FRANKFORT, KY — Anyone who follows news related to brick and mortar adult entertainment businesses – strip clubs, bookstores, video rental shops, etc. – by now should be familiar with the assertion that such businesses produce negative “secondary effects,” such as increased drug use, prostitution and/or decreased property values. The “secondary effects” argument serves as the primary justification for county and municipal imposing restrictions on adult businesses, and it is crucial to the legal arguments employed by government attorneys when they defend their adult business regulations against legal challenges.
In Kentucky this week, an attorney representing PT’s Show Club in Louisville asked the state Court of Appeals for an opportunity to challenge Jefferson County’s claim that businesses like his clients’ produce such secondary effects – hoping to undermine the support for the county’s ordinance regulating local adult businesses by demonstrating that their rationale for the ordinance is flawed.
Michigan-based attorney Bradley Shafer asserted to the Court of Appeals Wednesday that he should be permitted to argue in Jefferson County Circuit Court that adult businesses do not impose the kind of secondary effects that the county claims.
Three judges from the state court of appeals, Joy Moore, Sara Combs, and Michael Henry, listened to about 20 minutes of arguments from Shafer and from attorneys from the County, according to the Louisville-based Courier-Journal.
Arguing before the appellate panel yesterday, Shafer said that arguments refuting the secondary effects claim were not made when the circuit court upheld the ordinance in 2004, when a lawsuit was filed challenging the ordinance.
According to the Courier-Journal, attorney Scott Bergthold, the outside counsel hired to represent the Jefferson County attorney’s in the case, said the question was settled because both sides had agreed not to argue the secondary effects when the case was heard in 2004.
Shafer countered that relevant case law “does not say we don’t get a chance to challenge that.”
The ordinance that Shafer is challenging holds, among other things; adult businesses must close between 1:00am and 9:00am; dancers at adult clubs must, at a minimum, wear pasties and g-strings; adult business owners and their employees must be licensed; strip club patrons may not touch or directly give tips to dancers; and owners with a 20-percent or greater stake in a club must identify themselves in the process of obtaining a permit.
According to the Courier-Journal, the circuit court upheld all the provisions except the rule prohibiting customers from touching dancers, and the rule that all significant stake-holders identify themselves during the permit process.
Arguing before the panel yesterday, Shafer conceded that the county has the right to regulate his clients’ businesses, but that right only extends so far.
“You can control secondary effects, but you can’t put them out of business,” Shafer said.
Judge Moore quickly shot back that “Metro is not putting them out of business.”
“Your honor, that’s great to say,” responded Shafer, “but that is not the case.”
About 25 observers were in the small courtroom, many of them members of ROCK, a citizen’s group that supports the ordinance, according to the Courier-Journal.
“Our local government has the right to regulate adult businesses to protect our community,” said ROCK president Bryan Wickens. “Citizens care and want the ordinance upheld.”
Judge Moore said that the court will issue its decision in the next four to six weeks.
