Adult businesses challenged constitutionality of 2001  amendments to City’s  zoning resolution. A Department of City Planning study concluded in 1994 that the  City’s adult entertainment businesses caused certain negative secondary effects, such as increased crime and decreased property values. In response to this study, the City amended the zoning resolution in 1995 to bar “adult establishments” from all residential zones and most commercial and manufacturing districts. Adult establishments were defined as commercial businesses whereby a substantial portion (40 percent or more of accessible floor area) included adult uses. Thereafter, adult businesses altered their character to ensure they would not qualify as adult establishments. Believing the altered businesses were in sham compliance with the amendment, the City amended the zoning resolution again in 2001 to clarify “non- adult” material for purposes of the 40 percent calculation.

Various adult businesses challenged the First Amendment constitutionality of the 2001 amendments, and the case eventually reached the Court of Appeals. The Court ruled that the City was not required to produce empirical studies connecting altered 60/40 businesses to negative secondary effects.  The Court, however, ordered a trial to determine whether the 60/40 businesses had changed so much in character that their  main, ongoing focus was no longer sexually explicit material. If their  focus had not changed, the City would be constitutionally justified in strengthening the 1995 ordinance with the 2001 amendments. (read more…)