Wednesday, April 14, 2010

It's not easy to open a neighborhood sex shop

The First Amendment prevents towns and villages from outlawing sex shops, but the courts give them a fair amount of leeway to regulate their location. A recent Second Circuit case gives you a good primer on the rules of the road.

The case is TJS of New York v. Town of Smithtown, decided on March 10. I would guess that the average person does not want this "filth" in his neighborhood. On the other hand, someone is obviously frequenting these adult entertainment places, or they would not be in business. Unless the mayor is a customer, there is no easy way to reconcile these competing issues.

First things first. The Court of Appeals (Calabresi, Winter and Sack) outlines the Supreme Court's framework for evaluating the legality of restrictions on these businesses. Municipalities can regulate these places so long as they leave open "reasonable avenues of communication for adult-only businesses." Normally, you can find them on the edge of town somewhere. These alternative locations have to provide a "reasonable opportunity to locate and operate such a business."

The first question is one that the Second Circuit has never resolved: what is the time frame in determining whether the town is providing a reasonable alternative for these businesses. Do we look to whether there were any such locations when the law was passed, or is that question answered when the lawsuit is filed? The operative time frame is when the lawsuit is filed. This means that the regulation could be constitutional when the town passed it in 1974, but subsequent development and construction may render the regulation unconstitutional in 2010 if there are no good places left for the adults-only nightclub. Although the Town argues that this new rule will over time permit repeated lawsuits against the same law, Judge Calabresi provides the benefits of this new rule:

Although the rule we endorse today might in some circumstances open ordinances up to more than one attack, it would only do so if there were significant changes in the surrounding community. And the burden of pleading and proving such charges with particularity could well be put on the plaintiff. Furthermore, the implications of the reverse rule would be constitutionally troubling. If the only relevant question were whether an ordinance provided adequate alternatives on the day of its passage, any law that did so would thereafter be immune from First Amendment challenge. And speech that the Supreme Court has held to be protected by that Amendment would be silenced. Conversely, a strict time-of-passage rule might arguably make it impossible for a city to save a constitutionally deficient ordinance: post-enactment remedial measures taken by a city to make alternative sites more available (such as opening new land to development) would, in theory, seem to be just as constitutionally irrelevant as developments limiting the availability of such alternatives. Our holding avoids these perverse results.

So TJS of New York makes it easier for other adult-only businesses to operate in your hometown. But TJS is unable to win this case as to its own business ambitions. Although the Town has to make space available for these businesses, it does not have to provide them the best possible locations. "Where the physical features of a site or the manner in which it has been developed are 'totally incompatible with any average commercial business,' or the site lacks the basic infrastructure that is a precondition to private development, it should not be considered part of the relevant real estate market for purposes of determining availability." On the other hand, "whether or not sites fit the specific needs of adult businesses ... is constitutionally irrelevant."

While TJS says that the Town has to make available land that would be compatible with other businesses sharing similar physical characteristics (such as Blockbuster Video, CVS Pharmacy or Wendy's), that is not the law. If the available land is too large or too small for the adult-only business, that's just too bad. "Obstacles such as the possibility of 'making due with less space than one desired,' or 'having to purchase a larger lot than one needs,' do not render property unavailable for the purpose of constitutional analysis. Alternative sites need only be available, not attractive."

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