Zoning and Regulation of Detroit’s Adult Entertainment Businesses: Has it gone too far?

by Helena Varnavas November 19 2008, 12:06

I.  Background

Detroit has been working hard to revive the city and bring residential growth to the downtown area. [1] Millions of dollars have gone into renovating historic buildings, creating new public transportation, reviving the riverfront and building residential lofts in the Central Business District area. [2] Detroit wants to prove that, “the growing population can support and sustain retail and grocery development,” for its current and future residents. [3] New casinos and stadiums have also enhanced the city’s cultural atmosphere while attracting a wave of young professionals. [4] Issues will arise, however, when the city tries to achieve this vision of a “better Detroit” by imposing ordinances and regulations on businesses that it deems problematic to their ideal. In particular, the city of Detroit has targeted the adult entertainment business as an industry they would like to see zoned out.

 

II. Legal Issues for Detroit’s Adult Entertainment Industry

The adult entertainment industry has been hit particularly hard by these new city ordinances and regulations. The Detroit City Council has commenced its efforts to phase these businesses out all-together by changing the zoning ordinance in 1999 to preclude new adult entertainment establishments from being opened in the Central Business District. [5] Local laws allow such modifications to zoning regulations because the city of Detroit does not need to wait for an area to deteriorate before applying a zoning remedy. [6] The city may also rely on sociological experiences of other cities in enacting legislation as long as doing so is not completely unreasonable. [7]

The City Planning Commission deemed this phase-out of adult entertainment businesses reasonable because “the B6 zoning district classification in this area may have made sense in the late 1960s when there were still wholesale and freight operations on the east side of the [Central Business District]. The subsequent development of Greektown and Bricktown, however, has rendered B6 inappropriate.”  [8] In addition, all zoning ordinances must bear a substantial relation to the public health, safety, morals or general welfare in order to be valid. [9] The city of Detroit seems to think that it is for the good of the general welfare that this new zoning ordinance be enacted.

Many adult entertainment business owners, including the proprietors of Déjà Vu and the Zoo Club, believe that various provisions of this ordinance unfairly prevent them from operating a legitimate business enterprise. [10] They have brought suit against the city of Detroit and asked the court to determine that the adult use provisions of the city’s ordinance are unconstitutional. [11] It is also their view that, “such provisions vest a constitutionally defiant discretionary authority in the hands of the city officials, who have no time constraint imposed upon them to evaluate an application in order to render a decision.” [12] The city of Detroit has dragged this case out over several years in order to avoid having to a make a decision that would violate the adult entertainment business owners’ right to engage in free speech under the First Amendment. [13] The court recently decided that the city’s treatment of the plaintiffs in that matter was unconstitutional because of its failure to make a decision on the plaintiff’s application within a reasonable amount of time. Nevertheless, it went on to hold that the city of Detroit’s ordinances are not unconstitutional on their face and are still applicable to all other adult entertainment business owners in the Central Business District. [14] On appeal, the plaintiffs have asked that the city of Detroit be permanently enjoined from enforcing the adult use provisions of the Detroit Zoning Ordinance and that their operation of adult entertainment businesses be identified as a lawful conforming use for zoning purposes.  This case is pending and is sure to impact all of Detroit’s adult entertainment businesses currently conflicting with the city’s adult provisions of the zoning ordinance.

 

III. Other American Cities’ Regulations and Zoning Ordinances

Detroit is not the first and likely not the last municipality to employ zoning ordinances to phase-out the adult entertainment businesses.  City and county governments around the nation are currently enacting the same types of legislation to bring down established adult entertainment businesses. [15] These legislative bodies normally develop an initial ordinance, update an outdated regulation, or attempt to argue for zoning and licensing restrictions in court to accomplish these shut-downs. [16] They may even try to enact laws that prescribe zoning requirements and land use regulations of areas previously zoned for adult entertainment and give the power to a review board to deny a business for lack of “wholesomeness”. [17] Such tactics clearly evince an effort to legislate morality based upson personal opinions of what is “right”. Cities may enact these types of legislation as long as they have a factual basis for their regulations, and plaintiffs can challenge by demonstrating that the government’s evidence does not support the regulations they are seeking to enact. [18]

