L. London v. Zoning Board of Philadelphia
173 A.3d 847
| Pa. Commw. Ct. | 2017Background
- London sought a zoning/use registration to operate an "adult cabaret" (topless/exotic entertainment) in a CMX-2 commercial district in Philadelphia; L&I refused because adult cabarets are not permitted in CMX-2 and regulated-location separations applied.
- London appealed to the Zoning Board of Adjustment for a use variance; the Board denied the variance and declined to resolve London’s constitutional challenge to the City Zoning Code definition of "adult cabaret."
- London appealed to the trial court, which affirmed the variance denial but initially declined to rule on constitutionality; this Court remanded for consideration of the constitutional challenge.
- On remand the trial court rejected London’s challenges that Section 14-601(7)(a)(.1) (definition of "adult cabaret") was overbroad and vague; London appealed to this Court.
- The Commonwealth Court analyzed whether the ordinance, read as a whole and in context, extended to a substantial amount of protected expression (overbreadth) or failed to give fair notice (vagueness), and affirmed the trial court.
Issues
| Issue | London’s Argument | City’s Argument | Held |
|---|---|---|---|
| Overbreadth — whether the definition reaches substantially protected speech | The definition sweeps beyond nude dancing to include plays, musicals, belly/flamenco dancing, and drag shows via terms like “male or female impersonators” and “exciting”/“stimulating.” | The terms must be read in context with surrounding sexually oriented terms and the statutory definitions ("specified anatomical areas," "specified sexual activities"), limiting scope to sexually oriented entertainment. | Definition construed in context is cabined to sexually oriented entertainment and is not substantially overbroad. |
| Vagueness — whether persons of ordinary intelligence lack fair notice of what conduct is prohibited | Ambiguous words like "exciting" and "stimulating" and phrases like "similar entertainers" produce arbitrary enforcement and fail to give adequate notice. | The definition and accompanying defined terms (specified anatomical areas/sexual activities) and the requirement that the sexual component be a "feature" provide sufficient clarity. | Ordinance is not unconstitutionally vague when read in context; fair notice exists. |
| Level of scrutiny / applicable standard | (London suggested strict scrutiny) | City: ordinance is a content-neutral time, place and manner regulation aimed at secondary effects; intermediate scrutiny applies (Renton). | Court held strict scrutiny not applicable; ordinance is a time/place/manner regulation and the overbreadth/vagueness analysis governs—statute upheld. |
Key Cases Cited
- Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002) (nude dancing is expressive conduct but complete bans trigger strict scrutiny)
- Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) (zoning of sexually oriented businesses as time/place/manner regulation addressing secondary effects)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth doctrine requires substantial infringement relative to legitimate sweep)
- Conchatta, Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006) (narrowing constructions can save overbroad statutes)
- Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988) (readily susceptible limiting constructions preserve statutes)
- DePaul v. Commonwealth, 969 A.2d 536 (Pa. 2009) (presumption of constitutionality; statutory construction favors validity)
- Fabio v. Civil Service Comm’n of City of Philadelphia, 414 A.2d 82 (Pa. 1980) (void-for-vagueness requires fair notice; judicial narrowing may cure vagueness)