Regulating Sexually Oriented Businesses in Small Towns: Practical Tips and Preventive Medicine

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 10 Pg. 85
• Pages: 85
• Publication year: 2000

29 Colo.Law. 85 Colorado Lawyer 2000.

2000, October, Pg. 85. Regulating Sexually Oriented Businesses in Small Towns: Practical Tips and Preventive Medicine

---

85

Vol. 29, No. 10, Pg. 85

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 85]

Specialty Law Columns
Government and Administrative Law News
Regulating Sexually Oriented Businesses in Small Towns Practical Tips and Preventive Medicine
by Patricia C. Tisdale

Some small towns may still be on the fence about whether to regulate sexually oriented businesses ("SOBs"),1 perhaps because they have none to regulate. Public officials who think their communities do not need such regulations should think again. The town of Frisco?s ("the Town" or "Frisco") recent experience regarding this type of business illustrates the need for all communities, large and small, to anticipate the possibility that SOBs may try to locate within their borders and plan accordingly

Frisco?s need for SOB regulations became clear in 1999 when an individual applied for a business license to operate a "topless" cabaret in the heart of the Town?s historic Main Street business district. The Town rejected the application because it was incomplete and began drafting appropriate regulations after enacting (as an emergency ordinance) a temporary moratorium on the establishment of new SOBs. The Town adopted a licensing and a zoning ordinance after approximately seven months of (1) detailed study of the Town?s zoning, geography, and existing development patterns (2) drafting and work sessions; (3) neighborhood meetings; and (4) public hearings before the Planning Commission and the Town Council.

Throughout this period, the Town Council endured criticism for not having anticipated the arrival of SOBs. Moreover, the would-be cabaret owner sued the Town in federal court over the moratorium. The neighborhood meetings and public hearings played to emotional crowds. Some people argued for unbridled First Amendment rights, others for a complete ban on SOBs, and a few for the middle ground the ordinances represented. All of this controversy was reported widely in both the Summit County and Denver metro area newspapers, subjecting Frisco?s ordinances to much public scrutiny.

What lessons can other small-town communities learn from Frisco?s experience? Most large cities in Colorado have adopted comprehensive SOB licensing and zoning regulations. A number of these cities also have defended their ordinances in state and federal court, thus providing guidance to smaller communities about what can and cannot be incorporated into regulations that withstand legal challenges. Small towns can and should borrow from the experiences of larger cities2 when drafting their own regulations. However, small-town communities should not overlook the unique challenges they face in crafting appropriate regulations.

This article discusses drafting legislation regulating SOBs and explains the licensing requirements for these establishments. This article also describes how permissible locations for SOBs may be identified and limited. Finally, this article addresses other related regulations, banning public nudity as an alternative to regulating SOBs, liquor licensing, moratoria, and the importance of a legislative record supporting these ordinances.

Basic Principles

Like it or not, the U.S. Supreme Court has afforded marginal First Amendment protection to SOBs, thusraising the standard by which the validity of SOB regulations must be measuredbeyond the rational basis test.3 If an SOB regulation is aimed primarily at the suppression of First Amendment rights, it is considered to be content-based and presumptively violates the First Amendment, unless it can survive strict judicial scrutiny. On the other hand, if the regulation?s predominant purpose is to ameliorate adverse secondary effects of speech-related activity, the regulation is content-neutral and will therefore be measured against the traditional content-neutral time, place, and manner standard.4 The regulation will be valid as long as it is tailored narrowly to serve the government?s interest and leaves open sufficient alternative means of communication.5

It is not permissible expressly to exclude all SOBs from a community, and ordinances that have the practical effect of doing so will be invalidated.6 Therefore, small towns, just like large cities, must provide a realistic opportunity for SOBs to locate within their municipal limits. This can be especially difficult in small towns in which limited commercially zoned land is available.

Licensing

SOBs may be...