Blue Canary Corp v. City Milwaukee WI ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2104
Blue Canary Corporation,
Plaintiff-Appellant,
v.
City of Milwaukee,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 934--John W. Reynolds, Judge.
Submitted October 11, 2001--Decided November 7, 2001
Before Flaum, Chief Judge, and Posner and
Evans, Circuit Judges.
Posner, Circuit Judge. Several months
ago we upheld against a challenge based
on the free speech clause of the First
Amendment Milwaukee’s refusal to renew
the plaintiff’s liquor license. 251 F.3d
1121 (7th Cir. 2001). The plaintiff had
bought a tavern in Milwaukee that
entertained its patrons with polkas. The
plaintiff obtained its own liquor license
and shortly afterward changed the name of
the tavern and applied for and received a
"cabaret license," which permits a tavern
to provide entertainment in the form of
dancing by performers. On the application
form the plaintiff’s manager checked
"floor shows" rather than "exotic
dancers/male and/or female strippers,"
and at a hearing on the application she
explained that she wanted to put on "Las
Vegas style" nightclub acts. But instead,
after receiving the cabaret license, the
tavern put on shows in which the
performers danced in only pasties and
bikini bottoms, with some weird touches
such as dancers who sucked on their
breasts while hanging upside down. The
erotic character of the entertainment was
not concealed. One dancer allowed a
customer to slip money between her
breasts. Another acknowledged that she
tried to "turn guys on" in order to get
tips. Others simulated intercourse.
Fearing that the City’s refusal to renew
the tavern’s liquor license would stand--
as indeed it did, as a result of our
previous decision--the plaintiff applied
for a license to use the premises for a
burlesque theater that would provide the
same entertainment described in the
preceding paragraph (and characterized by
the plaintiff itself as "burlesque
dancing which features dancers who are
nude or semi-nude") but without sale of
alcoholic beverages. The City denied the
application on the basis of the provision
of its zoning ordinance governing
proposed land uses that are not listed in
the ordinance. Such a use must conform to
the rules applicable to a "similar" use
that is listed. Milwaukee Code of
Ordinances sec. 295-27. Burlesque
theaters are not a listed use, but are
similar, the City’s zoning commissioner
determined, to "adult motion picture
theater[s]," which are a listed use--and
a use that is banned in the part of
Milwaukee in which the plaintiff’s
premises are located because it abuts a
residential area. Milwaukee Code of
Ordinances sec.sec. 295-14-9, 295-322-
10e. So the application was denied,
precipitating this suit, which claims
that the denial violated the plaintiff’s
right of free speech. The district court
dismissed, precipitating this appeal.
The City has not prohibited the
plaintiff from operating a burlesque
theater, with or without nudity. It has
merely prohibited the operation of such a
theater in proximity to a residential
neighborhood. Milwaukee is a large city
and the plaintiff does not deny that
there are abundant convenient locations
in which the operation of such a theater
would not violate the City’s zoning law.
In these circumstances, as we said in our
previous opinion, "the impairment of
First Amendment values is slight to the
point of being risible, since the
expressive activity involved in the kind
of striptease entertainment provided in a
bar has at best a modest social value and
is anyway not suppressed but merely
shoved off to another part of town, where
it remains easily accessible to anyone
who wants to patronize that kind of
establishment." 251 F.3d at 1124. True, a
theater is not a bar; we remarked that
"liquor and sex are an explosive
combination, so strip joints that sell
liquor are particularly unwelcome in
respectable neighborhoods," id., and this
concern is inapplicable to the proposed
operation of the plaintiff’s premises as
a theater. But the impairment of free
speech is still minimal and is outweighed
by the legitimate social interest in
segregating sex-oriented businesses from
residential land uses. As we noted in our
previous opinion, "countless cases allow
municipalities to zone strip joints,
adult book stores, and like erotic sites
out of residential and the classier
commercial areas of the city or town."
Id. To the cases cited there we now add
David Vincent, Inc. v. Broward County,
200 F.3d 1325, 1333-37 (11th Cir. 2000);
D.H.L. Associates, Inc. v. O’Gorman, 199
F.3d 50, 59-60 (1st Cir. 1999); Buzzetti
v. City of New York, 140 F.3d 134, 140-41
(2d Cir. 1998); Z.J. Gifts D-2, L.L.C. v.
City of Aurora, 136 F.3d 683 (10th Cir.
1998), and Alexander v. City of
Minneapolis, 928 F.2d 278, 282-84 (8th
Cir. 1991).
The plaintiff argues that allowing the
zoning commissioner to determine whether
an unlisted use is "similar" to a listed
one injects an impermissible degree of
discretion into the administration of the
zoning law. And it is true that the case
law expresses concern about arming public
officials with discretion to deny
expressive activities, lest that
discretion be used to suppress unpopular
speech. E.g., City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 757
(1988); Heffron v. International Society
for Krishna Consciousness, Inc., 452 U.S.
640, 649 (1981); MacDonald v. City of
Chicago, 243 F.3d 1021, 1026 (7th Cir.
2001); Steele v. City of Bemidji, 257
F.3d 902, 907 (8th Cir. 2001). But some
degree of discretion is an unavoidable
feature of law enforcement. Ward v. Rock
Against Racism, 491 U.S. 781, 794 (1989).
Legislatures are not omniscient and
cannot be expected to enumerate every
possible land use that might present a
zoning issue. The use of a term such as
"similar" to stop up potential loopholes
is not forbidden by the First Amendment,
cf. Gold Coast Publications, Inc. v.
Corrigan, 42 F.3d 1336, 1348-49 (11th
Cir. 1994) ("equivalent"), at least where
no feasible alternative is suggested. And
there is no reasonable doubt that a
burlesque theater that exhibits
nudedancing is similar to an adult movie
theater. Both are theaters, both present
erotic entertainment, and if anything a
live sex show is more erotic than a
celluloid one.
Affirmed.