Constitutional Zoning Law & Secondary Effects

Editor’s note: The below was primarily prepared by our remote research staff, who happen to be professional researchers. They require that their identities not be revealed for fear of losing their “day jobs.” The very fact that researchers, all of people, feel they may lose their jobs … I think speaks volumes as to what this debate is ultimately all about: the “politically correct” or "appropiate" suppression of unpopular, if not downright offensive, ideas and expression, and the coercive effect it has upon public discourse -- an element essential, I think, for the health, vigor and maintenance of a democratic society.

To combat the development of adult businesses, many cities have relied on the crude instrumentality of zoning laws to protect their communities from the adverse secondary effects of these businesses. Supported by the Supreme Court’s opinion in City of Renton v. Playtime Theatres past court decisions have often ruled in the favor of the cities. However, things have begun to change. In City of Los Angeles v. Alameda Books the Supreme Court ruled that cities can “rely on evidence reasonably believed to be relevant to demonstrate a connection between adult businesses and adverse secondary effects.”[1] However, the Court also demanded more from the cities in terms of the evidence used to demonstrate this correlation between adult businesses and secondary effects. “Cities can no longer rely on the ‘reasonable belief’ argument when the affected businesses produce evidence casting doubt on the regulations’ effectiveness, underlying rationale, or tendency to reduce speech.”[2] In short, with respect to zoning measures which banish adult establishments from the proximity of most of their customers, as well as residences, churches, etc., cities only have the benefit of a “rebuttable presumption” that an adult establishment will cause adverse secondary effects to an unreasonable extent. Several recent court cases have highlighted the more restrictive criteria that cities must meet.

In the case of Daytona Grand v. City of Daytona Beach a United States District Court ruled in favor of a nude dancing club. In this case, the plaintiffs provided expert testimony (Drs. Linz and Fisher, whose background the court ruled established their expertise in secondary effects) that showed “the City’s pre-enactment evidence consists either of purely anecdotal evidence or opinions based on highly unreliable data. Most notably, the City’s evidence lacks data which would allow for a comparison of the rate of crime occurring in and around adult entertainment establishments with the rate of crime occurring in and around similarly situated establishments.”[3] The experts for the plaintiffs also conducted their own secondary effects studies of crime around adult cabarets in Daytona Beach, and they did not find an increase in crime linked to the cabarets. The court ruled, “In failing to renew support for a theory justifying its ordinances, the City leaves the Court with only one option: to declare Ordinances 81-334 and 02-496 unconstitutional and strike them accordingly.”[4]

Another recent case was R.V.S., L.L.C. v. City of Rockford (7th Circuit 2004). In this case, the city of Rockford, IL passed an ordinance forcing exotic dancing nightclubs to apply for a special permit and not operate within 1000 feet “‘of a church, school, residential district or another exotic dancing nightclub.’”[5] Again, the court ruled in the favor of the plaintiffs. The court’s decision was based on “Rockford does not identify any studies, judicial opinions, or experience-based testimony that it considered in adopting the Ordinance…. Most of the Rockford’s evidence, at least as presented to date, does not appear to be directly relevant to the type of entertainment that Rockford seeks to regulate…. Additionally, the Ordinance does not appear to be narrowly tailored to affect a category of business establishments shown to produce unwanted secondary effects—or even establishments that could conceivably produce them.”[6]

In addition, there is less and less evidence that adult business necessarily tend to cause adverse secondary effects. The United States 11th Circuit Court of Appeals remarked in a recent case, Peek-A-Boo Lounge v. Manatee County: “The evidence in the record relating to conditions in Fulton County shows unequivocally that property values in neighborhoods adjoining the Clubs have increased during the time the Clubs have been in existence, and that surrounding buildings show no signs of blight, or lack of physical maintenance. Moreover, the Fulton County police study found greater reported crime connected with establishments that served alcohol but did not feature adult entertainment. In other words, local studies commissioned both by the Clubs and the Board found no evidence of the secondary effects with which the Board was purportedly concerned. The question thus becomes, was it reasonable for Defendants to ignore relevant local studies and rely instead upon remote foreign studies in determining whether adverse secondary effects were attributable to the Fulton County Clubs?”[7]

