4th Circuit upholds N.C. city’s adult-business law

Friday, June 12, 2009

Adult businesses are not entitled to challenge whether they cause adverse effects in their neighborhoods after a new zoning law has been enacted, a federal appeals court has ruled.

The ruling by a 4th U.S. Circuit Court of Appeals panel means that even if an adult business that opened before a zoning change does not cause harmful community effects for a period of years, it has little if any First Amendment recourse once the zoning law has gone into effect.

In 1994, the city of Charlotte, N.C., passed a zoning law that restricted the locations of adult businesses. The law said existing adult businesses had eight years to comply with the ordinance, which prohibits them from locating within 1,500 feet of any residential neighborhood, school, church, child-care center, park or playground. It also prohibits an adult business from locating within 1,000 feet of any other adult business. City officials justified the zoning law by invoking the secondary-effects doctrine, which holds that adult businesses cause harmful side effects such as increased crime and decreased property values.

Independence News, an adult bookstore, and the Carousel Club, an establishment featuring live entertainment, opened in 1993 in a location that a year later was prohibited by the new law. In 2001 — as the eight-year deadline was approaching — city officials sent notices to the two businesses, telling them they would need to relocate to comply with the zoning law.

The businesses sued in federal court, contending that the zoning law violated their First Amendment rights. Part of their claim was that they should have a right to introduce evidence showing they did not cause harmful effects since the law went into effect.

The businesses introduced evidence that the property values near their businesses had actually increased and that there had been no sex-related crimes near their businesses. A federal district court rejected the First Amendment-based claims.

On appeal, a three-judge panel of the 4th Circuit affirmed the lower court decision. In its June 3 opinion Independence News v. City of Charlotte, the appeals court found no right allowing the businesses to introduce data showing that they did not cause harmful secondary effects. The appeals court wrote that “we are not aware of — and Appellants do not point us to — any Supreme Court or federal appellate court opinion allowing such a challenge.”

According to the 4th Circuit, all city officials must do with respect to secondary effects is show that they reasonably believed secondary effects to be a problem when they passed the ordinance. “Thus, when cities exercise their power to zone the location of adult establishments, they need not show that each individual adult establishment actually generates the undesired secondary effects,” Judge Karen J. Williams wrote in her opinion for the panel. “What matters here is whether the City had a sufficient evidentiary basis for adopting the ordinance in 1994.”

Williams concluded that “we simply do not see how the Constitution requires a zoning board to consider whether an adult business actually generates secondary effects when deciding whether to grant that establishment a variance.”

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