arkville city officials have been unsuccessful in their attempts to rewrite the current ordinance regarding adult businesses this past year.
On Sunday, Sept. 30 the second six month moratorium placed on the issuance of business licenses for adult businesses will expire. And since city officials are still waiting to review a draft of the proposed ordinance from Steve Chinn, city attorney, prior to it being adopted, they are considering placing a third moratorium on the issuance of business licenses for adult businesses.
During a work session Tuesday evening, the city attorney along with attorney Andrea Bough briefly explained the process they are undergoing to modify the current ordinance on the books, which has been in place since 1994, as well as discussed what the proposed changes include such as redefining a sexual encounter business as one that provides a means for people to “engage in sexual activities.”
Prior to any discussion, Chinn made it clear that questions regarding specific businesses should not be made, but rather inquiries about the ordinance itself.
“I don’t think it is appropriate to have a discussion about what implications this might have on a specific business,” said Chinn. “This is a public meeting so if we can limit our questions to the general substance of the ordinance.”
Bough began her presentation stating that adult businesses are given certain First Amendment protection, which means that cities are restricted from prohibiting “outright adult businesses.”
However, cities do have the authority to regulate the secondary effects of adult businesses, she said.
“These types of business have been known to generate certain negative secondary effects, and cities are allowed to impose certain reasonable time, place, and manner restrictions,” said Bough.
The city attorney pointed out they would discuss those secondary effects during another meeting held at a later date.
“It is critical that the governing body hear a presentation about secondary effects, because the only authority you have to regulate adult business is based upon…reasonable time, place, manner regulations that are designed to eliminate or minimize those secondary effects,” said Chinn.
When drafting the adult business ordinance, both Bough and Chinn acknowledged that they have consulted with experts, as well as taken into account citizen testimony and examined state statutes, which ultimately regulate adult businesses.
After reviewing the current ordinance they found that certain changes to the existing ordinance must be made to be in compliance with Missouri law. Bough also said they have drafted a 42 page ordinance that is as broad as feasibly possible, but will still hold up in the court of law.
Mayor Jim Brooks, who was under the impression the board would be presented with the proposed ordinance Tuesday evening, requested that the proposed ordinance be distributed to city officials as soon as possible in order for city officials to have sufficient time to review the matter before it is adopted.
Chinn said he would have a draft of the proposed ordinance scanned and posted on the city’s website by the end of the week. Alderman Chris Fisher suggested the board extend the moratorium on the issuance of business licenses for adult businesses to allow city officials additional time to review the ordinance prior to its adoption.
Mayor Brooks said: “I don’t want to leave the public with the impression that we are going to let this drag out.”
Additionally, counsel warned that extending this matter longer than a year may appear as if the city is not following through with its obligation.
Considering these concerns, the board discussed imposing a 60-day moratorium rather than a six month moratorium.
“I think the 60 day (time frame) is good,” said Brooks. “I think the public would like to have the opportunity to speak with their aldermen…”
Following the board’s discussion, Bough explained the method she took when drafting the proposed ordinance and she compared the existing ordinance to the proposed ordinance.
According to Bough, the most significant difference is in the way the proposed ordinance defines adult businesses.
“What we have done is kind of separate the different types of adult businesses” to include those businesses that currently are under the radar, but are really adult businesses, she said.
The new ordinance will expand the scope of what is considered an adult business by defining a sexual encounter business as a business that provides a means for people to “engage in sexual activities,” said Bough.
Chinn jumped in and claimed, “The last thing we want to do is draft an ordinance that we don’t feel comfortable will sustain the First Amendment challenge and subject the city to litigation.”
Bough said she is fairly confident that the proposed changes will hold up in court.
Another modification that was made is with regard to the hours an adult business can operate. To comply with Missouri law, adult businesses can no longer operate past midnight.
“Also we have included in the penalty provision that a business that continues to operate unlawfully under an adult business can be categorized as a public nuisance and that way they are subject to civil abatement,” said Bough.
A provision addressing non-conforming uses is also included in the proposed ordinance. This provision would allow the city to label a business non-conforming if that existing business would by chance change in nature.
“…Say you’re having a business that is operating today that isn’t an adult business under the definitions, but if they change their practices and become an adult business then they become subject to the regulations,” said Chinn.
What will stay pretty much the same are the licensing provisions as well as the current fees, she said. The licensing provision requires adult businesses to be separated from schools, churches, parks, and day care facilities by a thousand feet.
“We just have to be very careful about putting so many restrictions that there is no place that an (adult) business in Parkville can go, because that is going to be the death nail for that ordinance…There have to be places that they can go so that you can meet the constitutional test.”
Following the attorneys’ presentation, Alderman Marc Sportsman asked whether the city would struggle to enforce the proposed code.
Counsel said pursuant to licensing provisions, police have the authority to enter businesses and inspect the establishment upon a citizen complaint.
“It would be time consuming, but not complicated to enforce the ordinance,” said Chinn.