Clark County (The Evening News)
Judge dismisses citations against Theatair X
Attorney says judge found ordinance was not valid
The town of Clarksville’s legal case against Theatair X was dismissed Monday as a judge ruled the town’s ordinance is not valid and therefore cannot be enforced, an attorney for the adult bookstore said.
Washington County Circuit Court Judge Robert Bennett issued the ruling but ordered that the court not release the decision until it had confirmed all attorneys were notified. As of the end of the day Monday, not all of the attorneys had responded.
Joan Henderson, attorney for Theatair X, said the judge granted their motion to dismiss the case and all of the citations against the business.
The adult bookstore was cited in October 2008 by Clarksville authorities for staying open past 1 a.m. It was cited in May for holes between the [peep show] booths, inadequate lighting, doors on the booths and not having a straight line of vision from the front desk to the booths.
Attorneys for Theatair X filed a motion last January seeking dismissal and then argued their case before the judge at a hearing in October.
They argued that the town council did not go before the plan commission or hold a public hearing before passing the ordinance, as is required by law.
Town attorney Chris Sturgeon admitted the zoning provision of the ordinance was not validly enacted, but he argued the rest of the ordinance is valid, since zoning deals only with the location of the business and not the issues brought up in the citations.
According to Henderson, the judge stated that the town council had accepted the ordinance in its totality and so it cannot just choose to enforce part of it.
Attorneys for Theatair X also had argued that the ordinance was not constitutional.
“[Bennett] didn’t go into the constitutionality of the argument,” Henderson said. “He based the decision on the construction of the ordinance itself.”
She said the judge stated it was not necessary to address the constitutionality of the ordinance, since he ruled the ordinance was not valid.
Sturgeon said the town council will hold a meeting Monday in executive session to discuss the court ruling. He and Town Council President Greg Isgrigg said they would wait until after the meeting to comment on the ruling.
Reclaim Our Culture Kentuckiana, or ROCK, has long opposed Theatair X and filed an amicus brief supporting Clarksville’s position in the case.
ROCK President Bryan Wickens said he is still “optimistic” after reading the ruling.
“This decision never addresses the activities taking place [in Theatair X]. It doesn’t say Clarksville doesn’t have the ability or authority to address the issues in Theatair X,” Wickens said. “The court dismissed this case on a mere technicality.”
Wickens said that the town council can immediately go to work to fix problems in the ordinance. He said it is better to know now than to have the case reversed on appeal later.
“This isn’t a win for Theatair X,” Wickens said. “I would call it a nothing.”
He said there are still “unimaginable acts” taking place at the business — such as sex in the peep show booths — and he does not believe the people of Clarksville will tolerate them.
Henderson would not predict whether or not the town will appeal or rewrite the ordinance. She said she is pleased with the court’s decision, but acknowledges that a business such as Theatair X will always draw criticism from some people.
“Nobody’s making you go into the business,” she said. “There are some in the community that want to regulate what you see, what you write, what you experience. That’s not the way our country was put together.”
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