Richardson v. Wile

Decision Date09 September 1987
Citation535 A.2d 1346
PartiesJames L. RICHARDSON, Plaintiff, v. A. Scott WILE and Susan S. Wile, Intervenors, v. TOWN OF OCEAN VIEW, Wayne C. Breasure, Individually and as President of the Commissioners of the Town of Ocean View, Ralph Hitchens, Individually and as Secretary of the Commissioners of the Town of Ocean View, Lydia D. Quillen, Individually and as Treasurer of the Town of Ocean View, Richard E. Mitchell, John W. Johnson, Individually and as Commissioners of the Town of Ocean View, Town of Ocean View Planning and Zoning Board, Gus Gentile, Ralph Hitchens, Frank Lathbury, David Long and Dick Mitchell, Individually and as Members of the Town of Ocean View's Planning and Zoning Board, Elbridge Murray, III, Individually and as Building Inspector For the Town of Ocean View, Defendants. . Submitted:
CourtUnited States State Supreme Court of Delaware

Nicholas H. Rodriguez (argued), Catherine T. Hickey, Esquire and William W. Pepper of Schmittinger & Rodriguez, Dover, for plaintiff.

Roy S. Shiels (argued) of Brown, Shiels & Chasanov, Dover, for intervenors.

Walter L. Pepperman, II (argued), and Palmer L. Whisenant of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendants.

Before CHRISTIE, C.J., MOORE and WALSH, JJ.

WALSH, Justice:

The United States District Court for the District of Delaware has certified two questions of law for this Court to consider. In the exercise of our discretion to hear questions for which there are urgent and important reasons for determination, we have decided to accept only one question. 1 The issue accepted is whether a business establishment which rents or sells x-rated video cassettes is an "adult entertainment establishment" as defined by 24 Del.C. § 1602.

The question certified by the District Court requires this Court to determine the scope of the phrase "adult entertainment establishment" as used in 24 Del.C. ch. 16. Chapter 16, sometimes referred to as the Adult Entertainment Establishment Act (the "Act"), is a comprehensive statutory scheme for the licensing of adult entertainment establishments within the State. 24 Del.C. § 1606. Under the Act the licensing responsibility is delegated to a Commission on Adult Entertainment Establishments composed of five members appointed by the Governor. Id. at § 1603. Each applicant for an establishment license is required to disclose to the Commission a broad range of information detailing the applicant's identity and background. Id. at § 1613. Similar information must be provided on behalf of all persons "responsible for the day-to-day management of the adult entertainment establishment." Id. at § 1613(b). If the applicant is a partnership or corporation a filing must be made for each partner or principal stockholder. Id. at § 1613(c), (d). To date, the Commission has not required a video retail store which rents or sells x-rated videos to be licensed under Chapter 16.

A literal reading of section 1602 suggests that a video rental store which rents or sells x-rated video cassettes would fit within the section's definition of an "adult entertainment establishment." However, in light of the clear legislative intent expressed in 24 Del.C. § 1601 and the constitutional entanglement implicit in the inclusion of video rental stores within the scope of section 1602, we hold that a business which rents or sells x-rated videos is not per se an "adult entertainment establishment."

I

The parties have stipulated to the facts which are pertinent to our consideration of the certified question. On May 21, 1984, James L. Richardson and A. Scott and Susan S. Wile (the "Applicants") filed with the Planning and Zoning Commission of the Town of Ocean View separate applications for permission to open video rental stores within the Town of Ocean View (the "Town"). After conducting hearings on the matter, the Commission voted to deny both applications.

On June 11, 1985, Richardson filed a complaint in the United States District Court seeking injunctive relief and damages against the Town, alleging that his constitutional rights were violated when his site plan application for the proposed video rental business was denied. Subsequently, A. Scott and Susan S. Wile were permitted to intervene in support of Richardson's claim.

In its amended answer to Richardson's complaint, the Town asserted as a defense 22 Del.C. § 837. 2 Section 837 provides that no "adult entertainment establishment," as defined by 24 Del.C. § 1602, shall be located:

(1) within 500 feet from any residence; or

(2) within 1,500 feet from any other adult entertainment establishment; or

(3) within 2,800 feet from any church or school.

