TEA – Fears that a new state law could draw a legal challenge drove the city of Tea to impose a two-year moratorium on any new adult-oriented businesses last week.
Adult businesses became a sore subject last year after the opening of Olivia’s Adult Superstore. Because Olivia’s moved into an existing building in a commercial zone outside city limits, there were no public hearings until after the opening. At one council meeting last summer, more than 150 people were on hand to voice their concerns.
The new state law, which regulates the hours of all adult businesses in the state and restricts the location of any new business, was sponsored by Rep. Manny Steele of District 12.
As written, the statute prohibits the businesses from locating within a quarter mile of any school, child welfare agency, public park, public recreation facility, residence or place of worship. It took effect July 1.
“We don’t want to be the test case,” said Tea City Attorney Todd Meierhenry, who thinks the law will be challenged. “We don’t want it to be someone versus the city of Tea.”
The city also proposed forming a committee to study the effects of the new law and determine what local regulations it might need.
Given the competition from Olivia’s and the restrictions placed on new adult businesses, Mayor John Lawler said he doubts another business would look to Tea.
“For something to come into a town like Tea, it would be pretty tough,” Lawler said.
Still, he said, the city does not want to be the focus of any legal challenge. The moratorium, he said, ensures that the city will stay out of court and have a chance to write its own restrictions in the event the state law is struck down.
David Eliason, owner of Olivia’s and Annabelle’s Adult Super Center in Sioux Falls, said he doubts the bill would stand up to a court challenge.
“HB 1151, in my opinion, is a zone-out,” he said.
Eliason isn’t too worried about the moratorium but doubts any new adult stores would want to open in the town.
“I think it’s wonderful,” he said. “I’m glad to see the city leaders in Tea are taking a proactive stance with their zoning regulation.”
Meierhenry told the Tea City Council that the city has the right to regulate such businesses with setback and parking requirements but cannot ban them.
The law’s details are what concern Meierhenry. The quarter-mile restriction is measured from the edge of a business’s property line in every direction. If a proposed adult business’s property line touches the property line of land with a house, church or school on it, that business can’t open.
Meierhenry said such a restriction essentially bans the businesses – especially in eastern South Dakota.
“You’d have a hard time finding a place that wasn’t a quarter mile from something,” Meierhenry said.
Steele said he brought his bill to Attorney General Larry Long’s office before presenting it to legislators.
“They didn’t come out and say, ‘We think we can defend that in court,’ but they felt comfortable with it,” Steele said.
As a result of concerns about local control, the bill allows counties and municipalities to enact their own regulations.
Steele said Tea’s decision to appoint a committee is a wise one. If the new law needs tweaking, he said he hopes to use input from municipalities to make those changes.
“The purpose of my bill is to help those cities out, not get them into trouble,” Steele said. “If there needs to be some adjusting done on the bill, that’s all part of the process.”
The first reading of Tea’s resolution to form a committee will take place Monday.