Agenda - Planning Commission - 02/06/2003

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116 Page 2 -- January 10, 2003 Adult Entertainment-- State law requires business to dose during certain hours ARIZONA (11/27/02) --Empress Adult Video and Bookstore :operated an adult-oriented business that sold' and rented nonobscene, sexually explicit ma- terials and featured nonobscene, sexually explicit live performances. Empress' was required to' close between 1 a.m. and 8 a.m. from. Monday ttzrough Saturday and between 1 a.m. and 12 noon on Sunday. Failure to do so constituted a class one misdemeanor. Empress sued, claiming the closing rules violated the state constitution. The court found the rules constitutional. The court basedits ruling on the belief that adult, bus/nesses increased cd_me and sexually-oriented litter and brought down neighbohng property values. Empress appealed. DECISION: Reversed in part, affirmed in part. Requiring Empress to stop selling adult materials during those hours vio- lated the state constitution. However, the live entertainment could be so stricted. Although testimony, showed increased sexually-oriented litter associated with adult businesses, fitter control could not justify restr/ctions on freedom of expression, The closing-hours requirement provided a convenient, but not the least re- strictive means, of curbing the negative effects of adult speechl Rather, the requirement banned such speech for not less than seven hours a day. During those hours, it erected a direct barrier tO communication. Consequently, it did not affect freedom of adult speech as little as possible. Although-the requirement might have been appropriate under' the. First 'Amendment of the United States Constitution, it did not satisfy the narrower state constitution. However, live performances of nude dancing could be restricted. Although nude dancing had the same level of constitutional protection as selling explicit materials, the state government could.regulate it if the governmental interest in doing so was unrelated to the:suppression of free-expression. Since the state was only trying m curb the negative effects of nude' dancing at those hours (and provided Empress with 5,980 hours available annually for nude dancing), the requirement was constitutional under the more stringent, state constitutional- requirements. Citation: Empress Adult Video and Bookstore-v. City of Tucson, Court of Appeals of Arizona, Div. 2, Dept. B, No. 2 CA-CV 2000~0079 (2002). see also: Mountain States Tel. & TeL Co. v. Arizona Corp. Commission, 773 P2d 455 (1989), · see also: Barnes v. Glen Theatre [nc., 50t U.S. 560 (1991). ! I I I I ! I I ! I I I I