The District Court has certified the following questions for this Court's consideration:

(1) Is a business establishment, which rents or sells x-rated video cassettes, an "adult entertainment establishment" as defined by 24 Del.C. § 1602?

(2) If any business establishment, which rents or sells x-rated video cassettes, is an "adult entertainment establishment," as defined in 24 Del.C. § 1602, regardless of whether the owners or management of such business establishment are likely to facilitate the crimes of obscenity and prostitution, are the time, place, and manner restrictions on such business establishments unconstitutionally broad due to the fact that they fail to show the State's purpose by the least restrictive means possible? 3

The parties have further stipulated that 25% of the Applicants' proposed video rental businesses would be in the rental of "x-rated" videos. These "x-rated" videos will contain "sexually-oriented" material as defined in section 1602(18), depicting sexual activity involving human beings, including acts of human masturbation, sexual intercourse, sodomy, cunnilingus, and fellatio.

In Delaware, it is a settled rule of construction to read a statute as a whole in an effort to effectuate its general legislative intent. Specifically, this Court has held:

The object of statutory construction is to give a sensible and practical meaning to a statute as a whole in order that it may be applied to future cases without difficulty ... and if a literal interpretation leaves a result inconsistent with the general statutory intention, such intention must give way to the general intent. This is particularly true where such a literal interpretation would lead to unjust and mischievous consequences.

Burpulis v. Director of Revenue, Del.Supr., 498 A.2d 1082, 1087 (1985) (citing Nationwide Mutual Insurance Co. v. Krongold, Del.Supr., 318 A.2d 606, 609 (1974)).

Section 1602 defines "adult entertainment establishment" as:

... any commercial establishment, business or service, or portion thereof, which offers sexually oriented material, devices, performances, or any combination thereof, or any other form, whether printed, filmed, recorded or live.

24 Del.C. § 1602(2). At first glance, a literal reading of section 1602 would seem to include a video rental store which rents x-rated videos as a "... business ... which offers sexually oriented material ... in any form, whether printed, filmed, recorded or live." Id. However, in construing a statute we are not restricted to a literal reading but must proceed to test that reading against legislative intent.

We are not required to speculate concerning legislative intent since the General Assembly has expressly defined the legislative purpose. Section 1601 states as the purpose of the Act the reduction and prevention of the crimes of obscenity and prostitution as facilitated by the widespread abuse of legitimate occupations such as adult entertainment establishments. 4 This goal is achieved through the Act's extensive disclosure and licensing provisions. Specifically, the statute provides in part for the revocation of the owner's or operator's license if: (1) the licensee intentionally misrepresents or omits to state a material fact required to be filed under Chapter 16; or (2) the licensee is convicted of an enumerated sexual offense, e.g., prostitution, promoting prostitution, sexual assault, sexual misconduct, and rape. 24 Del.C. § 1617. By requiring disclosure as a condition of licensing, the statute operates to preclude individuals with any history of promoting the crimes of obscenity and prostitution from the operation or ownership of adult entertainment establishments. Thus, as expressed in 24 Del.C. § 1601, we conclude that it is the General Assembly's intent to limit enforcement of this statute to those businesses which are likely to facilitate the crimes of obscenity and prostitution.

A literal reading of subsection 1602(2) which includes within the statute's scope a video rental store which rents "sexually oriented" videos is inconsistent with the repeated statutory finding that a relationship exists between the crimes of obscenity and prostitution and "legitimate occupations and establishments" which promote such activities. There is no suggestion in section 1601, nor are we aware of any other legislative declaration, that video rental stores purveying a broad array of movie material present any special problem of safety or law enforcement. Under well settled rules of statutory construction this inconsistency must be resolved in favor of the statute's legislative intent. See Burpulis v. Director of Revenue, 498 A.2d at 1087. Thus, we hold that the phrase "adult entertainment establishment" as used in 24 Del.C. § 1602 does not per se include the Applicants' video rental stores.

The Town argues that the language of subsection 1602(2) is unambiguous and clearly includes a video rental store which rents x-rated videos as a "... business ... which offers sexually oriented materials." Where the statutory text is plain and unambiguous, the argument runs, courts should give it effect without referring to any traditional aids of statutory interpretation. See Chrysler Corp. v. State, Del.Supr., 457 A.2d 345, 349 (1983) (quoting Beck v. Lund's Fisheries,...

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