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Regulating Sexually Oriented Businesses

This information is provided by the American Family Association, which is a non-profit organization that willingly, among other things, helps to provide information to help communities set up Sexually Oriented Businesses Ordinances that discourage these businesses from entering the community. Their address is P.O. Drawer 2440, Tupelo, MS 38803; Phone: 662/680-3886; Fax: 662/844-4234.

Included on this site is the Bountiful, Utah, Sexually Oriented Business ordinance which was formed with suggestions from the American Family Association. The other is the Provo, Utah, Sexually Oriented Business ordinance which had the assistance of Scott Berthold, who is nationally recognized with his work regarding sexually oriented businesses.

What You Can Do About Sexually Oriented Businesses

    The Problem of Sexually Oriented Businesses

    As morality declines, outlets of sexual deviance typically ensue in order to take advantage of the profit potential made available by consumers of sexually oriented materials or services. However, sexually oriented businesses require special supervision in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the communities in which they locate. The problems deriving from sexually oriented businesses (SOBs) include unlawful sexual activities, sexually transmitted diseases, a deleterious effect on surrounding businesses, declining property values in surrounding residential neighborhoods, increased crime and blight and a general downgrading of the quality of life in the areas adjacent to SOBs.

    What are Sexually Oriented Businesses?

    Generally, an SOB is any business that, as one of its principal business purposes, offers for any form of consideration any entertainment, materials, or services that appeal to a prurient (lustful, lewd, or lascivious) interest in sex. Types of SOBs include, but are not limited to, adult arcades, adult bookstores, adult video stores, adult cabarets, adult motels, adult motion picture theaters, adult theaters, escort agencies, nude model studios, and sexual encounter centers.

    First Amendment Consideration

    The United States Supreme Court has interpreted the First Amendment of the Constitution as protecting, as free speech, the sale, lease, or rental of sexually oriented materials or services that may be “indecent” but are not “obscene” in relation to existing community standards. Nevertheless, the Court acknowledged that businesses that offer sexual materials and services create certain types of negative side effects that are not related to speech. These side effects, which the Court terms “adverse side effects,” are those effects described previously in the section entitled. The Problem of Sexually Oriented Businesses.

    Although the Court has upheld, as a matter of constitutional right, the sale, lease, or rental of non-obscene, sexually oriented materials or services, the court nonetheless has stated that communities have the right to regulate SOBs in order to minimize or eliminate the adverse secondary effects that are prevalent as a matter of course whenever these types of businesses operate in an unbridled fashion.

    Regulating Sexually Oriented Businesses

    There are two primary ways to regulate an SOB: zoning and licensing. Either or both of these ways may be used. In both of these regulatory forms, the SOB must comply with the regulations or face penalties and/or closure. Since the true purpose of an SOB is always profits and never freedom of speech, regulation of the business serves the community’s interest in maintaining the morals, safety, and welfare of its citizens by combating the adverse secondary effects generated by SOBs. 1. Zoning regulations: A town or municipality may enact legislation regulating the place where sexually oriented businesses may operate. As long as the legislation is rationally related to the purpose for which it was enacted, it will, with few exceptions, be upheld as constitutional. As a rule, most local governments that enact zoning legislation for sexually oriented businesses either cluster these businesses into one area, or disperse them throughout the community subject to certain restrictions. For example, many communities have distance requirements that prohibit an SOB from locating within 1,000 feet of a residence, church, school, day care center, or another SOB. 2. Licensing requirements: Another effective method of regulation is a licensing requirement. Here, the regulation requires all operators and employees to obtain licenses before they can operate or be employed by an SOB. The license application can be rigorous in its solicitation of background information, thereby ensuring that persons with certain criminal convictions cannot operate or be employed by the SOB. In addition, the licensing requirement may prohibit certain types of behavior on the premises of the SOB, such as nudity or alcohol consumption. It can also regulate the SOB’s hours of operation, and can impose stiff sanctions for violations of its provisions, including fines and/or suspension or revocation of the license. As a rule, licensing requirements have been very effective in halting or minimizing the adverse secondary effects caused by SOBs.

    Regulating Public Nudity

    In 1991, The U.S. Supreme Court ruled in the landmark case of Barnes vs. Glen Theatre that it is legal to prosecute nude dancers under the Indiana public indecency laws.

    The U.S. Supreme Court decision in Barnes vs. Glen Theatre stated in part:

      The law is clearly within the state’s constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing nude among strangers in public places and this particular law follows a line of state law, dating back to 1831, banning public nudity.

