PUBLISHED OPINION
Case No.: 94-1299
†Petition for
Review Filed
Complete Title
of Case:
SUPERB VIDEO,
Plaintiff-Appellant,†
v.
COUNTY OF KENOSHA,
Defendant-Respondent.
Oral Argument: May 22, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: July 5, 1995
Opinion Filed: July
5, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If
"Special", JUDGE: BARBARA A. KLUKA
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiff-appellant, there were briefs
and oral argument by Jeff Scott Olson of Madison.
Respondent
ATTORNEYSOn behalf of the defendant-respondent, there was a brief
and oral argument by Anthony Milisauskas of Kenosha.
|
COURT OF APPEALS DECISION DATED AND RELEASED July
5, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1299
STATE OF WISCONSIN IN
COURT OF APPEALS
SUPERB
VIDEO,
Plaintiff-Appellant,
v.
COUNTY
OF KENOSHA,
Defendant-Respondent.
APPEAL
from a judgment of the circuit court for Kenosha County: BARBARA A. KLUKA, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. In this declaratory action, Superb Video
challenges a Kenosha County Board of Health regulation governing coin-operated
booths in adult-oriented establishments.
The issue on appeal is whether the board had the authority to adopt the
regulation. The trial court ruled that
the regulation was within the board's authority and duty to preserve the public
health and that the regulation was not a nuisance enactment in conflict with §
146.14, Stats., 1991-92. We uphold the trial court's rulings.
Background
Superb
Video operates the Shoppe of Temptations, a retail business in Kenosha County
which offers sexually explicit books, magazines, videotapes and other materials
to its customers. The business also
provides individual booths in which its customers are able to view movies.
The
Kenosha County Board of Health was created by the Kenosha County Board of
Supervisors. On September 24, 1992, the
board issued Regulation HD-1.01-1, addressing communicable diseases. The regulation is entitled “Coin-Operated
Booths in Adult-Oriented Establishments.”
Among other requirements, the regulation dictates certain construction
criteria of individual booths used for viewing movies, videotapes or live
entertainment. The introductory
paragraph of the regulation states the purpose of the enactment, in part, as
follows:
It is the lawful purpose of the Kenosha County Board of
Health to enact rules and regulations as are necessary for the preservation of
health and to prevent the spread of AIDS and other communicable or sexually
transmitted diseases in Kenosha County. ¼ This regulation
establishes standards for booth construction and maintenance in order to
prevent the spread of AIDS and other communicable or sexually transmitted
diseases.
The
regulation requires that individual booths must be constructed so that one side
is totally unobstructed and accessible to aisles and public areas. The regulation also limits the number of
occupants in a booth to one at a time, recites the minimum lighting level in
each booth and requires that the walls of each booth be solid and without any
openings to adjoining booths. The
regulation requires the operator to “maintain the premises in a clean and
sanitary manner at all times,” and further specifies that the floor in each
booth must be light colored, nonabsorbent and easily cleanable. The enforcement provision makes it unlawful
to operate an adult-oriented establishment in violation of the regulation or
order of the health department.
Violations are punishable by a forfeiture and may be enjoined.
Superb
Video commenced this declaratory action, contending that the regulation was
invalid because it sought to regulate in matters of statewide health concern
and that it conflicted with § 146.14, Stats.,
1991-92, pertaining to nuisances which are sources of filth or sickness.
The
trial court concluded that the enactment of the regulation was a valid exercise
of the County's authority to regulate in the area of public health pursuant to
§§ 140.09(2), 141.015(6) and 141.02(2), Stats.,
1991-92. The court also held that the
regulation was not a nuisance enactment.
Superb Video appeals.
Discussion
Superb
Video argues that the regulation is invalid because: (1) the County lacks statutory authority to regulate in the area
of communicable diseases because the legislature has delegated that authority
to the Department of Health and Social Services (DHSS); and (2) the regulation
conflicts with state nuisance health law pursuant to § 146.14, Stats., 1991-92.
We
first address Superb Video's argument that the County lacked authority to
regulate in the area of communicable diseases.
