Opinion
I.D. Nos. 0112001060, 0109002426, 0112000958.
Submitted: December 2, 2003.
Decided: March 9, 2004.
On the Defendants' Second Motion to Dismiss.
Maria T. Knoll, Esquire, Deputy Attorney General, State of Delaware, Department of Justice, Wilmington, DE, Attorney for the Plaintiff.
Thomas H. Ellis, Esquire, Deputy Attorney General, State of Delaware, Department of Justice, Wilmington, DE, Attorney for the Plaintiff.
Stephen F. Dryden, Esquire, BERKOWITZ, SCHAGRIN, COOPER DRYDEN, Wilmington, DE, Attorney for the Defendants.
Lewis H. Robertson, Esquire, Little Silver, NJ, Attorney for the Defendants.
Darrell J. Baker, Esquire, ABER, GOLDLUST, BAKER OVER, Wilmington, DE, Attorney for the Defendants.
John S. Malik, Esquire, Wilmington, DE, Attorney for the Defendants.
OPINION and ORDER
STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS
Presently before the Court is the Defendants' second motion to dismiss the charges filed by the State of Delaware against the corporate entity Fantasia Restaurant Lounge, Inc. ("Fantasia"), David R. Lui and Jeffrey Lui (collectively "Defendants"). The charges arise out of alleged violations of 24 Del. C. Ch. 16, also known as the Adult Entertainment Establishments Act ("Act"). Fantasia is a bar and restaurant that offers live entertainment consisting of female dancers dressed in costumes covering only parts of their genitalia, breasts and buttocks.
The first motion is being resolved by virtue of an opinion and order being issued contemporaneously with the instant decision.
The stated purpose of the Act is to protect the "health, safety and welfare of the people of the State" from the "increasing incidence of the crimes of obscenity, prostitution and of offenses related thereto." The General Assembly found that these crimes were "principally facilitated by the widespread abuse of legitimate occupations and establishments, to wit, adult entertainment establishments." The General Assembly further found that the existing criminal laws were ineffective in quelling these crimes due to:
Id.
. . . the active concealment of the identities of the individuals who create, control and promote such businesses; by the failure of these individuals and businesses to exercise adequate control and supervision over the activities of their employees; and by the active promotion of prostitution and obscenity by these individuals and businesses for their own financial gain.
Id.
Under the Act, an "adult entertainment establishment" is defined as "any commercial establishment, business or service, or portion thereof, which offers . . . specific sexual activities." "Specific sexual activities" is defined to include "the fondling or erotic touching of human genitals, pubic region, buttocks or the female breasts." "Specific sexual activities" also includes the exhibition of "[l]ess than completely opaquely covered . . . buttocks [or] [f]emale breasts below the top of the areola." Any business operating as an adult entertainment establishment must first be issued a license by the Commission on Adult Entertainment Establishments. Where the ownership of the business is a corporation, the corporation itself, as well as its principal stockholders, board of directors, officers and persons engaged in the management of an adult entertainment establishment who operate such an establishment without a license are subject to criminal penalties.
24 Del. C. § (17)(d)(2) (3).
In order to obtain a license, such an establishment can only be located in certain areas and must comply with other conditions as set forth in the Act. The relevant language provides:
. . . [E]ach applicant or licensee seeking a license . . . must affirmatively establish within their application that the location or proposed location of the place of business is in compliance with all applicable laws and ordinances.
The Act further provides:
No new adult entertainment establishment . . . shall operate in the same building or in separate buildings less than 1,500 feet from each other, within 500 feet of any residence regardless of how such property is zoned, or within 2,800 feet from a church or school . . . Distance shall be measured from property line to property line.
24 Del. C. § 1610(c). Section § 1610(d) states:
Notwithstanding any provision of law to the contrary, no municipal corporation or county may adopt any ordinance or charter amendment with distance restrictions less than those provided in this section.
Based on the provisions of the Act referenced above, the State has deemed Fantasia to be an adult entertainment establishment and therefore subject to its provisions. The Act also subjects Fantasia to New Castle County's Unified Development Code ("Code") because the establishment is physically located in New Castle County. The Code has the same restrictions as to location and/or zoning as the Act. The only difference is that distances are determined by a straight line measurement from the nearest building setback line of the proposed establishment or from the building containing the adult entertainment use, to the property line of the protected use. As noted above, the same distance under the Act is measured from property line to property line.
