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Regulating Sexually Oriented Businesses (was: SOBs)

Tom R

Cyburbian
Messages
2,274
Points
25
SOBs

One of our townships has proposed revised Sexually Oriented Businesses language for their Zoning Resolution. At first glance there are two things we question:
1. The propose to restrict minors from loitering around or entering any SOB. I can understand their concern but I've never seen this type of provision and I'm not sure it belongs in the Zoning.
2. They propose to restrict X Rated movies or any enterprise that advertises itself as X Rated or Adult. This seems like a stretch of authority to control the SOBs. Any comments?
 

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
Seems like a stretch. First Amendment Protected Adult Establishments are often regulated without much thought, and they get the local government into costly legal battles. Here's our [very good] text:

6.14 FIRST AMENDMENT PROTECTED ADULT-ORIENTED ESTABLISHMENTS (Ord. #1019 - 03-09-00)

(1)FINDINGS OF FACT

(a) The Common Council finds that Adult-Oriented Establishments, as defined and otherwise regulated by the City in its Adult-Oriented Licensing and Regulation Ordinance, require special zoning in order to protect and preserve the health, safety, and welfare of the City.

(b)Based its review of studies conducted in Phoenix AZ, Garden Grove CA, Los Angeles CA, Whittier CA, Indianapolis IN, Minneapolis MN, St. Paul MN, Cleveland OH Oklahoma City OK, Amarillo TX, Austin TX, Beaumont TX, Houston TX, Seattle WA, and the findings incorporated in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), Coleman A. Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976), the Common Council finds that there is convincing evidence that the secondary effects of Adult-Oriented Establishments include an increased risk of prostitution, high-risk sexual behavior, crime, and other deleterious effects upon existing businesses and surrounding residential areas, and decreased property values.
(c) The Common Council intends to control the impact of these secondary effects in order to protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and areas.
(d) It is not the intent of the Common Council to suppress any speech activities protected by the First Amendment, but to enact a content-neutral ordinance which addresses the secondary effects of Adult-Oriented Establishments while providing an outlet for First Amendment protected activities.
(e)In order to minimize and control the secondary effects of Adult-Oriented Establishments upon the City, it is the intent of the Common Council to prevent the concentration of Adult-Oriented Establishments within a certain distance of each other and within a certain distance of other specified locations which are incompatible with and would suffer from the secondary effects of Adult-Oriented Establishments.
(f)Based upon its review of materials linking alcohol consumption and high-risk sexual behavior and materials linking alcohol consumption and crimes such as sexual assault, the Common Council finds that a geographic separation of Adult-Oriented Establishments from alcohol beverage licensed premises is warranted.

(2)LOCATION OF FIRST AMENDMENT PROTECTED ADULT-ORIENTED ESTABLISHMENTS

(a)The First Amendment and other provisions of the United States Constitution, as interpreted by the United States Supreme Court and other courts, require that Adult-Oriented Establishments, as defined and otherwise regulated by the City, are entitled to certain protections, including the opportunity to locate in the City. Therefore, if an Adult-Oriented Establishment License has been granted by the City, and if all the requirements of this Section of the Zoning Code are met, an Adult-Oriented Establishment shall be an allowed use in the I-1 and I-2 zoning district(s) and shall be a prohibited use in any other zoning district. No other requirements of the Zoning Code need be satisfied, but for those required in order to obtain an Adult-Oriented Entertainment License from the City.
(b)Adult-Oriented Establishments shall be located at least 1,000 feet from:
1.any residential district line, playground lot line, or public park lot line;
2.any structure used as a residence, place of religious worship, public or private school, or Youth Facility as defined in the City’s Adult-Oriented Establishment Licensing and Regulation Ordinance;
3.any other structure housing an Adult-Oriented Establishment;
4.any structure housing an establishment which holds an alcohol beverage license.
(c)Distance requirements are to be measured in a straight line in any direction regardless of intervening structures, from the structure housing the Adult-Oriented Establishment to the above residential district boundary lines, to the lot line of any lot used for a park, playground, or the lot line of any structure listed in 2(b),(c) and (d), above.
(d)The measurements from a structure shall be taken from the farthest point a structure extends in the direction of the measurement, including overhanging roofs or similar projections.
(e)For Adult-Oriented Establishments located in conjunction with other buildings and clearly separate from other establishments such as in a shopping center, measurements shall be taken from the boundaries of the space occupied by the Adult-Oriented Establishment.
(f)For any Adult-Oriented Establishment located above ground level in a multi-story structure and clearly separate from other establishments within the structure, the distance measurements shall be taken from the ground floor public entrance/exit nearest the Adult-Oriented Establishment (excluding emergency exits).
(g)A licensed Adult-Oriented Establishment is not disqualified from holding an Adult-Oriented Establishment License by the location subsequent to the grant or renewal of its license of any of the establishments described in 2., above, within 1,000 feet of the licensed premises. This provision applies only to the renewal of an existing license and does not apply when an application for a license is submitted after a license for that location has not been renewed or has been revoked.
 