Not everyone thinks that the adult entertainment business should be phased-out.  Organizations such as the First Amendment Lawyers’ Association, the American Civil Liberties Union, People for the American Way, National Coalition Against Censorship, Coalition for Free Expression, Free Speech Coalition, Thomas Jefferson Center for the Protection of Free Expression and the Association of Performing Arts Presenters are all defenders of exotic dancing in the adult entertainment industry. [19]

 

IV. Conclusion

The city of Detroit wants to grow, shed its negative image and become a desirable place for relocation. Although the city considers tourists to be very important, its attempts are aimed at stimulating population growth within the downtown business area. The general population seems to feel that the adult entertainment industry is a nuisance to their community and a barrier in the way of a “better Detroit”. [20] For adult entertainment business owners, this means that their rights may be compromised and will be continually diminished by adult entertainment provisions to the zoning regulations. It is uncertain as to whether the city of Detroit has gone too far with their zoning ordinances and regulations, but at this point, the city’s efforts have clearly had an effect on the downtown adult entertainment industry’s ability to run businesses going forward.

 

Endnotes

[1] Ruby L. Bailey, The D is a Draw: Most Suburbanites Are Repeat Visitors, The “D” Spot, Aug. 22, 2007, Detroit Free Press, http://teamowens313.wordpress.com/2007/08/22/if-you-build-a-new-detroit-they-will-come/ (last visited September 30, 2008).

[2] Robert Sharoff, National Perspectives; Wave of Renovations Helping Downtown Detroit, N.Y. Times, Jan. 30, 2005, available at http://query.nytimes.com/gst/fullpage.html?res=9F01E1DA173BF933A05752C0A9639C8B63&sec=&spon=&pagewanted=1.

[3] Sheena Harrison, DEGC Enlists Help to Spur Detroit Retail, Crain’s Detroit Bus., Jun. 25, 2007, available at http://www.crainsdetroit.com/apps/pbcs.dll/article?AID=/20070625/SUB/70623003/-1/newsletter02.

[4] Patty Salkin, Adult Use Provisions of Detroit’s Zoning Ordinance Deemed Unconstitutional, Law of the Land, Sept. 3, 2007, http://lawoftheland.wordpress.com/2007/09/03/adult-use-provisions-of-detroit%E2%80%99s-zoning-ordinance-deemed-unconstitutional/ (last visited October 1, 2008).

[5] H.D.V. - Greektown, LLC v. City of Detroit, No. 06-11282, 2007 U.S. Dist. LEXIS 56951 (E.D. Mich. Aug. 6, 2007).

[6] 15192 Thirteen Mile Rd., Inc. v. Warren, 626 F. Supp. 803, 825 ( E.D. Mich. 1985).

[7] Id.

[8] H.D.V. - Greektown, LLC v. City of Detroit, No. 06-11282, 2008 U.S. Dist. LEXIS 10940 (E.D. Mich. Feb. 14, 2008).

[9] Davis v. Sails, 318 So. 2d 214, 218 (Fla. Dist. Ct. App. 1975).

[10] H.D.V. - Greektown, LLC v. City of Detroit, No. 06-11282, 2008 U.S. Dist. LEXIS 10940, at *1 (E.D. Mich. Feb. 14, 2008).

[11] H.D.V. - Greektown, LLC v. City of Detroit, No. 06-11282, 2007 U.S. Dist. LEXIS 56951, at *2 (E.D. Mich. Aug. 6, 2007).

[12] H.D.V. - Greektown, LLC v. City of Detroit, No. 06-11282, 2008 U.S. Dist. LEXIS 10940, at *17 (E.D. Mich. Feb. 14, 2008).

[13] Id. at *30.

[14] Id.

[15] Drew Ruble, The People v. Jenna Jameson, Biz. Tenn., Dec. 2005, http://www.businesstn.com/content/people-v-jenna-jameson (last visited November 18, 2008).

[16] Id. at *2.

[17] Judith Kynn Hannah, Woodhull Freedom Foundation, Exotic Dance Adult Entertainment: A Guide for Planners and Policy Makers (2005), http://www.woodhullfoundation.org/content/otherpublications/JPL11-05-116-134.pdf.

[18] Id. at *11.

[19] Id.

[20] Bob Davenport, Cityscape Detroit (2007), http://www.cityscapedetroit.org/advocacy/BSE_no_ strip_club.pdf.

By Helena Varnavas

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