It is undisputed that the dancers at Fantasia display their buttocks, although they do wear a thong, and their breast below the top of the areola. Customers are allowed to fondle and erotically touch the buttocks and breasts of the dancers.
New Castle County, Del., Zoning Code § 40-133(a)(13). This section states in relevant part:
Massage parlors which provide services on and/or off premises, adult bookstores and adult entertainment centers shall be permitted as follows:
(a) No such use shall be permitted within 500 feet of any property containing a dwelling or other residence located within any residentially zoned district.
(b) No such use shall be permitted within 2,800 feet of a school, church or other place of worship.
(c) No such use shall be permitted within 1,500 feet of each other.
Fantasia Restaurant Lounge v. New Castle County Bd. of Adjustment, 735 A.2d 424, 433 (Del.Super.Ct. 1998).
In 1996, Defendants submitted a request to the New Castle County Department of Planning for certification that the property that Fantasia is currently located on complied with the applicable zoning restrictions. The Department initially granted the certification, but upon further investigation, revoked that certification and refused to grant a license to Fantasia because it is located within 2,800 feet of a church. Specifically, it was determined that Fantasia is located within 2,800 feet of the Church of the Living Word which is situated at 815 South Heald Street in Wilmington, using either a straight line measurement under the Act or that imposed via the Code.
Defendants state in their opening brief that "the two parcels are separated from one another by a four lane divided highway (Route 13), commercial warehouse facilities, an area devoted to outdoor storage of concrete pipe, a large open body of water surrounded by marshland, a borrow of gravel pit, more commercial warehouses and a wholesale beverage distribution facility." Defendants Opening Brief at 3. However, the Defendants admit that under a straight line measurement, without regard to intervening natural or artificial obstructions, Fantasia does not meet the zoning requirements of either the Act or the Code.
That decision was affirmed by this Court in Fantasia Restaurant Lounge v. New Castle County Board of Adjustment. Because Fantasia continued to operate and had not been issued a license by the Commission, the State indicted the Defendants for operating an adult entertainment establishment without the required license. In addition, David Lui and Jeffrey Lui were indicted for engaging in a conspiracy to operate such an establishment without a license.
On July 10, 2003, the Defendants filed the instant motion to dismiss the aforementioned indictments. The parties subsequently entered into a briefing schedule which was completed October 20, 2003. Oral argument was held on December 2, 2003. Three arguments were advanced in support of their motion.
First, the Defendants contend that the non-obscene live nude dancing presented as entertainment at Fantasia is protected by the First Amendment's guarantee of freedom of speech. The State does not dispute this argument. As a result, no further discussion on this issue is needed.
Second, Defendants argue that the Act does not contain any reference to the government interest which necessitated the adoption of the restrictions as to the location of adult entertainment establishments. Because the State has not justified these restrictions, they are presumptively unconstitutional. The State responds that the justification for the restrictions about which the Defendants complain are the pernicious secondary effects ( i.e., prostitution, obscenity, sexual assault, and related offenses) of adult entertainment establishments like Fantasia. The legislation makes specific reference to that end, which the courts have held is legally sufficient. The State goes on to argue that these secondary effects "are so well-known as to eliminate the requirement that legislative bodies, like the General Assembly in this instance, articulate new and specific legislative findings to sustain laws designed to diminish or eliminate such recognized problems of national concern."
See 24 Del. C. § 1601(a); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Amico v. New Castle County, 101 F.R.D. 472 (D. Del. 1984).
State's Answering Brief at 2. In Amico, the United States District Court for the District of Delaware upheld the New Castle County's reliance upon findings of other legislative bodies and its own previous findings/studies, to support the conclusion that the church/school requirement was constitutionally permissible. No further studies were necessary.Amico, 101 F.R.D. at 487-88.
