No. 99-1680 

IN THE 

Supreme Court of the United States 

CITY NEWS AND NOVELTY, INC., 

Petitioner, 

v. 

CITY OF WAUKESHA, WISCONSIN, 

Respondent. 

On Writ of Certiorari 
to the Court of Appeals of Wisconsin 

BRIEF FOR RESPONDENT 

CURT R. MEITZ 
VINCENT D. MOSCHELLA 
MILES W.B. EASTMAN 
OFFICE OF THE CITY ATTORNEY 
City of Waukesha 
201 Delafield St. 

Waukesha, WI 53188 
(262) 524-3520 
THOMAS C. GOLDSTEIN 
(Counsel of Record) 
AMY HOWE 
THOMAS C. GOLDSTEIN, P.C. 
4607 Asbury Pl., N.W. 
Washington, DC 20016 
(202) 237-7543 

Counsel for Respondent 

October 26, 2000 

QUESTION PRESENTED 

Is a licensing scheme which acts as a prior restraint re- 
quired to contain explicit language which prevents injury to a 
speaker’s rights from want of a prompt judicial decision? 

ii 

TABLE OF CONTENTS 

Pages 

QUESTION PRESENTED...................................................... i 

TABLE OF CONTENTS........................................................ ii 

TABLE OF AUTHORITIES ................................................. iv 

BRIEF FOR RESPONDENT ................................................. 1 

OPINIONS BELOW............................................................... 1 

JURISDICTION AND SUGGESTION OF MOOTNESS..... 1 

CONSTITUTIONAL AND .................................................... 5 

STATUTORY PROVISIONS INVOLVED .......................... 5 

STATEMENT......................................................................... 6 

I. WAUKESHA’S ADULT BUSINESS LICENSING SCHEME...... 6 

II. THE NONRENEWAL OF PETITIONER’S LICENSE............... 9 

1. PETITIONER’S VIOLATIONS OF THE ORDI- 
NANCE.....................................................................9 

2. THE ADMINISTRATIVE PROCEEDINGS. ....................10 

3. THE CIRCUIT COURT PROCEEDINGS. .......................12 

4. THE APPELLATE PROCEEDINGS..............................13 

5. THIS COURT’S ORDER GRANTING CER- 
TIORARI.................................................................16 

SUMMARY OF ARGUMENT............................................ 17 

ARGUMENT........................................................................ 19 

I. PETITIONER’S PRINCIPAL ARGUMENT, IN WHICH IT 
CHALLENGES THE TIMING OF ADMINISTRATIVE 
DECISIONMAKING UNDER A WISCONSIN STATE 

iii 

STATUTE, IS BOTH WRONG AND IRRELEVANT TO 
THE QUESTION PRESENTED. ........................................ 19 

1. THE FIXED ADMINISTRATIVE TIME LIMITS 

SATISFY THE FIRST AMENDMENT..........................19 

2. PETITIONER’S ARGUMENT IS OUTSIDE THE 

SCOPE OF THE QUESTION PRESENTED. ...................20 

II. WAUKESHA MAKES PROMPT JUDICIAL REVIEW 
AVAILABLE TO APPLICANTS FOR ADULT-BUSINESS 
LICENSES. .................................................................... 24 

1. THE PROMPT JUDICIAL DETERMINATION 

REQUIREMENT APPLIES TO CONTENT-BASED 

CENSORSHIP SCHEMES, NOT CONTENT- 
NEUTRAL LICENSING ORDINANCES. .......................25 

2. THE TWO CONCERNS UNDERLYING THE 

“PROMPT JUDICIAL DETERMINATION” RE- 
QUIREMENT ARE INAPPOSITE HERE........................28 

a. Self-censorship.............................................. 29 

b. Judicial expertise........................................... 32 

3. PETITIONER’S REMAINING ARGUMENTS ARE 

UNAVAILING. ........................................................39 

4. ACCEPTING PETITIONER’S ARGUMENT 

WOULD CAUSE SUBSTANTIAL, UNWAR- 
RANTED HARM TO IMPORTANT MUNICIPAL 

AND JUDICIAL INTERESTS. .....................................40 

CONCLUSION..................................................................... 44 

iv 

TABLE OF AUTHORITIES 

Pages 

Cases 

Arcara v. Cloud Books, 478 U.S. 697 (1986)................. 32, 38 

ASARCO v. Kadish, 490 U.S. 605 (1989) .............................. 5 

Barnes v. Glen Theatre, 501 U.S. 560 (1991) ................ 32, 33 

Blount v. Rizzi, 400 U.S. 410 (1971) .............................. 24, 26 

Brownlow v. Schwartz, 261 U.S. 216 (1923).......................... 4 

Burch v. American Family Mut. Ins. Co., 543 N.W.2d 
277 (Wis. 1996) .................................................................. 3 

California v. Grace Brethren Church, 457 U.S. 393 
(1982)................................................................................ 41 

Cantwell v. Connecticut, 310 U.S. 296 (1940)..................... 35 

Chevron U.S.A. v. NRDC, 437 U.S. 837 (1984)................... 35 

City News & Novelty, Inc. v. City of Waukesha, 487 

N.W.2d 316 (Wis. Ct. App. 1992).................................... 36 

City of Erie v. Pap’s A. M., 120 S. Ct. 1382 (2000) ....... 32, 34 

City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) .... 32 

County of Kenosha v. C & S Management, 588 N.W.2d 
236 (Wis. 1999) ................................................................ 13 

Diffenderfer v. Central Baptist Church of Miami, Fla., 
404 U.S. 412 (1972) (per curiam)................................. 5, 18 

Elrod v. Burns, 427 U.S. 347, 372 (1976). ........................... 29 

Fort Wayne Books v. Indiana, 489 U.S. 46 (1989) .............. 24 

Freedman v. Maryland, 380 U.S. 51 (1965) ................. passim 

Fusari v. Steinberg, 419 U.S. 379 (1975)............................. 18 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ... passim 

Golden v. Zwickler, 394 U.S. 103 (1969)............................... 3 

v 

Graff v. City of Chicago, 9 F.3d 1309 (CA7 1993) (en 
banc)...................................................................... 31, 33, 41 

Hall v. Beals, 396 U.S. 45 (1969)........................................... 6 

Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67 (1983) 
(per curiam)......................................................................... 3 

Kmiec v. Town of Spider Lake, 211 N.W.2d 471 (Wis. 
1973) ................................................................................. 36 

Lawrence v. Chater, 516 U.S. 163 (1996) (per curiam) ....... 18 

Members of City Council of Los Angeles v. Taxpayers 
for Vincent, 466 U.S. 789 (1984)........................................ 4 

Murphy v. Hunt, 455 U.S. 478 (1982) (per curiam) ............... 4 

NCAA v. Smith, 525 U.S. 459 (1999) ................................... 20 

New York v. P.J. Video, 475 U.S. 868 (1986) ...................... 24 

Northern States Power Co. v. Bugher, 525 N.W.2d 723 
(Wis. 1995) ......................................................................... 3 

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ............ 33 

Patsy v. Board of Regents, 457 U.S. 496 (1982) .................. 36 

Richardson v. McChesney, 218 U.S. 487 (1910).................... 3 

Southeastern Promotions v. Conrad, 420 U.S. 546 
(1975)......................................................................... passim 

State ex rel. Fireman’s Fund Ins. Co. v. Hoppmann, 240 

N.W.2d 884 (Wis. 1932)................................................... 29 

State ex rel. Ruffalo v. Common Council of City of 

Kenosha, 157 N.W.2d 568 (Wis. 1968)............................ 31 

State v. Goulette, 222 N.W.2d 622 (Wis. 1974)..................... 9 

Tee & Bee, Inc. v. City of West Allis, 571 N.W.2d 438 
(Wis. App. 1997) ................................................................ 8 

Teitel Film Corp. v. Cusak, 390 U.S. 139 (1968) (per 
curiam)........................................................................ 23, 24 

Terpstra v. Soiltest, Inc., 218 N.W.2d 129 (Wis. 1974). ...... 20 

Texas v. Johnson, 491 U.S. 397 (1989) ................................ 34 

vi 

TK’s Video v. Denton, Tex., 24 F.3d 705 (CA5 1994) ......... 33 

United States v. Alabama, 362 U.S. 602 (1960)..................... 6 

United States v. Thirty-Seven Photographs, 402 U.S. 
363 (1971)......................................................................... 24 

Vance v. Universal Amuse. Co., 445 U.S. 308 (1980) 
(per curiam)....................................................................... 24 

Wayte v. United States, 470 U.S. 598 (1985) ....................... 38 

Wis. Stat. § 68.01.............................................................. 9, 36 

Wis. Stat. § 68.09........................................................ 8, 11, 20 

Wis. Stat. § 68.11(1) ............................................................. 15 

Wis. Stat. § 68.11(2) ....................................................... 16, 35 

Wis. Stat. § 68.13(1) ............................................................... 9 

Young v. American Mini Theatres, 427 U.S. 50 (1976)30, 33, 41 

Statutes 

28 U.S.C. § 1257(a) ................................................................ 1 

Wauk. Mun. Code § 2.11(1) ................................................... 7 

Wauk. Mun. Code § 8.195 (preamble) ................................... 6 

Wauk. Mun. Code § 8.195(1) ................................................. 6 

Wauk. Mun. Code § 8.195(10)(c)........................................... 6 

Wauk. Mun. Code § 8.195(11) ............................................... 7 

Wauk. Mun. Code § 8.195(2) ................................................. 5 

Wauk. Mun. Code § 8.195(3)(c)......................................... 7, 9 

Wauk. Mun. Code § 8.195(3)(d).................................... passim 

Wauk. Mun. Code § 8.195(7)(a)............................................. 6 

Wauk. Mun. Code § 8.195(7)(b)............................................. 6 

Wauk. Mun. Code § 8.195(7)(c)............................................. 6 

Wauk. Mun. Code § 8.195(9)(a)............................................. 6 

Wauk. Mun. Code § 8.195(9)(b)............................................. 6 

Wauk. Mun. Code § 8.195(9)(c)............................................. 6 

vii 

Wis. Stat. § 68.08.................................................................... 8 

Wis. Stat. § 68.09(3) ............................................................... 8 

Wis. Stat. § 68.10(2) ............................................................... 8 

Wis. Stat. § 68.11(2) ............................................................... 7 

Wis. Stat. § 68.11(3) ......................................................... 7, 15 

Wis. Stat. § 68.12(1) ............................................................... 8 

Wis. Stat. § 68.13.................................................................... 8 

Wis. Stat. § 68.16.................................................................... 7 

Wis. Stat. § 77.52.................................................................. 37 

Wis. Stat. § 781.02................................................................ 25 

Wis. Stat. § 813.02(1)(a)....................................................... 25 

Wis. Stat. § 944.21.................................................................. 6 

Wis. Stat. Ch. 68 ..................................................................... 7 

BRIEF FOR RESPONDENT 

OPINIONS BELOW 

Opinions and orders were entered in this case at both the 
administrative and judicial levels. The unpublished findings 
of the Waukesha Common Council Ordinance and Licensing 
Committee are reproduced at Respondent’s Lodging (“Resp. 
Lodging”), vol. I, tab 2.1 The unpublished findings of the 
Waukesha Common Council are reprinted at Pet. App. 82a- 
84a. The unpublished findings of the Waukesha Administra- 
tive Review Appeals Board are reprinted at Pet. App. 72a- 
81a. 

The Wisconsin circuit court’s unpublished opinion and 
order holding in favor of Respondent City of Waukesha in 
Petitioner’s state-law certiorari action is reprinted at Pet. App. 
55a-71a. The Wisconsin court of appeals’ unpublished opin- 
ion seeking to certify the case to the Wisconsin supreme court 
is reprinted at Pet. App. 44a-52a. The Wisconsin supreme 
court’s unpublished order denying certification is reprinted at 
Pet. App. 53a. The Wisconsin court of appeals’ order af- 
firming the circuit court’s decision is published at 604 
N.W.2d 870 and reprinted at Pet. App. 1a-43a. The Wiscon- 
sin supreme court’s unpublished order denying discretionary 
review is reprinted at Pet. App. 54a. 

JURISDICTION AND SUGGESTION OF MOOTNESS 

Petitioner filed a petition for a writ of certiorari on April 
17, 2000. This Court granted certiorari, limited to the third 
question presented by the petition, on June 19, 2000. 120 S. 

1 For the Court’s convenience, Respondent is lodging relevant ex- 
cerpts of the lower court record in three volumes. Volume I princi- 
pally contains relevant administrative filings and rulings in 
chronological order. Volumes II and III contain the pleadings and 
transcripts from the administrative appeal. 

2 

Ct. 2687 (2000). Petitioner invokes this Court’s jurisdiction 
pursuant to 28 U.S.C. § 1257(a). 

Respondent notes the possibility that this action is moot 
because even if this Court ruled in Petitioner’s favor on the 
question presented, that ruling would not remedy any injury 
suffered by Petitioner.2 This case arises because, pursuant to 
a municipal ordinance, Respondent City of Waukesha has re- 
fused to renew Petitioner’s license to operate an adult busi- 
ness. Petitioner’s state court complaint alleges that the City’s 
action is invalid because, inter alia, the City’s ordinance 
gives the City’s decisionmakers effectively unbridled discre- 
tion. Resp. Lodging, vol. I, tab 11. If Petitioner had pre- 
vailed on that claim or any other that went to the merits of the 
licensing determination in this case, then the City’s decision 
not to renew Petitioner’s license presumably would have been 
invalidated. The state court of appeals held, however, that the 
licensing determination was entirely valid, Pet. App. 12a-18a, 
29a-42a, and this Court declined to review that holding, 120 
S. Ct. 2687 (2000). This Court instead granted certiorari lim- 
ited to the question whether the Waukesha ordinance is inva- 
lid insofar as it fails to guarantee a “prompt judicial decision” 
on appeal from the City’s licensing determination. Id.; see 
Pet. i. 

So far as Respondent can determine, a ruling in Peti- 
tioner’s favor on the single question on which this Court 
granted certiorari would not redress any injury suffered by 
Petitioner. Because of this Court’s limited order granting 
certiorari, the lower courts’ holding that the City properly de- 
clined to renew Petitioner’s license is effectively final. All 
that is left in dispute is whether the lower courts should have 
issued their decisions on a more expeditious timetable. But 

2 As discussed fully in the text, the possibility of mootness arose 
when this Court entered its Order granting certiorari limited to a 
single question. Respondent accordingly could not have brought 
the matter to the Court’s attention in the brief in opposition. 

3 

that question is entirely academic to Petitioner, which no 
longer has a license and could not on the basis of any decision 
by this Court seek to have its license reinstated. 

Put concretely, if this Court were to rule for Petitioner, the 
case would be remanded to the Wisconsin courts. Because 
this Court’s holding would not call into question any other 
aspect of the Waukesha ordinance, the lower courts would 
simply reaffirm, on the basis of the law of the case, their 
holding that the City properly refused to renew Petitioner’s 
license. See Burch v. American Family Mut. Ins. Co., 543 
N.W.2d 277, 279 (Wis. 1996); see also Pet. App. 28a (sever- 
ing unconstitutional hearing provision). Similarly, res judi- 
cata would bar a subsequent plenary action by Petitioner 
seeking reinstatement of its license. See Northern States 
Power Co. v. Bugher, 525 N.W.2d 723, 727-28 (Wis. 1995). 
The case accordingly appears to be moot. See Iron Arrow 
Honor Soc’y v. Heckler, 464 U.S. 67, 72-73 (1983) (per cu- 
riam) (case mooted when petitioner’s injury would remain the 
same “irrespective of the outcome” in this Court); Richardson 

v. McChesney, 218 U.S. 487, 492 (1910) (“The thing sought 
to be prevented has been done, and cannot be undone by any 
judicial action.”). 

