Prove Ordinance's Constitutionality With Relevant Secondary-Effects Studies

Wednesday, January 31, 2018 2:38 am
Land Use Law Report, Volume 46, Number 2

A county cannot pass an ordinance for the sole purpose of forcing a sexually oriented business to close its doors --- unless it can prove that the business’ secondary effects will be harmful to the area, according to the U.S. Court of Appeals for the Tenth Circuit.

Facts: In late 2003, Abilene Retail #30, Inc. opened The Lion’s Den at a rest stop in Dickinson County, KS. The first sexually oriented business in the county, The Lion’s Den is located off an exit ramp on Interstate 70 in an incorporated area and sells a variety of sexual devices and sexually explicit magazines, videos and DVDs.

Dickinson County’s residents weren’t happy with their new neighbor and began protesting outside its doors as soon as it opened for business. Individual residents appeared before the Board of County Commissioners of Dickinson County, Kansas (Board) to testify to the possible negative consequences of the store’s operation.

The residents and several board members then considered multiple options to limit the proliferation of adult businesses in the county. In response to residents’ concerns, the Board passed the Dickinson County Kansas Sexually Oriented Business Ordinance No. 07084 (First Ordinance). This ordinance cited several cases and studies that pointed to the variety of negative secondary effects that result from adult businesses, and it attempted to curb those effects.

But the Board did not actually review or consider the cited materials before it passed the First Amendment. Abilene challenged the First Ordinance, and the Board drafted a new ordinance (Second Ordinance) to address Abilene’s challenge. The Second Ordinance set forth that sexually oriented businesses could not be located less than 1,200 feet from any residence, school, house of worship or other specified establishment, among other provisions.<[..]