Marcie Oppenheimer Nolan Nancy Stroud James E. White Johanna M. Lundgren This session focused on the recent state and federal cases impacting daily activities of planners, focusing on “hot button” land uses which involve layers of local, state and federal regulations, and emphasizing the needs of local government planners in understanding the legal constraints on the treatment of certain land uses. Planners also learned best practices for addressing locally unwanted land uses (“LULUs”) such as “pain clinics”, halfway houses and rehabilitation centers and “big box” commercial uses that pose significant compatibility issues and challenges for local governments.

1. Land Use Law Update:
What’s New in Land Use Law and
Local Regulatory Strategies
Legal updates for planners

2. PRESENTERS
Nancy Stroud, Esq., AICP, Lewis Stroud & Deutsch,
P.L.
Marcie Oppenheimer Nolan, Esq., AICP, Becker &
Poliakoff, PA
Johanna M. Lundgren, Esq., AICP, Weiss Serota
Helfman Pastoriza Cole & Boniske, P.L.
James E. White, Esq., AICP, Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L.

3. APA FLORIDA CASES
Carillon Community Residential, Inc. v. Seminole
County (July 2, 2010)
Martin County Conservation Alliance and 1000
Friends of Florida, Inc. v. Martin County,
Department of Community Affairs, Martin Island
Way, LLC and Island Way, LC, 2010 WL 5072588
(Fla. 1st DCA December 10, 2010) (motion for
rehearing pending)

4. APA FLORIDA CASES
Nancy Stroud, Esq., AICP, Lewis Stroud & Deutsch, P.L

5. Carillon Community Residential Inc. v. Seminole County, So. 3d,
2010 WL 2628692 (Fla. 5th DCA July 2, 2010)
Key Issue: What level of Due Process is required at
Quasi Judicial hearing for a petitioner/participants
to the proceeding?
At rezoning hearing the County Commissioners denied
adjacent property owners the right to cross-examine
witnesses.
Homeowners Association appealed on a denial of due
process claim (14th Amendment)

6. Carillon Community Residential, Inc. v. Seminole County
APA Florida interest
No position on the merits of the County decision to
approve particular development
Interest in advocating for the rights of affected parties
to participate fully and meaningfully in the local quasi-
judicial process so as to contribute to effective decision
making and so as to preserve their due process rights
and rights for standing on judicial appeal
Reference to APA FL Citizen Participation Policy and
Citizen Standing

7. Carillon Community Residential, Inc. v. Seminole County
APA Florida strongly supports citizen access and
public input to the planning process and is committed
to improving citizen involvement through local
planning initiatives and legislative changes to
Florida’s growth management framework. APA
Florida supports an open and collaborative planning
process that includes meaningful citizen participation
through reasonable notice, open public records and
accessibility to all stages of the planning process, as
well as promoting the use of citizen participation best
practices at the local level.

8. Carillon Community Residential, Inc. v. Seminole County
Citizen standing and public participation are
fundamental to an effective growth management
process. APA Florida supports the rights of citizens to
meaningfully participate in the planning process and
will oppose proposals to weaken citizen standing.

9. Carillon Community Residential Inc. v. Seminole County
The Circuit Court and 5th District Court of Appeals upheld
the Commission’s decision
“core” of due process is the right to notice and opportunity
to be heard
Court distinguished between Petitioners (participants) and
Parties
Party must be able to “present evidence, cross-examine
witnesses, and be informed of all facts upon which the
commission acts”
Participants are entitled to “some measure” of due process
Commission took questions from the participants and asked
them of the parties

10. Carillon Community Residential Inc. v. Seminole County
TAKE AWAY FOR PLANNERS
Local ordinances can expressly afford interested
parties the right to cross examine
Notice and Opportunity to be heard are still KEY
requirements

11. Martin County Conservation Alliance v. Martin County
Key Issue:
Does the judicial use of attorneys’ fees sanctions in
this case set a dangerous precedent in the
interpretation of the Florida statute, that chills
appellate advocacy especially by average citizen,
small business or nonprofit organizations?

12. Martin County Conservation Alliance v. Martin County
Facts of the Case
Martin County Conservation Alliance and 1000 Friends of
Florida appealed comprehensive plan amendments related
to development outside urban serviced district and in
agricultural area. Given standing in administrative hearing.
Proceedings.
Lost administrative hearing, appealed to First District Court
of Appeals, where court found that the appellants had no
appellate standing. (June 21, 2010).

13. Martin County Conservation Alliance v. Martin County
Court followed decision with another decision
(December 14, 2010), finding that the appellants and
their counsel should pay attorneys fees of County, DCA
and developers because “standing clearly is not
present” and appeal was frivolous and without merit.
Section 57,105, Florida Statutes. Standing test for
administrative proceedings is more liberal than
appellate review standard.
Neither DCA nor the County asked for sanctions.

14. Martin County Conservation Alliance v. Martin County
Dissent in opinion:
While dissent agrees that Alliance and Friends did not
demonstrate appellate standing, sanctions order is not
justified
Decision “converts Section 57.105 into a fee shifting
statute and will create a precedent that will severely
chill appellate advocacy.”
Standing should not depend on the merits of the
underlying claim – should not have to win on the merits
to establish standing. Appellants’ standing argument
based on the evidence in this case had some basis

15. Martin County Conservation Alliance v. Martin County
Moreover, the precedent being set by this order will
unduly discourage participation in the appellate
process.
“Further, such a liberal use of section 57.105 will lead
to the intolerable development that only those with
deep pockets, who can run the risk of sanctions if they
lose, will seek appellate redress. “
Appellants asked for rehearing and rehearing en
banc. APA Florida move to appear as Amicus
Curiae in support of the motions. Motions pending.

