Mitchell v. COM'RS OF COM'N ON ADULT ENT. EST., Civ. A. No. 91-436 MMS.

• Citation: 802 F. Supp. 1112
• Decision Date: 27 August 1992
• Docket Number: Civ. A. No. 91-436 MMS.
• Parties: Francis R. MITCHELL and Bob's Discount Adult Books, Inc., a corporation of the State of Delaware, Plaintiffs, v. COMMISSIONERS OF the COMMISSION ON ADULT ENTERTAINMENT ESTABLISHMENTS OF THE STATE OF DELAWARE, an entity within the State of Delaware, Department of Administrative Services, Division of Business and Occupational Regulation, in their official capacities, and Charles M. Oberly, III, in his official capacity as Attorney General of the State of Delaware, and Secretary, Delaware, Department of Health and Social Services, an entity within the State of Delaware, Defendants.
• Court: U.S. District Court — District of Delaware

802 F. Supp. 1112

Francis R. MITCHELL and Bob's Discount Adult Books, Inc., a corporation of the State of Delaware, Plaintiffs, v. COMMISSIONERS OF the COMMISSION ON ADULT ENTERTAINMENT ESTABLISHMENTS OF THE STATE OF DELAWARE, an entity within the State of Delaware, Department of Administrative Services, Division of Business and Occupational Regulation, in their official capacities, and Charles M. Oberly, III, in his official capacity as Attorney General of the State of Delaware, and Secretary, Delaware, Department of Health and Social Services, an entity within the State of Delaware, Defendants.

Civ. A. No. 91-436 MMS.

United States District Court, D. Delaware.

August 27, 1992.

COPYRIGHT MATERIAL OMITTED

Stephen F. Dryden, Heckler & Cattie, Wilmington, Del. (Lewis H. Robertson, Evans, Osborne & Kreizman, Little Silver, N.J., of counsel), for plaintiffs.

James J. Hanley, John K. Welch, and Kevin R. Slatterly, Deputy Attys. Gen., State of Del. Dept. of Justice, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

Plaintiffs filed suit seeking a judgment declaring unconstitutional and granting permanent injunctive relief from two recently enacted amendments to a Delaware statute regulating adult entertainment establishments. The statute regulates closing hours and imposes open-booth requirements on adult entertainment establishments. Defendants filed a cross-motion for summary judgment urging the Court to uphold the constitutionality of the amendments and deny permanent injunctive relief. Defendants' cross-motion for summary judgment will be granted and plaintiffs' motion for summary judgment denied.

I. The Facts

Plaintiff Bob's Discount Adult Books, Inc. ("Adult Books") is a Delaware corporation which owns and operates an adult entertainment establishment at 174 South DuPont Highway in the County of New Castle, Delaware.¹ Plaintiff Francis R. Mitchell ("Mitchell") is an officer, director and principal stockholder of Adult Books.

Directly across South DuPont Highway from Adult Books' location is a residential area known as Midvale. Some residences share their rear lot lines with the right-of-way of South DuPont Highway.

Since March, 1976, Adult books has offered for sale books, magazines, films and novelties of an adult nature and until recently had provided adult entertainment in the form of film and video presentation in enclosed booths. From about 1976 until 1985, Adult Books also offered live entertainment viewed by a patron from an enclosed booth. The live entertainment was of a sexually explicit nature.

Each of Adult Books' booths is designed for the provision of entertainment, either in the form of a brief presentation of a film, video or a live act. Until recently, each booth was equipped with a door which affords privacy to a patron and screens out light, noise and distractions from persons passing by.

After some two or so years of slowly establishing patronage, Adult Books has been visited by between 200 to 500 patrons in a typical day. Until recently, Adult Books was open to the public from 10:00 a.m. Monday through Saturday until 3:00 a.m. the following day, and from 10:00 a.m. on Sunday until 2:00 a.m. the following day. Adult Books typically closed at 6:00 p.m. on Christmas Eve until 10:00 a.m. on the day following Christmas, and closed at 6:00 p.m. on New Year's Eve. Otherwise, Adult Books remained open during its normal business hours for all other holidays in the absence of any unusual staffing or other problems.

