City attorney advises ‘adult entertainment’ needs to be defined

By Vanessa Kahin

Staff writer

City Attorney Dave Richards told the Planning and Zoning Commission on Wednesday the definition of “adult entertainment” should be more clearly defined by city zoning regulations.

Richards shared the memo with the commission that he sent to Planning and Zoning Administrator Louis Gordon and City Manager Joe Thomas, in which he outlines what he feels is an omission to the zoning code: A clear definition of what constitutes adult entertainment.

Current city code restricts adult entertainment businesses to industrial zones. It states that such a business may not serve, employ or allow minors and that it must have a valid business license.

It also defines “specified anatomical area” and “specified sexual activities.”

Richards said there should be a section in the city code defining adult entertainment as any business which provides or features male or female dancers, entertainers or contestants who feature the act of partially or totally disrobing; who appear with less than opaque clothing covering specified anatomical areas; who (become) involved in actual or simulated sexual activities; who emphasize and seek to arouse or excite the patrons’ sexual desires; or who fondle or caress any patron.

There is a Constitutional privilege for expression and speech, Richards noted. Therefore, he said, the complete prohibition of adult entertainment activities is not allowed.
However, the rationale for controlling adult entertainment businesses comes from their correlation to “secondary effects” such as increase in crime, prostitution and drug use, Richards said.

“The courts say it is a legitimate exercise of authority to control or regulate adult entertainment not based on restricting the First Amendment expression, but … trying to suppress problems with drugs, crime, and those sorts of things,” Richards said.

Commissioners Jeff Moore and Darryle Bender questioned the need for the definition, with Bender stating that Richards had “put forth a job description.”
Richards said the Planning and Zoning Commission will discuss the proposed addition to city zoning regulations at its next meeting in September.

Local engineer and surveyor Chad Lydick gave input during a study session. He suggested to the commission that they consider the fact that the city of Clovis is growing; and what can existing subdivisions do to apply to be annexed into the city.

“Rural subdivisions are going to be very difficult to get approved in the future,” he said. “The state has come up with new requirements … basically around water issues.”

He said he felt these regulations will prevent the development of rural subdivisions in much of New Mexico.
“I ask for your guidance,” he told the commission. “Hopefully, you set a direction on how we proceed.”

Richards noted that, by statute, based on its population, Clovis has planning jurisdiction five miles outside city limits. It was after several public meetings, he said, that it was decided that the city would exert that authority for only one mile outside its limits.

Any subdivision within this one-mile limit would have to comply with city standards, Richards said. This includes infrastructure improvements such as curb and gutter, paved streets and a sewer system.
From one mile to five miles outside the city limits, the city defers to county standards for development of subdivisions, Richards said.

“That’s kind of a floating target because the city limits change,” he said.

It’s existing county subdivisions on the periphery of the city that is of concern to Lydick, Richards said. These subdivisions may not comply to city standards.

It was suggested that Gordon and City Engineer Justin Howalt look into the issue, and that consideration be given to what other New Mexico cities in similar situations have done.