Missouri appeals court backs county’s restrictions on adult businesses

Wednesday, March 29, 2000

St. Louis County, Mo.’s zoning and licensing laws regulating the location of adult businesses do not violate the First Amendment, a state appeals court has ruled.

In 1995, St. Louis County amended its zoning ordinance to prohibit businesses that sell sexually explicit materials from locating within 1,000 feet from any church, school or park. The zoning law also restricted such businesses from locating within 300 feet of any residential zone.

In May 1997, the county filed a lawsuit against B.A.P., a corporation that runs a business called California Erotic Novelties. The county filed the lawsuit because the adult novelty shop was within 1,000 feet of a church. B.A.P. filed a counterclaim, alleging that the zoning law infringed on its First Amendment free-expression rights.

B.A.P. also challenged the constitutionality of the county’s licensing ordinance for sexually oriented businesses, which was enacted in July 1997. That ordinance provided that sexually oriented businesses could not obtain a license to operate within 1,000 feet any church, school, hospital, day care, park, museum or another sexually oriented business.

In 1999, a trial judge ruled for the county, finding that both the zoning and licensing laws were constitutional.

On appeal, the Missouri Court of Appeals agreed in St. Louis County, Missouri v. B.A.P.
B.A.P. had argued that the ordinances were “content-based legislation enacted for the predominate purpose of restricting sexually-explicit expression.”

The county, however, countered that its main purpose for the legislation was not to suppress free expression but to combat certain harmful secondary effects allegedly associated with sexually oriented businesses.

The appeals court first examined whether the ordinances should be analyzed as content-based or content-neutral. In First Amendment jurisprudence, the distinction is important because content-based laws are subject to a much higher degree of judicial scrutiny.

The appeals court relied on the U.S. Supreme Court’s 1985 decision in Renton v. Playtime Theatres, Inc. for the proposition that location provisions affecting adult businesses are to be considered content-neutral.

B.A.P. argued that the laws were content-based because the county officials did not present enough evidence that they actually considered the secondary effects which sexually oriented businesses would have on their community.

However, the county officials claimed that the county’s Department of Planning had considered several other municipalities’ studies down on the secondary effects caused by sexually oriented businesses.

“Based on this record, we conclude that, in enacting the location provisions in the zoning and licensing ordinances, (the) County relied on evidence of adverse secondary effects of adult-oriented businesses or sexually oriented businesses … reasonably believed to be relevant to the County’s problems,” the court wrote in its March 21 opinion.

The appeals court also noted that the county officials “need not wait for problems pertaining to adult businesses to exist before addressing them.”

B.A.P. also argued that the trial judge erred because the zoning and licensing ordinances failed to provide reasonable alternative avenues of communication as required by the Supreme Court’s Renton decision.

B.A.P. argued that by passing these ordinances county officials were attempting to shut down sexually oriented businesses by making it difficult for prospective owners to find a place to legally operate such businesses.

However, the appeals court rejected this argument, writing: “Importantly, in considering availability, we are mindful that there is no constitutional requirement that a specific proportion of land or a certain number of sites be available to adult businesses to satisfy this element of free speech analysis.”

Jonathan Marks, an attorney representing B.A.P. said that he would file a motion for rehearing before the Missouri Court of Appeals and a motion for transfer the case to the Missouri Supreme Court. “If necessary, we will take this case all the way to the U.S. Supreme Court,” he said.

The attorney for the county could not be reached for comment.