It’s been 16 years since Boone County adopted an ordinance relating to sexually-oriented businesses. They are now taking steps to address changes in practices in the industry that have occurred since that time.
During Tuesday’s regular session, the panel received the first reading of an ordinance repealing and replacing Chapter 111 of the Boone County Code – amending licensing requirements and regulations for the businesses and employees.
The agenda item involved Chattanooga, Tennessee-based attorney Scott Bergthold, who previously assisted Boone County with language and other components within its current sexually-oriented businesses ordinance.
Boone County Judge/Executive Gary W. Moore noted the process does not stem from a forthcoming venture.
“I want to make clear to our residents and our audience, this is not being done now because there is an active project or a business that is inquiring,” Moore said. “By the way, that’s not the time to do these kinds of things, if there was. We’re adopting a new ordinance because there were so many changes and updates – we thought it was cleaner to do that. There’s not an active project.”
Bergthold began his presentation by providing some background.
“The definition of sexually-oriented businesses basically includes adult book stores; adult arcades – which are basically video peep show booths; an adult cabaret – which we commonly refer to as a strip club; an adult theater or a sexual device shop,” Bergthold said. “It’s important to stay ahead of the curve as much as possible. We had an ordinance that we worked on some 16 years ago that has been a solid ordinance, a strong ordinance. However, we wanted to update that to take into account more recent case law and to deal with the changing practices of the industry.”
Bergthold also introduced the legal term secondary effects, noting it refers to adverse impacts from a land use, crime, public health and safety perspective.
“It’s not so much moral opposition to pornography, as it is the demonstrable impacts of these types of establishments on a community shown in studies over many decades,” he said.
According to Bergthold, when courts describe secondary effects, they have five major categories: Negative impacts on surrounding properties; personal and property crimes, public safety risks and confrontations; lewdness, public indecency, illicit sexual activity and potential spread of disease; illicit drug use and trafficking; and litter, aesthetic impacts, traffic, noise and blight.
“It’s not an ordinance that allows for adult businesses,” Bergthold said. “The Constitution, the First Amendment, allows for businesses that sell sexually explicit, but non-obscene materials, to be in the community. The Supreme Court has said if cities or counties want to restrict adult businesses, they must get out in front and tell the business where they can go, so to speak.”
Bergthold said the ordinance “does not lay out the red carpet for any adult businesses and there are none knocking at the door that we are aware of – but rather sets the restrictions because the Constitution presumes that these businesses can go into a community and not be completely banned.”
A proposed second reading of the ordinance is slated for July 11, according to the Fiscal Court.
“We’re being proactive,” Moore said. “We are doing our best to be in front of this issue and to guide where a business like this, that has their own constitutional right – where they may or may not be in our county, if they so apply.”
Boone County officials indicated the zoning code does permit sexually-oriented businesses in limited zoning districts, adding there are also performance standards – and if in an industrial district, the sexually-oriented businesses have to be 1,000 feet from a church or a residence, a school, a daycare, a park and those kind of sensitive land uses.
Additionally, Bergthold said the ordinance, like its predecessor version in Boone County, prohibits alcohol on the premises of sexually-oriented businesses.
