SALISBURY – Without hesitation, the Salisbury City Council pushed through this week much more stringent regulations on adult entertainment businesses toward final approval.
On Monday evening, the City Council held a public hearing reviewing an ordinance in first reading to amend sections of the Salisbury Municipal Code relating to adult entertainment business.
The ordinance states, “The City previously passed ordinances to regulate the location of adult entertainment businesses, and at that time the City found that in order to protect the health, safety and welfare of the City’s citizens, it was necessary to allow suitable locations for certain adult entertainment businesses while limiting their adverse secondary effects on the community.”
The ordinance furthers, “The City found that adult entertainment businesses are associated with increased crime and decreased property values, and adversely impact the quality of life in surrounding areas…In order to lessen and control these effects and to limit exposure of these businesses to children, the City found that it was necessary to place certain restrictions on the location and arrangement of adult entertainment businesses. Similar ordinances have withstood legal challenge. The City now finds that certain refinements are needed to that portion of the Code relating to adult entertainment businesses in order to more effectively regulate the location of such businesses and prevent the subversion of the Code’s purposes.”
City Attorney Mark Tilghman explained the amendment will change the definition of “significant amount” in regards of adult entertainment merchandise display area from 20 percent to, “15 percent of the area used for the display or storage of merchandise on the floor, walls, or vertical display area of the cabinets, shelves or racks which rise from the floor (or any combination thereof which is at least 15 percent of the area used for display or storage) is used for the display or storage of adult entertainment or material or houses or contains devices depicting, describing, or relating to adult entertainment or material. … at least 15 percent of the gross revenue is, or may reasonably be expected to be, derived from the provision of adult entertainment or material.”
Tilghman added, “Previously there were limits on the location of adult stores, they have to be more than 1,000 feet from churches, residences, etc. and the definition of nonconforming uses … is basically stating they be permitted to continue to exist in their current locations without conforming to the 1,000 foot limitation for up to years after the passage of the ordinance. After that they would be compelled to conform.”
Tilghman reported the ordinance sets in place “inspection of the premises” where after the city receives a complaint about a business alleged to be in violation of the code, the city may inspect the place of business and financial records. The inspection will occur after notice has been furnished to the owner and occupants. If the city’s inspector is denied access to the financial records or place of business, the inspector can obtain an administrative search warrant to gain access.
“This ordinance also established the availability of an administrative search warrant in order to enforce, and it sets up the procedures of it will be done,” Tilghman said. “This particular proposal was sent by council to the Planning Commission. The Planning Commission has reviewed the proposal and has recommended that it be approved.”
Cynthia MacDonald, representing Red Light District/B&Z Investments, argued the language used in the ordinance is open to a constitutional challenge.
“After reading through the minutes of the work session the council held on this, it appears the council wished to reduce the amount of usable floor space that could be allocated to certain types of merchandise sold in the establishment and upon review of the language used by the city attorney in making that change it became apparent that the change is much more significant,” MacDonald said. “The language was actually changed so the percentage is not being applied to the usable floor area but will be applied to the area used for display or storage of merchandise on the floor, walls, or vertical display area…so rather than measuring the total floor space of the building and then figuring out what percentage is allocated to certain types of merchandise that language has been changed by the city attorney so that it is less easy to quantify what the total area is versus the area being used for the display of that merchandise, and because of that vagueness I believe this ordinance will be open to constitutional challenge.”
MacDonald also asserted the Red Light District on North Salisbury Blvd. does not strive to be an adult entertainment business.
“It is obvious the statute was made to target one particular business that is located in the City of Salisbury. That particular business is not an adult oriented business or an adult entertainment business, and it strives not to be, and it will continue to strive not to be,” she said.
Once the public hearing was closed, Council President Jake Day took issue with the assertion the ordinance targeted only the Red Light District.
“It is designed to target three [adult entertainment] businesses, and one of those is going out of business,” he said. “To suggest that the business that you are representing is not an adult entertainment business, I find that hard to believe given the name of that business and given the images of nude women in about 95 percent of the windows of that business. I hate to use the word ‘laughable’ at the assertion but it is frustrating that claim would even be made in this room.”
Day also argued the language of the ordinance is tried and true as it has been used by other municipalities.
“It is pretty clear to me,” he said. “The only thing it is missing is the ceiling, and if you can hang merchandise from the ceiling than it should be included, too. I am satisfied that the floors, the walls, the vertical display areas of cabinets, shelves and racks is efficiently descriptive. I have no problem with this.”
The council voted 4-1 to approve the ordinance in first reading with Councilwoman Laura Mitchell abstaining due to coming in late.