In 2002 the County Board of Commissioners adopted an ordinance regulating sexually oriented businesses and requiring such businesses to be licensed. Among the stated purposes of the ordinance were preventing harmful secondary impacts such as neighborhood blight, increase in crime and decrease in property value. The ordinance contains specific location requirements to avoid the overconcentration of such businesses in one area and to restrict the proximity of these businesses from places of worship, public or private schools, day-care facilities, residential properties, public playgrounds, public swimming pools and parks (1320 foot radius from these uses).
Business owners argued that their constitutional right to free speech was violated because the County Board of Commissioners relied on the secondary impact studies conducted in other jurisdictions, ordinances from other jurisdictions and other studies and reports, and because the Board members did not personally read each of these documents. The Court of Appeals found no violation since the County Sheriff testified that he and the county legal staff reviewed all of these documents, as well as Sheriff service calls that were related to sexually oriented businesses in the County, a general list of complaints from County residents living near the existing sexually oriented businesses and interviews with sexually oriented business owners. The Court concluded that competent evidence was relied upon, that studies from other jurisdictions as to the secondary effects of these businesses could be considered, and following the Fifth Circuit ruling in Lakeland Lounge v. Jackson, 973 F.3d 1255, that there is no constitutional requirement that the commissioners personally physically review the secondary effects studies (it was enough that the drafters of the legislation, e.g., the legal staff, had done so).
Further, the Court found that the ordinance did leave reasonable alternatives means of communication for the location of sexually oriented business in the County since out of 656 square miles, these businesses could located within 124 square mile area or the equivalent of 19% of the County. Although the business owners argued that these areas were not commercially viable, the Court noted that the U.S. Supreme Court rejected a similar argument in Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S. Ct. 925 (1986), where the Supreme Court held that the First Amendment requires only that the municipality refrain from effectively denying a reasonable opportunity to open and operate an adult use within the jurisdiction, and that it was up to the private real estate market to determine what properties could be available and when.
Pitt County v. Dejavue, Inc., 2007 WL 2471200 (N.C. App. 9/4/2007). Opinion also available at: http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060838-1.htm
