EFFECTIVE REGULATION

Answers to frequently asked questions about effective regulation of sexually oriented businesses are arranged according to the following topics. The numbers in parentheses following each answer refer to the chapter and section of our legal manual where the issue is discussed.

The Problem of Sexually Oriented Businesses
Basic Constitutional Considerations
Making the Legislative Record
Defining an 'Adult' Use
Time Regulation - Hours of Operation
Place Regulation - Zoning
Manner Regulation - Interior Configuration and Licensing
The Problem of Nude Dancing
Public Nuisances and Other Issues

The Problem of Sexually Oriented Businesses

An establishment that regularly exploits interest in sex in a graphic manner; also referred to as a "sexually oriented business", or "SOB."

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)

For many years, organized crime has controlled the national distribution of hard-core pornography, and thus 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 have controlled entire chains of sexually oriented businesses. In recent years, the control of sexually oriented businesses has become decentralized and more diversified, but organized criminal activity continues in many establishments. (1.5)

"How do communities prevent the crime and harmful effects of SOBs?" Communities that have been the most effective in protecting their neighborhoods 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 manual. (1.6)

Basic Constitutional Considerations

The Supreme Court has rule that regulations of sex businesses are constitutional so long as they are not aimed a preventing speech ("unrelated to the suppression of free expression"), but rather are directed at stopping the "negative secondary effects" associated with "adult" establishments. Thus, if your intent is to protect neighborhoods keep crime down and preserve property values, and if you still allow the pornographic speech to occur subject to certain regulations, there is no constitutional violation. (2.2)

Because there is a presumption of First Amendment protection for all establishments that deal in "speech-related" materials. Given that presumption, you must allow them some "reasonable alternative avenue of communication" within your community. (2.1)

Yes, but that is a separate legal matter. Even in obscenity law, you presume the material is First Amendment protected until an obscenity conviction is obtained. But for purposes of a city's attempt to regulate a sex business, you must presume that establishments with thousands of books, magazines and videos are engaged in some protected speech activities. (2.1)

Making the Legislative Record

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 motiva-tion 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)

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 SOBs' 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 sec-ondary effects; and

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

Defining An "Adult" Use

If a theater on rare occasions shows an X-rated film, can it be defined as an "adult" use? Probably not. No business can be regulated as a sex business unless it falls into the category of those that create "negative sec-ondary 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 distri-bution of sexually explicit material as "a principal business pur-pose" 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 reg-ulate 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)

Time Regulation - Hours of Operation

In the leading federal appeals court case, the state of Delaware required all SOBs to be closed from 10 p.m. to 10 a.m. Monday through Saturday and all day on Sunday. (5.4)

An SOB did prove that in the Delaware case, but the court upheld the law anyway because it was content neutral and designed to prevent negative secondary effects. (5.3)

The court held that the 3,600 hours per year for sexually explicit speech allowed by the ordinance was reasonable and sufficient under the Constitution. (5.4)

Place Regulation - Zoning

No. Because these regulations are not prohibitions on speech but mere restrictions on locations for exercising speech, a complete prohibition is presumptively unconstitutional. The only possible exception might be a small bedroom community that has no commercial district whatsoever, but that case has not been brought. An argument might also be made for allowing a city to enact such an ordinance if it is surrounded by municipalities that have room for SOBs, but courts are generally unwilling to accept this justifica-tion because nothing would stop other neighboring communities from enacting a similar ordinance under the same theory. (6.1)

No. Courts uniformly reject such ordinances. (6.1)

There is no magic number, and courts in various jurisdictions have come to different conclusions about what is reasonable. From a percentage standpoint, as little as 1 percent of a city's acreage has been held sufficient, while other courts have ruled as much as 7 percent insufficient. Courts seem to be moving in the direction of examining available sites for SOBs, rather than acreage, and deter-mining reasonableness by comparing available sites to the number of SOBs currently operating or interested in operating. You must review the caselaw in your jurisdiction to get a sense of what courts in your region find permissible. (6.3)

While the Supreme Court seemed to speak clearly in holding that economic viability was not a factor in this consideration, and that cities were not required to guarantee prime business land for SOBs, lower courts are split on whether land is truly "available" when it is tied up in long-term leases or when there are no roads or infrastruc-ture in a location to support any business operation. (6.3)

Not necessarily. While some states do not allow amortization, many jurisdictions allow you to place a time limit (sometimes as short as three months) during which a business must come into compliance with the new ordinance by moving, changing its opera-tion or closing down. These clauses are uniformly upheld in the SOB context. (6.4)

Manner Regulation

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 Problem of Nude Dancing

Nude dancing establishments are typically associated with prostitution, public sexual contact between dancers and patrons, drugs and other criminal conduct, including higher incidences of sexual assault. (8.1)

The Supreme Court has ruled that it is at the outer parameters of the First Amendment and that whatever speech component it con-tains can be overridden by a community's concern for the negative consequences of establishments offering nude dancing. Thus, pub-lic nudity can be prohibited in establishments open to the public, even so-called "juice bars" that do not have liquor licenses. (8.3)

Virtually every state has some sort of regulation of nude dancing in bars, but most states could substantially strengthen the restrictions. Under the police power, states and subdivisions of states may completely prohibit any nude con-duct in establishments licensed to sell liquor. (8.2)

An area of growing concern to many communities is the influx of nude dancing establishments, touted by their owners as the "safe sex alternative in adult entertainment." Bars offering nude dancing have been regulated for years, but communities have struggled with regulation of so-called "juice bars" -- establishments without liquor licenses that offer completely nude dancing. As we consider specific legal responses to these types of sexually oriented businesses, we first must recognize the significant harms they bring into any community.

Public Nuisances and Other Issues

Yes. The Supreme Court has ruled that even "adult bookstores" can be closed if they are proved to be a "public nuisance" in that they are essentially houses of prostitution and meeting places for public sexual contact. Statutes that target for closure businesses that knowingly allow illegal conduct in violation of the law are valid even if the business is allegedly selling First Amendment-protected items. (9.1)

Yes, and a few states have gone that route, although it is never justi-fied because no framers of state constitutions intended to protect sexually explicit speech. However, you must examine the cases construing your state constitutional protection for freedom of speech and privacy to be prepared for any trouble spots. Defense lawyers are raising this issue in virtually every sexually oriented businees case. (9.2)