City leaders kept quiet when porn mogul Larry Flynt threw a grand opening bash for his Hustler Hollywood store in Tempe last month. But that doesn’t mean they ignored the emporium of adult videos, toys and sex-related items.
The city is looking to tighten regulations on all kinds of businesses that deal with sex, from adult video shops to clubs where people go to have sex. One new restriction goes before the City Council tonight, a ban on sexual encounter centers, also known as swinger clubs.
This comes months after a strip club owner filed a federal lawsuit against the city for blocking the business. And the city is studying whether it can put further restrictions on stores like Hustler Hollywood, which the city has virtually no control over because the shop doesn’t stock enough sexual material to be classified as an adult businesses.
Tempe Mayor Hugh Hallman said his city needs to move quickly to bolster its dated regulations. Surrounding cities have toughened their rules and could “end up driving the businesses they don’t want from their communities into our community.”
The new regulations could prove tricky, as the city tries to respond to residents who don’t want sex shops in their neighborhoods without going too far and losing costly legal battles in court. And if a court strikes down a regulation, it could also throw out existing restrictions and make it easier for sexually oriented businesses to open.
Tempe is betting the swinger club ban is the safest new regulation. Phoenix has also banned them and the decision has survived a federal challenge in the Ninth Circuit Court of Appeals.
“We feel comfortable what we’re doing is a lawful ban,” city attorney Andrew Ching said. “There is no right to have these types of centers.”
But Hallman and Ching acknowledge a possible new restriction on stores like Hustler Hollywood isn’t as clear.
Now, Tempe and many cities across the nation let stores devote up to 33 percent of their floor space to sexual products without being considered a sexually oriented business. Hallman wants to consider a lower percent — perhaps 25, but the issue is still being researched.
A change could backfire if Tempe isn’t careful.
Many owners of adult shops have plenty of cash to challenge cities under their First Amendment rights to free speech. If a business can show a restriction blocks speech, Hallman said, a judge could overturn every bit of a city ordinance. That would leave Tempe nearly powerless to stop any adult businesses that started to apply for a permit once the court began considering the issue.
“You can see the trouble one faces in handling these cases and why it has to be handled extremely carefully,” said Hallman, who is also an attorney. “I don’t think people understand what’s at stake for the community.”
Tempe has already ended up in federal court over the proposed Elite Cabaret on McClintock Drive.
The strip club could have legally opened under Tempe’s existing 1,000-foot distance from places like parks, churches, schools and neighborhoods. But as the club was waiting for the city to process its application last year, the Arizona Legislature passed a state law that mandates a buffer of 1,320 feet. A park was within the larger distance and killed the club’s ability to open.
But the club has claimed the law is unconstitutional because the larger distance would prevent any new adult business in Tempe. The city and club will meet for a mediation in February. A victory for the club would be painful for Tempe, as Elite has asked the city to pay for lost revenue the delay caused.
Tempe has just two sexually oriented business now, Fascinations on Elliot Road and Modern World on Apache Boulevard. The city can restrict those businesses to industrial areas and keep them away from neighborhoods, schools, parks, churches and other facilities.
But stores such as Hustler Hollywood, with 33 percent or less adult material, can open where any other retail store is allowed. Tempe has several shops like this, including Fascinations on Mill and Smokin’ Lingerie on Scottsdale Road.
Other adult businesses have expressed interest in the city, said Chris Anaradian, the development services manager.
“I once had a call from a woman who asked if she could open a dungeon in Tempe,” Anaradian said.
Nothing ever came of that.
Tempe activist Darlene Justus said the city needs tougher restrictions to prevent children from a barrage of sex. She’d like more scrutiny on the stores that sell a limited amount of sexual material because she’s been troubled by a north Tempe convenience store that exposed children to pornography.
The store put videos with explicit sex acts on the covers just three feet from a soda fountain, and it took four visits from the police department for the owners to shield the explicit tapes.
She blames the strip clubs, massage parlors and similar businesses in south Scottsdale and a county island for some of the blight, crime and prostitution in the area. Justus said the increasingly easy access to sexual material likely played a role in the Cave Creek school scandal, where authorities are investigating whether 13-year-olds were having sexual contact at school.
“I’m very concerned about the mainstreaming of stuff like this and the effects it has on our children,” Justus said. “It’s no wonder we’re having problems at a younger and younger age with these kids in middle school and even younger.”