Entertainment Businesses

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

The Fremont Street Experience in Las Vegas. Source: Vegas Experience.

Fremont Street in Las Vegas is one of the city’s major tourist attractions.  It is operated and managed by a private concessionaire, Fremont Street Experience, LLC.  The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license.  In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.

Continue Reading Court Denies Preliminary Injunction in Las Vegas Mall Case

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

One of the big questions coming out of the Supreme Court’s decision in Reed v. Town of Gilbert was whether Reed’s standard for content neutrality analysis would change past Supreme Court jurisprudence regarding regulations of adult businesses.  Under the precedents set in Young v. American Mini-Theatres, Inc. and City of Renton v. Playtime Theatres, Inc., adult businesses can be specially regulated by local governments under the theory that the regulations are content neutral because they are targeted at the “secondary effects” of such businesses.  Reed held that any facially content based law should be subject to strict scrutiny.  Laws that apply to adult businesses are arguably facially content based, since they apply to particular forms of speech and expression.  Thus, there was skepticism that Reed might portend an overruling of prior cases regarding adult businesses.   Continue Reading Seventh Circuit Hints That Reed Does Not Apply In Adult Business Regulation Cases

Nightclub operators challenged Wickliffe, Ohio’s nightclub ordinance, which required permits for the operation of for-profit nightclubs, defined by the ordinance as places “to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages; all of which are provided for a consideration that may be included in a cover charge or included in the price of the food and beverage.”  The nightclub operators claimed that the ordinance limited the right to assembly.  The court held that the permitting of businesses is not a regulation of expression or assembly, even though some First Amendment-protected activity might be implicated in an attenuated manner.  The court also found that the permitting requirement was not overbroad because it did not reach a substantial amount of protected expression or other protected conduct.

Miller v. City of Wickliffe, No. 1:12-CV1248, slip op., 2015 WL 9304665 (N.D. Ohio Dec. 21, 2015)

Panama City, Florida passed five ordinances aimed at reducing the impacts of spring break revelers in the popular Gulf Coast tourist destination.  One of the ordinances limited the hours of alcoholic beverage sales during the month of March, while others limited possession or consumption of alcohol in commercial parking lots, on City right-of-ways, and on the beach.  Several entertainment businesses filed suit against the City, including with First Amendment Free Speech claims.  The federal district court assumed that the conduct in question was speech, but found that the ordinances in question were justified without reference to the content of the speech in question, and were proper time, place, and manner restrictions that provided ample alternative channels for communication of the entertainment.  The court additionally found that the City had relied on adequate evidence of criminal activity and other antisocial behavior in enacting the ordinances.  The court denied the plaintiffs’ motion for a preliminary injunction.

Funtana Vill., Inc. v. City of Panama Beach, No. 5:15CV282-MW/GRJ, slip op., 2016 WL 375102 (N.D. Fla. Jan. 28, 2016)