There are no sexually oriented businesses (SOBs) in Warsaw at this time, but Monday night the Plan Commission heard a presentation on the need for proposed revisions to the city ordinance regarding them.

Another presentation will be given to the city council at its July 17 meeting, and then public hearings on the proposed changes will be held tentatively in August, according to City Planner Jeremy Skinner.

“This has been on my list of things to do  for a couple of years now. There have been a number of individuals that have requested that we look at the sexually oriented businesses ordinance, to make sure that it is up to date and still valid and addresses what we need to address to protect the city, not from the businesses themselves but from the potential effects that these businesses could have on adjoining property, making sure that we have an ordinance that puts them in the right places so that it is not detrimental to the city as a whole,” Skinner explained to the board.

Planning Department intern Patrick Jennings gave an presentation to the board on research he did regarding SOBs. The board also was given copies of the proposed ordinance changes, but did not take any action.

Before Jennings started his presentation, Commission President Tom Allen asked if there were any SOBs in the city. Skinner replied, “There is not directly, and as far as I’m aware there isn’t any that specifically would fall under this ordinance.”

Commission member Dave Baumgartner asked if there was a sexually oriented business proposing to come to town. He was told there was not.

Diane Quance, councilwoman, said the concern came from the fact that the city’s ordinance was “very vague” so it would “allow somebody to slip in here without us being able to do anything about it or protect the citizens impacted by it, so we need to be more specific in what we have set out. So our ordinance is too old and too vague.”

Skinner said since the city’s original ordinance on SOBs was written, there’s probably been over a dozen court cases involving them. He’s been following the court cases for some time, noting Angola was in a court battle for three years a couple of years ago. “That’s what we’re trying to avoid. We don’t want to get into that situation, so we want to do our due diligence, get an ordinance that has been reviewed and we feel can legally stand up to protect all, not just the surrounding property owners but also those who would look to operate such a business,” he said.

“And anyone employed by such business,” Quance added.

Jennings began his presentation by providing a definition of an SOB from the draft of the revised ordinance.

“A sexually oriented business means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult hotel or motel, adult motion picture theatre, adult theatre, nude or semi-nude model studio or sexual encounter center. No business shall be classified as a sexually oriented business by virtue of showing, selling or renting materials rated NC-17 or R by the Motion Picture Association of America,” he said.

Jennings said there are numerous studies on the secondary effects of SOBs and most share a common theme. First, the two most common types of secondary effects relate to crime and real estate. Second, he said, government should tread carefully to avoid free speech implications associated with the regulation of SOBs.

“It is much safer for a local government to use evidence that is easily measurable,”?he said. The two types of secondary effects that are most often associated with SOBs and are measurable are effects on crime rates and property values near SOBs. Jennings said since the city of Warsaw doesn’t have any SOBs, it must rely on the findings of other communities regarding secondary effects for its ordinance.

In his report, Jennings referenced a land use study of Phoenix, Ariz., that found the crime rate was higher near SOBs and one from Toledo, Ohio, that had the same findings.

He said based on Supreme Court decisions, there are several tests that outline ways to ensure ordinances are worded to avoid First Amendment infringement. “The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it seeks to implement a substantial government interest, directly advances that interest and reaches no further than necessary to accomplish the given objective,” Jennings said.

“If an ordinance is not in violation of First Amendment doctrine under one of the bases discussed above, then it is analyzed as a time, place and manner restriction,” he said.

He said there are several options for the city to amend its ordinance. “First and foremost, the city should consider documented issues with reference to sexually oriented businesses. ... Next, the council might consider limiting the hours of operation of sexually oriented businesses in order to keep traffic down late at night, which could potentially disturb residents who live nearby. It should also consider adding zoning restrictions to increase the distance between adult uses and schools, churches and other places of worship, residential areas, etc.”

Under the proposal, though, the city would permit SOBs in some commercial and industrial-zoned areas of the city with approval of a special exception.

He said the city also should consider requiring licensing of any future SOBs to promote the safety and well-being of employees and patrons.

“Finally, there should be more phrasing concerning the maximum amount of income and inventory that can come from sexually oriented material before a business is considered an sexually oriented business,” he said, which would provide an exemption for large corporate stores that may carry some adult materials but should not be considered an SOB.

In the revised ordinance, regarding location of SOBs, it states “a person shall not cause or permit to be operated, a sexually oriented business within 1,000 feet of a church or other place of worship; a school; a boundary of any residentially zoned district or any residential usage within a commercially/industrially zoned district whether single family, two-family or multifamily; a public park or a daycare.”

Quance asked if there was any research regarding the distance from youth agencies. Jennings said there was not any specifically mentioning that, but he had copies of numerous ordinances from around the country where communities saw a need to include other things.

Quance also asked, “Do any of them address things other than acts with human beings?” Jennings said he didn’t believe so, but they do include “sex acts moral and perverted. That’s usually how they phrase that.” Quance said the city may want to put something regarding that in its ordinance as “we’ve had some issues in the county with other things, and that might be something to include.” Jennings said that might be included under the perverted category, but the city could spell it out. Quance asked if there was any research spelling out what perverted was.

“If you go too far on some of these things, it can backfire,” Allen warned.

Quance agreed, but said there are some things that are illegal. Skinner said they could look into that. Jennings said they also may be covered under state or federal guidelines.