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Eric Damian Kelly, FAICP, is a planner and lawyer who is a Professor of Urban Planning at Ball State University. He continues a consulting practice with Duncan Associates, of Austin, Texas, for which he is a Vice President. He is general editor of Matthew Bender’s 10-volume treatise, Zoning and Land Use Controls, lead co-author of a new book from Island Press, Community Planning: an Introduction to the Comprehensive Plan, and a frequent contributor of planning law articles to Land Use Law and Zoning Digest. He is the author of three previous PAS reports, lead co-author of a fourth, and a chapter con- tributor to another. He is a past president of the American Planning Association Connie B. Cooper, FAICP, is president of Cooper Consulting Company, Inc., and a principal with Cooper Ross, with offices in Birmingham, Alabama, and Atlanta, Georgia. She specializes in comprehensive land- use planning, development regulations, and community outreach and goals setting for jurisdictions across the United States. She is a former president of the American Planning Association and is currently serving as President of the American Society of Consulting Planners. She is also the principal author of PAS Report No. 493, Transportation Impact Fees and Excise Taxes: A Survey of 16 Jurisdictions. Many people have supported our work on this report in a variety of ways. First and foremost, we want to thank our spouses—Sandra and Joe—whose patience, trust and good humor have allowed them to support us as we have undertaken the sometimes extensive field work, lengthy conversations, and end- less e-mails through which we have developed much of our understanding of the sex business and the issues surrounding it. The fact that Connie is still a welcome house-guest at the Kellys’ and that Eric can still stay at Coopers’ is an indicator of the level of their support for us. Second, we thank Bob Collins, Vicki Noteis, Virginia Walsh, and Patricia Jensen of the City of Kansas City, Missouri—our real initiation into this field began when they had the confidence to select us to carry out a sex business study for Kansas City. We note, also, that Ginny and Patricia cheerfully, if not enthu- siastically, accepted our invitations to join us in some of our late-night field work there. Max Scott and his staff at Oedipus, Inc., in Boulder, Colorado, conducted the household interviews in Kansas City—the carefully compiled results from those interviews educated us about a number of issues and continue to help us shape our thinking about the impacts of sex businesses on neighborhoods. We also want to thank many new friends in the industry who have helped us to understand the sex business better. We note particularly Dick Bryant, an attorney for the industry in Kansas City, the man- agement of Ray’s and Bazooka’s in Kansas City, and Mark Boyer, publisher of an industry advertising publication in upstate New York. Many neighborhood and other activists have spent time with us and helped us to understand their perspectives on the issue. We have been impressed at the calm and well-reasoned positions that some of these groups take, and, in that context, we note particularly Brian Kane of the Interfaith Action Coalition in Rochester and Bill Sheehan of the Christian Community Organization in Kansas City. We also must thank many people in planning and legal departments in the cities named in this report— they have cheerfully accepted our endless calls and faxes as we have tried to verify the latest versions of these oft-changing ordinances and to understand how they are administered. Finally, we thank our editor, Jim Hecimovich. Producing this report has been an interactive process to which he has contributed tremendously. He has edited our work before, but his role in this report was much more significant—he guided us to the creation of a far better report than we had when we started. The work, of course, is ours, and the findings and conclusions in the report are ours, not those of our clients, friends or colleagues. Except where otherwise noted, the views expressed in this report represent our combined and synthesized judgment. As that statement suggests, work on this project has been the best form of collegial undertaking—and one of the most interesting imaginable. Chapter 5 of this report was adapted from Chapter 11 of Zoning and Land Use Controls, edited by Eric Damian Kelly (New York: Matthew Bender & Co.) and is used with permission. The original source contains extensive statutory and case citations. For those without access to the complete 10-volume set of Zoning and Land Use Controls, the individual chapter can be purchased at http://www.bender.com. Cover design by Toni Thanasouras Ellis; this report is printed on recycled paper. The Planning Advisory Service is a subscription service offered by the Research Department of the American Planning Association. Eight reports are produced each year. Subscribers also receive the PAS Memo each month and have use of the Inquiry Ansering Service. Frank S. So, Executive Director; Sylvia Lewis, Publications Director; William Klein, Director of Research. Planning Advisory Service Reports are produced in the Research Department of APA. James Hecimovich, Editor; Marya Morris, Assistant Editor; Lisa Barton, Design Associate. © November 2000 by the American Planning Association. APA’s publications office is at 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603. E-mail: [email protected]. APA headquarters office is at 1776 Massachusetts Ave., N.W., Washington, DC 20036. Part 1. Legal Foundation iii TABLE OF CONTENTS “everything you always wanted to know about regulating sex businesses” ERIC DAMIAN KELLY, FAICP Corbis CONNIE COOPER, FAICP Foreword .............................................. 1 Defining Pornography Today .................................2 Who Is the Audience for This Report?..........................6 How Do We Know?..........................................6 Organization and Content ....................................7 Chapter 1. Fanny Hill to Voyeur Dorm........................... 9 Pornography and Censorship in Europe .......................10 Pornography and Censorship in the New World................10 Stag Films ................................................. 11 Mainstream Cinemas and Early “Independent” Film Makers.....12 Magazines Feature Nudity...................................12 Pornography Goes Mainstream in the 1950s, 1960s, and 1970s....13 Another Technological Revolution for Pornography.............16 Sex Goes Electronic . 17 Chapter 2. Understanding the Sex Business .....................21 Mainstream Businesses With Some Hard-Core Material .........21 Mixed-Retail Outlets ........................................23 Adults-Only or Sexually Oriented Retail Outlets................25 Sexually Oriented Entertainment .............................26 Other Businesses ...........................................33 Lessons Learned............................................35 Chapter 3. Formal Studies of Sex Businesses .................... 39 Webb Chappell The Kansas Study ..........................................39 A Survey of Appraisers in Rochester, New York ................45 Findings From Studies in Other Communities..................51 Findings...................................................59 Lessons Learned............................................60 Chapter 4. How Local Governments Regulate Sex Businesses ......... 63 Zoning Techniques for Regulating Sexually Oriented Uses .......64 Licensing Techniques for Regularing Sexually Oriented Uses.....66 Separation Requirements . 69 Treating Specific Adult Uses Differently .......................73 Amortization of Sexually Oriented Uses .......................78 Lessons Learned............................................79 Chapter 5. Major Issues in the Regulation of Sex Business ........... 81 Constitutional Context for the Authority to Regulate ............81 Zoning Techniques Applied..................................86 The Importance of Studies ...................................87 Requirements for Availability of Sites . .88 Licensing Ordinance ........................................93 Conditional Zoning .........................................95 Regulation of Nude Dancing.................................96 Regulation of Sex Toys and Novelties .........................99 Regulation of Arcades and Peep Shows ......................104 Regulation of Massage and Other Touching Businesses.........105 Signage As a Regulating Factor..............................107 Lessons Learned...........................................107 Chapter 6. How To Prepare a Study of Sexually Oriented Businesses ....111 What Is the Value of a Study? ............................... 111 Who Should Be Involved and Why . 112 Study Contents............................................ 113 Findings and Recommendations............................. 116 Chapter 7. How To Prepare Zoning Regulations for Sexually Oriented Businesses ...................................119 Definitions................................................ 119 Land-Use Classifications ...................................123 Designation as Principal Use ................................123 In What Zoning Districts Are These Uses Appropriate?.........124 Should Sexually Oriented Businesses Be Clustered?............125 Should These Businesses Be Separated from Other Uses? .......126 What Is the Effect of the Proposed Restrictions? ...............129 Can Signage for Sex Businesses Be Limited? ..................130

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