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Zoning regulations are among the more visible and controversial functions north carolina nudes local governments. Zoning has become the principal tool citizens and local governments use to manage urban growth and development and to protect the character of their communities. Few matters will pack a hearing room as quickly as a major rezoning proposal.
But if there is a topic that generates more community interest and controversy than zoning, it may well be sexually oriented businesses. Therefore, it is hardly surprising that zoning and other regulation of sexually oriented businesses produces tremendous public interest and debate, many local ordinances, and more than a few lawsuits.
The upshot of this outpouring of concern has been a strong trend among local governments around the country and in North Carolina to regulate sexually oriented businesses, most often by ificantly restricting their location. Special use permits and special licensing requirements are also often used to impose restrictions on sexually oriented businesses north carolina nudes do not apply to other businesses.
This Special Series publication examines the legal issues associated with government regulation of sexually oriented businesses. The second section addresses the question of what type of sexually oriented activity can be banned entirely. The publication then devotes considerable attention in a third section to the type of restrictions most frequently used by local governments—zoning restrictions on the location of sexually oriented businesses. This third section examines how far the First Amendment allows local governments to go in restricting these businesses and what a local government must do to establish a proper legal foundation for its regulations.
The fourth section briefly reviews operational restrictions that can be imposed on sexually oriented businesses. Does the definition apply only to theaters that regularly screen X-rated movies, or does it also include screening movies that have any nudity presented? Does the definition cover the bar with occasional topless dancers as well as bars featuring them as their regular entertainment?
To avoid being unconstitutionally vague, an ordinance regulating sexually oriented businesses must be drawn with sufficient precision that a person of normal intelligence has fair notice of what is prohibited. It must also give reasonably clear guidelines concerning the scope of the regulation for enforcement officers and the courts to prevent arbitrary or discriminatory enforcement.
This requirement of avoiding unduly vague definitions has not been a ificant difficulty with most ordinances regulating the location of adult bookstores, theaters, and bars. Even definitions found adequately precise by the courts can still, however, be subject to contentious battles over interpretation.
After a lengthy hearing, the board of adjustment rejected this subterfuge, ruling preponderance related more to the weight, force, and impact of the material, and not to a mathematical counting of s of items available. A final aspect of definitions that requires careful consideration is the question of exemptions. Many local governments draft their regulations regarding sexually oriented businesses to exempt mainstream businesses, such as legitimate theatrical productions or providers of therapeutic massage.
Some ordinances exempt all regulation of protected speech, thus avoiding First Amendment review altogether. The First Amendment protects rights of free speech. First Amendment cases that address political expression are familiar to many. Public Service Commission of New York. Both have important implications for regulation of sexually oriented businesses. The first type of speech with no First Amendment protection is obscenity.
This distinction is discussed in more detail below in the sections on obscenity and indecent exposure. If a protester burns the American flag, is this action a political statement protected as speech, or is it illegal conduct? What about burning a draft card?
The Court held flag burning to be protected speech  but draft card burning to be conduct. In the latter case, United States v. In the context of sexually oriented business, the question arises whether dancing completely or nearly nude is speech or north carolina nudes.
Justice Scalia has proposed that nudity in and of itself be declared conduct that could always be prohibited. While the Supreme Court has debated just how much First Amendment protection is to be provided to commercial sexually explicit speech,  even nude or semi-nude dancing receives some degree of constitutional protection. Such a regulation must be narrowly drawn to accomplish a compelling governmental interest in order to be sustained,  a very difficult burden that is met only in extraordinary situations. The Equal Protection Clause requires that similarly situated persons and businesses be treated alike.
Operators of sexually oriented businesses often make two equal protection challenges to government restrictions on their business.
First is the challenge that it is unfair to restrict adult bookstores, bars, or theaters without placing similar north carolina nudes on all bookstores, bars, or theaters. The argument here is that, for example, a topless bar has the same impacts on traffic, noise, and the neighborhood as a regular bar; and therefore the topless bar and the regular bar should be regulated alike. Second, an equal protection challenge is also raised where the ordinance regulates some but not all sexually oriented businesses. The argument here is that it is unfair, for example, to regulate an adult theater without also regulating an adult bookstore.
