Posted by: Patricia Salkin | April 12, 2009

Constitutionality of County Adult Business Ordinance Upheld and Court Finds Ordinance Neither Overbroad nor Vague

An adult business ordinance adopted in 2008 was challenged as unconstitutional by the operators of Enlightened Reading, Inc., d/b/a Erotic City, which sold novelties, lingerie, and merchandise that contained sexually explicit material. The original ordinance was repealed and replaced by Ordinance No. 3993, which enacted new regulations applicable to adult entertainment businesses.  In finding that adult businesses produced numerous adverse secondary effects, the County relied on evidence “presented in hearings and in reports made available” to it, as well as interpretations and findings found in various judicial opinions. The County adopted and incorporated its findings and the sources it relied on, including judicial opinions and studies, into the ordinance. The plaintiffs challenged the new ordinance, claiming it was vague and overbroad, not narrowly tailored to promote a substantial government interest, and gave officials unbridled discretion in determining which business could be licensed. The plaintiffs also questioned the adequacy of the evidence the County relied on to justify the ordinance. However, the plaintiffs did not offer evidence disputing the County’s factual findings; rather, they argued that the evidence that the County relied upon did not support its rationale – specifically, that the ordinance was unconstitutional as applied to an adult book store that only sold and rented adult material for off-site use, because the evidence the County relied upon to justify the ordinance did not specifically consider these types of establishments. The County moved for judgment on the pleadings, which the district court granted.

 

The plaintiffs’ overbreadth and vagueness challenges were without merit. The ordinance specifically applied to businesses whose principal business activities included selling adult products or providing adult entertainment, and there was no indication that any potential overbreadth in the statute was “not readily susceptible to a narrowing construction.” Secondly, the ordinance was unrelated to the suppression of speech and was narrowly tailored to promoting its interest. For the most part, the ordinance did not seek to suppress speech or expression, directly or indirectly. The challenges to the licensing requirements based on the discretion the ordinance gave to the Director of the Public Works Department failed “as a matter of law.” The ordinance provided that the director “shall issue a license unless” one of the enumerated conditions (“objective and measurable criteria”) applied, and specifically prescribed the time limit in which the director was to make a determination. Lastly, the plaintiffs’ contention – that the County did not rely on studies focusing on secondary effects from retail-only bookstores– was unsupported because the County relied on studies and judicial opinions focusing on reasonably similar businesses to the plaintiffs’ establishment, and the evidence was reasonably relevant to the secondary effects it sought to address. The County also reviewed evidence of deleterious secondary effects pertinent to adult retail businesses. Because the plaintiffs failed to cast doubt on the County’s rationale or on the evidence the County relied upon, the County was found to have met its evidentiary burden to justify its substantial government interests.

 

Enlightened Reading, Inc. v. Jackson County, Mo., 2009 WL 792492 (W. D. Mo. 3/24/2009). 

 

The opinion can be accessed at: http://www.alliancealert.org/2009/20090325.pdf

 

This abstract appears in the April 8, 2008 IMLA News. Contact www.imla.org for more information about their programs and membership. 

 

 

 


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