16. Martin County Conservation Alliance v. Martin County
APA Florida interest
No position on the merits of the County decision to
amend its plan
Interest in advocating for the rights of affected parties
and especially those less financially able to participate
fully and meaningfully in the local decision making and
judicial proceedings so as to contribute to effective
decision making without fear of financial devastation
Reference to APA FL Citizen Participation Policy and
Citizen Standing

17. ZONING AND LAND USE
Marcie Oppenheimer Nolan, Esq., AICP, Becker and
Poliakoff, PA

18. State of Florida v. Catalano and Schermerhorn, (Fla. 2d
Dist. App. 2011)
Key Issues:
1) Is a noise control statute which restricts the volume at which a
car stereo can play music when such music is “plainly
audible” unconstitutionally vague?
2) Is a noise control statute an unconstitutional content-base
restriction on speech?
Mr. Catalano and Mr. Schermerhorn were pulled over by
the police in their car for playing music too loud and
issued a traffic citation.

19. State of Florida v. Catalano and Schermerhorn
Section 316.3045, F.S. states,
“(1) It is unlawful for any person operating or occupying a motor vehicle on a street or
highway to operate or amplify the sound produced by a radio….. So that the
sound is:
(a) plainly audible at a distance of 25 feet or more…
(b) louder than necessary…
(3) The provisions…shall not apply..to motor vehicles used for business or political
purposes…..”
Mr. Catalano and Mr. Schermerhorn pleased not guilty on the grounds that the section
is unconstitutionally vague and overbroad, invites arbitrary enforcement, and
impinges on free speech rights.
Trial Court denied the motion
Appeal to District Court
Question certified by DCA as question of great public importance

20. State of Florida v. Catalano and Schermerhorn
VAGUENESS
In reviewing prior cases to determine whether the “Plainly Audible”
standard was too vague and overbroad to pass constitutional
scrutiny, the court stated whether the “plainly audible” standard is
applied in a noise ordinance or used in a traffic statute, the test for
constitutionality is the same.
Court reaffirmed “plainly audible” was a subjective term on its face;
thus, the court found it was vague.
CONTENT-BASED OR CONTENT NEUTRAL
The statute exempts “motor vehicles when used for business or
political purposes”
Here not content neutral

21. State of Florida v. Catalano and Schermerhorn
TAKE AWAY FOR PLANNERS
Review existing noise regulations to ensure
enforcement cannot be subjective but objective.
Provide standards for enforcement, i.e. decibel levels,
hours for such levels, etc.
Review existing sign, noise, lighting or any
ordinance where the type and nature of the speech
is distinguished and discuss with your attorney.

22. Palmer Trinity Private School, Inc. v. Village of Palmetto Bay, 31 So.
3rd 260 (Fla. 3rd Dist. App. 2010)
Key Issues:
Is there ‘right’ to rezone?
Can the specific use be part of a rezoning application?
Palmer Trinity School sought to rezone 32 acres of land immediately
next to the existing school from AU (agricultural zoning) and EU-2
(estate SF zoning) to EU-M (estate modified SF zoning allowing one
home per 15,000 square feet).
At the same time they requested a special exception and non-use
variance

23. Palmer Trinity Private School, Inc. v. Village of
Palmetto Bay
At the hearing the Village DENIED the rezoning based upon the following:
“the rezoning, if approved, would allow for the physical expansion of the
Palmer Trinity School,…and that “Palmer Trinity failed to adequately establish
through its traffic studies that its site specific application is compatible, within the
proper level of service, and failed to establish that the proposed use would not
negatively impact the community.”
The Village staff zoning analysis stated: “The requested district boundary
change to EU-M would be in keeping with the basic intent and purpose of the
zoning and land use regulations…The properties surrounding the site are
currently zoned EU-M, as a result the rezoning of the AU and EU-2 site to EU-M
would make the parcels compatible with the neighboring properties.”
Court found the denial was “reverse spot zoning” and illegal. The applicant had a
right to rezone their property consistent with the surrounding zonings.

24. Palmer Trinity Private School, Inc. v. Village of
Palmetto Bay
TAKE AWAY FOR PLANNERS
Procedurally separate each application - Village staff did this
correctly!
In each staff report explicitly state the basis for approval and or
denial is based solely based upon the established criteria and
provide analysis to support and/or deny.
Speak with Attorney and Manager before the hearing to make sure
they are aware that the issues may become intertwined.
Make sure someone educates the elected officials regarding the
applications and the processing of each individual application.
Control the temptation to allow staff report findings and conclusions
to become intertwined.

