Very Intimate Pleasures Loses Another Round in Berlin, CT

Congratulations to NO V.I.P. in Berlin, CT. The Connecticut Supreme Court just upheld Berlin’s ordinance that requires adult-themed businesses to keep at least 250 feet away from residential zones. Very Intimate Pleasures, an adult toy and video shop, had tried to argue that this ordinance was invalid because it had been passed by the town council rather than the town’s planning and zoning commission. The Hartford Courant reports:

Adult Products Store Vows Federal Court Fight Against Berlin (5/20/08)

[Laura] Michaud helped to organize residents in her Webster Heights neighborhood against VIP in 2006 when she read about the company’s plans to move next door. She blogs about the issue at, and she used to keep her neighbors aware of coming meetings with a large sign on her lawn.

“The whole neighborhood now really knows each other,” she said…

Now, [VIP attorney Daniel] Silver will argue in federal court in Bridgeport that the ordinance is unconstitutional because it overrides VIP’s First Amendment right to sell items such as books and magazines…

“The studies that have been relied upon by the town … and other municipalities across the country have not addressed whether or not my client’s proposed business actually would create these so-called secondary effects,” Silver said. “There have been a number of studies that show it does not.”

Silver has his work cut out for him. American courts have generally indicated they are comfortable with today’s body of secondary effects studies and how municipalities rely on them. For example:

Attorney General Files Amicus Brief to Support Town of Berlin;
“Off-Site” Sexually Oriented Businesses are Fair Game for Zoning

[From the amicus brief:] Although most of these studies considered the secondary effects of all
types of [sexually oriented businesses], it should be noted that the Indianapolis Study [PDF link] and the Oklahoma City study [PDF link 1, PDF link 2] focused specifically on “adult bookstores.”
In the Indianapolis study, approximately 75% of real estate appraisers
surveyed responded that an adult bookstore would have a significant
negative effect on the value of both residential and commercial
properties within a one block radius of the store. See Indianapolis
Study, pp. 34 and 51. Most of these appraisers estimated that the
decrease in residential property values would be between 1 and 20%, but
21% of the appraisers predicted that the loss would exceed 20%. Id., p.
34. Similarly, in the Oklahoma City Study, 74% of responding real
estate appraisers indicated that an adult bookstore within one block of
a residential neighborhood would decrease property values. Thirty two
(32) percent of these appraisers believed that the decline would exceed
20%, while forty two (42) percent believed that the decline would be
between one and twenty percent. City of Oklahoma City, Community
Development Department, Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate Appraisers
(March 3, 1986). As the Fifth Circuit recently concluded, “[t]he
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.” H and A Land Corp. v. Reliable Consultants, Inc., No. 05-11474, 2007 U.S. App. Lexis 3941 at *12 (5th Cir. Feb. 22, 2007).

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

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’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.]

US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002) (emphasis added)
…Speech can produce tangible consequences. It can change minds. It can
prompt actions. These primary effects signify the power and the
necessity of free speech. Speech can also cause secondary effects,
however, unrelated to the impact of the speech on its audience. A
newspaper factory may cause pollution, and a billboard may obstruct a
view. These secondary consequences are not always immune from
regulation by zoning laws even though they are produced by speech.

Municipal governments know that high concentrations of adult
businesses can damage the value and the integrity of a neighborhood.
The damage is measurable; it is all too real. The law does not require
a city to ignore these consequences if it uses its zoning power in a
reasonable way to ameliorate them without suppressing speech

A zoning measure
can be consistent with the First Amendment if it is likely to cause a
significant decrease in secondary effects and a trivial decrease in the
quantity of speech.

Appeals Court Upholds Daytona Zoning and Public Nudity Ordinances; No
Grandfathering for Lollipop’s Gentlemen’s Club; Rebutting Daniel Linz
(7/07, emphasis added)
Under O’Brien’s second prong, a city must establish that the challenged ordinance furthers a substantial government interest. Pap’s A.M., 529 U.S. at 296 (plurality opinion).[19] It
has been by now clearly established that reducing the secondary effects
associated with adult businesses is a substantial government interest
“that must be accorded high respect.”
City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring in the judgment) (quotation marks omitted);[20] see also Pap’s A.M., 529 U.S. at 296 (plurality opinion) (“[C]ombating the harmful secondary effects associated with nude dancing [is] undeniably important.”); Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir. 2003) (“It
is beyond peradventure at this point in the development of the doctrine
that a state’s interest in curbing the secondary effects associated
with adult entertainment establishments is substantial.”

