Kokomo Tribune; Kokomo, Indiana

June 19, 2013

Strip club case heads to court Tuesday

City wants near southside club shut down

By Scott Smith Kokomo Tribune
Kokomo Tribune

---- — The city of Kokomo and the owners of the Tease strip club are due in court next week, with the city seeking to permanently close the near southside club.

City planning officials revoked the club’s grandfathered zoning status in December after the owners were cited for allegedly violating the city’s zoning ordinance.

Without that “legal non-conforming use” status, the club can’t continue to operate as a sexually-oriented business.

The city’s zoning laws for sexually-oriented businesses passed in 2002, just after the Tease (then known as The Body Shop) began operating.

By starting up just ahead of the new ordinance, the Tease’s owners were guaranteed the right to operate as a strip club, despite the fact the building didn’t meet the setbacks required by the 2002 law. Under that ordinance, a strip club can’t be located within 1,000 feet of a state highway or within 1,000 feet of a church or a school.

The only caveat was that to remain a legal non-conforming use, the strip club couldn’t be expanded beyond 10 percent of its current size. Under the law, the club could only expand twice, and each time it expanded, it was subject to the 10 percent rule.

City officials said the new owners of the club, Brett Morrow and Dustin Ogle, performed one expansion last year, which added 19 percent more space to the club’s former size.

In a brief filed with Howard Superior Court 1 Judge William Menges, the club owners say the city failed to show evidence for claims the club was expanded by 19 percent in one shot.

City officials, however, say floor plans, submitted in 2003 and 2012 to the Indiana Alcohol & Tobacco Commission, clearly show a wall dividing the club from a separate business space. For years, the Comarella photography studio was located on the other side of the wall from the strip club, and in a response brief, city officials note the former photography business, at 101 E. Markland Ave., and the strip club, at 107 E. Markland Ave., had different addresses.

To expand the club, city officials say the club owners simply took out the wall, thereby adding another 970 square feet to the club.

The club owners, however, say the city knew of, and approved of, the club’s expansion before suddenly reversing course.

The owners say they worked closely with the city building inspector’s office for six months last year to obtain permission for several improvements, to have inspections performed on various aspects of the work and to obtain a temporary certificate of occupancy.

According to the club owners, they were in the process of making minor repairs the city had wanted when they received notice from Kokomo-Howard County Plan Commission Director Greg Sheline the club had been expanded beyond the allowed limit and would no longer be allowed to operate as a sexually-oriented business.

The owners also claim the city’s estimates of the size of the club, both before and after the expansion, are simply guesses and the city has no proof the expansion didn’t occur in stages.

City officials, however, say the size of the expansion was clearly shown in the 2003 and 2012 floor plans and the evidence presented to the Kokomo Board of Zoning Appeals, which upheld the plan commission’s notice of violation, was a firm basis for a decision.

In March, the city filed for an injunction in an attempt to force the club to stop topless dancing. Menges declined to issue a temporary injunction, however, and allowed both sides to submit legal briefs ahead of Tuesday’s planned hearing. The club has remained open and continues to operate as a strip club.

The city wants the club shut down completely, but the club owners’ attorney, Brian Oaks, said he doesn’t think the city has any right to seek a complete shutdown of the club, saying the owners have a valid liquor license.

“I don’t dispute they have a legal right to ask that The Tease stop operating as an adult entertainment business. I don’t think they have the right to ask the judge to lock the door,” Oaks said.

In the injunction filing, city officials said Kokomo Police officers conducted undercover surveillance on the club March 4 after hearing the club wasn’t complying with Sheline’s cease and desist order. Officers recorded and observed topless dancing.

Scott Smith can be reached at 765-454-8569 or at scott.smith@kokomotribune.com.