So far as Respondent can determine, four arguments that 
Petitioner could raise in asserting a concrete interest in the 
outcome of this case are unavailing. First, Petitioner could 
not apply for a new license and thereby benefit from a deci- 
sion in its favor in this case. The City’s decision not to renew 
Petitioner’s license disables Petitioner as a matter of law from 
reapplying for a license at that location for one year. Wauk. 
Mun. Code § 8.195(7)(e). Moreover, Petitioner has made 
clear its intention to cease operations in Waukesha perma- 
nently. See Resp. Lodging, vol. I, tab 14. See generally 
Golden v. Zwickler, 394 U.S. 103, 109 (1969) (case moot al- 
though plaintiff might again run for Congress, because “[w]e 
think that under all the circumstances of the case the fact that 
it was most unlikely that the Congressman would again be a 

4 

candidate for Congress precluded a finding that there was 
‘sufficient immediacy and reality’ here”); Brownlow v. 
Schwartz, 261 U.S. 216, 217 (1923) (“The case has become 
moot for two reasons: (1) because the permit, the issuance of 
which constituted the sole relief sought by petitioner, has 
been issued and the building to which it related has been 
completed, and (2) because, the first reason aside, petitioner 
no longer has any interest in the building, and therefore has 
no basis for maintaining the action.”). 

Second, this is not one of the limited classes of cases in 
which the normal case-or-controversy requirement should be 
relaxed because the question is capable of repetition yet 
evading review. See Murphy v. Hunt, 455 U.S. 478, 482 
(1982) (per curiam). It is correct that an adult business’s li- 
cense generally will expire before this Court can rule on a 
challenge of this sort. But adult businesses are free to chal- 
lenge the constitutionality of licensing ordinances in plenary 
actions at any time. See infra at 37-38. Such suits generally 
are not mooted by the passage of time because (a) the adult 
business continues to satisfy the requirements for a license, or 
(b) the challenge is brought by an applicant for a new license, 
as in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). 
Indeed, it appears that every other decision involved in the 
circuit conflict on the question presented by this case arose 
from a plenary civil rights action. See Pet. App. 21a-22a 
(collecting cases). So far as the decisions of the courts of ap- 
peals reflect, none of those cases became moot on appeal. 

Third, this case is not saved from mootness on the ground 
that it is a facial challenge to the Waukesha ordinance. A 
party may bring a facial challenge alleging the overbreadth of 
a statute before its application. Members of City Council of 
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 
(1984). But that party must still have a concrete interest in 
the outcome of the challenge. See FW/PBS, 493 U.S. at 233- 

35. 

5 

Fourth, petitioner could not assert a right to damages or 
any other remedy on the basis of a holding in its favor by this 
Court. Petitioner’s complaint includes a generic claim for 
appropriate relief but does not state a claim for damages (see 
Resp. Lodging, vol. I, tab 11, at 4-5), and Petitioner has never 
requested damages at any stage of the case. Moreover, the 
City did not in fact revoke Petitioner’s license or otherwise 
take any action against City News & Novelty during the pen- 
dency of the state court proceedings. Instead, the Common 
Council passed a resolution expressly stating that Petitioner 
would be allowed to continue operating at least until the trial 
court’s decision on Petitioner’s appeal, Resp. Lodging, vol. I, 
tab 9 – precisely the same result as Petitioner maintains is re- 
quired by the First Amendment. 

For the foregoing reasons, the Court may find it appropri- 
ate to dismiss the petition for a writ of certiorari as improvi- 
dently granted. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 
621 n.1 (1989). 

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED 

The First Amendment of the United States Constitution 
provides in relevant part that “Congress shall make no law * 

* * abridging the freedom of speech * * * .” The provisions 
of Waukesha Municipal Code § 8.195 are reprinted in the ap- 
pendix to this brief at 1a-14a. The provisions of Chapter 68 
of the Wisconsin Statutes are reprinted in the appendix to this 
brief at 15a-21a. 

Respondent calls to the Court’s attention an amendment to 
Section 8.195 that, while relevant to this case, does not affect 
the question on which this Court granted certiorari for the rea- 
sons discussed infra at 20-24. See Diffenderfer v. Central 
Baptist Church of Miami, Fla., 404 U.S. 412, 414 (1972) (per 
curiam) (this Court will “review the judgment * * * in light of 
[the] law as it now stands, not as it stood when the judgment 
below was entered” (citing Hall v. Beals, 396 U.S. 45, 48 

6 

(1969); United States v. Alabama, 362 U.S. 602, 604 
(1960))). In the proceedings below, the Wisconsin court of 
appeals invalidated and severed subsection (3)(d) of the 
Waukesha ordinance, which guaranteed an adult business the 
right to a hearing on appeal from a decision not to grant or 
renew a license. The court of appeals held that the hearing 
provision failed to provide a specific deadline for ruling after 
the hearing. Pet. App. 25a-26a. In response to that decision, 
the Waukesha Common Council amended subsection (3)(d) 
to guarantee that “[a] final determination stating the reasons 
therefore, together with a copy of any official recording or 
transcript of the hearing, shall be rendered within 20 days of 
the commencement of the hearing.” 

STATEMENT 

Respondent first outlines the requirements for securing 
and renewing a license to operate as an adult business in 
Waukesha, Wisconsin. It then recounts the procedural history 
of this case, including the bases for the City’s refusal to renew 
the license of Petitioner City News & Novelty. 

I. WAUKESHA’S ADULT BUSINESS LICENSING SCHEME 

Respondent City of Waukesha is located sixteen miles 
west of Milwaukee, Wisconsin and has a population of ap- 
proximately 64,000. An “adult oriented establishment” must 
have a license to operate in Waukesha. See Wauk. Mun. 
Code (“WMC”) § 8.195(2). Licensing is governed by the 
Municipal Code, which defines such an establishment to in- 
clude businesses that feature topless dancers or strippers, that 
provide facilities to view adult films, or that have as a sub- 
stantial portion of their stock in trade the sale, rental, or 
viewing of adult films or periodicals. Id. § 8.195(1); see also 
id. (defining adult films and periodicals by reference to speci- 
fied anatomical areas and sexual activities). 

In enacting the ordinance, the City concluded based on the 
experience of other municipalities that adult businesses can 

7 

lead to “increased levels of criminal activities including pros- 
titution” and other dangerous transient sexual acts, and fur- 
thermore can undermine the value of surrounding properties. 
WMC § 8.195 (preamble). The requirements of the ordinance 
seek to target these adverse secondary effects directly. Par- 
ticularly relevant to this case, an adult business may not admit 
minors, may not permit customers to engage in sexual acts on 
the premises, and must ensure that any booths for viewing 
adult films are open, accessible, and well lighted. WMC 
§ 8.195(9)(a), (b), (c), (10)(c). Thus, in determining whether 
to grant or renew a license, the City does not inquire into the 
content of the applicant’s speech, as by determining whether 
films or periodicals are obscene, which is a matter left en- 
tirely to state law. See Wis. Stat. § 944.21. Nor do the crite- 
ria for securing a license restrain speech in any respect. 

A license to operate an adult establishment, once granted, 
must be renewed annually. WMC § 8.195(7)(a). Renewal 
applications should be filed at least sixty days before expira- 
tion, but the only penalty for failing to meet that deadline is 
that the City assesses a late fee of $100. Id. § 8.195(7)(a), (b). 

The initial determination whether to renew a license is 
made by the Common Council (which is the city council) 
based on a recommendation by its Ordinance and Licensing 
Committee. Throughout the administrative process, the bur- 
den of proving that a license should not be renewed rests on 
the city attorney. Pet. App. 80a-81a. The City makes an ini- 
tial determination whether to renew a license within twenty- 
one days of receiving the application, and the city clerk is 
tasked with notifying the applicant of the ruling. WMC § 

8.195(3)(c). 

If the City declines to renew a license, only the business 
may appeal; municipal officials may not at any stage of the 
administrative process seek review of a decision to renew a 
license. Specifically, the adult business may elect to appeal 
the nonrenewal determination under either the municipal 
code, see WMC § 8.195(3)(d), or state law, see Wis. Stat. ch. 

8 

68. (The state scheme remains available under Wisconsin law 
unless a municipality expressly elects not to follow it, see Tee 
& Bee, Inc. v. City of West Allis, 571 N.W.2d 438, 441 (Wis. 
App. 1997) (citing Wis. Stat. § 68.16), which Waukesha has 
not done, see WMC §§ 2.11(1), 8.195(11); Pet. App. 23a, 
28a.) 

Under the municipal scheme, including the amended 
hearing provision (see supra at 5-6), the City’s decisionmak- 
ing takes a maximum of fifty-one days. Within ten days of an 
initial nonrenewal decision by the City, the business may file 
an appeal with the City’s Administrative Review Appeals 
Board (“Appeals Board”), required to be an impartial deci- 
sionmaker, which must hold a hearing within ten days. WMC 
§ 8.195(3)(d) (incorporating Wis. Stat. § 68.11(2)). The 
hearing permits representation by counsel, the presentation of 
evidence and witnesses sworn under oath, and cross- 
examination of opposing witnesses. Id. The adult business’s 
counsel may issue subpoenas. Id. The business may also re- 
quire that an official record of the proceedings be made at the 
City’s expense. Id. (incorporating Wis. Stat. § 68.11(3)). The 
Board must issue a ruling, together with a copy of the record, 
within twenty days of the commencement of the hearing. 
WMC § 8.195(3)(d). 

If the adult business exercises its right to pursue an appeal 
under the alternate state system instead, the City’s decision- 
making takes a maximum of seventy-one days because the 
business proceeds through an additional stage of review and 
because the time periods for appealing and for conducting the 
hearing before the Appeals Board are extended. An initial 
determination not to renew a license may be appealed within 
thirty days to the Common Council, which must make its de- 
cision within fifteen days. Wis. Stat. §§ 68.08, 68.09(3). If 
the Council votes not to renew the license, the business may 
within thirty days seek review before the Appeals Board, 
which must hold a hearing within fifteen days and issue a 

9 

ruling within twenty days thereafter. Id. §§ 68.10(2), 

68.11(1), 68.12(1). 

Under either the municipal or the state scheme, if the Ap- 
peals Board votes not to renew a license, the business may as 
a matter of right secure judicial review by filing a state circuit 
court certiorari action within thirty days. Wis. Stat. § 68.13; 
WMC § 8.195(3)(d). In such an action, the City’s licensing 
determination carries a presumption of correctness, such that 
the court will inquire only whether “(1) the board kept within 
its jurisdiction; (2) the board acted according to the law; (3) 
the action was arbitrary, oppressive or unreasonable; and (4) 
the evidence presented was such that the board might rea- 
sonably make the order or determination in question.” Pet. 
App. 8a (citing State v. Goulette, 222 N.W.2d 622, 626 (Wis. 
1974)); see also id. 55a-56a. Nor may the court “add to the 
record or take new evidence except in unusual circum- 
stances.” Id. 70a. The court “may affirm or reverse the final 
determination, or remand to the decision maker for further 
proceedings consistent with the court’s decision.” Wis. Stat. 
§ 68.13(1). These remedies, however, are not exclusive. 
Id. § 68.01. 

II. THE NONRENEWAL OF PETITIONER’S LICENSE 

1. PETITIONER’S VIOLATIONS OF THE ORDINANCE. 

Beginning in 1989, Petitioner City News & Novelty oper- 
ated in the heart of downtown Waukesha, two doors from a 
children’s toy store and near several churches. Petitioner sold 
a variety of products, including drug paraphernalia (such as 
pipes and rolling papers generally used for smoking mari- 
juana) and sexual novelty items. Petitioner also provided 
booths in which patrons could watch pornographic videotapes 
and sold a variety of pornographic videotapes and magazines. 
Because these adult materials constituted a substantial portion 
of its stock in trade, Petitioner was required to be licensed as 
an adult oriented establishment. See WMC § 8.195(2)(a). 

10 

From 1990 to 1994, Petitioner annually requested and re- 
ceived renewals of its license. There is no suggestion in the 
record that the City, either in that period or later, ever har- 
assed or improperly treated Petitioner or its customers. 

This case arises because Petitioner persistently violated 
the municipal code in late 1994 and throughout 1995. On 
several occasions, police officers found minors on the prem- 
ises. Patrons in several instances were found engaging in 
sexual acts and exposing themselves to others in the store. 
(Rather than detail here the explicit nature of the sexual acts, 
some of which go well beyond what Petitioner euphemisti- 
cally describes as “solitary lewd conduct,” Pet. Br. 9, Re- 
spondent directs the Court’s attention to the administrative 
record. See Resp. Lodging, vol. I, tab 2, at 2; id., tab 10, at 6- 

11.) Petitioner also modified the entrance to its booths to ob- 
struct open visibility and failed to correct that violation of the 
code despite repeated warnings from the city’s building in- 
spector. Id., tab 10, at 8-9. 

2. THE ADMINISTRATIVE PROCEEDINGS. 

On November 17, 1995, Petitioner applied for renewal of 
its operating license for the annual period beginning January 
26, 1996. Resp. Lodging, vol. I, tab 1. The application was 
considered at the December 18, 1995, meeting of the Com- 
mon Council’s Ordinance and License Committee, which 
voted to recommend nonrenewal based on Petitioner’s nu- 
merous violations of the municipal code over the previous 
year. Id., tab 2. The Common Council adopted that recom- 
mendation the next day. Id., tab 3.3 

3 Apparently due to issues relating to the scheduling of Council 
meetings, the City in this case made its determination in 31 days, 
rather than the 21 days specified by WMC § 8.195(3)(c). Respon- 
dent does, however, view the 21-day deadline as binding (and, in- 
deed, will defer the expiration of a license for the length of any pe- 
riod in which the City fails to comply with a mandatory deadline), 

11 

Because Petitioner informally advised the City of its in- 
tention to appeal pursuant to the state scheme rather than the 
municipal scheme, the Common Council scheduled the matter 
for consideration at its next meeting on January 16, 1996. 
But by that date, some four weeks after the initial determina- 
tion, Petitioner still had not appealed. Resp. Lodging, vol. I, 
tab 4. Petitioner waited until the last possible day (which fell 
only a week before its license was set to expire) to file its 
short notice of appeal. Id., tab 5. Within days, the Council 
held a special session, at which it reviewed Petitioner’s appli- 
cation and decided against renewal. Id., tab 6. At that time, 
the Council passed a resolution guaranteeing Petitioner’s right 
to operate pending review before the municipal Appeals 
Board. Id. 

Petitioner waited a full three weeks before filing its one- 
sentence petition for review before the Appeals Board. Resp. 
Lodging, vol. I, tab 7. Petitioner also advised the City that it 
was waiving all time limits on the disposition of its appeal. 
Id., tab 8; see also Wis. Stat. § 68.09(3) (providing that appli- 
cant may waive applicable deadlines). 

Subsequently, the Council passed a special resolution 
further extending Petitioner’s license to operate pending any 
later judicial review in state trial court. Resp. Lodging, vol. I, 
tab 9. As would become apparent, Petitioner therefore had no 
incentive to proceed through the appeals process expedi- 
tiously. (Amicus Liberty Project thus is correct, Br. 14, that 
“17 months elapsed between City News’s application for a 
license and the first judicial decision on the merits,” but re- 
sponsibility for that delay lies squarely on the shoulders of 
Petitioner.) 

The Appeals Board met four times regarding Petitioner’s 
license. Resp. Lodging, vols. II and III (transcripts). The ad- 
ditional dates were provided principally to accommodate Pe- 

which is the relevant point for purposes of this facial challenge to 
the ordinance. 

