Communities Turn to Zoning to Regulate Adult Bookstores

February 23, 1992|By MARK GUIDERA | MARK GUIDERA,Mark Guidera is editor of The Baltimore Sun's Harford County bureau.

The tiny cottage-style house had sat vacant on Wilson Boulevard in Glen Burnie for years. Residents of the working-class neighborhood considered the building an eyesore

and invitation for trouble from vagrants or idle teens. So when there was suddenly a bustle of workers at the cottage last summer, Debbie Brunetti, whose home is just around the corner, was pleasantly surprised.

It was on a drive home with her 17-year-old daughter on a summer's eve a few weeks later that Ms. Brunetti found out just what type of business had set up shop in her community.

It was dread at first sight.

Without fanfare the Paradise Adult Bookstore, offering sexually graphic videos and magazines and a variety of "sexual aids," had opened for business. The windows and doors were covered with paper.

The store was within three blocks of an elementary school, five blocks from a child's day-care center and a stone's throw from Ms. Brunetti's home for the past 10 years.

"I was livid," Ms. Brunetti recalls.

It was the feelings of anger and desperation that put Ms. Brunetti and others in her community on a collision course with Constitutional safeguards for free speech and due process.

And what the Glen Burnie residents and Anne Arundel County administrators found they could use was not Bible-thumping morality but something far more arcane: a local government's right to restrict where businesses can operate. In short, zoning.

The road the Glen Burnie residents took is not at all unusual in Maryland or the nation these days on the issue of regulating businesses that focus on offering sexually explicit forms of entertainment.

In the past year, residents from Havre de Grace to Silver Spring and Salisbury have raised Cain over the locations -- and the perceived deleterious effects on the community -- of stores that offer exclusively sexually graphic material for sale and viewing.

That movement is in step nationally. Rural towns to large cities and suburban communities throughout the nation are using zoning, licensing and health measures to regulate the businesses in the same fashion governments regulate and license restaurants and liquor stores, says Paul Mueller of the Children's Legal Foundation. The Phoenix-based organization assists communities with drafting such legislation.

"What's happening in Maryland is indicative of what is happening in many communities nationally," says Mr. Mueller, a lawyer for the foundation. "We have literally hundreds of inquiries each year for information on how to structure this kind of legislation. It's the people who live in these communities who are saying these kinds of businesses are inappropriate near schools, homes and parks."

The keystones to local laws regulating businesses that offer primarily sexually graphic entertainment are three Supreme Court cases.

The case which first backed a government's authority to use zoning as a way to restrict where the business could be located is a 1976 decision involving the city of Detroit. In that case, the court said that a city zoning ordinance which sought to prevent adult theaters from concentrating in one area of the city, did not ++ violate a theater's First Amendment free speech rights since the law did not restrict what could be viewed.

Perhaps the most important of the cases, say lawyers familiar with the issue, is a 1986 decision, City of Renton vs. Playtime theaters, Inc.

In that decision the court upheld a city ordinance which prohibited adult motion picture theaters from locating within 1,000 feet of any residential area, church, park or school.

The court noted that the law addressed a valid governmental response to problems which such businesses can bring to communities. And more importantly, the court said, legislators did not have to provide evidence that problems, such as prostitution, were in fact occurring at local shops. They could rely on information gleaned by other communities in the nation.

As long as the ordinances don't restrict what the stores may legally carry and the law ensures that the stores can operate somewhere in the regulated jurisdiction, they don't violate free speech or due process rights, the court said.

In the most recent Supreme Court case on the issue, a challenge to a Dallas law, the court upheld in 1989 a comprehensive city law regulating a variety of "sexually oriented businesses" -- from adult bookstores to nude model studios and sexual encounter centers.

While the court upheld the ordinance generally, it did say that the Dallas law was Constitutionally flawed because it failed to allow for a prompt judicial review of a license denial.

Taken together the three Supreme Court cases have set the framework for how local laws addressing sexually oriented businesses must be structured, say legal experts on the issue.

Joel Simon, a Baltimore lawyer with Tydings and Rosenberg who assists the American Civil Liberties Union, has been monitoring efforts in Maryland to regulate sexually oriented businesses.

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