Any business that exploits interest in sex in a graphic manner; we prefer the term “sexually oriented business", or "SOB." (1.2)
A typical sexually oriented "bookstore" contains private viewing rooms, or "peepshow" booths, where patrons engage in masturbation or promiscuous and unsafe sex acts with prostitutes or other patrons; the booths are covered with bodily fluids and sometime have openings to allow anonymous acts of oral and anal intercourse. In nude dancing establishments, patrons and dancers often engage in public sexual contact; private dances are opportunities for acts of prostitution. (1.3)
The neighborhood or business district surrounding sex businesses typically suffers a decline in property values and increases in crime especially sex crimes. (1.4)
We know that organized crime controls the national distribution of hard-core pornography, and thus controls the products sold in sex businesses. We also know from the trial and convictions of organized crime kingpins like Rueben Sturman and John Gotti that organized crime figures control entire chains of sexually oriented businesses. (1.5)
Communities that have been the most effective in driving SOBs out of town have been those that use a combination of aggressive enforcement of criminal obscenity laws and the type of stringent time, place, and manner regulations detailed in this book. (1.6)
[The city council found] that some uses of property are especially injurious to a neighborhood when they are concentrated in limited areas. The decision to add adult motion picture theaters and adult bookstores to the list of businesses which, apart from a special waiver, could not be located within 1000 feet of two other "regulated uses" was in part, a response to the significant growth in the number of such establishments. In the opinion urban planners and real estate experts who supported the ordinances, the location of several such businesses in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere.
So wrote the
The Court wrote that the city's effort to "preserve
the quality of urban life is one that must be accorded high respect," and
that "the city must be allowed to experiment with solutions to admittedly
This recognition by the Court was significant because it
sent a signal to communities around
The increase in sexually transmitted diseases, including AIDS, and the release of the Final Report of the Attorney General's Commission on Pornography in 1986, which outlined not only who profited from this illicit industry but also what was sold and what went on inside the typical sexually oriented business, led to a new wave of public regulation of sexually oriented businesses during the late 1980s.
Cities across the country adopted local ordinances to protect against negative secondary effects. State legislatures, health departments and city and county officials began to recognize the deleterious, even dangerous effects of these businesses on the public health, the accompanying decline in property values, and high crime in neighborhoods situated near such facilities. Naturally, they sought legislative solutions.
Some bolder cities, without benefit of recent caselaw, attempted to prohibit any sexually oriented businesses from locating in their community and were quickly restrained by federal and state courts.
With the new wave of regulation came a tidal wave of
litigation, as the well-funded pornography industry began challenging these
legislative efforts to restrict their locations and activities. One such legal battle occurred in the city of
In that case, the Court once again drew attention to the concerns raised by communities threatened by sex businesses:
The ordinance by its terms is designed to prevent crime,
protect the city's retail trade, maintain property values, and generally "protec[t] and preserv[e] the
quality of [the city's] neighborhoods, commercial districts, and the quality of
urban life." City of
Two Supreme Court cases, issuance of the Final Report of the Attorney General's Commission on Pornography, and the experience of many communities invaded by sex businesses led, for the first time, to widespread public exposure of the reality of problems caused by these establishments. The stage was set for a decade of turf battles, as local governments took on sex shops city by city, county by county, state by state. That turf battle has intensified with each passing year and continues to this day.
Professor Jules Gerard, author of the leading scholarly legal treatise in this area, Local Regulation of Adult Businesses, admits in his book's opening paragraph that "'Adult business' is essentially a euphemism for an enterprise that purveys sex in one form or another."
["Adult business"] comprises a large variety of sexual oriented businesses that may include movie theaters, bookstores, TV rental stores, hotels and motels, houses of prostitution (sometimes masquerading as escort agencies, massage parlors, or "rap" studios), peep shows, topless/bottomless bars, and the like. "Adult entertainment" is a term that refers to the materials or services that theses businesses market. These may include movies, TV tapes, photographs, books, magazines, sexual devices, such as condoms, and similar articles, as well as performances to be witnessed, such as nude dancing, and tactile services, such as massages, and the like. One business frequently will offer more than one kind of adult entertainment; a bookstore may include a peepshow featuring a live nude dancer, for example.
