Law Article: “Preventing the Secondary Effects of Adult Entertainment Establishments: Is Zoning the Solution?”

Dana M. Tucker makes health, safety and economic arguments for regulating adult entertainment establishments in “Preventing the Secondary Effects of Adult Entertainment Establishments: Is Zoning the Solution?”, 12 Journal of Land Use & Environmental Law 383 (1997). The bracketed numbers refer to footnotes.

Health impact of porn shops with viewing booths (pages 414-417)

One of the adverse secondary effects attributed to the use and location of adult use businesses is the increased spread of HIV. Many local officials consider the rapid spread of HIV and AIDS in many cities throughout the country, its incurable and fatal nature, and its mode of transmission.[227] During the 1980s, HIV infection emerged as a leading cause of death in the United States among young adults aged 25 to 44 years.[228] By 1989, HIV infection had become the second leading cause of death in men and the sixth leading cause of death in women in this age group, accounting for 14% and 4% of deaths respectively.[229] “[M]ost AIDS cases in men result from HIV transmission by homosexual contact, and high incidence rates of AIDS related to homosexual contact are widespread in many states across the country.”[230] Thus, preventing the spread of HIV has been cited as a reason for enacting ordinances to restrict or prohibit closed viewing booths in adult establishments that provide peep shows of nude dancers or coin-operated X-rated video viewing.[231]

Many local governments have found that viewing booths in adult establishments have been or are being used by patrons as places to engage in sexual acts, particularly between males, including but not limited to intercourse, sodomy, oral copulation and masturbation, resulting in unsafe and unsanitary conditions.[232]

The viewing booths at these adult establishments are small closet-sized rooms that are divided from adjoining booths by plywood petitions. The plywood petitions have holes cut in them which permit the occupant of one booth to engage in sexual contact with the occupant of the adjoining booth, and consequently, the potential to spread HIV.[233]

Local ordinances that govern the physical layout of these types of adult establishments require that each booth, room, or cubicle be totally accessible to and from aisles and public areas of the establishment and shall be unobstructed by any door, lock, or other control-type devices.[234] These time, place, and manner regulations seek to diminish the spread of contagious diseases caused by high risk sexual conduct by regulating certain commercial facilities where high risk sexual conduct has been found to have taken place.[235] Evidence has shown that high risk sexual activities [including] multiple, anonymous sexual encounters and casual sexual activity occur in adult establishments that offer such viewing booths.[236] Testimony by patrons of these adult establishments evidence that fellatio, anal intercourse and mutual masturbation take place in the viewing booths.[237] The employees of these establishments have also testified that semen was found on the walls or floors of the viewing booths.[238] Thus, courts have found restrictive ordinances for the viewing booths to be valid based on the local government’s substantial interest in ensuring sanitary public places to retard the spread of sexually transmitted diseases, like AIDS.[239]

Danny’s New Adam & Eve Bookstore discussed the potential spread of HIV and AIDS in adult entertainment establishments that offer closed viewing booths.[240] A Pennsylvania state appeals court upheld a lower court decision closing down certain areas of two adult bookstores and video establishments that were found to be public nuisances because they threatened the spread of HIV.[241] The decision arose on a consolidated appeal by Danny’s New Adam & Eve Bookstore and Book Bin East, which both sold sexually oriented video tapes, books, and magazines, as well as offered coin-operated video viewing booths.[242] Agents for the state testified that a number of the booths had holes between them that allowed patrons to have oral sex with persons in the adjacent booth.[243] A state agent also testified that in the “Couch Dancing” area of the Book Bin East, dancers offered to have sex with him for money.[244] In addition to this testimony, a patron of these establishments testified that he was infected with HIV and that he had engaged in intercourse in the establishments on several occasions.[245]

The court found that “[c]ompetent evidence exists in the record to support the trial court’s conclusion that sexual conduct, occurring on the premises, could lead to the spread of HIV which may result in AIDS.”[246] The court further held that the “citizens of the Commonwealth of Pennsylvania will suffer irreparable harm if defendants continue to maintain video viewing booths and areas utilized [as] ‘California Couch Dancing’ where sexual activity has taken place which could lead to the spread of HIV.”[247] Thus, the court considered the spread of HIV a legitimate state concern to justify regulation.

Effect of adult businesses on crime (pages 417-418)

Numerous studies have been conducted in cities throughout the United States to determine the relationship between increased crime rates and decreasing property values, including Austin, Texas; Orange County, Florida; Dallas, Texas; Los Angeles, California; Tampa, Florida; and Palm Beach County, Florida.[250] The reports describe the methodology and results of studies done between 1984 and 1985 in Los Angeles, California and Austin, Texas and are reasonably detailed.[251] The Austin study compared rates of sex-related crimes and other crimes in four study areas, all of which contained one or two adult businesses, to the corresponding crime rates in control areas, which were said to be near the study areas and similar in land use characteristics, but without adult entertainment establishments.[252] Generally the crime rates were found to be higher in areas containing adult establishments than in their corresponding control areas.[253] Crime rates were higher for both sex-related and non-sex-related crimes.[254]

…Additionally, a New York City study shows that the most severe crime, prostitution, and urban blight occur when adult businesses concentrate in one particular area of a city.[259]… [S]urveys of police officers and comments of citizens at public hearings have consistently expressed the view that the presence of adult businesses have had a negative effect.[261]

Effect of adult businesses on property values (pages 418-419)

The most common study approach has been to solicit the opinions of real estate appraisers, lenders, or property owners about the effect of adult businesses on nearby residential or commercial properties.[263] Results of these surveys show that the majority of people surveyed would not buy a house or open a business near an adult business.[264] Additionally, real estate professionals and residents generally agree that adult entertainment lowers property values “from moderate to substantial amounts.”[265]

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