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~ - . ~. (:'. ~ f}fUcL~Y-jl,,--L~' ~25'P 0 I ~ ~(-UL......~ ' .-(j)M~ -. I ' VL~ SS /lJJ IJ- ;N"I () , , .e . I Municipal Regulation of 'Ad uIt Entertainment' Businesses I by Curtis A. Witynski Assistant Legal Counsel I The League staff regularly been expressly withdrawn by see, of the barroom variety performed receives inquires from local officials 66.051(3), Stats.'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.'~ The term dinances that prohibit conduct mean that municipalities are power- "adult 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 V.S. Supreme Court has held where activities such as the sale of defines the terms "obscene mateti- on several occasions that state and I. sexually explicit books, magazines al" and "obscene performance" local governments may prohibit and videos or the viewing of sexual- and prohibits various acts relating nude dancing in establishments Iy 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 I 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 V.S. regulate adult entertainment busi- Circuit V.S. Coun of Appeals.' Constitution,' The Supreme Court nesses. These techniques are as A county, unlike a municipality, has consistently concluded that the I follows: is authorized to adopt obscenity or- powers to regulate the sale of alco- (l) prohibiting nude dancing in dinances. Sec. 59.07(64m). hol beverages, conferred upon the bars; With this limitation On municipal Continued on next page (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. J See Schad .... Borough of MI. Ephraim, 42S I (4) restricting their hours of 1. Prohibiting Nude Dancing in U,S, 61. 101 5.Ct, 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 or- zoning ordinance which prohibited all live 'applicable to such businesses; and dinances prohibiting nude dancing entertainmenl. 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 the Seventh Circuit U.S. Court of Appellls . procedures in ch. 823, Stats., to held that an Indiana public indecency sta- close adult entertainment businesses to regulate adult entertainment. tute, which on its face provided for a total constituting a nuisance. While the COUrts have consisten,tly ban on nudity in public places; was uncon- I held that non-obscene nude dancing stitulionaJ as applied to prohibit nonobscene Obscenil)' 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 1 discussing the above regulatory op- , Section 66,05 I (J) was created by 1987 Wis- nude dancing: in bars, Miller Y. Civil CifY of tions, it should be noted that consin Act 416, errective June Ii, 1988, See SOUlh Bend. 904 F.2d 108] (7th Cir. ]990). municipalities in this State have no Powers of M/lnicipalilies 1822. which was . See California l'. LaRue, 409 U.S, 109 . authority to regulate obscenity. published in the November 1988 issue of Ihe (1972): Nell' }'ork Sfote LiqrlOr AwhorifY Y. Municipal authority 10 adopt and MuniciplIllly_ Bellanca, 45~ U.S. 7]4 (]981)~ CilY oj New. I enforce obscenity ordinances has : Kucharek l'. Hanaway, 902 F.Zd Si3 (Jth port, Ken/llcky v_ Iacobucci, Pel' curium, 479 Cir. 1990). U.S. 92 (1986). I 432 !he Municipalil}' December 1990 ---