Our opinion in Peek-A-Boo Lounge is consistent with Justice Kennedy’s concurrence in Alameda Books and with Renton. There, a panel of this Court held that “[t]o satisfy Renton,
any evidence ‘reasonably believed to be relevant’ — including a
municipality’s own findings, evidence gathered by other localities, or
evidence described in a judicial opinion — may form an adequate
predicate to the adoption of a secondary effects ordinance,”
Peek-A-Boo Lounge,
337 F.3d at 1268, and we remanded that case with specific instructions
to uphold the ordinance “provided that the County[’s] . . . judgment is
still supported by credible evidence, upon which [it] reasonably relies,” id. at 1273 (emphasis added).

Lollipop’s argument that the City’s evidence is flawed because it
consists of “anecdotal” accounts rather than “empirical” studies
essentially asks this Court to hold today that the City’s reliance on
anything but empirical studies based on scientific methods is
unreasonable. This was not the law before Alameda Books, and it is not the law now.
See Alameda Books,
535 U.S. at 451 (Kennedy, J., concurring in the judgment) (reiterating
that a city need not “conduct new studies or produce evidence
independent of that already generated by other cities” (quoting Renton, 475 U.S. at 51-52)); Pap’s A.M.,
529 U.S. at 300 (plurality opinion) (criticizing the dissent for
“ignor[ing] Erie’s actual experience and instead requir[ing] . . . an
empirical analysis”). Rather, the City of Daytona Beach could reasonably rely upon “[c]ommon sense,” see Bellanca, 452 U.S. at 718, “its own experiences,” see Pap’s A.M., 529 U.S. at 300 (plurality opinion), “the experiences of . . . other cities,” Renton, 475 U.S. at 51, or city officials’ local knowledge, see Alameda Books,
535 U.S. at 451-52 (Kennedy, J., concurring in the judgment) (“The Los
Angeles City Council knows the streets of Los Angeles better than we
do. It is entitled to rely on that knowledge . . . .” (citations
omitted)); see also Pap’s A.M., 529 U.S. at 297-98 (plurality opinion).

To be sure, as the Alameda Books
plurality admonished, the City cannot “get away with shoddy data or
reasoning,” and its evidence must “fairly support” its rationale. See
535 U.S. at 438 (plurality opinion). But this is simply another way of
saying that the City’s reliance on evidence supporting its rationale
must be reasonable. Anecdotal evidence is not “shoddy” per se. At most, Lollipop’s experts’ studies suggest that the City could
have reached a different conclusion during its legislative process
about the relationship between adult theaters and negative secondary
effects. But demonstrating the possibility of such an alternative does
not necessarily mean that the City was barred from reaching other
reasonable and different conclusions.
See G.M. Enters., Inc. v. Town of St. Joseph,
350 F.3d 631, 639 (7th Cir. 2003) (“Although this evidence shows that
the [town] might have reached a different and equally reasonable
conclusion regarding the relationship between adverse secondary effects
and sexually oriented businesses, it is not sufficient to vitiate the
result reached in the [town’s] legislative process.”); see also Alameda Books,
535 U.S. at 437 (plurality opinion) (noting that a city “does not bear
the burden of providing evidence that rules out every theory . . . that
is inconsistent with its own”).

Our review is designed to
determine whether the City’s rationale was a reasonable one, and even
if Lollipop’s demonstrates that another conclusion was also reasonable,
we cannot simply substitute our own judgment for the City’s. See Peek-A-Boo Lounge, 337 F.3d at 1273; see also Barnes,
501 U.S. at 583 (Souter, J., concurring in the judgment) (“At least as
to the regulation of expressive conduct, ‘[w]e decline to void [a
statute] essentially on the ground that it is unwise legislation . . .
.’” (quoting O’Brien, 391 U.S. at 384 (alterations in original))); Renton,
475 U.S. at 52 (“It is not our function to appraise the wisdom of [the
city’s] decision to [regulate] adult theaters . . . .” (second
alteration added and quotation marks omitted)); cf. Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (“[C]ourts should not be in the business of second-guessing fact-bound empirical assessments of city planners.”).

