Massachusetts judge refuses to enforce town’s adult-business zoning law

Thursday, November 16, 2000

A state judge has issued a preliminary injunction preventing Reading,
Mass., from forcing the only adult business in town to relocate, citing First
Amendment concerns with a zoning ordinance there.

Video Expo, which sells adult books and videos, opened in May 1996. In
September 1996, town officials passed a zoning ordinance severely limiting
where adult businesses could locate.

The zoning law relegated adult businesses to certain industrial areas
of town and prohibited them from locating within 750 feet of “any lot”
containing a church, school, day-care center, park, playground, public library,
cultural facility, museum or other similar site.

Town officials brought enforcement proceedings against the owners of
Video Expo in 1997, because the store continued to do business in a
non-industrial area of town. The owners responded by challenging the law on
First Amendment grounds, claiming it discriminated against their business based
on the content of their expression.

Town officials countered that the law was necessary to combat certain
harmful secondary effects associated with adult businesses, including urban
blight, increased crime and decreased property values.

Justice James F. McHugh ruled in May 1998 that “a desire to head off
the secondary effects of ‘adult uses’ … is a substantial and important
governmental interest.” He also found that the law was “truly aimed” at the
secondary effects rather than the suppression of speech.

However, McHugh still ruled that the law violated the First Amendment,
because it failed to provide “alternative channels of communication” for adult
businesses like Video Expo. Citing evidence that under the zoning law only 0.6%
of the city’s land was available for adult businesses, the judge concluded that
the zoning measure effectively forecloses “any opportunity for speech of the
type in which Video Expo wishes to engage.”

The judge concluded that the law had too many constitutional

Reading officials then redrafted the law to provide a few more
potential locations for adult businesses. The new ordinance also defined adult
businesses as those which derive 20% of their gross revenue from the sale of
adult-oriented expression, or which contain 20% of adult material in their

Town officials then amended their original complaint against Video
Expo and sought to enforce its revamped zoning law. If town officials could
enforce the revised ordinance, Video Expo would have to relocate and obtain a
special permit to operate. The owners of the adult business once again
countered that the ordinance violated the First Amendment.

On Nov. 6, state Judge Allan van Gestel sided with Video Expo in
Town of Reading v. Santorelli by
granting a preliminary injunction to halt enforcement of the new law.

The judge noted that the amended ordinance still provides that less
than 1% of the total acreage in the town is “potentially available” for adult

“Because of the constitutional issues involved, the burden rests on
the Town to ensure that its regulatory scheme does not unreasonably foreclose
avenues for communication of the material Video Expo seeks to sell,” van Gestel
wrote. “The Court, therefore, determines that the restrictions contained in and
resulting from the By-Law as it may be applied to Video Expo may deny it
reasonable alternative avenues of communication contrary to the dictates of the
United States and Massachusetts Constitutions.”

“The reality is that the Constitution provides that people are allowed
to convey non-obscene, sexually explicit material to people and that the
expression cannot be zoned away,” said Roger Wilcox, attorney for Video

“Our position is that there are simply not enough available locations
to engage in protected expression,” Wilcox said.

The town can either appeal the decision or proceed to trial.

Wilcox said he was “confident” that if the case goes to a jury that
Video Expo would prevail.

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