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Injunction Sought on Adult Business Hours

Louisville, Kentucky- The ordinance limiting the hours strip clubs and adult bookstores can operate was not properly approved by the Metro Council, was enacted in deference to religion, and is causing irreparable harm to area businesses, attorneys for several adult businesses said yesterday.
In asking Jefferson Circuit Court Judge Stephen P. Ryan for a temporary injunction to block enforcement of the ordinance, the attorneys laid out what they said were several flaws in the ordinance.

But a lawyer for the county attorney’s office called the claims a “fishing expedition” that had little merit.

“They are out to win under any argument they can muster, whether real, perceived or just fiction,” said Bill O’Brien, chief of the county attorney’s civil division.

Ryan did not make any ruling after the six-hour hearing, saying later that he would probably issue a decision next week.

Until then police will continue to ensure that adult bookstores close by 1 a.m. and strip clubs offer no nude dancing after that time. So far, police have issued five citations.

The ordinance took effect last week after Ryan lifted a temporary restraining order.

The arguments presented yesterday by attorneys asking for an injunction included:

A video of a Nov. 17 discussion by Metro Council members on the proposed ordinance in which Tina Ward-Pugh, D-9th, discussed the Jewish and Christian Sabbaths as possible reasons why adult business hours were being limited on weekends.
Restricting hours on Saturdays and Sundays in deference to Christian and Jewish religious practices violated the constitutional prohibition against governments enacting laws establishing religions, the attorneys argued.

But O’Brien said there was nothing in the actual ordinance referring to religion and that Ward-Pugh’s comments represent only one member of the council.

“Even if you say Tina Ward-Pugh wanted to make it religious, you can’t say the council wanted to make it religious,” he said.

Claims that members of a council subcommittee did not properly approve the ordinance.
The committee should not, according to council bylaws, have been able to vote on the ordinance just one week after tabling it, according to Frank Mascagni, a lawyer representing Déjà Vu and P.T.’s Showclub.

“This may be a fatal flaw,” Mascagni told Ryan.

O’Brien said that the rule Mascagni cited applies to the Metro Council as a whole, not a committee, and that the ordinance was properly approved.

In an interview yesterday, the chairman of that committee, Bob Henderson, said Mascagni and the other lawyers for the adult businesses “are making a big something out of nothing.”

Henderson said the committee did not properly approve the ordinance on Nov. 17, so members came back the next week and passed it.

“We made a mistake … but it was straightened out,” he said. “We’re not going to give up. So they might as well get ready for that.”

Statements that the ordinance is causing irreparable harm to adult businesses, costing them money, customers and reputation they may not regain even if the ordinance is struck down, the attorneys said.
Brian Franson, the area director for P.T.’s, testified yesterday that his business has dropped significantly – up to 50 percent loss in sales – since the ordinance went into effect last week.

“Every one of our guests got up and left,” Franson said of the first night the ordinance was enforced and dancers had to put on clothing.

The hours after 1 a.m. are the most important and prosperous for adult businesses, Mascagni argued.

“It’s like telling a bank you can’t open until 4 p.m. to midnight,” he said.

O’Brien said that case law is clear on allowing government to regulate hours, and that limiting early-morning hours would help cut crimes in the clubs’ neighborhoods.

“The likelihood of us winning this case,” O’Brien said during the hearing, “is substantial.”

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