Problem: Voyeur Dorm v. City of Tampa 265 F.3d 1232 (11th Cir. 2001); cert. den. 122 S.Ct. 1172 (2002)
Circuit Judge Dubina
This appeal arises from Voyeur Dorm L.C.'s alleged violation of Tampa's City Code based on the district court's characterization of Voyeur Dorm as an adult entertainment facility.
BACKGROUND Voyeur Dorm operates an Internet-based Web site that provides a 24-hour-a-day Internet transmission portraying the lives of the residents of 2312 West Farwell Drive, Tampa, Florida. Throughout its existence, Voyeur Dorm has employed 25 to 30 different women, most of whom entered into a contract that specifies, among other things, that they are "employees," on a "stage and filming location," with "no reasonable expectation of privacy," for "entertainment purposes." Subscribers to "voyeurdorm.com" pay a subscription fee of $34.95 a month to watch the women employed at the premises and pay an added fee of $16.00 per month to "chat" with the women. From August 1998 to June 2000, Voyeur Dorm generated subscriptions and sales totaling $3,166,551.35. In 1998 Voyeur Dorm learned that local law enforcement agencies had initiated an investigation into its business. In response, counsel for Voyeur Dorm sent a letter to Tampa's zoning coordinator requesting her interpretation of the city code as it applied to the activities occurring at 2312 West Farwell Drive. In February of 1999, Tampa's zoning coordinator, Gloria Moreda, replied to counsel's request and issued her interpretation of the city code:
It is my determination that the use occurring at 2312 W. Farwell Dr., is an adult use. Section 27-523 defines adult entertainment as "Any premises, except those businesses otherwise defined in this chapter, on which is offered to members of the public or any person, for a consideration, entertainment featuring or in any way including specified sexual activities, as defined in this section, or entertainment featuring the displaying or depicting of specified anatomical areas, as defined in this section; ‘entertainment' as used in this definition shall include, but not be limited to, books, magazines, films, newspapers, photographs, paintings, drawings, sketches or other publications or graphic media, filmed or live plays, dances or other performances distinguished by their display or depiction of specified anatomical areas or specified anatomical activities, as defined in this section." Please be aware that the property is zoned RS-60 Residential Single Family, and an adult use business is not permitted use. You should advise your client to cease operation at that location. Thereafter, in April of 1999, Dan and Sharon Gold Marshlack [owners of the property located at 2312 W. Farwell] appealed the zoning coordinator's decision to Tampa's Variance Review Board. On or about July 13, 1999, the Variance Review Board conducted a hearing. At the hearing, Voyeur Dorm's counsel conceded the following: that five women live in the house; that there are cameras in the corners of all the rooms of the house; that for a fee a person can join a membership to a Web site wherein a member can view the women 24 hours a day, seven days a week; that a member, at times, can see someone disrobed; that the women receive free room and board; that the women are part of a business enterprise; and that the women are paid. At the conclusion of the hearing, the Variance Review Board unanimously upheld the zoning coordinator's determination that the use occurring at 2312 West Farwell Drive was an adult use. Subsequently, Mr. and Mrs. Marshlack filed an appeal from the decision of the Variance Review Board to the City Council. The Tampa City Council . . . unanimously affirmed the decision of the Variance Review Board. Voyeur Dorm filed this action in the middle district of Florida. The City of Tampa and Voyeur Dorm then filed crossmotions for summary judgment. The district court granted Tampa's motion for summary judgment, from which Voyeur Dorm now appeals.
ISSUE 1. Whether the district court properly determined that the alleged activities occurring at 2312 West Farwell Drive constitute a public offering of adult entertainment as contemplated by Tampa's zoning restrictions. [Issues 2. and 3. are omitted.-Ed.]
DISCUSSION The threshold inquiry is whether section 27-523 of Tampa's city code applies to the alleged activities occurring at 2312 West Farwell Drive. Because of the way we answer that inquiry, it will not be necessary for us to analyze the thorny constitutional issues presented in this case.
