State, federal laws
protect strip clubs
By JEFFERSON WEAVER
It may not seem like a free speech issue, but two erotic dance clubs in Delco may have the U.S. Constitution on their side – to an extent.
Magic Moments and Whispers were closed Aug. 3 by Columbus County sheriff’s deputies. Six women, including the manager of one of the clubs, were arrested on a variety of charges.
Sheriff Chris Batten is attempting to permanently close the clubs by enforcing a county ordinance restricting locations of adult businesses. Two Delco churches, a Christian school and a public school are within a few hundred feet of the clubs.
The county ordinance forbids adult businesses within 3,000 feet of a residence or other sexually oriented business, and 5,000 feet of churches, daycares, and schools. Both clubs are in violation of the county ordinance.
At the same time, a series of state and federal lawsuits show the county’s policy may be too stringent.
County ordinance
Whispers was only open for a few days, but Magic Moments has been the target of many complaints to the sheriff’s department since it opened in the 1980s.
“Almost from the beginning, we have had complaints about Magic Moments,” Batten said.
It was complaints like those, and statements by an informant, that led deputies to raid the two clubs last week.
All six women who were arrested face multiple charges. Those cases are still pending in District Court.
In a civil hearing in Columbus County Superior Court last week, Judge Jack Hooks Jr. ruled that Magic Moments was in violation of the county ordinance, and scheduled a civil hearing for Aug. 18 to determine if the business will be permanently closed.
Whispers was allowed to remain open, since Hooks ruled there was insufficient evidence of illegal activities to justify the civil complaint.
An unidentified informant provided some of the information that led to the raids. In Friday’s hearing, County Attorney Steve Fowler did not call the informant to the stand.
Fowler told the court he was concerned the testimony could cause problems with the criminal cases. He did not offer any further explanation.
Residents have called to close the businesses down permanently, but Batten said Monday permanently closing the strip clubs would be difficult.
“Whether you like these types of places or not,” Batten said, “they are protected by the courts. What we want to do is enforce the county ordinance and make these businesses move, and enforce the law as written in the general statutes.”
Batten said enforcing the county’s rules about adult businesses is not an attempt to run them out of the county.
“We legally can’t do that anyway,” he said, “but we can force them to comply with state and local laws.”
Hooks ruled in favor of the county in the Magic Moments complaint. He granted the county a 10-day injunction closing Magic Moments, based on fire and building code violations. Another hearing is scheduled for this Friday.
Both establishments have been closed since the raids. Whispers voluntarily closed its doors on the first day of its grand opening.
Non-conforming use
The county’s policy on sex-related businesses was passed in 1977, and modified in February 2000. It mainly concentrates on massage parlors, although the provisions are written in such a way to apply to all adult businesses.
The ordinance defines any adult businesses as “any business… which permits any employee … on its premises to exhibit any specified anatomical areas before any other person or persons.”
Such businesses are prohibited within 3,000 feet of a dwelling or another such business, or 5,000 feet from a place of worship, but businesses that were “lawfully operating” before February 21, 2000 are allowed to remain open for two years as a non-conforming business. The operation then has two years to come into compliance with the county rules.
Magic Moments has been open for more than 20 years, and Whispers opened earlier this month. The clubs are located about 2,500 feet apart on U.S. 74-76.
Whispers is 809 feet from Delco Pentecostal Free Will Baptist Church, and Delco First Baptist is 1,234 feet away. The U.S. Supreme Court has ruled 1,200 feet to be a reasonable distance between adult establishments and churches.
If Whispers is close enough to upset area residents and church-goers, Magic Moments is just too close for comfort for its neighbors.
Faith Baptist Church and Christian Academy is 272 feet from Magic Moments. At least one home is less than 350 feet away. The building also has several fire code violations, according to court testimony by county fire inspector Kevin Thompson.
Elizabeth Settlemeyer, who runs Faith Baptist Academy, said Magic Moments is an embarrassment to the church and the community.
“People might not know where our church is,” she said, “but they recognize where that place is located. It’s an embarrassment to the community.”
But according to a planning consultant with the N.C. Institute of Governments, what is embarrassing or offensive may still be protected as free speech.
Clarifying the rules
The N.C. Legislature has passed several measures in recent years in attempts to clarify what local governments can and cannot do to regulate adult business.
As towns and cities strengthen their own ordinances, counties and rural communities are seeing an increase in adult businesses, as well as problems regulating such establishments.
In his study on adult businesses and zoning, David Owens of the Institute of Government points out that local governments can pass reasonable ordinances, but cannot legislate adult businesses out of existence. Courts have ruled in favor of a topless bar near Roanoke Rapids, a dance club in rural Harnett County, and similar businesses in resort communities from Currituck County to Maggie Valley, according to Owens’ report.
Several state and federal court rulings have stated that state laws pre-empt local ordinances. Most attempts to “zone out” adult businesses based on indecent exposure statutes, building requirements and alcohol sales have been defeated as unconstitutional, since erotic dancing has been ruled, in some circumstances as free speech.
N.C. General Statute 14-190.9 allows local regulation of adult businesses, and NCGS 160A-181.1 sets out options available to local governments.
Location, operation, licensing requirements and “appropriate local ordinances” are specifically mentioned in the statute.
Local governments can also restrict noise, exterior advertising, ages of patrons and employees, prohibiting employment of people convicted of sex- or adult-business related crimes, and “age-out” rules for non-conforming adult businesses.
Nuisance or free speech?
Owens notes that the law does give communities one very powerful weapon in their war on adult establishments.
The Legislature changed state law to allow public nuisance statutes to be used to force adult businesses into compliance, or push them out of business, if they repeatedly violate local rules.
Nuisance laws are commonly used against illegal nightclubs, drug houses and bootleg joints in North Carolina, as well as against legitimate businesses that repeatedly cause problems for their communities.
For a judge to issue a closure order (commonly known as “padlocking” an establishment) there must be sufficient evidence of criminal activity at a targeted business, or a business must be proven detrimental to the community.
In several controversial decisions, the U.S. Supreme Court ruled in 1986 and again in 1991 that sexually explicit speech or actions are not necessarily obscene, and is therefore protected – sometimes – as free speech.
In other words, Owens’ study states, what is offensive is not necessarily illegal.
At the same time, state courts have wrangled over how local governments can prohibit behavior and material that offends residents of their communities.
One of the most effective tools in regulating strip clubs – banning or strictly regulating alcohol sales in adult-oriented businesses – is not an option, since alcohol generally cannot be sold outside an incorporated town in Columbus County. Violation of ABC laws in North Carolina can result in forfeiture of property as well as closure of a business.
In the meantime, the Town of Bolton scheduled an emergency meeting for Friday after two women approached the town about opening a club there. The women were reportedly associated with one of the Delco clubs.
The board will review the town’s zoning ordinance, which doesn’t specifically address adult businesses.
Batten said if the clubs move, they would be closely monitored for compliance with all applicable ordinances and laws.
“We just want them to move to a location where they aren’t underneath people trying to worship or raise their families,” Batten said. “We can’t run them out of business, but we should be able to enforce the county’s rules and the state law.”