Jules Gerard, Local Regulation of Adult Businesses, at 1 (1996).
While the terms "adult business" and "adult entertainment" appear in numerous ordinances, we have no desire to perpetuate usage of this "euphemism" except where necessary to deal with specific ordinance language. (In fact, use of the word "adult" to describe pornography and businesses that exploit sex was a creation many years ago by leaders of the pornography industry, who were seeking ways to market their product that would be more acceptable in society.) We prefer, where possible, to use the term "sexually oriented businesses", which also provides us with a useful acronym for these shady enterprises -- "SOBs.”
In 1985, the Attorney General's Commission on Pornography
was formed and went to work. Amid much
national publicity, the Commission during 1985 and 1986 held a series of six
public hearings across the
The Commission's Final Report described how these booths, which are sometimes referred to as "private video viewing rooms," are typically used:
Inside the booths the viewer may see approximately two minutes of the movie for 25 cents. As the number of sexually explicit scenes or diversity of sexual contact increase, the viewing time decreases. Tokens or quarters are needed to operate the peep shows and can be obtained at the outlet sales counter.
The average peep show booth has enough room for two adults to stand shoulder to shoulder. The inside of the booth is dark, when the door is closed, except for the light, which emanates from the screen or enters from the bottom of the door.
The inside walls of the peep show booth are often covered with graffiti and messages. The graffiti is generally of a very sexual nature and consists of telephone numbers, names, requests and offers for homosexual acts, anatomical descriptions and sketches. The booth may also contain a chart that is used to schedule appointments and meetings in that particular booth, In some cases, this arrangement has been used for solicitation of prostitutes.
* * *
In addition to movie viewing, the booths also provide places for anonymous sexual relations. Many booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex. The holes are used for oral and anal sex acts. Sexual activity in the booths involves mostly males participating in sexual activity with one another. However, both heterosexual and homosexual men engage in those activities. The anonymity provided by the "glory holes" allows the participant to fantasize about gender and other characteristics of their partners.
The booth is sometimes equipped with a lock on the door. Many patrons intentionally leave the door unlocked. Some patrons look inside the booths in an attempt to find one already occupied. It is commonplace for a patron to enter an occupied booth, close the door behind him, and make advances toward the occupant. He may grab the occupant's genitals in an effort to invoke sexual activity or attempt to arrange a later sexual encounter. The sexual activities reported in peep show booths include masturbation, anal intercourse, and felatio.
Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva or alcoholic beverages. The sloes of a patron's shoes may stick to certain areas of the floor. The booths rare often littered with cigarette butts and tobacco. The trash and sewage and application of disinfectants or ammonia on occasion create a particular nauseating smell in the peep booths.
Final Report of the Attorney General's Commission on Pornography ("Final Report"), at 1473-76.
One witness before the Commission called these booths
"AIDS transmission centers" because of the frequency with which
patrons engage in unsafe public sexual conduct in the booths. Experiences in big cities like
A Television NewsCenter 13
Reporter: Tonight on "AIDS in a
Rick: I will never tell anyone what I have. That is kind of stupid.
Reporter: Why is that?
Rick: It kills your sex life.
Reporter: We have introduced to you
a man we are calling Rick. Rick is
homosexual, he lives in
Rick: No, I look at it as to the point that in riding in a car. If you get into a car with somebody and there is a seatbelt available to you and you don't use it and you get killed, whose fault is it? To a point I feel a little guilty but I always have condoms and if no one wants to use them or no one suggests it then hey, whose fault is it?