25. Arbor Properties v. Lake Jackson Prot. Alliance, 2010 WL
4967715 (Fla. 1st DCA Dec. 8, 2010).
Request was to change the land use to allow for a 107 acre residential
development in Tallahassee/Leon County.
Conservation Element had polices to restrict/guide development called
“special development zones” for Lake Jackson to restrict activities “that
impact the quality of the stormwater.”
Land Use Element created “Lake Protection Zones” and allowed future
development if competent scientific evidence [shows] that the development
is “located in a closed basin that does not…discharge [rainwater runoff]
into the larger Lake Jackson Basin.”
Land Development Regulations allowed development within Lake Jackson in
areas not subject to ““special development zones”
Leon County approved rezoning for the 107 acre parcel to mixed use.

26. Arbor Properties v. Lake Jackson Prot.
Alliance
Challenge was to invalidate the DO based upon inconsistency with the
Comprehensive Plan. Their argument was that a DO cannot be issued in a
Special Development Zone because there was no exemption is this specific
policy for a closed basin system that did not impact stormwater into Lake
Jackson.
DCA found that:
A DO is considered consistent with a comprehensive plan where the ‘land
uses…and other aspects of…[the] order…are compatible with and further
the goals, objective, policies, land uses, and densities or intensities of the
comprehensive plan.”
By reviewing the applicable provisions of the Plan as a whole, finding the
most reasonable and holistic interpretation, based on both the text and the
synthesis of the document, we have no doubt that the DO is consistent with
the Plan.

27. Arbor Properties v. Lake Jackson Prot.
Alliance
TAKE AWAY FOR PLANNERS
Goals, objectives and policies are to be read
together
Make sure there are no apparent conflicts between
sections
Coordinate each element so they all work together

28. Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit
Trees, LLC, v. Palm Beach County
Right to Farm Act
Adopted June 16, 2000
Section 823.14(6), F.S.
“a local government may not adopt any ordinance,
regulation rule or policy to prohibit, restrict, regulate, or
otherwise limit an activity of a bona fide farm operation on
land classified as agricultural land pursuant to s.
191.461…”

29. Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit Trees, LLC, v.
Palm Beach County, (Fla. 4th Dist. App. 2011)
Key Issues:
1) Does Right to Farm Act preempt existing
regulations?
2) Are special permitting requirements covered by
the Act?
3) Do Home Rule Powers allow for regulation of
agriculture?

30. Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit
Trees, LLC, v. Palm Beach County
4th DCA Court held
Pre-existing ordinances remain in effect
Whether special permitting requirements “limits” an activity
of a bona fide farm operation is a material issue of fact to
be determined based upon the particular situation
Local ordinances may regulate “farming operations”
even though Chapter 163, F.S. defines “development” to exclude
“agricultural uses”, Home Rule powers and Chapter 125, F.S.
provide specific authority for adoption of ULDC, not just Chapter
163, F.S.

31. Richard Wilson, Plant Explorers, LLC, and Excalibur Fruit
Trees, LLC, v. Palm Beach County
TAKE AWAY FOR PLANNERS WITH NEW LEGISLATION
Does the new law apply retroactively?
Does it preempt areas of law?
If so, then revise ordinances as needed.
Home Rule Powers are very broad and allow
regulation when not in conflict with a preempted area
of law

32. Vacation Rentals
Chapter 2011-119
Prohibits the adoption of ordinances regulating
vacation rentals.
509.032(7)(b)A local law, ordinance, or regulation may not
restrict the use of vacation rentals, prohibit vacation rentals,
or regulate vacation rentals based solely on their
classification, use, or occupancy. This paragraph does not
apply to any local law, ordinance, or regulation adopted on
or before June 1, 2011.
Eliminates from the definition section units rented for less than 30
days or one month, whichever is less.
Vacation Rentals are single family, two-family, and four-plex units
now defined as transient public lodging.

33. Discussion And Questions

34. LOCALLY UNWANTED LAND USES
Johanna M. Lundgren, Esq., AICP, Weiss
Serota Helfman Pastoriza Cole &
Boniske, P.L.

35. Locally Unwanted Land Uses (LULUs)
Locally unwanted land use is a planning term. It is a land use that is
useful to society, but objectionable to its neighbors. The acronym is
LULU.
Planning seeks to distribute and reduce the harm of LULUs by zoning,
environmental laws, community participation, buffer areas, clustering,
dispersing and other such devices. Thus, planning tries to protect
property and environmental values by finding sites and operating
procedures that minimize the LULU’s effects.
LULUs always provide services a community needs, but few people
want to live near them because of their externalities, real or perceived.

36. Locally Unwanted Land Uses (LULUs)
The term was coined in 1981 by Rutgers and Princeton University urban
planning professor Frank J. Popper in his paper, "Siting LULUs"
published in Planning Magazine.
LULUs include facilities that may be socially desirable, obviously
needed or legally required but nobody wants in his or her backyard.
Such facilities may include adult uses, signs, religious institutions, half-
way houses, correctional facilities, homeless shelters, pain clinics,
gaming, hazardous waste treatment and disposal facilities, solid waste
landfills and incinerators, recycling centers, low-income housing, and
wastewater treatment facilities.

37. Locally Unwanted Land Uses (LULUs)
Not In My Backyard (NIMBY)
NIMBY is an acronym for the phrase not in my back yard. The term is used
to describe opposition by residents to a proposal for a new development
close to them.
Since the late 1970s, the Not In My Backyard (“NIMBY”) phenomenon has
become a challenge for urban planners, policymakers, developers and
regulators. NIMBYism characterizes a negative social response to LULUs.

