County struggles to limit locations of adult stores

Thursday, March 20, 2003 | 9:52 a.m.

A Clark County ordinance to regulate new sexually oriented clubs, stores and other businesses has been delayed once again.

The County Commission's decision to hold the proposed law, which would restrict such businesses to a swath immediately west of the Strip, is the latest chapter in a yearlong struggle. While the decision to postpone the introduction of the ordinance by two weeks passed the commission 4-0, it came with a high degree of frustration by commissioners.

"Two meetings ago I indicated I was not willing to hold this anymore," Commissioner Yvonne Atkinson Gates said. "It just seems to me that we cannot get our act together in terms of what we want."

Commissioner Myrna Williams, who began the debate on the issue a year ago, said her central concerns is that such adult-use businesses are now permitted in a common industrial zoning called "M-1" by the county planning rules.

Those M-1 zones are increasingly located near homes, churches and other facilities. Williams wants to keep those adult businesses away from the residential and community areas. But the overlay proposal is running into problems from neighbors who are less than welcoming for stores and clubs peddling X-rated material.

"There are major problems with the overlay that was designed," Williams said.

One of her central concerns is that the overlay zone as designed could create a red-light district immediately next to the Strip, she said.

But other commissioners have indicated concerns as well, she said.

"We are going to have to have staff go over that with all the commissioners to discuss the problems," she said.

Williams said she would prefer to require all such proposed businesses come before the commission for a permit -- but that avenue has been tried, unsuccessfully, by the county

A decade ago the courts found that the county's system for adult businesses was unconstitutional, that it denied freedom of speech for such businesses because the commission essentially denied all applications.

"There are persuasive arguments that we cannot have the same discretionary use permit that you can for other (land-use) applications," county attorney Rob Warhola told the board.

Attorney Allen Lichtenstein, who has represented the targeted businesses and is an attorney for the American Civil Liberties Union of Nevada, agreed.

"Anything that gives them that kind of discretion in First Amendment terms is unconstitutional," he said. "There is no question that cannot occur. First Amendment activity cannot be at the unbridled discretion of elected officials."

County staff has already significantly modified the proposed law, which once had four islands of adult-use zoning scattered around the urban area.

North Las Vegas officials complained bitterly about an earlier version of the law that included one such zone at the northern gateway to their community. That district adjacent to North Las Vegas is no longer a part of the proposed ordinance.

"North Las Vegas is satisfied with the changed ordinance as reintroduced," said Donna Kristaponis, the city's development services director.

"In my opinion, the staff bent over backwards to work with us and we appreciate the changes," she said.

The county has another potential constitutional problem as well: Since Williams first proposed changing the law, the county has imposed a moratorium on new applications for such sexually oriented businesses.

Warhola and Lichtenstein agreed that the county is potentially on dangerous ground if it continues to extend the moratorium, which is scheduled to expire in two weeks.

"The moratorium is already in the realm of unconstitutionality," Lichtenstein said. "To just keep extending and extending it, I think that anyone who wants to challenge it would have a very good chance."

Commissioner Bruce Woodbury and Commission Chairwoman Mary Kincaid-Chauncey said the adult-use overlay zone might be the best answer from many bad alternatives.

"Let's hold it for one more time, see if we can't make it work," Woodbury said. "At least it would eliminate the problem of being able to go in anywhere it is M-1."

Kincaid-Chauncey echoed the frustration of her colleagues.

"I don't know what the answer is either," she said. In the absence of another proposal that would pass constitutional muster, "We could at least have this one to fall back on."

"The difficulty is that the staff does not really know how to approach this because there are so many legal implications in all this," Kincaid-Chauncey said.

She said she does not like the idea of passing a law that could land the cash-strapped county in court and eat up resources. But there is support on the board for a law that might do just that.

Williams said she is not afraid to go to court on the issue.

"There is a point where things get overanalyzed and overcomplicated," she said. "We do know better than staff because we're out there with the people more. I don't know why we're always afraid to take our righteous cases to court."

Lichtenstein said he has another answer.

"If it ain't broke, don't fix it," he said. "With all the problems we have in this valley, some people may not like sexually oriented businesses, but in terms of the problems this valley faces, that's nowhere near the top of the list."