ROCK files brief asking judge to reject Theatair X’s dismissal claim

Clark County

Discussion

November 2, 2009

Petition with 8,000 names also submitted to judge

By MATT THACKER The News and Tribune Mon Nov 02, 2009, 09:57 PM EST

Reclaim Our Culture Kentuckiana — a group, commonly known as ROCK, that has vocally opposed Theatair X — filed an amicus brief Friday calling for Washington County Circuit Court Judge Robert Bennett to reject the adult bookstore’s motion to dismiss.

According to ROCK, the brief includes a petition of 8,000 people who work, shop or live in Clarksville that oppose Theatair X. A hearing was held Oct. 20 in which attorneys for Theatair X argued that Clarksville’s ordinance regulating sexually oriented businesses is legally invalid and unconstitutional.

Theatair X, a business located off Veterans Parkway that sells adult-oriented materials, was cited in October 2008 by Clarksville authorities for staying open past 1 a.m. In May, it was cited 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.

ROCK President Bryan Wickens said he was concerned after sitting through the hearing in Salem that the voices of the people in Clarksville were not being heard. He said arguments Clarksville should have been making were not made at the hearing.

“We’re going to continue to be here until all the laws, not just some of them, are enforced,” Wickens said.

ROCK held a press conference Thursday to announce that an amicus brief would be filed Friday, but officials said they could not provide members of the media with a copy of the brief because it had not been finished. Wickens said then he could not discuss the contents of the brief.

The Evening News was provided with a copy of the brief Monday. Chris Lane, former Floyd County deputy prosecutor and candidate for judge, was hired prior to the hearing in Washington County in case ROCK decided to file an amicus brief.

One argument made by ROCK is that Theatair X has applied for and received six licenses from Clarksville without ever challenging the legal validity of the town’s ordinance. The brief states that case law supports the right of a community to enact laws to protect citizens from sexually oriented businesses before they inflict harm on that community.

“In short, the courts have repeatedly reaffirmed a local government’s right to take action to address/reduce the negative secondary effects associated with sexually oriented businesses by enacting content-neutral, time, and place and manner restrictions by way of local ordinances,” the brief states.

Attorneys for Theatair X argue that Clarksville has cited studies about the impact of such businesses that are outdated and focus on larger cities that are not comparable to a town the size of Clarksville.

ROCK points to the city of Renton v. Playtime Theatres Inc., which involved a city with a similar population to Clarksville. The 1986 Supreme Court decision found that the government of Renton, Wash., could use studies from cities of varying populations.

ROCK also included sealed documents that include an affidavit from a former FBI special agent who reportedly made nine visits to Theatair X over three years.

Chris Sturgeon, attorney for Clarksville, said he had not read the brief, but that he told Lane it was his client’s decision if they wanted to file one.

Wickens said Bennett will have the option to read ROCK’s brief and include it in the case file; read it and not include it in the case file; or reject it without reading it.