Orange County Voices : Cities Must Take a Stronger Stand Against Adult Businesses

The impact of federal interference into local affairs is most keenly felt in the conflict between the freedom of speech given to so-called sexually oriented businesses and citizens’ rights to decide the type of community they want to live in.

Unfortunately, because of U.S. Supreme Court rulings, many municipalities have overreacted by assuming that every community is required to allow the operation of businesses such as topless bars that cater to sexual themes. I believe that every community has the right and the duty to regulate closely the impact of businesses operating in their community.

The problem is that many in city government are unwilling to take any risk beyond the easy path of submissive acquiescence to the insupportable idea that every community is required to accept these types of businesses. As such, city leaders will pretend to show an interest in the views of the community, suggest to the public that they agree with their concerns, but refuse to follow their conscience when it is time to vote. I find it shocking that the leaders of any city could be so indifferent to the will of the people.

If the citizens, like many local leaders, are content to throw up their hands saying, “There is nothing we can do!” and therefore are willing to allow such businesses to infiltrate their community, then there is nothing further that anyone can say or do.

However, if the citizens or a city council want to take a strong stance against the detrimental effect of adult businesses in their community and are not willing to meekly succumb, then I would encourage the creation and support of legislation that truly will reflect the will of the people.

On this issue, the U.S. Supreme Court has limited municipalities’ ability to suppress speech. However, it is absurd to interpret these rulings to require every city in the United States to have some type of adult entertainment. In fact, in Renton vs. Playtime Theatres Inc. (1986) quoting Young vs. American Mini Theatres Inc. (1976), the court stated, “that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate.”

The questions regarding adult businesses are not where to locate them, whether any other city has successfully banned them, or what actions the community can take after such businesses have already become established. The only question to ask is: Has any city accepted adult businesses and remained unscathed by the inevitable impact of secondary effects (i.e., increased crime, decreased property values, impairment of retail trade and impact on the quality of life)?

The answer to that question is an emphatic “no.” Janet LaRue, an attorney with the National Law Center for Children and Families, has explained that, without exception, illegal activities will accompany adult businesses. It is unreasonable to force the citizens of any city to take that risk.

In California, municipalities are allowed to regulate the time, place and manner of operation of sexually oriented businesses under the California Government Code Section 65850(g)(1). In addition, the U.S. Supreme Court has stated that any ordinance that regulates sexually oriented businesses: 1) must be designed to serve a substantial governmental interest, 2) cannot unreasonably limit alternative avenues of communication and 3) must be based on narrow, objective and definite standards.

Municipalities should consider adopting an ordinance with two tiers as a short-term approach to regulating adult businesses in a way that will best serve the constraints set forth by the U.S. Supreme Court while allowing each community to set its own standards.

The first tier could include a total prohibition of all sexually oriented businesses from any location within the municipality. To do so, the reasons must be set forth in the ordinance to explain that it is regulating the secondary effects of such businesses aggressively, and that it is not a suppression of anyone’s “right” to free expression.

In addition, the first tier should include a provision that, in the event that the ordinance is found unconstitutional by the U.S. Supreme Court, the second tier immediately would become effective. The second tier would include stringent standards and regulations of adult businesses.

By structuring the ordinance in this manner, any prospective adult business would need to be willing to fight a potentially expensive legal battle to invalidate the first tier of the ordinance, and must also be willing to comply with the stringent provisions of the second tier. Because money is such a motivating factor for any business, I believe that most businesses of this type would rather go somewhere else than wage an expensive legal fight. Regarding existing businesses, it is much more difficult to get them out than to never have them become established.

If, as a result of such an ordinance, a single adult business is discouraged from establishing business in that area, it will be a victory for the citizens. In addition, the length of time that may be required to litigate the right of the community to protect its citizens’ interests also will have spared the community from the impact of such businesses for that much longer.

As the battle continues, only strong, well-supported ordinances will have the potential to turn the tide away from feeble acceptance of adult businesses. Without such attempts, the current predicament of local government cannot be eased. Meanwhile, each community must be willing to take a strong stance, or risk the stain scorched on it.