Schultz v. City of Cumberland
| Decision Date | 05 November 1998 |
| Docket Number | No. 98-C-0107-C.,98-C-0107-C. |
| Parties | Joseph SCHULTZ, d/b/a Island Bar, and Tonya Norwood, Plaintiffs, v. THE CITY OF CUMBERLAND, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
Randall D.B. Tigue, Minneapolis MN, for Plaintiffs.
Brady C. Williamson, Lafollette & Sinykin, Madison WI, for Defendant.
In this civil action for declaratory and injunctive relief, plaintiffs challenge a municipal ordinance enacted by defendant City of Cumberland that establishes a comprehensive licensing and regulatory scheme for all "sexually oriented businesses." Among other things, the ordinance prohibits the depiction of "specified sexual activities" in a sexually oriented business and it bars anyone from appearing in a state of nudity in such a business. Also, the ordinance limits the hours that sexually oriented businesses may operate and prohibits anyone from operating or working in such a business without a valid license. Plaintiff Joseph Schultz is the sole proprietor of the Island Bar, an establishment located in the City of Cumberland that features live dancers, including plaintiff Tonya Norwood, who perform in a state of total nudity. Plaintiffs contend that numerous aspects of the ordinance violate their right to free speech or are unconstitutionally overbroad. Plaintiffs ask the court to declare the ordinance invalid and to enjoin defendant permanently from enforcing it. Defendant maintains that the ordinance is a content-neutral time, place and manner restriction designed to further defendant's substantial interest in reducing undesirable secondary effects associated with sexually oriented businesses.
The case is before this court on plaintiffs' motion for summary judgment and plaintiffs' motion to strike certain affidavits submitted by defendant. I conclude that by prohibiting the depiction of specified sexual activities and by prohibiting anyone from appearing in a state of nudity, the ordinance is unconstitutionally overbroad. These prohibitions could be applied just as easily to the Island Bar as they could to a commercial establishment featuring mainstream motion pictures or plays of unquestioned artistic merit in which there is a naked female breast or the depiction of two individuals engaging in sexual intercourse. Despite this potential, defendant has presented no evidence suggesting that prostitution, urban blight or other harmful secondary effects are associated with non-adult cinemas and theaters. I find also that the disclosure requirements for individuals applying for a license to work in a sexually oriented business are unconstitutional. These requirements are not narrowly tailored to serve defendant's interest in insuring that employees of sexually oriented businesses refrain from engaging in criminal activity; the ordinance does not contain adequate measures to protect the confidentiality of personal information disclosed by applicants. Finally, provisions in the ordinance that make obtaining a license to operate a sexually oriented business contingent upon passing a building inspection and being current on all taxes are not justified by any evidence. In all other respects, the ordinance withstands scrutiny. However, because the unconstitutionally overbroad provision cannot be severed from the ordinance or rewritten by the court, the ordinance as a whole will be declared unenforceable. Plaintiffs are entitled to summary judgment. Plaintiffs' motion to strike will be denied.
On a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir.1997). For the purpose of deciding this motion for summary judgment, I find from the parties' proposed findings of fact that there is no genuine dispute with respect to the following material facts.
Plaintiff Joseph Schultz is proprietor of the Island Bar, located in Cumberland, Wisconsin. Plaintiff Tonya Norwood is employed at the Island Bar as an exotic dancer. Defendant City of Cumberland is a municipal corporation organized under the laws of the state of Wisconsin.
In 1994, defendant enacted an ordinance regulating nude dancing in establishments that serve alcohol on their premises. Plaintiff Schultz challenged the ordinance unsuccessfully. On October 12, 1994, the city revoked the Island Bar's liquor license after determining that improper sexual activity had occurred on the premises. Presently, the Island Bar features the sale of nonalcoholic beverages and live nude entertainment.
In 1997, the mayor of Cumberland, Lawrence Samlaska, learned about communities that were enacting ordinances to regulate sexually oriented businesses. In May 1997, the mayor directed the city planning commission to consider zoning aspects of such ordinances and to establish a subcommittee to coordinate the process of accumulating, disseminating and analyzing data relevant for drafting such an ordinance. The subcommittee convened its first meeting on July 2, 1997; it met ten times between July 1997 and January 1998. The subcommittee delegated specific areas of research and inquiry to individual committee members.
From the outset, the subcommittee relied on a model ordinance created by the National Family Legal Foundation. According to its mission statement, the foundation is dedicated to providing legal assistance and educational resources to communities interested in combating negative secondary effects associated with sexually oriented businesses. Also, subcommittee members reviewed similar ordinances enacted by other communities in Wisconsin and Minnesota. Some of these ordinances dealt solely with zoning, others only with licensing and still others incorporated both zoning and licensing characteristics. Subcommittee member Carolyn Burns spoke with the city attorneys in these communities and, in some instances, with others familiar with the problems associated with sexually oriented businesses. Burns told the rest of the subcommittee what she had learned from these conversations and from her review of two books: Local Regulation of Adult Businesses, by Jules Gerard, a professor of law at Washington University; and Protecting Communities from Sexually Oriented Businesses, by Len Munsil, a lawyer.
Mayor Samlaska provided information to the planning commission and subcommittee. He told these bodies about undercover police surveillance that had taken place at the Island Bar and had resulted in arrests and convictions for prostitution, underage drinking, disorderly conduct and theft. Surveillance films depicted employees having intimate physical contact and sexual relations with patrons.
Subcommittee member Jeffrey Streeter researched zoning and licensing issues. With respect to establishing an appropriate license fee, he considered estimated costs associated with processing an application and conducting background checks, ongoing records maintenance, estimated enforcement costs and license fees applicable to other types of businesses. For example, the fee for a liquor license is $500. Streeter and the subcommittee determined that a $100 application fee was necessary, in part, to cover investigation costs. On the basis of defendant's experiences with establishments licensed to sell liquor, the subcommittee determined that $400 was necessary to defray enforcement costs. The $25 fee for employee licenses was necessary to cover administration costs, records maintenance and issuing identification cards.
Subcommittee member Richard Nerbun researched health-related findings listed in the ordinance. He did so by culling statistics from publications issued by the Centers for Disease Control. For the most part, Nerbun focused on statistics related to sexually transmitted diseases. In addition, Nerbun researched the ordinance's hours of operation provision. He considered matters related to sexual assault and molestation of children and law enforcement response time on weekends. On several occasions, the subcommittee discussed police staffing concerns and how these concerns should play into the hours of operation provision. Specifically, subcommittee members recognized that there is only one police officer on duty Sunday through Thursday. During this period, citizens must rely on the county sheriff's office for law enforcement, which can result in a longer response time.
On December 10, 1997, the subcommittee sent a draft of the ordinance to the planning commission. Following a public hearing, all seven members of the planning commission voted unanimously to recommend adoption of the ordinance by the city council. On January 6, 1998, the city council conducted a public hearing. Following review and discussion, the city council voted unanimously, with all members present, to enact the ordinance. No other licensed businesses in the City of Cumberland are subject to the licensing, inspection, disclosure and disqualification requirements that apply to sexually oriented businesses.
Plaintiff Norwood and other dancers at the Island Bar perform in a state of nudity, as defined in the ordinance. She uses a stage name to prevent customers from learning her true name or her home address. Plaintiff Norwood is afraid that a customer would be able to obtain personal information about her from licensing records kept by defendant pursuant to the ordinance. In the event that the ordinance is enforced, Norwood will not apply for a license in order to continue working for the Island Bar. Instead, she will practice her profession as an exotic dancer elsewhere.
OPINIONDefendant's ordinance regulates so-called "sexually oriented...
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