Pleasureland Museum v. Beutter, Robert C. , 288 F.3d 988 ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3118
Pleasureland Museum, Inc., an Indiana
corporation; Ed Balanow; and Shirlee Balanow,
Plaintiffs-Appellants,
v.
Robert C. Beutter, as Mayor of the City of
Mishawaka, The City of Mishawaka, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99 C 457--Allen Sharp, Judge.
Argued April 2, 2001--Decided May 1, 2002
Before Ripple, Manion, and Kanne, Circuit
Judges.
Kanne, Circuit Judge. The City of
Mishawaka, Indiana enacted an ordinance
designed to regulate sexually-oriented
businesses. Pleasureland Museum, a
sexually-oriented business in Mishawaka,
filed suit under 42 U.S.C. sec. 1983,
alleging that the ordinance violated the
First Amendment, the right to privacy,
the Due Process Clause, and the Equal
Protection Clause. The district court
upheld the ordinance in its entirety. We
affirm in part, reverse in part, and
remand in part.
I. History
For twenty years, plaintiffs Ed and
Shirlee Balanow have operated
Pleasureland Museum as a sexually-
oriented business in Mishawaka, Indiana.
Pleasureland sells and rents adult-
oriented materials and offers its
customers private viewing booths. In
1999, Mishawaka’s common council began
exploring ways to combat what it deemed
the harmful secondary effects associated
with sexually-oriented businesses./1 In
that same year, the council approved
Ordinance No. 44-15 (the "Ordinance"),
which established a licensing and
regulatory system applicable to all
sexually-oriented businesses. Under the
Ordinance’s scheme, all sexually-oriented
businesses operating within the city
limits of Mishawaka are required to
obtain a license and to comply with
numerous regulations.
The preamble to the Ordinance states
that the purpose of the Ordinance is "to
protect the health, welfare, safety,
morals and general welfare of the
citizens of the City" by addressing the
"deleterious effects of sexually-oriented
businesses within the City." Further, the
preamble explains that the Ordinance has
"neither the purpose nor effect of
imposing a limitation or restriction on
the content of any communicative
materials."
Section 125.02(A)(2) defines the
different types of sexually-oriented
businesses subject to the Ordinance and
in relevant part provides:
"Adult Bookstore", "Adult Novelty Store"
or "Adult Video Store" means a commercial
establishment which has as a significant
or substantial portion of its stock-in-
trade or derives a significant or
substantial portion of its revenues or
devotes a significant or substantial
portion of its interior business or
advertising to the sale or rental, for
any form of consideration, of any of the
following:
a. Books, magazines, periodicals or other
printed matter, or photographs, films,
motion pictures, video cassettes, slides,
or other visual representations
[collectively "Media"] which are
characterized by the depiction or
description of "specified sexual
activities" or "specified anatomical
areas";
b. Instruments, devices, or paraphernalia
which are designed for use or marketed
primarily for stimulation of human
genital organs or for sadomasochistic use
or abuse of themselves or others.
c. An establishment may have other
principal business purposes that do not
involve the offering for sale rental or
viewing of materials depicting or
describing "specified sexual activities"
or "specified anatomical areas," and
still be categorized as [an] adult
bookstore . . . .
Section 125.02(P) defines "Specified
Anatomical Areas" as "[l]ess than
completely and opaquely covered
humangenitals, pubic region, buttocks,
anus, or female breasts," and "[h]uman
male genitals in a discernibly turgid
state, even if completely opaquely
covered" (collectively "nudity"). Section
125.02(Q) defines "specified sexual
activities" as:
1. The fondling or other intentional
touching of human genitals, pubic region,
buttocks, anus, or female breasts;
2. Sex acts, normal or perverted, actual
or stimulated, including intercourse,
oral copulation, or sodomy;
3. Masturbation, actual or simulated; or
4. Human genitals in a state of sexual
stimulation, arousal or tumescence;
5. Excretory functions as part of or in
connection with any of the activities set
forth in subdivisions (1) through (4) of
this subsection.
(collectively "sexual activities").
Sections 125.03 though 125.12 outline
the licensing and regulatory scheme
applicable to sexually-oriented
businesses. Section 125.13 explains the
requirements for employee licenses and
Section 125.14 places restrictions on the
exhibition of sexually-explicit films or
videos in video booths and provides in
relevant part:
A. A person who operates or causes to be
operated a sexually oriented business,
other than a sexually oriented
motel/hotel, regardless of whether or not
a permit has been issued to said business
under this Ordinance, which exhibits on
the premises in a viewing room of less
than one hundred fifty (150) square feet
of floor space, a film, video cassette or
other video reproduction which depicts
specified sexual activities or specified
anatomical areas, shall comply with the
following requirements:
1. Upon application for a sexually
oriented business permit, the application
shall be accompanied by a diagram of the
premises showing a plan thereof
specifying the location of one or more
manager’s stations, the location of all
overhead lighting fixtures and
designating any portion of the premises
wherein patrons will not be permitted. A
manager’s station may not exceed thirty-
two (32) square feet of floor area with
no dimension greater than eight (8) feet.
. . . .