38. Controversial Land Uses (LULUs)
hazardous waste treatment and disposal facilities
recycling centers and transfer stations
landfills and incinerators
wastewater treatment plants
junkyards
airports
half-way houses/sober houses/residential treatment
facilities
correctional facilities
homeless shelters

39. Controversial Land Uses (LULUs)
pain clinics/pill mills
adult arcades/adult internet cafes/gaming
big boxes/formula retail
pawn shops
check cashing/pay day lenders
package liquor stores
bars/nightclubs
group homes
First Amendment Uses
Adult
Religious
Signs
Tattoo parlors

40. Zoning Regulations
Generally, zoning laws will contain a provision which states that uses not listed
as allowed are prohibited.
However, some uses have been given special status due to court decisions or
state or federal law.
Can we deny an application based on community opposition?
If allowed by zoning, and requirements are met by the applicant, general
community opposition is not a valid basis for denial of a land use application.
Quasi-Judicial Matters
Constitutionally Protected Uses
Local governments may be preempted from denying certain uses

41. Regulating Locally Unwanted Land Uses . . . Generally
Regulation of most uses through local government zoning and
land use authority is subject to rational basis review
If regulation is not unreasonable, arbitrary or capricious, it will
be upheld
Fairly debatable standard favors the local government
decision
Regulation is presumed constitutional

42. Rational Basis Standard and Local Government
Regulation of Unwanted Land Uses
Applies to many types of unwanted land uses that
are not subject to:
greater protection under U.S. Constitution (“protected
uses”)
For certain uses, statutory preemption applies

43. Pain Management Clinics and “Pill Mill” Pharmacies
“Internet Cafes” /Internet Sweepstakes Cafes
Group Homes
Some other controversial local land uses: Big Box Stores;
Payday Lenders and Check Cashing Stores; Nightclubs; Pawn
Shops ….

44. Pain Clinics and “Pain Pharmacies”
Proliferation of pain clinics and controlled substances overprescription by
“pill mills” in Florida is the result of lack of central prescription tracking
database
Pain management clinics are medical offices which offer services to treat
pain, primarily through prescription of opioid controlled substances
Over the past several years, Florida became nation’s epicenter for the
illegal diversion of controlled substances. From August 2008 to November
2009, a new pain clinic opened in Broward and Palm Beach counties on
average every 3 days.
Impacts on communities from pain clinics and pain pharmacies: uses are
targets for robberies and burglaries, and create secondary effects on
surrounding businesses and residents (parking overflow, loitering, litter,
crime)

45. “Pain Pharmacies”

46. Pain Clinics and “Pain Pharmacies”
Local government response: moratoria and regulations
Legislative response, starting in 2009
Progressively stronger legislation
2011 Legislation: strongest regulations yet
Restriction on Wholesalers
Restrict On- site Dispensing
Enhanced DOH Inspection and enforcement
Further Regulations of Pharmacies

47. Pain Clinics and “Pain Pharmacies”
Options for Local Governments:
- Effective definitions and amendments to zoning use list
- Distancing requirements to prevent proliferation and collusion
- Conditional use / special exception review of pain clinics and pharmacies

49. Through the Loopholes: From Pain Clinics to Internet
Sweepstakes Cafes
Local governments on the forefront
The next LULU exploiting legislative loopholes
Patrons purchase internet time or phone cards, and receive “sweepstakes
entries”, and use computers to “reveal” sweepstakes results, then cash in
winning entries at front desk (winning cash or merchandise)
Impacts on community: large amounts of cash on-site and resulting crime,
exacerbation of gambling habits in community, parking overflow and
loitering affecting nearby businesses

50. Internet Sweepstakes Cafes/Adult Arcades
Uses are designed and operated to avoid meeting elements necessary to
constitute an illegal lottery. Operators claim that the games are legal
promotions or charitable drawings allowed under Chap. 849, F.S.
Local government strategies:
- Moratoria
- Prohibition of defined “simulated gambling devices”, crafted to ensure
consistency with state law
Well-funded operators have challenged
local ordinances

51. Group Homes
Group residences: Assisted Living Facilities, Halfway Houses
Chapter 419, F.S. provides for the establishment of community residential
homes (CRHs). Under Section 419.001(2), F.S., a community residential
home with six or fewer residents “shall be deemed a single-family unit and
a non-commercial, residential use for the purpose of local laws and
ordinances.” CRHs with 7 to 14 unrelated residents subject to zoning
regulations for other multifamily residential uses in the zoning district.
Some group residences are not subject to Chap. 419, F.S., but may be
protected under federal and state law based on status of occupants (i.e.
“sober houses”, as drug addicts are considered protected by FHA)
Federal Fair Housing Act and Fair Housing Amendments, and Florida Fair
Housing Act

52. Other LULUs …
“Rational Basis” regulations
Distancing and supplemental standards

53. Example Regulations
Goals: Address Problem Use Proliferation; Foster Redevelopment
Sec. 110-190. Uses subject to minimum separation distances.
(A) The following uses shall be separated from similar existing uses, or
similar approved but unbuilt uses, by the minimum distances
specified below, measured from property line to property line unless
otherwise indicated. Sec. 700-140 provides more detailed
information as to how minimum distance separations must be
measured.
(1) Check cashing stores: two thousand five hundred (2,500) feet.
(2) Pawn shops: two thousand five hundred (2,500) feet.
(3) Thrift shops: two thousand five hundred (2,500) feet.
City of Dania Beach, Florida