The Defendants' third argument, which is the primary focus of their challenge, is that the restrictions at issue effectively deny adequate alternative avenues of communication for the presentation of adult entertainment. They do not now argue that there are no such sites available, only their inadequacy. Indeed, based upon the evidence presented by the State, the Defendants acknowledged for present purposes, the existence of 14 parcels of land which would pass muster as adult entertainment establishments under the Act and the Code. The State contends that there are a total of 28 such sites. As a consequence, the State urges this Court to conclude that the legislative pronouncements in question do not unconstitutionally restrict the avenues of communication available to adult entertainment establishments in New Castle County.
The following is the Court's response to the issues so presented.
DISCUSSION
The record supports the conclusion that Fantasia is an adult entertainment establishment as defined by 24 Del. C. § 1602(2) for at least two reasons. First, there is no dispute regarding the fact that the entertainment provided at Fantasia features female dancers whose buttocks and breasts below the top of the areola were "less than completely opaquely covered." Second, the establishment permits the fondling and erotic touching of the buttocks and breasts of those individuals so employed. Consequently, Fantasia is subject to regulation under the Act in order to operate in this state. Stated differently, Fantasia must obtain a license to continue to offer "adult entertainment" at its present location.
See 24 Del. C. § 1602(17(d).
See 24 Del. C. § 1606(a).
See 24 Del. C. § 1610(c); New Castle County, Del., Zoning Code § 40-133(a)(13).
The First Amendment, upon which the Defendants' challenge to the Act is principally based, is made applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment. The Supreme Court has afforded First Amendment protection to sexually explicit non-obscene films, printed matter and live presentations, including the kind alleged to have taken place at Fantasia. However, it should be noted that the activity at issue in this case, while protected, "falls within the outer ambit of the First Amendment's protection."
Young v. American Mini Theatres, Inc., 427 U.S. 50, 52 (1976).
See generally Barnes, 501 U.S. at 565-66 (live nude dancing in adult bookstore and nightclub; Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (live nude dancer in adult bookstore).
City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000).
The Supreme Court's decision in Renton v. Playtime Theatres, Inc. and the decisions by the various United States Courts of Appeals applying Renton largely dictate the resolution of this case. Under Renton, reasonable time, place, and manner regulations of protected speech are valid if: (1) they are justified without reference to the content of the regulated speech ("content neutrality"); (2) they are narrowly tailored to serve a substantial government interest; and (3) they leave open adequate alternative avenues of communication. The restrictions in the Act and the Code, like those in Renton, do not ban adult entertainment establishments completely, but merely regulate the location of such businesses. The Act and Code are therefore properly analyzed as a form of time, place, and manner regulation. Content Neutrality
475 U.S. 41 (1985).
See e.g. Woodall v. City of El Paso, 49 F.3d 1120 (5th Cir. 1995).
Renton, 475 U.S. at 46-47; Mitchell v. Commission on Adult Entertainment Establishments of Delaware, 10 F.3d 123, 130-31 (3rd Cir. 1993).
Renton, 475 U.S. at 46. It is important to note that the State argues that the 2,800 foot requirement in the Code has already been approved by Judge Wright in Amico, 101 F.R.D. 472. However, in that case, the plaintiff argued that the 2,800 foot requirement was unconstitutional because it violated the equal protection clause, the establishment clause, and the due process clause. Therefore, the State cannot use Amico as a defense to a constitutional challenge based on a failure to leave open adequate alternative avenues of communication for the presentation of adult entertainment.
"The principal inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Content neutral speech regulations must be "justified without reference to the content of the regulated speech." As stated above, the Act and Code, like the ordinance in Renton, do not ban adult entertainment establishments altogether. They merely ban such establishments from some parts of the state and county based upon location.
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295 (1984)).
Renton, 475 U.S. at 48 (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771).
The Defendants argue that based on the text of 24 Del. C. § 1610(c) and (d), the government interests which necessitated the adoption of the geographical restrictions are not apparent, and that the Act is constitutionally infirm as a result. The State responds that the Act was designed to adopt New Castle County's spacing requirements as the statewide standard. It also contends that the Act was enacted to protect the health, safety and welfare of the people of the State from the crimes of obscenity, prostitution, sexual assault, and related offenses, which are the pernicious secondary effects of adult entertainment establishments.
