Posted by: Patricia Salkin | August 3, 2009

Municipalities May Regulate Secondary Effects of Adult Business Uses in General, Without Putting Forth Evidence as to the Negative Effects Resulting from Each Individual Business Impacted

In 1994 the City of Charlotte (“City”) enacted an Adult Zoning Ordinance (“AZO”) to protect certain sensitive uses from the secondary effects associated with adult establishments.  The ordinance contained an amortization provision that required adult establishments to close or relocate the appropriate distance by January 18, 2002.  The location of adult establishments was limited to several zoning districts: B-2 (Business), UMUD (Uptown Mixed Use District), and I-1 and I-2 (Industrial).  It required, and continues to require, that adult establishments be located at certain distances from any protected use, such as residential districts, schools, churches, child care centers, parks, or playgrounds.  Section 12.518 which governs the requirement was added to prevent a concentration of adult establishments in Charlotte and to separate adult establishments from sensitive uses due to secondary effects studies that had shown that lowered property values and increased crime rates accompanied or were brought about by the concentration of adult establishments.  The AZO included an amortization provision that gave preexisting adult establishments not in compliance with the protected use separation requirement until January 18, 2002 (eight years from adoption) to either close or relocate to a conforming area.  On March 18, 1996 the City granted the ZBA authority to authorize a variance from the protected use separation requirement if before granting the variance, the ZBA was able to find that traffic patterns, structures, or other natural or man-made features created an adequate amount of separation and protection from any secondary effects of an adult establishment. 

Independence News has operated an adult bookstore at its present location in the City since 1993.  In October 2001, Independent News was sent a notice advising that it was in violation of the protected use separation requirements of § 12.518(a) and reminding Independent News that the amortization provision required them to alleviate the problem by January 18, 2002.  Polo South has also operated a live adult entertainment establishment since 1993, Polo South was sent the same notification as Independence News in October of 2001.  Independence and Polo South filed complaints demanding a permanent injunction to prevent the City from enforcing the amortization provision, a declaratory judgment that § 12.518 violated their first amendment rights facially and as-applied, and an order directing the ZBA to consider whether the Appellants’ establishments actually generated the adverse effects stated. 

On June 3, 2004, the district court granted the City’s motion for partial judgment on the pleadings and dismissed the as-applied challenge, concluding “it is settled that Appellants cannot maintain an ‘as-applied challenge’ to the secondary effects rationale of the AZO’s time, place, and manner restrictions.”  The district court also granted summary judgment for the City in regards to the Appellants’ claim that the AZO was unconstitutional.  On May 9, 2008, Appellants filed an amended stipulation of dismissal as to all outstanding claims and preserved those resolved issues for the present appeal.  The Appellants contest the granting of partial judgment on the pleadings in favor of the City and that the district court erred in granting the City summary judgment on the Appellants’ facial challenge. 

Content-neutral time, place, and manner restrictions like the AZO are allowed as long as they are “narrowly tailored” to serve a “substantial governmental interest” and do not unreasonably limit the alternative modes of communication available.  The Fourth Circuit Court of Appeals stated that the validity of such a regulation depends on its relation to the overall problem which the government seeks to ameliorate.  In enacting AZO’s the City is entitled to rely on the experience and studies of other cities and states, and is not required to conduct new studies, as long as the evidence relied upon is reasonably believed to be relevant to the problem at hand.  Although the Appellants argued that the restriction was unconstitutional because data gathered after the passage of the AZO proved the opposite of what the AZO sought to resolve, the only requirement in reviewing AZO’s are that a city show that in enacting its AZO, the city relied on evidence believed to be reasonably relevant to the problem at hand.  When passing an ordinance the City only needs to rely on the secondary effects of adult establishments in the aggregate, not on an individual basis.  The Court stated that what ultimately mattered in cases challenging AZOs is if the City had a sufficient evidentiary basis for adopting the ordinance, and Appellants conceded that the district court did, so the partial judgment is affirmed.

The second contention that the Appellants put forth, that the AZO was unconstitutional because it does not mandate the ZBA to consider factual evidence concerning the secondary effects of adult businesses, was merely an attempt by the Appellants to avoid the consequences of the AZO’s amortization provision.  When an ordinance targets secondary effects, it does not make sense to require the ZBA to consider evidence that a particular adult establishment is not currently generating the effects that the AZO is trying to resolve.  There is no assurance that the establishments will not begin to generate adverse secondary effects.  The Court held that they simply “do not see how the Constitution requires a zoning board to consider whether an adult establishment actually generates secondary effects when decided whether or not to grant a variance.”  The Court concluded that the City may enforce the AZO against an adult establishment without regard to whether that particular establishment generates undesired secondary effects.  The district court properly granted summary judgment in favor of the City on the constitutional claim. 

Independence News, Inc. v. City of Charlotte 2009 WL 1533166 (C.A. 4 (N.C.) 6/3/2009).

The opinion can be accessed at: http://pacer.ca4.uscourts.gov/opinion.pdf/081654.P.pdf


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