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HomeMy WebLinkAboutMISC LOCAL REGULATION OF SEXUALLY ORIENTED BUSINESSES WILLIAM M. McKAMIE FLETCHER & SPRINGER, LLP 13750 San Pedro, Suite 600 San Antonio, Texas 78232 (210) 546 -2122 (Telephone) (210) 546 -2130 (Telecopier) mick @fletchspring.com Presented to the Texas City Attorneys Association Semi - Annual Summer Meeting South Padre Island, Texas June 7, 2002 . .:. LOCAL REGULATION OF SEXUALLY ORIENTED BUSINESSES I. Introduction * What is a Sexually Oriented Business? - Adult businesses in America continually change their nature and character. There is a plethora of sexually explicit materials available to the public in a variety of different venues and in a variety of different types of businesses. So what type of establishment constitutes a sexually oriented business? The Supreme Court has upheld definitions that properly balanced First Amendment interests with the needs of local governments to regulate time, place and manner of businesses commonly associated with harmful secondary effects. While a regulation must not require people of normal intelligence to guess at its meaning, Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), the prohibition against successive vagueness "does not invalidate every statute which a reviewing court believes could have been drafted with greater precision." Rose v. Locke, 423 U.S. 87, 94 (1975). For example, in Young v. American Mini - Theatres, the City of Detroit defined an "adult motion picture theater" as: An enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," (as defined below), for observation by patrons therein. Young, 427 U.S. 50, at 53, n. 5. The plaintiff challenged this definition as vague, claiming that adult motion picture theatre operators would have to guess at when a film would cross the threshold amount of sexual activity to require the theatre showing it to be licensed. The Supreme Court held that the plaintiff adult businesses fell clearly within the definition, because they regularly offered adult films. In City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000): "Nudity" means the showing of the human male or female genital, pubic area or buttocks with less than a fully opaque covering; the showing of the female breasts with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breasts, which device simulates and gives the realistic appearance of nipples and/or areola." -1- This definition has been upheld as sufficiently clear to support regulation, and is used widely in licensing and zoning ordinances. Of course, it can be presumed that a venue that features nudity as defined above, is a sexually oriented business. Typically, ordinances contain definitions of sexually oriented businesses to include gentlemen's clubs, cabarets, some massage parlors, escort services, nude modeling studios, adult video stores, peep show parlors, nude dancing establishments, and like businesses. * Why Regulate SOB's? - Sexually oriented businesses have expanded and grown significantly in the last decade. In 1996, the portion of the entertainment industry that focuses on adult and sexually oriented entertainment grossed approximately $8,000,000.00. Alan C. Weinstein, "Licensing Ordinances as an Adjunct to Zoning Regulation of Sexually Oriented Businesses (Part I), "22 ZONING AND PLAN. L. REP. 2 (1999). As these businesses have expanded, cities have adopted ordinances to impose location restrictions and operational standards that prohibit a physical contact between performers and customers, prohibit direct tipping of performers, and impose distance restrictions between performers and customers. The owners and operators of sexually oriented businesses have been aggressive in challenging many of these regulations, resulting in a fairly rapid change in constitutional applications and a critical analysis of state and local laws. A variety of substantial governmental interests are advanced by the licensing and regulation of sexually oriented enterprises. Communities seeking to avoid criminal activity in an adult business, have an interest in ensuring that the persons operating the establishment have not recently been convicted of crimes. Requiring licenses of owners and employees of the business serves to identify participants in the enterprise, and helps to prevent employment of minors. Interior configuration standards and prohibitions on certain conduct, prevent illicit sexual activity and protect the public health from problems associated with peepshow booths and nude dancing establishments. The Supreme Court has recognized that a city has broad police power to prevent the negative secondary effects of sexually oriented businesses through special regulations. A number of cases have found that prostitution, indecent exposure, masturbation and :other elicit sexual activity frequently occur on the premises (and in the vicinity) of sexually oriented businesses. Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82 (5 Cir. 1992). Courts have upheld regulations that require booths to either be visible by persons adjacent to the booth, or by an employee who is required to monitor booth activity, in spite of privacy and equal protection challenges. These regulations combat prostitution. Bamon Corp. v. City of Dayton, 923 F.2d 470 (6 Ciri 1991). * Types of Local Regulation - Regulation of sexually oriented businesses has evolved into the following general categories: zoning (location regulations), licensing (qualification standards), and operational (protective safeguards). While completely nude dancing in adult entertainment establishments can be prohibited, complete nudity may not be prohibited in other entertainment venues such as performances in theatres. Therefore, a prohibition against "any person appearing in a state of nudity in any place where the general public is invited," is void on its face for overbreadth. An operator of an adult -2- entertainment establishment could successfully challenge a prohibition on completely nude dancing, notwithstanding that prohibition of completely nude dancing and adult entertainment establishments could be constitutionally prohibited. Note that most updated city sexually oriented business regulations require performers to wear pasties and a G- string. City of Erie v. Pap's A.M., 529 U.S. 277 (2000). In Pap's A.M., the Supreme Court held that an ordinance prohibiting public nudity did not infringe unnecessarily on the constitutional rights of nude dancers in nude dancing establishments, by requiring them to wear pasties and G- strings during their performances. Justice Rehnquist stated that requiring the dancers to wear pasties and a G- string "does not deprive the dance of whatever erotic message it conveys." B. General Constitutional Principles As a constitutional matter, the value of freedom of expression prevails over other democratic values. In litigation, this principle serves as the basis for challenging the constitutionality of law or governmental action on First Amendment grounds. The defense against such a challenge can often be difficult to make. The general rule of law that statutes are presumed to be constitutional does not apply in the case of regulations affecting free speech rights, including those involving sexually oriented expression. The burden of proving the constitutionality of regulations shifts to the government. It is especially important that a record be developed prior to the adoption of the ordinance or regulation, even if the record is composed only of studies conducted in similar jurisdictions. Regulations that are directed to a particular view point or content of speech are subject to strict scrutiny, and a compelling interest must be demonstrated by a government to support such regulations. Most land use regulations oriented toward the land use perimeters of time, manner and place, rather than toward particular view point or content, but where time, place and manner restrictions are involved, the First Amendment requires that regulations must be "no greater than necessary" to protect the substantial governmental interest sought to be advanced. Federal court decisions on whether there is an adequate fit between the purpose and the means of the regulations are generally case specific, so each community and its regulations must be carefully crafted. The local government attorney must closely examine court opinions and look for principles and results that may apply to a particular regulation. * -'The Narrow Specificity Principle — This principle forms a part of a commercial speech doctrine and stands for the proposition that a regulation must be no more extensive than necessary to advance the legitimate governmental interest at stake and must allow ample opportunity for an expressive message to be conveyed. * The Content Neutrality Principle — The government may not proscribe any expression because of its content, and an otherwise valid regulation violates the First Amendment if it discriminates among different types of expression based upon content. Under the view point neutrality aspect of the principle, the government cannot regulate expression in such a way as to favor one view point over another. Under the category neutrality aspect of the principle, the -3- government generally cannot regulate in such a way as to discriminate between different categories of expression. There are two exceptions to the principle of category neutrality, both of which are applicable to land use regulation by local governments. First, in order to deal with undesirable secondary effects resulting from concentration of adult entertainment establishments in a particular area, the government can enact zoning regulations specifically applicable to those establishments (such as a requirement that dancers wear a small amount of clothing in order to deal with the undesirable secondary effects associated with nude dancing). The Supreme Court has dealt with governmental licensing of expression by imposing very specific requirements on such licensing. * The Prior Restraint Doctrine — A prior restraint directly interferes with the ability of the public to receive information, and has a freezing effect on expression. Therefore, a prior restraint is presumptively unconstitutional and imposes on the government a heavy burden of justification. In Freedman v. Maryland, 380 U.S 51 (1965), the Supreme Court held that "any system of prior restraint" bears a "heavy presumption against its Constitutional validity." For our prior restraint to be upheld, the following safeguards must be met: 1. The decision to issue or deny a license must be made within a brief, specified and reasonably prompt period of time; B. The licensing scheme must provide for prompt judicial reviews; and C. The burden of initiating review must be on the government, not on the challenger. * The Commercial Speech Doctrine — The constitutionality of governmental regulation of commercial speech requires application of this four -part analysis: I. The commercial speech must concern lawful activity and must not be misleading. II. The government must have a substantial interest to justify the regulation. III. The regulation must directly advance the asserted governmental interest. IV. The regulation may not be more extensive than is necessary to serve the asserted interest. The government will not be given the benefit of the doubt about the constitutionality of a land use regulation, and the burden of sustaining the regulation against a constitutional challenge falls on the local government. The regulation must be carefully tailored to achieve its legitimate, stated public purpose. Land use permit requirements must provide for a specific and speedy decision by the licensing body to avoid being held an invalid "prior restraint" on speech. First Amendment protection against prior restraint on speech impose substantial restrictions on the types of land use regulation available to local governments. Clear standards must be provided to guide the discretion of the local official. The local official must decide on the permit within a specific and brief period, during which the status quo must be preserved. The regulation must state and express a prompt judicial review procedure in a case of a denial. An important effect of the prior restraint doctrine is to discourage conditional use permits in favor of permits issued as a matter of right. A conditional use permit necessarily requires discretion from the local government agency. It is, therefore, subject -4- to criticism as being vague and over broad. Local land use regulations affecting First Amendment issues oriented business must be carefully drafted to include specific application requirements, review standards, and review procedures. Courts increasingly invalidate sexually oriented business regulations, because administrative and judicial review is not sufficiently prompt. Since 1998, this has been one of the most frequent challenges to local ordinances. Baby Tam and Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9 Cir. 1998) (Baby Tam I); Baby Tam and Co., Inc. v. City of Las Vegas, 199 F.3d 111 (9` Cir. 1999) (Baby Tam II); Baby Tam and Co., Inc. v. City of Las Vegas, 247 F.3d 1003 (9 Cir. 2001) (Baby Tam III). Cases now often involve the constitutional standard for determining whether a sexually oriented business regulation leaves reasonable alternative locations to lawfully operate. City of Renton v. Playtime Theatres Inc., 475 U.S. 41 (1986). * Sexually Oriented Business in a Small Community — Case law has established that non - obscene adult entertainment is a protected First Amendment activity, for which local governments must make sites reasonably available. Arguably, the Supreme Court has held open the possibility that not every small jurisdiction must allow sexually oriented businesses. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). For example, in Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251, n. 2 (11 Cir. 1999), the Court determined that the relevant real estate market contained available sites for adult entertainment, including those as far as one and a quarter mile south of the city limits. Previously, the same court had noted that the Supreme Court had not decided that "eve unit of local government entrusted with zoning responsibilities must provide a commercial zone in w rich protected activities Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, n. 2 (11` Cir. 1997) i * Is the Speech or Conduct Protected? — In order for First Amendment speech protections to apply, there must be some type of speech or expression involved. Questions arise as to whether nudity or nude dancing is a type of protected speech or expression. The Supreme Court has stated that speech is not limited to the spoken or written word. City of Erie v. Pap's A.M., 529 U.S. 277 (2000). First Amendment speech protection can extend to conduct, as long as the conduct is accompanied with some type of expression. Texas v. Johnson, 491 U.S. 397, 404 (1989). To be considered speech, the conduct also must demonstrate a sufficient amount of expression. Conduct signifying only a small amount of the expression will not be protected under the First Amendment. Spence v. Washington, 418 U.S. 405 (1974). In that case, the Supreme Court held that conduct is protected by the First Amendment when: "(1) an intent to convey a particularized message was present; and (2) the likelihood was great that the message would be understood by those who viewed it. Not all adult businesses are entitled to First Amendment protection. Many sexually oriented business ordinances encompass sexual encounter clubs, escort services, massage parlours, movie theatres, video stores, and cabaret or dance clubs. There is a difference in the type of protection to which such businesses are entitled. The Supreme Court unequivocally held that adult businesses that do not "purvey sexually explicit speech," such as "escort agencies and sexual encounters centers" are not protected by the First Amendment. FW /PBS Inc. vs. City of Dallas, 493 U.S. 215. -5- In Pap's A.M., Justice O'Connor stated that "being in a state of nudity is not an inherently expressive condition." Pap's A.M. at 289. The Court has implied that certain types of expression, such as offensive, indecent, or expression related to child pornography, is less deserving of full protection than more traditional types of speech. The Court has decided that this type of "lower value" speech can be regulated more heavily than "higher value" speech. Young v. American Mini Theatres, 427 U.S. 50 (1976). The Supreme Court, however, has never determined precisely which adult businesses are entitled to heightened constitutional scrutiny. * Evidence of Harmful Secondary Effects — The majority of the Supreme Court in Pap's A.M., stated that "as long as the evidence relied upon is reasonably believed to be relevant to the problem that the City addresses," then the City does not have to produce its own evidence, but may rely on evidence ofharmful secondary effects, the nude dancing. Pap's A.M., 529 U.S. at 296. Even though it is not clear how much evidence of secondary effects a government must show to justify its need for the law, local governments now have a discussion of the sufficiency and insufficiency of particular evidence in the majority and concurring opinions in Pap's A.M. The 9 Circuit invalidated the City of Las Vegas' adult business ordinance as a prior restraint. In two decisions known as the "Baby Tam" cases, the Court found that the ordinance did not provide for prompt judicial review in the event of a license denial. Baby Tam and Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9 Cir. 1998) (Baby Tam I); Baby Tam and Co., Inc. v. City of Las Vegas, 199 F.3d 111 (9 Cir. 1999) (Baby Tam II). In Reno v. ALCU, 521 U.S. 844 (1997) the Supreme Court intimated that the internet is now the principal channel through which most Americans can receive sexually explicit communication. The Court also identified the widespread availability of sexually explicit material through the internet including hard core pornography. Reno, at 2336. Therefore the internet as an available alternative venue for First Amendment expression is an argument that could be made to help support location restrictions of sexually oriented businesses. 3. Zoning — major cases United States v. O'Brien, 391 U.S. 367 (1968), is the landmark political speech case, establishing the framework for evaluating content neutral regulations of conduct with an incidental impact bn expression. A regulation is valid if it: 1. Is within the constitutional power of the government; 2. Is designed to service substantial governmental interest that is unrelated to the suppression of free expression; 3. Is narrowly tailored to serve the interest; 4. Leaves open reasonable alternative avenues of communication. Many challenges against zoning ordinances center around the requirement that reasonable alternative avenues of communication be provided. -6- In Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the operators of two adult theatres in Detroit challenged the City's ordinance that required adult theatres (defined or referring to the content of films shown) to be licensed and to be located at least 1000 feet away from any two other regulated uses (adult theatres, taverns, pool halls, etc.). Based upon the substantial justifications given for the ordinance by Detroit's city council, the district court granted summary judgment for the City. The Sixth Circuit reversed, holding that the ordinance was a content based prior restraint on speech, and was not justified by merely establishing that it was designed to serve a compelling public interest. The Supreme Court reversed in a 5 -4 decision, with Justice Stephens writing the majority opinion. The Court held that the ordinance was not vague for failure to specify exactly how much of a film must be sexual in nature before the film could be characterized by an emphasis on sex, because the theatres regularly featured erotic films and there was no question of the applicability of the ordinance to those activities. The Plaintiffs were held not to have standing to assert the First Amendment rights of third parties, because they did not show that the threat of the ordinance being applied improperly was real and substantial, and because any ambiguity could be corrected through a narrowing construction by the state courts. The licensing and zoning ordinances in question were determined to be valid means to protect the quality of life and neighborhoods, and did not constitute a prior restraint on speech. In this case the Supreme Court broadly sustained the power of local governments to utilize land use regulations, to protect the quality of life of their citizens. The Court recognized that the governmental interest to prevent the adverse effects of adult businesses is important and substantial, and the government's interest in stable neighborhoods was unrelated to the suppression of any message. The Court also held that the impact of the regulations upon erotic expression was incidental and, no more than necessary to prove further the governments interest in protecting neighborhoods. City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) was decided ten years after Young. The City of Renton adult theatre zoning ordinance was analyzed as a content neutral regulation, with the stated purpose to prevent the secondary effects of sexually oriented businesses upon neighborhoods. The Court found that the ordinance served a substantial governmental interest , even though the City of Renton failed to conduct a local study or to demonstrate that the impact of adult theatres in Renton nullified the claim of substantial governmental interest. The Court explicitly held: The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonable believed to be relevant to the problem that the city addresses. Renton, 475 U.S. 41, 51 -52 (1986). The City of Renton relied upon the study and experiences of Seattle, and the Court held that was sufficient, despite the fact that the zoning regulations that Seattle used were different from those used in Renton. Importantly, the court also addressed the issue of whether the zoning regulations -7- allowed for "reasonable alternatives of communication." The court held that Renton's ordinance met the standard because more than 5% of the land mass in Renton was opened to adult theatres. The plaintiffs had claimed that practically none of the land was for sale or lease, so that none of the available space was commercially viable. The Court held that these factual circumstances, even if true, would not demonstrate a defect in the city's regulation, finding that the adult theatres "must fend for themselves in the real estate market on an equal footing with other prospective purchasers and lessees." Renton, 475 U.S. at 54. Improper interpretation of ordinance terms by regulatory officials can also lead to invalidation of the regulations. In Tollis v. San Bernardino County, 827 F.2d 1329 (9 Cir. 1987), a county official interpreted the county's adult use ordinance to apply to mainstream theaters, even if the theater showed pornographic films only on one occasion. The district court agreed with the Plaintiff that the ordinance was unconstitutionally over broad as applied. The Ninth Circuit affirmed, but instead of finding that the ordinance was over broad, it concluded that the ordinance was not narrowly tailored to serve a substantial governmental interest. The county presented no evidence that a single showing of an adult movie would have any harmful secondary effects on the community. It is clear that definitions must be interpreted to apply only to a category of establishments that are associated with negative secondary effects, and a one time use of a building for sale or presentation of sexually explicit fare does not bring it within that category. Use the term "regularly" in the definitions of adult theatre, adult cabaret, adult performance or adult performance center to eliminate the possibility of a "single use" interpretation like the one that lead to the invalidation of the ordinance in Tollis. As Justice Scalia wrote in his concurring