Page 34 - AVN August 2016

LEGAL NEWS
LEGALESE | | By Clyde DeWitt
(Continued from page 32)
To put all of this in perspective, however, it is necessary to go back to
the rudiments of zoning law.
When God created the Earth, it was not divided into zoning districts.
In fact, the institution of local government existed for centuries before
anyone got the idea that there should be zoning. Original thinking held
that the owner of a parcel of land owned the “Blackstonian wedge,”
which extended from the center of the earth to the heavens and the
owner could do with it whatever he pleased. (No mistake in the
pronouns here; women could not own land back then.) When America
started to become industrialized, however, and cities became congested,
it became necessary to do something about regulating the use of land.
But at that juncture, property owners—who still were obsessed with
the concept of the “Blackstonian wedge”—gave the idea of land-use
regulations, such as zoning and building codes, a lukewarm reception
at best. Accordingly, the only way that such regulations could pass the
“consent to be governed” test was to apply them to new endeavors. Thus
began the concept of the “grandfather clause.”
“Grandfather” rights exist in most land-use regulations. In roughly
twenty states, grandfather rights are part of state law. This is true at
every level, including local zoning regulations, the uniform building
code and the Americans with Disabilities Act. Operators of retail
establishments all are familiar with the latter, which dictates that it now
costs $75,000 to build a bathroom, rather than the $5,000 or so it cost
before they enacted ADA; restrooms now must be the size of an average
tennis court.
The bottom line is that in order to make zoning regulations palatable,
it was necessary for cities as a general proposition to refrain from
upending the status quo. Accordingly, zoning regulations almost
invariably only apply to new endeavors. To the extent that they affect
existing ones, the ordinances generally allow existing uses to continue
for extraordinarily long periods of time, typically twenty to thirty years.
These exceptional circumstances are referred to as “amortization,” a
term derived from the concept of allowing property owners to realize a
return on an investment.
Unfortunately, the proponents of anti-adult-use ordinances discovered
that reducing the typical amortization period (but only for adult
businesses) from the normal twenty or thirty years to perhaps a year
or two or three provided an excellent vehicle for doing away with them
altogether. As a result, where a tanning factory or a zinc smelter might
be allowed to remain in business for twenty or thirty years, or even
perhaps for its natural life, before being required to close down and
comply with the prevailing zoning regulations, adult businesses find
themselves regularly faced with amortization periods of three years, one
year or, in some cases, six months. They don’t have enough political
clout to fall into line with other businesses; or, put another way, they
have so much political opposition that they are unable to do that.
The bottom line of all this zoning nonsense brings us to the question
of what number of adult business sites is actually sufficient. The worst
results along those lines probably come from Chicago, where the Illinois
Supreme Court found that a handful of locations in the unincorporated
portions of Cook County were sufficient and the 7th Circuit found that
an even smaller handful in the entire City of Chicago (3 million people!)
was sufficient. Perhaps the best result came from Los Angeles where
the court held that the number of locations was insufficient, although
numerically something like 2 to 3 percent of the city was available. The
court found that so many of the locations were implausible—such as the
airport, the harbor, Dodger Stadium, and so on—that realistically the
available places for the businesses to relocate did not allow the displaced
existing businesses a reasonable opportunity to move.
Caveat: Grandfather clauses almost universally have a “use it or lose
it” clause. That is, if a grandfathered use voluntarily ceases for some
period of time—typically six months to two years—grandfather rights
are lost.
34 | AVN.com | 8.16
FSC Decrees 2257
Ruling a Huge Victory
The Free Speech Coalition has released a statement regarding the decision earlier this week from the
Third Circuit Court of Appeals regarding the federal record-keeping and labeling law, 18 U.S.C. §2257,
in which the Coalition is the lead plaintiff.
A three judge panel from the federal Third Circuit Court of Appeals sided with the adult
industry in June, declaring that the 2257 record-keeping regulations, Reagan-era protocols
that were expanded by the Bush Administration to harass legitimate adult producers, are
a likely government restraint on free speech, and as such require the application of “strict
scrutiny”—an incredibly high bar for the government to overcome.
“The Third Circuit took into consideration recent First and Fourth Amendment cases
from the U.S. Supreme Court and has now directed a lower court on how to apply them
with respect to our long-running challenge to 2257,” said Reed Lee, an attorney and Free
Speech Coalition board member. “It is now very likely that FSC’s First Amendment claims
will succeed at last.”
Eric Paul Leue, Executive Director of the Free Speech Coalition, said the ruling was a
huge victory for the Coalition’s members, connecting it to February’s defeat of Cal/OSHA’s
newly proposed, and highly restrictive, condom-and-goggle regulations.
“This is a huge victory for free speech, and our second major victory this year. This
year marks the twenty-fifth anniversary of the founding of the Free Speech Coalition,
and as then, we face major battles on multiple fronts. But our strength and vigor are still
unparalleled, and the FSC will continue to fight for the rights, well-being and growth of the
entire adult industry. When we stand united, we stand strong.”
Jeffrey Douglas, FSC Board Chair, and Chairman Emeritus of the First Amendment
Lawyers Association, said the regulations have harmed adult producers and performers.
“The 2257 regulations have cost our industry millions of dollars in unjustified, pointless
paperwork, endangering performers through unnecessary distribution of personal
identification documents, all for no good reason. FSC has been fighting against this dreadful
regulatory scheme for over twenty years. We are extremely grateful to our attorneys,
Michael Murray and Lorraine Baumgardner for their extraordinary efforts and financial
sacrifice for principle.”
Earlier this year, the Free Speech Coalition explained why it was so intent on fighting the
regulations:
“This isn’t about keeping minors out of adult film. The industry is already incredibly
stringent about age-verification, as the production of child pornography is not only morally
and ethically despicable, it also carries a mandatory minimum of fifteen years in prison.
A record-keeping requirement means nothing to a child pornographer. But for legitimate
producers, the burdensome and byzantine requirements create numerous ways for
producers to be prosecuted and harassed by law enforcement, that have nothing to do with
the age of performers.
“With 2257, if a form isn’t complete, or you’ve misfiled, or you aren’t available when an
inspector arrives, you can be prosecuted, and the stakes are incredibly high: any violation
can result in a felony conviction with a prison term of up to five years.”
The statement also included what was, at that time, the law’s onerous Fourth
Amendment search-and-seizure violations:
“What’s more, 2257 allows the FBI the ability to arrive at your place of business without
a warrant and demand access to your records at almost any time. The producer has no
choice but to let the agents into their studio, office, or home, and to allow them to sift
through the personal information contained in the records, for hours. In one case, the FBI
visited a producer over two dozen times.”
Even before this decision, the Third Circuit panel had sharply limited the statutory
inspection regime. In light of a new Supreme Court decision, yesterday’s panel decision
went even further in restricting those inspections. And as for the statute as a whole,
yesterday’s decision backs Section 2257 into the tightest corner known to American
constitutional law.
Until any final ruling on the constitutionality of 2257, producers should continue to
comply with the regulations. Anyone with questions about the regulations or compliance
should contact Free Speech Coalition directly at info@freespeechcoalition.com.
“We’re tremendously encouraged by the success of the appeal,” said Leue. “We’ll be
following up with members on how this benefits them directly.”