Volume 2007, Issue 6

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

Indiana: "Judge fines Indiana adult bookstore $30,000"
AP on Palladium-Item, 6.20.2007

Two Men Convicted Of Spamming Pornography
Information Week, Sharon Gaudin, 6.28.2007
Both men now face up to 30 years in prison and half a million dollars in fines.

CASES

Daytona Grand, Inc. v. City of Dayton Beach, Fla., No. 06-12022 (11th Cir. June 28, 2007) City's zoning scheme that left 25 locations for sexually oriented businesses to locate in was constitutional even though all available property was held by a single landowner who may or may not be willing to sell and nudity ordinances are constitutional so long as supported by any reasonably relevant evidence including common sense.

Barton v. State, No. A07A0486, 2007 WL 1775565 (Ga.App. June 21, 2007)
Conviction for sexual exploitation of children due to possession of child pornography could not stand in the absence of evidence showing that the defendant knew the child porn files were stored in temporary Internet folders on his computer.

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CASES

Daytona Grand, Inc. v. City of Dayton Beach, Fla., No. 06-12022 (11th Cir. June 28, 2007)

City's zoning scheme that left 25 locations for sexually oriented businesses to locate in was constitutional even though all available property was held by a single landowner who may or may not be willing to sell and nudity ordinances are constitutional so long as supported by any reasonably relevant evidence including common sense.

The Eleventh Circuit panel summarized the case and its ruling as follows:

At issue today is the constitutionality of several zoning and public nudity ordinances adopted by the City of Daytona Beach (“the City”) to regulate adult theaters. The owners and operators of Lollipop’s Gentlemen’s Club (“Lollipop’s”), an adult theater in Daytona Beach, sued the City claiming that these ordinances violate the First Amendment. The district court upheld the zoning ordinances, finding that the City had provided a constitutionally sufficient number of available sites for adult theaters, and also denied Lollipop’s claim that it was “grandfathered in” under Florida law. However, the district court struck down the nudity ordinances, concluding that they did not further the substantial government interest in reducing negative secondary effects associated with adult theaters.

After thorough review, we affirm the district court’s determination that the zoning ordinances pass constitutional muster, as well as its ruling that, under Florida law, Lollipop’s is not entitled to grandfather status. But as for the nudity ordinances, we conclude that the City has indeed carried its evidentiary burden of establishing their constitutionality because the ordinances further substantial government interests, and, accordingly, we reverse and remand for further proceedings consistent with this opinion.

The City contained ten sexually oriented businesses that were operating or seeking to operate in Daytona Beach. The court of appeals held that the zoning scheme, which made 25 potential sites available for sexually oriented businesses, passed constitutional muster under the City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). The eleventh circuit panel summarized Renton as follows:

First, the court must determine whether the ordinance constitutes an invalid total ban or merely a time, place, and manner regulation; second, if the ordinance is determined to be a time, place, and manner regulation, the cour t must decide whether the ordinance should be subject to strict or intermediate scrutiny; and third, if the ordinance is held to be subject to intermediate scrutiny, the court must determine whether it is designed to serve a substantial government interest and allows for reasonable alternative channels of communication.

The court of appeals held that it was irrelevant that the potential relocation sites were vacant and owned by a single landowner who may or may not be willing to sell to the sexually oriented businesses.

The court also rejected Lollipop’s arguments that it was grandfathered in and observed that such vested rights are not easily created under Florida law and only occur in situations involving equitable estoppels or a clear display of bad faith on the part of the municipality.

The court of appeals then analyzed the nudity ordinances being challenged using the four part test set forth in United States v. O’Brien, 391 U.S. 367 (1968) and City of Erie v. Pap’s A.M., 529 U.S. 277 (2000):

According to this test, public nudity ordinances that incidentally impact protected expression should be upheld if they (1) are within the constitutional power of the government to enact; (2) further a substantial governmental interest; (3) are unrelated to the suppression of free expression; and (4) restrict First Amendment freedoms no greater than necessary to further the government’s interest.

The ordinances required dancers to wear G-strings and pasties in all adult theatres and the more modest clothing within 500 feet of establishments that serve alcohol. Lollipop’s produced expert testimony attacking the credibility of empirical evidence the city relied on in passing the ordinances. Citing City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (200), the trial court ruled that the Lollipop's evidence had undermined the city’s evidence. The court of appeals noted that Alameda Books had not altered the evidentiary standard announced in Renton. It observed that the city need not rely on empirical evidence only, but could rely on any type of evidence “reasonably believed to be relevant” including “common sense." The court of appeals then proceeded to uphold the ordinances apply each prong of the O’Brien test.

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Barton v. State, No. A07A0486, 2007 WL 1775565 (Ga.App. June 21, 2007)

Conviction for sexual exploitation of children due to possession of child pornography could not stand in the absence of evidence showing that the defendant knew the child porn files were stored in temporary Internet folders on his computer.

Barton was convicted of 106 counts of sexual exploitation of children after authorities found child pornography on his laptop computer in temporary internet folders. An expert testified that files stored in such folders are not necessarily affirmatively or knowingly stored by the computer operator. On appeal, Barton asserted that the State failed to prove his knowing possession of child pornography and that the trial court erred in allowing a computer forensic analyst to testify as to the age of persons depicted in photographs found on his computer. He argued that he took no affirmative action to store the computer images and was unaware of their existence on his computer. The Georgia court of appeals agreed that the evidence was insufficient to establish his knowing possession under the circumstances. The court declined to address remaining issues.

Related article see: Georgia: Appeals Panel 'Reluctantly' Tosses Child Porn Case, Law.com, Alyson M. Palmer, 6.27.2007

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