4. It is the duty of the owners and
operator of the premises to insure that
at least one employee is on duty and
situated at each manager’s station at all
times that any patron is present inside
the premises.
5. The interior of the premises shall be
configured in such a manner that there is
an unobstructed view from a manager’s
station of every area of the premises to
which any patron is permitted access for
any purpose, excluding restrooms.
Restrooms may not contain video
reproduction equipment. If the premises
have two or more manager’s stations
designated, then the interior of the
premises shall be configured in such a
manner that there is an unobstructed view
of each area of the premises to which any
patron is permitted access for any
purpose from at least one of the
manager’s stations. The view required in
this subsection must be by direct line of
sight from the manager’s station.
6. It shall be the duty of the owners and
operator, and it shall also be the duty
of any agents and employees present on
the premises to insure that the view area
specified in Subsection 5 remains
unobstructed by any doors, walls,
merchandise, display racks or other
materials or person at all times and to
insure that no patron is permitted access
to any area of the premises which has
been designated as an area in which
patrons will not be permitted in the
application filed pursuant to Subsection
A. of this section.
("Open Booth Restrictions"). Section
125.16 restricts the use of advertising,
lighting, and exterior painting by
sexually-oriented businesses ("Signage
and Painting Restrictions"), and Section
125.19 regulates live entertainment./2
Section 125.22 bans the distribution of
sexual devices:
A. It is unlawful for anyone to
distribute, for commercial purposes, sell
or offer for sale any device, instrument
or paraphernalia designed or marketed
primarily for stimulation of human
genital organs or for sadomasochistic use
or abuse of themselves or others.
B. Such devices, instruments or
paraphernalia shall include, but are not
limited to, phallic shaped vibrators,
dildo’s, muzzles, whips, chains, bather
restraints, racks, non-medical enema
kits, body piercing implements (excluding
earrings or other decorative jewelry) or
other tools of sado-masochistic abuse.
Section 125.21 imposes a fine of up to
$2,500 for any violation of the
Ordinance. Finally, Section 125.23
contains a severability clause: "If any
section, subsection or clause of this
Ordinance shall be deemed to be
unconstitutional or otherwise invalid,
the validity with the remaining section,
subsection and clauses shall not be
affected thereby."
Shortly after its enactment, plaintiffs
sued Mishawaka, seeking a permanent
injunction against enforcement of the
Ordinance, damages, and declaratory
judgment. Mishawaka agreed not to enforce
the Ordinance until the district court
reached a decision on summary judgment.
Both parties moved for summary judgment,
and the district court granted
Mishawaka’s motion and entered judgment
in its favor.
On appeal, plaintiffs contend that: (1)
the Ordinance’s definition of regulated
businesses is facially overbroad; (2) the
ban on the sale of sexual devices is
facially void-for-vagueness and overbroad
and violates the right to privacy; (3)
requiring applicants and employees to
provide significant personal information
in order to obtain licenses violates the
First Amendment; (4) the Signage and
Painting Restrictions violate the First
Amendment and the Equal Protection
Clause; (5) the Open Booth Restrictions
violate the First Amendment; and (6) the
judicial review provision is invalid.
A. Standard of Review
We review de novo the question of
whether a state law or municipal
ordinance violates the United States
Constitution. See Gresham v. Peterson,
225 F.3d 899, 903 (7th Cir. 2000).
However, in assessing the
constitutionality of an allegedly vague
or overbroad state law or ordinance, "a
federal court must, of course, consider
any limiting construction that a state
court or enforcement agency has
proffered." Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 n.5, 102 S. Ct. 1186, 71 L. Ed.
2d 362 (1982). In the present case, no
Indiana court has interpreted the
Ordinance, and therefore, we have no
authoritative judicial construction of
the Ordinance’s terms./3 See Gresham,
225 F.3d at 908.
B. Regulated Businesses
Plaintiffs contend that the Ordinance is
impermissibly overbroad because the
definition of regulated Media
incorporates an excessive amount of
protected speech. The Ordinance provides
the following relevant definitions:
"Adult Bookstore", "Adult Novelty Store"
or "Adult Video Store" means a commercial
establishment which has as a significant
or substantial portion of its stock-in-
trade or derives a significant or
substantial portion of its revenues or
devotes a significant or substantial
portion of its interior business or
advertising to the sale or rental, for
any form of consideration, [from:]
a. Books, magazines, periodicals or other
printed matter, or photographs, films,
motion pictures, video cassettes, slides,
or other visual representations
[collectively "Media"] which are
characterized by the depiction or
description of [nudity] or [sexual
activities].
Section 125.02(A)(2).
Although municipalities may regulate
adult bookstores, they may not
impermissibly burden protected speech,
see, e.g., Genusa v. City of Peoria, 619
F.2d 1203, 1210-12 (7th Cir. 1980).
Plaintiffs argue on behalf of third
parties who are deterred from engaging in
protected speech by what plaintiffs
regard as the Ordinance’s substantial
threat of overbreadth. For a facial
overbreadth challenge to be successful,
plaintiffs must establish "a realistic
danger that the statute itself will
significantly compromise recognized First
Amendment protections of parties not
before the Court." City Council of Los
Angeles v. Taxpayers for Vincent, 466
U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed.
