The good news about adult zoning is, even with local governments across the country being lobbied to get rid of adult businesses, and legislators threatened with reprisals at the polls if they don’t, there hasn’t been an increase in the frequency of adult retailer and nightclub zoning cases over the last decade or so.
The bad news is, with prosecutors, city councils and county commissioners wracking their brains (with the help of more than a dozen nationwide pro-censorship activists) to come up with ever-more-subtle methods to make operating an adult business more difficult, there hasn’t been a decrease in the frequency of the cases either.
"My observation is that how big a zoning problem a given locale is likely to be is not necessarily a function of whether it is a big city or a small town, and it's not necessarily a function of whether it's in the Bible Belt or not," observed First Amendment attorney and AVN columnist Clyde DeWitt. "If you're talking purely zoning, it's usually a function of who prepares the ordinance and how careful they were, and a little bit of dumb luck."
Gary Edinger, a Florida attorney who delivers twice-yearly reports on adult zoning to the First Amendment Lawyers Association, adds that religio-reactionary groups such as the American Family Association (AFA), Family Research Council and the Community Defense Council (CDC) all have created boilerplate anti-adult zoning regulations that they press municipalities to adopt. For example, the National Family Legal Foundation's 1996 volume "Protecting Communities from Sexually Oriented Businesses" is over 400 pages long and attempts to cover, step by step, the entire process of regulating adult businesses out of existence.
"I can tell you that we do have a number of cases throughout the country right now in which we are challenging, on various constitutional and other grounds, zoning ordinances or zoning-type statutes that are regulating the location of adult businesses," stated J. Michael Murray, a Cleveland-based First Amendment attorney. "This continues to be the subject of much litigation, because counties and states and cities continue to attempt to restrict, as much as possible, and frequently attempt to eliminate altogether, the possibility that an adult business can locate within their jurisdiction, and in response to a tiny minority of citizens who are very vocal in their opposition to such stores, it seems that city councils, county commissions and even state legislatures are continuing to be responsive to those pleas."
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Luke Lirot, the Florida attorney who won the Peek-A-Boo Lounge zoning case in 2003, and who is currently one of the attorneys challenging New York City's onerous zoning ordinance, has set an Internet search engine to notify him of any news stories containing the phrase "adult entertainment," and he reports that hardly a day goes by that he doesn't find another adult zoning story in his mailbox.
"Right now, it's been my experience that most of the major metropolitan areas already have zoning ordinances and that the communities that are adopting the zoning ordinances are, I'd say, some of the less urban areas," Lirot analyzed. "But I can tell you that certainly no period longer than a week goes by when some community in the United States is not trying to adopt an adult use ordinance which usually is the result of them finding out that someone is desirous of opening an adult business in their community."
AVN would like to present a map delineating which areas have the most zoning problems, but we can't. For one thing, it's almost impossible to tell where or when a politician or bureaucrat will get the urge to stifle his/her constituency's right to have access to sexually-explicit materials, and secondly, there's virtually no area of the country that hasn't faced an adult zoning dispute recently — sometimes even before an adult business has tried to locate there!
Take, for instance, Holbrook, Mass., whose seven-square-mile community currently has no adult retail outlets or cabarets. In early October, voters went to the polls to relocate the town's adult district from a main road near the town's old police station to a dead-end street near the township line. Other Boston suburbs such as East Bridgewater, Norwood, Walpole and Weymouth are among more than 30 municipalities in the state to pass zoning laws in the 1990s, and several are considering "upgrades" similar to Holbrook's, while nine more Massachusetts communities have passed new adult zoning ordinances since the beginning of this year.
Meanwhile, in Kendall, N.Y., Charles Scroger is running for the town board of supervisors in part on the platform that the town needs to implement an ordinance "to prevent the openings of establishments for adult entertainment," reported the local newspaper.
Also becoming more common is the situation where someone informs a town zoning commissioner or planning board that he (or she) intends to open an adult business in the community, and rather than welcome a new business (and the taxes it generates) into the community, the city council rushes to adopt an adult zoning ordinance.
Kentucky retailer Steve Hale is currently facing that exact problem.
"He got a piece of property and began to remodel the property with the intent of opening a retail adult business," explained attorney John Herbison. "Not long after the business license was issued, the county adopted a restrictive ordinance and the ordinance, among other things, required a license to operate. Steve made attempts to obtain a license application on multiple occasions and that application was not available, which led me to believe that the county never intended to permit him to operate anyway, so he went ahead and opened without having obtained the license, because he got tired of the exercise in futility."
Operating without a license is a dicey proposition, although many stores do it after failing to obtain permits due to alleged illegal acts by the licensing authorities. However, in Hale's case, the county took legal action.
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"As I understand it," Herbison said, "some employees were arrested, and since there was no one to physically operate the store once those persons were taken into custody, the store closed. I don't know whether it has reopened, but it was closed because of necessity; there was no one there to operate the business."
It's a situation that H. Louis Sirkin, who practices in nearby Cincinnati, is very familiar with.
"They [conservative religious groups] constantly bombard local communities and governments with letters that say, 'We understand that some crime ring' — and they always identify them as some type of organized crime — 'is coming into your community to open up in the adult business, and it's better to be prepared in advance'," Sirkin detailed. "So they [city councils] just happen to put it on the agenda, and of course, nobody's really looking at it because nobody has really tried to go in that area to open up, and so nobody ever appears in opposition. The next thing you know, somebody comes into town and they go down to get the zoning code. So the clerk goes, 'Well, what are you looking for? What kind of business?' 'Well, I'm thinking about opening an adult business here,' and lo and behold, there's a slow-down in the process; they immediately go running to the planning commission, saying, 'Oh my God, they're coming; they're coming.'"
"Then, by the time you get your approval and you start with the building plans and all that, they've now got it through the planning commission and it's on its way to council for approval," Sirkin continued, "and unless you can get started with your building and get it finished before the effective date of the zoning law, you're not going to be a non-conforming use, no matter how far along you were in your building. And if for some unforeseen reason, you're not open on the effective date [of the ordinance], you're not a non-conforming use. That's how you get screwed."
Hale's case also points up another common problem, and the main reason why zoning ordinance cases per se haven't been on the increase: Legislators have found that they can often accomplish the same goals by overregulating adult businesses regarding licensure, hours-of-operation restrictions, signage restrictions and the like in an attempt to limit patrons' access physically as well as geographically.
"They use terminology like 'if you hold yourself out'; 'hours of operation'; 'do you keep minors out?' — we're beginning to see that type of language in the definition of adult zoning, which is beginning to create more problems," Sirkin advised. "I think most communities have recognized the constitutional mandate that you can't zone adult businesses out; you have to provide some area where they can locate, but very often, they're really crappy areas of the city where you don't want to locate any type of retail business. Nobody wants to go to the swamps, the industrial sections. There was a situation in Cape Coral [Fla.] a couple of years ago; a client that wanted to go there was attempting to get a variance and had a problem about parking. They said it would block the traffic flow because if people parked, it could block the trucks that were coming down going to the loading docks of various industrial businesses. So they used that as an excuse not to allow them a variance."
Coupled with that is a deliberate lack of specificity in many laws, zoning and otherwise, as to what exactly constitutes an "adult business."
"What they've been doing is they've been playing around with particular wordage," Sirkin said. "They've been using terms like 'substantial business purpose', 'significant business purpose', 'as one of its primary business purposes' — you know, language like that which really become very difficult to attack, since they never really define what is meant by 'purpose'. About two months ago, Alan Begner and I won a real good one in Georgia — 105 Floyd Road v. Crist County, Georgia — on the definition of what 'substantial business purpose' was for determining what an adult bookstore was under zoning. The Georgia Supreme Court said, 'Wait a minute; that terminology is rather vague, trying to determine what somebody's 'purpose' is.'"
As happy as some communities have been to word their ordinances as vaguely as possible, others haven't hesitated to use numbers.
"Some ordinances are now beginning to use percentages," Sirkin explained, "saying that if more than 10 percent of the space, inventory and/or gross revenues are from adult. We've seen figures as low as 10 percent; we've seen 25 percent. I think St. Louis County in Missouri, it's 20 percent."
Some communities have even defined "adult" as low as 1 percent, but needless to say, the lower the percentage, the more easily that number can be challenged in court.
Nowhere was the vagueness problem more evident than in New York City's adult zoning ordinance, pushed through by Mayor (and First Amendment enemy) Rudy Giuliani.
"In 1995 the city of New York adopted very, very onerous adult use restrictions," Lirot recalled, "and there was a relatively unsuccessful result to the initial court challenge, but the adult entertainment industry, being the poster child for Darwinism that it is, found a way to implement Plan B. Once there was a formal interpretation by the city's zoning coordinator of what 'significant or substantial' meant in defining what 'adult' was, everybody said, OK; you've interpreted it; we will cooperate and respond accordingly.'
