U.S. 11th Circuit Court of Appeals
VOYEUR DORM v CITY OF TAMPA
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 00-16346
D. C. Docket No. 99-02180-CV-T-24F
VOYEUR DORM, L.C., a Florida limited liability
company,
ENTERTAINMENT NETWORK, INC., a Florida
corporation, et al.,
Plaintiffs-Appellants,
DAN MARSHLACK,
SHARON GOLD MARSHLACK,
Plaintiffs,
versus
CITY OF TAMPA, FL, a Florida municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(September 21, 2001)
Before TJOFLAT, DUBINA and DUHE*, Circuit Judges.
_____________________________
*Honorable John M. Duhe, Jr., U.S. Circuit Judge for the Fifth
Circuit, sitting by designation.
DUBINA, Circuit Judge:
This appeal arises from Voyeur Dorm L.C.'s ("Voyeur Dorm") alleged
violation of Tampa's City Code based on the district court's
characterization of Voyeur Dorm as an adult entertainment facility.
Because we conclude the district court misapplied Tampa's City Code
because it erroneously found that Voyeur Dorm offered adult entertainment
to the public at the residence in question, we reverse the judgment of the
district court.
I. BACKGROUND
As alleged in its complaint, Voyeur Dorm is a Florida limited liability
company that maintains offices and conducts its business in Hillsborough
County, Florida. 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, concluding in relevant part:
The following generally describes the activities occurring on
the property:
1. 5 unrelated women are residing on the premises.
2. 30 Internet cameras are located in various rooms in the
house; such as the bedrooms, bathrooms, living rooms, shower and
kitchen.
3. For a fee, internet viewers are able to monitor the
activities in the different rooms.
4. The web page address is http://www.voyeurdorm.com/
5. The web page shows various scenes from the house, including a
woman with exposed buttocks. Statements on the page describe
activities that can be viewed such as "the girls of Voyeur Dorm
are fresh, naturally erotic and as young as 18. Catch them in
the most intimate acts of youthful indiscretion."
The web page can be found by going to Yahoo! and entering
`Voyeurdorm' on the search. The name of the website is, itself,
advertising the adult nature of the entertainment. Voyeur is
defined in the American Heritage Dictionary, Second College
Edition as "A person who derives sexual gratification from
observing the sex organs or sexual acts of others, especially
from a secret vantage point."
It is my determination that the use occurring at 2312 W. Farwell
Dr., as described in your letter, 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 Marshlack1 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 held
a hearing in August of 1999, at the conclusion of which the 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 cross-motions for summary judgment.
The district court granted Tampa's motion for summary judgment, from which
Voyeur Dorm now appeals.
II. ISSUES
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.
2. Whether the district court properly relied on the negative secondary
effects doctrine in determining the constitutionality of Tampa's zoning
restrictions as applied to 2312 West Farwell Drive.
3. Whether the predicate evidence that Tampa relied upon to adopt its
adult use restrictions must contemplate internet forms of communication in
order to restrict internet forms of communication.
III. STANDARD OF REVIEW
This court reviews the district court's grant of a motion for summary
judgment de novo, applying the same legal standards used by the district
court. Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 995 (11th
Cir. 1998).
IV. 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.
Section 27-523 defines adult entertainment establishments as
[a]ny 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 either by single individuals or groups,
distinguished by their display or depiction of specified
anatomical areas or specified sexual activities, as defined in
this section.
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."
Voyeur Dorm, L.C., et al., v. City of Tampa, No. 99-2180 (M.D. Fla. Nov.
6, 2000) (order granting summary judgment to Tampa). 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." Id.
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. See City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 50 (1986) ("[A] city's `interest in
attempting to preserve the quality of urban life is one that must be
accorded high respect.'") (quoting Young v. American Mini Theatres, Inc.,
427 U.S. 50, 71 (1976)); Sammy's of Mobile, Ltd. v. City of Mobile, 140
F.3d 993, 996-97 (11th Cir. 1998) (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, 997 F.2d
1369, 1375 (11th Cir. 1993) (noting that the "Supreme Court has held
[that] restrictions may be imposed to protect `family values, youth values
and the blessings of quiet seclusion'") (internal citations omitted).
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. We agree with this argument.
The residence of 2312 West Farwell Drive provides no "offer[ing] [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. 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. Indeed, the
public offering occurs over the internet in "virtual space."3 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. Accordingly, because the district court
misapplied section 27-523 to the residence of 2312 West Farwell Drive, we
reverse the district court's order granting summary judgment to Tampa.
Since the resolution of this threshold issue obviates the need for further
analysis, we do not reach the remaining issues regarding the
constitutionality of Tampa's zoning restrictions as applied to Voyeur
Dorm.
REVERSED.
FOOTNOTES
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[1]
Mr. and Mrs. Marshlack are the owners of the real property located at 2312
West Farwell Drive. They lease the subject property to Voyeur Dorm.
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[2]
The body of case law applying legislative restrictions to adult
entertainment establishments relies on adverse effects that debase
adjacent properties. See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277
(2000) (relying on the negative secondary effects doctrine to uphold a
city's ordinance as applied to an erotic dancing establishment); City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (upholding a zoning
ordinance that prohibited adult motion picture theaters from operating in
certain locations based upon the negative secondary effects created by
such theaters); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976);
Flanigan's Enterprises, Inc. v. Fulton County, 242 F.3d 976 (11th Cir.
2001) (holding that a local ordinance failed to further the county's
purported concern with negative secondary effects and was thus
unconstitutionally applied); Ward v. County of Orange, 217 F.3d 1350 (11th
Cir. 2000); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th
Cir. 1998); Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985).
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[3]
See Reno v. ACLU, 521 U.S. 844, 851 (1997) (stating that internet
communication is "a unique medium - known to its users as `cyberspace' -
located in no particular geographical location but available to anyone,
anywhere in the world, with access to the Internet").
Credits
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