12 

titioner’s request that it be able to locate, interview, and sub- 
poena witnesses who had knowledge of Petitioner’s alleged 
violations of the municipal code and because Petitioner made 
extraordinarily extensive use of its right to examine witnesses 
and to raise objections. At the hearings, detailed testimony 
was received. Both Petitioner and the city attorney (who op- 
posed renewal) also submitted extensive briefs and proposed 
findings of fact, as well as responses to each other’s submis- 
sions. Id., vol. II, tabs 1-6. On June 28, 1996, the Board is- 
sued a decision sustaining the nonrenewal determination and 
setting forth detailed reasons for its decision. Id., vol. I, tab 

10. 

3. THE CIRCUIT COURT PROCEEDINGS. 

Petitioner commenced this suit on July 15, 1996, filing a 
state-law certiorari action to appeal the City’s decision not to 
renew its license. Resp. Lodging, vol. I, tab 11. Petitioner 
did not challenge either the constitutionality of the Wisconsin 
state law statutory scheme for appealing licensing determina- 
tions or the renewal criteria set forth in WMC § 8.195. See 
Pet. App. 57a (trial court ruling; “plaintiff is not attacking 
Wisconsin Statute Chapter 68”); id. 59a (“Plaintiff does not 
attack the nature of the conduct which ‘if found’ constitute a 
violation of the ordinance.”). Instead, the complaint alleged 
that the nonrenewal was invalid because the City’s decision 
was based on insufficient evidence, because the nonrenewal 
determination rested on conduct not properly attributable to 
Petitioner, because Petitioner allegedly did not have sufficient 
notice of its violations of the municipal code, and because 
“Ordinance No. 8.195 is void and unconstitutional.” Resp. 
Lodging, vol. I, tab 11, at 3-4. Petitioner subsequently de- 
layed the circuit court’s ruling on its complaint, successfully 
requesting a forty-five-day extension of time to file its brief 
on the merits and a further fifteen-day extension to file its re- 
ply brief. Id., tab 12. 

After briefing was completed, the circuit court ruled for 
Respondent. See Pet. App. 55a-71a. The court first rejected 

13 

each of Petitioner’s facial challenges to WMC § 8.195. The 
court concluded that the ordinance sufficiently limits the dis- 
cretion of city officials, given that it sets out express criteria 
for renewal and specifies that particular municipal violations 
must be found in order to justify nonrenewal, a determination 
that “is then subject to review [in court] under the substantial 
evidence test.” Pet. App. 58a-60a. Furthermore, the ordi- 
nance sets sufficient time limits on the licensing determina- 
tion because it contains specific time periods and the City 
specifically must complete all inspections of an adult business 
within the twenty-one-day period for making a license deter- 
mination. Id. 60a-64a. 

The circuit court also rejected each of Petitioner’s specific 
arguments regarding the application of WMC § 8.195 in this 
case. The court concluded that the City’s decision had been 
made by impartial decisionmakers at each stage and that the 
City had provided Petitioner with sufficient warning of the 
charged violations of the municipal code. Pet. App. 65a-69a. 
The City also was justified in refusing to renew Petitioner’s 
license rather than merely suspending it, a decision that is 
“within the discretion of the licensing authority.” Id. 69a. 
Finally, each of the violations found by the Board was sup- 
ported by substantial evidence. Id. 70a-71a. 

4. THE APPELLATE PROCEEDINGS. 

On Petitioner’s appeal, the Wisconsin court of appeals af- 
firmed, Pet. App. 1a-43a,4 specifying from the outset (as had 
the circuit court) that Petitioner challenged only the 

4 The case was delayed in the court of appeals for two reasons out- 
side the parties’ control. The court of appeals unsuccessfully 
sought to refer the case to the state supreme court. Pet. App. 44a- 
52a, 53a. The court of appeals also stayed the proceedings on ap- 
peal for nine months pending the state supreme court’s decision in 
another case, County of Kenosha v. C & S Management, 588 
N.W.2d 236 (Wis. 1999), which ultimately proved nondispositive 
in this case. 

14 

Waukesha ordinance, not the separate state scheme. Pet. 
App. 2a (court of appeals ruling; explaining that petitioner 
alleged “that the City’s adult establishment licensing scheme 
is unconstitutional”); id. 28a (“ch. 68 sets forth narrow, defi- 
nite and objective standards for bringing an appeal, and City 
News does not directly challenge this chapter”). 

The court of appeals held that the immediate availability 
of judicial review as a matter of right through a certiorari pro- 
ceeding to challenge the nonrenewal of a license constitutes 
“prompt judicial review” as required by this Court’s decision 
in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). See 
Pet. App. 22a. The court of appeals specifically contrasted 
this Court’s determination in Freedman v. Maryland, 380 
U.S. 51 (1965), that a content-based censorship law “must 
‘assure a prompt final judicial decision,’” Pet. App. 20a 
(quoting 380 U.S. at 59) (emphasis in court of appeals’ opin- 
ion), with Justice O’Connor’s later determination for the plu- 
rality in FW/PBS that a content-neutral licensing scheme need 
only provide “the ‘possibility’ and ‘availability’ of prompt 
judicial review,” id. (quoting 493 U.S. at 227, 228 (emphasis 
added)). Moreover, a municipality does not even have the 
power to require a state court to decide a licensing challenge 
on an expedited schedule. Id. 22a. The court of appeals 
therefore held, agreeing with the First, Fifth, and Seventh Cir- 
cuits, that “prompt access to judicial review qualifies as 
‘prompt judicial review’” under FW/PBS. Id. 21a-22a (em- 
phasis in original). That requirement was fully met here be- 
cause Petitioner had the right, which it duly exercised, to file 
a certiorari action immediately after the Appeals Board’s de- 
cision. Id. 

The court of appeals rejected Petitioner’s remaining alle- 
gations that WMC § 8.195 is facially invalid, holding that 
“the City’s licensing scheme does set forth specific guidelines 
and expressly provides that a violation of such guidelines 
constitutes a ground for nonissuance or nonrenewal.” Pet. 
App. 15a. Furthermore, the ordinance both provides a spe- 

15 

cific twenty-one-day time limit in which the City must make 
the renewal determination and also maintains the status quo 
during the renewal determination “because the common 
council’s review of an application is completed prior to expi- 
ration of the license.” Id. 19a. Finally, an application must 
be reviewed by an impartial decisionmaker. Id. 29a (citing 
Wis. Stat. § 68.11(1)). 

The court of appeals also rejected Petitioner’s challenges 
to the application of WMC § 8.195 in this case. Not only 
were the City’s decisionmakers impartial, but the City also 
satisfied every other requirement of due process, “providing 
notice of the charges, an opportunity to respond to and chal- 
lenge the charges, an opportunity to present witnesses, and an 
opportunity to confront and cross-examine opposing wit- 
nesses.” Pet. App. 31a-36a. Moreover, nonrenewal rather 
than mere suspension was the appropriate sanction for Peti- 
tioner’s “nine separate ordinance violations occurring within 
a one-year period.” Id. 37a (emphasis added). Indeed, be- 
cause multiple violations resulted in convictions of a City 
News & Novelty director, “suspension [was] not an available 
sanction in this case.” Id. Finally, substantial evidence (in- 
cluding sworn testimony of several police officers) supported 
each finding of a violation by Petitioner. Id. at 38a-42a. 

The court of appeals did agree with Petitioner, however, 
that WMC § 8.195 was invalid in a single respect that the 
City has since corrected by amending the ordinance. See su- 
pra at 5-6. Under subsection 3(d) as then enacted, if an appli- 
cant appealed from a nonrenewal determination, the Common 
Council was required to conduct a hearing within ten days, 
but otherwise was “given no direction as to what it must do 
following the hearing or when it must presumably take action 
in response to the hearing.” Pet. App. 25a-26a. In the court 
of appeals’ view, the ordinance thereby “create[d] a risk of an 
indefinite delay by putting an applicant at the mercy of the 
licensing body.” Id. 25a. But the court of appeals concluded 
that, as a matter of Wisconsin law, the invalid public hearing 

16 

provision was severable from the remainder of the city ordi- 
nance, which was otherwise constitutional. Id. 26a-28a. In 
response to the court of appeals’ decision, Waukesha 
amended subsection 3(d) to specify that the Council must is- 
sue a decision within twenty days of the commencement of 
the hearing. See supra at 5-6.5 

5. THIS COURT’S ORDER GRANTING CERTIORARI. 

After the Wisconsin supreme court denied Petitioner’s re- 
quest for review, Pet. App. 54a, this Court granted certiorari 
limited to the third question presented by Petitioner: whether 
“a licensing scheme which acts as a prior restraint [is] re- 
quired to contain explicit language which prevents injury to a 
speaker’s rights from want of a prompt judicial decision.” 
Pet. i; 120 S. Ct. 2687 (2000) (order granting certiorari). The 
petition for certiorari explained that the court of appeals’ de- 
termination that the First Amendment does not require a 
prompt judicial decision on an appeal from a licensing deter- 
mination was the subject of a conflict in the circuits. Pet. 15- 

16. The Court declined to consider, however, Petitioner’s 
challenges that went to the merits of the actual licensing de- 
termination in this case – viz., whether the burden of persua- 
sion should have been placed on the City in the judicial pro- 
ceedings and whether WMC § 8.195 grants the City effec- 
tively unbridled discretion to refuse to renew a license. 

5 Compare WMC § 8.195(3)(d) (as at Oct. 20, 1999), quoted in Pet. 
App. 24a (“If the applicant requests a hearing within 10 days of 
receipt of notification of denial, a public hearing shall be held 
within 10 days thereafter before the Council or its designated com- 
mittee as hereinafter provided.”) with WMC § 8.195(3)(d) (current 
version) (“If the applicant requests a hearing within 10 days of re- 
ceipt of notification of denial, a public hearing shall be held within 
10 days thereafter in conformity with sec. 68.11(2), (3), Wis. Stats. 
A final determination stating the reasons therefore, together with a 
copy of any official recording or transcript of the hearing, shall be 
rendered within 20 days of the commencement of the hearing.”). 

17 

SUMMARY OF ARGUMENT 

I. Petitioner principally argues that Chapter 68 of the 
Wisconsin Code is unconstitutional because it fails to guar- 
antee that an adult business’s license-renewal application will 
be ruled upon before the license expires. That argument fails 
because an adult business may forgo Chapter 68’s adminis- 
trative appeal procedures and instead utilize the municipal 
scheme provided by WMC § 8.195(3)(d), under which ad- 
ministrative review will be completed before its license ex- 
pires. 

In any event, Petitioner’s challenge to Chapter 68 is not 
properly presented. This Court granted certiorari limited to 
the question whether WMC § 8.195 is invalid because it fails 
to guarantee a “prompt judicial decision” on appeal from an 
administrative licensing decision. Petitioner’s argument, by 
contrast, is a challenge to Chapter 68 (not WMC § 8.195) and 
to the time limits for rendering an administrative decision (not 
the time limits for rendering a judicial decision on appeal). 
Indeed, Petitioner waived the argument it presses here by 
failing to raise it in the lower courts. 

II. WMC § 8.195 is constitutional because it provides an 
adult business with “access” to “prompt judicial review” as 
required by the plurality in FW/PBS, Inc. v. City of Dallas. 
The adult business may appeal as a matter of right from the 
administrative proceedings, which (as noted) will conclude 
before its license expires. Petitioner relies on inapposite deci- 
sions (principally Freedman v. Maryland and its progeny) 
holding that the First Amendment requires a “prompt judicial 
decision” on appeal from a determination by a censor that 
speech should be prohibited based on its contents. By con- 
trast, the ordinance at issue here (like the ordinance in 
FW/PBS), involves no censorship and no evaluation of the 
content of Petitioner’s speech. 

The prophylactic concerns underlying the Freedman line 
of cases thus are inapplicable here. First, the FW/PBS plural- 

18 

ity squarely rejected the argument that an adult business will 
be deterred from applying for a license by the absence of a 
guaranteed “prompt judicial decision.” That conclusion is 
amply justified with respect to WMC § 8.195, which provides 
adult businesses with numerous procedural protections. In 
addition, an adult business may secure injunctive relief to 
prevent the expiration of its license in appropriate cases. 

Second, a “prompt judicial decision” is not required on 
the ground that courts have unique expertise in this area. Un- 
like determinations regarding the content of protected speech, 
it is municipalities that have expertise in determining whether 
content-neutral regulatory ordinances have been violated. 
Here, for example, a court has no particular expertise in de- 
termining whether minors were found on Petitioner’s prem- 
ises and whether patrons were engaging in sex acts on the 
premises. And, again, the ordinance’s numerous procedural 
protections guarantee that the administrative process will be 
fair and thorough. To be sure, courts do have special exper- 
tise in determining whether municipal ordinances are them- 
selves constitutional, but such claims are properly brought as 
plenary civil rights actions in court. 

Petitioner’s remaining arguments for extending the 
“prompt judicial decision” requirement to the context of mu- 
nicipal licensing are unavailing. Petitioner primarily argues 
that municipal officials are unfaithful to the Constitution, a 
scurrilous claim that has no foundation in the record. Peti- 
tioner also fails to acknowledge the sea change its theory 
would work in municipal law and the role of the courts. 
Adult businesses would have a free pass to violate any con- 
tent-neutral regulation, such as tax and sanitation laws, until 
the courts approved an appropriate administrative sanction. 
The same would of course be true for expressive businesses 
of every kind, including publishers, newsstands, and movie 
theaters. Nothing in the Freedman line of cases supports such 
an extraordinary result. 

19 

ARGUMENT 

I. PETITIONER’S PRINCIPAL ARGUMENT, IN WHICH IT 
CHALLENGES THE TIMING OF ADMINISTRATIVE 
DECISIONMAKING UNDER A WISCONSIN STATE 
STATUTE, IS BOTH WRONG AND IRRELEVANT TO THE 
QUESTION PRESENTED. 

Petitioner’s principal argument in this Court is that a Wis- 
consin state law, Chapter 68 of the Wisconsin Statutes, is in- 
valid because it fails to guarantee that a municipality will is- 
sue a decision on an application to renew an adult business 
license before the license expires. Specifically, although an 
adult business in Waukesha may submit a renewal application 
sixty days prior to expiration of its license, the state statute 
permits the municipality a longer period – up to seventy-one 
days – to complete the administrative process. Indeed, Peti- 
tioner maintains, the time may be still longer because the 
statute does not specify how long a required “hearing” may 
last. See, e.g., Pet. Br. 19-20. 

1. THE FIXED ADMINISTRATIVE TIME LIMITS SATISFY 

THE FIRST AMENDMENT. 

Petitioner’s arguments need not detain this Court because, 
wholly apart from the state statute, the Waukesha ordinance 
itself guarantees that the administrative process will be com- 
pleted in less than sixty days and further specifies the length 
of the administrative appeal hearing. In response to the deci- 
sion of the court of appeals invalidating a prior version of the 
municipal hearing provision, WMC § 8.195(3)(d), the City 
amended that subsection of the ordinance to provide that the 
Appeals Board must issue a “final determination * * * to- 
gether with a copy of any official recording or transcript of 
the hearing * * * within 20 days of the commencement of the 
hearing.” As a result, the City has a maximum of fifty-one 
days to complete the administrative review process. In this 
facial challenge, in which Petitioner seeks prospective relief, 
it is the current version of the ordinance that is relevant to this 

20 

Court’s decision. Diffenderfer v. Central Baptist Church of 
Miami, Fla., 404 U.S. 412, 414 (1972) (per curiam), quoted 
supra at 5. The Court’s practice is reflective of the sound 
view that the lower courts should be given the first opportu- 
nity to address the constitutionality of an amended statute or 
ordinance. See, e.g., Fusari v. Steinberg, 419 U.S. 379, 389 
(1975); cf. Lawrence v. Chater, 516 U.S. 163, 167 (1996) 
(per curiam) (noting the advantage of “procuring the benefit 
of the lower court’s insight before we rule on the merits”). 