Cardinal

Cyburbian
Messages
10,080
Points
34
I agree with Chet. Several recent cases in Wisconsin have shot down local ordinances that infringe upon "free speech" issues related to adult entertainment. Some accomodation must be provided. In Chet's example, restrictions are placed on them by requiring them to be a given distance from certain uses. Here, we are considering permitting them as a conditional use only within the heavy manufacturing zoning district. Neither one bans the use outright, but does make it difficult to find a suitable location.
 

Tom R

Cyburbian
Messages
2,274
Points
25
sobs

In the instance I'm dealing with, they are leaving a small part of the Township where SOBs can technically locate along with buffers from schools etc. The relegating X rated movies and controlling loitering of minors in a zoning resolution seems to me to be on thin ice.
 

giff57

Corn Burning Fool
Staff member
Moderator
Messages
5,443
Points
34
Re: sobs

Tom R said:
In the instance I'm dealing with, they are leaving a small part of the Township where SOBs can technically locate along with buffers from schools etc. The relegating X rated movies and controlling loitering of minors in a zoning resolution seems to me to be on thin ice.
You cannot control people with a land use regulation. What about "unrated" movies....
 

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
Re: Re: sobs

giff57 said:
You cannot control people with a land use regulation. What about "unrated" movies....
Merrry XXX-Mas! ;)
 

ludes98

Cyburbian
Messages
1,264
Points
22
Re: Re: Re: sobs

Chet said:
Merrry XXX-Mas! ;)
Wicked!

No chance on controlling loitering, can't be done. If if you write it and it holds up in court, you will find enforcement impossible.
 

SGB

Cyburbian
Messages
3,388
Points
26
If that municipality did not do a secondary effects study when the code was first adopted, now may be an opportune time to do one.
 

Cardinal

Cyburbian
Messages
10,080
Points
34
Loitering might be reduced through good design review. It seems opposite of what we normally require. Place all of the parking in front of the building. Have it well-lighted. Put in only low or high landscaping to eliminate screened areas.
 

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
SGB said:
If that municipality did not do a secondary effects study when the code was first adopted, now may be an opportune time to do one.
Im sure my firm can help with that study. Call me. We'll do lunch. :)
 

ludes98

Cyburbian
Messages
1,264
Points
22
Cardinal said:
Loitering might be reduced through good design review. It seems opposite of what we normally require. Place all of the parking in front of the building. Have it well-lighted. Put in only low or high landscaping to eliminate screened areas.
CPTED is effective. Sample guidelines here. The geography of space and how people use it; should be required course in college.
 

Budgie

Cyburbian
Messages
5,270
Points
30
Cardinal said:
we are considering permitting them as a conditional use only within the heavy manufacturing zoning district. Neither one bans the use outright, but does make it difficult to find a suitable location.
Are your conditional uses reviewed by an appointed or elected body? If so, I would advise against having a conditional use because you place the reviewing body in a very difficult situation where they are likely to make a decision based on preceived morality rather than a legitimate rational nexus within the parameters allowed by state zoning laws.

I wrote a SOB code that allowed them by right with performance standards (conditions) that were expressly listed in the code without ambiguity to the codes meaning. The code established a de facto ban by limiting SOBs to over 600 acres of industrial zoned land that just happened to be in deep floodplain with virtually no existing structures for lease.

It is not the duty of local government to ensure that SOBs can be operated at a profit. It is also not the duty of local government to ensure that affordable leasing space is available. You just can't zone them out completely, must establish a rational nexus to a legitimate zoning concern and must be content neutral.

The situation Tom R describes relies on zoning statutory intent to "protect the public health, safety, welfare and morals". Morals are completely within the eye of the beholder, so I think they can not be a legitimate public purpose.
 

Chet

Cyburbian Emeritus
Messages
10,623
Points
34
Budgie said:
I wrote a SOB code that allowed them by right with performance standards....
Wow. Its a good thing I dont take the easy set-ups anymore. ;)
 

Duke Of Dystopia

Cyburbian
Messages
2,713
Points
24
Budgie said:
......The code established a de facto ban by limiting SOBs to over 600 acres of industrial zoned land that just happened to be in deep floodplain with virtually no existing structures for lease.

It is not the duty of local government to ensure that SOBs can be operated at a profit. It is also not the duty of local government to ensure that affordable leasing space is available.......
I thought there was a court case a couple of years back that nullified the defacto ban due to no leasing space. I believe the city in which it occured tried just this aproach and they failed. The city set it up with the knowledge it WAS a defacto ban, therefore it did not stand up in court.