See 24 Del. § 1601; Barnes, 501 U.S. 560; Amico, 101 F.R.D. 427.
The 2,800 foot restriction from churches and schools is particularly aimed at protecting those of tender age and/or seeking spiritual guidance from exposure to the negative effects of adult entertainment establishments. The Supreme Court has stated that zoning laws may be legitimately used to regulate the environment in the vicinity of schools and churches, given the valid interest schools and churches have in being insulated from certain kinds of commercial establishments. "Therefore, there can be little doubt that imposition of a distance requirement protecting [the citizenry] and churches from the negative effects of adult entertainment . . . [establishments] is a rational exercise of the . . . [State's] zoning power."
Larkin v. Grendel's Den, Inc., 459 U.S. 116, 121 (1982).
Amico, 101 F.R.D. at 493.
It is important to note that the United States Supreme Court further held in Renton that a city enacting an adult theatre zoning ordinance is entitled to rely on the experiences, evidence, and studies of other cities enacting similar ordinances. "In so holding, the Supreme Court specifically rejected the idea that the government need produce its own studies or independent evidence to justify its conclusions." In the instant case, it is clear that the General Assembly adopted the 2,800 foot restriction for the reason stated above. It is equally apparent that the State is permitted to rely on the findings by the court in Amico regarding the protection to be so afforded from the anticipated harmful effects of adult entertainment establishments and/or businesses. Therefore, the Defendants' argument that the State needed to conduct its own studies on the secondary effects of adult entertainment is without merit. The only viable conclusion which can therefore result is that the Act generally and the location restrictions specifically, are content neutral.
Renton, 475 U.S. at 51-52.
Mitchell, 10 F.3d at 132.
Narrowly Tailored to Serve Substantial Government Interest 1. Substantial Government Interest
The Court has already recognized the substantial government interest inherent in the 2,800 foot restriction from churches and schools in Fantasia Restaurant Lounge v. New Castle County Bd. of Adjustment. The Court stated:
Many children living within a half mile of schools and churches walk to school and Sunday school, often unaccompanied by their parents. Even those children who are bussed or driven to school or church risk exposure to the adverse effects of an adult entertainment center if such uses are permitted within a half mile of schools and churches since many schools and Sunday schools have recess or study periods during which children are unsupervised. It is clear that when drafting the zoning ordinance, the New Castle County Council decided to create adequate geographic delineations between adult entertainment centers and schools, churches, and places of religious worship.
Fantasia, 735 A.2d at 432 (citing and discussing Amico, 101 F.R.D. 472).
Accordingly, the Court must conclude that there is sufficient evidence to show that the State had a substantial government interest in regulating the negative secondary effects of Fantasia's speech-related activity. The State's decision to impose the restrictions in question was for that purpose. It was not for the purpose of regulating the content of the sexually expressive activity Fantasia displays.
2. Narrowly Tailored Requirement
Content neutral time, place, and manner restrictions are narrowly tailored "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Also, "when the potential for overbreadth burdens a category of speech, such as sexually-oriented expression, that enjoys less than the full First Amendment protection afforded to political debate, the cloth need not be cut quite so close." But, "the legislative cloak must be fitted so as to `affect only that category of [adult entertainment establishments] shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad [ 452 U.S. at 63, 101 S.Ct. at 2179-80] and Erznoznik [ 422 U.S. at 213-14, 95 S.Ct. at 2274-75]." Both Renton and Mitchell indicate that a state legislature considering a statute designed to regulate the negative secondary effects of marginally protected expressive activity does not need to survey and evaluate every adult entertainment establishment in the state to determine the effect the regulation will have on them. The State needs to only show that adult entertainment establishments, as a class, cause the unwanted secondary effects the statute regulates. In Amico, the court determined that adult entertainment establishments, as a class, caused the negative secondary effects that the Act and Code seek to protect. The New Castle County Council established the factual base of evidence that the court in Amico relied upon to uphold the constitutionality of the County's identical 2,800 foot restriction. The State's General Assembly is entitled to rely on the findings made on behalf of New Castle County in that regard. Therefore, the Act and Code satisfy the narrowly tailored requirement.