It contends that the legislature has delegated the authority to control
communicable diseases to DHSS in ch. 143, Stats.,
1991-92, and that because the prevention of communicable diseases is of
statewide concern, counties have no authority to regulate in the area.
“[A
county] has only such powers as are expressly conferred upon it or necessarily
implied from ¼ the grant of power.”
State ex rel. Teunas v. County of Kenosha, 142 Wis.2d 498,
504, 418 N.W.2d 833, 835 (1988) (quoted source omitted). As a creature of the legislature, a county
must exercise its powers within the scope of authority ceded to it by the
state. Id. at 504, 418
N.W.2d at 835-36. Our task is to
determine if the applicable statutes empowered the board to enact the
regulation at issue. A matter of
statutory interpretation presents a question of law. Id. at 504, 418 N.W.2d at 836. We decide such questions independently and
without deference to the trial court, though we value the opinion of the trial
court on such a question. Scheunemann
v. City of West Bend, 179 Wis.2d 469, 475, 507 N.W.2d 163, 165 (Ct.
App. 1993).
While
some subjects of legislative action are exclusively of statewide concern and
others may be classified as entirely of local character, many subjects do not
fit exclusively into one or the other of the categories. See Thompson v. Kenosha County,
64 Wis.2d 673, 683, 221 N.W.2d 845, 851 (1974). We conclude that such is the case in the area of public health
and communicable diseases.
While
the functions of a county board of health are established by statute, the board
has few well-defined responsibilities. See
Pawlisch v. Barry, 126 Wis.2d 162, 166, 376 N.W.2d 368, 371 (Ct.
App. 1985). Such a board operates
within broad policymaking guidelines, and its only restriction is to remain
within state law and DHSS regulations. See
id. Included in the
board's powers are:
all the powers and authority now vested in local boards
of health and local health officers and [it] shall have authority to enforce
such rules and regulations as may be adopted by the department under the laws
of the state. It may adopt such rules
for its own guidance and for the government of the health department as may be
deemed necessary to protect and improve public health, not inconsistent with
state law nor with rules and regulations of the department.
Section 140.09(6), Stats.,
1991-92. Since this statute defines the
board's powers in terms of the “powers and authority ¼ vested in local
boards of health and local health officers,” we appropriately look to the
powers vested in such entities.
Chapter
141, Stats., 1991-92, deals with
local boards of health and health officials.
Section 141.015(6), Stats.,
1991-92, provides that local health boards “shall take such measures as shall
be most effectual for the preservation of the public health.” In addition, § 141.02(2), Stats., 1991-92, provides that local
health officers “shall provide such additional rules and regulations as are
necessary for the preservation of health, to prevent the spread of communicable
diseases, and to cause the removal of all objects detrimental to health and to
enforce the health laws.”
We
conclude that these provisions clearly indicate that the legislature intended
local health boards to have the authority to regulate in matters relating to
the preservation of public health and the prevention of communicable diseases.[1]
Superb
Video argues, however, that the regulation runs afoul of DHSS' authority as set
out in Wis. Adm. Code ch. HSS
145. This chapter of the administrative
code and ch. 143 of the Wisconsin Statutes under which it is promulgated are
addressed to the surveillance, reporting and control of communicable
diseases. As such, these laws are
targeted at: (1) the identification and
reporting of persons who carry, or are suspected of carrying, communicable
diseases; and (2) the isolation, quarantine or commitment of such persons in
order to prevent the outbreak or further spread of communicable diseases. Thus, these laws seek to control and limit
the spread of communicable diseases once discovered.
However,
the thrust of the regulation before us is to prevent or discourage the
opportunity for conduct which might spread a communicable disease in the first
instance. This is a subtle, but
important, distinction. And, it is the
very kind of regulatory action which §§ 141.015(6) and 141.02(2), Stats., 1991-92, envision and
allow. Thus, we hold that the
regulation does not directly intrude on the reporting, prevention and control
of communicable diseases addressed in Wis.
Adm. Code ch. HSS 145. Cf.
Trinity Memorial Hosp. v. Milwaukee County, 113 Wis.2d 18, 20-22,
334 N.W.2d 685, 686-87 (Ct. App. 1983) (county ordinance placing restriction on
medical care to indigent beyond the scope of a county's power because it
abrogated state statutory scheme).
