Green Valley Inv. Llc v. County of Winnebago
| Decision Date | 15 July 2011 |
| Docket Number | Case No. 08–C–0706. |
| Citation | 790 F.Supp.2d 947 |
| Parties | GREEN VALLEY INVESTMENT LLC, Plaintiff,v.COUNTY OF WINNEBAGO, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
OPINION TEXT STARTS HERE
Jeff Scott Olson, Jeff Scott Olson Law Firm SC, Madison, WI, for Plaintiff.Barbara J. Zabawa, Charles H. Bohl, Barbara J. Janaszek, Whyte Hirschboeck Dudek SC, Milwaukee, WI, for Defendant.
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. # 12) AND DISMISSING CASE
Green Valley Investments, LLC, filed this action against the County of Winnebago, pursuant to 42 U.S.C. § 1983 alleging that §§ 17.13(6)(b)(9), 17.13(6)(c) and 17.25 of the County's Zoning Code unconstitutionally regulate its First Amendment expression. It asserts that the Ordinance violates the First and Fourteenth Amendments in the following ways: 1) § 17.13 is facially unconstitutional because it is vague and overbroad; 2) together §§ 17.13 and 17.25 are an unconstitutional prior restraint; and 3) in combination §§ 17.13 and 17.25 are facially unconstitutional because they do not meet the requirements of a time, place and manner regulation of expression. The County seeks summary judgment and dismissal of the case contending that the Ordinance is a constitutional exercise of its zoning powers. For the reasons set forth below, the County's motion will be granted in part and denied in part and this case will be dismissed.
The County is a Wisconsin unit of local government with a capacity to sue and be sued. (Stip. of Facts, ¶ 1.) Green Valley is a Wisconsin limited liability corporation with the capacity to sue and be sued. (Stip. of Facts, ¶ 2.) Green Valley owns the property at 14131 Green Valley Road in the Town of Neenah, Winnebago County, Wisconsin, and has operated a tavern, known as Stars Cabaret, there since July 2006. (Stip. of Facts, ¶¶ 3–4.)
Stars Cabaret is licensed by the City of Neenah to sell alcoholic beverages and its liquor license must be renewed annually. (Stip. of Facts, ¶¶ 5–7.) Each day that it has been open since July 25, 2006, Stars Cabaret has presented exotic or nude dance entertainment for its customers. (Stip. of Facts, ¶¶ 8–9.)
According to Wis. Stat. § 59.69, the County has the authority to enact zoning ordinances to, among other things, protect and promote the general welfare, health and safety of its citizens, protect property values and promote orderly land use development. (Stip. of Facts, ¶ 13.) The Winnebago County Zoning Code controls land use and all lands within the geographic limits of the Township of Neenah, including Green Valley's premises. (Stip. of Facts, ¶ 14.) When Stars Cabaret opened, the Winnebago County Zoning Code regulated adult expression by creating an Adult Entertainment Overlay District (AEO), which applied to any “adult establishment.” (Stip. of Facts, ¶ 15.)
The Ordinance was passed on August 21, 2007, and was published on October 27, 2007. (Stip. of Facts, ¶ 23.) After it received sufficient votes from the Town Boards of the affected communities, it was enacted by the Winnebago County Board. (Stip. of Facts, ¶ 24.) Later in August 2007, the County Clerk sent the Ordinance to Town Clerks. (Stip. of Facts, ¶ 25.) No Town Board communicated any objection to the County Board after the Ordinance was passed. (Stip. of Facts, ¶ 26.)
The Ordinance provides a moratorium permitting adult entertainment establishments, such as Stars Cabaret, to continue nonconforming uses in substantially the same manner for one-year from the date of its enactment. (Stip. of Facts, ¶ 28.) Section 17.13(6)(c)12 permanently exempts existing businesses, like Stars Cabaret, from a 600–foot setback applicable to adult entertainment establishments. This section provides:
Amortization. Any adult entertainment establishment lawfully operating as of August 21, 2007, which is in violation of this section shall be deemed a nonconforming use. The nonconforming use shall be permitted to continue in substantially the same manner for a period not to exceed one (1) year from the enactment of this section unless sooner terminated for any reason, voluntarily discontinued or brought into compliance with this section. After one year, the owner or operator of any adult entertainment business must comply with the provisions of this section. The existing structure(s) and the use contained therein, shall be exempt from the 600–ft setback requirements of this section. Any expansion of the existing structure(s) and the use contained therein shall adhere to the 600 ft setback requirements of this section.