Ward, 491 U.S. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
Mitchell, 10 F.3d at 137.
Id. at 137; Renton, 475 U.S. at 52.
Mitchell, 10 F.3d at 138; see Renton, 475 U.S. at 52 (legislative restriction must be designed "to affect only the category of theatres shown to produce the unwanted secondary effects").
Mitchell, 10 F.3d 138.
Amico, 101 F.R.D. at 486-88 (". . . [New Castle County] Council's evidence of adverse effects of adult entertainment centers, combined with its apparent recognition that exposure to these effects would be detrimental to the well-being of local children, provides a sufficient factual basis for its conclusion that adult entertainment centers should be located away from schools and churches." Id. at 487 n. 22).
Id.; see Genusa v. City of Peoria, 619 F.2d 1203, 1211 (7th Cir. 1980) (". . . a city need not await deterioration in order to act. A legislative body is entitled to rely on the experience and findings of other legislative bodies as a basis for action.").
3. Adequate Alternative Avenues of Communication
The Defendants' primary argument in support of their motion is centered on this third prong of the Renton test, i.e., whether there are adequate alternative avenues of communication available notwithstanding the statutorily imposed restriction.
"In Renton, the Supreme Court set out two principles that infuse successive cases dealing with zoning ordinances restricting permissible locations of adult business: (1) the ordinances must allow for reasonable alternative avenues of communication and (2) commercial viability is not a factor." However, Renton did not announce a test or rules for determining whether land is "available" to adult business for First Amendment purposes. This Court finds the general rules announced in Vincent v. Broward County to be helpful on this issue. In that case the United States Court of Appeals for the Eleventh Circuit stated:
Woodall, 49 F.3d at 1124; Renton, 475 U.S. at 54.
200 F.3d 1325, 1334-35 (11th Cir. 2000).
First, the economic feasibility of relocating to a site is not a First Amendment concern. Second, the fact that some development is required before a site can accommodate an adult business does not mean that the land is, per se, unavailable for First Amendment purposes. The ideal lot is often not to be found. Examples of impediments to the relocation of an adult business that may not be of a constitutional magnitude include having to build a new facility instead of moving into an existing building; having to clean up waste or landscape a site; bearing the costs of generally applicable lighting, parking, or green space requirements; making due with less space than one desired; or having to purchase a larger lot than one needs. Third, the First Amendment is not concerned with restraints that are not imposed by the government itself or the physical characteristics of the sites designated for adult use by the zoning ordinance. It is of no import under Renton that the real estate market may be tight and site currently unavailable for sale or lease, or that property owners may be reluctant to sell to an adult venue.
Id.
Based on the evidence submitted in their briefs and at the hearing, the Defendants acknowledge that there are fourteen (14) potential adult use locations available in New Castle that satisfy the geographical restrictions. The State contends that there are twenty-eight (28) sites available for adult entertainment establishments within the geographical bounds of the county. In acknowledging that fourteen sites exist, the Defendants do not raise any arguments regarding the physical aspects of the sites or any possible legal restrictions that may render some of the sites "unavailable" for First Amendment purposes. Therefore, the Court must conclude that there are at least fourteen sites "physically" and "legally" available in New Castle County for an adult entertainment establishment, and will proceed with the analysis on that basis.
The final, and most important, issue to decide is whether the number of alternative sites available in New Castle County for use as an adult entertainment establishment is sufficient for First Amendment purposes. It appears that neither the United States Supreme Court nor any lower court, federal or state, has established a rigid test for determining whether zoning laws leave open adequate opportunities for communication. However, the Court has noted that because "the scope of relevant zoning authority varies widely across our country, as do geographic configurations and types of commerce among neighboring communities, this issue will doubtless be resolved on a case-by-case basis."
Schad, 452 U.S. at 78-79 (Blackmun, J., concurring); see Vincent, 200 F.3d at 1336.