2d 772 (1984). Plaintiffs contend that
the Ordinance restricts protected speech
of parties not before the court thereby
establishing a realistic danger of
overbreadth.
Plaintiffs argue that the definition of
regulated Media would bring any magazine
or book within the Ordinance’s scope that
mentions sexual activities or shows
nudity and, thus according to the
plaintiffs, the Ordinance is overbroad.
In determining whether Section
125.02(A)(2) is overbroad, we look at its
plain meaning. See Schultz v. Cumberland,
228 F.3d 831, 849 (7th Cir. 2000). The
Ordinance defines "Adult Bookstore,"
"Adult Novelty Store," and "Adult Video
Store" as commercial establishments that,
inter alia, "derive[ ] a significant or
substantial portion or [their] revenues"
from Media "characterized by the
depiction or description of" nudity or
sexual activities. See Section
125.02(A)(2) (emphasis added).
"Characterized" means "to be a
distinguishing characteristic of," and
"characteristic" means "belonging to . .
. essential nature of ." Webster’s
Third New Int’l Dictionary 376 (1986)
(emphases added). The Ordinance’s plain
language limits its application to Media
of which nudity or sexual activities form
the essential component. Thus, protected
speech remains outside the scope of the
definition, and we reject plaintiffs’
facial overbreadth challenge./4
C. Sexual Devices
Plaintiffs next contend that Section
125.22, which prohibits the sale of
devices "designed or marketed primarily
for stimulation of human genital organs
or for sadomasochistic use or abuse," is
unconstitutionally vague and overbroad,
and also violates fundamental rights
protected by the Fourteenth Amendment. We
conclude that the district court did not
adequately consider these issues, and
accordingly, we remand for the district
court to consider these claims in the
first instance.
Plaintiffs contend that Section 125.22
is unconstitutionally vague under
Kolender v. Lawson, 461 U.S. 352, 358,
103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983),
because it vests complete discretion in
the hands of the enforcement agency and
fails to provide the minimal guidelines
required for due process. Its concerns
about arbitrary enforcement are well-
taken because at oral argument, Mishawaka
asserted that only some types of sexual
devices--such as certain vibrators--were
banned by Section 125.22, but others were
not./5 Moreover, although Mishawaka did
not articulate a difference between the
allegedly prohibited vibrators and the
permissible vibrators, Mishawaka asserted
that it would enforce Section 125.22
against plaintiffs but not against other
vendors of vibrators. Although such
particularized enforcement might be
constitutional, the record lacks any
evidence addressing this issue./6 In
order to determine whether Section 125.22
is unconstitutionally vague, we must
remand for a factual development of the
record addressing the types of sexual
devices banned under Section 125.22 and
the types of sexual devices permitted
under Section 125.22.
Plaintiffs also raise vagueness concerns
because although Section 125.22 bans
sexual devices "designed or marketed
primarily for the stimulation of the
human genital organs," Section 125.22
does not ban sexual devices designed or
marketed primarily for therapeutic use.
We take note that stimulation of human
genital organs forms part of medically-
recognized therapeutic treatment for
female sexual dysfunction. See, e.g., John
P. Wincze & Michael P. Carey, Sexual
Dysfunction: A Guide for Assessment and
Treatment 151 (2d ed. 2001) (recommending
vibratory stimulation as one of three
courses of treatment); Handbook of Sexual
Dysfunctions: Assessment and Treatment 269-73
(William O’Donohue & James H. Geer eds.,
1993) ("Handbook") (listing vibratory use
as necessary step to treat certain cases
of female anorgasmia). In addition, FDA
regulations conclusively establish the
therapeutic and medical value of certain
sexual devices./7 See 21 C.F.R. sec.
884.5940(a) (2001); 21 C.F.R. sec.
884.5960(a) (2001); 21 C.F.R. sec.
884.5960 (1980); see also Williams v.
Pryor, 41 F. Supp. 2d 1257, 1292 n.48
(N.D. Al. 1999), rev’d on other grounds,
240 F.3d 944 (11th Cir. 2001); State v.
Hughes, 792 P.2d 1023, 1025 (Kan. 1990)
(noting use of dildos and vibrators to
treat urinary stress incontinence).
Because certain therapeutic treatments
for sexual dysfunction often necessarily
entail the stimulation of the human
genital organs, see, e.g., Handbook at
269-73, Section 125.22 needs to provide
standards for determining which of those
two uses--stimulation as a part of
therapy or merely stimulation--takes
priority and thus is a sexual device’s
"primary" use. We must remand for due
consideration by the district court
because the record does not contain any
information of whether it is possible to
distinguish a sexual device’s primary use
from its auxiliary uses and the
prevalence of each type of use, and such
information is necessary in order to
properly address this claim.