The City of Daytona Beach relied on, among other things, the Supreme Court’s decisions in Bellanca, LaRue, Barnes, and Pap’s A.M.;
numerous police reports of criminal activity — including prostitution
and assaults on police officers — in and around adult theaters;
undercover police investigations that revealed numerous violations of
City ordinances by adult theaters; the City’s police chief’s
documentation of criminal activity in and around adult theaters; CAD
data showing calls-for-service to police dispatchers from areas near
adult theaters; extensive testimony taken in Function Junction,
705 F. Supp. at 547-48; studies conducted by Boston and Detroit showing
that adult businesses tend to increase urban blight; studies of urban
blight and decay in Daytona Beach; controlled laboratory studies
showing a correlation between alcohol and sexual conduct; anecdotal
accounts from local business owners about increased crime in and around
adult theaters; and newspaper articles describing increases in problems
related to nudity and alcohol surrounding events such as Spring Break
and Black College Reunion. Because Lollipop’s has failed to cast
direct doubt on the aggregation of evidence that the City reasonably
relied upon when enacting the challenged ordinances, we hold that the
ordinances further a substantial government interest under O’Brien.

a close examination of Lollipop’s experts’ studies calls into question
their stated conclusion that they “cast grave doubt” on the City’s
evidence that adult theaters increase crime, and, equally important,
the studies do not even purport to address the City’s evidence that
adult theaters tend more generally to perpetuate urban blight and
decay. First, one underlying methodological problem with both studies
suggests that they cast little or no doubt on the City’s evidence that
nudity in establishments that serve alcohol encourages “prostitution, .
. . undesirable behavior . . ., [and] sexual, lewd, lascivious, and
salacious conduct among patrons and employees . . . in violation of law
and [en]dangers . . . the health, safety and welfare of the public.” See
Ordinance 81-334 § 2. The experts’ studies are based solely on CAD
data, which, in lay terms, is essentially 911 emergency call data.
Relying on such data to study crime rates is problematic, however,
because many crimes do not result in calls to 911, and, therefore,
do not have corresponding records in the City’s CAD data.[31] This is
especially true for crimes, such as lewdness[32] and prostitution, that
the City sought to reduce by enacting the challenged ordinances.
Ordinance 02-496 § 5 (seeking to reduce “lewd and lascivious behavior,
prostitution, sexual assaults and batteries, . . . other criminal
activity, [and the] degradation of women”); Ordinance 81-334 § 2
(seeking to reduce “prostitution, . . . undesirable behavior, . . .
[and illegal] sexual, lewd, lascivious, and salacious conduct among
patrons and employees” of adult theaters); see also Ordinance 03-375 § 4 (relying on legislative record for Ordinances 81-334 and 02-496).

crimes are often “victimless,” in the sense that all of those involved
are willing participants, and, therefore, they rarely result in calls
to 911. College students on Spring Break are unlikely to call 911 after
a wild night out on the town despite having participated in exactly the
sort of activity that the City’s nudity ordinances were enacted to
reduce. Likewise, an encounter between a prostitute and a “john” rarely
leads to a 911 call. By contrast, the City’s “anecdotal” evidence may
be a more accurate assessment of such crimes because it is not based on
a data set that undercounts the incidents of such “victimless” crimes.
Cf. World Wide Video of Wash., Inc. v. City of Spokane,
368 F.3d 1186, 1195-96 (9th Cir. 2004) (“Anecdotal evidence and
reported experience can be as telling as statistical data and can serve
as a legitimate basis for finding negative secondary effects.”
(citation and alteration omitted)).[33]

A second problem with
Lollipop’s experts’ studies is that, even if the underlying CAD data
fully reflected all of the conduct that Daytona Beach sought to reduce,
the experts appear to draw conclusions that overstate the underlying
data. For example, the study that focuses on Ordinance 81-334 concludes
that “crimes against persons, crimes against property, and sex crimes,
including both rape and prostitution[,] are not more common in areas
with adult businesses than they are in similar control areas.”
(Experts’ Report 2.) But the experts’ own underlying data suggests
otherwise — for three of the six pairs of study and control areas that
the experts examined, “the study areas [i.e., areas with adult
theaters,] do show significantly higher rates of crime than the control areas.”
(Id. at 29-30 (emphasis added).)

experts attempt to explain away this result by pointing to the other
three pairs — two show no “significant” difference between study and
control areas, and one shows a significantly higher crime rate in the
control area than the study area. The experts assert, without much
discussion, that “[t]his mixed pattern” shows that “factors other than
the presence of a nude cabaret are affecting rates of crime.” (Id. at 30.) The
experts are no doubt correct that factors other than the presence of
adult theaters affect crime rates in Daytona Beach; crime is plainly
caused by many factors. But that does little to undermine the City’s
conclusion that adult theaters also affect crime rates,
especially when the experts’ own analysis shows a statistically
significant correlation between adult theaters and increased crime in
half of the areas in the study.

