Adult Entertainment Law Group Update
Spring 2004
Recent Experience Highlights the Need for Updated
Adult Entertainment Ordinances
By Stephen A. Smith
A number of Washington cities and
counties are experiencing the effects
of either no adult entertainment
ordinance, or the problems with an
ordinance that has not been reviewed
recently. The impacts include the influx
of adult businesses without regulation,
or litigation successfully challenging
an invalid ordinance. The price—in
litigation costs and on city planning—may be unpleasant.
“We don’t need an ordinance because we have no adult businesses.”
One Washington city recently experienced the unpleasant
task of attempting to regulate adult businesses after they
came to town. The full variety of regulations available to
cities, including zoning, licensing and standards of conduct,
were not in place when this city dealt with its new business.
The business located
close to residences,
Ordinances can regulate the
had unlicensed
places within a city that adult
employees, unlimited
hours of operation, and
businesses can locate.
allowed on-premises
entertainment that
was rife with public sexual conduct. The city is now in the
process of attempting to regulate that business after-the-fact.
One obvious benefit to pre-existing regulation is avoiding
the hardships experienced by this Washington city. A second
reason for regulation before adult businesses are established
is a practical one: they are far less likely to open and operate
in a city that bars the practices that may be most profitable.
Likewise, they are far more likely to challenge in court
a regulation that has the impact of removing a lucrative
aspect of the business. The City of Bellevue enacted a valid
ordinance in 1995 that prevented dancers from performing
less than a certain distance from patrons. An adult nightclub
that planned to feature that close contact (“table dances”)
as a primary income
stream cancelled its plans
to open a new club.
Inside This Issue:
Case Review: Alameda Books v.
City of Los Angeles .............................. 2
“We already have an adult
Preparation of an Adequate Legislative
Record is Necessary for the Regulation
entertainment ordinance.”
of Adult Retail Establishments in the
Adult entertainment
Ninth Circuit ......................................... 3
ordinances come in a
The Costs of Adult Business Regulation...
variety of types. First,
and How to Recover Them...................... 5
ordinances can regulate
the places within a city
that adult businesses
can locate. These ordinances must be carefully drafted
so that the city preserves the right of a business to locate
somewhere within the city, and that the number of available
sites is not too small. Second, ordinances may regulate
the types of conduct that such businesses may permit
within the business. A ban on sexual conduct within the
business is ineffective if there are inadequate measures to
ensure that such conduct does not occur. Law enforcement
cannot police the business every hour, so restrictions on
the physical premises to aid law enforcement are common.
Finally, ordinances may license the businesses, managers
and entertainers, verifying that minors are not involved,
and identifying persons who have engaged in prior criminal
behavior.
An updated ordinance, or at least occasional legal
review, is critical to enforceability. A zoning ordinance
frequently separates adult businesses from sensitive uses,
like schools, parks and residential zones. A zoning ordinance
drafted in 1990, for example, may be invalid today if the
city has constructed new parks or schools, or expanded its
residential zones. The “setback” may eliminate the number
of sites that adult businesses must be afforded to locate.
Changes in the law also suggest frequent review. A number
of types of regulation have been suggested by recent judicial
decisions:
Continued on Page 4
Adult Entertainment Law Group Update
Page 2
Alameda Books v. City of Los Angeles
Did the Supreme Court Change the Rules for Regulating Adult Businesses?
By Todd L. Nunn
The Ninth Circuit
Court’s decision in
Alameda Books v. City
of Los Angeles1 created
uncertainty in the area
of adult entertainment
regulation by striking
down a regulation as
not having sufficiently
specific support in the
study relied on by the City. The United
States Supreme Court reversed the Ninth
Circuit's decision and remanded the case
to the district court (Alameda Books v.
City of Los Angeles2). Alameda Books,
relying on the well established precedent
of Renton v. Playtime Theatres, Inc.3 and
City of Erie v. Pap’s A.M.4, reaffirmed
the deference that courts must give to
municipalities:
Municipalities will, in general, have
greater experience with and
understanding of the secondary
effects that follow certain protected
speech than will the courts. See
Pap’s A.M.5 (plurality opinion). For
this reason our cases require only
that municipalities rely upon
evidence that is “reasonably believed
to be relevant” to the secondary
effects that they seek to address.6
Justice Kennedy’s concurring opinion
agreed with this principle7: (“We have
consistently held that a city must have
latitude to experiment, at least at the
outset, and that very little evidence is
required.”). The plurality also reaffirmed
the principle that cities do not have to
support their regulations with empirical
evidence. Alameda Books8.
So, did the Supreme Court change
the rules regarding the necessary
support for ordinances regulating
adult entertainment businesses? At
first blush the answer appears to be a
resounding NO! But, as usual, the adult
entertainment industry has raised new
arguments that Alameda Books wiped
out years of precedent and created a
new test. Adult business attorneys have
fixated on language in the plurality
opinion that municipalities cannot “get
away with shoddy data or reasoning,” and
that “[t]he municipality’s evidence must
fairly support the municipality’s rationale
for its ordinance.” Alameda Books9.
Adult business attorneys have also fixated
on a part of Justice Kennedy’s concurring
opinion that states that a proposed
ordinance must leave “the quantity of
speech...substantially undiminished,
and that total secondary effects will be
significantly reduced.10”
These arguments were raised in
So, did the Supreme Court change
the rules regarding the necessary
support for ordinances regulating
adult entertainment businesses?
At first blush, the answer appears
to be a resounding NO!
a case handled by the authors of this
update. In World Wide Video v. City of
Spokane11, the court specifically rejected
the argument that Alameda Books
changed the law:
Plaintiff relies on the Supreme
Court’s recent decision in [Alameda
Books], and suggests that Alameda
Books represents a new and different
approach to the constitutional
analysis of adult entertainment
zoning ordinances. While Alameda
Books may clarify existing precedent,
this court is not persuaded that
it fundamentally alters the
legal landscape regarding adult
entertainment zoning ordinances.12
Recently, the Ninth Circuit, in a
challenge to an ordinance regulating
the time of operation of adult
businesses, agreed with World Wide
Video, specifically holding that neither
the plurality’s nor Justice Kennedy’s
concurring opinion altered the Renton
analysis. Center for Fair Public Policy
v. Maricopa County13 (finding “five
members of the Supreme Court agreed
that ‘the central holding of Renton
is sound’”). In Center for Fair Public
Policy, the Ninth Circuit specifically
discussed the effect of Justice Kennedy’s
concurrence. At the outset it noted that
Justice Kennedy agreed with the plurality
that Renton remained sound.14 It stated
that Kennedy wrote separately because
he felt that the plurality skipped the first
part of the question, “What proposition
does the city need to advance in order to
sustain a secondary-effects ordinance?,”
but he agreed with the plurality on the
second part of the question, “How much
evidence is required?”15 Indeed, the
Ninth Circuit points out that Justice
Kennedy “agreed fully with the plurality
that ‘very little evidence is required’”
and that the “‘reasonable reliance’
standard is necessary...because ‘[a]s a
general matter, courts should not be in
the business of second-guessing factbound empirical assessments of city
planners.’”16
While the court does not foreclose
any argument that Justice Kennedy’s
concurrence may have changed some
aspect of analysis regarding secondary
effects regulation, doing that only for
hours of operation regulations, the
court strongly suggests it, noting that
“the argument that [the concurrence]
presents a new and different approach to
the constitutional analysis of secondary
effects law is inconsistent with the weight
of authority in the wake of that decision:”
Courts have routinely upheld properly
crafted secondary effects ordinances
supported by a proper record in
the wake of Alameda Books, and
have explicitly stated that Justice
Kennedy’s separate decision did
little, if indeed anything, to the
traditional Renton framework.
See Z.J. Gifts D-4, LLC v. City of
Littleton17, (seeing “nothing in...
Alameda Books that requires
reconsideration” of the traditional
Renton framework).18
Another Ninth Circuit panel, in a
case handled by the authors of this
update, applied the Renton test to
determine constitutionality of an adult
ordinance. It found that the City met the
Page 3
“narrowly tailored” test because the city
reviewed “the studies, experiences, and
police records of many cities” that were
“‘reasonably believed to be relevant to
the problem that the city addresse[d].’”19
Additionally, recent cases from other
circuits validate the Ninth Circuit’s
approach. For example, in Ben’s Bar,
Inc. v. Village of Somerset20, the Seventh
Circuit found that Alameda Books did not
change the law regarding adult business
secondary effects. (“Justice Kennedy’s
position is not that a municipality
must prove the efficacy of its rationale
for reducing secondary effects prior
to implementation…but that a municipality’s rationale must be premised on
the theory that it ‘may reduce the cost of
secondary effects without substantially
reducing speech.’”)21
Similarly, the Eighth Circuit found
that the plurality and Justice Kennedy
adhered to the deferential standard
toward legislative enactments enunciated
in Renton and Pap’s. SOB, Inc. v. County
of Benton22, (“The four-Justice plurality
in Alameda Books was equally deferential
in reviewing a zoning ordinance...[and
although] Justice Kennedy’s concurring
opinion in Alameda Books was somewhat
less deferential than the plurality to local
legislative judgments...there is nothing
to suggest that he has retreated from his
votes in Barnes and Pap’s.”).
In conclusion, the Ninth Circuit and
the majority of other Circuits have held
that although Alameda clarifies certain
aspects of the test for constitutionality of
adult entertainment regulations, it does
not change the central holdings or the
deferential standard of Renton.
1 222 F.3d 719, 722 (9th Cir. 2000)
2 535 U.S. 425, 122 S.Ct. 1728 (2002)
3 475 U.S. 41 (1986)
4 529 U.S. 277 (2000)
5 529 U.S., at 297-298
6 122 S.Ct. at 1737-38
7 122 S.Ct. at 1742-43
8 122 S.Ct. at 1736
9 122 S.Ct. at 1736 (citing Pap’s, 529 at U.S. 298)
10 122 S.Ct. at 451
11 227 F.Supp.2d 1143, 1149 (E.D.Wash. 2002)
12 Id. at 1149
13 336 F.3d 1153 (9th Cir. 2003)
14 Id. at 1161
15 Id. at 1161-62
16 Id. at 1162
17 311 F.3d 1220, 1239 n. 15 (10th Cir. 2002)
18 Id. at 1163
19 Deja Vu v. City of Federal Way, 46 Fed.Appx. 409,
411, 2002 WL 1929375 (9th Cir. 2002) (quoting
Renton, 475 U.S. at 51-52).
20 316 F.3d 702 (7th Cir. 2003)
21 Id. at 1742 (emphasis added)
22 317 F.3d 856, 863-4 (8th Cir. 2003)
toddn@prestongates.com
Litigation Practice Group
Preparation of an Adequate Legislative Record is Necessary for the
Regulation of Adult Retail Establishments in the Ninth Circuit
By Todd L. Nunn
Regulation of businesses that sell adult
materials for consumption exclusively
off-site, or “adult retail businesses,”
poses a challenge for cities throughout
the Northwest. Courts have taken
different approaches regarding the
regulation of these businesses. The
central issue of contention is how
specific a city’s evidence of secondary
effects must be. Some courts have
tended toward strict requirements of
specific support, particularly when
the definition of adult retail businesses
is broad enough to include so-called
“mainstream” bookstores. C.f. World
Wide Video v. Tukwila, 117 Wn.2d
382, 816 P.2d 18 (1991) (invalidating
ordinance regulating adult retail business
defined to include businesses with as little
as ten percent stock in trade consisting
of sexually oriented merchandise when
only studies considered related to adult
theaters).
Recent rulings are more in line
with a requirement that the legislative
support simply be “reasonably believed”
to be relevant to the secondary effects
created by this type of business. See ILQ
Investments, Inc. v. City of Rochester,
The Supreme Court has authorized
studies from other cities, findings
in court cases, and testimony by
citizens a proper support for adult
entertainment regulation.
25 F.3d 1413, 1418 (8th Cir.), cert.
den. 513 U.S. 1017 (1994) (evidence
it specifically described was sufficient
to support the regulation of “a bookstore
offering non-adult as well as adult
materials and having no facilities for
on-premises consumption”); Z.J. Gifts
v. City of Aurora, 136 F.3d 683, 688
(10th Cir.), cert. den. 525 U.S. 868
(1998) (the City’s “interest in regulating
sexually oriented businesses thus
remains unaffected by the district court’s
distinction between off-site and on-site
viewing of sexually explicit materials”).
See also, Stringfellow’s of New York, Ltd.
V. City of New York, 91 N.Y.2d 382, 671
N.Y.S.2d 406, 694 N.E.2d 407 (1998).
The prudent approach to this variability
in the case law is to be holistic in the
evidence included in the legislative
record. The Supreme Court, in Renton
v. Playtime Theatres, Inc., 475 U.S. 41
(1986), City of Erie v. Pap’s A.M., 529
U.S. 277 (2000) and Alameda Books
v. City of Los Angeles, 535 U.S. 425
(2002), has authorized studies and other
materials from other cities, findings in
court cases and testimony by citizens as
proper support for adult entertainment
regulation. There is specific evidence
supporting the regulation of adult retail
establishments available in all of these
forms. Two recent cases highlight the
difference in court approaches, and
the importance of a strong and varied
legislative record.
In World Wide Video v. City of
Spokane, 227 F.Supp.2d 1143
(E.D.Wash. 2002), handled by the authors
of this update, the district court rejected
a challenge to an ordinance regulating the
location of adult retail establishments.
The adult businesses challenged the
ordinance on the grounds that the studies
relied on by the City did not specifically
discuss adult retail only establishments,
relying on World Wide Video v. Tukwila. The district court
books (as is the case with the Seattle study) or include
upheld the ordinance, finding it served a substantial
them but do not differentiate the data collected from such
government interest and was supported by sufficient evidence.
businesses from evidence collected from enterprises that
The City relied on numerous studies, court cases, public
provide on-site adult entertainment-as may have been the
testimony, and numerous other materials from other cities
case with the Austin and Garden Grove studies. Off-site
showing secondary effects caused by adult retail businesses.
businesses differ from on-site ones, because it is only
Relying on ILQ and Z.J. Gifts, the district court found that
reasonable to assume that the former are less likely to
“[t]o the extent the studies relied upon by the City of Spokane
create harmful secondary effects.
deal with adult businesses, not solely retail in nature, this
Id. The court ruled that part of the ordinance
court concludes the City could reasonably believe those
unconstitutional because of both the fact that the ordinance
studies are relevant to the City’s regulation of adult retail-only
applied to businesses with as little at 20% of inventory
businesses.” Id. at 1154. The court further found that cities
and the lack of evidence. Id. at 295. (“Given the expansive
can rely on “common experience” and “anecdotal evidence”
reach of the ordinance in the instant case, we must require
to support a regulation. The court held that even absent
at least some substantial evidence of the secondary effects
the studies relied on by the City, the legislative record was
of establishments that sell adult products solely for off-site
consumption.”)
sufficient because, “Spokane’s legislative record...is filled with
What is the lesson for a city looking at Encore Video and
complaints from neighbors of adult establishments concerning
World Wide Video, which differ in their rulings? There are a
pornographic litter and used condoms in their neighborhoods
number of differences, including the fact
and sexual acts occurring on or near
that the Fifth Circuit applies a much too
the adult establishments.” Id. at
strict standard of evidence under Supreme
1157-1158.
These cases illustrate that a
Court precedent. Primarily, the difference
One appellate court to disagree
is in the quantum of evidence included in
with the ILQ and Z.J. Gifts line
city should carefully construct a
of authority is Encore Videos,
the legislative record. There is no indication
legislative record...as a hedge
in Encore Video that there was any evidence
Inc. v. City of San Antonio, 330
other than the three studies discussed
F.3d 288 (5th Cir. 2003). In
against this type of ruling.
Encore, the Fifth Circuit held
above, while the City of Spokane had an
unconstitutional a locational zoning
extensive record including more studies,
ordinance as applied to adult retail
court cases, testimony and other materials.
These cases illustrate that a city should carefully construct
establishments. The court noted that the establishments “do
a legislative record that includes as much specific support as
not permit on site viewing” of sexually explicit materials, and
possible, in as many forms as possible, as a hedge against
that “the ordinance applies to any bookstore, novelty store,
this type of ruling. Cities should include in their legislative
or video store that devotes over 20% of its inventory or floor
space to sexually explicit materials.” Id. at 294-295. The City records, not only the best studies they can find, but also court
justified the ordinance on the grounds that it would “reduce
cases ruling favorably on facts similar to the city’s facts, and
adverse secondary effects (such as increased crime and the
testimony providing evidence of the secondary effects actually
reduction of property values).” Id. The court found that the
suffered by neighbors of the adult retail businesses. This is
City was entitled to rely on the experiences of other cities to
particularly true in light of Center for Fair Public Policy v.
support the ordinance, but found that the “studies do not
Maricopa County, 336 F.3d 1153, 1168 (9th Cir. 2003), in
support the City’s extensive regulation of sexually oriented
which the court held that such testimonial evidence is proper
businesses.” Id. It found:
to support adult entertainment ordinances. If a city puts
The studies [from the cities of Seattle (1989), Austin
appropriate effort into the legislative record supporting an
(1986) and Garden Grove (1991)] either entirely exclude
adult entertainment ordinance, it will be rewarded when that
establishments that provide only take-home videos and
ordinance is challenged.
Recent Experience Highlights the Need for Updated Adult Entertainment Ordinances
(Cont. from Page 1)
• Regulating the hours of operation
of an adult nightclub or video
arcade;
• Preventing video arcades from
attaching doors to
viewing booths;
• Limiting one type of adult
business per location to avoid an
erotic mini-mall;
• Requiring businesses to move
from a downtown location as part
of an urban renewal project.
Contrary to the suggestion of the
adult business industry, there are no
“vested” rights in carrying on an existing
adult business if it has an adverse
impact on a city or its residents.
“We can’t afford a lawsuit.”
The essence of careful adult business
regulation is the prevention of adverse
impacts-both on the community and
in the courts. The best method of
preventing litigation is the careful
drafting of adult ordinances in advance
of any business opening. Timely review
of ordinances allows for regulation,
and the correction of provisions that
are outdated either by the change of
the city or a change in the law. In any
event, the absence of valid regulation is
an invitation to a lawsuit. Cities cannot
afford to be unprepared.
steves@prestongates.com
Litigation Practice Group
Adult Entertainment Law Group Update
Page 5
The Costs of Adult Business Regulation...
...and How to Recover Them
By Stephen A. Smith
In the current economic climate,
municipalities have been reluctant to
undertake projects which drain precious
resources. Although citizen groups are
often vocal about the need to properly
regulate adult businesses, cities are wary
about the costs and liabilities. There are
several justifications for spending a little
now to save a lot down the road.
The cost of regulating adult
businesses is often no more than the
expense in drafting a comprehensive
adult entertainment ordinance, and
assembling a legislative record to
support it. Careful and experienced
legal counsel will recommend a variety
of means of regulation that have been
court-tested. This both minimizes the
potential for post-enactment litigation,
and maximizes the likelihood that any
lawsuit will be unsuccessful. Preparation
of the ordinance is often not expensive,
About
Preston Gates & Ellis LLP
Preston Gates, a full-service law
firm with over 400 attorneys,
was established in Seattle in
1883. Preston Gates pioneered
the practice of municipal
law in the states of Alaska,
Oregon and Washington. Our
municipal clients occasionally
need experienced, responsive
attorneys who can quickly and
cost-effectively provide services
related to adult entertainment
ordinances, including drafting
and defending the ordinances.
particularly if the city is willing to adopt
regulations already approved by the
courts.
Litigation arising from adult
entertainment ordinances tends to come
from businesses whose income stream
is disrupted by a legislative change.
Adoption of regulations in a city that has
no current adult business is unlikely to
bring any litigation challenge. Although
the enactment of restrictions that have
been approved by the courts does not
prevent lawsuits from being filed, this
strategy both reduces the likelihood
of litigation and substantially reduces
the chances of success by the adult
business.
Finally, litigation can be met with a
variety of defenses to shift the burden
back to the adult business. Washington
courts have become wary of adult
businesses who have litigated and
relitigated well-accepted regulations.
Our experience in this area
includes drafting ordinance language,
assistance in preparing legislative
records to support regulations, and
defending litigation which may
challenge the ordinance on federal
and/or state constitutional grounds.
Defense of adult entertainment
ordinances for municipalities has
extended to performances by both
males and females, location of clubs
and book stores, litigation in state
and federal courts, and defense of the
ordinances against a wide variety of
challenges. Since starting this practice
area in 1995, firm attorneys have
celebrated 11 victories for municipal
clients and no defeats.
Stephen A. Smith has handled
more than twenty adult entertainment
litigation matters in the last ten years.
He received his law degree in 1975
from the Columbia University School of
Law, and he earned his undergraduate
degree in 1972 from the University of
Washington. Steve regularly engages in
In Déjá vu v. City of Federal Way, 96
Wn.App. 255 (1999) the court awarded
legal fees to the City for having to
relitigate a well-established regulation.
Adult businesses often attempt to obtain
injunctions to prevent the enforcement
of regulations, but this, too, can have
a heavy price tag. In Ino Ino, Inc.
v. City of Bellevue, 135 Wn.2d 103
(1997), the court found that the City’s
regulations were valid and removed a
temporary injunction. State law required
that the business owner obtaining the
injunction must reimburse the City
for all of its legal costs in getting the
injunction removed. Finally, asserting
legal claims without a valid legal basis
can prove costly to adult businesses.
Several Washington courts have awarded
legal fees to Washington cities when the
regulated businesses asserted frivolous
legal claims.
the litigation of first amendment cases
and is listed in the 2003-04 issue of
Best Lawyers in America as a specialist
in First Amendment law. He also
represents municipalities in a variety of
other litigation matters.
Todd L. Nunn’s constitutional
law experience includes defense of
municipalities, such as the City of
Spokane, Federal Way, and Blaine,
against First Amendment challenges
to adult entertainment regulations,
sign regulations and other zoning
ordinances. He has also litigated
constitutional challenges to Washington
state statutes. He received his J.D.
from the University of Washington in
1993 and his B.A. from the University
of Washington in 1990.
For more information about our
Litigation and Municipal Practice
Groups and our attorneys, please visit
www.prestongates.com.
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
925 Fourth Avenue
Suite 2900
Seattle, WA 98104
Tel: (206) 623-7580
Fax: (206) 623-7022
www.prestongates.com
“Adult business litigation is a very specialized
area of the law. To successfully defend an adult
retail business ordinance, you need a law firm with
experience in this specialized area. Stephen Smith
and Todd Nunn of Preston Gates & Ellis provide
the necessary experience and expertise to ensure
successful regulation of adult businesses.”
“Adult entertainment businesses are frustrating
litigation opponents. Preston Gates has the
experience and credibility with the courts to not only
defeat these tactics, but obtain awards of attorney
fees as sanctions against the adult entertainment
plaintiffs.”
- Robert Sterbank, Olympia City Attorney
- Timothy Szambelan, City of Spokane
HOW TO REACH US
If you would like more information about the issues discussed in this
newsletter, or have a suggestion for a future article, please contact Steve
Smith at steves@prestongates.com, and Todd Nunn at toddn@prestongates.
com, or call us at (206) 623-7580.
This issue of the UPDATE may also be found online at www.prestongates.com.
DISCLAIMER
This newsletter provides general information about litigation laws. It is not a legal opinion or legal advice. Readers should
confer with appropriate legal counsel on the application of the law to their own situations. Entire contents copyright © 2004 by
Preston Gates & Ellis LLP. Reproduction of this newsletter in whole or in part without written permission is prohibited.
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