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Clay County Hires Lawyer to Rewrite Unconstitutional Adult Entertainment Ordinance


Clay County officials have hired a First Amendment lawyer to rewrite the county’s presumably unconstitutional adult entertainment ordinance.

Melbourne-based attorney Michael Kahn plans to send the first draft of his three-ordinance package to the county attorney this week. The package will regulate the industry rather than ban it as the current ordinance has for the past three decades.

Kahn explained the First Amendment protects the adult entertainment industry, so the county is vulnerable to a legal challenge at any time.

“You can’t ban a constitutionally protected industry,” he said. “We’re protecting the county by hiring me to rework the ordinances.”

The package includes three parts. One contains 53 pages outlining the regulations for any adult entertainment business that decides to come to the county. The next outlines a public nudity ordinance, which would regulate behavior outside of the industry. The third is a locational ordinance, which would designate where in Clay County adult entertainment businesses can reside.

The proposed ordinance would apply to Clay County’s unincorporated areas, which make up well over half of the county. The municipalities – Orange Park, Keystone Heights, Penney Farms and Green Cove Springs – would not be affected.

Kahn has written similar packages for counties and cities around Florida, including Panama Beach, Pembroke Park and Bay County.

County Attorney Mark Scruby first introduced the idea during a Nov. 12 commission meeting after someone called to ask about the zoning for an adult bookstore, which led to a discussion on the issue.

At the meeting, Scruby was met with opposition from the board and residents. He went back and forth with commission members for about half an hour before turning it over to citizens, who also expressed concerns, according to a commission meeting recording.

During the meeting, District 5 Commissioner Ronnie Robinson asked how much he would have to spend to defend the ordinance. Scruby estimated hundreds of thousands of dollars.

The issue was picked up again at the April 8 meeting, where Kahn gave a presentation to commissioners. After more discussion, the motion to go forward with the rewrite passed 4-1.

Much of the controversy surrounding sexually oriented businesses centers around health concerns, crime rates and real estate values.

Kahn ensured his ordinance package would work to minimize effects in these areas.

“That’s really what you’re looking to do,” he said. “You’re looking to regulate them [the businesses] as much as they can so that they don’t bring those adverse secondary effects, and that’s possible.”

But some of these regulations may be too harsh, said Gainesville-based lawyer Gary Edinger, who often sues cities and counties on behalf of the adult entertainment industry.

Edinger recognizes the importance of business regulation and admitted Kahn usually writes a “fair ordinance.” However, he said some of the rules teeter the line of constitutionality.

Many adult entertainment regulations include adult bookstores, which Edinger described as being no different than a regular bookstore where patrons come in to buy a product and leave.

“There’s no traffic, no noise, they’re not usually standout businesses,” he said. “Heavy restrictions on adult bookstores are these days subject to constitutional attack.”

He also mentioned a rule often applied to dance clubs. Dancers cannot be within three feet of a patron, a regulation mainly intended to limit the spread of sexually transmitted diseases.

An adult entertainment industry representative has never contacted Edinger looking to put up shop in Clay County, he said. The county is a popular place to retire or raise a family and those interested in sexually oriented businesses can cross the line into neighboring Duval County.

Despite the demographics, Kahn said he is working to protect the county just in case. He plans to present the draft versions of the ordinance to Scruby this week. He is also preparing testimony with health, real estate and crime experts to help strengthen his case to a skeptical county.

“Just like speech that we don’t like, we can’t disavow it [the industry],” he said. “It has its place in society.”

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