* * *
Harlan Heinz, psychologist: It is not much different from the killer, the person who goes around murdering people without a conscience. I think that is a similar kind of lack of character development. I think that is an exception. Some people who feel that they are going to die in a few years would have this attitude. But I think that's few, I think that's an exception and it is a person without a conscience or without any kind of feeling for the welfare of mankind.
* * *
Dr. Michael Finkel: Anyone who continues to behave irresponsibly in such matters should have some sort of penalty. There should be some way that we can stop these people.
* * *
Dr Ken Alder: This is really distressing. I think that a person who does these things is very definitely a risk to other people's health.
Harlan Heinz, psychologist: It is very difficult to treat a person like this and I think that basically you would not be able to cure this person This mind would be very difficult to reach.
* * *
Reporter: Right now,
Gov. Tommy Thompson: I don't know if we want to classify it as a felony but I am certainly looking at some sort of criminal sanctions.
Reporter: Can you get specific at all?
Gov. Tommy Thompson: We haven't really resolved or made a final decision on it. We are looking at a lot of legislation this year to protect the citizens
* * *
Reporter: Rick says if Thompson's administration gets a law approving restricting the spread of AIDS, he will obey it. But until then he will continue his lifestyle and that includes anonymous sex with other men.
Reporter: How are you doing that, where all do you have sex?
Rick: Basically, I go to all the bookstores.
Reporter: Who do you meet in these rooms?
Rick: I have seen a few married men in there.
Reporter: Do you have most of your sex in adult bookstores?
Reporter: Is that the easiest way for you to have sex is through these holes?
Rick: Very easy.
* * *
Reporter: You have a hole in one of your booths. Why is that hole there?
Bookstore Owner: That hole was there
when the booth came down here from
Does that make you want to get rid of the hole more?
Bookstore owner: Yeah. I think I will make sure I can patch this up good where they can't tear it down again because I don't want to get sued if somebody else catches AIDS over this. So I am going to have to take care of it today, I guess.
Reporter: And although it seems Glen
During the early 1990s
AIDS and other sexually transmitted diseases," and that they "often have groin-level holes in walls separating two rooms to facilitate sex acts, primarily among gay males."
In 1992 Preate shut down three
The Inquirer story gave more details about the investigation's findings:
During a six-month investigation, undercover agents found "glory holes cut into the walls of the video booths, permitting patrons to take part in sex acts with those in adjoining booths, according to court papers.
The state also alleges that agents were solicited for oral sex by patrons, who in some cases masturbated in view of the agents and grabbed the agents groins.
At Book Bin East, in an area of the store called "California Couch Dancing," female employees allegedly solicited an agent to pay them to dance naked or perform sexual acts.
The state, citing an affidavit filed by Dr. Michael R.
In testimony before the state
Strong evidence suggests that when
At the Locker Room adult bookstore, the regulars used to laugh whenever some naïve tourist actually tried to use one of the "video preview booths" to watch an X rated movie.
The weird scenes that marked the bookstore's dirty, dimly
lit peep-show arcade usually were more than enough to send out of towners fleeing down
"There was every kind of sex you can think of back there -- orgies and stuff, hustler selling themselves, and free-lancers,'' [a] source said. "Almost everybody around the place was a speed freak or a junkie. You used to find discarded [hypodermic] needles all over the place, because low-life speed freaks would go in there and shoot up.
When cleaning out the stores, janitors were "glad to find [discarded] condoms" the source said. "At least it meant [customers] were trying to take some precautions."
"No joke," says another person familiar with the two stores. "There were lots of guys sleazing around back there, big time."
* * *
The rear portion of both stores were honeycombs of more than 20 peep-show booths, where customers in theory went to pump in tokens into vending machine style slots and view adult films.
But sources familiar with the arcades said they were sleazy places where customers engaged in prostitution, intravenous drug use and anonymous sex of the sort the City hadn't seen since bathhouses were closed in the face of the AIDS epidemic
Police, who had been stripped of their power to inspect bookstores when the board of Supervisors deregulated the sex industry here in 1985, rarely went into the stores. Neither did the Health Department.
