Opinion · Court of Appeals for the Sixth Circuit

Record Revolution No. 6, Inc. v. City of Parma, Ohio, Alexander J. Luka, D/B/A Daystar Boutique v. City of Lakewood, Ohio

709 F.2d 534

Type
Opinion
Court
Court of Appeals for the Sixth Circuit
Jurisdiction
Federal
Date
1983-06-10
Topic
general

ORDER On April 22, 1983, the appellees filed a motion requesting this Court to dissolve the stay pending the resolution of the appeal in this case. That stay has been in effect since May 2, 1980. 1 In the interim, this Court has rendered two decisions declaring the subject ordinances unconstitutional. Both of those rulings have been vacated by the United States Supreme Court and the case remanded to this Court for further review. Most recently, on May 17, 1982, 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840, the Supreme Court directed that this cause be given “further consideration in light of Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).” The parties have submitted supplemental briefs on the applicability of Hoffman Estates to the Parma and Lakewood ordinances.

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Cited by
21 opinions
RECORD REVOLUTION NO. 6 v. CITY OF PARMA, OHIO,709 F.2d 534(6th Cir. 1983)
RECORD REVOLUTION NO. 6, INC., PLAINTIFF-APPELLANT, v. CITY OF PARMA, OHIO,
ET AL., DEFENDANTS-APPELLEES.
ALEXANDER J. LUKA, D/B/A DAYSTAR BOUTIQUE, PLAINTIFF-APPELLANT, v. CITY OF
LAKEWOOD, OHIO, ET AL., DEFENDANTS-APPELLEES.
Nos. 80-3308, 80-3352.
United States Court of Appeals, Sixth Circuit.
June 10, 1983.
Page 535
David C. Weiner and Eric H. Zagrans, Hahn, Loeser, Freedheim, Dean Wellman, Cleveland, Ohio, Michael L. Pritzker, Chicago, Ill., for plaintiff-appellant in No. 80-3308.

William E. Blackie, Director of Law City of Lakewood, Lakewood, Ohio, for amicus curiae City of Lakewood.

Gordon J. Beggs, American Civil Liberties Union of Cleveland Foundation, Inc., Cleveland, Ohio, for amicus curiae ACLU of Cleveland.

Anthony Glassman, Beverly Hills, Cal., for amicus curiae Glassman Browning, Inc., for appellant.

Andrew Boyko, Law Director, Stephen P. Bond, Parma, Ohio, for defendants-appellees in No. 80-3308.

Fred P. Schwartz, Armond D. Budisch, Cleveland, Ohio, for plaintiffs-appellants in both cases.
Appeal from the United States District Court for the Northern District of Ohio.
Before EDWARDS, Chief Judge, and MARTIN and JONES, Circuit Judges.
[1] ORDER
[2] On April 22, 1983, the appellees filed a motion requesting this Court to dissolve the stay pending the resolution of the appeal in this case. That stay has been in effect since May 2, 1980.1In the interim, this Court has rendered two decisions declaring the subject ordinances unconstitutional. Both of those rulings have been vacated by the United States Supreme Court and the case remanded to this Court for further review. Most recently, on May 17, 1982,456 U.S. 968,102 S.Ct. 2227,72 L.Ed.2d 840, the Supreme Court directed that this cause be given "further consideration in light ofVillage of Hoffman Estates v.Flipside, Hoffman Estates, Inc.,455 U.S. 489,102 S.Ct. 1186,71 L.Ed.2d 362(1982)."

[3] The parties have submitted supplemental briefs on the applicability ofHoffman Estatesto the Parma and Lakewood ordinances. The appellants have argued fairly persuasively that the ordinances are distinguishable and that the Supreme Court pronouncement is, therefore, not controlling. The appellees have argued, on the other hand, that "This Court is bound to follow that reasoning now, despite attempts to distinguishHoffmanEstateson its facts, noPage 536matter how misguided the Court may think it to be." (Appellees' Second Supplemental Brief at p. 14.) We reluctantly agree with the latter contention.

[4] Since this Court issued its initial opinion in 1980, virtually every other challenge to the Model Act has proved unsuccessful.2The Supreme Court first reached the issue inHoffman Estatesand has since denied certiorari in at least two circuit court decisions upholding the Act.3Post-HoffmanEstatescases have almost uniformly concluded that, under the guidelines set out by the Supreme Court, a facial challenge to the constitutionality of ordinances patterned after the Model Act must fail.See, e.g., New England Accessories Trade Association,Inc. v. Nashua,679 F.2d 1(1st Cir. 1982);Levas and Levas v.Village of Antioch,684 F.2d 446(7th Cir. 1982);Kansas RetailTrade Cooperative v. Stephan,695 F.2d 1343(10th Cir. 1982). As much as this panel may prefer the reasoning and result we have twice employed and reached, respectively, the mandate of the Supreme Court is clear and we are compelled to abide by it.

[5] Accordingly, we have determined that not only is the cities' motion to dissolve the long-standing stay well taken,4but the ruling of the district court must finally be affirmed. We reach this conclusion recognizing that we are faced solely withpre-enforcement facial challengesto the constitutionality of the Parma and Lakewood ordinances.5In addition, we are mindful of the carefully-drawn limitations which the district court placed upon the operations of these statutes before determining that the end product was constitutional. These boundaries are not to be overstepped.

[6] The appellees' motion to dissolve the stay pending appeal is thus mooted by this Court's overriding decision that the order of the district court must be, and is hereby, AFFIRMED.Page 622
  1. The stay was initially instituted by order of a single Judge of this Court on May 2, 1980. Following oral arguments on the matter, the stay was extended by the full panel on May 14, 1980. ↩
  2. See, e.g., Tobacco Accessories Novelty Craftsmen v.Treen,681 F.2d 378(5th Cir. 1982);Casbah, Inc. v. Thone,651 F.2d 551(8th Cir. 1981),cert. denied,455 U.S. 1005,102 S.Ct. 1642,71 L.Ed.2d 874(1982);Hejira Corp. v. MacFarlane,660 F.2d 1356(10th Cir. 1981).But see Record Head Corp. v.Sachen,682 F.2d 672(7th Cir. 1982). ↩
  3. Casbah, Inc. v. Thone,651 F.2d 551(8th Cir. 1981),cert. denied,455 U.S. 1005,102 S.Ct. 1642,71 L.Ed.2d 874(1983);Florida Businessmen for Free Enterprise v. City ofHomestead,679 F.2d 252(11th Cir. 1982),cert. denied,___ U.S. ___,103 S.Ct. 763,74 L.Ed.2d 978(1983). ↩
  4. Obviously, given the ultimate result we reach today, the appellees' claim that the appellants no longer enjoy a continuing likelihood of success on the merits of this appeal is a persuasive one. ↩
  5. See Village of Hoffman Estates v. Flipside, HoffmanEstates, Inc.,455 U.S. at 503,102 S.Ct. at 1195. ↩