CocoDorm, Adult Uses and City Ordinances

By Rachel Carlson, LMC Staff Attorney, http://lmccodification.blogspot.com

The US Court of Appeals for the Eleventh Circuit issued an opinion on June 25, 2010,
related to the City of Miami, Florida’s on-going problems with an adult use business
called “CocoDorm.” CocoDorm has a lot of over the top facts, but the case has been a
battle over plain, old city ordinance language. The recent holding is available here:
http://www.ca11.uscourts.gov/opinions/ops/200911264.pdf

CocoDorm is located in a fairly normal, upscale (some might say affluent) residential
neighborhood in Miami, Florida. The Eleventh Circuit summed up the activities taking
place at CocoDorm succinctly:

“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 videofeeds, including sexually explicit conduct, from the
webcams in the 27th Street residence.”

Victoria Mendez, Associate City Attorney for the City of Miami, summed up the business
in a recent paper (written prior to the decision issued by the US Court of Appeals):

“Imagine going home after a hard day’s work, opening your front door, getting your
groceries out of the car, being greeted by your six (6) year old child at the door, and
looking up, casually, to see a naked man, or two, by an open window in the second
floor of the house next door! Well this is commonplace for the neighbors living near
503 NE 27 Street, in Miami. It is at this property, where fellows like Ninja Nixon, Baby
Star, Hunter Jones, Phantom 2, Mista B, Sexy Hustlah, Ken Mariano, Christian
Armani, Domino Star, Playboy Redd, Zodiac, Jus Incredible, Nathan Kain 2, Kizzy,
Markell, and Jamarion live. These are the boys from CocoDorm.com. These young men
presently live together and perform live sex shows that are broadcast live via the
internet for a fee. Coco Dorm, a porn website, is owned and operated by Flava Works,
Inc.”

Mendez’s paper is available here:

http://new.abanet.org/sections/statelocal/PublicDocuments/Sex%20and%20the%20M
agic%20City.pdf.

I listened to Mendez speak at the October, 2009 IMLA Conference in Miami. As I recall,
she stated that at first blush they thought they had a pretty straight forward case on
their hands – CocoDorm was clearly operating an adult establishment in a residential
zone and adult establishments were not permitted uses for that zone.

And then they took a closer look at their ordinance. The ordinance language in place
when CocoDorm opened appeared to define adult businesses in a limited manner - as an
actual, physical storefront visited by customers. For example, a bookstore, where
consumers walk to and fro across the threshold to purchase goods. This language didn’t
appear to fit the CocoDorm situation very well. In CocoDorm, customers didn’t visit the
place of business – adult images were created on-site at CocoDorm, that were then
transmitted to a warehouse elsewhere, processed and re-distributed to paying customers
over the internet. Case law related to this issue existed from the nearby City of Tampa,
FL (see Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (11th Cir. 2001) and didn’t
favor the city.

As a result, the City of Miami chose not to litigate on appeal whether CocoDorm was an
adult business. Instead, they were left litigating whether the conduct was a prohibited
commercial enterprise in a residential district under their more general zoning
language. In the June 25th opinion issued by the US Court of Appeals for the Eleventh
Circuit, the City of Miami appears to have scored a victory on this point. However, the
court remanded on several constitutional issues raised by CocoDorm, so the case is on-
going (with likely no end in sight for years). In the interim, Miami amended its adult use
ordinances to better fit (and more clearly prohibit) the CocoDorm type businesses. The
new language can be found at this link:
http://egov.ci.miami.fl.us/Legistarweb/Attachments/46710.pdf

CocoDorm creates concerns for all cities big and small, because a similar business could
be viable just about anywhere and in any city. Porn has tremendous profit making
potential, and this is a unique opportunity to make that money with limited investment
in overhead. All that is needed is a house and some webcams. Miami had several years
from the Tampa Voyeur Dorm decision to consider whether a similar business might be
coming their way, and yet did not amend its ordinance language to contemplate this
new business model for adult establishments. I haven’t heard of any similar businesses
setting up shop in Minnesota – but now might be a good time to review local city adult
use ordinances to determine if the current language provides adequate regulation for
this type of business.

About the Author:

Rachel Carlson is an attorney with the League of Minnesota Cities. The League of
Minnesota Cities is a membership organization serving Minnesota cities since 1913.
LMC Codification is a specialized service to help our cities maintain complete, up to
date and affordable code books in a frequently changing legal landscape. The LMC
Codification blog can be found at: http://lmccodification.blogspot.com.