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Mass Lawsuit

City: $2M strip club lawsuit is 'frivolous'

Fall River — City lawyers are calling a lawsuit contending the city unconstitutionally and systemically banned strip clubs “frivolous" and without basis.

The city is seeking legal and related fees and dismissal of the case filed by Gary Lund of Swansea.

The six-count suit is slated for hearings in U.S. District Court, Boston.

“The defendant states that the plaintiff has failed to take reasonable steps to mitigate his damages,” city Corporation Counsel Steven Torres wrote in a defense conclusion filed last week.

The suit names the city, Zoning Board of Appeals members and Director of Planning James Hartnett as defendants.

Two weeks ago, Torres filed a response to Lund’s request for a preliminary injunction to nullify the city’s zoning ordinances controlling his strip club application.

A hearing date has not been set, he said.

The latest city filing is an item-by-item response to the $2 million suit that attorney Brian Cunha filed Feb. 9 on behalf of Lund. The suit cites a 13-year “ongoing battle,” alleging the city deliberately banned adult entertainment through its laws and actions.

For example, it said, “On Nov. 4, 2002, the Superior Court issued its decision that Fall River’s adult entertainment zoning ordinances violated the United States and Massachusetts constitutions in failing ‘to provide for a reasonable opportunity to open and operate an adult business in the city.’”

As a result, in 2003, the city abolished a section of its zoning laws prohibiting strip clubs within close proximity of schools, parks and churches.

As further examples of the dispute, the suit alleges that the city “admitted” that on Feb. 15, 2005, Superior Court Judge Robert Kane found a section of the zoning ordinance constituted a restraint on a different plaintiff’s rights under the Constitution’s First Amendment.

In the paragraph adjacent to that one, the suit says, “The motive for revising the above ordinance was to ban adult entertainment via use of zoning laws.”

In one of its eight defense affirmations, Torres wrote that the “defendants have no knowledge that said alleged acts were illegal and/or unconstitutional, nor were said acts clearly violative of plaintiffs’ rights at the time they were committed.”

Torres addressed the suit as Cunha contends it relates to the long legal battle the city had with Paul Viveros, owner of Oliver’s in the Fall River Industrial Park. Those actions resulted in many court appearances and the city paying more than $350,000 for his legal fees.

“The history is only relevant to the fact zoning provisions have not been struck down in the last two court decisions,” Torres said.

Torres said he believes the only relevant zoning laws impacting Cunha’s suit are two existing sections (86-88 and 86-201) regulating the zoning requirements and special permit, along with his two January appearances before the Licensing Board and ZBA.

The Licensing Board issued a permit, while the ZBA denied the several setback variances and the special permit.

Cunha also contends in the suit that sections 86-88 and 86-201 “are unconstitutional in that, in combination, they deny the plaintiff reasonable opportunity and accommodation to open and operate, within the city, an adult entertainment club.”

Indiana Screw

City Plans Legal Action Against Lingerie Shop
Secret Dreams' Rezoning Request Denied

INDIANAPOLIS -- The denial of a rezoning request for a live lingerie modeling studio clears the way for the city to take legal action against the business.

The owner of Secret Dreams at 3234 W. Washington St. applied for an adult entertainment license in September, but opened in December without the requisite inspections, the city told 6News' Jack Rinehart.

On Tuesday, the Metropolitan Board of Zoning Appeals denied a rezoning request for the business, which is currently zoned for automotive use.

The city contends that the modeling studio, which also sells adult videos and novelty items, is in violation of several zoning laws, including operating an adult entertainment business within 500 feet of a residential dwelling district, along with landscaping requirements and sign violations.

Community leaders spoke out at Tuesday's hearing against Secret Dreams and the clientele they said it brings to the area.

"What we disapproved of was the live entertainment, period. If you look at what's happened in other situations with live entertainment, things go bad," said Mike McCormick with the 40 West Business Association.

"One of the things we're fighting in that area is the prostitution and the issues that we have on Washington Street," said Patrice Duckett with the New West Coalition. "We feel that bringing in this type of business will only hinder us and the progress we've made."

The owner of the business did not attend Tuesday's hearing, but her attorney said she plans to fight the move through counsel.

The Department of Code Enforcement said it plans to prosecute Secret Dreams for building, zoning and licensing violations.

Texas Pole Tax

Texas Justices Weighing Free Speech Rights With 'Pole Tax'

AUSTIN, Texas — Oral arguments are slated for March 25 in a Texas Supreme Court case that may decide whether the government can tax content protected by the 1st Amendment.
The issue at hand is the legality of charging a $5-per-person “pole tax” to customers of Texas’ 115 strip clubs and other adult entertainment venues, which Texas justices have decided to weigh.

The state, which has collected more than $12 million in fees that have been held in escrow pending the final outcome of the case, lost a round at court when a judge struck down the pole tax in March 2008. The state lost again in June when a state court of appeals decided the tax’s fate.

