Detractors of adult material are just as opposed to percentage stores as they are to full-blown adult ones. To them, a percentage store is just an adult bookstore inside of a general emporium. They object to their darling children seeing an adult section in a general business as much as to their seeing a freestanding adult business.
Percentage stores have met with mixed results in court as of late, in an odd mix of successful cases in Texas and Tennessee and an unsuccessful one in the San Francisco-based Ninth Circuit.
The Supreme Court has not yet dealt with percentage stores. You will recall that the three Supreme Court cases addressing adult zoning ordinances all involved fully adult businesses. In Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), a plurality of the Court approved an ordinance forbidding the concentration of adult businesses and other types of businesses believed to cause urban blight by their concentration. In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), a majority approved an ordinance forbidding such businesses from locating within 1,000 feet of any residential area, church, park or school, based upon findings of adverse effects on neighborhood children and community improvement efforts, along with general harmful effects on the surrounding area and contribution to neighborhood blight. In the most recent decision in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), the Court set forth the respective burdens on the City and those challenging the ordinance where a court is considering whether the subject zoning provision — this one prohibiting two different categories of adult businesses in the same building — actually advances the battle against secondary effects that the City asserts. Those three cases are all that the Court has had to say about the topic.
Those decisions teach that an adult zoning ordinance is constitutionally valid only if evidence demonstrates that the ordinance actually reduces undesirable secondary effects without unduly suppressing the regulated speech. In other words, just because the city says it is so doesn't make it so.
Does requiring percentage stores to be a stated distance from sensitive uses and from adult uses advance a city?s battle against whatever secondary effects it is able to draw up?
To begin with, it obviously depends upon the percentage. A city would have little difficulty establishing that a 90 percent store is no different from a 100 percent one. But what is the impact of a video store with the typical 15 percent adult section?
Ordinances vary in terms of how much adult equals "adult." Often, the boundary is written in terms of percentages — floor space, inventory or sales revenue. Some use a number of these factors, or all of them. The percentage of revenue is problematic because one cannot control what customers will choose, although that criteria has been approved.
Many ordinances use terms that are not measurable, such as "a substantial or significant portion of stock and trade," which has not done well from a vagueness standpoint. Courts in California, Oklahoma and, most recently, Tennessee have held that such measurements are too vague.
A California court in Pringle v. City of Covina, 115 Cal.App.3d 151, 171 Cal.Rptr. 251 (2nd Dist. 1981) decided that an ordinance not defining the point at which a theater becomes adult was unconstitutionally vague, and authoritatively construed it to require that "a preponderance" of the material be adult before regulations could kick in. Once this 50 percent rule was applied to bookstores in Strand Property Corp. v. Municipal Court (People), 148 Cal.App.3d 882, 200 Cal.Rptr. 47 (4th Dist. 1984) and Kuhns v. Board of Supervisors, 128 Cal.App.3d 369, 181 Cal.Rptr. 1 (4th Dist. 1982), stores facing adult zoning problems would install useless but small articles as 51 percent of inventory to bring the adult percentage below the "preponderance" rule. The practice became so common that the term "pringle-ized" — after the Pringle case — became part of the adult-business vernacular. Then, when the California Supreme Court disapproved that line of cases in People v. Superior Court (Lucero), 49 Cal.3d 14, 259 Cal.Rptr. 740 (1989), the issue became less clear.
The City of Minneapolis, Minn. took it on the chin when Ferris Alexander sued because he couldn?t figure out what "substantial" or "significant" meant. Alexander v. City of Minneapolis, 713 F.Supp. 1296, 1303 (D. Minn.1989). Ferris was dumb like a fox.
Oklahoma set aside the conviction of a store clerk at the Naughty & Nice Gift and Novelty Shop because the poor kid had no way of knowing how much adult material it took to constitute "a significant portion of stock in trade" under the ordinance. Cline v. City of Oklahoma City, 839 P.2d 657 (Okla. Crim. App. 1992). The case against the clerk at the Eastern Avenue Bookstore met the same fate. Id.
Tennessee did not learn its lesson. In Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, (M.D. Tenn. 1989), the court struck down the "substantial or significant" language in a Nashville ordinance. But Tennessee cities apparently don?t talk to each other. Recently, the Tennessee Supreme Court struck down a Knoxville ordinance because it was too vague in drawing the line between adult and non-adult businesses. Can you guess the language? Yup, "substantial or significant portion of its stock and trade." City Of Knoxville V. Entertainment Resources, LLC., ___ S.W.3d ___, 2005 WL 1523918 (Tenn., June 29, 2005).
And, finally, Crisp County, Georgia recently took it on the chin from the Georgia Supreme Court. "Regular and substantial business purpose" does not cut it, either, the court found, falling to a vagueness challenge. 105 Floyd Road, Inc. v. Crisp County, 613 S.E.2d 632 (Ga. 2005).
The bigger issue, however, is whether these ordinances can regulate so-called "take-home pornography" stores at all. It all started in World Wide Video, Inc. v. City of Tukwila, 117 Wash.2d 382, 816 P.2d 18 (1991), where the court held that there was an insufficient showing that such places caused any secondary effects. Remember, adult zoning ordinances are only good if they reduce secondary effects of speech. Accordingly, under Tukwila, "percentage stores" could go up to 100 percent.
However, when others tried to jump on that bandwagon, two federal circuits disagreed with Tukwila, justifying the result by saying that take-home stores were close enough to the types of businesses that had been demonstrated to cause adverse secondary effects. ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 690 (10th Cir. 1998).
Once the Alameda Books case was decided, allowing for the first time that challengers of adult zoning laws could contest a city?s assumption that an ordinance effectively deals with the identified secondary effects, it seemed that take-home-only stores were back in business. No studies had shown that such businesses caused any bad secondary effects. And, indeed, the very conservative Fifth Circuit Court of Appeals struck down a San Antonio ordinance to the extent that it was applied to Encore Videos? retail store there. Encore Videos, Inc. v. City of San Antonio, 352 F.3d 938 (5th Cir. 2003). Take-home stores were on a roll, especially given the reputation of the Fifth Circuit as being so anti-erotica.
Armed with its Tukwila success and the recently decided Encore Videos case, World Wide Video this time took on the City of Spokane in Eastern Washington. World Wide Video brought an expert who demolished all of the studies that Spokane relied upon, noting that take-home-only businesses were not shown to cause any undesirable secondary effects by any of them. How could World Wide Video lose? The supposedly "liberal" Ninth Circuit (a distinction that it certainly no longer deserves) found a way.
Litter! Someone came to the City Council meeting and testified that he observed customers of a take-home adult business leaving pornographic litter. "That?s anecdotal!" cried World Wide Video. "No problem," the court in effect responded. If the City Council believed the evidence, which apparently it did, that was enough.
This is worse than it sounds. In the first place, the ordinance?s opponent has no ability to impeach or cross-examine the witness at the city council meeting. How can a lying citizen be exposed? Moreover, if — as Renton and other cases have clearly held — cities can borrow from the experiences of other cities in enacting these ordinances, all of the cities in the future can use Spokane?s alleged litterbugs as a basis for their own ordinances. How can that be disproven?
One suggestion has been that video stores sell DVDs in plain packaging, keeping the box at the store. The DVD would be the only "pornographic" item that would leave the store, and who is going to throw away a DVD that he just paid $29.95 to purchase? A little more difficult question is posed by novelties because they usually have racy packaging and, worse, they are not protected by the First Amendment, anyway.
The World Wide Video decision is potentially lethal to percentage stores. Litter is a consequence independent of percentages, so the censors can really get what they want — prohibit the sale of any erotica anywhere but the boondocks. The "plain brown wrapper" approach will probably be the next battleground. That is to say, if the only secondary effect is litter, can the ordinance prevent litter-proof take-home stores?
Also, the problem that a city has with defining a take-home store as adult with only a small percentage of adult materials is that there will not be enough locations. For example, in Executive Arts Studio, Inc. v. City of Grand Rapids, 227 F.Supp.2d 731 (W.D. Mich. 2002), the court noted that, although the Grand Rapids ordinance may have allowed a number of locations sufficient under other adult zoning ordinances, it was insufficient for the ordinance there, in part because it covered "mainstream bookstores having ?a segment or section devoted to the sale or display of? certain specified sexual content." That, the court concluded, was reason why there would be many more businesses competing for the small number of locations than in the case of the typical adult ordinance and therefore more locations were required.
Stay tuned.
(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN's offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
