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Mitchell v. Commission on Adult Entertainment

November 24, 1993.


Appeal from the United States District Court for the District of Delaware. D.C. Civil Action No. 91-00436.

Present: Stapleton, Mansmann and Hutchinson, Circuit Judges.

Author: Hutchinson


HUTCHINSON, Circuit Judge.

Appellants Francis R. Mitchell ("Mitchell") and Bob's Discount Adult Books, Inc. (collectively "Adult Books") appeal an order of the United States District Court for the District of Delaware granting summary judgment in favor of appellees, Delaware's Attorney General Charles M. Oberly, III, the Secretary of its Department of Health and Social Services, and the Commissioners of Delaware's Commission on Adult Entertainment Establishments (collectively "the Commission"). Adult Books claims that the 1991 amendments to the Delaware Adult Entertainment Establishments Act ("the Act"), Del Code Ann. tit. 24, §§ 1601-1635 (1987 & Supp. 1992) are unconstitutional restrictions of speech protected by the First Amendment.*fn1 The 1991 amendments limit the hours during which adult entertainment establishments can be open and require such establishments to eliminate all closed booths from which patrons could view live and video entertainment in seclusion. The district court held that these amendments were constitutional content-neutral, time, place, and manner regulations. We will affirm.*fn2

I. Factual and Procedural History


Adult Books is a Delaware corporation which owns and operates an adult entertainment establishment at 174 South DuPont Highway in New Castle, Delaware. Mitchell is an officer, director, and the principal stockholder of Adult Books.

Adult Books' entertainment facility is located on the northbound side of South Dupont Highway, an eight-lane highway with a four foot concrete barrier dividing the northbound and southbound lanes. Zoning laws limit Adult Books' property, as well as contiguous properties within two miles in either direction on the northbound side, to commercial use. Nearby are a Delaware State Police Barracks and a gasoline station. Directly across the highway from Adult Books is Midvale, a residential community. None of the Midvale residences front on South Dupont Highway, but some of them share their rear lot lines with the highway's southbound right-of-way line. No paths or walkways connect the northbound and southbound lanes of the divided highway.

Since March 1976, Adult Books has sold books, magazines, films, and novelties of an adult nature at retail and provided adult films and video presentations for viewing from within completely enclosed booths. It also provided enclosed booths for viewing live entertainment between March 1976 and December 1985, and again during the first half of 1991.

In 1977, the Delaware General Assembly adopted the Adult Entertainment Establishments Act. The Act defined "adult entertainment establishments" subject to the Act, imposed a requirement that persons who engage in the operation of such establishments first obtain a license and comply with certain other provisions, and established the Commission on Adult Entertainment Establishments to oversee compliance. The Act also provided criminal penalties for those who operate an adult entertainment establishment without a license or in contravention of the requirements of the Act. The Act defines "adult entertainment establishment" as:

any commercial establishment, business or service, or portion thereof, which offers sexually oriented material, devices, paraphernalia or specific sexual activities, services, performances or any combination thereof, or in any other form, whether printed, filmed, recorded or live. . . .

Del. Code. Ann. tit. 24, § 1602(2) (Supp. 1992). The Act further provides that the term "adult entertainment establishment" shall include, but not be limited to, adult book stores, conversation parlors, adult shows or adult peep shows, adult motion picture theatres, and massage establishments. Id. Adult Books does not dispute the Act's application to its business; it has been properly licensed since the effective date of the Act.

This Court has previously upheld the constitutionality of the Act as originally enacted. See Mitchell v. Commission on Adult Entertainment Est. ("Mitchell I "), 810 F.2d 1164 (3d Cir. Jan. 30, reported as table case at 810 F.2d 1164 (not-for-publication op.). In Mitchell I we applied the test the Supreme Court set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986), and held that "the licensing statute is content-neutral, since it aims not at the content of adult entertainment, but at the secondary effects associated with it, i.e., the commission of various sex-related crimes. In attempting to curb these secondary effects, the Act serves the government's substantial interest in 'the health, safety and welfare of the people of the State.'" Mitchell I, slip op. at 8-9.

On June 5, 1991, the Delaware General Assembly enacted Senate Bill No. 163 (the "closing-hours amendment") which added to § 1625 of the Act a subsection restricting the operating hours of adult entertainment establishments to the hours between 10:00 a.m. and 10:00 p.m. Monday through Saturday and requiring them to remain closed on all Sundays and legal holidays. The Delaware General Assembly also enacted Senate Bill No. 164 (the "open-booth amendment") which amended the Act by adding § 1633(b). Section 1633(b) prohibits booths used for the viewing of motion pictures or other forms of entertainment in adult entertainment establishments from having doors unless one side is open to an adjacent public room so that the area inside is visible to persons in that adjacent room.*fn3

Before enactment of the 1991 amendments, Adult Books served about 200-500 patrons per day. Its business hours were typically from 10:00 a.m. until 3:00 a.m. on Monday through Saturday, and from 10:00 a.m. until 2:00 a.m. on Sunday. On Christmas Eve it closed at 6:00 p.m. and remained closed until 10:00 a.m. on the day after Christmas. It also closed at 6:00 p.m. on New Year's Eve. According to Mitchell, it was busiest on weekends and holidays. On any given day, patronage became heavier after the end of the work day and steadily increased through the early morning hours. On a number of occasions, Adult Books had to ask patrons to leave at the 3:00 a.m. closing time. There has been only one criminal complaint or recorded incident about a patron's conduct outside Adult Books' business premises. In it, one patron complained that another had assaulted him in the parking lot and stolen his wallet.