We also conclude that the district court
did not adequately consider plaintiffs’
fundamental rights challenges. At least
two courts have found a ban on similar
devices unconstitutional because they
intruded upon the fundamental right to
privacy, see Hughes, 792 P.2d at 1032;
People v. Seven Thirty-Five East Colfax,
Inc., 697 P.2d 348, 370 (Colo. 1985), and
the Eleventh Circuit has also raised
similar questions. See Williams, 240 F.3d
at 955-56 (holding that a similar statute
was not facially unconstitutional but re
manding for "as applied" analysis); but
see Kametches v. State, 251 S.E.2d 232,
234 (Ga. 1978) (finding that a ban on
distribution of sexual devices did not
invade privacy of adult or married
couples); Coberly v. State, 640 S.W.2d
428, 430 (Tex. App. 1982) (concluding
that prohibition on promotion of obscene
devices did not violate individual right
to privacy). In the present case, the
district court did not address this issue
specifically, and the record is too
narrow to permit us to decide whether or
to what extent Section 125.22 infringes
upon a fundamental right. Accordingly, we
must remand.
Finally, plaintiffs contend that Section
125.22 is unconstitutionally overbroad
because it bans the sale of
contraceptives in violation of Griswold
v. Connecticut, 381 U.S. 479, 485, 85 S.
Ct. 1678, 14 L. Ed. 2d 510 (1965). As the
district court did not discuss this issue
and the record does not contain any
pertinent details, we remand plaintiffs’
overbreadth challenge to determine
whether Section 125.22 impermissibly
intrudes upon the constitutionally
permissible sale of prophylactics or is
otherwise unconstitutionally overbroad.
Mishawaka suggests that Sewell v.
Georgia, 435 U.S. 982, 98 S. Ct. 1635, 56
L. Ed. 2d 76 (1978) establishes the
constitutionality of Section 125.22. In
Sewell, the United States Supreme Court
dismissed an appeal from the Georgia
Supreme Court for want of a substantial
federal question, see id. at 983, a
disposition that "prevent[s] lower courts
from coming to opposite conclusions on
the precise issues presented and
necessarily decided by those actions" as
applied to "the particular facts
involved." Mandel v. Bradley, 432 U.S.
173, 176, 97 S. Ct. 2238, 53 L. Ed. 2d
199 (1977) (emphases added). The
particular facts of the Georgia statute
at issue in Sewell are materially
different from Section 125.22, see Ga.
Ann. Code sec. 2101(c) (1975), and we
conclude that Sewell is not
controlling./8
D. License Registration Requirements
Relying on Cumberland, plaintiffs next
contend that the Ordinance’s provisions
requiring business applicants to submit a
residential address, recent photograph,
Social Security number, tax
identification number, and driver’s
license information, see sec.sec.
125.03(F)(8)-(10), are unconstitutional
because they serve no legitimate
governmental purpose. See 228 F.3d at 852
(invalidating identical provisions
because only purpose of provisions was
harassment). Plaintiffs also challenge
the employee license requirements of
submitting a residential address and
telephone number, driver’s license
information, Social Security number,
color photograph, and fingerprints
contained in Sections 125.13(B)(4), (6),
(7) & (9) on the same grounds. See id.
Mishawaka responds that these issues are
moot because after the issuance of the
Cumberland opinion, the Council issued a
moratorium ceasing enforcement of these
provisions until the "matter is
resolved."
The general rule is that voluntary
cessation of a challenged practice rarely
moots a federal case, see Friends of
Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 189,
120 S. Ct. 693, 145 L. Ed. 2d 610 (2000),
because "a party should not be able to
evade judicial review, or to defeat a
judgment, by temporarily altering
questionable behavior." See City News &
Novelty, Inc. v. City of Waukesha, 531
U.S. 278, 284 n.1, 121 S. Ct. 743, 148 L.
Ed. 2d 757 (2001) (citations omitted). In
accordance with this principle, the
Supreme Court has announced a stringent
standard for determining whether an issue
has been rendered moot by the defendant’s
voluntary conduct: "A case might become
moot if subsequent events made it
absolutely clear that the allegedly
wrongful behavior could not reasonably be
expected to recur." United States v.
Concentrated Phosphate Export Assn., 393
U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed.
2d 344 (1968) (emphasis added). The party
asserting mootness bears a "heavy burden"
of persuading the court that there is no
reasonable expectation that the
challenged conduct will reappear in the
future. See Friends of the Earth, 528
U.S. at 189.
In City of Los Angeles v. Lyons, 461
U.S. 95, 97-98, 103 S. Ct. 1660, 75 L.
Ed. 2d 675 (1983), the plaintiff sought
to enjoin the LAPD from applying police
chokeholds to detainees. The district
court granted the injunction, the Ninth
Circuit affirmed, and the Supreme Court
granted certiorari. See id. at 98-100.
After the granting of certiorari, the
City of Los Angeles issued a moratorium
on police chokeholds that was to remain
in effect until the City had the
"opportunity to review and evaluate" the
issue. Id. at 100 n.4. The Court held
that the moratorium did not render the
claim moot because the moratorium by its
terms was not permanent. See id. at 101.
In the present case, Mishawaka has not
overcome its "heavy burden" to show that
the matter is moot. Mishawaka has stated
that it will "suspend enforcement" of the
provisions only until the "matter is
resolved." As in Lyons, the Mishawaka
moratorium is not permanent and could be
lifted at any time. Therefore, we turn to
the merits of plaintiffs’ claim.
