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'You're sitting ducks,' newly hired Clay attorney says about ban on adult-entertainment businesses

Posted: April 8, 2014 - 6:36pm  |  Updated: April 9, 2014 - 9:06am

GREEN COVE SPRINGS — Clay County commissioners acted Tuesday to prevent a possible future incursion and establishment of adult-entertainment businesses into the county.

Commissioners voted 4-1 to hire Michael Kahn, a Melbourne attorney well-known as an expert in constitutional law and crafting ordinances regulating adult businesses that withstand court challenges.

“You are sitting ducks,” Kahn replied when commissioners asked his opinion of Clay’s current ordinance banning adult-entertainment establishments including novelty shops, bookstores, arcades, theaters and strip clubs.

Clay currently doesn’t have any adult-entertainment businesses. Commissioners supported by more than a few church leaders as well as residents want to keep out those establishments. The problem is, the county’s existing ordinance likely would be declared unconstitutional if challenged in court — an opinion County Attorney Mark Scruby previously has given the commission.

Kahn said “it’s tremendously good fortune” that Clay doesn’t already have adult-entertainment businesses because its 1985 ordinance won’t hold up in court.

“If your ordinance were ever challenged, it would be stricken as unconstitutional …You have a ban. Bans are presumptively unconstitutional, so says the United States Supreme Court,” said Kahn, citing the law, which is supported by numerous court rulings and case law.

Adult entertainment businesses are considered protected free speech under the First Amendment, which makes it difficult for counties and cities to prohibit or otherwise regulate them.

To remain within the constitution, Kahn said, counties and cities “can regulate the secondary effects of that speech, which include the adverse health effects of adult entertainment, the adverse real property effects and adverse criminal law effects of that industry.”

Kahn will put together a package of three ordinances already proven to pass constitutional muster that will discourage, if not out-right prevent, adult businesses from setting up shop in the county’s unincorporated areas.

The incorporated municipalities of Orange Park, Green Cove Springs and Keystone Heights, which each have similar bans, wouldn’t be covered by the new county ordinance.

The commission voted to pay Kahn a $5,000 retainer and $300 an hour. Kahn estimated the total cost will be about $15,000 to $17,500.

Commissioner Ronnie Robinson dissented, noting that the current ordinance hasn’t been challenged since enacted.

Kahn told commissioners that the first of the three ordinances will be an 80-page regulatory ordinance. The second will be a public nudity ordinance. The third will be a location ordinance defining areas where adult businesses may be allowed, he said.

Clay’s ordinance package, Kahn said, will be similar to successful ones that he has written for Melbourne as well as other Florida cities.

“Ordinances that I have drafted have never been overturned, and in fact, have never been challenged,” Kahn said.

Kahn said he expects to have the regulatory and public nudity ordinances ready in about two weeks for the commission to review. The location ordinance will take a bit longer, he said, depending on the schedule of his location expert and how quickly, the two of them can “ride the county” to identify areas where adult businesses could be located with minimal impact to neighboring property.

Teresa Stepzinski: (904) 359-4075

Comments (1)

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floridakrakker2
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floridakrakker2 04/08/14 - 07:28 pm
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This statement... “Ordinances

This statement...

“Ordinances that I have drafted have never been overturned, and in fact, have never been challenged,” Kahn said.

...does not mean that the contents of his ordinances has prevented anyone from challenging it, it appears it could be simply that no one in the adult entertainment business has an interest in moving into Clay County.

Albeit, there is nothing wrong with being proactive to stem a problem before it starts.

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