Petitioner is correct that under the separate statutory 
scheme, the administrative process may take up to seventy- 
one days. But that hardly makes the statute unconstitutional, 
given that the adult business has the option of pursuing the 
more expeditious municipal appeals process. Moreover, even 
if it prefers the state scheme, the adult business is free to 
submit its renewal application more than seventy-one days 
before its license expires. See WMC § 8.195(7)(a) (applica- 
tion should be submitted a minimum of sixty days in ad- 
vance). On Petitioner’s alternative view, the entire adminis- 
trative scheme must be held unconstitutional because the City 
will accept renewal applications up to the date that an appli- 
cant’s license expires, see id. § 8.195(7)(b), which by defini- 
tion means that in some instances an applicant can choose to 
apply later than the minimum time the City may take to make 
its decision. This accordingly is not a case in which a licens- 
ing scheme is invalid because there is “no means by which an 
applicant may ensure” that its application will be decided in a 
timely manner. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 
227 (1990) (plurality opinion) (emphasis added). 

2. PETITIONER’S ARGUMENT IS OUTSIDE THE SCOPE OF 

THE QUESTION PRESENTED. 

Petitioner’s argument is also irrelevant because this Court 
granted certiorari on a very different issue: whether a licens- 
ing scheme is “required to contain explicit language which 
prevents injury to a speaker’s rights from want of a prompt 
judicial decision.” Pet. i (emphasis added); see 120 S. Ct. 

21 

2687 (2000) (granting certiorari limited to question three). As 
the petition for certiorari explained, the lower courts are di- 
vided over whether a municipal licensing scheme is invalid if 
it fails to guarantee that the adult business’s appeal will be 
promptly decided. Pet. 15-16; see also Pet. App. 21a-22a. In 
this case, the Wisconsin court of appeals agreed with the 
First, Fifth, and Seventh Circuits that FW/PBS, Inc. v. City of 
Dallas requires only that the municipality provide access to 
prompt judicial review, although it noted the contrary view of 
other courts of appeals. Pet. App. 21a. 

In an attempt to suggest that its arguments fall within the 
question presented, Petitioner makes three substantial mis- 
statements. First, Petitioner seriously misstates the question 
presented, asserting that this Court agreed to consider: “When 
a licensing ordinance contains a renewal requirement, must 
the ordinance include explicit language to prevent injury to a 
speaker’s rights from want of a prompt administrative or ju- 
dicial decision?” Pet. Br. 14 (emphasis added). Compare 
Pet. i. Petitioner’s attempted addition of “administrative” is 
critical here, for it raises entirely different questions under the 
First Amendment and does not implicate the circuit conflict 
that caused this Court to grant certiorari. 

Second, Petitioner incorrectly asserts that in the proceed- 
ings below it challenged the timing of administrative pro- 
ceedings under the state statutory scheme and specifically the 
statutory provision for holding an administrative hearing. 
According to Petitioner, it “raised the open-ended nature of 
administrative review under Chapter 68.” Pet. Br. 12 n.12. In 
reality, Petitioner’s complaint relates only to the Waukesha 
ordinance; it does not allege that those provisions of Chapter 
68 are unconstitutional. See Resp. Lodging, vol. I, tab 11. 
Indeed, both the trial court and the court of appeals went to 
pains to note that Petitioner challenged only the Waukesha 
ordinance, not the separate state statutory scheme. See supra 
at 12, 14. 

22 

Petitioner cites two pages in its court of appeals brief as 
supposedly setting forth its challenge to Chapter 68. Pet. Br. 
12 n.12 (citing Pet. C.A. Br. 23-24). Even if Petitioner had 
raised such a claim in the state court of appeals, upon which 
that court unquestionably never passed, it would not be pre- 
sented here because the Wisconsin courts follow the tradi- 
tional rule that claims not raised in the trial court cannot be 
raised for the first time on appeal. Terpstra v. Soiltest, Inc., 
218 N.W.2d 129, 133 (Wis. 1974). This Court, in turn, will 
consider only questions properly presented in or passed upon 
by the court below. NCAA v. Smith, 525 U.S. 459, 470 
(1999). 

In any event, the cited pages of Petitioner’s court of ap- 
peals brief – which Respondent is including in its lodging for 
the Court’s convenience, see Resp. Lodging, vol. I, tab 13 – 
make no such argument. In a single sentence, Petitioner 
noted that Wis. Stat. § 68.09 includes “no requirement that 
the decision on review be made within any certain period of 
time.” But this one sentence does not purport to be a free- 
standing challenge to deadlines under Chapter 68. Instead, 
Petitioner’s point responded to the trial court’s holding that 
the hearing provision of the Waukesha ordinance is valid be- 
cause it, in turn, incorporates Section 68.09. Pet. App. 61a- 
62a. In disagreeing with the trial court on this issue, the court 
of appeals did not consider the requirements or the constitu- 
tionality of the state statute’s hearing provision. Id. 24a-28a. 

Third, and relatedly, Petitioner incorrectly states that the 
court of appeals passed upon the constitutionality of the tim- 
ing of administrative decisions under Chapter 68, including 
specifically the statute’s administrative hearing provision. 
Pet. Br. 12-13. Of course, because the decision below never 
purports to do any such thing, Petitioner is forced to contend 
in a footnote that “[t]he Court’s upholding of the Chapter 68 
procedures was implicit.” Id. n.13. But at every turn, and as 
to every claim, the court of appeals made clear that it was 

23 

passing only on the constitutionality of the Waukesha ordi- 
nance.6 

Petitioner fares no better in asserting that its challenges to 
Chapter 68 are fairly included within the question presented. 
According to Petitioner, “Because the open-ended nature of 
the administrative time frame necessarily delays the point in 
time at which judicial review may be initiated, such a flaw is 
within the scope of the question presented because it causes 
the time frame for judicial review to be open-ended and in- 
definite.” Pet. Br. 19. In other words, Petitioner maintains 
that because Chapter 68 permits a municipality to take up to 
seventy-one days to review a license renewal application and 
does not set a fixed schedule for the hearing on appeal, an ap- 
plicant will be unable to go to court on a date certain and, in 
turn, the statute by definition cannot guarantee “prompt judi- 
cial review.” 

In the first place, even if the legal issue raised by Peti- 
tioner were “fairly included” in the question presented, that 

6 Pet. App. 9a (“First Amendment Protections. City News raises 
a number of facial challenges to the constitutionality of the City’s 
licensing scheme.”); id. 12a (“1. Renewal Standards. City News 
first contends that the ordinance is unconstitutional because it fails 
to provide explicit standards for license renewal.”); id. 16a (“2. In- 
adequate Time Limits. City News contends that the City’s licens- 
ing scheme is defective because it does not prescribe mandatory 
time limits for the application process.”); id. 19a (“3. Preserving 
the Status Quo. City News contends that the ordinance is defective 
because it fails to explicitly require preservation of the status quo 
pending judicial review of a license denial or revocation.”); id. 20a 
(“4. Prompt Judicial Review. City News next asserts that the ordi- 
nance does not guarantee ‘prompt judicial review,’ as established 
by the Supreme Court in Freedman.”); id. 24a (5. Public Hearing 
Provision. City News further argues that an indefinite time period 
is created as to the public hearing set forth under MUNICIPAL CODE 
§ 8.195(3)(d).”) (emphases in original) (paragraph numbering 
omitted). 

24 

would not justify passing on the constitutionality of a statute 
that was not addressed in the proceedings below. Further- 
more, the administrative appeals procedure of Chapter 68 
does not delay the availability of judicial review for an appli- 
cant, which can instead proceed under the more expeditious 
municipal scheme. 

In any event, Petitioner’s argument is a non sequitur. Be- 
cause the court of appeals had invalidated the hearing provi- 
sion set forth in the ordinance itself, this Court necessarily 
presumed in granting certiorari that it would determine 
whether the judicial review provisions of the Waukesha ordi- 
nance were, standing alone, invalid for failure to guarantee a 
“prompt judicial determination.” On Petitioner’s far broader 
view of the question presented, it has the right to challenge in 
this Court any aspect of the timing of the administrative pro- 
ceedings – such as the deadlines for filing an application, the 
deadlines for the adult business to appeal, and the timing for 
providing a transcript of the hearing – all of which affect the 
point in time at which the adult business may pursue judicial 
review, but none of which has anything to do with the actual 
question presented.7 

II. WAUKESHA MAKES PROMPT JUDICIAL REVIEW 
AVAILABLE TO APPLICANTS FOR ADULT-BUSINESS 
LICENSES. 

Petitioner’s argument that WMC § 8.195 is unconstitu- 
tional for failure to guarantee a “prompt judicial determina- 
tion” on appeal from an administrative licensing decision is 

7 Indeed, Petitioner obliquely argues in this Court that the statute is 
unconstitutional because it does not guarantee when the applicant 
will be provided a transcript of the administrative proceedings. Pet. 
Br. 8. The amended Waukesha ordinance, however, guarantees 
that the applicant will be provided a copy of the transcript at the 
same time as the Appeals Board renders its decision. WMC 
§ 8.195(3)(d). 

25 

unavailing. The decisions on which Petitioner relies all arise 
in a very different context: First Amendment challenges to 
laws permitting administrative decisionmakers to censor ex- 
pressive materials based on judgments about the content of 
those materials. The Waukesha ordinance, by contrast, in- 
volves neither an inquiry into the content of the materials sold 
by Petitioner nor censorship of any kind. Moreover, as the 
plurality opinion in FW/PBS, Inc. v. City of Dallas makes 
quite clear, the prophylactic concerns underlying the “prompt 
judicial determination” requirement are absent here: there is 
no risk that adult businesses will elect not to pursue licenses 
and courts are not uniquely suited to making content-neutral 
licensing determinations (indeed, precisely the opposite is 
true). Finally, Petitioner’s argument necessarily implies a 
right of all expressive businesses (including newsstands, 
movie rental stores, and television stations) to continue to op- 
erate pending judicial review notwithstanding their failure to 
follow all manner of content-neutral regulatory statutes (such 
as the obligation to pay taxes or to follow sanitation laws). 
That cannot be a correct reading of the First Amendment. 

1. THE PROMPT JUDICIAL DETERMINATION REQUIRE- 
MENT APPLIES TO CONTENT-BASED CENSORSHIP 

SCHEMES, NOT CONTENT-NEUTRAL LICENSING 

ORDINANCES. 

Petitioner’s argument is flawed from the outset because it 
rests on precedents holding that a court must issue “a prompt 
judicial decision of the question of the alleged obscenity of” a 
work that has been censored. Teitel Film Corp. v. Cusack, 
390 U.S. 139, 141 (1968) (per curiam) (emphasis added); see 
also Fort Wayne Books v. Indiana, 489 U.S. 46, 63 (1989) 
(precedents hold “that pretrial seizures of expressive materials 
could only be undertaken pursuant to a procedure designed to 
focus searchingly on the question of obscenity” (emphasis 
added) (internal quotation marks and multiple citations omit- 
ted)); New York v. P.J. Video, 475 U.S. 868, 873 (1986) (ju- 

26 

dicial determination relates to question of “obscenity” (multi- 
ple citations omitted)). 

Thus, Freedman v. Maryland held that a state board of 
censors had the burden of securing a prompt judicial decision 
confirming an order prohibiting exhibition of a film. 380 
U.S. 51 (1965). Southeastern Promotions v. Conrad applied 
the same requirement to a municipal review board authorized 
to determine which stage productions could, based on their 
content, appear at municipal theaters. 420 U.S. 546 (1975). 
See also Vance v. Universal Amusement Co., 445 U.S. 308 
(1980) (per curiam) (invalidating statute permitting seizure of 
films based on showing that theater previously screened ob- 
scene materials when, inter alia, statute failed to guarantee 
prompt judicial determination on question of obscenity); 
United States v. Thirty-Seven Photographs, 402 U.S. 363 
(1971) (imposing prompt judicial determination requirement 
upon customs regulation authorizing seizure of “obscene or 
immoral” imported materials); Blount v. Rizzi, 400 U.S. 410 
(1971) (invalidating statute authorizing Postmaster General to 
seize obscene materials for failure to guarantee prompt judi- 
cial determination); Teitel Film Corp. v. Cusack, 390 U.S. 
139 (1968) (per curiam) (invalidating ordinance that banned 
exhibition without approval of board of censors but did not 
provide for prompt judicial determination). 

In contrast to these decisions addressing content-based 
censorship schemes, this Court did not impose the “prompt 
judicial determination” requirement when it reviewed an 
adult-business licensing ordinance in FW/PBS, Inc. v. City of 
Dallas, 493 U.S. 215 (1990). Justice O’Connor’s opinion for 
the plurality in FW/PBS recognized that “the city does not 
exercise discretion by passing judgment on the content of any 
protected speech. Rather, the city reviews the general qualifi- 
cations of each license applicant, a ministerial action that is 
not presumptively invalid.” Id. at 229. Thus, “the licensing 
scheme * * * does not present the grave ‘dangers of a censor- 
ship system.’” Id. (quoting Freedman, 380 U.S. at 58). The 

27 

plurality accordingly concluded that the First Amendment 
requires a municipality only to guarantee the “possibility” or 
“availability” of “prompt judicial review,” 493 U.S. at 228 
(emphasis added), rather than, as was required in Freedman 
and its progeny, a “prompt judicial determination,” 380 U.S. 
at 60 (emphasis added).8 The plurality’s conclusion followed 
directly from Southeastern Promotions and Freedman, which 
reasoned that the “prompt judicial determination requirement” 
rests on essentially the same ground as the procedural safe- 
guard, not applicable to licensing schemes, requiring censors 
to institute judicial proceedings to confirm their decisions. 
Southeastern Promotions, 420 U.S. at 560; Freedman, 380 
U.S. at 58. 

The Waukesha ordinance makes “prompt judicial review” 
“available” to adult businesses, as required by the FW/PBS 
plurality. Under the time limits set by the ordinance, the City 
will complete its review of a renewal application, both as an 
initial matter and on administrative appeal, within fifty-one 
days. The ordinance provides that a renewal application 
should be submitted at least sixty days before the license ex- 
pires. Because the adult business’s essentially pro forma no- 
tice of administrative appeal takes almost no time to prepare 
and file, the applicant is assured that its license will remain in 
effect throughout the administrative process. Once that proc- 
ess is completed, if the City determines not to renew the li- 
cense, the applicant may proceed immediately to court where, 
as we explain below, it may seek a restraining order requiring 
that the license remain in effect.9 The ordinance thus guaran- 

8 Thus, although the FW/PBS plurality described this procedural 
safeguard as “essential,” it did not conclude that, in the unique 
context of municipal licensing, “prompt judicial review” means the 
issuance of a decision on a fixed, accelerated timetable. 

9 Section 8.195 thus stands in contrast to other statutory provisions, 
under which there is no right to judicial review at all. E.g., Wis. 
Stat. §§ 227.52 (listing state administrative decisions not governed 

28 

tees the availability of judicial review, and provides that re- 
view will be available “promptly.” 

10 

2. THE TWO CONCERNS UNDERLYING THE “PROMPT 

JUDICIAL DETERMINATION” REQUIREMENT ARE 

INAPPOSITE HERE. 

