Most people are familiar with the “Voyeur Dorm” concept. As an adult-oriented “reality show,” not unlike “Big Brother,” a producer sets up a home with cameras all over, and the viewers can act as voyeurs — looking in on the lives of the entertainers. In the adult entertainment context, that means watching them have sex with each other.
One Miami neighborhood decided that it didn’t want “that kind of thing” in their town.
The city where pretty much everything goes doesn’t want “cocodorm.com” operating in its residential neighborhoods. After a marathon 10 hour hearing, the Miami Code Enforcement Board ruled that Coco Dorm could no longer operate in a single-family residence, because the neighborhood is zoned for residential use only.
”I think the city has met its burden of showing a link between the house on 27th Street and the website,” board member Oscar Rodriguez Fonts said before moving to deny a motion, made by Flava Works attorney James Benjamin, to dismiss citations posted by city code inspectors in May. (source)
Back in 2002, Voyeur Dorm itself faced similar problems when the City of Tampa took the same position. In Voyeur Dorm v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001), the 11th Circuit held that voyeur dorm could remain open.
The 11th Circuit looked at Tampa’s ordinance and determined that it was intended to prohibit business activity in residential areas. No actual “business activity” took place at the Voyeur Dorm – if you wanted to patronize Voyeur Dorm, you did so from a remote computer. The only people who were present at the Voyeur Dorm were the people who lived there (and performed sexually explicit conduct on camera).
“As a practical matter, zoning restrictions are indelibly anchored in particular geographic locations. Residential areas are often cordoned off from business districts in order to promote a State’s interest,” wrote the 11th. “It does not follow then that a zoning ordinance designed to restrict facilities that offer adult entertainment can be applied to a particular location that does not, at that location, offer adult entertainment.”
In that case, Voyeur Dorm’s attorney, Luke C. Lirot (a good friend), also made arguments about the constitutionality of the City’s attempts to shut down Voyeur Dorm, but the 11th did not get to those issues, instead ruling on the threshold matter of the applicability of the ordinance.
Coco Dorm’s lawyer, Jamie Benjamin (another good friend) invoked the Voyeur Dorm case, but Miami was un-moved, claiming that the text of their ordinance was different. ”Miami’s adult entertainment ordinance encompasses Internet activity in a way the Tampa ordinance did not,” Rodriguez Fonts said. (source).
It seems that nobody in the neighborhood really knew that the place was operating until an anonymous party delivered envelopes containing printouts of the site to their doors. (source). After that, the news cameras came rolling into the neighborhood, and then code enforcement went into action.
There are some interesting twists and cans of worms in this case.
However, local communities can not simply ban adult entertainment because they don’t like it. A town can only restrict adult entertainment in order to combat the “adverse secondary effects” of that kind of business. Some of those effects that have been recited by cities trying to banish adult entertainment to certain areas are: increased crime, increased traffic, increased calls for police, and even increased litter. If the Miami adult entertainment ordinance truly does encompass internet activity in a way that the Tampa ordinance did not, then the Miami ordinance itself may be in jeopardy. I seriously question whether such “effects” exist in the live entertainment context, and most “studies” that say they do have been thoroughly discredited when scrutinized by objective social scientists.
Nevertheless, let us presume, arguendo that adverse secondary effects are not a myth, and that when a strip club opens in a neighborhood, these adverse secondary effects do occur. How can they possibly occur if the business is internet-based? Nobody in the neighborhood even knew the business was there until someone decided to “out” it. Attorney Benjamin may have started out by simply making an argument that the ordinance did not apply, but he might wind up with a bigger prize than that — the invalidation of the entire Miami adult entertainment code.
Cary Wiggins reports on this here.
Volokh reports on it here.