Adult Entertainment and Zoning: a Starting Point for Adopting or Updating Adult Business Ordinances
| Publication year | 2011 |
| Pages | 30 |
by Teresa L. Watson [1]
I. Introduction
The adult entertainment industry is booming. Since 2006, adult business industry experts report that revenue hovers near $12 billion per year.[2] Though the recent tough economy — along with the proliferation of free websites and pirated videos — may have slowed the growth of the industry, adult entertainment remains a lucrative market.[3]
Many local governments in urban areas of the state have adopted ordinances regulating sexually-oriented businesses. Increasing numbers of rural cities and counties are following suit as it becomes apparent that some adult businesses — primarily retail — have targeted truckers and other interstate travelers as an important customer base. This brand of adult business has been dubbed "freeway porn."[4] Adult stores "are increasingly common on the nation's rural Interstate highways, where they find relatively cheap land, few zoning restrictions and a steady stream of potential customers."[5]
In 2003, a national adult retail chain arranged to purchase an empty building along Interstate 70 in Dickinson County, Kan. A semi-trailer truck full of fixtures and merchandise arrived in the middle of the night and employees quickly set up shop. The next morning, surprised citizens of Dickinson County discovered that The Lion's Den Adult Superstore was open for business. It was just outside the Abilene city limits and directly across the interstate from a candy manufacturing facility — a popular destination for passing tourists and grade school field trips.
Dickinson County adopted a series of adult business ordinances following the opening of the store. The Lion's Den immediately challenged them, and the county was obliged to spend the next several years defending the ordinances in federal court. The case was ultimately settled and the ordinances remain in place. Dickinson County is not alone as a number of local governing bodies in Kansas have litigated challenges to adult business ordinances.[6]
Each city and county government must evaluate whether it needs and wants ordinances regulating sexually-oriented businesses. If so, counsel to the governing body must draft an ordinance that contains the regulations desired in a manner consistent with the constitutional requirements set out by the courts. This is complicated by fact-driven decisions that vary by federal circuit and seem to ebb and flow over time.[7] Even if your municipal client has an ordinance in place, it is a good idea to review its provisions to make sure it is complete and remains relatively safe from challenge under more recent case law.
This article summarizes the law as it pertains to the regulation of adult businesses. Part II provides some background regarding relevant Kansas statutes. Part III explores U.S. Supreme Court precedents interpreting the constitutional requirements for the regulation of adult businesses. Finally, Part IV reveals how the constitutional requirements have been interpreted and applied by the Tenth U.S. Circuit Court of Appeals.
II. Kansas Law
Before exploring the constitutional parameters of regulating adult businesses, it is helpful to be aware of some state law provisions that speak to the ability of local governments to regulate adult businesses.
A. Zoning statutes
K.S.A. 12-770 and 12-771 give cities and counties authority to enact zoning regulations applicable to sexually-oriented businesses. Specifically, they allow the governing body to adopt "reasonable regulations for the gradual elimination of sexually-oriented businesses which constitute nonconforming uses."[8] The regulations must be adopted in the manner prescribed by K.S.A. 12-741 et seq., which governs planning and zoning ordinances in general.
K.S.A. 12-770 defines different types of sexually-oriented businesses, including adult arcades, adult book/novelty/ video stores, adult cabarets, adult motels, adult motion picture theaters, adult theaters, escort agencies, nude model studios, and sexual encounter centers. It also defines terms such as escort, nudity, semi-nude, and specified anatomical areas. These definitions are a good reference point when adopting a local ordinance.
Although these statutes were adopted in 1997,[9] they have not been the subject of any reported state or federal judicial decisions or attorney general opinions. Thus, there is little Kansas guidance regarding the constitutionality of adult business ordinances at the state level. Rather, much of the constitutional guidance has developed over time in the federal courts.
