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Yet Another City Battle with the Adult Biz

Kentucky – Lawyers for the city of New Albany and the owner of an adult video and novelty store stepped back yesterday from their fight over the store’s right to operate – but only to plan their legal tactics for next week.

“We’re going to take some action,” said Bart Betteau, the New Albany lawyer representing New Albany DVD, which opened Thursday afternoon at 601 W. Main St.

The store was closed yesterday, Betteau said, after the city issued an order Thursday evening saying it can’t operate without a certificate of occupancy from the city’s building commissioner certifying that it’s safe.

Betteau said he and his client want to decide the best course of action to take, adding, “We don’t want to do anything illegal.”

He said he intends to help the store re-open.

City Attorney Shane Gibson said he expects the city to take some additional legal action next week to make sure New Albany DVD remains closed. But he said he wants to research the legal issues further during the weekend.

New Albany DVD opened Thursday afternoon, about six hours before the New Albany City Council was scheduled to consider a six-month moratorium on sexually oriented businesses locating in town.

Steve Mason, a lawyer in Orlando, Fla., who also represents Danny Embry, the Kentuckian who operates New Albany DVD, acknowledged that the store opened quickly in part because his client learned that the City Council was considering the moratorium.

He and his client also decided to open the store because a city building inspector, who was scheduled to inspect the store and give it a certificate of occupancy, said city officials had ordered him not to inspect or issue the certificate.

Mason said that, in his view, such action violates his client’s constitutional right to freedom of expression, and he vowed to fight the city in court if it unfairly restricts New Albany DVD’s operations.

The opposite viewpoint was expressed by many residents who packed Thursday night’s City Council meeting to encourage city government to prevent stores like New Albany DVD from locating in town.

“I’m here to ask the council to do what it can to stop what we feel is a blight on the community,” said the Rev. Marvin Cheek, pastor of the Main Street United Methodist Church, which is virtually across the street from New Albany DVD.

Letty Walter, a retired teacher and former member of the City Council, also urged the council to take whatever action is necessary to close the store down and prevent other businesses like it from coming to town. She called the adult entertainment industry “a cancer” attacking the community.

The City Council unanimously approved a resolution Thursday night establishing a six-month moratorium on the opening of adult-oriented businesses. Mayor James Garner signed it into law immediately.

Gibson said he believes New Albany DVD is subject to the moratorium.

“They were trying to jump the gun” by opening Thursday afternoon, Gibson said.

Because the business does not have the required permit from the city building commissioner to open, Gibson said, it’s his view it didn’t properly open and falls under the moratorium.

The moratorium is intended to give the council time to write and enact an effective ordinance regulating all kinds of adult entertainment.

The business’s failure to get a certificate of occupancy is to be considered at a hearing of the Board of Public Works March 9, Gibson said.

Embry and the owner of the building also failed to file documents with the New Albany Plan Commission that are necessary when there’s a change of occupancy in a building, Gibson said.

The building at 601 W. Main is the former site of the Tumblebus business and was sold by Tumblebus owners Larry and Brenda Scharlow to The River LLC in December for $185,000.

The only information about The River LLC on file with the Floyd County auditor’s office is that its agent is lawyer Thomas C. Little of Clearwater, Fla. Little didn’t return several calls for comment.

Mason said that his client, Embry, is a tenant of The River, and that he knows nothing else about the building’s owner.

Gibson said that when the occupant of a commercial building changes in New Albany, information about the change must be filed with the Plan Commission so that it can determine if the new occupant is appropriate for the area’s zoning.

The commission then would have to issue an improvement location permit for any remodeling and perhaps require the building owner or occupant to seek a zoning variance before a new business could open, Gibson said.

Neither Embry nor The River LLC has taken such action, Gibson said, and that failure could be the basis for a lawsuit in Floyd Circuit Court asking for an order preventing the store from operating until the required permits and zoning approvals have been granted.

Gibson said that he believes such action is likely, but he will consider it further over the weekend.

Betteau and Mason said they are considering a suit in federal court against the city for refusing to allow an inspection and certificate of occupancy for New Albany DVD.

Betteau said that he believes the city has violated his client’s property rights and right to freedom of expression by refusing to inspect the building. But he, Mason and Embry haven’t yet decided what they will do, Betteau said yesterday afternoon.

The building was closed yesterday afternoon, and a recreational vehicle that had been parked nearby was gone.

But a sign saying “Adult Retail Store Now Open” was still hanging on its wall, and a rack of movies was visible from its front door.
 

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