City narrows window for adult businesses

Ordinances OK zoning, but restrict operations

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A year after toughening regulations for sexually oriented businesses, the Lone Tree City Council on June 4 adopted a still more specific set of rules for such retailers.

The change comes a year after Fascinations adult store tried to open in the city’s Entertainment District, later suing the city in federal court for a hasty change in ordinances that blocked the plan. The case has not been settled.

At first blush, the new restrictions appear at odds with one another; one gives strip clubs, adult bookstores and similar businesses an area in which to operate, and the other sets requirements for them. But they are crafted to meet constitutional requirements governing free speech, while restricting what goes on within the walls of sexually oriented businesses.

It’s the most severe approach Lone Tree can take short of banning the operations entirely, said an attorney who specializes in adult business regulations.

“I think this city has adopted the best laws it can get,” said Tennessee-based Scott Bergthold, the $250-an-hour special counsel whom Lone Tree hired to help write the ordinances and flew in for the June 4 meeting. “You meet the constitutional standard. If you’re so restrictive the courts have said you don’t have alternative sites, it will be struck down.”

In cities where heavy-handed ordinances were defeated, adult retailers typically can build wherever they choose — a scenario Lone Tree never wants to face.

“We are obligated to zone for these folks,” Mayor Jim Gunning said. “Nobody wants to zone for this. We have no choice.”

“It’s sort of like a doctor saying, ‘You have cancer. The good news is, you can put it in your body wherever you want,’” Bergthold said. “The alternative is really not tenable.”

The area in which adult retailers now are allowed extends from Quebec Street east to Yosemite Street, between County Line Road and C-470.

If an adult business opens in that area, it won’t be allowed to serve alcohol, stay open past midnight, or have nude dancers or enclosed peep-show booths. Store managers must have a direct line of sight into every room in which a sexually explicit video is shown, a set-up likely to deter many potential patrons.

“If you’re interested in that type of activity, you have to pretty much be willing to do it in a crowd,” Gunning said.

That standard could discourage the retailers entirely. “This is not how they make their money,” Bergthold said. “They make their money by privacy.”

Sexually explicit books, videos and erotic dance are protected forms of free speech under the First Amendment. But a 1986 U.S. Supreme Court ruling lets local government restrict sexually oriented businesses to specific areas if it proves the businesses produce harmful secondary effects like decreased property values and lewd behavior. Studies in other communities, crime reports and anecdotes suffice as evidence, even in communities in which no such businesses ever have existed.

City council adopted those findings along with the restrictions, but said the process wasn’t easy.

“To say this was a challenge was an understatement,” Councilmember Jackie Millet said. “This doesn’t mean we’re going to stop looking at this. But today, this is the best we can do.”

City attorney Neil Rutledge said the new regulations are not tied to the Fascinations lawsuit.

“But because of that, we took a look at our ordinances,” he said. “This law keeps changing all the time as court cases come out. Unless you really keep up to date all the time, it gets a little dated.”