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Just when it seems that the legal distinctions between real world conduct and actions in cyberspace are becoming completely blurred, a federal appellate court issues a decision that clearly distinguishes between what is “real” and what is online. Last week, the 11th U.S. Circuit Court of Appeals in Voyeur Dorm v. City of Tampaconcluded that the operation of a business that offers online voyeurism does not violate zoning restrictions because the voyeurs are not physically present in the community in question. The court’s decision defeated the City of Tampa’s several-year effort to shut down “Voyeur Dorm” for running what the city argued is an “adult entertainment” operation in a local residence, and enabled Voyeur Dorm to continue its multi-million dollar business. VOYEUR DORM Voyeur Dorm is a Florida company that maintains offices and conducts its business in Hillsborough County, Florida. Voyeur Dorm operates a Web site that provides a 24 hour a day transmission portraying the lives of the residents of 2312 West Farwell Drive, Tampa, Florida. Voyeur Dorm has employed 25 to 30 different women, most of whom entered into a contract that specifies that they are “employees,” on a “stage and filming location,” with “no reasonable expectation of privacy,” for “entertainment purposes.” Subscribers to voyeurdorm.com pay a subscription fee of $34.95 a month to watch the women at the premises and pay an added fee of $16.00 per month to “chat” with the women. From August 1998 to June 2000, Voyeur Dorm generated subscriptions and sales totaling approximately $3 million. CITY RULING In 1998, Voyeur Dorm learned that local law enforcement agencies had initiated an investigation into its business. In February of 1999, Tampa’s Zoning Coordinator issued her determination under the City Code. Before reaching her conclusion, the Coordinator noted that voyeurdorm.com shows various scenes from the house, including a woman with exposed buttocks, and that statements on the site describe activities that can be viewed, such as “the girls of Voyeur Dorm are fresh, naturally erotic and as young as 18,” and “catch them in the most intimate acts of youthful indiscretion.” The Coordinator also pointed out that the name of the Web site is advertising the adult nature of the entertainment, as “voyeur” is defined in the American Heritage Dictionary, Second College Edition as “a person who derives sexual gratification from observing the sex organs or sexual acts of others, especially from a secret vantage point.” The Coordinator then determined that “the use occurring at 2312 W. Farwell Dr. … is an adult use,” as Section 27-523 of the City Code defines adult entertainment as including “entertainment featuring or in any way including specified sexual activities, as defined in this section, or entertainment featuring the displaying or depicting of specified anatomical areas, as defined in this section.” Accordingly, the Coordinator concluded that “the property is zoned RS-60 Residential Single Family, and an adult use business is not permitted use.” FURTHER LEGAL PROCEEDINGS Thereafter, in April of 1999, the Variance Review Board upheld the Coordinator’s determination, finding that an adult use was being made of the property because: five women live in the house; there are cameras in the corners of all the rooms of the house; for a fee a person can obtain a Web site membership and can view the women 24 hours a day, seven days a week; at times, members can see someone disrobed; the women receive free room and board; and the women are part of a business enterprise for which they are paid. Subsequently, the City Counsel affirmed the decision of the Variance Review Board. The owners of Voyeur Dorm then filed a federal lawsuit, but the trial judge dismissed the case. An appeal to a federal appellate court followed. THE APPEAL The City of Tampa argued on appeal that Voyeur Dorm is an adult use business pursuant to Section 27-523 of the City Code and, as such, cannot operate in a residential neighborhood. The City specifically noted that: members of the public pay to watch women employed on the premises; the employment agreement refers to the premises as “a stage and filming location;” certain anatomical areas and sexual activities are displayed for entertainment; and the entertainers are paid. Significantly, the City asserted that nothing in the City Code limits its applicability to premises where the adult entertainment is actually viewed. Voyeur Dorm argued in opposition that it is not an adult use business. Specifically, Voyeur Dorm asserted that Section 27-523 applies to locations or premises where adult entertainment is actually offered to the public. Because the public does not physically attend 2312 West Farwell Drive to enjoy the adult entertainment, Voyeur Dorm argued that 2312 West Farwell Drive does not fall within the purview of Tampa’s zoning ordinance. The appellate court ultimately agreed with this argument. THE APPELLATE DECISION In rendering its decision, the appellate court pointed out that the residence of 2312 West Farwell Drive provides no “offer[ing] [of adult entertainment] to members of the public.” Indeed, the offering occurs “when the videotaped images are dispersed over the Internet and into the public eye for consumption.” According to the court, “the City Code cannot be applied to a location that does not, itself, offer adult entertainment to the public,” because “zoning restrictions are indelibly anchored in particular geographic locations.” The appellate court summed up that “it does not follow … that a zoning ordinancedesigned to restrict facilities that offer adult entertainment can be applied to a particular location that does not, at that location, offer adult entertainment,” such as “here, [where] 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.” Thus City Code Section 27-523 does not apply because “the public offering occurs over the Internet in ‘virtual space.’” PARTING WORDS Voyeur Dorm dodged a bullet simply because the viewers of its adult-oriented entertainment are not physically present where the adult entertainment is actually happening. Perhaps this law really requires “two to tango” — entertainers and viewers — in the same physical vicinity before community sensibilities are triggered under the law. We shall see whether other such legal distinctions are made between real world and online conduct. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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