U.S. Supreme Court asked to review adult entertainment decision

Friday, September 24, 1999

Jacksonville, Fla., officials have asked the U.S. Supreme Court to review a federal appeals court ruling striking down provisions of their adult entertainment zoning law on First Amendment grounds.

Lady J. Lingerie, Inc. successfully argued before the 11th U.S. Circuit Court of Appeals that the city's zoning law violated the First Amendment.

The law required adult businesses to apply for a special permit if they wanted to locate in an area of the city other than the area known as the Commercial/Central Business District (CCBD zone).

The problem for potential adult business owners was that there were only two available sites in the CCBD zone. For this reason, the city allowed businesses to apply for a special permit to operate in another area of the city known as the Commercial/Community/General-2, or CCG-2, zone. There are over 90 sites available to adult business operations in CCG-2.

However, the special permit law provided that city officials could issue a “zoning exception” only if a business met numerous conditions, including not having “an environmental impact inconsistent with the health, safety and welfare of the community.”

Lady J. Lingerie contended that the city's zoning law violated the First Amendment because officials had unbridled discretion to deny special permits and because the ordinance failed to stipulate that city officials make licensing decisions within a particular time frame.

In May, the 11th U.S. Circuit Court of Appeals ruled in Lady J. Lingerie, Inc. v. Jacksonville that the city's licensing scheme was an unconstitutional prior restraint, agreeing with the plaintiffs that:

  • The list of exceptions in the zoning law gave officials too much discretion to deny licenses.
  • The zoning law did not ensure prompt decision-making by city officials.

The 11th Circuit determined that the exceptions in the zoning law “empowered the zoning board to covertly discriminate against adult entertainment establishments under the guise of general 'compatibility' or 'environmental' concerns.”

The 11th Circuit also wrote that the “ordinance's failure to require a deadline for [a licensing] decision renders it unconstitutional.”

“To conclude, we want to emphasize that it is not difficult to draft an ordinance that addresses the harmful secondary effects of adult businesses without running afoul of the First Amendment,” the court wrote. “This ordinance, however, is unconstitutional because it channels nearly all adult entertainment establishments through the exceptions process.”

Last month, city officials decided to appeal to the U.S. Supreme Court. They argued that the high court should review the 11th Circuit's decision in part because it conflicts with a decision by the 4th Circuit's decision in Steakhouse, Inc. v. City of Raleigh.

In the Steakhouse case, the 4th Circuit ruled that a Raleigh, N.C., ordinance mandating special permits for adult entertainment businesses does not infringe on First Amendment freedoms.

Though no one can predict when the high court will accept a case for review, litigants have a better chance if they can show a split of opinion among lower courts.

However, Gary Edinger, attorney for Lady J. Lingerie, doubts the U.S. Supreme Court will review the 11th Circuit's decision. “The decision by Jacksonville officials to appeal this decision was made as much for political reasons as legal ones,” he said.

Edinger says that Jacksonville city officials harbor an “anti-adult entertainment attitude” and do not want to appear soft with respect to the regulation of adult businesses.

“This law, as the 11th Circuit said, allowed city officials to covertly discriminate and deny or delay zoning permits for adult businesses simply out of dislike for adult entertainment,” he said.

The attorney handling the case for Jacksonville could not be reached for comment.