City Restricts Sex Shops; Admits Law May Be Overturned

Matt O'Conner
FARMINGTON, N.M. — The City Council has adopted an ordinance limiting where businesses that sell adult-oriented products can operate, despite the fact that the City Attorney’s Office admits it lacks legal merit.

The ordinance makes it illegal for sex shops to open within 1,000 feet of a motel or bar, which Assistant City Attorney William Cooke says will severely limit the sites where sex shops can locate to only 1.3 percent of commercially available space in the city.

Cooke has already speculated that the new rules will likely never go into effect.

Admitting that the ordinance is "not only a restriction of trade, but also a restriction of speech," Cooke said it would likely be challenged in court and not hold up to judicial review.

Like many communities across the country, Farmington drafted the law with assistance from the American Family Association. The AFA often offers sample ordinances to communities like Farmington.

Mike DePrimo, an attorney for the AFA, said communities have the right to restrict the locations of sexually oriented businesses. But as XBiz has reported, the majority of local ordinances the group has helped communities get passed have eventually been overturned in court, often at great expense to the communities involved.

DePrimo said cities are safe as long as they can show that sexually oriented businesses are causing adverse secondary effects, including “increased crime, increased disease or blight.”

City Council member Dan Darnell asked Cooke to conduct a study to determine whether crime did, in fact, increase near the city’s existing adult business, Dollar Video, after it opened there five years ago.

Cooke claimed that his research found the number of criminal incidents in the immediate vicinity of Dollar Video had increased from an average of 8.15 per month to 23.4 per month. However, he added that the city would have to conduct a "massive sociological study" to determine whether the crimes were directly related to the video store or other factors, including the opening of a bar in the area.

"It is not proof beyond a reasonable doubt, nor is it probable," Cooke said.

Still, Darnell found the numbers convincing enough to push the stricter law in order to "control that element" who patronizes sex shops.

At a City Council meeting on the matter, opponents of the ordinance, including Council member Mary Fischer, argued that the law is so restrictive that it effectively makes it impossible for sex shops to operate in Farmington and, therefore, won’t stand up to judicial review.

Fischer said that she is not a fan of adult entertainment, but she is opposed to passing an ordinance that has no chance in court.