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~ - 1 ~. \:'., . ~ flfLltCcy:;,"-ld1J' ~.25P 0 , 5' ---/?1..0( -Lf.L.....~ , ....{j)M~ - 1 v"~ g5 tJJ /;)- ;~/9() . ' , 1 I I Municipal Regulation of 'Ad uIt Entertainment' Businesses I by Curtis A. Wit)'nski Assistant Legal Counsel I The League staff regularly been expressly withdrawn by sec. of the barroom variety performed receives inquires from local officials 66.051 (3), Stats.' as entertainment is a form of ex. I seeking information on ways munic- Section 66.051(3) provides that pression entitled to protection under ipalities can legally regulate "adult municipalities may not adopt or- the first amendment', this does not entertainment businesses. B The term dinances that prohibit conduct mean that municipalities are power- Uadult entertainment business" which is the same as or similar to less to regulate nude dancing in I typically refers to bookstores, theat. conduct prohibited by the state ob- bars. ers, bars and other establishments scenity law. The state obscenity law The U.S. Supreme Court has held where activities such as the sale of defines the terms "obscene materi- on several occasions that state and I . sexually explicit books, magazines al" and uobscene performance" local governments may prohibit and videos or the viewing of sexual. and prohibits various acts relating nude dancing in establishments ly explicit films or live perform. to any obscene material or obscene licensed to sell alcohol beverages ances take place, performance. Sec. 944.21. The state under the broad regulatory powers 1 This Comment discusses six tech- obscenity law was recently held to bestowed upon the states by the niques municipalities may use to be constitutional by the Seventh twenty-first amendment to the U.S. regulate adult entertainment busi- Circuit U.S. Court of Appeals.' Constitution.' The Supreme COUrt nesses. These techniques are as A county, unlike a municipality, has consistently concluded that the 1 follows: is authorized to adopt obscenity or- powers to regulate the sale of alco- (I) prohibiting nude dancing in dinances. Sec. 59.07(64m). hol beverages, conferred upon the bars; With this limitation on municipal Continued on next page I (2) regulating the location of such authority in mind, let's now turn to businesses through zoning; a discussion of six specific ways (3) licensing adult entertainment that municipalities may regulate businesses; adult entertainment businesses. I See Schad ~.. Borough of MI. Ephraim, 425 I (4) restricting their hours of 1. Prohibiting Nude Danci"g in U.S, 61. 101 S.C<. 1176 (1981). where th, operation; Bars - The first regulatory option u.s. Supreme Court held that a municipal (5) adopting health regulations to be discussed, adopting Of- zoning ordin;:mc~ which prohibited aU live 'applicable to such businesses; and dinances prohibiring nude dancing entertainment. including nude dancing. was I (6) using the nuisance abatement in bars, is one which a number of unconstitutionally overbroad, Most recently Wisconsin municipalities have used [he Seventh Circuit U.S. Court of Appe:lls . procedures in ch. 823, Stats., to held that an Indiana public indecency Sla- close adult entertainment businesses to regulate adult entertainment. tute, which on its race provided ror a total I constituting a nuisance. While the courts have consisten;ly ban on nuditr in public places; was uncon- held that non.obscene nude dancing stitutiona] as applied to prohibit nonobscene Obscenit)' nude dancing of the barroom variety. The As a preliminary matter, before coun noted. however, that the state could rely on the twenty-first amendment to ban I discussing the above regulatory op- I Section 66.05[(3) was created by [987 Wis- nude dancing. in bars. Miller v. Civil City of tions, it should be noted that cansin Act 416. effective June Ii, 1988, See South Bend. 904 F,2d 108] OIh Cir. 1990), municipalities in this state have no Powers 01 Municipalities 1822. which .....as . See Califonria ~'. LaRue. 409 U.S, 109 . authority to regulare obscenity. published in {he November 1988 issue of the (1972): Ne'" }'ork Slale Liquor Authority II. Municipal authority to adopt and Munjdpl1lil~'. BelltJllca. 45:: u.s. 714 (1981); City of New. I enforce obscenity ordinances has 1 Kllcharek I', Hanaway. 902 F,:!d 513 (7th porf, Kentllcky v, Jacobl/cei. Per curium. 479 Cir. 1990). U,S.9211986). I 432 the Municipalily December _1990 ----