Adult Business Regulation

We are pleased to announce the publication of a new book, Local Government, Land Use, and the First Amendment: Protecting Free Speech and Expression.  The book is published by ABA Publishing, and was edited by the editor of Rocky Mountain Sign Law, Brian Connolly.  Twelve authors contributed to the book, which contains chapters on everything from signs, religious land uses, adult businesses, the public forum doctrine, and government speech.

More about the new book is available from ABA:

This book is an re-mastered, retooled version of the ABA publication “Protecting Free Speech and Expression: The First Amendment and Land Use Law” which was published by the ABA.

The book contains some theoretical discussion of First Amendment law as it pertains to land use issues (e.g. sign and billboard regulation, regulation of artwork and aesthetics, regulation of religious land uses, regulation of adult businesses, etc.), but also provides information which will be relevant to practitioners, and will include some regulatory strategies and case studies. In order to strategically illustrate their points, the authors included cases as source material.

The book is available for purchase from ABA and will also be available on Amazon.

This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at the conference, please join us for the following panel presentations:

  • On Monday, May 8 at 4:15 p.m. ET, Brian Connolly will join Evan Seeman of Robinson & Cole and Noel Sterrett of Mauck & Baker in a presentation entitled “Planning and Zoning for First Amendment-Protected Land Uses,” which focus on sign regulation, regulation of religious land uses, and adult business regulation, among other interesting topics.  The speakers recently co-wrote an article that appeared in the newsletter of the American Planning Association’s Planning & Law Division on these topics, which can be found here.
  • On Tuesday, May 9 at 7:45 a.m. ET, Brian Connolly and Alan Weinstein, professor of planning and law at Cleveland State University, will present on “Planners and the Public Realm: Legal Rights and Planning Issues,” which will dive more deeply into the public forum doctrine and the opportunities and constitutional limitations associated with planning for public spaces.

We look forward to seeing many of our friends and readers in New York!

Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit. Continue Reading Ninth Circuit: Tattoo Parlor Owner Has Standing to Bring First Amendment Claims

Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises.  In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.

Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts.  The code allows for an “art use”, defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction,” in the industrial district, and by special permit in the retail business and highway business districts.  The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts.  Adult entertainment uses and theater uses are not allowed in the industrial district. Continue Reading Massachusetts Court Strikes Down Local Adult Business Regulations

The Taboo adult novelty store in Columbia, South Carolina. Source: thestate.com.

In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine.  That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.

In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store.  That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses.  The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down.  Taboo was located in one of the restricted areas, and continued to operate for the amortization period.  At the end of the amortization period, Taboo sued the city under the First Amendment. Continue Reading Secondary Effects Doctrine Lives On in Fourth Circuit Decision

Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices.  Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for challenging regulation of adult businesses.

Appellants in the case claimed that the Sandy Springs ordinance violated their substantive due process right to privacy.  Appellants included an adult bookstore that sells sexually explicit materials and items, including sexual devices, and a woman suffering from multiple sclerosis who uses sexual devices with her husband to facilitate intimacy.  Although expressing sympathy with appellants’ claims, the court held that it could not break from a 2004 11th Circuit decision that held that privacy-based rights, including the right to buy, sell and use sexual devices, were not fundamental rights under the Constitution, and affirmed the district court’s dismissal of the case.

Appellants encouraged the court to reconsider its analysis of privacy-based rights based on the Supreme Court’s recent decisions in United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12 (2013) and Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. ___ (2015).  Appellants contended that these decisions clarified the existence of a fundamental right to engage in acts of private, consensual sexual intimacy.  However, even though the court characterized its 2004 decision as “wrong,” the court found it could not overrule its prior holding absent the Supreme Court’s express recognition of privacy as a fundamental right.

Although circuit precedent prevented the 11th Circuit from recognizing adult businesses as having protection under the due process clause, due process protection of privacy exists in other circuits and may not be far off in the 11th Circuit (the court actually encouraged the appellants to have their decision reviewed en banc).  If privacy rights are afforded fundamental rights status under the Due Process Clause, land use and zoning restrictions related to adult businesses may be challenged based on more than First Amendment claims.  Whereas local governments may defeat First Amendment challenges using the “secondary effects doctrine,” which permits some burden on speech when the regulation targets the negative effects of speech and not the speech itself, claims that land use and zoning restrictions violate the Due Process Clause will require a heightened standard of review that could prove difficult for some local governments to withstand.

Flanigan’s Enterprises, Inc. v. City of Sandy Springs, No. 14-15499, 2016 WL 4088731 (11th Cir., Aug. 2, 2016).

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Two weeks ago, a federal court in California dismissed a plaintiff’s claim that casino gaming was a First Amendment-protected activity.

Wared Alfarah, the plaintiff in this case, ran a retail business selling e-cigarette products.  To encourage customers to linger around his store, Mr. Alfarah offered pay-to-play games where the player tried to stop a computer cursor on a specific bar in a series of rotating bars.  If done correctly, the player won a random amount of prize money.  Although the location of the bars was randomized, the player’s “skill” allegedly determined his success. Continue Reading Federal Court: Gaming is Not Protected Speech

Pictured above is Silk, a club owned by one of the plaintiffs in the case. Source: onmilwaukee.com

Before 2012, the City of Milwaukee, Wisconsin required strip clubs to obtain one of three business licenses: if the club included both alcohol and nudity, the club would require both a liquor license and a “tavern-amusement license”; a dry strip club required either a “theater license” or a “public-entertainment club license.” Continue Reading $435,000 Damage Award to Milwaukee Strip Club Upheld