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 Renton. However,
because zoning must apply to property uses which by nature are dynamic and
changeable, it cannot define regulated uses with absolute scientific precision.
This, however, is not grounds for invalidation. The "prohibition against
excessive vagueness does not invalidate every statute which a reviewing court
believes could have been drafted with greater precision." Rose v. Lock,
423 U.S. 48, 49
(1975). See also United States v. Powell,
423 U.S. 87, 94 (1975) (The fact that Congress might … have chosen … more
precise language … does not mean that the statute … is unconstitutionally
vague); United States v. Petrillo,
332 U.S. 1, 7 (1947) (holding that a law providing “adequate warning” despite
the availability of “clearer and more precise language” is not
unconstitutionally vague. The Constitution doesn’t have “impossible
standards.”); Stansberry v. Holmes, 613 F.2d 1285 (5th Cir.
1980) (upholding an SOB zoning law against vagueness challenge: “A provision need
not … be cast in terms that are mathematically precise; it need only give fair
warning ….”). Indeed, "few words possess the precision of mathematical
symbols, most statutes must deal with untold and unforeseen variations in
factual situations, and the practical necessities of discharging the business
of government inevitably limit the specificity with which legislators can spell
out prohibitions. Consequently, no more than a reasonable degree of certainty
can be demanded. Nor is it unfair to require that one who deliberately goes
perilously close to an area of proscribed conduct shall take the risk that he
may cross the line." Boyce Motor
Lines v. United
States, 342 U.S.
337, 340 (1952).
Property uses which are regulated must be defined in a way
that is consistent with and advances the purpose of the ordinance. Remember,
the Young Court concluded
that as long as such ordinances were enacted to protect neighborhoods from
deterioration, increased crime and other harmful secondary effects, they did
not offend the First Amendment. Young,
427 U.S. at
68-73; see Developments in the Law -- Zoning,
91 L. 1427, 1557-1559 (1978). Thus the ordinance must only apply to the kinds
of property uses which tend to create blight, increase crime, and cause other
negative secondary effects. There must be a demonstrable link between the use
regulated and the problem to be addressed by the ordinance.
The ordinance must be "designed to serve a substantial
governmental interest and not reasonably limit alternative avenues of
communication." Renton,
475 U.S. at
930. Clearly, local communities have a substantial interest in preventing the
deleterious secondary effects associated with "adult" businesses. At
a minimum, however, the courts require a logical relationship between the evil
feared and the method selected to combat it. Young, 427 U.S.
at 80. (Powell, J., concurring) (a regulation's "incidental restriction on
First Amendment freedoms [must be] no greater than is essential to the
furtherance of that interest"). The governing body must be able to show
that in enacting the particular limitations it placed on the property defined
for regulation, it relied upon evidence permitting a reasonable inference that,
absent such limitations, the defined "adult" property use would have
harmful secondary effects. See Renton,
475 U.S. at 51; Tollis, Inc. v. San
Bernardino County,
827 F.2d 1329, 1333 (9th Cir. 1987); Walnut
Properties, Inc. v. City of Whittier, 808 F.2d 1331, 1335 (9th Cir. 1986); Baby Dolls Topless Saloons, Inc. v. City of
Dallas, Tex., 295 F.3d 471, 481
(5th Cir. 2002).
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 (Cal. 1989).
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." Renton, 475 U.S.
at 52. As the Tollis, court stated:
"Nor do we see how the County could make such a showing, since it is
difficult to imagine that only a single showing ever, or only one in a year,
would have any meaningful secondary effects." 827 F.2d at 1333.
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. Renton
permitted the city to regulate under its ordinance "any business ... which
... has as its primary purpose the selling, renting or showing of sexually
explicit materials." 475 U.S.
at 44 (emphasis added). Thus if the "primary purpose" -- but not the
only purpose -- of an establishment was the distribution of sexually explicit
material, then there was a sufficient nexus to the intent of the ordinance. The
intent was to prevent harmful secondary effects and there was sufficient
evidence before the city council to support its finding that such businesses
contributed to blighting. Renton, 475 U.S.
at 51-52. This finding was not affected by the fact that such a regulated
business might also sell other material, or show other movies, which were not
sexually explicit 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). 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.
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 Covina,
115 Cal.App.3d 151, 171 Cal.Rptr. 251(1981). And see Town of Islip
v. Caviglia, 540 N.E.2d
215, 225 (N.Y. 1989) ("substantial or significant portion of its
stock-in-trade"); PA N.W. Distrib. v.
