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High Court Passes on Review of Adult Ordinance

4 Nov, 2003 By: Kurt Indvik

The United States Supreme Court yesterday declined to review a federal appeals court decision last October that had struck down a San Antonio zoning ordinance that attempted to bar businesses that carried 20 percent or more adult product from doing business near residential neighborhoods.

This is the last stop in a protracted legal battle between Encore Video and the city, which began in 1997. The city had requested the U.S. Supreme Court to review the case.

Last October, the U.S. Fifth Court of Appeals had ruled against a lower court's decision that found the ordinance constitutional, saying it negatively restricts the location of businesses, such as video stores, that carry adult product but do not have any on-premise viewing. The ordinance, said the appeals court, was an overly-broad interpretation of the U.S. Supreme Court's “secondary effects ordinances,” which must be narrow in focus and not harm businesses that offer adult products for off-site use.

The appeals court said the city failed to prove that stores that sell adult products for off-site use caused such secondary effects as more crime or loss of property values in the neighborhoods where they operated.

The Video Software Dealers Association, which supported Encore Video's position in the case, said that yesterday's decision by the high court was significant because it was the second time it has refused to review a decision that invalidated a secondary effects ordinance that attempted to regulate mainstream video stores carrying adult products.

“There is no evidence whatsoever that merely renting and selling adult videos creates any harm to neighborhoods,” VSDA president Bo Andersen said. “Communities that attempt to classify video stores that offer adult product along with other categories of videos as ‘adult businesses' are engaging in thinly disguised censorship. Hopefully, this favorable precedent will put a stop to that.”

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