KEVIN LEININGER: County’s effort to regulate sexually oriented businesses may see city try again

The owners of Club 44 on Coldwater Road made their feelings about City Coucncilman Russ Jehl clear after he unsuccessfully proposed a curfew on sexually oriented businesses. Now the County Commissioners have done the same thing. (News-Sentinel.com file photo by Kevin Leininger)
Nelson Peters
Kevin Leininger

Two years ago, some City Council members tried to impose a midnight-to-7 a.m. curfew on sexually oriented businesses to combat the crime they insisted was linked to the “toxic mix” of late-night booze and sex. A deeply divided council ultimately tabled the proposal but by an 8-1 vote a month later approved a bill targeting “chronic problem” properties of all sorts, whether sex-related or not.

Now, in the wake of sweeping new legislation intended to limit or regulate sexually oriented businesses and live sex acts in unincorporated Allen County and most of its small towns, Fort Wayne officials are apparently taking another look at the issue.

“Swingers’ clubs are not addressed (under current city code), and that loophole will be addressed,” said City Councilman Russ Jehl, R-2nd, a primary proponent of the 2017 curfew proposal who said he would be briefed by city attorney Carol Helton this week about how best to craft regulations that will pass constitutional muster now that strip clubs can be considered practitioners of free speech guaranteed by the First Amendment. Swingers’ clubs are not, however, and Jehl said some appear to be operating in Fort Wayne right now.

“I’m glad the city and county are cooperating,” said Jehl, who doesn’t necessarily expect to propose another curfew. “My concern was the proliferation of these things. Rabbit’s not opening up was a good thing.”

Rabbit’s was a strip club at 1407 S. Calhoun St. that had closed in 2016 and was later bought by Dino Zurzolo, who planned to reopen it under a “grandfather” clause contained in local zoning law. But after the city’s Board of Zoning Appeals denied his request by a 4-0 vote in 2018 Zurzolo sued, arguing the city had allowed the former Stewie’s on Coldwater Road to reopen as Club 44 the previous year. Zurzolo lost his case on what was essentially a legal technicality — the Rabbit’s building is now for sale — but the exercise identified potential gaps in local ordinances that needed to be addressed, according to Paul Blisk, deputy land use director for the Allen County Department of Planning Services.

Hence the new ordinances approved by the County Commissioners last month, revised county zoning requirements for sexually oriented businesses to be considered by the Plan Commission next month and, possibly, new city codes as well.

Despite the legal victory over Zurzolo and the fact that Blisk is unaware of any sexually oriented businesses in rural Allen County, Nelson Peters said he and fellow Commissioners Therese Brown and Rich Beck felt pertinent regulations could be improved (for all but Fort Wayne, New Haven and Leo-Cedarville, which control their own zoning) by tighter regulations and definitions, penalties for non-compliance, a stronger prohibition on live sex acts and a more definitive understanding of where sexually oriented businesses can and cannot operate.

Under the proposal to be considered by the Plan Commission, sexually oriented businesses would be allowed only on land zoned for general industrial use, and (similar to existing city code) would not be allowed within 1,000 feet of a residential district, religious institution or school. But unlike City Council, the Commissioners voted to limit sexually oriented business’ hours of operation to between midnight and 6 a.m. Sexually oriented businesses include such things as “adult” arcades, book stores, motion-picture theaters or sexual device shops. No actual sexual contact is to take place, distinguishing them from places in which to view or participate in live sex acts, which are now prohibited in the county. Violations can bring a fine of $2,500; $7,500 for subsequent offenses.

Sexually oriented businesses in the county must now pay $100 for an initial license and $50 for annual renewal. Employees must pay $50 for an initial license and $25 annually for renewal, with the county Building Department responsible for inspection and enforcement of regulations so specific I needed a cold shower after reading them.

The Commissioners’ rationale is similar to City Council’s justification for the proposed curfew: “Sexually oriented businesses . . . are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature . . . and are often associated with crime and adverse affects on surrounding properties.”

It wasn’t so long ago, in fact, that Fort Wayne was home to numerous seedy adult cinemas, book stores and massage parlors. A crackdown by police and prosecutors removed most of them, and good riddance. Still, I also like the idea of targeting documented problems, not potential ones.

All in all, though, county officials deserve credit for proactively working to avoid problems before they start, and it will be interesting to see what if anything their city counterparts come up with — and whether this latest effort can withstand the inevitable legal challenge.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355.