There is no basis to retreat from the view of the FW/PBS 
plurality and extend the “prompt judicial determination” re- 
quirement to encompass appeals from municipal licensing 
rulings. This Court adopted that requirement not because the 
First Amendment guarantees an adult business the right to 
engage in expression until a court rules to the contrary, as Pe- 
titioner mistakenly suggests, but rather as a prophylactic 
measure. Two specific concerns underlie the Court’s deci- 
sions. First, absent a guarantee of a prompt judicial determi- 
nation, exhibitors could engage in self-censorship, deterred 
from presenting their works to censors in the first instance. 
Because the administrative process must not “have a discour- 
aging effect on the exhibitor,” “the procedure must * * * as- 
sure a prompt final judicial decision, to minimize the deter- 
rent effect of an interim and possibly erroneous denial of a 
license.” Freedman, 380 U.S. at 59; see also Southeastern 

by review procedures of the State Administrative Procedure Act), 
893.80(4) (providing that no suit can be brought against certain 
municipal officers, agents or employees “for acts done in the exer- 
cise of legislative, quasi-legislative, judicial or quasi-judicial func- 
tions”). See also Blount v. Rizzi, 400 U.S. 410 (1971) (invalidating 
statute that failed to provide any avenue for judicial review). 

10 The judicial review procedures of WMC § 8.195 are at least as 
solicitous of the interests of adult businesses as those provided by 
other municipalities. Accepting Petitioner’s argument accordingly 
would cut a very wide swath through the administrative practice of 
virtually every city and town in the country. See, e.g., Alpharetta, 
GA Mun. Ord. 12-126 to -129; Anchorage, AK Code 
§ 10.40.050(I), (L); Brownwood, TX Mun. Ord. § 158.508; Duluth, 
GA Code ch. 7, art. 14, §§ 7-605, 7-616 to -625; Duluth, MN Code 
ch. 5, art. IV, §§ 5-19, -22; Springdale, OH Mun. Ord. § 120.14. 

29 

Promotions, 420 U.S. at 561 (“And if judicial review is made 
unduly onerous, by reason of delay or otherwise, the board’s 
determination in practice may be final.”). Second, censors 
would be prone to determining erroneously that expression 
was not constitutionally protected, an inquiry that lies within 
the unique provenance of the courts. “The teaching of our 
cases is that, because only a judicial determination in an ad- 
versary proceeding ensures the necessary sensitivity to free- 
dom of expression, only a procedure requiring a judicial de- 
termination suffices to impose a valid final restraint.” 
Freedman, 380 U.S. at 58; see also Southeastern Promotions, 
420 U.S. at 560-61 (“An administrative board assigned to 
screening state productions – and keeping off stage anything 
not deemed culturally uplifting or healthful – may well be less 
responsive than a court, an independent branch of govern- 
ment, to constitutionally protected interests in free expres- 
sion.”). 

Petitioner cannot establish that either of the concerns that 
underlie the “prompt judicial determination” requirement is 
present in this context, in which a municipality does not pur- 
port to make any determination regarding whether expression 
is constitutionally protected and in fact provides substantial 
procedural protections throughout the administrative process 
(including, but hardly limited to, the availability of prompt 
judicial review). 

a. Self-censorship. 

An ordinance such as WMC § 8.195 does not present the 
risk that an applicant will be deterred from pursuing a license. 
As the plurality opinion in FW/PBS squarely concludes, “The 
license applicants * * * have much more at stake than did the 
motion picture distributor considered in Freedman, where 
only one film was censored. Because the license is the key to 
the applicant’s obtaining and maintaining a business, there is 
every incentive for the applicant to pursue a license denial 
through court.” 493 U.S. at 229-30. Compare Freedman, 

30 

380 U.S. at 59 (“The exhibitor’s stake in any one picture may 
be insufficient to warrant a protracted and onerous course of 
litigation.”). Indeed, Petitioner seems to recognize that an 
adult business will have extraordinary incentives to pursue 
both administrative and judicial review: “under a licensing 
scheme not just one or a few expressive works are at stake, 
but rather an entire ongoing” enterprise. Pet. Br. 35. 

Numerous aspects of WMC § 8.195 confirm the conclu- 
sion of the FW/PBS plurality that adult businesses will not be 
deterred from applying to renew their licenses by the absence 
of a guaranteed “prompt judicial determination.” Not only do 
adult businesses have a great economic stake in applying for 
renewal because an entire commercial enterprise rather than a 
single film is at stake, but the great bulk of the legal and fac- 
tual development in the licensing process occurs, and the at- 
tendant costs are incurred, at the administrative – rather than 
judicial – level. Evidence is collected and witnesses are 
called only before the Common Council and the Appeals 
Board; the reviewing court is limited to determining whether 
the existing record provides substantial evidence for the 
City’s decision not to renew a license. Pet. App. 8a. In addi- 
tion, the only direct out-of-pocket cost – preparation of the 
record – must be borne by the City. Wis. Stat. § 68.13(2). 
The adult business knows that the burden of proof at the ad- 
ministrative stage will be on the City and that the City may 
not during the administrative proceedings challenge a ruling 
in the business’s favor. Pet. App. 80a-81a. The ordinance 
also guarantees that the City will complete its review of the 
application both as an initial matter and on appeal in less time 
– fifty-one days – than the minimum time required to submit 
the application – sixty days – at which point immediate access 
to the courts is available. See supra at 8. 

Just as important, an applicant can seek immediate relief 
from the court in the form of an order restraining termination 
of its license. Specifically, it may request “temporary relief 
pending disposition of the action or proceeding.” Wis. Stat. 

31 

§ 781.02; see also id. § 813.02(1)(a) (“a temporary injunction 
may be granted”). Of note, the most rigorous element of the 
injunctive relief test – irreparable injury – is established by 
either a prohibition on protected expression (such as a license 
denial) or a showing that the failure to grant an injunction 
would render the permanent relief sought irrelevant (as when 
a business could show that it will be forced permanently out 
of business). Werner v. A.L. Grootemaat & Sons, 259 
N.W.2d 310, 313-14 (Wis. 1977); Elrod v. Burns, 427 U.S. 
347, 372 (1976). 

11 Furthermore, if the trial court unduly de- 
lays deciding the case, the applicant may secure a writ of 
mandamus compelling the issuance of a ruling. State ex rel. 
Fireman’s Fund Ins. Co. v. Hoppmann, 240 N.W. 884 (Wis. 
1932). 

For all of these reasons, it is quite unlikely that a putative 
applicant would conclude that the failure to provide a definite 
schedule under which a court will rule on an appeal from a 
licensing determination so infects the licensing process with 
indeterminacy that it simply is not worth the bother of apply- 
ing at all. 

12 

11 Southeastern Promotions v. Conrad, 420 U.S. 546 (1975), is not 
to the contrary. In that case, the court held that the availability of 
interim judicial relief did not provide sufficient procedural protec- 
tions to satisfy the First Amendment when the underlying adminis- 
trative proceedings involved an inquiry into the content of the 
plaintiff’s production. Id. at 562. Injunctive proceedings in that 
context impermissibly imposed on the applicant the burdens of pro- 
ceeding in court and persuading the judge to issue an injunction. 
Id. But as the plurality held in FW/PBS, an applicant for a license 
to operate an adult business may be required to carry both those 
burdens. 492 U.S. at 230. 

12 There may be rare cases in which the costs of pursuing judicial 
review will prove too great for an adult business to bear. See Pet. 
Br. 45. But that does not justify a per se rule prohibiting the termi- 
nation of a license pending judicial determination. Instead, the 
relevant inquiry is whether the review scheme is such that the busi- 

32 

b. Judicial expertise. 

Nor is a “prompt judicial determination” necessary as a 
prophylactic measure on the theory that courts, rather than 
municipalities, are uniquely suited to making the kind of li- 
censing determination at issue in this case. At the outset, it is 
important to note that the Waukesha ordinance plainly pro- 
vides the right to appeal a licensing decision in court upon the 
conclusion of administrative proceedings. Absent delays by 
the applicant, an appeal therefore will be available before the 
expiration of the applicant’s license. The question accord- 
ingly is not whether judicial review should be available, but 
instead whether the courts are so singularly suited to making 
licensing determinations that the First Amendment compels 
deviating from the normal processes of judicial review. 

The courts simply do not have such special expertise in 
this context. To the contrary, the criteria for a license renewal 
are entirely content neutral and within the traditional realm of 
municipal expertise. Unlike the content-based censorship 
schemes in Freedman and its progeny, WMC § 8.195 calls on 
the City to make determinations that have nothing to do with 
whether City News & Novelty is selling constitutionally pro- 
tected expressive materials. Instead, the ordinance requires a 

ness will be deterred from applying for renewal in the first instance. 
Petitioner’s much broader reading of the First Amendment would 
mean that adult businesses could not be closed even pending appeal 
in the courts – because they may not be able to afford those costs 
either – and (as we discuss below) would apply equally to prevent 
closure pending judicial review based on the adult business’s fail- 
ure to comply with innumerable generally applicable laws, such as 
the failure to pay taxes or to maintain sanitary conditions. Cf. 
Young v. American Mini Theatres, 427 U.S. 50, 78 (1976) (Powell, 
J., concurring) (“The inquiry for First Amendment purposes is not 
concerned with economic impact; rather, it looks only to the effect 
of this ordinance upon freedom of expression. * * * 
At most the 

impact of the ordinance on these interests is incidental and mini- 
mal.”). 

33 

determination whether, for example, minors were on the 
premises of City News & Novelty and whether its customers 
were engaging in sex acts on the premises. The City thus en- 
acted WMC § 8.195 with “neither the purpose or effect of 
imposing a limitation or the restriction on the content of any 
communicative materials,” but instead to “combat and curb 
the adverse secondary effects brought on by adult oriented 
establishments.” Pet. App. 97a. As this Court held in City of 
Renton v. Playtime Theatres, those are matters of municipal 
concern and expertise. 475 U.S. 41, 50 (1986); see also State 
ex rel. Ruffalo v. Common Council of the City of Kenosha, 
157 N.W.2d 568 (Wis. 1968) (sustaining tavern license revo- 
cation on basis of secondary effects). Accord Graff v. City of 
Chicago, 9 F.3d 1309, 1333 (CA7 1993) (en banc) (Flaum, J., 
concurring) (“Clearly included among such nonthreatening 
schemes are those that only ask and allow administrators to 
make the kind of determinations for which they are especially 
suited; e.g. questions about city aesthetics, traffic flow or City 
Code violations. Certainly, the Ordinance is in that category 
of innocuous schemes which a specially mandated judicial 
review mechanism would only hamper through inappropriate 
and inefficient second-guessing of legitimate administrative 
decisions.”). 

The fact that violations of Section 8.195 may result in clo- 
sure of an adult business does not render the ordinance a 
content-based speech restriction requiring an immediate de- 
termination on appeal. In Arcara v. Cloud Books, in which 
this Court approved the use of a nuisance action to close an 
adult bookstore, this Court rejected the adult business’s ar- 
gument that “the effect of the statutory closure remedy 
impermissibly burdens its First Amendment protected book- 
selling activities.” 478 U.S. 697, 706 (1986). The Court ex- 
plained that “this argument proves too much, since every civil 
and criminal remedy imposes some conceivable burden on 
First Amendment protected activities,” as when money that 
otherwise would be spent on advertising must go to pay a 

34 

civil damages award and when a thief who would otherwise 
publish is sent to prison. Id. Thus, “the imposition of the 
closure order has nothing to do with any expressive conduct 
at all.” Id. at 706 n.2; see also id. at 707 (“The legislation 
providing the closure sanction was directed at unlawful con- 
duct having nothing to do with books or other expressive ac- 
tivity.”). Justice O’Connor similarly explained in her concur- 
ring opinion that “[a]ny other conclusion would lead to the 
absurd result that any government action that had some con- 
ceivable speech-inhibiting consequences, such as the arrest of 
a newscaster for a traffic violation, would require analysis 
under the First Amendment.” Id. at 708. 

Relatedly, Waukesha’s interest in enforcing the ordinance 
“is unrelated to the suppression of free expression.” Barnes 

v. Glen Theatre, 501 U.S. 560, 570 (1991) (Rehnquist, C.J., 
joined by O’Connor and Kennedy, JJ.); id. at 572 (“The 
statutory prohibition is not a means to some greater end, but 
an end in itself.”); id. at 575 n.3 (Scalia, J., concurring) (“A 
law is ‘general’ for the present purposes if it regulates con- 
duct without regard to whether that conduct is expressive.”). 
Instead, the ordinance seeks only to eliminate “the secondary 
effects of such theaters on the surrounding community,” 
which is a “vital governmental interest[].” City of Renton v. 
Playtime Theatres, 475 U.S. 41, 47, 50 (1986); see also City 
of Erie v. Pap’s A. M., 120 S. Ct. 1382, 1395 (2000) 
(O’Connor, J., joined by Rehnquist, C.J., and Kennedy and 
Breyer, JJ.) (“efforts to protect public health and safety are 
clearly within the city’s police powers”); Barnes v. Glen 
Theatre, 501 U.S. 560, 568 (1991) (Rehnquist, C.J., joined by 
O’Connor and Kennedy, JJ.) (“[T]he statute’s purpose of 
protecting societal order and morality is clear from its text 
and history.”); id. at 569 (“The traditional police power of the 
States is defined as the authority to provide for the public 
health, safety, and morals, and we have upheld such a basis 
for legislation.” (citing Paris Adult Theatre I v. Slaton, 413 
U.S. 49 (1973))); Young v. American Mini Theatres, 427 U.S. 

35 

50, 80 (1976) (Powell, J., concurring) (“Without stable neigh- 
borhoods, both residential and commercial, large sections of a 
modern city quickly can deteriorate into an urban jungle with 
tragic consequences to social, environmental, and economic 
values.”). 

13 

Even more directly than in City of Erie v. Pap’s A. M., in 
which the Court sustained an ordinance banning public nudity 
that effectively prohibited totally nude dancing and admit- 
tedly “may not greatly reduce these secondary effects,” the 
Waukesha ordinance is thus valid because it “is aimed at 
combating crime and other negative secondary effects caused 
by the presence of adult entertainment establishments * * * 
and not at suppressing [any] message.” 120 S. Ct. 1382, 
1392, 1397 (2000) (opinion of O’Connor, J., joined by 

13 Well-reasoned opinions of the courts of appeals support the same 
conclusion. E.g., TK’s Video v. Denton County, Tex., 24 F.3d 705, 
707 (CA5 1994) (per Higginbotham, J.) (“The order, by its own 
terms, combats pernicious side effects of adult businesses such as 
prostitution, disease, street crime, and urban blight. It does not cen- 
sor, prevent entrepreneurs from marketing, or impede customers 
from obtaining communicative material.”); Graff v. City of Chi- 
cago, 9 F.3d 1309, 1331 (CA7 1993) (en banc) (Flaum, J., concur- 
ring) (“Moreover, uncritically extending Freedman’s reach to strike 
down the Ordinance for lack of judicial review, by attributing broad 
significance to language in later cases that dealt with schemes sub- 
stantially dissimilar from the one at issue here, would embark us 
upon a senseless departure from the core logic undergirding the 
holdings in Freedman and its progeny; for neither the purpose nor 
effect of the Ordinance, unlike the laws challenged in that line of 
cases, is to involve the licensor in any decisionmaking of constitu- 
tional proportion.”); id. at 1335 (Ripple, J., concurring) (“The con- 
cerns the Court voiced in * * * FW/PBS are not present here. The 
Chicago ordinance sets forth criteria according to which a permit 
must be evaluated. Furthermore, there is a time limit within which 
city officials must respond to the application. In no way does the 
ordinance place unfettered discretion in the hands of city officials. 
As a result, there is no risk of either hidden or self censorship.”). 