The law, passed in the 2007 legislative session, originally directed revenues collected from the fee toward sexual abuse and violence treatment and prevention programs, but it has been mired in legal challenges since it took effect.

Last year, an alternative measure was introduced that would include a 10 percent tax to those sexually oriented businesses that charge an admission fee. But the measure was postponed nine months ago.

That bill was hammered out with the help of members of the Texas Entertainment Association, an industry trade association for Texas strip-club owners.

Texas litigator David A. Furlow, who has represented businesses in numerous cases involving 1st Amendment protections, told the Houston Chronicle that the central issue of the pole tax is whether the government can levy a tax on speech.

“When you say certain types of messages and certain types of entertainment can be taxed, you begin down a slippery slope that can allow the government to destroy a form of business by taxing it out of existence,” he said.

To defend the law, the government has been forced to argue that strip clubs lead to greater violence against women, a claim for which there is no evidence, Furlow said.

The Utah Supreme Court upheld a similar law last year, ruling that taxing strip club patrons did not have the effect of restricting expression and served “an important state interest.”

Wisconsin Beaver Hunt

City must update ordinances on porn, strip clubs
By Brian D. Bridgeford / News Republic

The city of Baraboo must update its ordinances regulating strip clubs and porn theaters to ensure they can be enforced if a prospective business owner challenges them, city officials heard Tuesday.

During the regular Administrative Committee meeting City Attorney Mark Reitz recommended they kick off a process to modify existing regulation of what are called sexually-oriented businesses.

Adult businesses are only allowed as a conditional use in the city’s Highway-Oriented Business District. The ordinances include 10 pages of restrictions on sexually-oriented businesses and states why the City Council believes they deserve extra regulation because of their potential negative affects on the city.

Both Reitz and Chief of Police Craig Olsen said there is no reason to believe a porn shop or gentlemen’s club is coming to Baraboo soon. However, any rules that will govern them must be in place before someone comes forward to apply for a permit.

Because the courts have ruled they are covered under constitutional protections of free speech and expression, the city cannot simply outlaw those businesses within its boundaries, Reitz said. And ramifications of recent court rulings mean Baraboo’s existing rules must be updated.

"You have to be careful and you have to have content-neutral regulations and you have to make sure you’re looking at deleterious effects," he said.

The city can argue for regulations based in part on the negative effects sexually-oriented businesses cause in larger communities like Baltimore or Seattle, Reitz said. However, they must be able to show bad effects for a small, rural community as well.

"We’ll have to do some of our own investigation as to what are the secondary impacts that these types of businesses would bring to the community," he said. "Tonight we don’t have a (proposed) ordinance, you’ll have to be led in the drafting of your ordinance as to where the evidence takes you."

Administrative Committee Chairman Eugene Robkin said he believes most Baraboo residents would prefer the City Council simply forbid such businesses. However, he agreed they must instead work to write new ordinances that will limit the negative effects of sexually-oriented businesses as much as possible.

"I think it’s hopeless to expect they’re not going to try to come into the city," he said. "We can’t do retroactive ordinances, so we need to be prepared."

Mayor Patrick Liston noted the town of Lyndon Station in Juneau County and Caledonia Township in Columbia County tried to restrict adult businesses and failed because their laws weren’t written well enough.

"They ended up paying attorney’s fees for both of those adult entertainment venues," he said.

Committee members directed Reitz and Chief Olson to begin research in preparation for re-writing the ordinances.

"Some of the surrounding communities are going to have experience with what’s going on and are there secondary effects and what are they and what regulation have they done and what’s reasonable," Reitz said.

"It has to be within the case law and it’s going to be tough," Robkin said.

Information about the city of Baraboo, including contact information for city officials and departments, city ordinances, meeting agendas and minutes may be found online — http://www.cityofbaraboo.com.

Memphis Mess

Appeals court rules for Shelby County restrictions on strip clubs

An appeals court decision Tuesday clears the way for Shelby County to put extensive new restrictions on adult businesses, bringing Memphis one step closer to a radical transformation of the area's sexually oriented businesses.

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati refused to rehear the case, according to a one-page document provided by Shelby County Commissioner Mike Ritz, a backer of the new rules.

"Life is good if you live long enough!" Ritz wrote in an e-mail message to reporters Tuesday afternoon.

The appeals court action affirms a September decision by U.S. District Judge Bernice Donald, who ruled that the county's restrictions are constitutional.

She wrote that courts have upheld rules that aim to reduce crime and other negative side effects of adult businesses, without attacking the right to free expression.

Ritz has said he believes most such clubs in Memphis will close if the restrictions go into effect.

The strip clubs themselves have argued in court filings that the new rules passed by the County Commission in September 2007 are meant to shut them down.

The ordinance would eliminate alcohol in the clubs, require all workers in such businesses to get licenses, and would keep performers at least 6 feet from customers and each other.

It would apply to all sexually oriented businesses, such as adult bookstores, and massage parlors, not just strip clubs.

