Chapter 21 First Amendment: Adult Uses

• Library: The Zoning and Land Use Handbook (ABA) (2016 Ed.)

Chapter 21 First Amendment: Adult Uses

A significant difference must be made between those situations where a developer is alleging that a rezoning constitutes a taking without due process or a denial of equal protection and those situations where issues of free speech under the First Amendment are involved. Where the developer is simply arguing that downzoning has been a denial of equal protection, the litmus test for determining the validity of the zoning amendment is to measure whether the rezoning is "arbitrary or irrational." If there is any reasonable basis for the passage of the legislation, then the legislation is to be upheld.¹ This rationale is consistent with the law measuring the validity of a zoning ordinance.²

However, there are those cases that are based on the First Amendment. The test here is far different.³ In the case Genusa v. City of Peoria,⁴ the Seventh Circuit Court of Appeals considered a comprehensive series of ordinances regulating adult book stores. The court held that the zoning provisions of the adult use ordinance requiring that adult uses be separated from one another by a distance of at least 500 feet was constitutional.⁵ The court held unconstitutional certain other requirements, such as a police department investigation into the background of adult book store licenses and a requirement that employees of an adult book store must obtain an employee permit.⁶ The constitutional challenge was predicated on the First Amendment, and where First Amendment rights are involved, the test is not whether there is some reasonable basis for the zoning legislation but whether the restriction imposes an impermissible restraint on the exercise of free speech.

A. Renton—Control and Consideration

The U.S. Supreme Court considered the zoning ordinance of the City of Renton, a small city in the Seattle metropolitan area, that prohibited adult theaters within 1,000 feet of any residential zone, single-family, or multi-family dwelling, church, park, or school. The Supreme Court upheld this regulation as a "content neutral time, place, and manner regulation" because its purpose was unrelated to the suppression of speech and did not regulate a point of view.⁷ The court, in its opinion, relied heavily on Young v. American Mini-Theaters, Inc.,⁸ a case that upheld a de-concentration of adult businesses within the City of Detroit. The zoning ordinance there required a distance of 1,000 feet between adult businesses, and this requirement applied to a number of other businesses, such as hotels and bars. The ordinance also prohibited these businesses from locating within 500 feet of a residential area. In that opinion, the Supreme Court first noted that the ordinance did not regulate free speech because of its viewpoint, and further that adult sexual expression did not have the same protection under the free speech clause that was to be given to political debate. The court upheld the city's adoption of the spacing requirement because it did not suppress speech and was adopted to avoid its "secondary effects." It broadly referenced secondary effects to preserving the character of city neighborhoods or as expressed by the court "the city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect."⁹

In City of Renton v. Playtime Theatres, Inc.,¹⁰ the Supreme Court built on its opinion in Young and provided a more analytical framework for the analysis of zoning ordinances regulating the location of adult uses. An ordinance, which regulated adult uses but was principally designed to address secondary effects of such uses, was upheld. Secondary effects included crime, reduction in property values, the prevention of blight, and the preservation of a certain quality of life within the community. The court set forth the following standards to uphold the ordinance: (1) it does not totally ban adult uses; (2) it is content neutral or is not based upon the content of the regulated speech; (3) the regulation is narrowly tailored to serve a substantial government interest in curbing the adverse second effects; and (4) the ordinance leaves open ample alternative channels for communication.¹¹

B. Secondary Effects

The determination of whether the secondary effects analysis or strict scrutiny will apply requires an analysis into the facts supporting the ordinance. Legislative findings are an important part of upholding the validity of any regulation of adult uses. Whether the municipal ordinance serves a substantial government interest and does not otherwise unreasonably limit alternative avenues of communication depends on "whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance."¹²

It is only necessary that a municipality adopt evidence that applies to it in order to satisfy the legislative finding requirement. In Young an ordinance l imiting the location of adult uses was supported by testimony and articles submitted by urban planners and real estate experts that concluded that having several adult uses bunched together in the same neighborhood adversely affected property values, caused an increase in crime, and encouraged other businesses to move elsewhere.¹³ This same rationale applied to the disbursement of adult uses from Times Square in New York City.¹⁴

While the municipality may undertake its own studies it does not need to do so, as it can rely on studies performed by other cities. In Renton, the city of Renton relied on studies produced by the city of Seattle.¹⁵ The Supreme Court stated:

The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.¹⁶

This does not mean that the municipality may adopt any information. It must apply that information to its own municipality. The standard is not high for municipalities, but they should use care in adopting the ordinance. The Supreme Court in City of Los Angeles v. Alameda Books, Inc.¹⁷ stated the following:

In Renton, we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held that a municipality may rely on any evidence that is "reasonably believed to be relevant" for demonstrating a connection between speech and a substantial, independent government interest. . . . This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance (citations omitted).¹⁸

However, this does not mean that the municipality can also neglect to introduce reasonable evidence into its record before the plan commission or zoning board in adopting the adult use ordinance. In R.V.S., L.L.C. v. City of Rockford,¹⁹ the court held that Rockford's failure to introduce sufficient evidence in the regulation of its adult use rendered the ordinance invalid. The court stated:

The Supreme Court has consistently held, "a city must have latitude to experiment, at least at the outset, and . . . very little evidence is required [to support an ordinance's proposition]." . . . As previously noted, 'a municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest.' However, Rockford has produced little evidence of harmful secondary effects connected to Exotic Dancing Nightclubs beyond the assumption that such effects exist. While it is true that common experience may be relied upon to bolster a claim that a regulation services a current governmental interest, the experience in this case falls short of satisfying the minimal evidentiary showing required by Alameda Books [supra.] Indeed, while courts may credit a municipality's experience, such consideration cannot amount to an acceptance of an "if they say so" standard.
Rockford does not identify any studies, judicial opinions, or experience-based testimony that it considered in Adopting the Ordinance (citations omitted).²⁰

However, once again, in reviewing the standards of evidence to demonstrate secondary effects, the court has held that the municipality does not need to meet the rigors that are required for scientific testimony to be admitted in...