Ord 31-98FAILED ON FIRST READING - 8/18/98
ORDINANCE NO. 31-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CHAPTER 4 "ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS", BY
AMENDING SUBSECTION 4.3.3(AA)(1), TO PROVIDE THAT NO
ADULT ENTERTAINMENT USES SHALL BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON AN ARTERIAL ROAD OR
LOCATED EAST OF THE CSX RAILROAD TRACKS,
ELIMINATING THE DISTANCE REQUIREMENTS FROM ADULT
ENTERTAINMENT ESTABLISHMENTS, AND DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQUIREMENTS FROM USES REGULARLY
FREQUENTED BY THE GENERAL PUBLIC AND PROVIDING AN
EXCEPTION; BY AMENDING SUBSECTION 4.3.3(AA)(3), TO
PROVIDE MEASUREMENT CRITERIA FROM ALCOHOLIC
BEVERAGE ESTABLISHMENTS; BY ENACTING SUBSECTION
4.3.3(AA)(5) TO EXCLUDE ADULT ENTERTAINMENT USES IN
HISTORIC DISTRICTS AND ON HISTORIC SITES OR
PROPERTIES AND PROVIDING AN EXCEPTION; BY ENACTING
A NEW SUBSECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM
FLOOR AREA REQUIREMENTS; BY ENACTING A NEW
SUBSECTION 4.3.3 (AA)(7), TO PROVIDE THAT
PERFORMANCES AND ENTERTAINMENT MUST BE FROM A
STAGE, SETTING MINIMUM STAGE SIZE REQUIREMENTS AND
SEPARATION REQUIREMENTS FOR NUDE OR PARTIALLY
NUDE PERFORMERS/ENTERTAINERS AND EMPLOYEES FROM
CUSTOMERS, PATRONS, PERFORMERS, ENTERTAINERS OR
EMPLOYEES; BY AMENDING SECTION 4.4.9(D),
"CONDITIONAL USES AND STRUCTURES ALLOWED", BY
OMITTING SUBSECTION 4.4.9(D)(1), TO DELETE ADULT
ENTERTAINMENT USES AS CONDITIONAL USES IN THE
GENERAL COMMERCIAL (GC) ZONING DISTRICT; PROVIDING
A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND
AN EFFECTIVE DATE.
FAILED ON FIRST READING - 8/18/98
WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the "City of
Delray Beach," hereafter the "City"; and,
WHEREAS, the intent of the City Commission of the City of Delray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, and general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commission to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WHEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on the community which include but are not limited to the
following:
U.S. 1132.
City of Renton v. Playtime Theaters. In¢,, 475 U.S. 411 (1956), reh. denied, 475
U.S. 873.
Young v. American Mini-Theaters. In¢,, 427 U.S. 50 (1975), reh. denied, 429
3. Barnes v. Glen Theater, 501 U.S. 560 (1991).
4. Report on Zoning and Other Methods of Regulating Adult Entertainment iq
Amarillo, (Texas) dated September 12, 1977.
1979.
Regulation of Criminal Activity and Adult Businesses. City of Phoenix, May,
26, 1977.
Findings of the City Planning Commission for the City of New York dated January
7. Detroit's Approach to Regulating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Report on an Ordinance Amending' Section 28-73 of the Code of
Ordinances of the City of Houston. Texas: Providing for the Regulation of Sexually Oriented
Commercial Enterprises. Adult Bookstores. Adult Movie Theaters and Massage Establishments;
2 ORD. NO. 31-98
FAILED ON FIRST ~ING - 8/18/98
and Making Various Provisions and Findings Relating to the Subject. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. Adult Entertainment Business in Oklahoma City.
Appraisers. Report prepared by the Community Development
Oklahoma City, Oklahoma. Dated March 3, 1986.
A Survey of Real Estate
Department of the City of
12. Adult Entertainment Businesses in Indianapolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County Sheriff's Office report dated April, 1998.
14. Director's Report: Proposed Land Use Code Text Ametldment. Adult Cabarets.
A report prepared by the Director of the Department of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commission for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects will not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
WHEREAS, the City also adopts the findings made in the adoption of Ordinances 35-90
and 56-90; and,
WHEREAS, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degradation, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
WHEREAS, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WHEREAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordinance is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
3 ORD. NO. 31-98
FAILED ON FIRST READING - 8/18/98
WHEREAS, the local planning agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan; and,
WHEREAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and enhances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative findings relate to substantial
and legitimate governmental interests; and,
WHEREAS, adult use establishments have operational characteristics which should be
reasonably regulated in order to protect those substantial governmental concerns; and,
WHEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required to
bring the Code in compliance with current law.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH AS FOLLOWS:
~. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishments", of the Land Development Regulations of the Code of Ordinances
of the City of Delray Beach, is hereby amended to read as follows:
(AA) Adult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County licensing requirements,
pa king egul tio .... :'" ~'"':~: ..... '~ *~' ..... ~ *~ .... '"':~ "~ F ~
r r a ns, or ................... r ........ t, .............. .. .~. . rcce::,
4 ORD. NO. 31-98
FAILED ON FIRST READING - 8/18/98
113.20 9f the Code of Ordinances of the City_ of Delray Beach. the following requirements shall
apply to adult entertainment establishments:
(1) No adult entertainment establishment shall be located on properties with
frontage on an arterial road or located east of the CSX railroad tracks.
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, school, residential zoning district, or community
facilities gQBiB&district (CF. OS. OSR. CD) :c~$o! where the use is or is to be re_eularly
freauented by the general public (i.e. community_ center, parks, school, courthouse, child care
facilities, offices, etc.) measured from lot line to lot line boundary along a straight airline route,
except when the property, containing the adult entertainment establishment is separated from the
above by the 1-95 right-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcoholic beverage establishment, measured from lot line to lot line
boundary_ along a straight airline route.
(4) Signage. Only one sign per adult entertainment establishment is permitted,
and such sign shall not extend above twelve (12) feet above ground level or have an area of
greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. All
other restrictions of the sign code shall apply herewith.
(5) No adult entertainment establishment shall be located within an historic
district, on an historic site. or on properties listed on the Local or National Register of Historic
Places. un/ess the historic district, site or property_ was previously used for an adult entertainment
(6) The minimum floor area per room or partitioned area within ar, adult
entertainment establishment must be 2.000 so. fi.. exclusive of kitchen, restrooms, storage areas
and other non-public/customer area of the establishment.
(7) Performers/entertainers or employees in the state of nudity or partial nudity_
shall not approach within four feet of patrons, customers, or other employees or other
performers/entertainers, and must perform/entertain from a stage encompassing an area of at least
one hundred (100) square feet.
5 ORD. NO. 31-98
FAILED ON FIRST READING - 8/18/98
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9 (D)(1) and renumbering the remaining list of
conditional uses to read as follows:
(D)
Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
Avenue Overlay District by Section 4.4.9(G)(1)(a) and the North Federal Highway
Overlay District by Section 4.4.9(G)(2).
~. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
Section 4.
are hereby repealed.
Section 5.
second and final reading.
~day of
That all ordinances or parts of ordinances in conflict herewith be, and the same
That this ordinance shall become effective immediately upon its passage on
PASSED AND ADOPTED in regular session on second and final reading on this the
,1998.
ATTEST:
City Clerk
First Reading
Second Reading
adult3.ord
rev. 8/5/98
MAYOR
6
FAILED ON FIRST READING -
8/18/98
ORD. NO. 31-98
From: The Staff To: Jeff Ccste:lo Date: 8117198 Time: ~ ~ :4S:5:3 AM Page 1 o, 1
GREATER
DELRAY BEACH
Chamber of Commerce
To:
From
Re:
Date:
Delray Beach City Commissioners, City Manager, P & Z Board
Members & Staff
Bill Wood, President
Greater Delray Beach Chamber of Commerce Statement on
Adult Entertainment in Delray Beach
August 17, l c'~2~
The Greater Delray Beach Chamber of Commerce is, and will always be, this community's
strongest proponent of the free enterprise system. However, our primary objective as a
business organization is to do whatever is necessary to ensure the economic health and
vitality of Delray Beach. Free enterprise and economic health w!ll normally go hand in
hand. There are exceptions and proposed zoning to allow adult entertainment in Delray
Beach is just such an exception.
Economic development is not just printing a nice brochures, advertising what a great
place Delray Beach is to live or work, providing professional location assistance and other
information. Economic Development is also al:out the community as a desirable place to
be; it's about image and attitude, people's feelings and perceptions of the community.
One of the reasons that the All America City designation has been so important is that it
underscored Delray as a community that works together to make the community better
for ali its dtizens.
Adult businesses, the elements and difficulties that they bring with them, do not enhance
image and attitude about our city. In fact, they harm and detract from a dty's image. We
encourage the City Commission to do everything within its legal limits to prohibit adult
businesses from locating in Delray Beach. If the Supreme Court has determined that we
must provide locations within the city limits for adult entertainment, then we encourage
you to create a single district in as remc~e a location as possible, one that can be closely
monitored to help ensure the safety and peace of mind of our citizenry.
64 SE 5th Avenue
Delray Beach, FL 33483 561/275-1380. ext 13
lag uirre~delraybeach.corn
RECEIVED
AU6 1 7 1998
PLANNIN( & ZONING
tCIT¥ JIF DELRRV Ei!EOEH
CITY ATTORNEY'S OFFICE
DELRAY BEACH
Ali.America City
DATE: August 11, 1998
2~11~ N\V 1st ,'~\'EI.:UE · I;,F. LI'.AY BEACll, FIAtRIDA 33444
l',.'~('?,lt, lll.l; ,1(},',2/,'1-,I ?55
!
Writer's Direct Line: 561/243-7091
MEMORANDUM
TO:
City Commission
David T. Harden, City Manager
FROM:
Susan A. Ruby, City Attorney
SUBJECT: Adult Entertainment Ordinances 30-98 and 31-98
I am providing you with this summary overview, ordinances and other materials on adult
uses so that this often litigated area of the law will become more familiar to you. The
courts have required that regulation of adult uses must be based ~ on the secondary
effects of such use and not on personal observations or views on the morality or content
of the expressive content or on the use itself. Valid time, place and manner restrictions
must be narrowly tailored and provide sufficient avenues of expression. The proposed
ordinances contain certain proposed findings as to secondary effects. Ordinances 30-98
and 31-98 have been advertised for a first public hearing on August 18, 1998 at 7:00
p.m. and a second public hearing on September 8, 1998 at 6:00 p.m.
The distinctions between the two ordinances are as follows: Ordinance 30-98 removes
adult uses as conditional uses in the GC and MIC Zoning Districts and allows the adult
uses as permitted uses in the MIC Zoning District. Ordinance 31-98 removes adult uses
as conditional uses in the GC District, but keeps adult uses as conditional uses in the
MIC District.
Both of the ordinances provide for the elimination of the current 1,000 foot distance
requirement between adult entertainment establishments. The distance requirement was
sacrificed in order to have enough potential sites to meet the constitutional requirements
of adequate alternative avenues of expression. While there is no set number of sites that
a court will determine is constitutional, the courts will look to the percentage of land
available for adult businesses, the number of sites with a genuine possibility of use for
adult uses, and the number of sites potentially available for adult uses per city
population.
August I !, 1998
Page 2
A survey of the cases in Florida shows that the courts have upheld ratios of one adult use
site per 2,182 persons (with 122 available sites) down to one site per 6,761 persons
(with 22 available sites). Boynton Beach's ordinance was upheld with a ratio of one site
per 4,208 persons (with 11 available 'sites). The court struck down a St. Petersburg
ordinance which provided a ratio of I site per 12,565 persons and 19 available sites
because the ratio was insufficient to provide sufficient avenues of expression.
The City's population is effectively 63,600 and includes approximately 53,000
permanent residents and approximately an additional 20% or 10,600 seasonal part-time
residents. Based on other cases, the City would probably be required to provide in the
range of approximately 10 sites (using the Ft. Lauderdale ratio) to 15 sites (using the
Boynton Beach ratios). The number of sites provided are shown in the shaded areas on
the map attached to the ordinance, after applying the distance requirements in the newly
revised ordinances.
Both ordinances prohibit adult uses from fronting on arterial roadways (i.e. Congress
Avenue and Atlantic Avenue). This limitation is to shield the surrounding businesses
and the general travelling public from the secondary affects of crime and drug sales and
the urban blight that often accompanies adult uses. The ordinances do not permit adult
uses east of the CSX corridor. The purpose of this restriction is to protect the church
and the neighborhoods near Depot Road from the secondary affects of prostitution, drug
sales, etc. that accompany this type of use. The area around Depot Road is listed in the
Comprehensive Plan as RHB - Rehabilitation -- meaning the neighborhood has numerous
code violations; deteriorated and non-maintained situations; high level of absentee
ownership; significant crime problems and large number of vacant lots. The
Comprehensive Plan emphasizes the need to combat crime in this area and the additional
crime that often accompanies such uses. It is thought that increased crime would not
further the rehabilitation efforts in the area.
The ordinances retain the 750 foot distance requirement from other alcoholic beverage
establishments and the 1,000 foot distance requirement from residential properties and
schools, etc., but provides an exception if the residential use, school, etc. is separated
from the adult use by 1-95.
The ordinances both prohibit adult uses on historic properties that have not previously
been used for adult uses in order to protect and maintain the history, character and
cultural uniqueness of such sites by eliminating the secondary effects on historically
designated properties. I do not believe there is currently any historically designated sites
located within the adult Use boundaries on the map.
August I 1, 1998
Page 3
Lastly, the ordinances provide for a stage of at least 100 feet for entertainment and
performances and a separation requirements of 4 feet from patrons where the
performer/entertainer, employee, is in the state of nudity or partial nudity. These
requirements are related to the prevention of disease, and public health and are included
in the ordinance to also minimize crime.
Enclosed are the proposed ordinances, and an article that sets forth some of the law in
this area. The studies and cases referenced in the ordinances are voluminous, therefore,
I am transmitting one set of the supporting documents to the City Clerk so that you may
review the materials. Please call me if you have any questions.
CC:
Alison MacGregor Harty, City Clerk
Chief Richard Overman, Delray Beach Police Department
Paul Dorling, Principal Planner
Jeff Costello, Senior Planner
Cathy Kozol, Police Legal Advisor
adultl.sar
ROBERT H. FREILICH, P.E.
MARTIN L. L£1TNER, P.E. ·
RICHARD (3. CARLISLE, P.E. ·
BENJAMIN KAUFMAN
DEBORAH J. IrOX ~
MAR(3ARET MOORE SOHA(31
STEPHEN J, MOORE,
TERRY D. MORGAN, P.E.
S. MARK WHITE
ELIZABETH A, GARVIN
DAWN R, ANDREWS i
DAVID (3. RICHARDSON 4
DAVID W, BUSHE:K ·
LAW OIr IrlC~S
FP,.EIL;CH, KAUFMAN, FOX 8 5OHAC;!
11755 WILSHIKE BOULEVARD
LOS ANCE[ES, C~L~FO~m~ 90025-1518
FACSIMILE
(310) 477-7663
TELEPHOHE
(310) 444-7805
iN HISSOUR!
IN
ADULT USE ZONING IN THE 90s
BY
DEBORAH J. FOX~
FREILICH, I~~N, FOX & SOHAGI
PRESENTED AT
Annual Planning Conference
of the
American Planning Association,
Canadian Institute of Planners and
Ontario Professional Planners Institute
TORONTO, CANADA
April 11, 1995
.APRI
Aduk Use Zoning
in the 90s
1994/190~ by The Regents of
the University of California.
Reprinted, with the permission
of the Regents, from Zzmd Use
& F. nvironment Forum, a
quarterly journal published
by Continuing Education of
the Bar-California.
A nude juic~ bar--the latest in adult us~ fare. offn'ing a variety
of healthy fruit juic~ plus exotic uuda dancars-..may be enmin$
to your _~,mmtmity. Some might se~ it as a real LULU {"locally un-
desirable land use") and actively oppose it: others might say it me, rely
pu.~es the envelope. Undoubtr. dly, it would piqua people's intent and
probably throw the city's attorneys into thc fray of s~vm-al cousfimtion-
al sktnnial~t.
Lltilation about conmffiing such ~tablisianents is on ~hc rise,
prodding hortm' stmiea about lengthy baalea pitting public entitiea
n?~t ~hllt ttS~ opea-~mra. National City sgent mom ,h,n six yeats in
litigation with C. huck's Bookstn~ and {nnea~ with a california
Suv,,.,,,a Court de.t~tsion validating ia o~S,-,,~a. City ofiVat~nal City
v l~entr {1992) 3 C4th 832, 12 CR2d 701. In conmtst, Santa Aaa,
Whittier, and Cratden Grove each spent mo~ than n decade fighting
adult u.~ facilities, with ir. aa success. Now that Las Vegas has be~n
t~eokn~-~4 as thc 'All American City" by lime mng~,hn~ it ix clear
than tt;c phenomenon of adult usa is not simply llmil=d U~ a few
~ ju~dl~tious.
Adult ~ lm~ent a ~_~_n_~_~e confrontation betweaa thc law of
zoning, which allows thc will of a majority to conrail the evolution of
· enmmtmity and shape its _~,actt~ and the first an~ndmant, which
prevents thc majority from SUPlm~ing unpopular minority ~p~..ssion.
An extensive b~iy of jm~spru~ca lm merlcd in sa
oac~ O~ Inevitable contUct. Seo 8~mally, Dunm v City o/ Datla.~
(lqD Tax 1986) 648 F Supp 1061, 1063. 'rba conflicts do not dcm with
any mmul rmain: on · pt.~il~'s pmicular l~td~ ~altation but
with an Ol~raacn"s deab~ to ~ouduct · r~xually orienmt b,~rcas.
Cgmpam, e.g. F/md v Bm-ns (1976} 427 US M?,'373 (county's
pammagc dbmbsal of non-Dgmocrat employees bald to vto!,-~ fu~t
mamdmenO with, e.g.. Barne. t v Glen rhtatrt, Inc. Oma 21, 1991)
115 L ~tl 2d 504, ill $ Ct 2456 Cauda dm:ing m~ly on fringgs of
Im~ Ilrst mneudment activity). (The coustimtionM dabata over
prutactinl r~matly axplicit speach and expression bas fe=ently tak~ a
to tba ex~ant it dapicts aad canscs tha subordination of women and thus
results In thcir disparata uy~nnent, is not protec~d cxprcssion ~_~_-q
it vioJ-~_ thc cquality principles of thc fom3acuth amendment.
"The F'u3t Amendmcnt. Under Fire From thc Left." ~/fw
.M-,faz~ fly[ar. 13. 1994) (motif. farad discussion betwccn Professor
f~nm-,-ine A. MacKb2non and Floyd Abrams).)
I
. The regulation of adult businesses
raises important public welfare issues. If
adult use operators ate allowed to ignore
a city's planning, building, and licensing
requirements under the guise of the first
amendment, thc public is placed at risk.
Adult use establishments ate recognized
as having the potential for adverse sec-
ondary effects=-crime, prostitution, re.
duced property values, degraded com.
mercia] districts---and, accordingly, the
city's planning process with respect to
such businesses should be respected. See
Foun$ v American Mini Theatres (1976)
427 US 50. The community at large nnd
adjacent property owners, both contmer-
cial and residential, have rights and iaea-
eats that deserve protection aa much'as
the constitutional rights of the adult use
operator.
When judging the constitutional suffi-
ciency of an adult use ordinance, courts
examine several issues, including the fol-
lowing:
· Is the ordinance content-neutral?
· Does the ordinance serve a substantial
government interest and provide suffi-
cient alternative sites for the potential
location of adult uses?
· Do permit or license provisions of the
ordinance provide established criteria
on which the decision nuda:r deter-
mines whether an adult use permit
should be issued'/ Do they provide
sp. ccific and reasonable ti/ne periods
for permit issuance? :
· Should the court interject itself into
the city's plnnning and land use pro-
cass'/
This ntdcle offers advice to attorneys
for public entities negotiating the twists
and tums of the constitutional journey.
Some may find themselves confronted
with th,~se issues as they uixlato an out-
dated adult use ordinance, while others
may be thrown into Utignflon when an
adult use ogerator seeks an immediate
onmt ruling invalidating a city's adult us~
regulations. Any con.st will probably be
a spirited one, because both the first
amendment and the public welfare e-vok~
such strong opinions. See Ro~i,
an .~nsy Duct: ~7~e Police Pm~er
the Fir~ Amendment, p
CONTENT-NEUTRAl. REGULATION:
Standard of Review
A threshold concern is Whether
city's planning and building require-
meats ate more onerous with respect to
first amendment activities than other ac-
tivities. A regulation enacted for the pur-
pose of restraining speech on the baals of
content presumptively violates the f'trst
amendment. City of Renton v Playtime
Theatres, Inc. (1986) 475 US 41, 46.
Courts will overturn pertnit or licens-
ing requi~ments applied exclusively to
ndult uses if the regulation's only appat-
ant purpose is to suppress protected
speech. Entertainment Concepts, Inc.. !I!
v Maciejewskl (Tth Cir 19g0) 631 F2d
497. Content-neutral "time, place, and
manner" regulations, on the other hand,
will be upheld if they serve a substantial
governmental interest and do not untea.
sonably limit alternative avenues of com-
munication. City of Rentan v Playtime
Theatres, Inc. (1986) 475 US 41, 47.
Regulation of Secondary Effects
In City of Renton, the Supreme Court
upheld a zoning ordinance that prohib-
ited adult motion picture theaters from
locating within 1000 feet of any residen-
tial zone., single- or multiple-family
dweUing, church, p~k., or school. By its
terms, U~e ordinance was designed to pre-
vent crime, protect the city's retail nde.,
mainu~ property values, and protect the
community's quaUty of life, not to sup-
press expression of particulat views. 475
US at 48.
,Before City o!Renton wa~ decided, it
was uncertain whether adult business or-
dinances were to be reviewed under the
standard applied to content, neutral ragu-
latices or under the higher-scrutiny stan-
dard ppplied to content-based regulation.
The Supreme Court chose tO analyze
Renton's ordinance as content-neutrM
even though it clearly treated adult the-
nears diffe~ntly from other theaters. The
Court reasoned that "thc City CouncU's
'predominate centares' were with the
secondary effects of adult tipsters and
not with the content of adult films them.
~elvos." 475 US at 47. Thus, the ordi-
nance could be classified as content-nan-
ual because it was "justi~ied without
reference to thc content of thc regulated
q~eeca." 475 US at 48, quoting Hr~/nia
Pharmacy B& v Hrginla Citiuns Con.
sterner CounciI, Inc. (1976) 425 US 748.
The Court went on to note that (475 US
at 49):
at I~ast ~ith msp~t to businesses fl~at purvey
sexually ~apl~it materials {footnote omittedl,
aonint mdinonces designed to combat Ibc un-
desb'able secondary effects of such busi.
nesses are to be reviewed under the standards
applicable to "content-neutral" time. piece.
and manner regulations.
In the omitted foomote, the Court quoted
Young v American Mini Theatres (1976)
427 US 50, 70: "Il'It is manifest that soci-
ety's interest in protecting this type of ex-
pression is of a wholly different, and less-
er, magnitud~ than the interest in
untranuneled political debate."
City of Renton thus marked a major
shift in the Supreme Court's first amend-
ment jurisprudence. It is the first case
where a majority of the Supreme Court
(six justices) recognized that a hierarchy
of protected Speech exists; i.e.,'that the
publication of the Peumgoo papers, for
example, is entiUed to more protecUon
than the latest X-rated (but not obscene)
videotape. (in American Mini 77~ealre$,
this concept was recogntzed by only a
pluraJity of tho Court.) See geaendly,
SDJ, Inc. v City of Houston (Sth C~
1988) 837 F2cl 1268.
Following the City o/' Rent.on exam-
plo, a city's adult uso ordinance should
not prohibit adult businesses altogether,
but may restrict their Ice. on. Proper
purposes would include protecUng the
city's retail trade, zmdntaining property
values, protecting and p~g the
quality of the city's neighborhoods and
the.city's comme~inl districts, and pro-
tecting lbo city's quality of life. These
pm'poses should be stud in the ordi-
nance. An ordinance formulated in this
fashion may be categorized and analyzed
as & content-neutral reguladon.
An unresolved issue is whether, under
Gert C §65858, a city could adopt ns nn
urgency measu~ an interim ordinance
that totally banned adult uses in the inter-
est of prote~ng the'public safety, health
and welfare" (Govt C §65858(a)). Such
a ban a~uably ~ within lbo numerous
planning tools that a city has at its clispos-
. al In order lo experiment with approa~es
lo this dilfieult legal issue. See Young v
American MinM'hemr~ (1976) 427 US
50 (noting cities' need for flexible plan.
ning mob); mm also $c/to~ v Boro~,h o!
Mt. £pAm~m O981) 452 US 61, 75 nib
(noting that not ove~ unit of govern-
ment, no metier how small, must provide
an ama for adult use).
A community is entitled to prm~ct it-
self from the negative secooda~ effects
of adult 9~ and · ~nall community
LAND USE* & ENVIFIONMENT FORUM 103
tnay find that a to~ b,'m is the only
me,ns to do so. tn light of the variadous
itt cides' sizes ,'md characteristics, a pub-
lic entity must have flexibility to address
the multi-dimensional problems posed by
adult uses.
Legislators' Intent Irrelevant
Note that a court's review is lhnited to
the text of the adult use ordinance; the re-
view should not include speculation
about the legislators' intent. City of Rea-
ton v Playtime Tlieotr~s. Inc. (1986) 4'/5
US 41, 47; Bamon Corp. v City of Doyton
{SD Ohio 19901 '/30 F Supp 80, 85, sff'd
(6th Cir 1991) 923 F2d 470. The fact that
hundreds of residents may have picketed
the adult esmblisttment or expressed
sa'one morel feelings about its presence
in their community is irrelevant to the
c.onstitudonality of the ordinance.
SUBSTANTWE VALIZ}ITY
Once a court dete.rminas that an adult
business ordinance is content-neutrnl, it
then must examine whether the ordi-
ne. ncc is designed t0 serve a substantial
government interest, nd whether it al-
lows adequate avenues for the expression
of the restricted speech. 475 US at 50. ·
Substantial Government Interest
The Supreme Court in City of Renton
bad no difficulty determining that the or-
dinance in quesdon met the substanti,'tl
governmental inter~t element of its test.
The Cou~ stated (4'/5 US at 50): "As a
majority of this Court recognized itt
American Mini Theatres, n city's 'interest
in attempting to preserve the quality of
urbnn life is one that must be accorded
high respect.' [Cltadon.] Exactly the
same vital governmental interests arc at
stake here."
in City nj' Remon, the Ninth Circuit
had Invalidated thc city's adult business
ordinnnce. The Ninth Circuit held that
because the ordinance was enncted with-
out the benefit of sttldies specifically
gating to the "particular problems or
needs of Renton," the city's justification
for the ordinance was "eonelusoq and
speculative." Playtime Tbeater~ v Ch7 of
R~nton (~th Ch. 1~84~ ?48 F2d $27, ~?.
The Saf~e.n~ Court, boy. vet, held that
this burden of proof was "unnecess~iy
rigid." 4'/5 US at 50. The Court noted
that. ia ndopting its ordinance, Renton re-
lied henvily on the experience of the City
of Senttle (who~e o~dtnanc~ was upheld
in Nonhend Cinema v City of Seattle
104 SPRING 1994
(1978) 585 P2d i!53). Thc Court held
that such reliance was justified nnd
constitutionally sufficient (475 US at 51):
Renton was entitled to rely on the experiences
of Seattle and other cldes, and in particular on
the "detailed findings" summarized in the
Washington Supreme Court's Northend Cin~.
ma opinion, in enacting its adult theater zon-
ing ordinance, The First Amendment does not
require · city, before enactins sucb an ordi-
nance, to conduct new studies or produce evi-
dence independent of that ab'cody generated
by other cities, so long as whatever evidence
the city reties upon is r~axo~bly ~l~eved m
be re/aware to the problem that the city ~l-
dresses. [Empbasis added.]
[D]o not
overlook the in-house
experience and
capabilities of the
planning, police, and
health service
departments. For
example, ifa community
has an existing adult use
facility that has generated
a disproportionately
high number of calls for
police service, such
da~a is cntcial tO telling
the story of the resource
drain caused by the
effects of adult
uses in a
¢oH1muttity.
XXX
A newly enacted adult ordinance
should state that It roues on the estab.
fished case law and experiences of other
A host of studies on adult uses exbt,
ineludin~ those done by Seatde, Phoenix,
Indianapolis, Los An&,eles, Garden
Grove, C. Mifomin, and Austin, Texas, as
well as the U.S. Attorney General's
Report on Pomogrn_phy. Public enddes
n,td their attorneys should review these
studies. If any am relevant to th~ experi-
ence of the enacting jurisdiction, those
studies should be cited specifi~,-dly in the
text of the ordinnnce. Also consider' in-
cluding citations to nqy case authority on
which the entity relies in its ['malines of
need to combat adverse secondary effects
of adult facilities.
Finally, do not overlook ,he in-house
experience and capabilities of the plnn.
nine, poUce, and health service depart-
ments. For example, if n community has
an existing adult use faciUty that has gan-
crated a disproportionately high number
of calls for police service, such data is
crucial to telling the story of the resource
drain caused by the effects of adult uses
in a community. Some jurisdictions have
conducted surveys of ~ estate brokers
within the community to show the reduc-
tion in property vnJues attributed to adult
facilities. The data should be offered in
support of the ordinance and to confirm
the jurisdiction's concern about second-
nry effects. Such findings nrc all that is
necessary to meca the government inter-
est portion of the Cily o./'~enton test. See
Lakeland Lounge v' City o/Jackson (Sth
Ch' 1992) 973 F2d 1255.
In SDJ. htc. v City of Hou:tbn ($th
1988) 837 F2d 1268, 1274, the Fifth Cir-
cuit Court of Appeals explained that in
reviewing adult business ordinances,
courts go beyond the review of normal
legislative acts, but only to the extent of
insisting on objective evidence of pur-
pose, -Lc.. n study or finding::
Insisting upon findings reduces the risk thai
· pmponed effort to 'regulate effect is a mask
for reSUlatim~ of eno(ant. That is. evidence of
legitimate pmlX)Se is supported by proof that
secondary effects ucmaUy exist and ate the
result of the business subject to the regula-
*iou.
Although the findings in a city's ordi-
nance must meet the standard set by Ci~.
oj'Renfo~, this sumdard is uot et daunting
one, A look at the facts of City o/'R~mofl
dgmonstrate~ as ~ Ninth Circuit ob*
served, that the 'record ixesented by
Renton to support its asserted interest in
enacting the zoning ordinance [wasl very
thin." Pioytimt 77~taters v City of Renton
(gth Cir 1984) ?48 F2d 52'/, 536; see also
City of Renton v Playtime TAtatre$. Inc.
(1986) 4?5 US 41, 60 (Brenann, J., dis-
sendn~). Yd thc majority of the Supreme
Coon had no problem holding that the
findings (adopted weeks after the ordi-
nance) were clearly sufficient to support
the ordinance. See also Internationul
Food & Beverage Sy$. v City of ~on Luu-
'den~al~ (I ith Cb' 1986) 794 F2d 1520,
1527 (city may rely on the experiences of
other conununities and ordinance should
be tested as a zoning cont~oi).
Adequate Alternative Sites
Renton's ordinance left 520 acres, or
mom than 5 percent of the land in the
city, open to use ns sites for adult theaters.
The land consisted of "'acreage in all
stages of development from raw land to
developed, industrial, warehouse, office,
and shopping space that is criss-crossed
by freeways, highways and muds.' Ap-
pendix to Jurisdictional Statement 28n."
475 US at 53. The Supreme Court found
these locations sufficient to establish rea-
sortable alternatives.
The evidenttary record must show that
there are in fact n sufficient range of al-
ternative sites. There is, however, no set
number of alternntive sites necessary for
the ordinance to be valid. The issue is ex-
amined on n case by case basis with refer-
ence to the particular demographics of
the city. See, e.g. In~ernatianal Food &
Beveruge Sy$. v City of Fort Lauderdale
(ilth Ch' 1986) 794 F2d 1520, 1526 (22
sites for nude bars held to be sufficient
without evidence to the contrary); Att-
ender v City of Minneapolis (gth Cir
1991} 928 F2d 278, 28]3 (adult theater ac-
cess to 6.6 percent of total commercial
acreage (120 sites) held reasonable).
To support an adult use ordinance, the
administrative record should include:
· total area of the city and number of
gross acres;
· net acreage available for all land use
purposes;
· breakdown ns to net acres available
for residential, commerebd, indusu*ial.
agricultural, etc.:
· total net acres available for adult uses;
·tmal number of operating
in the city; etd
· total number of adult busi~essns opet-
ming in the city or close proximity.
This framework is ctuc~ fix the uter of
fact to determine whether the altemative~
offered unde~ the ordimee ate suft'i-
CionL See City. o/ Natlo .nal City v Wiener
(1992) 3 CAth 832, 12 CR2d 701 (speci-
fying to~ developable acre~ wMdn
various land use mtc.~ofles), it also
serves to focus ~e inquky aa planning
and should hlsbti;ht some of ~ unique
characteristics or,he community. For ex-
ample, is all the commercial property in
the city located along one m~in thorougb-
fare or sprinkled throughout? Does the
full length of this main angry border on
n residential zone and preclude siting an
adult facility without violating the dis-
umce limitations of the ordinance? To de-
termine whether the offered numb~ of
adult sites is "reasonable" requb'es a
working understanding of the land use
paueros of the city.
"A reliable" Sites
In City of Rento~ the Ninth Circuit
had found that the 520 acres ware not tm.
ly "available" for adult theaters, because
they were either already occupied, not for
businesses by requiring n minimum sepa-
ration between adult uses. (The altema-
live approach is to conccn~ate adult uses
in one ~ea of the city. Boston's "combat
zone" is an example.)
This type of regulation was upheld itt
American Mini-~Tfeatres. Since then,
several cases have struck down adult use
ordinances based on dispersal require-
ments. One such case, City ofStanton v
Cox (1989) 20'/CA3d 1557, 1566, 255
CR 682, observed that dispersal require-
meats bad been invalidated because the
end result was little opportunity for an
adult use operation in the city. See, e.g.
. Walnut Props., Inc. v City of Whittier (gth
sale or lease, or not commercially viable: Cb' 1988) 861 F2d i 102 (1000-foot sepa-'"
sites for the location of an adult theater.
The court held, therefore, that Rcnton's
ordinance would result in a substantial
restriction on protected speech. Playtime
Theaters v City of Renton (gth Ch' 1984)
748 F2d 527, 534.
The Supreme Court unequivocally re-
jected the notion that sites must be "com-
merci~ly" viable, or be currently for sale
or lense, it held that tba regulation need
only refrain from denying adult use oper-
ators a reasonable opportunity to open
and operate their businesses. 475 US at
54. Chief Justice Rehnquist pointed out
that adult businesses should not be en-
titled to more than equal protection (475
US at 54~:
That respondents must fend for themselves in
the real estate ma~ket, on nn equal fcotln~
with other prospective purchasers and les-
sees. does not ~ive rise to ~ lrgst Amcodment
violation .... [WJe have never su88ested that
the First Ameodmeut compels the ~ovem-
mcat to ensure that adult theaters, or uny oth-
er kinds of sFeecb-related businesses for that
matter, will be able to obtain sites ~ btrsab2
prices.
The Constitution does not saddle mu-
nictpalitles with the task of ensuring the
popularity or economic s _ue~__~ of adult
businesses (City o. f Natiam21 City v 1Vif.
tier (1992) 3 C4th 832, 848. 12 CR2d
701 ) nor does it ltmrantee anyone a profit
(intenmrio;MI Fo~d & aevera~e Syn. v
City ofF'orr l. du~erdale (lllh Clr 1986)
794 F2d 1520. 1526).
Dispersal Requlr~mfnt~
in ~klition m requtrin$ separation
from sensitive land met (residential
zones, churches, achonls, etd pad~i,
many adult use ordinances also reqube
"dispersal." Such provisions auempt to
control the synergistic effects of adult
radon requirement effectively excluded
all adult uses); Ale. render v City of Min-
neapolit (gth C~t 1993) 69g F2d 936
(500-foot separation with only 12 sites
available).
in the cases cited by Stanton. howev-
er, the dispersal requirement was men-
sured in a su'aight line. Sea, e.g., Walnut
Props. v Cir~ of Wldttier (gth Ch' 1988)
861 F2d 1102, ! 108 n4 (noting that n
cia:lc with a radius of 1000 feet encore.
passes approximately 72 acres). DLq'erent
measuring criteria can produce less oner-
ous results. For example, measuring the
distance from front door to front door al.
Iow~ for far greater alternative sites than
the "straight-line" method describecl itt
Walnut v City of Whittier. while prevent-
ing adult busine.~es f~om being located
next to one number (or at the most not
two or tluee doors apart).
Adult Ute
Restrictions on ~ number of adult
uses permitted within One su, ucture have
been found constitutionally valid. Hurl
Book Stores, Inc. v Edrm'~ten (Ath Cir
1979) 612 F2d 82 I, 826; Dum~$ v City Of
Dn//a~ (ND Tex 1986) 648 F Supp 1061,
Iff/0; see ~ roue! v Americmt Aflni-
T/m~tnt 0976) 427 US
$e,~/'w;ent Sites in "ReleMnt Merkur"
In Topanga Pr~$. Inc. v City of Los
Angeles (gth Cir 1993) 989 F'2d 1524, the
Ninth Circuit gd~ Los Anleles's
auempt m force the relocation of some
102 existial gull usus. Relying solely on
~ gult use operator's expem, the Uial
court bad found that 120 pomntlal sites
were evadable for relocation. On appeal
however, the Ninth Ci~:uit observed that
the number of businesses that would have
LAND USE & ENVIRONMENT FORUM I05
i I
to relocate was actually much higher. Un-
der the ordinance, a single store that sold
two kinds of adult entertainment was
considered a multiple business and each
operation had to meet the separation stan-
dards. Thus, that operator would need
two relocation sites rather than one, By
drafting its ordinance in this fashion, Los
Angeles ran afoul of the Ninth Circuit's
prior decisions rejecting separation re-
quimments that can significantly reduce
available silts.
Exhibiting some disdain for the Su-
preme Court's reasoning in City of Rea-
ton. Topanga Press also adds a new layer
of analysis'to deta'rmin~ if'sufficient al-
ternatives exist. It requires consideration
of whether a specific relocation site is
*'part of the relevant market" and rejects
City of Renton's "money-blind" test. 989
F2d at 1530. The Topanga Press panel
simply gave no heed to the fact that the
property considered in City of Renton
was in ali stages of development includ-
ing: {1) a suwage treannent plant; {2) a
horse Facing track and environs; (3) ·
watehouso and manufacturing facilities;
(4) a Mobil OH lank farm; and (5) a fully
developed shopping center. Playtime
Theme~ v City of Rentan (gth Cir 1984)
'/48 F2d 527, 534.
The Ninth Circuit offered limited cri.
terin for determining whether sites are ac-
tually in the "relevant m&rket" (989 F2d
at 1531):
* Is there a genuine possibility that the
site is potentially available? In other
words, is it reasonable "to believe that
{the sim] would ever Ix~come available
to any commercial enterprise?"
· If the sites ate in manufacturing or in-
dus~ial zones, are they reasonably ac-
~q__~tble to the general public?
* if the sites are in manufacturing zones,
do they have a proper infrastmctur~
such as sidewalks, road and lighting?
mercial enmpri~?
. Are, the sites commu'c~ly zmed?
The Tapanga lSrg~ panel clearly re.
~cted Los Angeles' attmnpt to include
thousands of acres that were submerged
harbor of the Port of Los Angeles. it also
rejected inclusion of sites that weFa part
of the Van Nuys Airport, Children's Hos-
pital, large oil refineries, or landfills,
finding such sites were simply not suit-
able to some generic commerchi enter.
prise.. (Los Angeles did not employ afl
outside expert witness or use its own
pinning d~ctor to testify about the
number of available sites within the city.)
TO ·void the pitfalls of Topangu Press.
questionable acreage of the type de-
scribed as outside the "relevant real es-
tat~ matket" should be excluded from the
final count of alternative sites. Also, a
city can undertake · "mapping" process
that calls out the number of alternative
A good
precautionary
measure is to place
in the administrative
record a report from the
city'~ planning director
stating that he or she
has examined the
ordinance's criteria and
found 'x" number of
alternative sites. Such a
determination is
entitled to great weight
in litigation
challenging the
ordinance.
XXX
sites available under the specific distance
and separation limitations being consid-
m'ed. Stal~ of the art planning softwat~
cnn be used to generata alternative sce-
natios to assist in t~e final selection of
distance restrictions. The computer-ge, n-
erated maps can then be Included in the
administrative record and designated ·t
the adoption heating as the "official"
map for alternative sites for the commu-
nity.
B,,/Ming a R~cord About th~
City and itt i)~mographlct
Thc interpretation of n municipal ordi-
nence or resolution is governed by the
snmc rules that apply to statutes. C-Y
Dev. Co. v City of Redlands 0982) 137'
CA3d 926, 929, 187 CR 370. Courts gen-
erally defer to the interpretation of an or-
dinance or statute advanced by those who
enforce it for two reasons: F'u~t, courts
respect a government agency's compe-
wnce, expertise, and experience. See P~.
c~c L~a~ Found. ~ Unemployment
AppenbBd. (195J) 29 C3d 101,111,172
CR 194. Second~ courts recognize that
contemporaneous expressions of opinion
· bout the construction of · statut~ by the
officials cha~ed with its enforcement are
importam indicators of the probable gen-
er~ understanding of the times and the
drafters. Nd. mn ~ Dean (194~) 27 C2d
873, 8g0, 16g P2d 16.
A good precautionary measure is to
pi·ce in the administrative record a report
from the city's planning director stating
that he or she has examined the ordi-
nance's c~teria and found "x" number of
aJtemative sites. Such a determination is
ontided to great weight in Iitig·tlon chal-
lenging the ordinance.
PERMIT OR LICENSE
REQUIREMENTS
Licensing or peflnit schemes, such ns
conditional use permit requirements, are
a justifiable means of regulating second-
nry effects of adult uses. They are subject
to challenge, however, if they do not pro-
vide specific standards for issuance of a
permit, or if they do not require public of-
ficials to act on · permit application with-
in · reasonable time.
Specific Standards
The criteria for determining whether
to grant or deny an entitlement must not
be impe~nissiblY' vague or vest unfet-
tered discretion in the decision maker.
People vA/atltau (1986} 182 CA3d Supp
!, 227 CR 664.' The crucial Issue is
whether the criteria have been tailored to
ensure that ~ s~cb will not bc
suppressed. City of l. akewood v Plain
Dealer Publi~hin~ Co. (1988) 486 US
7~0 finvalldating requirement for annual
permit to opeme news racks because
mayor was granted unbridled discretion
to impose terms and thus to deny per.
mits}. See also Deuce v City of Anaheim
{CD Cad 1993) 826 F Supp 336 {invali-
dating adult use ordinance requiring only
findings that adult use would not be detri-
mental to general health, safety, or wel-
fate).
108 SPRING 1~4
An ordinance that provides no stan-
dards at all for the issuance of a permit is
unconstitutional. S~c, e.8., Exotic World
News v City of Appleton (ED Wis 1980)
482 F Supp 1220. In contrast, clearly set
standards preclude any argument that the
decision maker has been given unbridled
disa~don to grant or deny exceptions.
F~/PB$, /nc. v City of Dallas (1990) 493
US 215. The ordinance should not de-
mand the submission of hTclevant data
about an appUcant's past in order to ob-
tain a license or permit Genusa v City of
Peoria (7th Clr 1980) 619 F2d 1203 (in-
validating Peoria's requirement that ap-
plicant be of 'good moral character" as
lodging too much discretion in decision
maker).
In People v gadeau (1986) 182 CA3d
Supp 1,227 CR 664, the court rejected a
challenge to a Los Angeles County adult
business ordinance, holding that objec-
tive, though unquantified, standards ar~
not unconstitutionally vague. The court
stated that the ordlnance's provisions
should 'govern exclusively the physical
appearance and relationship of the [adult
business] to other uses" rather than ea.
gage in an impermissible 'moralistic
litany." 182 CA3d Supp nt 9. The court
went on to validate all of the require-
meats of the ordinance, including provi.
sions requiring that the sites be "suffi-
ciendy buffered" from a residential area
and that the exterior appearance be con-
sistent with adjacent commercial struc-
tures. But see Dease v City of Anaheim
(CD Cai 1993) 826 F Supp 336, 344
{striking down ordinance that included
the latter two conditions on ground that
ordinance gave planning commission un-
oonstimdonal discred0n to grant or deny
CUP)
Specific and Reasonable Time Umits
In F1V/PB$. Inc. v City of Dall~$
(1990) 493 US 21:5, the Supreme Coufl
invalidated DaUas' discredonary adult
use permit provision because it failed to
set a time limit within which the permit
Ired to be Iranted or denied. (The Court
did not teach the issue of whether the
city's licensing scheme vested uncon.
stitutional discretion in the hands of the
decision maker. 493 US at 227.) The
Court provided a two-pert test for asses-
sing tho sufficiency of an adult ordinance
on this point: (i) the city must decide
whether to issue the license within n spa-
~Gifted and reasonable time period during
which the status quo is maintained; and
(2) prompt judicial review must be avail-
able.
The Dallas ordinance required the po-
lice chief to render a decision on the re-
quested license within 30 days but also
requited thc business premises to pass
cextain inspections before tbe license was
granted. Because no time limit was ira-
posed on those inspections, the Court
found the ordinance to bo consdtudomd-
ly deficient. See also People v Library
Oat, Inc. (1991) 229 CA3d 973,280 CR
400; J.L. Thomas, Inc. v County of Los
Angeles (1991) 232 CA3d 916, 283 CR
815; World TRde l,ideo, inc. v City of
Fukwila (Wash 1991) 816 P2d 18; Adult
Entertainment Ctr., Inc. v Pierce County
(Wash App 1990) 788 P2d !!02.
In C. aUfomia, CCP §§1094.$ and
1094.6 provide for prompt judicial re-
view whUe allowing the possibiUty of
immediate relief through issuance of an
alternative writ on cx perm notice {CCP
§ 1088). Further, a petition for perempto-
ry writ ofmandate can beheard within 15
days after service of a noticed motion.
CCP §1094.
An adult use ordinance should provide
that an applicant be nodfied simulta-
neously of (!) thc decision on the permit
application and (2) thc fight to judicial
review under CCP §§ 1094.5 and 1094.6.
LEGAL NONCONFORMING USES
An adult use operator may attempt to
establish a business before the city adopts
a constitutionally sound ordinance and
then' claim that the operation is a legal
nonconforming use. "Nonconforming
use" is merely a short-hand term for a use
that has a vested right to exist, but be-
comes invalid by subsequent regulation.
City of LOs Angeles v Gage (1954) 127
CA2d 442, 453, 274 P2d 34.
Vested Rights
The doctrine of vested fights is based
on equitable estoppel, a principle that
may be applied qalnst the government
when jusdco and fairness requite it. Santa
Monica Pines. Ltd. v Rent Comrol
(1984) 35 C3d 858, 866, 20 ! CR 593. To
obtain a vested right, a property owner
must perform substantial work and incur
substantial liabilities in F)od faith re.
liance on a permit issued by a govern-
mental agency. Avco Community Devel-
opers. Inc. v South Coast Regional
Comm'n (1976) 17 C3d 785, 791, 132
CR 386.
Often a race develops, with the adult
use operator trying to bring its facility on
line before the city can enact a new and
improved adult use ordinance. Speeding
up one's timetable in a calculated effort
to escape impending land use controls is
not "good faith" action and, therefore,
cannot establish a vested right. Aires Day.
Co. v California Coastal Z~ne Con,errs.
tion Comm'n (1975) 48 CA3d 534. 548.
122 CR 315; see also South Coast Re.
glonai Comm'n v ltiggins (1977) 68
CA..3d 636, 646, 137 CR 551.
Reasonable Amortization Period
If a business is a legal nonconforming
use, a city may eliminate it by paying just
compensation or require its removal after
a reasonable amortization period. City of
Los Angeles v Gage, supra.; United Busi.
ness Comm'n v City of SOn Diego (I 979)
91 CA3d 156, 179, i$4 CR 263. The un-
derlying concern is to ensure that the
amortization period allows a landowner
a reasonable oppoflunity to recoup his or
her investment--an issue that is deter-
mined by the facts of each case. (Note
that federal courts have shown disdain
for amortization periods and instead, pre-
fen'ed the "grandfather clause" approach
adopted by the city of Detroit in Ameri-
can Mini Theatres.) The fact that federal
cour~ are generally more receptive to
challenges to adult use ordinances means
that plaintiffs will usually try to lidgnte
their cases in federal court.
In California. the burden is on the
plaintiff to prove that the amortization
period is unduly sbon ns applied to ils
businet~ See National Advertising Co, v
County of Momerey (1970) I C3d 875.
880, 83 CR $77; City of LOz Angeles v
Gage (1954) 127 CA2d 442, 450. 274
P2d 34. in making such a determination,
the decision making body must consider
sevend factors and then balance the pub-
lic gain from removal of the nonconform-
ing uso against the corresponding private
loss. Factors include:
.o the adult business owner's financial
investment in the business;
· the present and actual and depreciated
value of the business improvements;
· the remaining lease term;
· the cost of relocating the business;
LAND USE & ENVIRONMENT FORUM 109
· ,h= abmty of th= business ~nd/or ~nd-
· ~e ~ o= w~ ~e pm~ o~er
~or ~,~ o~= ~iv~ notice
~ =d
lnc. (1983} 149 ~d 633, 197 ~ 127,
s~nbl= ~~co ~ for ~ ~lt
Fa~, ln~ v ~ of Da~ (1990} 792
improvcment~).
Courts are inevitably tu~cd by adult
use operators m scruti3RT~ nmortiz~tion
periods under a st~dard more rigorous
~ "ren3onnblenes$" because of the in.
volvcmcnt of pm~C~.d fu3t amendment
activity. See P#rple Onion. ]n~ v Jack-
· on {ND Ga 1981) 511 F Supp 1207.
COURT~ SHOUt'D Br.
RELUCTANT TO ENTER
Ii'frO Pt. ANNING PROCF.~
Under the doctrine of sq~"ation of
powers, a court should b~ wary of any in.
vitations to sit as a "superplzimcr" or
zoning ~i-t~n-~tor and overrld~ a
city's cofire zordng process. Con~ruc-
lion lndu~ Axx'n ~ City of Paaluma
Cir 1975) 522 F2d 897. As the California
Supreme Court mind in Lockard v
o/Lox Anf¢l~ (1949) 33 _c~d_ 453, 461,
202 P2d 38:
The wlsdam of ~he pmbibldo~s and
~ns ts · man~ for let~l.,;v* d~nalna6on,
and f~n tha~fh a court m~ n~ afn~f
j~fm4r~ /or ~m~ o,f ~ Z~n~f a~fAor~.j
o~Jior~ [Hmpbuls added.!
See also M/nn~ v City o/Az~ua ¢i958),
164 CA2d 12, 330 ~d ~5.
~o~cr ~r ~t ~y
mluc~t m ~ a i~d u~ dbpu=
· a~ when a p~ s=~ m enjoin
city ~ ~o~g
p~nd ~t ~e ci~ w~ suff~ b~d-
SMp (~n~u~ bU~S of Ju n~sb~r-
h~) if ~ hj~fion
Lydo ~e~, Inc. v Ci~ of
fg~ Cb 1984) 745 ~d 1211, 1213.
CONCLUSION
~j~ ~e ~t mi~ ~ ~ f~
vie~g ~ult b~h~ ~. Nev-
s~pd~ ey~ ~ ~d~
~d~ to ~ h ~ ~ d~d-
ILuc~ on smdt~docummin! sa:auhry
P. ffect~, the nnmber of almlattve sites,
and sufficient findings to support tl~ or-
d~n,~ee. They must also ensure that their
case fits the established consdmdomd
Deborah J. Fox is a partner of Freliich, Kaufman. Fox & Sohqi, a firm specializing in zepresenting
[ovm'nnmu ~ h innd us~ and anvironumual mat~s. She has national expedmce in defending muni-
cipalities in complex'civil rights IJfiption brought by adult use operators and has misted municipalities in
drafting constitutionally sound adult use regulations. In addition, she has extensive experience In eminent
domain, environmental, redevelopment law, and land use litigation. Ms. Fox received her Bachelor of Arts,
Political Scienee-Cultursi Amhropolo~, from the University of. Michigan in 1980 and her Juris Doctor from
the University of San Diego Law School in 1983.
\
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,I
CITY OF DELRAY ~EACH. FL
PLANNING t. ZONING DEPAR'rl~£NT
-- J3~fl',4/. B45£ 4~4P $)"SZ'E'M --
ADULT
ENTERTAINMENT ESTABLISHMENTS
~ - AVAILABLE LOCATIONS
MN= REF: LMAg0
MEMORANDUM
TO:
FROM:
SUBJECT:
DATE:
David T. Harden, City Manager
Alison MacGregor Harty, City Clerk
Schedule for Consideration. of
Ordinances
August 6, 1998
Adult
Entertainment
For your information, following is the schedule for consideration
of the adult entertainment ordinances as requested by the Mayor.
1st Reading/lst Public Hearing will be held on August 18, 1998,
at 7:00 p.m.
2nd Reading/2nd Public Hearing will be held on September 8, 1998,
at 6:00 p.m. we'll hold the public hearing in the Commission
Chambers and then move to the conference room for the workshop.
If you have any questions, please let me know.
a /m
cc:
Robert A. Barcinski, Acting City Manager
Susan A. Ruby, City Attorney
Paul Dorling, Acting Planning Director
CITY OF DELRAY BEACH
NOTICE OF CONDITIONAL USE
CHANGE WITHIN THE GENERAL
COMMERCIAL IGC) DISTRICT
The City Commission of the City of Delray Beach, Florida, proposes to adopt
the following ordinance:
ORDINANCE NO. 31-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY
BEACH, FLORIDA, AMENDING CHAPTER 4 "ZONING REGULATIONS", OF
THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF
ORDINANCES OF THE CITY OF DELRAY BEACH BY AMENDING SECTION
4.3.3(AA), "ADULT ENTERTAINMENT ESTABLISHMENTS", BY AMENDING
SUBSECTION 4.3.3(AA)(1), TO PROVIDE THAT NO ADULT
ENTERTAINMENT USES SHALL BE ALLOWED ON PROPERTIES WITH
FRONTAGE ON AN ARTERIAL ROAD OR LOCATED EAST OF THE CSX
RAILROAD TRACKS, ELIMINATING THE DISTANCE REQUIREMENTS
FROM ADULT ENTERTAINMENT ESTABLISHMENTS, AND DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING SUBSECTION
4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF DISTANCE REQUIREMENTS
FROM USES REGULARLY FREQUENTED BY THE GENERAL PUBLIC AND
PROVIDING AN EXCEPTION; BY AMENDING SUBSECTION 4.3.3(AA)(3),
TO PROVIDE MEASUREMENT CRITERIA FROM ALCOHOLIC BEVERAGE
ESTABLISHMENTS; BY ENACTING SUBSECTION 4.3.3(AA)(5) TO
EXCLUDE ADULT ENTERTAINMENT USES IN HISTORIC DISTRICTS AND
ON HISTORIC SITES OR PROPERTIES AND PROVIDING AN EXCEPTION
BY ENACTING A NEW SUBSECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM
FLOOR AREA REQUIREMENTS; BY ENACTING A NEW SUBSECTION
4.3.3(AA)(7), TO PROVIDE THAT PERFORMANCES AND ENTERTAINMENT
MUST BE .FROM A STAGE, SETTING MINIMUM STAGE SIZE
REQUIREMENTS AND SEPARATION REQUIREMENTS FOR NUDE OR
PARTIALLY NUDE PERFORMERS/ENTERTAINERS AND EMPLOYEES
FROM CUSTOMERS, PATRONS, PERFORMERS, ENTERTAINERS OR
EMPLOYEES; BY AMENDING SECTION 4.4.9(D), "CONDITIONAL USES
AND STRUCTURES ALLOWED", BY OMITTING SUBSECTION 4.4.9(D)(1),
TO DELETE ADULT ENTERTAINMENT USES AS CONDITIONAL USES IN
THE GENERAL COMMERCIAL IGC) ZONING DISTRICT; PROVIDING A
SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE
DATE.
The City Commission will conduct two (2) Public Hearings for the purpose of
accepting public testimony regarding the proposed ordinance. The first Public
Hearing will be held on T_U_~S~_AY~_ _AU_G~S'F_~_8, ~ _9~8. ~ AT_7:.0~ pM (or at any
continuation of such meeting which is set by the Commission), in the
Commission Chambers at City Hall, 100 N.W. 1st Avenue, Delray Beach,
Florida. If the ordinance is passed on first reading, a second Public Hearing will
be held on ?_UE_SDAY~_SEpTE_MBER 8, 19_98~AT 6:~00 P.M. (or at any
continuation of such meeting which is set by the Commission).
All 'interested citizens are invited to attend the public 1searings and comment
upon the proposed ordinance or submit their comments in writing on or before
the date of these hearings to .the Planning and Zoning Department. For further
information or to obtain a copy of the proposed ordinance, please contact the
Planning and Zoning De@artment, City Hall, 100 N.W. 1st Avenue, Delray
Beach, Florida 33444 (Phone 561/243-7040), between the hours of 8:00 a.m.
and 5:00 p.m., Monday through Rtday, e~ctudtng holidays.- ·
PLEASE BE ADVISED THAT IF A PERSON DECIDES TO APPEAL ANY
DECISION MADE BY THE CITY COMMISSION WITH RESPECT TO *ANY
MATTER CONSIDERED AT THESE HEARINGS, SUCH PERSON MAY NEED
TO ENSURE THAT A VERBATIM RECORD INCLUDES THE TESTIMONY
AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THE CITY
DOES NOT PROVIDE NOR PREPARE SUCH RECORD. PURSUANT TO ES.
286.0105.
PUBLISH: Bcma Raton News
August. 7, 1998
September 1, 1998
CITY OF DELRAY BEACH
Alison MacGregor Harly
C~J Clerk
Sue ....
Following are the changes which need to be made to the adult
entertainment ordinances.
The headline of the ad for Ord. No. 30-98 should read as follows:
NOTICE OF CONDITIONAL USE CHANGE WITHIN THE GENERAL
COMMERCIAL (GC) DISTRICT AND THE MIXED INDUSTRIAL AND
COMMERCIAL (MIC) DISTRICT, AND PERMITTED USE CHANGE IN THE
MIXED INDUSTRIAL AND COMMERCIAL (MIC) DISTRICT
The headline of the ad for Ord. No. 31-98 should read as follows:
NOTICE OF CONDITIONAL USE CHANGE WITHIN THE GENERAL
COMMERCIAL (GC) DISTRICT
Also, the Mayor wants us to hold a special public hearing on
September 8th instead of waiting until 9/15. So the second
Public Hearing will be held on Tuesday, SEPTEMBER 8, 1998, AT
6:00 P.M.
So the publication date for the second ad run needs to be changed
to September 1, 1998
Please contact the newspaper to make these changes. Thanks.
ORDINANCE NO. ~q I - q~
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CHAPTER 4 "ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS", BY
AMENDING SUBSECTION 4.3.3(AA)(1), TO PROVIDE THAT NO
ADULT ENTERTAINMENT USES SHALL BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON AN ARTERIAL ROAD OR
LOCATED EAST OF THE CSX RAILROAD TRACKS,
ELIMINATING THE DISTANCE REQUIREMENTS FROM ADULT
ENTERTAINMENT ESTABLISHMENTS, AND DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQUIREMENTS FROM USES REGULARLY
FREQUENTED BY THE GENERAL PUBLIC AND PROVIDING AN
EXCEPTION; BY AMENDING SUBSECTION 4.3.3(AA)(3), TO
PROVIDE MEASUREMENT CRITERIA FROM ALCOHOLIC
BEVERAGE ESTABLISHMENTS; BY ENACTING SUBSECTION
4.3.3(AA)(5) TO EXCLUDE ADULT ENTERTAINMENT USES IN
HISTORIC DISTRICTS AND ON HISTORIC SITES OR
PROPERTIES AND PROVIDING AN EXCEPTION; BY ENACTING
A NEW SUBSECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM
FLOOR AREA REQUIREMENTS; BY ENACTING A NEW
SUBSECTION 4.3.3 (AA)(7), TO PROVIDE THAT
PERFORMANCES AND ENTERTAINMENT MUST BE FROM A
STAGE, SETTING MINIMUM STAGE SIZE REQUIREMENTS AND
SEPARATION REQUIREMENTS FOR NUDE OR PARTIALLY
NUDE PERFORMERS/ENTERTAINERS AND EMPLOYEES FROM
CUSTOMERS, PATRONS, PERFORMERS, ENTERTAINERS OR
EMPLOYEES; BY AMENDING SECTION 4.4.9(D),
"CONDITIONAL USES AND STRUCTURES ALLOWED", BY
OMITTING SUBSECTION 4.4.9(D)(1), TO DELETE ADULT
ENTERTAINMENT USES AS CONDITIONAL USES IN THE
GENERAL COMMERCIAL (GC) ZONING DISTRICT; PROVIDING
A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE, AND
AN EFFECTIVE DATE.
WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the "City of
Delray Beach," hereafter the "City"; and,
WHEREAS, the intent of the City Commission of the City of Delray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, and general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commission to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WHEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on the community which include but are not limited to the
following:
U.S. 1132.
City of Renton v. Playtime Theaters. Inc., 475 U.S. 411 (1956), reh. denied, 475
U.S. 873.
Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1975), reh. denied, 429
3. Barnes v. Glen Theater, 501 U.S. 560 (1991).
4. Report on Zoning and Other Methods of Regulating
Amarillo, (Texas) dated September 12, 1977.
Adult Entertainment in
1979.
Regulation of Criminal Activity and Adult Businesses. City of Phoenix, May,
26, 1977.
Findings of the City Planning Commission for the City of New York dated January
7. Detroit's Approach to Regulating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Report on an Ordinance Amending Section 28-73 of the Code of
Ordinances of the City of Houston. Texas; Providing for the Regulation of Sexually Oriented
Commercial Enterprises, Adult Bookstores. Adult Movie Theaters and Massage Establishments:
2 ORD. NO.
and Making Various Provisions and Findings Relating to the Subject. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. Adult Entertainment Business in Oklahoma City. A Survey of Real Estate
Appraisers. Report prepared by the Community Development Department of the City of
Oklahoma City, Oklahoma. Dated March 3, 1986.
12. Adult Entertainment Businesses in Indianapolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County Sheriff's Office report dated April, 1998.
14. Director's Report: Proposed Land Use Code Text Amendment. Adult Cabarets.
A report prepared by the Director of the Department of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commission for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects will not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
WHEREAS, the City also adopts the findings made in the adoption of Ordinances 35-90
and 56-90; and,
WHEREAS, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degradation, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
WHEREAS, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WHEREAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordinance is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
3 ORD. NO.
WHEREAS, the local planning agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan; and,
WHEREAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and enhances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative findings relate to substantial
and legitimate governmental interests; and,
WHEREAS, adult use establishments have operational characteristics which should be
reasonably regulated in order to protect those substantial governmental concerns; and,
WHEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required to
bring the Code in compliance with current law.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH AS FOLLOWS:
Section 1. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishments", of the Land Development Regulations of the Code of Ordinances
of the City of Delray Beach, is hereby amended to read as follows:
(AA) Adult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County licensing requiremellt~,
ki g g 1 ti o...~;~ ......a~;....o; ..... .~ ~. ..... ~. ~. ....a:,;....~ ........... and Section
par n re u a 0ns, ov ................ .. ~ . . e ......... ~ ................... . o v ...... ,
4 ORD. NO.
113.20 of the Code of Ordinances of the City of Delray Beach, the following requirements shall
apply to adult entertainment establishments:
(1) No adult entertainment establishment shall be located on properties with
frontage on an arterial road or located east of the CSX railroad tracks.
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, school, residential zoning district, or community
facilities ~ district (CF, OS. OSR. CD) school where the use is or is to be regularly
frequented by the general public (i.e. community center, parks, school,, courthouse, child care
facilities, offices, etc.) measured from lot line to lot line boundary along a straight airline route,
except when the property containing the adult entertainment establishment is separated from the
above by the 1-95 right-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcoholic beverage establishment, measured from 10t line to lot line
boundary along a straight airline route.
(4) Signage. Only one sign per adult entertainment establishment is permitted,
and such sign shall not extend above twelve (12) feet above ground level or have an area of
greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. All
other restrictions of the sign code shall apply herewith.
(5) No adult entertainment establishment shall be located within an historic
district, on an historic site. or on properties listed on the Local or National Register of Historic
Places, unless the historic district, site or property was previously used for an adult entertainment
type use.
(6) The minimum floor area per room or partitioned area within an adtjlt
entertainment establishment must be 2.000 sq. ft.. exclusive of kitchen, restrooms, storage areas.
and other non-public/customer area of the establishment.
(7) Performers/entertainers or employees in the state of nudity or partial nudity
shall not approach within four feet of patrons, customers, or other employees or other
performers/entertainers, and must perform/entertain from a stage encompassing an area of at least
one hundred (100) square feet.
5 ORD. NO.
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9 (D)(1) and renumbering the remaining list of
conditional uses to read as follows:
(D)
Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
Avenue Overlay District by Section 4.4.9(G)(1)(a) and the North Federal Highway
Overlay District by Section 4.4.9(G)(2).
(1)
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
Section 5. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the
__ day of ,1998.
ATTEST:
MAYOR
City Clerk
First Reading
Second Reading
adult3.ord
rev. 8/5/98
6 ORD. NO.
GREAT£R
DELRAY BEACH
Chamber of Commerce
To:
From:
Re:
Delray Beach City Commissioners, City Manager, P & Z Bc~rd
Members & Staff
Bill Wood, President
Greater Deiray Beach Chamber of Commerce Statement on
Adult Entertainment in Delray Beach
August 1 7, lOCpB
The Greater Delray Beach Chamber of Commerce is, and will alway~ be, this community's
strongest proponent of the free enterprise system. However, our pdmary objective as a
business organization is to do whatever is necessary to ensure the economic health and
vitality of Delray Beach. Free enterprise end economic health w!ll normally ,go hand in
hand. There are exceptions and proposed zoning to allow adult entertainment in Delray
Beach is just such an exception.
Economic development is not just printing a nice brochures, advertising what a great
place Delray Beach is to live or work, providing professional location assistance and other
inforrr~tion. Economic Development is also about the community as a desirable place to
be; it's about image and attitude, people's feelings and perceptions of the community.
One of the reasons that the All America City designation has been so important is that it
underscored Deiray as a community that works together to make the community better
for all its citizens.
Adult businesses, the elements and difficulties that they bring with them, do not enhance
image and attitude about our city. In fact, they harm and detract from a city's image. We
encourage the City Commission to do evenjching within its legal limits to prohibit adult
businesses from locating in Delray Beach. If the Supreme Court has determined that we
must provide locations within the city limits for adult entertainment, then we encourage
you to create a single district in as remc(e a location as possible, one that can be closely
monitored to help ensure the safety a.,~d peace of mind of our citizenry.
64 SE 5th Avenue
Delray Beach, FL 33483 $$1/27g-1380. ext 13
kaguirre~delraybeagh.corn
RECEIVED
AUG 1 ? 199B
PLANNING & ZONING
£ffY flF DELRR¥ EgEflEfl
CiTY AI'TORHEY'S OFFICE
DELRAY BEACH
Ali.America City
DATE: August 11, 1998
TO:
FROM:
2~1~ I,'W l~t ,',','lil-:[~E · DI:.LI,.AY BEACH, FlAW. IDA 3344.1
l'At',qlT.IIl.l., .l() l. 2 ;R-4 755
!
Writer's Direct Line: 561/243-7091
MEMORANDUM
City Commission
David T. Harden, City Manager
Susan A. Ruby, City Attorney
SUBJECT: Adult Entertainment Ordinances 30-98 and 31-98
I am providing you with this summary overview, ordinances and other materials on adult
uses so that this often litigated area of the law will become more familiar to you. The
courts have required that regulation of adult uses must be based lml,z on the secondary
effects of such use and not on personal observations or views on the morality or content
of the expressive content or on the use itself. Valid time, place and manner restrictions
must be narrowly tailored and provide sufficient avenues of expression. The proposed
ordinances contain certain proposed findings as to secondary effects. Ordinances 30-98
and 31-98 have been advertised for a first public hearing on August 18, 1998 at 7:00
p.m. and a second public hearing on September 8, 1998 at 6:00 p.m.
The distinctions between the two ordinances are as follows: Ordinance 30-98 removes
adult uses as conditional uses in the GC and MIC Zoning Districts and allows the adult
uses as permitted uses in the MIC Zoning District. Ordinance 31-98 removes adult uses
as conditional uses in the GC District, but keeps adult uses as conditional uses in the
MIC District.
Both of the ordinances provide for the elimination of the current 1,000 foot distance
requirement between adult entertainment establishments. The distance requirement was
sacrificed in order to have enough potential sites to meet the constitutional requirements
of adequate alternative avenues of expression. While there is no set number of sites that
a court will determine is constitutional, the courts will look to the percentage of land
available for adult businesses, the number of sites with a genuine possibility of use for
adult uses, and the number of sites potentially available for adult uses per city
population.
Augustll, 1995
Page 2
A survey of the cases in Florida shows that the courts have upheld ratios of one adult use
site per 2,182 persons (with 122 available sites) down to one site per 6,761 persons
(with 22 available sites). Boynton Beach's ordinance was upheld with a ratio of one site
per 4,208 persons (with 11 available 'sites). The court struck down a St. Petersburg
ordinance which provided a ratio of I site per 12,565 persons and 19 available sites
because the ratio was insufficient to provide sufficient avenues of expression.
The City's population is effectively 63,600 and includes approximately 53,000
permanent residents and approximately an additional 20% or 10,600 seasonal part-time
residents. Based on other cases, the City would probably be required to provide in the
range of approximately 10 sites (using the Ft. Lauderdale ratio) to 15 sites (using the
Boynton Beach ratios). The number of sites provided are shown in the shaded areas on
the map attached to the ordinance, after applying the distance requirements in the newly
revised ordinances.
Both ordinances prohibit adult uses from fronting on arterial roadways (i.e. Congress
Avenue and Atlantic Avenue)~ This limitation is to shield the surrounding businesses
and the general travelling public from the secondary affects of crime and drug sales and
the urban blight that often accompanies adult uses. The ordinances do not permit adult
uses east of the CSX corridor. The purpose of this restriction is to protect the church
and the neighborhoods near Depot Road from the secondary affects of prostitution, drug
sales, etc. that accompany this type of use. The area around Depot Road is listed in the
Comprehensive Plan as RHB - Rehabilitation -- meaning the neighborhood has numerous
code violations; deteriorated and non-maintained situations; high level of absentee
ownership; significant crime problems and large number of vacant lots. The
Comprehensive Plan emphasizes the need to combat crime in this area and the additional
crime that often accompanies such uses. It is thought that increased crime would not
further the rehabilitation efforts in the area.
The ordinances retain the 750 foot distance requirement from other alcoholic beverage
establishments and the 1,000 foot distance requirement from residential properties and
schools, etc., but provides an exception if the residential use, school, etc. is separated
from the adult use by 1-95.
The ordinances both prohibit adult uses on historic properties that have not previously
been used for adult uses in order to protect and maintain the history, character and
cultural uniqueness of such sites by eliminating the secondary effects on historically
designated properties. I do not believe there is currently any historically designated sites
located within the adult Use boundaries on the map.
Augu~ 11,1998
Page 3
Lastly, the ordinances provide for a stage of at least 100 feet for entertainment and
performances and a separation requirements of 4 feet from patrons where the
performer/entertainer, employee, is in the state of nudity or partial nudity. These
requirements are related to the prevention of disease, and public health and are included
in the ordinance to also minimize crime.
Enclosed are the proposed ordinances, and an article that sets forth some of the law in
this area. The studies and cases referenced in the ordinances are voluminous, therefore,
I am transmitting one set of the supporting documents to the City Clerk so that you may
review the materials. Please call me if you have any questions.
CC.'
Alison MacGregor Harty, City Clerk
Chief Richard Overman, Delray Beach Police Department
Paul Doffing, Principal Planner
Jeff Costello, Senior Planner
Cathy Kozol, Police Legal Advisor
adultl .sar
ROBERT H. FREILICH, P.E.
MARTIN L. LEITNER, P.E. ·
RICHARD G. CARLISLE, P.C. ·
Sir. NJAMiN KAUirMAN
DEBORAH J. FOX ~
MARGARET MOORE $OHAGI
STEPHEN J, MOORE, P.C. i
TERRY O. MORGAN. P.E.
$. IdARK WHITE
ELIZABETH A. GARVIN
DAWN R. ANDREWS t
DAVID D. RICHARDSON 4
AOI41TTCO IN CAe NOI NYj KS4 TX· ORe NC/
LAW OFf'ICES
FR£1LICH, K^UF~^N, FOX ,~ $OH^Cl
THE WILSHIKE LANDM^KK, SUITE 1230
11755 ~(/ILSHIK£ BOULEV^KD
Los AN¢~tts. C^u~o~HI^ 00025-1518
(310) 477-7663
TELEPHONE
(310) 444-7805
IN #ISSOURI
IN TEXAS
ADULT USE ZONING IN THE 90s
BY
DEBORAH J. FOX~
FREILICH, KAUFMAN, FOX & SOHAGI
PRESENTED AT
Annual Planning Conference
· of the
American Planning Association,
Canadian Institute of Planners and
Ontario Professional Planners Institute
TORONTO, CANADA
April 11, 1995
· APRI 3 F:J95
Aduk Use Zon/ng
in the 90s
1994/199~ by The Regents of
she University of California.
Reprinted, with the permission
of the Regents, from Ltmd Use
quarterly journal published
by Continuing Education of
the Bar-California.
A nude jui~ bar---*he latest in aduh'use fa~ otlcring n variety
of bcal*hy fruit juices plus exotic nu~ dancers---may be cc~i~g soon
to your commtnfity. Some might see it as · real LULU ("locally tm-
desi~lc land use") and actively oppose it: others mir. bt say it mc~.ly
pushes *he envelope. Undoubtedly, it wouJd pique people's intcrut and
probably *hrow the city's atiDmeys into *he fray of several consdtmion-
Jl~ tl~rm~th~
lJdg~JOZl ·~X}Ut O01~lli~g sn~l esl,~pllehmq:otS is on tho TISP~
producing horror smri~ about lengthy battles pining pubUc entities
· .,,,~,,*t adult usc operators. National City spent mote ,h,,, six yeats in
Udgadon with C. buck's Booksmte and c~n~ed with a California
Suptezn¢ Court decision vsUda~g its o~-*,cc. Ory ofHa~iorm! Cl~y
v V~ener (19921 3 C4tb 83:Z, 12 Cl~2d 701. In coo~'a~t, Santa Ann.
Whittier. and Cmnien Cvrove each spent mom *hah · d~adc fighting
adult tt~ facilities, with less su~-__~_*. Now that l~s Vegas has been
rceng-i,,.a as *he 'All American City" by 7~me m,..,-,i~c, it is clear
that thc pbenommaon of adult uses is not sknply iimiled ID 8 few
discr~ jurisdictions.
Adult usgs Ftesent a *q_**_qc con, rotation between the l~.w of
zoning, wbtcb allows the will of a majority to control the evolution of
a _,_~,,~munity and shape its character, and the tn'st ameedmgnt, which
ptevents *he majority from supptessing unpopular ,-,i,,ority expression.
An ,x*.gnflv~ body of jurisprudence tuts merged in an attnnpt to tec-
~ tl~ tn~rimble ~atfUc. c See genre'ally, Duwm v C~y of Dnlln~
(ND Te~ 19S15) 648 F Supp 10~51, 10Cfi. Th· confficts do not deal with
any asmu~ restraint on · phindff's particular political afmintinn but
with an opm-amr's destr~ to conduct a s~xuafly oriented business.
Ca~ c.f., ~.Jmd t, Bur~ (1976) 427 US 347,'373 (county's
lmm~a~e dhngssal of mm-l~mm:m emplol,ees held Io violme first
ammdmr, m) wide, ~-I-, ~nrn~ v Glrm T/m3~rr., ~ throe 21, 1991)
115 L Ed 2d $04. I11 S Ct 2456 (nud~ dam:lng m~ly on binges of
pro~'ud lirst amendm~t activity). ~ cousdmdonal debat~ over
pmm~ mmmUy z:qdicit spe~b and eztmminn las sr.~udy ~ ·
new t~h*t. At least one scholar bas mkm tl~ position ttmt pornography,
m tl~ exumt it depicts ~nd cam the subordination of women and *hus
results in *heir disparate tteaunent, is not pmtgct~d expression because
it violates thc eqcaUty principtes of the four~enth amendmcnc See
"Thc Ftrst Ammdmcnt. Under Fire From Ibc L~t." Ncw York T~me~
· MnSezin¢ flvlar. 13. 1994) (moderated dtseu~ien bcrwccn Professor
Catbarinc A. ivhcICtunon and Floyd Abrams).)
I
· The regulation of adult businesses
raises important public Welfare issues. If
adult use operators are allowed to ignore
a city's planning, building, and licensing
requirements under the guise of the first
amendment, the pubUc is placed at risk.
Adult use establishments are recognized
as having the potential for adverse sec-
ondary effects.--crime, prostitution, re-
duced propmy values, degraded com.
merciai districts---and, accordingly, the
city's planning process with respect to
such businesses should be respected. See
Young v Amedcan Mini Theatr~ (I 976)
427 US 50. The community at large and
adjacent property owners, both commer-
cial and residential, have rights and inter-
ests that deserve protection as much 'as
the constitutional rights of the adult use
opera,or.
When judging thc constitutional suffi-
ciency of* an adult use ordinance, courts
examine several issues, including the fol-
lowing:
· Is the ordinance content-neutral?
· Does the ordinance serve · substantial
government interest and provide suffi-
cient alternative sites for the poten*ial
location of adult uses?
· Do permit or Ucense provisions of the
ordinance provide established criteria
on which the decision maker deter-
mines whether an adult use permit
should be issued? Do they provide
sp. ccific and reasonable tilnc periods
for permit issuance? :
· Should the court interject itsetf into
thc city's planning and land use pro-
cess?
Tbls article offers advice to attorneys
for public entities negotiating the twists
and tums of the constitutional journey.
Some may find themselves confronted
with the.~ issues as they update an out-
dated adult use ordinance, while others
may be thrown into litigation when an
adult use operator seeks an immediate
court mUng invaUdating a city's adult use
tegulatioas. Any cs~st will probably be
· spirited one, because bo~ thc first
amendment and the public welfare evok~
such strong ot~nh:ms. See Rossi, IVewr
on Easy Truce: 77~ Police Power p~r3u~
fac F~t Amt~ment, p 106.
CONTENT-NEUTRAl., REGULATION:
Standard of Review
A threshold concern is whether tho
city's planning and building require-
meats nye more onerous with respect to
first amendment activities than other ac-
tivities. A regulation enacted for the pur-
pose of restraining speech on the basis of
content presumptively violates the £ust
amendment. City of Renton v Playtime
Theatre, Inc. (1986) 475 US 41, 46.
Courts will overturn pumit or licens-
ing requirements applied exclusively to
adult uses U' the reguladon'$ only appar-
ent purpose is to suppress protected
speech. Entertainment Concepts, Inc.. III
v Maciejewski (Tth Cir 1980) 631 F2d
497. Content-neutral "time, place, and
manner" regulations, on the other hand,
wU! be upheld if they serve a substantial
governmental interest and do not urn-ea.
sonably limit alternative avenues of com-
munication. City of Renton v Playtime
Theatres. Inc. (1986} 475 US 41, 47.
Regulation of Secondary Effects
In City of Renton. the Supreme Court
upheld · zoning ordinance that prohib-
ited adult motion picture theaters from
locating within 1000 feet of any residen-
*iai zone, single, or multiple-family
dweUing, church, p~k, or school, ny its
terms, thc ordinance was designed to pre-
vent crizne, protect the city's retail trade,
maintain property values, and protect the
community's quaUty of life, not to sup-
press expression of pardcula~ views. 475
US at 48.
.Before City of Renton was decided, it
was uncertain whether adult business or-
dinances were to be reviewed trader the
standard appUed to content-neutral ragu-
latices or under thc higher-scrutiny stun.
dard pppUed to content-based regulation.
The Supreme Court chose to analyze
Renton's ordinance as content-neutral
even though It clearly treated adult the.
ntcrs dlfferendy ~'om other theaters. The
Court reasoned that *'the City CouncU's
'predominate concerns' were with the
secondary effec~ of adult theaters and
not with the content of adult Idms them.
selves." 475 US at 47. Thus, thc ordi-.
hence could be c:htssified as content-ecu.
Ual because it was 'justified without
mferem:g to the content of the regulated
speech.' 475 US at 48, quoting Virginia
Pharmacy Bit v Virginia Citizetu Con.
turner Council, Inc. (1976) 42~ US 748.
The Court went on to nme dmt (475 US
at 49):
at least wilt respect to businesses *hat purvey
sexueUy explicit materials [footnote omlttedl,
nonin8 ordinances desisned to oomba~ ~e ua-
desLrable secondtry effects of such busi.
nesses ere to be reviewed under the standards
applicable to 'eontent-neutnd'* time, place,
and manner regulations.
in the omitted foomote, thc Court quoted
Young v American Mini Theatres (! 976)
427 US 50. 70: "[rJt is manifest that soci.
ety's interest in protecting this type of ex-
pression is cfa wholly different, and less-
er, magnitude than the gate.st in
untrammeled political debate,"
City of Rgnton thus marked a major
shift in the Supreme Court's lust amend.
meat jurisprudence. It is the lust case
where a majority of the Supreme Court
(six justices) recognized that a bierm'chy
of protected speech exists; Le.,-that the
publication of the Pentagon papers, for
example, is entitled to more protection
than the latest X-rated (but not obscene)
videotape. (In American Mini Theatres,
this concept was recognized by only a
plurality of the Court.) See geaeraily,
SDJ, inc. v City of Houston (Sth Cb
1988) 837 F2d 1268.
Following the CiO, o! R~nton exam-
pie, a city's adult use ordinance should
not prohibit adult businesses altogether.
but may restrict their location. Proper
purposes would include protecting the
city's retail trade, maintaining property
values, protecting and preserving the
qunl;ty of the city's neigbbothoods and
the.city's commercial districts, and pro-
tecting the city's quality of life. These
purpose~ should be stated in the ordi-
nance. An ordinance formulated in this
fashion may be categorized and analyzed
as · content-nentral regulation.
An unresolved issue is wbethet, under
Govt C §65858, a city could adopt as an
urgency measure an interim ordinance
that totally banned adult uses in the inter-
est of protecting the"public safety, health
and welfare" (Gert C §65858(a)). Such
a ban arguably lies within the numerous
planning tools that a city has at its dispos-
al in order to experiment with approaches
Io this difficult legal issue, See Young v
American Mlnl. TAeatres (1976) 427 US
$0 (noting cities' need for flexible plan.
ning tools); see also Sc/md t, BorougA
Mt. Ephraim (1981) 452 US 61.75 n18
(noting that not every unit of govern.
anent, no mateet how small must provide
an area for adult use).
A community is entitled m protect
self from the negative secondary effects
of adult u~!. and a ~mall community
LAND USE & ENVIRONMENT FORUM 103
may fi,id that a total b,'m is the only
me,nas to do so. in light of the variatio, s
itl cities' sizes and chaxacteristics, a pub-
lic endty must have flexibility to address
the multi-dimensional problems posed by
adult uses.
Legislators' Intent Irrelevant
Note that a court's review is limited to
the text of the adult use ordinance; the re-
view sbouid not include speculation
about the legislators' intent. City of Rea.
Ion v Ptnytbne 27ttmres, Inc. (1986) 475
US 4 !, 47; Bnmon Corp. v City o. fDay~on
(SD Ohio 1990) '/30 F Supp 80. 85, aff'd
(6th Cb' 1991) 923 F2d 4'70. The fact that
hundreds of residents may have picketed
the adult establishment or expressed
strong moral feelings about its lXasence
in their couununity is Irrelevant to the
cgnstitutionaUty of the ordinance.
SUBSTANTIYE VALIDITY
Once a court determines that an adult
business ordinance is content-neutral, it
then must examine whether the ordi-
nance is designed tO serve a substantial
lovemmeut interest, and whether it al-
lows adequate avenues for the expression
of the restricted speecb. 4'/5 US at 50. ·
Substantial Government Interest
The Supreme Court in City
had no difficulty determining Ihat the or-
dinance in question met the substami,'d
govemment.-d interest element of its test.
The Court stated (4~/$ US at 50): 'Aa a
majority of this Court recognized itl
American Mini 77temres, ncity's 'interest
in attempting to preserve thc quality of
urban Ufa is one that must be accorded
high respect.' [Ciugion.] Exactly the
same viUd governmenud interests nrc at
stake here."
In City of Ration, the Ninth Circuit
had invalidated the city's adult business
ordinance. The Ninth Cbcult held that
out the benefit of st~les specifically
latlni to the "panlcuL~ problems or
_~__~$ of Renton," the city's justLqcadon
for ~e ordinanee was "eonclusory and
speculative." Playtime Theaters v CLT of
Remoa (gth Cb 1984) 748 F2d $27, $37.
The Sul~eme Com~ however, held Ihat
this burden of proof was 'unnecessr.,~ly
rigid." 4'/5 US at ~d}. The Court noted
that, in adopting its ordinnnce, Renton re-
lied heavily on the e,xper~ence of the City
of Seattle (whose oidinanc~ was upheld
in Nonhend Cinema v City of Seattle
104 SPRING leg4
(1978) 585 P2d 1153). The Court held
that soch reliance was justified and
constitutionally sufficient (475 US at 51 ):
Renton was entitled to rely on the experiences
of Seattle and other cides, and in particular on
the "detailed findinss" summarized in the
Washington Supreme Coun's ~/ortbend Ciao.
ma opinion, in enacting its adult theater
lng ordinance. The lrust Amendment does eot
reqube a city, before eoactin$ such an ordi-
nance, Io ennduct new smdles or produce evi-
dence independent of that nb'andy generated
by other cities, so long as whatever evidence
the city s~§es upon b re.a:onably b~licv~d to
be ndgvam m th, lxobiem that the (:it), ad-
dresses. [F.q~asb addd.!
[~]0 not
overlook the in-ho~e
experience and
capabilities of the
planning, police, and
health service
departments. For
example, ifa community
has an existing adult use
facility that has generated
a disproportionately
high number of calls for
police service, such
daia is crucial tO telling
the story of the resource
drain caused by the
effects of adult
uses in a
community.
XXX
A ~ewly enacted adult ordinance
should state that it relies on the ostab-
lisbed case law and experiences of other
A host of studies on adult uses exist.
including those done by Seatde, Phoenix,
indianapolis, Los Anleles, Garden
Grove, C. altfomla, and Austin, Texas, as
well as the U.S. Attorney General's 1986
Report on Pornography. Public entities
mid their n,tomeys should review these
studler, if any m'e relevant to the experi-
ence of the enacting jurisdiction, those
studies sbould be cited spccifi'cally in the
text of the ordinance. ALso consider' in.
eluding citations to any case authority on
which the enUty relies in its £mdings of
need to combat adverse secondm-y effects
of adult faculties.
Finally, do not overlook the in-house
experience and capabilities of the plnn.
nine, police, and health service depart.
meats. For example, if a community hn~
an existing adult use facility that has gen-
erated a disproportionately high number
of calls for police service, such data is
crucial to teUing the story of the resource
drain caused by the effects of adult uses
In a community. Some jurisdictions have
conducted surveys of real e~tate brokers
within the community to show the reduc-
tion in property values attributed to adult
facilities. Thc data should be offered in
support of thc ordinance and to confirm
the jurisdiction's concern about second-
ary effects. Such findings are all that is
nece_~_~a."y to meet the government inter-
est pordon of the C~ty of~e~on test. See
Lakeland lounge v' City of Jackton (Sth
Ch' 1992) 973 F2d 125~.
In SDJ, Inc. v City of Houstbn (Sth Cb.
1988) 837 F2d 1268, 1274, the Fifth Cir-
cuit Court of Appeals explained that in
reviewing adult business ordinances,
courts go beyond the review of nonmfl
legislative acts, but only to the extent of
insisting on objective evidence of put-
pose, .La., a study orfinding~:
ia~i~tin$ upon findinls mduce~ the risk thai
· purported effort m Yegulate effe~ i~ a mask
for regulation of content. That is. evidence oi
legitimate purpose is supported by proof dmt
secondary effects ~tuaUy exist and are dm
result of the business subject to the regula-
tion.
Although the findings in a city's ordi-
nance must meet the sumdard set by Ci~.
oj'/~emo~, this standard is not a daundng
one. A look at the fncu of City of R~mon
demonstrates, as the Nine~ Circuit ob-
served, ~t Re "record ixesented by
Renton to support its asserted interest in
enactinl the zoning ordinance [was] very
Itfln." Plnyame 771~ten v City of Remon
(gth Cb. 1984) '/48 F2d :527, :536; see also
(1985) 4?$ US 41, 60 (Brennan, J. dis-
seating). Yet thc majority of the Supreme
Court had ne problem holding that the
findings (adopted weel~ after thc ordi-
nance) were cle,'trly su~cient to support
the ordinance. See also imernmio~ml
Food & Beverage $y$. v City of Fon 1.~-
to relocate was actually much higher. Un-
der the ordinance, n single store that sold
two kinds of adult entcrt~nment was
considered a multiple business and each
operation had to meet the separation start-
(lards, Thus, that operator would need
two relocation sites rather than one. By
drafting its ordinance in this fashion, Los
Angeles ran afoul of the Ninth Cbcuit's
prior decisions rejecting separation re-
quirements that can si~ificantly reduce
available sites.
Exhibiting some disdain for the Su-
preme Court's reasoning in CiD' o/Rea-
ton, Topanga Press also adds a new layer
of analysis'to dete'rntine if suff~em al.
ternatives exist. It requires consideration
of whether a spectfic relocation site is
'part of the relevant market" and rejects
Cio o/Ren~on's "money-blind" test. 989
F2d at 1530. The Topanga Pre3s panel
simply gave no heed to the fact that the
property considered in CiD' o/Rer~on
was in all stages of development Includ-
Ing: {!) a sewage trcannent plant; (2) ·
horse racing track and environs; (3) a
warehouse and manufacturing facilities;
(4) a Mobil OH tank farm; and (5} a fully
developed shopping center. Playtime
~TJeatcr$ v CiD' of RenMn (gth Cir 1984}
?4g F2d 527, $34.
The Ninth Circuit offered limited cri.
tcrin for determining whether sites are ac-
tually in the "relevant market" (989 F2d
nt 1531):
· Is there a genuine possibility that the
site is potentially available? In other
words, is it rnasonable "to believe that
[the site] would ever become available
to any commercial enterprise?"
· If the sites are in manufacturing or tn-
dus~al zones, a~o they reasenably ac-
~_*sible to the general public?
· If the sites are in manufacturing zones,
do they have a proper infrastructure
such as sidewn~b_*, road and lighting?
mercial enterprise?
· Are tbe sites __~gm,,,orcially zoned?
The Toponga Pre.~s Tmnel clearly re-
jeered Los Angeles' attempt to Include
harbor of me Ptm of I..~ Ant, des. Itaho
reJected inclusion of sites that were Imrt
of the van Nuys Ah'port, Children's Hns-
piml, large oiJ refineries, or landfills,
finding such sites were simply not suit-
able to some generic commercial enter.
prise. (Los Angeles did not employ an
outsick: expeFt witness or use its own
planning director to testify about the
number of available sites within the city.)
To avoid the pitfalls of Topanga Press.
questionable acreage of the tTpe de-
scribed as outside thc "relevant real es-
rate market" should be excluded from the
final count of alternative sites. Also, a
city can undertake a "mapping" process
that calls out the number of alternative
A good
precautionary
measure is to place
in the administrative
record a report from the
city ~ planning director
stating that he or she
has examined the
ordinance'~ criteria and
found 'x" nttmber of
alternative sites. Such a
determination is
entitled to great weight
in litigation
challenging the
ordinance.
XXX
sites available under the specific dimno=
and separation limitations being consid-
ered. State of the art phum~g eoftware
~un be used to generate altn~ativo sco-
mrios to assist in the £mal selection of
distance res~ctious. The computer-gen-
erated maps can then be included in the
admin'tstmtive record and designated at
the adolxion hearing as ~ 'official"
map for alternative sites for the commu-
nity.
Building a Record About lite
City and Itt Demograpblc$
TI~ interpretation of a municipal ordi-
nance or resolution is governed by the
same rules that apply to statutes. C-Y
Dev. Co. v City of Redtar~ (J982) 137
CA3d 926, 929, 187 CR 370. Courts gen-
erally defer to the interpretation of an or-
dinance or statute advanced by those who
enforce it for two reasons: Itu'st, courts
respect a government agency's compe-
tcnce, expertise, and experience. See
c~c Legal Found. v Uncmployme~l ln~.
Apptal~d. (198D 29 C3d 101, i11,172
CR 194. Seeondz courts recogntze that
contemporaneous, expre~ions of opinion
about the construction of a statute by the
officials charged with its enforcement are
important indicators of tho probable gert-
er'al understanding of the times and the
drafters. Nelson v Dean (1946) 27 C2d
873, $$0, 16~ P2d 16.
A good precautionary measure is to
place in the administrative record a report
from the city's planning director stating
that he or she has examined the ordi-
nance's criteria and found "x" number of
alteraative sites. Such a determination is
entitled to groat weight in litigation chal.
lending the ordinance.
PERMIT OR LICENSE
REQUI]TEMENTS
Licensing or permit schemes, such as
conditional use permit requirements, are
a justifiable means of regulating second-
m7 effccts of adult uses. They are subject
to chalJenge, however, if they do not pro-
vide specific standards for issuance of a
permit, or if they do not require public of-
ficials to act on a permit application with-
in a reasonable time.
Specific Standards
The criteria for determining whether
to grant or deny an entitlement must not
be imix.;rmissibly vague or vest unfet-
tered discretion in the decision maker.
People vHatltau (1986'} 182 CA3d Supp
!, 227 CR 664.' 'l"na crucial Issue is
whether the criteria have been tailored to
ensure that lx~ected s~ech will not be
suppressed. CiD,
Dear, Pub~/dn8 Co. (1~88) 486 US
'/50 0nvalldattng requbement for annual
permit to operate news racks because
mayor was [ranted unbridled discretion
to impose terms and thus to deny per-
mits). See also Dele v ¢~D' o/'An~eim
(CD Cai 1993) 826 F Supp 336 (invali-
dating adult use ordinance requiring only
findings that adult use would not bc delhi-
mental to general health, safety, or wel-
fare).
108 S~IING 1994
An ordinance that provides no stan-
dards at aH for Ute issuance of n permit is
unconstitutional. Sec, e.g., F.~otic World
News v City of Appleton (ED Wis 1980)
482 F Supp 1220. la contrast, clearly set
standards preclude any argument that the
decision maker has been given unbridled
discretion to grant or deny exceptions.
FW/PB$, Int. v City o/'Dall~s (1990) 493
US 215. The ordinance should not de-
mnnd the submission of irrelevant data
· bout an applicant's past in order to ob-
tala · license or permit. Genoa v City of
Peorfa ('/th Cir 1980) 619 F2d 1203 (in-
validating Peoria's requb'cment Ibat ap-
plicant be of 'good moral character" as
lodging too much discretion in decision
maker).
In People v N~leau (1986) 182 CA3d
Supp I, 227 CR 664, the court rejected a
challenge to a Los Angeles County adult
business ordinance, holding that objec-
tive, though unquantified, stanclanls are
not unconstitutionally vague. The court
stated that the ordinance's provisions
sbould "govern exclusively the physical
appearance and relationship of the [adult
business] to other uses" rather than en-
gage in an L~permissiblc "moralistic
litany." 182 CA3d Supp nt 9. The court
went on to validate all of thc requ~'e-
meats of the ordinance, including provi-
sions requiring that the sites be "suffi-
ciently buffered" from a residential area
and that the exterior appearance be con-
sistent with adjacent commerci,'d struc-
tures. But see Dease v City of A~mheim
(CD Cai 1993) 826 F Supp 336, 344
(striking down ordinance that included
the latter two conditions on ground that
ordinance gave planning conunission un-
constitutional discretion to grant or deny
CUP)
Specific and Reasonable Time Limits
In F1F/PB$, inc. ~ City o.f Dall~s
(1990) 493 US 215, the Supreme Court
invalidated Dallas' discretionary adult
use permit provision because it failed tO
set a time limit within which the pe~t
bad to be ~ranted or denied. (The Coma
did not roach the issue of whether the
c4ty's licensing scheme vested uncon.
stitutional discretion in thc bands of the
decision maker. 493 US at 227.) The
Court provided a two*part test fo~ asses-
sing thc sufficiency of an adult ordinance
on this point: (i) the city must decide
witcthcr to issue thc liceuse within n spe-
.c~ified and tecsonable time period during
which the status quo is maintained; and
(2) prompt judicial review must be avAil-
able.
The Dallas ordinance required the po-
lice chief to render a decision on the
quested license within 30 days but also
required the business premises to pass
certain inspections before Ibc liecme was
granted. Because no time limit was
posed on those inspections, the Court
found the ordinance to be constitutional-
ly deficienL See also People v L~brary
One, Int. (1991) 229 CA3d 973, 280 CR
400; J.L 77mma~, In; v Coanty of Las
Angeles (1991} 232 CA3d 916, 283 CR
815; World W'~e Video, lac v City
Tukwila (Wash 1991) 816 P2d 18: Adult
£ntenainment Or., Inc. v Pierce Coaruy
(Wash App 1990) '/88 P2d !102.
In California, CCP §§1094.$ and
1094.6 provide for prompt judicial re-
view while Allowing the possibility of
Jmmedhtc relief tttrough issuance of an
alternative writ on ex pang notice (CCP
§ 1088). Further, · petition for perempto-
ry writ of mandate can be bearcl within 15
days lifter service of · noticed motion.
CCP §1094.
An adult use ordinance should provide
that an applicant be notified simulta-
neously of (!) the decision on the permit
application and (2) thc right to judicial
review unde~ CCP §§ 1094.5 and 1094.6.
LEGAL NONCONFORMING USF. S
An adult use operator may attempt to
establish a business before the city adopts
a constitutionally sound ordinance and
then' claim that the operation is a legal
nonconforming use. "Nonconfomting
use" is merely a short-hand term for a use
that has a vested right to exist, but be-
comes lava/id by subsequent regulation.
City o/LOs Angeles v Gage (1954) 12'/
CA2d 442, 453, 274 P2d 34.
Vested Rights
The doctrine of vested rights is based
on equitable estoppel, a principle that
may be applied qalust ,he government
when justice and fairness ~luire iL Santa
Monica Pines, idd. v Renu Comrol lid.
0984) 35 C3d 858,
obudn · vested right, · imf-ny owner
must perfm'm submmdal work and incur
substantial Unbilidcs ia Iood faith re-
fiance on · permit issued by · govem-
mcnt,'d agency. Avco Community Devel-
opers, Inc. v South Coa~t Regional
Comm'n (1976) 17 C3d 785, 791, 132
CR 386.
Often a race develops, with the adull
use operator trying to bring its facility on
linc before the city can enact a new and
improved adult use ordinance. Speeding
up one's timetable in a calculated effort
to escape impending land use controls is
not "good faith" action and, therefore,
cannot establish · vested right. Aires De~:
Co. v California Coaslal Zone Con~erva-
lion Comtn'n (1975) 48 CA3d 534, 548,
122 CA 315; see also South Coast Re.
gionai Comm'n v Higgins (1977) 68
CA3d 636, 646, 137 CR 551.
Reasonable Amortization Period
It' · business is a legal nonconforming
use, a city may cl~ninate it by paying jnst
compensation or require its removal after
a reasonable ~mordzadon period. City of
Los Angeles v Gage, supra.; United Busi.
ne$$ Comm 'n ~ City of San Diego (1979)
91 CA3d 156, 179, 154 CR 26~. The un-
derlying concern is to ensure that
amortization period allows a landowner
a reasonable opportunity to recoup his or
her invesnnent.--an issue that is deter-
mined by the facts of each case. (Note
that federal coum have shown disdain
for amortization periods and instead, pre-
fcrred the "grandfather clause" approach
adopted by the city of Detroit in Ameri-
can Afini 27,ea.'e~.) The fact that federnl
courts are generally more receptive to
challenges to adult use ordinnnces means
that plaintiffs will usually uT to litigate
their cases in federal court.
In California, the burden is on the
plaintiff to prove that the amortization
period is unduly short as applied to its
business. See Natlonal.4dveni~in~ Co.
County of Momerey (1970) I C3d 8'/5,
880, 83 CR 577; City o/~s Angeles
Ga~e (1954) 127 CA2d 442, 450, 274
P2d 34. In making such a determination,
the decision making body must consider
several factors and then balance thc pub-
lic gain from removal of the nonconform-
ing use against thc corresponding private
loss. Factm~ include:
~ the adult bosiness owner's fin,'mcial
4nvesunmt in the business;
· the preaent and actual and depredatcd
value of the business improvements;
· the ~.~lainJng lea~ term;
· the cost of relocating the business;
LAND USE & ENVIRONMENT FORUM IO9
· thc abifit¥ of the business and/or land-
owner to change the use to a
ins use;
· the dam on which the prupertT owner
and/or bu.~css owner reecived notice
of th~ uonconf~,,Ang stares of thc
· tl~ effecU on the b~sith, safety, and
wetfa~ of the surrounding bus~ncases
and us~ if the adult business is
lowed m open-a~ bcyoad the proposed
momezdun pcriod~
Mtrrow. tdla, lac.. v CbT of ~ Dltgo
(1980} 25 ~d 848, i~ CR 510.
In ¢i:y of Whtnl~r v Watnut Props.,
lnc. ¢198]} 149 CA3d 633. 197 CR 127,
the court found that 30 deys was a rea-
seeable amord'-,*~ou I~od for an adult
treater that merely needed to ciums¢ its
firm rcutal ptoecdurcs in order m comply
with the new orm~,nce- Sec also ~.J'~
Fare, Inc. ~, Cio/ofDalla: (1990) 792
S~2d 569 (three-year amortization l~ri-
od for topless dancing csmbitstunmt per-
· ~i*~iblc); F~l v City o.f Corona (gib
198~) 767 F2d 6~$ (invalida~ug 60-day
amo~,~*~ou pc~od where pLeindff had
five-year imuc and had mad,, substantial
Lmprovemmts).
Courts arc inevitably urged by adult
USc ol:~'ators to S~o!vi~i?~ antotl.~fion
pcrincts trader a stanctard more rigorous
than "rea~onablecess" because of thc in-
volvc~ncnt of protected first amencim~nt
activity. Sec Purplt Onio~ ln~ v 7ack.
~on (N~D Ga 1981) fill F Supp 120,1.
COURTS SHOULD BE
RELUCTANT TO ENTER
INTO PLAI~HG PROCF.~
Under the dc~c of separation of
powcrs~ a court Should be wary of any In-
vitadons to sit as a "supupLumer' or
zoning ~tramr and override a
city's co*~rc zoning pmec~. Con, rue.
t~n ?adu~. Affn v C~ of P~aluma (gib
Cir 19,15) ~22 F2d 89'1. As the Califor~a
Supreme Court stated in/~c~rd v City
ofl~$Angele$ (1949) 33 C2d 453,
202 P2d 38:
The wisdom of the prohibitions and ~su'ic.
~os is · man~ for I~sid~ve dmrminadoa,
and ~tn t~#~h ~ c~un m~. ~ mlr~¢ w~h
Sec ~Uso M/nngy v City ofAzu:a t'i958),
154 CA/d 12, 330 P2d 2~5.
Another factor tl~t may ~k~ coum
reluctant m cuter a land uso dispu,,, is
that, wbcn a ptet~ff seeks m enjoin a
city f~x~n g~orcing its ordimmccs, it is
presumed that the city will suffer hard-
ship (continued bUghtin8 of its neighbor.
Lydo ,F. rutr~., Inc. v City of La: Vegas
¢gth Cb 1984) 745 lr2d 1211, 1213.
CONCLUSION
I~ Ci~ of l~¢mo~ the Supmne
rejected th~ activist role tim some federal
courts had previously undcmken in re.
view4.u8 adult business ordinances. New
erthclcss, couru have consisumdy
· ~ie~ adult me restri~ons with a
skeptical eye. For cities to overcome this
skepticism they. must give psinmlclng
augndcu to degaS1, in ch-af~n! m' defend.
liancc on smdt~,decummin! sccood~
effects, the manber of siua~afive rites,
and sufficient findings m support tha or-
dinanec. The), must also ecsure ttmt their
case fits the &mblished consdmdoual
Ddx3fah J. Fox is a partner of FreHich, Kaufman. Fox & Sobagi, a firm ~p~Azlizing In representing
~ovmunent entities in land ur~ and environmental mattm. ~he has national experfenec in defending muM-
ctpalities in complex'civil righ*.s litigation brought by adult use operators and has assisted municipalities in
drafting comtitutionelly sound adult use regulations. In addition, she has extensive experience In eminent
domain, environmental, redevelopment law, and land use litigation. Ms. Fox received her Bachelor of Arts,
Political Scienec-Culmrsi Anthropology from the University of. Michigan in 1980 and her Juris Doctor from
the University of San Diego Law School in 1983.
JR¸
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ADULT
ENTERTAINMENT ESTABLISHMENTS
~ - AVAILABLE LOCATIONS
)L~a I~[r': LMA90
ORDINANCE NO. 30-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CI-La. PTER 4 'ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS', BY
AMENDING SECTION 4.3.3(AA)(1), TO PROVIDE THAT ADULT
ENTERTAINMENT USES SHALl, NOT BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON ARTERIAL ROADS OR
LOCATED EAST OF THE CSX RAILROAD TRACKS,
EIJMINATING THE DISTANCE REQI.EREMENT BETWEEN
ADULT ENTERTAINMENT ESTABLISHMENTS, DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQUIREMENT USES REGULARLY FREQUENTED
BY THE GENERAL PUBLIC AND PROVIDING FOR AN
EXCEPTION; BY AMENDING SECTION 4.3.3(AA)(3), TO
PROVIDE MEASUREMENT CRITERIA FROM ESTABLISHMENTS
SERVING ALCOHOLIC BEVERAGES; BY ENACTING
4.3.3(AA)(5), TO EXCLUDE ADULT ENTERTAINMENT USES IN
HISTORIC DISTRICTS, ON HISTORIC SITES AND PROPERTIES,
AND PROVIDING FOR AN EXCEPTION; BY ENACTING
SECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM FLOOR AREA
REQUIREMENTS; BY ENACTING 4.3.3(AA)(7), TO PROVIDE
THAT PERFORMANCES AND ENTERTAINMENT MUST BE
FROM A STAGE, SETTING FORTH MINIMD'M STAGE SIZE
REQUIREMENTS, AND SEPARATION REQUIREMENTS FOR
NUDE OR PARTIALLY NUDE PERFORMERS/ENTERTAINERS OR
EMPLOYEES FROM CUSTOMERS, PATRONS, PERFORMERS,
ENTERTAINERS OR EMPLOYEES; BY AMENDING SECTION
4.4.9(1)) 'CONDITIONAL USES AND STRUCTURES Al.LOWED",
SUBSECTION 4.4.9(D)(I), DELETING ADULT ENTERTAINMENT
USES AS A CONDITIONAL USE IN TH~ GENERAL
COMMERCIAL (CC) ZONING DISTRICT AND PROVIDING FOR
RENUMB~G; BY AMENDING SECTION 4.4.19(B),
'PRINCIPAL USES AND STRUC'rURES PERMITTED" BY
ADDING SUBSECTION 4.4.19(B)(7), TO PROVIDE FOR ADULT
ENTERTAINMENT USES AS A PERMITTED USE IN THE MIXED
INDUSTRIAL COMMERCIAL (IV[lC) ZONING DISTRICT; BY
AMENDING SECTION 4.4.19(D), ``CONDITIONAL USES AND
STRUCTURES ALLOWED", BY DELETING SECTION 4.4.19(D)(1),
DELETING ADULT ENTERTAINMENT USES AS A
CONDITIONAL USE IN THE MIXED INDUSTRIAL COMMERCIAL
(MIC) ZONING DISTRICT AND PROVIDING FOR
RENUMBERING; PROVIDING A SAVINGS CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
WHEKEAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the ``City of
Delray Beach," hereafter the "City"; and,
WHEREAS, the intent of the City Commission of the City of Delray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, and general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commission to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WHEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered repons, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on the community which include but are ndt limited to the'
following:
U.S. 1132.
City of Renton v. Pla_vtime Theaters. Inc., 475 U.S. 411 (1956), ~, 475
U.S. 873.
Young v. American Mini-Theaters. Inc., 427 U.S. 50 (1975), reh. denied, 429
3. Barnes v. Glen Theater, 501 U.S. 560 (1991).
~g.p. ort on Zonine and Other Methods
(Texas) dated S~,~mber 12, 1977.
of Re~latine
Adult Entertainment in
1979.
e
Retralation of Criminal Activity and Adult Businesses.
City of Phoenix, May,
26, 1977.
Findings of tl~ City Planning Commission for th~ City of New York dated January
2 ORD. NO. 30-98
7. Detroit's Approach to Regulating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Renort on an Ordinance Amendin~ Section 28-73 of the Code of
Ordinances of the City_ of Houston. Texas: Providing for the Regulation of Sexually Oriented
Commercial Enterprises. Adult Bookstores. Adult Movie Theaters and Massage Establishments:
and Making Various Provisions and Findings Relating to the Subject. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Re/~ort on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. ,Adnlt Entertainment Business in Oklahoma City. A Survey
~. Report prepared by the Community Development Department
Oklahoma City, Oklahoma. Dated March 3, 1986.
of Real Estate
of the City of
12. Adult Entertainment Businesses in Indiananolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County SheriWs Office report dated April, 1998.
14. Director's Report: Proposed Land Use Code Text Amendment. Adult Cabarets.
A report prepared by the Director of the Deparunent of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commi.~sion for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects will not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
~, the City also adopts the findings made in the adoption of Ordinances 35-90
and 56-90; and,
~, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degradation, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
3 ORD. NO. 30-98
WHE~, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WI-~REAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordinance is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
WHEREAS, the local plan~g agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan; and,
WHEREAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and enhances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative l~mdings relate to substantial
and legitimate governmental interests; and,
~, adult use establishments have operational characteristics which should be
reasonably regulated in order to protect those substantial governmental concerns; and,
WHEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required tn
bring the Code in compliance with current law.
NOW 'I'H~.I~I~ORE, BE 1T ORDAINED BY THE CITY COMMISSION OF TIlE CITY
OF D~'tRAY BEACH AS FOLLOWS:
4 ORD. NO. 30-98
~. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishinents", of the Land Development Regulations of the Code of Ordinances
of the City of Delray Beach, is hereby amended to read as follows:
(AA) Adult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County licensing requirements,
king gui ti ----:~' "~"":':~-~: ..... '~ '" ..... "'~ .... ":':~-~' .... ~
par re a ons, -,v ............... v ........ ~ ................... P:cc::~',
113.20 Of the Cod{: of Ordinances of the City of Delrav Beach. the following requirements shall
apply to adult entertainment establishments:
(D No adult entertainment establishment shall be located on nro~erties with
frontage on an arterial road or located east of the CSX railroad track.
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, school, residential zoning district, or community
facilities Zllllhlg. district (CF, OS, OSR, CD) ::hacl where the use is or is to be re~larly
freauented by the general public (i.e. community center, turks, courthouse, child care facilities.
of'flees, etc.) measured fi'om lot line to lot line boundary along a straight airline route, exeent
when the property_ containing the adult entertainment establishment is separated fi'om the abov~
by the 1-95 right-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcoholic beverage establishment, measured from lot line to lot line
boundary along a straight airline route.
(4) Signage. Only one sign per adult entertainment establishment is permk~cl,
and such sign shall not extend above twelve (12) feet above ground level or have an area of
greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. All
other restrictions of the sign code shall apply herewith.
(S) No adult entertainment establishment shall be located within an historic
district, on an historic site. or on nrotmrties listed on the Local or National Reeister of Historic
Plac~_ nnl~,~(~ the hi~ofie district, site or trropertv was previously used for an adult entertainment
ORD. NO. 30-98
(6) The minimum floor area ncr room or ~artitioned area within an adult
entertainment establishment must be 2.000 ~q. ft.. exclusive of kitchen, restrooms, storaee areas.
and other non-public/customer area of the establishment.
(7) Performers/entertainers or employees in the state of nudity_ or partial nudity_
shall not annroach within four feet of oatrons, customers, or other emnlovees or other
nerforrners/entertainers, and must nerform/entertain from a sta~e encompassing an area of at least
one hundred (100'} square feet.
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9(D)(1) and renumbering the remaining Iist of
conditional uses, to read as follows:
(D)
Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
Avenue Overly District by Section 4.4.9(G)(1)(a) and the North Federal Highway
Overlay District by Section 4.4.9(G)(2).
Section 3. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.19, "Mixed Industrial Commercial (MIC) District",
Section 4.4.19(13) is hereby amended by adding subsection 4.4.19(/5)(7) to read as follows:
ce)
Princioal Uses and Structures Permitted: The following types of use are allowed
in the MIC district as a permitted use:
Cfi Adult Entertainment Establishments (subiect to Section 4,3.3(AA~
~ecfion ~. That Chapter 4, Section 4.4.19(D) of the Land Development Regulations is
hereby amended by deleting 4.4.19(D)(1)(a) to read as follows and renumbering~relettering the
remaining conditional uses:
(D) Conditional Uses and Structures Allowed:
0)
The following uses are allowed as conditional uses within thc MIC
Zone District:
6 ORD. NO. 30-98
~. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
S~tion ~. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
~. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the
day of ,1998.
ATTEST:
City Clerk
First Reading
Second Reading
MAYOR
ORD. NO. 30-98
TABLE OF CONTENTS
City. of Renton v. Playtime Theatres. Inc., Appeal from the U.S. Court of Appeals for
the Ninth Circuit, February 25, 1986.
2. Young v. American Mini-Theaters. Inc., 427 U.S. 50 (1975).
3. Barnes v. Glen Theatre. Inc., 501 U.S. 560 (1991).
Report on Zoning and Other Methods of Regulating Adult Entertainment in Amarillo,
(Texas) dated September 12, 1977.
5. Regulation of Criminal Activity_ and Adult Businesses, City of Phoenix, May, 1979.
Findings of the City Planning Commission for the City of New York dated January 26,
1977.
Detroit's Approach to Regulating the "Adult Uses" presented to American Institute of
Planners, Annual Conference, October 10, 1977.
Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas dated September 14, 1982.
Legislative Report on an Ordinance Amending Section 28-73 of the Cod~ of
Ordinances of the City of Houston. Texas: Providing for the Regulation of Sexually
Oriented Commercial Enterprises. Adult Bookstores. Adult Movie Theaters and
Massage Establishments: and Making Various Provisions and Findings Relating to the
Subject. Report prepared by the Committee on the Proposed Regulation of Sexually
Oriented Businesses and dated 1983.
10.
Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin,
Texas dated May 19, 1986.
11.
Adult Entertainment Business in Oklahoma City. A Survey of Real Estate Appraisers.
Report prepared by the Community Development Department of the City of Oklahoma
City, Oklahoma dated March 3, 1986.
12.
Adult Entertainment Businesses in Indianapolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County Sheriff's Office Report dated April, 1988.
14.
Director's Report: Proposed Land Use Code Text Amendment. Adljlt Cabarets. A
report prepared by the Director of the Department of Construction and Land Use of the
City of Seattle, Washington dated March 24, 1989.
SUPRESIE COURT OF UNITED STATES
No. 84-1360
CITY OF RENTON, ET AL., APPELLANTS v.
PLAYTIME THEATRES, INC., ET AL.
ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR TIlE NINTH CIRCUIT
[Februa~ 25, 1986]
JUSTICE BRENNAN joined by JUSTiCE MARSF. ALL,
dissenting.
Renton's zoning ordinance selectively imposes limitations
on the location of a movie theater based exclusively on the
content of the films shown there. The constitutionality of
the ordinance is therefore not correctly analyzed under
standards applied to content-neutral time, place, and manner
restrictions. But even assuming that the ordinance may
fn{rty be char~terized as eontent-neutr~ it is p]~{nly uncon-
stitutional' under the standards established by the decisions
of th. is Court. Although the Courts analysis is limited to
cases involving "businesses that purYey sexually explicit
materisJs," ar~te, at 7, and n. 2, and thus does not affect our
holdings in cases involving state regulation of other kinds of
speech, I dissent.
I
"IAI constitutionally permissible time, place or manner re-
striction may not be based upon either the content or subject
matter of speech." Consolidated Edi. so~. Co. v. Public Set%,-
ice Ccrrnrn'n ofN. Y., 447 U. S. 530, ~6 (19S0). The Court
asserts that the ordinance is "aimed nog at the co'nte'~t of the
fi]ms sho~m at 'adult motion picture theatres,' but rather at
the secondary effect~ of such theatres on the surrounding
community," ante, at 5 (emphasis in original), and thus is
84-1360--DISSENT
RENTON v. PLAYTIME THEATRES, INC.
simply a time, place, and manner regulations' TMs analysis
is misguided.
The fact tlmt adult movie theaters may cause ~ "sec-
ondary~ land use effects may argtmbly give Benton a compel-
ling reason to regulate such establishments; it does not mean,
however, that such regulations are content-neutral. Be-
cause the ordinance imposes special .restrictions on certain
kinds of speech on the basis of conWr~, I cannot simply ac-
cept, as the Court does, Benton's el~{m that the ordinance
was not designed to suppress' the content of adult movies.
"[W'Jhen regulation is based on the content of speech, govern-
mental action must be scrutinized more carefully to ensure
that communication has not been prohibited ~nerely because
public of Ii~]~ disapprove the speaker's views.'" Core, oil-
dated' Edison Co., supra, at 536 (quoting N/emo~ko v. Mary-
/and, 340 U. S. 268, 282 (1951) (Franlffuner, J., concurring
in result)). "['B]efore deferring to [Renton's] judgment, [we]
must be convinced that the city Ls seriously and comprehen-
sively addressing" secondary land use effects associated with
'The Court apparently finds comfort in the fact that the ordinance does
not 'deny use to those wishing to express less favored or more cont. ro-
vet-sial views." Anf~, at 7. Howevir, content-based discrimination is not
rendered many less odious" because it distinguishes "among entire classes
of idea~, rather than among points of view within a particular class."
· Lchr~zn v. City o/ $haker Heights, 418 U. S. 298, 316 (1974) (BI~NNAN,
J., dis.~nting); see slso Consolidated Ediscm Co. v. Public Serr'ice
Comm'n of N. Y., 447 U. S. 530, 537 (1980) (~[t]he First Amendment's
hostility to content-based regulation extends not only to restrictions on
particular viewpoints, but also to prohibition of public ~ion of an
entire topic~). Moreover, the Court's conclusion that the restrictions
imposed here were viewpoint-neutral is patently fl~wed. 'As a practical
n~t~er, the speech suppressed by restrictions such ~s tho~ involved [here]
will almost invm-iably ~ s.n implicit, if not explidt, message in favor of
more relaxed sexual mor~. Such t'~-stri~or~, i.n other words, have a
potent viewpoint-differential impact .... To trea~ such restrictions ~s
vie~point-neutr'al seems simply to ignore reality." S~one, Restrictions
of Speech Because of its Content: The Peo,li,r Ca~e of Subject-Matter
Restrictions, 46 U. Chi. L. Rev. 81, 111-:112 (19'~a).
84--1360--DISSENT
RENTON ~ PLAYTIME THEATRES. INC.
3
adult movie theater~. Metromedia, Inc. v. San DietTo, 453
U.. S. 490, 531 (1981) (B~£~qsai~, J., coning ~ judg-
merit). In t~ ~e, ~th ~e ~ge of ~e o~ce ~d
i~ dubio~ le~ve ~to~ ~He the Co~'s ~ncl~ion
~he dt%s p~t of i~ zo~g ~terests he~ w~ ~lat~
to ~e supp~ssion of ~ e~ssiom" An~, at 6.
A
~e o~~ ~~s on i~ f~e a~t c~
fo~ of s~ b~ on mntent. Mo~e
~g ~ "ad~t moron pi~s" ~y not ~ I~ ~t~ 1,~
f~t of ~y ~sidenti,1 ~ne, s~gl~ or m~pl~f~y dweH-
~g, ch~, p~k, or ~1. ~er motion pict~ th~te~,
~d o~er fo~ of "~t en~~ent," such ~ b~, m~-
~ ~lo~, ~d ad~t ~hto~s, ~' not subject ~ the
~e ~s~ctio~. ~ selective ~atment s~ongly sug-
ges~ ~t R~ton w~ ~st~ not ~ ~n~g the "s~-
ond~ eff~"
~~t~g a~t ~t ~eate~ b~M on ~e con~nt of
the ~ ~ey ~bit.
to~ t~atment, d~g' ~t Renton ~ ~ ~o 'M~ss the
~tenti~l pmble~ ~t~ by one p~c~ ~d of ~ult
b~ess,' 'an~, at 10, ~d ~ ~end the o~ce ~ the
~t~ ~ ~clude o~er M~t enterpr~es. An~, at 11 (cit-
~g Will~ v. ~e ~t~l Co., ~ U. S. ~, ~9
(i9~)).~ Howev~, ~e of the F~: ~en~ent ~ter-
. es~ at s~e he~, t~ on~ste~al-a-~e ~ys~ ~ who~y
~ppropr~te.
"~ Co~ ~quently ~ upheld ~der~cl~ive c~si-
. fi~tio~ on the sold theo~ that a Ie~t~e ~y deal
~e Co~
~e Renan o~ w~ e~t~, ~y other ~: b~e~ w~ l~t~ in..
or w~ ~ntemp~g mo~g ~, Ren~' Ar~, at 10. Howev~, at
~e ~e ~e o~ w~ e~, ~e~ w~ ra e~den~ ~ ~y adult
~e ~a~ we~ 1~ ~, or ~ider~g w.:'~g ~, Renton. ~,
~e~ w~ no le~ti~te ~n for ~e city ~ u~at ~t mo~e theate~
d~e~nt ~m other ad~t bus~e~ses.
84-1B6~)--DISSENT
4 RENTON a PLAYTIME THEATRES. INC.
with one part of a problem without addressing all of it.
'" See e. g., William. son v. Lee Optical Co., 348 U. S. 483,
488-489 (1955). ~ presumption of statutory validity,
however, has less fort'el when a classification turns on the
Subject matter of expression.. 'IA]hove all ehe, the
First Amendment means that government has no power
to restrict expression bemuse of its message, its ideas,
its subject matter, or its content.' Po~ic~ Dept.
c~o v. Mos/ey, 408 U. S., at 95." Errnoznik'~. City of
· Jacksonville, 422 U. S. 205, 215 (1975).
In this case, the city has not justified treating adult movie
theaters differently from other adult entertainment busi-
nesses.. The ordinance's underinclusiveness is cogent evi-
dence that it was aimed at the content of the films shown in
adult movie theaters.
B
Shortly ajar this lawsuit commenced, the Renton City
Council amended the ordinance, adding a provision explnin-
Lng that its intention in adopting the ordinance had been "to
promote the City of Renton's great interest in protecting and
preserving the quality of its neighborhoods, commercial dis-
tricts, and the quality of urban life through effective land use
planning." App. to Juris. Statement 81a. The amended or-
dinance also lists certain conclusory "findings' concerning
adult entertainment land uses that the Council purportedly
relied upon in adopting the ordinance. Id_, at 81a-86a. The
city points to these provisions as evidence that the ordinance
was designed to control the secondary effects associated with
adult movie theaters, rather than to suppress the content of
the films they exhibit. However, the "leg:~lative history" of
the ordinance strongly suggests otherwise.
Prior to the amendment, there was no indication that the
ordinance was designed to address any "secondary effects" a
single adult theater might create. In addition to the suspi-
ciously coincidental timing of the amendment, many of the
City Council's "findings" do not relate to legitimate land use
S4-13C~,--DISSENT
RENTON ~. PLAYTIME THEATRES, INC.
5
concerns. As the Court of Appeals observed, "[b]oth the
magistrate and the district court recognized that many of the
stated reasons for the ordinan~ were no more than expres-
sions of dislike for the subject matter." 748 F. 2d, 527, 537
(CA9 1984).~' That some residents may be offended by the
co~zt~v~t of the films shown at adult movie theaters cannot
form the basis for state regulation of speech. See
¢llo v. Chicago, 337 U. S. 1 (1949).
Some of the '~dings' added by the City Council do relate
to supposed "secondary effects" associated with adult movie
· theaters.' 'However, the Court cannot, as it does, merely
accept these post-iwc statements at face value. '"IT]he pre-
sumption of validity that traditionally attends a local govern-
ment's exercise of ils zoning powers carries little, if any,
weight where the zoning regulation trenches on rights of
expression protected under the First Amendment." Sclmd
v. Mount Ephraim, 452 U. S. 61, 77 (1981) (BLA~, J.,
concurring). As the Court of Appeals concluded, "[t]he
record presented by Renton to support its asseF~ed interest
'For example, ~'mding~ number 2 sta~es that
"[l]oc~t/on of adult entertainment land uses on the main commercial thor-
oughfares oft. he City gives ~ impression of leg~.zcy to, ~d c~use$ a loss
of ~ensitivity to the adveme effect of pornography upon children, estzb-
lished family relations, respe~ for marital retsrJanskip and for the sanctity
of m~rriage relations of other~, and the concep~ of non-~res~ive, censen-
sual sexual rel~tior~." App. to Juriz. Statemen: "Finding" number 6 ~tate~ that
~l]oc~tion of adult ~ tme~ in clo~e proxi-r..i~y to resident~l uses.
churches, parks, ~,nd other public facilities, ~u~d .~c. hoolz, will c~u~e a deg-
radation of the community standard of moraiiW. Pornographic material
has a degt-ading effect upon the relationship be:~'een spouses." 'For example, "finding" number 12 states
"['l]ocation of adult entertainment L~nd tme~ in, pcox/mJty to resident, iai
uses, churc, he~, parkz and other public facilities, ~nd -~chool~, rrmy lead to
increased levelz of criminal activities, including prcetitution, r~pe. incest
·nd assaults in the vicinity of such adult enter-.z:r, ment land uses." Id.,
at 83a.
84-1360--DISSENT
RENTON tt PLAYTIME THEATRES, INC.
i~ enacting the zoning ordinance h very thin." 748 F. 2d,
_ at 536.
The amended ordinance states that its "findings" summa-
rize testimony received by the City Council at certa/n public
hearings,- ~ While none of this testimony was ever recorded
or preserved, a city ofl/cial reported that residents had
objected to having,adult movie theaters li~:ated in their com-
munity. However, the of~cial was' unable to recount any
testimony as to how adult movie theaters w~uld specifically
affect the schools, churches, parks, or residences "protected"
by the ordinance. See App. 190-192. The City Council con-
ducted no studies, and heard no expert testimony, on how the
protected uses would be affected by the presence of an adult
movie theater, and never considered whether residents' con-
cerns could be met by "restrictions that are less intrusive on
protected forms of expression." Schad, su~, at 74. As a
result, any "findings" regarding "secondary effects" caused
by adult movie theaters, or the need to adopt, specific loca-
tional requirements to combat such effects, were not ~nnd-
ings' at all, but purely speculative conclusions. Such "find-
ings" were not such as are required to justify the burdens
the ordinance imposed upon .constitutionally protected
expression.'
The Court holds that Renton was entitled to rely on the ex-
periences of cities like Detroit and Seattle, which had enacted
special zoning reg~,l.tions for adult entertainment businesses
after studying the adverse effects caused by such establish-
ments. However, even assuming that Renton was con-
cerned with the same problems as Seattle and Detmoit, it
never act~!ly reviewed any of the studies conducted by
'those cities. Renton had no basis for .determining if any of
the 'Tradings' made by these cities were relevant to R~n~o~'s.
problems or needs.' Moreover, _,~nce Renton ultimately
° As part of the amendment passed after this lawsuit commenced, the
City Council added a statement that it had intended to rely on the Wash-
ington Supreme Court's opinion in Nort2~ Cir~-'rrua, In~:. v. Seattle, ~
84-1360--DISSENT
RENTON v. PLAYTIME THEATRES, INC.
adogt~d zoning regulations different from either Detroit or
Seattle, these-?~t:udies" provide no basis for assessing the
effectiveness of the partic,,l-~' restrictions adopted under the
ordinance.' · Renton earmot merely rely on the general
experienc, es of Seattle or' Detroit, for it must ~just/fy its
ordinance in the context of Rento~'s problems--not Seattle's
or 'Detroit's problems." 748 F. 2d, at 536 (emphasis in
In sum, the ciro~m-~tances here strongly suggest that the
ordinance was designed to suppress expression, even that
constitutionally protected, and thus was not to be analyzed as
a content-neutral time, place, and manner restriction. The
Court allows Renton to conceal its illicit motives, however,
by reliance on the fact that other communities adopted simi-
lar restrictions. The Court's approach largely immunizes
such measures from judicial scrutiny, since a municipality can
readily find other municips, l ordinances to rely upon, thus al-
W~sh. 2d 709, 585 P. 2d 1153 (1978), cert. denied, rub nom. App/e Theatre,
l~c. v. Seutt/e, 441 U. S. 946 (1979), which upheld Seatcle's zoning regula-
tions ag~i~t constitutiomtl attack. A~-~in, despite the SUSl~icious coinci-
dental timing of the amendment, the Cour~ holds t/~: "Renton w~ entitled
to rely.., on the 'detailed findings' sUmmarhed in the ... Northend
Ci~-,na opinion." Ante, at 9. In Northe'nd C£r,~e~, the court noted tlut
"It]he record is replete w~th testimony regarding the effecu of adult movie
theater loc~tions on residential neighborhoods." ~ Wash. 2d, at 719, 5~5
P. 2d, at 1159. The opir~on however, does not e.vplain the evidence it put-
por~ to summ~ize, and provided no bash for dete~,~-~qg whether Seat-
tle's experience ia relevant to Renton's. 'Az the Court ofAppea~ ob-~erved:
"AJthough the Renton ordinance purpor~ to c~p¥ Detroit's and Seat.
tle'~, it does not solve the aa~e problem in the sa:ne ~.s.~'~er. The Detroit
ordin,'~nce waz intended to disperse ~lult theater~ throughout the city so
that no one district would deteriorate due to a concentration of such
thea~er~. The Seattle ordinzz',ce, by contr~t, wa~ L~tended to co~crntrate
the theater~in one place so that the whole ck¥ wou~d not bear the e. Hecrs of
them. The Renton Ordinance is allegedly ~zLrned at protectL~g certz~
uzes~chooL% parks, churches and resiSenti~ z. re~s---fi'orn the perceived
unfavorable effects of an adult theater." 748 F. ~, ~t 536 (emphasis in
original).
&~-I~.-DISSENT
8 RENTON ~. PLAYTIME THEATRES, INC.
~ways retrospectively justifying special zoning regulations for
.-adult theaters,' Rather than speculate about Renton's mo-
tives for-i~do~_mg, such measures, our cases require that the
ordinance, like any other content-based restriction on speech,
is constitutiorufl "only if the [city] can show that [it] is a pre-
cisely 'drawn means of serving a' compelling [governmental]
interest." Consolida~d Edison Co. v. Public Service
Corrtm'n ofN. Y., 447 U. S., at 540; see also Carry v. Bro'w~,
447 U. S. 455, 461--462 (1980); Police l)epartme~t of Chicago
v. Mo~, 408 U. S. 92, 99 (1972). Only this strict approach
can insure that cities will not use their zoning powers
as a pretext for suppressing constitutionally protected
expression.
Applying this standard to the facts of this case, the ordi-
nance is patently unconstitutional. Renton has not shown
that locating adult movie theatem in proxEmity to its
churches, schooh, parks, and residences will necessarily
result in undesirable 'secondary effec:s,' or that these
problems could not be effectively addressed by less intrusive
restrkfi~ns.
Even assuming that the ordinance shodd be treated like a
content-neutral time, place, and'manner restriction, I would
still find it unconstitutional. ' "[R]estrictions of th/s kind are
valid provided.., that they are narrowly tailored to serve a
significant governmental interest, and tkmt they leave open
ample alternative channels for commurdcz,.ion of the informa-
tion." Cl~rk v. Cornrnu~ity fo-r Creative ~ro~-Violence, 46S
~ As one commentator ha~ noted:
~[A]nyone with ~ny knowledge of human nature should natur~y a.~ume
that the decision to adopt ~Lmo~t ~ny content-based restr/ct/on might have
been affected by ~m ~nfipathy on the part of at le~s: some legislator~ to the
ideas or information being suppre~cl. The log~.cal ~sumption, in other
words, is Rot tl~ there is not improper mofiv~an but, r~her, because
leg/sla~or~ are only hum~ that there h · ~uS~m-.~ial r/~k that an/raper-
missibie consideration ha~ /n f~ct colored the detiberative pro~.'
Stone, ~'uFru n. 1, ~[ 106.
RENTON ~. PLAYTIME THEATRES, INC.
U. S. 288, 293 (1984); Heffro'n v. Iniernafior~al Socieflj for
Krishr~a Co~scio'~r~ess, Ir~c., 452 U. S. 640, 648 (1981). In
applying this standard, the Court ~ to subject the alleged
interests of the [city] to the degree of scrutiny required to en-
sure that expressive activity, protected by the .First Amend-
ment rern~ius free of unnecessary limitations."
for Creative Non-Violence, 468 U. S., at 301 (MXaSl~X., J.,
dissenting). The Court "evidently [and wrongly] assumes
that the bnl~ce struck by [Renton] offi~l.~ is deserving of
deference so long as it does not appear to be tainted 'by
content discrimination." Ici., at 315. Under a proper ap-
plication of the relevant standards, the ordL, mnce is clearly
unconstitutional.
A
The Court finds that the ordi~nce was designed to further
Renton's substantial interest in "preserv[~ng] the q~nllty of
urban life." Ante, at 8. As e.x-plained above, the record
here is simply insuflic/ent to support this ~sert. ion. The city
made no showing as to how uses "protected" by the ordinance
would be affected by the presence of an adult movie theater.
Thus, the Renton ordinance is clearly d/s:inguishable from
the Detroit. zoning ordinance upheld in Y~ur~g v. American
Mini. Theatres, Inc., 4,.°7 U.S. 50 (1776). The Detroit
ordinance, which was designed to dispe~e adult theaters
throughout the city, was supported by the testimony of ur-
ban planners and real estate experts reg-~_rd/ng the adverse
effects of locating several such businesses in the same neigh-
borhood. Id., at 55; see also Nor/hem/Cinema/nc. v. Seat-
tle, °.90 Wash. 2d 709, 711,585 P. 2d !153, 1154-1155 (1978),
cert. denied, Sub nom. Apple Theatre, lr~c. v. Seattle, 441
U. S. 946 (1979) (Seattle zoning ord/nance was the "culmina-
tion of a long period of study and discussion'). Here, the
Renton Cotmdl was zware only that some residents had
plained about adult movie theaters, and ~hat other
had adopted special zon/ng restr/cQons ~or such establish-
ments. These are not "/'acts" sufficien: ~o justify the bur-
84-1360--DISSENT
10 RENTON a PLAYTIME THEATRES. INC.'
'dens the offence imposed upon constitutionally protected
e.x'pression.
B
· . Finally, the ordinance is invalid because it does not provide
for reasonable alternative avenues of communication. The
District Court found that the ordinance left 520 acres in Ren-
ton available for adult theater sites, an area comprising about
five percent of the city. However, the Court of Appeals
found that because much of this land was already occupied,
"II]fruiting adult theater uses to these are~ is a substantial
restriction on speech.~ 748 F. 2d, at 534. Many "aw~lnble"
sites are also largely unsuited for use by movie theaters.
See App. 231, 241. Again, these facts serve to distinguish
this case from Aw~n'fc~n ~r~n~ Th~z~res, where there was no
indication that the Detroit zoning ordinance seriously limited
the locations avat~ble for adult businesses. See Ar~r~zn
.~r~n~ 1r'~czt~rra, s~pru, at 71 n. 35 (plura~:¥ opinion) ("The
situation would be quite r]~erent if the ordinance had the ef-
fect of... greatly restricting access to, l~wful speech"); see
also B~r~zr~es v. C~/o~' Gc~veat~rn, 682 F. 2d.1203, 1214
(CA5 1982) (ordinance effectively banned adult theaters by
restricting them to ''the most un~ttractiYe, Lr~ccessible, and
inconvenient areas of a city)"; Purple On~rn, ~rnc. v. ~rczc/c-
acm, 511 F. Supp. 1207, 1217 (ND Ga. 1951) (proposed sites
for adult entertainment uses were either ~av~able, unus-
able; or so inaccess~le to the public ttmt.., t. hey ~rnoun: to
no locations").
Despite the evidence in the record, the Court reasons that
the fact "thnt respondents must fend for themselves in the
real estate m~ket, on an equal footing ~'ith other prospec-
tive purchasers and lessees, does not give rise to a First
Amendment violaLion.' Rna, at 12. Ho~'ever, respond-
ents are not on equal footing with other p~sl~ective purch~-
ers and lessees, but must c~nduct bu~-~e~s under severe
restrictions not imposed upon other es:~bLL~hrnents. The
Court also argues that the First Amendrr,,en: does not compel
84_I360.--DISSENT
REN'rON ~. PLAYTIME 'tHEATRES, INC.'
Il
"the government to ensure that adult theatres, or any other
kinds of speech-related businesses for that matter, will be
able to obtain sites at bargain prices." Ibid. However;-r~" '
spondents do not ask Renton to guarantee low-price sites for
their businesses, but seek only a reasonable opportunity to
~perai~e ~dult theaters in the city. By denying them this
opportunity, Renton can effectively ban a form of protected
speech from its borders. The ordimmce "greatly restrict[s]
access to, lawful speech," Arnericar~ Mir~i Theatres, supra, at
71, n. 35 (plurality opinion), and is p!_~inly unconstitutional.
'- ~k, to~. D. C. 20~43. of ~n,/tylx~rapl~eal or other formal erru~so in or~
or rr%
...: ..7 :' '_-~' .Y-..' ...... '
CITY OF RENTON, ET AL., APPELLANTS
PLAYTIME THEATRES, INC., ET AL.
ON APPEAL FROM THE UNITED STATES COURT OF A1
FOR THE NINTH CIRCIYlT
JUSTICE RZ~-:NquLTr delivered the opLrSon of the C
This case involves a constitutional challenge t~ a zo~
dinance, er. ac:ed by appellant, the city of Renton, W
ton, that prohibits adult motion pict-are theaters riot
lng within 1,000 feet of any residential :one, sir.
multiple-fart:Ay dweLl~g, church, park, or school.
lees, Playtime Theatres, Inc., and Sea-First PropertiE
filed an ac~on in the United States District Court
Western Dis'.rict of Washington seeking a declaratox
ment that the Renton ordinance violated the First an
teenth Amendments and a permanent injunction ag~
enforcemen,'., The District Court ruled in favor of
and denied '.he permanent injunction, but the Coau
peals for the Ninth Circuit reversed and remanded
consideration. 748 F. 2d 527 (1984). We noted t
jurisdiction, -~7! U.S. (1985), and now reverse tl
ment of the Ninth Circuit.'
'This apl>e=' ~-~s taken under 28 U. S. C. § 1254(2). which pre
Court with a~.;~.~ste jurisdiction at the behest of a pa.,'ty reiying
su~tute or loca '..rdinance held unconstitutional by a ceun of ap[
we h~ve pre~:xsly noted. ~hore is zome question whether j~
under § 1254~2, k- av~lable to review a nonfin~l judgment. ,Cee ~
olina Electr~: ~ Gas Co. v. Flernrninq, 351 U. S. 991 (1996);
O'Connor. ~ L'. S. 188 (1929). But see Chicaqo v. Atchison,
R. Co., 357 U. ---. 77.82-83 (1958).
-m
84-1360~OPINION
2
RENTON v. PLAYTIME THEATRES, INC.
In May 1980, the Mayor of Renton, a city of approximately
82,000 people located just south of Seattle, suggested to the
Renton City Council that it consider the advisability of enact-
lng zoning legislation dealing with adult entertainment uses.
No such uses existed in the city at that time. Upon the May-
or's suggestion, the City Council referred the matter to the
city's Planning and Development Committee. The commit-
tee held public hearings, reviewed the experiences of Seattle
and other cities, and received'a report from the City Attor-
ney's Office advising 2s to developments in other cities. The
City Council, meanwhile,.~-adopted Resolution No. 2368,
which imPosed a moratorium on the licensing of "any busi-
ness.., which.., has as its primary purpose the' selling,
renting or showing of sexually explicit materials." App. 43.
The res°lution contained a clause explaining that such busi-
nesses "would have a severe impact upon surrounding busi-
nesses and residences." Id., at 42.
In April 1981, acting on the basis of the Planning and
Development Committee's recommendation, the City Council
enacted Ordinance NO. 3526. 'The ordinance p/-ohibited any
'~lult motion picture theater~, from'locating within 1,000 feet
of any residential zone, single-.or multiple-family'dwelling,
church, or park, and within one mile of any school. App, to
Juris. Statement 79a. The term '"adult motion picture the-
ater" was defined as "[a]n enclosed building used for present-
Lng motion picture films, video c2ssettes, c~ble television, or
any other such visual media, distinguished or characteri[zed]
by an emphasis on matter depicting, describing or relating to
The present appeal seeks review of a judgment remanding the case to
the District Court. We need not resolve whet. her r. his appeal is proper
under § 1254(2). however, because in any event we )'ave certiorari jurisdic-
t. ion under 28 U. S. C. § 2103. As we have pre~iou_~!y done in equivalent
sittmtiorm, see E! Paso v. Sfmraon~. 379 U. S. 497. 502-503 (1965); Doran
v. ,Sa/era Inn. Inc., 422 U. S. 922, 927 (1975), we d'.'~miss the appeal ~.nd,
tre,,ti~g the p~pers ~s a petition for certiorari, gr~nt '.he writ of certiorari.
Henceforth. we sh~ll r~fer to .the parties ~s "petitioners" and
~respondenta.~
cc d C
84-1~0--OPINION
RENTON a PLAYTIME THEATRES, INC. 3
~'specified sexual activities' or 'specified anatomical areas'...
for observation by. patrons therein." Id., at 78a.
In early 1982, respondents acquired two existing theaters
in downtown Renton, with.the intention of using them to es-
hibit feature-length adult films. The theaters were located
· within th.e..area proscribed by Ordinance No. 3526. At about
the same time, respondents filed the previously mentioned
lawsuit challenging the ordinance on First and Fourteenth
Amenarnent grounds, and se~_tdng.deelaratory and injunctive
relief. While the federal.action was pending, the City Coun-
cil amended the ordinance in several respects, adding a state-
ment of reasons for its enactment and reducing the minimum
distance from any school to 1,000 feet.
In November 1982, the Federal Magistrate to whom re-
spendents' action had been referred recommended the entry
of a preliminary injunction against enforcement of the Ren~on
ordinance and the denial of Renton's motions to dismiss and
for sununaW judgment. The District Court adopted the
Magistmte's recommendations and entered the preliminary
injunction, and respondents began sho~'kng adult films at
their two theaters in Renton. Shortly thereafter, the par-
ties agreed to submit the case for a final decision on whether
a permanent injunction should issue on the basis of the record
as.already developed.
The ·District Court then vacated the pre~ injunc-
tion, denied respondents' requested perr~-.~uent injunction,
and entered sum,nary judgment in favor of Rentoru The
court found that the Renton ordirmnce did not substantially
restrict First Amendment interests, that Rent. on was not re-
quired to show specific adverse impact on Renton from the
operation of adult theaters but could rely on the experiences
of other cities, that the purposes of the or~2nznce were unre-
lated to the suppression of speech, and tk~t the restrictions
on speech imposed by the ordinance were no greater than
necessary to further the governmental interests involved.
Relying on Young v. Aracr4can M{n{ ThCaires, Inc., 427
84-1360---OPINION
RENTON v. PLAYTIME THEATRES, INC. '
U. S. 50 (1976), and United St~te~ v. O'Bri~, 391 U. S. 367
(1968), the court held that the Renton ordinance did not vio-
late the First Amendment.
The Court of Appeals for the Ninth Circuit reversed. The
Court of AppeaLs first concluded, contrary to the finding of
the District' Court, that the Renton ordinance constituted a
substantial-restriction on First Amendment interests.
Then, using the standards set forth in Ur~ited Statea v.
0'Bt/eh, supra, the Court of Appeals held that'Renton h~d
-improperly relied on the experiences of other c~ties in lieu of
evidence about the effects of adult theaters on Renton, that
Renton had thus f_~{]ed to es~blish adequately the existence
of a substantial governmental interest in support of its ordi-
nance, and that in any event Renton's asserted interests had
not been shown to be unrelated to the suppression of expres-
sion. 'The Court of Appeals remanded the case ~ the
District Court for reconsideration of Renton's asserted
interests.
In our view, the resolution of this ~e is largely dictated
by our decision in Young v. ,4mm'~:n M{n{ T/~atres,
~Fr=. There, although five Members of the Court did not
agree on a single rationale for the decision, we held that the
city of Detroit's zoning ordirmnc~, which prohibited locating
an adult theater within 1,000 feet of any two other "regulated
uses" or within 500 feet of any residential zone, did not ~o-
late the First and Fourteenth Amendments. 427 U. S., at
72'73 (p]ur~ty opinion of STEVENS, J., joined by
C. J., and '~VHITE and REHNQUIST, JJ.); ~., at 84 (POWELL,
J., concurring). The Renton ordinance, like the one in
~4mc~r{c:~ ~{n{ ~atres, does not ban adult theaters alto-
gether, })ut merely provides that such theaters may not be
located within 1,000 feet of any residential zone, single- or
multiple-family dwelling, church, park, or school The ordi-
nance is therefore properly armlyzed ~s a form of time, place,
and manner regulation. Id., at 63, and n. I8; {d., at 78-79
(PowELL, J., concurring).
~4-1360--OPINION
RENTON v. PLAYTIME THEATRES. INC.
. Describing the ordinance as a time, place, and manner
regulation is, of course,' onl}; th~ fa'st step in our inquiry.
This Court has long held that regulations enacted for the pur-
pose of restraining .speech on the basis of its content pre-
sump~ivel~ violate the First Amendment. See Carey v.
Braum, 447 U. S. 455, 462-463, and n. 7 (1980); Police Dept.
of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972). On the
other hand, so-called. "content-neutrar' time, place, and
~auner regulations are acceptable So long as they are de-
Signed to serve a substantial governmental interest and 'do
not unreasonably limit alternative avenues of communication.
See Clark v. Community for Creative No~-Violence, 468
U. $. , .. (1984); City Council v. Taz'payers for Vin.
cervt, 466 U. S. '/89, 80'/ (1984); Heffron v. Intertmtio.r~l
Society for Krishna Consciousness, Inc., 452 U. S. 640, 647,
648 (1981).
At first glance, the Renton ordinance, like the ordinance in
American Mini Theatres, does not appear to fit neatly into
either the "content-based" or the "content-neutral" category.
To be sure, the ord/nance treats theaters that spedai/ze in
adult films differently from other kinds of theaters. Never-
theless, as the District Court concluded, the Renton ordi-
nance is aimed not at the content of the films shown at "adult
motion picture theatres," but rather at the secondary effects
of such theaters on the surrounding commun/ty. The Dis-
~rict Court found that the City Council's "predominate con-
cerns,, were with the secondary effects of adult theaters, and
not with the content of adult films thews.elves. App. to
Juris. Statement 31a (emphasis added). But the Court. of
Appeals, relying on its decision in Tovar v. Billmeyer, 721 F.
2d 1260, 1266 (CA9 1983), held that this was not enough to
sustain the ordinance. According to the Cour~ of Appeals, if
"a motivating factor"in enacVing the ordinance was to re-
strict respondents' exercise of F/rst Amendment rights the
ordinance would be invalid, apparently no matter how small a
par~ this motivating factor may have played in the City Coun-
84-1~0--OPINION
RENTON ~. PLAYTIME THEATRES. INC.
eil's decision. 748 F. 2d,' at 537 (emphasis in original). This
view of the law was rejected in United States v. O'Br'/en, 391
U. S. 367, 382-386 (1968), the very case that the Court of
peals said it was applying:. ' .
.--. ...... "It is a familiar principle of constitutional law that
~ Court will not strike down an otherwise constitu-
tional statute on the basis of an .alleged illicit legislative
motive ....
~... V~hat motivates One legislator to make a speech
about a statute is not necessarily what motivates scores
of others to enact' it, and the stakes are sufficiently h~gh
for us to eschew guesswork." Id., at 383-384.
The DistriCt Court's finding as to "predominate" intent.
left undisturbed by the Court of Appeals, is more than ade-
quate to establish that the city's pursuit of its zoning
interests here was unrelated to the suppression of free ex-
pression. -.The ordinance by its terms is designed to prevent
-~crime, 'p~otect the city's retail trade, maintain property val-
ues, and gener~y ~protec[t] and preserv[e] the.qual/ty of
[the city's] neighborhoods, commer,-i~l districts, and the
· q,,~lity of urban life," not to suppress the expression of un-
popular views. See App. to Juris. Statement 90a. As Jus-
TICE P0Wr. LL observed in American Mini Theatres, "[Jif [the
city] had been concerned with restricting the message put-
veyed by adult theaters, it would have tried to close them or
restrict their number rather than circumscribe their choice as
to location." ' 427 U. S., at 82,.n. 4.