The new ordinance faced an immediate challenge from owners of several strip clubs: Christie's Cabaret; Downtown Dolls; The Gold Club; The Jet Strip; New York, New York; Platinum Rose, and The Pony. The clubs argued the law violates First Amendment rights to free speech.

"The law will unconstitutionally diminish the availability of sexually candid dance performances in the city of Memphis," their challenge said.

The clubs could ask the U.S. Supreme Court to hear an appeal, Asst. County Atty. Robert B. Rolwing wrote in an e-mail.

"However, as you know, the Supreme Court chooses which cases it will hear, and it is highly unlikely that the Supreme Court will take this case," he wrote.

The county will now ask the Court of Appeals to lift an injunction that blocks enforcement of the rules, Rolwing wrote.

Efforts to reach lawyers for the strip clubs were unsuccessful Tuesday afternoon.

Separately, the Shelby County Commission is considering an ordinance that would keep new sexually oriented businesses at least 1,500 feet away from family entertainment centers. The commission must vote on the measure twice more for it to become law.

Last minute review

Strip club to open along I-405; Renton to review adult-use ordinance

A strip club – Club Sin Rock operated by a Las Vegas company – is getting ready to open near the intersection of Interstate 405 and SR 167 in Renton.

The opening has prompted the City of Renton to review its adult-entertainment regulations (title 5) that haven't been updated in more than 25 years.

The City Council Monday night imposed a a six-month moratorium on new adult uses while the review is under way. The moratorium is in effect, but the city is required to hold a public hearing, which is 7 p.m. March 22 at City Hall.

The moratorium doesn't affect the Club Sin Rock, which features nude women performing on a stage at least six feet away from the nearest patron. Like all strip clubs, it doesn't serve alcohol.

This is the first strip club ever in Renton, although in the mid-1970s a topless club called Toodie Twills operated for a couple years on Main Avenue until it was shut down.

The strip club – an owner prefers the term night club or gentleman's club due to changing attitudes toward such entertainment – has met all the regulatory and zoning requirements to locate in Renton.

"We would like to be treated like any legitimate business operating in the city," said Tim Lyons, a principal in Sin Rock LLC, the owners.

Renton is literally at the epicenter of the legal debate over where to locate adult uses.

Because of the landmark decision in 1986 by the U.S. Supreme Court in Renton vs. Playtime Theatres, cities can use zoning to control the location of adult theaters.

Any opening date for Club Sin Rock hasn't been finalized. Remodeling of the interior is continuing and the owners are continuing to hire workers, including the entertainers. The club expects to have between 50 and 75 workers.

Minimum age to work at the club or to come inside is 18 years old.

Lyons said the owners didn't "target" Renton for a Seattle-area location. But the visibility of the Club Sin Rock sign next to Interstate 405 "had a lot do with our location selection."

The sign is lit, but is not neon. It will feature the words, live nude showgirls, with the image of a woman's face but not her body.

The club is on Southwest 16th Street in a commercial and office part of Renton's valley floor designated for such establishments. Such adult uses are prohibited in residential areas and within 1,000 feet of places where kids and families frequent, such as schools and parks.

But, the valley area near the strip club has changed dramatically in the roughly 25 years since the adult entertainment ordinance was adopted, according to city officials. A nearby government agency and a major Renton employer have day-care centers for employees.

Because of the changes in the commercial makeup, the city wants to decide whether "we should have different restrictions," said Mayor Denis Law.

"The thing we would fear is that we would have four or five of those pop up on East Valley Road," he said.

Law said he's "sorry" to see the strip club locating in Renton. Generally speaking, from what he has read such clubs often attract criminal activity, including racketeering and prostitution, that continues to flourish despite police crackdowns.

"I don't know why this is going to be any different," Law said.

He wonders how the club can make a profit when the entertainers are required to remain six feet from the patrons.

But Law said he recognizes such adult uses are protected free speech.

Law plans to work with police and Renton's city attorney to explore a way to put "greater teeth" in the law to allow the city to shut down a strip club if there is illegal activity and offenders are prosecuted.

Alex Pietsch, the administrator of the Department of Community and Economic Development, said a strip club is not the type of business he would choose for Renton.

"It's not part of our economic development strategy," he said.

Lyons said he's sensitive to such concerns as expressed by Law, but the business will be professionally run. A similar club in Anchorage has had fewer than a half-dozen police complaints, he said. "We have an impeccable record," he said.

The Renton club has been in the planning process for about a year. "The city has made us jump through every hoop," Lyons said.

Once the club opens, police, code enforcement and other agencies will continue to monitor its operations to ensure it meets city regulations.

The business, the manager and the entertainers are all required to have a license.

The raised stage with its three-foot is the center of the club's interior. While the finishing touches haven't been made, two slanted pillars frame the stage. Water is already running from a fountain in the back. The walls are covered in cloth.

"It's a Las Vegas atmosphere," Lyons said. "It's very classy."

The seating extends to the sides of the stage, but there are no private rooms.

"We don't have private rooms," Lyons said. "We don't run a brothel."