Theatair X attorney says ordinance unconstitutional in Clarksville

Hearing on alleged violation continued until May 20

By MATT THACKER

Attorneys representing Theatair X are arguing that a Clarksville ordinance regulating how late sexually oriented businesses can stay open is unconstitutional.

“I think it’s unconstitutional and has violated the zoning rules,” attorney Joan B. Henderson said of the ordinance. “There are certain procedures that have to be followed with an ordinance of this nature, and [Clarksville Town Council] they did not follow those.”

The adult video store was cited Oct. 3 for staying open too late. A town ordinance states that sexually oriented businesses are not allowed to be open between 1 and 8 a.m.

In late January, Henderson — along with a law firm from Ohio which also is representing Theatair X — filed a motion to dismiss the case in Clarksville Town Court on the grounds that the ordinance is unconstitutional.

The motion argues that the ordinance has a negative economic impact on the store by “severely limiting the times in which potential customers can purchase or view the constitutionally protected expressive materials sold at the defendant’s business.”

The motion also states that the town council did not go before the plan commission or hold a public hearing as required by law.

A hearing had been scheduled for this week, but it has been continued until May 20. The hearing has been continued at least four times. Henderson said she expects town Judge Samuel Gwin will decide on the motion at the hearing.

The town’s attorney, Chris Sturgeon, said he is still working on his written response and will not comment on the motion until he finishes his legal research.

Henderson also denied allegations from Reclaim Our Culture Kentuckiana, or ROCK, of illegal activity inside Theatair X, including people paying for sex.

ROCK President Bryan Wickens said at a press conference in November that a former FBI agent went inside the establishment undercover and witnessed the illegal activities.

“There have never been any arrests made at Theatair X,” Henderson said. “ROCK did not disclose the name of their former FBI agent, and if he was there and saw those things, he should have called police ... if he exists. I don’t know.”

Sturgeon agreed that criminal allegations would not be handled by the town.

“If somebody believes there are criminal violations, those should be taken to the prosecutor’s office,” he said.

MaryAnn Gramig, research and policy coordinator for ROCK, said she is not aware of ROCK officials making any contact with law enforcement but says that is not their responsibility.

“It’s not ROCK’s job to make sure the police does its job,” she said. “We just want the town to enforce its own ordinances.”

Gramig also is upset that only one citation has been issued, when she said many violations have been reported to the town council.

ROCK wants Theatair X to be fined for each day it has remained open, but Sturgeon said there will only be one fine of $2,500 or less.

Any violation may result in a fine not to exceed $2,500, the ordinance states. It also states that each day the sexually oriented business is in violation is a separate offense or violation.

That would result in a fine of more than $500,000 if they were fined for each night from October to May. However, Theatair X has only been cited for being open late one time.

Henderson said she does not know whether Theatair X currently remains open past 1 a.m., but Gramig said it does.

“If you go over there tonight at 1 a.m., it will be open,” Gramig said.

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