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Follow up on 'Virginia Club laws?' Part Two

Alter_Kocker96

peepshow, here's a novel and creative idea -- consult an Virginia attorney familiar with local ordinances, town officials including planning commission officials.

For you and TUSCLer PLs here's some excerpts from a presentation to the American Planning Association Texas Chapter [TXAPA] by an attorney:
The ABC’s of SOB’s
Presented to the TXAPA
October 4, 2013
Galveston, Texas
Bradford E. Bullock, Partner
MCKAMIE KRUEGER & KNIGHT, LLP

****For an attorney, this guy has quite a sense of humor :P
****So before you TL;DR, check out some of the jpeg links below to his presentation slides.........

"Today and today only for three low, low payments of $49.99, I'll teach you everything you never wanted to know about sexually oriented businesses. That's right. For less than $150.00 American, I'll teach you:
--How to tell the difference between a massage parlor and a lingerie studio;
--The pros and cons of strippers versus entertainers;
--The correct way to fold your dollar bills in half;
--Appropriate lap dance etiquette;
--And so much more

Nah. Not really (although you'll probably pick up some of that along the way).
I WANTED to gear my presentation to that when I found out I had to keep you from falling asleep or booing for an hour and a half, but was politely informed that I might accidentally 'fall down the stairs' if I did. This TXAPA is one tough crowd.

The ABC’s of SOB’s – Basic Legal Principles of SOB Regulation

Basis for all SOB regulation analysis is the First Amendment, which provides, “Congress shall make no law … abridging the freedom of speech or of the press … It means that a governmental entity’s ability to regulate SOB’s is limited. Two basic categories of regs:

- Content-based, which impose the very heavy “compelling state interest” burden on a local government to justify; and
- Negative-secondary-effects based, which are content-neutral and subject to the less burdensome “intermediate scrutiny” standard

But why are SOB’s even subject to First Amendment analysis in the first place? Aren’t they just selling sex?  Well yes, but …
 “[T]he First Amendment will not tolerate the total suppression of erotic materials that have some
arguably artistic value …”

- If an SOB regulation is challenged, the first question is whether it is content or non-content based.  If it is content-based, the regulation must be precisely drawn and narrowly tailored, with no less intrusive means of advancing a substantial governmental interest. In other words, avoid content-based regulations because the odds of getting them upheld are slim.

- A regulation is content-neutral if it only attempts to regulate the “time, place and manner” in which protected speech/expressive
conduct is conveyed.  That is:
(1) the regulation is within the power of the government;
(2) it furthers an important government interest;
(3) the government interest is unrelated to the suppression of speech; and 
(4) the incidental restrictions on free speech are no greater than are essential to further the interest.

- Wait a second. Don’t you HAVE to at least peak at the message (and thus know it’s content) if you’re going to employ a “time, place, manner” restriction on it?  Yes.
- While the First Amendment protects communication in this area from total suppression, the Supreme Court has held that local governments may legitimately use their content as the basis for employing “time, place, manner” restrictions.

So, it's OK TO PEEK'

http://i.imgur.com/iyydZ12.jpg

More discussion of detail and specific example including [for Papi & TX PLs]:  ' Baby Dolls Topless Saloons, Inc. v. City of Dallas' and why the court ruled in favor of Dallas and the Dallas reg 'loophole' the SCs used to get around the reg before the court decision.

Here's a link to Bullock's full Powerpoint presentation:

https://www.txplanning.org/files/621/dow…

Bullock concludes with:
'The ABC’s of SOB’s – Drafting a Bullet-Proof Ordinance Guaranteed To Survive Any Legal Challenge Thrown Against It*
That's right folks, I said guaranteed. Other namby-pamby lawyers may be too worried about silly things like "malpractice" or their "professional reputation" to make such bold guarantees. But not me. I absolutely GUARANTEE a bullet-proof ordinance.

(*Results not guaranteed.)'

He adds some detailed instructions here, basically saying local authorities shouldn't just cut & paste from other locale's ordinances, but do their own *legwork* and studies to withstand legal challenges. Speaking of legwork jpeg:

http://i.imgur.com/tI41GZJ.jpg

[ and just so there's no question where Bullock stands on drafting regulations he adds...]

'If your locale is “lucky” enough to have recently had a strip club raid by the state and feds, fantastic. Reference it.
If your locale is “lucky” enough to be close to one that has, make fun of those poor suckers, and reference it.'

[Lots more detailed discussion and listing ordinances, then, he goes on...]

'That was rough. My apologies. Here’s something to cheer you up. This is one of the clever ways SOBs have skirted regulations aimed at making topless dancers less topless. Pasties:

http://i.imgur.com/Zd4TWkI.jpg

Believe it: [this one's for you, GoVikings]

http://i.imgur.com/UYniXTd.jpg

Creativity counts:

http://i.imgur.com/kdueHXf.jpg

How To Draft a SOB Ordinance That Stands a Good Chance of Withstanding a Constitutional Challenge:
Remember, your ordinance is not regulating morality. It isn't addressing sinful activity. It isn't disapproving and it doesn't condemn.
It is eliminating or at least mitigating the specific negative secondary effects attributable to the kind of business it is regulating, be that a SOB or a landfill.

[Finally!]

In short, you may have the most up to date, advanced SOB regulation on the books today. Give it five or ten years and the SOB industry will have figured out a way to skirt it. It's a multi-billion dollar industry and it isn't going away. So don't even try.

Almost.

The best you can do is to remind your city that while they can't bar the door on SOBs, they can enact meaningful time, place, [&] manner restrictions that preserve neighborhood character, maintain property values, and disburse the negative secondary effects, so as to avoid neighborhood blight and increased crime.'

The End?