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KEVIN LEININGER: Lawsuit has new strip-club bill in limbo, but why not enforce laws already on the books?

City Council's effort to regulate strip clubs and other sexually oriented businesses is on hold pending a legal challenge. ( News-Sentinel.com file photo)
Kevin Leininger

When City Council voted 5-1 in August to impose a series of new regulations on strip clubs and other sexually oriented businesses, supporters predicted the ordinance could withstand any court challenge because it was modeled on bills that had already passed legal muster elsewhere.

That confidence may still prove justified, but it hasn’t prevented a lawsuit that, at least for now, seems to have created a stalemate that safeguards the right to pursue happiness even in the form of a lap dance.

Filed in September by Showgirl 1, Showgirl III and Brandy’s Lounge, the lawsuit does indeed offer the now-familiar argument that stripping is a form of expression and is, as a result, constitutionally protected by the same First Amendment intended to safeguard free speech, religious liberty and an independent press. But the clubs’ attorneys offer several other objections Allen Superior Judge Jennifer DeGroote is likely to consider during a Jan. 14 hearing on dueling requests for injunctions that would allow or prohibit the ordinance’s enforcement.

One of the clubs’ tactics, in fact, is to remind DeGroote of the legal principle behind her June decision upholding a challenge of the city’s “pay to play” law. The city, DeGroote ruled, had no authority under state law to regulate political contributions. The lawsuit makes a similar argument when it comes to city regulation of establishments that serve alcoholic beverages.

The suit also contends the local ordinance defines “nudity” more broadly than state law does and contends the clubs would be forced to “undertake extensive and costly remodeling . . . and during that forced remodeling the plaintiffs’ business will be affected, either by limitations where patrons may be seated, where entertainment can be performed, by inconveniencing patrons and by the presence of dust, dirt and construction equipment and debris.”

Among other things, the ordinance would establish minimum lighting standards and, according to the lawsuit, require dancing to “take place on a stage that is at least 18 inches tall, that every performance be distanced from the audience by at least six feet and take place in a room that is at least 600 square feet and in the presence of the operator.” Nobody’s going to pay good money for a lap dancer six feet away, which is probably the intent.

Police would enforce the ordinance — something the lawsuit contends would result in unconstitutional warrantless searches.

As I reported in August, council voted to regulate sexually oriented businesses after the city sent a private investigator into adult clubs and discovered several violations of the state’s public nudity statute. Still, despite my personal misgivings about the negative aspects of adult entertainment, the approach taken by council and the administration of Mayor Tom Henry seems a bit inconsistent.

Just for starters: On the very night council voted to regulate strip clubs it defeated a bill that would have banned so-called swingers clubs. In other words, businesses profiting from partially clothed dancers are regulated far more heavily than those profiting from actual sexual intercourse. And the Champagne Club at 2710 Nuttman Ave., which is deemed by the city to be out of compliance with zoning laws, had been given until Sept. 10 to close by Plan Commission attorney Robert Eherenman but, so far as I know, is still operating.

Then there’s this: After a different proposal to regulate problems allegedly caused by sexually oriented businesses failed two years ago, council instead passed an ordinance targeting “chronic problem properties” of all sorts. But, according to the lawsuit, “none of the plaintiffs have been notified that their businesses are commercial chronic properties. What’s more, in the event the (chronic property ordinance) is invoked, the city will work with the property owner to remediate the problem. By way of contrast, the challenged ordinance subjects plaintiffs to substantial monetary penalties, as well as the suspension and revocation of a license to engage in constitutionally protected activity.”

One might wish the Supreme Court had not made Patrick Henrys out of pole dancers, and whether this issue is worth the thousands of taxpayer dollars it will cost to litigate will be a matter of legitimate debate. The city, for its part, has told the clubs it does not plan to enforce the ordinance before Jan. 28. But if the city’s only swingers club and some strip joints are violating laws already on the books, why can’t we start there no matter what DeGroote and any appeals court(s) ultimately decide?

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.

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