In short, the Renton ordinance is completely consistent
with our definition of "content-neutral" .speech regulations as
those that "are justified without reference to the content of
the regulated speech." Virginia Pharmacy Board v. Vir.
94nia Citizens Consumer Council, Inc., 425 U. S. 748, 771
(1976) (emphasis added); Community for Creative Non.Vio-
lence, supra, at ; International Society for Krishna Con-
sciousness, supra, at 648. The ordinance does not contra-
84-1~O--OPINION
RENTON ~ PLAYTIME THEATRES. INC.
vene the fundamental principle that underlies our concern
about "content-b~sed" speech regulations: that "government
rr~y not*grant the -use of a forum to people whose views it
finds acceptable, but deny use to those wishing to express
less favored or more controversial views." Mosl~y, s~p~z,
at 95-96. ..
It was with this understanding in mind that, in Americar~
Mird Theatres, a major/ty of this COurt decided that, at least
with respect to businesses that purvey sem~lly explicit ma-
refills,' zoning ordinances designed to combat the unde-
sirable secondary effects of such businesses are to be re-
viewed under the standards applicable to ~content-neutral"
time, place, and manner regulations. JL'~I'IcE STEVENS,
writing for the plurality, concluded that the city of Detroit
was entitled to draw a distinction between adult theaters
and other kinds of theaters "without viol~?./ng the govern-
ment's paramount obligation of neutrality in its regulation of
protected communication," 427 U. S., at 70, noting that "lilt
is th[e] secondary effect which these zoning .ordinances at-
tempt to avoid, not the dissemirmtion of 'offensive' speech,"
fi/., at 71, n. 34. JUSTICE POWELL, "..n coficurrence,
elaborated:
"[The] dissent misconceives the issue in this case by
insisting that it involves an imperrr~:.ble time, place,
and manner restriction based on the c~ntent of expres-
sion. It involves nothing of the kind. We have here
merely a decision by the city to treat c~.rtain movie the-
aters rl/fferently because they have rr..zrkedly different
effects upon their surroundings .... :,,.'oreover, even if
this were a case involving a specie ~overnmental re-
' sponse to the content of one type of m.?,-ie, it is possible
that the result would be supported by a L/ne of cases rec-
'See.Amzr/r.a~.Min/~ea/~$, 42/U. S.~ ~t ~'0 (7. L~'-~ity opinion) ('Tilt
is manifest that society's interest in protecting this '.~.Te of express/on is of
a wholly d/fferent, and lesser, magnitude than the L~.:~..'est in untrammeled
po[it/c~l debate...~).
8
84-13~K~--OPINION
RENTON ~. PLAYTIME THEATRES. INC.
ogo{~ng that the government can t;dlor its reaction to
different'type~"of, s_~.,ech according to the degree to
which its special and overriding interests are implicated.
..... See, e. ~, Tire. er v. Des Mcrinea School Dist.. 393 U. S.
503, 509-§11' (1969); Proc~nier v. Mw'tinez, 416 U. S.
396, 413-414 (1974); Greet v. Spoc/c, 424 U.S. 828,
842-844 (19/6) (POWELL, J., concurring); cf. CSC v.
Lefl~ C~zrriers, 413 U.S. 548 (1973)." Id., at 82,
Th~ apPr0'{~ri~te i~{tirY' in this case, then, is whether the
Renton ordinance is designed to serve a substant~nl govern-
mental interest and allows for reasonable alternative avenues
of communication. See Community for Creative Non-
Violence, 468 U.S., at ; International Society for
Kriahna Cona~sa, 452 U. S., at 649, 654. It is Sear
that the ordinance meets such a standard. As a majority of
this Court recognized in American Mini Theo. tres, a dty's
"interest in attempting to preserve the q~}ity of urban life is
one that must be accorded high respect." 427 U. S., at 71
(plurality opinion); see /d., at 80 (Pow~.~., J.., concur-
ring) ("Nor is there doubt that the interests furthered
by this ordinance are both important and substantial"). Ex-
actly the same vital governmental interests are at stake
here.
The Court of Appeals ruled, however, that because the
Renton ordinance was enacted w/thout the benefit of stud/es
specifically relating to "the particular problems or needs of
Renton,' the city's justifications for the ord/nance were "con-
clusory and speculative." 748 F. 2d, at 537. We think the
Court of Appeals imposed on the city an urmecessar~y rigrid
burden of proof. The record in this case reveals that Renton
relied heavily on the experience of, and studies produced by,
the city of Seattle. In Seattle, as in Renton, the adult the-
ater zoning ordinance was aimed at preven:ing the secondary
effects caused by the presence of even one such theater in a
given neighborhood. See Northend Cinema, Inc. v. Seattle,
84-1360--0PINION
RENTON v. PLAYTIME THEATRES. INC. 9
9~ Wash. 2d 709, 585 P. 2d 11~3 (1978). The opinion of the
Supreme Cohr~ o~Washington in'Nor~hend Cinerntt, which
w-~ before' the Renton City Couhcil when it enacted the ordi-
trance in question here, described Seattle's experience as
follows: :. .... · '-'
~The amendments to the City's zoning code which are
at issue, hem are the culmination of a long period of
study and d/scussion of the problems of adult movie the-
aters in resident/al areas of the City .... [T]he City's
Department of Community Development made a study
of the need for zoning controls of adult theaters ....
The study analyzed the City's zoning scheme, compre-
hensive plan, and land uses around existing adult
tion picture theaters .... " Id., at ?Ii, 585 P. 2d,
at 1155.
"[T]he [trial] court heard extensive testimony regard:
ing the history and purpose of these ordinances. It
heard expert testimony on the adverse effects of the
presence of adult motion picture theaters on neighbor-
hood children and community improvement efforts.
The court's detailed findings, Wkich include a finding
that the location of adult theaters has a harmf-ul effect on
the area and contribute to neighborhood blight, are sup-
ported by substantial evidence in the record." Icl., at
713, 585 ?. 2d, at 1158.
"The record is replete with testimony regarding the
effects of adult movie theater locations on residential
neighborhoods." Id., at 719, 585 P. 2d, at 1159.
We hold that Renton was entitled to rely on the experi-
ences of Seattle and other cities, and in particular on the "de-
tailed findings~ smnmarized in the Washington Supreme
Court's North~nd Cinema opinion, in enacting its adult the-
ater zoning ordinance. The First Amendment does not re-
quire a city, before enacting such an ordi~.ance, to conduct
new studies or produce evidence independent of that already
generated by other cities, so long az whatever evidence the
84-1360---OPINION
10
RENTON v. PLAYTIME THEATRES. INC.
c/ty relies upon is reasonably believed to be relevant to the
problem that the c/ty addxess-_~. That was the case here.
Nor is our holding affected by the fact that- Sea~tl.e ultimately
chose a ~lifferent method of adult theater zoning than that
chosen by Renton. since Seattle's choice of a rllfferent rem-
edy to combat the secondary effects of adult theaters does
not call into question either Seattle's identification of those
secondary effects or the relevance of Seattle's experience to
Renton.
We also find no constitutional defect in the method chosen
by Renton to further its substantial interests. Cities' may
regulate adult theaters by dispersing them, as in Detroit, or
by effectively concentrating them, as in Renton. "It is not
our function to appraise the wisdom of [the city's] decision to
require adult theaters to be separated rather than concen-
trated in the same areas .... iT]he ci.'ty must be allowed a
reasonable opportunity to experiment with solutions to ad-
mittedly serious problems." American Mini Theatres,
supra, at 71 (plurality opinion). Moreover, the Renton ordi-
nance is ~,~'owly tailored" to affect only that category of
theaters shown to produce the unwanted secondar~ effects,
thus avoiding the flaw that proved fatal to the regula-
tions in Schad v. Mount Ephraim; 452 U. S. 61 (1981)o and
Er'znoznik v. City of Jacksonville, 422 U.S.. 205
(1975).
Respondents contend that the Renton ordinance is "under-
inclusive," in that it fzils to regulate other kinds of adult busi-
nesses that are likely to produce secondary effects similar to
those produced by adult theaters. On this record the con-
tention must f~fil_ There is no evidence that, at the time the
Renton ordinance was enacted, any otl~,er adult business was
located in, or was contemplating mo~'Lng into, Renton.. In
fact, Resolution No. 2368, enacted in October 1980, states
that ~the City of Renton does not, at the pr~ent time, have
any business whose primary purpose ~ the sale, rental, or
showing of sexually explicit materials." App. 42. That
~4-1~--OPINION
RENTON v. PLAYTIME THEATRES, INC.
11
· Renton chose first to address the potential problems created
by one particular kind of ad'~-t business in no way suggests
that the city has "singled out" adult theate-,~, for discrimina-
tory treatment. We simply have no basis on this record for
assuming that Renton will not, in the future, amend its ordi-
nance to include other kinds of adult businesses that have
been shown to produce the same kinds of secondary effects as
U. S. 483, 488-489 (1955).
Finally, turning to the question whether the Renton ordi-
nance allows for reasonable alternative avenues of communi-
cation, we note that the ordinance leaves some 520 acres, or'L
more than five percent of the entire land area of Renton,
open to use as adult theater sites. The District Court found,
and the Court of Appeals did not dispute the finding, that the
520 acres of land consists of ~[a]mple, accessible real estate,"
including 'acreage in all stages of development from raw land
to developed, industrial, warehouse, office,, and shopping
space that is criss-crossed by freeways, highways, and
roads." App. to Juris. Statement 28a.
l~espondents argue, however, that some of the land in
question is already occupied by existing businesses, that
'~practically none" of the undeveloped land is currently for
sale or lease, and that in general there are no "commercially
viable" adult theater sites within the 520 acres left open by
the 1qenton ordinance. Brief for Appellees at 34-37. The
Court of Appeals accepted these arguments,~ concluded that
the 520 acres was not truly "available" land, and therefore
' The Court of AppeaLs' rejection of the District Court's findings on this
issue m~y hive stemmed in psrt from the belief, expressed elsewhere in
the Court of Appesls' opinion, that, under Bo~e Co?. v. Con~m~ Union
o~' Un{t~d Stat~, Inc., 466 U. S. 485 (1984), appella:e cour~ have a duty to
review de novo all mixed findings of law ~nd lact reJe ~'an~ to ~ appli~tion
of First Amendment principles. See 748 F. 2d 5..~. 5.3.5 {CA-q 1984). We
need not review the correctness of the Court of Al:~als' interpretation of
Bo~e Co~p., since we determine thst, under any suxadard of review, the
District Court's findings should not hive been dis:'~rbed.
84-1360--OPINION
12 RENTON v. PLAYTIME THEATRES, INC.
held that the Renton ordirmnce "would result in a substantial
restriction" on speech. 748 F. 2d, at 534.
We disagree with both the reasoning and the conclusion 'of
the Com-t of Appeals. That respondents must fend for
themselves in the real estate market, on an equal footing
with other prospective purckasers and lessees, does not give
rise to a First Amendment violation. And although we have
cautioned against the enactment of zoning regulations that
have "the effect of suppressing, or greatly restricting access
to, lawful speech," American Mini Theatres, 427 U. S., at
71, n. 35 (plurality opinion), we have never suggested that
the First Amendment compels the Government to ensure
that adult theaters, or any other kinds of speech-related busi-
nesses for that matter, will be able to obtain sites at bargain
prices. See/d., at 78 (POWrLL, J., concurring) ("The in-
quiry for First Amendment purposes is not concerned with
economic impact"). In our view, the First Amendment re-
quires only that Renton refrain from effectively denying re-
spondents a reasonable opportunity to o~n and operate an
adult theater within the city, and the ordinance before us eas-
ily meets this requirement. '
In sum, we find that the Renton ordinance represents a
valid governmental response to the "admit.~edly serious prob-
lems'' created by adult theaters. See ~/., at 71 (plurality
opinion). · Renton has not used "the power to zone as a pre-
text for suppressing eXPression,"/d., at 84 (PoWELL, J., con-
curring), but rather has sought to make some areas available
for adult theaters and their patrons, whi]e at the same time
preserving the quality of life in the corru.munity at large by
preventing those theaters f~om locating in other areas.
· This, after all, is the essence of zoning. Here, as in Amer/-
can Mini Theatres, the city has enacted a zoning ordinance
that meets these goals while also satisfying the dictates of the
84-1~0~OPINION
' RENTON v. PLAYTIME THEATRES. INC.
13
· First Amendment.4 The judgment of the Court of Appeals
is therefore ..
JUSTICE BLA~ concurs in the result.
' Respondents argue, as an "alternative I~sis" for aff~x~g the decision
of the Court of Appeals, that the Renton ordin~ce vioLltes their rights
under the Equ~l Protection CLause of the Fourteent~ Amenciment. As
should be apparent from our preceding discxc~ion, respondehts can fare no
better under the Equal Protection Clause th~n under the Fi~t Amend-
ment itself. See Young v. American Mini Theatres. 427 U. S., at 62-73.
Respondents also argue that the Renton ordirmnce is unconstitutionally
vague. More partic~,l~,-ly, respondents clullenge the ordinance's applica-
tion to bullding~ %t~ed" for present/ng sex-_,~l]y ~plicit films, where the
term 'used" describes 'a continuing course of conduct of exhibiting [sexu-
ally explicit ~m~] in a ~nerwhieh appeMs to a prm-iemt interest.~ App.
to Jur~. Statement 96a We reject respondents' ~vagueness~ argument
for the same reasons that led us to reject a siro;]~r challenge in American
Mini Theat'r~, sup'~. There, the Detroit ordina.~ce applied to theaters
~ to present material distinguished or charac~.~.z, ed by an emphasis on
[s~x~,~ly explicit nmtter].~ 427 U. S., at 53. We held that ~even if there
nuy be some uncertainty about the effect of the ~.~[h~mnces on other lki-
gm, ts, they are unquestionably applic2ble to these respondents.~' Id., at
58-59. We also held that the Detroit ordinance c.'~rsced no "significant de-
terrent effect~ that might justify invocation of the F :_,-s~ Amendment ~over-
breadth~ doctrine. Id., at 59-61.
96 S.Ct. 2440, 427 U.S. 50, Young v. American Mini Theatres, Inc., (U.S.Mich. 1976) Page 1
*2440 96 S.Ct. 2440
and Mr. Justice Blackmun joined.
427 U.S. 50, 49 L.Ed.2d 310, 1 Media L. Rep.
1151
Coleman A. YOUNG, Mayor the City of
Detroit, et al., Petitioners,
V.
AMERICAN MINI THEATRES, INC., et al.
No. 75-312.
Supreme Court of the United States
Mr. Justice Blackmun dissented and filed opinion
in which Mr. Justice Brerman, Mr. Justice Stewart
and Mr. Justice Marshall joined.
1. MUNICIPAL CORPORATIONS~::* 121
268 ....
268IV Proceedings of Council or Other
Governing Body
268IV(B) Ordinances and By-Laws in General
268k121 Proceedings to determine validity of
ordinances.
Argued March 24, 1976.
Decided June 24, 1976.
Rehearing Denied Oct. 4, 1976.
See 429 U.S. 873, 97 S.Ct. 191.
The operator of an 'adult" movie theater appealed
from a ruling of the United States District Court for
the Eastern District of Michigan, Southern Division,
373 F.Supp. 363, upholding the validity of Detroit
ordinances prohibiting operation of any "adult"
movie theater, bookstore and similar establishments
within 1000 feet of any other such establishment, or
within 500 feet of a residential area. The Court of
Appeals, Sixth Circuit, reversed, 518 F.2d 1014.
Following grant of certiorari, the Supreme Court,
Mr. Justice Stevens, held that where theaters
proposed to offer adult fare on regular basis and
alleged that they admitted only adult patrons, and
neither indicated any plan to exhibit pictures even
arguably outside coverage of the ordinances, so that
theaters were not affected by alleged vagueness,
their challenge to ordinances on ground of alleged
vagueness resulting in inadequate notice of what was
prohibited would not be considered though
ordinances affected communication protected by
First Amendment. The ordinances were not
violative of First Amendment rights or of the equal
protection clause of the Fourteenth Amendment.
Judgment of Court of Appeals reversed.
Mr. Justice Powell filed an opinion concurring in
part.
Mr. Justice Stewart dissented and fried opinion in
which Mr. Justice Brennan, Mr. Justice Marshall
U.S.Mich. 1976.
Where theaters proposed to offer adult fare on
regular basis and alleged that they admitted only
adult patrons, and neither indicated any plan to
exhibit pictures even arguably outside coverage of
municipal ordinances, so that theaters were not
affected by alleged vagueness, their challenge to
ordinances on ground of alleged vagueness resulting
in inadequate notice of what was prohibited would
not be considered though ordinances affected
communication protected by First Amendment.
U.S.C.A.Const. Amends. 1, 14.
2. CONSTITUTIONAL LAW¢::* 42(1)
92 ....
92II Construction, Operation,
92k41
92k42
92k42(1)
and
Enforcement of Constitutional Provisions
Persons Entitled to Raise Constitutional
Questions
In General
In general.
U.S.Mich. 1976.
Where very existence of statute may cause persons
not before court to refrain from engaging in
constitutionally protected speech or expression,
exception, in allowing litigant to assert rights of
third parties, is justified by overriding importance of
maintaining free and open market for interchange of
ideas, but if deterrent effect of statute on legitimate
expression is not both real and substantial and if
statute is readily subject to narrowing construction
by state courts, litigant is not permitted to assert
rights of third parties. U.S.C.A.Const. Amends. 1,
14.
3. CONSTITUTIONAL LAW,z=, 46(1)
92 ....
92II Construction, Operation,
and
Copyright (c) West Group 1998 No claim to original U.S. Govt. works
96 S.Ct. 2440, 427 U.S. 50, Young v. American Mini Theatres, Inc., (U.S.Mich. 1976) Page 2
Enforcement of Constitutional Provisions
92k44 Determination of Constitutional
Questions
92k46 Necessity of Determination
92k46(1) In general.
U.S.Mich. 1976.
There being less vital interest in uninhibited
exhibition of material on borderline between
pornography and artistic expression than in free
dissemination of ideas of social and political
significance, and where limited amount of
uncertainty in ordinances was easily susceptible of
narrowing construction, case was inappropriate one
in which to adjudicate hypothetical claims of persons
not before the court. U.S.C.A.Const. Amends. 1,
14.
4. ZONING AND PLANNING~::~ 76
414 ....
414II Validity of Zoning Regulations
414II(B) Regulations as to Particular Matters
414k76 Particular uses.
U.S.Mich. 1976.
Municipality may control location of theaters as
well as location of other commercial establishments,
either by confining them to certain specified
commercial zones or by requiring that they be
dispersed throughout the city. U.S.C.A.Const.
Amend. 1.
5. CONSTITUTIONAL LAW<Er=, 90.1(4)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.1 Particular Expressions and
Limitations
92k90.1(4) Use of streets and public places;
licenses and permits.
U.S.Mich. 1976.
Mere fact that commercial exploitation of material
protected by First Amendment was subjected to
zoning and other licensing requirements was not
sufficient reason for invalidating city ordinances as
prior restraints on free speech. U.S.C.A.Const.
Amend. 1.
6. CONSTITUTIONAL LAW~=~ 90(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90(3) Limitations on doctrine in general.
Formerly 92k90.1(1)
U.S.Mich. 1976.
Reasonable regulations of time, place and manner
of protected speech, where those regulations are
necessary to further significant governmental
interests, are permitted by First Amendment.
U.S.C.A.Const. Amend. 1.
7. CONSTITUTIONAL LAW~:=, 90(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90(3) Limitations on doctrine in general.
U.S.Mich. 1976.
Question whether speech is, or is not, protected by
First Amendment often depends on content of
speech. (Per Mr. Justice Stevens with three Justices
concurring.) U.S.C.A.Const. Amend. 1.
8. CONSTITUTIONAL LAW~:=, 90(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90(3) Limitations on doctrine in general.
U.S.Mich. 1976.
Even within area of protected speech, difference in
content may require a different governmental
response. (Per Mr. Justice Stevens with three
Justices concurring.) U.S.C.A.Const. Amends. 1,
14.
9. CONSTITUTIONAL LAW~::= 90(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90(3) Limitations on doctrine in general.
U.S.Mich. 1976.
General rule prohibits regulation based on content
of protected communication, and essence of rule is
need for absolute neutrality by government; its
regulation of communication may not be affected by
sympathy or hostility for point of view being
expressed by communicator. (Per Mr. Justice
Stevens with three Justices concurring.)
U.S.C.A.Const. Amends. 1, 14.
10.CONSTITUTIONAL LAW,E:=' 90.2
Copyright (c) West Group 1998 No claim to original U.S. Govt. works
96 S.Ct. 2440, 427 U.S. 50, Young v. American Mini Theatres, Inc., (U.S.Mich. 1976) Page 3
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.2 Commercial speech in general.
92XI Equal Protection of Laws
92k228.2 Zoning, planning,
regulations.
and building
Formerly 92k90.1(1)
U.S.Mich. 1976.
Measure *2440 of constitutional protection to be
afforded commercial speech will surely be governed
largely by content of communication; difference
between commercial price and product advertising
and ideological communication permits regulation of
former that First Amendment would not tolerate
with respect to latter. (Per Mr. Justice Stevens with
three Justices concurring.) U.S.C.A.Const.
Amends. 1, 14.
Il.CONSTITUTIONAL LAW~::* 90.4(4)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.4 Obscenity and Pornography
92k90.4(4) Motion pictures.
Formerly 92k90.1(6)
U.S.Mich. 1976.
First Amendment protects communication, in area
of motion picture films of sexual activities, from
total suppression, but state may legitimately use
contents of these materials as basis for placing them
in different classification from other motion
pictures. (Per Mr. Justice Stevens with three
Justices concurring.) U.S.C.A.Const. Amends. 1,
14.
12.MUNICIPAL CORPORATIONS~::* 589
268 ....
268X Police Power and Regulations
268X(A) Delegation, Extent, and Exercise of
Power
268k589 Nature and scope of power of
municipality.
U.S.Mich. 1976.
City must be allowed reasonable opportunity to
experiment with solutions to admittedly serious
problems. (Per Mr. Justice Stevens with three
Justices concurring.) U.S.C.A.Coust. Amends. 1,
14.
13.CONSTITUTIONAL LAW¢=, 228.2
U.S.Mich. 1976.
In view of serious problems to which city's
ordinances were addressed, in view of district
court's finding that burden on First Amendment
rights from enforcement of ordinances would be
slight, and in view of factual basis, disclosed by
record, for common council's conclusion that
restriction imposed would have desired effect, city's
interest in present and future character of its
neighborhoods supported its classification of motion
pictures, and, accordingly, zoning ordinances
providing that adult motion picture theaters not be
located within 1000 feet of two other regulated uses
or within 500 feet of a residential area did not
violate equal protection clause of Fourteenth
Amendment. (Per Mr. Justice Stevens with three
Justices concurring.) U.S.C.A.Const. Amends. 1,
14.
*2442 Syllabus (FN*)
Respondent operators of two adult motion picture
theaters brought this action against petitioner city
officials for injunctive relief and a declaratory
judgment of unconstitutionality regarding two 1972
Detroit zoning ordinances that amended an "Anti-
Skid Row Ordinance" adopted 10 years earlier. The
1972 ordinances provide that an adult theater may
not (apart from a special waiver) be located within
1,000 feet of any two other "regulated uses" or
within 500 feet of a residential area. The term
"regulated uses" applies to 10 different kinds of
establishments in addition to adult theaters, including
adult book stores, cabarets, bars, taxi dance halls,
and hotels. If the theater is used to present
"material distinguished or characterized by an
emphasis on matter depicting... 'Specified Sexual
Activities' or 'Specified Anatomical Areas' "it is an
"adult" establishment. The District Court upheld the
ordinances, and granted petitioners' motion for
summary judgment. The Court of Appeals *2443
reversed, holding that the ordinances constituted a
prior restraint on constitutionally protected
communication and violated equal protection.
Respondents, in addition to asserting the correctness
of that court's ruling with respect to those
constitutional issues, contend that the ordinances are
void for vagueness. While not attacking the
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specificity of the definitions of sexual activities or
anatomical areas, respondents maintain (1) that they
cannot determine how much of the described activity
may be permissible before an exhibition is
"characterized by an emphasis" on such matter, and
(2) that the ordinances do not specify adequate
procedures or standards for obtaining a waiver of
the 1,000-foot restriction. Held:
1. The ordinances as applied to these respondents
do not violate the Due Process Clause of the
Fourteenth Amendment on the ground of vagueness.
Pp. 2446-2448.
(a) Neither of the asserted elements of vagueness
has affected these respondents, both of which
propose to offer adult fare on a regular basis and
allege no ground for claiming or anticipating any
waiver of the 1,000-foot restriction. P. 2446.
[427 U.S. 51] (b) T ordinances will have no
demonstrably significant effect on the exhibition of
films protected by the First Amendment. To the
extent that any area of doubt exists as to the amount
of sexually explicit activity that may be portrayed
before material can be said to be "characterized by
an emphasis' on such matter, there is no reason why
the ordinances are not "readily subject to a
narrowing construction by the state courts." This
would therefore be an inappropriate case to apply
the principle urged by respondents that they be
permitted to challenge the ordinances, not because
their own rights of free expression are violated, but
because of the assumption that the ordinances' very
existence may cause others not before the court to
refrain from constitutionally protected speech or
expression. Pp. 2446-2448.
2. The ordinances are not invalid under the First
Amendment as prior restraints on protected
communication because of the licensing or zoning
requirements. Though adult films may be exhibited
commercially only in licensed theaters, that is also
true of all films. That the place where films may be
exhibited is regulated does not violate free
expression, the city's interest in planning and
regulating the use of property for commercial
purposes being clearly adequate to support the
locational restriction. P. 2448.
518 F.2d 1014, reversed.
Maureen P. Reilly, Detroit, Mich., for petitioners.
Stephen M. Taylor, Detroit, Mich., and John H.
Weston for respondents.
[427 U.S. 52] Mr. Justice STEVENS delivered the
opinion of the Court. (FN*)
Zoning ordinances adopted by the city of Detroit
differentiate between motion picture theaters which
exhibit sexually explicit "adult" movies and those
which do not. The principal question presented by
this case is whether that statutory classification is
unconstitutional because it is based on the content of
communication protected by the First Amendment.
(FN1)
Effective November 2, 1972, Detroit adopted the
ordinances challenged in this litigation. Instead of
concentrating "adult" theaters in limited zones, these
ordinances require that such theaters be dispersed.
Specifically, an adult theater may not be located
within 1,000 feet of any two other *2444
"regulated uses" or within 500 feet of a residential
area. (FN2) The term "regulated uses" includes 10
different kinds of establishments in addition to adult
theaters. (FN3)
[427 U.S. 53] The classification of a theater as
"adult" is expressly predicated on the character of
the motion pictures which it exhibits. If the theater
is used to present "material distinguished or
characterized by an emphasis on matter depicting,
describing or relating to 'Specified Sexual
Activities' or 'Specified Anatomical Areas,' "(FN4)
it is an adult establishment. (FN5)
[427 U.S. 54] The 1972 ordinances were
amendments to an "Anti-Skid Row Ordinance"
which had been adopted 10 years earlier. At that
time the Detroit Common Council made a finding
that some uses of property are especially injurious to
a neighborhood when they are concentrated in
limited areas. (FN6) The decision to add adult
motion picture theaters and adult book stores to the
list of businesses which, apart from a special
waiver, (FN7) *2445 could not be located within
1,000 feet of two other "regulated uses," was, in
part, a response to the significant growth in the
number [427 U.S. 55] of such establishments. (FN8)
In the opinion of urban planners and real estate
experts who supported the ordinances, the location
of several such businesses in the same neighborhood
tends to attract an undesirable quantity and quality of
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transients, adversely affects property values, causes
an increase in crime, especially prostitution, and
encourages residents and businesses to move
elsewhere.
] the opinion that the ordinance was a valid" 'time,
place and manner' regulation," rather than a
regulation of speech on the basis of its content.
(FN15)
Respondents are the operators of two adult motion
picture theaters. One, the Nortown, was an
established theater which began to exhibit adult films
in March 1973. The other, the Pussy Cat, was a
comer gas station which was converted into a "mini
theater," but denied a certificate of occupancy
because of its plan to exhibit adult films. Both
theaters were located within 1,000 feet of two other
regulated uses and the Pussy Cat was less than 500
feet from a residential area. The respondents
brought two separate actions against appropriate city
officials, seeking a declaratory judgment that the
ordinances were unconstitutional and an injunction
against their enforcement. Federal jurisdiction was
properly invoked (FN9) and the two cases were
consolidated for decision. (FN10)
Because of the importance of the decision, we
granted certiorari, 423 U.S. 911, 96 S.Ct. 214, 46
L.Ed.2d 139.
As they did in the District Court, respondents
contend (1) that the ordinances are so vague that
they violate the Due Process Clause of the
Fourteenth Amendment; (2) that they are invalid
under the First Amendment as prior restraints on
protected communication; and (3) that the
classification of theaters on the basis of the content
of their exhibitions violates the Equal Protection
Clause of the Fourteenth Amendment. We consider
their arguments in that order.
The District Court granted defendants' motion for
summary judgment. 373 F.Supp. 363. On the basis
of the reasons stated [427 U.S. 56] by the city for
adopting the ordinances, the court concluded that
they represented a rational attempt to preserve the
city's neighborhoods. (FNll) The court analyzed
and rejected respondents' argument that the
definition and waiver provisions in the ordinances
were impermissibly vague; it held that the disparate
treatment of adult theaters and other theaters was
justified by a compelling state interest and therefore
did not violate the Equal Protection Clause; (FN12)
and finally it concluded that the *2446 regulation
of the places where adult films could be shown did
not violate the First Amendment. (FN13)
[427 U.S. 57] The Court of Appeals reversed.
American Mini Theatres, Inc. v. Gribbs, 518 F.2d
1014 (CA6 1975). The majority opinion concluded
that the ordinances imposed a prior restraint on
constitutionally protected communication and
therefore "merely establishing that they were
designed to serve a compelling public interest"
provided an insufficient justification for a
classification of motion picture theaters on the basis
of .the content of the materials they purvey to the
public. (FN14) Relying primarily on Police
Department of Chicago v. Mosley, 408 U.S. 92, 92
S.Ct. 2286, 33 L.Ed.2d 212, the court held the
ordinance invalid under the Equal Protection Clause.
Judge Celebrezze, in dissent, expressed[427 U.S. 58
There are two parts to respondents' claim that the
ordinances are too vague. They do not attack the
specificity of the definition of "Specified Sexual
Activities" or "Specified Anatomical Areas." They
argue, however, that they cannot determine how
much of the described activity may be permissible
before the exhibition is "characterized by an
emphasis" on such matter. In addition, they argue
that the ordinances are vague because they do not
specify adequate procedures or standards for
obtaining a waiver of the 1,000-foot restriction.
[1] We fred it unnecessary to consider the validity
of either of these arguments in the abstract. For
even if there may be some uncertainty about the
effect of the [427 U.S. 59] ordinances on other
litigants, they are unquestionably applicable to these
respondents. The record indicates that both theaters
*2447 propose to offer adult fare on a regular
basis. (FN16) Neither respondent has alleged any
basis for claiming or anticipating any waiver of the
restriction as applied to its theater. It is clear,
therefore, that any element of vagueness in these
ordinances has not affected these respondents. To
the extent that their challenge is predicated on
inadequate notice resulting in a denial of procedural
due process under the Fourteenth Amendment, it
must be rejected. Cf. Parker v. Levy, 417 U.S.
733, 754-757, 94 S.Ct. 2547, 2560-2562, 41
L.Ed.2d 439.
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[2] Because the ordinances affect communication
protected by the First Amendment, respondents
argue that they may raise the vagueness issue even
though there is no uncertainty about the impact of
the ordinances on their own rights. On several
occasions we have determined that a defendant
whose own speech was unprotected had standing to
challenge the constitutionality of a statute which
purported to prohibit protected speech, or even
speech arguably protected. (FN17) This exception[
427 U.S. 60] from traditional rules of standing to
raise constitutional issues has reflected the Court's
judgment that the very existence of some statutes
may cause persons not before the Court to refrain
from engaging in constitutionally protected speech
or expression. See Broadrick v. Oklahoma, 413
U.S. 601, 611-614, 93 S.Ct. 2908, 2915-2917, 37
L.Ed,2d 830. The exception is justified by the
overriding importance of maintaining a free and
open market for the interchange of ideas.
Nevertheless, if the statute's deterrent effect on
legitimate expression is not "both real and
substantial,' and if the statute is "readily subject to a
narrowing construction by the state courts," see
Erznoznik v. City of Jacksonville, 422 U.S. 205,
216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, the
litigant is not permitted to assert the rights of third
parties.
[3] We are not persuaded that the Detroit zoning
ordinances will have a significant deterrent effect on
the exhibition of films protected by the First
Amendment. [427 U.S. 61] As already noted, the
only vagueness in the *2448 ordinances relates to
the amount of sexually explicit activity that may be
portrayed before the material can be said .to
"characterized by an emphasis" on such matter. For
most films the question will be readily answerable;
to the extent that an area of doubt exists, we see no
reason why the ordinances are not "readily subject
to a narrowing construction by the state courts."
Since there is surely a less vital interest in the
uninhibited exhibition of material that is on the
borderline between pornography and artistic
expression than in the free dissemination of ideas of
social and political significance, and since the
limited amount of uncertainty in the ordinances is
easily susceptible of a narrowing construction, we
think this is an inappropriate case in which to
adjudicate the hypothetical claims of persons not
before the Court.
The only area of protected communication that
may be deterred by these ordinances comprises films
containing material falling within the specific
definitions of "Specified Sexual Activities" or
"Specified Anatomical Areas." The fact that the
First Amendment protects some, though not
necessarily all, of that material from total
suppression does not warrant the further conclusion
that an exhibitor's doubts as to whether a borderline
film may be shown in his theater, as well as in
theaters licensed for adult presentations, involves the
kind of threat to the free market in ideas and
expression that justifies the exceptional approach to
constitutional adjudication recognized in cases like
Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct.
1116, 14 L.Ed.2d 22.
The application of the ordinances to respondents is
plain; even if there is some area of uncertainty about
their application in other situations, we agree with
the District Court that respondents' due process
argument must be rejected.
[427 U.S. 62]
II
Petitioners acknowledge that the ordinances
prohibit theaters which are not licensed as "adult
motion picture theaters" from exhibiting films which
are protected by the First Amendment. Respondents
argue that the ordinances are therefore invalid as
prior restraints on free speech.
The ordinances are not challenged on the ground
that they impose a limit on the total number of adult
theaters which may operate in the city of Detroit.
There is no claim that distributors or exhibitors of
adult films are denied access to the market or,
conversely, that the viewing public is unable to
satisfy its appetite for sexually explicit fare. Viewed
as an entity, the market for this commodity is
essentially unrestrained.
[4] [5] It is true, however, that adult films may
only be exhibited commercially in licensed theaters.
But that is also true of all motion pictures. The
city's general zoning laws require all motion picture
theaters to satisfy certain locational as well as other
requirements; we have no doubt that the
municipality may control the location of theaters as
well as the location of other commercial
establishments, either by cord'ming them to certain
specified commercial zones or by requiring that they
be dispersed throughout the city. The mere fact that
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the commercial exploitation of material protected by
the First Amendment is subject to zoning and other
licensing requirements is not a sufficient reason for
invalidating these ordinances.
[6] Putting to one side for the moment the fact that
adult motion picture theaters must satisfy a
Iocational restriction not applicable to other theaters,
we are also persuaded that the 1,000-foot restriction
does not, in itself, create an impermissible restraint
on protected communication. The city's interest in
planning and regulating the use of property for
commercial purposes [427 U.S. 63] is clearly
adequate to support that kind of restriction
applicable to all theaters within the city limits. In
short, apart from the fact that the ordinances treat
adult theaters differently from other theaters and the
fact that the classification is predicated on the
content of material shown in the respective theaters,
the regulation of the place where such films may be
exhibited does not *2449 offend the First
Amendment. (FN18) We turn, therefore, to the
question whether the classification is consistent with
the Equal Protection Clause.
III
A remark attributed to Voltaire characterizes our
zealous adherence to the principle that the
government may not tell the citizen what he may or
may not say. Referring to a suggestion that the
violent overthrow of tyranny might be legitimate, he
said: "I disapprove of what you say, but I will
defend to the death your right to say it." (FN19)
The essence of that comment has been repeated time
after time in our decisions invalidating attempts by
the government to impose selective controls upon
the dissemination of ideas.
Thus, the use of streets and parks for the free
expression of views on national affairs may not be
conditioned upon the sovereign's agreement with
what a speaker may intend to say. (FN20) Nor may
speech be curtailed because it [427 U.S. 64] invites
dispute, creates dissatisfaction with conditions the
way they are, or even stirs people to anger. (FN21)
The sovereigu's agreement or disagreement with the
content of what a speaker has to say may not affect
the regulation of the time, place, or manner of
presenting the speech.
If picketing in the vicinity of a school is to be
allowed to express the point of view of labor, that
means of expression in that place must be allowed
for other points of view as well. As we said in
Mosley:
"The central problem with Chicago's ordinance is
that it describes permissible picketing in terms of
its subject matter. Peaceful picketing on the
subject of a school's labor-management dispute is
permitted, but all other peaceful picketing is
prohibited. The operative distinction is the
message on a picket sign. But, above all else, the
First Amendment means that government has no
power to restrict expression because of its
message, its ideas, its subject matter, or its
content. Cohen v. California, 403 U.S. 15, 24, 91
S.Ct. 1780, 1787, 29 L. Ed.2d 284 (1971); Street
v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22
L.Ed.2d 572 (1969); New York Times Co. v.
Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710,
720-721, 11 L.Ed.2d 686 (1964), and cases cited;
NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct.
328, 344, 9 L.Ed.2d 405 (1963); Wood v.
Georgia, 370 U.S. 375, 388-389, 82 S.Ct. 1364,
1371-1372, 8 L.Ed.2d 569 (1962); Terminiello v.
Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93
L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S.
353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937).
To permit the continued building of our politics
and culture, and to assure self-fulfillment for each
individual, our people are guaranteed the right to
express any thought, free from government
censorship. The essence of this forbidden
censorship is content control. Any restriction on
expressive activity because of its content[427 U.S.
65] would completely undercut the 'profound
national commitment to the principle that debate on
public issues should be uninhibited, robust, and
wide-open.' New York Times Co. v. Sullivan,
supra, 376 U.S., at 270, 84 S.Ct., at 721.
*2450 "Necessarily, then, under the Equal
Protection Clause, not to mention the First
Amendment itself, government may not grant the
use of a forum to people whose views it fmds
acceptable, but deny use to those wishing to
express less favored or more controversial views.
And it may not select which issues are worth
discussing or debating in public facilities. There is
an 'equality of status in the field of ideas,' and
government must afford all points of view an equal
opportunity to be heard. Once a forum is opened
up to assembly or speaking by some groups,
government may not prohibit others from
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assembling or speaking on the basis of what they
intend to say. Selective exclusions from a public
forum may not be based on content alone, and may
not be justified by reference to content alone." 408
U.S., at 95-96, 92 S.Ct., at 2290. (Footnote
omitted.) ·
This statement, and others to the same effect, read
literally and without regard for the facts of the case
in which it was made, would absolutely preclude
any regulation of expressive activity predicated in
whole or in part on the content of the
conununication. But we learned long ago that broad
statements of principle, no matter how correct in the
context in which they are made, are sometimes
qualified by contrary decisious before the absolute
limit of the stated principle is reached. (FN22)
When we review this Court's actual adjudications in
the First Amendment area, we find this to have been
the case [427 U.S. 66] with the stated principle that
there may be no restriction whatever on expressive
activity because of its content.
[7] The question whether speech is, or is not,
protected by the First Amendment often depends on
the content of the speech. Thus, the line between
permissible advocacy and impermissible incitation to
crime or violence depends, not merely on the setting
in which the speech occurs, but also on exactly what
the speaker had to say. (FN23) Similarly, it is the
content of the utterance that determines whether it is
a protected epithet or an unprotected "fighting
comment." (FN24) And in time of war "the
publication of the sailing dates of transports or the
number and location of troops" may unquestionably
be restrained, see Near v. Minnesota ex rel. Olson,
283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed.
1357, although publication of news stories with a
different content would be protected.
[8] Even within the area of protected speech, a
difference in content may require a different
governmental response. In New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d
686, we recognized that the First Amendment places
limitations on the States' power to enforce their libel
laws. We held that a public official may not recover
damages from a critic of his official conduct without
proof of "malice" as specially defmed in that
opinion. (FN25) Implicit in the opinion is the
assumption that if the content of the newspaper
article had been different that is, if its subject matter
had not been a public official a lesser standard of
proof would have been adequate.
[9] [427 U.S. 67] In a series of later cases, in
which separate individual views were frequently
stated, the Court addressed the broad problem of
when the New York Times standard '2451 of
malice was required by the First Amendment.
Despite a diversity of opinion on whether it was
required only in cases involving public figures, or
also in cases involving public issues, and on whether
the character of the damages claim mattered, a
common thread which ran through all the opinions
was the assumption that the rule to be applied
depended on the content of the communication.
(FN26) But that assumption did not contradict the
underlying reason for the rule which is generally
described as a prohibition of regulation based on the
content of protected communication. The essence of
that rule is the need for absolute neutrality by the
government; its regulation of communication may
not be affected by sympathy or hostility for the point
of view being expressed by the communicator.
(FN27) Thus, although [427 U.S. 68] the content of
story must be examined to decide whether it
involves a public figure or a public issue, the
Court's application of the relevant rule may not
depend on its favorable or unfavorable appraisal of
that figure or that issue.
[10] We have recently held that the First
Amendment affords some protection to commercial
speech. (FN28) We have also made it clear,
however, that the content of a particular
advertisement may determine the extent of its
protection. A public rapid transit system may accept
some advertisements and reject others. (FN29) A
state statute may permit highway billboards to
advertise businesses located in the neighborhood but
not elsewhere, (FN30) and regulatory commissions
may prohibit businessmen from making statements
which, though literally true, are potentially
deceptive. (FN31) The measure of *2452
constitutional protection[427 U.S. 69] to be
afforded commercial speech will surely be governed
largely by the content of the communication. (FN32)
More directly in point are opinions dealing with the
question whether the First Amendment prohibits the
State and Federal Governments from wholly
suppressing sexually oriented materials on the basis
of their ~obscene character." In Ginsberg v. New
York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d
195, the Court upheld a conviction for selling to a
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minor magazines which were concededly not
"obscene" if shown to adults. Indeed, the Members
of the Court who would accord the greatest
protection to such materials have repeatedly
indicated that the State could prohibit the distribution
or exhibition of such materials to juveniles and
unconsenting adults. (FN33) Surely the First
Amendment does [427 U.S. 70] not foreclose such a
prohibition;yet it is equally clear that any such
prohibition must rest squarely on an appraisal of the
content of material otherwise within a
constitutionally protected area.
Such a line may be drawn on the basis of content
without violating the government's paramount
obligation of neutrality in its regulation of protected
communication. For the regulation of the places
where sexually explicit films may be exhibited is
unaffected by whatever social, political, or
philosophical message a film may be intended to
communicate; whether a motion picture ridicules or
characterizes one point of view or another, the effect
of the ordinances is exactly the same.
restriction will have the *2453 desired effect.
(FN34) It is not our function to appraise the
wisdom of its decision to require adult theaters to be
separated rather than concentrated in the same areas.
In either event, the city's interest in attempting to
preserve the quality of urban life is one that must be
accorded high respect. Moreover, the city must be
allowed a reasonable opportunity to experiment with
solutions to admittedly serious problems.
Since what is ultimately at stake is nothing more
than a limitation on the place where adult films may
be exhibited, (FN35) even though the determination
of whether a [427 U.S. 72] particular film fits that
characterization tums on the nature of its content,
we conclude that the city's interest in the present
and future character of its neighborhoods adequately
supports its classification of motion pictures. We
hold that the zoning ordinances requiring that adult [
427 U.S. 73] motion picture theaters not be located
within 1,000 feet of two other regulated uses does
not violate the Equal Protection Clause of the
Fourteenth Amendment.
[11] Moreover, even though we recognize that the
First Amendment will not tolerate the total
suppression of erotic materials that have some
arguably artistic value, it is manifest that society's
interest in protecting this type of expression is of a
wholly different, and lesser, magnitude than the
interest in untrammeled political debate that inspired
Voltaire's immortal comment. Whether political
oratory or philosophical discussion moves us to
applaud or to despise what is said, every schoolchild
can understand why our duty to defend the right to
speak remains the same. But few of us would
march our sons and daughters off to war to preserve
the citizen's right to see nSpecified Sexual
Activities" exhibited in the theaters of our choice.
Even though the First Amendment protects
communication in this area from total suppression,
we hold that the State may legitimately use the
content of these materials as the basis [427 U.S. 71]
for placing them in a different classification from
other motion pictures.
[12] [13] The remaining question is whether the
line drawn by these ordinances is justified by the
city's interest in preserving the character of its
neighborhoods. On this question we agree with the
views expressed by District Judges Kennedy and
Gubow. The record disclosed a factual basis for the
Common Council's conclusion that this kind of
The judgment of the Court of Appeals is
Reversed.
Mr. Justice POWELL, concurring in the judgment
and portions of the opinion.
Although I agree with much of what is said in the
Court's opinion, and concur in Parts I and II, my
approach to the resolution of this case is sufficiently
different to prompt me to write separately. (FN1) I
view the *2454 case as presenting an example of
innovative land-use regulation, implicating First
Amendment concerns only incidentally and to a
limited extent.
One-half century ago this Court broadly sustained
the power of local municipalities to utilize the then
relatively novel concept of land-use regulation in
order to meet effectively the increasing
encroachments of urbanization upon the quality of
life of their citizens. Euclid v. Ambler Realty Co.,
272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).
The Court there noted the very practical
consideration underlying the necessity for such
power: "(W)ith the great increase and concentration
of population, problems have developed, and
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constantly are developing, which require, and will
continue to require, additional restrictions in respect
of the use and occupation of private lands in urban
communities." Id., at 386-387, 47 S.Ct., at 118.
The Court also [427 U.S. 74] laid out the general
boundaries within which the zoning power may
operate: Restrictions upon the free use of private
land must f'md their justifications in "some aspect of
the police power, asserted for the public welfare";
the legitimacy of any particular restriction must be
judged with reference to all of the surrounding
circumstances and conditions; and the legislative
judgment is to control in cases in which the validity
of a particular zoning regulation is "fairly
debatable." Id., at 387, 388, 47 S.Ct., at 118.
In the intervening years zoning has become an
accepted necessity in our increasingly urbanized
society, and the types of zoning restrictions have
taken on forms far more complex and innovative
than the ordinance involved in Euclid. In Village of
Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536,
39 L.Ed.2d 797 (1974), we considered an unusual
regulation enacted by a small Long Island
community in an apparent effort to avoid some of
the unpleasantness of urban living. It restricted land
use within the village to single-family dwellings and
defined "family" in such a way that no more than
two unrelated persons could inhabit the same house.
We upheld this ordinance, noting that desires to
avoid congestion and noise from both people and
vehicles were "legitimate guidelines in a land-use
project addressed to family needs" and that it was
quite within the village's power to "make the area a
sanctuary for people." Id., at 9, 94 S.Ct., at 1541.
II
Against this background of precedent, it is clear
beyond question that the Detroit Common Council
had broad regulatory power to deal with the problem
that prompted enactment of the Anti-Skid Row
Ordinance. As the Court notes, Ante, at 2444, and
n. 6, the Council was motivated by its perception
that the "regulated uses,' when concentrated,
worked a "deleterious effect upon the [427 U.S. 75]
adjacent areas" and could "contribute to the
blighting or downgrading of the surrounding
neighborhood." The purpose of preventing the
deterioratiunf commercial neighborhoods was
certainly within the concept of the public welfare
that defines the limits of the police power. See
Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98,
102, 99 L.Ed. 27 (1954). Respondents apparently
concede the legitimacy of the ordinance as passed in
1962, but challenge the amendments 10 years later
that brought within its provisions adult theaters as
well as adult bookstores and "topless" cabarets,
Those amendments resulted directly from the
Common Council's determination that the recent
proliferation of these establishments and their
tendency to cluster in certain parts of the city would
have the adverse effect upon the surrounding areas
that the ordinance was aimed at preventing.
Respondents' attack on the amended ordinance,
insofar as it affects them, can be stated simply.
Contending that it is the "character of the right, not
of the limitation," which governs the standard of
judicial review, see Thomas v. Collins, 323 U.S.
516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945),
and that zoning regulations therefore have no
talismanic immunity from constitutional *2455
challenge, cf. New York Times Co. v. Sullivan, 376
U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686
(1964), they argue that the 1972 amendments
abridge First Amendment rights by restricting the
places at which an adult theater may locate on the
basis of nothing more substantial than unproved
fears and apprehensions about the effects of such a
business upon the surrounding area. Cf., E. g.,
Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894,
93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S.
536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). And,
even if Detroit's interest in preventing the
deterioration of business areas is sufficient to justify
the impact upon freedom of expression, the
ordinance is nevertheless invalid because it
impermissibly[427 U.S. 76] discriminates between
types of theaters solely on the basis of their content.
See Police Dept. of Chicago v. Mosley, 408 U.S.
92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
I reject respondents' argument for the following
reasons.
III
This is the first case in this Court in which the
interests in free expression protected by the First
and Fourteenth Amendments have been implicated
by a municipality's commercial zoning ordinances.
Respondents would have us mechanically apply the
doctrines developed in other contexts. But this
situation is not analogous to cases involving
expression in public forums or to those involving
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individual expression or, indeed, to any other prior
case. The unique situation presented by this
ordinance calls, as cases in this area so often do, for
a careful inquiry into the competing concerns of the
State and the interests protected by the guarantee of
free expression.
Because a substantial burden rests upon the State
when it would limit in any way First Amendment
rights, it is necessary to identify with specificity the
nature of the infringement in each case. The
primary concern of the free speech guarantee is that
there be full opportunity for expression in all of its
varied forms to convey a desired message. Vital to
this concern is the corollary that there be full
opportunity for everyone to receive the message.
See, E. g., Whitney v. California, 274 U.S. 357,
377, 47 S.Ct. 641, 648, 71 L. Ed. 1095 (1927)
(Brandeis, J., concurring); Cohen v. California, 403
U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284
(1971); Procunier v. Martinez, 416 U.S. 396,
408409, 94 S.Ct. 1800, 1808-1809, 40 L.Ed.2d
224 (1974); Kleindienst v. Mandel, 408 U.S. 753,
762-765, 92 S.Ct. 2576, 2581-2582, 33 L.Ed.2d
683 (1972); Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. 748, 763-765, 96
S.Ct. 1817, 1826-1827, 48 L.Ed.2d 346 (1976).
Motion pictures, the medium of expression involved
here, are fully within the protection of the First [427
U.S. 77] Amendment. Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 501-503, 72 S.Ct. 777, 96
L.Ed. 1098 (1952). In the quarter century since
Burstyn motion pictures and an analons medium,
printed books, have been before this Court on many
occasions, and the person asserting a First
Amendment claim often has been a theater owner or
a bookseller. Our cases reveal, however, that the
central concern of the First Amendment in this area
is that there be a free flow from creator to audience
of whatever message a film or a book might convey.
Mr. Justice Douglas stated the core idea succinctly:
"In this Nation every writer, actor, or producer, no
matter what medium of expression he may use,
should be freed from the censor." Superior Films v.
Department of Education, 346 U.S. 587, 589, 74
S.Ct. 286, 287, 98 L.Ed. 329 (1954) (concurring
opinion). In many instances, for example with
respect to certain cr'mainal statutes or censorship or
licensing schemes, it is only the theater owner or the
bookseller who can protect this interest. But the
central First Amendment concern remains the need
to maintain free access of the public to the
expression. See, E. g., Kingsley Books, Inc. v.
Brown, 354 U.S. 436, 442, 77 S.Ct. 1325, 1
L. Ed.2d 1469 (1957); Smith v. California, 361 U.S.
147, 150, 153-154, 80 S.Ct. 215, 218-219, 4
L.Ed.2d 205 (1959); Interstate Circuit v. Dallas,
390 U.S. 676, 683-684, 88 S.Ct. 1298, 1302-1303,
20 *2456 L.Ed.2d 225 (1968); compare Marcus v.
Search Warrant, 367 U.S. 717, 736, 81 S.Ct. 1708,
1718, 6 L.Ed.2d 1127 (1961), and A Quantity of
Books v. Kansas, 378 U.S. 205, 213, 84 S.Ct.
1723, 1727, 12 L.Ed.2d 809 (1964), with Heller v.
New York, 413 U.S. 483, 491-492, 93 S.Ct. 2789,
2794, 37 L.Ed.2d 745 (1973); and cf. Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70-71, 83
S.Ct. 631,639, 9 L. Ed.2d 584 (1963).
In this case, there is no indication that the
application of the Anti-Skid Row Ordinance to adult
theaters has the effect of suppressing production of
or, to any significant degree, restricting access to
adult movies. The Nortown concededly will not be
able to exhibit adult movies at its present location,
and the ordinance limits the potential[427 U.S. 78]
location of the proposed Pussy Cat. The constraints
of the ordinance with respect to location may indeed
create economic loss for some who are engaged in
this business. But in this respect they are affected
no differently from any other commercial enterprise
that suffers economic detriment as a result of land-
use regulation. The cas are legion that sustained
zoning against claims of serious economic damage.
See, E. g., Zahn v. Board of Public Works, 274
U.S. 325, 47 S.Ct. 594, 71 L. Ed. 1074 (1927).
The inquiry for First Amendment purposes is not
concerned with economic impact; rather, it looks
only to the effect of this ordinance upon freedom of
expression. This prompts essentially two inquiries:
(i) Does the ordinance impose any content limitation
on the creators of adult movies or their ability to
make them available to whom they desire, and (ii)
does it restrict in any significant way the viewing of
these movies by those who desire to see them? On
the record in this case, these inquiries must be
answered in the negative. At most the impact of the
ordinance on these interests is incidental and
minimal. (FN2) Detroit has silenced no message,
has invoked no censorship, and has imposed no
limitation upon those who wish to view them. The
ordinance is addressed only to the places at which
this type of [427 U.S. 79] expression may be
presented, a restriction that does not interfere with
content. Nor is there any significant overall
curtailment of adult movie presentations, or the
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oppommity for a message reach an audience. On
the basis of the District Court's finding, Ante, at
2453, n. 35, it appears that if a sufficient market
exists to support them the number of adult movie
theaters in Detroit will remain approximately the
same, free to purvey the same message. To be sure
some prospective patrons may be inconvenienced by
this dispersal. (FN3) But other patrons, depending
upon where they live or work, may fred it more
convenient to view an adult movie when adult
theaters are not concentrated in a particular section
of the city.
*2457 In these circumstances, it is appropriate to
analyze the permissibility of Detroit's action under
the four-part test of United States v. O'Brien, 391
U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L. Ed.2d
672 (1968). Under that test, a governmental
regulation is sufficiently justified, despite its
incidental impact upon First Amendment interests,
"if it is within the constitutional power of the
Government; if it furthers an important or
substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free [427 U.S. 80] expression; and if the
incidental restriction on . First Amendment
freedoms is no greater than is essential to the
furtherance of that interest." Ibid. The factual
distinctions between a prosecution for destruction of
a Selective Service registration certificate, as in
O'Brien, and this case are substantial, but the
essential weighing and balancing of competing
interestare the same. Cf. Procunier v. Martinez,
416 U.S., at 409-412, 94 S.Ct., at 1809-1810.
There is, as noted earlier, no question that the
ordinance was within the power of the Detroit
Common Council to enact. See Berman v. Parker,
348 U.S., at 32, 75 S.Ct., at 102. Nor is there
doubt that the interests furthered by this ordinance
are both important and substantial. Without stable
neighborhoods, both residential and commercial,
large sections of a modern city quickly can
deteriorate into an urban jungle with tragic
consequences to social, environmental, and
economic values. While I agree with respondents
that no aspect of the police power enjoys immunity
from searching constitutional scrutiny, it also is
undeniable that zoning, when used to preserve the
character of specific areas of a city, is perhaps "the
most essential function performed by local
government, for it is one of the primary means by
which we protect that sometimes difficult to define
concept of quality of life." Village of Belle Terre v.
Boraas, 416 U.S., at 13, 94 S.Ct., at 1543
(Marshall, J., dissenting).
The third and fourth tests of O'Brien also are met
on this record. It is clear both from the chronology
and from the facts that Detroit has not embarked on
an effort to suppress free expression. The ordinance
was already in existence, and its purposes clearly set
out, for a full decade before adult establishments
were brought under it. When this occurred, it is
clear indeed it is not seriously challenged that the
governmental interest prompting the inclusion in the
ordinance of adult establishments was wholly
unrelated to any suppression of [427 U.S. 81] free
expression. (FN4) Nor is there reason to question
*2458 that the degree of incidental encroachment
upon such expression was the minimum necessary to
further the purpose [427 U.S. 82] of the ordinance.
The evidence presented to the Common Council
indicated that the urban deterioration was
threatened, not by the concentration of all movie
theaters with other "regulated uses," but only by a
concentration of those that elected to specialize in
adult movies. (FN5) The case would present a
different situation had Detroit brought within the
ordinance types of theaters that had not been shown
to contribute to the deterioration of surrounding
areas. (FN6)
[427 U.S. 83]
IV
The dissenting opinions perceive support for their
position in Erznoznik v. City of Jacksonville, 422
U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). I
believe this perception is a clouded one. The
Jacksonville and Detroit ordinances are quite
dissimilar, and our analysis of the infirmities of the
former is inapplicable to the latter. In Erznoznik,
an ordinance purporting to prevent a nuisance, not a
comprehensive zoning ordinance, prohibited the
showing of films containing nudity by drive-in
theaters when the screens were visible from a public
street or place. The governmental interests
advanced as justifying the ordinance were three: (i)
to protect citizens from unwilling exposure to
possibly offensive material; (ii) to protect children
from such materials; and (iii) to prevent the slowing
of passing traffic and the likelihood of resulting
accidents. We found the Jacksonville ordinance on
its face either overbroad or underinclusive with
respect to each of these asserted purposes. As to the
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first purpose, the ordinance was overbroad because
it proscribed the showing of any nudity, however
innocent or educational. Moreover, potential
viewers who deemed particular nudity to be
offensive were not captives; they had only to look
elsewhere. Id., at 210-212, 95 S.Ct., at 2273-2274;
see Cohen v. California, 403 U.S., at 21, 91 S.Ct.,
at 1786. As to minors the Jacksonville ordinance
was overbroad because it "might prohibit newsreel
scenes of the opening of an art exhibit as well as
shots of bathers on a beach." 422 U.S., at 213, 95
S.Ct., at 2275. Finally, the *2459 ordinance was
not rationally tailored to support its asserted purpose
as a traffic regulation. By proscribing "even the
most fleeting and innocent glimpses of nudity," it
was strikingly underinclusive omitting "a wide
variety[427 U.S. 84] of other scenes in the
customary screen diet... (that) would be (no) less
distracting to the passing motorist." Id., at 214-215,
95 S.Ct., at 2275.
In sum, the ordinance in Erznoznik was a
misconceived attempt directly to regulate content of
expression. The Detroit zoning ordinance, in
contrast, affects expression only incidentally and in
furtherance of governmental interests wholly
unrelated to the regulation of expression. At least as
applied to respondents, it does not offend the First
Amendment. Although courts must be alert to the
possibility of direct rather than incidental effect of
zoning on expression, and especially to the
possibility of using the power to zone as a pretext
for suppressing expression, it is clear that this is not
such a case.
Mr. Justice STEWART, with whom Mr. Justice
BRENNAN, Mr. Justice MARSHALL, and Mr.
Justice BLACKMUN join, dissenting.
The Court today holds that the First and Fourteenth
Amendments do not prevent the city of Detroit from
using a system of prior restraints and criminal
sanctions to enforce content-based restrictions on the
geographic location of motion picture theaters that
exhibit nonobscene but sexually oriented films. I
dissent from this drastic departure from established
principles of First Amendment law.
This case does not involve a simple zoning
ordinance, (FN1) or a content-neutral time, place,
and manner restriction, (FN2)[427 U.S. 85] or a
regulation of obscene expression or other speech that
is entitled to less than the full protection of the First
Amendment. (FN3) The kind of expression at issue
here is no doubt objectionable to some, but that fact
does not diminish its protected status any more than
did the particular content of the "offensive"
expression in Erznoznik v. City of Jacksonville, 422
U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (display
of nudity on a drive-in movie screen); Lewis v. City
of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39
L.Ed.2d 214 (utterance of vulgar epithet); Hess v.
Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d
303 (utterance of vulgar remark); Papish v.
University of Missouri Curators, 410 U.S. 667, 93
S.Ct. 1197, 35 L.Ed.2d 618 (indecent remarks in
campus newspaper); Cohen v. California, 403 U.S.
15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (wearing of
clothing inscribed with a vulgar remark);
Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827,
23 L.Ed.2d 430 (utterance of racial slurs); or
Kingsley Pictures Corp. v. Regents, 360 U.S. 684,
79 $.Ct. 1362, 3 L.Ed.2d 1512 (alluring portrayal
of adultery as proper behavior).
What this case does involve is the constitutional
permissibility of selective interference with
protected speech whose content is thought to
produce distasteful effects. It is *2460 elementary
that a prime function of the First Amendment is to
guard against just such interference. (FN4) By
refusing to invalidate Detroit's ordinance the Court
rides roughshod over cardinal principles of First
Amendment[427 U.S. 86] law, which require that
time, place, and manner regulations that affect
protected expression be content neutral except in the
limited context of a captive or juvenile audience.
(FN5) In place of these principles the Court invokes
a concept wholly alien to the First Amendment.
Since "few of us would march our sons and
daughters off to war to preserve the citizen's right to
see 'Specified Sexual Activities' exhibited in the
theaters of our choice," Ante, at 2452, the Court
implies that these films are not entitled to the full
protection of the Constitution. This stands
"Voltaire's immortal comment," Ibid., on its head.
For if the guarantees of the First Amendment were
reserved for expression that more than a "few of us"
would take up arms to defend, then the right of free
expression would be defined and circumscribed by
current popular opinion. The guarantees of the Bill
of Rights were designed to protect against precisely
such majoritarian limitations on individual liberty.
(FN6)
[427 U.S. 87] The fact that the "offensive~ speech
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here may not address 'important" topics 'ideas of
social and political significance,' in the Court's
terminology, Ante, at 2447 does not mean that it is
less worthy of constitutional protection. "Wholly
neutral futilities . . . come under the protection of
free speech as fully as do Keats' poems or Donne's
sermons." Winters v. New York, 333 U.S. 507,
528, 68 S.Ct. 665, 676, 92 L.Ed. 840 (Frankfurter,
J., dissenting); accord, Cohen v. California, supra,
403 U.S., at 25, 91 S.Ct., at 1788. Moreover, in
the absence of a judicial determination of obscenity,
it is by no means clear that the speech is not
"important' even on the Court's terms. "(S)ex and
obscenity are not synonymous .... The portrayal of
sex, E. g., in art, literature and scientific works, is
not itself sufficient reason to deny material the
constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in
human life, has indisputably been a subject of
absorbing interest to mankind through the ages; it is
one of the vital problems of human interest and
public concern." Roth v. United States, 354 U.S.
476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498
(footnotes omitted). See also Kingsley Pictures
Corp. v. Regents, supra, 360 U.S., at 688-689, 79
S.Ct., at 1365.
I can only interpret today's decision as an
aberration. The Court is undoubtedly sympathetic,
as am I, to the well-intentioned efforts of Detroit to
"clean up' its streets and prevent the proliferation of
"skid rows." But it is in those instances where
protected speech grates most unpleasantly against the
sensibilities that judicial vigilance must be at its
height.
· 2461 Heretofore, the Court has not shied from its
responsibility to protect "offensive" speech from
governmental interference. Just last Term in
Erznoznik v. City of Jacksonville, supra, the Court
held that a city could not, consistently with the First
and Fourteenth Amendments, make it a public
nuisance for a drive-in movie theater to show films
containing nudity if the screen were visible [427
U.S. 88] from a public street or place. The factual
parallels between that case and this one are striking.
There, as here, the ordinance did not forbid
altogether the "distasteful" expression but merely
required alteration in the physical setting of the
forum. There, as here, the city's principal asserted
interest was in minimizing the "undesirable" effects
of speech having a particular content. And, most
significantly, the particular content of the restricted
speech at issue in Erznoznik precisely parallels the
content restriction embodied in s 1 of Detroit's
definition of 'Specified Anatomical Areas.'
Compare Jacksonville Municipal Code s 330.313
with Detroit Ordinance No. 742-G, s 32.0007. In
short, Erznoznik is almost on "all fours" with this
case.
The Court must never forget that the consequences
of rigorously enforcing the guarantees of the First
Amendment are frequently unpleasant. Much
speech that seems to be of little or no value will
enter the market place of ideas, threatening the
quality of our social discourse and, more generally,
the serenity of our lives. But that is the price to be
paid for constitutional freedom.
Mr. Justice BLACKMUN, with whom Mr. Justice
BRENNAN, Mr. Justice STEWART, and Mr.
Justice MARSHALL join, dissenting.
I join Mr. Justice STEWART's dissent, and write
separately to identify an independent ground on
which, for me, the challenged ordinance is
unconstitutional. That ground is vagueness.
We should put ourselves for a moment in the shoes
of the motion picture exhibitor. Let us suppose that,
having previously offered only a more innocuous
fare, he [427 U.S. 89] decides to vary it by
exhibiting on certain days films from a series which
occasionally deals explicitly with sex. The exhibitor
must determine whether this places h theater into the
"adult" class prescribed by the challenged
ordinance. If the theater is within that class, it must
be licensed, and it may be entirely prohibited,
depending on its location.
"Adult" status Vel non depends on whether the
theater is "used for presenting" films that are
"distinguished or characterized by an emphasis on'
certain specified activities, including sexual
intercourse, or specified anatomical areas. (FN1) It
will be simple enough, as the operator screens films,
to tell when one of these areas or activities is being
depicted, but if the depiction represents only a part
of the films' subject matter, I am at a loss to know
how he will tell whether they are "distinguished or
characterized by an emphasis" on those areas and
activities. The ordinance gives him no guidance.
Neither does it instruct him on how to tell whether,
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assuming the fdms in question are thus
"distinguished or characterized," his theater is being
"used for presenting" such films. That phrase could
mean Ever used, Often used, or Predominantly
used, to name a few possibilities.
Let us assume the exhibitor concludes that the film
series will render his showhouse an "adult" theater.
He still must determine whether the operation of the
theater is prohibited by virtue of there being two
other "regulated uses" within 1,000 feet. His task
of determining whether his own theater is "adult" is
suddenly multiplied by however many neighbors he
may have that arguably are within that same class.
He must, in other [427 U.S. 90] words, know and
*2462 evaluate not only his own films, but those of
any competitor within 1,000 feet. And neighboring
theaters are not his only worry, since the list of
regulated uses also includes "adult" bookstores,
"Group 'D' Cabaret(s)," sellers of alcoholic
beverages for consumption on the premises, hotels,
motels, pawnshops, pool halls, public lodging
houses, "secondhand stores," shoeshine parlors, and
"taxi dance halls." The exhitor must master all
these definitions. Some he will f'md very clear, of
course; others less so. A neighboring bookstore is
"adult," for example, if a "substantial or significant
portion of its stock in trade" is "distinguished or
characterized" in the same way as the films shown
in an "adult" theater.
The exhibitor's compounded task of applying the
statutory definitions to himself and his neighbors,
furthermore, is an ongoing one. At any moment he
could become a violator of the ordinance because
some neighbor has slipped into a 'regulated use"
classification. He must know, for example, if the
adjacent hotel has opened a bar or shoeshine
"parlor" on the premises, though he may still be
uncertain whether the hotel as a whole constitutes
more than one "regulated use." He must also know
the moment when the stock in trade of neighboring
bookstores and theaters comes to be of such a
character, and predominance, as to render them
"adult." Lest he let down his guard, he should
remember that if he miscalculates on any of these
issues, he may pay a fine or go to jail. (FN2)
It would not be surprising if, under the
circumstances, the exhibitor chose to forgo showing
the film series altogether. Such deterrence of
protected First Amendment activity in the "gray
area" of a statute's possible [427 U.S. 91] coverage
is, of course, one of the vices of vagueness. A
second is the tendency of vague statutory standards
to grant excessive and effectively unreviewable
discretion to the officials who enforce those
standards. That vice is also present here. It is
present because the vague standards already
described are left to the interpretation and
application of law enforcement authorities. (FN3) It
is introduced even more dangerously by the
indefinite standards under which city officials are
empowered to grant or deny licenses for "adult"
theaters, and also waivers of the 1,000-foot rule.
(FN4)
All "adult" theaters must be licensed, and licenses
are dispensed by the mayor. The ordinance does not
specify the criteria for licensing, except in one
respect. The mayor is empowered to refuse an
"adult" theater license, or revoke it at any time,
"upon proof submitted to him of the violation ....
within the preceding two years, of any criminal
statute . . . or (zoning) ordinance . . . which
evidences a flagrant disregard for the safety or
welfare of either the patrons, employees, or
persons residing or doing business nearby." Code
of Detroit s 5-2-3.
[427 U.S. 92] If the operation of an "adult" theater
would violate the 1,000-foot rule, the exhibitor must
obtain the approval not only of the mayor but of the
City Planning Commission, which is empowered to
waive the rule. It may grant a waiver if it f'mds that
the operation of an "adult" theater, in addition to
satisfying several more definite criteria, "will not be
contrary to the public interest or injurious to nearby
properties," or violative of "the spirit and intent" of
the ordinance.
*2463 II
Just the other day, in Hynes v. Mayor of Oradell,
425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243
(1976), we reaffirmed the principle that in the First
Amendment area" 'government may regulate . . .
only with narrow specificity,' "NAACP v. Button,
371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d
405 (1963), avoiding the use of language that is so
vague that "men of common intelligence must
necessarily guess at its meaning." Counally v.
General Constr. Co., 269 U.S. 385, 391, 46 S.Ct.
126, 127, 70 L.Ed. 322 (1926). In Hynes we
invalidated for its vagueness an ordinance that
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required "Civic Groups and Organizations," and
also anyone seeking to "call from house to house..
· for a recognized charitable . . . or . . . political
campaign or cause," to register with the local police
"for identification only." We found it intolerably
unclear what "Groups and Organizations" were
encompassed, what was meant by a "cause," and
what was required by way of "identification." I fail
to see how a statutory prohibition as difficult to
understand and apply as the 1,000-foot rule for
"adult" theaters can survive if the ordinance in
Hynes could not.
The vagueness in the licensing and waiver
standards of this ordinance is more pernicious still.
The mayor's power to deny a license because of
"flagrant disregard" for the "safety or welfare" of
others is apparently exercisable only over those who
have committed some [427 U.S. 93] infraction
within the previous two years, (FN5) but I do not
see why even those persons should be subject to
standardless licensing discretion of precisely the
kind that this Court so many times has condemned.
See Shuttlesworth v. Birmingham, 394 U.S. 147, 89
S.Ct. 935, 22. Ed.2d 162 (1969); Staub v. City of
Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302
(1958); Kunz v. New York, 340 U.S. 290, 71 S.Ct.
312, 95 L.Ed. 280 (1951); Niemotko v. Maryland,
340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951);
Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92
L.Ed. 1574 (1948); Schneider v. State, 308 U.S.
147, 163-164, 60 S.Ct. 146, 151-152, 84 L.Ed. 155
(1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954,
83 L.Ed. 1423 (1939); Lovell v. Griffin, 303 U.S.
444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). For the
exhibitor who must obtain a waiver of the 1,000-foot
rule, the City Planning Commission likewise
functions effectively as a censor, constrained only
by its perception of the "public interest" and the
"spirit and intent" of the ordinance. This Court
repeatedly has invalidated such vague standards for
prior approval of film exhibitions. See Interstate
Circuit v. Dallas, 390 U.S. 676, 683, 88 S.Ct.
1298, 1302, 20 L.Ed.2d 225 (1968), and cases
cited. (FN6) Indeed, a standard much like the
waiver standard[427 U.S. 94] in this case was the
one found wanting in Gelling v. Texas, 343 U.S.
960, 72 S.Ct. 1002, 96 L. Ed. 1359 (1952) (censor
could ban films "of such character as to be
prejudicial to the best interests of the people of said
City").
It is true that the mayor and the Planning
Commission review the applications of theaters,
rather than individual films. It might also be argued
that at least if they adhere to the "spirit and intent"
of the ordinance, their principal concern will be
*2464 with the blighting of the cityscape, rather
than that of the minds of their constituents. But
neither of these aspects of the case alters its basic
and dispositive facts: persons seeking to exhibit
"adult," but protected, films must secure, in many
cases, the prior approval of the mayor and City
Planning Commission; they inevitably will make
their decisions by reference to the content of the
proposed exhibitions; they are not constrained in
doing so by "narrowly drawn, reasonable and
definite standards." Niemotko v. Maryland, 340
U.S., at 271, 71 S.Ct., at 327. This may be a
permissible way to control pawnshops, pool halls,
and the other "regulated uses" for which the
ordinance was originally designed. It is not an
acceptable way, in the light of the First
Amendment's presence, to decide who will be
permitted to exhibit what films in what places.
III
The Court today does not really question these
settled principles, or raise any doubt that if they
were applied in this case, the challenged ordinance
would not survive. The Court reasons, instead, that
these principles need not be applied in this case
because the plaintiffs themselves are clearly within
the ordinance's proscriptions, and thus not affected
by its vagueness. Our usual practice, as the Court
notes, is to entertain facial challenges based on
vagueness and overbreadth by anyone subject to a
statute's proscription. The reasons given for
departing[427 U.S. 951 from this practice are (1)
that the ordinance will have no "significant deterrent
effect on the exhibition of films protected by the
First Amendment"; (2) that the ordinance is easily
susceptible of "a narrowing construction"; and (3)
that "there is surely a less vital interest in the
uninhibited exhibition of material that is on the
borderline between pornography and artistic
expression than in the free dissemination of ideas of
social and political significance." Ante, at 2447.
As to the first reason, I disagree on the facts, as is
clear from the initial section of this opinion. (FN7)
As to the second, no easy "narrowing construction"
is proposed, and I doubt that one exists, particularly
since (due to the operation of the 1,000-foot rule)
not only the "used for presenting" and
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"characterized by an emphasis" language relating to
"adult" theaters, and the "flagrant disregard" and
"public interest" language of the licensing and
waiver provisions, but also the definitions of Other
regulated uses must all be reduced to specificity.
See also Hynes v. Mayor of Oradell, 425 U.S., at
622, 96 S.Ct., at 1761. ("we are without power to
remedy the (vagueness) defects by giving the
ordinance constitutionally precise content").
[427 U.S. 96] As the third reason, that "adult"
material is simply entitled to less protection, it
certainly explains the lapse in applying settled
vagueness principles, as indeed it explains this
whole case. In joining Mr. Justice STEWART I
have joined his forthright rejection of the notion that
First Amendment protection is diminished for
"erotic materials" that only a "few of us" see the
need to protect.
We should not be swayed in this case by the
characterization of the challenged ordinance as
merely a "zoning" regulation, or by the "adult"
nature of the affected material. By whatever name,
this ordinance prohibits the showing of certain films
in certain places, imposing criminal sanctions
*2465. for violation of the ban. And however
distasteful we may suspect the films to be, we
cannot approve their suppression without any
judicial finding that they are obscene under this
Court's carefully delineated and considered
standards.
was measured from "any building containing a
residential, dwelling or rooming unit.' The city
did not appeal from that ruling, but adopted an
amendment prohibiting the operation of an adult
theater within 500 feet of any area zoned for
residential use. The amended restriction is not
directly challenged in this litigation.
FN3. In addition to adult motion picture theaters and
"mini" theaters, which contain less than 50 seats,
the regulated uses include adult bookstores;
cabarets (group "D"); establishments for the sale of
beer or intoxicating liquor for consumption on the
premises; hotels or motels; pawnshops; pool or
billiard halls; public lodging houses; secondhand
stores; shoeshine parlors; and taxi dance halls.
FN4. These terms are defined as follows:
"For the purpose of this Section, 'Specified Sexual
Activities' is defined as:
"1. Human Genitals in a state of sexual stimulation
or arousal;
"2. Acts of human masturbation, sexual intercourse
or sodomy;
"3. Fondling or other erotic touching of human
genitals, pubic region, buttock or female breast.
"And 'Specified Anatomical Areas' is defined as:
FN* The syllabus constitutes no part of the opinion
of the Court but has been prepared by the Reporter
of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber
Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
L.Ed. 499.
FN** Part III of this opinion is joined by only THE
CHIEF JUSTICE, Mr. Justice WHITE, and Mr.
Justice REHNQUIST.
FN1. "Congress shall make no law . . . abridging
the freedom of speech, or of the press .... "This
Amendment is made applicable to the States by the
Due Process Clause of the Fourteenth Amendment.
Edwards v. South Carolina, 372 U.S. 229, 83
S.Ct. 680, 9 L.Ed.2d 697.
FN2. The District Court held that the original form
of the 500-foot restriction was invalid because it
"1. Less than completely and opaquely covered: (a)
human genitals, pubic region, (b) buttock, and (c)
female breast below a point immediately above the
top of the areola; and
"2. Human male genitals in a discernibly turgid
state, even if completely and opaquely covered."
FN5. There are three types of adult establishments
bookstores, motion picture theaters, and mini
motion picture theaters defined respectively as
follows:
"Adult Book Store
"An establishment having as a substantial or
significant portion of its stock in trade, books,
magazines, and other periodicals which are
distinguished or characterized by their emphasis on
matter depicting, describing or relating to
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'Specified Sexual Activities' or 'Specified
Anatomical Areas,' (as defined below), or an
establishment with a segment or section devoted to
the sale or display of such material.
be observed.
"b) That the proposed use will not enlarge or
encourage the development of a 'skid row' area.
"Adult Motion Picture Theater
"An enclosed building with a capacity of 50 or
more persons used for presenting material
distinguished or characterized by an emphasis on
matter depicting, describing or relating to
'Specified Sexual Activities' or 'Specified
Anatomical Areas,' (as defmed below) for
observation by patrons therein.
"Adult Mini Motion Picture Theater
"An enclosed building with a capacity for less than
50 persons used for presenting material
distinguished or characterized by an emphasis on
matter depicting, describing or relating to
'Specified Sexual Activities' or 'Specified
Anatomical Areas,' (as defmed below), for
observation by patrons therein."
"c) That the establishment of an additional
regulated use in the area will not be contrary to
any program of neigh(bor)hood conservation nor
will it interfere with any program of urban
renewal.
"d) That all applicable regulations of this
Ordinance will be observed.,
*2465_ FN8. A police department memorandum
addressed to the assistant corporation counsel
stated that since 1967 there had been an increase in
the number of adult theaters in Detroit from 2 to
25, and a comparable increase in the number of
adult book stores and other "adult-type businesses."
FN9. Respondents alleged a claim for relief under
42 U.S.C. s 1983, invoking the jurisdiction of the
federal court under 28 U.S.C. s 1343(3).
FN6. Section 66.000 of the Official Zoning
Ordinance (1972) recited:
"In the development and execution of this
Ordinance, it is recognized that there are some
uses which, because of their very nature, are
recognized as having serious objectionable
operational characteristics, particularly when
several of them are concentrated under certain
circumstances thereby having a deleterious effect
upon the adjacent areas. Special regulation of
these uses is necessary to insure that these adverse
effects will not contribute to the blighting or
downgrading of the surrounding neighborhood.
These special regulations are itemized in this
section. The primary control or regulation is for
the purpose of preventing a concentration of these
uses in any one area (i. e. not more than two such
uses within one thousand feet of each other which
would create such adverse effects)."
FN7. The ordinance authorizes the Zoning
Commission to waive the 1,000-foot restriction if it
finds:
"a) That the proposed use will not be contrary to
the public interest or injurious to nearby properties,
and that the spirit and intent of this Ordinance will
FN10. Both cases were decided in a single opinion
filed jointly by Judge Kennedy and Judge Gubow.
Nortown Theatre v. Gribbs, 373 F.Supp. 363 (ED
Mich. 1974).
FNll. "When, as here, the City has stated a reason
for adopting an ordinance which is a subject of
legitimate concern, that statement of purpose is not
subject to attack.
"Nor may the Court substitute its judgment for that
of the Common Council of the City of Detroit as to
the methods adopted to deal with the City's
legitimate concern to preserve neighborhoods, so
long as there is some rational relationship between
the objective of the Ordinance and the methods
adopted." Id., at 367.
FN12. "Because the Ordinances distinguish adult
theatres and bookstores from ordinary theatres and
bookstores on the basis of the content of their
respective wares, the classification is one which
restrains conduct protected by the First
Amendment. See Interstate Circuit, Inc. v. Dallas,
390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225
(1968). The appropriate standard for reviewing the
classification, therefore, is a test of close scrutiny.
Harper v. Virginia Board of Elections, 383 U.S.
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663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966);
NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct.
328, 9 L.Ed.2d 405 (1963). Under this test, the
validity of the classification depends on whether it
is necessary to further a compelling State interest.
reference to the content of the constitutionally
protected materials which they purvey to the
public." 518 F.2d, at 1019-1020.
FN15. He stated in part:
"The compelling State interest which the
Defendants point to as justifying the restrictions on
locations of adult theatres and bookstores is the
preservation of neighborhoods, upon which adult
establishments have been found to have a
destructive impact. The affidavit of Dr. Mel
Ravitz clearly establishes that the prohibition of
more than one regulated use within 1000 feet is
necessary to promote that interest. This provision
therefore does not offend the equal protection
clause. ~ Id, at 369.
FN13. "Applying those standards to the instant case,
the power to license and zone businesses and
prohibit their location in certain areas is clearly
within the constitutional power of the City. The
government interest, i. e. the preservation and
stabilization of neighborhoods in the City of
Detroit, is unrelated to the suppression of free
expression. First Amendment rights are indirectly
related, but only in the sense that they cannot be
freely exercised in specific locations. Plaintiffs
would not contend that they are entitled to operate
a theatre or bookstore, which are commercial
businesses, in a residentially zoned area; nor could
they claim the right to put on a performance for
profit in a public street. Admittedly the regulation
here is more restrictive, but it is of the same
character." Id., at 371.
FN14. 'The City did not discharge its heavy burden
of justifying the prior restraint which these
ordinances undoubtedly impose by merely
establishing that they were designed to serve a
compelling public interest. Since fundamental
rights are involved, the City had the further burden
of showing that the method which it chose to deal
with the problem at hand was necessary and that its
effect on protected rights was only incidental. The
City could legally regulate movie theatres and
bookstores under its police powers by providing
that such establishments be operated only in
particular areas .... However, this ordinance
selects for special treatment particular business
enterprises which fall within the general business
classifications permissible under zoning laws and
classifies them as regulated uses solely by
"I do not view the 1000-foot provision as a
regulation of speech on the basis of its content.
Rather, it is a regulation of the right to locate a
business based on the side-effects of its location.
The interest in preserving neighborhoods is not a
subterfuge for censorship." Id., at 1023.
*2465_ FN16. Both complaints allege that only
adults are admitted to these theaters. Nortown
expressly alleges that it "desires to continue
exhibiting adult-type motion picture films at said
theater." Neither respondent has indicated any
plan to exhibit pictures even arguably outside the
coverage of the ordinances.
FN17. "Such claims of facial overbreadth have been
entertained in cases involving statutes which, by
their terms, seek to regulate 'only spoken words.'
Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct.
1103, 1105, 31 L.Ed.2d 408 (1972). See Cohen v.
California, 403 U.S. 15, 91 S.Ct. 1780, 29
L.Ed.2d 284 (1971); Street v. New York, 394
U.S. 576, 89 S.Ct. 1354, 22 L. Ed.2d 572 (1969);
Brandenburg v. Ohio, 395 U.S. ~.4a., 89 S.Ct.
1827, 23 L. Ed.2d 430 (1969); Chaplinsky v. New
Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L. Ed.
1031 (1942). In such cases, it has been the
judgment of this Court that the possible harm to
society in permitting some unprotected speech to
go unpunished is outweighed by the possibility that
protected speech of others may be muted and
perceived grievances left to fester because of the
possible inhibitory effects of overly broad statutes.
Overbreadth attacks have also been allowed where
the Court thought rights of association were
ensnared in statutes which, by their broad sweep,
might result in burdening innocent associations.
See Keyishian v. Board of Regents, 385 U.S. 589,
87 S.Ct. 675, 17 L.Ed.2d 629 (1967); United
States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19
L.Ed.2d 508 (1967); Aptheker v. Secretary of
State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d
992 (1964); Shelton v. Tucker (364 U.S. 479, 81
S.Ct. 247, 5 L.Ed.2d 231 (1960)). Facial
overbreadth claims have also been entertained
where statutes, by their terms, purport to regulate
the time, place, and manner of expressive or
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communicative conduct, see Grayned v. City of
Rockford, supra, 408 U.S., at 114-121, 92 S.Ct.,
at 2302-2306; Cameron v. Johnson, 390 U.S., at
617-619, 88 S.Ct., at 1338, 1339; Zwickler v.
Koota, 389 U.S. 241, 249-250, 88 S.Ct. 391,
396-397, 19 L. Ed.2d 4~.~. (1967); Thornhill v.
Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.
1093 (1940), and where such conduct has required
official approval under laws that delegated
standardless discretionary power to local
functionaries, resulting in virtually unreviewable
prior restraints on First Amendment rights. See
Shuttlesworth v. Birmingham, 394 U.S. 147, 89
S.Ct. 935, 22 L. Ed.2d 162 (1969); Cox v.
Louisiana, 379 U.S. 536, 553-558, 85 S.Ct. 453,
463-466, 13 L.Ed.2d 471 (1965); Kunz v. New
York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280
(1951); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct.
666, 82 L.Ed. 949 (1938)." Broadrick v.
Oklahoma, 413 U.S. 601,612-613, 93 S.Ct. 2908,
2916, 37 L.Ed.2d 830.
FN18. Reasonable regulations of the time, place,
and manner of protected speech, where those
regulations are necessary to further significant
governmental interests, are permitted by the First
Amendment. See, E. g., Kovacs v. Cooper, 336
U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (limitation on
use of sound trucks); Cox v. Louisiana, 379 U.S.
559, 85 S.Ct. 476, 13 L.Ed.2d 487 (ban on
demonstrations in or near a courthouse with the
intent to obstruct justice); Grayned v. City of
Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33
L.Ed.2d 222 (ban on willful making, on grounds
adjacent to a school, of any noise which disturbs
the good order of the school session).
FN23. See Bond v. Floyd, 385 U.S. 116, 133-134,
87 S.Ct. 339, 348, 17 L.Ed.2d 235; Harisiades v.
Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512,
520, 96 L.Ed. 586; Musser v. Utah, 333 U.S. 95,
99-101, 68 S.Ct. 397, 398-399, 92 L. Ed. 562.
FN24. In Chaplinsky v. New Hampshire, 315 U.S.
568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031, we
held that a statute punishing the use of "damned
racketeer(s)' and "damned Fascist(s)" did not
unduly impair liberty of expression.
FN25. "Actual malice" is shown by proof that a
statement was made "with knowledge that it was
false or with reckless disregard of whether it was
false or not." 376 U.S., at 280, 84 S.Ct., at 726.
FN26. See, for example, the discussion of the"
'public or general interest' test" for determining
the applicability of the New York Times standard
in Gertz v. Robert Welch, Inc., 418 U.S. 323,
346, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, and
the reference, Id., at 348, 94 S.Ct., at 3011, to a
factual misstatement "whose content did not warn a
reasonably prudent editor or broadcaster of its
defamatory potential." The mere fact that an
alleged defamatory statement is false does not, of
course, place it completely beyond the protection
of the First Amendment. "The First Amendment
requires that we protect some falsehood in order to
protect speech that matters." Id., at 341, 94 S.Ct.
at 3007.
FN27. Thus, Professor Kalven wrote in The
Concept of the Public Forum: Cox v. Louisiana,
1965 Sup. Ct. Rev. 1, 29:
FN19. S. Tallentrye, The Friends of Voltaire 199
(1907).
FN20. See Hague v. CIO, 307 U.S. 496, 516, 59
S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of
Roberts, J.).
FN21. Terminiello v. Chicago, 337 U.S. 1, 4, 69
S.Ct. 894, 895, 93 L.Ed. 1131.
*2465_ FN22. See E. g., Kastigar v. United States,
406 U.S. 441,454-455, 92 S.Ct. 1653, 1661-1662,
32 L. Ed.2d 212; United Gas Imp. Co. v.
Continental Oil Co., 381 U.S. 392, 404, 85 S.Ct.
1517, 1524, 14 L.Ed.2d 466.
"(The Equal Protection Clause) is likely to provide
a second line of defense for vigorous users of the
public forum. If some groups are exempted from a
prohibition on parades and pickets, the rationale
for regulation is fatally impeached. The objection
can then no longer be keyed to interferences with
other uses of the public places, but would appear to
implicate the kind of message that the groups were
transmitting. The regulation would thus slip from
the neutrality of time, place, and circumstance into
a concern about content. The result is that equal-
protection analysis in the area of speech issues
would merge with considerations of censorship.
And this is precisely what Mr. Justice Black
argued in Cox:
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"'But by specifically permitting picketing for the
publication of labor union views, Louisiana is
attempting to pick and choose among the views it is
willing to have discussed on its streets. It is thus
trying to prescribe by law what matters of public
interest people it allows to assemble on its streets
may and may not discuss. This seems to me to be
censorship in a most odious form... ' (379 U.S.,
at 581, 85 S.Ct., at 453). '
FN28. Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. 748, 96 S.Ct. 1817,
48 L.Ed.2d 346.
FN29. Lehman v. City of Shaker Heights, 418 U.S.
298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (product
advertising accepted, while political cards
rejected).
FN30. Markham Advertising Co. v. State, 73
Wash.2d 405, 439 P.2d 248 (1968), appeal
dismissed for want of a substantial federal
question, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d
512.
FN31. In NLRB v. Gissel Packing Co., 395 U.S.
575, 617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547,
the Court upheld a federal statute which balanced
an employer's free speech right to communicate
with his employees against the employees' rights to
associate freely by providing that the expression of
"'any views, argument, or opinion' "should not
be ' 'evidence of an unfair labor practice,' ' So
long as such expression contains ' 'no threat of
reprisal or force or promise of benefit' "which
would involve interference, restraint, or coercion
of employees in the exercise of their right to self-
organization.
The power of the Federal Trade Commission to
restrain misleading, as well as false, statements in
labels and advertisements has long been
recognized. See, E. g., Jacob Siegel Co. v. FTC,
327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888; FTC
v. National Comm'n on Egg Nutrition, 517 F.2d
485 (CA7 1975); E. F. Drew & Co. v. FTC, 235
F.2d 735, 740 (CA2 1956).
*2465_ FN32. As Mr. Justice Stewart pointed out in
Virginia Pharmacy Board v. Virginia Consumer
Council, supra, 425 U.S., at 779, 96 S.Ct., at
1834 (concurring opinion), the "differences
between commercial price and product advertising
and ideological communication" permits
regulation of the former that the First Amendment
would not tolerate with respect to the latter.
FN33. In Paris Adult Theatre I v. Slaton, 413 U.S.
49, 73, 93 S.Ct. 2628, 2665, 37 L.Ed.2d 446, Mr.
Justice Brennan, in a dissent joined by Mr. Justice
Stewart and Mr. Justice Marshall, explained his
approach to the difficult problem of obscenity
under the First Amendment:
"I would hold, therefore, that at least in the
absence of distribution to juveniles or obtrusive
exposure to unconsenting adults, the First and
Fourteenth Amendments prohibit the State and
Federal Governments from attempting wholly to
suppress sexually oriented materials on the basis of
their allegedly 'obscene' contents. Nothing in this
approach precludes those governments from taking
action to serve what may be strong and legitimate
interests through regulation of the manner of
distribution of sexually oriented material.' Id., at
113, 93 S.Ct., at 2662.
FN34. The Common Council's determination was
that a concentration of "adult" movie theaters
causes the area to deteriorate and become a focus
of crime, effects which are not attributable to
theaters showing other types of films. It is this
secondary effect which these zoning ordinances
attempt to avoid, not the dissemination of
"offensive" speech. In contrast, in Erznoznik v.
City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268,
45 L.Ed.2d 125, the justifications offered by the
city rested primarily on the city's interest in
protecting its citizens from exposure to unwanted,
"offensive" speech. The only secondary effect
relied on to support that ordinance was the impact
on traffic an effect which might be caused by a
distracting open-air movie even if it did not exhibit
nudity.
FN35. The situation would be quite different if the
ordinance had the effect of suppressing, or greatly
restricting access to, lawful speech. Here,
however, the District Court specifically found that
"(t)he Ordinances do not affect the operation of
existing establishments but only the location of new
ones. There are myriad locations in the City of
Detroit which must be over 1000 feet from existing
regulated establishments. This burden on First
Amendment rights is slight." 373 F.Supp., at 370.
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It should also be noted that the definitions of
"Specified Sexual Activities~ and "Specified
Anatomical Areas~ in the zoning ordinances, which
require an emphasis on such matter and primarily
concern conduct, are much more limited than the
terms of the public nuisance ordinance involved in
Erznoznik, supra, which broadly prohibited scenes
which could not be deemed inappropriate even for
juveniles.
"The ordinance is not directed against sexually
explicit nudity, nor is it otherwise limited. Rather,
it sweepingly forbids display of all films containing
Any uncovered buttocks or breasts, irrespective of
context or pervasiveness. Thus it would bar a film
containing a picture of a baby's buttocks, the nude
body of a war victim, or scenes from a culture in
which nudity is indigenous. The ordinance also
might prohibit newsreel scenes of the opening of an
art exhibit as well as shots of bathers on a beach.
Clearly all nudity cannot be deemed obscene even
as to minors. See Ginsberg v. New York, supra.
Nor can such a broad restriction be justified by any
other governmental interest pertaining to minors.
Speech that is neither obscene as to youths nor
subject to some other legitimate proscription cannot
be suppressed solely to protect the young from
ideas or images that a legislative body thinks
unsuitable for them." 422 U.S., at 213-214, 95
S.Ct., at 2274.
Moreover, unlike the ordinances in this case, the
Erznoznik ordinance singled out movies
"containing even the most fleeting and innocent
glimpses of nudity .... "Id., at 214, 95 S.Ct., at
2275.
The Court's opinion in Erznoznik presaged our
holding today by noting that the presumption of
statutory validity "has less force when a
classification turns on the subject matter of
expression." Id., at 215, 95 S.Ct., at 2275.
Respondents' position is that the presumption has
no force, or more precisely, that any classification
based on subject matter is absolutely prohibited.
*2465 FN1. I do not think we need reach, nor am I
inclined to agree with, the holding in Part III (and
supporting discussion) that nonobscene, erotic
materials may be treated differently under First
Amendment principles from other forms of
protected expression. I do not consider the
conclusions in Part I of the opinion to depend on
distinctions between protected speech.
FN2. The communication involved here is not a
kind in which the content or effectiveness of the
message depends in some measure upon where or
how it is conveyed. Cf. Cox v. Louisiana, 379
U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965);
Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719,
15 L.Ed.2d 637 (1966); Police Dept. of Chicago v.
Mosley, supra, 408 U.S. 92, 93, 92 S.Ct. 2286,
2288, 33 L.Ed.2d 212 (1972).
There is no suggestion that the Nortown is, or that
the Pussy Cat would be, anything more than a
commercial purveyor. They do not profess to
convey their own personal messages through the
movies they show, so that the only communication
involved is that contained in the movies
themselves. Cf. United States v. O'Brien, 391
U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d
672 (1968); Spencev. Washington, 418 U.S. 405,
409-411, 94 S.Ct. 2727, 2729-2730, 41 L.Ed.2d
842 (1974).
FN3. The burden, it should be noted, is no different
from that imposed by more common ordinances
that restrict to commercial zones of a city movie
theaters generally as well as other types of
businesses presenting similar traffic, parking,
safety, or noise problems. After a half century of
sustaining traditional zoning of this kind, there is
no reason to believe this Court would invalidate
such an ordinance as violative of the First
Amendment. The only difference between such an
ordinance and the Detroit ordinance lies in the
reasons for regulating the location of adult theaters.
The special public interest that supports this
ordinance is certainly as substantial as the interests
that support the normal area zoning to which all
movie theaters, like other commercial
establishments, long have been subject.
FN4. Respondents attack the nature of the evidence
upon which the Common Council acted in bringing
adult entertainment establishments under the
ordinance, and which petitioners submitted to the
District Court in support of it. That evidence
consisted of reports and affidavits from sociologists
and urban planning experts, as well as some
laymen, on the cycle of decay that had been started
in areas of other cities, and that could be expected
in Detroit, from the influx and concentration of
such establishments. Respondents insist that a
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major part of that cycle is a kind of "self-fulfilling
prophecy" in which a business establishment
neighboring on several of the "regulated uses"
perceives that the area is going downhill
economically, and moves out, with the result that a
less desirable establishment takes its place thus
fulfilling the prophecy made by the more reputable
business. As noted earlier, Supra, at 2454,
respondents have tried to analogize these types of
fears to the apprehension found insufficient in
previous cases to justify stifling free expression.
But cases like Cox and Terminiello, upon which
respondents rely, involved individuals desiring to
express Their own messages rather than
commercial exhibitors of films or vendors of
books. When an individual or a group of
individuals is silenced, the message itself is
silenced and free speech is stifled. In the context
of movies and books, the more apt analogy to Cox
or Terminiello would be the censorship cases, in
which a State or a municipality attempted to
suppress copies of particular works, or the
licensing cases in which that danger was presented.
But a zoning ordinance that merely specifies where
a theater may locate, and that does not reduce
significantly the number or accessibility of theaters
presenting particular f'rims, stifles no expression.
Moreover, the Common Council did not inversely
zone adult theaters in an effort to protect citizens
against the Content of adult movies. If that had
been its purpose, or the effect of the amendment to
the ordinance, the case might be analogous to those
cited by Mr. Justice STEWART's dissent, Post, at
2459. Moreover, an intent or purpose to restrict
the communication itself because of its nature
would make the O'Brien test inapplicable. See
O'Brien, 391 U.S., at 382, 88 S.Ct., at 1681;
Spence v. Washington, 418 U.S., at 414 n. 8, 94
S.Ct., at 2732; cf. Stromberg v. California, 283
U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).
But the Common Council simply acted to protect
the economic integrity of large areas of its city
against the effects of a predictable interaction
between a concentration of certain businesses and
the responses of people in the area. If it had been
concerned with restricting the message purveyed
by adult theaters, it would have tried to close them
or restrict their number rather than circumscribe
their choice as to location.
*2465_ FN5. Respondents have argued that the
Common Council should have restricted adult
theaters' hours of operation or their exterior
advertising instead of refusing to allow their
clustering with other "regulated uses." Most of the
ill effects, however, appear to result from the
clustering itself rather than the operational
characteristics of individual theaters. Moreover,
the ordinance permits an exception to its 1,000-foot
restriction in appropriate cases. See Ante, at 2444
n. 7.
FN6. In my view Mr. Justice STEWART's dissent
misconceives the issue in this case by insisting that
it involves an impermissible time, place, and
manner restriction based on the content of
expression. It involves nothing of the kind. We
have here merely a decision by the city to treat
certain movie theaters differently because they
have markedly different effects upon their
surroundings. See n. 3, Supra. Moreover, even if
this were a case involving a special governmental
response to the content of one type of movie, it is
possible that the result would be supported by a
line of cases recognizing that the government can
tailor its reaction to different types of speech
according to the degree to which its special and
overriding interests are implicated. See, E. g.,
Tinker v. Des Moines School Dist., 393 U.S. 503,
509-511, 89 S.Ct. 733, 737-739, 21 L.Ed.2d 731
(1969); Procunier v. Martinez, 416 U.S. 396,
413-414, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224
(1974); Greet v. Spock, 424 U.S. 828, 842-844,
96 S.Ct. 1211, 1219-1220, 47 L.Ed.2d 505 (1976)
(Powell, J., concurring); cf. CSC v. Letter
Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37
L.Ed.2d 796 (1973). It is not analogous to Police
Dept. of Chicago v. Mosley, 408 U.S. 92, 92
S.Ct. 2286, 33 L.Ed.2d 212 (1972), in which no
governmental interest justified a distinction
between the types of messages permitted in the
public forum there involved.
FN1. Contrast Village of Belle Terre v. Boraas, 416
U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, which
upheld a zoning ordinance that restricted no
substantive right guaranteed by the Constitution.
FN2. Here, as in Police Dept. of Chicago v.
Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d
212, and Erznoznik v. City of Jacksonville, 422
U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, the
State seeks to impose a selective restraint on
speech with a particular content. It is not all
movie theaters which must comply with
Ordinances No. 742-G and No. 743-G, but only
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those "used for presenting material distinguished or
characterized by an emphasis on matter depicting,
describing or relating to 'Specified Sexual
Activities' or 'Specified Anatomical Areas' . . . ."
The ordinances thus ~ 'sli(p) from the neutrality of
time, place, and circumstance into a concern about
content.' This is never permitted." Police Dept.
of Chicago v. Mosley, supra, 408 U.S., at 99, 92
S.Ct., at 2292 (citation omitted). See, E. g.,
Hudgeus v. NLRB, 424 U.S. 507, 520, 96 S.Ct.
1029, 1037, 47 L.Ed.2d 196; Grayned v. City of
Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294,
2302, 33 L. Ed.2d 222.
FN3. The regulatory scheme contains no provision
for a judicial determination of obscenity. As the
Court of Appeals correctly held, the material
displayed must therefore, be presumed to be fully
protected by the First Amendment. 518 F.2d 1014,
1019.
FN4. See, E. g., Terminiello v. Chicago, 337 U.S.
1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131.
FN5. See, E. g., Hudgeus v. NLRB, supra;
Erznoznik v. City of Jacksonville, supra; Police
Dept. of Chicago v. Mosley, supra. This case
does not involve state regulation narrowly aimed at
preventing objectionable communication from
being thrust upon an unwilling audience. See
Erznoznik v. City of Jacksonville, supra, 422
U.S., at 209, 95 S.Ct., at 2272. Contrast Lehman
v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct.
2714, 41 L.Ed.2d 770; Rowan v. Post Office
Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d
736. Nor is the Detroit ordinance narrowly aimed
at protecting children from exposure to sexually
oriented displays that would not be judged obscene
by adult standards. Contrast Ginsberg v. New
York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d
195.
*2465_ FN6. See, E. g., Terminiello v. Chicago,
supra, 337 U.S., at 4-5, 69 S.Ct., at 895-896. The
Court stresses that Detroit's content-based
regulatory system does not preclude altogether the
display of sexually oriented films. But, as the
Court noted in a similar context in Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 95
S.Ct. 1239, 43 L. Ed.2d 448, this is constitutionally
irrelevant, for ~ 'one is not to have the exercise of
his liberty of expression in appropriate places
abridged on the plea that it may be exercised in
some other place.'" Id., at 556, 95 S.Ct., at
1245, quoting Schneider v. State, 308 U.S. 147,
163, 60 S.Ct. 146, 151, 84 L.Ed. 155. See also
Interstate Circuit v. Dallas, 390 U.S. 676, 88
S.Ct. 1298, 20 L.Ed.2d 225; Bantam Books, Inc.
v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d
584.
FN1. See Ante, 2443-2445, and nn. 3-7. I
reproduce, or cite specifically to, only those
sections of the challenged ordinance that are not set
out in the Court's opinion.
FN2. Official Zoning Ordinance of Detroit s
69.000.
FN3. A special opportunity for arbitrary or
discriminatory application of the ordinance is
apparently supplied by the operation of the
1,000-foot rule. Presumably, only one of three
"regulated uses" within a 1,000-foot area must be
eliminated in order for the remaining two to
become legal. For all that appears from the
ordinance, the choice of which use to eliminate is
left entirely to the enforcement authorities.
FN4. These two features of the ordinance constitute
prior restraints and are challengeable on that
ground alone. Cf. Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43
L.Ed.2d 448 (1975). Since, for me, the most
glaring defect in the operation of these restraints is
the vagueness of the standards governing their
applications, however, only the vagueness point is
pursued here.
FN5. The ordinance empowers the mayor to act
"upon proof submitted to him of (a) violation." It
is possible that he may entertain evidence not only
of convictions but also of violations themselves,
even though these have not been otherwise
adjudicated. Whether legal infractions must be
otherwise adjudicated or not, the mayor clearly
retains the power to revoke a license for "flagrant
disregard," should infractions occur at any time
after the license's issuance.
FN6. Interstate Circuit disposes of any argument
that excessively vague standards may be permitted
here because the film exhibitions are not banned
entirely, but merely prohibited in a particular
place. The ordinance invalidated in Interstate
Circuit required exhibitors to submit films for
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official determination whether persons under 16
should be excluded from the film exhibitions. It
thus threatened the exhibitor with a loss of only
part of his audience. The effect of the present
ordinance is more severe, since if the exhibitor has
only one theater, he is completely foreclosed. See
also Southeastern Promotions, Ltd. v. Conrad, 420
U.S., at 556 n. 8, 95 S.Ct., at 1245.
FN7. In Erznoznik v. City of Jacksonville, 422 U.S.
205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), the
case on which the Court relies for the proposition
that only statutes having a "significant deterrent
effect" may be facially challenged, such an effect
in fact was found to exist. The ordinance there at
issue prohibited drive-in theaters from exhibiting
films in which nude parts of the human body would
be "visible from any public street or public place."
We perceived a "real and substantial" deterrent
effect in the "unwelcome choice" to which the
ordinance put exhibitors: "either (to) restrict their
movie offerings or construct adequate protective
fencing which may be extremely expensive or even
physically impracticable, n Id., at 217, 95 S.Ct., at
2277. In the present case the second horn of the
dilemma is even sharper: the construction (or
acquisition) of an entirely new theater.
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Page 1
*2456 111 S.Ct. 2456
501 U.S. 560, 115 L.Ed.2d 504, 59 USLW
4745
Michael BARNES, Prosecuting Attorney of
St. Joseph County, Indiana, et al.
V.
GLEN THEATRE, INC., et al.
No. 90-26.
Supreme Court of the United States
Argued Jan. 8, 1991.
Decided June 21, 1991.
Establishments wishing to provide totally nude
dancing as entertainment and individual dancers
employed at establishments brought suit to enjoin
enforcement of Indiana public indecency statute
which required dancers to wear pasties and a G-
string, asserting that statute violated the First
Amendment. The United States District Court for
the Northern District of Indiana, 726 F.Supp. 728,
permanently enjoined enforcement. The Court of
Appeals for the Seventh Circuit, 802 F.2d 287,
reversed and remanded. On remand, the District
Court, 695 F.Supp. 414, found that nude dancing in
question was not protected by the First Amendment.
On appeal, the Court of Appeals, 887 F.2d 826,
reversed and remanded. Opinion was vacated and
rehearing en banc granted. The Court of Appeals,
904 F.2d 1081, reversed. After granting certiorari,
the Supreme Court, Chief Justice Rehnquist, held
that enforcement of public indecency statute to
require that dancers at adult entertainment
establishments wear pasties and a G-string did not
violate the First Amendment.
Reversed.
Justices Scalia and Souter filed opinions concurring
in the judgment.
Justice White flied dissenting opinion, in which
Justices Marshall, Blackmun, and Stevens joined.
1. CONSTITUTIONAL LAW.m, 90.4(3)
92 ....
92V Personal, Civil and Political Rights
921090 Freedom of Speech and of the Press
92k90.4 ~Obscenity and Pornography
92k90.4(3) ~ Entertainment in general;
teleeCmmunicatious.
[See headnote text below]
CONSTITUTIONAL LAW~:~ 90.4(5)
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.4 Obscenity and Pornography
92k90.4(5) Bars, nightclubs, and restaurants.
U.S.Ind. 1991.
Totally nude dancing as sought to be performed in
lounge presenting "go-go dancing,' and in adult
~bookstore," was expressive conduct within the
outer perimeters of the First Amendment, although
only marginally so. (Per Chief Justice Relmquist,
with two Justices concurring, and two Justices
concurring in the judgment.) U.S.C.A.
Coast. Amend. 1.
2. CONSTITUTIONAL LAW~g:~ 90(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90(3) Limitations on doctrine in general.
U.S.Ind. 1991.
Government regulation of expressive conduct is
sufficiently justified if it is within the constitutional
power of the government, if it furthers an importal~
or substantial governmental interest, if th4
governmental interest is unrelated to suppression of
free expression, and if the incidental restriction on
alleged First Amendment freedoms is not greater
than is essential to furtherance of that interest. (Per
Chief Justice Relmquist, with two Justices
concurring, and two Justices concurring in the
judgment.) U.S.C.A. Const. Amend. 1.
3. CONSTITUTIONAL LAW,g=~ 90.4(3)
92 ....
92V Personal, Civil and Political Rights
92k90 Freedom of Speech and of the Press
92k90.4 Obscenity and Pornography
92k90.4(3) Entertainment in general;
telecommunications.
[See headnote text below]
3. OBSCENITY~=, 2.5
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281 ....
281k2 Power to Regulate; Statutory and Local
Regulations
281k2.5 Particular regulations.
U.S.Ind. 1991.
Enforcement of Indiana's public indecency law to
require nude dancers in adult entertainment
establishments to wear pasties and any G-string did
not violate the First Amendment's guarantee of
freedom of expression; statute was clearly within
state's constitutional power, it furthered substantial
governmental interest in protecting societal order
and morality, governmental interest was unrelated to
suppression of free expression, and incidental
restriction on First Amendment freedom was no
greater than was essential to furtherance of the
governmental interest. (Per Chief Justice Rehnquist,
with two Justices concurring, and two Justices
concurring in the judgment.) West's A.I.C.
35-45-4-1; U.S.C.A. Const. Amend. 1.
*2457 Syllabus (FN*)
Respondents, two Indiana establishments wishing
to provide totally nude dancing as entertainment and
individual dancers employed at those establishments,
brought suit in the District Court to enjoin
enforcement of the state public indecency law--
which requires respondent dancers to wear pasties
and G-strings--asserting that the law's prohibition
against total nudity in public places violates the First
Amendment. The court held that the nude dancing
involved here was not expressive conduct. The
Court of Appeals reversed, ruling that nonobscene
nude dancing performed for entertainment is
protected expression, and that the statute was an
improper infringement of that activity because its
purpose was to prevent the message of eroticism and
sexuality conveyed by the dancers.
Held: The judgment is reversed.
904 F.2d 1081 (CA9 1990), reversed.
The Chief Justice, joined by Justice O'CONNOR
and Justice KENNEDY, concluded that the
enforcement of Indiana's public indecency law to
prevent totally nude dancing does not violate the
First Amendment's guarantee of freedom of
expression. Pp. 2460-2463.
(a) Nude dancing of the kind sought to be
performed here is expressive conduct within the
outer perimeters of the First Amendment, although
only marginally so. See, e.g., Doran v. Salem Inn,
Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45
L.Ed.2d 648. P. 2460.
/
(b) Applying the four-pm test of United States v.xf
O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673,
1678-1679, 20 L.Ed.2d 672--which rejected the
contention that symbolic speech is entitled to full
First Amendment protection--the statute is justified
despite its incidental limitations on some expressive
activity. The law is clearly within the State's
constitutional power. And it furthers a substantial
governmental interest in protecting societal order
and morality. Public indecency statutes reflect
moral disapproval of people appearing in the nude
among strangers in public places, and this particular
law follows a line of state laws, dating back to I831,
banning public nudity. The States' traditional police
power is defined as the authority to provide for the
public health, safety, and morals, and such a basis
for legislation [501 U.S. 561] has been upheld. See,
e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49,
61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446. This
governmental interest is urn'elated to the suppression
of free expression, since public nudity is the evil the
State seeks to prevent, whether or not it is combined
with expressive activity. The law does not proscribe
nudity in these establishments because the dancers
are conveying an erotic message. To the contrary,
an erotic performance may be presented without
*2458 any state interference, so long as the
performers wear a scant amount of clothing.
Finally, the incidental restriction on First
Amendment freedom is no greater than is essential
to the furtherance of the governmental interest.
Since the statutory prohibition is not a means to
some greater end, but an end itself, it is without
cavil that the statute is narrowly tailored. Pp.
2460-2463.
Justice SCALIA concluded that the statute--as a
general law regulating conduct and not specifically
directed at expression, either in practice or on its
face--is not subject to normal First Amendment
scrutiny and should be upheld on the ground that
moral opposition to nudity supplies a rational basis
for its prohibition. Cf. Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872,
110 S.Ct. 1595, 108 L.Ed.2d 876. There is no
intermediate level of scrutiny requiring that an
incidental restriction on expression, such as that
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involved here, be justified by an important or
substantial governmental interest. Pp. 2463-2467.
Justice SOUTER, agreeing that the nude dancing at
issue here is subject to a degree of First Amendment
protection, and that the test of United States v.
O'Brien, 391 U.S. 367, 88 S.Ct. 1673, is the
appropriate analysis to determine the actual
protection required, concluded that the State's
interest in preventing the secondary effects of adult
entertainment establishments--prostitution, sexual
assaults, and other criminal activity--is sufficient
under O'Brien to justify the law's enforcement
against nude dancing. The prevention of such
effects clearly falls within the State's constitutional
power. In addition, the asserted interest is plainly
substantial, and the State could have concluded that
it is furthered by a prohibition on nude dancing,
even without localized proof of the harmful effects.
See Renton v. Playtime Theatres, Inc., 475 U.S. 41,
50, 51, 106 S.Ct. 925, 930, 930, 89 L. Ed.2d 29.
Moreover, the interest is unrelated to the
suppression of free expression, since the pernicious
effects are merely associated with nude dancing
establishments and are not the result of the
expression inherent in nude dancing. Id., at 48, 106
S.Ct., at 929. Finally, the restriction is no greater
than is essential to further the governmental interest,
since pasties and a G-string moderate expression to a
minor degree when measured against the dancer's
remaining capacity and opportunity to express an
erotic message. Pp. 2468-2471.
*Briefs of amici curiae urging reversal were filed
for the State of Arizona et al. by Robert K. Corbin,
Attorney General of Arizona, and Steven J. Twist,
Chief Assistant Attorney General, Clarine Nardi
Riddle, Attorney General of Connecticut, and John
J. Kelly, Chief State's Attorney, William L.
Webster, Attorney General of Missouri, Lacy H.
Thornburg, Attorney General of North Carolina, and
Rosalie Simmonds Ballentine, Acting Attorney
General of the Virgin Islands; for the American
Family Association, Inc., et al. by Alan E. Sears,
James Mueller, and Peggy M. Coleman; and for the
National Governors' Association et al. by Benna
Ruth Solomon and Peter Buscemi.
Briefs of amici curiae urging affirmance were filed
for the American Civil Liberties Union et al. by
Spencer Neth, Thomas D. Buckley, Jr., Steven R.
Shapiro, and John A. Powell; for the Georgia on
Premise & Lounge Association, Inc., by James A.
Walrath; for People for the American Way et al. by
Timothy B. Dyk, Robert H. Klonoff, Patricia A.
Dunn, Elliot M. Mincberg, Stephen F. RoMe, and
Mary D. Dorman.
James J. Clancy filed a brief pro se as amicus
curiae.
Wayne E. Uhl, Indianapolis, Ind., for petitioners.
Bruce J. Eunis, Jr., Washington, D.C., for
respondents.
[501 U.S. 562] REHNQUIST, C.J., announced the
judgment of the Court and delivered an opinion, in
which O'CONNOR and KENNEDY, JJ., joined.
SCALIA, J., post, p. 2463, and SOUTER, J., post,
p. 2468, Fried opinions concurring in the judgment.
WHITE, J., filed a dissenting opinion, in which
MARSHALL, BLACKMUN, and STEVENS, JJ.,
joined, post, p. 2471.
Wayne E. Uhl, Deputy Attorney General of
Indiana, argued the cause for petitioners. With him
on the briefs was Linley E. Pearson, Attorney
General.
For U.S. Supreme Court Briefs See:
1990 WL 505542 (Pet. Brief)
1990 WL 505543 (Resp. Brief)
1990 WL 505544 (Resp. Brief)
1991 WL 521274 (Reply. Brief)
For Transcript of Oral Argument See:
1991 WL 636544 (U.S.Oral.Arg.)
Bruce J. Ennis, Jr., argued the cause for
respondents. Lee J. Klein and Bradley J. Shafer
filed a brief for respondents Glen Theatre, Inc., et
al. Patrick Louis Baude and Charles A. Asher filed a
brief for respondents Darlene Miller et al.*
Chief Justice REHNQUIST delivered the opinion
of the Court.
Respondents are two establishments in South Bend,
Indiana, that wish to provide totally nude dancing as
entertainment, and individual dancers who are
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employed at these [501 U.S. 563] establishments.
They claim that the First Amendment's guarantee of
freedom of expression prevents the State of Indiana
from enforcing its public indecency law to prevent
this form of dancing. We reject their claim.
The facts appear from the pleadings and fmdings of
the District Court and are uncontested here. The
Kitty Kat Lounge, Inc. (Kitty Kat), is located in the
city of South Bend. It sells alcoholic beverages and
presents ~go-go dancing." Its proprietor desires to
present *totally nude dancing," but an applicable
Indiana statute regulating public nudity requires that
the dancers wear 'pasties~ *2459 and ~G-strings~
when they dance. The dancers are not paid an
hourly wage, but work on commission. They
receive a 100 percent commission on the first $60 in
drink sales during their performances. Darlene
Miller, one of the respondents in the action, had
worked at the Kitty Kat for about two years at the
time this action was brought. Miller wishes to
dance nude because she believes she would make
more money doing so.
Respondent Glen Theatre, Inc., is an Indiana
corporation with a place of business in South Bend.
Its primary business is supplying so-called adult
entertainment through written and printed materials,
movie showings, and live entertainment at an
enclosed "bookstore." The live entertainment at the
"bookstore ~ consists of nude and seminude
performances and showings of the female body
through glass panels. Customers sit in a booth and
insert coins into a timing mechanism that permits
them to observe the live nude and seminude dancers
for a period of time. One of Glen Theatre's
dancers, Gayle Ann Marie Sutro, has danced,
modeled, and acted professionally for more than 15
years, and in addition to her performances at the
Glen Theatre, can be seen in a pornographic movie
at a nearby theater. App. to Pet. for Cert. 131-133.
Respondents sued in the United States District
Court for the Northern District of Indiana to enjoin
the enforcement of the Indiana public indecency
statute, Ind. Code§ 35-45-4-1 [501 U.S. 564]
(1988), asserting that its prohibition against
complete nudity in public places violated the First
Amendment. The District Court originally granted
respondents' prayer for an injunction, finding that
the statute was facially overbroad. The Court of
Appeals for the Seventh Circuit reversed, deciding
that previous litigation with respect to the statute in
the Supreme Court of Indiana and this Court
precluded the possibility of such a challenge, (FN1)
and remanded to the District Court in order for the
plaintiffs to pursue their claim that the statute
violated the First Amendment as applied to their
dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d
287, 288-290 (1986). On remand, the District
Court concluded that [501 U.S. 565] ~the type of
dancing these plaintiffs wish to perform is not
expressive activity protected by the Constitution of
the United States," and rendered judgment in favor
of the defendants. Glen Theatre, Inc. v. Civil City
of South Bend, 695 F.Supp. 414, 419 (1988). The
case was again appealed to the Seventh Circuit, and
a panel of that court reversed the District Court,
holding that the nude dancing involved here was
expressive conduct protected by the First
Amendment. *2460 Miller v. Civil City of South
Bend, 887 F.2d 826 (1989). The Court of Appeals
then heard the case en bane, and the court rendered
a series of comprehensive and thoughtful opinions.
The majority concluded that nonobscene nude
dancing performed for entertainment is expression
protected by the First Amendment, and that the
public indecency statute was an improper
infringement of that expressive activity because its
purpose was to prevent the message of eroticism and
sexuality conveyed by the dancers. Miller v. Civil
City of South Bend, 904 F.2d 1081 (1990). We
granted certiorari, 498 U.S. 807, 111 S.Ct. 38, 112
L.Ed.2d 15 (1990), and now hold that the Indiana
statutory requirement that the dancers in the
establishments involved in this case must wear
pasties and G-strings does not violate the First
Amendment.
[1] Several of our cases contain language
suggesting that nude dancing of the kind involved
here is expressive conduct protected by the First
Amendment. In Doran v. Salem Inn, Inc., 422 U.S.
922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648
(1975), we said: "[A]lthough the customary
'barroom' type of nude dancing may involve only
the barest minimum of protected expression, we
recognized in California v. LaRue, 409 U.S. 109,
118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972),
that this form of entertainment might be entitled to
First and Fourteenth Amendment protection under
some circumstances." In Schad v. Mount Ephraim,
452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d
671 (1981), we said that "[f]urthermore, as the state
courts in this case recognized, nude dancing is not
without its First Amendment protections from
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official regulation" (citations omitted). These
statements support the conclusion of the Court of
Appeals [501 U.S. 566] that nude dancing of the
kind sought to be performed here is expressive
conduct within the outer perimeters of the First
Amendment, though we view it as only marginally
so. This, of course, does not end our inquiry. We
must determine the level of protection to be afforded
to the expressive conduct at issue, and must
determine whether the Indiana statute is an
impermissible infringement of that protected
activity.
Indiana, of course, has not banned nude dancing as
such, but has proscribed public nudity across the
board. The Supreme Court of Indiana has construed
the Indiana statute to preclude nudity in what are
essentially places of public accommodation such as
the Glen Theatre and the Kitty Kat Lounge. In such
places, respondents point out, minors are excluded
and there are no nonconsenting viewers.
Respondents contend that while the State may
license establishments such as the ones involved
here, and limit the geographical area in which they
do business, it may not in any way limit the
performance of the dances within them without
violating the First Amendment. The petitioners
contend, on the other hand, that Indiana's restriction
on nude dancing is a valid "time, place, or manner"
restriction under cases such as Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 104 S.Ct.
3065, 82 L.Ed.2d 221 (1984).
The "time, place, or manner" test was developed
for evaluating restrictions on expression taking place
on public property which had been dedicated as a
"public forum,' Ward v. Rock Against Racism, 491
U.S. 781,791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d
661 (1989), although we have on at least one
occasion applied it to conduct occurring on private
property. See Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
In Clark we observed that this test has been
interpreted to embody much the same standards as
those set forth in United States v. O'Brien, 391 U.S.
367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and we
turn, therefore, to the nde enunciated in O'Brien.
[2] O'Brien burned his draft card on the steps of
the South Boston Courthouse in the presence of a
sizable crowd, and [501 U.S. 567] was convicted
'2461 of violating a statute that prohibited the
knowing destruction or mutilation of such a card.
He claimed that his conviction was contrary to the
First Amendment because his act was "symbolic
speech"--expressive conduct. The Court rejected his
contention that symbolic speech is entitled to full
First Amendment protection, saying:
"[E]ven on the assumption that the alleged
communicative element in O'Brien's conduct is
sufficient to bring into play the First Amendment,
it does not necessarily follow that the destruction of
a registration certificate is constitutionally
protected activity. This Court has held that when
'speech' and 'nonspeech' elements are combined in
the same course of conduct, a sufficiently
important governmental interest in regulating the
nonspeech element can justify incidental limitations
on First Amendment freedoms. To characterize
the quality of the governmental interest which must
appear, the Court has employed a variety of
descriptive terms: compelling; substantial;
subordinating; paramount; cogent; strong.
Whatever imprecision inheres in these terms, we
think it clear that a government regulation is
sufficiently justified if it is within the constitutional
power of the Government; if it furthers an
important or substantial governmental interest; if
the governmental interest is unrelated to the
suppression of free expression; and if the
incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest." Id., at 376-377, 88
S.Ct., at 1678-1679 (footnotes omitted).
-I'~ Applying the four-part O'Brien test enunciated
above, we fred that Indiana's public indecency
statute is justified despite its incidental limitations on
some expressive activity. The public indecency
statute is clearly within the constitutional power of
the State and furthers substantial governmental
interests. It is impossible to discern, other than
from the text of the statute, exactly what
governmental interest the Indiana legislators had in
mind when they enacted [501 U.S. 568] this statute,
for Indiana does not record legislative history, and
the State's highest court has not shed additional light
on the statute's purpose. Nonetheless, the statute's
purpose of protecting societal order and morality is
clear from its text and history. Public indecency
statutes of this sort are of ancient origin and
presently exist in at least 47 States. Public
indecency, including nudity, was a criminal offense
at common law, and this Court recognized the
common-law roots of the offense of ~gross and open
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indecency" in Winters v. New York, 333 U.S. 507,
515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948).
Public nudity was considered an act malum in se.
Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036
(K.B.1664). Public indecency statutes such as the
one before us reflect moral disapproval of people
appearing in the nude among strangers in public
places.
This public indecency statute follows a long line of
earlier Indiana statutes banning all public nudity.
The history of Indiana's public indecency statute
shows that it predates barroom nude dancing and
was enacted as a general prohibition. At least as
early as 1831, Indiana had a statute punishing "open
and notorious lewdness, or ... any grossly
scandalous and public indecency." Rev. Laws of
Ind., ch. 26, § 60 (1831); Ind. Rev. Stat., ch. 53, §
81 (1834). A gap during which no statute was in
effect was filled by the Indiana Supreme Court in
Ardery v. State, 56 Ind. 328 (1877), which held that
the court could sustain a conviction for exhibition of
"privates" in the presence of others. The court
traced the offense to the Bible story of Adam and
Eve. Id., at 329-330. In 1881, a statute was
enacted that would remain essentially unchanged for
nearly a century:
"Whoever, being over fourteen years of age,
makes an indecent exposure of his person in a
public place, or in any place where there are other
persons to be offended or annoyed thereby .... is
guilty of *2462 public indecency .... " 1881
Ind. Acts, ch. 37, § 90.
[501 U.S. 569] The language quoted above
remained unchanged until it was simultaneously
repealed and replaced with the present statute in
1976. 1976 Ind. Acts, Pub. L. 148, Art. 45, ch. 4, §
1. (FN2)
This and other public indecency statutes were
designed to protect morals and public order. The
traditional police power of the States is defined as
the authority to provide for the public health, safety,
and morals, and we have upheld such a basis for
legislation. In Paris Adult Theatre I v. Slaton, 413
U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L. Ed.2d 446
(1973), we said:
"In deciding Roth [v. United States, 354 U.S. 476
[77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957) ], this
Court implicitly accepted that a legislature could
legitimately act on such a conclusion to protect 'the
social interest in order and morality.' [Id.], at 485
[77 S.Ct., at 1309]. ' (Emphasis omitted.)
And in Bowers v. Hardwick, 478 U.S. 186, 196,
106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), we
said:
"The law, however, is constantly based on notions
of morality, and if all laws representing essentially
moral choices are to be invalidated under the Due
Process Clause, the courts will be very busy
indeed."
Thus, the public indecency statute furthers a
substantial government interest in protecting order
and morality.
[501 U.S. 570] This interest is unrelated to the
suppression of free expression. Some may view
restricting nudity on moral grounds as necessarily
related to expression. We disagree. It can be
argued, of course, that almost limitless types of
conduct--including appearing in the nude in public--
are "expressive," and in one sense of the word this
is true. People who go about in the nude in public
may be expressing something about themselves by
so doing. But the court rejected this expansive
notion of "expressive conduct" in O'Brien, saying:
"We cannot accept the view that an apparently
limitless variety of conduct can be labeled 'speech'
whenever the person engaging in the conduct
intends thereby to express an idea." 391 U.S., at
376, 88 S.Ct., at 1678.
And in Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct.
1591, 104 L.Ed.2d 18 (1989), we further observed:
"It is possible to find some kernel of expression in
almost every activity a person undertakes--for
example, walking down the street or meeting one's
friends at a shopping mall--but such a kernel is not
sufficient to bring the activity within the protection
of the First Amendment. We think the activity of
these dance-hall patrons coming together to engage
in recreational dancing--is not protected by the
First Amendment." Id., at 25, 109 S.Ct., at 1595.
Respondents contend that even though prohibiting
nudity in public generally may not be related to
suppressing expression, prohibiting the performance
of nude dancing is related to expression because the
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State seeks to prevent its erotic message.
Therefore, they reason that the application of the
Indiana statute to the nude dancing in this case
violates the First Amendment, because it fails the
third part of the O'Brien test, viz: *2463 the
governmental interest must be unrelated to the
suppression of free expression.
But we do not think that when Indiana applies its
statute to the nude dancing in these nightclubs it is
proscribing nudity because of the erotic message
conveyed by the dancers. [501 U.S. 571]
Presumably numerous other erotic performances are
presented at these establishments and similar clubs
without any interference from the State, so long as
the performers wear a scant amount of clothing.
Likewise, the requirement that the dancers don
pasties and G-strings does not deprive the dance of
whatever erotic message it conveys; it simply
makes the message slightly less graphic. The
perceived evil that Indiana seeks to address is not
erotic dancing, but public nudity. The appearance
of people of all shapes, sizes and ages in the nude at
a beach, for example, would convey little if any
erotic message, yet the State still seeks to prevent it.
Public nudity is the evil the State seeks to prevent,
whether or not it is combined with expressive
activity.
This conclusion is buttressed by a reference to the
facts of O'Brien. An Act of Congress provided that
anyone who knowingly destroyed a Selective Service
registration certificate committed an offense.
O'Brien burned his certificate on the steps of the
South Boston Courthouse to influence others to
adopt his antiwar beliefs. This Court upheld his
conviction, reasoning that the continued availability
of issued certificates served a legitimate and
substantial purpose in the administration of the
Selective Service System. O'Brien's deliberate
destruction of his certificate frustrated this purpose
and "[f]or this noneommunicative impact of his
conduct, and for nothing else, he was convicted.'
391 U.S., at 382, 88 S.Ct., at 1682. It was
assumed that O'Brien's act in burning the certificate
had a communicative element in it sufficient to bring
into play the First Amendment, id., at 376, 88
S.Ct., at 1682, but it was for the noncommunicative
element that he was prosecuted. So here with the
Indiana statute; while the dancing to which it was
applied had a communicative element, it was not the
dancing that was prohibited, but simply its being
done in the nude.
The fourth part of the O'Brien test requires that the
incidental restriction on First Amendment freedom
be no greater than is essential to the furtherance of
the governmental interest. As indicated in the
discussion above, the [501 U.S. 572] governmental
interest served by the text of the prohibition is
societal disapproval of nudity in public places and
among strangers. The statutory prohibition is not a
means to some greater end, but an end in itself. It
is without cavil that the public indecency statute is
"narrowly tailored"; Indiana's requirement that the
dancers wear at least pasties and G-strings is
modest, and the bare minimum necessary to achieve
the State's purpose.
The judgment of the Court of Appeals accordingly
is
Reversed.
Justice SCALIA, concurring in the judgment.
I agree that the judgment of the Court of Appeals
must be reversed. In my view, however, the
challenged regulation must be upheld, not because it
survives some lower level of First Amendment
scrutiny, but because, as a general law regulating
conduct and not specifically directed at expression,
it is not subject to First Amendment scrutiny at all.
Indiana's public indecency statute provides:
"(a) A person who knowingly or intentionally, in a
public place:
"(1) engages in sexual intercourse;
"(2) engages in deviate sexual conduct;
"(3) appears in a state of nudity; or
~(4) fondles the genitals of himself or another
person;
commits public indecency, a Class A
misdemeanor.
*2464 "(b) 'Nudity' means the showing of the
human male or female genitals, pubic area, or
buttocks with less than a fully opaque covering, the
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showing of the female breast with less than a fully
opaque covering of any part of the nipple, or the
showing of covered male genitals in a discernibly
turgid state." Ind. Code§ 35-45-4-1 (1988).
On its face, this law is not directed at expression in
particular. As Judge Easterbrook put it in his
dissent below: "Indiana[501 U.S. 573] does not
regulate dancing. It regulates public nudity ....
Almost the entire domain of Indiana's statute is
unrelated to expression, unless we view nude
beaches and topless hot dog vendors as speech."
Miller v. Civil City of South Bend, 904 F.2d 1081,
1120 (CA7 1990). The intent to convey a "message
of eroticism" (or any other message) is not a
necessary element of the statutory offense of public
indecency; nor does one commit that statutory
offense by conveying the most explicit "message of
eroticism," so long as he does not commit any of the
four specified acts in the process. (FN1)
Indiana's statute is in the line of a long tradition of
laws against public nudity, which have never been
thought to mn afoul of traditional understanding of
"the freedom of speech." Public indecency--
including public nudity--has long been an offense at
common law. See 50 Am.Jur.2d, Lewdness,
Indecency, and Obscenity 449, 472-474 (1970);
Annot., Criminal offense predicated on indecent
exposure, 93 A.L.R. 996, 997-998 (1934); Winters
v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670,
92 L. Ed. 840 (1948). Indiana's first public nudity
statute, Rev. Laws of Ind., ch. 26, § 60 (1831),
predated by many years the appearance of nude
barroom dancing. It was general in scope, directed
at all public nudity, and not just at public nude
expression; and all succeeding statutes, down to [
501 U.S. 574] the present one, have been the same.
Were it the case that Indiana in practice targeted
only expressive nudity, while turning a blind eye to
nude beaches and unclothed purveyors of hot dogs
and machine tools, see Miller, 904 F.2d, at 1120,
1121, it might be said that what posed as a
regulation of conduct in general was in reality a
regulation of only communicative conduct.
Respondents have adduced no evidence of that.
Indiana officials have brought many public
indecency prosecutions for activities having no
communicative element. See Bond v. State, 515
N.E.2d 856, 857 (Ind. 1987); In re Levinson, 444
N.E.2d 1175, 1176 (Ind. 1983); Preston v. State,
259 Ind. 353, 354-355, 287 N.E.2d 347, 348 (1972)
; Thomas v. State, 238 Ind. 658, 659-660, 154
N.E.2d 503, 504-505 (1958); Blanton v. State, 533
N.E.2d 190, 191 (Ind. App. 1989); Sweeney v. State,
486 N.E.2d 651,652 (Ind. App. 1985); Thompson v.
State, 482 N.E.2d 1372, 1373-1374 (Ind. App. 1985);
Adims v. State, 461 N.E.2d 740, 741-742
(Ind. App. 1984); State v. Elliott, 435 N.E.2d 302,
304 (Ind.App. 1982); Lasko v. State, 409 N.E.2d
1124, 1126 (Ind. App. 1980). (FN2)
*2465 The dissent confidently asserts, post, at
2473, that the purpose of restricting nudity in public
places in general is to protect nonconsenting parties
from offense; and argues that since only consenting,
admission-paying patrons see respondents dance,
that purpose cannot apply and the only remaining
purpose must relate to the communicative elements
of the performance. Perhaps the dissenters believe
that ~offense to others" ought to be the only reason
for restricting nudity in public places generally, but
there is no [501 U.S. 575] basis for thinking that our
society has ever shared that Thoreauvian 'you - may
- do - what - you - like - so - long - as - it - does -
not - injure - someone -else~ beau ideal--much less
for thinking that it was written into the Constitution.
The purpose of Indiana's nudity law would be
violated, I think, if 60,000 fully consenting adults
crowded into the Hoosier Dome to display their
genitals to one another, even if there were not an
offended innocent in the crowd. Our society
prohibits, and all human societies have prohibited,
certain activities not because they harm others but
because they are considered, in the traditional
phrase, "contra bonos mores," i.e., immoral. In
American society, such prohibitions have included,
for example, sadomasochism, cockfighting,
bestiality, suicide, drug use, prostitution, and
sodomy. While there may be great diversity of view
on whether various of these prohibitions should exist
(though I have found few ready to abandon, in
principle, all of them), there is no doubt that, absent
specific constitutional protection for the conduct
involved, the Constitution does not prohibit them
simply because they regulate "morality." See
Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct.
2841, 2846, 92 L.Ed.2d 140 (1986) (upholding
prohibition of private homosexual sodomy enacted
solely on "the presumed belief of a majority of the
electorate in [the jurisdiction] that homosexual
sodomy is immoral and unacceptable"). See also
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 68, n.
15, 93 S.Ct. 2628, 2641, n. 15, 37 L.Ed.2d 446
(1973); Dronenburg v. Zech, 239 U.S.App. D.C.
229, 238, and n. 6, 741 F.2d 1388, 1397, and n. 6
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(1984) (opinion of Bork, J.). The purpose of the
Indiana statute, as both its text and the manner of its
enforcement demonstrate, is to enforce the
traditional moral belief that people should not
expose their private parts indiscriminately,
regardless of whether those who see them are
disedified. Since that is so, the dissent has no basis
for positing that, where only thoroughly edified
adults are present, the purpose must be repression of
communication. (FN3)
[501 U.S. 576]
II
Since the Indiana regulation is a general law not
specifically targeted at expressive conduct, its
application to such conduct does not in my view
implicate the First Amendment.
The First Amendment explicitly protects "the
freedom of speech [and] of the press"--oral and
written speech--not "expressive conduct." When
any law restricts speech, even for a purpose that has
nothing to do with the suppression of communication
(for instance, to reduce noise, see Saia v. New York,
334 U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed.
1574 (1948), to regulate election campaigns, see
Buckley v. Valeo, 424 U.S. 1, 16, 96 S.Ct. 612,
633, 46 L.Ed.2d 659 (1976), or to prevent littering,
see Schneider v. State (Town of Irvington), 308 U.S.
147, 163, 60 S.Ct. 146, 84 L.Ed. 155 (1939)), we
insist that *2466 it meet the high, First-
Amendment standard of justification. But virtually
every law restricts conduct, and virtually any
prohibited conduct can be performed for an
expressive purpose--if only expressive of the fact
that the actor disagrees with the prohibition. See,
e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d
608, 609 (CA11 1984) (nude sunbathers challenging
public indecency law claimed their "message" was
that nudity is not indecent). It cannot reasonably be
demanded, therefore, that every restriction of
expression incidentally produced by a general law
regulating conduct pass normal First Amendment
scrutiny, or even--as some of our cases have
suggested, see, e.g., United States v. O'Brien, 391
U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d
672 (1968)--that it be justified by an "important or
substantial" [501 U.S. 577] government interest.
Nor do our holdings require such justification: We
have never invalidated the application of a general
law simply because the conduct that it reached was
being engaged in for expressive purposes and the
government could not demonstrate a sufficiently
important state interest.
This is not to say that the First Amendment affords
no protection to expressive conduct. Where the
government prohibits conduct precisely because of
its communicative attributes, we hold the regulation
unconstitutional. See, e.g., United States v.
Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110
L.Ed.2d 287 (1990) (burning flag); Texas v.
Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105
L.Ed.2d 342 (1989) (same); Spence v. Washington,
418 U.S. 405, 94 S.Ct. 2727, 41 L. Ed.2d 842
(1974) (defacing flag); Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503,
89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black
arm bands); Brown v. Louisiana, 383 U.S. 131, 86
S.Ct. 719, 15 L.Ed.2d 637 (1966) (participating in
silent sit-in); Stromberg v. California, 283 U.S.
359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (flying a
red flag). (FN4) In each of the foregoing cases, we
explicitly found that suppressing communication was
the object of the regulation of conduct. Where that
has not been the case, however--where suppression
of communicative use of the conduct was merely the
incidental effect of forbidding the conduct for other
reasons--we have allowed the regulation to stand.
O'Brien, supra, 391 U.S., at 377, 88 S.Ct., at 1679
(law banning destruction of draft card upheld in
application against card burning to protest[501 U.S.
578] war); FTC v. Superior Court Trial Lawyers
Assn., 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d
851 (1990) (Sherman Act upheld in application
against restraint of trade to protest low pay); cf.
United States v. Albertini, 472 U.S. 675, 687-688,
105 S.Ct. 2897, 2905-2906, 86 L.Ed.2d 536 (1985)
(rule barring respondent from military base upheld
in application against entrance on base to protest
war); Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 104 S.Ct. 3065, 82
L.Ed.2d 221 (1984) (rule barring sleeping in parks
upheld in application against persons engaging in
such conduct to dramatize plight of homeless). As
we clearly expressed the point in Johnson:
"The government generally has a freer hand in
restricting expressive conduct than it has in
restricting the written or spoken word. It may not,
however, proscribe particular conduct because it
has expressive elements. What might be termed
the more generalized guarantee of freedom of
expression makes the communicative nature of
conduct an inadequate basis for *2467 singling
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out that conduct for proscription.~ 491 U.S., at
406, 109 S.Ct., at 2540-2541 (internal quotation
marks and citations omitted; emphasis in original).
All our holdings (though admittedly not some of
our discussion) support the conclusion that "the only
First Amendment analysis applicable to laws that do
not directly or indirectly impede speech is the
threshold inquiry of whether the purpose of the law
is to suppress communication. If not, that is the end
of the matter so far as First Amendment guarantees
are concerned; if so, the court then proceeds to
determine whether there is substantial justification
for the proscription. ~ Community for Creative Non-
Violence v. Watt, 227 U.S.App. D.C. 19, 55-56, 703
F.2d 586, 622-623 (1983) (en banc) (Scalia, J.,
dissenting), (footnote omitted; emphasis omitted),
rev'd sub nom. Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82
L.Ed.2d 221 (1984). Such a regime ensures that the
government does not act to suppress communication,
without requiring that all conduct-restricting
regulation [501 U.S. 579] which means in effect all
regulation) survive an enhanced level of scrutiny.
being engaged in for religious reasons; but almost
anyone can violate almost any law as a means of
expression. In the one case, as in the other, if the
law is not directed against the protected value
(religion or expression) the law must be obeyed.
III
While I do not think the plurality's conclusions
differ greatly from my own, I cannot entirely
endorse its reasoning. The plurality purports to
apply to this general law, insofar as it regulates this
allegedly expressive conduct, an intermediate level
of First Amendment scrutiny: The government
interest in the regulation must be" 'important or
substantial,' "ante, at 2461, quoting O'Brien,
supra, 391 U.S., at 377, 88 S.Ct., at 1679. As I
have indicated, J501 U.S. 580] I do not believe such
a heightened standard exists. I think we should
avoid wherever possible, moreover, a method of
analysis that requires judicial assessment of the
"importance" of government interests--and
especially of government interests in various aspects
of morality.
We have explicitly adopted such a regime in
another First Amendment context: that of free
exercise. In Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872, 110
S.Ct. 1595, 108 L. Ed.2d 876 (1990), we held that
general laws not specifically targeted at religious
practices did not require heightened First
Amendment scrutiny even though they diminished
some people's ability to practice their religion.
"The government's ability to enforce generally
applicable prohibitions of socially harmful conduct,
like its ability to carry out other aspects of public
policy, 'cannot depend on measuring the effects of a
governmental action on a religious objector's
spiritual development.'" Id., at 885 [110 S.Ct., at
1603], quoting Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439, 451, 108 S.Ct.
1319, 1326, 99 L.Ed.2d 534 (1988); see also
Minersville School District v. Gobitis, 310 U.S.
586, 594-595, 60 S.Ct. 1010, 1012-1013, 84 L.Ed.
1375 (1940) (Frankfurter, J.) ("Conscientious
scruples have not, in the course of the long struggle
for religious toleration, relieved the individual from
obedience to a general law not aimed at the
promotion or restriction of religious beliefs").
There is even greater reason to apply this approach
to the regulation of expressive conduct. Relatively
few can plausibly assert that their illegal conduct is
Neither of the cases that the plurality cites to
support the "importance" of the State's interest here,
see ante, at 2462, is in point. Paris Adult Theatre I
v. Slaton, 413 U.S., at 61, 93 S.Ct., at 2637 and
Bowers v. Hardwick, 478 U.S., at 196, 106 S.Ct.,
at 2846, did uphold laws prohibiting private conduct
based on concerns of decency and morality; but
neither opinion held that those concerns were
particularly "important" or "substantial," or
mounted to anything more than a rational basis for
regulation. Slaton involved an exhibition which,
since it was obscene *2468 and at least to some
extent public, was unprotected by the First
Amendment, see Roth v. United States, 354 U.S.
476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); the
State's prohibition could therefore be invalidated
only if it had no rational basis. We found that the
State's "right ... to maintain a decent society"
provided a "legitimate" basis for regulation--even as
to obscene material viewed by consenting adults.
413 U.S., at 59-60, 93 S.Ct., at 2636-2637. In
Bowers, we held that since homosexual behavior is
not a fundamental right, a Georgia law prohibiting
private homosexual intercourse needed only a
rational basis in order to comply with the Due
Process Clause. Moral opposition to homosexuality,
we said, provided that rational basis. 478 U.S., at
196, 106 S.Ct., at 2846. I would uphold the
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Indiana statute on precisely the same ground: Moral
opposition to nudity supplies a rational basis for its
prohibition, and since the First Amendment has no
application to this case no more than that is needed.
Indiana may constitutionally enforce its prohibition
of public nudity even against those who choose to
use public nudity as a means of communication.
The State is regulating conduct, not expression, and
those who choose to employ conduct[501 U.S. 581]
as a means of expression must make sure that the
conduct they select is not generally forbidden. For
these reasons, I agree that the judgment should be
reversed.
Justice SOUTER, concurring in the judgment.
Not all dancing is entitled to First Amendment
protection as expressive activity. This Court has
previously categorized ballroom dancing as beyond
the Amendment's protection, Dallas v. Stanglin, 490
U.S. 19, 24-25, 109 S.Ct. 1591, 1594-1595, 104
L.Ed.2d 18 (1989), and dancing as aerobic exercise
would likewise be outside the First Amendment's
concern. But dancing as a performance directed to
an actual or hypothetical audience gives expression
at least to generalized emotion or feeling, and where
the dancer is nude or nearly so the feeling
expressed, in the absence of some contrary clue, is
eroticism, carrying an endorsement of erotic
experience. Such is the expressive content of the
dances described in the record.
Although such performance dancing is inherently
expressive, nudity per se is not. It is a condition,
not an activity, and the voluntary assumption of that
condition, without more, apparently expresses
nothing beyond the view that the condition is
somehow appropriate to the circumstances. But
every voluntary act implies some such idea, and the
implication is thus so common and minimal that
calling all voluntary activity expressive would
reduce the concept of expression to the point of the
meaningless. A search for some expression beyond
the minimal in the choice to go nude will often yield
nothing: a person may choose nudity, for example,
for maximum sunbathing. But when nudity is
combined with expressive activity, its stimulative
and attractive value certainly can enhance the force
of expression, and a dancer's acts in going from
clothed to nude, as in a striptease, are integrated
into the dance and its expressive function. Thus I
agree with the plurality and the dissent that an
interest in freely engaging in the nude dancing at
issue here is subject to a degree of First Amendment
protection.
[501 U.S. 582] I also agree with the plurality that
the appropriate analysis to determine the actual
protection required by the First Amendment is the
four-part enquiry described in United States v.
O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d
672 (1968), for judging the limits of appropriate
state action burdening expressive acts as distinct
from pure speech or representation. I nonetheless
write separately to rest my concurrence in the
judgment, not on the possible sufficiency of
society's moral views to justify the limitations at
issue, but on the State's substantial interest in
combating the secondary effects of adult *2469
entertainment establishments of the sort typified by
respondents' establishments.
It is, of course, true that this justification has not
been articulated by Indiana's Legislature or by its
courts. As the plurality observes, ~Indiana does not
record legislative history, and the State's highest
court has not shed additional light on the statute's
purpose," ante, at 2461. While it is certainly sound
in such circumstances to infer general purposes ~of
protecting societal order and morality ... from [the
statute's] text and history,' ibid., I think that we
need not so limit ourselves in identifying the
justification for the legislation at issue here, and
may legitimately consider petitioners' assertion that
the statute is applied to nude dancing because such
dancing "encourag[es] prostitution, increas[es]
sexual assaults, and attract[s] other criminal
activity." Brief for Petitioners 37.
This asserted justification for the statute may not
be ignored merely because it is unclear to what
extent this purpose motivated the Indiana Legislature
in enacting the statute. Our appropriate focus is not
an empirical enquiry into the actual intent of the
enacting legislature, but rather the existence or not
of a current governmental interest in the service of
which the challenged application of the statute may
be constitutional. Cf. McGowan v. Maryland, 366
U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 [501 U.S.
583] 1961). At least as to the regulation of
expressive conduct, (FN1) "[w]e decline to void [a
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statute] essentially on the ground that it is unwise
legislation which [the legislature] had the undoubted
power to enact and which could be reenacted in its
exact form if the same or another legislator made a
'wiser' speech about it." O'Brien, supra, 391 U.S.,
at 384, 88 S.Ct., at 1683. In my view, the interest
asserted by petitioners in preventing prostitution,
sexual assault, and other criminal activity, although
presumably not a justification for all applications of
the statute, is sufficient under O'Brien to justify the
State's enforcement of the statute against the type of
adult entertainment at issue here.
At the outset, it is clear that the prevention of such
evils falls within the constitutional power of the
State, which satisfies the first O'Brien criterion.
See 391 U.S., at 377, 88 S.Ct., at 1679. The
second O'Brien prong asks whether the regulation
"furthers an important or substantial governmental
interest." /b/d. The asserted state interest is plainly
a substantial one; the only question is whether
prohibiting nude dancing of the sort at issue here
"furthers~ that interest. I believe that our cases have
addressed this question sufficiently to establish that
it does.
In Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925, 89 L. Ed.2d 29 (1986), we upheld a
city's zoning ordinance designed to prevent the
occurrence of harmful secondary effects, including
the crime associated with adult entertainment, by
protecting approximately 95% of the city's area
from the placement of motion picture theaters
emphasizing" 'matter depicting, describing or
relating to "specified sexual activities" or "specified
anatomical areas" ... for observation by patrons
therein.'" Id., at 44, 106 S.Ct., at 927. Of
particular importance to the present enquiry, we
held that the city of Renton was not compelled to
justify its restrictions by studies specifically relating
to the problems [501 U.S. 584] that would be caused
by adult theaters in that city. Rather, "Renton was
entitled to rely on the experiences of Seattle and
other cities," id., at 51, 106 S.Ct., at 931, which
demonstrated the harmful secondary effects
correlated with the presence "of even one [adult]
theater in a given neighborhood." Id., at 50, 106
S.Ct., at 930; cf. Young v. American Mini
Theatres, Inc., 427 U.S. 50, 71, n. 34, 96 S.Ct.
