Federal judge: Arizona can limit hours of operation for adult businesses

Wednesday, October 13, 1999

A federal judge recently upheld an Arizona law that limits the hours of operation of adult businesses.

The law, which went into effect in August 1998, requires sexually oriented businesses to close between 1 and 8 a.m. Monday through Saturday and 1 a.m. and noon on Sunday.

A group of adult entertainment businesses sued the city of Phoenix, challenging the law on First Amendment grounds. The businesses contended the law was an attempt to punish expressive conduct that lawmakers disfavored.

However, Phoenix city officials countered that the law was passed not out of dislike for the expression at adult businesses, but to combat certain harmful, secondary effects allegedly associated with adult businesses. These include crime, prostitution, public sexual indecency, litter, traffic, lowered property values, depletion of police time and resources, urban redevelopment and drugs.

In September 1998, U.S. District Judge Earl Carroll granted a temporary restraining order, preventing city officials from enforcing the law.

But late last month Carroll refused to enter a preliminary injunction against the state law, ruling that it was a content-neutral method of combating secondary effects.

“Because the statute at issue here was enacted not to suppress the expressive conduct at the sexually-oriented businesses, but to ameliorate the harmful secondary effects commonly associated with adult businesses, the statute is deemed content-neutral,” Carroll wrote in his Sept. 30 decision.

The businesses challenged the sufficiency of the legislative record — the amount of evidence cited by legislators when passing the law — with regard to secondary effects. Richard Hertzberg, an attorney for seven of the challenging businesses, said: “Our primary issue is whether there was a sufficient legislative record and evidence that there are increased secondary effects during the nighttime hours when the businesses have to be closed.”

Carroll wrote in L.J. Concepts, Inc. v. City of Phoenix that “while the legislative record is not extensive in this regard, it does contain evidence of testimony, fact sheets, and letters regarding studies and cases from other jurisdictions that sufficiently illustrates a logical relationship between the statute enacted and the intent to combat the secondary effects of sexually-oriented businesses.”

Because the judge determined the law was content neutral, he then examined whether the law was narrowly tailored to serve a substantial government interest and whether it allowed alternative avenues of communication.

Carroll found that the law was narrowly tailored by citing numerous cases from other jurisdictions which reached the same conclusion.

With respect to alternative avenues of communication, Carroll noted that the businesses could remain open 17 hours a day six days a week and 13 hours on Sunday.

“The court finds that the statute in question was enacted with the primary purpose of ameliorating the adverse secondary effects of sexually oriented businesses,” Carroll wrote. “As such, the statute passes muster under the intermediate scrutiny standard of review.”

James Hays, assistant city attorney for Phoenix, called the decision a “nice win” for the government. “This law was passed because these businesses cause adverse secondary effects on neighborhoods and surrounding areas,” he said.

Hays said that the city attorney's office was in the process of reviewing the decision and determining when to begin enforcing the law. “We are going to have to prepare an inventory of the businesses in an attempt to systematically ensure that they are in compliance with the law.”

Hays says that will be no small feat as there are approximately 37 topless bars, 15 adult cabarets and 120 escort businesses that the law affects.

Hertzberg said that the decision would be appealed to the 9th U.S. Circuit Court of Appeals.