36 (S.D. N.Y. 1973) aff'd 499 F.2d 1155 (2d Cir. 1974), appellant's activities are protected by the First Amendment.

Any government regulation that limits or conditions in advance the exercise of First Amendment activity constitutes a form of prior restraint, Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1958); Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1120 (1st Cir. 1981), and any such restraint bears a "heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963).

Appellant contends that the arcade ordinance acts as an unconstitutional prior restraint on his protected activity because it requires appellant to obtain an arcade license to operate his adult book store, the issuance of which is subject to the uncontrolled discretion of the Board of Public Service. Since it is stipulated that appellant never applied for a license, the question arises whether appellant has standing to raise his prior restraint claim.

STANDING

Appellant contends that he has a right to challenge the constitutional validity of the arcade ordinance even though he has never sought a license and been denied one. He relies on Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969), for the proposition that one subject to the restraints of an unconstitutional licensing ordinance is not precluded from attacking the ordinance even though he has not yielded to its demands. Appellant contends that the arcade ordinance provision which vests authority in the Board of Public Service to issue licenses provides no definable standard sufficient to ...


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