2440, 2453, n. 34, 49 L.Ed.2d 310 (1976)
(legislative finding that "a concentration of 'adult'
movie theaters causes the area to deteriorate and
become a focus of crime"); California v. LaRue,
409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d
342 (1972) *2470 (administrative f'mdings of
criminal activity associated with adult entertainment
).
The type of entertainment respondents seek to
provide is plainly of the same character as that at
issue in Renton, American Mini Theatres, and
LaRue. It therefore is no leap to say that live nude
dancing of the sort at issue here is likely to produce
the same pernicious secondary effects as the adult
films displaying "specified anatomical areas" at
issue in Renton. Other reported cases from the
Circuit in which this litigation arose confirm the
conclusion. See, e.g., United States v. Marren, 890
F.2d 924, 926 (CA7 1989) (prostitution associated
with nude dancing establishment); United States v.
Doerr, 886 F.2d 944, 949 (CA7 1989) (same). In
light of Renton's recognition that legislation seeking
to combat the secondary effects of adult
entertainment need not await localized proof of those
effects, the State of Indiana could reasonably
conclude that forbidding nude entertainment of the
type offered at the Kitty Kat Lounge and the Glen
Theatre's "bookstore" furthers its interest in
preventing prostitution, sexual assault, and
associated crimes. Given our recognition that
"society's interest in protecting this type of
expression is of a wholly different, and lesser,
magnitude than the interest in untrammeled political
debate," American Mini Theatres, supra, 427 U.S.,
at 70, 96 S.Ct., at 2452, I do not believe that a State
is required affirmatively to undertake to litigate this
issue repeatedly in every [501 U.S. 585] case. The
statute as applied to nudity of the sort at issue here
therefore satisfies the second prong of O'Brien.
(FN2)
The third O'Brien condition is that the
governmental interest be "unrelated to the
suppression of free expression," 391 U.S., at 377,
88 S.Ct., at 1679, and, on its face, the
governmental interest in combating prostitution and
other criminal activity is not at all inherently related
to expression. The dissent contends, however, that
Indiana seeks to regulate nude dancing as its means
of combating such secondary effects 'becanse ...
creating or emphasizing [the] thoughts and ideas
[expressed by nude dancing] in the minds of the
spectators may lead to increased prostitution," post,
at 2474, and that regulation of expressive conduct
because of the fear that the expression will prove
persuasive is inherently related to the suppression of
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free expression. Ibid.
third prong of the O'Brien test.
The major premise of the dissent's reasoning may
be correct, but its minor premise describing the
causal theory of Indiana's regulatory justification is
not. To say that pernicious secondary effects are
associated with nude dancing establishments is not
necessarily to say that such effects result from the
persuasive effect of the expression inherent in nude
dancing. It is to say, rather, only that the effects are
correlated with the existence of establishments
offering such dancing, without deciding what the
precise causes of the correlation [501 U.S. 586]
actually are. It is possible, for example, that the
higher incidence of prostitution and sexual assault in
the vicinity of adult entertainment locations results
from the concentration of crowds of men
predisposed to such activities, or from the simple
viewing of nude bodies regardless of whether those
bodies are engaged in expression or not. In neither
case would the chain of causation mn through the
persuasive effect of the expressive component of
nude dancing.
· 2471 Because the State's interest in banning nude
dancing results from a simple correlation of such
dancing with other evils, rather than from a
relationship between the other evils and the
expressive component of the dancing, the interest is
unrelated to the suppression of free expression.
Renton is again persuasive in support of this
conclusion. In Renton, we held that an ordinance
that regulated adult theaters because the presence of
such theaters was correlated with secondary effects
that the local government had an interest in
regulating was content neutral (a determination
similar to the "unrelated to the suppression of free
expression" determination here, see Clark v.
Community for Creative Non-Violence, 468 U.S.
288, 298, and n. 8, 104 S.Ct. 3065, 3071, and n. 8,
82 L.Ed.2d 221 (1984)) because it was 'Justified
without reference to the content of the regulated
speech.~ 475 U.S., at 48, 106 S.Ct., at 929
(emphasis in original). We reached this conclusion
without need to decide whether the cause of the
correlation might have been the persuasive effect of
the adult films that were being regulated. Similarly
here, the "secondary effects" justification means that
enforcement of the Indiana statute against nude
dancing is "justified without reference to the content
of the regulated [expression]," ibid. (emphasis
omitted), which is sufficient, at least in the context
of sexually explicit expression, (FN3) to satisfy the
[501 U.S. 587] The fourth O'Brien condition, that
the restriction be no greater than essential to further
the governmental interest, requires little discussion.
Pasties and a G-string moderate the expression to
some degree, to be sure, but only to a degree.
Dropping the final stitch is prohibited, but the
limitation is minor when measured against the
dancer's remaining capacity and opportunity to
express the erotic message. Nor, so far as we are
told, is the dancer or her employer limited by
anything short of obscenity laws from expressing an
erotic message by articulate speech or
representational means; a pornographic movie
featuring one of respondents, for example, was
playing nearby without any interference from the
authorities at the time these cases arose.
Accordingly, I f'md O'Brien satisfied and concur in
the judgment.
Justice WHITE, with whom Justice MARSHALL,
Justice BLACKMUN, and Justice STEVENS join,
dissenting.
The first question presented to us in this case is
whether nonobscene nude dancing performed as
entertainment is expressive conduct protected by the
First Amendment. The Court of Appeals held that it
is, observing that our prior decisions permit no other
conclusion. Not surprisingly, then, the plurality
now concedes that 'nude dancing of the kind sought
to be performed here is expressive conduct within
the outer perimeters of the First Amendment .... "
Ante, at 2460. This is no more than recognizing, as
the Seventh Circuit observed, that dancing is an
ancient art form and "inherently embodies the
expression and communication of ideas and
emotions." Miller v. Civil City of South Bend, 904
F.2d 1081, 1087 (1990) (en bane). (FN1)
*2472 [501 U.S. 588] Having arrived at the
conclusion that nude dancing performed as
entertainment enjoys First Amendment protection,
the plurality states that it must "determine the level
of protection to be afforded to the expressive
conduct at issue, and must determine whether the
Indiana statute is an impermissible infringement of
that protected activity." Ante, at 2460. For
guidance, the plurality turns to United States v.
O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d
672 (1968), which held that expressive conduct
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could be narrowly regulated or forbidden in pursuit
of an important or substantial governmental interest
that is unrelated to the content of the expression.
The plurality fmds that the Indiana statute satisfies
the O'Brien test in all respects.
The plurality acknowledges that it is impossible to
discern the exact state interests which the Indiana
Legislature had in mind when it enacted the Indiana
statute, but the plurality nonetheless concludes that it
is clear from the statute's text and history that the
law's purpose is to protect "societal order and
morality." Ante, at 2461. The plurality goes on to [
501 U.S. 589] conclude that Indiana's statute "was
enacted as a general prohibition," ante, at 2461
(emphasis added), on people appearing in the nude
among strangers in public places. The plurality then
points to cases in which we upheld legislation based
on the State's police power, and ultimately
concludes that the Indiana statute "furthers a
substantial government interest in protecting order
and morality." Ante, at 2462. The Court also holds
that the basis for banning nude dancing is unrelated
to free expression and that it is narrowly drawn to
serve the State's interest.
The plurality's analysis is erroneous in several
respects. Both the plurality and Justice SCALIA in
his opinion concurring in the judgment overlook a
fundamental and critical aspect of our cases
upholding the States' exercise of their police
powers. None of the cases they rely upon, including
O'Brien and Bowers v. Hardwick, 478 U.S. 186,
106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), involved
anything less than truly general proscriptions on
individual conduct. In O'Brien, for example,
individuals were prohibited from destroying their
draft cards at any time and in any place, even in
completely private places such as the home.
Likewise, in Bowers, the State prohibited sodomy,
regardless of where the conduct might occur,
including the home as was true in that case. The
same is true of cases like Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872,
110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which,
though not applicable here because it did not involve
any claim that the peyote users were engaged in
expressive activity, recognized that the State's
interest in preventing the use of illegal drugs extends
even into the home. By contrast, in this case
Indiana does not suggest that its statute applies to, or
could be applied to, nudity wherever it occurs,
including the home. We do not understand the
plurality or Justice SCALIA to be suggesting that
Indiana could constitutionally enact such an intrusive
prohibition, nor do we think such a suggestion
would be tenable in light of our decision in Stanley
v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22
L.Ed.2d 542 (1969), in which we held that States
could not punish the [501 U.S. 590] mere possession
of obscenity in the privacy of one's own home.
*2473 We are told by the attorney general of
Indiana that, in State v. Baysinger, 272 Ind. 236,
397 N.E.2d 580 (1979), the Indiana Supreme Court
held that the statute at issue here cannot and does not
prohibit nudity as a part of some larger form of
expression meriting protection when the
communication of ideas is involved. Brief for
Petitioners 25, 30-31; Reply Brief for Petitioners
9-11. Petitioners also state that the evils sought to
be avoided by applying the statute in this case would
not obtain in the case of theatrical productions, such
as "Salome" or "Hair." Id., at 11-12. Neither is
there any evidence that the State has attempted to
apply the statute to nudity in performances such as
plays, ballets, or operas. ~No arrests have ever
been made for nudity as part of a play or ballet.'
App. 19 (affidavit of Sgt. Timothy Corbett).
Thus, the Indiana statute is not a general
prohibition of the type we have upheld in prior
cases. As a result, the plurality and Justice
SCALIA's simple references to the State's general
interest in promoting societal order and morality are
not sufficient justification for a statute which
concededly reaches a significant amount of protected
expressive activity. Instead, in applying the O'Brien
test, we are obligated to carefully examine the
reasons the State has chosen to regulate this
expressive conduct in a less than general statute. In
other words, when the State enacts a law which
draws a line between expressive conduct which is
regulated and nonexpressive conduct of the same
type which is not regulated, O'Brien places the
burden on the State to justify the distinctions it has
made. Closer inquiry as to the purpose of the
statute is surely appropriate.
Legislators do not just randomly select certain
conduct for proscription; they have reasons for
doing so and those reasons illuminate the purpose of
the law that is passed. Indeed, a law may have
multiple purposes. The purpose of [501 U.S. 591]
forbidding people to appear nude in parks, beaches,
hot dog stands, and like public places is to protect
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others from offense. But that could not possibly be
the purpose of preventing nude dancing in theaters
and barrooms since the viewers are exclusively
consenting adults who pay money to see these
dances. The purpose of the proscription in these
contexts is to protect the viewers from what the
State believes is the harmful message that nude
dancing communicates. This is why Clark v.
Community for Creative Non-Violence, 468 U.S.
288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), is of
no help to the State: ~In Clark ... the damage to the
parks was the same whether the sleepers were
camping out for fun, were in fact homeless, or
wished by sleeping in the park to make a symbolic
statement on behalf of the homeless." 904 F.2d, at
1103 (Posner, J., concurring). That cannot be said
in this case: The perceived damage to the public
interest caused by appearing nude on the streets or
in the parks, as I have said, is not what the State
seeks to avoid in preventing nude dancing in theaters
and taverns. There the perceived harm is the
communicative aspect of the erotic dance. As the
State now tells us, and as Justice SOUTER agrees,
the State's goal in applying what it describes as its
"content neutral" statute to the nude dancing in this
case is "deterrence of prostitution, sexual assaults,
criminal activity, degradation of women, and other
activities which break down family structure."
Reply Brief for Petitioners 11. The attainment of
these goals, however, depends on preventing an
expressive activity.
The plurality nevertheless holds that the third
requirement of the O'Brien test, that the
governmental interest be unrelated to the
suppression of free expression, is satisfied because
in applying the statute to nude dancing, the State is
not "proscribing nudity because of the erotic
message conveyed by the dancers." Ante, at 2463.
The plurality suggests that this is so because the
State does not ban dancing that sends an erotic
message; it is only nude erotic dancing that is
forbidden. The perceived evil is not erotic dancing
but public[501 U.S. 592] nudity, which may be
prohibited despite any incidental impact on *2474
expressive activity. This analysis is transparently
erroneous.
In arriving at its conclusion, the plurality concedes
that nude dancing conveys an erotic message and
concedes that the message would be muted if the
dancers wore pasties and G-strings. Indeed, the
emotional or erotic impact of the dance is intensified
by the nudity of the performers. As Judge Posner
argued in his thoughtful concurring opinion in the
Court of Appeals, the nudity of the dancer is an
integral part of the emotions and thoughts that a
nude dancing performance evokes. 904 F.2d at
1090-1098. The sight of a fully clothed, or even a
partially clothed, dancer generally will have a far
different impact on a spectator than that of a nude
dancer, even if the same dance is performed. The
nudity is itself an expressive component of the
dance, not merely incidental "conduct." We have
previously pointed out that ~ '[n]udity alone' does
not place otherwise protected material outside the
mantle of the First Amendment.~ Schad v. Mt.
Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181,
68 L.Ed.2d 671 (1981).
This being the case, it cannot be that the statutory
prohibition is urn'elated to expressive conduct. Since
the State permits the dancers to perform if they wear
pasties and G-strings but forbids nude dancing, it is
precisely because of the distinctive, expressive
content of the nude dancing performances at issue in
this case that the State seeks to apply the statutory
prohibition. It is only because nude dancing
performances may generate emotions and feelings of
eroticism and sensuality among the spectators that
the State seeks to regulate such expressive activity,
apparently on the assumption that creating or
emphasizing such thoughts and ideas in the minds of
the spectators may lead to increased prostitution and
the degradation of women. But generating thoughts,
ideas, and emotions is the essence of
communication. The nudity element of nude
dancing performances cannot[501 U.S. 593] be
nearly pigeonholed as mere "conduct" independent
of any expressive component of the dance. (FN2)
That fact dictates the level of First Amendment
protection to be accorded the performances at issue
here. In Texas v. Johnson, 491 U.S. 397, 411-412,
109 S.Ct. 2533, 2543-2544, 105 L.Ed.2d 342
(1989), the Court observed: "Whether Johnson's
treatment of the flag violated Texas law thus
depended on the likely communicative impact of his
expressive conduct .... We must therefore subject
the State's asserted interest in preserving the special
symbolic character of the flag to 'the most exacting
scrutiny.' Boos v. Barry, 485 U.S. [312], 321 [108
S.Ct. 1157, 1164, 99 L.Ed.2d 333] [ (1988) ]."
Content based restrictions ~will be upheld only if
narrowly drawn to accomplish a compelling
governmental interest." United States v. Grace, 461
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U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d
736 (1983); Sable Communications of Cal., Inc. v.
FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836,
106 L.Ed.2d 93 (1989). Nothing could be clearer
from our cases.
That the performances in the Kitty Kat Lounge
may not be high art, to say the least, and may not
appeal to the Court, is hardly an excuse for
distorting and ignoring settled doctrine. The Court's
assessment of the artistic merits of nude dancing
performances *2475 should not be the determining
factor in deciding this case. In the words of Justice
Harlan: '[I]t is largely because governmental
officials cannot make principled decisions[501 U.S.
594] in this area that the Constitution leaves matters
of taste and style so largely to the individual."
Cohen v. California, 403 U.S. 15, 25, 91 S.Ct.
1780, 1788, 29 L.Ed.2d 284 (1971). "[W]hile the
entertainment afforded by a nude ballet at Lincoln
Center to those who can pay the price may differ
vastly in content (as viewed by judges) or in quality
(as viewed by critics), it may not differ in substance
from the dance viewed by the person who ... wants
some 'entertainment' with his beer or shot of rye."
Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3
(CA2 1974), aff'd in part sub nom., Doran v. Salem
Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d
648 (1975).
The plurality and Justice SOUTER do not go
beyond saying that the state interests asserted here
are important and substantial. But even if there
were compelling interests, the Indiana statute is not
narrowly drawn. If the State is genuinely concerned
with prostitution and associated evils, as Justice
SOUTER seems to think, or the type of conduct that
was occurring in California v. LaRue, 409 U.S.
109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), it can
adopt restrictions that do not interfere with the
expressiveness of nonobscene nude dancing
performances. For instance, the State could perhaps
require that, while performing, nude performers
remain at all times a certain minimum distance from
spectators, that nude entertainment be limited to
certain hours, or even that establishments providing
such entertainment be dispersed throughout the city.
Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925, 89 L. Ed.2d 29 (1986). Likewise,
the State clearly has the authority to criminalize
prostitution and obscene behavior. Banning an
entire category of expressive activity, however,
generally does not satisfy the narrow tailoring
requirement of strict First Amendment scrutiny.
See Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct.
2495, 2503, 101 L.Ed.2d 420 (1988). Furthermore,
if nude dancing in barrooms, as compared with
other establishments, is the most worrisome
problem, the State could invoke its Twenty-first
Amendment powers and impose appropriate
regulation. New York State Liquor Authority v.
Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69
L.Ed.2d 357 (1981) (per curiam); California v.
LaRue, supra.
[501 U.S. 595] As I see it, our cases require us to
affirm absent a compelling state interest supporting
the statute. Neither the plurality nor the State
suggest that the statute could withstand scrutiny
under that standard.
Justice SCALIA's views are similar to those of the
plurality and suffer from the same defects. The
Justice asserts that a general law barring specified
conduct does not implicate the First Amendment
unless the purpose of the law is to suppress the
expressive quality of the forbidden conduct, and
that, absent such purpose, First Amendment
protections are not triggered simply because the
incidental effect of the law is to proscribe conduct
that is unquestionably expressive. Cf. Community
for Creative Non-Violence v. Watt, 227
U.S.App. D.C. 19, 703 F.2d 586, 622-623 (1983)
(Scalia, J., dissenting). The application of the
Justice's proposition to this case is simple to state:
The statute at issue is a general law banning nude
appearances in public places, including barrooms
and theaters. There is no showing that the purpose
of this general law was to regulate expressive
conduct; hence, the First Amendment is irrelevant
and nude dancing in theaters and barrooms may be
forbidden, irrespective of the expressiveness of the
dancing.
As I have pointed out, however, the premise for
the Justice's position--that the statute is a general
law of the type our cases contemplate--is nonexistent
in this case. Reference to Justice SCALIA's own
hypothetical makes this clear. We agree with
Justice SCALIA that the Indiana statute would not
permit 60,000 consenting Hoosiers to expose
themselves to each other in the Hoosier Dome. No
one can doubt, however, that those same 60,000
Hoosiers would be perfectly *2476. free to drive to
their respective homes all across Indiana and, once
there, to parade around, cavort, and revel in the
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nude for hours in front of relatives and friends. It is
difficult to see why the State's interest in morality is
any less in that situation, especially if, as Justice
SCALIA seems to suggest, nudity is inherently evil,
but clearly the statute does [501 U.S. 596] not reach
such activity. As we pointed out earlier, the State's
failure to enact a truly general proscription requires
closer scrutiny of the reasons for the distinctions the
State has drawn. See supra, at 2473.
tolerate or to allow some nudity as a part of some
larger form of expression meriting protection,
when the communication of ideas is involved."
State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d
580, 587 (1979) (emphasis added), appeals dism'd
sub nom. Clark v. Indiana, 446 U.S. 931, 100
S.Ct. 2146, 64 L.Ed.2d 783, and Dove v. Indiana,
449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980)
As explained previously, the purpose of applying
the law to the nude dancing performances in
respondents' establishments is to prevent their
customers from being exposed to the distinctive
communicative aspects of nude dancing. That being
the case, Justice SCALIA's observation is fully
applicable here: "Where the government prohibits
conduct precisely because of its communicative
attributes, we hold the regulation unconstitutional."
Ante, at 2466.
The O'Brien decision does not help Justice
SCALIA. Indeed, his position, like the plurality's,
would eviscerate the O'Brien test. Employment
Div., Dept. of Human Resources of Ore. v. Smith,
494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876
(1990), is likewise not on point. The Indiana law,
as applied to nude dancing, targets the expressive
activity itself; in Indiana nudity in a dancing
performance is a crime because of the message such
dancing communicates. In Smith, the use of drugs
was not criminal because the use was part of or
occurred within the course of an otherwise protected
religious ceremony, but because a general law made
it so and was supported by the same interests in the
religious context as in others.
Accordingly, I would affirm the judgment of the
Court of Appeals, and dissent from this Court's
judgment.
FN* The syllabus constitutes no part of the opinion
of the Court but has been prepared by the Reporter
of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U.S.
321,337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
Five years after Baysinger, however, the Indiana
Supreme Court reversed a decision of the Indiana
Court of Appeals holding that the statute did "not
apply to activity such as the theatrical appearances
involved herein, which may not be prohibited
absent a f'mding of obscenity," in a case involving
a partially nude dance in the "Miss Erotica of Fort
Wayne" contest. Erhardt v. State, 468 N.E.2d 224
(Ind. 1984). The Indiana Supreme Court did not
discuss the constitutional issues beyond a cursory
comment that the statute had been upheld against
constitutional attack in Baysinger, and Erhardt's
conduct fell within the statutory prohibition.
Justice Hunter dissented, arguing that "a public
indecency statute which prohibits nudity in any
public place is unconstitutionally overbroad. My
reasons for so concluding have already been
articulated in State v. Baysinger, (1979) 272 Ind.
236, 397 N.E.2d 580 (Hunter and DeBruler, JJ.,
dissenting)." 468 N.E.2d at 225-226. Justice
DeBruler expressed similar views in his dissent in
Erhardt. Id., at 226. Therefore, the Indiana
Supreme Court did not affirmatively limit the reach
of the statute in Baysinger, but merely said that to
the extent the First Amendment would require it,
the statute might be unconstitutional as applied to
some activities.
FN2. Indiana Code § 35-454-1 (1988) provides:
"Public indecency; indecent exposure
"Sec. 1. (a) A person who knowingly or
intentionally, in a public place:
"(1) engages in sexual intercourse;
FNI. The Indiana Supreme Court appeared to give
the public indecency statute a limiting construction
to save it from a facial overbreadth attack:
"(2) engages in deviate sexual conduct;
"(3) appears in a state of nudity; or
"There is no right to appear nude in public.
Rather, it may be constitutionally required to
"(4) fondles the genitals of himself or another
person;
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commits public indecency, a Class A
misdemeanor.
"(b) 'Nudity' means the showing of the human
male or female genitals, pubic area, or buttocks
with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque
covering of any part of the nipple, or the showing
of the covered male genitals in a discernibly turgid
state."
*2476_ FN1. Respondents assert that the statute
cannot be characterized as a general regulation of
conduct, unrelated to suppression of expression,
because one defense put forward in oral argument
below by the attorney general referred to the
~message of eroticism" conveyed by respondents.
But that argument seemed to go to whether the
statute could constitutionally be applied to the
present performances, rather than to what was the
purpose of the legislation. Moreover, the State's
argument below was in the alternative: (1) that the
statute does not implicate the First Amendment
because it is a neutral rule not directed at
expression, and (2) that the statute in any event
survives First Amendment scrutiny because of the
State's interest in suppressing nude barroom
dancing. The second argument can be claimed to
contradict the first (though I think it does not); but
it certainly does not waive or abandon it. In any
case, the clear purpose shown by both the text and
historical use of the statute cannot be refuted by a
litigating statement in a single case.
FN2. Respondents also contend that the statute, as
interpreted, is not content neutral in the expressive
conduct to which it applies, since it allegedly does
not apply to nudity in theatrical productions. See
State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d
580, 587 (1979). I am not sure that theater versus
nontheater represents a distinction based on content
rather than format, but assuming that it does, the
argument nonetheless fails for the reason the
plurality describes, ante, at 2459, n. 1.
FN3. The dissent, post, at 2472-2473, 2475-2476,
also misunderstands what is meant by the term
"general law.H I do not mean that the law
restricts the targeted conduct in all places at all
times. A law is "general" for the present purposes
if it regulates conduct without regard to whether
that conduct is expressive. Concededly, Indiana
bans nudity in public places, but not within the
privacy of the home. (That is not surprising, since
the common-law offense, and the traditional moral
prohibition, runs against public nudity, not against
all nudity. E.g., 50 Am.Jur.2d, Lewdness,
Indecency, and Obscenity, § 17, pp. 472474
(1970).) But that confirms, rather than refutes,
the general nature of the law: One may not go
nude in public, whether or not one intends thereby
to convey a message, and similarly one may go
nude in private, again whether or not that nudity is
expressive.
FN4. It is easy to conclude that conduct has been
forbidden because of its communicative attributes
when the conduct in question is what the Court has
called "inherently expressive,' and what I would
prefer to call "conventionally expressive"--such as
flying a red flag. I mean by that phrase (as I
assume the Court means by "inherently
expressive') conduct that is normally engaged in
for the purpose of communicating an idea, or
perhaps an emotion, to someone else. I am not
sure whether dancing fits that description, see
Dallas v. Stanglin, 490 U.S. 19, 24, 109 S.Ct.
1591, 1595, 104 L. Ed.2d 18 (1989) (social dance
group "do[es] not involve the sort of expressive
association that the First Amendment has been held
to protect"). But even if it does, this law is
directed against nudity, not dancing. Nudity is not
normally engaged in for the purpose of
communicating an idea or an emotion.
FN1. Cf., e.g., Edwards v. Aguillard, 482 U.S.
578, 107 S.Ct. 2573, 96 L.Ed,2d 510 (1987)
(striking down state statute on Establishment
Clause grounds due to impermissible legislative
intent).
FN2. Because there is no overbreadth challenge
before us, we are not called upon to decide
whether the application of the statute would be
valid in other contexts. It is enough, then, to say
that the secondary effects rationale on which I rely
here would be open to question if the State were to
seek to enforce the statute by barring expressive
nudity in classes of productions that could not
readily be analogized to the adult films at issue in
Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925, 89 L.Ed.2d 29 (1986). It is
difficult to see, for example, how the enforcement
of Indiana's statute against nudity in a production
of "Hair" or HEquus" somewhere other than an '
adult" theater would further the State's interest in
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avoiding harmful secondary effects, in the absence
of evidence that expressive nudity outside the
context of Renton-type adult entertainment was
correlated with such secondary effects.
*2476_ FN3. I reach this conclusion again mindful,
as was the Court in Renton, that the protection of
sexually explicit expression may be of lesser
societal importance than the protection of other
forms of expression. See Renton, supra, at 49,
and n. 2, 106 S.Ct., at 929, and n. 2, citing Young
v. American Mini Theatres, Inc., 427 U.S. 50, 70,
96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976).
dialogue or descriptive prose.'" 904 F.2d, at
1085-1086. Justice SCALIA cites Dallas v.
Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104
L.Ed.2d 18 (1989), but that decision dealt with
social dancing, not performance dancing; and the
submission in that case, which we rejected, was
not that social dancing was an expressive activity
but that plaintiff's associational rights were
violated by restricting admission to dance halls on
the basis of age. The Justice also asserts that even
if dancing is inheremly expressive, nudity is not.
The statement may be true, but it tells us nothing
about dancing in the nude.
FN1. Justice SCALIA suggests that performance
dancing is not inherently expressive activity, see
ante, at 2466, n. 4, but the Court of Appeals has
the better view: "Dance has been de£med as 'the
art of moving the body in a rhythmical way,
usually to music, to express an emotion or idea, to
narrate a story, or simply to take delight in the
movement itself.' 16 The New Encyclopedia
Britannica 935 (1989). Inherently, it is the
communication of emotion or ideas. At the root of
all '[t]he varied manifestations of dancing ... lies
the common impulse to resort to movement to
externalise states which we cannot extemalise by
rational means. This is basic dance.' Martin, J.
Introduction to the Dance (1939). Aristotle
recognized in Poetics that the purpose of dance is
'to represent men's character as well as what they
do and suffer.' The raw communicative power of
dance was noted by the French poet St6phane
Mallarm6 who declared that the dancer 'writing
with her body ... suggests things which the written
work could express only in several paragraphs of
FN2. Justice SOUTER agrees with the plurality that
the third requirement of the O'Brien test is
satisfied, but only because he is not certain that
there is a causal connection between the message
conveyed by nude dancing and the evils which the
State is seeking to prevent. See ante, at 2470.
Justice SOUTER's analysis is at least as flawed as
that of the plurality. If Justice SOUTER is correct
that there is no causal connection between the
message conveyed by the nude dancing at issue
here and the negative secondary effects that the
State desires to regulate, the State does not have
even a rational basis for its absolute prohibition on
nude dancing that is admittedly expressive.
Furthermore, if the real problem is the
"concentration of crowds of men predisposed" to
the designated evils, ante, at 2470, then the First
Amendment requires that the State address that
problem in a fashion that does not include banning
an entire category of expressive activity. See
Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
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PREFACE ..... ~,_.~-~.. ~.__ ...
This report presents the findings of the Amarillo Planning Department regarding
the adult entertainment industry within the confines of the Amarillo City Limits.
These findings analyze the land use effects of adult entertainment businesses and
alternatives for their regulation. Adult entertainment businesses are those that
customarily are not open to. the general public by the exclusion of minors by reason
of age.
Presently, the only authority available to a city for regulating adult businesse
is the city's power to zone and license. These methods of control have been sanction
by the Young v American Mini Theaters~ Inc. case.
The determination of what is or is not obscene is to be made by a jury on a
case by case basis in accordance with the test described in the Marvin Miller v State
of California decision. The criminal offenses for dealing in obscenity, proscribed
by the Texas Penal Code, are the exclusive province of the State, and t'he city may
not invade this area by seeking to define obscenity or provide rebuff for its sale,
display or distribution.
A REPORT ON ZONING AND OTHER~_F~-~- - ~
OF REGULATING ADULT ENTERTAINMENT !N AMAR!LLO
Jerry Ammerman
Commissioner No. 1
Houston Deford
Commissioner No. 2
COMMISSION
Jerry H. Hodge
Mayor
John S. Stiff
City Manager
Curtis A. Crofford
Co~issioner No. 2
J. Dean Christy~
Comaissioner No. 4
PLANNING AND ZONING COMMISSION
W. E. (Bill) Juett
Chairman
U. C. Sterquell, Jr., Vice-Chairman
Ronal d Edmondson
Jack Hazlewood
Herbert JohnSon
Martin G. Manwarren
Marvin Winton
PLANNING STAFF
H. Dale Williamson
Director of Planning, Traffic and Code Enforcement
Secretary, Planning and Zoning Co...~ssion
J D Smith, Jr.
Chief Planner
Donna Stanley, Planner II
Gary Dumas, Planner I
Michael D. Moore, Planner
'~om Horton, Draftsman II
r~eno Wilson, Draftsman II
Steve Rodriquez, Draftsman I
Gail Beck, Secretary II!
~.°~axine Hawk, Clerk II
September 12, 1977
A REPORT ON ZONING AND OTHER METHODS
OF REGULATING ADULT ENTERTAINMEbLT_.JJE-A~ILLO
INTRDDUCTION
This report on the current extent of pornography in Amarillo was initiated
upon the request, of the Amarillo Planning and Zoning Commission April 25, 1977.
Accompanying the request was the.desire for information concerning the possible
zoning control of all businesses catering to adults, only.- For the purpose of this
report, adult-only businesses have not been limited to those that display porno-
graphic material, but include bars, lounges, and any other business type which
restricts entry, sale or viewing based upon a minimum age.
This study' is an' attemp~"t'J' briJfly explore the national problem of adult-onl.y
bus~pes~es w~th.a-.'~ajor emphasis on those which deal in P~r~ographic materi'ai .... The
Amarillo situa~i.on was analyzed in relation to the extent of the national .growth of
the adult-only industry and the extent and limitations to which the Cit?. can con,~rol,
through land use mechanisms, the proliferation of the industry~outlets.
Ilo city ordinance regulating any type of adult business is included within this
report and none will be drafted until discussion has occurred on the various opcions
available for the control of adult businesses.
In any consideration of whether or not to control and restrict adult-only
outlets within the municiPal jurisdiction, the following should be reviewed:
I. To prohibit these uses to locate anywhere in the municipality, three
points must be considered~
A. The Courts have generally invalidated legislation which attempts
to prohibit a particular use altogether from a municipality.
C
Prohibiting the location of any pornographic use in the city could
be contested on the grounds that it provides an individual engagec
in such practice no means of livelihood within the City.
Such legislation coUld also be contested on the grounds that it
infringes upon the right of freedom of speech.
2. If these.uses are to be allowed and restricted within t~e municipalitY,
the City must decide where such uses are to be located.' '
METHOD OF ANALYSIS
In the preparation of this report, several data sources were employed.
Current weekly national news magazines were searched for references to the
problems of major urban areas relative to this topic. Several individual cities
known to be exploring methods of controlling the gre~th of the adult-only
i~ndustry were contacted and adopted City Ordinances We~e--wev~.~ed. The AmeriCan
Society of Planning Officials provided advance informati'on from an unreleased
publication on Adult Entertainment which has since been published (copy included
for your review}. Several recent Supreme Court decisions were reviewed in order
to determine the general mood of the law as handed'down~'2 '
This information was synthesized into a form which details the national, limita-
tions placed upon a state and city in the land use control of adult-only businesses.
The Texas obscenity law was then reviewed in order to determine the limitations of·
legislative ~egulation of adult-only businesses and the extent to whiEh Amarill'o, as
a city, may regulate 'the indUstry through land use and licensing mech'a~isms.
DEFINITIONS
Obscenity is defined by the Supreme Court in the following exerpts from
Marvin Miller v State of California:
"Obscene material is not protected by the First Amendment, Roth v
United States, 354, U.S. 476, 77 S. Ct. 1307, 1L. Ed. 2d 1498--~
reaffirmed. A work may be subject to state regulation where that
work, taken as a whole, appeals to the prurient interest in sex;
portrays, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and taken as a whole, does not
have serious literaryj artistic, political, or st-ientific value."
"The basic guidelines for the trier of fact must be: (al whether
the average person, applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient .interest,
Roth, Supra, at 489, 77 S. Ct. at 1311; (b) Whether the work depicts
or describes, 'iF, a po'cently offensive ¥~ay, sexual conduct specifically
defined by the applicable state law, and (c) whether the Work, taken
as a whole, lacks serious literary, artistic, political, or scientific
value. If a state obscenity law is thus limited, First Amendment
values are adequately protected by ultimace independent appellate
review of constitutional claims when necessary."
-2-
3: "The jury may measure the essentially factual issues of prurient appeal
and patent offensiveness by the 'standard that prevails in ~V~e~orum
community, and need not employ a 'national standard'."
As stated above the basic guideline for determining what is obscene is through
an evaluation of the material utilizing the forum community standard. In Smith v
United States, 97 S. Ct. 1756 (1977) the Court amplified its consideration of the
community standard when it stated that community staffdard~.~e.required to be
applied by the jury in accordance with its understanding of the 'tolerance of the
average person in the community. The result being that the jury.has the discretion
to determine what appeals to the prurient interests and what is patently offensive
in its community. '"State law cannot define the contemporary community standards
for appeal to the prurient interest and patent offensiveness that under Miller v
California are applied in determining whether or not material is obscene . . .
Though state legislatures are not completely foreclosed from setting substantive
limitations for obscenity cases, they cannot declare what community standards
shall be . . . "[Smith v United States {1759}]
The conduct regulated by the Texas Legislature is dJfined in the
Texas Penal Code Subchapter 43B, "Obscenity~'. The following is that portion of
Chapter 43 which regulate~ the sale, distribution and display of obscene material:
43.21. Definitions !
In this subchapter:
(1) "Obscene" means having as a whole a dominant theme that:
(A)
(B)
(C)
(2)
appeals to the prurient interest of the average person applying
contemporary community standards;
depicts or describes sexual conduct in a patently offensive way;
and
lacks serious literary, artistic, political, or scientific value.
"Material" means a book, magazine, newspaper, or other printed or written
material; a picture, drawing, photograph, motion picture, or other
pictorial representation; a play, dance, or performance; a statue or
other figure; a recording, transcription, or mechanical, chemical, or
electrical reproduction; or other article, equipment or machine.
-3-
(3)~.~"P_curient interest" means an interest in sexual conduct that goes sub-
stantially beyond customary limits of candor in description or represer?~
ation of such conduct. If it appears from the character of the material
or the circumstances of its dissemination that the subject matter is de-
signed for a specially susceptible audience, the appeal of the subject
matter shall be judged with reference to such aadience.
(4) "Distribute" means to transfer possession, whether, with or without
consi deration.
· {5) "Commercially distribute" means to transfer possession ~r valuable
cons i de rati on.
(6)
"Sexual"E'onduct" means:
(A) any contact between any part of the genitals of one person and
the mouth or anus of another person;
/~l any contact between the female sex. organ and the male sex organ;
any contact between a person's mouth or genitals and the anus or
genitals.of an animal or.fowl; or
(D) patently ol~fensive representations of masturbation or excretory
functions.4
43.22. Obscene Display of Distribution
(a)
A person commits an offense if he intentionally or knowingly displays
or distributes an obscene photograph, drawing, or similar visual
representation or other obscene material and is reckless about whether
a person is present who will be offended or alarmed by the display or
di stri buti on.
(b) An offense under this section is a Class C misdemeanor.
\
43.23. Con~nercial Obscenity ~
(a)
A person con, nits an offense if, knowing tJ~e content of the material:
(1) he sells, commercially distributes, con~qercially exhibits, or possesse
for sale, con~nercial distribution, or commercial e~hibition any obscec
materi al;
(2) he presents or directs an obscene play, dance, or performance or
participates in that portion of the ~.lay, dance, or performance that
makes it obscene; or
(3) he hires, employs, or otherwise uses a person under the age of 17
years to achieve any of the purposes set out in Subdivisions (1) and
(2) of this subsectdon.
(.b)
It is an affirmative defense to prosecution under this section that
the obscene material was possessed by a ~erson having scientific,
educational, governmental, or other similar justification.
(c)
An offense under this section is a Class B misdemeanor unless committed
under Subsection (a)(3) of this section, in which event it is a Class A
misdemeanor.
43.2~. Sale, Distribution, or Display of Har-ful Material to Hinor
(a) For purposes of this section;
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"Minor' means an individual younger than 17 years.
"Harmful"material" means material whose dominant theme taken as a
whole: :~ ~'
(A) appeals to the p. rurient interest of a minor, in sex, nudity,
or excretion;
(B) is patently offensive to prevailing standards in the adult
con~unity as a whole with respect to what is suitable for
minors; and '
'(0) is utterly without redeeming social value .for minors. "
(b)
A person conmits an offense if, knowing that the' material is harmful:
{1) and knowing the person is a minor, he sells, distributes,
exhibits, or possesses for sale, distribution, or-exhibition to
a minor harmful material;
{2} he displays harmful material and is reckless about whether a
minor is present who will be offended or alarmed by the display;
or
{3) he hires, employes, or uses a minor to do or accomplish or assist
in doing or accomplishing any of the acts prohibited in Subsection
(b)(l) of (b)(2) of this section.
(c)
It is a defense to prosecution under this section that:
{1) the sale, distribution, or exhibition was by a person having
scientific, educational, governmental, or other similar justifi-
cation; or
(2) the Sale, distribution, or exhibition was to a minor who was
accompanied by a consenting parent, guardian, or sPouse ....
(d) An offense under this section is a Class ~A misdemeanor unless it is
committed under Subsection (b~(3) of this section in which event it is
a felony of the third degree.* I '
The preceding has outlined the substantive limitations of that which can
be found obscene in the State of Texas. The enforcement of those sections of the
State Penal Code applying to obscene material is left to the discretion of the
District and County Attorneys.
The remainder of this report will concern the controls that the City may
i)~pose to regulate the adult-only industry through land use controls, licensing,' and
~asures to assure that minors will not be allowed to purchase or view the display
of Ipornographic material in commercial businesses.
THE HATIONAL PROBLEM/CITIES
Urban areas across the nation are beginning a crackdown on the growth of sex-
oriented businesses. Recent public outcries and n=.cional exposes have been forcing
new evaluations of existing pornography law. This renewed attack on pornography is
-5-
partiall~J~-__f~(L_uppa__t~Supreme Court decision in ¥0un,q v American Mini Theater.
This decision, affirming the City of Detroit's police power ability to zone aoult
entertainment, redefined the standards the community can use to appraise that
material which is found to be adult entertainment and protected by the 1st and
14th Amendments of the U: S. Constitution. The following exerpt from Youn9 v
An'erican Mini Theaters makes clear the-Supreme Court view of adult entertainment
and zoning: ' ' m '
Though the First Amendment prot~ects communication in the area of adult
motion pictures from suppression, the State may legitimately use the
content of such pictures as the basis for placing theaters exhibiting
them in a different classification from other motion picture theaters
for zoning purposes~ The City's interest in the present and future
character of i'ts neighborhoods adequately support the limitation
imposed . . . on the place where adult films may be exhibited.
As a result of..Young v American Mini Theaters, several cities have initiated
zoning ordinances similar to Detroit's to control the proliferation of sex industry
outlets into incompatible areas of city development. Kansas City, Hissouri and
Atlanta, Georgia, are examples.of cities recently implementing zoning ordinances
to control the adult entertainment Industry: These cities have'accepted '~
the fact that there is a large market for adult entertainment. By implementing and
enforcinq a zoning ordinance to ~ontrol site location choices to those sites meeting
Certain minimum requirements, these ci.ties have sanctioned the adult entertainment
industry. However,'t~is sanction does not entail a condonation of commercial sex
activities outside the control of land use planning activities.
The problems wi~h the proliferation of adult businesses in major urban areas ar
gre. ving, not only in the volume of outlets, but also in new types of adult business~.
Cities that have attempted to use zoning ordinances to define explicitly each
controlled adult entertainment business have found that the ordinances are subject
to constant update, as the adult entertainment industry implements new techniques
for the dissemination of its product. The following list illustrates some of the
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kind.~..f-~.,~.~ograpb~lt businesses that could have a b~)lghting effect upon 'a
neighborhood if allowed to grow uncontrolled. The list also points to the problem
attempting to define each new adult business..
Pornoqra~hi~ Adult Businesses
Adult .bookstores
Adult mini motion picture theater (peep shows)
Adult motion picture theaters
Artists body painting studios
Eating places with adult entertainment
Exotic photo studios
Lounges and bars, topless
Lounges and bars, bottomless
Massage parlor
Nude theater
Nude wrestling parlor
As cities strengthen laws dealing wi'th certain listed businesses, new businesses
providing the same or similar services have been invented by the industry. For
example, in B'irmingham, laws governing massage parlors were tightened forcing most to,
close.5 As a res'tilt, shoeshine shops, where you can lie d.own while getting your shoes
shined and providing the same servi~e as the massage parlor, were· op~ned. The-City ~
then forced to adopt another ordinance requiring that a person could not lie down
to get a shoeshine. Similar situations occurred in Boston when massage parlors were
under attack. A qui. ck metamorph, osis was made of' adult entertainment businesses
under the guise of sensitivity training parlors, nude wrestling studios and
exotic photography centers. These later generation businesses were clearly not
massage parlors, even though similar services were offered, and were not subject
to the massage parlor ordinances.
Two distinctly different zoning techniques haYe been used to regulate the adult
entertainment industry. They are:
The Boston,'Massachesetts approach. In 1974 Boston was the first city
in the nation to put its official stamp on the adult entertainment zone.
Boston created a special zoning category fo? adult bookstores, peep
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e
shows, x-rated movies and strip Joints. This zone was a special overlay
district applyin~ to ~nly Seven acres of the City's space. The over!ay
zone had two main purposes: {A) The City wanted to concentrate similar
adult entertainment uses into a single small area; and {B) the City
wanted to prevent the spread of these uses to other areas of the City.
The district ~ppro~ch has certain advantages over a case by case
zoning approach. Specific district boundaries are set and development
standards are established. These two items when taken together reduce
greatly the administrative cost when compared to a case by case condi-
tional Bi--specific use permit requirement. The limited confines of the
district boundary reduces the potential for new development. The district
approach also reduces the opportunity for arbitrary and subjective de-
cisions.
The overlay district offers the potential to evaluate the total public
service impact of adult uses. The concentration in a single area allows
for the review of relative cost and revenues to the City. Police costs
will certainly be higher, as will related traffic and parking costs.
These costs though, can be determined. Permits can be required and the
fees for these can reflect the true costs to the community.
The Detroit, Michigan approach. In 1972 Detroit implemented an ordinance
designed primarily to prevent the development of additional "skid-rows"..
It was found that Concentrations of various straight and pornographic
uses were generally determinates of the deterioration of surrounding areas.
Detroit has two objectives: (A) to separate typical "skid-row" uses from
each other; and (B) to keep these same uses separate from residential
areas. These objectives lead to a single policy of dispersing "skid-
~w" uses and spreading them throughout the con~ne~cial and industrial
areas of the City.
Afte~r"skid-row" uses had been determined,' defined and subjected to a
conditional permit process~ they were allo','ed in only certain zones
of the City and then only in sites meeting certain requirements.
These two te'chniques and adaptations to them are the only methods currently being
used to control the location of adult entertainment activities. The Supreme Court
in Youno v American Mini Theaters has upheld the a2~roach that Detroit has
implemented. 'Ilo test has'yet been made of the Boston m~thod of controlling the
spread of'~dult businesses. Recently the Boston "Com'~at Zone" (the seven
acre overlay district) has obtained some notoriety as being a failure, with social
and administrative costs exceeding a tolerable level.
Both Detroit 'and Boston have chosen land use controls as their primJry method
of regulating adult businesses. Both use cqincic=_ntally a licensing regulation.
-8-
Other cities s'uch as Santa Maria, California, have chosen licensing as their
primary approach to regulating adult businesses' Licensi. ng approaches have been
adopted in order to maintain certain minimum standards at places of adult entertain-
ment. The licensing mechanism is designed to regulate entertainment businesses .
which also provi'de food, alcoholi6 beverages or exhibition of' the human bod~. -
Li, censing-o~i~lines required performance standards and sets fees and required deposits
as guarantees of compliance with the standard.
ADULT ENTERTAINMENT IN AMARILLO
Several businesses in Amarillo cater either wholly or partially to the
adult-only market. The attached map, LOCATION OF ADULT ENTERTAINMENT IN AMARILLO,
illustrates the general location of the majority of businesses whose
activities include catering to th.e..adult-only market. As the attached
map indicates, adult businesses in Amarillo have generally tended to congregate
into several areas in a strip fashion along major thoroughfares.
The Amarillo Police Department in a statistical analysis of street crimes
(rape, robbery, all assaults, theft from persons, auto burglary, driving under the
influence, public intoxica'tion, vandalism and illegal weapons) found that the
incidence of street crimes was significantly greater around the concentrations of
adult-only businesses than the overall City average. The Police Department went
further in their analysis and noted that these street crimes were 2-1/2 times the
City average in the immediate vicinity of alcohol =nly adult businesses, and 1-1/2
times the City average in~nediately surrounding businesses featuring alcohol and
semi-nude entertainment. In reviewing these facts relative to crime in the vicinity
of adult businesses, the reader should be aware that adult-only establishments,
especially alcohol only lounges, have tended to cc~centrate in several areas
while lounges featuring semi-nude entertainment are fewer in numJ~er and have
tended to somewhat isolate themselves from other a~Jult-only establishments.
-g_
Outlets for adult-only material in the City include several book stores, drug
stores, grocery stores, etc., with sections of b~oks ~a~'J-~a'g~'z~ine~ featuring F.'~ity
and nonexplicit sexual activity. Pornographic publications featuring nudity with
explicit sexual activity, are available within the City in only seven known loca-
tions, three being adult theaters with books, magazines, novelties and peep shows.
These are dispersed linea'li'y' across the CBD and its fringe. There are also four
book stores that devote space to p~blications featuring pornography with explicit '
sexual activity. No attempt has been made to locate all activities featuring, minimal
amounts of pornographic publications.
As can be discerned from this overview of the extent of pornography .distribu-
tion within the City, our current problem lis- not great..However, the following
paraphrased statement concerning Mason City, Iowa, illustrates the potential for
growth of the adult entertainment industry.
Between 1963 and 1964 go-go dancers gradually began to appear in l~he
lounges and bars of the town. By 1965 the dancers were topless. In
1973 the City received an application for its first adult moviehouse
license. The license was refused (probably by an arbitrary and subjective
decision). The applicant filed a judicial appeal and won the case forcing
the City to grant the license. In 1973. an adult book store opened, complete
with sex novelties and movies. Also in 1973 a popula.r lounge hired totally
nude dancers. Four competitors ~o, on followed suit. Finally the City
gained its first massage parlor.U ~
There is no reason t0 assume that Amarillo will be exempt from a growth of
adult oriented businesses similar to Mason City. The lack of any valid City
mechanism to control and regulate the anticipated growth could lead to
(a) concentrations of adult entertainment businesses creating a crime incidence
condition equal to or greater than thJ' current situation around concentrations
of alcohol only businesses, and (b) a proliferation of adult entertainment
b':siF.£'_ses in and around residential areas and other family or juvenile oriented
activities..
-ll -
POSSIBLE CONTROL MECHANISMS OF ADULT BUSINESSES IN AMARILLO
Adult businesses in Amarillo are com~r¥~lY~-~Yd'v-e-r'n's'; lounges, lounge.t with
semi-nude entertainment, adult bookstores and adult theaters. Various state and
local laws currently regulate to certain extents each of these uses. The Texas
Liquor Control Act regulates all businesses selling alcoholic, beverages, after
local option-approva.l~,~+hrough a ~licensing procedure. These same businesses must
also be licensed by the City and must conform to zoning and occupancy requirements:
Those businesses that feature semi-nude entertainment are also controlled by
Penal Code Section 21.07, 21.08, and 43.23 (Public Lewdness, Indecent Exposure,
and Commercial Obscenity) and City Ordinance 13.29 (Operation Regulations; grounds
for revocation, violations of Dance Establishments). Purveyors 'of adult printed
and celluloid material are controlled only by Pena'l Code Sections 43.22, 42.23,
and 43.24 and general zoning and occupancy requirements.
While the above state and local ordinances work to regulate portions of the
adult entertainment industry, they are at best a piecemeal approach. For example,
the enforcement of Chapters 21 and 43B, of the Penal Code through the appropriate .
court, is generally a slow and tedious proce, ss requiring manpower that is not avail-
able for this type of low priority victimless crime. The maintenance of the minimu:
requirements of the Texas Liquor Control Act and the various local laws regulating
the sale of alcoholic beverages are only a means to maintain certain standards of
operation in taverns, lounges, etc. The general z~ning regulations which currently
restrict adult businesses are not designed for the particular land use impacts
resulting from the adult businesses. These impacts range from late night hours of
operation and resulting noise, traffic, lighting, etc., to increases in crime rates
immediately surrounding the businesses.
Bypassing the intrinsic limitations of enforce .ment of the Penal Code, an apprc
to a more definite control of these businesses is through a strengthening of zoninc
regulations specifically defined to moderate the land use impact of adult-only
-12-
businesses. Coincidentally with the improved zoning regulations, a license and
permit mechanism can be implemented. This mechanism can'~et' and r~quire cc~pliance
with minimum standards of.operation for various adult businesses and recover actual
or expected expenses incurred in their enforcement through annual permit fees. Thes
fees can reinburse the City for the added costs of police patrols, improved streets,
additional street lighting to reduce accident and crime potential, .routine City Dep~
merit inspection, etc.
These measures would generally be applied to all adult-only businesses. No
.infr. ingemenl~, upon their constitutional rights would result from compliance '' '
with a zoning and licensing mechanism designed to minimize the land use and social
impacts of adult-only businesses.
Zoning regulations specifically designed to restrict adult-only businesses Ean
serve the following purposeS:
I. Assure a land use compatability between the adult use and the
surrounding land use. ,,
2. Require that certain minimum density standards for adult uses are
mai ntai ned.
3, Require the amortized termination of those adult uses not currently
meeting either or both of the preEeeding zoning purposes.
Licensing adult-only businesses can serve the following purposes:
1. Maintain a reco~d of business, location, owner, etc.
2. Assure that certain performance requirements are met, such as hours
of operation, maintenance of employment standards and compliance
with all laws governing material sold or displayed by the business.
3. Provide a method by which the City can recoup any expenditures for
public services required above the city average exclusive of the
licensed business type.
Performance standards can include a provision for administrative revocation o~
an adult business license for any noncomplian'ce with a performance
standard. Tni~ revocation of license would not necessarily be supported by any
conviction or sta'te criminal charge against the license'holder. The basis for the
revocation would be for violation of the performance standards as defined ex~iicit
-13-
in the City Code's standards for operations of an adult business. Performance· stand
would of course be required to vary in content relative to controlled adult business
AdUlt business licenses should not attempt to regulate the land use effect of
the use on the neighborhood or community, but should be utilized to assure perform-
ance at a certain ~tandard, to maintain an accurate record of business
locations, and to provide fees to the City t~or s~rvices above the average. By
maintaining a clear distinction~between the requirements of a license and the zoning
ordinance the entire control mechanism is strengthened.
T~he preceeding portion of this section 'has dealt~ with the regulation of busines:
that totally restrict entry, sale, and viewing of products to adults only. Methods
control the ease of view of ~generally distributed pornographic material are 'numerous
and not detailed explicitly in this report. Briefly though, methods to control the
display of this material range from requiring the display to be in separate rooms
ivith an enforceable and enforced restricted admittance, to simply cov~ing the entir
publication with an opaque slip cover with the publication's name printed on the
cover. The control of the display and sale of pornographic material through a City
Ordinance licensing mechanism would work to protect minors from harmful material
{Section 43.24} and adults who would be offended by certain displayslof pornographic
materi.al (Section 43.22) .qenera. il¥ available for the public's view.
SU~q!4ARY AND FINDING
The analysis of the impacts of adult-only businesses upon surrounding land
uses indicates that these businesses do have effects that can be distinguished
from other uses allowed in like zoning districts. The following identifies
causal factors isolated in this preliminary analysis:
1. The .Ar,,eFSilo Police Department, s statistical survey of street crin~
in the vicinity of adult-only business indicates that crime rates
are considerably above the City's average imr, ediately surrounding
the adult-only businesses analyzed.
-14-
2. Concentrations of these adult-only activities have detrimental
effects upon surrounding residential and commercial activities.
These effects are caused by (a) the noise, lighting and traffic
generated by the pedestrian and vehicular traffic frequenting these
businesses whose primary hours of operation are from late evening
to late night, (b) the increased opportunity for "street crimes" in
areas with high pedestrian traffic, and (c) the tendency to avoid
areas where adult businesses {especially pornographic) are established.
This a'voidance and other factors can lead to the deterioration of m
surrounding commercial and residential activities.
Other cities have noted these effects of adult-only businesses and have attempte
re,dies to the problem. BOston, Massachusetts, has concentrated all adult uses into
a single area of the City_. Detroit, Michigan, has dispersed adult uses throughout
the city to sites that meet certain minimum land use requirements. Both of these
cities have adopted zoning ordinances that restrict location choices of adult book
stores, theaters, cabarets, etc. Their ordinances are limited to those activities
that definitely do not fall under penal code control. The City of Los Angeles study
on adult entertainment includes a consideration for the zoning control of other
adult oriented' activities including massage parlors, nude modeling stuJ'ios, adult
motels, arcades, etc. Los Angeles has disregarded the question of legitimacy and
has suggested zoning those adult businesses as recognized existing land uses.
Detroit has implemented an ordinance which requires that adult entertainment
businesses not be located within 500 feet of residentially zoned areas, or within
lOOO feet of another regulated use. In Amarillo, ad'Jlt uses are currently allowed
in general retail and all less restrictive zoning districts. If Amarillo adopted
an ordinance with space requirements between regulaced uses and residential zones
similar to that of Detroit, the number of potential sites for adult businesses
would be severely limited. This method, limiting seYerely the potential site choices
of adult businesses, would probably not be upheld ~:' the Courts. The limitation
of site choices would be caused by the narrow co~.~c.,.~rcial strip developments less
than 500 feet wide a.long most of Amarillo's major t9roughfares. Also',-this approac!
would probably tend to concentrate adult activities into the central business
district and a few industrial areas.
-15-
RECOMMENDATIONS FOR THE CONTROL OF ADULT-ONLY BUSINESSES IN AMARILLO
If the Planning and Zoning' Commission and City Commission should find from the
data presented in this report that there exists sufficient need to control adult-
only businesses and businesses which display generally circulated pornographic
material, the Planning Department would recommend the following:
A. Any zoning ordinance amendments proposed to regulate-~dult businesses should
not attempt to define individual activities but should instead regulate the site
location choices of all businesses that restrict sale, display or entry based
upon a minimum age, and not consider the legitimacy of the 'use.
B. The potential site location choices for adult-only uses should be dispersed
rather than concentrated. This distance should be measured radially from
property line to property line and should be at least 1,000 feet. Requirements
designed to maintain the integrity of residential zones and other areas where the
there is considerable traffic in juvenile or family oriented activities should
be adequate for the purpose but should not be oYerly restrictive.
C. Should the City develop amendments to the Code of Ordinances designed to control
the site location choices of adult entertainmenz businesses, it may be desirable
to specify an amortized termination schedule for any ex~sting adult business
which does not meet the minimum site location s-.andards as specified in the
Ordinance.
D. Concurrent with any zoning ordinance revisions ~esigned to control adult uses,
a permit and license mechanism should' also be d~_veloped. The minimum
operational standards specified by the license '~'ill vary according to the
type of business to be regulated.
E. Any zoning ordinance amendments concerned with =.dult businesses should provide
provisions to regulate s':gns and similar form~ ~f advertising.
F. The City Commission should encourage a vigoro'~ enforcement of the State Penal
Code to remove illegitimate uses. Especially i-~portant is that portion of the
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Penal Code which protects minors from all pornographic material. The City
should impose specific amendments to the Code of Ordinances requiring businesses
publicly displaying generally circulated pornographic material to prohibit
minors, by an enforced physical barrier, from viewing or purchasing.pornographic
material. ..
If the City Commission, following a recommendation from the Planning and
Zoning Commission, finds the necessity to control adult-only businesses and the
public display of generally 'circulated pornographic material, all amendments to
the Code of Ordinances should be prepared as a total package and submitted to
the Planning and Zoning Commission for preliminary review, before action by the
City Commission. The Planning and Zoning Commission review should have the
intention of assuring the purpose and continuity of each amendment to the overall
goal of regulating these adult businesses and adult material displays.
6
Zoning for the Pornographic Arts, City Development Department, August, 1976,
Kansas City, Missouri
The c~.ses reviJwed in depth were:
A. Young v American Mini Theaters, Inc., 96 S. Ct. 2440 {lg76). This was the
". Supreme Court review of the City of Detroit zoning ordinance which regulated
{a) the proximity of adult uses to residential zones, {b) the proximity of
adult uses to other areas where heavy traffic or concentrations of minors
were found and (c) the density of adult businesses. The Court held that a
city has the authority to control the location and density of adult entertain-
ment businesses based on its police power right and duty to protect the
health, safety and welfare of its citizenry.
Bo
Miller v California, 93 S. Ct. 2607 (1973). This decision laid down the
most recent standard for determining what is obscene. This decision is the
basis for the Texas Penal Code Chapter 43, Public Indecency.
Ce
Smith v United States, 97 S. Ct. 1756 (1977), Paris Adult Theatre I v Slaton,
93 S. Ct. 2629 (1973), and Roth v United States, 77, S. Ct. 1304 (1957).
These earlier decisions were reviewed in order to determine the history of
restrictions upon 1st Amendment guarantees. This review revealed that in
effect the Court is ruling on the controversial problem of obscenity and
state community standards determining prurient appeal and patent offensiveness
on a case by case basis.
Amended by Act 1975, 64th Leg., p 372, Ch. 163, ~ l, eff. September l, 1975.
Acts 1973, 63rd Leg.,p 883, Ch. 399, ~ l, eff. January 1, 1974.
U.S. News & World Report, September 13, 1976, p. 76.
Time, April 5, 1976.
RELATION OF CRIMINAL ACTIVITY
AND ADULT.BUSINESSES
Prepared by the City of phoenix
Planning Department
May, 1979
ADULT BUSINESS STUDY
INTRoDuCTION
May 25, 1979
A necessary premise for regulating adult businesses by zoning is that a land use
relation or impa~ results from th/s form of business. Many zoning ordinances
throughout the nation now have provisions based on one of t~o. ba.~ic approaches to
control the location of adult businesses. One approach, sometimes known as the
Detroit Model, divides or prevents the concentration of adult'businesses in an
area. A certain distance from residential neighborhoods, churches, and schools
is also maintained. Another approach, or the Boston Mod~l, fosters the concen-
tration of adult businesses in one area of the City,
The latter approach has resulted in the more noteworthy problems. For instance,
in Boston's concentrated adult business area there is control of signs, upgrading
of streets and sidewalks, renovation of store fron~s, and even the construction
of a new park. This scheme has not affected the high n,~her of stabbings, murders.
and muggings which take place in the district.
Also, at one time, New York City had concentrated adult business districts.
However, the police department reported that crime complaints were almost 7~o
higher on police posts with adult businesses, as opposed to posts without them.
The reports showed higher rates of rape, robbery and assault. In one adult busine
concentration around Times Square, sales taxes dr=pped by 43% in a two-year period
due to the loss of 2.5 times as many retail lobs as the rest of the City.
New York soon dropped 'its original adult business ordinance and adopted an amend-
mant ~h/ch was patterned after the Derroit'~odel. The new ordinance also
suep further than an~ other in the nation when suEdes=ion ~as made to amortize ali
nonconforming adult businesses within one year. ihus, up ~o 80~ of the existing
businesses were ~erminated.
-2-
In the Phoenix Zoning Ordinance an amendment concerning adult businesses beczme
effective on November 8, 1977. It too is patterned after the Detroit model.
Briefly, the amendment in Section 417 states that:
1. No adult business is to be within 1,000 feet of any _use in the same
category.
2. An adult business is not permitted within 500 feet of a school or a
residential zone unless approved by City Council and area residents.
A Petition whichis signed by 51% of the residents in the
radius who do not object must be filed and be verified by the Planning
Director. After the petition is completed the City Council=my
consider waiving the 5~0-foot requirement.
Adult businesses are being treated as a land use issue by their relatibnship to
impacts on their surrounding properties and on adjacent neighborhoods. Are the
crime impacts noted in Boston and New York's districts directly related ~o the
adult business being there~ or to some other societal variables in the neighbor-
hood? Are they identifiable, mhd thus a probable cause for negative neighborhood
reactions to nearby adult'businesses?
The Phoenix Ordinance was based on two hypotheses: first, that there are direct
impacts which uniquely relate to this class of land use; and second, that there
are iadire¢~, but equally potent, attitudinal conc~.--n$ which result fr~mTr~.~i~ity
to an adult business. Examples of the former are ~ssible traffic congestion,
unusual hours of operation, litter, noise, and criminal activity. Illustrating
th~ latter is subs[antial testimony that has indicated that many neighborhood
residents dislike l~ving near an area containing an adult business. Also,
financial institutions take nearby adult businesse~ into account when financing
Finally, people's perceptions of criminal activity is
reinforced by a greater incidence of sexual crimes in areas or commercial
districts containing adult businesses.
In this study we .~i. 11 show that there is a relationship between arrests for sexual
crimes and locations of'adult businesses. This relation will correlate '~rith
concerns which have been expressed by residents of nearby residential neTghbor-
hoods of the nature of crimes associated with adult businesses. Sex crimes appear
to generate substantial fears for the safety of'children, women, and neighborhoods
in. general. Their association.with adult businesses generates negative images (as
well as real or portential hazards) and'results in a lowering of the desirability
and livability of an impacted neighborhood.
This study specifically shows tha~ there is a higher amount of sex offenses
committed in neighborhoods in Phoenix containing adult businesses as opposed to
neighborhoods without them. In this project three study areas, were chosen -- neighbc
with adult businesses, and three control areas -- neighborhoods without adult busin~
~hich were paired to certain population and land use characteristics. The amount
property crimes, violent crimes, and sex offeuses from the year 1978 are compared
each study and control area.
TH~ STUDY AND CONTROL AREAS
Three different study areas containing adult businesses were selected to collect
crime data. The east side of Central Avenue was chosen for the location of two
study areas, while the west side has the third stud7 area. Appendix I descrTbes
a more detailed process of how each study area was derived.
A control area has no adult business, but generally spaa99~g, has s~ilar popula-
tion characteristics 'of a matched study area in te~-~...s of:
Number ofresidents
Median family income
Percentage of non-white population
Median age of' the population
Percentage of dwelling units built since 1950
Percentage Of acreage used residentially and nonJresidentially
Appendix II states a more detailed process of h6w each control area was derived.
Adult business locations are based on information furnished by the Phoenix Police
Department and verified by the Planning Department.
TKE STUDY AND CONTROL AREA LOCATIONS
STUDY AR~a` I
Roosevelt Street -,Oak Street
16th Street - 32nd Street
CONTROL AREA I
Starting at 47th Avenue, east on Osborn Road.
South on 35th Avenue, west on Thomas Road,
South on 39th Avenue, West on Roosevelt Str~
North on 43rd Avenue, West on McDowell Road,
· and North on 47th Avenue, to '~he poin= of
beginning.
STUDY AREA %][
Oak Street - Osborn R~ad
$2nd Street - 40th Street
CONTROL AREA II
Osborn Road - Campbell Avenue
32nd.Street - 40th.Street.
STUDY AREA
Missouri Avenue - Campbell AvenUe
19th Avenue - 27th Avenue
C0h'fROL AREA III
Missouri Avenue - Campbell Avenua
27th Avenue - 35th Avenue ....
Figure 1, following shows the boundaries of the three study and control areas.
· J ( I..L
', ko#'r Fi($ ti *
· ' ~
~IGURE I
3NTRGL AREA
I
I
;
I
Aa£A 31 (STUOY ARE,
I !
i I
I
C ACTU $
o
(CONTROL A~A Z) o~
I 1
Study Area I contains two square, mi_%e~ and one of the City's larger concentra-
tions of adult businesses. These locations are: ~1702 E. McDowell Road; 2339.E...
McDowell Road; 2438 E. McDowei1 Road, and 3155 E. McDowell Road.
The matching population characteristics of Study and Control Area I are listed
below in Table II,-- (Appendix III provides a more detailed process of how this
data was derived.) ...........................
TABLE II
POPULATION CHARACTERISTICS OF STUDY'AND
CONTROL AREA I
Building/ Median
Non-White 1950-1970 Income A~e
Land Use
Commercia 1/Re sidentia
Study I 2~% 57% $7,675 29 3'1% 69%
Control I 24% 93% $9,885 26 38% 52%
The only substantial population characteristic differences in these two areas are
in the age of homes built between 1950 and 1970. The concentrated adult business
district has a little over half of its homes built after 1950. 'Whereas the con:roi
arem has almost 93% of its housing built after 1950.
Study Area II is one square mile on the east side of the Ci[7, and contains only
one adult business within the square mile, at 3640 East Thomas Road. Its control
area is to the north side of the Study Area.
The comparison of population characteristics are sh~n in Table III.
POPIII~TION CI-~I~CTERISTICS 0F STUDY AND
CONTROL AREA II
Building/ Median 'Imnd Use
% Non-White 1950-1970 Income. .A~e Commercial/Residential
Study II 7.4 88.0 $10,779 36 187.
Control .ii 4.4 " 92.5 $12,013 38 117. 897.
Study Area III also contains one adult business at 2103 W. Camelback Road. It is
one squaTe mile located on the west side of the 'ti'ry. Its Control Area is directly
to the west. The comparison of population characteristics are shown below:
TABLE IV
POPUIATION CHARACTERISTICS OF STUDY AND
% Non-~nite
CONTROL AREA III
Building/ }~dian
1950-1970 Income ~e
~d Use
Commercial/Residentia~
S:udy III 8.2 83% $9,829 29 29% 717.
Control III 8.8 93% 10,559 28 28% 72%
~ 0
0
Z
0
CONCLUSIONS
· Table V Pro?erty, Violent~ and Sex Crimes in Selected Study Areas--19781 is a
: -
tabulation ~f the ~umbez o£ crime~ committed and the rate of those crimes pew
1,000 people living in each area. This ~able Es on the following page.
There appears to be a significantly great~-difference between the study and
control areas for sex crimes than for either property or violent crimes. The
following table illustrates a comparison of the ratio of the crime rate of the
study area tn the control area:
TABLE VI
CRLX~ RATES AS A PERCENTAGE OF STUDY AREA TO COh~ROL AREA
Study Property Violent
Area Crimes Crimes
II
III
Avera.~e
1477o
173
108
1437.
144%
83
86
104%
Sex
Crimes
1135%
277
405
606%
Sex Crimes
fLess Indecent
358%
160
178
232%
It is observed that there are about 40% more proper~y crimes and about the
rate of violent crimes per 1,000 persons in the Study Areas as compared to the
Control Areas.
On ibm other hand there is an average of six ti~es the sex crime rate in the
Study Areas as compared wi~h the Control Areas. A!chough the majority of se>:
~ab!e V l~roDerty, Violent, and Sex Crimes in Selected Study Arens--197R,
derived from information provided by the City of Phoenix Police Department's Crime
Analysis Unit and Planning and Research Bureau. The data from these two sections
w~s compiled by adding the number by type of crimes committed in police grids, ~%i
are quarter mile neighborhoods. Crimes are based on arrest records and do not ref
ultimate convictions. It has been assumed that conviction rates will be proportio
~o arres~ rates.
crimes are Indecent Exposure, the fourth column illustrates that the remainder
%, of the sex crimes also exhibit a significantly Kigher rate in the study ar~=z.
'.' ' A detective from the police department stated that most indecent exposure crimes
were c0mitted on adult business premises. An example of this fi~dimg is in
Study Area I. In'that location, 89~ of the reported indecent exposure crimes
were committed at the addresses of adult businesses.
~here there is a concentration of adult businesses, such as in Study Area I, the
difference in sex offense rates is most significant. As stated earlier in the
report this location has four adult businesses which are less than 1000 feet away
from each other and less than 500 feet away from a residential district. There is
also a higher number of sex offenses committed--84 more crimes than in Study Area
II, and 56 more crimes than in Study Area III. Similarly, when compared to its
Control Area, the sex crime rate, per 1,000 residences is over 11 ~imes as great in
~tudy Area I. I~ the remaining study areas, which each contain a sLngle adult
business, ~heir rates are four and almost three times as .great.
APPENDIX I
ESTABLIS~.~NT OF S~DY AREA BOUA~ARTM:-S
- - The process of defining the Study Area Boundaries was conducted in the following
~lanner:
1.
3.
Locations of adult businesses in Phoenix Were plotted.
The primary coucendration of adult businesses was id%n~ified.
Preliminary decision w-as ~ade to choose three study areas based on
concentration and geographic isolation from each ocher.
4. Establishment of boundaries for each Study Area so that the .
adult businesses were approximately centered in each study area, and
so that each Study Area had an area of at least one square mile, but not
more than two square miles.
APPENDIX II
ESTABLISHmeNT OF CONTROL AREA BOL~ARIES '
The process of defining the Control Area bouhdaries was conducted in the following
manner:
1. Identificatio~ of potential conr_rol areas based on r_he absence of
adult businesses.
2. Delineation of possible Control Areas equal in size ~o the Study Areas.
Determination of population and land use characteristics of each possible
t~nt-rol area using the same weighted-proportionality method used for :ha
Study Areas (See Appendix III for Population Characterisuics and method-
ology).
~. Selection of a Control Area to match each Study Area as closely as
possible in size, number of residents, and all other selected character-
istics listed in Appendix III.
APFENDIX III
}~THODOLOGY OF WEIGHTING P0-~JV--&T!ON C',%%P.~CTEP. iSTIo. S OF STUDY AND CONTROL AREAS
· -. The characteristics used /n weighting ~he s~m~larities between ~ha £~udy and
Control areas were:
1. Percentage non-white population
'2. Percentage of dwelling units built since 1950
3. Median income
4. Median age of the population
5. Percentage of acreage used residentially
Information about the above characteristics was available'at the Centus TrAct level
Since the Study Area boundaries did not always align with Census Tract boundaries,
necessary to "average" Census Tract values to simulate the characaaris~¥cs of the
Study Areas. The contribution of each Census Tract characteristic va'Iue was mar. ha~
mat~cal!y weighted, proportional to the amount of population that the Census Tract
contributed to the Study Area population. Number 5~ or the per=enrage of. acreage
residentially, was attributed p~opor~ionally to the geographic area rather than
pgpulaZion.
The weighting of each Study and Control Area is tabulated in the following table:
(
~January Z6,~T977~' Calenclar ~ 23
{t'/60137'IzRy
~-~endr.~n'.e o.f the ~onf.~ Rezol. ut;~.on pu.~utmt, t;o Secr;.on 200 of the .¥~z~
Ci, Oj Cha~e~ ~eZ~ng to uo~ous sections oonce~n-~ng th; defCn;t'~on of a~d
~,q,.Za~'~on of a~'tt u~es.
These proposed amendments separate adult uses from the general use groups
and s~gcifica11¥ designate and thereby li~it the districts in which adult uses
are permitted.
These amen~nent~ de~ine and ~stabltsh regulations for adult uses. The def-
initions create five categories of adult uses: adult bookstore, adult ~o:ion
picture theatres, adult "topless'° entertainment facilities, adult coin operated
entertainment facilities and adult physical culture establishments. By creatim
separate definitions for these adult uses it ts no~ possible to distinguish tn -
the Zoning Resolution adult uses an~ other uses. ~ithout such definitions adul'
uses were for all purposes treated the same as their non-adult counterparts and
thus, allowed to locate in any zoning district where the general use was permit'
In conjunction ~ith the estab]ishmeot of the d~ztricts per. it:lng adult us
these amendments a]so set forth: cont~ls on the number, ~oca:ion an~ concentra
of adult uses within any district; procedures for terminating or amortizing tho
adult uses which do not comply with the locatt~ requirements; limits on permi
concentration; sign regulations and specia! permits for the Board of Standards
Appeals and the City Planning Commission. -'
The impact of these amendments ~ill be to reduce existing concentrations
of adult uses and to prevent future concentrations, thereby substantially reduc
the adverse economic and social effects ~hat these concentrations produce. At
same time, adult uses will be prevented from disrupting residential neighborhoc
by regulations requiring all adult uses to be located at least £J3 feet from tt
nearest residence district boundary.
F2EC ~"IVED ~'~
· .-,. 3 !.'.:?
COU;~pF .LFT, C.~:~Z r'j CFF;C~
¢ ¢
Public Heartnq
On ~ovember 10, lg76 (Cal. 12) the Cea~tsston scheduled a PUBLIC HE^RI,~G
on the proposed amendments. The publlc hearing was held on Oecember 1, 1976
Humerous speakers appeared in favor of the proposed amendments including.
a Congressman, two Councilmen, the Otrector of the Mayor's Mtdtown Action
Office,-the Director of the Mayor's Mtdtown Law Enforcement Task Force, the
Chairperson of the Zoning Comittee of Coat, unity Board ~6-tn Manhattan, the
Chairperson of the Zoning Committee of'Community Board #2 in Hanhattan, the
E. xecuti~e Director of the Citizens. Housing and Planning Council, the Chair=.,~:
of the Mayor's Midtown Citizens Co~nittee, the Executive Director of the
League of )le~ York Theaters, the Executive Director of the West Site
tion, a founder of Phoenix House Foundation ~nc. and former Deputy Co~rnissio~
of New York City's Addiction Services Agency, the Vice-President of the Rial:
Action Association, the Executive Director of the 42nd Street Redevelopment
Corporation, the Executive Director the Broadway Association, the President
of'the East Side Association, and representatives of Actors Equity, Cc~-
munity Board~ #4 and a8 in Manhattan, the IATSE and' Projectionists Unicn
Local 3~6, the Hew York Sportswear Association and the Fashion Capital of t~
'World Inc., the H~dtown Precinct Con~nunity Council, the 34th Street ~i'dtcn~n
Association, the Site 9 Tenants Cc..-rnittee, the Hunicipal Art Society, Volu~:
to Improve Third and Lexington, Restaurant Row, the ~est A6th Street ~lock
Association, the Setter Brooklyn Co.~x~ittee, Group Health Inc., the Statler
Hilton, several West Sid~ restaur~nteurs and several West Side 'religicus i~
tions.
Hany of the speakers were cc~cerned with the blighting effect t~zt the
concentration of adult uses has ~ad o~ the West Side of Hanhattan. Repres('
of ~anhattan's East Side also voiced their approval of the amendments. Ad:
uses have by no means reached the sa~e concentrations on the East Site but
several small :oncentrations do exist there, and these speakers stated that
the existing zoning regulations :osed no barrier to further intrusic~s.
Dr. Rosenthal, Psychiatrist, for:net Deputy Co~Tnissioner of ~ew York C'
Rddiction Services Agency a~d i::~der of Phoenix House - the Ci~7'~ ~or -
dential addict reheh:litation p~tgra~ said that the gro.~th of adult uses
"... a direc~ bearing upon :he ~.her of younq People who be~e
.... to heroin or dependent upon other drugs.'
¢
He described the 'adult entertain-
merit" business as parasitic, attracting and victimizing adolescents, breeding
teenage and homosexual prostitution and addiction. Dr. Rosentha! further stat
'... we have every right to limit or disperse them [adult uses] so that the
pathological matrix is destroyed. Zoning is a reasonable instrument for this
purpose. It's the City's means of protecting its citizens from conditions
dangerous to health and safety or which threaten the con~nuntty'.s.general welfa
Speakers in opposition to the proposed amendment included the District
Attorney of Staten Island, a Councilman, the Chairman of Co~unity Board
in Manhattan, the pu.rported operator of several m~sage pa~lorsl-representativ
of the Hew York Ctvtl Liberties Union, two Staten Island Councilman, the Inde-
pendent Theater Own'ers Association, the New York Society of Hedical Hasseurs,
the Oakwood Civic A~.~ociation, the Turtle Bay Association, the Staten Island
Better Ftims Councii, the Civic Congress of Staten Island, the Ne~ Oorp High
School P.T.A., the Staten island Federation of Parent Teacher Associations,
the Hew Oorp Central Civic Association, COYOTE, the Co~ittee - Womens Watch
City~ide, the Staten Island Chamber of Con~nerce, the Feminist Party, the Medi:
Workshop, Citicorp and several East Side religious institutions. The majorit:
of speakers in opposition, those fr~m Staten Island and the East Side, spoke
against the amendment because it vould continue to permit, adult uses in distr
near their communities. Others rai~ed questions concerning the constitutiona
of the proposal.
~heSe speakers..te:o~nded :~at'adult uses not be permitted in "CR" dis:
nor in C4-1 districts. ~¥he Co~isslon has agreed to studytheselchanges.
District Attorney. of. Statenlslan~ questioned whether~the a~endment might co~
with certain, provisions o~;sta:e ]aw~. The Con~ission has modified, as discm
below,· the proposal to resolve'a6y such conflict. The~hearing ~as closed.
Backoround
For the past several years )(e~ York City, like many other major A~erica
cities, has been faced with the ~robl~n of proliferating adult entertain-
ment land uses which have had a celeterious effect on both the business and
residential segments of the c~.-~,,=nity. The City has attempted to deal with
these uses through criminal enfor:e~,.,ent. Through agencies s~ch as the Dist:
Attorney and the I. ltdtown Law Enft,ce~nent Task Force, the Ctt7 is'confrontin~
aspects of land 'uses which ~ay ~e Illegal. H¢~evPr,.lt has bec_*~:e a~parent
~ 76C1~7
'-enforcement.. techniques, whtle extremely useful, will not be c~pletely success
In and of themselves' The City therefore began..evaluattng. · . ..-°ther techniques tt
which it could dea! dtrectly with these land uses.
In January 1976~ the Ctty Planning Comisslon and the Board of Estimate
implemented zoning measures which dealt with one aspect of adult entertalnmen'
uses, i.e., the expansion o~ Use Group 9,*phystcal culture activities in the
city.. At that timeD'the OffJ~a of Htdtown Planning and 0evelopment and the
City Planning Con~ntsstoneade a con~itment to the members of the Board of
£stimate that~rithtn one year's time, ctty~ide legislation ~ould be drafted
which would be directed at regulating and controlling these land uses.
· Throughout the year, the alternative techniques being implemented or ~xa
by Boston,'Oetroit, Hinneapolts, Dallas and Atlantic City have been studied.
The ob3ecttve was to find a solution that would combine the best efforts of
all of these cities' in order to provide New York with a sophisticated and
effective zoningamendment.
The analysis of these other efforts indicates that ~wo primary methods
have been used by other cities to control the proliferation of adult enter-
tainment land uses. The first method, which is used by the City of Boston,
is that of concentrating adult land uses within a single zoning district.
Discussion and examination of this concentration method and a recent analysi~
of its impact on the City of Boston has sho~n that this is not a successful
zoning approach. Statistics indicate that the i~lementation of this zonin~
method in Boston has resulted in an increase in both the crime ~te of the
Boston Business and Entertainment district and an increase in the vacancy r~
of the surrounding office buildings. For these reasons and because of the
different spatial and social characteristics between [tew Yor~ City an: Bost:
the Commission has concluded that this method could not'be successfully a~a:
for use in ~ew York City.
Simultaneously the City of ~etroit has moved in a different direction.
Detroit has attempted to control the problem by restricting the number of
districts in which these uses c:uld locate, and, within the allowable distr
limiting the concentration level of these uses. This method prevents an tv
whelming concentration of adult land uses in any one area of the City of
Detroit. On June 2q, lg76 t~e ]ntted States Supreme C:urt in the c~se of
v. The American Mini Theatre !~:.. by a vote of 5-~, reversed
' da:ist(~ and held tho, a ct,y( d th~ right tO regular: and con,roi adult
- -- - ..... land usei-ls a separate and distinct use. The court further held that such
uses could be prohibited from areas adjacent.to residential neighborhoods aaa
that the City of Detroit had shown a compelling state interest sufficient to
validate the restrtc{tons imposed upon otherwise pmte~ted s~eech activities.
Cons ~a tion ..
In weighing the proposed adult use regulations for H~ York City, the
C~ission carefully studied the opinions of ~e Supr~e Court Justices in t)
Youn~ case -- paying particular attention to the First ~en~ent issues dtsct
~erein. ~at decision encouraged cities to use ~eir traditional land use
police p~ers of separating incompatible uses, even though this ~ght i~ose
' different regulations on an' adult cin~a ~r ~,mple 'than It would o~ a gener
~in~. ~e Cou~t ~e~ed'to say]that 'as :long as.the ~ro~osjd l'a~d :b;e ~ont~
affo~ed a reasonable ~pportunity for an -adult messmge to' ~a~ ~n ~adult audi
_. such exercise, of the local land use'police poweff would not contravene the Fir
. ~."' The CO~issian fells that t'~' p~posed r~ulatlons accoFd' With -the Younc
'd&ciston, 'given the difference~ be~een:the Detml't a~d'~"~O~)s'ituation~.
-.. T~ere is '~o~ fqr. constitutioqall~ ~rotected"speech'~n~t~ese. r~'~lations as ~,
as p~Kection of 'the' health, safety and general welfare of the people.
The proliferation of adult land uses and the inpact of the existing cot
centrations of s~ch uses on the residential and business co,unities of the
City has been eno~bs and negative.
There are now, ~r~ughout the City, approximately 62 adult aotion pict:
theatres, 93 massage parlors' and over 62 adult boo~stores or peep shews or
coabinations of the ~o. Today, there are a total of 245 adult uses c~par
.with 9 in 1965. In the earliest and. largest concentration, Times Square an
the Theatre District, this escalation of adult uses since 1965 can be relat
~' the absence of ajor inv~ent or development decisions since 1~65.
Today, the pmllferation has spread to other vital c~ercial and resident,
areas of the City. There are nc-a concentrations of adult uses in East Hid
Lexington Avenue, East 14th Street, City Hall/~all Street and Downto~'n Bro
The dramatic increase in e:ult uses has been ~cc~panied by n~ative
and anti-social effects. In the area of West 42nd Street and the Theatre
the location of the greatest c:r. centratton, there has been a substantial c
uf econc,-'"*C viabilicY. ~u('l,,v ..:}c ..-~- ~ ...........(~ ......... ~ .......
Street were 26 percent higher th~n the over&ll rate for ~ldt~wn. In 1972
the ratio of tax arrears to tax levy t~ this area was twt~e that of 'the ratio
for ali of ~idtown, by lg75 the ratio had increased to 2.5 times the ratio for
Htdtown as a whole.
During the period of lg71 - lg73 sales tax revenue for this area declinea
by $5B2,000 or 43 percent compared to an increase of $SS,7DOL000 or ll. percent
for the City. At the same time there was a S percent decrease in retail Jobs
in the area as opposed to an overall decrease of only 2 percent for the City
as a whole. Examples of economic decline that were influenced by".
the concentration of adult uses are found in the closing of ).he Royal Hanhat:
Hotel, at 8th Avenue between 44th Street and ¢Sth Street, Jack De~psey's rest-
aurant in Times Square, Woolworth's in the U.S. Pension and Steel Building,Ch:
Manhattan Bank branch'in Times Square,.the, Ltggett'~Cugs~ore, Deli Ctty'a~d t!
Thus,'there' has-indeed been a dec]the ~f economic acti¥i~ in this area which
be directly related'to' the escalation of ~dul.t OsesL~-~. ~: ''-'."
Increases in.felonious criminal activity in areas wheKe concentrations o
,'uses are located are oven~helming, according tO statistics reported to the
Federal Bureau of Investigation by the Hew York City Police Department for
year 1975. ~ithin the Hidtown South and the Hidto~n ~orth precinctsjsubsreas
of the precinct, called posts, are classified as public morals prone posts
and non-public morals prone posts. Horals prone posts are those posts in
which one or more adult use is located. Verified complaints from the public
moral~ prone posts in Midtown were 69.5 percent higher than the'verified
plaints from other subareas. In these two precincts, public ~orals prone po
constitute only 34.S'percent of the total number of post, yet these posts
accounted for 47.1 percent of the total complaints. Iq individual catecorie
as established and defined by the Federal Bureau of Investigation Index of
Crimes, the public morals prone 7osts far exce.~ded the non-publicr~orals
prone posts. For instance, cc~plaints for felonious assult were 142.3 ~er-
cent higher, grand larceny 88.9 ;ercent higher, rape 185.2 percent higher a
robbery 130.2 percent higher.
The Cmtniision is additicnaily concerned with ~-he det-rt~ental influenc
adult uses has on children, i~e Co~ission was tmpressed'~}- the subst~nti~
testimony of Dr. Rosenthal in w'.ich he described children as the victlrs .o
enterortses-.
750137 ZRY
~amagh(~lnf]?nces ~n minors a(~ th srupCiYe efg~ct(-'.hat '~du!!
on neighboring residential~c°mmunittes° particularly minors ltvir
immediately adjacent to concentrations of adult activities, suc'
reside in Clinton, the necessity for appropriate regulation aha ~.
.... uses on'the part of-th~ CiLy ~:~; ............
The one year amortization provision for non-conforming use requires that
such uses be phased out within one year of the legtslatlon"s effective date
(approval by the Board of Estimate). Those adult uses which.violate location~
and other requirements imposed by this'measure are rendered "non-conforming" ~
hence subject to the amortization provisions. Since the premises affected by
these regulations are readily adoptable to conforming uses, the Commission is
the opinion that no appare6t'~h~rds~tps' i~.-so :gonvett~ng the~.will be.e::t~iled.
Adequate relocation opportunity is afforded by the legislation, consistent wit
its objective of reducing concentrations of such use. ~nortization of objectl
non-conforming use is a recognized poltce power techn{que ~hich has been subt:
in New York as well as in other state Jurisdictions.
The proposed amendments to the Zoning Resolution define adult uses and
establishes f~ve categories of adult uses. Four of the c~tegor~es, adult hoc
stores, adult motion picture theatres, adult coin Operated entertainment
facilities and'adult "topless" entertainment establishments are based upon th
offering of materials that are distinguished or characterized by an emphasis
on matter depicting, ~escribing or relating to "specified sexual activities"
or "specified sexual areas" which are also defined. Adult physical culture
establishments are those establis?~ents which offer massage or other physica'
contact by members of the opposite sex. Certain specific uses such as ~edic:
offices or electolysis studios are excluded from the definition.
The amendments distinguish in each appropriate Use Group adult uses ftc:
their non-adult counterparts i.e., an adult motion picture theatre is distin
from all other theatre uses.
Special regulations for adult uses are established in the ccc~..ercial st
plemental use provisions of the Zoning Resolution. These regualtions will F
adult uses to be located only within C4, C6-4, C6-5, C6-6, C6-7, CG-8 and C(
dlstricts~ and within these permitted dlstrtcts~ no adult use m~7 be l~cated :
500 fe~: of a residence district tcundary. These districts, generics!fy k~
7 h 76~%]7 ':,:
as genec, 1 co~nercJal distrlcts,~'vere~ cl~osen to .~;low a~' ,t uses oecause it
believed that adult uses in limited n~nbers, amongst the other permitted uses
prohibited from concentrating will not disrupt the co~erctal viability of su
districts. In addition, the prohibition of .adult uses within 500 feet of any
residence district wt.ll prevent such uses from disturbing or disrupting adJac
residential con, unities. Any adult use located in any 6therldtstrtct or whic
is located within $00 feet of any residence dtstrt.ct.boundary,.ls not permit
prior ndn-conforming use status and must be amortized within one year of the
fective date of this amendment. All adult physical c'~lture establishments~wh
ever located)are required to be amortized within one year~ and no ne~ adult ph
cul~rre establis'fiments are permitted. Further amortization is requi~-ed ~fnere
number of existing adult uses exceeds the number initially permitted. The
where adult uses are permitted are subdivided into zones having a 1OO0 foot
west dimension. Within C4 districts each zone may contain two adult uses. I
.C6-4, C6-5, C6-6, C6-7, C6-8 and C~-g districts such zones may contain eitheT
or 3 adult uses, depending upon the number of blocks or portions of blocks wi
each zone. Wherever the number of e~isting adult uses in any zone exceeds
number permitted, the number of ext~ttn§ adult use~ tn suc§ zone ts to be rec
to the permitted number by amortizing those adult uses which are closest to
residence district, within one year of the effective date of this amendment.
After determining which adult uses are permitted to re~ain after this
"zone" a~rtization", additional adult uses, either pre-existing or new, will
permitted in accordance with the limitations on concentration contained in t
adult use regulations. These a~itional uses are permitted in C4 districts
within a radius of 1000 '~eet of :.~e proposed ne~ adult use there are not
more adult uses presently existi.-.g. In C6-4, C6-5, C6-6, C6-7, C6-8 and C6
districts the additional adult :sas will be permitted when~within a l(~OP fo
radius~ there are not three or r..cre adult uses presentl~ existing.
The amendments also incluUe sign regualtions prohibiting the display
"specified sexual activities" or 'specified sexual areas", limittn0 the nun
of accessory business signs and :rohibtttng illuminated or projecting sign:
all adult uses except adult mot~.:n picture theatres. Appropriatz parking ,
~treet loading regulations, si~.liar to the requirements' for non-adult use
also established.
Special permits of the ~o;.:~ of Standards and Appeals and the Cit7 Pl
Co~ission, subject to 8pard cf Esti:~Jte action, are also set forth in th~
~.ents. The Bdard of Standards ~-nd Jppeal~may by special pe~it~exe~-:t
adult ~"; frGm the initial zon( morttzatton requJr~nek . ~r, ere the Board iGa
f~n~!n~related to: the effect on adjacent property; the distance to the near
residence district; the concentration~if any, that~ay re~ain and its effect o
the surrounding neighborhoodl and~that th~ retention of the adult use will no'
interfere with any program of neighborhood preservation or renewal; or alter~
finds that, in the case of an.adult bookstore or adult motion Picture theatre,'
the harm created by the use is outweighed by its benefits.
The special permit of the Con~tsston may be granted to allow ne~ adult us
which would otherwise exceed the permitted concentration levels. The findings
be made by the Con~isston are similtar to those required for the special penni
of t~e Board of Standards and Appeals.
The amendments also contain the repeal of the physical culture moratoria:
provisions, which was adopted by the Board of Estimate on January 8, 1976 (Col
The moratoriumwas, extended for three months, unttl'Aprll.~, 1977 by.the Boarc
Estimate on January 6, 1977 (Cal.g~85). ~ith the enactment of these amendments
is no longer any need for the moratorium.
After further study and review, subsequent to the public hearings, the
Con~nission detennined that the following ~odifications to the amendments were
appropriate:
l) Section 12-10 {Definitions) - Adult Use
The addition of language making the definition
and regulations of adult uses applicable to
clubs, where the'primary activity of such club
constitutes one of the five defined types of
adult uses. Also the deletioA of the provision
requiring adult uses to obtain Certificates of
Occupancy within 60 days. This provision is
inappropriate in the Zoning Resoultion and
is solely within the Jurisdiction of the
Department of Buildings.
2) £ection 12-lO {Definitions) - Adult
clarification of the Cc..-~..isJ~on's intent
by the addition of la,surge stating :he no£hing
contained in the definitions or requlattons of
3) Section 12-10 (Oefinitions) Cd) Adult
"topless" entertainment establ lshment - The
seating capacity limitation of such establishments is
el tminated.
4) Section 12-10 (Definitions) - (el Adult
physical culture establishment
Hodiftcattons to clarify the Commission's '
intent as to the type of land u'se activity
to be regulated.
$) Sections 3Z,IB, 83-03, g4-061,. 94-06Z'and
lOl-031 - ~odificatton of the ~ratorium on
physical culture uses whic~ is betnq .deleted.
This modification merely corrects these sections'
to reflect the recently enacted moratorium extension.
6) Section 32-464 (A~ortization of adult use~)'-
The language of this section is m~)difted to
clarify the Co~m~issions intent.
7) Section 73-35 a,d 74-46 - The languaqe
of the alternative finding of the special permits
of the Board of S.tandards and Appeals and the-
City Planning Conmission is modified to clarify
the Con~nissijn's intent as to the impact of
the grant of the, special permit use.
8) Correction of a typcgraphical error that occurred
throughout the amencbnent$ by adding C6-9 to the
districts pe~ittlng adult uses. This district was
al. ways intended to be included but was left out by
a typographical error.
The C~nission detern~ined tP. at the amendments as modified are
and adopted the following resolution, which is duly filed with the C. ccret:-
of the Ooard of Estimate, pursuant to Section 2D~ of the H~ York City
RESOLVED. hy the City Plant. Cng Co~ission that the 2onin~ Resc'~'Jttcn
The City nf f~xv YorL, effective :: of Dc:o,ber ]5. 1P61, and as suCsequcn:
ame~l(led. (5 /Ul'tlh'~' ,i,.L,,:,lcd I,y cf'Jnqes relatinq to 'zarinus SeCtions Cone:
10 N ~ Er, 137
Macocr underlined is de£incd in Seco.ion 12-10.
11o$0 SEPARA~I LITY
It is hereby declared to be the legislative intent that:
(a) I£ · court o£ competent Jurisdictio~ finds ~ provisioas
of ~is resolution ~o be invalid or ineff~ec~ive in ~hole or
in par~, ~he effec~ off-su~ decision sh~ll be limited ~o ~hos
provisio~ ~hi~ ~e e~ressl~ ~ed in ~e de.sion ~o be
invalid or ineffec:ive, ~d all other ~r~isions of ~is res-
· ..°lu~i°n sha'll 'continue ~o be separately ~d ~ully e~fec~ive.
~) If a court of co~eten% jurisdiction fin~ ~he application
of ~y p~vision or provisions of ~ resolution ~
zo be invalid or inefffec:ive in whole or in p~, ~he efffec~
" of ~u~ decisio~ ~hmll be l~i:ed ~ ~e per~, propers,
or si~ation i~e~azely involved in ~e con~rover5y,
applica:ion ~[ ~ny sa~ provision ~o o~er pe~ons, propers'
or si~a~ion5 ~ha!l no: be affec:ed.
[ Cc) ~e pmvi~ion~ cf ~en~en~ ~-23116 affec~int Sections 32-i
81-0~1 ~d 96-52; ~e ~ enlirety: should ~y por~ion be leu
· o be ~enforce~le or invalid for ~y re. on ~hen ~his en~i
~en~ent shall %e null ~d void in i~s entire~y. No tour:
co~e%enl juri:d~c:ion nor ~y a~inis%ra:ive body may
~y doctrine of :tpmrabili~ or severabili~y ~o save any
of ~en~en~ ~:-[31!6 in ~e event ~y portion is fo=nd un-
enfforce~le or invalid.~
12-10 DEFINITIONS
Adult Use
An "3dul£ use" J$ ~n¥ tf the £ollo~nE use~ deE[ned helo~. A~ adu
shall always be · prir~, use and m~y no~ be acce~sa~v £o ~ny oc~e
includinz ano%her adui: ,~.-~ . In the case of a combination of adu
each ~s[ shall be ccc~..ered as a separate prLmary Ess. ~? est~
oo
wh er co~:~ercSal or non-c6..,mrctal, open to the p~.lc or open to a
11mJ~ed 'memberShip such as a club ar organization and whether'operated
as a profit or not for profit entity, wMcE contain{ as a pr~nary u_~e_
or activity any of the five defined adult use~,-sha]l be and shall co~ply
with the pr~vistons of Section 32-46 {Regulation of A-u]t Uses). In
order to obtain Certificates of Occupancy all adult uses shall comply
with the requirements of Sectto 32-46 (regulatto~ of Adult Uses),
Ho a_d21~h~sical culture establishment., whether preYexisttn~ or ne~
shall receive a Certificate of Occupancy.
Nothing in these definitions or in Section 32-46 {Regulation of Adult
Uses) shall be de~d to auth6rize any activity which would other.~ise
.~be a. violation of state law.
{al Adult Bookstore
An "adult bookstore" is a bookstore or other establisF~ent havinq
a predominent or primary portion of its stock in trade in books,
-magazines, p~riodicals or novelties which are distinguished or
characterized by their enphasts on matter depicting, descri§tn~ or
relating to spe_cjfied sexual activttTe~ or s_pectfted sexual areas.
lb) Adult Hotion Picture Theatre '
An "adult motion picture theatre" is a motion picture theatre or
other facility used predominently or primarily for presenting
'cinematic material distinguished or characterized by an emphasis
on n~tter depicCing, describing or relatin~ to sueci~ied sexual
activities or specified sexual areas.
Adult coin operatied entertainment facility
An "adult coin operated entertaiP~ent facility" is a ~otion pictur
theatre or other establishment containing one or ~ore coin ouerat~
mechanisms intended to be viewed individually ~hich predo~inently
or primarily presen~ =aterial distinguished or characteri:ed by
an ~phasis on mercer depicting, describing or relating to s~e_ci_-
fied sexual activities or s_pecifted sexual areas.
12
id] Adul~ "topless" ~tcr~ir~ent
An" adul~ ~opless~ entez~ainment estnblishmen~" la any est~blis~
merit whether or not an eaClng and drinking place ~nd whether or no
such establishment is authorized to sell beer or intoxicating liqu
for consumption on the premises, which pro~ides 'dancers or ~ny oth
fo~ of enzerzai~enZ Zhaz involves ~e~ified s'e~al activities
or the display of'~e~ified sepal areas ~ the predomtnent or
pr{~rY" enter~ai~en~ activity of such eszablis~en~.
Ce) A~lt physical culture est~lishment
An" adult physical culture establishment" is any establisb~.nent-
" Which oC~e s or'adYertises by merJoers of :.he c?posi:e sea, ",~,{~
'body rubs or p~ysical.contact with s~ecified sexual are~, whether
not licensed. Establish~nts which routinely ln-ovide medical ser~
by state licensed medical practicioners, electrolysis treatment by
· licensed operators of electrolysis eRuipment~.~ontla~l,,s ~
'.... '·~tial or ~erfol~-i-~_ ~y~ ~r~n~: ' ,
culture establishments.
Specified sexual activities
"Specified sex~al activities" are:
(a) Human' genitals in a state of sex'ual sti.,-mlation or aro~tsal;
~) Acts of hu~n m~smJrbation, sexual intercourse oT sodomy; or
(c) Fondling or other erotic touching of h~an genitals, pubic
region, buttock'or female breast. '
Specified sexual a~eas
"Specified sexual areas" are:
~) Less than completely ~nd opaquely covered; (I) hu=~n genital
pubic region, (2; buttock, and (3) female breast below a pc
i~ediately above the top of the areola; or
('o) HumaJ~ male genk:a!$, less th=n c~pietely ~d ~puRuet¥ cove'
or hu~n malc ger. itals in a discernably turgid state, even
completely mad sp~quely covered.
¢
I2-1S
Use Group 6
C. RETAIL OR SERVICE ESTABLISHHENTS
- Bookstores, other than adult bookstores'* or coin ope..ra_te_fl
facilities.· ~&
· *'Adult uses, ma~ked with a double aster'/sk, a~e permitted only in
accordance uith the provisions of Section 32-46 (Regulation o£ Agu;
Uses).
32-17
Use Group 8
A. A~J SF..~=NTS
Theatres, other than adult mo:ion picture theatres·* or adul[ coin
'o_~erated ente~-ta~nment facilities** or adult "topless" entertainment
estab I ishments**
Adult use~, marked with a double ~sterisk, are pet-Jilted oniy in
accordance with the provisions of Section 32-46 (Regulation of Ac
Uses). \ "
32-18
Use Group 9
A. RSTA/L OR SERVIC~ ESTABLISHMENTS
[+]* Physical culture or health establishments, including
reducing salons, :~saage establishments or arc.baths, other
a_.~l~hLsi_cal cu!.'ure establishnents'*
[+ For a u._sS in Use C:oup 9, marked with a cross, no new such u_~.
shall be pea/tied or establihed for ~n interim period
until April ~, lOT?. fifteen mcn:~$ from the orig:nal cffecti
date o£ this a~encL~cnt, except Ln the 5_pcci-~! Theatre Ot~tr_.ic._t
FeS~T~ccionS apply to 3u~ u~e~. ,Ho~cveF, this p~ovlsion
facilities: basketball, h~dball, squash ~d tennis.]
Adult u~es, marked ~ith a double asterisk, are permitted only in
accordance with the provisions of Section $2-46 (Regualtion of Adul
Uses).
32-19 *
Use Group 10
A.' RETAIL OR SERVICE ESTABLISF~4F~TS
Eating or ctrinkinE places, without restrictions on entertainment or
dzncing, but li=ite~, to iota:ions in hotels, o~her th~n adult "looles
entertainment est~blish:en:s"
'' AduI~ ~es, =arked ~i~a a dou~le a~terisk, are pe:-~-itled only in,
accordance with the pr:visions of Section 32-46 (Regulation of Ad,
Uses). ,
32-21
Use Group 12
A. A,'~S E,"~=NTS '.
Eating or drinking place,, wi:hour restrictions on entertain=eh: or
dancini, other th~n ad~.: "looless" entertainment esatblishments''
B. RE'I'AIL ESTABLISID'£NT'3
Bookstores, other th&'. a~ul: books:ores'' or adul: coin ooera:ed
entertainment
marked ~[t.h' a double ~sterisk, are permitted onlr
in sccordancc with the provisions o£ Section
Adult Uses).
32-22
Use Group
A, AMUSEMENTS
Theatres, o~her tha~ adult motion pic£ure ~hea~res
~pe~ated entertainmen~ facililies" or adul~ "tooless" en~ertair.~-en~
establishments
'* Adult uses, marked with a double asterisk, are permitted only
in accord=ncc with the provisions o£ Section 32-46 (Regulanion of
Adult Uses).
32-24
Use Group 1S
Penny arcades, other than adult coin o_De_rated entertainment facilitie
'' Adult uses, marked with a double asterisk are permitted only
in accordance ~ith the ~rovisions of Section 32-46 (Regulation o~
Adult Uses).
Regulation o£ Adult Uses
Notuithstand[nguny other p:~vts~on of this re~olutSon including ~.
special purpose district adult uses are permitted only ~ithin CI, C
C6-5, C6-6, C6-7, C6-~ a~d C6-9 districts.
Any adult use ~hich does not conform to the provision~ of ~h£s Sec:
!:ncluding those adult uses located in districts other th~n
C6-6, C6-7. C6-8 and C:-9 districts OT those ~dult uses
16
o£ a residence district shall not be prior non-confor=ing uses.
In addition to being limited to such districts, all _adult u_se_s
shall be subie'ct to the distance, concentration, sign amd a~morti:atio:.
r~strictions o[ this Section.
32-461 Distance from a residence district boundary
No adult use shall be located within S00 feet of a r_es_identi~l dil
The distance shall be determined by measuring from the edge of itt
nearest residential district bounds?/ To the closest lot line of
the z__on_in_g l_ot_ c~nt~ining the adult use.
32-462 Concentration of adult uses'
;.In C4 districts no new adult use may be established ~here. ~ir-Sl
an azea circuuscribed by a line 1000 fee~ in perpendicular or rz:
distance, fz~m the center of the zoning lot of the proposed ne~
adult use two or more adult rises presently exist.
In C6-4, C6-5, C6-6, C~-7. C6-8 and C6-9 districts, no new
may be established ~here within an area cir~scribed by a liz~
1000 feet in perpendi~=lar or radial dis~nce fro= the center
z_on_in_g.l_o~ of the proposed adult use three or more adu!: uses
presently'exist.
32-463 Adul~use si gm. regulations
No sign or window display for in respect of ~ny a6ult use shzl~
display or describe a s_.~ecified sexual ac:iviJ~, or a specifier
sexual area. No ad.l: use shall have more tha~ one accesso~'
business silLn. exce?: :hat an adult motion
in addition have a :~.-quee. No advertisin~ ~i_c-n~ are
for an adult
No sign for or with respect to any adult use shall:
a) be illumina:~ nor contain flashing lights
except ~hat acu,t motion'~icrure, theatre marquees
illuminated, and
extend bey:-: :he StTee: line, except for
$2-464 Amort£zation o~ adult uses
AIL adult uses located In di'strtcts other than C4, C6-4, C6-S,
C6-6, C6-7. C6-8 and C6-g districts shall terminate within one
year of the effective date of'this a~end~ent.
AIl a_du_l:_ physi_ca_l culture establishinents shall terminate within
one yea: of the effective date of this ~mendment, except that thos
u_se_s which under this a~nedment constitute adult p.h~,sical culture
establishments and which were required to be a~orcized pursuant tc
a prior mnenctment (CP-23116] approved by the Board of Estimate as
Calenda~ No.85 on Januaz7 8, 1976, shall terminate not later than
Jaguar/ 8, 1977.
Within C4, C6-4, C6-S, C6-6, C6-7, C6-8 and C6-9 districts, all
a~ult u~es located.within'SOO feet 6f a residence district shall
terminate within one year of the effective date of this amend=ent
Within C4, C6-4, C6-S,.C6-6, C6-7, C6-8 and C6-9 dist=icts, beyon
SO0 feet from a residence district adult u~es shall be a~orti:ed
within one year of the effective date of this amendment, in acco~
~nce with the regulations set forth below:
C4, C6-4, C6-5, C6-6, C6-7, C6-8 and C6-9 distrlk:s shall be
divided ~nCo-zones for the purpose of dete~ining which adul
u~es are to be ~.~ortized. Tnt boundaries of such Zones shal
be parallel to the westerly boundary of the district ad sh:
have ~ e~t-~est di=ension of 1000 ~eet. ~ere ~e east-we~
~mension o~ ~y district is less than lOOO ~eet or ~here
dividing the district into one or more :ones o~ 1000 feet
remainder is less t~a 1000 feet, such district or rcnaknde
thereo~ shall 5e a zone for ~orti:a~ion pu~oses.
Within Ci districts, no zone m~7 contain more than two
adult uses.
Wkthin C6-4. C~-5, £6-6, C6-7. C6-B and C~-9 districts,
any Cane conta:ns I0 or =ore blocks or porttons of 10 or ~
blocks, such ::ne ~av COntat~ three ext~ltng adutt uses
.(
ghenever the number of extsttng adult uses in any ,.
zone exceeds the permissible number of existing
adult uses for such zone number of such uses shall be.
reduced to the permissible number by terminating~'
those adult uses closest to.the nearest residence
district. Where two or more adult uses are located
on different s_to~i._eswithin a single building the
m ~S~ located on the lower sto_ry is dee~ed to be closer
'-...to the nearest residential district boundary. ~here
two adult uses are equidistant from the nearest rest-
dential district boundary the adult use occupying the
larger floor area shall be the u_s~ which terminates.
32-4&5 .Accessory off-street parking and. loading requtr~nents
All adult uses 'shall pr°viUe accessory off-stree: parking spaces and
accessor~_off-street loading berths in accordance with Sections 36-20
(REQUIRED ACCESSORY OFF-STP,~.E:'-T PARKING SPACES FOR COmmERCIAL OR
'CO,~2~UNII~f FACILITY USES) a~d 36-32 (REQUIRED ACCESSORY OFF?.STREET
LOADING BERTHS). For this purpose, adult uses shall be considered as
uses listed in th~\follc'~ing Use Groups and having the following park
requir~ent categories:
Adult bookstore - Use ,~roup 6C, Parking Requirement Category B
Adult motion pt_ct_ur_e t~eatre - Use Group ~A, parking requirement
Category O
A._du~ t_opless enterta!-~ent establishment -Use Group CA, Parking
Requirement Category ~
Adult cotn o_.p~rated e-tertainment fa~i~tt_y -Use Group 1SA. Parki~
Requirement Category E
A_du~ ~hvsical cultur? establishment - Use ~roup 9~, Parking
Requi re.~nen t Category
~3-30 ENr. ARGEItENT3 OH
of ~he suppl~n~a~ ~s~ ~la~o~, or of ~he
pro%~sXo~ app~nS ~o~ dXs~rlc~ bo~les) n~ b~
~n!a~d or e~en~e~, p~aed that :he e_~n_~ or'~~d
floor ~a sh~l no~ create ~ew l~t~ces of such Vtolatlon.
~d provlded ~her ~hat ~n the o~e of'~ ~ult use wheel
l~ ~o be aao~cize~ pursusmt ~o the provl~ions of ~eotlon
32-46 (Hegulation.of Adult Uses) shall not be extended, ex-
panded or altered.
~ · ~ ~ -.
73-35 Adult Uses .. :
In c~, C6-4, C~-5, C~4-6,. ¢6-?, C&-8 and
Boar~ may, 'subject to n~tifXcation and review by the af£ec'
Com~unity Board In accordance with Section 66B of the, New
York City Ch~r~er ahd the Umlform Land Use Review Proce~ur
'exempt an existing 'adult ~e, other.th~.u an adult
culture establishment, from the requir~ments of Section 3~
(Amortization of aclu!t uses) noSwiths=a~udlng the provislo:
of Section ~2-~62 (Concentration of adult uses) provided
the Board finds that~ .
a) the ~s~ does not adversely affect adjacent pro,ex
b) the zo_ni_mE lc'_. containing such adult use ~s more
500 feet fi'c-_ the near~st residence district,
o) the retention of the adult use would not o.'~ate .
ooncentratlc: such as would be contrary to :he ~'
interest or would adversely affect the surroundl
ne lghborhoc~_, and
the retenticn of such adult use would not be coz
to any prc~r~ of neighborhood preservation nor
does it lnterf-e.~-e with any prog~rs.m of urha~n rem,
or site.--natively f:r. ds that, in the cage'of a.n _~_a-u!.~_ _bo
or ~d_ul_t ~ot_l_on .R:::ur~_ theatr~ under the condlnlor, s cz
:;7o0157
of such specl~l' permit use at the particular
outweighed by the adva~,tages to be derived by the
Erant of such special permit.
~4-~ Adult Uses
~In C4, C6-4, C6-5, C6-6, C6-7, ¢6-8 and C6-9 districts, the
Commission may, subject to notification and review by the
affected Community Board in accordance with Section 197-c
of $he New York City Charter and the Uniform Land Use Review
Procedures, Detroit' the location of an adult use, ether than
an _adU_lt_ _physical culture establls~nent notwlthstand~.nE the
provisions of ~ectlon 32-462 (Concentration of adult uses)
provided the Commission finds that~
. -a~ the ~s~ does not adversely affect adjacent property
She _zonl._ng lo~_ containing such adult use is more
than 500 fee= from the nearest residence district,.
the addition of such adult use will no$ create a
........ concentration such as would be contrary to the
public inter~=~ or would adversely affect the sur-
rounding nelghhorhood~ and
the addition cf such adult use will not be
to any progrmu of neighborhood ?rese~a~!on nor dc.
it in=e'rfere w:-.h any proEram of urban'renewal;
or alternatively finds that, in the case of an adult books
or adult motion olcture~ theatr~ u~.der the conditlor~ or s~
guards imposed, the ha-.---~-s or disadvantages
of such special pe~It use at the particular site are out-
weighed by the advantages to be derived '
by the grant of such special permit.
21
N7o0137 Zr[
Use Group
G. Retail or Service Establishments
C+] * 42. Physical cultture or health establishJ~encs, including
reducing salons, ~usal~ establis~ents or' s~e~ ba~s.
~For a ~in Use G~ ~, ~arked ~i~ a ~ss, no ne~ su~ ~e~
shall be pe~ed or established for ~ in~cri~ period e~:endin2
~til ~ril 8, 1977, ~ifteen ~onths f~ the original e~fecti~e
da~ of this ~en~en~, Howe~er, ~is p~ion shall noc
· o ~i~ ~ed exl~i~el~ ~or the ~ollo~ini spores
b~ke~ball~ h~sball, squ~h or
94-061
Uses pe~itted ~ of
[*~ Physical ~llure or heal%h eslablis~ents, !ncludin~
reducin~ salons, m~saZe e5t~lis~enl5 or s~e~ baths.
For a ~ listed in Sec:ion 94-061 (Uses peri,ted ~ of
marked wi~ a' cross, ~.o new such ~%~shall be pekin:ed
for ~ in~eria period ex~endini ~til April 8. 1977.
months from ~e ori3inal effective dace of ~his a;en~men~. Howev
~is pmvision shall no~ apply to ~i~ used exclusi~'ely
for ~e followini spcr~ facili~ei: b~ke:b8ll, h~dbal
or tennis.~
94-062
llse ~roup
For a u_sE listed in Use ~roup SB, marked with · cross, no new
such u_se_.s shall be permitted for an interim period extending
until April 8, 1977, fifteen months from tho original effective
date of this amendment. However; this provision shall not apply
to gymnasiums used exclusively for the following sports £acilitie~
basketball, h~ndballo squash or tennis~
9S-081
Use Group ?'
$9. Physical r~-,l~ure.'or h~zl~% est-..biisPa~nts, including
gymnasiums, reducing salons, massage establishments or
steam baths.
For a~in ~se a~ T, n~ked ~i~ a cross, no new su~ ~e~
sh~ll be pe~i~ed or est~lished for a ~t~r~ period e~endinl
~til ~ril 8, 1977, fifteen months from the original effective
date of this ~en~en:. However, ~is provision shall not ~p1y
to ~i~ ~ed exc!usively for ~e roll,win[ spor~ faci!i;i
b~ketba11, h~a11, 5qu~h or tennis.]
99-031
Use Group
P, ETAIL OR SERVICE ESTABLIS~qENT$
[+]15.
*Physical cultu:e or health establishments, including g~mn
reducing salons, massage establishments or s~ea.m ba~hs.
For a u_se liited in Use Group ~, marked with a..cros$, no new
such u._se_s shall be poi-mitred or established for am interim
extending until ~:il i, 1977, fifteen ~onths from the
effective date of :his amendment. However. ~Nis provision ih
.not apply to ~yr~::i~s used exclusivelM for the follow:mi sp
fac/tildes: basket:all, ha~dball, squash or
101-05!
Use Group ¥
O. Reatail or Service Establishnents
41. Physical cult ute or health establislunents, including
gymnasiums, reducing.salons, massage establishments or
steam baths.
For a use listed in Use Group Y, marked with a cross, no new
such uses shall be permitted or established for an interim peri.
extending until April 8, 1977, fifteen months from the orilinal
effective date of this amendment. However, this provision shal
not apply to ID~masi,~ used exclusively for the £ollowing spot
£acilities: ba~ketba21, h~ndball, squash or tennis.]
[81-021
Special use re~mlations
When permitted by the underlying district retulations, physical
or health establishments, however described or advertised, includi:
without limitation, reducing salons, massaie establishments or s~e
baths, are reftricted :~ locations in transient hotels with ~00
or more provided that no such u._s~ ~nd no accessory business si~n
upon a slreet or public way and comraunitz facilities or buildi~g~
predominently occupied by a com~unit~ facilit_~v. ~here such physic
culture or health estaklishmcnts con,nih-ajay o£ the follo~ini rc£t
size*sports £acilities: ba~hetbal! courts, handball courts, ~qu~I
courts, tennis courts ~r-a swim~ing pool of a minimum 1,SO0 sq, f
such loca~fonal res::iclion shatl no~ apply. ~ere ~ ~tse is rea
non-confor~in~by su~ loca:ion restrictions, and where such use
no£ occupy a= legist 4,S00 sq. £=. on one floor ~ a_6 October 1, 1
such u._s~ shall ter-~nate not later than one year a~ter the e~ect
date of such restriction, and thereufter the space fo.--a...erly occul
C
Regulation s[=e shall neon:
Basketball Courts - width SO £eec; length 84 feet; clear height
20 feet minimum.
Surrounding t/me perimeter there shall be a min£m~u o£ 3
clear open space.
Handball Courts - width SS feet at back ~d[ fe~gr.h S0 feet; clear
height 23 feet.
.Gquash Courts - w~dth 25 £eet; length 45 [eec; c/ear heigh~ 20 fee
Tennis Courts - width 60 feet; length 120 feet; clear height 52 fe
at net, 8 fee~ at ~al! lines.]
[96-524
Special tme regulations
When pemit~ed by ~he umderlying district regulations, physical cul
or health establishments, hoverer described or advertised, includin
without limitation, reducing salons, ~sage establishments or
baths, arg restricted 1o location in transient hotels with 200 root
or Bore provided that no such _us~ or ac=esso~[b_usiness
upon a stree= or publi: way and community facilities or buildin__g~
predominently occupied by a co~_~=nit[ facility. {~here such physic
culture or heal r. h establishments contain ~ny of the followin~ regu
size · sports facilities: baske:ball tour:s, handball-=our=s, squ~
courts, tennis courts :r a swimming pool of a nini=um 1,$00
such locational res~ri:tions shall nat apply. Where a u._s[ render,
non-confornin_g by suck loc=[ional restrictions, ~nd where su=h us.
does not occupy al leas= 4,500 sq. ft. on one floor as of 0c:ober
1975 such _us~shall zc.-=_inu~e not la,er Lh~n one year a£%er the ·
date of such restricti:n, ~nd thereof:er the space formerly occu~
by such u_s~ shall be '~sed only for a conforming
N7b0157 ZRY
~egulation ~izc shall
Basketball Courts - width 50 £cct; length 84 fleet; clear height 20
fcet elnieu~. Surrounding the perimeter there shall be a
ofl $ feet Clear open space.
iJandball Courts - width SS feet at thc 'back end; length SO fleet;
clear height 25 feet.
~qua~h Courts o w~dth 25 [cet~ 2ength 45 fcet; cle~ height 20 feet.
Tennis Courts - ~[dth 60 feet; length 120 ~eet; clear height 3~ fleet
at net, 8 ~cet at ~a21 l~nes.]
VICTOR~LRRRERO, Chairman
ALEXANDER COOPER, GORDON O. DAVIS,
SYLVIA DEUT$CH, HOWARO B. HORHSTEI~,
~ARTIR GALLEHT, Vtce-Chatrmanj concurring
t;760t37 ZRY
CONCURRING STATF~M~.NT BY VICE-C)iAIR~,N MARTIN GALLENT
N760157 ZRY
January 26. 1977
Although I concur in appeoval of th£$ legislation, I have a deep
and unresolved reservation as to the result of the inclusion in the leg-
islation of adult book store~. ~rom the information that has been pro-
vide<i, I do not believe that it is possible to enforc~ this aspect of
the legislation; and in ~act it ~a¥ result in abuses.
I, therefore, recommend that the Board of Est/~ate adopt the legis-
lation ~ithout the adult book store.controls.
2.7 H 760137 ZRY
an'J'~'ff~'y 26~ 1917/ Calenaar ~ 23
~( 160131 ZR¥
~enc~r. en:a of the Zon~.ng ResoLute. on p~: to 5ec=~on 200 o[ ~e .V~ Xork
These proposed a~end~ents separate adult uses from the. general use groups
and s~.ectfically designate and thereby li~it the districts in which adult uses
are permi tied.
These amendments define and [stablish regulations for adult uses. The del
initions create five categories of adult uses: adult bookstore, adult
picture theatres, adult "topless" entertainment facilities, adult coin operate.
entertainment facilities and adult physical culture establishments. By creati:
separate definitions for these adult uses it is now. possible to distinguish in
the Zoning Resolution adult uses an~ other uses. ~ithout such definitions aclu
uses were for all purposes treated the same as their non-adult counterparts an
thus, allowed to locat~ in any zoning district where the general use was permi
In conjunction with the establishmeot of the districts per~.,itting adult
these amendments also set forth: cot, trois on the number, location and c:ncentr
of adult uses within any district; .:rocedures f.or terminating or amortizing
adult uses which do not comply wit~. the location requirements; limits cn
concentration; sign regulations an.' specia! permits for the 8oard of St=_ndards
Appeals and the City Planning Co,~,-i~sion. ..
The impact of these am'endmen:; '~ill be to reduce existing c:ncen:raticns
of adult uses and to prevent future concentrations, thereby substantially
the adverse econo=ic and social effects {hat these concentrations produce.
same time, adult uses will be prevented from disrupting residential neic. hb.~rh
by regulations requiring all adult u~es to be located at least -C~3 feet
nearest residence district boundary.
Public Hearth9 '
On November 10, lg76 (Cal. ~2) the Co~isston scheduled a PUB~E~R~RRI,~
on the proposed amendments, The public hearing was held on December l, 1976
(Cal. t13). ..
Humerous speakers appeared in favor of the proposed amendments tncJuding
a Congressman, two Councilmen, the Oirector of the Mayor's Hidtown Action
Office,'the Oirector of the Hayor's ~tdtown Law Enforcement Task Force, the
Chairperson of the Zoning Coa~nittee of Co~nunity Board-#6~tn Manhattan, the
Chairperson of the Zoning Contnittee of Conmuntty Board ~2 in Hanhattan, the
ExecutiVe Oirector of the Citizens. Housing and Planning Council o the Chairma
of the Mayor's Hidtown Citizens Co~nittee. the Executive Director of the
League of )le.v York Theaters, the Executive Director of the West Site
tion, a founder of Phoenix House Foundation Inc. and former Deputy Conraissior
of HeN York City's Addiction Services Agency, the Vice-President of the Rial'
Action'AssociationL the Executive Director of the 4grid Street Redevelol~ment
Corporation, the Executive Director the Broadway Association, the President
of'the East Side Association, and representatives of Actors Equity, Com-
munity Board~ ~4 and ~8 in Manhattan, the IATSE and Projectionists Union
Local 3~6, the New York Sportswear Association and the Fashion Capital of th
World Inc., the ~dtown Precinct Co,~tnunity Council, the'34th Street Hidto~n
Association, the Site 9 Tenants C¢,,n~ittee, the Municipal Art Society, Volun:
to Improve Third and Lexington, Restaurant Row, the West 46th Street Block
Association, the Better Brooklyn Con~nittee, Group Health Inc., the Statler
Hilton, several West Side restauranteurs and several ~est Side'religious in
tions.
Many of the speakers were concerned with the blighting effect that the
concentration of adult uses has had on the West Side of Manhattan. Repres(
of Manhattan's East Side also voiced their approval of the amendments. Adt
uses have by no means reached the same concentrations on the East Side but
several small ~oncentrations do exist there, and these speakers stated tha
the existing zoning regulations ~osed no barrier to further intrusions.
Dr. Rosenthal, psychiatrist, former Deputy ConTnissioner of ~ew York C
Addiction Services Agency a~d i:,~nder of Phoenix House - ~he Ci~'~y'~
dential od~it-t~rehabilitation program said that the gro'.th of adult uses
"... a direct bearing ~pon :h,e ~-:~r of younq people who ~e~.c~e
..... to heroin or dependent upon other drugs.'
He described the "adult entertain
ment" business as parasitic, attracting.and victimizing adolescents, breedin
teenage and homosexual prostitution and addiction. Or. Rosenthal further st
'... we have every right to limit or disperse them [adult uses] so that the
pathological matrix is destroyed. Zoni. ng is a reasonable instrument for thi
purpose. It's the City's means of protecting its citizens from conditions
dangerous to health and safety or which threaten the cor~nunity's general wel
Speakers in opposition to the proposed amendment included the District
Attorney of Staten Island, a Councilman, the Chairman of Con-unity Board
in Manhattan, the purported operator crf several m~asage parlorsl 'representa'
of the New York Civil Liberties Union, two Staten Island Councilman, the
pendent Theater Owners Association, the New York Society of Medical Hasseur
the Oakwood Civic Association, ',.he Turtle Bay A~soctation, the Staten Isla~
Better Films Council, the Civic Congress of Staten Island, the t~e~ Oorp
School P.T.A., the Staten island Federation of Parent Teacher Associations,
the Ne~ Oorp Central Civic Association, COYOTE, the Committee - ~ens Watt
Cttywide, the Staten Island Chamber of Con~nerce, the Fe~ninist Party, the
Workshop, Citicorp and several ~st Side religious institutions. The maj,'
of speakers in opposition, those f~ Staten Island and the East SlUe,
against the amendment because it vould continue to pe~it, adult uses in
near their con~unities. Others rai~ed questions concerning the c:~stit'Jti
of the proposal. .,
~hese ~peakers..~eco~nd~: °~"~,,_~ adult uses not be pe~Itt~ in
nor in C4-1 districts. ~he C~..-~,is;ion has agreed to study tho~ c~.ng...
District Attorney. of- Staten' I~iand questioned whethe~the ar.~:~e~: ~i~:
with certain, provisions o£.sta:e )aw~. ~e Con~ission has ~cdlfied, as
below, the proposal to resolve a6y such conflict. The'hearin~ ~as close:
Backoround
For the past several year~ ~e~ York City, like many other ~aj:r
cities, has been faced with toe pr~ble~ of proliferating adult en'~r-
merit land uses which have hac a :eleterious effect on both t~e b:si~ess
residential segments of the c:~,,u~ity. The City has atte~.pt~-~.~ teal
these uses through criminal e~forcement. Through agencies s:c~ as the
Attorney and the Hldtown L~ Enfc-cL~nent Task Force. the City is
aspects of land uses which ~a7 be tlle~al. Ho~ev~..it has ~e~_.-~:.e
r
en(orce~ent, techniques, while.extremely useful, will not be Fcm?le.~ely ~ucce
in and of themselves;. The City therefore, began.evaluattng......other techniques
which it could deal directly with these land uses.
Xn January 1976~ the City Planning Commission and the Board of Estimate
implemented zoning measures which dealt with one aspect of adult entertatnm(
uses, t~e., the exp~nsion of Use Group g,'phystcal culture activities in th~
city. At that time, the Offl~m of Htdtown Planning and Development and the
City Planning C.ommtsstonmade a commitment to the members of the Board of
Estimate that within one year's time, citywide legislation would be drafted
which would be directed at regulating and controlling these land uses.
Throughout the year,' the alternative techniques being implemented or e
by Boston,'Detroit, Hinneapolis, Dallas and Atlantic City have been studied
The objective was to find a solution that would c~btne the best efforts of
all of these cities, in order to provide New York with a sophisticated and
effective zoning amendment.
The analysis of these other efforts indicates that t~o primary methods
have been used by other cities to control the proliferation of adult enter-
tainment land uses. The first ~echod, which is used by the City of Boston~
is that of concentrating adult land uses within a single zoning district.
Discussion and examination of this concentration method and a recent analy~
of its impact on the City of ~:ston has sho~n that this is not a successfu
zoning approach. Statistics i::icate that the ir~lementation of this zoni
method in Boston has resulted in an increase in both the crime tote of the
Boston Business and Entertainment cistrict and an increase in the vacancy
of the surrounding office buildings. For these reasons and because of t)
different spatial and social c~aracteristics between ~ew York City and Bo
the Co~ission has concluded :~c this method could not'be successfully a.
for use in ~ew York City.
Simultaneously the City cf Detroit has moved in a different directio
Detroit has attempted to con:rtl the problem by restricting the nu=ber of
districts in which these uses t:uld locate, and, within the allowable dis
limiting the concentration le~el of these uses. This method prevents an
whelming concentration of a~:;i: l~nd uses in any one area of the City o~
Detroit. On June 2qo 1976 :r~ ~ited States Supreme Court in the case o'
v. The ~merican Mini Theatre ~t~.. by a vote of 5-4. reversed a l:wer co
4 ~
dacisiL , and held that a city~ d the right to regular' and control adult
'~h~'-U'F~s--~ a separate and distinct use. The court further held that such
uses could be prohibited from areas adjacent.to residential neighborhoods a~
that the City of Detroit had shown a compelling state interest sufficient t(
validate the restrictions imposed upon otherwise protected speech acttvitte
Consideration
In weighing the proposed adult use regulations for Ne~ York City, the
Co~,~ission carefully studied the opinions of the Supreme Court Justices in
~ounq case -- paying particular attention to the First~men~ment issues dis
therein. That decision encouraged cities to use their traditional land use
police powers of separating incompatible uses, even though this might impos
different regulations on an adult cinema .~9r example than it would o~ a get
¢ine~.. The Cou~t s'eamed'to say'that 'as :long as.the ~ro~osed l'a~d'b~e ¢ont
~_afforded a reasonable ~pportunitv for ~n-adult message to'reach an ~dult ac
_ . such exercise, of the local 'land use'police powe~ would not contravene th~ ~
· L'" The Co~tssiO~ fells that its. proposed regulations accord with-the Yc:
· decision, 'g~ven the differences between:the oetrol't a~d ~e~'~o~!situatio~s
-.. T~ere is 'roc~ fqr constitutiooaliyp'rotected speech'~n.t~ese reg'~lations
as protectiJn of 'the' health, safety and general welfare of the people.
The proliferation of adult land uses and the i~pact of the existi~
centrations of such uses on t~e residential and business ccn~nunities of
City has been enormous and necacive.
There are now, throughout the City, approximately 62 adult ~otion
theatres, 93 massage parlors a~d over 62 adult bookstores or peep shows
combinations of the two. Today, there are a total of 245 adult uses
with 9 in 1965. In the earliest and-largest concentration, Times Scuare
the Theatre District, this essala~ion of adult uses since 1965 can be tel
to. the absence of ~jor inv~ent or development decisions since
Today, the proliferation has tDread to other vital c~,~Tnercial and resic~
areas of the City. There are ~ concentrations of adult uses in East
Lexington Avenue, East 14th Street, City Hall/Wall Street and Do~'ntown
The dramatic increase in adult uses has been acc~xnpanied by neqati~
and anti-social effects. In t~e area of West 42nd Street and the Theatr
the location of the greatest ::ncentration. there has be~n a substanti~'
C
C, c "
· . ... ~ (
· Street were 26 percent higher than the overall rate for ~dtown. In 197Z
the ratio of tax mrrears to tax levy t~ tht~ area wa~ tw-rce that of'the rattt
for all of Midtown, bY lg?$ the ratio had Increased to 2.5 times the ratio f~
Htdtown as a Whole.
During the period of 1971 - 1973 sales tax revenue for this area declin,
by $5B2,000 or 43 percent compared to an increase of $55,7D0~000 or ll perce~
for the City. At the same time there was a 5 percent decrease in retail Job
in the area as opposed to an overall decrease of only 2 percent for the £tty
as a whole. Examples of economic decline that were influenced by".
the concentration of adult uses are found in the closing of Zhe Royal Manha
Hotel, at 8th Avenue between 44th Street and ¢Sth Street, Jack Dempsey's resl
aurant in Times Square, ~oolworth's in the U.S. Pension and Steel Buiiji~g,(
~anhattan Bank branch'in Times Souare',.ithe. Ltggett'~rugs~ore, Deli Ctty'a~d
Thus,'ther~ has indeed been a decline ~f economic activity, in thi~ area whi,
b~ directly related'to' the escalation of adult 0sesL:~ ~:: ' · 'i"
Increases in.felonious criminal activity in areas wheKe concentrations
, uses are located are overwhelming, according to statistics reported to the
Federal Bureau of Investigation by the He~ York City Police Department for
year 1975. ~ithin the Hidtown South and the Midto~n North precincts, subar~
of the precinct, called posts, are classified as public~rals prone posts
and non-public ~rals prone posts. Horals prone posts are those posts in
which one or more adult use is located. Verified cc~jlaints from the publ
morals prone posts in ~idtown were 69.5 percent higher than the verified c
plaints from other subareas, in these two precincts, public morals prone
constitute only 34.5'percent of the total number of post, yet these posts
accounted for 47.1 percent of :ne total co~plaints. IQ individual cateqor
as established and defined by the Federal Bureau of Investigation index of
Crimes, the public morals prone posts far exce~ded the non-oublic ..~. rals
prone posts. For instance, cc:~laints for felonious assult were 1~2.3 pe
cent higher, grand larceny 8~.S percent higher, rape lBS.2 percent higher
robbery 130.2 percent higher.
The C~,,,,ission is additicnalqy concerned withrhe Uetri~ental influ(
adult uses has on children, ihe Corrrnissio~'was~:oressed by the substan'
testin~ny of Dr. Rosenthal in ,hich he Ces:ribed children as the '~icti~s
enterorises.-
6 ' N 75r)137 Z.~¥
o~.~b~,.~..~.~ ~.~]d~nttal.~coo~nunlties, parttcullarly minors llvtr ~
tn~nedlately adjacent to concentrations of adult activities, suc'
reside in Clinton, the necessity for appropriate regulation and ..
......... uses on'the part o~-th= City ~l~.,
The one year amortization provision for non-conforming use requires thai
such uses be phased out within one year of the legtslatton"s effective date
(approval by the Board of Estimate), Those adult uses which violate locatio~
and other requirements imposed by this ~easure are rendered "non-conforming"
hence subject to the amortization provisions. Since the pre~ise~ affected q
these regulations are readily adoptable to conforming uses. the Con~nission i
the opinion that no appare'ht..h~rdshtps' in-so ~onvert~ng th.~_will be e::t3ile
Adequate relocation opportunity is afforded by the legislation, consistent v
its objective of reducing concentrations of such use. Am, ortization of objec
non-conforming use is a recognized police power technique.which has been sut
in Ne, York as well as in other state Jurisdictions.
The proposed amendments to the Zoning Resolution define adult uses and
establishes five categories of adult uses. Four of the categories, adult ~
stores, adult motion picture theatres, adult coin Operated entertainment
facilities and adult "topless" entertainment establishments are based upon
offering of materials that are distinguished or characterized by an ~-nphasl
on matter depicting, describino or relating to "specified sexual activitie~
or "specified sexual areas" which are also defined. Adult physical cultur=
establishments are those establishments which offer massage or 'other physi
contact by members of the opposite sex. Certain specific uses such as mec
offices or electolysis studios are excluded fro~ the definition.
The amencbn, ents dtstlnguis~ in each appropriate Use Group adult uses f
their non-adult counterparts i.e., an adult motion picture Sheatre is dis:
from all other theatre uses.
Special regulations for a~Jlt uses are established in the co~-ercia!
plemental use provisions of t~e Zoning Resolution. These regualti=ns wil
adult uses to be located only within C4, C6-4,*C6-5, C6-6, C6-7, £~8 and
districts, and within these per~.itted distrtctsyno adult use ~a¥ be locat~
500 feet of a residence distr~:t ~undaryo ~hese districts. Gene-~c~lly
7
as gene~,l c~ercial districts.~'~ere ct~osen to a;Iow a~'
.. .,~te_S in limited numbers, amongst the other .nermttted .use:
prohibited from concentrating will not disrupt the co~nerctal viability of s'
districts, tn addition, the prohibition of .adult uses within SO0 feet of an.
residence district wt.ll prevent such uses from disturbing or disrupting adJa
residential communities. Any adult use located in any 6thor;district or whi
is located within SO0 feet of any residence dtstrt.ct.boundary,.t$ not permt
prior n6n-conforming use status and must be amortized within one year of the
fective date of this amendment. All adult physical c'~lture establishments~v
ever located) are required to be amortized within one year~ and no new adult
culture establishments are permitted. Ftrrther amor~zati~n is required ~he~
number of existing adult uses exceeds the number initially permitted. The
where adult uses are permitted are subdivided into zones having a 1000 foot
west dimension. Within C¢ districts each zone may contain l~o adult uses.
C6-4, C6-5, C6-6, C6-7, C6-8 and C~-9 districts such zones may contain eith
or 3 adult uses, depending upon the number of blocks or portions of blocks
each zone. Wherever the number of e~isting adult uses in any zone exceeds
number permitted, the number of exi'~ttn~ adult use~ (n suc§ zone is to be r
to the permitted number by a~ortizing those adult uses which are closest tc
residence district, within one year of the effective date of this a~end~enl
After determining which ac~it uses are permitted to re~ain after this
"zone" a~rtization", additional adult uses, either pre-existing or new, wi'
permitted in accordance with tP.e limitations on concentration contained in
adult use regulations. These a:~itional uses are permitted in C.4 distric~
within a radius of 1000 'feet of the proposed ne~ edult use there are not
more adult uses presently existing. Zn C6-4, C6-5, C6-6, C6-?, C6-8 and C
districts the additional adult :sos will be permitted when~within a
radtus~there are not three or r:re adult uses presently existing.
The amendmenLs a)~o inclu:e sign regualtions prohibiting the display
"specified sexual activities" cr 'specified sexual areas", limitinO Lqe r.
of accessory business signs ant pr~hibiting illumine:ed or projecting sic.
all adult uses except adult r~tion Picture theatres. Appropriate parkinc
~treet loading regulati~nSo s:-.iltar to the requirements' for non-adult
also established.
Special permits of the ~:~.rd of Standards and Appeals and t~ City
£o~nission, subject to ~oar: :f £:ti~te action, are also set forth in t
~ents. The Board of Standarc: a~c ,~ppeal~ma), b7 s~ecial
adult ~'; fr~n the Initial zon(v morttzation requlr~nek . where the Boar~
f(nding~related t~-~t~,~ '-~f~. on .adJ~nt .property; the distance to the n
residence district; the concentratton~lf any~that may re~atn and its effec
the surrounding neighborhood; and~that the retention of theadult use will
interfere with any program of neighborhood preservation or renewal; or alt~
finds tha~in the case of an.adult bookstore or adult motion picture theat:
the ham created by the use is outweighed by its benefits.
The special pemit of the Con~isston may be granted to allow new adul'
which would otherwise exceed the pemttted concentration levels. The find'
be made by the Con~nission are si~iliar to those required f~r the special p(
of the Board of Standards and Appeals.
The amendments also'contain the repeal of the physical'culture morat::
provisions, which was adopted by the Board of Estimate on January 8, 197~
The moratoriumwas, extended for three months, unttl'Aprl).~o 1977 by.the ~
Estimate on January 6, 1977 (Cal.)is5). With the enactment of these emen:~,
is no longer any need for the moratorium.
After further study and review, subsequen't to the public hearings,
C~nznission detemined that the following modifications to the amendments
appropriate:
l) Section 12-10 {Definitions) - Adult Use
The addition of language making the definition
and regulations of adult uses applicable to
clubs, where the'primary ac£ivity of SUCh club
constitutes one of t~e five defined types of
adult uses. Also the deletio~ of the provision
requiring adult uses to obtain Certificates of
Dec-panty within 60 days. This provision is
inappropriate in the Zoning Resoultion and
is solely within the jurisdiction of the
Department of Buildings.
2) Section 12-10 (Definitions)- Adult use
clarification of the Ccn~nission's intent
by the addition of la'§uage stating the no~hing
contained in ~he definitions or requlattons of
C
C C'
~lon of state law.
(
'topless' entertainment establishment - The
seating capacity limitation of such establis~ents ts
eliminated.
4) Section lZ-lO (~eftnitions) - (e) Adult
physical culture establls~ent -
~'diftcattons to clarify the Co~ission's '
intent as to the type of land u~e activity
to be regulated.
5) Sections 32~1B, B3-03, 94-061,.94-062'and
lOl-031 - ~odific~tion of the ~ratoriu~ on
physical culture uses which is beinq deleted.
lhis ~dific~tion merely ~orrec~ these sections
~ reflect the recently enacted moratorium extension.
6) Section 32-464 (A~ortization of adult use~)'-
TKe language of this section is ~dified to'
clarify the C~issions intent.
7) Section 73-35 a.d 74-46 ~ The languaqe
of th~ alternatiw finding of the special pe~its
of the Board of S~andards and Appeals and ;he.
City Planning Conmission is modified to clarify
the Con~nissiJn's intent as to the impact of
the grant of the special pe~(t use.
8) Correction of a typographical error that occurred
throughout the amen~nents by adding C6-9 to the
districts pe~ittlng adult uses. This district was
a~ways intended to be included but was left out by
a typographical error.
The Cc~rnission detern~ined ~.hat the amendments as modified are a.~nrop
and adopted the followinq resolution, which is duly f~led with the Secret
of the ~oard of [st~mate, pursuant to Section 2Rh o~ the N~ Yor~ [~y C~
RESOLVED. hy the City Plar. r, inQ Com,ission that the Zoning Resolutlo,
The City of t:c~ York. effective as of DK:m,ber 15. 1961. and as subseque
amended, is furth,',' ,iute~:,lcd h'f char, qes r~latJnfl to varinus Sections conc
10 H ~6~137
C
~htter in brackets ~' ~=F~~to-bn-aaitt~ed;
14alter under~ined is defined in Sect.ion 12-10.
Il-SO SEPARA~I LITY
It is hereby declared to be the legislative intent that:
(a) If a court o£ competent Jurlsdictio~ finds any provisions
' of thi~ resolution to be invalid or ineffective in whole o:
in part, the effect of-such decision shall be limited to t~.
provisions which axe expressly stated in the dec/sion to bt
invalid or ineffective, and all other ~rovisions o£ ~his
olution ~hall continue to be separately and fully ef£ectiv,
(b) If a court of co,-?etent jurisdiction fin~s the appilcation
of an)' provision or provisions of th/~ resolution ~ an),
zoning 1_o~_, b_uild_i?_g' o_r'o_th_eE s_t.rucrure, or tract 0£ land-
to be invalid or ineffective in whole or in peat,
of such decision shall be limited to t. he persan,
or situation i-_=e4iately involved in the controversy, and
application o£ ~n¥ s~ch provision to other pe~-son~, pre.ce:
or sir-ations ~hall not be affected.
[ (c) The provi$ion~ of a=ench=ent CP-23116 af£ec:£ng
81-0~1 and 96-~24 axe an entiret)': should a.~y por'.::.~ be
to be ~nen£orceable or invalid for an)' reason :.~e.-. ~.is e
amendment shall be null ~ void in i~$ entirety.
competent jurisdiction nor am)' administrative body
an), doctrine cf separabili.'O' or severabili:¥ :o $:'.'e amy'
of ~mendmen: C_:-23116 in the event an)' pot'.ion i$ f='~,C .
enforceable or invalid.~
12-10 DE F I N ITIOH-':;
Adult Use
An "adult use" is w~'/ ~f ~he following uses defined belc.. ~ :
~hall always be a prir:~/ ~s~ ~d ~ay no~ be accessory :: ;~y ::
includinE another adult '~e . In the case of a comb[nai:c~ of :
whe(rner co.mercia1 or nonoc6,..,mrctal, open to the p~.ic or open to a
~tmtted membership su;h-as a-~Tul~' or~;~an~';~ton and whether operated
as a profit or not for profit entity, Whfc~ contains as a prtmar)~ u_se_
or activity any of the five defined adult uses,-shall be and shall compl
with the provisions of Section 32-46 (Regulation of A-ult Uses). In
order to obtain Certificates of Occupancy all adult uses shall comply
with the requirements of Sectto 32-46 (regulatto~ of Adult Uses).
No a_d[l~ ~hzslcal culture establishment, whether pre'existing or
shall receive a Certificate of Occupancy.
Hothlng in. these definitions or in Section 32-46 {Regulation of Adult
Uses) shall be dee~md to authorize any activity which would other..~ise
.~ a-violation of state law.
(al Adult Bookstore
An "adult bookstore" is a bookstore or other establfshment havinq
a predominent or primar7 portion of its stock in trade in books,
· magazines, periodicals or novelties which are distinguished or
characterized by their emphasis on matter depicting, describtn~ or
relating to s_pecified sexual activttte) or soectfted sexual areas.
(b) Adult Motion Picture Theatre
An "adult ~otion picture theatre" is a ~tion picture theatre or
other facility used predominently or primarily for presenting
· 'cinematic material distinguished or characterized by an e~..:nasts
on matter depicting, cescribing or relatinq to soecified s~xual
activities or s_pecifiec sexual areas.
(c) Adult coin operatled entertainment facility
An "adult coin operate~ entertair~ent facility" is a ~oticn pict:
theatre or other es~:iish~nent containing one or more coin opera'
mechanisms intended :: be viewed individually ~hich predo~inentl.
or primarily present: ~Jteria) distinguished or characteri:ed by
an emphasis on mat:er depicting, describing or relating to ~
f(ed sexual activit!e: or s_~cified sexual areas.
)i76-~i ~7 Z:r
C C
(d) Adult "topless" ~e,%tertainment establi~h~en,~
An" adult eto?le$$e entertainment establi~huent' is any esta~li
ment whether or not aa eating and drinking place and whether
such establishment is authorized to sell beer or intoxicating Ii
for consumption on the premises, which pro~ides 'd-~ncers or aay o
for~ off entertainment that involves s_p.ecified sexual activities
or the display of specified sexual areas as the predomtnent or
primary entertainment activity off such establishment.
(e) Adult physical culture establish~ent
An" adult physical culture establishment" is any establisl-.~ent
which offers or advertises, by :e~bers ~. the c~:osi:e..
body rubs or p~ysical.contact with soecified sexual area~, whet
not licensed. Establishments ~hich routinely provide medical s
by slate licensed nedical practicioners, ele'c:rolysis trea?~ent
.. licensed operators of electrolysis equio=ent,-~a:[;..l..~ [~
culture establish:ent$. '. - ·
Specified sexual activities
"Specified sexual activities" are:
(a) Fa~an' genital~ in a state of sexual s:i..-alation or arousal
Acts of human =msv~rbaticn, sexual interc:ursc or scd:=y;
Fondling or other erotic touching of h~n genitals, pubic
region, buttock-or female bre~t.
Specified sexual
· "Specified sexual area~" are:
~) Less than cc=pletely ~d opaquely ~vered; (I) h~n gens
pubic region, (:) buttock, and (3) lc=ale breast belc~ a
ivmediately a~ove the top. of the a~reola; or
Human ~ale genitals, less th~n c~mT!elely ~--nd op.~qutly co
or huma~ male genitals in a disce.~..ably turR:d state, eve
c¢:pletely :~: opaquely covered.
1]
C
¢
32-1S
Use Group 6
C' C
C. RETAXL OR SERV~C£ ESTABLrSH~qTS
- Bookstores, other than adult bookstores" or coin ooerated entertaim
faci lities'* 'R
'Adult uses, ,~a.Tked with a double a.ster~$k, a~Te per~£tted-only in
accordance with the provisions of Section ~2-46 (Regulation of Ad
Uses).
32-17
Use Group 8
A. AMUSF.~iENTS
Theatres, other t.han adu:: r. otton picture :hea:.-es'' or adult coin
ooerated ente~ainment £acilitie$" or adult "tooless" entertainmer.
eStab 1 ishments ' '
'' Adult use~, marked '-'i:5 a double a~terisk, are pe.-a_itted only
accordance with :he :rovistons off Sec:ion 12-46 (Regulation of
Uses).
32-18
Use Group 9
A. RETAIL OR SERVIr'F
[~]· Physical culture :: health establisk~n~s, including
reducing salons, :.~-sage est:Lblish~ents or ste~baths, ether
a._d~li p_h~sical cu'rure establishments*'
[+ For a u._s~ in Use Er:u? 9, marked ~ith a cross, no new su:n
shall be permit:e: or establthefl for ~n inter:m period
untLl April 3. 1~-' fifteen ach:ns fr~a the or:g:nal effect
date of Chis a.nendmcnt, czcepc i.n r.h'¢ Soccial Thcitre Oi. strict
and the Speclal_____Clinton District where spec£al locatlonal :.-: c;
restrictions apply to such u_se._s. ,However° this prov£sion shalt
hoc apply Zo ky~na.si, ums used excluslvely for t. ho £ollo~i. ng sports
facilLties: basket, ball, h~ndball, squash ~nd tennis.]
Adult uses, marked vith a double ~sterisk, ~re pemitted only in
accordance ~i~h the provisions of Section $2-46 (Regualtion of
32-19 "
Use Group 10
A.' RETAZL OR SERVICE ESTABLI-~}~-NTS
Ea,/nE or ~[~inE places, wi~out restrictions on encer[a~en= or
d~c~n~, but li~ic~ co !ocacions in hotels, o~er =h~ adult "~ool[
accordance wi~h the provisions of Section 52-46 (Regulation of A
Uses).
Use Group
A. AMUSE,HEN-rS
Eat[nE or drinking plates wi;h6ut restrictions on enter:Binnen~ o:
danc~n.g, other than a~t "~o0[e$$" entertainment esatblishment$*'
B. RETAIL ESTABLIS.P~£:;,~
Bookstores. other fha.-, idu:t bookstores*' or adult cn:n c~erated
entertainment facilit:es**
C
ee ~ult-useS,
C C'
aarked wit~ a do~le ~terisk, -~re pe~i:.*ed only
in accordance with the provisions o£ Section $2-46 (Regulatiun o£
Adult Uses).