Zoning Hearing Bd.,
555 A.2d 1368, 1369 (Pa. Cmwlth. 1989) ("The 'adult' businesses regulated
by the Ordinance included any establishment offering for sale any book,
publication, film, or medium depicting nudity or sexual conduct or any movie
theatre which on a regular continuing basis showed 'X' rated films") rev’d other grounds 584 A.2d (Pa. 1991);
Christy v. Servitto,
699 F.Supp. 618, 625 (E.D. Mich. 1988); ("substantial or significant
portion of its stock in trade"); Stansberry
v. Holmes, 613 F.2d
1285, 1287 (5th Cir. 1980) (regulated "sexually oriented commercial
enterprise" defined as a "commercial enterprise whose major business
is ... "); Basiardanes v. City of
Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)
("regularly" features); SDL
Inc. v. City of Houston,
636 F. Supp. 1359, 1376 (S.D. Tex. 1986) ("major business"); ILQ Investments, Inc. v. City of Rochester,
25 F.3d 1413 (8th Cir. 1994) ("substantial or significant portion"
held not vague); Pleasureland Museum,
Inc. v. Beutter, 288 F.3d 988, 993 (7th
Cir. 2002) (“significant or substantial portion of its stock-in-trade” or
“significant or substantial portion of its revenues” or “significant or
substantial portion of its interior business or advertising…”); Deja Vu of Nashville, Inc. v. Metropolitan
Government of Nashville and Davidson County, Tennessee, 274 F.3d 377, 388 (6th
Cir. 2001) (“Any commercial establishment which for a fee…, regularly presents
material or exhibitions distinguished or characterized by an emphasis on matter
depicting, describing or relating to ‘specified sexual activities’ or
‘specified anatomical areas’" and which fits into one of four adult
business categories); Z.J. Gifts D-4,
L.L.C. v. City of Littleton, No. 01-1220, 2002 WL 31546925 (10th Cir. Nov. 18, 2002)(“significant” or “substantial
percentage” of inventory, floor space or advertising upheld).
The City of Dallas
has adopted a definition in its "adult" use zoning ordinance which
has proven quite effective. The ordinance regulates "sexually oriented
businesses" defined as "a commercial establishment which as one of
its principal business purposes offers for sale or rental for any form of
consideration any one or more of the following... [sexually explicit
materials]" (emphasis added). Dumas v.
City of Dallas,
648 F.Supp. 1061, 1079 (N.D. Tex.
1986), aff'd 837 F.2d 1298 (5th Cir. 1988), rev'd
on other grounds, FW/PBS Inc. v. City
of Dallas, 493 U.S.
215 (1990). This language would apply the ordinance to video stores which
offer a wide variety of movies, including family
movies, if "one of its principal business purposes" is the rental of
sexually explicit video cassettes.
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 U.S.
15, 27-28 n. 10 (1973)].
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 Arlington, 65 F.3d 1248, 1255 (5th Cir.
1995) (upholding “no touch” provision); Berg v. Health and Hosp. Corp. of Marion County, Ind., 865 F.2d 797, 805 (7th Cir. 1989) (rejected
a vagueness challenge to an ordinance's use of the word
"entertainment"); Stansberry v.
Holmes, 613 F.2d 1285, 1290 (5th Cir. 1980) (held
terms "sexually oriented commercial enterprise" and "major business"
were not unconstitutionally vague); Alexis, Inc. v. Pinellas County, Florida, 194 F.Supp.2d 1336, 1353 (M.D. Fla. 2002)
(upholding use of the term “erotic”); J.L. Spoons, Inc. v. City of Brunswick, 49 F.Supp.2d 1032, 1044 (N.D.Ohio 1999)
(upholding prohibition against appearing in a “state of nudity”); Mom
N Pops, Inc. v. City of Charlotte, 979 F.Supp. 372, 391-392 (W.D.N.C. 1997)
(upholding “principal business purposes” and “substantial or significant
portion of its stock or trade”); Geaneas v.
Willets, 715 F.Supp.334, 337-338 (M.D. Fla. 1989)
(held that the term "buttocks" was not unconstitutionally vague); SDL Inc. v. City of Houston, 636 F.Supp. 1359, 1367-1368 (S.D. Tex.
1986), reh. denied, 841 F.2d 107 (5th
Cir.1988) (upheld words "sexually oriented business" stating that
"fair notice is given to the establishments that they are subject to
regulation”); 15192 Thirteen Mile Road,
Inc. v. City of Warren, 626 F.Supp. 803, 808 (E.D. Mich. 1985)
("escort services"); People V. Superior
Court, 774 P.2d 769, 777 (Cal. 1989) (upheld the terms "distinguished
or characterized by an emphasis" and "used" against vagueness
attack); Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 496 S.E.2d 825, 828 (N.C. Ct. App. 1998.)
(the term “preponderance” is be “reasonably specific and sufficiently
precise.”); Northend Cinema, Inc. v. City
of Seattle, 585 P.2d 1153, 1157 (Wash. 1978), cert.
denied sub. nom. Apple Theater, Inc. v. City of Seattle, 441 U.S. 945 (1979) ("adult
theater").
