Posted by: Patricia Salkin | February 25, 2009

Sixth Circuit Finds County Licensing Scheme for Sexually-Oriented Businesses Ordinance Constitutional

The Plaintiffs, owners of three adult entertainment businesses, challenged the constitutionality of a Knox County (TN) ordinance that establishes licensing requirements and regulations for sexually-oriented businesses. The district court granted summary judgment for the County(with a minor exception –  the court ordered the severance of two crimes, “racketeering” and “dealing in controlled substances,” from the list of crimes that triggered the Ordinance’s civil disability provision). The Plaintiffs’ appeal raises four main issues.


On appeal, the Plaintiffs alleged that the Ordinance is an unconstitutional infringement on First Amendment freedoms not justified by adequate evidence that local sexually oriented businesses produce adverse “secondary effects” or that the Ordinance is designed to remedy such effects. The Plaintiffs also claimed that the definitions of “nudity,” “semi-nudity,” and “adult motel,” as well as the prohibition on the sale and consumption of alcohol are not narrowly tailored and are unconstitutionally overbroad. In addition, the Plaitiffs alleged that the Ordinance enacts an unconstitutional prior restraint, and that the Ordinance’s regulation of business hours is preempted by Tennessee law. The County cross-appealed, arguing that the district court erroneously ordered the severance of “racketeering” and “dealing in controlled substances” from the Ordinance’s civil disability provision. With regard to the issues presented by Plaintiffs’ appeal, the Court affirmed the district court’s decision; with regard to the cross-appeal, the court reversed the order to sever.


The Third Circuit found that the County’s ordinance establishing licensing requirements and regulations for sexually-oriented businesses withstands challenge, as the cumulative evidence of secondary effects documented in its preamble “fairly supports” the county’s rationale.  Its definitions of “adult cabaret” and “semi-nudity” are sufficient; and the argument that the county cannot constitutionally regulate “expressive conduct involving performers who wear more cloth than pasties and g-strings is unsupported.”  The Court held that the ban on serving alcohol in such establishments is a reasonable restriction, and that the Tennessee Adult-Oriented Establishments statute (Tenn. Code Ann. § 7-51-1402) did not preempt the local licensing scheme since “the statute restrictions concerning business operations of ‘adult-oriented establishments and sexually-oriented businesses.’”

Richland Bookmart, Inc. v. Knox County, 2009 WL 330995 (C.A. 6th Cir. TN, 2/12/09). 



The opinion can be accessed at:

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