Graduate School

More than 1/2 way finished with my degree in Justice Administration. I ended the semester with two As in Municipal Law and Performance Management. Also, got my draft turned in to Kim Rossmo for his book on Criminal Investigative Failures. Time for rest.

I was particularly proud of a paper I did on zoning regulations and adult establishments (there’s more than a little mischief in my choosing this topic). If you’ve got insomnia, here it is:

The Regulation of Adult Establishments in North Carolina

Municipal Law

November 15th, 2006

The regulation of adult establishments is a contentious aspect of local government management. Typically, advocates of free speech and expression face-off against opponents who wish to have the commerce of sexual materials and services controlled and limited. At its extreme, the debate is waged between merchants of adult entertainments who use constitutional arguments to justify their businesses, and political factions who use moral reasoning to justify banning these establishments outright. Neither party has been entirely successful in this debate. Laws and regulations have ensured that both sides come together in moderate compromise. Where the U.S. constitution is the primary tool of argument for adult establishments, political leaders have mainly used the General Statutes of North Carolina, as well as local government zoning ordinances to regulate the propagation of adult business. Since the 1970s, their have been many legal challenges to these laws and regulations in the Carolina courts. Adult establishments have attempted to circumvent regulations on the grounds of first amendment rights, and by debating the statutory definition of adult establishments. In general, these challenges have failed to convince the courts that adult entertainments are under threat. Equally unsuccessful are attempts by political groups to ban adult establishments completely from local communities. This paper provides a brief overview of the legal and regulatory landscape governing adult establishments in North Carolina, followed by an examination of specific court cases in the state.

Overview of laws and restrictions

North Carolina Statutes

Two key statutes address the subject of adult establishments in North Carolina. G.S. 14-202.10 covers the definition, restrictions and violation and penalties applied to adult establishments. G.S. 160A-181.1 concerns the regulation of sexually oriented businesses in the state. In G.S. 14-202-10, an adult establishment is defined as any adult bookstore, motion picture theater, live entertainment or massage business. As specified these establishments engage in, or contain materials or entertainments depicting the engagement in, “specified sexual activities” as defined in the statute.[1] Further, an establishment is said to be adult if it either receives a majority of its gross income from sexually graphic materials or activities, or contains a preponderance of materials depicting specified sexual activities.[2] As demonstrated later in the case summaries, this issue of preponderance has dominated many of the legal challenges in North Carolina.

G.S. 14-202.11 offers specific restrictions to adult establishments. These restrictions regulate many aspects of adult enterprise. For instance, under the statute no building can occupy more than one adult establishment. As well, movie or video viewing booths may not be occupied by more than one person. Finally, and most important, nothing in the statute may be seen to preempt “constitutional protection afforded by free speech”.[3] It is on this issue of free speech that many establishments have sought to test the nature of these restrictions in state courts.

Two other statutes give enforcement authority on the regulation of adult business. G.S. 14-202.12 defines the parameters for violations and penalties. The statute specifies that any infraction of the G.S. 14-202-10 and 14-202-11 constitutes guilt of a Class 3 misdemeanor for first time offences, and Class 2 misdemeanor for subsequent violations. Also, G.S. 19-1 addresses the public nuisance factor of adult establishments. G.S. 19-1 can be used against businesses that repeatedly violate local ordinances. The statute allows for injunctions for the continued misuse of properties, and allows for attorney fees and other court costs to be awarded for infractions.

