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1'LANNING LAW PRIMER � ♦ e by Tet•ence R. BoQa, Esq. dult entertainment business- es present one of the most diffi- cult land use problems for cities. These enterprises enjoy �onsiderable Iatitude to operate — despite their contri- bution to community blight — because the courts have deemed non-obscene sexually e�plicit entertainnnent to be constitutionally protected speech. In order to maximize regulatory a�tthority and mitigate the negative irnpacts of su�h uses, three strategies should be followed. 1. Narrowly I)efine the �Ise Many people use the term "adult enter€ainment business" to refer to any commercial establishment ehat custom- arily excludes minors. Some municipali- ties have codified this broad definition in their zoning ordinance, including busi- - -n.esses ranging from adult bookstores `� theaters to massage parlors and adult ` _anning salons. A city should more narrowly define what constitutes an adult entertainment business. Bear in mind that the constitu- tional protection £or "speech" applies only to what is deemed "expressive" activity. This primarily encompasses movie exhibitions and book and video sates, and, to a lesser degree, erotic dan�- ing performanees. Enterprises engaged in protected speech generaily have to be afforded spe- cial treatment. For example, there must be a streamlined review process with objeetive approval criteria when a permit is required for adult movie theaters or bookstores. This means chat munzcz�ali- ties must act quicker and can exexcise less discretion vv�th xespect to these types of eammercial establishments. One con- sequence of a broad adult entertainment business definition may be that regulaco- � authority is unnecessarily hindered as �dult uses that do not involve protect- :i speech, silch as massage parlors and adult tanning salons. 2. Compile "Secorxda�ey Effects" 5tadies Ordinarily, the courts wilI "strictly scrutinize" a govez-ximen[ regulatzon that targets speech on the basis of content. This scrutiny is almost always fatal for the regulation. Fortunately, the SL�preme Court has developed what is known as the "sec- trine in Alameda Boohs, Inc. u City af Los Angeles, J.22 S.Ct. 1728, with Justice Kennedy observing thar. `The Los Ange- les Ciry Council knows the streets af Los Angeles beCter than we do. It is entitled to rely on that knowledge; and if its infer- ences appear reasonable, we should not say there is no basis for its conclusion." ondary effects" doctrine to grovide a less 3. Allow a"Reasonable Opportunity" rigorous test for evaluating adult enter- tainment business regulations. In order to quaiify, an ordinance must be adopted for the purpose of curbing the adverse secondary effects o� the speech, not for the purpose of regulating the speech itself. Adverse secondary effects can include inereased crime and the reduo- tion of properry values. Before enacting an adult entertain- ment business ordinance, a municipaliry should compile studies to support a shawing that the regulations are intend- ed to mitigate secondary effects. The Supreme Coure, in its 198b decision in Renton u Playtime Theatres, Inc., 475 U.S. 41, ruied that municipaiities can rety on other �ommunities' experiences as long as the evzdence is reasonably believed to be relevant. That case involved a �hallenge to a provision in Renton, Washington's zon- ing ordinance prohibiting adult motion picture e�eatexs from Iocating within 1,000 feet of any residential zone, single or multi-family dwelling, churckt, park, or school. Renton had relied on the expe- riences of other cities in assessing the adverse impacts oE such adult businesses. As the Supreme Court concluded: "the First Amendment does r�ot require a city, before enaeting such an ordinance, to �onduct new studies or produce evi- dence independent of that already gener- ated by other ci.ties, so Iong as whatever evidence the city relies upon is reasan- ably believed to be relevant to the prob- lem that the city addresses.° In May �OOZ, the Supreme Court reafEirmed its "seco�dary effects" doc- �or Opeeation Most municipalities probably would exclude ati adult entertainment business- es if permitted to do so. Uniess a cominu- nzty is entireiy residential, howevex, a complete ban is unlikely to be valid. The key question is how many sites have to be made available for such uses? Unfortunately, there is no bright line answer, Instead, the Supreme Court in its Renton decision established the following standard: "the First Amendment requires only that [cities] refrain from effectively denying [proprietors] a reasonable opparcunity to open and operate an adult [entertainment business]." When establishing location restric- tions a ciry should take into considera- tion the factors that have been deemed important by the courts in its jurisdic- tion. Some courts insist that there be available sites served by infrastructure. Others demand that there be a genuine possibility af availability, and will dis- count any properties that are subject to long-term ieases. Almost all cour�s evalu- ate the cumutative effect of the restric- tions in order to determine how many adult entertainment businesses can be operated simultaneously. � Terence R. Bogct is n �.= shttreholc�er i�i the taw fi��rn ��` �? *� Richarcis, Watson fa Ger- �� � shon anc� worhs iii their �.� -� -� � , z ,: r Los Angeles office. His ? � prnctice ernpllnsizes Fi7st �" � Amendment law. He is atso ciry atton�ey for t�ae City of Westict]ze ViIinge, CA. � PLANN1i�1G CONtMt5SI0iVER5 JOURNAt / NUMSER 51 / SU�tMER 2003 r ! ��=`;: