Ordinances are uniformly upheld that require doors
to be removed from booths, visibility into the booths from an on-duty manager,
and minimum lighting requirements. In addition, you can forbid sexual contact
on the premises; in a nude dancing establishment, you can prohibit "couch
dancing" or any other contact between dancers and patrons, and can require
dancers to stay on stage and maintain a certain distance from patrons. (7.1)
While this is an area fraught with constitutional
difficulties, you can clearly require SOBs to pay license fees that are revenue
neutral so that background checks can be run on owners for relevant criminal
conduct, and to determine compliance with health and safety codes along with
other aspects of SOB regulation. To be constitutional the licensor must be
without discretion, but merely following a set of rules and guidelines for
issuing the license. The ordinance must contain specific time limits for
responding to license applications, and prompt judicial review must be
available when a license is denied. Employees may also be licensed so that the
police can check for a criminal background. (7.2)
There are two primary methods of regulating the manner of
operation for sexually oriented businesses. These are: regulating the interior
configuration of SOBs; and licensing SOBs, their owners and employees.
The problems associated with "peep show" booths
were documented in graphic and repulsive detail in Chapter 2 of this book. To
summarize, the typical "adult" bookstore has dim, smelly and private
back rooms where for a quarter patrons can view brief sexually explicit videos.
Functionally, however, these "peep show" booths exist as a meeting
spot for men to engage in anonymous oral and anal intercourse, or for men to
expose themselves and masturbate. Owners of sexually oriented businesses know
this because they are aware of the holes in the walls, and they hire people to
clean up the bodily fluids and used condoms from the booths.
In one
My only purpose going to the bookstore was to pick up a
sex partner. I would stay out cruising the parking lot, and then would stop and
park. Only a few minutes would pass and I would have a male approach me and ask
me what I would like. I would state I was just looking for action. The next
question that was almost always asked, are you a cop. I would state no, and
almost instantly he would start feeling his private area and state I will give
you head for $20. I stated I didn't do sex for money. I would then go inside
the bookstore. I would say that there was usually four to five solicitors in
the lot at one time. I constantly watched guys get into the cars (guys that
approached me for money) and drive off and return 20 to 30 minutes later. I
knew they were only driving a few blocks away or around the comer and having
sex in the car. Most of the time it wouldn't take long and the same person
would be back in another car, driving off with another person. Mostly it was
younger guys picking up on older men. On a normal cruising night there could be
50 to 100 cars just cruising the area looking for sex. Most of the time, most
just cruised flashing lights, parking in parking lots, getting out talking to
each other. Then usually one guy would get into the other guy's car and drive
off for a half hour and then return. Cars were always stopping in the middle of
the road, driveways, and business parking lots. After the contact was made, sex
usually occurred in the surrounding neighborhood. This is the way I usually
conducted my activity. I would say that 65-70 percent was done this way. Then I
would hit the bookstores. I would state from my personal experience that 90
percent of the bookstore's intention for business is to promote sexual
activity. I looked for bookstores that had doors that locked so I could have
sex. I never occupied another booth with another person because I was afraid of
being caught. But, I was very seldom in one, when I didn't see two guys coming
out of a stall. I looked for bookstores that had holes cut into the walls.
These holes were big enough that oral sex could be conducted. One time I
thought I was having oral sex through the hole and discovered it was anal. Many
times I would enter the booth and the guy would shove his penis through the
hole without even saying a word, wanting head. Many times I was offered a
rubber so I could have anal sex. Always the bookstore was dirty. I would see
used condoms on the floor, dirty paper towel, semen on the floor and
advertisements written on the walls for sex and phone numbers. People always
watched who went into a certain booth, and if they were interested, they would
go into the next one to have sex. Most of the time I would watch other sex acts
from the hole. I got to know a lot of male prostitutes even though I wouldn't
pay for their services. I [k]new one guy by the name of Tom who showed me $200
he made in one night. Tom told me he also did heroin and had been in and out of
jail for robbery and drugs. Several times I would give Tom a ride to
Buena-Clinton area where I [k]new he bought drugs. I would never give him a
ride back because I didn't want to get caught with him with drugs and I didn't
do drugs. Tom always offered me some and I declined. Tom always told me how
much money he made doing prostitution and drugs. He also told me how he would
jack roll older clients because they couldn't defend themselves and they wouldn't
report it to the police because of publicity. I observed Tom beat a guy up one
night outside the bookstore for not paying him back for drugs. Then another
night this male prostitute by the name of Carl stated he had this girl I could
get with for $30. I gave him the money and the girl wasn't there. I was going
to beat Carl up for ripping me off. Carl was arrested for robbery before I got
the chance.
