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00-3543Blue Canary Corp. v. City of Milwaukee

By: dmc-admin//June 4, 2001//

00-3543Blue Canary Corp. v. City of Milwaukee

By: dmc-admin//June 4, 2001//

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“Because the standard in the ordinance is compatibility with the ‘normal’ activity of the neighborhood and the City relies heavily on testimony by neighbors to determine what that activity is, the plaintiff asks us to consider the possibility that a straitlaced community might exclude all erotic cultural expression on the ground that any public recognition of sex was abnormal activity in that community – and so Salome’s ‘Dance of the Seven Veils’ (in Wilde’s play or Strauss’s opera), the Afternoon of a Faun, and countless Balanchine ballets could not be performed. But we are dealing in this case with the ordinance not of a small town but of a major city, which is neither homogeneous nor entirely residential, and so the ordinance has not resulted in the exclusion of the erotic even from bars, but merely in the segregation of bars that present erotic entertainment from other land uses in the city. The ordinance is limited, moreover, to bars (and to restaurants that serve liquor). It is not a regulation of theaters or concert halls, but only of places where liquor is served. And the City has not delegated the zoning decision to the neighbors, but merely re lies upon them to inform the City concerning the normal activity of their neighborhoods. The plaintiff was entitled to a hearing on its application to renew its license, Milwaukee Code of Ordinances sec. 90-11, and received one – at which much evidence was presented of the profound incompatibility of a strip joint with the normal activity of the immediate neighborhood, a residential neighborhood whose normal activity is raising kids in a tranquil environment rather than fending off the drunken patrons of a noisy strip joint. So far as appears, the plaintiff could have reopened Runway 94 a few blocks away. The First Amendment would not have been damaged by such a move.”

Affirmed.

00-3543 Blue Canary Corp. v. City of Milwaukee

Appeal from the United States District Court for the Eastern District of Wisconsin, Reynolds, J., Posner, J.

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