Daily Development for Wednesday, March 29, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

ZONING AND PLANNING; CONSTITUTIONAL LAW:  County ordinance regulating sexually oriented businesses is constitutional because it 1) is content-neutral, 2) survives intermediate-scrutiny, 3) is not overbroad, 4) does not violate the Fourth Amendment, and 5) does not violate the Fourteenth Amendment Right to Privacy. 

Abilene Retails #30, Inc. v. Board of Commissioners of Dickinson County, Kansas, 402 f. s. 2D 1285 (D. Kan. 2005).

In 2003 Abilene Retail opened an adult superstore that sold hundreds of sexual devices, materials and other related items.  In December, 2004, the local County passed a zoning ordinance regulating sexually oriented businesses in the County.  The opinion doesn’t tell us exactly what the ordinance provided, but mentions in passing a number of the restrictions.  Notably, the ordinance prohibited operations between the hours of midnight and six a.m., required disclosure of ownership of more than a 35% interest in the business, provided for regular inspections (but we aren’t tole what would be inspected), and established a “distance limitation,” but the court doesn’t say what distance is controlled.  

The preamble to the Ordinance  explained that the purpose of the Ordinance is to regulate the secondary effects of sexually oriented businesses, and the preamble discussed 27court cases affirming secondary effects of sexually oriented businesses and 22 reports verifying these secondary effects.  It appears that this preamble was a “packaged” set of studies provided by those in favor of regulating business of this type and passed around the country.  A public interest law group with “family” in its name also participated in the case as an amicus. 

As a quasi-supplement to the Ordinance, the County passed another Ordinance in March 2005 that designated ten available areas for sexually oriented businesses to locate in the County (apparently also subject to the same regulations described above.)

Abilene Retail filed an action for declaratory and injunctive relief against the Ordinance.  The County subsequently filed a motion for summary judgment.  In deciding the County’s motion for summary judgment, the federal district court  reviewed, inter alia, (1)whether the Ordinance was content-based or content-neutral and what level of constitutional scrutiny should apply; (2)if the Ordinance was content-neutral, whether the Ordinance advanced a substantial government interest while being narrowly tailed and leaving open alternative avenues of communications; (4)whether the Ordinance violated the overbreadth doctrine; (5)whether the inspection provisions of the Ordinance violatd the Fourth Amendment; and (6)whether the Ordinance violated the Fourteenth Amendment Right to Privacy.

The Court easily  held that the Ordinance was content-neutral because the County’s purpose in enacting the Ordinance was to curb secondary effects of sexually oriented businesses, rather than curb First Amendment expression.  The Court found this purpose was significantly evidenced in the preamble to the Ordinance.  It cited 10th Circuit authority concluding that ordinances addressing the kind of concerns that this Ordinance purported to address were “content neutral, and, even if they affected speech interests indirectly, were subject only to “intermediate scrutiny”  It stated that even if the County Commissioners had ulterior motives, and in fact disagreed with the values expressed by the operators of the store through their merchandise, these motives were immaterial if the ordinance in fact could be shown to address more neutral objectives.

The Court held that the Ordinance survived intermediate scrutiny because it (a)serves a substantial governmental interest, (b)is narrowly tailored, and (c)does not unreasonably limit alternative avenues of communication. 

The Court found that the Ordinance served a substantial governmental interest because the County met its burden to prove that the recited harms, i.e., the secondary effects stated in the preamble are real, not merely conjectural, and the Ordinance would in fact alleviate these harms in a direct and material way.  The Court noted that the County need not rely on empirical data and may rely, in part, on “appeal to common sense.”  The Court stated the County “need not wait for sexually oriented businesses to locate within its boundaries, depress property values, increase crime and spread sexually transmitted diseases before it regulates those businesses.”    It considered evidence presented by two “roving academics” produced by the competing sides in evaluating the studies supporting the Ordinance. 

The Court concluded the Ordinance was narrowly tailored, despite (i) restricting the hours of operation between midnight and 6 A.M., (ii)including within its scope retail-only stores, and (iii)containing demanding disclosure requirements.  The Court found that the Ordinance was not substantially broader than necessary.

The Court held the Ordinance did not unreasonably limit alternative avenues of communication because the quasi-supplemental ordinance designated ten available sites for sexually oriented businesses, and no other such businesses currently are in the County.  (Apparently this would become relevant if certain of the requirements led to the shutting down of the current operation - there was no indication in the opinion that this had occurred.)  The other sites, of course, would face the same regulations as the current store, and there is no guarantee that the owners of property at those sites would provide them at a price that would make operations possible.   This didn’t matter, as precedent has established that such stores can be required “compete for price” for space in the county.

The Court reasoned that even if the Ordinance was truly overbroad, its overbreadth must be substantial.  Nevertheless, the Court decided that the Ordinance was not overbroad because Abilene Retail did not prove real and substantial overbreadth, but merely offered hypothetical speculation.

The Court held the Inspection Provisions in the Ordinance did not violate the Fourth Amendment because the inspections did not amount to a search of a person, as contemplated in the Fourth Amendment, and Abilene Retail has no reasonable expectation of privacy in the areas of its store that are open to the public.

Finally, Abilene Retail alleged that restricting its business from being open between midnight and 6 A.M. violated its 14th Amendment Right to Privacy.  The Court disagreed by holding a the Ordinance is a mere zoning regulation, and not an outright restriction.  Items dealing with personal privacy, such as condoms, still could be sold in stores, such as drugstores and mini-marts - open after midnight that did not devote a substantial percentage of their inventory to sexually oriented devices. 

Accordingly, the Ordinance was found to be a valid, content-neutral zoning regulation.

Comment: The current judicial climate seems to be more and more receptive to permitting local government to regulate “sex shoppes” virtually out of existence - and certainly to make them very expensive to operate.  Judge Lungstrum, who decided this case, is highly regarded and based each of his conclusions on well established U.S. Supreme Court and Tenth Circuit authority.  Local government attorneys seeking assistance in designing restrictions of their own may benefit from reviewing the case and contacting the litigants. 

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