Agenda - Planning Commission - 08/01/1995

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Page 8 -- July 1995 Z.B. Adult Entertainment -- Did Advertising Restriction Violate First Amendment? MD II E~tertainment Inc. v. City of Dallas, 28 F. 3d 492 (Texas) 1994 The city of Dallas, Texas, amended its Dance Halls Ordinance to create a new class of businesses called "Class D Dance Halls." The ordinance defined Class D dance halls as places that permitted semi-nudity or simulated nudity or that were advertised "(i) as topless; (ii) as a gentleman's club, bar, or saloon; (/ii) as adult entertainment; (iv) as X-rated; or (v) by any other term calculated to attract patrons with nudity, semi-nudity, or simulated nudity." The ordinance restrictively zoned Cfa: s D dance halls so they could not operate within 1,000 feet of a school, church, park, residential area, or another Class D dance hall. Any existing nonconforming uses had to stop operating. MD II Entertainment Inc. operated The Fare West, a topless dancing club. The dancers "simulated nudity," which meant they wore opaque coverings over their areolae and opaque bikini bottoms. This exempted The Fare West from restrictions in the city's Sexually Oriented Business Ordinance, but put it in violation of the Class D Dance Halls Ordinance. MD II sued the city, saying the ordinance violated the First Amendment to the federal Constitution. The court upheld most of the ordinance, but struck down the provision concerning advertising because it was a content-based restriction on commercial advertising. The city appealed, arguing its ordinance was a valid regulation because adult entertainment establishments brought down property values and increased crime. DECISION: Affirmed, in favor of MD ti. The provision on advertising was a content-based restriction on commer- cial advertising -- the forbidden content was expressly stated in the terms of the ordinance. Businesses that used certain terms in their advertising had to close and relocate; businesses which did not use those terms were unaffected. The city's argument that the provision on advertising protected property values and lowered crime rates was not persuasive. The city did not prove that adver- tising a place as a gentleman's club lowered property values or increased crime. Because the city could not show a link between advertising and property val- ues or crime, the advertising aspects of the ordinance were an unconstitutional regulation of speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (]980). Editor's Note: Due to an omission in the court's opinion, a summary in our April 1995 issue (Nonconforming Use--Landowner Wants to Start Pig Farming Again) gave the impression that the landowner, Villari, could no longer farm pigs. However, the court's decision that Villari could not rebuild a nonconform- ing fence limited only his ability to expand. Other parts of his property did have fencing and Villari had pigs there. Many thanks to Villari's attorney, Bruce C. Hasbrouck of Hasbrouck & Uliase, Woodbury, NJ, for this additional information.