11th Circuit: Internet Porn Dorm Is "Business" In A Residential Zone

Most municipal zoning codes prohibit the operation of a "business" in a residential zone. Does this mean you can't have a "home office" or take work-related calls at home? In most circumstances, doing so does not run afoul of the zoning code if the primary use of the home remains a dwelling house, and the business-like activities are incidental and subordinate to the residential purposes. Zoning codes are not meant to control every aspect of life, nor can they legally or practically.

The Miami zoning code allows "home occupations" provided they are not conducted by more than three people, and they are limited to certain occupations (architect, lawyer, real estate broker, for example). According to a new case from the U.S. Court of Appeals for the Eleventh Circuit, a "voyeur dorm" isn't among the permitted uses of a residence. Flava Works, Inc. v. City of Miami, No. 09-11264 (June 25, 2010)

Rather than try to paraphrase the court's description of the operation, it's probably better than we quote it:

Flava Works, Inc. is a Florida corporation doing business as CocoDorm.com, which operates an internet-based website of the same name. The CocoDorm website transmits images, via webcam, of the residents of 503 Northeast 27th Street, Miami, Florida, over the internet. This residence, which is zoned multifamily high-density residential (R-4), is owned by Angel Barrios and leased to Flava Works, Inc. The persons residing at the 27th Street residence are independent contractors of Flava Works, and, in exchange for $1,200 per month plus free room and board, are expected to engage in sexual relations which are captured by the webcams located throughout the house. Individual subscribers pay Flava Works, through the CocoDorm website, for access to live or recorded video feeds, including sexually explicit conduct, from the webcams in the 27th Street residence.

Flava Works’s principal place of business, as designated with the Florida Secretary of State, is 2610 North Miami Avenue, where the accounting and financial aspects of the business are conducted. Flava Works holds city and county occupational licenses to operate a video and graphics business at this address. In addition to distributing digital content through the internet, Flava Works distributes physical media, such as videos and magazines, to locations around the world. The computer servers, which house the digital content and provide access to the CocoDorm website, are not located at either the 27th Street residence or the Miami Avenue office.

Flava Works does not disclose the location of the 27th Street residence on its website or in any of its videos or magazines. None of the webcams are located outside of the residence and no external images of the home are broadcast over the internet. Neither customers nor vendors ever physically go to the 27th Street residence.

Slip op. at 2-4.

Oh my.

The city issued a notice of violation, Flava appealed to the Code Enforcement Board. After hearings, it found Flava guilty. Flava sued in the federal court.

How'd a zoning enforcement action get into federal court, you ask? According to the boilerplate, federal courts don't like being though of as zoning boards of appeals.See, e.g., RRI Realty Corp. v. Incorporated Village of Southampton, 870 F.2d 911, 918 (2d Cir.1989). The 11th Circuit's opinion does not detail the allegations of the complaint other than "constitutional claims." but presumably the court was satisfied the federal claims were present. The district court exercised supplemental jurisdiction over a state law claim (called "certiorari" under Florida procedures; this seems like a process similar to a writ of administrative mandate or administrative appeal in other jurisdictions), and refused to abstain. The district court concluded the porn dorm was not a "business," relying on Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001). That case concluded that a nearly identical operation was not an "adult entertainment establishment." If a porn dorm is not an "adult entertainment establishment," how can it be a business?

On appeal, the 11th Circuit disagreed that Voyeur Dorm was applicable. See slip op. at 12-13 ("Furthermore, Voyeur Dorm did not hold that the Tampa residence was not a business, it merely held that the residence was not an adult business establishment (where there was no public offering of adult entertainment), which is a much narrower conclusion. We agree with Flava Works that an adult business is always a business. However, the opposite is not necessarily true. The vast majority of businesses are not adult businesses but are nevertheless prohibited within residential zones.") (emphasis original).

Finally, the court concluded that Flava did not operate an allowable "home occupation" and that the porn dorm was a "clear violation" of the zoning code's prohibition of operating a business in a residential zone. Slip op. a 14. The court set out two reasons:

• The 27th Street activities are "part and parcel" of Flava's business. "Business objectives are the sole reason individuals are paid to live and engage in sexual activities at the 27th Street residence."  

• The "raw video images" later sold over the internet were created at the residence.

An interesting decision for sure, but one we're going to classify as "TMI." Note: this case and the Voyeur Dorm case were the subject of a presentation at the ABA State and Local Government Law Section's Spring Meeting in Miami. That session is available on audio CD from the ABA here.