Libra Books, Inc. v. City of Milwaukee, Civ. A. No. 91-C-0504.

• Decision Date: 06 April 1993
• Docket Number: Civ. A. No. 91-C-0504.
• Citation: 818 F. Supp. 263
• Parties: LIBRA BOOKS, INC., a Delaware corporation d/b/a Libra Books, Plaintiff, v. CITY OF MILWAUKEE and Philip Arreola, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

818 F. Supp. 263

LIBRA BOOKS, INC., a Delaware corporation d/b/a Libra Books, Plaintiff, v. CITY OF MILWAUKEE and Philip Arreola, Defendants.

Civ. A. No. 91-C-0504.

United States District Court, E.D. Wisconsin.

April 6, 1993.

James A. Walrath, Shellow Shellow & Glynn, Milwaukee, WI, William H. Theis, Chicago, IL, for plaintiff.

Scott G. Thomas, Asst. City Atty., Milwaukee, WI, for defendants.

DECISION AND ORDER

REYNOLDS, Senior District Judge.

In this action, removed to this court from the Milwaukee County Circuit Court on May 15, 1991, plaintiff Libra Books, Inc. ("Libra"), claims that a Milwaukee ordinance concerning the structure of movie booths does not apply to Libra and that, even if it does, defendants' enforcement of the ordinance against Libra violates the First and Fourteenth Amendments. On May 1, 1992, defendants filed a motion for summary judgment. For reasons stated below, the motion is granted.

FACTS¹

In addition to selling adult books, magazines, and "sexually-oriented novelty items," Libra maintains 18 booths on its premises in which customers can watch pornographic videotapes. The tapes are displayed on coin-operated machines at a rate of $7.00 per movie or $.25 per minute. The booths, measuring about 3.5 feet (width) by 3.7 feet (depth) by 8 feet (height), are bounded on three sides by solid walls, one containing the projection screen, and on the fourth side by a partial swinging door that opens into a common hallway. The swinging doors are about 4.5 feet tall; the bottom of each door is about 2.2 feet from the floor, and the top of each door is about 6.8 feet from the floor. The doors cannot be locked or latched, and do not prevent Libra employees from determining whether a booth is being occupied by more than one person at a time. The hallways outside the booths are lighted to at least ten footcandles, so that removing the swinging doors would "impair substantially the viewing of movies" in the booths.

A Milwaukee ordinance provides in pertinent part:

Commercial establishments which offer private viewing of movies, tapes, slides, pictures or live performances of any kind must comply with the following requirements:

(1) BOOTH ACCESS. Each booth shall be totally accessible to and from aisles and public areas of the establishment. Access to a booth shall be unobstructed by doors, locks or other control-type devices.

(2) BOOTH CONSTRUCTION. (a) Any booth used to view a movie, tape, slide, picture or live performance of any kind must be so constructed as to discourage sexual activity and the spread of communicable disease by including, but not being limited to the following requirements:

1. Every booth shall be separated from adjacent booths and any nonpublic areas by a wall.

2. 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 booth.

* * * * * *

(3) BOOTH OCCUPANTS. (a) Only one individual shall occupy a booth at any time.

(b) No individual occupying a booth shall, at any time, engage in any type of sexual activity or cause any bodily discharge or litter associated with sexual activity while in the booth.

(c) No individual shall damage or deface any portion of the booth.

(4) OPERATOR RESPONSIBILITY. It shall be the responsibility of the owner, operator, licensee and employes of the establishment to:

* * * * * *

(b) Maintain at least 10 foot candles of light in the public portion of the establishment, including aisles, at all times.

(c) Insure compliance of the establishment and its patrons with the provisions of this section.

* * * * * *

(5) ENFORCEMENT. Both the health department and the police department shall have the authority to inspect the premises during operating hours and to enforce the provisions of this section.

(6) PENALTY. (a) Upon conviction of a violation of this section, violators shall be fined not less than $50 nor more than $1,000. Each and every act of violation shall constitute a separate offense. Each day of violation, disobedience, omission, neglect or refusal shall constitute a separate offense. Upon default of payment, the violator shall be imprisoned not less than 3 days nor more than 30 days.