32-22
Use Group 13
A, ANUS ENENTS
Theatres, other than adult =orion oiccure theatres" or adult coin
~erated entertainment facilities" or adult "toni,ss" entertainment
establishments
e, Adult uses, marked wi~ a double a~terisk, are pemitled only
'in accordance with the provisions of Section 32-46 (Regulation o£
Adult Uses).
32-2~
Use Group 1S
Pemn¥ nrcades, or. her tha~ adu!: coin o_pe_rated enter:=ir:ent £scili:i
Adult use$~ marked wita a double asterisk are pe..-~_ir:ed only
in accordance ~ith the nrovisions of Sec:ion ~2-46 (Regulation o
Adult Uses).
Regulation of Adult Ose~
Notwithstanding any other pr~vision of this resolution including :
special purpose district adult uses a.re permitted only ~ithin C4,
C6-5, C6-6, C6-?. C6-a =ad C6-9 districts.
Any adult use which dcel not conform to the provisions 0£ ~his Sec
including th~se adult ares loch,ed in districts oLher th~ C~, Cfi.
C6-6. C6-7. C6-8 ~nd C!-9 districts or those adult uses ~::hin 50
o£ a residence district shall not be prior non-conforming uses.
In addition to being limited to such districts,.all adult uses
shall be subje'ct to the distance) concentration, sign and ~aortizatio
restrictions of this Section.
52-461 Distance iron a residence district boundary
No adult use shall be located with£n SO0 £eet of a residentihl df
The distance shall be determined by measuring £rom the edte of t~
nearest r_es_id_ential district bounda_~y 'co xhe closest lot line of
the zoning lot.containing the adult use.
32-462 Concentration of adult uses
'~.In C4 districts no new adult use may be established where,
an a~ea circumscribed by a line 1000 feet in perpendicular or r
distance, iron the center of the ~o~i~ l_o~of the proposed new
adult use two or =ore adult uses presently exist.
In C6-4, C6-5, C6-6, C6-7, C6-8 a-nd c6-g districts, no new adu!
~ay be 'established where within an area cir~scribed by a lin~
1000 feet in perT. endicular or radial dis~mace iron the ceo=er (
zoning lot of the proposed adult use three or more adult uses
presently'exist.
32-465 Adult u~e $i~n regulations
No sign or windo~ display for in respect of uny adul: use sha
display or describe a soecified sexual acli¥irv or a soecifie
sexual area. No adult use shall have more than one accesso~
business si~n, except that an adult motion
in addition have a =arquee. No advertisintEi_~nE~re pe.--~it~
for a~ adul~ u~e.
NO sign for or ~i:h respect to any adult use shall:
a) be illu=inated nor contain flashing lights of :ny SOT
cxcept tea: a~2~lt ~o~ion'~ic.'-ure. theatre ~;rquees nay
illu~ina:ej, and
b) extend teyt~d ~he street line, except for ~dul: ~oti~
17
C
C ¢ (
pic_tu_re_ _r=he_atre_ marquees.
52-464 Amort£zatlon ef adult, uses
Ali adult uses located in d{scricts et. her than C4, C6-4, C6-S,
(~6-6, C6-?, C6-8 and C6-9 districts shal! terminate within one
year' of the effect£ve date of this mnenchnent.
Al! adult ph~.si_.cal culture establishments shall te~-~in-~te within
one year of ~he effective date of this anend~ent, except :hat thc
_uses which unddr this ~mnedmen~ constitute adult ~hysi_c~_l c_ul..~u..r.~
e$=ablishment~ and which were required to be ~or:ized pursuan= ·
a prior a~encb=ent (CP-25116) approved by the Board of Estioate ~
Calendar No.85 on January 8, 1976, shall :erbinate not la:er th~
January B, 1977.
Within C4, C6-4, C6-S, C6-6, C6-7, C6-8 and C6-9 districts,
~ult u~es located.within'SOO feet 6f a residence district
terminate within one year of the effective date of this mmendme:
Within C4, C6-4, C6~5,.C6-6, C6-7, C6-8 and C6-9 districts, bey:
SO0 feet from a residence district adult ,,~es shall be a-~orti:e.
within one year of :he effective date of this ~nendment, in ac:
ance with the reLrulations set forth below:
C4, C6-4, C6-5, C6-6, C6-7, C6-8 and C6-9 districts shall
c~ivided into-:cnes for the purpose of dete.--:ining ~hich
uses are to be a~ortized. The boundaries o£ such :ones
be parallel to the westerly boundary of the district and
have an east-west dimension of 1000 feet. Where the east-.
dimension of ~7 district is less than 1000 f~et or ~he~e
dividing the district into one or more :ones of 1O$9 feet
remainder is less Caan 1000 feet, such distzict or re~ai::
thereof shall tea :one for a.morti:ation purposes.
Within CI districts, no zone =a7 contain ~ore than :~o ~x
adult u~es.
Within C6-4. ~-5, C6-6. C6-7, C6-~ and C5-9 dis:ri:ts.
any Cane cents;nS I0 or mOTe blocks or portions cf !0 ct
b|ocks, such cone ~av c:~tiLn thr~e existing adut: Uses,
Whenever the number of existing adult uses in any ,
zone exceeds the pemtsstble number of existing
adult uses for such zone number of such uses shall be
reduced to the permissible number by terminattn~<'
those adult uses closest to.the nearest residence
district. Where two or more adult uses are located
on different s_to_ri, es_within a single building the
~s_e located on the lower s.~t°_ry is deemed to be closer
· .. to the nearest residential' district boundary. Where
two adult uses are equidistant from the nearest resi- '
dential district boundary the adult use occupying the
larger floor area shall be the u_s~ which terminates.
32-465 AcceSsory off-street parking an~ loading requir~ents
All adult uses ·shall provide accessory off-street parking s;aces er,:
accessor~Loff-street loading berths in accordance with Secti:ns 36-:
(REQUIRED ACCESSORY OFF-STREET PARKING SPACES FOR CO).~ERC!AL OR
'CO,.~UNII'Y FACILII~f USES) and 36-32 (REQUIRED ACCESSORY CFF?.STREET
LOADING BERTHS). For this purpose, adult uses shall be considered
uses listed in th~follcwing Use Groups and having the f:iic'.ing t~
requirement categories:
Adult bookstore - Use Group 6C, Parking Requiee~ent Cat~:ry ~
Adult motion picture theatre - Use Group SA, parkinq
Category D
Adult topless entertain:n,,ent establishment -Use Rrouo 6A, ?arklr.
Requirement Category B
Adult coin o~e_rated entertainment facility -Use Grou~ l~.:, Par,
Requirement Category E
Adult ~hvsical cult?e establishment - Use Arouo 9~, Part!~
Require,-nent Category B
53-30 ENLARGEMENTB OR
pro~s~o~ app~n~ ~o~ dZstrLc~ bo~d~e~, ~ b~
Cloor ~a ah~l not create ~ew l~t~cos of such
or ln~e ~he de~e of '~ioll~lon p~vlo~
' ~d provided ~h~r ~ha~ In ~he o~e of'~ ~ult uae
is l:o be anor~lze& pursuant 1;o the provisions of Section
32-~6 (Regulation of Adult Uses) ~hall no~; be extended, ex-
pandod or altered.
73-35 Adult Uses .. ..
In C4, C6-~, ~-5, C6-6,. C6-?, ¢6-8 .and C6a9 districts, ~?
Boar~ may, subject to notification ~nd review by the ad'fez
Community Board in accordance with ~ection 668 of the, New
York City Char~er -'.nd the Uniform Land Use Review Procedu:
e-.erupt an existing 'a~ult ~e, other than an adult oh~s~c_~
culture establis~.en~, from ~he r~qulrements of Section 3
(A~ortlza$1on of ~u!$ uses) notwithst~ndin~ the provislo
Section ~2-$62 (Ccncentrmtlon of adult uses) provided
Board finds
a) the use does n~$ s~versely aFFect adJac'ent
b] the ~oninE !c~_ containing such adult use is .-ors
500 feet fro-- the nearest residence d~strict,
o) ~he retention of =he adult use would not or~a'.e
concentration such aa would be contrary to the ~
interest or would adverse]j affect the surroundl
neighborhood, and
d) the re:enrich of such adult use would not he co
to ~ pro~ra-~ of neighborhood p:~servatlon nor
does it in;effete with
or alte.--n, atlvely finds that, in the case of ~n"adu!; be
or ~dult notlon ~i=tu~e_ theatr~ under the condi=Ior_~ o'
:;7o0137
~u~rds lnposed, the hazards or ~lsa~van~a~s ..
o~ such special permit use at the particular site-
ar~ outweighed by the a~van~a~es to be derived by the
grant of such special
.74-~6 Adult Uses
Xn Ct,-C_6-~, ¢6-5, 06-6, ¢6-?, C6-8 and C6-9 districts, the
Commission ma~, subject to notification and review b7 the
affected Community Boax~ in accordance with Section 197-c
of the New York City Charter and the Unlfo=-a Land Use Revie
Procedures, .permit the location of an ~iult use, other than
an a~ult nh~s~_cal culture establishment notwithstanding the
provisions of Section 32-462 (Concentration of adult uses)
provided th~ Commission finds that ~
_a.) the use does not adversely affect a~Jacent pr~per:~
b) :he zo_n~_ng 1_o~ containin~ such a~ult use is :ore
than ~00 feet :rom the nearest residence dis ..... ,.
c) the a~dltion of such adult use will not create a
...... concentration such a~ would be contrary to the
public intex'es: or would adversely affect the sur-
rounding neighborhood, and
d) the addition cf such adult use will no= be oon~.r~._-
to any DroErau of neighborhood prese-~a:!on nor dc
it ln=e'rfe~e with ~ proEra~ of urban'renewal;
or alternatively finds that, in the case of an a~u~- book:
or adult motion ~lcture theatr~ u.uder the condl~ior~ crs
guards imposed, the hazards or disadvantages
of such special pe~i: _~se at the particular site are out
weighed by the advantages to be derived '
by the gran", of such special per-mit.
N700137
85-03
Use Group "LC"
G. Retat! or Service Est-~bltstu~ents
[.] ~42. Physical culture or health establishments, ~ncl~ng
reducing saZons, =~ssage estabZts~ents o:' ste~ bat~s.
~Fot a ~ tn Use Group LC, ~a~e~ ~t~ ~ ~ss, no ne~ su~ ~e~
shall be per. rte& or established ~or ~ interi= per~od ex:en&tng
~til ~rgl 8, 1977, f[fteen nonths [~ th~ original ef~ec:g~e
date of :his ~en~ent. However, ~is ~sion shall not apply
to ~i~ ~ed exl~ively for ~e ~ollo~ing sports ~cLli:ies:
b~ketbal~, h~sball, squ~h or
94-061
Uses pe~itted ~ o[ right
[*~ Phgsical culture or health establi~en:s, ~ncluding
reducing salons, ~sage e~c~l~s~ent~ or s~e~ b~ths.
For a ~[ listed ~n Section 94-061 (Uses peaL:red ~ of ~ghc)
marked wi~h a'cros~, no ne~ such ~%~sh~ll be petit:ed
for ~ tn:erim peric~ extending ~til April 8. 1977. fifteen
months from ~e original effective date of this :cen,ken:. Howe
~i5 p~vi5ion shall no: apply to ~i~ u~ed exclusivel~
for ~e following ~por~ facili~es: b~ketball, h~dba:l, squ:
or tennis .~
94-062
U~ Group SB
[*~Physical culture er health establishnents, inc!uJing
having a rated ~a::~ of not rare th~ 50 people.
95-081
Use Group ? '
For & u~ listed Ln Use Group SB, marked with a cross, no new
sum u~e~ shall be pe~itted for an interia period extending
~til ~ril 8, 1977, f£ftcen months from ~e original ef£eccivc
date of this ~cn~ent. However; ~is provision shall no~ apply
to gy~n~i~ used exclus£vely for the following sports
b~kecbaZl, 'h~all, squash or tennis ~
~ui~s, reducing salons, m~sage establishments or
[- For a~ in Use 9~ T, m~ked wi~ a cross, no ne~ su~ ~e~
shall be pe~i~ed or es~lished for a ~l~r~ period e~endi
date oi ~is ~en~en~. However, ~is Provision shall no~ ~pl
to ~i~ ~ed exclusively for ~he iollowin~ spor~ facili:
b~ketball, h~all, squ~h or tennis.]
99-031
Use Group ~
4,
R~TAIL OR SERVI~ ESTABLISH,~BNTS
'Physical culture or health est~,blish~ents, including
reducin8 salcr~, ~sage est~lish~ents or sce~ ba~hs.
For a u~ lib:ed in U~c Group ~. ~arkcd with a..cro~s, no ne~
such u~e~ shall 2e pe~ittcd or established [or ~ interi~ p
extending ~til ~r~l 8, 1977. fifteen =on~ha fro~ the orx~
effective ~:~ o[ :hi~ ~end~ent. However. L~is prov:fion
.no~ ~pply ~o ~y~l~[~ ~ed exclu~tvcl~ for ~he follow:ag
f~c~l~ies: b~:~ball, h~db2[l, squash or
101-031
Use Group Y
D. Reacail or' Service Escabl£shmencs
[+]" 41. Physical cult ,J. re or health establishments, including
~y~nasiums, reducini .salons, massage establishments or
stea~ bachs.
For a use listed in Use Group Y, marked with a cross, no new
such uses shall be permitted or established for an interim
extending tmtil April 8, 1977, fifteen months from the origir.:
e££ective date of this amendraent. However,' this provision
hOC apply to g~na3iu:~s used exclusively for the £ollowing
£acilities: basketball, handball, squa3h or tennis.]
[81-021
Special use regulations
V~nen per-~itted by the underlying district regulations, physical
or health establish:eh:s, however described or advertised, incluf
vithou~ limitation, :eC'.,cing salons, massage establ£s.kments or
baths, are restricted to locations in transient hotels wi:h 200
or more provided thc: .~o sucia u._s~ and no accessory business
upon a street or l~ubli: way and con~nunit), facilities or bu~_ldin_[:
predoninently occupied by a coca,unity f_ac._il._it_~. ~ere such ph)'s
culL'ute or health eslablishmenr, s contain.any o£ the
size'spor:s £acilir~es: b~sketball courts, handball rout:s,
courts, tennis courts ar a s~i~ming pool o~ a mini~-n 1,530 sq,
such Iocational rest?.c:ion shall not apply. ~here a u~e is
non-confor~inj~ by su:~: lo~acion restrictions, and uhere such
not occupy at lea3t 4.£00 sq. ft. on one £1oor ~s c~ Oc:oDer
such use. shall Cer-~:r. at.~ not later than one year after the
date of such restri~_l:~n, a~d thereafter thc space fo.'~.~.er!y
[° Regulation si=e shall mean:
Basketball Courts - ~i~t~ SO fleet; 'length 8~ feet; c£ea.r height
20 feet minimum.
Surrounding the perimeter there shall be a minimum ofl $ £eet of
clear open space.
Handball Courts - w~dth S$ fleet a: back end; length SO flee:; cle-~
height 23 fleet.
Squash Courts - width 2S £eec; length 45 £ee:; c.[e_az he£ght 20 £(
Tennis Courts - width 60 fleet; length 120 fleet; clear height
at net, 8 fleet at wall lines*.]
[96-S24
Special use re~lat~ons
~en peri:ted bY ~e ~derlying d~str~ct re~la:ions, phxs~cal
or heal~ est~lis~ent~, ~o~ever described or advertised, ~nclud~
~ithou: l[~Lt~t[on, reducing salons, e~sage esc~lis~ments or
baths, are res'tric:~ :o location ~n tr~sienc hotels ~t~ 200 ro~
or 2ore provided that ~o such ~[ or accesso~bus[ness s[~
upon a street or publ~: ~ag ~d com.~ic~ facilities or
predominenCly occupt~ by a co~t:~ facili~v, t~cre such p~ys~
culture or health es~blis~en~ contain any of :he following re~
size * sports facilities: b~ketball courts, h~db~ll-cour:s, sqt
courts, tennis courts or a swt~ng pool of ~ minL=~ 1,SO0 sq..
su~ loc~ttonaL restrLc:~ans shall no: apply, h~ere a use rende
non-confo~tng by su:~. !ocat~ona~ restrictions, ~d where such u
does not occupy al least 4,S00 sq. {t. on one flloor as of
197S su~ ~ shall :~in~:e not la%er ~ one year al:er :he
date of such restriction. ~d thereafter :he space fo~erly occt
by such use shall be used only for a conio~ing use.]
25 N7~0137 :R¥ --
Begulation size shall mean:
Basketball Cou~ts o width 50 feet; length 84 feet; clear height 20
fcct minimum. SurroundLng thc perimeter ~her~ ~hall be a mininum
of 3 feet 'clear open space.
il~dball Courts - width $S feez az ~c back end; lcngzh S0 feet;
clear height 23 feet.
~u~h ~ur~ - w~d~ 2~ feet; length ~ feet; c~c~ height 20 fce~.
Te~is Courts - width 60 fce~; length 120 feet; clear height ~2 feet
az ne~, 8 ~eec aC ~11 l!ncs.]
¥ICll3R I~ARRERO, Chairman
ALETd~NDER COOPER, GOR~O,~( J. DAVIS,
$¥LYXA DEUTSCH, i~OWARD B. EORIiS~EIIt, Con~issionefs
)4ARTIH GALLENT, Vice-Chairman, concurring
¢ONCU~4NG ST&TE.'~,NT BY ¥~C£-CHAIP,~,~A,N N.-~.TIN GALQi.NT
N760137 ZRY
January 26. 1977
Although I concur in approval of this legislation, I have a deep
and unresolYed reservation as ~o the result o£'the inclusion in the leg-
islation of adulI book stores. From the info~ation that has been pro°
v£ded, I do not believe thit it is possible to enforce this aspect of
the legislation; and in fact it may result in abuses.
I, therefore, reco~end tha~ the Board of Estimate adopt the letis-
lation without the adult book store.controls. -
DETROIT'S AP--~29DACH TO ~GULATL-NG THE "kDULT" L~ES
Adult strips, Book Stores, Go Go Barns, Topless Bars, Bot-~om-
less Bars, Adult Theaters, Peep Shows, M~-~sage Parlors, Nude Photo
Studios, Body P~.'.~E Studios. The List is ~lmos~ endless,
~ of 'these uses de~_!, in one fon~ or another, in sex fu
either the first or T/Li=d person; sex in the first ~e~son--prosti-
tut-ion, where the patron acwm~=lly participates; or, sex'in-..the
~%~i person--where .the pa--~-on only observes others par~icipa*~'~g,
6r mov~E or pos~E /n su~am_s~J, ve mot/one or positions.
Words such as porno, prono~aphy, sex, sexy, loud, ~oss, oh-
scene, vuloo~r, exc!~g, sen_=cous, s~/mula~ug, f/lthy, d/try, etc.
mean somet~*~ a~*£eren= to each of us --po ss ihly as many me~*nZs
as ~here are people ~ the room here Lhis ~t~rnoon.
Some feel, Beem,~e %~his is America, that we should =11 he
allowed to read, look at, or do exactly as we ourselves please,
under the freedoms ~uar~taed 5y the ~. S. Cons~tu~on end its
amendments.
Others fe~_l that, yes, we can read, look at or do exactly as
we please, as long as what we read, look at or do does not imp_ede
or i~=ringe on someone else:s r!EhTs, ~c!u~-/m-g b--~s right t6"~_xpec~_
~hat h/s v~lues of heal~u, safety, morels and g~eral w~l *are for
.h/ms~!.-', h/s family, and b~_~ comrur~ty, wu'~__! he protected and w.~l]
~Z he infr/n~ed u_non.
Because these very same v~lues--hea!th, safety, mor~ls and
general w~] ~are--are
~d fi~g t~t ~ese ~es of a~ uses shoed he re~a~ed or
con~ed on t~t b~. Zn~.
Most major cities, because of their size or.loca~on, find
it necessary to provide iu their Zon3~u== Or~*n~uce for ev~ con-
c~v~le fo~ of ~e-(~ lon~ ~ it. is le~) ~T~nE f~m .~he
w~lesome s~e-f~!y deta~ed ~e11~ =1! the way up (or
d~4nE on yo~ perspective) to the obno~ous slau~t~r house
o~ r~der~ pl~t, ~u~n~ eve~ ~e of le~ ~e be~e~
~%ese ~o ~emes, ~ne =A~t Uses'-' ~ ~ ~e
uses fo~d somewhere be~e~ ~ese ~o ~x~mes.
Experience has shown, in. Det-r_oit aT leasT, ~_hat the adult uses
t~_nd to establish .themselves Ln convnercia~ areas, g~nerml.]y on
m~jor thoroughfares, used by ~stt~~Ces ~ud c/fy dwellers alike,
pri~ari].y a!long those s~e_~ts leading irrto and ou~ of ~he Cen~r_~l
City. They have for~ed conc~n~r_ations /_u co,-Tnerc£-=l areas
the car and t~11 her where her husband's car was seen at a cert~
t~_me and date. A very effec~ve way of redu~E the n~mbe~ of
~-_stamers comin~ to this parti~,_lar estmb!/shment. So effec~ve
was it in fact that it went ouT~ of business in a matt=-r of days.
The ye.mr was 1969 wh~u Detroit first became aware of the
existence of. these so-c~l 1 ed '"Adult ~ses." Police
,~theaters, and 2 a~,3t 'book ~stores in 'e~?~t~uce at ~hat ~e. By
]372 the z~mber of these uses' h~d mushroomed and had ~xpanded to
?~ topless ba~s,'.lS...adu!t theaters: .and 22 adult Book stores.
The City beg-=~, to re=l*me t~hat this prohl~n wasn't just a
passinE fad that, if i~uored and given, time, would =~o away. A1 ] e-
gations were he*~Z made ~hat mmuy of the Cindy's ills--crime: d~_,Es,
prosCriPtions, de ~c!ind~n=~ schools ~ de~zBrinE nei~uborhoods ~ ~oa_-ded-
comme_~,ia! strips, et=.--wet=_ em~sed, at least .Lc pa_~, by ~he
exist=nco of these so-c.~l ~ ed "A6~I t.Uses."
A Task Porte was created, made up of repr~senta.~_ives of the
Vice Squad of the Poi ~ce Depa~.h~,ent.. at-~orneys from the Law Depart-
merit, Inspectors from' the B,,~ls~n== Depar=u~t and P!mnners from
the City P!~u Co~,,~ssion, as w~]l as representatives from severm!l
o~her depa_~u~ts and a~_=,~.aies de:l~nE bo~u ~ect!y and ~..d/rect_ly
with Land Use Controls.
Format: defLne the prob!=_m; sug~=est alternative ways of
d~Ln~ with th~ probl~. ~ce we ~d d~e ~s, we h~d ~ p~per-
ly d~Lne the ~es that were e~sLnE the p~bl~m. So~ e~?
It's no=~ Eye,one ~ows what a ~ bool~ store is.
Eye,one ~ows what ~ as~lt ~eatsr is. ~ght? However,
w~r one t~ He ~s ~to wor~ is some=?~E ~se. ~ com-
e,se ~d ~st as m~y ~fer~E ide~ ~ud op~o~ ~ we
pe~le_ on ~he co~ee. ~e ~2~k was ~ dez'~e .the ~e so Tn=t'-
tP~se book stores dee3 ~n~ ~C~y ~u tD~s ~.d of m~Cer!~ or who
had a si~fic~t pc~on of ~e~ sto~k Lu ~ade Ln t~s
wo~d f~ ~~ the d~tion: ~t ~hBC t~= co,er ~ag store
~lay~g a s~e eo~ of P!avbov n~ To z whole stm~k of
Home Jo~s w~d not fm]] ~~ the def~uf~on. L~ise
b~]] of f~=- _ ~ ~B~i: ~ut who o~y occ~5~]]y sho~ ~ ~ o~
rated mo'~e. Or, to Ln~ude ~e topless k~ ~t to ~y to avoid
~u~ny ~he et~c b~ fea~g Belly D~ncers. We ~d to
p~e each deletion c~e~] ]y so as ~ Ln~ude Those we
to Ln~ude ~d to avoid ~u~g those %'e ~id .~. We ~so had
to avoid ~nd~n~ a def~on ~ ~ ~'~!on, ~ch ~s
~otie or ethic d~cers." If we ~d, we wo~d prob~ly have
fo~d o~s~ves be~ accased of being ~scri~atory, or, worse
yet, fo~d o~s~ves ~th a r~h of "toD!ess" b~s c~]]Lng
s~ves "~otic ~cer" b~s.
The defiuit~ior~ we f~.al!y decided upon are iucluded in the
packet of materials available on the bask t-~ble. .~.so included is
a copy of Detroit's Ordinance defining the types of
permit-~ed and prohibited ~ a topless ba~. Another item in ~he
packet is the rewiew aud a_=peal proce~v-es in effect in Delco!t,
Luel~d~ the re._,~emant for a nei~=hborhood survey to be con-
ducted~ f"7~'ed, and verified prior to making application for
spscia!-use
We in De~oit were fortunate in that we ,lvezdy had a Sec~_'on
'~n o~ Zo~E Orr~'~"nanca.. to ~'~_b we could add ~he a~,lt uses. As
you know, most Zom!~g Ord~-~ces ~re w~it-t~u so as to avoid or pre_-
v~t the mixf_ug of iuccmp_a~h] e uses, so as to ~oup sim~3 ar ,uses
together in t-he same zoning classification. De~_~roit's Ordinance
is .writ-t~n in t~his m~-muer, too, except for one Section which does
just ~he..opposite.. Ba~k in 1962, when Detroit was iu the process
of clearing it's worst Skid Row area through ur'nan r~ew~, we
noted that there were ce_~t.~{~ uses in the Skid Row a~em which were
at a much higher conc~__tr~-tion thau existed anywhere a!se %-u the
Ci~.. These uses Luc!uded ha~s, _~awnshons_, pool ~1 ! s, secon~h~.d
stores, cheap hot ~s!s, and .~ab] fc lod~ng houses. We bec:me fe-~-
g,?l that wh~u the exist~-ug Skid Row was damo]_ished the uses would
mer~!y relocate to another ~rez ~ud foam a new Skid Row whe_~e none
had existed previously. Therefore, an O~-f.~u~nce a~udm~nC was
proposed and adopted which regu!~ated these uses by. prohibiting
the est-~b!iskm~u~ of any one of the uses if, wi~-h/n lO00 fee= of
~he proposed location, there already existed two or more o~her
re=~_l~ted uses. The 1000 foot distance was s~lected because most
of ~ue blo~_ks ~ ~ue existing Skid Row area were 300 feet square
and a ii. ce-block distance bet-~e=_u t~ese uses was found to be a
lo~=2cm! and appropriate separation. The 1962 amendment also
· eluded the ri~ut for sm applic~ut to re~.aest and be gr-:,uted a
w~iver of tY--~s distance probfhition if certs3m fiud~ugs could be
made. Bec~e tP~s Re=~lated Use Section of ~he Zou¢~S
had be_=u on ~]ue books for t~n years and had witkstood several
ch~!!en=~es Lu Court~ it seemed appropriate to reran!ate the
uses in a similar m~nner. Ln addition, as I previously
the adult uses re~_~e that a neighborhood survey be conducted
the ~ppl/cant and be verified by the Ci~3. Other uses iu De~.~roi=
have for ye=rs re?~ed a neighborhood' ~c_-vey; ~_nclud~g: pool
hal" ( ........
r~u~l h~ !~, packaged beer, wine and Li~,~or stores~ ~d motor-
cycle clubs. Over the years the su_~vey requirement has also
wit'-~tood Cou_~r cbc! 1 enges.
Bet~.~e=_u !972 and t_he pres~nT, we ha'~e oroeessed via these
proce-~. ~res a to~s3: of 8 new a~!t uses '~ ! ~f wkicin were of
topless bmr v~~n~Lhe 8 were approved. No requests
have hem submi~ed for adult hook stores or a~!t movie ~ue~_ters
sLuce the Ora~ance's adop~on in lgY2.
Po] ] owing the adop~_on of De-+u~it: s re=~,_lat!ons, the number
of adult busiuesses opera=Lug, Luclu ~d!ng those approved 'under
De~_-roit's A~lt Or~nce, has actually de--ed from tP~ !972
hindu to the ~_~r_~_ut ~5 topless bars, 12 adult tiueaters, cud !8
a~, ~t bookstores.
We have f~d ~u~t this red~ction can be at-~r!b~ted to ~o
series of ev~ts,'.~e' ~d re~t of each be~uE proof of ~e effee-
~v~ess of o~ Organics.' "~e is'~t ~ue o~ers of m~y of the
~]t ~es ~e t~u~ts ~ ~e store f~nts Lu w~ ~ ~m
located rather tD~ owmers of ~e store f~r.~s, ~d at the ~d of
t~ ori~ le~e p~!od ~he leases ~m m~uy ~mes ~t ~t~ded
for one re,on' or. ~other, '~d ~e ~~.ce prev~Cs r~oca~on.
~e other is t~t, became ~he Orinoco res~icts a new a~t ~e
f~ moving ~ ne~ ~ e~s~g as~,tt ~e, no. cone~z~Son c~
be cre~ed ~d, therefore, ~he sit~ ~esn:c ~d u~ be~g ~ lucra-
tive f~ci=l~y as ~he b~es~ h~d ori~u~]~y thought ~ud
the Ord~n~ce mes~icts ~s r~oca~Lon to~ a more lucra~ve sits,
Even though the ~er of adult bus-'_~.~sses b~s decr?_sed, the
~,?es of aS-It bus-Luesses have {ncre~_sed =c now .include 2 ~e__~!ar
b~s showing "X~ rated movies, and 9 mo~-~!~ sh~-3~ ~X~ r~ted
movies on closed cir~,_it ~J. Po~-L~nately DeS_~roit has not yet had
to de=_l with the rela~ve!y new a~,~t .bus:ness which includes
Live sex on stage, as I understand has rec~uuly be=~un Lu Cal~-'ornia
and elsewhere. We feel that our OrP3u~ce as ~it-~=_u, even. ~uou~u
it doesn't men,Son ~hese n~.~ %-ypes of uses specifically, p~perly
con~ro!s them, and each~ ~r~ _ c,,_rr_~.tly in Ccu_-~- for f~lure to se~,_re
proper permits ~ud lic~_~es p?Lor to be=~:--:-g opera~ons.
You w~,,'~, ~, note tb_~--t Detroit's Or~u~u~_e is si!_=ut on ~he m~-
saEe p~lor. ~s was on ~ose: even ~u~u~ ~he m~sage p~lor
is ~ly~ one of ~e uses, if not ~e most
a~t s~ip. ~s s~ee was became it w~ ~ed t[~t each
of the other ~es of ~sted ~lt uses
operated wi~u ~e law; ~t, ~e ~e cf
witch ~e aM:~ t s~ips ~ m~y a ~=r for
no~ to a~T to re.ate a use that is
The loving-'mate or bona fide massa_~ uarlor is c~-us~'uE no
orob!~m.. The bus.ness i~se!f, as w~l~ =~ . ~ oersons ~v~u~ the
massages, are both lic-~-~ed by the Stats zf Mic-hi=~a~----~-e C!t~y
of Detroi~~l~-ehese uses and these controls in ~c!ude a
re_~,~.'~.'~ement tb~t a massage can only be perfo_.~ued on a person of
the same semi Copies of Detroit's controls are included in your
packet.
As 'you know, Detroit's Aa~t Ora~umnce was ~ppemled ~h
each of the lowe~ Courts amd w~ ~u~ ~he S~h C~~ Co~
of.~e~ ~11 ~a way up
~he U..S. S~r~me Co~ de~si~ ~ ~uded ~ ~e packet. You
Sho~'d t~e the conce~s ~ressed
~e~ ~o thor opL~o~ ~d c~e~ ~ you '~or ~he Ore. em
to the ~a~ nee~ of yo~ ~ ~o~~. Yo~ Ore~ees
shoed be ~i~ ~ ~e
l~.~ed ~ C~: bec~se ~ey ~-11. Cover yo~ bases. Be~
for~ed .~ d~fu~t~y b~E fore--ed.
You w~] ~1~o w~t to co~e the De~i~ theory of ~ers~
~th the BosUn theo~ of~ cone~z~on. ~e ~ Pl~E Ad~-
so~ So--ice Eepo~~ ~327 ~Lves a ve~ co~r~h~ive co~ison of
~he Boston ~ud the DeVoir me.nod
r~T~ations reg~g m~s~ p~!ors ,pLa ~c~usLnE, not via a
You must rama~_ber ~duat ~hese so-c~] ] sd am~t ,uses ~re ..very
lu~a~ve ~esses ~d j~t the a~p~lon of re~a~ does not
~e co~~ce ~d ~ ~ud to yo~ prob!a~. ~orc~m~t is ~e
key to ~y n~.le~sla~on. ~ese ~es ~e ~n~~y so f~-
~y success~ ~t.the o~er c~ s~ecC to ~re a~o~s,
pay the flues, ~d s~y ~ ~s~ess ~ !cue ~ he c~ withou~
b~efi~ of pe~t or ~c~use. ~ere is a network of a~o~eys
de~ or~y ~ r~s~E ~ Ad~t Use C~es ~ Co~; they
~e ~es ~d ~]] ~he loop ~les mud ~]] ~u~ ~o~ of prizes
Co~ decisions ~d ~hese ~e ~d to Their
Ci~ Luvolv~d.
Detroit currently hms several eases p~d~ng in Court invo!v-
inE the topless'bars, ~he a~t hook stores: the adult mowle them-
tars, and The mot ~m!s and bars showing ~ rated movies:
both of tb_= movie theaters that were ~gclved Lu the case heard
by and decided in our f~¢or -~y ~_h~e U. -=. = .... o Con--' -.'~ ~ a76
Both of these cases are cu_~r_~tly in tZne Wa'Fne County Circuit
Co,u_-t, ev~u thou?_h the U. S. Supr_=m,e Cou_-~_ ss_id that There were
no '~olaCions of Federml Cons~-~ation~! ?;~uts in enact-lng T.he
De~_~roit Ordi~nmnce and that the City has -_he right ,to re=mm!ate
these uses in t~he manner in which it Des. ~here ham" beton no vio-
lation or ~d/_~ect pro ~hibition of P~__~st g~.-~-..dmenr REghts ~_ud, ~her=_-
fore, the ststsd purpose of pr. eservLng nsigP~oorhoo~s has be~_n
upheld by the Court.
The a~orneys for ~hese ~o t-,he~ters now s~y that tzheir
clients h~ve Vested ~ter~s~ ~u ~e~ h~esses ~ec~use ~hev wer~
Lu ~he p~eess of conve~uE to ~e ~t theater ~e at the
s~e ~e ~e !972 O~~es was ~aet~d ~d, therefore, they
s~d be ~11~ed to r~{u ~ le~ non~o~o~g ~es. ~ey
~ ~f~ed..~ the De. it Or~fn~cm, no~ ~t=n~{uE the fact
~ha~ ~e U.',~. S~or~ Co~ Dec. ion ~e~ly s~md ~zt ~hey
werm-~ fact"a~]t ~s~esses ~d were ~refore ~je~
second'series ~elves whether ~e Ordinate ~nplies to ~heir
operation'. ~e eyes of J~c'e se'~ to t~e a !ong.~me to fo~
~ on a =~b!m, ~n'~ they, e~e~]ly ~th t~ n~o~ of
Use A~o~e~s ~g ~sperz~y to prev~ ~t fo~g.
~ ~os~g, I ~sh I eo~d say t~ De~i~'s Or~u~=m hms
est~sb.m~ of n~ s~ips ~t, became Zo~g re~z~ions, cmn-
not he relative, sever~ of ~he s~lps ~sT~ug
is ~r~g ~d ~op~z~ with sever~ of the ~ers of
hz~ ad~t use ~~s To prepare ~d m~u~m~n a ~sT of non-
ad~!T uses ready ~d w~]] ~.g to ~ve ~o ~he sTorsfrcnTs ~ the
le~es on the a~ ~es ~e. In zd~on, ~he Co~s have
~so he~ f~r!y ~operz~ve ~ ism~ug "p~d lo~k~ orders on
~hosa m~m~e p~!ors where ~e ~ce ~v~ he~ ~m] a to p~ve
p~s~d~ion on ~e pr~ses. It is a consT~ upb~
because ~he ~!~!eged offenders ~e asked L~oc~.~ ~] ac~]
hy-ha~e, we ~e ~!e to ~ the w~.
0 ILD L~'A.~CE' 5'0.
Z.O.~I.~'G ~ .~DLq.~ BOOK a'l'Oh'~'''4.
3tL~! .%IOT;O.~' I'ICT%'I~£
· . .. ,L.'~D G~OL'~ -.D' C.%LL%R£TS
· A.*~ OHDI.~.a.~CE :e amend Ot~ltn~nce
o~ Detroit: to ~:u~ie tl~e u~e
' bull~ln;~: :o r~gulate 3ltd
t~ ~nd llte lt~tlon oi
. d~t;ned for ~p~n~c~ e~es; ~o
~te ~1~ ~cternti~e t~e :t~
.~ds. courtb ant/ oc~er open
· ~on: to provt~e for (~e
' me=c o~ ~ pro,n1 to deYelop
' a~R~de the up~e=~nce o( pl~c~
of bustn~ or otlt~ esc=~l~h-
~menc d~:~c: ~or Ute pn~menc
· oC ~8 COSC Ot ~UC~ l~t~ruYelltetll5
-e~lnc to t~e behests lu be
"tt;e~ llteteirout; lo p~vttle lot
· ~tuin~st~:lon ~ncl eniotcement oL
t~is Ordlna,ce: to pro~'i~c
~t O; ~ppe;l~ ~;td ils pow~
_ ~;~ duties: and ~o provide ~
. new ~cct~ns to be ~uwn ~ ~-
'Mort '~OoO;. :~.0023. ~nd
~ OF ~ C~ OF ~C~:
e~o~e~: O~ ~13 OT~IP~I:C~: tO
pr~C~ for ~ ~o:~ o~ Ap~I~.
tit tt~ t~et~f.' ~ a~enc~, be
~: :~u ~m ts ~ere~ ~c~ bT
.6.0.0.. 58.0[02. 94.03~. 95 02~.
IOt.CIOD ~ ~.0%~. ~ :~d
-C:c::cn 3:.00OT .
Actu', t,
O~oug
or l=Loxt'.:t:.'.~ liquor
T~on on
~o~ or
P3. w~:~hcp',
Pool cr
rcpor: an3 :t::.-.::::.~r.c:::-,: f::r.:
Cl:y PI'--",
Seco:on
e.-t:,CU'..~.'..' '~n¥ --Aclu:: ?,:'"-,~.
Y.~_ttlr. :,lc;io:~ o
· '.::'.::t T..t:::r.
~t:,h{~ 500 ~c¢'. O.~ =.~v ~' "
· -u..C...~ C:.'.-
· t.3,l Ul=~ · :co :¢ic.~.:: :, I. c'.v e !!'_ n ~ Or
tr.,': 'A-atvtr 3h:-': :.:: ~'~:_'-. tl:e
i.-.ti:c~tt~ approv-_l or' ::e ~rc~oseci
tu~la-'c::i usa by .~1 ~er ct.".:
the petit:one: s::::l i:::.'r..:: :~ C,~.~-
1.:Cf, 211 ell~tbt¢ ~:c:::~r..: -'~'.::'.'.r.
-%
I
'i
' 0
e
p~ of trafflc':raTa -_s · --mJor t2or.
sible dnm~= ~2~c:o~ by ye-
bT mc~ns cf pr~c~t cc~cr~(e
plmnte~ bcmp:r ~:~ ttO~
b7 ot~cr suit=bi·
On t~ ~Jde o~ thc
lnchc~.
c) W~ mc=h fcn:in~ n~c
qulred c~ t~:~ ;creole cf a
~ xcructur~ 3e:vln; thc
'. p~ Of ~ trace cr r~rl.
. su~ butldlnU or s:~c:ur~
~cd on ~d~accnc
ih~ll be p~ttc~ed from
-. ~e as sprci2:~ In 2) aOov~.
be paved w;:~ m pcrmnn:n:
z~a~ of concrc:~ or
tlc c~mcnt ~nd 31:311 be
&nd drainc~ in
AnT unp:ved arc: of ~l:e ~ite
oral·ri)' fn~it!on aC :11 tinily.
and ~pa~t~ from :~e pav~
~ea by m r~cC curb ~ o~er
equi~lent ba~i~r.
~d ~ov~cd. t~3: a ~t:cn re-
pe~ cf the Comm:a]ton'~ aceS:Ica
Jllall be fl:cd wt;h t~:
Council. ~'~ich shmll bccom~
vtthln that tl~c ~ pt~test
Juch deelalon h AIc~ with ~e Coun-
c.'] il;ned by t!'.e appt!cnnt crbT
:_= pttmt..es :n quo:lion. -'n 3uc."i
· veto', ti'.= Coun-"tl snail. ~y resolu-
tion. approve (ar a~,.~..;prove suc-~ uae.
· 3 rc~tt:alcd tn -eec:Ica -c't.OlGS. p.lr:-
S:cUon ~5.0~C, 0
~$.0~0 Fcc_rule'.ed, with
re;ulatc~ by Scc::o~t CC
b~' Section 6S.COCO.
'.'On to t~,C Jtature3 ar'a
· &~ror~l o~ :he Cotzl~t~:o~.
' I) ~u~3DemRc~' or pu~:lc
~u~tc. ~n~ shmt~ bu rc~:cvc~ tr.
SM~h ope~tlo~ co~tlLu:~ A
shall be 8:C0 A.M. :o !0:30
~IoLe!s or hoc=a ~ re~ul::ca
S~tton Ii.C0~
- - Motor vehicle body or {:noir
~o~r rtpn~rm~ ~rov:~a :h:~
ot ~dJ~ccnC to tc~C:Rc:~y
' propcrtr ~b3l] c:ns::t o: 3 3oho
~1 with ~o o~en:~x~ wha~cev~r.
e~plln~ th~: ~ requt:cd
c~: d~r. cf mm:mum
~oJcd ~7 nn op~q~te w:tl cr fer,~ of
nemt and o:Ucr~y f~h:on :: .~t :::::~.
~7 contnl~ non-rca:cch:mi ~
::c:!?.ed in Ar:'-c!e ~
.by -Ccc:ton
:o ~.- fuP, C'A':.n'~. .*·~U:...--...-::Z.~,
· ::c,'~ %';t1% ;.':vel..-la;. or
comp--:::le m::er:ni =:= :r:::-
c~ ~.~c.
bi . Zn~re:s ande, _--r-.. .'~ -'~:ll
{:tnt :1'.= [:t:.-.::~:l
of t"e }:or.c::F ~.m ri:a? ~.e cie-
ccr,-~:n::: oy :n.*
c~ I: I:T.%ctn~ ".3 ~r~v:cca.
lli."1:1:1~ $:$all be Su-'~- .-;:.'~'..
An c9:quc fe.'n:a or .'~-!l ct
~-ooct ~.- n:nsonr-..
zi~- feet :Jr r.c:~.'-.;., ar.'-l!
st.-ut:r4 ~e:wten :r.e :.:-::v..
~te an: any :cltA:tn:
s~r. '-nC :.~e of fcuc:
t:e :ubJc:: to t"-e ap~:ox':.t c~
c: :end-. $:~:!1 '~¢ ]::o:c:::~_. '
l,c:~'ctc ca.'r.:; e
by mc:r-~ of pre:---:
::c-~c'~ :~ :::c r..?.:%
f) L.:uda;t?.;:c.'s or put, rfc
if. :n :t.e oDi:::on ~C :::e CC.'-*
..,mm.. ~ ~ _'=,-:.. ~uc.~. o~e c-' :.;c t:
or pt:: :.~.c:ccf :::-'Il be
wt:.~.:n one b,u::Crc'~ feet cf :'-7
clLm:.':::
hi Permt::ea h°urs cf
l!onr'--y :,~roucj.% St.:u:=-.?, --..._~
:L~rcs .ri:.~. ~cr.'~.ltLecl C2.~:.'~...'fC:'--' ct'
ct~.cr U:ea
o -.
OILD I~r&NL~ .~C
OILD L~ANCr. .NO.
Cg t~":~:~ 6~
~eq~men~ ot con~nt o{ ~1% o~ ~d~en~ p~y o~t~ to
~ve p~b~lon ~ ~t~l~men~ of adul~ b~
~ ~ of ei~.
~ ORD~NC~ ~nd Or~n~ ~o. ~v~. en~: '.~ 0~
and s~ct~ t~em: to re.re and ~mit t~e he~k th~
·nd l~on ot b~ngs: to r~te and r~wl~ ~be l~rt~u of
~d ~d~ ~d ~e l~tlon o~ Du~gs d~l~ed ~or s~ed
~ ~ ~d' decem~e the ~ o~ ~ co~ ~d o~
s~c~; to ~te the de~W of popu~Uoa; ~o pro.de for the
men~ of · proem to develop und upg~de the app~nce ot places
b~ or otAer ut~DUs~en~ And tO pro~ae a 1~
~lcc ~or ~e ~7m~t or the c~ of sucA ~provemen~ tccoru~g to
the bene~ to be der~v~ tAe~om: ~ p~ae for tAe
~ ~ro~emen~ or ~ O~ce: co p~de. rot A ~d of AP~
1~.~00, ~nd 1~.0100.
w~,-~A~, I~ ~ b~n ~e~~ ~ ~ ~n~en~
w~":~,' ~0 p~l~O~ ~ ~0 ~bll~h--~ ~ ~0~ ~h~
~. ~ ~ ~ ~ Group "D" ~ ~ ~o~ pe~t~
Wa-~, ~ ~ ~ Co~-~lon ~o~ be ~ bT ~
CED I~A.~CE .NO.
OH. DLNA-NCE .~0. I~4-H
CHAPTER 5
AI~TICLE 4
REGUlatE ENTERTAI~IENT L~
C~SS D
~ OEDL~CE to amend Chapter
~cle 4 of the Code of the Cit~
or DeVoir by amendin~ S~lons
~07. 5~07A. 5~-7.4 3~ld
an~ b? addinc a new section
~nown ~ Section ~*IG. to impose
en~3~ In probibi~d cofldu~,
impose crim~al sanction a~inst
ente~lne~ an~ dancers who pro
%'Jde t~eir se~l~ witlout obC~in-
in~ · v~ld hlent~on ~rd from
the Detroit Ponce Dep~tment.
slal~t boo~n~ ~en~ who
con~c~ for en~e~ainers to
~e in activities pro~tbRed b~ this
article, or with ~Dnret3 w~ich.
practice, violate said re~htions; to
prohibit pe~o~ ocher tAan enter-
~ from nppearin~ -topless":
and ~ ~qu~e registration of
cab~ec "D~ owne~ and ope~tors.
to ~qul~ their p~enee on
p~m~es dung busings iwurs, and
to ~qu~e posting of their names
and iacntlfl~tion p h ~ t o g rn p
while on duty.
~ ~ ~.~Y O~A~ B~
Set,ton i. ~ ~av~er 5, ,M%lcle
4 ~ ~e C~ of ~e CIW of
an~ by aaaln~ a new ~ec:Wn
~:lon S~7. ~e fOHOW~ ~les
ope~tor. ~ ~ent or emplOl~,
any pe~on ~ ~e pre.es. ~:
(a) ~g~e ~ or pz~ any
ord~ly ~nduc~ In or on ~e
or pemt~ ~u~ place ~ become
~o~ for ~eves, pros~ltul~, or o~
~r~eriy
(b) ~e In or pe~t, ~ or
u~on ~e lt~ed pre~, the
~g ~ sottct[~g lor le~ ~ter-
&ion, or~r ~y other ~c[ by ~ pe~3n
~votv~ the ~u~ or
of tho gc~ ~ ~tber.
~e ~c~ ~ to be ~rfo~ on or o~
~e lite--ed premier.
lc) En~agu ~ or pe~ on the
Itce~ 9rc~es ~T ~ ~e
sodcmF, best'-alt~, fl~eLl~tton or ~ny
other ac; b~ ~ pRson ~votvin~ [=e
toucn~ or con~t~ oI ~e gentta~
Oi
~q of the breu~ bu~. pubic
p~ o~ the pubic ~. pubic
(tv) ~e e~os~e of the
ot~er t~an ~ ente~s~er w~e
For ~e pu~ose of th~ su~ectton,
· fe~e breast ~ ~i~e~ e~sed
~ any potion o~ ~e br~ below
~e l~C~ely i~ve ~e top or
~eola. ~ e~ceed.
(d) Ferm~v ~7 pe~n ~ smoke or
permt::e~ or to en~e tn ~ucA
t~y h~e~.
o~r=:or, or h~ aEen~ or e~pioFer
u=~r ~:~= con~act. ~a ~ecurt~
~rom boo~:=~ ~encte= licensed by
b7 t~e boo~ b~en: Aaa :=e ope:~- "
lot. or h~ au:ao:=ea a~en:. ~ec27-
be provt~ea. ~=all be ~ept on
able for t~;ec:lon'at the :eques[
~Y office: c: :=e De,roi: Ponce
p~ent b7 :~e oge:a~r ct ~/
be In c~;e o~ t2e llcc~
~, Suc2 e::a~ne~ ~hntl COmpl7
~h ~e i~2~: laws of ~e at~te.
Boo~E a~=:~ ~d boo~ ~enc:e~
sh~l be re~ccnstble for an~
upon aem~=c cf ~y officer of ~=e
Detroit Pc!Ice Dtp~en~. l~=i~h
~ tAe ~e cf ~y ent~:~er
employe~. I: ~a ~ ~hwl~
~go ~ ~7 ~C~TI~ prohlbl~d b~
t~ ~lcle. c~ ~ ~e & co~t~c~
wit~ ~ c;i~r or a~en~ of a
C~et l~r ~ se~lc~ of ~ ent~-
adequate C~:I~ rO0~ ~or
~a fete e=~ers. ~ en~r.
~e ant ~:;=e pzrz ~ ~y enter-
p~ ~ one ~ or more per-
~-~ ~ ~ kep~ /zee o~ ~bl~,
~o be 3o1~ or se~e~ ~y
be~e~gee, or pe~ su~ ~e~son
~ce. loi~er or be emploFed on
(~) Per~ ~ployef~
en~n~, zo eac. ~, ~llcl~
~ oF o~e~e ~i= with
~ ~ ~ ~ ~on or ~e
~ce~e~ p~ ~ ~ open
of nc:~l ~o~ or when
~ o~ ~po~e over ei~h~n
~ ~e.
the
I~) ~:te ~ pe~t or ~ow
~b~q or ~o u~e, po~e2~1on, or
p~pbe~ 0~ ~e mech~c~
~ent devicea w~l~ ha~e
app:oved ~ acccr~anCe ~th
acco~nce wl:~ the pro~o~
(J) Pe~lt ~y per,on ~ rem~
~ o~ on ~e lic:~ed prem~ez
enq~Ee~ ~ c~n~uc: prohibited
(c) ~ ~ ~:lon or who
to puS]~ view &n~ por:~on
or her p~vate p~3 ~ ~e~lbcd
(I) lc) of th~
(hi Pe~l~ ~e e~lbltlon
plc~e~ ~ ~ deplc:t~
the ~ducc p~hlblt~ ~
(1)(c) ci ~ ~c~o~
I: e~ be U~L~ for ~7 pe~on
~ ow~ operate or m~na~e a
(1) He ~all be re~te~d with
~e ~1~ PoHc~ Dtpa~ment
(:) Ho. or ~n emplo?ee
w~c~tver patrO~ ~e prc~cn~ on
(3: Hh n~e. ~d the :~e oi tho
~7co de~ted by hi~
tem~or~.~17 In char_~e of
toqether wl:h p~cto~rapDs of suc~
ieacur~. ~all ~e p,om~tly ~-
p~yed ~ :uU vle~ of tAe llce~d
prem~es ~oqe~er ~:h t~e l~ce~e
~ued ~y t~e ~g~ ~0f Con*
~o~ C0mm~on.
~.
l~ sA~l ~ ~l&~ul for ~n~ ll~ff
e~ployee ~ employ ~ny per~n
da~er or enabler un:e~
pe~on po~e~es ~ v~Hd ~roup D
ter~ainer's lCen~:ntion c~ from
~crot~ Folice Dep~enc.
=on ~o provide h~ or ~
a d~cer of en~er~ef ~ ~ ~up
D Cabs:e:. u~esa suc~ pe~on
se~es ~: ~e place ci
~ Y~I~ Group D en~e~a~er'~ Identi-
fication c~r~ ~ued by the Decrol:
Police
~ ~tt Police D~ent
~ue o~ ~new ~ G~u~ D ~ret
~ppllc=n~ ~ ~vl~ c~le~ a
tl~tion B~t~u: p~vtC~.
~!~,:cncr O~ ~I~co ma
ldenc~ttcn c~. A r~or~ of con-
viction for ~ offe~e ~ot~&
bi.g, :~ccclc3. pros:~tuc:o~ pan-
den~ ct pc~o~r~p~y, or & vtol~-
,.uon cI ~ p~vmon
~ucle, ~ the pr~
ref~ :o ~de or ~:ew
renew~ ~u~!7, Such
~e De::oi: Poll~ Dep~en:
la:ton c~ ~7 oi ~e con~tto~ of
~uan~.
~ec. ~-I~.
Thc ~:llce C~ef ~ ~e:ebF
lzed ~ ~ke ot~er reasonable
tenancc ~: opera.on o: any place
or e~:::~en~ red.tea
~tic~. ~e:e dan~ or
by an: cc=~iy ~:~ the ~les
~ ~uc= :;:lure ~U be d-creed
go~ ~ :ufflc:cnt ~e
3~ :u:~c~lo~ by ~e Co:~er
].s. suea pu~t~n~ -.o t~ ~rtiCle ~nt~
~e~g on . ~
shall be ~e tva~bte ~ t~a llcen-
notice og
I~ sh~l ~ u~a~ ~or ~ pe~n
to violate ~y p~v~ton ~
~c~ud~g ~y ~les ~
~up:e~ b~ the Police
~e~eunder. or ~ ~ ~d
ORDI~A.~CE ~0. MI-ii
CHAPT£1t ~4 .
· ARTICLE 1
LICENSING A~D ~EGCL~TIO~ OF
~SSAGE PARLORS A~D MASSAGE
SCIIOO~ .L~D THE P~O~
- ~. WORKING THERELN
~N O~'~NCE to amend Ch~er
~, ~]cle ~ or ~e C~e of ~e
or De~}t by ~en~
~-l-~, 34-~-9, ~-~0. ~-~0~3, 3~-
A-~4, ~-~-~5. And ~*1-~6~ by
~-19; and by re~n~ ~ec~lons
~1-~. ~1-11 and ~-1-~ to pr~
vide for ihe ltcens~ ~nd ~u~-
' tion of m~e ~1o~ and
~h~ ~nd ~he peso~
~:on 1. ~ Chapter 34.
1 of ~e C~ of the C=~ of
34-1-1. 3A-1-2. 3~l-3, 3A-I~.
3A-l-~. 34-1-9, 34-~-10, 3~1-13.
· ~d 3A-1-~2 ~ re~ ~ follows: S~. 34-I-I
For ~e p~e of th~ Chapter.
the ~o~ow~g ~r~ ~ phr~ea
h~ve ~e mea~g r~pec~ve[~
(1~ Appran~ce or 5t~e~ ~
~ ~c~or ~ · ~e School or
~n · Ma[sage P3flor, ~ be~q tr~ed
or pr~tce of
~2) Conductor ~ An~ pa~on w~o
ow~, m~aqes or Is In ch~ue' of
~ ~rlor or ~e ~cbool.
(3) ~t~ctor ~ ~F pe~on who
~m~ le~ons or te~bes the theo~,
~eth~ or pr~t~e of
(4) $~s~e '~ ~e pe~o~ce
of m~nipulative .exerc~es u~n t~e
h~ bodF of another by
~e h~d or h~nds or wi~
~ec~tc~l or bathlnq device ~h or
~ou~ supplemen~a~ aids.
~5} M~e P3rlor ~ .~ place or
ei~b~en~ where · ~e
m~e ~va~able.
~6~ ~e Sch~l ~ AnT pl~e or
~e~o~ and p~czlce ~ ~age.
(T) Operm~ ~ A~Y pe~on who
e~q~es ~ the pr3ctice of or
Sec. ~-1-2.
~o pe~n etth~ ~ h~ or
with others, sh~ll own. es:ablLah or
matn~ln a M~sage Parlor or
s~ge Sc~l ucless C~e M~e P~-
lot or ~1 ~ ~uly lice~.
~o pe~o~ ~ act ~ · co~duc~or,
tnsz~ctor or ope~zor ~ ~T ~e
tn this Chapter unle~ suc~ person
cr ~ a ~aq~ere~ Apprentice.
place or es~bl~en~ ~ wh~c~ he
enq~ In h~ pr=c~ce Is
cens~. ~ · M~sage-P~lor or
sate ~c~ool.
~e p~vmtons of ~a ~i~e ~1
no~ apply ~o: !} · duly ~ce~e~
~) a pe~on en~agmg ~ t~e pr~c:~ce
of m~s~e on his spo~e or relaz~va
~thln ~e fl~C degree of con~-
~ltF ~ either of the~ residences:
or 3) m place or estabi~men~ w~lc~ '
~ a-duly Llce~ed Hospt:~. D~pen-
$~ or Convalescent Home. or
place or es~bl~,~ent w~ere
saqe u~n t~e face ~d ~ec~ o~
~ perfo~ed for be~utlf~
~etic pur~se~.
In ~ pro~cution for
of th~ ~c~e, thee exemptto~
co~sti:ute ~tive defe~
shall be lncumben: upon ~e Ce-
fenC~n~ to ~ow t~ he or :~e
involved ~ no~ su~J~ ~ t~e p~vi-
sio~ of th~ A~lcie. ~ot~q
~Dt~ed sh~ll be ~eemed
the burden oF p~f of ~e
~ the defends:. Sec. ~4-I~.
~e Lppllc~ for ~ lice~e re-
qulr. ed under the prov~lo~ of
of Health a ~Itten appltcxt~on there-
for. una~ cxt~. on z ~o~ pre-
~cr~b~ and suppll~ b~ t~e
~e~ of ~e~th. ~d e~l
snt~fncto~ pr~f of ~e re~u~ed
~ge. health and educaCon~l
provided tn t~ chapter..~
lion shall be conducted by the
· ~t~eDt of He,th ~ ~ccof~ce
~e~t. ~e ex~a~ion s~ ~cluCe
wr:tten te[:~ co~ste=: ~lt~ t~e
proc:itel ~ :heorec:c~ :equ~emen~
ct the occupation. ~ qum~e~.
of app~v~ from :~e Deponent o~
Health. a copy of w~ ccr~e
:~on for ::ce~e ~d t~e llce~e fee
fled. ~e ~pa~e~ ~f ~c~:h
stx:e In wrl:m~ 1~ re~o~ for
zpp~v~ of ~e lppllca::3n aha send
a ~pY chereo£ m the Consumer
~.1~ Dep~r~ment &nd t~e
~ Co~m~ ~
c~t ~ compH~ with ~ ~pplic~ble ·
~up&Uon o~ ~n~uc~r. oper&tor.
&n~ ~e opel~lon ~nd ~ten~ce
~ct the public h~t~.
welf~e.
co~uc~or. ~d ~or esch ~e
lot ~ ~e ~hool s~ be
P~lor ~ ~sa~e ~h~l are
one I~ o~ ~1~7 ~ l~ be
ChM~ed.
I~ ~aU be U~a~ul ~cr ~y
to ~ve~e lhe offer~ of
semites u~e~ ~e adve~ea
~en~ ~ ~uiy literal. ~. 34-1-7.
Appll~n~ for {Ice,es ~er C~
a~er. ~ ~ave ~ e~u~ton eq~vs-
len~ ~ comple~on of ~e
(b) ~ op~ator sh~ have
~ app~n~lcesbip oI no~ less ~
one 2ear under ~e ~pe~lon oi
l~e~ opener or ~ctor. or
p~ ~ e~tton ~pp~ve~ by
the ~p~en: ol
a ~ce~e~ O~r f~ a perl~
no: leto ~n one ye~ ~d ah~l
~ l~e c~cates ~ed ~
thtq c~t~ qhilL ~ d~p~y~ ~
Uon for w~lc~ b~ h~ ob~
l~c~.
~. 3~1-10.
~e Co~vmer ~ ~p~ent
~ hereby ~ut~o~ea ~ l~ue llce~
ucder this Ch..peer. or ~o revoke or
swpena t-',e same. u~n
~ compe~e~ m~tefl~ ~
tl~ p~l ~t t~e ~ppllcsnt h no~
p~l~ed un,er the prov~lons
cer. or hu ~ol~ced ~y o( ~e
~es ~d re~&cio~ o~
Dep~en~ re~ ~ the o~rt~u
~ ~mte~nce o~ s ~---~e P~IoF
~ M~t~e S~l or tho pre~
~e~ therefcr, or to tho
of ~y c~uctor. ~t~c~or. opener.
Or ~ppren~lce or s~en~, or
viol~ ~ny o~ ~e I&ws bi the S~te
or City relac~g M the ~le or
Of alccAol~ beve~gs or
~ the t~Pllc~t for ~
the Co~er ~s Deponent .
qu~lilca::o~ o~ each o~lcer.
~a employee hav~ m~eri~.re-
sponsiblllCe~. ~ ~e s~e
H such ~e~o~ were tn~vlC~ ~p-
plicmncs. Xo llce~ shmll
to m Co~ormtlon uncer t~ Chad:er
or rene~e~ ~ c~e co~r2~e
dlrec~ or ~imC em~lo~
~ meec c~e :eq~e~e::i
Sec, 3~1-13.
Eve~ es~mbl~en~ ostenslbl~
~ open,aa ~ · ~e P~ior or
M~age ~h~l sh~l be open
spec~on ~ a-~y &u~or~ea
-~ncern~ T~:~ ~o licens~
o~ e~orc~ ~T of ~e pro~o~ of
tb~ C~r or other Or~a~c~ or
Re~o~ o~ ~e City
a~e ~!or or M~ge ~A~I
~c~lo~ ~ve been ~e
qu~ed ~y the app~le
reE~atlo~ of the CIW '~ De,it.
~ appro~a~ obC~e~ ~m
of ~e
autho~=~ CIW Represent[~
titus.
~ec. 34-1-14.
~e ~epar~en~ of He~th sh~l
tton.~ pro. tried, ~or by ~hlz Chapter
to he prlntect And m~de ~&ble
~e ~ce~ees ~der ~ Chapter.
~e~ ~nduc~or ~ ~ such
~a ~tlo~ In & p~ce readily
l~hmen~ fe~tc~, th~ Chapter.
~e or mmden~ u~e,. he ~
obt~d & ce~l~e of reg~tr~tion
1~ the ~pa~ment o~ He~i~h.
ce~cA~e ~11 be ~aild f~ one ~e~r.
~d ~ ~ renewe~ u~n obeying
~e app~al og ~he Dep~en~
~o apprent~e or s~en~ sh~
cei~e · ce~iflc~te of re~tton
~e ~p~men~ of Heslth ~le~ he
~ub~ p~f tht~ ho ~ r~eivin~
~f or f~m & llcensea ope~:or in
~ce~d M~e P~lor. ~e
~mpiy wi:h ~e ~qu~reme~ts of
Section sh~B ~e ~ for revoc~*
tton of ce~:~ of re~tr3~ion
Cbsp:er.
~o ~n o~t~ ·
· n nppren:ice or s~den~ who h~ :o~
tt~ the ~e eighteen ~e~rs.
I~ sh~ be ~ul for ~ pe~o~
to la,My h~ ~e ~ o~er to obtain
~n~E ~ ~ appren~ice or
lor.
Ho ~ppren~ce or s~uden~ sh~ prac-
tice m~a~e u~e~ ~ ~he presence
~d under lhe su~e~lon o~ ~
I~ s~ ~ u~a~ for ~ ~n
~ con~uc~ · ~ ~rlor or
s~e ~h~l o~ to provide · m~e
~t~ he ~ h~ve c~pl~d wi~
ce~d und~ ~ cha~er ~
sh~ ~ be ~en to an~
wl~out a p~pfl~ from A re~-
ter~ physic~ ~e ~ o~ hea~ 1~
~d s~-~ l~pa only vfll ~
~tt~.
(b) ~o ~on ~ho h~ an~ ~ble
a~p~ O~ & ~mm~CZble ~aze.
suc~ ~ a ~. ~harKe or f~ve~.
who ~ com~lai~q of ~ ~re
ma~ ~ atte~ by ~y ltce~ee
der ~ ch~pt~ or any pe~n
~q~ ~ the pr~Ce of
(c) ~e~g or atten~g ~ a
~ge p~lor of p~o~ o~ the oppoatto
sex ~ pro~t~ p~ded, ~Z
prov'-~ion shall --or si)PIT In ca,es in
which suc-h service or &t~endln~
u=der ~e su~on ol ~T pe~on
~e~ed to pr~tice medic~a ~ger
t~e L~chiq~ Me~lc~ ~t~o
(~ 338.18~01806)
(d) Eac~ ~ppt~ for ~ Appreno
~r~tion. or for en ~to~ or
e~o~s license under ~
or · renew~ ther~f, sh~l present
cerli2c~te from · re~er~ p~siclan.
muntc~ble ~e~.
nurse In acven~ce ~ 9m~bi~
less there ~ ~ r~tere~
n~e co~tlT ~ a~end~ce
lng ~e b~me~ ho~ of the ~aqe
p~lor.
(f) Adven~q ~t there ~
~r in ~endance ~ prohibti~ ~e~
there ~ ~ re~ls~r~ p~Tslc~ con-
sz~vly In at:end,ce ~ur~q the
b~lness ~ours o~ ~he ~s~qe ~arlor.
I~) Lice~s~s sh~l exe~l~ eve~
precau:~on for :2e ~etT ~
~.ey s2zll w~tc~ for e~l~
d~co~:~ue whatever fo~ of ~e~-
ice ~ bel~ llve~ upon l~e
ll~n~ ~uar:e~. u~eis espec~y
pror~ ~Y ~he dep~men~ ol be~
(i) ~e presses use~ ~cr
~e p~tor s~ ~ ~elt l!ghte~
ven~i~. ~ey ~ be kep~
'~nltm~ condl:lon. ~ere sha~ he
col~ w~ter d~ b~ ho~a.
cleaneA before t~e use ~ eac~
l~e~ I~ ~or ~e ~e ~ one
patron snsE be tho~g~ lau~er~
(k) U~o~ or g~en~s cove~g
the ~o ~1 ~ worn by co~uc~r.
~t~c:or. o~fa~r or ~ppren::ce
~all no~ reac~ below ~he el~w.
(i) ~e ~ of ~he h~ of ~o~
~ he~l~7 con~tion. ~d the
~ ~n~ ~orou~lT beige
(m) ~:e~ee s~all ~ r~t~cted tn
t~e exerc:~e of ~e~ llcc~e to
places ~e~ fo~h ~ ~e~ ce~c~e:
pl~ce of :e~ence ~
(n) Llctnsee~ s~ll t~ot~t~y t~.e
~ ~e ~vere~ when m ~e p~s-
ence o~ & ~ndvc~oF, oper&~ot or M-
s~c~r. ~y con~ wl~ A p~o~2
pr~ 0~. ope~ le~ed or
~on o~ ~y ~rov~lo~ o~ ~
It ~ be ~ m~de~esnor for ~
Chapter. including any rules or ze~u-
bt:on` promuL~ted by the Depm-
men~ o~-Health he--nde, or ~ ~.
Sec. 34-1-19.
A ~Mce ~lcer of ~e Cit7 or
to ~est wt~ou~ p~m any
Tlolat~q ~uT p~lOu o~ ~ Ch&p*
ter ~ hm prfle~e.
~e~ nec~s~ for ~e
Qf the public pete. health, ~e~
~d we~e of ~e p~le o~ the
of ~t~fC ~d ~ here~ ~Yen
~te e~
(JCC P. ~-27. J~W 8,
~ J~nu~ 29, 1975.
Pu~l~hed Feb~ 14. 197~.
J~ H.
CL~y
.T
6S5.0000 PE~, .M1TTZD ~ J~PPBOVAL USF,~
65.0100 Purp~M
.In the development ~nd c~ecstfion o( this Ordinance, it ~'~:~l~ed that
ther~ ar~ some uses which, because of ~heir unique charac~ris~ics, c=nnoc be
properly eJ-*,;fied in any particular distmict or diswic'.s without consideration,
in o-~_b c~e, o~ the impac: o~'th~~.v~on neighborin~ uses. Review of
dimer, sioual requirements, location, constrdction, 'development, and opera-
tion o£ each use is necemsar7 to insure compacib~i~T with the .m_--oumiinq
nei~borhood.
~e~'-on ~.0200
~v.r pe.~o- ow~?~ or l~v~n~j ~n Luteres: In ~.'te svb.'.ec: .=:oper.~r
sn sDpl:c~uon to '~e suc~ l~ua wr one or more Pe~__:'.-te~- wlt~U A~provU
,~-~.~_ prov~e~ ~or In ~ OrcU~ce tn the ~l~lq C~trlc~ ,-~ wl~c~
l~ ~r~'~d. -~uc~ aj)pLtc~lozl a~&tl be ~led wlt~ iZ~e Com---u~t:T ~nd
.U~o~om~c Develovment Dep~,'~ne~. ~ec~' ~_,~ ~.~00
U~n ~et~ ~ tppli~ion for ~ p~t~ed ~t~ ~pp~v~ ~e. ~e ~m-
m~tT ~ E~O~C ~velopm~: Dep~en: ~ c~nc~c: n~
pIc~ ~c~n~; hold ~ ~: ~ o~e pr~ ~ ~pp~-
~ ~velogme~ ~9~e~: ~e~l qive due co.ce oi ~ip:
~ ~ to :~a ~ oi ~ ~. ~o-.:~'~e-. ~
~ ~g o~ ~e~ ~en:e). Su~ no~ce ~ be ~e~ver~ ~o~-~y or by .
~e notice of app~n ~ ~o~ the r~p!en~ of ~e
o~ce ~er w~ :~o propcs~ ~ ~ ~ce~ Suc~ notre
~ ~ ~ ~a telephone ~ a c~e pekoe ex~g no:
5u~u~n: ~ ~e de~l~e :or r~oo=e :o :lc 2;o~ce of 2. p~Ecml:o~ A
p~ ~ ~ce ~th ~e s~ ~ :o~ ~ Sec:Ion 65.~
~'~ ~c ~velopme=: Dep~en: ~ ~Vo~e ~ ~e Notice of App~
Cn~W ~d E~no~c ~velopment ~p~e~L ~ debUG
~t~ by ~e Co~W ~ ~o~c DevelOpment ~O~=
~ ~e efiac~ ~c~ ~e ~t~ of ~e ~ ~e~ ~t :~ below·
~o ~o~~ ot Ap~ ~ 14 c~ ~ ~ ~e ~~
Deve,c~men Dep~en~ ~ ~e
d~on of -- Cc~u~ &nd ~no~ic .
S~n ~.~
~ ~ -- ~ CO~
65.~ ~ ~e P~ ~'-~P~ ~e ~ ~ ~ o~ ~
- ~
~e~ ~ mY ~ ~Y ~ con~lo~ ~ ~t~t~ u~n
3~ ~ ~on ~.~ a~ve. ~s CC~W ~ ~ono~c Develop-.
mane Dep~enc or ~o Bo~ ~Y r~e 3u~ e~de~ce ~ ~~ ~
lc d~~ c~ ~ P~f ~ ~e ~n~o~ ~P~ ~ ~on
or the Bo~ ~ ~ r~u~ f~ a ~ of one ~ r~m :~e ~ of
~d o~er of aen!~L ~cep~ on ~e ~ of =ew e~e~e cr pf~ of
~on ~.~ '
~o~ ~ ~ O~ce ~1 ~ve~C :~ ~O~2D~ e~t~ ~ or
~. ex~t~to~ or ACC of ~. w~c~ '~ ~ t2i 3p~rov~ of ~e
t~ deTe!cp=:en~ znd e'-~cution
upon ~e
Adult ~::~olc
Adul~ x(tT~l ~oT. lon P!c:~.-~
· ~ ~C~ ~quor for ~mp-
'~ or ~h
~ ~ b~t~ h~
~V4 ~y SUCh ~U~C ~ :~ere ~ ~e~y ~ e~nco ~o or ~oro
~vetopm~t ~e~ ,~-q g~ve ~ue ~o~e ~ Recet~ ~ ~7
f~ ~e ~c7 ~ E~no~tc ~vet~e~C ~p~en~ ~ ~q oi
~ ~=o~c Dare.preen: ~p~enc ~ ~p~ ~ :~e ~oU~ of
A ~P7 ~ ~e d~lon of ~e Co~7 ~ ~no~C
~n ~e, ~ ~ ~e~ by ~e Cnmm~ ~G ~m4~ ~velopmfnc
~p~ent to ~e ~ ~ ~m~ Ap~ ior ~e 3~ oi & ~Uc
a~ ~e ~ He~ held by ~e ~oL~ of ~n~ AppeaM '~ ~ ~
~ono~: ~veiopmen~ ~p~en~ ~ould ~t ~e e~ecc.
aec~g ~ ~e ~~ ~ ~o~ ~vetc~en~ ~p~onC ~ be
66.0300
~.0IC~
~C p~vl~ for ~ ~ secUo~
p~o ~ ~o ~r of ~e
~e ~C~g of ~ pe~ for ~T
for ~e p~c:~on of ~a puCt:c
Effect og D e~
~o epplic:~tion for a regulated u~e which ~ be~n d'en~ed whoR7 or"~ p~
~ be ~b~ for a pefi~ o~ one 7e~ L~m ~e ~te oZ ~d o~er oZ
.deni~, ~cept on ~e ~un~ o~ new ~dence or p~o~ o~ ch~g~
66.0400 R~ocnfion
In a~nT' ~ where a pemi~ for re'~ulated u~e h~.e not been obt~ned ~rit.~Ln
month~ zft~r the gra~tin~ thereof, ',he ~C ~haJl become null a. nd void.
66.0500
Recons:tucfion of Damaged Reguia~d Us~
Nothin~ ~ ~ O~ce ~1 p~vent '~e ~o~ctio~ rep~n~, or
~bugd]ng and ~nfinu~ ~ of ~y bu~:g or ~c~, the ~e of
m~ it mbj~t ~ ~e con~ls of thh S~fion 66,0000, whi~ h d~aged by
~, co~apse, ~pl~ion, ot Act of G~, p~d~ ~a: ~e ~pen~ oi tach
~o~c~on d~ not ~c~ ~ (60) 9e~ent of ~e ~d
~e bufld~i or s~cm~ at ~e ~e ~ch d~-ge ~ed. ~o~de~
¢ C (
"' ' T~4I~ W'AI-L STREET jOURXAL.' THURSDAY. JUNE ZO. 1977 :'. , ..,:. ---. ·
":i" · · -, '- :- ;omb~t' ,one
p: the C Z
· :~' '~ cOble~ ll~ -
· - . -.' ' · · ' od~t o~; ~-~ru~7 ~.~c
~' CITY OF BEAUMONT, TEXAS
TO:
Planning C~isston and City Council
FROM:
Planning Department
SUBJECT:
Regul)?°n of Adult Uses;.REVISED September 14, 1982
Iss{Jes and Analysis
(
At present, the Zoning Ordinance of the City of Beaumont regulates certain
adult uses by establishing a set of "special conditions" that must be met
before Such uses may be approved. By adult uses, the ordinance refers to
"adult bookstores," "adult motion picture theaters," and other adult uses
such as massage parlors or nude modeling or photography studios. The
definition of an adult use is tied to situations where minors, by virtue
of age, are excluded from the premises. This approach was used to elimi-
nate the need to make individual subjective jud.oe~nts and to take advan-
tage of Texas Statutes concerning the sale, distribution or display of
harmful material to minors. The special conditions which must be met
before an adult use can be pe~,itted are:
ia} An adult use shall not be located within five hundred (500)
feet of the district boundary line of any residential zonine
district.
An adult use shall not be established or expanded within
three hundred (200} feet of any other adult bookstore, adult
theater, bar, pool hall,' or liquor store.
(c)
An adult use shall not be established or expanded within one
thousand (1000) feet Of the property line of a church,
~ublic.park or~othe~ recreational facitit~'~h~fe K.~r.c.r~ c¢'~-~-
!ate."
Ur, fortunately, these special Conditions do not apply to eatino o, drlnLing.
places which offer live entertainrent that would nc~.ally be co'.sid~red as
an adult use. It is the position of the.planr, ir, g staff that eating or
drinkir, g ~laces which have entertainment suck as e~otic Car, cars, strippers,
9o-9o girls, and other similar activities from which minors are e~cluJed
by virtue of age under the,laws of Texas unless accompanied by a consenting
parent, guardian or spouse, should be considered ~nd classified as adult
uses. This ~ould necessitate amending the zoning ordinance.
Currently, all adult uses r~cognized in the zoning ordinanCe are allowe<
in the General Co..-Tr. ercial - Multiple Dwelling Districts (GC-~D) o~ W~i'{~ a
specific use permit. They are permitted in the C-M, LI. and HI Districts
as a use of right. If and only if all of the follo~'ing conditions are found
then the City Council is required to issue a specific use' permit for '
adult uses in a GC-MD Distr'ict:
Adult Uses
Issues and Analysis (cont'd)
That the specific use will be compatible with and not
injurious to the use and enjoyment of other property, nor
significantly diminish or impair property values within
vicinitY;
That the establishment of the specific use will not impede
the normal and orderly development and improvement of sur-
rounding vacant property;'
That adequate utilities, access roads, drainage and other
necessary supporting facilities have been or will be. provided;
The design, location and arrangement of all driveways and parking
~paces provides for the safe and convenient movement of vehicular
and pedestrian traffic without adversely affecting the general
public or adjacent developments;
s)
That adequate nuisance prevention measures have been or will be
taken to prevent or control offensive odor, fumes, dust, noise
and vibration;
6)
That directional lighting will be provided so as not to disturb
or adversely affect neighboring properties;
7)
That there are sufficient landscaping and screening to insure
ha~ony and compatibility with adjacent property; and
That the proposed use is in accordance with the con;rehensive
plan.
From a planning perspective, the key conditions to the analysis of a
reauest for a specific use permit are conditions F! and ~2. As a general
rule, uses which are pern, itted in a zoning district only with a specific
use ~m, it hav~ unusual nuisance characteristics ~hich often are inco..,~atible
or injurious to the uses that are permitted as a right in the sa.me zoning
district.' If unregulated, these incompatible uses ~,ay significantly diminish
or impair area property values and impede the nom. al and orderly deveiopnent
of surrounding areas.
The reQuire~nt that adult uses must qualify for a specific uSe. pea, it in
a GC-M~ District is Justified on the basis of local analysi~ an0 ~eference
to studies on the subject prepared by the City Development D~t. of Kansas City
Missouri, the Planning Department of the City of Amarillo, the City of
Detroit, and the Planning Advisory Service of the ;~merican Planni.ng-.Association.
The City of Oetroit adopted adult use regulations in 1972 as part of an
"Anti-Skid Row Ordinance" that prohibited locating adult uses within 500-
feet of a residential area or within )O00 feet of an)' t~o other "regulated"
uses. The term "regulated uses" applied to IO different kinds of establish-
Ad'u It Uses
Page 3
Issues and Analysis (cont'd)
ments including adult theaters, adult bookstores, cabarets, bars, taxi
dance halls and hotels. Detroit subsequently amended its ordinance as a
result of a District Court ruling by prohibiting the location of adult
uses within 500-feet..of a residential zoning district instead of any resi-
derrtial area.
Adutt entertainment establishments were added to the "Anti-Skid Row
Ordinance" by the City of Detroit because of evidence of the adverse socio-
economic and blighting impact that such uses have.
"That evidence consisted of reports and affidavits from
sociologists and urban planning experts, as well as some
laymen, on the cycle of decay that had been started in l-
areas of other cities, and that could be expected in Detroit,
from the influx and concentration of such establishments."1
In Texas~ the Planning Department of the City of ~,,arillo has prepared and
published a study entitled "A Report on Zoning and Other Methods of Regula-
ting Adult Entertainment Uses in A~narillo." The essence of the r~port was
/o
· that adult entertainment uses have ~mpacts upon surrounding land uses that
are distinguished from other businesses permitted in the same zoning dis-
tricts.. The full'owing are two of the causal factors identified in their
a~alysis of adult entertainment uses.
The A~,,arillo Police Department's statistical survey of
street crime in the vicinity of adult-only business
indicates that crime rates are considerably abcve
the City'_s average in~nediately surroun~ing.ihe adult-
only businesses analyzed.
Concentrations of these adult-only activities have detri-
mental effects upon surrounding residential and co,-:=,er-
· cial activities. These effects are caused by (a) the
noise, lighting and traffic generated by the pedestrian
and vehicular traffic frer~uenting these businesses whose
prir,,ary )~aurs of operation are frcxT, late evening to
late night, {b) the increased opportunity for "street
crimes" in areas with high pedestrian traffic, and (c)
the tendency to avoid areas where adult businesses
{especially pornographic} are established. This
avoidance and other factors can lead to the deteriora-
tion of surrounding COnTnercial and residential activities.
The analysis of the adverse impact of adult entertainment uses provided
for the City of A~,arillo is consistent with local experiences here in
~eaumont. The local consequences of the concentration of adult entertain~nt
uses was clearly illustrated in the "Co~n~rcial Revitalization Plan for the
Charlton-Pollard Neighborhood" which ~'as prepared by the Planning Departr,,ent
in ~ay of 1981. This plan ~'as prepared as a "demonstration project" under
a grant frown the Economic Developr.~nt Administration cad.was deve]oped ~to ._
2ssues and Analysis (cont'd)
be used as a model or prototype for the revitalization of other areas that
have experienced co~vnercial deterioration, neglect and disinvestment. The
major points of the ~-lan which have bearing on this report are as follows:
- 'The concentration of bars, lounges, and package stores on Irving
Street repret~n, ts_.a..semi-developed adult entertainment zone.
Adult entertainment uses tend to have a "skid-row effect" on ad-
Joining properties and, when concentrated, often result in
deteriorating residential and con~nercial property values, higher
crime rates and depressed neighborhood living conditions.
- Between 1970 and 1980 the total number of businesses located on
Irving declined fro~ 23 to 19. At the sa~e time the number of
package stores and lounges increased from 6 to 9. lteighborhood
con~nercial uses such as washaterias, restaurants, and grocery
stores left the area and were partially replaced by lounges, body
shots and car washes.
The character of co~rnercial development along Irving has changed
in. recent years fro'~ neighborhood cc~,~rcial to high~'ay or nuisance
conTnercial with a high degree of inc~l, patibility.
The high incidence of lounges and package stores on Irving actually
discourages the retention or new develo~nt of neighborhood cow-
mercial uses and (~ not conducive to,oeighborhood co..~r~6rcial
revitalization."3
The plan described in detail the downhill economic decline in this neighbor-
hood which was caused by the presence and concentration.of adult entertain-
rnent uses. )(eighborhood convenience CO~Tnercial establish,.-ents wh(ch were
needed to meet the' market demands of the residents in the area were driven
a.ay by the growing presence of these inco~patibi~ uses. ~any residents
in the area who were for~r shopGers testified that they and their children
ware threatened and verballs abused by the custo~rs of the various adult
entertain~e_nt uses and they feared for their safety and well-being. This
ex;erience is consistent with the evidence usee by the City of Detroit
in deciding to disperse and r~gulate the locational aspects of adult enter-
taln~nt uses. This local experience also was t~e basis for the recom-
~ndation by the Planning Department that
"...the adult nuisance uses in the area which are not
compatible with either residential or convenience ccr~..~er-
cial develop,~ent and which diminish the chances for
local economic revitalization should,~e a~,ortized out and
removed at the earliest opportunity.'~
6The Police D~artr,~nt of the City of Beaumont has concluded that adult uses
such as bars, lounges or taverns, and especially those featuring such sex-
ually-oriented activities as e~otic dancers and go-go girls, are the frequent
scene of illegal sexual activities such as prostitution and the sale and
use of narcotics. Criminal activity in an area-~th adult, uses is above
Adult Uses
Issues and AnalySis (cont'd)
average and is often attributable to the need of drug users to obtain money
to finance the purchase of narcotics. Crimes against persons, such as
mugging, are also above average in such areas,
The bunching or grouping of adult uses' has an even greater adverse impact.
The character of the area attracts a distinct class of people and a crimi-
nal element. It results in a rein-forcing multiplier effect on criminal
b~.havior and leads to a higher incidenc~--o~-c-rime.. ..
The preservation of residential neighborhoods and business districts
against the deteriorating influence of crime and blight ranks among the
highest functions that city dwellers expect its planners, commissioners
and elected officials to perform. Current zoning regulations in Beaumont
are not adequate .to control the adverse'.impact of sexually-oriented adult
uses on surrpunding residential areas or to prevent commercial deterioration
and blight. It
In deciding what additional minimuFn regulations of adult uses are 'needed to
protect the residents of the City of Beaumont, it is significant to note the
recent efforts of the City of Galveston to regulate adult uses. The City of
Galveston permits adult motion picture theaters and adult book stores in
cor~s~rcial and-industrial zoning districts but only with a specific use
permit. In addition, these adult uses are not permitted within 500 feet
of any residential zoning district or within ]000 feet of the property line
of a church, school, public park or recreational facility where minors con-
gregate. The legal validity of the Galveston Ordinance which has some.
similarities with the Beaumont Zoning Ordinance was upheld in District Court.
However, upon subsequent appeal, the decision of the District Court ~'as
reversed. It was the opinion of the Fifth Circuit of the United States Court
of Appeals that the Galveston Ordinance went too far in that~ under the
guise of regulation, it banned theaters from, sho~'ing mo{ion pictures for
adult audiences.5 The decision of the Fifth Circuit Court is a clear
~'arning to local governments that they cannot adopt regulations which f, ave
the affect of bannino adult uses.
Su-~,ation and Recom:.ndations
There is clear and convincing docu..~ented evidence th, at adult entertain.--~nt
uses, because of their very nature, have serious objectionable operational
characteristics, particularly when several of them, are concentrated,
that produce or result in a deleterious effect upon adjacent areas and
the surroundin9 neighborhood. Special regulation of these uses is necessary
to ensure that these adverse affects are minir..ized and controlled so as
not to contribute to the blighting or downgrading of adjacent property and
the surrounding neighborhood.
At present, Section 30-33.B.2) of the Beaumont Zoning Ordinance establishes
special conditions for adult bookstores, adult motion picture theaters and
other adult uses such as massage parlors, nude modeling or photography
studios. The planning staff recor~J~ends that t~ese special conditions shcul~
Ad~l t Uses
Sun,nation and Reconmendatlons (cont'd)
also be applied to eating or drinking places which offer live entertainment
from which minors are excluded under the laws of Texas unless accompanied
by a consenting parent, guardian or spouse.
In ~ddition, the Planning staff recommends that a specific use permit should
be required for all adult entertainment us~s~in the GC-HD District. In
particular, Section 30-33.B.2)'wbuld be amended by'adding the following
condition:
d)
Because adult uses generally have unusual nuisance character-
istics which can be incompatible and injurious to other com-
mercial or residential uses and which may significantly
diminish or impair area property values and impede the non, al
and orderly development of surrounding areas, a specific use
Permit shall be required when the proposed use is to be
located in a GC-MD, General Con~nercial - Multiple Family
Dwelling district.
The planning staff would also recommend that condition "c)" in Section
30-33.B.2 which prohibits an adult use being established or expanded
within 1000 feet of the property line of a church, school, public park or
other recreational facility where minors congregate be reduced to 750. The
reduction is recormended Jfter consultation with the Le§al Department
concerning the impact of the decision of the Fifth Circuit Appeal Court on
the Galveston Zoning Ordinance. The planning staff has prepared a series
of ma~s which will be presented at'the public hearing which demonstrate
that with this proposed reduction in separation between uses that the r~
are numerous ccrr~.,ercially viable locations for adult entertainment pses.
These text a.,~endments do not represent an attempt to ban adult entertainment
uses fr~n the City of Bea~,ont.
FOOTNOTES
lJ'o:~-.' ~. /,~.zr'2c~. ~'.C~.{ .~.ec:rcs, Inc., 96 S.Ct. 2440 (1976).
2"A Report on Zoning and Other Methods of Regulating Adult Entertain-
merit in A~..arillo," Planning Department - City of AT, arillo, Texas (1977},
pp. 14-I5.
3"Commercial Revitalization Plan for the Charlton-Pollard Neighborhood,'
Planning Departmen¢ - City of Beaumont, Texas (1981).
4"Memo on Neighborhood Co..-rnercial Revitalization Plan for the Charlton-
Pollard Neighborhood," Planning Department - City of Beaumont {june 23, 19S2).
5Bc~{~".4~.'-~.es u. C{t~ o£ CcZue~:on, 682 F.2d 1203 (1982).
CITY CO.W21ISSION - ~AR
MEETING - NINWTE$ - MARCH
~ mO~O 0
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15, .~78 - Pa: e 201
~ 0
i~.
0
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l~-
:mO
0 m
0 0
0 ~
0
0
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0
Z
0
eiCITY OF BEAUMONT' TEXAS G
TO:
FROH:
SUBJECT:
Planning Commission and City Council
Planning Department
Regula.t. ion of Adult Use$;. REVISED September 14, 1982
Issues and Aflalysis
At present, the Zoning Ordinance of the City of Beaumont regulates certain
adult uses by establishing a set of "special conditions" that must be met
befoKe such uses may be approved. By adult uses, the ordinance refers to
"adult bookstores," "adult motion picture theaters," and other adult uses
such as 'massage parlors Or nude modeling or photography studios. The
definition of an adult use is tied'to situations where minors, by virtue
Qf age, are excluded from the premises. This approach was used to elimi-
nate the need to make individual subjective judge~nts and to take advan-
tage · of Texas Statutes concerning the sale, distribution or display of
r, armful material to minors. The special conditions which must be met
before an aUult use can be permitted are:
ia) An adult use shall not be located within five hundred {500)
feet of the district boundary' line of any residential zoning
district.
(b)
An adult use shall not be established or expanded within
three hundred (.~00) feet of any other adult bookstore, adult
theater, bar, pool hall, or liquor store.
(c)
An adult use shall not-be established or expanded within one
thousand (1000) feet of the property line of a church,
~ublic park or~othe~ recrtatio~al facility'~.~,~r'e r..ir, c. rS cc~_~'~-
·.ete ."
Ur, fcrtur, etely, these special conditions do not ap~ly to eatir..o o~ drln;.ino
places wP, ich offer live entertainrent t~,at ~'ould nc~.ally be co'isi~-:red as
an adult use. It is the position of the planning staff that eatinc, or
drir~kir,.e places which have entertainr.~nt suc~. as e~otic Car, cers, strippers,
go-mo ~irlS end other similar activities from w~,ich minors ~re e~clu~.d
by virtue of age under the laws of Texas unless ~ccompanied by a consentin,o
~ar~nt, c. aa~dian or spouse, should be considered and classified as a~ult
uses. This ~ould necessitate amending the zoninc, ordinance,
C;,rr. ently, all adult uses recognized in the zoning Ordinance are allowed
in the Ger. eral Co.,~ercial - Multiple Dwelling Districts (GC-MD) only with a
specific use permit. They are permitted in the C-H,, LI. and HI Districts
as a use of right. If and only if' all of the follc~'in,o conditions are found
then the City Council is reouired to issue a s~ecific use permit for
adult uses in a GC-MD Distr~ct:
Issues and Analysis (cont'd)
That the specific use will be compatible with and not
injurious to the use and enjoyment of other property, nor
significantly diminish or imPair property values within
vicini"ty;
That the establishment ~f-~'-specific use will not impede
the normal and orderly development and improvement of sur-
rounding vacant property;
3)
That adequate utilities, access roads, drainage and other
necessary supporting facilities have been or will be. provided;
4)
The design, location and arrangement of all driveways and parking
~paces provides for the safe and convenient movement of vehicular
and pedestrian traffic without adversely affecting the general
public or adjacent developments;
That adequate nuisance prevention measures have been or will be
taken to prevent or control offensive odor, fumes, dust, noise
and vibration;
6)
That directional lighting will be provided so as not to disturb
or adversely affect neighboring properties;
7)
That there are sufficient landscaping and screening to insure
harmony and compatibility with adjacent property; and
That the proposed use is in accordance with the comGrehensive
plan.
From a'planning perspective, the key conditions to the analysis of a
reouest'for a specific use permit are conditions ~1 and ~2. As a general
rule, uses which are perK, itted in a zoning district only with a specific
use pen, it have unusual nuisance characteristics which often are inco~pati
or injurious to the uses that are permitted as a right in the sa.~e zoning
district. If unregulated, these incompatible uses may significantly diminish
or impair area property values and impede the noT, al and erderly deveiopnant
of surrour, ding areas.
The require.?ent that adult uses must qualify for a specific use per~,.it in
a GC-MD District is Justified on the basis of local analysis~ an~ ~eference
to studies on the subject prepared by the City Development D~_pt. of Kansas City
Missouri, the Planning Department of the City of A~,arillo, the City of
Detroit, and the Planning Adv(sory Service of t?.e A.~erican Planning Associatior.
The City of Detroit adopted adult use regulations in 1972 as part of an
"Anti-Skid ~ow Ordinance" that prohibited locatinc adult uses within 500-
feet'of a residential area or within )000 feet cf any two other "regulated"
uses. The term "regulated uses" applied to 10 different kinds of establish-
Page
%ssues and Analysis (cont'd)
ments including adult theaters, adult bookstores, cabarets, bars, taxi
dance halls and hotels. Detroit subsequently amended its ordinance as a
result of a District CoUrt ruling by prohibiting the location of adult
uses within 500-feet of a resLde.ntial zoning district instead of any resi-
dential area.
Adult entertainment establishments were added to the "Anti-Skid Row
Ordinance" by the City of Detroit because of evidence of the adverse socio-
economic and blighting impact that such uses have.
"That evidence consisted of reports and affidavits from
sociologists and urban planning experts, as well as some
laymen, on the cycle of decay that had been started in
areas of' other cities, and that could be expected in Detroit,
from the influx and concentration of such establishments."1
In Texas~ the Planning .Department of the City of ~,,arillo has prepared and
published a study entitled "A Report on Zoning and Other Methods of Regula-
ting Adult Entertainment Uses in Amarillo." The essence of the report was
that adult entertainment uses have'impacts upon surrounding land uses that
are distinguished from other businesses permitted in the same zoning dis-
tricts. The loll'owing are two of the causal factors identified in.their
analysis of adult entertainment uses.
The Azr,,arillo Police Department's statistical survey of
street crime in the vicinity of adult-only business
indicates that crime rates are considerably abcve
the City's average in~nediately surrounding .the adult-
only bosi~nesses analyzed.
Concentra'tions of these adult-only activities P, ave detri-
mental effects upon surrounding residential and co,-~.,er-
cial activities. These effects are caused by {a) the
noise, lighting and traffic generated by the pedestrian
and vehicular traffic freguentin9 these businesses whose
'prir, ary I~aurs .of operation are frCXT, late evening to
late night, (b) the increased o~portunity for "street
crimes" in areas with high pedestrian traffic, and (c)
the tendency to avoid areas where adult businesses
(especially pornographic) are established. This
avoidance and other factors can lead to the deteriora-
tion of surrounding COnTr,,ercial and residential activities.
The analysis of the adverse impact of adult entertainment uses provided
for the City of An, arillo is consistent with local experiences here in
Ee~umont. The local consequences of the concentration of adult entertainment
uses was clearly illustrated in the "Co~n.ercial Revitalization Plan for the
C)',arlton-Pollard Neighborhood" which ~as prepared by the Planning Departr,,ent
in ~,ay of 1981. This plan was prepared as a "demonstration project" under
a grant frown the Economic Developr. ent Adrninistratior, and was ~te-veloped to
Issues and Analysts (cont'd)
be used as a model or prototype for the revitalization of other areas that
have experienced commercial deterioration, neglect and disinvestment. The
major points of. the ~.lan which have bearing on this report are as follows:
.,,
- 'The concentration of bars, lounges, and packag~.~,ores on Irving
' Street represents a semi-developed adult entertainment zone.
'~: Adult entertainment uses tend to have a "skid-row effect" on ad-
~. joining properties and, when concentrated, often result in
deteriorating residential and co~nercial property values, higher
crime rates and depressed neighborhood living conditions.
Between 1970 and 1980 the total number of businesses located on
Irving declined from 23 to 19. At the same time the number of
package stores and lounges increased from 6 to 9. Neighborhood
con~ercial uses such as washaterias, restaurants, and grocery
stores left the area and were partially replaced by lounges, body
shops and car washes.
The character of commercial development along Irving has changed
in recent years fro~ neighborhood coc~r,~rcial to highway or nuisance
commercial with a high degree of incc~,patibility.
The high incidence of lounges and package stores on Irving actually
discourages the retention or new develop~nt of neighborhood COW-
mercial uses and (~ not conducive to,oei~hborhood co..-rnercial
revitalization."3
The plan described in detail the downhill econo,-.,ic decline in this neighbor-
hood which was caused by the presence and concentration .of adult er, terrain-
rnent uses. )(eighborhood convenience commercial establish,.-ents which ~-ere
needed to meet the r,,arket der, ands of the residents in the area were driven
a,ay by the 9row'lng presence of these inco,~patible uses. )~,ar, y residents
in the area who were fors~e.r shoppers testified ti, at they and their children
were threatened and verbally abused by the custo.~ers of the various adult
er, tertainment uses and they feared for their s&i'ety and well-being. This
ex~erier, ce is consistent ~'ith the evidence used ~y the City of Detroit
in deciding to disperse and regulate the locaticr, al aspects of adult enter-
taln.-.~r,t uses. lhis local experience also ~as t~.e basis for the recor.,-
mendation by the Planning Departr. 4nt that
"...the adult nuisance uses in the area which are not
compatible with either residential or convenience com..~er-
cial develop,~ent and which diminish the chances for
local economic revitaltzat'ion' ~Hould ~e a~,ortized out and
removed at the earliest opportunity.''~
~The Police De~artr. ent of the City of Beaumont has concluded that adult uses
such as bars, lounges or taverns, and especially those featuring such sex-
ually-oriented activities as exotic dancers and go-go girls, are the frequent
scene of illegal sexual activities such as prostitution and the sale and
use of narcotics. Criminal activity in an a~a with adult uses is ~bove
Issues and Analy~ts (cont'd)
average and is often attributable to the need of drug users to obtain money
to finance the purchase of narcotics. Crimes against persons, such as
mugging, are also above average in such areas.
The bunching or grouping of adult uses has an even greater adverse impact.
The character o'f the area attracts a distinct class of people and a crimi-
nal element. It results in a reinforcing multiplier-~f-fect on criminal
be~iavior and leads to a higher incidence of crime.
The preservation of residential neighborhoods and business districts
against the deteriorating influence of crime and blight ranks among the
highest functions that city dwellers expect its planners, con, missioners
and elected officials to perform. Current zoning regulations in Beaumont
are not adequate .to control the adverse'.dmpact of sexually-oriented adult
uses on surrpunding residential areas or to prevent co,,q~ercial deterioration
and blight. ~t
In deciding what additional mini~J~n regulations of adult uses are needed to
protect the residents of the City of Beaumont, it is significant to note the
recent efforts of the City of Galveston to regulate adult uses. The City of
Galveston permits adult motion picture theaters and adult book stores in
cc~,,-~e, rcial and-industrial zoning districts but only with a specific use
permit. In addition, these adult uses are not pe,~itted within 500 feet
of any .residential zoning district or within lO00 feet of the property line
of a church, school, public park or recreational facility where minors con-
gregate. The legal validity of the Galveston Ordir, ance which P, as some.
similarities'with the Beaumont Zoning Ordinance was upheld in District Court.
However, upon subsequent appeal, the decision of the District Court was
reversed. ]t was the opinion of the Fifth Circuit of the United States Court
of Appeals that the Galveston Ordinance went too far in that, under the
guise of regulation, it banned theaters from shc','ing mo{ion pictures for
adult audiences.5 The decisilon of the Fifth Circuit Court is a clear
warnino to local governments that they cannot adb2t regulations which f. ave
the affect of bannino adult uses.
Su-s~..ation and Reco-r.=.ndations
There is clear and convincing docu..'~ented evidence th. at adult entertain~nt
uses, because of their very nature, have serious o.~jectior, able operational
characteristics, particularly ~'hen several of the~. are concentrated,
that produce or result in a deleterious effect upon adjacent areas and
the surrounding neighborhood. Special regulation of these uses is necessary
to ensure that these adverse affects are minir..ized and controlled so as
not to contribute to the blighting .or down~radin.c of adjacent property and
the surrounding neighborhood.
At present, Section 30-33.B.2) of the Beaumont Zoning Ordinance establishes
special conditions for adult bookstores, adult ~otion picture theaters and
other adult uses such as massage parlors, nude ~odeling or photography
studios. The planning staff rec(~nds that these special conditions shculd
Ad~l t Uses
Page 6
Sun,nation and Recomnendations (cont'd)
also be applied to eating or drinking places which offer live entertainment
from which minors are excluded under the laws of Texas unless accompanied
by n consenting parent, gunrdian or spouse.
In &dditton, the Planning staff recommends that a specific use permit should
be re~quired for all adult entertainment uses in the GC-MD District. In
partitular, Section 30-33.B.2) would be amended by adding the following
condition:
d)
Because adult uses generally have unusual nuisance Character-
istics which can be incompatible and injurious tO other com-
mercial or residential uses and which may significantly
diminish or impair area property values and impede the non=al
and orderly development of surrounding areas, a specific use
Permit shall be required when the proposed use is to be
located 'in a GC-MD, General Co~rnercial - Multiple Family
Dwelling district.
The planning staff would also racom=end that condition "c)" in Section
30-33.B.2 which prohibits an adult use being established or expanded
within 1000 feet of the property line of a church, school, public park or
other recreational facility where minors congregate be reduced to 750. The
reduction is recorrnended :after consultation with the Legal DeGartr..ent
concerning the impact of the decision of the Fifth Circuit Appeal COUrt on
the Galveston Zoning Ordinance. The planning staff has prepared a series
of rr.a~s which will be presented at the public hearing w),ich der.,:nstrate
that with this proposed reduction in separation between uses that there
are numerous cms~.,ercially viable locations for adult entertainment uses.
These text a..~endments do not represent an attempt to ban adult entertainment
uses from the City of Bea~,ont.
FOOTNOTES
2"A Report on Zoning and Other IHethods of Regulating Adult Entertain-
~ent in Ax, arillo," Planning Department - City of A=arillo, lexas (1977),
Pp. 14-15.
3"Corr~ercial Revitalization Plan for the Ch, arlton-Pollard Neighborhood."
Planning Departrr~nt - City of Beaumont, Texas (1981). --"
4"btemo on Neiohborhood Co..-rnercial Revitalization Plan for the C)',arlton-
Pollard NeighborhoOd," Planning Department - City of Beaumont (june 23, lg$2).
5$cs{o.r~.~"~ee u. C~t~ of O~Z~e~:om, 682 F.2d 1203 (1982).
CITY CO.'~MISS ON - REGbLA. R
MEETING - MIN~JTES
~ m~O 0
~0 ~0
~ ~ O0
-MARCIi 15~ .~/8 - Pace 201
HOUSTON CITY COUNCIL
COMF. ITTEE ON THE.PROPOSED REGULATION OF
SEXU ~ALLY (7R~ENTEO 'BUSINESSES
LEGISLATIVE REPORT ON AN ORDINANCE AMENDING SECTION 28-73
OF T~E CODE OF ORDINA-.NCES OF THE CITY OF HOUSTON, TEY~S;
~ROViDING FOR T.qE REGULATION OF SEXUALLY ORIENTED COMMERCIAL
ENTERPRISES, ADULT BOOKSTORES, ADULT MOVIE THEATRES A/~'D
MASSAGE ESTABLISHMENTS; AND MAKING VARIOUS PROVISIONS
AND FINDINGS RELATING TO THE SUBJECT
COMMITTEE ON THE PROPOSED REGULATION OF
SEXUALLY ORIENTED BUSINESSES
LEGISLATIVE'REPORT
INTRODUCTION-
. This Legislative Report has been prepar~d..by the.. Committee
o~ the Proposed Regulation of Sexually Oriented Buslnesse~ as a
summary of the Committee's work in preparing the draft ordinance
which has been submitted to the Houston City Council for consid-
eration. This Report briefly sketches some of the most signifi-
cant aspects of the history 'of the Committee, summarizes prior
effoz-ts at the regulation of sexn/ally oriented businesses both
in Houston and elsewhere, recapitulates the p~incipal themes
heard in the public testimony taken by the Committee, and offers
a brief section-by-section analysis of the proposed ordinance.
This Report has not been drafted as a legal treatise on the
regulation of sexually oriented b~sinesses. Certainly consider-
able care was taken by the C6u~ittee to consult with the Legal
Department at every step of the legislative process. Representa-
tives of the Legal Department actually drafted the language of'
the ordinance pursuant to the directions of, and in consultation
with, the Committee. However, the various legal issues raised
-during the Committee's deliberations are dealt with here from the
layman's, not the lawyer's perspective, although it is the
lawyer's perspective that undergirds' the ordinance. The purpose
"~.%of this Report is to explain to members of Council, and to the
general public, what the Comm/ttee has recommended, and why, in
the. plainest possible language. For the same reason, this
Report is not filled with footnotes; although all of the informa-
tion is drawn from the materials and transcripts compiled by the
Committee, and available as a matter of public record.
· ORIGINS AND ESTABLISHMENT OF THE COMMITTEE.
On September 27, 1982, Mayor Kathryn J. Whitmire of the City
of ~ouston announced the formation of a special committee of
Council Members for the purpose of determining the need for and
appropriate means of regulating sexually oriented businesses in
~ouston. This Council Committee on the Proposed Regulation of
Sexually Oriented Businesses was composed of Council Members Dale
M. Gorczynski, who represents District H, Council Member George
Greantas, who represents District C, and Council Member Christin,
~artunq, who represents District G. Mayor Whitmire appointed
Council Member Greanias to sea-ye as chair of the Committee.
The Committee was formed by the Mayor in response to gro~ing
com.munity concerns about the proliferation of sexually oriented
.' ~ Sexually Oriente~usi~e
~age 2
sses
businesses :In Houston. .This concern had been summarized
memorandum from Council Member Grean~as to the ~ayor
'September 20, 1982:
"Given its healthy economic climate and a legal
environment that is,. despite our identif~cation with
the Bible Belt, laissez faire on most sexual matters,
Houston has lon~' been a~ a~tractive environment for
sexually oriented businesses ....
"Since Houston is not zoned, these sexually
oriented businesses are located anywhere and every-
where, oftentimes near. residential areas; or near
schools,' churches, or public parks. Their locations
are frequently marked by garish or'enticing signage.
The effect on the ability of neighborhoods an~ commer-
cial areas to retain their identity after .the opening
of such businesses in the area has been .extremely
adverse. Moreover, the establishment of one such
business in an area has often led to the opening of
another, in a rather~'~er~e~e example of synergy.
Finally, there is a growing'body of evidence to ~uggest
that there are substantial links between at least some
of these businesses and various forms of organized
crime. . . . ·
from Council
Member Greanias made clear, that
not one of morality, or of
of any .individual, but of
the rights and privileges of
The memorandum
in his mind at least the issue was
,.,.~ passing judqment on the lifestyle
reasonable land use controls versus
the individual:
"The importance of the city's ability to deal
meaningfully with the issue of sexually oriented
bUsinesses should not be underestimated. To some it
may seem a parochial question, relevant only to those
who 1/ye in areas where sexually oriented businesses
have located; t° others it may appear just one more
item on the agenda of those who are convinced that the
city is in the terminal throes of sexual degradation on
every front.
"But the problem' imposed- by these sexually
oriented businesses is much broader in its implica-
tions, and runs directly to the heart of our present
policies on land use. Does our d,cision not to impose
zoning carry with it the requirement that we not seek
to moderate the .influence of sexually oriented busi,
nesses on our neighborhoods, whatever the consequences
for the stability and quality of those neighborhoods?
Sexu&~y
Page 3
Does our decision not to impose zoning tie our hands in
dealing with the collateral criminal activity that
apparently attaches to some of these operations?"
At the same time, the initial memorandum from Council Me~ber
Greanias to .Mayor Whit. mire underscored a problem for which the
Committee was to show great concern during the course of its
deliberations:
"There is also another, equally important
guestion: Does' our desire to protect the freedom and
privacy of the individual, and to permit that indi-
vidual to pursue his or. her life without inhibition,
mean that we are proscribed from taking any actions
that while not significantly infringing on those rights
nevertheless sets a standard for the comm6nity as a
whole?"
It was these questions that formed the heart of the
Committee's inquiry during~ ~.ts..one year of existence. The
Committee believes that %hesW 'questions have been successfully
addressed in the proposed ordinance that has been presented to
Council for its consideration.
OPERATION OF THE CO~34ITTEE
Methodology. The Committee conducted its work in several
phases. The first phase, which was carried out in November .and.
December.of 1982, involved a series f u~s in several
parts of the city, as well as at City qqall. There were ~_hree
regional hearings and one hearing in City Council Chambers. The
first hearing was held at Spring Woods Senior High School on
November 8, 1982. The .second hearing was held at Berean Baptist
Church on November 22, 1982. The third hearing was held at
Bering Methodist Church on December 5, 1982. The fourth and
final session .in this first series of hearings was held in City
Council Cha_-%bers on December 15, 1982. (During the course of
these .hearings, several comments were made about choosing
churches as the sites for some of the hearings. The Committee
chose -these locations, not because of their religious.
significance, but because they had a history of being used for
community affairs, their locations were well known to the general
public, and access to each such site was convenient from various
places around the city.)
After the first set of hearings had been completed, the
Committee went into executive sessions for a period of approxi-
mately three months, r m ate er of 1982 until the early
part of April 1983. During that time, the Committee met with
representatives of the Legal Department to review the testimony
Sexually Or. zent usine
Page 4'
gathered in the initial hearth%s, as well as to discu.~s the '
results of staff research on the subject. Among those partic-
ipating in' this work were Messrs. John 'Whittington, Robert
Collihs, Charles Williams, and Adam Silverman from the Legal
Department of the City' of Rouston, Kent Speer, John ~lsenhans and
Michael Mc£achern from the office of Council Member GeOrge
Greantas ,- Fred Harper from the office of Council Member Christin
Ra~tung, and Nancy Br~me from the office of Council Member Dale
GOrczynski. Francis J. Coleman, Jr., City Attorney for the City
of Houston, also participated in these conversations from time to
time.
On May 6~ 1983, the Committee published the results of its
efforts: a .draft sO~ a proposed ordinance regulating sexually
oriented buslnesse n the City of ~ouston. At the time that the
Committee published its_draft mrdinance, further h~arin~s were
announced at which the C~e would--sol[~it~tes{im~Ky on the
ordinance as proposed. These hearings -~ originally planned to
- wet= :.-held ~.n Wednesday, May 15, 1983,
be three in number 19~3, a~d: Th6rsday, May 24, 1983 in City
WednesdaY, May 22, ,
Council Chambers. A fourth hearing, not originally Planned, was
held on Thursday, June 16, 1983.
Based updn these further public hearings, the Committee then
went back into executive ' n with its legal counsel and other
staff to ma~e f~t~r refinements in--th~ ~The changes
made pursuant ~o--th~-pubiic comments are noted in the commentary
on the specific ordinance provisions themselves.
An additional word is perhaps warranted on the decision of
the Co~mittee generally~o-6~, to meet with individuals and groups
apart from the public scans. It was determined early on that
an ordinance such as'that being considered by the Committee, with
its potential for controversy, should not be subject to private
bargaining between individuals or businesses and members of the
Committee behind closed doors. It was felt by all members of the
Committee that it would be far - more preferable to gather all
testimony and evidence in a public forum, and. then reflectively.
to consider the information without conferral with private
parties. At the same time, the Committee felt that its executive
deliberations were justified in encouraging the free flow of
'discussion of ideas and. sensitive concepts, knowing that the
entire work product would be subject to the public comment,.
review and debate inherent in the Committee's proced~r~._~nd the
processes of Council.
~/ The Committee also felt it imperative not to become subject
demands for quick action at the price of working with deliber-
ate speed towards its goals. It is for this reason that the'
original date scheduled for submission to Council of a draft
, _ ~ t~uain
, Sexually orlen ~ esse~
Page $ ~
· ·
version of an ordinance was moved from January 25 to July
(This date was pushed back several more times, and for similar~
reasons, before the ordinance was finally submitted to Council.)
It was for this same reason that additional hearings were
scheduled during the' second phase of the public sessions.
Likewise, the Committee decided to request that the proposed
ordinance be'considered during the course of three readings, as
contrasted with the no~'mal procedure of suspending .the
thTee-reading practice and passing ordinances -- even those
oftentimes having maJo? effects on the city -- on an emergency
basis in Just one readlng. Throughout its work, the goal of the
Committee was to assure ample ventilation of all points of view,
· ~--he thoroughgoing examination of all of the very difficult
questions involved, and as complete an understanding as possible
by all paz-ties of the issues confronting the Committee and the
solutions arrived at. "-.
Analysis of Testimony. The hearings hel~ by the CoMmittee
on the Proposed Regula%ion of Sexually Oriented Businesses were
am~ong the most extensive ~ .~er .~e/d by any committee of the
Houston City Council. The he'~rings were open to all persons who
wished to testify, and the Committee made no attempt to limit the
type of remarks made to the Committee or to censor those remarks
in' any way. (At this point it should be noted that the Committee
.also accepted written comments from anyone, regardless of whether
they testified in person. Such comments became part of the
Co=.mittee's public record as 'a matter of Course.) However, a
~clear distinction should-be drawn between the Committee's will-
ingness to permit full expression of diverse views --.a willing-
ness that is reflected in the transcript of the hearings -- and
any wholesale incorporation of those r,marks by the Committee
into the ordinance proposed to Council. Indeed, a chief function
of the Committee was to evaluate the testimony, and to set aside
those comments seen as not germane to the issues at hand or not
dealing with problems, addressing instead those issues within the
rightful purview of the city.
Thus, although there were a substantial number of witnesses
expressing a fundamentalist opposition to what those witnesses.
deemed obscenity and pornography, the Committee chose -- and in
fact made clear during ~he hearings -- to focus its efforts on
land use issues rather than questions of pornography and ob-
scenity. Similarly, a number of witnesses made comments adverse
to the operation of gay bars. Again it was pointed out to those
witnesses that such establishments were not nece~.s~ily within
the working definition of a "sexually oriented business" (a
definition that was modified over time as the ordinance was
further refined) and therefore not a subject in themselves to be
dealt with in the proposed ordinance. Finally, a number of
witnesses made statements and proposals that would effectively
ban all sexually oriented businesses, as that phrase is broadly
defined. The Committee made it clear, both during the hearings.
and afterWards, that it was not the intention of the Committee to
propose any ordinance that would be subject to a successful court
challenge because it either directly or indirectly (or for that
matter inadvert~ntly) eliminated the opportunities for such
businesses to ~xist in the City of ~ouston.
c With these comments by way of preface, it is useful
review briefly the principal points made during the hearings and
later relied ~pon by the Committee in the drafting of the
proposed ordinance. Further comments on the ~se of the testimony
in the development of the v~rious ordinance provisions can be
found in the section by section analysis of the ordinance that
concludes this Report.
Th~p6int made by many witnesses that.seemed of merit
to the Committee was-that sexually orlented busxnesses, while a
nuisance 'and not.necessarily representative of the desires or
activities of a m~jority of-Houston~ans, nonetheless have a right
to exist. The rights of indfv~duals were a theme in the testi-
mony of a number of the witnesses. The willingness of
Houstoni~ns to "live and let live" was reinforced in the findings
of a ~ouston attitudes survey conducted by Dr. Steven Klineberg,
of R/ce University, along With others. Briefly put, that study
concluded that Houstonians were loath to support restrictions on
personal behavior. Among those witnesses whose testimony was
seen as most helpful by the Committee, the .majority of such
~itnesses were generally solicitous of individual and minority
rights, not anxious to impose any community.standard of conduct'
on unwilling individuals, and concerned with merely striking an
appropriate balance between the needs of the community at large
and the rights of individuals to do as they please.
The ~ point made by many of the witnesses to whose
testimony the Committee repeatedly referred during its delibera-
tions was that while these businesses might have the right to
exist, protection of their rights could be consistent with
'effective regulatory restrictions that would minimize the adverse
consequences of those businesses to adjacent areas and activ-
ities. These witnesses -- many of them individuals who had
direct personal experience of these businesses in their neighbor-
hoods, or representatives of civic organizations that had had
many dealings with the problems created by such businesses --
stated that while the businesses might have a right to
steps could be taken that, while not unduly restrictive of their
operations, would offer some assistance to those neighbors and
businesses surrounding the sexually oriented business. For
instance, one gentleman living on West Alabama next to an adult
bookstore, while agreeing that such businesses would probably
Page
continue to exist and that he was resigned to that fact, also
cited a series of untcwar.d .incidents occurring, on or near h~s '
property, that were dire:tly related to that adult bookstore. His
pos£t£on se~med to be. that while Council m~ght not be able to
hLm of the business, it might nonetheless take steps to a~elio-
rate the worst effects of that enterprise.
' Th~~-~n~de.by ma~y of the w~tnesses who proved
mo~t helpful to the Co=u~ttee in providing guidance for the
dr:aftLng of the ordinance was that among the most £mportant
~negative effects, of t.bese businesses were the adverse conse-
~ quences on neighborhood protection and enhancement, and the _
I consequent a~verse effect o~ prop.ert, y values.' A number of
~nelghborhoo~ representatives and clv;c club participants re-
counted numerous instances of problems that had been' created by
these businesses fo~ neighborhoods which were tr~ing to preserve'
a neighborhood fabric. Se_~veral r~eal .es_tare brok~s with substani
teal e~per~ence ~ areas af~'T~ by~.sex~-al~y, oriented businesses
offered documented instances' in which property values had been
affected by the establishmen~:~f ~exually oriented businesses, as
well as information of a more"~'eneral.nature as to the effect of
these businesses on the course of neighborhood development.
expert testimony_by Dr.. An__drew_ ~3~ck of the R/ce Center, given
before the full Council, this 'cause and effect" syndrome ~as
again attested to. It 'se,~ed to be a consensus among both the lay~
and expert witnesses that in neighborhood areas and areas of
quality cem~ercial develOpment, the establishment of sexually
oriented businesses had a detrimental effect on property values,_~
at least in pa~-t because they were perceived adversely .to affect
the quality of life -- including among other things such issues
as suitability for fam/ly activities and stability of the
neighborhood environment -- of the area.
.The~ point nade by the witnesses whose testimony was
most com~oni~]' relied upon by the Co.~ittee was .that a~ong the
most significant problems created by the businesses were the
ancil~, activities caused by the clustering of businesses, as
in the case of street prostitution in the lower Westheimer area,
and the probl-~ of exterior appearance.. Even where businesses
could not be forced to relocate because of apparent preemptions
in state law, most witnesses stated that reasonable controls on
stgnage and exterior appearance were required. The intrusiveness'
of the signage and exterior features into the consciousness of
the community was repeatedly cited. It was also noted that
although adults might train themselves to ignore such sign~ge.~ it-
would be hard if not ' impossible to demand the same
self-discipline, from children. That children would be likely
attracted to such advertising (which in at least one case even
featured popular cartoon characters) was perceived as a
significant problem in the expert testimony of one psychiatrist,
· ' Sexually Orien~ii~usi~esses
~age 8
who cited information discUsSing the relations between exposure..
to such signage and psychological problems those children might'
subsequently experience.
Th point developed ~n estimony and regarded
mfgnificant~-~ the Committee was sexually orfented bu'si
~tnesses are likely -contributory factors to criminal activities
that are encouraged as anc'i~~"to these enterprises. .This link
b~tween these businesses an~ related problems of criminal
a~tivity was affirmed by the Chief of Police and other represen-
tatives of the Police Department, as well as by non-expert
witnesses with long personal experience of living in areas where
sexually oriented businesses ~re located. To the Committee, this
issue of criminal activity occurring in the area of sexually
oriented businesses was not a central problem, but rather a
concurrent question of somewhat lesser significance than the land
use issues. .At the same time, however, the Committee felt that
the testimony justified the conclusion that the criminal activity
that does tend to occur in the vicinity of sexually oriented
businesses, particularly whe~.tkos~ businesses have clustered,
has an adverse effect on property values. This adverse effect
makes such activities a secondary concern, even though the
principal focus of the Co~ttee and the ordinance is on land use'
matters.
The~~point brought out in the testimony -- particularly
the testimon~ of city employees engaged in enforcing current
statutes regulating such businesses, as well as private in-
dividuals who have sought legal recourse against such businesses
~-- wa~ the difficulty of achieving reasonable enforcement of the
law. Part of this enforcement problem centers on the relatively
limited arsenal of remedies available to home-rule cities under
-.Texas law in Such circumstances. Some of the problem has been
alleviated by cooperative efforts between cities and counties, as
is the case in ~ouston, where Harris County cooperates with the
city by bringing suits whenever requested to accompany a city
suit, thus bringing into play the padlock power of the county --
a power the city lacks. Bowever, another part of the problem is
that existing laws and ordinances are structured in such a way as
to make it difficult' to sustain an action against even an of-
fender clearly in violation of the law. For example, if an
injunction for abatement of a nuisance is brought against the
owner of a particular sexually oriented business -- such as an
adult modeling studio -- ~t is quite possible that by the time
the'-$6~ is actually brought to trial the ownership of the
business' has been transferred. The case is then thrown into
limbo because the appropriate party or parties is (or are) no
longer "joined" in the suit. The lawsuit stalls while the
business continues in operation.
which the Committee thought relevant to its
deliberations -regarded those businesses which are thought to '
enjoy special protection under the First Amendment. This issue
was perhaps one of the most difficult that the Committee faced.
Despite whatever personal preference the members of the Committee
m/ght have had, the clear mandate of the Committee was to prepare ~
an ordinance tha~...was as legally defensible as possible. After'
considerable delibera~iOn~--~h~Committee accepted the contentions
of Cthose lawyers who argued {hat to lump First Amendment and all'
other businesses into one indistinguishable category for purposes
of regulation would probably be unwise and cause the ordinance to
be submitted to substantial challenges. This is not to say that
the arguments of the lawyers are unquestionably Correct. Nor is
it to say that following the recommendations of these lawyers
represents what the Committee believes to be wisk public policy.
But what the committee did was to remember continuously, its
N principal charge, and to set aside its personal preferences and
opinions in favor of proposing an ordinance with a ~aximum
likelihood of being upheld in court.
While a variety of oth~rA~s~e~ and problems were raised in
testimony taken before the Committee, the foregoing points seemed
to members of the Committee to be the most significant and worthy
of attention. The manner in which this testimony was translated
into proposals for legislative action will become clear in the
Section by Section Analysis that follows below.
PRIOR HOUSTON ATTF~PTS TO REGULATE
Early Efforts. The proposed
the first attempt by the City-of
oriented businesses. As stated
David G. McComb:
ordinance does not represent
Houston to regulate serually
in HOUSTON: A HISTORY, by
"In 1840 a city ordinance provided a fine of not less
than $50 and a jail term of ten to thirty days for any woman
co..~nitting lewd actions or exhibiting herself in a public
place in a style 'not usual for respectable females.'
Brothels within the city limits could not be located closer
than two squares to a family residence. A supplementary
ordinance in 1841 required a $20 bond for.a 'female of ill
fame' found in a public place after 8:00 p.m. in order to
ensure good behavior. Although perhaps not a prostitute,
one of the most notorious female characters from the period
~'was Pamela Mann, an expert at firearms, knives, horseback
riding, and profanity. She appeared in court at various
times charged with counterfeiting, forgery,, fornication,
larceny, and assault. According to William Ranssm Hogan,
~he ran the Mansion' House Hotel in ~uch fashion that
'}~s. Mann and her 'girls' achieved a satisfying success'
Sexually
Page 10
Oriente.~us ihe-~ s6s O
providing Houston with female companionship of a 'robust and
none too virtuous nature.'·
Universal .Amusement. A more recent and perhaps more relevant
attempt to .regulate ~exually oriented businesses in Houston
occurred in 1'973, w~th the passage of Ordinances 28-65 and 36-14.
Ordinance 28-65 amended a prbo~-or_dinance to make it "unlawful
fo~ any person to operate or .cause-'to-rbe operated an adult
commercial establishment within two thousand (2000) feet of a
Church, school or other educational or charitable institution."
Under th/s ordinance, an "adult commercial establishment" was
defined as "any business or enterprise having as a_substantial or_
~{cnifican~ DOZ-t~on ~F {~_~ sto~k in .trade or activity the sale,
distribution, lending, rental, exhlbl{lon, or o%her viewing
of
material depicting sex-ual conduct or specified anatomical -~eas
for consideration." Ordinance 36-14 made it unlawful to ope_rate
within two thousand (2,000) feet of a church, school or other
educational or charitable institution any motion picture theatre
· whiCh exhibits a film that explicitly depicts. ... co~tact
between any part of the genig:h, ls ~f-.one person and 'the genitals,
mouth or anus of another pets'oh; ... con'tact between a person's
mouth, anus, or genitals and the mouth, anus, or genitals of an
animal or fowl;' ... manipulation of a person's genitals;
defecation;or urination." Both ordinances required ~
busihesses comin~'~nder the ambit of the law to bring themselves
into compliance within thirty (30) days of passage of the
ordinances. (A third ordinance, not as significant, dealt ~rith a
redefinition of "public amusement park" and ·places of p~blic
entertainment and amusement. ·)
-The 1977 ordinances were s_u_ccessfu!~y thai!eh_ged in a 1977
case styled Universal Amusement Co., v. Ho-fheinz. In an opinion
handed down October '5, 1977, Judge R~ss N. Sterling granted the
request of plaintiffs for declaratory and injunctive relief. At
the conclusion of the trial, the Court orally declared the
ordinances unconstitutional on their face, p~rmanently enjoined
thei.r enforcement' against plaintiffs, and 'severed plaintiffs'
claims for punitive d~mages and attorneys' fees.
For purposes of considering the ordinance now being proposed
by the Committee, it is instructive to consider the grounds on
which the 1977 ordinances were struck down as unconstitutional by
the Court. Although at least one of the attorneys appearing
before the Committee during its second ~ession of hearings
alleged that no ordinance could be fashioned that would meet the
objections made by the Court, the Com.~ittee is of the opinion
that it is indeed possible to draft such an ordinance.
In summary, Judge Sterling held the ordinances unconstitu-
tional on grounds of vagueness, stating that this alone would be
Page 11
sufficient grounds to void the ordinance on grounds of uncons~i-
tutionality. However, he went on to say that in his opinion-..-_
=here were other constitutional defects, namely that the ordi-
nances were violative of the 'First and Fourteenth Amendments to'-'
=he Constitution by abridging the freedoms of speech and press..
guaranteed therein, that they denied the plaintiffs the equal'- '
protection of the laws as gu~ran~ed by the Fourteenth Amendment,
an~ that they denied plaintiffs due-~Tc~ss of law as guaranteed
byi'the Fifth and Fourteenth Amendments.
~. The Court found that the challenged ordinances
vtolate~ ~as~c tenets of constitutional law. It cited the
general rule that whenever a penal statute is involved -- as was
the case here, since a fine of up to $200 was to be imposed for
violations of ordinance 28-65 -- the terms of that statute "must
be sufficiently explicit to inform those who are~subject to it
what conduct on .their part will render them liable to its penal-
ties" and that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence
rust necessarily guess attics -meaning and differ as to its
application violates the firs~ ~ssential of due process of law.'
However, the Court was quick 'to point out that even more
than the usual rule requiring exactness in the drafting of a
penal statute was involved in the case at hand. The ordinances
in question were not only penal, but also restricted the exercise
of First Amendr. ent rights. While the Court did not hold that no
such restrictions on Pirst Amendment rights could ever be suc-
cessfully enacted, it did state emphatically.that in such in-
stances even stricter standards than those required of ordinary
penal statutes would be called for.
The plaintiffs -in Universal Amusement claimed that the
ordinances under examination failed both the general test of
strictness required of any penal statute, not to mention the
stricter standard applied when a law restricting First Amendment
rights are in q~estion. With this argument the Court agreed.
Especially troublesome was the ~ack of any definitions whatsoever
for such words as "Church," "school,' or "other e~Ucat~onal or
charltaDIe institution." ._e. im{~ the works "substantial" and
"~_iqntfican~" .~s u_~_,d to, modify "po~{on of its stock i~ trade or
activity'. ~as found by the Court to be-"hopelessly va?ue." As
the Court pointed out:
"'Any %heater which ever exhibited 'X or R' movies
might be' covered from time to time depending on the
meaning of the words 'substantial' and 'significant.''
The Court noted that one of the asserted purposes of the
ordinances ~as the protection of children, but held that this
· Sexually Ori te sihesse'~
Page 13 *
to live in a particular section of to~n so thata watchful eye
could be kept on them. To paraphrase The Mikado, the legislative.
remedy should fit the problem. Another possible way of looking
at it is that the cure should not be worse than the disease.
In Univ~rsal Amusement the Court found that there was not
Just ov~rbread~," bu~ '"substantial *overbrea~th." The Court
se~emed to be of the opinion that the attempt tO**r*~gulat9 busi-
ne~ses which dealt in material depic~ing "sexual conduct" or
"sDecified anatomical areas" failed the overbreadth test because
it raised the distinct possibility that the ordinances would
"deter those who normally deal with such materials from exercis'
ing their right to sell or exhibit them because (1} what they
sell or exhibit might fall within the' scope of the ordinance, and
(2) their dealings with such material might resul~ in the brand-
ing of their.businesses as "adult commercial establishments." In /
the opinion of the Court, the ordinances being challenged had the
potential to effectively prohibit all theatres from showing
rated movies and medical bookstores from selling books on anatomy
or physiology which depicte~.~di~y, or partial nudity. Coupled
with the fact that the ordinances as written were not in the
opinion of the Court subject to narrowing by state law decisions,
the ordinances were found to be consequently overbroad and"
~herefore constitutionally infirm.
Protect.ed Speech. The ordinances that were the subject of
the lawsuit in Universal Amusement attempted to regulate to some
extent activities normally considered as under the ambit of the
First Amendment. Therefore one of the issues was whether the
crdinances abridged freedom of speech in any unwarranted fashion.
.The Court noted that there could be regulation of ~uch speech.
But, the Court s~ated, such regulation must be reasonable. In
the case of the ordinances at issue, t'he Court held that the
administrative officials, charged with enforcement of the ordi-
nances were left free to exercise what the Court characterized as
'virtual!y unfettered discretion." For instance, under the
ordinances it was lef-t to a policeman to determine what was a
"church' or "school." Such breadth of discretion was found by
the Court to be unacceptable in ordinances which proposed to
regulate what were considered First Amendment activities.
This concern for protected speech was heightened by the fact
that as a practical matter the ordinances did not merely limit
the time and place and manner where the activities at issue cculd
be engaged in. Instead, in apPli%ation the ordinances banned all
such activities from the City of Houston, at least as far as the
Court could see under its review of the facts. Under such
circumstances, the Court stated, it was impossible to say that
these particular ordinances represented a reasonable restraint on
the First A~nendment activities at issue.
* '~exually Orie~te sineste~
Page 14 .
~tion. The Court in Universal Amusement dlso
stated that while ~ ~ity can treat different 6iass~ of people in'
different ways, the difference in treatment must be based on some
rationale directly connected with the appropriate exercise of
municipal power for accepted purposes. The question in the
particular case was whether the city, in treating the businesses
at issue differently than other businesses, was doing so for
reasons that were grounded in acceptable p~b-li~.po~icy consis-
tently applied. The Court also noted that of some importance
wou~d be whether the state had already enacted legislation to
deal with the public policy issues stated as the grounds for the
ordinances. .
:In Universal Amusement, the Court found that the purported
purpose of protecting -chlfdren and permitting them to be raised.
in a suitable atmosphere, while perhaps worthwhile, did not call
for the expansive ordinances that had been attempted. Moreover,
the Court noted that there were already a substantial number of
laws on the books at the state level dealing with the problem of
protecting children from s~c.h, act~.vities. The Court distin-
guished the Detroit ordinan6e~'o~ which ~ouston had relied, by
noting that one of the pr{mary purposes of that ordinance was to
preserve the quality of urban life. Given these facts, the Court'
seemed to believe that the City of Houston had gone too far in
its ordinances, given the goals it was.seeking to accomplish.
Due Process. The final issues dealt with by the Court in
Un!ve~'sal Amusement was that of denial of due process. The Court
~0u~d that while some exercise of municipal authority in this
area might be Justified, the ordinances at issue went far beyond
what .was permissible and in effect deprived persons of their
property without adequate reason or compensation. First, the
ordinances effectively banned such businesses from the city even
though it purportedly only limited their ability to locate in
certain areas. Second, the ordinances were drafted in such a ~ay
that even if a business could find an acceptable location, the.
business would forever be in jeopardy of losing its authority to
operate if a church or school moved within the prohibited
distance.
~ummary. In reviewing the decision of Universal Amusement
for purposes of its work in drafting an ordinance proposal, the
Co=~ittee kept several points in mind with regard to the fore-
going discussion. First, businesses that are argued as under the
ambit of the First Amendment~njoy special protection. But even
the Court in Universal Amusement seemed to indicate that such
protection is not absolute and that reasonable regulation is
permissible. 'Therefore, the Committee took special care in all
matters of regulation affecting First Amendment businesses to
exercise what the Committee deemed prudence and restraint,
- ' Sexually Businesses
Page 16 - .
Fifth, the Committee has provided in the ordinance 'for'
'seve~al avenues ~f. recourse for any p~rty that believes himself-
aggrieved by admxnlstration of the ordinance. At the same time,
however, the ordinance has throughout been designed to limit the
discretion of the administrative officers ~n charge of the
ordinance to minimize the possibilities for such abuses of
discretion that would re.cuire redress.
" Sixth and finally, the Committee has spent considerable time
reviewing computerized maps to give reasonable assurance that
while the ordinance may be restrictive in absolute terms of
locations available to sexually oriented businesses, it is not
prohibitory in what it seeks to accomplish. After reviewing a
series of map~ developed in accordance with the distance formulas
set forth in the ordinance, the Committee feels that there is
reasonable evidence to support the conclusion'that such is indeed
the case.
R~'_~DIES ADOPTED BY OTHER CITIES
Eouston £s not the on~A~e~i~an city to have had to deal
with the problem of sexually oriented businesses. Other munic-
ipalities such as Detroit, Boston, Chicago, Dallas, Los Angeles,
and Santa Maria, California, as well as regional governments such
as Fairfax County, Virginia, have also grappled with the issue.
A/though ~ouston is ~nique as compared to these other governments
with respect to the zoning issue, there are nonetheless lessons
that can be drawn from comparing the experience of other
municipalities to our own.
Detroit. The efforts of the city of Detroit to regulate
sexually oriented businesses found their roots in attempts made
in 1962 to combat .the skid-row effects occurring in certain
neighborhoods. Ultimately, the city in 1976 amended the
anti-skid row ordinance developed out of that earlier effort to'
cover sexually oriented businesses. These new regulations were
upheld by the United States Supreme Court. The ~s of
this ordinance provided the following:
(1) Sexually oriented businesses were explicitly
defined;
Sexually oriented businesses were prohibited
within five hundred feet (500'} of an area zoned
residential; "-
Sexually oriented businesses were prohibited from
locating within one thousand feet (1000') of any
two other regulated sexually oriented businesses;
and
mixed into the general run of office buildings and retail and
wholesale operations'. Substantial residential housing or resi-.
dential activities .were not part of the fabric of the
neighborhood.
The decision to create a ~ombat Zone proved advantageous to
the city of Boston for a number of reasons. First, the creation
of.a single such zone where all businesses were treated alike
avoided any charges that the Boston regulatory scheme-violated
th6 ~qual protection provisions of the Fourteenth Amendment.
Second, by creating a particular zone where such businesses could
be established without question, the City avoided the sometimes
difficult issues involved in trying to define what would or would
not be considered a "sexually oriented business." Finally, the
city was under this SCheme able to 'avoid the difficulties and
confusions that can sometimes be attendant upon any system
involving licensing. In addition, the Boston approach entailed
lower administrative costs, gave the city firm control over the
growth of the sexually oriented businesses industry, and provided
city officials with a controlled environment -- essentially a
laboratory -- in which to ~es~te the effects of sexually
oriented businesses on their surrounding environment. It is
interesting to note that while the Boston plan has met with '
reasonable success, it has not'been copied by any other American
city.
~ile the Committee was urged to consider the combat zone
concept for ~ouston, the.proposal was discarded at a rather early
point in the deliberations. The principal reason for rejecting
the concept was the geographical difference between Boston and'
~ouston. Boston proper is a city of fairly limited land area.
Houston currently contains approximately 560 square miles. While
a single combat zone might work in Bnston, given its limited
size, the Committee. concluded that a defensive combat zone
approach in ~ouston would require at least several such areas
throughout the city. Otherwise, those located at a distance from
the single combat zone ~ight argue that their right of access to
sexually oriented businesses had been wrongfully limited. The
other problem, of course, would be the% of locating sites for
these multiple combat zones. Al%hough several witnesses
advocated this approach to the Committee, no witness was ready to
volunteer his or her area as a candidate for such a zone -- in
itself eloquent testimony to the perception of the effect of
these businesses on their surrounding areas, a perception that'
expert witnesses would show appears to translate into adverse
conaequences for property values. · .... ~;~
Chica~o. In 1977, the city of Chicago amended its munici~al
ihClude new regulations on adult-use business, es. The ·
ordinance generally followed the Detroit legislation.
The basic strategy of the regulatory, scheme could be broken into
~hree parts: first, there was a strong effort to define the
· ~rpose and intent-of the ordinance; second, there was a good
~eal of effort put ~nto defining sexually oriented businesses;
and third,..th__e.~e was substantial time spent to carefully ~efine
~e type of regulation and enforcement being adopted.
The Chicago ordinance also had some features not found in
%e Detroit ordinance. First, registration standards were imposed
_eat required nine types of responses, mostly concerning owner-
ship. Certain restrictions, though vaguely ~efined, were placed
. % exterior displays. On this particular point, the ordinance
! :ovided that "no adult ~se shall be conducted in'any manner that
pex~ts the observation of any material depicting, describing or
: ~lating to 'specified sexual activities' or 'specific anatomical
; ~eas' from any public way or from any property not registered as
an adult use." This provision, was u.nder the ordinance applicable
~n "any display decoration, ~f~n, 'show window, or store opening."
] .nelly, fines of not less than fifty dollars ($50.00) nor more
than t~o hundred dollars ($200.00) were imposed for each offens~ '
-- uith the provision that in the case of a continuing offense
~ day during which the offense continued could be-counted as a
~=F.£ate case.
Dallas. The city of Dallas adopted an ordinance regulating
=_xually oriented businesses in 1977. In%erestingly, while
Dallas is a zoned city, this regulatory ordinance was not made
~ rt of the zoning ordinance, but rather was incorporated into
t e general municipal code. The Dallas ordinance, like that in
Chicago, was closely modelled on the Detroit law.
Under the Dallas ordinance, the distance requirement between
se×ually oriented businesses and areas zoned residential was one
t~ousand feet (1000'). This distance was measured as a straight
] ne from property line to property line of the two conflicting
structures without regard to intervening structures. It is
i"structive to note that this one thousand foot (1000') re-_~
$ fiction was struck down due to lack of evidence as to the
ieteriorating effects sustained by neighborhoods as a result of
:he interposition of sexually oriented businesses.
Los Angeles. In 1978, the city of Los Angele-~.-.l~osed a
:hirty (30) -day moratorium on the establishment of new sex~ally
iented businesses in order to provide an opportunity for the
to draft a new and comprehensive ordinance regulating the
try. (It is not clear whether such a moratorium would be/
~.-~ssible under recent antitrust decisions involving the
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Page 22
to pass legislation tn assure public safety, health, morals and
other related goals. The city also bases its rEght to regulate'
au proposed in this ordinance ur. dcr specific, grant~ of authority
from the state, including Art. 1175, .~22 (authorizing regulation
by municipalities of places of public amusement), Art. 1175, S23
(authorizing.licensing by =uni¢ipalities of businesses suscepti-
ble to the police power), Art. 1175, 524 {authorizing muni._q!Pal
.... r-e~ulation of billboards and ocher exterior signage), Art.
S~4 (authorizing municipalities to exercise the general police
power), an~ Art. 2372w (a=thorizing municipalit£es to regulate
businesses whose principal activity is the offering of services
intended to provide sexual stimulation or sexual .gratification).
The Committee 'has proposed that Council exercise the
foregoing powers on the basis of its findings generated through
the hearings held by the Committee and Council between Novem-
ber 4, 1982 and October 25, 1983. These. fEn. dings have already
been discussed at sone length in the foregoing subsection titled
"Analysis of Testimony." The Legislative Findings section of the
ordinance briefly suzmarizes_those f~.'ndings.
Article I: Definitions. 'The definitions included under
Artic'le .I.have been carefully crafted to conform with the Commit-
tee's intention to regulate as effectively as possible, without
infringing on federal constitutional guarantees, areas preempted
by state legislation or the operation of legitimate businesses.
Although most of the definitions are by their nature
self-evident, comments on some of the definitions .are warranted
to underscore the balance which the Committee constantly sought
between effective regulation on. the one hand and, on the other,
the limits placed on. municipal .action by federal constitutional
guarantees and state 'law.
"Enterprise," for example, refers only to those establis.h-
ments whose maior bus~n~ss %nvolves products or services intended
'to provi'de sexual stim~la ~" -- ' '
- - ' t~on or gratification. Inclusion of the
word "major" is intended to exempt out such_businesseS__ _ as_ conv~-
n.~ence Stores which se]~ '~layhn¥" or "PIayqirl~ or o%hqr similar
such magazines ~s a relatively .small part.~ of th_eir overall o~era-
_-~ion. In addition, specific exemptions are granted to several
categories of businesses. Adult bookstores, adult movie theatres
and businesses licensed to sell alcoholic beverages are exempted
because of apparent preemption by state law: massage parlors are
omitted because they are covered by another city ordinance. (It
should be noted, however, that although the-foregoing businesses
are not de fined as "enterprises, · and therefore not subject to
the locational and permit requirements of the ordinance, they
still are subject to specified provisions of the ordinance.
Businesses licensed by the state, such as those employing
Page 23 .
psychologists or physicians are al.~o exempted, as are bu.~inesses
whose major activity is the selling of clothes.
The definitions in Article ! also offer 'good examples of the
consistency in reasoning which the Committee sought to achieve in
its work._~For instance, it has already- been noted'that a major
theme in t~h-~---~./mony heard by the Committee concerned the
-de~;eterious effects of sexually oriented businesses on children,
aha the consequent problems caused for neighborhood stability and
the. quality of life, as reflected in property values. For this
reason, schools were placed within the category of protected
establishments near wh£ch such sexually oriented businesses
cannot be located. (It was this same general line of reasoning
-- namely, the need to protect areas frequented by children and
used for family oriented activities .-- that l~d to including
churches among the protected activity categories.~ However, it
was also concluded by the Committee that at some point a person,
even though still in school, matures to the point where the city
can no longer reasonably claim the right to protect him or her
from such businesses. ~hil~.%ah~.~qe at which maturity may be
achieved by different individdals may vary, it was concluded by
the Committee that a reasonable cutoff age as a general rule
would be seventeen (17), coinciding with earliest usual age of'
graduation from secondary school. For this reason the definition
of "school" (Article I, Section V) is limited "to public and-
private schools used for primary or secondary education."
Another problem the 'Committee faced in drafting the ordi-
nance Proposal was to minimize opportunities.for circumvention of
the ordinance. Concern was expressed by all members of the
Committee and by the Legal Department, that some sexually
oriented businesses,.eager to escape the locattonal restrictions
placed upon them, might start showing movies and argue that they
were in fact "Adult Movie Theaters" protected by state law and
not .subject to municipal restrictions on location. The Committee.
has sought to deal. with problems of 'this so~t by careful
drafting, as in the definition of "Adult Movie Theatre", which
.specifically requires that such .theatres have tiers .or rows of
seats facing a screen or projection.area, making it clear that
~imply 'setting up a projector and a screen will not make. a
modeling studio a movie theater under the ordinance.
Article II. Permit Required· Article II of the ordinance
establishes that a~l sexUally oriented commercial en~rj~r~ses
within the Houston city limits must obtain a license from the
Director of Finance and Administration before they can operate.
Article III. Permit ~pplica.tions. The requirements which
must be fulfilled before a permit may be granted to a sexually
oriented commercial enterprise are set out in Article III. The
Page 24
fortuity with all
provisions will
per~.{ t.
list of information to be supplied, which shall be submitted to
the Director of Finance and Administration, was taken for the'
most part from the present ordinance 28-73. This was decided by
the Committee on the basis of issues raised during the hearings.
For inst.ance, a number of witn.esses cited the. problems inherent
in track~ng down the person ultimately responszble for a l~artner-
ship. or corporation; hence, the Committee has reconmmnded a
"- . hiD__disclosur_es which, while not onerous to the
bus,[ness enterprise, ~ii~-- provide information adequate for
reasonable enforcement of the ordinance should its provisions
subsequently be violated. The application requirements also call
for submission of relevant state-issued documents pertaining to
the authorization of the enterprise to do bus~ess within the
State of Texas. The application form shall also include a
written declaration that all information contained An the appli-
cation is true and correct, and that the applicant ks An .con-
provisions of the ordinance; violation of these
be grounds for suspension or revocation of the
Article IV. Permit Fee? .%.. 'Th~ ordinance establishes a
permi~ fee of $350.00 for each permit application. The ~m~unt of
this fee was based on testimony.by William R. Brown, Director of
Finance and Administration, which fixed the cost of processing
each such application. ~t within Ten Dollars ($10.00) of the
$350.00 figure later adopted by the Committee. Since the $350.00
represents the cost to the city of actually processing the
application, regardless of whether the perm/t is approved or
disapproved, the fee is payable at the time 'the permit is re-
quested and shall be nonref~ndable. The permit shall be good for
one year from the date of issuance, and shall be renewable
annually; the $350.00 fee fo-- each renewal of the permit repre-
sents the costs of each year's review of the permit application
and the ongoing costs of administering the' regulations estab-
lished by the ordinance, including the costs of enforcement
through inspections of the establishments by city personnel.
It should also be noted that 'just prior to submission of the
proposed ordinance to Council, a general review of all fees and
charges of the City of Houston was undertaken. This general
review, which will generate the most reliable direct and indirect
cost data in the city's history, may produce a different figure ·
for the processing of the permit. If so, an adjustment (most
likely upward) will have to be made in the permit fee. At the
time of this writing, however, the $350.00 figure st~l~Iapre-
~ents the best estimate of the actual cost of processing the
application and administering the regulations proposed under the
ordinance.
¢
Page 25 - ·
Article V. Issuance or Den~al of a Permit. Assuming the
submitted""~ppl£cation conforms to 'the requirements of the ordi- '
hence, the Director of Finance and Administration must within
twenty (20) days issue a pe~nit to the applicant. Although there
are several grounds on which an application fo~ a permit will be'
denied -- the failure to supply all of the required information,
for example, or the..g/~/ng of ~nformation that ~s knowingly
false, fraudulent or untrut~f~l--~..-..the most important of these
r~asons focuses on certain distance requirements that must be met
ih the location of sexually oriented commercial enterprises.
(Again, exempted from these locational restrictions are adult
movi~ theaters, adult bookstores, businesses s~11ing alcoholic
beverages, and massage parlors.) .Specifically, the or41nance
would require that all subject businesses be located not less
~than 750 f~et from a church or school (both terms being defined
in the ordinance} an~ not less than 1,000 feet from each other.
(In the event two such.businesses are closer to each other than
1,000 feet, the~ Article VI, Section B provides that a permit
shall be issued to 'the applicant 'having the longer period of
enterprise ownership at the $~me l~cation for which a permit is
sought."} ~ % ·
A third distance requirement set out in Article V has been '
characterized as the "residential concentrat-ion" test. A circle
with a 1,000' foot. radius is drawn around the location of the
proposed business.' If within the circle thereby determined
seventy-five percent (75%} or more of the tracts are residential
(that is, if seventy-five percent (75%) or more of the tracts
were coded as residential, in the 'city's Metrocom computer), then
the business could not locate there. Conversely, however, should
land use in the area become more .commercial., such that the
percentage dropped below seventy-five percent (75%), the business
might under a new permit application be granted the right to
operate at the formerly unacceptable location.
These distance requirements are good examples of the Commit-
tee's efforts to analyze the information preserved during the
public hearings, to distill from that information the real nature
of the-problems to be addressed and to then develop solutions
logically and consistently related to the actual problems. For
example, while many who testified acknowledged the right of such
businesses to exist, and while many of these same witnesses
expressed solicitude for the rights of those who might want to
avail themselves of the goods or services offered by such busi~
nesses~ - the same witnesses also expressed strong concern about
balancing these.considerations against the effects such busi-
nesses might have on children and the fabric of the family unit,
as well as property values and the 'quality of urban life. I~-
reviewing the testimony, the Committee concluded that this
concern was justified -- particularly in light of some of the
SexuaLly Or'n= u.~
Page 26 ' ~u
expert testimony offered -- and hence created the 750 foot rule
with respect to churches and schools which were viewed as centers
for family oriented activities.
A second set of problem~ brought ou~ in the hearings is the
detrimental effect that the~~r£Dg.~f such businesses can
have on a surrounding area. ~t~ony from the Chief of Police,
as. well as informat2.oa supplied by residents of areas where
concentrations of such b~i~e~ are unusually high, repeated
th6 point that the clustering of such businesses exacerbate the
pr~blems they create by developing an atmosphere h which a
'secondary market' of illicit activities -- bothsexual and
otherwise -- are encouraged. .Although most witnesses agreed that
the location 6f such businesses could not be restricted ~n such a
waY' as to effectively eliminate them altogether, most witnesses
-- including the Chief of Police -- stated that in their view a
'separation' or "nonclustering" provision would alleviate some of
the problems normally associated with the operation of such
businesses. In reviewing this'testimony, and in considering the
experience of cities such a~ D~trQit, the Committee concurred
with the judgment of the. ~itne~s~s and therefore included a
requirement regarding spacing of the businesses from each other.