Most courts have employed one of two methods: (1) the percentage of land within the city or county available to adult businesses; or (2) the number of sites compared with the number of adult businesses currently in existence or seeking to open. Where a zoning ordinance imposes distance requirements between adult businesses, between adult businesses and residences, and between adult businesses and churches or schools, most courts have compared the number of sites in the relevant area that could exist simultaneously with the number of adult businesses currently in existence or seeking to open.
Diamond v. City of Taft, 215 F.3d 1052, 1056-57 (9th Cir. 2000).
Id. (holding seven sites was constitutionally sufficient when only one adult business was seeking to open); Buzzetti v. City of New York, 140 F.3d 134, 141 (2nd Cir. 1998) (holding that the ordinance allowed for the operation of 500 adult establishments in the city which was sufficient for the 177 adult establishments operating in the city); Allno Enterprises, Inc. v. Baltimore County, 2001 U.S. App. LEXIS 11522, *13 (4th Cir. 2001) (holding that because there were eleven sites available, it is clear that the three adult businesses have more than adequate alternative avenues of communication); Woodall, 49 F.3d at 1127 (holding that 56 sites being available for 22 adult businesses was sufficient); Vincent, 200 F.3d at 1336 (holding that the number of sites available was greater than the number of adult businesses).
The most prevalent holding among the U.S. Circuit Courts of Appeal is that the availability of just one more site than the existing number of adult entertainment businesses seeking to open an adult entertainment establishment satisfies a county, city, or state's obligation to provide adequate alternative avenues of communication. In the absence of any authority to the contrary, or otherwise controlling, the Court will adopt this approach.
N.W. Enters v. City of Houston, 352 F.3d 162, 182 (5th Cir. 2003) (citing Woodall, 49 F.3d at 1127).
Turning to the facts of this case, of the fourteen sites the Defendants acknowledge as available, two already contain operating adult entertainment businesses. As a result, there are twelve sites remaining. Given the approach adopted by this Court, the availability of twelve sites is constitutionally sufficient for purposes of the First Amendment. To be even more precise, twelve available sites for one adult business does not constitute an effective denial of Defendants' right to a reasonable opportunity to open and operate an adult entertainment establishment in New Castle County, Delaware.
Id.
Renton, 475 U.S. at 54.
The Defendants have argued that the test that should be applied for determining whether there are a sufficient number of alternative sites is the percentage of land within the relevant area available to adult businesses. Using even the most generous numbers offered by the State, less than one percent of the total land area in New Castle County is available for adult entertainment purposes. The Defendants assert that this is far less than the proportions found to be satisfactory by the Supreme Court in Renton, and cite cases in support of their position. However, the Defendants do not suggest what percentage of the total should be available or how that amount should be determined in light of the interests the State is seeking to protect. The record is also devoid of any evidence which could suggest what percentage of the total land in New Castle County is needed to provide adequate alternatives for the kind of speech which the Defendants seek to advance.
475 U.S. at 53 (finding that the city's ordinance left some 520 acres, or more than five percent of the entire land area of the city, open to use as adult theater sites).
See e.g. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993) (Only 0.18% of the available land for adult uses was in a commercial zone).
Lastly, the Defendants' argue that an important factor in determining the constitutionality of the restrictions is the ratio of available sites per New Castle County's population. Using the most generous numbers in the State's favor, at best there is one site for every 9,941 people. Again, the Defendants do not suggest what the ratio should be and/or how it should be determined. And again, the record is otherwise silent regarding the number of adult entertainment sites which are necessary, given the population of New Castle County. In any event, the Court is not persuaded that this factor is of significance in determining whether the Act violates the Defendants' rights under the First Amendment.
As already stated, the Court believes that the appropriate method for determining whether there are a sufficient number of alternative sites is comparing the number of sites available with the number of adult businesses currently in existence or seeking to open. Given the information or lack thereof, available to the Court in this regard, no other conclusion can be realistically supported. To the extent that the cases cited by the Defendants contain holdings that might allow one to draw a contrary inference, this Court declines to adopt such an approach for the reasons stated above.
CONCLUSION
For the aforementioned reasons, the Defendants' motion to dismiss the charges lodged against them on grounds that the location/zoning restrictions of the Adult Entertainment Act unconstitutionally infringed upon their rights under the First Amendment, must be, and hereby is, denied.