I went to the bookstore mainly for sexual purposes. There
was nowhere else I could go where I could find everything I was looking for. I
[k]new the bookstore owners knew what was going on but was only looking for
money. I look back on how these bookstores have ruined my life. They aren't
there for personal enjoyment. They are
there to promote sex, violence, prostitution and selling of drugs. When a[n]
owner knows illegal activity is happening and does nothing to prevent it, he
should be closed down for public safety. This is illustrated by holes in the
wall for sex. If holes weren't there or doors weren't there, I can guarantee
there would be none or little business.
Declaration of Herbert Hall in People v. Welty, Case No. X-605395, Superior Court of
the State of
Because of the rights of communities to legislate in the
interest of the public health and safety, and because these establishments so
clearly are health and safety hazards, a number of regulations of “peep
show" booths have been enacted, and they are almost uniformly upheld. All
of these regulations have the expressed purpose of preventing dangerous and
illegal public sexual activity from occurring. They do not interfere at all
with the right of patrons to view sexually explicit videos; they simply regulate the manner in which those videos can be watched.
Open Booths
One of the most effective methods of preventing dangerous
public sexual activity in "peep show" booths is to require one side
of every booth to be open so that the interior is visible by direct line of
sight from the manager's station, or even from anywhere else in the main part
of the store. E.g., Pleasureland
Museum, Inc. v. Beutter, 288 F.3d 988, 1003 (7th Cir. 2002)
(holding that open booth restrictions are content-neutral and aimed at
secondary effects); Matney v. County of Kenosha, 86 F.3d 692, 698 (7th
Cir. 1996) (“[W]e thus conclude … that [open booth restrictions are] a
constitutional time, place, and manner restriction.”). The ordinance may also
require a manager to be on duty in the manager's station at all times the store
is open, and hold him responsible for making sure the "peep show"
booth rules are followed. The SOB can be required to submit detailed blueprints
showing the layout of the store and demonstrating compliance with the open
booth and manager's station requirements.
See, e.g., Pleasureland
Museum, Inc. v. Beutter, 288 F.3d 988, 994 (7th Cir. 2002)
(“[T]he [permit] application shall [include] a diagram of the
premises….”).
One Person Per Booth
Another typical regulation that is normally upheld is a
requirement that the private viewing rooms be used by only one person at a
time, again to prevent unlawful sexual activity between patrons. The manager
can also be held responsible for making certain no more than one person is in
each booth. E.g., Bamon Corp. v. City of
Minimum Lighting Requirements
Obviously, it will do no good to have "peep show"
booths open by direct line of sight to a manager's station if they are so dark
that no one can see into them and observe whether more than one person is
inside and whether illegal public sex acts are occurring. Thus, courts have
upheld minimum lighting requirements, usually
put in terms of footcandles measured at floor level. See, e.g., N.W. Enterprises, Inc. v. City of
No "Glory Holes"
"Glory holes" are small holes punched in the side
of "peep show" booth walls so that patrons can engage in anonymous
anal or oral intercourse. It is permissible to require that managers ensure
that walls are continuous from floor to ceiling and without any holes or
openings. See Bamon Corp. v. City of
Cleaning Requirements
Again for reasons of public health, the manager can be
required to maintain all booths in a clean manner, free from semen, urine,
feces, needles and trash. E.g., Scope
Pictures, of Missouri, Inc. v. City of Kansas City, 140 F.3d 1201, 1206 (8th Cir.