36 

Rehnquist, C.J., and Kennedy and Breyer, JJ.). Here, as 
there, “[t]he State’s interest in preventing harmful secondary 
effects is not related to the suppression of expression. In try- 
ing to control the secondary effects of nude dancing, the ordi- 
nance seeks to deter crime and the other deleterious effects 
caused by the presence of such an establishment in the neigh- 
borhood.” Id. at 1393. The First Amendment accordingly 
gives municipalities a “freer hand” in this area. Id. at 1396 
(citing Texas v. Johnson, 491 U.S. 397, 406 (1989)). 

14 

Several other aspects of the administrative process guar- 
anteed by WMC § 8.195 minimize the risk of an erroneous 
determination prejudicing an adult business. As the lower 
courts squarely held, the criteria for renewal set forth in the 
ordinance are clear and objective. Pet. App. 15a, 59a. The 
adult business has the right not only to submit evidence and 
legal argument, but also to call, subpoena, and cross-examine 
witnesses. Wis. Stat. § 68.11(2); WMC § 2.11(3). (Peti- 
tioner’s statement that “the ordinance does not provide any 
tools of discovery by which the licensee can challenge the 
credibility of the witnesses against him or her,” Pet. Br. 38, is 
thus simply wrong.) The adult business, but not the City, may 
appeal licensing determinations at any stage of the adminis- 
trative process, and is assured that the administrative review 
will conclude prior to the expiration of its license. Indeed, the 
adult business has the right to select (as City News & Novelty 
did in this case) to pursue not just one but two administrative 

14 The fact that WMC § 8.195 is directed only at the secondary ef- 
fects of adult businesses rather than the expressive nature of their 
wares is of course relevant for another important reason as well. 
This Court’s precedents firmly establish that such a content-neutral 
regulation – unlike, for example, the censorship schemes in Freed- 
man and Southeastern Promotions – presents far fewer risks that 
the government will seek to suppress unpopular speech. Turner 
Broadcasting Sys. v. FCC, 520 U.S. 180, 213 (1997). 

37 

appeals before impartial decisionmakers prior to proceeding 
to court. 

As a matter of both expertise and separation of powers, 
the Wisconsin courts thus quite properly apply a deferential 
standard of review in reviewing a licensing determination. In 
a certiorari action, the court does not take new evidence or 
reach de novo factual conclusions. Instead, it reviews the 
administrative record to determine whether the municipality’s 
factual determinations are supported by substantial evidence, 
Pet. App. 8a, the standard traditionally applied when the judi- 
ciary recognizes that another body has the expertise to reach 
factual conclusions and that the role of the courts is to check 
capricious administrative action. The court also confirms that 
the municipality’s determinations were not “arbitrary, oppres- 
sive or unreasonable,” id., again inquiries that bespeak defer- 
ence rather than judicial expertise. Cf. Chevron U.S.A. v. 
NRDC, 437 U.S. 837 (1984). 

15 

To be sure, the judiciary has expertise superior to a mu- 
nicipality in one respect: resolving constitutional challenges 
to the ordinance itself, as opposed to the fact-bound inquiries 
into the adult business’s compliance with the ordinance. But 
the exhaustion requirements of Section 8.195 do not apply to 
constitutional challenges and, indeed, such challenges cannot 
even be brought in the administrative process. Pet. App. 56a 
(citing Kmiec v. Town of Spider Lake, 211 N.W.2d 471, 473- 
74 (Wis. 1973)). As Petitioner’s own amici recognize, “All 

15 Contrary to Petitioner’s suggestion, Br. 35, this case is not akin to 
Southeastern Promotions v. Conrad, in which municipal officials 
were called upon to engage in the “appraisal of facts, the exercise 
of judgment, and the formation of an opinion.” 420 U.S. 546, 554 
(1975) (quoting Cantwell v. Connecticut, 310 U.S. 296, 305 
(1940)). As the Court explained in an accompanying footnote, the 
appraisals, judgments, and opinions in Southeastern Promotions 
related to “the content * * * of the production.” Id. 554 n.7 (em- 
phasis added). 

38 

litigants possess the right to challenge a statute – even if it 
does not impose a prior restraint – on constitutional grounds,” 
by filing a plenary action in court. Liberty Project Br. 13 n.5. 
Petitioner is therefore wrong in arguing that in the case of 
such a constitutional challenge the ordinance “forces the de- 
nied applicant to sink valuable time and energy into a point- 
less effort, and works a postponement of the only review that 
can provide relief, judicial review.” Pet. Br. 39-40. 

Specifically, an adult business has at least two avenues to 
bring such a constitutional challenge directly in court without 
any delay whatsoever. City News & Novelty has in fact used 
both avenues to challenge WMC § 8.195, although it does not 
acknowledge either in its brief. First, an adult business can 
bring a declaratory judgment action in state court. See Wis. 
Stat. § 806.04. Thus, in 1990, City News & Novelty brought 
such an action challenging the constitutionality of Section 

8.195’s requirement that booths for viewing adult films have 
open entrances. See Resp. Lodging, vol. I, tab 15. Waukesha 
prevailed in both the trial and appellate courts. See City News 
& Novelty, Inc. v. City of Waukesha, 487 N.W.2d 316, 317 
(Wis. Ct. App. 1992). Second, an adult business can bring an 
action in federal court under 42 U.S.C. § 1983. See generally 
Patsy v. Board of Regents, 457 U.S. 496, 500-01 (1982) (no 
administrative exhaustion requirement applies to Section 
1983 actions); see also Wis. Stat. § 68.01 (remedies under 
statutory scheme “shall not be exclusive”). Indeed, while the 
administrative proceedings were pending in this very case, 
City News & Novelty brought such a suit in the Eastern Dis- 
trict of Wisconsin raising a variety of constitutional chal- 
lenges to WMC § 8.195. See Resp. Lodging, tab 16. Imme- 
diately after the case was assigned to a district judge, Peti- 
tioner elected to voluntarily dismiss its suit and to bring all 

39 

those claims on appeal from the City’s subsequent licensing 
determination. 

16 

3. PETITIONER’S REMAINING ARGUMENTS ARE 

UNAVAILING. 

The various reasons asserted by Petitioner for adopting a 
mandatory stay of licensing determinations in fact support 
only the availability of judicial review, which WMC § 8.195 
indisputably provides. Petitioner’s arguments do not justify 
disabling a municipality’s orderly implementation of a duly 
rendered determination that an adult business is, for reasons 
entirely unrelated to the nature of its expression, not entitled 
to a license to operate. For example, Petitioner maintains that 
the grounds invoked by the municipality may not be suffi- 
cient, as a constitutional matter, to justify the sanction of clo- 
sure. But as we explained supra at 37-38, a licensee may at 
any time go directly to court to bring a facial challenge to the 
grounds that will justify nonrenewal. Even more important 
for present purposes, Petitioner’s arguments simply establish 
that in this area, like all others, a municipality may make a 
mistake that should be subject to judicial review. 

Petitioner’s remaining arguments rest on a series of in- 
supportable, gratuitous insults regarding the fidelity of every 
level of municipal government to the Constitution and to the 
rule of law. Without citation to a wisp of support, much less 
actual record evidence, Petitioner maintains that the Constitu- 
tion requires constant judicial superintendence over local de- 
cisionmaking because municipal officials are “institutionally 

16 Exhaustion of administrative remedies is also not required if a 
business seeks to contest the City’s determination that it must have 
a license to operate. And the licensing ordinance would be entirely 
inapplicable if an adult business located in Waukesha sought to sell 
products through the Internet or by telephone. If an adult business 
has no storefront visited by customers, the risks of secondary ef- 
fects are reduced. Accordingly, Respondent does not read WMC 
§ 8.195 to apply in that situation. 

40 

more concerned with enforcement than with protecting con- 
stitutional rights” and “disregard[] all constitutional protec- 
tions.” Pet. Br. 32, 34. 

The point need not be belabored. It is enough here to note 
the clear and uncontradicted record in this case, in which 
Waukesha officials accommodated every conceivable request 
by City News & Novelty and, indeed, agreed not to withdraw 
Petitioner’s license until its constitutional challenge was ad- 
dressed in the state circuit court. Here, as in Arcara v. Cloud 
Books, “there is no suggestion on the record before us that the 
closure of respondents’ bookstore was sought under [ordi- 
nance] as a pretext for the suppression of First Amendment 
protected material.” 478 U.S. 697, 707 (1986). Any such al- 
legation would, in any event, be brought instead as “a claim 
of selective prosecution.” Id. (citing Wayte v. United States, 
470 U.S. 598 (1985)); see also id. (O’Connor, J., concurring) 
(concluding that it would be improper to rest decision on un- 
supported allegations of bias because “there is no suggestion 
in the record or opinion below of such pretextual use of” nui- 
sance statute). 

4. ACCEPTING PETITIONER’S ARGUMENT WOULD 

CAUSE SUBSTANTIAL, UNWARRANTED HARM TO 

IMPORTANT MUNICIPAL AND JUDICIAL INTERESTS. 

There are additional important reasons for not extending 
the “prompt judicial determination” requirement into the 
context of content-neutral municipal licensing schemes. 
Cases such as Freedman and Southeastern Promotions fo- 
cused on the interests of speakers because a “prompt judicial 
determination” requirement did not involve any risk that the 
public interest or the operation of the courts would be under- 
mined. Not so here. Petitioner’s theory, if accepted, would 
seriously interfere with municipalities’ efforts to combat the 
secondary effects of adult businesses. See City of Erie, 529 
U.S. at 1396 (“the government should have sufficient leeway 
to justify such a law based on secondary effects”); Young v. 
American Mini Theatres, 427 U.S. 50, 71 (1976) (city’s inter- 

41 

est in combating secondary effects is “one that must be ac- 
corded high respect”). Moreover, because Petitioner’s argu- 
ment would apply to every kind of regulation of every kind of 
expressive business, it would flood local courts with claims 
that as a federal constitutional matter must be given “first pri- 
ority.” 

Moreover, on Petitioner’s view, the Constitution grants an 
adult business a per se right to operate until a court says oth- 
erwise. Petitioner thus seeks a radical expansion of the 
Freedman line of cases. The most that the Court has ever re- 
quired is a “prompt judicial determination” on review of an 
act of censorship. It has never required, as Petitioner urges, 
that the government “stay” implementation of its decision 
pending a ruling by the courts. Here, by contrast, Petitioner 
contends that the City’s determination that, for reasons totally 
unrelated to the content of any speech, City News & Novelty 
is not entitled to an adult-business license must be stayed until 
a Wisconsin circuit court confirms that substantial evidence 
supports the City’s determination that City News & Novelty 
had engaged in the nine different ordinance violations that 
were established in the administrative proceedings. (That 
notwithstanding that several of the violations were proven by 
sworn testimony of police officers, while others were duly 
confirmed by convictions of officers of City News & Novelty 
for ordinance violations.) In the meantime, the City’s sub- 
stantial interest in enforcing its laws, and specifically in 
avoiding the secondary effects of adult businesses, would be 
substantially undermined. 

When targeted efforts to combat secondary effects fail – 
as in this case, in which Petitioner violated WMC § 8.195 and 
the City found minors on Petitioner’s premises and customers 
committing sex acts on the premises – the municipality has an 
obligation to withdraw the adult business’s license to operate. 
On Petitioner’s alternate view, the business effectively has a 
free pass to violate the law, knowing that it cannot be closed 
until not only the administrative but also the judicial process 

42 

is completed. It therefore is not true, as Petitioner maintains, 
that “[w]ith a guaranteed stay throughout the first level of ju- 
dicial review, * * * the City’s inability to control the pace of 
litigation in the circuit court, which the court below found 
determinative, ceases to be a concern.” Pet. Br. 47 (emphasis 
omitted). 

17 

The total illogic of Petitioner’s reading of Freedman and 
its progeny is also plain when it is applied to the context of an 
initial application for a license to operate. Such putative li- 
censees have every much as great a First Amendment interest 
as existing adult businesses. If Petitioner is correct that an 
adult business will be deterred by the prospect of having to 
proceed through the administrative and judicial processes 
without a license to operate, then presumably a municipality 
must grant a license to everyone who requests one until a 
court says otherwise. But that simply cannot be the case. 

The awesome expanse of Petitioner’s proposed holding 
makes these concerns graver still. If adopted, the same rule 
would necessarily apply to all other content-neutral regula- 
tions. Zoning is the most obvious, as when a City seeks to 
restrict adult businesses to a particular area or class of prop- 
erty. But it is hard to see how the government could close an 
adult business for violating any of innumerable, generally ap- 

17 It is for this reason that Petitioner is also wrong to argue that a 
municipality may, in certain limited and extremely urgent circum- 
stances, bring a state-law nuisance action in an attempt to close an 
adult business. Pet. Br. 41-42. The First Amendment does not im- 
pose such an obligation on a municipality. Instead, if an adult 
business can make a sufficient showing that the administrative li- 
censing determination was erroneous, it may (as was explained su- 
pra) secure an order restraining the City from terminating the li- 
cense. Neither logic nor precedent requires that a municipality in- 
definitely stay its hand in this manner. Indeed, the plurality opinion 
in FW/PBS squarely held that a municipality need not bear the bur- 
den of going to court simply to deny a license application. 493 
U.S. at 230. 

43 

plicable laws. E.g., Wis. Stat. § 134.71 (requiring dealers in 
second-hand goods, who frequently resell books and movies, 
to be licensed as measure designed to combat sale of stolen 
property). Thus, nothing in the First Amendment calls for 
more prompt or searching judicial review of a municipal de- 
termination that minors were found on the premises of an 
adult business, see WMC § 8.195(10)(c), than determinations 
under the tax code or the sanitation laws. Cf. California v. 
Grace Brethren Church, 457 U.S. 393, 417 n.36 (1982). Of 
equal concern, the same broad prohibition on closure would 
also apply, a fortiori, to every other kind of expressive busi- 
ness, including publishers, newsstands, movie theaters, and 
video rental stores, effectively working a wholesale transfer 
of this fundamental area of municipal control to the state 
courts. E.g., Graff v. City of Chicago, 9 F.3d 1309 (CA7 
1993) (en banc) (applying Freedman and FW/PBS to licens- 
ing scheme for newsstands); cf. Young v. American Mini 
Theatres, 427 U.S. 50, 62 (1976) (although “adult films may 
only be exhibited commercially in licensed theaters,” “that is 
also true of all motion pictures”). Petitioner’s argument also 
would apply not just to purely adult businesses, but also to 
those that, like City News, sell many other products such as 
drug paraphernalia. 

Finally, Petitioner’s proposed rule would create a perverse 
and counterproductive set of incentives in all these areas. Li- 
cense applicants would invariably seek to delay the adminis- 
trative process, safe in the knowledge that they will have a 
constitutional right to operate until the case is eventually de- 
cided in court. In this case, for example, once Waukesha an- 
nounced that it would not withdraw City News & Novelty’s 
license pending judicial review (equivalent to the mandatory 
stay Petitioner urges this Court to adopt), Petitioner engaged 
in a variety of delay tactics, both on administrative appeal and 
in court. See supra at 11-12. At the very least, any applicant 
that ever considered not filing a judicial appeal would cer- 
tainly do so if Petitioner’s approach were adopted, seriously 

44 

overburdening the courts. Furthermore, Petitioner’s proposed 
rule would give municipalities a substantial incentive to pro- 
vide fewer procedural protections to license applicants in or- 
der to move the matter immediately into court, shortening 
administrative hearings and opportunities for briefing. That is 
a particular problem when, as in Wisconsin, a reviewing court 
must consider the matter based exclusively on the record de- 
veloped in the administrative proceedings. Pet. App. 8a. 

