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~ - 1/~ I '. , . I made. Although the Dallas or- nesses is [0 restrict their hours of dinances Iypically include th~ f~l- I dinance provided that the chief of operation. lowing requircmcn[S: (I) individual. I police must approve the issuance of Although I could not locate any motion picture viewing booths must i the license within 30 days after Wisconsin cases or 7th Circuit deci- .be without doors and the occupant I I receipt of the application, the sians On this regulatory option, visible, (2) only one person at a- I license would not be issued if the other authorities suggest that time may occupy a viewing booth, I premises were not inspected by the municipalities may adopt ordinances (3) walls separaling booths must be I I health department, fire depanment regulating the hours of operation of free of holes, cracks or other open- and the building inspector. adult entertainment businesses when ings through which persons in ad. ( Since the ordinance did not set a adequate justification for such time joining booths could engage in time limit within which the inspec- restrictions exist (Le., when such sexual activity, (4) each booth must I tions must occur, the Coun found restrictions advance substantial be kept clean and sanitary, and (5) that the Dallas scheme did not pro. governmental interests nOl related minimum lighting requirements vide for an effective limitation on to censorship)." must be maintained, the time within which the licensor's In a fairly recent case the Fifth The couns have consistently up- I decision must be made and there- Circuit U.S. Coun of Appeals up- held the constitutionality of such fore allowed for indefinite post. held the constitutionality of. a City health Or "open booth" regula- ponement of the issuance of the of Biloxi, Mississippi ordinance lions. Recently the 7th Circuit U.S. I license. which restricted the hours of opera- Coun of Appeals upheld an or- Finally, a municipal adult enter- tion of "regulated uses" (e.g. adult dinance designed to cunail anony- tainment licensing scheme must also entertainment businesses) to the mous high-risk sexual activities and provide the opportunity for prompt hours of 10 A.M. to 12 midnight, the spread of AIDS, by regulating I judicial review in the event that the Mondays through Saturdays, and the design and structure of adult license is erroneously denied. City required such regulated uses to re- enterrainment businesses.1O of Dallas, supra. In City of Dallas, main closed on Sundays." The ordinance prohibited parti- the Supreme Coun held Dallas' The court concluded that the or. tions with holes designed to en- I licensing ordinance unconstitutional dinance's time of operation restric- courage sexual activity between for the additional reason that it tions were not in violation of the persons on either side of the parti- failed Hto provide an avenue for first or fourteenth amendments be- tion and required that booths used . prompt judicial reyiew. It 16 cause they furthered a significant for the viewing of motion pictures I In Wisconsin a stature exists community interest (I.e., the welfare have at least one side open to an which provides applicants for of municipal neighborhoods) and adjacent public room so that the in- municipal licenses with the opponu- did not constitute a broad ban on side of the booth remains visible to I nity for prompt judicial review of a the availability of sexually explicit persons in the public area. license denial. Chapter 68, Stats., speech throughout the community. A City of Delafield "open the municipal administrative proce. Municipal officials should be booth" ordinance similar to the one dure act, provides a procedure aware, however, that at least two upheld in Berg was recently found I whereby any person having a sub- state supreme courts have reached constitutional by a federal district stantial interest which is adversely the opposite conclusion and held court. H affected by a municipal administra- that municipal restrictions on the Please turn to page 439 I tive determination, induding the hours of operation of adult enter- granting or deniai of a license, may tainment businesses were uncon- obtain review of the determination. stitutional because the regulations It See Capirol ,Hovies Inc. v. City of Passaic, Persons aggrieved by a municipal did not further a legitimale govern- 194 N.J. Super. 298, 476 A.2d 869 (App. I I administrative determination may mental imerest. It Diy. !984) (ordinance limiting the showing or"X-rated" mo....ies lO the hours of 7:00 initially have the decision reviewed 5. Health or HOpen Booth" P.:>'!. to midnight struck down as unconsdtu- by the decision making officer. em- Regulations - An additional tional where there was no cvidenc-e that there ploye or body. Sec. 68.08 thru method available to municipalities was any legitimate governmental interest I 68.10. Aggrieved persons may then for regulating adult entertainment which might be advanced by the restriction); obtain judicial review of any final businesses is to adopt ordinances People v. Gla:.e. 27 Cal..3d 841. 614 P.2d 291 (J 980) (Los Angeles ordinance requiring municipal administrative determina- which regula,e the physical layout closure of adult motion picture arcad~ be. I tions. Sec. 68.13. of such establishments for health tween 2:00 A.M. and 9:00 A.M. struck down 4. Restricting the Hours of Oper- and sanitation purposes. as unconstitutional since the time restriction alion of Adult Entertainment Busi- Such health and sanilation or- could noe be justified by go....ernment interest nesses - Another way in pre\'enting masturbation or by the lirniled number of polke availabk during that time.) I municipalities might be able to " See P. Rohan. Zoning and Land Use Con. :1 Berg \'. Hf!airh ond Hospiral Corporotion regulate adult emenainment busi- lrol, sec. 11.02(1) (199<l); :"'kQuillin, MUn. of ,\1arian COU11IY, Ind.. 865 F.ld 797 (7th Corp.. sec. 14. I ::J3.15 (Jrd Ed.). Cir. 19891. . " Slar Saul/iff!'. inc. I" City of Biloxi, 779 :' Suburban Fide-D, inc. \'. Ciry of D~/afi~id. I t. Id.. al 606. F.ld 1074 (5th Cir. 1986). 69~ F.Supp 585 (E.D. \\'is, 198B). the Municipalit). December 1990 435 I ~