The courts have uniformly rejected such an argument. However, for regulation should be chosen carefully. Glaring over- or under-inclusiveness can be used to establish that an ordinance is not rationally related to a legitimate governmental objective and thus violates the Equal Protection Clause. At one time it appeared that the authority granted to states by the Twenty-first Amendment to regulate alcohol sales might well provide a rationale to justify greater restriction on First Amendment rights than might otherwise be the case.
In California v. Subsequent cases used this rationale to justify a ban on topless dancing in facilities with liquor s. However, the Supreme Court recently ruled that while the Twenty-first Amendment grants states authority to regulate commerce, it in no way reduces the protections afforded by the First Amendment. Without questioning the holding in LaRue, we north carolina nudes disavow its reasoning insofar as it relied on the Twenty-first Amendment.
Obscenity and indecent exposure are banned by state law. There are also state laws in North Carolina that ban location of more than one adult-use establishment in a single building, that ban lewd activities in establishments with alcohol s, and that prohibit the maintenance of a public nuisance.
The exact scope of these state statutes is critically important because it limits the range of regulatory options available to local governments. Local governments may not adopt regulations on sexually oriented businesses that duplicate or are contrary to state laws. In State v. Tenore,  the court held that the state obscenity statutes had not entirely preempted this field and that more restrictive local regulations might be legally possible.
However, the court went on to rule that an Onslow County ordinance prohibiting topless dancing was invalid because it purported to regulate the same conduct addressed by state statutes. The North Carolina statutory definition of obscenity, which has been updated several times to conform to judicial definitions of the scope of First Amendment protections, defines material including writings, pictures, records, films, tapes, plays, dance, and performance as obscene if. Several aspects of this definition are noteworthy.
Jones,  a topless dancer at The Keg in Raleigh was charged with violation of this statute. Could the state legislature change the law by specifically amending the indecent exposure statute to prohibit exposure of female breasts by dancers in topless bars and clubs since the legislature can generally change the common law by enacting a statute?
The Supreme Court has twice addressed the constitutionality of laws attempting to ban topless dancing. The Court in in Schad v. Borough of Mt. The Court held the borough had not established any justification for a total ban and had failed to provide adequate alternative channels for the presentation of speech protected by the First Amendment, including non-obscene nude dancing.
Glen Theater, Inc. As has been the situation in a of First Amendment cases, Barnes produced a fractured court—in this instance there were four separate opinions—that supported regulation rather than a total ban on dancing.
Justice Scalia would have held the regulation valid as a general law applying to conduct—nudity in this instance—rather than speech and therefore not subject to First Amendment scrutiny at all. One federal court has held that this north carolina nudes preempts any more restrictive local requirement that separates sexually oriented businesses.
The ordinance required existing businesses that were not in compliance to close or relocate within two years. The court held this restriction on location of the businesses regulated the same subject as G. It should be noted though that the state statute applies to the of adult businesses located within a single structure and is completely silent as to where that building may be located relative to surrounding land uses.
Thus it is unlikely though possible that state courts will extend this rationale to hold that the statute preempts the many zoning restrictions on location of sexually oriented businesses. The North Carolina statutes governing alcohol sales also include specific restrictions on adult entertainment.
The courts have long upheld restrictions deed to prevent minors from being exposed to sexually explicit material. Finally, state law on nuisance abatement  provides an additional enforcement tool should an adult entertainment business provide obscene materials as a principal or substantial  part of its business. This statute also defines us of the property for prostitution, asation, or sale of illegal drugs or alcohol a nuisance.
There are several important aspects of the Young decision. First, the ordinance in question was based on protection of neighborhoods from deterioration, not a community objection to the content of adult entertainment. Second, the ordinance was based on an established local problem. There was evidence that in the five years leading up to adoption of the ordinance, the of adult theaters in Detroit had risen from two to twenty-five, with a comparable increase in the of other adult establishments.
Third, the ordinance did not purport to substantially restrict the availability of constitutionally protected speech which includes non-obscene adult films and books. The court distinguished this modest separation requirement for multiple adult establishments from a total ban on protected speech, noting the ordinance did not limit the total of adult establishments in the city nor deny ready access as establishments for adult uses could still be located in any commercial district as long as there were not already two other such uses nearby.
