Chapter 3: Making the Legislative Record

Quick Guide to Chapter 3:

How does a community establish that its ordinance is content neutral?

The preamble, the testimony, the public statements of officials, all written support for the ordinance, and its very terms should demonstrate that it is intended to address the negative secondary effects of sex businesses, and is not motivated by animus toward sexually explicit speech. (3.1)

What if a citizen, or even worse, one of the elected council members, makes a statement about wanting to '¹shut these places down," -- is the ordinance now unconstitutional?

Not usually. Courts are looking mostly at the terms of the ordinance; also, if there is some evidence in the record of a content-neutral motivation being discussed it is usually enough to justify the ordinance. Bad motivation on the part of a few is usually not enough to overcome the text of the ordinance and the correct motivation of others. (3.1)

How do you prove that SOBs cause negative secondary effects? Do you have to have evidence specific to your community? What if the local SOB provides evidence that it causes no secondary effects?

A number of studies document the negative effects caused by SOBs, and the Supreme Court allows communities to rely on studies from other locations to support their own ordinance. You do not need specific evidence for your community; thus, you can enact an ordinance even if you have no SOBs currently in your town. A specific SOB's evidence about its lack of harmful effects is irrelevant because no specific SOB is being targeted; these ordinances are designed to apply to all SOBs and are justified by the experience and studies from other communities. (3.2)

Municipalities must establish two things through the legislative process:

(1) that their intentions are pure; i.e. that they are not directing the regulations at the content of speech but at the negative secondary effects; and

(2) that they have a valid and reasonable basis for enacting the various provisions contained in their ordinance.

In this chapter, we will discuss ways to establish the content neutrality of your ordinance, while avoiding or overcoming improper legislative motives.

3.1 – Establishing Content Neutrality

As previously discussed, an ordinance can pass muster as "content neutral" if it is "justified without reference to the content of the regulated speech." Tollis, Inc., v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir. 1987); see also City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986). "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others," Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir. 1994); Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 122 (1991). “In determining whether a regulation is content based or content neutral, [the Court looks] to the purpose behind the regulation.” Bartnicki v. Vopper, 532 U.S. 514, 526 (2001). Remember it must be "aimed to control secondary effects resulting from the protected expression" rather than inhibiting the protected expression itself. Tollis, Inc., 827 F.2d at 1332; Renton, 475 U.S. at 48; City of Erie v. Pap’s A.M.,TDA “Kandyland” 529 U.S. 277, 296 (2000).

That intent, therefore, must be demonstrable from the legislative record and the ordinance itself. The legislative record is, of course, the recorded legislative history of the ordinance's enactment. This may include minutes of meetings of the local planning commission or subcommittee of city council when the ordinance was proposed, discussed and drafted. In fact, it includes all sessions of governmental meetings when the ordinance was discussed. It includes all recorded public hearings and especially all evidence received by the legislative body in support of the ordinance. Such evidence may take the form of anecdotal testimony, formal land use studies of the particular vicinity to be zoned, studies and reports from other communities on the effects of "adult" property uses, police reports on crime statistics near these uses, testimony of real estate appraisers, and testimony of nearby homeowners, business owners and churches on the effects such uses have on the quality of their activities and lives.

The local government must make clear that the purpose of the ordinance is not to eliminate pornography[1]. Obscenity and child pornography laws are directed to that problem. The aim of this ordinance is to regulate the time, place and manner of operation of "sexually oriented businesses" because of their harmful secondary effects. This should be demonstrated by the transcripts and other evidence making up the legislative record. It would be entirely appropriate for the municipal attorney to brief his/her clients prior to consideration of the ordinance on the types of comments that would be harmful in establishing a record of content neutrality.

The experience of the Dallas City Council in enacting the ordinance upheld in Dumas v. City of Dallas, 648 F.Supp. 1061 (N.D. Tex. 1986), aff'd sub nom FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988), rev 'd on other grounds, 493 U.S. 215 (1990), is a good example of the correct way to establish content neutrality. The Dallas city attorney presented the proposed ordinance regulating "sexually oriented businesses" to the Dallas City Planning Commission. The Commission considered studies carried out in other cities, but did not undertake a study of Dallas. The Commission did consider, however, a map of Dallas indicating Protecting Communities From Sexually Oriented Businesses areas in which "sexually oriented businesses" could locate under the proposed ordinance. The Commission also heard public testimony, both for and against the proposed ordinance. The Commission voted unanimously to recommend adoption of an ordinance regulating sexually oriented businesses. Dumas, 648 F.supp. at 1064.