      The state’s traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation has been upheld (constitutionally.)

      The governmental interest (in preventing public nudity) is unrelated to the suppression of free expression, since public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity.

      Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest.

    Therefore, the government may put limitations on “free speech” if, (1) the limitations are incidental to the speech or expression, (2) the limitations are designed to be content neutral, and (3) the limitations protect the general welfare or societal order and public morals.

    Most states have been slow to see the potential power of this Supreme Court ruling. The problem is that many public officials don’t know how to regulate public nudity constitutionally. While the government cannot legally single out nude dancing for regulation just because it doesn’t approve of the activity or expressive message, it can regulate nudity to protect the general welfare or public morals and, as a result, require all nude dance clubs to comply with the law.

    What can SOB zoning and licensing ordinances regulate?

    The AFA Center for Law & Policy has obtained copies of numerous studies demonstrating that so-called adult entertainment creates significant adverse secondary effects as described previously in the section entitled, The Problem of Sexually Oriented Businesses. With the data from these studies as the basis and motivation, any governmental entity can enact constitutionally-sound sexually oriented business ordinances that will eliminate or curb the adverse secondary effects of SOBs and public nudity. In general, to protect the public health, morals, societal good, and property values, effective laws regulating SOBs should include some version of the following provisions:

    1. Zoning to establish set backs and scatter provisions for SOBs, a.k.a. a 1,000 foot rule.
    2. Require all non-conforming pre-existing businesses to come into compliance within a specified period of time.
    3. Require rigorous ownership disclosure requirements.
    4. Establish suspension and revocation standards for SOB permits.
    5. Prohibit peep booths as they may presently exist, thereby regulating the internal configuration/construction of SOBs.
    6. Regulate the exterior appearance and signage of SOBs.
    7. Prohibit nude dancing.
    8. Prohibit motels from being used for purposes of prostitution.
    9. Prohibit more than one defined SOB in a single building.
    10. Regulate nude model and sexual encounter centers.
    11. Establish provisions for adequate parking.
    12. Prohibit grandfather clauses where state law allows.
    13. Establish license requirements for owners, operators, and employees to insure moral inturpitude in order to protect against sexually related crimes.
    14. Establish minimum lighting requirements.
    15. Prohibit patron contact with dancers.
    16. Establish “time, place, and manner” restrictions on hours of operation. This is constitutionally permissible as long as there is adequate operating time, 10 a.m. to 10 p.m., for example.
    17. Prohibit alcohol sales where state law allows.

    The American Family Association Center for Law & Policy has drafted a generic model SOB ordinance and a generic public nudity ordinance that can be tailored for use in most communities across America. However, because these ordinances are generic, they may not address the particular problems in your community. Ideally, a local government should use this model as a starting point; adding sections where necessary and/or deleting sections that may be irrelevant. It is highly recommended that legal advice be sought from constitutional litigators throughout the enactment process. The AFA Center for Law & Policy would be pleased to discuss such assistance.

    How to get started combating SOBs

    1. Determine whether there are any SOBs in your community.
    2. If SOBs exist, make sure they are not providing any materials or services that are obscene or illegal. Obscenity is not protected speech, and may be legally halted at any time. In addition, the sale or offering of sex for sale is illegal. If there is a question about the legality of material or activities, ask local law enforcement officials to investigate and, if warranted, prosecute the offender.
    3. Determine whether your community has adopted any SOB ordinances. Contact a city council member, city clerk or city attorney for this information. If an ordinance exists, request a copy so that you will be aware of the regulations and be able to hold the proper authorities accountable for its enforcement. Upon request, the AFA Center for Law & Policy will review the ordinance for constitutional defects and can suggest ways it can be strengthened.
    4. If no SOB ordinances exist, contact a locally elected official and ask him/her to sponsor such an ordinance. If a sponsor is interested, the official should contact an attorney with the AFA Center for Law & Policy to request assistance. A copy of the aforementioned model SOB is listed below. Attorneys are available to assist in drafting the ordinance to meet state and local requirements and to defend it in the event of litigation. AFA attorneys can be reached at 662-680-3886. All services are free of charge.
    5. Contact all local commercial property manager/owners and ask them to consider adding lease/deed restrictions to prevent SOBs from leasing/buying property for sexually oriented uses. A sample Deed/Lease Restriction can be found in AFA’s booklet A Guide to What One Person Can Do About Pornography. This guide can be viewed from AFA’s website at www.afa.net or requested from AFA.

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