Crucial Considerations

For A Constitutional and Effective

Sexually Oriented Business Ordinance

1. Harmful secondary effects caused by sexually oriented businesses (SOBs), e.g., increased crime; decreased property values and tax revenue; spread of sexually transmitted diseases; sexual harassment; urban blight; littering of pornographic materials, used hypodermic needles, and used condoms; increased traffic, noise, and cruising. The Legislative record should include the evidence: land use studies, maps, case law, crime reports, public hearing testimony, etc. The Preamble to the ordinance should state its purpose.

2. A community that has one or more of these businesses and does not have a strong and constitutional ordinance to regulate the location and operation of SOBs will suffer from these effects. A community that has none of these businesses and has not enacted such an ordinance is very vulnerable, as it is this kind of community which is the primary target of these businesses. Smart, forward-thinking community leaders will enact an SOB ordinance before a business takes up residence. Renton; City of National City v. Wiener.

3. The SOBs have a right to operate and cannot be banned by the ordinance because some deal in material or entertainment that is presumptively protected by the First Amendment. Roaden v. Kentucky, 413 U.S. 496, 504 (1973). However, a municipality is not a real estate broker for SOBs. Renton.

4. Municipalities have a right and a duty under their police powers to regulate SOBs to control where, when, and how they will locate and operate in order to eliminate their adverse secondary effects. Village of Euclid v. Amber Realty Co., 227 U.S. 365 (1965); Young; Renton; FW/PBS. Preamble stating its purpose.

5. The enactment and enforcement of content-neutral, time, place, and manner zoning and licensing regulations that are aimed at reducing the adverse secondary effects of SOBs, and not at the content of speech or expressive materials, and which provide a reasonable number of alternative locations for the businesses, serve a substantial government interest and will withstand a constitutional challenge. Young; Renton; FW/PBS; Wiener.

6. An SOB ordinance cannot ban or regulate any material. The ordinance must distinguish SOBs from other businesses that carry some amount of sexually explicit material. It is necessary to define the kind and amount of sexually oriented material, paraphernalia, and/or "service" or "entertainment" offered, so that a business can be properly identified as an SOB, and therefore, subject to the ordinance. Young; Renton; FW/PBS; People v. Superior Court (Lucero).

7. Conditional use permits are problematic when used to regulate SOBs because the courts have found their discretionary language and lack of time constraints to be unconstitutional "prior restraints" in violation of the First Amendment. Smith v. County of Los Angeles; Dease v. Anaheim.

8. In selecting sites and determining distance limitations for SOBs, city planners must determine the potential number of alternative sites that will be provided. Distance limitations between SOBs, and between SOBs and sensitive uses cannot be set arbitrarily. Land size, population, and the number of pre-existing SOBs which may have to relocate, if any, must be considered.

QUESTIONS: Why can't a majority vote by the citizens set "community standards" and keep SOBs out? Why should they be allowed to operate since they cause problems and distribute "obscenity"?

ANSWER: The First Amendment and the presumption of innocence. Expressive materials and conduct cannot be banned on the presumption that they might be obscene. That is "censorship", an unconstitutional "prior restraint". In a criminal trial (presumption of innocence) of an SOB owner charged with distributing "obscenity", the jury will be instructed to use a "contemporary community standard" as the reference point by which it will judge the material in question and the "innocence" of the accused. Miller v. California, 413 U.S. 15 (1973). If they find it to be obscene, both presumptions will have been rebutted. The defendant is guilty. That does not mean, by itself, that the business may be banned.

National Law Center for Children and Families, 1996

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