NEW YORK, NY — In a decision issued last week, the Second U.S. Circuit Court of Appeals ruled that in order to enact ordinances regulating and/or prohibiting nude dance clubs and other adult businesses, municipalities must first at least review evidence demonstrating that such businesses produce “negative secondary effects” on the surrounding area, such as increased crime rates or a reduction in property values.In essence, the court ruled that the town of Hartford failed to show that it had reviewed any actual evidence of negative secondary effects, and while the law does not require a municipality to prove a link between adult businesses and secondary effects, municipalities must at least demonstrate that they have considered relevant evidence prior to the passage of an ordinance.

The case, White River Amusement Pub Inc. v. Town of Hartford, traces back to September, 2001, when the plaintiff opened the White River Amusement Pub (WRAP) in the town of Hartford, VT.

At the time, Hartford had no ordinance prohibiting public nudity or nude dancing. In the spring of 2002, the Hartford Selectboard tasked the Town Attorney, Robert Manby, to draft a public indecency ordinance. Manby did so, noting in a letter to the Selectboard that a similar ordinance had withstood legal challenge in South Burlington, VT (in the case of SBC Enterprises, Inc. v. City of South Burlington).

Manby also noted in his letter to the Selectboard that the South Burlington City Council had passed a resolution indicating that the Council had considered the “negative secondary effects” of nude dancing when adopting their ordinance and he recommended that the Hartford Selectboard craft the same manner of resolution.

Manby’s advice went unheeded, and although the Selectboard discussed the proposed ordinance at two meetings in April and May 2002, the measure was approved “without any further discussion of the merits of the Ordinance,” as the Second Circuit noted in its decision last week.

“Defendants argue that they may rely on “any evidence” of secondary effects, regardless of whether they reviewed such evidence before or after enacting the Ordinance,” Judge Rosemary Pooler, writing for the panel, states in last week’s ruling. “We disagree.”

Judge Pooler notes that although the US Supreme Court “has not expressly decided the issue,” the standard established in City of Renton v. Playtime Theatres “suggests that pre-enactment evidence is necessary.”

In Renton, the Supreme Court ruled that the First Amendment “does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

In this case, the Second Circuit found, Hartford didn’t meet even the fairly minimal requirements delineated in Renton.

Judge Pooler notes that prior to enacting the ordinance, the Hartford Selectboard did review a few ordinances enacted by other municipalities in Vermont, and “one or two members of the Selectboard discussed negative secondary effects with constituents,” but these efforts of the Selectboard were not enough to satisfy their obligations under the law.

“The Selectboard Chair, Steadman, has since explained that he put the Ordinance on the agenda because of his desire to protect economic development opportunities within the Town, and because he was concerned about the potential for the creation of negative secondary effects in areas where public nudity was occurring,” Judge Pooler states in the decision, concluding that “(t)his evidence is insufficient to meet defendants’ burden under Renton.”

Judge Pooler observed that the “only indication that the Selectboard may have relied on evidence of the potential for negative secondary effects” law in their reported conversations with constituents. Judge Pooler seemed reticent to place much stock in those conversations, stating that the “evidence regarding these discussions is vague at best.”

“Because defendants cannot show that they relied on relevant evidence of negative secondary effects before enacting the Ordinance, they cannot establish that the Ordinance furthers a substantial government interest,” Judge Pooler concludes. “Accordingly, the Ordinance is unconstitutional because it violates the Corporation’s First Amendment right to free expression.”

The case was heard by a panel from the Second Circuit that included Judge Pooler and Judges Guido Calabresi and Barrington D. Parker.