54. Clear and Precise Regulations
The following uses if first approved as a conditional use . . . :
• Check cashing/pay day advance stores.
Miramar, Florida
The specific conditions set forth below shall be applied to each proposed
use during site development plan review . . . .
• Check cashing stores. No check cashing store shall be permitted to
operate within one thousand five hundred (1,500) feet of another check
cashing store.
• Convenience stores. No convenience store shall be permitted to
operate within one thousand five hundred (1,500) feet of another
convenience store.
• Thrift shops. No thrift shop shall be permitted to operate within two
thousand five hundred (2,500) feet of another thrift shop.
Pembroke Park, Florida

55. Development and Use Standards for Big Box LULUs
Supplemental development standards target large retail establishments
(“big box” development)
Definition with trigger square footage (i.e. 50,000 or 75,000 s.f. gross
retail area)
Limit big box retail to most intense commercial districts
Architectural design and landscaping standards apply

56. General Principles
A moratorium offers needed time to evaluate the situation and
prepare a regulatory strategy, but must be limited
Consult with your local government’s legal counsel early in the
process of considering new regulations
Carefully evaluate and draft regulations, and beware of
outright bans
Make sure all required notice and hearing procedures are
followed

57. CONSTITUTIONAL ISSUES
James E. White, Esq., AICP, Weiss Serota
Helfman Pastoriza Cole & Boniske, P.L.

58. First Amendment Land Uses
The First Amendment, U.S. Constitution
Applies to the states (and local governments)
First Amendment
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.

59. First Amendment In Land Use
(Key Components)
Regulation of Religious Assemblies & Uses
Free Exercise of Religion
No Establishment of Religion
Freedom of Assembly
Regulation of Signs & Newsracks
Freedom of Speech and the Press
Regulation of Adult/Sexually Oriented Uses
Freedom of Speech
Parades & Demonstrations in Public Forum
Freedom of Speech
Freedom of Assembly

60. Regulation of First Amendment-
Protected Land Uses
Enhanced scrutiny
Not presumed constitutional
No greater regulation than necessary to advance a substantial governmental
interest
Need clear, detailed statement of intent (and record) to establish the
governmental interest, and that this regulation advances the interest
Justifying regulation of the community as a whole - not tailored to individual
circumstances
See Ward v. Rock Against Racism, 491 U.S. 781
(1989); City of Renton v. Playtime Theaters, Inc., 475 U.S. 1 (1986) (record for
adult use regulation).

61. Underlying Principles for Adopting
Regulations
Clear drafting to avoid ambiguity and vagueness
Non-discretionary standards to the greatest extent possible
to avoid the danger of selective enforcement
Tailor regulation to the problem being addressed, to avoid
overbroad regulation
Note clear deadlines
Provide clear path to judicial relief
See, FW/PBS, Inc. v. City of Dallas, 110 S. Ct. 596 (1990).

62. First Amendment Key Principles
Content neutrality is the touchstone by which government
regulation of expression is judged
–“The First Amendment generally prevents government from
proscribing speech [because] of disapproval of the ideas
expressed. Content-based regulations are presumptively
invalid.
See, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

63. First Amendment Key Principles
Government regulation is a lawful content-neutral “time, place, and
manner” restriction on otherwise First Amendment-protected expression,
if:
1. Regulation is within power of government
2. Furthers an important government interest
3. The government interest is unrelated to the suppression of
speech
4. The incidental restrictions on free speech are no greater than
necessary to further the asserted government interest
See, United States v. O’Brien, 391 U.S. 367 (1968).

64. Adult Use Regulations
Can laws be passed to prohibit adult uses from coming to the
community?
NO!
The U.S. Supreme Court has stated that there is a presumption of First
Amendment protection for all establishments that deal in “speech
related” materials or activities.
As long as the business is not engaged in any illegal activities, such as
the distribution of obscenity or the promotion of prostitution, then they
must be allowed to operate.

65. Adult Use Regulations
“indecent” vs. “obscene” (illegal)
“Obscenity” lacks First Amendment protection and may be suppressed
by the government
Obscenity is a legal term of art with an “objective” standard
In Florida, obscenity is regulated by the state
Legal definition of obscenity has changed over time
Current definition is provided by the Miller test
Therefore if engaged in legal “speech related” activities or materials,
you CAN NOT pass legislation prohibiting them from coming into your
community.

66. Regulation of Adult Uses
(Sexually Oriented Businesses)
How can local governments regulate adult uses?
The Supreme Court has held that content neutral regulations
are considered to be incidental burdens on speech and may
be regulated in time, place, and manner.
There are two primary ways to regulate adult uses:
1. Licensing
2. Zoning

67. Zoning Regulations
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).
(Upholds Detroit adult use zoning “dispersal” ordinance)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
(Upholds adult use zoning separation ordinance)
Established Several Key Elements:
Concern for quality of life was valid governmental interest
City may rely on relevant studies from other communities in order to justify
ordinance
City may disperse facilities or concentrate them
“Secondary Effects Doctrine”
Available avenues of communication (sites/acreage)

68. Zoning Regulations
To be reasonable, time, place, and manner restriction, ordinance
infringing on First Amendment activities not only must serve significant
state interests but also must leave open adequate alternative avenues
of communication
Permissible location restrictions on adult uses may include:
1. Limiting the location of adult uses to certain zoning districts.
2. Requiring spacing from other adult uses.
3. Distance requirements from residential or civic uses, such as parks and
schools.
4. Distance requirements from religious institutions.