opinion in FW/PBS, "regularly features" means "a continuous presentation of the sexual material as one of the very objectives of the commercial enterprise. FW /PBS, Inc. v. City of Dallas, 493 U.S. 215, 260 (1990). The ordinance that was upheld in Young defined an adult book store as an establishment "having as a substantial or significant portion of its stock in trade distinguished or characterized by an emphasis on matter depicting, describing are related to "specified anatomical areas," (as defined below, or an establishment with a segment or section devoted to the sale or display of such material." Young, 427 U.S. at 53, n. 5. The Court rejected a vagueness argument against the phrase "characterized by an emphasis." Courts have rejected the argument that "substantial or significant portion" is unconstitutionally vague. ILQ Invs. Inc. v. City of Rochester, 25 F.3d 1413 (8 Cir. 1994); Mom NPop's, Inc. v. City of Charlotte, 1998 U.S. App. LEXIS 20272 (4t Cir. 1998). Also the phrases "major businesses" SDJ, Inc. v. City of Houston, 636 F.Supp.1359, 1376 (1986) and "principle business purpose," Dumas v. City ofDallas, 648 F. Supp. 1061, 1079 (N.D. Texas 1986), aff'd 837 F.2d 1298 (5 Cir. 1988), reversed on other grounds; FW /PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), have also been upheld. Cities commonly seek to avoid ambiguity by using percentages to define adult uses. Many of these efforts have failed, Therefore, it is advisable to use the Court tested language that has been held not to be unconstitutionally vague, in lieu of a more precise percentage definitions. City of New York v. Les Hommes, 724 N.E. 2d 368 (N.Y. 1999); Christy v. City of Ann Arbor, 824 F.2d 489 (6' Cir. 1987); World Wide Video v. City of Tukwila, 816 P.2d 18 (Wash. 1991) -8- * Reasonable Alternative Avenues of Communication — Generally a city may not use a zoning ordinance to effectively preclude adult businesses from locating within the city. The Supreme Court has not gone so far as requiring that every small city or village provide a zone in which adult businesses may locate. Areas open for adult businesses immediately surrounding a small city may provide reasonable alternative avenues for communication. In Schad v. Borough of Mount Ephrain, 452 U.S. 61 (1981), the Supreme Court invalidated a zoning ordinance that prohibited all live entertainment. The Borough suggested that the ordinance was not unconstitutional because live entertainment in the form of nude dancing was available nearby, although not within the corporate limits. The Court stated "this may very well be true, but the Borough cannot avail itself of that argument in this case. There is no county wide zoning in Camden County, and Mount Ephrain is free under state law to impose its own zoning restrictions, within constitutional limits." Schad, 452 U.S. at 76. The question whether every community, regardless of size or proximity to other available venues, must provide a zone for adult businesses is undecided. In Keego Harbor Co. v. City of Keego Harbor, the Sixth Circuit cited the Schad decision and did not find that all municipalities must provide an area for adult entertainment. Still the ordinance in question passed by a city of only 3000 was invalidated because it had the effect of totally prohibiting adult uses in the city. Keego Harbor Co. v. City of Keego Harbor, 657 F.2d 94 (6` Cir. 1981). The New Jersey Supreme Court upheld the state statute that prohibited sexually oriented businesses from locating within a 1000 feet of another sexually oriented business or other defined land uses, despite the fact that the effect of the statute was to prohibit adult businesses from locating within the township of Saddlebrook. The Court concluded that the available sites for adult businesses existed within the surrounding vicinity. Township of Saddlebrook v. AB Family Ctr., 722 A.2d 530 (NJ 1999). * Other Venues for Communicating Message — Zoning regulations do not generally impact the other venues available for dissemination of free speech messages in the sexually oriented business market. For instance, such messages are widely available in magazines such as Hustler and Penthouse, cable television, telephone services and free internet sites. Of course, there are outlets for illegal expression of constitutionally unprotected sexual contact including peep show booths, lap dances and couch dances. The availability of sexually oriented expression and even pornographic expression through other means does not justify the preclusion of adult businesses from a particular community. The most common form of zoning regulation is the dispersal method approved by the Supreme Court in Young. This method requires adult businesses to be separated by a distance from each other and from specified land uses, such as churches, schools and residential neighbors, and from each other. If the regulation allows for reasonable alternative sights for such businesses, a court will usually uphold such limitations as a valid exercise of a zoning power. For questions about the standards to apply to your community on the issue whether enough land is available to serve as a venue for sexually oriented expression, refer to the following cases: Woodall v. City of El Paso, 49 F.3d 1120 (5 Cir. 1995); 955 F.2d 1305 (5 Cir. 1992); 950 F.2d 255 (5 Cir. 1995) - a series of cases. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9 Cir. 1993), cert. denied 511 U.S. 1030 (1994); Seung Chun Lim v. City of Long Beach, 217 F.3d 1050 (9` Cir. 2000) cert denied 121 S. Ct. 1189 (2001); Diamond vs. City of Taft, 215 F.3d 1052 (9 Cir. 2000). -9- * Amortization of Non - Conforming Adult Uses — The Constitution does not require indefinite "grandfathering" for sexually oriented businesses that become nonconforming uses, if the ordinance provides for a reasonable amortization period recovery of investment. SDJ, Inc. v. City of Houston, 636 F. Supp. 1359, 1370 (1986), aff'd, 837 F.2d 1268, 1278 (5 Cir. 1988); Dumas v. City of Dallas, 648 F. Supp. 1061, 1171 (ND Tex. 1986), aff d 837 F.2d 1298 (5 Cir. 1988); Rathkopf, THE LAW OF ZONING AND PLANNING, Chapter 17B (Clark Boardman Callaghan). In 23 West Washington Street, Inc. v. City of Hagerstown, 1992 U.S. App. LEXIS 18014 (4 Cir. 1992), the City did not provide for grandfathering, or provide special exceptions for existing uses when a new zoning ordinance was passed that affected sexually oriented businesses. The Court upheld the ordinance because it provided for amortization provisions, which allowed the purposes of the ordinance to reduce secondary effects of adult businesses. Challenges to ordinances that do not contain amortization provisions, or that contain amortization provisions with short time periods are often challenged. Such arguments often fail because amortization of a nonconforming use does not generally render the property completely worthless under the federal constitutional analysis. Ranchhouse, Inc. v. Amerson, 238 F.3d 1273 (11 Cir. 2001); NW Enters. v. City of Houston, 27 F. Supp. 2d 754, 865 (SD Tex. 1998). Court opinions discuss the reasonableness of the amortization period in determining whether the amortization clause should be upheld. To determine the appropriate length of an amortization period in a particular community, the City must balance the substantial governmental interests advanced by the ordinance with the need to provide a business a fair amount of time to recoup its investment. Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153 (1978), cert. denied 441 U.S. 946 (1979). Courts require a sexually oriented business to exhaust as administrative remedies before seeking relief in state or federal court. An example is Stringfellow's of New York, Ltd. v. City of New York, 694 N.E. 2d 407, 420 (N.Y. 1998). Typically conditional use ordinances operate as licensing schemes and allow the denial of a use permit based on the zoning boards finding that the proposed use will have adverse effects upon adjacent and surrounding uses. Since the negative secondary effects of adult businesses constitute the very reason for regulating them more stringently than other land uses, some courts have invalidated conditional use permitting schemes as applying to adult businesses. Landover Books, Inc. v. Prince George's County, 566 A.2d 792 (Md. Ct. Spec. App. 1989); Dease v. City ofAnaheim, 826 F.Supp. 336 (C.D. Cal. 1993). That does not mean that cities may never place special requirements on adult uses, but when they do so, objective standards and guidelines for the zoning board to follow in deciding whether to grant or deny the permit, must be expressly established. 801 Conklin Street Ltd. v. Town of Babylon, 38 F.Supp.2d 228, 244 (E.D.N.Y. 1999). 4. Licensing Some cities have abandoned permitting and licensing schemes altogether and allowed sexually oriented businesses to open as a matter of right (as a permitted use) when certain objective criteria are met. These criteria often include the distance restriction and operational standards. The problem with this approach is that license or permit suspension and revocation is no longer available -10- as an enforcement tool. The city only has civil and criminal proceedings available if a sexually oriented business violates its ordinances. The term "prior restraint" is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. United States, 509 U.S. 544, 550 (1993). The purpose of the prior restraint doctrine is to prevent government censorship. O'Connor v. City and County ofDenver, 894 F.2d 1210, 1220 (10 Cir. 1990). Prior restraint must take place "under procedural safeguards designed to obviate the dangers of a censorship system." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). * Licensing Business Operations — In FW /PBS Inc. v. City ofDallas, cities have been given some guidance as to what to avoid in licensing ordinances. Justice O'Connor's majority opinion finds that censorship statutes where aimed at suppressing obscenity prior to its dissemination, rather than prosecuting after dissemination. In the obscenity context, it is reasonable for courts to place the burden of going forward on the government, because the government bears the burden of initiating a prosecution. In the content neutral licensing context, however, placing burdens on the government is not subject to the same analysis, provided that the standards for denying a license are not based on unbridled discretion. The decisions are more or less administrative and not judicial. There must be limitations on the time within which a city must issue the license, and prompt judicial review must be available. * Avoiding Unbridled Discretion — The Constitution requires any licensing requirement for speech related activity to be governed by narrow, definite, and objective criteria in order to avoid prior restraint problems. City of Lakewood v. Plain Dealer Publ'g Company, 486 U.S. 750 (1988). Unbridled discretion in the hands of a government official to deny a license makes room for censorship. The failure to place a time limit on when the licensing decision must be made also results in censorship. If the ordinance is specific in spelling out what sexual acts and what parts of the human body and what sexual toys qualify as sexual, then the ordinance can be upheld under the constitutional challenge. Courts recognize that a "modicum of judgment" must be exercised by the regulators. Baby Tam and Company, Inc. v. City of Las Vegas, 247 F.3d 1003 (9 Cir. 2001) (Baby Tam III). An adult business ordinance must specify the time frame in which the licensing agency must make a decision. * Prompt Judicial Review — The Fourth, Sixth and Ninth circuits have held that when a city denies a sexually oriented business license, the ordinance must guarantee a prompt judicial decision on the merits of a challenge to the denial within a brief, specified period of time. 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988 (4t Cir. 1995); Lounge Mgmt., Inc. v. City ofPaducah, 202 F.3d 884 (6 Cir. 2000); Baby Tam & Company, Inc. v. City ofLas Vegas, 154 F.3d 1097 (9 Cir. 1998) (Baby Tam 1). The First, Fifth, Sixth and Eleventh circuits have held that the prompt judicial review requirement is met if the ordinance allows for prompt access to the courts. Jews for Jesus v. Massachusetts Bay Transp. Auth., 984 F.2d 1319 (1S Cir. 1993); TK's Video, Inc. v. Denton County, 24 F.3d 705 (5 Cir. 1994); Graff v. City of Chicago, 9 F.3d 1309 (7 Cir. 1993) (en banc); Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11t Cir. 1999). Under FW /PBS, -11- if a city cannot guarantee a prompt judicial decision, the enforcement of its license denial must be stayed until a court has validated the denial. The problem with this approach is that the sexually oriented business has no incentive to aggressively pursue an appeal of the denial, as it would have the benefit of the permit for an indefinite period until a judicial decision is rendered. The Law in the Firth Circuit provides that prompt access to the courts is required by an ordinance and if that is provided, the licensed denial can be enforced in the interim. The Supreme Court may decide this issue in the case of Thomas v. Chicago Park District, 227 F.3d 921 (7 Cir. 2000) rehearing denied, for which certiorari has been granted. A potential solution would be for the cities to ask the legislature to enact legislation mandating short time periods for state courts to resolve administrative appeals. Such efforts have been successful in Nevada, California and Tennessee. * Renewal Suspension and Revocation — The power to license necessarily includes the power to revoke a license and the power not to renew a license. Still it would appear that decisions to revoke or deny renewal of a previously issued license would seem to be analyzed under thof content neutral steps provided in O'Brien, FW /PBS and the other major Supreme Court announcements in this area. [In other words, if the revocation or non - renewal operates as a prior restraint, then the full analysis applicable to such regulations must be applied to determine the validity of the revocation or non - renewal.] * License Fees — License fees charged to adult entertainment businesses must be reasonable, must be "revenue neutral." Schultz v. City of Cumberland, 228 F.3d 831 (7 Cir. 2000). The fees must be intended only to defray the costs of administering the ordinance. In general, the burden of proving that a license fee is unreasonable is on the applicant for the license. Worldwide Video, Inc. v. City of Tukwila, 816 P.2d 18 (Washington 1991); Adult Entm't Ctr., Inc. v. Pierce County, 788 P.2d 1102 (1990). Cities should avoid requiring a bond or license fee intended to remunerate victims or the community for the expense of prosecutions associated with the operation of the business. Such exactions have been held to excessively burden constitutional rights. Wendling v. City of Duluth, 495 F. Supp. 1380 (D. Minn. 1980); American Target Advertising, Inc. v. Giani, 199 F.3d 1241 (10 Cir. 2000). * Regulating Persons Involved in the Sexually Oriented Businesses — An application for a license to operate a sexually oriented business should require applicants to disclose information that is reasonably necessary (1) to identify and communicate with the applicant; and (2) to determine whether a disqualification in the ordinance applies to the particular applicant. Under the identification factor, courts have upheld requirements that the applicants provide their names, addresses, identifying documents and documents that substantiate age. TK's Video, Inc. v. Denton County, 24 F.3d 705 (5 Cir. 1994). Under the disqualification function, courts will uphold the required disclosure of prior criminal conduct, if such conduct is a valid basis for a disqualifying applicant. Schultz v. City of Cumberland, 228 F.3d 831 (7 Cir. 2000). Complete identification of sexually oriented business employees is essential to preventing prostitution and other elicit sexual activity. KEV, Inc. v. Kitsap County, 793 F.2d 1053 (9 Cir. 1986). -12- * Regulating the Interior Premises - Stage and Booth Requirements — Cities have been held to have a substantial interest in regulating the interior configurations of strip bars and dance clubs. The Supreme Court has recognized that such establishments have repeated problems with prostitution and other elicit activities. City of Erie v. Pap's A.M., 526 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Some cities have enacted ordinances establishing buffer zones or specified distances that must be maintained between entertainers and customers. These have generally been upheld as valid manner restrictions on presentations of striptease. City of Colorado Springs v. 2354 Inc., 896 P.2d 272; Colacurcio v. City of Kent, 163 F.3d 545 (9` Cir. 1998). To ensure compliance with configuration standards and other requirements, inspection provisions are often included in sexually oriented business ordinances. Most courts have recognized that there is an obvious need for inspections, and that a city's goal of preventing negative secondary effects could be compromised without the ability to monitor compliance. New York v. Burger, 482 U.S. 691(1987); Allno Enterprises, Inc. v. Baltimore County, 2001 U.S. App. LEXIS 11522 (4 Cir. 2001). * Vicarious Liability of Business Operators — Ordinances often impose either civil license revocation or criminal sanctions on sexually oriented businesses for the unlawful acts of employees and customers. In United States v. Park, 421 U.S. 658 (1975), the Supreme Court ruled that imposing criminal liability for the acts of another does not necessarily require proof that the responsible party lcnowingly permitted the illegal conduct. The Court has not decided what level of knowledge (actual, constructive, or none) is a constitutional requirement before imprisonment could be imposed. Staples v. United States, 511 U.S. 600 (1994). There is no constitutional obstacle to imposing a fine upon a business operator for the acts of another on the premises. Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (1 1 Cir. 1999). Respondeat superior liability could be applied to hold business operators responsible for employees under their scope of authority, because the regulations involved are meant to deter activity that pose a special risk to public health or safety, and are not traditional crimes. It would seem that the better practice would be to require showing at least of negligence before imputing liability to a licensee for the conduct of others at the business. Broadway Books, Inc. v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986). 5. Other Types of Regulation * Moratoria — Moratoria, as applied to speech related businesses, constitutes a clear restraint on expressive activity and is greatly disfavored. Holmberg v. City of Ramsey, 12 F.3d 140 (8 Cir. 1994). The better practice is to simply follow normal procedures for granting a zoning permit and to pass a more restrictive ordinance to meet a growing trend in the community. This type of approach generally will not invalidate an otherwise valid ordinance. Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); D.G. Rest. Corp. v. City of Myrtle Beach, 953 F.2d 140 (4` Cir. 1991). -13- Some cities have adopted ordinances that restrict advertisement of tobacco products and alcoholic beverages on billboards in areas where children congregate. Anheuser Busch, Inc. v. Schmoke, and Penn Advertising v. Mayor and City Counsel of Baltimore, 101 F.3d 325 (4 Cir. 1996) cert. denied, 520 U.S. 1204 (1997). Arguably then similar restrictions on outdoor advertisement of sexually oriented businesses could be justified. The argument would be that the governmental interest in protecting children may justify special regulations. * Hours of Operation — One of the simplest and most effective ways to regulate and abate the negative secondary effects of sexually oriented businesses is through the restriction on hours of operation. The Supreme Court has not specifically ruled on hours of operation limitations as applied to these businesses but some Courts of Appeals have upheld them. Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5 Cir. 1986); Lady J. Lingerie, 176 F.3d at 1358. A significant case is Mitchell v. Commission on Adult Entertainment Establishment, 10 F.3d 123 (3` Cir. 1993), where the Court analyzed the Delaware statute regulating hours of operation of adult businesses. The Third Circuit's applied the O'Bryan and Renton test and upheld the hours of operation restriction, which prohibited opening of the businesses between 10:00 a.m. and 10:00 p.m. Monday through Saturday. Five Courts of Appeals have adopted the Third Circuit's approach and have generally upheld the restrictions. Nat'l Amusements v. Town of Dedham, 43 F.3d 731 (P Cir. 1995); Richland Book Mart, Inc. v. Nichols, 137 F.3d 435 (6`h Cir. 1998); DiMa Corp. v. Town ofHallie, F.3d 823 (7 Cir. 1999); Lady J. Lingerie v. City of Jacksonville, 176 F.3d 1358 (11 Cir. 1999). It is prudent to identify state law closing hours for sexually oriented businesses that hold liquor licences to avoid potential conflicts with those state laws. One way to avoid a conflict would be to draft the ordinance hours of operation restrictions in the manner that the community and the City Council deems appropriate, and then include an exemption for liquor licensees to allow them to operate during the hours that their liquor license allows. 