US Fifth Circuit Appeals Court Affirms that Evidence of Secondary Effects of “Off-Site Consumption” Adult Enterprises Is Sufficient To Justify Zoning

Some porn merchants claim that adult bookstores (as opposed to adult theaters) only have off-site consumption of porn, that they generate no signficant secondary effects, and that they should be exempt from adult-use zoning. The US Fifth Circuit Court of Appeals disagrees (PDF), and just found that the City of Kennedale, TX has sufficiently demonstrated secondary effects for ‘off-premises’ porn shops.

On-site businesses (i.e., adult theaters or strip clubs) pose
a greater threat of secondary effects than off-site sexually
oriented businesses (i.e., adult bookstores).[3] Therefore, a city
that enforces an ordinance meant to prevent harmful secondary
effects associated with the operation of an off-site business must
rely on evidence showing that off-site businesses, rather than the
broader category of sexually oriented businesses that includes onsite
businesses, cause harmful secondary effects. Encore Videos,
330 F.3d at 295 (requiring city to “provide at least some
substantial evidence of secondary effects specific to adult
businesses that sell books or videos solely for off-site
entertainment” to meet narrow tailoring requirement).

In Encore Videos, we invalidated San Antonio’s ordinance regulating sexually oriented businesses because the city failed to
present adequate evidence showing a connection between off-site
businesses and harmful secondary effects. San Antonio’s evidence
consisted of three studies conducted in other cities showing a
connection between sexually oriented businesses, without isolating
off-site businesses and secondary effects. Encore Videos, 330 F.3d at 294–95. Those studies did not provide any information exclusive
to off-site businesses, so a substantial portion of the ordinance’s
burden on speech did not serve to advance its goals, and it failed
the narrow tailoring prong. Id. at 295.

This case differs from Encore Videos because Kennedale, unlike
San Antonio, offers evidence that purports to show a connection
between purely off-site businesses, or “bookstores,” and harmful
secondary effects…

Kennedale’s evidence consisted of studies from nine cities, as
well as an opinion survey of land use appraisers conducted by the
city’s attorney, and citizen commentary from public meetings.
Seven of Kennedale’s nine studies from other cities fail to
differentiate between on-site and off-site businesses. The 1984
Indianapolis and 1986 Oklahoma City studies [see below], however, included
surveys of real estate appraisers that focused strictly on “adult
bookstores.” The overwhelming majority of survey respondents in
both studies predicted that the presence of an adult bookstore
would negatively affect real estate value in the surrounding area.
The Indianapolis survey, conducted by the City of Indianapolis in
conjunction with Indiana University School of Business, Division of
Research, polled 20% of the national membership of the American
Institute of Real Estate Appraisers.[4] Eighty percent of the
respondents predicted that an adult bookstore would negatively
impact residential property values, and seventy-two percent
believed commercial property value would also be negatively
effected. The Oklahoma City study, which surveyed one hundred
Oklahoma City real estate appraisers, produced similar results:
Seventy-four percent predicted a negative impact on real estate
value in the surrounding area…

Standing alone, it is reasonable to infer that the survey
respondents interpreted “bookstore” as signifying an off-site
establishment. Webster’s Dictionary defines “bookstore” as “a
place of business where books are the chief stock in trade.”
WEBSTER’S NEW INT’L DICTIONARY 253 (3d ed. 1981). There is no reason to
expect that simply adding the word “adult” to the term would
completely transform the nature of the business activity described… It is reasonable for Kennedale to believe that the appraisers responding to the survey understood the term “adult bookstore” to mean off-site businesses, such as that operated by the plaintiff-appellee.

