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Queens. Collaborating with the city planning department,
<br />Giuliani issued a 65-page proposal last September that
<br />recommended prohibiting sexually oriented businesses from
<br />locating within 500 feet of residences, schools, houses of
<br />worship, or each other. Giuliani also proposed a moratorium,
<br />which ends November 30, on the opening of any new adult
<br />businesses while the proposals were being considered. City
<br />council president Peter Vallone soon produced a separate
<br />proposal, and both met to work out a compromise that has
<br />become the basis of discussion by the city's 36 community
<br />boards throughout this year.
<br /> While their recommendations have varied, they have leaned
<br />heavily toward tightening the proposed restrictions, in some
<br />cases to 1,000 feet. The final proposal, however, stands by the
<br />500-foot spacing. Marilyn Mammano, the city's director of
<br />zoning and urban design, says this plan provides for 492
<br />locations citywide for adult businesses. She notes that tightening
<br />the rules further might jeopardize the constitutionality of the
<br />proposed ordinance by making it too difficult for adult uses to
<br />find suitable locations. The proposal also would limit the size,
<br />placement, and illumination of business signs on adult
<br />establishments and limit them to 10,000 square feet. It also
<br />would require existing nonconforming businesses and signs to
<br />terminate within one year, with certain exemptions and
<br />extension procedures.
<br /> Interestingly, of the 177 existing adult businesses, 26 would
<br />be permitted to continue in their present locations, 17 of them
<br />in Manhattan. Overall, about 11 percent of the city's land area
<br />would be available for adult uses, but the spacing requirements
<br />would limit that area in Manhattan to 3.9 percent, with higher
<br />percentages in the four other boroughs.
<br />
<br />Shifting Gears in Columbia
<br />While New York City has debated its proposed new ordinance,
<br />Columbia, South Carolina, has both appealed the rejection of
<br />its ordinance and adopted a new one to take its place. This dual
<br />stance has left the city in a precarious legal position as it seeks to
<br />respond to public concern about four adult businesses, two near
<br />residential areas.
<br /> A previous ordinance requiring 1,000-foot separation of
<br />adult enterprises from churches, schools, [~arks, day care centers,
<br />and residential neighborhoods was overturned in state court.
<br />Circuit Judge Walter Brisrow ruled early last year that the
<br />ordinance effectively prohibited such businesses from locating
<br />anywhere in the city. Two clubs--Chippendolls, which features
<br />nude dancing, and Chasers' Mags-N-MixersAhad been ordered
<br />to close. The city had modeled its ordinance on that of
<br />surrounding Richland County, but the county has far more land
<br />available under such restrictions. The city is now appealing its
<br />case to the South Carolina supreme court.
<br /> In the meantime, however, it had an unenforceable
<br />ordinance. While the city planning department recommended
<br />loosening the restrictions to 750 feet, the planning commission
<br />last December went further, recommending 500 feet, slightly
<br />more than one city block (450 feet). The city council adopted
<br />the ordinance on January 18. Unlike in New York, however, the
<br />planning department will not reveal the number or location of
<br />available sites this new rule creates, citing the current litigation.
<br />
<br />Location, Location
<br />Mammano's concern about the constitutionality of the New
<br />York ordinance relates to a tricky issue of balance that has
<br />plagued many communities across the country in recent years:
<br />
<br />How much space is enough to accommodate adult businesses
<br />without letting them overrun the community--or be perceived
<br />as doing so? That concern arises from a series of U.S. Supreme
<br />Court cases that are worth reviewing briefly.
<br /> Ultimately, the llne of relevant cases goes back to Young
<br />American Mini Theatres, Inc., 427 U.S. 50, 95 S.Ct. 2240
<br />(1976). The city of Detroit became concerned in the early
<br />1970s about the rapid growth of adult bookstores and theaters
<br />in depopulated and riot-devastated areas. From just two such
<br />businesses in 1967, Detroit by 1972 counted 35 topless bars, 25
<br />adult theaters, and 21 adult bookstores, many clustered on
<br />major thoroughfares. To cope with this influx, the city passed
<br />an ordinance that defined adult bookstore, adult theater and
<br />minitheater, and Group "D" cabaret, added these to the list of
<br />regulated uses, and prohibited them from locating within 500
<br />feet of residences. In addition, adult theaters could not locate
<br />within 1,000 feet of any two other adult establishments. Two
<br />adult theaters challenged the ordinance and, in one case, the
<br />federal district court struck down the spacing requirements.
<br />Detroit responded by amending the ordinance to prohibit
<br />location within 500 feet ora residentially zoned area. In the
<br />other case, however, the Sixth Circuit Court of Appeals struck
<br />down the entire ordinance.
<br /> In a consolidated appeal, the U.S. Supreme Court held that
<br />Detroit's zoning did not total{y suppress the opportunity for
<br />free expression of the type found in adult theaters and,
<br />therefore, the zoning was valid. Moreover, it sanctioned the
<br />distinct classification of adult theaters within the zoning
<br />ordinance as a special type of regulated land use. Detroit
<br />succeeded because it convinced the Court that the
<br />concentration of the regulated land uses posed a specific threat
<br />of deterioration to surrounding properties.
<br /> In subsequent years, a plethora of communities nationwide
<br />sought to Copy Detroit's ordinance, assuming i.t was the magic
<br />bullet that would deter the concentration of adult uses while
<br />passing constitutional muster. The Achilles heel for many was a
<br />failure to consider a significant footnote in the Young decision:
<br />
<br />The situation would be quite different if the ordinance had the
<br />effect of suppressing, or greatly restricting access to, lawful
<br />speech. Here, however, the District Court specifically found that
<br />the ordinances do not affect the operation of existing establish-
<br />ments, but only the location of new ones. There are a myriad of
<br />locations in the city of Detroit which must be over 1,000 feet
<br />from existing regulated establishments. This burden on First
<br />Amendment rights is slight. (427 U.S. at 71, footnote 35)
<br />
<br /> The upshot of the footnote was a strong hint that no specific
<br />spacing requirement would pass muster as such, but that the
<br />real issue was whether the spacing requirement--or any other
<br />method of restricting the location of adult uses--allowed
<br />adequate Iocational opportunities for adult uses so as not to
<br />suppress protected free expression.
<br /> Over the next decade, many cities that had adopted what
<br />were, in effect, copycat ordinances encountered consritutlonal
<br />difficulties in court, often seeing entire ordinances struck down.
<br />Often, the simple reason was that their ordinances, unlike that
<br />in Detroit, had left no adequate roomAand in some cases no
<br />room at all--for adult uses to operate anywhere within the
<br />jurisdictional limits. The issue finally came to a head once again
<br />in Cio; ofRenton v. Playtime Theaters, Inc., 475 U.S. 1132, 106
<br />S.Ct. 106 (1986). Renton, a Seattle suburb, had stated-its
<br />findings of potential blight on the basis of a Seattle study that
<br />led to an ordinance substantially different from the one adopted
<br />
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