6. Conclusion The First Amendment imposes significant limitations on a local government's power to regulate sexually oriented businesses and the land upon which they sit. City attorneys scramble to consult with other city attorneys in other jurisdictions that have dealt with such businesses, and borrow studies and copy ordinance language. The problem is that the sexually oriented business industry= is well funded and sophisticated and always seems to be "ahead of the curve" in First Amendment legal analysis. Clearly, small communities are the least likely to have the resources to litigate issues. Consider factoring the internet into the equation to determine whether a community has a reasonable range of alternative sites for sexually oriented communication. If you want to adopt a "pasties and G- string" ordinance, or an ordinance establishing the "newer" forms of operational restrictions, create a solid record including accepted studies, assert specific findings and clarify an express purpose to withstand the high level of judicial scrutiny applied to your ordinance. The local government must be thoroughly prepared to support its actions in a case of legal challenge. There -14- is a high cost involved in the litigation of alleged constitutional rights, including damages and attorney's fees under 42 U.S.C. §§1983 and 1998. Uncertainties in the law require the practitioner to study carefully and keep current with developments. In that regard, please refer to the appendix attached to this paper. -15- SOURCES "Regulating Sexually Oriented Businesses," Thomas P. Brandt, Texas City Attorneys Association Semi - Annual Summer Meeting (1997) Local Regulation of Adult Businesses, Jules B. Gerard (2001) Protectin Fg_ree Speech and Expression - The First Amendment and Land Use Law, Daniel R. Mandelker and Rebecca L. Rubin, editors (2001) "Smut, Smokes, and Spirits: The First Amendment Re- examined," Deborah J. Fox, The Urban Lawyer, Vol. 32, No. 3 (Summer 2000) "Nude Dancing and First Amendment Scrutiny," Anne E. Mitchell, The Urban Lawyer, Vol. 34, No. 1 (Winter 2002) www.communitvdefense.org -16- l APPENDIX A SAMPLE ORDINANCE PROVISIONS - NATIONAL FAMILY LEGAL FOUNDATION NATIONAL FAMILY LEGAL FOUNDATION Page 1 of 24 SAMPLE SEXUALLY ORIENTED BUSINESS ORDINANCE ORDINANCE NO. AN ORDINANCE AMENDING THE ZONING ORDINANCE BY DISPERSING SEXUALLY ORIENTED BUSINESSES AND LIMITING THEM TO A SPECIFIED ZONING DISTRICT; PRESCRIBING DEFINITIONS OF SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR LICENSING AND REGULATION OF SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; PROVIDING FOR ADDITIONAL MISCELLANEOUS REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES. WHEREAS, sexually oriented businesses require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the City; and WHEREAS, the City Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of sexually oriented businesses in order to protect the health and well -being of the citizens; and WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values; and WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, the City Council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of fife; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, the City Council has determined that locational criteria alone do not adequately protect the health, safety, and general welfare of the people of this City; and WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the secondary effects of sexually oriented businesses; and WHEREAS, it is not the intent of the City Council to condone or legitimize the distribution of obscene material, and the Council recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce state obscenity statutes http: / /www.communitydefense.org /cdcdocs /PCSOB/html /appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 2 of 24 against any such illegal activities in the City. Pursuant to the authority granted by the Constitution and the legislature of the State of , BE IT ENACTED BY THE CITY COUNCIL OF , COUNTY, : SECTION I. PURPOSE AND FINDINGS. (A) Purpose. It is the purpose of this ordinance to regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. (B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Council, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), FW /PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000), and on studies in other communities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; St. Paul, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; Dallas, Texas; Newport News, Virginia; Bellevue, Washington; New York, New York; and St. Croix County, Wisconsin; and also on findings from the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Council finds: (1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises. (2) Certain employees of sexually oriented businesses defined in this ordinance as adult theatres and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments. (3) Sexual acts, including masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi - private booths or cubicles for viewing films, videos, or live sex shows. (4) Offering and providing such space encourages such activities, which creates unhealthy conditions. (5) Persons frequent certain adult theatres, adult arcades, and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses. (6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 3 of 24 businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV- AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections. (7) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States -- 600 in 198Z 2,200 in 1983, 4,600 in 1984, 8,555 in 1985 and 253,448 through December 31, 1992. (8) As of , 200, there have been reported cases of AIDS in the State of . (9) Since 1981 and to the present, there have been an increasing cumulative number of persons testing positive for the HIV antibody test in , . (10) The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990. (11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one -half million cases being reported in 1990. (12) The surgeon general of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn. (13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. (14) Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the. failure of the owners and the operators of the facilities to self - regulate those activities and maintain those facilities. (15) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view "adult" oriented films. (16) The findings noted in paragraphs number 1 through 15 raise substantial governmental concerns. (17) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns. (18) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the City. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfin 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 4 of 24 (19) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theatres. (20) Requiring licensees of sexually oriented businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments. (21) The disclosure of certain information by those persons ultimately responsible for the day -to -day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases. (22) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this ordinance is designed to prevent or who are likely to be witnesses to such activity. (23) The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance. (24) The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases. (25) The general welfare, health, morals and safety of the citizens of the City will be promoted by the enactment of this ordinance. SECTION II. DEFINITIONS. (1) ADULT ARCADE means any place to which the public is permitted or invited wherein coin - operated or slug- operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image - producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas." (2) ADULT BOOKSTORE, ADULT NOVELTY STORE OR ADULT VIDEO STORE means a commercial establishment which has as a significant or substantial portion of its stock -in -trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space for the sale or rental, for any form of consideration, of any one or more of the following: (a) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, slides, or other visual representations which are characterized by their emphasis upon the exhibition or display of "specified sexual activities" or "specified anatomical areas "; (b) instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. http:// www. conununitydefense. org/ cdcdocs/PCSOB/htmI/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 5 of 24 (3) ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (a) persons who appear semi -nude; or (b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities "; or (c) films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the exhibition or display of "specified sexual activities" or "specified anatomical areas." (4) ADULT MOTEL means a hotel, motel or similar commercial establishment which: (a) offers accommodations to the public for any form of consideration; provides patrons with closed - circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the exhibition or display of "specified sexual activities" or "specified anatomical areas"; and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions; and either (b) offers a sleeping room for rent for a period of time that is less than ten (10) hours, or (c) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours. (5) ADULT MOTION PICTURE THEATER means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." (6) ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi -nude, or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." (7) DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS UPON means the dominant or principal theme of the object referenced. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the exhibition or display of Specified Sexual Activities �r Specified Anatomical Areas," the films so described are those whose dominant or principal character and theme are the exhibition or display "Specified Anatomical Areas" or "Specified Sexual Activities." (8) EMPLOYEE, EMPLOY, AND EMPLOYMENT describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, or other status. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. (9) ENFORCEMENT OFFICER shall mean the City Zoning Administrator or such person as may be designated by the City Council. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 6 of 24 (10) ESCORT means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. (11) ESCORT AGENCY means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration. (12) ESTABLISH OR ESTABLISHMENT means and includes any of the following: (a) the opening or commencement of any sexually oriented business as a new business; (b) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; (c) the additions of any sexually oriented business to any other existing sexually oriented business; or (d) the relocation of any sexually oriented business. (13) LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business. (14) NUDITY or a STATE OF NUDITY means the showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state. (15) OPERATE OR CAUSE TO BE OPERATED means to cause to function or to put or keep in a state of doing business. "Operator" means any persons on the premises of a sexually oriented business who is authorized to exercise operational control of the business or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually oriented business regardless of whether that person is an owner, part owner, or licensee of the business. (16) PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. (17) SEMI =NUDE or in a SEMI -NUDE CONDITION means the showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part. (18) SEMI -NUDE MODEL STUDIO means any place where a person appears semi -nude and is provided to be observed, sketched, drawn, painted, sculptured, or photographed by other persons who pay money or any form of consideration. Nude Model Studio shall not include a proprietary school licensed by the State of or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 7 of 24 transferable to a college, junior college, or university supported entirely or partly by taxation; or in a structure: (a) that has no sign visible from the exterior of the structure and no other advertising that indicates a nude or semi -nude person is available for viewing; and (b) where in order to participate in a class a student must enroll at least three days in advance of the class; and (c) where no more than one nude or semi -nude model is on the premises at any one time. (19) SEXUAL ENCOUNTER CENTER means a business or commercial establishment, that as one of its principal business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of "specified sexual activities." The definition of sexual encounter establishment or any sexually oriented businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. (20) SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center. (21) SPECIFIED ANATOMICAL AREAS means: _ (a) the human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (b) less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola. (22) SPECIFIED CRIMINAL ACTIVITY means any of the following offenses: (a) prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity relating to a sexually oriented business; sexual assault; molestation of a child; or distribution of a controlled substance; or any similar offenses to those described above under the criminal or penal code of other states or countries; (b) for which: (1) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; (2) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or (3) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24 -month period. http: / /www.communitydefense.org /cdcdocs /PCSOB /html /appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 8 of 24 (c) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant. (23) SPECIFIED SEXUAL ACTIVITIES means any of the following: (a) the fondling of another person's genitals, pubic region, anus, or female breasts; (b) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or (c) excretory functions as part of or in connection with any of the activities set forth in (a) through (b) above. (24) SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty -five percent (25 %), as the floor areas exist on the date this ordinance takes effect. (25) TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following: (a) the sale, lease, or sublease of the business; (b) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or (c) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. SECTION III. CLASSIFICATION. Sexually oriented businesses are classified as follows: (1) adult arcades; (2) adult bookstores, adult novelty stores, or adult video stores; (3) adult cabarets; (4) adult motels; (5) adult motion picture theaters; (6) adult theaters; (7) escort agencies; (8) semi -nude model studios; and (9) sexual encounter centers. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 9 of 24 SECTION IV. LICENSE REQUIRED. (A) It is unlawful: (1) For any person to operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this ordinance. (2) For any person who operates a sexually oriented business to employ a person to work for the sexually oriented business who is not licensed as a sexually oriented business employee by the City pursuant to this ordinance. (3) For any person to obtain employment with a sexually oriented business without having secured a sexually oriented business employee license pursuant to this ordinance. (B) An application for a license must be made on a form provided by the City. All applicants must be qualified according to the provisions of this ordinance. (C) An applicant for a sexually oriented business license or a sexually oriented business employee license shall file with the Enforcement Officer a completed application made on a form prescribed and provided by the City Treasurer. An application shall be considered complete if it includes the information required in this section. The applicant shall be qualified according to the provisions of this chapter. The application shall be notarized. The application shall include the information called for in Paragraphs 1 through 6 as follows: (1) The full true name and any other names used in the preceding five years. 1. Current business address. (3) Either a set of fingerprints suitable for conducting necessary background checks pursuant to this Chapter or the applicant's Social Security Number to be used for the same purpose . (4) If the application is for a sexually oriented business license, the name, business location, legal description, business mailing address and phone number of the proposed sexually oriented business. (5) Written proof of age, in the form of either (a) a copy of a birth certificate and current photo, (b) current driver's license with picture, or (c) other picture identification document issued by a governmental agency. (6) The issuing jurisdiction and the effective dates of any license or permit held by the applicant relating to a sexually oriented business, whether any such license or permit has been denied, revoked or suspended and, if so, the reason or reasons therefor. (7) If the application is for a sexually oriented business license, the name and address of the statutory agent or other agent authorized to receive service of process. The information provided pursuant to Paragraphs 1 through 7 of this subsection shall be supplemented in writing by certified mail, return receipt requested, to the Enforcement Officer within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete. (D) The application for a sexually oriented business license shall be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 10 of 24 business. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. (E) If a person who wishes to operate a sexually oriented business is an individual, he shall sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, such as a corporation, each officer, director, general partner or other person who will participate directly in decisions relating to management of the business shall sign the application for a license as applicant. Each applicant must be qualified under Section V and each applicant shall be considered a licensee if a license is granted. (F) A person who possesses a valid business license is not exempt from the requirement of obtaining any required sexually oriented business license. A person who operates a sexually oriented business and possesses a business license shall comply with the requirements and provisions of this Chapter, where applicable. (G) The information provided by an applicant in connection with the application for a license under this chapter shall be maintained by the Enforcement Officer on a confidential basis, and may be disclosed only: (1) to other governmental agencies in connection with a law enforcement or public safety function, or (2) as may otherwise be required by law or court order. SECTION V. ISSUANCE OF LICENSE. (A) Upon the filing of a completed application for a sexually oriented business license or a sexually oriented business employee license, the Enforcement Officer shall issue a Temporary License to the applicant, which Temporary License shall expire upon the final decision of the Enforcement Officer to deny or grant the license. Within (20) days after the receipt of a completed application, the Enforcement Officer shall either issue a license or issue a written notice of intent to deny a license to the applicant. The Enforcement Officer shall approve the issuance of a license unless one or more of the following is found to be true: (1) An applicant is less than eighteen (18) years of age. (2) An applicant is delinquent in the payment to the city of taxes, fees, fines, or penalties assessed against or imposed upon the applicant in relation to a sexually oriented business. (3) An applicant has failed to provide information as required by Section IV for issuance of the license. (4) An applicant; a business entity for which the applicant had, at the time of an offense leading to a criminal conviction described herein, a management responsibility or a controlling interest, has been convicted of a specified criminal activity as defined in this chapter. The fact that a conviction is being appealed shall have no effect. (5) The license application fee required by this section has not been paid. (6) An applicant has falsely answered a question or request for information on the application form. (7) The proposed sexually oriented business is located in a zoning district other than a district in which sexually oriented businesses are allowed to operate under the Zoning Ordinance or is not in compliance with the location restrictions established for sexually oriented businesses in the appropriate http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NA1 ION AL FAMILY LEGAL FOUNDATION Page 11 of 24 zoning district(s). (B) An applicant ineligible for a license due to Paragraph (A)(4) of this section may qualify for a sexually oriented business license only when the time period required by the applicable paragraph has elapsed. (C) The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to that applicant, the expiration date, and, if the license is for a sexually oriented business, the address of the sexually oriented business. A sexually oriented business employee license shall contain a photograph of the licensee. The sexually oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. A sexually oriented business employee shall keep the employee's license on his or her person or on the premises where the licensee is then working or performing and shall produce such license for inspection upon request by a law enforcement officer or other authorized city official. SECTION VI. FEES. (A) The nonrefundable initial license fee and annual renewal fee for a sexually oriented business license or a sexually oriented business employee license shall be set by the City Council at an amount determined to be sufficient to pay the cost of administering this program, subject to section (B) herein. (B) In no event shall the fees exceed two hundred fifty dollars ($250.00) for the initial license and one hundred twenty five dollars ($125.00) for the renewal fee for a sexually oriented business license. In no event shall the fees exceed one hundred dollars ($100.00) for the initial license and fifty dollars ($50.00) for the renewal fee for a sexually oriented business employee license. SECTION VII. INSPECTION. (A) An applicant, operator or licensee shall permit law enforcement officers, and any other federal, state, county or city agency in the performance of any function connected with the enforcement of this Chapter, normally and regularly conducted by such agencies, to inspect those portions the premises of a sexually oriented business where patrons or customers are permitted to occupy for the purpose of ensuring compliance with this chapter, at any time the business is occupied or open for business. (B) The provisions of this Section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation. SECTION VIII. EXPIRATION OF LICENSE. (A) Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section IV. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected. (B) When the City denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the City finds that the basis for denial of the renewal license has been corrected or abated, the applicant shall be granted a license if at least ninety (90) days have elapsed since the date denial became final. SECTION IX. SUSPENSION. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 12 of 24 (A) The City shall issue a written intent to suspend a license for a period not to exceed thirty (30) days if it determines that a licensee or an employee of a licensee has: (1) violated or is not in compliance with any section of this ordinance; (2) refused to allow an inspection of the sexually oriented business premises as authorized by this chapter. SECTION X. REVOCATION. (A) The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if a cause of suspension in Section IX occurs and the license has been suspended within the preceeding twelve (12) months. (B) The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if the Officer determines that: (1) a licensee gave false or misleading information in the material submitted during the application process; (2) a licensee has knowingly allowed possession, use, or sale of controlled substances on the premises; (3) a licensee has knowingly allowed prostitution on the premises; (4) a licensee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (5) a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises. This subsection will not apply to an adult motel, unless the licensee knowingly allowed sexual sexual activities to occur either (a) in exchange for money, or (a) in a public place or within public view. (C) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (D) When, after the notice and hearing procedure described in Section XI, the Enforcement Officer revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation becomes effective, provided that, if the conditions of Section XI(B) are met, a Provisional License will be granted pursuant to that section. If, subsequent to revocation, the Enforcement Officer finds that the basis for the revocation found in subsections (B)(1) and (B)(4) of this section has been corrected or abated, the applicant shall be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. SECTION XI. HEARING; LICENSE DENIAL, SUSPENSION, REVOCATION; APPEAL. (A) If the Enforcement Officer determines that facts exist for denial, suspension, or revocation of a license under this chapter, the Enforcement Officer shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including the grounds therefor, by personal delivery, or by certified mail. The notification shall be directed to the most current business address on file with the Enforcement Officer. Within five (10) working days of receipt of such notice, the http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NA 11UNAL FAMILY LEGAL FOUNDATION Page 13 of 24 respondent may provide to the City Manager in writing a response that shall include a statement of reasons why the license or permit should not be denied, suspended, or revoked. Within three (3) days of the receipt of respondent's written response, the City Manager shall notify respondent in writing of the hearing date on respondent's denial, suspension, or revocation proceeding. Within ten (10) working days of the receipt of respondent's written response, the City Manager shall conduct a hearing at which respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. If a response is not received by the City Manager in the time stated or, if after the hearing the City Manager finds that grounds as specified in this resolution exist for denial, suspension, or revocation, then such denial, suspension, or revocation shall become final five (5) days after the City Manager sends, by certified mail, written notice that the license has been denied, suspended, or revoked. Such notice shall include a statement advising the applicant or licensee of the right to appeal such decision to a court of competent jurisdiction. If the City Manager finds that no grounds exist for denial, suspension, or revocation of a license, then within five (5) days after the hearing, the City Manager shall withdraw the intent to deny, suspend, or revoke the license and shall so notify the respondent in writing by certified mail of such action and shall contemporaneously therewith issue the license. (B) When a decision to deny, suspend or revoke a license becomes final, the applicant or licensee (aggrieved party) whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal such action to a court of competent jurisdiction. Upon the filing of any court action to appeal, challenge, restrain or otherwise enjoin the City's enforcement of the denial, suspension, or revocation, the City shall immediately issue the aggrieved party a Provisional License. The Provisional License shall allow the aggrieved party to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee and will expire upon the court's entry of a judgment on the aggrieved party's action to appeal, challenge, restrain or otherwise enjoin the City's enforcement. SECTION XII. TRANSFER OF LICENSE. A licensee shall not transfer his/her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. SECTION XIII. LOCATION OF SEXUALLY ORIENTED BUSINESSES. (A) A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in any zoning district other than , as defined and described in the zoning code. (B) A person commits an offense if the person operates or causes to be operated a sexually oriented business within feet of: (1) A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities; (2) A public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 14 of 24 high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities; school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school; (3) A boundary of a residential district as defined in the zoning code; (4) A public park or recreational area which has been designated for park or recreational activities including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the city which is under the control, operation, or management of the city park and recreation authorities; (5) The property line of a lot devoted to a residential use as defined in the zoning code; (6) An entertainment business which is oriented primarily towards children or family entertainment; or (7) A licensed premises, licensed pursuant to the alcoholic beverage control regulations of the State. (C) A person commits a misdemeanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within feet of another sexually oriented business. (D) A person commits a misdemeanor if that person causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business. (E) For the purpose of subsection B of this Section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in subsection B. Presence of a city, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this Section. (F) For purposes of subsection C of this Section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located. (G) Any sexually oriented business lawfully operating on , 200_, that is in violation of subsection A through F of this Section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended, or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is /are nonconforming. (H) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 15 of 24 license, of a use listed in subsection B of this Section within feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked. SECTION XIV. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS, VIDEOS OR LIVE ENTERTAINMENT IN VIEWING ROOMS. (A) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette, live entertainment, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: (1) Upon application for a sexually oriented license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty -two (32) square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six (6 ") inches. The City may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) The application shall be sworn to be true and correct by the applicant. (3) No alteration in the configuration or location of a manager's station may be made without the prior approval of the City. (4) It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. (5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. (6) It shall be the duty of the licensee to ensure that the view area specified in subsection (5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection (1) of this Section. (7) No viewing room may be occupied by more than one person at any time. http:// www .communitydefense.org/cdcdocs /PCSOB /html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 16 of 24 (8) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5.0) foot - candles as measured at the floor level. (9) It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises. (10) No licensee shall allow openings of any kind to exist between viewing rooms or booths. (11) No person shall make or attempt to make an opening of any kind between viewing booths or rooms. (12) The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist. (13) The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting. (14) The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty eight (48 ") inches of the floor. (B) A person having a duty under Subsection (1) through (14) of Subsection (A) above commits a misdemeanor if he knowingly fails to fulfill that duty. SECTION XV. ADDITIONAL REGULATIONS FOR ESCORT AGENCIES. (A) An escort agency shall not employ any person under the age of 18 years. (B) A person commits an offense if the person acts as an escort or agrees to act as an escort for any person under the age of 18 years. SECTION XVI. ADDITIONAL REGULATIONS CONCERNING PUBLIC NUDITY. (A) It shall be a misdemeanor for a person who knowingly and intentionally, in a sexually oriented business, appears in a state of nudity or engages in specified sexual activities. (B) It shall be a misdemeanor for a person who knowingly or intentionally in a sexually oriented business appears in a semi -nude condition unless the person is an employee who, while semi -nude, shall be at least six (6) feet from any patron or customer and on a stage at least two feet from the floor. (C) It shall be a misdemeanor for an employee, while semi -nude in a sexually oriented business, to receive directly any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity directly to any employee, while said employee is semi -nude in a sexually oriented business. (D) It shall be a misdemeanor for an employee, while semi -nude, to knowingly and intentionally touch a customer or the clothing of a customer. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 17 of 24 SECTION XVII. PROHIBITION AGAINST CHILDREN IN A SEXUALLY ORIENTED BUSINESS. A person commits a misdemeanor if the person knowingly allows a person under the age of 18 years on the premises of a sexually oriented business. SECTION XVIII. HOURS OF OPERATION. No sexually oriented business, except for an adult motel, may remain open at any time between the hours of one o'clock (1:00) A.M. and eight o'clock (8:00) A.M. on weekdays and Saturdays, and one o'clock (1:00) A.M. and noon (12:00) P.M. on Sundays. SECTION XIX. EXEMPTIONS. (A) It is a defense to prosecution under Section XVII that a person appearing in a state of nudity did so in a modeling class operated: (1) by a proprietary school, licensed by the State of ; a college, junior college, or university supported entirely or partly by taxation; (2) by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or (3) in a structure: (a) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (b) where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and (c) where no more than one nude model is on the premises at any one time. SECTION XX. INJUNCTION. • A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section XII of this ordinance is subject to a suit for injunction as well as prosecution for criminal violations. Such violations shall be punishable by a fine of $200.00 or thirty (30) days imprisonment. Each day a sexually oriented business so operates is a separate offense or violation. SECTION XXI. SEVERABILITY. Each section and provision of this ordinance are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said chapter, or the application thereof to any http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 18 of 24 person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. SECTION XXII. CONFLICTING ORDINANCES REPEALED. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. SECTION XXIII. EFFECTIVE DATE. This ordinance shall be enforced from and after , 200_. MEMORANDUM OF LAW SUPPORTING SAMPLE COMPREHENSIVE SOB ORDINANCE DISCLAIMER As noted in Footnote 1, the Sample Ordinance, because of its comprehensive nature, necessarily contains regulatory provisions that will not work in each jurisdiction. Courts have applied a myriad of nuances to the analysis of adult business restrictions, and each local ordinance requires jurisdiction - specific research and drafting. The purpose of this memorandum is to provide the general legal basis for the provisions found in the sample ordinance. It is a brief outline of the law, not an exhaustive treatise. The ordinance is a "time, place, and manner regulation." As such, it is "content neutral" and focuses on the negative secondary consequences or harmful effects of sexually oriented businesses. For a full discussion of adult business regulations, please consult CDC's legal manual, available online at www.conununitydefense.or /g legalmanual.cfm. INTRODUCTION There are five U.S. Supreme Court decisions which every practitioner should read before drafting a local ordinance regulating adult businesses: Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); FW /PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); and City of Erie v. Pap's A.M., 120 S. Ct. 1382. In Young, the Supreme Court upheld the constitutionality of a Detroit zoning ordinance regulating the location of "adult" theatres by prohibiting them from locating within 1000 feet of any two other regulated uses or within 500 feet of a residential area. A plurality of the Court found that the Detroit ordinance did not violate the First Amendment as an impermissible prior restraint, and that the ordinance was based on a substantial governmental interest. In Renton, the Supreme Court again upheld the constitutionality of a city's zoning ordinance against a http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfin 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 19 of 24 First Amendment challenge. The challenged ordinance was designed to regulate adult uses by prohibiting them from locating within 1000 feet of any residential zone, single- or multiple - family dwelling, church, park or school. Because the ordinance did not prohibit these uses altogether, the Court analyzed the city's ordinance as a form of time, place and manner regulation. "[C]ontent- neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternate avenues of communication." 475 U.S. at 47. This ordinance, the Court stated, was aimed at the secondary effects of adult uses, and not at the content of the films shown, and was clearly based on a substantial interest in preventing crime, protecting retail trade, and maintaining property values. The ordinance was also narrowly tailored to "affect only that category of theaters shown to produce the unwanted secondary effects." Id. at 52. Further, the Court found that the ordinance allowed for reasonable alternative avenues of communication because it left 520 acres or more than 5 percent of the entire land area of Renton available for adult uses. "In our view, the First Amendment requires that Renton refrain from effectively denying Respondents a reasonable opportunity to open and operate an adult theater within the city." Id. at 54. The ordinance contains not only zoning regulations, but also licensing requirements, regulations dealing with "peep booths or arcades," hours of operation restrictions, and other miscellaneous regulations directed at neutralizing the negative secondary effects of sexually oriented businesses. Subsequent cases to Young and Renton have analyzed these additional regulations, over and above zoning regulations, pursuant to the same time, place and manner analysis that is found in Renton. Using this analysis, these additional regulations have consistently been upheld against constitutional challenge. DISCUSSION The following is a review and discussion of important provisions found within the ordinance: (1) Legislative Findings. The preamble and purpose sections of the ordinance are lengthy and detailed. Unlike other ordinances, courts frequently look at the purported purpose, legislative findings, and intent behind a sexually oriented business ordinance to determine whether it is indeed content neutral or if it is simply a pretext for attempting to eliminate or suppress adult uses. Therefore, the legislative body must make specific findings supporting the need for the ordinance and demonstrating that the ordinance is content neutral and directed at the negative secondary effects of adult businesses rather than the sexually explicit nature of the materials or performances offered within. A city must establish that its sexually oriented business zoning and licensing ordinances are reasonable, i.e., that there is a need for them. It may conduct studies regarding its own experience with sexually oriented businesses. But not every city has the resources to conduct its own studies. After Renton, it is not necessary for a city to conduct its own studies. It may rely on the experiences and studies of other cities. 475 U.S. at 50. To determine whether an ordinance is reasonable, a court must look to the legislative record. There must be evidence in the record to support the ordinance. Fortunately, as the ordinance demonstrates, there is significant and sufficient evidence on which a legislature may rely to prove the reasonableness of an adult business ordinance like this one. Thus, a city council may obtain studies or reports conducted by other cities and rely on them in enacting the ordinance. Many such studies are available and may be obtained from planning directors of those cities, or from the CDC Law Library, located at www. co mmunitydefense .org/seffects.cfm. Renton held that a city need not show that a particular sex business causes the identified harmful http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 20 of 24 secondary consequences. There was no showing that any particular use in Renton caused the secondary consequences sought to be prevented. Again, a city or legislature may rely on the experiences of other communities. (2) Definitions. The definitions used in this ordinance are generally adopted from Young, Renton, and FW /PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). Rather than to arbitrarily attempt to set a percentage of use such as floor area, stock and trade, or gross revenues to define a sexually oriented business, a more flexible approach has been approved by the Supreme Court. Language upheld by the Supreme Court in Young was: "a substantial or significant portion of its stock in trade "; in Renton, "distinguished or characterized by an emphasis on matter depicting, describing, or relating to [sex]." See also People v. Superior Court, 259 Cal.Rep. 740 (1989), "one of its principle business purposes ". Challenges to time, place, and manner regulations are frequently made on grounds that the language in such laws is unconstitutionally vague. A majority of such challenges have been rejected. Because zoning must apply to property uses which by nature are dynamic and changeable, you cannot define regulated uses with absolutely scientific precision. The definitions used in this ordinance have been upheld against vagueness challenges, although practitioners should research the law in their own jurisdictions before implementing its provisions. (3) Licensing. This Ordinance provides for licensing of both the sexually oriented business and employees within. Licensing of the sexually oriented business is important to keep track of various adult uses regulated under the zoning provisions and also to help document the negative secondary effects of these uses. Licensing of both sexually oriented businesses and their employees is important to provide for accountability -- i.e., who is responsible for what takes place on the premises, who truly owns the establishment, and what is the background of workers and employees. However, drafting an effective licensing scheme is a fairly complicated task and requires precise drafting to avoid constitutional infirmities. The Supreme Court has stated that cities can have special licensing schemes for different kinds of speech activities: "Of course, the city may even have special licensing procedures for conduct commonly associated with expression ." City of Lakewood v. Plain Deals Publishing Co., 486 U.S. 750, 760 (1988) (in the context of newsrack regulation). Licensing schemes are routinely challenged on prior restraint grounds. In FW /PBS, the Court found that a licensing requirement was a prior restraint and that certain safeguards were necessary to avoid constitutional problems: (1) "the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained," and (2) "there must be the possibility of prompt judicial review in the event that the license is erroneously denied." 493 U.S. at 228. A licensing scheme must establish clear guidelines limiting the discretion of the issuer to ensure that protected speech is not suppressed. Further, those guidelines and the information required from applicants must be reasonably related to the license's purpose. See, for example, Broadway Books, Inc. v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); and Kev, Inc. v. Kitsap, Co., 793 F.2d 1053 (9th Cir. 1986) (upholding licensing requirements); but see Schultz v. City of Cumberland, 2000 U.S. App. LEXIS 23773 (7 Cir. 2000) (upholding some disclosure requirements but invalidating others). The plurality opinion in FW /PBS failed to define what is required to satisfy "prompt judicial review" under a content neutral licensing scheme of sexually oriented businesses. The Fourth, Sixth, and Ninth Circuits have held that a prompt judicial determination from a court of law must be assured, whereas the http:// www. communitydefense. org/ cdcdocs /PCSOB/html /appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 21 of 24 First, Fifth, Seventh, and Eleventh Circuits have held that for licensing ordinances, "prompt judicial review" means access to prompt judicial review. See Jews for Jesus v. Massachusetts Bay Transportation Authority, 984 F.2d 1319 (1 Cir. 1993); TK's Video v. Denton County, 24 F.3d 705 (5 Cir. 1994); Graff v. City of Chicago, 9 F.3d 1309 (7 Cir. 1993); but see, 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988 (4 Cir. 1995); East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6 Cir. 1995). On June 19, 2000 the Supreme Court granted certiorari in a case that will likely answer the prompt judicial review question and resolve the split in the circuits. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93 (Wisc. Ct. App. 1999), cert. granted, 68 U.S.L.W. 3773 (June 19, 2000) (No. 99- 1680). (4) Fees. Licensing fees to cover the cost of issuing and enforcing regulations are permissible, as long as the fee is "revenue neutral." Cox v. New Hampshire, 312 U.S. 569 (1941). As long as the fee only recoups the government's costs in providing a service and conducting any investigations and is not a tax imposed on the exercise ofonstitutional right, it is constitutional. The amount of the various fees is determined on a city -by -city basis and needs to be related to the expenses (i.e., administrative costs, inspection expenses, law enforcement resources, etc.) incurred. But a city need not show precisely its costs of administration, World Wide Video, Inc. v. Tukwila, 816 P.2d 18 (1991), and the burden is on the challenger to show that the fee is excessive. Adult Ent. Ctr., Inc. v. Pierce Co., 788 P. 2d 1102, 1108 (1990). (5) Zoning. The ordinance regulates the location of sexually oriented businesses by dispersing them from each other and from other sensitive uses (residential area, parks, schools, churches, etc.) and limiting them to one or more specified zoning districts. Scatter zoning was specifically approved of in Renton, and Young employed both setbacks and dispersal features within commercial zones. 427 U.S. at 62. "Cities may regulate adult theatres by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. `It is not our function to appraise the wisdom of [the city's] decision to require adult theatres to be separated rather than concentrated in the same areas ... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems'." Renton, 475 U.S. at 52. The zone (or zones) that a sexually oriented business is to be limited to, and the amount of distance between an adult business and other adult businesses or other sensitive uses, need to be determined by each individual community based on its size (both geographic and population), number of sexually oriented businesses presently existing, and the configuration of its present ,zoning scheme. The locational restrictions will be constitutional so long as they allow for "reasonable alternative avenues of communication ". Id. at 47. Since Renton, various courts have upheld percentages below Renton's 5 percent as reasonable. See S & G News, Inc. v. City of Southgate, 638 F. Supp. 1060 (E.D. Mich. 1986) (2.3 percent of the total land area of the County) and Function Junction, Inc. v. City of Dayton Beach, 507 F. Supp. 544, 552 (M.D. Fla. 1987) ("12 locations in Daytona Beach ... potentially could accommodate plaintiffs' [adult use] lounges. ") The Fifth Circuit in Lakeland Lounge v. City of Jackson, 973 F. 2d 1255 (1992), found reasonable a City of Jackson ordinance which provided for four areas with 8 to 10 locations which were "available and suitable" -- approximately 1.2 percent of the City's land mass. http:// www .communitydefense.org/cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 22 of 24 (6) Amortization. One of the most important elements of "adult" use zoning ordinances is a requirement that all nonconforming uses come into compliance within a specified period of time. A majority of the states, and the U.S. Constitution, permit an ordinance to terminate pre- existing adult uses which conflict with the locational or other provisions of an adult use zoning ordinance. Over a relatively brief period of time, all nonconforming sexually oriented businesses are eliminated under such a requirement. In states which allow amortization, pre- existing adult use status does not guarantee a permanent right to continue such property use when it contravenes the requirements of an ordinance. Amortization clauses are upheld if the time frame is reasonable. See Hart Bookstores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979) (upheld ordinance providing a six -month amortization period for pre- existing, nonconforming adult uses); Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153 (1978) (upheld ordinance providing a 90 -day amortization period for pre- existing, nonconforming sex theaters); Castner v. City of Oakland, 180 Cal. Rptr. 682 (1982) (upheld ordinance regulating adult entertainment activity providing a one -year amortization period under which owner can apply for up to a two -year extension); City of Vallejo v. Adult Books, 219 Cal. Rptr. 143 (1985) (upheld ordinance regulating adult bookstores and theaters providing a one -year amortization period under which owners could apply for an extra year if they could show extreme hardship); Cook County v. Renaissance Arcade, 522 N.E. 2d 73 (Ill. 1988) (upheld ordinance providing a six-month amortization period under which an additional six months is given to any business which applies), and SDJ, Inc. v. City of Houston, 636 F. Supp. 1359 (S.D. Tex. 1986), affd. 841 F.2d 107 (5th Cir. 1988) (upheld six -month amortization of sexually oriented businesses). The amortization period provided for in the ordinance is one year. This one year period can be shortened or lengthened depending on the case law in your jurisdiction and the factual situation existing in your community, i.e., how many nonconforming sex uses already exist, how much do they have invested in their present location, etc. Another common approach includes setting forth a specific period with the option of an additional period if a hardship is demonstrated. Amortization provisions contained in sexually oriented business zoning ordinances are constitutionally permissible so long as they are content neutral and satisfy the requirements of Renton and Young, that being, they must be "reasonable" and not "arbitrary and capricious." As noted, the state constitution must allow for amortization generally. (7) Arcade .Areas. The ordinance includes additional regulations pertaining to so- called "peep show" booths. Ordinances regulating the interior configuration of sexually oriented businesses, more particularly "peep show" booths, are routinely upheld against constitutional attack. However, it is essential that a city council have before it some evidence (not necessarily as to its own experience, but in "peep show "" booths generally based on others' experiences) of the sexual activities occurring within the "peep show" booths. These reports should set forth information about sexual activity, such as anonymous sex between patrons using "glory holes," masturbation, and other illicit activities. The Supreme Court described the activity which occurred within "peep show" booths in Arcara v. Cloud Books, Inc., 478 U.S. 697, 699 (1986): "The court reported evidence that such a booth was used for `masturbation, fondling, and fellatio by patrons on the premises of the store ... "'. With such evidence or documentation, the ordinance will rest upon a reasonable basis, and not be considered arbitrary or capricious. The following cases have upheld interior configuration requirements substantially identical or similar to the model language contained herein, which provides for open booths with direct line of sight from a manager's station: Wall Distributors, Inc. v. City of Newport News, Virginia, 782 F. 2d 1165 (4th Cir. 1986); Ellwest Stereo Theatres, Inc. v. Weiner, 681 F. 2d 1243 (9th Cir. 1982); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991). http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfm 4/29/2002 NA1IUNAL FAMILY LEUAL FOUNDATION Page 23 of 24 (8) Public Nudity. In 1991, the Supreme Court settled the question of whether communities can ban public nude dancing in establishments not licensed to sell liquor, and without the added regulatory power of the 21st Amendment. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 115 L.Ed. 2d 504, the Supreme Court upheld the use of Indiana's public indecency law to prohibit nudity in a public place, including an "adults only" sexually oriented business. The Barnes Court emphasized that the Indiana law was not aimed at the suppression of free expression, but was a content neutral prohibition of certain conduct: "The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity." Id. at 514. The Court found that Indiana's statute was not directed at nude dancing or its potential expressive elements; rather, the State sought to prohibit public nudity across the board. In City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000), the Supreme Court reaffirmed its holding in Barnes and further concluded that attacks on the individual motives of legislators who voted for a nudity ban are constitutionally irrelevant: "As we have said before, however, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive." Id. at 1392 -93. For a more complete discussion of the Pap's case, please see "City of Erie v. Pap's A.M. and the Future of Sexually Oriented Business Regulation," by Scott D. Bergthold, Municipal Lawyer, Sept. /Oct. 2000, pp. 6 -9. Section XVI prohibits total nudity in a sexually oriented business, pursuant to Barnes and Pap's. Also, in Subsection B, the ordinance requires that individuals appearing in a "semi -nude condition" must be at least 6 feet from any patron or customer and on a stage at least two feet from the floor, and that a semi- nude employee may not solicit or be paid a gratuity, or touch a patron. Similar regulations were approved in KEV, Inc. v. Kitsap County, 793 F. 2d 1053 (9th Cir. 1986), Hang On, Inc. v. City 01 Arlington, 65 F.3d 1248 (5th Cir. 1995), and DLS, Inc. v. City of Chattanooga, 123 F.3d 420 (6th Cir. 1997). (9) Hours of Operation. The Ordinance's zoning provisions are "place" regulations. The licensing and interior configuration requirements are "manner" regulations. Section XVIII is a "time" regulation. Numerous courts have upheld hours of operation restrictions on sexually oriented businesses, which are valid if they are narrowly tailored to advance a substantial government interest, such as the prevention of crime and disturbances during the overnight hours. See e.g., Mitchell v. Commission on Adult Entertainment, 10 F. 3d 123 (3d Cir. 1993); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5 Cir. 1986); Ben Rich Trading, Inc. v. City of Vineland, 126 F.3d 155 (3d Cir. 1997); National Amusements v. Town of Dedham, 43 F.3d 731 (1 Cir. 1995); Richland Bookman, Inc. v. Nichols, 137 F.3d 435 (6th 1998); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7 Cir. 1999); Lady Lingerie v. City of Jacksonville, 176 F.3d 1358 (11 Cir. 1999); L.J. Concepts, Inc. v. City of Phoenix, No. 99- 17270/17271 (9 Cir. 2000) (unpublished opinion). However, a community should take care to avoid possible preemption problems for those sexually oriented businesses that hold liquor licenses and whose hours may already be controlled by state law. See e.g., J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp.2d 1032 (N.D. Ohio 1999) (determining that local closing hours are preempted by state law). CONCLUSION This memorandum of law is not an exhaustive treatment of sexually oriented business and First Amendment law, but rather an overview to demonstrate support for the various provisions found within this sample ordinance. Because state and local laws vary, please consult with a local attorney before http:// www. communitydefense. org/ cdcdocs /PCSOB/htmllappendixa.cfm 4/29/2002 NATIONAL FAMILY LEGAL FOUNDATION Page 24 of 24 implementing this ordinance. For further details and assistance, please contact Community Defense Counsel at 480 - 922 -9731 or contact us online at www.communitydefense.org. http:// www. communitydefense. org/ cdcdocs /PCSOB/html/appendixa.cfin 4/29/2002 APPENDIX B CASES TO READ United States v. O'Brien, 391 U.S. 367 (1968) Young v. American Mini - Theatres, Inc., 427 U.S.50 (1976) City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) FW /PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) City of Erie v. Pap's A.M., 529 U.S. 277 (2000) Alameda Books, Inc. v. City of Los Angeles, 122 S. Ct. 1728; 2002 U.S. LEXIS 3424(2002) (attached) .: Page Page CITY OF LOS ANGELES, PETITIONER v. ALAMEDA BOOKS, INC., ET AL. 00 -799 SUPREME COURT OF THE UNITED STATES 122 S. Ct. 1728; 2002 U.S. LEXIS 3424; 70 U.S.L.W. 4369; 15 Fla. L. Weekly Fed. S 267 December 4, 2001, Argued May 13, 2002, Decided .(**1). The Ninth Circuit affirmed on the different ground that, even if the ordinance were content neutral, the The LEXIS pagination of this document is subject to city failed to present evidence upon which it could change pending release of the final published version. reasonably rely to demonstrate that its regulation of PRIOR HISTORY: ON WRIT OF CERTIORARI multiple -use establishments was designed to serve its TO THE UNITED STATES COURT OF APPEALS substantial interest in reducing crime. The court FOR THE NINTH CIRCUIT. therefore held the ordinance invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41, 723 -724. DISPOSITION: 222 F.3d 719, reversed and remanded. Held: The judgment is reversed, and the case is SYLLABUS: Based on its 1977 study concluding that remanded. 222 F.3d 719, reversed and remanded. concentrations of adult entertainment establishments JUSTICE O'CONNOR, joined by THE CHIEF are associated with higher crime rates in surrounding JUSTICE, JUSTICE SCALIA, and JUSTICE communities, petitioner city enacted an ordinance THOMAS, concluded that Los Angeles may prohibiting such enterprises within 1,000 feet of each reasonably rely on its 1977 study to demonstrate that other or within 500 feet of a religious institution, its present ban on multiple -use adult establishments school, or public park. Los Angeles Municipal Code § serves its interest in reducing crime. Pp. 5 -15. 12.70(C) (1978). Because the ordinance's method of (a) The 1977 study's central component is a Los calculating distances created a loophole permitting the Angeles Police Department report indicating that, from concentration of multiple adult enterprises in a single 1965 to 1975, crime rates for, e.g., robbery and structure, the city later amended the ordinance to prohibit "more than one adult entertainment business in prostitution grew much faster in Hollywood, which had the same building." § 12.70(C) (1983). Respondents, the city's largest concentration of adult establishments, two adult establishments that openly operate combined than in the city as a whole. The city may reasonably rely on the police department's conclusions regarding bookstores /video arcades in violation of § 12.70(C), as crime patterns to overcome summary judgment. In amended, sued under 42 U. S. C. § 1983 for finding to the contrary on the ground that the 1977 declaratory and injunctive relief, alleging that the study focused on the effect on crime rates of a ordinance, on its face, violates the First Amendment. Finding that the ordinance was not a content-neutral concentration of establishments- -not a concentration of regulation of speech, the District Court reasoned that operations within a single establishment- -the Ninth neither the 1977 study nor a report cited in Hart Book Circuit misunderstood the study s implications. While Stores v. Edmisten, a Fourth Circuit case upholding a the study reveals that areas with high concentrations of similar statute, supported a reasonable belief that adult establishments are associated with high crime multiple-use adult establishments rates, such areas are also areas with high multi p produce the concentrations of adult operations, albeit each in secondary effects the city asserted as content - neutral separate establishments. It was therefore consistent justifications for its prohibition. Subjecting § 12.70(C) with the 1977 study's findings, and thus reasonable, for to strict scrutiny, the court granted respondents summary judgment because it felt the city had not the city to infer that reducing the concentration of adult offered evidence demonstrating that its prohibition was operations in a neighborhood, whether within separate necessary to serve a compelling government interest. establishments or in one large establishment, will 4 reduce crime rates. Neither the Ninth Circuit nor associated with adult businesses by exercising its respondents nor the dissent provides any reason to zoning power, and at the same time leave the quantity question the city's theory. If this Court were to accept and accessibility of speech substantially undiminished, their view, it would effectively require that the city there is no First Amendment objection, even if the provide evidence that not only supports the claim that measure identifies the problem outside the its ordinance serves an important government interest, establishments by reference to the speech inside - -that but also does not provide support for any other is, even if the measure is content based. On the other approach to serve that interest. Renton specifically hand, a city may not regulate the secondary effects of refused to set such a high bar for municipalities that speech by suppressing the speech itself. For example, it want to address merely the secondary effects of may not impose a content -based fee or tax, see protected speech. The Court there held that a Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. municipality may rely on any evidence that is 221, 230, even if the government purports to justify the "reasonably believed to be relevant" for demonstrating fee by reference to secondary effects, see Forsyth a connection between speech and a substantial, County v. Nationalist Movement, 505 U.S. 123, 134 - independent government interest. 475 U.S. at 51 -52. 135. That the ordinance at issue is more a typical land - This is not to say that a municipality can get away with use restriction than a law suppressing speech is shoddy data or reasoning. The municipality's evidence suggested by the fact that it is not limited to expressive must fairly support its rationale for its ordinance. If activities, but extends, e.g., to massage parlors, which plaintiffs fail to cast direct doubt on this rationale, the city has found to cause the same undesirable either by demonstrating that the municipality's secondary effects; also, it is just one part of an evidence does not support its rationale or by fumishing elaborate web of land -use regulations intended to evidence that disputes the municipality's factual promote the social value of the land as a whole without findings, the municipality meets the Renton standard. If suppressing some activities or favoring others. Thus, plaintiffs succeed in casting doubt on a municipality's the ordinance is not so suspect that it must be subjected rationale in either manner, the burden shifts back to the to the strict scrutiny that content -based laws demand in municipality to supplement the record with evidence other instances. Rather, it calls for intermediate renewing support for a theory that justifies its scrutiny, as Renton held. Pp. 2 -5. ordinance. See, e.g., Erie v. Pap's A. M., 529 U.S. (b) Renton's description of an ordinance similar to Los 277, 298. This case is at a very early stage in this Angeles' as "content neutral," 475 U.S. at 48, was process. It arrives on a summary judgment motion by something of a fiction. These ordinances are content respondents defended only by complaints that the 1977 based, and should be so described. Nevertheless, study fails to prove that the city's justification for its Renton's central holding is sound. Pp. 5 -6. ordinance is necessarily correct. Therefore, it must be concluded that the city, at this stage of the litigation, (c) The necessary rationale for applying intermediate has complied with Renton's evidentiary requirement. scrutiny is the promise that zoning ordinances like the Pp. 5 -14. one at issue may reduce the costs of secondary effects (b) The Court need not resolve the parties' dispute without substantially reducing speech. If two adult over whether the city can rely on evidence from Hart businesses are under the same roof, an ordinance requiring them to separate will have one of two results: Book Stores to overcome summary judgment, nor respondents' alternative argument that the ordinance is One business will either move elsewhere or close. The not a time, place, and manner regulation, but is city's premise cannot be the latter. The premise must be that businesses- -even those that have always been effectively a ban on adult video arcades that must be under one roof- -will for the most part disperse rather subjected to strict scrutiny. Pp. 14 -15. than shut down, that the quantity of speech will be JUSTICE KENNEDY concluded that this Court's substantially undiminished, and that total secondary precedents may allow Los Angeles to impose its effects will be significantly reduced. As to whether regulation in the exercise of the zoning authority, and there is sufficient evidence to support this proposition, that the city is not, at least, to be foreclosed by the Court has consistently held that a city must have summary judgment. Pp. 1 -10. latitude to experiment, at least at the outset, and that (a) Under Renton v. Playtime Theatres, Inc., 475 very little evidence is required. See, e.g., Renton, U.S. 41, if a city can decrease the crime and blight supra, at 51 -52. Here, the proposition to be shown is supported by common experience and a study showing 5 a correlation between the concentration of adult interpreting that case. 222 F.3d 719, 723 -728 (2000). establishments and crime. Assuming that the study We reverse and remand. The city of Los Angeles may supports the city's original dispersal ordinance, most of reasonably rely on a study it conducted some years the necessary analysis follows. To justify the ordinance before enacting the present version of § 12.70(C) to at issue, the city may infer- -from its study and from its demonstrate that its ban on multiple -use adult own experience —that two adult businesses under the establishments serves its interest in reducing crime. same roof are no better than two next door, and that knocking down the wall between the two would not ameliorate any undesirable secondary effects of their In 1977, the city of Los Angeles conducted a proximity to one another. If the city's first ordinance comprehensive study of adult establishments and was justified, therefore, then the second is too. Pp. 6- concluded that concentrations of adult businesses are 10. associated with higher rates of prostitution, robbery, (d) Because these considerations seem well enough assaults, and thefts in surrounding communities. See App. 35 -162 (Los Angeles Dept. of City Planning, established in common experience and the Court's case Study of the Effects of the Concentration of Adult law, the ordinance survives summary judgment. P. 10. Entertainment Establishments in the City of Los JUDGES: O'CONNOR, J., announced the judgment of Angeles (City Plan Case No. 26475, City Council File the Court and delivered an opinion, in which No. 74- 4521 -S.3, June 1977)). Accordingly, the city REHNQUIST, C. J., and SCALIA and THOMAS, JJ., enacted an ordinance prohibiting the establishment, joined. SCALIA, J., filed a concurring opinion. substantial enlargement, or transfer { * *12} of KENNEDY, J., filed an opinion concurring in the ownership of an adult arcade, bookstore, cabaret, judgment. SOUTER, J., filed a dissenting opinion, in motel, theater, or massage parlor or a place for sexual which STEVENS and GINSBURG, JJ., joined, and in encounters within 1,000 feet of another such enterprise which BREYER, J., joined as to Part II. or within 500 feet of any religious institution, school, OPINIONBY• O'CONNOR or public park. See Los Angeles Municipal Code § • 12.70(C) (1978). OPINION: JUSTICE O'CONNOR announced the There is evidence that the intent of the city council judgment of the { * *10} Court and delivered an when enacting this prohibition was not only to disperse opinion, in which THE CHIEF JUSTICE, JUSTICE distinct adult establishments housed in separate SCALIA, and JUSTICE THOMAS join. buildings, but also to disperse distinct adult businesses Los Angeles Municipal Code § 12.70(C) (1983), as operated under common ownership and housed in a amended, prohibits "the establishment or maintenance single structure. See App. 29 (Los Angeles Dept. of of more than one adult entertainment business in the City Planning, Amendment -- Proposed Ordinance to same building, structure or portion thereof." Prohibit the Establishment of More than One Adult Respondents, two adult establishments that each Entertainment Business at a Single Location (City Plan operated an adult bookstore and an adult video arcade Case No. 26475, City Council File No. 82 -0155, Jan. in the same building, filed a suit under Rev. Stat. § 13, 1983)). The ordinance the city enacted, however, 1979, 42 U.S.C. § 1983 (1994 ed., Supp. V), alleging directed that "the distance between any two adult that § 12.70(C) violates the First Amendment and entertainment businesses shall be measured in a seeking declaratory and injunctive relief. The District straight line ... from the closest exterior structural wall Court granted summary judgment to respondents, of each business." Los Angeles Municipal Code § fmding that the city of Los Angeles' prohibition was a 12.70(D) (1978). Subsequent to enactment, the city content -based regulation of speech that failed strict realized that this method of calculating distances scrutiny. The Court of Appeals for the Ninth Circuit created a loophole permitting { * *13} the affirmed, but on different grounds. It held that, even if concentration of multiple adult enterprises in a single § 12.70(C) were a content - neutral regulation, the city structure. failed to demonstrate that the prohibition was designed Concerned that allowing an adult - oriented department to serve a substantial government interest. Specifically, store to replace a strip of adult establishments could the Court of Appeals found that the city failed to defeat the goal of the original ordinance, the city present evidence upon which it could reasonably rely to demonstrate { * *11} a link between multiple -use council amended § 12.70(C) by adding a prohibition on adult establishments and negative secondary effects. "the establishment or maintenance of more than one Therefore, the Court of Appeals held the Los Angeles adult entertainment business in the same building, prohibition on such establishments invalid under structure or portion thereof." Los Angeles Municipal Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Code § 12.70(C) (1983). The amended ordinance Ed. 2d 29 106 S. Ct. 925 198 defines an "Adult Entertainment Business" as an adult ( 6), and its precedents arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters, and notes that The District Court for the Central District of each of these enterprises "shall constitute a separate California initially denied both motions on the First adult entertainment business even if operated in Amendment issues in count I, concluding that there conjunction with another adult entertainment business was "a genuine issue of fact whether the operation of a at the same establishment." § 12.70(B)(17). The combination video rental and video viewing business ordinance uses the term "business" to refer to certain leads to the harmful secondary effects associated with types of goods or services sold in adult establishments, a concentration of separate businesses in a single urban rather than the establishment itself. Relevant for area." App. 255. After respondents filed a motion for purposes of this case are also the ordinance's reconsideration, however, the District Court found that definitions of adult bookstores and arcades. An "Adult Los Angeles' prohibition on { * *16} multiple -use adult Bookstore" is an operation that "has as a substantial establishments was not a content - neutral regulation of portion of its stock -in -trade { * *14} and offers for speech. App, to Pet. for Cert. 51. It reasoned that the sale" printed matter and videocassettes that emphasize neither the city's 1977 study nor a retort cited in Hart the depiction of specified sexual activities. § Book Stores v. Edmisten, 612 F.2d 821 (CA4 1979) 12.70(B)(2)(a). An adult arcade is an operation where, (upholding a North Carolina statute that also banned "for any form of consideration," five or fewer patrons multiple -use adult establishments), supported a together may view films or videocassettes that reasonable belief that multiple -use adult establishments emphasize the depiction of specified sexual activities. produced the secondary effects the city asserted as § 12.70(B)(1). content - neutral justifications for its prohibition. App. Respondents, Alameda Books, Inc., and Highland to Pet. for Cert. 34-47. Therefore, the District Court Books, Inc., are two adult establishments operating in proceeded to subject the Los Angeles ordinance to Los Angeles. Neither is located within 1,000 feet of strict scrutiny. Because it felt that the city did not offer another adult establishment or 500 feet of any religious evidence to demonstrate that its prohibition is institution, public park, or school. Each establishment necessary to serve a compelling government interest, occupies less than 3,000 square feet. Both respondents the District Court granted summary judgment for rent and sell sexually oriented products, including respondents and issued a permanent injunction videocassettes. Additionally, both provide booths enjoining the enforcement of the ordinance against where patrons can view videocassettes for a fee. respondents. Id., at 51. Although respondents are located in different The Court of Appeals for the Ninth Circuit affirmed, buildings, each operates its retail sales and rental although on different grounds. The Court of Appeals operations in the same commercial space in which its determined that it did not have to reach the District video booths are located. There are no physical distinctions between the different operations within Court's decision that the Los Angeles ordinance was each establishment and each establishment has only content based because, {**17} even if the ordinance one entrance. 