Posted by: Patricia Salkin | February 15, 2019

Third Circuit Court of Appeals Updolds Denial of Permit to Operate an Adult Entertainment Club Inside a Shopping Center Finding no First Amendment Violations

This post was authored by Matthew Loeser, Esq.

Appellant Terry Sutton sought to operate an adult entertainment club inside a shopping center he owned in Chanceford Township, Pennsylvania. After the Township’s Zoning Hearing Board rejected his application for a permit, Sutton sued the Township and many of its officials, arguing that the Township’s special requirements for adult entertainment facilities violated the First Amendment, both facially and as applied, and that the Board’s rejection of his application violated his right to substantive due process. The District Court granted summary judgment in favor of the Town.

On appeal, Sutton contended that the Township’s ordinance’s restrictions on adult entertainment facilities facially violated the First Amendment. Specifically, Sutton claimed the Township failed to prove that the purpose of its restrictions on adult entertainment facilities was to combat their secondary effects.  The record indicated that the Township produced sworn affidavits from multiple officials involved in passing the adult entertainment restrictions demonstrating that the “principal concerns” were with “orderly growth, traffic, health and safety, and crime.” Additionally, the Township’s Solicitor testified that he reviewed various court decisions, as well as legislative findings, discussing the negative secondary effects of adult entertainment businesses. These concerns were then identified in the Township’s zoning ordinance. Accordingly, Sutton’s facial challenge failed.
Next, Sutton contended that even if the ordinance’s restrictions on adult entertainment facilities were facially valid, they were unconstitutional as applied.  Here, however, the record reflected that the Board rejected the application for legitimate, content-neutral reasons, rather than from animus to nude dancing. Specifically, the Board found that pursuant to the ordinance only “stores” could be part of a shopping center, and the cabaret was not a store. Additionally, the Board found that Sutton failed to establish that the cabaret would meet the ground-water discharge and sewage-disposal requirements applicable to all special uses. Finally, the Board found that the cabaret, by featuring lewd activity and permitting patrons to bring in alcohol, would violate Pennsylvania law. Accordingly, the court rejected Sutton’s as-applied challenge.
Sutton also argued that the Township violated substantive due process when it rejected his application. He contended that the Township Solicitor, who wrote the final decision denying his application, did so without the approval of the Zoning Board members and purely out of animus toward nude dancing. As discussed above, the court found that the record reflected the Board ultimately offered several permissible reasons for denying his application that had nothing to do with the morality or expressive nature of nude dancing.  As such, the court affirmed the judgment of the District Court.
Sutton v Chanceford Township, 2019 WL 588757 (CA 3rd Cir. 2/13/2019)


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