69. Zoning Regulations
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
(How much evidence of negative “secondary effects” is necessary to
sustain an ordinance?)
The Supreme Court has acknowledged that businesses that offer sexual
materials and services create certain types of negative side effects,
which the Court terms “adverse secondary effects”
Communities have a right to regulate adult uses in order to minimize or
eliminate the adverse secondary effects associated with such uses.

70. Zoning Regulations
Negative Secondary Effects
Ambient crime generation
Crime (Rape, Sexual Assault, Drugs)
Prostitution
Blight (People and business fleeing the community)
Diminution of surrounding property values (Residential and Commercial)
Health Concerns (STD’s)
These relate to statistically-supported increases in crime and nuisances
and are important factors in establishing the legal justification for
regulating adult uses

71. Zoning Regulations
Evidence of negative secondary effects must be
placed into the legislative record and must be based
on relevant studies
Legislators must review studies
May rely on studies conducted by other communities
if reasonably believed to be relevant

72. Licensing
Regulating Adult Uses Outside the Scope of Zoning
Government has greater discretion to regulate the uses related to
alcoholic beverage licensees – Business regulations
Can require separation of alcohol from nudity
Licensing regulations can address all manner of issues, such as:
Criminal backgrounds of those involved in the use
Public health considerations, arising from the materials used in the
construction and furnishings, and requirements for cleaning the
establishment
Mandatory distance between dancer and patron

73. Licensing
It is important for licensing regulations to provide
clear and explicit standards and ready means for
court review.
These requirements are necessary because they
involve obtaining governmental approval prior to
engaging in “protected speech” and, thus, are
typically considered “prior restraint” regulations.

74. Violation of Constitutional Rights
Financial costs
Direct and indirect costs of litigation
Attorneys’ fees and damages
Code is struck down
Plaintiffs and/or court determine location of adult
use
Court-ordered amendments to City’s code

75. Adult Use Regulations
Summary of Key Principles
Government may regulate the time, place, and
manner of First Amendment-protected adult uses
Government may not completely suppress or “zone
out” adult uses from its jurisdiction
Conditional uses or special exceptions do not count
towards required constitutional minimums
Zoning code must permit “adequate alternative
avenues” “by right”

76. Regulation of Religious Uses
The First Amendment to the U.S. Constitution and state
counterparts protect an individual's right to the free exercise
of religion and prevent governments from establishing a
particular religion or endorsing religious exercise.
Federal and state laws, including the Religious Land Use and
Institutionalized Persons Act (RLUIPA) and the Religious
Freedom of Restoration Act (RFRA), create statutory causes
of actions against governmental entities for violations of
religious rights.

77. Regulation of Religious Uses
The First Amendment to the U.S. Constitution provides that "Congress
shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech..."
The Establishment Clause generally requires government neutrality
toward religion. It prohibits laws that advance religion or express
favoritism toward religion or that foster "an excessive entanglement"
with religion.
The Free Exercise Clause, on the other hand, prohibits governmental
entities from substantially burdening the free exercise of religion, unless
the government can establish that the burden is "the least restrictive
means" of furthering a "compelling governmental interest" such as
public health or safety.

78. RLUIPA = Religious Land Use and
Institutionalized Persons Act of 2000
42 U.S.C. §§ 2000cc, et seq.
The Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. 2000 is a civil rights law that was enacted by Congress in 2000.
Protects individuals and religious institutions from discriminatory and
unduly burdensome land use regulations.
RLUIPA imposes federal standards that can expose local governments
to serious liability should they run afoul of these standards.

79. RLUIPA
That portion of RLUIPA that regulates the protection of land use as
religious exercise states:
“No government shall impose or implement a land use regulation in a
manner that imposes a substantial burden on the religious exercise of a
person, including a religious assembly or institution, unless the government
demonstrates that imposition of the burden on that person, assembly, or
institution:
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling
governmental interest.”

80. Who And What Are Covered By
RLUIPA?
RLUIPA protects the religious exercise of “persons,” defined
to include religious assemblies and institutions in addition to
individuals.
RLUIPA has been used, for example, to protect houses of
worship, individuals holding prayer meetings in their homes,
religious schools, religious retreat centers, faith-based
homeless shelters, soup kitchens, group homes, and other
social services.

81. RLUIPA: Substantial Burden
Protection against substantial burdens on religious exercise: Section 2(a)
of RLUIPA prohibits the implementation of any land use regulation that
imposes a “substantial burden” on the religious exercise of a person or
institution except where justified by a “compelling governmental
interest” that the government pursues in the least restrictive way
possible.
Applies where the substantial burden is imposed in the implementation
of land use regulation with formal or informal procedures or practices
that permit the government to make, individualized assessments of
the proposed uses

82. RLUIPA: Definitions
“Religious exercise” is defined by RLUIPA as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.”
Religious exercise also includes “the use, building or conversion of real
property for the purpose of religious exercise.”
“Land use regulation” is defined as “a zoning or landmarking law, of the
application of such a law, that limits or restricts a claimant’s use or
development of land (including a structure affixed to land), if the
claimant has an ownership, leasehold, easement, servitude, or other
property interest in the regulated land or a contract or option to
acquire such an interest.”