Perhaps the most significant statute in terms of its use and constitutional influence is G.S. 160A-181.1. This statute grants specific authority to cities and towns for the regulation of sexually oriented businesses. As a guiding principle, the statute opens with a lengthy discussion of the secondary impact of sexually oriented businesses, observing that studies have shown increases in crime rates and decreases in property values in communities where adult businesses have located.[4] The focus on secondary impact has its origin in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). This Supreme Court case upheld the City of Detroit’s zoning ordinance as a means of defense against the propagation of adult businesses. In this landmark case the city was trying to regulate the location of adult theaters on the grounds that they tended to “attract an undesirable quantity and quality of transients, adversely affect property values, cause increases in crime, especially prostitution, and encourage residents and businesses to move elsewhere.[5]” In Young, Justice Powell created a method for balancing the interests of governments in regulating adult establishments with the counter-interests for freedom of expression called The O’Brien Test[6]. The test involves four determinants to establish the validity of any regulation that attempts to limit adult businesses[7]. First, regulations must be content neutral. That is, they should be non-judgmental about contents or activities of adult establishments. As well, the regulations should serve a substantial government interest. As previously stated that means they should be concerned with the secondary impact to the local economy. Third, regulations should provide reasonable alternative locations for the adult business to establish within the government’s jurisdiction. Finally, the regulations must be narrowly tailored to meet the government interest. They cannot be a broad attempt to restrict activities under first amendment protection. In court challenges concerning adult establishments, the O’Brien test has become the deciding factor in balancing the interests of governments and free speech.

In his paper, Regulating Sexually Oriented Businesses, David Owens argues that the key to the Young decision was the issue of content neutrality. The City had no moral objection against the adult theater – against the content displayed. The City’s argument concerned the secondary impact on property values and crime. Owens contents that, “courts will invalidate ordinances where there is no evidence at all in the record to justify a concern of secondary impacts”[8], and as will be demonstrated, legal history has bared this out[9]. Owens further demonstrates that courts are equally weary of governments that attempt to pay lip service to issues of secondary impact, hastily adopting ordinances that have content issues as ulterior motives.[10]

G.S.160A-181.1 also specifically grants local governments the authority to restrict adult businesses through “zoning regulations”, “licensing requirements” or “other appropriate local ordinances”.
[11] Thus, local governments may adopted specific and individual measures to their zoning procedures, and may require procedures and regulation through business license ordinances, or any other ordinance that the governments deems appropriate for enforcing controls on adult businesses. Other significant language in the statute gives local governments the right to enact moratoria of reasonable duration on adult establishments, and permits businesses to come into compliance with the ordinances over time (amortization).[12]

Though not singularly particular to issues of zoning locations of adult establishments, it is important to address laws governing obscenity and indecent exposure. Per G.S.14-190.1, the production and dissemination of obscene materials is a criminal offence in North Carolina. Local governments have at times overstepped their authority to include language in zoning ordinances explaining what constitutes obscene materials or actions. Several challenges have been made against these zoning ordinances on the grounds that they are preempted by G.S.14-190.1. A similar problem of preemption has occurred with laws concerning indecent exposure. G.S. 14-190.9 addresses the subject of indecent exposure and courts have ruled against local government ordinances that contain overlapping language which fall within the jurisdiction of this statute.

Local government ordinances

As mentioned above, North Carolina ordinances that remain content neutral and attempt to restrict adult business location on the grounds of secondary impacts have faired better in the courts than those that are either preemptive of state laws and/or argue from a position of moral authority. Most zoning ordinances attempt to restrict adult establishments by permitting them conditionally to specified commercial or industrial zoning district.[13] This process is typically completed through the business’ presentation of a sight plan to a development review board, and permit approval through the government’s board of adjustment. In conditional permitting, government bodies often cite specific limitations of the permit regarding sign restrictions, the obstruction of windows, hours of operation and restrictive access for minors. Raleigh has the highest percentage of districts zoned for conditional adult use (6 of 26 business, thoroughfare or industrial, or 23%) and Greenville has the lowest (1 0f 27 commercial districts or 4%)[14]. Unique in North Carolina is Chapel Hill which does not utilize any special zoning provisions to regulate adult businesses. Also noteworthy is that Chapel Hill only has two adult establishments and has never had a legal challenge regarding adult businesses.[15]

North Carolina zoning ordinances are careful to specify the minimum separation requirements between adult businesses and “sensitive” areas such as churches, schools, parks, day care facilities, and other adult businesses. Some ordinances even cite historic districts, libraries, cemeteries, certain residential communities, and nursing and retirement homes as being restrictively available for adult establishments.
[16] Most zoning regulations have a minimum of 500 feet and a maximum of 2,000 feet as separation requirements. The towns of Kannapolis and New Bern are the most restrictive with minimum separations of 2,000 feet for all vulnerable areas. Durham is the least restrictive having no separation requirements for adult business, only limiting them to certain commercial and industrial areas[17].