“That wasn't good enough for them. They said, 'Wait a minute; we don't want you to cooperate; we want you to die.' Now, what happened was, the city started to accuse all of the different businesses, both bookstores and cabarets, of taking advantage of a loophole, which I think is a profound insult, since it was them that interpreted the code and us that complied with it."
The interpretation was that if a business had 40 percent or more of its floor space devoted to adult products or entertainment, it was considered "adult" and subject to all the restrictions of the ordinance. This resulted in bookstores adding hundreds of mainstream videotapes and DVDs to its display racks, and nightclubs opening up retail sections selling souvenirs, t-shirts and other non-sexual items, in order to comply with the new "60/40 rule."
"They thought, 'Well, these guys can't operate with 40 percent'," analyzed prominent First Amendment advocate Paul Cambria, whose office has been involved in the New York zoning fight since its inception. "Then when they found out the businesses could operate with 40 percent, they're like, 'Oh, boy; back to the drawing board.'"
Angered by a judge's ruling that the city had to live with its 60/40 interpretation, the city council tried to amend its zoning ordinance in 2001, shortly after the 9/11 attack.
"The security that one had to go through to get to the New York City Council chambers was phenomenal, and Mayor Giuliani had to excuse himself that day because it was one of the first deaths from anthrax, when the anthrax mailings were rampant," recalled Lirot, who attended the session. "I had never been to an event like the New York City Council's meeting. They're walking around, they're eating microwave popcorn, they're telling jokes in the corner, and meanwhile, there's somebody trying to make a presentation on one of the many things that are on the agenda.
“There were so many distractions, I don't think anybody truly understood what it was they were adopting. I was curious as to what evidence they would put forward in order to support this new amendment to the zoning code, but they put forth nothing, and that's been the crux of the battle ever since."
The main reason evidence is the "crux of the battle" is the U.S. Supreme Court's 2002 decision in City of Los Angeles v. Alameda Books, and to a lesser extent, later decisions by the Eleventh Circuit Court of Appeals in Flanigan's Enterprises v. Fulton County, Georgia and Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Florida.
"In Renton [v. Playtime Theatres]," wrote Justice Sandra Day O'Connor for the high court majority in Alameda, "we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held that a municipality may rely on any evidence that is 'reasonably believed to be relevant' for demonstrating a connection between speech and a substantial, independent government interest. ... This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its ordinance.
“If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance."
Alleged "secondary effects" remains the primary vehicle by which municipalities can zone and regulate adult businesses, and they can be very difficult to fight.
The latest gimmick, according to DeWitt, is, "Somebody comes up in the city council and says, 'Well, I've checked out these adult bookstores and around them is litter, and the litter is in the nature of the packaging from pornographic materials,' and the opponent says, 'Well, here's an expert and he did a survey, and the survey resulted in a finding that there's no litter.' The problem is, the court then says, 'But, well, you didn't refute that guy who testified that he saw litter.' Well, we didn't get to call him as a witness, so how do you prove a negative?"
DeWitt continued, "What gets even worse than that is, you take it to the next step, because remember that Renton says that one city can borrow studies from the others, so here's city #2 halfway across the country that says, 'Wow! We read the case about the litter, and that guy that testified the anecdotal evidence about the litter; we believe him.' Now, how does somebody challenging the ordinance halfway across the country disprove what somebody said at some city council hearing in Podunk somewhere five years ago when the guy who gave the testimony might be dead — or 20 years ago or in 1977, which is when the Los Angeles study was done? So they're finding ways to bring the secondary effects hocus-pocus to a ridiculous level that pretty much any dog-and-pony show that the city can put on carries the day."
No matter how much evidence of adult businesses' harmlessness is presented, legislators are free to ignore it by ostensibly choosing to believe the horror stories told by local residents and/or those contained in "secondary effects" studies, some of which date back almost 30 years. However, under the Alameda doctrine, if the dispute winds up in court, the judge must consider the adult businesses' exculpatory evidence — and in some cases, the municipality itself makes it that much easier to do.
For instance, in the Flanigan's case, Fulton County commissioners were so sure that adult cabarets brought down property values in their areas and resulted in more police calls to their locations than any other business that they commissioned studies to prove what they already "knew." However, when the county's studies showed just the opposite of the commissioners' assumptions, the commission decided to ignore its own studies and instead rely on past studies from other jurisdictions. Sorry, the Eleventh Circuit said.
"In order to meet their burden under this element, the Defendants must have 'some factual basis for the claim that [adult] entertainment in establishments serving alcoholic beverages results in increased criminal activity' and other undesirable community conditions," the court said. "In terms of demonstrating that such secondary effects pose a threat, the city need not 'conduct new studies or produce evidence independent of that already generated by other cities ... so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.' ...
“We do not think that Defendants had any reasonable justification for amending Section 18-76 when the county's own studies negated the very interests it purportedly sought to prevent."
Lirot's Peek-A-Boo Lounge case took that finding one step further.
"There were two ordinances involved in Peek-A-Boo," Edinger explained. "One of them was not supported by any evidence at all. That was just like Flanigan's, and the court had no trouble throwing that out. The other one was directly questioned by a study that Randy Fisher did in Manatee County, which again found no adverse secondary effects, and those are very typical findings.
“The Peek-A-Boo Lounge in Manatee County had been in business apparently for many years, and so actually had a track record in the community, and the argument, of course, is, other than just being irresponsible, it's illegal or unconstitutional for these governments to rely on these old, outdated studies that have nothing to do with their community when information from their own community is readily available."
Where First Amendment attorneys have the most success against anti-adult ordinances, however, is in the area of "conditional use permits" (CUP) — special exceptions to the zoning code that allow adult businesses to locate in areas for which they are not properly zoned, of if the business is already there, to remain there, often for a specific period of time (called "amortization"), after which it must move or close.
"I've got two zoning cases in Missouri right now and two in California," noted Bradley Shafer, a First Amendment attorney best known for his defense of adult cabarets. "One of the California cases is a zone-out, where the business is allowed theoretically to go to three places but it really can't because of all the distance requirements, and the other one is, we just believe there are not enough sites available. All the published decisions so far that have decided this issue have ruled that those type of conditional use permitting provisions are unconstitutional, but that has not stopped municipalities from enacting those laws."
DeWitt added, "I think that's the place where Alameda Books has changed things, because if they identify four sites in a city of 250,000 people, which is not very many, and in any other circumstance, you ask a real estate broker, 'Well, if I have four sites to choose from to put a particular business on regardless of what kind it is, is that enough so you could make it work?' they would say, 'No way; you need 10 or more.'
“The occupancy rate for commercial buildings in Los Angeles is what? Eight-five or 90 percent? And when you add the factor of there's some people who don't want to rent to adult businesses, and some shopping centers and the like where there are CCNRs — covenants and conditions of record — that say that you can't have any X-rated businesses there, so that when somebody signs a lease, they know that they won't wind up next door to a porn shop — the distinction is between whether they are legal and it is physically possible to put an adult business there versus whether you could actually do it."
"The Topanga Press [v. City of Los Angeles] case addressed that,” DeWitt continued. “Three of the places that L.A. identified as being places where you could have adult businesses without violating [Municipal Code Sec.] 1270 were Dodger's Stadium, Van Nuys Airport and LAX, and the courts have pretty much said, 'Well, look, if Dodger's Stadium is already there, that doesn't really do anybody any good. But, if you have — here's a vacant piece of land; you could build a building there.'"
Edinger knows several attorneys who have been successful in arguing, in areas where the comprehensive zoning plans of some states contain statements to the effect that retail businesses shouldn't be in industrial zones, that such zones should be excluded from a city's claimed available locations.
"So one argument we bring is that if they are going to be in the industrial districts, then there has to be some minimal infrastructure," he said. "There really have to be streets and water and sewer so that people can actually go out there and build a building or rent as if they were in a commercial district, and the courts seem to be somewhat sensitive to that distinction. Really, it's not quite what the Renton court had in mind, to relegate these businesses just to industrial zones."
Luke Lirot agreed: "You can't say, OK; we've created a district for you. It's behind the incinerator, next to the sewage treatment plant, next to the nuclear reactor, just behind our toxic waste dump. And by the way, it has no sidewalks, no lights, no infrastructure. Have at it and enjoy.'"
Beyond inadequate relocation site problems, Sirkin warned that some would-be adult business owners are being tripped up by procedural issues such as "change of use" requirements.
"The government has finally learned that, to be a non-conforming use, you have to have been a lawful use when the law went into effect," Sirkin explained, "and what happens very often, if people go into, say, a restaurant and they get building permits to put in lighting or whatever else, it may be that it's in a business zone that you could have retail businesses, but the kicker is, you're changing the nature of the business; you're changing it from a restaurant to a retail store, and in very many places, you have to get a change of use permit. And if you didn't get the change of use, even though you're open, you weren't lawful. Many people get zapped with that, and they don't realize that. You just can't go and take a restaurant and make it a bookstore."
Another aspect of Alameda Books that Lirot hopes will lead to adult victories in court is found in Justice Anthony Kennedy's concurring opinion.
"In Renton, the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not," Justice Kennedy wrote. "The challenge is to correct the latter while leaving the former, as far as possible, untouched. ... The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech. A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech. ... As discussed above, a city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact."
"This is an issue that I've been trying to get the courts to look at," Lirot explained, "that the evidence submitted to support the ordinance has to have some nexus to the restriction imposed. Forinstance, you'll go to a [city council] meeting, and they'll say, 'We've got 11 cars that have been broken into on the street; therefore, dancers have to be six feet away from patrons.' That's the logic and the trend these days."
Moreover, he said, "if you're afraid that a dancer and a patron are going to engage in some kind of illicit activity, that's a primary act; it's already illegal, so as far as trying to adopt a rule that's the least burdensome and narrowly tailored and things like that, all you're doing is double-bumping what's already on the books, but you're making those regulations enforceable solely in the context of adult businesses. So the problem is, they're using secondary effects data for arguments to support primary effects regulation, and I've been able to tickle a couple of judges into actually considering this and recognizing the doctrine, but in the cases that I've had, both times I've been successful on other grounds and they haven't really delved into that to the point where I'd like to make that distinction."
Lirot also lauded the Free Speech Coalition and the Association of Club Executives, both adult trade associations, for enlisting the services of experts such as Dr. Daniel Linz and Bruce McLaughlin, who have done their own "secondary effects" studies and have also created what Lirot described as "a compendium of the flaws in the majority of the general governmental studies that you see popping up all over the place."
Edinger also sees this as a big step forward.
"Thanks to the efforts of Dan Linz and Randy Fisher, who are noted experts in our field, there are starting to be quite a number of studies generated all across the country which discount this idea of adverse secondary effects," Edinger said, "and in contrast to the usual junk you would see in an AFA or CDC publication, these tend to be very rigorous, statistically valid studies that our industry funds, so when the [zoning] commissions rely on reports that are 20 years old from cities across the continent from where they are, we're able to go in and say, 'Look when we do a study in this very city, we find none of these adverse effects.' And I understand that occasionally a government is swayed by that. Generally they're not, but we are doing much better in court on these issues."
So what can an adult business do to prevent being closed down or "amortized out" by oppressive zoning and other "internal" regulations? Every attorney we contacted was adamant that there's no excuse for an adult business owner not to keep him- or herself aware of what regulatory schemes are being put before city councils and other governing bodies, and Shafer commented that he knows of several club owners whose employee rosters include the position of "community relations person" — someone whose job it is to keep abreast of impending legislation and to keep an eye on which groups are agitating for anti-adult measures within the community.
Sirkin is a big proponent of adult businesspersons being entirely upfront with authorities when they intend to locate in a community.
"My feeling is that I don't like anybody to come in and be deceptive, and that's both in the negotiations with the building owner and in negotiations and discussions with the governmental body," Sirkin said, "because what happens is, if you go into an area and try to be sneaky and all that kind of crap, at some point, they're going to discover what you're up to. At that point, you may have expended a tremendous amount of money, and the one thing you don't want to get hit at is that you were not fully honest with them, because they will take your license — not as a prior restraint, not because you're adult but because there's a false statement on your application."
But given the prevalent anti-adult attitude in many communities, isn't a little stealth called for?
"The problem with that is, if you're going to run into those kinds of problems, isn't it better to know it in advance than to try to go in there and spend the money?" Sirkin argued. "At some point, you want to put your signage up and whatever, and it's better to know if you're going to have those kinds of problems and to figure it out ahead of time and then make your decision whether to go in or not. It's now very hard to sneak into a community and just all of a sudden open up, and here I am, the adult emporium."
He noted that Larry Flynt was completely open about the fact that he wanted to locate a Hustler Hollywood store in Monroe, Ohio.
"We told the city up front that it was not going to meet the definition of adult, and there was no basis for them to stop it on those representations, so from the minute the groundbreaking took place to the moment the store opened, everybody in the world knew that that was going to be a Hustler store," Sirkin explained, "and in the six or seven months that it took to build the place, they had all that opportunity to promote it, so when the grand opening came, it was no surprise, it was no sneak-in, and it didn't open with the surrounding hassle. It's a great store, and I think at this point it's been pretty well accepted by that community, and they love it."
Most of the attorneys also