A third set of problems identified during the hearings was
the difficulties created when these businesses locate in areas
that are~rimarily residential in chara~er~ These Problems are
aggravated 'in Houkt6n because o~the 'lack of'zoning laws; in the
absence of 'any ordinance, only deed-restricted developments are
allowed some measure of protection and even that degree of
protection stops at the border of the deed restricted area. Most
witnesses- who testified on this point before 'the Committee
acknowledged that there was little likelihood that zoning would
be
imposed in M6uston. At the same time, however, many of these
~ame witnesses indicated their belief that reliance on deed~
restrictions as the sole method of protection was woefully
inadequate, particularly since so many of the areas most severely
affected by the problem.of sexually oriented businesses were one~
in which dee~ restrictlons had irrevocably lapsed, or in which
uch restrictions had never existed at all. _3
In reviewing the testimony on this point, the Committee
concluded that there were sound policy reasons for the city to
provide greater protection for areas of high residential concen-
tration f_rom the adverse consequences of too many seMually
oriented businesses. Concern for children and f~mil¥-related
a~tivit-i~s already cited'" above with respect to the distance
requirement from church and schools was likewise a factor here.
Concern was also felt for the need to maintain some degree of
~tability in residential areas so as to provide at least a
mea__s~re of corresponding stability in the proper~y tax bas%.
'" '' Sexually Oriente~usi~esse~
page 27 ·
Finally, concern was expressed that the protections afforded deed
restricted areas, however minimal, ought to be extended by
providing singular (if not the same} protection to any area with
a high ¢once~tration of .residential usage. (Although. the
Committee consLdered extending the same sorts of proections, to
areas less residential An character, ~t was not thought that the
same policy considerations appll6d--~th-~qual .=force as areas
beu~me 'less residential.']'
¢.
In evaluating these distance requirements, the Committee
als~ remained sensitive to concerns that were raised during the
hearings by opponents of the ordinance. For instance, at least
one of the lawyers representing some Of the businesses that will
be affected by the ordinance argued that the "residential concen-
tration" test was tantamount to zoning. After careful considera-
tion the Committee respectfully disagreed. . To the Committee,.
there is a great deal of difference between an'Ordinance creating.
a z~ning commission which then .proceeds to establish use cate-
gor~es for'entire areas of the city and an ordinance which merely
requires that if the market,_.o~erating freely, has resulted ~n an
area that is "pr. edominantly:-'re~tdential" in character, then
certain businesses cannot locate within a fixed distance of that
area. In the first instance, the city dictates land usage and '
only a change by the city in the ordinance fixing such usage will
permit 'deviation from that rule. In the second instance, the
city merely in
provides ~hat tn the event usage a pa~-ttcular area
should through operatLon, of the free market develop along certain
!ines,. then certain restrictions will be involved. Conversely,
should the market dictate a change [n overall usage of an area
(as in a case where an area formerly predominantly residential
became commercial), then the city restrictions would be lifted.
The difference might best be characterized as that between active
and passive -- or "reflective" -- land management.
The Committee also took quite seriously the coDcerns ex-
pressed during the hearings by some representat/ves of the
affected businesses that determining whether a proposed.location
would conform, with the ordinance would prove unduly burdensome
and costly. ~owever, the Committee believes that introduction of
the Met_rocom computerized mapping system into city government
effectively answers this concern. As stated in testimony offered
before the Co..-unittee by Ken Strange, the Metrocom a~ministrator,
it will be possible, for a minimal charge which reflects the
actual cost of co~ut-.r and clerical time, to determine in
advance ~- and within just a few hours -- whether a particular
proposed site is permissible for a sexually oriented business.
Under the circumstances, the Committee concluded that the "res-
idential concentration' test was not only a suitable remedy for
some of the problems adduced durinq the hearings, but also that
· '~B '' ss '
" ' ' Sexually
Page 28
the test would not place an un'due or
businesses to be regulatnd.
unfair burden on the
A brief commeht should be 'made with respect to
process establ'ished to provide recourse from permit
the Directo~, of Finance and Administration. While
the appeals
denials by"
an initial
appeal hearing before the Dire.ct~an. is provided for in the
ordinance, the Committee felt that given the-nature of the issues
i~olved, and the desire to assume that the ordinance in both
theory and practice did not operate to abuse individual rights,
an appeal--to Council should also be provided. This has been done
in Article V, Section E.
Article ~I. -Existing Enterprises. The method of transition
from ~he present situation to that Under the'new Ordinance, and
specifically the treatment of previously existing businesses
under the new ordinance was the subject of considerable thought
by the Committee. The results of that lengthy consideration of
the transition problems are embodied in Article VI.
Section A of Article VP ~ro~iJ&s the timetable under which
businesses must conform with the ordinance. For this purpose the
ordinance divides the City into four quadrants; compliance with'
the terms and conditions of the ordinance are phased through use
of these quadrants. Section B provides that where two subject
,:businesses are within 1,000 feet of each other, that business
having the longer period of ownership at the same location shall
receive the permit, while the business with the lesser ownership
period at the same location shall be denied 'a perm/t. In the
opinion of the COmmittee, this approach seemed the fairest Way to
treat the difficult problem of dealing fairly with businesses too
close together to comply with the ordinance, without abandoning
entirely the attempt', to enforce the ordinance against existing
businesses. The Committee chose to remain, consistent' with this
"prior in time, prior in right" approach by providing that'where
a subject business is closer than 750 feet to a church or school,
"'~ that business will not be 'required to abandon the location if it
can be shown that the period of enterprise ownership at the same
location exceeds the length of time the church'or schOOl has been
located at that site.
Sections C and D of Article VI deal with the diffiCUlt issue
of grand-fathering versus amortization, of existing businesses.
The Committee decisions with respect to the issues raised by this
question again exempt~fy the careful attempt to base legislative
action on the relevant information gathered during the hearings
process as well as the desire of the Committee to offer the
maximum possible protection to individual interests while also
dealing effectively with the need for action testified to in the
hearings.
· ' 'Sexually Oriented~si~esse's
Page 29 -
During the hearings, ~t became evident to the Committee that
the problems created by sexuall}, oriented businesseshad been
allowed to persist for so long that merely addressing the problem
"from here on out' would not be adequate. Prospective legis-
lation would do little or nothing to alleviate the current
serious problem caused by businesses already existing. The
Committee therefo~ concluded t~at existing businesses should/
come under the ordinance; for th~s reason the Commit~ee-~gJ.eg~ted
gra~dfathering of existing bus~nesses and determined that amor-
tization would be the appropriate approach. At the same time,
however, the Committee recognized that even if existing busi-
nesses were to be brought under the ordinance, this could not be
done in a way that would ignore the investments' that had been
made in the businesses (and therefore prima facte unconstitu-
tionally deprive persons of their property withOut just compen-
sation,)... The Committee understood -- and if kt had not, it
certainly would hav~ after having been drilled ~n ~he po_i~
numerous times by representatives of the Legal Department --
that even under an amortization approach the a~nortlzatlon period
could not be so short aS to ~f£ect~v~Iy deprive the owners of the
subject businesses of thei~'% property interests without just
compensation.
Sensitivity to the need for an adequate amortization period
was frustrated, however, by the lack of evidence in the hearing
record on which the Committee could base its decision as to what
constitutes an appropriate amortization period. No member of the
affected industries, nor owners or representatives of affected
individual businesses, appeared before the Committee for purposes
of offering testimony on this point. (One owner of an adult
bookstore did suggest, by written correspondence to the Commit-
tee, that the amortization period be extended to ten (10) years;
however, the Committee believed that this suggestion was un-
realistic. Certainly'the recommendation was not supported by any
factual data.)
In the absence of such testimony, the Committee found itself
in a difficult position. While the Committee adm/ttedly wished
to legislate the shortest possible period within which subject
businesses must come under the ordinance or, alternatively,
abandon their present locations, the members did not want to
impose a time limit that, based on actual numbers, was unfair.
The problem, however, was that the numbers were not available
because the relevant affected businesses had chosen not to supply
them to the Committee. (The Co._m~.~i~e briefly considered using
the subpoena, powers available to Council under the Charter when
considering such legislative matters, but decided against doing
so for reasons explained below.)
PageSexually 30 Or£ ce~usmnesse-s .
In the end, the Committee devised ordinance provisions-.
Sections C and D of Article VI -- which deal with this dilemma in '
an effective, fair and practical way. Section C of Article VI
provides that if an existing business cannot qualify for a permit
under the ordinance, then that business shall terminate its
operations at that particular location within six months after
the business receives notice from the Director of Finance and
Adm/nistration of its ineligibility for a ..permit. ~owever,
should any business so notified believe that six mo~ths-w~ll be
insufficient for the business to recoup the investment
re~resented by the enterprise, then the owner or owners of that
business shall have the right to petition the Director of Finance
and Administration for an extension, which can be as long as the
Director determines appropriate based.on the evidence presented.
The Committee believes this approach adequately answers the
dilemma presented by the lack of factual testimony in the record
as to the earning capacity of these businesses. The provisions
set forth a reasonable minimum time period for compliance that
speaks to the Committee's de~.i~e ~om.'speedy implementation of the
ordinance. At the same" time, 'b6sinesses which believe six months
is too short, can, if they choose, come forward with books and
records supporting their contention that they are entitled to a
longer amortization period -- indeed, to as long an amortization
period as they can prove. Should the Director of Finance and
Administration refuse to grant such an extension despite the
evidence, submitted or should the extension be less than that
reasonably justified, the decision could be appealed to 'the
Council under Article V, Section E. And if that appeal failed,
it is the Committee's understanding that the applicant may have
standing to appeal the Director's decision to the state district
courts, as an arbitrary and capricious exercise of discretionary
authority under those doctrines relating to taking of prope~-ty.
The Com~ittee'believes that this approach is fairer and more
feasible than fixing a longer period of amortization effective
with respect to all businesses. Moreover, th~s approach avoids
the need to subpoena books and records fr~m business owners
unwilling or at least hesitant to divulge financial information
in order to develop an amortization period grounded in a hearing
record. Instead, the decision is left to each individual busi-
ness and its owner as to whether that particUlar owner wishes to
divulge business data in order to secure an extension of the six
month time limit. This assures the business owner maximum
privacy should he or she so desire, while also allowing the city
to achieve its goal of speedy-'c~pliance with the ordinance in
order to deal as effectively as possible with a serious existing
problem.
· OrEente ,~ii'i~ s i]~e s s e's Page 3 1
Artfcle VII. Revocation of Perm ft. The Committee in 'hearing
testi~ony became concerned no= ~ust about the circumstances under '
which the initial permit would be granted, but also about the
means by wh£ch & perm. it could be revoked should a business fall
out of compliance wlth the ordinance during the term of. the
pernit. For this reason, the' Committee regueste~ the drafting of
provisions that 'dealt with the principal problems testified to
---du~ing the hearings as to the operation of these busihesSes....
Th~:se common problems can be classified as follows:
Minors as Employees. A number of witnesses before
the Committee expressed concern, .particularly with
regard to adult modeling, studio:.:: as to the 'actual age
of some persons employed on the premises. Article VII,
Section A(1) provides that a permit shall be..revoked if
persons .under the age of seventeen [17) are-found to
be employees of a subject enterprise. Seventeen years ·
of age was selected to comply with relevant state law.
A companion provision, Article XI, prohibits the entry
upon the premises of such busi~.esses of .anyone younger
than seventeen, and re~res'each affected business to
provide an attendant to assure compliance with this
prohibition. '
Exterior. , Appearance.. , and.. Si.. ~'na~e. Although a
majority of the wItnesses appearing before the Corn=it-
tee felt that the control of the exterior appearance
and signage of such businesses would help deal with the
negative effect of' such businesses on neighborhood
stability and property values, most also stated concern
that such provisions, if enacted, would not be heeded
seriously by the businesses in question. In 'consider-
ing these arguments, the Com~nit tee concluded that
effective enforcement of these provisions was a neces-
sity. The Committee therefore provided that violation
of these provisions will result in loss of the permit
to do business.
Recurring or Chronic Criminal Activity. A consis-
tent theme in the testimony before th~ Committee,
whether offered by experts, citizens with specially
significant experience with sexually oriented busi-
nesses or members of the general public, was the
problem of associated crime taking place in these
establishments without action being taken by the city
or any other suitable authority against such
establishments. Once again, many witnesses stated that
while they understood the need to accept the right of
such businesses to exist, they believed .there was. a
need to provide sanctions against those businesses
Sexually Orient~ustnesse~
~'age 32 ' ' '
wh$ch operate outside the law or which permit (either
deliberately or by acts of omission) unlawful
activities to take place on their premises. Article
3;II, Section A(3) addresses this problem raised during
the hearings by prov£ding that whenever three or more
persons' are adjudged guilty in a trial court of
committ~g certain criminal acts (as specifiea in
Chapter 21, Chapter 43, Section 22.01!, or SectiOn-'
22.021 of the Texas Penal Code) on the premises of such
a business, the permit of that business will be revoked
s.it can .be shown that the owne. r or opera.tot of the
lness either knew of the activities and dzd not seek
to prevent them, or else'failed to take adequate steps
to become aware of the activity.
The Committee believes, that the concept of three
or ~ore persons being found gui}ty in a trial ~ourt
/servzng as the triggering mechanlsm for this .position
:is both fair and effective. Requiring actual convic-
tions deals with the co~%er~-~wpressed by .some during
the hearings that such a provision, if triggered only
by a certain number of arrests, would encourage police
harassment of such establishments. The sensible
alternative appeared to require judicial action on the
arrest. At the same time, however, members of the
Committee were keenly aware that the pace of the
Judicial process makes it unlikely that in any one-year
period three or more persons would be arrested, tried
and have their cases heard at all levels of appeal.
Given these realities, Article VII, Section A(3)
represents a compromise in which judicial action is
required, but completion of the appeals process is not.
Moreover, should a particular business owner feel that
this revocation mechanism is being used improperly
against him because of.some defect in the adjudications
relied upon, thi~ issue can be raised independently in
the appeal on the revocation where the Director can
then m~ke a determination on the merits of the argument
separate from the criminal process.
False, Fraudulent or Untruthful Permit Informa-
tion. One of the most significant difficulties
reported to the Committee during its hearings by those
agencies currently charged with enforcement of existing
laws against those businesses proposed to be covered by
the ordinance is the lack of accurate and complete
data. I_n many instances according to testimony this
lack of information is due to the businesses
themselves, which engage in practices ranging from
legally complex schemes of corporate ownership that
p~ga 33
Obscure true authority and control to outright
falsehoods and fraudulent misrepresentations with
respect~ff~o~...~ t.he operations of a business, ~t is of
course ss~ble to divert those who are determined to
undertake such actions from doing so. But the
Committe'e concluded that a major gap In enforcement
___~ould be created if the giving of false, fraudulent or
untrutb~al_tnformation on the application form were
provided for; this Is the reason for, and purpose of
Article VII, Section A(4).
As a concluding comment, the Committee would point out that
all of the revocation provisions are .subject to the same appeals
process provided for elsewhere throughout the ordinance. (These
appeals provisions are set out in detail in Article V, Sections C
through E.) This appeals process would include.an .appeal to
Council. The Committee ks also of the opinion that in the event
Council were to uphold the revocation of a permit by the Director
of Finance and Administration, that decision would be subject to
appeal to a state district coqKt.
Article IX.' Other Permit Provisions. Article IX
member of miscellaneous but important provisions.
requires posting of the permit on the premises of the business
auuhorized by that permit. .The permit must be posted in an
and 'conspicuous" place .to assure ease of enforcement'b~ public
officials. (Open and conspicuous posting of the permit also
benefits the business, since it allows for a check of the per-
mit's existence with a minimum of disruption to normal business
cperations.)
includes a
Section A '
Section B makes all permits issued under the ordinance good
only for the location for which the permit was originally issued;
in addition, permits are not assignable or transferable. This
latter provision was adopted by the Committee in response to the
problem cited during the hearing of "rolling over" ownersh/p of a
business. T_he propen~4ty of such businesses ~hen under scrutiny
(as during a court case brought by the city for prohibited
activities) to change ownership and thereby continue to do
business while avoiding further legal action (because the new
owner has not been named as a defendant in the city suit) is
dealt with by making any such change of ownership grounds for
termination of the permit. Section C of Article IX makes it
unlawful to counterfeit, forge, change, deface or alter a perm/t'
in a.ny ~ay.
Articles IX and X. Restrictions on Exterior Apoearance and
Signage. Article IX which covers all sexually oriented busi-
nesses, as ~ell as adult bookstores, adult movie theatres, and
massage establishments, sets restrictions regarding the external
appearance of all'SuCh bugthesses. (With respect to
selling alcohol, only signage and not exterior appearance
regulated.} First, no such business can allow its goods
· ervices to be visible from an). peint outride th~ establ!shment.;~.....:
Second, the ordinance forbids the use ef flashing lights-or,.!.
pictorial representations on the exterior 'of such businesses;-.'
words can be.used to a limited extent as noted below in the''
di~cussion of Article X. Third, the ordinance requires ~hat. all'
such 'b~ln~s be painted a single achromatic ¢olor.-- that is
to csay, some shade of grey. Exceptions to this requirement are
permitted where the business is located in a commercial
multi-unit center where the entire center is painted the same
color, or where the color scheme employed is part of an overall
architectural system or pattern. (A similar exception is pro-
vided for any unpainted portions of the. exterior.) The ordinance
provides that all subject businesses will come into conformity
with these provisions of the ordinance within six ~onths of'the
effective date of the ordinance. ·
Article X regulates th~:~igna~e of all sexually oriented
businesses, including adult ~6kst6res, adult movie theatres, and
massage establishments; businesses licensed to sell alcoholic
beverages also are subject to the signage provisions. The '
ordinance al-lows two types of signs to be displayed. The first
t3~pe -- a "primary sign" -- may contain only the name of the
· establishment and a generic phrase, selected from phrases
specified in t_he ordinance, describing the nature of the
establishment. The letters on a "primary sign' must be uniform
and must be of a solid color. The background on the sign also
must be of a solid color. Additionally, 'primary st~ns" must not
contain any pictorial representations or flashing lights, must be
· rectangular, must not exceed.75 square feet in area, and must not
exceed 10 feet in height and l0 feet in length.
The second type of sign is the "secondary sign." A
"secondary sign," while smaller than a "primary ~ign," has fe~er
restrictions placed on it. ".Secondary signs" are regulated 'only
to the extent that they must.be attached to a wall or door of an
establishment, must be rectangular, must not exceed 20 square
feet in area and must not exceed 5 feet in height-and 4 feet in
length.
Non-conforming s~gns must be removed or made to conform
within six months of the effective date of the ordinance. ~xten-
sions of the six month period can be granted by the Director of
the Department of Finance and Administration if it can.be proved
that more time is needed to recoupment the investment in the
non-conforming sign. Approval of the request for extension
cannot be withheld if the request is adequately supported by
financial records. The procedure for securing such an extension
is v£rtually identical to the procedure set out
Sections D through E, concerning requests for extensions of the ·
'six month amortization period for non-conforming existing
enterprises.
The Committee adopted these provis~ons re~arding exterior
appearance and signage, after hearing considerable testimony, both
fro~ expert w~tnesses an~ Members of the lay public, regarding
the~roblems caused by the exterior appearance and signage of the
businesses. Again,-the majority of witnesses admitted the right
of-such businesses to exist, and a number of ~itnesses pointed
Out what they bel=eved to be the s~ate-tmposed l~mitations on the
city's ability to re,elate the location of cert~n'kinds of these
businesses, such as adult mo%lo theaters and adult bookstores.
However, it was also pointed out to the Committee by a number of
witnesses that. despite these concessions, action-should still be
taken to minimize the adverse effect of these bu~esses on their
surrounding neighborhoods.
The Co~,,ittee found in hearing testimony that these adverse
effects take several forms~'.~'.Fbr~t, a number of experts in
~ouston real estate testified that the businesses adversely
affect the value of adjoining and neighboring property. Specific -
examples of this phenomena were cited to the Committee during its
hearings. (Similar testimony was offered during the additional
hearing held before the entire Council.) Second, the Committee
received lay testimony regarding the' effects of the exterior
appearance of such businesses on children. A number, of parents
expressed concern over the consequences to their own children and
.children of others because of exposure to the language and
$ignage, including pictorial representations, used by these
businesses. This testimony from lay persons was corroborated by
expert statements regarding the adverse effects of such '~ignage
and exterior decoration upon children.
These two considerations -- the effect of the businesses on
the value of neighboring properties and on children -- se-med to
the Committee to be part of the more general problem of preseving
a reasonable level of quality of life in ~ouston, a problem of
paramount importance if the city is to maintain a stable
community environment where property values are maintained (an
essential element in any consideration of municipal finances, for
example) and further investment is encouraged. There was
considerable testimony, for instance, to the effect that the
current ~ituation along lower Westheimer ~s impeding economic
redevelopment of the area. The sexually oriented businesses
clustered in that area are apparently able to pay extraordinarily
high monthly, rents -- much higher than non-se×ually oriented
businesses can afford. The' result has been the "shutting out" of
non-sexually oriented businesses, which could survive
Sexually Orient~usi~e.~se~
Page 36 ..
economically except
addition, there was
atmosphere created by
difficult for non-Sexually oriented businesses
sufficient clientele to be successful.) This
attract 'se~.d businesses' has in turn made it
encourage other larger-scale quality development in
hag also discoura~d-those who wish to reside in
thereby 'continue the mixed-development plan of land use that has
historically made the Montrose a unique community.
for the artificially high rents.
considerable testimony as to how the
the cluste~ing of such busineese made it
to attract
inability to
difficult to
the area. It
the area and
In response to these problems, the Committee did not propose
steps that would ban sexually oriented businesses altogether.
Instead, the ~emedies proposed would limit the concentration of
such businesses and their obtrusiveness even where allowed to
locate; At is the intention thereby to create an economic
situation in which other type~ of businesses might also be
encouraged to locate An an area, thereby achieving a more
balanced urban mix. Where the particular type of business could
not be regulated as to i~s~l:catton ~- as in the ~ase of adult
bookstores or adult movie ~hea{r~s. thanks to the apparent
preemption of any city action because of state law -- the
Committee recommended the next most effective and available
action: namely, to make the businesses as unobtrusive as
possible, and to minimize the.negative impact of the businesses
on their surrounding areas through controls on signage and
exterior appearance.
There were those who argued to the Committee that the
signage of sexaull? oriented businesses is no more alluring than
that associated with other outdoor advertising. Other witnesses
contended that even the garish external appearance of these
businesses was no worse .than might be found in conjunction with
other non-sexually oriented businesses. Ba~ed on all of the
testimony, however, the Committee concluded that the qualitative
difference between the slgnage and exterior appearance regulated
under this ordinance and other signage and exterior businesses
themselves. Based on the testimony, it is the opinion of the
Committee that sexually oriented businesses have adverse effects
on their surrounding neighborhoods unlike any negative effects
that could be sho%m by strip 'shopping centers in general,
convenience stores or other commercial establishments. As the.
Committee reads the testimony of those witnesses deemed most
credible, a clear case is made that ~exua!ly oriented businesses,
because of their ~nique adverse consequences~ on the surrounding
neighborhoods, require regulation in whatever way reasonable
possible to minimize those adverse consequences.
It is also the Committee's finding that based both on the
testimony and the experience of other city's, the single most
Sexually Orient~l~usi~esse~
Page 37 q~' .... ·
effective action to be taken with respect to sexually oriented
businesses is to restrict their location. Mowever, locational
restrictions by themselves are not enough; where the /aw allows,
these should be coupled with restrictions on external signage and
appearance to minimize the obtrusiveness of the sexually oriented
business wherever located. Where thanks to state law the city's
right to regulate location has been preempted, the need to
strictly regulate exterior signage and appearance becomes even
m .o~..e critical as almost the only meanin~Ydl tool left in the
m~nicipal arsenal to deal with the problems posed by sexually
or'fented businesses for the quality of Houston life.
Article XI. Age Restrictions on Entry. A .recurrent theme
in the =e'~=im6ny bef6~ ~he Committee was the effect of these
businesses upon children, which in turn would affect the quality
of life in ~ouston. One of the specific proble~'s~considered by
the Committee in this regard was the entry by minors onto the
prem/ses of such businesses. The Committee felt that barring
persons under the age of seventeen from entry onto the premises
of a sexually oriented business T-.which in this instance would
include an adult movie t~ktre~ adult bookstore or massage
esabliskment -- was a reasonable response to this concern.
Section B of Article XI, placing an affirmative duty on the '
establiment to enforce this provision seemed to the Committee to
be the simplest, most reasonable means of attaining enforcement
of this article, particularly as the alternative would be a large
number of roving inspectors, the cost of which would most likely
be borne by the establisb~nts through the permit fee.
Article XII. Restrictions on Employment of Minors. In
addit'ion to Concern about %he presence of minors in sexually
oriented businesses as customers, the Committee also received
testimony indicating that minors' might be employed in some of
these businesses, particularly the adult modeling studios. For
this reason, the Co~ittee felt .it necessary to include a
specific prohibition against the employment of persons under'the
age of seventeen in sexually oriented businesses '- .again
including adult movie theatres, adult bookstores .and massage
establishments.
Article XIII. Priority of Right. One issue raised during
the d'o~mittee's defi'berations was whether a sexually oriented
enterprise, once lawfully permitted, could lose its permit if a
school or church were to be established within 750 feet of the
enterprise, or if seventy-five per cent of the tracts of land
within the calculated circular area were to become residential in
accordance with the terms and conditions of Article V,
Section B (3) .' After substantial deliberation, the Committee
concluded that the "prior in time, prior in right" doctrine
should be consistently applied. A church or school which
kno~ingly chose its location desp£te the prior
sexually oriented commercial enterprise, were not deemed by the
Co===lttee to occupy the same status as those schools, churches
and residential areas which existed prior to the establishment of
the sexually oriented business in auestion. However, the
Committee did provide that this right to continued existence
would terminate with the expiration without timely renewal or
revocation of'the permit..
.. Article XIV. Effect on Massage Establishments.. The City of
~o~st~n already has 'one" ordinance g°vernlng massage
establishments -- Chapter 27 of .the Houston Code of Ordinances.
The provisions of this ordinance are not £ntended to supplant
that Chapter; but instead are designed to .complement its
provisions. ~f a conflict should be deemed to 'exist between
Chapter 27 and this new ordinance, however, the provisions of the
new ordiance will governl
Articles XV - XIX. Additional Provisions. Articles XV
through XIX are additional ~roviSions' deemed" necessary by the
Committee for a complete 6h~'.ef-fWctive ordinance. Article XV
sets the rules regarding notices under the ordinance; all such
notices must be sent in writing and will be considered as having'
been delivered there days after their delivery to the U.S. Mails.
Article XV% .makes violations of the ordinance a Class C
misdemeanor; .each day a violation contiKues is deemed for
purposes of the ordinance as a separate offense. Article XVII
establishes the authority of the Director of Finance and
Aministration, or his duly appointed subordinant'es, to enforce
the ordinance, if necessary by lawful entry by means of a search
warrant onto the premises of the business in question.
Article XVIII empowers the City Attorney to file suit to enforce
this ordinance. Article XIX provides that if any provision of
the ordinance should for any reason be held invalid, the
remainder of the ordinance shall continue in full force and
effect.
CONCLUSION
The Committee has attempted to show in this Report that the
new ordinance regulating sexually oriented businesses is not a
"knee J~rk" response to public complaints about such establish-
ments. Rather the ordinance is the cumulation of over one year's
work during which time citizen input was received, specific
problems were identified, various remedies were considered, and
legal contours were set. The Committee candidly acknowledges
that a more res'trictive ordinance was envisioned in the early
days of the. project, as reflected by the draft initially
propagated by the Committee. However, such a restrictive
ordinance could not be sanctioned if the Committee were to adhere
· · Sexually Ori
Page 39 ~" ' °' ~
to its goal of striking a careful balance between the rights of'
those persons who'do not wish to be exposed to sexually oriented '
businesses and the rights Of those persons who wish to ogerate or
earnestly believes'
patronize such estkblishments~ The Co.m~.ittee ...... . and tha~
that the current proposed ordinance aC~leves ~na: 9oaz, ~
the ordinance'proposed to Council represents the furthest l~gally
~efensible extent to which the city can go in the regulation of
sex3aLly oriented businesses.
AUSTIN CITY COUNCIL
MAYOR
Frank C. Cooksey
MAYOR PRO TEM
'John Trevi~o, Jr.
COUNCIL MEMBERS
Mark Rose
Smoot Ca~l-Mitchell
Sally Shipman
George Humphrey
Charles E. Urdy
Jorge Carrasco
REPORT ONADULT ORI~ED
BUSINESSES IN AUSTIN
Prepared By
Office of Land Develog~ent Services
May 19, 1986
City of Austir
ACKNGWLEDGEMENTS
This report was prepared by the Special Programs Division of the
Office of Land Development Services (OLDS), with assistance from other
city agencies.
The following staff members were involved:
Office of Land Development Services James B. Duncan, Director
Lilas Kinch, Acting Deputy Director
Marie Gaines, Assistant Director for Land Use Review
Sager A. Williams, Jr., Division Planner
Dan Drentlaw, Planner III, Project Manager
Kirk Bishop, Planner II
Stephen M. Swanke, Planner I, Primary Contributor
Je'an Page, Artist II
Monica Moten, Drafter II
Sharon McKinney, Senior Administrative Clerk
Fletcher E'ubanks, Intern
Mike Hovar, Intern
Mike Major, Intern
James K. Parks, Intern
Robin Walker, Intern
Austin Police Department
Jim Everett, Chief of Police
Joe Hidrogo, Director of Research and Planning
P.O. Kevin Behr, Administrative Assistant to the Chief
Leslie Sachanowicz, Planner Analyst
Galloway Beck, Planner Analyst
E. Gay Brown, Administrative Technician II
Karen Murray, Senior Administrative Clerk
Building Inspection Department James W. Smith, Director
Bill Cook, Manager, Neighborhood Conservation
Edward Sanchez, Acting Supervisor, General Inspections
Terry L. Meadows, Senior Inspector, General Inspections
II.
III ·
TABLE OF CONTENTS
IV.
Introduction
Su~y of Existing Research
A. Analysis of Existing Research
B. Legal Basis
Adult Oriented Businesses in Austin
A, Location of Existing Businesses.
B. Evaluation of Adult Business Impacts
C. Trade Area Characteristics
Conclusions
Appendix
Page
1
2
2
4
6
6
9
27
32
35
~ap 1
Map ~
Map ~
Map S
Map 8
Map 7
Map 9
Map 10
Map 11
Map 12
TABLE OF MAPS
Existing Adult Businesses Locations
Study Area 1
Control Area 1
study Area 2
Control Area 2
study Area 3
Control Area 3
study Area 4
Control Area 4
Adult Business Trade Area - Southside
News
Adult Business Trade Area - Cinema West
Adult Business Trade Area - Yellow Rose
7
12
13
14
.15
16
17
18
19
28
29
30
Purpose
SU~RY
This report provides the basis loc development of an amendment to the
Austin zoning'-ordinance regulating adult businesses. Austin's current
adult business zoning ordinance was permanently enjoined from being
enforced .in_.. January, 1985 when Taurus Enterprises sued over a ."Code
~-iolation Notice", issued by the City. The violation occurred because
a bookstore was located within 1000 feet of property zoned and used
loc residential proposes.
~xistin9 Research and Legal Basis
The first portion of the study examines existing research concerning
the impact of adult business on crime rate~ and property values.
Results from these studies contai~similar findings - crime rates are
higher and property values lower near adult oriented businesses.
Despite the negative impacts,
respect constitutional rights
overview of pertinent legal
provided.
regulation of adult businesses must
of owners and patrons. Therefore an
and constitutional issues is also
Existin9 Adult__Businesses in Austin
Austin has(49/adult oriented businesses, consisting primarily of
bookstores, ~aters, massage parlors, and topless bars. Generally,
these businesses are located in an area between Lamar Boulevard and
Interstate Highway 35.
Analysis of the Impacts of Adult Businesses in Austin
An analysis of crime rates was conducted by comparing areas with adult
businesses (study areas) to areas without adult businesses (control
areas).. Both control and study areas are circular in shape with a
1,000 foot radius, contain similar land uses, and are in close
proximity to one another. Four study areas were defined: tw~ with
single businesses and two with more than one business. Within the
study areas, sex-related crimes %e_[_e..fo_~9 to be from two to ~!arly
five times the city-wide avera_.ge. /Als0, se~S-~e-~-~ ~i~e-'r~es were--~
Study areas with two adult businesses~/
mpared to study areas with only. one business...~ ....
In order to assess the impact of adult businesses on property values,
questionnaires were mailed to 120 real estate appraisal and lending
firms. Eight-eight percent of those responding indicated a belief
that an adult bookstore would decrease residential property values
within one block, and 59% felt that residential property values would
decrease within three blocks. Respondents based their opinions on
several factors. They noted that adult businesses made homes less
attractive to families, thus lowering demand and property values.
Others stated that the existence of adult businesses leads mortgage
underwriters to believe that ..the neighborhood is in decline, thus
making 95% financin~ difficult.
Trade Area Characteristics -.
In order to make appropriate recon~nendations for assignment of adult ..
businesses to specific zoning districts, a study of trade area'
'--_~:~b~r._acteristics was conducted. Three adult businesses - a bookstore~.-:.:..''''''
theater and a topless bar - were examined to determine customer'~ :
addresses by an observation of vehicle license numbers. Of the 81
observations.made, only three customers had an address within one mile
of an adult business. Nearly half (44%) of all customer addresses
were located outside the City of Austin.
Reco~endations
Sfsed on the findings of this study, the following reco~endations are
made:
1. Adult businesses should be limited to highway o~ regionally
oriented zone districts.
2. Adult businesses should be
concentration of suchbusiness.
dispersed to avoid the over
3. Conditional use permits should be required for adult businesses in
certain specified zone districts,
C~-)Af~l~ I
I ~II~ODUCII {Xl '
As is the case in many large American cities, Austin has witnessed a
rapid ~ise in -the.number and type of adult entertainment businesses
9vec the past decade. -~h~e-t~nesses present a particular problem
due, in part, to the moral implications ~ssociated with such
:enterprises in the minds of many members of the co.u,~nity.
In addition, the proliferation and alleged detrimental effects of
these businesses upon surrounding neighborhoods have been the focus of
community attention for quite some time. This attention has resulted
in numerous requests for the City to regulate adult businesses.
The regulation of adult entertainment businesses is a controversial
matter. While legal and constitutional bases for municipalities to
control the use of land within their, jurisdictions in order to protect
the "public health, safety, morals, and general welfare of their
citizens" has been firmly established, the Supreme Court has upheld
the right of adult entertainment businesses to operate in the
community by virtue'of the First and Fourteenth Amendments of the
U.S. Constitution. Resolving conflicts between the legal rights of
municipal governments and those of adult business operators and
patrons has been a difficult task.
Austin enacted a "Sexually Oriented Commercial Establishments
Ordinance" on May 22, 1980. This ordinance prohibites adult
businesses from being closer than 1,000 feet from a residential use.
On October, 25, 1983, a lawsuit was filed attacking the validity of
the Ordinance. The lawsuit was filed after the Building Inspection
Department issued a "Code Violation Notice" for an adult bookstore
located at 8004 Research Blvd. This violation notice was filed because
the bookstore was located within 1,000 feet of property zoned and used
for residential pUrposes. The suit disputed the city's assertion of
harm to areas zoned and used for residential pUrposes.
On January 10, 1985, a trial was held. Because the court was unable
to make a factual finding on the validity of the City's assertion, it
permanently enjoined the City from enforcing the ordinance at that
location. The court did not declare the ordinance unconstitutional.
However, because of the precendent set by this action, Austin
currently lacks an adult business ordinance that can be effectively
enforced. Therefore, it is the.purpose of this study to objectively
evaluate the impacts of adult en~rtainment businesses on surrounding
neighborhoods and to formulate appropriate regulations based on these
f~ndings.
CHAPTER I~
SUMMARY OF EXISTING RESEARCH
This chapter presents a brief overview of existing research and
regulations written to address adult oriented businesses in various
parts of the co.untry. An understanding of the effects of adult
oriented businesses ~n-.~u~ounding properties and the legal basis for
regulations controling such businesses is critical in developing an
ordinance for Austin.
A. ANALYSIS OF EXISTING RESEARCH
Amarillo, Texas
The City of Amarillo's study, A Report on Zonin9 and Othe~ Methods of
~egulatin9 Adult Entertainment Uses in Amarillo, concluded that
entertainment uses are distinguishable from other businesses in that
they have negative impacts on surrounding land uses. The study'
established a relationship between high crime rates and proximity to
adult businesses. Furthermore, the study found that the late operating
hours of most adult businesses created special problems to surrounding
neighborhoods in the form of noise, glare, and traffic.
Beaumont, ~exas
A planning department study done for the Charlton-Pollard Neighborhood
in Beaumont, Texas investigated the effect of adult businesses on
economic decline and crime. The study concluded that the
concentration, of adult businesses drove away neighborhood co~uercial
stores and contributed to an increase in crimes such as prostitution,
drug use, and muggings.
Indianapolis, Indiana
In February, 1984, the Division of Planning in Indianapolis published
a report titled Adult Entertainment Businesses in Indianapolis: An
Analysis. This report contained the results of an evaluation of the
impact of adult business upon surrounding areas in terms of crime
rates and real estate values. The study assessed the impact of adult
entertainment businesses on crime rates by researching six areas
containing adult businesses and six similar areas containing no adult
businesses. A comparison of these areas revealed that sex-related
crime rates were 77 percent higher in areas containing adult
businesses.
~e second portion of the study evaluated the impact of adult
bu:~inesses on real estate values by surveying professional real estate
a[~raisers. Two surveys wcre conducted. The first surveyed opinions
of members of.. the American Institute of Real Estate Appraisers
practicing in 22 metropolitan areas similar in size to Indianapolis,
The second survey was a 20% random sample of AIREAmembers drawn at a
national level. In the metropolitan area survey, 78% of those
surveyed felt that residential property values would decrease if
located within one block of an adult business. The national survey
generated similar results - 80% of those surveyed felt residential
property values would decrease if located within a block of an adult
business.
Los Angeles, California
The Department of City Planning for Los Angeles published a report in
June, 1977 entitled Study of the'Effects of the Concentration of
Adult Entertainment Establishments in the City of Los Angeles. An
evaluation of the impact of adult businesses on both crime rates and
property values was conducted. Crime rates were evaluated by
comparing the Hollywood area with the remainder of the city.
Hollywood was selected as a study area because of its high
concentration of adult businesses.. The study focused on the years
I969 to 1975, during which the number of adult businesses increased
from 11 to 88 establishments. The study indicated that prostitution
arrests in the Hollywood area were 15 times greater than the city
average·
Like the Indianapolis report, the Los Angeles study surveyed real
estate appraisers to assess the impact of adult businesses on property
values. Over 90% of those surveyed felt that the concentration of
adult businesses would decrease the market.value of private residences
located within 1000 feet of the adult business. EightY-seven percent
indicated that the concentration of adult businesses would decrease
the market value of business property located in the vicinity of such
establishments.
Los Angeles County, California
In April, 1978, the Department of Regional Planning of the County of
Los Angeles published a study entitled Adult Entertainment Study and
Proposed Zoning Ordinance Amendment. In .the study, law enforcement
officers were surveyed. Responses from the surveys indicated that
areas with a concentration of adult businesses have a higher incidence
of public intoxication, theft, assault, disturbing the peace, and
sex-related vice. Respondents indicated that nude bars, modeling
studios, and massage parlors caused the most individual problems.
~h__oenix, Arizona
~e City of Phoenix study investigated the incidence of crime by.
comparing three study areas containing adult businesses with three
control areas without adult businesses. They concluded that crimes
were 43.percent higher, violent crimes were 4 percent higher, and sex
related crimes were over 500 percent higher in the study areas.
Stj Paul Minnesota
The planning department in St. Paul conducted a study entitled Effects
on Surrounding Area of Adult Entertainment Businesses. The study
found that there was a statistically significant correlation between
diminished housing values and crime rates and the location ~f adult
businesses. The study also concluded that there was a stronger
correlation with neighborhood deterioration after the establishment of
an adult business.
B. LEGAL BASIS
Regulation of adult businesses has taken a variety of forms in cities
throughout America. Boston, Massachusetts, for example, has adopted
an ordinance that restricts all adult businesses to a single
geographic area known as the "Combat Zone". Detroit, Michigan,on the
other hand, enacted 'an ordinance intended to disperse adult
businesses. This ordinance, passed in 1972, prohibited adult
entertainment businesses within 500 feet of a residential area or
within 1000 feet of any.two other regulated uses. The term "regulated
use" applied to a variety of businesses, including adult theaters,
adult bookstores, cabarets, bars, taxi dance halls, and hotels. At
this time, only Seattle and Renton, washington have ordinances similar
in nature -to the Boston ordinance. However, several cities have
adopted regulations similar to those enacted in Detroit, which are
aimed at dispersing adult entertainment businesses.
The Detroit ordinance was legally challenged and ultimately upheld by
the United States Supreme Court in 1976. This court case, known as
Youn9 -v- American Mini Theaters, Inc., now serves as the primary
legal precedent regarding the use of zoning powers to regulate adult
entertainment business. In Young, the Supreme Court held that "even
though the First Amendment protects communication in this area
(sexually explicit activities) from total suppression, we hold the
State may legitimately use the content of these materials as a basis
for placing them in a different classification from other movie
rhea te r s "' .
1. McClendon, Bruce W.; Zoning for Adults Only, (zoning news;
American Planning A~sociation, August, 1985).
inion for this court case set out three First
· l'he lurality op ....... ~' n adult entertainment
t~end~ent criteria that ordinances ~=~T~l~?onall- u-held.
businesses must satisfy in order to be Constltuti Y
i. Regulations must be motivated not because of a distaste for the
speech itself, but by a desire to eliminate its adverse effects.
:2. Properly motivated legislation may be unconstitutio~'i
severey restricts First Amendment ri9hts-
3. A properly motivated ordinance with only a limited impact on free
expression may be unconstitutional if the municipality cannot
demonstrate an adequate factual basis for its conclusion that the
ordinance will accomplis~ its object of eliminating the adverse
effect of adult businesses · -
The limitations established by th~ criteria are best illustrated by
analysis ~f the invalidation of Atlanta, Georgia's Adult Entertainment
Ordinance This ordinance prohibited adult entertainment businesses
from locating within 1,000 feet of any'other such use, within 500 feet
· zoninq district, or within 500 feet of any church
of any residential - - .... The ordinance also restricted
. r religious worship.
or place used fo - · ........ ~- ~hree zonin~ districts. The
all ne~ adult entertainment Dus~ne~ ~ ~
Atlanta ordinance further required the amortization of certain
existing businesses.
Although factual evidence was presented in support of Atlanta's
nce the U.S Supreme Court found that the ordinance violated
ordina , ' .t ......... The Court first found evidence
the first two c .... d_ --~inance Minutes of a zoning
of an improper motive in enacting %n~ u~ ·
review board meet'ng indicated that the board would help citizens
he c~nduct of adult businesses to "zone them out of
?pp?sed_.to tAt the meeting an assistant city attorney ~nd~.~
D~slness · __~: ..... ~=~ ~h, "strongest vehicle towar~
t~e proposed o~ui-~,,~
inesses and the city was "hoping for complete eradication"
of these bus' - .... ,-- '~ .... d that the locational
of adult businesses. . The court ~x~? .~'
· ' s of the ordinance would significantly reduce and possibly
r~t~lc?on_.=~:_ access to adult businesses. The cour~ h~d. ruled.l~
ellmlna~ ,p~,_i~u ___~ .... ;n-" is constitutional o~ly if the m~.rKe~
~oung~at__?~rn?~aP~ ~;~e~tially unrestralned''~' The ~ocat~o~
rot ~n~ uu,~,,~,~z _ : . ' nts in Atlanta were ~eemeG
· ' and amortxzation requ~reme .
restrlctlons .... :__ -n the First Amendment rights of adult
severe a res~ric~xun
businesses.
2. Weinstein, Alan; Regulating Pornography: Recent Legal Trends;
(Land Use Law; February, ~982;) p.4
3. ibid. p.4
4. ibid. p.4
CHAPTER III
~){JLT ORIENTED BUSINESSES IN AUSTIN
A. L~TION OF EXISTING BUSINESS
There were 49 adult-oriented businesses located within th~.~orporate
li~mits of 'the Austin as of January 1, 1986. These businesses have
been grouped into two major types of businesses: Adult Entertainment
Businesses and Adult Service Business. Adult Entertainment Businesses
consist of adult bookstores, theaters, and film stores. Adult Service
Businesses consist of massage parlors, nude modeling studios, and
topless/bottomless bars or clubs. Adult Entertainment Businesses must
be carefully regulated due to their constitutionally protected status
as an ~xpression. of free speech.
The classification of these businesses is difficult, particularly in
the case of Adult Entertainment Businesses, since many of these are
involved in the selling of printed material as well as novelty items,
and the showing of peep shows. For'the purposes of this study,
businesses listed as bookstoces include a substantial poction of the
business involved in the selling of printed material, but may include
the distribution of novelty items, Showing of peep shows, and other
related forms of adult entertainment. Any business that exhibits
adult films on a single' screen with 100 seats was classified as an
adult theater even through it may offe~ adult video tapes or films for
sale.
Table 1 lists the names and locations of the 49 existing Adult
Entertainment businesses in Austin. Map 1 depicts the locations of
these in the City of Austin. As shown on this maP, 21 of the 49
existing businesses are nOt located within 1000 feet of another adult
business. Of the remaining 28 businesses, there ace eight groups of
.two businesses, one group of' three businesses, one group of four
businesses, and one group of five businesses. The locational pattern
illustrated on Map 1 indicates a propensity for adult businesses to
locate along the major north/south roadways or on major east/west
roadways between Lamar Blvd and IH35.
Existing Ad~t Boalneaa Locatlorm ~L___
AT Adult Theater
B~ Adutt
F~ Aclu~ Flimalo~'e
MP Maaa&oe Pm'lo~'
TC Tooleae Ctub or Nude k4odellnO
Studio
N·
Table 1
Existing Adult Businesses
Austin, Texas
January 1, 1986
Adult Entertainment Businesses
Adult Bookstores
i. Adult Theater
2. Mr. Video
3. River City Newsstand
4. River City Newsstand
5. Video Barn
6. Southside News
7. The Pleasure Shop
8. Oasis Adult Book Store
9. Ms. Video
10. Sixth Street News
Adult Theaters
1. Cinema West Theater
2. Texas Adult Theater
Adult Film Stores
I. Video Barn
2. Video Barn
3. Video Barn
4. Video Barn
5. Video Barn
6. Video Etc.
Adult Service Businesses
Massage Parlors'
1. Ann's Massage Clinic
2. Body Works, Inc.
3. Fantastic Oriental Massage
4. Fantasy Massage
5. I Dream of Jeanie
6. La Fen~ne
7. Michelle's Massage
8. Midnight Cowboy Oriental
9. Oriental House of Massage
10. Pandora's
11. Relaxation Plus Massage
12. Relaxation Plus Massage
13. Sat{.n Spa
14. Tokyo Spa
3401-A- North IH35'
1910 Guadalupe St'.
613 West 29th St.
8004 Research Blvd.
615 West 29th St.
2053 South Lamar Blvd.
603 West Oltorf St.
8601 North IH 35
718 Red River St.
706 East 6th St.
2130 South Congress Ave.
2224 Guadalupe St.
5726 Burner Rd.
708 East 6th St.
9640 North Lamar Blvd.
2055 South Lamar Blvd.
512 West Stassney Lane
5610 North Lamar Blvd.
1406 South Lamar Blvd.
2906 San Gabriel St.
1104 West. Koenig Lane
5520 North Lamar Blvd.
4406 North Lamar Blvd.
3502 North IH 35
403 East Ben White Blvd.
313 East 6th St.
3007 No~th IH 35
631 West Ben White Blvd.
2716 Guadalupe St.
612 Nueces St.
6735 U.S. 290 East
9601 North IH 35 #104
15. Vickie's Massage, 3004 Guadalupe St.
16. Silk Lady Massage 92 East Ave.
17. New Seoul Korean Massage 8312 South Congress
18. The Casbah 9401-B South IH-35
19. The Chateau------- 9401,B South IH-35
..20. Singletons Massage ....... --~.-1410 Ulit
Topless Clubs and Nude Modeling Studios
1. The Crazy Lady
2. The Doll House
3. The Red Rose
4. Honey's
5. Sugar's
6. The Yellow Rose
7. Ladies of the Eighties
8. Adams Nude Modeling Resort
9. French Quarter
10. Burlesque Modeling Studio
11. Pearls Place
3701 North IH35
3615 South Congress
336 East Ben White Blvd.
629 West Ben White Blvd.
404 Highland Mall Blvd.
6528-North Lama[ Blvd.
23U4 South Lama[ Blvd.
1023 Reinli St.
10600 Middle Fiskville Rd.
4912 No[th IH35
4814 North IH35
B. EVALUATION OF ADULT BUSINESS IMPACTS
In order to develop appropriate recommendations for regulating adult
businesses, it is essential to assess the impact of such businesses on
the neighborhoods that surround them. Research conducted in other
cities suggests that adult businesses have a detrimental effect on the
incidence of crime and property value. This report will assess the
impact of adult businesses in Austin by comparing the incidence of
crime in areas surrounding adult businesses to similar areas having no
adult businesses and by surveying the opinions of real estate
professionals concerning the effect of adult businesses on property
values. The methodology used in this research is similar to those
used in the Indianapolis, Indiana and Los Angeles, California studies.
For a more detailed discussion of the methodology and results of these
studies, see. Appendix A.
Incidence of Crime
Methodology. The effect of adult businesses on the incidence of crime
was measured by collecting crime data for areas with adult businesses
(Study Areas) and comparing them to similar areas having no adult
businesses (Control Areas). : This evaluation focuses on three
questions. First, is the incidence of crime, particularly sexually
related crime, higher in areas .surrounding adult business sites than
in similar areas Without adult, business sites? Second, is the
incidence of crime, particularly sexually related crime, higher in
areas having more than one adult business than ia areas having a
single adult business? Finally, how does the incidence of crime in
these areas compare to crime rates for the City of Austin as a whole?
· This study collected data for 45 serious criminal offenses, termed
Part 1 Crimes by the Uniform Crime Report, and 21 sexually related
criminal offenses. These offenses are detailed in ADpendix S. The
data collected ~ represents calls to the Austin Police Department from
January 1, ~96~hrough December 31, 1985. Crime rates are expressed
as~he number of report~d-~r~Fidents per 1000 a~ea residents.
Selection of Study and Control Areas. The selection of appropriate
study and control areas was a crucial' element in the objective
assessment of the impact of adult businesses on the incidence of
crime. Study Areas containing adult business sites were Carefully
selected to be representative of the adult businesses existing in the
Austin area.
' Four study areas were selected. Study Area One includes two
businesses, a modeling studio and a topless club. Study Area Two also
includes two businesses, an adult bookstore and an adult oriented film
rental store. Study Areas Three and Four contain single businesses,
an adult bookstore and topless bar, respectively.
Table 2
Study Area Businesses
Study Area 1
Burlesque Modeling Studio
Pearls Place
4912 N. IH-35
4814 N. IH-35
Study Area 2
Southside News
Video Barn
2053 S. Lamar
2055 S. Lamar
Study Area 3
The Pleasure Shoppe
610 W. Oltorf
Study Area 4
The Yellow Rose
6528 N. Lamar Blvd
As noted, two of the Study Areas contain one, and the others each
contain two, adult businesses. A/though two adult businesses does not
reflect the highest concentration of .adult businesses located in
Austin, this level of concentration is more representative of existing
locational patterns in the City. Those areas containing more than two
adult businesses were examined and found unsuitable for this
evaluation.
'the highest concentration of adult businesses is located just west of
the University of Texas campus along West 29th Street. This area was
considered unsuitable because the transient population associated with
the .University of Texas might unduly influence the ~esults of the
evaluation. The concentration of adult businesses existing in the
Central Business district, was.-dee~d unsuitable for study due to the
~:lack of residential uses in the a~ea~ --Three adult businesses are
located along IH-35 near its intersection with East 38 1/2 Street.-
This area was not selected because a large portion of the Study Area
is occupied by Concordia Lutheran College, and a suitable control area
with similar land uses was difficult to define.
In order to draw valid comparisons, the Control Areas w~re selected
according to their proximity and similarity to the Study Areas Four
Control Areas were selected for comparison to the four study areas.
MF-4
MAP 2
STUDY AREA
,/
t. IUNIC
LAND USE LEGEND
'\
I
Single Family c
Mulll Family
Commercial \,,.
Office "¢
Industrial
Public ,
Park
Vacant Land -
Adull Business
Site
MAP 3
CONTROL AREA
1
CS
LAND USE LEGEND
[ ] Single Family
J ......... '] Mulli Family
~ Commercial
I, ~ Office
~ Induslrial
[- · Public
["----- J Park
I 1 Vacan! Lend
' ~ ' "' ' .'7'/- "<.'-':.-~
':< (
C
..¥
MAP 4
STUDY AREA 2
D
$F'3
LAND USE LEGEND
I
[ --I
f --!
I
,I
I
Single Family
Multi Family '"
Commercial
Office
Indu~strlal
Public :'
Park /
Vacant Land
:
. Adult Buslneaa '
Site
MAP 5
CONTROL AREA 2
· ~ - . . ,- ... ~% ,",..
· .,...I. _l ~ \.\<x '-"~ ~,-"x';, ,:',..",- :-';'-" · j' ' .... '
n."'" - % ' /' '"~ .'~SF'2 ."
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' ~ ' ~ ,~ . .o . ,~,,. %.~..
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GR I ~.. ,.T-SF-
· I
~ /MF-3
/ 7''/LR ~ MF
8cah~ In
o 2oo
! t)
:'°': 7.
t / //<.f:..-4.c 7"
LAND USE LEGEND
I
Single Family
Multi Family
Commercial
Office
Industrial
Public
Park
Vacant Land
C
_R
MaP 6
STUDY AREA
'~.'- "~"~-/ /~' '· "
....'- . , /.../.'"...
, -.. -?.,:.:.. -~--.~ / ~
,'- '..'7 ;Z
/
jo
,¥ -:/
~,. SF'3.
s
3
,SF-3
LAND USE LEGEND
I
r J
i
r
Single Family
Mulll Family
Commercial
Olflce
Induatrlal
Public
Park
Vacant Land
Adult Buainea8
Site
-~ ..:~ .' / ~,o
.0
SF'~
4L~
':(b'" MAP...7,.
O'NTI~OL' AREA 3
MF-2
LAND USE LEGEND
Single Family
Plulli Family
Commercial
Office
Induslrial
Public
Park
Vacan! Land
-~, .~.-. = -- ~..- ~, -;, ,
C
MAP 8
...... S,TUDY AREA 4
2'.( "'"' /
LAND US
I
I J
! 1
I
E LEGEND
Single Family '-
Idulll F~mily
Commercial
Office
o
Induelrial '
Public
Park
Vacant Land
/
Adult Bu~ineaa
MAP 9
CONTROL AREA 4
-. .,', · . · /" ,, ?-'.->_-. / ,' '~ ' !I ,' f' "~ '.'. ~'.' ',, "'
' '" "' " ' '' ' " ' ' ''"""*" ~,~:" ~I' ~ · ".°' ' "' ' ~ '
, ".: , .' .... - ..... J. . . ~.- /, // ,' ' ' 1, ~.-- .
· · , '; .. ., . /' t · :' · 0 / ~,l:. "'"~ ' "/ ~' ,.. '.: '.
· , /.,·o ./.. .. I _ .,.,£.1///,.. // ~ ~_
· ,, .//,: ~ .:~..: ~ -,. .' ' , '..: / I r, C l 17 / ~' // f ""'-, ' '..
;. ~.,. , ' · ,C~ ~.-& '.~ / c. / ~) l .,'~ / / , / ~
.._ ~ ' ,' *..~ -- ,..J '~ ! , /I, : Il' ,'1 ."'
· .' '.. ..~'/ ' ,L / .l~' "' "/ !
/.' ' f"' CS
/./ ' ,. .... ,.
~:'.. · .. !
LAND USE LEGEND
I
Single Family
Mulli Family -.
Commercial "
Office i
Industrial
Public
Park
Vacant Land
-.. / / ..' .:~
,..,:; w,:,,: ,.:~.,,,,i~d*~'~'~,'len[[[y's[~,~[acL~Ld~. 'llmy ail are cJr*c~Zac
· ,,i I,~r [.,t.tl.~l i,)n and la[,I use rharactecL~tLcs. 'll~e [~L)Utation
,l~.tL,,CteL'L:;tic~ rjE eac:h aLeO WULe analyzed usinq block dora [tom the
'1~;1~1,~; I, -1, ~,, ,u,! 6. l.an, I us~ ~'haLacter istics are SU~su~L'ized in
'~ ,l~-~ ~, fl, q /.,I In.
'['nhl e 1
^C'(:a [
Po[)~lla t ion CI]~(L aclu,' i st, i cs
[::t' hn i c [ ty
Anqto
Black
Study Control
69.8 68.0
7.9 10.4
21 .$ 21.5
0.8 0. [
l:,J(: (,:OraL)OS i I:.i r;ll
· . tJndec 18
'~ 18 to 64
'; 65 a,l(J over'
I.] .0 19.6
flO.O 72.7
9.0 7.5
O-'U(.' t' Occ%l[kfflcy
17.5 25.5
'['ahl e 4
Acea 2
eo[-,u t a t i on Cha cactet' i st i cs
t~thnic[ty
S t~ld,/ Cont t'ol
Anglo
Black
llispanic
60.9 75.2
4.4 6.2
33.5 10.0
1.2 0.5
Age Con,pos i t i on
% Unde~ lO
18 to 64
65 and over
24.0 20.0
62.5 71.2
~3.5 8.0
% O.me ~ Occupancy
34.7 26.7
t I,'i q.l,fl
I.'. I 2. ,1
6.1. I. ,12. II
6. t
U~,.le r
O,,.n ~e r O¢cutwul,'y
411.1 25. L
5t .6 6').r,
n. 3 ]
27.9 ,lB .9
"i'al.~ [,: 6
A~ ,:a 4
t"o[..~ I at ion ¢'1 k'~ cncl'e t' [nt: i ,:.~
t::t Imi cjt¥
,';L,s, ly Cullt L,.,[
OLhr'L'
:', j.: C',J,,,i,us/Lion
't'ol)Le 7
Area 1
£xistLu,j [.a,,,'l Use
in acres!
S Lu, ly
CoI'~ t t '] [
Single Family
rlulti-Family
C,)lflme [ C i a l
t,ffice
! n,.lust t iai
t', ,bl i c
rn r k I and
Vacaftt
Roads
1'1.1
3.0
il .9
0.3
3.9
1.6
37.3
L8.9
1.5
2.2
4.4
0.7
-' ,qLudy
'~,.lle t";u.i ty 22.2
·: ,m:,. I ,' i, ~ I .'.'~ {. Z
'.' f I, ~: Ii.IT
Pat k land -
Vacant 5. t
&/ads 18.0
Con?t'o]
o. - 24.6
4.7
23.3
2.0
17.5
'['al)le 9
At cas 3
Existing f.ai~d USe
(in actu:;)
S t ucl y
Contcot
~ingle rami]y
/1,,lLi-Fami ly
('t ,nmle r c i a ~
,.~[i¢e
I nclust [ ia l
i',lJi]
Pack I and
19.0
7.2
7.2
0.1
9.3
6.6
8.0
L4.7
34.2
9.6
5.6
0.4
8.2
4.2
').'9
'Cal~]e lO
A t'e/.~s 4
Existing Land Use
( in acres)
Study Cont
Single Family 25.1 22.7
t-lul t }.- Fa,nj ly 2.3 4.9
Corn,m. t rial 26.6 15.8
Offi;-e 1.1 5.1
[ u, ~u-;t.%' ial - 2.3
Publ ic - 0.4
Pa rk land - -
Vacant 1.6 3.7
Roads 15.4 17.2
Resu 1 ts'
The crime rates calculated for each St,,cl~) and Control Area and for' the
c~ty at lat'ge at'e indicated in Table [1.
Table 11
Average Annual Crime Rates
(per 1000 population)
Part 1 Ct'tree Rate
Sex Related Crime Rate
Study Area
Cont t ol Area
101.82
320.65
0.72
2.17
Stu~]y Area 2
Contcol Area
552.54
96.69
13.56
2.48
Study Area 3
Control Area 3
128.59
69.60
4.97
2.37
Study A~ea 4
Control Area 4
185.77
133.41
.91
.84
City of Austin
83.14
2.81
All Control Areas
132.23
2.21
23
.'.. ,l¥:;in of 'rnhle 11 ,'eveals a definite patteL'n concerning sex-related
, - i,,,: L'ates. Sex 'related c~imes ~ates in Control Areas aL'e
,.,,,nit;lenity low, ~anging from 65% to 80% of the city-wide average.
i,~ cot~tt'aut, sex related c,'ime rates in the Study Areas are
· .,,I,stantially'J~igher than the city-wide average, ranging from 17'7% to
,li12% higher.
%'l,e sex related crime rates for Study Areas 1 and 2, which each
to, lain two mhtlt bu-':iness sites, are higher than those in Study Areas
J and 4, which each contain one adult business site. Table 12
,,,~snlidatus the c~ime t'ates for Study Areas 1 and 2 and Study A.~eas 3
~,~l~l 4. This analysis indicates Lhat the sex related crime rate in
aLeas having more than one adult business .site is 66 percent higher
than in areas having only one adult business site.
Tab~ 12
Combined Average Annual Crime Rates
Part I Crime'Rate Sex Related Crime Rate
St~dy Areas 1 & 2
Control Areas I & 2
2~t.42 10.02
193.43 2.35
Study Areas 3 & 4
Control Areas 3 & 4
159.70 6.02
97.44 2.21
Real Estate Im~_a_Fts-
H.et.hodolo3y.. In an effort to assess the impacts of adult
ent.ertainment businesses on property values in Austin, a survey of the
opinions of real estate professionals was conducted. A three-part
questionnaire was designed to gauge the opinion of real estate
,,[)praisers and lenders in the Austin area regarding the effect that an
.,~lult entertainment business would Jlave on surrounding property
va lues.
The first part asked respondents to indicate the effect of one adult
l,nokstore on residential and commercial properties located within one
block and three blocks of the bookstore. ~]e second part of the
survey asked respondents to guage the effect on residential property
values within one block for a variety of commercial uses other than an
adult bookstore. The third part of the survey asked questions
designed to estimate the degree to which property values are affected
I,y adult businesses, and to establish the basis for the appraisers'
opinions. A sample questionnaire is included in Appendix D.
Results. The questionnaire was mailed to 120 firms listed in the
~outhwestern Bell Yellow Pages under "real estate appraisers" and
"t'eal estate lenders". The Office of Land Development Services
received 54 responses; a response rate of 45 pe_rcent. The responses
to the questionnaire concerning the effect of adult businesses on
property values are tabulated in Table 13. Table 14 stunmari:es the
results of the questionnaire regarding the effect of other con~nercial
uses on oroDe~t¥ values.
Tahlp 1]
The Effect of Adult B~,,;inesses on
Property Values in Austin, Texas
O{~e Block Radius
12%
Decrease Decrease Decrease
1 to 10% 10 to 20% 20% or more
]1% 26% 31%
O.,,,tw~rcial Prul~uLty
O~e Block Radius
31% 30% 33%. 6%
Residential Property
7'h~ee Block Radius
41% 28% 26% 5%
Co,~,ercia t Property
Tlu. ee Block 'Radius
59% 30% 9% 2%
Tl~e tabulated tenponses iu 'rnl,le t3 indicate that a substantial ,~%jority (88%)
of those surveyed 'felt that a~ adult book store would have a ~egative effect
on {esidential p[operty located within one block. Of these, 31 percent felt
t]~at value would decrease by mo['e than 20 percent. A majority (69%) felt that
the value of comme['cial property withiu one block of the bookstore site would
be ,~egatively affected. Ouly 6 pe['ce~t felt, ~owever, t]~at the decline in
value would be greater than 20 pe['cent.
:.il,en the distance from the adult bookstore is increased, the negative impact
o,i propeL'ty values appears to. be less severe, while a majority of respondents
{59%) indicated that~residential property located three blocks from the
b,u)kstore would decline in value, only 5 percent felt the decline would be
,,tearer tllan 20 pe[ce~t and over 40 percent felt that the~e would be no chan~.e
~,, value at tllis distance. The majority of ['espondents (59%) felt that tllere
~uld be no cha,%ge in value of commercial property located th['ee blocks f[em
tile adult bookstore site.
.1
Table 14
The Effect of Commercial Businesses on
Residential Property Values in Austin, Texas
M~lch Snme~ha-t- About Somewhat Much
......................... l/i. 91!.e_{___/!.~U~t_e.r- The Same Lower Lower
t',,ol IIall
We l fat'e Office
Neighborhood Tavern
Record Store
Medical Office
Branch' .Library
D[ug Rehabilitation
Ice Cream Parlo~
Video Game Parlor
A~lult Video Arcade
qop[ess Bar
Massage Parlor
Adult Theater
2% 16% 5R% 24%
-- 2% 39% 45%
-- 4% 36% 45%
-- 9% 38% 34%
-- 26% 61% 11%
18% -. 36% 41% 6%
21% ~ 40% 33% 6%
-- 2% 22% 48%
6% 42% 46% 6%
-- 16% 53% 31%
-- 4% 27% 28%
.... 19% 23%
.... 19% 23%
.... 23% 21%
15%
21%
2%
28%
42%
58%
58%
56%
Tl~e survey also asked respondents to indicate the effect on
~esidential property values if the site was used for something other
than an adult bookstore. As indicated in Table i4, the majority felt
that property values would be higher if the site were used as a
medical office or branch library. They indicated that residential
[)~'operty values would be reduced if the site was used as a pool hall,
~avern, welfare office, drug rehabilitation center, or another type of
adult entertainment business.
Causes of _pt'op_erty value Decline..The real estate professionals were
~sked to describe the effect of adult bti$inesses on property values in
general and the basis for their opinions. These questions are
important because they help establish why property values are affected
I~y adult businesses.
/'he respondents based their opinions on several factors. They noted
that the type of clientele attracted by adult businesses create
concerns among families with children. Several noted that residential
I~roperties in close proximity to adult business .sites are no longer
suitable as homes for families with children. This eliminates a la[ge
portion of the market, lowering demand, which in turn decreases the
n~rket value of the property. It was also noted that the existence of
adult business facilities leads mortgage unde~rite~s to believe that
the general neighborhood is in decline. Therefcre, they would be less
willing to make 90 to 95% financing available for these properties.
$..'. '.~! rc:sl,,,,,l,'t~t?, indicate,! that "p~ i,le ,,f owl~ership" has
~'"l" :tant int]uence on ptopet'ty values. Wl~en [,,raLlies ate e~c~ut~ged
~., ,.-nye a ~e~identiai a~ea o~ discouraged from locating in a
[,a~ ~,:ula~ at~.a due to the existence of an adult bus[ness nea~'by, a
t~a~,.iLion f~um a family-ot'iented, o~e~'-occup[ed neigh~tlto~J to a
mo~e transient, ~entec-occupied neitjl~rho~l may result. 'll~is trend
is ,einfocced hy the reluctance of ~eal estate te~d~rs-to ~ke 90 to
95~:financing available fo~ residential properties in the
witl, regard to tl~e effect on co~ercial pr~pnrties, res~ndents
cum,,,..~Led that co,,meccial property values were ~egativelY impacted but
to a iesse~ degree than ~'esidential properties. It was als. o noted
that the impact of a single adult entertainment .business would be less
severe than the impact resulting from a concentration of businesses.
Other rodents indicated a negative impact on the sales of businesses
engaged in neighbocho~ trade.. One ces~ndent con~ented that adult
entertai~ent businesses tend to drive out residential o~ co~ercial
uses.
Those respondents who indicated little or no change in property valUes
cited several reasons for their opinions. Several commented that
adult businesses locate in areas wl~ere property values are already in
decline. One comment noted that co,~nercial p~'operties 'would
experience very little effect because most .commercial properties are
enctu~bered by long term leases. ;~%other respondent stated that there
is no market evidence that values will change.
summary, most appraisers and lenders believe that adult businesses
· contribute to a decrease in surrounding property values,
pa~'ticularly residential properties within a one block radius. Tile
a?[~t'otsers opinions will affect property valums [xecause their lending
appraisal policies will, to some extent, determine property value.
C. 'I~{ADE AREA CiUXRACTERISTICS
Tl~e use of zoning authority to regulate tile locations of adult
businesses implies that these businesses will be limited to certain
ron~ng districts. In order to make appropriate recommendations for
assignment of these businesses to specific zoning districts, an
u~derstanding, of their trade area characteristics is important.
Soec~fically, it is useful to know if a substantia!~portion of the
adult businesses clientele is drawn from the immediate neighborhood or
frcm a larger regional area.
~ethodology
In order to establish the extent of an adult business trade area, a
method of determining the location of customer residences must be
employed. The method selected for this evaluation was the observation
of vehicle license numbers. It was assumed that addresses listed on
the vehicle registration reflected the loca~cn of the customers
residence.
: t
MAP 10
Adult I~slr~ss Trnde Aren
Soulh~tde Naw~ 2053 So. Lamar Blvd.
Ou! o! Town Business Patrons
~ryao. T~
· SmtchvL~l., ~
· Houacon, TX
· K&cy. TX
J I
I
r~::) 11
CINEMA WEST 2 130 SOUTH CONGRESS
Aultln Area BuBInesI Palron
Out Of Town B~jsinea,, Patrona
----,.,..~ --~/- t
~0
MAP 12
~, YELLOW ROSE 8528 NO. LAMAFI
· Austin Area Business Patron
Out O! Town Bullnesm Patrons
Three adul~ business sites w~re examined; an adult theater, an adult
bookstore,, and a topless bar. Due to study constraints, observation
of these sites was limited to a single weekend night. It is believed,
however, that the results of this examination reflect a reasonably
accurate representation of the trade area of each business.
Results ·
The general location of customer residences was plotted on a map along
with the location of the observed adult business. Addresses located
outside of the Austin area or not found on the map are listed on the
map iegend. Maps 10,ii, and I2 illustrate the residences of observed
customers with ~espect to the adult business surveyed.
These. maps indicate that the location of customers is fairly evenly
distributed throughout the City, particularly in the case of the
topless club, (Map 12). None of the three businesses observed appear
to attract a significant number of customers from the immediate
neighborhood. Of the 81 observations made only 3 ~re located within
a one mile radius of the adult business. It should be noted that all
of the adult businesses studied had single-f~mily-residential
neighborhoods in the i~nediate vicinity.
Almost half (44 percent) of the observed customers resided outside of
the City of Austin. Table 15 summarizes this analysis for each of the
adult businesses.
Table 15
Residence of Observed Customers
Adult Theater Adult Bookstore
Topless Bar
Within Austin
Outside of Austin
8 4 34
6 7 23
Total 14 11 57
CHAIR IV
CONC LUS I
RATES
The results of this study indicate that there can be significant
detrimental impacts on neig[~borhoods located near adult businesses.
An analysis of sex-related crime rates in areas with adult businesses
(Study Areas) revealed rates approximately two to five times higher
than city-wide averages. Control Areas, which contain no adult
businesses but have similar locations 'and land uses as the Study
Areas, were found to have sex related crime rates approximately the
same as city-wide rates. Moreover, sex-related crime rates in Study
Areas with more than one adult business w_~ere found to be 66% higher
than Study Areas with one adult business ....
B. PROPERTY VALUES'
The results of the assessment of the impact of adult businesses on
property values suggests that there may be a severe decline in
residential property values located within one block of an adult
business site. There is an indication, based on the subjective
opinions of real estate appraisers and lenders, that the introduction
of an adult business into an area adjacent to family-oriented, owner-
occupied residential neighborhoods may precipitate a transition to a
more transient, renter-occupied neighborhood. The results of the
survey of appraisers and lenders closely parallels the results of a
similar survey conducted in Los Angeles, California and nationwide
surveys conducted by the Division of Planning in Indianapolis,
Indiana.
C.' TRADE AREA CHARACTERISTICS
The analysis of the trade area characteristics of the adult business
sites indicates that these businesses draw a substantial portion of
their clientele from outside the immediate a[ea in which they are
located, and a sizable percentage of their clientele appear to reside
outside the Austin area. From a land use standpoint, these businesses
exhibit characteristics similar to other regionally oriented
co~nercial service businesses.
D. RE~TIONS
Zone District~
The analysis of the trade area characteristics of adult businesses
revealed that they tended to attract a regional rather than local
clientle. This finding suggests that such uses should be restricted to
regionally oriented commercial zone districts. These districts are
usually located along heavily traveled streets such as arterials and
interstate highways, and are not normally near single-family
neighborhoods. Commercial zone districts that are designed for a
regional o[ientation include CBD, DMU, ~{, CS and CS-1 and to a lesser
extent, the GR, L, MI, and LI zone districts.
'r[,c assignnment of proper zone districts must also consider the type of
ach.'~ t business. Adult Entertainment Businesses, ( including
L~,,.~stores, theaters, and film stores)'represent a form of free speech
which is protected by the First Amendment. Regulation of these uses
must not unduly_~.estrict freedom of speech. Adult Service Businesses,
such as massage parlo[s_.and modeling studios, are not as sensitive to
FiJ~t Amendment issues.
Adult Entertainment Businesses are recommended in the GR, L, CBD, DMU,
CS, CS-l, CH, MI, and LI zone districts and Adult Service Business are
recon~nended in the L, CBD, DMU, CS, CS-l, and CH zone dkstricts.
Conditional Use Permits
The conditional use permit process offers a viable method of
regulating adult businesses by providing an extra degree of review
needed to address the potential impacts adult businesses generate to
surrounding neighborhoods. Unlike traditional zone district
regulations, conditional use permits require site plan review, thus
affording additional analysis and control.
Austin's current zoning ordinance prohibits adult businesses from
locating within 1000 feet of any property zoned or used as
residential. This provision led to the invalidation of the ordinance
in the suit initiated by Taurus Enterprises because it was found that
almost all commercially zoned property is, in fact, located within
1000 feet of residential property. This is particularily true in
older areas of the City where narrow strip commercial development is
flanked by residential use. This restriction should be eliminated
from the ordinance and'the issue of neighborhood protection should be
addressed via the conditional use permit.
Conditional use permits are recommended in the GR, L, DMU, MI, and LI
zcning districts for Adult Entertainment businesses and for Adult
Se[vice businesses they are recommended in the L, DMU, CS and CS-1
zone districts. See Table 16 for a summary of these recommendations.
Table 16
Zoning Summary
GR L CBD D,MlJ CS CS-i CH MI LI
Adult Entertainment Businesses
Adult Service Businesses
C C P C P P P C C
- C P C C C P - -
C - Conditional Use
P - Permitted Use
r~,spersion of Adult Businesses
The analysis .of sex-related crime rates revealed that when more than
one business"'was located in a study area, the crime rate was 66%
higher. In order tO'address this potential problem, the regulation of
adt~lt businesses should prohibit their concentration. Presently, the
6rdinance requires a 1,000 foot (about three city blocks) seperation
botween adult businesses. This requicement should be continued.
£. POTENTIAL LOCATIONS
The available use district maps were examined to identify potential
locations where new adult entertanment business would be permitted to
establish. Although the available_a~aps do not provide full coverage
of the city, the most heavily urbanized sections of the city were
examined. The analysis found 4534 parcels of land of various sizes
where an adult entertainment business would be permitted as a use by
right under the current zoning assigned to these parcels. Adult
entertainment businesses would be allowed as a conditional use on an
additional 3328 parcels. These locations are located throughout the
city and offer extensive sites for the establishment of new adult
entertainment business. Permitted locations were found on
approximately 110 use district maps, which comprise well over 90% of
all maps examined. The maps will be retained on file in the Office of
Land Development Services,. 301 West Second Street, Austin, Texas
78767.
F. CONCLUSIONS
Implementation of the above recommended regulations will assure
protection of First Amendment rights, and will also allow adult
oriented business to operate without adversely affecting the property
values and crime rates in surrounding neighborhoods.
Appendix A
n,,..tysis of Adult Businecs Studies in Indianapolis, Indiana and Los
~9eles, California.
A. INDIANAPOLIS, INDIANA
In.. February, 1984, the Division of Planking. in Indianapolis published
a ~feport entitled Adult Entertainment Businesses {n'fnd[anapolis: An
AHnlysis. This report contained the results of an evaluation of the
]mr,act of adult business upon the surrounding area in terms of crime
rates and real estate values.
Incidence of Crime
Metho~]ology. The Indianapolis study assessed the impact of adult
entertainment businesses on crime rates by researching six areas
containing adult businesses and six similar areas containing no adult
businesses. The six Study Areas were selected from among the forty
three adult business loc~tions. The criteria used to select the Study
Areas were their zoning mix, population size, and the relative age of
their housing stock. The Control Areas (having no adult businesses)
were chosen on the basis of their proximate location to the Study
Areas and their similarity in terms of population size and zoning mix.
Of the six Study Areas, two consisted primarily of residential zoning,
two consisted primarily of commercial zoning, and two contained a mix
of both residential and commercial zoning. All Study and Control
A~eas were circular in shape with a 1000 foot radius.
The Indianapolis study evaluted crimes in the Study and Control Areas
for the years 1978 through 1982. The study compiled all reported
incidents to which police were dispatched. These data were assembled
into two groups: Major Crimes and Sex-Related Crimes. Major Crimes
included Criminal Homicide, Rape, Robbery, Aggravated Assault,
Residence and Non-Residence Burglary, Larceny, and Vehicle Theft.
Sex-Related Crimes included Rape, Indecent Exposure, Obscene Conduct,
Child Molestation, Adult Molestation, and Commercial Sex.
Results. The evaluation found that for both %he Study and Control
Areas, the rate of major crimes was higher than the corresponding rate
for the Indianapolis Police District as a whole. The average annual
rate for major crimes in the Study Areas was 23 percent higher than
the corresponding rate in the Control Areas. Ccmpa[ison of the rates
for sex-related crimes indicated a considerably larger difference
between the Study and Control A~eas. The average annual rate for
sex-related crimes in the Study Area was 77 percent higher than the
cocresponding rate .in the Control Area. The study also found a strong
correlation between the crime frequency and the residential character
of the Study areas. Crime rates were 5~ percent higher in
predominantly residential areas than in predominantly commercial
areas. The study found a more acute difference regarding sex-related
crimes. Sex-related crimes occurred four tires more frequently in
predom/nantly residential areas than in areas t%at were substantially
com~ercial in nature.
· .?al Estate Impacts
':q~ho~..~l_o_9Y. The Indionapolis report also evaluated the impact of
...lult businesses on property values. The report approached the
.~valuation from two perspectives. The first approach compared the
residential property appreciation rates of the Study Areas to those of
the Control Areas and to a larg~f~geographical area that included the
C~tudy and Control Areas. The second ~b'ach surveyed professional
%,eal estate appraisers to establ.ish a "best professional opinion"
regarding the market effect of adult businesses on surrounding land
values.
The first part of the evaluation examined three sources in the
assessment of residential property appreciation. These sources were:
the . Indianapolis Residential Multiple Listing Summaries of the
Metropolitan Indianapolis Board o~.~ealtors; 1980 Census Data; and the
annual, lending institution statements required by the Federal Home
Mortgage Disclosure Act. The second part of the evaluation solicited
the opinions of members of the'~American Institute of Real Estate
Appraisers (AIREA). The survey sample was drawn at two levels. A 20
percent random sample of AIREA members from across the nation was
constructed. A 100 percent sample of professional appraisers with the
MAI (Member Appraisal Institute) designation, who practiced in the 22
Metropolitan. Statistical Areas similar in size to Indianapolis, was
compiled. The survey questionnaire was formulated to solicit
information concerning the effect of adult businesses on residential
and commercial property located within one to three blocks of the
business site.
Results. The report adopted the following conclusions regarding the
appreciation of residential properties. First, residential properties
within the Study Areas appreciated at only one-half the rate of the
Con[rol Areas and one-third the rate of Center Township (representing
the performance of the market at a broader scale). Second, while
residential listing activity declined 52 percent in the Control Areas
and 80 percent in Center Township, in the Study Area listings
increased 4 percent. The report found that "twice the expected numbe~
of houses were placed on the market at substantially lower prices than
would be expected had the Study Area real estate market performed
typically for the period of time in question".
The tabulated results of the professional appraiser survey are
depicted in Table 1. From these results, the report concluded that:
The large majority of appraisers felt that there is a negative
impact on residential and commercial property values within one
block of an adult bookstore.
The negative impact decreased markedly with distance from the
adult bookstore. At a distance of three blocks the negative
impact w-as judged by appraisers to be less than half that when
compared to a distance of one block.
3. The majority felt that the negative impact was
~esidential properties than for commercial properties.
Table I
Effect of Adult Businesses on Property Values in Indianapolis, Indiana
~. Decrease Decrease Decrease No change Increase Increase
20% or 10 to 1 to 1 to 10 to
more 20% 10% 10% 20%
Residential Property
One Block Radius
20% N~ional
Survey'
21.3 24.5 34.1 20.1 0.0. 0.0
100% MSA
Survey 19.0 25.4 33.6 21.1 '0.9 0.0
Commercial Property
One Block Radius
.20% National
Survey 10.0 19.3 42.6 28.1 0.0 0.0
100% MSA
Survey 9.5 20.3 39.9 29.9 0.9 0.4
Residential Property
Three Block Radius
20% National
Survey 1.6 9.3 25.4 63.3 0.4 0.0
100% ~
Survey 2.6 7.8 28.9 60.3 0.4 0.0
Commercial Property
Three Block Radius
20% National
Survey 0.8 5.2 16.5 76.6 0.8 0.0
100% MSA
Survey 2.2 3.9 16.8 75.9 1.3 0.0
';':,e Indianapolis appraiser survey included a question designed to help
,..::tabiish the. basis for their opinions regarding the degree to which
.', !~,lt businesses affect property values in general. A/most 90 percent
of those responding to the survey provided responses to this question.
ID the national survey, 29 percent saw little -or .no effect on
s'r~rrounding property values resulting from adult businesses. They
f~sted as a basis their professional experience; ' the observation that
this use generally occurs in already deteriorated neighborhoods; and
t~e feeling that the effect of only one adult business would be
inconsequential.
One half of the respondents projected a substantial to moderate
negative impact on surrounding property values. Their responses were
based on the feeling: that adult businesses attract "undesirables" to
the [ueighborhood; that adult bus'.~, sses create a bad image of the
area; and that this type of use offends the prevailing community
attitudes thus discouraging homebuyers and customers from frequenting
the area. Twenty percent of the respondents indicated that the
potential impact on surrounding property values was contingent on
other variables. Many felt the impact would be contingent on the
existing property values in the area and the subjective value of area
residents. Some felt that development standards controlling facade'
and signage would determine the degree of impact, while others
indicated that the nature of the existing commercial area and its
buffering capacity as the most important factor influencing the impact
on surrounding property values.
The MSA survey results closely paralleled those of the national
survey. Two additional responses are noteworthy. First, some
respondents indicating a substantial to moderate negative impact based
their opinion on the feeling that such uses precipitate decline and
d~scourage improvements in the area. Second, some respondents felt
that the impact on property values was contingent on whether or not it
~as likely that other adult businesses would be attracted to the area.
B. LOS ANGELES, CALIFORNIA
In June, 1977 the Department of City Planning of the City of Los
Angeles published a report entitled Study of the Effects of the
Concentration of Adult Entertainment Establishments in the City of Los
~kngeles. The study includes an evaluation of the impact of adult
businesses on both crime rates and property values.
Incidence of Crime
Methodology. The City's study evaluated the impact of adult
businesses on criminal activity by comparing crime rates in Hollywood
to crime rates for the city. Hollywood was selected as a study area
because of its high concentration of adult bJsinesses. The study
focused on the years 1969 to 1975, during which t~..-~ adult businesses
~n Hollywood proliferated from 11 to 88 establisP.~ents.
R,'~,Its. The City's study monitored trends in Part 1 crimes. Part 1
,'t~...3s include homicide, rape, aggravated assault, robbery, burglary,
Ia,,--ny, and vehicle theft. The number of reported incidents of Part
I - times in the Hollywood area increased 7.6 percent from 1969 to
lg75. This was nearly double the city~ide average increase of 4.2
puLcent for the same time period. This report also monitored Part !
crimes con~nitted against a person (as opposed to those committed
against property) and found that they increased at a higher than
average rate in the Hollywood Area. Street robberies and purse
sng~kchings, where in the victims were directly accosted by their
assailant, increased by 93.7 percent and 51.4 percent, respectively;
c0m[~ared to the city wide average increase of 25.6 percent and 36.8
percent.
The increase in arrests for Part II crimes indicated an alarming
differential between the H611ywood area and the city as a whole.
Arrests for these crimes increased 45.5 percent in the Hollywood area
but only 3.4 percent city wide. Prostitution arrests in the Hollywood
area increased at a rate 15 times greater than the city average.
While the city showed a 24.5 percent increase, prostitution arrests in
Hollywood increased 372.3 percent. In 1969, arrests for prostitution
in the Hollywood area accounted for only 15 percent of the city total;
however, by 1975 they accounted for over 57 percent of the total. In
the Hollywood area pandering arrests increased by 475 percent, which
was 3 1/2 times greater than the city wide average. In 1969 pandering
arrests in the Hollywood area accounted for 19 percent of the city
total. By 1975, the share had increased to 46.9 percent.
The Los Angeles Police Department increased their deployment of police
personnel at a substantially higher rate in the Hollywood area in
response to the surge in crime. The report emphasized that
sexually-oriented business either contributed to or were directly
responsible for the crime problems in the Hollywood area.
Real Estate impacts
Meth.~do!e~f. The study prepared by the Cit-.' of Los Angeles utilized a
two point approach in evaluating the impact of adult businesses on
surrounding property values. The primary approach sought to
establish the irapact on proDerty values Dy mcnltoring changes in
assessed value from 1970 to 1976 f~r selected areas having
concentrations of adult businesses and lc: appropriate control areas.
The.~ report selected five study areas zontasnsng 4 to 12 adult
entertasrarent businesses. Three study areas were in Hollywoc~ and the
other two were in the San Fernando Valley. Four ccntrol areas, having
no adult businesses were selected. .-t..e study examined property
assessment data, U.S. census data, and other pertinent information to
determine the rate of appreciation ovet the six year study period.
The rates for the Study Areas were csmoared to the rates for the
Control Areas to gauge the i~koact of aou~t ~usinesoes on property
values.
· rh: second approach of the st~udy used survey questior~aires to
~.ui ,.:cLively establish the impact of adult businesses on surrounding
t,.'..,lential and commercial properties. Two questionnaires were
p~, ,,aced. 'rl~e first questionnaire was distributed to all members of
th.. American Institute of Real Estate Appraisers having a Los Angeles
address and to members of the California Association of Realtors
having offices in the vicinity of the Study Areas. The second
gue~-stionnaire was distributed to all property owners (other than
si5gle family residential) within 500 feet of the Study Areas. The
re.~,tlts of these surveys were supplemented '-'ith input from the general
pul,fir obtained at two public meetings held in the area.
Results. The evaluation found that there ~as some basis to,conclude
that the assessed valuation of property within the Study Areas had
generally tended to increase at a lesser rate than similar areas
having no adult businesses. However, the report noted that in the
opinion of the planning staff there was insufficient evidence to
support the contention that concentratisns of adult businesses have
been the primary cause of these 'patterns. of change in assessed
valuation.
The appraiser questionnaire was distributed to 400 real estate
professionals with 20 percent responding. The results can be
summarized as follows:
1. 87.7% felt that the concentration of adult businesses would
decrease the market value of business property located in the
vicinity of such establishments.
2. 67.9% felt that the concentration of adult businesses would
decrease the rental value of business property located in the
vicinity of such establishments.
59.3% felt that the concentration of adult businesses would
decrease the rentability/salability ~f business property located
in the vicinity of such establishment~.
72.8% felt that the concentration of adult businesses would
decrease the' annual income of businesses located in the vicinity
of such establishments.
~;er 90% felt that the concentrat:cn of adult businesses would
decrease the market value of private residences located within
1000 feet.
6. Over 86% felt that the concentrat:on of adult businesses would
decrease the rental value of residential income property located
within 1000 feet.
7. Almost 90%' felt that the concentra~:on of adult businesses would
decrease the rentability/salabxi~y of residential property
located within 1000 feet.
e£~ect of
g['affiti.
Tl,e survey
that adult
.Sales and
that adult
appearance
businesses.
R.-'pondents to the appraisers' survey commented that the adverse
,::errs are related to the degree of concentration and the type of
a-'.,it business. They indicated that one free standing adult business
n,.,/ have no effect. A few comments indicated that property values and
b,.finess volume might increase for businesses that are compatible with
adult entertainment businesses (e.g.: other adult businesses, bars).
A high percentage of appraisers and realtors co~ented on the adverse
adult businesses on neighborhood appearance, litter, and
of property owners indicated that almost 85 percent felt
entertainment establishments had a negative effect on the
profits of businesses in the area. Ove~ 80 percent felt
businesses had a negative affect on ~he value and
of homes in the area immediatel~ adjacent to such
Area property, owners and businessmen cited the following
adverse effects resulting from adult entertainment establishments.
1. Difficulty in renting office space.
2. Difficulty in keeping desirable tenants.
3. Difficulty in recruiting employees.
4. Limits hours of operation (evening hours).
5. Deters .patronage from w~men and families.
6. Generally reduces business patronage.
Respondents en~hasized their concerns about the high incidence of
c~ime. A high percentage of respondents commented that the aesthetics
of adult businesses are garish, sleazy, shabby, blighted, tasteless,
and tend to increase the incidence of litter and graffiti.
Testimony received at the two public meeting on this subject revealed
that there was serious public concern over the proliferation of adult
entertainment businesses, particularly in the Hollywood area.
Citizens testified that they are afraid to walk the streets.
particularly at night. They expressed c:ncern that children miqht be
confronted .~y unsavory characters or exposed to sexually explici%
material.
Appendix B
TYPES OF CRIMES
Part 1 Crimes
Mu'?der
C~[) ita 1 Mu rde r
Ct iminal Negligent Homicide/Non-Traffic
Criminal Negligent Homicide/Traffic
Involuntary Manslaughter/Traffic
Justified Homicide
Sexual Assault
Attempted Sexual Assault
Aggravated Sexual Assault
Attempted Aggravated Sexual Assault
Rape of a Child
Attempted Rape of a Child
Aggravated Robbery/Deadly Weapon
Attempted Aggravated Robbery/Deadly Weapon
Aggravated Robbery by Assault
Robbery by A~sault
Attempted Robbery by Assault
Attempted Murder
Attempted Capital Murder
Aggravated Assault
Aggravated Assault on a Peace Officer
Deadly Assault
Serious Injury to a Child
Arson with Bodily Injury
Burglary of a Residence
Attempted Burglary of a Residence
Bu[glary of a Non-Residence
Attempted Burglary of a Non-Residence
Theft
Burglary of a Vehicle
Burglary of a Coin-Operated Machine
Theft from Auto
Theft of Auto Parts
Pocket Picking
Pu~se Snatching
Shoplifting
Theft of Service
Theft of Bicycle
Theft from Person
Attempted Theft
Theft of Meavy Equipment
Theft of Vehicle/Other
Auto Theft
Attempted Auto Theft
Unauthorized use of a vehicle
Sex Related 'Crimes..
Sex, ual Assault
At, empted Sexual Assault
Aggravated Sexual Assault
Attempted Aggravated Sexual Assault
Rape of a Child
Attempted Rape of a Child
PrOstitUtion
Promotion of Prostitution
Aggravated Promotion of Prostitution
Compelling Prostitution
Sexual Abuse
Aggravated Sexual Abuse
Attempted Aggravated Sexual Abuse
Public Lewdness
Indecent Exposure
Sexual Abuse of a Child
Attempted Sexual Abuse of a Child
Indecency with a Child
Incest
Solicitation
Appendix C
COMPOSITION OF S'~3DY & CONTROL AREAS
BY ZONING DISTRICT
.... Area One
r.- Study Control
1-SF-3
SF-3 18.78 26.97
SF-3-H
MF-2 3.30
MF-3 .94
MF-4 .28
MF-5
LO 4.47 1.45
GO .43
CS 13.90 15.88
CS-H
GR .98 .34
LR .54 .89
LI
AVIATION 3.05
ROAD RC~ 22.59 22.33
Area Two Area Three
Study Control Study Control
2.92
25.43 22.31 33.26 47.29
1.93
Area Four
Study Control
22.49 22.39
"2..64 .77 2.32 1.72
1.38 7.88 2.64 1.03
.57 1.17 2.72 1.02
26.54 13.06 10.31 1.21
.34 .40
7.40 2.27 1.12
.37 3.78
17.65 20.53 14.51 12.74
1.00
2.69
13.16 24.99
15.44 1.55
.77 1.55
3.f2
17.51 14.34
TOTAL 72.12 72.12 72.12 72.12 72.12 72.12 72.12 72.12
Appendix D
QUESTIONNAIRE
Please complete this brief survey and return it to the Office of Land
Development Services by 4December 4, 1985. Read the following
cfinformation about a hypothetical neighborhood and respon~ to a few
l~questions in terms of your professional experience and judgement.
A middle-income, single-family residential neighborhood borders a main
street that contains various co~ercial activities that serve the
neighborhood. There is a building that recently has become vacant and
will open shortly as an adult bookstore. 'There are no other adult
bookstores or similar activities in the area. There is no other
vacant commercial space presently available in the area.
Please indicate your answers to questions 1 through 4 in the blanks
provided using scale A through G.
Scale:
(A) Decrease 20% or more
(B) Decrease more than 10 % but less than 20%
(C) Decrease from 0 to 10%
(D) No change in value
(E) Increase from 0 to 10%
(F) Increase more than 10% but less than 20%
(G) Increase 20% or more
1) How would you expect the
residential property within
affected?
average values of the single-family
one block of the bookstore to be
2) How would you expect the average values of the commercial property
within one block of the bookstore to be affected?
3) How would
residential
affected?
expect the average values of the~ single-family
property within three blocks of the bookstore to be
4) How w~uld you expect the average values of commercial property
within three blocks to affected?
5)
Suppose the 'available commercial building is used for something
other than an adult bookstore. For each of the following
potential uses, would the average value of the residential
property within one block of the new business be:
(A) much higher;
(B) somewhat higher;
(C) about the same;
(D) somewhat lower; or
(E) much lower;
than if an adult bookstore occupied the site.
Store-front church
Drug rehabilitation center
Pool hall
Ice cream parlor
Welfare office
Video-game parlor
Neighborhood tavern
Record store
Adult Video Arcade
Topless Bar
Medical Office Massage parlor
Branch Library :: Adult Theater
6) In 'general, to what degree do you feel adult entertainment
businesses affect property values?
7) Why do you feel this way?
8) Are you affiliated with a professional real estate appraisal
organization? If so, please specify.
OPTIC6FJ.: Name and Name of Firm
City of Oklahoma City
COMMUNITY DEVELOPMENT DEPARTMENT
Planning Division
ADULT ENTERTAINMENT BUSINESSES IN OKLAHOMA CITY
A SURVEY OF REAL ESTATE APPRAISERS
March 3, 1986
The Cffyof
.,.Ok.lat"x:x-r
Community Development
200 N Woll~er
~1o~,o C,W, O~.la. 73102
February 3, 1986
Dear Oklahoma City Appraiser,
The City of Oklahoma City has recently adopted a new ordinance that
will regulate the location of adult entertainment businesses.
Adult entertainment businesses are defined in our ordinance as those
which emphasize acts or materials depicting or portraying sexual
conduct. These businesses include "Adult Bookstores," clubs with
nude dancers, theatres which show sexually explicit movies, etc.
In an effort to more completely analyze the impact of adult businesses
on surrounding properties, Planning Division asks for your help in
establishing a "best professional opinion" on the matter. As a real
estate professional, the opinions you share with us on the enclosed
survey forms would be very valuable to us in the development of a
local data base for this sensitive land use issue.
Thank you very much for your assistance.
Sincerely,
Carl ~riend
Principal Planner
CF:SK:dar
cc:
Pat Downes
H. D. Heiser
COMMUNITY DEVELOPMENT DEPARTMENT
Plan~g~ Divi s ion
CITY OF OKLAHOMA CITY
TO: Professional Real Estate Appraisers
Please help us in this brief Oklahoma City survey. The
information provided will help us establish an important
data base regarding adult entertainment businesses.
The first four questions relate to the hypothetical situation
presented below. The last three questions refer to actual
~ituations in Oklahoma City that you might be aware of.
A middle income residential neighborhood borders
an arterial street that contains various commercial
activities serving the neighborhood. There is a
building that was vacated by a hardware store and
will open shortly as an adult bookstore. There are
no other adult bookstores or similar activities in
the area. There is no other vacant commercial space
presently available in the neighborhood.
Please indicate your answers to questions 1 through 4 in the
blanks provided, using the scale A through G.
SCALE:
A Decrease 20% or more
B Decrease more than 10% but less than 20%
C Decrease from 0 to 10%
D No change in value
E Increase from 0 to 10%
F Increase more than 10% but less than 20%
G Increase 20% or more
1) How woul'd you expect the average values of the P~ESIDENTIAL
property within ONE block of the bookstore to be affected?
2) How would you expect the average values of the COMF~ERCIAL
property within ONE block of the bookstore to be affected?
3) How would uou expect the average values of RESIDENTIAL
property located THREE blocks from the bookstore to be
affected?
4) How would you expect the average values of COMMERCIAL
property located THREE blocks from the bookstore to be
affected?
5) Are you aware of the existence of adult entertainment
businesses in Oklahoma City?
6) What is your opinion as to the effect of these businesses
on surrounding properties?
7) Specifically, how do you think these businesses affect
the surrounding property?
Are you a member of:
MAI
ASA
SREA
other
Your name or agency
(If you prefer not to give your name, please check here
Thank you for your cooperation. Please retu~n this questionnaire
in the postage paid envelope proviced for your convenience.
METHODOLOGY
On February 7, 1986, I00 questionnaires were mailed. All real estate
appraisers in Oklahoma City listed in the Yellow Pages were included in
the survey. As of March 1, 1986, 34 (34%) of the questionnaires had been
completed and returned. Real estate appraisers do not receive certification
from the State of Oklahoma; however, 26 of the respondents (76%) belonged to
a professional organization. The table below summarizes the objective part
of the questionn~e: Subjective co~ents are discussed in a separate
section of this report.
SCALE QUESTIONS
i 2 3 4'
A 11 (32%) 7 (21%)
Decrease
20% or more
B 8 (24%) 9 (26%)
Decrease
10% - 20%
C 6 (18%) 10 (29%)
Decrease
0- 10%
D 9 (26%) 8 (24%)
No change
in value
4 (12%)
3 (9%)
10 (29%)
17 (50%)
4 (12%)
3 (9%)
7 (21%)
20 (59%)
E,F, and G
were positive
values--not checked by anyone
OKLAHOMA CITY REAL ESTATE APPRAISER SURVEY RESULTS
The 100% survey of real estate appraisers in Oklahoma City produced
resUlts that were consistent in virtually all respects with the result
of the national survey of appraisers carried out by the city of Indianapolis.
Respondents overwhelmingly (74%) indicated that'-~h--aiS~lt bookstore would
ha~e a negative effect on residential property values in the hypothetical
neighborhood described if they were within one block of the premises. 32%
felt that this depreciation would be in excess of 20%, wheras 42% foresaw
a decrease in value of from 1% to 20%. (Comparative national (igures are
78%, 19% and 59% respectively.)
Seventy-six percent (76%) saw a similar decrease in commercial property
values within one block of the adult bookstore. As in the national survey,
fewer (21%) felt that a devaluation of over 20% would occur. The majority,
(55%) saw the depreciation as being in the 1% to 20% range. (Comparative
national figures are 69%, 10% and 59% respectively.)
The negative impact fell off sharply when the distance was increased to
three blocks. As in the national survey, there appears to be more of a
residual effect on residential properties than on con~nercial properties.
50% of the appraisers felt that a negative impact on residential properties
would still obtain at three blocks from the site. Only 12% felt that this
impact would be in excess of 20%. The remaining 38% felt that depreciation
would be somewhere in the 1% to 20% range. 50% saw no appreciable effect
at all at three blocks. (Comparative national figures are 39%, 3% and 61%.)
Com~nercial property was Judged to be negatively impacted at three blocks
by 41% of the survey. 59% saw no change in value as a result of the
bookstore. (Comparative national figures are 23% and 76% respectively.)
In sun,ha ry:
- The great majority of appr~asers ( about 75%) who responded to
this survey felt that there is a negative impact on residential
and con~nercial property values within oneblock of an adult
bookstore.
- This nagative impact dissipates as the distance from the site
increases, so that at three blocks,lhalf.of the appraisers~felt..tbat
there is a ~gative impact on residential property and less than
half felt that there is a negative impact on con~nercial property.
RESULTS FROM SUBJECTIVE QUESTIONS
Oklahoma City real estate appraisers'were also asked for their opinions
as to the effect of adult entertainment businesses on surrounding properties.
Most of the respondents discussed a variety of negative effects. Only five
respondents (14%) said that adult entertainment business had very little
effect on surrounding properties. Of these, three appraiser felt that
these types of businesses located in con~nercial areas that were already
blighted. All respondents indicated~heir awareness of the existence of
adult entertainment businesses in Oklahoma-Cityi'-many refered to the lOth
anO MacArthur location as a prime example of an undesirable cluster situation.
Opinions are sun~narized below:
Not good: attracts undesirables, threat to residents feeling of safety & security.
- acts as a deterent to home sales
Would you want your home or business next door?
-forces good businesses out
-tends to have a snowball effect
-an immediate transition begins, with the better quality businesses moving out
and a lower class business moving in (pawn shops, bingo parlors)
-embarrassment to other businesses and cliental - late hours, parking-
trash and debris - vandalism
-children in the area in danger of adverse influence or by actual molestation
by perverted people drawn to such establishments
Typical shoppers and residents go elsewhere to shop, and, if they're able
to live.
If there is a large concentration of this type of business, there can be
a very large loss in p~perty value.
-tends to prevent economic improvement in the area, effects the co--unity as to
attracting other businesses
-detrimimental impact on rental rates
AN ANALYSItS 1984
ADULT ENTERTAINMENT BUSINESSES IN INDIANAPOLIS
AN ANALYSIS
Department of Metropolitan Development
Division of Planning
February, 1984
SUMMARY AND ~ECOMMENOATIONS
SUMMARY AND RECOHMENDATIONS
During the past ten years, Indianapolis has experienced a signi-
ficant growth in the number and variety of adult entertainment
businesses !ocated in its jurisdiction. An adult entertainment
business, for the purposes of this study, is an establishment
which primarily features sexually stimulating material or per-
formances. As of mid-1~)83 there were sixty-eight such busines.ses.
operating in this City. They were located at forty-chree separate
s i res.
The proliferation of these businesses heightened the community's
awareness of their existence and resulted in numerous reqbests
that the City control their presence. Beyond the moral objections
raised by many citizens, it was also alleged that such businesses
had a detrimental effect on property values and contributed to
high crime rates where they were located.
The Indianapolis Division of Planning undertook this study in
July of 1983. Of the existing adult entertainment sites, the
study examined six representative locations ( the Study Area )
and the presence - or lack thereof - of certain relevant condi-
tions therein. It then compared these sites with six physically
similar locations ( the Control Area ) containing no adult en-
tertainment business. Both groups of .sites were compared with
the City as a whole.
Because of their importance to the public welfare of the commun-
ity, the study examined the factors of crime incidence during
the period 1978 - 1982 and real estate value appreciation from
1979 - 1982. In support of limited real estate data on a small
area level, the City collaborated with Indiana University in a
national survey of real estate appraisers to develop a 'lbest pro-
fessional opinion" as to the effect of adult entertainment busi-
nesses on surrounding real estate values.
As discussed in Appendix III of this report, case law has firmly
established the legal and constitutional basis for control of the
use of land within their jurisdiction by states and municipalities
in order to safeguard "the public health, safety, morals and gen-
eral welfare of their citizens". The "public welfare", in this
context, embraces the stabilization of property values and the
promotion of desirable home surroundings. On the other hand,
case law has also upheld the right: of this business sector to
operate in the community under the First and Fourteenth Ammend-
merits of the Constitution.
In establishing an empiric base to determine whether controls were
warranted in order to direct the location of these businesses,
analyses of the data showed:
- The average major crime rate ( i.e., crimes per 10,000
population ) in the IPD District was 748.55, the Control
Area 886.34, and the Study Area 1090.51. Major crimes oc-
curred in areas of the study that contained at least one
.adult entertainment establishment at a rate that was 23~
higher than the six similar areas studied not having such
businesses and 46% higher than the Police District at
I a rge.
- Although it was impossible to obtain a discrete- rate for
sex-related crimes at the police district level, it was
possible to compare rates between the Control Areas and
the Study Areas. The average sex-related crime rate in
the Control Areas over the five year period was 26.2,
while that rate for the Study Areas was 46.4.
- If the ratio of sex-related crimes was the same as that
established for major crimes between the Control Area and
the Study Area, however, we would expect a sex-~e)ated
crime rate of 32.3. The actual rate of 46.4 is 77% high-
er than that of the Control Areas rather than the 23% that
would be expected and indicates the presence of abnormal
influences in the Study Areas.
- Close examination of crime statistics within the Study
Areas indicate a direct Correlation between crime and the"
residential character of the neighborhood. Crime frequen-
cies were 56% higher in residential areas of the study
than in its commercial areas.
- At the same time, sex-related crimes occurred four times
more frequently within residential neighborhoods having
at least one adult entertainment business than in neigh-
borhoods having a substantially district-related commer-
cial make-up having adult entertainment.
- A!though the housing base within the Study Areas was of
a distinctly higher value than that of the Control Areas,
its value appreciated at only one-half the rate of the
Control Areas' and one-third the rate of Center Township
as a whole during the period 1979 - 1982.
- Pressures within the Study Areas caused the real estate
market within their boundaries to perform in a manner con-
trary to that within the Control Areas, Center Township
and the County. In a time when the market saw a decrease
of 50% in listings, listings within the Study Areas actu-
ally increased slightly.
ii
(' (
- As a result, twice as many houses ~vere placed on the market at
substantially lower prices than would be expected had the Study
Area's market performance been typical for the period of time
in question.
- The great majority of appraisers (75~) who responded to a na-
tional survey of certified real ~state appraisers felt that an
adult bookstore located within one block would have a negative
effect on the value of both residential (80~;) and commercial
(72~) properties. 50% of these respondents foresaw an immedi-
ate depreciation in excess of 10~
- At a distance of three blocks, the great majority of respon-
dents (71%) felt that the impact of an adult bookstore fe]l off
sharp]y so that the impact was. negllgible on both residential
(64%) and commercial (77%). At the same time, it appears that
the residual effect of such a use was greater for residential
than for commercial properties.
- In answer to a survey question regarding the impact of an adult
bookstore on property values generally, 50% felt that there
would be a substantial-to-moderate negative impact, 30% S~w
little or no impact, and 20% saw'the effect as being dependent
on factors such as the predominent values (property and social)
existing in the neighborhood, the development standards impos-
ed on the use, and the ability of an existing commercial node
to buffer the impact from other, uses.
While the statistics assembled and analyzed in this study should not
be construed as proving that adult businesses cause the negative im-
pacts illuminated herein, an obvious variable in each 'instance of com-
parison is.their presence. Crime rates - particularly' those that are
sex-related - show substantial deviation from normal rates for this
population. Analyses of real estate listings and sales show a nega-
tively abnormal performance of the real estate market in areas where
adult entertainment is offered. In this latter case, the best profes-
sional judgement available indicates overwhelmingly that adult enter-
talnment businesses - even a relatively passive use such as an adult
bookstore - have a serious ~egal:ive effect on their immedia:~ envi-
TOnS.
Consequently, it would seem reasonable and prudent that the City ex-
ercise its zoning power to regulate the location of adult entertain-
ment businesses so that they operate in areas of the con~nunity that,
' while accessable to their patrons, are yet located in districts that
are least likely to injure the general welfere cf residents.
iii
TABLE OF CONTENTS
SUMI~L~RY ANI~, RECOMMENDATIONS
I NTRODUCT~ON'
STUDY METHODS
CRIHE INCIDENCE
MAJOR CRi MES
SEX-RELATED CRI ME
CRIME IMPACT BY AREA TYPE
REAL ESTATE IMPACT
PROFESSIONAL APPRAISAL OF IMP'ACTS
20% NATIONAL SURVEY
100% MSA SURVEY
APPENDI C! ES
I. AREA MAPS
Iio SURVEY OF APPRAISERS
Ill. LAND USE CONTROL OF
ADULT ENTERTAINMENT
i
1
2
8
15
22
27
I-I
Il-!
Ill-I
Il' IS, 'i'HEREFORE, RECOMMENDED:
- THAT ADULT ENTERTAINMENT BUSINESSES BE ALLOWED TO LOCATE IN
AREAS THAT ARE PREDOMINANTLY ZONED FOR DISTRICT-ORIENTED
COMMERCIAL ENTERPRISES - I. E., C/4 OR MORE INTENSE USE
CATEGORI ES ..
- THAT NO ADULT ENTERTAINMENT BUSINESS BE ALLOWED TO.LOCATE
IN AREAS THAT ARE PREDOMINANTLY ZONED FOR NEIGHBORHOOD-
ORIENTED COMMERCIAL ENTERPRJSES - I. E., C3 OR LESS INTEN-
SIVE USE CATEGORIES.
- THAT EACH LOCATION REQUIRE A SPECIAL EXCEPTION WHICH, AMONG
OTHER CONSIDERATIONS, WOULD REQUI RE APPROPRIATE DEVELOPMENT
STANDARDS DESIGNED TO BUFFER AND PROTECT ADJACENT PROPERTY
VALUES.
- THAT THESE USES NOT BE ALLOWED TO LOCATE WITHIN 500 FEET
OF A RESIDENTIAL, SCHOOL, CHURCH OR PARK PROPERTY LINE NOR
WITHIN 500 FEET OF AN ESTABLISHED HISTORIC AREA.
I NTP, O DUCTI ON
As is the case in most large citles, Indianapolis has experienced
a rapid growth in the number and variety of adult entertainment
..... businesses over the past ten years. As of June, 1~)83 there were
sixty-ei'gh't such businesses located singly and in clusters through-
C' out Marion County.
~,.
For the purpose of this study, the term '~adult entertainment busi-
ness'' is a general term utilized to collectively designate busi-
nesses which primarily feature sexually stimulating matekiai and/
or performances. These non-exclusively include adult bookstores,
adult cabarets, adult drive-in theaters, adult mini motion picture
theaters and arcades, adult entertainment arcades and adult sar-
vi ce establishments.
These enterprises have posed a parti'cular problem due, in part, to
the moral implications attendant upon such businesses in the minds
of many members of the community. While this is, perhaps, the view
of :he majority, case law on the subject has clearly established
that the exclusion of such businesses from a community is an in-
fringement of First Amendment rights. The proliferation of such"
businesses providing various forms of adult entertainment in Mar-
ion County has exacerbated this dilemma and given rise to addition-
al charges of negative impacts on neighborhoods in proximity to
their location.
Through the use of their'zoning power, cities have within the past
half century directed the physical growth of communities in order
to assure a harmonio,Js blend of land uses which foster the general
welfare of the population. This power has been applied more recent-
ly to adult entertainment businesses in many communities and has
served as a prime means of controlling possible negative impacts
on neighborhoods.
This study was undertaken to examine these alleged negative impacts
with the purpose of empirically establishing, to the extent poss-
ible, their existence or non-existence as well as their real di-
mensions in Indianapolis. The possible relationships between these
impacts and the land use characteristics of the sites in which they
are offered were also ~xamined to ascertain v:hether certain land
use classifications were better suited than others for the loca-
tion of adult entertainment businesses.
METHODOLOGY
STUDY METHODS
As described below, the study methodology employs the comparison
of different land areas in Indianapolis. The two basic areas of
comparison are Study Areas and Control Areas. They are distin-
guished by the exigten-ce c>f.-adult entertainment establishments
within their boundaries ( the Study Areas ) or the absence there-
of ( the Control Areas ).
These two designations are further differentiated as to the gen-
eral purpose or emphasis of th~ land uses they contain. Those
that generally serve the immediately surrounding residential uses
are termed "Neighborhood-Related" while those that contain uses
meant to serve a broader geographic area are designated "Commun-
i t¥-Rei ated".
STUDY SITE LOCATIONS
At the time of the study's inception, there were at least forty-
three possible, distinct sites in Indianapolis where adult enter-
tainment was offered either singly or in clusters of establish-
ments. For manageability purposes, it was decided to select six of-
these sites that were representative. In choosing these subject lo-
cations (as'well as the Control Areas of the study),the determinant
characteristics were their zoning mix, population size and the
relative age of housing stock. In each case, adult entertainment
was offered during the time span of the study.
The selection process was additionally based on the number of es-
tablishments located in a given neighborhood, whether it was resi-
dential in nature and therefore neighborhood-related, or contained a
significant portion of its land use in regional, commercial uses
which made it community-related.
The designation "Neighborhood-Related" was applied where a prepon-
derance ( 75% or more ) of the area within 1000 feet of the site
was zoned D1 through D12 ( residential dwelling district classifi-
cations ) and the commercial areas were neighborhood-related - prin-
cipally C3 ( a neighborhood commercial classification ). Special
Use designations were judged to be neighborhood-related or not on an
individual basis. SU1 (church) & SU2 (school), for example, were
judged to be generally neighborhood-related.
"Community-Related" areas were described as areas where a signifi-
cant proportion (30% or more) ot: the zoning within the lOOD-foot
radius was C4 ( £ommunil:y-Regional Commercial ) or more intense and
the Special Uses within the boundaries were of a community-wide'na-
ture. SU6 (hosPital) and SU21 (cemetery) were judged, therefore, to
be related to the community generally.
Within these two broad classifications, six locations were chosen.
Two of them were situated in residential settings, two in re-
gional-commercial settings and two in areas that fell in between,
i. e., areas that had a high percentage of residential zoning but
also contained a certain proportio~ of regionally oriented com-
mercial zoning. These six locations became the Study Areas of
this investigation. (cf. Appendix I)
SITE
Residential
1.5431Eas~ 38th St.
2.3155 East lOth St.
Coml ./Res ident iai
3.3555 West 16th '"St.
4.2101 W. Washington
Comme rc i a 1
5.6116 E. Washington
6.4441-63 N. Keystone
AREA ZONING CHARACTERISTI CS
STUDY AREAS
CHARACTE R! ST I CS
Residential Con~nerciai SpecialI
Parks
04=82%
05=75%
C3=8~C1=7~ i SUl=3~
C3=24% SU9=1%
05=78%
05=60%
IC4=22%
C3=3% ·
C4= 18%
SU2=I 7% PKl=2%
05:65%
08=5%
05 = 15%
C4:30%
C2=5%
C3=10%
C5=40%
I 1U=12%
1213=-13%
PK2=5%
Of the two sites chosen in residential areas, one contained an
adult bookstore (Apollo Adult Books, 5431 East 38th St.-) and a
massage parlor(E~e'.~ Garden of Relaxation, 5429 East 38th St.)
The other resider, Ciai location contained an adult movie house
(Rivoli Theater, 3155 East 10Ch St.) and a topless bar (Ten-De
Club, 3201 East loth St.)
One of the commercial/residential areas had a topless bar within
its boundaries (Blue Moon Saloon, 2101 West Washington), while
the other harbored the White Front Bar which featured topless
dancing (3535 West 16th St.)
The two commercial areas chosen were in the sixty-one hundred
block of East Washington St. and the forty-four hundred block
of North Keystone. The fi rs£ site contained two adult book-
. stores (Modern Art Bookstore at 6118 and Adult Arcade at 6122)
and a massage parlor (Spanish Moon at 6116.) The North Keystone
location contained four massage parlors (Other World, 4441,
Diamond's Angels, 4445, Pleasure Palace, 4461, and Tc~.,n and
Country, 4463), two adult bookstores (Video World, 4447 and
Adult Bookstore, 4475) as well as a topless lounge (Devil's
Hideaway, 4451).
Six areas were also selected to serve as control sites for the
study. These Sites were chosen on the basis of their proximate
location to the Study Areas (or their location on major thor-
oughfares in areas physically similar in location and types of
development), size of population and zonh~g-.characteristics.
None contained adult entertainment businesses. Selection was
also made so that two of the sites were in predominantly resi-
dential areas, two in commercial areas and two in areas that
contained a significant mix of residential and regional com-
mercial zoning. These six sites became the Control Areas'of the
study, (cf. Appendix I.) .......
SITE
Residential
1.2300 West 10th
2.2500 East 10th St.
Coral./Res idential
3.5420 E. Washington
4.2600 W. Washington
Commercial
5.5200 N. Keystone
6.75o N. Shadeland
AREA ZONING CHARACTERISTICS
CONTROL AREAS
CHARACTE RI STI CS
Residential Commercial Special
05=82%
05=80%
Cl =4%
C3=14%
C2= 12%
C3=8%
D5=62%
D6=8%
08=10%
D5=35%
D4=34%
C4=19%
cl-2%
c5=13%
C7=8%
su1=3%
5u2=3%
D2=7%
04=2%
D5=15%
D7=6%
03= 15%
D7=3%
C1=4%
C3:9%
C5:25%
C7:20~
CS=2%
C4:49%
C5=10%
CS:5%
Parks
Resident~a!
Study Area
1.
2.
Control Area
1.
2.
Coml./Res| denti
AREA ZONING CHARACTERISTICS
NEI GHBORH OOD- RELATED COMMUNITY-RELATED
I00~
· 100%
Study Area
3. 78%
~. 82%
Cont to1 Area
3. 81%
~. 78%
Comme rc i a 1
Study Area
5. 70%
6. 35%
Control Area
5. 43%
6. 36%
22%
19%
22%
3o%
65%
57%
64%
STUDY SITE COMPARISONS
Throughout the following analyses, a series of comparisons are
made at several different levels of geography: i.e., County/
Police District; Census Tract/Census Tra~t Cluster; and Control/
Study Area.
La rge Area
When dealing with crime statistics, the Indianpolis Police
Department District is used as the largest universe of com-
parison. In the case of real estate information, Marion
County is used as the largest geographic area of comparison.
Center Township is also used as a basis of comparison in
the analysis of adult entertainment impacts on property
va I ues
Mid-Size Area
Intermediate geographic levels used for comparison in the
study were census tracts when study sites were centrally
located within their boundaries. Where they were not, those
census tracts in proximity to the site were chosen as the
basis of comparison.
Control Areas
CENSUS TRACTS/TRACT CLUSTERS
Study/Control Areas
1 2 3 4 5 6
~ 3527 '~611 3414 3216 360~
2416 3547 3612 3426 3217 3607
3548 3608
Study Areas 3310 3526 3411 3414 3607 3216
3601 3548, 3426 3224
354~ 3538 3225
3226
Sub-Area
The Control Areas and the Study Areas, as described above,
formed the smallest geographic group of the study. These
target areas were constituted using the criteria listed
in the previous section of this report and data derived for
them by aggregating block-level or addressed data within
a lO00-foot radius of the area centroid.
""" I
I
:
I
:
I
i
I
Study Area
Control Area
1980 CENSUS TRACTS
ADULT ENTERTAIN~IENT BUSINESS STUDY
I
CRIHE INCIDENCE
CRIME INCIDENCE
The Oata Processing Unit of the Indianapolis Police Oepartment
performed two computer runs of their "Incidence Files" 1 in August
of 1~83'~-the r. eclu. e.st..of the City Division of Plannlng. The re-
sultant printouts detailed ali reported incidents to which po-
lice had been dispatched in the Ce:itrol Areas and the Study Areas
during the years 1978, 1979, 1980, 1~81 and 1~82. Data were assem-
bled from these printouts on a year-by-year, area-by-area basis.
They were then grouped by Hajor Crimes2 and Sex-Related Crimes.3
Summary data for the Indianapolis Police District were also assem-
bled for major crimes during the years 1~78 through 1~82. Unfor-
tunately, sex-related crimes had not been discreetly assembled
for'the Police District and study constraints would not allow
their tabuibtion manually.
The purpose of these tabulations was to identify any possible
abnormalities that might have occurred in expected frequency and
nature of crime between the Indianapolis Police District, the
Control Areas which were chosen for their similarity to the .,
Study Areas and the Study Areas themselves in wt~ich adult enter-
tainment establishments were in operation.
As was demonstrated in the previous section, the Study Area loca-
tions were chosen as being representative of existing adult en-
tertainment sites in zoning mix, size of population, age of hous-
lng stock and types of adult entertainment services offered in
the area. Excepting the latter, these same criteria were used in
the choice of Control sites. Because they were representative,
it is possible to compare Control and Study Areas as.well as in-
fer findings to other adult entertainment locations in the com-
mun i ry.
Based on the summaries of crimes, crime rates were computed f~r
each area using 1980 Census data as the population constant.
The crime rate statistics portrayed the frequency of crime in
each area for each 10,000 of population and allowed direct com-
parison of crime impacts between the three areas. The same tech-
nique was used to compare the magnitude of sex-related crime in
the Control Areas and the Study Areas.
7
MAJOR CRIMES
The crimes of Criminal Homicide, Rape, Robbery, Aggravated
Assault, Residence and Non-Residence Burglary, Larceny and
Vehicle Theft are reported on a monthy basis by the Indian-
apolis Police Oepartment as Major Crimes. During the period
of this study ( 1978 - 1982 ), there were 175,796 major crimes
reported in the IPD District with an annual high of 37,220
o¢curit~gJn 1980. The crime rate for this year was 792.42
in the police district.
This represented an increase of 2,115 major crimes over the
previous year total and an increase of 6~; in the crime rate.
The lowest annual total in the study period ( 33,898 ) was
reported in 1981 which represented a drop of 10% in the
crime rate from the previous year.
Indianapolis Police District Major Crimes/Rates
1978-1982
Population- 469.700
1978 1979 1980 1981 1982
76/1.62 92/1.~6 107/2-28 65/1.38 69/1.47
341/7.26 439/9.35 410/8.73 400/8.52 357/IL24
li~63/41.79 2053/43.71 2193/46.69 2194146.71 1903/42.43
1353/2~81 1504/33.94 1743137.11 1880/40.03 i892/40.28
e~346/135.11 6538/139.20' 7495/169.57 7§771183.45 77831165.70
23921&0.93 2011/42.82 2579/54.91 2308/49.14 2213/47.12
Larceny 18692/397.96 18927'1402.06 18906/402.51 18782/357.2.9 17497/372.51
Vohlcla
Thet~a 3674178.22 3451173.47 3787180.63 2592155.18 2002161.78
Total: 348.37/741.69 351051747.39 372201792.42 3..~8@81721.70 34736/'739.54
Total C~lrne: 175.786
Per 10.000 Po~dlatlo~
8
Over the same period of time,, the Control Area for this study
had 5,170 major crimes committed within its boundaries - the
highest number occurring in 1980 when 1,099 crimes were re-
ported. The crime rate for this year was 9q2.05 in this area.
This is compared to the lo. est total of 912 and a crime rate
of 781.76 for 1978. This represented an absolute difference
of 187 total major crimes and a difference of 21:~ in the crime
rate ( 160.29 ). -' -~
Murder
Rape
Robbery
Aggravated
Assault
Residence
Burglary
Non-Residence
Burglary
Larceny
Vehicle
Theft
· Per 10,000 Pot3ulatiort
Control Area Major Crimes/Rates* 1978-1982
(Population-11,666)
1978 1979 1980 1981 1982
1/0.86 413.43 3/2.57 5/4.29 211.71
8/8.86 12110.29 15/12.86 8/6.86 13/11.14
:37/31.72 44137.72 44/37.72 50/42.86 36/30.86
- 18116.29 35130.00 29124.86 30/25.72 37/31.72
151/129.42 2291196.30 262/224.58 272/233.16 198/169.72
71160.86 60/42.86 62153.15 59/50.b'7 79167.72
4841414.88 544/466.31 574/492.03 5881504.03 579/436.31
141/120.86 112/96.01 110/94.29 83/71.15 9OI77.15
Total: 912/781.78 1,0301882.91 1,099/942.05 1,095/938.63 1,034/886.34
· Total: 5,170
Average: 686.34
During the period 1978 - 1982, 4,657 major crimes were committed
in the Study Area. As in the IPD District and the Control Area,
the greatest volume of major crimes ( 1,103 ) occurred in 1980
which had a crime rate of 1,291.42. The fewest number of crimes
in the study's time frame was 867 in 1978 which represented a
differential in the total number of major crimes reported and
the rate of crime of -236 and -276.32 respectively from 1980
Robbery
Study Area Major Crimes/Rat~s* 1978-1982
(Poovlation- 8,541)
1978 1079 1980 1981 1982
3/3.51 0/- 212.34 615.85 0/-
3/3.51 12/14.05 11/12-88 9/10.54 8/9.37
65164.40 53162.05 ~8167.91 26130.44 44151.52
Aggravated
Assault
25129-27 ' " 18121.08
22125.76 18/18.73 29133.95
Residence
Burglar7 1611188.50 200/234.17 2441285.68 190/222.46 189/221.29
Non-Residence
Burglmry 82/96.01 58/67.91 80183.67 65176.10 64174.93
Larceny 482/540.92 4501526.87 6861686.10 5601655.66 4641543.26
Vehicle
Theft
76/88.98 901105.37 100/117.08 60/70.25 7719G. 15
Total' 867/1015.10' 88111031.60 110311291.42 93111090.04 875/1024.47
ePer 10,000 Populatio~
Total: 4,657
Average: 1090.51
The frequency of crimes in the IPD District, the Control Areas' and
the Study Areas showed approximately the same pattern. In each of
the areas, the number of major crimes increased from 1978 to 1980
when they peaked. Subsequent years showed frequency levels below
the 1980 high.
The average crime rate figure for the Indianapolis Police Depar. t-
ment District was 7Zt8.$$. The Control Area had a rate that was
137.79 higher than the overall police district, whereas the Study
Area was .20~.17 points higher than the Control Area. In other
words, people living in the Control Area of the study were ex-
posed to a major crime rate in their neighborhoods that was 18~;
higher than that of the IPD population generally.
Residents of the Study Area, hc~vever, were exposed to a major
crime rate that was 23~; higher than that of the Control Area and
46~ higher £han the population of the IPD Distric~ as a whole.
10
Major Crime Rate~ 1978-1982
1500
IPD District
Control Area
Study Area
1300
1100
900
70O
50O
741.7
/1031.5
/
2291.4
%
942.1
721.;'
1978 1979 1980 1981
1024.5
886.3
739.5
1982
~'rhe numerical Instance of Criminal Homicide, Ra;)e, Robbery, Aggravated Assault, Residence
Burgfaryo Non-Residence Burglary, larceny and Vehicle Theft- Per 10,000 Populelion.
11
C
It is interesting to examine crime rates within the Control
and Study Areas in relatio~ to the land use characte'rls ti cs
of the locations in which they occurred.
Crime rates provide a better understanding of actual impact
on the resident of the area than crime frequencies in that
they establish a ratio of crime to each 10,000 of. popula-
tion. In .this way, they tell us just hcxv vulnerable anelgh-
borhood is historically to crime within its boundaries.
AREA
Control
1.
2.
Se
Study
1.
2.
1978-1982 ANNUAL AVERAGE HAJOR CRIHE RATE
BY LAND USE
Comme rci a 1 Corn1./Res. Res i de~ t i a 1
Pop./Crime/Ann. Rt Pop./Crime/Ann.Rt. Pop./Crime/Rnn. Rt.
379 240 1267
523 1147 4386
9o2 13-8~ 3075
2828 837 592.
2382 705 592
5210 15-4'~ 592
219 439 4009
1218 831 1365
1-'L~37 1270 1768
2159
3395
1173
1067
2240
1087"
629
807
3. 1015 834 1643
4. 1203 653 1086
~ ~ 1341
5. 3656 1232 674
6. 1230 668 1086
· ~ 1.900 778
J~ccordlngly, we find that this impact is 74% higher in dis-
trict commercial areas of the Control Area than similar dis-
trict commercial areas of the Study Area. However, while the
rate is approximately the same in the residential areas of
both, the Study Area exhibits a crime rate that is 127% high-
er than the Control Area in locations that are mixed district-
commercial and residential in nature.
12
1978-1982 Annual Average Major Crime Rates~: Selected Areas
5000
4760
4600
4000
3750
3500
3200
3000
275O
2500
2260
2000
1750
1600
1250
10OO
760
500
25O
O
3075
1768
..::.:::::::::
807
-' :;i::.::-':::::':::': ~:i:::::::
:,:.:.:.:.:.:.:.:o:.:. .,,.~,.,~,,.~.. ::::.:.:.:.:.-,'.',
...-.....-.....-,..-.- .:.:.:.:.:.'_.:.:.:,:.: ;.:.-...-.-..:-:.:,
::::::::::::::::::::: ::::::::::::::::::::: :::::::::::::::::::
::::::::::::::::::::: :::::.:::::.'::::::.-::: .':.'..:::::::::::::::
.:.:.:.:.:.:.:.:.:.:.- ...,.:.:.:.:.:.:.:.:.: :.:.:.-.:.:........
::::::::::::::::::::: ::::::::::::::::::::: ::':':::':':::::::: x.:.:::::
::::::::::::::::::::: :,:.:.:.:.:.:.:.:.:.:. ...'::::.:.:.:,:.:~ ~::::::,:~
................... ~...............,..: ~...,.:.:........,
jTotal Area Coral. Coral,! Res. / I Total Area Coral. Coml.I
Rea. I J Res.
Control Area Study Area--
1341
:::::::::::::::::::::
=====================
Per 10.000 PcJgulatlon
778
.-::::'.::::::::::::
.:.:-:.:.:-:-:~.:
:-:.:.:-'..:.:-:.:-
,: :::::::::::: :.'::'-'
':"-:'X':-:-'-:-:
Res,
SEX-RELATED CRI/~E 5
Crimes of Rape, Indecent Exposure, Obscene Conduct, Child t~o-
· iestation, Adult I~olestatlon.and Commercial Sex were segre-
gated and then aggregated from police printouts of total crime
incidence occurring within the Study Area and the Control Area
for the period 1~78 - 1~82. A total of 153 sex-related crimes
was reported in the Control area during this period, with a high
of 3~ having occurred in 1~7~. 0uring the same period, the Study
Area experienced 1~8 sex-related crimes, reaching a high of 52
in 1981.
Control Area Sex-Related Crimes/Rates · 1978-1982
1978 1979 1980 1081 1962
Rat~ 8 13 16 8 12
Indecem
E, xt~o~Jre 7 10 O 13 4
~ 0 2 0 0
~estat~ 6 10 4 ~ 12
A~II
Molestltl~ 2 3 O I
~x 0 1 1 0 0
Total: 23119.7 S9/33.4 29/24.9 30/25.7
' Pe~ 10.000 Po~ul,,tlon
32/27.4
Total: 183
Study Area Sex-Related Crimes/Rates*1978-1982
(PoDutatlotr-B,5.41)
1978 1078 1080 1081 1982
Ra~e 2 12 11 10 9
Expoa.ure 10 14 12 6 7
Obscene
~ 0 0 0 1 0
Child
Molestitlo~ 6 ~ ~ 11 8
Mo~tatlo~ I O O O 3
Com~'~e~c~l
Se, I 8 16 25 13
Tot&l: 19 t'22.3 43]~:).4 44151.6 82180.9
10.000
~0/46.8
198
14
Sex-Related Crime Rate~ 1978~1~982
Control Area
Study Area
6O
5O
45
40
35
3O
25
20
15
10
!
/
1
/
/
I
/
1
1
!
!
!
!
1
!
33.4
24.9
0
1978 1970 1080 1981 1982
46.8
27.4
't'he ~ume,lcal Instance of Rape, Indecent Exposure, Obscene Conduct, Child Molestation, Adult
Molestation ertl Commercial Sex- Per 10,000 Population.
Whereas sex-related crime rates in the Control Areas varied
from a Iow of 19.7 in 1978 to a high of 33.4 in 1979, the
Study Areas increased from a low of 22.3 in 1978 to its peak
of 60.9 in 1981.
The average sex-related crime rate in the Control Area was
26.2 over the five year period· The rate in the Study Area
was approxlmately 77~; higher than this average during the
same period of time at
Comparing the crime rate for sex-related crimes by land use
categories in the Control and Study Areas, a different pat-
tern than that for major crime rates emerges.
Area
Con t ro
S,tudy
1.
2.
1978-1982 ANNUAL AVERAGE SEX-RELATED CRIHE RATE
BY LAND USE
!
/
Con,mercia1 Coml./Res. '~ Residential
Pop./Crimes/Ann. Rt. --Pop./Crimes/l~n. Rt. Pop./Crimes/Ann. Rt.
379 2 11
523 . ,.7 27
9O2 9 2O
2828 35
2382 29
5210 ~T
25 .
24 '
25
2159 49 45
3395 29 17
5554 7~ 28
219 5 46
1218 23 38
1~37 ~ 39
1015
1203
38
32
70
75
53
63
3656 69 38
1230 31 50
~ loo 41
16
· 1978-1982 Annual Average Sex-Related Crim tes~: Selected Areas
100
96
90
85
8O
70
65
60
55
60
45
4O
35
3O
25
20
15
10
0
26
20
Total Area
Control Area
Per 10.0OO Pol~ulatlon
28
:.::::::::::::::::::::
Coral/ Ra.s.
Res.
Total Area
63
'.'.:-'-i.1.1-;..'.'-- .'-
.'.;...;......o........
;.i-:-:-~.:.:-:.:.~-:.:
::.:.:.:.:.:.:<.:.:.:
· .............-...-.-. ::::::::::::::::::::::
:.:.:.:.:.:.:.:.:.:.:. :::::::::::::::-.:::::: :::::::::::::::::..::::
--:::::::::::::::::::::: i~:i:~:!:i:i:i:i:i:!: :<':':':':':':':':':'
_..'_.:.:.:..'.:.:.:..'.:.
:::::::::::::::::::::~
· .........-.-.-.-..... ::::::::::55:::::::
:.;.;.:....:.;.:..-.;.:. -.'.-...-.'.':.-.-.-
........... ::::::::::::::::::::: :i:i:i:!:!:i:i~:!:?
Comi. Comll
Res.
Study Area
t7
l~hereas major crime rates were similar in residential areas of
the Control and Study Areas, the Control Area rate was substan-
tially higher in district commercial areas and lo-er in mixed
district conznercial/resldentiai areas. In contrast to this, the
sex-related crime rate was uniformly higher in ali land use cate-
gories of the' Study Area, ran.cling from +46~; in residential areas
to +152~; in district commercial/residential areas.
SUHHARY OF FINDINGS
;.
Both the Control and the Study Area experienced a sig-
nificantly higher incidence of major crimes/lO,O00 population
than the IP0 District as a whole. Huch of this increase
would be expected given their location in'generally older,
less affluent and more populous areas of the city.
It is more difficult to explain the distinctly higher crime
rate experienced in the' Study Areas as compared to the Con-
trol Area- 1,090.51 v~ersus 886.34.
This dicotomy is even more apparent in the instance of sex-
related crime rates in the two areas. The average sex-related
crime rate in the Control Areas was 26.2. The Study Areas had
an average rate of 46.4.
o
If the same ratio between the Con.trol and Study Areas estab-
lished for major crime during this period were applied, we
would expect a crime rate that was 23~; higher -or 32.3 - in
the Study Areas. The actual rate of 46.4 is 77~ higher than that
of the Control Area and underscores a d'istinct departure from
the expected. Not only is the rate substantially higher in
the Study Area, but it is twice the rate that would have been
expected from the distribution of crimes genera]ly in Indiana-
polis.
The anomalies demonstrated in the comparison of the Study
Area with the general population and the Control Area will not,
in themselves, establish a causal relationship between Adult
Entertainment Businesses and the crime rates in the immediate
area surrounding them. The fact does remain, however, that in
each subsection of the Sl:udy Areas where adult entertainment is
offered a substantially higher sex-related crime presence ob-
tains over the corresponding subsections of the Control Area
in which no adult entertainment is offered. The same is true
regarding the rate of major crimes.
18
In areas chosen for their similarities other~vlse, an obv.io:~s
difference lies in the presence of one or more adult enter-
tainment establishments.
FOOTNOTES
1. The Incidence File is a computerized listing of all reports
made by police after initlal investigation of an incident
to which they were dispatched. It, therefore, provides a
mOre reliable indicatic~ of crime incidence than the com-
puterized,"Police Run'' file which logs police dispatches
based on prelimlnary information on the incidents.
2. Criminal Homicide, Rape, Robbery, Aggravated Assault, Resi-
dence Burglary, Non-Residence Burglary, Larceny and Vehicle
The f t.
Rape, Indecent Exposure, Obscene Conduct, Child Holestation,
Adult Molestation and Commercial Sex.
Since population estimates were not availabJe for each year
of the survey, the 1~80 Census figures were used because they
were the result of an actual enumeration and, falling at the
mid-point of the survey, they would tend to balance out popu-
lation trends during the five year time span.
5. Sex-related crimes are not isolated and compiled on a routine
basis for the IPD District as a whole. A manual compilation
of these data was proscribed by the time limitations of the
study.
2O
CRIME IMPACT BY AREA TYPE
IMPACT BY AREA TYPE
As it will be noted, sample size poses a distinct problem when
attempting analysis at the small area level. This is particu-
larly true in the-i~stance of mortgage information. Due to
this inadequacy, it is impossible to compare the impact of
adult entertainment businesses on residential property value
below a certain level of geography.
This is not the case, however, with crime statistics. In this
case it is possible to compare sub-areas of the target a'reas
since the comparisons are based on the actual instance of crime
in the area ( unlike mortgage data where average value is the
basis of comparison.)
The sub-area comparisons were based on the nature of the areas
in relation to their land use composition as determined by the
Comprehensive General Land Use Plan of Marion County. Four sub-
areas were of a distinct regional commercial nature, four were
residential in nature and four were of a mixed residential-
commercial makeup.
The three groupings were compared with each other to determine
if crime, from a historical viewpoint, occurred more freouent-
ly in areas of one land use configuration than another.
Whether or not crime frequencies, at l.east in part, are deter-
mined by the land use characteristics in which they were com-
mitted cannot be definitively answered here. Several striking
patterns do emerge, from the comparison, hc~ever.
CRIME FREQUENCIES BY AREA TYPE
Of the 9,829 major crimes committed in the Control and Study
Areas during 1978 -.1982, 27% were perpetrated 'in regional com-
mercial areas, 31% in mixed commercial-residential areas and
42% in predominantly residential areas. In other words, cri~
frequencies were 56~ higher in residential areas than commer-
cial areas while mixed commercial-residential areas were 37%
higher than commercial areas.
The folio.-~ing table displays major crime frequ?ncies for the
five year period by type of area, the existence or non-exis-
tance of adult en£ertainment and specific location.
21
MAd0R CRIME FREQUENCY
1978 1979 ...... ~80?~- 1981 .... 1982
District Commercial
Study Area
No. Keys tone
E. Washington
Control Area
No.. Shadeland
No. Keystone
Mi xed Res./Coml.
Study Area
W. Washington
West 16th St.
Control Area W. Washington
E. Washington
Tot.
83 71 112 87 86 439
150 152 202 186 141 831
233 223' ~ 293 227 1270
38 '41 34 43 84 240
212 217 210 259 249 1147
· -~25~-' ~-~ ~ 302 333 13-~
2657
123 184 190 185 152 834
177 128 140 104 104 653
3oo 312 33o 2~ 2-~ 1-TBT
110 182 211 184 150 . 837
160 151' 13o 139 125 705
270 .333 3-4-f 323 275 15'4~
Residential 3029
Study Area
East 10th St. 219 235 294 242 242 1232
East 38th St. 115 111 165 127 150 668
3- 3- 3- 3- 3- 3- 3- 3- 3-~ ~ ~ ~ 392 1900
Control Area
East 10th St. 211 239 269 210 243 1173
West lOth St. 181 200 244 260 182 1067
~ .~ ~ ~ 392 ~
4140
27~;
42%
The pattern was similar in comparison of the frequency of sex-
related crime within the three areas during the same .period of
time. It was more pronounced, however. Fifty-one percent of the
total occurred in residential environments, while thirty-eight
percent occurred in mixed commercial-residential areas. In com-
parison, only eleven percent of the total occurred in dis-
trict commercial areas.
The following table displays sex-related crime frequencies for
the five year period by type of area, the existence or non-exis-
tence of adult entertainment and the individual locatioos inclu-
ded in the study.
22
District Commercial
Study Area
No..Keystonc
E. ~ashington
Control Area No. Shadeland
~oL Keystone
Mixed Res/Corn1.
Study Area
W. ~/ash ington
Vest 16 St.
Control Area W. Washington
E. Washington
Res idential
Study Area
East loth St.
East 38th St.
Control Area
East loth St.
West 10th St.
SEX-RELATED CRIHE FREQUENCY
!978 1~7% 1980 _1981
- 2 2
- 4 q 8
I 3 1
' '1 3 ' I
1982 Tot.
10 12
q 8
---iT 20
1 5
7 23
- 2 2
1 1 7
' "l 3 9
37 11~
8 3 38
9 10 32
17 13 70
3 8. ~1 8 5 35
4 10 3 8 4 29
1343~8~.
12 18 14 17 8 69
1 5 4 10 11 31"
13 23 ~ 27 19 100
11 13 7 7 11 49
4 5 6 5 9 29
' 15 --Fg . ~j 12 20 7-8
178 5~%
These trends are not easily explained on the basis that '~ahere
there are more people there will be more crime."Community-rela-
ted commercial areas draw clientele from a broad geographic area
and can be expected to attract many times the residential popu-
lation of the immediately surrounding area. This 'is the purpose
of the district commercial zoning designation. Further, the trans-
ient nature of this population could be considered to contribute
to the incidence of certain crimes.
23
20% NATIONAL SURVEY RESULTS
Survey respondents overwhelmingly (80~;) felt that an adult book-
store located in the hypothetical neighborhood described would
· have a negative impact on residential property values of premi-
ses located within one block of the site. Of these, 21% felt that
the property value would decrease in excess of 20~;, while 59~;
foresaw a value decrease of from 1~ to 20~;. One-fifth of the
respondents saw no resulting-cham3e in residential property vel;
ues.
Seventy-two percent of the respondents also felt that there would
be a detrimental effect on commercial property values at the same
one block radius. Only 10~;, however, felt that the effect would
exceed 20% of worth with the majority (62~;) seeing a 1% to 20%
decrease in value. 28% of the survey predicted that :here would
be no negative effect.
While the great majority of appraisers felt that the effect of
an adult bookstore on property within one block of the site
would decrease property values, they felt that this impact fell
off sharply as the distance from the site increased.
At a distance of three blocks, only 36% of the respondents felt
that there would be a negative impact on residential propertie~s.,
whereas 64% felt that there would be no impact at all. Better
than three-fourths (77%) of the survey saw no impact on commer-
cial property at this distance.
In summary:
- The great majority of appraisers who responded to this sur-
vey felt that there is a negative impact on residential and
commercial property values within one block of an adult
bookstore.
- This negative impact dissipates markedly as the distance
from the site increases, so that at three blocks the esti-
mate of negative impact decreases by more than one half
judged by the number of respondents indicating negative
impact at three blocks.
- The majority of respondents felt that the negazive i~r~.act
of an adult bookstore is slightly g~eater for residential
properties than for commercial properties and decreases
less dramatically with distance for residences.
34
14ATIOliAL SURVEY OF APPRAISERS
Impact. of Adult Bookstores On
Property Values
RESIDENTIAL PROPERTY AT ONE BLOCK Z
20+ i 1- 1- Neg. No
20 10 Chg.
'lo'[ PC.T ~ .. I It & I . · I ..- · l ..... I
a'"talllt J,~.~l . .I . II.Z I Jl.I, I . ~.1 I . I1.1 . I .. lid ]
. Z.~.. JZ .J.. Il. I :e .I. lt. I.. . e~
/
I
/
COMMERCIAL PROPERTY, AT O~.:E BLOCK
40-
29-
20+ 11 -
- Neg. No
0 Ch§.
35
NAT I O.NAL
S Y OF APPRAISERS
impact of Adult Bookstores On
P i'ope r ty Values
RESIDENTIAL PROPERTY AT THREE BLOCKS
'°°1
60
40
20.
% 20+
11- 1- Neg. Ho
20 10 Chg.
COMMERCIAL PROPERTY AT THREE 3LOCKS
36
Respondents were also asked to evaluate the impact on residential
property within one block of a number of alternate uses for the
hypothetical site described in the survey.
Of the alternate uses proposed, a clear majority felt that a medi-
cal office or a branch library would increase the value of sur-
rounding residential property. A store-front church, welfare of-
lice, tavern, 'record store, ice cream parlor or video-game parlor
were generally felt to neither improve nor decrease residential
property values significantly. On the other hand, a substant|al
majority felt that a pool hall, drug rehabilitation center or a
disco would decrease property values - although not as overwhelm-
ingly as an adult bookstore.
NATIONAL SURVEY OF APPRAISERS
Impact On Residential Properties
Land Use Value
H i ghe r Lower
Much Some Same Some Much
Store-front church 5% 20% 58% 16% 1~;
Pool hall 1% 8:~ 45% 38%
Welfare office - 12~[ 46% 33%
Neighborhood tavern 2~; 18:~ 45% 32~
Record store 8~; 27~; 61% 5% -
Medical office 24% 38% 35% 2% -
Drug rehab Center - 7% 35% 42% 1']%
O°
Ice cream parlor 15% 3 ~; 53% 3% -
Video-game parlor 1~; 18~; ~O~ 27~
Disco - 11% 42~ 35%
Branch Iibrary 24% 34% 3~% 4% -
37
The surve~--~'isc~ asked the degree to which adult bookstores affect
property values generally and the basis for this opinion.
Twenty-nine percent of those expressing an opinion saw little or no
effect as the result of adult bookstores on surrounding property
values. They based this opinion on their own professional exper-
ience (13%), the observation that this use usually occurs in an
already-deteriorated neighborhood (2q%) and the feellng that
only one such adult entertainment use would be inconsequential.
A substantial-to-moderate negative impact was projected by 50%
of the respondents. Twenty-nine percent felt that this was be-
cause it attracted "undesirables" to the neighborhoods in which
they were located, while 14% felt that it creates a bad image of
the area and 15% felt that the use offended pervailing co~nun-
ity attitudes so that home buyers/customers would be discouraged.
13% based their opinion on profes.s!.o..n..al e..x~eri.e.nce.
A number of survey respondents (~0%) saw the potential impact on
a neighborhood as being contingent on certain variables. 28%
of these felt that it would depend on the existing property val-
ues in the area as well as the subjective values of its resi-
dents. 23% felt that development standards such as facade and
signage would determine impact and 11% saw the nature of the ex-
isting commercial area and its buffering capacity as being most,
important.
100 -
8O
6O
20-
IMPACT ON VALUES
None/ Subst/
little Mod.
Cont.
38
(
Impact Of Adult Bookstores on
Property Values
· ~, ,--?.?,o: .'.o :_g.: ;.~,.:. 1_1~' ', ...
· ¢' .-~ ....:.:.:.~i.~-~.. '"'
-.. !:5.-_.=:5 ._-~!- .... -- "---
"'"'--~:'[' ~ ~-_!~ j-:--!.'.:.' ,T-_ !.~ '-"'--:-
'ii "
.! '.i .i-i'.
, ..... ,,,,..: .:.:...,-:..,::.
'"'- :::-.' .i: ~ ~- ~
· ......... a? ,' ~.~ . .'~.-.~--~-
.... : .... : .................
='-2-:-- .... ~- '~'-:-~--~....
3~
G
100% MSA SURVEY
The 100~; survey of Metropolitan Statistical Areas similar in size
to Indianapolis produced results that were consistent in virtually
ali respects with the results of the 20~; national survey.
As in the nationwide survey, respondents ovenvhelmingly (?8~)in-
dicated that an adult bookstore would have a negative effect on
residential property values in the neighborhood described if they
were wJ.thi, n one block of the premises. 19~ felt that this depreci-
ation woul'd"J~e'-in excess of 20~;, whereas $9~ foresa~v a decrease in
value of from 1~; to 20~;.
Sixty-nine percent saw a similar decrease in commercial property
values within one block of the adult bookstore. As in .the national
survey, far fewer (only 10~) felt that a devaluation of over 20~;
would occur. The majority ($9~;) sa~ the depreciation as being in
. the 1~ to 20~; range.
Once again, the negative impact o6served within a one block radius
of the adult bookstore fell off sharply when the distance was in-
creased to three blocks - although, judged on the number of those
indicating no impact, there would 'appear to be more of a residual
effect on residential properties t. han On commercial properties.
39~ of the appraisers felt that a negative impact on residential1
properties would still obtain at three blocks from the site. Only
three percent felt that this impact would be in excess 'of twenty
percent. The remaining 36~; felt that depreciation would be some-
where in'the one to twenty percent range. 611; saw no appreciable
effect at all at three blocks.
Commercial property was judged to be negatively impacted at three
blocks by 23~ of the survey. 76~; saw no change in value as a re-
sul t of the' bookstore.
In summary:
- Appraisers assigned a negative value to an adult bookstore
located within one block of residential and commercial pro-
perties at an approximate three-to-one ratio.
- At a three block distance, this 'ratio tended to be reversed.
