Source: AP
By: Richard Carelli
(WASHINGTON) — The Supreme Court refused on Monday to let Jacksonville, Fla., enforce an ordinance that required sexually oriented businesses to obtain special exceptions before operating in almost any part of the city.
Denying without comment an appeal filed by city officials, the justices left intact a ruling that called the zoning ordinance an unlawful “prior restraint” on those businesses’ freedom of expression.
The case had been pending before the justices since last August. They apparently postponed consideration of it while studying a nude-dancing dispute from Erie, Pa. In that case, the justices upheld a public-nuisance law last week that requires dancers to wear pasties and G-string.
A group of businesses known as “lingerie shops” challenged the Jacksonville zoning restriction. Rather than sell women’s apparel, these establishments specialized in nude dancing.
A federal trial judge upheld the challenged ordinance as applied to those businesses, but the 11th U.S. Circuit Court of Appeals reversed that ruling last May.
Noting that a special exception was needed for locating an adult-entertainment business everywhere but two locations in Jacksonville, the appeals court called the special exception the equivalent of a license.
The zoning ordinances would allow such establishments at more than 90 locations, as long as a special exception was obtained.
“As a form of prior restraint, licensing schemes commonly contain two defects: discretion and the opportunity for delay,” the appeals court said. “Jacksonville’s zoning exceptions contain both defects.”
The 11th Circuit court said city zoning officials had virtually unbridled discretion in deciding whether to grant special exceptions, and they could delay indefinitely any action on applications for exceptions.
The Supreme Court has given communities broad leeway since 1976 to determine where such businesses are allowed with a ruling that restrictions must be judged under a deferential “time, place and manner” standard.
In the Jacksonville case, the appeals court acknowledged that “combating the harmful secondary effects of adult businesses such as increased crime and neighborhood blight is a substantial government interest.”
The appeals court said drafting an ordinance that addresses those harmful effects and protects the businesses’ free-expression rights is not difficult, but that Jacksonville had failed to do so. It said the city must allow the lingerie shops to locate in any of the more than 90 locations without first getting a special exception, as long as all other zoning code requirements were met.
In the appeal acted on today, lawyers for the city said the zoning ordinances did not “seek to suppress … First Amendment rights but rather … preserve the quality of life for the citizens of the city of Jacksonville.”
The case is Jacksonville vs. Lady J. Lingerie, 99-356.