222 F.3d 719 at 721. Respondents were content neutral, the city failed to present evidence concede they are { * *15} openly operating in violation upon which it could reasonably rely to demonstrate of § 12.70(C) of the city's Code, as amended. Brief for that its regulation 1 of multiple -use establishments is Respondents 7; Brief for Petitioner 9. "designed to serve" the city's substantial interest in reducing crime. The challenged ordinance was After a city building inspector found in 1995 that therefore invalid under Renton, 475 U.S. 41. 222 F.3d Alameda gooks, Inc., was operating both as an adult at 723 -724. We granted certiorari, 532 U.S. 902 bookstore and an adult arcade in violation of the city's (2001), to clarify the standard for determining whether adult zoning regulations, respondents joined as an ordinance serves a substantial government interest plaintiffs and sued under 42 U.S.C. § 1983 for under Renton, supra. declaratory and injunctive relief to prevent II enforcement of the ordinance. 222 F.3d at 721. At issue in this case is count I of the complaint, which In Renton v. Playtime Theatres, Inc., supra, this alleges a facial violation of the First Amendment. Both Court considered the validity of a municipal ordinance the city and respondents filed crossmotions for that prohibited any adult movie theater from locating summary judgment. within 1,000 feet of any residential zone, family dwelling, church, park, or school. Our analysis of the ordinance proceeded in three steps. First, we found that 7 the ordinance did not ban adult theaters altogether, but upheld a North Carolina statute similar to the Los merely required that they be distanced from certain Angeles ordinance challenged in this case. 612 F.2d sensitive locations. The ordinance was properly 821. analyzed, therefore, as a time, place, and manner The central of the 1977 study component regulation. Id at 46. We next considered whether the p y is a report on ordinance was content { * *18} neutral or content city crime patterns provided by the Los Angeles Police based. If the regulation were content based, it would be Department. That report indicated that, during the considered presumptively invalid and subject to strict period from 1965 to 1975, certain crime rates grew scrutiny. Simon & Schuster, Inc. v. Members of N. Y. much faster in Hollywood, which had the largest State Crime Victims Bd., 502 U.S. 105, 115, 118, 116 concentration of adult establishments in the city, than L. Ed. 2d 476, 112 S. Ct. 501 (1991); Arkansas in the city of Los Angeles as a whole. For example, Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230- robberies increased 3 times faster and prostitution 15 231, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987). We times faster in Hollywood than citywide. App. 124 held, however, that the Renton ordinance was aimed 125. not at the content of the films shown at adult theaters, The 1977 study also contains reports conducted but rather at the secondary effects of such theaters on directly by the staff of the Los Angeles Planning the surrounding community, namely at crime rates, Department that examine the relationship between property values, and the quality of the city's adult establishments and property values. These staff neighborhoods. Therefore, the ordinance was deemed reports, however, are inconclusive. Not surprisingly, content neutral. Renton, supra, at 47-49. Finally, the parties focus their dispute before this Court on the given this finding, we stated that the ordinance would report by the Los Angeles Police Department. { * *21 } be upheld so long as the city of Renton showed that its Because we find that reducing crime is a substantial ordinance was designed to serve a substantial govemment interest and that the police department government interest and that reasonable alternative report's conclusions regarding crime patterns may avenues of communication remained available. 475 reasonably be relied upon to overcome summary U.S. at 50. We concluded that Renton had met this judgment against the city, we also focus on the portion burden, and we upheld its ordinance. Id., at 51 -54. of the 1977 study drawn from the police department The Court of Appeals applied the same analysis to report. evaluate the Los Angeles ordinance { * *19} The Court of Appeals found that the 1977 study did challenged in this case. First, the Court of Appeals not reasonably support the inference that a found that the Los Angeles ordinance was not a concentration of adult operations within a single adult complete ban on adult entertainment establishments, establishment produced greater levels of criminal but rather a sort of adult zoning regulation, which activity because the study focused on the effect that a Renton considered a time, place, and manner concentration of establishments —not a concentration of regulation. 222 F.3d at 723. The Court of Appeals operations within a single establishment- -had on crime turned to the second step of the Renton analysis, but rates. The Court of Appeals pointed out that the study did not draw any conclusions about whether the Los treated combination adult bookstore /arcades as single Angeles ordinance was content based. It explained establishments and did not study the effect of any that, even if the Los Angeles ordinance were content separate - standing adult bookstore or arcade. 222 F.3d neutral, the city had failed to demonstrate, as required at 724. by the third step of the Renton analysis, that its prohibition on multiple -use adult establishments was The Court of Appeals misunderstood the implications designed to serve its substantial interest in reducing of the 1977 study. While the study reveals that areas crime. The Court of Appeals noted that the primary with high concentrations of adult establishments are evidence relied upon by Los Angeles to demonstrate a associated with high crime rates, areas with high link between combination adult businesses and harmful concentrations of adult establishments are also areas secondary effects was the 1977 study conducted by the with high concentrations { * *22} of adult operations, city's planning department. The Court of Appeals albeit each in separate establishments. It was therefore consistent with the found, however, that the city could not rely on that findings of the 1977 study, and thus study because it did not "'support a reasonable belief reasonable, for Los Angeles to suppose that a that [the] combination [of] businesses ... produced concentration of adult establishments is correlated with harmful secondary effects { * *20} of the type high crime rates because a concentration of operations asserted." 222 F.3d at 724. For similar reasons, the in one locale draws, for example, a greater Court of Appeals also rejected the city's attempt to rely concentration of adult consumers to the neighborhood, on a report on health conditions inside adult video and a high density of such consumers either attracts or arcades described in Hart Book Stores, a case that generates criminal activity. The assumption behind this theory is that having a number of adult operations in one single adult establishment draws the same dense Respondents make the same logical error as the Court foot traffic as having a number of distinct adult of Appeals when they suggest that the city's prohibition establishments in close proximity, much as minimalls on multiuse establishments will raise crime rates in and department stores similarly attract the crowds of certain neighborhoods because it will force certain consumers. Brief for Petitioner 28. Under this view, it adult businesses to relocate to areas without any other is rational for the city to infer that reducing the adult businesses. Respondents' claim assumes that the concentration of adult operations in a neighborhood, 1977 study proves that all adult businesses, whether or whether within separate establishments or in one large not they are located near other adult businesses, establishment, will reduce crime rates. generate crime. { * *25} This is a plausible reading of Neither the Court of Appeals, nor respondents, nor the the results from the 1977 study, but respondents do not dissent provides any reason to question the city's demonstrate that it is a compelled reading. Nor do they theory. In particular, they do not offer a competing provide evidence that refutes the city's interpretation of theory, let alone { * *23} data, that explains why the the study, under which the city's prohibition should on elevated crime rates in neighborhoods with a balance reduce crime. If this Court were nevertheless concentration of adult establishments can be attributed to accept respondents' speculation, it would effectively entirely to the presence of permanent walls between, require that the city provide evidence that not only and separate entrances to, each individual adult _supports the claim that its ordinance serves an operation. While the city certainly bears the burden of important government interest, but also does not providing evidence that supports a link between provide support for any other approach to serve that concentrations of adult operations and asserted interest. secondary effects, it does not bear the burden of In Renton, we specifically refused to set such a high providing evidence that rules out every theory for the bar for municipalities that want to address merely the link between concentrations of adult establishments secondary effects of protected speech. We held that a that is inconsistent with its own. municipality may rely on any evidence that is The error that the Court of Appeals made is that it "reasonably believed to be relevant" for demonstrating required the city to prove that its theory about a a connection between speech and a substantial, concentration of adult operations attracting crowds of independent government interest. 475 U.S. at 51 -52; customers, much like a minimall or department store see also, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. does, is a necessary consequence of the 1977 study. 560, 584, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) For example, the Court of Appeals refused to allow the (SOUTER, J., concurring in judgment) (permitting city to draw the inference that "the expansion of an municipality to use evidence that adult theaters are adult bookstore to include an adult arcade would correlated with harmful secondary effects { * *26} to increase" business activity and "produce the harmful support its claim that nude dancing is likely to produce secondary effects identified in the Study." 222 F.3d at the same effects). This is not to say that a municipality 726. It reasoned that such an inference would justify can get away with shoddy data or reasoning. The limits on the inventory of an { * *24} adult bookstore, municipality's evidence must fairly support the not a ban on the combination of an adult bookstore and municipality's rationale for its ordinance. If plaintiffs an adult arcade. The Court of Appeals simply replaced fail to cast direct doubt on this rationale, either by the city's theory—that having many different operations demonstrating that the municipality's evidence does not in close Rroximity attracts crowds —with its own -that support its rationale or by furnishing evidence that the size of an operation attracts crowds. If the Court of disputes the municipality's factual findings, the Appeals' theory is correct, then inventory limits make municipality meets the standard set forth in Renton. If more sense. If the city's theory is correct, then a plaintiffs succeed in casting doubt on a municipality's prohibition on the combination of businesses makes rationale in either manner, the burden shifts back to the more sense. Both theories are consistent with the data municipality to supplement the record with evidence in the 1977 study. The Court of Appeals' analysis, renewing support for a theory that justifies its however, implicitly requires the city to prove that its ordinance. See, e.g., Erie v. Pap's A. M., 529 U.S. theory is the only one that can plausibly explain the 277, 298, 146 L. Ed. 2d 265, 120 S. Ct. 1382 (2000) data because only in this manner can the city refute the (plurality opinion). This case is at a very early stage in Court of Appeals' logic. this process. It arrives on a summary judgment motion by respondents defended only by complaints that the 9 1977 study fails to prove that the city's justification for 666; Erie v. Pap's A. M., supra, at 297 -298 (plurality its ordinance is necessarily correct. Therefore, we opinion). We are also guided by the fact that Renton conclude that the city, at this stage of the litigation, has requires that municipal ordinances receive only complied { * *27} with the evidentiary requirement in intermediate scrutiny if they are content neutral. Renton. Renton, supra, at 48 -50. There is less reason to be JUSTICE SOUTER faults the city for relying on the concerned that municipalities will use these ordinances 1977 study not because the study fails to support the to discriminate against unpopular speech. See. Erie, city's theory that adult department stores, like adult supra, at 298 -299. minimalls, attract customers and thus crime, but JUSTICE SOUTER would have us rethink this because the city does not demonstrate that free- balance, and indeed the entire Renton framework. In standing single -use adult establishments reduce crime. Renton, the Court distinguished the inquiry into See post, at 8 -9 (dissenting opinion). In effect, whether a municipal ordinance is content neutral from JUSTICE SOUTER asks the city to demonstrate, not the inquiry into whether it is "designed to serve a merely by appeal to common sense, but also with substantial government interest and do not empirical data, that its ordinance will successfully unreasonably limit alternative avenues of lower crime. Our cases have never required that communication." 475 U.S. at 47 -54. The former municipalities make such a showing, certainly not requires courts to verify that the "predominate without actual and convincing evidence from plaintiffs concerns" motivating the ordinance "were with the to the contrary. See, e.g., Barnes, supra, at 583 -584 secondary effects of adult [speech], and not with the ( SOUTER, J., concurring in judgment). Such a content { * *30} of adult [speech]." Id., at 47. The requirement would go too far in undermining our latter inquiry goes one step further and asks whether settled position that municipalities must be given a the municipality can demonstrate a connection between "reasonable opportunity to experiment with solutions "' the speech regulated by the ordinance and the to address the secondary effects of protected speech. secondary effects that motivated the adoption of the Renton, supra, at 52 (quoting Young v. American ordinance. Only at this stage did Renton contemplate Mini Theatres, Inc., 427 U.S. 50, 71, 49 L. Ed. 2d that courts would examine evidence concerning 310, 96 S. Ct. 2440 (1976) (plurality opinion)). A regulated speech and secondary effects. Id., at 50 -52. municipality considering { * *28} an innovative JUSTICE SOUTER would either merge these two solution may not have data that could demonstrate the inquiries or move the evidentiary analysis into the efficacy of its proposal because the solution would, by inquiry on content neutrality, and raise the evidentiary definition, not have been implemented previously. The bar that a municipality must pass. His logic is that city's ordinance banning multiple -use adult verifying that the ordinance actually reduces the establishments is such a solution. Respondents contend secondary effects asserted would ensure that zoning that there are no adult video arcades in Los Angeles regulations are not merely content -based regulations in County that operate independently of adult bookstores. disguise. See post, at 5 -6. See Brief for Respondents 41. But without such arcades, the city does not have a treatment group to We this proposal unwise. First, none of the compare with the control group of multiple -use adult parties request the Court to depart from the Renton establishments, and without such a comparison framework. Nor is the proposal fairly encompassed in JUSTICE SOUTER would strike down the city's the question presented, which focuses on the sorts of ordinance, This leaves the city with no means to evidence upon which the city may rely to demonstrate address the secondary effects with which it is that its ordinance is designed to serve a substantial concerned. governmental interest. Pet. for Cert. i. Second, {**31) there is no evidence suggesting that courts have Our deference to the evidence presented by the city of difficulty determining whether municipal ordinances Los Angeles is the product of a careful balance are motivated primarily by the content of adult speech between competing interests. One the one hand, we or by its secondary effects without looking to evidence have an "obligation to exercise independent judgment connecting such speech to the asserted secondary when First Amendment rights are implicated." Turner effects. In this case, the Court of Appeals has not yet Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666, had an opportunity to address the issue, having 129 L. Ed. 2d 497, 114 S. Ct. 2445 (1994) (plurality assumed for the sake of argument that the city's opinion); see also Landmark Communications, Inc. v. ordinance is content neutral. 222 F.3d at 723. It would Virginia, 435 U.S. 829, 843 -844, 56 L. Ed. 2d 1, 98 S. be inappropriate for this Court to reach the question of Ct. 1535 (1978). On { * *29} the other hand, we must content neutrality before permitting the lower court to acknowledge that the Los Angeles City Council is in a pass upon it. Finally, JUSTICE SOUTER does not better position than the Judiciary to gather and evaluate clarify the sort of evidence upon which municipalities data on local problems. See Turner, supra, at 665- may rely to meet the evidentiary burden he would require. It is easy to say that courts must demand regulation, and that the Court subject the ordinance to evidence when "common experiences" or "common strict scrutiny. This also appears to be the theme of assumptions" are incorrect, see post, at 6 -7, but it is JUSTICE KENNEDY'S concurrence. He contends that difficult for courts to know ahead of time whether that "[a] city may not assert that it will reduce secondary condition is met. Municipalities will, in general, have effects by reducing speech in the same proportion." greater experience with and understanding of the Post, at 7 (opinion concurring in judgment). We secondary effects that follow certain protected speech consider that unobjectionable { * *34} proposition as than will the courts. See Pap's A. M., 529 U.S. at 297- simply a reformulation of the requirement that an 298 (plurality { * *32} opinion). For this reason our ordinance warrants intermediate scrutiny only if it is a cases require only that municipalities rely upon time, place, and manner regulation and not a ban. The evidence that is "reasonably believed to be relevant" to Court of Appeals held, however, that the city's the secondary effects that they seek to address. prohibition on the combination of adult bookstores and IB arcades is not a ban and respondents did not petition for review of that determination. The city of Los Angeles argues that its prohibition on Accordingly, we reverse the Court of Appeals' multiuse establishments draws further support from a judgment granting summary judgment to respondents study of the poor health conditions in adult video and remand the case for further proceedings. arcades described in Hart Book Stores, a case that upheld a North Carolina ordinance similar to that It is so ordered. challenged here. See 612 F.2d at 828, n. 9. CONCURBY: SCALIA; KENNEDY Respondents argue that the city cannot rely on evidence from Hart Book Stores because the city CONCUR: JUSTICE SCALIA, concurring. cannot prove it examined that evidence before it enacted the current version of § 12.70(C). Brief for I join the plurality opinion because I think it represents a correct application of our jurisprudence concerning Respondents 21. Respondents note, moreover, that regulation of the "secondary effects" of pornographic unsanitary conditions in adult video arcades would speech. As I have said elsewhere, however, in a case persist regardless of whether arcades were operated in such as this our First Amendment traditions make the same buildings as, say, adult bookstores. Ibid. "secondary effects" analysis quite unnecessary. The We do not, however, need to resolve the parties' Constitution does not prevent those communities that dispute over evidence cited in Hart Book Stores. wish to do so from regulating, or indeed entirely Unlike the city of Renton, the city of Los Angeles suppressing, the business of pandering sex. See, e.g., conducted its own study of adult businesses. We have Erie v. Pap's A. M., 529 U.S. 277, 310, 146 L. Ed. 2d concluded that the Los Angeles study provides 265, 120 S. Ct. 1382 (2000) (SCALIA, J., concurring evidence to support the { * *33} city's theory that a in judgment); FW/PBS, Inc. v. Dallas, 493 U.S. 215, concentration of adult operations in one locale attracts 256 -261, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990) crime, and can be reasonably relied upon to { * *35} (SCALIA, J., concurring in part and dissenting demonstrate that Los Angeles Municipal Code § in part). 