Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP Got your attention? The use of the word “sex” in the title of a land-use law blog can be a real magnet in pulling in readers who are a little weary of the subtly scintillating discussions of variances, setbacks and minimum floor areas. This last week, we had two decisions in federal court that do a good job of showing us the four corners of permissible regulation of adult entertainment facilities. The first is from the United States District Court for the District of Minnesota, decided on February 9, 2009. Pao Xiong d/b/a Huff & Puff Tobacco v. City of Morehead, Minnesota, 2009 U.S. Dist. LEXIS 9143. In January 2007, Moorhead adopted this ordinance:
“10-23-3: LOCATION OF ADULT ESTABLISHMENTS:
A. Adult establishments may only be located within the light industrial district and heavy industrial district, and as further regulated in this chapter.
B. No adult establishment may be located less than one thousand feet (1,000′) from the nearest property line of any land in a residential zone or in a planned unit development zone developed for residential use or an existing residential use, or of any daycare center, school, establishment with a liquor license, library, public park, religious institution, playground or other public recreational facility in any zoning district, whether within the city limits of Moorhead or not.
C. No adult establishment may be located less than five hundred feet (500′) from any other adult establishment, whether within the city limits of Moorhead or not. Measurements shall be made in a direct line from the property line of the premises where each use is located. (Ord. 2006-36, 1-2-2007)”
Huff & Puff is a regulated adult establishment because more than 20% of its floor space is devoted to sales of adult goods. The store offers quite a variety — it sells magazines, videos, vibrators, rubber goods and novelties, handcuffs, blindfolds and lubricants, as well as handbags, greeting cards, herbal medicines, tobacco products and accessories, herbal salvia, and incense. In case you wonder what herbal salvia is, I looked it up. It’s a psychoactive herb with potentially strong dissociative effects. A member of the sage and mint families, the Latin name Salvia divinorum literally translates to “sage of the seers”. You learn something every day.
Huff & Puff huffed and puffed over the regulations because its location did not comply with the new zoning and it would have to move if it continued to offer this fine array of consumer products.
The court held that the city could use previous studies of secondary effects without regard to whether the consumption of the adult fare was on-site or off-site. The court also held that a one-year amortization for relocation with the right to request a one-year extension was reasonable. However, the court would not grant summary judgment to the city on the existence of adequate alternative sites and the content-neutrality of hours of operation because the record was lacking on both issues. The court suggested further briefing and submissions to the court on these issues or settlement negotiations.
Finally, the court found that the regulations were not overboard and not facially invalid. Click here to go to the entire zoning section on adult uses.
The other decision this last week is Richland Bookmart v. Knox County, Tennessee out of the Sixth Circuit. Click here for the decision. This is a long (27 pages in the slip opinion) and x-rated decision worth reading if you want to know the law of pasties and g-strings. Stripped of its details, the decision upholds the county’s ordinance which can be viewed by clicking here. The findings in the ordinance citing court decisions and studies on secondary effects are exemplary. There are three areas of regulation: (1) annual licensing, (2) business hours, the manner is which film and videos may be displayed and interior configuration requirements, and (3) the prohibition of certain activities (nudity and alcohol).
For those of who seek even more excitement from the world of land use law, for next week I’ll look for cases on landscaping requirements for parking lots…