Blog: Adult business must have place to relocate

Friday, March 12, 2010

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When cities and counties pass restrictive zoning laws that force adult businesses to relocate because they’re too close to a school, playground, church or another adult business, they must offer places for the businesses to relocate. In legal terms, they must give the businesses “alternative avenues of communication.”

The New York-based 2nd U.S. Circuit Court of Appeals decided March 10 in TJS of New York v. Town of Smithtown that an adult business can challenge the sufficiency of the alternative sites when it files its legal challenge, not only when the zoning law was passed. The case now goes back to the federal district court.

This question is important because sometimes there is a delay of many years between when a zoning law is passed and when a particular adult business challenges the law. When a city passes a law that forces a business to move, there is generally a so-called “amortization” period, which gives the business a period of time (often several years) to relocate.

But what happens to the adult business if the city doesn’t have many alternative sites for relocation? What happens if new owners purchase the adult business and there isn’t a suitable location anywhere in town?

As the 2nd Circuit noted, “the underlying question in adult zoning cases is whether the challenged restriction leaves open alternative avenues of communication.”

Some government officials have argued, as officials in Smithtown, N.Y., have, that in assessing alternative locations, the court should only consider how many sites were available when the law was passed. The adult business owner — TJS of New York Inc. — countered that examining locations only when the law is passed is too restrictive, because over time many once-available places become unavailable.

The 2nd Circuit agreed, writing that “the First Amendment does not allow courts to ignore post-enactment, extralegal changes and the impact they have on the sufficiency of alternative avenues of communication.” The court pointed out that sometimes many sites available at the law’s passage become unavailable, as more businesses come to town and the population grows. (The opinion also acknowledged that sometimes more sites become available, depending on development patterns.)

The 2nd Circuit’s decision differs from those in some other courts, which have maintained a myopic focus on the time of a zoning law’s passage. The 2nd Circuit rightly reasoned, however, that if the law focused only on the number of sites available at the law’s passage, then a law could be “immune from First Amendment challenge” as long as there were initially many available locations — even if those sites all became unavailable later.

Even though this decision is, on balance, a positive development, this area of the law is still tough for adult businesses. That’s because the law does not require the alternative sites to be profitable or commercially viable. As the 2nd Circuit wrote, “alternative sites need only be available, not attractive.”

In its opinion, the 2nd Circuit also said that “over the past few decades, adult entertainment establishments have played a disproportionately prominent role in First Amendment doctrine.”

This may be true, but that is often the fault of government officials who continually seek to impose a host of restrictive zoning laws in efforts to relegate adult businesses to less-desirable locations. If government officials would not pass increasingly restrictive zoning and licensing laws, then adult businesses wouldn’t have to file so many First Amendment challenges.

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