Moreover,
by providing at § 143.02(4), Stats.,
1991-92, that rules or orders adopted by DHSS supersede local rules or
ordinances which conflict, the legislature has implicitly recognized the
authority of local health authorities to regulate in the same area. And since we conclude that this regulation
is not in conflict with DHSS' authority and Wis.
Adm. Code ch. HSS 145, we uphold the regulation.
We
now turn to Superb Video's argument that the regulation is invalid because it
is a nuisance regulation that conflicts with § 146.14, Stats., 1991-92, because the forfeitures provided in the
regulation are greater than those allowed by the statute.[2]
Section
146.14(1), Stats., 1991-92,
provides:
Nuisances. (1) A “nuisance,” under this
section, is any source of filth or cause of sickness. The department [DHSS] may order the
abatement or removal of a nuisance on private premises, and if the owner or
occupant fails to comply, the department, or its agent, may enter upon the
premises and abate or remove such nuisance.
[Emphasis added.]
Superb
Video first argues that because another Kenosha County circuit court in a prior
action struck down a similar regulation as violative of § 146.14(1), Stats., 1991-92, this regulation is
similarly doomed. Superb Video notes
that the only difference between the present regulation and the prior one is
the absence of language in the present regulation which labels a violation of
the regulation as a “nuisance.” Thus,
Superb Video contends that the present regulation is really the prior nuisance
regulation in disguise.
We
have two responses to this argument.
First, we observe that the prior circuit court ruling is not before us
on this appeal and, in any event, is not binding on us. Second, we do not determine that a
particular law is a nuisance regulation merely on the presence or absence of
that label. Rather, we examine the
substance and nature of the regulation.
We
first look to § 146.14(1), Stats.,
1991-92. That statute declares that
sources of filth or causes of sickness are nuisances. The statute provides, inter alia, for the abatement and removal
of those sources. However, as we have
already noted, the board's regulation seeks to limit or prevent the opportunity
for sexual conduct which might cause the transmittal of a communicable disease. As such, the regulation does not penalize or
enjoin conditions of filth or sickness, although such might result from a
violation of the regulation. Rather,
the regulation imposes structural and environmental requirements with regard to
the physical condition of the property.
The regulation penalizes violations of those requirements and permits
their injunction. A condition of filth
or sickness is not a prerequisite to a forfeiture prosecution or an injunction
proceeding under the regulation, and the County would not have to establish a
nuisance in order to prevail in such a proceeding. We hold that the regulation is not a nuisance law.[3]
We
conclude that the board had the authority to enact the regulation at issue
under its statutory duty to take measures to preserve the public health pursuant
to §§ 141.015(6) and 141.02(2), Stats.,
1991-92. We also hold that the
regulation does not intrude on the nuisance provisions of § 146.14, Stats., 1991-92.
By
the Court.—Judgment affirmed.
[1] While the
division of power between different levels of government makes possible the
realization of certain basic values of a democratic state, the exercise of
governmental power by two different levels of government raises questions of
how the power should be divided and whether a particular level is acting within
its powers. Wisconsin's Envtl.
Decade, Inc. v. DNR, 85 Wis.2d 518, 526 n.1, 271 N.W.2d 69, 72 (1978).
[2] Open-booth
requirements have been found to withstand various constitutional
challenges. See Libra
Books, Inc. v. City of Milwaukee, 818 F. Supp. 263 (E.D. Wis. 1993)
(open-booth requirement did not violate rights to free speech and equal
protection, nor was it unconstitutionally vague); Suburban Video, Inc. v.
City of Delafield, 694 F. Supp. 585 (E.D. Wis. 1988) (open-booth
requirement did not violate patrons' First Amendment rights to privacy); City
News & Novelty, Inc. v. City of Waukesha, 170 Wis.2d 14, 487 N.W.2d
316 (Ct. App. 1992) (open-booth requirement not violative of the customers'
First Amendment rights). Here, however,
Superb Video brings a statutory, not a constitutional, challenge.