Probably not. No business can be regulated as a sex business unless it falls into the category of those that create "negative secondary effects." It is unlikely that a rare or single showing of a sex film would lead to neighborhood blighting effects, crime or prostitution. (4.1)
There is no specific percentage of stock, floor space or revenue that should trigger regulation as an "adult" use. Courts have upheld language that defines sex businesses as those which have the distribution of sexually explicit material as "a principal business purpose" or the material itself as "a substantial or significant portion of its stock.” We advise sticking to the language upheld by courts, and applying it to local businesses on a case by case basis. (4.2)
In some cases, courts have rejected application of SOB regulation to video stores with "adult" sections or "adult" back rooms. However, under language upheld by the Supreme Court, it is possible to regulate these establishments as sex businesses if the "adult" material is a "significant" part of the business. Again, case by case analysis is required. (4.2)
One of the recurring problems in drafting a successful
ordinance directed at sexually oriented businesses is in defining the type of
establishment regulated by the ordinance. Given the diversity of views
regarding pornography and related activity, it is not surprising that there is
no uniform agreement on a definition for the types of sexual exploitation
outlets which negatively impact residential and commercial neighbors.
This threshold question must be answered before we can
proceed further: What is an "adult" property use subject to
regulation under a content-neutral time, place and manner ordinance? Is it a
theater which shows a single pornographic movie? Must it be a commercial
establishment which deals exclusively in "adult" materials? Is it
somewhere in between? What about an "adult" novelty shop that mixes
the sale of legitimate lingerie with some sexually explicit videos and
magazines?
In today's commercial environment, we have many video
stores which stock only an occasional pornographic movie; others have 50
percent or more of their inventory in hard-core pornography. We have
convenience stores which sell food and other necessities along with Penthouse
and Playboy; other "bookstores" carry nothing but pornographic
publications. Some "adult boutiques" carry lingerie, perfumes, and
soft-core and hard-core pornography in magazines and videos. Some video stores
carry exclusively pornographic videos, and have "private viewing
rooms" that are often used for public sexual activity; other supposedly
family oriented video stores have "adults only" back rooms which
contain extensive selections of the same hard-core videos available in
"adult bookstores."
This variety of types of businesses dealing in the
commercial exploitation of sex makes it necessary to define "adult
uses" with a precision that protects the free speech interests of
businesses while not running afoul of the constitutional requirements set forth
in Young and
Property uses which are regulated must be defined in a way
that is consistent with and advances the purpose of the ordinance. Remember,
the
The ordinance must be "designed to serve a substantial
governmental interest and not reasonably limit alternative avenues of
communication."
Thus, it is constitutionally impermissible to define for
regulation a theater which comes within the ordinance after only a single
showing of a pornographic movie. A "single use" standard cannot pass
"constitutional muster as a content neutral time, place and manner
regulation" because it cannot be justified as serving a substantial
governmental interest in preserving the quality of urban life. Tollis, Inc., 827 F2d at 1332. It cannot
be said that a one-time use of a property for an "adult" purpose
causes harmful secondary consequences. See
People v. Superior Court,
774 P.2d 769, 775 (
It is unlikely that a sufficient basis to support a
"single use" definition will ever exist. Remember there must be some
evidence in the legislative record to support the regulation. If an ordinance
defines an establishment as a regulated "adult" use after a single
showing of an "adult" movie, it will likely be invalidated for
failing to be "'narrowly tailored' to affect only that category of
theatres shown to produce the unwanted secondary effects."
The question remains: How much pornographic material must
an establishment sell or show before it can be defined for regulation in an
"adult" use zoning ordinance? Clearly not all of the material must be
pornographic or "adult" in nature.
