Posted by: Patricia Salkin | September 20, 2017

PA Appeals Court Finds City Code Regulating Adult Cabarets was Constitutional

Leroy London applied to the City’s Department of Licenses & Inspections (L&I) for a permit to operate an adult cabaret within an existing restaurant/bar. L&I issued a Notice of Refusal because adult cabarets were not permitted in the CMX–2 Zoning District, and because the proposed use was not permitted within 500 feet of residential homes or a protected use. After a hearing, the Board affirmed L&I’s decision and denied London’s request for a variance. In this case, London appealed from the order by the Court of Common Pleas of Philadelphia County, which denied London’s appeal from the decision of the City of Philadelphia’s Zoning Board of Adjustment that denied his use variance. The Order was issued after this Court remanded the matter to the trial court to address London’s challenge to the constitutionality of Section 14–601(7)(a)(.1) of the City’s Zoning Code, which defined “adult cabaret.”

On appeal, London argued that Section 14–601(7)(a)(.1) of the Code was unconstitutional because it was overbroad and vague. Specifically, he argued that it “reached beyond its legitimate sweep” by not applying solely to nude dancing, but also to a variety of performances and actions, like plays and musicals, that were entitled to full constitutional protection. Even though the terms “male impersonator” or “female impersonator” could include actors in a play when viewed separately, the court found that in context these terms were narrowed by rules of construction. The court determined that under the doctrine of “noscitur a sociis” a word is given more detailed content by the neighboring words it is associated with.  Here, the phrase “male or female impersonators” was part of a list including topless dancers, go-go dancers, exotic dancers and strippers: all of which pertained to sexually oriented entertainment. Moreover, the regulation further provided that the “male or female impersonators or similar entertainers” must be: “exhibiting specified anatomical areas”; or “performing specified sexual activities”; or “dancing, performing or acting in a lewd, sexually erotic, exciting, or stimulating manner for patrons or viewers.” Accordingly, the court held that the Code’s definition of “adult cabaret” did not adversely affect a “substantial” amount of protected speech relative to its “plainly legitimate sweep” of imposing a “time, manner, place” regulation on sexually oriented businesses within the City.

London v Zoning Board of Philadelphia, 2017 WL 5473638 (PA Cmmwlth 1/15/2017)

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