- 'The number of those indicating a decrease in value at three
blocks decreased at only one half the rate for residential
property as for con~mercial property.
V£Y OF APPP.~,ISFRS
II, PACT OF ADULT BOOKSTORES 0Ii RESIOE:ITIAL PROPE~~ONE'"'-Bt.'~t:I¢"' ....
Dec rease~20~
" 11:J;-20;
Decrease
.o Decrease
~///,,/~/~
~//////////~
~///////////////~ ·
illlllllllllllllJllJllllllJllJli
~; 0 20 6o 60 80
HS !~ur¥
~i HS~ .... OF APPP, AIS[RS
I HPACT OF ADULT BOOKSTORES O!t COHHERCIAL PROI~'R-T4BS~-AT-,ONE-' BLOCK'
Decrease>20~
Dec tease
Decrease
~///////~_
~/////////////////~
IIItlllJ IIIIJJlJJJlliit!lllJ!llJJilillillJJJilll
.~: 0 20 /40 60 80
.......... ?'2: ' 2~: :'! ~- '-
42
· II-iPA£T OF ADULT BOOKSTORES OIJ RESIDENTIAL PROPERTY A': THREE BLOCKS
% 0 2O
60 80
~i~ HSA~J~VEy OF APPRAiS.CRS
IHPACT OF ADULT BOOKSTORES ON COHHERCIAL PROPERTY AT THREE BLOCKS
~ 0 20 40 6O
Oecrease~20%~
,~-,o: ?/////~
8O
In response to a question asking appraisers to rate the impact
of a number of different commercial uses at the same location on
residential properties within one block, the majority fe]£ that
a medical office or a branch library would have a favorable im-
pact while a welfare office or drug rehabilitation center would
have an undesireable impact. The majority felt that a store-front
church, pool hall, neighborhood tavern, record store,.i_cq~ream
parlor or a video-game parlor would not have much of an impact
and were about equblly.split as to whether the effect of a disco
would be neutral or negative.
MSA SURVEY OF APPRAISERS
Impact On Residential Properties
Land Use Value
Hi oher
Much Some Same
Store-front church 4% 24% 52%
Pool hall 1% 12% /48%
Welfare office 1% 13% 41%
Neighborhood tavern ' 17% 52%
Record store 6% 29% 54%
Medical office 20% 37:~ 39q;
Drug r. ehab center - 6% 39%
Ice cream parlor 14% 29% 52%
Video-game parlor 1~; 17% 51%
Disco - 13~; 44%
Branch library 24% 37% 34~;
Lower
Some Much
33t
37~ 7~
10~ -
40t
5% -
28~
33% 10%
5~
45
-~--- --~-----t~-~es'p'onse to the question about thelr evaluation of the impact
of adult bookstores generally on surrounding property values,
of those expressing an opinion felt that there would be little or
no impact ~vith such a use. They principally based this opinion on
their experience as appraisers (20~;) and the observation that such
uses usually located in areas that had already deteriorated
/~7~; of the survey felt that there is a substantial-to moderate
impact. Their opinions were based on professional appra.i.s~l ex-
perience ($8~;), and the observations that: given current mores, "
an adult bookstore would discourage home buyers and customers (1/~,~);
the use precipitated decline and discouraged improvement (11~);and,
it would attract "undesirables" to the neighborhood (2~)~;).
The nature of this impact on property was contingent on a number
of factors in the.minds of 32~; of the respondents. 13~; felt that
it depended on local attitudes and the adequacy of legal controls
on their operation. Exterior factors such as signage and building
facade quality were seen by 16~; as the determinant, ~0~; felt
the impact would be directly re)ated to the values (both rnonitary
and human) prevalent in the neighborhood. And 20~; felt that the
answer depended on whether or not the business was ]ikely to at-
tract other such businesses.
Effect
Little
Substanti al
Con t i ngen t
EFFECT OF ADULT BOOKESTORES ON PROPERTY VALUE
HSA SURVEY OF APPRAISERS
I !
~; 20 40 60
~7
LITTLE OR NO EFFECT
EFFECT OF ADULT BOOKSTORES ON PROPERTY VALUE
HSA SURVEY OF APPP, AISERS
0 = No reason given.
1 = Appraisal exper-
ience.
2 = Area in decline.
3 = Area in decline.
4 = Not an intense
USe.
5 = Only one does
not matter.
6 = Commercial buffer.
7 '= Market adjusts
quickly,
8 = Tolerated by
current mores.
9 = Other.
48
49
~C: ·
°~
0
0
.J
0
LLJ
I
............... _..: . .. . 'r Ii '
x ~ : : · .',--:.' --y---.?--.. ....... ~. ....
L-:'-'i'~::.:'i:'- - 'i --:-- .... :'-'":~'
~ -. :..-.- ?..: . .--..~.i-..-.3
3,°.'..'._:. .'-.~' . ........ _..
. . ............... .'-.!: .~.; ....
' '' i .... , "~'
.}
...... -~---'. ' ~.--.' .... ' .... .' .... .. .... - · , I
::=' , ': .:',_.~...=...,.=...n.'.'.__ _ _...__ . :~
................. : .... :"'*'"' ": .... i :'~."[ :-:-."i >
': ' It ', :' : t " , l: I ' :
. ,. ,. :...,
:':" ~ .... : ....: .... : ....: ....: ....: ":..': i-':::~--.::i-:
SO
SUHf~RRY OF FINDINGS
The great majority of appraisers (75%) who responded to the national
survey of certified real estate appraisers felt that an adult book-
store located within one block would have a negative effect on the
value of both'residential (80~) and commercial (72~) properties.
of these respondents foresaw an immediate depreciation in excess of
At a distance of three blocks, the great majority of respondents (71%)
felt that the impact was negligible on both residenti~l (6/4%) and
commercial (773) 15ropertles. Even so, it would appear that this
residual effect of such a use was greater for residential than for
commercial premises.
In answer to a survey question regarding the impact of an adult book-
store on property values generally, $0~ felt that there would be a
substantia]-to-moderate negative impact, 30~; saw little of no im-
pact, and 20:~ saw the effect as being dependent on factors such as
the predominant values (property and socia]) existing in the neigh-
borhood, the development standards imposed on the use, and the abil-
ity of an existing commercial node to buffer the impact from other
USeS.
The results of the 20% national sample and the 100% survey of Met~'o-
politan Statistical Areas were virtually identicai. The one signi-
ficant variation that did occur was in the response to the question
asked as to the effect of adult bookstores on property values gener-
ally. Respondents in the MSA survey placed more emphasis (32% versus
20%) on conditional factors at the site.
51
FOOTNOTE S
1. Metropolitan Statistical Areas (MSAs) surveyed at I00% were
chosen on the basis of having a one to two million population
at the time of the 1980 U. S. Census. They ~/ere: Phoenix,
Arizona; Sacramento, San Diego and San Jose, California;
Denver/Boulder, Colorado; Hartford, Connecticut; Fort Lauder-
dale, Miami and Tampa, Florida; Indianapolis, Indiana; New
Orleans, Louisiana; Kansas City, Missouri; Newark, New Jersey;
Buffalo, New York; Cincinnati, Cleveland and Columbus, Ohio;
Port.lan. d, Oregon; San Antonio, Texas; Seattle, Washington; and
Milwaukee, Wisconsin. Although slightly outside the population
parameters for this selection, Louisville, Kentucky and Atlanta,
Georgia were al~o included.
2. Regional designations used were those .employed by the U. S. Bureau
of the Census for the 1980 Census. The data were processed and
crosstabulations I~erformed using the Statistical Pack. age for
the Social Sciences.
3. The discrepency between the number of survey responses and the
number of responses to the question in this and subsequent'tab-
les is the result of some respondents having omitted answers to
questions 6 and 7 of the survey.
52
APPENDIX I
Area Maps
NOTE
For the purpose of this study,
the maps included in this Ap-
pendix categorize existing land
uses within the Study and Con-
trol Areas as having a Resi-
dential or a District Commer-
cial Character.
All dwelllng district, neighbor-
hood-related commercial and spe-
cial use zoning classifications
are designated as being of "Res-
idential Charac.ter".
'More intense commercial uses,
industrial uses and district-
related special uses are Consi-
dered to have a "District Com-
mercial Character".
ADULT ENTERTAI
NHEt]I~FUS 1 NESS STUDY
STUDY AREA LAND USE
3155, 3201 East lOth St.
Residential Character
District Commercial
Character
Adult Entertainmen~ Site
I-I
ADULT ENTERTAINMENT BUSINESS STUDY
STUDY AREA LAND USE
5429-31 East 38th St.
~ Residential Character
~ District Commercial
WES
)NTGOMERY
PARK
-ir.- .
!
Character
Adult Entertainmen~ Site
I-Il
ADULT
EtlTE P. TAI :,lt~l~:, BU., I t~ESS
S'TUDY
'0
!
I
_.,* I I
I I
I I I
I m I
I
I
I
I
I
40~
I I
I
WASHINGTON
HIGH SCHOOL
..
CO NR ,4 IL ..... .; _
FMC
CHAIN DIVISION
STUDY AREA LAND USE
2101 West Washington St.
Residential Character
District Commercial
Character
Adult Entertainment Site
I-III
ADUL'T ENTERTAINMENT BUSINESS STU1)¥
STUDY AREA LAND USE ~
3535 West 16th St. ,
["----q Residential Character 'i
~ District Commercial 3
Character ~
O Adult Entertainment Site ~
I- '.V
AtK. L-r EI,ITE RTAI NMEII~" BUS I N~SS S'I'UD¥
11
I I
STUDY AREA ~ND USE
6116-6122 East Washington St.
~ Residential Ohara~ter
~ District Gommercial
Character
I- V
~,DULT EhlTERTAINI".EI'IT BUS I.IESS STUDY
STUDY AREA LAND USE
4441-4475 North Keystone Ave.
r-'-'--I Residential Character
~ District Commercial
Character
0 Adult Entertainment Site
FORU~,I
Z855
~O\
I-vi
(
ADULT ENTERTAINHE:IT BUSINESS s'ruD¥
./
CONTROL AREA LAND USE
2500 East 10th St.
Residential Character
Distric! Commercial
Character
Control Area Centroid
I-VI I
ADULT ENTER'I'AIdHEI4T BUSINESS STUDY
CONTROL AFIEA LAND USE ~'~. :',-1 ~i
2300 West 10th St.
r-'---] Residential Character
~ District Commercial
Character
O Control Area Centroid
I .Jl ; ; I '; ]
!
I-VIII
ADiJLT ENTERTAINHENT BUSIHESS STUDY
E LLE N BERGER
i
PAR K
~//LI
5~
TON
t!
CONTROL AREA LAND USE
5420 East Washington St.
Residential Character
District. Comm ercial
Character
Control Area Centroid
I-IX
ADULT E;~TERTAI NHE~'BUS I
NESS STUDY
i
; I
,
I
I
J I
'
I
'CONTROL AREA LAND USE
2600 West Washington St.
Residential Character
District Commercial
Character
Control Area Centroid
\
%
I
I
I
I
I
L___I
WASHINGTON
__ HIGH SCHOOL
J.,4 C
CONRAIL ...... ~
,
I
FMC
CHAIN DIVISION
I-X
~',3ULT ENTERTAINHENT BUSINESS STUDY
,~ ' ~i ' I .... I.! ! I -)-~'" I ! s · , ; · . .,.
--
/31
· ' ~:~' ~ :;.' ':~" ~" -' : ~ ~ ~. 4"
:1,~, I~_ ! ._ 1~~- ~' I ~ II~t ~ ~ /';~' !"~:L~ I,~,~
~:~! ~lzll - .I .~f-~-il.~l .Iz· l~."tT',.tt'L~~~t'''''~-
...... i i'
- : ,.: J-~i ,"t ,-.., J
CONTROL AREA LAND USE
750 North Shadeland Ave.
Residential Character
District Commercial
Character
Control Area Centroid
140
I
I
E Al S T G A-r~
I
/
S HI O 'l~ P I N
CiE N TER
I
I
I
I-Xl
ADULT ENTERTAli;HEI4T BUSIIIESS STUDY
\ I
CONTROL AREA LAND USE
5200
C)
North Keystone Ave.
Residential Character
District Commercial
Character
Control Area Centroid
11 I I
I
I
I
I
J
I
I
I-Xll
APPENDIX I I
Appraiser Survey
~ WILLIAM H. HUDNU'[. III
" MAYOR
DAVID E. CARLEY
DEPARTMENT OF METROPOLITAN DEVELOPMENT
January 20, 1984
Dear HA! Hember:
The City of Indianapolis, Indiana is currently in the process of
preparing a new local ordinance that will regulate the location
of adult entertainment businesses in relation to residential
neighborhoods in our community.
in an effort to provide a basis for the proposed legislation
that is equitable and legally defensible, I would like to ask
your help in establishing a "best professional opinion" on the
matter. As a real estate professional, the opionions you share
with us on the enclosed survey forms would be very valuable to
us in the development of a positive legislative approach to this
difficult local issue.
Thank you very much for your assistance.
cc. L. Carroll
I1-1
1860 CI 1' Y-C O UN T Y 8 UILDI t4G o INDIANAPOLIS. Itd D I At~ A 4 (~ 204
D~vi.,,,on of Research
SCHOOL
Bl~rm ngt ~j[ia nal~hs
loth and lee Lane
Bloomington. Indiana 474~
(812} 337-5~7
TO: Professional Real Estate Appraisers
FROM: Indiana University, School of Business, Division of Research
:~Please help us in this brief ~ational survey. The information provided will
help clarify an important question. Read the following information about a
hypothetical neighborhood and respond to a few questions in .terms of your
professional experience and Judgment.
A middle income residential neighborhood borders a main street that contains
various commercial activities serving the neighborhood. There is a building
that was.recently vacated by a hardware store and will open shortly as an
adult bookstore. There are no other adult bookstores or similar activi~-~es in
the area. There is no other vacant commercial space presently available in
the neighborhood.
Please indicate your answers, to questions 1 through 4 in zhe blanks provided,
using the scale A through G.
SCALE:
A Decrease 20% or more
B Decrease more than 10% but less than 20~
C Decrease from 0 to. 10X
D No change in value
E Increase from 0 to
F Increase more than 10X but less than 201
G Increase 20I or more
1) How would you expect the average values of the RESIDENTIAL
property within one block of the bookstore to be affected?
2) How would you expect the average values of the COMMERCIAL
property within ~ne b2ock of the adult bookstore to be affected?
3) How would you expect the average values of RESID~IAL property
located three blocks from the bookstore to be affected?
How would 7ou expect the average values of The COMJM~RCIAL property
three blocks from the adult bookstore to be affected?
- over -
!1-11
Suppose the available commeTc~al building is used for somethi~gotheT thau
an adult bookstore. For each of the following potential uses, would the
average value of residential property within one block of the new busl~ess
be...
A much higher
B somewhat higher than if an
C about the s~m~ adult bookstore
D somewhat lower occupied the site.
E much lower
In the space provided, write the appropriate letter for each potential use.
"Store-front church Drug rehabilitation center
Pool hall Ice cream parlor
Welfare office
Video-game parlor
Neighborhood tavern
Disco
Record store
Branch library
Medical office
6) In general, to what de~ree do you feel adult bookstores affect property
values?
7) ~y do you feel this way?
8) ~ere do you practice?
City
State
Your name
(If you prefer not to give your name, please check here )
Thank you for your cooperation. Please return thls questionnaire tn the
postage paid envelope provided for your convenience.
Il-III
APPENDIX III
Land Use Control of
Adult Entertainment
APPENDIX I I I
LAND USE CONTROL OF ADULT ENTERTAINMENT
LEGAL .BAS I S
Zoning has traditionally been defined as a process by which a
municipality legally contro]s the use which may be made of pro-
perty and the physical configuration of development upon tracts
of land within its jurisdiction. This is accomplished by means
of zoning ordinances which are locally adopted to' divide the 'land
into different d~stricts permitting only certain uses within
each distri'ct for the protection of public safety, we]fare,
health and morality. 1
Zoning regulations not only regulate the use to which buildings
or property may be put within designated districts, but also the
purpose or object of the use beyond the mere conditions or cir-
cumstances of the use.2
In a 1920 landmark decision, the New York Court of Appe_als up-
held New York City's comprehensive zoning legislation,~ and re-
affirmed this legislation as a proper exercise of the city's
police powers.. -.
In 1926, the practice of comprehensive zoning received substan-
tial support when the United S£ates Department of Commerce pro-
mulgated the Standard State Zonin9 Enablinq Act. This Act be-
came the model for most of the early zoning enabling legisla-
tion in the country.'
While the courts have reaffirmed that municipalities are proper-
ly exercising their police poweFs through zoning regulation, it
is generally held that they have no inherent p~.,er to zone ex-
cept (as is the case with the police power itself) as such power
is delegated to them by the state legislature through statutory
enactment. The right of state legislatures to delegate compre-
hensive zoning power to municipalities, on the other hand, is
uniformly recognized by the courts.4
Because municipalities in the state had to be enabled to exercise
zoning powers within their jurisdictions, the Indiana State
Legislature, by means of enabling le. gislation, delegated this
power to local units of .government.
r-onrroi of the use of private land Shay.Stably raised a number of
constitutional questions. In the landmark 1~326 case of Euclid
v. Ambler Realty Co.6, the United States Supreme Court upheld the
city of Euclid, Ohio's municipal zoning ordinance which had been
claimed to involve an unconstitutional deprivation of property
by deciding that comprehensive zoning ordinances are a proper
II1-1
exercise of the police po~er and do not constitute an unconstitution-
al deprivation of property. This position was reaffirmed by the
Supreme Court of the United States in 1927.7
Thus, the general legality of zoning is established beyond doubt.
Subsequent decisions by this courtv established that such ordin-
ances, however, could be unconstitutional when applied to a par-
ticular property. This established the basis for the system unde~
which the City of Indianapolis currently operates where each var-
iance or rezoning request is decided on its own merits.
THE PUBLIC $/ELFARE
The police power authorizes a government to adopt and enforce all
laws necessary to protect and further the public health, safety,
morals and general welfare of its citizens.9
Limitations on the exercise of zoning power are essential'iy the
same as those restricting the police power under the U. S. Consti-
tution, i. e., they must be reasonable and guarantee-due process
and equal protection. It may not be exercised in an unreasonable,
oppressive, arbitrary or discriminatory way. Zoning laws, then,
must have a real, substantive relation to the legitimate govern~
mental objective of the protection and furtherance of the public
health, safety, morals and general welfare of citizens.
The'public welfare, in these contexts, 'means the stabillzation
of property values, promotion of desirable home surroundings, and
happiness,10 and embraces the orderliness of community growth,
land value and aesthetic objectives11 and is reasonably design-
ed to further the advancement of a community as a social, econom-
ic and political unity.12
C0t~TROL OF ADULT ENTERTAINHENT13
Reacting to the increased availability of pornography in the United
States and attendant pressures at the con~nunity level for its con-
troi, a number of municipal governments have addressed the pro-
iiferation of adult entertainment businesses through, among var-
ious methods, land use controls. The validity of such an approach
was upheld in 1976 in the landmark decision Youn.q v. American
Mini Theatres, Inc.14 in which the Court upheld a Detroit zoning
ordinance which prohibited more than two adult movie theaters or
other sexually-orientated enterprises from locating within 1000
feet of one another or certain other designated businesses. Against
II1-11
attacks grounded in the First and Fourteenth Amendments to the
Constitution of the United States, the Court sustained the ordin-
ance on the dual bases that:
The ordinance was a reasonable response to demonstrat-
ed adverse 1and-use and property value effects asso-
ciated wi th sexually-oriented enterprises; and
the ordinance silenced Do message or expression but
merely placed geographic restrictions upon where such
expression could occur.
While an exhaustive analysis of the Youn? decision is beyond the
scope of this discussion, .the following generalized principles
may be gleaned from the plurality, concurring and dissenting
opinions of the Justices. First, hostility to constitutionally
protected speech is an impermissible motive. The more apparent
and rational the relationship of the adult use restrictions to
recognized zoning'objectives, such as the preservation of neigh-
borhoods and the grouping of compatible uses, the greater the
likelihood that the restrictions will be upheld.
Second, even a properly motivated ordinance will be invalidated ...
if it unduly burdens first amendment rights. For example, an
ordinance imposing locational restrictions that are so severe
as to result in an inability to accommodate the present or anti-
cipated number of adult businesses in a municipality will cer-
tainly be struck down. The Youno court repeatedly .moored its de-
cision upholding the Detroit ordinance-upon the finding that
numerous sites complying with the zoning requirements were a-
vailable to adult businesses and that the market for sexually-
explicit fare, viewed as an entity, was therefore ~essentialiy
unrestrained".
Third, ordinances which are so vague in wording and definitions
that a non-pornographic entrepreneur is unclear whether he falls
within its proscriptions may be violative of due process. A
vague ordinance may operate to hinder free speech through use of
language so uncertain or generalized as to allow the inclusion of
protected speech within its prohibitions or leave an individual or
law enforcement officers with no specific guidance as to the
nature of the acts subject to punishment.
Finally, an ordinance which authorizes the exercise of broad
discretionary power by administrative officials to determine
which adult business will be allcxved to operate,' especially if
the exercise of such discretion is not grounded on objective,
ascertainable criteria, will probably be disapproved as contrary
to the precept.that, in the First Amendment area, "government may
regulate only with narrow specificity".
II1-111
Any community, then, which would employ its zoning power to regulate
adult uses within its jurisdiction must be particularly concerned
that the adoptive ordinance be demonstrably motivated by and found-
ed on sound land use principles, it all~v reasonable accommodation
for such uses within its jurisdiction, and that it clearly define
...... both the nature and regulations of the use in order to avoid, to
the exter~t.possible, the need 'for subjective interpretation of each
~' proposed use.
The Youncj decision has encouraged a great amount of experimentation
on the part of municipalities in an effort to prevent deterioration
of their commercial districts and adverse impact upon adjacent areas.
The effectiveness of these innovations will be determined by time
and the legal tests to which they will be subject as :his business
segment establishes itself.
For the time being, h~vever, this decision encourages an approach
in which localities have tended to control the siting of adult
tertainment businesses on the basis of land use.
III-IV
FOOTNOTES
1. Cf Smith v. Collison, 119 Cap App 180, 6 P2d (1931); Oevene¥ v.
Bd. of Zohinq Appeals, 132 Conn. 537, 45 Ad2 828 (1946); Toulouse
v. Bd. of Zoninq Adjustment, 147 Me 387, 87 Ad2 670 (1952).
2. Cf American'$iqn-Co__z_V.._Fowler, 276 SW2d 651 (Ky'1955).
3- Cf Lincoln Trust Co. v, Williams B'l.dq. Corp., 229 NY 313, 128
NE 209 (1920).
4. Jonas v. Fleming Town Bd.& Zoning Bd. of Appeals, 51 Ad2d 473,
382 NYS 2d 394 (4th Dep't 1976).
5. I.C. 36-7-4.
6. Euclid v. Ambler Realty Co., 272 U.S 365, 47 S Ct 114, 71 L Ed
303 (1926).
7. Cf Zahn v. Bd. of Pub. Works, 274 U.S. 325, 47 $ Ct 574, 71 L Ed 1074 (1927); and Garieb v. Fox, 274 U.S. 603, 47 S. Ct. 675,
71 L Ed 1228 (1927) .....
8. Cf Sup. Ct. in Nectow v. Cambridge (U.S. 183, 48 5. Ct. 447,
72 L Ed 842 (19~'8).
9. Cf Scrutton v. County of Sacramento, 275, Cai App 2nd, 79 Cai
Rptr 872 (1969); Troiano v. Zoning Comm'n of Town of No. Bran-
ford, 155 Corm 265, 231 A2d 536 (1967); and, Trust Co of Chicago
v. City of Chicago, 408 Ill 91, 96 NE 2nd 499 (1951).
lO. Cf State v. Bessent, 27 Wisc. 2d 537, 135 NW 2d 317 (1965).
Il. Ibid., and J.D. Construction Co. v. Bd. of Adj., 119 NJ Super 140,
290 A2d 452 (1972).
12.1bid., and Fischer v. Bedminster Two., 11 NJ 194, 93 A2d 378 (1952).
13.For a more complete discussion of this subject, see Mathew
Bender, Book V, Chapter Ill, 5ec~cions 11.01,11.O2 and 11.03.
14.Cf 421 US 50, 96 S Ct 2440, 49 L Ed 2d 310, reh denied 97 S Ct
191 (1976), rev'd 518 F2d 1014 (6th Cir 1975)-
IlI-V
{~ajor Crimes /
1978-198~elected Areas
Commercial I.~ 2657
Study ~"~~~ 1270
Control :,~~ 1387
Residence/
Commercial ' 3029
Study. ~'~~ 1487
Control :~~~ 1542
Residential ~~'~=~t_~l-' , ..... ,-~,~"-~-,.~ 4140
Study
Control '.~~ 2240
0 1000 2000 3000, 4000 -'
I
5000
S~!~Related Crimes /
.1978-1~'2, Selected Areas
Commercial
Study
Control
Residential/
Commercial
Study
Control
Residential
Study
Control
37
~ 28
~~ ~.-.-~---.~..-.- - :...,] 134
~~ 7O
64
~'. ~,~-.'31 178
400
I I I
0 50 100 150
200 250 300
SUI~HARY OF FINDINGS
There appears to be a strong correlation between crime frequency
and the residential.character of neighborhoods, i.e., the more
residential the nature of the neighborhood, the greater is the
instance of crime in thai: neighborhood. Crime frequencies were,
in fact, fifty-six percent higher in residential areas than dis-
trict con~nerclai areas.
.The above correlation is even more acute when considering sex-
related crimes. Sex-related crimes occur, red four times more fre-
quently in substantially residential milieus having one or more
adult entertainment businesses than in commercial environments
having one or more such businesses.
REAL ESTATE IMPACT
REAL ESTATE IMPACTS
This study also undertook the quantification of possible effects of
the proximity of adult entertainment businesses on the value of
residential properties within a one thousand foot radius of their
locationS. :
In examining the potential Impacts, three sources of residential
property values were investigated: i.e., Indianapolis Residential
Multlple Listing Summaries (MLS) of the Metropolitan Indianapolis
Board of Realtors, the 1980 Census (tract and block occupied,
single-unit housing valuation data); and, annual lending Institu-
tion statements under the Federal Home Hortgage Disclosure Act ~MDA).
Summary data from the MLS were available over the period 1979 -
1982, while actual mortgage values reported by lending institutions
were available for the period 1977 - 1982. The U.S. Bureau of the
Census provides homeowner estimates of home value at the time of
the 1980 Census (April !, 1980).
The data available from these three sources differ in other ways.
The i980 Census, while relying on homeowner estimates of the worth
of property, is a 100 percent survey' and is described down to th~
block level. Home Mortgage Disclosure Act data provide a record
of actual mortgages processed and reported by local lenders (only
a portion of the total volume). The lowest geographic level at
which this information is available is the Census Tract and, even
at this level, at times poses a difficulty with the available
sample size. Multiple Listing Summaries generally reflect an esti-
mate of worth based on current market conditions for the area and
can be assembled at virtually any geographic level since they are
listed by address. As in the case of the Mortgage Disclosure Act
statements, however, there are at times problems with the suffi-
ciency of the sample size at the smell area level.
Each of the data sets presents some weaknesses. Although the 1980
Census only reflects an estimate of housing value at one point in
time, it has the advantage of being a 100 percent survey of occupied,
single-unit housing. The other two sources offer time series data
over periods of four and five years. They have the liability, how-
ever,-of sometimes lacking a sufficient sample size at the small
area level in any given year to allow an acceptable level of statis-
tical confidence.
Due to these characteristics of the data, certain modifications
were made.-in-t~e study's original intent. Rather than doing annual
comparisons of housing value, 1979 was chosen as the comparison
year and the .1980 Census data set chosen due to the ability to
summarize it at the county, tract and block level.
27
The geographic levels of comparison were the County as a whole,
the Census Tract or Tract cluster in which the Study or Control
Areas were located and the areas within a 1000-foot radius of the
Study and Control location centroids.
A next step was to use the data availab]e on real estate activity
in the Multiple Listing Summaries to establish market performance
between !-979 and 1982 in both the Control and Study Areas~ The
results were compared to real estate activity in the residential
market of Center Township which, in terms of value and general .-~
housing condition, most closely resembles the two areas among the
nine Marion County townships.
CoOMPARISON RESULTS
AVERAGE MORTGAGE VALUES - 1.979
Marion County1
$ 41,854
1
Tract/Tract Clusters
[ Tract/Tract Clusters2 ]
1
1000-Foot Radius
[ lO00-Foot Radius3 ]
Contro] Area§
Study Areas
31,858 $ 28,003
27,872 ] [21,605.1
· 23,721 24,616
16,038 ] [23,823 ]
1. Source:
2. Source:
3. Source;
1980 Census. -
Home Mortgage Disclosure Act Statements.
Residential Multiple Listing Summaries.
Comparison of the )980 Census data would indicate that the value
of housing in the areas addressed in this study are from 40 to 73
percent below the Marion County average. 'While the average value
of housing at the census tract level was somewhat higher in the
census tracts in which the Control Areas were located than those
in which the Study Areas were located ($31,858 vs. $28,003), the
opposite was true when comparing the target areas themselves.
Houslng values within lOOO feet of adult entertainment businesses
in the Study Areas were greater (although by a lesser margin) than
those in the Control Areas ($24,616 vs. $23,721).
* Whereas the sample size is sufficient in most years to provide
acceptable confidence levels for mortgage ~verages, the sample is
only marginally acceptable in 1981 and 1982 for the Control Area.
28
This finding is borne out by an examination of actual mortgages
executed within the affected census tracts of the Control and
Study Areas, as well as real estate listings at the lO00-foot
level.
Using mortgage and real estate listing data we find that, while
consistent with the Census data findings, the disparities were
more acute. Average mortgages at the tract level were ~2~872 vs.
$21,605 in the Control and Study Area tract clusters respectively.
At the IO00-foot level, real estate listing values in the Control
Areas dropped to $16,038 while Study Area listings increased by
approximately i0 percent over the average mortgage value in the
tract clusters of the Study Area.
It ~ould appear that, whi~e property values at the tract cluster
level are appreciably higher surrounding the Control Areas,
housing within the Study Areas themselves is, on the average, of
distinctly higher value than housing stock in the Control Areas.
TIME SERIES ANALYSIS RESULTS
During the period 1979 .through 1982, mortgages processed in the
Control Areas of the study showed an average annual appreciation
rate of +24.7 percent. During the same time frame, mortgages
appreciated at an average annual rate of only +8.7 percent in the
Study Area. in comparison, residential mortgages in Center Town-
ship appreciated at a +16.7 percent average annual rate for the
period.
AVERAGE MORTGAGE VALUES
1979- 1982
Control Area1
Study Area1
Center Township2
1979 1980 1981 1982
$16,038 $21,687 $22,650 $28,420
23,823 25,432 30,964 30,090
16,100 17,178 18,903 25,099
1979-1982
~ Chanoe
'+ 77%
~ 26%
+ 56%
l.Source:lndianapolis Multiple Listings for Residential Prop.
2.Source:Home Mortgage Disclosure Act Statements.
29
MORTGAGE VALUES
Change From Base Year {197'3)
Center Township -
50-
25'
-25-
,,~ tudy Area
......... / Co:~trol Area
-50- ~ i
lg7g I980 1981
I
1982
REAL ESTATE LIS.T. INGS
lOO~
% Chanqe From Base Year (1979)
75-
25-
-25-
-50-
-75-
-lO0-
Center Tc~vnsh i p
Study Area
Con t roi Area
3O
The average value of mortgages from 1979 to 1982 in Center To~n-
ship increased by 56 percent while Control Area values Increased
by 77 percent and the Study Area by 26 percent.
RESIDENTIAL REAL ESTATE ACTIVITY
1979 - 1982
),,979 ,1980 1981 1982 ~ Change
Control Area Listings1 29 23 15 15 -
~tudy Area Listings1 28 28 26 29
Center Township Hortgages2 898 635 377 182 - 80~
Source: Indpls. Hultiple Listings, Residential Properties.
Source: Home Mortgage Disclosure Act Statements.
Both Center Township and the Control Area followed general market
trends in the vo)ume of real estate activity, failing by 80 per-
cent and 52 percent, respectively, from'1979 to 1982. Once again,
the Study Area performed in an atypical fashion, actually regis-
tering a slight increase in volume (4 percent) over the ssme period.
CONCLUSIONS
While bearing in mind the above-mentioned difficulties in certain
cases with the sample size at the sub-area level, the following
observations may be made on analysis of the data.
A comparison of residential real estate listings indicates that
the areas chosen in this study which have adult entertainment
establishments within their boundaries have, on the average, a
residential housing base of substantially higher value than that
located in the areas chosen as control sites.
Despite the higher value of housing s~ock in the Study Areas,
property values appreciated at only one-half tfie rate of the Con-
trol Area and at one-third the rate of Center Township as a whole.
Another anomaly apparent in analysis of real estate activity within
the three areas is that market forces within the Study Areas were
present which caused real estate activity within its boundaries
to run completely contrary to County, Township and Control Area trends.
In summary, the available data indicate that twice the expected
number of houses were placed on the market at substantially iow-
er prices than would be expected had the Study Area real estate
market performed typically for the period of time in question.
32
APPEAl SEP, SUP,VEY
PROFESSIONAL APPRAISAL OF IMPACTS
Because of th~ great number of variables that have the potential
to cause a particular real estate market to ?erform ~rratically
at a small area level, it was decided to solicit a "best available
professional opinion" from real estate appraiser~ regarding the
~arket effect of adult entertainment businesses on proximate
;land values.
The Indianapolis'Division of Planning approached the Indiana
University School of Business' Division of Research for ass.is-
tance in polling the real estate appraisal Cor~nunity on the sub-
ject. The University proposed that the survey be national in
scope and offered to design and pretest the survey instrument.
Dr. Jeffrey Fisher of the University's School of Real Estate
collaborated in drafting the instrument and conducted the ini-
tial test at a ~orkshop in early September. Analysis of this
pretest indicated the need for minor adjustments to the form.
In its final format, the instrument (cf. Appendix I! ) posited
a hypothetical middle income, residential neighborhood in
which an adult bookstore was about to locate. Respondents were
asked to numeri~ally rate the impact of this business on both
residential and co~ercial property values within one block and
three blocks of the store. They were also asked to rate a num-
ber of potential other uses as to whether they would increase
or decrease property values. Finally, survey participants were
asked to express what they generally felt' the effect of adult
bookstores was on property values.
The survey sample was drawn at two levels. Using the membership
of the American Institute of Real Estate Appraisers as the sur-
vey universe, a twenty percent random sample of members was
constructed for the entire nation. In addition, HAl (Hember
Appraisers Institute) members who practiced in 22 Hetropolitan
Statistical Areas1 (HSAs - as defined by the U. S. Bureau of the
Census) of a size similar to Indianapolis were surveyed at the one
hundred percent level.
In January o{ 198h, 1527 question~a~ies were mailed. As of
February 22, 507 (33~) had been returned. These returns we~-e spl]t
evenly between the 20*./. (2h9 returns) and 100~ (2~ returns) samoles.
In the national sample the rate of return by geographic reglon2 was
fairly consistent: East,41 - 27~; North Central, 56 - 28%; South,
J39 - 25~; and, West, 63 - 24%.Return ~'ates fr~ the lOD% MSA survey'
varied from 14% from Newark, N. J. to 62:% from Cleveland, OH.
TO .'
SHERIFF RICHARD P. WILLE
FROM:
AGENT GERALD KING
AGENT ANTHONY ALBERTI
PALM BEACH COUNTY SHERIFF'S OFFICE
ORGANIZED CRIME BUREAU
ADULT ENTERTAINMENT BARS
(TOPLESS BARS)
DATE:
APRIL 1988
INDEX- SHEET
SECTION 1
NARRATIVE
SECTION 2
SCHEDULE "A"
SCHEDULE "B"
SCHEDULE "C"
SCHEDULE "D"
SCHEDULE "E"
STATISTICAL INFORMATION
ACTUAL RESPONSE COMPARISON BY GRID
PERCENTAGE
PREVAILING RESPONSE/TOPLESS HIGHLIGHTED
ACTUAL RESPONSE COMPARISON/TOPLESS BARS
WITHIN CITY LIMITS
GRAPHS
SECTION 3
ORDINANCES - CITY/COUNTY
SECTION 4
SUMMARY/3~ Z.a ;~-
SECTION 5
FLORIDA STATE LAWS
SECTION 6
NEWSPAPER ARTICLES/BUSINESS ADS
SECTION 7
PHOTOGRAPHS, OCCUPATIONAL LICENSE,
CORPORATION INFORMATION, BEVERAGE
LICENSES
SECTION I
As per your request, we reviewed the year 1987 to give
you statistical information on the following adult entertainment
bars in Palm Beach County. Also included are four (4) bars
located within the City Limits of Riviera Beach (Annie's Kookie
Bar); West Palm Beach (Kitten Club); and two in Boynton Beach,
(Showtime/Morey's Lounge).
The six (6) remaining topless bars within the County are:
1. FOXY LADY LOUNGE
5699 South Military Trail
Lake Worth, FL
2. PEEK-A-BOO
3174 Lake Worth Road
Lake Worth, FL
3. FLASHDANCE
4458 Purdy Lane
West Palm Beach, FL
4. BRASS BULL BAR
704 South Military Trail
West Palm Beach, FL
5. MERMAID BAR
4425 Southern Boulevard ~/
West Palm Beach, FL
6. ENGLISH PUB
383 North Military Trail
West Palm Beach, FL
For comparison, we also reviewed two regUlar bars (non-
topless/ picked at random) 'within the same general area and
they are:
1. FOXY LADY LOUNGE
A. PLUS}{ PONY
9803 South Military Trail
Lake Worth, FL
B. THE ARK
2600 Lantana Road
Lantana, FL
~EC'['ION I 1'AGE 2
PEEK-A-BOO
FRENCHY'S
3731 Lake Worth Road
Lake Worth, FL
SENATE LOUNGE
7885 Lake Worth Road
Lake Worth, FL
FLASHDANCE
HONKY TONKS
1961 South Military Trail
West Palm Beach, FL
PLUS TWO
3047 Forest Hill Boulevard
West Palm Beach, FL'
BRASS BULL BAR
POLO LOUNGE
983 South Military Trail
West Palm Beach, FL
CORBITTS BAR & GRILL
839.South Congress Avenue
West Palm Beach, FL
MERMAID BAR
391st BOMB GROUP
3989 Southern Boulevard
West Palm Beach, FL
EL RAY BAR & GRILL
3407 Southern Boulevard
West Palm Beach, FL
ENGLISH PUB
ae
GETAWAY LOUNGE
2517 North Military Trail
West Palm Beach, FL
STINGERS
3690 Shawnee Avenue
West Palm Beach, FL
SECTION 2
The statistical information was taken from all calls
dispatched to the address of the bars. Palm Beach County is
set up under a Grid system adopted from the 911 reporting
System. In our comparison, we selected two other bars in
the general area of the topless bars. The non-topless bars
were. chosen at random, to give an average cross section of
calls and a fair comparison to the topless bars. To condense
the voluminous'types of responses, specific calls were grouped
into their related general categories (i.e. pickpocketing,
theft from auto, petit larceny were grouped into "theft related).
Grouping was not done on Part 1 crimes.
SCHEDULE "A" - Depicts the actual response comparison of
calls between topless and non-topless bars. The schedule indicates
' the number of responses per category, per bar and also includes
'- totals for each. '", .... ~ ......
SCHEDULE "B" - Translates the actual responses into
percentages per category, per bar and includes total percentages
for each bar.
SCHEDULE "C" - In Effect, is the same as Schedule "B", but
with highlighting to the topless bars and the categories that
they lead in.
SCHEDULE "D" - Shows the actual responses for the four (4)
topless bars within City limits.
SCHEDULE "E" - Number 1 is a graph showing actual response
comparison/percentage comparison of six (6) topless bars and
twelve (12) non-topless bars in Palm Beach County.
SECTION 2 PAGE 2
This graph visually shows the six {6) topless bars, which
are one third of the total bars reviewed actual accounted foI'
nearly fifty percent of the total calls.
Although the number of non-topless bars are one hundred
percent more than topless bars, they only accounted for sixteen
percent more calls.
SCHEDULE "E" - Number 2 depicts the percentage comparison
of all.eighteen (18) bars (6 topless/12 non-topless) on an equal
six bar grouping. This ~as done by taking the twelve non-topless
bars percentages and dividing it in half..
The~State of Florida Division of A16oholio~Beverage".and
Tobacco was contacted, reference to their investigations
involving all the bars listed above. They advise~,/us .thesei~ii~?,~
calls consisted of sale of alcoholic beverages'to minors and
narcotic violations. These were grouped and noted on Schedules.
"A", "B" "C" ' where applicable and included in our~ statistics
ACTUAL RESPONSE C~{PARISON
ACI~AL RESPONSE OOMPARISON WITHIN GRID
ACTUAL RESPONSE OCMP~
WITHIN GRID
/7-
pES~%I~TAGE RESPONSE COMPARISON
WITHIN GRID
PERCENTAGEwiTHiNRESPC~]SEGRiDOCMPARISC~
V
FRbYAILING l ~ESPONSE/
TOPLESS HIGHLIGHTED
b
p}~ILING RESPONSE/
~OPI~ESS
b
L I II
II I
TOPLESS HIGHLI~
b
~ 'I~;VAILING t .~S~3NSE/ ,~ 4(/ /~'~
TOPLESS HIGHLIGHTED
GRAPH ~,1
ACTUAL RESPONSE COMPARISON/
PERCENTACE CO~kRISON OF
SIX (6) TQDLESS BARS and
TWELVE (12) SE~,RCTED NON-~OPLESS BARS
IN PAL~ BEACH COUNTY
GRAPH #2
PERCENTAC~ CC6IPARLeX]N OF
TOPLF~S BARS/$Rr,~ NON-RI)PLESS
BARS IN PAI.~. BEACH COUNTY_
PERCENTAGE OF _r63S_.PONSE CAr,]'.q
SECTION 3
ORDINANCES
Attached are copies of City or County Ordinances fromz
C.
D.
E.
F.
G.
H.
Tampa, Florida
St. Lucie County, Florida
Baker/St. Lucie County, Florida
Flagler County, Florida
Brevard County, Florida
Chambers County, Texas
Dallas City, Texas
Palm Beach County, Florida
~).ffex. Xpp.. 1] Dist.]SSS, writ reFd n.r.
e.).'.' .~,isintiffs' claim of preemption must
fsi] for the foregone re~sons: ...... .-.
; [S4]' Sectio,' ~ ~f the Orciinan~ Vrovides
that "~ any pi, ovisio'n, section, subsection,
sentence, clause; or phrase' of this Ordi-
~ce, or'the application of-same.to any
person or set of circumstances is for any
rssso~ held 'to be uncoustimtional, void or
~mvali~, the' validity of the .-remaining pot-
meet. its p~ without undue restricti~
on first ~mendme-t interes=: it provides
for a§equate compenSation for preexisting
nonconforming businesses while serving
the public interest ~n alleviating the ad-
verse secondary effects of sexually orient-
ed businesses on the surrounding communi-
ty.- Accordingly;.- ' .;' ';-:: :';'' .... ...- '
It is ORDEREDi /LD3UDGED and DE-
Seci or . 2S-12S(a)(1)(i)i+'
~aX6) anit 2S-125(b)(a)'.ir~ --coustitutionsl '
:: ' tious of this Ordinance or their application- and the Defendants are permanently e~- .' ...~.:!.. the Revised Oivtl S~te:
~ ' ::" "to:other persons or sets of circumstances joined fr~ni 'applying those Sections. ~i[~-"'"'"i~' Texas authorizes hom~rul
.-:.'-~:;;:. shall not' be affected....:" ' For the above .' . any ¼wful business,
; "-' ' ............ ~tious ' It is ~urther OI~DEILED,': ADZUDGED
,-.', -- 'reason, me uour~s mvauasuon o~ ~e ' . ....... '... _ ' .~. that is .susceptible to ti,
~c:. ,~--.,,~x-~, ..................... ~' '.~ ~ax~m ._~.oo s~c~.xm~ __- .... ~ ,---- . .police power,, and. "" :' '
-*:,~ · .-.- ;-I:~.,. -,~.., ..,~- r~;.;nce.' The .-r ~ /ko/-.-,, .~--~,~w/~o) ~ ,cyr.,cu -,,,, . ·.. · ' ".'-':"
i.T~,,~l~-': , ___ t~.,~4 ..... 1,11 ~, ..... rea from the ' ~ne 'bl~. oI ~ouston. urom-nce..~o-,'~ai.. · -. WHERE~,'~cle ll~
i~v..z,.~...~D~V~ .~u~ <,,~u ~,~..,~,~; u . . .... ...... ·
ix-'_;~--~.'. ~: --' ... ....... .-,"' ;,-..~ ~.:'~:.,~;~ r,._=; .and DECRI~.I~ that':P~aintiffs Application. '. .Te3ms :kuthorizes" home-r
l ..r...';~:,i;....~ .~onclus]on, T, ne ~ourc r. mu~ uP,.~, w_.r~-,... , . .. _ . T . .. . .... -;
i ":r."?.~'~"~'Ni3. B6-32S ~ 'S valid .eker~e Of the .mr a.~er~,nent Injunction with regard to. : canse, reguhia, eont~ol or
;'~""'"~'~ Oity of :Houst~n%':POli~'l~ei~.: The Ordi-..' the r~m-i,i,;i'p°rtio~s'of th; City :Houst4~ii . · tion o~ sips .or billbosrd'
, -,: .... · ..vialed by cbs.nar or ordin;
· ~. _~---."' .... :...__~e.~cldresseii stibstantisl Irovernm~nl~_ _ .' . Ordinance 8G-~ is hereby Dl31~l~;'v" ? .. J~:'i'
jl~'.:.['interests and is tsDored -to. affect: ' those ,.,The Clerk shall .file.this Orcle~d pro- .:".'. 'WHERRAS,.Article. 11':
i~,~,~ iatarests with' minimal i~trasion o~ first ..~id.e a ~rue COl~..to .counsel f~ ~l!.partie~. '..'. the Revised ~ St~tate.
'Texas, amon~ other' 't~;
l~.;~!~:'..,sm~tment protectio"'-. The lsad:,use, r~- _'...,j,:,. ~ :..?. :,.:.,..;,.:., .... .: k..'/.:-;,,:,k: ' [~ii:. homt~r~ie.cities to 'e~for
'i ..v:' ... stOols'in th~ Or~in-~ce'az~'content'neu.- ~,i'.',.: ,,. :'Ji:;:..,~P~ .IX I..,., :..; ... ~;..:?
· e .;'. ""r; " ' " h~,'" '- :' "..."-:. . · ' 0vi -' ~".'.~."- '
~ -." ~esse~ ~ s Oral ceos not~ncoz~ ;~. ,, ..~.~.~., · ....... -,,o,~: .... . .....
-'. -..~, ..... - ........... " -' - · -'.. · · - . .'..JI~4Zl/O~.;~.L/./~_ .' .'" . ;.' .. · .:'
!. ': .-...,.a,--,o/mll~ ~me ~ ~e .Simt' .to ~ de~ :: ......-.-.:~.. ,..:,m,... .... ......= '.~.,- ..... .' c. ,'--;;. '.- '
!" appU o ;>oth 'th the,.'?o :.ce. '
~,.:'.: -.'~n~oau~':'~tO'You· the or~inance:.set out belo~ ~ith the ~equest, ~
-' ~DJ, F ", v. CITY OF HOUSTON
_
f.~.:"-'~: APPENDIX..,i'"c°n~ued '.:."
~' WHEREAS, Article 11'/5, Section 22, of
the Revised Civil Statutes of the State of
· Texas suthorizes home-rule cities to regu-
ii, late the location and control the conduct of,
among' other th~..gs, theatres~ movin~ pic-
ture shows,-vaudevflle .showa, and all
places of public amusements; and, -: , _
the Revised Civil Statutes of..the State of
Tex~ authorizes home-rule .c/.'tie~ tb license
375
churches and schools are centers of fL, m~y
oriented activities .~nd therefore enhzne~
the quality of life ia surrounding areas;
· lly oriented commerce] enterprises
exert s dehum~.i~-;-g influence on persons
attending churches or schools in the sur-
. concentration of sexually oriented commer-
~s suscepume w me control o~ me "in th -- ' '' ' ....
_ ~ ,. -,.., .., ,~. ....... e value oz.surrotmamg properties;
the Revised Civil Statute/ of the ~tate of '..e°neent~a, tion of sexually, otientefl eommer-
"~ Texas ' a~thorizes" home;rule. cities'to Ii- .i cial enterprlS~s.' can' e~ntn'bute to ~n~'
regulate, eonti'ol or prohibi~ the eree-.-, er/ase, in crLm. i..n~,.! '?.~.'.~,tl.e,s..'.m
WHEREA~,.Artiele_ll?$; Section 34, Of... sexually' oriented', eOramercial enterprise .
Civ~ Statutes of the State :of' .can. contn'vute 'to the impairment of the'" ·
,~ among "other 'things,' .'authorizes . eharacter'snd quality of a surrounding ~esi- .. ..
~._-.. home-rUle cities to 'enforee ·all. ordinances dential.neighborhood; .and, , .... :......' :,.!*:'-
~'"-i,~:;'and'to'~reser~e'snd enforce the eood ':7 witJ~SUoa~, b~y ~ounc~ taus ma~ me
~"-.,-.....-government,: order>and security of. ~uch._~.mgns .aud..ex_~.. 'or.~ous of sexually, o~..:
~[..'.': .'*"vised Civil Statutes of the State of'Texas .... '
:':;-='. .............. - mental health of 'minors viewing such signs
; ..... ce, reg~latious restri~dug the location.. _ ....... : ...... - .... .:-, . ........ .
: !f =' -bUSiness ;is the offering of S' service'which going finitings; which are set forth m the .
' is intended'to provide sexual'stimulation or .p~ambl~'thereof and'/d~pted therein, the ' '
i?'''~'' .sexual gratifi~ation-t~) the customer,, and
~>' '"~.'> WHER~J~, the.~ity Counc~ .Commltte~:
~:- 0r~ the Eegulatio~i: of"Se~m~y. Oriented
:i Co~ne~l Enterprises heard .testim6ny'
::.. from proponents .and 'opponent~ of 'such'
e~terprises at.'pub1~c:hesring~' held
City ~i~ne2' ad~p{ed..0rclim~' No. ~ ' -
~1812 (now eoclifled, as amended, is SeCtion
21~95 of tli'~ Coite bf Ordinances, Houston, ,..
Te. iks); and': e.,'= · +'.:"? ?".' := .~ -" :(·: :"-',:.: '; .'?-~' :.'.:
::i: WHEREA~," the $gfli'T~.xis' Legislatttre,'... ,"'
'198,5 adopted, Senate'.:)Bi]l-.'"106,'-.whieh. "
amends- A.,~" ~?gw of the Revised' Ci~'
- . .vember 4~. 1982, .. /qove. mbe~. 11,,198:?, No-'.: Slat'utes of.Text, so that premises holding , ' ~..
~.,.~['.~{.'vembez:.22, .1982;', Decemb. er....15.,-?19.82,. Mai.~' alcoholic', beverage permiti' and: liee~es"
~."~' - 25,'._198~, Jun~.l~.'.1983,. and June 2,~4983;:': rosy be.included:in the scope..of land USe."
~-~-.-'.': .O~0be~ ~' ~9~'-a~8~.:' '='"- ...... '<" ' .'-' :::;
~-: - - . - , -,:w ~ :,',:-=:~:,,~'~.'-- a'egulations ~clopted thereunder.ior.sexuat- .. '.. -
~;:~-- ':..~! WHE~; the commit~ ozl thi' l~eg~.:~'.. ]Y-": °rien .ted.. f'e°.rnmercial': ..enterprises;';:'-and':':
:."' :[.- latio~.of ~..xually Oriented 'Commercial En-:t:. ~'-~,*the 'City Cotmcil Cor~mlttee ....
5.--~- . .-....~,
~ -....~ torpri~e~ 'ha~:.eornp~led .~r~:-fi~dini~: in'.a -- on the 'l~g'ula~m. of.',~XusJly-Oriented'" . ...
..... ~.,.~;~. ..... ...~. ~.~:,_. Commemial:..Enterpri~es: heard.'textimon~.
k,,.::-" ~' ~ '. ':',--.~'- - ..... ' ' . ' '- . '~, - ' '-~ ,: - ~ * ...... - . '~ · 5 ' _ .~ ' '~ ".' ' "'
· ,>'~' !-.'.'...;... ..:... - '-: -..'.,... -. - -~".-..' -' '.~.~- · ': :"-~ .- : · '."-' . ': '". - .',-' : .... : ....:_:~..~,~.~..:
Chapter 2~ of the Code of 0rdim~s,
which reads as follows:.
;'ARTICLE III "
SEXUALLY ORIENTED BUSINESSES
Section 28-121 . Definitio~s~ Az 'used in
.. this Article, the following words and terms
shah have the meanings ascn'oed to them
in this Section, unless the context of thei/,
usage clearly indicates another, meaning.
Achrpmatic
· .colorles;j l~cki~g .in saturation or hue.
Without limitation, ~ray shall b~' included,
but white and black shall be excluded from '
the del'tuition of 'achromatic.'
. :-"they'Should'be included in tl{e' scope of[the ..... ' ................... : '
-; "'"land use regulations for sexually oriented '-.'i ~[~ es'~ablish~ei~t w~o'se 'm~,joi, 'b~si~en
' '~mme{~,ial enterprises; 'and-, :.~ ..... .- -.~: :.... is the offering to customers of books, mag-
...... sextmlly..oriented, commercial enterprises
~""" exert the same'influences on day care cen-
' .ter~ -, on ch .u~es .und. Schools,' and tha$
da~ :care. center~ should . be .:afforded the
same 'degree of land us~ protection; '.and
azines, films' or.. videotapes (whether' for
view~[, g off premises or on premises by use
of motion, picture machines or other image
producing; de.vi~es), '.periodicahi,[. or. other
printed, or.p! .ctorial materials which are h~
tended to provide sexual stimulatioh or sex-
ual gratification to such customers, and
'",.. '.WHEKEAS, ~ce in the operztion wMch are d~stingu~shed by or characterized
;{ . of Ordinance 811-1812 that hu B~en gained 'by an. emphasis on matter depicting,' ~e-
~.' o-["6ver the past tw~ears ~ den~mstrsted
......... ' ..... '" ' 'v · ' '" ' ..... ' ' scn'bing or.relating to 'specified sexual ne-'.
i-.': ,..~dnin kdministrati e. nnpro,vementi, and '
i' "'"-." re adopt the. Oity.'s Sexually Oriented Corn-.; ..is t~e Offering'.to customers of Jive' en~ter-
J~"-?"' igiircial Enterprise i,e~latiofig' ig'order,to" 'tainment which is i~tended to provide sexu-
;; .... '_{1) incl~.~ establishments, servini[ alcohb] L [al stimulation~ or se_~l' ~rstification to
· ' ~t~ur ,v~rm~t~RE . .- . .... specmea sexum acuwues, or specmeu an-
, '~ ,CIL OF. .THE CITY OF HOUSTON, TEX- ' jYAdult Encount~ Parlor' .: ..... ; ..;-...~. '
: . ..~,... Se~iom~.., ~ That ~,he .findinggand recital .-. is ',the provision Of premis'e~ where custom-
~ .. :. tions set out'in.the preamble.to this Ordi<(:.ers either congregate, associate, or'~onsort
· .. , na~ce are.f6und to be true'and correct'and ~:with employees who*engage., i~/specified.
! '"'_'.j. ~.'the:~[are_hereby:.adOPted by-t, he Cit~ Cotu~- '-. sextuh a~civities' with or i~ the presence of
;:' '-. i. ~- ..~.-~d-m-.~-e;a-p-art ~e,reg.f~°-r.: ~ "P-u~'P°ses[~)[-such:-customers?- or who displsy.
'; ..:':a. Section .2.:.:That .Se~i0n:28-~5 of 'the" anatomical.~ireas' in ~e presep_ce of such _,
-.- "' Code..of: O.rdina~ees~-. lqousto~,;_Texa~i ~is c~:omers, .Tith the intent' of providing sex-. '
· .. AFPENDI~ I
u~l stimuh~t~oti 'or sexu
such cllstorners.
Adult ~un~e
p~uant
~e where al~ho~c
se~ed or sold.
Adult Mo~lin~ 'Stud.
. ~ ~b~hment wh~
h ~e pmv~ion~
modeh who ~ so p~v;
[~(" :'hr' ome~e .depic~d ,b.
: ' p~g .~ .or .s~p shopp[
' ~g' ~ee (~) or. more
ea~ of wMch'~ offered
'~ for'[ep~ dccup:
i.~:' usJ stimulatio~ .or ~exusl tx. ~'i~on W
su~ cns~me~. ' '" '"
Adult ~unge
~ 'adult ~t' ~ defined s~ve
which is a permitted or licensed premises
pursuant to the Texas Alcoholic Beverage
Code where alcoholic beverages may be
served or sol& . - '
Adult Modeling Studio .
An establishment whose major business
is the provision, to customers, of fiknire
models who are so provided with the intent
of providing sexual stimulation or sexual
~'~'?'~.'.~.". ~ gratification to Such custom'rs and who
I~,.~.' ." engage in 'specified seXUal activities' or
[~.~; ~. 'being obser~e/l,'.T'painted,- painted, upon,
[.~' :' i' 'sketched, drawn, sculptured, photographed,
[~'? ~..b.r o~erwiie, depicted ;by such. cus~...m..ers;
[ " .~..~ ; -' ,.~ Adult ~liovie Theatre ~ .:.,:' .'.~..'~:...
! .~.~:: with tiers or rows of seats facing a.screen,
~.'?~ °r l~r°jeeti°n area' Wh°se maj°r' business is
· ~...~_.'.' '-. tures Which' are intended to provid~ sexual
~'~ . '. stimulation or seXual gratificatiO~t~ ~uch
.' .',i.;custom'ers and which ar~ distinguished by
.~_-~".. ' d4i~ieting/' desen'oin~' or re. latinS ~ ispeeJ-
~ .... "/iii Sexuai'activities"or' 'specified anatomi-
' '~al are~:'. "'" '~'"'"'" · '" ,' ',.~'~" ' """' '~'
mg onw pubhc property, a pul ~'ay, or a
"'" Conduct AnF Bu.~ne. ss In An En~'
p~e
~y ~mon who d~s any one or more of
the follo~g sha~ ~ d~med ~ ~ ~n-
ducfing bm~ess ~ ~ en~e:
1. o~s a ~h ~s~r, ~h
or o~er de~si~ on ~e en~e.
promises where ~h fun~ or
reCor~ of ~e~t ~ or ~ ~t
':' ~saefio~ gene~d h ~y ~n-
ncr by ~9 o~m~on of ~e es~b~
-.. _ ment or ~e acg~fies conduced
2. ~pla~ or rakes orde~ ~om. ~y
.: g~, en~inment or o~er
: :.:? ~ offend on ~e en~me pre~-
de~ve~ or pro~d~ ~ ~y .cus~mer ·
' .,~. merit or o~ se~ces offend on ~e
~.;, "I building['[.wheth~r sit~t~l'"~i~ the .'--..: ;:, .:of an admission fee'or any other form '-'
~;:-" · ....~..4. bnilding or sm~c'q:m-e (includingla.~hop- ~.:'(8) is Wmember of .and on 'the'.premi~e~. '
~-? . ping.mall .or.~trip ~ho. pping center) contain- '
:;l~a"ving':itsTo~' door' or enlaZaneeway"open- "'~f the PoliCe ~[)~a'~n'$nt:'~'l{e"mEy d~sig-' '
'Cit~' or 'not, in' which" persong' regularly c.'-,".:,of consideration or trna. tuft'y; or .:- ;' . .'
· 'assemble' for" 'religions worship' intended ': .' ;(9.) '~nter~':"a':' 'regulst~d"'bst~blishment'_ ':"
.: primanqY for purpos~, connected with'such ""' 'and .p. iu~hase, s,' 'rents or 'btherwise
.. worship. or..iOr propagating ;a part~.'cul, ar ';-';'L . partakes of any:merchandise; I[ooch,
· · form of;religious_ belief ...... '-i-~: '.d ~.'. entertainment or :'oth~ serviee~' of-'
'Comrnbrdai IK~Iti-Unit .Center.,..[.: ~'. .. feted therein; or '"'.".~.~'-'-':.:~'---. :.'~' ~. '-, "
note to perform the duties of t~ Oirector'
under this Article_ ....
The entire surface of a sign, on one side,
devoted to exhibiting advertising. The dis-
play surface shall not include the sigu
frame and incidental .supports thereto.
Employee .
Any' person who renders any service
whatsoever to the customers of a 'regnlat-
ed estabEshment' or who works in or about
a 'regulated establishment' and who re-
eeives compensation for such-service or
· .' .'-'C.!' An' adult cabaret, adult: enCOunter parlor,
':... adult lounge, adult modeling studio, or any
"'.' establishment whose major business is the
.-. offering to customers of 'a product or sar-
.' vice. which, is intended to provide sexual
· stimulation or 'sexual gratification to such
'-';. customers, and which is distinguished by or
e~s' or engaging m 'specff~ se act~vi-
,Ms' in the presence of ~m~
Ez~o~ P~i~
~y ~ of ~e physi~ s~ of a
'~la~d ~bl~hmen~' ~clu~g a wa~,
verier, d~r, fen~, ~f, ~f cave.g, or .
~dow, whi~ E ~ible from any public
way or public p~.
L~ed Day-Ca~ ~
A fac~ lice~ by ~e S~ of Te~,
whaler si~a~d ~ ~e,Ci~ or no~
that p. rovides care, trah~ug, education, cus-
tody, treatment or supervision' for more
work :from the operator or owner of the ·. than twelve (12) children ' under fourteen
'regulated establishment' or from the.cuB- (14) years of age, where such children are
tomers thereim :-- ..-- '~. a. ' .. not related by blood, marriage or adoption
.., ..~ characterized by an emphasis, on matter · lishmenL'.'/~:' ...~ .-.' ·
xse~ sexual acuvmes or 8pectxle~ anamm)* .. .o · , . -.. · ,. · ,, .
" ' ' ~ ',,,+~,~,4,,' '. ... etor n a Bole propnetorsmp, au parmers
· esl m~u. The te ...... ,. .... hall not . . . . . ...............
· '"'" :'--+,,,~""o~ 'adult' movie theatre ,' - +.hn,, .omcers, uxrecmrs, ann pereous nm_rang.ten
.... are define ...... '~u' 'us' . · percent (1 ~) or more of the uutstauding
· .j ' . . . snares u a corporauou.. 'l'ne r~.rm ewne~
/' . operated .by or employmg Iiceused psychol- ...........
"!r ' '" '"' tic train "ce -- s e--lo" - -'g~ en u) ~ue operau~r a statement unuer
· "' -- barbers -- ' --c*' 'a ~ath that.he does not des~e to .be listed on
· · .. ,,eenseu oerm perxormmg xun nous u- th ......... '. _ .
"-: ' " ' ' I · e pernux appucauon auu mat ne wmves
.:: $Jmor~ed under the Iiceuses he d,. (S).c any' au righ'to any ....... reqmre~·' .
il' ' ' ' ' y c ·nonce macro or
· -.~. busmess operate~i by or emplo]nng Ii ensed ...... . _. ..... . ....
· h,_l or eased chiro~ rs . . .
-~. any retail .establishment whose major busi- k"current, valid' permit' issued .by the
' 'triess is-th~ offering of Wearing apparel for Director pursuant to the terms of this Ar,i-
· ~ the owner or operator of the facilitY, for
les~ t~{m twenty-four (24)' hours' a .day,
regardless' of whether 6r not thk facility is
operated for. a profit or chargesufor the
cie to au operator for au 'enterprise.'
Regulated Establishm'ent+~:'f;~.;'~.' :.'-~ .
·-m An~-.:,en[erpHse?.~adult boo]~to~,' or
"adult movie theat~'e' as' defined'herebY.
.~:.:-Pe.~in~,g to' the use qf.land, whether
.. situated within the City or not,. for preuxis-
.. e~ such as homes, tow:uhomes, patio horn-es,
mobile homes~ duplexes, coudom{n{tuns and
. apartment compJexe:
hie rooms for nou-tr
which are designed
Bleeping, cooking, a
':. premises which is ~
living, sleeping,
shall be deemed to b
· ter unlesB it is actm
exclusively for
motels, boarding ho
hospitals, and nurser
considered to be resi
., $c&oo~:~ .: ..-
· ~?A building, wheth~
~ or not,' where ·
semble for the purp
education together ~
Btadia and other. Bt:
used in conjunction t~
.lhnited to (1): Public
u~ed for primery or e~
any regular
: one through twelve
Students wi/o have
ten 'or any of grades
Any, ~play, desi~
:. rePre%nt~tion,'which
~ned 6r. '.manuhctu,
.the' public ~o any
· ch~dise sv-il~ble at
. IishmentJ% .. The-:term
: .-.. clude, such?represents
; otherwise affixed _to an
a 'regulated estabBsh~
.(1) .less 'tl~n :comp,
APPENDIX I--Ct :hued
'apartment complexes, whic jntain habits-
. ble rooms for non-tranSient occupancT and
· which are designed primari}y for living,
. sleeping, cooking, and eating therein. A
premises which is designed primarily for
living, sleeping, cooking and eating therein
i--'-' seal] be deemed to be residential in eharsc-
.., ter unless it is actually occupiect and used
exclusively for. other purposes. Hotels,
motels, boarding houses, nursing homes,
hospitals, and nursery schools shall not be
considered to be residential, i. :...:..
· !~ School ~' .: ':" ~ . ' ." .'.~' ...
· '~i,' A building, whether ~situated within' the
City or not,' where persons ~regularly as-
semble for the. purpose of instruction or
education .together with the playgrounds,
(ii) i~uu~ck, or
(iii) Female breast or br,._ote below a
point immediately above the top of
the areola, or
(iv) Any combination of the :foregoing;
01'~
(2) Human male genitals in a discernibly
erect state, even if comple, tely and opaque-
IX covered .... -
· Sperifie~d Sexual 'Activiti~:-..
(1) Human genitals in a discernible state
of sexual stimulation oi' arousal, Or '
(2) Acts of human masthrbatidn,'kexual"
intercourse or sodon{y, or '~:' '; ;'-
human genitals, pubic region or pubic.hair,
buttock or re'hale breast 'or breasts~ or
· stadia and other, structures .or grounds ·
.:. used in conjunction therewith.'..The'term is ' :- (4) An~... COmbination of, '-. the. foregoing..
:.:". used for.primary or secondary education, in -' A 'contiguous lJar~id 'of land undir
· 'which any regular kindergarten or grades ~ moti ownership,. ~hether' situ~ted'"'withi~
one .through ~'welve classes are taught, and ' the City or n~t. ".'.:: "-.i '::' '''~ ' ~?'"".':
students who hi~d~h~slcal or:learning dls-
=abilitiesreeeiv~'iipeclalizec~'ed~iioi{in lieu' :: Oil It shall be unlawful for. any person to
.o.f attending regular classes iti kindergar-'', own, operate or COnduct any business in an.
ten °r~. any of grade~' one .thOugh.twelVe.. enterprise located, within the. Oity tmless
.;. An~, displsy,'.'desi~n; pic~ori~ 'or. other :,"; (b) It shall be"unlsWful tot anr'p~rsOn to
,presentation, which'shall.~'gE eoiistruct.'.:: own, operate, or COnduct my bnsiness ii'an
ed,, placed, .attached, psint~d,', creed, fns- enterprise located .'within.th~:. ~ .unless
..tenea i ?. "~; '.n~nufact~red i. ,i~ ..i .an:~ '. ,-a~. er, -. the'permit is postea at ~r 'n~r tbe prineipel
whats~e~ io that the"same'iislVis~l.~ from .: public ~entranee'lo .the-enterprisein .such
the out~ide O~'a regiflated.establis~ent',,~--er..that.it'~ll.be eouspi....eu.~.m....to pc-
anal' tha{~' ~ed ~o iee~"th~ ittt~ction of l=ons ~ho.enter:the premises.-.'.".~?·:-,-..' -
chandlse available st such 'regulated 'estab,. (c) In..any prosecution under subsection
. lishment.'!.. ... The -: term : 'sign~ . shall also .in- (al abOVe, j.t shall.be pr~esun~ed that there
clude.=such, representations Painted bn. or .= was no permit at the iime of. the 'slle~d
otherwise -~xed _to any exterior portion o! offe. nse, unless a permit W~..~.. e~i~o, sted as
a 'regulated establishment' as well as such 'provided in subsection (b)~.. ~ .! ,,..: :.. ....
- ..... ' .... O~iginal c~r rene"{ril; m~ be made:~e the
· ',-.(1)-.Lesg. than':.~omple~ely ~and' opaquely" mitred by hand delivery, to t, be offi~'~f the
.:'.:5' (il Human. geni'tals, l~Uhie-region or.pu'- Department during'regul~ :.worRing hours
PriVy, City, holidays excepted.) Applica-
tion forms shall be supplied by the Di-
. rector. The intended operator shall be re-
qtgred to give the following information on
the applkafi0n form:
'~.~, .... (1) (i)The name, street address (and
' · malEug address if!ctifferent) and Texas
· 'D~vers I~cense n~mber of the intend-
ed operator, and ~any and all aliases;
(~) The name and:street address (and
m,dllng address ff different) of the
(4) If the enterprise h a foreign
~on, a cart/fled copy of the certificate
of authoriW, to transact business in
th~ sta~e,' together with ~ll amen&
ments thereto; .
(5) If the enterprise is a limited partner-
ship formed under the laws of Texas,
cer~fmd copy of the ceruific~to of hmtt~
ed par~ersMp, together with all
amendments thereto, filed in the office
of the Secretary of State under the
Texas Limited ParmersMp Ac~ (Article
61'32a Yernon's Tex~s Civil Statutes);
(2) The name Under which the ~nterpri~e (6) If the enterprise is s foreign li~ted
-. '~ ': is to be operated and a general descril~ . parmerehip, a certified copy of the
:';:" ~'tio~ of the services'to be provided;
- ~ic~te of limited partnership and the
.' ' .. '~ '(8) Th~ telephone number o~ the enter- .: qu~!i~cation do~nents, together with.
"- '? .... prise;'. .....'" ;;a" :" '
· . -;"(4) Th~ address, and l~gal descriptio~ of
· ' ' the parcel of land on which the enter-'
· ..:~.=. prise is to be located; .,._.: .....
,.. (5).Th~.dat~ 'on which the owner(s)
:.:. :';. quired the enterprise ~or which the
· .-".: permit is sought, and the date on"
~':;: ~s an enterprise at-the locs~on for -'.-
.~ .'.:~' WMch the permit h sought; and-' ' '- .
'" ~: (~) A ~st of all employees or contr~c~ore
- . all amendments thereto, filed in the
..-, office of the Secretary of State under'
the Texas Limited Parmerskip Act (Ar-
..: tide 6132a Yernon's'Texas Civil Stat-
t~toS);":: . . :, '::,' ' · ".-:
-:" (v) And-of ite~ (2) tK-o'u;h' (6)[ a~ove
, .~,. shall..not be required for s renewal
'" applic;,tion if the applicant states that
the 'documents' previously 'fUrnished
th~ Directoi with the original applica-
tion o~ previous renewals thereof re-
.~..~, ,; pro.v~ded by .the enterpme.':.~..,~: .:.-' . .~.f ................... ' ~.-
· . ...,.:... , .:...- . -".-. ....... .. : ..-.'.~ ·
m~ ~d~'~ ~ '-:---'- ...... :':'~':':'"~'" ?"
'~ .~ .7.;, ~).~s~ent ~ '~. of s f~ o~ ~ ~ ' .=,: of ~e ~o~fion ~n~ ~ ~e ap.. '
~ ' j~f'f['~ or.mon~ o~, wM~ f~ s~.. - '.-. : .... . .: ':.:- .-,-~:. ': .' .... '
..]~ .... ".~-'~:(~'.h°t'~'r~ble ~d~ '~y, ~ -'(d)A Sep~ app~mfion ~d:'~
.. $~2~' ' ..-.'. '~.',.. ~ .'. ~:Zk.:;i:.4.';
' · V ~ce~, f .... · .... . ·
' ~ '. )~ (~) A C~ed' COpS Of fie ~s~ed
':; ..... , :. certificate filed in compl~uce With the
.!!, . ' - :~' Assumed':~ Business -or.- Professiozml
.i,"l '"~iiL.-..Name. Act ,(T~e~e~ l~evised Civil St-,t- '
:~!' · ' ~.:. utes-~o~te~, :~s~ess .an~ ..co~
- ,~z..prise i~ to be operated under, an as-
'! ...-...sumed name; ..
:i l.:', ~.. (~) If. the enterprise is a TerJ~' corp.o.m-
i:~ .'.-. T-..;~.: tion, .a certified copy of the articles of '
ii '-' ~..~. incorporation, together with all amend[
i '
"-,.'i"'-'m~nts thereto; .. . '
shall be required for each enterprise.:.' ":
Section ~J~-l~~ Te~m of pe~n~. R~new- .
~'z, ,_' '.,-.. ,, .;:'.'.~..'::,:.:.;..~.:'.,~, .' ~.'.. ';? ~'~"
"~ ~'s~'be. v~ud'fo'r'a pez~ad' ~f,
~ne year and shall ex~h-e on the s~m~ver~:
ry of ~s' date of issuance,' unless sooner
revoke~ or-sm'rendered. Each permit
st~ be hubje~ to.renewal ~s of its expira-
tion date by-the.filing of a renewed appli~ ....
fion. with the Director. Eenewal'spplics-
fions must be fried.at least twenty (20)'d~ys
prior to the exph~ation date of the permit
that is to be renewed.
'Section 28-~25
1 :~' '(si Withh twenty (20) d~
any pplication, either ontr
D'
the ri'actor shall Lu-ant
quested permit and give
the applicant ~s to the dec,
the appl~nt
.~:; following conditions exi~t~
.:'~.(1) The applicant's enter
J~i{-":"'"' or, licensed day.
,,si,,;:- surements ahaU be
"~ ~.,:; . line;: without regard
;'i.)~: ~:: structures
· or, object~,
I~j.?,;r..~st p6int on the prop,~
~- ,,_,%; poJnt on the property
I!~A:' ~- 'prise for .which that
~,.'..:. .
~'~ .... :,....:. st~m{ht .i~, without
-"D L: ' ' O'
- ':.'.-...-..' --I
est'imint bfi $J~e prop,
::'
.,- ,oo,
i ~.. :, ;. center of.iuch circule.,-
:~: "?j ....lng the 't~o h~0s~ dis.:
~'~::-"~.~.'.'-."- . . .. · . . .
I.~ ..... ent~'l~'is.' e .~.
~'"~'" '. ~.: '.the .information reque.
/;~.?: .~ :.;. ..' ., . ... . ..... .. ·
.~:, .~ ~ fraudulent' or untrut~
. - '-on the
application;':
.~..~'::' :,:::: - compliance~ ~vith~-Sec
permit. ' '
'(a) Within twenty (20) days of receipt of
~ny application, either original or renewal,
the Director shall grant or deny the re-
quested pemit and give written notice to
the applicant as to the decision, ..
· · ih) The Director shall issue a permit to
the applicant unless one or more of the
· :-.(1) The applicant's enterpris~ is located
~,.,~-.: within '/50 feet of any school, church,'
r~,r" or, licensed day care center.. Mas-
,,:.. · - surementz shall be made ini straight
· ~.4' .. line;: without regard to' intervening
· ..::.,;~ '!~structures or. objects, from the near-
point on the property line of.'the
· .applicant's enterprise to. the nearest
?...~..-.= point on the property line of.the appli-
,7.,;*. cant's enterprise to the nearest point
' .,.c...0 'on th~ property line.of such school,
./..- church,, or licensed dayl.caxe center;
.~,. (2) The'spplicant!s 'enterprise is lo~ted
· -': :' ~ within. 1000 :feet o~' 'any other' enter-
this Article;- .
(8) The applicant has not fully complied
' ~th all State, Federal and local laws
or regulations affecting the conduct
of its b~iness; or ..
(9) The operator has had s permit r~-
...... yoked for the same enterprise within
. ' 'the one hundred eighty (180) day peri-.
. od next preceding the date that'the
· -~ application was filed. "'
hal applications shah be determined as of -
the time that the appllcatio.n Js filecL ~f a
renewal application is timel.y fried as. praT..
vidad in Section 2~-124, the. prope .t~y ;uses
and meas~ements for the renewal applies;.
tion shall be determined as o! the.time that
.th~' original application for the. enterprise '.
was.f~ed. If not timely fried, renewal.bp-.
plications shall,be subject to the. same fees
and ~hall be treated in .the same manner in-
'all res. pects as original appllcations~..~:!;r... ,' ' '
-~.'.= -priseI for .which. there, is':a permif:' .: .(d) In the event thai'the Diractor deter-,'
· ,.::~ MeasUrements shall be .made in .4 .... a .... t "'bi fo a
............... mines raa~ an pp~canc ~s no .en~ e r ', ..
..... scrmgnc une, w:t~onc regare to mmr ~,~i+ +ko o~nli~t ehvll be LriVm, v. ,m'..,~m ·
· . venmg s~-uc~tres or oo}e~s, rs-om me . · - ....... ' - .', ',. · . , · -..
.... :r;=':.-, ,...'.. ,,: .,, .: '., ,- ,. , 111 wl'll~ng ox. T~le:rea3oll~:.lor. T~l~ op,~nl~l.. ' ..'t
,. ,.., nesres~pomconmep~.~,,-eo: ...= ..... '; ' -'.;' .- - ...... '..
.; .y~..,:; ....... ;- .. . ,~ · . ... - ...,.. ,. : .- w~rJun z~ Gays o! rJ~e reeelpl.o! lis appllc~*' · ..,
.;. ~.~,,*, . :.,. o · .,- -. . . , o ..-' :.. . '~ o : *.~ - , ~ · . .~;
. ~,~' '~ - ,, ~. , . ...... .q~ ,~ ~'.*"'. ~ ~1 ~o ~ ~ ~.~s ~ uo ~ ~z*" · ~ . ...~
: "*. ~..' ~e ~. of su~ ~. anacreon s~l be ~ ~s ~ - - 1 ~:
, -'Y:,~C ....... .... . e -P ~
' . .~.. 1~. ~ shah ~ 1000, i~ and ~ ~elv 6le~:' ~' a-~l sh~] not s~v ~: ' '
' ' ..... ~pond ~ ~q.~dpo~t o~ a ~e'jo~. 'pe~ ~e app~t's ~h:mqu~t foF '
~g ~e '~p ~ ~t po~ 0n ~e_ a. h~g ~ s~' set out ~e '~.' on
"~' ~" bo~' of ~ ~c( ~n. w~' ~_ w~, ~e d~l ~ ~enge& :'~e h~'
":'";:"' :,.;" en~e.... -. ._'b 10~t :.. /7".:;; ,". ::~7,~/:,:' ~.;:, ~g s~ be ~ndu~! by a h~g
-: (4)':Tbe :applicant. .!alle.d .to :supply. all of
~;-......the :iniorma..tion. reques.te.d, .on the .apr..
: '=' :-Plicati°n;':c~-,:; ::,;':'.:~a'.':;~"- ~::~'" ":
"~. (5). The,applicant gave ma. terially-i~,lse;- '
· .., fraudulent or untrutlfful informationi.
· ... '. on_the application;L:: :.:.':!' :' ~.':-:'~ff '.; .!'
: · 'no{'.
, '· ::':.::'compliance' ~ith:Seetion· 28Z129 and
· '""¢:' Sectioh.28z130 'of tl~ A.i~ici~;':~i:.=
\*, ~-.: -=t~' .~Z: .;:.: -.'. ,' a.:,; .: :',..=:: ._'-~..,i-'- ..... -:"
to'. be designated by" the':Director.:':'Th~'
· hearing official shall ~iot'hav.e_'particii0ated
i~ any investigation br d~isi~n 'relating {o ,~
the..denial of 'the -permit,(.:!At the ;.hearin~'~-
tl{~: hearing '~fficial shall:~r~'e~iv~"bral-axM
t{a~:'."~'~H.' ~i~in~' sfiall l~e 'conducted. under;
consistent wi~ the ~amr~ of the proceed--
the Dh'actor 'gives notice of his sct~. on
the applica~on or the hearing official gives
notice of this decision on the appeal, or the
Cit7 Counci~ ~;otes on the appeal, as applica-
ble.
Section 28-126 Transfer upon change.
(a) A permit is personal to the owner(s)
and operate~iesignated in the application,
pr°vfded it may be transferred pursuant to
this Section. A transfer, application must
...... APPENDIX I--Continued
'ing~ and sltall ens~ ~at ~ ~ ~y
p~sent e~denee, c~ss~xsmine ~m~s~
~d ~ ~pmsen~ by ie~i ~6nsel.
(e) ~e h~g official shall conduct ~e
~ipt of ~e appli~t's ~n request for
' a h~g ~l~s ~e appli~t requ~ ~
. ~ion ~ ~g. ~e h~g
s~! render a ~n d~ion ~d ~sue
Sfibsection' (b) shall not .
~ shall be issued for the re:
· [~. the permit to be 'transferr
._ to rev~k~ a permit for
(5) days after the conclusion of the hearing.
The written decision of the hearing official
shall be final unless an appeal, is filed to
City ~oun~ pursuant to ~ection ~8-125(f).
"' (1) The applicant n~aY appeal the decision
be. filed by the tenth day next, following
any change of the .owner(s) or operator'
designated on the application. I~ the event
that a. transfer application is not timely
'fried, then the permit shall be invalid for
· ~ .. "'of the hearing official to City Council bY any purpose .relating to the operation of the'
i~_ "filini~'~'written notice of appeal with the enterPrise, and any tra~fer shall require-
~': ' ~ Secretar~ within fifteen (15) days st- and be treated all respt~ts ss sa original
!~_, . ~ the applicant ~s 'knven notice of the permit application. For purposes of mas-
!..~.. ' hearing official's decision., The' notice of ' surements between enterPrises under See-
;~ .. appeal shal~ be ~ccompanied by a memoran-
"3 : dura .or other wri~ng setting out fully the '
grounds for such appeal and all arguments
in support thereof..' The.Director may sub-
mit a memoranduni in response to the
memorandum filed by the applicant on ap-.
i~! to Oity Council.:: After reviewing such
tion ZS-12~X2) of this Code, an establish-
merit .for which the permit has become i~-
, valid by ope~tion .of this ,so,ion shall be
treated ss though 2 ~ a permit until the
permit, is revoked puts,rant to Section 28-
lffl of the Code and any appeal therefrom
· to' the City Council has'-been'conclude&.
-' , .memorand~ as well as the hearing .offi- . .. . · ·
::'" cial's written decision, and the ex in, its in-'..':' ih) The. Directoi shall Pr~m~ ~. for~
"trodueed at the hearing before the hearini~' ' on wMch permE trs,~fer npplicafio.~ shall ..
:"' offic~l,"CEy Coun~ shall vote to 'either be'made~ 'The form' sh-n include a stats-.
· , / .'uphold. or o~errule ~be hearing 0ffic~'s meat' under 0ith that the' Original. aPPlies-.
decisiom., Such vote shall .be taken 'wi~h~. tion 'rem-~,. correct as' previoas¥ sub-
.'.'f. fourtee'n(14) calendar days.s~ter.the, date mitted in all res .p.ect~ '~xcept those that ~re .
..,~. :. on which the 'Oity Secretary receives .the'..amended hereby.' Tbe transfer ~plication '
· ': : . notice of appeal.'.. However, all parties-shall · shall, contain a statement under oath
be required .to comply with the hearing, the~ndividmd signing the' transf~r'applica'
'!' official's dec~sion during the pendency' of tion has personal knowledge of the infor~
' ' the appeal The decision of the City Cou~ - mation Containe8 there~ and that the infor-
- ~] -shn!! be ~1 .............. :.; ;:.,... .nmtion ~s tr~e ~nd correct and shall not be
.- (~) Fs~u~ o~ the D~ctor t~ g~ve t~ely-: complete ~uless eeeo. m~ed' by. ~' nom~
· .. notice of, his action on an [application, or fundable tr~_~er fee of one hundred
," fat]ure of the;.hearing,offichfl to thnely, iars ($100.00).: .T.r~sfer appllcafio.as ahall.
.. " conduct or give notice of lgs dec, on on mi, . be filed in the same place und at the same"
· · apperd from the Director's de,sion, Or ~fl-.. ' time. ss origami applications ~n8 the. fee ..
ure of City Counc~ to vote ~on sn appeal:- shrdl be l~.vable in'the same mn,n~r as for '
from the. decision'.of, the hearing of:fieJat, ori~,~! application-~, as provided in Section
':.-"' issuance of 'teni~0r~' permit fipo'; :~,iaen. "(c) T~ansie~s shrdl be ~viewed,
· ' ' domed therefor filed by the-applicant with and sUbje~, to' appesJ in the same m,n~er"
. ' the Direr. r; Sushi .a temporary] permit as original apPli~tions, pursuant to Section
v stmil 0nly be valid unt~ the third ctsy after' 28-12~, except flint items (1), (2), and (~)of
(2)
person under seven~
age to enter an ent~
The permitted ent~
conform to the pm;
28-129 and Section
ticie;' '. ~. ,.?,.-.. ·
Three (3) or
tions of any of the
in Chapter 21, Ch:
22.011, or Sec~On
'Penal C.~ie er of
tained in tl~ Artk
on the premises of
occurred in.'.a eom
twelve 'months,
orator must have
such' vio¼tion~' to
a 'reasonable
/'_~r~'::"'.'.. original, renewal o
: ,~-. .~'-..t · .. ;..
'-
i~'''!':'''i~). The ~terprise
i couse . e
· i-;~_ ?~i:: "-'. ...... is d~e i~
.... co,, of
.... is
[~,:'((6) That there
I-~.'.:~ .. ' tion was not tim~'
"'"~'-~:"~' ""-:~ 'Section.
' APPENDIX I--Con' d
SubsectioE (b) shall not appl~, and ~ey
shall be issued for the remaining term of
the permit to be transferred.
~ection 28-12;/ ~Revoc~atio~ or Suspe~-
:i ~ion of Permig.
~:-' '.' (a) The Directershall ha~e the authority
~ to revoke a permit ifor any one or more of
:.~: tWe following rem~ns:... , '...
.~?'.~'.'. (1)'The owner o~0perst~r of the permi{-
17'~::~-' ;'' ted enterprise knowingly allowed
[.~.i - i"' person under Seventeen (17) years of'
~t. ::" age to enter an enterp.rise;. _;i '
~,~.L., (2) The permitted enterprise .do~S'not
[~.:.~ ~..: ... conform to the provision~ of Section
'E'~.: '"-~ 28-129 and Se~on 2B-la0 of this Ar-
~:: ', title;'-. :. ,:,'~::~ ..... .
,.~ ' ;, ·
-.. (3) Three (S) or more e'umu]ative
"'l.:~i~..'.::" "' ~' ': tions of an), of the offenses contained
~ .', ~ . in. Chapter 21; Chapter 4S;' Section'
22.011, Or"See~on 2g.021 of'the Texas.
.:::.":_'.~'.'.,.~ Penal Code or of the offenses' co~
. t~ed in t~ Article:haVe occurred'
~?:i?~'' on the premises of the Permitted en-
~'. '~)-: . terprise, These violations must have.
~) ~or ~ ~v~fion of a .ni~ ~e
D~c~r shah ~vesfi~ ~e ~un~
leged W de~e whe~er probable ~u~
for ~vo~tion may exist and ff so, shall
no~' ~e o~e~s) and o~r in ~g
of re~ons for ~e pro~sed revo~fion and
~nt suc~ o~effs) and o~r ~e
~1 ~ ~ desi~a~d by ~e D~mr at
~e and pla~ z~c~ed ~ su~ nofi~.
~e h~ng 'offi~al designed sh~l not
'have pa~eipa~ ~ any ~ves~ga~on
~e alleged ~un~ for ~e ievo~fion.
Such h~g s~ll ~ held not ie~s
~en (2~ days a~r ~ ~o~ee b ~ven;[
He~ ahab ~ conduced under
~sued by ~e D~e~r.. S~ ~ ~ll
~nt ~' ~e ~e. of ~e p~d-..
~ and shall em~ ~t ~ch p~ maY..
p~sent e~den~, ~oss~e ~ses "
~d be rep~en~d by legal ~eL- ~,.
~r ~e h~g, ~e h~g offi~.g~.
thgt ~e ~it should. ~'revoke~ he ~h~ . --
'~sue a ~n order ~vo~g'~u~ ~ .
whi~ ahgll ~ e~ecfive on ~e.~ ~y,
~ nofi~ ~ereo~ ~ ~ven ~ ~ o~L.
(5). The' enterprise. lu~ been closed~ for
business 'for a. period of thirty. . (80)
: consecutive d~;, unless sUCh closure
'"is due' t~ Circ,~m.etances. beyond the'
~-~" "' twelve'months,' and the owner or.bp-
i(' :- "' erator must have knowingly, allowed'
.~,.!,."--'." -- such: violatious to occur .or: did ~ot
,~'~-i-:..'-;" ,a:,-'maki~ '~ 'reas0n~bl~' effort'~m' prevent
"" ~,~,';:;:"the gecurmuee of such ~iolafions;:%
': .(l)'The operator' of the ~
~.'-:!L..' .:"' . prise gavo' materially .false,
..-'
..... .' len~ or untruthful information'On th~
:"i...'.'"u=. ;;&'.:
· control of 'th~ .Ow~e:, and the owner.
.... -: is procpedin~ with due diligence, giv- .
"e~ all attend~t circumstances, to re-
open th'.e e. stablL~k~ent; ",:."- ......
(6) That there was .a change of. owner or
.-- _ operatorfor:whie]i .a trans~'r, appli~-
.... tion was not timely'filed pursuant to.
tor. L. It the heating' officer"determines,.
based upon the nature of the violation, that. ' :''?'
the ends of justice w~uld be se~ed by a' '.'
. s~spe~s]on'Jn lieu of a revocation,.he may [ . .
' s'uspend the Operation 'of the"p~z~'f°r ~"" '.
· peri.'od'of tithe to b~.h~ated.'~e'o~aet. 0f'..."
su~ension~ pat.' to' exceed '.two'.(~}'montl~?
bower'er; a susi~ensioh may no~ be ordered' '..
ff the grounds are based upon item ($)' Or'~"
(T) of Subsection (a);. above?-'!',.d~.':
:(: '(e).T~e:owne~(s) or'ope~to~ Sk~ll h~e
· the right to appeal an order og the hearing .
.'., official revoking a permit to th,e City Ooun- .'
· e~ tn aceorannee with 'the procedure set '.:.':'
fort~ in ~ec~on 28-12~(i~ by delivering .no-. '.
rice o! appeal to the City Secretary
;~=~teen {15) anys ~ notice gs g~ven to the ' .": ...
owner(s) and.operator oi the orde:,.-...'=.Thil..',.
61i~g. of.~n appe~l of a revocation to the
City. Coun~ shall no~ l~ve ~.e effe~ 'of.
supers'ecling or s~pending the order of the.":
Dire.cWt.' Orders .suspending Pe.~d.ts shaZ1. :' .
not l~e subje~ to any appeal..:;":: '
That the permit shodld'iiot-hav~ been :'.. (d) An enterprise shall be 'ti'eatedas h~v-.'"..-....-
issued pursuant to the .~-iteria of See[ in~ a permit for purposes of.'ineasurements" "'~: .
ti0n 28-125.of. .this Article'.xm'':'-' ."under Section' £~-1£5{b)(2)' of this' Code;-
· ':~ · ~, .. ': :. .: -. ...
1384 aaa
APPENDIX l--Continued (2) the exterior portions of each individu-
pending the date for filing an appeal of a al unit in the commercial multi-unit
permit revocation, and if an appeal is filed, "center, including the exterior portions
pending the disposition of the appeal by the of the regulated establishment are
-City Council. An establishment holding a
suspended permit shall be treatefl as" haw
~.~ . Lng f, permit for the purpose of measure-
' meats made under Section 28-125{bX2).
'.: Section 28-128' Other Permit Provisions.
.' '(a) Z[ permit is valid only at ~he location
.:,. for which it is issued. *
co) shall ior any pe on
i ~! counterfeit, forge,, change, d. eface,, or site.r..
· ' (c) A permit may be cancelled upon writ- '
· ' "ten request of the owner(s) or operator and
[ . surrender Of 'the permit.itself to the
rector;.-: 'Permits shall be .surrendered at.'
'. !i" the same place and at the same time si
3' permit applications ~s provided in Section
~ - 28-123 of this Code. The'surrender of
".. permit shall be effeCtive'.upon its filing in-
the office of :the Captain of the Vice Divi.
Section 28-129 ' Ezt~io~ ~Po~tio~z 'of ~-.!
~ . ~d by ~e pm~m~ of ~ ~cl... . (2) one or ~;~ of ~e fpno~g p~-
- {v) Adult ~ge
~ .'-. of s ~mme~ m~t cen~ '. (3) ~m,~ si~s. for Ad~t
painted the same color az one another
or are painted in such a way so ns to
be f, component of the overall archi-
tectural style or pattern of the
mercia! multi-unit center.
'(ti) Nothing in this Article shali be co.
,strued to require the painting of an other-
wise unpainted exterior ,portion of a 'regal'
lated establishment.
Section 2s-~0..'.Si'~'~": "~' ' "'
(a) lqotwithstanding Chapter 46 of the
Building Code or any other City Ordimmce,
Code, or regulation to 'the contrary, it shall
be unlawful for the owner or operator of
any regulated establishment or any other
person to erect, ~?struct, or msintai~
sign for the regv~a, ted establishment, other
thsa one 'primary sign.' and orle.'secondary
sign,'. ~ provided hereln-"... :.., 7 ...'"'
(b) Primary signs shall have n~ mor~
tha~'two (2) display surfaces: Ea~ such
APPI~IDIX I--Co~
phrase, 'Movie Titles
(d) Each letter forming
mary sign shall be of n solii
'such letter shall be the
size and' color,' The i~cl
' f,uch lettering on the dispi;
primary sign shall be of
solid color,~ .' ·
(e) Secen~ signs shall
.(1) display.surface, Such
shalh '
(2). n.0t exceed 20 squat,
"-~ (S) not exceed five ih')
four (~). in width; anC
be ~xed or attachecl
d~-r o! the establishr
(f) The provisioni of ite~,
finn Ih)and 'Subsections
also ~,pply to scenarist.
'Sectlen 28-181 ~, Per~n.s
' tn,imt...- .' ':.'-'
is yenneer'than sever,
'~-~mlsted establishment at
be the' duty'of
esUd~lishme:
"attendent 'h stationed
"entrance to the regulated ~
all.iimes during such reL~
menffs regular businen ho:
the duty Of the attendant ~
pe~on' under the age of
knew.f, person was Under t
teeh (1'/) unless SUch atte~
wa~ fu_mished (1) a ~
commercial operator's, or ~
license, or 12) a valid !
certh'icat~ isSUed b:
" of Public Safer.
(d) Each letter forming.'s word on a. pti*
nmry sign shall be o! a solid color, and each
such letter shall be the same print-type,
size and color.- The background behind
such lettering on the disphy surface of s '
primary sign shall be of. a uniform and
solid color. -- , '
"{e) Secondary signs shall have only one
(1) display surface. Such display surface
shall: "
. :. (1) Y~ a fiat plane,:: rectangular in"shaPe; .
;. (2) not exceed 20 square feet in area;.
· ' ($) not exceed five'($) feet in height and -
- (4) be affixed or attached to an~; wall or
:-:" door of the establishment; and .'"' :.'
. (t) The pro~isi0ni of item (1} 'of Subece''
tion fo)' and 'Subsections (c) .and (d)'shall .
also apply to secondary signs.-i: ..:~' .~.
Section 28-1111: .Peraon~ ¥oun~er tha~ J7--
~,ohibi~d'.from Entrlti: ..4tten~n~- Re-'
regulated establishment at any time that.
the regulaled? establishment' is "open. 'for
regulated establishment to insure that, ·
'is stationed at. each public, i
entrance to the regulated establishment at"
all. ~imis during such regulated establish-
ment's reguiRr business hotlrs[' It shall be
,. the duty of the lttendant ~o not allo~ any'.'
person~ under the age of 'seveuteen. (17):
years to enter the regulated establishment.
It shall be presumed that an. attendant ·
knew a person was under the are of seve~- ' '
teen (17) unless Such ~ttendant asked
'and was .fungsbed (1) a valid operator's;~
commercial operator's, or chauffeUr,s driv-.'.:
er's license, or (2) a valid personal identiff~
c~/tion certificate, issued by the Texas De-.
part'cut' of Public Safety reflecting .that.:'
such .person is ieventeen (17) years of age
{a) 'It ~,hall be ,mi-wiul to alio~ a'person this Code. ' ..... ': ' '"" '"'
who is younger tium s~ventee~ (17) years". .. · '" "" .
ag,' ,,"-'o, be 0, th, '" ? th "" ............ ea .' ........
who is desi~Zated on the permit application'.'
(a) A~y notice required or permitted to.
be ~ven by the Director or any other City
office, division, department or other agency
under this Article to any applicant, oper~-,
tor or owner of an enterprise nmy be given
either by personal delivery or by certif~
United States mail, postage prepald~ return.
receipt requested, addressed to. the meat
recent address ss specified in the applica-'
tion for the permit, or transfer application
which has been received by the Director, or. ·
any notice of address clulnge which has
been received by the Director. Notices
mailed as above shall be deemed given
upon their dePOsit in the United States
ma~..- In .the event that any.notice given by
mail is returned by_the Postal. Service, the..
Director shall cause it to be posted at the
principal, entrance to: .the establishment..
be given to the'.Director by any person
under this Article shall not be deemed giv-.'..
en until and unless it'is 'received in the ·
office of the Cap.t .of thi..Vice Division at"
the time(s) and in the manner provided lot~
filing of applications in Section 28-12~a) Of
and each operator to' ivrnish notice'to thS;' ·
Director in writing of any ~,l~,,ge ..of resF.
deuce or m. ~,i~g address. ['-' ~".:" :: · ': '
Vioh~tion of.any.provision of 'this ArUcle:
t~t is not' otherwise p-nL~i~ble pursuant.
to Article ~7~w, Texas Revised .Oi~ Stab.
utes, as amended, shall be punishable by a..
fine of not :less than one .hundred fifty .- -
dollars ($150) nor more tha~ tw9 hundred
dollars ($200). Each day any Viohtion con. ..
t~nues shall constitute and be pnnl-ehRhle as .'
a separate offe~e.._ .: ' ' '" .:::.
Section .28-134' A'utiori~/ to Pile Suit...:..:
· i~ae. City .Attorney g hereby' authorized)
to fili"suit 'to' enjoin' ~e violatioh' of thig":' '"
Articlef,:.-.'.:>~ .,; ..-.:,.:. -,,..~ i:-:f[ .- ..,..
.~....[:.-?...:'~.'.'. . ....:... ~-o·. .... .. ,~." , ..-,..,, - .-.
· Secti~on. ~.. H any provision, sectio~
section, eute ce, 6i sej'°r phrase of.
0rdin~nce, or the application of same to. '.
.~! " efft~ as p~ovlded in ,%ction-'l~abev~.
2. Con~Litution~ L~*~
· Cou~uty deput~ sheriffs did not have
property interest in overtime pay which
vested when Supreme Court announced
cision in Garcia v. San Antonio M~tro
Tran.~it Authority, making minimum pay
and overtime provisions of Fair Labor Start-
'X, ChambeTM County, Texas.. "-~."c :.:,.,r-.;:
~, '_ ...... .'" ci,:~. ~."c~0si~'' ';'" :~?'"'"':
~{ '.-:,-_,: ..:~i ,,..' :; :: .... . ....... ;...'~,,. '...:,::
· dtr~ Act applicable to states. Fair Labor
" " *'"~ : :' '"-" "'" ' Siandards Act of 1938, §§ 7, 16, u amend-
· Danny Jackson, James Golleher.' Coast. Amend. Ili . ......
'"' "and John Fountain ......
cmomEaS.' cotwr~,.' ~,XAS,.. and "s,=~;nj-of ~'ir 'Labo'= S~'~'ds.
Sheriff C.E. Morris, Individually and in ...... '
'.~mendments of 1985' delaying application
of-~virtime' provisions of Fair Labo~ .qtan-
dar~' Act'to 'stat~.un~l one.ye~, niter
decision in Ga~'da v. Sa~ Antonio'
~' ..; United Stales District Court~l. :..~:.:. ~mnsii'Autho~ity, making minimum p~y
9o>. . . .
' '" ..... '~'":' ~ i-"' ;:-q.D.;,.Texns,~i- ,',~.':-eu :: '~:~ and 'overtime provisions of FLSA apph.'cable
' ,~: :... .;_-. i..Galves, ton .Di~ision....~ : ..( .... ~:. to states, did not violate due pr6cess.:, :Fair
· = ' .= b'.... "i,'19s6 sta, d, ds
· .."~..'~ ......... · '"'.' "' "'~"( ' § 2(c)f'28 U.S.C.~: § 216',hotel'
-.. "~?c~untY-dePutY"sheriffs ~;rought action ~..'~e'nd iil,4i!~:j. ['!. -;.[.~' [.=.."i"i; ..'?i'
· . :. against county and ~ounty sheriff seeking: :";"~'"":_',"~.~" ";_ff',[j" '"~:[.~'"'~
'.'.f overtime=. compensation.... On defendn_nis':: .~.~l,aoor y. emuons ~,l;3~l:!/',.j' [..". 'J'~,':
- ." motion for sUmnm~ judgment, the District. ':-.; Fair Labor Standards Act did not pro-'
'. Cour~ Hugh Gibson, iJ.,.held that: (1)plain-I- vide',for._n, p. ri..vate imuse of gc?.on basedon ·
· .-.,. tiffs:did not.have' vested'prOperty interestj' emplo.y.ers alleged[f~ure .to'.k. eep .r~. r~.
::. :' in.ovin~me pay;but (2)'defen~n-~sZ ~,nure: - si req~l by'ActJ"'..l~r ~abor Standards'
..' lo brief, issue, oP.whether'its ~tctions werec Act of'1988;.'§§."11; Il(c); 16;' 'as' amended,'
'1. Constitutional Law
State couM deckle ~ot
to county deputy ~berilts
.'equal protectio~ 42 U~.¢
,.C.~ .const. Amend. 14.
& Federal Civil
:~,.~ In action by county
agsin-t county and county
leputies' allegations that
~ ag-i-~t u rosult of
overtime, in violation of F~
.defenchmts' failure to bile'.
:"er ~ actions were justifie,
mary judgment. Fed.Rul
· 56, 28 U.S.C,A~."
~. Consph'acy ~s'18 .f'
County deputy
. :thitt county and county
obslrnct justice, in a
threatening and intimidati~
er potential witnesses be.
suit seeking overtime cc:
to state ¢lnlm
-10. Civil Right~
,.,':.-County deputy
federal ~ rights statw
! intimid~ion for-aeeki-
t ~tated violation:
.;:' ' justified-'.precluded summary judgment on 29 TI~q.C.A.' '§§ 211, ,.211(~, 216; .U.~.~**..Ar
":?. In action ~mllenging.c0ns~mtionnlity~' edy :[or county's alleged::ia~ure ,lo pay ~..2...
of .Fair. Labor;. Standards Amenchhen~- of.
1985, certifying Copy 'of order upholding-
constitutionality of the amendment~ to st-'
torney general and entertaining his motion
fo~ reh .e~ug'ff he ;believed 'that interve.~."-
tio'g .~'as ~'~eq~ired ' met ' requirement' that:'.
attorn~y"~neral be given ~otiee ~nd'Spl~or~'
overtime .to. its. deputy.sherlf~,. 42 U--q. '
C.A~ § 191~; 'Fair Labor Standards.Act of
1938, §§ 7, 16, as amended,. 29..U.~.C.A. ·
§§ ,2q?, 2!6d. :-':-;--.'..:._ ..-:.:.~,.-.::. :-..,,":,'..:;:.; .::: ..
· .. * .. ... - . ...... -.. . .... · ~..~...~ . .
· 6. Constitutional Law ~=,278.4(4)'* '-~' ......*
timitY:to inte~ene if :constitutio'nalit~: of. ~heriffi for. 6~erSm~ did n0~'[d~prive' them' .
federal legislation 'a!fectinR Public interest" -of due pi-ocess" ~here Sheriffg could have...
is "-' challenged.:. Fa[f:: -Labor" Rtandardsi" st~ed in state court t~. rearer.', dmi~ges or - '"
A[mendment~ of 1985, §. 2(c), 2~ U.S.CA-' ' obt~igea:~:it'of ma=itamus o~dering:pa~!i..
~"216 nb~j..-.¥~ci.:Rules'. Ci~;:Prod:R/tl~ 24(c), n~eni-' ~ U.S.C.Ai'§ 1983{ U.S.C.A.'Con.<t`'
J/18/86
19196
' ORDINANCE'NO. --
An ordinance amending the;W~l~?,-~J~-~j<~j~~Jamend~d, by
adding CHAPTER 41A, "SEXUALLY ORIENTED BUSINESSES,". to be
comprised of Sections, 4lA-1 through 41A-23~; repeal,~n,g Sections
31-24 and 31-26 o~ the Dallas City Code; providin9
providing fo~ licensing and regulation of sexually oriented
businesses; regulating the location of sexually oriented
businesses; providing for enforcement; providing a penalty not
to exceed $1000 for cer_~tain offenses, and ,deslgn{ting certain
other offenses as class B misdemeanors; providing a
severability clause; and providing an effective date.
WHEREAS, the city council makes the fo, llowing,find, ings wit~
'. ' '~.~ ',',, ~ ~ ~.' ' ~ ,.~ /'51;:':-~ · ' · ~.'~ ~'~
regard to sexually oriented establishments~
(1) Article 1175, Section 23, of t~ Revised Civil
Statutes of Texas authorizes home rule cities.
lawful business, occupation, or calling ~hat is s~sceptib~e
the control of the police power.
(2) Articl~ 1175, Section 34, of the Revised Civil
· , , ~,'~ ~
Statutes of Texas authorizes home rule cities" to enforce all
.' .... ~ : [t'? ' ~ ~ ' ·
ordinances necessary to protect health, life, and property, and
· /...,~,~ . ~f~'~ ,'~
to preserve the good government, order and security of such
cities and their inhabitants.
(3)
There are a substantial number of sexually oriented
businesses in the ~_cy that .require special
~pervision from
the public safety agencies of the city in order to protect and
_ preserve the health, safety, and welfare of the patrons of such
busineses as well as the citizens of the city.
(4) The city council finds that sexually oriented
businesses are frequently used for unlawful sexual activities,
including prostitution and sexual liaisons of a casual nature.
(5) The city council further finds that the city police ~'
have made a substantial number of arrests for sexually related
crimes in sexually oriented business establishments.
(6) The concern over sexually transmitted diseases is a
legitimate health concern of the city which demands reasonable
.;
regulation of sexually oriented businesses'in order 'to protect
the health and well-being of the citizens.
(~) LicenSing is a legitimate and
accountablilt~; to~ ensure-that 6Perato?
businesses COmplY with reasonable regulatio s and to. ensure
~'? '..;,i~;o~ ~t~,:t I~.,
'that operators do not knowingly allow their establishments
be used as places of illegal sexual activit~ o~ solicitation,
(8) There is convincing documented evidence that sexualiy
oriented businesses, because of their very nature, have a
deleterious effect on both the existing businesses around them
and the surrounding residential areas adjacent to them, causing
increased crime and the downgrading of property values.
(9) It is recognized that sexually oriented businesses,
due to their natur,, have serious objectiona _= operational
characteristics particularry when they are located in close
proximity to each other, thereby contributing to urban blight
and downgrading the quality of life in the adjacent areas.
(10) The city council desires to minimize' and control
these adverse effects and thereby preserve the property values
and character pf surrounding neighborhoods, deter the spread of
urban blight, protect the citizens from increased crime,
preserve the quality of life, and protect the health, safety,
and welfare of the citizenry; and
WHEREAS, the city council makes the following findings with
regard to the licensi, ng of sexually oriented business~
establishments: ':~
(1) The city council believes it is in the interest '°~{*the.~'~;];"';.,.
public safety and welfare to .prohibit persons convicted of
sexually oriented business. ' ...........
(2) The city council, in accordance with .Article.6252-13c .-
of Vernon'S Texas Civil Statutes, has considered the l/owinq~'~:'
criteria:
(a) the nature and seriousness o'f the crimes;
(b) the relationshi~ of the crimes to the pur~osos
for requirin~ a l~cense to engage in the occupation~
(c) the extent to which a license might offer an
opportunity to engage in further criminal acti'vity of the same
type as that in which the person previously had been involved;
and ~ ....
(d) the relationship of the' crimes to the ability,
capacity, or fitness required to perform the duties and
discharge the. [e~ponsibilities of the licensed occupation'; and
has determined that the crimes listed in Sections 41A-S(a)(10) '
of CHAPTER 4lA, "SEXUALLY ORIENTED BUSINESSES,' of the Dallas
City Code, as. set forth in this ordinance, are serious crimes
which are directly related to the duties and responsibilities
of the occupation of operating a sexually oriented bUsiness.
The city council has further determined that the very nature of
the occupation of operating a sexually oriented business brings
a person into constant co~tact with persons interested in
· : ,~ ', !
sexually oriented materials and activities thereby gt~ing the
· person repea~ed opportunities to co.it offenses against public
' ' ...... [':n 1~ ~ '~"
order and ~,ecency or crimes against the public health, safe~y~
-, ~,~..~., ,~, .,~..,.~,.,,..~?.~...~ .:.,.~ ...~ ,,.,,:~,.~,,~
~'W.Or morals should he be so inclined. Thus, it ~s the
'the city couhcil that the .listed crimes render a ~erson unable,
incompetent, and unfit to perform the duties,..
responsibilities accom~anyin~ the operation of a sexually
oriented business in a manner that would pr6~ote the ~ublic
safety and trust.
(3) The city council has determined that no person who has
been convicted of a crime listed in Section 41A-5(a)(10), as
set forth in this ordinance, is presently fit to operate a
sexually oriented business until the respective time periods
designated in that s~ ~ion have expired.
(4') It is the intent 'of the city council to disqualify a
person from being issued a sexually oriented business license
.~.by the city of Dallas if he is currently underindictment or
misdemeanor information for, or has been'-convicted within",the
designated time period of, any of the crimes lis{ed in Section
41A-5(a)(10), as set forth in this ordinance; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS:
SECTION 1. That the Dallas City Code, as amended, is
amended by adding CHAPTER 4lA, "SEXUALLY ORIENTED BUSINESSES,'
to read as follows:
'CHAPTER 4lA.
SEXUALLY ORIENTED BUSINESSES
SEC. '4lA-1. PURPOSE AND INTENT. ~ ;- '
(a) It is the ~urpose of this chapter'to re~l~te sexually
oriented businesses' to promote the health, safety{" morals, and'~
,.,=.. general welfare of the citizens of the city, and to
' . ?.. reasonable and uniform regulations to prevent the~, contin.ued":'
concentrat {oh~' of~'~'sexua lly <odieh'~ed ~usine~ses *wi ~i~,~
effect of imposin~ a limitation or restriction on thm con~ent
of any co~unicative materialS,' incl~di',~ 'se~hk]%y ~6tiented
materials.. Similarly,. it is not the intent, nor e~f,ect of this
chapter ,'to ~estri~t "~f "d~n~ 'i~cCess "~b-~'~%'d21t]V~
oriented"mat, e.rials protected bY the Fitst"~end~edt~ or'!~o' ~'~eh~".'
access Dy the distributors' and exhibitors of s~xUally-oriented
entertainment to their intended market.
(b) it is the int~nf' of the city~'cbuncil'~'that ~he
locational regulations of Section 41A-13 of thiS"chapter ~re
promulgated pursuant to Article 2372w, Revised Civil Statutes'
of Texas, as they apply to nude model studios and sexual
encounter centers only. It is the intent of the city council
that all other provisions of this chapter are promulgated
pursuant to..the Dallas City Charter and Ar.ticle 1175, Revised
Civil Statutes of Texas.
5
19196
SEC. 41A-2.
DEFINITIONS.
In this chapter:
(1) ADULT ARCADE means any place to which the.,public
is permitted or invited wherein coin-operated or slug~operated
or electronically, electrically, or mechani6slly
still or motion picture machines, projectors, or other
image-producing devices are maintained to show images to five
or fewer persons per machine at any one time, and where the
images so displayed are distinguished or characterized by the
depicting or describing of 'specified sexual activities' or
'specified angtomical areas.'
(2) ADULT BOOKSTORE or ADULT VIDEO STORE means a
commercial establishment which as one of its principal business
purposes offers for sale or rental for any form of
consideration any one or more of the following:
(A) books, magazines, periodicals or other
printed matter, or photographs, films, motiqn Pictures video
cassettes or video reproductions, slides, or other visual
representations which depict or describe 'specified sexual
activities' or 'specified anatomical areas'; or.. ..~ .~,,~ ,.
(B) instruments, devices, or paraphernalia which
are designed for use. in connection with .'speCified,,.,.sexual
activities." . .~
(3). ADULT .~BARET means' a ~ .... '"~:~ "~'~u~:~"5~:' ~r~nc';'~"~ "''~:':''~'
DC simi~a~ co~erc~a1 es~ablishmen~ which cegulacly,.Jea%u~es:...
(A) .persons who appea= in a state~ o~,~nudf~Z~:.o . ".
(B) live performances which are chifa~.f~fi'~d.b ,~. ~.,
the exposure of'"specifie~ anatomic'al areas'
sexual ac.tivities"; · or ..
(C) films, motion pictures, 'videp ':casset'tei'''' : ....
slides, or other photographic reproductions Which are
characterized b7 the depiction or description of ."specifie~
sexual activities" or "specified anatomical areas."
(4) ADULT MOTEL means
commercial establishment which:
a hotel,
motel or similar
(A) offers accommodations to.the public for any
form of co~'sideration; provides patrons wifh closed-circuit
television transmissions, films, motion pictures, video
cassettes, slides, or other photographic reproductions which
are characterized by"the depiction or description of "specified
sexual activities" or 'specified anatomical areas"; and' has a
sign visible from the public right of way which advertises the'
availability of this adult type of photographic reproductions;
or
(9) offers a sleeping room for rent for a period
of time that is less than 10 hours; or , ,. ~ ~. .' !' ...,' ....
(C) allows a tenant or occupan~ ~ ~'
of a sleep'lng
room to subrent the room for a period of time that is less than
10 hours. ,
(5) ADULT MOTION PICTURE THEATER means a commercial
establishment where, for any form of consideration, films,
motion pictures, video cassettes, slides, or similar
photographic reproductions are regularly shown which are
characterized by the depiction or description of ~specified
sexual activities' or "specified anatomical areas."
(G) ADULT THEATER means a theater, concert hall,
auditorium, or similar commercial establishment which regularly
features persons who appear in a state of nudity or live
performances which are characterized by the exposure of
'specified anatomical areas' or by "specif. ied~., sexual
activities.' "
(7) CHIEF OF POLICE means the chief of~ P°lice.0~the
city of Dallas or his designated'agent.
:(8):/ ~SCORT, means..a person who,
agrees or offers 'b° ac't'a~',a
another person, or who agrees or offers tO
lingerie or to privately perform a striptease.,:,.~ot,;another
person. .
means a person
(9) ESCORT AGENCY . . ,,or. , business
associati%n 'who furnishes,, offers to furnish, 0r"~dvertises'to
furnish escorts as one of its primary business"p~D°seS, "fo
fee, tip, or other consideration. -~
(10) ESTABLISHMENT means and includes any ~f the
following:
(A) the opening or commencement of any sexually
oriented business as a new business;
'- (B) the conversion of an 'existing business,
whether or not a sexually oriented business, to any sexually
oriented business;
(C) ti.~ additipn of any se...ally oriented
business to any other existing sexually oriented business; or
· . business.
(D) the relocation of any sexually oriented
(11) LICENSEE means a person in whose name a'.~license
to operate a sexually oriented business has been issued,
well as the individual listed as an applicant on the'
application for a license.
(12) NUDE MODEL STUDIO means any place where a person
who appears .in a state of nudity or displays "specified
anatomical areas' is provided to be observed, sketched, drawn,
painted, sculptured, photographed, or similarly depicted by
other persons who pay money or any form of consideration.
(13) NUDITY or a STATE OF NUDITY means the appearance
of a human bare buttock, anus, male genitals, female genitals,
or female.breast.
(14) PERSON means, an individual, proprietorship,
partnership, corporation, association, or other legal entity.
(15) SEMI-NUDE means a' state Of dress 'in. which
clothing covers no more than the genitals, pubic region, and
areolae of the female breast, as well as portions of the body
covered by supporting straps or devices. '.~'
(16) SEXUAL ENCOUNTER CENTER means a business or
'--.:!~Commercia'l enterprise that, ~ one of itse'~r~mar~bUs~ness
purposes, Offers for any form of consideration: : ~ "". ' ..
(A). phySiCal contact in the' form !of wrestling or
tumbling between persons of the opposite sex; or
(B)
p~rsons of
and/or
is in a state of nudity or semi-nude.
(17) SEXUALLY ORIENTED BUSINESS means an adult arcade,
adult bookstore or adult video store, adult cabaret, adult
mote[~ adult motion picture theater, adult theater, escort
agenc¥, nude model studio, or sexual encounter center.
actiVitieS between male 'and female persons
the same sex when one or more of the~'persons
(18) SPECIFIED ANATOMICAL AREAS means human genitals
in a ~tate of sexual arousal.
(19) SPECIFIED SEXUAL ACTIVITIES means and includes
any of the following:
(A) t,._ fondling or other ero..c touching of
human,genitals, pubic regiop, buttocks, anus, or female breasts:
(B) sex acts, normal or perverted, actual or
simulated, including intercourse, oral copulation, or sodomy;
(C) masturbation, actual or simulated; or
(D) excretory functions as part of or in
connection with any of the activities set forth in (A) through
(C) above.
(20).SUBSTANTIAL ENLARGEMENT of a sexually oriented
business means the increase in floor area occupied by the
business by more than 25 percent, as the floor area exists on
June 18, 1986.
(21) TRANSFER OF OWNERSHIP OR CONTROL of a sexually
oriented business means and includes any of the following:
(A) the sale, lease, or sublease of the business;
(S) the tr. ahsfer of' securities which constitute
a controlling interest in the business, whether by sale,
exchange, or similar means; or "I:'
(C) the establishment., o~ -a ~ttus~,., glft,~, or~,:otheT~
similar legal device which transfers the ownership,,.or,..co'ntrol~..,.
of the business, except for 'transfer by bequest or other
operation' o[;'law Upon the death 'of the person',~p.o.e.sessing
ownership Or'~ conffol~'~ '-. : ~: ,~'~,;ui~.{'~j;b~
SEC, 41A-3 · CLASSIFICATION, '
SexUallT'oriented businesses are classified as~
; ,:'~ ~ . ~,~ J~
~(1)- . adult' arcades; ...
(2) adult bookstores or adult video stores;
(3) adult cabarets; , .~,., ....
(4) adult motels;
(5) adult motion picture theaters;
(6). adult theaters;
(7) escort agencies;
(9)
nude model studios; and
sexual encounter centers.
SEC. 41A-4. LICENSE REQUIRED.
(a) A person commits an offense if he operates a sexually
oriented business without a valid license, issued by the city
for the particular type of business.
(b) An application for a license must be made on a form
provided by the chief of police. The application must be
accompanied by a sketch or diagram showing the configuration of
the premises, including a statement of total floor space
occupied by the business. The sketch or diagram need not be
professionally prepared but must be drawn to a designated~ scale
or drawn with marked dimensions of the interior of the premises
tO an accuracy of plus or minus six inches. Applicants who
must comply with Section 41A-19 of this chapter shall submit a
diagram meeting the reguiremehts of Section 4~A-19.
(c) The applicant must be qualified according
provisions of this chapter and the premises must be inspected
and found to be -in compliance with the law by the~ health'
department, fire department, and building official. ,,. .; ~ ,.
(fl) If a person who wishes to operate a.,'sexua~lFw;.oriented~.,:~
business is an individual, he must sign the .appliCa~iOnn.fgr
license as applicant. If a person who wishes"to "operate a
sexually oriented business is other than an individual~ each
individual who has a 20 percent or greater~.interest~'~,in .~he
business must sign the application for a license as applicant.
Each applicant must be qualified under Section:'41A-Sa~nd ~each: ~:.r~
applicant shall be considered a licensee if a license is
granted
(e) The fact that a person possesses a valid~,~the&ter
license, dance hall license, or public house of amusement
license does not exempt him from the requirement of obtaining a
sexually oriented business license· A person who operates a
sexually oriented business and possesses a theater license,.
public house of amusement license or dance hall license shall
comply with the requirements and provisions of this chapter as
well as the requirements and provisions of Chapter 46 and
Chapter 14 of this code when applicable.
10
SEC. 41A-5. ISSUAN~_ OF LICENSE.
(a) The chief of police shall approve the issuance of a
license by the assessor and collector of taxes to an applicant
within 30 days after receipt of an application unless he finds
one or more of the following to be true:
(1) An applicant is under 18 years'of age..~ ~.' .~ .~i-..,~
(2) An applicant or an applicant's spouse is overdue
in his payment to the city of taxes, fees, fines, or penalties
assessed against him or imposed upon him in relation to a
sexually oriented business.
(3) An applicant has failed to provide information
reasonably necessary for issuance of the license or has falsely
answered a question or request for information on the
application form.
(4) An applicant or an applicant's spouse has been
convicted of a violation of a provision of this chapter, other
than the offense of operating a sexually oriented business
without a license, within two years immediately preceding the
application. The fact that a conviction .is being appealed
shall have no effect.
(5) An applicant is residing with a person who has
been denied a license by the city to operate , a sexually.
oriented business within the preceding 12.months, or iresiding.
with a person whose license to operate a sexually oriented
business has been revoked within 'the preceding.3.12 months.
(6) The premises to be used for the'~sexually oriented
business have not been approved by the health department, fire
department, and the.' building' official ~as being in compliance
with applicable laws and ordinances.
"(7)' .The l'icense .fee required by this_chapter
been paid.
(8) Ana. pplicant has been employe~ .~in '. a ~ sexually
oriented business in a managerial capacity within the preceding
12 months and has demonstrated that he is unable to operate or
manage a sexually oriented business premises in a peaceful and
law-abiding manner.
(9) An applicant or the proposed establishment is in
violation of or is not in compliance with Section 41A-7,
41A-12, 41A~13, 41A-15, 41A-16, 41A-17, 41A-18, 41A-19 or
41A-20.
(10) An applicant or an applicant's spouse has been
11
convicted of or is u.der indictment or misdemeco,or information
for a crime:
(A) involving:
(i) any of the following
described in Chapter 43 of the Texas Penal Code: ,.l,
(aa) prostitution;
offenses as
(bb) promotion of prostitution;
prostitution;
(cc) aggravated
promotion of
(dd) compelling prostitution;
(ee) obscenity;
(fi) sale, distribution, or display of
harmful material to minor;
(gg) ~exual performante by a child;
:,7 ]~ '~ ~ -
(hh) possession of child pornography; .
' (ii) any of the following offenses ....: as...
described'in Chapter 21'of the Texas Penal Code,' , , .:.;~:m~.:. ....,~,...~
:"'" '" (bb) ·indecent exposure; .-' .... '~',?f (~.,
..'-: .... t r. - '''(CC) indecency ~ith a,'child~.,
(iii) engaging in organized cr{mi~'al
as described:in Chapter 71 of the Texas Penal Code; -ed~' "]
(iv) sexual assault or aggravated sexual
assault as described'in Chapter 22 of the Texas Penal Code; :,~
(v) incest, solicitation of a &~d, or
harboring a runaway child as described in Chapter 25 of the
Texas Penal Code;.
(vi) kidnapping or aggravated kidnapping as
described in Chapter 20 of the Texas Penal Code;
(vii) robbery or aggravated robbery as
described in Chapter 29 of the Texas Penal Code;
12
(viii) bribery or retaliation as described in
Chapter 36 of the Texas Penal Code;
(ix) a violation of the Texas Controlled
Substances Act or Dangerous Drugs Act punishable as a felony,
Class A misdemeanor, or Class B misdemeanor; or
(x) criminal attempt, conspiracy, or
solicitation to commit any of the foregoing offenses;
(B) for which:
(i) less than two years have elapsed since
the date of conviction or the date of release from confinement
imposed for the conviction, whichever is the later date, if the
conviction is of a misdemeanor offense;
(ii) less than five years have elapsed since
the date of conviction or the date of release from confinement
for the conviction, whichever is the later date, if the
conviction is of a felony offense; or
(iii) less than five years have elapsed since
the date of. the last conviction or the date of.release .from
confinement .for '~th'e last conviction, whichever .is ~the lateri-
date, if "the convictions are of two"or~'~more ~misdemeanor. : ..
offenses' or combination of misdemeanor offenses' occurring . ~
within any 24-month period. · ~; ~,.- ~,,
(b) The fact that. a conviction is being appealed shall
'have no effect on the disqualification of the' applicant or
applicant's spouse. , .....
(c) An apPlicant who has been convicted ~-o[qwhose spouse .~
has been convicted of an offense listed in Subsection
for which., the requi.red time period has elapsed since the date
of conviction:~or the date.of release from'confinement imposed
for the conviction, may qualify for a ~Se~u~llY oriented
business license only if the chief of police determines' that-
the applicant or'appliCant's spouse is preSent~y¥[it.'to, operate ......
a sexually oriented business. In determining present~ fitness."
under this section, the chief of police shall consider the
following factors concerning the applicant or applicant's
spouse, whichever had the criminal conviction:
(1) the extent and nature of his past criminal
activity; "
(2) his age at the time of the commission of the
13
crime;
(3) the amount of time t'hat has elapsed since his
last criminal activity;
(4) his conduct and work activity prior .... to and
following the criminal activity;
(5) evidence of his rehabilitation or rehabilitative'
effort while incarcerated or following release; and
(6) other evidence of his present fitness, including
letters of recommendation from prosecution, law enforcement,
and correctional officers who prosecuted, arrested, or had
custodial responsibility for him; the sheriff and chief of
police in the community where he resides; and any other persons
in contact with him.
(d) .It is the responsibility of the applicant,, to the
extent possible, to secure and provide to the chief, of police
the evidence required to determine present fitness Under
Subsection (c) of this section.
(e) The ~ce se, ~f granted, shall state on ~ts
name of the person or ,persons, to whom it is grante4,
expiration 'date, and the address of the .seXuall~o~ient~d
business. The license shall .be posted in a conspicuous place
at or near the entrance to the sexually oriented'.b~si~es~
that it may be easily read at any time.
SEC. 4 lA-6. FEES .... ,>,~ ....
(a) ., ',.The annual: fee for a sexually oriented~business ~
license is $500. ' . - ~:~j~v,~.::
(b) ~f an applicant is required by' this Cod~'~¥.-to~'~also.,.
obtain a d'ahce hall license or public house of:.amusement..
license for the business at a single location, p~yment.~..~f."'thei_'.
fee for the sexually oriented business licens~
applicant from payment of the fees for the dance.'.ha'i~o'£
house of amusement licenses.
SEC. 41A-7. INSPECTION.
(a) An applicant or licensee shall permit representatives
of the poli~e department, health depar~meht,-fire department,
housing and neighborhood services department, and building
inspection division to inspect the premises of a sexually
14
oriented business for the purpose of insuring Compliance
~he l~w, at any time it is ~ccupied or open for business.
with
(b) A person who operates a sexually oriented business or
his agent or employee commits an offense if he ,refuses to
permit a lawful inspection of the premises by a representative
of the police department at any time it is occupied or open for,-'
business.
SEC. 41A-8. EXPIRATION OF LICENSE.
(a) Each. license shall expire one year from the date of
issuance and may be renewed only by making application as
provided in Section 41A-4. Application for renewal should be
made at least 30 days before the expiration date, and when made
less than 30 days before the expiration date, the expiration of
the license will not be affected.
(b) When the chief of police denies renewal'of,a license,
the applicant shall not be issued a license 'for one year from ".
the date of denial. If, subsequent to denial, the chief of
police finds that the basis for denial of the 'rer~wal license
has been corrected or abated, the applicant may~'be'~granted~a ,~,
license if at least 90 days have elapsed'since the' date denial~..i
became'final.
The ~chief of police shall suspend~.a license~ f~f.~ a~e£iod
not to exceed 30 days if he*determines that'~a'~icensee or-an,~-~
employee of a licensee has: ,.'.
· (1) violated or is not in compliance:~with~ Section
41A-7, 41A-l~, 41A-13, 41A-15, 41A-16, 41A-l?, ~4~A-18:;~
or 41A-20 of this chapter;
(2) engaged in excessive use of ,alcOholic beverages
while on the sexually oriented business premises~ '- '- .......
(3) 'refused to allow an inspection of'"the sexually .....
oriented business premises as authorized by this chapter;
(4) knowingly permitted gambling by any person on the
sexually oriented business premises;
(5). demonstrated inability to operate or manage a
sexually oriented business in a peaceful and law-abiding manner
thus necessitating action by law enforcement officers.
15
SEC. 4lA-10.
REVOCATION.
(a) The chief of police shall revoke a license if a cause
of suspension in Section 41A-9 occurs and the license has been
suspended within the preceding 12 months. :. .~
(b) The chief of police shall revoke a license if'~ he
determines that:
(1) a licensee gave false or misleading information
in the material submitted to the chief of police during the
application process;
(;)
possession,
premises;
a licensee or an employee has knowingly allowed
use, or sale of controlled substances on the
(3) a licensee or an employee has knowingly allowed
prostitution on the premises;
.. (4) a licensee or an employee knowingly 'operated .the.
sexually oriented business during a period-of time when. the
licensee's license was suspended; ..... ,.. ~, '' . ~..,
(5) a licensee has been convicted of an offense
listed in Section 41A-5(a)(10)(A) for which the time period
required in Section 41A-5(a)(10)(B) has not elapsedlC:~ .~...-;,~ ,.-.."
'~ .... (6).:. on: two- .or. more -:occasions .wi;~htn~{a = *~,t~,~onth,
period; a person or persons committed an'offense {.occurring in .:
or on the licensed premises of a crime ~li'sted.~)in-
41A-5(a)(10)(A), for which a conviction has been'obtained, and'
the person' or',persons:?were,-.employees of the./sexffa~ly~'Oriented
business at the time the o~enses'were committed; ai:'. .~. ;.~
~ ! -~-~ -. , ;~ , ,[ , ..- -.
~7)' .a licensee or an employee has knowingly allowed
any act of sexual intercourse, sodomy, oral .:copulation,
masturbation, or sexual contact to occur in ori:on,~./the licensed
premises. The term 'sexual contact" shall have the same
meaning as it is defined in Section 21.01, Texas Penal Code; or
(8) a 1-icensee is delinquent in payment to the city
for hotel occupancy taxes, ad valorem taxes, or sales taxes
related to the sexually oriented business.
(c) The. fact that a conviction is bein9 appealed shall
have no effect on the revocation of the license.
16
(d) .Subsection ~o)(7) does not apply to aK_it motels as a
ground for revoking the ligense.
(e) When the chief of Police revokes a license, the
revocation shall continue for one year and the licensee shall
not be issued a sexually oriented business license for one year
from the date revocation became effective. If,i'. subsequent to
revocation, the chief of police finds that the cbasis for the
revocation has been corrected or abated, the applicant may be
granted a license if at least 90 days have elapsed since the
date the revocation became effective. If the license was
revoked under Subsection (b)(5), an applicant may not be
granted another license until the appropriate number of years
required under Section 41A-5(a)(10)(B) has elapsed since the
termination of any sentence, parole, or probation.
SECTION 4lA-11. APPEAL.
If the chief of police denies the issuance of a license, or
suspends or revokes a license, he shall send to the applicant,
or licensee, by certified mail, return receipt requested,
written notice of his action and the ri,ght to an appeal. The
aggrieved party may appeal the decision of the chief of police
to a permit, and license appeal board in. accordance~ with sect~0n
2-96 of this code. The filing of an appeal' Stays' the acti6n'
the chief of police in Suspending or revoking ~a:'li'cense
the permit and license appeal .board makes a final de.c, ision.
within a 10 day period the chief of police ~susP~'nds~;
or denies ~ssuance of a dance hall licens~'::or
amusement lzcenSe for the same '~location i'n~0l~d:*in~g*/~Chi~f
chief may consolxdate the requests for appeals
into one appeal. .-.~.'~;,-:~.> .,.
SEC. 41A-12. TRANSFER OF LICENSE.
A licensee shall not transfer his license to' another']'
shall a licensee operate a sexually oriented busf2esS under the
authority of a license at any place other than'~. the address
designated in the a~plicat~on. '
SEC. 41A-13. LOCATION OF SEXUALLY ORIENTED BUSINESSES.
(a) A person commits an offense if he operates or causes
to be operated a sexually oriented business within 1,000 feet
of:
17
school;
(1) a church;
(2) a public
861913
or private elementary or secondary
(3) a boundary of a residential district as 'defined
by the Dallas Development Code; ~ ~ ~
(4) a public park adjacent to a residential district
as defined by the Dallas Development Code; or
use.
(5)
the property line of a lot devoted to residential
(b) A person commits an offense if he causes or permits
the operation, establishment, substantial enlargement, or
transfer of ownership or control of a sexually oriented
business within 1,000 feet of another sexually oriented
business.
(c) A person commits an. offense if he causes or permits
the operation, establishment, or maintenanc~ of more than one
sexually 6riented business, in the same building, .structure,
portion thereof, or.the increase of floor area-of any!sexually::'
oriented business in any bu.ilding, structure:~, or,'~:portion
thereof containing 'another. sexually oriented business.,
" .'Z" '"~ t .. ',: :;%
(d) For the .purPoses o~ .Subsection (a), measuremen~:~shall~s'%~
be made in .a ,,s.traight line,..,.without, regard
~-,structures or objects,; from , t~{e nearest,
or structure used as a part of the premises where'..a,-se~ual.ly
oriented business, is conducted,, to the nearest
the premises of a church or public or private elementary.~or
secondary school, or to the nearest boundary of an affected
public park, residential district, or residential lot.
(e) For. purposes of Subsection (b) of this section, the
distance between any two sexually oriented businesses~shall be
measured in a straight line, without regard
structures or objects, from the closest exterior
structure in which each business is located.
(f) Any sexually oriented business lawfully operating on
June 18, 1986, that is in violation of Subsections (a), (b), or
(c) of this section shall be deemed a nonconforming use. The
nonconforming use will be permitted to continue for a period
not to exceed three years, unless sooner .terminated for any
reason or v6-1untarily discontinued for a period of 30 days or
more. Such nonconforming uses shall not be increased,
enlarged, extended or altered except that the use may be
18
changed to a conform,ng use. If two or more s~xually oriented
businesses~ are within 1,000 feet of one another and otherwise
~n a permissible location, the sexually oriented business which
was first established and continhally operating at a particular
location is the conforming use and the later-established
business(es) is nonconforming.
(g) A sexually oriented business lawfully operating as a
conforming use is not rendered a nonconforming:'use by ~.~he
location, subsequent to the grant or renewal of'the'sexually
oriented business license, of a church, public or private
elementary or secondary school, public park, residential
district, or 'residential lot within 1000 feet of the sexually
oriented business. This provison applies only to the renewal
of a valid license, and does not apply when an application for
a license is submitted after a license has expired or has been
revoked.
SEC. 41A-14. EXEMPTION FROM LOCATION RESTRICTIONS.
(a) If the chief of police denies the issuance of a
license to an applicant because the location of the sexually
oriented business establishment is in 'violation of- Section '
41A-13 of this chapter, then the applicant may, not lager 'th~n
l0 cal'endar days after receiving notize of' the'-:den~al, >fi~le,;t~,:~ ''~
with the city secretary a written request for ~n eXempt{on
the locational restrictions of Section 41A-13.
(b) If the written request is filed "~{~t~ the
secretary within the 10-day l'imit, a'permit~'~'hd;-~:~s· af~:il
board, selected in accordance with Section 2-95 of 'this code,
shall consider the request. The city' secretar~ ~hall set': a
date for the hearin~ within 60 days from the date".-the written
request is received. : ..... ~'' ~'~
(c) .A hearing .by the board may proceed'if at least two of
the board members are present. The board ..aha'Il' hear' and~
consider evidence offered by any interested person. The formal
rules of evidence do not apply. .'{ . .~-.
(d) The permit and license appeal board may, in its
discretion, grant an exemption from the locational restrictions
of Section 41A-13'if it makes the following findings:
(1) That the location of the proposed sexually
oriented business will not have a detrimental effect on nearby
properties O'r be contrary to the public safety.or welfare;
(2) That the granting of the exemption will not
19
violate the spirit ann intent of this chapter of the city code;
(3) That the location of the proposed sexually
oriented business will not downgrade the property values or
,quality of life in the adjacent areas or encourage the
development of urban blight;
(4) That the location of an additional ~sexually
oriented business in the area will not be contrary ,to any
program of neighborhood conservation nor will it interfere with
any efforts of urban renewal or restoration; and
(5) .That all other
chapter will be observed.
applicable provisions of this
(e) The board shall grant or deny the exemption by a
majority vote. Failure to reach a majority vote shall result in
denial of the exemption. Disputes of fact shall be decided on
the basis of a preponderance of the evidence. The decision of
the permit and license appeal board is final.
(f) If the board grants the exemption, the exemption is
valid for one year from the date of the board's action. Upon
the expiration of an exemption, the sexua!ly:.oriented ~business
is in violation of the locational restrictions, of~..Section. S41A-13-
until t'he applicant applies for and receives another exemption.
(g) If the board denies the exemption, the applicant may
not re-apply for, an exemption 'until
~.lapsed since the:date of the board's
(h) The grant of an exemption does not exempt-the,¢applicant.,
~rom any other p~ovisions of this chapter.
locational restrictions of Section 41A-15.
SEC. 41A-15. ADDITIONAL REGULATIONS FOR ESCORT AGENCIES. :.:~
(a) An escort agency shall not employ any person under the
age of 18 years. ,
(b) A person commits an offense if he acts as an escort or
agrees to act as an escort for any person under the age of 18
years.
SEC. 41A-16. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS.
(a) A nude model studio shall not employ any person under
the age of 18 years.
20
(,b) A person under the age of 18 years commits an offense
'if he appears in a state 6f nudity in or on the premises of a
nude model, studio. It is a defense to prosecution under this
subsection if the person under 18 years was in a restroom not
open to public view or persons of the opposite sex.
(c) A person commits an offense if he appears'in a'state of
nudity or knowingly allows another to appear in ,a ,state
nudity in an area of a nude model studio premises~which can'be
viewed from the public right of way.
(d) A nude model studio shall not place or permit a bed,
sofa, or mattress in any room on the premises, except that a
sofa may be placed in a reception room open to the public.
SEC. 41A-l?. ADDITIONAL REGULATIONS FOR ADULT THEATERS AND
ADULT MOTION PICTURE THEATERS.
(a) The requirements and provisions of Chapter 46 of this'
code remain applicable to adult theaters and adult motion
picture theaters. , ~
(b) A ·person commits an offense if he' knowingly allows'.a
person'under the age of 18 years to appear in a'state of nudity
in or on the premises of an adult theater
picture theater.
(c) A person under the age of 18 years., commfts::ani~f~ens~'
ii he knowingly ~appears ,in a state
premises.of an,adult, theater or, adult'
(d) It is a defense to prosecution under Subsections (b)
and (c) of this section if,the person under~ 18 iyears-~as ff. a
restroom not open to public view or persons of the~op~osite"Se~.
SEC. 41A-18. ADDITIONAL REGULATIONS FOR ADULT MOTELS. ~,~ "~.
(a) Evidence that a sleeping room in a ,hotel, motel, or
similar commercial establishment has been rented and~vacated two
or more times in a period of time that is less than 10 hours
creates a rebuttable presumption that the establishment is an
adult motel as that term is defined in this chapter.
(b) A person commits an offense if, as the person in
control of'. a sleeping room in a hotel,' motel, or similar
commercial establishment that does not have a sexually oriented
business license, he rents or subrents a sleeping room to a
person and, within 10 hours from the time the room is rented, he
rents or subrents the same sleeping room again.
(c) For purposes of subsection (b) of this section, the
terms 'rent' or #subrent' mean the act of permitting a room to
be occupied for any form of consideration.
21
SEC. 41A-19.
REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY
EXPLICIT FILMS OR VIDEOS.
(a) A person who operates or causes to be operated a
sexually oriented business, other than an adult motel, which
exhibits on the premises in a viewing room of less,'than 150
square feet of floor space, a film, video cassette, or other
video reproduction which depicts specified sexual activities or
specified anatomical areas, shall comply with the following
requirements:
(1) Upon application for a sexually oriented business
license, the application shall be accompanied by a diagram of
the premises showing a plan thereof specifying the location of
one or more manager's stations and the location of all overhead
lighting fixtures and designating any portion of the premises in
which patrons will not be permitted. A manager's station may
not exceed thirty-two (32) square feet of floor 'area. The
diagram shall also designate the place at which the permit will
be conspicuously posted, if .granted. A profeSsionally-p~epared ....
diagram in the nature of an engineer's or a}chitect's blueprint
shall not be required; however each diagram should be~ oriented'~
to the. north or to some designated .street or ob~ect~.and~shOnld
be drawn to a designated scale o~ with marked'.~"dimen~ions
sufficient to show the various internal dimensions of all ,areas"'::.'
of the interior of the premises, to an accuracy of'plus or minus
six inches, The,chief of police may waive the fo~egoing~d~ag~am<~
for renewal~applications if the applicant
was previously submitted and.certifies"that
the premises has not been*altered since it was prepared.
(2) The application shall be sworn t° be~ true
correct by the applicant. ~ ~,..~.~ ~.: ~,.'~.~ ~,,~
..(3) No alteration in the configuration .or .location 'of
a manager's 'station may be made without the prior
the chief of police or his designee.
(4) It is the duty of the owners and op'erator
premises to ensure that at least one employee is on duty and
situated in each manager's station at all times that any patron
'is present inside' the premises.
(5) The interior of the premises shall be configured
i~ such a manner that there is an unobstructed view from a
man~ge~'s station of every area of the premises to which any
patron is permitted access for any purpose excluding restrooms.
Restrooms may not contain video reproduction equipment. If the
22
premises has two or ~. .e manager's stations des .~ated, then the
interior of the premises shall be configured in such a manner
that there is an unobstructed view of each area of the premises
to which any patron is permitted access for any purpose 'from at
least one of the manager's stations. The view required in this
subsection must be by direct line of sight from the manager's
station. ~
(6) It shall be the duty of the ownets..and operator,
and it shall also be the duty of any agents' 9~d employees
present in the premises to ensure that the' view area specified
in Subsection (5) remains unobstructed by any doors, walls,
merchandise, display racks or other materials at all times that
any patron is present in the premises and to ensure that no
patron is permitted access to any area of the premises which has
been designated as an area in which patrons will not be
permitted in the application filed pursuant to Subsection (1) of
this section~
(7) The premises shall be equipped with overhead
lighting fixtures of sufficient intensity to illuminate every
place to which patrons are permitted access at an illumination
of not less than one (1.0) footcandle as measured at the floor
level.
(8)., It-shall be the 'duty of the owners,and operator
and it shall also be the duty of any agents,.' and employee~
present in the premises to ensure that the"'illuminati6~
described above, :is maintained at all times that any patron.is
present in the premises.
(b) A" persoh having a duty under
(8) of SubSection '(a) above Commits an offense
fails to fulfill ~hat duty,
SEC. 41A-20. DISPLAY OF SEXUALLY EXPLICIT MATERIAL~,TO,.
(a) a Person commits an offense if,
establishment open ~o persons under the age'~.
displays a book, pamphlet, newspaper, magazine, '.film,
cassette, the cover of which depicts, in a man, er calcUlated'to'
arouse sexual lust or passion for commercial gain or to exploit
sexual lust or -perversion for commercial gain, any of the
following:
(1) human sexual intercourse, masturbation, or sodomy;
(2)" fondling or other erotic 'touching
genitals, pubic region, buttocks, or female breasts;
of human
23
(3) less than comple, tely and opaquely covered human .. .
genitals, buttocks, or that portion of the female breast below
the top of the areola; or
(4) human male genitals in a discernibly turgid state,
whether covered or uncovered.
(b) In this section 'display" means to locate an item...~in ~
such a manner that, Without obtaining assistance from an
employee of the business establishment:
(1) it is available to the general public for handling
and inspection; or
(2) the cover or outside packaging on the item is
visible to members of the general public.
SEC. 41A-21. ENFORCEMENT.
(a) Except as provided by Subsection (b)] any .person
violating Section 41A-13 of .this chapter, upon conviction, is
punishable by a fine not to exceed $1,000.
(b) If.' the se.xually' oriented business ~n
model 'studio ~or s, exual encounter Center, then~',~vio~s"tio~,;[i.6f ~... ,
Section 41A-4(a) or 41A-13 of this chapter is punishable, as ,a. ~--
Class B misdemeanor.
· (c) ,Except as, provided ~by .Subsection.
--violating g provig~gn'of ,this chapter.'oLher
upon conviction, ~s punishable by a fxne not to exceed,.$Z00~.:.,.
(d) It is a defense to prosecution under Section 41A~4(a),'
41A-~3, or 41A-16(d) ,thgt a .person appearing
nudity did so in'a' modeiifigclaSS operated: :~' '""~'"~ .........
(1) 'by a proprietary school licensed.-'b the,~.,s2ate of. ~ : ,,
Texas; a college, junior college, or university,. ~upported~,...~....
entirely or partly by taxation; , .~.....,: ~.. .:, ,. -~..
(2) .by a private college or university which maintains
and operates educational programs in which credits are
transferrable to' a college, junior college, or university
supported ~ntirely or partly by taxation; or
(3) in a structure:
(A) which has no sign visible from the exterior
of the structure and no other advertising that indicates a nude
24
person is available .~r viewing; and
(B) where in order to participate in a class a
student must enroll at least three days in advance of the class;
and
{C) where no more than one nude' ~°del is on the ~"
premises at any one time, '.:;.~, ,~!'.:~i: '~i' '..:/~ .... '~.
(e) It is a defense to prosecution under Section 41A24(a)
or Section 41A-l~ that each item of descriptive, printed, film,
or video material offered for sale or rental, taken as a whole,
contains serious literary, artistic, political, or scientific
value.
SEC. 41A-22. INJUNCTION.
A person who operates or causes to be operated a sexually
oriented business without a valid license or in violation of
Section 41A-13 of this chapter is subject to'~ a suit for
injunction as well as prosecution for criminal violations.
SEC. 41A-23. A~ENDMENT OF THIS CHAPTER. . ~ ],i~ >~,~ ': :: , ~
Sections 4lA-X3 and 41A-14 of 'this ~hapter may'be a~ended
only after compliance with the procedure required ~o~,amend
zoning ordinance. Other sections o~.this chapter maC"be *me~ded'~
by vote o~ the city council.' ..... r.~ ::~.~ . ~ . ~...
SECTION 2. That Section 31-24, 'Prohib~ting'.:.Oisplay;;
Operation of
CHAPTER 31,
Sexually Explicit Material to
'OFFENSES-MISCELLANEOUS,' of the
is repealed.
SECTION 3. That Section 31-26, 'Prohibi(k~
Certain Enterprises in Specified Areas,' of
"OFFENSES-MISCELLANEOUS,' of the Dallas City Code, as amended,
is repealed.
SECTION 4. That Resolution Number 86-1010, adopted by the
City Council. March 26, 1986, imposing a mokatorium on building
25
permits and certific.~.es of occupancy, is repea.
SECTION 5. That the terms and provisions of this ordinance
,re severable and are governed by Section 1-4 of CHAPTER 1 of
the Dallas City Code, as amended. ' "'~
SECTION '.6' That all perS6ns required b~
obtain a sexually oriented business license are hereby granted a
grace period,, beginning June 18, 1986, and ending July 18, 1986,
in which to make application for the license.
SECTION 7. That this ordinance shall take effect
immediately from and after its passage and publication. in
accordance with the provisions of the Charter of the City Of
Dallas, and it is accordingly.so ordained. ,
APPROVED AS .TO FORM:.
ANALESLIE MUNCY, City Attorney
Assistant ,City Attorney, ...