Ten years later a somewhat more sympathetic court  revisited this question and upheld a more restrictive location ordinance in City of Renton v. Playtime Theatres, Inc. There are several particularly notable aspects of the Renton decision. First, the Court north carolina nudes not impose particularly stringent requirements on the degree of effort a local government must undertake to demonstrate the need for regulation of adult businesses.
Also, the city was allowed to rely on studies prepared by neighboring Seattle, rather than having to document any negative secondary impacts of adult theaters in Renton itself. There were no adult establishments at all present in Renton when the ordinance was adopted. Third, the court allowed a substantial restriction, but not total exclusion, on the availability of permissible sites for adult entertainment. The court noted that while the city could not effectively deny the opportunity to open and operate an adult theater within the entire city, the adult entertainment operators would have to fend for themselves in the real estate market.
The city has no obligation to assure that sites are readily available at bargain prices. In sum, the Young and Renton decisions established the following tests for determining the validity of local regulations on sexually oriented businesses with First Amendment protection. To be upheld, the restrictions must. It is not unusual for the public record surrounding the adoption of local restrictions on adult uses to contain a of statements from members of the public, the city or county staff, and governing board members regarding other purposes of the regulatory action.
North carolina nudes is commonplace that many, sometimes most, of these comments focus on the content of the speech. What if a majority of the board members adopting the ordinance explicitly state in the minutes of the meeting that they have acted in order to rid the community of immoral books, material that is degrading to women, or sleazy performances they feel are inherently evil and are detrimental to the character of their north carolina nudes As a general rule, the actual motives of the governing board in adopting the regulation are irrelevant.
Though advisable, it is not absolutely necessary that a regulation of sexually oriented businesses have a statement of purposes regarding secondary impacts. In the Barnes case, Justice Souter was willing to infer an intent to regulate to address secondary impacts based on the terms of the regulation.
These provisions can be important in establishing the validity of the regulation. Still, a local government places itself at some risk of having its regulations invalidated if it treats the requirement of having a predominate purpose of addressing secondary impacts as a legal fiction to be given lip service but otherwise ignored. It is not unusual for zoning amendments to be proposed to deal with particular emerging issues. However, since these particular types of restrictions must have a predominate purpose of addressing secondary impacts, many courts are particularly sensitive to First Amendment infringements when the record of local consideration contains only expressions of moral outrage about the content of adult entertainment.
The north carolina nudes fate of a Pensacola, Florida, ordinance illustrates this point. Church members and other concerned citizens immediately bombarded the city council with complaints contending that topless bars were an affront to all standards of decency, public sensibility, and propriety. The council instructed the city attorney to prepare the strongest possible ordinance to ban nude dancing in the city. The courts have widely held that there are substantial and legitimate governmental interests in protecting ading neighborhoods from blight, preventing traffic and litter problems, preventing crime, promoting consistency with adopted land use plans, and maintaining property values.
Can a small town or rural county rely on studies from a major urban center halfway across the country? Can a city rely on the observations of its officials and citizens, or is a professional study required? Can a study on the impacts of a massage parlor be used to justify restrictions on a video rental store? These are critical questions because very few local governments conduct their own local planning studies to document adverse secondary impacts.
Local governments have an affirmative burden to establish a relationship between the restriction on protected First Amendment rights and the harms to be prevented. As with the motive question, however, the courts have been fairly lenient about this requirement. The courts have not been as demanding on establishing a substantial link or nexus between the means and ends of the regulation as has been the case in the property rights area.
Some local governments have successfully used professional staff to make a study of the issue and assist in deing an ordinance that is specifically tailored to local needs. It is also permissible to anticipate problems  north carolina nudes reviewing experiences elsewhere  and conducting a legal review of other ordinances and court decisions. Despite this judicial deference to local legislative judgment on the relevance of studies and experiences in other locales, courts will invalidate ordinances where there is no evidence at all in the record to justify a concern about secondary impacts.
Local governments should also be careful to assure that the studies used are in fact related to the type of sexually oriented business being regulated.North carolina nudes
email: [email protected] - phone:(533) 137-9513 x 5684
Raleigh NC Indecent Exposure Attorney