Prior restraints provide public
officials with the power to deny the use
of a forum in advance of actual
expression. See Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.
Ct. 1239, 1244, 43 L. Ed. 2d 448 (1975).
Any system of prior restraint comes
"bearing a heavy presumption against its
constitutional validity" due to the
danger of censorship. Id. at 558. There
is no question that licensing
registration requirements imposed on
adult bookstore applicants and employees
are prior restraints. See Genusa, 619
F.2d at 1218-19. However, the prior
restraints in this case are
constitutionally legitimate if they are
proper time, place, or manner
restrictions. See Cumberland, 228 F.3d at
851. Proper time, place, or manner
restrictions must be narrowly tailored to
serve a significant government interest
unrelated to the suppression of free
expression and leave open alternative
channels for communication. See Ward v.
Rock Against Racism, 491 U.S. 781, 791-
802, 109 S. Ct. 2746, 105 L. Ed. 2d 661
(1989). In Cumberland, 228 F.3d at 852-
53, the city required any applicant for a
sexually-oriented business license or for
an employee license to provide the
following disclosures: the applicant’s
name; proof of applicant’s age; the type
of license for which the applicant is
applying; the proposed location, address
and description of the business premises;
proof of an employee’s age; required
production of a residential address;
recent color photograph; Social Security
number; fingerprints; tax-identification
number; and driver’s license information
("registration requirements"). The issue
was whether the registration requirements
were narrowly tailored to protect against
the detrimental secondary effects
associated with sexually-oriented
businesses. See id. at 851. We upheld the
following registration requirements: the
applicant’s name; proof of applicant’s
age; the type of license for which the
applicant is applying; the proposed
location, address and descriptions of the
business premises; and identifying
personal data. See id. at 852. We held
that these data enabled the city to
administer and monitor compliance with
its zoning requirements and were,
therefore, constitutional. See id.
Further, we upheld requiring proof of
employee age because it legitimately
related to the government’s interest in
preventing underage employees from
working for such businesses. See id.
However, we invalidated the "required
production of a residential address,
recent color photograph, Social Security
number, fingerprints, tax-identification
number and driver’s license information"
because such information was "redundant
and unnecessary for Cumberland’s stated
purposes . . . [and] serv[ed] no purpose
other than harassment."/9 Id. (citation
omitted).
Plaintiffs in the present case challenge
provisions identical to the registration
requirements invalidated in Cumberland.
Sections 125.03(F)(8)-(10) require a
business applicant to provide its mailing
address and residential address, recent
photograph, Social Security number, tax-
identification number, and driver’s
license information. Sections
125.13(B)(4), (6), (7) & (9) require any
employee of an adult business to supply a
residential address and telephone number,
driver’s license information, Social
Security number, color photograph and
fingerprints. Mishawaka presents no
compelling reason why we should decide
this case differently than the court did
in Cumberland. Therefore, because such
information is "redundant and unnecessary
for [Mishawaka’s] stated purposes . . .
[and] serve[s] no purpose other than
harassment," id. at 852, we invalidate
Sections 125.03(F)(8)-(10) and Sections
125.13(B)(4), (6), (7) & (9) of the
Ordinance.
E. Signage and Painting Restrictions
Plaintiffs next challenge Section
125.16, which regulates the outward
appearance of a sexually-oriented
business. Plaintiffs contend that the
Signage Restrictions in Sections
125.16(D)(1) & (2) and the Painting
Restrictions in Section 125.16(E) violate
the First Amendment./10 Additionally,
Plaintiffs contend that singling out
sexually-oriented businesses for such
restrictions violates the Equal
Protection Clause.
Plaintiffs’ equal protection argument
fails because the Supreme Court has
repeatedly upheld the ability of
municipalities to regulate sexually-
oriented businesses in order to minimize
the secondary effects associated with
such businesses. See, e.g., City of
Renton v. Playtime Theatres, Inc., 475
U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d
29 (1986). With respect to plaintiffs’
First Amendment challenge, because the
Ordinance does not ban all advertising by
sexually-oriented businesses, Section
125.16 is properly analyzed as a time,
place, or manner restriction. Compare 44
Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 500, 116 S. Ct. 1495, 134 L.
Ed. 2d 711 (1996) (holding complete ban
on commercial speech analyzed under
stricter scrutiny rather than as a time,
place, or manner restriction), with
Excalibur Group, Inc. v. City of
Minneapolis, 116 F.3d 1216, 1219-20 (8th
Cir. 1997) (holding that restrictions on
commercial speech analyzed as time,
place, or manner restrictions). Proper
time, place, or manner regulations must
be (1) justified without reference to the
content of the regulated speech, (2)
narrowly tailored to serve a significant
government interest unrelated to the
suppression of free expression, and (3)
leave open alternative channels for
communication. See Ward, 491 U.S. at 791.
A regulation is content-neutral if it is
"justified without reference to the
content of regulated speech." Id.