Kennedale’s ordinances purport to protect against harmful
secondary effects. The Indianapolis and Oklahoma City studies
support the belief that off-site sexually oriented businesses cause
harmful secondary effects to the surrounding area in the form of
decreased property value. So long as they are not relying on
shoddy data or reasoning, we afford substantial deference to cities
with regards to the ordinances they enact. See Alameda Books, 535
U.S. at 451 (Kennedy, J., concurring) (noting that “a city must
have latitude to experiment” and “courts should not be in the
business of second-guessing fact-bound empirical assessments of
city planners”). The Indianapolis survey, in particular, was
drafted by experts, pretested, and administered to a large,
national pool of respondents. It is not “shoddy.” We therefore
find that Kennedale has produced evidence that it could have
reasonably believed was relevant, and thus could have properly
relied upon. The ordinances are narrowly tailored to advance a
substantial governmental interest…

We are pleased with the court’s decision. More generally, however, we are skeptical of the whole notion of ‘off-premises’ consumption. As anyone who has been in an adult bookstore knows, the shelves are lined floor to ceiling with movies and magazines with explicit covers. Unless you’re blindfolded, to select and buy anything is to consume porn. Here are some movies one visitor found displayed recently in the Very Intimate Pleasures shop in Manchester, CT. VIP’s attorney, Daniel Silver, tries to characterize this kind of store as a “romance shop”:

“Torture of Pixie,” “Gag Factor.” ” Teens for Cash,” “MILF’s Gone
Anal,” (MILF is an acronym for Mother’s I’d Like to F___) “Labor of
Love” this was a series of pregnant porn, “Backend Bi-Boys,” “Gang Bang
that P_ssy” – volumes 1-8!!! “Over 40 and Still Gang-banging,” -gang
bang is in scores of other titles as well, “Screw my Wife, Please!,”
“Interracial Throat Bangers,” “Pain Threshhold,” “Guys Who Suck Their
Own C_cks” -I could not make this stuff up!, “Facial Frenzy,” “The
Violation of Aurora Snow: A Lesbian Gang Bang,” “Don’t Tell Mommy,”
“Little Girl Next Door,”-I think this is the scariest as my 4 year old
may wind up being the little girl next door to them!

We’d also like to pass along an insight from a lawyer experienced in adult enterprise litigation. Adult bookstore customers like to pay in cash. A lot of cash piles up in the store. The store becomes an attractive target for robbers. To this we add that adult enterprises often locate near highways, further increasing the attraction for criminals looking to make a quick getaway.

See also:

Understanding and Preventing Violence, Volume 3: Social Influences (1994)
…Sherman et al.’s (1989) finding that relatively few “hot spots” produce a large proportion of predatory crime. Indeed, Sherman et al. (1989:39) found that all robberies and rapes in Minneapolis during 1986 occurred at less than 3 percent of “places,” particularly bars, parks, adult bookstores, and convenience stores.

Secondary Effects Across America: 1977-1999
Indianapolis, IN, 1984
From 1978-82, crime increases in the study areas were 23 percent higher than the control areas (46 percent higher than the city as a whole). Sex-related crimes in the study areas increased more than 20 percent over the control areas. Residential locations in the study areas had a 56 percent greater crime increase than commercial study areas. Sex-related crimes were four times more common in residential study areas than commercial study areas with sexually oriented businesses.

Homes in the study areas appreciated at only half the rate of homes in the control areas, and one-third the rate of the city… Appraisers responding to the survey said one sexually oriented business within one block of residences and businesses decreased their value and half of the respondents said the immediate depreciation exceeded 10 percent. Appraisers also noted that value depreciation on residential areas near sexually oriented businesses is greater than on commercial locations.

Oklahoma City, OK, 1986 and 1984-1989 (PDFs)
This study contained the results of a survey of 100 Oklahoma City Real Estate Appraisers. Appraisers were given a hypothetical situation and a section to comment on the effects of sexually oriented businesses in Oklahoma City. The hypothetical situation presented a residential neighborhood bordering an arterial street with various commercial properties which served the area. A building vacated by a hardware store was soon to be occupied by an “adult” bookstore. No other sexually oriented businesses were in the area and no other vacant commercial space existed. With less than a one month response time, 34 completed surveys were received by the city.

Thirty-two percent of the respondents said that such a bookstore within one block of the residential area would decrease home values by at least 20 percent. Overwhelmingly, respondents said an “adult” bookstore would negatively affect other businesses within one block (76 percent). The level of depreciation is greater for residents than businesses… Frequent problems cited by the appraisers included the attraction of undesirable clients and businesses, safety threats to residents and other shoppers (especially children), deterrence of home sales and rentals, and immediate area deterioration (trash, debris, vandalism).

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