In Young, the
Court permitted the regulation of "an[y] establishment having as a
substantial or significant portion of its stock in trade, books, magazines, and
other periodicals which are distinguished or characterized by their emphasis on
matter depicting, describing or relating to 'Specified Sexual Activities' or
'Specified Anatomical Areas' [as defined]" 427 U.S. at 53 (emphasis
added).[2] Once again, the Court permitted the
regulation under a restrictive zoning ordinance of a business which could have
a wide variety of non-pornographic merchandise. For instance, a suburban video
store renting a broad range of general fare video cassettes, which also rented
as "a substantial or significant portion of its stock in trade"
sexually explicit videos, would have come within the Detroit ordinance upheld
in Young.[3]
A variety of definitions of regulated uses have passed
constitutional muster. The California
Supreme Court in People v. Superior Court,
774 P2d 769 (Cal. 1989), held that an ordinance which simply regulated
"adult" uses was sufficient where "use" was defined as
"a regular and substantial course of conduct." The court stated that
"under this standard, zoning restrictions such as contained in the
ordinance at issue here would apply to all adult entertainment theatres
offering adult fare as a substantial part of their regular business, but would
not apply to theatres showing only occasional or incidental adult movies."
774 P.2d at 777. See also Alexander v.
Minneapolis, 928 F.2d
278, 282 (8th Cir. 1991) (Video store with 30 percent of its inventory in
"adult" material lacked standing to challenge ordinance which
defined "adult" uses as those having "a substantial or
significant portion of [their] stock in trade" in sexually explicit
material.)
Other courts have upheld the zoning regulation of
establishments when a "preponderance" of material sold or shown is
sexually explicit. Pringle v. City of
The City of
Other definitions used in "adult" use ordinances
are almost uniformly upheld against vagueness challenges. For instance, the
court in Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 833 (4th Cir. 1979),
rejected a vagueness challenge to the words "adult bookstores,"
"adult movie theaters," "adult theater,"
"preponderance," and finally the words "distinguished or
characterized by their emphasis" on erotic content. It held these words
"reasonably specific and precise, bearing in mind that unavoidable
imprecision is not fatal and celestial precision is not necessary." Id at
833 [citing Miller v. California, 413
See also Artistic Entertainment, Inc. v. City
of Warner Robins, 223 F.3d 1306, 1310 (11th Cir.
2000) (upholding “mainstream theater” exemption to “adult entertainment business”);
Hang On, Inc. v. City of
Some ordinances regulate only those establishments which derive more than a certain percentage of their revenue from the distribution or showing of sexually explicit matter. See Strand Property Corp. v. Municipal Court, 148 Cal.App.3d 882, 889, 200 Cal. Rptr. 47 (1983) ("over 50 percent" of revenue); Christy v. City of Ann Arbor, 625 F.Supp. 960 (F.D. Mich. 1986) (20 percent of stock in trade). Other ordinances attempt to define an "adult use" as one where more than a certain percentage of floor space is devoted to sexually explicit material.
There are two problems with any definitions that use
percentages, whether of display space, stock in trade, or revenues. First,
they are easily subject to abuse by the SOB owners who are very comfortable
skirting the law or violating its spirit while complying with the letter of the
law. For example, with a percentage of revenue requirement, SOBs can easily
alter or hide certain receipts in order to appear to comply with the
ordinance's terms. Keep in mind that the typical SOB has ties to organized
crime, and often is used to launder money or at least skim money to avoid
paying taxes. Numerous SOB owners have been convicted for income tax evasion
because of this practice. If they are willing to cheat the I.R.S., they won't
hesitate to cheat in reporting to your city the percentage of income derived
from selling pornographic material.
To avoid regulation under ordinances that define
"adult use" by percentage of stock in trade or display space devoted
to sexual material, stores have been known to fill whatever percentage is
needed -- say 51 percent -- with benign, cheap old paperback books. No one is
buying them or even looking at them -- but they are an inexpensive way to avoid
regulation as an SOB. One SOB in California rented an empty store next door and
filled it with shelves full of old paperbacks purchased at a flea market in
order to avoid regulation as an SOB by keeping the percentage of stock in
sexual material below 25 percent. See
also, Taylor v. State, No.
01-01-00505, 2002 WL 1722154 (Texas App.
Second, there is an issue of arbitrariness. If 50 percent
of sales are sexual material and that leads to negative secondary effects, why
would there be no effects if 49 percent of the material sold were sexual? What
evidence can a city provide that 50 percent or 25 percent of sexual material is
the magic number, after which a business creates negative secondary effects?
