Municipal Technical Advisory Service (MTAS)

Three state laws regulate adult-oriented businesses:

• T.C.A. §§ 7-51-1101, et seq. (Adult-Oriented Establishment Registration Act of 1998). Counties are authorized (but not required) to adopt by a two-thirds vote the Adult-Oriented Establishment Registration Act of 1998. That act expressly preserves the right of municipalities to adopt and enforce "other lawful and reasonable restrictions, regulations, licensing, zoning, and other criminal, civil, or administrative provisions concerning the location, configuration, code compliance, or other business operations or requirements of adult-oriented establishments." T.C.A. § 7-51-1121. The act defines and covers adult bookstores, adult mini-motion and motion picture theaters, adult cabarets, escort agencies, sexual-encounter centers, massage parlors, rap parlors, saunas, and similar businesses. The act prohibits adult businesses within 1,000 feet of any child-care facility, school, public park, residence, family recreation center, or place of worship, but it does not prevent local ordinances setting distance requirements. In any county that has adopted the act, such businesses must obtain a license from the county. The act prescribes the rules and regulations that adult-oriented businesses must follow, and the adult-oriented establishment board (created by the county) is empowered to adopt additional rules and to suspend and revoke the licenses of adult-oriented businesses. In addition, first offenders may be fined up to $500. A subsequent offense is a Class A misdemeanor. This statute was upheld in the case of American Show Bar Series Inc. v. Sullivan County, 30 S.W. 3d 324 (Tenn. App. 2000).
• Municipalities that disqualify persons with criminal records from operating or performing in these establishments are required to conduct a criminal records check on applicants through the TBI and FBI. The city must require two sets of fingerprints, which must be sent to the TBI. Costs must be paid by the city but may be added to the application fee. T.C.A. § 7-51-1122.
• T.C.A. § 27-9-111 makes mandatory the judicial review of decisions of boards and commissions that revoke, suspend, or deny permits or licenses required for engaging in adult businesses. The court must hear and decide the matter within 40 days of the date the court granted certiorari.
• T.C.A. § 57-4-204 prohibits certain sexual and pornographic conduct in establishments that sell intoxicating liquor. Generally, the Alcoholic Beverage Commission is the agency designated to enforce the statute. However, the statute expressly provides that "Each county, city, or metropolitan government is empowered upon approval by a two-thirds vote of its legislative body to authorize its law enforcement officers to conduct investigations into alleged violations of subsections (a)-(d) [which contain the prohibited conduct], and such law enforcement officers shall report such violations to the commission for appropriate action by such commission." T.C.A. § 57-4-204(e).
• T.C.A. § 39-13-517. This statute prohibits public indecency, the definition of which includes various kinds of sexual activities. Its definition of "public place" includes, but is not limited to, streets, sidewalks, parks, beaches, and business and commercial establishments of various kinds. It preserves the right of local governments to regulate "any activity where alcoholic beverages, including malt beverages, are sold for consumption." T.C.A. § 39-13-517(g). First and second offenses are Class B misdemeanors carrying a fine of $500. A third or subsequent offense is a Class A misdemeanor with a fine of $1,500 and a jail term of up to 11 months, 29 days, or both.

Many municipalities also have ordinances regulating adult-oriented businesses. At both the state and local levels, the most successful approach to the regulation of such businesses generally has been based upon the regulation of their "secondary effects." (See U.S. Supreme Court cases Renton v. Playtime Theaters Inc., 475 U.S. 41 (1986); Barnes v. Playtime Theaters Inc., 501 U.S. 560 (1991); and City of Erie v. Pap’s A.M., tbda "Kandyland," 130 S.Ct. 1382 (2000)). Competent legal advice should be sought and the federal and state cases interpreting the above and similar statutes in other jurisdictions should be read before a municipality adopts or enforces either a state law or municipal ordinance regulating adult-oriented businesses.