Local officials must make room for adult businesses

Thursday, August 5, 2010

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Too many cities and counties across the country have overly restrictive zoning laws that impose excessive distance requirements upon adult businesses.

Although government officials understandably wish to keep adult establishments a certain distance from schools, churches and neighborhoods, courts have held that the First Amendment requires that they allow such businesses places to operate. (The U.S. Supreme Court, for instance, in Schad v. Borough of Mount Ephraim (1981), said government bodies couldn’t ban adult businesses that offer live entertainment.)

In the 1970s, local officials began searching for ways to regulate adult businesses that featured non-obscene performance dancing. Even though the businesses catered to consenting adults, officials often argued that such businesses could harm communities by creating so-called harmful secondary effects — such as increased crime and decreased property values.

Local governments often turned to zoning mechanisms to regulate the location of such businesses. The most common zoning tool was to disperse adult businesses to prevent them from locating close enough together to create “red-light districts.”

In Young v. American Mini Theatres (1976), the Supreme Court narrowly approved a Detroit city law that barred adult businesses from locating within 1,000 feet of two other adult businesses or with 500 feet of a residence. The Court ruled 5-4 that the ordinance was not designed to silence offensive expression but to prevent the secondary effects allegedly associated with the businesses.

Ten years later in Renton v. Playtime Theatres, (1986), the Court upheld a Renton, Wash., zoning ordinance that prohibited adult businesses from locating within 1,000 feet of a residence, church, park or school. Although the adult business lost the case, the Court did say that municipalities must offer “reasonable alternative avenues of communication” to enterprises offering adult entertainment. They have to be allowed places to do business, in other words.

Since these Supreme Court decisions, many cities and counties have followed the pattern of creating distance restrictions of between 500 and 1,000 feet. Under a standard ordinance, adult businesses cannot locate within 500 feet of another adult business, a school, a church, a playground or other place where lots of kids are likely to go.

But those “reasonable alternative avenues of communication” mean that under the First Amendment, local zoning laws cannot be so restrictive as to amount to an outright ban on adult businesses. The laws cannot make it unreasonably difficult for a prospective adult business owner to find places to locate. Yet in many communities, such business owners find it tough going to open their doors.

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