The ordinance then went before the Dallas City Council. The Council considered the three studies that were before the Planning Commission. The Council also considered a Dallas study comparing crime rates in two commercial sections, one with "sexually oriented businesses" and one without (finding crime rates 90 percent higher in the "SOB" district). After hearing public comment in favor of the ordinance, the Council adopted it by unanimous vote. Id.

The intent of both the Planning Commission and the Council in adopting the ordinance was clear. Five of the 15 members of the Commission and four of the 11 members of the Council stated unequivocally -- to no dissent -- that the ordinance was concerned solely with controlling the secondary effects of "sexually oriented businesses" on surrounding neighborhoods. Both groups stated that they were concerned not with the content of the speech associated with "sexually oriented businesses", but with the crime, urban blight, and plummeting property values that inevitably infect the neighborhoods where such businesses locate. Id. at 1064-65. Hence the reviewing court concluded that the "intent of the City in passing the Ordinance was solely to control the secondary effects of sexually oriented speech on the neighborhoods its purveyors inhabit, rather than to eliminate the speech itself." Dumas, 538 F.Supp. at 1065-66. See also Albert Fredericks, Adult Use Zoning: New York City’s Journey on the WellTraveled Road From Suppression to Regulation of Sexually Oriented Expression, 46 Buff. L. Rev. 433 (1998) (analyzing New York City’s successful effort to establish content neutrality in their effort to regulate sexually oriented businesses).

In Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir. 1993), the court held an SOB zoning ordinance "content-neutral":

"[T]he ordinance's stated purpose is to lessen the undesirable secondary effects sexually oriented businesses have on surrounding neighborhoods, make these businesses less accessible to minors, prevent losses in property values, and reduce criminal activity. Like the district court, we find nothing in the ordinance that suggests the City Council passed the ordinance to suppress the message of Holmberg's sexual materials.” 12 F.3d at 143.

Even less than stellar efforts to establish content neutrality have been upheld as sufficient by federal courts of appeal.

In Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994), the Sixth Circuit reversed the district court's conclusion that a public nudity ordinance failed the test of content neutrality. (The court ultimately ruled the ordinance overbroad on other grounds, which will be discussed in Chapter 8 - "The Problem of Nude Dancing"). "As the City's lawmakers claimed during trial that they were moved to enact the ordinance only by morality concerns and failed to dwell on an interest in combating secondary effects, the district court concluded that the ordinance is constitutionally deficient as applied to prohibit nude dancing ... ", Triplett Grille, 40 F.3d at 132. The district court was confident in this conclusion because "every Akron lawmaker testified concerning Council's deliberations...”

Nevertheless, the Sixth Circuit discovered sufficient support in the legislative record to reject the district court's conclusion, holding that "affirmative evidence of a secondary effects motivation imposes a burden on the City" not required by the Supreme Court's decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). "Moreover, there is evidence in the record suggesting that a number of Akron City Councilmen actually supported the public indecency ordinance in part because they wished to prevent the occurrence of harmful secondary effects." In support, the court cited statements of two councilmen, one who testified that he supported the ordinance because "nude dancing brought a certain element to the neighborhood," and another who stated that constituents felt there were problems in the neighborhoods and they asked for help." 40 F.3d at 135. The evidence was not overwhelming, but it was sufficient for the Sixth Circuit to reject the notion that the ordinance was content based.

More recently courts have adopted different approaches to those situations where a locality presents little or no evidence of content neutrality. Some courts have held that such regulations unsupported by evidence are content based and subject to strict scrutiny analysis. See, e.g., G.Q. Gentlemen’s Quarters, Inc. v. City of Lake Ozark, No. WD 60087, 2002 WL 1966521 (Mo. Ct. App. August 27, 2002) citing Ranch House, Inc. v. Amerson, 238 F.3d 1273 (11^th Cir. 2001). Other courts have held that precedent requires a content neutral intermediate scrutiny analysis where the regulation in question is of a type ordinarily designed to minimize adverse secondary effects. See, e.g., Giovani Carandola, Ltd. v. Bason¸ No. 01-1726, 2002 WL 1997902 (4^th Cir. August 30, 2002)

Even affirmative evidence of some improper legislative motive is not necessarily enough for a court to rule an ordinance to be content based. In Renton, the lower court had ruled that even if an ordinance's stated purpose was to deal with secondary effects, if restricting First Amendment rights was a "motivating factor" the ordinance was invalid. The Supreme Court disagreed, and cited U.S. v. O'Brien, 391 U.S. 367, 383-84, for the "familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive," and rejected the court of appeals' "view of the law." See also City of Erie v. Pap's A.M., 529 U.S. 277, 292 (2000) (reaffirming that the Court will not to strike down a constitutional statute due to an “alleged illicit motive.”)

