Tee & Bee, Inc. v. City of West Allis

• Decision Date: 19 August 1996
• Docket Number: No. 92-CV-1299.,92-CV-1299.
• Citation: 936 F. Supp. 1479
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: TEE & BEE, INC., Plaintiff, v. CITY OF WEST ALLIS, Defendant.

936 F. Supp. 1479

TEE & BEE, INC., Plaintiff, v. CITY OF WEST ALLIS, Defendant.

No. 92-CV-1299.

United States District Court, E.D. Wisconsin.

August 19, 1996.

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Jeff Scott Olson, Olson Law Office, Madison, WI, for Plaintiff.

Scott E. Post, West Allis City Attorney's Office, West Allis, WI, for Defendant.

DECISION AND ORDER

RANDA, District Judge.

This matter comes before the Court on defendant City of West Allis' ("the City") motion for summary judgment. For the following reasons, the City's motion is granted and the case dismissed.

FACTS

In 1990 and 1991, the West Allis Common Council ("the Council") considered Ordinance No. 5835, which, among other things, created section 9.28 of the West Allis Revised Municipal Code. Section 9.28 was designed to regulate the operation of adult businesses in the City. The ordinance was first introduced on July 17, 1990 and was sent to the Council's License and Health Committee, where it remained until August 15, 1991. During that time, the ordinance was sent to various staff members for analysis, discussion, and revision.

The ordinance set forth the Council's factual findings and listed the studies the Council relied upon in finding the ordinance necessary. Based on those findings, the Council deemed the ordinance necessary to prevent the concentration of adult businesses and to prevent such businesses from locating near certain other uses. The Council also found it necessary to regulate and license each individual adult business in order to minimize the negative secondary effects associated with adult businesses. On August 20, 1991, the Council ("the Council") formally passed Ordinance No. 5835.

In October and November of 1991, the License and Health Committee considered amending § 9.28. On November 18, 1991, the Council passed Ordinance No. 5867 amending § 9.28. The amended ordinance defined "adult bookstore" as follows:

"Adult bookstore" means an establishment having a substantial portion of its stock in trade, for sale, rent, lease, inspection or viewing, books, films, video cassettes, magazines or other periodicals, which are distinguished or characterized by their emphasis on matters depicting, describing or relating to "specified anatomical areas," as defined below, and in conjunction therewith have facilities for the presentation of "adult entertainment," as defined below, including adult oriented films, movies, or live performances for observation by patrons therein.

The effect of this change was to classify as an "adult bookstore" only those businesses that offered the viewing of certain materials on the business premises.

On or about May 20, 1992, Tee and Bee, Inc. ("T & B") opened Super Video and Variety ("Super Video") at 9800 West Greenfield Avenue. Super Video engaged in the sale of sexually explicit books, magazines, videotapes, and other materials. Because Super Video had no facilities for the presentation of adult materials, it did not fall within the definition of "adult bookstore." This did not alleviate the public's concerns, however. In response to public anxiety concerning Super Video, the License and Health Committee considered another amendment to § 9.28. Committee meetings were held on the matter on July 16, August 13, and October 15, 1992. In addition, a public hearing was held on September 22, 1992, at which time City staff members, along with members of the public, provided additional information regarding adult businesses in general and Super Video in particular.

On October 20, 1992, the Council passed the proposed amendment to § 9.28 which, among other things, redefined the phrase "adult bookstore":

"Adult bookstore" means an establishment which has a facility or facilities, including but not limited to booths, cubicles, rooms, or stalls, for the presentation of "adult entertainment" as defined below, including adult oriented films, movies or live performances for observation by patrons therein, or which, as part of its regular and substantial course of conduct, offers for sale, rent, trade, lease, inspection or viewing books, films, video cassettes, magazines or other periodicals, which are distinguished or characterized by their emphasis on matters depicting, describing or relating to "specified anatomical areas" or "specified sexual activities" as defined below.