In 1977, the Delaware General Assembly adopted 24 Del.C. Ch. 16, now known as the Adult Entertainment Establishments Act (the "Act"). The Act established the defendant Commission on Adult Entertainment Establishments (the "Commission"),² defined "adult entertainment establishments" to include establishments such as Adult Books and imposed a requirement that persons who engage in the operation of such an establishment first obtain a license therefor from the Commission and comply with certain other provisions and restrictions. The Act further provides for criminal penalties for those who operate an adult entertainment establishment without a license or otherwise violate requirements of the Act.³

On June 5, 1991, the Delaware General Assembly enacted Senate Bill No. 163, amending 24 Del.C. § 1625 by adding a new sub-section limiting hours of adult entertainment establishments to 10:00 a.m. through 10:00 p.m. Monday through Saturday. In addition they must remain closed on all Sundays and holidays.⁴ Contemporaneously the General Assembly enacted Senate Bill No. 164, adding new sub-chapters, including 24 Del.C. § 1633(b), prohibiting booths used for the viewing of motion pictures or other forms of entertainment from having doors, unless one side is open to an adjacent public room so that the area inside is visible to persons in the adjacent room.⁵

The synopsis that accompanied Senate Bill No. 163 provides:

This Act provides certain time restrictions for adult entertainment establishments. In addition, this Act limits the operation of adult entertainment establishments to the hours of 10:00 a.m. and 10:00 p.m. Mondays through Saturdays; it requires such business to remain closed on Sundays and holidays.

Courts have upheld such time restrictions, and found that they may, in fact, further a significant community interest in promoting the welfare of a community's neighborhoods. One court noted that such time restrictions, which permit an adult entertainment establishment to remain open fourteen hours per day, six days per week, did not suppress or ban sexually-explicit materials from the community, and were not manifestly arbitrary.

The case referred to in the synopsis apparently is Star Satellite v. City of Biloxi, 779 F.2d 1074 (5th Cir.1986). The ordinance challenged in Star Satellite was adopted "after extensive study by the City of Biloxi." Id. at 1077. In addition, Senator McBride, the sponsor of the legislation, explained the rationale of Senate Bill No. 163 as follows:

Senate Bill No. 163 is an attempt ... by legislators from affected areas and others to allow the citizens in their community, if you will, to recapture their community. The adult entertainment establishments, particularly ones in my Senatorial District and nearby, unfortunately, were put into place and established before the adult entertainment laws were re-written by myself, Representative Spence and others back in the early '80s and in several cases they abut residential communities. In fact, our neighbors, if you will, of residential homes where families (inaudible)⁶ the establishments have become an absolute nuisance to the community in the form of additional traffic and many, many other activities that take place unfortunately in the area because of these establishments. This bill before us now attempts to regulate, if you will, the hours of operation from in the morning until 10 p.m. to be closed Sundays and on legal holidays. We believe that while the law allows these establishments to operate, we believe that we also have a right to set some reasonable hours of operation so that the neighborhoods can get some peace and quiet at least part of the day....

App. to Pl.Br. at 32a.

The synopsis accompanying Senate Bill No. 164 provides:

Magazine and newspaper articles, from time to time, contain articles relating to `anonymous sex' which takes place within certain adult entertainment establishments or similar places. It is the basic premise of this Act that such conduct is conducive to the spread of communicable disease; and is not only a danger to persons frequenting the adult entertainment establishments, or those engaged in such conduct, but it is also of danger to the pubic public....

In addition, Senator McBride told the Senate that:

This is a very serious piece of legislation for a number of reasons. And we did a lot of research with it and got a lot of help in developing the legislation and there has been some question in the past in other states about whether or not an open booth law ... is constitutional and we have found through research that that has been upheld in federal courts....

App. to Pl.Br. at 42a (emphasis added).

Subsequent to the passage of the legislation, Ms. Pasqualine Robison, one of the members of the Commission and a resident of Midvale, testified she had discussed with Senator McBride, prior to the passage of Bill No. 163, the various problems caused by adult entertainment establishments to the surrounding community. This included noise, traffic, parking and the performance of sexual acts in the community. Dep. of Pasqualine Robison, App. to Pl.Br. at 74a. Joann Christian, another member of the Commission and resident of Midvale, also testified that she had discussed with Senator McBride, prior to the passage of the legislation, problems caused by adult entertainment establishments, such as noise, excessive parking and the discarding of sexually oriented material on lawns. Dep. of Joann Christian, App. to Pl.Br. at 108a. Ms. Christian also testified that she discussed with Senator McBride the possibility of curtailing the hours of adult entertainment establishments to address these problems. Id. at 112a.

The plaintiffs have limited the hours of the operation of Adult Books and have completely removed the doors of the booths used for the presentation of live, film or video entertainment in compliance with the challenged provisions of the Act. Plaintiffs complain that these two measures have resulted in a dramatic decrease in patronage to the establishment. Plaintiffs assert patronage has diminished because the establishment is now closed at popular times and patrons are not willing to utilize booths without doors because they are distracted by light, noise, passers-by, or because they are unwilling to view sexually explicit material when they, as well as their choices of materials, are exposed to public view. Plaintiffs claim that as...