Federal judge: Wisconsin town can limit operating hours of adult businesses

Friday, October 23, 1998

The town of Hallie, Wis., may force adult businesses to close during early morning hours, a federal judge ruled recently.

The town passed an ordinance regulating adult-oriented businesses in March after DiMa Corporation opened an adult business named Pure Pleasure, which sells sexually explicit books and magazines and allows its customers to watch sex videos in private viewing booths.

The ordinance requires adult entertainment establishments to close between 2 and 8 a.m. Monday through Friday, 3 and 8 a.m. Saturday, and 3 a.m. and noon on Sunday.

In April, the adult business sued the town in federal court, contending that limiting the hours of operation violated First Amendment freedom of expression rights. In DiMa Corporation v. Town of Hallie, the business contended town officials passed the measure because they disliked the content of the expression found at the store.

Town officials claimed that the law's passage was not based on dislike of the adult business, but on certain harmful secondary effects associated with adult businesses, such as increased crime and sexual diseases.

Town officials relied on the “secondary-effects doctrine” articulated by the U.S. Supreme Court in the 1986 decision City of Renton v. Playtime Theatres, Inc. and in Justice David Souter's concurring opinion in the 1991 case Barnes v. Glen Theatre, Inc.

In Renton, the Supreme Court upheld a zoning ordinance that limited the location of theaters showing adult films. The high court wrote that “the ordinance is not aimed at the content of films shown at the adult motion picture theaters, but rather at the secondary effects of such theaters on the surrounding community.”

In Barnes, the court ruled that an Indiana law prohibiting public nudity could be constitutionally applied to nude dancing clubs. Souter upheld the law because it was designed to prevent harmful secondary effects caused by nudity at adult clubs.

Federal District Judge Barbara Crabb relied on these decisions to uphold the Hallie law limiting hours of operation for adult businesses. Citing Renton, Crabb wrote: “Content-neutral regulations include those that restrict the time, place or manner of expression in order to ameliorate undesirable secondary effects of that expression.”

Crabb ruled that the town had to cross “an easy threshold” in order to show that it had a legitimate interest to pass the law.

Crabb determined that the Supreme Court cases Renton and Barnes allow a town to rely on the secondary-effects rationale as long as it “offers evidence that it could have enacted [the law] for a content-neutral reason.”

Randall Tigue, attorney for the adult bookstore, said: “The court basically ruled that a municipality has to show virtually nothing in order to justify an adult-use ordinance based on the secondary-effects rationale. This is erroneous as a matter of law.

“We showed that there was more crime being committed at a 24-hour restaurant and at two 24-hour convenience stores than at the adult bookstore,” Tigue said. “The reason for this time limitation is simply because the government officials dislike the content of the expression going on at the business.”

However, Joel Aberg, attorney for the town in this litigation, said the judge reached the proper conclusion pursuant to Supreme Court case law.

“The court considered this to be a constitutional time, place and manner restriction,” he said. “The opinion is important because it shows that town officials do not have to have actual evidence of crime occurring during those hours, they just must show that there will be a potential for crime committed during these hours.

“We are not trying to drive this business out of town,” Aberg said. “In fact, this limitation-on-hours of operation provision will not impact the business that much; it will still be profitable. The town went to considerable lengths to ensure that the business' constitutional rights were protected.”

Tigue said he was “not certain” whether the decision would be appealed.