(citation omitted). Such a regulation is
neutral "even if it has an incidental
effect on some speakers or messages but
not [on] others." Id. The preamble to the
Ordinance, and the studies relied on by
the Council indicate that Mishawaka
enacted the Signage and Painting
Restrictions in order to minimize the
adverse impact of sexually-oriented
businesses on the surrounding area./11
Mishawaka’s purpose of combating
secondary effects that are unrelated to
the content of the restricted speech
renders Section 125.16 a content-neutral
ordinance. See Renton, 475 U.S. at 47-48;
Excalibur, 116 F.3d at 1220.
We next consider whether the Signage
Restrictions in Sections 125.16(D)(1) &
(2) and the Painting Restrictions in
Section 125.16(E), are "narrowly tailored
to serve a significant governmental
interest." Ward, 491 U.S. at 791. There
is no question that minimizing the
secondary effects of sexually-oriented
businesses serves a significant
governmental interest. See, e.g., Renton,
475 U.S. at 50. The issue is therefore
narrowed to whether the Signage
Restrictions in Sections 125.16(D)(1) &
(2) and Painting Restrictions in Section
125.16(E) are themselves narrowly
tailored to serve Mishawaka’s significant
interests.
The Signage Restrictions in Sections
125.16(D)(1) & (2) and the Painting
Restrictions in Section 125.16(E)
arenarrowly tailored if they advance a
substantial interest that would be
achieved less effectively absent the
restrictions, and the restrictions do not
"burden substantially more speech than is
necessary" for such advancement. Ward,
491 U.S. at 799. "Narrow tailoring,"
therefore, does not require the
restrictions to be the least restrictive
means of serving Mishawaka’s content-
neutral interests, and we will not strike
down the restrictions solely because we
can envision a less restrictive or more
effective means of furthering Mishawaka’s
interests. See id. at 799-800.
Mishawaka justifies the Signage and
Painting Restrictions as narrowly
tailored to combat urban blight and to
prevent a decline in the value of
surrounding properties. Mishawaka asserts
that the restrictions are necessary to
minimize the visual impact of the
businesses on the neighborhood by making
the businesses blend into their
surroundings. In SDJ, Inc. v. City of
Houston, 837 F.2d 1268, 1278 (5th Cir.
1988), the Fifth Circuit upheld a font
and color restriction similar to Section
125.16(D)(2) and a Painting Restriction
similar to Section 125.16(E)./12 Such
restrictions were "appropriate in order
to prevent a decline in the values of
surrounding properties, and thus prevent
deterioration of neighborhoods." SDJ, 636
F. Supp. at 1369, aff’d, 837 F.2d at 1278.
We agree with the Fifth Circuit and
therefore hold that Section
125.16(D)(2)’s font and color restriction
and Section 125.16(E)’s Painting
Restriction are appropriate in order "to
prevent a decline in the values of
surrounding properties."/13 SDJ, 636
F. Supp. at 1369, aff’d, 837 F.2d at 1278.
However, we invalidate the Signage
Restriction in Section 125.16(D)(1),
which limits signage to "only the legal
name of the enterprise," because it is
substantially broader than necessary to
achieve Mishawaka’s goals. Mishawaka
fails to articulate a single reason why
it is necessary to limit a sexually-
oriented business’ signage solely to
displaying its name. Under Section
125.16(D)(1), a sexually-oriented
business will not be allowed to notify
the public about what type of store it
operates or what its hours of operation
are. Such a drastic restriction on
signage cannot be sustained without some
sort of evidentiary support. In
Cumberland, 228 F.3d at 853, we struck
several provisions of a licensing scheme
because the city "neither conducted nor
cited any study establishing its basic
premise" that those provisions were
necessary to achieve the desired goal.
Such provisions were substantially more
broad than necessary to combat secondary
effects. See id. As in Cumberland,
Mishawaka cites no study nor provides any
argument showing the Signage Restriction
in Section 125.16(D)(1) to be narrowly
tailored. We invalidate Section
125.16(D)(1) because we conclude that
restricting a business to displaying only
its name "burden[s] substantially more
speech than is necessary to further"
Mishawaka’s goal of combating deleterious
secondary effects such as urban blight
and a decline in property values. Ward,
491 U.S. at 799.
Mishawaka’s reliance on Excalibur and
SDJ for the proposition that Section
125.16(D)(1) is narrowly tailored is
misguided. For instance, while the Eighth
Circuit upheld a challenge to the signage
restrictions in Excalibur, 116 F.3d at
1218-19, the statute at issue there only
addressed the size, shape and location of
the advertising. As opposed to Section
125.16(D)(1), the statutes at issue in
Excalibur and SDJ did not limit signage
to solely displaying the business’ name
as does the Ordinance, cf. 116 F.3d at
1218-25; SDJ, 636 F. Supp. at 1384-85, and
we conclude that such a limitation is
impermissible under Ward. See 491 U.S. at
799 (holding regulation may not burden
more speech than is necessary to advance
government’s interest).
