Adult Ordinance Will Face Challenges

March 3, 2006
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GRAND RAPIDS — Although Grand Rapids city attorneys have spent over a year and thousands of dollars with outside counsel on the city’s proposed adult entertainment regulations, there is no certainty that the ordinance will hold up in court.

In fact, the model for the ordinance has yet to pass muster with the First Amendment, wasting years and hundreds of thousands of dollars for the Louisville Metro Council. Louisville, Ky., has been trying to regulate the adult entertainment business in one way or another since the mid-’90s. An early ill-fated effort resulted in an injunction that allowed the city’s 14 topless cabarets to offer full-nude dancing for a short time.

In 2004, with the help of Scott Bergthold, the same attorney brought in to help forge the Grand Rapids ordinance, Louisville finally adopted a tough ordinance that it felt would hold up in court.

The regulations are nearly identical to those proposed in Grand Rapids. It requires that dancers stay at least six feet from patrons and prohibits them from accepting tips. In addition, it requires them to wear pasties and G-strings, at the minimum. It also requires that peep-show booths be constructed in such a way that would allow employees to see inside the booths at all times.

The only differences are that when a Louisville club’s liquor license expires, it is be prohibited from applying for a new one, and clubs are required to close at 1 a.m., rather than 2 a.m.

The Louisville ordinance is now in its third court, the Kentucky Court of Appeals. One regulation, the no-touching clause, has been thrown out at every level. In similar form, initiatives in Minneapolis, Cincinnati and even Kalamazoo have failed.

“The First Amendment can be a very naughty little creature to pick through,” said John Allen, an attorney at Varnum Riddering Schmidt & Howlett LLP and former Constitutional law instructor at the University of Michigan. “As the city’s own experience has shown, it has often stood up to void many statutes and ordinances in this particular area of the law.”

Some municipalities have been successful, such as Indianapolis and Los Angeles, but with different proposals.

Grand Rapids recently lost a court battle with the Velvet Touch adult book store, costing the city $150,000 for legal representation and $125,000 to pay the attorney fees of Velvet Touch. Following that decision, the city spent another $125,000 rewriting the zoning code and the proposed ordinance.

With its current budget crisis, the city had chosen to stand pat as Mark London, the proprietor of Sensations strip club near Centerpointe Mall, began plans to convert the former Sennett Steel building at

234 Market Ave. SW
into Showgirls Galleria, a full-nude “juice bar” and retail shop.

The Black Hills Citizens for a Better Community first expressed its concern with London’s project two years ago.

“We were concerned that the elementary school where our children go to is only eight blocks from it, and the bus station our high school kids transfer at is two blocks from it,” said Black Hills Executive Director Judy Rose. “And we were very concerned about it being a totally nude club.”

Rose said the group felt that such a place would lead to prostitution and blight infesting her neighborhood, though it was roughly a mile and two neighborhood associations away.

When the city failed to respond, the neighborhood association partnered with the Allegan County-based Michigan Decency Action Council to develop a proposal that would form the basis of the proposed ordinance. The city was supportive, but reluctant to engage in another lawsuit.

Here the initiative took an unusual turn, as the neighborhood association and its nonprofit partner agreed to raise the necessary funds to defend the law.

“Anytime there is a combining of private funding and public purposes, there is an opportunity for it to be problematic,” Allen said. “Sometimes that mixture offends Constitutional principles by doing things for one citizen or a group of citizens it wouldn’t do for the rest.”

This is evident in some portions of the ordinance, particularly in how it applies to parallel uses. As an example, the planned downtown JW Marriott hotel is likely at some point to include many of the activities deemed illegal by the ordinance.

According to a recent report in The Washington Times, the Marriott Corp. is the nation’s largest purveyor of pornography. CBS News reported that as much as 70 percent of the in-room profits at hotel chains like Marriott, Hilton, Hyatt, Sheraton and Holiday Inn is derived from the sale of in-room, pay-per-view adult films. On the same note, a bachelor party could easily feature an exotic dancer.

According to Assistant City Attorney Elizabeth White, the ordinance has no provision for such uses. It is intended solely for sexually-oriented businesses, defined by zoning ordinance as an establishment with 30 percent of its merchandise portraying specified sexual activities or anatomical areas.

“Yes, it’s the same use, same activity. We’re not saying you can’t watch pornography,” White said. “We’re saying you can’t have doors on a peep show booth, in order to protect public health, safety and welfare. The activities that go on in those booths are a danger to that.”

The ordinance does not specify what activity occurs in a peepshow booth other than watching pornography.

“You can specify anything you want, but when you try to define it in words, it gets real complicated,” Allen said.

Similarly, the Louisville ordinance was granted its latest appeal because the city could not prove sufficient harm to the public good to justify enforcement. This may be the ordinance’s greatest stumbling block.

Despite notions to the contrary, the negative secondary effects of adult entertainment pale compared to that of traditional taverns and bars. According to the Louisville Courier Journal, peer reviewed studies show that up to 70 percent less crime occurs around these venues. Insurance Journal recently suggested that agents underwrite gentlemen’s clubs because they are better risks than their more “sophisticated” and “refined” counterparts.

While there are no pertinent statistics readily available, the areas in the city commonly associated with prostitution and blight are not home to sexually oriented businesses — with one exception:

South Division Avenue
at
Burton Street

Even Mayor George Heartwell recently told the Business Journal that he could find no negative impact on the neighborhoods surrounding Sensations or Parkway Tropics, a topless bar on

Lake Michigan Drive
on Grand RapidsWest Side

“If the city did some research, I think they’d find that we’ve had less calls to police and other problems than any other nightclub in town,” said Edward Sayfee, co-owner and general manager of the Parkway Tropics. “Not just our type of club — all clubs. We’ve been in business for over 55 years, and I can’t understand why they feel a need to regulate us now.”

Sayfee acknowledged he was only partly familiar with the regulations. No one from the city had contacted his establishment to discuss the possibility of regulation. Upon hearing the proposed six-foot rule, he said he would have to redesign his establishment. Capacity would be lower, but he was more concerned about how the change would affect dancers’ income.

“It would affect the girls’ tips, and the customers wouldn’t appreciate it much,” he said. “It’s kind of ridiculous and a little childish. We want to be a major city? Well, my biggest nights are convention nights. People like this kind of entertainment. Just because you don’t like it, doesn’t mean you should be telling other people how to spend their money.”

London said Sensations would adapt, but his Showgirls Galleria would be out of business.

“I’d have to sue,” he said. “I’d have no choice.”

London has also suggested that he is considering legal action against those who donated the $93,000 to Rose’s fund, something Allen believes, in theory, he could do.

“If someone — and I’ll use a strong word — conspires to cause a violation of the law or injure someone, than all the members of that conspiracy can be held personally liable,” Allen said. “I’ve never heard of it happening, but I’ve never heard of anything like this happening either.”

Of perhaps greater concern, Allen noted, is the precedent it could set if the city accepts funding for this purpose at all. Much of the public already perceives that elected officials are “bought” through campaign contributions; this would only strengthen that conviction. Also, it opens up the opportunity for other Constitutionally-iffy ordinances.

“How about if Madeline Murray O’Hara came in and said, ‘Let’s ban all the churches,’” Allen speculated, using the infamous atheist as an example. “I know we’ll have a First Amendment problem, folks, but don’t worry, I’ll fund the defense of it.”    

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