Evolving regulations for Sexual Oriented Businesses.

APA Arkansas Chapter


Thursday, September 5, 2013
11:30 a.m. - 1:30 p.m. CDT

CM | 1.50
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The presentation will feature a discussion of government regulation of sexually-oriented businesses. In order to regulate such a business, a government cannot prohibit the lawful speech associated with it; rather, it may only seek to avoid/remedy “adverse secondary effects” associated with such businesses. “[A] city’s ‘interest in attempting to preserve the quality of urban life is one that must be accorded high respect.’” Renton, 475 U.S. at 50, 106 S.Ct. at 930 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2453 (1976)). Federal courts have unequivocally determined that preventing the adverse secondary effects of sexually-oriented businesses is a significant and substantial governmental interest. So, as an initial matter for Planners, it is imperative that any assistance given in drafting or recommending an ordinance (for instance) regulating sexually-oriented businesses not go too far. Going too far would be proscribing lawful speech. Regulations of constitutionally protected speech are permissible as a reasonable time, place, and manner restrictions if the regulations are “designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 50 (1986). As long as an ordinance can be justified without reference to the content of the regulated speech, it can be considered content-neutral. Ambassador Books & Video, Inc., v. City of Little Rock, 20 F.3d 858, 863 (8th Cir. 1994). Where an ordinance does not ban sexually-oriented businesses altogether but merely restricts them to certain locations, these restrictions are properly analyzed as a form of time, place, and manner regulations. Renton, 475 U.S. at 46, 106 S.Ct. at 928. “[W]ith respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to ‘content-neutral’ time, place, and manner regulations.” Id. at 49, 929-30. Content-neutral time, place, and manner regulations do not violate the right to free speech so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. Id. at 47, 928. But how do planners assist government in crafting regulations that accurately identify “adverse secondary effects?” Whichever type of business, the government will have to identify and incorporate evidence of such adverse secondary effects into their regulation. This can occur in the form of studies, even studies by other governments and researchers. Adverse secondary effects can also be shown via crime statistics. One topic of discussion will be the best way to incorporate such studies and statistics into the regulation itself, and to ensure that the governmental entity’s policymakers review the information and not simply rubber-stamp such a regulation. Once a City has established that there are arguably secondary adverse effects associated with sexually-oriented businesses, the next question becomes are their alternative avenues for the lawful, First Amendment protected, communication associated with such businesses. The presentation will discuss the varying ways Courts have looked at this issue: what percentage of land is available for such businesses to locate in a given city/county/state? Are there particular sites available at the time of regulation where such businesses could, employing the real estate market, locate (re-locate)? Does the regulation contain setbacks from churches and other businesses that will further restrict the real estate available in these alternative areas? The law in this area is evolving on a near weekly basis. Whether your regulation is constitutional will depend on what jurisdiction you’re in, and a host of other factors ripe for discussion at the presentation.


Mike Mosley

Confirmed Speaker

Mike Mosley, licensed to practice before Arkansas state and federal courts, the western district of Tennessee, the Sixth and Eighth Circuit Court of Appeals, and the United State Supreme Court. Formerly a special deputy prosecutor for DWI and drugs with the state prosecuting attorneys and former law clerk to the ... Read More