12.70(C) (1983) is designed to promote the city's JUSTICE KENNEDY, concurring in the judgment. interest in reducing crime. Therefore; the city need not present foreign studies to overcome the summary Speech can produce tangible consequences: It can judgment.against it. change minds. It can prompt actions. These primary Before concluding, it should be noted that respondents effects signify the power and the necessity of free argue, as an alternative basis to sustain the Court of speech. Speech can also cause secondary effects, Appeals' judgment, that the Los Angeles ordinance is however, unrelated to the impact of the speech on its not a typical zoning regulation. Rather, respondents audience. A newspaper factory may cause pollution, explain, the prohibition on multiuse adult and a billboard may obstruct a view. These secondary establishments is effectively a ban on adult video consequences are not always immune from regulation arcades because no such business exists independently by zoning laws even though they are produced by of an adult bookstore. Brief for Respondents 12 -13. speech. Respondents request that the Court hold that the Los Municipal governments know that high concentrations Angeles ordinance is not a time, place, and manner of adult businesses can damage the value and the 11 integrity of a neighborhood. The damage is inexorable that a city could reduce secondary effects measurable; it is all too real. The law does not require a by reducing speech, this is not a permissible strategy. city to ignore these consequences if it uses its zoning The purpose and effect of a zoning ordinance must be power in a reasonable way to ameliorate them without to reduce secondary effects and not to reduce speech. suppressing. speech. A city's "interest in attempting to preserve the quality of urban life is one that must be A zoning measure can be consistent with the First accorded high respect." Young v. American Mini Amendment if it is likely to cause a significant Theatres, Inc., 427 U.S. 50, 71, 49 L. Ed. 2d 310, 96 decrease { * *38} in secondary effects and a trivial S. Ct. 2440 (1976) (plurality opinion). decrease in the quantity of speech. It is well documented that multiple adult businesses in close The question in this case is whether Los Angeles can proximity may change the character of a neighborhood seek to reduce these tangible, { * *36} adverse for the worse. Those same businesses spread across the consequences by separating adult speech businesses city may not have the same deleterious effects. At least from one another- -even two businesses that have in theory, a dispersal ordinance causes these businesses always been under the same roof. In my view our to separate rather than to close, so negative precedents may allow the city to impose its regulation externalities are diminished but speech is not. in the exercise of the zoning impose its regulation in the exercise of the zoning authority. The city is not, at The calculus is a familiar one to city planners, for least, to be foreclosed by summary judgment, so I many enterprises other than adult businesses also cause concur in the judgment. undesirable externalities. Factories, for example, may cause pollution, so a city may seek to reduce the cost This separate statement seems to me necessary, of that externality by restricting factories to areas far however, for two reasons. First, Renton v. Playtime from residential neighborhoods. With careful urban Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. planning a city in this way may reduce the costs of Ct. 925 (1986), described a similar ordinance as pollution for communities, while at the same time "content neutral," and I agree with the dissent that the allowing the productive work of the factories to designation is imprecise. Second, in my view, the continue. The challenge is to protect the. activity inside plurality's application of Renton might constitute a while controlling side effects outside. subtle expansion, with which I do not concur. Such an ordinance might, like a speech restriction, be I "content based." It might, for example, single out In Renton, the Court determined that while the slaughterhouses for specific zoning treatment, material inside adult bookstores and movie theaters is restricting them to { * *39} a particularly remote part of speech, the consequent sordidness outside is not. The town. Without knowing more, however, one would challenge is to correct the latter while leaving the hardly presume that because the ordinance is specific former, as far as possible, untouched. If a city can to that business, the city seeks to discriminate against it decrease the crime and blight associated with certain or help a favored group. One would presume, rather, speech by the traditional exercise of its zoning power, that the ordinance targets not the business but its Particular noxious side effects. But. cf. Slaug /rter and at the same time leave the quantity and accessibility of the speech substantially { * *37} House Cases, 83 U.S. 36, 16 Wall. 36, 21 L. Ed. 394 undiminished, there is no First Amendment objection. (1873). The business might well be the city's most This is so even if the measure identifies the problem valued enterprise; nevertheless, because of the outside by reference to the speech inside —that is, even pollution it causes, it may warrant special zoning treatment. This sort of singling out is not impermissible if the measure is in that sense content based. content discrimination; it is sensible urban planning. On the other hand, a city may not regulate the Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. secondary effects of speech by suppressing the speech 365, 388, 71 L. Ed. 303, 47 S. Ct. 114 (1926) ( "A itself. A city may not, for example, impose a content- nuisance may be merely a right thing in the wrong based fee or tax. See Arkansas Writers' Project, Inc. place, - -like a pig in the parlor instead of the barnyard. v. Ragland, 481 U.S. 221, 230, 95 L. Ed. 2d 209, 107 If the validity of the legislative classification for S. Ct. 1722 (1987) ("Official scrutiny of the content of zoning purposes be fairly debatable, the legislative publications as the basis for imposing a tax is entirely judgment must be allowed to control "). incompatible with the First Amendment's guarantee of freedom of the press "). This is true even if the True, the First Amendment protects speech and not government purports to justify the fee by reference to slaughterhouses. But in both contexts, the inference of secondary effects. See Forsyth County v. Nationalist impermissible discrimination is not- strong. An equally Movement, 505 U.S. 123, 134 - 135, 120 L. Ed. 2d 101, - strong inference is that the ordinance { * *40} is 112 S. Ct. 2395 (1992). Though the inference may be targeted not at the activity, but at its side effects. If a zoning ordinance is directed to the secondary effects of adult speech, the ordinance does not necessarily the statute describes speech by content then it is constitute impermissible content discrimination. A content based. And the ordinance in Renton "treat[ed] zoning law need not be blind to the secondary effects theaters that specialize in adult films differently from of adult speech, so long as the purpose of the law is not other kinds of theaters." Id, at 47. The fiction that this to suppress it. sort of ordinance is content neutral - -or "content The ordinance at issue in this case is not limited to neutral " - -is perhaps more confusing than helpful, as expressive activities. It also extends, for example, to JUSTICE SOUTER demonstrates, see post, at 4 massage parlors, which the city has found to cause (dissenting opinion). It is also not a fiction that has similar secondary effects. See Los Angeles Municipal commanded our consistent adherence. See Thomas v. Code §§ 12.70(B)(8) (1978), 12.70(B)(17) (1983), Chicago Park Dist., 534 U.S. 316, 322, 151 L. Ed. 2d 1270 C 783, 122 S. Ct. 775, and n. 2 (2002) (suggesting that a ( ) (1986), as amended. This ordinance, licensing scheme targeting only those businesses moreover, is just one part of an elaborate web of land - use regulations in Los Angeles, all of which are purveying sexually explicit speech is not content intended to promote the social value of the land as a neutral). These ordinances are content based and we whole without suppressing some activities or favoring should call them so. others. See § 12.02 ( "The purpose of this article is to Nevertheless, for the reasons discussed above, the consolidate and coordinate all existing zoning central holding of Renton is sound: A zoning regulations and provisions into one comprehensive restriction that is designed to decrease secondary zoning plan . . . in order to encourage the most effects and not speech should be subject to appropriate use of land ... and to promote the health, intermediate rather than strict {**43 } scrutiny. safety, and the general welfare ... "). All this further Generally, the government has no power to restrict suggests that {**411 the ordinance is more in the speech based on content, but there are exceptions to the nature of a typical land -use restriction and less in the rule. See Simon & Schuster, Inc. v. Members of N. Y. nature of a law suppressing speech. State Crime Victims Bd., 502 U.S. 105, 126 -127, 116 For these reasons, the ordinance is not so suspect that L. Ed. 2d 476, 112 S. Ct. 501 (1991) (KENNEDY, J., we must employ the usual rigorous analysis that concurring in judgment). And zoning regulations do content based laws demand in other instances. The not automatically raise the specter of impermissible ordinance may be a covert attack on speech, but we content discrimination, even if they are content based, should not presume it to be so. In the language of our because they have a prima facie legitimate purpose: to First Amendment doctrine it calls for intermediate and limit the negative externalities of land use. As a matter of common experience, these sorts of ordinances are not strict scrutiny, as we held in Renton. more like a zoning restriction on slaughterhouses and II less like a tax on unpopular newspapers. The zoning In Renton, the Court began by noting that a zoning context provides a built-in legitimate rationale, which ordinance is a time, place, or manner restriction. The rebuts the usual presumption that content -based Court then proceeded to consider the question whether restrictions are unconstitutional. For this reason, we the ordinance was "content based." The ordinance "by apply intermediate rather than strict scrutiny. its terms [was] designed to prevent crime, protect the III city's retail trade, maintain property values, and generally,protect and preserve the quality of [the city's] The narrow question presented in this case is whether neighborhoods, commercial districts, and the quality of the ordinance at issue is invalid "because the city did urban life, not to suppress the expression of unpopular not study the negative effects of such combinations of views." 475 U.S. at 48 (internal quotation marks adult businesses, but rather relied on judicially omitted). On this premise, the Court designated the approved statutory precedent from other jurisdictions." restriction "content neutral." Ibid. Pet. for Cert. i. This question { * *44} is actually two questions. First, what proposition does a city need to The Court appeared to recognize, however, that the advance in order to sustain a secondary- effects designation { * *42} was something of a fiction, which, ordinance? Second, how much evidence is required to perhaps, is why it kept the phrase in quotes. After all, support the proposition? The plurality skips to the whether a statute is content neutral or content based is second question and gives the correct answer; but in something that can be determined on the face of it; if my view more attention must be given to the first. 13 At the outset, we must identify the claim a city must One business will either move elsewhere or close. The make in order to justify a content -based zoning city's premise cannot be the latter. It is true that cutting ordinance. As discussed above, a city must advance adult speech in half would probably reduce secondary some basis to show that its regulation has the purpose effects proportionately. But again, a promised Proportional reduction does not suffice. Content -based and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech taxes could achieve that, yet these are impermissible. substantially intact. The ordinance may identify the The premise, therefore, must be that businesses - -even speech based on content, but only as a shorthand for those that have always been under one roof- -will for identifying the secondary effects outside. A city may the most part disperse rather than shut down. True, this not assert that it will reduce secondary effects by premise { * *47} has its own conundrum. As JUSTICE reducing speech in the same proportion. On this point, SOUTER writes, "the city... claims no interest in the I agree with JUSTICE SOUTER. See post, at 5. The proliferation of adult businesses." Post, at 9. The claim, rationale of the ordinance must be that it will suppress therefore, must be that this ordinance will cause two secondary effects- -and not by suppressing speech. businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, The plurality's statement of the proposition to be supported is somewhat different. It suggests that Los and that total secondary effects will be significantly Angeles could reason as follows: { * *45} (1) "a reduced. This must be the rationale of a dispersal concentration of operations in one locale draws ... a statute. greater concentration of adult consumers to the Only after identifying the proposition to be proved can neighborhood, and a high density of such consumers we ask the second part of the question presented: is either attracts or generates criminal activity"; (2) there sufficient evidence to support the proposition? As "having a number of adult operations in one single to this, we have consistently held that a city must have adult establishment draws the same dense foot traffic latitude to experiment, at least at the outset, and that as having a number of distinct adult establishments in very little evidence is required. See, e.g., Renton, 475 close proximity"; (3) "reducing the concentration of U.S. at 51 -52 ( "The First Amendment does not require adult operations in a neighborhood, whether within a city, before enacting such an ordinance, to conduct separate establishments or in one large establishment, new studies or produce evidence independent of that will reduce crime rates." Ante, at 8 -9. already generated by other cities, so long as whatever These propositions all seem reasonable, and the evidence the city relies upon is reasonably believed to inferences required to get from one to the next are be relevant to the problem that the city addresses "); sensible. Nevertheless, this syllogism fails to capture Young, 427 U.S. at 71 ( "The city must be allowed a an important part of the inquiry. The plurality's reasonable opportunity { * *48} to experiment with analysis does not address how speech will fare under solutions to admittedly serious problems "); Erie v. the city's ordinance. As discussed, the necessary Pap's A. M., 529 U.S. 277, 300 -301, 146 L. Ed. 2d rationale for applying intermediate scrutiny is the 265, 120 S. Ct. 1382 (2000) (plurality opinion). As a promise that zoning ordinances like this one may general matter, courts should not be in the business of reduce the costs of secondary effects without second - guessing fact -bound empirical assessments of substantially reducing speech. For this reason, it does city planners. See Renton, supra, at 51 -52. The Los not suffice to say that inconvenience will reduce Angeles City Council knows the streets of Los Angeles demand and fewer patrons will lead to fewer secondary better than we do. See Turner Broadcasting System, effects. {' *46} This reasoning would as easily justify Inc. v. FCC, 512 U.S. 622, 665 -666, 129 L. Ed. 2d a content -based tax: Increased prices will reduce 497, 114 S. Ct. 2445 (1994); Erie, supra, at 297 -298 demand, and fewer customers will mean fewer (plurality opinion). It is entitled to rely on that secondary effects. But a content -based tax may not be knowledge; and if its inferences appear reasonable, we justified in this manner. See Arkansas Writers' should not say there is no basis for its conclusion. Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d In this case the proposition to be shown is supported 209, 107 S. Ct. 1722 (1987); Forsyth County v. by a single study and common experience. The city's Nationalist Movement, 505 U.S. 123, 120 L. Ed. 2d study shows a correlation between the concentration of 101, 112 S. Ct. 2395 (1992). It is no trick to reduce adult establishments and crime. Two or more adult secondary effects by reducing speech or its audience; businesses in close proximity seem to attract a critical but a city may not attack secondary effects indirectly mass of unsavory characters and the crime rate may by attacking speech. increase as a result. The city, therefore, sought to The analysis requires a few more steps. If two adult disperse these businesses. Los Angeles Municipal businesses are under the same roof, an ordinance Code § 12.70(C) (1983), as amended. This original requiring them to separate will have one of two results: ordinance is not challenged { * *49} here, and we may DISSENT: JUSTICE SOUTER, with whom JUSTICE assume that it is constitutional. STEVENS and JUSTICE GINSBURG { * *51 } join, If we assume that the study supports the original and with whom JUSTICE BREYER joins as to Part II, ordinance, then most of the necessary analysis follows. dissenting. We may posit that two adult stores next door to each In 1977, the city of Los Angeles studied sections of other attract 100 patrons per day. The two businesses the city with high and low concentrations of adult split apart might attract 49 patrons each. (Two patrons, perhaps, will be discouraged by the inconvenience of business establishments catering to the market for the the separation - -a relatively small cost to speech.) On erotic. The city found no certain correlation between the other hand, the reduction in secondary effects the location of those establishments and depressed Property values, but it did might be dramatic, because secondary effects may find some correlation require a critical mass. Depending on the economics of between areas of higher concentrations of such vice, 100 potential customers /victims might attract a business and higher crime rates. On that basis, Los coterie of thieves, prostitutes, and other ne'er -do- wells; Angeles followed the examples of other cities in yet 49 might attract none at all. If so, a dispersal adopting a zoning ordinance requiring dispersion of ordinance would cause a great reduction in secondary adult establishments. Iassume that the ordinance was effects at very small cost to speech. Indeed, the very constitutional when adopted, see, e.g., Young v. absence of secondary effects might increase the American Mini Theatres, Inc., 427 U.S. 50, 49 L. Ed. audience for the speech; perhaps for every two people 2d 310, 96 S. Ct. 2440 (1976), and assume for who are discouraged by the inconvenience of two -stop purposes of this case that the original ordinance shopping, another two are encouraged by hospitable remains valid today. nl surroundings. In that case, secondary effects might be eliminated at no cost to speech whatsoever, and both Footnotes the city and the speaker { * *50} will have their interests well served. n1 Although amicus First Amendment Only one small step remains to justify the ordinance at Lawyers Association argues that recent issue in this case. The city may next infer —from its studies refute the findings of adult business study and from its own experience —that two adult correlations with secondary effects businesses under the same roof are no better than two sufficient to justify such an ordinance, next door. The city could reach the reasonable Brief for First Amendment Lawyers conclusion that knocking down the wall between two Association as Amicus Curiae 21 -23, the adult businesses does not ameliorate any undesirable issue is one I do not reach. secondary effects of their proximity to one another. If the city's first ordinance was justified, therefore, then - - -End Footnotes- - - the second is too. Dispersing two adult businesses { * *52} under one roof is reasonably likely to cause a substantial reduction in secondary effects while The city subsequently amended its ordinance to forbid reducing speech very little. clusters of such businesses at one address, as in a mall. IV The city has, in turn, taken a third step to apply this amendment to prohibit even a single proprietor from These propositions are well established in common doing business in a traditional way that combines an experience and in zoning policies that we have already adult bookstore, selling books, magazines, and videos, examined, and for these reasons this ordinance is not with an adult arcade, consisting of open viewing invalid on its face. If these assumptions can be proved booths, where potential purchasers of videos can view unsound at trial, then the ordinance might not them for a fee. withstand intermediate scrutiny. The ordinance does, From a policy of dispersing adult establishments, the however, survive the summary judgment motion that the Court of Appeals ordered granted in this case. city has thus moved to a policy of dividing them in two. The justification claimed for this application of DISSENTBY: SOUTER the new policy remains, however, the 1977 survey, as supplemented by the authority of one decided case on 15 regulating adult arcades in another State. The case wrong with a loudspeaker at three in the morning, see authority is not on point, see infra, at 9, n. 4, and the Kovacs v. Cooper, 336 U.S. 77, 93 L. Ed. 513, 69 S. 1977 survey provides no support for the breakup Ct. 448 (1949); the sentiment may not provoke, but policy. Its evidentiary insufficiency bears emphasis and being blasted out of a sound sleep { * *55} does. In is the principal reason that I respectfully dissent from such a case, we ask simply whether the regulation is the Court's judgment today. narrowly tailored to serve a significant governmental I interest, and . . . leave[s] open ample alternative channels for communication of the information." Clark This ordinance stands or falls on the results of what v. Community for Creative Non - Violence, 468 U.S. our cases speak of as intermediate scrutiny, generally 288, 293, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984). A contrasted with the demanding standard applied under middle -tier standard is also applied to limits on the First Amendment { * *53} to a content -based expression through action that is otherwise subject to regulation of expression. The variants of middle -tier regulation for nonexpressive purposes, the best known tests cover a grab -bag of restrictive, statutes, with a example being the prohibition on destroying draft cards corresponding variety of justifications. While spoken as an act of protest, United States v. O'Brien, 391 U.S. of as content neutral, these regulations are not 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968); here a uniformly distinct from the content -based regulations regulation passes muster "if it furthers an important or calling for scrutiny that is strict, and zoning of substantial governmental interest ... unrelated to the businesses based on their sales of expressive adult suppression of free expression" by a restriction "no material receives mid -level scrutiny, even though it greater than is essential to the furtherance of that raises a risk of content -based restriction. It is worth interest." Id., at 377. As mentioned already, yet being clear, then, on how close to a content basis adult another middle -tier variety is zoning restriction as a business zoning can get, and why the application of a means of responding to the "secondary effects" of adult middle -tier standard to zoning regulation of adult businesses, principally crime and declining property bookstores calls for particular care. values in the neighborhood. Renton v. Playtime Because content -based regulation applies to Theatres, Inc., 475 U.S. 41, 49, 89 L. Ed. 2d 29, 106 expression by very reason of what is said, it carries a S. Ct. 925 (1986). n2 high risk that expressive limits are imposed for the sake of suppressing a message that is disagreeable to Footnotes listeners or readers, or the government. See Consolidated Edison Co. of N. Y. v. Public Serv. n2 Comm'n of N. Y., 447 U.S. 530, 536, 65 L. Ed. 2d Limiting such effects qualifies as a 319, 100 S. Ct. 2326 (1980) ( "When regulation is substantial governmental interest, and an based on the content of speech, governmental action ordinance has been said to survive if it is must be scrutinized more carefully to ensure that shown to serve such ends without communication * *54 has not been unreasonably limiting alternatives. { } prohibited Renton, 475 U.S. at 50. Because Renton merely because public officials disapprove the speaker's views" (internal quotation marks omitted)). A called its secondary- effects ordinance a restriction based on content survives only on a showing mere time, place, or manner restriction and of necessity to serve a legitimate and compelling thereby glossed over the role of content in governmental interest, combined with least- restrictive secondary- effects zoning, see infra this narrow tailoring to serve it, see United States v. page, I believe the soft focus of its Playboy Entertainment Group, Inc., 529 U.S. 803, statement of the middle -tier test should be 813, 146 