83. RLUIPA: Substantial Burden
The substantial burden inquiry is fact intensive and specific
Generally, when a local government takes one of the following types of
actions, it may constitute a substantial burden on religious exercise
under RLUIPA:
effectively barring the use of a particular property for religious activity;
imposing a significantly great restriction on religious use of a property;
or
creating significant delay, uncertainty, or expense in constructing or
expanding a place of worship, religious school, or other religious
facility.

84. RLUIPA: Substantial Burden
Courts have found substantial burdens on religious exercise
in:
denial of a church construction permit due to onerous off-street
parking requirements imposed by a city
permit condition requiring a religious retreat center to operate as
a bed-and-breakfast
denial of construction of a parish center
denial of expansion plans for a religious school, and
denial of the ability to convert a building’s storage space to
religious use

85. RLUIPA: Substantial Burden
Courts have found no substantial burden violation when a
church was denied:
the amount of off-street parking it would have preferred when
there were reasonable parking alternatives available
when a religious high school was denied the ability to operate a
commercial fitness center and dance studio out of a portion of its
building
when a church was barred from demolishing an adjacent
landmarked building it had purchased in order to construct a
family life center, as there was other space on the church’s
campus that would be suitable

86. RLUIPA: Substantial Burden
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir.
2004): Substantial burden is more than an inconvenience to religious
exercise
Williams Island Synagogue, Inc. v. City of Aventura, 358 F. Supp.2d
1207 (S.D. Fla. 2005): Denial of conditional use permit for synagogue
was not a substantial burden.
Christian Romany Church Ministries, Inc. v. Broward County, 2008 WL
942565 (Fla. 4th DCA 2008) (under RLUIPA and Florida RFRA): If
nothing unique or special about this particular church building, and
nothing about the location that was unique or integral to the conduct of
the religion, county can condemn and force the relocation of a church.
Hollywood Comm’y Synagogue, Inc. v. City of Hollywood, 430 F.
Supp.2d 1296 (S.D. Fla. 2006) (under RLUIPA and Florida RFRA): No
substantial burden in city’s order to relocate synagogue from operating
in a single family house.

87. RLUIPA: Substantial Burden
Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005):
Requirement for a special exception to operate a religious organization
in a rabbi’s home was not a substantial burden.
Westgate Tabernacle, Inc. v. Palm Beach County, 14 So. 3d 1027 (Fla.
4th DCA 2009): Requirement to obtain conditional use permit to
operate a homeless shelter as part of a church was not a substantial
burden under RLUIPA or Florida RFRA (church had failed to apply and
thus failed to exhaust its administrative remedies, and could have
obtained one with renovations).
First Vagabonds Church of God v. City of Orlando, Fla., 610 F.3d 1274
(11th Cir. 2010) (ordinance requiring anyone conducting a “large
group feeding” within downtown park district to obtain permit, and
limiting the number of permits a person would be allowed to obtain
during a year, not violative of Florida RFRA) vacated for rehearing en
banc 616 F.3d 1229.

88. RLUIPA: Equal Terms
Protection against unequal treatment for religious
assemblies and institutions: Section 2(b)(1) of RLUIPA
provides that religious assemblies and institutions must be
treated at least as well as nonreligious assemblies and
institutions.
Protection against religious or denominational discrimination:
Section 2(b)(2) of RLUIPA prohibits discrimination “against
any assembly or institution on the basis of religion or religious
denomination.”

89. RLUIPA: Equal Terms
This section extends to:
Regulations that on their face treat religious assemblies or
institutions on less than equal terms
Regulations that may be facially neutral, but as applied treat
religious uses on less than equal terms than nonreligious uses.
Determining if a religious use is treated on “less than equal terms”
than a secular use requires a comparison of how the two types of
entities are treated in a zoning code.

90. RLUIPA: Equal Terms
Courts have found the equal terms section violated in
situations where:
places of worship were prohibited but private clubs were
permitted
religious assemblies were prohibited but auditoriums, assembly
halls, community centers, senior citizen centers, civic clubs, day
care centers, and other assemblies were permitted
places of worship were prohibited but community centers,
fraternal associations, and political clubs were permitted.

91. RLUIPA: Equal Terms
Local governments can avoid violating by ensuring that their
regulations focus on external factors such as:
size
impact on traffic and parking
intensity of use
hours of operation
noise
similar objective criteria in regulating land uses
Do not focus on the content of the speech and assembly
activities being regulated.

92. RLUIPA: Equal Terms
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County,
450 F.3d 1295 (11th Cir. 2006): Requirement for nonagricultural,
nonresidential uses, to be separated by at least 1,000 feet from
agricultural and residential uses was not a “gerrymandering” equal
terms violation. Regulation applied to all uses equally, unless a variance
or rezoning was obtained, and criteria for relief were neutral and were
neutrally applied.
Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005):
Requirement of permit to conduct religious services two to three times a
week in rabbi’s home, as implemented by code enforcement order,
violated equal terms. Groups that met in homes with similar frequency,
such as Cub Scouts, family gatherings, and other assemblies without a
religious purpose, were not required to obtain a permit.

