A New York Planning Federation Technical Memo
Prepared by Lydia R. Marola, Attorney, Village
of Scotia, NY and Rebecca Lubin, AICP

Everything You Ever Wanted to Know About...
Adult Entertainment Regulations

Introduction
            Adult entertainment uses can range from bookstores and/or video stores carrying a significant number of sexually-oriented material, to modeling studios, massage parlors and strip clubs. In almost every community, negative reactions usually greet these uses. This is even more likely if the municipality believes that it was caught off-guard by the use. Negative reactions can focus on moral objections to the nature of the use, or to real and perceived impacts such a use might have on a community.

            While it is sometimes difficult to obtain statistical information about the adult entertainment industry, information regarding trends can be found in local newspaper ads and by noting news items concerning the industry. It is also important to note any other state laws which cover adult entertainment uses. As noted in the Village of Scotia study (discussed elsewhere in this tech memo), in New York State the Alcoholic Beverage Control (ABC) laws and regulations of the State Liquor Authority have partial clothing requirements in establishments holding liquor licenses. ABC laws also require certain distances from schools and churches. (Many adult establishments have circumvented such laws by not serving alcohol, thereby making local land use regulations the only laws which impact where such businesses are located.)1

            What exactly can a municipality do about adult entertainment uses? Can they be banned? Can they be limited to areas that are away from schools and residential neighborhoods?

            This tech memo will help answer these questions and provide you and your community with information about the various planning tools available to municipalities dealing with adult entertainment uses. We will review municipal police power and the rights of municipalities to regulate land uses, and look at ways in which the First Amendment freedom of expression protection and landmark court cases have significantly impacted municipalities' rights to regulate adult uses. Finally, using models prepared by the Village of Scotia, we will discuss what municipalities should remember when drafting secondary impact studies and local regulations for adult uses.

Police Power: Municipal Rights to Regulate
            There is no simple answer to the question of what a municipality can do when regulating adult uses. At least part of the answer can be found in a community's right to regulate land uses as part of its municipal police power.

            Municipal police power is the power to enact regulations affecting private actions in order to protect the public health, safety and general welfare. Zoning and other land use regulations are exercises of municipal police power. Although this power has moved beyond its original intention and now allows municipalities to enact regulations protecting such things as historic properties and natural areas, police power cannot be used indiscriminately by a municipality in order to target a particular use or property owner.

            A community can regulate land uses for a legitimate public purpose, such as addressing development issues, the ignoring of which has a demonstrable impact on the value of land and the burden of delivering municipal services. These issues are largely defined in municipal and regional documents such as comprehensive plans.

            Usually, if a municipality determines that it would be in the best interest of its health, safety and general welfare not to have adult uses, then, through zoning or a local law, such uses could be prohibited. If it were that simple, that would be the end of the story. However, while municipal police power justifies a municipality's right to pass laws prohibiting certain uses in the community, adult entertainment uses may be protected under the First Amendment freedom of speech and expression provision, and therefore, must be allowed within any and all municipalities.

How First Amendment Protections Impact Municipal Police Power
            Both the United States Constitution, in the First Amendment, and the New York State Constitution, in Article 1 Section 8, provide for the protection of every citizen's right to the freedom of speech and expression. Many forms of adult entertainment, including printed materials, films and live entertainment, are protected by the First Amendment. Municipalities are, therefore, not permitted to enact local regulations that totally suppress the freedom of expression associated with these activities. It should be noted that constitutional protections do not cover activities or material deemed to be obscene, and these materials and activities may be banned by municipalities. However, many of the most common adult entertainment activities, such as adult book and video stores and nude dancing establishments, while sexually explicit, are not considered obscene, and are protected by the First Amendment.

            Keeping this in mind, it is the content of the adult entertainment activity that is protected under federal and state constitutions. The police power of a local government that justifies zoning and other types of local land use regulations cannot be aimed at suppressing or limiting the content of the use. "When municipal regulations impinge on an adult business's freedom of expression, they lose the presumption of constitutionality that normally applies to zoning regulations, and the burden shifts to local government to justify its restrictions."2 Although the constitutional protection of the freedom of expression means municipalities must allow for such uses within their boundaries, this does not mean that municipalities cannot regulate adult uses. What this means is that municipal regulations cannot focus on regulating adult uses because of what those uses contain, whether it be sexually explicit printed material, videos, or nude dancing. Municipalities are allowed to regulate adult uses in a manner that seeks to mitigate the potential secondary impacts (increase in crime, drug use, lowering of property values, etc.) often associated with adult entertainment uses.

