Agenda - Planning Commission - 12/07/2006

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~"'Y"~ Regulating Sex Businesses By Connie B. Cooper, FAICP, and Eric Damian Kelly, FAICP Sex sells, but at the wrong time and place and in the wrong manner it causes communities across the country major headaches. Almost a decade ago, we found out how "hot" a subject this was with the popularity of our planning Advisory Service Report, Everything You Always Wanted to Know About Regulating Sex Businesses. But rather than summarize the information from that report, this issue of Zoning Practice will focus on the sex busi- nesses issues that remain problematic for communities today. The article will offer our insights on the regulation of sex businesses from visiting more than 150 of them in cities as large as Memphis and Detroit and in small towns and counties in 10 states. LEGAL CONCEPTS: THE BASICS First Amendment Protection "Non-obscene" adult media, movies, and per- formances, unlike many other land-use activi- ties, enjoy a certain amount of protection under the First Amendment right to freedom of expression. When a local government regu- lates an activity protected by the First Amendment based on the "message," the burden falls on the government to justify such action. The challenge is how to regulate sex "businesses without reference to the very con- "'tent of the media or pefformance that defines It as sex. In fact, discerning content is the "" major method in differentiating between an adult bookstore and a Barnes & Noble, for ~xample. The Supreme Court has held that \'''here the purpose of the regulations is to -'limit or mitigate the adverse secondary "effects of a sex business, the regulation will ~etreated as content-neutral even though it ~efines the regulated businesses, in part, jhrough reference to the content of media or " performances conducted there (see Playtime Theatres, Inc. v. City of Renton (475 U.s. 41, 106 S. Ct. 925, 89 L. Ed 2d 29 (1986)). . --:e:r._-:~~.-;;::-_.--- - What is Protected? The First Amendment protects communication. Thus, non-obscene books, magazines, videos, CD-ROMS, and motion pictures are protected. The Supreme Court has had more difficulty with nude or topless dancing, holding in prin- ciple that acts are entitled to protection under the First Amendment, but has also upheld several restrictions on them. Other federal courts have looked to the general principles set out by the Supreme Court, rather than to the fact that in some instances the Court has upheld community-wide bans on such per- formances. They have struck down many local attempts to ban adult-type dancing, while also upholding a number of restrictions on how and where performances can occur. A number of goods and services offered in sex businesses are not protected by the First Amendment. For example, sex toys and novelties have no such protection, but com- munities should not ban them simply because it might be lawful to do so. Courts have gener- ally held that there is no Constitutional right to a massage, upholding limits on sex mas- sage parlors and other enterprises not oper- ated by licensed or certified massage thera- pists. Escort services, bathhouses, "encounter" centers, lingerie modeling cen- ters, and nude photography studios also fall well outside the scope of protection of the First Amendment. Secondary Effects There are two generally accepted types of sec- ondary effects that provide a Constitutional basis for regulating sex businesses: increases in crime rates and adverse effects on property values. Increases in crime rates occur 1) when activities in sex businesses (particularly on- premise entertainment) provide an opportu- nity for crime-for example, the arrangement of sex acts or selling drugs, either within or outside the establishment, and 2) when the business attracts what criminologists refer to as "soft targets"-persons impaired by a reaction to certain stimuli, making them vul- nerable to crimes ranging from theft to assault. The impairment may come from drugs or alcohol or because their focus is on excitement rather than personal safety. Furthermore, the victim of the theft of a cell phone or wallet at a sex business is far less ZONINGPRACTICE 10.06 AMERICAN PLANNING ASSOCIATION I page 2