Passed and correctly enrolled
6172H
JUN 1 8 1986
26
2-19-86 DRAFT
ORDINANCE NO~ 86-
AN ORDINANCE CREATING THE ADULT ENTER-
TAINMENT CODE WITHIN~CHA~TE~_I4,~.ART1CLE
FORTH THE AUTHORITY, SCOPE AND PURPOSE OF
THE ADULT ENTERTAIN~4E~T CODE! 8RTTIN~ FORTH
THE TITL~I PROVIDING TIIAT OSSCENITY lO ~T
PERMI~D~ S~XNG FORTH THE COHS~U~IONI
SETTING FORTH THE SEVERABI~ITY~ DEFININ~ TH~
TERMS OF SAID USE~ ESTABblSHING ARTICLE
VIII(H) LICENSING PROVISIONS OF THE ADULT
ENTERTAINMENT CODB~ SETTING.FORTH THE
RESPONSIBZLZT~ AND THE POWER~ OF ADMZNI-
TRATIVE AGENCIES~ REOU~RING LICENSES FOR
ADULT ENTERTAINMENT ESTABLISHHENTS~ PRO-
lOlNG FOR THE DI$QUALIFICATION PROM
LICENSINGJ PROVIDING FOR LICENSE APPLI-
CATION AND FEES~ PROVIDING FOR INVESTI-
GATION OF AN ADULT ENTERTA~N~NT ESTAB-
LISHMENT APPLICATION~ PROVIDING TH~
PROCEDURES FOR THE ~SSUANCE, DENIAL AND
REV~ATXON OF LZCENSE~ PROVIDING A
ATION ON LICENSES A~ LICENSE
P~OVIDING FOR THE DISP~Y OF
SETTING FORTH THE TERM OF LICENSES A~
RE~S~ PROVIDING FOR THE PR~EOURE FOR
TRANSFER OF LICENSE~I PROVIDING PR~BDURE
FOR THE HO~MENT OF A LICENSE BUSINESS
CHANGE OF A BUSINESS N~ SETTING FORTH THE
PR~ED~ FOR THE SUSPENSION OF LICENSE~
PROVIDING FOR APPE~S] ESTABLISHING
FEES~ REQUIRING THE ~I~AINING OF R~ORDS~
ESTABLISHING ~TICL~ VIII(C) SE~ING FORTH
THE R~QUIRB~NTB FO~ ~h ~ULT
ESTABLZSH~NTS~ ESTABLISHING GENE~
~NTSJ ESTABLISHING REQUIREMENTS OF AD~R-
TISINGJ RKOUIRING NOTICE ON KN~NCES
~ULT EHTERTAINHE~ ESTABLISHHENTSJ
PROVIDI~ FOR L~ATION~ RBOUI~S OF
ADULT E~TAI~E~
DEC~ZNG ~ OPE~TZON OF
PREMISES U~UL~ RE~XRXNG A LICENSE OF
CO~RCI~ ESTABLISH~8 ~RTI8I~ ~T
E~ERTAI~NT~ PROVIDING FOR RES~ICTIONS'
OR PBRHI~ED~ PROHIBITING ADHISSION OF
MINORS1 PROHIBITING OF S~E ~ MX~RS~
PROHXBXTXHG ~ P~X~XNG OF VIOLATIONS OF
TH/~ CODB~ REQUIRING P~RMITS FOR
IN LICEHS~ PREMZSE~ ESTABLISHING ARTICLE
VIII(D} SE~ING FORTH THE SPECIAL REQUIRE-
MENTS FOR ~SSAGE ESTABLZSNMENTS~ PROVZDZ~
FOR RES~XCTXONS ON THE ~HXNX~TER/NG OF THE
~SSAGEI ~EOUXRXNG A LICENSE FOR THE
PROVIDING OF A ~SSAGEI PROVIDING FOR HOME
~SSAGE ~AT~NT~ ESTABLISHING ~ES~ZCTXO~9
ON HINORS AT ~SS~GE
NSTABLISHHENTS~ PROVIDING FOR
PROHIBITING SPECIFIED SEXUAL ACTIVITIES
~SSAGE ESTABLISH-MENTS~ ESTABLISHING
ARTICLB VIII(E) SETTIHG FORTH THB RE~UIRB-
NENTS FOR ADULT NOTION PICTURE THEATERS!
PROHIBITING MINORS IN ADULT HOTIOH PICTURH
THEATERS! PROVIDING FOR INSPECTIONS!
PROHIBITING THE DISPLAY OR EXHIBITION OF
EPECIFIED ANATOMICAL AREAS AT ADULT MOTION
PICTURE THEATERE! PROHIBITING HPECXFXED
EHXUAL ACTXVXTXEH AT ADULT MOTION PXCTUlt~
THEATRES! EETAHLXSHIBa ARTICLH VIII{F) ,
EETTXH~ FORTH THH RBOHXRBNBNT8 FOR ADUL~ '
BOOEBTORB8~ PROHIBITING MINORS AT ADULT
BOOESTORESI PROVIDING FOR INSPECTIONS!
PROIIIBXTXHG THE DISPLAY OR EXHIBITION OF
SPECIFIED ANATOMICAL AREAS AT ADULT
BOOKSTORES! PROHIBITING SPECIFIED SEXUAL
ACTIVITIES AT ADULT BOOKSTORKS~ PROVIDING
FOR THE SALE OF NON-ADULT HATERIAL IN ADULT
BOOKSTORESI REQUIRING THE PROVIDINa OF
ADDITIONAL INFORHATIOH! ESTABLISHING ARTICLB
VIII{G) SETTING FORTH THE REOUIREMENTS FOR
ADULT DANCING ESTABLISHMENTS! PROVIDING FOR
CERTAIN ACTS BEING PROHISITED WHERE
ALCOHOLIC BEVERAGES A]~ PRESENT! ESTAB-
LISHING ARTICLE VIII{H) SHTTING FORTH THE
PRESUMPTIOHS TO BE UTILIZED UNDER THE
ENFORCHHENT OF THIS ORDXNANCEI ESTABLISHING
PROOF! SETTING FORTH THE PENALTIES! AND
PROVIDXN~ FOR THE EFFECTIVE DATE.
4DU~? BNT{RTA~NME#T CODE
ARTICLE VIII
Section l__t. Sectiona 14-128 throu{h Section 14-1316 Code of
Brevnrd County nra hereby repenledo
~ectioq ~, A ney SectLon 14-12B ia adopted 'to read, da
follovn~ .,
ARTICLE VIII(A) - General Provtalonn
Section 14-128, Authority,
Thin ordinance is enacted under the~ower and authority
of Breverd County, Florida, ia the iatereat of the public health,
peace, safety, end Beneral welfare of the citizens and
inhabitants of Steward County, Florida, end under the authority
of the Twenty-First Amendment to th* United States Conntitutioe
to reRulnte the sale and connumption of alcoholic beverasea.
Section 3, A ney Section 1&-129 il adopted to reed an
folloual ..
Section 14-129. Scope.
Thio ordinance shall be effective thronshout the
unincorpornt~ ,rea~of Br*v, rd County. Florida.
Section d. A new Section 1~-130 in adopted to read an
follower
Tho intent of the Board in ndoptin! thio
establish reasonable end uniforB tabulations that viii reduce the
adverse effects adult eatertainuent businesses have upon Bre~ard
County, Florida, end to protect the health, safety0 morals end
welfare o! the citizens nad inhabitants of Steward County.
Section 5. A ney Section 14-131 in adopted to reed ne
relieves :
Section 14-131. Title.
Thio Chapter may be known and cited es the "Adult
Entertsin~ent Code".
Section 6. A new Section 14-132 is adopted to reed Be
Section l&-13~. Obscenity ~ot. Permitted..
~othinB in thin Coda shal! be construed to allow or
permit the possession, distribution and transportation of obscene
muteriele or to authorize the exposinB of persons under seventeen
yours of abe to ~otiun pictures, exhibitionS,
representations end presentations of specified
or persona displnyin! or exhibitinB specified nnatouicel erase,
These matters are preempted to the State and ere subject to State
tabulation, sad lc is not the intent of the Board to leslnlste
vith respect to preeupted usurers.
Section 7. A new Section
Section 1~-133. Construction.
Thio Code shell be liberally construed to accomplish itu
of liceneinB, reBulntinB and disparateB adult
purpose
entertainment end related activities. Unless otherwise
indicated, ell provisions,of thio Code shell uppl~ equally to
persons relsrdlees of sex. The words nhen, #his~, and ~htme ss
employed in thio Code shell be construed to apply to females us
vel2 us to, melee, ~' .;
Section 8, 'A new Section 14=13~ is adopted to read
follower ~:~.
If any pert, section, Subsection or oth6r per.t/sa
thin Code or uny application thereof to any person or
circumstances is such pertj section, subsection or other portio#,~
or the proscribed eppltcutlou thereof, shall be sevorehl~ end the ' '.'~:
remain/n! provisions of this Code nnd all' applications theroofJ
not huvinS been declared void, u~constitutional or invalid shall
re~ein in full force end effect, The Board declares that no
invalid or proscribed provision or application vas an LnduQement
to the enactment of this Code and that it would have enacted thio
Code reBnrdlens of the invalid oF proscribed provision or
application.
Section 9. ~ ne~ Section l&-i~5 is adopted to rend as
follo~s~
Section l&-13~. Oefinitiona.
For th. purpose of this Chapter, tho followin~ words sod/.
phrases shall have the me.nAn8 herein set forth, unless from the~
context that a different meaninB ts intended, ,
1, 'Adul~ Arcade" means an establishment vhere~fer any
form of consideration, one OF more Ration picture
slide projectors, videotape or playback sod vievifl8 devices, or
similar machines, for vinyls8 by five or fever persons each, ore
used to show illus, motion pictures, video cassettes, slides or
other photoarephtc reproductions which are characterized by
emphasis upon the depiction or description of specified sexual
activities or specified anatomical areas. FaF the purposes of
this Cede, adult nrcede is included within the definition of
adult motion picture theater.
2. **Adult Bookstore** means a place that sells or offers ..L~
for sale or rents for any form of consideration, adult
more than twenty-five percent (25X) of the individual items it
displays on the premises es its stock in trade in any;one
ef the followin! cateaortea: .(a) New Publications, (h) Used
. Publicatiooa, (c), ~ev.aerchsndise,, (d) Used Nerchandimee (e).
Pho'tosraphs, Films, Hotion Pictures, Video Cassettes or
· . nidult ~sterisls# means soy one or more of the follOvinat
(e) Books, meBszines, periodicals, or other
pristed matter, or photoRrapha, films, motion pictures, video
cessa~tes, slide or other visual representations or record~Bs,
no~slties sad devices,, which hove os their p~imsry er dominant
theme uniter deptctinS, illustrattnS, deecribint or
specified sexual activities or specified anatomical sreasZ .~r
(b) Instrument., devices, or paraphernalia which
ere deaisned for uae in connection with' specified
activities.
An Adult Bookstore includes a place with only s
portion or section of its area set aside for the display or sale
to adults of materials listed in SuS~ecttons (a) and (b) above,
except that ~ny place, oth~vise included uithin this definition,
that can prove that it derives not more than twenty percent (20Z)
of its gross income from the eels of materials listed in
Subsections (a) end (b) above shall bl exempt from the provisions
of, this Code es leal al such material i/ kept out of the
customers end is accessed only by employees. ' '
3. "Adult gsncinA ~stsbl~shment" means s commercial
establishment that permits, suffers or allows dancers to display
or expose specified anatomical areas.
Any establishment 'on whose premises any employee
displays or exposes specified anatomical areas shall be deemed aa
Adult Dancing ~stablishment and shall be required to obtain a
license under this Code.
&. "Adult Entertainment Bstsblishment# means an adult
motion picture theater,~ · massage establishment, an adult
bookstore, or en adult dancing establishment,
$. "Adult Hotel" means any ~otel or ~motel, boarding
house, rooming house or other lodging which includes the word
"adult" in any 'nnme 'it uses) or othkrwisa advertieel the
presentation of'.tilm, 'video or any other visual materiel or
methods which has es its primary or dominant these smiters
mctivittel for obsmrvation by ~&trons khereof. For'the pmrpommm'i'~l.~.',,'.' ,.~."~: ~ .,'
picture theater. ,
. 6, "Adult Notion Picture Booth means an enclosed Ifil .;; . . ....
designed or used for the visvin! by om& or tvs persons O!
ptcturee~ films~ video caedettes~ slides or other phOtolrephic
reproductions which have ne their primary or dominant thalt -'~
matters depictlng~ illustrating or relating to specified maxell
activities or specified anatomical areas. For the pe~F~se of
this Code)as Adult Hotion Picture Booth is included within the
definition of an adult motion picture theater,
7. "Adult Hotion Picture Theater" means an enclosed
buildin~, or a portion or part of un enclosed bulldin8, or an
open-nit theater designed to permit vie.in8 by patrons seated in
sutonobtlel or other seating provisions, for any form Of
Consideration, film, video o.r any other visual materiel or
methods which has as its primary or dominant theme matter~
depicttnl, illuatratin8' or relStinB to specified sexual
activities for observation by patrons thereof~ e- - - -
st nub:. :~Im .,a~c~u~ For the purposes of this Code an Adult
Motion Picture Theater includes both an adult arcade, an adult
motel~ nad an adult motion picture booth.
8. "Alcoholic HeveraRe" means ell bevernaes containing
more than one percent (1~) of alcohol by weight, including beer
end wine.
9. "Board~ means the Board of County Commissioners of
Brevard County, Florida.
10. "Commercial" means operated for pecuniary Bain,
which shall be presumed for any establishment which hoe received
on occupational license. For purposes of thio Code, operation
for pecuniary 8aim shell not depend on actual profit or lose.
11, nCommercin~ Establish'meet" means any .business
location, place or business conductin8 Or ellowinB to be
conducted on its premises any commercial activity. ·
12. "employeen means · person who works or performs~in
a comn~rcie! eetabilahment, irrespective of whether aiid
ia paid a salary or vase by the owner or mansjer of the
13. aEatebllehmentn means · physical plant or location
o~ the commercial activities or operations betas conducted, or
barb toBmther, se the context of this Code uny requtt%.~
l&. "~nseector~ means sn~p~ee of theaDepsrtment of
Consumer' Health Services, thea Buildths
Department, the Steward County Sheriff's Oep~t, UhesP~snnin8
and Zoning ~epnrtment, or officers of the Emeraency' Services
Ja~p~R-~o~t who sheJ~ inspect premises ~censed under this ~ode
and to take or require the actions authorized by this Code
case of violations betn8 found on licensed premises, and also to
l~spect premises seeking to be licensed under this Code smd to
require corroctions of unsDtiefectory conditions found on said
premises.
15. "Licensed Premises" means not only rooms end areas
vhers adult materials regulated under this Cods~ or adult
activities regulated by this Cods, ere sold, offered, pressured
or stored or vhsrs any form of adult entertainment ie prsesnted~
but also nil other erase vithin $00 feet of the room or area
vhere adult materials or adult activities ore regulotsd and over
vhich tho licsnsee has some dominion and control and to vhich
customers or patrons may pass, and shell include all of the floor
or land areas embraced within the plan appearing on or attached
to tbs application for the license involved and designated ns
such on said plan.
16, 'N&seeRe o_~r NssssRe Service" means any method of
treating the external parts ~f the body, consisting of touching,
rubbing, stroking, kneading, tapping, or vibrstisg! such
treatments being performed by tho hand or vith any other body
pert, or by any mechanical or elsctricel instrument.
17. "Hsesose' Estsblishuent" neons n site or premises,
ur portion thereof, upon vhich any pers0~ perfOras any of the
treatments, techniques or method of treatment referred to in
subsection 16 hereof, ere administered, practiced, used, given or
~pplied but shell not Include the follovingf licensed heslth~?.
cars facilities! licensed physicians or nurses engaged in ths~£~
practice of their professional educational or professional
athletic facilities, if the message is s normal and usual
practica in ouch ~acili~iesl '~r establishments exempted undi'~'~ ,,
Chapter &80.O3&, Florida Statutes (1983)~
18, "Nessese Patron" means say person vho receives, or"
pays to rsceivo, s massage or message service from e message
technician for value& ;
19, 'HsseeAe Technician" means say person vho engsaes
in the business of performin8 massage or mass.se treatments,
tecbuiguss or me,hods of treatmen~ referred to in subsection 16
of t~is section.
20. "Person" means individuals, tires, associations,
Joint ventured, partnerships, estates, trusts, buetnena
syndicates, fiduciaries, corp~rsttons~ and ell other groups or
combinations.
21. "Personal AdvnrtisinR" means any communication on
the part of any employee .of an adult eKtertainBent establishment
that is destined to encoursee s prospective patron es enter said
establishment and is performed by repeatedly speaking in a raised
tone of voice, by BakinI pros*neat physical see*urea, such
waving or repeatedly pointing, or by. hold*ns signs OF other
written ate*agents. ?arsenal Advertising shall not include oral
or physical references to on adutt enter*dissent eotebliahBent by
patrons or spectators.
22. "Premises" Beane a physical plant or location,
which ia enclosed by vails or uny other enclosin8 structural
device, or which is covered by a StaBle roof or with n stable
shared entrance, if sot covered by n single ,roof, and shell
include any structure, structures or land, or contiluous
structures or land, within 500 feet of the physical plant or
location where such structures OF land and the physical plant or
location ute under common ownership, control or possession.
23. "Principal Stockholder" means any individual,
partnership or corporation that owns or controls, legally or
beneficially, ten perceut (10X) or more of ·
capital stock, end includes the officerS, directors end PtieeApel~.
Stockholders of a corporation that tn a Principal Stockholder
under this Code! provided, that if no stockholder o!
corporation owns or controled legally or beneficially, at
tan percent (lOX) of the capital stock, oil stockholders shell be
considered Principal Stockholders, end further provided, that If
a corporation la reIistered with the Securities and gxch~nIe
Commission or pursuant to Chapter 517, Florida Stain*pa (1981),
and its stock ts for sale to the general public, it shell not he
considered to have any principal stockholders.
26. "ReliRtous Institution" Beans a building which ts
used primarily for reliIious worship and related reliiious
activities.
2~. "Schooltt mea~a an institution o! learnin0 for
minors, vhathar public or private, vhich offers instruction ia
those courses of study required by Chapter 233, Florid·
(1981), or vhich i· maintained pursuant to standards set by the
school, kinderl·rt·n, elumont·ry Ichoolj Junior high
middle school, senior high school, or any epaci·l institution of
learnin8 under the Jurisdiction of the State Department of
Education, but it does not include a vocational or profeualon·l
institution or an institution of higher education, includinI u
community or Junior college, college or untveraity.
~*Specified Anatomical Areas~ means:
(a) less than completely and opaquely coveredl
(i) human genitals or pubic reason!
(it) the cleavage of the human buttockel
(iii) that portion of the human female breast
encompassed vithin an area felling belay the horizontal line one
would h·ve.~o dray to inter·act S point ismediately above thc top
~f'o-'~-'~-~-~reol~) (the colored ting. around the nipple), This
definition shall include the satire lover portion of the breast,~'' ''''' ' * ' "' ''' '
but shall not be interpreted to include any portion of the
cleev·s~ of the breast exhibited by a dress, blouse, .ehirti .;,? .,.
leotarl, b·thin8 Suit, or other ~earin8 apparel, provided the~.~? ,
(b) human male genitals in u discernibly turgid
state, even if completely sad opaquely covered. , L:,~.~ _
27. ~pecif~ed Criminal Act' ne·mi · violation of thin:;~/.
Coda; an offense under Chapter 800, Florida Statutes (1981}! eft
offense under Section 806.01, 806.10, 806.111 or 806.13(~)(C),-
Florida statuteu (1981)1 an offense under Chapter 796, Florida
Statutes (1981)1 an offense under Section 867.013 or 8&TLOli,
Florida Statuteu (1981); an offense under Section 893.13, Florida
Statutes (1981) or an offense under Section 819.09(2), 869.10 or
869.25(3), Florida Statutes (1981).
28. "5peci~ied Sexual Activities" means:
(a) human 8enituls In a state of sexual
ItllUlltion, lrOUlll or tumescence!
(b) acta of human analinRus, bestiality! buBlery,
cuflntlinlua~ coprophaay0 coprophilia0 foliation, flalelllt/oa,
Illochial, masturbation, necrophll/a~ pederasty, padoph/lie,
ladiam, nadOnalochilm, lapphinm, sexual intercourse, sodomy,
(c) fondlinl or othe~ erotic ~ouchin! o! human
8enitala, pubic relton, buttnck~ anua or re.ale breaatl
(d) excretory functiona aa part nE or In
connac~ion vith any of the activttiea net forth in (a) ~hroueh
(c) above.
29. '~raddle Dance" also knovn aa a 'lap dance", or
'fats dance" means ~he usa by an employee, vhekher clo~hed or
nec, of any part of bsa body to maasaBe, rub, n~roke, kneed,
caress or fondle the Ben,tel or pubic area of a patron, vhiln on
~ha premises, or ~ha plac/nB of the Benitsl or pubic area of nn
employes ~n conkac~ vl~h the face of a patron, vhila on the
premises.
30. ".V~olation =.~ ~h~a ~oda" means an act prohibited by'
any provilion o! thLn Code.'"' gach Violations accutrimI Ih~l',ba,.~ ....
cona~dernd a aeparn~ and d~atinck v~o~n~lon, from any othar
o¢currLnt on the name day or ~n the same entnblinhment or by, 'the
ARTICLE VIII S. LICENSING PROVISIONS
Section 10. A new Section 14-~36 is adopted to read as followst
Section 14-136. ~eeponaibillt~.
Ultimate responsibility for the administration of this Code
iS vested in the Board of County Comissionars, The Sheriff of
Brevard County is responsible.for verifying information oontained on
an p~-~o-~ The Building : - -- - -- Department is
responsible for the lns~,~ction of licensed premises and premisss
applying for a license in order to pass upon the construction and
physical configuration of the premises involved, The ~nergency
Services 0~at-~ne~4~is responsible for the inspeotion of lieenled
premises and preaises applying for a license to asoereain
with a~l fire p~even~lon codes, statutes st ordinances in effect
Brevard County, Florida. The~Cons~er Health Services Depar~n~
responsible, for the inspection of licensed premises and
applying ,ora lice~s~to__~~ianc, wi~h ,~at. of ,lorida
and Department
and Brevard County~ealth~. Tb~ Planning Zoning
i, respon,ib~, ,o~ a,certa~n~~~h all location,l
retirements o~ ~hie Code~ al~zoning regulation%,'., '..
- - _ . ' and shall be responsible for the issuance
SectiOn il. ~ new section 14-137 Is adopted to read &s foll~s~
Consult ~ealth~Se~vices Department, th~Bu~ld~nqv~_
Depar~ent,~.~_~the~Plann~ng and ~ntng Depar~nt or rhea
Serviceo ~t the authority or duty
~ ~ the authority Of~
duty vests ~n th~Sher~ff, the ~lrector o~ Cone~r Health ~lee~
Director of the Plan .nin~nd Zoning Depar~nt or in the Chief of the
.~ergen~y Services ~.~..L....,t or in any inspector or employs ~ho
g~ven the au2ho~[ty or duty to ac2 in accordance ~[th the
a~ini~trative procedures of the agency or office concerned.
gection 12. A ne~ section 14-116 is adopted to read as follows~
Section 14-138. License required.
(1) Re~uire~ent~ No adult bookstore, massage establish-
mant, adult ~otion picture theatre or adult dancing
shall be peal%ted to do business in Brevard Court%y, Flor~da~~~--"~-
having first obtained a license al require under thai Code.~~:~-'~''
Ihs followin~hSll be exempt ~compliance with the provisions
~otio~14-1~5(l}(a) and (c) of this Code~
(a) Any adult ~okst~e or adult ~n
theatre ~hich was open to the public on ~tober
ands
{i) is located at the sands location .~ the
effective date of this Code~ as~on October 26, 198{{
and
(ii) is o~ned by the same person on the
effective date of this Code as on October 25, 1983.
(bi '~ny massage establishment or a~ult dentin9
lis~ent open to the public on the effective date of
ordinance.
{~ ~y business, ~hich is exempt ~ro~ the provisions bf 14-
155(1) (a) an~ (~J aB se~ forth ~ve, shall continue tO be
from those re~lreMnts unletss
(a) . such business changes the location of Itt pfl~
place of businesl~ -'
(bi ~a~ship of such bul~n~s8 is ~ansfa~ld o~ ~ld
another or ~ a change In the principal Itek-hoiSt of
it} an expansion to the premtses~~ any r~dlling,
conlt~uction, addition to o~ subs2antial ~epai~ o~ the
which
(1) increases the available space for ~the operation
of the business, or
(ii} for which the obtaining of a building permit is
required under the law.
id) the name of the business operating from said location
is ohange~l or
is) laid bullnesl ceases to be open to the publle for
continuous period of two (2) ~eeks.
) Ail adult bookstores, maassage establishment, adult
motion picture theatres or adult dancing establishments shall be
licensed and comply with all requirements of Article VIII C, Article
VIII D, Article VIII E, Article VIII F, and Article VIII G as
applicable and unless exempted by Section 14-138(1) within nine (9)
months from the effective date of this Code,
{9 Classification. Licenses referred to in this Code
shall be classified as follower
(a) adult bookstore~ d~
db) adult motion picture theatre, w : ; _ -_ -
t~e-'-~'li:~ -' lei; ~ · -, ....... i.--- -
Section 13. A new Section 14-139 IS adopted_to read II
Section 14-139. Dis~alification.
by the ~ull~ing -- . - ..... Department, the Planning ~n~'~ning
Depar~en~, the Consist Heelth ~erviees Depar~n~ or ~e
re~rementl for the type of license applied for as eltlbl~lhld
I~ticles VIII C, ~rticle VIII D, ~rticle VIII E, ~rtiela VIII F~ and
~t~cle VIII ~ of th~s Code, or If the proposed licensed
I
fails to satisfy ali applicable building, zoning, health and
{2) Issuance of license where prior license has
been revoked or suspende~. Ho license shall be issued tot
{a) any individual, partnership or corporation whose
license under this Code is suspended or revoked!
(b) any partnership, a partner of which has · license
prelently suspended or revoked under this Code!
Icl any corporetion,~n officer, director oF
principal stockholder ~presently has its license under this
Code suspended or revoked~ or
id} any individual who lslor was at the time of
suspensionla partner in a partnership or an officer, director or
principal stockholder of a corporation, whose license under this Code
is presently suspended.
(3) Prohibited by law or court order. No license shell be
issued when its issuance would violate a statute, ordinance, law or
when an order from a court of law prohibits the applicant from
obtaining an adult entertainment or occupational license in ~revard
County, Florida. '
Section 14. A new Section 14-140 is adopted to reed ss £ollowe~
Section 14-140. License Applicationl, Applioatioa Fee.
(1! ae~ut~ed inf~r~ation sad docu~nte. Any individual[
partnership or corporation desA~lnq to en~aqe in the business ct
o~atinq an adult ~kstore, ~ssaqe establish~nt, adult ~oti~
plaflnl~g end Zoning Depa~Mnt a sworn application on ~o~
~ th~Planning and Zoning Depar~nt.. ~e applioation shall
tbs Iollo~lng /nfo~mationl~d shmll be accompanimd by the
doe~ntlt .. . .
(a). t~ the applicant
used by hi~ or
.an individual~his legal name and ell aliases
license, all windows, doors,°entrances and exits and the fixed
structural features of the proposed ~icensed premises. The term
"fixed structural features" shall include walls, stages, immovable
partitions, projection booths~ admission booths, concession boothl or
stands, imeoveble counters and similar structures that are intended
to be permanent. "
(2) Application,fee. Each application shall be
accompanied by a nonrefundable fee of T~o Hundred Dollars ($2~.00)
payable et the time the application is filed, in the event · license
is approved, said fee shall be applied to the license fee required
for the first year pursuant to Section 14-150 of Code. In the event
an applicant applied for more than one license for the same premises
and submits said applications at the same time, ~- .~.l} .,,~-,~. _
~..:
-~__ ~__;~; at ' :a.. ~..~, he shall submit · e£ngle non~efundable
fee of 1~o Hundred ~enty-~lve Dollars
Section 15. A ne~ Section 14-141, is adopted to read as
followsl
SectiOn 14-141. Investi~ation. Upon receipt of an
application properly filed with the~i~&nning and Joning-D~ert~nt,'
and upon payment o£ the application fee, the Sheriff of Hrevard
County shall verify the lnfor~ation required by Section 14-140{11{e}
is) of this Code~ The.f~Consumer Health Services Department,
Building a~Ao~ee~.on oepar~nen~, the_Planning and Sonins · '~P~','..:~
Department an~ the ~ergency Services D~t~c~ent. h 11 lnulti~l~lTr'~'!
the proposed licensed premises for co~pliance with this
other applicable laws and regulations relating to
aafetyjfire protec21on, zoning and public health. At the
of its investigation, each administrativ, agency shall ~~n~-
the application the results and findings thereof~ recommending elthlr
approval or disapproval of the application.
Section 16. '& new section 14-146 is adopted to read a~
(1) Approval and Issuance. Upon the completion of the
investigation si an application by the Sheriff of Brevard County, the
ldlng~ Department, the Planning and Zoning
Department, Consumer Health Serdice. Department, and the Emergency
the~anning and Zoning Department shall approve
or disapprove the application, If approved, the Planning and Zoning
Department shell issue the license upon the payment of approprllta
license faa provided in Sections 14-145 and 14-150.
(2) Disapproval and denial. If the Sheriff, the Consumer
~C
Health Services Department, the Building w~C~1~z~"~n Department,
~he Planning and Zoning Depar~menb or ~he Emergency Services
D~ reco~ends dtsapproval~ i~ shall indicate bhe reason
therefor upon the applicat~oa~ or ~n a separate writing, and ~he
Planning and Zoning Department shall deny the application. If the
appl$cat~on ~s d~sapproved, ~he PlannSng and Zoning Departme~ shall
notSfy tbs applicant of the d~sapproval and the reasons therefor.
NotSf~cat$on shall be by cert~fied mail and shall be sen~ to the
address on the l~cense application, which shall be cons$~ere~
correct address.
(3) Notwi~hltanding any other provis~on in ~hil Code,
Planning and Zoning Oepa=~ent shall deny any app~ica~on ~o~ I
license ~n which ~he applica~ has supplied false or
,,. .4, ~Pl.nning ending Depar~en~ .h.l~ or
81sa~rove all applications vi~in ~rty-five (4S} d~ fr~
,..'+
(5) Revocation. Should a license be issued as a result of
false ~nformat~on, misrepresentation of fact, or mistake of fact,
shall be revoked. If the a~pllcation is revoked, the~Planning and
Zoning Department shall notify the licensee of the revocation and the
reasons therefor. Notification shall be by certified mail end shall
be sent to the address on the license application, which shall be
considered the correct address.
{6) Appeal. #lthin fifteen (15) days liter the mailing of
either a notice of denial or preliminary denial of an application for
a license or a notification of the revocation of · license, the
applicant or licensee may take an appeal to the Board of County
Com~issioners as provided in Section 14-149. If the Board finds that
the application should be approved, it shall so order! and upon
payment of the appropriate license fee provided in Sectionl 14-145
and 14-150, the Planning a~d Zoning Department shall issue the
license. If the Board finds the license should not have been
revoked, it shall notify the Planning and Zoning Depart~ent who shall
reissue the license.
Section 17. A new S~ction 14-143 is adopted to read as followel
Section 14-143. Limitation on Licenses and Licensed
Premises. ~here shall be no limitation on the number of licensee
issued, but licensed premises shall observe the locational
restrictions contained in Section 14-155 of the Brevard County &dolt
Entertainment Co~ and in Appendix C - 2oning, Code of Brevard
County. & licensed premises may be owned by the licensee or may,be
leased by the licensee from a person not a licenaae under this Code!
provided, that & licensee who is a tenant or lessee may not surrender
his tenancy or lease to the owner or lessor if by So doing the said
owner or lessor will take possession, control and operation of the.>' L
licensed premises and the business licensed under this Code, unless
the license is transferred as provided in Section 14-146 end further
provided, that a licensee who is the owner of the licensed premises
may not lease or otherwise give up possession, control and operation
of the licensed premises and the business licensed under this Code to
any other individual, ~artnership or corporation, unless the license
is transferred as provided In iection 14-145.
Section 18. A new Section 14-144 Is adopted to read as follows~
Section 14-144. D_~splay of Llcenssl Nutilotion Prohibited.
AIl licensees licensed under this Code shall display their
licenses in conspicuous places on their liasnosd prmaloes, in ·
clear, transparent cover or frame. ?ha license shall be available
for Inspection at all times by the public. No person aha11 mutilate,
cover, obstruct or remove a license so displayed.
Section 19. I new Section 14-145 to adopted to read as fellowes
Section 14-145. Term of License! Renewals.
(1) Term. Ali licenses issued under this Code, except new
licenses, shall be annual licenses which shall be paid for on or
before October first and shall expire on September thirtieth of the
following year. A licensee beginning business after October first
and before April first may obtain a new license upon application
therefor and the pa~ment of the appropriate'license fee and ouch
license shall expire on the following September thirtieth. 'A
licensee beginning business after Hatch thirty-first end b~fore
October first may obtain a new license upon application thtrefor and
the payment of one-half of the appropriate license fee herel~
required for the annual licen0s and such licanss shall espire on
september thirtieth of the s~e year, ~e proyllions of
Subsection shall not affect the provisions of Section
(2) Renewals. A licensee under thio Cods shall
~tter of course, on or before October tirs~ by
license for the previous year or satisfactory
destruction to the Planning and ~onlnq Depar~ent and by paying the
appropriate license fee. A license that Is not rene~d by ~to~r
first of each year shall be conside~ed dslin~ent, an~, in addition
to the regular license fee, subject to delin~ency penalty of ten
percent of the license fee for the month of October and an additional
penalty of five percent of t~e license fee for each additional mon~ht
or fraction thereof, of delinquency until paid! provided that the
total delinquency penalty shall not exceed twenty-five percent of the
license fee. Ail licenses not renewed within one hundred twenty dayl
of September thirtieth will be revoked by the Planning end loning
Department, bnless such license is involved in litigation.
Section 20. A new Section 14-146 Is adopted to read as
Section 14-146. Transfer of License.
~hen a licensee shall have made s bona fide sale of the
business which he ts licensed under this Code to conduct, he may
obtain a transfer of the license issued under this Code to the
purchaser of said business, but only tf~ before the transfer, the
application of the purchaser shall be approved by the Planning and
Zoning Department in accordance with the same procedure provided In
Sections 14-140, 14-141, and 14-142 tn the case of issuance of new
licenses. Before the issuance of any transfer of license, the
transferee shall pay s transfer fee of ten percen~ of the appropriate
annual license fee. Licenses issued under this Code shall not be
transferable in any other way tha~ provided in %his Section.
Section 21. · new Section 14-147 is adopted to read aa
Section 14-147. Llceasea ~4o'vtn~ to.New Locatton~
Name of
{1) New Location, ~ licensee may move hiJ licensed ".,~...~
premises to a new location and operate at the new location upon
approval by the Sheriff of Brevard Countyt the Consume~ Health
Services Department, the Building and Construction Department,
Plan~ing end Zoning Department and the Emergency. Servicel Department
of the licensee's application for a change of location. ~he licensee
shall submit to the Planning and 2oning Department an application for
a change of location, accompanied by an application fee of
hundred dollars at the time the application is filed. The
application will contain, or have attached to it, · plan drawn to
appropriate scale of the licensed premises e~ ~he ne~ location
indicating the area to be in~2uded in the new licensed premisaa,
windows, doors, entrances and exits and the fixed structural ~eatures
of the new licensed premises. {he term "fixed structural featurll"
shall have the same meaning as in Bec,ion 14-140(1)(i). If more than
one license has been issued to the licensed premises at the old
location, the licensee shall .tats In his application for a change of
location ~ich of said llcanlel ere being ~oved to ,hi proposed new
location. Upon approval of the application, there shell be Issued to
the licensee a license for the new location without the payment of
any further fee other than the application fee for a change of
location.
(2) ~h.~n~e of pame. No licensee may change the name of
the business located at his licensed premises without flrlt giving
the Planning end Zoning Department thirty days' notice in writing of
such change and without first making payment to the Planning and
Zoning Department of a $3.00 change-of-name fee.
Section 22. A new Section 14-148 ia adopted to read as follo~l
Section 14-148. Suspension of Lloen/e.
{1) Violations of he~lth~ bulldln{¢ sonln~ or {irt
provisions. In the event a licensed premises la found'in violation. : , ~ .'"
of & health, building, soning or fire provision 0£ this Coder oF of
any other Federal, State or local provision, the appropriate 'agency
sh~ll, notify the licensee of said violation according to tho Standard
for correcting said viola,ionia) and shall gran~ the licenfel the
right to exhaust applicable a~lnistrative reMdiet. Should the
license fail either to corr,, the violation or to obtal~ In'~[- ,''
a&inlstrative reversal of the agency finding, the ~propria~
shall notif~ the Planning and Zoning Depar~en~, who shall forthwith
initiate procedures for suspension of licen.e.
(2) Other violations. In the event a turf or other trier
o~ fa~t In a ~ourt of law finds that a licensee has violated
14-161 of this Code, whether or not an adJucation of guilt has been
identical in length with the original period of suspension.
(e) ~he~ a license is suspended for a violation of
health, buildings zoning or fire.provision of this Code, or any other
federal, state or local provision as described in subsection (a)
above, the license shall not be reissued until said violation ii
corrected,
Section 23. A ney Section 14-149 Il adopted to reed as followlt
Section 14-149, Appeals.
(1) General Appeals. Appeals alleging error in the
dentals suspension or revocation of a license or permit under this
Code shall be by petition for a formal hearing before the Board of
County Commissioners of Brevard County, Florida.
(2) A notice of intent to appeal shall be filed with the
Clerk of the Board of County Commissioners within fifteen (IS) days
of the mailing of a notice of denial, suspension or revocation of a
license or permit. ~hereafter, and upon palment of a fee of $50.00
to cover e~£niatrative coats, a hearing will be scheduled within
forty-five (45) days., ~he Clerk of the Board of County Com~lSliOnere
shall give the petitioning party at least ~en (10) days' written
noti~ of the ti~ and pla~e for the hearing.
Section 24. A ney Section 14-150 is adopted to reed
Section 14-150. License fee.
(~) ~ et ieee. ~ere are hereby levie~ the foll~ng ~-.~.
a~nual lA,enos fees ~der ~is Codes ',;',.. ~: ~:,L~,'~%.',~
.t' ~ · .... ,~ .
ia) a~lt bookstore - t~ hunted dolllrtt -.~ ~ ....
(b) Mssage est~liohment - t~ hundred fifty
dollars~
~,~.; -
entered, the Planning and Z~ning Department shall forthwith initiate
procedures for suspension of license~
(3) Fins or Suspension of license.
ia) Procedure, Upon receiving notice that & licensee
hal violated · provllion of this Code, as provided in subsection
and (2) above, the Planning and ~oning Department shall suspend ell
licenses issued for the premises where said violation occurred,
unless otherwise provided below, and shall notify the licensee(s) of
hie action. Notification shall be by certified mail and shell be
sent to the address on the license application, which shall ba
considered the correct address.
(b) Periods of suspension. A single violation by a
licensee or his employees, of this Code shall result in suspension of
the Adult Entertainment License for forty-five (45) days. Upon ·
second violation of this Code, but not including any time during
which the license was suspended for cna hundred eighty (180) days.
Upon a third violation ~f' this Code Within · perio~ of two years fro~
the first of three violations, but not including any time during
which the license was suspended, the license shall be suspended for
one year. Ail periods of suspension shall begin on the fifteenth day
from tho date the Planning and Zoning Department mails a notice of
suspension to the licensee or on the date the licensee delivers hie
license to the Planning and Zoning Depsr~aent, whichever o~s
(c) ~11 periods of suspension shall begin'on the
fifteenth day from .the date the Planning and Zoning Depsrtment
a notice of suspension to the licensee or on the date the licensee
delivers his license to the Planning and Zoning Department, whichever '-
comes first.'
(d) Surrender of license required. If a licensee,
after having been mailed notice of the suspension of his license In
tho manner herein provided, fails to surrender his license to the
Planning and Zoning Department within fifteen (1~) days or fails
otherwise ~o accoun~ for the license to the sa~isfaction of the
Saobion 14-151. Records ~nd Reports! Consent b~ Licensee,
Each licensee shall keep such records and make suoh reports
as may be required by the gherl££, the Consumer Health Bervioel
Department, the Building and Construction Department, the Planning
end Seeing Department and the Kmergenoy Serviuee Dep~rtuent ~o ~
implesmn~ thio Code and carry out ia purpose. By applying for a
lioenae under this Code, an individual, partnership or corporation
shall be deemed to have consented to the provisions of this Code and
to the exercise by the Planning and Zoning Department and other
interested agencies o~ the powers given by Secbton 14-137 in the
manner'therein specified.
ARTICLE VIIIC - RE~UIREH£NTS ['Q~ ALL &.DULT
ESTABLISIIHENTS._
SectiOn 26t. A new Section 1&-152 is adopted to reed
follower
,Section 14-152~ General Requirements. In addition to
the Special requirements contained in Article VIIID~ VlIIR,
and VlIIG, each licensed preaises ahallt
ia) conform to ell applicable buildlnl statutes,
codes or ordinances, whether federal, state or local.
(b) conform to all applicable fire statutes, codes
or ordinances, whether federal, state or lacs1.
(c) conforn to al! applicable health statutes,
codes or ordinances, whether federal, state or local.
(d) have each and ever), Blass area that feces s
public thoroughfare or throuBh which casual passersby cnn see the
neteriele or activity inside the licensed premises covered over
by block paint or other opaque coverins! provided, that this
requirement shell not apply if the uncovered Blabs area exposes
'to public view only a lobby, or anteroom contnininl no material or
activities of an adult nature. Such lobb7 or anteroom may
contain e reception counter or desk and cha~ro or couches ~for ..
customers to uae while
(e) conform to the requirements of Chnptmr 38~,
Florida St&turns (198~)s and the rules and reseletione of~the~ , .
Florida Department of Health end ~ohabllibatt~a/ Service~-'*~a~oi~.~
pureusnt thereto. Each licensed premises abel1 be deemed rs bo ·
"piece servia8 the public" for the purpose of ean~?ry.
facilittesj provided, thee ~hen uore ~hen one license
for s ointle location, they shell collectively be considered as
one licensed premlsea if customers may circulate freely
throushout the entire srea of the licensed premises,
(f) Sonitsry facilities requirements -
(i) ~eter supply - The ~nter supply oust be
adequate, of safe, sanitary quality end ~FOm an approved source
in accordance v~th provisions o~ Chapter 17-22 of the Florida
Administrative Code,
(li) l'lumbtT*8 - Plumbing shall be sized,
installed and maintained in accordance with provisions of Chapter
10D-9 of the Florids Idm/nistrotivo Code end the B~-~d County
Plumbin8 Code.
(iii) Restrooms - 111 licensed establishments
shall be provided with .dequete and conveniently located toilet
facilities for itu employees end patrons in accordance
provioiooe of Chapter IOD-9 and lOO-lO of the Florida
Administrative Code. Fixtures shell be of readily cleo.able
sanitary deoisn. Toilet facilities shall be kept cleon, in seed
repair sad free from objectionable odors. Toilet rooms shall be
well lishted and adequately ventilated. Toilet tissue shall be
p~ovided. Easily cleanoble receptacles shall be provided for
waste materials and such receptobles in toilet rooms for women
shell be covered, Toilet rooms shall be completely snclooed and
shall hove tisht fifties, oelf-clooin8 doors. Such doors shall
not be left open except dortnB clan.inI or maintenance. Toilet
room8 shell not open directly into food service or preparation
areas (beverose is considered s .*'food*'). flsndwaohin8 Siino shell
be posted in each toilet room used by employees.
Section 26~ I new Section 1&-153 tw adopted to read
followo~
Section 1&-153. Advertisiui. No Adult
Hasees~ getabliehment~ Adult Notion Picture Theater,
Do.cia8 E"tebltehBent .halll
Bookstore
or Adult.~[
1. display a aisc ndvertioin8 ~he preSen~etio, of any
· ctivitI prohibited by 8 Florid. Statute, an ordinance of Brevsrd.
2. erect, install~ maintain, alter or o~erate-any tits
in violation of the Code of Brevsrd gounty%~
3. ensese tn, encourase, or ' permit, any form of
persons1 edvertiotnB for ' the commercial benefit of , the
establishment or for the commercial benefit of say individual
displays or exhibits specified anatomical areas within the
establishment ~ ~
~. display siins on ~he exterior of ~he s~ructure
wherein the business is conducted or on the property which the
structure is located which utilizes the depiction of the nude
· human figure, whether male or female or Shy words that refer to
specified anatomical ares. or specified sexual activitiel.
Section 28, A new Section la-15& is adopted and to read
folloval
~ectioq 14-15&, Entrance t.~o Adul~ Eflt~rte~u~en~
Establishment.
1. The entrance to any adult entertainment
establishment shall be designed in such s manner that no person
outside the building or property can see the materials or
depictions of specified a.stomtcal areas or specified aelusl
activities offered to patrons vithln the adult establishment.
2. Immediately Inside the entrance of any adult
entertainment establishment there shall be posted a well-lilhted
alan which aha11 read as follower
-HOTICE-
THIS ESTABLISHMENT OFFERS MATERIAL OR
ENTERTAINMENT HAVXNC SEXUAL CONTENT. SUCH
MATERIALS OR ENTERTAINMENT ARE FOR ADULTS
ONLY. IF THIS OR NUDITY WOULD OFFEHD
YOU, DO NOT ENTER.
Such etln shall bo clear end Xeltble end tho text thereof '.shell
bo met forth in letters of uniform size havtnI a height of not
leas then one (1) Inch htlh nor more than two (Z) Inches,
~ection ~9,, A new Section l&-l$$ is adopted to reed .ma
follower, ,',~ "~'~" ',~.
Section 1&-155, Location Requlremento,
1, Notvtthetandin8 any other provisions of thin Code or
,,~ pro.t'to, o~ Appa,dis C-Zo,l.~. Cod, of Sr,,,rd
Florida, no person aha11 cause or permit the eat~bliBhme~t'""or
operation of any Adult Entertoinment Eatabliahment; ao herein
defined, with/ne
~_~ "
(e) 1/~ mile ( feet) from any other adult
entertainment eotebliahmentl 6'!
(b) 1000 feet of any pre-existing religious
institution, school, day care center, OF playground;
(c) 500 feet of an area zoned for residential use
within Breverd County, Floridn.
2. giatmnce from e proposed adult entertainment
eetihliehmant to mn e{istin{ adult entertainment establishment,
church, a playground or a achool shall he measured hy following
the ahorteat route of ordinary pedestrian travel along I public
thoroushfare from the main entrance of the proposed adult
entertainment elteblishment to the main entrance of thc ~xigtin{
adult entertainment entabliahment, the main door of the church,
or, in the case of · school or playground to the nearest point on
the school grounds in uae aa a pert of the school facilities or
in the camm of a playground to the nearest part of the boundary
of the playground. The distance from n proposed adult
entertainment establishment to an area zoned for residential use
shell be measured by following the shortest route of ordinary
pedestrian travel elan{ · thoroughfare from the main entrance
the proposed adult entertainment establishment to the nearest
property line of any property zoned for residential use.
3. An adult entertainment establishment shall he
alloyed only in the following lend use claasificationet
8enerll retail lind uae classification (mU-l){ (b) a retell
varehouoin8 end wholesale buiineal lSnd uae classification (BU-J
2)j (c) industrial land uae classification (IU)j (d) hairy
indnstrill peri land use ~l~esificetion (PIP).
"'Section 30.__~, i niv Section la-1~6 is adopted to
follove~
Section 1&-156. Operation of Unlicensed Premiotl
It shall be unlawful for any person to operate In adult
bookstore, adult motion picture theeteF, massage eetsbltohment or-
adult dancing establishment unless such business shall have a
currently valid license therefor onder thio Code, which litenle
shall not be onder suspension either permnnently or conditionally
revoked.
Section 31. A ney Section l&-lS? is adopted to read as
followst
I.~cen~e Required of Commercis!
Section l&-lS?.
~ Advertiotns Adult Entertsinment.
Any commercial, ostabltshment that displsys within oho
hundrod (100) feet of its premises a slsn or other form of
· dvertlaeme·t iudicatin8 that said establishment enSsEee in I·
activity required by thio Code to be licensed ehall obtain
adult entertainment license for said activity. ,
Section, 32, s new Section 14-1~8 is adopted to reed ta
followe~
Section 16-158. Proscriptions Where Alcoholic Beyerosee
Are Soldt Dispensed or Permitted.
#o specified anatomical areas shell be displayed or
exposed on · licensed premises where alcoholic bevereseo ars.
sold, dispensed or permitted, except is connection with excretory
functione.~
Section 33, A new Section 16-1~9 is adopted to reed
follou·t
Section 1&-159. Admission of Nlnoro Unlawful.
It Bhall be unl·wful for · licensee to adult or te
permit the admission of ~inore within a licensed premie·~, This
~dult Bnterteinment Code shall not apply to cendect'~..tha
rosuletion of which hog been preempted to the State under
8&7, Florida Statutes
Section l&-160. Sole to Minors Uelevfst,
It shell be unluwful for soy person to sell, bertar'-~or ',
tire, or to offer to sell, barter or siva, to say uleo~,L%i~aY'~'.;~
service, materiel, or device on the premises of any &dult'~
book~tore, adult motion picture theater, meeooJe establishment or
adult dancins establishment,
Section 3S. A new Section 14'~61 is adopted to reed
fellowes
Section la-16~. Permittins Violations o! Code or
Illegal Acts Prohibited.
No licensee, owner or employee shell permit, suffer or
alloy violations of this Code or tlletal acts to take piece on
the licensed premises, if the licensee or employee knave or hem
reeBOn to knov that such vio£stLons or LlleKsl acts ere tskLn!
pla~e.
Section 36~ A ney Section 16-162 is adopted to
follower
~e~tLOq 1&-~62~ Permite for Employees in
read se
btce.eed
1. Adult entertainment ~ermit required. Unless
specifically excluded belay, it shall be unlavful for any person
to obtain employment in an establishment licensed Under the Adult
Entertainment Code, for any form of consideration, or to exhibit
or display specified anatomical areas in an adult bookstore,
muoasae establishment, adult motion picture theater or adult
dancesS eetabltshinS unless end until such person shell have
first obtained an Adult Entertainment Permit or temporary permit
from the Sheriff of Brevurd County, Florida. This Section shall
not apply to employees enBaaed exclusively in performinI
Janitorial or maintenance services. ' ~
2. qualifications. Employees of a licensee on ·
licensed premises shell not be leas then eiahteen (18) years if
sba, or teenty-one (21) years of ese if alcoholic beveresee are
sold, distributed or permitted et the licensed'premises.
permit.
'3.
vorklnt et
198S, to continue vorkin! until an application for · permit under
thio Code ti filed vith the Sheriff of Brevsrd County, not later
then forty-five (65) days for adult bookstores, masesse
esteblishmentes, adult motion picture theaters, end amnesty-five
(?$) dayu after said date for adult dentinS establishments, end
%
for · period thereafter not to exceed one (1) reek.
(b) Ail present and prospective employees of an
edelt entertainment establishment shall file an application for
an Adnlt Entertainment Permit v~th the Sheriff of Brevard County.
Application for and issuance of adult entertainm~e~
'(a) Permission Lo hereby 8rented for an employee
on adult entertainment establishment on December
(c) All applications shell he accompanied by a
non-refundable payment ~f e $$0.00 fee.
(d) It aha11 he ~he duty of the Sheriff of Brevsrd
County to issue the applicant n vrttten permit which shsll be
staffed by the Sheriff of Brevsrd County or his desJBnee, end
shell beer· the ness, address, sex, ese, sisnsturs, sad photoorsph
of the applicant, The Sheriff of Brevsrd County shall procure
the fioserprints end s photojreph of the applicant and the
nose(o) of ell entertainment establishments vhere the applicant
is to uork or perform and shell keep the ease on permanent file
in its office. The finserprints, names of establishment(s) sod
photosrsph of the applicant shell be furnished by the applicant
et the time of filins his application. The Sheriff of 8Fevsrd
County may request an applicant to provide such
iflformotion ss is necessary to effect the purposes of this Code.
Upon delivery of the permit to the applicant, the sppltcant Bsy
basin workinB on the licensed premises ss s permanent employes,
There ahsll be submitted vith etch application for
s permit proof of the applicant's 88e. Such proof BUy bo
provided by production of the applicant's driver's license,
passport, or s certified copy of his birth certificate. ~f'ths
applicant is unable to furnish uny of such documents, n
certificate from the public school authorities ss to the
the applicant upon coteries school ss required by Section
Florida Statutes (198~)~ ~r the school suthoritiem'of the-stets
vhere applicant enrolled in school, shell be submitted. Upon
inability of applicant to establish s birth date as above
provided, then thi ssBe ~.~y be est~b~d in the order~:.iof
preference ss provided by S. 232,031 U%vevsr, uncsrtifiod copies
el such documents shell not be accepted .
Any spplicsnt vho does not possess s driver's
license, passport, or certified copy of his birth certilicste Bey
obtain a temporary permit upon completion of all other
requirements of en application end submission of a vritten
request to the appropriate autbority in his state of birth that
certified evidence of his date of birth be provided to the
Sheriff of Brevard County.
(e) No permit shall be issued when its issuance
would violate a statute, ordinance,' law or when an order from
court of lev prohibits the applicant from ohtaininB an adult
entertainment permit in Brevard County, Florida.
(f) Any adult sntertuinment establishment holdin[
a valid adult entertainment 'litensa issued pursuant to this Cods
shall be permitted to provide its employees with current permit
application forms approved by the Sheriff of Steward County end
to take the photograph of the applicant in a manner end with
equipment approved by said Sheriff of Brevard County on the
express condition that the establishment (1) require the employee
to complete the application form and be photographed within one
vorkin[ day of the time said employee beEins to work or perform
in said establishments (2) mail a notice in vritin8 to tho
Sheriff of Steward County within one working day that said
ampi,yea has begun to work or perform st said estsbliahmentl (3)
make the employee avai]~le for fina~rprinting at a time end
location to be determined by an agent appointed by the Sheriff of
Brevsrd County, at which time and place said employee . shall
present to the seent the employee's Completed application fh~l
and photoersphl (6) on the first Honday of every month provide
the Sheriff of Brevsrd County with a current listint of Ill
employees end their positS.esi ($) in exchsnie for accaptoOce of
the benefits provided by thin sub-subsection, waive any,sn~
ri[his to challen[e the permit requirements of this Code!
rei.bur.e Brevnrd County for rems.noble additions1 ez,e?..e.
'incurred pursuant to this sub-subsection.
6. Revocation. Should a permit he issued as n result.
of false information, misrepresentations of fact or mistake of,
recto it shell be revoked.
5. Expiretion and Renewal. k permit under iht6 Coda
shell expire two (2) years from the date of isauence. A permttee
under thio Code shall be entitled to a renewal of hie permit as
metter of course, except when nnid permit hms been suspended or
revoked, upon presentntion of his previous permit of presentation
of an affidavit es to its destruction to the Sherif/ of Brevard
County sad payment of · $50.00 fee.
6. Pousefsio~ of permit required.
(a) It shall be unlawful for an employee., es
defined i. this Codei to york, perform or to exhibit or d/spiny
specified anatomical areas in au adult entertainment
eatsbliuhment without un Adult Entertainment Permit iff his
immediate possession at ell times.
(b) #o person charmed with vtolstin! thin section
fhnll he convicted if he produces to the Sheriff of Brevsrd
County within seventy-tvs (72) hours of detention)or in court) n
permit theretofore issued.
(c) Upon receipt of · properly authenticated
no~tficntton from the Sheriff of Brevard County verifyin8
tsnuunce of a valid permit, the Clerk of the Court is authorized
to dismiss such cases at any time prior to the defendant*a
appearance in court.
7, Violations. Any person who violates the provisions
of thio section, or otherwise fails to secure 8 permit
required by this section, shell be prosecuted end punished
accordance v~.thtunerellew,~'"'"%
(u) Procedure.. Upon recetvins notice that · ~ury
or other trier of fact in · court of low #an~ fouud?tbot;~s
pernitOa v~olated mnY provision of thio Code, whether ~r~ot.:~Bn
ad~udicatlon of Built hen been entered, the Sheriff of Brevsrd
County shell suspend the pernit end nba11 notify the peruttes.,of
his motion. Notification aha11 be by certified nail and,shall,be *'*
neet to the addrenn on the permit application, ~htch shill be
considered tho correct address, .:*:/
(b) Periods of Suspension. & nlntle violation of
this Code shall result in the suspension oft the Adult
Entertainment Permit for forty=five (4~) days. Upon n second
violation of this Code within a period of tvs years from the date
of 8 prior violation of this Code, but not including any time
during which the permit was suspended, the permit shall be
lUspenlion
hie permit
first.
suspended for one hundred eiBhty (180) dsys. Upon e third
violation of this Code vithin a period of tva years from the
first of thrse violations, but n~in~ludini any time durin8 vhich
the permit vas suspended, the permit shell be suspended for one
year. &Il periods of suspension shell bests on the fifteenth day
from tho date the Sheriff of Brsvard County ms/Is · notice of
to the permitee;or on the date the permitee
to.the Sheriff of Breverd County, vhichever
(c) Surrender of permit, required. If a permites,
ester herin8 been mailed notice of the suspension of his permit ..
in the manner herein provided, fells to surrender his permit to
tho Sheriff of Brevard County vithia fifteen (15) days, the
period of suspension of the permit shall be extended. I ud6M end
shell not expire)until · period hem elapsed after the dote of
surrender of the sa_rule, or after the date of expiration of the
permit, vhichever.;-o~-s first, hlch to identical in lenlth vtth
the ori8inal period of suspensionS'
9. Appeal. I~ an application tar · petaLS is denied or
If s permit if suspended or revoked, the procedures specified
Section la-la9 shell be ovallubl~ to the applicant or porBitOi~
in the manner therein specified. If the a~pl/cent or porsitee
does not appeal the denill, suspension or revocation of
.. ~,.'/i: ;{',..,,., . ,.! . ;,,'.'-,~ ,I ·
10, Replacement of Lo.~ Permits, Replaceaento for lol~
permits shell be obtalnud by complettnI on eppltciti s required
ifl Section 11-162(1) above. All applications for replaeemeok'~d':!": .... '~ '
permits shall be eccoapeflied by 8 ~en dollar~(~10.0~) fee,
11. Che~ o~ Addrtsst ~sue or Place ~
Yhenever any person, after opplyinI for or recei~i~l
entertainment permit~ oholl move from tho residential
named i~ such application, or in the pe~issued to him, such
person shall vithin thirty (30) days l~rit ten notice to the
Sheriff of such cheese and shall make a payment to the
the a~ount oi $3.00 for chaise of address fee. In no even~ shell
this eliminste or modify the req~i~ements of Section l{-l{T(l) es
to chortle of buoinemo loc,~ion.
ARTICLE VII1D = SPECIAL REQUIRENENTS FOR NAS~A~
ESTABLISHNENTS.
Sectio~ 37_._~. A ney Section 1&-163 ia adopted to read
followst
Sectio~ 14-163. ~uas~Re ~stnblimhmuntl.
1, It ohm11 be unlawful for say ~eraon, firm
corporation to operate, own, conduct, carry on, or permit to
operated, ovned, conducted or curried on, any muuuaBn
eetmblishnent o! any type or kind, includina)but not limited to,
meesaae parlor, meeaeae service buuinesa, or any maasmie business
or 'service offered in conjunction wtthmor es part of/any heelh '
club, health spa, FeuoFt or health resort, 8ymnasiun, athletic
club, or other business, vithout compliance with the provisions
of this Code.
2. in addition ~o the 8sacral requireBent~conteined
Articlo VIIIC, 8 messes· uetmblimhment mhml~ observe the
iollovins special requirement8:
a. Any. massnae establishment oeek~n8 a license
under this Code shall presen~ to Ch~x Collector, a
license issued pursuant to Chapter aao, Florida Statutes. (198~
~o license under thin Code shall be issued In the' event
applicant fells ua present said state license.
b. Dreesin8 roans shall be propor~ioned to.
eaxin~m nueber of persons or patrons vho ere expected te,~ b~ tb'~,~'~'~ ,~,i: '."~j~;~,~: .,~ '"/'~'
them et one t e, exc udi 8 st en ante end aosLltont8,
provJdLn8 · m~fllmu, o~ EveJve (Z2) square feec per person or
nonelip surface end shell be covered et th{ veil ~gnctiou for '; ;
thoroush cleaning. Each dreffin{ room area shall conta{n t{oor'y,. ,.-~ , '
draino. Partit{on valle shall be covered from the f{oor to
thirty (20) inches above the floor with ceramic tile or ~ other
impervious materiel.
c. One shower ehell be provided for each twenty
(20) men or women, o~~'~:
.... , based upon the mmximum
number of persons who are expected to be usin8 shower fmcilities
at one time, and separate shower facilities shall be provided for
men and women. Floors and partition valle shall be constructed
aa required in subsection (h) ~or dressing rooms. Each shover
will be constructed or ceramic tile, other impervious material,
or minnie molded material. Each shover shell provide hot end
cold tannins water.
d. One locker shell be provided for each patron
who ia expected to be on the licensed premises Bt one time, which
shell be of sufficient size to hold clochin8 end other articles
of weortn8 apparel. Each locker shall be capable of bain8 locked
by the patron, with no one else havin8 the key no lan8 nm the
patron ia using the locker, or the locker shall be under the
constant attention and supervision of the attendant.
e. Each room or enclosure where massena or
services ars performed shall bm provided with lithtins of m
minimum of five foot candles ne measured fear feet above the
floor end one light capable of providin~ fifty foot candles of
liiht in ell cornerq of massage, bath, aho~er or toilet rooms
vhich lithe shall be turned on vhen cleanlfl8 these areas.
f. The premises aha~ have adequate equipment for
disinfecting and clmanins undlmponabla instruments and
used in administering meanalaa or manssae services. Such
materials end instruments shall be cleaned after sachs. USes
end aanitiains shell bm approved
practices accepted by the National Sanitation Foundation,
American Academy of Sanitarians or Center for Disease Control ....
S* Closed cabinets shall be provided for eob ;of
all stornse Oquipmant, supplies end clean linens. All uaad~mnd
soiled linens end towels shell be kept in water soluble linen
bass designed to hold infectious linen and kept in covered
containers or cabinets, which containers or cabinets m~d shall bo
kept separate from the clean storase cabinets.
h. Clean linen and towels shall be provided for
each massage patron. No common use of towels or linens shall be
permitted.
i. Oils, cremes, .lotions or other prepsrntiona
used in administering messages or massage services shall be kept
in clean containers or cabinets.
J. Each room or enclosure where manassas or
massage services era performed shall contain a hand-vaehlnl link
with hot and cold runnins water. Each technician shall velh his..
or her hands in hot tunnies water, mains soap or dLsinfeetant
before and after administertnB s mananas to each patron.
k. All walls, c~tlinga, floors, pools, lavatories,
shovers, bathtubs, steam rooms, and all other physical facilities
shell be in good repair and maintained in e clean end sanitary ..
condition. Wet and dry heat rooms, steam or vapor rooms, or
steam or vapor cabinets, shover compartments, 8nd toilet rooms,
shell be thoroughly cleaned each day the business is in
operation. Bathtubs and shovers shell be thoroughly classed
after each use.
1. In the event male and female patrons era
served, ee~srate rooms ~r enclosures for mssaagea or
services s~sll be provided.
~ \ m. #o person shall consume food or beverasee in :
messene vo~k,,arsaa, nor cheil there bo any smokier
work areas. ~ ,
"4* Animals, except guide dose, shall oat be;,', .
t
displays or exhibits specified anatomical areas ere prohibited.
q. N? person shall message the genitals or ~pubtc
area of another p~roon.
Section 38. A new Section l&-ld& ia adopted to read aa
follows:
~ctton l~-ld&. Massage Technician, No massage
technician shall administer a massage to any person:
1. If asia maaaase technician believes, kfloVl or
o
ehouXd knov that he or she is not free of any contslioul or
communicable disease or tnfecttonl
2, To uny person sxhibttin8 any akin funlue, skin
infection, skin inflammation, or skin erruption! provided hoverer
that · phyeiclan duly licensed to practica tn the State of
Florida may certify that such person may be merely neeeeledl
3. To any person who ia not free of communicable
diseases or infection or vhom the massage technician believes or
has reason to believe is not free of communicable diseases or
infection.
Section 39. A new Section 14-165 ia adopted to read aa
~ollovsz
Section 14-16S. License Required. No employee of a
macedge establishment may perform · massage or maseege service
upon any person unless he or ohm is duly licensed pursuant to
Chapter 680. Florida Statutes, and such licena6 is in Bood
etendtnS and active. Such license, aa issued pursuant to Chapter
180, Florida Statutes, must be prominently displayed at the
maccalc establishment, , .,
Section 60. A neu Section 14-166 is adopted to read es
~ ' ' Section la~166 ': ....
~ . Home Hat·aaa ?raetlen~. ~"~""le"~"~r
only bo idaini·tered tn the petron'l hone b~ e
berths · permit issued in accordance vith Chapter 480, Flortdl
Statutes, and beind employed b! a massage eetsbilehment
valid license pureuant to thio chapter. The
aetebliahneut must keep, for et least one year, a record of all
maeeese establishment, · record of the placee vhere these
massages uere administered and a record of the massage technician
who administered these meseeBes. No massage technician shall
administer any manse8e services ut a location vhich does not
conform to or comply with the standards set forth herein.
Section 6~. A ney Section 14-167 ia adopted to read as
follows:
Section 16-167. Hinore.
1, No Hnnenge establishment license bolder shall alloy
a message patron under eighteen (18) yearn of ese to enter said
establishment nor ehel] a message technician perform any nervicee
upon a message patron under eishteefl (16) yearn of' ess without
the written connent of that message pntron*n parents or lesnl
guardian, executed before s notary public of the State of
£1oridn.
2. Each massage establishment 14cease holder shell keep
a register' or list of ell message patrons under eighteen (18)
yearn of ese end keep n copy of the written consent ns required
in subsection 1 of this section.
Section 62. A new Section 16-168 in adopted to read an
follovel
Section l&~160. Hours of Operation. Ho message
establishment shell be opernted between the houri of eleven p.m.
and nine a.m. Fo mnnne8~ patron shell remain upon the pram/oeo
of a massage establishment during these hours.
Section 43. A ney Section 16-169 in adopted to read
Section 11-159. Inspections. Inepectione,~-ky--..dd~
!
C~pd~-Le fire department and Department of Connumer Health
~ determin~ that the purposed of LhJs Coda ere
Sectiop ~ A ney Section 16-170 iu adopted to
follovnl
Section 16-1707 Specified Sexual Activities.
be unlawful for any person to perform or enange in
sexual activities in a massage establishment or on the
thereof.
read
It shell,
specif..ied
pr~mioea
ARTICLE VIIlE REqUIREHI~N'iS lO.__~g AI)UI/I' HOTION
THBATRBS.
Sect~qq &~5. A ney Section l&-lTl ia adopted to
follows!
,Section l&-lTl. Adult Notion Picture Thaatrsa.
reed se
1. It shall be unlawful for any person, firm, or
corporation to operate, ova, conduct, carry on, or permit to be
operated, owned, conducted ur carried on, any admit mo~tos
picture theatre ne defined by this Code, without compliance with
the provielona of thio Code.
2. In addition to the sonora! requirements contained in
Article VIIIC, an adult motion picture theatre cheil obnerva the
iollovinI npecisl tequtrementnt
(n) Each adult motion picture booth cheil be open
or have s rectaneulnr shaped entroncewny not less than thirty
(30) inches wide nor less then nix feet hish.
(b) Bach adult motion picture booth uhal! have
sufficient seats or couches to accommodate the maximum number
persons expected to uae the booth. The maximu'e number of persona
who may occupy · booth 8hail be stated on or neer~ the
mntrancevoy, end only that number shall be permitted to bt in
booth at one time.
(c) Each adult motion picture booth 8hlll
destined Io that · patron or customer uttltzinI dame ti vtl~bli "
from i continuous ma~n aisle, Under no circumstances Ihtl~.qd~Xt ':~.~ ./..,. ~"j
motion picture booths be able co be locked or secured to pruven~
entry thereto,
(d) AIl areas where · patron or customer fo t~ ~b~'~, ...,
not be obscured by any curtain, door, ve2i OF other enclosure,
(e) In addition to the uanitary itcilitief
required by Section 1~-1~21 there shell be provided within or
adjacent to the common corridor, poooasewey or area in adult
motion picture theatreu having adult motion picture boothu,
adequate lavatories equipped with running water, hflfld-cleengin8
8oep or de,argent end sanitary Corals oF hand-drying devicee{
common towels are prohibited.
(f) An sdu?~ moslem ptcture theatre deellned to
permit vievin[ by patrons seated in.automobiles or other saetia!
provisions shall have the motion picture screen as ettusLed, or
the perimeter of the licensed premises so screened, that the
projected film material nay not be seen from efly public rLiht-of- ,
way or any rnatdentie! property.
Sectio~ ~6. A new Section 1A-l?2 ia adopted to read es
follovs~
Section 14-172. Ninore. #o adult motion picture.
theatre, se defined by this Code, shell sllo~ shy person ruder
elahteen (18) years of ese to enter said establishment.
Section 47. A ne~ Section 14-173 is adopted to read es
Section 14-173. Inspections. Inspections by tho
Ce~f~ Emer8ency Services D~-1~t'T~t, Plsnnin8 end Zonin8
Department,~Coneumer Health Services Department and~Buildin8
C~sss~n Department shell be from time to time end at least
twice each year tn inspect each adult motion picture theatre in
tbs County for the purposes of determinin8 that the provialona of
~hie Code ore beiflR complied with.
followatSecti°a 48. A new Section IA-I?& is adopted to read
be unlev~ui ~or any person co' dinplny or exhibit npec~iid~' ~'"' .... ~";:
anatomical areas in adult motion picture theatres or the premllel
thereof except in connection with excretory functions.
Sectt~ ~9, A nov Section l&~l?$ ia adopted tn
fellowes
SeCtion l&-l?$. Specified Setual Activities.
reed el ~ .
It shall'.
b® unlae[ul for any person to enaaae in op~etfied sexual
activities in adult motion picture theatres OF on the ~emieeO
thereof.
AR?ICLB VlIl F - ~E~UIR~BNTS FOR ADULT BOOKS?ORES.
Section 50. A new Section 14-176 is adopted to read as followal
Section 14-176. Adult Bookstore Sstabllahs~nts
1. It shall be unlawful for any person, fir~, or
corporation to operate, own, co.duct, carry on or psr~lt to be
operated, owned, conducted or carried on any adult bookstore as
defined by this code, without compliance with the provision of this
code.
2. In addition to the general requirements co.esi.ed in
~rticla VIII C an adult bookstore shall observe the following special
requtrements~
a. All materials, devices and novelties shall be so
displayed that they cannot be seen by anyone other than customers who
have entered the licensed premises.
b. If recordinqs are offered for sale and customers
may listen to them while on the licensed premises, soundproof booths
or rooms shall be available for use by customers who desire to
listent and each such booth or room shall havel
ti) one clear window, facing the major port~o~.~, of
~ha IAoensed pre~aises, covering not less than one-fourth of the wail
ares into which the window is set, which wi,dow shall not be covered
or obscured in uny ~anner while the booth or zoo~ is in use!
(ii) sufficient chairs or couches to &oeoeee~te '
' .the expected number of persons who will occupy the booth or zoo:at
one timel
(iii) the number of persons who may occupy the '
booth o~ room et one time clearly stated on or near the door 2~: the -;'
booth or room, and only that number of persons shall be palliated
inside the booth or ~oom at one time!
(iv) the door or doors opening into the booth or
room incapable of being locked or otherwise fastened so that it or
they will freely open the door from either side~
{v) al! areas where a patron or customer la to be
positioned visible from a continuous main aisle and not obscured by
any curtain, door, wall, or other enclosure.
Section 51. A new Section 14-177 la adopted to read aa followlt
Section 14-177, Minors.
No adult bookstore, as defined by this Code, shall allow
any person under eighteen (18) years of age to enter said
establishment.
Section 52° A new Section 14-178 is adspted to read as follows!
. , Section 14-178j~ Inspections°
· , Inspectic~! by the ~ Emergency Services
:::::::::::::::::::::::::
and at least twice ~ --- _ -- _ - _ each adult bookstore in the
County for the purposes, of dete~mining that the provisions of this
Code ere being c ~Lh.
Section 53. A new Section 14-179 is adopted tO read aa followal
Section 14-179. S~c~f~ed~at~ical~eal.
It shall ~ unlaeful for any perlea to display or
specified anat~icaX areal in adult bookstores or on the
thereof except Xn connection ~Xth excretor~ funcbXonl.
SeC21on 54. A new 8set,on 14-180 ~o a~opted to read a~ foll~
Section 14-180. Specified Sexual ActivitAeo.
It shall be unlawful for any person to engage iff
sexual activ~tie0 In adult b~kstoreo or on the pruAoeo
Section 5S. A new Section 14-181 if adopted to read as
Section 14-181. Sale of Non-adult Mate=Lei in Mult
B~kstoreo~
1. Adult bookstores as defined by this Code, which
or offers for sale or rents for any te~ o~ c~no~derat~on non-adult
materials In addition to adult mater~els as defined by th~o Code
shall observe the followinq additional requirementst
(a) Materials which are of a non-adult nature shall
be segregated from adult material.
(b} ?he adult materials shal! be maintained in
separated area from which no patron may review lush
aria utilized for non-adult
(o) No patron shall be required to enter laid
at the entrance to lush ares which shall read as foilowl~
NO~XC~
· HX8 AR~A OFF~R~ MA?~RXA~8 RAVXNO
~uch sign shall b~ ~i~a~ and legibl~ an~ the text
the~aof shall ba sat forth ~n letters and un~fo~m .Xza
height of nob less ~han one (l) Xnoh nor more than two
·hXs requXrement shall be in addition to that requirements o~
Section 56. ~ ~ew Section 14-~82 ~s adopted ~o read as follows,
SectXon X4-182. ~ovXdXn~ of AddX~XonaX Xn~o~tXon.
~e o~er~ operator o~ any ~o~er~XaX es~ab~Xl~a~ whXoh
leX18 or rents books~ magazines, periodicals or o~her prXnted Mtter~" ."' "
or photographs~ films, ms,ion pictures, video cassettes, oxide or
other representations or re=ordings or novelties an~ devioo~My ~ ......
listings sales records for the purposes of dete~lning
e~rctal est~lishment Is an adult bookstore. Failure to provide
s~ld materials upon written re~eot of the Planning'and ~ning".:~-.'' .... ~ ~ '; "
Department of Brevard County Shall be sufitcien~ ~aUll
lUSplnsion of that ~o~ercial establlshment~l lloense
simulate any specified sexual activities.
~. It ehsl] be unlawful for any person who msintuins or
operates a commercial establishment, [egardlesu if it is licensed
under this Code, where said person knave ar hen reason to know
that alcoholic beverBgeB are on the premises of the commercial
establishment to knowingly, or with reason to know permit, gaffer
or allow any person on the premises to Inlets in or limulnto
specified sesual activ/ttee.
6. It shell be unlawful for any employee, customer or
patron of s Commercial establishment, regardless of whether it
licensed under this Code, to participate, while on the premises
in a utraddle dance, as that term Is defined herein, where said
employes, customer, or patron know, or has reason to know, that
alcoholic bevereaes ore sold, dispensed, or hrnught onto tho
premises for consumption on the premises.
7. No employee, while on the premises of a commeFcie!
establishment reasrdlese if it is licensed under this Code or
within the scope of hie e~ployment, shall contract or agree to
perform, for any form of consideration, · straddle dance and
actually perform said straddle dance, reasrdless of where ouch
performance takes place, ,
8, It shall be unlawful for s customer or patron os the
premises of a commercial establishment, whether or not it is
liceuu*d under thio Code to touch mn employee's pubic
breaSt(s) or lenltall, Whether amid.employee ia clo~hed or
9. Employers of commercial establishments within
arevard County are responsible for the acts of their employees.
It shellacs .nlavful for any person maintaininl
operatin8 · coBmerciel establishment, reBardleeu of whether it la':~.
licensed under this Code, where said person knows or ha8 reason .
to know that alcoholic beveEsaeo are off the premises of the
commercial establishment, to knowingly or with reason to ~knov,
permit suffer or alloy any person on the premises to perform or
participate in n straddle dance, es defined herein or to alloy
any customer or patron of a premises to touch an employeeOa pubic
area, breast(s) or 8animals, whether said employee is clothed or
UO~.
10. It shell be unlawful for any pnrnon within n
commercial eetebAtehment, reler~leen of whether it ti liceneed
under this Code, where said person knows or should hove known
that alcoholic beverages ore off the premise, to uno or be
prennnt in nrnsn partitioned
are dsoilned to be occupied tosnther or nlonn, by
persons on the premised of such establishment for thn purpose~ of
enSsging in specified sexne! activities or private dnncinB
performances,
11. It shall be unlawful for any person who operates or
maintain8 a commercial es~ehliehment, regardless of whether it is
licensed under thil Code, where said person knows or should have
known that alcoholic beveraseo ere on the premises, to suffer or
permit the construction, use or maintenance of areas partitioned
or screened from public view that are designed to be occupied
together or alone by any person .or persons on the premises of
much establishment for specified sexual activities or private
dentin8 performances.
~ection 58. A new Section 14-185 in adopted to rend nn
fell·vat : c- ,
Section 14-185. In~pectiofln. Inspections by the
Coufltytn Emersnncy Services Department, P1nnning and ZouiPl - *
Department, Consumer Hnalth ·invites Deportment sad Butldi~t~gfid %'~,~'"1' j.,'.~.:?,~.',,;~!,i~,,.' .~..:'
twice each year to inspect oath 8dult dentin8 eltlblishtlntl
the Countl for the purposes st deteruinlfl[ that the pro~istene ~[.
this Code ere basal Complied with.
AR?ICLE VIII H - VIOLA?~ONS
Sections 59. A new 8action 14-186 is adopted to read aa followl
Section 14-186, The following presumptions lhall in actions
brought for violations of this ordinancel
I. Any pareon~who owns, operates, maint?~ml or
commercial establishment, which advertises within 100 feet of. the'
general public that said establishment provides, allows or permits
the exhibition or display of specified anatomical areas, is presumed
to be aware that the exhibition or display of specified anatomical
areas is taking place In the establishment.
2. Any establishment which has received an occupational
license to operate coma~rcially is presumed to be a conu~ercial
establishment.
3. A person ~ho operates or maintains an adult
establishment ts presumed to be aware of the activities which are
conducted in said establishment.
Section 60. A new section 14-187 is adopted to read as
Section 14-187. Proof.
1. In all actions, civil or crintinal, for violation of .
this ordinance, testimonial evidence that a beverage was an alcoholic
beverage, beer or wine may be offered by any person who, by
O~ wine, or Who by taste, lmel! ur drinking of such..liqu~dt
knowledge of the presence of the alcoholic content thereof or the '.
intoxicating effect thereof. ',~
2. The presence of alcoholic content of any bev~rege,.b~l~
or ~ins may be eho~n by hydromete~ or g~avity test made l~ o~ ews~
from the presence of the fact finder by any person who has knowledge.
of the use of said instrument, but the production of such
optional.
Section 61. A ney .~ction 14-18, i. adopted to read al ~ollo~_.g~
Section 14-188. Penalties. f~a~
1. The Board of County Commissioners of ~revard Cou~ty~
Florida, ma~ bring suit to restrain, enjoin or othervile prevent the
violat~on o~ the Code. ~ ~,:
mi.de~eanor and punished according to general law.
Section 62. ~ ne~ Section 14-189 la adopted to ~ead as followe~
Seotion 14-189. E~tective Date.
This ordinance and the p~ovls[onJ thereo~ shall take e~fect
pursuan2 2o lay.
B~ PROHIBITING PR~ONS FROH EXPOSING PRIVATES:
PARTB AND EBHALB BRE~BTB~ ~NG~OING IN SBXU~ .~, "*'
COHDUCT~ AND C&UBING DEPICTION OF NUDIT~ ~HD~
BEXUA~ ~HDUCT~ PROHIBITIN~ BIHULATION
8BX~AL CONDUCTI PROHIBITING
HAIHTAIRING~ OMHIRG~ OR OPERATING SUCH
ANY SUCH PROHIBITRD ACTIVITYp HAKINO
L~IS~TIVE FINDI~8I PR~IDING PER.TIES ~R
VIOLATION; PROVIDING FOR 8EVERABILI~YI AND
PROVIDING ~HEN THIS ORDINAHCE SHAL~ TArE
WHEREA8~ ~he County Commission has been advisod of
~a~d of Count~ Commissioners o~ ~e Count~ v. ~zteEhouse, 348 So.2d
916 ' (2 DCA ~18. 1977) I affizmed~ Har~tn v.
Board of Coun~ CommissloneE8 of Lee Coun~ 364 So.2d 449
1978)I appeal dismissed~ HBE~In
BusEd of Coun~* CommlssJoners of Lee Counter 99 8.C~. 2024
which decisions held that a municipality may regulate caEbain
e~vibieo within esbablis~nbs dealing in alcoholic ~vegages~ 8~
MHER~S~ ~he Counb~ C~mlsslon bas ~en ma~e swage o~ ~llfoznit *~ '
v. LsRue~ 93 8.Cb. 390 (1972) and Hew Iogk S~a~e LlquoE Aubhogi~
Bellanca~ 101 B.C~. 2599 (1981)~ which decisions held ~ha~
municipality may prohibit various forms of actual and simulated nude
and sexual conduct and depiction thereof couple~ with tleohol in -. ._
public pieces begets undesirable behavior~ and that pzolti~utloae " - ~ : '
attempted ~ape~ zape~ mugdeg~ and assaults on police offic~=l I~i
occug~ing In a~ a~ou~ establls~ents deali~' In alcoholic ~zagel
where nude a~ sexual conduct and depiction thereof il ~si~t~l IM*" '~ "~ ~
#HERRAS, County Commission is desirous of prohibiting the ix]bllc
display of nude conduct or the simulation thereof, sexual bShl~ior or
the simulation thereof, and graphic depiction of nude and sexual
conduct or the simulation thereof in establishments dealing in
alcoholic beverages; and
~H£R£AS, es~ablishment dea~in~ in alcoholic beverages is defined
&ny business or comm4rcial establishment (whether open ~o the
public st large or ~here entrance is limited by cover charge or
membership requirement) including those license~ by the State
end/or service of alcoholic beverages, and any.bott}e clubl hotel!
motel! restaurants nightcl~b! country clubs cabaret~ meeting fa~llltfy
utllixe~ by say religious, social, fraternal or s/miler orgenixe~lofl!
business or commercial establishmen~ where a produc~ or article
sold, dispensed, served or provided with the knowledge, actual or
implied, that the same will be, or is intended to ~ mlx~ combi~
~ith or ~unk tn connection o~ combination with ~n alcoholic ~veEage
on the p~emises el said business o~ comme~cial ~stablishment;
business or commercial establishment ~he~e the ~onsumption
alcoh01ic beverages is permitted. A p~iva~e residence~ vhethe~
~Emanent o~ tam,fury In natu~e~ Is not an eatablis~nt, deall~ in
~e substance et such definition efflEm~ in Patch ~terpElsos ~ In=.
HO~ THERRFORE~ BE IT EHACTED BY THE PEOPLE OF THE ~UN~ OF
FL~ ~RXDAt
(a) ~O ps,soft shall expose to public view his or
her genitals, pubi~ area, vulvu, anus, ina1 ~left
or cleavage or buttocks or any simulation ~hereof
in any eotoblishmen~ dealing in aXeohoZl~
any porti~n of he~ breasts below tho top of tho
e~eole 'or any simulation thereof in
es~blis~ent ~81t~ in Ilc~oli~
(e) ~ ~son main~aln/~, ~l~, or o~ratf~
suffer or permit any person ~o expose ~o public
view his or her genitals, pubis area, vulva, anus,
anal ~left or cleavage or butt~ks or simulation
thereof ~lthifl ~he establishment deallng
eXcoholl~vers~s.
(d) No ~rson maintaining, ovnlng~ or o~ra~l~ an
es~blis~ent dealing in ulcholic beverages
suffer or permit any Semele person to expose
publl~ view an~ po~tion o~ her breasts below the
. top of the areola or an~ simulation thereof within
the es~ablis~ent ~ealing in alcoholic ~ve~ages.
(el ~o pe~son shall engage iff afl~ fie person
maintaining, o~ning et operating an establishment
:i
dealin; in alcoholic beverages shall suffer or
permit any sexual 4ntercourse, masturbation,
sodomy, bestiality, oral copulation, flagellation,
any sexual act which is p~ohibited by law,
touching, caressing or fondling of the breasts;
buttocks, anus or genitals or the sl~,ulation
thareof within an establishment dealing in
alcoholic
If}' ~o' parson shall causa sad no ptraon
maintaining, ouning or opurating an establish~ant
dealing in alcoholic beverages shall suffer
pez~lt the exposition of any graphic
representation, including pictures or the
projection of film, which depicts human genitals,
pubic urea, vulva, anus, anal cleft or cleavage,
buttocks, female breasts below the top of the
areola, sexual late,courser' masturbation, sodomy,
bestiality, oral copulation, flagellation, any
sexual act prohibited by law. touching, caressing
or fondling of the breasts, buttock,, anus, or
genitals, or any simulation thereof within any
establishment dealing in alcoholic beverages.
SECTIOH 2. It is hereby found that the acts prohibited in
Section 1 above encourage the conduct of prostitution, attempted rape,
rape, murdere.,.snd assaults on police officers i'n and[.around
establishments dealing in alcoholic beverages, that actual and
simulated nudity and sexual conduct.end.the depicition ~hefeof coupled
with alcohol in public places begets undesirable behavior, that
sexual, lewd, lascivious, and salacious conduct smsa9 persons and
employees within establishments dealing la alcoholic beverages results
in violation of law and dangers to the health, safety and welfare of
the public, and it in tbs intent of this ordinance to prohibit nudity,
stoas Sexuality, and the simulation and depiction thereof
SECTIO# 3. violations of Section 1 Of thio Ordinance shall be
puflishedby imprisonment for not more ~han 60 days and a fine of Five
hundred Dollars ($500.00).
Da~ed thXl 15th day of Hay, 1986.
BOARD OFCOUHTYCO~ISSIOHER$ OF FLAGLBR
J ATTESTt
"'~ELTON B BARBER
.'~erk, 8oard of County
,~nJssione:s
feel cop,/
Date effective per Florida Statutes 125.66
ORDIN~qCE' NO. 8~- ~1
J%N ~0~INANCE REI~TIN(~ TO ADULT ENTB~A~N~
IN B~ CO~Y, F~RXD~ PROVIDING
~GXS~VE A~HO~ZATI~ SPECIFYING
A~A OF E~FORCE~TI ~IN~ FXNDXN~S O~
XDENTZFYX~ THE XNTE~ OF THIS
P~VXDXNG ~FXNXTXONS~ P~HIBXTXN~ NU~E
S~MZ-NUDE E~TE~AXN~, AS DEFXNED, ~N CO~RCXA~
ESTABLZSH~S AT WHICH aLCOHOLIC B~GES
POSSESSED OR ~FFE~D FOR S~E OR ~N~TXON
THE P~MISES~ ~ROHXBXTXNG ANY PE~ ~ING,
~XNTAXNIN~, O~TIN~ OR LEASING 8~CH ESTAB-
LXSH~TS F~OM ~UFFERING OR PE~Z~N~ NUDE
SEMI-NUDE ENTE~XN~NT, AS DEFXNE~, ON THE
P~XSES OF SAID~ST~LISH~NTSI P~OHXBXTXNG
P~YEES ~D PAT~, SP~ATO~ O~ ~HER
IN SU~ EST~SH~S~ P~HZBXT~G ~E ~N-
STR~TXON~XNT~CE ~D USE O~ PA~XTIONED
OR SC~ED A~AS Z~ SUCH ESTAB~SH~TSf P~-
HXBITXN~ O~SIDE AD~RTXSE~NT ~I~ ~COU~GES,
SOLICITS, .INDUCES OR ~S ~ONDU= PROHIBITED
BY THIS O~IN~CE IN ~UCH EST~LISH~S~ PRO-
VIDING P~S~TIO~ P~OVlDI~ FOR P~F~ PRO-
VIDING PEN~TIES~ PROVI~OR S~ILITY
PROVIDING FOR ~ EFFE~I~ DATE.
~ ~ BE IT ORDAINED BY THE BOARD OF COUNTY COHMISSIONBR9 OF
~ CO~TY~ ~O~DA, ~hat~
Sec~onW. ~gislat~ve Au~or~zat~on~ Thee
~s enacted ~n the interest of the public health, peace~
~rals and general welfare of the citisens an~ inhabitants of
Baker County, Florida, pursuant to ~t~cle ~II, Section.,} (f)
of the Florida Constitution and Section 125.01(1)(o) and
of the Florida Statutes (19~5), and under the authority of
th, County to regulate the sale and cons~p21on of alcoholic
beverages, pursuant to the ~enty-First ~en~ent ~o the
Constitution of the United States. ~~~
vi Baker County. .
,.ct,on~: ~:~ndin~. 0£ Fact, Th. Board o, Coun,y
Commissioners o£~ounty, Florida, £1nds thatl
(a} There is presently in the Northeast Florida area
an increasing trend toward nude and semi-nude acta, exhib~tions
and entertainment, and toward the utilization o£ nude and
semi-nude employees engaged in other service oriented aspects
of and by ~he commercial establishment~ subject hereto°
(b) The competitive co~ercial exploitation of such
nudity ~d s~i-nud~y is adverse ~o ~he public's ~n~ere.~
~he quali~y of life. ~one of c~erce and ~o~al c~uni~y
enviro~en~ in ~aker County.
(~) ~he c~ercial exploitation of nudity and
nudity ~ns~s~s of ~e use of nude and s~i-nude
~n connect}on w~h or for ~ha pro~ion of ~e lale of
or services~ and ~he ~eceip~ of money by ~he person engaging
~n nud~ or s~i-nud~ en~er~a~en~ ~n ~chang. ~o~ o~ as con-
s~derl~on for a nude or s~i-nude perfo~ce ~ such in*
{d) ~e c~ercial exploi~a~ion of nude and
ac~s~ ~xh~b~ions and en~er~ai~en~ frequently ocaurs in
o~eroAal eltiblilben~l eA~er selling or all. Lng oonl~tion
of alcoholio ~verages on ~he
(e) There 18 a direc~ relationship be~veen ~he cons~-
~ion of alcoholic beverages and ~he nude an~ o~i-nude ac~ivities
men~lone~ above, prohibi~e~ hezeunde:, and more f~lly descried
hereinaf~er and an increase in criminal activities, ~
~, and disturbances of ~he peace and 9oo~ order of
- 2 -
the co,~unity, and the concurrency of these activities is
hazardous to the health and safety of those persons in
attendance, and tends to depreciate the value of adjoining
property and ham the economic welfare of the 'community al
a whole.
· ///~ ~) The combination of the sale or consumption of
alcoholic beverages with the performance of nude and semi-nude
acts, exhibitions and entertainment is adverse to the public's
~nterest in the quality of life, tone of commerce and total
cony. unity environment in ~t~County.
(~) In order to preserve the public peace and goo~
order, and to safeguard the health, safety, morals and welfare
of the county and citizens thereof, it is necessary and ad-
visable to prohibit nude and semi-nude acts, exhibitions and
entertainment in commercial establishments, at which alcoholic
beverages ara, or are available to be sold or consumed.
~} In order to preserve the public peace and good
order, and to safeguard the health, safaty~ morals and welf~xe .
of tbs County and citizens thereof, it is necessary nnd ad-
visable to regulate and restrict the conduct of mmt~', operators,
agents, employees, entertainers, performerS, patrona,
subject hereto. ~" ....
Section~. Intent of Ordinancs~ The intent of
Board of County Commissioners of ounty, Florida, in
adopting this ordinance
(a) To prohibit nude and semi-nude ante~taimnent, as
defined, at which &lcoholiC
in
commercial
establish~ent0
erages, beer or wins is~ or is available to be, sold, dispensed
or consumed ~
defined, in coa~,ercial establishments at which alcoholic
beverages, beer or wine is, or is available to be, sold,
dispensed or consumed~ and
(c) To proscribe conduct and activities which encour&ge
the competitive comercial exploitation of nude and semi-nude
entertainment in conw. ercial establishments at which alcoholic
beverages, beer or wine is, or is available to be, sold,
dispensed or consumed. '
Section ~. Definitionsz The following definitions
shall apply in this ordinances
(a~vertisment' m~lay, notice
~nforma~on d~ed to at trOt public ~ntion, inc~ding .
b%no; li~ted .khandbi~s~gns, b£11bo~tracks,
pla d ritten notices.
(b! "alcoholic beverage' means al~ beverages contain~ng
mora ~an one percent (1%) of alcohol by ~eight, including
~ (c) 'Board' ~eana ~he Board o£ count~ Co~iasionera of
~ ~o~nty, ~lorlda.
~ {d) 'Coeeuerctal' means operate~ for pecuniary qai~,
~hich ahall be presmned for any establishment whAch has'receiVed
an occupational license. For purposes of this ordinance,~'°~ra2
ting for pecuniary gain shall not depend on actual profit or
loeeo
~ (e! 'Setabliehment' ~eane · physical plant or location,
or the co~ercial activities or operations being conducted, or
both together, as the context of ~ia ordinance~ay require.
anal clerk or cleavage.
- 4 -
~----~(ii) The actual or slnm~d displayl~ by
or ~w trill
~oint ventures~ partnezships~ estates~ trusts~
trusts, syndicates~ fiduciaries, corporations~ gover~ent
officials, 9over.ant entities and all othe~ groups oz c~-
binations.
~ ~ ~ 'Premises' means a physical plant or l~ation,
'~hlch is enclosea by ~alls or any other enclosin~ structural
device, or ~hich is covered by a single r~f or eith a single
sharefl entrance, if not covered by a single roof, and shall
include any structure, structures or la~d, or contiguous
structures or land, ~t~in ~ fee~ of the physical plant or
l~ation ~here such structures or land and the physicaI plant
or location are under 'co.on ~ershtp, control or
Section [. Prohlbltion~
(a) ~11 b. unlaw,ul.fo~son to
at~hich ~cohollc b~erages area/or are svail~le to ~
1) ~} It shall ~ unlavful for any f~ale person,
on the premises of a c~e~cial establis~nt at which ~lcoholie
beverages are, or' are available to be ~ sold, dispensed.: eon-
8~ed, ~ssessed or o~fere~ for sale or cons~ption on ~e
praises; to expos~.t~ublic view that areo of the
female breast at or, bede the areola thereof or to ~ploy any
device or covering which is intended to give the a~peorance of
or s~la~e auch areas of the female breast ~crl~d
It{ It she1! be unlawful for any person, while On
the premises of a commercial establishment et which alcoholic
beverages are, or are available to be, sold, dispensed, eon-
sumed, possessed or offered for sale or consumption on the
pre~ises, to expose to public view his or her genitals, pubic
area, bu%~ocks,~at~nus or anal cleft or cleavage or to employ
any device or covering which is intended to give th~_appearance
of or simt~late the ge~itals, pubic area, buttocks;'Aanus ~r
anal cleft or cleavage.
{
~)f~! It shall be unlawful for any person owning, main-
tatninq~ operating'or leasing any conuuercial establishment at
which alcoholic beverages are, or are available to be, sold~
dispensed, consum~d,.ppsse~ed o~0of~ered~ior s&ale or consump-
tion off thc. premises ~spffe~ ~ pprm;Lt~an~lperson oO ~he
employ.
merit
es to
~loyee or other not employed
(£) It shall be for
or,employee,, while on the
t shall be unlaw!ul for any entertainer,
.ils on the co~erci&l
~i~h any
.$. or
f (9'} It be unlawful for any main-
.
(h) It aha11 be unlawful for any person, while on
the premises of a co~arcial establishment regulated under.
this ordinance, to use or be present in areas partitioned
or screened from public ~iew that are designed to be occupied
together or alone bM any person or par~ons on the pr.e~aes ~
(i) It shall be unlawful for any person owning, ~ain-
raining, operating or leasing a commercial establishment
regulated under this ordinance to suffer or permit the con-
struction, mainten~nce or use of areas partitioned or screened
from public vie~ that are designed to be occupied together
or alone by any person or. parsons on the vre~ises of such __/
· . ~
..,'.,..':
Section ~. Proofs
(a) In all actions, civil or criminal, for violation
o£ this ordinance, proof that the beverage was an alcoholic
beverage, may be made by any person vho, by experience in the
past in handling or use of alcoholic beverages, or who by
faits, smell or drinking of such liquids has knowledge o£ the
presence of the alcoholic content thereof or the intoxicating
effect thereof, may testify as to his or her opinion whether
such beverage is an alcoholic beverage.
(b) The presence of alcoholic content of any beverage,
may be shown by h¥8rometer or gravity test made in or away
from the presence of the fact finder by any person who has
knowledge of the use of said instrument.
Section l~. Penalties:
(a) Any. p?rson may bring suit to restrain, enjoin or
otherwise prevent the violation of thio ordinance in the
Circuit Court o! ~e~ounty, Zlorida.
(c) l~ the ~er, o~zato=, lessor, lessee, ~age~,
~ployer or an2 o~er~reon p~ticipatlnq tn the~tntena~e,.~
or operation o~ a c~ercial establis~ent at ~hlch alcoholic
beverages aze, or are available to be, sold, dis~n.~, con-
· ~ed~ possessed o= o~e~ed ~o= Sale or eons~ption on
praises is convicted ol a violation o~ this ordinance, the
~oUnty Occupational License issued to such violator
said establis~ent may be revoked ~ action ol the 9card u~n
due notice.
(d} If at any time the license of a c~e=cial estab-
lis~ent is revoked pursuant ~o subsection (c) above, at least
~s shall elapse before another license amy I~
issued to the same establishment, Such license may be issued
only after a public hearing held before the Board.
Special acta of the Florida legislature applicable only
to unincorporated areas of St. Lucia County, County ordinances
and County resolutions, or parts thereof, in conflict with this
ordinance are hereby superseded by this ordinance to the extent
of such conflict.
If any portion of this ordinance is for any reason held
or declared to be unconstitutional, inoperative or void, such
holding shall not affect the remaining portions of this
ordinance. If this ordinance or any provision thereof shell be
held to be lnapplicabie to any person, propert~ or circumstances,
such holding shall not affect its applicability to any other
person, property or circumstances.
applicable thtoug~ut ~he
The. Clerk be and hereby is directed forthwith to send ·
certified copy of this ordinance to the Bureau of I~;~
Department of Btate,?? ~apltol, Yellahammee, Florida, 33304~'~.'
This ordinance shall take effect ~~7,
te
Provisions of this ordLance shall be incorporated in the
Counb¥ Code and the word "ordinance" may be changed ~o "section,"
"article" or other appropriate word, and the sections of this
§ 24-8 OFFENSES AND btlSCELLANEOUS PROVISION8 § 24-11
Secs.;24-$, 24-9. Reserved.
Editor's not~--Ord. No. 6735-A, § 2, adopted ~ept. 6, 1977, specifically
amended the Code by repealing §§ 24-8, 9-4-9, which had pertained to
fights, riots and disorderly proceedings, and indecent exposure. Bald
section had been derived from Cede 1926, § 1238, and Cede 1959, §§
26-8~-, 26-46.
Sec. 24-10. Shows, acts, sketches, etc.; use of obscene lan-
guage or conduct; display of female body; strip-
tease.
It shall be unlawful for any person, firm or corporation
to permit participation by any person, or for any person
to participate, in any scene, gketch, act or play in which
obscene language is used or obscene conduct is indulged in.
It shall be unlawful for any person, firm or corporation
to permit a female person to appear, or for any female person
to participate in and appear, in any scene, sketch, act or play,
with the breflzts or lower part of ,the torso beginning at the
hip line and buttockg uncovered, or so thinly covered by
mesh, transparent net, lawn, skin-tight materials which are
flesh-colored and worn skin-tight, so as to appear uncovered.
It shall bo unlawful for any person, firm or COrporation
to permit a female person to appear, or for any female
persor/ to participate and appear in any gcene, sketch, act
oi- play, fully or partly clothed, and to gradually disrobe .bY
discarding clothing or attire so that the breasts or lower
part of the torso beginning at the hip lihe and buttocks are
uncovered, or so thinly covered by mesh, transparent net,
lawn, skin-tight materials which are flesh-colored and worn
skin-tight, go as to appear uncovered. (Code 1953, § 26-103;
Ord. No. 2114, § 1, 11-6-56)
State law reference~--Obscene lnngua~, § 847.06, Fla. State.; Indecent
exposure, § 800.08, Fla. Stats.
Sec.. 24-11. Female nudity for commercial exploitation pro- hibited; definition; exceptions.
(a) It shall be unlawful conduct in any commercial estab-
lishment for any person, firm or corporation to procure, coun-
Supp. No. 31 "
1507
~.....~,,.... ~ ~,~ '~, - ,,. .
[:~,*..,.'r.~'i~...';.~-.'.~:':'. ~-: 2~. ~ ~:~.~
~.'~'~71~ ~ ~.'~.': '-,' .:'. ' ~' . '"
· ~ ~.. ~ ' ..~, .. ~ ~. . -,
§ 24-11 TAMPA CODE § 24.11.1
SCl, aid, ass!st, or permit a female person to appear and expose,
exhibit, display or reveal, or for any female person to appear,
expose, exhibit, display or reveal, her nude breast or breasts
or lower part of the torso, beginning at the hip line and
buttocks uncovered or covered by any costume or garment
which by virtue of construction or transparency of material
exposes, exhibits, displays or reveals the nipple of the breast
or the pigmeted area adjacent thereto, or lower part of tre
torso as herein described under any of the following con-
ditions:
(1) While performing customary "barroom" . type of nude
dancing comfonly referred to as "topless" and/or
"bottomless" dancing.
(2) While serving any food or beverage.
(3) In connection with the promotion or the sale of any
product or service.
(b) For the purpose hereof, the "nude breast" is hereby
defined as the exposure, exhibition, di.splay and revelation,
either continually or intermittently, of the nipple or the pig-
mented portion adjacent thereto, other~dse defined as areola.
(c) The provisions contained herein ghall not apply to the
exhibition, presentation, showing or performance of any play,
ballet, drama, tableau, production or motion picture in any
theater, concert hall, museum, school or other similar estab-
lishment which is devoted to such presentation as a form
of expression a~ differentiated rom commercial or business
promotion or exploitation of nudity for the purpose of ad-
vertising, promoting, selling or serving products or services,
or otherwise advancing the economic welfare of a commercial
or business enterprise. (Code 1958, § 26-103.:1; Ord. No.
4101-A, § 3, 12-12-66; Ord. No. 6609-A, § 2, 11-9-76; Ord.
6549-A, § 2, 12-21-'/6)
~ee. 24.11.1. Nudity on oremlses where alcoholic beverages of-
fered for sale, -
(a) It shall be unlawful for any person maintaining, owning
or operating,, a commercial establishment located within the
Supp. No. 31
1508
! 24-11.1 OFFENSES AND MISCELLANEOUS PROVISIONS J 24.11.1 i'. ' ~'::"" " '"
, , ·
V City of Tampa, Florida, at which alcoholic' beverages are :':':"::"'
," offered for sale for consumption on the premises: ,.. "
.... (1) To suffer or permit any female person, while on the :'.
premises of said commercial establishment, to expose
to the public view that area of the human breast at or
below the areola thereof. ' ·
(2) To suffer or permit any female person, while on the *.
premises of said commercial establishment to employ .-..
any device or covering which is intended to give the ",' :*"
appearance of or simulate such portions of the human '
female breast as described in subsection (al (I).
(3) To suffer or permit any person, whileexposeOn the premises il i..?'
of said commercial establishment to to public .
view his or her genitals, pubic area, buttocks, anus or
(4) To suffer or permit any person, while on the premises , :
of said commercial establishment, to employ any :.'.~::"
device or covering which is intended to give the i.::J~i'~i.;~../.::,...: ..' ..... ..' ..
appearance of or simulate 'the genitals, pubic area, ~.~::.:~" ~.~;.'.=' ."i!~:· :.'*;~..~ .. '~-:." ~.,
. 1:~'..', .-: :......;~.:....:. ....... . · ~'...:
~ buttocks, anus, anal cleft or cleavage. ~::;~;!".:.:,::- '~:::!'.!.':'..;.:'.'.'..... ' '
I,?~:':~ .....,:..:,.;..,:.., .,.: , ,,...~/~ .. "'c
(b) It shall be unlawful for any female person, while on ..
..... " · '
'~ ' the premises of a commercial establishment located within
the City of Tampa, Florida, at which alcoholic beverages are '***
offered for sale for consumption on the premises, to expose '
,..-,: to public view that area of. the human female breast at or ', '.-. :'".
below the areola thereof, or to employ any device or covering
.... which is intended to give the appearance or simulate such ' ..; .!¢f!'~".~'" ., :~ .. ' .... '
areas of the female breast as described herein. ..
(el It shall be unlawful for any person, while on the .I.'.:.:!:i~..~:.., ..' ...'..'. . ·
premise8 of a commercial establishment located within the ~ ~::_-~.,','~..'.~:._',t~.:"~.?.,..~ ~.'~ :,~ i:.:?:.~ ~' , .
~ ~.~ ...-., .¢~,~ .,~ ,.~ ~,. ~ .,. ~.- -.~.... ~ .. ~-...,..
.~,. ~,~ .;-~.~,/~..~,~?~,~..~ ~_....,~ ~..
City of Tampa, Florida, at which alcoholic beverages are
offered for sale for consumption on the premises, to expose "**--..),,"-';~"~-~..-.:-:** **,.,~. ':.'~.~ .,.~ ,::': .-
, ..,....;~.
to public view his or her genitals, pubic area, buttocks, antra ~,l~.~.!,,~,.r~..~!i~.,.~.,~.t,.~,~w.,.~. · }: ;, ........ .,~-,~.'..~.-.~,,~ ..,:.,.:.~..-~.-., - ....
or anal cleft or cleavage, or to employ any device or coVering ' . ............ ' ....
which is intended to give the appearance of or simulate the
genitals, pubic area, buttocks, anus or anal cleft or ~ · -
cleavage~
Supp. No. 66 1508.1 I .' '
!.: - .... ' .. ... '. : .-,.
;.-.:-~;,'.,-...~.,. :. ..... ~,. .- : ~ : ', .
~ ~,,.'~'~, t~ **~-'-~'-. ':.~.,, ~. r..,:.~ '..,, ~.,:'*-?.';'.,,'.
~::.,:~'~;, ;.::-:::,'~.~.~:.:~ .:'.~.'..'::,:..'.-::::~ .~ :-~ ....... , ..:'
,.~:.~.....~"75T~,'~:,T~'~:,~'~,~'f:'-~~~a'~ .. / .... . ... ~.~'~'~;~.'.i~'~'~;~'::~,~.'..?';..~,-:~,~':'-'., :~. ,,. ,.
§ 24.11 I TAMPA CODE ! 24-12
(d) Any person who shall violate any provision of this
section shall be guilty of an offense against the city
punishable as provided in City of Tampa Code, section 1-8.
(e) if the owner, operator, lessor, lessee, manager,
employee or any other person participating in the operation
of a commercial establishment located within the City of
Tampa at which alcoholic beverages are offered for
consumption on the premises shall be convicted of any of
the offenses designated in subsection (a), (b), or (c) hereof
then the City of Tampa shall have just cause to revoke the
city occupational license for said establishment. Revocation
shall he by. the city council which shall follow the procedure
set forth in section 20-65 of the City of Tampa Code.
(f) If at any time the license of an establishment is
revoked pursuant to subsection (e) hereof at least six (6)
months shall elapse before another license may be issued to
the same establishment and such license may be issued only
after a public hearing on same is held before the city
council. (Ord. No. 6846-A, § 1, 2-7-78; Ord. No. 7252-A, § 1,
8-7-79; Ord. No. 7510-A, § 1, 10-21-80)'
Editor's note--Ord. No. 7252-A, ~ !, adopted Aug. 7, 1979, rendopted
Ord. No. 6846.A, from which the provisions of ~ ~4-1 I.I were derived, ~m an
emergency ordinance inasmuch ss laid Ord. No. 6846-A was declared void
by the Hillsborough County Cuurt, Crimlnel Division. Ord. No. 7262-A
subsequently emended by Ord. No. 7259-A, ! !, adopted Aug. 9, 1979, which
provided an effective date of Aug. 9, 1979 for Ord. No. 7252-A.
"(I)
(A)
24-12. Burglar/robbery alarm systems.
Definitions:
Alarm systems means any mechanical, electrical or radio-
controlled device which is designed to be used for the de-
tection of any unauthorized entry into a building, struc-
ture or facility, or for alert!ng others of the commission of
an unlawful act within a building, structure or facility, or
both, which emits a sound or transmits a signal or mes-
sage when activated. Alarm systems incl_ude, but are not
limited to, direct dial telephone devices, audible alarms
and proprietor alarms. Excluded from the definition of
alarm systems are devices which are designed or used to
Supp. No. 66 1508.2
BOARD OF COUNTY
COMMISSION£RS
December 11, 1987
Honorable Robert Knowles
St. Lu¢ie County Sheriff
Post Ofice Box 2148
Fort Pierce, Florida 34954
Krlsto A. Storey
Heother Young
?otis_ G. l:ergus~.~_~
COUNTY
ATTORNG Y
Donlel S. Mc In~yre
ASSISTANT COUNTY ATTORNEY
ASSISTANT COUNTY ATTORNEY
AtOne?ALIT ~/"ll ~J?Y ATT('~
, ~.~'
Dear Sheriff Knowles: ,
RE: Draft Ordinance No. 88-11 (Formerly No. 87-3)
The Board of County Commissioners will hoZd a.publio hearing
to consider the adoption of propOsed Ordinance No. 88-11
(formerly No. 87-3) regarding adult establishment~t its regular
meeting on Tuesday, January 26, i . n~ormation ! am
enclosing a'copy of the Notice of Intent together with a copy of
the proposed ordinance.
! request ~hat you attend this public hearing on January 26,
1988, and be prepared to discuss Section 1-3-11 of the'proposed
ordinance with the Board of County Commissioners.
SincerelY, ' .-
Daniel S. MCln%yre .~-~'
County Attorney
DSM/ih
EncZosures
Copies to:
Board of County Commissioners
State Attorney
County Administrator
Community Development Director
HA~,RT t. FINN. Ols~tlo No. I · J~JOY CULPEPPilt, Dis, lo No. 2 · JACK KRIEG~.R. Dl$,lc~ No, il · R. DAtF. TI~FELNEIX. District Ho. 4 · JIM MIl, IIX. DIs,lO No..5
County Admlnlsltoto~ · WII.DON D. LEWIS
2300 Vlrglnlo Avenue · Fort Pierce, FL 3,1982-5652 · Phone (305) 466-t 100 Ext, 214
BEFORE TIiS BOARD OF COUNTY COI~41881ONER8
BT. LUCIE COUHTY, FLORIDA
NOTICE OF INTENT
NOTICE IS HEREBY GIVEN THAT THE BOARD OF COUHT~
COHHISSIONERS OF BT. LUCIE COUNTY, FLORIDA, Will sons,der
adopting a County Ord~naflco (No. 88-11 fo~erly No. 87-03)
regarding adult establishments a~ ~ts regular meeting On Tuesday,
the 26th day of January, 1988, a~ 9~00 a.m., or as soon
~hereafter as %~e ma%tar may be heard, at the St. Lucia County
Adm~n~stration Bu~ld~ng, 2300 V~rg~n~a Avenue, Room 101~
P~erce, Florida. MaC,ers affecting your personal and propert~
r~ght8 may be heard and asked upon. AlL ~n~oros~o~ persons
~nv~ed ~o a~tend and be heard.
Cop~os of %ho proposed ordinance ma~ bo obtained fr~ ~he
County Attorney ~ 8 O~fi~o, S~. Luolo County . ~ ~nist~a~lon
Building, 2300 Virginia Avenue, Room ~06, For~ Ploroo; Florida,
34982. ~ondmont8 ~o tho proposal may bo made a~ tho publio
hearing.
If any person doc~do8 to appeal any dooisiOnr~mado
respeo~ ~o any ma~e~ considered e~ ~he meetings or~ he.lags of
any board~ conferee, co~lss~on, agency, co~o~ oF adv~so~
group, ~hs~ person w~ll need a record of tho' p~oo0°dings and
~h8~, for such purpose, may need ~o ~nsuro ~ha~ · verbatim rooord
of tho proceedings is made, which record, should ~noludo
~os~mony and ov~dunoe upon which ~he appeal ~S ~O bo based.
~pon the ~eques~ of any per~y ~o ~ho proceeding, lndiv~due~s
~es~fy~ng during a hearing w~ll be sworn ~n. Any par~y ~o ~ho
proceeding ~ be granted a~ oppor~un~y ~o cross-exam~ne any
~nd~v~dual ~es~fy~ng during e hearing upon request.
aN ORDINANCE AMENDING CHAPTER 1-3 "ALCOHOLIC
BEVE~GES" OF THE CODE OF ORDINANCES OF
LUCIE COUNTY, FLORIDA; THEREBY PROVIDING FOR
LEGISLATIVE ~UTHORIZATION, FINDINGS OF FACT
AND DEFINITIONS; PROVIDING FURTHER FOR TIlE
PROHIBITION OF CERTAIN ACTIVITIES RELATING TO
THE DISPLAY OR DEPICTION OF SPECIFIED
ANATOMICAL AREAS O~ SPECIFIED SEXUAL
aCTIViTIES AT E~TA~LISI{MENTS AT WIIICH
~LCOiIOLXC BEVEH~GES AHE PHESENT, OH ~E
AVAILABLE TO BE, SOLD, DISPENSED, CONSUMED,
POSSESSED OR OFFERED FOR SALE OR CONSUMPTION
ON THE PRKHZSES; PROVZDZNO FOR PROOF AND
PEN<ZE$~ PROVZDZNG FOR COHFLZCTZHG
PROVZSZONS, SEVERABZLITY, APPLZCABILZTY AND
FXLZNO WZTH THE DEPARTMENT OF BTATE;
PROVXDINO FOR AN EFFECTXVE DATE, ADOPTION AND
CODIF/CATZON.
THZS NOTZCE EXECUTED AND DATED THZB 4TH DAY OF. ~3ANUARY,
1988.
PUBLISH DATE**
PUBLISHER**
TYPE AD**
PROOF TO:
Submitted by**
County Attorney
Januar~ 4, 1988
BILL TOt
The News Tribune
Legal
St. Luole County Attorney
2300 Virginia Avenue, Room 106
Ft. Pierce, FL 33482
Board of County Commissioners
2300 Virginia Avenue, Room 104
Ft. Pleroe, FL 33482
Copies to:
County Administrator
Clerk of the Court
Sheriff
Planning A~inis%rator
Clerk's Secretary
ORDINANCE NO.
(Formerly No. 87-3)
AH ORDINANCE AHE~DINO CHAPTER 1-3 "ALCOHOLIC
BEVERAGES** OF THE CODE OF ORDINANCES OF ST.
LUCIE COUNTY, FLORIDA; THEREBY PROVIDING FOR
LEGISLATIVE AUTHORIZATION, FIND/NOS OF FACT
AND DEFINXTZOHS~ PROVXDZNO FURTHER. FOR THE
PROHXBXTXON OF CERTAIN ACTXV/TXES RKLATXHG TO
THE DISPLAY OR DEPICTION O~ SPECXFXED
ANATOMICAL 'AREAS OR SPEC/F~ED SEXUAL
ACTIVITIES AT ESTABLISHHEHTS AT MHXCH
ALCOHOLIC BEVERAGES ARE PRESEHT, OR ARE
AVAILABLE TO BE, SOLD, DISPENSED, COHSUMKD,
POSSESSED OR OFFERED FOR SALE OR COHSUMPT~OH
OM THE PRE~ISESf PROVIDING FOR PROOF AND
PENALT/ES; PROVIDING FOR COMFLZCT/MO
PROVISIONS, SEVERABILITY, APPLICABILITY AND
FILING #ZTH THE DEPARTHEHT OF STATEI
PROV/DINO FOR AN EFFECTIVE DATE, ADOPTXOHAHD
CODIF~CATXOH.
WHEREAS, tho Board of County Commlsslonoro of St. Lucia
Court%y, Florida, has determined to adopt this ord~nanoo for tho
· oauon8 so~ ou~ ~n Sections 1-3-10 and 1-3-11 of Se or~inunco.
NO~, THEREFORE, BE ZT ORDAINED BY THE BOARD OF COUNTY
COWHZSSIOHERS OF ST. LUCIE COUNTY, FLOR/DA, THAT~
PART A.
CHAPTER 1-3 "ALCOHOLIC BEVERAGES' OF *THE CODE OF
ORDXNANCES OF ST. LUCXE COUNTY, FLORXDA, Z8 HEREBY
AMENDED A8 FOLLOMS~
Section 1-3-10. Lepislative Authorizat~on.
This ordinance is enacted in tho interest of ~he ppblfc
health, peace, sa£etv, and oeneral ~el~are of the citizens and
inhabitants of St. Lucie County. Florida. Pursuant to Arti~l~
VIII. Section ._l(f). of the Florida Constitution and SqG~to~
~25,01¢1)(0) and (w) of the Florida Statutes (1985). apo under
the authority of the County to regulate the sale and consumption
of,alcoholic beverages. Dursyant to the Twent¥-First..Amen~mgnt to
G~ugh passages are deleted.
added.
~pderltned passages are
the Constitution of the United States. New York State Liouor
Authority v. Ballanca. 452 U. S. 714 ~19811~ City of Davton~
Beach v. Del Patois. 476 So.2d 197 ~Fls. 1985~
Bection 1-3-11. Fln~lnaa of Fact.
The Board of County Commissioners 'of St. Lucia County.
Florida. finds th~t~
Lucia County. Florida. a trend toward the diaolav or depiction of
specified anatomical erase or soecified sexual auto
establishments eub4ect heretg, :;';"'::."::: "
fbi ~e diBBler or deB~o~ o~ soeO~ed a~atm~o~X-arel-
or eoea~ed sexual so~e ~e adverse to ~he ~bllaVs ~ntereet
2he ~alitv of life. tone of o~eroe and ~otal :'~t~l~ :
environment In St. Lucia ~un~.
{c) The disolav or deolotton of s~lfied anat'!eel areas
or soecified anatomical areas or eoecifled sexual ac~e fre~entl~
occurs in co~ercial establie~ents either sallies or
consumotion of alcoholio beveraOes on the
(dl There is a direct relationshio between the consumotioo
of alcoholic bevetaqe~..and the disolav or deoiction of
anatomical areas or soecified sexual acts mentioned above.
orohiblted hereunder, and more ~ullv described hereinafter and an
increase in criminal activities, and disturb~nces of the
an~ oood o~der of the community, and the co~cur~encv of
activities is hazardous to the health and safety of those
tn attendance, and tends to deoreciat~ the value off
Gtrv~gh passages ara deleted.
added.
'2--
Underlined passages are
orooertv and harm the economic welfare of the community as s
le~ The combination of the sale or consumntion of alcoholic
beveraoss with the disclsv or deoiction of snecified anatomical
areas or snecifisd sexual acts is ad'eras to thm ~uhlic".
Interest in the oualitv of life. tone of commerce and total
co~uoitv environment in St. Lucia Courttv.
Cf} In order to nrseerve the oublio neece and coed order.
end to safeouard the health, safety, and welfare of the co~nt!f
and citizens thereof, it is necessary and advisable to reaulate,' ',!~.'~ ·
the disol&V or deniCtion of ~oecl£ied anatomical "s[~ae or'
alcoholic beveracss are. or ars available to be sold or oonsu~e~, .
¢~ In order to ~reeerve the ~ublic ceace and 9mod 0rger,
and to safeguard the health, sa£etv, and wel£are of the count? .'.
and citizens thereof, it is necesarv and advisable to regul&te
and restrict the conduct of owners, onerators, scents, emnloveee,
entertainers, nerformers, matrons, snectators and nsrsons on the
nremises o£ the commercial establishments sub~sct hereto.
$~C~lnn 1-~-12, lnten~ O~ Ordinance,
The intent of the Board of County Commissioners of St. Lucia
County. Florida. in ~ovtin~.this ordinance is:
(a~ To reoulate the disolav or deniction of sosciilad
anatomical areas or specified sexual activities, as delined, in
commercial establishments at ~hich alcoholic beverages, beer or
wine is, or. is ~v~ileb!o ~o be. sold, disoensed or ¢onsume~;
Strvek~gh passages are deleted.
added.
'3--
passages are
Cb) To reoulate the nerformance of straddle destino, aa
da£1ned, in commercial establishments at which alcoholic
bavaraomm, bear or w/nm is. or is available ko be~' sold.
dlacsnsed or consumed~ and
'(C) ?o reOulate c~nduct and activities which encoursoe the
display or deniction of s~s~lfied anatomical areas or
lO,ual activitiOs in commercial establishments at which alcoholic
bevaraoes, bear or wine is. or is available to
dla~ansed or consumed.
Section .1-3-13. Definitions~
The followin0 definitions shall anolv in this
Cs! 'Alcoholic bevaraOe' means all bevaraoes con~a~n~nq
Cb~ 'Board~ means the Board of Coun%v Commissioners .Of St.
Lucia County. F~orida.
(c) 'Commercial' means ouerated for ueounisrv
shall be presumed for any establishment which has received an
occupational license. For purposes of this ordi2ance, oue~et~?
for Decuniar~ oain shall not de,end on ac2ual profit or loss.
rd) 'Establishment' moans a ~hvsical plant or location or
tho commercial activities or o~erotions heino co,ducted, or both
tooether, as t~o context of this ordinance may results.
Ce) 'Person~ means tnd~viduals, f~rms, ossoc~attons. ¶o~nt
ventures, partnerships, e$~pte~, ~rusts, busi~e$~ ~ru~s,
G~ruek---~4~ough passages are deloted.
added.
Underlined passages sro
~ndicates. fiduciaries, cor~orationa, oovernment officials.
aovernment entities and ell other orouoe or combinations.
"Premises' means a nhvsical clans or location which ~e
enclosed by walls or eno other enolosin9 structural davies, or
which is covered by' s sincle roof or with s sinOle shera~
entrance, if not severed bv a sinols roof. and shall include any
structure, structures or land. or contiguous structures or lend.
within 500 feat of the ohvaicel Diane or location where such
structures or land end the ohvsteal ulent or looatio~ are.under
common ownershXD. control or ~oss~sSigN&
human
human ~ubic re~lon~
human female breasts et directly '
or
areola. ?hie nrohibition shall include the
lower Dottles of the female breast but shall no2 be
lntarorstad 'to include anv ~ortion of the eleeVs~a
of the breast exhibited by a dress, blouse.
leotard, bathino suit. o~ other westina anoaral;
orovidad the areola is ~ot ac axDooad.
human male aenitala in a disc~rnible tu~cid st~,
even ti comoletelv and oo~auelv covereO~
(e) human buttocks.
(h) "Soecified Sexual Activities" means:
human qenitals in a stats of sexual stimulation.
arousal or tumescence:
acts of human adamutism. .analinaus. bestiality.
buggerv, cunnilingus, cooroohauv, cooroohllia.
fellatio, flaaellation, frottage, hvDheohilia.
~_~sochiam. masturbation, sadism, sadomasochism.
~exu~l int~r_ilour~_e_, sodomy. ~r ~ola~nia:
E,-~Je~~gh passages are deleted.
added.
Underlined passages are
¢31 fondlin9 or other erotic touchino of human
g~nitals, cubic region, buttocks, anus or female
~raests~
¢41 excretory functions as hart of or in
~th any of the ectivitise set forth in ¢11 throuoh
.?£acedanca' means the use by an emolovee, whether clothed or'not.
o£ any mart of his or her body to massaoe, rub. stroke, kneed.
caress or fondle the oenital or cubic area of · natron, while on
the mremises, or the mlacino o! the oenital or cubic ares 8f an
smmlovae in contact with the face of a matron, vhil~n"tha
~egtiop I-1-14. prohibition of Certain {ctivitiaa.
¢a1 It shsXl be unlawful for any sermon, while on the:
oremi~es of ' e commerciel establishment at which
beveraoes are mresent, or e~e available to be. sold.
consumed, ooeeessed or offered for sale or consunotion on iht
premises, to expose soecified anatomical areas while
(bi It shall be unlawful for any serene swains, maintaininq.
operation or leesino any ¢omaar¢ial establlshm~g~ ~t W~ich
alcoholic beverages are vresent, or are ~vail~bl~ to be.. SolO.
disoensed, consuaad, possessed or offer~ for sale or consumo~ion
vn the or,mists tO knowinolv, or wi~h r~ason to know. suffer.
permit or allow any person on the stemless to violate sub-
9_arsgrsDh Ca) Of thi~ $~tton.
6~-~uek--4~gh passages are deleted.
added.
Onderltned passages are
(c) Xt shall be unlawful for any sermon, while on. ihs
premises of a commercial establishment at which alcoholia
beveraoas are oreeant, or are available to be. sold. diananasd.
oonsumed, ooasasaed or offered for sale or consumerism on
oremiaes to enqoae in or simulate any eoecified, sexual
[d! It shall be unlawful for any oereon, while on the
oraniaas of a oonunercial establishment at which alcoholia
bevaraoss ara nresent, or are available to be. sold. d~moanjOd.
consumed, ooaeeaaad or offered for sale or oonsumatX~ nn~t~e ,
oremilea, to na~tioloete ~n a e~raddle denon, an ~hat' ~eXi.in
defined herein.
(e) l~ shall be unlawful for any sateen ~Xno. m~aini~.
oPera,inO oF leasina a commercial es~ablXe~en~ 8~ which
alcoholio beveraoes are present, or are available ~ be. oold.
d~soensed, consumed. ~esessed or offered for sale or ~nsumo~lon
on ~ho premises. ~o k~wXnolv or wX~h reason ~o~ k~. suffer.
oe~X~ o~ allow any Datsun ~o enoaoe Xo or simulate any
sexual activities on ~he
fl) It shall be unlawful for any Datsun own~no, maintaining.
ooerat~no o~ leas~nq a commercial establ~shmen~ at which
alcoholic beve~aoes a~e o~esen~, o~ available ~o be. sold.
dispensed, consumed, possessed or offered for sale or consumption
Dn the premises, to knowinolv or wi~h reason to kngw. sgffer.
permit or allow any person %o Dartioloate in a straddle dance on
the premises, as that term is defined berlin,
St~Fuek---4~h~ugh passages are deleted.
added.
--7--
Underline passages are
(~) It shall be unlawful for any carson, while on th~
premtass o} s commercial establishmsnt at which alcoholic
baveraoss erg. or arb available to be. sold. dispensed, coneumid.
nosssssed or o££ered for Bale or consumption on the Premises,
to use or be uresent IA srsas partitioned or screened £rom uubli~
view that ars dasloned to be occupied tooether or alone
parson or neraons on the nramises of such establishment ,Zor the.'
ouroose of enoaoino in specified sexual activities or..
unlmvtul apr any person ~o ex~se soeoltlm~ mnmtmioml areas In
kno~ an rest r~mn. However. noeoified snaffles1 arias ~al~ .
. be ex~ned or dtgolaved only In conneo~lon__.vl~h
{al In ell a~ions. ~lvll or ~riminal. ~or violation o~ thin
ordinance, vroof ~hat the beveraOe was an alcoholl~ beveraoe, may
be made by any carson who. bv exoerience in the
or use of alcoholic beveraaes, or who by taste, smell or
of such liquids has knowledoe oi the oresen~e o[ ~h8 aleoholl~
content thereof o~ the intoxtcatino effect thereof, may
as %o his or her opinion whether such ~evgra~e
bevePaoe.
Stru=k through passages are deleted.
added.
Underlined passages are
(b) The ~raeence o£ alcoholic content o! any bevereoe, may
ba shown bv hvdrometer or oravltv test mede In or away £rom the
oresenee o~ the £aat £1nder bv any carson ~ho has knowledoe o~
the use of said instrument.
Bsction 1-3-16. Penalties.
(si ?he Board may brino suit to restrain, enjoin or
othe~wiee orevent the violation of this ordinanoe in the
Court of et. Luele County. Florida.
(bt Vloletion of this ordinencs is a mied~msenor
Section 125.69. Florida Statutes. end le ~unieheble u~de~'~ee~
section bv ~morisonment for uo to'sixty ¢60t dave or
to five hundred end 0/100 dollars (9500.00}. or b~th such
lmnriaonment end fine. '
fo) l£ the owner, operator, lessor, lessee, maqoaer.
emolover or any other ~ereon nartioloatino in the maintenenee
ooeratl°n of e 'commercial establishment at which elcoholia
bevereoes are. or are available to be. sold. dteuenaed, oon~v~.d.
oosseesed or offered for sale or consumntion on the oremieea
violates this ordinance, the St. Lucia County Occuoational
License issued to such violator for said establishment may be
revoked by action of the Board at a oubltc hearths U~gn due
notice.
rd) If et any t/ms the license for the commercial
establtshmen~ ts revoked oursuan~ to subsection ¢c) above, at
least one ¢1) year shall elapse before another license may be
;L~u~d for ~_b~ s~me ~pb~t~hm~n~. ~p_C_h_~ltcense ma? bp issued
only after a nubltc h~ovtno hold before the Board.
~t-z~,eh--~hro~Bh passages ara deleted. Underlined passages are
added.
PART B. CONFLICTINO PROVIaZONa.
unincorporated areas of St. Lucia County, end adopted prior to
Jsnuar~ l, 1969, County ordinances and C~unty resolutions,
parts thereof, in conflict with this ordinance ars hereby
superseded by this ordinance to the extent of such
PART C. 8KVERABXLXTY.
zf any portion of this ordinance is for any reason held or
declarod to bo unoonst~tutional, ~nopsrat~ve, or,
'holding shall ~2 affect tho' tamPOning
ord~nenco. If th~o oEd~n~co or any pr~olon thor~f ~all bo
held to bo Anappl~cablo to any person, proPort~
..
such holding shall' not affect ~t8 8ppl~oab~l~ to .~
person, p~opo~ty, or c~o~gtance.
P~T D. APPLI~ILITY OF
Thio ordinance shall bo applicable ~oug~ut tho
unincorporated area of St. Lucre County.
P~RT E. FXL~NO ~TH THE DEP~RTH~T OF STATE.
The Clerk ~s hereby d~rec2ed for2hw~2h ~o send a
copy of ~h~s ordinance 2o the Bureau of A~n~st~a~ve Code and
~aws, Department of Sta~e, Tho Cap~2ol, Tallahassoe, Florida,
32304.
P~RT F. EFFECTIVE D~TE.
This ordinance shall ~ake e~fec2 on , 1987.
S-,l~s~t~gh passages are deleted.
added.
-10-
passages are
PART O. ADOPTION,
A£tor motion end eocond, the vote on thee ord~nonce wee e8
£ollowo~
Chairman 3ack Kr~eger
Vice-Chairman Havert L. Fenn
XX
XX
Commtee~oner R, Dele Tre£elner
XX
Commioa~onor 3~m H~nix
Commiseioner 3udy Culpepper ]iX
PART H. CODZFZCATION.
Provio4on8 of thio ordinance cheil bo
~do of Ordinances of S~. Lucre County, Florida, ~d
'ordin~co' mar bo changed tO
8pp~p=~ato aCEd, ~d the ooctAono.
renumbered or =olo2toEod to 8ccompl~eh ouch Sntent~on; pr~ded,
however, that Parts B though H shall not bo cod~f~ad~
PASSED ~D D~Y ~OPTED
90~ OF CO~Y C0~I~810~
ATTEST: ST. LUCIE CO~, FLORIDA
By.
CLEItK CH~Y.R.H~U~
APPROVED AS TO FORH AND
CORRECTNESS*
COU~T¥ ~TTORNEY
~½ passages are deleted.
added.
-11-
~ pe88egss ers
CLUSTER (Continued)
SPECIAL REGULATIONS.
1. Access.
(See Section 500.20!
Offstreet Parking. Each townhouse unit shall
require a minimum of two (2) parking spaces.
3. Offstreet Loading.
(See Section 500.19)
4, Parking, storing, keeping of commercial and
:recreational vehicles.
(See Section $O0.18)
5. Landscaping.
(see Palm Beach County Landscaping Ordinance)
6. Fences and Walls.
(See Section. 500.15)
?, Performance Standards.
(See Section 500.~6)
8. Signs.
(See Palm Beach County Sign Ordinance)
ADULT ENTERTAINMENT ESTABLISHMENT (Hl78-22) ,~
PURPOSE AND INTENT,
Thio section lo intended to provide for the prop~ '.
location of adult entertainment establishuento
General Commercial Zoning District to protect the
integrity of ad,scent neighborhoods, schools, houses of
wot,hip and other commerolal ent~rprises. Proper
separation of adult entertainment establishments
prevents the creation of "skid-row" areas in the County
which results from the concentration of these
establishments and their patrons.
LOCATION. '
t
Ho adult entertainment establishment shall be located
closer than one-half (1/2) mile from any other adult
entertainment establishment measured from lot boundary
to lot boundary, and no closer than 1,000 feet in any
direction from the lot boundary of any house of worship
or school existing or approved at the time the adult
entertail~ment establishment applies for a special
exception. Any subsequent approval of a place of
worship or school within these limits shall not change
Lhe status of the adult entertainment establishment to
a nonconforming status.
238
2
&
7
) ('1(' oRD .AHc ,8-. ',
OF PALH BEACH COUNTY, ORDINA~qCE NO. 73-2,
AS A~tlDED~ C~ATIBiO REOULATIONS GOVERNIH(J
THE LOCATION OF ADULT EHTERTAII~NT ESTABLISH-
14EHTSI AHENDINO BECTIQH 200.2, DEFINITIOflBI
AI~ENDINO SUBSECTION 6OB.C, SPECIAL EXCEPTIONS
SUBJECT TO CO~HISSIOH APPROVAL ICG DISTltlCTJ 8
CREATING SECTION 500.31. ADULT ENTERTAIt~mNT
ESTABLISIII~ENTSI PROVIDIN~ FOR SEVEItABILITYa
PROVIDIHG FOR INCLUSION IN CODE; AND. PROVIDINO
FOR AH EFFECTIVE DATE.
'8
10
11
12
13
~:' 17
18
19
20
21
22
23
25
26
27
28
30
31
32
33
35
WHEREAS, a large Stoup of Palm Beach County residents
informed the Board of County Co,nissioners of potentia! concen-
tration of adult entertainment businesses in Palm Beech County
to the detriment of nearby residentiat helshborhoods, schools,
and houses of uor~hipl and
WHI~REAS, to protact.'the health,)safsty and val£ara
the county residents and under the authority of Section 125.O1(1)
Floridt Statutes..tha Board of County Commissioners hbo authoriaac~
the enactuant?f zoninS controls on adult entartainmonC Ictivitiss
to diffuse any deleterious affects of tho concentraCion~of, thesa
businesses! ,nd ',::',i~.' ~,, ~,
MHEREAS, the adbpt~on of the,e controls .is':"the-ULn~uuu
necessary to prote~t the county's interests ~lthout unduly
ferries with the fishes of adult entertainment business operators
to conduct business!
NOg, THEREFORE, BE ~T OltDAI~ED BY THE BOARD OF COUNTY
C~ISSIONERS OF PALH BEACH COUNTr, FLORIDA, &a follovst
S~ctiou 1. Section 200.2 "Definitions", DE O~d£nance
No. 73-2; as amended, is amended by addle8 the following in
alphabetical order:
ADULT ENTERTAIt~NT ESTABLIS}~HT~ A commercial
ente£prise which predominately limits admission
to "adults o~1~ due to the sexual nature of its
merchandise or entertainment. Such eetablishmen~s
shall include adult bookstores, adult theaters, and
adult lounges with nude or 8em£-nude entertaine~s or
employees.
2
3
&
S
8
9
10
12
/
Sec . Subsection 608.C, ~...dl Exceptions
Subject to Commission Approval", of Ordinance Ilo. 73-2, es
amended, le amended to include; in alphabetical °rdar, the
(oLlo~tn8, use I
ADULT EHTEltTAIHI~.NT £STABLISHI~IIT (See Section 500.31.)
Section 3. Section 500.31 of Ordinance 73-2, es amended
is created to readl
500.31 ADULT ENTERTAII~IEHT ESTABLISilltENT.
A. PURPOSE AND IHTEHT.
This section ia intended to provide for the
toper location of adult entertainment estab-
ishmaels in the General Comercial Zonin$
District to protect the lntest£ty o[ &dJacent
neighborhoods, schools, houses of ~orship and
other connetelal enterprises. Proper aaoaration
of adult entertainment establishments prevents
the creation of "skid-rOw" trade in the CountF
~hich redults from the concentration of these
establishments and their patrons. ,
LOCATION.
Bo adult entertainment establishment lhall he
located closer then one-half (1/2) mile from any
other adult entertainment establishment measured
from lot boundary to lot boundary, and no
than 1,000 feet in any direction from the
boundary/ o~ any ~ousl of votehip or schoot.'extsttn8
or approved at the ti~e the adult entar~alunenC
eetablishumnt applies for
Any subsequent approval
school utthin these limits shall not ehan{e
;tatue o~ the adolt ente;cain~nt
to a non-con;o~n~ etatue.
PRO~E~ ~E~LOP~ ~GU~TION~.
Adul~ nn~nr~atnmen~ establishments shall
developed aeeording to the property development
and special regulations of the CO Ceneral Con~percial
Zonina District. AL1 buttdtn~ openings, marries,
and windows shall be located, coveredj or screened
to prevent eeeinS into the intat£or from any pubtl~
or semi=public area.
FENCIH~ AND SCREENIH~.
1~hen deemed necessary by the Commission to protect
the general public, ~alls or fences of us to 6 fee~
in height may be required. The Coc~issi~n may also
require screening of at least 75% opaqueness to
protect neighboring proper~y from po~ential loss of
use or diminishment of land value or use.
Section I. Severability. If any section, paragraph.
sentence, clause, phrase, or word of this ordinance is found
unconstitutional, inoperative or Void, such holding shall no~
2
$
6
7
8
lO
12
19
20
21
22
23
2&
23
26
27
28
29
30
3!
') re.mLnd~'i,r of thio ordinance
affect the · '
Section $. Inclusion'La the Code. The provLsLon! of
this ordinance shell become end be made . pert of the Code of
Laws end Ordinances of Palm Bench County, Fl.ride. ~he sections
of chis ordinance may be renumbered or relettered to eccomplish
such, and the word "ordinance'* may be chansed to "section'*,
'article', or other appropriate word.
Section 6. Effective Date. The provisions of thio
ordinance shall become effective upon receipt of ackno~ledrmenc
by.the Department of State, State of Florida.
A~PItOYED AI~O AI)OPTE~ by the Board of County CounLoeS. oners
of ta~u Beach Co~y, FL.ride, on ~he e~ day of
tgi.
FA~I BEACH CO~, F~RZDA, BY ZTS
Acknovled~ment by the Department of State of the Stele
of Florida, on thio, the 26th day of October i *, 19 8
EFFECTIVE DATEr Aekno~ledsment from the Departmen~
of State received on the 3(~h day 02 October :":'~" ",
19 ,,?8 , at 1:15 , p~ H. and flied in the O~fioe o~ the
Clerk of the Board of County Counissioners of Palm Beech County,
Fa.ride,,
APPROVED AS TO FORH AND
LECAL SUFFICIENCY
- Counl:y Atcozn~y
COUNTY OF PALM BEACII, STATE Gl~ FLORIDA
CLEEK Gl~ CIECUIT COURT
!, John O. Dunkle, Clerk of the Fifteenth Judicial Circuit Court
Gl the State o! Florida nnd Clerk o! tho Board o! County Commissioners, do
hereby certlly that the above and foregoing Is a t'rue nnd correct copy of
Ordinance I~o. 78-22 amending the Zoning Code Gl.Palm Beach County, Ordinance
No. 73-2. as amended. " ·
Given under my hand and the Seal or the
Board of Oounty Oomml~sloners of Palm
BenCh Oounty, Florida, 'at the Oounty
O~urthouse, West Palm Beach, Florida,
this tim 30th day of Oetotmr · A.D., 1978
JOHN B. 13~JNKLE, Clerk of
CqrcuJt Sourt and CI~ of the
.,,"//_j. r ui -
~" ComDtroller/DeDuty Cle~:k
SECTION 4
We have learned from talking with personnel from other
Counties, that when new Ordinances were passed, some bars
found ways to circumvent them.
For example, Hillsborough County passed an Ordinance
preventing alcohol to be served in areas where topless dancing
was Conducted. Bar owners then hung curtains, which divided a
room into two (2) areas. One(l) area was for the dancers and
the other "separate" room was for serving alcoholic beverages.
County officials then had to amend their ordinance to cover the
"entire premise".
In other areas where Ordinances prevented topless dancing .
in bars (where alcohol was being sold), the bars became private
"bottle clu6s" Technically, no longer selling ai6Ohoiic
beverages, but selling "set-ups" (mixes/soda) while"the patrOnS',:?
supplies his/her own alcoholic beverages. Conversations with
the Florida Division of Alcoholic Beverages and Tobacco revealed
that there are no State laws to govern "bottle clubs" and thereby
they have no jurisdiction over same.
St. Lucie County officials advised that an impact study
of the property values, to show depreciation of the properties
surrounding/adjoining the existing topless bars, had to be
submitted with the proposed ordinances. These studies are part
of the process of getting new Ordinances passed. The St. Lucie
County Attorney stated that the studies do not necessarily have
to be within the area in question, only that three (3) separate
studies must be completed/obtained.
SECTION 4 PAGE 2
The studies used by St. Lucie County follow:
L. THOMAS QIBLIN
MARK T. NIU~TIAN
ROmlr RT L.
OR~OORY T. ~TEWART
dOHN R. ~TOK~S
ART WIEDINOER
NABORS, GIBLIN, ST£F'F'£NS & NICK£R$ON, P.A.
ATTORNE..YS AT LAW
I0~ ~,OUTH MONROE STREET
TALLAHASsFIr, FLORIDA 3:~301
TELEPHONE {gO4) ~.~.4-4070
TEL£COPY ~O4) ~2~1- 4073
LINCOLN POINT£. SUITE 1060
aSO~ ROCKY I=~INT DRIVE:
ell N.W. ~0TM STREET, ~UITE
GAIN E~VILLE. FLORIDA
Daniel McIntyre
County Attorney
St. Lucie 'County
2300 Virginia Avenue
Room 106
Ft. Pierce,
ST. LUCIE ~,~U~;TT; FLORIDA
FL 33482
':'~".t ,U3,.-" - ,"~. ' ' ~
Re: AdUlt Entertainment Ordinance ::' ;
'Dear Dan:
-,' ~', ~,~ ',;j~ ~r"-.' - ~--:f ~.~,? ~ ~ ,,, . , . ~ .... ~.~ j~,... ._~ ...... ,
. , / '~ " " "/~
E~closed:.please ftn~:.'a ~ary prepared,, by ~Y~.~Cle~k :of the'.
Z' beZteve [he 'sU~ar~ive~ a,gooa tev~e.
~ea[u=es o~ each s~ud2 ~hie~a~ be ~eli~ upon ~n'
. , ~. Stewart'~'''' · ., ,..
GTS: pa
Enclosure
TO~
FROM:
D~TE:
RE:
MEMORANDUM
GREG STEWART
LIBBY WEST
MAY 13, 1987
ST. LUCIE COUNTY ADULT ENTERTAINMENT ORDINANCE
I. I~troduction to Adult Business Studies
Three studies are summarized here: Austin, Los Angeles, and
Indianapolis. Each city used almost identical methods of
conducting the studies. Four to six "study areas" were chosen
which contained one or more adult businesses. A corresponding
"control area" was chosen which was in Close proximity to its
"study area" and had similar zoning and.~l~opuIation c~akau~eristids
The effects of the adult businesses fell i~to,,.,two major
categories: ,-
A. Incidence of Crime
B. Real Estate Values
The businesses negatively impacted both categories. However,
crime appears to be the most empirically supported.
II.
Austin, Texas -- Adverse Effects of Adult Businesses
A. Incidence of Crime
This stUdy divided crime rate calculations into two groups:
(1) ."Part I Crime.Rates," including murder, sexual
assault, aggravated robbery, attempted murder, burglary, and auto
theft.
(2) ."$ex-Rela~ed Crime Rates." including sex'Ual
assault, prostitution, public lewdness, and sexual abuse of children.
The study did not show any clear patterns in Part I
Crime Rates in the study areas as compared to those in the
control areas.
A definite pattern was reflected in the sex-related
crime rates. Sex-related crime rates in the study areas ranged
from nearly two to almost five times higher than the City would
average. The study also showed a positive correlation between
these rates and the number of adult businesses in an area. For
example, study areas 1 and 2 each contained two adult businesses,
while 3 and 4 each contained only one. The sex-related crime
rates were 66% higher in areas i and 2 than in 3 and 4.
This study was conducted by sendih~'ques.t[fonnaires to
real estate' appraisers and lenders in the area:' ,~.'Seventy percent'
of the respondents indicated that adul~ businesses have a .
negative effect on property values. This negative effect is
different, though, on residential areas than it is on commercial
areas. It also decreases as the distance increases.
(1) Residential Areas
Eighty-eight percent of the respondents felt that
an adult business would have a negative impact on property
located within one block. When the distance between the adult
business and residential property increases to three blocks (100
ft.), only 59% of the respondents felt that the property would
decline in value. The respondents' predominant reasons for this
decline were concern for children, movement toward a transient
neighborhood, and fewer "willing" mortgage underwriters.
(2) Commercial Areas
Only 69% of the respondents felt that the value of
the commercial property within one block would decline. And, as
the distance was increased to three blocks, only 41% felt that
there would be a decrease in the value.
The.final, significant finding was that the negativ~
impa~t was not as great where there was a sinqie ad'it' 'business,
rather than a,concentration of businesses. '~ '~ :"; "!'~' '
II. Los Angeles, California: Adverse Effects of Ad~t ~..
Businesses ~ ..~:.~:.~..~,.~ ;.~ .... ..,
A.
of
~rime
'~,c~ence ' ~',, '~,
The Los Angeles Police Department study fo.u~, ~ a, positive
correlation between crime and location proximity to an adult
business. The study was made of the Hollywood area since
it contains a high concentration of the establishments. The
study compared crime rates of 1969 through 1975 because the
business appeared and proliferated in Hollywood during the period
from 11 to 88 such establishments.
Part I Crime Rates (same as in Austin Study) increased
7.6%, while the City increased only 4.2%. However, the significant
3
increase was in arrests made. for prostitution. They increased
372.3%, while the City increased 24.5%.
Along with the increased crime rates, the police deployment
in Hollywood rose by 30.6% and citywide by 'only'~21.2%~' '
B. Real Estate Values
This study was conducted by sending out questionnaires
to real estate representatives and appraisers similar to the
Austin Study. The respondents overwhelmingly agreed that adult
businesses have a negative impact on property values.
However, the study also calculated the change in the
assessed value of property located within a 1,000 to 1,800 foot
radius of the businesses. The findings we~e)'inconclusive.
Although the study areas aenerallv'te~ded
degree than the control areas, in several3c0mp~ris°ns th
area's value nc a a much lar r cen
· ~ .~ t,1 .... ~.., '..'-.'_ . ..
control area~s value. ' .... "~"~ "
The Los Angeles Planning Department felt that the evidence--~'
was insufficient to support a' conclusion' t~'~e ~dUlt~"~' 'b~i~ses'
were the primary cause of the patterns' of Change~.
C. Neiqhborhood Concerns
Deleted: Major concerns were for children, women, old
people and aesthetics.
IV.
Indianapolis, Indiana -- Adverse Effects of Adult
Bus'nes~
A. ~ncidence of Crime
This study compared six study areas to six control areas;
two zoned residential, two commercial and two mixed.
First, the study compared major crime rates (same as
"Part I Crime Rates" in Austin Study) within the areas. Within
the study areas, residents were exposed to a crime rate that was
23% higher than the control area and 46% higher than Indianapolis
as a whole. The interesting (and probably unexpected) finding
under this category was that the actual impact on the residents
(crime per 10,000 of population) was 74% higher in the ~
control areas than in the commercial study areas. The impact was
almost equivalent in the residential areas. More .anticipated,
the.,.impact.was 127% higher in the "mixed" .study areas than in the
"mixed" control areas. The study gave no e~lanation, for these
results.
Second, the study compared sex-related crimes· in the
areas. The sex-related crime rate was 77% higher in ~e study
areas than in the control areas. Unlike the impact of major
crimes on areas, the sex-related crime rate was unE~o~ly higher
in all land use.categories of the study areas than in the control
areas. As in the previous two studies, there is a significant,
positive correlation between adult businesses in an area and
the frequency of sex-related crimes.
Finally, crimes occurred much more frequently in residential
areas with one or more adult businesses than in commercial areas
with adult businesses. Major crimes occurred 56% more frequently.
Sex-related crimes occurred four times more frequently.
B. Real Estate Values
By comparing real estate listinqs, the study fOund that
the residential housing base was substantially higher in the
study areas than in the control areas. However, the property
values in the control areas appreciated at 24.7%, while in the
study areas the values appreciated at only a rate of 8.7%. The
study area also had abnormally high real estate activity. The
activity increased in the study area by 4%, but fell by 80% in
the control area.
The study also surveyed real estate appraisers. The
responses were very similar to those received in the Austin Study.
(1) An overwhelming majority of respondents agreed
~hat .adult businesses negatively effect propertY..~v~lues when the
business is within one block. The effect is greater on residential
property than on commercial property.
(2) When the distance is increased'to three blocks,
the majority of the respondents felt that there was no impact on'.
property values.
(3) The reasons given for the decrease in property
values were that the businesses attract "undesirables," they
"create a bad image of the area," and they offend prevailing
community attitudes.
944
670 FEDERAL ItEPOilTEIL 2d SERIES
Appeal from thc Unitc~l States District
Court for the Middle District of Florida.
Before MORGAN, HILL and KRAV-
TICH, Circuit Judges.
LEWIS IL MORGAN, Circuit Judge:
On this appeal we are presented with a
quest,on of the ~actal vaJldl{L~ of a ~oa
B~aeli~..Flor,ltli binlinance proh,bit, ng nude
and ~i~l-~uite entertainment'in es,alii,sbt
ments~where a~cohoiie 'beverages are s~)ld.
We inltiail~ hote that Llii~
New York S~ate ~quor Aulhority v. Bel-
ian~a, 452 U.S. 714, 101 S.Ct- 2599, 69
L.~I.~! 357 (1981), .upheld a' similar sLuU.,
s~tute on the basis of authority conferred
under the Twenty-first Amendment. Bel.
lan~a doe~ no~, however, re~olve the
before us because Goeoa Be~ch, a munici-
pality lacking ~ny delegated regula~o~ au-
thority under the Twenty-first Amendment
is required to justify the ordinance solely
a legitimate exerei~e of it~ poliee'power.'