1998) (holding that a regulation requiring booths to be “clean and
sanitary” is not vague).
The typical challenge to "peep show" booth
regulations is grounded in the First Amendment right to view sexually explicit
fare, along with the constitutional "right to privacy," which
ostensibly can be found in either the Fourth or Ninth Amendment if you know
where to look.
The U.S. Court of Appeals for the Sixth Circuit rejected both
of those constitutional arguments in Bamon
Corporation V. City of Dayton, 923 F.2d 470 (6th Cir. 1991). The
court established that
[The ordinance] neither limits the number of viewing
booths, nor attempts to regulate the material shown in the booths. The
923 F.2d at 474. The court went on to reject the right to
privacy argument, holding that whatever constitutional rights belong to
citizens to view sexually explicit films in their home, viewing them in places
of public accommodation removed any privacy claim.
Open booth ordinances have also been challenged on equal
protection grounds because of the differing treatment of "peep show"
booths showing sexually explicit fare, versus hotel rooms offering similar
movies. A federal court in
The Eighth Circuit in Doe
V. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990), upheld a
typical ordinance against the usual constitutional challenges, including an
equal protection challenge, while also rejecting a claim that the owner's First
Amendment rights were violated because the ordinance deprived him of the
ability to survive economically and continue offering sexually explicit fare.
The court was not persuaded: "[The owner] has a first amendment right to
display his videos and dancers, but he does not have a guaranteed right to make
a profit." 898 F.2d at 621.
Many other cases have upheld similar interior configuration
requirements. See Pleasureland
Museum, Inc. v. Beutter, 288 F.3d 988, (7th Cir.
2002); Scope Pictures, of Missouri, Inc. v. City of Kansas City, 140 F.3d 1201 (8th Cir.
1998); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir.
1996); Mitchell v. Commission on Adult Entertainment Establishments of State of
Del., 10 F.3d 123 (3d Cir. 1993); Berg v. Health and Hosp. Corp. of Marion
County, Ind., 865 F.2d 797, 802-803 (7th Cir. 1989);
Wall Distributors, Inc. v. City of
Newport News, Va., 782 F.2d 1165 (4th Cir. 1986); Ellwest Stereo Theatres, Inc. v. Winner,
681 F.2d 1243 (9th Cir. 1982); Matney v.
When a sexually oriented business knowingly allows sexual
activities within "peep booths" or on the premises, it is
constitutionally permissible to require the closure of the establishment. This
is allowed despite First Amendment claims of an unconstitutional prior
restraint. Thus, a city may constitutionally adopt an ordinance requiring
closure of an entire premise as a public health nuisance if the establishment
knowingly allows prostitution, lewdness or assignation on the premises.
The Supreme Court in Arcara
V. Cloud Books, Inc., 478 U.S. 697 (1986), squarely
addressed this issue. In Arcara, an
"adult" property use which sold sexually explicit magazines also
contained "peep booths." The establishment routinely allowed
"masturbation, fondling, and fellatio by patrons on the premises of the
store, all within the observation of the proprietor." 478
The legislation providing the closure sanction was directed
at unlawful conduct having nothing to do with books or other expressive
activities. Bookselling in an establishment used for prostitution does not
confer First Amendment coverage to defeat a valid statute aimed at penalizing
and terminating illegal uses of premises. The legislature properly sought to
protect the environment of the community by directing the sanctions at premises
knowingly used for lawless purposes.
Closing sexually oriented businesses as public nuisances
will be explored in more detail in
Chapter 9.