Case History

Constitutional Challenges

The foundation of court decisions in North Carolina regarding adult establishments and constitutional challenges was first addressed in the 1979 case, Hart Book Stores, Inc. v. Edmisten.[18] This case was a consolidated appeal of several adult book stores against the then Attorney General of North Carolina, Rufus Edmisten. The petitioner argued that G.S. 14-202.11 unconstitutionally limited freedoms of expression and speech because it unlawfully restricted adult businesses from locating under one facility.[19] In Edmisten the court reversed an earlier decision of the district courts siding in favor of the defendant. In a lengthy ruling the Carolina courts referenced the 1976 Supreme Court case, Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), stating that the earlier case “essentially controls [the] decision here”[20]:

“We find the North Carolina statute to be merely a regulation of the place and manner of expression, without proscription of that expression, of the type not forbidden by the First Ammendment.”[21]

Constitutional issues and adult regulations were again raised in the appeal decision of Fantasy World, Inc. v. Greensboro Board of Adjustment.
[22] In 1993, the City of Greensboro amended its zoning ordinance to prohibit the operation of adult establishments within close vicinity of other adult businesses. Prior to the adoption of the ordinance Fantasy World was granted a non conforming use permit allowing it to operate a topless bar and restaurant within one building After the new zoning ordinance was adopted, Fantasy World converted the restaurant to an adult bookstore and mini movie theater. In so doing the plaintiff was now out of compliance with the new zoning ordinance and inspectors notified them to cease and desist all business activities. Upon appeals to the board of adjustment and superior court, both bodies found that the government was within their rights. The matter was thus submitted for judicial review in 1997.

Fantasy World’s initial argument was that the board of adjustment’s ordinance language was “unconstitutionally vague”[23] and sought to regulate expression protected by the first amendment.[24] The court deferred to the prior court decision in Hart Book Stores, Inc. v. Edmisten, that also addressed the issue of vagueness. [25] Since the language deemed vague in Edmisten was identical to the Greensboro ordinance, and Hart was denied in that challenge; the court ruled that the Greensboro ordinance was also sufficient to withstand the challenge of vagueness. Further, the court ruled that Fantasy World was specifically informed that “no adult use” could be made of the former restaurant and that the petitioner was neither “misled nor uniquely affected by a failure of the ordinance.”[26]

Fantasy World’s case was appealed again in 2004, but the decision remained the same. In this ruling Fantasy World contended that Greensboro’s denial of a business license constituted “an unconstitutional prior restraint against freedom of expression”
[27]. The judge disagreed stating that “localities may permissibly make adult establishments subject to zoning requirements”[28] including licensing requirements. In its decision the court cited both Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and City of Renton v. Playtime Theatres, Inc, 475 U.S. 41 (1986) stating “… a city does not “limit alternative avenues of communication” by dispersing or concentrating adult oriented businesses through valid zoning requirements.”[29] This example illustrates the use of criteria three of the O’Brien test (reasonable alternatives of location) to refute the claim of over-restriction.

The right to free speech and expression was again taken up in the 1998 case, Treants v. Onslow County, (97-35-2) 05/05/1998. Treants and another plaintiff, McKillop owned adult businesses in Onslow County. The Plaintiffs asked that the county’s Ordinance to regulate Adult Businesses and Sexually Oriented Businesses be declared invalid and unconstitutional, because it attempted to control through separation requirements the location of adult establishments. In their decision, the court again referenced the 1976 Supreme Court case, Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). Recall that Young ruled in favor of the City of Detroit, and on the subject of separation requirements stated that:

We are also persuaded that the 1,000-foot restriction does not, in itself, create an impermissible restraint on protected communication. The city’s interest in planning and regulating the use of property for commercial purposes is clearly adequate to support that kind of restriction applicable to all theaters within the city limits. In short, apart from the fact that the ordinances treat adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in the respective theaters, the regulation of the place where such films may be exhibited does not offend the First Amendment.[30]

