K.  ‘Voyeur Dorm’ Remains Open

as Supreme Court Avoids Case

 

      In February 2002, the U.S. Supreme Court declined to review a decision by a federal appeals court, thereby allowing the so-called “Voyeur Dorm” Web site to remain in operation.  The appeals court had refused to apply a city adult entertainment zoning law to a residence that housed the women featured on the site.

      Voyeur Dorm, L.C. offers a Web site, www.voyeurdorm.com, that features 24-hour coverage of five young women in various facets of their home life.  Subscribers pay more than $30 a month to enjoy access to the home’s interior through a number of cameras.  The house itself is located in a residential section of Tampa, Fla.  The city, like most cities, forbids adult establishments in residential areas.

      The legal dispute heated up when one of Voyeur Dorm’s attorneys sent a letter to Tampa’s zoning coordinator, asking her interpretation of the city zoning code as it applied to his client.  Two weeks later, in February 1999, the zoning coordinator determined that the city zoning code did apply to the Internet Web site.  The law in question defines “adult entertainment” in part as: “any premises … on which is offered to members of the public or any persons, for a consideration, entertainment featuring or in any way including specified sexual activities.…”

      The zoning coordinator determined that Voyeur Dorm qualified as an adult use within the meaning of the law.  She wrote: “Please be aware that the property is zoned RS-60 Residential Single Family and an adult use business is not a permitted use.  You should advise your client to cease operation at that location.”  The city’s Variance Review Board unanimously affirmed this opinion. 

 

Voyeur Dorm Goes to Court

      In September 1999, Voyeur Dorm filed a federal lawsuit, contending that the application of the city’s adult-use zoning law to its business violated its constitutional rights.  Its complaint alleged violations of the First Amendment, equal protection, due process, and the right to privacy.

      In November 2000, a federal district court granted summary judgment to the city in Voyeur Dorm, L.C. v. City of Tampa, 121 F. Supp. 2d 1373 (M.D. Fla. 2000).  The court determined that the city could classify Voyeur Dorm as an adult use under its city code.  “There is no language in the City Code that expressly states a requirement that the members of the public paying consideration be on the premises viewing the adult entertainment,” the court wrote.  “The premises at 2312 West Farwell Drive [address of the Voyeur Dorm house] is clearly a premises on which is offered to members of the public for consideration entertainment featuring specified sexual activities under the plain meaning of the City Code.”

      The federal district court also rejected the plaintiffs’ arguments that the code provision could not be applied to them because their business, unlike a traditional adult entertainment business, did not cause the adverse secondary effects traditionally associated with adult businesses (e.g., increased crime and decreased property values).

      On appeal, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed in Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001), in September 2001.  The Eleventh Circuit determined that the “threshold question” was whether the city code applied to Voyeur Dorm.  The court said no.

      “The City Code cannot be applied to a location that does not, itself, offer adult entertainment to the public,” the appeals court wrote.  “As a practical matter, zoning restrictions are indelibly anchored in particular geographic locations.”  In the case of Voyeur Dorm, the appeals court reasoned that the public offering of adult entertainment occurred in “virtual space.”

      The City of Tampa then appealed for en banc review.  The Eleventh Circuit denied that petition on Nov. 15, 2001.  The city then filed a petition for writ of certiorari to the Supreme Court, which the Court denied on Feb. 25, 2002.  City of Tampa v. Voyeur Dorm, Inc., cert. denied, 534 U.S. 1161 (2002).  On remand, the district court granted Voyeur Dorm’s summary judgment motion with respect to the applicability of the city zoning code to its business.  Voyeur Dorm, L.C. v. City of Tampa, 2002 U.S. Dist. LEXIS 17299 (M.D. Fla. July 17, 2002).

      As the Eleventh Circuit indicated, “thorny constitutional issues” remain as to the applicability of city zoning laws to Internet adult businesses.  These businesses do not cause the same adverse secondary effects commonly associated with traditional adult businesses, such as strip clubs or adult bookstores.

 

--David L. Hudson, Jr.