Pleasureland Museum, Inc. v. Beutter
| Decision Date | 01 May 2002 |
| Docket Number | No. 00-3118.,00-3118. |
| Citation | 288 F.3d 988 |
| Parties | PLEASURELAND MUSEUM, INC., an Indiana corporation; Ed Balanow; and Shirlee Balanow, Plaintiffs-Appellants, v. Robert C. BEUTTER, as Mayor of the City of Mishawaka, The City of Mishawaka, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard Kammen (argued), McClure, McClure & Kammen, Indianapolis, IN, for Plaintiffs-Appellants.
John P. Gourley, Mishawaka City Atty., Mishawaka, IN, Bruce A. Taylor (argued), Fairfax, VA, for Defendants-Appellees.
Before RIPPLE, MANION, and KANNE, Circuit Judges.
The City of Mishawaka, Indiana enacted an ordinance designed to regulate sexually-oriented businesses. Pleasureland Museum, a sexually-oriented business in Mishawaka, filed suit under 42 U.S.C. § 1983, alleging that the ordinance violated the First Amendment, the right to privacy, the Due Process Clause, and the Equal Protection Clause. The district court upheld the ordinance in its entirety. We affirm in part, reverse in part, and remand in part.
For twenty years, plaintiffs Ed and Shirlee Balanow have operated Pleasureland Museum as a sexually-oriented business in Mishawaka, Indiana. Pleasureland sells and rents adult-oriented materials and offers its customers private viewing booths. In 1999, Mishawaka's common council began exploring ways to combat what it deemed the harmful secondary effects associated with sexually-oriented businesses.1 In that same year, the council approved Ordinance No. 44-15 (the "Ordinance"), which established a licensing and regulatory system applicable to all sexually-oriented businesses. Under the Ordinance's scheme, all sexually-oriented businesses operating within the city limits of Mishawaka are required to obtain a license and to comply with numerous regulations.
The preamble to the Ordinance states that the purpose of the Ordinance is "to protect the health, welfare, safety, morals and general welfare of the citizens of the City" by addressing the "deleterious effects of sexually-oriented businesses within the City." Further, the preamble explains that the Ordinance has "neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials."
Section 125.02(A)(2) defines the different types of sexually-oriented businesses subject to the Ordinance and in relevant part provides:
"Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, of any of the following:
a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations [collectively "Media"] which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas";
b. Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
c. An establishment may have other principal business purposes that do not involve the offering for sale rental or viewing of materials depicting or describing "specified sexual activities" or "specified anatomical areas," and still be categorized as [an] adult bookstore....
Section 125.02(P) defines "Specified Anatomical Areas" as "[l]ess than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts," and "[h]uman male genitals in a discernibly turgid state, even if completely opaquely covered" (collectively "nudity"). Section 125.02(Q) defines "specified sexual activities" as:
1. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts;
2. Sex acts, normal or perverted, actual or stimulated, including intercourse, oral copulation, or sodomy;
3. Masturbation, actual or simulated; or
4. Human genitals in a state of sexual stimulation, arousal or tumescence;
5. Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (4) of this subsection.
(collectively "sexual activities").
Sections 125.03 though 125.12 outline the licensing and regulatory scheme applicable to sexually-oriented businesses. Section 125.13 explains the requirements for employee licenses and Section 125.14 places restrictions on the exhibition of sexually-explicit films or videos in video booths and provides in relevant part:
A. A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel, regardless of whether or not a permit has been issued to said business under this Ordinance, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
1. Upon application for a sexually oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises wherein patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet.
. . . .
4. It is the duty of the owners and operator of the premises to insure that at least one employee is on duty and situated at each manager's station at all times that any patron is present inside the premises.
5. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises have two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.
6. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises to insure that the view area specified in Subsection 5 remains unobstructed by any doors, walls, merchandise, display racks or other materials or person at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A. of this section.
("Open Booth Restrictions"). Section 125.16 restricts the use of advertising, lighting, and exterior painting by sexually-oriented businesses ("Signage and Painting Restrictions"), and Section 125.19 regulates live entertainment.2
Section 125.22 bans the distribution of sexual devices:
A. It is unlawful for anyone to distribute, for commercial purposes, sell or offer for sale any device, instrument or paraphernalia designed or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
B. Such devices, instruments or paraphernalia shall include, but are not limited to, phallic shaped vibrators, dildo's, muzzles, whips, chains, bather restraints, racks, non-medical enema kits, body piercing implements (excluding earrings or other decorative jewelry) or other tools of sado-masochistic abuse.
Section 125.21 imposes a fine of up to $2,500 for any violation of the Ordinance. Finally, Section 125.23 contains a severability clause: "If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity with the remaining section, subsection and clauses shall not be affected thereby."
Shortly after its enactment, plaintiffs sued Mishawaka, seeking a permanent injunction against enforcement of the Ordinance, damages, and declaratory judgment. Mishawaka agreed not to enforce the Ordinance until the district court reached a decision on summary judgment. Both parties moved for summary judgment, and the district court granted Mishawaka's motion and entered judgment in its favor.
On appeal, plaintiffs contend that: (1) the Ordinance's definition of regulated businesses is facially overbroad; (2) the ban on the sale of sexual devices is facially void-for-vagueness and overbroad and violates the right to privacy; (3) requiring applicants and employees to provide significant personal information in order to obtain licenses violates the First Amendment; (4) the Signage and Painting Restrictions violate the First Amendment and the Equal Protection Clause; (5) the Open Booth Restrictions violate the First Amendment; and (6) the judicial review provision is invalid.
We review de novo the question of whether a state law or municipal ordinance violates the United States Constitution. See Gresham v. Peterson, 225 F.3d 899, 903 (7th Cir.2000). However, in assessing the constitutionality of an allegedly vague or overbroad state law or ordinance, "a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n....
To continue reading
Request your trial
-
Gold Diggers, LLC v. Town of Berlin, Conn.
...regulation using "substantial portion" had no real or substantial deterrent effect on protected speech); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 996 (7th Cir.2002) (same); Schultz, 228 F.3d at 850 ("regularly features" was readily susceptible to narrowing construction)7; World W......
-
Hensel v. City of Little Falls
...at 737–38 (“[A] municipality's asserted interests in traffic safety and aesthetics [are] significant.”); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1002 (7th Cir.2002) (significant government interests in “combat[ting] urban blight and ... prevent[ing] a decline in the value of .........
-
Vip of Berlin, LLC v. Town of Berlin
...portion of its business"). Shortly after Wisconsin Vendors I was issued, the Seventh Circuit held in Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 996-97 (7th Cir. 2002), that the language "significant or substantial portion of its stock-in-trade" was not unconstitutionally overbroad ......
-
Ben's Bar, Inc. v. Village of Somerset
...2746, 105 L.Ed.2d 661 (1989); Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 1000 (7th Cir.2002). 17. But see Alameda Books, 122 S.Ct at 1745 n. 2 (Souter, J., dissenting) (joined by Stevens, J. and Ginsburg,......