London v. Zoning Bd. of Phila., 173 A.3d 847 (Pa. Commw. Ct. 2017)

Legislation is presumed to be constitutional, therefore, constitutional challengers must overcome a heavy burden to prevail. A challenged provision is invalid, as being overbroad, if it prohibits a substantial amount of protected speech. Provisions are only void for vagueness if “persons of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.”
Case Details:

Applicant sought a zoning registration permit from the City of Philadelphia’s Department of Licenses and Inspections (L&I) to run an adult cabaret in an existing bar and restaurant establishment. The property was in a Neighborhood Commercial Mixed-Use Zoning District. L&I sent Applicant a Notice of Refusal on the grounds that operation of an adult cabaret is not permitted in the relevant zoning district. Further, the proposed use is not permitted within 500 feet of residential homes or any protected use. Applicant filed an appeal with the Philadelphia Zoning Board of Adjustment (ZBA) and sought a variance. The ZBA affirmed L&I’s decision and denied the request for a variance, as did the trial court on further appeal. Applicant then appealed to the Commonwealth Court which affirmed the trial court’s decision but remanded on the Applicant’s constitutional arguments. On remand, the trial court rejected Applicant’s constitutional challenges. Applicant appealed once more to the Commonwealth Court, arguing the provision of the ordinance that defines “adult cabaret” was overbroad and vague and, therefore, unconstitutional.

The Commonwealth Court held the challenged provision was neither overbroad nor vague. In order for a statute to be deemed overbroad, it must “prohibit[] a substantial amount of protected speech . . ., not only in an absolute sense but also relative to the statute’s plainly legitimate sweep.” Applicant argued the provision was overbroad because it reached beyond its legitimate sweep in that it applied not only to nude dancing, but to performances such as plays or musicals—which have full constitutional protections. However, the Court held the provision, which defined the banned activity as “‘male or female impersonators or similar entertainers who act, dance, or perform in an ‘exciting’ or ‘stimulating’ manner,” when read in its entirety, only restricted performances of this nature that are sexually charged. Therefore, the language did not limit a substantial amount of protected speech and was not overbroad. In response to Applicant’s vagueness argument, the Court noted that laws are only void for vagueness when “persons of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” For the same reasons the statute could not be considered overbroad, it could not be considered vague. When read in its entire context, the Court determined the provision clearly was limiting performances of a sexual nature, only.

Date of Decision: 11/15/17

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