            Prior to adopting any type of adult entertainment regulations, a municipal government must demonstrate that it has conducted or relied upon planning studies illustrating the need to protect certain areas of the municipality from the negative secondary impacts associated with adult businesses. (The content of secondary studies will be discussed later in this tech memo.) The extent to which local governments can limit adult entertainment uses has largely been shaped through court cases challenging municipal regulations.

Courts and Their Impact on Municipal Regulation of Adult Entertainment Uses
            Since local governments are limited in the extent to which they can regulate adult entertainment uses, municipal regulation has largely been a case of trial and error. Many regulations never make it to actual litigation, but those that do can have a significant impact on the adult use regulations in other communities. A number of state and federal cases have addressed municipal power over adult entertainment uses. Following is an overview of four important cases.

City of Renton v Playtime Theaters
            The City of Renton, Virginia, after conducting public hearings and research on the impacts of adult uses, enacted zoning regulations prohibiting an adult motion picture theater from locating within 1,000 feet of any residential zone, single or multi-family dwelling, church or park, and within one mile of any school. At the time the regulation was enacted, no adult entertainment uses existed in Renton. Legal action was brought after the regulation was in place when Playtime Theater, Inc. acquired two theaters with the intention of showing adult films.3

            In City of Renton v Playtime Theaters, 475 US 41, 89 L Ed 2d 29, 106 S Ct 925 (1986), the United States Supreme Court laid out a four-part test used to determine when zoning regulations for adult businesses do not violate the First Amendment. In determining the constitutional validity, courts must consider whether:
            1. The predominant purpose of zoning is to suppress the sexually explicit speech itself, or rather, to eliminate the "secondary effects" of adult uses;
            2. The zoning regulation furthers a substantial governmental interest;
            3. The zoning regulation is "narrowly tailored" to affect only those uses which produced the unwanted secondary effects; and
            4. The zoning regulations leave open reasonable alternative locations for adult uses.4

            The Court determined that the City of Renton regulations met this test and the regulations were upheld. An especially important point was made with regards to studies from municipalities outside of Renton that were relied upon when determining secondary impacts of adult entertainment uses. "The Court stated that the city did not have to produce its own studies...but must reasonably believe (on the record) that the studies were relevant to its concerns."5 This is significant since many municipalities, especially rural communities, have difficulty conducting studies of their own.

Town of Islip v Caviglia
            In the case of the Town of Islip v Caviglia, 73 N.Y.2d 544 (1989), the Court rejected the challenge brought by the owner of an adult bookstore, stating the Islip regulations successfully met the test set forth in Renton. The Town of Islip, New York, enacted regulations that concentrated adult uses within an area zoned industrial. In addition, the Town also terminated and amortized adult uses located in the downtown area, which had been targeted for a major revitalization effort.

            The court decided that Islip met the Renton test, finding the regulations to be content neutral and aimed at combating the secondary impacts of adult uses to allow for future development in the business district. This was supported through studies conducted by professional planners that supported the conclusion that adult uses have harmful secondary effects and that a "dead zone" was created in areas with existing adult uses that hindered development in those areas.6 In addition, the municipal government wanted to eliminate only those uses that were shown to produce unwanted secondary effects in order to allow for the redevelopment of those areas. Although Islip's regulations allowed adult uses only in an area zoned for industrial use, the court found that provided ample space for the development of such uses.7

Stringfellow's of New York, Ltd., v City of New York
            Arguably the most important legal decision in recent memory involving adult uses is from the New York State Court of Appeals in 1998 in the case of Stringfellow's of New York, Ltd., v City of New York, when the court unanimously upheld the validity of the New York City zoning regulations governing the location of adult entertainment uses within the five boroughs.

            In 1993, the New York City Division of City Planning conducted a study of the adult entertainment industry in that city. The study concluded that in areas where there was a concentration of adult uses, the presence of these businesses produced negative secondary impacts such as increased crime, decreased property values and reduced commercial activities.8

            Following the study, the City amended its regulations, placing restrictions on both the location and size of adult entertainment businesses. These zoning amendments were intended to mitigate the secondary impacts by breaking the concentration of adult uses in certain areas by dispersing them. The City's zoning amendments limited those districts where adult uses are allowed to certain commercial and manufacturing areas. Adult businesses located within districts where such uses are not allowed are required to conform to the new zoning or terminate the business at that location within one year of the amendment's effective date. In addition, businesses located within permitted districts are required to conform with certain distance and size requirements. Several adult businesses and their patrons brought actions challenging the validity of the City zoning amendments under Article 1, Section 8 of the New York State Constitution. This challenge was based on the claim that, because the amendment defines adult establishments as those allowing the exhibition of "specified anatomical areas" or "sexual activities," it is content-based and unlawfully suppresses expression.9

            The New York State Court of Appeals developed a test for determining the validity of zoning regulations under Article I, Section 8 of the New York State Constitution. The test includes:
            1. The zoning regulation must be justified by concerns unrelated to speech;
            2. It must be "no broader than necessary" to achieve its purpose, and
            3. It must provide alternative locations for adult use businesses.