I may be mistaken, and it is not the job of the city to enure profits or leasing, but the knowledgable act of seting such conditions as to effect a ban on SOB's would seem to also ensure a possible challenge in court. Clever, but questionable. Also, 600 acres (is that just the size or the required acreage) seems to also be questionable when compared to other zone requirements.
 

Tom R

Cyburbian
Messages
2,274
Points
25
Loitering

I think I'm going to recommend that they may require posting that loitering is illegal for minors in their zoning requirements but also enact a law prohibiting it in other sections of their resolution. This would make it readily enforceable by the police and they won't have to go through the zoning violation procedures.

Regarding restricting movies of certain ratings, the National Motion Picture Association's NC-17 (fka X) can merit this rating because of violence, drug abuse or other objectionable activity, not just explicit sex. So, I think such a restriction would be difficult to withstand a challange in a SOB limitation.
 

Budgie

Cyburbian
Messages
5,270
Points
30
Duke Of Dystopia said:
I thought there was a court case a couple of years back that nullified the defacto ban due to no leasing space. I believe the city in which it occured tried just this aproach and they failed. The city set it up with the knowledge it WAS a defacto ban, therefore it did not stand up in court.

I may be mistaken, and it is not the job of the city to enure profits or leasing, but the knowledgable act of seting such conditions as to effect a ban on SOB's would seem to also ensure a possible challenge in court. Clever, but questionable. Also, 600 acres (is that just the size or the required acreage) seems to also be questionable when compared to other zone requirements.
SOB's were allowed to occupy sites that accumulated to over 600 acres of the jurisdiction, thus there were ample land sites. An individual business could have occupied any lot size since there were not lot size restrictions within the industrial zoning district. The resolution was not designed with the express intent of being a de facto ban, but due to the economics of this type of business and the land use patterns of the community (location of schools, churches, parks, etc....) the number of available structures was small. Nothing prevents a business from platting and building a structure within over 600 acres of the community. In addition, if local structure owners don't want to lease to SOBs is it the fault of the government?

One unussual, but not completely unique provision, was a setback from arterial roads, which was justified due to the interest of protecting property values along the corridors where property values tend to be greatest due to access and visibility.
 

tsc

Cyburbian
Messages
1,905
Points
23
it doesn't seem like either could be controlled via zoning. I have seen regulations that require a minimum distance from school or church
 
Messages
7,649
Points
29
Stoopid Question

Tom R said:
In the instance I'm dealing with, they are leaving a small part of the Township where SOBs can technically locate along with buffers from schools etc. The relegating X rated movies and controlling loitering of minors in a zoning resolution seems to me to be on thin ice.
Uh, what happens if they pass this thing and a movie theater -- like the one at the mall here in Fairfield, with 16 screens -- plays a single x-rated film? Does the entire movie theater now become a place where kids cannot go? Is it now illegal to watch a children's movie with the family in tow in the same establishment (cuz, god forbid, some 6 year old might escape mom and go get sex ed at the movie screen next door -- and what happened to holding the parents responsible?).
 

Tom R

Cyburbian
Messages
2,274
Points
25
Re: Stoopid Question

Michele Zone said:
Uh, what happens if they pass this thing and a movie theater -- like the one at the mall here in Fairfield, with 16 screens -- plays a single x-rated film? Does the entire movie theater now become a place where kids cannot go? Is it now illegal to watch a children's movie with the family in tow in the same establishment (cuz, god forbid, some 6 year old might escape mom and go get sex ed at the movie screen next door -- and what happened to holding the parents responsible?).
Unless sombody narcs, nothing will happen.

The irony here is that we're dealing with townships who have at best a part time zoning inspector, a secretary and maybe an assistant. They come up with these complicated regulations on SOBs, noise, light pollution and erosion control when most of them don't know their own zoning resolution or the Ohio Revised Code that gives them the power to zone. Kafka where are you when we need you?
 
Messages
7,649
Points
29
Sure. I wasn't completely serious -- just kind of saying that it doesn't really look to me like that have really even thought about what they are saying.

A friend of mine who does a lot of community activism very insightfully said (something like) "it is as if they planned a body with a mouth -- because eating is pleasurable -- but no butt -- because going to the bathroom is icky." Most people really have never learned to think critically about the logical consequences of what they are proposing. No, it probably won't actually change a darn thing on a day to day basis -- but, somewhere down the road, it could be truly disastrous.

In Georgia, there are all kinds of sex offenses written into the laws that nobody tries to enforce "normally". But let some really nasty criminal -- like a child molester or serial rapist -- get caught and they will charge him with 147 counts of this, that, and the other. (Georgia law, if taken literally, practically outlaws enjoying sex. I think it would allow something like "the missionary position and no foreplay". Oral sex is defined as "sodomy" (just like anal sex) and is illegal. I can't remember any other good examples -- that one just always stuck in my mind as a rather eyebrow-raising example.)