The result at the Locker Room and Ben Her was a dangerous, anything goes atmosphere, the sources said.
Sources said so many syringes were found discarded in the arcades that janitors wore thick rubber gloves to avoid being accidentally jabbed and infected with AIDS.
On one Occasion, according to a source, a customer complained he had been jabbed when he sat down on a bench where a syringe had been discarded. It was unclear what became of the customer
Another source said that on three occasions arcade janitors retrieved lost wallets that contained documents indicating customers were HIV positive.
"Sleaze ruled in
two City adult arcades", San Francisco Examiner,
Sexual activity is associated with all sexually oriented businesses, not just "adult bookstores." Even the so-called "safe sex" alternative, nude-dancing establishments, clearly promote unsafe public sexual contact, not just harmless viewing of dancers. As far back as the early 1970s, the Supreme Court acknowledged this element of nude dancing establishments:
Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer; or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.
Every type of sexually oriented business poses public health and safety hazards for a community, because what occurs inside these establishments is never contained there. The testimony regarding married, heterosexual men engaging in unsafe homosexual acts with HIV-positive men is particularly frightening, considering that the disease may then be spread unknowingly to the men's wives and future children.
But the negative secondary effects don't end with what happens inside the typical sex business. Many of the negative secondary effects cited by communities to justify time, place and manner regulation are external to the establishments.
the Supreme Court recognized that cities could reasonably draw the conclusion
that bad things happened to the parts of town where sexually oriented
businesses moved. In
One of the most comprehensive studies of the impact of
sexually oriented businesses on communities was undertaken in the state of
Their review of studies from communities including
Specific testimony before the Working Group described circumstances that are consistent with what occurs in most neighborhoods where SOBs locate:
Pornographic materials are left in adjacent lots. One person reported to the police that he had found 50 pieces of pornographic material in a church parking lot near a SOB. Neighbors report finding used condoms on their lawn and sidewalks and that sex acts with prostitutes occur on streets and alleys in plain view of families and children. The working group heard testimony that arrest rates understate the level of crime associated with SOBs. Many robberies and thefts from "johns" and many assaults upon prostitutes are never reported to the police.
Prostitution also results in harassment of neighborhood residents. Young girls on their way to school or young women on their way to work are often are often propositioned by johns … [Near a theater that caters to homosexuals] neighborhood boys and men are also accosted on the street. A police officer testified that one resident had informed him that he found used condoms in his yard all the time. Both his teen-age son and daughter had been solicited on their way to school and to work.
Working Group Report at 12. What happens inside SOBs is seemingly never contained there, but inevitably spills out into the surrounding community.
As we discuss the problems associated with sexually oriented businesses, we must remember not only what happens inside and outside the physical establishments, but also who is behind these businesses -- who are the owners and backers of this "industry"? When we realize who is financially behind these establishments, some of the regulations -- licensing, for example -- make more sense.
The answer to this question can be found in any number of government reports, starting with the Final Report of the Attorney General's Commission on Pornography. The Commission heard corroborating testimony from a number of organized crime informants, who indicated that major organized crime families controlled the national distribution of obscene material because of its profitability. They also testified that these families were involved in other criminal activity including murder, arson, prostitution, narcotics, money laundering, tax violations, fraud and extortion related to their control of the industry. One detective told the Commission that if organized crime families "do not own the business outright, they most certainly extract street tax from independent smut peddlers." Final Report at 1048.
Reuben Sturman, who at one point
was the world's largest distributor of pornography, reputedly earning in the
neighborhood of $1 million per day, was finally convicted on income tax evasion
charges in 1989 in
John Gotti, head of the Gambino crime family, was convicted in 1992 for ordering
several murders. In the course of his
trial it became clear that Gotti controlled a great
deal of the illegal pornography business through his La Cosa
Nostra organization. "As the 'boss
of bosses', Gotti oversees hundreds of 'soldiers' who
reap more than $100 million a year from gambling, loan sharking, racketeering
-- and pornography."