The ruling also cites Hart Book Stores, Inc. v. Edmisten
[31] in affirming that “the ordinance does not totally prohibit the existence of these businesses, but only prohibits them from locating in particular areas.”[32] As in Fantasy World, Inc. v. Greensboro Board of Adjustment,[33] both Treants and McKillop tried to plead to the alleged “vagueness” of the ordinance. Since both petitioners acknowledged in their appeals that the ordinance applied to their businesses, the court found that there could be no confusion in the wording. Again, the O’brien test comes into play in this ruling. The judge decided that the ordinance was not restrictive to the point of exclusion, only that it regulated while providing reasonable alternatives for the location of the businesses.

The questions of vagueness and first amendment constitutional rights are again taken up in two subsequent cases. Both claims were denied citing previous rulings. The 1998 appeal, South Blvd. Video & News, Inc. v. Charlotte Zoning Board of Adjustment, 129 N.C. App. 282, 498 S.E.2d 623 refers to Fantasy World v. Greensboro[34] to dismiss the issue of vague wording. As well, the 2001 appeal, Durham Video & News, Inc. v. Durham Board of Adjustment,[35]also defers to the Fantasy World case in finding the plaintiff’s argument “without merit”[36]

Issues of Preponderance


Numerous court cases have argued the legal definition of adult establishments. G.S. 14-202-10 provides the legal definition of an “adult bookstore” as a bookstore:

which receives a majority of its gross income… from the sale or rental of publications… which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section; or

Having as a preponderance (either in terms of weight and importance of the material or in terms of greater volume of materials) of its publications… which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section[37] [emphasis added]

Also – and somewhat circular and confusing – the section defines “adult establishment” as “an adult bookstore, adult motion picture theatre, adult mini motion picture theatre, adult live entertainment business, or massage business.”[38] Regarding this issue of preponderance, adult businesses have attempted to argue that adult services and materials are not the predominant focus of their establishments, and therefore they should not be subjected to restrictions noted in State laws and local ordinances.

This argument was made in the Fantasy World v. Greensboro case[39]. Here, the petitioner contented that there was insufficient evidence to substantiate that they were operating an adult establishment on the grounds that much of their business activity had nothing to do with adult sales and services. Fantasy World was the corporate name for a local Greensboro adult business, Xanadu Video and Boutique. Though Xanadu’s primary business was the sale of adult videos and rental of mini video viewing booths, owners attempted to make the store look just like any retail video store by displaying G-rated films and offering video booths for the viewing of these family films. In cases involving the issue of preponderance, this is an often attempted scheme to skirt around regulations. Adult businesses attempt to convince inspectors that the distribution of adult content is actually split fifty-fifty with unrestricted materials. In the Fantasy World case, zoning inspectors observed that adult videos were well represented and featured in prominent locations throughout the store. Conversely, the G-rated material was displayed in poorly lit cases in the back of the store. As well, where adult films could be viewed on large, color television screens, the G-rated films could only be seen on small, black-and-white televisions. The courts were not fooled by these methods. They ruled that preponderance “related more to weight, force, and impact of the material, and not to a mathematical counting of the number of items available[40]”. Fantasy World was in fact operating an adult mini motion picture theater. The court found this to be “an impermissible enlargement or extension of the nonconforming use of the premises.”[41]

In 1998, the City of Charlotte also had a preponderance challenge concerning an adult book store in the downtown area. In 1995, South Blvd. Video and News was granted a Charlotte permit to operate a retail business for video booths and retail sales with the specified condition, “Approval is [given] on the basis that the preponderance of inventory / sales will be non-adult in nature.”
[42] Later, when the business was cited for selling a majority of adult materials and services, the owners attempted to subtly alter the business’ appearance. Signs were changed from “South Blvd. Video and News Erotica” to “South Blvd. Video and News Exotica”. Prior to the citation the store had exclusively sold adult magazines. After the zoning inspection they changed to 50% adult content and 50% comic books. Where the store had previously only stocked adult movie titles, it later switched to 50% adult and 50% non-adult content. Again, these tactics were seen by the courts as an attempt to circumvent laws and restrictions. The court denied the appeal stating, “… the Board correctly examined not only the quantity of the adult materials displayed at the store, but also the predominance and importance of these materials to the store’s overall business. For this reason, we hold that the Board’s decision was not arbitrary and capricious on this ground.”[43]