In France, they sometimes call a "work to rule" strike -- which is to say that they follow every single rule written down somewhere in some book of regulations, not doing one iota more nor one iota less. It tends to all but bring services to a grinding halt. So I am well aware that no rules can be applied effectively without some human judgment involved -- but writing up bad rules makes it difficult for even very competent folks to apply them effectively.
 

Tom R

Cyburbian
Messages
2,274
Points
25
rules

I remember that from when I worked the line for GM. The company could not run the plant without the CONCENT of the workers. If everybody did exactly what was required and nothing more the line would come to a screeching halt.

I remember one time my spot welder broke and the foreman told me to stop welding. I must have been ticked about something. Anyway the welder was fixed and the line started. Pretty soon the foreman came running wanting to know why I wasn't doing this one weld. Well, he told me to stop welding but never told me me start again. I told him if he was going to treat me like a machine, I was going to act like one. He didn't see the humor in it.
 
Messages
7,649
Points
29
Re: rules

Tom R said:
I told him if he was going to treat me like a machine, I was going to act like one. He didn't see the humor in it.
Well, sure -- it isn't nice for the Machines with Paychecks to talk back. <I roll my eyes>

It makes me think of some of the stuff I have read about the lengthy historical struggle between "labor" and "management" for control of the time of labor.

Um, one more "off topic" remark while I am at it: Since kids cannot loiter and there are few good after school programs and it is illegal to leave them home without a babysitter and few families can afford a stay-at-home mom and child care is outrageous -- um, why not skip all the zoning regulations about where kids cannot hang out and just outlaw having kids? You could follow Georgia's example and start with outlawing enjoyment of sex.

Wait, if I take this joke far enough, I might actually get back On Topic of dealing with all the SOB's. :)
 

Doitnow

Cyburbian
Messages
496
Points
16
Interesting

I can only react by responding what goes on in my country.

Only by giving one examples( coz there are many)

Theres a very well known theatre complex not far from my house which has been showing the X-rated( publicised) movies for about 15 years or so.
A few years ago a girls only pre university college( owned privately) opened bang in front of it.
While both are doing well( business wise) probably for the authorities here it was location/abutting land/building use was not an issue at all or if it was then maybe they had a good laugh at it.
At least the parents of all the girls who come to that college have no problems about it{ I'm sure the girls dont too :)}, looking at the college entry and closing time rush.
So absolutly loitering around the SOB is allowed here, near my place. ( the americans are not conservative anyway, correct me if I am wrong about that)
I remember more than a decade ago when I was in High school( again located not far from the X rated theatre), i had friends who would bunk classess and watch the films and come back the next day with interesting descriptions. [ i was a law abiding student u see thats how i ended up as a planner :) ].

THere are two points which I want to make actually:
1. Theres a different authority/department which regulates and certifies activities within the theatres. So zoning allows the theatre building to come up but has no control over what goes on inside( in this regard only)
2. That SOBS are not covered within the zoning regulations here( although a mention can be made in the master plan itself that so and so department in charge may ensure that such and such things happen within the premises of that building.

I do wish the plans and their regulatory framework couldcover the vast and various social aspects also but that would also mean that such plans would be Be-All End-all of any activities. It would also mean governing and policing. Im sure that once a precendence is established in countries like the USA then we may actually learn quickly here and incorporate such aspects right now in the master plans/ macro plans.

PS:
1.By the way that x rated theatre is a major landmark for this area I am talking about and within the large complex there are recerational faciltiies and banquet halls/gardens where the rich and famous of the city regularly celebrate weddings etc.The owners are also well knwon and rich and famous.
2. I think its the way we look at things as planners. For example can you try to think from the points of views of the theatre owner( and his family) and the owner of the college. Both cater to specific needs of the people but definitely as far as locational conflict goes I agree with you that these things need to be rehulated. How to do is what we need to think. Its a kind of social policing u see.

Hoping for a reaction on the above.
 

Tom R

Cyburbian
Messages
2,274
Points
25
sob's

We're supposed to regulate SOB's according to their negative impact (blighting influences) on adjoining land uses NOT on the content of the material they sell. Some communities stretch this into a moral land use issue and try to impose their somewhat puritanical beliefs. When they do this they're stepping into a constitutionally protected mine field almost guaranteed to enrich some lawyer somewhere.

On a side note, we have been reviewing a number of zoning text amendments regarding SOB's. Like all of our review stuff we put the text on our web site. Recent analysis has shown that some of the most frequent "hits" on our site are from pornography search engines. There must be quite a few very disappointed individuals who land on our site and find out how boring local government can be.
 
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