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Adult entertainment businesses present one of the most difficult land use problems for cities. These enterprises enjoy considerable latitude to operate — despite their contribution to community blight — because the courts have deemed non-obscene sexually explicit entertainment to be constitutionally protected speech. In order to maximize regulatory authority and successfully mitigate the negative impacts of such uses, three strategies should be followed.
1. Narrowly Define the Use
Many people use the term “adult entertainment business” to refer to any commercial establishment that customarily excludes minors. Some municipalities have codified this broad definition in their zoning ordinance, including businesses ranging from adult bookstores and theaters to massage parlors and adult tanning salons.
A city should more narrowly define what constitutes an adult entertainment business. Bear in mind that the constitutional protection for “speech” applies only to what is deemed “expressive” activity. This primarily encompasses movie exhibitions and book and video sales, and, to a lesser degree, erotic dancing performances.
Enterprises engaged in protected speech generally have to be afforded special treatment. For example, there must be a streamlined review process with objective approval criteria when a permit is required for adult movie theaters or bookstores. This means that municipalities must act quicker and can exercise less discretion with respect to these types of commercial establishments. One consequence of a broad adult entertainment business definition may be that regulatory authority is unnecessarily hindered as to adult uses that do not involve protected speech, such as massage parlors and adult tanning salons.
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2. Compile “Secondary Effects” Studies; and
3. Allow a “Reasonable Opportunity” For Operation