Courts do not look kindly on arbitrary line-drawing, especially in the First
Amendment context. We encourage communities to stick with standard language
already approved by the U.S. Supreme Court and other courts, such as
"principal business purpose" or "significant portion of its
stock in trade." This is one area where the pursuit of precision is
misplaced, and more general terms are appropriate. However, some jurisdictions
have upheld these ordinances. See Maloy v.
City of
Several recent court rulings identify potential
trouble-spots in some 'adult use" definitions. In Wolff v. City of
In City of
Recently, the 11th Circuit held in Williams
v. Pryor, 240 F.3d 944 (11th Cir. 2001), that an
In This That and
Other Gift and Tobacco, Inc. v. Cobb County, Ga., 285
F.3d 1319 (11th Cir. 2002), the court upheld a statute forbidding
the distribution of sexual devices but held unconstitutional those portions
prohibiting any advertisements for sexual devices. The court found that sexual
devices could be prescribed by doctors or psychological professionals. Banning
advertisements for those uses went too far. 285 F.3d at 1324.
The Supreme Court of Washington rejected a City of
However, the Eighth Circuit reached a different conclusion
in ILQ Investments, Inc. v. City of
Rochester,
25 F.3d 1413 (8th Cir. 1994). That court reversed a district court ruling that
reliance on other cities' studies was not relevant when applied to
That is simply not the law. "[T]he requirement of
narrow tailoring is satisfied so long as the … regulation promotes a
substantial government interest that would be achieved less effectively absent
the regulation."' Under City of
25 F.3d at 1418 (citations omitted).
Another potential trouble spot is with ordinances that
attempt to define SOBs as businesses that advertise themselves as promoting
nudity, "X-rated" or "adult" entertainment. The Fifth
Circuit held this to be an unconstitutional restriction on commercial speech,
because there were no studies to support a connection between advertising and negative
secondary effects. MD II Entertainment,
Inc. v. City of
Another type of establishment which has not successfully
been classified as an "adult" use is a hotel which offers pornographic
in-room movies. That is because no studies connect mainstream hotels with
negative secondary effects on the surrounding neighborhood. Patel V. City
of South San Francisco, 606 F.Supp. 666 (N.D.
A "sham" hotel whose main purpose is to provide
sexually explicit material in a bedroom setting, would likely be considered an
SOB. This “sham” hotel closely
approaches the generally held definition of “adult motels.” See, e.g., TK's Video, Inc. v. Denton
County, Tex., 24 F.3d 705, 714 (5th Cir. 1994), (ordinance defined “adult motel” as
one which provides patrons with [media] … which are characterized by the
depiction or description of [previously defined sexual activities or body
parts]).
Additionally, many ordinances that have included
restrictions on adult motels have been approved by the courts. In FW/PBS, Inc. v. City of Dallas,
493
For specific language to
use in a typical ordinance, please see "Section II, Definitions", of
our sample ordinance, in Appendix A.
[1]
"This Court, however, has consistently held that lack of precision is not
itself offensive to the requirement of due process. ... [T]he Constitution does
not require impossible standards; all that is required is that the language
'conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices'. . .. That there may be
marginal cases in which it is difficult to determine the side of the line on
which a particular fact situation falls is no sufficient reason to hold the
language too ambiguous to define a criminal offense." Roth v.
[2]
Those terms must also be defined. In Central
Avenue Enterprises v. City of Las Cruces, 845 F.Supp 1499 (D.N.M. 1994), an
ordinance that failed to define "specified sexual activities" and
"specified anatomical areas" was ruled unconstitutionally vague.
Please see our sample ordinance, Appendix A, for definitions for those terms.
[3]
3However, the Delaware Supreme Court rejected an interpretation of a
state law that would have identified any video store offering "x-rated
videos" as an "adult entertainment establishment," holding that
"only those businesses which are likely to promote the crimes of obscenity
and prostitution ... should be licensed as 'adult entertainment establishments
...'," thus avoiding unconstitutional overbreadth.