CONCLUSION 

For the foregoing reasons, the judgment of the Court of 
Appeals of Wisconsin should be affirmed. 

Respectfully submitted, 

CURT R. MEITZ 
VINCENT D. MOSCHELLA 
MILES W.B. EASTMAN 
OFFICE OF THE CITY ATTORNEY 
City of Waukesha 
201 Delafield St. 

Waukesha, WI 53188 
(262) 524-3520 
THOMAS C. GOLDSTEIN 
(Counsel of Record) 
AMY HOWE 
THOMAS C. GOLDSTEIN, P.C. 
4607 Asbury Pl., N.W. 
Washington, DC 20016 
(202) 237-7543 

Counsel for Respondent 

Dated: October 26, 2000 

APPENDIX 

8.195 Adult Oriented Establishments 

(Preamble to Sec. 8.195 Rep. & Recr. #28-95) 
WHEREAS, it is a lawful purpose of the Common Council 
for the City of Waukesha to enact regulatory ordinances pro- 
tecting and promoting the general welfare, health and safety 
of its citizens; and 

WHEREAS, the City is empowered to enact such ordi- 
nances pursuant to the Constitution and Laws of the State of 
Wisconsin; and 

WHEREAS, the Common Council, based on the experi- 
ence of other cities including Seattle and Renton, Washing- 
ton, and Detroit, Michigan, has previously determined as set 
forth in sec. 22.50 of the Waukesha Municipal Code that adult 
oriented establishments can contribute to the impairment of 
the character and quality of surrounding residential neighbor- 
hoods, and contribute to the decline and the value of sur- 
rounding properties; and 

WHEREAS, further studies in other communities across 
the United States such as St. Paul, Minnesota; Indianapolis, 
Indiana; Austin, Texas and Phoenix, Arizona have docu- 
mented that the secondary effects of adult oriented establish- 
ments affect property values, contribute to physical deteriora- 
tion and blight, have a deleterious effect on both existing 
businesses around them and surrounding residential areas, 
including increased transiency, increased levels of criminal 
activities including prostitution, rape, assaults and other sex 
related crimes; and 

WHEREAS, the Common Council believes that the expe- 
riences and studies of other communities set forth herein are 
relevant in addressing the secondary effects adult oriented 
establishments can have upon areas surrounding such estab- 
lishments in the City of Waukesha; and 

Appendix 2 

WHEREAS, many adult oriented establishments install 
booths with doors in which patrons can view adult oriented 
movies or video tapes or films or view other forms of adult 
entertainment; and 

WHEREAS, it is has been found in Milwaukee and 
Kenosha Counties, Wisconsin; Chattanooga, Tennessee; 
Newport News, Virginia; and Marion County, Indiana, to 
name a few locales, that the viewing booths in adult oriented 
establishment have been and are being used by patrons of said 
establishments for engaging in sexual acts, particularly be- 
tween males, including but not limited to intercourse, sod- 
omy, oral copulation and masturbation, resulting in unsafe 
and unsanitary conditions in said booths; and 

WHEREAS, Acquired Immune Deficiency Syndrome 
(AIDS) is a sexually transmitted disease which destroys the 
body's immune system, is always fatal, and has no known 
cure; and 

WHEREAS, when this ordinance was originally enacted 
in 1989, statistics from the State of Wisconsin had indicated 
that as of July 25, 1986, 96 cases of AIDS were reported in 
the State including 54 that resulted in death and that Wiscon- 
sin could expect a ten fold increase in reported cases between 
1986 and 1991; and 

WHEREAS, as of January 1, 1995, the State of Wisconsin 
Department of Health and Social Services, Division of Public 
Health is projecting between 900-1300 new cases of AIDS 
during 1995 and 1996. 

WHEREAS, the viral agents responsible for AIDS and 
other sexually transmitted diseases have all been isolated at 
one time or another from semen; and 

WHEREAS, the City of Waukesha desires to combat and 
curb the adverse secondary effects brought on by adult ori- 
ented establishments and to protect the health, safety, and 
welfare of its citizens from increased crime, and to preserve 
and stabilize the neighborhoods of the City of Waukesha, and 

Appendix 3 

to minimize the transmission of sexual diseases including 
AIDS; and 

WHEREAS, although the provisions of this ordinance 
have neither the purpose or effect of imposing a limitation or 
restriction on the content of any communicative materials, the 
Common Council deems it to be in the interests of the City of 
Waukesha to provide for licensing and regulation of adult ori- 
ented establishments including, but not limited to, adult book- 
stores, adult mini-motion picture establishments, adult motion 
picture theaters and adult cabarets to combat and curb the 
secondary effects of such establishments. 

NOW, THEREFORE, the Common Council of the City of 
Waukesha do ordain as follows: 

ADULT ORIENTED ESTABLISHMENTS. 

(1) DEFINITIONS: 

Adult Bookstore. An establishment which has a facil- 
ity or facilities, including but not limited to booths, cubi- 
cles, rooms or stalls, for the presentation of "adult enter- 
tainment", as defined below, including adult oriented 
films, movies or live performances for observation by pa- 
trons therein; or an establishment having as a substantial 
or significant portion of its stock in trade, for sale, rent, 
trade, lease, inspection or viewing, books, films, video 
cassettes, magazines or other periodicals, which are dis- 
tinguished or characterized by their emphasis on matters 
depicting, describing or relating to specified anatomical 
areas or specified sexual activities as defined below. 

Adult Cabaret. A cabaret which features topless danc- 
ers, strippers, male or female impersonators or similar 
entertainers. 

Adult Entertainment. Any exhibition of any motion 
picture, live performance, display or dance of any type, 
which has as its dominant theme or is distinguished or 
characterized by an emphasis on any actual or simulated 

Appendix 4 

specified sexual activities or specified anatomical areas as 
herein defined. 

Adult Mini-Motion Picture Theater. An enclosed 
building with a capacity of less than 50 persons used for 
presenting material having as its dominant theme or dis- 
tinguished or characterized by an emphasis on matters de- 
picting, describing or relating to specified sexual activities 
or specified anatomical areas as herein defined for obser- 
vation by patrons therein. 

Adult Motion Picture Theater. An enclosed building 
with a capacity of 50 or more persons used for presenting 
material having as its dominant theme or distinguished or 
characterized by an emphasis on matters depicting, de- 
scribing or relating to specified sexual activities or speci- 
fied anatomical areas as defined below for observation by 
patrons therein. 

Adult Oriented Establishment. Any premises includ- 
ing, but not limited to, "adult bookstores", "adult motion 
picture theaters", "adult mini-motion picture establish- 
ments" or "adult cabarets." It further means any premises 
to which public patrons or members are invited or admit- 
ted and which are so physically arranged so as to provide 
booths, cubicles, rooms, compartments, or stalls separate 
from the common area of the premises for the purposes of 
viewing adult oriented motion pictures, or wherein an en- 
tertainer provides adult entertainment to a member of the 
public, a patron or a member, whether or not such adult 
entertainment is held, conducted, operated or maintained 
for a profit, direct or indirect. "Adult Oriented Establish- 
ment" further includes without being limited to any "adult 
entertainment studio" or any premises that is physically 
arranged and used as such whether advertised or repre- 
sented as an adult entertainment studio, rap studio, exotic 
dance studio, encounter studio, sensitivity studio, model- 
ing studio, or any other term of like import. 

Appendix 5 

"Booths", "Cubicles", "Rooms", "Compartments" or 
"Stalls". Enclosures as are specifically offered to the pub- 
lic or members of an adult-oriented establishment for hire 
or for a fee as part of a business operated on the premises 
which offers as part of its business the entertainment to be 
viewed within the enclosure. This shall include, without 
limitation, such enclosures wherein the entertainment is 
dispensed for a fee, but a fee is not charged for mere ac- 
cess to the enclosure. However, "booth", "cubicle", 
"room", "compartment" or "stall" does not mean such en- 
closures that are private offices used by the owners, man- 
agers or persons employed on the premises for attending 
to the tasks of their employment, which enclosures are not 
held out to the public or members of the establishment for 
hire or for a fee or for the purpose of viewing entertain- 
ment for a fee, are not open to any persons other than em- 
ployees; nor shall this definition apply to hotels, motels or 
other similar establishments licensed by the State of Wis- 
consin pursuant to Chapter 50 of the Wisconsin Statutes. 

Council. The City Council for the City of Waukesha, 
Waukesha County, Wisconsin. 

Operators. Any person, partnership, or corporation 
operating, conducting, maintaining or owning any adult- 
oriented establishment. 

Specified Anatomical Areas. 

1. Less than completely and opaquely covered human 
genitals, pubic region, buttocks, and female breasts below 
the point immediately above the top of the areola. 

2. Human male genitals in a discernible turgid state, 
even if opaquely covered. 

Specified Sexual Activities. Simulated or actual: 

1. Showing of human genitals in a state of sexual 
stimulation or arousal. 

Appendix 6 

2. Acts of masturbation, sexual intercourse, sodomy, 
bestiality, necrophilia, sado-masochistic abuse, fellatio or 
cunnilingus. 

3. Fondling or erotic touching of human genitals, pu- 
bic region, buttocks or female breasts. 

(2) LICENSE. 

(a) Except as provided in subsection (d) below, 
from and after the effective date of this section, no 
adult oriented establishment shall be operated or 
maintained in the City without first obtaining a license 
to operate issued by the City. 

(b) A license may be issued only for one adult ori- 
ented establishment located at a fixed and certain 
place. Any person who desires to operate more than 
one adult oriented establishment must have a license 
for each. 

(c) No license or interest in a license may be trans- 
ferred to any person. 

(d) All adult oriented establishments existing at 
the time of the passage of this section must submit an 
application for a license within 60 days of the passage 
of this section. 

(3) APPLICATION FOR LICENSE. 

(a) Any person desiring to secure a license shall 
make application to the City Clerk. The application 
shall be filed in triplicate and dated by the City Clerk. 
A copy of the application shall be distributed promptly 
by the City Clerk to the City Police Department and to 
the applicant. 

(b) The application for a license shall be upon a 
form provided by the City Clerk. An applicant for a li- 
cense shall furnish the following information under 
oath: 

1. Name and address. 

Appendix 7 

2. Written proof that the individual is at 
least 18 years of age. 

3. The address of the adult oriented estab- 
lishment to be operated by the applicant. 

4. If the applicant is a corporation, the ap- 
plication shall specify the name of the corpo- 
ration, the date and state of incorporation, the 
name and address of the registered agents and 
the name and address of all shareholders 
owning more than 5% of the stock in such cor- 
poration and all officers and directors of the 
corporation. 

(c) Within 21 days of receiving an application for 
a new license or an application to renew a license, the 
City Clerk shall notify the applicant whether the ap- 
plication is granted or denied. 

(d) Whenever an application is denied, or a license 
is not renewed, the City Clerk shall advise the appli- 
cant in writing of the reasons for such action. If the 
applicant requests a hearing within 10 days of receipt 
of notification of denial, a public hearing shall be held 
within 10 days thereafter in conformity with sec. 

68.11(2), (3), Wis. Stats. A final determination stating 
the reasons therefore, together with a copy of any offi- 
cial recording or transcript of the hearing, shall be 
rendered within 20 days of the commencement of the 
hearing. Judicial review shall be governed by sec. 

68.13, Wis. Stats. 

(e) Failure or refusal of the applicant to give any 
information relevant to the application or his refusal or 
failure to appear at any reasonable time and place for 
examination under oath regarding such application or 
his refusal to submit to or cooperate with regard to any 
information required by this section shall constitute an 
admission by the applicant that he is ineligible for 

Appendix 8 

such license and shall be grounds for denial thereof by 
the City Clerk. 

(4) STANDARDS FOR ISSUANCE OF LICENSE. To 
receive a license to operate an adult oriented establishment, 
an applicant must meet the following standards: 

(a) If the applicant is an individual: 

1. The applicant must be at least 18 years 
of age. 

2. The applicant shall not have been found 
to have previously violated this section within 
5 years immediately preceding the date of the 
application. 

(b) If the applicant is a corporation: 

1. All officers, directors, and stockholders 
required to be named under par. (3)(b) shall be 
at least 18 years of age. 

2. No officer, director, or stockholder re- 
quired to be named under par. (3)(b) shall have 
been found to have previously violated this 
section within 5 years immediately preceding 
the date of the application. 

(c) If the applicant is a partnership, joint venture or 
any other type of organization where 2 or more per- 
sons have a financial interest: 

1. All persons having a financial interest in 
the partnership, joint venture or other type of 
organization shall be at least 18 years of age. 

2. No person having a financial interest in 
the partnership, joint venture or other type of 
organization shall have been found to have 
violated any provision of this section within 5 
years immediately preceding the date of the 
application. 

Appendix 9 

(5) FEES. A license fee of $250 shall be submitted with 
the application for a license. If the application is denied, 1/2 
of the fee shall be returned. 

(6) DISPLAY OF LICENSE OR PERMIT. The license 
shall be displayed in a conspicuous public place in the adult- 
oriented establishment. 

(7) RENEWAL OF LICENSE OR PERMIT. 

(a) Every license issued pursuant to this section 
will terminate at the expiration of one year from date 
of issuance, unless sooner revoked and must be re- 
newed before operation is allowed in the following 
year. Any operator desiring to renew a license shall 
make application to the City Clerk. The application 
for renewal must be filed not later that 60 days before 
the license expires. The application for renewal shall 
be upon a form provided by the City Clerk and shall 
contain such information and data given under oath or 
affirmation as is required for an application for a new 
license. 

(b) A license renewal fee of $250 shall be submit- 
ted with the application for renewal. In addition to the 
renewal fee, a late penalty of $100 shall be assessed 
against any applicant who files for a renewal less than 
60 days before the license expires. If the application is 
denied, 1/2 of the total fees collected shall be returned. 

(c) If the City Police Department is aware of any 
information bearing on the operator's qualifications, 
that information shall be filed in writing with the City 
Clerk. 

(d) The building inspector shall inspect the estab- 
lishment prior to the renewal of a license to determine 
compliance with the provisions of this ordinance. 

(e) In a zoning district in which a use licensed un- 
der this section is a nonconforming use under the 
zoning provisions of this code, no location or premises 

Appendix 10 

for which a license has been issued shall be used as an 
adult oriented establishment for one year following 
the date the nonrenewal of the license takes effect. For 
purposes of this paragraph a nonrenewal of a license 
takes effect when the licensed premises ceases opera- 
tions as an adult oriented establishment. 

(8) REVOCATION OF LICENSE. 

(a) The Council shall revoke a license or permit 
for any of the following reasons: 

1. Discovery that false or misleading in- 
formation or data was given on any application 
or material facts were omitted from any appli- 
cation. 

2. The operator or any employee of the op- 
erator violates any provision of this section or 
any rules or regulation adopted by the Council 
pursuant to this section provided, however, 
that in the case of a first offense by an operator 
where the conduct was solely that of an em- 
ployee, the penalty shall not exceed a suspen- 
sion of 30 days if the Council shall find that 
the operator had no actual or constructive 
knowledge of such violation and could not by 
the exercise of due diligence have had such 
actual or constructive knowledge. 

3. The operator becomes ineligible to ob- 
tain a license or permit. 

4. Any cost or fee required to be paid by 
this Section is not paid. 

5. Any intoxicating liquor or cereal malt 
beverage is served or consumed on the prem- 
ises of the adult oriented establishment. 