F. Booth Restrictions
Plaintiffs next challenge Section 125.14
of the Ordinance (the "Open Booth
Restrictions"). Plaintiffs acknowledge
that this court has upheld similar "open
booth" restrictions in the past. See,
e.g., Matney v. County of Kenosha, 86
F.3d 692, 700 (7th Cir. 1996). In Matney,
we concluded that a Kenosha ordinance
similar to the Ordinance constituted a
constitutional manner restriction. See
id. at 698. Plaintiffs assert that the
Ordinance is more stringent than
theKenosha ordinance and therefore
violates the First Amendment./14
In Matney, we held that Kenosha’s open
booth restrictions were content-neutral
time, place, or manner restrictions and
served the legitimate governmental
interest of combating the spread of
communicable diseases and promoting safe
and sanitary conditions. See id. at 695-
96. We thus asked whether the Kenosha
open booth restrictions were narrowly
tailored to further that interest. See
id. The plaintiffs contended that there
were alternatives to the Kenosha open
booth requirements that were less speech-
intrusive. See id. at 696. We rejected
that contention, noting that a regulation
need not be the least restrictive or
least intrusive means of achieving the
government’s legitimate, content-neutral
interests. See id. Rather, the Kenosha
open booth restrictions promoted a
substantial government interest that
would be achieved less effectively absent
the restrictions and the restrictions
were not substantially broader than
necessary to achieve that interest. See
id. Further, because the open booth
restrictions left open alternative
channels of communication, we upheld the
Kenosha ordinance in its entirety. See
id. at 697-98.
Plaintiffs concede, as they must, that
the Open Booth Restrictions are content
neutral. The plain language of the
preamble to the Ordinance makes clear
that it was passed for purposes of
"preserv[ing] the health, safety and
welfare" and preventing "the spread of
sexually transmitted diseases." The
Ordinance is aimed at the "secondary
effects" of private viewing booths--the
possible spread of disease and the
creation of unsanitary, unhealthy
conditions--and not at the content of the
films that are shown in the booths. See
id. at 696.
Turning to the second criterion under
Ward, plaintiffs also admit that the Open
Booth Restrictions serve a legitimate
government interest. Fighting the spread
of sexually transmitted diseases and
maintaining safe, sanitary conditions
constitute a significant government
interest. See id. Moreover, Open Booth
Restrictions further that interest.
Plaintiffs contend, however, that the
Ordinance is not narrowly tailored to
serve that interest.
We are satisfied that Mishawaka’s goals
of preventing the spread of disease and
maintaining sanitary and safe conditions
at sexually-oriented businesses "would be
achieved less effectively absent the
[open booth] regulation." Id. In the
present case, plaintiffs make the same
mistake as the plaintiffs in Matney did
by contending that the restrictions are
"not narrowly tailored . . . because they
believe there are less speech-infringing
possibilities." Id. For example,
plaintiffs propose that video cameras or
roaming security guards would accomplish
Mishawaka’s legitimate goals as
effectively as the Open Booth
Restrictions contained in the Ordinance.
While this may be true, the possibility
of less-speech-restrictive alternatives
is, of course, not the proper inquiry
under Ward. See Matney, 86 F.3d at 697.
We thus conclude that the Open Booth
Restrictions are not "substantially
broader than necessary to achieve the
government’s interest." Ward, 491 U.S. at
800.
Moving on to the final Ward factor, we
have repeatedly held that regulations
like the Open Booth Restrictions leave
open ample alternative channels of
communication. See Matney, 86 F.3d at 697
(listing cases). Plaintiffs do not
persuade us to disregard the holding in
Matney. Therefore, we hold that the Open
Booth Restrictions are constitutional
time, place, or manner restrictions.
G. Judicial Review
On appeal, plaintiffs contend that the
licensing requirements are facially
invalid in their entirety because the
Ordinance lacks a provision preserving
the status quo, pending judicial review
of the denial or revocation of an
existing business’s license. See
Southeastern Promotions, 420 U.S. at 560
("[A]ny restraint prior to judicial
review can be imposed only for a
specified brief period and only for the
purpose of preserving the status quo.")
(emphasis added). Plaintiffs concede that
this issue was neither raised before the
district court nor considered by the
district court, and generally, we do "not
address, for the first time on appeal, an
argument which has not been raised at the
trial court level." Diersen v. Chicago
Car Exchange, 110 F.3d 481, 485 (7th Cir.
1997). Although this general rule has
exceptions, invocation of those
exceptions is discretionary. See id. As
stated above, we are remanding the case
in part to allow the district court to
specifically address plaintiffs’ Section
125.22 challenge. Plaintiffs may raise
the matter of facial invalidity at that
time in order to allow the district court
an initial opportunity to address the
issue. Thus, we need not exercise our
discretion at this time.
H. Severability
The severability clause in Section
125.23 of the Ordinance provides that
"[i]f any section, subsection or clause
of this Ordinance shall be deemed to be
unconstitutional or otherwise invalid,
the validity with the remaining section,
subsection and clauses shall not be
affected thereby." However, the
severability clause can save the
constitutionally viable remainder only if
the invalidated elements were not "an
integral part of the statutory enactment
viewed in its entirety." Zbaraz v.
Hartigan, 763 F.2d 1532, 1545 (7th Cir.
1985). We have found the following to be
unconstitutional: several of Section
125.03’s and Section 125.13’s disclosure
requirements, and Section 125.16(D)(1)’s
Signage Restriction. In deference to the
Ordinance’s robust severability clause,
we think that the unconstitutional
provisions of the Ordinance may be
severed workably from the rest of the
provisions. See Cumberland, 228 F.3d at
853-54. Therefore, we permanently enjoin
only the sections we strike as
unconstitutional and permit the operation
of the sections that we either uphold or
that were unchallenged.
