October 5, 2001

Florida Community Can't Shut Down 'Voyeur Dorm'

By CARL S. KAPLAN

For years cities and towns have been able to rely on zoning laws to keep adult entertainment businesses -- and their patrons -- far away from town residential areas. But what happens when an R-rated business's clients never set foot on its premises and instead pay for and view sexual fare on home computers via the Internet?

That's the situation facing some frustrated municipal officials in Florida, who for three years have tried to relocate a company that operates an apparently irrepressible Web site called "Voyeur Dorm" out of a house it owns in an upscale neighborhood in Tampa. The dwelling contains several college-age female residents and dozens of live Web cams that transmit unvarnished images 24 hours a day to tens of thousands of subscribers.

Recently, a federal appeals court handed Tampa a major setback in its quest to shutter the notorious house at 2312 West Farwell Drive. In what some lawyers believe is the first appellate opinion to address the nettlesome issue of residential zoning and Internet pornography, the United States Court of Appeals for the Eleventh Circuit in Atlanta ruled that Tampa's anti-adult business zoning ordinance does not apply to Voyeur Dorm.

The decision, issued on September 21, is likely to make it exceedingly difficult for local governments to use zoning laws to root out Internet-based adult businesses that are located in residential areas, lawyers said. The opinion is also notable because it suggested that the Internet is a place that, in some cases, may be beyond the reach of local government regulators.

In its six-page ruling, the appeals court reckoned that although the Voyeur Dorm house and its paid coeds exist on West Farwell Drive, no sexual entertainment is "offered" to the public at that particular location, as the Tampa statute stipulates. Rather, the court said, the sexually-themed images are transmitted, displayed and consumed somewhere else: cyberspace.

"The residence of 2312 West Farwell Drive provides no 'offer[ing] [of adult entertainment] to members of the public,'" wrote Judge Joel F. Dubina a unanimous three-judge panel, referring to the zoning law's language. "The offering occurs when the videotaped images are dispersed over the Internet and into the public eye for consumption. The City Code cannot be applied to a location that does not, itself, offer adult entertainment to the public."

Later in the opinion, Judge Dubina said: "Here, the audience or consumers of the adult entertainment do not go to 2312 West Farwell Drive or congregate anywhere else in Tampa to enjoy the entertainment. Indeed, the public offering occurs over the Internet in 'virtual space.'"

Voyeur Dorm, owned by Florida-based Entertainment Network, Inc., which also operates two other voyeur sites on the Internet, Dude Dorm and Voyeur Casa, seems to be doing quite well despite some negative local publicity. According to Dan Marshlack, a co-founder of the parent company, Voyeur Dorm currently has 60,000 to 80,000 subscribers.

"I am ecstatic" over the ruling, Marshlack said in a telephone interview. He added that he believed that the appeals court, widely viewed in legal circles as socially conservative, got it "just right." "Nothing takes place in the house, everything takes place in a virtual place," he said.

James Palermo, city attorney for Tampa, did not immediately return phone calls asking for comment. Attorneys familiar with the case said that Tampa has an option to seek to appeal the decision to the entire Eleventh Circuit or ask the Supreme Court to hear the case.

Presumably, the city also may opt to rewrite its zoning code to specifically apply to adult entertainment facilities that transmit images to paying subscribers over the Internet. But it is not clear that such a tactic would survive a constitutional challenge, said Jonathan Weinberg, a professor who specializes in communications law at Wayne State University.

Non-obscene sexual material is protected by the First Amendment, explained Weinberg. Nevertheless, the Supreme Court has held that a city has authority to zone or displace an adult business, because it has an important interest in preventing so-called "secondary effects" on adjacent properties -- such as a decline in property values or an increase in crime.

Yet "those concerns are not implicated in this case," Weinberg said. Voyeur Dorm's business does not encourage "guys with bloodshot eyes to tromp around the suburbs of Tampa, looking for naked ladies," he said.

Indeed, without a reasonable showing that an Internet-based adult business causes harmful secondary effects to a particular neighborhood, it is doubtful whether courts will allow cities to use their zoning laws to go after the firms, even if the laws specifically applied to the Internet, said Weinberg. He said that the appeals court's ruling, in a footnote, made it "pretty clear" that Voyeur Dorm did not cause adverse effects to its neighborhood.

Weinberg said the same legal result would occur if a city sought to zone away a house in which residents took naked, non-obscene pictures of themselves and quietly sold the photos through the mail.

David Alan Wasserman, a lawyer in Winter Park, Florida, who represents what he termed "numerous" adult Web sites that feature similar voyeur-like Web cam operations, said the court's decision puts cities in a quandary. "The old school way to get rid of an adult business was to zone it, based on secondary effects," he said. "But that is not well-suited to the Internet."

The 6,000 square foot house where Voyeur Dorm is located contains six bedrooms, four baths, and a bricked-in outdoor pool, according to Marshlack. Six to eight college-age women live in the house, amid 75 hidden live video cameras. For a fee of $39.95 a month, subscribers to the Web site are invited, in the words of the site's come-on language, to spy on the women in "our bedrooms, sneak a peak at us in the bathroom or shower, gaze at us lounging by the pool topless and [for an additional monthly fee of $16] get to know us in our chat room which features sound!"

Beginning in 1998, Tampa officials sought to close down the house because it allegedly violated the city's zoning rule, Section 27-523, which largely prohibits in residential areas "any premises . . . on which is offered to members of the public . . . for consideration, entertainment featuring . . . specified sexual activities." Last year, a federal district court agreed with city officials that the house violated the zoning law. The appeals court reversed that decision.

Whatever the case's ultimate outcome, one legal observer said that the decision is also significant because a federal appeals court acknowledged that cyberspace is a community to itself.

"Look, the Eleventh Circuit recognized that there is another place out there that is not in Tampa, that is not anywhere, but is where these people are offering services," said David Post, a law professor at Temple University who specializes in Internet law. "The way the court talked is meaningful," he said, adding later: "It suggests that judges are wrestling with the idea that in some cases we are going to have to come up with new legal frameworks" to address cyberspace.


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