Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 99 C 457--Allen Sharp, Judge.
Before Ripple, Manion, and Kanne, Circuit Judges.
The opinion of the court was delivered by: 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.
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.*fn1 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 ...