III. Conclusion
For the foregoing reasons, the following
provisions of the Ordinance violate the
First Amendment: Sections 125.03(F)(8)-
(10) and Sections 125.13(B)(4), (6), (7)
& (9) (certain registration restrictions)
and Section 125.16(D)(1) (Signage
Restriction). The following provisions of
the Ordinance are constitutional: Section
125.02(A)(2) (definition), Section
125.16(D)(2) (Signage Restriction),
Section 125.16(E) (Painting Restriction),
and Section 125.14 (Open Booth
Restrictions). We conclude that
plaintiffs’ challenges to Section 125.22
and to the judicial review provisions
must be considered further by the
district court. We order the invalidated
provisions severed from the remainder of
the Ordinance but offer no opinion
regarding other provisions of the
Ordinance that we did not address.
Therefore, we AFFIRM in part and REVERSE in
part the judgment of the district court
and REMAND for proceedings consistent with
this opinion.
FOOTNOTES
/1 After considering several studies concerning the
deleterious secondary effects of sexually-orient-
ed businesses, the council believed that sexual-
ly-oriented businesses increased crime and urban
blight, decreased property values, and contribut-
ed to the spread of sexually transmitted and
communicable diseases.
/2 No business in Mishawaka currently offers adult-
oriented live entertainment.
/3 Mishawaka asserts that the Council issued an
authoritative limiting construction. However, it
is the duty of the state judiciary, not of the
state executive or legislative branches, to
authoritatively interpret state laws. See, e.g.,
United States v. 12 200-Ft. Reels of Super 8mm.
Film, 413 U.S. 123, 131 n.7, 93 S. Ct. 2665, 37
L. Ed. 2d 500 (1973) ("[W]e must leave to state
courts the construction of state legislation.")
(emphasis added).
/4 Plaintiffs’ remaining overbreadth arguments are
meritless and do not warrant discussion. See
Young v. American Mini Theatres, Inc., 427 U.S.
50, 53 n.5, 96 S. Ct. 2440, 49 L. Ed. 2d 310
(1976) (upholding similar "significant or sub-
stantial portion of its stock-in-trade" clause);
City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 44, 106 S. Ct. 925, 89 L. Ed. 2d 29
(1986) (upholding similar "principle business
purpose" clause).
/5 Mishawaka asserted that vibrators sold by plain-
tiffs were banned but vibrators sold at a local
pharmacy were not banned.
/6 For example, the record does not explain the
types of vibrators, dildos, and other sexual
devices sold by plaintiffs that Mishawaka argues
are banned by Section 125.22. Similarly, the
record does not indicate the types of vibrators,
dildos, and sexual devices that Mishawaka claims
would not be banned by Section 125.22.
/7 Mishawaka does not dispute that many sexual
devices have medical or therapeutic uses.
/8 The Eleventh Circuit reached a similar conclusion
in Williams, 240 F.3d at 954 n.6.
/9 We also found the Cumberland ordinance’s disqual-
ification provisions to be unconstitutional, see
id. at 853, and we note that the Ordinance has
quite similar disqualification provisions. See
Sections 125.05(C)(j), 125.13(B)(12)(c). Plain-
tiffs, however, concede that they do not have
standing to challenge the disqualification provi-
sions, so we do not rule on the matter at this
time.
/10 Section 125.16(D)(1) provides that "[s]ignage
shall contain no photographs, silhouettes, draw-
ings or pictorial representations in any manner,
and may contain only the legal name of the
enterprise." Section 125.16(D)(2) provides that
"[e]ach letter forming a word on a primary sign
shall be of solid color, and each such letter
shall be the same print-type, size, and color.
The background behind such lettering on the
display surface of a primary sign shall be of a
uniform and solid color." Section 125.16(E)
provides in relevant part that "[i]t shall be
unlawful for the owner or operator of a sexually-
oriented business . . . to allow the exterior
portions of the establishment to be painted any
color other than a single achromatic color."
/11 The preamble states that "it is not the intent of
this ordinance to suppress any speech activities
protected by the First Amendment . . . but to
enact a content-neutral ordinance that addresses
the adverse secondary effects of sexually orient-
ed businesses."
/12 The statute at issue in SDJ is printed in its
entirety in the district court’s opinion in that
case. SDJ, Inc. v. City of Houston, 636 F. Supp.
1359, 1384-85 (S.D. Tex. 1986) (quoting relevant
portions).
/13 Plaintiffs concede that Sections 125.16(D)(2) &
(E) leave open alternative avenues of communica-
tion as required by Ward.
/14 Specifically, plaintiffs contend that the Ordi-
nance is not narrowly tailored because it re-
quires that: (a) the manager’s station not exceed
32 square feet of floor space; (b) an employee be
present at the manager’s station at all times
that any patron is present; (c) the manager’s
station have a view of every patron area exclud-
ing restrooms; and (d) said view be unobstructed.
Cf. id. at 694-95 (lacking similar restrictions).