In Ambassador Books & Video v. City of Little Rock, 20 F.3d 858 (8th Cir. 1994), the Eighth Circuit rejected an argument that an ordinance was motivated by an improper legislative purpose. The evidence supporting the district court's conclusion included a handwritten statement by the city attorney instructing his staff to prepare a comprehensive ordinance because he wanted to "shut these places down! Somehow." The court ruled that this was the "personal objective of the city attorney, who was not a member of the body that adopted the ordinance," and that after reviewing case law the city attorney changed his approach to the problem. The court held that the evidence "that the city's true, but hidden, intent in enacting the ordinance was different from what the ordinance itself stated, falls far short of what would suffice to justify disregarding the plain and clear statement of the ordinance's purpose." 20 F.3d at 863.

Obviously, if the drafting city attorney's statement is not sufficient to create an improper legislative motive, statements by citizens who are proponents of these types of ordinances need not be a major concern unless the city council appears to be agreeing with requests that the council "zone these pornography businesses out of existence." Such testimony should not poison the content neutrality of the ordinance. See Dumas, 648 F.Supp. at 1065, n.11.

3.2 – Evidence of Negative Secondary Effects

Up until this point we've been discussing the purity of legislative motives needed to establish that your ordinance is content neutral. Now our focus shifts to establishing the need for a SOB ordinance. This section will explain how you prove that sex businesses cause negative secondary effects and therefore should be regulated more stringently than other types of businesses.

What type of evidence is permissible under existing caselaw, and what is constitutionally required to prove secondary effects? As we noted at the beginning of this chapter, there are a number of types of evidence that can be used to make the legislative record and to help prove negative secondary effects.

A municipality can conduct its own studies to support the contention that existing sexually oriented businesses create adverse effects on the community. In Young, the city of Detroit conducted its own studies and employed experts to report on the effects such establishments had on their city. "In the opinion of 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." 427 U.S. at 55.

In Town of Islip v. Caviglia, 540 N.E.2d 215, 219 (N.Y. 1989), the court recognized the importance of local government studies:

Studies relied on and prepared by the Town demonstrated that the location of adult businesses in certain areas heightened public apprehension about entering them, thus driving out traditional downtown businesses as customers avoided locations near adult bookstores, increased criminal activity, and lowered nearby residential property values. To be sure, planning studies, by their very nature, are not scientific nor their predictions certain but the town was entitled to credit the evidence in its study of past deterioration and the prediction that, unless remedied, the deterioration would continue; it was not required to wait before acting until its business areas became wastelands.

Numerous other communities have undertaken studies of the particular impact of sexually oriented businesses on the property values, crime rate and quality of life in communities. Summaries of some of these studies are in Appendix D at the back of this book.

Another form of direct evidence is to use testimony from health officials or counselors regarding the activities that occur in a typical sex business. In Kansas City, a licensed counselor described the compulsive sex addiction of many men who frequent "peep show" booth businesses. The counselor detailed the experience of his clients who had anonymous homosexual contact with up to 40 partners per day, were involved in drug dealing in the "bookstores" and who sometimes sought out children for "HIV-free" sexual gratification after becoming aroused at the "peep show" booth. In Tucson, Arizona, a doctor from Preventive Health Services commented on the likelihood of HIV transmission from the multiple anonymous sexual encounters occurring in "adult" bookstores, concluding that "regulating these establishments under the proposed Ordinance" would protect the health of the public by lowering the incidence of transmission of HIV and other sexual diseases.

Many communities do not have the resources to launch their own investigations into potential negative secondary effects on their community, particularly with respect to crime rates and property values. Nor would it make sense for courts to require communities to suffer the consequences of SOBs, and then to document those consequences before being able to regulate them. Many communities obviously desire to implement reasonable time, place and manner regulations before any sex business begins to cause problems.