Before the 1991 amendments, Adult Books offered both live and video performances for viewing from enclosed booths. A patron who wanted to use the booth deposited tokens to gain access. Each booth had a door that let the patron screen out unwanted light, noise, and other distractions and afforded privacy to those who would otherwise be too ashamed or inhibited to view a sexually explicit performance while others watched or observed.

Since enactment of the 1991 Amendments, Adult Books has limited its hours of operation and has removed the doors of its booths to comply with the Act. Based upon a comparison of revenues, Adult Books estimates that these two new restrictions have caused patronage to decrease to one-third or one-fourth its previous level. Mitchell and Adult Books did not produce any cash receipt entries for January through December 1991 in support of the alleged decrease in patronage. In response to the Commission's amended request for production of documents, Mitchell stated that he maintains no token counts for individual booths, nor any daily cash worksheets showing token counts for the booths.

The express purpose of the open-booth amendment was to prevent high-risk sexual contact. Adult Books therefore asked the Commission to rule that booths equipped with doors that would conceal a patron's head, arms and torso but expose his legs would comply with the new open-booth requirement. According to Adult Books, this kind of a door would serve the purpose of the open-booth amendment by revealing whether more than one person was in the booth and still meet the viewer's desire for privacy. The Secretary of the Delaware Health and Social Services Department notified Adult Books, by letter dated August 12, 1991, that "'Dutch doors,' saloon style swinging doors, and doors with a 24-inch plexiglass panel at the bottom are not 'open to an adjacent public room,'" as the text of the open-booth amendment requires. Appellants' Appendix ("App.") at 249-50.


Adult Books filed a claim under 42 U.S.C.A. § 1983 (West 1981) seeking a declaratory judgment that both the closing- hours and the open-booth amendments were unconstitutional. It also sought a temporary restraining order ("TRO") and a preliminary injunction against their enforcement.

The district court denied Adult Books' application for a TRO, holding that it was unlikely to succeed on the merits. Adult Books then withdrew its motion for a preliminary injunction. Later, Adult Books amended its complaint to add the Delaware Department of Health and Social Services as a defendant, alleging that the Department was the state agency with authority to enforce the Act. Both Adult Books and the Commission moved for summary judgment.

On August 27, 1992, the district court granted the Commission's motion for summary judgment holding that both the closing-hours and open-booth requirements were constitutional. Mitchell v. Commissioners of Comm'n on Adult Entertainment Est., 802 F. Supp. 1112, 1126 (D. Del. 1992) ("Mitchell II "). On September 17, 1992, Mitchell and Adult Books filed a timely notice of appeal.

II. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction over Adult Books' action alleging violations of 42 U.S.C.A. § 1983 (West 1981) and the First and Fourteenth Amendments to the United States Constitution under 28 U.S.C.A. §§ 1331 and 1343(a)(3), (4) (West 1993). We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West 1993) over Adult Books' timely appeal from the final decision of the district court granting summary judgment in favor of the Commission.

A district court's grant of summary judgment is subject to plenary review. Public Interest Research of N.J. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991).

III. Overview of First Amendment Jurisprudence

The United States Supreme Court has afforded First Amendment protection to sexually explicit non-obscene*fn4 films, live presentations, and printed matter. See, e.g., Barnes v. Glen Theatre, Inc., 115 L. Ed. 2d 504, 111 S. Ct. 2456, 2463 (1991) (live nude dancing in adult bookstore and nightclub); Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (live nude dancer in adult book store); Erznoznik v. City of Jacksonville, 422 U.S. 205, 211-12, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975) (motion pictures portraying nudity); Kois v. Wisconsin, 408 U.S. 229, 231-32, 33 L. Ed. 2d 312, 92 S. Ct. 2245 (1972) (sexually explicit poetry). In Barnes, however, a plurality of the Supreme Court concluded that the First Amendment's guarantee of free expression only "marginally" protects nude dancing. Barnes, 111 S. Ct. at 2460, 2463. In a case challenging a local zoning ordinance that required adult theatres to be dispersed and not concentrated in limited zones, the Court has also stated:

Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment.*fn5

Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976) (footnote added). In Young, a plurality of the Supreme Court held that even though such sexually explicit films are protected from total suppression, "the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures." 427 U.S. at 70-71. "Even within the area of protected speech, a difference in content may require a different governmental response." Id. at 66. Thus, the Supreme Court has indicated that some sexually explicit material may be only marginally protected.

Nevertheless, if the regulation of sexually explicit materials is aimed primarily at suppression of First Amendment rights, then it is thought to be content-based and so presumptively violates the First Amendment. See Renton, 475 U.S. at 46-48. But if the regulation's predominate purpose is the amelioration of socially adverse secondary effects of speech-related activity, the regulation is content-neutral and the court must measure it against the traditional content-neutral time, place, and manner standard. See Barnes, 111 S. Ct. at 2460; Renton, 475 U.S. at 46-48; Young, 427 U.S. at 70-72. Under Renton, reasonable time, place, and manner regulations of protected speech are valid if: (1) they are justified without reference to the content of the regulated speech; (2) they are narrowly tailored to serve a significant or substantial government interest;*fn6 and (3) they leave open ample alternative channels of communication.*fn7 Renton, 475 U.S. at 47-48; see also Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 2753, 105 L. Ed. 2d 661 (1989); Young, 427 U.S. at 63 n.18. As the amendments are directed at curbing the side effects of Adult Books' speech-related activity, we Judge this case under Renton, as did the district court, and will separately analyze both the closing-hours amendment and the open-booth amendment under its three-part test, considering first the closing-hours amendment.

IV. Closing-Hours Requirement - § 1625(b)

The Act provides:

ยง 1625. Rules and prohibitions ...

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