The Court ruled that the New York City zoning amendment met the test and is valid under the New York State Constitution.10

City of Erie et al. V. Pap's A.M.
            The most recent United States Supreme Court decision on adult entertainment uses was made in March, 2000 in the case of City of Erie et al. V. Pap's A.M., tdba "Kandyland". The case was brought by Pap's, an establishment featuring all nude dancing, against the City of Erie, Pennsylvania which had enacted an ordinance making it an offense to knowingly or intentionally appear in public in a "state of nudity." To comply with the ordinance dancers, such as those performing at Kandyland, must wear, at a minimum, "pasties" and a "G-string." Pap's filed suit contending the ordinance violated its right to freedom of expression as protected by the First Amendment.

            The Court evaluated the Erie ordinance under the framework set forth in United States v. O'Brien, 391 U.S. 367, for content-neutral restrictions on symbolic speech. In its decision, the Court stated that, "Although being "in a state of nudity" is not an inherently expressive condition, nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment's protection. . . . What level of scrutiny applies is related to the suppression of expression." The Supreme Court upheld the Erie ordinance stating that it met all four factors set forth in O'Brien.

            The factors in O'Brien are similar to those in the case of Renton v. Playtime Theaters and in Stringfellows. In meeting the four factors the Court determined that first, "the ordinance is within Erie's constitutional power to enact because the city's efforts to protect public health and safety are clearly within its police powers. Second, the ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing. . . . The ordinance also satisfies O'Brien's third factor, that the government interest is unrelated to the suppression of free expression. . . . The fourth O'Brien factor--that the restriction is no greater than is essential to the furtherance of the government interest--is satisfied as well."11

            Clearly, to justify zoning regulations for adult businesses, municipalities must show that the regulations are not directed at the content of the use, but at the elimination of the negative secondary impacts resulting from that use. These are often demonstrated through secondary effects (or impacts) studies. Based on potential impacts identified in the study, a municipality can then recommend land use controls to regulate these types of uses. While secondary effects studies can take various forms, there are certain elements that should be included in any study. The Secondary Effects Study of Adult Entertainment Uses from the Village of Scotia (funded by the New York Planning Federation, and released in September, 1999), is used as a model for how communities prepare these studies and their format.12

Introduction: Motivation Behind Desire to Regulate
            In its study, the Village of Scotia discusses the community's concerns over adult entertainment uses and why it is considering regulation of such entertainment. The Introduction discusses the Village's decision to enact a moratorium on adult entertainment uses (See box) while the study and local law were being prepared. Also discussed are some of the legal issues that allow municipalities to regulate adult entertainment uses and the purpose of the secondary study.

Moratoria
            Before undertaking a secondary study, many municipalities choose to enact a moratorium. Often referred to as a "stop-gap" or "interim" regulation, moratoria are intended to preserve the status quo pending the adoption of zoning or other land use regulations. Municipal actions that might prompt the enactment of a moratorium include preparing a comprehensive plan, a proposal to establish a new use that is not adequately addressed in current zoning, or a municipal desire to ensure that community facilities may be made capable of servicing anticipated development.13

            Regardless of the reason behind a moratorium, courts have consistently required that these regulations be adopted in strict adherence to the procedures set forth in the enabling statutes for the enactment or amendment to zoning regulations. "The rationale for this requirement is that a moratorium is a form of land use regulation, in that it temporarily prohibits one or more uses." 14 In addition, municipalities should pay particular attention to the following when enacting a moratorium for any reason:
            Purpose/Intent  -  there needs to be a clear public purpose to the action that is articulated in the moratorium.

            The Extent of Coverage  -  be clear and fair on what actions are covered under the moratorium, as well as at what point during the review/approval process an applicant may gain exception. For instance, are all applications requiring site plan approval subject to the moratorium? Does that mean final approval is needed prior to the effective date, or is submittal of a complete application by such a date okay? Must the project have completed the SEQR process? There are lots of options.

            Period of Coverage  -  Courts have been consistently uncomfortable with long and broad moratoria. Six months or less is usually fine. Extensions of a year or more may be trouble, particularly if this effects significant proposals.

