CLARKSVILLE, Ind. (NEWS AND TRIBUNE) - Adult theater and business Theatair X has filed a court appeal following a recent decision by the Town of Clarksville to revoke its business license based on multiple alleged zoning code violations.
The appeal, filed by attorneys for the business May 6 in Clark County Circuit Court No. 2, comes after a unanimous vote by the Clarksville Town Council on May 2 to uphold the license revocation. The business and its attorneys were served notification by the Clark County Sheriff's Office on May 3, returns of service documents show.
The most recent appeals document asserts that the intent to revoke the theater's business license, filed in February by Clarksville Building Commissioner Rick Barr, is invalid and unconstitutional.
The February notice came after four people were charged earlier that month with public indecency and public nudity during an undercover police operation in one of the business' two main theater areas. Barr cited multiple zoning code violations, including that the business owners had allowed such acts to take place, and that Theatair X had had a prior suspension within the past year.
In November, the business had a brief license suspension due to alleged zoning code violations pertaining to openings between the private booths.
A zoning code amendment was passed in April 2018 by the Clarksville Town Council pertaining in part to businesses within the "Adult Business District" of town.
"Sexual acts ... sometimes occur at unregulated adult entertainment businesses ... especially those which provide private or semi-private booths, rooms or cubicles for viewing films, videos or live sexually explicit shows," it reads in part. "These acts constitute a public nuisance and pose a risk to public health through the spread of sexually transmitted diseases."
The amendment also states that the purpose of the district is to provide standards to separate these "objectionable uses from other permitted uses," and that "It is not the intent of this district to suppress any speech activities protected by the U.S. Constitution or the Indiana Constitution, but to enact a district to further the content-neutral government interest of the Town ... with the controlling of secondary effects of adult businesses."
Theatair X attorneys say the ordinance wasn't properly enacted and maintain that the November suspension wasn't valid, since the property owner, AMW Investment, and not the business owner, Midwest Entertainment Ventures, was notified in writing. Attorney Greg Fifer, who represents the building commissioner, has said that there was no public listing showing Midwest Entertainment Ventures was the business owner; only AMW was listed.
The business was, however, put on notice, through what they say was a courtesy letter sent to the business' local counsel, Dave Mosley. At that time the business worked to remedy violations and the suspension was lifted in late November.
Last week's appeal further states that Theatair X has five separate licenses and to not specify which of them is being revoked is a matter of prior restraint. It also states there is no evidence to indicate business owners were aware of illegal sex acts on the premises.
"The current effort to revoke the license is merely the latest effort in a multi-years effort by the Town to harass, annoy and persecute and destroy the licensee's business which effort is an unconstitutional violation of the licensee's First Amendment rights and its constitutional rights to conduct business," the appeal states, in part.
The business requests that the appeal be granted and license revocation vacated or, if necessary, to remand the case back to the town council for a new hearing. It also requests damages be awarded for the alleged violation of its constitutional rights.
Under ordinance, the town must afford Theatair X a provisional license during the appeals process. In the meantime, attorney Mosley confirmed the business has been operational and said via text message he looks forward to a positive resolution for his client, Theatair X.
“We expect to be successful in this case,” he said.