## Facts

- Bamon Corp., doing business as the McCook Theatre, operated an adult theater in Dayton, Ohio that exhibited sexually explicit materials.
- The theater contained dozens of individual viewing booths where patrons could watch adult films or videos.
- The booths were fully enclosed and had doors that patrons could close and lock.
- On October 18, 1989, the Dayton City Commission enacted Ordinance No. 28028, adding §§ 136.08–136.09 to the City’s Revised Code of General Ordinances to regulate video viewing devices in “amusement arcades” (a category that excluded hotels and motels).
- The ordinance applied to booths used to view material depicting specified sexual acts or bodily functions and imposed design and occupancy requirements, including:
  - visibility from a well-illuminated continuous main aisle,
  - no obstruction by any curtain, door, or other enclosure,
  - side and rear walls without holes or openings,
  - a limit of one patron per booth at a time, and
  - illumination by a light bulb of at least 25 watts.
- The ordinance made violators subject to misdemeanor penalties, including owners, operators, employees, or agents who permitted violations and patrons who violated the one-person occupancy rule.
- Bamon sued the City of Dayton and related officials seeking declaratory relief and a permanent injunction against enforcement, asserting that:
  - the ordinance violated patrons’ constitutional privacy rights in viewing non-obscene sexually explicit expression in the booths, and
  - the Video Privacy Protection Act of 1988 (VPPA) preempted the ordinance.
- The City filed a motion to dismiss or, alternatively, for summary judgment; because the court considered materials outside the pleadings, it treated the motion as one for summary judgment.

## Issues

1. Whether Dayton’s open-booth, lighting, and single-occupancy requirements violated constitutional rights of patrons (including asserted privacy interests) in viewing non-obscene sexually explicit materials in commercial viewing booths.
2. Whether the VPPA preempted Dayton’s ordinance regulating booth design and occupancy.

## Decision

- The court treated the City’s motion as a motion for summary judgment and granted summary judgment for the defendants.
- The court held the ordinance did not violate constitutional privacy rights asserted by patrons or the operator based on viewing adult materials in enclosed commercial booths.
- The court held the VPPA did not preempt the ordinance because the ordinance did not regulate, require, or authorize disclosure of personally identifiable information from video-viewing records.

## Legal Principles

- A municipality may regulate the physical layout and conditions of adult-video viewing booths (such as visibility, lighting, and occupancy limits) as a police-power measure aimed at deterring illegal sexual activity and related health and safety concerns, rather than as a direct restraint on expression.
- The constitutional protection for receiving non-obscene expression does not include a right to view such materials in a locked, fully enclosed commercial booth free from observation from common areas.
- Federal preemption requires congressional intent shown through express preemption, occupation of the field, or a conflict between federal and local law; a federal statute addressing disclosure of personally identifiable information does not displace local booth-design rules that do not involve such disclosure.
- Summary judgment is proper when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

## Conclusion

The district court upheld Dayton’s ordinance requiring adult video booths to be open to view from a well-lit aisle, illuminated, and limited to one patron, ruling that these design and occupancy rules did not violate constitutional privacy rights in a commercial booth setting and were not preempted by the VPPA because the ordinance did not regulate disclosure of personally identifiable viewing information.


Bamon Corp. v. City of Dayton, 730 F. Supp. 80 (1990)