93. RLUIPA: Equal Terms
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir.
2004): Zoning code allowed private social clubs to locate on first floor
downtown, but required religion to locate above first floor held to be a
violation of equal terms. Town’s interest in retail synergy underlying the
regulation did not justify different treatment, because synagogue was
no less pedestrian-friendly than private club. Private clubs and places
of worship were similar uses required to be treated similarly.
Williams Island Synagogue, Inc. v. City of Aventura, 358 F. Supp.2d
1207 (S.D. Fla. 2005): Requirement that synagogue obtain a
conditional use permit before moving into a residential zoning district,
while the current use of the facility as a condo building’s accessory
party room did not require such a permit, did not violate equal terms.
City not required to treat religious uses identically with non-religious
uses.

94. RLUIPA-
Prohibition Against Total Exclusion
Protection against total exclusion of religious
assemblies: Section 2(b)(3)(A) of RLUIPA provides
that governments must not totally exclude religious
assemblies from a jurisdiction.

95. RLUIPA-Zoning Regulations
RLUIPA is not a blanket exemption from zoning laws
As a general matter, religious uses must apply for
the same permits, follow the same requirements,
and go through the same land-use processes as
other uses.

96. Define and Regulate
“Place of Public Assembly”
Place of public assembly shall mean any area
where individuals assemble, whether publicly or
privately owned and maintained. Includes, but is
not limited to, public assembly buildings such as
auditoriums, fraternal lodges, community centers,
clubhouses, and theaters; and places of worship or
other facilities that are used for prayer and
assembly by persons of similar beliefs.

97. Local Governments Must Review Their
Regulations
Analyze Code of Ordinances
Address Community and Planning Concerns
Assure the minimum provision for the use in the
community
Assure regulations do not unduly limit the
opportunity for religious uses to locate within the
community
Do not single out religious uses for worse treatment
than other similar non-religious uses

98. Local Governments Must Review Their
Regulations
Assure clear, unambiguous and non-discretionary regulations
Review and evaluate the potential for inadvertent
discrimination in review process and development standards
What works today may be invalid next year-check for the
latest updates in the law
Seek expert assistance in reviewing and drafting regulations

99. Regulation of Tattoo Parlors
A common concern expressed by local governments when
drafting zoning regulations that preclude or limit tattoo parlors
is the health and safety of the community, and the belief that
the area may be blighted by the presence of such
establishments.
Local Governments must be mindful of conflicting case law
discussing whether tattooing is expressive conduct, which could
afford First Amendment protection to the use.

100. Regulation of Tattoo Parlors
A regulation of purely expressive activity
(spoken/written) is entitled to full First Amendment
protection and the City’s regulation is constitutional
only if it is a reasonable time, place and manner
restriction on protected speech.
See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)

101. Regulation of Tattoo Parlors
A regulation of “pure speech” is a reasonable time,
place manner restriction if:
It is justified without reference to the content of the message;
It is narrowly tailored to serve a significant governmental
interest; and
It leaves open ample alternative channels for communication
of information.
See Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)

102. Regulation of Tattoo Parlors
The U.S. Supreme Court case Texas v. Johnson sets out the
test for determining whether symbolic speech – that is,
conduct with expressive elements – is entitled to First
Amendment Protection.
Expressive conduct is only entitled to First Amendment
protection if:
The actor intends to convey a particularized message; and
There exists a great likelihood that the message would be
understood by those who viewed it.

103. Regulation of Tattoo Parlors
Expressive Conduct Regulation
A regulation of expressive conduct is justified if the regulation is
within the constitutional power of the government;
It furthers an important or substantial government interest;
The interest is unrelated to the suppression of free expression; and
Any incidental restriction on alleged First Amendment freedoms is
no greater than necessary to further the important interest.
See U.S. v. O’Brien, 391 U.S. 367, 376 (1968)

104. Regulation of Tattoo Parlors
Pre Hermosa Beach Tattoo Jurisprudence
Hold Fast Tattoo v. City of North Chicago, 580 F. Supp. 2d 656,
659-61 (N.D. Ill. 2008)
Held that act of tattooing fails first prong of Johnson test
(particularized message) because The very nature of
tattooing is to custom tailor a “different or unique” message
for each customer.

105. Regulation of Tattoo Parlors
Anderson v. City of Hermosa Beach, 621 F.3d 1051
(9th Cir. 2010)
Court held that tattooing was purely expressive activity,
more akin to writing, than just conduct potentially expressive
of an idea. As such, it was entitled to full First Amendment
protection.
The Court found that tattooing was a process like writing
words or drawing a picture, except that it was done on a
person’s skin, and, as with writing or painting, the tattooing
process was inextricably intertwined with the purely
expressive product.

106. Regulation of Tattoo Parlors
Anderson v City of Hermosa Beach
The sale or business of tattooing was entitled to full constitutional
protection, and the City’s regulation would be constitutional only if it
was a reasonable “time, place, or manner” restriction on protected
speech.
Plaintiff did not dispute that the City had a significant interest in
regulating tattooing because of the health and safety concerns
Argued the regulation was substantially broader than needed because
the interests could be met through sanitary and sterilization
requirements
Court held the ban “completely foreclosed” a venerable and unique
means of communication and accordingly, the ban failed the time, place
or manner analysis.

107. Discussion And Questions