Federal judge: Township didn’t violate cabaret owners’ free-expression rights

Wednesday, May 24, 2000

An Ohio township did not violate the First Amendment rights of the owners of an adult cabaret even though township officials passed an adult-business regulation after learning of the cabaret’s opening, a federal judge has ruled.

Robert Harris, Mark Potts and James King — who do business collectively under the name Threesome Entertainment — began construction on an adult cabaret in the unincorporated township of Fitchville in the fall of 1999. The township had no zoning regulations for adult businesses.

The three men started building the cabaret on land approximately 600 feet from the township’s only public park and 600 feet from a privately owned family campground.

After township officials learned of the nature of Threesome Entertainment’s business, they quickly adopted an adult-business regulation prohibiting any adult cabaret from operating within 1,000 feet of any “public playground or township park, including campground, public or private.”

The regulation also included a provision that no adult cabaret could operate without a license.

Harris and his business partners sued in federal court, contending that the regulations violated their First Amendment free-expression rights.

In February, a federal magistrate recommended that the plaintiffs receive a preliminary injunction requiring the township to issue the requested adult cabaret permit.

However, U.S. District Judge David Katz in April ordered both sides to submit more legal papers explaining how the U.S. Supreme Court’s March 29 opinion in City of Erie v. Pap’s A.M. affected their case.

In Pap’s, the high court ruled that a Pennsylvania city’s ordinance prohibiting public nudity did not violate the First Amendment.

On May 15, Katz ruled in Harris v. Fitchville Township Trustees that the township had not violated the First Amendment.

The plaintiffs argued that the township officials’ regulations should be viewed with greater judicial skepticism, in part because the officials passed the regulations in order to prevent the cabaret from opening.

However, Katz determined that the township trustees were not trying to suppress free expression but were “primarily concerned with the adverse secondary effects of having an adult cabaret located in close proximity to a campground and a playground where large numbers of children assembled. That interest is unrelated to the suppression of the erotic message conveyed by nude dancing.”

Katz cited Pap’s for the proposition that “the Township need not develop a specific evidentiary record (regarding secondary effects) supporting its ordinance.”

Katz also wrote that “a 1,000-foot distance restriction between adult cabarets and locations frequented by children is not patently unreasonable.”

The judge also rejected the plaintiffs’ challenges to the licensing provisions, which provide that the township must issue or deny a permit within 30 days unless “additional information … (is) … reasonably necessary to evaluate the application properly.”

The plaintiffs contended that this provision gives the township officials unbridled discretion to delay licensing decisions.

However, the judge sided with the township, writing: “The Township could reasonably have determined that a thirty-day default rule with an exception for unusual cases was the best way to address all contingencies.”

“We are leaning towards filing an appeal,” said Reese Wineman, the attorney for Threesome Entertainment. “The township officials admitted that they passed the ordinance to keep this business from opening.”

Daivia S. Kasper, attorney for the defendants, said that “the trustees did consider secondary effects and wish to control them to some degree in their township.”