The plaintiff, Peek-A-Boo Lounge, presented three studies that demonstrated that the Lounge did not cause adverse secondary effects. The studies were:

Dr. Terry A. Danner, Chair of the Department of Criminology at St. Leo University, conducted a study utilizing the County’s own crime statistics that examined the criminogenic effects of the Appellant’s specific businesses and found that Appellants businesses did not cause such effects. Dr. Randy D. Fisher, Associate Professor of Psychology and Director of the Survey Research Laboratory at the University of Central Florida, prepared a study titled “Evidence for the Adverse Secondary Effects of Adult Entertainment: The Manatee County Record,” which examined the record submitted by the County in support of Ordinance 99-18 and concluded that because “the only statistical data provided [in the record] showed lower rates of crime . . . [and] substantial increases in property values, both in the long run and in the shorter run, in the areas around the existing adult businesses,” the specific evidence relating to the Appellants’ businesses contradicted any suggestion that “the two existing adult businesses in Manatee County have ‘adverse secondary effects.” Finally, Mr. Richard Schauseil, a licensed Florida real estate agent, conducted an extensive “Market Study and Report” on the effects of Appellants’ businesses on neighboring properties which found that there were “absolutely no signs of any negative effects on adjoining property values or conditions” resulting from Appellants’ businesses.[8]

Once again, the city did not (or was unable) to provide any data that could contradict the adult business' findings, and the court again ruled in favor of the adult business.

Dr. Daniel Linz (University of California, Santa Barbara) and Dr. Bryant Paul (Indiana University) have published several papers on adult businesses and secondary effects. Their research has found that the methodology of many secondary effects studies is flawed;[9] that there was less crime around adult businesses in Charlotte, NC than control areas;[10] and there was not a crime problem at peep show establishments in San Diego.[11]

In a couple of federal circuits, the courts seem to follow the Alameda Books opinion in words more than spirit, particularly the 10th Federal Circuit, which includes states like Kansas. Was it Kansas where in the public schools they banned the teaching of evolution and required creation theory to be taught?

Nonetheless, the above court cases and studies highlight that most cities at least can no longer rely on past studies and their pre-existing impressions to find that all adult establishments, regardless of how sensitive to the community and responsibly operated they are, tend to cause adverse secondary effects to an unreasonable degree. Cities are being drawn into lengthy and expensive legal battles to fight a problem that, as these studies suggest, may not be any more problematic than bars and other entertainment establishments may be.

Footnotes:

[1] Lawlor, James. “Adult Business Rules Subject to Closer Scrutiny.” Planning 72.4 (April 2006): 49.
[2] Ibid. 49.
[3] Daytona Grand v. City of Daytona. 410 F.Supp.2d 1173. (M.D. Fla. 2006).
[4] Ibid.
[5] R.V.S., L.L.C. v. City of Rockford. 361 F.3d 402. (7th Cir. Ill. 2004).
[6] Ibid.
[7] Flanigan’s Enters., Inc. v. Fulton County, Ga. 242 F.3d 976, 986. (11th Cir. Fla. 2001).
[8] Peek-A-Boo Lounge v. Manatee County, Fl. 337 F.3d 1251. (11th Circ. Fla. 2003).
[9] Bryant Paul, Daniel Linz, and Bradley J. Shafer. “Government Regulation of "Adult" Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects.” Communication Law & Policy 6 (2001): 355.
[10] Linz, Daniel, et. al. “An Examination of the Assumption that Adult Businesses Are Associated with Crime in Surrounding Areas: A Secondary Effects Study in Charlotte, North Carolina.” Law and Society Review 38 (March 2004): 69.
[11] Linz, Daniel, Bryant Paul, and Mike Z. Yao. “Peep Show Establishments, Police Activity, Public Place, and Time: A Study of Secondary Effects in San Diego, California.” Journal of Sex Research 43.2 (May 2006): 182.