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Court favors city on adult entertainment issue

7/17/2009

By Tom Marshall
Senior Advocate writer
The Kentucky Court of Appeals has found in favor of the city of Mt. Sterling in regard to the legality of two of its ordinances dealing with sexually oriented businesses.
In a previous ruling, Montgomery County Circuit Judge Beth Maze granted the city summary judgment dismissing a lawsuit filed by LM Entertainment, operator of adult entertainment shop Video 110, contesting the legality of two city ordinances.
One ordinance dealt with the licensing of sexually oriented businesses and the other dealing with signs advertising such an operation.
LM appealed the decision and Appeals Court heard oral arguments in the case in March. The court rendered an opinion favoring the city last week.
The city has been represented in the case by City Attorney Crystal Brashear and Scott Bergthold, a Chattanooga, Tenn.-based attorney who specializes in defending city and county governments in similar cases. The LM appeal came from a team of lawyers led by C. Michael Hatzell of Louisville.
“I think it’s an excellent ruling ... and the appropriate one,” Bergthold told the Advocate this week.
He applauded Mayor Gary Williamson and the City Council for acting promptly by adopting a stricter ordinance dealing with sexually oriented businesses when Video 110 announced plans to open here.
Hatzell did not return a telephone message seeking comment.
The three members of the Appellate Court were unanimous in agreement that Maze’s ruling was the correct one.
“We find the two ordinances are constitutional and that summary judgment was proper,” Appellate Court Judge Janet Stumbo wrote in a legal opinion filed by the court.
Events that led to the dispute between the city and LM date back to 2006 when LM rented the old Shoney’s building from businessman John Allen, according to a statement of facts included in the court’s ruling.
LM, the statement said, planned to open a video and arcade business that also sold sexually oriented and adult materials.
On several occasions, according to the facts statement, LM attempted to obtain a business license from the city, but the city informed LM it would not do so until renovations and inspections had taken place. When renovation was complete that July, Jeff Prater, the planning and zoning administrator and building inspector for the city, and Michael Jones, the code enforcement officer, conducted an inspection that revealed explicit merchandise on display, the statement said.
At that time, the statement said, Prater gave owner Anthony Curry an adult entertainment business license application.
Curry believed he should have been given a regular business license application and turned in a standard business license form to the city a short time later, according to the facts statement.
Prater responded with a letter explaining he would not accept a standard business license because he believed the business was an adult oriented one, the statement reflects. He also explained if Curry had proof that he didn’t intend to operate an adult business he would hear it.
Curry didn’t respond, the facts statement says.
During the same time frame Allen submitted an application for a signage variance to erect a large sign for Video 110 that would be visible from I-64. The sign would have been larger than ordinarily allowed by a separate city ordinance.
In August 2006 the city’s planning and zoning board of adjustments conducted a hearing regarding the variance request, but no representative of Allen or LM appeared, according to the facts statement. The board, the statement said, denied the request because LM had not obtained any type of business license.
Shortly thereafter, the city passed a stricter ordinance dealing with sexually oriented businesses.
LM eventually began operating Video 110 without a business license and filed suit against the city on Oct. 23, 2006, claiming the new sexually oriented business license and sign ordinances were unconstitutional.
Maze later ruled in favor of the city by granting it summary judgment.
Attorneys for LM argued in its appeal that the city was not entitled to summary judgment because it did not demonstrate that its sexually oriented business ordinance was constitutional. The appeals court, in its opinion, said the updated ordinance was legal and any questions regarding the old ordinance would not be heard.
There were also questions raised as to whether or not the business’ sale of certain literature and novelty items qualified it as a sexually oriented business.
The appellate court found that Video 110 “is undeniably a sexually oriented business” based on the definitions outlined in the city’s ordinance.
The court also dismissed LM’s claims that the adult business license was a violation of the First Amendment protection of freedom of speech and that it was violated rights to due process.
As for the signage, LM argued that the ordinance, which regulates the physical characteristics of signs, is also unconstitutional as it was applied, but the court disagreed.
“While signs are a form of expression protected by the Free Speech Clause, they pose distinctive problems that are subject to municipalities’ police powers,” Stumbo stated in the court opinion. “Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land and pose other problems that legitimately call for regulation. It is common ground that governments may regulate the physical characteristics of signs—just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.”
Further, the sign ordinance allows for appeal to the city’s board of adjustments, which provided LM due process, the court found.
At this point, LM may file a motion requesting a discretionary review with the Kentucky Supreme Court for reconsideration of the case. It was not immediately clear whether LM plans to do so.
Bergthold said the appeal