City Officials Choose Strip Stake

March 10, 2006
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GRAND RAPIDS — Private money will fund a public court battle if city commissioners adopt a new anti-nudity ordinance, as they are expected to do, on April 11.

Pledges and contributions made to the Black Hills Neighborhood Association has staked the city with a reported $93,000 for its defense fund in an all but certain legal tussle the city will find itself in with owners of adult entertainment venues like strip clubs.

“My only concern at this point is, will we be strapping the taxpayers if litigation should arise,” said Mayor George Heartwell prior to the commission’s vote that set March 21 as the public hearing date for the new ordinance.

The city spent roughly $250,000 a few years back when it failed to regulate an adult book and video store.

“I want to make sure that we know what we’re getting into if we go ahead with this,” added 2nd Ward Commissioner Rick Tormala, who noted that the potential plaintiffs in any legal action have some very deep pockets.

Before setting the ordinance’s hearing and adoption dates, Heartwell wanted an assurance from City Attorney Phillip Balkema that the money raised by the neighborhood group was actually available for the city to use. Balkema said if it wasn’t, he would let commissioners know, and he added that numerous donors did not want to be identified as contributors to the fund.

“Many of the donors requested that their names not be published,” he said.

Judy Rose, of the neighborhood association, said her group would collect the pledges that were made even if Mark London sells his Market Avenue building, where he plans to open his new club. Heartwell told the Business Journal that the ordinance would also go forward if London sells, even though his club was the impetus for the regulation.

Balkema also said the city would have a better idea of its potential legal costs when Scott Bergthold comes here for the hearing. Bergthold is an attorney who helped design the city’s ordinance, something he has done in other locales across the country.

A goodly portion of the ordinance bans nudity due to the adverse “secondary effects” that sexually-oriented businesses allegedly present a community, such as increased drug trafficking and prostitution. That claim was also prominent in an ordinance the Southgate City Council approved to ban nude dancing at a coffee and juice bar located in the southeast Michigan city.

After a five-year court battle, U.S. District Judge Anna Diggs Taylor struck down the ordinance last month. Taylor, with the U.S. District Court of Eastern Michigan, ruled that the city “failed to present any evidence linking expressive nudity in high-culture entertainment to harmful secondary effects.”

Taylor also said the ordinance violated the First Amendment because it was “substantially overbroad.” Southgate city officials said they would not appeal her decision.

But the Southgate order banned public nudity across the board, including at art groups’ performances, rather than limiting it to sexually-oriented businesses as the city has said its regulation is written. The city ordinance was patterned after one adopted in Louisville, while an Akron, Ohio, order served as the example for the Southgate ban.

In a nutshell, the local ordinance changes behavior. It requires dancers to wear pasties and a G-string, be on a stage at least 18 inches off the floor, be at least six feet from the nearest customer and not have any contact with a patron. All dancing must be done in a room that is a minimum of 600 square feet in size.

“This ordinance affects conduct and not zoning,” said Balkema.

Balkema said the ordinance would become effective 30 days after commissioners approve it, likely in the middle of May, and it would also apply to existing businesses and not just new ones. Owners would be given 180 days to make the physical changes to their places of business as required by the ordinance.    

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