Commission tries to plug loophole in adult stores

Jeff Schweers

Thursday, March 7, 1996 | 11:59 a.m.

A loophole in a 15-year-old county law that allows people to operate adult video rental stores without requiring an adult business license has the County Commission steaming.

Board members learned of the loophole Wednesday when they denied a use permit to a high school teacher who wanted to open a video store across from the Showboat hotel-casino on Fremont Street.

Rancho High School teacher Charles Mosher of Black Lab Productions argued that as long as he wasn't selling adult videos, he didn't qualify as an adult video store under the definition laid out in county code.

Mosher also said the county has set precedent by letting other video stores rent adult tapes without requiring an adult business license.

"I think it is a loophole and we as a board are looking into it as a result of this," Commissioner Erin Kenny said. "There is a gap in the way we approve that type of zoning for that type of industry."

County code says that any store that gets 51 percent or more of its gross sales from adult-oriented books, magazines, film, tapes or discs must obtain an adult business license, but doesn't deal with revenue gained from rentals. The code also restricts where adult businesses can be located.

County counsel Mahlon Edwards said the district attorney's office was unaware that video stores renting all adult videos existed. He said the ordinance would need to be re-examined.

"When the ordinance was drafted back in 1981, we didn't have the problem that you've got now with rentals," Edwards said. The DA would have to see what new case law says and whether including rentals would stand up to a constitutional challenge, he said.

Vague answers

Commissioners denied Mosher's request when he wouldn't say what percentage of his stock would be sexually explicit tapes. He said that would have to be determined by the market.

"Our intention is to open a video rental store, never an adult video store as defined in county code," Mosher said. "It could be 100 percent Spielberg videos or 100 percent adult videos and still wouldn't be classified as an adult video store, because we're not selling videos."

Commissioners got furious at Mosher for answering their questions with their own vague legal definition.

"You know the question I was asking ... and what it was geared toward," Commissioner Erin Kenny said. "It insults our intelligence. ... You're being dishonest in your answers."

Saying she wished there were no need for adult video stores but that you can't legislate morality, Kenny said Mosher should find a more suitable location.

"That sounds like a prejudicial point of view," Mosher said.

Black Lab officials said they've been tarred with the same brush as previous video stores at that location, which include Talk of the Town and Boulder Highway Videos.

The county sued to shut down Boulder Highway Videos in 1994 for operating without a license. Boulder Highway Videos subsequently appealed and lost at the Nevada Supreme Court. Last June, the company reapplied for the same location and lost.

"It's guilt by association," said Steve Hampton, a corporate officer for Black Lab. "The perception was that it is an adult business. Legally, it's not an adult business, and by their own admission it's not an adult business."

Black Lab's use permit had been approved by the Clark County Planning Commission and staff had recommended approval. But zoning coordinator Lucy Stewart allowed that the neighborhood was changing and may not be the right place for a video store that rented sexually explicit tapes.

Showboat opposed

Showboat officials appealed on the basis that the store was not appropriate for the neighborhood -- a mostly commercial strip of Fremont Street that includes a Montgomery Ward store, a nightclub and other commercial business.

"Our concerns haven't changed since the first day," attorney Mark Fiorentino said. "We're not asking you to deny this, but an adult-oriented business causes us some concerns. We don't want an adult-oriented business."

Commissioners agreed an adult business was not appropriate because of the mobile home parks and senior apartments in the neighborhood.

"It appears a Blockbuster video store would be more appropriate for the area than what is proposed today," Gates said.

Kenny agreed with Gates, that had a chain like Blockbuster or Video Tyme come before the commission, it would have had a better chance of getting approved.

Assistant District Attorney Chuck Hauser said the county was within its rights to demand conditions on a use permit that include the percentage of adult videos that will be carried.

Hampton said the board abused its discretion by setting that condition and in denying the use permit. The location was appropriate, the request conformed to the master plan, and it would have no adverse effect on the neighborhood, he said.

"Case law says if you meet the legal standards and they deny you, that is an abuse of discretion," said Hampton, who practiced law in California before moving to Las Vegas. "We were denied due process by guilt by association."

Hampton said the board's decision may also constitute an illegal taking, because it deprives the owners of "all feasible economic use" because nobody can apply for another use permit on the property for at least one year.

"We met all the legal criteria for a use permit," he said. "The board members didn't follow the law, but instead followed their personal prejudices against pornography."

Kenny