Finally, both studies
focus only on criminal activity and do not even purport to address the
connection between adult theaters and urban blight. Ordinance 03-375,
which amended Ordinance 02-496, was supported by testimony from Function Junction
that adult theaters promote and perpetuate urban blight, which in
Daytona Beach was characterized by “a significant percentage of
deteriorating structures; a large number of small . . . lots, which did
not allow cars; a notable parking problem; a high incidence of crime,
particularly, on the beachside; and a large percentage of antiquated,
underground utility systems, such as drainage, water and sewer
systems.” 705 F. Supp. at 547. Lollipop’s experts’ studies examine
only one of these conditions — high crime rates — and, notably, do
not address at all the City’s evidence that adult theaters tend to
perpetuate these other features of urban blight.
Although Lollipop’s experts argue that the testimony provided in Function Junction
was based on unreliable data and methodologically unsound analysis, we
repeat that the City’s reliance on such evidence need only have been reasonable, and it was.

short, the CAD data relied on by both studies may substantially
undercount incidents of many of the types of crime that the City sought
to reduce; the data that the studies did analyze show some
statistically significant correlations between adult theaters and
increased criminal activity; and the studies completely fail to address
evidence of increased urban blight and decay that the City reasonably
relied on when enacting Ordinance 03-375. Thus, Lollipop’s has
failed to cast direct doubt on all of the evidence that the City
reasonably relied on when enacting the challenged ordinances
. See Peek-A-Boo Lounge, 337 F.3d at 1268 (noting that “the government must rely on at least some pre-enactment evidence” (emphasis in original)); Wise Enters., Inc. v. Unified Gov’t of Athens-Clarke County, 217 F.3d 1360, 1364 (11th Cir. 2000) (noting that a municipality “must have some factual basis” for its rationale (emphasis in original) (quotation marks omitted)); see also World Wide Video, 368 F.3d at 1195 (explaining that a city needs only “some” evidence to support its ordinances); Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 481 (5th Cir. 2002) (“Renton teaches us that the government must produce some
evidence of adverse secondary effects . . . .” (emphasis in original)
(citation omitted)). Accordingly, we hold that Ordinances 81-334,
02-496, and 03-375 further a substantial government interest under O’Brien.[35]

See also:

Porn Merchant Implies: Host Community Put at Risk So Outsiders Might Enjoy Themselves
“We’ll be helping the community, maybe not Berlin, but surrounding
communities,” [VIP general manager Gary] Porter said jokingly, “community service is what we’re
all about.”

Notorious Pornographer: Giant Porno
Stores Not Appropriate for Residential Neighborhoods (explicit language)

Victory in Berlin, CT: Court Rules Town Council Has Authority to Enact Zoning (7/13/08)

Citizens, Officials Use Zoning to Protect Quality of Life in Berlin, Connecticut (11/2/06)

Journal of Planning Literature: Adult Bookstores
Often Increase Fear of Crime, Discourage Walking

The land uses that line up a street or surround a public space are
crucial for their safety. Abandoned buildings, liquor stores, seedy
motels, bars, check-cashing establishments, pawnshops, and adult
bookstores and movie theaters can generate crime because they can
encourage antisocial behavior, concentrate lucrative targets, and
attract potential criminals (Spelman 1993; Block and Block 1995). Such
uses often give a neighborhood a bad reputation and increase the fear
of crime.

NoPornNorthampton Reaches Out to Springfield Neighborhood with Advice on Adult Enterprises (4/30/07)
Springfield police dispatch reports
from December 1998
through April 2007 paint a picture of burglaries, panic alarms,
ambulance calls and altercations in and around the store at
Apremont Triangle…

Police Commissioner: “…it is fair to say that ‘Amazing’ constitutes
an attractive nuisance that contributes to blighted conditions there”

Setback for Love Shack in Johns Creek, Georgia (2/22/08)
Since the inception of Johns Creek in 2006, the city has been trying to get John Cornetta, a regional porn shop operator, to comply with the city’s adult-use zoning ordinances.

Struggle Over “Love Shack” in Georgia; New City Adopts State-of-the-Art Adult-Use Ordinance
The Johns Creek SOB ordinance
( PDF, 5.9 MB ) was adopted [in December 2006]. In many aspects it
appears to be the ‘state of the art’ in adult-use regulations. It cites
the latest relevant court cases and many recent secondary effects
studies, and addresses some of the dodges adult businesses have used to
try to get around ordinances elsewhere (see “Spanish Popeye”).