In a similar ruling the owner of the Executive Video Club in Stallings, North Carolina attempted to split content between adult and non-adult fare but the courts referenced section a. of adult bookstore definitions ruling, “a majority of [petitioner’s] gross income was derived from the sale or rental of these adult publications, and thus, fulfills the first definition of “adult bookstore” under G.S. 14-202.10 (1) (a).”[44]

Content definitions were further addressed in Durham Video & News, Inc. v. Durham Board of Adjustment.
[45] Again, a local adult business, Movie Town, argued that Durham’s assertion that it was running an adult bookstore and mini motion picture theatre was “arbitrary and capricious.”[46] Durham zoning inspectors went to great lengths to prove otherwise. Inspectors video taped the contents of the store and even viewed several portions of the movies. Though Movie Town tried to argue that the graphic depictions on video boxes did not necessarily represent the contents of the films, the court disagreed. In his ruling Judge Hudson concluded, “…with advertisements such as “Real People Having Real Sex!” and “Explicit Anal Sex”… we believe it is reasonable to rely upon an analysis of the pictures and titles on the covers of magazines, videos and other publications to decide whether such works emphasize the anatomical parts and sexual activities specified in G.S. 14-202.10 (10) & (11).”[47]

Content Neutrality and issues of Secondary Impact

As stated, the O’Brien test – and specifically how it addresses issues of content neutrality and secondary impacts to society – is important to case law in regulating adult businesses. The City of Raleigh received a challenge in regard to content neutrality when it attempted to over-exercise its authority in zoning a local adult book store. In Harts Book Stores, Inc. v City of Raleigh[48], the North Carolina court of appeals found that the City of Raleigh overstepped their authority when they refused to grant a special use permit to an adult bookstore. In the September 15th, 1981 ruling the court overturned the original decision. The court found that the Raleigh board of adjustment erred in denying a permit on the grounds “[t}hat the character and use of the buildings in the surrounding area are incompatible with the use of the applicant’s business.”[49] The court found no evidence in the Raleigh zoning ordinance that it was permitted to restrict businesses on such grounds. As well, a zoning inspector testified that the bookstore “meets all the criteria as set out in the Code.[50]” In their conclusion, the board of adjustment stated that it “felt that the granting of [petitioner’s] request would be a detriment to the neighborhood”[emphasis added][51]. Yet the Raleigh zoning ordinance had no criteria to measure detriment. The courts deemed the denial an “unlawful exercise of legislative power by the Board.”[52]

As previously stated, zoning ordinances tend to be successful when they are content neutral, avoiding language that objects to the purpose of adult establishments. Two examples bare this out. Section 12.518 of the Charlotte ordinance regarding adult establishments states the following:

Studies have shown that lowered property values and increased crime rates tend to accompany and are brought about by the concentration of adult establishments as defined herein. Regulation of these uses is necessary to insure that these effects do not contribute to the blighting of surrounding neighborhoods and to protect the integrity of the City’s schools, churches, child care centers, parks and playgrounds which are typically areas in which juveniles congregate.[53]

Similarly the City of Raleigh’s zoning ordinance later added a section on secondary impacts, though it comes close to raising morally motivated opinions about content:

Adult establishments, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when they are located near a residential zoning district or certain other districts which permit residential uses. Special regulation of these establishments is necessary to insure that these adverse effects will not contribute to a downgrading or blighting of surrounding residential districts or certain other districts which permit residential uses [emphasis added][54]