One former FBI agent testified that, in his opinion based on 23 years experience in pornography and obscenity investigations, "it is practically impossible to be in the retail end of the pornography industry [today] without dealing in some fashion with organized crime, either the mafia or some other facet of non-mafia, nevertheless highly organized crime."
The Commission also heard testimony from those who were
involved in "tax evasion which arose from skimming activities at ...
sexually oriented bookstores." See
As the Minnesota Attorney General's Working Group on the Regulation of Sexually Oriented Businesses concluded:
Evidence of the vulnerability of sexually oriented businesses to organized crime involvement underscores the importance of criminal prosecution of these businesses when they engage in illegal activities … It may also disclose organized crime association with local pornography businesses … Regulation to permit license revocation of subsequent crimes may also expose and increase control over criminal businesses.
Working Group Report at 20.
The typical sexually oriented business will come into town claiming to be a reputable business that simply is exercising its First Amendment rights by providing much-needed "mature" entertainment for a certain segment of society. It will claim to run a clean business, with honest and upstanding businessmen in charge, not like those bad SOB owners you may have heard of from other towns. Furthermore, the true owners of the business will rarely be listed on any license applications and their identity may be carefully guarded.
The reality with virtually all SOBs is that they are connected at some level to organized crime, and their regular business practices include skimming, tax evasion, prostitution and other illegal activities. The longer they can convince local officials of their innocence, and of how they are different than every other sleazy business, the longer they will avoid imposition of significant time, place and manner regulation by your community.
Sexually oriented businesses, which were virtually unknown
It is difficult to count the number of sexually oriented
businesses in the country because so many open and close so quickly, and
because they strive to avoid state regulation.
Some estimates indicate that the pornography industry’s revenues in the
While estimates vary, it is clear that the number of sexually oriented businesses has grown significantly during the last two decades and the variety of "entertainment" has increased greatly.
In part, this proliferation has occurred as a result of
declining standards of moral conduct in society generally. From the acceptance of profanity in public
and in the media, to acceptance of nudity in mainstream
Other factors contributing to the proliferation include technological developments such as videos and the Internet which facilitate easier consumption within the privacy of the home. See, e.g., Eric Damian Kelly and Connie Cooper, Everything You Always Wanted to Know About Regulating Sex Businesses, Ch. 1 (American Planning Association Planning Advisory Service Report No. 495/496 2000), Notwithstanding other reasons, it is clear that a significant factor in the proliferation of SOBs is the lack of enforcement of legal restrictions on the sale of pornographic material. The Supreme Court has always recognized that obscene material is outside the protection of the First Amendment, but for many years the Court was imprecise in defining obscenity. Since 1973, the Court has articulated a clear definition of obscenity, but confusion from the past has contributed to an unwillingness to expend law enforcement resources on prosecuting "dirty books."
This failure to enforce state and federal obscenity laws has created a climate in most communities where the only restrictions pornographers face before opening a business are time, place and manner regulations imposed by local governments. The fear of prosecution for selling illegal obscenity is not a factor in many parts of the country.
However, communities that have been most successful in eliminating sexually oriented businesses have used a combination of strict obscenity law enforcement and time, place and manner regulations. Most SOBs cannot survive economically when they sell only non-obscene pornography, especially when faced with stringent zoning, licensing and other restrictions. But because many communities do not enforce obscenity laws, time, place and manner regulations must be in place because they may be the only legal roadblocks to the presence of a SOB in your community.
The problems associated with sexually oriented businesses, both inside and outside the establishments, are universal to SOBs. And it is these problems -- the negative secondary effects -- that form the constitutional basis for regulating these establishments in a more stringent fashion than other types of businesses.