L The Twenty-first Amendment relers to the
stat~ the power to regulate the distribution
· nd uae of intoxicating iiquor~. In Board of
County Commis~oner~ o£ Lee County v. De.x.
terhouse, ~48 So.2d 916, 918 (fla.App. lgT?),
afl'd, 3&4 So.2d 449 (fla. 1978), the court held
that the power~ recited In the Twenty.first
Amendment had not been shared with local
~overnments under Florida law except for con-
,roi over hours of operation, locations of busi-
nesses and sanitary regulations for establish-
ments selling alcoholic beverages. Delendants
,her&fore concede that the ordinance was en-
acted exclusively under the munk:ipaltty's po-
lice power and that no authon~t~ could be
drawn from the 'l'wenty-first Amendment.- "
'"~--~t~on~):'-'~h'a~of the Code of Ordi-
nances of the ~ity of Cocoa £ ,ach. Florida. is
amended by adding thereto a new section to be
humored ~--i I and to read as follows:
3-11. Nudity on Premises where 'Alcoholic
Beverages are offered for sa}e.
· {a) It chall be unlawful ~or any person
maintaining, owning, or operating a commer-
cial establishment located within the City of
Cocoa Beach. Florida. at which alcoholic bev-
erages are o~ered ~or sale ~or ¢onsumpUon
on the premises:
(l) To suffer or permit any female person.
while on the premises of said commercial
establishment, to expose to the public view
that area of the human breas: at or below
the areola thereof.
See B;U'ou l..'~ndJng, Lid. r. Watt% 563 F.~l
1172 (5th Cir. 1979). The District Court
thc Mid(lie District of Florida concluded
that the municipality had justified thc inci-
dental burdens on First Amendment righL~
crcatc~l ltv the regulation of nude enterUdn-
men, and upheld the ordinance. For thc
reasons stated below, we affirm.
I
Plaintiff-appellant, Grand Faloon Tavern,
Inc. (hereinafter pluintiff) is a Florida cor-
I~)ration which olmraLes a tavern within the
City of ~)coa Beach, Florida. ~efendanL~-
al)l~lte~ (h~ruinafter (lefendan~) a~ the
Chief of Police for ~a B~eh and the
memle~ of the ~oa Beach City ~mmi~
sion at thc time the complaint w~ filed.
In Decemlmr 1979. the City of ~a
B~ch enac~d an ordinance p~s~ibing the
actual or slmula~d expesu~ of v~ious pri-
va~ l~rL~ or female !)~ in ~blish.
menL~ selling al~holic ~vem~
Beach, FI~, Onlinan~ 6~,(De~
~) To suffer or ~it' any f~le ~.~,
while on the p~mises of ~id ~me~ial
establlshm~t LO employ Iny d~ ~
e~n8 which is inLend~ to give ~e i~ar-
ance of or ~mui&te Su& ~s of
human female b~ as de~H~ ~
section (8)(t).
(3) To suffer or ~it any ~on. while
on the premises of ~id ~mme~a]
]ishment to ex.se to public view his or her
cenitals, ~ubic ar~. buttocks, mnus or anal
cleft or ciesva~e.
(4) To suffer or ~it any ~o~. while
on the p~s~ of ~id ~mme~ial
lishment~t6 employ any device ~ ~v~ng
which is int~ded to Rive ~e a~a~n~ of
or simulate the genRa]s, pubic a~. but-
tucks, anus, anal cle~ or c]eava~e.
(b) It shall be unlawful for any female ~r.
son, while on the premises of a comme~ial
establishment iocate~ ~thin the City of
coa Beach, Florida, a~ whi~ alcoholic ~ve~-
a~es are offered for sale for consumption on
th~ ~rem~ses, ~o ex.use Lo ~oblic view
ar~ of the humah female breast at or below
th~ areola thereoL or to employ any de.ce or
coverin~ which is intended to give the a~
p~arance Or simulate such areas of the le-
maJe breast as desc~d herein.
(c))t shall be unla~ul for any ~e~on,
x~'h~i~ on th~ premises of a co~mercJar e~Lab-
hshment ]oca~ed within the City of C~oa
~ach, FioriOR, at which alcoholic beverages
are of Jered for sale for consumption on the
Gt~,~,LI FALOON. TAVERN, INC. v. WICKER
At the time the ordinance was passed two
establishments, plaintiff's tavern named
"Grand Faloon Tavern" and another called
the "Booby Trap," offered patrons "topless"
dancing as entertainment with alcoholic
beverages as refreshment. It is undisputed
that enactment of the ordinance was pro-
yoked by the distressing situation existing
at the Booby Trap. Police records showed
that, in response to extensive and varied
criminal activity,'~ ~te number of
police calls had to be made to
T.~Z~p.~'~The Gocoa B~~~on
concluded that the separation of nutli~, and
alcoholic beverages would lessen the drain
on the city's ~sburdes by reducing the inci-
dence of their conduct ~t estahlishmenLs
affected by the ordinance. Defendants all-
mit, however, that the number of lmlice
calls to the Grand Faloon was communsu-
rate with many other taverns in .C~coa
Beach that did not offer any form of nude
entertainment
Plaintiff filed suit in United States Dis-
trict Court for the Middle District of Fh)ri-
da seeking injunctive and declaratory relief
under 42 U.S.C. § 1983 and 28 U.S.C.
§ 1343 to prevent enforcement of the ordi-
nance. · Plaintiff challenged the ordinance
on groun~ that it violated the United
glares Constitution's guarantees of frc~
speech and expressiom The argument
made by the plaintiff was essentially that
premises, to expose to public view his or her
genitals, pubic area, buttocks, anus or anal
cleft or cleavage, or to employ any device or
covering which is intended to give the ap-
pearance of or simulate the genitals, pubic
are~, buttocks, anus or anal cleft or cleavage.
(d) Any person who shall violate any pro-
vision of this Section shall be guilty of an
offense against the City punLshabie as pro-
vided in City of C~ Beach Code, Sec. I-8.
Section 2. If any provision of this ordinance,
or its application ,to any person or circumstanc-
es, shall be held invalid, the remainder of the
ordinance, or the application of the provision to
other persons or circumstances, shaU not be
affected.
Secuon $. if the owner, operator, licensee,
lessor, lessee, manager, employee, or an)' other
person participating in the operation of a com-
mercial establishment located within the City
of Cocoa Beach at which alcoholic beverages
are offered for sale for consumption on the
premises shall be convicted of any of the of-
lenses designated in Section 3-Il(a) as set
945
th~' ordinance reached exl)ru..~ion entitled 'to
First Amendment protection, and that the
records failed to l,rovide sufficient justifica-
tion for the resulting burden on constitu-
ti(mai righ L~.
A final hearing was held at which the
only evldcntiury materials before the court
were thc I)arties' lift-trial stipulations, the
parties' pleadings anti a deposition of City
Police Chief Robert Wicker, which was ad-
mitted in evidence as the parties' joint ex-
hihit, bio testimony was presented at the
final hearing. The trial court after hearing
arguments by lath counsel concluded that
the disl)ut, ud o.linance was a valid/~xerei~e
of thc mUnicipality's Imlice power unaer.the~
rationale of Central Hudson Gas & Electric
Q~rp. t'. Public Service Cx~mmission of New
York, 447 U.S. 557, 100 $.Ct. 2343, 65
L. Ed.~I 341 (1980); United States t;'
O'Brien, 391 U.S. 367, 88 $.CL 1673, 20
L.F~l.2xl 672 (1968); ami Young ~. American
Mini Theatres, 427 .U.S. 50, 96 S.Ct. 2440, 49
L.I~12xl 310 (1975). The court found that
"the record reflect[ed] a reasonable basis on
which the city could have found a relation-
ship ietwc~n the policy of the ordinance
and the purposes it seeks to accomplish.",
On appeal, plaintiff primarily challenges
this determination, arguing that the. ord~-
hence has not been shown necessary to
achieve the claimed governmental interesta
forth in Section I hereof, then the City Flrianee
Director shall revoke the occupational lieeo~e
for said establishment after giving a reasonable
notice thereof to the holder of said license and
affording the holder an opportunity to be beard
as to why the revocation should not be issued.
Section 4. This ordinance shall take effect
immediately upon its adoption. ~
3. The offenses occurring in and around the
Boob), Trap included homicide, narcotics, rob-
bery, prostitution, lewdness, larceny, assault.
battery, drunk and disorderly, and solicitation.
In addition, a police department record of po-
lice calls to the Booby Trap included several
references to rapes, prostitution by Booby Trap
employees, and fights between the tavern's pa-
trons.
As part of its initial issue on appeal plaintiff
claims that the trial court found the activ/ties
of appellant's employees to be conduct rather
than expression. Plaintiff argues that this find-
670
bat~, the City Council voted to "instruct the
City Attorney to prepare the strongest pos-
sible ordinance ... to prohibit nude danc-
ing in the ,City of PensaCola." The city
attorney then drafted an ordinance pat-
~,erned after a Cocoa Beach provision which
had been found constitutional by a panel of
this circuit in Grand Faloon Tavern, Inc.
v. Wicker, 670 F.2d 943 (llth Cir.}, carl
denied, 459 U.S. 859, 103 S.Ct. 132, 74
L. Ed.2d lis (1982}. The city attorney also
advised the council members that the facts
of G~and Faloo~ were v~y different :[rom
those before them, since the Cocoa Beach
commissioners -had- been., confronted with
evidence that substantial~imina] activity
took place in topless bars, whereas the
Pensacola Chief of Police had determined
that there was no greater incidence of
crime in topless bars than in any other
place serving alcoholic beverages. The
Council nonetheless passed the ordinance
issue, the Police Department cannot substanti-
ate ti~! problems occur anymore [sic] fre-
quently at topiess bars than they do at non-
topless bars. The question of municipal regu.
lation, in this instaocc, relates to the moral
issue involved, rather than the law enforce-
ment issue.
2. As the plaintiffs point out, the factors involved
in the ctty couneq's deeisionmaklng process are
p~nJcularJy well documented because it was
required by Florida's Government in the Sun.
shine Act, Fla.Sml~mn. § 286.011 (West 1975),
to make its meetin~ public and to make the
minut~ available fo.r?/~'blic inspecfi~..__on..~.~
..... BE IT ORD~tlNED BY THE CITY OF P£NSA.
COLA. FLORIDA.
SECTION I. Purpose.
The purpose of this ordinance is to prohibit
certain acts of commercial exploitation of hu-
man sexuality in commercial establishments
within the City of Pen.~coln where alcoholic
beverages are servel or offered for ~le for
consumption on the premises and to reduce
the likelihood ot~ criminal activity, moral deg-
radation and disturbances o! the peace and
good order of the community which may oc-
cur when such commereia] exploitation is per-
mitted in such places.
SECTION 2. Findings.
The City Council {inds that there is an in-
creasing commercial exploitation of' human
sexuality by owners and operators of com-
mercial establishments within the City o[ Pen-
sacoia where a~coholic beverages are served
or o[[ered for sale for consumption on thc
KRUEGER v. CITY OF PENSACOLA '\ 853
(~te ~s 7~ F.~I ~51 (19SS)
by unanimous vo~ on Janus,, ~, 19~ ~
and adop~d it on i~ second reading on
Februa~, ~, 1983.
Ownem of ~e Rawhide ~unge and o~-
er Wpless dancing es~blishmen~, along
wi~ a numar of dancem, ~en brought
suit challenging ~e ordinance ~ a viola-
tion of ~e fimt amendment fr~ s~ech
clause. At ~ial, ~e city atWmey elici~d
some ~sfimon~] evidence ~at it w~ more
difficult W con~l the crime of "B~rink-
lng" in ~pless ba~ ~an elsewhere. The
dis~ict cou~ found as a fact ~at ~e ordi-
nance f~ered a subs~nfial government
in,rest ~n con~o]ling "B-drinking", and
upheld it on ~at ground.
II.
[1, 2] In evaluating the constitutionality
of Pensacola's topless dancing ordinance,s
premises. Such exploitation t~kes phc~ in
the form of employing or permitting persons
to perform or exhibit their nude or ~emi-nude
bodies to other persons ~s an inducement to
such other persons to purchase alcoholic bev,
e. rages. The direct results of such exploitation
is [sic] criminal activity, moral de~tJon
and disturbances of the peace and $cod or6~
of the community. In addRion, s~ch com-
mercial exploitation of such nude and semi.
nude acts is adverse to thc public's interest in
the quality of llfe, tone of commerce and total
community environment in the City of Penn.
cola.
SECTION 3. Prohibition.
3.1. It shall be unlawful for any person
maintaining, owning or operating · commer.
ciai establishment located within the bound.
aries of the City of Pensacola. Florida, at
which alcoholic beverages are offend for sale
for consumption on the premises:
(A) '~o suffer or permit any female person.
while on the premise~ of said commercial
establishment, to expose to the public view
that area of the human female breast at or
below the top of the areola thereof.
{B) To suffer or permit ~ny female person,
while on the premises of said commercial
establishment, to employ any device or cover.
lng which is intended to give the appe. ar'~ncc
of or simuime such portions of the human
female breast as dcscribexi in Section
(C) 7o suffer or permit any person, while
on the premises of said commercial establish-
ment, to expose to public view his or her
genitals, pubic arc~, buttocks, anus or anal
cleh or cleavage.
SECTION 5
FLORIDA STATE LAWS
Copies of Florida State Statutes are enclosed:
A.' ,Chapter 800 - Lewdness; Indecent Exposure
· B. Chapter 823 - Public Nuisances
C. Chapter 60 - Injunctions
fi CIIAI'IER
: ,,
LEWDN. ESS; INDECENT EXPOSURR
6cellos :
I(X)OI. Unnalural lad lascivious act.
1OO.{}]. ltxpolur! Of Ritual of lane.
100.04. L~wd, lascivious, or Indecen! aHnul! mr eel upon o~ In
pvele~ee Of shiM; Ritual htte~y.
800.02. Unnatural lsd laselrloua
Whoever eom·ltl ·ny unnatural ·nd lascivious ·ct
with another pellon shall be guilty of a misdemeanor of
Ihs second degree, punishable as provided In s. 775.082
st s. 775.083.
· Comp,Oas. Laws 1917, ~
Crow Ilereren~u
Lewd ,nd tilclvh behivlM, lee I 798.01.
Iduil#y dim ,eh MTendeH. ,es J SIT.0II et seq.
~eau! m-u# W-,defin MlvlJele. ow J
$eaul beltery, ow ! ~4.01 I.
It shall be unlawful for arty person to eapose or
eshibit his sexual orpns In any public, pi·ce or o. the
private premises of another, or so near thereto as to be
~een from such private premises. In a vulser or Indecent
manner, or so to exFose or exhibit his person In such
place, or to 6o or be naked In such piece. PtovMed;
;~ever; this section shall not be
Iht exposofe of such miens m the person In any place
provided or set ·part for that purpose. Any person
convicted of a viol·lion hereof shall be guilty of ·
misdemeanor of the first degree, ponlsh·ble as provided
in s. 775.082 or l. 77J.0~3.
I~t'tlvetlo~t
ti~s IS/I. a. TI-lit I 719.
L,w, INI, e. il-Il. I 1.
Comp. Oen. L, us IS17, I ?HI.
I~ev. Oen.Sl.19W, I 9445.
IJw, 1~17, e. ?JMk ! I.
Sexual auitull eouMeJov.vkdm pdvlJel..
800.04. l,~wd, lascivious, ur Indecent assault or act
upon or In presence of childs seuul batlery
Any person who:
(I) lhndles, fondles or makes an assault upon any
child under the age of 16 yetrl in a lewd. lascivious, or
indecent manner;
(2} Commits au act defined ms sexual battery under s.
794.011(IXh) upon any child under Ihe ate of 16 years;
or
(3) Kn, owingly eom·its any lewd or lascivious
Ihs prHence of uny child under the Ate of 16 years
without committing the crime of sexual betlery Is guilty
of u felony of the second degree, punishable as provided
In s. ??S.0eI, s. ??J.093. or s. 77S.064. Neither the
victim's lack of chastity nor the victim's consent h a
defense to the crime prescribed by this section.
CI[APTER 823
PUBLIC NUI~ANC~
Sentlon
121.gL
12~.04.
Nulsance~t penalty.
BulldlnI bonfires.
Animals suffering from disease or pests.
Disposal of Imdle~ of dead animals: penally.
Places declared I nulsanee~ may be abated and
enjoined.
Doors of public buildings lo open outward.
Iceboxes, refrigetilms, deep-freeze inciters, clnthes
washers, clothes dryers, (st ehtlght sells; aban-
donment, discard.
123.08. Iceboxes, refrigerators, deep-freeze lockers, clolhes
washers, cJothes dryers, m' Ilmilar iitllght unltl
abnndoncd of discarded; attractive nuisance.
121.09. Violation of s. 923.07; penally.
I11.10. Place where controlled substances are Illegally kepi,
sold, m ~ declared I Public nuisance.
t2J. ll. Abandoned and derelict visuals; removal; pL'nalty.
12l. ll. Smoking In elevators unlawful; penally.
II].l). Flaees where ob~eene materials ere Illegally kept,
sold, of mad declared t public nuisance, drive-in
Ihealers~ film vhlble from Public IltecU bt Public
places.
1~).14. Plor~da Rllht lo Farm Act.
II].ll. Dogs and eats rele~ed from animal shelters
animal control agencies; Itedlltatkm requirement.
~23.01; ' Iqulsmneeej ' penalty~
All nuisances which tend to nnnoy the communily or
injure the health of the citizens In 8enesnl, m to ~ortupt
Ihe public morul~ are misdemeanors of the
delree~ punishable al provided In s. 775.08.1.
La. I111, t 11-114, II II.
ta*s It/g, e. 7~-..191, ! 41,
ts-~ It/S, e. ?~-24, ! L
"'"""'"'-""1
Comp. Oes. lJws 1~27, I Till,
P. ev.Om..qt. 1920, Ii S624.
RevSI. IIg~, ! 270~.
Rd Fd). 10, 1832, I 41, '
Is~ctmeM! nlm Info/mllicn~ k'l Cdmlnll e,ocedl,e Rule 1,140.
823.0S,' Pieces declared · nulstnee~ may be shored
and enjoined
Wlme~er shall e~ect, ~tnblish, continue, or maintain,
own or lease any building, ~th, tent or place which
tends to annoy the ~mmunlty or Injure the health of
the c~munlty, ~ ~me manifestly injurious to the
morals or mnn~ of the ~ple as d~cd~
823.01, m Bht~ ~ f~ueat~ by the class of ~r~ns
mentlon~ I~ ~ S56.01, ~ any house m place of
tutJon, anisette, Jewdn~s ~ pla~ or bulldi.[ where
[nm~ ~ chan~ nee eflln~d in v~latlon of law or uny
pln~ where any Jaw of the state h vblut~,
d~m~ [o~lt~ d mnintnlninl n nui~ne~ and the build-
JaB, erotic, ~1~ leal or ~h md Ibc furniture,
flxtut~ and ~t~ls are d~lat~ n nuisance. All such
[nln~ m ~m shell ~ a~ld m envied ~ provid~
b~ Itll,· ?L~ I 41.
~ 1914, & ?LII~ I ~
b~ Ifil, & Sl-I, J ti.
f~h~ ~ J ~OI d ~
Ch. 60 INJUNC11ON$
F,S. lgB5
60.01
60.02
60.03
60.04
60.0?
CHAPIER 60
INJUNCIlONS
InJuncllon; agalnsl levy of execution Issued
agelnal another Ihen the plalnllll.
Inltmcfion; against deshucllon of timber and re-
moval el logs.
In~uncllon against removal of moflgaged per-
sonal property.
Injunction: smelles on bond of fiduciaries may
reslraln disposition of principal's properly.
Abelement of nuisances.
Abalemonl of nuisances: enforcemenl,
Assessment of damages after dissolution.
80.01 Inlunctlon; against levy o! execution Issued
agalnal another than the plalntlfl.--When real estate la
levied on, of an allempI Io sell II under any execution or
olhof process Issued Is made, or an attempI to sell II as
Ihs properly el enolher person ts made, chancery couds
have jufladlcUon lo enjoin Ihs sale on Ihs appllcallon el
Ihs owner In possession of Ihs real calais.
IO.0~ Inluncllon; against destruction o! Umber and
removal al leaL--Chancery courts have jurisdiction el
actions by any peraon claiming to own any timbered
lends, of the Umber, of Ihs rlghl !o work faf turpentine
purpeaea the limber on any lands In Ihls Irate, IO enjoin
trespass on the lands by the culling of treel Ihereon, of
the removing al logs Iherehom, of by boxing or scraping
the said trees faf Ihs I~..'pese of making turpentIne, of
by_the removal of turpuntlne Iherefrom.
IRitee~,--i, I, eh. 31t~, 111~;, ~ 14el, 11/~, O~ II I I;, ,. I, eh. ~ I~/~
Nde.--Femm e. I~.al.
60.03 Injunction against removal of mortgaged par-
loam propef~/.--The removal from the stele of any per-
aonal property moflgaged lo secure a debt which has
sol mMumd al Ihs lime of the removal may be enjoined
by any chancery coal wllhin whose lefrlloflal Jufbdlo.
Ilea Ihs 131'operly la localed.
fllMeelr.--RS 14r~; ~, ti20: ~ ll,~; OX. 4lr4: e. IS, ch. Sr.~S4.
Hole..~--Femm L ~4.gl.
60.04 Injunction; sureties on bend of fiduciaries
may restrain dlapolltlon of principal's proPerly.-
When actions are commenced on the bond of any exec-
ulof, admlnlahalof, guardian or huslee, of faf an ac-
counting, Ihs surety on Ihs bond may apply to the courl
· In which Ihs action Is pending, Il In chancery, or II the
action Is al law, Ihen !o any chancery courl having
dicllon, for an InJuncllon reshalnlng any' principal In Ihs
bond hem disposing el hie properly andlrom encumber-
InS or removing I! from Ihs county In which II Is Iocaled
unlll Ihs final dlsposlllon of Ihs action. If II appears on
the application Ihel Ihere Is danger Ihal Ihs pflnclpal
may dispose o! his property before final ludgmenl so
Ihal there will sol be sulllclenl property of Ihs principal
1o satisfy any Judgment thai ts rendered against the
mlntslralor, executor, guardian or huslee, the courl shall
issue an I,Juncllon Of 1 such terms n~ are proper, enjoin-
lng such I~inclpal from disposing of his properly, or so
much thereof es la necessary faf Ihs pfoleclion of the.
surely until Ihs final dispoalllon of Ihs action. II Is sol
necessary lot Ihs surety to show that any amounls are
due by said admInlehalof, executor, guardian of huslee
but the Judge grantIng Ihs Injuncllon may vacate Il on
Ihs executor, edmlnlslralof, gumdian of trustee giving
adequale secmlly, Io be approved by Ihs coal, Io the
surely condllloned Io save him harmless lot ail loss
damage he sustaIns as at,ely,
I~ltO~/.--l. I. ~ ~q(~. 110~: acs 3l~3:, ~ #rs: i. ts. eh.
#ole.--Fam~m' t. ~4.1a'.
$0,05 ' Abatement nf nuisances.-
It) When any nuisance as delinnd In s. 823.05 ex-
Isls, the Allofnoy General of aisle altomey or any clllzen
of Ihs sourly may sue In Ihs name of Ihs state on
relellon Io enjoin Ihs nuisance, Ihs pe~aon of persons
melnlalning I!, end Ihs owner of agent el the Ixdlding of
g~ound on which the nuisance exists.
[2) 1he coufl may allow a temporary Injunction wtlh-
oul bond on proper ~co! being made. It It appears by
evidence of alfidavtt that · lempofary Inlunctlon ahmdd
Issue, Ihs co~10 pending the delerminetion on final hear.
I~ may en~ln:
(a) The maintaining of a nuisance;
(b) The operating and maintaining of the place of
premises where rite nuisance la maintained:
(c) The owner of agent of the building of ground
upon which the nuisance exists;
bu(d) The coflduot, operation of maInlenence of any'
alnese of ooIMIy operated of maInleIned h Ihs build.
lng o~ on Ihs premtaes In commotion with of Incident
Ihs mainlenence of Ihs nuisance.
lhe InJEncllon shell specify Ihs activities enjoined and
ahail col preclude the opemllon of any lawful business
sol conducive lo Ihs malnlenance al the nuisance com.
plained of. Al leel1:3 days' neltce In willing rhel be
en delendanl of Ihs lime and place of appllcalion Ici Ihs
lempofa~/Inlunetion.
(3) Evidence el the general reputation al the alleged
nuisance and I~ce la admissible fo prove the existence
of the nuisance. No ecllon filed by a citizen shall be dis.
missed unless the court Is aallafied Ihal II should be dis.
missed. Olhe/w~e Ihs action shall continue and the
stale atlomey notified !o proceed wllh II. 11 Ihs acllon
bro~.~ghl by n clllzen and the court finds lhal Ihere was
no reasonable ground lot Ihs action, the costs shall be
laxed againsl Ihs clllzen.
(4) On Irlal Il Ihs existence al a nuisance Is shown,
Ihe courl shaft Issue a permanenl InJunclton and order
Ihe cosla Io be paid by Ihe persons eslabllshlng or main-
raining the nuisance ahd shall adjudge Ihal Ihs cosls are
a lien on ail personal properly found In Ihe place of the
nuisance and on lhe failure of the properly Ia bring
enough Io pay the costs, lhen on Ihe real e.~lale occu-
pied by the nuisance. No lien shall allach lo Ihe real es-
Isle of any olher than said pernona unles~ 5 day~'
272
854
759 FEDERAL REPORTER, 2d SERIES
we find that many o£ the initial stages of
our inquiry have already been resolved by
controlling authority. First of all, we are
bound to treat topless dancing as a form of
expression which is protected at least to
some extent by the first amendment. We
acknowledge that the nature of the commu-
nication involved in most barroom dancing
is such that "few of us would march our
sons and daughters off to war" to protect
that form of expression. Young ~. Ameri-
can Mini J"heaters, '427 U.S. 50, 70, 96
S.OL 2440, 2452, 49 L.Ed.2d 310 (1976).
Nonetheless, as the Supreme Court has
noted, the proscription of nude dancing
infringes on some forms of visual prel~ent~-
tion which would not fall within the Court's
definition of obscenity. California v. La.
Rue, 409 U.S. 109, 116, 93 S.Ct. 390, 396, 34
L. Ed.2d 342 (1972).4 Because of this poten-
tial for infringement on protected expresy
sion, we must require the government to
show that its interest in regulating such
activity is baSed on something other than a
(D) To suffer or permit any person, while
on the premises of said commercial establish-
ment, to employ any device or covering which
is intended to give the appearance of or sim-
ulate the 8enitals, pubic area, buttocks, anus,
anal cleft, or cleavage.
3.2. it shall be unlawful for any female
person, while on the premises of a commer-
cial establishment ioc:~ted within the bound-
aries [sic] areas of the City, at which alcoholic
beverages are served or offered for sale for
consumption on the premises, to expose to
public view that area of the human female
breast at or below the top of tb.c areola there-
of, or to employ any device or covering which
is intended to give the appearance or simulate
such areas of the female breast as described
herein.
3.3. It shall be unlawful for any person,
while on the premises of a commercial estab-
lishment located within the boundaries of the
City, at which alcoholic beverages are offered
for sale for consumption on the premise~, to
expose to public view his or her genitals,
pubic are. a. buttocks, anus, or anal cle~t or
cleavage, or to employ any device or covering
which is intended to give the appearance of or
simulate the genitals, pubic are. a, buttocks,
anus or anal cleft or cleavage. SECTION 4. Penalties.
An3, person who sha]} violate any section of
this ordinance shall be guilty of a m~sdemcan-
or punishable by a fine not 1o exceed $500.00
or imprisonment not to exceed sixty (60)
days, or both.
desire to censor the communication because
of the community's dislike of its contenL
[3] We note further that in this case
the municipality's efforts to regulate top-
less dancing cannot be given latitude sim-
ply because the performances are pro-
scribed only in establishments licensed to
sell liquor. The Supreme Court recognized
in New York State Liquor AuthoriO/ ~.
Bellanca, 452 U.S. 714, 101 S.CL 2599, 69
L.Ed.2d 357 (1981) that a state statute pro-
hibiting nude dancing in places where aico-
hol was sold should be given particular
deference because bf the state's power to
regulate the sale and use of intoxicating
liquors under the twenty.first amendment.
Because Florida has not delegated its regu-
latory authority to municipalities, however,
Pensacola must justify its ordinance under
the stricter standard typically used to re-
view an infringement on a protected h"oerty
interest justified solely under the go?er~~
SECTION $. Severabiilty. ..', ,c-.f ,,;
It is declared to be the legislati~' lmenl
that, if any section, sub-section, sentence,
clause or provision of this ordinance is held
invalid, the remainder of the ordinance shall
not be affected.
4. The Court has not spoken dispositively on the
amount of constitutional protection that is war.
ranted for nude or partially nude dancing in the
absence of an assertion of twenty-first amend-
ment authority by the state, Ne~, York ,State
Liquor Authority v. Bellanca, 452 U.~. 714, 718.-
19, 101 S.Ct. 2599, 2601--02, 69 l,..F.,d.2d 357
(1981) (Stev.~.~"]., dissenting), but to the extent
that it has ~iddressed the question it has consist-
ently noted that the potential artistic or commu-
nicative value of such activity requires that
regulation be ~valuated under first amendment
standards. Set Schad v. Borough o/ Mount
Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181,
68 L...~.2d 671 (1981) (noting that "nude dane.
lng is not without its First Amendment protec.
tions from official regulation"): Southeastern
Promotion~, l..tt[ v. Conrad, 420 U.S. 546, 557-
58, 95 $.CL. 1239, 1246, 43 LEd.2d ~48 {1975)
(affording first amendment protection to the
musical production of "Hair"). ~ut zee Doran v.
,Salem Inn, 422 U.S. 922, 932, 95 $.Ct. 2561,
2568, 45 L. Ed.2d 648 (1975) (conceding only
that b~oom dancing "may involve only the
bares: minimum of protected expression" and
"might be entitled to First and Fourteenth
Amendment protection under some circum-
stance'').
BOARD OF COUNTY
COMMISSiON6RS
April 14, 1988
Krista A. Storey
Heal'her Young
Doris G. Ferguson
COUNTY
A'I'I'O RN CY
Daniel S. MC Intyre
ASSISTANT COUNTY ATTORNEY
ASSISTANT COUNTY ATTORNEY
ASSISTANT COUNTY ATTORNEY
Agent Gerald King
Organized Crime Bureau
Palm Beach County Sheriff's Office
3228 Gun Club Road
West Palm Beach, Florida 33406
Dear Agent King:
Re: Adult Establishments
Enclosed please find the copies you requested from our Adult
Establishment Ordinance No. 88-11 File. The charge for the
copying is twenty-five ($.25) cents per page x sixty (60) pages
fifteen and 00/100 dollars (815.00). Please remit payment made
payable to the St. Lucia County Board of County~Commissioners to
St. Luoie County Attorney, 2300 Virginia Avenue, Rm. 106, Fort
Pierce, Florida 34982.
If you require any additional information, please let me
know.
DGF/sls
Enclosures
Sincerely,
Assistant County Attorney
HAV[R! L. FENN. District No. t · JUDY CULI~.PPER, District No. 2 · JACK KRIEGER. District NO. 3 · R, DALE II~FELNER. Dislrict NO. ,~ · JIM MINIX. DlsttlcS No. 5
County Administrator' - W[LDON 13. Ill'WIS
2300 Virginia Avenue · Fort Pierce. FL 34982-5652 · Phone (407) 466-t 100 Ext. 2 t 4
INJUNCTIONS
Ch. 6O
le~ notice has.been given to the owner of hie agent who
lells to begin lo abate the nuisance wilhln said 6 days.
(6) If the motion wee bfoughl by Ihs Allomey Gener-
al, a elate attorney, of any other olficer of agency of
stele government; Il the ooufl fl~dl either balms of aftof
Iflll Ihel Ihm'e wlt flo l'eaeoneble Orouf~l lm Ihs aollon;
end If Judgment Il rendered for the defendant, the coats
and reasonable ettofney'l fees Ihell be taxed egalne!
Ihs state,
~0461.1941; l. !, eh. ~1T31~. tl~; l. I~, ch. tr .~4: I. I. Ch, I I .~; I. 14. ah. 13.334;
e t. ah, rl.2el.
Nole..--Fe~f Il. 64.11~4.14.
60.06~, Abatement of nuleaneeet'enforeement.--
1he court shah make such orders on proper proof as will
abate alt nuleen~el mentioned In e, 623.06, end has au-
Ihofll¥ Io enforce k~unollonl by t~ontempt but Ihs luffs-
diction hereby g~el~led dnel not lepeet of alter e. 623,01.
10,01' Aeeeeemenl al damages Ifllf dlllOlutl~n,--
In Inlunolkm actions, on dissolution, the coup! may hear
evidence and aeeaee damages to which a defendant
may be Shrilled under any Inlun~tlon bond, eliminating
Ihs neceeell¥ lot an Icllon on Ihs In~uncllon bond II no
pafly has requested alu~y ~lal on damages.
Ilteteff,--te. IA, ah, ~tl, Itil.* ~. I, ah. ffl3/. II~A: ~. tS, ch. S~.254,
273
,.SZ3.QG;' Places declared · nulsnncel may be
abated smd enjoined
Whoever shall erect, est~bllsh, eontinue, or main-
tain, own or lease any building, booth, tent or place
which tends to annoy the community or Injure the
health of the community, or become manifestly Inju-
rious to the morsls or manners of the people as
described in s. 823.01, or shall be frequented by the
class of persons mentioned in s. 855.02, or any
house or place of prostitution, assignntion, lewdness
or place or building where games of chance are
engaged in violation of I~w or any place where
law of the state Is violated, shall be deemed guilty
of mainbllning t nuisance, and the building, erec-
tion, place, tent or booth and the furniture, fixtures
and content8 are declared n nuisance. All such
places or persons shall be abated or enjoined, as
provided In sa. 60.05 and 60.06.
Laws IJ~8, e. 1~-~}8. ! 41.
laws Ii?S. ~ 1~-~4, I I.
~mp. Gtn.lm~t 19~, ~
Bev.Carl.SLier, J ~.
hWl Ill1, ~ 1367, I I.
'1
S E. C T I. O. N 6
NEWSPAPER, ARTICLES AND BUSINESS ADS~
Only four (4) topless bars advertisements were found
in local newspapers. Two articles reference the St. Lucie
County topless bars and one article about a bar in Clewiston,
using male strippers.
, ,,, ., .,.;. ;,. ,¢4¢'
2hude d~',c~r~fln~I in Fort Pierce craCkdown.
FORT PIER~ ~ M~t of ~e 14.* ~lty m~t of the da.ce~ were
kude dan~ at Joke~ Wild, ar- given -- and *~e c~arg~ agal~t
~ in a well-publie~ raid in ano~er w~ ~op~.
~ov~r, have r~elv~ ~all
~in. or had the lewd and iascivlo~ ~ly ~e ease remain, and Phil
~r~. agal~t them dropS.: Yardi, a ~urt-ap~ln~ la.er
:~.Tu~ay~ two ~ ~e da~ w~ hu rep~nt~ five of t~
~ fi~ 150 after plea~a ~. da~ ~id he ex~ a .l~lar
~t ~ ,
iSt. Lucie outlaws alcohol hi 'topless dane!rig lou.ges
IrORT PIHC~ -- AIc~olle liklbikdnl~dimiitkiihlM-,..Sm,th UIt I, arrIuq tM owner, , lWtalnmeot ~ tophi hut'-
· ~ lm~etltn, nd~ topkm d.iin~ul wilt nil.
..... fey blevidoa ,pals M~rtmmJl~ Chin .,b a u_~ mm _d~...
14rs 4e." ~ Jim MI.I-
I iud IM~ b oth~ ilt4t t Jewd BM
; taselvtou ich, ami iw~UtutJon."
:-Sheriff R.P~ "11~" KnowlmJ nM.
: Minister, nd ehur~
: ii~)JidlnI Ihe move. uld
aline" la IJ~ corem,airy. '
:: "It's tirol la ak. ia ,p. let I~le
know ~'~ pro~ OII. LucI,
County aM R~8 M · ~illv~ pllce
te live.' Ffft ~ reddent I!1
.Town"ministers protest'"'
d t p'"' hOW"
ub's ., ale :.s..r s .....
'. AHoclal,d Pre,,tr community newspaper.
Three sellout'shows featuring __: .... ·
At)out ~, women lammed The
five male strippers were e rude..,_
a-uu sar eBOn anew, paying
awakening for some ministers In
each tO watcU wrltAing meml~rs
Clewlston, a tight-knit town called ' .._
"America's Sweetest City," the os man.~.we.r, .a...LOS. .A. ngelea
· group, stop to t)lltlnl nrlels and
headquarters of U.S. Sugar Corp. ,~ .,.t... .' . ..
Ntghtclub owner Earl Meredith · ,d-ou,.a,;. ,., ..... ~
chuckles as he says still can't :' "Thts was Il atom out for th*
u.nde.retand .whet'all the fuss.:ls atria. I don't understand what al~
eOQOT. ' ' · .... ,,
· , . · .. the controversy Is about,, said
: 'They had to have somethtn8 to Lite Burkett. owner of Tbs
complain about." Meredith said of Place. a vld~m ttnra uti'ih
the mt.si, stets: lt.s,b, een real quiet ' Slime. ' Al far U that si-hr, we
8roufl(l Ilere Intel .' ....... w ~ '
....... ~' ..... .., . ere all adults. There ween t
HUt the. ~;tewIstOn Ministerial; womalt In there who couldn't have
Association Is on the offenslve.~ · , left. Fie one did." ! ',.; .....
· . "We believe opening the door l.., , ' · '::,"
crack now will lead to the Infusion" But the ministers In thll
t this 40-
of child I~_rdography,' ~rnogra* '; church town, of g,0Q0 character*
p.hy with violence_, Increas~ed d~g ' Ized~ the strip ahowa H pame-
sa)use, prostitution, end other, graphic, and the protest bas loreed
forms'of graft, corruption &ed.'Meredith to.abandon ptmm tel:
crime In our community," nine schedule I performance Iii:April
members of the association wrote by the Seth DollS, · fetltllO IbJ~
TGII:
Tho, Palm P~'~ch Po~'~t MARCH 2.5. 1988
¢
t
SECTI-ON 7
PHOTOGRAPHS - OCCUPATIONAL LICENSES - BEVERAGE LICENSES -
CORPORATION INFORMATION .'
.Photographs of each bar, beverage license, County
Occupational license and Corporation information are
attached if applicable.
NAMEr ~IMO~E ROB~R~ ~
ADDRt ~25 ~OUTHERN BLVD
ClTY/ST~ WEST PALH BCH FL
ZIP~ 33~06 - 0000
RIOINAL LICEN~ ~SSUE? 1/~ YRt
m~m.p A Y H E N T
DATE
H I S T O R Y mw~
HACH/RECEIPT
BU..qlNE~S
NAME I ~
t
ADDR s
CITY/STI ;..,
PENALTY~
6Q
.82
ItOTATIONI VARIETY EXHIBITION
' BAR & BAND
:~ESSAGEt '
60 ENTER CHANGES - PRESS PROPER KE~'
87
8~
8~
DISTRICT OFFICE COPY DEPARTMENT OF BUSINESS REGULATION U
DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO CITY NP, M£
u~.., L J [' I Is°4z3
AUOIT NUMBER
ISSUED T01 LOCATION~
MEPHAID BA~ ##25 SOUTHERN BLVD
$I~ONE ~0BEaT WEST PaLP BELCH
RENEWAL
LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFIN Bu~dNI~8 AT THE LOCATION
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND ADMINISTRATIVE RULES OF THE STATE OF FLORIDA.
SOUTHERN BLvo
PAL# BEACH FL
MAILING ADDRESS
..... c~YV
11~11 ~#I illllIlt A #~l~t tNt'¥ llPtll IALIIkI?II IY Tgi IllrlllOII eP ALIIIIIILIt IIVIRIIll ~ ?OIAGCO
DBR-7~3-L
t, PDZL 1~ rgB8 THI~U .MAi~CH '31t 1989
CITY NAME
LICENSE/
PERMIT NO.
ISSUED TO~
F..~X~ ~_A'.'~Y LOUNGE
COUN ?i,'Y
r~, ,:L· .'.L
LOCATION:
57rJ9 $ MZLZI~R~' TRAZL
LaK~ '. ORTN
THIS LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED BUSINE~ AT THE LOCATION
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND ADMINISTRATIVE RULES OF THE STATE OF FLOI~IDA .
DTE 10/30/87 00~
ACTIONz. FOLIO
NAMEg COUNTRY USA INC
BUSINgS8,':
NAHE~
ADDR~ 5699 S NILITAR¥ TR ADDR~
CIT~/STt 'LAKEWOflTH FL ClT~/STs ,
ZIP~ 33q6~ - O000.~.eNg! ~39 - 8700 ' ~UH~? 0~
fllGINAL LICENSE ISSUE?;" 1/2 YR~ P~NALTY~,
~a P A Y ~ g N T H I S T 0 R Y
DATE MACH/flECEIPT AMOUNT
YR#I 10 / 30 / 87 03 - 1~108 002~7 . 50
2 10 / 17 / 86 o3 - 1R106 002R7 . 50
3 09 / 18 / 85 07 - 03213 00225 . O0
~ 11 / 05 / 8~ 03 - 13021 00225 , O0
5 12 / 12 / 83 03 - 20193 00003 , O0
6 / / -
? / / -
~IOTATION= VARIETY EXIBITIOIlS STATE CERTIFICATE #:
TFR Ffl 82-0~115
'IESSAGE:
60 ENTER CHAMGES - PRESS PROPER KEY
LICENSE Yfl 87 - 81.~
86 87
85 U0
84 8,~
83 8'~
;.'}78 {'J I. i'd}l'i[~Jl!::., J'.'l)lT Ptl, J.)[:l~ I' -Er)t] I:1..
ICI II'II.:[N I'
/.":1 ,,i'~'...:i,<:,Y,,~.;.1Z,:/, I"l.l..[ '//.1:~/:1~/'/~,
tT:: I:I)UN I'I~,Y I.J,,~l,~ .... IN,:,.
~)I)I:U... !;;!.; ',".i(.W'./ l'; H.1. L. :1 'I'AI:{Y 'I'RAJ I.
LAKE t, ll.ll{HI Ft.
.'JTII. [;'IU(::K .1.00 I;II~I'[E[; t~ $1,00 ,'<'
:}:' Il;ER[I/f) T I~,[:' L": I'l.ll.[!l
I.' HE.~I..~[':I I!"'[, I~UI:tEFUr ?.067 1(III)7..A I,tD
:] HI~:~I.(]I.;I I[: :, I ILJL)lll:i[ 1' I'1=
( :1. '2,3;.'; ) .I. :I. / J. ?/1'/1~:!.; (.I. 986) 6/'L 8/}.'i,B6 (J."28?) 21.1.?I.L'?L{?
~78~9 J. NO.L
~r" ')' "' I'"
:~?:T4').L ~t;1'.[~,,,.:.;, FUR , ,{(.),. :l:. r t.. )(., r:'t...6o
I /%I(IL: HUi~III, F'I..,
DTE 09/29/87 007
.~CTION.' FOLIO #
OWNER
/lAME: ROTELLI REMO
. .'., OP NUM
82 - 05132 CLASS1 Og 025 STATUS: ACTIVE
BUSINESS · ~
NAME~~
ADDR: 70~ S MILITARY TRAIL
CITY/ST: WEST PALM BCH FL
ZIP~ 33q06 - O00O PHOHE#
RIGINAL LICENSE ISSUE~~'~ 1/2 YRt
q~a p A Y M E N T
DATE
YR#I
2
3
5
6
o9 / 29 / 87
O9 / O3 / 86
O9 / O6 / 85
12 / 06 / 8q
12 / 13 / 83
11 / 19 / 82
/ /
M I S T O R Y
MACH/RECEIPT
70 - 07557
O3 - 00~73
O3 - 00797
O3 - 1~756
03 - 20291
O0 - 25869
.... IIOTATIONt VARIETY EXIBITIONS
:, SEE 83~0~792
60 E.TE. C.A.OSS ":%mss
ADDR* 70q S MILITARY TRAIL
ClT~/STs WEST PALM BCN FL
'.~UMBER OFt . ,.,.~.
PENALTY'~- %
AMOUNT
~.00225!'. O0
~ 00225 · O0
00225 . O0
. 00225'. O0
, 002'25 · O0
00225 · 00,
STATE CERTI~XCATE,#~
:LICENSE YR 87 - 881
86 87'
· 85 86
~ .. 8q 85
" 83 8~
82 83
-':. I./'/' I ..... ,'}
I certify from the records of this office that COUNTRY U.S.A., INC.
is a corporation organized under the laws of the State of Florida,
filed on July 13, 1978.
The document number of this corporation is 578491.
I further certify' 'that said corporation ;.'has paid
office through "December 31, 1987, and its
all fees dUi'"this
status .!s .~.active...
· ~,:~.~:.. /i~ .
~rent ~enl of file ~tate of ~lllarlba,
11th ti. February, 1988.
~TE 10/07/87 OOil
ACTIONt FOLIO #
OWNER
ADDR~ ~458 PURDY LANE ADDR~
CITY/STt W PALM BEACH FL CITYf~T~
zi ,, 33 o6 - oooo P ONE# 96? - : , UHB R
RIGINAL LICENSE ISSUE?~:;:'
""" P A Y H E N T H I S T O R Y ""* '
DATE MACH/RECEIPT "
'rR#l 10 / O?:/ 87 Oq - 02193
6 09 / O~ / 8~ O0 - 000~
7 O? / O? / 82 ~00 -
~OTATIOM~ ~ARIETY EXHI
~. " OP
82 - 29521 CLASSt' OE - 025 STATUSI ACTIVE
BUSINESS
-~"u _.Ii - --.
14ESSAGEt "
60 ENTER CtlANGES - PRESS PROPER KEY'
'AMOUNT,..
STATE CERTIfiCATE
YR Bl' - I~
86 8
85 8
811 8
63 ~
82 8
'81 8
O (ICIJt"IJ<N I'.
r I £: ?'/J 4/:1%?,71 I..D'I' ;I .1/]
NClllE: F'l..d.t;I IO./'ff, lI.X.:: ii;I.)l:{l')(.);j.~ r [ I')N
~,DDI([:D,~;
t, ll'lll. !;'ll~(.:l( '/t'.;O0 ,~;!.I1:{,% ~! .!..1,00
~:;F F ]: I:;E;~,',:; / L) :[ ;t I::; r: l'lJ I t ~.; ::
I'/D (~l..I..li.l~, I..I 1¢ff41,1
H.I:.:G . l'~l.i[::N I' ¢d..I...l.::N., I,,,IJ;-~l, ll'l
I,'ll:~',:Jl' l~¢'4.¢t [ICII.., ;:'1...
(fl,'l,~l!~L I-',I..:['(..F('/!.; I ':11..L:D: ( .1 T~,4 )
FI. Ill PII,(.)I':II' L.I:)I.; F'l.....60
$'/21/:i
( :1 $'8~ ) 2/O6/:1F86
UH.ili4H.,I urrH,,Ir. ~OPY
DBR-723-1.
IJl:l"/alt IIVII-N I Ut IclU~ll~iP-l~,5 HI:(.iULA1 IUN
,~P~IL 1, 1.811 'rH~u HA~CH 31, 1980
~lS LICENSE~ERM IT AUTHORIZES THE HOLDER TO ~DUCT ~E DEFINED B~;I~ AT ~E L~ATI~ ' ' :
IMPRINTED HEREON PURSUANT TO APPLICABLE ~ ~ld~lD ADMINISTRATIYE RUI. E~ OF THE 8~ATE OF FLORIDA.
· :"' "-. , ~.,~ ',' , ~ 'i~';: '
'qqS'8' PURDY. C~~' ::'" ..... ' -'~' ?'' ~'"'~ 'I-:, ~.,~?~.,~,~?~~,~'.:;~:',':~..:.~:'~'~,~~
~q58 PURC):Y LANt
~[$l P'ALH' B[ACH
LOCATION~
~rpurtmr.! .f f~tatr
I certify from the records of this office that FLASHDANCE
CORPORATION wes a corporation organized under the laws of the State
of Florida, filed on July 14, 1983. " ","
The document numb,er of this corporation is G48812.
,, : , ; ~-, ).~,~'~-!L"~'I'
I further certify that said corporation Wal}' Involuntarlly,l,di,l, solved
on November 16. 1987.
.~ ,:,
DBR-723.L
DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO
AL[~I:)HL)LII:; UEVERAI~E LICENSE FOR THE P~:RIOD
APRIL 4, ,4719EI THRU MARCH 34, 4989
CITY NAME
PERMIT NO. 60-0 14 40~R SERIES COP FEE $47~30. O0
ISSUED TO~ LOCATION~
4445 NORTH FEDERAL HWY
DELUCA ALFRED THOMAS BOYNTUN BEACH FL
THZ9 LZCENBE MAY NOT BE MOVED FROM THZS LOCAT[ON , .~
tHIS LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED BUSINESS AT THE LOCATION .~
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND ADMINISTRATIVE RULES OF THE ~I'ATE OF FLORIDA.
.... ~ , ~ .' , ~,~.,"
DELUCA ALFRED THOMAS ,- ,~ .,,, ,:., :
4,445 NORTH FEDERAL HUY
BOYNTON BEACH FL
MAILINQ ADDRESS
33435 0~/04/90 ' 471G0. (~'r PAZI
B'AI Id .rir,.u
~l~d Pl Mil di fll~.Jil~ ONLY 181~lN IALIDATID lY TJ4l OtVIIION OF ALeOflOLll IIVIIIAIII t TOIiA~O
" ,sSUEC, --.,,,S,,,,,.T To .Y co .,,I.&6y,to
· ~4~C:TOIq, I:~VlglON OF ALCOHOLIC llrVl:l~B, GIl Il TOBACCO ~' '~
Jlrpartmrnt ~f t~tati,
I certify that the records of this office do not disclose ·
corporation by the name of DE LUCA AND SONS, INC., either foreign
or domestic, active or dissolved.
DBR-723-L
AUDIT NUMIER ......
ISSUED TO~ LOCATION:
~:~GLI H ~U~ 383 N MILITARY TRAIL
PANTHER IN, C ~EST PAL~ BEACH.
THIS LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED BUSINESS AT THE bOCATION '
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND AOM INISTRATIVE RULEqOI~. THE..$TA.,~.. 0~., ~,[,O.~lP.A
P 0 ~0X 171~6'~.*~*~','~**.~-~*'''** * '
.... :~ . . - . ,~' , . , . .~ , , - ,,~?,,,-.::.,:;:~, , .
ACTIOH:
OWHER
NAHE~ HAASZE F JACKSON
ADDR{ 359 S COUNTY RD
CTTY/STI PALM BCH FL
ZIPI 33480 - 0000 PHONE{
RIOINRL LICENSE IBSUE?:'-'~''
.mini p A y M E H T
DTE 11/15/82 001 '' OP NUM
FOLIO # 82----]~J"'~"~{~-OE----;025 STATUSt INACTIVE
BUSINESS :'
NAMEr
ADDRt J383'N MIL',TRL.
CITY/~T~ WEST~PALM:BCH'FL
09 / O9 / 82
/ /
tIOTATION~ VARIETY EXHIBITION
DATE
'Ze#l / '/
:~ / /
~ / /
11 / /
5 / /
6
.'tESSAOE~
60 ENTF, R CIIAHGES - PRESS
I.) t.)tli.lfq;.:i;,l f
I'[]1 :',','"..1,t;',:;t, OL',] I I..L: ~,/2'.]/.1 Y/C,
NIII'I[.' ;' Ifil( I',':,N l'l It(R ,. IHL',
~L)I_)I.ULL;!.; ~4[',t'.', It(~l'i'lll PI] I..:t'l'~ltY '1'1:~:11.
!4~::{l{l' I'AI..Pl [lC:Il:. {':'1..
FILl'Ill, i;'ll.'i.:l( 100
I II-'l: [ I j:l:(l( :.1 / I) .[ Il.l:::(:
I~/l'/t; I/(.~F-,,~:ZIZ., I'I'I]L.]I"
"/1' { 1,%,",'..; Z.:';.,
..[;. ~'c',(.iI::I'.{T II(I(',~;Z[.: I'll]l..:ll'
· ~t;,'.$ lq f.I .I {';',R'( I';~.P, II..
I' .,Ii.
HE:ti]' P~I..I'1 ;11.:11., {'"'1.
(,NI'IU(II.. I'(IJ.:l:'(]l'(/'!.; I':ll.[Ii;
· .{ .'.'l 4 ( ) 6
27,°.t.; },IllTH Y('~I~I< i.;'l
::! ?,0,5 i'.I,E~4 'fi. Il:U( ,'.; 1'
', .":'l -i.',4 "/'! 0/.1
f:! I(",l,l.(i Ii.J) 7/0:1/'.l
bpartmr.t af tatr
I certify from the records of this office that PINK PANTHER, INC.
is a corporation organized under the laws of the State of Florida,
filed on August 21, 197.8.
The document number of this corporation is 583542.
I further certify that said corporation has paid
office through December 31, 1§87, and its
!
ell fees due this
status is active.
11th ~ February, 1988.
DBRo723-L
LICENSE/ I~) 0. ~ll ]{i~
PERMIT No. -
ISSUED TO~
~LUB P£[t< A ~00
SUCA~' SHACK T.~C
QF_ALCOHOLIC BEVERAGES & TOBACCO c IT Y NAME
LI[CEN~£ FOR THE PER]OD
~,f~CH 3 I ~ 1989
...I' ';-.oo 1 o 73 .
LOCATION:
tit LA/~,[ i,/OI~TH C)D
LAK£ VORTN
,THIS LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED ~.JSINESS AT THE LOCATION
IMPRINTED HEREON PURSUANT TO APPLICABLE La, Wi AND ADMINISTRATIVE RU,LE$..OF..TH.E STATE OF FLORIDA.
?'.~ ' . ~ . ~r. . '';~",~";':;~'~"~-? ;'~i''~ '"~'~. i/'~
, 3IT~ tl#E vORTN ltd · ~ .... ,~ ...... *. ~,.~, ,.. .,'.Y;,..,.. ......
( DTE 10/02/87 OO7
_, ACTIONt FOLIO
OWIIER
HAMEI ANNUNZIATA RANDY
87
ADDRI 10116MIKADO LANE
CITY/STI WEST PALH BCH FL
ZIP~ 33411 - 0000 PHONE# 793 - 6109 :,,NUMBER OFt
RIOIIIAL LICENSE ISSUE?'':~' 1'/2 YRt PENALTY'{
H I S T 0 R Y
MACH/RECEIPT
70 - 08900
o3 - 18869
~.m~ P A Y M E N T
DATE
'rR#l 10 / o2 / 87
2 12 / 22 / 86
3 /
!I / /
5 / /
6 / /'
? / /
NOTATION: ENTERTAINMEHT
':' ' OP NUM
,025i STATU, S~ ACTIVE
· NAHEI
ADDRI 3I?~.LAKE WORTH RD
CITZ/,ST~ LAKE WORTIi FL 331161
HESSAGE~
AMOUNT
00225 . O0
00225 . 00
! · . ·
',
STATE CERTI~'ICATE #~
LICENSE YR 87 - 89
86 87
60 ENTER CHANOSS - PRESS I'ROpER KEY !; :: : , ·
; ' I. ;* :i' , ;" ;' '
t~DDR[.!~;!; ;~174 I../:d(E: HUF{I'I.I RD,
I...dK[.: HURHI., FL
dLH'II..~:;'r(~(:l( .lOO !::l.l~l.~lJ..!:; h'l' f..1 .oo
I.)Ff:IL',.I£1{rJ/I)I[TI.~I'; I'lJ;l,~{ ,"
I" PI(':IJ: ¢-~ :! N, D[]N ,.I.
R[:'U., ¢l{)E:Nl' MCIJ~.'~It, I,.OI]N ,I,
;~.174 '[:~l(li: HURTH RI),
L.(~I(I~:: HI'lIT, rll..,Ivl...
dNNIIAI.. I,t.l(ll-,I,, I:']I..L.I.~, (]5'8?)
4/27/1 '~'~
609 801111 fiVE..'. N, t4.
':
334'1.L
412V l.15't:,7
{bpartmrnt of t tah,
I certify from the records of .this office that THE SUGAR SHACK,
INC. is a corporation orga,nized under the laws of the State of
Florida, filed on April 14, 1916. . . '
The document number of thss corporatson m ,J09209. ' . .
.,.. ~ = ' ,*,,~ ' '"~ '1.
I further certify that said corporation has p.~id all fee~:~idu, e"t. his
office through December 31, 1987, and sts st tus is active. "
DBR-723-L
DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO
ALCOHOL~ BEVERAGE LICENSE FOR THE
APRIL'*,, '19'87 THRU I~kRCH 3'1,
CITY NAME
LICENSE/
PERMIT NO.
ISSUED TO=
BRASS BULL BAR
BEAR OEORGE GRANT
TRANSFER-RISCELLANEOUS CHANGE(;
LOCATION=
I 127028
AUDIT NUMBER
704 B RILITARY TRAIL
UEBT PALR BEACH
/",'ri-IlS LICEI~E/PERMIT AUTHORIZES THE HOLDER ~ CONDUCT ~E DEFIED ~I~AT~E ~~W,~ i:
y.
21:1.0/J. '? ,'.!
L.AN TANA.. l:l. IJtl.[ l)A
DBR-?23-L
DIVISION OF ALCOHOLIC BEVERAGES & TOBACCO
ALCOHOLIC 8£VlrRAGEL%C[N~E FOR THE P[RI0~
f,P~ZL ]. 1988 l'HrtU 'A~CH 3t, 1989
CITY NAME
..c...,] I I I I',?',o.oo ]1298357
PERMIT NO. (, "~ ',~ 00 3 SERIES ' ~ ~ 0P FEE t
AUDIT NUMBER
ISSUED TO: LO~TION=
HOu'LYS L~UNB~ ]NC : ~YNT~N ~[ACH "FL~
'HIS LICENSE/PERMIT AUTHOPlIZLkll THE HOLB£tq TO C~NDUCT THll DI~FIN~D it~._,A_T, ma kOGA .'rM3Ni'..,:~{..;:.,~ ,
IMPRINTED HERIE'ON P~ANT 1'0 Alq'l.~k.li IdlkMl~ ~ ADMINIIT. ,A~., .T~. ,~,,` ~IL~I~T~., I?~AT~ M Ft,:ORtDA ~ ' '
, ' ', ',. ,.' ' ;,.-.~ ~.",, ~=,,~: '~,.' ....... ,. · ' · ',' , T ' .~, . i~ ~'.-v <=.,. ~
~lrpartmrnt of ~tatr
I certify from the records of this office that MOREY'S LOUNGE,
INC. is a corporation organized under ~he' laws of the State of
Florida, filed on March .12, 1980.
The document number of this corporation is 658955.
I further certify that said corporation has paid all fees due this
office through December 31, 1987, .and its status is. active.
· .' , :,,*~ ',' !
at ~llahas~ee, t¥ ~apital, ~i~
11th ba~ of
Februa~, 1988.
,
OBR-723oL
~PC[L ! , 1~B8 THI~U flAIICH '3'!. 1989
CITY NAME:
LICENSE/
PEnMIT NO.
AUDIT NUMBER
1298672
ISSUED TOt
LOCATION:
~EST PAL# B[AC~
THIS LICENSE/PERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED BUSiNEBB AT THE LOCATION. ,~
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND ADMINISTRATIVi flULESOF.. ~ STATE OF FLDRIDA.
............... '; ~'~,,'*/'::"" [~1'~ ' ' ~ti~,~,~,~,,~'~;'/ ...... '!~~li~
-L- ~$UEDJ~IRJII~.TO I~W WY~'~ ';** · ....... , *.'~' ~ *'"'~" ? ....
~ :1 ',iY--~&,~:.~;';~7~. F I..I;.:
l~,.t])~l[i[ll, f~ fll:]ell';ll,, IVl...
'..ri'ti.
',.,."' I t;[.:ll~J/O L,ll;t," ' ' I' ti,lo' '"",,
i'/D HI.ri'L:! I] li{;;!i;., iSNHi:"I'Tt5
:]1;.. /~UEHI' IIIITI211It.ll.}:l., 6HHEfI'A
.'l,ll,~l.lf,L
( :1 S'&I. )
Rltllli:l;~h E,'I::II, I'1.. 000,
t;I I(~N I:i E 0 3 / 2'? / 1. ') 8.,;
I.:l.I/~lll'.41::D '~12~;'/.1
(,S"/2 I:,~'~ I.)I-,IlJE:
6'27'2 .'.lfY( t);~,It)[:
DBR-?23-L
APRIL it 1911 THRU MARCH
CITY ~1 A M ~.
THIS LICENSEfPERMIT AUTHORIZES THE HOLDER TO CONDUCT THE DEFINED iU~INI~ AT THE LOCATION
IMPRINTED HEREON PURSUANT TO APPLICABLE LAWS AND ADMINISTRATIVE RUt. U OF THE ITATE OF, FLORIDA.:.
MAILIN0
ADDR~
COUNTY . , :' "~~~~ ' ~ ~ ' '~ ' ":~ "~9' ~;; ~i, ,*, · :,"
PURE C PRETTY INC
RENENAL
LOCATION=
2SO I,"ZSO S IltqAOid&Y
~lVlelt~ leaCH
i' I I" l[ I iso5o3
LIC~.S[/ bO--O t 72 1
PERMIT NO. SERIFS ZCfJP
AUDIT NUMBER
I certify from the records of this office that COOKIE JAR, INC. was
a corporation organized under the laws of the State of Florida, filed
on April 4, 1985.
The document number of this corporation is H50514.
dissol'~ed
I further certify :that said corporation' :.Was involuntarily
on November 14, 1986.
Seattle
Department of Col/ {i fic t "i fi'aha g ind Use
March 24, 1989
Dear Citizen:
The Department of Construction and Land Use has prepared the
attached Director's Report and RecoMmendation on a proposed
Land Use Code amendment regulating the location of topless
dance halls.
The Department proposes to define topless dance halls as
"adu!u cabarets" and establish them as a new category of use
'under entertainment uses. The proposal would limit the
location, of adult cabarets to three downtown zones where
adult motion picture theaters and adult panorams are also
now permitted. These zones are the Downtown Office Core 1
(DOC!), the Downtown Office Core 2/400' (DOC2/400') and the
Downtown Retail Core (DRC). The removal of the Downtown
Office Core 2/240' (DOC2/240'l zone is a major change from
the Draft Report published February 14, 1989.
A public hearing on the amendment will be held before the
City Council's Public Safety Committe on Monday, April !0,
1989, at 7:00 P.M., Council Chamber, l!~h floor, Municipal
Building, 600 4th Avenue.
If you have questions about the proposed amendment or the
public hearing,· please contact Ikuno Mas~erson at the
Deparsment of Construction and Land Use, 400 Municipal
Building, Sea~!e,. WA 98104, or by ca_=_ng 684-8880.
Sincerely,.
Director
DIRECTOR'S REPORT
PROPOSED LAND USE CODE TEXT AMENDMENT
ADULT CABARETS
March 1989
'n response to Council Resolution #27905, the Department of
Ccnstrucuion and Land Use (DCLU) is proposing an amendment
~o the Land Use Code which would define topless danc~ halls
as "adult cabarets" and would authorize their location to
specific zones. This report uses the term "adult cabaret"
Jo refer to topless dance halls. The proposed changes
balance the need of adult cabarets for adequate locational
~ppor~unities with the needs of residents for healthy, safe
neighborhoods. The changes are also consistent with
exls~i~g land use policies.
Adult cabarets are entertainment uses where nude and/or
semi-nude dancers perform.for members of the public. Food
'ant/or beverage may or may not'be served. Liquor is
?enera!!y not sold on the premises of adult cabarets due to
provisions required state law.. Presently, these businesses
are defined in the Land Use Code as performing arts theaters
and are permitted in all commercial (except Neighborhood
Csm.nerciai 1), downtown and industrial zones.
The .proposal recognizes a growing concern for maintaining
5he neighborhood character of the City's commercial areas.
-- ~oes no~ intend to regulate the activity within adul~
-auare~s but rather concerns itself with the effects these
businesses have on the surrounding community. While there
are many perceptions about what these effects are, this
repot= concludes that as a class of use, adult cabarets have
adverse impacts on public safety, welfare and property
';a!ues. impacts such as these indicate that adult cabarets
are not compatible near residential development. For that
reason, DCLU proposes to permit the location of adult
cabarets in the non-residentially oriented downtown zones
where aou_= motion picture ~heaters and adulz panorams are
now permitted. These zones are: Downtown Office Core 1
(DOC1), Downtown Office Core 2/400' (DOC2/400'), and
Downtown Re~ai! Core (DRC).
BACKGROU~UD
Tzpless dance halls, bars, and/or nightclubs have been
regulated as performing arts theaters since the adoption of
~he Neigt~orhood Commmercial Code in 1986. Historically,
%ney have been treated as restaurants, dance halls, ~heauers
or indoor places of public ass~k~e~e~di~g--on the type
of operation. They have been prohibited in residential
zones and permitted in commercial, industrial and downtown
zones, as they are today.
Of the eight known adult cabarets now in operation, one is
!ocaued in the Downtown Mixed Commercial zone (DMC 125).
Some form of adult entertainment use has existed at this
location intermLttently for many years. Another, located in
a ~.eighborhood Conu~e~cial-2 (NC2) zone, has been at the same
location for over 20 years. There is one located in a
~oWntown Office Core 2/400' (DOC2/400') zone. Three adult
cabarets are located in Neighborhood Commercial 3 (NC3)
zones, and two are in Commercial 1 (C1) zones. The .latter
six have been newly established within .the last two years.-
This recent increase in the establishment of adult cabarets
in Seattle's neighborhood commercial areas brought about a
considerable number of citizen complaints. The Public
Safety Committee of the Seattle City Council received
numerous phone calls and letters, including many from
northend community councils and merchants associations and
several petitions with hundered of signatures.. These
citizens expressed their concerns about the decline in
urcperty values, increases in insurance rates and-fears
about burglary, vandalism, rape, assaults, drugs,
prostitution and the overall detrimental influence on their
neigb_borhoods. · -
This citizen concern prompted the City Council to adopt
legislation which requires both new and ex!sting adult
entertainment businesses to be licensed (Ordinance 114225)
and places a moratorium on the establishment of any new
business until the Land Use Code is amended (Ordinance
114254 and Resolution 27905). This report is part of that
Land Use Code amendment process, examining how best to
re?ulate the location of adult cabarets~
Regulation of adult entertainment uses is a constant
challenge for communities. Regulating these uses is
different from regulating other uses like crocery stores or
restaurants because arts and entertainment uses involve
protected forms of expression, such as da~.clng. Local
governments must be cautious in regulating adult
entertainment uses because of the constitu%ional issues
involved. The First and Fourteenth Amen~nents to the United
5rases Constitution are often cited in case law as the
s%andards against which regulations affecting adult
enuertainment must be measured. The First .Amendment
prc5ects the right of ci5izens to freedom cf speech or
e×pressicn,"'and"Chis~ f~=der~l"right ex~end~ u~he's~ates ·
under ~he Fourteenth Amendment.
One traditional method used by local governments ~o regulate
adult entertainment uses has been through licensing. This
approach often requires owners, operators, an~/or employees
to provide detailed business information and specifies
facility and operational standards. The City's recently
adopted legislation which requires adult entertainment
businesses to be licensed with the Department of Licenses
and Consumer Affairs is an effecti~ method for addressing
performance-oriented standards. Stand~r~k~-w~ich regulate
~e planning effects of different uses are best incorporated
Into zoning or land use legislation. As a general rule
~kese are more effective at addressing !ocational issues.
in the 1976 landmark decision of Younc v. American Mini
Theaters, Inc.,1 the U.S. Supreme Court declared that as a
!and use, adult entertainment uses are subject to carefully
tailored regulation to minimize adverse land use impacts.
in order for a land use regulation of such uses to be valid,
several conditions must first be satisfied. One condition
is that the local government must provide opportunities for
this type of expression. In other words, zoning cannot be
used directly or effectively to ban adult motion picture
theaters, bookstores, or dancing. Another condition
re.~uires that limits not be ~placed on the number of
establishments or on the accessibility of such facilities to
those who wish to patronize them. The Court determined that
zoning can legitimately be used to regulate such uses by
establishing zones where adult entertainment uses are most
compatible with other uses or the surrounding neighborhood,
cr by req:uiring minimum distances to be maintained between
adu!5 uses and other uses. Another more recent U.S. Supreme
Court case, City of Renton v. Plav~im~ Theaters, ID~.,2'
reaffirmed these concepts. It also verified that a city is
entitled to rely on the experience of other cities in
enacting legislation to regulate adult entertainment uses.
Both of these decisions have been used in many cities to
suppo~ local government zoning regulation of adult
enter~aip~ent uses.
£eattle, like many other jurisdictions, relied on the Younc
Cecision to locate adult motion picture theaters only in the
central business district. Citing Youn~ again in 1979, the
City limited the areas where adult panor~ms could be
located. In 1985, reflecting a decisive policy in the newly
adopted Downtown Plan to encourage downtcwn residential
development, adult motion picture theaters and adult
panorams were authorized only in the Downto~ Office Core !
(DOC1), Downtown Office Core 2 (DOC2) anc the Downtown
ReEai! Core (DRC) zones. To date, these are the only two
forms of adult entertainment uses identlfied specifically in
Sea~!e's land use regulations.
AN3%LYSIS AND RECOMMENDATION
Land use regulation is based on the concept of
compatibility. Generally, the City's commercial and
~owntown policies encourage a variety of businesses which
are compatible with each other and th~-r~siziential areas
~he? serve. However, some commercial uses have impacts
which are not compatible with the nature of some business
areas or create unavoidable impacts on surrounding
residential areas. Animal shelters, towing services, and
construction yards, to name a few, are examples of
com~.ercial uses which may have objectionable impacts near
residenEial areas and are identified and regulated
accordingly in the Land Use Code. In a study entitled
"Zoning Controls for Adults-Only Theaters" prepared by the
City in 1976, it was determined that adult motion picture
zhea~ers were not compatible near. residential neighborhoods.
(This' study was cited by the City of Kenton in their U.S.
Supreme Court case with Playtime Theaters, inc.) In order
zo determine in what zones adult cabarets shou!d.be
permitted, it is necessary to survey their impacts and
~etermine with what other uses they are compatible.
Curing the review of Seattle's licensing ordinance, the
Public Safety Committee of the City Council held a public
hearing. Many citizens spoke of their concerns and fears
abcu5 these businesses in their neighborhoods. Problems
with parking and traffic, deteriorating propersy values,
zt~raction of undesirable transients, increases in crime,
hazards for children and personal.safety, once again were
some of 5he impacts expressed about adult cabarets on the
overall quality of neighborhoods. A recent rezone
appiica~ion proposed by .an adult entertai~v, en5 business'has
~enera5ed many letters opposing this rezone. Citizens ~have
complained that this business interferes wi%h 5heir ability
~o raise their children 'in a healthy family environment.
A decision by the City in 1976, to allow adu!5 motion
pic%ure theaters only in the downtown area was upheld by the
Washington State Supreme Court based on fincinGs tha5 these
same impacts, mentioned above, were indeed Cesrimental to
residential areas 3 In another case, vii~-
. __=~e of Belle
Terre v. Borass, the U.S. Supreme Court recognized that
local.governments have the right to use zoning based on
imDacss on family values to protect the pub!lc welfare.4
Studies undertaken in other communities have verified that
these same impacts are associated with adui~ entertainment
uses in %hose communities as well.
Of these impacts, this study'found that impacts on public
safety and property values had the most quantifiable
dccumentation.
in the law and planning literature on adult entertainment
uses, public safety hazards are the most often cited adverse
impacts on surrounding communities. New York cit.~ pp_~j_ge
have found that seri6us crime complaints ran almost
h~qher on police posts tha~ contained adult uses.~ The
dities of Cleveland, Ohio;~ indianapolis Indiana;7 Los
.~nge!es, Ca!ifornia;8 and Austin, T~xas;§ among others have
documented 5hat crime rates were any where from 15% to 77%
higher in areas containing adult businesses than those areas
containing no adult businesses. A study in Phoenix,
Arizona10 concluded that not only was there a higher rate of
sex-related crimes in areas where adult businesses were
located, but that rate was significantly higher where there
was a concentration of adult businesses. Boston is one of
the few ci~ies that has taken the concentrated zoning
approach, limiting adult-only uses to one, seven-acre area
''in their downtown. Their "red light" district, commonly
referred to as the "Combat Zone" also has a higher incidence
of crimes than other business districts in the city.1!
To date, 'no analyses or comparative studies have been
conducted in Seatt!e to verify correlation between adult
cabarets and criminal activity. It is assumed that adult
cabarets in Seattle are not unlike those in other cities.
While not every adult business is predisposed to be involved
with criminal activity there is enough documentation, as
evidenced above, to demonstrate a direct link between the
potential fcr increased criminal activity and adult
cakare5s.
Like adult motion picture theaters and panorams, adult
cabarets are auto-oriented or destination-type uses
a~tracting a regional clientele. Trade characteristics
studies in ~othel!, Washington12 and Austin, Texas
9
confirmed that at least one half of all customers
frecuenting adult businesses were located outside the ~ity
limits (one investigation in Bothell found that of 321
vehicles checked, oply 8 were registered in their city).
A~d in Austin, less than 5% were located within a one-mile
radius of the establishment. While there are many
businesses which may have regional attraction, the fac5 that
adult cabarets also have an increased potential for crime
make ~hem mcre of a public safety risk on a neigi%borhood.
People who-uatronize these establishments may have no sense
of identity with or regard for the neigD~horhood in which
these businesses may be located and therefore less inhibited
in their persona~ behavior than if they were in their own.
co~unity. Seconcary effects of police calls to a business
are also crea5eG. Noise from sirens and flashing !ighus and
traff&c hazards from police and emergency vehicles are
disturbances not conducive to healthy business or
residential environments. The increased potential for
crime, together with these secondary effects, result in
impacts which are more substantial than those of other
neighborhood commercial uses which are intended to serve the
needs of surrounding residents.
Decline of property values is another impact that can have
serious effects on residential, commercial and industrial
ar6as. Many jurisdictions have indicated property values
are likely to decline as a result of an adult cabaret
locating in the vicinity. In 1984, an analysis of adult
entertainment businesses in Indianapolis was conducted by'
that city's Department of Metropolitan Development.7' With
the assistance of the Indiana University School of Business,
they conducted a national survey of members from the Member
Appraisers Institute and the American Institute of Real
Estate Appraisers regarding the market effec5 of adult
entertainment businesses on nearby land values. It was
concluded that "adult entertainment businesses - even a
relatively passive one such as an adult bookstore - have
serious negative effects on their immediate environment."
While respondent felt that both residential and commercial
properties were affected, residential prouerties were more
severely impacted. The cities of Kent, W~shington;13 Los
A~geles, California;8 and Oklahoma City, Ok!ahoma14 also
conducted analyses with similar conclusions. Detroit,
14ichiqan is well known for basing their dispersion
requirement for adult uses on protecting prcperty value.
Their zoning ordinance was designed to protect business
districts from the blighting influences and the "skid row"
effect caused by the concentration of adult businesses.15
Renzal rates and occupancy of office/retail space in
Washing%on, D.C.'s Franklin Sqiuare have nearly ~oubled since
adult-only businesses have relocated out of the area.16
Sea~!e has very little land devoted to neigD~orhood
com~erclal use. Such zones represent only about 6% of the
City's !and area. The City's industrial !~ds are similarly
scarce. Allowing the location of adult cakarets with the
~cuenuial for negasively impacting property values would be
detrimental to these areas and contrary to zhe adopted
policy uo prcmote healthy indussrial and business climates.
Within ~he scope of adopted City policy, tke following
changes to the Land Use Code are proposed to provide.
compatible !ocaEions for adult .cabarets with other
commercial enEerprises in the community. ~ajor changes are
discussed under'the '~opics of Definitions, Nonconforming
Uses, Ccmmercial Zones, Downtown Zones. and Industrial Zones.
2urren~!y, there is no terminology in the Land Use Code
wa~cn specifically describes an estab!isP~ent where live
entertainment is almost exclusively provided by nude and/or
2eml-nude performers. With the adoption of the Neighborhood
i~r.~ercla!CCode in 1986, these types of uses have fallen
~ncer ~ke tateqory of performing arts theaters. The major
~mpac~s associated with most performing arts theaters focus
~rcuna parking and traffic. However, public safety and
we~=~-o ~s the major area of concern associated with adult
~asare~s. Since the impacts associated wi~h adult cabarets
~-= ~nificantly different than tkose of other performing
~ ~neaters, DCLU recommends tkat ~he use "adult cabaret"
· '~ ¢-=~'=~ca!!y defined.
.Lt azu!5 cabaret is an entertainment use proposed to be
~~-~ as:
a D!ace of public assembly, where licensing
as an "adult entertainmenu premises" is
required by SMC 6.270.
Uhere are eight known adult cabarets currently in operation
~n Sea[u!e. Seven are located in zones, which as a result
:f uZis amendment, would make them nonconforming uses. They
wcu!c he allowed to continue but would be subject to the
~ru'z~$nso for nonconforming uses in the zones in which they
~-o ~ :ca~e~.
ZONES
The c:r~ercia! area use policies generally encourage
2us:ness by promoting flexibility of business activity
compatible with the neighborhood-serving character of
hus:ness districts and with the residential character of the
surrzuncing residential neighborhood.
ihe function of the Neighborhood Commercial 1, 2, and 3
zones (NC!, MC2, NC3) specifically emphasize pedestrian-
ar~ented shopping, serving adjoining or surrounding
resicential neighborhoods. Single purpose residenEial
structures are allowed through the conditional use process
~nd residential uses mixed with commercial uses are
~erm~ted ou~r-i~-h~-.' These zones are typically noda~'=--r~as
in residenuial!y zoned neighborhoods or along arterials
ac]scent ~o residential areas.
The ~om~ial-i--iC--i) zone begins to provide for more of a
city-wide clientele, with auto-oriented retail sales and
services. The C1 zone also allows residential development
on the same basis as NC1, NC2 and NC3 zones.. These zones
are generally located along arterial streets abutting
residentially zoned land.
The Commercial 2 (C2) zone is also auto-oriented providing
land for city-wide business support and light manufacturing.
Residential development is allowed on a case by case basis
through conditional use review. This review is intended
primarily to preserve scarce commercially zoned land for
preferrred commercial uses, prevent displacement of
commercial uses, and to ensure the compatibility of
commercial and residential uses in the zone. These zones
are generally strips of land along major arterial streets
which often abut residentially zoned or less intensively.
zoned land.
Recause these commercial zones are oriented towards the
needs of nearby residential users and either allow some-
residential development or are located very near residential
zones, it is proposed that adult cabarets not be allowed to
locate in the NC1, NC2, NC3, C1, and C2 zones. Adjacent
residential neighborhoods and residents in'business
districts will then be protected from the adverse impacts
eften associated with adult cabarets. This will also assure
5hat the business districts will be protected from declining
property values and remain able to provide services to a
residential clientele in a healthy and safe environment.
ZONES
Residential development is also encouraged i.n most do'~ntown
zones, the exceptions being the Downtown Office Core !
(DOC!) zone, the Downtown Office Core 2 (DOC2) zone, and the
Downtown Retail Core (DRC) zone. In order to promote
resicential neighborhoods in the downtown, adult motion
oicnure theaters and adult panorams were prohibited in all
but those three zones when the downtown chapter of the Land
Use Code was adopted in 1985.
Having comparable impacts and being entertainment uses,
acu![ cabarets are similar in use to adult motion picture
~heaners. And because downtown Seattle is a regional urban
center where cultural diversity is more widely accepted, it
is proposed that adult cabarets continue to De permitted in
the same three zones as adult motion picture theaters:
DOC1, DOC2, with the exception of DOC2/240', and DRC. These
three zones total .approximately 130 acres.cf land area.
?ke southern portion of the DOC2 zone, (the DOC2/240') zone,
is proposed as an exception because of the hiqhly sensitive
~_-"b~c__ safety _issues surrounding this area. The zone is
2cca~ed south of the DOC1 zone and north of the Pioneer
£quare area. There are several correctional facilities near
~r _n this zone. The King County Jail (located in DOC1)
~crcers this zone, and two large work-release facilities
~witk a total Qf approximately 300 residents) are located
here,. Individuals associated with these facilities are
~f~e~ serviced by the many programs provided by human
2ervlce agencies located in the Pioneer Square area. These
· nc!ude programs for shelter, food, health, employment,
2uDstance abuse and sex therapy. Given the statistic'that
nearly 30% of the inmates in Washington'S prison system are
~e~;_..g~' ~ time for sex-related offenses, the siting of adult
~aDarets in this area poses a substantial threat to public
~afety. Adult cabarets are proposed to be prohibited frcm
~ca~ing in tke DOC2/240' zone.
Adu!~ cabarets would also be prohibited from locating in
remaining downtown mixed commercial and residential zones
and in the Special ~eview Districts (Pioneer Square and the
'nternational District), Pike Market and the Downtown
Har~orfront.
iNDU£T~IAL ZONES
industrial land in the City is a scarce resource. The intenu
~f ~he Industrial Land Use Policies is to provide some
~easure of pro5ection to viable industries from uses
csmpeting for this resource. With a limited supply of land
in uhe City zoned for industrial use, care muss be taken to
7rutecu it from uhe potential blighting influences which
cfsen accompany adult cabarets. While most entertainmenE
uses are permitted in the Industrial zones, adult motion
p~cture theaters and adult panorams are prohibited, based on
a !976 decision ~hat they be concentrated downtown. Adult
caDarets would similarly be prohibited in the industrial
zones under this recommendation.
CCNCLUSION
The most compelling argument for limiting adult cabarets is
~o reduce the potential public safety impacts. These impacts
make adult caba_~e~s
Cevelopmenz is DromoCed in combination with or adjacent cc
scm.mercia! deve!ozmens. Additionally, adul% c~_bareus are
incompatible in the ne~3bb~o~_d_~..~ercial and industrial
areas because there is a potential for a decrease in
adjacent property values. In order to protect the health,
safety and general welfare of the residential, commercial
and industrial neighborhoods, adult cabarets are most
compatible in areas where other adult entertainment uses are
located and where their impacts on the surrounding area can
be more closely monitored.
The Department of Construction and Land Use recommends the
aut~ched Land Use Code amendment be adopted for adult
cabDrets in the downtown, commercial and industrial zones.
By adopting the proposed amendment, the City will be
providing adequate locational opportunities for adult
cabarets while assuring that the residential and business
environment of the City's neighborhoods and industrial areas
will be protected from the impacts of these establishments.
.%EFERENCES
Young v. American Mini Theaters, inc., 427 U.S. 50, 49
L.Ed. 2d.3!0, 96 S.Ct.2440 (1976).
City of Renton. v. Playtime Theaters, inc., 475 U.S. 41,
~9 L.Ed. 2d..29, 106 S.Ct.925 (1986).
2 Noruhend Cinema, Inc. v. City of Seattle, 90 Wn.2nd
7Q9.585 P2nd 1153. (1978).
4 vl!!age of Belle Terre v. Boraas, ~16 U S 1, 39 L.Ed
=d.797, 94 S.Ct !536 (1974)
5 -oner, William. "U.S. Cities Face Combat in the
Erogenous Zone," P!annino, Vol.43. Chicago: American
Society of Planning Officials, September 1977.
City of Cleveland, Ohio, Police Department. Special
investigation Unic Report, August 1977.
City of Indianapolis, Indiana, Department of Metropolitan
Development, Division of Planning. "Adult Enter~air.ment
Businesses in Indianapolis: An Analysis." 1984.
City of Los ~=ngeles, California, Department of City
P!anning. "Study of the Effects of the Concentration of
Adui~ Entertainment Establishments in the City of.Los
A~nge!es.". June 1977.
= Austin, Texa's, Office of Land Development
City o=
Services. "Repor~ on Adult Oriented Businesses in
Austin." May 1986.
City of ~hoe.._x,P ~{ Arizona, Planning Department. "Adult
Business Study." May 1979.
'' =-_=t~e' r, Jerome and Connie Hager, "Zoning Laws, Not
Cbsceni5y Laws, Offer the Way to Control Adult
Enzer5alnmen5," Nation's Ci~ies Weeklv, Vo!.3, April 21,
'~80.
12 City of Bothe!l, Police Department Investigations. 1984.
City of Kent, Planning Department. "Adult Use Zoning
~t,,dv "November 1982
!4 Ciuy of Oklahoma City, Community Development, Planning
Division. "Adul~ Entertainment Businesses in Oklahoma
City: A Survey of Real Estate Appraisers." March 1986.
15 Toner, William. ReGulating Sex Business. Planning.
Advisory Service, Report No.7. Chicago: A_u. erican Society
of Planning Cfficials, May 1977.
16 Schultz, Arthur J. III. "Franklin Square: Porn Free and
Booming," Urban ~and. Urban Land Institute, August 1977.
DRAFT,
PROPOSED AMENDMENT
SEATTLE MUNICIPAL' CODE
CHAPTER 23 LAND uSE.
L~D USE CODe
(
USES: CHA. RT A
For ~-cdon 23.47.004 (Coari~acd)
ZOSrES
~¢! NC2 ~C3 C1 C"-
- Fa~t.ro<>d restaurant (ov. cr.7~0.~quarc ~'~t) CU CU CU CU CU
- 'ravcm ........ CU CU P P P
- B~,.v'~ub ~ CU' P P P
Lodging
- Hotel
- Motel
- F~d aud bre:dci'~t
8. Monu.~7 Scrvi¢~
9. Exisdnz Ccmczc.-ic~
B. Prindoal U~e l~rk/ng
C. Nou-Hou~ehold Sales ~nd Scrvic~
O[~c~
I. Cuatomer ser~dcc office
L Admmi~u-~dve office
Eate.--u~.imm cnt
Plac~ of Public Asscrnbly
Pc~on'mng ~ theater
S pec".~to r sporu
L~ and meeting
Mouon 9i~ ~ter
Aduh mo:iou
Adult p~onms
~1~ C~b~reC
X X P .P P
X X P P P
p-' p: P P P
P P P P P
X P P P P
P P P P P
P P P P P
X P P P P
X X P P P
X X P P P
X X X P P
X X X P P
X X X P P
P P P P P ;
P P P P P
.'X. P P ? p
X P P p p
X P P p p
'X P P p p
X X X X X
X X X X X
x x_ z_.
::.49.053 L~N1D USE CODE
::~u~uo~ and sh~ h~vc ~ minimum depth o~
:c c:mbmcd ~cb one or more abu~ 1o=.
~ ~c coverage o[ ~ stm~ures
b. ~c [~: o~c~ o~ ~c ~buttin~
*'men r~u [utu~ dcvclopmcat ~ t~t in
E. M~x]mum F=~dc Lcngth~. ~mum
c:cvc 3n ={:,/ation o~ one hundr~ ~cn~-Hvc
:'::: {~2~') a~ovc thc adjacent s{dcwal~ This
n~vm.,.- , "m length sh~I be m~urcd p~lcl to
::ch ar::: ~ro~ Hnc of~u d~ignated on
>lao lID~ ~ ha~ng a ~han ct~fi~don
:ne :nail aeoly m any po~ion ora farad= includ-
.ng 7ro~c::on= ~uch ~ ~alconi~. which is
':::::: ~mln fi~c:n fret (t53 of~rc:~
t. Thc maximum length or facades
::ore .n~, ctcvaUon of one hund~d ~cn~-fivc.
l.'$' ~o .'at/' 120' 1:0' 120'
, ~:m,uc
2. To be considc."=d a tm;ante facade for
thc pu~oscs o( dcte..rmining thc maximum
facade le:.zm e~tablished in sub~'~:/on BI. any
portion o( a facade above an c!:vafion o( one
hundred twenty. -five fo:: (125') which b ~ than
fi~tma fo..: (15') from a sire=: pro~rt'y, tine. shall
be ~e.mted from any similar .cordon of the
facade by at lc=st sixty ~:: (600 of famdc which is
~ct back at
pro~:-q~ linc. (£~ Exhibit 23.49.058 B.).
{Ord. 112519 { 10. 1985: Ord. 112303 {' 3(Fan).
19853
I. £~tor's .',1o~4 MaO lid is co~.ific~ a~ ~c cna o~' ~.his chamcc
SuN:hapter III Downrown Office Core
~._,-t I [,'se i:¥oYision.s
L3.49.060 Downtown Office Core
permirttq
A. ~ ~
those specifically prohibited by Section
23.49.062. ~o~ ~m~ only ~ condi~on~
~ by S~ion 23.49.06d. and p~n~ which
sh~ ~ ~alat~ by S~on 23.49.063.
B. All ~ not pmhibit~ sh~ ~ ~mined.
~ either ~nndo~ or acc~o~
(Or~ 112303 ~ 3(p~).
23.49.062 Downtown
prohibited u~es.
The following ~ shall be prohibited :m both
princSpal and acrm~o~.
located in parking B. Outdoor
C. All gen¢.'-al and h~',~, manuO,~-mdng
D. All talyagc and rcc'~.,'rling ~ except feeT. -
cling collec, ion gtation~:.
F. Adult cabarets :I.?-DOC2/240'
(Ord. 112777 ~ 27. 1986: C,~L 112303 { 3(pan).
1985.)
!3.49.064 Downtown Cffict Cort
piind0al ant :ccmssorT parking.
A. ~ncio~ U~
I. ~ndp~ ~ p~-rJng ~gm for long-
[e~ p~ng in ~ shc'~ on Map Ilia~ may
~ pemiu~ ~ con~iucn~ ~ pu~t to
S~don ~.49.066. ~n~;~
23-362
l&
DOWNTOWN ZONING- 2.1.49 ':
SuN:tmpte~: V Downtown ~lLxed Commercial
P-ar~ I Use l:h'orisious
!B.49.116 Downtown t~xed Commercial
permitted uses.
A. ALI u.se~ shall be permitted outright except
those specifically prohibited by Section
23.49.118. those which arc l~:rmirted only as con-
ditiooal uses by See. Jun 23.49.122. and parkin~
which shall be regulated by Section 23.49.120.
B. All uses not prohibited shall be pe:-mirted
as either principal or acc~,~sory, uses.
(Ord. 112203 § 3(pan), 1985.)
2.3.49.118 Downtown ~Lxed CommerdaL
prohibited use~.
The following use= shall'be prohibited a_s both
principal and acc=sory use~
A. Drive-in businesses, cxc=pt g~ s-radons
located in parking ga-ages: B. Outdoor storage:
C. Adult cabarets', adult: mot'ion
p:l.c:ure theacers and adult p~inorams;
D. All general and heavy, manuf'ac'mring u.sez:.
E. All salvage and recycling uses except ret/-
cling collection stadot~, and
F. All high-impam use:s.
(Ord. 112777 § 29, 1986: Ord. 112303 { .3(part).
t985.)
2.3.49.120 Downtown t',,lixed Commen:iaL
principal and acc~sory parking.
A_ P~nd~al Use Parking.
1. Principal u_se parking garages for Iong-
te,,rm parking in arm.s shown on Map VA' may be
permit"ted conditional uses. pursuant to Sec-don
23.49.122. Principal u.se parking garages for Iong-
te.,--m parking shall be prohibited in other loca-
tions.
2. Principal use parking garages for
short-term parking shall either be:'
a. Fermitted outright when the
garage contains short-term parking spacm for
wi'uch additional floor area is granted pu. rstmnt
to Sec'.don 23.49.126: or
b. Conditional tLscsin all otherc~es.
pursuant to Section 23.49,122.
3. Principal u_se surface parking areas
sh~ll be conditional ~ in m'eLs shown on MaD
VA,. a. nd si"~Ll bc prohibited in other Ioc'auor~
e.xc.'pt that temporary, principal u=se parking
areas may be permirted.az~con .d4.tiooal ~ pur-
suant to Section 23.49.122.
B. Accessory. Parking.
1. Accessory. parking garu§es forboth
long-term and short-term parking shall be per-
'mitred outright, up to thc maximum parking
limit esmbllshed by Section 23.49.016. Parking
clmmtiry, requircmenu.
2. Accessory su~'ac~. Parking arc~ shaLl
either be: '
a.. ~rmit~ed nummi when loCated
in arms shown on Map VA and containing
twentT. (20) or fcwci' parking spaces: or
b. Permitted as a conditional use
when located in arms shown on Map VA and
containing mort: than twenty. (20) spac,"~: 6r
c. Prohibit-~ in arms not shown on
M=p VA.. except that temporary, accmsory, sur-
face. i;mrking arc'as may be ~rmiued as a condi-
tional use pursuant to Sec~on 23.49.12!.'~
(Ord. 112103 § 3(part). 19~$.)
L E~imr'$ Hou:: M3~ VA h =x/hS~d at th~ tact oft. biz cb.note:
23.;~9.122 Downtown ~ixed Commercial
cond.iriotm, l u~e~. ·
A. All conditional use~ shall m~t th'~ follow-
ing cri:efia:
1. The use shrLI be dee:e-mined not to be
matefix0y deu'imental to the public welD_re or
injurious to property, in the zone or vicinity, in
which the property, is located_
L l.n authorizing a 'conditionil use.
adverse negative imwacu nSa¥ N: mitigated by
imposing requiremenu or conditions deem~-~'A
nec~r~/['or the pmtec~on ut'other prope.,-des in
thc zone or vicinity, and the public inter~t. The
Director or Council shall deny the conditional
use. if it i~ determined that the negative impacts
en-,ot be mitigated sa~£ac:oriiy.
B. Pri,~ncipal use parking garages for long-
term l:rark~g in arms dexignated on Map
and for .:hurt-term parking at any location.
except those permitted outfight gy Sec:ion
22.49.116 B2. may be pe.,"mip, ed as admin-
istrative conditional ~ ir the Director finds
that:
1. TralEc from the .za.ragc wiLl not have
subs'tmu=< adverse effec':_s on pm~: hour u'"~Tic
flow to azci from Inters-tree 5. or on trm~,c
culatiou ia ~e ~ ~ounci t~"e ?.rage: a.r.d
! t--ne vehic.~r enu-a_uc= to
i.-..-'.=..140 L-~N'D USE CODE
Suixrmoter ~'I l~o~a NlJ~ed Residential
~'~.49.140 -C.~n*_ral provisions.
.-'Al :rcre.-v! zoned Oo:~to,xm Nfixed Rexi-
,'.':-_.::az (C:,li~) sb~Jl be desigr~ted az el:her
Ccw::ow= .Mix=d Reside-rial/Residential
'C.',IR,'R) er Dowutov~ .Mixed Reside=dali
C ....... (DM.R/C) on thc O~cial ~-~-d U~e
.Ma=. C'-ar4:r 22.32.
· .Or-- ::2"0~ { 2(~ar:), 19~5.)
Use Prov/sion~
L~.49.142 Dowutown Ntixed Re~idend.M.
pertained ~.
::cc: ~;:::~cally prohibited by Section
:::~ '~ by S~ou 23.49.14g, ~d p~
-*'~:: ::~ ~e ~~ by ~on 23.49.1~.
~. ~ '~ not p~Nbit~ ~h=ll ~ ~~
:O~ 'IZ~02 { S(p~), 19850
L.~.49.14-I Do~rt:tow~ Dlix~ Residential
7:: fcUc'~ng ~ Ih=il ~ pmNbit~ ~ bo~
A. Cave-in b~m~ exert ~
E. 'Zu::cor
C. E:~oCs ~d besom;
D. ACul: cabarets, adult motion
::::ure :heaters ~d adulg pamormm~;
E. Li;~: ~=nufac~ng ~ in
G..:~ ~'.=ge and ~/c~g ~ exm=~ ~-
!C~ lISZT9 { 15, 1987: ~ 112~ { 30, 1986:
C~ l l~03 { 3(pm), 19850
~.49.146 . Dow~own l~4ixed R~ideatird,
prmcily, l and ac~e:~ory paxking.
a..'~.~:c=al U~e P'lrking.
I. .:~..:~l;Ta.l ~ parking gm"'agm for tong-
::.-'-~ ?-c :=on-term parkSngshnil be prm=ibited.
' F~n~o~pal ~e sun'acc parking ar~-J.s
::?.U kc prombitecL cxc~ that temporary, pr'in-
........ u-~~:~ace g armr,_in DM!K/Cra
may be ~.-'mit~ed a~ cor. ciidonal ~ pu.,-s,m nt to
Sec'don 2S'.49.148.
B. Ao:msory P,,.rking.
1. Accec~ory. parking gm'ages ['or both
long-term a~d sho~-te:-m parking shall be per-
=lJn~-'d oum_~t, whoa located on thc 5, me lot
t~c use whici~ they se:'vc, up to the mmxJmum
parking !irnit e=-tablished by S .e'-.~on 23.49.016,
Part~mg q,,~ntiry reqtd.~mcnu. Parking
providi.=g ac.:m.~ry parking for rmideatial
Iota:ed on another lot may be ~rmined ax con-
.d.4tional t~e= pun-=n_t to Sez'.don 23.49.148.
l~..rking ?~'-~.e~ providing acc--_sory parking for
aon.,'erldeadzi ~ locat~,.~A on aaother lot shall
bc proizibite~
2. Acc=sory ~u-fzce pa.6dng ace= shall
be:
a. Prol:u'oited in DNER/R a_re=:
b. Permitted outright in DMR/C
~ wi:ca co,~g twenty. (20)or Fewer park-
c. P=.-mit~-~ a~ a c=nditioual
DMR/C area: when containing more than
twenty (20) partd, ng sp=,'-_--s, p ,m~,-=,,t to Se-~on
22.49.!48.
(Ord. 113279 § 16, 1987: Ord. 111519 § 22, 1985;
Ord. 112103 § 3(pa~), 1995.)
7_~.49.148 Do~-ntown NIS.~ Residenri=l: .'
con~do~ ~
~ ~ con~do~ ~ ~h~ m~t mc foUow-
lng
1. ~e ~ ~ ~ dcm~=~ not to ~
mat~y dc~mcn~ ~ ~c pubic w~ or
Mj~o~ to pm~ ~ ~c zone or ~.m
z In. auto.rig a condition~ usc,
~V~ n~Qve ~ may ~ mid~t~ by
~g ~u~e=~ or ce=~fio~ deemed
~e zone or ~d~W ~d ~c ~:fic M~ ~e
~r. or Coun~ ~ dew/ ~e con~do~
~g for ~d~ ~ l~ on =o~er lot
D~or ~ ~c
DOW~,q'O',VN ZONING
23.49.3~0
.M~.imm'n L,~u~I~ br L~(
(Ord. 113279 § 28, 1987: Ord. 112519 § 34, 1985;
Ord. 112303 § 3(part), 19850
Z3.49.248 Interm~dorml District Residendzd,
side setback ~d
setba~ r~u~emenm.
A. Side Setback. Setbac~ ah~
from ddt loc ~ ~at ~c not
~e ~tback sh~ ~ above ~ c!cvadon of
s~-~ve f~ (659. ~e ~oun~ of ~e ~tba~
sh~ ~ de~n~ by ~e len~ o[~c
ot ~e lot on avenum, ~
iii f~t or mor~ 40 feet
B. Str~-~: P2xk Setbacks. A setback from thc
sn'=:.-', property linc sh~ ~ ~ on ~t
p~, Map ~ at ~ e!c~ou of fo~ f~t
(~. ~nc ~back ~ ~ ~ foUow~
.:O' to &5'
86' to 2¢0' (H -- 86') · 2 +
~,hcr~ H - Tou. l smu~u~ hc/ght in f~.
(Ord. 112519 §35, 1985; Ore. 112303 §
1985.)
I. Ed. imr's No,-- Ma~ IX.A is certified at the end oftl~ c~ptem
Subchapter X Downtown H. ru'borfroat 1
Parr 1 Use Prori~io~
Z3.49.300 Downtown I-~rborfroat 1, uses.
Uses that shall bc pe:-mirted or prohibited in
Dowutown Harborfi-ont I art: determined by thc
Seat-dc Shoreline Master Program.
(OrcL I!2303 § 3(part). 1985.)
Parr 2 De,elopment Stand~r~
23.49~02 Downtown Ha. rborfront 1, general
prorisious.
All us~ shall m~: thc dcvclopmcnt smndm'd~
of thc Seattle Shoreline Ma~tcr Pr, ogr~m:
(Ord. 112303 § 3(pan), 19850
23.49304 Dowutowu Hm'bor'fi'oat 1,
tr'x~£er of developmeat rights.
Ek:veiopmcnt rig_hts may not be rrm~fc.-Ted to
or from lots in DHI zones.
(Ord. 112303 § 3(part), 1983.)
23.49_306 Do~mtoma Haxborfront I,
parking.
Parking le,-,ted at or above g~dc shall be
.screened accorcii~-g to the following requixe-
men~:
A. Parking who= Ixrmirted on dry land at
stre:t level sl:mll be $~c-:=c~l ~conting to thc
provisio~ o£ Se-zdoa 2.3.49.020, S ,cr:eaing
land.sca.rring of park~g ~
B.' The ped.'.me'.-,~ of each floor o£
gaxages above r~eet level shall have an opaque
scre:n at I~---": ~.re: aad one.h~lr fe.z,~. (3%) Id_eh.
(Ord. 112303 § 2(p~-t), 1985.)
SubcMpter .X2 Dow~tow'a Hm'l>oriroat 2'
Use Prov~ioas ..
~.49_318 Dowatown Hacimrimnt Z
permit'ted uses.
A. Ali ~ sh~ be pcrmirr~ ourri~t
thOS~ which ~":. !~¢'~'.~-ily prohibited in S ~c~on
23.49.320, ~o~ which ~ l,-~:mirred ordy
condkion~ ~ by Sec?ion 23.49.324, and
ing, which :hail be regulated by Secxion
23.49.32Z Add.ir~ormlly, ~ may be fur. her
rem-iced by =c S~t'dc Short. Linc Master Pro-
gram.
B. All us~ :or s'pc'd, Sc:flly prohibked ~h~ll
(Ord. 112.303 ~ 3(pz,"0, 1985.)
~.49.320 ,3o~to~ca H~rborfront 2,
7roh,-oited uses.
Thc feLlo.<:g ~ .,daaii be m'oIdbited ~s both
prLadpnl a~d :c"~ry use~
A_ Drive-i: bt:~in~¢a, cxc:pt ga~ stador~
!3-342.21
17
Z2.49.320
L~,ND USE CODE
B. Outdoor nora~_e, e.'~c.-~t v,'ben acc?~_so,'-y
· ~.'ater-de?cndent or water-rchted ,tu=~ located in
Downtown Harborffont I or Downtown H~-
boff~ront '~'
C. Adult c~bar~T7 a~ul.~
~ic~ure theaters, adult g~'no~s;
c~g co~on ~fio~: ~d
(~& 112777 { 31, 1986: ~& 112203 {
[985.)
L.3.49.322 Downtown Harboffront L
prine%aJ and ac'~so~ parking.
A. P-..:nd~al Usc
1. PHnd~al. ,u.~ par:,dn~ ~-~--~ for
~c--g-(crm ~_nd ~bom~crm parking shall be con~i-
· _'ouM uzzm a~cordin~ ~o _%wfiOn 23.49.32~.
2. Principal u.~ sun'acs parking
sb:d/be condifior, mJ usc= in zrc=s sbowz~ o~ Map
X/~' ~d sbzl/be proizibi~,d i~ other loc~do~
:x~ -,.~ t. ~ml~orar/pr;mcipal uae
i:~ ~ ma,/' ix: i::,=-mm~ ~ condidomxl
~urnu. m :o Seu'rJou 23.4.9.324.
'.. Acc~sory park. J,'~ gara~_,~ for bmb
: :r,g-~,~:-.n a~d short-term partd, n.g shall be per-
_-.t: z. ed ouu'~ g~ht.
2. A. cc~vy surface pa.,long a~c:n shall
a. Perm/fred outri_~b~ when Ioc:xted
!n ~-?..a shown on Man XIA and conu.in/ng
.-:.'coty (20) or £cwer p~fid.ug spac:; or
b. Pc:--,~ir:ed aa a conditional use
winch loc~t~ in ~ ~bowu on Map XIA and
::nwa~ug more :~:an :wentT (20)
c, PTobibit~ in a_m_ua not showu on
:,fan ~ czce~t that temlx>mry a~rT s-ur-
/nc: 7arz:ing arc:u may be permm~ a~ a candi-
:/c~ai u.sc purs~mnt to ~cc~on 23.49.324.
~Ora- 117203 § 3(pan). 198~.)
t. ~;tot'l Not= M~p XDk h cDd.~:l at me cml of thi~ ch~otL'r.
2_3.49.324 Dowut°wu H=rboffront 2.,
coad/fionxl u~e~.
A. All cond.ifional ~ shall mc.',, thc fo[Iow-
izg
1. Tae ~ ~.i...~ be determined not to be
=atonally de~u-"aencn2 to thc pua[ic welfare ar
injurio~ ;o pro.ne.? in the zone or 'dci=ity in
which ~e pro~.-'~/i~ Ioc~ted.
2. In authorizing a conditional use.
adve."~ negative impaeu may ~ initiated by
imposing req. uixemcnu or conditions
a~--sar! for t~c prot ~e'c'~.~on of other pm~Je~ in
~e zone or vicinir! and ~c public interem. The
Dixem~.or or Couucd shall deny ~e conditional
~ h'it i~ de:c.~nine'd ~at the n .e-~dve impac:a
c~not be mid~t~ saGaf~-~or0y.
B. Pr:.'..=cipaJ uae parldmg gara.te~ [or long-
term or ~ort-te."m parking may be ~.--m/~d
conditional ~ ir' ~e Dixe~.~r fi.ud~ t2zar'
L lr-,~n¢ ~'om-the Z.a.q.gc ~ not have
subs',n.u0al advt,--,.,= c:Tcc'..~ on trax~c c;.r~alaUon
in thc =.rca around the _~a.r~_e; and
2. Thc cnunnc=s to the g~r.~gcs
Iccated ~o that they ~,'Lil not ;dLxrupt u--~c or
u-an.si~ routms; and
3. The u-,u'Sc gcn =:-azed by the _re. rage wiil
not have subsm.utial adverse cffccu on pe~ez,-
than circ'.~riom
C.
condition.al us= by Sermon 23.49.322., and
porn. fy mffac~ p~"k~g ar=u located on lots
vacant on or before January l, 1985, or on lots
wb.ich become vam~ aa a remh of = City-in.iff-
ated abatement a~on. may be l~:rmkted a_x cou-
difional use~ aczording to the following
1. Toe su=d. ard~ ~at,.~ for ga.mge~' in
· 2. -Vae lot ~s .~-':'ee~_=ed and land..~=oed
acc~rd/n~, to the l~mv~on~ of Sec6on 23.49.020,
Screening and lan ~d.~m~ing of n~'ace ~arki~g
argo; and
3. For tem;~.-.t surface ~arking
~he long-term .~ac= sb-~]! be se~ ~de for car-
pooL~ a~or~ing to ~e pmvi~ions of Se~Jon
23.49.016 B2; and
b. T'ne ~ .ermh may be 'uxue~ for a
maximum, of two (2) year~ and ~h~ll not be
re==we~ and
~ mount adeqt~te to cover thc ~ off, mov-
ing the pbysic:d e'Ad_-n~ of the park~g arm suc. b
a~ cu~ cam paving ,~d p:zrkmg v~aee m-i~ing.
when the p<=z c~t"~- Lan~pmg need not
be ~movcd when ~.- ~e."mit e:op~ ~nd
cL Si~-_..~ z: m__.ch cnt~anc= m thc psrk-
ing ~ staung '~c -.:c2ng dau: of thc pc-"unt
23-347 ~7
..... :: -~: : ' ~C)WN-I'OWN ZONING 23.49.338
b. Any blank sca=eau of the facade
shall be sc~acated by transpacent acres at least
two feet (23 wide.
¢. The total of all blank facade seg-
ment& including garage doors, shall not
seventy, perce.~.tJ~.0%) of thc sm-ce; facade of thc
structure on each street'frontage: or seventy.-
eight percent (78%) ifthe slope of the street front-
a.ge of the facade e.xc~-'~As seven and one-half
~rcent (7'/,_%).
E. Sc:'~.~ng of Parking.
I. Pazking located at or above s~r~', level
in a ga.,-a.ge shall be set,ned according to the
following requi.remen ts:
a. On Class II pedestrian stree=.
parking shall be permitted at s:a'z:et level when at
lent lJ:drty percent (.30%) ofthe SL,"~.: fronuge of
the parking are~ excluding that portion of the
~ontage o£ the frontage occupied by garage
doors, is scl:era.rated from the s'treet by other use~
The facade oCthe separating uses shall be subject
to the trnn~arcncy and blank wall standards for
Cb. ss I ix~_H.a~ stre:..,.s in :ubseztio-~ C and D.
The remnirdng parking shall be .~-ree~ed fi-om
view at s'tr~.: !evei and the str~J- facade shnll be
enhanced by' architem~ural de:-n;ling, artwork,
land.~ping, or simitaz vi.su~.[ inte,'-e~ f~,mre~
b. On street parks, parking shall not
be pc.,-m.irted at s-un:~ level unicos separated fram
the sLr~; by other uses. provided that garage
doon need not be s~parat~L
c. 'Y~e perimeter of each floor of
pm'king gzrag~ above st_,'cet level shall have an
o0aque screen at le...~t three., and one-haft fee.;
(37:-)
'2 Su~'aceparkinga~ezsshall bescreened
and lanciscaped pux~uant to Section 23.49.020.
Sc,"~.~ng and landscaping of surface parking
F. Stree; Trc~ Require."hents. Street tre.~
shall be required on ~LI s~r~u abumng a lot.
When areawa.vs arc located beneath the side-
walk. the au'c-:: trt~ shah be planted in below-
grade ¢ontaJne:'~ with provisions for watenng the
tre~. Stree; ~ shall be planted accorcLing to
The City. of S~rtle Board of PubLic Works Tre-:
Planung S tzmda, rd&
{Ord. 112519 $ 37, 198~: Orcl 112B03 §](part).
198~.)
Subckapter ~ Pike Market NIL'ced
Part I Use Provisions
23.49.326 Pike b[a. rket NLLxe~ permitted
A. Pe:'mh~ed uses wid~in the Pike Marke:
Hi.~oric DL~cric. show~ on Map X.I~,~ shall ~
determined by the PLke Pie. c: Marke; HJ.~,orical
Cornrni~riOn pucsua~t to thc Pike Maxket H. Ls-
torical District Ordinnn~. Chapter 2S.!4, S,eat'de
Municipal Code.
B. In areas' outside of thc Pike Mark,-: Hi.s-
torie ~, in the Pike Market SLLxed (PMM)
zone. as showu ou Map XIL-X. all ,u.s= ~ I~c.'-mit-
ted outri_~t e.xee~t those slx-tiffin- Ily pro,hired
by Section 23.49_338. '
(Ord. I12303 § 3(part), 19850
L F.4itor's ,"i'o~: Ma~ XiIA h coctificd at ~c e:~ of~
~.49338 ~ke ~=ket ~h~ proMbh~
pfin~p~ =d a~W ~ in ~ ouuid: of
~e P~¢ Phc: M~kct F~odc D~c~ Map
!. DNve-ia b~ia~, except ~ ~a-
fio~ l~t~ in p~ng 2. Outd~r
3. 3~u!~ cabare<s, adult motion
pic~re theaters ~d adulg panorama;
5. CcmmuMmfion
D[~ Ma= ~ ~ may ~ pm~i~ by
· e Pike M~: ~od~ Commmion ~ur-
I. E~or's Notr' Mao XLA b codified at thc end oft.his c~o~c-r.
~ E~tor's INotr T'hc E~c'r~' Cc<ir U co~lfic<l at Subude ¥li of
Titlc ~ ofthu
I EcLitor's ;lot~ 'n~e i~.lt~ Max~:t Hiatonc~l District C'r~:u. nce
ia co~afieci at .'L-~..a ~tcr ~-.~.1~ oft.~u
23-34227
[N'D~STF~L
E.
Ch~r~ .4. for $~"'~on 22.:0.012 (Continued)
Us~
H.
I.
I.
3.
4.
5.
?.
9.
10.
L
1. Plac-~ or'public zsscmbi.v.
· b. Spc-c-~tor sporr~ t'acflky.
c. Lc-:nu~ :nd mc-.~ng h.-~ll~
d. Motion picture
e. Motiou pi~urc thenter, adult
£ Adult panorarns
$- Adult Cabaret
P
P
P
X
X
2. P:r~ci;mnt sports and r~.-:ution.
Indoor
b. Outdoor
~,V'hol~.aic showroom
Miui-warehou_~
Warehouse
Outdoor s~oragc
P-~onal u-aus~o~a~ion se-~4Ces
P-~ss~ngcr tc.wrd~al
Ca~,o ~¢.--mi~zi
Tr'ansk vehicle base
Hc~top
Hcflpor~
Airport. la.~d-ba.~cd
Airpo~ ,.v~tcr-ba_~d
Rzilroad ~,itchy~rd
P,*~Lro~ci ~w{tchy*a~ wkh mccha~{zcd hump
Food proc.~-t~g ~d c~ work
~e~m'ch ~ad dev~opmcn~
W. Salvagc and P, ccycLing,
A. R~yciing collection station
B. Rcc'.!cliu8 ceu~cr
C. S~lva~c ya~ci
P
P
F-
P
P
P
P
P
P
CU
CCU
×
×
X
P
X
P
P
P
P
X
P
P
P
P
X.
×
X
P
P
P
P
P
P
P
P
P
CU
CU
CCd
CCd
'CCU
p.
X
P
P
P
P
!Gl & IG2
P
P
P
P
X
X
X
P
P
P
CU
CU
CCU
CCU
CCU
P
P
P
23-342.6 [
2O
[NDUS'TR.~L 23J0.018
standarcLs of the Puget Sound Ah' PoLlution Con-
trol Agency (PSAPCA), and shaJl be incorpo=
rated into the design and operation o£the facility;
and
d. r~ndscaplng and scr~.ning sepa-
ration fram less-intensive zones, Roi.se, fight and
glare controls, and other meastm~ to imurc the
compatibility of the u~ with thc surrounding
a.rea and tn mitigate adve;-~c impacts ,hall 1~
incorporated into the design and operation of the
facility.
6. He~,]smps may be permitted as a Coun-
c:.l conditional use in the Indus-a~ Buffer fiB)
zone according to thc following criteria:
a. Thc helistop is located to mini-
mite ;,mpacts, such as nois~ and dust impac"~ on
lots in residential zones;
b. The lot is ofsu_fficient size that the
operatio~ of the. he!istop and the flight paths of
the helicopter are buffered from the surrounding
c. Open arc~-and landing pads are
hzrd-su_ffac~
; d. The heListop meet~ all federal
r~uL,'cmcnts, including those for ~rcty, g~ide
angles and approach lanes; and
c. The hehstop is an integr~ element
of the service provided by thc business estab~h-
men; to which it is acce~ory.
(Or'd. 113658 ~ 4(part), 1987.)
I. 5~or's Note':. O~inzn~e 1136.~g w. ts :dot)te~l by ~he City
C'ounc~l on Oc:ol~'~' 1'19&7.
Sub~hapter tTI Develo~tnent Standa.r~ in A.R
Zones
~.550.016 Landscaping, curbs ~nd
$ i d e walk.s~S tan d.a.r ds on
desig~.ated struts.
U~ located on ~ wl~ich have betqa de~ig-
hated on the Ludu~uixi Su-cets Landscaping
Map~ F_xtn'bit~ 23.30.016 A and B, sh~ll provide'
land.s~ving, cu.rbs and s/dcwalk~ as outlined in
sub-~ons A, B and C beIow. (Sc~ F_~ibits
· 9~ ~;
_.~.~0.016 A a. nd 23.30.016 B.)
A. St~:t Tree~ A/I uses s~.qH provide street
tre~ a~ong t~e desi~n~tet:L strt~t f~eontage_ Street
tre~ shall ~e provide~ in the pi:rating strip
according to City of Seattle Boar~ of Public
Work~ Tre~ P!ant~g S~dards. It' it i~ not feasi-
ble to plant r,.,~'~4 ~ accorcLLug to City s',~n-
d,'Lr~s, a five-foOt (~') decv la~dsca~:l set~ack
arm shaLl be required along thc su~: property
[inc~ and s-u'~4 trce~ sh,aJ1 be planted the~. E'
landscaped ara ~s alrrndy req ,t,t~ed, the
trc~ ~h~H be plan~ed them E' they cannot be
p~ac~ in the pLr~nting s-a'ip. Tr~cs pIznted in thi~
s~back.~_,w~ shall bc at l~.st two f~t (2') from the
stre:t lot line~ -
B. Curbs and Sid~waJks. All ~ sh~! pro-
vide curbs and side~-oJks ;dong the derignated
su~:; frontage. This requ.i~ment may be waived
bythe Direct,or in consul~on with the
of Engin~:'Lng under the following co,~cLition_~
1. Full stre~, improvement wouJd not b~
practical due to'topography a.nd/or loezfioo iu an
envizonmentaJJy sensitive
2. Str~t improvements wouJd ~move
naru.ral f,'~rur~ such as ~ or d.~rupt e..xL~ng
3. Full stre:t improvemen; would
adversely r, ffec~ abutd.ug property;,
4. Toe ~ is not improved to
but i.s adeq~te for an6ci~t~ c'.m"a, ~nt ~nd furu~
ne~ds.
C. S,='~_~g. Afl outdoor ~or~5,'; including
off-str,:~, t:~t6.ng for ~o (2) or mor~ fl~: ve~-
c2eg outdeor ~or~e £or .reeydable mat~ri.~i~ and
ou~oor r~,u. ficmring, rrpa.h-~g, r~.','~ corn-
l:raet~g or ,.-'r~. 'cJ.ing ac'~vitieg ~.~l~ provide view-
obscuring ,.,_-ee'~.ng along ~ lot Li~es
the gor-~e or ac~vit'y is ~ £e~.~ (15.') above or
below the su~'~e,.,. E' the ~c zone r~ ,uirc~
mor: e.,:te-_~v~ [znds:~ing or scr~.n{ng provi-
$ioni the -_or~ extensive provis/o~ sh~2.l ~ppiy.
(Ord. H2&~'~. ~mn),
2.3~0.018 View c~rfidor~.
A. On ~ou wh/ch ~rc pa.,-fi211y wi~in ',.he
Shoreline District, except those on thc
Duw~mi-k Waterway, a view corridor shn!l be
requix~ f:r the non-~orcLine pomon, ia' 'thc
pordon c:' ~e lot in thc Shored. mc
requ/red := Vecvide a view corridor under the
Sc~rrde ffr-c~Line Master
B. Th-,' ."~.uired width of the view eor-,, :der or
corridor~ ~ be not more th.an one-hah'('/:) of
the rcquL~'~ w~dth of the vic,, c~rridor
in the a~j.=~=~ Shoreline
C. M~__-u:'cmcnt. modificna:ion or waiving of
the view ~.'-~:dor reqthrement xhali be ac=ort~ ng
to the Sk=~Lin¢ DLvtrict rne:~urement r~ufa-
tion_~ Ch:.:t~ ~.60.
(Ord. I12~..~8 ~. ~(partL ~987.)
!3-347_.71
SHORELINE DISTRICT
23.~0.668
a. Mainf~i~ views ~'om upland pub-
Hc spacc~ and
b. Ensun: su'uc:urc heights th:~ pro-
vide a transition to thc lower pier stmcrurm m
Cc His;oric C~.--u'ac'.cr Area:
c. Maintain a s-eucm.rc hd~t aloo~
"Alaskan Way frontzgc that is consistent with
~:¢xisting pier development, maxS,-ni?c~ solar
s~---s to Al~kan Way and csmb~hcs a scale of
development in ke:;ing with thc pedestrian
chax-ac:c r. and
~ Provide a tr=n4tion in hci.zht and
scale between thc watcdront and abuttin~
upbnd developmc:u
5. Public Acc-.s~. PuNic access shall be
. ~-~ui.,'~ accoroint to thc i'ollowin~ guide~Sncs to
c-,~ur= acc=ss to the wa~cr and marine activiry
without conflic-dn$ with thc operation o£ water
dc~.ndcnt u.se~
a. Public acc=ss shall be provfdcd
approximately cqu/valcnt to F_~ccn percent
(15%) o£thc lo~ coverage or five thousand (5,000)
~unr= .C-='_. whichever is p-mu:r, ~----ix as pro-
vicie~ in subsec-~Lon b3 l:~ow.
b. A.rm desi%~n:~t~ for phbLic acc'~,~.~
,hnll be subjcc:., m ~e folJowin~ cond/fions:
(I) Where thc water-dependent
· u~ will benefit fram otis compatible with public
acc-~s, such as passe~t~ lm'mi,~N. £crry opcrz-
~/on~ and tour boa~. thc acc~ ~hn'l! be pmv/du-~
in conjunc=on with thc water4e~nden~ use;
(2) Where public acc=r~s would
c~n.flic~ with thc oper'adon~ of thc water-depen-
dent ~ a_~-,. · ,"e:quix'emcnts may be mc~ ou
ake.~arivc poman~ at' thc loc
(~) Whe_~e thc entire lot is to bc
occupied by a water-<lependcnt ~ thc Council
::z=y pe_'-m.it a parm%l waiver at' thc l~ublic acce:~
(4) To quali~ as public aortas, an
=.rea sh~ll be ~Jy a_~:r'~__.sible ~-om Alaskan
Way a.no de:wly re~ated to public open spaces.
~:n'.ot-:x .,bould ~ be marc tn physically and
· n-~nli¥ lintc public ~ are~ over water with
thc caxUwe-xt ~ providing ~ to upland
(5) Thc public ~cces~ area shall
provide thc publSc with visual ~nd physic-al
.~cc~_s to thc sha~i,.'nc ~ Prv. fcrcnce shall be
given to ~grimc:~ ~ on over-water
~ p~vidin~ ~______.z.~a:num c~posu, n: Co thc bay
and m_rTuundm ~
(5) .rn::."preuve t'carure:s suck-a.s
displ~.vs or s¥-,cd=l viewing ~'aiprncnt
incorpot~c~ in public acc=s areas.
museum spac~ which is fulJy enciose~ ~ cot
count ~ pubL/c acc~ spac=;
(7) Up to ~ ~.~::t (50%')~'-~e-.
totzl pubic z~ ~ may ~ cove~ pto~d~
~t at l~ ~ ~cnt (50%) of~c ~f~c:=r of
(8} A ~on o[the
~c ~c~ m not to cx~d ~ ~<:nt (~0%).
may ~ pro~d~ at ~ eie~oa exc~ng
[~t (2~ ~ove or ~low ~c ~dc o[.q~ ~y.
~e ~ m~ ~ o~n to ~ o? ~c ~mter
~ong at 1~ ~ ~<=nt (50%) ~[~e
~ ~fly iden~able = pubic :~ac: an~ ee ~y
a~-~ble to ~e pub~m
6. ~ Co.dom ~e~ co~don
~e ~t ~umgc of~c loc The foflo~ng con-
· c ~ ~m ~e ~ ~ew comdo~ sh~il
Ala~ Way ~ong ~o~ ~ comdcn
weft = ~ ~m up~d ~
p~ ~ deve!o~mcm out into ~c o~n ~tcr of
~on ~y ~d to ~c Ol~pic Mounu~in~
po~bl~ ..
b. View co,don sh~
op~fi~ for~ of~c bay and wate~on~
a~w ~ong 3~ Way to enhnn~ ~u0~c
~ ~~don ~ou~ a &veio~
mcat hm ~ Ee ~comg~ m
Ng ~e ove~ ~ o1%~ of development over
~ Overhead weather ~rotcz:icn,
~d~ or o~cr ~te~ [eat~ may
~nd Nto ~c ~cw condor o~y ~"~cy do not
Way or on u~d ~
(~ ~3~6 { 2~m), ~9~7.)
23.60.668 Prohibited uses on ~-ater/mot lots
in the UH Enrironmenr.
'Puc t'oLlowint ~ are prohibited as prind:al
~ on wate_'5~n: lots in thc UH Environmenu
A. Re~ide.ats~l ,uxex:
B. Thc £ollo.,ving corem=, 'Gal use:s:
23-360.49 ,~=,~
23.60.668
LAa'~ 'USE CODE
3. Automotive r~u~il salts and ~.~rict,
4. Lod~ng, cxc:pt ¢:dsdng bote~,
5. Mortuary s~rvicm,
6. Officm at wharf/~a'e:t level.
7. Adult cabarets, adult motion
Diccure theaters and adult panorams;
8. Paring prin~p~
c 9. Nonhou.w_hold sale~ and service, 10. Min~-warcho~
11. Pc:~oual tran.spo~don ~rvicm,
12. Ca~o termln,l% ex,pt brcakbuik,
13. T~n~qt vehicle bas~
I4. Heliports, and
15. Airports, land-bas, ed;
C. Salvage and recycling
D. The following u~litierc
1.. Sol/d waste u'ans£er staticns,
2. Power plants, and
3. Sewage treatment plant.v,
E. General and heavy manufacturing
F. The following institutional uses:
.1. Schools, elementary or se:oudary,
2. Hospitals,.
3. ReHgiotm fac~tie~ and
4. Private yacht, boat and .beach clubs:
G. PuNic £acflitie~ or projects that are non-
wa~er-dependent exc:pt thos~ tha~ are part of'
public improvememt plan for the
adot=ted by the Couucil;
H. High-impact ~
I. Agriculture u..u= except aquac~ture:
L Groim ~nd ,firmD31' $'trllctln'~ which block
the flow of_,~nd to adjac~mt beaches, exc~0t drift
sills or other strucum= which are pan o£a natural
h~zc-~ ~r~te-~an .~s-tem: and
(Ord. 115764 § l(pm'Q, t987: Ord. 111466 §
~.60.670 P~rm/rted us~a on uplxnd lo~z in
the UH En~-onmen~.
A.. Usc~ ~ Ourr/ght. Thc following
,u:,c:~ sh~il be ~'crmi~ oust on upl~d lots az
prm~al or ~c~__-:vt,~ry u.se~ in thc UH Envi~n-
13~eI~C
1. Use~ pcrm~v_c~ outright on watc~fiont
lou in the U'H environmenu
2. Addi~on~ ~ ~rmincd ouu-i~t on
uplnnd lots:
b.
cipal usc,
ices,
(2) Warchou. s,_~
(3) Mu~Lical s~rvic~
(5) Ofl~c~ at ~ level
(6) Parking gan3c~ prindp~l
(7) Sun'ace p~/ng ;u-c~,
(8) Penonal u-aasportation scrv-
c. Insriru6o~
d. Public facilities..
B. U~e~ Permitted zz Spcci~ Uses. U~s ~r-
mined ~ sped~ ~ on watcffrout in the U'H
Environment 1o~ are ~ermin~ a~ rl:~i~ ~
oa upland lor~.
(Ord. 11346~ § 2(pan), 1787.)
23.60.672 Prohibited u~e~ on uplamd lots in
the UH Enviroument.
Uses proh~'oi~d on waterfi'ont lots in thc LCd
environment ~rc al~o pro~u'bitcd on upland la~s
unless ~pecifically permitted in Scc:iou .
23.60.670.
(Ord-. 113466 ~ 2(part), 1987.)
Part 2 Development Standards
23.60.690 Development standards for the
UH Environment.
ALI developments in the Uti:ran Hm-bor~-ant
Envfi'o-ment ~h~! m~t~er~uL c~ent~
Z, e_x~.~ wh~ the Water-depeadent Inc~n:iv¢
Development Standard~ of Sec'dan L3.60.666
apply, a~ weft za the development
a~piica~Ie to'afl e'avirunm~ata coutaine~ in Sub-
ehnsr~' ~ Gcnc:'-al Provi~oua.
(O-rd_ 113466 § ~pan), 1987.)
Residential tm=x,
Thc following commcauin.l ust~
(I) Non.household retail sa]c~ and
23.fi0.692 H~ght i~ the UH Enrimnment.
A. Watea~c:: Lorn The maximum height in
thc UH Environment sh~ bc forty-five f~: (45~
cx~;n ~n the ~-~'toric t""h~r-ac,.~ ~ whc~
m~x/mum h~t flaail be fih7 fe~ (509 ~
reinsured from .~.la~kan Way, cxct~ m m odLfic,'d
by subsection C be2ow.
B. Upland L~m The maximum bright
be fifty-five fe~. (55'), hxv/-five f~: (65% eighq'-
five feet (85% c:e-hundr~ f~: (1009, one hun-
tired twenty-fiVe f~t (12.5'), or one hundred si~rv
fe~ ( 165% aa de'_..-:vn, incd by. location on the
cial Land Use ),Lal~, Chapter 23.3Z cxc~
mo4ified ~ ~:~ ,mc'son.
C. Height E~.::pUon_~
23-360.50
23
L~ND USE CODE
;racet: :nc puatic he~th, sMe~ and wci£arc or
· .,.nc.". the pumoses o£this ordinance will be fur-
· ..~ ~ :':- .
o "by thc demolition or rcmovzl, then thc
Dire-..,or of Community. Deve!opmenr_ £ollow-
,ng revicv: and recommendation by the Board.
.may authorize ~uci-r'demolition or removal
· *.n~-d-.gr the pre:'cquisites ofth~s see',ion are ~tis-
5~ o/~ not.
:Ord. 112134 § l(part}, 1985.)
Use and Development Standu. rds
~.66.I20 Permit:ed uses.
A. All uses arc permitted outright except
:.-.asa that =e s'pecific-,.J, ly prohibited by Semion
22..a6.122 and those that are sUbjert to special
.-:..~e'.v as =ro~4cie-'J in Se~on 25.66.124.
3..:.11 uses not s~c'zSfimlly prohibiied are ver-
..--:::::~_ ~ both prin~pal and accessory, us~
1. Ga~ r~ation~..which shall be permit:ed
= :c:~ory. ~ ortiy in parking g~a'ages: and
2. Prin~=: u.~ p~r~ng garage~, which
:hail ~c =c.,-mi, 'tied only aftra'. ~.al review by thc
?r:.-ervation Board pursuant ~o Sec:ion
'_2.66.124 of this chapter. Acc,'~sory parking
garages shall be pe.~nit'ted outrighL
22.66.122 Pr, okibited
A. 1. Thc foilowing u~_z=ar= prohibited in the
::-.ur: District ~ both principal and acct~ory.
Re'~.il ice ~sl~::ma.des
Plant
Frozen food lockcr~
Automotive re'..~il sales and service.
...~.~. ...... ~_ s~ation~ loc-areal in parking
Marine rtmil xale~ and 5ervic:
Hca,tv commercial ~er4cc~
Sale. ~.wic e and rental of corn mcrcial
equipment and corLgtruC~on materials Adult_ cabarets
Adult morion ~icTure thc:~ter~
Adult Danarnms
Bowling alleys
Skating rinki
Communic-ation utilities
Adveaising signs and off-premises
eltra:canal signs
Trzn~=orznuon facilities, except pas-
'.engcr
Outdoor ~or~g:. 2.3-366
2. Commcr:ciai uses which ar: vchic:e-
oric?.t:d shall be pronibite~ in ~c ::r:a 06 thc
Distric~ idcnti~ed on Map B.~ Such uses include.
but are not limited to me following:
Drive-in businesses, except g~s sca-
dons acc'-'mry to pa.rtcin~
Principal and accessory, suffac: park-
ing are~ not in ex~enc: prior to Augtm 10.
1981:
~o~c~.
B. All gene,--al and hca'O/manu£ac'mfin§ uses.
salvage and recy. c!ing ~c:s except rec'~!cting col-
lection stations, and all hi~-impac': uses arc pro-
kibited both as princip.zl and ax acc~..sory'usc:s.
C. Diszauraged Sa'ccc-level
'l. 'Pne following uses are discouraged
seres: leve! in thc arm c~mignate:t on Map Dc:
a. Any use occup.,4ng more than fi~y
pc~snt (50%) ofnny block ~antage:
b. Retail sales and se,--v'icm over :bees
thousand (3.000) sqtm. rt fee: and all other uses
over ten thou_',and { 10.000) square
c. Admiui_,'tntive o:'iicm and medi-
c-al ~r-4c~ which compri_se more tl~n twenty.
pea-cern (20.%} o£zny block frontage:
ck Parking ganges which are not
accmory, to prefe:'rea- use=.
2. Discouraged ~tmm may be approved by
the Community Development Direr, or atker
rev/ew and recommendation hy the Prexe~tion
Board if an applicam ~monxtrates tMat me pro.-
po~eci use i~ compatible with ~ p~:~..--ret-t at
street level.
D. Approved, rr ~r~t-tevet ~ in the =rea des-
ignated on Map iD: sh. all be sui~jeo, to the follow-
ing conditior~
1. No use may ocru!~y mona than
pe.'x:ent {50%} of t~e xu'e:~-leve! t'ronmge
block that i.~ rwent-y, t,hou, s~nd {20.0001 square
feet or more in
2. Humanser'v/~us~and pe.'zonalserv-
i~ extabii~hmcnm raca ax hair curung and tan-
ning salon.x, may not e_xc"=~ twenty. -five
{25%'} of the totrd rc~...-level frontage of any
block t'ronc
E. The following us~ shall be prohibited at
~m::t level in the m"'"'~ de=i_~nated on Map Da:
Wlmlexale showroorn~:
Vocational a. nd ,qne ~
Radio and te!:-,4_.5on ~u~o~:
Ta.'tide:-m.v shol:~_
UphoLstery. ~-'~.i~ ~ m c n t~.
SPECIAL REVIEW DISTRICTS 23.66.326
1. Gas stations, which arc not pc:'mincd
as principal uses and arc pertained as acc.-ssory.
uses only in parking garages:
2. Surface parking area& which are not
permitted as principal uses but may be permitted
as accessory, uses pursuant to S~tion 23.66.342
of th.i.s_ Lan.cl.. Use Code: and
.3. Principal usc parking garage& which
may be permitted only if approved ahcr special
review by thc Board pursuant to Section
25.66.324 of this Land Usc Code. Accessory
parking garages shall be ~:rmittcd outrig.ht.
(Ord. 112134'§ l(part), 1985.)
23.66.322. Prohibited uses.
A. The following ~ shall be prohibited as
both principal and accmsor'y.u_w.s in thc cntia'c
International Special Review Districu
Adult motion picture theater~
Adult panorams
All general and he'aW manufacturing u.ses
All high-impact us~ ..
All salvaie and fee'/cling uses. except recy-
cling collection stations
Automotive rc',.ai.l sales and service
Bowling lanes
Communication utilities
Sales. service and rental of commercial
equipment and construction materials
Drive-in business~
Frozen food lockcr~
Heavy. commercial service~
Marine retail sal~ and services
Medical testing laboratories
Mortuary serv~cex
Motct~
Outdoor storage
Plant nurseries
Re'mi ice diapertsaries
Shooting galleri~
Skating rinks
Mobile home parks
Transportation fadlities except passenger
terminals
Animal ,_~ trice&
B. In addition to thc prohibited u.scs listed in
subsection A. light manufacturing uses that
occupy more than ten thousand ( I0.000~ ~un. rc
feet arc l~rohibited in that portion of the lnte,'ma-
tional Sl~ecial Re'few District west of thc Inter-
stntc 5 Freeway.
C. All light .m..anufacmring uses arc pmhi'
ired in that portion of the District in the IDR
Zone.
(Ord. 112777 § 34. 1986: Ord. 112519 § 43. 1985:
Ord. 112303 § 8. 1985: Ord. 112134 § lfpactL
1985.)
~.66..324 Uses subject to special review.
A. The foUowing u.~ shall be subject to spe-
rial review by the Board:
Fast food rcstaurant~:
Hotel:
Planned community'developments:
· Principal u~ paricing garages:
Street-level ~ subje~: to sp~ial ~vicw
~ ~rovided in Section 23.66.326 C.
B. Nature or' Revieu.
1. The evaluation ofapplications for uses
subject to special review shall be based upon the
~ro~osal's impacts on the cultural. ~onomic.
social, historical and related characteristics of the
International District particularly those
te.qstics derived from its Asian berling-.: existing
and potential residential uses: the 9edcstrian
environment: traffic and parking in the Distri~:
noise and light and glare.
2. In reviewing applications {'or prin-
cipal-use paxking garage& the Board shall con-
sider the potential of the proposal to $e~,'e
particular para/ring needs of the Internationa.l Dis-
trict The Bom'd shall encourage particil~ation in
an arm-wide merchants' parking assexiation.
C. The Board may recommend to the Dice-
tot that an application for sl~ecial review be
approved, a=proved with condition& or denied.
{Ord. 112303 § 9. 1985: Ord. 112134 ~
1985.}
~.66.326 Sore-et-level use&
A. To r~n and rtreng~hen thc ,~ng St~::
business co= a~ a pedestrian-oriented re:ail
shopping district, street-level uses shall be
required on stme~ dm'ignored on Map B.' the
International District Retail Core. Require=
nrcet-leve! use: shall ~a~fy. the standar6a ot'th~
~ecfion.
B. Prc!~rc.'.ce shall be given to pedestrian-
oriented re~l shopping and service business
uses that arc highly ~Ssible or prominently dis-
play mcrchandLse in a manner that conmbutm
color and ac:?,-itv to thc strce~cnpc, inclueing
but not limitc: to:
Appa. re! ',hops ..........
BakeN~. .........
23-375
2.5
DEr L-E",CT3ONS 23.84.006
"Block f~c:." ~ "Block fronL"
"Block froot" mc:sm thc ~oncsgc o£pro~:y
along onc (1) s/dc o£a scrc~.r bound On thru. (3)
sides by thc ccntc~Jnc o£ planed s'u~c~ Zi~ on
thc £our~ side by an ~tlcy or ~ pro~."W, tines
(Ex. bit 23.84.00~ B).
"]~o~rdcr" me.z~ a I~."~on who rc~ a rOOm
or room_~ ['or lod~::g purposc~ within a dwe~ng
unit on not l~s th~n a monthly basis.
"Bom'din§ house." Sc~. "Residcnd~.l u.~."
"Br~-~pub.' ~ "Eating and drinldn~
"Bridge, a~-'~s," See. "Access bddg:.'
"Building." ~ "S~rucmrc."
"Bus base." S~ "Tr-,m_spo. r~fion fac{i/rT."
"Bu.~ness disu-i~ id¢ufi~c~don si~n"
~n off-prc~k-~ .si~ which ~ivcs thc nn.mc of
busin-~ dis~ct or indusu-ml pm-k ~.nd which
m~.v Iht the n~mcs of individuzl businesses
wi,h~n the di.va'ic~ or
"Businm~ ~-mb~hmcnt" m~ ~n ~onomic
or iv ~'-&udonzi uui~ o~:~,~?cd £or thc purposes
¢ooduc~ bu~,~c:~ z~d/or prov{din~ z
In o~ :o bc coasidcrcd a ~-p~:c bu~nc:~
c~.~bL~hm'.nT, z bu~nc~ ~h~tl bc pby~c~y
m-~tcd from other businesses. Busin~ which
shzrc cor~mon f~-iides, such ~ rcccption
checkout ~ds, ~md $im~l~r £eatur~ (cz~t
~h~'cd budding lobbies ~.nd bathrooms) shah
considcr:d one (1) bu~inc.~s es~blishmcnL
cxc:pt when ~cy arc lo,ted in ~ b~in~
incubator. A b~n~ ~b~shmcn: tony
lo~t~ in mo~ th~n one (1) ~ p~d~
m~ Thc ~~ may ~ i~t~ on ~ ~n~c
la: or on adja~t 1o~ A b,,~n~ ~b~hmcnt
rosy ~ ~ cornmeal ~~ i~tu-
~o~ or ~y o~ v~ of no~dcn~ ~.
"B~n~ in~b~ton" S~ "Non-ho~chold
~ and ~".
"B~ ~" S~ "S[~ b~."
hold ~ ~d ~c~"
(O~ 11526~ ~ ~I, 1986; ~ 112777 ~ 37,
Or~ 112330 ~ 12, I?Sfi; O~ I12503 ~ I~
Or~ 111926 ~ 6, 1984: ~ II1190 ~ 42. 198~;
O~ ilOSTO ~ 13, 1982; O~ 1103~1 ~ l(p~),
1982.)~
cffc{"~vc off June f. t9S6: ',A~ Or~c'c 112TTT h '"c
a~i~.znc:.
23~4.0~6 ~C."
"Cabaret, adul=. See "Places o~ Pub
I..~..dhor"l Note: OvdJn~nt'~ 112TT7 ~ ngned by t~c M~v, or on
Apnt 10. 1986 and betmmc cffc,~JVc anJunc 9. 1986. C)vdinan,c~
112320 w.~ s,i:pccL bT' l.~c Mayor on Mzy 9. 1986 and ~e
23-424.1
s~orc~ include hut arc not liraS:ed to grocery.,
hardware, ch'nE, and va~ie~ ~orc~.
4. ~S~ f~ zorn" m~ a ~r-
son~ ~d ho~hold
~n w~ch [o~ ~ch ~ ~a~, de~ m~ d~
b~ go~ whole p~ ~d o~er ~dy-t~
en~ fo~ ~ p~p~ ~d so[~ gcne~y for
consumption on o~er premi~ S~ty pack-
a~ fo~. ~d/or b~k it~ ~ch ~ ch~.
may ~o ~ sol~ ~d
~ca ~cd for ~fing for ~e imme~ate con-
sumpdou of fo~ sh~
hunted (3~) ~u~
hundr~ (3~) ~ f~ ~ devoted to ~ting
space, ~e en~e u~ sh~
and ~n~ng ~b~hment
"~ersonal transpo~atiou se~ices."
"Fimhe~ roo~' me~x any uou-hofzon~
rood
"Pla~' m~ i ~ly ~sible no,ce at
l~ eleven (II) by
~ h~n~ w~ch
of ~ven~-five f~t (~5~ by ~ of no~
~s~ ac~.
"P~zc~ of pubic' ~mbI? m~ns ~ enter-
auhlefic, or o~r even~
~to~ ei~er in or out ofdoo~ ~pl~ include
but ~ not ~mit~ m motion pi~ and ~r-
~d l~c ~d m~g ~11~. Placm of public
~embly ac~ to i~mfions or ~o pubic
V~ or phy~ sh~ not ~ co~der~
c~mme~ ~
~ "Cabaret, aduY~
pZace of pubic ~s~bly, where
Z~cens~n~ as ~ "aduZ~ .~Certa~en~
~r~ses" .~ requ~r~ ~ SHC 6.270.
~la~ o~ pubfic ~mbly
d~ for ~e
o~cr C~ ~ ~t mo~on
~."Motion picture theater, ;dult"
m~ a ~1~ orpub~c ~mbly in
enc~o~ b~l~=; motion pi~
~nt~ ~ch
~ion. for o~fion
(
~EYINITIONS
23.84.030
a. 'Sp~'iHcd sexual activities":
(1) Human gcniu~ls in a rotc of
sexual stimul-~don or amusah
(2) Ac~ of human masturbation,
s~xu. al inter~our~e or sodomy;,
(3) Fondling or other erode touch-
int o£ human genitals, pubic reg/on, bunock or
female breast.
b.."Six'dried anatomical are~":
(1) Less than completely and
op~lucly covered:
(a) Human genitals, Pubic
(b) Bun~k. or
(c) Female breast below a
poini imm~-.~L'~tdy above the top of the zrcol:~ or
(2) Hunch m,!e gcniurds in a di~
c~mibly tur~d s'~te, even if completely and
op~ucly covcrc~L
~-~:'l~noram, adult" means a de'~ce
wh/ch c~h~bks or displays for ob~'rv~don by a
l~u-on a pic'~u'~ or view from Blm or vidco~l~
or ~ m~-n.s wh/ch ~ dLvdnD, i~hcd or ch~-
a~-d by an empb,4~ on manet dcpic~n$,
d~cribin$, or rotating to "specified sexual
acfiv~fic~' or ~.s~-dHcd ~n,mm/c~l ar~.s," as
defined in sub~.~'~on ~ 3.
~'~.'~-~pant sports and recr~on"
mc:ms an en:_--~inment us~ in wh/ch facilk/cs
for cn~..~n~ in spore ~d recreation are pro-
v~dc~ A.ny sp~'~tors ar~ inddenr~ and am not
char~ ~;~on. Th~rc ar~ two (2) t)~:s of
~:~rd~an; ~<ms and m'a'c~don uses -- indoor
and outd~n ~..r~c/pant spore and rccr~fion
~ zcc~sor.~ to institutions.or to.pubflc par~
or play~ou~d~ ~ not be considered corn m
~ '~_rdd~t ~r~ and
indo~ff m~--~.~ a p~.iciI~.nt spore and recrca-
don u~ in which thc sport or r~:r~don is con-
duac~ wi~n an cnclc~d ~-ucrur~.
include bus a-c not ffmitcd to bowUng nllcys,
roUcr and i~ :k~r~g rink& dnnce h~ils, ~cquct-
b~l coutr~ ~hysk~ fimcss c~nt~r~ and
~nd vidcc~_~.: partors.
b. '.~_rfidpant sports and rccr~don,
outdoor~ m~.2~ a p;u"ddpant sporu and rccr~-
don u~ in w~ch thc sport or recr~don is con-
ducked ouulde of an enclosed structure.
~pic~ ind'.' ~e ~nni~ courts, watcr ~dcs. and
driving rang---
5~.~?:.-.%,--ming arts ~emer" means a
pl~-~: of pubic ~mblv imenct~ md expr-~.sly
d-~igned for ~ vrt~-nta~on of live perform-
znc'~s o£dr,..m~a..-d~acc and mt~c.
67_."S;.=:c'..~tor room facility." means a
pl2c'= of pub;.Jc ~mbly inu:ndexi and exl~r'mzly
23-436.7
23.84.030
L.adNrD USE CODE
· dc~i&ned for %be prms~-'~t~on o£ ~ cycle,
such ~ z ~um or
"Plann~ comm~U dcvclopmcn~ (P~)"
m._~-~ a ze~nt pr~ w~ch au~o~ cxc:~
~o~ ~om c:~n devc!opmcnt r~ for
raa~i O~ ~¢ ~: o[~d in c:~n do~-
~ou~ a pubBc pr~. ~d r~ Coun~
"Planned residcnd~ development (P~)"
m~m a zomnt mx~ wEch ~o~ for
Hc~b~w in ~e ~upm~ p~ccmcn~ s~c ~d
~ o~ar~ on ~ f~ly ~c ~ o~l~ A'
P~ ~ dcvcio~ ~ ~ ~in~c cn~rL ~ ~ pu~
~c pr~ w~ch ~co~ d~ rc~cw.
'?laC' m~ a m~p or
lu~o~ sho~n~ mc ~sion of a ~ or
p~:! ofl~d iam 1o~ bl~ ~= ~d ~c~
or o~cr ~om ~d deC,dom.
co~n~ of a 9ubEc o~
in~c~ty deve!o~ ~ ofdo~to~ w~ch
1o~ m ~c a f~ for ~oun~B dcv~-
c~re adeq,~t~ i~a~ a~ ~ ~o=s ~d
m~jor ~n~fer ~om~ to inhere ~c conve-
mcace and co~oa of ~ Hdc~
"Po~" m~i ~ cie~ plaffo~ ex,end-
or ~ ~o ~e ~und pm~n~ acca= by
~ma may ~ con~ca~
"D~a")
"Power pl~" ~ 'U~."
~h~ f~i~h a b~ for ~c a~pm~ or
ho~ one (1) or.mom
~n~acd ~m ~y ~p~ ~~ ho~inB
"~n~p~ usc" m~ ~c m~ ~c con-
duped on a lo~ dom{nant in ~ ~cnt or
p~o~ to o~ ~ w~ muy
loL
"Priv-a~c club." S~ "Ias'dru6on."
or an z~ ~on of~e P~u~ ~-c,
d~ or ~d for ~e shd~r Or no~: o~
ve~cl~ o~ed or o~ by ~c ~a~
~e p~dp~ ~r~ (S~ "~")'
'~te ~ble o~a ~a~." S~ "0~ ~c~,
foBo~as commc~ ~:
!. ~c~n~ or f~ for hum~ con-
~mpdon;
2. C~om ~d'~wor~
"~b~c a~um" m~ a pubic ~3cSt ~-
~ co~ o~ ~ inO~r pubEc o~a ~c=
w~ch pm~d~ oo~d~ for ~vc ~m-
~oa~ acti~ and cvc:~. ~nd for public
~athc~n~, in an arc~ protc~cd from
w~, ~d ~n~ ~c~ ~mc~ ~
"~bEc ~neS[ f~-e" m~ ~c~H~.
o~ ~d w~ ~ q~r~ for ~ ~
of ~t or ~ a~ ~ zo w~ch ~a~
~ by z gove~mca~ ~¢n~ ~or ~ by
g~ pub~
'~bEc cc~v~on c~:~ m~ a ~ubUc
f3~i~/ of ~ hua~ ~o~d (3~,OOO)
~u~ f~ cr mo~, ~c ~:~ p~
which is to pro~de f~li~es for
a~oa~ and intc~on~ convca~ons
w~ ~ o~ o~ er ~~ by
pubic ~nv~5on ~a~ ~v include ~ such
~ shop~ ~ ~ ~ ~~ w~ch
~y ~ o~ o~ed or ~c~ by
~ of gca~- or ~-p~
"~b~c ~ m~ ~ pu~c proj~ or
fz~.
"~bEc ~" m~ a f~ o~ o~-
p~ Eov~mcnt ~;~ ~ac C~
"~b~s ~col ~ ~n~~ m~ ~y
~ ~ ~d dcv~ for ~ by or for
Pm~ pu~c ~oo~ ~ ~c c~vc
of ~c o~ c~ ~ ~ ~p~
23~36.~
28