In Hart Book Stores, Inc. v. Edmisten
[55] issues of secondary impact where addressed and the ruling cited examples first addressed in the Federal Supreme Court ruling, Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). The North Carolina court disagreed with the Petitioner that freedom of expression was being denied based on “unequal treatment of commercial establishments.”[56] Further the court deferred to Young in determining that such unequal treatment was not discriminatory but rather “based most essentially on the different effects [the bookstore] was considered to have on their surroundings.”[57] This same issue was addressed in 321 News & Video, Inc. v The City of Gastonia.[58] The petitioner argued that by imposing separation requirements on the business the zoning board was infringing on the business’ right to exist. The court of appeal ultimately affirmed the board’s denial of a variance citing – among other issues – Gastonia’s zoning code and the City’s right to create “certain buffers… to provide adequate means of protection from the secondary effects of an adult establishment.”[59]

Recall that under criteria four of the O’Brien test, regulations should be “narrowly tailored” to meet the legitimate objective of preventing adverse secondary impacts. In the case of two Onslow County ordinances, the courts invalidated zoning restrictions that were seen as too broad to regulate adult establishments.[60] In Treants v. Onslow County,[61] Onslow attempted to restrict activities of Movie Mates, a mini video viewing business that was believed to be a front for prostitution. Once the business was established the county adopted a new ordinance licensing “companionship businesses”. The court found the category too broad. They argued that “companionship business” could refer to anything from nursing home workers to employees of Movie Mates. In their second attempt at an appeal, the county adopted an ordinance regulating “escort bureaus” but that too was struck down. The court found the term “escort” too vague and argued it could be applied to anything from chauffeurs to dance instructors. Thus, in adopting ordinances, local governments must be careful to narrowly tailor language so that it relates specifically to the activity under regulation.

Preemption

Preemption is the argument that a regulation is invalid if it inadvertently supersedes a similar rule or regulation from a higher authority. In the case of North Carolina court decisions, the argument often contends that ordinances are not lawful because they are preempted by similar specified issues in the State Statutes. This argument was presented in the Treants v. Onslow County case.[62] The petitioner argued that Onslow county’s zoning ordinance attempted “to regulate the exposure of “specified anatomical areas””[63] and in so doing it was preempted by G.S. 14-190.9 which concerns indecent exposure. However, the petitioner’s argument was seen as reaching and the courts ruled that “the purpose of the ordinance is not to regulate the exposure of these areas, but to regulate the location of adult and sexually oriented businesses in the county.”[64]

On appeal Treants came at preemption from a different angle. This time the petitioners cited perceived contradictions in the ordinance and statutes regarding restricted locations. Treants maintained that the ordinance language governing distances that must be maintained between two adult establishments was preempted by G.S. 14-202.11 (a) which provides,

no person shall permit any building, premises, structure, or other facility that contains any adult establishment to contain any other kind of adult establishment. No person shall permit any building, premises, structure, or other facility in which sexually oriented devices are sold, distributed, exhibited, or contained to contain any adult establishment.

In this case the court agreed with Treants. In the ruling the court stated that, “because the General Assembly has already addressed the issue that distance required between these types of businesses… [the ordinance] is preempted by N.C. Gen. Stat. 14-202.11.”[65] It should be noted that preemption does not prevent local governments from local regulation. Preemption only applies to those areas where there may be a perceived overlap between state and local government authority. Local governments continue to have a variety of remedies at their disposal to set specific limits to hours of operation, age requirements, and other aspects to control adult businesses.

Conclusion

Businesses that are involved in the sale of sexually oriented products and services are controversial. Though the public may object to these businesses on moral grounds and argue that they blight the community, adult establishments are nevertheless legal. The U.S. Constitution gives these businesses the right to exist. Those who seek to diminish their influence must do so not by eradication, but through careful control and regulation. Local governments must be careful to layout a constitutional framework as a foundation to any regulatory ordinance. The O’Brien test and other tools are guides for establishing these frameworks. Adult businesses can be limited to certain zoned areas, and can have other restrictions imposed upon them such as age and appearance restrictions and limited hours of operation. Ordinances can also be adopted to lessen the negative economic impacts on property values and deter criminal activities that often accompany the locating of these businesses. To meet potential legal challenges, local governments must be careful to adopt sound ordinances that emphasize the secondary impacts these businesses have on communities. At the same time governments must not completely exclude these businesses, and must allow for their regulated activity. Through careful preparation local governments can provide guidance through policies that protect both constitutional rights and the interests of the community.

