Borough assembly rejects ban on adult businesses

Posted: Thursday, June 23, 2005

The Kenai Peninsula Borough Assembly has rejected an ordinance that would have placed restrictions on sexually oriented businesses such as adult bookstores, video stores, arcades, theaters and motels.

Saying that while they supported the general intent of Ordinance 2005-11, which sought, among other things, to prevent crime, shield children and protect property values in the unincorporated borough, five of eight assembly members present for Tuesday's meeting in Soldotna, voted against adoption arguing it would have made the borough planning department a de facto police force.

Assembly member Milli Martin, the prime sponsor of the measure said she would attempt to bring the issue of restricting sexually oriented businesses back to the assembly again in the not-too-distant future.

"Too much work went into this effort," she said following the vote.

Lacking police powers, the borough, a second-class municipality under the Alaska Constitution, sought instead to use its land-use permitting authority to prevent or at least curb the potentially negative impacts sexually oriented businesses, or SOBs, might have on public morals and property values.

The borough's legal and planning departments spent months drafting the measure, relying on laws passed in other parts of Alaska and the United States as a basis. By the time it reached the assembly for consideration, it had become a 24-page legal tome featuring 50 whereas clauses covering five pages and a list of applicable definitions that would have required their own section in the borough code book.

Assembly members Chris Moss of Homer and Pete Sprague of Soldotna joined Martin in supporting the measure. But members Ron Long of Seward, Gary Superman of Nikiski, Grace Merkes of Sterling and Dan Chay and Betty Glick of Kenai said that while they supported its sentiments, they had serious concerns that under the rubric of zoning, the law would essentially require borough planning department compliance officials to assume the duties of police officers.

"If we are going to do zoning, we ought to call it zoning," Long said.

The proposed law, he noted, relied on studies and surveys done elsewhere to draw conclusions about the borough where few if any sexually oriented businesses were in operation. In attempting to do away with a disfavored land use, the law actually amounted to regulating human behavior, he said.

"I appreciate the effort to try to regulate human behavior as far as we can under land-use regulation, the only tool available to us. But really what we are doing is defining in our code good people and bad people. Who's going to be the next disfavored use?" Long said.

"If we are really going to go down that road, we ought to clearly define our parameters of regulating human behavior and go ahead and put it out to the ballot to adopt police powers."

Long said he did not see the demand for sexually oriented businesses nor data showing they are coming to the peninsula. Were they to open here, he added, he did not know what the borough could do to react to crimes that might be associated with their existence other than to call the Alaska State Troopers or take action against the permit.

Chay said language within the proposed ordinance was ambiguous and appeared to leave it up to the planning department to inspect the premises of what they would decide were sexually oriented businesses, an "intrusive" aspect of the law.

Glick expressed worry that the planning director could be placed in the position of being a police officer if asked to follow up on a complaint that actual crimes, like drug use and prostitution for instance, were occurring on the premises.

Enforcement should come under the public safety category, but the law would make a police officer out of the planning director, requiring he occasionally engage in dangerous duties for which he is not trained, she said.

"I have a hard time with that," she said.

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