Kokomo Tribune; Kokomo, Indiana

June 26, 2013

Judge throws wrench in Tease battle

Judge questions constitutionality of city ordinance

By Scott Smith Kokomo Tribune
Kokomo Tribune

---- — Howard County Superior Court 1 Judge William Menges may have thrown a big wrench into the ongoing court battle over the Tease strip club Tuesday when he questioned whether the city’s adult business ordinance is even constitutional.

The strip club owners are seeking a stay of a December Kokomo Board of Zoning Appeals decision to bar the club from offering adult entertainment. Attorneys for the city of Kokomo are going even further than the zoning board by seeking an injunction to have the club permanently shut down.

Both sides were in court Tuesday to present arguments for and against the stay request, with the club owners arguing the BZA relied on hearsay when it ruled the club’s expansion exceeded zoning limits.

City planning officials revoked the club’s legal non-conforming use status — which allowed the club to offer topless dancing despite not meeting minimum setback requirements — after the owners said they’d already spent more than $200,000 remodeling the near north side club.

“They never once said, ‘You might be non-conforming’ until the very end, when [the owners] were asking for an occupancy permit,” attorney Brian Oaks said. “At the very least, they acted like they were being good government officials to us.”

Central to the owners’ case is the contention that the city relied on a hand-drawn line, marked on a blueprint, which showed where a dividing wall once stood. The city claims the removal of the wall created an additional 907 square feet of space for the club. By expanding the club that much, the owners violated a provision in the zoning code which says a non-conforming establishment can only be expanded twice, and each expansion can add no more than 10 percent to the original footprint.

Oaks contends the zoning provision is only meant to address the footprint of the building, not the removal of interior subdivisions.

Brian Zaiger, an attorney with Indianapolis firm Krieg Devault, said it was beyond Menges’ authority to reweigh the evidence of the case, and the judge’s options were either to grant the stay or to send the case back to the BZA for additional fact finding.

But instead of ruling on the stay Tuesday, Menges indicated he’ll probably hold off on any rulings until both sides meet in court for a third time July 23.

Menges also broached the issue of constitutionality for the first time Tuesday, saying the standard for regulating First Amendment free speech issues was higher than the standard needed to determine zoning issues.

“The question becomes, can you regulate this kind of activity [with the city’s zoning ordinance],” Menges said.

Zaiger disagreed, arguing the issue was beyond the scope of the case, but Menges pressed ahead.

“I’m not taking a position, but I’m stating questions, whether we have to look at the constitutionality of the underlying ordinance — as broadly as it’s written,” Menges said.

Menges said his primary concern was the rule limiting expansion, and why the law limits expansion of non-conforming uses.

From Tuesday’s proceedings, it appears the door has been opened for Oaks to argue the city’s adult entertainment zoning rules aren’t valid.

“The city’s zoning ordinance is as clear as mud,” Oaks said, referring to adult entertainment provisions passed just after the Tease — then known as the Body Shop — opened. Those provisions limited where adult entertainment businesses can be located in the city.

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