In November of 1992, the City Clerk sent out a questionnaire to all of the City's known bookstores and video stores. T & B's response was to file this lawsuit on December 4, 1992, seeking a preliminary and permanent injunction enjoining enforcement of amended § 9.28. Initially, a magistrate judge issued a recommendation granting the preliminary injunction. However, on September 2, 1994, the Court declined to adopt the magistrate's recommendation, denied plaintiff's request for a preliminary injunction, and dissolved whatever preliminary injunction may have been in effect.

On September 15, 1994, T & B sought a license to operate an adult bookstore. The Council denied the plaintiff's application. In denying the application, the Council relied on provisions of amended § 9.28 which are disputed in this action. In response to the Council's denial, T & B reorganized its business so that less than fifty percent of its stock-in-trade consisted of sexually explicit material. As a result, T & B's business is no longer classified as an adult-oriented business.

LAW

I. SUMMARY JUDGMENT

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Summary judgment is particularly appropriate in a case challenging the facial constitutionality of a statute. Felix v. Young, 536 F.2d 1126, 1130, n. 7 (6th Cir.1976). The Court finds that no genuine issues of material fact are present in the record before it.

II. STANDING

T & B's suit against the City presents a facial challenge to the constitutionality of § 9.28. T & B must have standing to bring such a challenge. To have standing, T & B must demonstrate concrete and specific facts indicating both that the challenged ordinance injured T & B and that court intervention would benefit T & B in a tangible way. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). T & B's standing to challenge the ordinance's constitutionality must be evaluated separately with respect to each contested provision of the ordinance. Genusa v. City of Peoria, 619 F.2d 1203, 1209 (7th Cir.1980). The magistrate judge concluded that T & B had standing to challenge the following provisions of § 9.28: (1) the license disability and disclosure provisions for applicants, shareholders, officers, and directors; (2) the employee permit and disclosure provisions; (3) the license revocation provisions; (4) the hours-of-operation provision; (5) the special inspection provision; (6) the employee register provision; (7) the vicarious liability provision; (8) the entertainment listing provision; and (9) the employee permit procedural provisions. This Court previously affirmed and adopted the magistrate's ruling on standing.

The City argues that T & B no longer has standing to challenge § 9.28 because T & B brought suit in state court seeking a declaration that Super Video no longer qualifies as an "adult business". Lacking such status, Super Video would not be subject to the provisions of § 9.28. The Court does not believe the state court action affects T & B's standing to challenge the ordinance. T & B reorganized its business solely in response to the Council's denial of its license application to operate an adult bookstore. The Council denied the application based on provisions of the ordinance disputed in this action.¹ Moreover, it is undisputed that T & B will return Super Video to its former status as an adult bookstore should the ordinance be invalidated. Therefore, T & B has standing to contest the provisions of the ordinance.

III. CONSTITUTIONALITY

The First Amendment does not immunize adult-oriented businesses from regulations designed to protect public health, safety, and general welfare. Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976) (Powell, J. concurring); Genusa, 619 F.2d at 1214; Chulchian v. City of Indianapolis, 633 F.2d 27, 31 (7th Cir.1980). A municipality may regulate activities protected by the First Amendment provided the following four-part test is met: (1) the intended activity lies within the governmental body's sphere of regulatory power; (2) the regulation "furthers an important or substantial governmental interest"; (3) the governmental interest is unrelated to suppressing the content of the regulated material; and (4) "the incidental restriction on alleged First Amendment freedoms is no greater than essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). A facial examination of § 9.28 indicates that all four parts of the O'Brien test are satisfied. First, the City clearly acted within the scope of its police power in enacting an ordinance relating to the regulation and licensing of adult-oriented establishments. See generally Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.1980); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); TK's Video, Inc. v. Denton County, 24 F.3d 705 (5th Cir.1994). Second, in order to establish the presence of substantial government...