[1] G.S. 14-202.10, (11) a., b., c. give specifics of, “specified sexual activities”.
[2] G.S. 14-202-10, (1) a., b.
[3] G.S. 14-202.11, (c)
[4] G.S. 160A-181.1 (a)
[5] Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
[6] The test was first used in United States v. O’Brien, 391 U.S. 367 (1968)
[7] The 4 steps to the O’Brian test are laid out in Regulating Sexually Oriented Businesses, David Owens, 1997, Institute of Government, University of North Carolina.
[8] Regulating Sexually Oriented Businesses, David Owens, 1997, Institute of Government, University of North Carolina.
[9] Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), City of Renton v. Playtime Theatres, Inc. (No. 84-1360)
[10] Ibid 5, Krueger v. City of Pensacola, 759 F.2d 851, 856 (11th Cir. 1985).
[11] G.S. 160A-181.1, (c)
[12] G.S. 160A-181.1 (d)
[13]Appendix B: North Carolina Local Regulations on Sexually Oriented Business Location, North Carolina School of Government: http://www.iog.unc.edu/organizations/planning/iogresources/appb.htm
[14] Ibid 10.
[15] For years a massage parlor on West Franklin street was the Town’s sole adult business until the opening of Cherry Pie, an “adult superstore” a few years ago on hwy 15-501.
[16] Ibid 10
[17] Ibid 10
[18] Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979), cert. denied, 447 U.S. 929, 65 L.Ed.2d 1124 (1980)
[19] Ibid 18
[20] Ibid 15
[21] Ibid 16
[22] Fantasy World, Inc. v. Greensboro Board of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205 (Feb. 17, 2004).
[23] Fantasy World, Inc. v. Greensboro Board of Adjustment, ___N.C. App.__, 496 S.E. 2d 825 (1998)
[24] Ibid 18
[25] Ibid 16
[26] Ibid 18
[27] Fantasy World, Inc. v. Greensboro Bd. of Adjust., (03-52) 02/17/2004
[28] Ibid 27
[29] Ibid 27
[30] Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
[31] Ibid 18
[32] Treants v. Onslow County, (97-35-2) 05/05/1998
[33] Ibid 23
[34] Ibid 27
[35] Durham Video & News, Inc. v. Durham Board of Adjustment, 144 N.C. App. 236, 550 S.E.2d 212
[36] Ibid 35
[37] Article 26A, G.S. 14-202.10
[38] Ibid 30
[39] Ibid 27
[40] Ibid 8
[41] Ibid 18, Petitioner appealed the case again in 2004 on the same argument and was refused.
[42] South Blvd. Video & News, Inc. v. Charlotte, 498 S.E.2d 623. (1998)
[43] Ibid 31
[44] Davis v. Town of Stallings Bd. of Adjust., 141 NC App 489 (99-1513), December 29, 2000
[45] Durham Video & News, Inc. v. Durham Board of Adjustment, 144 N.C. App. 236, 550 S.E.2d 212.
[46] Ibid 45
[47] Ibid 34
[48] Harts Book Stores, Inc. v. City of Raleigh, 53 N.C. App. 753, 281 S.E.2d 761 (1981)
[49] Ibid 48
[50] Ibid 48
[51] Ibid 48
[52] Ibid 48
[53] Charlotte zoning ordinance: www.charmeck.org
[54] Raleigh zoning ordinance, section 10-2144. (4), www.raleighnc.gov
[55] Ibid 18
[56] Ibid 14
[57] Ibid 14
[58] 321 News & Video v City of Gastonia, 050345-1 6 December 2005
[59] Ibid 58
[60] These cases are taken from the Owens’ paper (Ibid 5)
[61] Ibid 32
[62] Ibid 32
[63] Ibid 24
[64] Ibid 24
[65] Ibid 24

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