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Adult Ordinance Will Face Challenges
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.
In 2004, with the help of Scott Bergthold, the same attorney brought in to help forge the
The regulations are nearly identical to those proposed in
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 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
Some municipalities have been successful, such as
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
The Black Hills Citizens for a Better Community first expressed its concern with
“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.
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:
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
“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.”
“I’d have to sue,” he said. “I’d have no choice.”
“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.”