Ruling that Tampa’s zoning ordinance was misapplied when the U.S. District Court erroneously found that voyeurdorm.com offered adult entertainment to the public from a house in a residential zone, the United States Court of Appeals for the 11th Circuit reversed the decision.

Voyeurdorm.com operates an Internet based website that provides a 24-hour a day transmission portraying the lives of five “fresh, naturally erotic” women who live in a house with thirty cameras installed in various rooms, including the bedrooms, bathrooms, and at least one shower. Subscribers pay $34.95 a month to watch the women and to “catch them in the most intimate acts of youthful indiscretion,” as the website advertises. From August, 1998 through June, 2000, voyeurdorm.com generated subscriptions totaling over $3 Million Dollars.

Voyeur is defined in the American Heritage Dictionary, 2nd 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 City of Tampa determined voyeurdorm.com to be an adult-use business and as such, not permitted in a residential single-family zone.

The zoning ordinance, in relevant part, defines adult entertainment establishment as “any premises … on which is offered to members of the public or any person, for a consideration, entertainment featuring or any way including specified sexual activities …” Tampa argued that voyeurdorm.com is an adult-use business referring to the unambiguous language of that section and, most importantly, the City asserted that nothing in the zoning ordinance limited its applicability to the premises where the adult entertainment is actually consumed. It was this threshold issue of ‘where the adult entertainment is consumed’ that the appeals court found troubling.

The appellate court determined that the consumers of the adult entertainment do not go to the house or congregate anywhere else in Tampa to enjoy the entertainment. The Court determined that the entertainment was located in “virtual space,” and that the definition did not apply to a house which there is no public offering of adult entertainment.

The Court reasoned that the body of case law applying legislative restrictions to adult entertainment establishments relied on adverse effects that debased adjacent properties. It is this negative secondary effects doctrine that has been used to justify the regulation of adult uses through zoning ordinances across the nation, beginning when the Supreme Court upheld a zoning ordinance that prohibited adult motion picture theatres from operating in certain locations in City of Renton v. Playtime Theatres in 1986.

In this case, the Court concludes with a footnote appearing to damn zoning regulation of Internet businesses because cyberspace is a unique medium with no particular geographic location, but available to everyone, anywhere, with access to the Internet.