Would you want a sexually oriented adult bookstore opening within a block of your house? Or semi-nude entertainment close to your place of worship? Perhaps a sexually oriented "novelty shop" within sight of the park where your children play or the school they attend?
The recent lawsuit filed against Garfield Township by the owner of Fantasies Unlimited suggests it is a good time to consider these questions.
Although the facts of this particular suit are limited to an adult sexually themed store, the broader question of responsible and legal regulation of all sexually oriented businesses deserves serious consideration by local governments.
Addressing the potential for new sex-related businesses in a community, one approach is to do nothing. Many people consider such a business to be like any other commercial enterprise and deserving of the same accommodations.
Others believe, I would argue, that these are businesses with the potential to seriously weaken the social fabric of their community. For these citizens, the ideal solution may well be to completely bar such firms from their community. Legally, that is not permissible.
The current Supreme Court interprets the constitution such that pornography that is not obscene and does not involve children is speech that enjoys First Amendment protection. Nude and semi-nude dancing is protected as "erotic expressive speech."
Speech cannot be unduly burdened by requiring prior approval by public officials, meaning the "speech" of adult businesses can't be actually or constructively banned. But while sexually oriented businesses cannot be unduly burdened or entirely excluded, there are ways to effectively minimize their potential negative effects through local regulations.
These businesses can be subject to local geographic zoning regulations and licensing requirements. But the regulations cannot be based on the sexual content of the business itself. Moral and religious beliefs are not legal grounds for government action. Rather, geographic regulation must relate to the negative secondary effects that often accompany such businesses.
Numerous studies have documented that these businesses depress nearby property values. Other recognized effects include more crime, higher local incidence of sexually transmitted diseases and prostitution.
While the First Amendment protects these businesses against complete prohibition and undue burdens, it also allows for reasonable time, place and manner restrictions that can substantially protect a community. Likewise, licensing regulations relating to the health, safety and welfare of a community can be enforced, but must be carefully crafted and contain certain procedural safeguards.
There is no insurance against a sexually oriented business locating in your area, or bringing a lawsuit against your local government. But being prepared for such events means having a zoning ordinance that reflects current case law, is clearly based on specific findings and is carefully designed to prevent the negative secondary effects of sexually oriented businesses.
Licensing requirements can, and should, augment the zoning ordinance. Then, maintaining the ordinances at a "state of the art" level through regular review will provide optimal protection against lawsuits and negative effects of unregulated sexually oriented businesses.
What is your planning commission doing next month?
About the author: Professor Steven Francis is an attorney, a political scientist, a trustee on the Village of Elk Rapids Council, and council representative to the village planning commission.
About the forum: The forum is a periodic column of opinion written by Record-Eagle readers in their areas of interest or expertise. Submissions of 500 words or less may be made by e-mailing letters@record-eagle.com. Please include biographical information and a photo.
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