Agenda - Planning Commission - 12/06/2007

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(j /\ i . \ } i 1\ \, iI " 11 !I ij L !i ( ! -_., November 1, 20071 Volume 11 No. 21 required the removal of doors on peep show booths, and limited adult entertainment establishments to areas zoned for industrial use. The stated rationale for the ordinance was to combat negative secondary effects-namely, crime, disorderly conduct, blight, noise, traffic, property value depreciation, and unsanitary behavior-that typical were found in and around adult businesses. Fantasyland Vid- eo, Inc. operated an adult arcade, bookstore, novelty shop, and vid- eo store within an unincorporated area in the county. Fantasyland initiated federal and state constitutional challenges against the new ordinance, seeking declaratory and injunctive relief. The court ultimately upheld the ordinance requirement that adult establishments close between the hours of 2:00 a.m. and 6:00 a.m. and its restriction on doors at the entranceway to private peep show booths. Fantasyland appealed to the court for relief from that judg- ment, which the court denied. Fantasyland appealed again. Decision: Affirmed. The 9th u.s. Circuit Court of Appeals found that the relevant in- quiry in this case had three parts: it had to "serve a substantial government interest, be narrowly tailored to serve that interest, and allow for reasonable alternative avenues of communication." The ordinance could not be a complete ban on a protected expres- sion. Further, the ordinance had to be content~neutral or, if con- tent-based "with respect to sexual and pornographic speech," the dominate concern had to be the secondary effects of such speech in the community. When enacting a secondary effects ordinance, a municipality had to rely on evidence that "demonstrate[d] a connection between the speech regulated... and the secondary effects that motivated the adop- tion of the ordina,nce." Here, the 9th Circuit found that the county had relied on: studies and reports, reported court decisions, and an- ecdotal testimony to establish a correlation between adult establish- ments and negative secondary effects. Based on this evidence, the county could reasonably infer that restricting the hours of operations for adult businesses would have the purpose and effect of reducing crime, disorderly conduct, traffic, and noise during late-night hours. Even if it accepted the county's claim that the ordinance was aimed at controlling secondary effects, Fantasyland argued that the county failed to show a nexus between the peep show booths and 3 39