            Show Action and Progress  -  Timing of any moratorium is critical. It should be designed as a safe period during which real work is progressing toward updating a plan and/or regulations in light of legitimate pressures or trends. If a moratorium is initiated too soon and shows no progress, it could become challengeable.

            If the Moratorium Becomes Controversial  -  Don't poison community willingness to make changes by fighting over a moratorium. A moratorium should be relatively easy to initiate once there is agreement on the concept and terms. Remember, consistent with the SEQR amendments of 1996, moratoria are Type II actions under SEQR - greatly easing the process.

Review of Secondary Effects Studies
            Since most suburban and rural communities currently faced with the issue of regulating adult entertainment uses have no direct experience with such businesses, they must rely on secondary studies conducted by other municipalities to help identify potential secondary impacts. (As discussed earlier, in the landmark case, City of Renton v. Playtime Theaters, the United States Supreme Court determined that municipalities do not have to produce their own studies, but must state how the studies chosen are relevant to their concerns regarding secondary impacts.) Often these studies have been conducted in large metropolitan areas, but, as shown in the Village of Scotia study, this doesn't necessarily mean that they are not applicable to more suburban or rural areas. Often studies done in large cities are conducted on the neighborhood level, where the study area is actually no larger than many rural community centers or villages. Also, the mix and proximity of commercial and residential uses is often comparable between city neighborhoods and less urban areas.

            For their study, the Village of Scotia reviewed studies from Austin and El Paso, Texas; Newport News, Virginia; Garden Grove, California; Islip and the City of New Rochelle, New York; and Indianapolis, Indiana. Research methods used included a comparison of areas that contained adult uses with areas that did not (control areas), a survey of professionals and residents, and gathering statistical data. Secondary effects studied included crime rates, impacts on real estate, traffic, noise and general neighborhood appearance.
            Based on the review of these studies, the Village of Scotia concluded that all supported the existence of a number of negative secondary effects of adult entertainment uses, such as an increase in crime rates, decline in property values, and a general deterioration, both in reality and perception, of the neighborhoods in which these uses are located. Scotia also found that the studies were relevant to the Village since the studies did not focus on the city as a whole, but on much smaller areas. In addition, the impacts of adult uses on the study area were found to be independent of the size of the municipality.15

            The Village of Scotia findings that were especially applicable to them included:

1) The smaller the commercial district, the larger the impact because the "negative halo" will affect a larger proportion of the municipality's business than it would in a larger city;             2) Because of the small size of commercial districts the probability of substantial impacts of sexually oriented businesses upon residential areas increases, and;             3) Smaller places are more likely to have fewer days and hours of commercial activity than larger cities. This increases the likelihood than an adult business will have a larger impact on the area in which it is situated during off-hours for other businesses.16

Regulation Recommendation and Local Law
            The next step after establishing the potential secondary impacts which adult entertainment uses may have on a community, is to identify how best to regulate these uses in order to minimize negative impacts on residents and businesses within the municipality. Before choosing a regulatory method, the Village of Scotia,
            Reviewed current zoning:  The Village identified which zoning districts would currently allow adult entertainment businesses to locate as a permitted use, siting some of the undefined permitted uses within the Village zoning that an adult entertainment establishment may argue are appropriate classifications for their use. These included, but were not limited to, retail stores and shops, restaurants, theaters, membership clubs, drinking establishments and personal services stores.
            Identified land uses sensitive to potential negative impacts:  The Village identified sensitive areas "as possessing characteristics that are essential to the Village's character, quality of life, and economic success."17 These areas include residential neighborhoods, the central business district, places of worship, schools, childcare facilities, recreation areas, parks and playgrounds, and civic and cultural facilities.
            Reviewed legal considerations and regulatory options:  An overview of legal considerations and regulatory options was presented to outline major court decisions that impact local regulation of adult entertainment uses. Regulatory methods of licensing,18 concentration (which concentrates adult uses within a specific zone), dispersion (which seeks to prevent the concentration of adult uses), and the hybrid method (which concentrates adult uses within a certain zone and additionally restricts adult uses from locating within a certain distance of identified sensitive areas) were presented as options available.19

            Based on this analysis, the Village of Scotia decided to adopt a local law regulating adult entertainment uses for the purpose of mitigating the negative secondary impacts potentially caused by such uses. Adult entertainment uses are permitted only in industrial zones within the Village and further restricted from being within a minimum of 500 feet from identified sensitive areas. A minimum separation of 500 feet between adult uses is included, as are signage restrictions.20 (See attached)

The map below illustrates this process using a fictitious municipality.

Options for Municipalities without Zoning

            Municipalities without zoning regulations still have options when it comes to regulating adult entertainment uses.

