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Voyeur Dorm, L.C., Entertainment Network, Inc., Dan Marshlack and Sharon Gold Marshlack v. City of Tampa, Florida

Plaintiffs operate the Voyeurdorm.com web site, at which subscribers, for a price, can view the activities of five women in a house located in Tampa, Florida, including those that occur in bedrooms, bathrooms and showers. Reversing the decision of the District Court, the United States Court of Appeals for the Eleventh Circuit held that plaintiffs' operation of this web site does not constitute a violation of the Tampa City Code, which prohibits the operation of an adult entertainment establishment in the residential neighborhood in which the house at which plaintiffs' filming activities took place is located.

Plaintiff Voyeur Dorm, L.C. operated a subscription web site at voyeurdorm.com. At this site subscribers, for a fee, can view over the Internet the activities of five women in a house located in a residential section of Tampa, Florida. These activities include those that occur in the bedrooms, bathrooms and showers located in the house. Advertisements for the site state that "the girls of Voyeur Dorm are fresh, naturally erotic and as young as 18. Catch them in the most intimate acts of youthful indiscretion."

For an additional fee, subscribers can chat on line with the girls living in the house. Voyeur Dorm has employed between 25 and 30 girls to work at this house, most of whom signed a contract which stated that they were "employees" on a "stage and filming location" with no reasonable expectation of privacy for entertainment purposes.

The District Court found that plaintiffs' activities ran afoul of Tampa's zoning ordinances, which prohibit plaintiffs from operating an "adult entertainment establishment" in the residential neighborhood in question. Finding that plaintiffs did not operate an adult entertainment establishment in the geographical area covered by the applicable zoning regulations, the Eleventh Circuit reversed and held that plaintiffs' activities did not run afoul of the Tampa zoning ordinances at issue.

Section 27-523 of the Tampa City Code defined an "adult entertainment establishment" as "any premises ….on which is offered to members of the public … for a consideration entertainment featuring or in any way including specified sexual activities…". "Entertainment" was defined to include films, photographs and other performances distinguish by their display of specified anatomical areas or specified sexual activities.

The Eleventh Circuit held that for an establishment to be an "adult entertainment establishment" within the meaning of the code, members of the public must actually be physically present at the establishment when the adult entertainment is displayed. Because the public was not physically at the residence in question, but rather viewed the performance over the Internet, the location was not an "adult entertainment establishment" within the meaning of the zoning regulations, and hence not prohibited by it. Said the Court:

In opposition, Voyeur Dorm argues that it is not an adult use business. Specifically, Voyeur Dorm contends that Section 27-523 applies to locations or premises wherein adult entertainment is actually offered to the public. Because the public does not, indeed cannot, physically attend 2312 West Farwell Drive to enjoy the adult entertainment, 2312 West Farwell Drive does not fall within the purview of Tampa's zoning ordinance. We agree with this argument.

The residence of 2312 West Farwell Drive provides no "offer[ing] [of adult entertainment] to members of the public." 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. As a practical matter, zoning restrictions are indelibly anchored in particular geographic location.

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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".