(b) Failure to comply with the requirements of this section may constitute grounds for the suspension, revocation or nonrenewal of licenses issued by the city to operate such an establishment.

City of Milwaukee, WI, Code § 80-3 (1986). The ordinance is purportedly designed to control the transmission of communicable disease and to address the "very unsanitary practice" of engaging in sexual acts in movie booths. (May 1, 1992 Stipulated Findings of Fact, Ex. A.)

Defendants presently intend to enforce this ordinance against Libra, on the ground that the doors on Libra's booths violate subsection (2)(a)2. of the ordinance. In all other respects, Libra is in compliance with the ordinance. Defendants do not presently intend to enforce the ordinance against the numerous hotels in the city, whose rooms start at $25.50 per day, have doors, and enable their occupants to watch pornographic films for about $6.00 per film. Nor do defendants presently intend to enforce the ordinance against the various other businesses, such as photography studios, video production studios, television stations, and advertising agencies, that maintain darkrooms and the like for the "private viewing" of movies, pictures, and so forth.

ANALYSIS

The court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In this case, the parties have identified and agreed upon all material facts, so the court may proceed to determine what legal conclusions may be drawn those facts.

The court addresses, in turn, Libra's claims that the ordinance infringes Libra's freedom of speech, that enforcement of the ordinance violates Libra's right to equal protection, that a critical term in the ordinance is unconstitutionally vague, and that Libra's establishment does not fall within the terms of the ordinance.

I. The Free Speech Claim

Libra claims that the ordinance violates its right to freedom of speech because compliance with the ordinance would interfere with Libra's ability to show films in its booths. Defendants contend, however, that the ordinance is permissible as a "time, place, or manner" restriction. Such restrictions are valid if they are content-neutral, are narrowly tailored to serve a significant governmental objective, and leave open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Berg v. Health and Hosp. Corp. of Marion County, 865 F.2d 797, 802 (7th Cir.1989). In Berg, the court found valid an "open booth" provision almost identical to the provision at issue in this case. Id.

Libra insists that this case is different from Berg, however, because the amount of aisle lighting required by the Milwaukee ordinance would substantially impair the viewing of movies in the booths. Berg, by contrast, was based in part on the assumption that "persons who wish to watch entertainment in individual enclosures may continue to do so; their access to such films and other entertainment is not substantially impaired by the removal of doors on the booths." Berg, 865 F.2d at 803. Furthermore, says Libra, the instant case presents an alternative not considered in Berg — the use of partial doors — the availability of which demonstrates that the Milwaukee ordinance was not narrowly tailored to serve its objective. Berg, 865 F.2d at 804.

The court concludes, however, that the ordinance is a valid time, place, and manner restriction. Libra concedes that the ordinance is content-neutral, and that it serves the significant governmental interests in controlling the spread of communicable disease and in alleviating the unsanitary conditions of certain public accommodations. The court finds, furthermore, that the ordinance leaves open ample alternative channels of communication. True, the required lighting would physically impair the display of films in Libra's booths as they are presently constructed. Thus, the Milwaukee ordinance may close more channels of communication than were closed by the ordinance at issue in Berg. Nevertheless, Libra is not without alternatives. It may deepen its booths to reduce the ambient effect of aisle lighting. Or, it may show its films in rooms large enough to fall outside the ordinance's definition of "booth," thus avoiding the no-doors rule altogether. Libra has not maintained that such alternatives do not exist or that the size of its booths are somehow a component of its "speech." Compare: Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53-54, 106 S.Ct. 925, 931-32, 89 L.Ed.2d 29 (1986); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293-94, 104 S.Ct. 3065, 3068-69, 82 L.Ed.2d 221 (1984).

Finally, the court finds that the ordinance is narrowly tailored to fit its objective. Libra contends that partial doors are a satisfactory alternative to the no-doors rule because they cannot be locked or latched and are two feet off the floor, so that inspectors or employees can easily determine whether there is more than one occupant in a booth. But a no-door requirement would seem to accomplish that and more, with less effort. The deterrent effect of partial doors depends to some extent on the likelihood that employees or inspectors will try to look behind the doors; as enforcement declines, so does deterrence. But if booths are open, the customers' bashfulness may...