Tampa argues that Voyeur Dorm is an adult use business pursuant to the express and unambiguous language of Section 27-523 and, as such, cannot operate in a residential neighborhood. In that regard, Tampa points out that members of the public pay to watch women employed on the premises; that the employment agreement refers to the premises as "a stage and filming location;" that certain anatomical areas and sexual activities are displayed for entertainment; and that the entertainers are paid accordingly. Most importantly, Tampa asserts that nothing in the city code limits its applicability to premises where the adult entertainment is actually consumed. In accord with Tampa's arguments, the district court specifically determined that the "plain and unambiguous language of the city code . . . does not expressly state a requirement that the members of the public paying consideration be on the premises viewing the adult entertainment." While the public does not congregate to a specific edifice or location in order to enjoy the entertainment provided by Voyeur Dorm, the district court found 2312 West Farwell Drive to be "a premises on which is offered to members of the public for consideration entertainment featuring specified sexual activities within the plain meaning of the city code." Moreover, the district court relied on Supreme Court and Eleventh Circuit precedent that trumpets a city's entitlement to protect and improve the quality of residential neighborhoods. Sammy's of Mobile, Ltd. v. City of Mobile (noting that it is well established that the regulation of public health, safety, and morals is a valid and substantial state interest); Corn v. City of Lauderdale Lakes (noting that the "Supreme Court has held [that] restrictions may be imposed to protect ‘family values, youth values, and the blessings of quiet seclusion'"). In opposition, Voyeur Dorm argues that it is not an adult use business. Specifically, Voyeur Dorm contends that section 27-523 applies to locations or premises wherein adult entertainment is actually offered to the public. Because the public does not, indeed cannot, physically attend 2312 West Farwell Drive to enjoy the adult entertainment, 2312 West Farwell Drive does not fall within the purview of Tampa's zoning ordinance. The residence of 2312 West Farwell Drive provides no "offering [of adult entertainment] to members of the public." The offering occurs when the videotaped images are dispersed over the Internet and into the public eye for consumption. The city code cannot be applied to a location that does not, itself, offer adult entertainment to the public.
applied to a particular location that does not, at that location, offer adult entertainment. Moreover, the case law relied upon by Tampa and the district court concerns adult entertainment in which customers physically attend the premises wherein the entertainment is performed. Here, the audience or consumers of the adult entertainment do not go to 2312 West Farwell Drive or congregate anywhere else in Tampa to enjoy the entertainment. Indeed, the public offering occurs over the Internet in "virtual space." While the district court read Section 27-523 in a literal sense, finding no requirement that the paying public be on the premises, we hold that section 27-523 does not apply to a residence at which there is no public offering of adult entertainment.
Questions: 1. a. Why did the court rule against Tampa?
b. Make the argument, as the lower court did, that the Tampa statute does apply to Voyeur Dorm.
c. Why was Tampa concerned about Voyeur Dorm operating in a residential neighborhood?
d. Does Tampa have any additional legal grounds for challenging Voyeur Dorm? Explain.
2. The city government in Cedar Falls, Iowa, home of the University of Northern Iowa, declined to renew the liquor license of a local bar after 58 of 100 "bar checks" over a period of nearly two years found minors drinking illegally. One hundred and seventy four alcohol-related tickets were issued over that period.28
a. Could the free market satisfactorily protect the public from the various risks associated with excessive drinking by college-age students, or are rules necessary?
b. Would you vote to renew this bar's liquor license? Explain.
3. Two Dallas, Texas, ordinances were challenged in court. One gave the police very broad authority to deny licenses to "adult" businesses such as bookstores. The other, which was directed at prostitution, barred motel owners from renting rooms for fewer than 10 hours.
a. What challenges would you raise against these ordinances?
b. How would you rule? Explain. See FW/PBS Inc v. City of Dallas, 493 U.S. 215 (1990).
4. The Los Angeles municipal code prohibits some types of new billboards and restricts the size, placement, and illumination of others. The Los Angeles code seeks to "promote public safety and welfare" by "providing reasonable protection to the visual environment" and by ensuring that billboards do not "interfere with traffic safety or otherwise endanger public safety." One provision of the code specifically forbids new "Freeway Facing Signs" located within 2,000 feet of and "viewed primarily from" a freeway or an on-ramp/off-ramp. Another forbids, with exceptions, new "super graphics," large format signs projected onto or hung from building walls. The Los Angeles rules allow new signs in some portions of the city while banning them in others.
a. The billboard rules were challenged on constitutional grounds. Explain those grounds and rule on the constitutionality of the rules. See World Wide Rush v. City of Los Angeles, 606 F.3d 676 (9th Cir. 2010).
b. Should Los Angeles simply allow the market to determine where billboards are placed? Explain.
5. Tattoo and body piercing statutes sometimes require liability insurance, licensing, training, and health inspections, and parents are to accompany minors. Does each of those requirements seem appropriate to you? Explain.
6. a. Can we rely on the market to protect teens from excessive tanning? Explain.
b. Has the market failed? Explain.