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Erotic City Loses Latest Battle Against Anti-Adult Ordinance
30/03/2009 - By By Mark Kernes
BLUE SPRINGS SUMMIT, Mo. - Chief U.S. District Judge Fernando Gaitan ruled yesterday that a Jackson County adult business ordinance is not facially invalid despite its stringent hours of operation, doors-off and anti-nudity requirements.
"[The] county makes clear that it does not intend to suppress speech or expression," Judge Gaitan ruled, "but rather seeks to combat the harmful effects from such businesses."
However, Sharlie Pender, the attorney for Erotic City, a combination adult video/novelty store located at 8401 E. Truman Rd., with an adult cabaret on its second floor, said that the ruling actually reflects a substantial win for the business.
"In essence, it was a major victory," Pender told AVN. "Back in January of 2008, Jackson County passed a very, very onerous adult business licensing scheme. That was challenged all over the place. Many, many issues were raised. In response to that, Jackson County went back to the drawing board and they addressed every issue that would have kept my clients out of business, and they then passed an amended ordinance taking into account all the challenges and failings from their initial ordinance.
"The most onerous one was the licensing scheme," he continued, "where anybody that had an interest greater than 10% had to make application in order for the business to have a license. If you have nine people saying, 'Hey, we're making money,' and one of them says, 'I'm opposed to this type of thing' [licensing], you could never operate your business. This business has seven different individuals, so nobody has to be licensed."
Considering that the bulk of the ordinance dealt with the licensing aspects of adult businesses, getting those portions significantly modified was an admirable feat.
The current ordinance essentially follows the boilerplate language promoted by pro-censorship organizations such as the National Family Legal Foundation, whose guidebook "Protecting Communities From Sexually Oriented Businesses" often serves a guide to municipalities seeking to restrict adult uses, with additions drawn from court decisions since the book's publication in 1996.
Shortly after the ordinance was enacted, Erotic City closed its 26-booth video arcade and stopped offering exotic dancing - and, two months later, Pender sued the county for violation of its First and Fourteenth Amendment rights.
"The decision that just came down, though, was on my complaint on the amended ordinance," Pender pointed out. "Basically, from the initial ordinance, where there were numerous issues raised, a lot of procedural issues, they went back to the drawing board and the county's attorneys, Mark Jones and Lisa Benjamin, did a very, very good job. You hate to say it, but everything I challenged in the first complaint was fixed. I don't like it, but I have to commend them. They were diligent. They weren't, the first time, and they got their asses handed to them."
"Fixed," though, may depend on one's point of view.
"Not only did they address all of the defects in the original ordinance," Pender continued, "they also then went out and said, 'Let's see what's around, rather than us doing it by ourselves,' and they found a very, very restrictive regulation that covered the arcade area, out of San Diego's Fantasyland case, and put that in their ordinance, and they found a very, very restrictive one that covered dance areas and procedural aspects out of Michigan and they put that in."
"The ordinance now says that a viewing booth cannot have any doors on it, and any customers have to be in line of sight from a manager of the business," Pender detailed. "We haven't done it yet, but the way the ordinance now reads, you could run a catwalk down the middle of the floor so you can see everything. The booths are completely open. They [the County] couldn't eliminate the booths, but they made it very non-private."
As for the strip club area, Pender said that the owners will have to do some creative redesign to comply with the new rules.
"They have to have a two-foot stage, and a dancer has to be six feet away," Pender explained. "There can be no touching. The customers can't approach within six feet, and there's a tip box, whereas before, the customers could put tips in the garters or something like that. You have to have 600 square feet [in the performance area]. It was a very, very tiny area, and now they have different space requirements, so it's going to be a change in the architecture. The lighting has to be so you can see, rather than a dimly-lit thing, but Kansas City wanted it a little bit further than that: The girls cannot be totally nude. The dancers in there have to be subject to the same regulations, which is that they have to have pasties, an opaque covering even over the nipples."
Prior to the ordinance, dancers could be fully nude.
According to newspaper reports, the ordinance was inspired by two incidents : A man pled guilty to having had sex with a 14-year-old girl in a so-called "orgy room" at the business, where the girl said that she had had similar encounters with 20 men, and a 16-year-old boy claimed to have been sexually assaulted outside the business, which is located in a rural area southeast of Independence, Mo. However, the Jackson County sheriff's office claimed that it had responded to 20 complaints in 2007, and more than 100 since 2004 for offenses such as assaults, car thefts and property damage by customers or others at Erotic City or in the immediate area. The business itself, which has been in operation continuously since 1984, has never been charged with an offense.
"You know, you hate to attack what you read in the paper, especially when they're quoting a 14-year-old girl," Pender disputed, "but there was no such thing as an orgy room, and I'm just speculating that what was referred to in the paper was a larger size booth. They had various size booths. They didn't have a room where there were couches and settees or anything like that. It was just a booth that was a larger size. And I'm not sure how much stock you want to put in the testimony of a 14-year-old."
Pender said he hasn't had a chance to review Judge Gaitan's latest ruling and so hasn't decided whether he'll mount an appeal.
"I haven't yet decided," he told AVN. "I haven't had a chance to study it, but from my perspective, once I saw the revised ordinance, again, I've got to hand it to them; it was very well crafted. They found the most restrictive ordinances that have been upheld around the country and put them in there, so it's a tough issue. But just because Judge Gaitan upheld it here, the Eighth Circuit has not ruled on the particular aspects in this area, so it's a question of, do you want to take a chance, even though it's been upheld in other jurisdictions, whether the Eighth Circuit is going to fall in line, and the odds are - my gut says they probably will fall in line, but they're not bound by those other opinions. They may say, 'Well, it's been upheld there, so what the hell?'"