Provo beefs up sex-business law

PROVO — The Provo City Council voted 5-0 Tuesday to strengthen the ordinance regulating sexually oriented businesses that someday might set up shop in the city.

The revision is carefully aligned to comply with court decisions in two recent Utah cases involving Doctor John's Lingerie and Novelty Boutiques, but the attorney who represents Doctor John's said Provo hasn't fully inoculated itself against a future legal challenge.

"I don't think we have any particular plans to open a store in Provo, but if we did they might be looking at another lawsuit," Andrew McCullough said.

The revision is the first update to Provo's ordinance since 1997 when the city fought with a now-defunct nightclub over semi-nude dancers.

City attorneys said they drafted the revision with the help of a national expert and modeled it after an ordinance in Roy, which was upheld by U.S. District Judge Paul Cassell after Roy was sued by Doctor John's.

Cassell relied in part on a 2003 Utah Supreme Court ruling in favor of Midvale in another dispute with Doctor John's.

However, McCullough has appealed Cassell's ruling to the 10th Circuit Court of Appeals in Denver, which means he still hopes to undermine Roy's ordinance and force cities to be more specific about which companies they will force to apply for special, sexually oriented business licenses.

The Roy case revolves around the meaning of the term "substantial portion" in the ordinance, referring to what portion of a company's business is dedicated to adult movies, books, magazines or toys. Doctor John's believes it does not meet the definition of a sexually oriented business, although it calculated that 25 percent of its floor space was devoted to the defined materials.

"The city of Roy has never told us what a substantial portion is," McCullough said. "We've told them if they tell us, we'll stay 2 percent below that. They prefer to keep it vague. They'd rather say we smell, look and feel like an adult business.

"I would think Provo is walking into possible litigation if they refuse to quantify the way Roy has."

Provo's ordinance does maintain the "substantial portion" language, but city attorneys believe the Roy and Midvale precedents will be upheld. They advised the City Council about U.S. Supreme Court and federal rulings that allow cities to regulate sexually oriented businesses because of the negative secondary effects they have on communities.

Studies prove those secondary effects include diminished property values and increased crime, illicit activities, drug use, drug trafficking and pornographic litter, Scott Bergthold, an attorney in Chattanooga, Tenn., told the council in a recent conference call.