Federal lawsuit challenges Fort Wayne’s adult-business law, rejection of proposed downtown strip club

Did city officials act unfairly and unconstitutionally when they rejected a plan to reopen the former Rabbit's club on South Calhoun Street? A new federal lawsuit insists they did. (File photo by Kevin Leininger of News-Sentinel.com)
Club 44 opened in the former Stewie's location on Coldwater Road last year. (News-Sentinel.com file photo by Kevin Leininger)
Dino Zurzolo

The city’s refusal to allow a downtown strip club to reopen violated the applicant’s right to free speech and equal protection under the law, according to a lawsuit filed Thursday in U.S. District Court in Fort Wayne that also seeks to void city codes governing adult businesses.

Dino Zurzolo, owner of 1407 LLC, is asking the court to overturn the Fort Wayne Board of Zoning Appeal’s June 21 decision upholding a previous ruling by Zoning Administrator Kim Bowman denying occupancy of the former Rabbit club at 1407 S. Calhoun St.

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The lawsuit, filed by attorney Michael Murray of Cleveland, reiterates the arguments made before the BZA: that city officials arbitrarily denied Zurzolo the same favorable decision afforded owners of the former Stewie’s club at 4030 Coldwater Road when they were allowed to reopen as Club 44 last year.

According to the lawsuit, Stewie’s operated between April 1993 and November 2015 before being sold to new owners in September 2016, when B&B Holdings successfully applied for a certificate of use to resume operations as an adult nightclub. But Club 44 did not open until April 2017 — 17 months after Stewie’s demise.

That’s crucial, Zurzolo argues, because Bowman denied occupancy of the Calhoun Street site on the basis that it had been closed for more than one year and therefore “abandoned.” Zoning laws would not normally allow a strip club on the property, but because Rabbit’s (and earlier Poor John’s) had operated there for years, adult use could have been allowed to continue under a “grandfather” exception had abandonment not occurred — the same exception cited in allowing Club 44 to reopen.

Zurzolo insists the 12-month limit was met in his case as well. A month after Rabbit’s lost its lease in October 2016, new owner Ft. Wayne’s Finest obtained building permits and made more than $230,000 in improvements, with plans to reopen before November 25 the following year. “At no time . . . was there any intention expressed . . . to abandon or relinquish the valuable non-conforming use status of the property as an adult cabaret/nightclub,” the lawsuit states. “Indeed, all communications with the city expressed precisely the opposite intention.” Ft. Wayne’s Finest never reopened, however, and Zurzolo acquired the property in February of this year, spending another $75,000 on upgrades.

In June the BZA denied Zurzolo’s request for occupancy after attorney Pat Hess argued on Bowman’s behalf that on Dec. 1, 2017, she had informed Ft. Wayne’s Finest that more than a year had passed since Rabbit’s closed and that a strip club could no longer operate there. An appeal would have had to be filed within 30 days and that never happened, he added.

Zurzolo, however, said he was never told about Bowman’s Dec. 1 letter. And Murray told the BZA Bowman had no legitimate reason to write the letter because Zurzolo had not yet submitted an application to operate there. “She jumped the gun,” he told the BZA. “This case is no different than Club 44.”

The city’s inconsistent decisions violated Zurzolo’s right to equal protection under the law guaranteed by the 14th Amendment, states the lawsuit, which also argues laws regulating sexually oriented businesses violate the First and 14th amendments by denying free speech and restricting operations in a way not “narrowly tailored to further any governmental interest.” Under city law, sexually oriented businesses are allowed to operate only in areas zoned for intensive commercial use and face other restrictions on locations, such as requirements that they be at least 750 feet from any religious institution or school and cannot be within 1,000 feet of each other.

Zurzolo, who states the city’s “misconduct” has caused him “irreparable harm,” is also seeking $500,000 in damages.

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