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Nitro Club Owner argues that Boulder abused his First Amendment rights

Boulder, Colorado- A downtown Boulder strip club is taking off the gloves — along with everything else — in a complaint that accuses city officials of failing to respect the First Amendment.

But the city’s lawyers say Nitro Club has been treated fairly. They say the complaint is premature and frivolous because the club’s owner, Michael Cobb, hasn’t even gone before the Planning Board yet to seek permission to stay open.

Cobb has been battling city officials since the strip club opened late last year in an alley behind the Pearl Street Mall. In a complaint filed in Boulder District Court last month, he says the city’s zoning guidelines are subjective — and accuses city officials of abusing that subjectivity to shut down the club “based upon the content of speech presented at the business.”

Soon after media reports about the club appeared, city inspectors visited and found dozens of violations, which Cobb fixed over the next few months.

But city zoning officials identified another problem with the club that’s proved harder to fix.

Cobb claims his business is a restaurant by virtue of the sodas and “set-ups” of cups, ice and cut-fruit for the booze that members bring themselves. City officials disagree, and in February deemed the business an “indoor amusement establishment.”

That distinction matters because under city zoning laws it’s legal to open a restaurant downtown without jumping through any hoops. Operating an indoor amusement establishment, however, requires going through a use review process before the Boulder Planning Board.

Cobb won one round of that fight in April, when members of the Board of Zoning Adjustment agreed that the club was a restaurant. But members of the Planning Board reversed that decision, ruling that Nitro Club was an indoor amusement facility and would need to go through use review.

Instead of going before the Planning Board again, Cobb and his lawyer went to court. His complaint says the original zoning board decision needed to be called up within 14 days to be overturned; Planning Board members waited 20 days to do so.

The suit also says Boulder’s ordinances give officials too much leeway in determining how to apply zoning and other rules.

During debates before the zoning and planning boards, Michael Gross, Cobb’s lawyer, said his client’s business — a night-time club whose patrons enjoyed alcohol — was functionally identical to billiards clubs down the street, but was being singled out for an onerous review process because the city didn’t want a strip club downtown.

Gross did not return calls seeking comment Friday.

Erin O’Brien, an assistant city attorney for Boulder, said the fact that Cobb’s club has a kitchen doesn’t make it a restaurant. Other indoor amusement establishments, like movie theaters, also serve food — and would be required to go through a use review process if they opened downtown.

In her response to the lawsuit, O’Brien requested that the judge award the city attorneys fees for dealing with the complaint. That’s because it’s far too early to go to court, since planning officials haven’t said the club can’t open, she said.

“They haven’t even completed the use review process, and there’s a good chance that they’ll be able to stay open once they go through that process,” she said.

Both sides are now waiting for a judge’s ruling. If a judge sides with the city, Cobb will have to go through the use review process to see if his club’s employees can keep taking their clothes off. If a judge sides with the club, it will stay open.

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