Court Upholds Adult Zoning Ordinance

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Court Upholds Adult Zoning Ordinance

Special Report - June 17, 2009
A federal appeals court has upheld a zoning ordinance that restricts the location of sexually oriented businesses in Charlotte, ruling the City is not required to consider whether such establishments have actually caused negative secondary effects in the surrounding community in determining whether to enforce the ordinance. In a decision issued June 3, the 4^th U.S. Circuit Court of Appeals rejected a challenge to Charlotte’s adult zoning ordinance (AZO), which prohibits sexually oriented businesses, such as strip clubs and pornographic bookstores, from being located within 1,500 feet of residential neighborhoods, churches, schools, child care centers, parks or playgrounds, and from being located within 1,000 feet of another sexually oriented business. The city adopted the ordinance in 1994 to protect the community from the harmful secondary effects of sexually oriented businesses, such as reduced property values and increased criminal activity. The AZO gave existing adult entertainment establishments in Charlotte eight years (from 1994 through January 2002) to comply by either closing or moving to a new location.

The AZO was challenged by the owners of two sexually oriented businesses in Charlotte—Independence News, an “adult” bookstore, and Carousel Club, a strip club—after they received a letter from city officials in 2001, asking them to comply with the AZO. According to the federal appeals court decision, the plaintiffs argued that “enforcement of the AZO would strip them of their First Amendment protections because their adult establishments had not produced any unwanted secondary effects in the years since the AZO’s enactment.” The plaintiffs wanted the city to allow them to remain in their current locations, and asked for the right to introduce evidence that purportedly showed that property values in the area had increased or remained the same since 1993, and that no sex-related crimes had occurred during the same time period.

A federal district court rejected their claims and ruled in favor of the city of Charlotte, and the plaintiffs appealed that decision to the 4^th U.S. Circuit Court of Appeals. In a 17-page decision affirming the lower court’s decision, 4^th Circuit Chief Judge Karen J. Williams wrote: “Thus, when cities exercise their power to zone the location of adult establishments, they need not show that each individual adult establishment actually generates the undesired secondary effects …What matters here is whether the City had a sufficient evidentiary basis for adopting the ordinance in 1994.” The appeals court rejected the plaintiff’s argument that the Charlotte zoning board should consider their evidence showing that their sexually oriented businesses had not caused any harmful secondary effects in the community. “Considerations about the future play a large, if not central, part in any zoning decision, and…cities need not wait for adult establishments to generate adverse secondary effects in their city before taking action to prevent them from doing so in the future,” wrote Judge Williams. “Where, as here, a zoning ordinance legitimately targets secondary effects, it would make little sense to then require the [zoning board] to consider evidence that a particular adult establishment is not currently generating adverse secondary effects when deciding whether to grant that establishment a variance. In such a case, there is no assurance that the adult establishment will not begin to generate secondary effects in the future.”

Judge Williams concluded, “we simply do not see how the Constitution requires a zoning board to consider whether an adult establishment actually generates secondary effects to grant that establishment a variance.” The case is Independent News v. City of Charlotte.