Legalese Column: Zoning Ordinances and Love Boutiques

This article originally ran in the January 2015 issue of AVN magazine.

For decades, volumes have been written about adult retail—for the most part about adult theaters, adult bookstores, adult video stores, adult arcades and gentlemen’s clubs. In the last decade or so, a new breed of adult business has arisen: the so-called “love boutiques.” They give rise to many legal issues, the most significant being zoning.

The trend started during the 1970s, when adult motion picture theaters were the primary source of X-rated fare. Detroit had enacted an “Anti-Skid Row Ordinance” in the early 1960s, requiring separation of classes of businesses that tended to cause so-called “adverse secondary effects”: establishments for the sale of beer or intoxicating liquor for consumption on the premises; hotels and motels; pawnshops; pool and billiard halls; public lodging houses; secondhand stores; shoeshine parlors; and taxi dance halls. (If you wonder why shoeshine parlors are on the list, understand that, back in those days, shoeshine parlors in northeastern cities were notorious hubs for mob-controlled, illegal gambling, mostly so-called “numbers” or “policy” rackets.)

In 1972, Detroit added adult motion picture theaters and similar businesses to the list, an ordinance that the Supreme Court approved in 1976 against a First Amendment challenge in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). Although only a plurality decision, it was cemented a decade later in an opinion by then-Associate Justice Rehnquist: Renton v. Playtime Theatres, Inc., 475 US 41 (1986).

The challenges in those two cases boiled down to evaluating the claim of the adult theaters that they were the subject of content-based regulation of speech because sexually oriented movies were subject to rules that did not apply to other genres of movies. The Supreme Court created a fiction to cover this that it called “content-neutral regulations,” a complete misnomer because the regulations were totally content-based.

The theory was that the regulations were okay because they were not directed at the speech itself but, rather, at the “secondary effects” of the speech. Once that theory was cemented in the zoning context, cities went crazy with zoning and other regulations of adult businesses, ranging from hours of operation, visibility of viewing booths, lighting requirements, and on and on and on.

When home video exploded in the early/mid-1980s (an explosion that was fueled by demand for adult fare, by the way), a new phenomenon occurred because Blockbuster refused to carry adult: the so-called “mom and pop” video stores.

You could open up a video store practically across the street from Blockbuster and steal a meaningful segment of their clientele who wanted to rent some spicy videos along with the regular ones. A mom-and-pop actually could charge more than Blockbuster for new mainstream releases because of customers who wanted to grab an adult video along with the new release. It was during that period, by the way, that this magazine, AVN (aka Adult Video News) was born.

Those members of the population who didn’t want adult videos sold anywhere were flummoxed. A video store that is, say, 20 percent adult obviously does not cause the kind of secondary effects that might emanate from an adult auditorium theater, a strip club or an adult bookstore with an arcade in the back. And most of the studies that cities used to prove the existence of undesirable secondary effects of adult businesses were studies of those kinds of businesses, not percentage stores.

Countless legal battles, with mixed results, ensued. Specifically, there were many battles over what percent of adult content triggered secondary effects sufficient to justify relegating the business to the industrial zone, or wherever. Because adult bookstores, along with the very profitable video fare, typically carried sex toys and novelties, some of the cities included such items in their adult zoning ordinances. However, when the ordinances were written, the focus of controversy was the thriving adult video market; so how adult novelties figured into an ordinance was a function of the mindset individual who wrote the ordinance.

As a result, there is nothing “regular” about how love boutiques are regulated because pretty much every city has its own style of doing it. However, none of the legal zoning issues above apply to novelties: they have no First Amendment protection.

In fact, a handful of states have outright prohibited sale of any “device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” Those laws have been rejected in some states, but approved in Georgia, Mississippi, Alabama and, depending upon whether you are in state or federal court, Texas and maybe Kansas. Whether some of those novelties have been “designed” or “marketed” for that purpose has been the subject of some dispute, depending upon the interpretation of some disclaimers.

Importantly, society has changed since Detroit enacted its skid row ordinance. Porn is no big deal; it is on everyone’s computer. Victoria’s Secret is in most every regional shopping mall. Because adult businesses are not so stigmatized any longer, the secondary effects analysis is different. The terrain has changed. The rules established during the years of the adult video wars have been to some extent forgotten; so many cities that have never become embroiled in adult-retail wars have profoundly unconstitutional ordinances where adult video is involved.

Moreover, politics figures into the mix. While adult video outlets no longer have the money to engage in protracted legal battles with cities over retail locations, cities are broke, too—almost universally. Most cities do not have an appetite to become embroiled in a war against an adult location. Cities are gradually waking up to the fact that the voters have no problem with Victoria’s Secret, and should not have a problem with a love boutique that looks no different from the exterior; it just has a handful of adult videos and adult novelties.

This is more of a political problem than a legal one in most cases, especially because toys have no First Amendment protection. A potential love boutique’s battle with a city likely will involve not only a lawyer, but also a local lobbyist.

There is one legal issue that often pops up in trying to open a love boutique: vagueness of ordinances. For example, “substantial” and “substantially” are words that often pop up. The reason those are such popular words is that a city wants to be able to decide what is and what isn’t an “adult” business. But that is exactly the legal problem. There is a limit to the extent that a city can design your business for you. Expect that love boutiques will more prominently dot the landscape in the future. And at least some local officials will try to stop them.