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Posted by / 26-Jul-2017 16:53

Reingold, Chattanooga, Tennessee, for the Appellants Cinema 1, Inc., and David Franklin. OPINIONDavid Franklin (“Franklin”) operates an adult bookstore in Chattanooga known as Cinema 1, Inc. Numerous undercover visits by Chattanooga Police Department officers discovered a significant amount of sexual activity happening at Cinema 1. Kinsley, Cincinnati, Ohio, John Herbison, Nashville, Tennessee, and Arvin H. Flowers, Chattanooga, Tennessee, for the Appellee City of Chattanooga.Sections 11-423 through 11-428 of Article XIV require all operators of adult oriented establishments to obtain a license and for all employees of these establishments to obtain permits.These sections also set forth the requirements that must be met in order to obtain the necessary license or permit.The portion of the Chattanooga City Code (“City Code”) regulating adult oriented establishments is Article XIV.The stated purpose of this Article is, among other things, to “promote and secure the general welfare, health, and safety of the citizens of the City of Chattanooga.” Article XIV was passed after findings were made by the City Council that sexual activity and prostitution were occurring at adult oriented establishments. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. Based on police reports detailing what the undercover officers observed at Cinema 1, the Mayor of Chattanooga revoked Franklin's adult oriented establishment license, a decision later affirmed by the Chattanooga City Council and then the Trial Court. This sexual activity violated the Chattanooga city ordinance regulating adult oriented establishments.

This section states, inter alia, that no operator, entertainer, or employee of an adult oriented establishment shall “permit to be performed, offer to perform, perform or allow customers, employees or entertainers to perform sexual intercourse or oral or anal copulation or other contact stimulation of the genitalia.” This section also prohibits employees, customers, etc., from exposing their genitals.

Section 11-424(c) provides: Within ten (10) days of receiving the results of the investigation conducted by the Chattanooga Police Department, the city treasurer shall notify the applicant that his application is granted, denied or held for further investigation.

Such additional investigation shall not exceed an additional thirty (30) days unless otherwise agreed to by the applicant.

The City Council shall hear evidence concerning the basis for denial of the application and shall affirm or reverse the denial of an application at the conclusion of said hearing; any such hearing shall be concluded no later than twenty-two (22) days after the applicant's receipt of notification of denial of an application, unless an extension beyond such time period is requested by the applicant and granted by the City Council.(c) If the City Council affirms the denial of an application, the Office of the City Attorney shall institute suit for declaratory judgment in a court of record in Hamilton County, Tennessee, within five (5) days of the date of any such denial seeking an immediate judicial determination of whether such application has been properly denied under the law.

In addition to challenging the constitutionality of the above procedures, Defendants also claim the procedure for revoking licenses and permits contained in the City Code is unconstitutional. W.2d 808 (Tenn.1978), for support that Tennessee courts will not deny a writ in this context. at 815 (finding that writs should issue where denial of the writ is “tantamount to the denial to either party of a day in court”).

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§ 11-425(b)(for licenses); § 11-428(b)(for permits). The next step in the procedure is found at § 11-424(c) for licenses and § 11-427(c) for permits.

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