B. Criminal laws
At least two state criminal laws have impacted adult businesses in Kansas. An effort to enforce an alleged violation of criminal laws by an adult business may occur contemporaneously with civil litigation, or in some cases precipitate it. Coordination with state or local law enforcement officials is critical when defending a challenge to local adult business ordinances at or near the time a criminal investigation or prosecution is in process.
1. Regulation of highway signs
In 2006, the Kansas legislature passed SB 35, an act regulating the placement of sexually-oriented business signs on state highways, which was codified at K.S.A. 68-2255.[10] Though enforcement of the statute has been enjoined following a decision by a federal district court in Kansas,[11] the contents of the statute and the successful legal challenge against it are instructive.
The statute prohibits placement of signs advertising adult businesses within one mile of any state highway. There is an exception when the business itself is located within one mile of a state highway, in which case the business may place a maximum of two signs on the exterior of its premises. One sign must give notice that the premises are off limits to minors. The second sign may identify the business by name, street address, telephone number, and operating hours. The second sign cannot be larger than 40 square feet. Violation of the act is a class C misdemeanor, and the attorney general is tasked with representing the state in all proceedings arising out of the statute.[12]
The sign statute defines sexually-oriented businesses more generally than the zoning statute, K.S.A. 12-770. In K.S.A. 68-2255(a)(4), a "sexually-oriented business" is defined as one that offers patrons "goods of which a substantial portion are sexually-oriented materials." Further, a business is presumed to be a sexually-oriented business when "more than 10% of display space is used for sexually-oriented materials."[13] K.S.A. 68-2255(a)(5) defines "sexually-oriented materials" as "textual, pictorial or three dimensional material that depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a way which is patently offensive to the average person applying contemporary adult community standards with respect to what is suitable for minors." The sign statute also articulates the government interests supporting the regulation of adult business signs, which include: "(1) To mitigate the adverse secondary effects of sexually-oriented businesses; (2) to improve traffic safety; (3) to limit harm to minors; and (4) to reduce prostitution, crime, juvenile delinquency, deterioration in property values, and lethargy in neighborhood improvement efforts."[14]
The statute was challenged by The Lion's Den store located in Dickinson County.[15] The Lion's Den has at least three large billboards along Interstate 70 to advertise its "Adult Super-store."[16] A federal district court in Kansas granted plaintiff's request for a preliminary injunction prohibiting enforcement of K.S.A. 68-2255 because it found plaintiff was likely to succeed on the merits of its claim.[17] In so holding, the court applied the test for evaluating commercial speech, including billboards, set forth by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commn.[18] The court concluded that the signs were protected expression,[19]and the state had proven substantial government interests,[20]but the regulation did not advance the government interest asserted,[21] and it was more extensive than necessary to serve the interest.[22] The court said: "Assuming signs and outdoor advertising for sexually-oriented businesses increase the chances that minors will attempt to patronize those businesses, there is no evidence of a "˜direct and material link' to an all-out ban on signs, including those that merely include the name and location of the business."[23]
Following this decision, the state of Kansas agreed to submit to the court's judgment that K.S.A. 68-2255 is unconstitutional under the First and Fourteenth Amendments for the reasons set forth in the opinion. This was apparently in exchange for plaintiff's agreement to waive its claim against the state for attorney fees and costs. The court entered an order permanently enjoining the state of Kansas from enforcing the provisions of K.S.A. 68-2255.[24]
2. Obscenity
K.S.A. 21-4301 prohibits promoting obscenity and K.S.A. 21-4301a addresses promoting obscenity to minors.[25] Obscenity is defined as any material or performance that "[t]he average person applying contemporary community standards would find ... appeals to the prurient interest," and contains "patently offensive" representations or descriptions of various sex acts or excretory functions, and "lacks serious literary, educational, artistic, political, or scientific value."[26] The first conviction for violating either of the statutes is a class A nonperson misdemeanor.[27] The second or subsequent conviction for violating K.S.A. 21-4301 is a severity level 9 person felony.[28]A second or subsequent conviction for violating K.S.A. 21-4301a is a severity level 8...
To continue reading
Request your trial