L. Ed. 2d 865, 120 S. Ct. 1878 (2000); since rejected in favor of the United States v. merely protecting listeners from offense at the message O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, is not a legitimate interest of the government, see 88 S. Ct. 1673 (1968), formulation quoted Cohen v. California, 403 U.S. 15, 24 -25, 29 L. Ed. 2d above. O'Brien is a closer relative of 284, 91 S. Ct. 1780 (1971), strict scrutiny leaves few secondary- effects zoning than mere time, survivors. place, or manner regulations, as the Court has implicitly recognized. Erie v. Pap's A. The comparatively softer intermediate scrutiny is M., 529 U.S. 277, 289, 146 L. Ed. 2d 265, reserved for regulations justified by something other 120 S. Ct. 1382 (2000). than content of the message, such as a straightforward restriction going only to the time; place, or manner of speech or other expression. It is easy to see why review - - End Footnotes- - - of such a regulation may be relatively relaxed. No one { * *56} has to disagree with any message to find something Although this type of land -use restriction has even zoning and the mitigation of the effects, stress needs to been called a variety of time, place, or manner be placed on the empirical character of the regulation, id., at 46, equating a secondary- effects demonstration available. See Metromedia, Inc. v. San zoning regulation with a mere regulation of time, Diego, 453 U.S. 490, 510, 69 L. Ed. 2d 800, 101 S. place, or manner jumps over an important difference Ct. 2882 (1981) (Judgments ... defying objective between them. A restriction on loudspeakers has no evaluation must be carefully scrutinized to obvious relationship to the substance of what is determine if they are only a public rationalization of an broadcast, while a zoning regulation of businesses in impermissible purpose ); Young, 427 U.S. at 84 adult expression just as obviously does. And while it (Powell, J., concurring) ( "Courts must be alert ... to the may be true that an adult business is burdened only possibility of using the power to zone as a pretext for because of its secondary effects, it is clearly burdened suppressing expression "). The weaker the only if its expressive products have adult content. demonstration of facts distinct from disapproval of the Thus, the Court has recognized that this kind of "adult" viewpoint, the greater the likelihood that regulation, though called content neutral, occupies a nothing more than condemnation of the viewpoint kind of limbo between full - blown, content -based drives the regulation. n3 restrictions and regulations that apply without any reference to the substance of what is said. Id., at 47. Footnotes It would in fact make sense to give this kind of zoning regulation a First Amendment label of its own, and if n3 Regulation of commercial speech, we called it content correlated, we would not only which is like secondary- effects zoning in describe it for what it is, but keep alert to a risk of being subject to an intermediate level of content -based regulation that it poses. The risk lies in First Amendment scrutiny, see Central the fact that when a law applies { * *57} selectively Hudson Gas & Elec. Corp. v. Public Serv. only to speech of particular content, the more precisely Comm'n of N. Y., 447 U.S. 557, 569, 65 L. the content is identified, the greater is the opportunity Ed. 2d 341, 100 S. Ct. 2343 (1980), for government censorship. Adult speech refers not provides an instructive parallel in the cases merely to sexually explicit content, but to speech enforcing an evidentiary requirement to reflecting a favorable view of being explicit about sex ensure that an asserted rationale does not and a favorable view of the practices it depicts; a cloak an illegitimate governmental motive. restriction on adult content is thus also a restriction See, e.g., Rubin v. Coors Brewing Co., turning on a particular viewpoint, of which the 514 U.S. 476, 487, 131 L. Ed. 2d 532, 115 government may disapprove. S. Ct. 1585 (1995); Edenfield v. Fane, This risk of viewpoint discrimination is subject to a 507 U.S. 761, 123 L. Ed. 2d 543, 113 S. simple safeguard, Ct. 1792 (1993). The government's relatively p guard, however. If combating "burden is not satisfied by mere secondary effects of property devaluation and crime is truly the reason for the regulation, it is possible to speculation or conjecture," but only by show by empirical evidence that the effects exist, that "demonstrat[ing] that the harms [the they are caused by the expressive activity subject to the government] recites are real and that its zoning, and that the zoning can be expected either to restriction will in fact alleviate them to a ameliorate them or to enhance the capacity of the material degree." Id, at 770 -771. For government to combat them (say, by concentrating unless this "critical" requirement is met, them in one area), without suppressing the expressive Rubin, supra, at 487, "a State could with activity itself. This capacity of zoning regulation to ease restrict commercial speech in the address the practical problems without eliminating the service of other objectives that could not s speech is, after all, the only themselves justify a burden on commercial P y possible excuse for expression," " E den eld supra, at 771. speaking of secondary- effects zoning { * *58} as akin P f to time, place, or manner regulations. In examining claims that there are causal relationships - - -End Footnotes- - - between adult businesses and an increase in secondary { * *59} effects (distinct from disagreement), and between 17 Equal stress should be placed on the point that any causal relationship between the breakup policy and requiring empirical justification of claims about elimination or regulation of secondary effects. property value or crime is not demanding anything II Herculean. Increased crime, like prostitution and Our cases on the subject have referred to studies, muggings, and declining property values in areas surrounding adult businesses, are all readily undertaken with varying degrees of formality, showing observable, often to the untrained eye and certainly to the geographical correlations between the presence or the police officer and urban planner. These harms can concentration of adult business establishments and be shown by police reports, crime statistics, and studies enhanced crime rates or depressed property values. See, e.g., Renton, sup ra, at 50 -51; Young, supra, at of market value, all of which are within a municipality's capacity or available from the distilled 55. Although we have held that intermediate scrutiny experiences of comparable communities. See, e.g., of secondary- effects legislation does not demand a Renton, supra, at 51; Young, supra, at 55. fresh evidentiary study of its factual basis if the published results of investigations elsewhere are And precisely because this sort of evidence is readily "reasonably" thought to be applicable in a different available, reviewing courts need to be wary when the municipal setting, Renton, supra, at 51 -52, the city government appeals, not to evidence, but to an here took responsibility { * *62} to make its own uncritical common sense in an effort to justify such a enquiry. App. 35 -162. As already mentioned, the study zoning restriction. It is not that common sense is was inconclusive as to any correlation between adult always illegitimate in First Amendment demonstration. business and lower property values, id, at 45, and it The need for independent proof varies with the point reported no association between higher crime rates and that has to be established, and zoning can be supported any isolated adult establishments. But it did find a by common experience when there is no reason to geographical correlation of higher concentrations of question it. We have appealed to common sense in adult establishments with higher crime rates, id, at 43, analogous { * *60} cases, even if we have disagreed and with this study in hand, Los Angeles enacted its about how far it took us. See Erie v. Pap's A. M., 529 1978 ordinance requiring dispersion of adult stores and U.S. 277, 300 -301, 146 L. Ed. 2d 265, 120 S. Ct. 1382 theaters. This original position of the ordinance is not (2000) (plurality opinion); id, at 313, and n. 2 challenged today, and I will assume its justification on (SOUTER, J., concurring in part and dissenting in the theory accepted in Young, that eliminating part). But we must be careful about substituting concentrations of adult establishments will spread out common assumptions for evidence, when the evidence the documented secondary effects and render them is as readily available as public statistics and municipal more manageable that way. property valuations, lest we find out when the evidence is gathered that the assumptions are highly debatable. The application of the 1983 amendment now before us The record in this very case makes the point. It has is, however, a different matter. My concern is not with become a common- place, based on our own cases, that the assumption behind the amendment itself, that a concentrating adult establishments drives down the conglomeration of adult businesses under one roof, as value of neighboring property used for other purposes. in a minimall or adult department store, will produce undesirable secondary effects comparable to what a See Renton, 475 U.S. at 51; Young, 427 U.S. at 55. In cluster of separate adult establishments brings about, fact, however, the city found that general assumption ante, at 8. { * *63} That may or may not be so. The unjustified by its 1977 study. App. 39, 45. assumption that is clearly unsupported, however, goes The lesson is that the lesser scrutiny applied to to the city's supposed interest in applying the content - correlated zoning restrictions is no excuse for a amendment to the book and video stores in question, government's failure to provide a factual demonstration and in applying it to break them up. The city, of for claims it makes about secondary effects; on the course, claims no interest in the proliferation of adult contrary, this is what demands the demonstration. See, establishments, the ostensible consequence of splitting e.g., Schad v. Mount Ephraim, 452 U.S. 61, 72 -74, the sales and viewing activities so as to produce two 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). ("61} In stores where once there was one. Nor does the city this case, however, the government has not shown that assert any interest in limiting the sale of adult bookstores containing viewing booths, isolated from expressive material as such, or reducing the number of other adult establishments, increase crime or produce adult video booths in the city, for that would be clear other negative secondary effects in surrounding content -based regulation, and the city was careful in its neighborhoods, and we are thus left without substantial 1977 report to disclaim any such intent. App. 54. n4 justification for viewing the city's First Amendment restriction as content correlated but not simply content Footnotes based. By the same token, the city has failed to show n4 Finally, the city does not assert an Rather, the city apparently assumes that a bookstore interest in curbing any secondary effects selling videos and providing viewing booths produces within the combined bookstore- arcades. In secondary effects of crime, and more crime than would Hart Book Stores, Inc. v. Edmisten, 612 result from having a single store without booths in one F.2d 821 (1979), the Fourth Circuit upheld part of town and a video arcade in another. n5 But the a similar ban in North Carolina, relying in city neither says this in so many words nor proffers any part on a county health department report evidence to support even the simple proposition that an on the results of an inspection of several of otherwise lawfully located adult bookstore combined the combined adult bookstore -video with video booths will produce any criminal effects. arcades in Wake County, North Carolina. The Los Angeles study treats such combined stores as Id, at 828 -829, n. 9. The inspection one, see id, at 81 -82, and draws no general conclusion revealed unsanitary conditions and that individual stores spread apart from other adult evidence of salacious activities taking establishments (as under the basic Los Angeles place within the video cubicles. Ibid. The ordinance) are associated with any degree of criminal city introduces this case to defend its activity above the general norm; nor has the city called breakup policy although it is not clear from the Court's attention to any other empirical study, or the opinion how separating these video even anecdotal police evidence, that supports the city's arcades from the adult bookstores would assumption. In fact, if the Los Angeles study sheds any deter the activities that took place within light whatever on the city's position, it is the light of them. In any event, while Renton v. skepticism, for we may fairly suspect that the study Playtime Theatres, Inc., 475 U.S. 41, 89 said nothing about the secondary effects of L. Ed. 2d 29, 106 S. Ct. 925 (1986), freestanding stores because no effects were observed. allowed a city to rely on the experiences { * *65} The reasonable supposition, then, is that and studies of other cities, it did not 'splitting some of them up will have no consequence dispense with the requirement that for secondary effects whatever. n6 "whatever evidence the city relies upon [be] reasonably believed to be relevant to Footnotes the problem that the city addresses," id, at 51 -52, and the evidence relied upon by the Fourth Circuit is certainly not necessarily n5 The plurality indulges the city's relevant to the Los Angeles ordinance. assumption but goes no further to justify it Since November 1977, five years before than stating what is obvious from what the the enactment of the ordinance at issue, city's study says about concentrations of Los Angeles has regulated adult video adult establishments (but not isolated booths, prohibiting doors, setting minimum ones): the presence of several adult levels of lighting, and requiring that their businesses in one neighborhood draws "a interiors be fully visible from the entrance greater concentration of adult consumers to to the premises. Los Angeles Municipal the neighborhood, [which] either attracts or Code §§ 103.101(i), (j). Thus, it seems less generates criminal activity." Ante, at 8. likely that the unsanitary conditions identified in Hart Book Stores would exist in video arcades in Los Angeles, and the n6 Renton, the Court approved a zoning city has suggested no evidence that they ordinance "aimed at preventing the do. For that reason, Hart Book Stores gives secondary effects caused by the presence no indication of a substantial govemmental of even one such theater in a given interest that the ban on multiuse adult neighborhood." 475 U.S. at 50. The city, establishments would further. however, does not appeal to that decision to show that combined bookstore- arcades - - -End Footnotes- - - isolated from other adult establishments, { * *64} like the theaters in Renton, give rise to negative secondary effects, perhaps 19 recognizing that such a finding would only argues that more recent studies show no call into doubt the sensibility of the city's such thing, but this case involves no such decision to proliferate such businesses. See challenge to the previously accepted causal ante, at 10. Although the question may be connection. open whether a city can rely on the experiences of other cities when they contradict its own studies, that question is n8 JUSTICE KENNEDY would indulge not implicated here, as Los Angeles relies the city in this speculation, so long as it exclusively on its own study, which is could show that the ordinance will "leave tellingly silent on the question whether the quantity and accessibility of speech isolated adult establishments have any substantially intact." Ante, at 7 (opinion bearing on criminal activity. concurring in judgment). But the suggestion that the speculated - - -End Footnotes- - - consequences may justify content - { * *66} correlated regulation if speech is only slightly burdened turns intermediate The inescapable point is that the city does not even scrutiny on its head. Although the goal of claim that the 1977 study provides any support for its intermediate scrutiny is to filter out laws assumption. We have previously accepted studies, like that unduly burden speech, this is achieved the city's own study here, as showing a causal by examining the asserted govemmental connection between concentrations of adult business interest, not the burden on speech, which and identified secondary effects. n7 Since that is an must simply be no greater than necessary acceptable basis for requiring adult businesses to to further that interest. Pap's A. M., 529 disperse when they are housed in separate premises, U.S. at 301; see also n. 2, supra. Nor has there is certainly a relevant argument to be made that JUSTICE KENNEDY even shown that this restricting their concentration at one spacious address ordinance leaves speech "substantially should have some effect on sales, traffic, and effects in intact." He posits an example in which two the neighborhood. But even if that argument may adult stores draw 100 customers, and each justify a ban on adult "minimalls," ante, at 8, it business operating separately draws 49. provides no support for what the city proposes to do Ante, at 9. It does not follow, however, that here. The bookstores involved here are not a combined bookstore- arcade that draws concentrations of traditionally separate adult 100 customers, when split, will yield a businesses that have been studied and shown to have bookstore and arcade that together draw an association with secondary effects, and they nearly that many customers. Given the now exemplify no new form of concentration like a mall double outlays required to operate the under one roof. They are combinations of selling and businesses at different locations, see infra, viewing activities that have commonly been combined, at 15, the far more likely outcome is that and the plurality itself recognizes, ante, at 10, that no the stand -alone video store will go out of study conducted by the city has reported that this business. (Of course, the bookstore owner { * *67} type of traditional business, any more than any could, consistently with the ordinance, other adult business, has a correlation with secondary continue to operate video booths at no effects ifi the absence of concentration with other adult charge, but if this were always establishments in the neighborhood. And even if commercially feasible then the city would splitting viewing booths from the bookstores that face the separate problem that under no continue to sell videos were to turn some customers theory could a rule simply requiring that away (or send them in search of video arcades in other video booths be operated for free be said to neighborhoods), it is nothing but speculation to think reduce secondary effects.) that marginally lower traffic to one store would have any measurable effect on the neighborhood, let alone - - -End Footnotes- - - an effect on associated crime that has never been { * *68} shown to exist in the first place. n8 Nor is the plurality's position bolstered, as it seems to Footnotes think, ante, at 11, by relying on the statement in Renton, that courts should allow cities a "'reasonable opportunity to experiment with solutions to admittedly n7 As already noted, n. 1, supra, amicus serious problems, "' 475 U.S. at 52. The plurality First Amendment Lawyers Association overlooks a key distinction between the zoning regulations at issue in Renton and Young (and in Los scheme, ante, at 13, is indulgent to an Angeles as of 1978), and this new Los Angeles unrealistic degree, as the record in this case breakup requirement. In those two cases, the shows. When the original dispersion municipalities' substantial interest for purposes of ordinance was enacted in 1978, the city's intermediate scrutiny was an interest in choosing study showing a correlation between between two strategies to deal with crime or property concentrations of adult business and higher value, each strategy tied to the businesses' location, crime rates showed that the dispersal of which had been shown to have a causal connection adult businesses was causally related to the with the secondary effects: the municipality could city's law enforcement interest, and that in either concentrate businesses for a concentrated turn was a fair indication that the city's regulatory strategy, or disperse them in order to spread concern was with the secondary effect of out its regulatory efforts. The limitations on location higher crime rates. When, however, the required no further support than the factual basis tying city takes the further step of breaking up location to secondary effects; the zoning approved in businesses with no showing that a those two cases had no effect on the way the owners of traditionally combined business has any the stores carried on their adult businesses beyond association with a higher crime rate that controlling location, ( * *69} and no heavier burden could be affected by the breakup, there is than the location limit was approved by this Court. no indication that the breakup policy addresses a secondary effect, but there is The Los Angeles ordinance, however, does impose a reason to doubt that secondary effects are heavier burden, and one lacking any demonstrable the city's concern. The plurality seems to connection to the interest in crime control. The city no ask us to shut our eyes to the city's failings longer accepts businesses as their owners choose to by emphasizing that this case is merely at conduct them within their own four walls, but bars a the stage of summary judgment, ante, at video arcade in a bookstore, a combination shown by 11, but ignores the fact that at this the record to be commercially natural, if not universal. summary judgment stage the city has made App. 47 -51, 229 -230, 242. Whereas Young and Renton it plain that it relies on no evidence beyond gave cities the choice between two strategies when each was causally related to the city's interest, the the 1977 study, which provides no support for the city plurality today gives Los Angeles a right to s action. "experiment" with a First Amendment restriction in response to a problem of increased crime that the city - - -End Footnotes- - - has never even shown to be associated with combined { * *71} bookstore - arcades standing alone. But the government's freedom of experimentation cannot And concern with content -based regulation targeting a displace its burden under the intermediate scrutiny viewpoint is right to the point here, as witness a fact standard to show that the restriction on speech is no that involves no guesswork. If we take the city s greater than essential to realizing an important breakup policy at its face, enforcing it will mean that in objective, in this case policing crime. Since we cannot every case two establishments will operate instead of make even a best guess that the city's breakup policy the traditional one. Since the city presumably does not will have any effect on crime or { * *70} law wish merely to multiply adult establishments, it makes enforcement, we are a very far cry from any assurance sense to ask what offsetting gain the city may obtain against covert content based regulation. n9 from its new breakup policy. The answer may lie in the fact that two establishments in place of one will entail two business overheads in place of one: two monthly Footnotes rents, two electricity bills, two payrolls. Every month business will be more expensive than it used to be, n9 The plurality's assumption that the perhaps even twice as much. That sounds like a good city's "motive" in applying secondary- strategy for driving out expressive adult businesses. It effects zoning can be entirely sounds, in other words, like a policy of content -based compartmentalized from the proffer of regulation. evidence required to justify the zoning I respectfully dissent. 21