Voyeur Dorm Redux – Coco Dorm Wins

The internet has rendered the Blutarski method largely obsolete

The internet has rendered the Blutarski method largely obsolete

In order to zone out adult entertainment from a certain area, a town must show that it passed the zoning ordinance in order to combat the “adverse secondary effects” of adult entertainment establishments — not simply because the town doesn’t want “that kind of thing going on.” In other words, banning adult entertainment from a residential area because it isn’t a proper business district is completely permissible. Banning it from a business district because you think your town “isn’t that kind of place” is not.

In 2001, Tampa’s “Voyeur Dorm” operated peacefully and quietly in a residential house, but no customers ever came to the dorm. The house had a few girls living in it, webcams in every room, and the girls would walk around naked, masturbate on camera, shower, and generally provide a voyeur experience for the website’s subscribers. On the other end of the equation, members of the Voyeur Dorm website could enjoy the online reality show from the privacy of their own homes.

Naturally, this being Flori-duh, the local zealots weren’t having any of that, and they tried to shut the business down by invoking their local adult entertainment ordinance. Had the Voyeur Dorm been a strip club, they would have been dead right. However, in reversing the trial court’s determination that Tampa could shut down the dorm, the 11th Circuit ruled that since Voyeur Dorm offered no adult entertainment “to members of the public” on site, but rather the entertainment was offered over the internet, the city code did not apply.

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. See e.g., City of Renton, 475 U.S. at 50 (“A city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect.”). 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. Moreover, the case law relied upon by Tampa and the district court concern adult entertainment in which customers physically attend the premises wherein the entertainment is performed.2 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. Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001)

Apparently, the City of Miami didn’t get the memo. Miami’s “Coco Dorm” is the gay equivalent of Tampa’s Voyeur Dorm. The boys play inside, the cameras capture the action, and the audience is dispersed world-wide. As I reported in August of 2007, 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.

Despite efforts to educate the city by Coco Dorm Attorneys Jamie Benjamin, Gary Edinger, and Daniel Aaronson (all of whom I am proud to call my friends), Miami refused to budge — stubbornly insisting that its ordinance was different.

Federal Judge Marcia Cooke didn’t see it that way. Factually, the case was identical to Voyeur Dorm.

None of the webcams are located outside of the 503 residence and no images external to the residence are publicized or broadcast by Flava Works. The address of the residence is not disclosed on the website or any of Flava Works, Inc.’s products. It is rare for customers or vendors to physically go to the business office at 2610 North Miami Avenue. Neither customers nor vendors ever physically go to the 503 residence. (Op. at 5)

Judge Cooke also found the two legal scenarios to be indistinguishable:

Just as in Voyeur Dorm, since the Miami zoning ordinance is designed to restrict establishments that offer adult entertainment or services to the public at their physical location, that ordinance cannot be “applied to a particular location that does not, at that location, offer adult entertainment” or services to the public. Voyeur Dorm, L.C., 265 F.3d at 1236. Because the public offering by Flava Works, Inc. occurs via cocodorm.com in cyberspace, and not in a particular geographic location, the City of Miami zoning ordinance cannot be applied to the 503 residence. (Op. at 9-10)

The City argued that a slight semantic difference between the two ordinances should be enough to distinguish the two cases. The Tampa ordinance specifically applied to premises on which adult entertainment is offered, but the Miami ordinance did not contain such limiting language. – thus the City took the position that the mere fact that adult entertainment was being filmed on the premises was enough, and where the audience congregated was irrelevant. The Court dismissed this argument and found that the ordinances were “functionally equivalent.” (Op. at 8).

Miami’s pleas that its ordinance should have been interpreted differently stretched credibility into a mental goatse. However, aside from that, this argument was strategically speaking, monumentally foolish. As noted above, 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 the “effects” that have been recited by cities trying to banish adult entertainment to restricted zones are: increased crime, increased traffic, increased calls for police, and even increased litter. 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. Nobody in the neighborhood even knew the business was there until someone decided to “out” it. How can adverse secondary effects possibly occur if the business is internet-based and the audience never comes to the facility?

If the Miami adult entertainment ordinance truly did encompass internet activity the way the City argued, then the ordinance itself would have been completely void. Without a justification for a ban that has a solid foundation in an effort to combat adverse secondary effects, the ordinance would fail even the relaxed level of scrutiny that ordinances must endure in order to be considered to be constitutional. Had the court bought Miami’s argument, the only constitutionally-permissible decision would have been to invalidate the ordinance as a whole — and then there would have been no restrictions on adult entertainment at all.

4 Responses to Voyeur Dorm Redux – Coco Dorm Wins

  1. Clint says:

    LOL @ Mental Goatse! :)

  2. I’m glad I have at least one sick pup reader who got that one. Nobody got the joke in this one. Well, either that or they found it too juvenile to acknowledge.

  3. Jobie Steppe says:

    I produce and display art on public property in Coconut Grove. Code enforcement said I was operating a business, which I am not and issued 6 code violations that did not mention my art. Code enforcement denied me due process and literally refused to accept documentation proving I was not engaging in business. I filed an appeal and they hired a private law firm to defend the City of Miami. The point is this. Before this is over this law firm will be billing taxpayers of Miami about $65,000.00, and subject the taxpayers of Miami to my $10-complaint for attempting to violate my constitutional right of expression. Code enforcement said, just get a license to sell art from your home and they don’t get it when I state “I don’t want to sell art from my home, so why should I get a license to do something that I am not doing and do not want to do”? My wife and I are very private people and don’t want people coming onto our property and into our home.
    Code enforcement just want any lien they can obtain from fines because when the top ranking supervisors retire they can take a percentage of the fines they levy with them in the retirement fund. And the taxpayers have to foot this bill.

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