Cities Would Prefer That Adult Businesses Be Ex-Rated

Anaheim City Councilman Bob Zemel had just finished tying up his successful campaign to put immigration agents into his city’s jail last month when he turned to the next issue he loves to hate--businesses that cater to the sexual desires of adults.

“It’s contrary to the image that the hard-working, responsible Orange Countian has in mind,” said Zemel, who was verbally rubbing his hands in anticipation of a new task force he helped form to combat the X-rated enterprises. “It’s an issue of what does Anaheim represent: family and family values, or adult-oriented businesses.”

To image-conscious Orange County representatives, there is little room for coexistence between the two.

It took Santa Ana and Buena Park decades of court battles to rid themselves of adult movie theaters. The last one in the county, the Studio Theatre on Beach Boulevard in Buena Park, was closed down just last year.

Newport Beach revoked a business permit for the Mermaid, a restaurant with topless entertainment, in June after alleging that the establishment violated the “no touching” clause of a city ordinance. Appeals are pending.

Orange passed an emergency ordinance last year to prevent the opening of a lingerie shop featuring nude models and then made the law permanent.

Elected officials see little contradiction between the free-market, less-government philosophy of political conservatives and the campaigns to regulate businesses that conflict with family-values platforms.

“The benefit of new business is to create jobs, increase revenues and clean up the city,” Zemel explained. “These [adult] businesses do exactly the opposite. The kinds of jobs they create we don’t want. And they contribute to blight and criminal activity.”

*

The issue is not new to city attorneys. They face constant pressure from residents, churches and their elected bosses to find new legal loopholes allowing cities to make the operation of such clubs and shops more difficult by imposing complex regulations.

Cities pull out their adult business ordinances on a regular basis to tighten the regulations according to the latest decision from federal appeals courts.

Clauses mandating the distance adult businesses must be from residences and churches--and sometimes from each other--are stretched as far as the law allows. Sometimes the businesses must live without foot traffic after being restricted to certain industrial zones. And cities recently started requiring employees of sexually oriented businesses to apply for permits and submit to police background checks.

The proliferation of cases nationally has given lawyers some parameters within which they can work, said James L. Markman, who serves as attorney for several cities in the county.

“The presumption is that city officials are trying to keep them out of town,” said Markman, who just tweaked Buena Park’s ordinance to conform with a new U.S. Supreme Court decision. “The irony is that adult businesses get more protection than any other business. The nastier you are in this country, the more protection you get.”

*

That protection comes from one of the most powerful sources in the nation--the free speech clause of the Constitution’s 1st Amendment.

“Under the law, you cannot zone sexually oriented businesses out of a city,” said Costa Mesa attorney Jeffrey A. Goldfarb, who has worked with numerous cities to refine their ordinances and battle adult businesses in court.

But cities can legally work to control what the courts call “secondary effects” of adult businesses--effects that city officials describe as blight, reduced property values and increased sexual crimes.

“It’s not different from the way we do other things in zoning,” Goldfarb said. “It’s more dynamic only because the stakes are higher.”

Courts have recognized studies such as those done by Los Angeles and Garden Grove in recent years showing that crime rates go up and property values go down when adult businesses move into town. Because the impacts appear to be severe, the U.S. Supreme Court has allowed these businesses to be treated differently from other enterprises.

But the resulting rules are not always clear.

“It is difficult, but not impossible, to draft an ordinance that eliminates those secondary effects without violating the Constitution,” Goldfarb said. “It’s a difficult area of the law because it’s constantly changing.”

But attorneys representing adult businesses have their own studies showing that statistics about increased crime are an excuse for censorship.

“There are crime problems associated with every kind of business,” said Los Angeles attorney Clyde DeWitt, who represents adult businesses across the nation. “The other side of the coin is that the cities tend to relegate adult businesses to areas where there is already a high crime rate.”

*

According to DeWitt and other attorneys in the field, the real thrust behind the move to close adult businesses comes from members of the Christian right, who are vocal advocates for censorship of sexual material.

DeWitt cited statistics showing that adult videos have grown into a $4.2-billion industry, with 600 million rentals annually.

“It’s really a matter of the population not being as conservative as some small groups would like it to be,” he said.

Attorneys specializing in the field are feeling secure in their jobs, however, as each new regulation can spawn yet more litigation.

“As long as there are substantial numbers of people who want the product, and as long as there are people who want to keep them from it, basically, city government is caught in the middle,” DeWitt said. “That’s the battleground.”