NCSL LegisBrief
Briefing Papers On the Important Issues of the Day
Adult Business Regulations
By Kelly Anders and Jude Balsamo
February 2001
Volume 9, Number 11
Adult businesses-establishments that offer sexually oriented material and entertainment-have become increasingly popular during the past 30 years. Many of the activities offered-including exotic dancing, films and sexually explicit materials-are protected by the First Amendment. However, many states have attempted to impose restrictions through local land use regulations and licensing provisions. Some regulations have been challenged as violations of the First Amendment rights to free speech and free expression, but a recent Supreme Court ruling may help states strengthen adult business regulations, and in some instances, ban nude dancing altogether.
State Actions
Twelve states-Alabama, Alaska, Delaware, Georgia, Illinois, Maryland, Massachusetts, Missouri, Ohio, Tennessee, Texas and West Virginia-specifically require or authorize a locality to license adult entertainment establishments. Their statutes generally define the establishments governed, require application, and provide for suspension and revocation of a license.
Illinois, for example, authorizes townships to license certain adult entertainment businesses. Delaware has established one of the most comprehensive licensing laws among the states, including restricting locations, creating a Commission on Adult Entertainment Establishments, and detailing requirements for licenses, fees and duties of an owner or operator. Arizona, Delaware, Georgia, Illinois, Mississippi, New Jersey, New York and Tennessee have laws to restrict the hours of operation or location of adult entertainment establishments. In Arizona, for example, certain establishments must close between 1 and 8 a.m., Monday through Saturday, and between 1 a.m. and noon on Sunday. Arizona authorizes localities to enact alternative restrictions on hours of operation; however, those regulations must be at least as restrictive as the state's laws. Only Alabama and North Carolina have expressly authorized the prohibition of nude dancing.
Legislation. A variety of bills were considered in 2000 to regulate adult businesses. Florida, Georgia, Maryland, Mississippi, New York and West Virginia considered legislation restricting locations of adult establishments. Legislation passed in Mississippi and West Virginia.
New York and West Virginia considered legislation to prohibit nude dancing in certain establishments licensed by alcohol beverage control. Rhode Island considered a bill that would place a four-year moratorium on adult entertainment licenses. California considered authorizing a county or city to regulate sexually oriented businesses, taking into account the potentially harmful secondary effects, such as higher crime rates and lower property values, on the surrounding community. Delaware passed a law last year that restricts the right of new adult entertainment establishments to operate in certain locations, and adds tax evasion as a reason to revoke an establishment's license.
Federal Actions
Tension between state and local regulations and protected speech has found its way to state and federal courts, and the U.S. Supreme Court. The Supreme Court first addressed adult use zoning restrictions in 1976 when Detroit's "Anti-Skid Row Ordinance" was upheld in Young vs. American Mini Theaters, Inc. Since then, a majority of municipalities around the country have adopted similar ordinances that control adult businesses in an effort to avoid the potentially dangerous secondary effects surrounding adult entertainment establishments.
The Court's decision this year in City of Erie vs. Pap's A.M. may have far-reaching effects for cities and states that want to outlaw nude dancing. In Erie, the Court upheld a local Pennsylvania ordinance that required exotic dancers to wear g-strings and pasties while performing. The Court determined that the ordinance was a content-neutral regulation of speech designed to deter the secondary effects of criminal activity associated with adult businesses and that requiring dancers to wear minimal attire was the least restrictive way to meet that goal. Some constitutional experts have expressed concern that upholding the ban on nude dancing will dilute the rights to free speech and free expression around the country.
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"Illustration for "Some State Restrictions on Adult Businesses" is not available online. Please contact the author for a copy or view the Adobe Acrobat version. Adobe Version
Selected References
Bergthold, Scott D. "City of Erie v. Pap's A.M. and the Future of Sexually Oriented Business Regulation." Municipal Lawyer 41, no. 5, September/October 2000.
McMillen, Steve. "Adult Uses and the First Amendment: Zoning and Non-Zoning Controls on the Use of Land for Adult Businesses." White Plains, N.Y.: Land Use Law Center, Pace University School of Law, Spring 1998.
Contacts for More Information
Kelly Anders
NCSL-Denver
(303) 364-7700, ext. 128
kelly.anders@ncsl.org
First Amendment Center
Nashville, TN
(615) 321-9588
www.freedomforum.org
National Obscenity Law Center
New York, NY
(212) 870-3232
www.moralityinmedia/nolc.org
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