Our friends over at NoPornNorthamption.com has put together an excellent article documenting the US Court of Appeals for the Eleventh Circuit’s recent Daytona Zoning decision. Please note that it is a long but worthy read. Several points to consider:

  1. The Court upheld the City of Daytona’s use of secondary impacts as the basis for implementing zoning restrictions on adult businesses. This was done in spite of the fact that lawyers representing adult businesses argued that there has been no documented increase in crime around adult businesses according to the City’s own police records. The Court found that many of the type of crimes associated with adult businesses (public lewdness and prostitution) may not show up in police records.
  2. The Court stated that there does not have to be any “available” sites for adult businesses as long as there are potential sites for adult businesses in a local jurisdiction. The Court was only concerned that zoning restrictions allowed adult businesses in a sufficient number of locations. The Court was not concerned if these sites were actually available to be occupied by an adult business. For example deed restrictions that prohibit adult businesses on a property that is zoned for adult businesses does not nullify the site from being considered as a potential site for First Amendment purposes. In addition all suitably zoned sites could be presently occupied and not available to buy or lease; again this fact does not does not nullify the site from being considered as a potential site for First Amendment purposes.

The second point is relevant to the Johns Creek Love Shack case. One of Mr. Cornetta’s arguments has been that there are no other ‘available” site for adult businesses in Johns Creek, even though adult businesses are allowed on industrially zoned land. This is because most (if not all) of the industrially zoned land in the City of Johns Creek is in the Johns Creek Tech Park. The Johns Creek Tech Park has restrictive deeds that prohibit adult uses. This fact makes it extremely difficult for an adult business to legitimately locate within the City of Johns Creek even if there are a sufficient number of sites zoned for adult businesses. Hence the battle over the current location (which is not zoned industrial).

The first point will become important if and when the City of Johns Creek zoning regulations related to adult businesses get challenged in court. Since the City of Johns Creek implemented time, place and manner restrictions on adult businesses based on data reasonably believed to be relevant to the City of Johns Creek, it will much harder for opposing lawyers to argue that the City of Johns Creeks restrictions are not based on solid evidence.