Fortunately, the Supreme Court resolved that problem in favor of cities in the landmark Renton decision. The U.S. Court of Appeals for the Ninth Circuit struck down a zoning ordinance enacted by the City of Renton, a 32,000-population suburb of Seattle, because it was enacted without the benefit of studies specifically relating to "the particular problems or needs of Renton." 475 U.S. at 50. However, there was a great deal of evidence before the Renton City Council regarding the problem of sex businesses generally, including expert testimony and studies from other communities. Requiring evidence of particular problems in Renton was an "unnecessarily rigid burden of proof," according to the Supreme Court, which held that Renton was entitled to rely on the experiences and studies of other cities:

We hold that Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the "detailed findings" summarized in the Washington Supreme Court's Northend Cinema opinion, in enacting its adult theater zoning ordinance. The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. That was the case here.

475 U.S. at 51-52. The Court went on to say that the fact that Renton chose a different form of regulation to respond to the problems created by SOBs than cities whose evidence it relied on was also not relevant to the issue of whether SOBs cause negative secondary effects from one community to another. Citing Young, the Court reiterated that cities "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." 475 U.S. at 52, citing Young, 427 U.S. at 71.

More recently, the Supreme Court has again affirmed that cities should have reasonable opportunity to experiment in regulation of sexually oriented businesses. In City of Los Angeles v. Alameda Books, Inc, 122 S. Ct. 1728 (2002) rev’g 222 F.3d 719 (9^th Cir. 2000), sexually oriented businesses had been circumventing zoning laws by joining several stores under one roof. Los Angeles thus amended its SOB ordinance to prevent separate SOBs from forming these adult super-stores. In support of its amended ordinance, the city relied on a 1977 study it had completed that discussed concentrations of separate SOBs in an area, but not a concentration of SOBs under one roof. Overruling a Ninth Circuit decision to the contrary, the Supreme Court approved of the city’s use of this study to justify the amended ordinance. As long as the study “fairly [supported] the municipality’s rationale for its ordinance,” the Court deemed it acceptable. 122 S. Ct. at 1736

The Fifth Circuit used similar reasoning to allow a rural county to use urban studies to justify the county’s regulations. LLEH, Inc. v. Wichita County, Tex. 289 F.3d 358 (5^th Cir. 2002). Wichita County, Texas had passed SOB regulations governing unincorporated areas of the county. The county had relied on urban secondary effects studies to justify the ordinance. The lower court held that this study was irrelevant since it dealt with urban, not rural, secondary effects. The Fifth Circuit reversed the lower court, allowing the county to rely on the study. Studies need not be specific to the area as long as they are reasonably related to the purpose of the ordinance. 289 F.3d at 367.

Because of the Renton decision and its progeny, today it is the rare community which actually conducts its own study of negative secondary effects. The method of choice for most communities is to rely on evidence of negative secondary effects shown by land use studies from other communities. Those studies should be obtained from the cities that produced them, or from Community Defense Counsel or organizations which have copies of original studies, and then introduced into the record at a council or planning commission hearing. Use of evidence from other communities is routinely upheld. City of Erie v. Pap’s A.M., 529 U.S. 277, 296-97 (2000) (“the city need not ‘conduct new studies or produce evidence independent of that already generated by other cities’ to demonstrate the problem of secondary effects, ‘so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.’”)

Similarly, the Eighth Circuit has written: "This court has rejected the argument that adult business ordinances must be founded upon local experience. Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 226-27 (8th Cir. 1990) ('To insist that governmental interests justifying such legislation could only be found in specific local experiences and conditions would be unrealistically to require deliberate subjection to those experiences and conditions before attempting to avoid them."' Ambassador Books & Video, Inc. v. City of Little Rock, 20 F.3d 858, 864 (8th Cir. 1994). Obviously, it makes no sense to require a community to prove it is suffering from harmful secondary effects before the community can protect itself from harmful effects. See also Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir. 1993)("…Holmberg simply ignores the district court's findings that the City enacted the ordinance on the strength of thorough research, public hearings, documented studies, and considered deliberations, and stubbornly argues the City must document its substantial interest with localized studies and evidence showing that secondary effects actually exist. Under the First Amendment, the City was not required 'to conduct new studies or produce evidence independent of that already generated by other cities' before enacting an ordinance that lessens sexually oriented businesses' secondary effects. Renton, 475 U.S. at 51.")

In fact, because the Supreme Court recognized in Renton and again in Barnes the near-universal negative secondary effects associated with sex businesses, communities may be able to take "legislative notice" of those effects so that the barest minimum of a legislative record will be considered sufficient.

The Fifth Circuit in Lakeland Lounge v. City of Jackson, 973 F.2d 1255 (5th Cir. 1992), reversed a district court's ruling that there was no evidence the city council considered studies from other communities regarding negative secondary effects before enacting the ordinance. The court held that the city staff and planners had relied on such studies, that those staff members held a public meeting in which secondary effects were discussed, and that the ordinance itself made reference to those secondary effects studies from other cities.

In Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3d Cir. 1993), the court upheld hours of operation restrictions imposed by the state of Delaware based on minimal pre-enactment evidence. The court acknowledged that when the expressive activity is "marginal ... some courts have attenuated the requirement of pre-enactment legislative evidence of the undesirable side effects of expressive activity and a reasonable likelihood that the proposed bill will reduce them by adopting a 'legislative notice' theory that is said to be analogous to the concept of judicial notice." Id. at 136.

One of the cases cited in Mitchell was Wall Distributors, Inc. v. City of Newport News, Va., 782 F.2d 1165 (4th Cir. 1986). In a footnote, the court theorized:

In assessing the reasonableness of local legislative determinations of ends and means under this quite deferential standard of constitutional review, we may not confine the local legislature to only what it knows and can foresee from purely local conditions already experienced. Legislatures can no more be held bound not to know what the whole world knows than can courts; legislative notice of facts must be deemed to run at least as wide as does judicial notice.

In enacting local legislation of this sort, it therefore cannot be thought unreasonable (at least for constitutional review purposes) for local legislative bodies to assume that human nature --at least in respect of such basic matters as human sexuality and its commercial exploitation -- will not vary greatly between generally comparable metropolitan areas within even so heterogeneous a society as that of twentieth century America. We therefore assess the reasonableness of Newport News' determination not solely on the basis --concededly sparse -- of what had already demonstrably occurred within its geographical borders, but of what it might reasonably foresee in light of a sufficiently documented wider national experience properly reflected in matters of public record. It would defy common sense to suppose that the city fathers of Newport News are not made aware in this day and time of comparable conditions in other localities, and of the varied responses being made by other local governments to conditions already experienced. We therefore assume that a proper factor in this local legislative determination of governmental interests was what was demonstrably being generally experienced in comparable localities in, e.g., Arizona, see Ellwestt, 681 F.2d 1243, and North Carolina, see Hart, 612 F.2d 821.

To insist that governmental interests justifying such legislation could only be found in specific local experiences and conditions would be unrealistically to require deliberate subjection to those experiences and conditions before attempting to avoid them.

Relying on that case, the Eighth Circuit upheld legislation regulating SOBs on the legislative notice theory. Postscript Enterprises v. City of Bridgeton, 905 F.2d 223, 226-27 (8th Cir. 1990). We should also take notice of Justice Souter's statement in Barnes:

In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, ... I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case.

501 U.S. at 584-85.

The Supreme Court also acknowledged the use of “legislative notice” in City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). While Erie had findings of its own in the record, the city council members “would likely have had firsthand knowledge of what took place at and around nude dancing establishments.” 529 U.S. at 297. Thus, “an administrative agency may take official notice of such ‘legislative facts’ … and is not confined to the evidence in the record....” 529 U.S. at 298.

While the legislative notice theory makes some sense considering Renton, Barnes, and City of Erie, it is of course safer to establish a strong legislative record.[2] However, these theories may be useful for municipalities who have already adopted an ordinance without much of a record, and now find their ordinance under attack.

3.3 – Using a Preamble to Show Legislative Purpose and Intent

One effective way to establish the legislative record regarding the negative secondary effects of sexually oriented businesses is to record those findings in the ordinance itself, usually in the form of a preamble. Detroit used such a statement of findings to bolster its argument in the Young case. The Supreme Court noted that "[o]n the basis of the reasons stated by the city for adopting the ordinances, the court concluded that they represented a rational attempt to preserve the city's neighborhoods." 427 U.S. at 55-56. In a footnote, the Supreme Court quoted the district court: "[w]hen, as here, the City has stated a reason for adopting an ordinance which is a subject of legitimate concern, that statement of purpose is not subject to attack." Id. at 56, n.11.

The Detroit ordinance stated:

In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulations of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this section. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area (i.e., not more than two such uses within one thousand feet of each other which would create such adverse effects).

Young, 427 U.S. at 54, n.6.

A good example of a statement of legislative findings is taken from the Richland County, South Carolina, ordinance. The Richland County ordinance, including its statement of findings and its “purpose and intent", has been used as a model by many other communities:

WHEREAS, there are a substantial number of sexually oriented businesses in the unincorporated area of Richland County that require special supervision from the public safety agencies of the county in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the County; and

WHEREAS, the County Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and

WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulation of sexually oriented businesses in order to protect the health and well-being of the citizens; and