(b) The Council, before revoking or suspending 
any license or permit, shall give the operator at least 

Appendix 11 

10 days written notice of the charges against him and 
the opportunity for a public hearing before the Council 
or its designated committee as provided herein. The 
Council or its designated committee shall provide a 
written determination whether to revoke or suspend 
the license or permit within five (5) days of the public 
hearing. Any appeal from the determination of the 
Council or its designated committee shall be taken 
pursuant to secs. 68.10-68.12, Wis. Stats. 

(c) The transfer of a license or any interest in a li- 
cense shall automatically and immediately revoke the 
license. 

(d) Any operator whose license is revoked shall 
not be eligible to receive a license for one year from 
the date of revocation. No location or premises for 
which a license has been issued shall be used as an 
adult oriented establishment for six (6) months from 
the date of revocation of the license. In a zoning dis- 
trict in which a use licensed under this section is a 
nonconforming use under the zoning provisions of this 
code, no location or premises for which a license has 
been issued shall be used as an adult oriented estab- 
lishment for one year following the date the revoca- 
tion of the license takes effect. For purposes of this 
paragraph a revocation of a license takes effect when 
the licensed premises ceases operations as an adult 
oriented establishment. 

(9) PHYSICAL LAYOUT OF ADULT ORIENTED 
ESTABLISHMENT. Any adult oriented establishment having 
available for customers, patrons or members, any booth, room 
or cubicle for the private viewing of any adult entertainment 
must comply with the following requirements: 

(a) Access. Each booth, room or cubicle shall be 
totally accessible to and from aisles and public areas 
of the adult oriented establishment and shall be unob- 

Appendix 12 

structed by any door, lock or other control-type de- 
vices. 

(b) Construction. Every booth, room or cubicle 
shall meet the following construction requirements: 

1. Each booth, room or cubicle shall be 
separated from adjacent booths, rooms or cu- 
bicles and any non-public areas by a wall. 

2. Have at least one side totally open to a 
public lighted aisle so that there is an unob- 
structed view at all times of anyone occupying 
the same. 

3. All walls shall be solid and without any 
openings, extended from the floor to a height 
of not less than 6 feet and be light colored, 
non-absorbent, smooth textured and easily 
cleanable. 

4. The floor must be light colored, non- 
absorbent, smooth textured and easily clean- 
able. 

5. The lighting level of each booth, room 
or cubicle, when not in use shall be a minimum 
of ten foot candles at all times, as measured 
from the floor. 

(c) Occupants. Only one individual shall occupy a 
booth, room or cubicle at any time. No occupants of 
same shall engage in any type of sexual activity, cause 
any bodily discharge or litter while in the booth. No 
individual shall damage or deface any portion of the 
booth. 

(d) Inspections. The Building Inspector shall con- 
duct monthly inspections of the premises to insure 
compliance with the provisions of this subsection. 

(10) RESPONSIBILITIES OF THE OPERATOR. 

Appendix 13 

(a) Every act or omission by an employee consti- 
tuting a violation of the provisions of this Section 
shall be deemed the act or omission of the operator is 
such act or omission occurs either with the authoriza- 
tion, knowledge, or approval of the operator, or as a 
result of the operator's negligent failure to supervise 
the employee's conduct, and the operator shall be 
punishable for such act or omission in the same man- 
ner as if the operator committed the act or caused the 
omission. 

(b) Any act or omission of any employee consti- 
tuting a violation of the provisions of this section shall 
be deemed the act or omission of the operator for pur- 
poses of determining whether the operator's license 
shall be revoked, suspended or renewed. 

(c) No employee of an adult oriented establish- 
ment shall allow any minor to loiter around or to fre- 
quent an adult oriented establishment or to allow any 
minor to view adult entertainment as defined herein. 

(d) The operator shall maintain the premises in a 
clean and sanitary manner at all times. 

(e) The operator shall maintain at least 10 foot 
candles of light in the public portions of the estab- 
lishment, including aisles, at all times. However, if a 
lesser level of illumination in the aisles shall be neces- 
sary to enable a patron to view the adult entertainment 
in a booth, room or cubicle adjoining an aisle, a lesser 
amount of illumination may be maintained in such 
aisles, provided, however, at no time shall there be 
less then one foot candle of illumination in said aisles, 
as measured from the floor. 

(f) The operator shall insure compliance of the es- 
tablishment and its patrons with the provisions of this 
section. 

Appendix 14 

(11) ADMINISTRATIVE REVIEW PROCEDURE. The 
City ordinances and State law shall govern the administrative 
procedure and review regarding the granting, denial, renewal, 
nonrenewal, revocation or suspension of a license. 

(12) PENALTIES AND PROSECUTION. Any person 
who shall violate any provisions of this Section or who shall 
fail to obtain a license or permit as required hereunder shall 
be subject to penalty as provided in §25.05 of this Municipal 
Code. 

Appendix 15 

CHAPTER 68. 

MUNICIPAL ADMINISTRATIVE PROCEDURE 

68.001. Legislative purpose. The purpose of this chapter 
is to afford a constitutionally sufficient, fair and orderly ad- 
ministrative procedure and review in connection with deter- 
minations by municipal authorities which involve constitu- 
tionally protected rights of specific persons which are entitled 
to due process protection under the 14th amendment to the 
U.S. constitution. 

68.01. Review of administrative determinations. Any 
person having a substantial interest which is adversely af- 
fected by an administrative determination of a governing 
body, board, commission, committee, agency, officer or em- 
ployee of a municipality or agent acting on behalf of a mu- 
nicipality as set forth in § 68.02, may have such determination 
reviewed as provided in this chapter. The remedies under this 
chapter shall not be exclusive. No department, board, com- 
mission, agency, officer or employee of a municipality who is 
aggrieved may initiate review under this chapter of a determi- 
nation of any other department, board, commission, agency, 
officer or employee of the same municipality, but may re- 
spond or intervene in a review proceeding under this chapter 
initiated by another. 

68.02. Determinations reviewable. The following de- 
terminations are reviewable under this chapter: 

(1) The grant or denial in whole or in part after appli- 
cation of an initial permit, license, right, privilege, or author- 
ity, except an alcohol beverage license. 

(2) The suspension, revocation or nonrenewal of an 
existing permit, license, right, privilege, or authority, except 
as provided in § 68.03(5). 

(3) The denial of a grant of money or other thing of 
substantial value under a statute or ordinance prescribing 
conditions of eligibility for such grant. 

Appendix 16 

(4) The imposition of a penalty or sanction upon any 
person except a municipal employee or officer, other than by 
a court. 

68.03. Determinations not subject to review. Except as 
provided in § 68.02, the following determinations are not re- 
viewable under this chapter: 

(1) A legislative enactment. A legislative enactment 
is an ordinance, resolution or adopted motion of the govern- 
ing body of a municipality. 

(2) Any action subject to administrative or judicial re- 
view procedures under other statutes. 

(3) The denial of a tort or contract claim for money, 
required to be filed with the municipality pursuant to statutory 
procedures for the filing of such claims. 

(4) The suspension, removal or disciplining or nonre- 
newal of a contract of a municipal employe or officer. 

(5) The grant, denial, suspension or revocation of an 
alcohol beverage license under § 125.12(1). 

(6) Judgments and orders of a court. 

(7) Determinations made during municipal labor ne- 
gotiations. 

(8) Any action which is subject to administrative re- 
view procedures under an ordinance providing such proce- 
dures as defined in § 68.16. 

(9) Notwithstanding any other provision of this chap- 
ter, any action or determination of a municipal authority 
which does not involve the constitutionally protected right of 
a specific person or persons to due process in connection with 
the action or determination. 

68.04. Municipalities included. "Municipality", as used 
in this chapter, includes any county, city, village, town, tech- 
nical college district, special purpose district or board or 
commission thereof, and any public or quasi-public corpora- 

Appendix 17 

tion or board or commission created pursuant to statute, ordi- 
nance or resolution, but does not include the state, a state 
agency, a corporation chartered by the state or a school dis- 
trict as defined in § 115.01(3). 

68.05. Municipal authority defined. "Municipal author- 
ity" includes every municipality and governing body, board, 
commission, committee, agency, officer, employe, or agent 
thereof making a determination under § 68.01, and every per- 
son, committee or agency of a municipality appointed to 
make an independent review under § 68.09(2). 

68.06. Persons aggrieved. A person aggrieved includes 
any individual, partnership, limited liability company, corpo- 
ration, association, public or private organization, officer, de- 
partment, board, commission or agency of the municipality, 
whose rights, duties or privileges are adversely affected by a 
determination of a municipal authority. 

68.07. Reducing determination to writing. If a deter- 
mination subject to this chapter is made orally or, if in writ- 
ing, does not state the reasons therefor, the municipal author- 
ity making such determination shall, upon written request of 
any person aggrieved by such determination made within 10 
days of notice of such determination, reduce the determina- 
tion and the reasons therefor to writing and mail or deliver 
such determination and reasons to the person making the re- 
quest. The determination shall be dated, and shall advise such 
person of the right to have such determination reviewed, the 
time within which such review may be obtained, and the of- 
fice or person to whom a request for review shall be ad- 
dressed. 

68.08. Request for review of determination. Any per- 
son aggrieved may have a written or oral determination re- 
viewed by written request mailed or delivered to the munici- 
pal authority which made such determination within 30 days 
of notice to such person of such determination. The request 
for review shall state the ground or grounds upon which the 

Appendix 18 

person aggrieved contends that the decision should be modi- 
fied or reversed. A request for review shall be made to the 
officer, employee, agent, agency, committee, board, commis- 
sion or body who made the determination but failure to make 
such request to the proper party shall not preclude the person 
aggrieved from review unless such failure has caused preju- 
dice to the municipal authority. 

68.09. Review of determination. (1) Initial determina- 
tion. If a request for review is made under § 68.08, the de- 
termination to be reviewed shall be termed an initial determi- 
nation. 

(2) Who shall make review. A review under this sec- 
tion may be made by the officer, employee, agent, agency, 
committee, board, commission or body who made the initial 
determination. However, an independent review of such ini- 
tial determination by another person, committee or agency of 
the municipality may be provided by the municipality. 

(3) When to make review. The municipal authority 
shall review the initial determination within 15 days of receipt 
of a request for review. The time for review may be extended 
by agreement with the person aggrieved. 

(4) Right to present evidence and argument. The per- 
son aggrieved may file with the request for review or within 
the time agreed with the municipal authority written evidence 
and argument in support of the person's position with respect 
to the initial determination. 

(5) Decision on review. The municipal authority may 
affirm, reverse or modify the initial determination and shall 
mail or deliver to the person aggrieved a copy of the munici- 
pal authority's decision on review, which shall state the rea- 
sons for such decision. The decision shall advise the person 
aggrieved of the right to appeal the decision, the time within 
which appeal shall be taken and the office or person with 
whom notice of appeal shall be filed. 

68.10. Administrative appeal. (1) From initial determi- 

Appendix 19 

nation or decision on review. (a) If the person aggrieved did 
not have a hearing substantially in compliance with § 68.11 
when the initial determination was made, the person may ap- 
peal under this section from the decision on review and shall 
follow the procedures set forth in §§ 68.08 and 68.09. 

(b) If the person aggrieved had a hearing substan- 
tially in compliance with § 68.11 when the initial determina- 
tion was made, the person may elect to follow the procedures 
provided in §§ 68.08 and 68.09, but is not entitled to appeal 
under this section unless granted by the municipal authority. 
The person may, however, seek review under § 68.13. 

(2) Time within which appeal may be taken under this 
section. Appeal from a decision on review under § 68.09 
shall be taken within 30 days of notice of such decision. 

(3) How appeal may be taken. An appeal under this 
section may be taken by filing with or mailing to the office or 
person designated in the municipal authority's decision on re- 
view, written notice of appeal. 

68.11. Hearing on administrative appeal. (1) Time of 
hearing. The municipality shall provide the appellant a hear- 
ing on an appeal under § 68.10 within 15 days of receipt of 
the notice of appeal filed or mailed under § 68.10 and shall 
serve the appellant with notice of such hearing by mail or per- 
sonal service at least 10 days before such hearing. 

(2) Conduct of hearing. At the hearing, the appellant 
and the municipal authority may be represented by an attor- 
ney and may present evidence and call and examine witnesses 
and cross-examine witnesses of the other party. Such wit- 
nesses shall be sworn by the person conducting the hearing. 
The municipality shall provide an impartial decision maker, 
who may be an officer, committee, board, commission or the 
governing body who did not participate in making or review- 
ing the initial determination, who shall make the decision on 
administrative appeal. The decision maker may issue sub- 
poenas. An appellant's attorney of record may issue a sub- 

Appendix 20 

poena to compel the attendance of a witness or the production 
of evidence. A subpoena issued by an attorney must be in 
substantially the same form as provided in § 805.07(4) and 
must be served in the manner provided in § 805.07(5). The 
attorney shall, at the time of issuance, send a copy of the sub- 
poena to the decision maker. The hearing may, however, be 
conducted by an impartial person, committee, board or com- 
mission designated to conduct the hearing and report to the 
decision maker. 

(3) Record of hearing. The person conducting the 
hearing or a person employed for that purpose shall take notes 
of the testimony and shall mark and preserve all exhibits. The 
person conducting the hearing may, and upon request of the 
appellant shall, cause the proceedings to be taken by a stenog- 
rapher or by a recording device, the expense thereof to be 
paid by the municipality. 

68.12. Final determination. (1) Within 20 days of com- 
pletion of the hearing conducted under § 68.11 and the filing 
of briefs, if any, the decision maker shall mail or deliver to 
the appellant its written determination stating the reasons 
therefor. Such determination shall be a final determination. 

(2) A determination following a hearing substantially 
meeting the requirements of § 68.11 or a decision on review 
under § 68.09 following such hearing shall also be a final de- 
termination. 

68.13. Judicial review. (1) Any party to a proceeding re- 
sulting in a final determination may seek review thereof by 
certiorari within 30 days of receipt of the final determination. 
The court may affirm or reverse the final determination, or 
remand to the decision maker for further proceedings consis- 
tent with the court's decision. 

(2) If review is sought of a final determination, the re- 
cord of the proceedings shall be transcribed at the expense of 
the person seeking review. A transcript shall be supplied to 
anyone requesting the same at the requester's expense. If the 

Appendix 21 

person seeking review establishes impecuniousness to the 
satisfaction of the reviewing court, the court may order the 
proceedings transcribed at the expense of the municipality 
and the person seeking review shall be furnished a free copy 
of the transcript. By stipulation, the court may order a synop- 
sis of the proceedings in lieu of a transcript. The court may 
otherwise limit the requirement for a transcript. 

68.14. Legislative review. (1) The seeking of a review 
pursuant to § 68.10 or 68.13 does not preclude a person ag- 
grieved from seeking relief from the governing body of the 
municipality or any of its boards, commissions, committees, 
or agencies which may have jurisdiction. 

(2) If in the course of legislative review under this 
section, a determination is modified, such modification and 
any evidence adduced before the governing body, board, 
commission, committee or agency shall be made part of the 
record on review under § 68.13. 

(3) The governing body, board, commission, commit- 
tee or agency conducting a legislative review under this sec- 
tion need not conduct the type of hearing required under § 

68.11. 

68.15. Availability of methods of resolving disputes. 

This chapter does not preclude any municipality and person 
aggrieved from employing arbitration, mediation or other 
methods of resolving disputes, and does not supersede con- 
tractual provisions for that purpose. 

68.16. Election not to be governed by this chapter. The 
governing body of any municipality may elect not to be gov- 
erned by this chapter in whole or in part by an ordinance or 
resolution which provides procedures for administrative re- 
view of municipal determinations.