Posted by: Patricia Salkin | July 27, 2008

District Court Rules that “Virtual” Adult Entertainment Business Has Standing to Challenge City’s Zoning Ordinance

The City of Miami’s zoning code prohibited adult businesses from operating in residential zones and required such businesses to obtain a special permit. The plaintiff, Flava Works, leased a residence in Miami that was used in its business through webcasts of the occupants (CocoDorm.com).  Its “business model” was to sell subscriptions to individuals over the Internet, and then to offer both live and recorded feeds of sexually explicit conduct to these subscribers via the Internet. The persons residing at the residence were independent contractors of Flava, and were expected to engage in sexual relations, activities which were captured by webcams located through the premises and then broadcast to subscribers. The City posted a notice of violation at the residence, alleging the premises were used for an adult entertainment business. The Code Enforcement Board ruled that the plaintiff had operated an adult entertainment establishment in an inappropriate zone and had illegally operated a business in a residential zone. For its part, Flava alleged that City’s interest in regulating the secondary effects of adult entertainment establishments had no connection to an Internet-based website business because the business was conducted over the Internet in “virtual space;” thus, the City overreached in its application of the ordinance.  Flava brought an action seeking a review of the Board’s ruling and claiming the City violated its First and Fourteenth Amendment rights.  It argued that the ordinance did not advance a legitimate governmental interest because the City failed to sufficiently assert secondary effects, and that the ordinance was unconstitutionally overbroad and was not narrowly tailored. In this application, the City applied to dismiss, claiming Flava had never applied for a special permit to operate the business and lacked standing to bring a challenge to the special exception requirements in the zoning code. 

 

The motion to dismiss was denied, as Flava had standing.  Flava alleged that the City, through the Board’s decision, had made a determination that its business model constituted an adult entertainment establishment; as a result, Flava was now subject to the permitting procedures that it sought to challenge. As such, it had standing to assert a claim, regardless of whether it had applied for and been denied a permit. For substantially the same reasons, the court found Flava also had standing to bring its overbreadth challenge.

 

Flava Works, Inc. v. City of Miami, Fla., No. 07-22370-CIV, 2008 WL 2323886 (S.D. Fla. June 02, 2008 )

 

Special thanks to Sophia Stadnyk of IMLA who provided this abstract in the IMLA News No. 11 (July 23, 2008 ).  For more information about the International Municipal Lawyers Association visit www.imla.org


Responses

  1. The ABA Real Property Law Blog reports another similar situation in Miami:

    ‘Dorm Dudes’ May Be Right in Miami’s Gay Porn Fight
    Posted Aug 14, 2008, 12:56 pm CDT
    By Martha Neil

    The city of Miami is fighting an uphill battle in its effort to close down a house in which “dorm dudes” are paid by a gay porn website to live there and have sex on schedule.

    Although the city contends that the so-called porn dorm is in violation of residential zoning restrictions, experts say a court may well find otherwise. U.S. District Court Judge Marcia Cooke recently rejected the city’s effort to dismiss a lawsuit filed by Cocodorm over a city shutdown order last year, reports the Miami Herald. The lawsuit contends that the order violates the website’s First Amendment rights.

    Relying on a 2001 federal appellate ruling in a similar case involving a Tampa porn dorm for women, “Cocodorm argues its Edgewater home can’t be called an adult business because, unlike a run-of-the-mill strip club, the public is not invited in. Those who want to see Cocodorm’s ‘hottest and horniest’ do so via the Internet, with a credit card,” the newspaper writes.

    New Jersey attorney Evans Anyanwu, who has followed the Voyeurdorm case in Tampa, sees it as virtually identical to the situation in Miami, even though officials have said the municipal codes in the two cities are different. “The city of Miami,” he says, “has an uphill fight.”

    A trial is scheduled in December, but Cocodorm hopes to settle the suit.

    http://www.abajournal.com/news/dorm_dudes_may_be_right_in_miamis_gay_porn_fight


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