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 catchline 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.