BY CYNTHIA CONLIN, ESQ.
The U.S. Court of Appeals for the Eleventh Circuit decided last week that Flava Works Inc., a company selling sexual images filmed in a house in Miami, had violated city zoning laws by “illegally operating a business in a residential zone.”
The case, Flava Works Inc. v. City of Miami, originated in 2007 when the City issued a zoning violation, then order, against Flava Works. Although Flava Works used an off-site location for its general office work, it also maintained a residential house, the “CocoDorm,” and paid independent contractors $1,200.00 a month plus room and board to “engage in sexual relations which are captured by the webcams located throughout the house.”
The City found that the CocoDorm violated two City Codes: (1) “adult entertainment not permitted in C-1 zone property” and (2) “illegally operating a business in a residential zone.”
Flava Works appealed the order to the Southern District of Florida and, at the District Court level, won. The District Court pointed to a 2001 case, Voyeur Dorm, L.C. v. City of Tampa, that it found controlling. The “materially indistinguishable” facts of the Voyeur Dorm case included a house of women who disrobed and performed “intimate” acts on webcam in exchange for rent and payment. The Eleventh Circuit held that the Tampa “adult entertainment” ordinance at issue did not apply to the Voyeur Dorm because customers were never physically invited to the house, and the Voyeur Dorm only offered entertainment “over the Internet in ‘virtual space.’”
The City of Miami appealed the District Court’s decision and argued that, although the Voyeur Dorm decision may be controlling as it pertains to application of one of the zoning ordinances (specifically, the one prohibiting “adult entertainment” in C-1 zone property), it could not pertain to whether Flava Works had violated the other zoning ordinance: “illegally operating a business in a residential zone.”
Flava Works argued no actual “business” was conducted at the CocoDorm, as “no goods were bought or sold and nothing was manufactured” there, and all commercial transactions took place at a separate office, and that the second ordinance could not apply either.
Disagreeing with Flava Works, the Eleventh Circuit Court of Appeals said, “it can be reasonably asserted that raw video images, which were later sold over the internet, were created” at the CocoDorm. “While these images are not tangible goods, they have a commercial value and enable Flava Works to earn a profit.” Furthermore, the activities at the CocoDorm are “part and parcel to Flava Works’s business operation,” and “the sole reason individuals are paid to live and engage in sexual activities” is business.
The Court also looked at the zoning ordinance in question, which includes specific exceptions “for a variety of home occupations,” such as “architect, broker, or lawyer.” Unfortunately for the operators of the CocoDorm, there was no exception for adult etertainers.
The Court concluded that Flava Works and the CocoDorm were “in clear violation” of operating a business in a residential zone.
(Download a PDF of the Court’s opinion here.)
If you have questions or comments about this blog article or other related issues in Internet Law or Business Law, feel free to email Attorney Cynthia Conlin at cconlin@cplspa.com.