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. July 25, 2002)(unpublished)(employee convicted of
working without a license argued percentages of non-adult materials in an
attempt to prove that his employer was not a sexually oriented business).
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 Lewisville, 848
S.W. 2d 380 (Tex. App. 1993) (20 percent).
Several recent court rulings identify potential
trouble-spots in some 'adult use" definitions. In Wolff v. City of Monticello,
803 F.Supp. 1568 (D.Minn. 1992), the court held that a city could not sustain
regulation of businesses that offered some sexual material, but not as part of
their primary activity. Monticello
attempted unsuccessfully to distinguish between "adult use/accessory
businesses" and "adult use/principal businesses." The court
ruled that there was no evidence of negative secondary effects associated with
establishments where "adult" material was only available in a limited
fashion.
In City of Findley V. The Fantasy House, Inc., No. C5-91-8733 (10th Minn.
Jud. Dist. August 17, 1993),
a state judge enjoined Findley from enforcing a provision defining adult
novelty businesses as SOBs. (That provision was severed; the remainder of the
ordinance was unaffected.) The court held that there was no evidence of
secondary effects related to novelty businesses which sold "devices which
either simulate human genitals, or devices which are designed for sexual
stimulation." [However, since obscene devices raise no First Amendment
issues and can be totally banned, there should not be a problem regulating SOBs
that only have devices, but don't deal in videos or magazines. See Sewell v. State,
233 S.E. 2d 187 (Ga. 1977), appeal
dismissed for want of a substantial federal question, 435 U.S. 982 (1978).]
Recently, the 11th Circuit held in Williams
v. Pryor, 240 F.3d 944 (11th Cir. 2001), that an Alabama statute that prohibited commercial
distribution of sexual devices did not violate the Constitution on its
face, although the case was remanded for an as-applied analysis. The court held
that the statute promoted a state interest in upholding “public morality.” 240 F.3d at 949. On remand, the district court found the statute
unconstitutional as applied. Williams v.
Pryor, 220 F.Supp.2d 1257 (N.D. Ala. Oct. 10, 2002).
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.
Louisiana’s
Supreme Court struck down a statute prohibiting the “promotion of obscene
devices.” State v. Brenan, 772 So.2d 64, 65 (La.
2000). In discussing the case, the court mentioned that seven states have
prohibitions on sexual devices and that two other had prohibitions but had eliminated
those statutes. 772 So.2d at 69. The court found that its state’s statute had
“no rational relationship to a legitimate state interest.” 772 So. 2d at 76.
While prohibitions on sexual devices did not violate the state constitution and
did indeed promote governmental interests in public morality, the prohibition
covered too much allowable material and was not rational. 772 So.2d at 73-76. See also, David C. Minneman, Annotation,
Constitutionality of State Statutes
Banning Distribution of Sexual Devices,
94 A.L.R.5th 497 (2001)(survey of the
law on this issue).
The Supreme Court of Washington rejected a City of Tukwila
ordinance that attempted to define as "adult" uses so-called
"mainstream" video stores which had 10 percent or more of their
"stock in trade" in sexually explicit material. World Wide Video v. City of Tukwila,
816 P.2d 18 (Wash. 1991).
"Tukwila has not shown that adult businesses with predominantly 'take
home' merchandise have the same harmful secondary effects traditionally
associated with adult movie theaters and peep shows; thus the 'substantial
governmental interest' portion of the test has not been met." 816 P.2d at
21. The court also concluded that no evidence supported the notion that a store
with slightly more than 10 percent of its stock in trade in sexually explicit
material creates negative secondary effects, so the ordinance also was not
"narrowly tailored." Id.
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 Rochester's
ordinance, which dealt with "adult" bookstores "that offer both
sexually explicit and non-sexually explicit materials and allow only off
premises consumption of those materials." 25 F.3d at 1417. The court
summarily rejected this claim:
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 Renton, Rochester
need not prove that Downtown Book and Video would likely have the exact same
adverse effects on its surroundings as the adult businesses studied by Indianapolis,
St. Paul, and Phoenix.
So long as Ordinance No. 2590 affects only categories of businesses reasonably
believed to produce at least some of the unwanted secondary effects, Rochester
"must be allowed a reasonable opportunity to experiment with solutions to
admittedly serious problems." Rochester
relied upon studies that identified specific adverse secondary effects
attributable to adult bookstores. The
City reasonably believed that evidence was relevant to the problems addressed
by Ordinance No.2590. Even if Downtown Book and Video is a new type of adult
business, it may not avoid time, place, and manner regulation that has been
justified by studies of the secondary effects of reasonably similar
businesses.
25 F.3d at 1418 (citations omitted).