            Site plan review can be used to help mitigate negative impacts on neighboring properties within a municipality. It is important to remember that site plan review is not zoning. Site plan review does not "permit" or "restrict" uses. The exercise of site plan review assumes land uses are allowed, subject to the elements of the site plan that may be reviewed as determined by the municipality. Using our example, a municipality may choose to require any adult entertainment establishment to be subject to site plan review.

            Under site plan review the municipality may review elements of a site plan such as those defined by New York State statute including;
            · Parking
            · Means of Access
            · Screening and landscaping
            · Signs
            · Architectural features
            · Location/dimension of buildings
            · Adjacent land uses and physical features meant to protect those uses
            · Any additional elements the governing body may specify

            Using this method, municipalities without zoning may control certain impacts on the community associated with the listed elements, but may not control the location of such a use within the community. It is important to remember that adult entertainment uses can be included in a municipal-wide site plan review local law that includes other land uses that the municipality wishes to make subject to site plan review.

            Municipalities without zoning may also use their non-zoning police power to regulate the potentially negative aspects of secondary impacts. Based on secondary impacts identified by a municipality, local laws may be enacted which regulate the nuisance, such as noise. Again, it is important to remember that these types of local laws should be municipal-wide and cover all uses. Adult entertainment establishments should not be the only types of uses subject to such laws.

Conclusion
            As was stated at the beginning, community reactions to adult entertainment uses are usually negative. Some could argue that by regulating adult entertainment uses, especially in municipalities where no such uses exist, attention is drawn to the topic and, by regulating these uses, that municipality is suddenly allowing them in the community. As is evidenced in this tech memo, this is not the case. Because of the First Amendment protections allowed many types of adult uses, municipal police power to prohibit these uses is limited. Thus, these uses, without municipal regulation, are essentially allowed in all municipalities, often in more locations prior to regulation than after.

            As is clear from the information presented here, municipalities do have the power to limit and confine adult entertainment uses to the places in their communities that they identify. When faced with regulating adult entertainment uses, municipalities should remember the following:
Identify the issues -- what causes concern?  Adult entertainment uses are often controversial and the issue or issues a municipality is most concerned with should be clearly identified and stated, ideally first addressed in a municipal comprehensive plan. As with any issue, communities should specifically identify what causes concern.
Identify possible solutions/tools as municipal options -- While municipal police power is limited in terms of prohibiting adult entertainment uses, municipalities do have control over where these uses can be located to mitigate possible negative secondary impacts.
Conduct a Secondary Study -- A secondary study is required before drafting any adult use regulations. While there is no required format for secondary studies, municipalities should include secondary impacts, current regulations/zoning, sensitive land uses and legal and regulatory options.
Draft and implement regulations -- Based on the secondary study and municipal options for regulation, draft and implement regulations that best suit the character of your municipality and best address municipal concerns.
Always involve the public -- Involving the public throughout the planning and regulatory process helps build a constituency regarding the issues of concern for the community. When dealing with a potentially controversial issue, involving the public can also help educate the community on all aspects of the issue.

Footnotes

1. Marola, Lydia R. and Blick, Greg. Secondary Effects of Adult Entertainment Uses, 1999. pg. 4 2. New York State Department of State Counsel's Office, Opinions of Counsel: Municipal Regulation of Adult uses After the Stringfellows Decision. 3. Weinig, Lynn E. "Regulating Adult Entertainment Uses," Municipal Lawyer, January/February, 1994. Volume 8, Number 1, pg. 1. 4. New York State Department of State Counsel's Office, Loc. Cit. 5. Weinig, Lynn E. Loc Cit. 6. Ibid. 7. Ibid. 8. NYS Department of State Counsel's Office, Loc. Cit. 9. Ibid. 10. United States Supreme Court Decision 11. Ibid. 12. The Village of Scotia model was funded by the Rural New York Planning and Preservation Grant Program with support from the J.R. Kaplan Fund and The Andy Warhol Foundation for the Visual Arts. Other municipalities are encouraged to review it. Copies of the Secondary Effects Study are available from the New York Planning Federation. 13. Damsky, Sheldon W., Catalano, Joseph M., Coon, James A. All You Ever Wanted to Know About Zoning...3rd Edition. New York Planning Federation, Albany, NY 1999, pg. 15-1 14. Ibid. pg. 15-3 15. Marola, Lydia R. and Blick, Greg. Loc. cit. pp. 4-8 16. Ibid. pp. 8-9 17. Ibid. p. 10 18. Ibid. p. 10 19. Ibid. pp. 14-16 20. Ibid. pp. 16-17