Another aspect of regulating the interior of sexually
oriented businesses applies to public nude dancing establishments where
"lap dancing" and other sexual contact occurs between dancers and
patrons. See Hang On, Inc. v. City of
In order to keep track of the sexually oriented businesses
and employees in a community, it is important to enact a license or permit
requirement for SOBs.[2]
However, under current caselaw there are significant constitutional problems in
many jurisdictions with certain types of licensing regulations that have become
almost standard in the typical sexually oriented business ordinance. Some
types of licensing regulations are permissible in some jurisdictions and not in
others. In this section we will survey licensing options for communities with
the objective of pointing out those that have been successful and those that
have met with significant constitutional difficulties.
The governmental interests involved in licensing SOBs and
SOB employees are significant. They include the right of communities: to
monitor businesses for violations of their building code, to zone and require
interior configuration requirements; to monitor employees to make certain
criminal laws against public sexual activity, prostitution, and obscenity are
not violated; to make certain minors are not being employed in sexual
contexts; to protect the public health by verifying that health code and other
rules are followed; and to make certain organized crime figures are not
involved in ownership and supervision of SOBs.
In City of Renton V. Playtime Theatres, Inc., 475 U.S. 41(1986), the Supreme
Court established the right of municipalities to treat SOBs differently than
other kinds of businesses, based on the type of "speech” SOBs
engage in which causes negative secondary effects on the community. We also
know from other Supreme Court decisions that municipalities have the authority
to license conduct "commonly associated with expression," for
example, in requiring parade permits or regulating the location of news racks. City of
However, because permits and licensing schemes generally
require the prior approval of a governmental agency before First Amendment
rights can be exercised, they are technically considered prior restraints on
speech. As such, they are closely scrutinized by courts.
The general rule on prior restraints is that they are
presumptively unconstitutional. Southeastern
Promotions, Ltd. V. Conrad, 420
For many years it was unclear whether these rules applied
to SOB licensing schemes. The Fifth Circuit had rejected the use of prior
restraint doctrine in approving a Dallas SOB licensing scheme and treated it as
a content-neutral time, place and manner regulation because it was directed at
the secondary effects of SOBs. FW/PBS,
Inc. v. City of
The Court fractured into three separate camps: three
justices agreed with the Fifth Circuit that prior restraint doctrine did not
apply; three believed the full Freedman standards
should be employed; and three in the middle created a modified Freedman and wrote the plurality opinion
striking down the ordinance.
According to the plurality, two elements of Freedman were "essential" even
if the regulations were content neutral (an issue the Court did not reach):
first, the licensor must make the decision whether to issue a license within a
brief, specified and reasonable period of time; and second, there must be the
possibility of prompt judicial review in case the license is erroneously
denied. 493
The
The fallout from FW/PBS on lower courts has been
substantial. Indeed, this remains a developing area of law, with a great deal
of on going litigation and new decisions being handed down with regularity.
Some decisions on specific provisions of licensing schemes are in total
conflict with decisions of other courts.
Discretion of Licensor
The general principle here is that licensors must not be
allowed to accept or reject licenses based on their own predilections or moral
considerations, but must instead apply clear, specific guidelines in a robotic
fashion -- in other words, if the business meets certain requirements, the
license is essentially automatic.
Where an "adult" use zoning ordinance vests
unbridled discretion in a public official regarding decision making
activities, it is susceptible to constitutional attack. It is a settled
constitutional principle that any license requirement for an activity related
to expression must contain narrow, objective, and definite standards to guide
the licensing authority. See Shuttlesworth V. Birmingham, 394
Any subjective judgments required by an ordinance should be
controlled by standards "susceptible of objective measurement." Keyishian V. Board
of Regents, 385
Dumas V. City of
The Dumas court also rejected a
similar challenge to other portions of the ordinance.
The findings the police chief must make in licensing
sexually oriented businesses are based on objective determinable facts, and
are thus permissible [cites]. Age restrictions are factually based ... as are
determinations of past due fees and taxes ... and false statements on
application forms. see Schope, 647
S.W.2d at 680 upholding ordinance including such factors); Bayside
Enterprises v. Carson, 470 F.Supp. 1140, 1148
M.D. Fla. 1979) (upholding unpaid tax or fee provision); Genusa v. City of