All adult businesses not the same, says attorney

Thursday, March 26, 1998

An attorney for an adult bookstore in Aurora, Colo., contends his client—a store that sells adult novelties, magazines and videos—should not be treated the same as peep shows and strip clubs. A federal appeals court disagreed.

First Amendment attorney Arthur Schwartz argued recently before a three-judge panel of the 10th Circuit Court of Appeals that Z.J. Gifts does not lower property values, spread sexually transmitted diseases, cause increased crime or lead to other harmful, “secondary” effects commonly associated with sexually oriented businesses.

The problem facing Z.J. Gifts is a restrictive city zoning law that groups together all adult-oriented businesses as having secondary effects, even though the businesses are very different in nature.

“People actually go to peep shows and adult movie theaters and view the material on the premises. With the business I represent all the material is viewed off-premises. It should be treated differently under the secondary-effects rationale,” Schwartz said.

Municipalities often lump all sexually oriented businesses together when enacting a zoning law relegating adult businesses to certain industrial areas of the cities.

The city of Aurora enacted such a law restricting adult businesses from locating within 1,500 feet of churches, schools, residential districts or dwellings.

Schwartz managed to convince a federal trial court judge in Z.J. Gifts v. City of Aurora that the zoning provision violates the free-speech rights of his client. However, last month the 10th Circuit disagreed.

The court wrote: “We are satisfied that differences in the mode of delivery of sexually oriented materials are constitutionally insignificant for purposes of determining an ordinance's content-neutrality.”

The appeals court concluded that the zoning law “promotes the city's well-established interest in regulating harmful secondary effects caused by sexually oriented businesses reasonably similar to those studied by other municipalities without unnecessarily regulating dissimilar businesses.”

Schwartz has filed a motion for the full panel of the 10th Circuit to reconsider the earlier decision. If he loses that motion, he says he “will probably take the case up to the United States Supreme Court.”