Suburban Video, Inc. v. City of Delafield

• Decision Date: 29 August 1988
• Docket Number: Civ. A. No. 88-C-707.
• Citation: 694 F. Supp. 585
• Parties: SUBURBAN VIDEO, INC. d/b/a Superb Video Store, Plaintiff, v. CITY OF DELAFIELD, a Wisconsin municipal corporation, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

694 F. Supp. 585

SUBURBAN VIDEO, INC. d/b/a Superb Video Store, Plaintiff, v. CITY OF DELAFIELD, a Wisconsin municipal corporation, Defendant.

Civ. A. No. 88-C-707.

United States District Court, E.D. Wisconsin.

August 29, 1988.

Robert J. Lerner, Perry, Lerner & Quindel, S.C., Milwaukee, Wis., for plaintiff.

Joseph J. Ferris, Kasdorf, Lewis & Swietlik, S.C., Milwaukee, Wis., for defendant.

DECISION and ORDER

TERRENCE T. EVANS, District Judge.

Superb Video, which sells what have been described as "sexually explicit" books, magazines, and video cassettes, has filed this suit seeking declaratory and injunctive relief against the City of Delafield. The target of the suit is a Delafield ordinance regulating "adult-oriented establishments." Superb Video contends that the ordinance conflicts with the first, fifth, ninth and fourteenth amendments to the United States Constitution.

The disputed ordinance essentially does two things: first, it requires "adult-oriented stores" to take the doors off their individual movie booths, thereby reducing the likelihood that customers will engage in sexual activities inside those cubicles. Second, it requires adult-oriented enterprises — but not all book stores or movie houses in the city — to comply with a rather elaborate licensing scheme. Superb Video has moved for a permanent injunction declaring the ordinance to be unconstitutional.

Claims that the ordinance violates the fifth and ninth amendments have no merit and have not been pursued. As to the other claims, for the reasons explained below, I find that the open-booth provision of the ordinance does not violate the first amendment. However, portions of the licensing system contravene the first and fourteenth amendments. Therefore, I will enjoin Delafield from enforcing aspects of the licensing scheme found in the ordinance. The rest of the ordinance, including the open-booth regulation, survives constitutional scrutiny and remains enforceable.

FACTS

In November 1987, Suburban Video opened the Superb Video Store at 2410 Milwaukee Avenue, next to Interstate 94, in Delafield. The store specializes in sexually explicit materials, but none of its wares has been declared legally obscene (and the city makes no contention at this time that they are obscene). Along with books and magazines, Superb Video offers X-rated films and videos for viewing and purchase.

Patrons may watch films and videos in three types of booths. There are ten coin-operated video booths in which customers can view preprogrammed selections on 13" television monitors. There are also four studio booths where customers who are contemplating cassette purchases can view short portions of videos on 13" television monitors. Patrons select these choices at the front of the store with a clerk's help. Finally, there are six coin-operated 8-millimeter film booths. In these, the movie is projected onto the inside of the booth door after the customer enters the booth and shuts the door. The television monitors in the video booths, as well as the projectors in the film booths, are positioned on the walls opposite the booths' entrances.

Each booth is approximately three feet wide, four-and-one-half feet long, and eight feet high. All have walls that run from the floor to the ceiling, and all have doors. If the door is closed, no one on the outside can see in. The booths do not have what is apparently standard equipment in similar establishments — holes in the walls of the booths that permit the inhabitant of one booth to engage in sexual contact with the inhabitant of the adjoining booth. According to the folks at Superb Video, store clerks clean the booths' walls and floors nightly with mops and disinfectant. In addition, the booths receive a more thorough cleaning two or three times a week.

Delafield police have, to date, made no arrests at Superb Video; indeed, they have never even been summoned there. Superb Video is the only establishment in the city that features video and film viewing booths, though other stores in Delafield apparently offer X-rated video cassette rentals.

In December 1987, city officials retained an attorney who had served as a special prosecutor enforcing an anti-obscenity ordinance in Kenosha County. Delafield asked the lawyer to draft an ordinance that would "regulate" Superb Video. Contemporaneous local newspaper accounts reported that the attorney was hired to advise "on how to rid the city of Superb Video" — to help find "legal means to force the store out of the city." At about the same time, some Delafield officials appeared and spoke at a rally against pornography hosted by a group calling itself the "Concerned Citizens for Community Values." And shortly after the Common Council enacted the ordinance in question, a newspaper quoted the attorney as saying: "We've got some tools with which we could close them down in the future."

The "tools" are contained in section 11.14 of the Delafield Code of Ordinances, which the council adopted on February 15, 1988. It is a seventeen-page ordinance with eight "whereas" clauses.¹ The avowed purposes of the ordinance are "protecting and promoting the general welfare, health and safety" of Delafield residents. The Common Council "deems it necessary to provide for licensing and regulation of adult oriented establishments...." Citing the spread of AIDS, a sexually transmitted disease, the ordinance states:

It is well known and has been found in Milwaukee and Kenosha Counties, Wisconsin; Chattanooga, Tennessee; Newport News, Virginia; and Marion County, Indiana, to name a few locals sic, that the viewing booths in adult oriented establishments have been and are being used by patrons of said establishments for engaging in sexual acts, particularly between males, including but not limited to intercourse, sodomy, oral copulation and masturbation, resulting in unsafe and unsanitary conditions in said booths;

....

The ordinance goes on to define the businesses to which it applies. § 11.14(1)(a)-(e). In sum, these are "adult-oriented establishments" that offer "adult entertainment" or feature films, periodicals, or books depicting defined "specified sexual activities." "Adult entertainment" is defined as

any exhibition of any motion pictures, live performance, display or dance of any type, which has as its dominant theme, or is distinguished or characterized by an emphasis on, any actual or simulated "specified sexual activities," or "specified anatomical areas," as defined below, or the removal of articles of clothing or appearing partially or totally nude.

§ 11.14(1)(g).

After defining its targets, the ordinance mandates that they obtain licenses to operate in Delafield. § 11.14(2)(a). To obtain a license, an applicant — which includes the limited partners of a partnership applicant and stockholders with more than 5% of the stock of a corporate applicant — must provide (among other information) his or her: 1) addresses for the previous ten years, 2) height, weight, eye and hair color, 3) employment history for the previous decade, 4) fingerprints and photos, and 5) criminal record. § 11.14(3)(b). Failure or refusal to give the information can be grounds for denial of the license. § 11.14(3)(e).

Section 9 of the ordinance governs the physical layout of adult-oriented establishments. It requires, in relevant part, that "each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the adult-oriented establishment, and shall be unobstructed by any door, lock or other control-type devices." § 11.14(9)(a). In addition, every booth must "have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying the same."² § 11.14(9)(b)(2).

Finally, the ordinance prohibits "any type of sexual activity" in booths; it limits their occupancy to one individual at a time, and it compels proprietors to keep the booths clean and sanitary. §§ 11.14(9)(c); 11.14(10)(f).³

After the ordinance was enacted, Superb Video filed the application papers needed to obtain a license. On June 20, 1988, the Delafield Common Council voted to deny the license. On July 5, 1988, Superb Video filed this suit, seeking a temporary restraining order, preliminary injunction, and permanent declaratory and injunctive relief. At a hearing on July 11, the parties stipulated to the issuance of a temporary restraining order, and I issued one on July 13, 1988. On August 1, the Common Council reversed itself and granted a license to Superb Video.

On August 12, 1988, I held a hearing on the request for injunctive relief. At the conclusion of the hearing I took the matter under advisement, promising that a written decision would be issued in a week or two. The status quo was to be preserved pending my decision.

DISCUSSION

Superb Video asserts that the ordinance is unconstitutional for four reasons: 1) the motive behind the law was to put it out of business rather than to combat the spread of AIDS; 2) the ordinance does not allow for reasonable alternative avenues of communication; 3) by removing the doors from peep-show booths, the ordinance criminalizes sexual acts that are legal when done in the privacy of closed booths; and 4) a licensing scheme similar to Delafield's has been invalidated by the Court of Appeals for the Seventh Circuit. I am persuaded only by the last argument.

Although there is evidence that some of Delafield's civic leaders want to shut down Superb Video because it sells sexually explicit material — and although such censorial intentions are disturbing in a free society — I must avoid any inquiry into alleged improper motives on the part of Delafield lawmakers. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 929, 89 L.Ed.2d 29 (1986). "What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently...