March 5, 2002
Re: Proposed Adult Use Ordinance
Dear City Recorder:
You asked that I review the proposed “Adult-Oriented Establishment Ordinance.” I want to
emphasize that my comments here are by no means an exhaustive or complete look at the
issues raised by this proposal. To do an exhaustive review would require much time and paper
and perhaps even clairvoyance since one cannot know for sure what issues will be raised. Adult
businesses are apparently very lucrative, and issues involving them have been litigated
extensively, often even to the U. S. Supreme Court. Therefore, the possibility that the City will be
challenged based upon provisions of this ordinance if it is passed is not remote.
The U. S. Supreme Court has held that the First Amendment to the U. S. Constitution provides
protection to sexually explicit but non-obscene live performances and presentations, printed
matter, and films. Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991); Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976). These businesses, nevertheless, are subject to regulation for
health, safety, licensing, and zoning reasons. Young, 427 U.S. at 62, 78-79. Any regulation,
however, must be content-neutral. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
Ordinances that are aimed at the secondary effects of these establishments-- e.g. increases in
crime, prostitution, the spread of disease-- are considered content neutral. Renton v. Playtime
Theaters, Inc., 475 U.S. 41 (1986). In a case that has no precedential value here but that is
instructive, the Eleventh Circuit held that in determining content neutrality, courts should “glean
the government interest at stake from the ordinance itself rather than implying one where none is
evident in the ordinance.” International Eateries of America, Inc. v. Broward County, Fla., 941
F2d 1157, 1162 n. 3 (11th Cir. 1991).
Since dealing with the secondary effects of these establishments probably gives the City a
reasonable chance of having some or all of its regulations upheld, it should probably be stated
that the purpose of the ordinance is to deal with these effects. Why make the court guess that
the City is concerned with these effects? Therefore, I suggest that the City place either some
“Whereas” clauses at the beginning of the ordinance or a section stating the purpose of the
ordinance. The statement of purpose should indicate that the city’s predominant concern is
control of crime, control of the spread of disease, prevention of urban blight, and the
preservation of the City’s neighborhoods. The statement of purpose should not, of course, state
that the City is trying to prevent activity that is morally bad or anything to that effect referring to
the content of the activity or expression.
The proposed ordinance provides for a license fee of five hundred dollars ($500.00) and a
renewal fee of one thousand dollars ($1,000.00). Why the renewal fee would be more than the
original license fee is a mystery. A license fee should be roughly commensurate with the
proportionate cost of the service provided by the City, in this case the regulation of adult
businesses. Even if a city’s fee applies to the exercise of a constitutional right and is not a tax
imposed on the exercise of that right but only a recoupment of enforcement expenses, the fee is
constitutional. Cox v. New Hampshire, 312 U.S. 569 (1941). Here, however, the City will likely
have to explain why a renewal is more costly to administer than the original application, which
one would normally think of as requiring a more extensive and therefore more expensive
examination. The largest fee I am aware of that has been upheld is five hundred dollars
($500.00), which appears to be somewhat of a standard. A renewal fee that is twice as large as
the original fee militates against the notion that the City is merely recouping expenses.
Therefore, the City might want to consider modifying these fees.
Section XII of the ordinance has a catch line indicating that it has restrictions on hours of
operation, but there are no restrictions in the section itself. Ordinance provisions establishing
reasonable restrictions on operating hours have been routinely upheld. Whether or not the
ordinance should contain these restrictions is, of course, completely up to the Board of Mayor
and Aldermen. For a small municipality to allow this activity on a twenty-four hour basis would
appear to place an almost impossible burden on the officer or officers charged with enforcing the
ordinance. Lax enforcement of the ordinance would run counter to the City’s purpose of
protecting the public welfare and safety. Thus, the Board might want to consider adding
reasonable restrictions on hours of operation.
Section XV contains restrictions on the location of these establishments. Under the provisions of
this section, an adult business may not be within 2,000 feet of a residence, apartment, or place
of public gathering or within 350 feet of the centerline of a public road. These distance
restrictions do not apply to existing establishments, of which, I understand, there is only one.
Distance restrictions are valid as long as they “refrain from effectively denying ... a reasonable
opportunity to open and operate an adult [business] within the city.” Renton v. Playtime
Theaters, Inc., 475 U.S. 41 at 54 (1986). I am not very familiar with your city but do know that it is
small in both area and population. If the effect of these distance requirements is to prohibit other
adult businesses and in effect grant a monopoly to the existing business, there is a chance they
would be found invalid if challenged.
Just to give you an idea about the litigation adult uses have engendered against municipalities,
here is a partial listing of claims that have been brought:
•
Violation of First Amendment rights, for which a municipality may be liable for damages
and attorney fees under 42 U.S.C. §§ 1983 and 1988.
•
Regulations not content-neutral.
•
Regulations not narrowly tailored to serve a significant government interest.
•
Regulations do not leave adequate alternative means of communication.
•
Evidence that predominant purpose of ordinance is to address secondary effects
inadequate.
•
Regulations constitute an unconstitutional prior restraint on protected expression.
•
Prompt judicial review of license denials not provided for.
•
Ordinance provisions are unconstitutionally overbroad.
•
Ordinance provisions are unconstitutionally vague.
•
Hours of operation too restrictive.
•
Bans on total nudity, touching, proximity to customers invalid.
•
Regulations deny ability to operate business.
As you can see, almost any claim that can be thought of has been brought somewhere against
some local government. This is a complex area for any city to get involved in. I understand that
the county has adopted the state law on adult businesses. The City should make sure it is able
to enforce these regulations before taking this function over from the county. The City should
also be prepared to deal with any lawsuits brought by the existing or potential businesses that
might not agree with certain ordinance restrictions.
I hope the information in this letter is helpful. If I may be of further assistance, please call.
Sincerely,
Dennis Huffer
Legal Consultant