(Stip. of Facts, ¶ 34.) On November 13, 2007, the Winnebago County Assistant Zoning Administrator sent Green Valley a letter advising that after one year from enactment of the Ordinance, Stars Cabaret must be rezoned as an AEO and would require a conditional use permit to operate lawfully at its current location. (Stip. of Facts, ¶ 29.) In a clarifying letter to Green Valley, dated August 29, 2008, Winnebago County Corporation Counsel, John A. Bodnar, stated that enforcement of the Ordinance would be held in abeyance for one year from the Ordinance's publication date, October 27, 2007. (Stip. of Facts, ¶ 30.)
The County's primary concern in enacting the Ordinance was to reduce the secondary effects associated with adult entertainment businesses. (Stip. of Facts, ¶ 35.) In developing the Ordinance, the County, reviewed and utilized a study entitled “Everything You Always Wanted to Know About Regulating Sex Businesses,” by Eric Damian Kelly and Connie Cooper. (Stip. of Facts, ¶ 36.) In drafting the Ordinance, Winnebago County's Planning and Zoning Committee (the Committee) held a public hearing on May 29, 2007, to take testimony concerning the impact, if any, of adult entertainment businesses and the appropriate regulations. (Stip. of Facts, ¶ 37.) Green Valley's representatives, including Attorney Jeff Scott Olson, appeared and spoke in opposition to the Ordinance. (Stip. of Facts, ¶ 38.)
The Ordinance states that it does not intend “to suppress any speech activities protected by the First Amendment, but to enact a regulation that addresses the negative secondary effects of adult entertainment businesses....” (Stip. of Facts, ¶ 39.) The Ordinance sets forth its purpose as:
It is the purpose of this section to regulate adult entertainment businesses in order to promote the health, safety, and general welfare of citizens of Winnebago County, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of adult entertainment businesses within Winnebago County. The provisions of this section have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult materials. Similarly, it is neither the intent nor effect of this section to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult entertainment to their intended market. Neither is it the intent nor effect of this section to condone or legitimize the distribution of obscene material.
(Stip. of Facts, ¶ 40.)
According to § 17.13(6)(c)(4)(c), an “adult cabaret” is an adult establishment. An “adult cabaret” is defined as:
A nightclub, dance hall, bar, restaurant, or similar commercial establishment which regularly features:
(a) Persons who appear semi-nude; or
(b) Live performances that are characterized by the exposure of “specified sexual activities” or “specified anatomical areas”; or
(c) Films, motion pictures, video cassettes, streaming videos, DVDs, slides or other photographic reproductions which are characterized by the exhibition or display of “specified sexual activities” or “specified anatomical areas.”
(d) This definition shall expressly exclude films, motion pictures, video cassettes, slides or other similar photographic reproductions given an “R” or “NC–17” rating by the Motion Picture Association of America.
(Stip. of Facts, ¶¶ 41, 51–52.) The definition of “adult cabaret” expressly excludes “films, motion pictures, video cassettes, slides or other similar photographic reproductions given an “R” or “NC–17” rating by the Motion Picture Association of America. (Stip. of Facts, ¶ 53.) The Ordinance excludes from regulation theaters, performing arts centers, civic centers, and dinner theaters where live dance, ballet, music and dramatic performances of serious artistic merit are offered on a regular basis and establishments in which the predominant business or attraction is not the offering of entertainment intended for sexual interests or titillation of customers and where the establishment is not distinguished by an emphasis on or the advertising or promotion of nude or semi-nude performances. (Stip. of Facts, ¶ 54.) It places no restrictions on the clothing to be worn by entertainers in adult cabarets. (Stip. of Facts, ¶ 55.) The Ordinance mandates that the hours of operation for adult cabarets be the same as the hours of operation for bars and taverns within the community in which they are located. (Stip. of Facts, ¶ 56.)
“Regularly features” is defined as “a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as part of the ongoing business of the adult establishment.” (Stip. of Facts, ¶ 42.) “Characterized by” is defined as ...
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Green Valley Invs., LLC v. Cnty. of Winnebago
...much discretion in authorities and contained no time limits curbing the government approval process. Green Valley Inv. v. County of Winnebago, 790 F. Supp.2d 947, 959-60 (E.D. Wis. 2011). Here, the Defendant concedes, for present purposes, that the ordinance was an unconstitutional prior re......